The State of Washington, Respondent, v. Robert Lee Yates, Jr., Appellant, 161 Wash. 2d 714

¶1 At trial in 2002, Robert Lee Yates Jr. was convicted of the 1997 aggravated first degree murder of Melinda L. Mercer and the 1998 aggravated first degree murder of Connie L. Ellis. At the special sentencing hearing, the jury found insufficient mitigating circumstances to warrant leniency. Yates was sentenced to death. He appeals his convictions and sentence. Finding no reversible error in the guilt or penalty phases, we affirm the judgment and sentence of the trial court. Owens, J. FACTS AND PROCEDURAL HISTORY ¶2 The Pierce County Murders.

Melinda Mercer turned to prostitution in November 1997 to support her heroin addiction. She was last seen alive on the night of December 6, 1997, leaving a Seattle tavern. According to the testimony of a friend, Mercer left the tavern to go to Aurora Avenue to make money for a heroin buy. On the following morning, Mercer’s nude body was found in some blackberry bushes in a vacant lot in Tacoma, a lot used as a dump site for garbage. Some of her clothing had been thrown on top of her, but other items were never recovered. An autopsy revealed that she had been shot three times in the back left side of the head.

Only one of the three bullets penetrated her brain, but it did so without affecting the areas that control consciousness and motor response. Found nearby was a .25 caliber shell casing. Bloodstains on her blouse indicated that she had been clothed and upright when shot in the head. After shooting her, the killer encased her head in four plastic grocery bags. The two outer bags contained very little blood, but blood had pooled inside the two inner bags.

Mercer’s nostrils and upper lip were visible through small tears in the two inner bags, which had been partially drawn into Mercer’s mouth; the holes suggested that Mercer was alive when the bags were tied over her head and that she had used her teeth to create the holes. Although Mercer could have died solely from the gunshot wounds, the oxygen deprivation would have hastened her death. ¶3 Connie Ellis likewise worked as a prostitute to support a heroin addiction.

Ellis had reentered a methadone treatment program on September 8,1998, and she was last seen alive on September 17,1998, when she received a dose of methadone at the clinic (a urinalysis taken at that time revealed that she was again using heroin). On October 13, 1998, approximately 11 months after the discovery of Mercer’s body, a search and rescue dog that was engaged in an unrelated search in Pierce County discovered Ellis’s decomposed body 10 feet down an embankment in a greenbelt used as a dump site.

The degree of decomposition suggested that Ellis had been killed a month prior, not long after her September 17 visit to the methadone clinic. Ellis’s body was clothed in jeans, a blouse, and socks, but lacked any undergarments. Ellis died of a single gunshot wound to the left side of her head. The wound was consistent with a .25 caliber bullet. Her head was encased in three plastic grocery bags. ¶4 The Spokane County Murders. On the day Ellis’s body was discovered, the Spokane County Sheriff’s Department learned of the Pierce County case.

In a phone call to one of the Tacoma detectives investigating the Ellis murder, a Spokane detective asked, “ ‘Will you just tell me one thing? Does she have plastic bags on her head?’ ” 52 Verbatim Report of Proceedings (VRP) at 4855. Detectives from Tacoma and Spokane shared information gathered on the 2 Pierce County murders and 10 unsolved murders committed in Spokane County between 1996 and 1998. As did Mercer and Ellis, the 10 Spokane victims had a history of drug abuse and worked in prostitution (all were last seen in the East Sprague Street corridor in Spokane, an area known for prostitution).

Again like Mercer and Ellis, the Spokane victims had been shot in the head with a small caliber handgun. Moreover, just as Mercer’s and Ellis’s heads had been encased in plastic bags, two or three plastic bags had been tied over the heads of five of the Spokane victims. Similarly, plastic bags were found in the grave with one victim and near the body of another, and a towel was found on or near the first two victims. ¶5 On April 18, 2000, a year and a half after the discovery of Ellis’s body, the Spokane police arrested Yates.

The police first contacted him in July 1998, after the body of Michelyn Derning was discovered on July 7, 1998, a block north of Pantrol, a manufacturing company where Yates had worked since moving to Spokane in April 1996 after being released from the army. Yates gave the officer his name, date of birth, and address. A second contact occurred on November 9, 1998, when a police officer saw Yates pick up Jennifer Robinson in the East Sprague Street area. Yates told Robinson to say that he was one of her father’s friends, and Robinson complied.

When asked for identification, Yates gave the officer his driver’s license. The officer ultimately let them move on, and Yates dropped Robinson off a few blocks away. Following the Pantrol interview and the Robinson incident, the police learned that Yates had once owned a white Corvette, a type of car that witnesses had reported seeing in relation to the disappearance of two of the earliest victims, Jennifer Joseph and Heather Hernandez. Late in 1999, a Spokane detective interviewed Yates, who claimed he never patronized Spokane prostitutes and owned no handguns.

He admitted that he had previously owned a white Corvette and had sold it to a friend, Rita Jones. The police located Yates’s white Corvette in January 2000 and discovered under the front passenger seat the white mother-of-pearl button missing from Joseph’s blouse. Bloodstains found in the Corvette matched Joseph’s deoxyribonucleic acid (DNA). ¶6 Following Yates’s arrest, the police developed additional evidence.

On the day after the arrest, Christine Smith, a former prostitute, contacted the police to identify Yates as the person who had picked her up in Spokane in August 1998 and shot and robbed her in the back of his van. In May 2000, officers searched Yates’s black Ford van, in the back of which Yates had installed a homemade wooden platform bed covered with carpet. The carpet, padding, and underlying wood tested positive for blood (later identified as that of Ellis and Murfin), and three bullet holes were found, as well as a spent bullet and bullet debris (containing Smith’s DNA).

From Yates’s house, the police took records indicating that he had owned at least three guns, one .22 caliber and two .25 caliber handguns. Forensic analysis later showed that Mercer was killed with the same .25 caliber handgun used in the murders of Spokane victims Johnson, Oster, Wason, and Maybin and that Ellis was killed with a different .25 caliber gun, the same one used to murder Murfin and wound Smith. Other evidence taken from Yates’s house established that, at the time Mercer and Ellis were last seen alive, Yates had been in the Tacoma area, fulfilling National Guard duties at nearby Fort Lewis.

From Yates’s closet, the police took a jacket identified as the one Smith had been wearing on the night Yates assaulted and robbed her, and from Yates’s laundry room, they took a canvas coat that bore a stain later identified by DNA analysis as Mercer’s blood. Using Yates’s hand-drawn map, police excavated an area on the east side of Yates’s house, beneath his bedroom window, and recovered Murfin’s body.

The semen collected by oral, vaginal, and/or anal swabs from Mercer and six Spokane victims (Scott, Johnson, Wason, Oster, Maybin, and Derning) was linked by DNA analysis to Yates, as were hairs found on Mercer and Maybin. ¶7 Yates was ultimately charged in Spokane County Superior Court with 10 counts of first degree murder and 1 count of attempted first degree murder.

On October 13, 2000, in exchange for the Spokane County Prosecuting Attorney’s agreement not to seek the death penalty, Yates pleaded guilty to the Spokane County crimes, as well as to two counts of first degree murder in Walla Walla County and one in Skagit County. His statement on plea of guilty did no more than acknowledge that he had committed with premeditated intent the murders listed in the amended information, which had provided nothing more than the names and dates of the murders. Yates was sentenced to 408 years in prison. ¶8 Prosecution of the Pierce County Murders.

On July 17, 2000, the Pierce County Prosecuting Attorney filed an information charging Yates with the aggravated first degree murders of Mercer and Ellis. On each count, the State alleged three aggravating factors and a firearm enhancement. At the time the information was filed, the State also provided Yates with notice of its consideration of a special sentencing proceeding, inviting Yates to submit mitigation material to the prosecuting attorney.

At Yates’s arraignment on October 31, 2000, he entered a plea of “not guilty,” and the court read the State’s notice of consideration of a special sentencing proceeding. The court entered an order extending until January 15, 2001, the State’s deadline for filing its notice to seek the death penalty, a notice that the State timely filed on January 12, 2001. ¶9 Opening statements were delivered on August 12, 2002, and the State rested its case-in-chief on September 11, 2002. The defense rested the following day.

The jury found Yates guilty on both counts of first degree murder and likewise determined that, with respect to each count, the State had proved beyond a reasonable doubt the existence of all three aggravating circumstances. Additionally, the jury found that Yates committed the murders while armed with a firearm. After hearing the evidence and closing arguments in the special sentencing hearing, the jury returned a verdict for a death sentence. At sentencing, the court rejected Yates’s argument that his death sentence had to be served consecutively to the 408-year sentence imposed in Spokane County.

Yates filed a timely notice of appeal. ISSUES PRESENTED A. Issues Raised by Defendant 1. As a result of the Pierce County Prosecuting Attorney’s contacts with the Spokane County Prosecuting Attorney during the preliminary plea negotiations in Spokane County, should Pierce County have been barred from seeking the death penalty for the two murders that Yates committed in Pierce County? 2. Did the trial court violate Yates’s right to a fair and impartial jury? 3.

In jury instruction 20, did the trial court substantially lower the State’s burden of proof by improperly defining the aggravating circumstance of RCW 10.95.020(10), commission of the murders as “part of a common scheme or plan”? 4. Did the State offer sufficient evidence to prove the three alleged “aggravating circumstances” beyond a reasonable doubt? 5. Did the second amended information fail to allege all of the elements of the crime of aggravated first degree murder? 6. Did the trial court deny the jury the opportunity to convict Yates of the lesser offense of first degree murder? 7.

Did the trial court abuse its discretion regarding expert testimony? 8. Did the trial court abuse its discretion by admitting certain photographic evidence? 9. Did the trial court abuse its discretion by permitting the State to use exhibit 544, a large

summary chart of the evidence that the State presented regarding the Spokane County and Pierce County crimes? 10. Did Yates meet his burden of proving that the prosecutor engaged in misconduct and that the misconduct prejudiced Yates’s right to a fair trial? 11. Did the trial court err in ordering Yates to serve the sentence imposed for the Pierce County murders concurrently with the sentence imposed for the Spokane County crimes? B. Mandatory Death Sentence Review and Related Issues Raised by Defendant 1.

Was there “sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4)”? (RCW 10.95.130(2)(a)) 2. Was the sentence of death “brought about through passion or prejudice”? (RCW 10.95.130(2)(c)) 3. Was the sentence of death “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant”? (RCW 10.95.130(2)(b)) 4. Is Washington’s death penalty statute unconstitutional? ANALYSIS A. Issues Raised by the Defendant ¶10 1. Plea Bargaining.

Yates claims that, in light of the Pierce County Prosecuting Attorney’s initial involvement in the Spokane County plea-bargaining process, Pierce County should have been barred from seeking the death penalty for the two murders that he committed in Pierce County. Yates contends that Pierce County’s decision to seek the death penalty violated the doctrines of equitable estoppel and fundamental fairness. a. Equitable Estoppel ¶11 On January 23, 2002, Yates filed a motion arguing that Pierce County should be equitably estopped from seeking the death penalty. The court ordered an evidentia-ry hearing.

Because the parties anticipated that Pierce County Executive John Ladenburg would be testifying about events that had occurred when he was Pierce County’s elected prosecutor, the court ordered that the eviden-tiary hearing he held before a visiting judge. After hearing testimony, Grays Harbor County Superior Court Judge Gordon Godfrey denied Yates’s motion and issued findings of fact and conclusions of law. Yates now assigns error to the denial of the motion and, in particular, to the trial court’s “ruling that absent a challenge to his plea agreement entered in Spokane County, Mr.

Yates could not seek to prevent the State from pursuing the death penalty in this case.” Br. of Appellant at 2 (Assignments of Error 2-3). Yates also assigns error to findings of fact 4, 5(

a) and (b), 11, and 12. Id. at 2-3 (Assignments of Error 4-7). ¶12 Factual Background. At the evidentiary hearing, the court heard testimony from Spokane County Prosecuting Attorney Steven Tucker, former Pierce County Prosecuting Attorney John Ladenburg, and others. The testimony (and the court’s unchallenged factual findings) established that Yates was arrested in Spokane County on April 18, 2000, and charged with the murder of Jennifer Joseph. On May 18, he was charged with the murders of seven additional Spokane women, as well as the attempted murder and attempted robbery of a ninth Spokane woman.

Yates’s public defender, Richard Fasy, “began to pursue the possibility of ‘global resolution’ discussions with the Spokane County Prosecuting Attorneys Office.” Clerk’s Papers (CP) at 2745 (Finding of Fact (FF) 2). At a mid-June meeting of the Washington Association of Prosecuting Attorneys (WAPA), Tucker, Ladenburg, and other county prosecutors met informally about Yates’s case. Tucker testified that, following the meeting, he believed he had some measure of consent to handle the Pierce County murders because Ladenburg “didn’t say I couldn’t handle them.” 14 VRP at 649-50.

Ladenburg testified that he never gave Tucker permission to handle the Pierce County cases and that he did not believe Tucker was seriously contemplating a plea resolution at that time. The trial court found that, “[biased on the conversations at that meeting with the prosecuting attorneys, including John W. Ladenburg, and based on the prosecutorial protocol of handling multi-venue prosecutions in one venue, Mr. Tucker believed and had reason to believe that he had the authority to prosecute the Pierce County murders .... Mr. Tucker subsequently conveyed that understanding to defense counsel, Mr.

Fasy.” CP at 2745 (FF 3). ¶13 After the WAPA conference, some media reports raised Ladenburg’s concern that Tucker was seriously considering a Yates plea bargain. According to the trial court’s finding, Ladenburg took the following action: When it became apparent to the Pierce County Prosecutors Office that Mr. Tucker was anticipating plea negotiations which included the possible elimination of the death penalty a phone conference was arranged between Mr. Tucker, Mr. Ladenburg, and other death penalty familiar prosecutors .... During that call, Mr. Ladenburg expressed his disapproval of Mr.

Tucker’s suggestion that he might plea bargain the death penalty in this case at this juncture. Mr. Ladenburg also told Mr. Tucker that if he was considering plea bargaining the death penalty Mr. Ladenburg would not allow Mr. Tucker to handle the Pierce County cases. During this phone call Mr. Ladenburg revoked any and all authority implied or otherwise that he had given to Mr. Tucker to prosecute or plea bargain the Pierce County murder cases that are the subject of this matter. Id. (FF 4) (emphasis added). Ladenburg suggested that the call occurred within days of the WAPA conference.

Tucker testified that it occurred on June 28. The trial court found that the discussions between Tucker and Yates’s attorney “became more ‘concrete’ ” at the end of June: “The window of time for these discussions was June 28 to July 17, 2000.” Id. (FF 2). ¶14 Despite the June phone call following the WAPA conference, “[o]n July 1, 2000 Mr. Tucker made the decision to proceed with a plea agreement with the defendant” and, on July 13, faxed to Ladenburg a draft plea agreement that included the Pierce County murders. Id. at 2746 (FF 6).

Three days later, Tucker faxed a letter to Ladenburg “requesting written authorization to file the Pierce County cases in Spokane County.” Id. (FF 7). On the following day, Monday, July 17, 2000, Ladenburg notified Tucker by letter and voice mail that Pierce County would file its own cases in Pierce County. On that same day, Ladenburg’s office filed an information charging Yates with two counts of first degree murder with aggravating circumstances. ¶15 After the Pierce County charges were filed, Tucker and Yates’s attorney continued to negotiate a plea agreement for the 10 Spokane murders.

Although the July 13 draft had required Yates to disclose the location of Melody Murfin’s remains and to assist in locating the .25 caliber handgun he had used in some of the murders, Yates did not disclose the location of Murfin’s remains until October 2000, and he “never provided any assistance in the location of the .25 caliber handgun.” Id. (FF 6). On October 13, 2000, three months after Tucker’s initial draft and the filing of the Pierce County charges, Yates and the Spokane County Prosecuting Attorney entered into a plea agreement.

The agreement provided that, in exchange for Yates’s guilty plea to 13 counts of first degree murder (10 in Spokane County, 2 in Walla Walla County, and 1 in Skagit County), as well as 1 count of attempted first degree murder in Spokane County, the Spokane County Prosecuting Attorney would not seek the death penalty. ¶16 Analysis. The doctrine of equitable estoppel is grounded in the principle “that a party should be held to a representation made or position assumed where inequitable consequences would otherwise result to another party who has justifiably and in good faith relied thereon.” Wilson v.

Westinghouse Elec. Corp., 85 Wn.2d 78, 81, 530 P.2d 298 (1975). A party seeking the protection of the doctrine must establish three elements: “(1) an admission, statement, or act inconsistent with the claim afterwards asserted; (2) action by the other party on the faith of such admission, statement or act; (3) injury to such other party resulting from permitting the first party to contradict or repudiate such admission, statement, or act.” Id. Application of equitable estoppel against the government is disfavored. Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 599, 957 P.2d 1241 (1998) (citing Kramarevcky v.

Dep’t of Soc. & Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 (1993)). A party asserting equitable estoppel against the government must establish, in addition to the three elements set forth above, that equitable estoppel (1) is “necessary to prevent a manifest injustice” and (2) would not “impair[ ]” “the exercise of governmental functions.” Kramarevcky, 122 Wn.2d at 743. A party must prove all required elements by clear, cogent, and convincing evidence.

Id. at 744. ¶17 As a threshold matter, Yates has provided no authority supporting the extension of the doctrine of equitable estoppel into the realm of criminal prosecutions. No Washington case has applied the doctrine to criminal cases, and federal authority exists discrediting such an application. In United States v. Anderson, 637 F. Supp. 1106 (D.

Conn. 1986), a case involving criminal prosecution for failure to file federal income tax returns, the court “found no authority to support the defendant’s contention that the doctrine of equitable estoppel may ever be invoked to defeat a criminal prosecution” and observed that “doctrines of equity, which typically can be invoked only by persons who have demonstrated their own ‘clean hands,’ seem unsuitable for general incorporation into the criminal law.” Id. at 1109. Likewise, in United States v. Alexander, 736 F. Supp. 968 (D.

Minn. 1990), the court rejected the argument— whether based on equitable estoppel or due process — that the government’s delayed obscenity prosecution had to be foreclosed. The Alexander court noted that “[n]o case has been cited to the court involving an equitable estoppel in a criminal prosecution” and that, “[i]n fact, authority exists for the proposition that it is inapplicable in a criminal matter.” Id. at 993 (citing Anderson, 637 F. Supp. 1106). ¶18 We hold that a criminal defendant may not rely on equitable estoppel to challenge a plea agreement.

Here, Yates attempts to use equitable estoppel to gain what amounts to specific performance of a promise allegedly made in the context of plea negotiations — that is, Pierce County’s alleged promise not to seek the death penalty for Yates’s murders of Mercer and Ellis. As this court recently held in State v. Bisson, 156 Wn.2d 507, 130 P.3d 820 (2006), specific performance of a provision in a plea agreement is available “only where the prosecutor’s promise was not susceptible to more than one meaning.” Id. at 524.

Given that a defendant is not entitled to specific performance of an ambiguous provision in the written plea agreement itself, a defendant certainly should not be permitted to invoke equitable estoppel as a means of gaining specific performance of a nebulous, disputed, unwritten agreement between two county prosecutors. A defendant’s reliance on equitable estoppel in the plea-bargaining context would not only create some murkiness in our law governing plea agreements, it could well have a chilling effect on the plea-bargaining process itself, making prosecutors reluctant to engage in such negotiations.

We conclude that case law and public policy foreclose a defendant’s use of equitable estoppel to alter the outcome of the plea-bargaining process. ¶19 Even if we were to permit a defendant to rely on equitable estoppel to seek enforcement of a promise allegedly made during plea negotiations, Yates’s equitable estop-pel argument would be unavailing. The trial court properly concluded that Yates had failed to provide clear, cogent, and convincing evidence of the essential elements of an equitable estoppel claim against the government. CP at 2747 (Conclusion of Law (CL) l).

Ample support for that conclusion of law is found in the unchallenged factual findings (in particular, findings of fact 2-3 and 6-10), as well as in testimony establishing that by June 28 Ladenburg had notified Tucker that Tucker could not handle the Pierce County murders if his intent was to plea bargain the death penalty.

The record contains no evidence that Pierce County ever promised Yates that it would forbear seeking the death penalty, nor does the record establish that Pierce County authorized the Spokane County prosecutor to include the Pierce County murders in a plea agreement eliminating the death penalty. Additionally, Yates has not identified any substantive evidence that he disclosed prior to July 17, 2000, in reliance on the alleged promises from Pierce County, and he has thus been unable to establish any consequential detriment or injury.

Finally, Pierce County persuasively argues that estopping Pierce County from seeking the death penalty would “impair [ ]” “the exercise of governmental functions” by encroaching upon the sovereign right of the Pierce County Prosecuting Attorney to determine how crimes within Pierce County should be prosecuted. Kramarevcky, 122 Wn.2d at 743; Br. of Resp’t at 63-64; see State v.

Bryant, 146 Wn.2d 90, 100-04, 110-12, 42 P.3d 1278 (2002) (Chambers, J., majority; Owens, J., dissenting) (holding that one county’s prosecutor lacks actual or apparent authority to bind another county’s prosecutor to an immunity agreement with a witness). We affirm the trial court’s rejection of Yates’s equitable estoppel argument. b.

Fundamental Fairness ¶20 In addition to appealing the trial court’s denial of his equitable estoppel motion, Yates raises for the first time on appeal his claim that Pierce County’s decision to seek the death penalty violated the guaranty of fundamental fairness inherent in the due process clause of the Fourteenth Amendment. Yates’s argument is, in essence, that the doctrine of fundamental fairness entitles him to specific performance of Pierce County’s alleged promise to forgo the death penalty.

Even if we were to assume that Pierce County had offered to forgo the death penalty in exchange for Yates’s guilty plea (and there is no evidence that Pierce County ever extended such an offer), the doctrine of fundamental fairness provides no basis for specific performance of that plea proposal. ¶21 In State v. Wheeler, 95 Wn.2d 799, 631 P.2d 376 (1981), this court considered as an issue of first impression whether a defendant was entitled to specific performance of a prosecutor’s initial plea proposal.

As the court unequivocally stated, “[t]he weight of authority is that, absent some detrimental reliance by the defendant, the State may withdraw from any plea agreement prior to the actual entry of a guilty plea.” Id. at 803. The Wheeler court explicitly rejected the notion that “ ‘the right to fundamental fairness embraced within substantive due process’ ” required enforcement of a plea proposal. Id. at 803-04 (quoting Cooper v. United States, 594 F.2d 12, 18 (4th Cir. 1979), abrogated by Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984)).

In the words of the Wheeler court, “[a] defendant does not have a constitutional right to plea bargain, see Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977), and thus the failure to enforce a plea proposal, as opposed to an ‘accepted’ offer, cannot violate substantive due process.” Id. at 804. Accordingly, we reject Yates’s argument because the doctrine of fundamental fairness is inapplicable to proposals made in the context of plea negotiations. ¶22 2. Jury Selection.

Yates contends that the trial court violated his federal and state constitutional right to a fair and impartial jury by granting the State’s challenges to jurors 39, 52, and 74; by denying the defense’s challenges to jurors 9, 29, 100, and 120; and by disallowing the defense’s proposed voir dire questions regarding religious affiliation. a. Trial Court’s Exclusion of Jurors 39, 52, and 74 for Cause ¶23 Yates contends that the trial court improperly granted the State’s challenges to jurors 39, 52, and 74. Under the Sixth Amendment to the federal constitution and

article I,

section 22 of the Washington State Constitution, a defendant has a right to an impartial jury. State v. Brown, 132 Wn.2d 529, 593, 940 P.2d 546 (1997); State v. Brett, 126 Wn.2d 136, 157, 892 P.2d 29 (1995), vacated on other grounds sub nom. In re Pers. Restraint of Brett, 142 Wn.2d 868, 16 P.3d 601 (2001). To ensure an impartial jury, the trial court in a capital case must “death qualify” the jury — that is, the court must satisfy itself that prospective jurors will be able to impose the death penalty if the State meets its statutorily mandated burden. Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L.

Ed. 2d 841 (1985); Brown, 132 Wn.2d at 593. Thus, the trial court may dismiss for cause any juror whose views on capital punishment would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Witt, 469 U.S. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980)); State v. Davis, 141 Wn.2d 798, 856-57, 10 P.3d 977 (2000).

When dismissing an equivocal juror — one who expresses personal opposition to the death penalty yet offers some assurances that he or she could set aside those views — the trial court need not find the juror’s bias “ ‘unmistakably clear’ ”; rather, the court must be “left with [a] definite impression” of the juror’s inability to apply the law impartially. Witt, 469 U.S. at 424-26 (rejecting the test set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L.

Ed. 2d 776 (1968)). ¶24 Because “a juror’s competency to serve impartially’ is a credibility determination that the trial court is necessarily in the best position to make, this court applies a deferential standard of review and will reverse the trial court’s determination only if the court has manifestly abused its discretion. State v. Rupe, 108 Wn.2d 734, 749, 743 P.2d 210 (1987); Witt, 469 U.S. at 428-29; Brown, 132 Wn.2d at 601-02; Uttecht v. Brown, 551 U.S._, 127 S. Ct. 2218, 2224, 167 L.

Ed. 2d 1014 (2007) (“Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.”). ¶25 As a prospective juror in the case, juror 39 filled out the lengthy written questionnaire. She responded “[n]o” to the following question: “In your opinion, should death ever be imposed as a sentence for punishment of a crime?” Confidential Juror Questionnaire (CJQ) 39, at 29.

Asked to indicate “[w]hich of the following best describe [d] [her] view of the death penalty,” she marked the box “Opposed in every possible circumstance” Id. (emphasis added). She left blank the questions asking for the best arguments for and against the death penalty. Id. at 30. When the State questioned juror 39 individually (and outside the presence of other jurors), she stated that her views on the death penalty were based on “a philosophy of [hers], [her] personal opinion.” 34 VRP at 2276. She affirmed three times that she was opposed to the death penalty in every circumstance. Id. at 2275-77.

She later indicated that she could vote to impose the death penalty, id. at 2279, and she admitted the response was contradictory. Id. at 2280. Defense counsel’s leading question elicited an ambiguous response: Q And your firm belief that — your strong belief that the death penalty, you’re generally opposed to it, won’t affect your ability to follow his instructions; is that right? A No. Id. at 2282. It is unclear whether juror 39 was agreeing with defense counsel’s statement or responding negatively to the tag question “is that right?” The trial court followed up: I need to understand your answers. . . . . . .

Would you ever vote for the death penalty? A I want to say, because my beliefs says, no. I would do that if it has occurred, yes, if I’m supposed to, weighing all the evidence, yes. Id. at 2282-83. ¶26 Weighing the State’s motion to excuse juror 39 for cause, the trial court pointed to her written responses that the death penalty should never be imposed and that she was “opposed in every possible circumstance.” Id. at 2286.

The trial court granted the State’s motion: “I’m convinced that her ability is substantially impaired by her personal beliefs, and even in response to my question she drew upon her personal beliefs.” Id. Here, the trial court’s ruling was not a manifest abuse of discretion. The court weighed her written and oral responses before concluding that her personal views would substantially impair her ability to impose the death penalty. ¶27 Juror 52 responded “[n]o” to the following written question: “In your opinion, should death ever be imposed as a sentence for punishment of a crime?” CJQ 52, at 29.

To describe her view of the death penalty, she checked the box “Generally opposed with very few exceptions.” Id. Asked to “state in greater detail [her] opinion about the death sentence,” she wrote, “I guess because I’ve been brought up in church we’re not to take a life.” Id. Similarly, her “best argument against the death penalty” was that “[n]o one has the right to take another life.” Id. at 30. In response to questions from the State, she explained that she was a lifelong member of the Church of God and Christ, which opposed ever taking a life. 35 VRP at 2403-04.

When asked whether she could vote for the death penalty, she reiterated that her religious views made such a question uncomfortable for her: ‘Would I vote? That’s a hard thing, because it’s like going against what I’ve been taught to go against, to take a life.” Id. at 2410, 2412. However, under questioning by defense counsel, juror 52 responded affirmatively to a series of questions regarding civic duty and her ability to follow the law impartially. Id. at 2413-15. ¶28 The trial court granted the State’s motion to excuse juror 52 for cause. Id. at 2418.

The court concluded that juror 52’s “religious beliefs and personal commitment are such that she would decline the death penalty in the case.” Id. While the trial court heard her responses to defense counsel’s structured questioning, the court reasonably concluded that such responses were of less consequence than her written and oral statements about the importance of her church’s teachings on capital punishment. See Patton v. Yount, 467 U.S. 1025, 1039, 104 S. Ct. 2885, 81 L.

Ed. 2d 847 (1984) (observing that the trial court “properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading”). The ruling was not a manifest abuse of the trial court’s discretion. ¶29 In her written responses, juror 74 unequivocally expressed her “[v]ery” strong opposition to the death penalty. CJQ 74, at 29. She stated that the death penalty should never be imposed and described her view of the death penalty by checking the box “Opposed in every possible circumstance.” Id. (emphasis added).

She wrote that she did not “believe in the death penalty,” that a “person’s life [was] not [hers] to take,” and that there was “[n]o good argument” for the death penalty. Id. at 29, 30. In response to the State’s questioning, she affirmed her written answers and explained that her views, which she had held for “[m]ost of [her] adult life,” were based on a religious and philosophical belief “that if we cause another human being death, we come down to the level of that person.” 37 VHP at 2686.

Juror 74 admitted that there was “probably” no possibility she could vote for the death penalty because “it would be a real difficult thing for [her] to do” and “would cause [her] an extreme amount of anxiety.” Id. at 2686-87. When defense counsel asked her if she could follow the court’s instructions impartially, her answer was equivocal: ‘Yeah, if I had to, probably.” Id. at 2687-88 (emphasis added). ¶30 The trial court’s decision to grant the State’s motion to exclude juror 74 for cause was plainly no abuse of discretion.

In light of her emphatic written and oral statements, the court reasonably concluded “that her beliefs or opinions would substantially impair the performance of her duties as a juror.” Id. at 2691. b. Trial Court’s Failure To Exclude Jurors 9, 29, 100, and 120 for Cause ¶31 Yates claims that the trial court abused its discretion when it denied his motions to excuse jurors 9, 29, 100, and 120 for cause. Because Yates exercised a peremptory challenge following the denial of each motion, none of the four prospective jurors was seated on his panel.

Moreover, at the close of voir dire, Yates retained three unused peremptory challenges. CP at 3746. On these facts, Yates cannot establish a Sixth Amendment violation. In United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000), the Supreme Court held that, where a defendant exercises a peremptory challenge after the court denies a defense motion to excuse the juror for cause, any potential violation of the defendant’s Sixth Amendment right to an impartial jury is cured. Id. at 316-17; see State v.

Roberts, 142 Wn.2d 471, 518, 14 P.3d 713 (2000) (holding that, “because Roberts has not demonstrated that jurors who should have been removed for cause actually sat on the panel, his rights were not violated”); State v. Fire, 145 Wn.2d 152, 165, 34 P.3d 1218 (2001) (holding that, even where defendant who has used peremptory challenge after denial of motion to exclude juror for cause ultimately exhausts peremptory challenges, defendant cannot demonstrate prejudice if “convicted by a jury on which no biased juror sat”).

Thus, even if Yates could establish that the trial court erroneously denied his motions to excuse these four jurors for cause, he would be unable to establish a constitutional violation. c. Trial Court’s Ruling on Proposed Voir Dire Regarding Religious Affiliations ¶32 The scope of voir dire is within the trial court’s sound discretion. State v. Robinson, 75 Wn.2d 230, 231, 450 P.2d 180 (1969). The trial court’s ruling regarding the scope of voir dire may not be disturbed on appeal “[a]bsent an abuse of discretion and a showing that the accused’s rights have been substantially prejudiced thereby.” State v.

Frederiksen, 40 Wn. App. 749, 752-53, 700 P.2d 369 (1985) (citing United States v. Robinson, 154 U.S. App. D.C. 265, 475 F.2d 376, 380 (1973)). Ordinarily, an individual’s religious affiliations and beliefs are not proper subjects of inquiry during voir dire. See State v. Davis, 504 N.W.2d 767, 772 (Minn. 1993); see also Wash. Const. art. I, § 11 (providing, in part, that no person “shall ... be incompetent as a witness or juror, in consequence of his opinion on matters of religion”).

Such questions may be proper, however, if the case involves religious issues “or if the information is a necessary predicate for a voir dire challenge.” Davis, 504 N.W.2d at 772. The trial court in the present case reasonably permitted the written jurors’ questionnaire to explore whether a juror’s religious views would compromise his or her ability to apply impartially the law regarding the death penalty. ¶33 Yates claims that the trial court erred when it refused to include the following proposed questions in the jurors’ written questionnaire: 1. What is your religious affiliation, if any? 2.

What is the fundamental teaching of your religion? 3. What influence has religion had in your life? 4. Describe your religious beliefs or philosophy. CP at 2827. Expressing reservations about the first question, the trial court rejected it, subject to “getting some additional information from [the defense] or the State on whether that direct question can be asked”; the court apparently received no supplemental information. 23 VRP at 1200 (emphasis added).

Regarding the three additional questions, the trial court invited counsel to expand questions 102 and 103, which inquired into the effect of the jurors’ religious beliefs on their ability to impose the death penalty. See supra note 11. However, here again, nothing in the record suggests that the defense sought any modification of the two questions. 23 VRP at 1190-91, 1200-01.

Additionally, the trial court expressly stated that counsel could “appropriate [ly] . . . ask follow-up questions” of any jurors who responded affirmatively to the question, “Do you have any religious or philosophical views which may cause you to feel uncomfortable sitting as a juror in a criminal case?” 32 VRP at 1791; CP at 3281 (emphasis added). The record shows that the attorneys were permitted to follow up on questionnaire responses regarding the effect of a juror’s religious beliefs on his or her ability to impose the death penalty. See, e.g., 35 VRP at 2403-04, 2408-15; 36 VRP at 2507.

In some instances, defense counsel asked jurors directly about their notions of mercy. See, e.g., 33 VRP at 1971; 39 VRP at 2965, 3001; 40 VRP at 3244. ¶34 Because the trial court gave Yates ample latitude to explore the prospective jurors’ religious beliefs as they related to the death penalty, Yates cannot show that the trial court’s tentative rejection of his proposed question on religious affiliation “substantially prejudiced” his rights to a fair jury. Frederiksen, 40 Wn. App. at 753.

In light of the foregoing facts, we conclude that the trial court’s ruling regarding Yates’s proposed voir dire questions was not an abuse of discretion. ¶35 3. Jury Instruction on “Common Scheme or Plan.” Yates argues that the trial court substantially lowered the State’s burden of proof by improperly defining, in jury instruction 20, the aggravating circumstance of RCW 10.95.020(10): commission of the murders as “part of a common scheme or plan.” Appellate courts review de novo any claimed errors in jury instructions.

Brown, 132 Wn.2d at 605. ¶36 Because the phrase “common scheme or plan” consists of commonly understood words, the trial court was not required to instruct the jury regarding the definition of the phrase. Id. at 611-12. In this case, however, the trial court, after considering proposed instructions from the defense and the State, provided the following instruction on the definition of “common scheme or plan”: A “common scheme or plan” means there is a connection between the crimes in that one crime is done in preparation for the other.

A “common scheme or plan” also occurs when a person devises an overarching criminal plan and uses it to perpetrate separate but very similar crimes. CP at 4106 (Jury Instruction 20). The court’s instruction and the State’s proposed instruction relied on the two alternative

definitions of “common scheme or plan” that this court embraced in State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995), for purposes of defining “common scheme or plan” under ER 404(b): There are two different situations wherein the “plan” exception to the general ban on prior bad acts evidence may arise. One is where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan. ... A simple example would be a prior theft to acquire a tool or weapon to perpetrate a subsequently executed crime.

The other situation arises when an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes. Id. at 854-55 (emphasis added). Rejecting the notion that the prior act had to be causally connected to (and done in preparation for) the charged act, the Lough court concluded that under ER 404(

b) the State, in order to prove the charged crimes of indecent liberties and attempted rape, was entitled to present evidence that the defendant had previously drugged and raped four other women in much the same manner. Id. at 855-61. ¶37 In the present case, Yates argues that the trial court erred when it defined “common scheme or plan” in RCW 10.95.020(10) by relying on the Lough court’s definition of the phrase for purposes of ER 404(b). Yates’s argument is unpersuasive for at least two reasons. First, Yates ignores this court’s earlier reliance on Lough in State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245 (1995).

In Pirtle, the court turned to “the traditional understanding of common scheme or plan within the rules of evidence” and specifically stated that “[t]his understanding . . . sheds light on the nature of the connection needed between the murders” for purposes of RCW 10.95.020(10). Id. at 662. The Pirtle court quoted only the first of the two Lough alternatives because Pirtle’s murders were committed as “ ‘constituent parts of a plan in which each crime is but a piece of the larger plan.’ ” Id. (quoting Lough, 125 Wn.2d at 855).

The Pirtle court found “ample evidence” that the murder of the second Burger King employee was connected to Pirtle’s “larger criminal purpose” of robbing the Burger King and killing the first victim. Id. at 663. While the facts in Pirtle were applicable only to the first of the Lough court’s alternative

definitions of “common scheme or plan,” the Pirtle court nonetheless broadly declared the Lough court’s ER 404(

b) definition a source of enlightenment for interpreting the same phrase in RCW 10.95.020(10). ¶38 Additionally, the second of the Lough court’s alternative

definitions of “common scheme or plan” comports with legislative intent. Were this court to adopt Yates’s narrow notion of the “common scheme or plan” aggravator, the court would necessarily be holding “that the legislature did not intend to enact an aggravating circumstance applicable to serial killers who use the same plan or formula over an extended period of time to kill multiple victims.” Br. of Resp’t at 103; see id. at 104 (describing legislative history). We reject such a notion. ¶39 Thus, we hold that in jury instruction 20 the trial court properly defined “common scheme or plan.” ¶40 4.

Sufficiency of Evidence Regarding “Aggravating Circumstances.” Yates concedes that the evidence was sufficient to prove beyond a reasonable doubt that he murdered Mercer and Ellis with premeditated intent. As defense counsel told the jury in his opening statement, Mr. Yates has waited patiently for almost two years for me to say to you that he killed Melinda Mercer and Connie LaFontaine Ellis. He did. We are in trial because the State, through the Pierce County prosecutor, has decided that these are not premeditated murders as Mr.

Yates has pled guilty to in Spokane, but premeditated murder with aggravating circumstances. 50 VRP at 4366. ¶41 However, Yates argues that the State’s evidence was insufficient to prove beyond a reasonable doubt the existence of the three alleged “aggravating circumstances” — that is, that he committed the murders as “part of a common scheme or plan,” “in furtherance of . . . [r]obbery,” and “to conceal the commission of a crime.” RCW 10.95.020(10), (11)(a), (9).

In challenges to the sufficiency of the evidence, “we review the evidence in the light most favorable to the State” to determine whether any rational trier of fact could have found the presence of the aggravating factor beyond a reasonable doubt. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004); Brown, 132 Wn.2d at 607. Circumstantial and direct evidence are deemed equally reliable. Varga, 151 Wn.2d at 201. a.

Commission of Murders as “part of a common scheme or plan” (RCW 10.95.020(10)) ¶42 As discussed above, to prove the “common scheme or plan” aggravating factor, the State was required to show that Yates “devise [d] an overarching criminal plan and use[d] it to perpetrate separate but very similar crimes.” CP at 4106 (Jury Instruction 20).

Relying on additional evidence from the Spokane murders, the State showed that Yates “devise [d] an overarching criminal plan” to lure into his vehicle white or light-skinned women who worked in prostitution (predictably due to drug addiction), negotiate a sex act, kill them by shooting them in the head with a small caliber handgun (encasing their heads in plastic bags to ensure their deaths and to prevent their blood from saturating his vehicle), undress their bodies for purposes of finding the money they were carrying, and transport their bodies to dump sites in secluded areas.

The State argued that the murders of Mercer and Ellis constituted “separate but very similar crimes” committed pursuant to that “overarching plan.” Id.

Mercer and Ellis, women who worked in prostitution to support drug habits, were shot in the head with a small caliber handgun; their heads were encased in plastic grocery bags; and their bodies were transported from the scene of the killing to a dump site. 65 VRP at 6924-26; Br. of Resp’t at 21. ¶43 Yates does not dispute the State’s evidence; rather, he rests his challenge on the unpersuasive contention that the trial court incorrectly defined “common scheme or plan” in jury instruction 20.

Viewing the evidence in the light most favorable to the State, we hold that “any rational trier of fact could have found” that Yates’s murders of Mercer and Ellis were “part of a common scheme or plan.” Brown, 132 Wn.2d at 607; RCW 10.95.020(10). b. Commission of Murders “in furtherance of. . . Hobbery” (RCW 10.95.020(ll)(a)) ¶44 Yates claims that the evidence was insufficient to establish that he committed the murders “in furtherance of . . . Hobbery.” RCW 10.95.020(11)(a).

RCW 9A.56.190 provides that “[a] person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury” The murder and the robbery must be “in ‘close proximity in terms of time and distance,’ ” and they must be causally connected. Brown, 132 Wn.2d at 608 (quoting State v.

Leech, 114 Wn.2d 700, 706, 790 P.2d 160 (1990)). ¶45 The State presented evidence that women engaged in prostitution typically require payment prior to the negotiated sexual act and that, because they are often robbed, they commonly hide their money in their shoes, brassieres, or underwear. 50 VRP at 4432-33. On the evening that Mercer was last seen, she was wearing a tank top, a brassiere, a floral skirt, shoes, a denim jacket, and a black coat, and she was carrying a purse. 55 VRP at 5326-28, 5344-45.

However, when Mercer’s nude body was discovered the following day, her tank top, brassiere, shoes, and purse were missing, and no cash was found on or near her body Id. at 5385-86; 56 VRP at 5468. Similarly, Ellis’s body was found clothed in a blouse, jeans, and socks, but lacking undergarments; a single shoe was found some distance from the body, and no purse or money was found nearby. 57 VRP at 5752-54; 58 VRP at 5906-07.

Additionally, the State provided evidence that Yates and his wife had money problems that prompted them to make periodic inquiries regarding Yates’s paychecks for National Guard duty. 58 VRP at 5831-33. ¶46 Viewed in the light most favorable to the State, the State’s circumstantial evidence could have persuaded a rational trier of fact that Yates murdered Mercer and Ellis in furtherance of robbery.

The jury could have reasonably believed that Yates negotiated the price of a sexual act, paid up front, murdered the women, and then took their money, disturbing or taking articles of clothing in which the women were likely to have concealed their money. c. Commission of Murders “to conceal the commission of a crime” (RCW 10.95.020(9)) ¶47 Yates contends that the evidence was insufficient to support the third alleged aggravating factor — that he committed the murders of Mercer and Ellis “to conceal the commission of” the crime of patronizing a prostitute. RCW 10.95.020(9); RCW 9A.88.110(1)(c), (3).

The State presented the testimony of Jennifer Robinson to establish that Yates was anxious to avoid being identified by the police as a person who hired prostitutes. According to Robinson, Yates picked her up on November 9, 1998, and asked for oral sex. When a police car pulled up behind them, Yates told Robinson to tell the police officer that Yates knew her father and was giving her a ride home.

After the officer allowed them to move on, Yates seemed “really nervous” and “really scared”; he dropped Robinson off some blocks away and steadfastly declined any interest in the sex act previously requested. 53 YRP at 5007.

Additionally, the State presented evidence that Yates had applied for a full-time position with the National Guard and that a prosecution for patronizing prostitutes would have adversely affected his potential for advancing in the military. 58 VRP at 5830-31, 5826-27. ¶48 Even when viewed in the light most favorable to the State, this circumstantial evidence is insufficient to prove that Yates murdered Mercer and Ellis to conceal the misdemeanor crime of patronizing prostitutes.

If Yates had killed every prostitute he patronized, one could rationally infer that he intended to eliminate any evidence that he had committed the misdemeanor of patronizing prostitutes, but as the defense showed, Yates patronized other prostitutes without killing them. ¶49 In sum, the evidence was sufficient to prove to a rational trier of fact that Yates committed the murders of Mercer and Ellis as “part of a common scheme or plan” and “in furtherance of . . . [r]obbery.” RCW 10.95.020(10), (11)(a). ¶50 5. Sufficiency of Second Amended Information.

Under Washington’s capital punishment statutes, the jury must make three factual determinations before the death penalty can be imposed. First, the jury must conclude that the State has proved beyond a reasonable doubt the elements of the substantive crime of first degree murder: “A person is guilty of murder in the first degree when... [w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person.” RCW 9A.32.030(1)(a).

Second, likewise in the guilt phase, the jury must conclude that the State has proved beyond a reasonable doubt the existence of at least one of the “aggravating circumstances” set forth in RCW 10.95.020: “A person is guilty of aggravated first degree murder, a class A felony, if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a) . . . and one or more of the following aggravating circumstances exist.” Third, at the close of “the special sentencing proceeding,” the jury must unanimously answer the following question affirmatively: “ ‘Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?’ ” RCW 10.95.060(4). ¶51 The second amended information charged Yates with two counts of “the crime of Murder In The First Degree With Aggravating Circumstances.” CP at 1003-04.

As to count I, the information specified that Yates “with premeditated intent to cause the death of another person, did shoot Melinda L. Mercer, thereby causing the death of Melinda L.

Mercer,” and it asserted that “aggravated circumstances exist, to-wit: the murder was committed in the course of, in furtherance of, or in immediate flight from the crime of robbery in the first or second Degree and/or defendant committed the murder to conceal the commission of a crime; and/or defendant killed more than one victim and the murders were part of a common scheme or plan during the period of May 1996 through October 1998.” Id. at 1003. The information cited RCW 9A.32.030(1)(

a) and RCW 10.95.020(9), (10), and (11). Id. at 1004. Count II substituted the name of the second victim, Connie L. Ellis, but otherwise mirrors count I. Id. ¶52 Seeking reversal of his convictions, Yates asserts for the first time on appeal that the State’s second amended information violated the well-settled constitutional requirement that “all essential elements of the crime must be included in the charging documents.” State v. Tandecki, 153 Wn.2d 842, 846, 109 P.3d 398 (2005). An element is “essential” if its “specification is necessary to establish the very illegality of the behavior.” State v.

Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992) (citing United States v. Cina, 699 F.2d 853, 859 (7th Cir. 1983)). The purpose of the “ ‘essential elements rule’ ” is “to apprise the accused of the charges against him or her and to allow the defendant to prepare a defense.” State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995); see U.S. Const. amend. VI (providing that, “[i]n all criminal prosecutions, the accused shall... be informed of the nature and cause of the accusation”); Wash. Const. art.

I, § 22 (stating that “[i]n criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation against him”). Specifically, Yates contends that the information failed to state “all essential elements” of the crime of aggravated first degree murder when it failed to (1) set forth the elements of first or second degree robbery, (2) define the term “common scheme or plan,” or (3) allege the absence of mitigating factors. ¶53 Yates’s first two claimed defects concern the adequacy of the information’s description of two of the three alleged aggravators.

Yates argues that the aggravators themselves are elements of the charged crime and that, consequently, the information should have specified the elements of the underlying aggravating crime of first or second degree robbery and should have defined the term “common scheme or plan.” In recent decisions, however, this court has clearly “held that under the statutory scheme in Washington the aggravating factors for first degree murder are not elements of that crime but are sentence enhancers that increase the statutory maximum sentence from life with the possibility of parole to life without the possibility of parole or the death penalty.” State v.

Thomas, 150 Wn.2d 821, 848, 83 P.3d 970 (2004); see also Brett, 126 Wn.2d at 154 (holding that “[a]ggravating circumstances ... are not elements of the crime, but ‘ “aggravation of penalty” ’ factors” (quoting State v. Kincaid, 103 Wn.2d 304, 307, 692 P.2d 823 (1985))). Yates claims that a different result is required under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

But as the State points out, the adequacy of the charging document was not at issue in either case; rather, those decisions concerned a defendant’s right to have a jury determine any facts that could increase the sentence beyond the statutory maximum for the charged crime. Apprendi, 530 U.S. at 477 n.3, 490; Ring, 536 U.S. at 597 n.4, 609; see 51 VRP at 4726. As explained above, at every step in the Washington death penalty scheme, the jury makes the factual determinations. Moreover, contrary to Yates’s suggestion, this court’s decision in State v.

Goodman, 150 Wn.2d 774, 83 P.3d 410 (2004), does not undermine our holdings in Thomas or Brett. In Goodman, we held that the charging document was defective because it accused the defendant of possessing “meth” but did not adequately define the word; given that “meth” could have meant various substances for which possession carried different sentences, the information did not on its face provide the defendant with clear notice of the charged crime.

The information filed against Yates, however, plainly charged him with two counts of aggravated first degree murder, for which the sentence is life without parole or, in the absence of sufficient mitigating circumstances, death. RCW 10.95.030. ¶54 As to Yates’s third claimed defect (the information’s failure to allege the absence of mitigating circumstances), we have previously held that the absence of mitigating circumstances is not an essential element of the crime of aggravated first degree murder: The statutory death notice here is not an element of the crime of aggravated murder.

Instead, the notice simply informs the accused of the penalty that may be imposed upon conviction of the crime. While we require formal notice to the accused by information of the criminal charges to satisfy the Sixth Amendment and art. I § 22, we do not extend such constitutional notice to the penalty exacted for conviction of the crime. State v. Clark, 129 Wn.2d 805, 811, 920 P.2d 187 (1996) (citation omitted).

The purpose of the charging document — to enable the defendant to prepare a defense — is distinct from the statutory notice requirements regarding the State’s decision to seek the death penalty. ¶55 We reject Yates’s claim that the second amended information was constitutionally inadequate. Adhering to our prior holdings in Thomas, Brett, and Clark, we conclude that the information apprised Yates of the charges against him by defining the base crime of first degree murder and setting forth the three alleged aggravators. ¶56 6. Jury Instruction on First Degree Murder.

The court’s instructions included a “to convict” instruction for each of the two counts of first degree murder. The instructions provided that, “[t]o convict the defendant of the crime of murder in the first degree,” the State must prove five elements beyond a reasonable doubt: that Yates killed Mercer and Ellis, that he acted with intent to cause the deaths, that the intent was premeditated, that Mercer and Ellis died as a result of Yates’s acts, and that the acts occurred in this state. See CP at 4099, 4108 (Jury Instructions 13, 22).

As to each count, the jury returned a verdict form stating that it found Yates guilty of the crime of first degree murder. See id. at 4163 (Verdict Form A Count I (Melinda Mercer)); id. at 4167 (Verdict Form B Count II (Connie Ellis)). Immediately following each of the “to convict” instructions on first degree murder were instructions on the State’s burden of proving beyond a reasonable doubt the existence of any or all of the three alleged “aggravating circumstances.” See id. at 4100, 4109 (Jury Instructions 14, 23).

Those instructions made it clear that the jury’s determination regarding aggravators was necessary only “ [i]f you find the defendant guilty of premeditated murder in the first degree.” Id. Just as the jury had to return a verdict form regarding each of the “to convict” instructions, the jury was required to return special verdict forms setting forth its unanimous determinations regarding each of the three “aggravating circumstances” on the two counts. See id. at 4164-65, 4168-69.

For both the “to convict” instruction on first degree murder and the instruction on the alleged aggravators, the court relied on the Washington Pattern Jury Instructions: Criminal. See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 26.02, 30.03 (2d ed. 1994). ¶57 Yates contends that the trial court erred in declining to give his proposed jury instruction explicitly labeling first degree murder a “lesser crime” included in the charged crime of aggravated first degree murder. CP at 4030.

Yates’s proposed instruction stated that “[t]he crime of premeditated first degree murder with aggravating circumstances necessarily includes the lesser crime of premeditated first degree murder,” and the instruction went on to explain that, “[w]hen a crime has been proven against a person and there exists a reasonable doubt as to which of two or more crimes that person is guilty, he or she shall be convicted only of the lowest crime.” Id. Yates argues that by failing to adopt this instruction the trial court violated the Eighth Amendment under Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L.

Ed. 2d 392 (1980). There, the Court invalidated a state statute that left the jury with an either-or option: to convict the defendant of a crime requiring the death penalty or to acquit him. Id. at 635-38. In the present case, however, the jury was not presented with the constitutionally flawed all-or-nothing option in Beck.

Rather, the court’s instructions, along with the verdict forms, made it clear that the jury’s task with respect to each of the two counts was to determine at the outset whether the State had proved the elements of first degree murder; only if the base crime was proved would the jury deliberate whether the alleged aggravators had been proved.

Here, the jury had three options on each count: it could have found Yates not guilty of first degree murder, guilty of first degree murder without any “aggravating circumstances,” or guilty of first degree murder with one or more “aggravating circumstances.” We reject Yates’s claim that the jury was denied an opportunity to convict him of the lesser crime of first degree murder. The trial court’s rejection of Yates’s proposed “lesser crime” instruction was not a violation of the Eighth Amendment. ¶58 7. Expert Witnesses.

Yates argues that the trial court abused its discretion by admitting the expert testimony of FBI (Federal Bureau of Investigation) Agent Mark Safarik regarding crime scene analysis, and by permitting Lynn Everson to testify as an expert regarding the subculture and practices of women who work in prostitution. Yates also contends that the trial court erred by withholding funding for his proposed defense expert on prostitution. a.

Safarik’s Testimony ¶59 Under ER 702, the court may permit “a witness qualified as an expert” to provide an opinion regarding “scientific, technical, or other specialized knowledge” if such testimony “will assist the trier of fact.” The two key criteria for admission of expert testimony are a qualified witness and helpful testimony. State v. Cauthron, 120 Wn.2d 879, 890, 846 P.2d 502 (1993), overruled in part on other grounds by State v. Buckner, 133 Wn.2d 63, 941 P.2d 667 (1997). We review a trial court’s admission of expert testimony for an abuse of discretion. State v.

Russell, 125 Wn.2d 24, 69, 882 P.2d 747 (1994); State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990); see also Walker v.

Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979) (stating that, “[i]f the reasons for admitting or excluding the opinion evidence are ‘fairly debatable’, the trial court’s exercise of discretion will not be reversed on appeal”). ¶60 The trial court found that Safarik was a qualified expert “in the fields of crime scene investigation, analysis, and linkage assessment” and that his testimony “[would] be helpful to the jury in understanding crime scene evidence, signature and linkage assessment.” Safarik’s testimony was relevant to showing the identity of Mercer’s and Ellis’s murderer and to establishing the “aggravating circumstance” of “common scheme or plan.” First, Yates suggests that Safarik’s testimony should not have been admitted to show the identity of Mercer’s and Ellis’s murderer since Yates had not placed his identity at issue.

However, as the State countered, because the Yates case did proceed to trial, the State was bound to establish every element of first degree murder, including the fact that Yates killed Mercer and Ellis. See CP at 4099, 4108 (Jury Instructions 13, 22). Second, Yates suggests that Safarik’s testimony amounted to an improper opinion as to Yates’s guilt, given Yates’s convictions for the Spokane murders and Safarik’s testimony that the crime scene evidence linked the Spokane killer to the murders of Mercer and Ellis.

But as this court stated in Russell, if an expert’s testimony is admitted to show identity, the court “will not rule inadmissible the inference to be drawn from such evidence.” 125 Wn.2d at 72-73.

Third, Yates claims that Safarik’s testimony amounted to improper propensity evidence; however, under ER 403, the trial court balanced the “probative value” of the Spokane evidence against “the danger of unfair prejudice” and ruled that a limiting instruction would cure “the only potential unfair prejudicial effect”— “that the jury might incorrectly consider the evidence as proof of defendant’s propensity to commit the Pierce County murders.” CP at 3072.

Pursuant to ER 105, the trial court gave the following limiting instruction: “[E]vidence will be introduced by the State on the subject of the Spokane murders for the limited purpose of attempting to prove a common scheme or plan and for purposes of attempting to prove motive, opportunity, identity, preparation, or premeditation. You must not consider this evidence for any other purpose in this case, which involves the deaths of two people in Pierce County” 65 VRP at 6839 (emphasis added). This court has often recognized that “[t]he jury is presumed to follow the instructions of the court.” State v.

Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982). Yates has not shown that the trial court abused its discretion in admitting Safarik’s expert testimony. ¶61 Even if we were to determine that the admission of Safarik’s testimony amounted to an abuse of discretion, we would conclude that the trial court’s evidentiary decision was harmless. Where evidence is improperly admitted, the trial court’s error is harmless “if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole.” State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).

The State presented overwhelming evidence that Yates murdered Mercer and Ellis. DNA analysis showed that Mercer’s blood was on Yates’s jacket, that his hair was on her skirt, and that his semen was identified on vaginal and anal swabs. Forensic analysis established that Mercer was killed with the same gun used in four of Yates’s Spokane murders, and records found at his home placed him in the Tacoma area at the time of Mercer’s murder.

Similarly, the State presented evidence that Ellis’s blood was found in Yates’s Ford van, that she was killed with the same gun Yates used to kill two of the Spokane victims, and that Yates was in the Tacoma area at the time Ellis was murdered. Just as, independent of Safarik’s testimony, the State presented overwhelming evidence of Yates’s guilt, the State presented abundant evidence, independent of Safarik’s testimony, that Yates’s murders of Mercer and Ellis were a product of the same criminal plan identifiable in the Spokane murders.

In light of the State’s evidence, any error in admitting Safarik’s testimony was harmless. b. Everson’s Testimony ¶62 Yates contends that the trial court erred in permitting Lynn Everson to testify as an expert on prostitution. Yates argues, first, that Everson’s practical experience was insufficient to qualify her as an expert. Working for the Spokane Regional Health District, Everson had gained 13 years of experience providing outreach services to prostitutes; she worked in the needle exchange program and personally provided prostitutes with food, clothing, condoms, and treatment referrals.

She had worked with approximately 300 individuals involved in prostitution. Yates argues that, because Everson had never been a prostitute herself or accompanied a prostitute on a job, the trial court erred in finding her qualified under ER 702. But an expert need not have acquired his or her knowledge through such personal involvement. See State v. Campbell, 78 Wn. App. 813, 823, 901 P.2d 1050 (1995) (permitting police officers to testify as experts on gang culture, even though they were not “ ‘from the same neighborhood, city or county’ ” as the gang members). As this court stated in State v.

Ortiz, 119 Wn.2d 294, 310, 831 P.2d 1060 (1992), “[p]rac-tical experience is sufficient to qualify a witness as an expert.” Here, the trial court properly concluded that Everson’s practical experience qualified her as an expert. ¶63 Yates’s second argument is that Everson’s testimony constituted improper “habit” evidence under ER 406. As the State points out, Everson’s testimony was admitted under ER 702, not ER 406.

The trial court ruled that Everson could testify as an expert as to the general practices of prostitutes but could not testify as to the habits of specific victims — i.e., as to what the victims “always” or “never” did. See 50 VRP at 4398, 4408-09, 4412. Everson thus testified, based upon her experience, about the general practices of prostitutes. She testified that prostitutes generally used drugs and alcohol, asked for payment up front, chose where the negotiated sex act would occur, commonly engaged in oral and vaginal sex, and avoided anal intercourse because it made them more vulnerable.

Similar expert testimony has been deemed permissible under ER 702. For example, in State v. Simon, 64 Wn.

App. 948, 963, 831 P.2d 139 (1991), rev’d in part on other grounds, 120 Wn.2d 196, 840 P.2d 172 (1992), a detective who “testified that he had been involved in investigating street prostitution for over 6 years, that he had investigated over 400 prostitution related crimes, and that he had investigated over 50 promoting prostitution cases,” offered testimony “about his contact and conversations with prostitutes regarding the pimp/prostitute relationship.” ¶64 Even if the admission of Everson’s testimony were regarded as an abuse of discretion, the error was harmless. See Bourgeois, 133 Wn.2d at 403.

Other witnesses testified that prostitutes generally asked for payment up front, and the crime scene evidence regarding the victims’ missing items supported the State’s theory that Yates robbed Mercer and Ellis. Everson’s testimony was properly admitted under ER 702. c. Defense’s Requested Funding for Expert |65 Yates also contends that the trial court erred by withholding funding for a defense expert on prostitution. CrR 3.1(

f) governs the appointment of a defense expert at public expense:

(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.

(2) Upon finding the services are necessary and that the defendant is financially unable to obtain them, the court . . . shall authorize the services. (Emphasis added.) As this court stated in State v. Young, 125 Wn.2d 688, 691, 888 P.2d 142 (1995), “[w]hether expert services are necessary for an indigent defendant’s adequate defense lies within the sound discretion of the trial court and shall not be overturned absent a clear showing of substantial prejudice.” ¶66 Yates failed to demonstrate that his proposed expert was “necessary to an adequate defense.” CrR 3.1(f)(1).

After the State notified the defense of its intention to call Everson as an expert on the practices of women engaged in prostitution, the defense brought an ex parte motion under CrR 3.1(f), requesting funds for its own expert on prostitution. Defense counsel stated that the defense “wanted Mr. Parker ... to give [his] insight into women’s behavior that are working on the street.” 16 VRP at 852. Counsel explained that “it relates to the aggravator primarily of robbery, and it addresses whether or not women typically carry purses, carry money, those kinds of things.” Id.

Responding to a question from the court, counsel stated that she did not believe that “there [was] a lot of difference in opinion in general about.. . how these women operate,” and she acknowledged that she had “already disclosed to [the State] that [Mr. Parker’s] testimony would be similar to” the testimony of the State’s expert. Id. at 853, 854-55.

Expressing a desire to have “more information” regarding the special contributions that the defense’s proposed expert would make, the court entered an order stating that the defense’s funding request was “[d]enied at this time subject to further hearing or information.” 16 VRP at 854-55; CP at 2511. The record is devoid of any further information that the defense provided concerning the anticipated testimony of its proposed expert on prostitution.

Absent any evidence that his proposed expert would have provided “services necessary to an adequate defense,” CrR 3.1(f)(1), Yates cannot meet his burden of showing that the trial court abused its discretion and substantially prejudiced his defense. Young, 125 Wn.2d at 691. ¶67 The trial court did not abuse its discretion by admitting the expert testimony of Safarik and Everson under ER 702 and by denying the defense’s motion under CrR 3.1(

f) for public funds to retain its proposed expert on prostitution. ¶68 8. Admission of Photographic Evidence. Yates argues that the trial court improperly admitted three autopsy photographs, the “in-life” photographs of the Spokane victims, and photographs of certain possessions of two Spokane victims. a. Autopsy Photographs ¶69 Autopsy photographs are admissible if they are “[a]ccurate,” and “if their probative value outweighs their prejudicial effect.” State v. Crenshaw, 98 Wn.2d 789, 806, 659 P.2d 488 (1983); ER 403.

Autopsy 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, 506 U.S. 856 (1992). A trial court’s admission of autopsy photographs is reviewed for an abuse of discretion. Crenshaw, 98 Wn.2d at 806. ¶70 Yates challenges the trial court’s admission of exhibit 325, a photograph showing the medical examiner’s incisions in the arm of Spokane victim Darla Scott.

The incisions revealed subcutaneous puncture marks, demonstrating that Scott had been an intravenous drug user. The evidence was relevant to the State’s theory that, as an element of Yates’s overarching plan, he selected women with serious drug addictions.

Because Everson had simply testified that Scott had an “issue” with street drugs and State’s witness Michael Mitchell had similarly speculated that Scott “was hooked on crack cocaine,” the medical examiner’s evidence of Scott’s intravenous drug use was relevant and was not cumulative. 50 VRP at 4452; 52 VRP at 4868. ¶71 Yates likewise argues that exhibit 444, a photograph showing the medical examiner’s incision in Ellis’s leg, was improperly admitted.

However, because Ellis’s body was “extensively decomposed and skeletonized,” the photograph offered essential evidence that blood and muscle were available from which viable DNA material could be extracted. 26 VRP at 1483; 58 VRP at 5907. The DNA extracted from Ellis’s remains matched blood found in Yates’s Ford van and thus supplied a critical piece of evidence identifying Yates as Ellis’s killer. ¶72 The third autopsy photograph that Yates has challenged, exhibit 604, shows that the innermost plastic bags tied around Mercer’s head were perforated and drawn partially into her mouth.

The photograph provided circumstantial evidence that Mercer was alive when Yates encased her head in four plastic grocery bags. The circumstantial evidence was relevant to, and probative of, Yates’s premeditated intent to kill Mercer. Yates arguably tied plastic bags over his victims’ heads not only to minimize blood evidence in his vehicles but also to ensure that his victims died from the wounds inflicted with his small caliber handguns. ¶73 The trial court did not abuse its discretion by admitting the three challenged autopsy photographs.

Their “probative value” outweighed the “danger of unfair prejudice.” ER 403. b. “In-Life” Photographs of Spokane County Victims ¶74 Yates contends that the trial court erred by admitting “in-life” photographs of the Spokane County victims. Following a pretrial hearing on the admissibility of the photographs, the trial court reserved its final ruling in order to review their relevance to the “common scheme or plan” aggravator and to afford the parties further opportunity to brief the issue. No further briefing was provided, and at trial all but 2 of the 10 photographs were admitted without a defense objection.

The State concedes that the defense arguably preserved an objection to the “in-life” photographs of Oster and Derning. ¶75 In prior decisions, we have recognized that, because the State bears the burden of proving a victim’s identity, the trial court’s admission of “in-life” photographs of the victim was not an abuse of discretion. In Pirtle, we held that “in-life” photographs of the victims were relevant to prove identity and that, under the required balancing of ER 403, the “probative value” of the photographs was not “outweighed by unfair prejudice.” 127 Wn.2d at 651-53.

In considering the potential prejudice of the “in-life” photos, the Pirtle court compared such photographs to the more graphic postmortem photographs placed before the jury: “The autopsy photos, however, are clearly more prejudicial than the ‘in-life’ photos. In light of the gruesome photos of the victims that were also befo

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