State v. Brett

892 P.2d 29, 126 Wash. 2d 136, 1995 Wash. LEXIS 146

• Court: Washington Supreme Court
• Decided: April 4, 1995
• Docket: 59429-5
• Status: Published

Opinions

Dolliver, J.

— James Leroy Brett was convicted by a jury in Clark County Superior Court of aggravated first degree murder and first degree felony murder. The jury sentenced Brett to death following a sentencing proceeding conducted in accordance with the legislative guidelines set forth in RCW 10.95. Brett appealed directly to this court alleging numerous errors occurred in the pretrial, guilt, and penalty phases of the trial. After carefully considering Brett’s arguments and conducting our statutorily mandated review, we find there is no reversible error and affirm the conviction and death sentence.

Facts

James Leroy Brett was living in Longview, Washington, with his girlfriend, Shirley Martin, and her son, Miles, when he originated a "plan” to do "one last big job” to make their life better. Report of Proceedings vol. 12, at 93. At the time, Martin was receiving welfare benefits, and Brett was attempting to obtain Social Security benefits.

According to the plan, Brett and Martin would select an elderly couple’s house in a rich neighborhood and restrain the victims until the next day when their bank opened. Brett and Martin would force the victims to withdraw their money and then kill them by injecting a toxic substance into the back of their heads.

To facilitate commission of the plan, Martin and Brett acquired a shotgun and shells, stocking caps, gloves, duct tape, and a duffel bag. Brett also obtained three to four 100-cubic-centimeter syringes which were larger than the insulin needles Brett ordinarily used for his diabetes.

In the early afternoon of December 3, 1991, Brett and Martin dropped Martin’s son, Miles, off at the house of Rhonda Camba, Brett’s sister. They said they would be gone overnight and would pick up Miles the next morning. Brett and Martin drove to Vancouver and picked out an upper middle class neighborhood. They waited for nightfall to increase the likelihood the potential victims would be in bed. During that time, they had a drink at a bar, smoked marijuana, ate at a Denny’s restaurant, and purchased some items at a convenience store. Martin testified they smoked a lot that day and characterized themselves as being "baked”, a term Martin uses to describe being very high on marijuana.

When it was dark, Brett and Martin drove back to the Mount Vista neighborhood and parked. Each wore gloves and stocking caps that did not cover their faces. Brett felt masks were not needed because there would be no survivors. Brett picked the Milosevich residence at random. Martin rang the doorbell, and Mrs. Milosevich went upstairs to wake her husband. Brett was standing off to the side of the entrance holding a shotgun.

The parties stipulated Brett used a .410 caliber single-barreled, bolt-action shotgun. Before firing a second shot, the user would have to pull the bolt back to eject the spent shell, place a new shell in the chamber, close the bolt, and release the safety. Both the barrel and the stock of the shotgun were sawed off.

Martin told Mr. Milosevich she was having car trouble, and when he started to open the door, Brett and Martin forced their way in at gunpoint and ordered the Miloseviches down on the floor. Mr. Milosevich remained standing. The burglar alarm was activated, and before Mrs. Milosevich could comply with Brett’s demand to deactivate the system, a signal was sent to ADT Security Systems. ADT attempted to contact the occupants by telephone and, receiving no response, notified police.

Martin testified things were getting "way out of control . . .”. Report of Proceedings vol 12, at 115-16. She forced Mrs. Milosevich to stay down with a knife and tried to intimidate and plead with Mr. Milosevich to cooperate. Then, Martin was thrown against the wall by someone, believed to be Brett, and when she got up, she saw Mr. Milosevich make a move toward Brett who fired the shotgun at his chest. While Brett was reloading, Mrs. Milosevich ran out of the house to the next-door neighbor’s. When she started to run, Brett pointed the gun at her then turned it back toward Mr. Milosevich. Mr. Milosevich pleaded for his life saying, " 'Oh God, please don’t.’ ” Brett responded by telling Mr. Milosevich " 'You’re going to die,’. . .”. Report of Proceedings vol. 12, at 116. Martin ran out of the house and heard a second gunshot. Mr. Milosevich was shot in the back of the head at close range. Brett and Martin fled the scene without taking anything from the residence.

At approximately 11:14 p.m. on December 3,1991, a Clark County deputy sheriff was dispatched to the Milosevich residence. Upon his arrival, the deputy found the victim, Kenneth Milosevich, dead from two gunshot wounds. There were blood splatters on the floor near the victim, but there were no signs of a struggle, and nothing appeared to be disturbed in the remainder of the residence. The crime scene was contained, photographed, and videotaped by police.

Brett and Martin drove to the house of Brett’s mother where he confessed to the killing. Brett also told his sister, Rhonda Camba, that he had "killed somebody”. Report of Proceedings vol. 12, at 19. Brett said he did not go there to kill anyone, he just intended to rob them.

Later that day, Brett put items used in the crime in a duffel bag and threw it in the river. The police recovered the duffel bag from a slough in Longview. The duffel contained gloves, a black stocking cap, a short-sleeved shirt, two pairs of jeans, two heavy leather coats, and a yellow casing for a syringe needle. The shotgun was never recovered.

Shirley Martin was charged with and pleaded guilty to premeditated murder in the first degree, burglary in the first degree, assault in the second degree, and attempted robbery in the first degree.

On December 10,1991, Brett was charged with aggravated murder in the first degree of Kenneth George Milosevich which charge alleged the murder was committed in the course of, in furtherance of, or in immediate flight from robbery in the first or second degree and burglary in the first or second degree. The court entered a plea of not guilty on Brett’s behalf on January 13, 1992. On January 22, 1992, the State filed a notice of intent to seek the death penalty.

Thereafter, on March 27,1992, the State filed an amended information charging Brett with aggravated murder in the first degree, adding the aggravating factors of concealment and kidnapping in the first degree (count 1). Count 2 alleged felony murder in the first degree based on robbery or attempted robbery in the first or second degree. Counts 3 through 5 alleged crimes naming Kenneth Milosevich’s wife, Patricia. Count 6 alleged burglary in the first degree. The court stayed counts 3 through 6 pending resolution of count 1.

On April 16,1992, at Brett’s arraignment, the State moved to file a second amended information merging counts 1 and 2. Brett objected and attempted to plead guilty to count 2 (felony murder). The court refused the guilty plea and granted the State’s motion. The court entered a plea of not guilty on Brett’s behalf. A second notice of intent to seek the death penalty was filed with the second amended information.

Brett moved for a bill of particulars on the aggravating factors of robbery, kidnapping, and concealment and moved to dismiss the aggravators of robbery and kidnapping. The court denied both pretrial motions.

During voir dire, the defense challenged 12 jurors for cause who expressed support for the death penalty. The trial court denied the challenges, and the defense was forced to use its peremptory challenges. As a result, two jurors challenged for cause sat on the jury, Deborah J. Monohan and Mark J. Bowyer. The prosecution used its peremptory challenges to exclude five jurors who expressed doubts about the death penalty.

At the close of the State’s case, the trial court denied the defense motions to dismiss the concealment, kidnapping, and robbery aggravating factors for lack of evidence. The motions were renewed at the close of the defense case and were again denied.

The jury found Brett guilty of first degree felony murder and aggravated first degree murder with four aggravating factors: first degree burglary, first degree robbery, first degree kidnapping, and concealment of the perpetrator’s identity.

The penalty phase commenced on June 15, 1992, and lasted 3¹/2 days. The State opened the penalty phase by submitting certified copies of Brett’s juvenile adjudications and criminal convictions. During rebuttal, the State also introduced the results of "a performance I.Q.” test administered to Brett in Shelton by the Department of Corrections in March 1989 wherein he scored in the 52nd percentile. Brett was also given a basic education test which ranked him at a ninth grade education level.

The defense introduced testimony from family members, schoolteachers and administrators, and juvenile detention facility counselors and staff which detailed Brett’s family and school history. The testimony showed that Brett grew up in a poor, unstable household with little, if any, parental support or guidance, in which alcohol was abused by the adults and shared with the children at very young ages.

Brett’s mother, Sherry Brett, is an admitted alcoholic and testified that while she was pregnant with James she abused alcohol and smoked l¹/2 to 2 packs of cigarettes every day. Brett was the youngest child and was illegitimate. He was diagnosed with diabetes when he was 8 years old.

Sherry Brett had numerous boyfriends and three marriages. While married to Robert Spurgeon, the couple separated many times and moved frequently. Thereafter, Sherry Brett married Wayne Powell, and the alcohol abuse continued. Sherry and Wayne would make up gallons of homemade Kahlua and brandy which was available to the children. Brett’s sister, Rhonda Camba, testified it was not unusual while Brett was growing up for him to drink until he passed out. Brett and his three older sisters all have substance abuse problems. When Brett was about 12 years old, he attempted suicide by swallowing a whole box of diet pills.

There was also testimony that Brett had good qualities. Brett was characterized as a gentle person who had good relationships with his young nieces and nephews and Shirley Martin’s son.

Brett’s school history showed he was a low average student, who did well in structured environments. Brett attended school in the Longview School District and received special education for 3 years until he was 14 years old. Brett had attendance problems, and the vice principal of the middle school testified Mrs. Brett was the only mother of a student he had taken to court due to attendance problems in his 12-year tenure.

When Brett was 14 years old, he and his 18-year-old brother-in-law, Alan Blackmon, robbed a convenience store. Brett was convicted and sent to Echo Glen Children’s Center, a juvenile detention facility. He received little family support while there. On two different occasions, family members visiting Brett gave him marijuana and Valium.

In March 1985, Brett escaped by binding a female staff worker with an electrical cord and attempting to strangle her with a towel. Brett pleaded guilty and was convicted of kidnapping in the first degree, assault in the second degree, and escape in the first degree.

As a result of the incident at Echo Glen, Brett was transferred to Maple Lane School in 1985 where he resided, with two brief interruptions, until 1990 when he was released. While there, Brett was cooperative, conformed to the rules and was not physically threatening. He was enrolled in learning disabled classes, primarily vocational-type courses, and maintained a B average. He progressed from maximum to minimum security. At one point, Brett assisted a counselor in subduing a boy who had tried to grab her keys.

Brett, however, was impulsive, had low self-control, and presented an escape risk. On more than one occasion he escaped from Maple Lane by climbing over an approximately 12-foot-high chain link fence. In addition, Brett was self-destructive. He would refuse his insulin or slash his wrists. On one occasion he attempted suicide by drinking pesticide, and on another he attempted to kill himself with a razor, opening a wound that required approximately 63 stitches to close.

Juvenile authorities attempted to help Brett make the transition back into the community by transferring him first to the Oakridge Group Home and then to the Woodinville Group Home. Brett, however, either asked to be returned to the more structured environment at Maple Lane or walked away from the group homes. This resulted in adjudications for escape and his return to Maple Lane. Woodinville staff opined that one factor motivating Brett’s escapes was his institutionalization. He wanted to be returned to the more structured environment at Maple Lane where he felt safer and more comfortable.

The defense also presented testimony from Robert Ryan, Ph.D., a chemical dependency and mental health counselor, regarding the causative factors of fetal alcohol syndrome/ fetal alcohol effect (FAS/FAE) and the characteristics of children suffering from the conditions. Ryan is not qualified to diagnose FAS/FAE. The trial court denied the defense motion, made on the third day of the penalty phase, for a continuance for 30 days in order to obtain the services of an expert who could evaluate and diagnose whether Brett suffered from FAS or FAE.

Based on the evidence, the jury found there were not sufficient mitigating circumstances to merit leniency and returned a death verdict.

Analysis

Pretrial Issues

1. Information.

The second amended information, under which Brett was arraigned, alleged "[t]he murder was committed in the course of, in furtherance of, or in immediate flight from” robbery in the first degree, burglary in the first degree, and kidnapping in the first degree "in violation of . . . RCW 10.95.020(9)(a), RCW 10.95.020(9)(c) and RCW 10.95.020(9)(d) . . .”. Clerk’s Papers, at 203-04. Brett asserts the information was deficient and violated the essential elements rule because it failed to set forth the elements of the crime-based aggravating factors or make reference to the specific criminal statutes.

The sixth amendment to the United States Constitution and Const. art. 1, § 22 (amend. 10) require an information to include all statutory and common law elements of the crimes charged. State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991). Aggravating circumstances, however, are not elements of the crime, but " 'aggravation of penalty’ ” factors. State v. Kincaid, 103 Wn.2d 304, 307, 692 P.2d 823 (1985). See State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988); State v. Mak, 105 Wn.2d 692, 741-42, 718 P.2d 407 (hereinafter Mak), cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991), aff’d, 970 F.2d 614 (9th Cir. 1992), cert. denied,_U.S._, 122 L. Ed. 2d 742, 113 S. Ct. 1363 (1993). The essential elements rule is not violated.

In addition, the second amended information adequately notified Brett which aggravating factors, if proved, would be used to enhance his sentence. See State v. Frazier, 81 Wn.2d 628, 503 P.2d 1073 (1972); State v. Nass, 76 Wn.2d 368, 456 P.2d 347 (1969).

Brett makes a separate argument that the information was deficient because it alleged the murder was committed in the "course of or furtherance of robbery”, rather than the crime of robbery. This argument is without merit. The information cites to RCW 10.95.020(9)(a), which lists the crime of robbery in the first or second degree as an aggravating factor.

We find no error in the information.

2. Filing of Second Amended Information.

Brett contends the trial court erred in allowing the filing of the second amended information and in refusing to accept his plea of guilty to felony murder. We review the granting of a motion to amend an information under an abuse of discretion standard. See State v. Haner, 95 Wn.2d 858, 631 P.2d 381 (1981).

The first amended information charged Brett in two separate counts with first degree premeditated murder (count 1) and first degree felony murder (count 2). At arraignment, the State moved to file the second amended information which charged a single crime, first degree murder, by alternate means, felony murder and premeditated murder. Brett objected and attempted to plead guilty to count 2. The trial court granted the State’s motion, and Brett was unable to enter a guilty plea to felony murder. See State v. Bowerman, 115 Wn.2d 794, 801, 802 P.2d 116 (1990).

Defendants do not have a constitutional right to plead guilty, but this state has conferred such a right by court rule. CrR 4.2(a) provides: "A defendant may plead not guilty, not guilty by reason of insanity or guilty.” See State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980). The State also has a right to amend an existing information to include an alternate means of committing a crime formerly charged anytime before the verdict "if substantial rights of the defendant are not prejudiced.” CrR 2.1(d); State v. Smith, 93 Wn.2d 329, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980); State v. Powell, 34 Wn. App. 791, 793, 664 P.2d 1 (1983), review denied, 100 Wn.2d 1035 (1984).

Brett’s right to plead guilty must be harmonized with the State’s right to amend the information. See State v. Wernick, 40 Wn. App. 266, 270, 698 P.2d 573 (1985) (quoting and citing Seattle v. Crockett, 87 Wn.2d 253, 256, 551 P.2d 740 (1976) and Emwright v. King Cy., 96 Wn.2d 538, 543, 637 P.2d 656 (1981)). Such harmonization is provided by CrR 2.1(d) which allows informations to be amended if substantial rights of defendants are not prejudiced thereby.

In this case, Brett has failed to show such prejudice.

Brett contends he was deprived of the ability to argue to a penalty phase jury that he accepted responsibility for Mr. Milosevich’s death based upon a guilty plea to felony murder. Brett informed the jury, starting with voir dire, that he accepted responsibility for the death. He has not established the lack of a guilty plea had a detrimental effect. A jury might speculate a plea to a noncapital crime was motivated out of fear rather than integrity. Brett also asserts he was deprived of the ability to claim that a subsequent aggravated murder charge would violate double jeopardy. Parties have a right to raise issues at trial and on appeal upon compliance with applicable court rules. See CrR 8.2; CR 7(b); RAP 10.3(a). Brett, however, does not have a substantial right to raise this particular issue. Moreover, it would be within the Clark County Prosecutor’s discretion whether subsequently to charge Brett with aggravated murder. Lastly, Brett argues he gave up substantial statutory and constitutional rights when he withdrew his objection to the filing of the first amended information and agreed to the stay of counts 3 through 6, and, therefore, he should have been able to plead to the crimes charged in that information. The stay of counts 3 through 6, however, was not disturbed by the filing of the second amended information.

We hold the trial court did not abuse its discretion in allowing the filing of the second amended information and its refusal to accept Brett’s plea of guilty to count 2 of the first amended information.

3. Bill of Particulars and Knapstad Hearing.

Brett’s request for a bill of particulars and for a pretrial hearing under State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986) on the robbery and kidnapping aggravating factors is predicated on the assumption that uncompleted crimes listed in RCW 10.95.020(9) are insufficient to trigger imposition of the death penalty. Because we hold otherwise herein, we need not reach these issues.

As to the concealment aggravator, the record does not indicate what additional information could have been furnished through a bill of particulars. Consequently, there is no lack of notice and no abuse of discretion in denying the request. See State v. Dictado, 102 Wn.2d 277, 286, 687 P.2d 172 (1984).

4. Jury Selection.

Brett contends his constitutional rights were violated by the trial court’s denial of his 12 challenges for cause and his request for additional peremptories. As a result, two jurors challenged for cause served on the jury: Deborah J. Monohan and Mark J. Bowyer.

Under the Sixth Amendment and Const. art. 1, § 22 (amend. 10), a defendant is guaranteed the right to a fair and impartial jury. State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988). To ensure this right, a juror may be excused for cause if his views would " ' "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ ” State v. Hughes, 106 Wn.2d 176, 181, 721 (1986) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985)). See RCW 4.44.170(2). A juror with preconceived ideas need not be disqualified if that juror can set those ideas aside and "decide the case on the basis of the evidence given at the trial and the law as given him by the court.” Rupe, 108 Wn.2d at 748 (quoting Mak, at 707). "Equivocal answers alone” are not cause for dismissal. Rupe, 108 Wn.2d at 749. The trial judge is in the best position upon observation of the juror’s demeanor to evaluate the responses and determine if the juror would be impartial. Rupe, 108 Wn.2d at 749.

We review the trial court’s denial of the challenges for cause of the 12 prospective jurors under an abuse of discretion standard. See Rupe, 108 Wn.2d at 748.

The 12 challenged jurors either had preconceived ideas which favored imposition of the death penalty or gave equivocal answers regarding their views. After careful consideration of the voir dire of each juror, we cannot say the trial court abused its discretion in denying the challenges for cause. All potential jurors stated they could set their ideas aside and decide the case based on all the evidence and on the law as given by the court.

Brett also asserts the State used its peremptory challenges to exclude all jurors who expressed reservations about the death penalty, resulting in a jury that was unconstitutionally death prone. The federal district court case cited by Brett in support of his position was reversed on this ground. See Brown v. Rice, 693 F. Supp. 381 (W.D.N.C. 1988), aff’d, in part, rev’d in part sub nom. Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989), cert. denied, 495 U.S. 953 (1990).

[T]he ordinary rule [is] that a prosecutor may exercise his peremptory strikes for any reason at all” and that a prosecutor may "take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges. . . .”

Brown, 891 F.2d at 496 n.13 (quoting Brown v. North Carolina, 479 U.S. 940, 941, 93 L. Ed. 2d 373, 107 S. Ct. 423 (1986) (O’Connor, J., concurring)).

We decline to address Brett’s claim under Const. art. 1, § 22 (amend. 10) (right to an impartial jury) or Const. art. 1, § 14 (the cruel punishment clause) on this issue because he fails to analyze the factors set forth in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). See State v. Olivas, 122 Wn.2d 73, 82, 856 P.2d 1076 (1993). See also State v. Irizarry, 111 Wn.2d 591, 596-97, 763 P.2d 432 (1988) (Utter, J., concurring).

Guilt Phase

5. Admission of "In Life” Photograph.

Brett contends the trial court erred in admitting an in-life photograph of Kenneth Milosevich. A trial court’s ruling admitting an in-life photograph is reviewed under an abuse of discretion standard. State v. Furman, 122 Wn.2d 440, 452, 858 P.2d 1092 (1993).

Brett argues the photograph was not relevant because the defense offered to stipulate to the identity of the victim.

The State, however, is not required to accept the defense stipulation regarding that element of the crime. See State v. Rice, 110 Wn.2d 577, 598-99, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989).

Brett also asserts the photograph was inflammatory and prejudicial. Photographs are admissible unless their prejudicial effect outweighs their relevance. Rice, 110 Wn.2d at 599. In-life photographs are not inherently prejudicial, especially when the jury also sees " 'after death’ pictures of the victim’s body”. (Footnote omitted.) Furman, 122 Wn.2d at 452.

In this case, the photograph is an 8- by 9-inch image of Mr. Milosevich’s head and neck. He is wearing a baseball cap and a blue coat, and there are evergreen trees in the background. Ex. 1. We agree with the trial court that this photograph, in and of itself, does not evoke sympathy. The photograph simply allows the jury to see what the victim looked like in life. Brett has not shown the trial court abused its discretion in admitting this generic photograph.

6. Admission of Autopsy Photographs.

Brett contends the trial court erred in admitting 4 of the 13 autopsy photographs proffered by the State. He asserts they are prejudicial and inflammatory. "Accurate photographic representations are admissible, even if gruesome, if their probative value outweighs their prejudicial effect.” State v. Crenshaw, 98 Wn.2d 789, 806, 659 P.2d 488 (1983). Photographs have probative value when "they are used to illustrate or explain the testimony of the pathologist performing the autopsy.” State v. Lord, 117 Wn.2d 829, 870, 822 P.2d 177 (1991), cert. denied, 113 S. Ct. 164 (1992). See State v. Sargent, 40 Wn. App. 340, 349, 698 P.2d 598 (1985) (photographs should not be admitted when the same information could be revealed in a nonprejudicial manner). This court, however, looks unfavorably on repetitious, inflammatory photographs. Crenshaw, 98 Wn.2d at 807. The court reviews the admission of autopsy photographs under an abuse of discretion standard. Crenshaw, 98 Wn.2d at 806.

In this case, exhibit 19 shows the victim’s chest wounds. Exhibits 25 and 28 show the injury to the victim’s head with exhibit 28 indicating that the shape of the injury matches the shape of the shot cup from the shotgun. Exhibit 29 shows the wound to the victim’s left thumb.

Dr. Karen Gunson, the deputy medical examiner for the State of Oregon, performed the autopsy on Mr. Milosevich and directed the photographs be taken. Dr. Gunson testified these photographs would aid in explaining her findings to the jury and would present a more accurate representation of the injuries than could be depicted with a diagram. Specifically, she stated the photographs would aid in explaining her opinion concerning the distance of the gun from the wounds.

Dr. Gunson described the wounds and gave her opinion regarding the distance of the muzzle to the wounds prior to showing the photographs to the jury. This procedure is not objectionable. The photographs aided the jury in its understanding of Dr. Gunson’s prior verbal description. In addition, the four admitted photographs were not repetitious or cumulative. Although the photographs could be disturbing, Brett has not shown the trial court abused its discretion in admitting them.

7. Lay Opinion Testimony.

Brett asserts the trial court erred in allowing Katherine Quinn to give her lay opinion that Brett did not appear to be under the influence of alcohol, drugs, or any other substance on the night of the murder. Quinn was the clerk on duty at the convenience store patronized by Brett and Martin just prior to the murder. Brett argues her opinion should not have been admitted, pursuant to ER 701, because Quinn lacked knowledge or information sufficient to form an opinion regarding Brett’s state of sobriety and because her opinion was not helpful in explaining her testimony or the determination of a fact in issue.

The admission of opinion evidence lies within the discretion of the trial court. State v. Weygandt, 20 Wn. App. 599, 606, 581 P.2d 1376 (1978), review denied, 91 Wn.2d 1024 (1979); Hill v. C.&E. Constr. Co., 59 Wn.2d 743, 370 P.2d 255 (1962).

The State contends there was a sufficient foundation for Quinn to give her opinion on Brett’s sobriety because she had been a police officer in Montana for 2 years where she became familiar with the characteristics of people under the influence of intoxicating substances.

ER 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

In this case, Quinn’s opinion was based upon her observation of Brett on two separate occasions on the night of the murder, the second time for approximately 7 to 10 minutes. Quinn’s perception was informed by her prior experience as a police officer in Montana where she had occasion to become familiar with the effects of intoxicating substances. Her opinion was rationally based upon her perception. In addition, the opinion was helpful to the determination of a fact in issue, that of premeditation and intent. Both requirements of ER 701 were met. There was no abuse of discretion in allowing the testimony.

8. Robbery Aggravator.

Brett contends there was insufficient evidence to submit to the jury the aggravating circumstance of robbery in the first degree. Brett contends conduct which establishes that robbery in the first degree has been attempted, but not completed, is insufficient, as a matter of law, to constitute an aggravating circumstance under RCW 10.95.020(9)(a), which provides:

A person is guilty of aggravated first degree murder if he or she commits first degree murder as defined by RCW 9A.32.030(l)(a) . . . and one or more of the following aggravating circumstances exist:

(9) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes:

(a) Robbery in the first or second degree . . ..

(Italics ours.)

Brett argues the term "crimes” requires the murder be committed in the course of or in furtherance of a completed crime because the statute does not refer to attempted crimes. In contrast, Brett points to the felony murder statute, RCW 9A.32.030(l)(c), which expressly provides that one who kills while he "commits or attempts to commit the crime” of robbery is guilty of felony murder.

The State asserts a premeditated murder committed in the course of or in furtherance of a robbery, even when the robbery is not completed, is sufficient to find the existence of an aggravating circumstance. We agree.

The felony murder statute, RCW 9A.32.030(1)(c), provides that when a death occurs in the course of robbery in the first or second degree, or in the course of an attempted robbery, the participants are guilty of felony murder. In contrast, under RCW 10.95.020(9)(a), only premeditated murders committed during the course of robbery are within the scope of the statute. Premeditated murders committed during the course of an attempted robbery are not. Whether the death penalty may be imposed depends upon whether the murder occurs "in the course of ’ the robbery, not whether the robbery was completed or attempted.

Similar statutes have been so construed in Illinois and Georgia. See People v. Walker, 91 Ill. 2d 502, 440 N.E.2d 83 (1982). See also Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718 (1979).

In Illinois, the aggravated first degree murder statute provides:

"(b) Aggravating factors. A defendant * * * who has been found guilty of murder may be sentenced to death if:

* * *

6. the murdered individual was killed in the course of another felony if:

* * *

(c) the other felony was one of the following: . . . robbery . . ..”

Walker, 91 Ill. 2d at 510 (quoting Ill. Rev. Stat. ch. 38, para. 9-1(b)(6)(c) (1977)). The defendant in Walker killed a person in an attempted robbery. After being sentenced to death, the defendant claimed the robbery was not properly used as an aggravator because the statute did not include attempt in its list of crimes triggering the death penalty. The court disagreed and responded:

Whether the murder is committed in association with the actual completion of the aggravating felony or only with the attempted felony is not crucial. The aggravating factor which triggers the application of the death penalty statute is that the murder be committed "in the course of’ the aggravating felony. A murder may be committed "in the course of’ an armed robbery whether or not the actual armed robbery is consummated.

An essential element of an attempt is that the accused perform "any act which constitutes a substantial step toward the the commission of that offense.” It is a question of fact whether "[an] act which constitutes a substantial step toward the commission of’ armed robbery constitutes "in the course of’ an armed robbery, so that that act becomes an aggravating factor authorizing imposition of the death penalty. We again emphasize that the death penalty statute specifies as an aggravating factor that the murder be committed "in the course of’ one of the listed felonies. The statute does not require that the other felony be completed or that the defendant be charged with or convicted of the other felony or an attempted felony.

The death penalty statute does require the State to prove beyond a reasonable doubt the aggravating factor, that is, that the murder was committed "in the course of’ the armed robbery .... This is so whether the defendant has been convicted of armed robbery . . ., or of attempted armed robbery. It is establishing that the murder was committed "in the course of’ the armed robbery in our case that makes the defendant eligible for the death penalty, not the commission of an armed robbery or an attempted armed robbery. . . .

(Citations omitted.) Walker, 91 Ill. 2d at 510-11. The law in Walker was subsequently approved and followed. See People v. Ramirez, 98 Ill. 2d 439, 457 N.E.2d 31 (1983); People v. Free, 112 Ill. 2d 154, 492 N.E.2d 1269, cert. denied, 479 U.S. 871 (1986).

We disagree with Brett’s assertion that People v. Chandler, 129 Ill. 2d 233, 543 N.E.2d 1290 (1989) indicates Illinois’ reversal of its position. Chandler holds the failure to include a particular crime (residential burglary) in the list of enumerated crimes triggering the death penalty renders the death sentence invalid. Here, there is no argument robbery in the first degree is not listed in RCW 10.95.020(9). Whether Brett commits or attempts to commit robbery is not the relevant issue under the statute. The death penalty may be imposed if a premeditated murder is committed "in the course of’ or "in furtherance of’ robbery in the first degree.

We also disagree with Brett’s remaining challenges. First, RCW 10.95.020(9) is not ambiguous requiring an interpretation in Brett’s favor under the rule of lenity. Brett’s interpretation is not reasonable because it would render superfluous the "in the course of, in furtherance of’ language in the statute. See State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993).

Second, allowing uncompleted felonies listed in RCW 10.95.020(9) to constitute aggravating circumstances does narrow the class of death-eligible defendants and provide sufficient guidance to juries as to what constitutes an aggravating circumstance. See Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980). The class includes those persons who commit premeditated murders "in the course of, in furtherance of, or in immediate flight from” one of the listed felonies. The jury was so instructed and returned a special verdict finding Brett guilty of each alleged aggravating circumstance.

Lastly, we have previously rejected the contention that the robbery aggravator merges into the kidnapping aggravator because the intent to facilitate the commission of robbery elevates the crime to kidnapping in the first degree. See RCW 9A.40.020; In re Fletcher, 113 Wn.2d 42, 776 P.2d 114 (1989).

[RCW 9A.40.020] only requires proof of intent to commit various acts, some of which are defined as crimes elsewhere in the criminal code. It does not require that the acts actually be committed. . . . Thus, the Legislature has not indicated that a defendant must also commit another crime in order to be guilty of first degree kidnapping, and therefore the merger doctrine does not apply. As a result, Fletcher may be punished separately for the kidnapping and robbery convictions.

Fletcher, 113 Wn.2d at 52-53.

We hold the trial court did not err in submitting the robbery aggravator to the jury. RCW 10.95.020(9) does not require a listed felony be completed in order to constitute an aggravating circumstance and there was sufficient evidence the murder was committed in the course of robbery in the first degree for the jury to consider that aggravator.

9. Kidnapping Aggravator.

Brett asserts there was insufficient evidence to support the special verdict that the murder was committed in the course of kidnapping in the first degree. The court reviews a challenge to the sufficiency of the evidence in the light most favorable to the nonmoving party to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. See State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).

The kidnapping statute provides:

A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent:

(b) To facilitate commission of any felony or flight thereafter; or

(c) To inflict bodily injury on him[.]

RCW 9A.40.020(1). The jury was instructed on the definition of "abduct” as follows:

Abduct means to restrain a person by using or threatening to use deadly force. Restrain means to restrict a person’s movements without consent and without legal authority in a manner which interferes substantially with that person’s liberty. Restraint is without consent if it is accomplished by physical force, intimidation or deception.

Instruction 25; Clerk’s Papers, at 490.

Brett argues there was no "abduction” because the restraint was incidental to the murder, and the kidnapping merged into the robbery. This court has held and the State concedes that the mere incidental restraint and movement of the victim during the course of another crime which has no independent purpose or injury is insufficient to establish a kidnapping. See Green, 94 Wn.2d at 227 (kidnapping merges into first degree rape); State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d 1249 (1979) (kidnapping merges into first degree rape), cert. dismissed, 446 U.S. 948 (1980). See also State v. Allen, 94 Wn.2d 860, 862-64, 621 P.2d 143 (1980).

There is sufficient evidence in the record, however, to sustain the jury’s verdict that the murder was committed "in the course of, or in furtherance of’ first degree kidnapping. The jury had before it evidence that Brett and Martin planned to kidnap well-to-do older victims, take them to a bank, and later kill them. The pair obtained items to facilitate the planned kidnapping, picked a residence at random, and forced their way into the Milosevich home. The jury could rationally have found Brett and Martin were "in the course of’ a kidnapping when the plan went awry, and Brett murdered Mr. Milosevich.

Viewing the evidence most favorable to the State, there was sufficient evidence for a rational trier of fact to find Brett guilty beyond a reasonable doubt of the kidnapping aggravator.

10. Concealment Aggravator.

Brett also contends there was insufficient evidence for any rational jury to find the murder was committed to conceal the identity of the perpetrator because Mrs. Milosevich was not also killed. The concealment aggravator is established if "the jury is presented with evidence which suggests that the killing was intended to postpone for a significant period of time the discovery of the commission of the crime . . .”. (Italics ours.) State v. Bartholomew, 98 Wn.2d 173, 214, 654 P.2d 1170 (1982) (Bartholomew I), State’s cert. granted and remanded, 463 U.S. 1203, defendant’s cert. denied, 463 U.S. 1212 (1983), reaff’d after remand, 101 Wn.2d 631, 683 P.2d 1079 (1984) (Bartholomew II).

Here, Martin testified Brett felt masks were not needed because there would be no survivors. Although this intent may not have been successfully carried out, there was evidence of such intent. There was also evidence indicating Brett intended to kill both victims but was thwarted because Mrs. Milosevich ran out the front door.

When the evidence is viewed in the light most favorable to the State, a rational trier of fact could find Brett intended to commit the murder in order to conceal the robbery and his identity beyond a reasonable doubt.

Brett also asserts the concealment, if any, either merged into the murder or the aggravators of robbery, kidnapping, and burglary. Brett argues the concealment "inheres in the overall plan to kill with premeditated intent for purposes of committing a robbery/kidnap/burglary”. Br. of Appellant, at 111. Brett cites no authority for this proposition. Intent to conceal a crime or the identity of the perpetrator does not "inhere” in premeditated murder, robbery, kidnapping, or burglary. It is a separate intention from an intent to kill, or from the intent necessary for a robbery, burglary, or a kidnapping.

11. Use of Multiple Aggravators.

Brett asserts the use of more than one aggravating circumstance violates due process, double jeopardy, and the "same criminal conduct” rule, and constitutes cruel and unusual punishment.

Due Process and Cruel Punishment.

Brett argues that allowing the jury to consider the same "indivisible course of conduct” to constitute more than one aggravating factor violates due process and constitutes cruel punishment under Const. art. 1, §§ 3 and 14. Brett cites no Washington cases in support of this proposition, and it is not persuasive. See People v. Harris, 36 Cal. 3d 36, 63, 679 P.2d 433, 449, 201 Cal. Rptr. 782, cert. denied, 469 U.S. 965 (1984); Provence v. State, 337 So. 2d 783 (Fla. 1976), cert. denied, 431 U.S. 969 (1977); White v. State, 403 So. 2d 331 (Fla. 1981), cert. denied, 463 U.S. 1229 (1983); Herzog v. State, 439 So. 2d 1372 (Fla. 1983); State v. Henderson, 109 N.M. 655, 661, 789 P.2d 603, 609 (1990); Engberg v. Meyer, 820 P.2d 70, 89 (Wyo. 1991) (Cardine, J., concurring). See also Cook v. State, 369 So. 2d 1251, 1256 (Ala. 1978); State v. Goodman, 298 N.C. 1, 29, 257 S.E.2d 569, 587 (1979).

In Florida, New Mexico, North Carolina, and Alabama, the courts have invalidated the "doubling up” of aggravators when those aggravators are based on the same aspect of the defendant’s conduct. For example, in Provence v. State, supra, the court held the aggravating circumstances of "murder in the commission of a robbery” and "murder for pecuniary gain” could not validly be considered as two separate aggravating circumstances. Similarly in Wyoming, the court held the underlying robbery of defendant’s felony murder conviction could not be used as an aggravating circumstance. Engberg v. Meyer, supra. But see Blystone v. Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078 (1990) (felony element of felony murder can be a valid aggravating factor). Here, the robbery, burglary, and kidnapping are not based on the same aspect of Defendant’s conduct nor are the aggravators elements of premeditated first degree murder.

Harris is also distinguishable. The Harris court rejected the doubling up of the robbery and burglary aggravators because the California death penalty statute in effect when the defendant was sentenced specified that " '[i]n determining the penalty the trier of fact shall take into account. . . [t]he circumstances of the crime . . .and the existence of any special circumstances found to be true . . ..’ ” Harris, 36 Cal. 3d at 65 (quoting former Cal. Penal Code § 190.3). The court felt that allowing the jury to take into account the crime and the aggravating circumstances "artificially inflated” the defendant’s conduct. Harris, 36 Cal. 3d at 62.

Washington’s death penalty statute and the jury instructions in this case, however, instruct the jury to "[h]av[e] in mind the crime of which the defendant has been found guilty . . .”. RCW 10.95.060(4). The jury is not instructed to consider the crime and separately consider the aggravating factors. Rather, the aggravators describe the circumstances of the "crime” for which Brett was found guilty.

Double Jeopardy.

Brett contends the failure of the court to merge the aggravators into the robbery aggravator violates double jeopardy.

In State v. Laviollette, 118 Wn.2d 670, 675-76, 826 P.2d 684 (1992), this court adopted a 2-step test to determine whether multiple punishments are being exacted for the same offense: (1) the elements of each offense are identical or one is a lesser included offense of the other; or (2) in order to prove an essential element of the offense charged, the State relies on conduct that constitutes an offense for which the defendant has already been prosecuted. Brett argues the second prong is present in this case because the evidence used to prove the robbery aggravator was also used to establish the kidnapping aggravator.

Here, the State need not prove the completed crimes to establish the robbery and kidnapping aggravating circumstances. The State is required to prove only that the murder was committed "in the course of’ those crimes. Therefore, the robbery and kidnapping aggravators are not "charged offenses” for purposes of double jeopardy. In addition, Brett had not "already been prosecuted” on any of the aggravators. There was no double jeopardy violation.

Same Criminal Conduct Rule.

Brett argues allowing the jury to find him guilty of multiple aggravating circumstances arising out of the same conduct violates the "same criminal conduct” rule in RCW 9.94A.400(1)(a) and State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237 (1987). This argument is not persuasive.

Aggravating factors are sentence enhancements; they are not "crimes”, as such. Cf. State v. Kincaid, 103 Wn.2d 304, 312-13, 692 P.2d 823 (1985) (aggravating factors are not elements of first degree murder). Thus, the same criminal conduct provision does not apply to aggravating factors. Moreover, even if applicable, the aggravators of burglary, robbery, kidnapping, and concealment do not require the same objective criminal intent. See Dunaway, 109 Wn.2d at 216 (intent behind robbery distinct from intent behind attempted murder); State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992) ("burglary and kidnapping are not the same criminal conduct because the intent was not the same for both crimes.”). In addition, there were multiple victims of the robbery, kidnapping, and burglary aggravators: both Mr. and Mrs. Milosevich. Multiple crimes against multiple victims are not considered to be the same criminal conduct. Lessley, 118 Wn.2d at 779. Because we find the same criminal conduct rule inapplicable by its terms, we need not address whether the procedural rules in the Sentencing Reform Act of 1981 (SRA) (RCW 9.94A) apply to capital cases.

The trial court did not err in refusing to merge all the aggravators into the robbery aggravator.

Because we find the aggravating factors valid, we need not address Brett’s assertion that the death penalty violates due process, the Eighth Amendment, or Const. art. 1, § 14 when based on invalid aggravators.

12. Instructional Errors.

Brett challenges instructions 9, 13, and 20, alleging they relieved the State of its burden of proof and jeopardized the requirement of jury unanimity. These issues may be raised for the first time on appeal. See State v. Hanson, 59 Wn. App. 651, 800 P.2d 1124 (1990).

The court reviews instructional errors de novo. See State v. Benn, 120 Wn.2d 631, 654-55, 845 P.2d 289, cert. denied, 114 S. Ct. 382 (1993). The court must evaluate each instruction "in the context of the instructions as a whole”. Benn, 120 Wn.2d at 655.

Brett argues instruction 9 relieved the State of its burden of proof because it allowed the jury to find him guilty on both alternatives, felony murder, and premeditated murder, if it found him guilty on either alternative. We disagree.

Instruction 9 lists the elements for premeditated first degree murder in alternative A and the elements for felony murder in alternative B, then provides:

If you find from the evidence that each of the elements in Alternative A or each of the elements in Alternative B has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. All of the elements of only one alternative need be proved. You must unanimously agree as to which one or more of the alternatives, A or B, has been proved beyond a reasonable doubt.

On the other hand, if after weighing all of the evidence, you have a reasonable doubt as to any one of the elements in Alternative A, or as to any one of the elements in Alternative B, then it will be your duty to return a verdict of not guilty on that alternative.

(Italics ours.) Clerk’s Papers, at 471-72. This instruction is not misleading. The jury is expressly informed to reach a decision as to each alternative.

Next, Brett asserts instruction 13 allowed the jury to find the aggravator of robbery in the first degree without a finding that a "taking” occurred, as required by RCW 9A.56.190. Instruction 13 provides:

A person commits the crime of Robbery in the First Degree when in the commission of a robbery or in immediate flight therefrom he or she is armed with a deadly weapon or displays what appears to be a firearm or other deadly weapon or inflicts bodily injury.

Clerk’s Papers, at 476.

Brett argues this instruction relieved the State of its burden to prove every element of the crime beyond a reasonable doubt in violation of the due process clause of the Fourteenth Amendment. See State v. Colwash, 88 Wn.2d 468, 470, 564 P.2d 781 (1977).

The instructions, taken as a whole, did inform the jury of the "taking” element. See Benn, 120 Wn.2d at 655. Instruction 13 must be read in conjunction with instruction 14, which sets forth the elements of robbery, including the taking element. Taken together, the instructions were proper.

As we have held, however, the issue before the jury was not whether a robbery was completed, but whether the murder was committed "in the course of’ the robbery.

Brett also argues instruction 20 misleads the jury and jeopardizes the requirement of jury unanimity on each alternative aggravating circumstance. Instruction 20 provides:

You will be furnished with all the exhibits admitted into evidence and Verdict Forms "A” and "B”.

You must fill in the blank provided for the crime of Murder in the First Degree with the words "not guilty” or the word "guilty”, according to the decision you reach. You must also fill in the words "yes” or "no” in the appropriate space provided, as to which alternative of the crime of Murder in the First Degree the State has proved beyond a reasonable doubt. If the State has proved both alternatives beyond a reasonable doubt, fill in both spaces with the word "yes”.

Since this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in Verdict Form "A” to express your decision. The foreman will sign it.

If and only if you find the defendant guilty of Premeditated First Degree Murder as set forth in Alternative A, in Instruction No. 9 then it will be necessary for you to return a special verdict to the following question:

Did the State prove beyond a reasonable doubt that one or more of the following aggravating circumstances existed?

(a) The defendant committed the murder to protect or conceal the identity of any person committing the crime;

(b) [T]he murder was committed in the course of or in furtherance of Robbery in the First Degree;

(c) The murder was committed in the course of, in furtherance of, or in immediate flight from the crime of Burglary in the First Degree;

(d) The murder was committed in the course of, in furtherance of, or in immediate flight from the crime of Kidnapping in the First Degree.

The State has the burden to prove beyond a reasonable doubt, as previously defined, one or more of the above-listed aggravating circumstances. These aggravating circumstances are alternatives and only one need be proved in order to convict the defendant of aggravated murder in the first degree. You must unanimously agree upon which, if any, of the aggravating circumstances set forth before has been proved beyond a reasonable doubt. You will be provided with a Special Verdict Form "B” for each aggravating circumstance in which you answer "yes” or "no” according to the decision you reach.

If, after fully and fairly considering all of the evidence or lack of evidence you are not able to reach a unanimous decision as to any element of any one of the aggravating circumstances, do not fill in the blank for that alternative.

WTien all of you have so agreed, have the foreman sign Verdict Form "B” and notify the bailiff, who will conduct you into court to declare your verdict.

(Italics ours.) Clerk’s Papers, at 483-85.

The second to the last paragraph clearly informs the jury that if a unanimous decision on each element of an alternative cannot be reached then it is not to "fill in the blank for that alternative.” (Italics ours.) There was no error.

Brett also asserts instructions 24 and 25 misstate the law of kidnapping by failing to inform the jury that a minimal restraint or asportation incidental to a homicide is insufficient to constitute an abduction. See State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). Instruction 24 provides:

A person commits the crime of Kidnapping in the First Degree when he or she intentionally abducts another person with intent to facilitate the commission of any felony, or to inflict bodily injury on the person.

Clerk’s Papers, at 489; RCW 9A.40.020(1). Instruction 25 defines "abduct” and "restraint” as provided in RCW 9A.40.010(1) and (2):

Abduct means to restrain a person by using or threatening to use deadly force. Restraint means to restrict a person’s movements without consent and without legal authority in a manner which interferes substantially with that person’s liberty. Restraint is without consent if it is accomplished by physical force, intimidation or deception.

Clerk’s Papers, at 490.

Brett failed to object to these instructions at trial. He raises the issue for the first time on appeal asserting a constitutional error that the instructions failed to set forth an essential element of kidnapping, lack of incidental restraint. See State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988). Incidental restraint, however, is not an element of kidnapping. Rather, the nature of the restraint determines whether the kidnapping will merge into a separate crime to avoid double jeopardy. See Green, 94 Wn.2d at 227; State v. Johnson, 92 Wn.2d 671, 681, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948 (1980). Brett raises the merger issue in a separate assignment of error.

13. Prosecutorial Misconduct.

Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard. State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986). The defendant bears the burden of "establishing both the impropriety of the prosecutor’s conduct and its prejudicial effect.” (Footnote omitted.) State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092 (1993). Prosecutorial misconduct does not constitute prejudicial error unless the appellate court determines there is a substantial likelihood the instances of misconduct affected the jury’s verdict. State v. Evans, 96 Wn.2d 1, 5, 633 P.2d 83 (1981).

Vouching for Credibility.

Brett argues the prosecutor improperly vouched for the credibility of Mrs. Milosevich during his closing argument. It is improper for a prosecutor personally to vouch for the credibility of a witness. State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985). Prosecutors may, however, argue an inference from the evidence, and prejudicial error will not be found unless it is "clear and unmistakable” that counsel is expressing a personal opinion. Sargent, 40 Wn. App. at 344.

In speaking to the jury about the discrepancy between Mrs. Milosevich’s and Shirley Martin’s testimony as to whether the alarm went into full alarm mode, the prosecutor argued:

And you’re going to have to evaluate credibility on that issue I guess. But I would suggest that one reason you might want to believe Pat Milosevich on that issue is that she at the time those events were occurring was watching her husband of 33 years being blown away by a .410 shotgun. And maybe that’s the kind of scenario of events that she’s going to remember fairly well for the rest of her life. . . .

Report of Proceedings vol. 14 (June 11, 1992), at 25-26. This argument does not set forth a statement of personal belief, as was done in Sargent when the prosecutor stated, "I believe Jerry Lee Brown. I believe him . . .”. Sargent, 40 Wn. App. at 343. Rather, the prosecutor was drawing an inference from the evidence as to why the jury would want to believe one witness over another. This statement was not improper.

Comment on Failure To Testify.

Brett asserts the prosecutor indirectly commented on Brett’s failure to testify in violation of his right to remain silent and to due process. See State v. Belgarde, 110 Wn.2d 504, 511, 755 P.2d 174 (1988); State v. Evans, 96 Wn.2d 1, 633 P.2d 83 (1981). Brett did not object to the challenged statements at trial. If defense counsel fails to object, move for a mistrial, or request a curative instruction, then allegations of improper argument will not be heard on appeal unless the comments are "so flagrant and ill intentioned that no curative instruction could have obviated the prejudice they engendered.’ ” State v. Dunaway, 109 Wn.2d 207, 221, 743 P.2d 1237 (1987) (quoting State v. Kendrick, 47 Wn. App. 620, 638, 736 P.2d 1079 (1987)). Comments by a prosecutor that certain testimony is undenied are not improper as long as there is no reference to who may be in a position to deny it. See State v. Ashby, 77 Wn.2d 33, 38, 459 P.2d 403 (1969); State v. Crawford, 21 Wn. App. 146, 584 P.2d 442 (1978).

"Surely the prosecutor may comment upon the fact that certain testimony is undenied . . .; and, if that results in an inference unfavorable to the accused, he must accept the burden, because the choice to testify or not was wholly his”.. . .

Ashby, 77 Wn.2d at 38 (quoting State v. Litzenberger, 140 Wash. 308, 311, 248 P. 799 (1926)). Prosecutors may also comment on the defendant’s failure to present evidence on a particular issue if persons other than the accused could have testified as to that issue. Ashby, 77 Wn.2d at 38.

Brett asserts the standards set forth in Ashby, Crawford, and Litzenberger are no longer viable because they were decided prior to Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). We disagree. Doyle held that a defendant’s postarrest silence could not be used to impeach a defendant’s exculpatory explanation subsequently given at trial. Doyle does not alter the standard for determining what types of comments by a prosecutor violate a defendant’s due process rights. The defendant’s citation to State v. Fricks, 91 Wn.2d 391, 588 P.2d 1328 (1979) and State v. Evans, supra, are also unpersuasive. Neither case addresses the standards set forth in Ashby, Crawford, or Litzenberger for determining when a comment on the lack of evidence is improper.

Brett challenges the following statements from the prosecutor’s closing argument:

There is absolutely no evidence in this case that that gun was ever jolted, was ever touched, was ever in any way moved to cause the gun to be accidentally discharged. There’s no evidence of that.

Report of Proceedings vol. 14 (June 11, 1992), at 27.

Counsel also said it’s possible and feasible that the defendant used that type of a needle to inject himself [with insulin]. Whether it’s plausible or feasible, there’s no evidence of that. And the evidence from Mr. Eales is directly to the contrary, that in the tens of thousands of cases where he’s watched people inject themselves they’d never used that kind of needle. If you were to judge this case on the evidence, that being plausible and feasible is not part of the evidence.

Report of Proceedings vol. 14 (June 11, 1992), at 62.

In response to a potential suggestion by Brett that the killing was accidental, the prosecutor stated:

Mr. Brett could have offered aid ... he could have at least run out. He could have just said, oh, what have I done and run out of that residence. Shirley, let’s get out of here, a gun went off. Could have called 9-1-1. Could have done that anonymously. Come to this residence, somebody got shot, let’s get out of here Shirley. But what did he do? He took his weapon, and as Ken Milosevich was begging for his life as Shirley said . . . James Brett says you’re going to die . . .. That... is premeditation.

Report of Proceedings vol. 14 (June 11, 1992), at 30.

The first two arguments state there is no evidence the shotgun was accidentally discharged or that Brett used the larger needles obtained from his friend to inject himself with insulin. There were other potential witnesses who could have testified as to these issues. Shirley Martin and Pat Milosevich could have testified if the first shot was due to an accidental discharge. Likewise, Martin or any number of other people could conceivably have known that Brett used the larger needles for his daily insulin injections. See Ashby, 77 Wn.2d at 37-38. The third argument also is not an impermissible comment on Brett’s failure to testify. The prosecutor is asserting Brett’s actions are inconsistent with a person who has accidentally fired a shotgun and are consistent with premeditation.

Comment on Guilt.

Brett contends the prosecutor improperly commented on Brett’s guilt when he stated the felony murder conviction was a "slam dunk”. Report of Proceedings vol. 14 (June 11, 1992), at 16. See State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). Brett did not object to this statement at trial. In addition, when taken in context, the comment was not the expression of the prosecutor’s personal opinion, but a recognition that Brett had conceded liability on the felony murder charge. The prosecutor first told the jury:

With respect to the Felony Murder charge, ladies and gentlemen, I’m not going to spend much time talking about that. Because as you know from the jury selection process, the defense has conceded liability. . . .

Report of Proceedings vol. 14 (June 11, 1992), at 14. Then, the prosecutor stated, "Felony Murder is not an issue for your consideration. I guess in the basketball vernacular it’s a slam dunk.” Report of Proceedings vol. 14 (June 11, 1992), at 16. The comment was not improper under the circumstances of this case.

Robbery Aggravator.

Brett objected to the State’s argument that the robbery aggravator could be found even if the evidence failed to establish a "taking”. The prosecutor’s argument was in accordance with the trial judge’s ruling on this issue and with our holding in this case. There was no error.

Law of Kidnapping.

Brett argues the prosecutor’s closing argument on the law of kidnapping was in error and prejudicial because it failed to inform the jury that a minimal detention which is incidental to a homicide is not considered a kidnapping. See State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). Defense counsel had ample opportunity to object or request any needed curative instruction. As in Dunaway, appellate review is precluded because any prejudice could have been cured by an instruction to the jury. Dunaway, 109 Wn.2d at 221.

Passion and Prejudice.

Brett alleges a number of comments by the prosecutor inflamed the jury with passion and prejudice. Appeals to jury passion are inappropriate. State v. Belgarde, 110 Wn.2d 504, 755 P.2d 174 (1988).

Brett first cites to the prosecutor’s argument that the jury should believe Mrs. Milosevich’s memory of the events because at the time she was "watching her husband of 33 years being blown away by a .410 shotgun.” Report of Proceedings vol. 14 (June 11,1992), at 25. We agree with the trial court’s assessment in overruling Brett’s objection.

As far as the tone and tenor of the argument, I do not feel as a whole that it did violate the motion in limine. I felt that Mr. Curtis was quite restrained. . . .

Report of Proceedings vol. 14 (June 11, 1992), at 37.

Brett also contends the prosecutor inflamed the jury while arguing the second shot was premeditated.

[A]nd I suggest . . . that if you get back in the jury room and even think that wasn’t it nice of Mr. Brett not to shoot Pat Milosevieh when she was running out of the residence, wasn’t that nice of him, remember he had to reload his gun and he had a choice to make because it’s a one-shot weapon. . . . The choice was to reload that weapon and shoot him a second time. It took more than a moment in point of time to reload that weapon.

(Italics ours.) Report of Proceedings vol. 14 (June 11, 1992), at 27.

Lastly, Brett asserts the State’s rebuttal remarks in response to defense counsel’s suggestion that Mr. Milosevieh moved toward the gun were inflammatory.

Again, the evidence is uncontroverted that Pat Milosevich says her husband was moving away from the gun, . . . there’s no evidence that Mr. Milosevich touched the gun or in any way had anything to do with that gun. And so what ? Even if he did move toward the gun, it’s his house. His privacy is being invaded. He and his wife are being robbed. What does that make it? Self-defense? Defendant has a right to shoot Mr. Milosevich because he’s moving toward the gun? I suggest the evidence is not there to suggest he moved toward the gun. But even if he did, has nothing to do with whether or not Mr. Brett premeditatedly and intentionally pulled that trigger the first time, let alone the second time.

(Italics ours.) Report of Proceedings vol. 14 (June 11, 1992), at 63.

These are not the type of comments which this court has held to be inflammatory. See, e.g., Belgarde, 110 Wn.2d at 506-07 (prosecutor stated the American Indian group with which defendant was affiliated was "a deadly group of madmen” and "butchers", and told them to remember " Wounded Knee, South Dakota”); State v. Reed, 102 Wn.2d 140, 143-44, 684 P.2d 699 (1984) (prosecutor said defendant was a liar four times, stated defense had no case, said the defendant was a "murder two”, and implied the defense witnesses should not be believed because they were from out of town and drove fancy cars).

In this case, the prosecutor was making arguments based on evidence adduced at trial. Brett has failed to meet his burden to establish that these comments were improper or that there is a substantial likelihood the jury verdict was affected thereby.

14. Double Jeopardy.

Brett argues his convictions of both first degree felony murder and aggravated first degree murder constitute successive prosecutions for the same criminal conduct and violate the double jeopardy clause of the federal constitution. See XLS. Const. amend. 5.

There is a 2-part test to determine whether a defendant has been unconstitutionally subjected to successive prosecutions for the same offense. See State v. Laviollette, 118 , 826 P.2d 684 (1992) (citing Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990)). Double jeopardy is violated if (1) the charged offenses have identical statutory elements or one is a lesser included offense of the other, and (2) "conduct that constitutes an offense for which the defendant has already been prosecuted” will be used to establish an essential element of an offense charged in a subsequent prosecution. Laviollette, 118 Wn.2d at 676 (quoting Grady, 495 U.S. at 521).

Here, there is no violation of double jeopardy. First degree felony murder is not a lesser included offense of aggravated first degree murder. See State v. Irizarry, 111 Wn.2d 591, 592-96, 763 P.2d 432 (1988). Aggravated first degree murder and first degree felony murder do not have identical statutory elements. Compare ROW 9A.32.030(1)(a) and ROW 10.95.020 with ROW 9A.32.030(1)(c).

We decline to reach Brett’s claim under the state constitution because he fails to make any argument thereunder. See Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 77, 838 P.2d 111, 845 P.2d 1325 (1992).

15. Felony Murder Conviction.

Brett contends his rights to due process and equal protection were violated by the trial court’s failure either to impose sentence on the felony murder conviction prior to the penalty phase or inform the jury on the range of sentences on that offense during the penalty phase. See State v. Henderson, 109 N.M. 655, 789 P.2d 603 (1990). Brett argues this deprived him of the opportunity to use his admission of guilt and the sentence imposed as a potential mitigating factor.

Brett’s argument is not persuasive. The cited language in Henderson was dicta and placed the responsibility on the defendant to request the sentence or instruction on the collateral noncapital offense. Henderson, 109 N.M. at 658-59.

Brett never requested the trial court to sentence him on the felony murder conviction nor attempted to admit the sentencing range during the sentencing hearing. In addition, the defense informed the jury, starting with voir dire, that Brett accepted responsibility for Mr. Milosevich’s death and, during closing, urged the jury to find Brett guilty of felony murder rather than premeditated murder. The defense had every opportunity to use Brett’s admission of guilt as a mitigating factor.

Brett also contends he had a statutory right to proceed to sentencing within 40 days after he attempted to plead guilty to felony murder under the first amended complaint pursuant to RCW 9.94A.110, which provides:

Before imposing a sentence upon a defendant, the court shall conduct a sentencing hearing. The sentencing hearing shall be held within forty court days following conviction. . . .

This argument is without merit. As discussed in issue 2, Brett did not have an absolute right to plead guilty to the first amended information. RCW 9.94A.110 was not triggered at that time. The trial court properly sentenced Brett on the premeditated murder in the first degree with aggravated circumstances and need not have sentenced him on the felony murder as the time would run concurrently. See RCW 9.94A.400.

Penalty Phase

This court reviews claimed errors associated with the sentencing phase of a capital case under heightened scrutiny. State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991) (citing Johnson v. Mississippi, 486 U.S. 578, 584, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988)), cert. denied, 113 S. Ct. 164 (1992). Heightened scrutiny requires "a closer, more careful review of the record, it does not entail a raised standard of review.” State v. Benn, 120 Wn.2d 631, 648, 845 P.2d 289, cert. denied, 114 S. Ct. 382 (1993).

16. Criminal History.

Brett asserts it was error to admit, during the penalty phase, evidence of his juvenile adjudications and adult criminal convictions as nonstatutory aggravators.

Adult Criminal Convictions.

Brett argues admittance of his prior criminal convictions, while constitutionally valid, is not statutorily authorized because Washington’s death penalty statute does not expressly refer to nonstatutory aggravators. See Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983) (Georgia death penalty statute provides for statutory aggravators and aggravators "otherwise authorized by law”). See also Geralds v. State, 601 So. 2d 1157 (Fla. 1992); Wike v. State, 596 So. 2d 1020 (Fla. 1992) (similar Florida death penalty statute interpreted to exclude prior criminal convictions as nonstatutory aggravating circumstances). Brett contends this court improperly held prior criminal convictions were admissible as nonstatutory aggravators in the penalty phase. See Bartholomew I; Bartholomew II.

Washington’s death penalty statute, however, authorizes the jury to consider a defendant’s prior criminal history in the penalty phase. RCW 10.95.070(1) provides:

In deciding the question posed by RCW 10.95.060(4), the jury . . . 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!.]

We find no support for Brett’s contention this provision may only be used as a shield to rebut an assertion that the defendant lacks a significant criminal history, not as a sword when the defendant makes no such assertion. The statute expressly states the jury "may consider” a defendant’s criminal history in determining whether there are sufficient mitigating circumstances to merit leniency. See Bartholomew II, at 642-43; Lord, 117 Wn.2d at 896-97. We also are not persuaded admission of prior convictions must be subject to a balancing test under ER 403 and 404. We have previously indicated and now establish that admission of prior convictions does not necessitate a balancing test because such evidence is "reasonably objective” and "reliable”. Bartholomew I, at 196. We adhere to our decisions in Bartholomew I and Bartholomew II.

Juvenile Adjudications.

Brett argues the use of his juvenile adjudications in the sentencing proceeding was prejudicial. This argument is without merit. RCW 10.95.070(1) expressly provides the penalty phase jury may consider a defendant’s juvenile record. See Lord, 117 Wn.2d at 896-97.

Brett also argues juvenile adjudications which occur prior to age 15 are inadmissible in the penalty phase because the SRA excludes those convictions from being considered by a sentencing judge in a normal felony case. See RCW 9.94A.360(4); RCW 9.94A.030(12). The SRA, however, does not govern the sentencing of capital defendants.

The SRA and RCW 10.95 serve two separate functions and are consistent. See State v. Kron, 63 Wn. App. 688, 694, 821 P.2d 1248, review denied, 119 Wn.2d 1004 (1992). The SRA is a determinate sentencing system for felony offenders. It gives first degree aggravated murder a seriousness score of 15 and provides for two possible sentences, life without parole or death. The statute, however, does not purport to govern or guide penalty phase juries in their sentencing decisions. This function is served by RCW 10.95, which guides and channels the jury’s discretion in reaching an individualized sentencing decision for each defendant convicted of a capital offense.

The use of pre-age-15 juvenile convictions is consistent with this purpose because, along with evidence of mitigating circumstances, it provides the jury a broader understanding of the defendant’s background and character. Cf. State v. McAlpin, 108 Wn.2d 458, 740 P.2d 824 (1987) (prior juvenile conviction excluded by SRA for calculation of standard range may be used to impose exceptional sentence). This court has held the admission of a defendant’s prior criminal convictions is not prejudicial because the information is objective and reliable. Bartholomew I, at 196. This rationale applies equally to pre-age-15 juvenile adjudications.

Lastly, Brett asserts that if this court holds RCW 9.94A.360 is inapplicable to the penalty phase of capital cases, then this exclusion violates equal protection under the state and federal constitutions. He argues that singling out aggravated murder defendants as the sole group to be excluded from RCW 9.94A.360 creates a statutory classification that does not meet the strict scrutiny test. See State v. Rice, 98 Wn.2d 384, 399-400, 655 P.2d 1145 (1982). This argument is not persuasive. The State certainly has a compelling interest to comply with the federal and state constitutions to ensure the death sentence is imposed only upon an individualized consideration of the crime and the defendant. Such individualized consideration includes a determination whether the defendant has "a significant history, either as a juvenile or an adult, of prior criminal activity[.]” RCW 10.95.070(1).

We hold the trial court did not err in allowing the State to introduce evidence of Brett’s prior juvenile adjudications and adult convictions during the penalty phase.

17. Cross Examination of Defense Mitigation Witnesses.

Details of Juvenile Convictions.

Brett argues the prosecutor’s cross examination of three defense mitigation witnesses violated due process by bringing out details of his juvenile convictions. He asserts the prejudicial effect of the evidence outweighed its rebuttal value. See Bartholomew II, at 642-43.

Rebuttal evidence offered by the prosecution will be admitted if "it is relevant to a matter raised in mitigation by defendant” and "the rebuttal value of the evidence outweighs the prejudicial effect. . .”. Bartholomew II, 101 Wn.2d at 643 (quoting Bartholomew I, at 197-98). In State v. Lord, supra, the court adopted the balancing test set forth in ER 403 to determine whether prosecution rebuttal evidence is admissible in the penalty phase. Lord, 117 Wn.2d at 891. Under this standard, " '[although relevant, [rebuttal] evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . .’ ”. Lord, 117 Wn.2d at 891 (quoting ER 403). The court analogized this situation to the evidence rules concerning character evidence which allow a defendant’s character witness to be cross-examined regarding personal knowledge of specific incidents of misconduct. Lord, 117 Wn.2d at 891.

A character witness may not only be asked whether he "has heard” this or that about the defendant, but he may also be asked "Do you know” this or that about the defendant.

Lord, 117 Wn.2d at 891-92 (quoting 5 Karl B. Tegland, Wash. Prac., Evidence § 125, at 450 (3d ed. 1989)). The court concluded, "defense witnesses may be cross-examined concerning anything relevant to a matter raised in mitigation by the defendant, subject to the balancing test.” Lord, 117 Wn.2d at 892. Applying this standard, the Lord court upheld the cross examination of a defense mitigation witness regarding the details of Lord’s prior misconduct after that witness had testified that Lord "was a 'good boy’.” Lord, 117 Wn.2d at 893-94.

In this case, the State’s cross examination was relevant to rebut matters raised by the defense, and the probative value of this evidence was not "substantially outweighed” by its prejudicial effect.

Sandra Youngen, the program administrator with the Division of Juvenile Rehabilitation for the State of Washington at Maple Lane School testified on direct examination as follows:

Q: Based on all of your experiences with James Brett and this was over a period of years, you’re aware that he has been involved in the taking of another person’s life?

A: I am.

Q: When you were provided with that information, did you have any reaction? Did it surprise you?

A: Shocked me.

Q: Based on all your experiences with James, did you think he would ever have been capable of doing that?

A: No. Not taking someone’s life, no. Report of Proceedings vol. 16, at 26. On cross examination, the prosecutor elicited from Youngen that she was aware that as a result of an assault on a staff member at Echo Glen Children’s Center that Brett was convicted of kidnapping in the first degree, assault in the second degree, and escape in the first degree. Then, the prosecutor queried:

Q: And [were you aware] that he [Brett] had snuck up on a staff counselor from behind, placed a tightly wound towel around her mouth and then moved the towel to her throat and strangled her with the towel? Were you aware of that? [Defense objection overruled.]

Q: And that she was bound with electrical cord prior to Mr. Brett escaping?

A: I do recall something about her being bound, yes.

Report of Proceedings vol 16, at 28-29. Youngen then testified that her reaction of shock at Brett’s conviction was based only upon his behavior during his stay at Maple Lane, not on his prior behavior. On redirect, the defense counsel brought up the Echo Glen incident again by asking Youngen whether other youth were involved.

Brett also alleges the trial court erred in allowing the prosecution to cross-examine Jeffrey Johnson and Dr. James Owens regarding the details of the Echo Glen assault.

Johnson was the associate superintendent at Maple Lane while Brett was at that facility. On direct, Johnson testified that Brett was not a threatening person. On cross, the prosecution asked Johnson if he was aware that Brett had previously been convicted of kidnapping, assault, and escape for assaulting a staff worker at Echo Glen and whether he knew the details of the assault. Johnson responded that he knew about the kidnapping but did not know about the strangulation attempt until being subpoenaed.

Dr. Owens was the medical director at Echo Glen Children’s Center during the relevant time period. On direct, Dr. Owens testified he knew about the assault on a staff worker but still felt "[v]ery much” surprised about Brett’s conviction. Report of Proceedings vol. 17, at 163. He also testified that he took Brett home to spend a day with his wife and two sons. On cross examination, the prosecutor asked if Owens took Brett home before or after the assault. He also asked Owens if it was correct that the staff worker was "strangled with a towel”. Owens replied that he understood that was how Brett "got control of her and her keys”. Report of Proceedings vol. 17, at 166.

The evidence regarding the details of the incident at Echo Glen were relevant to rebut each mitigation witness’ testimony that Brett was not a threatening person and/or that it was surprising that he took a person’s life. Brett has not shown the probative value of this rebuttal evidence is "substantially outweighed” by its prejudicial effect. The jury was aware Brett had been convicted of 15 crimes since the age of 12. It was also aware of the violent nature of Mr. Milosevich’s murder. Under "the totality of the circumstances presented to the jury,... no improper evidence was admitted.” Lord, 117 Wn.2d at 895. "Unless the prosecution is permitted to rebut defendant’s evidence, the jury may well approach the crucial sentencing decision with an incomplete picture.” Lord, 117 Wn.2d at 894.

Uncharged Criminal Activity.

Brett also asserts the trial court erred in allowing the prosecution to cross-examine Gwen Blackmon regarding uncharged criminal activity engaged in by Brett and her son. Blackmon is the mother of Brett’s codefendant in a 1983 robbery conviction. On direct, Blackmon testified that "James respected people” and that he was "a real gentleman”. Report of Proceedings vol. 17, at 190. She also stated, "I would never have expected that from James. Burglary, yes. But murder, that’s real hard for me to swallow.” Report of Proceedings vol. 17, at 192. On cross examination, after questioning Blackmon about the 1983 robbery, the prosecutor asked if Brett and her son were "involved in any other crime together”. Report of Proceedings vol. 17, at 193. Blackmon responded:

A lot of small burglaries because they were unsupervised and running at night and they were — had no money, and a lot of times I didn’t see evidence of violence but I heard a lot of talk about it.

Report of Proceedings vol. 17, at 193.

Uncharged criminal activities may not be presented to the jury as a nonstatutory aggravating factor. Bartholomew II, at 642. The prosecutor may, however, introduce evidence to rebut matters raised in mitigation by the defendant subject to the balancing test set forth in ER 403. Bartholomew II, at 642-43; Lord, 117 Wn.2d at 891.

Here, questions regarding Brett’s uncharged criminal activity were relevant because they were used to rebut Blackmon’s testimony that Brett "respected people” and "was a gentleman”. The probative value of this testimony was not substantially outweighed by its prejudicial impact. The jury was aware of the murder committed by Brett and of his prior juvenile and adult convictions. The testimony was not cumulative or graphic in nature. In this context, the rebuttal value of the evidence outweighs its prejudicial impact. See Lord, 117 Wn.2d at 895.

Fatalistic Beliefs.

Brett asserts the prosecutor’s cross examination of Sherry Brett, Brett’s mother, regarding Brett’s fatalistic beliefs violated his right to free religious expression under Const. art. 1, § 11, which provides:

Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion!.]

During the penalty phase, Sherry Brett testified that Brett would have spells of depression and would become violent and self-destructive. On cross examination, the prosecutor followed up on this line of questioning.

Q: Mr. Foister also asked you about the fact that your son gets depressed, and you said that he gets violent and self destructive; is that correct?

A: Yes, he does.

Q: He also presents a rather fatalistic attitude about life; isn’t that correct.

A: Like what? I don’t understand what you’re saying.

Q: Doesn’t he get depressed about things and hasn’t he made a statement to you at least once in the past that within 15 years the end of the world will be here?

A: Yes. I’ve heard him make that statement.

Report of Proceedings vol. 15, at 95. On redirect, defense counsel elicited testimony from Sherry Brett that her son’s fatalistic belief was one of the teachings of the Jehovah’s Witnesses, of which she and her son were followers.

Brett argues the prosecutor’s questioning violated his absolute freedom to religious belief and allowed the jury to draw an adverse inference from his constitutionally protected behavior. See State v. Rupe, 101 Wn.2d 664, 704-05, 683 P.2d 571 (1984). Brett’s argument is not persuasive.

First, impermissible use of constitutionally protected conduct is not a violation of Const. art. 1, § 11, it is a violation of due process. See Rupe, 101 Wn.2d at 706 (citing Zant v. Stephens, 462 U.S. 862, 885-86, 77 L. Ed. 2d 235, 103 S. Ct. 2733, 2747 (1983)). Brett does not allege such a violation. Second, in Rupe, the State’s closing argument emphasized the defendant was a very dangerous man and deserved the death penalty because he owned a collection of firearms, including a semi-automatic rifle. Rupe, 101 Wn.2d at 703-04. Here, the State did not make an adverse inference based upon Brett’s belief nor even address this belief in closing argument. See Rupe, 101 Wn.2d at 705 ("the State may not draw adverse inferences from the exercise of a constitutional right.”). Under these circumstances, Brett’s rights were not infringed.

18. Presumption of Leniency Instruction.

Brett contends the trial court erred by failing to give his proposed instructions 2, 3, and 8 instructing the jury on the presumption of leniency.

The trial court gave the following instruction:

During this special sentencing proceeding, the State has the burden of proving to you beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency and that the death penalty should therefore be imposed.

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief that there are not sufficient mitigating circumstances to merit leniency, you are satisfied beyond a reasonable doubt.

On the other hand, if, after such consideration, you do not have an abiding belief that the State has proved beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency, you are not satisfied beyond a reasonable doubt.

Instruction 3; Clerk’s Papers, at 546.

There is no constitutional right to a presumption of sufficient mitigating circumstances to merit leniency. State v. Benn, 120 Wn.2d 631, 668, 845 P.2d 289, cert. denied, 114 S. Ct. 382 (1993); Mak, 105 Wn.2d at 756. This right is created by statute in Washington. RCW 10.95.060(4). Accordingly, the giving of leniency instructions is consistent with our statutory scheme. See State v. Jeffries, 105 Wn.2d 398, 422, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986); Benn, 120 Wn.2d at 668; Campbell v. Kincheloe, 829 F.2d 1453, 1465-66 (9th Cir. 1987), cert. denied, 488 U.S. 948 (1988). We do not believe the lack of such an instruction, however, confuses or misleads the jury or alters the State’s burden. Although such instructions may provide additional clarification, the State’s burden of proof "necessarily carries with it a presumption in favor of the defendant.” Campbell, 829 F.2d at 1466. See WPIC 31.05 cmt., 11 Wash. Prac. WPIC 353-54 (2d ed. 1994).

19. No Sympathy Instruction.

Brett contends the "no sympathy” instruction violates Const. art. 1, § 3 (due process) and Const. art. 1, § 14 (cruel punishment) and is inconsistent with the "mercy” instruction.

The court gave the following instruction:

You 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 543-44. The Defendant’s proposed instruction deleted the "no sympathy” language.

We upheld an identical instruction under the Eighth and Fourteenth Amendments. In re Rupe, 115 Wn.2d 379, 390, 798 P.2d 780 (1990) (Rupe III).

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. . . .

Rupe III, at 396. In so holding, the majority stated in dicta that "the state constitution could not permit what is forbidden under the United States Constitution.” Rupe III, at 396. In addition, Brett’s conclusion that the Gunwall factors justify broader protections under the state constitution are based on arguments rejected by this court in Rupe III. Lastly, this court has held that mercy, as opposed to sympathy, is a proper mitigating circumstance. See Mak, at 754; Rupe III, at 407-08 (Utter, J., dissenting). See also WPIC 31.03 cmt. (passion, prejudice, and sympathy are emotional considerations, while mercy is based on reason).

20. Duty To Consult Instruction.

Brett argues the penalty phase instructions on jury unanimity are conflicting and could reasonably be interpreted to require unanimity to return a verdict for life in violation of the state death penalty statute, state and federal due process, and cruel punishment clauses. This argument is without merit. The instructions cited by Brett neither conflict nor create the possibility the jury would be misled to believe it must reach a unanimous decision to return a verdict for life without possibility of parole.

The duty to consult instruction provides:

Jurors have a duty to consult with one another and to deliberate with a view to reaching a unanimous verdict, if it can be done without violence to individual judgment. Each of you must decide the case for yourself but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, you should not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous. However, you should not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.

(Italics ours.) Instruction 2; Clerk’s Papers, at 545. When read in its entirety, this instruction does not imply the jury has a "duty” to reach a unanimous verdict for life. The verdict form and instruction 4 clearly inform the jury that if it is unable to unanimously agree, the sentence will be life without parole. The verdict form provides:

[ ] "Unable to Unanimously Agree”

(In which case the defendant shall be sentenced to life imprisonment without possibility of parole)

Clerk’s Papers, at 554. Instruction 4 stated:

If you unanimously answer "no,” or if you are unable to agree on a unanimous answer, the sentence will be life imprisonment without the possibility of parole.

Clerk’s Papers, at 547. Instruction 10 also expressly allows for a nonunanimous verdict.

If all twelve of you are unable to unanimously agree, fill in the answer to the question in the appropriate place on the verdict form. . . .

Clerk’s Papers, at 553.

These jury instructions are not misleading and each informs the jury that it may return a verdict if the jurors are unable to agree.

21. Mitigating Factors Not Relied on by Defense.

Brett contends the trial court erred in giving an instruction in the language of RCW 10.95.070, listing the statutory mitigating factors with the instruction that it could consider "any relevant factors, including but not limited to” those listed. Instruction 4; Clerk’s Papers, at 547. The defense objected to this instruction and took exception to the court’s failure to give its proposed instruction limiting the list of mitigators to those relied on by the defense.

Brett argues these instructions allowed the jury to consider the absence of some mitigators as aggravating circumstances and to place less weight on nonstatutory mitigating factors. These arguments have been consistently rejected by this court. It is "well settled” the jury may be instructed in the language of RCW 10.95.070. See State v. Rupe, 108 Wn.2d 734, 764, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); Mak, at 754; Jeffries, 105 Wn.2d at 422; State v. Campbell, 103 Wn.2d 1, 28, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985); Bartholomew II, 101 Wn.2d at 647; State v. Rupe, 101 Wn.2d 664, 709-10, 683 P.2d 571 (1984). But see WPIC 31.07 cmt. There was no error.

22. Constitutionality of RCW 10.95.070.

Brett asserts RCW 10.95.070 and instruction 4, which incorporates the statutory language, are unconstitutional because the jury is only told that it "may consider any relevant [mitigating] factors”, rather than it shall consider such factors. Brett argues the jury may determine what weight to give to such evidence, but should not have the discretion regarding whether to consider the evidence. Otherwise, he contends, the death penalty statute does not "tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980). In support, Brett relies on Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). We disagree.

In Eddings, the trial court refused, as a matter of law, to consider the capital defendant’s harsh upbringing and emotional disturbance as mitigating factors. The Court reversed the death sentence based on Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), which held:

[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

(Some italics ours.) Eddings, 455 U.S. at 110 (quoting Lockett, 438 U.S. at 604). The Eddings Court stated:

Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Ed-dings proffered on his behalf. . . .

Eddings, 455 U.S. at 113-14.

RCW 10.95.070 and instruction 4 did not preclude the jury from considering any of the mitigating evidence presented by Brett. On the contrary, both the statute and the instruction allow consideration of all such evidence. The jury is allowed to give the evidence little, if any, weight, but this does not run afoul of Eddings and Lockett. The jury was not told to disregard evidence of Brett’s upbringing. There was no error.

Brett also asserts RCW 10.95.070(1), (2), and (6) are unconstitutional because the terms "significant”, "extreme”, and "substantially” are vague and do not sufficiently channel the jury’s discretion. See Godfrey v. Georgia, supra. RCW 10.95.070 provides:

[T]he jury . . . 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;

(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!.]

(Italics ours.) See instruction 4; Clerk’s Papers, at 547.

"Significant” is defined as "having meaning; esp : full of import”. Webster’s Third New International Dictionary 2116 (15th rev. ed. 1971). "Substantial” means "considerable in amount, value, or worth”. Webster’s, at 2280. "Extreme” means "existing in the highest or the greatest possible degree : very great: very intense”. Webster’s, at 807. Defendant contends the jury will apply the terms in an ad hoc manner, essentially, because each term is defined with the use of more than one word. These terms, however, must be read in context. They are commonly understood terms and provide the jury with an adequate measure when considering the mitigating circumstances. The terms "significant”, "extreme”, and "substantially” are not inflammatory nor will jury discretion be set rampant by their use. See State v. Benn, 120 Wn.2d 631, 674-75, 845 P.2d 289, cert. denied, 114 S. Ct. 382 (1993).

23. Prosecutor’s Argument on Brett’s Background.

Brett argues the prosecutor unconstitutionally argued to the jury that the evidence of his upbringing "did not extenuate or reduce Brett’s moral culpability.” Br. of Appellant, at 219. The court reviews allegations of improper argument under an abuse of discretion standard. State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986). The defendant bears the burden of "establishing both the impropriety of the prosecutor’s conduct and its prejudicial effect.” (Footnote omitted.) State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092 (1993). Prosecutorial conduct does not constitute prejudicial error unless the appellate court determines there is a substantial likelihood the instances of misconduct affected the jury’s verdict. State v. Evans, 96 Wn.2d 1, 5, 633 P.2d 83 (1981).

Brett challenges the following statements by the prosecutor:

This background information . . . doesn’t reduce the moral culpability that Mr. Brett must accept for his crime.

Report of Proceedings vol. 18, at 96.

Defense has through numerous witnesses put forward to you the fact that this defendant, Mr. Brett, is institutionalized. And the State will agree he is institutionalized. What does it have to do with the issue before you? How does that reduce his degree of moral culpability? It doesn’t. Being institutionalized is interesting. It’s nice to know that. But it has nothing to do with the question before you. Absolutely nothing to do with it.

Report of Proceedings vol. 18, at 97.

The prosecutor’s arguments were based on instruction 7, which provided:

A mitigating circumstance is any fact, event, information, or condition about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability or which justifies a sentence of less than death, although it does not justify or excuse the offense.

(Italics ours.) Clerk’s Papers, at 550. Brett does not challenge instruction 7. The defense could have argued under the instruction that reduction of moral culpability is only one method in assessing mitigating evidence. The instruction contains a disjunctive which allows a mitigating factor to be any fact, event, or condition "which justifies a sentence of less than death”. The defense’s failure to make this argument does not render the prosecutor’s argument improper or prejudicial.

Brett also argues the prosecutor improperly argued the defendant was not "substantially impaired as a result of mental disease or defect” because he knew right from wrong. He asserts this argument erroneously applied the insanity standard to this mitigating factor. RCW 10.95.070(6). Brett cites to the prosecutor’s statement that "[tjhere is absolutely no evidence in this case that Mr. Brett on December 3rd, 1991, was suffering from any type of mental disease or defect.” Report of Proceedings vol. 18, at 89. The prosecutor argued further that, even if the jury inferred Brett had fetal alcohol syndrome or fetal alcohol effect,

it doesn’t mean anything because Dr. Ryan said people can still make choices. They still make choices, know right from wrong, and they know when they do commit a crime that they shouldn’t be doing it.

Report of Proceedings vol. 18, at 91. The prosecutor never expressly mentioned insanity or RCW 9A.12.010(l)(b), which provides that "as a result of mental disease or defect, the mind of the actor was affected to such an extent that. . . [h]e was unable to tell right from wrong . . .”. In context, the prosecutor’s statements were consistent with his argument that the mitigation evidence did not reduce the moral culpability of the defendant. The defense was free to argue that, although not reducing his moral culpability, evidence of FAS/FAE would nonetheless "justiffy] a sentence of less than death . . .”. Clerk’s Papers, at 550. The prosecutor’s argument was proper and the instruction to the jury was proper. There was no error.

24. Ineffective Assistance of Counsel.

Brett contends he received ineffective assistance of counsel because trial counsel failed to request an instruction on the elements of the aggravating factors and failed to request an instruction on the effect of voluntary intoxication. During oral argument, defense counsel withdrew their allegation of ineffective assistance based on counsel’s failure to obtain an expert to diagnose fetal alcohol syndrome or fetal alcohol effect.

Washington has adopted the 2-prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) for determining whether counsel was ineffective. State v. Leavitt, 111 Wn.2d 66, 758 P.2d 982 (1988); Mak. Under that test, the defendant must show counsel’s performance was deficient and such deficient performance prejudiced the defendant.

The first prong requires a showing that "counsel’s representation fell below an objective standard of reasonableness based on consideration of all of the circumstances.” State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). "[S]crutiny of counsel’s performance is highly deferential and courts will indulge in a strong presumption of reasonableness.” Thomas, 109 Wn.2d at 226. The court must distinguish between tactical decisions and ineffectiveness. In re Jeffries, 110 Wn.2d 326, 752 P.2d 1338, cert. denied, 488 U.S. 948 (1988).

Under the second prong, prejudice is shown when the defendant establishes, with reasonable probability, that but for counsel’s errors the outcome of the proceedings would have been different. Leavitt, 111 Wn.2d at 72. "A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

Brett contends trial counsel’s failure to request instructions on the elements of the robbery, kidnapping, and concealment aggravators constituted ineffective assistance of counsel. He argues aggravators were found to exist when there was no evidence as to particular elements of those crimes. This argument is based on the defense view that only completed crimes may be used as aggravators. Given our contrary holding in this case, there was no error.

Brett also asserts trial counsel’s failure to request a voluntary intoxication instruction constitutes ineffective assistance of counsel. The State counters there was not substantial evidence to support the instruction. Brett disagrees citing to Shirley Martin’s testimony that she and Brett were high during the planning stages and on the day of the crime. There was also conflicting testimony presented by Kathleen Quinn that Brett did not appear to be under the influence of drugs or alcohol on the day of the crime.

Brett cites to State v. Thomas, supra, to support his position. In Thomas, the defendant alleged ineffective assistance because her counsel failed to present a diminished capacity defense based on voluntary intoxication to a charge of attempting to elude a police vehicle. There was substantial evidence that Thomas had been drinking heavily prior to the incident and that she had "blacked out” the event. Under this court’s construal of the felony flight statute, a defendant’s subjective state of mind can be used to rebut an inference created by objective conduct of " ' "wanton and wilful disregard for the lives or property of others . . Thomas, 109 Wn.2d at 227 (quoting State v. Sherman, 98 Wn.2d 53, 59, 653 P.2d 612 (1982)). Trial counsel, however, failed to request a Sherman instruction so that she could use evidence of her intoxication to rebut the inference created by her driving. The court held counsel’s performance was deficient and prejudiced the defendant. The court also characterized the issue as a "close” one. Thomas, 109 Wn.2d at 229.

In the present case, whether trial counsel’s deficient performance prejudiced Thomas is a close issue. On the one hand, her driving objectively indicated the required wanton or willful disregard. On the other hand, the record indicates that Thomas was extremely intoxicated. Given a Sherman instruction, the jury may have determined that her extreme intoxication negated the required wantonness or willfulness. Without the Sherman instruction the jury may well have thought that the objective indication of wanton or willful disregard created by her driving established Thomas’ guilt and, therefore, the jury may never have considered the subjective component of RCW 46.61.024 [the felony flight statute]. Thus, we believe a proper instruction on the subjective component of RCW 46.61.024 was crucial. Accordingly, our confidence in the outcome is undermined such that we cannot say Thomas received effective assistance of counsel. . . .

Thomas, 109 Wn.2d at 229.

The facts regarding Brett’s intoxication are not as substantial as those in Thomas; they are conflicting. Shirley Martin’s testimony, however, was probably sufficient to request a voluntary intoxication instruction. The failure to request such an instruction does not appear to have been a tactical decision given the defense strategy to show Brett’s lack of premeditation. The record, however, does not support Brett’s contention of prejudice because there was overwhelming evidence of premeditation. The jury would have had to find that during all of the planning and implementation of this crime Brett was so intoxicated that it negated the element of intent required for premeditation. Given the weight of the evidence supporting premeditation, Brett fails to show there is a reasonable probability the inclusion of such an instruction would have changed the outcome of the proceedings.

25. Jurisdiction To Impose a Death Sentence.

RCW 10.95.040(2) provides:

The notice of special sentencing proceeding shall be filed and served on the defendant or the defendant’s attorney within thirty days after the defendant’s arraignment upon the charge of aggravated first degree murder . . ..

The defense concedes the State filed a timely notice of intent to seek the death penalty following the filing of the original information. Brett asserts, however, that when the second amended information was filed, the body of the notice only referred to the first amended information. The notice stated:

[The prosecuting attorney] does by this give notice that demand is made for a special sentencing proceeding to determine whether or not the defendant, James Leroy Brett, should have imposed upon him a sentence of death as to Count 1 of the Amended Information filed herein . . ..

Clerk’s Papers, at 206. Brett argues that because the notice refers to the amended information and he was never arraigned on the first amended information, the notice is invalid and the trial court lacked jurisdiction to impose a death sentence. The notice, however, refers to the "Amended Information filed herein”. The second amended information was the only amended information filed with the notice. In addition, the prosecuting attorney referred to the second amended information in his accompanying affidavit.

An Amended Information was filed with this court on March 27, 1992, and a "Second Amended” Information was filed on April 26, 1992, Count I of which continues to charge the defendant with the crime of Aggravated Murder in the First Degree

I continue to have reason to believe . . . that there are not sufficient mitigating circumstances in this case to merit leniency.

(Italics ours.) Clerk’s Papers, at 207-08.

The notice of intent to seek the death penalty can only be referring to the second amended information. On April 16, 1992, the day Brett was to be arraigned on the first amended information, the court granted the State’s motion to file the second amended information. Brett was arraigned on that information, and the notice to seek the death penalty was filed on that day. The State complied with the requirements of RCW 10.95.040(2).

26. Motion for Continuance.

On June 17, 1992, the defense moved for a continuance of the penalty phase proceedings for 1 month to secure an expert to evaluate whether Brett suffered from fetal alcohol syndrome or fetal alcohol effect. Defense counsel asserted they learned of this potential issue after Brett’s mother testified during the penalty phase that she drank heavily during her pregnancy. Thereafter, defense counsel consulted with medical staff at the Oregon Health Sciences University and after initial indications they would be available, counsel was advised on June 12, 1992, that the staff would not assist due to potential liability concerns. Defense counsel contacted the offices of Dr. Sterling Clarren in Seattle, but was advised the doctor was on vacation until June 26, 1992. Dr. Sabin, a pediatrician in Portland able to diagnose FAS/FAE, was then contacted but was unable to assist on such short notice and would need 2 to 4 weeks to schedule an evaluation.

The State objected to the continuance arguing the defense had over 6 months to prepare the case, had experts appointed on an ex parte basis from an independent judge to allow for confidentiality in its investigation, and had not notified the State that any expert was to be called. The State also asserts the defense was not surprised by Mrs. Brett’s testimony regarding her alcoholism. Mrs. Brett was available to the defense since the inception of the.case and the defense conducted voir dire with the jury about the issue of fetal alcohol syndrome. In addition, in its motion for a hearing to take additional evidence, the defense submitted an affidavit from defense counsel indicating knowledge of this issue since the middle of April 1992.

The State also asserts that after the ex parte file was opened, the prosecutor consulted with Robert Stanulis, a neuropsychologist retained by the defense. Dr. Stanulis informed the prosecutor that the effect on a person suffering from fetal alcohol syndrome is subnormal intelligence, and the cause of that deficiency is irrelevant in determining whether the deficiency would be considered a mitigating circumstance. The State added that evidence of Brett’s lower intelligence was already before the jury, and the cause of his mental deficiency was irrelevant. Dr. Stanulis was subsequently not called as a witness by the defense.

The trial court denied the motion stating:

As far as the fetal alcohol syndrome being a proximate cause, if you will, of what took place, I don’t know — that’s what Mr. Curtis [prosecutor] was talking about, was basically its relevance in that regard. The issue of course is mitigation .... So the concern is whether or not the jury will crank this into their thought processes and determine whether or not it should be life without parole or the death penalty.

But that gets me back to the issue of even if an expert says, yes, James does have fetal alcohol syndrome or fetal alcohol effect, the issue is whether or not that would excuse the act or as to whether or not it would explain as Mr. Dane [defense counsel] so aptly put it in opening statement. The jury has heard about Sherry Brett’s drinking. That’s a credibility issue.. . . We know that James’ behavior according to the memo that Mr. Foister [defense counsel] has given may exhibit certain characteristics that are consistent with fetal alcohol effect. The expert that you call can testify that these are the symptoms. I presume you got this data in the memo that these are the symptoms of fetal alcohol syndrome or fetal alcohol effect, and you can argue to the jury that these are the symptoms of fetal alcohol effect. Sherry Brett says she was drinking. These are the symptoms that James has portrayed. And, therefore, ladies and gentlemen, it’s a logical conclusion or inference that James was suffering from fetal alcohol syndrome or fetal alcohol effect and ask for mercy on that basis.

I don’t think the fact that we’re not bringing the experts in to testify that James, in fact, has fetal alcohol syndrome or fetal alcohol effect is going to be that crucial to the argument that you’re going to put before the jury. And I think when I weigh that versus the abatement of the case for up to 30 days — and when we say 30, we’re probably talking longer — I think it would be an injustice to the State and to the victim. So I will deny the motion.

Report of Proceedings vol. 17, at 149-50.

Following denial of the motion, the parties agreed the defense could argue the inference to the jury, the State could inform the jury there was no diagnosis, but it could not comment as to why there was no diagnosis.

The court reviews the denial of a continuance under an abuse of discretion standard. State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985).

Under the circumstances in this case, the trial court did not abuse its discretion in denying the continuance. The defense presented testimony from Dr. Ryan, a chemical dependency and mental health counselor, regarding the symptoms exhibited by persons suffering from FAS and FAE and the causative factors leading to those conditions. Testimony was presented regarding Brett’s upbringing and behavior which allowed the defense to argue and the jury to infer that Brett suffered from FAS or FAE.

In addition, a diagnosis of FAS /FAE, according to defense retained expert Dr. Stanulis, would place nothing more than a label on Brett’s lower intelligence and behavioral problems, evidence which was already before the jury. With or without the diagnosis or label, the defense could argue that such evidence mitigated in favor of the lesser sentence.

Although this is a capital case and we review alleged errors in the penalty phase with heightened scrutiny, the standard of review is not raised. State v. Benn, 120 Wn.2d 631, 648, 845 P.2d 289, cert. denied, 114 S. Ct. 382 (1993). After carefully reviewing the record, we are not persuaded the trial court abused its discretion in denying the motion for the continuance. An affirmative diagnosis was not certain, the defense was free to argue Brett suffered from FAS/FAE, and Dr. Stanulis indicated a diagnosis would add nothing further to the evidence of Brett’s lower intelligence and behavioral problems, evidence which was already before the jury.

27. Constitutionality of RCW 10.95.

Brett asserts RCW 10.95 is unconstitutional because it provides inadequate standards to guide the prosecutor’s discretion to seek the death penalty. This argument has been "repeatedly rejected” by this court. Benn, 120 Wn.2d at 667. Next, Brett "adopts and incorporates by reference” 13 arguments advanced by the appellants in previous capital cases: (1) RCW 10.95 violates the separation of powers doctrine; (2) RCW 10.95 violates the state and federal equal protection clauses; (3) RCW 10.95 is void for vagueness; (4) RCW 10.95 constitutes cruel and unusual punishment; (5) RCW 10.95 promotes unequal administration of the law in violation of the Fourteenth Amendment; (6) the Defendant should have been charged by indictment rather than information; (7) the combined effect of RCW 10.95.040 and not obtaining an indictment exacerbates the separation of powers problem; (8) RCW 10.95 amounts to a mandatory death penalty statute; (9) RCW 10.95.060 unconstitutionally shifts the burden to the defendants; (10) RCW 10.95 denies a defendant the right to effective appellate review because it does not require the jury to articulate which mitigating circumstances were found and how they were weighed; (11) RCW 10.95.020 violates due process, rights to a fair trial, effective assistance of counsel, and confrontation by failing to provide a defendant with the right to rebut information given to the trial judge; (12) RCW 10.95.020 is unconstitutional because it fails to narrow the class of persons eligible for the death penalty; and (13) the process of death qualifying the jury violates the guaranties to a fair and impartial jury under the state and federal constitutions.

We decline to address these issues based solely upon incorporated arguments. See RAP 10.3(a)(5) (brief must include argument as well as citation to legal authority); State v. Lord, 117 Wn.2d 829, 916, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). We note, however, these argumerits have been previously rejected. See State v. Campbell, supra (issues 1 through 4); State v. Rupe, supra; State v. Dictado, 102 Wn.2d 277, 687 P.2d 172 (1984) (issue 5); State v. Ng, 104 Wn.2d 763, 713 P.2d 63 (1985) (issue 6); State v. Jeffries, supra (issues 7 through 11); Bartholomew I; Bartholomew II; State v. Kincaid, 103 Wn.2d 304, 692 P.2d 823 (1985) (issue 12); State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988); State v. Hughes, 106 Wn.2d 176, 721 P.2d 902 (1986); State v. Kron, 63 Wn. App. 688, 821 P.2d 1248 (issue 13), review denied, 119 Wn.2d 1004 (1992).

28. Sufficiency of the Evidence.

Brett argues there was insufficient evidence to support the jury’s verdict of death. The court reviews the evidence in the light most favorable to the prosecution to determine if any rational trier of fact could have found sufficient evidence to justify the verdict beyond a reasonable doubt. State v. Rupe, 108 Wn.2d 734, 765, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); Benn, 120 Wn.2d at 677.

Brett argues the jury’s verdict was not justified because the killing did not involve prolonged torture or viciousness; Brett was raised by a neglectful, alcoholic mother and several alcoholic stepfathers; he was institutionalized and would sabotage his gains to return to a more structured environment; he had a low intelligence and might suffer from FAS or FAE; he helped a Maple Lane counselor in a potentially dangerous situation involving another juvenile inmate; and he was capable of being a gentle caring person to his nephews and Martin’s son.

Weighing against these mitigating circumstances is the crime of which Brett was found guilty. See RCW 10.95-.060(4). The crime that was planned was horrendous, including injecting a toxic substance into the victims’ heads to kill them. The actual killing involved picking a house at random, shooting the occupant, Mr. Milosevich, in the chest in front of his wife, and reloading the weapon and shooting him again in the back of the head while Mr. Milosevich pleaded for his life. Although the plan went awry, the murder was planned, items were obtained to facilitate the crime, and steps were taken to cover up the crime. The crime was committed in the course of a burglary, robbery, and kidnapping, and to conceal the identity of the perpetrators.

Given the nature of the crime, its planning, and the number of aggravating factors, a rational trier of fact could find insufficient evidence to merit leniency beyond a reasonable doubt. We hold there was sufficient evidence to justify the jury’s verdict.

29. Proportionality Review.

RCW 10.95.130(2)(b) provides this court must determine:

Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. For the purposes of this subsection, "similar cases” means cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120[.]

Brett contends proportionality review cannot be conducted on a principled basis because the "universe” of cases from which "similar” cases are drawn for comparison is not reliable. He asserts the "universe” includes cases from two invalid death penalty statutes, cases where sympathy instructions were allowed, cases where proportionality review was not conducted, and cases where review was conducted when the "universe” was smaller. Brett also asserts the "universe” is incomplete because under the former death penalty statute defendants could avoid the death penalty by pleading guilty. Brett further contends trial court reports do not contain adequate information regarding mitigating circumstances. Lastly, he argues there is no definition for what makes a case "disproportionate”.

Recently, a Federal District Court held Washington’s proportionality review violates a defendant’s procedural due process rights because RCW 10.95.130 "does not establish adequate standards or guidelines on which the Court or the parties can rely.” Harris v. Blodgett, 853 F. Supp. 1239, 1288 (W.D. Wash. 1994). The court cited five reasons for its ruling: (1) the death penalty statute does not define what cases are "similar” or what other factors, such as age, race, sex, pregnancy, should be considered; (2) there is no procedure for the parties to be notified as to which cases, or types of cases, the court may consider similar until the decision is published; (3) the statute does not provide an alternate procedure when no similar cases are found; (4) the statute does not give any standard for reviewing the selected cases; and (5) there is no procedure for factfinding as part of the sentence review. Harris, at 1288-90.

Without determining the merits of these challenges under this court’s current proportionality review, we take this opportunity to revisit the development of such review in Washington and evaluate the continued viability of our present approach. In the past, the court has struggled with conducting proportionality review. See, e.g., Benn, 120 Wn.2d at 679. This difficulty stems in part from attempting to define "similar cases” without adopting a standard which requires, in essence, mathematical identity. The court has taken an increasingly broad approach to its definition of similar cases, replacing the comparison of aggravating factors with the search for family resemblances. See Lord, 117 Wn.2d at 908-11. We still recognize, however, "the difficulties inherent to the identification of 'similar cases’ ” while utilizing the family resemblances approach. Benn, 120 Wn.2d at 691.

The court has also struggled to define what makes a case proportional. We adopted the current test by reference to Georgia’s interpretation of its death penalty statute.

[TJhis court is not required to determine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not "wantonly and freakishly imposed,” . . .[.]

Lord, 117 Wn.2d at 909 (quoting State v. Harris, 106 Wn.2d 784, 798, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987), writ of habeas corpus granted sub nom. Harris v. Blodgett, 853 F. Supp. 1239 (W.D. Wash. 1994). See Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829 (1975), cert. denied, 428 U.S. 910 (1976), habeas corpus granted in part sub nom. Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981), aff’d in part, rev’d in part sub nom. Moore v. Balkcom, 716 F.2d 1511 (11th Cir. 1983). The court has continued to broaden its approach to proportionality review by focusing on two systemic problems in death sentencing that such review was meant to avoid: random arbitrariness and death sentences based on the defendant’s race. Benn, 120 Wn.2d at 680 (citing Lord, 117 Wn.2d at 909).

The origins and purpose of proportionality review support the broad approach taken by this court and suggest an even broader review is constitutionally permissible, more faithful to the literal language of RCW 10.95.130, and not subject to the types of challenges posed by Brett and those upheld in Harris v. Blodgett, supra.

Prior to the Supreme Court’s opinion in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (per curiam), jurors had "untrammeled discretion” to impose the death penalty. Furman, 408 U.S. at 248 (citing McGautha v. California, 402 U.S. 183, 28 L. Ed. 2d 711, 91 S. Ct. 1454 (1971)). The Furman Court, for the first time, held the jury’s unguided discretion to impose the death penalty violated the Eighth and Fourteenth Amendments by allowing the death penalty to be "wantonly and . . . freakishly” imposed. Furman, 408 U.S. at 310 (Stewart, J., concurring).

In response to Furman, Georgia amended its death penalty statute to provide the standards which would guide the jury’s discretion in imposing the death penalty. The statute required appellate review, including a determination "whether the sentence is disproportionate compared to those sentences imposed in similar cases.” Gregg v. Georgia, 428 U.S. 153, 198, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (joint opinion). These standards were upheld.

The Court was clear, however, that the procedures adopted by Georgia were not the only procedures which would be permissible under Furman.

We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns.

(Footnotes omitted.) Gregg, 428 U.S. at 195. In upholding Georgia’s statutory scheme, the Court focused on the standards provided to guide the jury’s discretion.

The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines.

(Italics ours.) Gregg, 428 U.S. at 206-07.

Washington’s death penalty statute similarly focuses the jury’s attention on the nature of the crime and characteristics of the defendant. See ROW 10.95.060. As in Gregg, the legislative guidelines contained in RCW 10.95 within which the jury must exercise its discretion ensure proportionality and eliminate the ability of the jury, in all but the most aberrant case, to impose the death sentence in a wanton and freakish manner. Thus, our review, to be constitutionally sufficient, need only find that aberrant or "disproportionate” case. RCW 10.95.130(2)(b).

With this perspective, the range of similar cases need not be narrowly defined based upon the number of aggravators or even family resemblances. Rather, "similar cases” means exactly what the Legislature defined them to mean:

"[SJimilar 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). The Legislature has determined these cases are sufficiently similar so that a "disproportionate” case can be recognized therefrom.

In Gregg, the Court noted the Supreme Court of Georgia had reduced death sentences to life imprisonment for defendants convicted of the capital crimes of rape and armed robbery because prior cases showed juries would only rarely impose the death sentence for those crimes. Gregg, 428 U.S. at 205-06. The Court stated further:

If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.

Gregg, 428 U.S. at 206. Washington’s statute, however, does not contain a myriad of capital crimes. It allows the death penalty only for one "kind” of murder, premeditated first degree murder with aggravating circumstances. There is no constitutional requirement that we define this concept further, that is, categorizing different "kinds” of murder based upon family resemblances. In addition, RCW 10.95.020 does not weight aggravating circumstances, such that one type of aggravator makes the crime a separate "kind” of murder.

The Eighth and Fourteenth Amendments mandate that capital sentencing procedures channel the jury’s discretion by focusing the jury’s attention on the particular nature of the crime and characteristics of the defendant. See Gregg, 428 U.S. at 206-07. Appellate proportionality review provides a "check” or "additional assurance” against arbitrary imposition of the death penalty. Gregg, 428 U.S. at 206-07. These requirements are met in Washington.

The legislative guidelines contained in RCW 10.95 ensure proportionality in the first instance by focusing the jury on the crime and the defendant. On review, RCW 10.95.130 requires this court to determine whether the death sentence is "disproportionate” based on the broad range of "similar cases”, as defined by the Legislature. RCW 10.95.130(2)(b). The lack of a detailed comparison of cases which we have conducted in the past will not render this review an "empty ritual” because we recognize its purpose is not meant to ensure proportionality in the first instance. Benn, 120 Wn.2d at 709 (Utter, J., dissenting). Gregg teaches the legislative guidelines in RCW 10.95 serve that function. Rather, our review must determine whether a death sentence is disproportionate.

The circumstances under which a death sentence might be disproportionate or wanton and freakish, given the guidelines contained in RCW 10.95, are limited. We can, however, conceive of circumstances under which a death sentence could be challenged as disproportionate. Comment on such circumstances must await the cases and controversies which squarely present those issues.

This "disproportionality” review is not subject to the challenges raised by Brett and those upheld in Harris v. Blodgett, supra. Using the legislative definition of "similar cases” alleviates the due process concerns expressed in Harris v. Blodgett, supra. Refocusing the review to ascertain only whether a death sentence is wanton and freakish based upon the broad range of aggravated murder cases provides a more reliable and justifiable standard of "disproportionality” and renders negligible the effect of slight deviations in the universe of "similar cases”. The function of the review is limited to providing "additional assurance” that a sentence is not disproportionate, rather than ensuring proportionality in the first instance. See Gregg, 428 U.S. at 206-07. That function is inherent in the guidelines contained in RCW 10.95. In addition, this method of review does not require the parties or the court to ascertain, in essence, mathematical proportionality. There is no constitutional or statutory requirement to ensure an unattainable degree of identity among particular cases which are invariably unique.

We review whether Brett’s sentence is disproportionate under this standard. Consequently, we need not limit our review to subcategories of aggravated murders to determine whether Brett’s sentence was excessive or disproportionate. Rather, the court looks to all "similar cases”, as legislatively defined, to ascertain whether the imposition of death in this case is disproportionate.

Initially, we point out the guidelines contained in RCW 10.95 channeled the jury’s discretion. The jury was properly instructed regarding the aggravating and mitigating factors it could consider in exercising its discretion to impose the death penalty.

After carefully reviewing the totality of similar cases, we hold Brett’s death sentence is not disproportionate. There is no unique or distinguishing characteristic of the Defendant or of this crime which makes imposition of the death penalty wanton and freakish. Our decision is not altered by cases in which the jury exercised its power and declined to impose the death penalty.

Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.

Gregg, 428 U.S. at 203. Unless and until juries consistently decline to impose the death sentence, specific instances of mercy cannot be used to establish disproportionality. See Gregg, 428 U.S. at 205-06.

We hold the imposition of the death penalty in this case is not excessive or disproportionate considering the crime and the Defendant.

30. Passion or Prejudice.

The majority of Brett’s argument supporting his allegation of passion and prejudice involves errors addressed in other parts of his appeal. These errors cannot be reiterated as support for a passion and prejudice argument. Benn, 120 Wn.2d at 693; Lord, 117 Wn.2d at 915. Brett asserts one independent ground supporting this issue. He contends the prosecutor inflamed the jury by invoking the jurors’ fears of random violence by the following argument:

Another thing that I would ask you to consider, ladies and gentlemen, about this crime and why this crime is so aggravated is the randomness and the total innocence of the victims in this case, Ken and Pat Milosevich. You’ve heard from witnesses in this case, Mrs. Stahl, the neighbor down the street, Mr. Coleman, the neighbor to the north where Pat Milosevich went to call 9-1-1, Mrs. Wasser, the neighbor to the south, who didn’t hear anything that night, that any one of them could have been Ken Milosevich. It was pure luck of the draw on December 3rd. And it could have been Ken Milosevich on this witness stand testifying about any one of those people that night. And that’s something that I think bothers all of us, that unknowing, the fact that it could happen to anybody.

Report of Proceedings vol. 18, at 99.

Arguments which may evoke an emotional response are appropriate if the prosecutor restricts his argument to the circumstances of the crime. See State v. Rice, 110 Wn.2d 577, 608-09, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989). Here, the evidence established the random nature of the act. The argument was based on this evidence and was not overemphasized. Although the prosecutor’s argument steps close to the line of impropriety, it does not cross the line into passion and prejudice.

We affirm the conviction and the imposition of the death sentence.

1 To the extent Brett’s counsel may be faulted for not contacting experts earlier, their failure to do so should be deemed to constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). See State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987).