Barbara Hendrickson walked next door at 4:20 on the afternoon of April 14, 1982, to take her friend Renae Wicklund's temperature and blood pressure and to help Renae's eight-year-old daughter, Shannah, make Jello. Renae was home sick in bed; ordinarily she worked for herself as a financial aid consultant to schools. When two hours passed without a word from his wife, Donald Hendrickson went over to the Wicklund house in Clearview, in Snohomish County, Washington, and found all three of them dead.
The man convicted of killing them had been there before. In December 1974 Charles Rodman Campbell broke into the same house, held a knife to the throat of Shannah, then a baby, and forced Renae to submit to him; afterward she ran to the Hendricksons' for help. Both women testified against him, and in 1976 he was convicted of first-degree assault and sodomy. By early 1982 he was an inmate at the Everett Work Release Facility, and Renae, who had never moved, had not been told he was out. A jury chosen in Spokane and seated in Everett convicted him on November 26, 1982, of three counts of aggravated first-degree murder, finding among other aggravating factors that he was serving a prison term at the time and that Renae and Barbara were killed because they had been witnesses against him. The jury found too little in mitigation to spare him, and he was sentenced to death.
The file holds seven opinions. The Washington Supreme Court's 1984 decision affirms the conviction on twelve issues and sets out the evidence at length. Its 1989 decision rejects, among other claims, his argument that a statute letting him choose lethal injection over hanging forced him, against his religion, to take part in his own death. The Ninth Circuit's 1991 orders deal with his demand to dismiss his lawyers and argue his own appeal, which he was allowed to do. Its December 1992 opinion, printed here in both its original and its amended form, affirms the dismissal of his third federal petition, and a January 1993 decision upholds the refusal to let him videotape the hanging of another condemned man, Westley Allan Dodd, as evidence that hanging was cruel. Campbell was hanged at the Washington State Penitentiary in Walla Walla on May 27, 1994, strapped to a board because he would not stand.
Everything the opinions say about the crimes is the courts' summary of the trial record, and the medical detail in the 1984 opinion is the medical examiner's evidence as the court restated it. The Ninth Circuit's two December 1992 texts are the same decision as first filed and as amended, and the amended text revises and adds passages; both are printed because both stand in the reporters under separate citations. The January 1993 decision carries a dissent by Judge Reinhardt, who would have allowed the videotape. The account of the 1974 attack, the work release and Renae Wicklund's not being told is drawn from the courts' opinions and from the reporting cited in the source record.
Four witnesses are reduced to initials: a woman who testified that Campbell had made advances toward her and pulled at her clothes, his girlfriend, and a neighborhood family, two boys and their father, who told the jury about a car they had seen parked in the woods that afternoon. The murdered women and child, Donald Hendrickson, the neighbors who testified as adults, police and correctional officers, and the experts are named as the court named them. The text is the reporters' typeset text, in the public domain, with the scan's line-break hyphens left in.
No. 49244-1.
En Banc.
November 6, 1984.
The State of Washington, Respondent, v. Charles R. Campbell, Appellant.
Charles Rodman Campbell, pro se, and Mark Mestel and Anthony Savage, for appellant.
Seth Dawson, Prosecuting Attorney, Larry E. McKee-man, Chief Criminal Deputy, and S. Aaron Fine, Deputy, for respondent.
[OPINION BY Dimmick, J. type=majority]
Dimmick, J.
Defendant Charles Rodman Campbell appeals his conviction of three counts of first degree murder and his death sentence. Twelve issues are presented:
1. Whether the trial court violated defendant's right to a speedy trial (CrR 3.3), by granting defense counsel's request for a trial continuance over defendant's objection.
2. Whether it was error for the prosecutor in his opening statement to refer to defendant's attempted rape of witness D.K. which was not proved at trial.
3. Whether the prosecution's failure to disclose to the defense the exculpatory evidence of witness Frase's inability to identify defendant's jacket was corrected by the trial judge's instructions to the jury.
4. Whether the trial court erred in allowing the Chambers to testify at trial when their nonverbatim statements, taken by the police, were destroyed.
5. Whether the trial court denied defendant's right to confrontation when it prohibited cross examination of Jerold Ethington as to his refusal to give hair samples or try on an article of clothing.
6. Whether the trial court abused its discretion in admitting into evidence items seized from defendant at the time he was taken into custody.
7. Whether the search and seizure of defendant's car and the items contained therein violated the Fourth Amendment and Const, art. 1, § 7.
8. Whether the trial court abused its discretion in admitting into evidence the glass containing defendant's fingerprint.
9. Whether the special sentencing proceeding, RCW 10.95.040, violates equal protection, violates separation of powers, or is unconstitutionally vague because it grants the prosecutor discretion to request the death penalty.
10. Whether the special sentencing proceeding provides insufficient statutory standards to guide the jury and whether an instruction to the jury as to the eight mitigating factors contained in the statute constituted additional aggravating circumstances or an impermissible judicial comment on the evidence.
11. Whether defendant's death sentence withstands the three statutory appellate review questions mandated under RCW 10.95.130(2).
12. Whether the death penalty is cruel punishment in violation of Const, art. 1, § 14.
We affirm, finding no error in defendant's trial or sentencing.
On April 14, 1982, Renae Wicklund, her 8-year-old daughter Shannah Wicklund, and a neighbor friend, Barbara Hendrickson, were found dead in the Wicklund home in Clearview, Washington, by Hendrickson's husband, Donald. Renae was home sick in bed on April 14, 1982. Normally, she was self-employed as a school financial aid consultant. Barbara had gone over to the Wicklund residence at 4:20 p.m. to take Renae's temperature, blood pressure, and help Shannah make Jello. Donald went over at 6:30 p.m., concerned he had not heard from his wife for over 2 hours. Evidence produced at trial indicated Renae had been the first victim. She was found nude on her bedroom floor. Shannah, the second victim, had been attacked in the dining room, then dragged into her mother's bedroom and killed. Barbara, the third victim, had also been attacked in the dining room and killed in the hallway.
All three had been beaten and assaulted prior to death. The right earlobes of Renae and Barbara had been torn, indicating trauma to the perforations where pierced earrings had been in place. The autopsy revealed Renae had received extensive blunt trauma beating on her head, back, and upper chest area. Her jaw and nose were broken and she had been strangled. Her neck had a 7-inch incision across the front, which severed both carotid arteries. She had bled to death from the neck cut. After her death, a blunt object was used to tear a 1-inch cut into the upper end of the vaginal wall. Shannah had also been strangled and had a 7% -inch cut across her upper neck, inflicted by extending her backward and elevating the chin. She had suffered a massive hemorrhage such that a blood sample was difficult to obtain. Barbara had a 7-inch upper neck cut and also had died by a massive hemorrhage.
Campbell had prior contacts with the victims. In 1974, he assaulted and sodomized Renae in the same residence in which she was killed in 1982. Her daughter Shannah was restrained by the defendant who held a knife to her throat and threatened to harm her if Renae did not submit. Afterward, Renae ran to her neighbor's home (Barbara Hendrickson's) for help. In 1976, Campbell was convicted of the 1974 first degree assault and crime of sodomy on Renae. Both Renae and Barbara had testified at trial against Campbell. At the time of the murders, defendant was an inmate at Everett Work Release Facility.
A few days after the homicides, Campbell was charged by information with three counts of aggravated first degree murder. He was appointed counsel, and at arraignment the trial judge entered a not guilty plea. In May 1982, the State filed notice for a special sentencing proceeding to determine whether the death penalty should be imposed. Trial was set for June 29, 1982.
On June 21, 1982, defense counsel, over Campbell's objection, made a motion for continuance, based upon the vast amount of discovery to be completed and to afford defendant a fair trial with effective assistance of counsel. The State opposed this motion. However, the trial court granted the continuance until September 7, 1982, believing the "administration of justice and the interests of the defendant will best be served." On August 5, 1982, counsel was permitted to withdraw because of conflict with defendant over the continuance. New counsel was appointed. On September 27, 1982, Judge Kershner denied defendant's motion to dismiss, concluding CrR 3.3 created a procedural, not a fundamental right, which may be waived over defendant's objection. Subsequently, trial was again continued with defendant's acceptance. Jury selection began on October 25, 1982, in Spokane. The site was selected by Judge Britt, pursuant to a defense motion for change of venue. After the jury was impaneled, trial began in Everett on November 8, 1982.
The State's case was overwhelmingly strong, relying upon numerous witnesses and abundant evidence linking Campbell to the crimes. Campbell's girl friend, J.D., testified Campbell visited her on the morning of April 14, 1982. He had been drinking and drank a six-pack of beer at her home. On April 15, J.D. testified she noticed her butcher knife, with 6-inch blade, was missing. J.D. also stated Campbell felt a resentment toward Renae and had driven by her home while on work release.
At about 1 p.m. on April 14, 1982, Campbell visited a friend, D.K., at her home. At a pretrial motion in limine, defense counsel attempted to preclude the State from eliciting facts that Campbell had attempted to rape D.K. The court denied the motion, finding such testimony permissible under ER 404(b). The court stated, "Such testimony, if believed by the jury, could constitute evidence of identity, motive, intent [or] mental state of the defendant." The court, however, cautioned "the prosecutor against over-developing [D.K.'s] anticipated testimony in opening statement." During the opening statement the prosecutor initially admonished the jury not to consider anything he said in the opening statement to be evidence. Rather, his purpose was to "simply outline the case." Subsequently, the prosecutor stated Campbell "attacked" D.K., "attempted to rape her, forced her to the floor, [and] tried to take her clothes off."
At trial D.K. testified Campbell had made two passes at her and then asked if she "wanted to get it on." She rejected all his advances and testified Campbell "never hurt me or anything", although she was upset and crying. She had asked Campbell if he wanted a back rub to "feel better." Once on the floor, he "tugged at her clothes," but "backed off" when told to by D.K. Following this testimony, defense counsel's motion for mistrial was denied.
T.F., a neighbor boy, testified that while riding home from school on the bus at 3 p.m. on April 14, 1982, he saw a red car parked in an inlet in the woods, with a man 6 feet 1 inch to 6 feet 2 inches, with sandy-brown wavy hair, nearby. T.F.'s brother, M.F., testified he saw the car parked in the woods around 3:15 to 3:20 p.m. T.F.'s dad, J.F., testified that at 3:40 that afternoon he saw the same car backed into the woods. The type of car described by the witnesses was very similar to the one owned by Campbell.
Eleven-year-old Josette Frase, next door neighbor of the Wicklunds, testified at trial that at about 3:30 p.m. on April 14, 1982, she saw a man wiggle around in the bushes by her house and then walk down a gravel road. She testified he was tall, had dark brown curly hair, and was wearing a blue sports jacket with a yellow stripe running across the middle. She identified Campbell in court and at a lineup, as the man she saw. A blue jacket was taken from Campbell's room the next day, pursuant to a search warrant.
During trial, the prosecution admitted that Frase had been asked in October 1982 to view the blue jacket seized from Campbell's room, but she was unable to identify it. The State admitted it was an "oversight" not to disclose this exculpatory evidence to the defense. Defense counsel moved for a mistrial. This motion was denied, but Judge Britt ordered that Frase be recalled to testify that she could not identify the jacket.
When recalled by the defense, Frase testified she was unable to identify the jacket. On cross examination, the prosecution attempted to establish that the jacket taken from Campbell's room might have been the same jacket. The defense renewed the motion for mistrial. This was denied by the trial judge who instructed the jury to disregard the cross examination by the prosecutor. The judge further informed the jury that " [i]t has been stipulated by the State that Exhibit 151 is not the jacket worn by the man Josette Frase saw on April 14, 1982."
On April 15, 1982, Lester Chambers, neighbor of the Wicklunds, phoned the Snohomish County Sheriff's Department. He reported that at 5 p.m. the day before he and his wife had seen a tall guy, with brown "afghan" hair, dark chin beard, and carrying a bedroll walk like he was intoxicated down the road and then disappear up into the bushes. Around 5 p.m., neighbor boys also testified they saw a tall man walk down Waverly Drive carrying a bundle over his shoulder. Mr. Chambers used high powered binoculars to observe this man. Both Mr. and Mrs. Chambers at trial testified Campbell resembled the person they saw.
Mr. Chambers initially spoke to Detective Belinc who noted Chambers described the suspect as a white male, in his forties with a full beard. Belinc had an officer dispatched to personally talk with the Chambers. Deputy Angelí talked with the Chambers on April 15, 1982, and took notes of the interview, which he delivered to Deputy Pszonka at the crime scene. At trial Deputy Pszonka denied receiving the notes. The original notes were never found. On October 22, 1982, Angelí wrote out a second report setting out his best recollection of the conversation with Mr. Chambers. That report described the stranger as "a transient appearing person." However, during direct examination Angelí testified Mr. Chambers described the individual as 6 feet or taller, with curly hair, and transient looking. The defense moved for a mistrial. This motion was denied. However, the court instructed the jury to disregard all of Angell's testimony regarding the description of the individual given him by the Chambers except that the individual was transient looking. Later the judge instructed the jury:
The State has not produced the notes taken by Deputy Angelí during his April 15th, 1982 interview of Mr. and Mrs. Chambers. If, as a matter of reasonable probability, it appears naturally in the interest of the State to produce those notes and if the State fails to satisfactorily explain why it has not produced such notes, you may infer that the notes would have been unfavorable to the State, if you believe such inference is warranted under all the circumstances of the case.
Jerold Ethington was a fellow resident with Campbell at Everett Work Release. At about 6 p.m. on April 14, 1982, Campbell and Ethington left the facility in Campbell's car. Campbell was carrying a bundle of clothes. After buying and sharing a quart of beer, they went to the Lowell Boat Launch on the Snohomish River. There, Campbell asked Ethington to walk back to the paved road. Ten to fifteen minutes later they left the area. Ethington later reported this incident to Snohomish County Detective Bart. The two went to the area on April 16, where Bart recovered a bracelet and an earring. Diving units later retrieved evidence from that area: a piece of pottery, two earrings, two necklaces, and a brass holder. These items were linked to the Wicklund home and the victims. In addition, a pair of jeans and a shirt were recovered from the river.
Ethington's involvement became an issue in defendant's case when, in October 1982, defense counsel requested production of a hair sample from Ethington, to compare with hair found on the victims. This order was initially granted. Subsequently, the defense moved to require Ethington to try on the jeans and shirt retrieved from the river. Judge Britt later, at the request of Ethington's appointed attorney, vacated the order authorizing hair samples and denied the request to order Ethington to try on the retrieved clothes. He believed he had neither statutory nor constitutional power to rule otherwise and the facts implicating Ethington did not rise to probable cause.
At trial, the defense sought to cross-examine Ethington and ask whether he was willing to give a hair sample or try on the clothes. The court denied this request because the asking of such a question with full knowledge of the answer would confuse the real issues of the case, mislead the jury, and place in their minds an inappropriate suspicion. However, in final argument, the judge did not limit the defense's reference to the hair samples and the possibility that the clothes fit Ethington.
At about 8 p.m. on April 14, 1982, the day of the murders, Correctional Officer Margaret Ashby was informed by a resident at Everett Work Release that Campbell was drunk. Being unable to awaken Campbell, Ashby called Correctional Officer Gary Whitinger for assistance. Around 10 o'clock that evening, Whitinger attempted to get a urine sample from Campbell to test for alcohol or drugs. Campbell refused and became extremely disruptive. Whitinger decided then to take Campbell into custody and suspend his work release status. Everett police officers were called for assistance. Although the State attempted to locate these officers, they were never identified. Prior to the transport to Monroe, one officer patted down Campbell for weapons in Whitinger's presence. Items were retrieved from Campbell and handed directly to Whitinger. These items included the following: receipt for tires, pair of earrings, dollar bill, guitar pick, cigarettes, and mace container. The earrings were later identified by witness Lou Pardo, a close friend of the Wicklunds, as belonging to Renae Wicklund.
Whitinger testified that the items seized from Campbell were given to Ashby who was instructed to put them in an envelope, mark the envelope, and place it on Supervisor Tom Cornish's desk. Ashby did not recall ever receiving these items. The next morning Cornish found a white envelope on his desk containing the items. He then sealed and locked these items into his desk drawer, later turning them over to Snohomish County Police. Cornish testified that the correctional officer on duty had access to his desk during the night, but the residents did not have access.
On the morning of April 15, 1982, Supervisor Tom Cornish of Everett Work Release was informed by another correctional officer that Jerold Ethington's raincoat had been left in Campbell's car parked on the street. Cornish went to the car to retrieve the raincoat and look for evidence of alcohol consumption, for which Campbell had been suspended. He found and removed the raincoat and a beer bottle and cans. He also noticed an earring, which he left behind.
At about 11:30 a.m., Sergeant Joseph Belinc came to Everett Work Release looking for Campbell. Cornish pointed out Campbell's car to Belinc. Belinc peered into Campbell's car from the street and observed an earring inside. An affidavit was then prepared by Belinc from which a search warrant was issued.
At about 1 p.m., Snohomish County Police served a search warrant for evidence to be found in Campbell's car and room, and for items previously seized from him by Cornish. Cornish gave the officers the beer cans and bottle and the items seized from Campbell the night before. The car was subsequently impounded and the earring removed. At trial, a business associate of Renae Wicklund testified with particularity that the earring recovered from Campbell's car had been given by him to Shannah Wicklund as a birthday present.
Detective Oberg processed the Wicklund home for latent fingerprints on April 14 and 15, 1982. He gathered a glass from the kitchen, dusted it, and noticed fingerprints on the glass that appeared to be in a reddish-purplish substance. He then packaged the glass to prevent contamination. He subsequently took the packaged glass to the Snohomish County Sheriff's Evidence Control Room. Oberg, on April 19, fingerprinted Campbell. On April 22, Oberg formally logged the glass onto the property log. The packaged glass and other evidence was double wrapped, placed in a nailed wooden box, and sent to the Federal Bureau of Investigation. Special Agent Richard Reem received the evidence and located human blood on the glass. The glass was then sent to Special Agent Steven Kasarsky for fingerprint examination. Kasarsky testified he did not see any visibly latent prints, nor any reddish-purplish impressions, and it appeared the glass had not been previously processed for prints. He then dusted for prints, found one, and testified at trial with "scientific certainty" the print matched Campbell's.
Campbell did not testify at trial but did assist with cross examination. The defense on direct called several of the state witnesses to refute their earlier testimony. Additionally, the defense called its legal investigator, Sylvia Matthews and a forensic scientist, Raymond Davis.
On November 26, 1982, the jury convicted Campbell on all three counts. The jury found four aggravating factors: (1) Defendant was serving a term of imprisonment at the time of the act resulting in death, RCW 10.95.020(2); (2) the victims (Barbara and Renae) were former witnesses in an adjudicated proceeding against the defendant and the murder was related to the exercise of their official duties performed at the proceeding, RCW 10.95.020(6)(b); (3) defendant committed the murder of Barbara and Shannah to protect or conceal his identity, RCW 10.95.020(7); and (4) the murder was committed in the course of, or in furtherance of, or in immediate flight from the crime of burglary in the first degree, RCW 10.95.020(9)(c). A special sentencing proceeding was held whereby the jury was convinced beyond a reasonable doubt that there were not sufficient mitigating circumstances to merit leniency. Judge Britt sentenced Campbell to death. Mandatory review of the death sentence was then brought before this court. RCW 10.95.100.
I
Speedy Trial
Defendant argues that the trial court erred in granting defense counsel's motion for a continuance of trial from June 29 to September 7, 1982, over defendant's objection. He contends CrR 3.3, which requires a defendant not released from jail be brought to trial not later than 60 days after arraignment, is a fundamental, as opposed to a procedural, right. Moreover, he maintains he has a constitutional right to control his own defense, which cannot be deferred to counsel. Additionally, he believes he was a victim of inadequate representation, in that his previous counsels' request for a continuance was based solely on their inability and unwillingness to effectively and aggressively represent him. Defendant asserts that he was substantially prejudiced by the continuance, because on June 29, the State had much less evidence against him (e.g., FBI reports not completed until August).
The State maintains that a defendant's right to a speedy trial may be waived by counsel, over defendant's objection, if, as here, counsel is acting effectively for defendant's best interest in requesting more time for trial preparation. The State also argues that CrR 3.3(h)(2) allows the court to "continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of his or her defense", without the consent of either the defendant or the prosecutor. If there is a conflict of constitutional rights, the State believes defendant's right to effective counsel outweighs his right to a speedy trial. Otherwise, the State contends defense counsel could obtain dismissal of the charges against a client by neglecting to prepare a case. The State argues the trial court was not required to advise Campbell he had the right to be represented by ineffective counsel or proceed pro se. Lastly, the State contends the trial court properly exercised its discretion in granting a continuance, and defendant was not prejudiced by the determination.
On appeal, a trial court's grant or denial of a motion for continuance will not be disturbed absent a showing of manifest abuse of discretion. State v. Miles, 77 Wn.2d 593, 597-98, 464 P.2d 723 (1970).
Here Judge Britt properly exercised his discretion under CrR 3.3(h)(2). State v. Laureano, 101 Wn.2d 745, 755, 682 P.2d 889 (1984). Moreover, he made a proper record of reasons for failure to comply with CrR 3.3 time limits. State v. Williams, 87 Wn.2d 916, 920, 557 P.2d 1311 (1976). He found Campbell's counsel could neither effectively represent him nor ensure that he received his constitutional right to a fair trial within 60 days of arraignment, "through no fault of their own but because of the complexity and length of this case." He recognized that if he denied the continuance "the argument might be made upon review that Mr. Campbell was thus denied the effective assistance of counsel." While attorneys for the State moved to go to trial by June 29, they conceded discovery would not be completed by that date. Campbell himself agreed to the final trial continuance. The fact that trial began within 6 months of arraignment, albeit with more evidence, did not prejudice Campbell's defense. Trial within 60 days is not a constitutional mandate. Accord, State v. White, 94 Wn.2d 498, 501, 617 P.2d 998 (1980); Barker v. Wingo, 407 U.S. 514, 523, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972) ("no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months"). Counsel was properly granted the right to waive trial in 60 days, over defendant's objection, to ensure effective representation and a fair trial.
II
Attempted Rape of D.K.
Defendant alleges prosecutorial misconduct by the State in referring in its opening statement to Campbell's attempted rape of D.K., which supposedly occurred several hours before the triple homicides. Defendant maintains the State knew it could not substantiate its version of the events and flagrantly abused the court's admonishment not to overdevelop the testimony. The State contends the statement was made in good faith, based upon an earlier police report, and was "arguably" consistent with D.K.'s testimony. Alternatively, the State argues if misconduct is found, any error is harmless because of defendant's overwhelming guilt.
A prosecutor's opening statement should be confined to a brief statement of the issues of the case, an outline of the anticipated material evidence, and reasonable inferences to be drawn therefrom. State v. Kroll, 87 Wn.2d 829, 834-35, 558 P.2d 173 (1976); 1 American Bar Ass'n, Standards for Criminal Justice, Std. 3-5.5 (2d ed. 1980). Testimony may be anticipated so long as counsel has a good faith belief such testimony will be produced at trial. State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1011 (1983). The trial court has wide discretion in determining the good faith of the prosecutor. State v. Lyskoski, 47 Wn.2d 102, 107, 287 P.2d 114 (1955). See Annot., 16 A.L.R.4th 810, § 7(a), (b) (1982). The burden of showing bad faith is upon the defendant. State v. Parker, 74 Wn.2d 269, 274-75, 444 P.2d 796 (1968), overruled on other grounds in State v. Gosby, 85 Wn.2d 758, 767, 539 P.2d 680 (1975).
We find the prosecutor's opening statement in totality to have been brief, and rather mild considering the gruesomeness of the murders. We believe the State possessed a good faith belief D.K. had been the subject of an attempted rape. We believe this evidence was especially relevant and probative because rape in the first degree was charged in the State's information. RCW 10.95.020(9)(b). FBI reports indicated the presence of sperm in Renae Wicklund's vagina. However, Judge Britt did not remove this aggravating factor from the jury's consideration until nearly the very end of the trial. He did so because the testimony did not establish beyond a reasonable doubt a rape occurred in close proximity to Renae's death. We view the reference to the attempted rape as an unfortunately worded conclusory statement. However, whether there was an attempted rape was a jury question. The prosecutor was simply outlining his version of the case. Moreover the jury was admonished by the prosecutor and trial judge that counsel's remarks were not evidence. State v. Grisby, supra at 497. These admonishments, along with the actual testimony of D.K., diluted the impact of the prosecutor's statement and in fact worked to the State's disadvantage. We hold the opening statement was made in good faith.
Ill
Nondisclosure of Unidentified Jacket
Defendant asserts the fact Josette Frase could not identify Campbell's jacket as being the one worn by the intruder in the bushes, in a pretrial view, was exculpatory evidence which the prosecution had a constitutional duty to disclose. Failure to disclose this evidence allegedly undermined Campbell's defense and was not cured by the State's stipulation. The State argues sanction for delayed discovery lies within the discretion of the trial court, and any prejudice was cured by the stipulation that Campbell's jacket was not worn by the intruder.
A prosecutor has a constitutional duty to disclose exculpatory matter to the defense, when there has been a general request. United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976); State v. Vaster, 99 Wn.2d 44, 49, 659 P.2d 528 (1983).
[I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
(Footnote omitted.) Agurs, at 112-13. In Agurs, the prosecutor's failure to disclose the murder victim's criminal record was held not to deprive defendant of a fair trial.
The fact Frase could not identify Campbell's jacket in a pretrial view is exculpatory evidence, especially in light of the fact she was one of the State's principal eyewitnesses. However, this omitted evidence is not substantial enough to have created a reasonable doubt that did not otherwise exist. While the prosecution should have disclosed this fact, failure to do so did not rise to constitutional error. Moreover, the trial judge's statement to the jury cured any error created by the omission. The State stipulated that Campbell's jacket was not worn by the man Frase saw, and the judge read the statement to the jury.
IV
Missing Police Notes
Defendant asserts that his constitutional rights of confrontation and due process of law were violated by the court's allowing the Chambers to testify at trial, when notes of their original statements taken by Officer Angelí were destroyed. Defendant wanted to utilize the notes to cross-examine and impeach the Chambers with prior inconsistent statements. Defendant implies that the notes were not lost in good faith, and that they were of substantial materiality and would probably have affected the outcome of the trial or his death sentence.
The State believes the officer's summary of the Chambers' statements, even if found, would not have been admissible to impeach, because they were nonverbatim witness statements. Moreover, the State contends there is no constitutional duty to provide discovery of nonverbatim statements. The impeachment value of the notes was marginal, according to the State, as the identification testimony was vague and cumulative. The State maintains the loss of the notes was in good faith and understandable, considering the extensive investigation. Additionally, the State argues the overwhelming proof of defendant's identity, along with the "missing evidence" instruction, required a denial of his mistrial motion.
In State v. Vaster, supra, this court adopted a balancing test to be applied in those cases in which there has been an inadvertent or good faith loss or destruction of evidence. The first consideration is "whether there exists a reasonable possibility that the missing evidence would have affected the defendant's ability to present a defense." Burden of establishing "reasonable possibility" rests with the defendant. "Reasonableness" is determined in light of the particular circumstances of each case. Lost or destroyed evidence that does not rise to the level of establishing a reasonable possibility that it will exculpate a defendant will be deemed insufficiently material to constitute a due process violation. Next, the court must balance the consideration of "reasonableness" against the ability of the prosecution to have preserved the evidence, considering the procedures established for preserving evidence, the nature of the lost evidence, and the circumstances surrounding the loss. Vaster, at 52. In Vaster, the inadvertent destruction of a rape victim's vaginal fluid sample was held not to violate defendant's due process right to a fair trial when there was unusually detailed eyewitness identification and there was a low percentage of probability that the fluid sample could be exculpatory. Vaster, at 53. See State v. Gilcrist, 91 Wn.2d 603, 590 P.2d 809 (1979) (lost hair sample did not violate due process); State v. Canaday, 90 Wn.2d 808, 585 P.2d 1185 (1978) (destruction of used Breathalyzer ampuls did not violate due process); State v. Wright, 87 Wn.2d 783, 557 P.2d 1 (1976) (destruction of all direct evidence against defendant, found at murder scene, constituted a due process violation requiring dismissal of charges).
While the State is incorrect in its contention that non-verbatim witness statements are inadmissible to impeach (any form of inconsistent statement is admissible for the limited purpose of impeaching the witness, E. Cleary, McCormick on Evidence § 34, at 67 n.7 (2d ed. 1972)), their value at trial was marginal and did not affect the outcome. The explicit limitation of Officer Angelí's testimony and the "missing evidence" instruction significantly aided Campbell's defense. By not sustaining his burden of proving a reasonable possibility that the missing police notes affected his defense, no constitutional error is found.
V
Cross Examination of Ethington
Defendant argues he was unconstitutionally denied the right to confront witness Ethington about his failure to give hair samples and try on the clothing found in the Snoho-mish River. Defendant implies Ethington was also involved with the homicides. The State maintains Ethington was only tangentially connected with the crime through his knowledge of the evidence retrieved from the Snohomish River. While Ethington was vigorously cross-examined concerning his whereabouts on April 14, 1982, the State maintains any cross examination pertaining to hair samples/clothing demonstration would have no probative value and the trial court properly exercised its discretion in excluding it.
The scope of cross examination lies in the discretion of the trial court and will not be disturbed unless there is a manifest abuse of discretion. State v. Descoteaux, 94 Wn.2d 31, 39, 614 P.2d 179 (1980). Here, defense counsel was hoping to cross-examine Ethington and impute liability because he would not cooperate by giving hair samples and a clothing demonstration. Ethington, through counsel, believed this to be an unreasonable search and seizure and intrusion into his privacy. The record does not implicate Ethington in commission of the homicides, nor does it impute a motive to him. An inquiry into the reasons why Ethington did not volunteer a hair sample or clothing demonstration would have raised unwarranted speculation. Judge Britt's denial of that area of cross examination was proper.
VI
Items Seized From Campbell
Campbell, pro se, argues the trial court abused its discretion in admitting into evidence the items seized from his person on the night he was taken into custody and suspended from work release. He maintains that the chain of custody was not sufficiently established. Campbell also takes exception to the fact the officers who removed the items were never identified and hence not available for cross examination.
The State asserts that the court properly admitted the items into evidence and any uncertainty affects the weight of the evidence, not its admissibility. Moreover, the State maintains the evidence was sufficiently established without the searching officers' testimony.
Before a physical object connected with the commission of a crime may properly be admitted into evidence, it must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed. Brown v. General Motors Corp., 67 Wn.2d 278, 285, 407 P.2d 461 (1965); Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960). Factors to be considered "include the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of inter-meddlers tampering with it." Gallego, at 917. The proponent need not identify the evidence with absolute certainty and eliminate every possibility of alteration or substitution. See cases cited in 5 K. Tegland, Wash. Prac. § 90 (2d ed. 1982). Identity and condition of an exhibit are always subject to rebuttal. State v. Music, 79 Wn.2d 699, 713, 489 P.2d 159 (1971), vacated as to the death penalty, 408 U.S. 940 (1972). The jury is free to disregard evidence upon its finding that the article was not properly identified or there has been a change in its character. Gallego, at 917. However, minor discrepancies or uncertainty on the part of the witness will affect only the weight of evidence, not its admissibility. K. Tegland, § 90, at 203. The trial court is necessarily vested with a wide latitude of discretion in determining admissibility, which will not be disturbed absent clear abuse. Kiessling v. Northwest Greyhound Lines, Inc., 38 Wn.2d 289, 295, 229 P.2d 335 (1951).
The record indicates that the officers handling the evidence adequately preserved it and the chance of tampering is unlikely. The uncertainty of witness Ashby and the fact the police officers in question were never located affects the weight and not the admissibility of the items. Moreover, as Whitinger was present, witnessed the patdown of Campbell, and immediately retrieved the items, any testimony of the officers would have been cumulative. State v. Dickamore, 22 Wn. App. 851, 857, 592 P.2d 681 (1979). Hence the evidence was properly admitted.
Campbell's objection that he was foreclosed from cross-examining the officers is without merit as they were never called as witnesses. Additionally, he never exercised his right to compel their attendance nor in good faith attempted to locate them. See State v. Edwards, 68 Wn.2d 246, 412 P.2d 747 (1966).
VII
Search/Seizure of Campbell's Car
Campbell, pro se, asserts the warrantless search of his car by Everett Work Release Supervisor Tom Cornish was in violation of the Fourth Amendment and Const, art. 1, § 7. He contends work release had no control over his car, parked on a public street, and he had an expectation of privacy therein. Moreover, Campbell argues Cornish was acting as an agent of the State when he illegally searched Campbell's car, thereby tainting the second search pursuant to a warrant obtained by Sergeant Belinc. Hence, he argues that all evidence was illegally seized and should have been suppressed. The State counters that Cornish had the power to search Campbell's car, given probable cause to believe a fellow inmate's property and evidence of alcohol consumption would be in the car. Alternatively, the State argues if the first search was illegal Sergeant Belinc's actions were legal under the open view doctrine and validated the warrant.
Washington recognizes a warrantless search exception, when reasonable, to search a parolee or probationer and his home or effects. Hocker v. Woody, 95 Wn.2d 822, 826, 631 P.2d 372 (1981) (diminished expectation of privacy); State v. Coahran, 27 Wn. App. 664, 666-67, 620 P.2d 116 (1980) (search upon less than probable cause, given well founded suspicion). Such a "diminution of Fourth Amendment protection can only be justified 'to the extent actually necessitated by the legitimate demands of the operation of the parole process.'" State v. Simms, 10 Wn. App. 75, 86, 516 P.2d 1088 (1973). An inmate in a work release program is subject to similar if not more restrictive conditions. WAC 275-92. The warrantless search by Work Release Supervisor Cornish was reasonable to obtain Ethington's raincoat and, based upon probable cause, to search for evidence of alcohol. WAC 275-92-355(6). An inmate's expectation of privacy is necessarily lowered while in custody.
The observation through Campbell's car window by Sergeant Belinc squarely falls under the open view doctrine. State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981).
[W]hen a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used, that detection does not constitute a "search" within the meaning of the Fourth Amendment.
Seagull, at 901 (citing 1 W. LaFave, Search and Seizure § 2.2, at 240 (1978)). Here, Belinc peered into Campbell's car from the public street and saw jewelry, similar to that observed at the homicide scene. He also observed what appeared to be blood on the driver's side door handle. Such detection was therefore not an illegal search.
VIII
Admissibility of Fingerprinted Glass
Defendant objects to the trial court having allowed FBI Agent Kasarsky to testify that the print on a Wicklund kitchen glass, found at the murder scene, matched those of defendant when the chain of custody was not properly established. Defendant specifically questions the fact that Kasarsky, when first receiving the glass, detected no visible fingerprint powder, latent print, or reddish-purplish substance. The State argues that there was a complete showing of the chain of custody; there was no opportunity for any significant change in the condition of the glass; and the possibility of a fingerprint forgery affects the weight of evidence, not its admissibility.
The applicable law addressing admissibility of evidence connected with the commission of a crime was discussed supra in part 6. We find no clear abuse of discretion by the trial court. Preservation and custody of the glass were adequate, despite a 7-day delay in officially logging an entry into the book. The slight variations in the witnesses' testimony regarding the appearance of the glass did not affect its admissibility when proof of Campbell's print was found on the glass with scientific certainty.
IX
Prosecutorial Discretion
If a person is charged with aggravated first degree murder under RCW 10.95.020,
[T]he prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency.
RCW 10.95.040(1). Defendant argues this statute is unconstitutional on three grounds. First, he argues an equal protection violation because the statute allegedly vests the prosecutor with unfettered discretion to choose different punishments for similar acts. Second, defendant alleges the statute usurps the judicial sentencing function and is an unlawful delegation of legislative authority in violation of the separation of powers doctrine. Third, Campbell contends the statute is void for vagueness under the due process clause because it invites arbitrary ad hoc prosecutorial discretion to request the death penalty. See 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 (1984).
The State maintains there is no equal protection violation because imposition of death requires proof of an additional element (insufficient mitigating circumstances to merit leniency) that need not be proved if the crime is to be punished by life imprisonment. Similarly, the State maintains there is no separation of powers violation in that the prosecutor is empowered to seek the death penalty when the legislative criteria, as here, are met. Finally, the State contends the statutory standards are sufficiently clear to guard against arbitrary enforcement.
In State v. Rupe, 101 Wn.2d 664, 699, 683 P.2d 571 (1984) and State v. Dictado, 102 Wn.2d 277, 687 P.2d 172 (1984), we held the discretion given a prosecutor to seek the death penalty was constitutional. We reaffirm this position, finding no merit in defendant's arguments.
We dispose of defendant's three arguments under the following analysis: First, equal protection of the laws is denied when a prosecutor is permitted to seek varying degrees of punishment when proving identical criminal elements. State v. Zornes, 78 Wn.2d 9, 21, 475 P.2d 109 (1970). However, "no constitutional defect exists when the crimes which the prosecutor has discretion to charge have different elements." State v. Wanrow, 91 Wn.2d 301, 312, 588 P.2d 1320 (1978). Before the prosecutor may seek the death penalty, he must have "reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040(1). Similarly, the jury must be "convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency". RCW 10.95.060(4). Absent a unanimous finding, life imprisonment is imposed. RCW 10.95.080(2). There is no equal protection violation here, because a sentence of death requires consideration of an additional factor beyond that for a sentence for life imprisonment — namely, an absence of mitigating circumstances.
Second, "[t]he separation of powers principle requires that the delegation of legislative power to the executive be accomplished along with standards which guide and restrain the exercise of the delegated authority." State ex rel. Schillberg v. Cascade Dist. Court, 94 Wn.2d 772, 781, 621 P.2d 115 (1980). "The decision to prosecute must be based on the prosecutor's ability to meet the proof required by the statute." State v. Lee, 87 Wn.2d 932, 934, 558 P.2d 236 (1976). RCW 10.95.040 properly sets out a legislative standard to guide prosecutors. " [T]he grant of discretion to prosecutors does not result in a standardless death penalty statute." State v. Rupe, at 700.
Moreover, the prosecutor's discretion to seek the death penalty does not usurp the judicial function to sentence. See, e.g., RCW 10.95.160-.170; Honore v. State Bd. of Prison Terms & Paroles, 77 Wn.2d 697, 700, 466 P.2d 505 (1970). In a sense the prosecutor participates in the sentencing process by choosing to request a special sentencing proceeding. But the prosecutor can neither impose the sentence nor require that it be imposed. People ex rel. Carey v. Cousins, 77 Ill. 2d 531, 397 N.E.2d 809 (1979). In Dictado, we observed that the prosecutor's discretion in this regard is similar to his discretion in charging a crime: "The prosecutor does not determine the sentence; the prosecutor merely determines whether sufficient evidence exists to take the issue of mitigation to the jury." Dictado, at 298. The sentencing jury or the judge determines whether the statutory conditions to impose the death penalty are met. RCW 10.95.050(2), .060(4), .080. Moreover, automatic review by the Supreme Court again insures that sentencing remains a judicial function. RCW 10.95.100, .130.
Third, whether a statute is void for vagueness rests upon two considerations. On the one hand, the statute must provide fair notice of the conduct which is prohibited. "Second, it must contain ascertainable standards for adjudication, so that police, judges, and juries are not free to decide what is prohibited and what is not ..." Seattle v. Shepherd, 93 Wn.2d 861, 865, 613 P.2d 1158 (1980).
We believe the legislative standard provides guidance so that prosecutors may "exercise their discretion in a manner which reflects their judgment concerning the seriousness of the crime or insufficiency of the evidence." Rupe, at 700. Accordingly we uphold the constitutional validity of RCW 10.95.040(1).
X
Jury Discretion
Defendant maintains the special sentencing proceeding affords the jury no standards upon which to direct their deliberations. Moreover, defendant takes exception to jury instruction 7, which embodies RCW 10.95.070.
In deciding the question posed by RCW 10.95.060(4), the jury, or the court if a jury is waived, may consider any relevant factors, including but not limited to the following:
(1) Whether the defendant has or does not have a significant history, either as a juvenile or an adult, of prior criminal activity;
(2) Whether the murder was committed while the defendant was under the influence of extreme mental disturbance;
(3) Whether the victim consented to the act of murder;
(4) Whether the defendant was an accomplice to a murder committed by another person where the defendant's participation in the murder was relatively minor;
(5) Whether the defendant acted under duress or domination of another person;
(6) Whether, at the time of the murder, the capacity of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired as a result of mental disease or defect;
(7) Whether the age of the defendant at the time of the crime calls for leniency; and
(8) Whether there is a likelihood that the defendant will pose a danger to others in the future.
RCW 10.95.070. Defendant argues that by delineating eight possible mitigating factors, which the defendant has not raised, the court has in fact introduced prejudicial nonstatutory aggravating factors. Further, defendant argues that jury instruction 7 is in essence a judicial comment on the evidence contrary to Const. art. 4, § 16. The State counters that the statute provides sufficient guidance to the jury for sentencing.
We recently held that the trial court's reading of the relevant factors provided in RCW 10.95.070 "adequately guided the jury as to the nature and function of mitigating circumstances." State v. Bartholomew, 101 Wn.2d 631, 647, 683 P.2d 1079 (1984). See also Rupe, at 701, 709-10. As in Bartholomew, the trial court's recitation of the eight factors merely served as an illustration to the jury of the information it might consider in determining mitigating circumstances. Instruction 7 advised the jury that it "may consider any relevant factors" and that consideration was "not limited" to the eight enumerated factors. We see nothing in the instruction that imposed additional aggravating factors, or that represented an unconstitutional evidentiary comment by the judge. Here, the nonstatutory aggravating factors were limited to defendant's criminal record. Defendant had full opportunity to present any mitigating factors to the jury, following Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). Defendant presented none. The statutory standard for mitigation gives proper guidance to the jury and affords the defendant a basis for a sentence less than death. See Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (dictating "individualized consideration [is] a constitutional requirement in imposing the death sentence." Lockett, at 605).
XI
RCW 10.95.130 Appellate Review
In reviewing a defendant's death sentence, this court is required to determine:
(a) Whether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95-.060(4); and
(b) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant... and
(c) Whether the sentence of death was brought about through passion or prejudice.
RCW 10.95.130(2) (a-c).
First, we must determine whether there was sufficient evidence to justify the jury's affirmative determination of 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?"
RCW 10.95.060(4). During the guilt phase, Campbell introduced the mitigating factor of his alcohol addiction by personally cross-examining his girl friend, J.D. J.D. testified she sponsored Campbell, 4 or 5 times a week, on social nights out from the work release program. J.D. testified Campbell drank "almost all the time" and would buy at least a six-pack of beer per night. Campbell's defense offered no mitigating circumstances during the penalty phase. The mitigating factors delineated in RCW 10.95.070 do not appear applicable to Campbell's circumstances. Faced with the overwhelming evidence against Campbell during the guilt phase we too find it difficult to find sufficient mitigating circumstances to merit leniency. Thus we conclude there was sufficient evidence to justify the jury's affirmative finding.
Second, considering the crime and the defendant, we must determine whether capital punishment is excessive or disproportionate to the penalty imposed in similar cases.
"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)(b). Such a proportionality review is not required by the federal constitution in every case in which the death penalty is imposed. Pulley v. Harris, — U.S —, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984). Rather our proportionality review stems from the state statute. It does presume the death penalty is not per se unconstitutional. Rupe, at 697-98; Pulley, 79 L. Ed. 2d at 35-36. Hence our inquiry is to determine whether the death "penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime." Pulley, 79 L. Ed. 2d at 36.
While many other defendants have been charged with aggravated first degree murder, we find no other where four aggravating factors in the guilt phase were found to be present by the jury. A case which involves such a multitude of aggravating factors, we are convinced, would, with great frequency prompt a jury to impose the death penalty. Our review of the cases and questionnaires clearly indicates defendant's sentence was proportionate to the crime committed. Moreover, we are hard pressed to find killings more premeditated and revengeful than those committed by defendant. The sentence of death is neither excessive nor disproportionate to the penalty imposed. A more definitive proportionality review will await another day when this court will be confronted with a capital case with far fewer and less severe aggravating factors.
Third, no evidence was presented to support the proposition that defendant's sentence was brought about through passion or prejudice. The selection of a jury from Spokane significantly lessened the local fervor. In sum, we find no grounds to reverse defendant's death sentence under RCW 10.95.130.
XII
Cruel Punishment
Finally we are called upon to review the issue raised implicitly by defendant as to whether the death penalty is cruel punishment in violation of Const. art. 1, § 14. We first addressed this issue in State v. Smith, 74 Wn.2d 744, 446 P.2d 571 (1968), vacated in part, 408 U.S. 934 (1972). We held that imposition of the death penalty is not per se unconstitutional, since both the federal and state constitutions recognized capital punishment at the time of their adoption. Smith, at 777-78. We further addressed the issue of cruel punishment in State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981) (rejecting an argument that hanging was unconstitutionally cruel) and in State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984) (rejecting an argument that a choice between hanging and lethal injection was unconstitutionally cruel).
Similarly, the United States Supreme Court has concluded that a state-imposed death penalty per se does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 168-87, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). The Court has observed that the Eighth Amendment's prohibition against cruel punishment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 89, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958). The Court has drawn its standard of decency from "an assessment of contemporary values concerning the infliction of a challenged sanction.. .," looking "to objective indicia that reflect the public attitude toward a given sanction." Gregg, at 172-73. Additionally, the Court has examined the proportionality of punishment to determine compliance with the Eighth Amendment. See, e.g., Weems v. United States, 217 U.S. 349, 54 L. Ed. 793, 30 S. Ct. 544 (1910); Coker v. Georgia, 433 U.S. 584, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977); Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982). In the latter case, the Court reversed the death sentence for accessory felony murder on the grounds that it was unconstitutionally disproportionate. The Court found significance in the fact that out of 36 state and federal jurisdictions authorizing the death penalty, only 8 jurisdictions would have imposed the death penalty under the circumstances of Enmund. Enmund, at 789. But see Pulley v. Harris, supra, holding that the California death penalty statute was not invalid for failing to require a review of proportionality.
In a case involving legislative penalties imposed for recidivism, we asserted this court's role in reviewing such penalties under the state constitutional prohibition against cruel punishment. State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980). Proportionality of the sentence was central to our analysis of cruel punishment as it affected a life sentence. Fain, at 396-97. Proportionality in that context included "the punishment defendant would have received in other jurisdictions... and... the punishment meted out for other offenses in the same jurisdiction." Fain, at 397.
Following our analysis in Fain, and the United States Supreme Court's rationale in Gregg, Weems, et al, we then look to contemporary standards and proportionality. Experience in other states offers guidance. Our independent evaluation of all state statutes shows 38 states presently authorize the death penalty. See appendix. Except for California, where the death penalty was enacted through the initiative process, the legislatures of the states have enacted the death penalty. These legislative enactments primarily have been modifications of existing death penalty statutes to comply with federal constitutional standards. Gregg, at 179 n.23 (at least 35 states between 1972 and 1976 modified their capital punishment statutes to comply with Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972)). Additional modifications were required after the statutory schemes in North Carolina, Louisiana, and Ohio were struck down. Woodson v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976); Roberts v. Louisiana, 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001 (1976); Lockett v. Ohio, supra. We note our current statute, RCW 10.95, is far more protectively drafted than the majority of other state statutes, by its careful limitation of aggravating circumstances.
We are also mindful of the fact the clear majority of other state courts presented with a similar state constitutional challenge have ruled the death penalty is neither cruel nor unusual punishment. Only two state courts have held the death penalty to be cruel or unusual punishment under their state constitutions and those decisions were overturned by initiative or legislative action. See People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, 100 Cal. Rptr. 152 (1972); District Attorney v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980). In California, the people in November 1972, adopted a constitutional amendment, Cal. Const. art. 1, § 27, which overruled Anderson. People v. Frierson, 25 Cal. 3d 142, 184, 599 P.2d 587, 158 Cal. Rptr. 281 (1979). Cal. Const. art. 1, § 27 states in part:
The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.
In Massachusetts, the Legislature responded by subsequently reinstating the death penalty. Thus, in the majority of states the death penalty has received public acceptance. The defendant in this case would be subject to the death penalty in most other jurisdictions.
We turn now to examine the issues of proportionality and community standards in our own state. As noted above, RCW 10.95.130 dictates a consideration of proportionality as a part of appellate review. We thus compared the penalty imposed in this case with the penalty in similar Washington cases and found no disproportionate application.
The 1975 initiative authorizing a mandatory death penalty is reflective of current community standards. The voters of Washington approved that initiative by a 67.8 percent majority. Laws of 1975, 2d Ex. Sess., ch. 9 (codified at RCW 9A.32.045-.047) (repealed 1981). Subsequent legislation has responded to constitutional mandates to avoid arbitrary, standardless imposition of the death penalty. Comment, The Death Penalty in Washington: An Historical Perspective, 57 Wash. L. Rev. 525 n.4 (1982). See God-frey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980). The statute adopted by the Legislature in 1981 authorizes the death penalty under certain aggravating circumstances. RCW 10.95.
Clearly the mandate of the people of Washington, as expressed through the legislative and initiative processes, is to impose the death penalty. We, as Justices, are bound to uphold and enforce this law absent a constitutional prohibition. We must not superimpose personal morality nor utilize strained interpretations of the law to sidestep this difficult issue.
"Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures." Dennis v. United States, 341 U. S. 494, 525 (1951) (Frankfurter, J., concurring in affirmance of judgment).
(Footnote omitted.) Gregg, at 175. Accordingly we affirm the lower court judgment. We find no grounds for invalidating the death penalty as cruel punishment in violation of Const. art. 1, § 14.
Lastly, on the day of oral argument, one of the two court appointed attorneys, Mark Mestel, informed this court of Campbell's wish that he no longer represent him. At that time, the court instructed that oral argument by Mestel and co-counsel Anthony Savage continue. Subsequently, this court received a letter written by Campbell addressing his dissatisfaction with Mestel, but not Savage. A review of this letter reveals no new colorable grounds to have warranted dismissal of Mestel. Rather, we find these men provided Campbell with the effective assistance of counsel. A tape of oral argument was sent to defendant and he was given additional time to file a reply brief. No new issues worthy of discussion were raised.
Judgment and sentence affirmed.
Appendix Alabama Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Idaho Illinois Indiana Kentucky Louisiana Maryland Massachusetts Mississippi Missouri Montana Nebraska Nevada States With a Death Penalty Ala. Code §§ 13.A.-5-39 through -59 (1983) Ariz. Rev. Stat. Ann. §§ 13-703 through -706 (1983) Ark. Stat. Ann. §§ 41-1301 through -1358 (1983) Cal. Pen. Code §§ 190 through 190.7 (by initiative) (West 1984) Colo. Rev. Stat. §§ 16-11-101 through -103 (1982) Conn. Gen. Stat. §§ 53a-45 through -46b (1983) Del. Code Ann. tit. 11 § 4209 (1982) Fla. Stat. Ann. § 921.141 (West 1984) Ga. Code §§ 17-10-30 through -63 (1983) Idaho Code § 19-2515 (1983) 111. Ann. Stat. eh. 38 § 9-1 (Smith-Hurd 1982) Ind. Code Ann. § 35-50-2-9 (Burns 1984) Ky. Rev. Stat. Ann. §§ 532.025 through .100 (Baldwin 1983) La. Code Crim. Proc. Ann. art. 905 through 905.9 (West 1984) Md. Ann. Code art. 27 §§ 71 through 79, §§ 412(b) through 414 (1983) Mass. Gen. Laws Ann. ch. 279 §§ 57 through 71 (West 1982) Miss. Code Ann. §§ 99-19-101 through -107 (1983) Mo. Rev. Stat. §§ 565.030 through .032 (1984) Mont. Code Ann. §§ 46-18-301 through -310 (1983) Neb. Rev. Stat. §§ 29-2520 through -2546 (1983) Nev. Rev. Stat. §§ 200.030 through .035 (1984) New Hampshire New Jersey New Mexico New York North Carolina Ohio Oklahoma Pennsylvania South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington Wyoming N.H. Rev. Stat. Ann. §§ 630:1, :5 (1983) N.J. Stat. Ann. § 2C:ll-3 (West 1982) N.M. Stat. Ann. § 31-14-1 (1984) N.Y. Correct. §§ 650 through 666 (McKinney 1983) N.C. Gen. Stat. § 15A-2000 (1983) Ohio Rev. Code Ann. §§ 2929.02 through .06 (Page 1983) Okla. Stat. Ann. tit. 21 §§ 701.9 through .15 (West 1983) Penn. Stat. Ann. tit. 42 § 9711 (Purdon 1983) S.C. Code Ann. §§ 16-3-20 through -50 (Law Co-op. 1983) S.D. Codified Laws Ann. §§ 23A-27A-1 through -41 (1984) Tenn. Code Ann. §§ 39-2-202 through -205 (1983) Tex. Crim. Proc. Code Ann. § 37.071 (Vernon 1983) Utah Code Ann. §§ 76-3-206, -207 (1983) Vt. Stat. Ann. tit. 13 § 2303 (1983) Va. Code §§ 19.2-264.2 through .5 (1983) RCW §§ 10.95.010 through .900 (1983) Wyo. Stat. §§ 6-2-101 through -103 (1984)
Rosellini, Bkachtenbach, and Dore, JJ., and Cunningham, J. Pro Tem., concur.
The Washington statutory scheme provides examples of mitigating circumstances, RCW 10.95.070, discussed infra, part 10. But under United States Supreme Court cases, there can be no limitation of mitigating factors presented by defendant. The judge or jury at the sentencing phase must be free to consider any individual circumstances which would argue against imposition of the death penalty. See Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982); Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978).
Historically the United States Supreme Court has examined the "proportionality" of death sentences to determine a violation of the Eighth Amendment's stricture against cruel and unusual punishment. See our discussion in the following section. As reflected in Pulley, the present thrust of constitutional review of state death penalty statutes is to assure that "wholly arbitrary, capricious, or freakish sentences" are minimized. Pulley, 79 L. Ed. 2d at 37. The Court looks to the sentencing scheme as a whole to determine that "discretion under the statute was sufficiently controlled by clear and objective standards." Pulley, 79 L. Ed. 2d at 37, citing Gregg v. Georgia, 428 U.S. 153, 197-98, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976).
See State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983); People v. Frierson, 25 Cal. 3d 142, 599 P.2d 587, 158 Cal. Rptr. 281 (1979) (Cal. Const. art. 1, § 27 validates death penalty as permissible punishment); State v. Sheppard, 331 A.2d 142 (Del. 1974); Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981); Brewer v. State, 275 Ind. 338, 417 N.E.2d 889 (1981); State v. Myles, 389 So. 2d 12 (La. 1979); Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980); State v. Williams, 652 S.W.2d 102 (Mo. 1983); State v. Anderson, 207 Neb. 51, 296 N.W.2d 440 (1980); Shuman v. State, 94 Nev. 265, 578 P.2d 1183 (1978); State v. Bass, 189 N.J. Super. 445, 460 A.2d 214 (1983); State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (1976); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982); State v. Austin, 618 S.W.2d 738 (Tenn. 1981); Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978); Hopkinson v. State, 632 P.2d 79 (Wyo. 1981).
State v. Randol, 212 Kan. 461, 513 P.2d 248 (1973) (death penalty invalidated following Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972)).
State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981) (statutory authority of an enhanced penalty to be imposed by court determination denied defendant’s right to trial by jury embodied in Or. Const. art. 1, § 11).
State v. Cline, 121 R.I. 299, 397 A.2d 1309 (1979) (mandatory death penalty statute unconstitutional under Eighth Amendment by reason of its failure to provide for consideration of any mitigating factors).
[OPINION BY Rosellini, J. type=concurrence]
Rosellini, J.
(concurring) — I concur in the majority's analysis and conclusion that defendant Campbell was properly found guilty of aggravated murder. His death sentence violates neither the state nor federal constitution. I feel compelled, however, to respond specifically to the dissents of my fellow Justices, reiterating arguments made in the majority opinion. Justice Utter questions two aspects of the statutory scheme for imposing the death penalty: (1) prosecutorial discretion in seeking the death penalty in cases of aggravated murder; and (2) a lack of standards to guide the jury in imposing the death sentence and to guide the reviewing court as to proportional application. Justice Dolliver questions the majority's discussion of both state and federal prohibitions against cruel punishment, and its conclusion that the statutory scheme does not violate those prohibitions.
In responding to these issues, it may be well to outline Washington's statutory scheme, since the relationship between the various elements determines its inherent fairness and its compliance with directives set down by the United States Supreme Court and this court.
1. The statute delineates specific circumstances which constitute aggravated murder, thus narrowing the class of persons subject to life imprisonment or death. RCW 10.95-.020. In this respect the statute conforms to the requirements of Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972). That case requires that the extreme sanction of death should "not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, 428 U.S. 153, 188, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976).
2. The statute provides that any person found guilty of aggravated murder shall serve a life sentence without possibility of release; or, alternatively, the person shall be subject to a special sentencing proceeding to consider imposition of the death penalty. RCW 10.95.030. This bifurcated process complies with that suggested by the United States Supreme Court as "more likely to ensure elimination of the constitutional deficiencies identified in Furman.” Gregg, at 192.
3. At the prosecutor's discretion, a special sentencing proceeding may be sought "when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040(1)- Further, the statute requires that the prosecutor give written notice to defendant within 30 days of arraignment that a special sentencing proceeding will be sought because of an absence of sufficient mitigating circumstances. RCW 10.95.040(2).
In Gregg, the Court denied a challenge to prosecutorial discretion under the Georgia statute, denying as well challenges to discretionary opportunities in the hands of the jury or Governor. Gregg, at 199. Moreover, this court reached a similar conclusion in a unanimous decision in State v. Dictado, 102 Wn.2d 277, 687 P.2d 172 (1984).
The prosecutor's discretion to seek or not seek the death penalty depends on an evaluation of the evidence of mitigating circumstances. This evaluation must determine if sufficient evidence exists to convince a jury beyond a reasonable doubt that there are not sufficient mitigating circumstances....
... The prosecutor does not determine the sentence; the prosecutor merely determines whether sufficient evidence exists to take the issue of mitigation to the jury. This type of discretion does not violate equal protection.
(Citation omitted.) Dictado, at 297-98. See also State v. Rupe, 101 Wn.2d 664, 699-700, 683 P.2d 571 (1984).
4. The statute next outlines who will hear the special sentencing proceeding. RCW 10.95.050. It provides for the continuation of the same jury that heard and determined the guilt phase, unless jury trial is waived by the defendant, or unless circumstances necessitate the impaneling of a new jury.
5. The statute then provides for the conduct of the special sentencing proceeding, including opening statements and presentation of evidence. The statute contemplates that evidence from the guilt phase will be carried forward into the sentencing phase:
In addition to evidence of whether or not there are sufficient mitigating circumstances to merit leniency, if the jury sitting in the special sentencing proceeding has not heard evidence of the aggravated first degree murder of which the defendant stands convicted, both the defense and prosecution may introduce evidence concerning the facts and circumstances of the murder.
RCW 10.95.060(3), in pertinent part. Our decision in State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984) limited the new evidence which may be presented by the prosecution at the sentencing phase.
As noted in the majority opinion, the defense may not be limited in its presentation of factors which would argue for lenience, citing Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982); Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978).
What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.
Zant v. Stephens, 462 U.S. 862, 879, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983).
The statute, however, does provide examples of relevant factors which may be considered by the jury, but does not limit those factors. RCW 10.95.070. In Bartholomew, we considered the necessity of defining "mitigating circumstances" for the jury. In that case, we concluded that the trial court's reading to the jury of the factors delineated in RCW 10.95.070 "adequately guided the jury as to the nature and function of mitigating circumstances." Bartholomew, at 647. See also State v. Rupe, supra at 701.
6. As a final check against an unjustified imposition of the death penalty, the statute requires this court to review every death sentence and determine whether there was sufficient evidence; whether "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant"; and whether the sentence was the result of passion or prejudice. RCW 10.95.130(2)(b). In this regard, the trial court shall have submitted to this court detailed answers as to the defendant, the evidence, and the existence of mitigating circumstances. RCW 10.95.120.
At four specific points, the statutory scheme narrows the class of persons subject to the death penalty: first, on the basis of specific elements of aggravated murder; second, with the prosecutor's decision to seek the death penalty for lack of mitigating circumstances; third, with the jury's consideration of mitigating circumstances; and fourth, with this court's ultimate review of the prior proceedings. This compares favorably with the Georgia plan upheld in Zant v. Stephens, supra.
The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage.
Zant, 462 U.S. at 879. The Georgia plan similarly provides for Supreme Court review to determine whether the death sentence "was arbitrary, excessive or disproportionate." Zant, at 879-80.
This court must draw a fine line to preserve defendant's unrestricted right to argue any factors meriting leniency, while at the same time preserving standards which prevent capricious imposition of the death penalty. Our statute, as interpreted by case law, achieves that balance.
Justice Dolliver's concurring/dissenting opinion appears to question this court's ability to consider a constitutional issue not fully briefed by the parties. His position, however, fails to note that Justice Utter specifically raises the issue of "cruel punishment," by arguing a violation of Const, art. 1, § 14. The issue of proportionality is discussed extensively in Justice Utter's concurring/dissenting opinion. Historically, proportionality has been measured under both the federal and state constitutional prohibitions against cruel punishment. The majority opinion appropriately traces this history, and concludes that the statutory scheme for imposing the death penalty violates neither state nor federal prohibition.
More importantly, this court would be remiss in its duty were it to overlook any apparent or implied constitutional challenge to imposition of a sentence of death. In criminal cases, this court liberally interprets its own rules to permit assertions of constitutional rights. RAP 2.5(a). See Aripa v. Department of Social & Health Servs., 91 Wn.2d 135, 588 P.2d 185 (1978) (issues not presented to trial court will not be heard on appeal "except for cases involving denial of fundamental constitutional rights in criminal trials.. ." Aripa, at 141). See also State v. Lampshire, 74 Wn.2d 888, 447 P.2d 727 (1968). Where a man's life is in balance, we are the more obligated to consider all issues raised.
Finding no constitutional defects in defendant's trial or in the statute on which it was based, I concur with the majority in affirming Campbell's conviction and sentence.
Dore, J., and Cunningham, J. Pro Tern., concur with Rosellini, J.
[OPINION BY Utter, J. type=concurring-in-part-and-dissenting-in-part]
Utter, J.
(concurring in part, dissenting in part) — I concur in that part of the opinion which affirms the conviction for aggravated murder. I dissent to that portion of the opinion that upholds the imposition of the death penalty. Charles Campbell will die in prison, as he should. The only question before us is whether it will be of natural causes or at the hand of the State.
The Washington capital punishment scheme is applied arbitrarily, without pattern or meaningful standards, and therefore violates the equal protection clause of the fourteenth amendment to the United States Constitution. It is also void for vagueness and violates article 1, section 14 of our state constitution by conferring upon the prosecutor standardless discretion to require a special sentencing proceeding. The statute violates these constitutional provisions by allowing the prosecuting attorney to choose who the jury may decide to sentence to death if convicted of aggravated first degree murder, while removing from that consideration criminals convicted of murder similar in circumstance and character. Although language was used in State v. Dictado, 102 Wn.2d 277, 297-98, 687 P.2d 172 (1984), stating that the prosecutorial discretion in RCW 10.95 does not violate equal protection, it was of limited application as it only applied to the mandatory life sentence and not to the additional problems raised by the death penalty aspect of the sentencing scheme.
This court is required by statute to review three matters in all cases where the death penalty has been imposed. RCW 10.95.130 requires this court in each case to decide whether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4). That question is: '"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?"' The second is whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. The third is whether the sentence of death was brought about through passion and prejudice.
To conscientiously comply with the requirements of the statute, judges on this court must first determine whether there are sufficient mitigating circumstances. Here, unfortunately, there is no satisfactory definition of what a mitigating circumstance is. In Lobsenz, Unbridled Prosecu-torial Discretion and Standardless Death Penalty Policies: The Unconstitutionality of the Washington Capital Punishment Statutory Scheme, 7 U. Puget Sound L. Rev. 299, 343 (1984), the author observes:
The statute provides no definition of the term "mitigating circumstance." The closest the statute comes to a discussion of mitigating circumstances is contained in RCW 10.95.070. This section does not speak of mitigating circumstances as such, but instead permits jury consideration of "any relevant factors." The factors listed do not all militate in favor of leniency. The last relevant factor concerns the question of "whether there is a likelihood that the defendant will pose a danger to others in the future." Presumably an affirmative answer to this question militates against leniency. Although some of the factors listed in RCW 10.95.070 could be taken as mitigating circumstances, neither the prosecuting attorney nor the jury is told why these factors qualify as mitigating factors. Since the list is expressly stated to be only illustrative, the statute conveys that there are other relevant factors, yet no legislative directive tells how to determine if these other relevant factors qualify as "mitigating circumstances."
If the underlying truth is that anything may be a mitigating circumstance, then RCW 10.95 is completely standardless, and the statute fails to '"guide' and 'regularize' the discretion of the sentencing jury and [to] make the process of sentencing to death 'rationally reviewable.'"
(Footnote omitted.)
In Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980), the United States Supreme Court has emphasized that a state has
a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates "stan-dardless [sentencing] discretion." It must channel the sentencer's discretion by "clear and objective standards" that provide "specific and detailed guidance," and that "make rationally reviewable the process for imposing a sentence of death."
(Footnotes and citations omitted.) The specific and detailed guidance mandated by Godfrey is lacking in this statute's sentencing phase and this court has no standards by which to determine what a mitigating circumstance is. Even if the specific and detailed guidance mandated by Godfrey does not apply to the sentencing phase, see Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983) (Marshall, J., dissenting), our state constitution "requires stringent procedural safeguards so that a fundamentally fair proceeding is provided. Where the trial which results in imposition of the death penalty lacks fundamental fairness, the punishment violates article 1, section 14 of the state constitution." State v. Bartholomew, 101 Wn.2d 631, 640, 683 P.2d 1079 (1984).
Even if the court could determine what constitutes a mitigating circumstance, no guidance is provided by the statute as to whether some mitigating circumstances are more meritorious than others. If all mitigating circumstances are equally meritorious, is one enough to merit leniency or are more required? There is no definition for the word "sufficient", which leaves the prosecutor and juror free to follow their own personal feelings. For one juror or prosecutor youth may be a sufficient factor; for another, a mental illness; for another, no prior record; for another, a low mental capacity. Our statute requires just one aggravating factor to be sufficient to impose capital punishment. Is one mitigating factor likewise sufficient? The statute fails to say so and by so failing leaves this court and jurors without articulable standards which we may apply.
Second, this court must determine whether the sentence of death is excessive or disproportionate to the sentence imposed in similar cases. Since Washington's death penalty was reinstituted after Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), numerous occasions have arisen in which the prosecuting attorney had the opportunity to request a special sentencing proceeding. A review of our records from January 1981 to November 1984 reveals 140 cases other than automobile homicides, where human life was violently taken. In 61 of those cases, there appeared to be no aggravating factors. Although some of these cases arose after our Frampton decision invalidating the 1977 death penalty act, State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981), of approximately 46 charges filed under the 1977 act, only 12 sought the death penalty and only 2 others sought life without parole.
The pattern of filings and of jury verdicts under our new statute defies any rational explanation. Out of 33 aggravated murders charged since the last statute was passed, the death penalty was sought in only 11 cases. We can find no basis on the face of these cases to explain why many of the cases where the death penalty was not sought differ in substantial degree from many where the death penalty was sought. In State v. Carey, Whatcom County cause 82-1-00291-0 (Feb. 10, 1983), a 28-year-old Caucasian was charged and convicted of the arson murder of his wife and 18-month-old son. The death penalty was not sought. In State v. Ramil, King County cause 81-1-01924-9 (Nov. 18, 1981); State v. Guloy, King County cause 81-1-01924-9 (Nov. 18, 1981); and State v. Dictado, 102 Wn.2d 277, 687 P.2d 172 (1984), the defendants were involved in the execution slaying of two union reformers who were elevated to office to achieve change in corrupt union practices. The death penalty was not sought. In State v. Kincaid, Yakima County cause 82-1-00396-0 (Dec. 27, 1982) and State v. Brown, King County cause 82-1-03429-7 (Apr. 13, 1983), two innocent victims were killed by each defendant and yet the death penalty was not sought. In State v. Manthie, Kitsap County cause 82-1-00003-3 (June 21, 1982) and State v. Edmondson, Kitsap County cause 82-1-00244-3 (Mar. 16, 1983), both cases arising from the same crime, one defendant was hired by the other to commit murder and the death penalty was not sought.
Most recently, David Frederick Simmons and Henry William Dailey, Jr., were convicted of aggravated murder for killing a Lynnwood couple and then hiding their bodies in Lake Sammamish. The death penalty was not sought. On October 23, 1984, Pierce County Superior Court Judge Thomas A. Swayze, Jr., sentenced Louis Otis Maryland to life without parole after he pleaded guilty in the death of an 85-year-old woman whose body was found in her burned-out home. In a typewritten confession, Maryland stated that he intended to rob the woman who he knew had money because of a previous business transaction with her. Maryland said that he tied up his victim and tried, "to put [her] to sleep" by injecting her with insulin he found in her kitchen. After that attempt failed, he next tried "anything that was liquid in the kitchen," including alcohol and chlorine. He then said he tried unsuccessfully to strangle her and suffocate her. Finally, he doused her room and part of the living room with turpentine and set the house on fire. The prosecutor told the judge that the prosecutors agreed not to seek the death penalty if Maryland pleaded guilty. In all the remaining cases where no death penalty was sought, the defendants killed innocent victims in the course of either a rape or other felony, and yet faced no possibility of execution.
In the 11 cases out of the 35 aggravated murders where the death penalty was sought, a jury did not authorize imposition of the death penalty in 6. In one of these, one person was killed, in two, two were killed and in another one the codefendant in the Wah Mee Club killing of 13 people faces the death penalty while his two accomplices do not. State v. Ng, King County cause 83-1-00504-0 (Oct. 25, 1983). The King County prosecutor recently announced that no aggravated charges will be filed against Tony Ng, a recently discovered suspect in the Wah Mee killings.
Finally, the court is required to determine whether the sentence of death was brought about through passion and prejudice. The structure of this statute makes that determination difficult, if not impossible. Where a prosecutor has "reason to believe" that there are not sufficient mitigating circumstances as determined solely within his discretion, he is directed to request a death sentence. Even though there may be a number of identifiable mitigating circumstances, if the prosecutor believes there is one reason to believe the mitigating circumstances are not sufficient, this is all that is required to put the question of capital punishment before the jury. The statute requires no reason to be stated for the record, nor any justification for requesting capital punishment. No affidavit filed with the court is required and we are absolutely unable to determine what the underlying reason is for allowing the jury to consider imposition of the death penalty that distinguishes it from other aggravated murders.
In a case as factually repugnant as this, it may be difficult to conceive of any reason to quarrel with the prosecutor's choice. Indeed, the facts were so repugnant that the prosecuting attorney officially acknowledged the receipt of a petition containing over 1,000 signatures calling on the prosecutor to seek the death penalty. The prosecutor placed the petition in his official file and sought the death penalty. Public outcry may, however, be a double-edged sword which makes impossible the determination of whether or not passion or prejudice plays a role in bringing about the sentence of death. In King County, labor reform leaders were allegedly gunned down by hired assassins. Members of the defendants' ethnic community asked that the prosecutor not seek the death penalty against code-fendants in that case. The death penalty, in turn, was not sought. The nature of the deaths, the argument that the killings were for hire, and the brutal murders of idealistic labor reformers make that case difficult to distinguish from other homicides of the most aggravated nature.
Because there is no requirement for the prosecutor to state the reason for his belief that there are not sufficient mitigating factors, the statute is open to a politicized determination of whether or not the jury should be required to determine whether or not the death penalty should be imposed. I believe this is a fatal flaw.
The United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 565, 41 L. Ed. 2d 935, 956, 94 S. Ct. 2963 (1974) highlighted the fundamental requirement that procedural due process guarantees citizens the right to an explanation when governmental officials take action that adversely affects them: "[T]he provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly." Lacking such a requirement, I believe this statute leaves the court with a constitutionally defective inability to fulfill its duty of review.
In People ex rel. Rice v. Cunningham, 61 Ill. 2d 353, 336 N.E.2d 1 (1975), the Illinois Supreme Court examined that state's death penalty. That statute directed a panel of three judges to decide whether "there are compelling reasons for mercy" such that the death sentence should not be imposed. That court concluded, "the provision is defective because it does not contain standards or guidelines to be considered in determining whether there are 'compelling reasons for mercy' and the imposing of a sentence other than a sentence of death." Cunningham, at 361. I cannot distinguish the problem presented to the Cunningham court from that presented to this court.
If the policy of this state is retribution for capital crimes, then it must be evenhanded. Evidence nationally of discriminatory and irrational application of the death penalty is substantial. See, e.g., Bowers & Pierce, Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 26 Crime & Delinq. 563 (1980); Foley & Powell, The Discretion of Prosecutors, Judges, and Juries in Capital Cases, 7 Crim. Just. J. 16 (Fall 1982); Jacoby & Paternoster, Sen tencing Disparity and Jury Packing: Further Challenges to the Death Penalty, 73 J. Crim. L. & Criminology 379 (1982); Kleck, Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the Evidence With Additional Evidence on the Death Penalty, 46 Am. Soc. Rev. 783 (1981); Radelet, Racial Characteristics and the Imposition of the Death Penalty, 46 Am. Soc. Rev. 918 (1981); Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 Harv. L. Rev. 456 (1981).
The potential for discriminatory imposition of the death penalty has been recognized by lower federal courts. See, e.g., Harris v. Pulley, 692 F.2d 1189, 1197 (9th Cir. 1982), rev'd and remanded, _U.S. _, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984) (holding that "the district court should, if it becomes necessary, provide an opportunity to develop the factual basis and arguments concerning the race-discrimination and gender-discrimination claims"). Following the remand from the Supreme Court, the Ninth Circuit has returned the case to the district court for consideration of those claims and others not addressed by the Supreme Court. Harris v. Pulley, 726 F.2d 569 (9th Cir. 1984). Imposition of the death penalty may even vary widely in similar circumstances between regions within a state. Bowers & Pierce, Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 26 Crime & Delinq. 563, 601-07 (1980). See appendix.
A constitutional death penalty statute should not allow the imposition of the death penalty in a standardless manner. This State's penalty is fatally flawed for this reason and I must therefore dissent.
Appendix Probability of Receiving the Death Sentence in Florida and Georgia for Felony and Nonfelony Homicide, by Judicial Circuits/Counties Grouped Regionally (from effective dates of respective post-Furman capital statutes through 1977).
Dolliver, J., concurs with Utter, J.
Bartholomew did not address the prosecutorial discretion issue raised here.
[OPINION BY Dolliver, J. type=concurrence]
Dolliver, J.
(concurring in the concurrence and dissent) — I concur with the views expressed by Justice Utter. I write, however, because of my concern over the treatment by the majority of the question as to whether the death penalty is per se unconstitutional under Const. art. 1, § 14: "Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted."
Although the majority states the issue is "raised implicitly", majority at 31, there is no contention by defendant, either in his brief or oral argument, that the death penalty is unconstitutional per se. The issue was not discussed by the State nor were briefs from amicus curiae requested. Under these circumstances, it seems to me inappropriate for a matter of this significance to be addressed by the court. See State v. Rupe, 101 Wn.2d 664, 711, 683 P.2d 571 (1984) (Dolliver, J., concurring in the result).
Utter, J., concurs with Dolliver, J.
[OPINION BY Pearson, J. type=concurring-in-part-and-dissenting-in-part]
Pearson, J.
(concurring in part, dissenting in part) — I concur with the majority in affirming the aggravated murder conviction. I further concur with Justice Utter's dissent, except that part which states that a review of mitigating circumstances is impossible under the current statute.
The death penalty statute provides adequate guidance as to the "nature and function of mitigating circumstances". See State v. Bartholomew, 101 Wn.2d 631, 647, 683 P.2d 1079 (1984) (Bartholomew II). Therefore, it is my judgment that this court is able to review adequately whether sufficient mitigating circumstances exist to merit leniency.
However, I concur with Justice Utter's analysis that the statute allows the prosecutor to make discretionary decisions as to when and why the death penalty will be sought, yet does not provide a mechanism for adequate review of those decisions by this court. We are therefore unable to undertake a meaningful proportionality or passion review. This issue was not considered in State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982) (Bartholomew I), or Bartholomew II.
Accordingly, I too would hold that the statute is void for vagueness under the due process clause. I would remand for sentencing to life in prison without the possibility of parole pursuant to RCW 10.95.090. See Bartholomew I, at 214-16.
Williams, C.J., concurs with Pearson, J.
After modification, further reconsideration denied December 28, 1984.
[No. 55977-5.
En Banc.
March 23, 1989.]
The State of Washington, Respondent, v. Charles R. Campbell, Appellant.
Charles Rodman Campbell, pro se, and Al Lyon, for appellant.
Seth R. Dawson, Prosecuting Attorney, and Larry McKeeman, Chief Criminal Deputy, and Seth Aaron Fine, Deputy, for respondent.
[OPINION BY Callow, C.J. type=majority]
Callow, C.J.
Charles Rodman Campbell appeals from an order of the Snohomish County Superior Court setting March 30, 1989, as the date for his execution on his conviction for three counts of aggravated first degree murder. We affirm the Superior Court's order.
Facts
On November 26, 1982, following a lengthy trial, a Snohomish County Superior Court jury convicted Campbell of three counts of aggravated first degree murder. In the subsequent special sentencing proceeding, the jury found insufficient mitigating circumstances to merit leniency. Campbell was sentenced to death. This court upheld Campbell's conviction and sentence on direct review. State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985).
On January 21, 1985, the Snohomish County Superior Court issued a death warrant scheduling Campbell's execution for March 29, 1985. This court stayed execution to permit Campbell to seek review of this court's decision by petition for certiorari to the United States Supreme Court. The Supreme Court denied Campbell's petition for certiorari on April 29, 1985.
On May 17, 1985, the Snohomish County Superior Court issued a second death warrant scheduling Campbell's execution for July 25, 1985. Campbell moved this court to stay the execution pending the filing and disposition of a personal restraint petition; in this motion he identified 23 issues which he alleged had not previously been litigated. On July 18, 1985, this court denied the motion for a stay, treating it and the supporting pleadings as a personal restraint petition which the court also denied on the merits.
On July 22,1985, Campbell filed a habeas corpus petition in the United States District Court for the Western District of Washington. The District Court granted a stay of execution pending disposition of Campbell's habeas corpus petition. During the habeas corpus proceeding, Campbell identified 61 different issues to be litigated. The District Court determined that Campbell had not exhausted state remedies with respect to all but 21 of those issues. Campbell amended his federal complaint to delete the unexhausted claims and proceeded with the remaining 21 exhausted claims. The District Court denied Campbell's habeas corpus petition on February 12,1986.
On October 6, 1987, the United States Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court. The United States Supreme Court denied Campbell's petition for certiorari to review this decision on November 7, 1988, and denied his petition for rehearing on January 9, 1989. The Ninth Circuit Court of Appeals granted the State's motion to dissolve Campbell's stay of execution on January 25, 1989.
In apparent anticipation of these actions by the Supreme Court and the Ninth Circuit, on August 21,1988, Campbell moved this court to appoint counsel for the purpose of preparing a second personal restraint petition. This court denied Campbell's motion on December 6, 1988.
On February 15, 1989, the Snohomish County Superior Court issued a third death warrant scheduling Campbell's execution date for March 30, 1989, and appointed counsel in order to assist Campbell in taking a direct appeal of its order to this court. The court also found Campbell to be indigent and thus to qualify for the appointment of counsel to assist him in seeking review of the February 15 order in this court.
Two matters involving Campbell are now before this court. First, on March 3, 1989, Campbell again moved this court to appoint counsel for the purpose of preparing a second personal restraint petition. He also sought a stay of execution pending this proposed new collateral attack on his conviction. By order dated March 8, 1989, this court granted the motion to appoint counsel. The court did not grant the motion for a stay. Instead it afforded counsel the opportunity to further brief the matter in an attempt to show the existence of issues not previously litigated which have sufficient potential merit to require a stay to permit further consideration by this court. That matter was set for argument to the court on March 23, 1989.
Meanwhile, on March 7, 1989, Campbell separately filed a notice of appeal from the February 15 order. In a second order dated March 8, 1989, this court set an accelerated briefing and hearing schedule for this appeal. The court ordered Campbell's counsel to perfect the record and submit opening briefs by March 16, 1989; ordered the State to submit responsive briefs by March 20, 1989; ordered Campbell's counsel to submit a reply brief, if any, by March 22, 1989; and ordered Campbell to submit his pro se supplemental brief, if he desired to file one, by March 22, 1989. The court heard oral argument in this appeal on March 23, 1989, immediately following oral argument on the separately filed motion for a stay.
Analysis
Campbell seeks to appeal the order of the trial court setting his execution for March 30, 1989. Campbell asserts a right to appeal under RAP 2.2(a)(13), which provides that a party may appeal " [a]ny final order made after judgment which affects a substantial right." A death warrant is a final order made after judgment. However, we hold that it does not affect a substantial right within the meaning of this rule.
If appeal were to lie from a death warrant, a defendant could indefinitely postpone execution of the death sentence. The execution date can be set no later than 90 days from the date of the issuance of the death warrant. RCW 10.95-.160. RAP 5.2(a) provides the defendant 30 days in which to file the notice of appeal. The notice of appeal would stay execution of the sentence. RCW 9.95.062. The record must then be perfected, briefs filed, and argument heard. RAP 9.2, 10.2, 11.1.
Absent extraordinary court intervention, the death warrant would almost certainly expire by the time the appeal were considered. This means the trial court would be required to issue another warrant from which the defendant could again appeal. RCW 10.95.200.
If such a practice were tolerated, it would result in an endless chain, which would involve an absurdity in the administration of the law that would justly bring it into disrepute and totally destroy its efficacy[.]
State v. Boyce, 25 Wash. 422, 425-26, 65 P. 763 (1901).
This court has previously reviewed and affirmed the judgment imposing the death sentence. State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985). A final order entered after judgment is appealable under RAP 2.2(a)(13) only if it affects a right other than those adjudicated by the earlier final judgment. Seattle-First Nat'l Bank v. Marshall, 16 Wn. App. 503, 508, 557 P.2d 352 (1976). The trial court's order issuing the death warrant does not affect new substantial rights. State v. Seaton, 27 Wash. 120, 67 P. 572 (1902). State v. Boyce, supra; State v. Nordstrom, 21 Wash. 403, 58 P. 248 (1899) (interpreting Laws of 1893, ch. 61, § 1(7) — the identically worded predecessor to RAP 2.2(a)(13)). Campbell's appeal is therefore dismissed.
Pursuant to RAP 5.1(c), this court will treat Campbell's notice of appeal as a motion for discretionary review. In view of the posture of this case and in the interests of justice, we accept review and proceed to the merits.
First, Campbell claims that he must serve the remainder of his incarceration time on his various prior felony convictions before he can be executed on his 1982 convictions. He relies for this contention on RCW 9.92.080(1), which provides:
Whenever a person while under sentence of felony shall commit another felony and be sentenced to another term of imprisonment, such latter term shall not begin until the expiration of all prior terms [.]
(Italics ours). Campbell asserts that he is presently still serving out his sentences on his prior convictions. He also notes that even when a defendant is sentenced to death there will necessarily be a period of incarceration prior to any execution. Because of this, Campbell concludes, the quoted statute applies and precludes execution until all prior terms have been served.
We disagree. The plain and unambiguous language of the statute indicates it applies only to persons under sentence of felony who are sentenced to "another term of imprisonment." The phrase "term of imprisonment" refers to a term of confinement set by a court, or, previously, the parole board. St. Peter v. Rhay, 56 Wn.2d 297, 352 P.2d 806 (1960). Campbell was not "sentenced to a term of imprisonment" for the murders, either by the trial court or by the parole board. He was sentenced to death. See RCW 10.95.080. This claim is without merit.
Second, Campbell claims that RCW 10.95.180(1) violates his religious principles, by requiring him "to participate in the decision as to how he shall die when his religious beliefs forbid him from participating in any way in the taking of his own life." Brief of Appellant, at 10. Campbell requests this court to direct the trial court to conduct a hearing to determine the method of execution.
Campbell's argument is unpersuasive. The challenged statute, RCW 10.95.180(1), provides:
The punishment of death... shall be inflicted either by hanging by the neck or, at the election of the defendant, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until the defendant is dead.
This statute does not "require" Campbell to make a decision, but only permits him to "elect" lethal injection instead of hanging. If Campbell chooses not to participate in the decision, the statute itself will determine the method of execution.
We therefore fail to see what purpose could be served by a trial court hearing. Significantly, Campbell does not suggest what evidence might be relevant at such a hearing. Religious beliefs that bar him from participating in any way in selecting the manner of his death would presumably also bar him from informing the court of his preferences in the matter.
In his pro se supplemental brief, Campbell invites the court to reconsider its decision that execution by hanging does not constitute cruel and unusual punishment under the eighth amendment to the United States Constitution and article 1, section 14 of the Washington State Constitution. See State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981). Since we decided Frampton, at least two other states have upheld statutes providing for execution by hanging. DeShields v. State, 534 A.2d 630 (Del. 1987), cert. denied, 108 S. Ct. 1754 (1988); McKenzie v. Osborne, 195 Mont. 26, 640 P.2d 368 (1981). We decline to reconsider Frampton.
Campbell also alleges in his pro se brief that his counsel ineffectively presented certain issues to the Snohomish County Superior Court at the February 15 hearing to set the execution date. Campbell and his attorneys have fully presented all these issues to this court on appeal. Therefore, any error in this regard is harmless.
The Snohomish County Superior Court death warrant setting an execution date of March 30, 1989, is affirmed. In a usual appeal a decision is subject to a motion for reconsideration under RAP 12.4. If that rule pertained here, Campbell might be obliged to seek reconsideration as a prerequisite to further filings in other courts. For this case, therefore, this court will waive and alter certain provisions in RAP 12.4, 12.5, and 12.6, as permitted by RAP 1.2(c) and RAP 18.8(a). No motion for reconsideration will be entertained, and the mandate will issue immediately.
Utter, Brachtenbach, Dolliver, Dore, Pearson, Andersen, Durham, and Smith, JJ., concur.
The existence of a choice of methods does not itself constitute cruel or unusual punishment. See State v. Rupe, 101 Wn.2d 664, 701-02, 683 P.2d 571 (1984).
Charles Rodman CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Superintendent of Washington State Penitentiary, Walla Walla, Washington; Kenneth Eikenberry, Attorney General of the State of Washington, Respondents-Appellees.
No. 89-35210.
United States Court of Appeals, Ninth Circuit.
Order Feb. 21, 1991.
Feb. 27, 1991.
Al Lyon, Mestel & Muenster, Everett, Wash., Robert Gombiner, Nance, Iaria & Gombiner, Seattle, Wash., for petitioner-appellant.
Charles R. Campbell, Monroe, Wash., in pro per.
Paul D. Weisser, Asst. Atty. Gen., Olympia, Wash., John M. Jones, Asst. Atty. Gen., Corrections Div., Olympia, Wash., for respondents-appellees.
Before HUG, POOLE and HALL, Circuit Judges.
ORDER
The order filed February 21, 1991 is ordered published.
ORDER
The court has under submission an appeal on behalf of Charles Rodman Campbell from the order of the United States District Court for the Western District of Washington denying his petition for habeas corpus.
On January 23, 1990, petitioner filed a motion to withdraw from submission three of the issues tendered by him therein, the withdrawal to be “without prejudice” to petitioner’s right to pursue his requests to this court for habeas corpus relief. Although represented by counsel, petitioner has moved to dismiss the counsel representing him before this court and to allow him to proceed pro se, but also to have new counsel appointed. That motion also is under submission.
We have been advised that petitioner filed a personal restraint petition in the Supreme Court of Washington at No. 57406-5 of the records of that court; that his request to that court for appointment of counsel was granted on August 2, 1990; and that Michael P. Iaria, Esquire, was appointed to be counsel for petitioner in that petition. We are further informed that on August 2, 1990, the Supreme Court of Washington established a briefing schedule concerning the issues tendered by the personal restraint petition and set a hearing date thereon for February 5, 1991.
This court has not been advised by counsel for the State of Washington, by counsel appointed to represent petitioner on his personal restraint petition, or by Messrs. Al Lyon and Robert Gombiner, who are counsel of record on behalf of petitioner-appellant on the appeal pending before us, as to the current status of the proceedings in the Washington Supreme Court. The court understands, however, that the personal restraint issues were argued on or about February 5, 1991 and were taken under submission.
This court is most intent that all issues raised by the petitioner be ruled upon by the Washington Supreme Court prior to any ruling by this court. It is essential that we avoid piecemeal litigation of these issues. The fact that the Washington Supreme Court has appointed new counsel and held an additional en banc hearing on three issues causes concern that the application for a writ of habeas corpus in the Federal District Court contained issues not exhausted in the Washington State courts and, thus, may require dismissal pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
Counsel of record for the appellant and for appellees in the case before us are hereby requested to advise this court within 10 days of the current status of the proceedings pending in the Washington Supreme Court, and of any orders made therein or of any other developments which might probably affect the continued vitality of the appeal still pending before us. Additional briefing by counsel may be required depending upon the responses received. Submission of this case is withdrawn pending the responses of counsel and the subsequent determination of whether further briefing is required.
Charles Rodman CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Respondent-Appellee.
No. 89-35210.
United States Court of Appeals, Ninth Circuit.
Aug. 7, 1991.
Charles Rodman Campbell, petitioner-appellant in pro per.
Paul D. Weisser, Asst. Atty. Gen. and John M. Jones, Asst. Atty. Gen., Corrections Div., Olympia, Wash., for respondent-appellee.
Before HUG, POOLE and HALL, Circuit Judges.
ORDER
The motion of petitioner filed herein on June 10, 1991 unequivocally asserts his desire to discharge appointed counsel and to represent himself in all further proceedings in this appeal. He is entitled to do so under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This motion is therefore GRANTED. Attorneys Gombiner and Lyon are relieved from further representation of petitioner.
Petitioner’s earlier motions to withdraw issues III, IV, and V presented in the original briefs in this appeal are DENIED. Petitioner, in his June 10, 1991 motion, notes that in light of the Washington Supreme Court opinion, In the Matter of the Personal Restraint Petition of Charles Rodman Campbell, No. 57406-5, entered March 21, 1991, rehearing denied May 15, 1991, the request to withdraw the issues is no longer desired.
Petitioner on June 10, 1991 filed a document notifying this court that he intended to file a pro se petition for habeas corpus in Federal District Court in Washington based upon the issues presented to and rejected by the Washington Supreme Court in the above-referenced Case No. 57406-5.
In petitioner’s pro se response to our order of February 21, 1991, he represents that the issues presented to the Washington Supreme Court in Case No. 57406-5 are the last remaining issues in his case and that he plans no further personal restraint petitions before that court. Thus, the issues ruled upon by the Washington Supreme Court, together with those issues now before us on appeal, represents the entirety of issues to be resolved in this case.
One complete appeal of some of the issues in this case has already been processed through the federal district court, the Ninth Circuit Court of Appeals, consideration and rejection of rehearing en banc by the Ninth Circuit Court of Appeals, and petition and rejection for certiorari by the United States Supreme Court. See Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380,102 L.Ed.2d 369 (1988). This was completed only to encounter a new petition for habeas corpus because some issues had not been given full consideration by the Washington Supreme Court and presented in the petition to the federal district court. In order to avoid a possible repetition of this piecemeal review, we consider it desirable, before the resolution of this appeal, that the remaining issues that were presented to the Washington Supreme Court, which petitioner states he intends to present in a habeas corpus petition to the federal district court, be considered and ruled upon by that court.
In the notice filed by petitioner on June 7, 1991, he informed this court that he will be filing a pro se petition for habeas corpus in the federal district court. To date, we have received no notification that such a petition has been filed. The petitioner will have until and including August 30,1991 to file such a petition. A ruling on that petition could possibly obviate the need for further consideration of this appeal, or in the event there is an appeal from the district court’s ruling, that appeal will be consolidated with this appeal.
Charles Rodman CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Superintendent of Washington State Penitentiary, Walla Walla, Washington; Kenneth Eikenberry, Attorney General of the State of Washington, Respondents-Appellees.
No. 92-35360.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 16, 1992.
Decided Dec. 24, 1992.
See also 982 F.2d 1356.
David M. Otto, Betts, Patterson & Mines, Seattle, Wash., for petitioner-appellant.
Paul D. Weisser, John M. Jones, Asst. Attys. Gen., Olympia, Wash., for respondents-appellees.
Before HUG, POOLE, and HALL, Circuit Judges.
[OPINION BY CYNTHIA HOLCOMB HALL, Circuit Judge: type=majority]
CYNTHIA HOLCOMB HALL, Circuit Judge:
Charles Campbell appeals from the district court’s dismissal of his third petition for federal habeas relief from his state conviction of three counts of aggravated first degree murder and sentence to death. The district court had jurisdiction to consider the petition under 28 U.S.C. §§ 2241(a) and 2254, and this Court has jurisdiction over Campbell’s appeal under 28 U.S.C. §§ 1291 and 2253. We affirm.
I
Procedural Background
The facts of this case are set out in State v. Campbell, 103 Wash.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985), and Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). Campbell’s 1982 conviction on three counts of aggravated first degree murder and his sentence to death became final on April 29, 1985. Thereafter, Campbell sought state postconviction relief by motion for stay of execution. The state court, treating it as a habeas petition, denied the motion one week before Campbell’s scheduled execution. In July 1985, he began his first round of federal habeas corpus proceedings. This first petition raised 61 claims, but since 40 had not been raised in state court as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), Campbell amended the petition to present only the 21 exhausted claims. After an evidentiary hearing, the petition was denied on the merits; this Court affirmed the denial in 1987, and the Supreme Court denied certiorari in 1988. Campbell v. Kincheloe (Campbell I), 829 F.2d at 1467; 488 U.S. 948, 109 S.Ct. 380.
Campbell sought further state relief in 1989, which was denied. State v. Campbell, 112 Wash.2d 186, 770 P.2d 620 (1989). He then petitioned the federal court a second time for habeas corpus relief. The second petition was also denied, and Campbell’s appeal, initially denied in 1992, is pending rehearing en banc in this Court. Campbell v. Blodgett, 978 F.2d 1502 (9th Cir.1992) (Campbell II), vacated, Campbell v. Blodgett, 978 F.2d 1519 (9th Cir.1992) (Order Granting Rehearing en Banc). Pending the appeal from the denial of his second federal petition, Campbell filed a third petition for relief in state court. The Washington Supreme Court denied this petition on the merits. In re Campbell, No. 57406-5 (Wash. March 21, 1991). Campbell filed yet a third federal habeas petition in 1991, and Respondents moved to dismiss the petition as successive and abusive. The district court dismissed the third petition, concluding that all the claims raised therein were successive or an abuse of the writ. The court also ruled that at least two of the claims failed on the merits. Campbell v. Blodgett, No. C91-1420C (W.D.Wash. March 9, 1992). The district court granted Campbell a certificate of probable cause to appeal.
II
Successive and Abusive Claims
Campbell raised nine claims in his third petition, eight of which relate to jury instructions and the prosecutor’s remarks during Campbell’s sentencing proceeding. The ninth alleges a denial of “meaningful appellate review.” Campbell asserts that these claims constitute previously unexhausted issues, now disposed of on the merits by the Washington Supreme Court. Respondents argue that in one form or another, all of Campbell’s claims either have been previously heard and rejected, or could and should have been raised in prior petitions.
The district court correctly identified the appropriate standard governing the resolution of the question whether the claims were successive and an abuse of the writ. A claim is successive if it was raised in an earlier petition, or if it fails to raise a ground for relief that is new or different than a claim raised in an earlier petition and previously determined on the merits. See 28 U.S.C. §§ 2244(b), 2254 foll. Rule 9 (1988). A “ground” is “sufficient legal basis for granting the relief sought;” a different factual basis or argument asserted to support the same legal theory advanced previously does not constitute a new ground for relief and is successive. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). Claims that are not successive may nevertheless be an abuse of the writ. As explained in McCleskey v. Zant, — U.S. —, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), a subsequent habeas petition which raises new grounds need not be considered if the petitioner has, through deliberate abandonment or inexcusable neglect, abused the writ. See id. at-, 111 S.Ct. at 1466-70.
When a district court denies consideration of the merits of a petition on the ground that it is abusive or successive, we review for abuse of discretion. Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). A court abuses its discretion when it bases its decision on an erroneous legal conclusion or on a clearly erroneous finding of fact. Id.
Campbell agrees that the district court selected the appropriate legal standard, but argues that the court erred in rejecting these as successive claims and abuses of the writ. Campbell’s argument that the district court erroneously determined his claims to be successive and abusive rests on two contentions: (a) after the state reached the merits of his claims, the district court was bound to consider their merits, and (b) the conditions permitting denial without consideration of the merits, set forth in 28 U.S.C. § 2244(b), were not met. We conclude that the district court did not abuse its discretion in either respect.
A
We reject Campbell’s argument that the district court should have reached the merits of Campbell’s claims simply because the Washington Supreme Court found “good cause” to do so. First, nothing in the state court’s order intimates a view that the merits of the claims present good cause for review. Quite to the contrary, the Washington Supreme Court implied that Campbell’s claims were in fact successive and abusive. It reached the merits nevertheless under its “good cause” exception for doing so. In re Campbell, No. 57406-5 at 2 (Wash. May 15, 1991) (Order Denying Reconsideration).
Second, the determination to reach the merits was made for reasons specific to the state proceedings that lack parallel significance in the federal courts. In stating that the “unique procedural history of this case” qualified as “good cause” to reach the merits of Campbell’s claims, the court was referring to the novelty of the state’s postconviction proceedings for defendants facing execution.
Mr. Campbell was the first capital defendant prosecuted under RCW 10.95 to file postconviction pleadings. When he initiated that process in 1985, procedures had not yet been developed to deal with the unique aspects of such cases____ [Campbell] has challenged the fairness of the 1985 proceeding____ [W]e considered the merits of all of his present claims in order to put to rest his complaints about that earlier proceeding.
Id. at 2.
By contrast, Campbell is not the first capital defendant to seek postconviction relief in the federal courts, and the procedures for dealing with such cases are well established. Campbell has fully utilized these procedures, and has received the most comprehensive review of his claims to which he is entitled. We need not reach the merits to assure Campbell, and ourselves, that his claims have been fully considered. Indeed, upon determining that claims raised in a habeas petition are successive or abusive, we may not do so; respect for the finality of convictions, and the significant costs of federal habeas review, forbid it.
[A] court may not reach the merits of: (a) successive claims which raise grounds identical to grounds heard and decided on the merits in a previous petition; (b) new claims, not previously raised which constitute an abuse of the writ; or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims.
Sawyer v. Whitley, — U.S. —, —, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992) (citations omitted). Campbell’s claims are not rendered less successive in federal court, or less an abuse of the power of the federal writ of habeas corpus, by the state court’s view of its own postconviction proceedings. In other words, what constitutes “good cause” to review successive and abusive claims — in the federal idiom, cause and prejudice — is a matter of federal law.
Which leads to the final point: The district court was not required by any principles of comity and federalism to defer to the judgment of the Washington Supreme Court that its treatment of Campbell’s previous state filings for postconviction relief constituted “good cause” to review the claims on the merits. Counsel’s arguments regarding procedural bars and deferential federal review of state determinations miss the mark. The state court’s determination to reach the merits may, like the lifting of a procedural bar, permit a federal court to do the same, see Ylst v. Nunnemaker, — U.S. —, —, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991), but it most certainly does not compel it. We conclude that the district court did not abuse its discretion on that ground.
B
We also reject Campbell’s assertion that the factors permitting a court to dismiss a habeas petition under 28 U.S.C. § 2244(b) are not met. Assuming, arguendo, that the “facts and circumstances which comprise the unique procedural history of Mr. Campbell’s case have never been adjudicated,” these facts are not the ground upon which the application for relief is predicated. They are offered to induce the court to consider the grounds alleged for relief. That such facts have not been adjudicated does not preclude the application of section 2244(b). The district court found that the grounds on which the application is predicated — the jury instructions and prosecutor’s argument — were previously adjudicated. As explained more fully below, with the exception of the claim regarding appellate review, this determination was not an abuse of discretion.
In sum, we conclude that the district court did not abuse its discretion in dismissing Campbell’s third petition as successive and abusive, rather than considering its merits.
Ill
The Jury Instructions
A
Campbell challenges Jury Instruction No. 5 in the penalty phase, which instructed the jury that it must find beyond a reasonable doubt that there were not “sufficient mitigating circumstances to merit leniency” (emphasis added). He claims that by repeatedly phrasing the instruction as to mitigating evidence in the plural, the instruction prohibited the jury from giving effect to “one mitigating circumstance, no matter how persuasive,” in violation of Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Pet. for Writ at 31-32.
The district court found this claim successive, as Campbell raised three claims regarding these provisions of Washington’s capital sentencing statute in his first petition and three similar claims in his second petition. It also found that if the claim could somehow be viewed as new, it was an abuse of the writ. We agree in both respects.
Campbell argues that “the present contention that his jury was improperly instructed presents a new and different ground from his previous challenge to the validity of the Washington statute.” Brief for Pet’r at 43. The jury instructions in this case were taken from the statute verbatim, see Rev.Code Wash. § 10.95 (1990), and Campbell has already challenged the statute in two prior petitions. He has argued that the statute and the instructions worded in its language: (1) fail to adequately guide jury discretion; (2) create a mandatory presumption in favor of the death penalty; (3) fail to provide a reliable standard for imposition of the death penalty; and (4) limit the factors the jury could consider in mitigation. This latest claim is almost an exact repetition of the last, except that Campbell now characterizes the limitation imposed as one of quantity, rather than quality.
The grounds for relief, or legal basis for granting the petition, underlying all of these claims are the same: the constitutional requirements (1) that capital punishment not be imposed in an arbitrary and capricious manner, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and (2) of individualized sentencing in capital cases, Lockett v. Ohio, 438 U.S. at 604-05, 98 S.Ct. at 2964-65, Sumner v. Shuman, 483 U.S. at 78, 107 S.Ct. at 2723. A petitioner may not create a different ground merely by alleging different facts, asserting different legal theories, or couching his argument in different language. Sanders v. United States, 373 U.S. at 16, 83 S.Ct. at 1077. Since both grounds have been raised several times and have been ruled upon on the merits, the district court did not abuse its discretion in refusing to permit Campbell to relitigate them. Moreover, his argument is purely legal, and was available at the time both the first and second petitions were filed. The bringing of these claims, all directed essentially at the same statute upon the same grounds, in this piecemeal fashion is an abuse of the writ that federal courts must not tolerate.
B
Campbell challenges Jury Instruction No. 1 of the penalty phase, which instructed the jurors not to permit prejudice to influence them. It omitted mention of sympathy, which was included in the same instruction during the guilt phase, thereby arguably permitting the jurors to be influenced by sympathy. Campbell argues that the jury should not be permitted to consider sympathy even for the defendant, as its decision must be “based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (Opinion of Stevens, J.). This argument attempts to cast the claim as a challenge to the facially neutral instruction, masking the underlying claim raised in his brief — that, as applied in his case, the instruction permitted the jury to be influenced by sympathy for the victims, rather than for him. This argument the district court found successive, having been raised in Campbell's first petition.
Campbell argues that “[permitting the jury to base its decision on sympathy and emotion violates ... the requirement that the sentencer’s discretion be ‘directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’ ” Brief for Pet’r at 48 (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (opinion of Stewart, J.)). His argument illustrates that this claim rehashes various of Campbell’s attacks on the jury instructions’ failure to limit sentencing discretion. As demonstrated above, such a claim is successive. Campbell’s first petition expressly claimed a failure to adequately guide jury discretion.
Furthermore, the underlying ground for relief — that the jury was improperly influenced by emotion, in violation of due process — was fully considered and rejected in Campbell’s first petition, by means of his attack on the prosecutor’s remarks. See Campbell v. Kincheloe, No. C85-1352 (W.D.Wash. Jan. 21 & Feb. 12, 1986), aff'd, 829 F.2d 1453, 1457-61 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). Although Campbell now alleges a different source of prejudice — the trial court’s instruction, rather than the prosecutor’s remarks — the complaint is the same. It presents no new ground for relief.
C
Campbell next complains that the jury was instructed in the statutory language of section 10.95.070 that it could “consider any relevant factors” and was not given the limiting instruction mandated by State v. Bartholomew, 98 Wash.2d 173, 654 P.2d 1170 (1982), vacated, 463 U.S. 1203, 103 S.Ct. 3530, 77 L.Ed.2d 1383 (1983), adhered to on remand, 101 Wash.2d 631, 683 P.2d 1079 (1984), that such consideration was limited to relevant mitigating factors. Absent the limiting instruction, he argues that the instruction was unconstitutionally vague and failed to adequately guide the jury’s determination. He also complains that the jury was not instructed to consider his character, the record, or the circumstances of the offense as mitigating circumstances. The district court found both claims successive, having been raised in both the first and second petitions.
On appeal, counsel attempts to recharacterize the complaints as a claim that the jury instructions “imposed a barrier to the consideration of the range of permissible mitigating evidence.” Brief for Pet’r at 45. Campbell’s first petition argued that the instructions failed to provide adequate standards for channeling the jury’s discretion. His second petition claimed that the instructions limited the factors the jury could consider in mitigation. We agree with the district court that either articulation of the complaint raises the same grounds for relief as the two preceding petitions. The claim is successive.
IV
The Prosecutor’s Remarks
During penalty phase arguments, while arguing to the jury that Campbell was not suffering from any mental disease or defect, the prosecutor remarked on the jury’s observations of Campbell during the proceedings. Campbell argues that the prosecutor’s argument was improper because in drawing attention to his courtroom demeanor, it encouraged the jury to consider his failure to testify and his ability to represent himself at trial. He contends that the jury impermissibly imposed the death penalty on the basis of this constitutionally-protected behavior. Campbell also claims that the prosecutor’s assertions of uncontradicted evidence in the record impermissibly commented upon his right to remain silent.
The district court determined that Campbell’s brief in support of his first petition attacked the trial court’s failure to instruct the jury that it could not consider his failure to testify, but not the prosecutor’s remarks in that respect. Because the argument was available to him earlier, the district court concluded that the claims were an abuse of the writ. It also concluded that because the claims raise “purely legal arguments, Mr. Campbell cannot expect to establish cause for his failure to raise them before.” Campbell v. Blodgett, No. C911420C, at 10 (W.D.Wash. March 9, 1992). Nevertheless, the district court went on to address the claims’ merits.
At the time of Campbell’s earlier petitions, this Circuit would not find a subsequent habeas petition abusive where it presented a new claim that had been deliberately withheld from an earlier petition in a good faith belief it would have been barred as unexhausted. Such a claim could be brought in a later federal habeas petition after exhausting state remedies. Neuschafer v. Whitley, 860 F.2d 1470, 1475-76 (9th Cir.1988) (citing Tannehill v. Fitzharris, 451 F.2d 1322, 1323 (9th Cir.1971)), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). McCleskey v. Zant makes clear that this result does not, however, follow automatically. See — U.S. at —, 111 S.Ct. at 1468. To justify this costly litigation strategy, be it deliberate choice, procedurally-constrained decision, or neglect, a petitioner must show cause for the omission and prejudice therefrom. Id. at 1470.
We assume without deciding that Campbell could show cause and prejudice for his failure to raise these claims in his first federal habeas petition. That petition was filed under circumstances similar to those of Neuschafer: (1) once his conviction became final, Campbell acted expeditiously to seek state postconviction relief; (2) the Washington Supreme Court refused to stay imposition of Campbell’s death sentence and refused to grant his newly-appointed counsel sufficient time to review the record to identify and exhaust all of his federal constitutional claims; and (3) Campbell was scheduled to be executed within several days. Cf. 860 F.2d at 1478. New counsel appointed June 25 filed the first petition on the heels of the state court’s denial of postconviction relief on July 18, facing an execution date of July 25.
Campbell offers no persuasive explanation, however, as to why this claim was not presented in his second petition. This petition was filed under circumstances more akin to those of Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984) (per curiam). In that case, the petitioner allowed nearly two years to elapse between the affirmance of his conviction and the filing of his first motion for post-conviction relief in the state courts. Id. at 206 n. 4, 104 S.Ct. at 964 n. 4. The Court rejected as meritless the argument that he could not have been expected to present the new claims dismissed as abusive in his earlier petition because his counsel “was appointed when execution was imminent and therefore did not have time fully to familiarize himself with the case.” Id. Campbell’s stay of execution entered in July, 1985 was in place for more than three years pending final decision in Campbell I. During that time, Campbell was represented by counsel, who did not withdraw until the appeal was denied. Since that counsel had attempted to raise the claim on appeal of the first petition, Campbell cannot contend that he was unaware of the claim. Yet during that time, no action was taken to obtain further relief in state or federal court. After certiorari was denied and this court dissolved the stay of execution on January 25, 1989, the state court issued a death warrant scheduling Campbell’s execution for March 30, 1989. Only then did Campbell commence his flurry of filings, filing a motion for a stay of execution, an appeal of the warrant, a motion for appointment of counsel, a second federal habeas petition, and a motion for a stay of execution by the federal court, all within the month of March.
“When a petitioner has ample time to seek collateral relief but inexplicably waits until the eve of execution to do so, he should not be heard to complain that time constraints prevented his counsel from identifying and exhausting all claims in time to include them in a single federal habeas petition.” Neuschafer, 860 F.2d at 1481 (Alarcon, J., concurring). We conclude that Campbell has not shown cause for his failure to raise these claims in his second petition. While the claims appear to be meritless in any case, we hold that they are an abuse of the writ and warrant no further review.
V
State Appellate Review
Campbell argues that he was denied meaningful appellate review of his sentence by the Washington Supreme Court,, because it did not independently review the record for evidence that his death sentence was imposed through passion and prejudice, as required by state law. He adds, however, that the Washington court did not review the record for such a claim because defense counsel failed to present evidence or briefing to that effect. The district court concluded that this claim merely reargues the ineffective assistance of counsel claim previously raised in Campbell’s second petition, because any failure to consider evidence resulted from defense counsel’s omission. The propriety of this determination is not self-evident.
The Washington death penalty statute requires the Washington Supreme Court to review each death sentence imposed to determine “whether the sentence of death was brought about through passion or prejudice.” Wash.Rev.Code §§ 10.95.100, .130(2)(c) (1991). The statute provides that sentence review shall be consolidated with any appeal, and that counsel “may” submit briefs and oral argument. Id. § 10.95.-130(1). This suggests that the court’s duty to review is indeed independent of any submission by counsel. In affirming Campbell’s conviction and sentence, the sum total of the state court’s discussion of its inquiry, analysis and finding pursuant to section 10.95.030(2)(c) was as follows:
Third, no evidence was presented to support the proposition that [Campbell’s] sentence was brought about through passion or prejudice. The selection of a jury from Spokane significantly lessened the local fervor.
State v. Campbell, 103 Wash.2d 1, 691 P.2d 929, 946 (1984) (emphasis added). Campbell claims that although the statute mandates an “independent” review, the court’s statement reveals that it was looking to counsel to present evidence. Furthermore, the court’s opinion implied that the only source of such prejudice was eliminated by the change of venue for the jury venire. This demonstrates, according to Campbell, that the court relied on an irrelevant factor in making its determination, because “local fervor” prior to jury selection is irrelevant to passion and prejudice arising from the manner in which evidence, argument, and instruction were presented during the proceeding. These claims challenge the court’s actions, not defense counsel’s. We conclude that the district court erred in characterizing this claim of inadequate appellate review as one of ineffective assistance of counsel. The district court therefore abused its discretion in denying the claim as successive on that basis.
It is not absolutely clear that Campbell has presented this precise claim to the state court for adjudication. In his third petition to the state court for relief, Campbell argued that his sentence had not received meaningful appellate review for proportionality; he did not allege failure to review for evidence of passion and prejudice. The Washington Supreme Court, however, ruled on the broader ground underlying his claim: whether the statutory review he received was meaningless. Accordingly, we consider this claim exhausted.
Nevertheless, it affords no basis for granting Campbell’s petition. Federal habeas corpus relief does not lie for errors of state law. Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984). Campbell’s complaint of an alleged “failure on the part of the Washington Supreme Court to fulfill its statutory mandate,” Petitioner’s Reply Brief at 17, is not cognizable in federal habeas proceedings. If a state law error could be sufficiently egregious to amount to a due process violation, Campbell fails to show that such is the case here. The Washington statute directs the trial court to prepare a report to guide the automatic appellate review. See Rev.Code Wash. § 10.95.120 (1991). That statute focuses the court’s attention on specific factors relevant to jury passion or prejudice, particularly community publicity. Id. § 10.95.120(6); see especially id. §§ (6)(g), (h). Campbell cites no authority, state or federal, for the proposition that the statute requires the appellate court to engage in independent scrutiny of all the evidence presented throughout the entire trial and sentencing proceeding, with no direction from an appellant as to the nature or location of potentially relevant material.
Moreover, even if we agreed that that court had failed to conduct an independent review, it does not follow that its review was constitutionally inadequate. Absent a specific constitutional error, our review is limited to determining whether the Washington Supreme Court’s performance of its statutory review was “so arbitrary and capricious as to constitute an independent due process or Eighth Amendment violation.” Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1870-71, 40 L.Ed.2d 431 (1974) (absent a specific constitutional violation, federal habeas review of trial error is limited to whether the error “so infected the trial with unfairness as to make the resulting conviction a denial of due process”)). Although the Constitution may require “some form of meaningful appellate review,” Pulley v. Harris, 465 U.S. at 45, 104 S.Ct. at 876 (citing Gregg v. Georgia, 428 U.S. at 198, 204-06, 96 S.Ct. 2909, 2936, 2939-41), the essential function of appellate review by a court of statewide jurisdiction is to ensure the “evenhanded, rational, and consistent imposition of death sentences under law,” id. 465 U.S. at 49, 104 S.Ct. at 878 (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976)).
The Washington Supreme Court issued a reasoned opinion, setting forth the abundant evidence against Campbell and fully addressing the claims raised by his appeal. The opinion shows that the court considered the statutory questions. We note also that Justice Utter’s dissent discussed at length the possibility that passion and prejudice affected Campbell’s sentence, further assurance that the court’s attention was directed to the issue. See 691 P.2d at 955-57. We bear in mind that Campbell’s appeal specifically pointed to one instance of prosecutorial argument and the statutory jury instructions as prejudicial. See 691 P.2d at 938, 944. In this context, we do not find it arbitrary that the court’s analysis of abstract “passion or prejudice” was directed toward the possible impact of community publicity. Nor can we conclude that the court’s review was so deficient as to render the entire sentencing determination, which we have repeatedly upheld in the face of more focussed attacks, unconstitutional. We hold that if there were any shortcoming in the direct appellate review Campbell received, it was not of constitutional magnitude.
VI
Cause and Prejudice
Campbell argues that the district court erred in dismissing his claims as successive and abusive without holding an evidentiary hearing at which to show cause for and prejudice from the failure to raise the claims previously. To avoid the bar to further federal review raised by an abusive petition, a habeas petitioner must show cause for his failure to raise the claims earlier and actual prejudice therefrom. McCleskey v. Zant, — U.S. at —, 111 S.Ct. at 1470. No evidentiary hearing is necessary if the district court determines as a matter of law that a petitioner cannot satisfy the standard. Id. The district court determined that Campbell could not show cause. As our decision with respect to the claims held to be an abuse of the writ demonstrates, we agree. The district court did not err in foregoing an evidentiary hearing.
Where a petition is successive, however, we need not inquire into cause for failure to raise a claim, because a successive claim by definition has been raised before. Instead, we consider whether the ends of justice require an opportunity for the petitioner to relitigate claims previously decided against him. Kuhlmann v. Wilson, 477 U.S. 436, 444-45, 106 S.Ct. 2616, 2621-22, 91 L.Ed.2d 364 (1986). The “ends of justice” permit us to entertain successive claims only where a petitioner supplements his constitutional claims with a “colorable showing of factual innocence.” 477 U.S. at 454, 106 S.Ct. at 2627. Where a petitioner alleges error at a capital sentencing proceeding, rather than at the trial of the capital offense, he must show “by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty under [Washington] law.” Sawyer v. Whitley, — U.S. —, —, 112 S.Ct. 2514, 2523, 120 L.Ed.2d 269 (1992).
Neither Campbell’s claims of deficient jury instructions nor those of improper prosecutorial argument during the penalty phase bear on the question of his eligibility for capital punishment. Both claims go to the jury’s consideration of the existence or lack of sufficient mitigating circumstances to warrant a sentence of life imprisonment. Moreover, Campbell has expressly disclaimed any attempt to meet the “actual innocence” exception, relying on the argument that his claims are not successive.
Conclusion
We find no abuse of discretion in the district court’s dismissal of Campbell’s claims regarding the jury instructions as successive and the prosecutor’s remarks as an abuse of the writ. We agree with the district court that “Mr. Campbell’s claims are nothing more than restatements of, and variations on, the constitutional arguments which have previously been examined at every level of available review. The interests of justice are not furthered by continuous reexamination of these issues.” Although the district court abused its discretion in dismissing the claim of inadequate appellate review as successive, we conclude that the claim is meritless.
AFFIRMED.
"A subsequent application for a writ of habeas corpus ... need not be entertained ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly-asserted ground or otherwise abused the writ.” 28 U.S.C. § 2244(b) (1988).
Campbell challenged section 10.95.070 in his first petition; in his second, he unsuccessfully sought to attack that section again, and also section 10.95,060(4). His third petition points once again to section 10.95.060(4).
In January 1990, pending decision of the appeal from the denial of his second petition, Campbell sought to withdraw the three jury instruction/death penalty statute issues without prejudice to later relitigating them in federal court, so that he could resubmit them to the Washington Supreme Court. Pet’r Mot. to Withdraw from Submission Certain Issues on Appeal at 2, 3, Campbell v. Blodgett, 978 F.2d 1519 (9th Cir.1992). We denied the motion. Campbell v. Blodgett, 940 F.2d 549, 549 (9th Cir.1991) (Order). Those issues were presented in his third state petition and denied on the merits, and it is those same issues which he seeks to raise here, in a different guise. Campbell’s attempt to withdraw the claims from the second petition so that he could relitigate them here after the state court revisited the issues is, in effect, an admission that the claims now presented are successive.
In his petition to the district court, Campbell also claimed that the prosecutor improperly commented on his future dangerousness and failed to notify him that the subject would be argued to the jury. The district court determined that these claims were successive, having both been raised and adjudicated in his first petition. Campbell has abandoned these claims on appeal.
McCleskey does not establish a new rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and therefore does apply to this habeas petition. Harris v. Vasquez, 949 F.2d 1497, 1512 (9th Cir.1991) (on denial of rehearing en banc), cert. denied, — U.S. —, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992).
Campbell’s first petition challenged numerous aspects of the prosecutor’s penalty phase argument, claiming that the prosecutor had improperly appealed to the jury’s passion and prejudice. On appeal from the denial of that petition, he attempted to add an argument that the prosecutor had improperly commented on his failure to testify, but we refused to consider the claim as it was raised for the first time on appeal and not exhausted. See 829 F.2d at 1455-56 n. 1.
We note, however, that these claims are not among the 40 identified but unexhausted claims initially presented in his first federal petition.
Campbell did seek appointment of counsel to litigate the unexhausted issues, but only after the appeal was denied and his pro se petition for certiorari was pending, more than three and one half years later.
The district court apparently adopted the state’s analysis of the claim in this respect. See Resp’t Brief on the Merits at 19-23, Campbell v. Blodgett, No. C91-1420C (W.D.Wash. March 9, 1992). The. state obviously missed the thrust of Campbell’s claim. It argued that appellate counsel’s assistance was not prejudicial, asserting "[mjoreover, [the statute] requires the Washington Supreme Court to review the record of each capital case____ Thus, even if appellate counsel does not specifically raise such a claim, the court will nevertheless review the record for evidence that passion and prejudice played a role in the jury’s verdict.” Id. (emphasis added). The claim is that the court failed to do precisely that.
Section 10.95.130 also mandates review of the proportionality of a capital sentence. § 10.-95.130(2)(b). Campbell could not raise this claim here, however, as there is no federal right to proportionality review. Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct 871, 879, 79 L.Ed.2d 29 (1984).
As it has not been raised and adjudicated in Campbell’s earlier petitions, the claim is not successive; nor is it abusive, as it was omitted in good faith because unexhausted.
Sawyer v. Whitley overrules the prior rule in this Circuit that to meet the "ends of justice” or "actual innocence" requirement, a petitioner need only show that “it is more probable than not that, but for constitutional error, the sentence of death would not have been imposed," which showing may extend to mitigating factors as well. Deutscher v. Whitley, 946 F.2d 1443, 1446 (9th Cir.1991), vacated for reconsideration in light of Sawyer v. Whitley, — U.S. —, 113 S.Ct. 367, 121 L.Ed.2d 279 (1992). We need not consider whether Sawyer announces a new rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), as we conclude that Campbell fails to meet our prior, more lenient standard as well.
Charles Rodman CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Superintendent of Washington State Penitentiary, Walla Walla, Washington; Kenneth Eikenberry, Attorney General of the State of Washington, Respondents-Appellees.
No. 92-35360.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 16, 1992.
Opinion Filed Dec. 24, 1992.
As Amended on Denial of Rehearing and Rehearing En Banc June 8, 1993.
David M. Otto, Betts, Patterson & Mines, Seattle, WA, for petitioner-appellant.
Paul D. Weisser, and John M. Jones, Asst. Attys. Gen., Olympia, WA, for respondents-appellees.
Before HUG, POOLE, and HALL, Circuit Judges.
[OPINION BY CYNTHIA HOLCOMB HALL, Circuit Judge: type=majority]
CYNTHIA HOLCOMB HALL, Circuit Judge:
Charles Campbell appeals from the district court’s dismissal of his third petition for federal habeas relief from his state conviction of three counts of aggravated first degree murder and sentence to death. The district court had jurisdiction to consider the petition under 28 U.S.C. §§ 2241(a) and 2254, and this Court has jurisdiction over Campbell’s appeal under 28 U.S.C. §§ 1291 and 2253. We affirm.
I
Procedural Background
The facts of this case are set out in State v. Campbell, 103 Wash.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985), and Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). Campbell’s 1982 conviction on three counts of aggravated first degree murder and his sentence to death became final on April 29, 1985. Thereafter, Campbell sought state postconviction relief by motion for stay of execution. The state court, treating it as a habeas petition, denied the motion one week before Campbell’s scheduled execution. In July 1985, he began his first round of federal habeas corpus proceedings. This first petition raised 61 claims, but since 40 had not been raised in state court as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), Campbell amended the petition to present only the 21 exhausted claims. After an evi-dentiary hearing, the petition was denied on the merits; this Court affirmed the denial in 1987, and the Supreme Court denied certiorari in 1988. Campbell v. Kincheloe (Campbell I), 829 F.2d at 1467; 488 U.S. at 948, 109 S.Ct. at 380.
Campbell sought further state relief in 1989, which was denied. State v. Campbell, 112 Wash.2d 186, 770 P.2d 620 (1989). He then petitioned the federal court a second time for habeas corpus relief. The second petition was also denied, and Campbell’s appeal, initially denied in 1992, is pending rehearing en banc in this Court. Campbell v. Blodgett, 978 F.2d 1502 (9th Cir.1992) (Campbell II), vacated, Campbell v. Blodgett, 978 F.2d 1519 (9th Cir.1992) (Order Granting Rehearing en Banc). Pending the appeal from the denial of his second federal petition, Campbell filed a third petition for relief in state court. The Washington Supreme Court denied this petition on the merits. In re Campbell, No. 57406-5 (Wash. March 21, 1991). Campbell filed yet a third federal habeas petition in 1991, and Respondents moved to dismiss the petition as successive and abusive. The district court dismissed the third petition, concluding that all the claims raised therein were successive or an abuse of the writ. The court also ruled that at least two of the claims failed on the merits. Campbell v. Blodgett, No. C91-1420C (W.D.Wash. March 9, 1992). The district court granted Campbell a certificate of probable cause to appeal.
II
Successive and Abusive Claims
Campbell raised nine claims in his third petition, eight of which relate to jury instructions and the prosecutor’s remarks during Campbell’s sentencing proceeding. The ninth alleges a denial of “meaningful appellate review.” Campbell asserts that these claims constitute previously unexhausted issues, now disposed of on the merits by the Washington Supreme Court. Respondents argue that in one form or another, all of Campbell’s claims either have been previously heard and rejected, or could and should have been raised in prior petitions.
The district court correctly identified the appropriate standard governing the resolution of the question whether the claims were successive and an abuse of the writ. A claim is successive if it was raised in an earlier petition, or if it fails to raise a ground for relief that is new or different than a claim raised in an earlier petition and previously determined on the merits. See 28 U.S.C. §§ 2244(b), 2254 foil. Rule 9 (1988). A “ground” is “sufficient legal basis for granting the relief sought;” a different factual basis or argument asserted to support the same legal theory advanced previously does not constitute a new ground for relief and is successive. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077-78, 10 L.Ed.2d 148 (1963). Claims that are not successive may nevertheless be an abuse of the writ. As explained in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), a subsequent habeas petition which raises new grounds need not be considered if the petitioner has, through deliberate abandonment or inexcusable neglect, abused the writ. See id. 499 U.S. -, 111 S.Ct. at 1466-70.
When a district court denies consideration of the merits of a petition on the ground that it is abusive or successive, we review for abuse of discretion. Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). A court abuses its discretion when it bases its decision on an erroneous legal conclusion or on a clearly erroneous finding of fact. Id.
Campbell agrees that the district court selected the appropriate legal standard, but argues that the court erred in rejecting these as successive claims and abuses of the writ. Campbell’s argument that the district court erroneously determined his claims to be successive and abusive rests on two contentions: (a) after the state reached the merits of his claims, the district court was bound to consider their merits, and (b) the conditions permitting denial without consideration of the merits, set forth in 28 U.S.C. § 2244(b), were not met. We conclude that the district court did not abuse its discretion in either respect.
A
We reject Campbell’s argument that the district court should have reached the merits of Campbell’s claims simply because the Washington Supreme Court found “good cause” to do so. First, nothing in the state court’s order intimates a view that the merits of the claims present good cause for review. Quite to the contrary, the Washington Supreme Court implied that Campbell’s claims were in fact successive and abusive. It reached the merits nevertheless under its “good cause” exception for doing so. In re Campbell, No. 57406-5 at 2 (Wash. May 15, 1991) (Order Denying Reconsideration).
Second, the determination to reach the merits was made for reasons specific to the state proceedings that lack parallel significance in the federal courts. In stating that the “unique procedural history of this case” qualified as “good cause” to reach the merits of Campbell’s claims, the court was referring to the novelty of the state’s posteonviction proceedings for defendants facing execution.
Mr. Campbell was the first capital defendant prosecuted under RCW 10.95 to file postconviction pleadings. When he initiated that process in 1985, procedures had not yet been developed to deal with the unique aspects of such cases_ [Campbell] has challenged the fairness of the 1985 proceeding.... [W]e considered the merits of all of his present claims in order to put to rest his complaints about that earlier proceeding.
Id. at 2.
By contrast, Campbell is not the first capital defendant to seek postconviction relief in the federal courts, and the procedures for dealing with such cases are well established. Campbell has fully utilized these procedures, and has received the most comprehensive review of his claims to which he is entitled. We need not reach the merits to assure Campbell, and ourselves, that his claims have been fully considered. Indeed, upon determining that claims raised in a habeas petition are successive or abusive, we may not do so; respect for the finality of convictions, and the significant costs of federal habeas review, forbid it.
[A] court may not reach the merits of: (a) successive claims which raise grounds identical to grounds heard and decided on the merits in a previous petition; (b) new claims, not previously raised which constitute an abuse of the writ; or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims.
Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992) (citations omitted). Campbell’s claims are not rendered less successive in federal court, or less an abuse of the power of the federal writ of habeas corpus, by the state court’s view of its own postconviction proceedings. In other words, what constitutes “good cause” to review successive and abusive claims—in the federal idiom, cause and prejudice—is a matter of federal law.
Which leads to the final point: The district court was not required by any principles of comity and federalism to defer to the judgment of the Washington Supreme Court that its treatment of Campbell’s previous state filings for posteonvietion relief constituted “good cause” to review the claims on the merits. Counsel’s arguments regarding procedural bars and deferential federal review of state determinations miss the mark. The state court’s determination to reach the merits may, like the lifting of a procedural bar, permit a federal court to do the same, see Ylst v. Nunnemaker, — U.S. -, -, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991), but it most certainly does not compel it. We conclude that the district court did not abuse its discretion on that ground.
B
We also reject Campbell’s assertion that the factors permitting a court to dismiss a habeas petition under 28 U.S.C. § 2244(b) are not met. Assuming, arguendo, that the “facts and circumstances which comprise the unique procedural history of Mr. Campbell’s case have never been adjudicated,” these facts are not the ground upon which the application for relief is predicated. They are offered to induce the court to consider the grounds alleged for relief. That such facts have not been adjudicated does not preclude the application of section 2244(b). The district court found that the grounds on which the application is predicated—the jury instructions and prosecutor’s argument—were previously adjudicated. As explained more fully below, with the exception of the claim regarding appellate review, this determination was not an abuse of discretion.
In sum, we conclude that the district court did not abuse its discretion in dismissing Campbell’s third petition as successive and abusive, rather than considering its merits.
Ill
The Jury Instructions
A
Campbell challenges Jury Instruction No. 5 in the penalty phase, which instructed the jury that it must find beyond a reasonable doubt that there wére not “sufficient mitigating circumstances to merit leniency” (emphasis added). He claims that by repeatedly phrasing the instruction as to mitigating evidence in the plural, the instruction prohibited the jury from giving effect to “one mitigating circumstance, no matter how persuasive,” in violation of Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Pet. for Writ at 31-32.
The district court found this claim successive, as Campbell raised three claims regarding these provisions of Washington’s capital sentencing statute in his first petition and three similar claims in his second petition. It also found that if the claim could somehow be viewed as new, it was an abuse of the writ. We agree in both respects.
Campbell argues that “the present contention that his jury was improperly instructed presents a new and different ground from his previous challenge to the validity of the Washington statute.” Brief for Pet’r at 43. The jury instructions in this case were taken from the statute verbatim, see Rev.Code. Wash. § 10.95 (1990), and Campbell has already challenged the statute in two prior petitions. He has argued that the statute and the instructions worded in its language: (1) fail to adequately guide jury discretion; (2) create a mandatory presumption in favor of the death penalty; (3) fail to provide a reliable standard for imposition of the death penalty; and (4) limit the factors the jury could consider in mitigation. This latest claim is almost an exact repetition of the last, except that Campbell now characterizes the limitation imposed as one of quantity, rather than quality.
The grounds for relief, or legal basis for granting the petition, underlying all of these claims are the same: the constitutional requirements (1) that capital punishment not be imposed in an arbitrary and capricious manner, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and (2) of individualized sentencing in capital cases, Lockett v. Ohio, 438 U.S. at 604-05, 98 S.Ct. at 2965; Sumner v. Shuman, 483 U.S. at 78, 107 S.Ct. at 2723. A petitioner may not create a different ground merely by alleging different facts, asserting different legal theories, or couching his argument in different language. Sanders v. United States, 373 U.S. at 16, 83 S.Ct. at 1077-78. Since both grounds have been raised several times and have been ruled upon on the merits, the district court did not abuse its discretion in refusing to permit Campbell to relitigate them. Moreover, his argument is purely legal, and was available at the time both the first and second petitions were filed. The bringing of these claims, all directed essentially at the same statute upon the same grounds, in this piecemeal fashion is an abuse of the writ that federal courts must not tolerate.
B
Campbell challenges Jury Instruction No. 1 of the penalty phase, which instructed the jurors not to permit prejudice to influence them. It omitted mention of sympathy, which was included in the same instruction during the guilt phase, thereby arguably permitting the jurors to be influenced by sympathy. Campbell argues that the jury should not be permitted to consider sympathy even for the defendant, as its decision must be “based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (Opinion of Stevens, J.). This argument attempts to cast the claim as a challenge to the facially neutral instruction, masking the underlying claim raised in his brief — that, as applied in his case, the instruction permitted the jury to be influenced by sympathy for the victims, rather than for him. This argument the district court found successive, having been raised in Campbell’s first petition.
Campbell argues that “[permitting the jury to base its decision on sympathy and emotion violates ... the requirement that the sentencer’s discretion be ‘directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’ ” Brief for Pet’r at 48 (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932-33, 49 L.Ed.2d 859 (1976) (opinion of Stewart, J.)). His argument illustrates that this claim rehashes various of Campbell’s attacks on the jury instructions’ failure to limit sentencing discretion. As demonstrated above, such a claim is successive. Campbell’s first petition expressly claimed a failure to adequately guide jury discretion.
Furthermore, the underlying ground for relief — that the jury was improperly influenced by emotion, in violation of due process — was fully considered and rejected in Campbell’s first petition, by means of his attack on the prosecutor’s remarks. See Campbell v. Kincheloe, No. C85-1352 (W.D.Wash. Jan. 21 & Feb. 12, 1986), aff'd, 829 F.2d 1453, 1457-61 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). Although Campbell now alleges a different source of prejudice — the trial court’s instruction, rather than the prosecutor’s remarks — the complaint is the same. It presents no new ground for relief.
C
Campbell next complains that the jury was instructed in the statutory language of section 10.95.070 that it could “consider any relevant factors” and was not given the limiting instruction mandated by State v. Bartholomew, 98 Wash.2d 173, 654 P.2d 1170 (1982), vacated, 463 U.S. 1203, 103 S.Ct. 3530, 77 L.Ed.2d 1383 (1983), adhered to on remand, 101 Wash.2d 631, 683 P.2d 1079 (1984), that such consideration was limited to relevant mitigating factors. Absent the limiting instruction, he argues that the instruction was unconstitutionally vague and failed to adequately guide the jury’s determination. He also complains that the jury was not instructed to consider his character, the record, or the circumstances of the offense as mitigating circumstances. The district court found both claims successive, having been raised in both the first and second petitions.
On appeal, counsel attempts to recharac-terize the complaints as a claim that the jury instructions “imposed a barrier to the consideration of the range of permissible mitigating evidence.” Brief for Pet’r at 45. Campbell’s first petition argued that the instructions failed to provide adequate standards for channeling the jury’s discretion. His second petition claimed that the instructions limited the factors the jury could consider in mitigation. We agree with the district court that either articulation of the complaint raises the same grounds for relief as the two preceding petitions. The claim is successive.
IV
The Prosecutor’s Remarks
During penalty phase arguments, while arguing to the jury that Campbell was not suffering from any mental disease or defect, the prosecutor remarked on the jury’s observations of Campbell during the proceedings. Campbell argues that the prosecutor’s argument was improper because in drawing attention to his courtroom demeanor, it encouraged the jury to consider his failure to testify and his ability to represent himself at trial. He contends that the jury impermissibly imposed the death penalty on the basis of this constitutionally-protected behavior. Campbell also claims that the prosecutor’s assertions of uncontradicted evidence in the record impermissibly commented upon his right to remain silent.
The district court determined that Campbell’s brief in support of his first petition attacked the trial court’s failure to instruct the jury that it could not consider his failure to testify, but not the prosecutor’s remarks in that respect. Because the argument was available to him earlier, the district court concluded that the claims were an abuse of the writ. It also concluded that because the claims raise “purely legal arguments, Mr. Campbell cannot expect to establish cause for his failure to raise them before.” Campbell v. Blodgett, No. C91-1420C, at 10 (W.D.Wash. March 9, 1992). Nevertheless, the district court went on to address the claims’ merits.
At the time of Campbell’s earlier petitions, this Circuit would not find a subsequent ha-beas petition abusive where it presented a new claim that had been deliberately withheld from an earlier petition in a good faith belief it would have been barred as unex-hausted. Such a claim could be brought in a later federal habeas petition after exhausting state remedies. Neuschafer v. Whitley, 860 F.2d 1470, 1475-76 (9th Cir.1988) (citing Tannehill v. Fitzharris, 451 F.2d 1822, 1323 (9th Cir.1971)), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). McCleskey v. Zant makes clear that this result does not, however, follow automatically. See 499 U.S. at-, 111 S.Ct. at 1468. To justify this costly litigation strategy, be it deliberate choice, procedurally-constrained decision, or neglect, a petitioner must show cause for the omission and prejudice therefrom. Id. 499 U.S. -, 111 S.Ct. at 1470.
We assume without deciding that Campbell could show cause and prejudice for his failure to raise these claims in his first federal habeas petition. That petition was filed under circumstances similar to those of Neuschafer: (1) once his conviction became final, Campbell acted expeditiously to seek state postconviction relief; (2) the Washington Supreme Court refused to stay imposition of Campbell’s death sentence and refused to grant his newly-appointed counsel sufficient time to review the record to identify and exhaust all of his federal constitutional claims; and (3) Campbell was scheduled to be executed within several days. Cf. 860 F.2d at 1478. New counsel appointed June 25 filed the first petition on the heels of the state court’s denial of postconviction relief on July 18, facing an execution date of July 25.
Campbell offers no persuasive explanation, however, as to why this claim was not presented in his second petition. This petition was filed under circumstances more akin to those of Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984) (per cu-riam). In that case, the petitioner allowed nearly two years to elapse between the affir-mance of his conviction and the filing of his first motion for postconviction relief in the state courts. Id. at 206 n. 4,104 S.Ct. at 965 n. 4. The Court rejected as meritless the argument that he could not have been expected to present the new claims dismissed as abusive in his earlier petition because his counsel “was appointed when execution was imminent and therefore did not have time fully to familiarize himself with the case.” Id. Campbell’s stay of execution entered in July, 1985 was in place for more than three years pending final decision in Campbell I. During that time, Campbell was represented by counsel, who did not withdraw until the appeal was denied. Since that counsel had attempted to raise the claim on appeal of the first petition, Campbell cannot contend that he was unaware of the claim. Yet during that time, no action was taken to obtain further relief in state or federal court. After certiorari was denied and this court dissolved the stay of execution on January 25, 1989, the state court issued a death warrant scheduling Campbell’s execution for March 30,1989. Only then did Campbell commence his flurry of filings, filing a motion for a stay of execution, an appeal of the warrant, a motion for appointment of counsel, a second federal habeas petition, and a motion for a stay of execution by the federal court, all within the month of March.
“When a petitioner has ample time to seek collateral relief but inexplicably waits until the eve of execution to do so, he should not be heard to complain that time constraints prevented his counsel from identifying and exhausting all claims in time to include them in a single federal habeas petition.” Neuschafer, 860 F.2d at 1481 (Alarcon, J., concurring). We conclude that Campbell has not shown cause for his failure to raise these claims in his second petition. While the claims appear to be meritless in any case, we hold that they are an abuse of the writ and warrant no further review.
V
State Appellate Review
Campbell argues that he was denied meaningful appellate review of his sentence by the Washington Supreme Court, because it did not independently review the record for evidence that his death sentence was imposed through passion and prejudice, as required by state law. He adds, however, that the Washington court did not review the record for such a claim because defense counsel failed to present evidence or briefing to that effect. The district court concluded that this claim merely reargues the ineffective assistance of counsel claim previously raised in Campbell’s second petition, because any failure to consider evidence resulted from defense counsel’s omission. The propriety of this determination is not self-evident.
The Washington death penalty-statute requires the Washington Supreme Court to review each death sentence imposed to determine “whether the sentence of death was brought about through passion or prejudice.” Wash.Rev.Code §§ 10.95.100, .130(2)(c) (1991); State v. Dodd, 120 Wash.2d 1, 838 P.2d 86, 92-93 (1992). The statute provides that sentence review shall be consolidated with any appeal, and that counsel “may” submit briefs and oral argument. Wash.Rev.Code § 10.95.130(1) (1991). This suggests that the court’s duty to review is indeed independent of any submission by counsel. Cf. Dodd, 838 P.2d at 100 (statutory sentence review is mandatory and may not be waived). In affirming Campbell’s conviction and sentence, the sum total of the state court’s discussion of its inquiry, analysis and finding pursuant to section 10.95.130(2)(c) was as follows:
Third, no evidence was presented to support the proposition that [Campbell’s] sentence was brought about through passion or prejudice. The selection of a jury from Spokane significantly lessened the local fervor.
State v. Campbell, 103 Wash.2d 1, 691 P.2d 929, 946 (1984) (emphasis added). Campbell claims that although the statute mandates an “independent” review, the court’s statement reveals that it was looking to counsel to present evidence. Furthermore, the court’s opinion implied that the only source of such prejudice was eliminated by the change of venue for the jury venire. This demonstrates, according to Campbell, that the court relied on an irrelevant factor in making its determination, because “local fervor” prior to jury selection is irrelevant to passion and prejudice arising from the manner in which evidence, argument, and instruction were presented during the proceeding. These claims challenge the court’s actions, not defense counsel’s. We conclude that the district court erred in characterizing this claim of inadequate appellate review as one of ineffective assistance of counsel. The district court therefore abused its discretion in denying the claim as successive on that basis.
It is not absolutely clear that Campbell has presented this precise claim to the state court for adjudication. In his third petition to the state court for relief, Campbell argued that his sentence had not received meaningful appellate review for proportionality; he did not allege failure to review for evidence of passion and prejudice. The Washington Supreme Court, however, ruled on the broader ground underlying his claim: whether the statutory review he received was meaningless. Accordingly, we consider this claim exhausted.
Nevertheless, it affords no basis for granting Campbell’s petition. As the Supreme Court has stated time and again, federal habeas corpus relief does not lie for errors of state law. Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 476, 480, 116 L.Ed.2d 386 (1991); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984). Campbell’s complaint of an alleged “failure on the part of the Washington Supreme Court to fulfill its statutory mandate,” Petitioner’s Reply Brief at 17, is not cognizable in federal habeas proceedings.
Campbell seeks to avoid this rule by characterizing the Washington court’s action as a deprivation of a liberty interest protected by the Due Process Clause, relying upon Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). Hicks recognized that state laws which guarantee a criminal defendant procedural rights at sentencing, even if not themselves constitutionally required, may give rise to liberty interests protected against arbitrary deprivation by the Fourteenth Amendment’s Due Process Clause. 447 U.S. at 346, 100 S.Ct. at 2229-30; see Clemons v. Mississippi, 494 U.S. 738, 746-47, 110 S.Ct. 1441, 1447-48, 108 L.Ed.2d 725 (1990); Rust v. Hopkins, 984 F.2d 1486, 1493 (8th Cir.1993). We agree that sections 10.-95.100 and 10.95.130 of the Washington Code create for Campbell a liberty interest in having the Washington Supreme Court review and make particular findings before affirming his death sentence, whether or not he has submitted evidence or argument on those points. We do not understand Respondents to disagree. See supra at 521 n. 9. But there can be no claim here that Campbell suffered a “wholesale refusal to afford [him]” this procedural right. Petition for Rehearing at 11. It is clear that the Supreme Court conducted the mandated review and made the findings to which Campbell was entitled. See 691 P.2d at 945^6.
Campbell’s argument thus devolves into a complaint regarding the manner in which state law was applied: a claim that the court’s review was inadequately conducted. To the extent Campbell’s claim asserts that the review was so deficient he was effectively deprived of his right, we reject his claim for the reasons below. To the extent any error alleged is less egregious, we return to our initial proposition: it is not cognizable in federal habeas corpus.
Although there is little authority on this matter, we think Campbell is not entitled to more review than he received on the matter of whether his sentence was brought about by passion or prejudice. This results from two observations: state law does not appear to require an extensive review, and there is little to suggest the review reflected in the opinion was statutorily inadequate. We note first the obvious point that under the terms of the statute Campbell is entitled to mandatory appellate review only of the sentence, not the trial. Wash.Rev.Code § 10.-95.100 (1991). The court’s task in answering the statutory inquiries is not to “fully assess the evidence,” but rather to view the evidence in the light most favorable to the prosecution and to decide the issue as a matter of law. See State v. Rice, 110 Wash.2d 577, 757 P.2d 889, 914-15, 917 (1988).
The court’s independent review is guided by a special report required by statute containing particular information. See Wash. Rev.Code § 10.95.120 (1991). This report directs the court’s attention to specific factors relevant to jury passion or prejudice. Enumerated factors (a) through (f) suggest that the “prejudice” for which the Washington court is required to review the sentence is prejudice in the narrower sense of bias or discrimination, rather than the broader sense of procedural or evidentiary error affecting Campbell’s rights. There is no suggestion that race or sexual orientation were possible sources of prejudice toward Campbell. Factors (g) through (j) suggest that “passion” means publicity or evidence tending to inflame the sympathies of the jury. The court specifically addressed the issue of prejudicial publicity.
The court’s conclusion of its inquiry with the comment that “no evidence was presented to support the proposition” the sentence resulted from passion, with no discussion of the issue of prejudicial evidence, gives us pause. Standing alone, it could suggest the court did not consider whether Campbell’s death sentence resulted from jury passion simply because Campbell failed to raise this issue. In a case such as this, involving savage murders of sympathetic victims, the possibility always lurks that emotion provided an impermissible basis for jury decision. The statement does not stand alone, however, and must be viewed in the context of the court’s entire review.
The sentence review is not intended to replace a general appeal, see Wash.Rev.Code § 10.95.130(1) (1991); State v. Dodd, 838 P.2d at 100, and ordinarily the court will turn to its mandatory sentence review, as in Campbell’s case, after having reviewed the defendant’s assignments of error. By the time the court addresses the specific inquiry regarding passion and prejudice, it has already determined that (1) any claims raised by the defendant do not warrant reversal, (2) sufficient evidence supports the jury’s finding of insufficient mitigating circumstances to merit leniency, and (3) the death sentence is neither excessive nor disproportionate. Wash.Rev.Code §§ 10.95.130(2)(a), (b) (1991). In Campbell’s ease, the court had already determined that there was overwhelming evidence of Campbell’s guilt, a multitude of objective, specific aggravating factors warranting a death sentence, and insufficient mitigating factors to warrant leniency. These conclusions necessarily refute any contention that the sentence was brought about by passion or prejudice. Consequently, it is not troubling that the court’s opinion did not dwell on the statutory inquiry as to prejudice at length. State law does not appear to require the court to engage in a complete rehash of the analysis it has conducted to this point when it reaches the passion and prejudice inquiry. The amount of ink expended in disposing of an issue bears no necessary correlation with the degree of care lavished upon it in reaching that conclusion. Justice Utter’s dissent discussed at length the possibility that passion and prejudice affected Campbell’s sentence, further assurance that the court’s attention was directed to the issue. See 691 P.2d at 955-57.
In this context, we do not find the court’s comments noting no evidence was presented and addressing only the possible impact of community publicity indicative of a failure to conduct the requisite review. The court consistently addresses the passion and prejudice inquiry in summary fashion, see Dodd, 838 P.2d at 99; Rice, 757 P.2d at 917; Rupe, 743 P.2d at 230, and it is not for us to question the Washington Supreme Court’s interpretation of its statutory duty. Nor can we conclude that the court’s review was so deficient as to render the entire sentencing determination, which we have repeatedly upheld in the face of more focussed attacks, unconstitutional. We hold that if there were any shortcoming in the direct appellate review Campbell received as a matter of state law, which we doubt, it was not of constitutional magnitude.
VI
Cause and Prejudice
Campbell argues that the district court erred in dismissing his claims as successive and abusive without holding an evidentiary hearing. To avoid the bar to further federal review raised by an abusive claim, a habeas petitioner must show cause for his failure to raise the claim earlier and actual prejudice therefrom. McCleskey v. Zant, 499 U.S. at -, 111 S.Ct. at 1470. In the context of a successive claim, an inquiry into cause and prejudice would appear to be unnecessary, because a successive claim by definition has been raised before. The Supreme Court has said, however, that a petitioner may obtain review of a successive claim upon a showing of cause and prejudice. Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). To justify review of a successive claim, we must construe “cause” to also mean cause for bringing a petition that fails to present a new ground for relief. In other words, a petitioner must show cause for seeking review of the same claim twice—such as the discovery of new facts, or an intervening change in the law, that warrants reexamination of the same ground for relief raised in an earlier petition.
No evidentiary hearing is necessary if the district court determines as a matter of law that a petitioner cannot satisfy the standard. McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. The district court determined that Campbell could not show cause. As our decision demonstrates, we agree. The factual bases for his claims are events at trial that have been known to him from the outset; the legal bases are well-established legal principles. The district court did not err in foregoing an evidentiary hearing.
Where a petitioner cannot establish cause, we may nevertheless review successive or abusive claims where the ends of justice require an opportunity for the petitioner to relitigate claims previously decided against him. Kuhlmann v. Wilson, 477 U.S. 436, 444-45, 106 S.Ct. 2616, 2621-22, 91 L.Ed.2d 364 (1986). The “ends of justice” permit us to entertain successive or abusive claims only where a petitioner supplements his constitutional claims with a “colorable showing of factual innocence.” 477 U.S. at 454, 106 S.Ct. at 2627. Where a petitioner alleges error at a capital sentencing proceeding, rather than at the trial of the capital offense, he must show “by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty under [Washington] law.” Sawyer, — U.S. at -, 112 S.Ct. at 2523.
Neither Campbell’s claims of deficient jury instructions nor those of improper prosecutorial argument during the penalty phase bear on the question of his eligibility for capital punishment. Both claims go to the jury’s consideration of the existence or lack of sufficient mitigating circumstances to warrant a sentence of life imprisonment. Moreover, Campbell has expressly disclaimed any attempt to meet the “actual innocence” exception.
Conclusion
We find no abuse of discretion in the district court’s dismissal of Campbell’s claims regarding the jury instructions as successive and the prosecutor’s remarks as an abuse of the writ. We agree with the district court that “Mr. Campbell’s claims are nothing more than restatements of, and variations on, the constitutional arguments which have previously been examined at every level of available review. The interests of justice are not furthered by continuous reexamination of these issues.” Although the district court abused its discretion in dismissing the claim of inadequate appellate review as successive, we conclude that the claim is meritless.
AFFIRMED.
"[A] subsequent application for a writ of habe-as corpus ... need not be entertained ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ. and unless the court, justice or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly-asserted ground or otherwise abused the writ.” 28 U.S.C. § 2244(b) (1988).
Campbell challenged section 10.95.070 in his first petition; in his second, he unsuccessfully sought to attack that section again, and also section 10.95.060(4). His third petition points once again to section 10.95.060(4).
In January 1990, pending decision of the appeal from the denial of his second petition, Campbell sought to withdraw the three jury instruction/death penalty statute issues without prejudice to later relitigating them in federal court, so that he could resubmit them to the Washington Supreme Court. Pet’r Mot. to Withdraw from Submission Certain Issues on Appeal at 2, 3, Campbell v. Blodgett, 978 F.2d 1519 (9th Cir.1992). We denied the motion. Campbell v. Blodgett, 940 F.2d 549, 549 (9th Cir.1991) (Order). Those issues were presented in his third state petition and denied on the merits, and it is those same issues which he seeks to raise here, in a different guise. Campbell's attempt to withdraw the claims from the second petition so that he could relitigate them here after the state court revisited the issues is, in effect, an admission that the claims now presented are successive.
In his petition to the district court, Campbell also claimed that the prosecutor improperly commented on his future dangerousness and failed to notify him that the subject would be argued to the jury. The district court determined that these claims were successive, having both been raised and adjudicated in his first petition. Campbell has abandoned these claims on appeal.
McCleskey does not establish a new rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and therefore does apply to this habeas petition. Harris v. Vasquez, 949 F.2d 1497, 1512 (9th Cir.1991) (on denial of rehearing en banc), cert. denied, — U.S. -, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992).
Campbell's first petition challenged numerous aspects of the prosecutor's penalty phase argument, claiming that the prosecutor had improperly appealed to the jury’s passion and prejudice. On appeal from the denial of that petition, he attempted to add an argument that the prosecutor had improperly commented on his failure to testify, but we refused to consider the claim as it was raised for the first time on appeal and not exhausted. See 829 F.2d at 1455-56 n. 1.
We note, however, that these claims are not among the 40 identified but unexhausted claims initially presented in his first federal petition.
Campbell did seek appointment of counsel to litigate the unexhausted issues, but only after the appeal was denied and his pro se petition for certiorari was pending, more than three and one half years later.
The district court apparently adopted the state’s analysis of the claim in this respect. See Resp’t Brief on the Merits at 19-23, Campbell v. Blodgett, No. C91-1420C (W.D.Wash. March 9, 1992). The state obviously missed the thrust of Campbell's claim. It argued that appellate counsel’s assistance was not prejudicial, asserting ”[m]oreover, [the statute] requires the Washington Supreme Court to review the record of each capital case.... Thus, even if appellate counsel does not specifically raise such a claim, the court will nevertheless review the record for evidence that passion and prejudice played a role in the jury’s verdict.” Id. (emphasis added). The claim is that the court failed to do precisely that.
Section 10.95.130 also mandates review of the proportionality of a capital sentence. § 10.95.-130(2)(b). Campbell could not raise this claim here, however, as there is no federal right to proportionality review. Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 878-79, 79 L.Ed.2d 29 (1984).
As it has not been raised and adjudicated in Campbell's earlier petitions, the claim is not successive; nor is it abusive, as it was omitted in good faith because unexhausted.
It clearly was not constitutionally inadequate; assuming the Constitution may require "some form of meaningful appellate review,” we find the court’s review sufficient to fulfill its essential function of ensuring the "evenhanded, rational, and consistent imposition of death sentences under law.” Pulley v. Harris, 465 U.S. at 45, 49, 104 S.Ct. at 876-77, 878-79 (citing Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976)).
Section 10.95.120(6) requires the report to indicate: (a) Whether the race and/or ethnic origin of the defendant, victim, or any witness was an apparent factor at trial: (b) What percentage of the county population is the same race and/or ethnic origin of the defendant; (c) Whether members of the defendant's or victim's race and/or ethnic origin were represented on the jury; (d) Whether there was evidence that such members were systematically excluded from the jury; (e) Whether the sexual orientation of the defendant, victim, or any witness was a factor in the trial; (f) Whether any specific instruction was given to the jury to exclude race, ethnic origin, or sexual orientation as an issue; (g) Whether there was extensive publicity concerning the case in the community; (h) Whether the jury was instructed to disregard such publicity; (i) Whether the jury was instructed to avoid any influence of passion, prejudice, or any other arbitrary factor when considering its verdict or its findings in the special sentencing proceeding; (j) The nature of the evidence resulting in such instruction; and (k) General comments of the trial judge concerning the appropriateness of the sentence considering the crime, defendant, and other relevant factors. Wash.Rev.Code § 10.95.120(6) (1990).
"Cause” is generally meant to refer to cause for failure to comply with a state procedural rule, see Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977), or cause for failure to raise a claim in an earlier habeas petition, see McCleskey v. Zant, 499 U.S. at -, 111 S.Ct. at 1470.
Sawyer v. Whitley overrules the prior rule in this Circuit that to meet the "ends of justice" or "actual innocence” requirement, a petitioner need only show that "it is more probable than not that, but for constitutional error, the sentence of death would not have been imposed,” which showing may extend to mitigating factors as well. Deutscher v. Whitley, 946 F.2d 1443, 1446 (9th Cir.1991), vacated for reconsideration in light of Sawyer v. Whitley, - U.S. -, 113 S.Ct. 367, 121 L.Ed.2d 279 (1992). We need not consider whether Sawyer announces a new rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), as we conclude that Campbell fails to meet our Drior. more lenient standard as well.
Charles Rodman CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Superintendent of Washington State Penitentiary, Walla Walla, Washington; Kenneth Eikenberry, Attorney General of the State of Washington, Respondents-Appellees.
No. 92-37024.
United States Court of Appeals, Ninth Circuit.
Jan. 4, 1993.
As Amended Jan. 25, 1993.
See also 982 F.2d 1321.
Before: REINHARDT, HALL, and LEAVY, Circuit Judges.
I
Jurisdiction.
In opposition to Campbell’s motion in the district court, Respondents (hereinafter the State) argued that the district court lacked jurisdiction to consider the motion because the filing of the notice of appeal in the underlying case divested the district court of jurisdiction over all claims in this matter. The State does not renew this argument on appeal. Nevertheless, we must consider our own jurisdiction, which hinges on that of the district court.
Rule 6 of the Rules Governing Section 2254 Cases permits habeas petitioners to use the discovery procedures available under the Federal Rules of Civil Procedure if judicial leave is granted. 28 U.S.C. foil. § 2254 (1988). Rule 27(b) of the Federal Rules of Civil Procedure in turn permits litigants to use discovery procedures pending appeal if judicial leave is granted. Thus, Rule 27(b) creates an exception to the general principle that the filing of the appeal divests the trial court of all authority over a case. Rule 27(b) contemplates that a district court with existing subject matter jurisdiction retains sufficient jurisdiction of a case under appeal to issue an extraordinary discovery order pending that appeal. Accordingly, the district cpurt had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254. The denial or grant of a motion under Rule 27(b) is a final order. Crateo, Inc. v. Intermark, Inc., 536 F.2d 862, 870 (9th Cir.), cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976); Ash v. Cort, 512 F.2d 909, 912 (3d Cir.1975). We have jurisdiction under 28 U.S.C. § 1291.
II
Standard of Review
The availability of any discovery during a habeas proceeding is committed to the sound discretion of the district court. See 28 U.S.C. foil. § 2254 Rule 6 & adv. comm, note (1988). The availability of discovery pending appeal under Rule 27(b) is also a matter within the court’s discretion. Crateo, 536 F.2d at 870. We review the district court’s denial of a motion under Fed.R.Civ.Pro.Rule 27(b) for abuse of discretion, under which we will not reverse absent a definite and firm conviction that the district court has committed a clear error of judgment.
III
Merits
The district court denied Campbell’s motion to videotape the execution after finding that the evidentiary value of the proposed videotape was not sufficiently substantial to meet the standard imposed by Rule 27(b). Rule 27(b) permits a court to order discovery pending appeal if it finds that the perpetuation of evidence is “proper to avoid a failure or delay of justice” in the event of further proceedings in the district court. Fed.R.Civ.P. 27(b). The district court found that the evidentiary value of the tape was doubtful, while the infringement upon comity concerns and privacy interests was serious. Consequently, in the exercise of its discretion, it declined to order the State to permit Campbell to videotape Dodd’s execution. We find no abuse of discretion in the court’s determination.
A. Comity Concerns
The district court perceived serious questions of comity in the notion of forcing the State to contravene its established policy against recording executions and ordering it to allow a particular person to attend and record an execution. The dissent argues that the district court abused its discretion because comity is not an appropriate concern in this context; federal habeas corpus relief by its very nature impinges heavily on state interests. The dissent thus discounts this value as of no importance. To the contrary, it is precisely because federal habeas corpus does infringe so greatly on state comity interests that any expansion or extension of those proceedings requires strong justification indeed.
The dissent poses the issue as whether the state’s bar on attendance at executions may be permitted to interfere with a federal constitutional right. This is incorrect in at least two respects. First, it is the act of recording the execution and the fact of the recording’s existence, and not mere attendance by an additional witness, that is at issue. Second, and more importantly, there simply is no federal right, constitutional or otherwise, to discovery in habeas proceedings as a general matter. See Harris v. Nelson, 394 U.S. 286, 296, 89 S.Ct. 1082, 1089, 22 L.Ed.2d 281 (1969) (adoption of federal rules of civil procedure was not intended to make discovery provisions of rules available in habeas corpus proceedings).
Contrary to the dissent’s assertion, Campbell is not “only asking that one additional person be permitted to attend.” Campbell asks that we order the State to open to his agent the most serious of all state legal proceedings against its citizens, the taking of a human life. He asks that we order the State to permit him to create a permanent audiovisual record of the event, to engage in conduct during the event necessary to allow the creation of the video and audiotapes, and to make whatever technical arrangements (placement of cameras, microphones, etc.) necessary to do the job in a meaningful way. In this situation comity is not only an appropriate concern, it is a highly weighty one. Had there been a greater showing of the relevance of the evidence sought, perhaps comity alone would not be sufficient reason to deny the motion, but that is not the case, as discussed in part C. We do not find the court’s concern with state interests to be an abuse of discretion.
B. Privacy Interests
The district court also found that Campbell’s request affected the condemned prisoner Dodd’s privacy rights, because there could be no guarantee against the intentional or inadvertent release of the recording to the public. Unlike the condemned prisoner in the Harris execution, on which Campbell and the dissent so heavily rely, Dodd has not consented to the videotaping of his execution. See Fierro v. Gomez, No. 0-92-1482 MHP (N.D.Cal. April 21, 1992) (Order granting motion to videotape execution of Robert Alton Harris). The absence of Dodd’s consent to the recording of his execution puts this case in a different realm.
The dissent responds that the incremental infringement on Dodd’s privacy is infinitesimal because of the number of witnesses already permitted to view the execution. We reject this assertion. Mere presence at and observation of an event is an intrusion of a different magnitude than the creation of a permanent audiovisual record of that event. Regardless how we shape an order and regardless what contempt sanctions we may threaten, we simply cannot guarantee that no duplicate will be made or that this tape will not appear on CNN someday. We note also that Dodd’s privacy and dignity during the actual execution may be affected by the placement of cameras and microphones. We find no abuse of discretion in the district court’s consideration of this factor.
C. Relevance
Finally, the district court found that the evidentiary value of the recording was dubious and that it was unnecessary for an informed ruling on whether hanging constitutes cruel and unusual punishment in violation of the Eighth Amendment. The dissent argues that the evidence need only be relevant, not necessary. This misstates the law. Campbell must demonstrate “good cause” to merit any discovery whatsoever under Rule 6 of the rules governing habeas petitions. See 28 U.S.C. foil. § 2254 Rule 6 (1988). To merit discovery in a case that is already pending on appeal, he must demonstrate that this discovery is “proper to avoid a failure or delay of justice.” Fed. R.Civ.Pro. 27(b). In other words, Campbell must show that the loss of this evidence could result in a failure of justice.
Neither Campbell nor the dissent explain what it is that a videotape of the hanging would show at an evidentiary hearing, if one were ordered. There was evidence in the record to show that no relevant evidence would be obtained by videotaping the execution. Campbell fails to identify what it is that would be learned by watching Dodd’s execution or how it would shed any light on whether hanging violates the Eighth Amendment. Both Campbell and the dissent offer numerous conclusory statements about irreplaceable evidence and best evidence, but evidence of what?
So far as we can determine, the relevant issues in Campbell’s claim of cruel and unusual punishment are: 1) how much time elapses before unconsciousness; 2) how much time elapses before death; 3) cause of death or unconsciousness; and 4) sensations of pain and suffering before unconsciousness. At best, a videotape of the execution could shed light on the duration issues, but so too could a witness or timing device. Campbell’s expert disputes the reliability of witness testimony, but with respect to this one objectively identifiable and measurable element, we think memory distortions should not be a material problem. A videotape could not shed light on the third issue, nor on the fourth. The proposed videotape would not show the impact of the physical instrument (the rope) as it affects the body, because of the hood worn by the condemned extending over the face, neck and chest; nor would it show the location of the physical injuries, as they are either internal or hidden behind the hood. Any conclusions about pain and suffering that could be drawn from the condition of the visible body during hanging can be drawn as well or better from examination of the remains without the execution hood post mortem. We are left to conclude that Campbell desires the evidence for its sheer emotional impact.
Accordingly, we find no abuse of discretion in the district court’s conclusion that Campbell failed to show this evidence is sufficiently important to compel the district court to exercise its discretion in only one way. While the lack of probative value would alone be sufficient to sustain the ruling, in combination with the district court’s other concerns we can find no abuse of discretion.
AFFIRMED.
[OPINION BY REINHARDT, Circuit Judge, type=dissent]
REINHARDT, Circuit Judge,
dissenting:
I dissent. I would reverse the district court order denying Charles Rodham Campbell leave to videotape the State of Washington’s hanging of Westley Allan Dodd.
Dodd’s hanging will be the first official hanging in this country since 1963. Campbell too has been sentenced to death by hanging by the State of Washington. He seeks to prove that hanging is cruel and unusual in violation of the eighth amendment. In approximately three weeks, our en banc court will consider the question whether he is entitled to an evidentiary hearing on his eighth amendment claim. Our affirmance of the district court's order deprives Campbell of the best evidence that he could present at such a hearing. I would grant Campbell permission to videotape the execution, but would require that the tape be immediately deposited in the district court, to be used only in the event that Campbell is awarded an evidentiary hearing on his eighth amendment claim. I would also require that the camera be focused exclusively on Dodd and that the faces and bodies of prison officials not be taped.
In my opinion, the district court’s order denying Campbell the opportunity to preserve evidence crucial to a fair adjudication of his eighth amendment claim constitutes a gross abuse of discretion and a violation of Campbell’s right to due process of law. The reasons given by the district judge for banning the taping are wholly without merit. In my opinion, there is not a colorable argument among them.
The district judge reached his conclusion by considering three factors: the state’s comity interest in enforcing its policy regarding attendance at and recording of executions, Dodd’s privacy interests, and the relevance of the evidence which Campbell seeks to preserve. I will discuss these factors in turn.
I. Comity.
Ordinary comity interests are of less concern where a defendant’s constitutional rights are at stake. All habeas corpus proceedings infringe at least to some degree on state comity interests, and writs of habeas corpus infringe on those interests to a substantial degree. To maximize comity and minimize federal court intrusion into the state criminal justice system, we have adopted certain procedural rules, including the requirement that defendants must exhaust their constitutional claims in state court and that we must defer to certain types of findings by state courts. No suggestion has been made that Campbell’s motion to record Dodd’s hanging implicates or violates any of these rules or procedural requirements.
There is no true comity issue here. The question instead is whether a state rule governing attendance at and recording of executions can serve as a bar to a petitioner’s attempt to obtain critical evidence in support of his constitutional claim. When a state rule is alleged to interfere with a federal constitutional right, comity is not an appropriate concern. The state rule either unlawfully burdens the federal right or it doesn’t. — The district court’s reliance on comity concerns rests on an erroneous understanding of the law and therefore constitutes an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990).
Moreover, the district court clearly erred in holding that the state’s interest in enforcing its policy regarding attendance at and recording of executions (either standing alone or when coupled with Dodd’s alleged privacy interest) outweighs Campbell’s interest in preserving relevant evidence. The evidence which Campbell seeks to preserve is obviously relevant to his eighth amendment challenge to hanging, while the infringement on the state policy interests is minimal at most. Under these circumstances, the state’s interest in its policy must give way, as a matter of law, to the defendant’s interest in enforcing his constitutional rights.
Initially, the district court erred with respect to its assessment of the nature and magnitude of the state’s interest. The state’s interest in denying access to Dodd’s execution is expressed only in Department of Corrections guidelines which the state itself does not follow. The guidelines provide that no one other than staff, the prosecuting attorney, the sentencing judge, and up to twelve media representatives may attend an execution. See WSP410.500 at 7. In Dodd’s case, however, the state is permitting the family of Dodd’s victims to attend his hanging. Apparently, the state is willing to ignore its guidelines for its own purposes but not for the purposes of others, no matter how legitimate their cause. Specifically the state is unwilling to permit an exception to its rules when doing so would serve to preserve evidence important to the fair resolution of a vital constitutional question affecting a number of present and future defendants, including persons it intends to hang.
Campbell is only asking that one additional person be permitted to attend the execution. The burden imposed by permitting this additional person to attend would be minimal even if the state consistently adhered to its policy of admitting only 12 media representatives in addition to the judge and prosecutor, but it is non-existent in light of the state’s decision to ignore its policy and admit the victims’ family members.
The guidelines also prohibit the recording or filming of executions. The only justification asserted for this prohibition is the need to conceal the identity of those conducting the execution. See Affidavit of Tana Wood. This is a valid state interest, but it is not in conflict with the order used recently in connection with the recording of the Harris execution and proposed by Campbell for use here. Under the proposed order, the taping of prison staff would be prohibited, the camera would be focused exclusively on Dodd, and the videotape would be immediately deposited with the court so that any accidental taping of prison staff could be promptly cured. Neither the state nor the district court explains why these safeguards are not sufficient to vindicate the state’s interest in concealing the identity of its employees. The state is thus left with no articulated basis for refusing to let Campbell preserve the events of the hanging for use as evidence.
In short, the comity argument has no merit whatsoever.
II. Dodd’s Privacy Interests.
The district judge noted simply that “the proposal to tape Mr. Dodd’s execution impacts Mr. Dodd’s privacy rights.” In reaching this rather blunt conclusion, the district judge failed to consider the safeguards which Campbell proposed in order to accommodate whatever privacy interests Dodd may have. I conclude that in this case the privacy factor cannot as a matter of law outweigh Campbell’s interest in preserving the evidence. There are several points worth mentioning here, each independent of the other, and each sufficient to refute the district court’s reliance on Dodd’s privacy rights:
1. The infringement on Dodd’s privacy that would result from the proposed order is infinitesimal. Campbell asks only that the events of the hanging be preserved on videotape and deposited with the court, to be used only with the court’s permission in the event that an evidentiary hearing is ordered on his eighth amendment challenge to hanging. The state has already given permission for a substantial number of persons — media representatives, the prosecutor, the sentencing judge, and the victims’ families — to witness the execution and to describe the event graphically in the press and on television. Dodd’s privacy is already invaded to a substantial extent by that act of the state. If Campbell's proposed order is granted, the number of persons who will ultimately see the execution will increase only by the number of persons present at a federal court hearing, plus the cameraman. Under these circumstances, the minimal incremental infringement on Dodd’s privacy is far outweighed by the importance of the evidence that Campbell seeks to preserve. In fact, the district judge apparently recognized this point, since he appears to have based his privacy analysis exclusively on the theory that there is no way to insure that the tape would not be made public.
2.The only privacy concern expressly relied on by the district court is clearly unfounded. As noted, the sole basis for that concern appears to be the court’s fear that the proposed order would be violated — that the tape would become available to the world at large. There is no rational factual basis for this concern. The United States Courts are capable of assuming jurisdiction over a tape, holding it, and insuring that it is not used unlawfully. It was clearly erroneous for the court to assume as the basis for its ruling that courts cannot or will not perform this function in accordance with their own orders. Thus, the order clearly constituted an abuse of discretion.
The majority suggests that there can be no “guarantee” that court orders will not be violated, and speculates that the tape may appear on CNN. There is no guarantee of anything in life, I suppose. But that is hardly a premise on which to ground a serious decision affecting constitutional rights. We do not ordinarily base an important legal conclusion on a fanciful parade of horribles of the type that we are all capable of conjuring up. The majority is wrong to do so here.
3. It is both ironic and improper that the state raises Dodd’s privacy interests before this court: in prior proceedings, the state has argued, and courts have ruled, that no one but Dodd himself may assert any of his rights, including his right to appeal his conviction or his interest in being free from cruel and unusual punishment. Clearly, then, this must be the case with respect to Dodd’s privacy rights as well. See, e.g., Starrels v. CIR, 304 F.2d 574 (9th Cir.1962) (right of privacy is personal and cannot ordinarily be asserted by family members). Thus, it is highly questionable that Dodd’s privacy rights may be placed at issue here or may be considered at all in this proceeding.
4. To the extent that Dodd does have a minimal interest in preventing an incremental increase in the number of witnesses to his execution, and to the extent that his interest is cognizable in this proceeding, the appropriate course for the district court to have followed would have been to order Campbell’s motion served on Dodd so that he would have had an opportunity to object. While ordering such service might have been desirable, we do not now have sufficient time to correct any error the district court may have made in that respect. The district court having failed to order service on Dodd, the greater harm now would be to deprive Campbell of his right to a full and fair hearing on his constitutional claim. In any event, I note that there is no indication that Dodd objects to Campbell’s request and there is no reason to assume that someone who has waived all of his interests (save his statutorily mandated appeal to the intermediate state court) would wish to assert his privacy rights. In capital punishment proceedings, both direct and ancillary, interested persons fax communications to the court up until the moment of execution. Dodd has not been heard from in this case up to this moment — less than eight hours before his execution.
5. I want to emphasize that my conclusion is not based primarily on the incremental increase aspect of the privacy argument. A tape that is used only in a court proceeding constitutes a minimal privacy invasion. The district court did not disagree with this point. It based its privacy argument solely on the clearly erroneous factual assumption that the courts could not ensure the security of the tape. Thus, if the letter filed with the court by Campbell’s counsel this morning is accurate and the state intends to hang a curtain between Dodd and the witnesses preventing them from seeing the actual hanging, my conclusion regarding the privacy issue would be unchanged. In any event, the state has advised us that Campbell’s counsel is incorrect and that the witnesses will be able to see the actual execution.
For all these reasons, I conclude that the court clearly erred in denying the motion on the basis of Dodd’s privacy interests.
III. Relevance.
Here, the district court committed perhaps its clearest legal error. The court found that the evidentiary value of the proposed recording was “dubious at best” because “a recording is not necessary for an informed ruling on the issue of whether execution by hanging offends the constitutional prohibition against cruel and unusual punishment.” (emphasis added). The issue is relevance, not necessity. If parties could resist a request to preserve relevant evidence wherever it would be possible to make some type of informed ruling without the evidence in question, the right to preserve evidence would be narrowed almost out of existence. This is clearly wrong.
The district court also committed clear error in assessing the importance of the proposed recording. No one has been lawfully hanged in this country since 1963. A videotape of a state-conducted hanging is obviously the best possible evidence of whether or not hanging constitutes cruel and unusual punishment. Consider the videotape of the Rodney King beating. No one could seriously suggest that that tape was of “dubious” evidentiary value. The tape was played over and over at the trial, at various speeds, and gave the jurors a far more accurate picture of the event than was given by the conflicting stories offered by various witnesses. (Whether the jury rendered the correct verdict is a different matter. At least the jurors had the best evidence before them.)
Witnesses to a violent and traumatic event like a vicious beating or a hanging frequently give dramatically different accounts of what occurred. Moreover, witness testimony regarding an actual hanging would probably make a far different impression on a factfinder than would such testimony in combination with a videotape of the actual event. Witnesses principally communicate their impressions with words — imperfect tools that conjure up vastly different images in the minds of different listeners. Videotape is not perfect, but used in combination with testimony, it can dramatically diminish the margin for miscommunication and misperception. Moreover, it can and does serve as a basis for cross-examining witnesses and refreshing their memories. When confronted with a record of the actual event, witnesses often recall matters far more accurately than otherwise.
The district judge ignored all of these considerations, as well as other arguments as to why witness testimony is no substitute for videotape in this case. For example, it is not clear that there will be any suitable witnesses. Among the potential witnesses are the victims’ family members, the prosecutor, the judge, and the prison staff charged with conducting the execution. For obvious reasons, Campbell should not be compelled to rely on their descriptions of the events. The only other witnesses will be media representatives, who may or may not be willing to testify as a matter of journalistic policy. Moreover, Campbell wishes to present the testimony of medical experts as to the effects of hanging. There is no basis in the record for believing that lay witnesses untrained in medicine will be able to observe and understand the relevant details that a physician could note from witnessing a videotape. Campbell’s medical experts should be permitted a fair opportunity to testify based on the best evidence that can be made available as to what occurs during an actual execution. The testimony of the state experts that events such as body-jerking can be misinterpreted supports rather than undermines Campbell’s argument that a taped record which can be carefully scrutinized, frame by frame, by experts, provides the best (if not the only reliable) evidence.
Because both of the reasons given by the district court for denying the order (comity and Dodd’s privacy rights) were based on wholly erroneous legal principles, reversal is required if the proposed videotape has any probative value at all. In this case, not only would the tape have probative value, it would constitute the best and most persuasive evidence on the factual question of what transpires when a person is hanged— the factual question on which Campbell’s constitutional claim of cruel and unusual punishment hinges. Thus, our affirmance today deprives Campbell finally and irrevocably of evidence crucial to the determination of his constitutional claim.
Any doubt that the relevance of a tape of the hanging would be substantial should be dispelled by considering what would happen if the state already had a videotape of Dodd’s hanging in its possession. If Campbell subpoenaed an existing tape for use at an evidentiary hearing, and the state resisted on the ground that the tape was not relevant, the state’s attorneys would probably be subject to sanctions. If the state refused to produce the tape, the only legitimate question would be whether it had a substantial interest in withholding it — one sufficient to override Campbell’s interests.
Denying Campbell the right to record the hanging presents no different issue than denying him access to a tape of the hanging already in the state’s possession — unless the act of recording somehow unduly interferes with a substantial state interest (which it doesn’t). The question is therefore the same in both cases: has the state presented an overriding reason for denying Campbell the evidence which is under its control — here, the opportunity to obtain and preserve that evidence. Cf Thomas v. Goldsmith, 979 F.2d 746 (9th Cir.1992) (state is obliged by the due process clause to come forward with evidence in its possession relevant to habeas petitioner’s challenge to his conviction). The answer is clear. Although the evidence in question is the best evidence of what actually transpires when the state executes a person by hanging, the state has failed to present anything approaching a substantial interest which would justify denying Campbell the opportunity to obtain that evidence. The only interests the state has asserted are Dodd’s privacy rights, which are minimal (and which are not the state’s to assert), and its comity interest in a rigid and undeviating adherence to a policy which it does not itself intend to follow in this case.
The value of the evidence sought to be preserved is not minimized by the fact that Dodd will be hooded during his execution. A videotape will demonstrate Dodd’s body movements, and the mechanical operation — or malfunction — of the state’s equipment. It will also provide an additional basis for inferring the force of impact on Dodd’s throat. This information would in turn assist medical experts in inferring the amount of time before death and the degree of pain inflicted on Dodd.
Finally, the majority’s suggestion that Campbell “desires the evidence for its sheer emotional impact” is odd indeed. If the evidence is not probative because a hood conceals all of the.execution's dramatic aspects, what sheer emotional impact is there to be feared? None, as I read one part of the majority’s opinion. A lot, as I read another. And who does the majority fear will be misled or otherwise adversely affected by a tape that may have great emotional impact? Apparently, the very same district judge whose order they affirm; for, the tape would be used only in a hearing before him — a hearing held without a jury. In fact, it makes little sense to suggest that Campbell wants the tape only for its sheer emotional impact — unless that impact would result from the type of evidence that might cause Judge Coughenour (or an appellate court) to conclude that hanging is indeed cruel or unusual. If the tape would indeed contain such evidence, as well it might, the majority does us all a great disservice in preventing Campbell from recording the hanging.
IV. Discovery in Habeas Corpus Proceedings.
The majority makes much of the fact that discovery under the Federal Rules of Civil Procedure is available to habeas petitioners for “good cause shown” and that under F.R.C.P.Rule 27, discovery while a case is pending on appeal “is proper to avoid a failure or delay of justice.” These requirements make no difference to the disposition of Campbell’s motion. Where the best available evidence relevant to a petitioner’s constitutional claim will be irretrievably lost without resort to normal discovery procedures, and no appreciable interest weighs against invoking those procedures, the “good cause” requirement is clearly met. It would be a gross abuse of discretion to conclude otherwise.
Moreover, the majority’s narrow focus on the availability of civil discovery overlooks the due process considerations implicated by the state’s deliberate attempt to obstruct Campbell’s access to evidence crucial to his constitutional challenge to hanging. As I discussed above, the state must present at least a substantial interest to justify denying a defendant access to such evidence. See Thomas v. Goldsmith, 979 F.2d 746 (9th Cir.1992) (state is obliged by the due process clause to come forward with evidence in its possession relevant to habeas petitioner’s challenge to his conviction). It has not done so here.
CONCLUSION
I have no doubt that the district court committed clear error in denying the motion. I would reverse and issue an order along the lines of the Harris order — an order that would fully protect the state’s interest in concealing the identity of its employees, would limit the use of the tape to its introduction into evidence at an evidentiary hearing in federal court, and would provide for physical possession of the tape by the federal courts at all other times.
I regret that the majority’s action will in the end require our court to consider the question of whether hanging is cruel and unusual without the benefit of evidence that would have helped us to make better informed decision. As far as I can see, there is absolutely no principled reason underlying the district court’s order. Accordingly, I consider the majority’s affirmance of that order most unfortunate.
Campbell v. Blodgett, 978 F.2d 1519 (9th Cir.1992) (Order Granting Rehearing En Banc).
If Dodd had consented to this procedure, Campbell surely would have informed the Court.
A similar order was granted by the district judge in the Robert Alton Harris case. Harris' recent execution was taped in conformance with that order for use in a class action challenge to the constitutionality of executions by lethal gas.
It is not clear in any event that Dodd’s interest in privacy outweighs the public's interest in observing governmental activity. At least there are no authoritative precedents on that question yet. However, we need not face that fundamental issue in this case.
The only legitimate possibility that disclosure would occur is the possibility that a federal court superior to the district court would someday order the tape’s release. Unlikely as this may be, it would in any event be improper for the district court to attempt to foreclose a superior court from considering any possible future action. .In any event, even if Dodd had asserted a privacy right, I would, for the reasons set forth in the text, grant Campbell’s motion.
The state advises us that the screen will separate Dodd from the witnesses only until the hangman acts. The witnesses will be able to see Dodd’s body as soon as it drops.