(dissenting) — Contrary to the plurality’s conclusion, Brett’s sentence of death cannot be sustained on the record before us. The issues which require the reversal of Brett’s sentence are: (1) the trial court’s failure to grant him a continuance to secure an expert’s opinion on whether he suffers from fetal alcohol syndrome; (2) the disproportional*218ity of his sentence; (3) the scope of the evidence admitted to rebut his mitigation witnesses; and (4) the instructional error suggesting unanimity was required before the jury could reach a final verdict.
The trial court’s denial of Brett’s motion for a continuance to further investigate the possibility he suffers from fetal alcohol syndrome is reversible under an abuse of discretion standard because it was based on invalid grounds. Moreover it frustrated Brett’s right under the United States Constitution and under RCW 10.95.070(1), (2), and (6) to meaningfully argue the issue of mitigation. Finally, it prevented the jury from making an informed evaluation of whether the State had shown insufficient mitigating circumstance to warrant leniency — the jury’s chief function at the sentencing phase. See RCW 10.95.060.
I write also to point out that the treatment of the proportionality issue in Justice Dolliver’s opinion is untenable both logically and jurisprudentially. That opinion maintains the fact a crime falls within the purview of the aggravated murder statute "ensures its proportionality”, and that our only obligation is to "find that aberrant or 'disproportionate’ case”. Designated majority, at 211.
This cannot be correct. If the imposition of death in a given case were proportionate simply by virtue of coming within the scope of RCW 10.95, the legislative requirement in RCW 10.95.130(2)(b) that we compare the aggravated murder case at hand to other "similar” aggravated murder cases would be senseless. It is an elementary tenet of statutory construction that we do not construe provisions to be nullities.
Justice Dolliver’s opinion replaces the method by which the Legislature has determined we are to decide the issue of proportionality with its own version of what the statute requires, a version which not only is irreconcilable with the statute’s terms, but is completely unworkable. If RCW 10.95 "ensures proportionality”, can there ever be a "disproportionate” case? If so, by what process, and according to what *219standards, are we to identify it? The designated majority offers no guidance.
The result is that an approach purportedly designed to avoid constitutional difficulties increases rather than decreases the likelihood the death penalty will be imposed in an arbitrary and standardless manner, in violation of the equal protection clause of the fourteenth amendment to the United States Constitution. See Furman v. Georgia, 408 U.S. 238, 306, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972). This approach is particularly unfortunate because it is not necessary to flout legislative intent to avoid constitutional pitfalls. As my discussion of proportionality will demonstrate, the statute itself establishes a structure which may be accommodated to accomplish its intended function, ensuring the death penalty is not arbitrarily imposed.
I would also reverse Brett’s sentence of death because the scope of the evidence introduced to rebut the testimony of a mitigation witness exceeded its permissible scope under State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984) (Bartholomew II), and introduced highly prejudicial evidence before the jury.
Finally, the jury instructions at the sentencing phase were confusing and created the misimpression unanimity was required before the jury could reach a final verdict.
I
Failure To Grant a Continuance
Brett requested a continuance or abatement of the penalty phase proceeding until he could secure an expert opinion and evaluation to ascertain the existence of fetal alcohol syndrome or fetal alcohol effect.1 The motion was denied. Brett maintains the denial constitutes an abuse of the trial court’s discretion.
*220Brett’s motion for a continuance contained a declaration by one of Brett’s attorneys indicating that the symptoms of fetal alcohol syndrome or effect include impulsive behavior, inability to fully understand the consequences of one’s actions, violent outbursts of anger, and irrational behavior. The motion explained the need for a continuance as follows:
The evidence in the penalty phase has indicated that the defendant’s mother drank heavily during her pregnancy with the defendant and that there is a very high probability that he is the victim of Fetal Alcohol Syndrome or Fetal Alcohol Effect. The defense requests that the sentencing hearing in this matter be continued for 1 month to allow the defendant to be evaluated by a qualified medical doctor to determine if he is in fact the victim [of] damage to his brain during the fetal period.
Justice Dolliver’s opinion correctly notes that failure to grant a continuance is reviewed under an abuse of discretion standard. See, e.g., State v. Williams, 84 Wn.2d 853, 855, 529 P.2d 1088 (1975), overruled on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975). Although the standard of review is deferential, however, the denial of such a motion may, under certain circumstances, operate to deny a defendant a fair trial and due process of law. State v. Williams, 84 Wn.2d at 855 (citing State v. Cadena, 74 Wn.2d 185, 443 P.2d 826 (1968)). Accordingly, a trial court’s denial of a motion for a continuance should be carefully evaluated. As the Cadena court explained, "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” Cadena, 74 Wn.2d at 189 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 11 L. Ed. 2d 921, 84 S. Ct. 841 (1964)).
The trial court’s denial of the motion for a continuance was premised on two notions, both of which are untenable even under an abuse of discretion standard. The court reasoned that the evidence would not be useful to the jury, and that the "State and victim” would be unduly burdened by a delay. Report of Proceedings vol. 17, at 149-50. The desig*221nated majority cites these reasons yet fails to appreciate their import, which is to invalidate the trial court’s decision.
First, the trial court’s opinion that expert evidence would not have been crucial in this proceeding was unwarranted.
If Brett actually does suffer from fetal alcohol syndrome, and the jurors had heard an expert so testify, it is possible that fact alone might have inclined them toward mercy in evaluating the sentence Brett should receive.
Second, an expert’s evaluation of whether Brett actually suffered from fetal alcohol syndrome would also have permitted the jury to make an informed — rather than a speculative — evaluation of Brett’s mental condition and his capacity to appreciate the wrongfulness of his conduct, both of which are considerations the Legislature has expressly indicated are appropriate inquiries in the penalty phase of a capital case. See RCW 10.95.070(1), (2), and (6) respectively. (In determining whether the State has proved insufficient mitigating circumstances to merit leniency, the sentencer may consider any relevant factors, including but not limited to the following: whether the defendant does or does not have a significant criminal history; whether the murder was committed while the defendant was under the influence of extreme mental disturbance (not amounting to insanity or diminished capacity); or whether the defendant’s capacity to understand the wrongfulness of his conduct was substantially impaired as a result of mental disease or defect.
Likewise improper was the trial court’s assumption the effect on the State of a relatively brief delay should outweigh the Defendant’s right to present an informed argument about the presence of factors which would favor leniency in sentencing. This is particularly true in a capital proceeding where the defendant is subject to the most severe sanction available under our sentencing scheme. The focus of the court’s concern therefore should have been to assure a proceeding which permitted the most informed consideration by the jury of the question whether the State had *222shown an absence of sufficient mitigating circumstances to merit leniency.
The trial court’s denial of the motion for a continuance compromised Brett’s capacity to fully present mitigating circumstances to the jury. The denial thus derogated from his right under the United States Constitution to have the sentencer consider as a mitigating factor "any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death” under Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). See also Eddings v. Oklahoma, 455 U.S. 104, 110, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982).
The court’s denial of the motion is particularly significant in the sentencing phase of a capital case because consideration of circumstances which may warrant mercy is not only relevant, it is integral to the task of properly deciding whether the death sentence should be imposed on a particular defendant. See Harris v. Blodgett, 853 F. Supp. 1239, 1268 (W.D. Wash. 1994) (citing Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976)); Skipper v. South Carolina, 476 U.S. 1, 8, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986); Eddings v. Oklahoma, 455 U.S. 104, 110, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982); see also Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978); Deutscher v. Whitley, 884 F.2d 1152, 1161 (9th Cir. 1989).
II
Proportionality
My objections to proportionality review as conducted by this court are set forth in three parts. The first identifies the principal difficulties inherent in the statutory design; the second explains why the approach to proportionality review in Justice Dolliver’s designated majority is infirm; the third applies a proportionality analysis to Brett’s sentence of death and concludes the sentence is disproportionate.
*223A. Unconstitutionality of the Statutory Scheme as Drafted.
The statutory design under which the proportionality of a defendant’s sentence is evaluated is marked by significant flaws which, if not remedied by careful case law elaboration, render it infirm under the federal constitution. These defects have recently been acknowledged by a federal court. See Harris v. Blodgett, supra at 1287-91 (overturning a sentence of death in part because the sentence violated the federal constitution and our proportionality statute). Justice Dolliver’s opinion lists the defects identified by the Harris court, yet fails to address, let alone explain, why those concerns have no merit. See designated majority, at 208.
As I have repeatedly indicated, and as the Harris court noted, the chief difficulty in conducting proportionality review is the Legislature’s failure to adequately define key terms, which makes difficult both the sentencer’s task of deciding to impose the death penalty, and this court’s review of that decision. See Harris, at 1289; see also State v. Campbell, 103 Wn.2d 1, 41, 691 P.2d 929 (1984) (Utter, J., concurring in part/dissenting in part), cert. denied, 471 U.S. 1094 (1985); see State v. Jeffries, 105 Wn.2d 398, 434-35, 717 P.2d 722 (Utter, J., dissenting), cert. denied, 479 U.S. 922 (1986).
The statute directs the jury at the end of the sentencing proceeding to answer the following question: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” (Italics mine.) RCW 10.95.060(4). Yet the Legislature has not defined "mitigating circumstances”.
One commentator has drawn out the implications of this shortcoming:
What is a mitigating circumstance? Is poverty a mitigating circumstance? Is the lack of employment opportunities a mitigating circumstance? . . .
Is it a mitigating circumstance that the accused has, notwithstanding this commission of an aggravated murder, acquired a *224reputation of being unusually generous and charitable to other members of the community?
James E. Lobsenz, Unbridled Prosecutorial Discretion and Standardless Death Penalty Policies: The Unconstitutionality of the Washington Capital Punishment Statutory Scheme, 7 U. Puget Sound L. Rev. 299, 342-43 (1984).
Even if the statute defined mitigating circumstance, the Legislature has failed to provide any guidance whatsoever as to how to weigh one mitigating circumstance against another. The result is that the concept "mitigating circumstance”, far from reducing arbitrariness, can be used as a vehicle to rationalize the result the jury, and this court, wishes to reach. To the extent this is true, the statute permits the exercise of standardless sentencing discretion disapproved by the United States Supreme Court. See Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972).
With respect to review of the sentencer’s decision, RCW 10.95.130 requires this court to determine
(b) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. For the purposes of this subsection, 'similar cases’ means cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120;
(Italics mine.)
The statute identifies the cases to which the court should look as a threshold matter in selecting a pool of similar cases. Once that pool is selected, however, the statute is silent as to how to evaluate the cases substantively against one another. See Jeffries, 105 Wn.2d at 434-35 (Utter, J., dissenting). As the Harris court noted,
Neither the state legislature nor the State Supreme Court has determined what else should be considered in determining *225'similar cases, considering both the crime and the defendant.’ RCW 10.95.130(2)(b). What about age? Race? Sex? Pregnancy? . . . Disability? Mental Status? Diminished capacity? Emotional Status? Competence of counsel? Delay in prosecution? Motive? Acquittals of co-defendants? Can the Supreme Court go outside the confines of RCW 10.95.130(2)(b) to find "similar cases”? What about cases from other jurisdictions? What about similar crimes where aggravation was not charged? Similar first degree murder cases where aggravation could have been, but was not charged? Not guilty verdicts in aggravated and first degree murder cases where death was not requested and no reports were filed?
Harris v. Blodgett, 853 F. Supp. 1239, 1289 (W.D. Wash. 1994). See also Harris, at 1289 (recognizing the statute does not establish a coherent standard by which the selected cases can be reviewed).
In addition to the problems just discussed, the statute does not establish any procedure to be followed in instances where no "similar case” can be identified from among prior murder cases. See Harris, at 1289. See also W. Ward Morrison, Jr., Comment, Washington’s Comparative Proportionality Review: Toward Effective Appellate Review of Death Penalty Cases Under the Washington State Constitution, 64 Wash. L. Rev. 111 (1989), arguing that proportionality review violates article 1, section 14 of the Washington State Constitution.
Compounding the difficulties resulting from the absence of legislative direction with respect to the meaning of key terms is the Legislature’s failure to provide a regularized procedure by which the parties may be notified of which cases the court may deem similar, until after the decision in the case has been rendered. Harris, at 1289.
Another flaw in the statutory design is its failure to establish a mechanism for factfinding as part of the sentence review process. I made this point in State v. Jeffries, 105 Wn.2d 398, 435, 717 P.2d 722 (Utter, J., dissenting), cert. denied, 479 U.S. 922 (1986), where I indicated this court is effectively required to weigh the evidence of aggravating and mitigating circumstances "without the benefit of *226factual findings on many of them.” This difficulty was also recognized by the federal court reversing Harris’s sentence of death. There, the court correctly observed that the majority’s statements amounted to findings of fact; that an appellate court is generally prohibited from engaging in factfinding if the trial court has not entered its own; and that it is altogether unclear whether RCW 10.95.120 was intended by the Legislature as a mechanism for factfinding. See Harris, at 1290 (citing State v. Marchand, 62 Wn.2d 767, 770, 384 P.2d 865 (1963) and cases cited therein).
B. Unconstitutionality of the Review Process as Developed by This Court.
This court could have responded to the statute’s shortcomings by developing a jurisprudence which assigned meaningful content to key terms, and thus established a basis upon which a constitutional, reasoned and principled evaluation of the proportionality of a given sentence could proceed. Regretably, it has done the contrary.
With respect to mitigating circumstances, for example, this court has held that jurors are not required to specify what mitigating circumstances they considered in concluding that insufficient circumstances existed to merit leniency. See State v. Jeffries, 105 Wn.2d 398, 717 P.2d 722, cert. denied, 479 U.S. 922, 93 L. Ed. 2d 301, 107 S. Ct. 328 (1986). By virtue of that decision, we are now forced to review the jury’s conclusions as to the absence of sufficient mitigating circumstances without an adequate record as to the jury’s deliberations.
As for the term "similar cases”, the court has ignored the statutory mandate the court include in its proportionality review aggravated murder cases in which the death penalty was not imposed. See State v. Jeffries, 105 Wn.2d 398, 432, 717 P.2d 722 (1986) (Utter, J., dissenting), cert. denied, 479 U.S. 922 (1986); State v. Lord, 117 Wn.2d 829, 939, 822 P.2d 177 (1991) (Utter, J., dissenting), cert. denied, 113 S. Ct. 164 (1992). At other times, it has failed to define the universe of *227relevant cases with any analytical discipline. See In re Jeffries, 114 Wn.2d 485, 505, 789 P.2d 731 (1990) (Utter, J., concurring in part /dissenting in part) (discussing State v. Rupe, 108 Wn.2d 734, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988)); State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989). See also State v. Benn, 120 Wn.2d 631, 697-98, 845 P.2d 289 (Utter, J., dissenting), cert. denied, 126 L. Ed. 2d 331 (1993).
Finally, with respect to substantively evaluating the sentences imposed in similar cases, the court has remedied the absence of legislative guidance in the statute by sanctioning an "impressionistic” review of the appellate reports. See Lord, 117 Wn.2d at 911 (characterizing the statutorily mandated proportionality inquiry as a search for "family resemblances”). See also State v. Benn, supra.
Justice Dolliver’s opinion does not view the form judicial review has taken with consternation. On the contrary, it declares that "an even broader review” may be appropriate. Designated majority, at 209.
What that opinion characterizes as "an increasingly broad approach” to defining "similar cases” is more aptly described as the gradual degeneration of judicial review in capital cases, a process which reaches its low point with the introduction into our proportionality analysis of a new, and curiously elusive, concept: all murders falling within the purview of RCW 10.95 are, ipso facto, proportionate — except when they are not:
[T]he legislative guidelines contained in RCW 10.95 within which the jury must exercise its discretion ensure proportionality and eliminate the ability of the jury, in all but the most aberrant case, to impose the death sentence in a wanton and freakish manner. Thus, our review, to be constitutionally sufficient, need only find that aberrant or "disproportionate” case. RCW 10.95.130(2)(b).
Designated majority, at 210-11.
Although purportedly advanced to circumvent the problems inherent in proportionality review, see designated *228majority at 209, this statement of the law creates more difficulties than it avoids. If RCW 10.95 "ensures proportionality”, can there ever be a "disproportionate” case? If so, by what process, and according to what standards, are we to identify it? The designated majority offers no answers.
The articulation of our obligations under the statute, as expressed in Justice Dolliver’s opinion, also ignores the fact we need be mindful not only of constitutional norms, but also of the statutory directives the Legislature has imposed. It is therefore altogether inadequate to suggest that a review which passes constitutional muster is legally sufficient to uphold a sentence of death. We must also comply with a statute which specifically requires us to determine "[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” RCW 10.95.130(2)(b). Justice Dolliver’s opinion ignores this portion of the statute in favor of a rule which provides no guidance and hence makes it more, rather than less, likely the death penalty will be imposed in a standardless manner.
The danger created by the absence of analytical rigor in conducting proportionality review is dramatically evident at page 213 of the designated majority. The entire proportionality analysis amounts to a few sentences. There is no discussion of other cases, much less a methodical comparison of the record in this case with that in others as RCW 10.95.130(2)(b) expressly requires. The opinion simply asserts, in conclusory fashion, that "reviewing the totality of similar cases, we hold Brett’s death sentence is not disproportionate. There is no unique or distinguishing characteristic of the Defendant or of this crime which makes imposition of the death penalty wanton and freakish.” Designated majority, at 213.
At least two points are in order. First, to treat "aberrant” or "wanton and freakish” as the applicable standard is to oversimplify the legislative intent underlying RCW 10.95. The statute may have its shortcomings. It nevertheless repre*229sents a relatively sophisticated legislative effort to establish the basis for a rational review process. That process cannot properly be condensed into the designated majority’s summation of it. See designated majority, at 213.
To the extent the court’s review violates the statutory directive to engage in proportionality review, it may also violate Brett’s rights under the United States Constitution, because the failure of a state to respect the terms of its own statutory obligations may implicate a liberty interest under the Fourteenth Amendment against arbitrary deprivation by a state. See State v. Benn, 120 Wn.2d 631, 698, 845 P.2d 289 (Utter, J., dissenting), cert. denied, 126 L. Ed. 2d 331 (1993); Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993); see generally Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) (mandatory state procedures may give rise to a protected liberty interest); but cf. In re Cashaw, 123 Wn.2d 138, 144, 866 P.2d 8 (1994) (state regulations establishing only procedural guidelines for official decisionmaking do not create a liberty interest, but "laws that dictate particular decisions given particular facts can [do so]”.
In overturning a death sentence on grounds which included a violation of the defendant’s procedural due process rights, the federal district court in Harris recently held that when a state provides a right of review or appeal, the state must comply with the requirements of the due process clause of the Fourteenth Amendment. Harris v. Blodgett, 853 F. Supp. 1239, 1286 (W.D. Wash. 1994) (citing Evitts v. Lucey, 469 U.S. 387, 401, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985) and cases cited therein). The court explained this right includes "adequate, meaningful, notice of the procedure to be followed”, (italics mine) Harris at 1291, as well as a "meaningful opportunity to [be heard]” and to "argue the strengths of his position and to attack the position of the party who seeks to deprive [him] of his interest.” Harris, at 1287. The conclusory treatment of the proportionality issue in Justice Dolliver’s opinion denies Brett these rights.
*230Second, even if "aberrant” or "wanton and freakish” were the standard, and it is not, it is impossible to conclude a given sentence is not "aberrant” or "wanton and freakish” without engaging in some process of reflection, whatever that may be. The designated majority requires that one simply take its word on so important a question as whether a defendant properly may be executed, without revealing what that process is. It thus forecloses any possibility of review or even discussion of its conclusion. This approach violates the equal protection clause of the fourteenth amendment to the United States Constitution because it provides no safeguard against a death penalty which is applied arbitrarily and without meaningful standards. See Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (holding that the imposition of the death penalty in an arbitrary manner constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments to the United States Constitution); see also State v. Campbell, 103 Wn.2d 1, 42, 691 P.2d 929 (1984) (Utter, J., concurring in part/dissenting in part), cert. denied, 471 U.S. 1094 (1985); see also Harris, at 1291 (holding Harris’s proportionality review violated his due process rights under the federal constitution). A state sentencing scheme must provide a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Furman, 408 U.S. at 313 (White, J., concurring).
One commentator, discussing North Carolina’s capital sentencing statute, whose language is similar to our own, has explained the critical importance of properly conducting review as follows:
The statutory, constitutional, and philosophical validity of capital punishment is based in part on the notion that the discretionary process of imposing the death penalty will be subject to appellate review so that any abuse of sentencing discretion will be reversed. One reason so much weight is placed on this review process is the belief that review will be undertaken carefully, thoughtfully, rationally, and consistently. One tradi*231tional way that courts have assured that this faith is not misplaced is to give reasons that indicate how and why [the State’s Supreme Court] decisions are made. Thus, the failure of the . . . Court to articulate a theoretical model for its proportionality review casts doubt on the legitimacy of the death penalty in this State.
(Footnotes omitted.) F. Patrick Hubbard et al., A "Meaningful” Basis for the Death Penalty: The Practice, Constitutionality, and Justice of Capital Punishment in South Carolina, 34 S.C. L. Rev. 391, 464 (1982).
The same is true in Washington. To the extent this court continues to engage in reflexive affirmances of death sentences without structuring a careful, thoughtful and rational review process, the imposition and affirmance of capital sentences will continue to be illegitimate.
My recent dissent in State v. Benn, 120 Wn.2d 631, 845 P.2d 289 (Utter, J., dissenting), cert. denied, 126 L. Ed. 2d 331 (1993) demonstrates the task of engaging in proportionality review is not so elusive as to defy the capacities of this court. Other jurisdictions with statutes virtually identical to our own have structured a review process which addresses the issue whether the sentence of death is disproportionate in a manner which respects the legislative guidelines set forth in their proportionality statutes.
Pennsylvania, for example, has a proportionality statute which resembles our own. 42 Pa. Cons. Stat. Ann. § 9711(h)-(3)(iii) (Supp. 1994). The Pennsylvania Supreme Court examines the relative frequency of death sentences in the pool of similar cases it develops, finding death sentences not disproportionate where the vast majority of defendants in similar cases received the death penalty. See, e.g., Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986) (finding the death penalty not disproportionate where it was imposed in eight of nine similar cases), cert. denied, 480 U.S. 951 (1987); Commonwealth v. Whitney, 511 Pa. 232, 249-50, 512 A.2d 1152 (1986) (finding the death penalty not disproportionate where it was imposed in the "overwhelming majority” of similar *232cases); Commonwealth v. Pirela, 510 Pa. 43, 507 A.2d 23 (1986) (finding the death penalty not disproportionate where it was imposed in six of eight similar cases); Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985) (finding the death penalty not disproportionate where imposed in seven of seven similar cases).
North Carolina too has a statute requiring proportionality review. Its statute contains language identical to our own, insofar as it asks whether "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” N.C. Gen. Stat. § 15A-2000(d)(2) (1994). In that jurisdiction, the penalty of death is considered disproportionate if it has been imposed in less than half the similar cases. See, e.g., State v. Cummings, 323 N.C. 181, 198, 372 S.E.2d 541 (1988) (finding the death penalty not disproportionate where it was imposed in four of five other cases in which a defendant was convicted of a prior violent felony resulting in the victim’s death), cert. granted and judgment vacated on other grounds, 494 U.S. 1021 (1990); State v. Benson, 323 N.C. 318, 328-29, 372 S.E.2d 517 (1988) (finding the death penalty disproportionate where it was imposed in only 4 of 51 robbery-murder cases); State v. Stokes, 319 N.C. 1, 22 n.14, 352 S.E.2d 653 (1987) (finding the death penalty disproportionate because the codefendant received a life sentence and because North Carolina juries have recommended life imprisonment in especially heinous cases in 20 cases involving 24 defendants, while recommending the death penalty in 16 cases involving 17 defendants); State v. Rogers, 316 N.C. 203, 235, 341 S.E.2d 713 (1986) (finding death penalty disproportionate for a defendant found guilty of shooting one person and attempting to shoot another, where in the pool of similar cases, the death penalty was imposed in 23, and life sentences in 76), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985) (finding the death penalty disproportionate where it was imposed in 5 of 28 robbery-murder cases in the pool of similar cases); State v. Bon*233durant, 309 N.C. 674, 693, 309 S.E.2d 170 (1983) (finding the death penalty disproportionate where applied in 13 of 78 similar cases).2
It is notable the North Carolina Supreme Court has not been stymied in fulfilling its obligation to conduct proportionality review by the requirement that it consider similar cases. In the cases cited above, the court engaged in a process in which it justified its inclusion of particular cases within the pool of similar cases, based on the record, including but not limited to a consideration of aggravating and mitigating circumstances.
Two North Carolina cases, one in which the court invalidated the defendant’s sentence of death, and one in which it did not, demonstrate that it is possible to structure proportionality review in a manner that yields meaningful conclusions about the proportionality of a given sentence. At the very least, these cases establish that sentences of death are not affirmed reflexively in North Carolina, a conclusion which cannot be said of Washington.
In State v. Benson, supra, the North Carolina Supreme Court struck down the defendant’s sentence of death for a murder committed in the course of a robbery. The court identified 51 robbery-murder cases in the pool. Of those it found 44 had resulted in life sentences and only 7 in the sentence of death. The court reasoned that in 5 of these robbery-murder cases, the only aggravating circumstance was pecuniary gain, and that life sentences were imposed in 4 of those 5. The court then examined the circumstances of the one remaining case in which the jury had returned a sentence of death for a robbery-murder where the only aggravating circumstance was pecuniary gain. Although the mitigating circumstances in that case were weaker than in the case before it, the court noted the death sentence had been found dis*234proportionate. The court also noted that in the robbery-murder cases in which the sentence of death was upheld, all but two involved multiple killings. Although the court acknowledged the crime of the defendant before it was outrageous, it concluded the death penalty could not be considered proportionate. Benson, 323 N.C. at 328.
In State v. Cummings, supra, the North Carolina Supreme Court engaged in a similarly careful examination of cases and reached the opposite conclusion. The jury found the fact Cummings had a prior capital felony conviction an aggravating circumstance. The court selected its pool of similar cases by identifying five cases in which the defendant had been convicted of a prior violent felony resulting in the victim’s death. The court stated that in four of the five the jury imposed the penalty of death, notwithstanding the presence of mitigating circumstances. In the one case in which the jury recommended a life sentence there had been mitigating circumstances. In contrast, no mitigating circumstances existed in the case before the court. The court concluded that "[i]n the absence of substantial mitigation, we cannot say that defendant’s sentence is disproportionate when compared to other cases involving a prior homicide conviction.” Cummings, 323 N.C. at 198. The court also identified a case it considered bore a close factual similarity to the one it was considering in which the jury recommended the death penalty. There, the crime was similar; there were no mitigating circumstances, and the sole aggravating circumstance found was a prior violent felony. The court concluded, "[w]e find nothing in the record to meaningfully differentiate the instant case from [that case] or to demonstrate that this defendant is any less deserving of the death penalty than [the defendant].” Cummings, 323 S.C. at 199.
Whatever reservations one may have about the selection of the cases constituting its pool of similar cases, the very fact the North Carolina court respected its statutory obligation to compare the crime and the defendant with other *235similar cases, structured a rational and principled process of arriving at its determination, and saw fit to justify its decision, impart to its ultimate conclusion a legitimacy wholly absent from the designated majority and the plurality here.
C. Unconstitutionality of Imposing the Death Sentence as Applied in Brett’s Case.
If this court engages in a reasoned and systematic review of cases whose salient features resemble Brett’s, as the statute mandates, it would be apparent that Brett’s sentence of death is disproportionate and should be reversed. It simply cannot be said that capital punishment is generally imposed in cases similar to Brett’s.
RCW 10.95.130(2)(b) directs us to determine:
Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. For the purposes of this subsection, "similar cases” means cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120; . . .
(Italics mine.)
I have consistently maintained that if proportionality review is to have meaning, this court must, as RCW 10.95.130 directs, consider all the cases in which the defendant was found guilty of aggravated first degree murder, regardless of whether the death penalty was imposed or carried out in that case. RCW 10.95.120. See, e.g., State v. Lord, 117 Wn.2d 829, 939, 822 P.2d 177 (1991) (Utter, J., dissenting), cert. denied, 506 U.S. 856 (1992).
This court has held that a sentence is excessive or disproportionate if it has not "generally” been imposed in similar cases. In re Jeffries, 114 Wn.2d 485, 491, 789 P.2d 731 (1990); State v. Rupe, 108 Wn.2d 734, 767, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); State v. Harris, *236106 Wn.2d 784, 798, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987).
The approach I advocated in State v. Jeffries, 105 Wn.2d 398, 436, 717 P.2d 722 (Utter, J., dissenting), cert. denied, 479 U.S. 922 (1986), and which remains valid today, proceeds in two steps. The first involves electing a universe of similar cases from the statutorily defined pool by selecting the most salient factors which characterize those cases and comparing them to the case at hand. The second involves determining whether the death penalty has generally been imposed within that pool. If it has not generally been imposed, the sentence of death is disproportionate, and should be reversed. See State v. Jeffries, 105 Wn.2d at 436-37 (Utter, J., dissenting); In re Jeffries, 114 Wn.2d at 490; State v. Rupe, 108 Wn.2d 734, 767, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); Lord, 117 Wn.2d at 939 (Utter, J., dissenting).
The salient characteristics of the crime, for the purposes of assembling a universe of "similar” cases under RCW 10.95.130(2)(b) are the following: a single homicide of an adult, in which death was relatively immediate. The salient characteristics as they pertain to the Defendant are that Brett has a significant criminal record. Although he does have a criminal history, Brett has no previous murder or manslaughter conviction. Also significant are the mitigating circumstances in Brett’s case. He presented evidence he was exposed to alcohol in útero and may suffer from fetal alcohol syndrome as a result, has impaired cognitive ability, and suffers from severe diabetes and alcohol abuse.
Below are cases from the aggravated murder reports which may reasonably be considered "similar” to Brett’s insofar as the features of the crime or the defendants share salient features. This list establishes that defendants found guilty of similar crimes do not generally receive the sentence of death in Washington. Brett’s sentence is therefore disproportionate and must be reversed.
*237Paul St. Pierre
Report of the Trial Judge (Questionnaire No. 34(a)) (Pierce Cy. cause 84-1-00992-8). St. Pierre shot and stabbed his victim. The aggravating factor was that he committed the crime to conceal another murder. He had a previous aggravated murder conviction. The jury imposed life without the possibility of parole.
Donald Christopher Galbert
Report of the Trial Judge (Questionnaire No. 33) (Clark Cy. cause 84-1-000775). Galbert bludgeoned his victim to death with a pipe, smashing his skull. The aggravating factor was robbery. He had prior convictions for burglary, rape, larceny, forgery and dealing drugs. There were no mitigating circumstances. He received life without the possibility of parole.
James J. Daugherty
Report of the Trial Judge (Questionnaire No. 25) (Kitsap Cy. cause 84-1-00265-2). Daugherty shot the victim six times in the back of the head. The aggravators were concealment and robbery. Daugherty had a criminal history including five felony property offenses. The jury did not impose the death penalty. He received life without the possibility of parole.
Gus Allen Turner
Report of the Trial Judge (Questionnaire No. 28) (Clark Cy. cause 83-1-00067-0). Turner shot his victim in the chest. The report states he had an extensive record of criminal convictions under different names. The aggravating circumstance was that the homicide was committed in the course of a robbery. No mitigating circumstances are listed in the report. He received life without the possibility of parole.
David John Lennon
Report of the Trial Judge (Questionnaire No. 35) (Benton Cy. cause 84-1-00178-3). Lennon inflicted multiple gunshot wounds to the victim who had given him a ride in a car. The aggravating circumstances were that he was an escapee from Oregon, committed the crime in furtherance of a robbery and to conceal the commission of a crime. There were *238no mitigating circumstances. The death penalty was not sought.
Robert Wayne Hughes
Report of the Trial Judge (Questionnaire No. 23) (King Cy. cause 82-1-01979-4). Hughes shot and killed a law enforcement officer. He had prior convictions for assault, escape and murder. No mitigating circumstances appear in the report. He received life without the possibility of parole.
Jeremiah J. Bourgeois
Report of Trial Judge (Questionnaire No. 139) (King Cy. cause 92-1-06444-4). Bourgeois entered a store and shot the victim to death with a shotgun. The aggravating factor was that the victim was a witness or a participant in an adjudicatory proceeding. Bourgeois had three prior convictions for taking a motor vehicle, one for theft and one for criminal trespass. No mitigating circumstances appear in the report. The death penalty was not sought.
Charles Harris
Report of the Trial Judge (Questionnaire No. 38) (King Cy. cause 85-1-00093-1). Harris shot his victim to death. The murder was committed to conceal the commission of the crime or his identity. Harris had a prior murder conviction. No mitigating circumstances are listed in the report. He received life without the possibility of parole.
Constantine B. Baruso
Report of the Trial Judge (Questionnaire No. 112) (King Cy. cause 90-1-06199-6). Baruso shot his victim in the back. Three aggravating circumstances were present. No mitigating circumstances are listed. He received life without the possibility of parole.
Charles Graves
Report of the Trial Judge (Questionnaire No. 126) (King Cy. cause 92-1-00393-3). Graves shot and killed his ex-wife in the course of a burglary. He had three prior convictions for trespass and one for assault. There were no mitigating circumstances. He received life without the possibility of parole.
*239Dwayne Earl Bartholomew
Report of the Trial Judge (Questionnaire No. 3) (Pierce Cy. cause 81-1-00579-1). Bartholomew shot a laundromat attendant. The aggravating factors were that he committed the murder in the course of a robbery, and murdered the victim to conceal the identity of the perpetrator. His prior convictions included criminal trespass, theft, and possession of stolen property. No mitigating circumstances are listed in the report. The jury imposed the sentence of death.3
Benjamin Harris
Report of the Trial Judge (Questionnaire No. 29) (Pierce Cy. cause 84-1-01190-6). The murder was a contract killing. The victim was shot. Harris had a prior assault and manslaughter conviction. No mitigating circumstances appear in the report. He was sentenced to death.4
Of the 13 cases listed above which are similar to Brett’s in that the crimes involved a single homicide of an adult, and death was relatively immediate, it cannot be said the death penalty has generally been imposed. This is true even in cases arguably worse than Brett’s, insofar as the defendant’s history included a prior homicide and no mitigating circumstances were present. Brett has no prior homicide conviction, and he presented significant mitigating evidence. Under these circumstances, Brett’s sentence of death must be reversed under RCW 10.95.130(2)(b).
Ill
Penalty Phase Instructions
Brett maintains the penalty phase instructions violated federal and state due process and cruel punishment clauses *240by suggesting that a verdict of life must be unanimous. The majority asserts the instruction was not confusing. I disagree. Under Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992), cert. denied, 507 U.S. 951, 122 L. Ed. 2d 742, 113 S. Ct. 1363 (1993), an instructional error was committed.5
In Mak v. Blodgett, supra, the same instructional flaw as occurred in instruction 10, considered together with the identical verdict form, "combined to improperly emphasize to the jury that unanimous agreement was required not to impose the death penalty.” 970 F.2d at 625. The Mak court relied on Mills v. Maryland, 486 U.S. 367, 383, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988), which held that where the underlying statute does not require unanimity, the defendant’s due process rights are violated by providing the jury instructions that could reasonably be interpreted by its members to preclude consideration of a mitigating factor unless the factor was unanimously found to exist.
Penalty phase instruction 10 read in pertinent part:
You must answer one question. All twelve of you must agree before you answer a question "yes” or "no”. When all of you have agreed, fill in the answer to the question in the verdict form to express your decision. If all twelve of you are unable to unanimously agree, fill in the answer to the question in the appropriate place on the verdict form. . . .
(Italics mine.) Clerk’s Papers, at 553.
The penalty phase verdict form indicated:
Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?
ANSWER:
[_] "Yes” (In which case the defendant shall be sentenced to death)
*241[_] "No” (In which case the defendant shall be sentenced to life imprisonment without possibility of parole)
[_] "Unable to Unanimously Agree” (In which case the defendant shall be sentenced to life imprisonment without possibility of parole)
Clerk’s Papers, at 554.
Instruction 10 is misleading, or at the very least confusing, because it suggests the jury must be unanimous before reaching a verdict. The law is to the contrary. RCW 10.95.030(1) establishes a presumptive sentence of life without the possibility of parole which can be overcome only by a unanimous jury determination that there are not sufficient mitigating circumstances to warrant leniency. See RCW 10.95.030(1); RCW 10.95.060(4). Unanimity is not required to reach a verdict; if the jurors do not unanimously agree, the death penalty cannot be imposed, and the defendant’s sentence will be life without the possibility of parole.
The instructional error contained in instruction 10, together with the prosecutor’s misstatement of the law in closing, create the possibility that a juror might have been confused. See Mak v. Blodgett, supra at 625. (The verdict is undermined if the instructions create the possibility that even one juror was confused, let alone misled.) (citing Kubat v. Thieret, 867 F.2d 351, 371 (7th Cir.), cert. denied, 493 U.S. 874 (1989))- To the extent that is true, the reliability of the verdict is undermined, and Brett should be resentenced.
IV
Erroneous Admission of Evidence At The Penalty Phase Scope of Evidence Concerning Prior Convictions: Admissibility
Brett argues the trial court erred in allowing cross examination of Sandra Youngen,6 concerning her knowledge of facts underlying Brett’s conviction for assault and kidnapping.
*242Youngen testified she met Brett when he transferred from Echo Glen to Maple Lane and that he was not a management problem while at the latter facility. The prosecutor cross-examined Youngen as follows:
Q: Were you aware or did you know at the time that Mr. Brett was at Maple Lane that he had been previously convicted of assaulting a staff member at Echo Glen?
A: Yes, I was aware of that.
Q: Were you aware of the facts and circumstances of the particular offense?
A: Yes. You’re talking about when — in the escape from Echo Glen?
Q: That’s correct. Where he had plead [sic] guilty to Kidnapping in the First Degree, Assault in the Second Degree, and Escape in the First Degree for an incident that occurred March of 1985.
A: Yes, I was aware of that.
Q: And were you aware of the fact that he had snuck up on a staff counselor from behind, placed a tightly wound towel around her mouth and then moved the towel to her throat and strangled her with the towel? Were you aware of that? mr. foister: I’m going to object to that question, Your Honor.
She’s indicated she was familiar with the circumstances at Echo Glen.
mr. curtís: The jury’s not.
the court: It’s overruled, Counsel. It’s cross examination. I think it’s appropriate. Go ahead.
Q: (by mr. curtís) Were you aware of those facts?
A: I don’t recall. I’m sure at the time I was because we do share that type of information but I don’t specifically recall that the — the exact incidents that happened. I know there was an assault on a staff member in an escape attempt and that she was severely injured.
Q: And that she was bound with electrical cord prior to Mr. Brett escaping?
A: I do recall something about her being bound, yes.
Q: So in expressing your opinion to this jury that you were surprised that Mr. Brett was involved in the murder of a person, were you also incorporating into your thinking that prior incident which you had knowledge of?
A: I was. I was asked by counsel my reaction, and my initial reaction was I was very shocked when I heard the news.
Q: Even though you knew Mr. Brett has a history of violence in the juvenile system?
(Italics mine.) Report of Proceedings vol. 16, at 28-29.
*243Brett maintains the trial court erred in permitting the State to introduce before the jury evidence about the facts and circumstances attending his prior convictions. The majority disagrees on the ground State v. Bartholomew, 101 Wn.2d 631, 642-43, 683 P.2d 1079 (1984) (Bartholomew II) permits the prosecutor to "introduce evidence to rebut matters raised in mitigation by the defendant subject to the balancing test set forth in ER 403”. Designated majority, at 189 (citing Bartholomew II, 101 Wn.2d at 642-43; State v. Lord, 117 Wn.2d 829, 891, 822 P.2d 177 (1991), cert. denied, 113 S. Ct. 164 (1992)).
The majority’s suggestion that all evidence is admissible on cross examination for the purpose of rebuttal is unwarranted. This court expressly held that the admissibility of prior convictions under RCW 10.95.070 does not give the State an absolute license to expose the jury to the facts and circumstances attending those convictions. See Bartholomew II, 101 Wn.2d at 642-43. Cf. Lord, 117 Wn.2d at 889-90. Cross examination may not be conducted indiscriminately. ("We do not intend . . . that the prosecution be permitted to produce any evidence it cares to so long as it points to some element of rebuttal no matter how slight or incidental.”), Bartholomew II, 101 Wn.2d at 643 (quoting State v. Bartholomew, 98 Wn.2d 173, 198, 654 P.2d 1170 (1982) (Bartholomew I), State’s cert. granted and remanded, 463 U.S. 1203, defendant’s cert. denied, 463 U.S. 1212 (1983)).
In deciding whether to admit the statements at issue, the trial court is required to apply a balancing test similar, but not identical, to that contemplated by ER 403. As I noted in Lord, under ER 405, once character evidence about the defendant has been introduced, the presumption is that rebuttal evidence is admissible. Lord, 117 Wn.2d at 890. The opposite presumption applies under the Bartholomew test: "Only if the rebuttal value of the evidence outweighs the prejudicial effect should the evidence be admitted.” Lord, 117 Wn.2d at 928 (Utter, J., dissenting) (quoting Bartholomew II, 101 Wn.2d at 643) (quoting Bartholomew I, 98 Wn.2d at 198).
*244The State’s introduction of the facts and circumstances surrounding Brett’s assault was unwarranted given the presumption against admissibility established in Bartholomew II. Not only was the reference prejudicial, it was gratuitously so, because the State could have impeached Youngen’s statements by simply referring to the conviction resulting from this assault, a conviction already before the jury.
To summarize, the disproportionality of Brett’s sentence of death alone warrants the reversal of his sentence. In addition to its disproportionality, his sentence should also be reversed because the trial court’s failure to grant Brett a continuance to obtain an expert’s evaluation of whether he suffers from fetal alcohol syndrome compromised his capacity to adequately develop and present mitigating evidence; the scope of the evidence admitted to rebut his mitigation witnesses exceeded its permissible scope; and the instructional error suggesting unanimity was required before the jury could reach a final verdict was confusing and therefore casts doubt on its decision to impose the penalty of death.
Smith and Johnson, JJ., concur with Utter, J.
Reconsideration denied June 9 and August 17, 1995.
The North Carolina Supreme Court has stated that numerical disparity is not always dispositive where some additional heinous fact is involved. See, e.g., State v. Greene, 324 N.C. 1, 23, 376 S.E.2d 430 (1989) (finding the death penalty not disproportionate where the defendant committed a brutal parricide), cert. granted and judgment vacated on other grounds, 494 U.S. 1022 (1990).
Bartholomew’s sentence was vacated on direct appeal. State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984). The State was ordered to present the sentencing issue to the second jury, State v. Bartholomew, 104 Wn.2d 844, 710 P.2d 196 (1985), which declined to impose the penalty of death. Accordingly, Bartholomew received a life sentence without the possibility of parole.
Harris’s sentence was recently reversed by a federal court on numerous grounds, including lack of proportionality. Harris v. Blodgett, 853 F. Supp. 1239 (W.D. Wash. 1994).
The confusion the instruction may have engendered should be considered in conjunction with the prosecutor’s misstatement of the law during his closing argument. In closing, the prosecutor suggested the Defendant bore the burden of proving there were sufficient mitigating circumstances to warrant leniency:
Mr. Dane references life without parole, but the question is not whether life without parole is good enough. The question is whether having in mind the crime, you’re convinced beyond a reasonable doubt there’s sufficient mitigating circumstances.
Report of Proceedings vol. 18, at 127. There was no objection.
Brett also challenges the evidence introduced during the cross examinations of mitigation witnesses Jeffrey Johnson and Dr. Owens. However, defense counsel did not object to the admissibility of their statements. Their failure to do so may provide additional grounds to find ineffective assistance of counsel.