State v. Clark

Ireland, J.

(dissenting) — The majority correctly addresses the guilt phase issues, but errs in its treatment of a key issue from the penalty phase of the trial. Specifically, the trial court did not err in admitting explanatory evidence regarding Richard Clark’s conviction for unlawful imprisonment. I would affirm the Snohomish County Superior Court judgment and sentence.

The majority here concludes the trial court erred in allowing admission, over Clark’s objection, of facts beyond the certified copy of the judgment and sentence in his 1988 conviction for unlawful imprisonment. Specifically, in the State’s case-in-chief, an Everett police officer testified the victim of Clark’s 1988 crime was a four-year-old neighbor girl, known to Clark. The majority concludes this evidence was inadmissible in the penalty phase of the trial under our holdings in State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982) (Bartholomew I), vacated, 463 U.S. 1203, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1983), aff’d on remand, 101 Wn.2d 631, 683 P.2d 1079 (1984) (Bartholomew II). The majority is mistaken.

The starting place for any analysis of this issue is the death penalty statute itself. RCW 10.95.060 requires the jury that convicted a defendant of aggravated murder in the first degree to determine if leniency is appropriate. The State is obliged to prove the existence of aggravating factors under RCW 10.95.020. Then, the jury must answer the following statutory 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?

RCW 10.95.060(4). As originally enacted, RCW 10.95.060(3) *785authorized the admission of a broad array of evidence related to the statutory question:

The court shall admit any relevant evidence which it deems to have probative value regardless of its admissibility under the rules of evidence, including hearsay evidence and evidence of the defendant’s previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity. The defendant shall be accorded a fair opportunity to rebut or offer any hearsay evidence.

Moreover, RCW 10.95.070 articulated a series of relevant factors the jury could consider in deciding whether leniency was merited. Among the factors was the following:

Whether the defendant has or does not have a significant history, either as a juvenile or an adult, of prior criminal activity!.]

RCW 10.95.070(1).

In Bartholomew I and II, we evidenced a concern about the breadth of RCW 10.95.060(3), holding it unconstitutional insofar as it had the potential to allow the introduction of evidence inadmissible under the Rules of Evidence, and it allowed nonconviction data to be considered as part of a defendant’s criminal history. Bartholomew II, 101 Wn.2d at 641-44. In Bartholomew II, we expressly clarified the proper treatment of the statutory provisions under chapter 10.95 RCW. The liberal authority of RCW 10.95.060(3) to receive “any relevant evidence” and RCW 10.95.070 to consider “relevant factors” is confined to mitigating evidence. Bartholomew II at 642. The State can present any evidence during the penalty phase relating to the statutory aggravating factors of RCW 10.95.020, provided such evidence was admissible in the guilt phase. Id. at 643. With respect to the “relevant factors” of RCW 10.95.070, the State’s ability to present evidence is narrower than with respect to RCW 10.95.020 statutory aggravating factors.

Specifically, evidence of nonstatutory aggravating factors must be limited to defendant’s criminal record, evidence that would have been admissible at the guilt phase, and evidence to rebut matters raised in mitigation by the defendant.

Bartholomew II, 101 Wn.2d at 642.

*786Plainly, our concern with respect to evidence admissible as “relevant factors” under RCW 10.95.070 related to the difference between convictions and all other matters in a person’s criminal history. Under Bartholomew I and II, evidence of criminal activity for which the defendant had not been charged and charges not resulting in a defendant’s conviction would be inadmissible. However, conviction-related information would be admissible under Bartholomew I and II.

The majority here attempts to confine the State’s proof of the defendant’s conviction-related history under RCW 10.95.070 to that which is found in the certified copy of the judgment and sentence—nothing more, nothing less. That has never been the law in the state of Washington.

As early as State v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992), we held explanatory evidence regarding a criminal conviction may be utilized. In fact, in Lord, we held a California juvenile “adjudication” was admissible even though it was not technically a conviction. Moreover, in Lord, the uncharged assault on the defendant’s victim in the course of an unlawful imprisonment was admissible to impeach a witness’s testimony. In State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995), we held the admission of a certified copy of a judgment and sentence which indicated the defendant served an exceptional sentence was admissible. And, in State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996), we held the defendant’s prior criminal history could be proved by admission of a certified copy of the information charging the crime. Thus, under Pirtle, the record of criminal history is not confined to a judgment and sentence, but may include explanatory information regarding the crime. The information in Pirtle referenced not only the general charge of assault, but also noted the defendant’s assault conviction *787was accomplished by the use of a “ ‘weapon, namely, a glass, by hitting Chris Mabrey in the face with the glass causing severe lacerations to his face.’ ” Pirtle, 127 Wn.2d at 670 (quoting State’s Ex. 191). We noted the information was admissible because it

may have more probative value as the defendant’s criminal history when there are alternative means of committing the same crime, because it shows what means were actually used by the defendant. Assault, the crime at issue here, can be committed in a number of ways. The information here did little more than to inform the jury that this assault resulted in substantial bodily harm and involved the use of a deadly weapon.
. . . [The information] simply stated the particular elements of the crime which was the basis for the conviction.

Pirtle, 127 Wn.2d at 670-71. Most recently, in State v. Stenson, 132 Wn.2d 668, 744-46, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998), we held juvenile and adult convictions that were inadmissible in other criminal cases pursuant to the Sentencing Reform Act of 1981, RCW 9.94A.360(2), were relevant and admissible in a capital case because

[the use of the convictions] is consistent with the purpose to guide and channel the jury’s discretion because, along with evidence of mitigating circumstances, it provides the jury a broader understanding of the defendant’s background and character.

Id. at 745 (citing State v. Brett, 126 Wn.2d 136, 184, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996)).

In effect, our case law has indicated that prior criminal history, specifically convictions, could be admitted in the State’s case-in-chief during the penalty phase of a capital case. The criminal history could be proved in a variety of ways. Certainly, in Pirtle, we made it plain that where the charge conveyed little of the underlying facts involving the defendant’s criminal history, other, more factually significant data could be conveyed to the jury regarding the *788defendant’s prior criminal history, provided it was accurate and related only to a conviction, as opposed to an uncharged or unproven criminal act.

In the present case, we do not need to address the State’s argument that Bartholomew I and II should be overruled. Under our case law, it is clear that limited conviction-related evidence could be presented in the State’s case-in-chief during the penalty phase of a capital case for purposes of RCW 10.95.070. Criminal history can be proved in a variety of ways and information regarding the prior convictions, if truthful, is relevant for the jury in its awful responsibility. The evidence presented by the State in its case-in-chief here, regarding Clark’s 1988 unlawful imprisonment conviction, was appropriate. The evidence was accurate insofar as the conviction involved a four-year-old girl who was a neighbor of Clark’s and known to him. The defense has not suggested this evidence was inaccurate in any respect.

Consequently, under Bartholomew I and II and Pirtle, this court should hold the trial court did not err in allowing this evidence, which explained the bare conviction for unlawful imprisonment to a panel of laypersons. However, the State’s ability to present information relating to a defendant’s conviction as part of his or her criminal history is not unlimited. The trial court should retain complete discretion in deciding whether the evidence is relevant to the jury’s determination. The State’s evidence may provide additional background information to the jury about a defendant’s conviction when a judgment and sentence conveys nothing of the nature of the defendant’s actual crime.

For the reasons set forth above, the trial court should be affirmed with respect to the admission of explanatory evidence regarding Clark’s conviction for unlawful imprisonment in the penalty phase of the trial. Consequently, I would affirm Clark’s conviction and the jury verdict in the special sentencing proceeding.

Bridge, J., and Guy, J. Pro Tern., concur with Ireland, J.