(dissenting) — I would reverse Gary Michael Benn's death sentence because it is disproportionate. I also *697disagree with several other portions of the majority opinion which, though they do not change the outcome of this case, may unjustly cause others to receive the death penalty.
I
Proportionality
The majority neither follows our statutoiy mandate nor adheres to the purposes underlying proportionality review. It deviates from the governing statute by failing to develop a pool containing all cases similar to Benn's. Finally, it ignores our previous case law. A proportionality review of Benn's sentence which is more consistent with our statutory mandate requires a finding that Benn's sentence is disproportionate.
A. The Purposes of Proportionality Review.
Proportionality review developed in response to the United States Supreme Court's opinion in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), which effectively invalidated states' death penalty statutes as violative of the Eighth and Fourteenth Amendments. One of the problems perceived by the Court was the random application of the death penalty. Justice Stewart noted the arbitrary way in which the death penalty was imposed: "These death sentences are cruel and unusual in the same way that being struck by hghtning is cruel and unusual." 408 U.S. at 309 (Stewart, J., concurring).
Four years later, in Gregg v. Georgia, 428 U.S. 153, 203, 49 L. Ed. 2d 859, 96 S. Ct. 2909, 2939 (1976), the United States Supreme Court approved Georgia's revised death penalty statute, which included a provision for proportionality review by the Supreme Court of Georgia. Although the United States Supreme Court in Pulley v. Harris, 465 U.S. 37, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984) has held that proportionality review is unnecessary for a constitutionally valid death penalty, our statutorily mandated duty to perform proportionality review under RCW 10.95.130(2) has in no way been diminished.
*698Our death penalty statute requires this court to engage in proportionality review by determining:
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 . . ..
RCW 10.95.130(2). The first sentence is identical to the Georgia statute approved by the United States Supreme Court. See Ga. Code Ann. § 17-10-35(c)(3) (1990). Therefore, in State v. Harris, 106 Wn.2d 784, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987), we adopted Georgia's test for proportionality review. The Georgia Supreme Court will not affirm a death sentence "unless in similar cases throughout the state the death penalty has been imposed generally and not 'wantonly and freakishly imposed,'.. .". (Italics mine.) Moore v. State, 233 Ga. 861, 863-64, 213 S.E.2d 829, 832 (1975), quoted in Harris, 106 Wn.2d at 798.
Without such review, the death penalty, like hghtning, will strike some, but not others, in a way that defies rational explanation. The severity of the death penalty, its irrevocability, and our statutory mandate require us to assess carefully whether the death penalty has been imposed arbitrarily. We cannot, under the statute, simply defer to a jury's sentencing determination.
Failure to adhere to our statutorily mandated duty to conduct proportionality review would also violate due process. Where defendants have been denied their liberty interests established by state law, the United States Supreme Court has found a denial of due process. See, e.g., Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987) (finding that Montana parole-release statute created a liberty interest entitled to protection under the due process clause); Hicks v. Oklahoma, 447 U.S. 343, 65 L. Ed. 2d 175, 100 S. Ct. 2227 (1980) (holding that defendant *699was denied due process where he did not receive the jury sentence to which he was entitled under state law).
B. Salient Factors of Benn's Case.
The majority in this case follows State v. Lord, 117 Wn.2d 829, 910-11, 822 P.2d 177 (1991), cert. denied, 113 S. Ct. 164 (1992), by stating that our search for similar cases should focus on discerning "family resemblances" among cases. Although imaginative, this is simply a metaphor, not a sound method. The majority in this case correctly refers to the family resemblance approach as impressionistic. Majority, at 680. A better approach would be for us to focus initially on a few salient factors in this case in developing a pool of similar cases. See State v. Jeffries, 105 Wn.2d 398, 436, 717 P.2d 722 (Utter, J., dissenting), cert. denied, 479 U.S. 922 (1986).
Multiple victims, which was the sole aggravating factor found by the jury, is probably one of the most important characteristics of this case. Also significant is the fact that the victims were adults, and there was no torture and the victims probably did not experience substantial conscious suffering prior to death. Benn's prior criminal record consists only of a few property crimes, such as theft and larceny. In mitigation, there was Benn's previous good character, the love of his family, and the loss they would experience if Benn were sentenced to death. I will also follow the majority's approach by largely excluding those cases where a defendant had a mental defect or disturbance, or was youthful. Majority, at 691. In addition, I will exclude cases where defendants pleaded guilty, even though the majority cites no authority in the statute or case law for excluding them. Even excluding all of those cases, it is readily apparent that Benn's sentence is disproportionate.
C. Creating a Pool of Similar Cases.
Although the majority lists many multiple murder cases reported to this court since 1981, it fails to create a pool of all similar cases. First, the pool it does assemble contains cases which should not have been included. Second, without explanation, it fails to include many post-1981 cases that are similar to Benn's. Finally, it fails to consider cases reported *700in Washington Reports or Washington Appellate Reports since January 1, 1965, as required by statute.
First, the majority inappropriately includes several cases in its pool of seven similar cases. For example, Clark Hazen (No. 39)11 should not have been included in the majority's pool. Majority, at 692. Hazen committed suicide in prison before we could review his conviction or sentence. Therefore, there are serious questions about the reliability of Hazen's death sentence. In addition, Hazen's murders were much more brutal, and there were more aggravating circumstances found — multiple victims, concealment, rape, and robbery. Finally, including Hazen, who was only 18 at the time of his murders, in the pool of similar cases creates a glaring inconsistency. The majority refuses to include cases like that of Herbert Rice (No. 70) and Sean Stevenson (No. 50) because of their youth. It only includes Hazen's case, where the death penalty was imposed. Therefore, Hazen's case should not be included in the pool of similar cases.
Including Jeffries (No. 15) and Rupe (No. 7, No. 31) is also questionable, in light of my criticisms about the way proportionality review was conducted in those cases. See In re Jeffries, 114 Wn.2d 485, 505-06, 789 P.2d 731 (1990) (Utter, J., concurring in part, dissenting in part). To validate a death penalty in this case because it was imposed in those cases would simply perpetuate this court's earlier errors. Although I believe Jeffries and Rupe should be excluded for these reasons, I will include these two cases in my pool of similar cases.
I believe the majority correctly includes the other four cases, McKinley (No. 105), Runion (No. 99), Strandy (No. 37), and Thompson (No. 53), in its pool of similar cases. In all four of those cases, the defendants received sentences of life without parole.
However, the majority fails to include 15 other cases that have arisen since 1981 that are similar to Benn's. The fol*701lowing 15 cases match many of the salient features of Benn's case. In all 15 the defendants received life without parole as a sentence. Several of the murders were much more brutal, involving substantial conscious suffering before death, making the defendants more deserving than Benn of the death penalty. See State v. Rupe, 108 Wn.2d 734, 787, 743 P.2d 210 (1987) (Pearson, C.J., dissenting) (noting that almost all cases where defendants were sentenced to death involved substantial conscious suffering prior to death), cert. denied, 486 U.S. 1061 (1988).
Stephen Carey (No. 10) murdered his estranged wife and 18-month-old child by hghting their trailer on fire. See State v. Carey, 42 Wn. App. 840, 714 P.2d 708, review denied, 109 Wn.2d 1003 (1986). The jury found arson as an aggravating factor. His wife suffered third degree bums over 100 percent of her body and lived for approximately 18 hours after the fire. Carey had no prior record. The State did not seek the death penalty.
Pompeyo Guloy (No. 5) was a codefendant of Jimmy Ramil (No. 4), Constantine Baruso (No. 112), and Fortunato Dictado (No. 22). The State did not seek the death penalty in the cases of any of these defendants. Their victims were rival union officials. The only aggravating circumstance was multiple victims in a single event. The death penalty was not sought, thus no mitigating factors are listed in the report. There were no aspects of torture or hostage taking. Both victims were adult males, age 29, one died instantly and one was shot three or four times and lived for about 12 hours. Guloy had no known prior record. Ramil and Dictado had prior criminal records; Baruso had prior federal felonies. These defendants received life without parole.
David Simmons (No. 107), age 42, and Henry Dailey, Jr. (No. 108), age 22, murdered a couple. Gary Crabtree was shot in the head. His wife, Laurie Crabtree, was strangled with her husband's belt. The jury found three aggravating factors in each of these cases: multiple victims as part of a common scheme or plan, murders committed in furtherance of robbery, and committed to conceal the identity of the *702person committing the crime. Simmons had an extensive criminal record, including convictions for first degree robbery and theft. Dailey had convictions for first degree robbery and second degree burglary. The State did not seek the death penalty. Both defendants received life without parole.
William Kincaid (No. 16) murdered his wife and sister-in-law with a shotgun after a marital breakup. The only aggravating circumstance was multiple murders. No prior criminal record is listed in the report. The State did not seek the death penalty, and Kincaid received a sentence of life without parole.
Minviluz Macas (No. 101) set fire to her house, killing her 85-year-old husband and two of their children, ages 9 and 11. The jury found multiple murders and arson as aggravating factors. She had no prior record. The State did not seek the death penalty, and she received life without parole.
Frederick Peerson (No. 86) murdered two persons who had sold marijuana to him. He held one victim hostage. Peerson tied the victim to a chair with electrical cords and a leather belt, poked sharp objects into his ears, and struck him on the head with a large crescent wrench. The jury found two aggravating circumstances, multiple victims and robbery. Mitigation evidence was offered that Peerson suffered brain damage as a result of a car accident. The report also indicates Peerson suffered from posttraumatic depression and an antisocial personality. His record included a second degree burglary conviction, and attempted murder. The State sought the death penalty, but Peerson received a sentence of life without parole.
Kenneth Peterson (No. 42) murdered a husband, age 30, and wife, age 24. After murdering the husband, Peterson forced the wife to drive to a graveyard, where he shot her twice. Multiple victims was the only aggravating circumstance. In mitigation, Peterson's diminished mental capacity and his artistic skill were offered. Peterson had no prior criminal record. The State sought the death penalty, but the jury was unable to agree. He received life without parole.
*703George Russell (No. 120) was 33 years old when he was convicted of two counts of aggravated first degree murder and one count of first degree murder. Burglary was the aggravating circumstance. The defendant was convicted for three serial murders of young women. Russell, like Benn, had previous convictions for property crimes. The State did not seek the death penalty, and Russell received life without parole.
At age 25, Lawrence Sullens (No. 69) murdered a couple in their home. He also beat and shot their 11-year-old daughter. She survived, even though he left her in the house and fit it on fire. The jury convicted Sullens of two counts of aggravated first degree murder, one count of attempted first degree murder, and one count of first degree arson. It found concealment and multiple victims as aggravating circumstances. The report indicates Sullens had no prior criminal record. The State did not seek the death penalty. Sullens received life without parole.
Thomas Baja (No. 59),12 at the age of 43, shot his ex-wife and her male companion in the head after entering her home. The jury found one aggravating factor — multiple victims. The report lists no prior criminal record. The only mitigating evidence fisted was that the defendant suffered from posttraumatic stress disorder. Baja received fife without parole.
*704William Pawlyk (No. 116) murdered his ex-girlfriend and her new boyfriend. The aggravating circumstance was multiple victims. Both victims were stabbed in excess of 100 times. Pawlyk had no prior record. The State did not seek the death penalty. Pawlyk pleaded insanity, which the jury rejected. He received a sentence of life without parole.
Adding these 15 cases to the 6 cases from the majority's pool makes a total of 21 similar cases since 1981. Only 2 out of 21 of the defendants in those cases received the death penalty. This is a frequency of less than 10 percent.
But even this pool of 21 similar cases does not represent the totality of cases we must consider for purposes of proportionality review. Yet another flaw in the majority's development of a pool of similar cases is its failure to mention any of the cases decided between 1965 and 1981. Our statute mandating proportionality review requires us to consider not only post-1981 cases where reports have been filed with us, but also those "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". ROW 10.95.130(2)(b).
Six cases involving the murders of more than one person between 1965 and 1981 where the judge or jury considered imposition of the death penalty are similar enough to Benn's that we must use them for purposes of proportionality review.
In one of those six cases, the defendant was sentenced to death. State v. Quinlivan, 81 Wn.2d 124, 499 P.2d 1268, 72 A.L.R.3d 835 (1972) (defendant convicted of one count of first degree murder and one count of second degree murder and sentenced to death).13 In the other five cases, the jury *705did not sentence the defendants to death. State v. Grisby, 97 Wn.2d 493, 647 P.2d 6 (1982) (death penalty sought, but not imposed, on two defendants convicted of five counts of aggravated murder), cert. denied sub nom. Frazier v. Washington, 459 U.S. 1211 (1983); State v. Carothers, 9 Wn. App. 691, 514 P.2d 170 (1973) (defendant robbed and killed elderly couple), aff'd, 84 Wn.2d 256, 525 P.2d 731 (1974); State v. Haga, 81 Wn.2d 704, 504 P.2d 787 (1972) (defendant convicted of two counts of first degree murder for slaying of wife and 7-month-old daughter); State v. Baker, 78 Wn.2d 327, 474 P.2d 254 (1970) (defendant shot estranged wife and mother-in-law).
Admittedly, the cases between 1965 and 1981 are less usefid in many respects for conducting proportionality review. In making comparisons, we do not have the benefit of the more detailed information contained in the questionnaires trial courts have completed since 1981 as required by RCW 10.95.120. In addition, defendants in those cases were sentenced under earlier versions of Washington's death penalty statute which have subsequently been declared unconstitutional. None of those sentenced to death during that period has been executed. Nonetheless, it is striking that even under these earlier versions of our death penalty statute, defendants in cases similar to Benn's were sentenced to death in only one of six similar cases, or about 17 percent.
The following chart summarizes the results in cases similar to Benn's:
Similar Death Penalty Cases Imposed Death Penalty Percentages
1981-present 21 2 Less than 10 percent
1965-1981 6 1 About 17 percent
Total 27 3 About 11 percent
*706Therefore, in cases similar to Benn's, the death penalty was imposed in only 3 out of 27 cases, or about 11 percent of the time.
D. Determining Whether the Death Penalty Is Proportionate.
After developing a pool of similar cases, the majority also fails to apply the correct test for determining whether Benn's sentence is proportionate. RCW 10.95.130(2)(b) requires us to determine whether the death penalty is "excessive or disproportionate to the penalty imposed in similar cases". In the past, we have followed Georgia's test for proportionality, which is whether the death penalty has "been imposed 'generally' in similar cases." State v. Harris, 106 Wn.2d 784, 798, 725 P.2d 975 (1986) (citing Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975)), cert. denied, 480 U.S. 940 (1987). The word "generally" means significantly more than 50 percent. State v. Jeffries, 105 Wn.2d 398, 437, 717 P.2d 722 (Utter, J., dissenting), cert. denied, 479 U.S. 922 (1986). Here, the death penalty has only been imposed in 3 out of 27 cases, or about 11 percent of the time, so it has not been generally imposed.
The majority fails to address the issue of whether the death penalty has been generally applied in similar cases. It simply inquires whether there is an "arbitrary frequency of life without parole sentences over death sentences" among cases similar to Benn's. Majority, at 692. It cites no authority for this approach, and gives no reasons for departing from the standards we and other states with similar statutes have adopted.
The majority's version of proportionality review is inconsistent with that employed in several states, such as North Carolina, Pennsylvania, and Georgia, which have statutes mandating proportionality review virtually identical to Washington's. In these other states, the death penalty is deemed proportionate if it is applied in the vast majority of similar cases.
For example, North Carolina's statute mandating proportionality review of death penalty cases contains the same language as our statute, namely whether "the sentence of death is excessive or disproportionate to the penalty imposed *707in similar cases, considering both the crime and the defendant." N.C. Gen. Stat. § 15A-2000(d)(2). A review of North Carolina's death penalty cases reveals that the death penalty is deemed disproportionate where it has been applied less than half the time in similar cases. See, e.g., State v. Cummings, 323 N.C. 181, 198, 372 S.E.2d 541, 552 (1988) (finding death penalty proportionate where death penalty imposed in four of five other cases in which a defendant had been 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, 523 (1988) (finding death penalty disproportionate where death penalty imposed in only 4 out of 51 robbeiy-murder cases); State v. Stokes, 319 N.C. 1, 22, 352 S.E.2d 653, 665 n.14 (1987) (finding death penalty disproportionate, because codefendant given 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, 732 (1986) (finding death penalty disproportionate for defendant found guilty of shooting one individual and attempting to shoot another, where in the pool of similar cases death was the penalty in 23 cases and life sentences in 76 cases), overruled on other grounds in State v. Vandiver, 321 N.C. 750, 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 death penalty imposed in 5 out of 28 robbery-murder cases in the pool of similar cases); State v. Bondurant, 309 N.C. 674, 693, 309 S.E.2d 170, 182 (1983) (finding death penalty disproportionate where applied only in 13 out of 78 similar cases).14
North Carolina's experience with proportionality review also belies the majority's claim that a more exacting form of *708proportionality review would, in effect, substitute this court's judgment for that of the jury. North Carolina has not overturned an inordinate number of death sentences through proportionality review. In a recent case, the court stated that it had affirmed the guilt and sentencing phases in 38 capital cases. It had vacated the death sentence as disproportionate in 6. cases. Cummings, at 198. This is less than one in seven, or about 14 percent. Presumably, if we adopted a similar methodology, we would not frequently substitute our judgment for that of the jury, provided of course that statewide patterns of action are taken into account before the death penalty is sought.
Pennsylvania also has a statute mandating proportionality review which is virtually identical to Washington's. 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (Purdon Supp. 1992). The Pennsylvania Supreme Court looks closely at the relative frequency of death sentences in the pool of similar cases it develops, approving death sentences as proportionate where the vast majority of defendants in similar cases also received the death penalty. See, e.g., Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986) (finding death penalty proportionate where it was imposed in eight out of nine similar cases), cert. denied, 480 U.S. 951 (1987); Commonwealth v. Whitney, 511 Pa. 232, 249-50, 512 A.2d 1152, 1161-62 (1986) (finding death penalty proportionate where it was imposed in the "overwhelming majority" of similar cases); Commonwealth v. Pirela, 510 Pa. 43, 507 A.2d 23 (1986) (finding death penalty proportionate where it was imposed in six out of eight similar cases); Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985) (finding death penalty proportionate where sentence imposed in seven out of seven similar cases).
Finally, we should follow the example set by the Georgia Supreme Court, which in the past has provided us with guidance in conducting proportionality review. Harris, 106 Wn.2d at 798. In D. Baldus, G. Woodworth, & C. Pulaski, Equal Justice and the Death Penalty: A Legal and Empirical Analysis 198-228 (1990), the authors describe a study of 68 of the 69 death penalty cases the Georgia Supreme Court *709reviewed pursuant to its post-Furman proportionality legislation. The study indicates that when the Georgia Supreme Court finds a sentence proportionate, the sentences in most, if not all, of the similar cases, were death sentences. The authors note that
in almost 90 percent of the sixty-eight cases that we analyzed, every case identified in the court's appendix as similar to the death case under review resulted in a death sentence. For only five of the sixty-eight cases was the death-sentencing rate among the appendix cases less than .75, and for only one case was it less than .50.
(Footnote omitted.) Equal Justice, at 203. Therefore, once the Georgia Supreme Court creates a pool of similar cases, it does not simply rely on one or two isolated precedents to justify its conclusion that the death penalty is proportionate. Instead, it finds the death penalty proportionate when the punishment in the vast majority of cases in the proportionality pools was death. In other words, it finds the death penalty proportionate only where it has generally been imposed.
I cannot, following our statutory mandate, ease the requirements of comparative proportionality review to the point where it becomes an empty ritual. To fail to perform our statutorily mandated review also raises serious due process problems. Here the death penalty has only been imposed 3 times in 27 similar cases. It has not generally been imposed. Therefore, I would vacate Benn's sentence because it is disproportionate.
II
Other Errors
The majority also makes several legal errors which could have major significance for future capital cases. Although these other matters do not affect the outcome of this case, I write separately in the hope that the court will rectify these errors in the future.
A. Standard of Review.
The United States Supreme Court has repeatedly emphasized that the death penalty is fundamentally different from all other punishments because of its severity and finality. Murray v. Giarratano, 492 U.S. 1, 9, 106 L. Ed. 2d 1, 109 S. *710Ct. 2765 (1989); Beck v. Alabama, 447 U.S. 625, 637, 65 L. Ed. 2d 392, 100 S. Ct. 2382, 2389-90 (1980). The finality of the death penalty requires "a greater degree of reliability when [it is] imposed." Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978).
In setting forth the standard of review in capital cases, the majority magnifies errors committed by the majority in State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991), cert. denied, 113 S. Ct. 164 (1992). See majority, at 648. First, it states that assignments of error in the guilt phase of a capital case are reviewed in the same manner as in noncapital cases. As I noted in my dissent in State v. Lord, supra at 925 n.39, the United States Supreme Court has employed heightened scrutiny to the guilt phase of a capital case. See Beck v. Alabama, 447 U.S. at 638. The reason for heightened scrutiny is that irregularities during the guilt phase can unfairly expose defendants to the ultimate punishment, the death penalty. Therefore, there is a corresponding need for reliability during the guilt phase of a capital case.
In addition, the majority undermines the heightened scrutiny of the sentencing phase of a capital case. It says that "while heightened scrutiny means a closer, more careful review of the record, it does not entail a raised standard of review." Majority, at 648 (citing Lord, 117 Wn.2d at 888). I cannot understand this argument. As an appellate court, it is our duly to review thoroughly the record in all cases that come before us, regardless of whether they are capital or noncapital. Significantly, the United States Supreme Court has never indicated that heightened scrutiny simply means delving deeper into the details of the record.
Heightened scrutiny means something more. The federal constitution requires that we also determine that the procedures used meet the standard of increased reliability in capital cases. The United States Supreme Court has routinely treated capital defendants differently from noncapital defendants in its attempt to insure reliability of sentencing *711determinations. See, e.g., Beck v. Alabama, supra at 637-38 (holding that constitution required that jury be able to consider lesser included offenses in capital case, but indicating this requirement need not be extended to noncapital cases); Lockett v. Ohio, 438 U.S. 586, 604-05, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (holding that capital defendants must be allowed to present all mitigating evidence, while acknowledging legislation may limit evidence in a noncapital case). As Justice Harlan wrote:
So far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases the law is especially sensitive to demands for that procedural fairness ... I do not concede that whatever process is "due" an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case. The distinction is by no means novel, . . . nor is it negligible, being literally that between life and death.
Reid v. Covert, 354 U.S. 1, 77, 1 L. Ed. 2d 1148, 77 S. Ct. 1222 (1957). In effect, the Court employs a higher standard of review to insure the reliability of a death penalty determination. We must follow the United States Supreme Court by applying a higher standard of review to the guilt and penalty phases of a capital case.
B. Failure To Object at Trial.
The majority suggests that a capital defendant may be precluded from raising an issue for the first time on appeal. Majority, at 673-74. It cites noncapital cases for the proposition that claims of instructional error that are not constitutional may not be raised for the first time on appeal. See State v. Fowler, 114 Wn.2d 59, 785 P.2d 808 (1990); State v. Scott, 110 Wn.2d 682, 689, 757 P.2d 492 (1988). The majority fails to discuss that we allow capital defendants to challenge jury instructions on appeal even when they made no objection to the instructions at trial because of the severity of a death sentence. State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986).
The failure of the majority to follow federal constitutional principles in this and other cases may require reversal. It *712also is likely to prolong the length and add to the expense of capital cases.
Smith and Johnson, JJ., concur with Utter, J.
Reconsideration denied March 19, 1993.
The numbers referenced here are the sequential numbers assigned to the reports of the trial judges as they are received by the Clerk of the Supreme Court.
Although the majority does not expressly indicate why Baja and Pawlyk are not part of its pool of similar cases, it suggests that the difference between these cases and Benn's is that these were "crimes of passion". Majority, at 681, 686. This is not an adequate basis for distinguishing these cases.
To characterize these defendants' crimes as ones of passion contradicts, at least in part, their convictions for aggravated first degree murder. In order to be convicted of aggravated first degree murder, RCW 10.95.020 requires that an individual commit first degree murder as defined by RCW 9A.32.030(1)(a). Under RCW 9A.32.030(1)(a) one is guilty of first degree murder if one acts "[w]ith a premeditated intent to cause the death of another person". RCW 9A.32-.030(1)(a). Even though strong emotions may have motivated the defendants in these cases, the jury still found that they both had developed a conscious plan to take another's life. I reject the notion that domestic violence that culminates in aggravated first degree murder is somehow less serious.
There are a few murder cases where defendants were sentenced to death that I do not include in the pool of similar cases because they are distinguishable. State v. Canaday, 79 Wn.2d 647, 488 P.2d 1064 (1971) (defendant convicted of two counts of first degree murder for tying up two women, raping them, and then strangling them), vacated in part, 408 U.S. 940 (1972); State v. Smith, 74 Wn.2d 744, 446 P.2d 571 (two brutal murders in the course of several robberies), vacated in part, 408 U.S. 934 (1972); State v. Hawkins, 70 Wn.2d 697, 425 P.2d 390 (1967) *705(defendant convicted of murdering two children), cert. denied, 390 U.S. 912 (1968). In addition, two codefendants were convicted of three murders during robberies and sentenced to death, but irregularities in jury selection resulted in reversal of their sentences. State v. Aiken, 75 Wn.2d 421, 452 P.2d 232 (1969), rev’d, 403 U.S. 946 (1971).
The North Carolina Supreme Court has stated that numerical disparity is not always dispositive of a case where some additional heinous fact is involved. See, e.g., State v. Greene, 324 N.C. 1, 23, 376 S.E.2d 430, 445 (1989) (finding death penalty proportionate where defendant committed brutal patricide), vacated on other grounds, 494 U.S. 1022 (1990).