Brachtenbach, J.
In this capital murder case personal restraint petitioner Mitchell E. Rupe, who was sentenced to death, argues that a jury instruction directing the jury not to permit sympathy to influence it during sentencing deliberations was erroneous and requires a new penalty phase trial. We deny the petition.
Petitioner was convicted on two counts of first degree aggravated murder in the shooting deaths of two Olympia, Washington, bank tellers during the course of an armed robbery, and two counts of first degree robbery.
In June 1984 this court handed down the opinion in State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984).1 We affirmed petitioner's convictions, but reversed the sentence of death on the ground that evidence of petitioner's gun collection was erroneously admitted in the penalty phase of the trial. On remand for a second sentencing proceeding, petitioner was again sentenced to death. In response to the statutorily mandated question which the sentencing jury must answer under this state's capital sentencing statutes, the jury unanimously determined that there existed no sufficient mitigating circumstances to merit leniency. RCW 10.95.060(4). Petitioner's second sentence of death was upheld by this court in State v. Rupe, 108 Wn.2d 734, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988).2
Thereafter, petitioner filed a personal restraint petition with this court. In his brief in support of his personal restraint petition, petitioner raised a number of issues [382]*382relating to the second sentencing procedure. He argued that defense counsel never opened the door to the deputy prosecutor's rebuttal cross examination regarding the possibility of commutation, and that admission of evidence regarding the possibility of commutation constitutes reversible error.3 Petitioner also argued that defense counsel was ineffective in that he opened the door to rebuttal evidence regarding the possibility of commutation; counsel was ineffective in that he submitted an instruction directing the jury to disregard sympathy and in not objecting to the giving of a no-sympathy instruction; counsel was ineffective in not introducing mitigating psychological testimony at the sentencing proceeding; and counsel was ineffective in not submitting a jury instruction informing the jury that there is a presumption that a defendant merits leniency. Petitioner additionally argued that Washington's death penalty statute creates a mandatory presumption of death.
In an order filed March 30, 1990, we denied the petition as to all issues except the propriety of giving a no-sympathy instruction to the jury. As to that issue, the court set oral argument, and directed the parties to provide additional briefing limited to the no-sympathy instruction issue. The court also directed the parties to discuss the United States Supreme Court's opinion in Saffle v. Parks, _U.S__, 108 L. Ed. 2d 415, 110 S. Ct. 1257 (1990). Following further briefing and oral argument, we now address petitioner's remaining issue.
Petitioner's challenge is based upon the trial court's giving the following instruction to the jury:
[383]*383You are officers of the Court and must act impartially and with an earnest desire to determine and declare the proper verdict. Throughout your deliberations you will permit neither sympathy nor prejudice to influence you.
Instruction 1, Clerk's Papers, at 397 (given at close of trial). Substantially the same instruction was given orally at the beginning of trial. Verbatim Report of Proceedings, at 2350.
Petitioner maintains that the "anti-sympathy" language of the introductory jury instruction conflicted with the jury instructions defining the role of mitigating evidence. He argues that the decision in Saffle v. Parks, supra, does not decide this issue or, if it is applicable, it invalidates the no-sympathy instruction given here. He also relies upon what he terms "clear Washington precedent."
Petitioner claims that the decision in Saffle v. Parks, supra, does not decide the issue in this case. To understand the impact of that opinion, we begin with the premise that the State cannot bar the defense from presenting relevant mitigating evidence during the penalty phase of a capital trial, and the jury may not be limited in its consideration of such evidence. Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978); Eddings v. Oklahoma, 455 U.S. 104, 113-15, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). The sentencer may consider "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, at 604. The holdings of Lockett and Eddings are founded on the Eighth and Fourteenth Amendments' requirement of individualized sentencing in capital cases. Lockett, at 605.
In California v. Brown, 479 U.S. 538, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987), the Court reviewed a decision of the California State Supreme Court holding that a no-sympathy instruction violated the Eighth and Fourteenth Amendments. The instruction at issue informed the jurors that they ” 'must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling' during the penalty phase of a capital murder trial". [384]*384California v. Brown, supra, at 539. The California court reasoned that the instruction diverted the jury from its constitutional duty to consider any sympathetic aspect of the defendant's character or record whether or not related to the offense for which the defendant was on trial. People v. Brown, 40 Cal. 3d 512, 537, 726 P.2d 516, 230 Cal. Rptr. 834 (1985).
The United States Supreme Court reversed, holding that the instruction was not violative of the federal constitution. The Court reasoned that a reasonable juror focusing on the phrase "mere sympathy" would be likely to "interpret the phrase as an admonition to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase." California v. Brown, supra at 542 (hereafter Brown). The Court noted that the instruction was given at the end of the penalty phase, after defendant had produced 13 witnesses in his favor, and said that rather than interpreting the instruction as defendant urged and the California court did, it thought that
a reasonable juror would reject that interpretation, and instead understand the instruction not to rely on "mere sympathy" as a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase.
Brown, at 542. By prohibiting the jury from consideration of factors not presented at trial and irrelevant to the issues, the Court said, the instruction served the useful purpose of cautioning the jury not to rely on extraneous emotional factors which would be more likely to turn the jury against a capital defendant than for him. Brown, at 543. Also, the instruction "fosters the Eighth Amendment's 'need for reliability in the determination that death is the appropriate punishment in a specific case,'" and it helps ensure the "availability of meaningful judicial review" based on record evidence—another safeguard improving the reliability of the sentencing process. Brown, at 543.
Justice O'Connor concurred, writing "the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, [385]*385and crime rather than mere sympathy or emotion." Brown, at 545 (O'Connor, J., concurring).
The year after Brown was handed down, the Tenth Circuit addressed a petition for a writ of habeas corpus, which, among other things, challenged the following instruction given to the jury during the penalty phase of a capital trial: "You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence". Parks v. Brown, 860 F.2d 1545, 1548 (10th Cir. 1988), cert. granted, 490 U.S. 1034, 104 L. Ed. 2d 402, 109 S. Ct. 1930 (1989). The Tenth Circuit held the instruction was unconstitutional, and distinguished Brown on the basis that the instruction there concerned "mere" sympathy, which, the Tenth Circuit said, was crucial to the Court's decision in Brown, while the instruction before it concerned "any . . . sympathy." The court reasoned that the "absolute" anti-sympathy instruction unconstitutionally directed the jury to ignore sympathy which was based on mitigating evidence. The court further reasoned that such an instruction creates a "danger that [defendant's] counsel's plea for mercy and compassion will fall on deaf ears." Parks v. Brown, supra at 1556.
The United States Supreme Court granted certiorari, and reversed. Saffle v. Parks, _U.S. _, 108 L. Ed. 2d 415, 110 S. Ct. 1257 (1990) (hereafter Parks). The Court concluded the rule which petitioner sought would be a new rule which, under its recent opinions, would not apply retroactively on collateral review because it did not fit within either of two exceptions articulated by the Court. See Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989); Penry v. Lynaugh,_U.S._, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989).
In reaching this conclusion, the Court necessarily examined the substantive issue in order to determine whether the rule sought was a new rule. The Court applied a "functional view" of what constitutes a new rule, and stated that its task was to "determine whether a state court considering [petitioner's] claim at the time his conviction became [386]*386final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution." Parks, 108 L. Ed. 2d at 424. Then the Court reasoned that despite petitioner's reliance on Eddings and Lockett, those cases "do not speak directly, if at all, to the issue presented here: whether the State may instruct the sentencer to render its decision on the evidence without sympathy." Parks, 108 L. Ed. 2d at 425-26. The Court explained that a rule that no-sympathy instructions are unconstitutional relates
not to what mitigating evidence the jury must be permitted to consider in making its sentencing decision, but to how it must consider the mitigating evidence. There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making its sentencing decision, and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision.
Parks, 108 L. Ed. 2d at 426. The Court reasoned that petitioner's contention, that the State had unconstitutionally limited the manner in which his mitigating evidence may be considered, is not within the rule of Lockett and Eddings.
Petitioner argued in Parks that the no-sympathy instruction ran afoul of Lockett and Eddings because jurors who reacted sympathetically to mitigating evidence may interpret the instruction as barring them from considering that evidence. The Court rejected this argument, reasoning that the argument misapprehends the distinction between allowing the jury to consider mitigating evidence and guiding their consideration. Parks, 108 L. Ed. 2d at 427. The Court said that " [i]t would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary." Parks, 108 L. Ed. 2d at 427. Picking up the language from Justice O'Connor's concurrence in Brown, the Court said:
At the very least, nothing in Lockett and Eddings prevents the State from attempting to ensure reliability and nonarbitrariness by requiring that the jury consider and give effect to [387]*387the defendant's mitigating evidence in the form of a "reasoned moral response," Brown, 479 US, at 545 . . . (emphasis in original), rather than an emotional one. The State must not cut off full and fair consideration of mitigating evidence; but it need not grant the jury the choice to make the sentencing decision according to its own whims or caprice.
Parks, 108 L. Ed. 2d at 427-28.
The Court then addressed Brown. Petitioner argued that because in Brown the Court concluded that it is constitutional to prevent the jury from considering emotions not based upon the evidence, it followed that the jury must be allowed to consider and give effect to emotions which were based on the evidence. The Court rejected this argument, saying that for the same reasons that Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982) did not compel the rule sought by petitioner, it doubted that the inference sought by petitioner followed from Brown. In any case, the Court noted that Brown was decided after petitioner's conviction, and, in order to obtain the benefit, if any, of Brown, petitioner would have to show it did not establish a new rule and in doing so would have to show that Lockett and Eddings dictated the reasoning, if not the result, in Brown. The Court said its discussion made it evident that Lockett and Eddings did not. Parks, 108 L. Ed. 2d at 428.
Technically, as petitioner maintains, the Court's decision in Parks is a matter of federal habeas review. The Court held that under principles of retroactivity on collateral review, petitioner was not entitled to relief. While the Court in Parks did not expressly approve the instruction given in this case, the analysis in Brown and Parks together compel the conclusion that the instruction does not violate the Eighth and Fourteenth Amendments.
The rule of Lockett and Eddings that the defendant be allowed to present any mitigating evidence does not, as the Court in Parks made clear, support the proposition that a jury be allowed to determine whether to impose the death sentence based upon an emotional reaction of sympathy [388]*388rather than as a result of consideration of defendant's mitigating evidence. As the Court reasoned, any such conclusion would be completely at odds with the recognition that capital sentencing be reliable, accurate, and nonarbitrary.
The United States Supreme Court's seminal cases require the exercise of channeled discretion in imposing the death sentence, and, as the Court stated in Booth v. Maryland, 482 U.S. 496, 508, 96 L. Ed. 2d 440, 107 S. Ct. 2529 (1987), "any decision to impose the death sentence must 'be, and appear to be, based on reason rather than caprice or emotion."' From these premises, the Oregon Supreme Court reasoned:
Logically, it is completely antithetical to those two basic premises to allow, much less to invite, the jury to make an irrational, emotional capital sentencing decision. The historical pattern of juries according discretionary "mercy" to murderers who were sympathetic because they happened to be white and privileged, at the expense of those who were not sympathetic because they happened to be otherwise, is precisely what Furman v. Georgia, 408 US 238, 92 S Ct 2726, 33 L Ed 2d 346 (1972), and its progeny are all about.
State v. Moen, 309 Or. 45, 92 n.18, 786 P.2d 111 (1990).
In short, permitting the jury to base its decision on sympathy is incompatible with the constitutional requirement of channeled discretion in death sentencing decisions.
Moreover, we find compelling the reasoning of the United States Supreme Court that meaningful appellate review of death sentences would be seriously hampered if a jury could base its sentencing decision on sympathy. This court is required to review, pursuant to RCW 10.95.130(2), every case where the sentence of death is imposed in order to determine whether there were not sufficient mitigating circumstances warranting leniency, whether the sentence was 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. Each of these inquiries would be affected if juries decided death sentences based upon emotion.
[389]*389With respect to the first inquiry, as noted in Brown, at 543, sympathetic considerations could well work against a defendant. If a jury could properly act upon an unfavorable emotional response to defendant, the determination on review as to whether there were insufficient mitigating circumstances to warrant leniency would become a meaningless charade. Similarly, if juries could base sentencing decisions on sympathy, it would be futile to try to compare capital cases for proportionality, because in one instance the defense may successfully appeal to the sympathy of the jury while in another the defense may not, regardless of mitigating evidence submitted in the two cases. Finally, depending upon whether sympathy played for or against a defendant, a sentencing decision could actually be the result of passion or prejudice if sympathy were a proper jury consideration. It would then be senseless to review the case to determine whether the sentence resulted from passion or prejudice.
Thus, sympathy as a jury consideration is, in addition to being inconsistent with constitutionally mandated channeled discretion, also wholly inconsistent with the mandated review this court must give death sentences. As the Court in Brown observed, instructing the jury not to rely upon sympathy fosters the Eighth Amendment need for reliability and the availability of meaningful judicial review. Brown, at 543.
Basically, as the Court in Parks reasoned, a key distinction to be made in this case is the distinction between what evidence a defendant must be allowed to present under Lockett and Eddings, and how a jury may be permitted or required to view that evidence. In accord with Parks and Booth, the jury must reach its decision based upon a reasoned moral response to the evidence. It must consider all mitigating evidence presented by the defendant. It must not, however, be permitted to make its decision on the basis of an emotional response.
[390]*390The clear majority of courts addressing the issue after Brown have agreed that a no-sympathy instruction is not unconstitutional in the penalty phase of a capital case. See Parks, 108 L. Ed. 2d at 426, 428 (citing Byrne v. Butler, 847 F.2d 1135, 1138-40 (5th Cir. 1988); People v. Emerson, 122 Ill. 2d 411, 442-43, 522 N.E.2d 1109, 1122 (1987), cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235, 109 S. Ct. 246 (1988); State v. Ramseur, 106 N.J. 123, 295-99, 524 A.2d 188, 275-77 (1987); State v. Steffen, 31 Ohio St. 3d 111, 125, 509 N.E.2d 383, 396 (1987), cert. denied, 485 U.S. 916, 99 L. Ed. 2d 250, 108 S. Ct. 1089 (1988); State v. Owens, 293 S.C. 161, 169, 359 S.E.2d 275, 279, cert. denied, 484 U.S. 982, 98 L. Ed. 2d 496, 108 S. Ct. 496 (1987); State v. Porterfield, 746 S.W.2d 441, 450-51 (Tenn.), cert. denied, 486 U.S. 1017, 100 L. Ed. 2d 218, 108 S. Ct. 1756 (1988)).
In addition to Illinois, New Jersey, Ohio, South Carolina, and Tennessee, other state courts have addressed Brown and have held that giving a no-sympathy instruction in the penalty phase of a capital trial is not unconstitutional. E.g., State v. Moen, 309 Or. 45, 786 P.2d 111 (1990); Fox v. State, 779 P.2d 562 (Okla. Crim. App. 1989), cert. denied, 108 L. Ed. 2d 777 (1990); Woods v. State, 547 N.E.2d 772 (Ind. 1989); State v. Copeland, 530 So. 2d 526 (La. 1988); cf. State v. Clemmons, 753 S.W.2d 901 (prosecutor reminded jury of nonexistent oath that it would make its decision without sympathy, prejudice, hatred, or fear; court said statement was incorrect (jury took no such oath), but also said sympathy is not a proper factor for the jury to consider in reaching its decision as to punishment), cert. denied, 488 U.S. 948 (1988).
As have the vast majority of courts addressing this question, we conclude that giving a no-sympathy instruction does not violate the Eighth and Fourteenth amendments.
Petitioner argues, however, that even if the reasoning in Parks applies to this case, it invalidates, rather than validates, the instruction here. He reasons that the instruction in Parks to "avoid any influence of sympathy ... or other [391]*391arbitrary factor", Parks, 108 L. Ed. 2d at 423, is akin to the "mere sympathy" instruction in Brown. He reasons that these instructions are constitutionally permissible. In contrast, he maintains, the instruction here does not explain that the sympathy to be avoided is that of an arbitrary nature or mere sympathy unrelated to the evidence. He argues that consideration of sympathy based upon the evidence is constitutionally required.
After Parks, however, it is clear to us that neither Brown nor Parks should be read as narrowly as petitioner urges.4 The import of Brown is that a general appeal to the jurors' emotional responses is impermissible, while full consideration of objective mitigating circumstances is constitutionally mandated. State v. Moen, 786 P.2d at 139 (rejecting defendant's argument that "mere sympathy" and "extraneous emotion" are inappropriate considerations under Brown while "sympathy" which is not "mere" or "extraneous" is appropriate jury consideration). Brown does not stand for the proposition that "mere sympathy" is to be distinguished from "sympathy."
If there was ever any doubt on this question, the Court's analysis in Parks resolved it:
The objectives of fairness and accuracy are more likely to be threatened than promoted by a rule allowing the sentence to turn not on whether the defendant, in the eyes of the community, is morally deserving of the death sentence, but on whether the defendant can strike an emotional cord in a juror.
Parks, 108 L. Ed. 2d at 429. The Court's reasoning applies whether the sympathy at issue is "mere" sympathy or sympathy as a purely emotional response to the evidence.
Petitioner maintains that, regardless of Parks, the no-sympathy instruction is reversible error under state law. Petitioner relies heavily on State v. Quinlivan, 81 Wn.2d 124, 499 P.2d 1268, 72 A.L.R.3d 835 (1972). Analysis of Quinlivan within its historical framework demonstrates [392]*392why the case is now of no precedential value, contrary to petitioner's argument.
In Quinlivan, the defendant appealed his convictions and sentence of death. This court reversed his convictions because erroneous insanity instructions given the jury constituted reversible error. Of importance here, the court also determined that error resulted from the giving of a no-sympathy instruction. The jury was instructed not to be moved by sympathy in reaching its verdict. The jury was also instructed to consider all the evidence admitted in the case, "not only that which is directly connected with the crimes charged, but also the evidence bearing upon defendant's background, rearing, environment and family history." Quinlivan, at 130. The court reasoned that the second of these instructions would normally leave open the possibility of the jury's consideration of sympathy as a factor in reaching its penalty decision, but because the first instruction specifically warned the jury not to consider sympathy, the jury could have concluded that sympathy was to play no part in its decision on the penalty issue. Quinlivan, at 130.
The court said that contrary to the implication in the instructions, sympathy is an appropriate factor for the jury to consider in determining the penalty. The court cited as authority two California cases, People v. Bandhauer, 1 Cal. 3d 609, 463 P.2d 408, 83 Cal. Rptr. 184 (1970) and People v. Polk, 63 Cal. 2d 443, 406 P.2d 641, 47 Cal. Rptr. 1 (1965), cert. denied, 384 U.S. 1010 (1966). These two cases are traceable to People v. Friend, 47 Cal. 2d 749, 306 P.2d 463 (1957), overruled on other grounds in People v. Love, 56 Cal. 2d 720, 366 P.2d 33 (1961) and People v. Morse, 60 Cal. 2d 631, 388 P.2d 33, 36 Cal. Rptr. 201 (1964). In Friend, the court determined that the prosecutor's argument and the trial court's instructions gave the erroneous impression that it was necessary to find mitigating circumstances before the jury could assess punishment at life imprisonment rather than death. The court thus reversed [393]*393defendant's death sentence and remanded for resentencing proceedings.
The court in Friend explained that the choice between death and life imprisonment is in every case committed to the jury's absolute discretion, "that insofar as selecting the penalty is concerned . . . the law does not itself prescribe, nor authorize the court to innovate, any rule circumscribing the exercise of their discretion. ..." Friend, at 767. Among factors which the court listed as being solely within the jury's discretion to consider was "sympathy or clemency." Friend, at 768.
The California court's deference to absolute, unfettered jury discretion accords with a number of opinions by this court addressing this state's death penalty statutory scheme under which the defendant in Quinlivan was sentenced. E.g., State v. Music, 79 Wn.2d 699, 705-07, 489 P.2d 159 (1971), vacated in part, 408 U.S. 940 (1972). In Music, the court rejected defendant's argument that the jury's function in choosing, without guidelines, between imposition of life imprisonment or the death penalty violated the state and federal constitutions. The court relied upon the United States Supreme Court's decision in McGautha v. California, 402 U.S. 183, 28 L. Ed. 2d 711, 91 S. Ct. 1454 (1971), where the Court said that "we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution." Music, at 706 (quoting McGautha, at 207).
As is now well known, subsequently the United States Supreme Court invalidated as violative of the Eighth Amendment death penalty schemes like the discretionary death statute upheld in McGautha. See State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982), State's cert. granted and remanded, 463 U.S. 1203, defendant's cert. denied, 463 U.S. 1212 (1983) (Bartholomew I) (discussing landmark decisions in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972); Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976); Woodson [394]*394v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976); Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976)).
Rather than "untrammeled" (absolute, unguided) discretion, the jury must be provided with "objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death." Woodson, at 303; Bartholomew I, at 184. The death penalty statute under which the defendant in Quinlivan was sentenced, see Laws of 1919, ch. 112, § 1, was declared unconstitutional by this court following Furman. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972) (handed down less than 2 months after Quinlivan). Under Furman, the California statute was also unconstitutional.
Thus, the holding in Quinlivan that giving the no-sympathy instruction was reversible error is ultimately founded on an unconstitutional interpretation of unconstitutional death penalty schemes. On the no-sympathy issue, therefore, the opinion is not sound precedent.
Petitioner correctly notes, however, that in two recent opinions this court has cited Quinlivan. In State v. Mak, 105 Wn.2d 692, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986), the defendant complained about the lack of a sympathy instruction and argued that sympathy is an appropriate factor for the jury to consider in capital sentencing proceedings. We observed that the jury instructions gave the jury the right to consider mercy, and reasoned that, because mercy and sympathy are both defined in terms of compassion, even if defendant was entitled to argue sympathy as he argued was his right, under the instructions given he was able to do so. However, we did not address in Mak the issue before us now, and we clearly did not hold that giving a no-sympathy instruction is reversible error.
In State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 105 L. Ed. 2d 707, 109 S. Ct. 3200 (1989), the defendant argued that failure to give the instruction at issue here erroneously allowed the jury to consider sympathy for the victims. We determined that not [395]*395giving the instruction was not error, and then said that "had the trial court then instructed the jury 'you will permit neither sympathy nor prejudice to influence you', he would have created reversible error. . . . See State v. Quinlivan, 81 Wn.2d 124, 129-30, 499 P.2d 1268, 72 A.L.R.3d 835 (1972)." Rice, at 611-12. We agree that this statement suggests that giving a no-sympathy instruction is reversible error. Again, however, the issue before us now was not at issue in Rice. The statement in Rice is dicta, because the precise issue there was the failure to instruct that sympathy for the victims was an improper consideration for the jury. As explained herein, our close examination of this issue, when directly faced with the propriety of the no-sympathy instruction, and our examination of the antecedents to the holding in Quinlivan, undertaken here but not in Rice, demonstrate that the statement in Rice has proven to be incorrect.
Mak and Rice both refer only to Quinlivan in this area, and neither opinion contains any analysis independent of Quinlivan which supports petitioner.
At oral argument defense counsel characterized Quinlivan as setting forth state common law that giving a no-sympathy instruction in the sentencing phase of a capital trial is reversible error. Quinlivan does not identify any basis for its holding other than the California cases referred to above. To the extent the relevant holding in Quinlivan rested on federal constitutional law, it is invalid as explained herein. To the extent it rested on this state's death penalty statute then in effect it is also invalid, as that statute was unconstitutional.
As to the possibility that the state constitution may be implicated, the lack of any reference to any state constitutional provision in Quinlivan leads us to conclude that this court did not base its decision on state constitutional grounds. Instead, it appears the court followed then current thinking that under the federal constitution the jury must have unfettered discretion in deciding whether to impose the death sentence.
[396]*396Regardless, the state constitution could not permit what is forbidden under the United States Constitution. Allowing a jury to decide whether to impose the death sentence based upon the emotional reaction of sympathy is irreconcilable with the federal constitutional requirement that a sentencing decision be reliable and nonarbitrary— the constitutionally required exercise of channeled discretion by the sentencing jury. It seems to us, therefore, that the state constitution would be of no help even if petitioner properly invoked it. However, petitioner has not argued that the state constitution affords greater protections under the circumstances here than does the federal constitution, and we therefore decline to issue any holding under the state constitution.5 See State v. Wethered, 110 Wn.2d 466, 471-73, 755 P.2d 797 (1988). We reject, however, petitioner's contention that Quinlivan establishes a common law principle which we may follow despite Brown and Parks.
From our foregoing analysis, it follows that we do not agree with petitioner that a no-sympathy instruction is, as a general proposition, necessarily inconsistent with jury instructions on mitigating circumstances.
Petitioner contends, however, that the no-sympathy instruction conflicted with the instructions actually given in this case defining mitigating evidence. He maintains that conflict on a material issue, the decisional standard, requires reversal, relying upon, among other cases, State v. Wanrow, 88 Wn.2d 221, 239, 559 P.2d 548 (1977). He argues that jury instructions 1 and 9 conflicted on the role of sympathy in the jury's consideration of mitigating circumstances.
[397]*397As explained above, to the extent petitioner's argument rests on the assertion that sympathy is a proper jury consideration, we have already rejected it. As explained below, to the extent it might be argued that instruction 1 tells a jury not to be swayed by sympathy and instruction 9 indicates otherwise, we do not agree that the instructions given in this case contradicted each other on the proper decisional standard.
Instruction 1 informed the jury that it was not to permit prejudice or sympathy to influence it. Clerk's Papers, at 397. This instruction is proper under our analysis in this opinion. Instruction 7 informed the jury that it could consider any relevant factors in deciding whether there were not sufficient mitigating circumstances to merit leniency and then listed, as nonexclusive, the factors set forth in RCW 10.95.070. Clerk's Papers, at 403. We have previously approved instructions in the language of the statute as accurately informing the jury of appropriate mitigating factors, while not limiting the defendant's right to present factors not listed in the statute. State v. Rupe, 101 Wn.2d 664, 709-10, 683 P.2d 571 (1984); State v. Campbell, 103 Wn.2d 1, 28, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985).
Instruction 9 directed the jury that "[mjitigating circumstances, as referred to in these instructions, means any relevant factors which do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as cause for a less severe punishment." Clerk's Papers, at 405. Contrary to petitioner's claim, this instruction is not inconsistent with the no-sympathy instruction. The instruction directs the jury that mitigating evidence is evidence which in fairness and mercy may call for leniency. The instruction clearly ties the reference to "mercy" to "fairness" and to the mitigating circumstances which defendant presents. The jury is thus directed to engage in a "reasoned moral response" to defendant's mitigating evidence, as required, rather than an emotional reaction.
[398]*398Moreover, instruction 9 is not inconsistent with the constitutional mandate that the defendant be allowed to present all relevant mitigating evidence, including that relating to defendant in addition to that relating to the offense. While the instruction defines mitigating circumstances as relevant factors which do not constitute a justification or excuse of the offense in question, this language does not improperly limit the jury's consideration of mitigating evidence to that relating to the offense only. To the contrary, the instruction directs that any relevant factor may be considered, but carefully excludes factors constituting excuse or justification, which are not relevant mitigating factors in sentencing but are instead considerations involved with the determination of guilt. See RCW 9A.16-.030 (excusable homicide); RCW 9A.16.030, .040 (justifiable homicide).
Instruction 1 also told the jury to consider the instructions as a whole and not place any undue emphasis on any instruction. Clerk's Papers, at 396.
We conclude that these instructions properly informed the jury of its role in considering mitigating circumstances, and guided the jury to consider such factors as in mercy and fairness, together, might give cause for leniency. The jury was properly instructed not to permit sympathy to influence it. The instructions did not conflict on the proper decisional standard.
Moreover, as this court noted in State v. Rupe, 108 Wn.2d 734, 770, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988), all possible mitigating factors were before the jury. Petitioner presented the testimony of 58 witnesses concerning the existence of mitigating circumstances. The prosecutor agreed that petitioner's background was exemplary. Verbatim Report of Proceedings, at 3804. The prosecutor told the jury that the statute allows for consideration of mitigating circumstances in addition to those listed in instruction 7. Verbatim Report of Proceedings, at 3805.
[399]*399Defense counsel reminded the jury that the defense witnesses spoke well of petitioner. Verbatim Report of Proceedings, at 3844. Defense counsel referred to the no-sympathy instruction and cautioned the jury not to be affected by sympathy for the victims. Verbatim Report of Proceedings, at 3861-62. Defense counsel said ” [i]f you acted on your emotional reaction to those photographs [of the victims], that would be revenge, that would be vengeance. That has no place in our criminal justice system." Verbatim Report of Proceedings, at 3862. Defense counsel said petitioner's "life is a statement for mercy. In fairness and mercy is part of the definition of mitigating circumstances in the instructions." Verbatim Report of Proceedings, at 3862.
In rebuttal, the prosecutor reminded the jury it was to read the instructions as a whole and not give particular emphasis to any one. Verbatim Report of Proceedings, at 3865. The prosecutor responded to defense counsel's caution not to consider sympathy for the victims and said:
. . . [Defense counsel] tells you you should not consider sympathy nor prejudice, and yet I submit to you that a lot of the testimony that you heard was for nothing other than sympathy.
. . . [Defense counsel's] last few remarks [about others who would be affected by the jury's decision] were to elicit feelings of sympathy for other people. We are not here to consider other people. We are here to consider Mitchell Rupe right now.
If we are going to talk about people that are concerned about Mitchell Rupe, then let's talk about people that were concerned about the victims. Those aren't the issues. You push aside sympathy. Consider the nature of the crime and the facts regarding the defendant and not anybody else.
Verbatim Report of Proceedings, at 3886. The prosecutor also referred to defense counsel's argument about the photographs:
. . . [Defense counsel] said you probably had an emotional reaction when you saw some of those photographs. I think you had a reaction, and probably there was some emotion there. We are all human beings. There is nothing wrong with emotion. But you can't let sympathy nor prejudice affect you.
Verbatim Report of Proceedings, at 3894.
[400]*400The defense was able to fully present and argue mitigating circumstances, both parties correctly informed the jury it was not to consider sympathy for the victims, the prosecutor told the jury not to consider sympathy for others who might be affected by their decision, and directed their attention to the nature of the crime and the facts regarding the defendant and not anyone else.
The giving of the no-sympathy instruction was not error.6 We deny the personal restraint petition as to this remaining issue.
Appendix A
In State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984) we addressed the following issues: whether the trial court abused its discretion by refusing to grant petitioner's motion for a change of venue; whether the trial court erred by admitting petitioner's statements to police; whether technical violations of RCW 9.73.090 (relating to requirements for taped recordings of arrested persons) required exclusions of taped statements to police; whether petitioner was prejudiced by admission of a 911 tape, predeath photographs of the victims, or hearsay testimony; whether petitioner was denied due process by exclusion of evidence regarding results of a polygraph examination of a state's chief witness; whether petitioner's separate convictions for robbery violated double jeopardy; whether due process requires that the State release to a defendant the fact that identified witnesses may have potentially exculpatory evidence when the witnesses' statements have been released to defense counsel; whether the deputy prosecutor improperly exceeded the scope of cross examination; whether the jury was improperly allowed to consider aggravating factors not supported by the evidence; whether petitioner was denied due process by the procedure for death qualifying the jury; whether this state's capital punishment statute is unconstitutional; whether petitioner was prejudiced by improper admission of aggravating evidence; whether the trial court improperly excluded mitigating evidence during the sentencing phase of the trial; whether the jury was [401]*401improperly instructed during the sentencing phase; and whether petitioner was prejudiced by the trial court allowing the jury access to publicity during the guilt and sentencing phases of the trial.
Appendix B
In our opinion affirming the death sentence in State v. Rupe, 108 Wn.2d 734, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988), we addressed twelve issues raised by petitioner relating to his second sentencing proceeding, including: whether statutory or due process rights were violated because the State did not refile a notice of intent to seek the death penalty; whether petitioner's right to counsel was violated; whether a right to "speedy sentencing" was violated; whether due process was violated on the basis that the State did not bring him before the trial court in a timely manner; whether the resentencing trial resulted in petitioner's twice being placed in jeopardy for the same offense; whether petitioner was denied his right to trial by a jury composed of a fair cross section of the community; whether petitioner was denied the right to a fair and impartial jury as a result of the trial court's failure to excuse three jurors he challenged for cause; whether petitioner's right to a fair and impartial trial was denied because the trial court denied his motion for a change of venue; whether the trial court erred by admitting evidence at the resentencing trial of the facts and circumstances of the crime; whether the trial court erred by admitting certain photographic exhibits; whether the trial court erred in permitting the deputy prosecutor to ask in cross examination about the possibility that his sentence might be commuted; and whether the trial court gave erroneous instructions on jury unanimity. Pursuant to RCW 10.95.130(2), we examined the record and determined that there was sufficient evidence supporting the jury's conclusion that there were insufficient mitigating circumstances to warrant leniency; that the death sentence was not excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant; and that the sentence of death was not the result of passion or prejudice.
Callow, C.J., and Dore, Andersen, Durham, Smith, and Guy, JJ., concur.