State v. Rice

¶1(dissenting) — I would reverse Rice's sentence based on serious errors committed at the sentencing phase of his trial. The prosecutor improperly argued to the jury to sentence Rice using the point of view of the children he killed. Additionally, Rice had a right to be present at the rendering of the verdict, and he did not waive that right. We may not assume the trial court's error to be harmless.

¶2I

¶3The majority holds that it was proper argument for the prosecutor to urge the jurors to place themselves in the shoes of the two children. Majority, at 608. It relies on a California case holding that assessment of the offense from the victim's viewpoint is improper at the guilt phase, but "germane to the task of sentencing." Majority, at 608, quoting People v. Haskett, 30 Cal. 3d 841, 863-64, 640 P.2d 776, 180 Cal. Rptr. 640 (1982). This is not the law in Washington, and it also is inconsistent with the United States Supreme Court's latest analysis under the eighth amendment to the United States Constitution. Booth v. Maryland,_U.S._, 96 L. Ed. 2d 440, 107 S. Ct. 2529 (1987) (holding a "victim impact statement" at the sentencing phase of a capital case irrelevant and prejudicial).

¶4In Washington, the sentencing structure is intended to penalize defendants in proportion to the magnitude of their crimes. RCW 9.94A.010. The United States Supreme Court also holds that the jury's determination in the sentencing phase of a capital case must focus only on the individual characteristics of the defendant and the crime; the impact of the crime on the victim or the victim's family are not *630relevant to sentencing. Booth, 96 L. Ed. 2d at 449. To hold otherwise would invite arbitrary imposition of the death sentence and violate the eighth amendment to the United States Constitution. Booth, 96 L. Ed. 2d at 448. Victims of any type of crime are the most sympathetic objects of any criminal procedure. Their desires with respect to sentencing of defendants, however, whether for mercy or revenge, may not, under the holding in Booth, be considered on the issue of the death sentence.

¶5The majority cites both Booth v. Maryland, supra,and Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985), vacated and remanded, 106 S. Ct. 3325 (1986), to support its holding that the prosecutor's argument was proper. However, both those cases support the opposite conclusion. In Booth, the Court held inadmissible a "victim's impact statement" which presented to the jury the full impact of the defendant's act on the family of the victims. The Court held:

While the full range of foreseeable consequences of a defendant's actions may be relevant in other criminal and civil contexts, we cannot agree that it is relevant in the unique circumstance of a capital sentencing hearing. In such a case, it is the function of the sentencing jury to "express the conscience of the community on the ultimate question of life or death." . . . When carrying out this task the jury is required to focus on the defendant as a "uniquely individual human bein[g]." The focus of a [victim impact statement], however, is not on the defendant, but on the character and reputation of the victim and the effect on his family. These factors may be wholly unrelated to the blameworthiness of a particular defendant.

¶6Booth, 96 L. Ed. 2d at 449. Here, the prosecutor's argument asked the jury to place itself in the shoes of the victims. This is even greater error than the admission of evidence of the crime's effect on the victims; it has the jury take the perspective of the victims rather than an objective perspective on the culpability of the defendant.

¶7*631Similarly, in Brooks, at 1409, the 11th Circuit Court of Appeals held it improper for the prosecutor to focus excessively on characteristics of the victims. To go beyond focusing on attributes of the victim, and to take the victim's perspective of the crime in determining the sentence is not within the scope of argument the Brookscourt found permissible.28

¶8The argument to place oneself in the shoes of the victim is similar to the "golden rule argument": do to the defendant as you would wish to be done for you if you were the plaintiff. Here the argument is essentially the same: do to the defendant as you would wish to be done for you if you were the victim. Golden rule arguments are universally held improper because they are inflammatory. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 750 P.2d 1257 (1988); Delaware Olds, Inc. v. Dixon, 367 A.2d 178, 179 (Del. 1976). The majority seems to hold that such inflammatory argument is impermissible in civil cases, but permissible in determining a criminal sentence. See footnote 17. To the contrary, the need to reduce passion and prejudice is more crucial at the sentencing phase of a capital crime than at any other event in the judicial system.

¶9In considering aggravating or mitigating factors, it is entirely proper for the jury to consider the nature of the crime, including if it was particularly cruel, as it was here. RCW 10.95.060(4). However, this must be limited by what the United States Supreme Court has declared are the constitutional barriers. It was error for the prosecutor to urge the jury to use the children's perspective in determining punishment.

¶10II

¶11The majority wrongly finds no error in the rendering of the verdict in Rice's absence. Rice had a constitutional right to be present, which he did not waive. The rendering *632of the verdict in his absence also violated the explicit terms of CrR 3.4.

¶12Washington, both before and after statehood, has recognized the right of criminal defendants to be present at every stage of trial, including the rendering of the jury verdict, as a fundamental right. Shapoonmash v. United States, 1 Wash. Terr. 188 (1862); State v. Costello, 29 Wash. 366, 69 P. 1099 (1902); State v. Schafer, 156 Wash. 240, 286 P. 833 (1930). The right is guaranteed by Const, art. 1, § 22 (amend. 10), which provides in relevant part, "In criminal prosecutions the accused shall have the right to appear and defend in person ..." The right is also protected by the sixth and fourteenth amendments to the United States Constitution, as well as the common law. See Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970); 8B J. Moore, Federal Practice ¶ 43.02[1] (2d ed. 1988).

¶13The common law rule accepted in nearly every jurisdiction is that in capital cases a criminal defendant must be present at the rendering of the verdict, and this right may not be waived. An "overwhelming weight of authority" sustains the following propositions:

First. In the trial of all felonies, not capital, where the defendant is on bond, and has been present throughout the delivery of the testimony, up to the rendition of the verdict, but is absent at the rendition of the verdict voluntarily, he will not be permitted to avail himself of his own wrong in being thus voluntarily absent, but the verdict may be properly received in his absence. In other words, he may waive the right to be present when the verdict is received, which is not, as seems popularly supposed, a constitutional right, though a very sacred right, secured by the common law as well as by statute.

Second. Wherever the charge is a capital one, the courts have held uniformly, in favorem vitae, that the defendant cannot waive his right to be present, and that whether he be in jail, subject to the power of the court to produce him, or on bond, it is fatal error to receive the verdict in his absence.

Third. Even in felonies not capital, if the defendant be in jail when the verdict is received, it is fatal error.

*633Fourth. In cases not capital, the right of the defendant, where he is on bond, to waive his own presence when the verdict is received, is strictly his personal right, and no such waiver can be exercised for him by his own counsel.

¶14(Italics mine.) Sherrod v. State, 93 Miss. 774, 778, 47 So. 554 (1908); see also Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925); People v. La Barbera, 274 N.Y. 339, 8 N.E.2d 884 (1937); Annot., Absence of Accused at Return of Verdict in Felony Case, 23 A.L.R.2d 456 (1952), and cases cited therein.

¶15The United States Supreme Court reached the same conclusion in Diaz v. United States, 223 U.S. 442, 56 L. Ed. 500, 32 S. Ct. 250 (1912). In Diaz, the Court stated in dicta:

In cases of felony our courts, with substantial accord, have regarded [the right of the defendant to be present] as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction. But, where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.

¶16(Citations omitted. Italics mine.) 223 U.S. at 455. One reason for the rule against allowing waivers in capital cases is the "jealous policy to protect a defendant against himself and to vouchsafe absolute fairness to him ..." Lee v. State, 244 Ala. 401, 404, 13 So. 2d 590 (1943). Another is to impress upon the jury the serious consequences of its decision.

*634"It would be contrary to the dictates of humanity to let [the defendant] waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence.11

¶17Lewis v. United States, 146 U.S. 370, 372, 36 L. Ed. 1011, 13 S. Ct. 136 (1892) (quoting Prine v. Commonwealth, 18 Pa. 103, 104 (1851)).

¶18This court has not determined whether the Washington Constitution grants a nonwaivable right to be present in a capital case including the rendering of the verdict. The wording of Const, art. 1, § 22 (amend. 10) differs significantly from its federal counterpart. However, it is not necessary for us to determine this issue here, because the common law and CrR 3.4 both are clear that there is such a right.29

¶19CrR 3.4(b) states in relevant part:

In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.

¶20It is not disputed that this rule means that defendants may not waive their presence in capital cases, and every case interpreting the former federal rule counterpart to CrR 3.4 has so held. See 8B J. Moore, Federal Practice ¶ 43.02 (2d ed. 1988). The explicit statement in CrR 3.4 is the binding law of this state. I am therefore puzzled and disturbed by the majority's attempts to undercut the rule in a footnote:

This development [the change in the federal rule to allow the courts to determine the validity of waivers] leads us to question the advisability of CrR 3.4(b)'s current distinction between capital and noncapital cases. Nevertheless, even accepting the rule as it is presently written, we conclude that reversible error was not committed.

¶21(Italics mine.) Footnote 21.

¶22*635Aside from the obvious ex post facto infirmity of changing the rule to Rice's detriment after his trial, every principle of fairness requires this court to be bound by rules we have promulgated until changed according to established procedures. See GR 9. The majority's unwillingness to admit that CrR 3.4 was binding at Rice's trial, and was clearly violated, can result only in confusion with regard to that and every other rule promulgated by this court. Moreover, the Legislature recently repealed statutes dating back to 1881 granting capital defendants the nonwaivable right to be present at trial and judgment because those statutes were superseded by CrR 3.4. Laws of 1984, ch. 76, §§ 29, 33 (repealing RCW 10.46.120 and RCW 10.64.020). We have no right to question now the applicability of CrR 3.4. The court thus erred in allowing the jury to render the verdict in Rice's absence.

¶23Ill

¶24Even if Rice had the right to waive his presence, there is no indication he did so. Where a defendant is in custody, waiver of the right to be present should be express. 3A C. Wright, Federal Practice § 723 (1982); Annot., supra § 16, at 494, and cases cited therein and in the Later Case Service. "At least an on-the-record statement in open court by the defendant himself should be required." Cross v. United States, 325 F.2d 629, 633 (D.C. Cir. 1963). The holding of the case on which the majority relies, Taylor v. United States, 414 U.S. 17, 38 L. Ed. 2d 174, 94 S. Ct. 194 (1973), is limited to voluntary absence by a defendant not in custody, and is inapplicable here. United States v. Gordon, 829 F.2d 119, 125 n.7 (D.C. Cir. 1987). Rice never expressly waived his right to be present, and he was unconscious when the court made the decision to hear the jury's verdict in his absence. The majority makes a series of erroneous assumptions and presumptions in reaching the conclusion there was a waiver.

¶25First of all, the majority concludes that the suicide attempt was voluntary. Majority, at 619. In doing so, the *636majority first wrongly places the burden on Rice to show his suicide was not voluntary. In re James, 96 Wn.2d 847, 851, 640 P.2d 18 (1982) ("The State carries a heavy burden of demonstrating a voluntary, knowing, and intelligent waiver of any constitutional right"). Moreover, there was never any fact-finding hearing to determine the cause of Rice's suicide attempt.30 In a case with similar facts, the United States Supreme Court held that there must be a factual determination as to whether mental instability caused the defendant to attempt suicide before the rendering of the verdict. Drope v. Missouri, 420 U.S. 162, 181-82, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). The burden rests on the prosecution to show that the defendant "voluntarily absented" himself from the trial. Greenberg v. United States, 280 F.2d 472, 476 (1st Cir. 1960). Here, the State has not sustained this burden with any facts or evidence.

¶26Secondly, the majority presumes Rice knew the scope of his right to be present at the time of the suicide attempt. However, the record must affirmatively show that the defendant knows the entire scope of the constitutional right before it may be found to be waived. State v. Tetzlaff, 75 Wn.2d 649, 652, 453 P.2d 638 (1969). Although Rice was found competent to stand trial, and the jury found him liable for his actions applying the M'Naghten standards, the record is clear that Rice had severe mental problems and was delusional. Under these circumstances, the presumption that a defendant knows the law is inapplicable. Rice did not consult an attorney before "waiving his right".31 The court did not inform him of his right, and there is no other evidence Rice knew of his right. The fact that Rice *637was present during the guilt phase of his trial cannot in itself have been notice to him that he had a constitutional right to be present.

¶27Finally, the majority draws an insupportable connection between Rice's suicide and an intention to relinquish a constitutional right. The majority confuses the suicide attempt with an attempt to escape, which leads it to refer to inapplicable case authority. Majority, at 620; see Wade v. United States, 441 F.2d 1046, 1049-50 (D.C. Cir. 1971) (distinguishing voluntary absences involving escape from absences where there is no evidence of a willful intention to interfere with the court's processes). In doing so, the majority ignores the fact that Rice had attempted suicide on previous occasions for reasons apparently unconnected with waiver of constitutional rights. If we are to make assumptions without the benefit of a factual record, as the majority does, the more logical assumption is that Rice's act was related to his obvious mental impairments, or was a result of desperation, or deep agitation at waiting more than 24 hours for the jury's verdict. It is a long stretch for the imagination to conclude that the suicide attempt was a knowing and voluntary waiver of any right.

¶28The net effect of the majority's analysis is the presumption of a knowing and voluntary waiver of the right to be present, a right which nearly every jurisdiction has found to be so fundamental that no waiver at all is allowed. The majority thus ignores the rule that every reasonable presumption is indulged against waiver of a constitutional right. State v. Coyle, 95 Wn.2d 1, 7, 621 P.2d 1256 (1980).

It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." . . .

. . . This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.

¶29*638(Footnotes omitted.) Johnson v. Zerbst, 304 U.S. 458, 46465, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938), quoted in Cross, 325 F.2d at 631.

¶30Here, the court could have obtained a statement from Rice as to whether or not he intended to waive his constitutional right to be present. Its failure to do so was constitutional error.

¶31IV

¶32The majority admits there is a constitutional right to be present at the rendering of the verdict. However, it finds there was a waiver of that right and therefore implies, without actually admitting, only CrR 3.4 and the common law were violated in receiving the jury's verdict in Rice's absence. The majority therefore applies a less strict standard of review in determining whether there was harmless error. However, even applying the most tolerant standard of review, the court's error in receiving the verdict in Rice's absence could not have been harmless.

¶33The majority in essence assumes that error relating to a defendant's absence at the rendering of a verdict is harmless. This conclusion creates, in every situation in which such error occurs, a wrong without a remedy. It is hard to imagine how prejudice could be proven or disproven, as it is impossible to tell if a juror would look at a defendant and state his or her assent to the death sentence unless that actually happens.

¶34The District of Columbia Circuit of the United States Court of Appeals was faced with a similar quandary in Wade v. United States, 441 F.2d 1046 (D.C. Cir. 1971). In Wade, the defendant in a noncapital case overslept, and the court gave the jury the Allencharge and allowed the jury to return its verdicts in the defendant's absence. The District of Columbia Circuit Court of Appeals found this to violate Fed. R. Crim. P. 43 because the absence was not shown to be "voluntary", and further found that it could not assume the error to be harmless.

*639It is possible that defendant's absence made no difference in the result reached. The standard by which to determine whether reversible error occurred, however, is not whether the accused was actually prejudiced, but whether there is "any reasonable possibility of prejudice," ... In considering whether this standard is met, we must keep in mind the importance of a defendant's presence at all stages of his trial. Indeed, this aspect of a trial has constitutional prestige in the Sixth Amendment guarantee of the right to confront adverse witnesses — in good part a constitutional recognition of a psychological influence. Though perhaps to a less degree, the same influence pertains to the right of confrontation of defendant and jury, aside from the usefulness the accused may be to his counsel. . . . Moreover, there is the reasonable possibility that the jury speculated adversely to the defendant about his absence from the courtroom.

. . . Trial counsel's disclaimer on the remand of any usefulness to him of defendant's presence during the proceedings subsequently to the retirement of the jury ... is not an acceptable substitute for what might have eventuated; nor is defendant's answer to a question at the remand hearing, which indicated he did not know what he might have done if present, sufficient to outweigh the reasonable possibility of helpfulness to his case if present. As previously noted his absence was when judge and jury were engaged in open court in proceedings directly bearing upon the decisional processes of the jury. To hold his absence harmless would be too speculative. It would assume to reconstruct what might have eventuated had he been present, when that cannot truly be reconstructed with a degree of certainty essential to avoid the reasonable possibility of prejudice.

¶35(Footnotes omitted. Italics mine.) Wade, at 1050-51.

¶36In capital cases the defendant's presence at the verdict is even more crucial, and it is far less justifiable to assume, as the majority does, that the defendant's presence would make no difference. There is a qualitative difference between a juror facing the defendant and stating assent to any other verdict and facing the defendant and stating that he votes to put him to death.

¶37*640The nature of the jury's decision at the sentencing phase also makes it impossible for this court to determine the error to be harmless. When the jury acts as fact finder, this court has been willing to consider the weight of the evidence against the defendant to find error harmless. E.g., State v. Cunningham, 93 Wn.2d 823, 831-33, 613 P.2d 1139 (1980). In such cases we are willing, in essence, to place ourselves in the position of fact finder to determine what would have happened if the defendant had received a fair jury trial with no error. In the sentencing phase of a capital case, however, the jury no longer acts as finder of fact, but instead is determining whether the defendant deserves to die. The jury has wide discretion to withhold the death penalty. When an error interferes with the jury's determination to withhold the death penalty, we have no basis upon which to determine the outcome if there had been no error. The majority's determination that the jury would have sentenced Rice to death if the trial court had not erred preempts the jury's crucial role in a capital case. See RCW 10.95.050.

¶38The rendering of the verdict is not a mere mechanical recital of the vote in the jury room. The defendant has a right to a poll of the jury. CrR 6.16(a)(3). After the verdict is announced to the court, it may not be accepted by the court if a poll taken before the verdict is recorded indicates a lack of unanimity. "Jurors are not bound by votes in the jury room and remain free to register dissent even after the verdict has been announced, though before the verdict is recorded." United States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975). See also, e.g., Chipman v. Superior Court, 131 Cal. App. 3d 263, 182 Cal. Rptr. 123 (1982); People v. Kelogg, 77 Ill. 2d 524, 397 N.E.2d 835 (1979); Commonwealth v. Corbin, 215 Pa. Super. 63, 257 A.2d 356 (1969). The polling of the jury thus affords criminal defendants "the very real benefit of reconsideration and change of mind or heart." Taylor, at 168. "There can be no question of the right of a juror, when polled, to dissent from a verdict to which he has agreed in the jury room ..." United States *641v. Sexton, 456 F.2d 961, 966 (5th Cir. 1972) (quoting Bruce v. Chestnut Farms-Chevy Chase Dairy, 126 F.2d 224, 225 (D.C. Cir. 1942)).

¶39Besides affording jurors the opportunity to change their minds, polling impresses upon them the need to be sure of their verdict. Jurors may go along with the vote of the majority in the jury room, and then later, upon direct questioning by the court, assert that their original vote did not in fact reflect their true decision. "[T]he right to poll the jury is the right to require each juror individually to state publicly his assent to or dissent from the returned verdict which has been announced in open court in his presence." Miranda v. United States, 255 F.2d 9, 18 (1st Cir. 1958), quoted in United States v. Love, 597 F.2d 81, 84 (6th Cir. 1979).

The object of a poll is to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned and thus to enable the court and parties "to ascertain for a certainty that each of the jurors approves of the verdict as returned."

¶40United States v. Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972) (quoting Humphries v. District of Columbia, 174 U.S. 190, 194, 43 L. Ed. 944, 19 S. Ct. 637 (1899)).

¶41The poll of the jurors was a crucial stage of Rice's trial. Any one juror disavowing the verdict would have meant the difference between life and death for him.

The presence of the accused is not a mere form. It is of the very essence of a criminal trial not only that the accused shall be brought face to face with the witnesses against him, but also with his triers. He has a right to be present not only that he may see that nothing is done or omitted which tends to his prejudice, but to have the benefit of whatever influence his presence may exert in his favor. And at no time in the whole course of the trial is this right more valuable than at the final step when the jury are to pronounce that decision which is to restore him to the liberty of a citizen, or to consign him to the scaffold or to a felon's cell in the state prison.

¶42Temple v. Commonwealth, 77 Ky. 769, 771 (1879).

¶43*642Rather than assuming lack of prejudice, as the majority does, the better-reasoned opinions of other courts presume prejudice from the defendant's absence at the rendering of the verdict, even if the defendant's absence was his own fault. In State v. Okumura, 58 Hawaii 425, 570 P.2d 848 (1977), the defendant tried to escape custody before closing argument, but was captured and sustained injuries. While his injuries were attended to, the court overruled his attorney's objection and continued with the trial, including the rendering of the verdict in the defendant's absence. The Hawaii Supreme Court reversed the conviction, holding the prosecution had "failed to negate the presumption of prejudice" to the defendant from hearing the verdict in his absence. Okumura, at 431.

¶44The Supreme Court of Alaska has also held the defendant's absence at the rendering of the verdict could not be harmless error:

A substantial right was affected by Lee's being absent when the jury returned its verdict. Had he been present he could have insisted on a poll of the jury being taken. While the judge did ask the jury generally if this was their verdict, the members were not polled individually. Lee was deprived of the right personally to confront the jury. Particularly in light of the jury's difficulty in reaching a decision, Lee's absence at the return of the verdict was significant. The psychological distinction between a general poll in his absence, and an individual poll requiring each juror to assume the burden of his decision and affirm it in the defendant's presence is not a minor one. Under these circumstances we hold that substantial rights were affected, and that the error cannot be regarded as harmless.

¶45(Footnote omitted.) Lee v. State, 509 P.2d 1088, 1094 (Alaska 1973). Likewise, the Kentucky Court of Appeals has held:

There is no merit in the contention that appellant was not prejudiced because his attorney polled the jury, for he had the right to see and know that the entire jury was assenting to the verdict by polling the jury and requiring *643each juror when face to face with him to state that the verdict was his verdict.

¶46Riddle v. Commonwealth, 216 Ky. 220, 222, 287 S.W. 704 (1926).

¶47The trial court's error in receiving the jury's verdict in Rice's absence, which necessarily violates CrR 3.4 and the common law, cannot be found harmless even under the more lenient standard of review for nonconstitutional error. Because Rice did not waive his constitutional right to be present, there was also constitutional error, and a fortiori that error cannot be found harmless under the more stringent standard of harmlessness beyond a reasonable doubt. See, e.g., State v. Nist, 77 Wn.2d 227, 461 P.2d 322 (1969).

¶48V

¶49I would hold that allowing the prosecutor to argue to the jurors that they should put themselves in the children's shoes in deciding the sentence, and allowing the jury to render its verdict while Rice was unconscious were both reversible errors. I would reverse the death sentence and remand for proceedings required by RCW 10.95.050. Because I find the errors discussed above require reversal in themselves, I do not discuss here other errors I perceive in the sentencing phase of Rice's trial.

¶50Pearson, C.J., and Cunningham, J. Pro Tern., concur with Utter, J.

¶51Reconsideration denied August 16, 1988.