The State of Washington, Respondent, v. Cecil Emile Davis, Appellant, 175 Wash. 2d 287

Alexander, J. ¶1 In 1997, Cecil Davis raped, robbed, and murdered 65-year-old Yoshiko Couch. A jury found Davis guilty of aggravated first degree murder and unanimously agreed that no mitigating factors warranted leniency. State v. Davis, 141 Wn.2d 798, 807, 10 P.3d 977 (2000). Davis was sentenced to death. On direct appeal, we upheld the conviction and sentence. We later granted Davis’s personal restraint petition (PRP), reversing his sentence because jurors had seen him in shackles. In re Pers. Restraint of Davis, 152 Wn.2d 647, 101 P.3d 1 (2004).

At the new penalty proceeding, the jury found no mitigating factors warranting leniency and Davis was again sentenced to death. This appeal followed. See RCW 10.95.130. Finding no reversible error in Davis’s second penalty proceeding, we again affirm the sentence of death. I. FACTUAL HISTORY ¶2 At approximately 2:30 a.m. on January 25,1997, Cecil Davis was partying with friends outside his mother’s home in the city of Tacoma when he said, “I need to rob somebody” and “I need to kill me a motherfucker.” Report of Proceedings (RP) (Apr. 30, 2007) at 2638, 2641.

Accompanied by his friend, Anthony Wilson, Davis proceeded to a home across the street from the party. Once there, Davis kicked open the door and started “beating on” and rubbing the breasts of an occupant of the home, Yoshiko Couch. Id. at 2643. At this point, Wilson left. ¶3 At approximately 11:30 a.m. the same day, friends of Couch found her dead in her bathtub, naked from the waist down, surrounded by bloody water and fecal matter. Wet towels were wrapped around Couch’s head, and her vagina was red, raw, and covered in a white, powdery household cleanser.

The bathroom smelled strongly of chemicals, and opened household cleansers were found within the room. Couch’s wedding ring was missing from her ring finger, and her purse was lying open in a hallway. ¶4 An autopsy revealed that while alive, Couch’s vagina had been lacerated by a hard object, not a penis; her face was bruised and marked in a manner consistent with manual suffocation; and her skin was degraded from xylene, a chemical found in cleaning agents.

The physician who conducted the autopsy concluded that Couch died of asphyxia by suffocation and chemical toxicity. ¶5 Yoshiko Couch’s husband, Richard Couch, who was disabled from a number of strokes and unable to walk, was downstairs in his bed when the crime occurred. The telephone that was usually on his nightstand had been moved to a closet and, thus, was out of his reach. ¶6 Extensive evidence connected Davis to the crime, including blood, hair, and fingerprint samples. Meat and cigarettes that were believed to have belonged to the Couches were found in Davis’s possession.

The morning after the crime, Davis offered to sell his mother a gold wedding band matching the description of Couch’s wedding ring. Davis also made incriminating statements. Upon seeing a neighbor pointing toward his mother’s home and talking to police, Davis told his sister, “That bitch was next.” RP (Apr. 30, 2007) at 2605. In addition, upon hearing that the newspaper reported that he killed and raped Couch, he told a cellmate that “he might have killed the old bitch, but he didn’t rape the old bitch.” RP (May 2, 2007) at 2842-43. II.

PROCEDURAL HISTORY f 7 Davis was charged in Pierce County Superior Court with premeditated first degree murder with aggravating circumstances of rape, robbery, and burglary. Davis, 141 Wn.2d at 821. In 1998, a jury found him guilty as charged. At the conclusion of the penalty phase of the trial, the jury found that there were no mitigating circumstances warranting leniency.

Based on the jury’s verdict, the trial judge, Frederick Fleming, sentenced Davis to death. ¶8 Davis filed a PRP challenging his conviction and sentence on several grounds, including that he received ineffective assistance of counsel because his attorney failed to object when jurors saw him in shackles. Davis, 152 Wn.2d at 757-60.

We affirmed Davis’s conviction but vacated the sentence, remanding for a new penalty phase based on our conclusion that shackling may have tainted the penalty proceeding and that his counsel was ineffective in not raising an objection to the shackling. ¶9 The second penalty proceeding took place in 2007 before a new jury. Judge Fleming again presided.

Although the evidence presented at this penalty proceeding was similar to that presented in the first proceeding, the jury learned an additional fact — that in 2006, Davis had been convicted of second degree intentional murder for a killing that occurred the year before the murder of Couch. The jury did not find sufficient mitigating circumstances to warrant leniency, and Davis was again sentenced to death. Davis appealed, raising numerous issues that we address hereafter in addition to the issues this court is mandated to review pursuant to RCW 10.95.130. III.

ANALYSIS ¶10 In general, errors at a capital penalty proceeding are subject to heightened scrutiny. State v. Stenson, 132 Wn.2d 668, 743-44, 940 P.2d 1239 (1997). This requires a more careful look at the record but does not raise the standard of review. Issues Raised by Davis 1. Did the trial court abuse its discretion by failing to recuse itself after communicating ex parte with prosecutors? ¶11 After this court reversed the death sentence that had been imposed at Davis’s first trial, the case returned to Judge Fleming’s court for a new penalty phase.

Upon agreement between Davis and the State, the trial court initially set trial for September 2005. By April 2005, Davis’s counsel realized that they needed more time to prepare and, thus, sought a continuance. The trial court granted the defense request to continue the trial to April 2006. ¶12 On January 20, 2006, the defense again moved for a continuance, this time on the basis that it could not be ready for trial in April 2006 because its mitigation specialist would not be available.

Faced with this motion, Judge Fleming expressed frustration and said that the conviction had been reversed because they may have seen somebody walking — may have seen somebody walking in shackles. And now we are eight years hence and back — I just think that everyone — litigants, society, everyone has a right to have these matters resolved in a reasonable period of time. RP (Jan. 20, 2006) at 10-11. ¶13 Despite these concerns, Judge Fleming continued the trial to January 8, 2007, noting that he was continuing the penalty phase “for the final time.” Clerk’s Papers (CP) at 621.

He went on to say: I want to be responsible and fair to both sides. And as you can tell I don’t think we are being now. But after listening to you, Mr. [Ronald] Ness and Mr. [John] Neeb, I’ll give you almost— well, it will be another year. To me, that is wrong. But maybe the state of our law now in this state requires it, and maybe it’s the fair and just thing to do. But I’m not so sure.

RP (Jan. 20, 2006) at 18. ¶14 In October 2006, on his own and without consulting the parties, Judge Fleming decided to accelerate the trial date, apparently realizing that the penalty hearing would conflict with his scheduled February 2007 vacation. He envisioned a new

schedule with voir dire beginning on December 4, 2006, and opening statements on January 2, 2007. To that end, Judge Fleming arranged for a courtroom, 150 potential jurors, and the necessary security to be available on December 4, 2006. ¶15 On October 24, 2006, a court reporter told Deputy Prosecuting Attorney John Neeb that Judge Fleming wanted Neeb to come to courtroom 550 at 1:30 p.m. Shortly before 1:30, Judge Fleming saw another deputy prosecuting attorney, John Hillman, in a hallway in the Pierce County Courthouse.

Judge Fleming asked Hillman to prepare a scheduling order according to the new schedule, approve it, and then give defense counsel a copy for signature. Hillman did as he was told and approved the order. Deputy Prosecuting Attorney Neeb arrived shortly thereafter, received the same instructions, and also signed the order.

Soon thereafter, a deputy prosecutor delivered the order to Davis’s counsel, who signed it, noting an objection to the changed date for trial. ¶16 Davis’s counsel then moved to reschedule the trial date and for Judge Fleming to recuse himself based on what they alleged was improper ex parte contact. The State joined in the motion to reschedule the trial date but opposed the recusal motion. Following a hearing, Judge Fleming agreed to continue trial until April 2007 but denied the motion to recuse. ¶17 Davis contends that Judge Fleming’s ex parte communication with the deputy prosecuting attorneys violated former

(1995) Canons 1, 2(A), and 3(A)(4) of the Code of Judicial Conduct (CJC) and that these violations required Judge Fleming to recuse himself under former Canon 3(D)(1) (1995). The State concedes that ex parte contact occurred when Judge Fleming asked the deputy prosecutors to approve the scheduling order and deliver it to defense counsel for signature. It does not agree, however, that the contact required Judge Fleming to recuse. A trial judge’s decision of whether to recuse himself or herself is reviewed for abuse of discretion. State v. Leon, 133 Wn. App. 810, 812, 138 P.3d 159 (2006) (citing In re Marriage of Farr, 87 Wn. App. 177, 188, 940 P.2d 679 (1997)). ¶18 Former Canons 1 and 2(

A) set forth general principles relating to the standards of independence and integrity that judges should maintain. Former Canon 3(A)(4) specifically prohibits judges from engaging in ex parte contact, providing: Judges should accord to every person who is legally interested in a proceeding, or that person’s lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

Although the CJC does not define “ex parte communication,” the parties agree that the primary definition is “ ‘communication between counsel and the court when opposing counsel is not present.’ ” State v. Watson, 155 Wn.2d 574, 579, 122 P.3d 903 (2005) (quoting Black’s Law Dictionary 296 (8th ed. 2004)); Appellant’s Opening Br. at 32; Br. of Resp’t at 19. ¶19 A violation of former Canons 1, 2(A), or 3(A)(4) does not necessarily require a judge to recuse.

Rather, the rule for recusal is set forth in former Canon 3(D)(1), which provides in relevant part that “[j]udges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.” In determining whether recusal is warranted, actual prejudice need not be proved; a “mere suspicion of partiality” may be enough to warrant recusal. Sherman v.

State, 128 Wn.2d 164, 205, 905 P.2d 355 (1995). “The test for determining whether the judge’s impartiality might reasonably be questioned is an objective test that assumes that ‘a reasonable person knows and understands all the relevant facts.’ ” Id. at 206 (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)). ¶20 In Sherman, we held that a judge engaged in prohibited ex parte contact under former Canon 3(A)(4) when, at the judge’s request, a judicial extern called an organization that played a key role in the case and discussed general procedures for monitoring people in the plaintiff’s position.

This ex parte communication warranted recusal under former Canon 3(D), we concluded, because the judge “may have inadvertently obtained information critical to a central issue on remand,” leading a reasonable person to question his impartiality. Sherman, 128 Wn.2d at 206. ¶21 In In re Disciplinary Proceeding Against Sanders, 159 Wn.2d 517, 524, 145 P.3d 1208 (2006), this court held that former Canon 3(

D) required a justice to recuse himself from a consolidated case involving several sexually violent predators (SVPs) when he met with a group of SVPs, including at least one who was a party to the consolidated case and who inquired about a central issue in the case. This court concluded the justice’s actions violated former Canons 1 and 2(

A) and required recusal because a reasonable person would question the judge’s partiality. Id. at 525-26. ¶22 Here, as we have noted, the State concedes that ex parte contact occurred. That still leaves the question of whether a reasonable person who knew all relevant facts would conclude that Judge Fleming was actually prejudiced or appeared prejudiced.

In answering that question, we observe that the record shows that although neither defense counsel nor the prosecution wanted an earlier trial date, Judge Fleming decided to reschedule the trial to complete trial in time for his February 2007 vacation and to complete sentencing within a reasonable time.

When the defense pointed out the problems an earlier date would cause, Judge Fleming backed away from his earlier decision and gave Davis an additional four months to prepare and meet all relevant deadlines. ¶23 Unlike the problematic communications in Sherman and Sanders, nothing in Judge Fleming’s ex parte communication revealed or implied a bias toward one party or that his future rulings in the case would be affected. The decision to accelerate trial, which the trial judged believed was purely ministerial, was made well before the communication occurred.

Furthermore, the judge did not discuss any substantive issue during the communication. While Davis correctly points out that former Canon 3(A)(4) does not require the communication to be substantive for a violation to occur, the content of the communication is key in evaluating whether the judge appears partial for purposes of former Canon 3(D). ¶24 Davis further argues that the ex parte communication must be viewed in light of several “relevant facts.” Reply Br. of Appellant at 1-3. In our view, none of Davis’s observations alter the impartial nature of the ex parte communication that occurred.

Many of the observations relate to the judge’s desire to complete trial without long delays, a consideration he emphasized in open court as being important to both sides. E.g., RP (Jan. 20, 2006) at 10-11 (“[L]itigants, society, everyone has a right to have these matters resolved in a reasonable period of time.”), 18 (“I want to be responsible and fair to both sides.”); RP (Nov. 3, 2006) at 15 (“I consider it a court responsibility to have these cases tried, managed, in a manner that’s fair to both sides. The defendant has a right to have this matter concluded, as do the people of the State of Washington.”).

If the desire to finish trial within a reasonable amount of time shows prejudice, trial judges would be forced to grant every continuance a defendant requested in order to avoid being considered partial. This is an untenable position. ¶25 In sum, Judge Fleming’s conversation with deputy prosecutors and his conduct throughout the proceeding did not show bias toward the State or against Davis. Rather, it showed a desire to complete the penalty phase of Davis’s trial within a reasonable length of time from Davis’s conviction and in time for the judge to enjoy his scheduled vacation.

We therefore reject Davis’s claim that Judge Fleming’s denial of the recusal motion was error. 2. Did the trial court abuse its discretion by dismissing two jurors for cause? ¶26 In a written questionnaire, juror 1 indicated that she was in favor of imposing the death penalty on anyone who kills another person. During voir dire, this juror indicated that she was 20 years old and had never before been questioned as a potential juror. Thus, when voir dire began, she understandably felt “[a] little bit” nervous and intimidated. RP (Apr. 10, 2007) at 324.

The juror agreed with defense counsel’s suggestion that she would “rather not be in this position” of being a juror but would do her duty if she sat on the case. Id. at 332.

In contrast to that statement, however, she told the prosecutor that “I don’t think that I could personally [impose the death penalty] — I would feel that I would be sending someone to death, and I don’t think I could do that, just because I would probably just feel really bad if I did.” Id. at 333. ¶27 Judge Fleming then asked the juror which statement best described her feelings: “under no circumstance would you consider voting for the death penalty” or “can consider the death penalty in an appropriate case.” Id. at 333, 334.

The juror said the first statement better described her feelings because “I don’t think I could personally vote for someone to go on death penalty.” Id. at 334. After the questioning of juror 1 was completed, she was excused from the courtroom. The State then challenged her for cause based on her views on the death penalty. ¶28 After a colloquy with counsel, the judge called juror 1 back to the courtroom and reminded her of her earlier statement.

The following exchange then occurred: THE COURT: What did you mean when you said, “I don’t think I could do that.” JUROR NO. 1: Personally, I don’t think I could vote him to death. I don’t think I could— THE COURT: Well, you’re the only one that would know in the appropriate case. JUROR NO. 1:1 know. I just — I would feel bad if I did it, just I would feel guilty if I— THE COURT: So, you are telling me, even in an appropriate case, you couldn’t do it? JUROR NO. 1: Well, okay, an appropriate case, I think I could. I feel like I’m contradicting myself. Id. at 352.

In further questioning by the deputy prosecuting attorney and defense counsel, juror 1 reiterated multiple times that she did not know whether she could vote for the death penalty in the appropriate case. Defense counsel questioned her further: Q.....And what you are saying is — tell me if I’m wrong — is that even in an appropriate case, you couldn’t [sentence someone to death]? A. I don’t think — I don’t think I could personally do it, no. I don’t think I would feel comfortable with making that decision. Q. Under any circumstances? A. Under any. Id. at 367.

Soon afterward, over Davis’s objection, the court dismissed juror 1 for cause, concluding that I’m comfortable now in considering, as I’m required to do, her manner and her behavior and so on. She wanted so much to follow the law, which she thinks the Court represents, but it was against her personal beliefs, and I am convinced that there aren’t any circumstances, except for, she said, [Gary] Ridgway, that would allow her to, in this case, vote for the death penalty. Id. at 369. ¶29 Two days later, voir dire began for juror 39. After questioning, neither the prosecution nor Davis challenged this juror for cause.

The juror then told the trial judge that her husband had told her, based on his Internet search, that he thought a juror in Davis’s original trial had been influenced by seeing Davis in leg irons. Juror 39 said that she stopped her husband before he could elaborate. She also said that she could keep her husband from doing something like that again. ¶30 Although the State did not challenge juror 39 for cause, it asked the court to instruct the juror to disregard what she heard. Davis agreed and did not register a challenge for cause.

The trial judge, however, decided to excuse juror 39 for cause, noting that the record, other than this, would reflect that this juror is intelligent, could be fair to both sides, would listen to the evidence and make a conscientious decision based on the evidence that is heard in this proceeding, but I can’t take a chance and not follow the ruling of the court that she may be tainted because she knows at one time, in one proceeding, that Mr. Davis was seen in shackles, which carries with it, the court has said, an inference of he is dangerous.

Id. at 870-71. ¶31 Davis contends the trial court abused its discretion in dismissing jurors 1 and 39 for cause. In support of that contention, Davis argues that juror l’s objections to the death penalty did not justify her dismissal for cause because “she said she could perform her duty as a juror despite her personal misgivings about imposing the death penalty.” Appellant’s Opening Br. at 48.

Regarding juror 39, Davis asserts that her knowledge of facts surrounding the prior trial did not justify her dismissal for cause. ¶32 We review a trial court’s ruling on a challenge for cause for manifest abuse of discretion. State v. Gregory, 158 Wn.2d 759, 814, 147 P.3d 1201 (2006). “The reason for this deference is that the trial judge is able to observe the juror’s demeanor and, in light of that observation, to interpret and evaluate the juror’s answers to determine whether the juror would be fair and impartial.” State v.

Gentry, 125 Wn.2d 570, 634, 888 P.2d 1105 (1995). ¶33 The Sixth and Fourteenth Amendments to the United States Constitution, as well as

article I,

section 22 of the Washington Constitution, guarantee a criminal defendant the right to trial by an impartial jury. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); see Gregory, 158 Wn.2d at 813. These provisions are not offended by excluding from capital case penalty hearings jurors whose views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L.

Ed. 2d 581 (1980)); Gentry, 125 Wn.2d at 635. However, jurors may not be dismissed simply because they have conscientious scruples against the death penalty if they can put aside those beliefs and follow the law. Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S. Ct. 1770, 20 L.

Ed. 2d 776 (1968); Gregory, 158 Wn.2d at 814. ¶34 In Gregory, we held that a trial court did not abuse its discretion in dismissing for cause a juror who had indicated on her questionnaire that death was appropriate for serial murderers but testified during voir dire that she could follow the court’s instructions and impose the death penalty if warranted. Gregory, 158 Wn.2d at 813-15. The latter statement appeared to contradict other statements during voir dire that she could not vote for the death penalty.

The juror explained the apparent contradiction by saying she could tell what answer the attorneys wanted and felt uncomfortable disagreeing. Id. at 814.

We held that “[g]iven juror l’s initial answers to questions regarding the death penalty and the suggestion that she changed her answers to please the attorneys, it is not surprising that the trial judge had the definite impression that juror 1 could not ‘faithfully and impartially apply the law.’ ” Id. at 815 (quoting Witt, 469 U.S. at 426). ¶35 In Gentry, we upheld the trial court’s exclusion of two jurors who testified they were “uncertain” they could impose the death penalty and “could not assure the trial court that they would be able to follow the instructions of the court regarding imposition of the death penalty.” Gentry, 125 Wn.2d at 635.

Despite these jurors’ lack of certainty, we concluded that the trial court reasonably determined that the jurors’ beliefs would substantially impair their abilities to perform their duties, especially given the trial court’s unique ability to observe the jurors’ demeanor. ¶36 In light of our decisions in Gregory and Gentry, we are satisfied that Judge Fleming did not abuse his discretion in dismissing juror 1 for cause. Juror 1 indicated at least four times that she did not think she could personally impose the death penalty on anyone.

Under Gentry, the fact that she prefaced her comments with “I think” does not bar the trial court from finding her beliefs would substantially interfere with her ability to perform her duty as a juror; unmistakable clarity is not required to support such a finding. As in Gregory, the contradictions in juror l’s testimony made her dismissal appropriate even though she said several times that she could follow the law.

The trial judge said he “must have somehow or another intimidated” the juror and that her demeanor showed that she wanted to follow the law but, on reflection, concluded that imposing the death penalty would violate her personal beliefs. RP (Apr. 10, 2007) at 369. The trial court had the opportunity to observe this juror and in our view did not abuse its discretion in dismissing her for cause. ¶37 Davis argues the trial court abused its discretion in dismissing juror 39 for cause on the basis that knowledge of prior proceedings does not establish prejudice under State v.

Rupe, 108 Wn.2d 734, 750, 743 P.2d 210 (1987) and Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). Appellant’s Opening Br. at 44-46. RCW 4.44.170(2) allows the trial judge to dismiss a juror for cause who “cannot try the issue impartially and without prejudice.” ¶38 In Rupe, we held the court did not abuse its discretion when it denied a challenge for cause to a juror who read or heard that the defendant had been sentenced to death in an earlier penalty hearing and said he thought the previous jury did a good job. Rupe, 108 Wn.2d at 750.

The juror assured the trial court that he could render a verdict based on the evidence presented at the trial. We concluded that “[k]nowledge of prior proceedings alone is insufficient to establish juror bias.” Id. Similarly, in Yount, the United States Supreme Court determined that the trial court did not abuse its discretion in allowing the defendant’s trial to go forward with jurors who had been exposed to news coverage of the defendant’s murder conviction four years earlier when the jurors assured the trial court they could make an impartial decision.

Yount, 467 U.S. 1025. ¶39 Davis’s reliance on Rupe and Yount is misplaced for several reasons. First, Davis ignores the standard of review when he argues that the retention of the jurors in Rupe and Yount logically necessitates juror 39’s retention here.

Under a manifest abuse of discretion standard, the fact that a trial court did not abuse its discretion in retaining jurors does not mean that the court would have abused its discretion by dismissing the jurors. “The question is not whether we, as a reviewing court, might disagree with the trial court’s findings, but whether those findings are fairly supported by the record.” Gentry, 125 Wn.2d at 635.

Contrary to Davis’s assertion, Rupe and Yount do not mandate the conclusion that retaining a juror with knowledge of prior proceedings is the only acceptable result. ¶40 Davis’s case is also materially distinguishable from Rupe and Yount where the jurors’ knowledge of the prior trial was not inherently prejudicial. In contrast, we reversed Davis’s first death sentence because one juror’s “partial and fleeting” view of Davis in shackles during the guilt phase of the trial prejudiced the penalty phase. Davis, 152 Wn.2d at 705.

We reasoned that shackling implies the defendant is dangerous and unmanageable, potentially leading the jury to draw negative inferences regarding his future dangerousness. The partial and fleeting nature of the juror’s view in Davis shows the inference of dangerousness arose not from the impact of repeatedly seeing the defendant in shackles over several weeks in the courtroom, but from the mere fact of the shackling, however brief.

Thus, the trial court here could reasonably conclude juror 39 was prejudiced by simply knowing Davis had been shackled. ¶41 Finally, we believe that it is inappropriate to defer to a juror’s assessment of his or her own ability to be objective when the knowledge at issue relates to shackling. In Rupe and Yount, the jurors’ assurances that they could be impartial were critical to upholding the jurors’ retention.

In contrast, in our earlier Davis decision, we explicitly refused to consider the juror’s testimony that shackling did not affect his decision because the statement was made several years after the verdict was rendered. Davis, 152 Wn.2d at 688-89. Given this lack of deference to the juror’s own assessment of his credibility, the trial court here reasonably concluded it could not rely on juror 39’s testimony that knowledge of past shackling would not influence her decision. Under a manifest abuse of discretion standard, we will not disturb the trial court’s reasonable

interpretation of our earlier decision in this case or its finding that juror 39 possessed prejudicial knowledge warranting dismissal. ¶42 Davis also argues RCW 4.44.170 does not support juror 39’s removal because that statute refers to the “challenged person,” and neither Davis nor the State challenged the juror for cause. Reply Br. of Appellant at 8.

CrR 6.4(c)(1) states that “[i]f the judge after examination of any juror is of the opinion that grounds for challenge are present, he or she shall excuse that juror from the trial of the case.” This rule makes clear that a trial judge may excuse a potential juror where grounds for a challenge for cause exist, notwithstanding the fact that neither party to the case exercised such a challenge. In fact, the judge is obligated to do so. The trial court’s dismissal of juror 39 for cause was, therefore, proper. 3.

Did the trial court abuse its discretion in excluding Davis’s aunts’ testimony? ¶43 On May 7, 2007, slightly over a month into the penalty hearing, the trial court was called upon to decide whether videotaped interviews of Davis’s paternal aunts, Eula Mae Brooks and Lillie Mae Jones, could be admitted. The interviews took place in Kansas City, Missouri, where Brooks and Jones lived, and were conducted by the defense mitigation specialist, Mary Goody. Brooks and Jones were not placed under oath during the video interviews but later signed declarations summarizing the information covered in their interviews.

Each interview lasted slightly less than 20 minutes. ¶44 In the interviews, Brooks and Jones each discussed their personal histories and early memories. They both mentioned that Davis’s father had trouble learning and dropped out of school early. Brooks said that although she never visited Davis or Davis’s mother, Cozetta Taylor, she would have tried to help Davis if she had known of his problems in school or with his temper. Jones said that she had occasionally visited Taylor. She indicated that Taylor did not take care of her children or seem interested in them.

Both aunts discussed how their mother, Davis’s paternal grandmother, was institutionalized for mental illness when Brooks and Jones were in high school. ¶45 After reading the declarations and viewing the redacted video, the trial court excluded the interviews, concluding that portions of each were inadmissible on the grounds of hearsay, lack of personal knowledge, and relevance.

The trial court also reasoned that the videotaped interviews were inadmissible because the interviewees were not subject to cross-examination. ¶46 Davis argues that excluding his aunts’ videotaped interviews violated his right to present mitigating evidence under the Eighth and Fourteenth Amendments to the United States Constitution;

article I, sections 3 (due process) and 14 (cruel punishment) of the Washington Constitution; and RCW 10.95.060(3) and RCW 10.95.070, two of Washington’s special sentencing proceeding statutes. We review the trial court’s evidentiary rulings for abuse of discretion. See State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999); Stenson, 132 Wn.2d at 701. Discretion can be abused if the trial court’s action is manifestly unreasonable or based on untenable grounds or reasons.

Finch, 137 Wn.2d at 810. “However, a trial court’s determination to exclude evidence may be sustained on any proper basis within the record and will not be reversed simply because the trial court gave a wrong or insufficient reason for its determination.” State v.

Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992). ¶47 Under the Eighth and Fourteenth Amendments, the finder of fact in a capital proceeding must “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978).

Notwithstanding this requirement, the trial court maintains its traditional authority “to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Id. at 604 n.12; see also Gregory, 158 Wn.2d at 856-57 (facts-of other crimes resulting in the death penalty were not relevant mitigating evidence because not related to the particular defendant or crime at issue); State v.

Pirtle, 127 Wn.2d 628, 671, 904 P.2d 245 (1995) (essay written by victim in opposition to the death penalty was not relevant mitigating evidence because not related to the defendant’s moral culpability). ¶48 In the instant case, the trial court correctly determined that the vast majority of Jones’s and Brooks’s offerings were not relevant mitigating evidence. The stories regarding their childhoods, for example, clearly do not relate to Davis’s character, record, or the circumstances of the offense.

The fact that Davis’s father may have had difficulty in school also is unrelated to Davis’s character or moral culpability because the difficulty occurred before Davis was born. The fact that Brooks never visited Davis or his mother renders her opinion that Davis had a hard upbringing lacking in foundation and irrelevant. ¶49 The evidence of Davis’s grandmother’s mental illness is also irrelevant because it was not connected to Davis’s mental health or upbringing.

One of the defense mental health experts considered records showing that Davis’s grandmother had been institutionalized for schizophrenia, but when asked what information he used to reach his opinion about Davis, the expert did not mention the grandmother’s illness. RP (May 9, 2007) at 3247-48. Furthermore, there was no evidence that Davis suffered from schizophrenia or that Davis knew his grandmother or had any contact with her.

In the absence of testimony connecting the grandmother’s illness to Davis’s upbringing or mental health, it simply has no bearing on Davis’s character, record, moral culpability, or the circumstances of the crime. ¶50 A few facts offered by Davis’s aunts probably meet the low bar for relevance. Jones’s observation that Davis had a difficult and troubled childhood is a relevant mitigating factor. See Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982).

In addition, the aunts’ concern had relevance on the issue of mercy, their testimony showing that two family members were willing to be interviewed on Davis’s behalf. In Stenson, we held that the trial court did not err in excluding on relevance grounds testimony concerning the potential impact an execution would have on the defendant’s family, but we noted with approval that the trial court had admitted testimony from family members indirectly showing that the defendant had a caring family.

Here, in contrast, the exclusion of Davis’s aunts’ interviews completely eliminated the views of two family members from the jury’s consideration, a fact that was underscored by the State’s comment in closing argument that only two members of Davis’s large family (his mother and brother) testified on Davis’s behalf. See Skipper v. South Carolina, 476 U.S. 1, 5 n.1, 106 S. Ct. 1669, 90 L.

Ed. 2d 1 (1986) (evidence that the defendant had made a good adjustment in prison was relevant mitigating evidence, especially because the prosecutor argued during closing that defendant would be dangerous and even rape other prisoners if sentenced to life in prison). ¶51 Davis argues that beyond the threshold requirement of relevance, the rules of evidence may not bar the admission of relevant mitigating evidence in a capital case. The State counters that while the rules of evidence are relaxed in capital penalty proceedings, “admissibility is not unfettered”; evidence still must be presented in a reliable form.

Br. of Resp’t at 44. ¶52 The United States Supreme Court has held that “ ‘the hearsay rule may not be applied mechanistically to defeat the ends of justice’ ” by excluding reliable mitigating evidence from a capital penalty proceeding. Green v. Georgia, 442 U.S. 95, 97, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979) (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). The Court has not, however, totally prohibited use of the rules of evidence in death penalty cases.

Because reliability is critical in determining whether to impose the sentence of death, the Eighth Amendment “does not deprive the State of its authority to set reasonable limits upon the evidence a defendant can submit, and to control the manner in which it is submitted.” Oregon v. Guzek, 546 U.S. 517, 526, 126 S. Ct. 1226, 163 L.

Ed. 2d 1112 (2006). ¶53 RCW 10.95.060(3) appears to provide an unfettered right to admit evidence without regard to the rules of evidence in a capital penalty proceeding, as it states that “[t]he court shall admit any relevant evidence which it deems to have probative value regardless of its admissibility under the rules of evidence, including hearsay evidence.” (Emphasis added.) Our case law, however, shows the trial court is not completely barred from considering reliability in capital penalty proceedings. In State v.

Bartholomew, 101 Wn.2d 631, 646, 683 P.2d 1079 (1984) (Bartholomew II), we held that although polygraph evidence was inadmissible in a normal trial, absent stipulation, mitigating polygraph evidence was admissible in a capital penalty hearing if (1) the trial judge was convinced the examiner was qualified and the test was conducted under proper conditions and (2) the opposing party had the opportunity to cross-examine the polygraphist.

Bartholomew II shows that while the rules of evidence are relaxed in capital penalty phase trials, the trial court maintains its traditional ability to control the reliability of mitigating evidence. ¶54 We are satisfied that the trial court properly exercised its discretion in excluding the few relevant parts of the interviews because the interviews were presented in an unreliable form. As we have observed, Brooks and Jones had little to no contact with Davis during his childhood.

Consequently, their opinions that Davis had a bad mother and childhood could have been based on family gossip, what they heard from the mitigation specialist in preparation for the interview, or even what they read in the newspaper about Davis’s previous trials. Furthermore, the defense obtained and presented the evidence in a manner that gave the State almost no chance to explore these potential problems, even though a video deposition or in-person testimony appears to have been possible.

Accordingly, the interviews’ exclusion was not a wholesale bar to the admission of relevant mitigating evidence or a mechanistic application of the rules of evidence. Rather, the trial court properly exercised its “authority to set reasonable limits upon the evidence a defendant can submit, and to control the manner in which it is submitted.” Guzek, 546 U.S. at 526. ¶55 In sum, the trial court properly excluded the videotaped interviews because their content was largely irrelevant, and any relevant portions were not presented in a reliable form. 4.

Did the trial court abuse its discretion in admitting as rebuttal evidence a police officer’s testimony about Davis’s mental state shortly after the crime? ¶56 The defense presented the testimony of four experts regarding Davis’s mental health: Dr. Richard Kolbell, psychologist; Dr. Barbara Jessen, neurologist; Dr. Zakee Matthews, psychiatrist; and Dr. Kenneth Muscatel, psychologist. ¶57 Kolbell, Matthews, and Muscatel each diagnosed Davis’s mental condition based on examinations performed in 2006 or 2007.

Although their exact diagnoses varied, the doctors all opined that Davis bordered on mentally retarded but was not actually classifiable as such. They also indicated that Davis suffered from other cognitive disorders such as posttraumatic stress disorder and learning disabilities. These diagnoses were based on a series of technical tests, such as intelligent quotient (IQ) tests. Each doctor also discussed how the 2006 or 2007 diagnosis compared to Davis’s mental condition in 1997, the year he committed the crime. ¶58 Kolbell and Muscatel both testified about Davis’s behavior during testing.

Kolbell said that Davis’s functional levels could be measured in part by his ability to converse, follow a train of thought, and speak coherently. Kolbell also noted that at the beginning of the interview, he asked Davis what day it was to check whether Davis was oriented. Muscatel noted that while his interview of Davis “was really not the focus of the examination, I wanted to see if he could answer questions, respond, you know, to me, if I had to adjust the testing to suit his individual needs.” RP (May 10, 2007) at 3364.

During cross-examination, without objection by the defense, Kolbell and Muscatel both said Davis was able to maintain a normal demeanor during their conversations. f 59 Jessen testified regarding the results of an electroencephalogram (EEG) taken of the defendant’s brain in August 1997. She concluded that the EEG showed a generalized slowing in Davis’s brain that could have existed since birth or could have been caused by a later infection, head trauma, medications, or alcohol and drug use. Without objection, the State cross-examined Jessen about Davis’s demeanor during a physical exam she conducted in July 1997.

She agreed that Davis was alert, cooperative, oriented, spoke normally, had a reasonably good memory, and had no trouble using or pronouncing words. ¶60 The State’s rebuttal consisted of testimony by Sergeant Tom Davidson about his observations of Davis during an interview on January 31, 1997, six days after the crime was committed. The defense moved to exclude Davidson’s testimony on the ground that it did not rebut the mental health experts’ testimony.

The trial court rejected the argument and allowed Davidson to take the stand. ¶61 Davidson testified that he had been a police officer for 26 years and, during that time, had interviewed hundreds of criminal suspects. Over relevance objections, Davidson testified that he had encountered people of different education levels and opined that academic education does not necessarily correlate with “street smarts.” Id. at 3458-59. Davidson said he did not have any formal training in psychology or psychiatry but rather used his own scale to make observations about people he interviewed.

He indicated that if he interviewed someone and had questions about that person’s mental health, he would notify the jail so it could properly deal with the person. ¶62 Davidson then discussed the interview with Davis on January 31, 1997, which he conducted along with three other detectives. He said Davis was paying attention and seemed to understand when advised of his rights. According to Davidson, Davis gave appropriate responses to questions during the two-and-a-half-hour interview and never showed signs that he did not understand why he was there or what they were discussing.

Davidson said that Davis looked at the person asking the question and showed no confusion when the subject changed. Davidson concluded by stating that nothing about the interview gave him cause for concern about Davis’s mental status. ¶63 Davis contends that the trial court erred in admitting Davidson’s testimony during the State’s rebuttal case on several bases. We review the trial court’s evidentiary rulings for abuse of discretion.

Finch, 137 Wn.2d at 810; Stenson, 132 Wn.2d at 701. ¶64 Unlike with mitigating evidence, the introduction of aggravating factor evidence must strictly comply with the rules of evidence. Bartholomew II, 101 Wn.2d at 640-41; Gentry, 125 Wn.2d at 626. While the State may admit evidence to rebut the defendant’s case, that evidence must be “relevant to a matter raised in mitigation by defendant. Evidence might be relevant, for instance, if it casts doubt upon the reliability of defendant’s mitigating evidence.

We do not intend, however, that the prosecution be permitted to produce any evidence it cares to so long as it points to some element of rebuttal no matter how slight or incidental.” Bartholomew II, 101 Wn.2d at 643 (quoting State v. Bartholomew, 98 Wn.2d 173, 198, 654 P.2d 1170 (1982) (Bartholomew I), vacated, 463 U.S. 1203, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1983), aff’d on remand, 101 Wn.2d 631). Relevant rebuttal evidence is subject to a balancing test similar to ER 403, where it is admitted “ ‘ “[o]nly if the rebuttal value of the evidence outweighs the prejudicial effect.” ’ ” State v.

Lord, 117 Wn.2d 829, 891, 822 P.2d 177 (1991) (quoting Bartholomew II, 101 Wn.2d at 643 (quoting Bartholomew I, 98 Wn.2d at 198)). ¶65 Davis first argues that Davidson’s testimony was improper rebuttal evidence because, in his view, the professional opinions about his mental health could be rebutted only by expert testimony diagnosing his mental condition. However, the defendant’s own experts established that Davis’s conduct was relevant to determining whether he was affected by a mental illness.

Kolbell said that Davis’s ability to converse, follow a train of thought, and speak coherently factored into his “functional levels.” RP (May 8, 2007) at 3141. Kolbell, Muscatel, and Jessen all testified, without any defense objection, to Davis’s ability to communicate reasonably and understandably. From this testimony, the jury could reasonably conclude that Davis’s ability to engage in a “normal” manner during an interview six days after the crime was relevant to whether mental illness influenced the crime’s commission.

Davidson’s testimony was therefore a proper rebuttal. ¶66 Davis also contends that Davidson’s testimony about his interviewing experience and the difference between “street smarts” and academic knowledge had no relevance. In our view, this testimony laid a proper foundation for Davidson’s testimony about Davis’s behavior by showing why Davidson was capable of making the observations that he did.

This aided the jury in weighing the credibility of Davidson’s observations. ¶67 Davis is also incorrect that Davidson’s testimony was unduly prejudicial under the ER 403-like balancing test for rebuttal evidence in a capital case. The probative value of Davidson’s testimony was high because it provided a firsthand observation of Davis’s mental state near the time of the crime and allowed the jury to weigh the mental health experts’ after-the-fact evaluations.

In contrast, the prejudicial value was low because the evidence was not particularly gruesome, technical, or otherwise likely to cause an emotional or irrational decision. ¶68 Davis argues, additionally, that Davidson’s testimony was “thinly veiled” opinion testimony that Davis was not mentally impaired, an opinion that Davidson was not qualified to render since he was not qualified as an expert witness under ER 702. Appellant’s Opening Br. at 63. The State did not, however, seek to admit Davidson as an expert witness.

He was a fact witness and, consistent with this understanding, he testified only to his personal observations of and reactions to Davis’s behavior. The State specifically elicited testimony from Davidson that he was not trained in psychology or psychiatry.

The requirements for expert testimony in ER 702 are therefore inapplicable. ¶69 Alternatively, Davis argues that Davidson’s testimony was inadmissible lay opinion testimony under ER 701. “It is well established in Washington that a lay witness may testify concerning the sanity or mental responsibility of others, so long as the witness’ opinion is based upon facts he personally observed, and the witness has testified to such facts.” State v. Crenshaw, 27 Wn.

App. 326, 332-33, 617 P.2d 1041 (1980) (trial court did not abuse its discretion in admitting lay persons testimony that the defendant “ ‘seemed very normal’ ” on the day he decapitated his wife and police officer testimony about the defendant’s sanity soon after the offense), aff’d, 98 Wn.2d 789, 659 P.2d 488 (1983). Here, Davidson testified about Davis’s behavior during the interview and said that he personally had no concerns about Davis’s mental health.

Unlike the facts in cases cited by Davis, Davidson never invaded the jury’s province by testifying to an ultimate issue, such as whether Davis suffered from a mental illness at the time of the crime. See Ashley v. Hall, 138 Wn.2d 151, 156, 978 P.2d 1055 (1999) (lay witness’s testimony that accident was “unavoidable” was improper because it went beyond his rational sense perceptions to give an opinion on the ultimate issue of liability); State v. Farr-Lenzini, 93 Wn.

App. 453, 461, 970 P.2d 313 (1999) (trooper’s testimony that defendant was trying to get away from him was improper lay opinion where defendant’s intent to elude a police officer was an element of the crime). Davidson’s testimony was admissible as a lay opinion. ¶70 In

summary, the trial court did not abuse its discretion in admitting Davidson’s testimony. It properly rebutted the defense’s mental health experts because it gave the jury a tool by which to evaluate Davis’s mental state near the time of the crime and thereby weigh Davis’s expert testimony regarding his mental health. It was not unduly prejudicial and was an admissible lay opinion under ER 701. 5.

Did the trial court err in not instructing the jury that “major mental illness” could be a mitigating factor? ¶71 The trial court gave the following instruction regarding mitigating evidence: A mitigating circumstance is a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability or which justifies a sentence of less than death, although it does not justify or excuse the offense.

You are also to consider as mitigating circumstances any other factors concerning the offense or the defendant that you find to be relevant, including, but not limited to, the following: Whether the murder was committed while the defendant was under the influence of extreme mental disturbance, or Whether, at the time of the murder, the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental disease or defect. CP at 1165; RP (May 15, 2007) at 3490.

The two mitigating circumstances listed in this instruction correspond to two statutory mitigating factors. RCW 10.95.070(2), (6).

Over Davis’s objection, the court rejected Davis’s proposed instruction, which was identical to the instruction actually given except that it replaced the last paragraph with two nonstatutory mitigating circumstances: “[w]hether the defendant is mentally retarded” and “[w]hether the defendant suffers from a major mental illness.” CP at 1119. ¶72 Davis contends that because the trial court’s instruction on mitigating evidence led jurors to believe that the listed factors were the only mitigating factors relating to mental illness that it could consider, the instruction violated his right to have the fact finder consider all relevant mitigating circumstances. ¶73 In determining whether a jury instruction runs afoul of the constitutional requirement that the fact finder in a capital proceeding consider all relevant mitigating evidence, the test is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v.

California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990); In re Pers. Restraint of Benn, 134 Wn.2d 868, 921, 952 P.2d 116 (1998) (quoting Boyde, 494 U.S. at 380). The instruction must be viewed in light of the overall charge to the jury, not in “ ‘artificial isolation.’ ” Benn, 134 Wn.2d at 922 (internal quotation marks omitted) (quoting Boyde, 494 U.S. at 378). ¶74 In Gentry, we held that “[t]here is no constitutional requirement that each relevant mitigating circumstance be the subject of a specific instruction to the jury.

The requirement is that such evidence be allowed to be presented to the jury, but a specific instruction as to each potentially mitigating factor is not mandated.” Gentry, 125 Wn.2d at 650-51 (citing Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993)).

While we did hold in Gentry that the trial court did not err when it included nonstatutory mitigating circumstances in the jury instruction, we noted that in future cases, the better practice would be to include any statutory mitigating factors requested by the defendant but not to enumerate nonstatutory factors. ¶75 Here, there is not a reasonable likelihood that the jury read the instruction to preclude consideration of whether Davis suffered from a major mental illness.

The express language of the instruction defined “mitigating circumstance” in broad terms and went on to say the jury should consider “any other factors concerning the offense or the defendant that you find to be relevant, including, but not limited to, the following.” CP at 1165 (emphasis added). Gentry establishes that the instruction given here not only conformed with the constitutional requirement that the jury be allowed to consider all relevant mitigating circumstances, but also followed the preferred practice in Washington State by enumerating statutory but not nonstatutory mitigating factors. 6.

Did the deputy prosecutor’s comments prejudice Davis’s right to a fair trial? ¶76 Davis contends that several aspects of the prosecutor’s closing argument constituted misconduct, denying Davis his constitutional rights to have the jury consider all mitigating evidence and to a fair trial. In particular, Davis assigns error to the prosecutor’s (1) comments about compassion; (2) allegedly inflammatory remarks, including the re-creation of a possible dialogue between Davis and Couch during the rape and murder; (3) statement “If not now, then when?

And, if not Cecil Davis, then who[ ]?”; and (4) comments on whether Davis’s actions showed remorse. He asserts, additionally, that even if these instances of alleged misconduct alone do not support reversal, collectively they do. RP (May 15, 2007) at 3495. ¶77 To make a successful claim of prosecutor misconduct, the defense must establish that the prosecuting attorney’s conduct was both improper and prejudicial. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007); State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).

Conduct is improper if, for example, it encourages the jury to make a decision based on passion or prejudice, or if it refers to matters outside the record. See State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988). To be prejudicial, a substantial likelihood must exist that the misconduct affected the jury’s verdict. Yates, 161 Wn.2d at 774. Prejudicial effect must be judged by viewing the improper comments in context of the penalty phase as a whole, not in isolation.

Id. ¶78 If the defense does not object at trial, “Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request.” Hoffman, 116 Wn.2d at 93. Failure to object to an allegedly improper remark constitutes waiver unless the remark is “so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” Stenson, 132 Wn.2d at 719 (citing Gentry, 125 Wn.2d at 596).

If the defense does object to a prosecutor’s comment, we review the trial court’s ruling on the objection for abuse of discretion. Id. at 718. This standard of review recognizes that the trial court is in the best position to determine whether prosecutorial misconduct actually prejudiced the defendant’s right to a fair trial. Id. at 718-19.

Comments about compassion ¶79 Before closing argument took place, the jury was instructed that a mitigating circumstance was “a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating.” CP at 1165 (emphasis added); RP (May 15, 2007) at 3490. The jury was also instructed that “[throughout your deliberations you must not be influenced by passion, prejudice or sympathy.

You may find mercy for the defendant to be a mitigating circumstance” CP at 1159 (emphasis added); RP (May 15, 2007) at 3486. ¶80 In closing argument, the prosecutor said: Compassion is an emotion. Emotion is forbidden from playing a

part in your decision in this case. When you look through those jury instructions — you each have a copy of them and you are going to get the originals — you can look through them as many times as you want and you will not see the word “compassion” anywhere. You will see the word “emotion.” ‘Your verdict must be based upon reason and not emotion. You must not be influenced by passion, prejudice, or sympathy.” Quite frankly, you must not be influenced by compassion, prejudice or sympathy. We tell you to check those things at the door.

Don’t bring in your anger at this defendant and sentence him to death because of it. Don’t bring in your sympathy and compassion and sentence him to life because of it. You should keep the compassion in this case where it belongs. Feel sorry for Mrs. Couch. Feel sorry for her family. Feel sorry for the defendant’s family. None of them did anything to deserve to be here involved in this case. Do not feel sorry for this defendant, because he is about to get a sentence, a penalty, that he richly deserves. But, by the same token, you cannot let that emotion be the reason for your decision.

When you sentence this defendant to death, it must be for the right reasons, and those reasons are the evidence and the law. RP (May 15, 2007) at 3505-06. A

summary of the prosecutor’s comments regarding compassion was displayed to the jury in PowerPoint slides. Defense counsel did not object to this argument. ¶81 Davis argues these comments prohibited the jury from considering mercy and that this violated his Eighth and Fourteenth Amendment rights to have the jury consider all relevant mitigating circumstances.

In particular, he contends that because the dictionary definition of “mercy” includes the word “compassion” and because the two terms have been historically associated, the prosecutor’s closing argument improperly forbade the jury from considering mercy. ¶82 Even if the jury is required to be permitted to consider mercy, the prosecutor’s argument did not foreclose the jury from doing so.

The law draws a thin line between sympathy, which is based on a purely emotional response and may not be considered by a capital sentencing jury, and mercy, which is a reasoned moral response to evidence that the jury may take into account. Gentry, 125 Wn.2d at 648; In re Pers. Restraint of Rupe, 115 Wn.2d 379, 395-96, 798 P.2d 780 (1990). Contrary to Davis’s argument, the dictionary does not link “compassion” only to “mercy”; “compassion” is listed also as a synonym for “sympathy.” Webster’s Third New International Dictionary 1413, 2317 (2002).

Similarly, a historical association between mercy and compassion does not establish that compassion cannot also be thought of as an emotional, sympathetic response. The decisive factor is the context of the prosecutor’s argument, which consistently described compassion as an unreasoned, sympathetic response, not a reasoned, merciful one. E.g., RP (May 15, 2007) at 3505 (“Compassion is an emotion. Emotion is forbidden from playing a

part in your decision.”), 3506 (“[Y]ou cannot let that emotion [(compassion for Couch)] be the reason for your decision.”). The jury instructions twice listed mercy as a relevant mitigating factor, and on at least five occasions, defense counsel emphasized the jury’s ability to grant mercy. See Appellant’s Opening Br. at 84-85. Viewing the prosecutor’s remarks in the context of the penalty phase as a whole, it is unreasonable to conclude the jury would have felt barred from considering mercy.

Instead, jurors would have felt barred from making a decision based on pure emotion— whether that emotion is labeled as sympathy or compassion — which is exactly what the law requires. ¶83 Furthermore, there is no indication that the prosecutor’s remarks about compassion were flagrant and ill intentioned. To the contrary, the prosecutor’s argument revealed an intent to comply with the law by emphasizing that the jury should base its decision not on emotion, but on the evidence and reason.

Even assuming the prosecutor went too far, a jury instruction clarifying the definition of compassion could have cured any error. Inflammatory remarks and facts not in evidence ¶84 Davis argues that several elements of the prosecutor’s closing argument played on jurors’ passions and argued facts not in evidence. In particular, Davis identifies the following remarks as problematic: ¶85 1. The prosecutor’s description of the bathtub as Couch’s “death chamber.” RP (May 15, 2007) at 3512. ¶86 2. The prosecutor’s remarks encouraging the jurors to imagine Couch’s final hour and what she must have said to Davis.

For example, the prosecutor said when Davis entered the home, “[Y]ou can be sure that [Couch’s] first reaction was, ‘Get out of my house. What are you doing in my house? What do you think you’re doing?’ Or anything along those lines.” RP (May 15, 2007) at 3536. The prosecutor continued by saying that the moment when Davis started beating and rubbing on Couch was “probably when [she] started to beg. Maybe she changed her attitude about ‘get out of my house,’ and at that point she was telling Cecil Davis, ‘Leave me alone. Take whatever you want. Take anything you want, just leave me alone, leave my house.’ ” Id.

The description continued with more possible statements that Couch made. ¶87 3. The prosecutor’s discussion of mercy at the end of the same description of the crime: What mercy did the defendant show Mrs. Couch? And then he dragged her to the bathroom and he sat her on that bathtub. Maybe he told her, ‘You know what, cooperate with me here and I’ll let you live,” because you know that Mrs. Couch wasn’t going into that tub and going to her death quietly or voluntarily. And you can be sure that she was screaming and fighting and begging. And, who knows, maybe Mrs.

Couch even said, “Have mercy on me.” And what mercy did the defendant show her? He filled the bathtub with cold water. He forced her into that tub. He poured toxic chemicals on a rag. He put his hands around her throat, one of them at least, and then he put the other one on top of her face and he forced that rag against her nose and against her mouth. And as she struggled and fought just to breathe, she was rewarded with poisonous toxic chemicals. And you can be sure she wasn’t quiet still, because you know that Mrs. Couch knew that she was very close to death. She had to give everything she could.

And what mercy did the defendant show her? Eventually, Mrs. Couch stopped struggling. And, eventually, she stopped breathing. And probably the most compelling thing about this case that can be said is that at that point Mrs. Couch finally got some relief, finally got some mercy, but it wasn’t anything this defendant did. It wasn’t anything that he should be rewarded for. And so, when you decide how much mercy or whether to show mercy to this defendant, you should consider those final few minutes of Yoshiko Couch’s life on this earth. Id. at 3538-39. ¶88 4.

The prosecutor’s comment that while Davis received constitutional rights such as representation by counsel, the right to confront witnesses, and an impartial jury in determining whether he would live or die, Couch received no due process while facing death: “The defendant was her judge, jury, and executioner; no due process, no trial, no chance to present mitigation.” Id. at 3502. ¶89 5.

Comments implying that Davis scrubbed Couch’s vagina while she was alive, when the evidence did not show whether the scrubbing occurred while she was alive or dead: “[H]e put her in the bathtub, degraded her with no clothing on the bottom, scrubbed her vagina, and then he suffocated her.” Id. at 3574. ¶90 6. The argument that Davis’s background and psychological problems were not “true mitigation” but rather “excusefs].” Id. at 3524. ¶91 The defense did not object to any of these remarks. ¶92 Davis bases much of his argument on Urbin v.

State, 714 So. 2d 411, 421, 422 n.14 (Fla. 1998), a case in which the Florida Supreme Court held that a prosecutor committed misconduct during his closing argument when he put imaginary words in the victim’s mouth (“ ‘Don’t hurt me. . . .’ ”), argued that the jury should “ ‘show [the defendant] the same amount of pity that he showed [the victim] on September 1,1995, and that was none,’ ” and labeled the defense’s mitigation evidence as “ ‘excuses’ ” at least 11 times. Urbin is distinguishable because Florida law explicitly prohibited many of the comments at issue.

It could be said, therefore, that the prosecutor’s comments showed a flagrant disregard for precedent. See id. at 422 (“The fact that so many of these instances of misconduct are literally verbatim examples of conduct we have unambiguously prohibited in [several Florida cases] simply demonstrates that there are some who would ignore our warnings concerning the need for exemplary professional and ethical conduct in the courtroom.”). In contrast, Washington law does not clearly prohibit a prosecutor from making the comments made in Davis’s case. ¶93 Many of the remarks Davis identifies are proper.

First, the description of the bathtub as Couch’s “death chamber,” while strong, is accurate and grounded in fact. See RP (May 1, 2007) at 2733-34 (medical examiner’s testimony that Couch could have died in the bathtub). This comment did not incite the jury to make a decision based on improper grounds, but on a legitimate aggravating factor: the circumstances of the crime itself, and in particular, that Davis killed Couch by suffocating her with toxic chemicals in a bathtub.

In contrast, see Belgarde, 110 Wn.2d at 506-08 (prosecutor’s comments regarding the defendant’s membership in the American Indian Movement were misconduct because they encouraged the jury to render a verdict based on that affiliation rather than the evidence). |94 Second, in Davis’s first appeal, we rejected the argument that it was misconduct for the prosecutor to argue that the jury should show Davis the same amount of mercy that he showed Couch. Davis, 141 Wn.2d at 873. We also approved of the comment that Davis was Couch’s “ ‘judge, jury and executioner.’ ” Id. (quoting RP at 2518-19).

Davis’s only new support for the argument that these comments were prosecutorial misconduct is that the Florida Supreme Court did so in Urbin. As discussed earlier, Urbin is distinguishable because the prosecutor’s comments there were explicitly forbidden under Florida law. Urbin, 714 So. 2d at 422. We are not inclined to abandon our own directly binding precedent in favor of distinguishable, nonbinding authority. ¶95 Third, calling the defense’s evidence “excuses” was proper because context shows this label was directed at the evidence’s weight, not its relevance.

Significantly, the deputy prosecutor began discussing Davis’s mitigating evidence by reminding the jury that it should judge Davis’s mitigating evidence in the same way it judged any other evidence. The deputy prosecutor then pointed out several weaknesses of the evidence, such as that Davis’s brothers and sisters were not violent despite their similar upbringings; that the defense witnesses were not credible; and that “[t]he defendant says he hears voices, but they don’t tell him to kill people. They don’t tell him to rob or rape people.” RP (May 15, 2007) at 3523.

The prosecutor then summarized these arguments by saying that the defendant’s childhood and cognitive disorders were not true mitigation, but excuses. In this context, it is clear that there was no attempt to foreclose Davis from raising these issues. Rather, the argument was that the jury should give them little weight. ¶96 Moreover, there is no indication that any of the foregoing comments were flagrant or ill intentioned, or that they could not have been cured by a jury instruction.

In Gregory, 158 Wn.2d at 864-67, we held it was flagrant, ill-intentioned prosecutor misconduct to comment on prison life when the comments “blatantly violated” the trial court’s order excluding such evidence. Here, the deputy prosecutor’s comments did not violate any of the trial court’s evidentiary rulings and defense counsel did not indicate in any objections that the comments were inappropriate.

To the extent they were, it is unclear why a limiting instruction could not have cured any damage. ¶97 The prosecutor’s imagined dialogue between Couch and Davis during her rape and murder borders on improper. “In closing argument a prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence.” Gentry, 125 Wn.2d at 641. While it is reasonable to infer that Couch would have resisted Davis’s assault, inventing actual dialogue stretches the idea of a reasonable inference to near its breaking point.

However, because Davis did not object to this argument, the trial court did not have an opportunity to stop the prosecutor. As noted, reversal in such instances is warranted only if the prosecutor’s remarks were flagrant or ill intentioned. The context of the argument indicates that they were not. The deputy prosecutor began his recreation of the crime by explaining that the jury should look beyond the sterilized, after-the-fact evidence to imagine the actual crime and actual pain: [D]uring this trial you saw a videotape of the crime scene as it was found.

You saw photographs of the crime scene .... [A] 11 of that was done in a clinical setting. It is a controlled environment here. And, in fact, the videotape, the pictures, they’re kind of like silent movies. What they don’t really give you is what happened between the defendant and Mrs. Couch in the early morning hours of January 25th, 1997. RP (May 15, 2007) at 3535. As he went on to describe the crime, he often prefaced Couch’s imagined comments with qualifying language, such as “[m]aybe he told her” or “you can be sure that.” RP (May 15, 2007) at 3538, 3536, 3537.

While the better practice would be to not put words in Couch’s mouth at all, it was the prosecutor’s responsibility to aid the jury in comprehending the brutality of the crime. Given the argument’s context, the imagined dialogue was not so flagrant or ill intentioned that reversal is warranted in the absence of an objection. ¶98 The only remaining comment that could be considered improper is the implication that Couch’s vagina was scrubbed before death.

Davis does not dispute that the evidence showed that he scrubbed Couch’s vagina; he argues only that it was inconclusive whether the scrubbing occurred while she was alive. That being the case, we reject the suggestion that Davis was prejudiced in any way by this comment. “If not now, then when? And, if not Cecil Davis, then whor ¶99 In asking the jury to return a death penalty, the prosecutors asked the jurors during the opening statement and closing argument, “If not now, then when? And, if not Cecil Davis, then who[ ]?” RP (May 15, 2007) at 3495; RP (Apr. 27, 2007) at 2364.

In both instances, the defense objected. Davis asserts that this question improperly appealed to emotion and argued facts not in evidence by implying that Davis’s crime was worse than other aggravated murders. ¶100 In Gregory, a prosecutor made nearly identical arguments for imposing the death penalty when he asked without objection, “ ‘If not now, then when? And if not Allen Gregory, then who[ ]?’ ” and referred to the defendant as “ ‘the worst of the worst.’ ” Gregory, 158 Wn.2d at 856 (alteration in original) (quoting murder case Verbatim Report of Proceedings at 7717), 857.

While we did not directly address the “if not now, then when?” question, we held that the “worst of the worst” comment did not violate due process or constitute prosecutor misconduct. Id. ¶101 Similarly, the prosecutors here properly argued that the death penalty was appropriate in Davis’s particular case. Both times when they asked, “If not now, then when?” it was in the context of arguing that the death penalty was appropriate given the circumstances of the crime and Davis’s lengthy criminal history. The prosecutors never mentioned any other aggravated murders.

Davis has not met his burden of showing impropriety, much less flagrance or ill intention. Comments on remorse ¶102 The deputy prosecutor listed several actions of Davis’s after the crime, asking, “Are those the actions of somebody who was remorseful?” RP (May 15, 2007) at 3569.

Specifically, he noted that Davis stole Couch’s wedding ring, money from her purse, and groceries from her kitchen; left her in the bathtub with her vagina exposed and rubbed her vagina with household cleanser and an abrasive pad to cover up the crime; said “ ‘[t]hat bitch is next’ ” about a neighbor who was talking to police and pointing at his home; and told another inmate that he may have killed the “fucking old bitch,” but he did not rape her. Id. at 3570.

Each time the prosecutor asked if these actions showed remorse, the defense objected. ¶103 Davis argues that these comments constitute improper commentary on his right to remain silent because evidence of remorse could have come only from Davis’s testimony. This argument is without merit. Davis gives no explanation for why only words, and not actions, could show remorse, and common sense suggests the opposite. It is a well settled principle of criminal law that a person’s state of mind may be inferred from his or her actions. See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(

f) at 357 (2d ed. 2003). The fact that Davis burglarized Couch’s home after raping and murdering her, for example, could logically lead the jury to infer that he was not focused on “ ‘a gnawing distress arising from a sense of guilt for past wrongs’ ” but, rather, on an attempt to profit from his crime. Appellant’s Opening Br. at 100 (quoting Webster’s Third New International Dictionary 1921 (1993)). Many people other than Davis could, and did, testify to his acts after the crime.

The prosecutor’s question specifically directed the jury to consider whether Davis’s “actions” showed remorse, not whether his words did. His failure to testify was never mentioned and was not implicated. Cumulative error ¶104 Davis argues that even if no single comment of the prosecutors denied him a fair trial, the cumulative effect of the comments did. Davis has established that only two remarks were improper: the invented dialogue between Couch and Davis and the implication that Davis scrubbed Couch’s vagina while she was alive.

Since the latter comment is insignificant, as explained above, it adds little or nothing to the prejudice caused by the invented dialogue. Because the prejudice caused by the invented dialogue was tempered by its context, and because the impropriety was not flagrant or ill intentioned, it does not warrant reversal. 7. Does Davis’s sentence violate the Eighth Amendment to the United States Constitution and

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section 14 of the Washington Constitution? ¶105 Citing Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), Davis contends that Washington’s death penalty violates the prohibition in the Eighth Amendment to the United States Constitution against “cruel and unusual punishment! ].” Davis argues in support of this contention that the death penalty is inflicted arbitrarily on some defendants but not others. He also asserts that the death penalty, as applied to him, violates

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section 14 of the Washington Constitution under the four factors set forth in State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980). Large parts of these arguments were stricken pursuant to previous orders of this court, and, thus, we address each argument in its stricken form. Federal constitutional claim ¶106 Without the stricken appendices, little remains of Davis’s federal constitutional challenge. What is left is an argument that Washington’s death penalty violates the Eighth Amendment under Furman because “many of this state’s most prolific killers are spared.” Appellant’s Opening Br. at 111.

We recently rejected this argument in State v. Cross, 156 Wn.2d 580, 623-24, 132 P.3d 80 (2006), where we concluded that Furman’s prohibition against the arbitrary and capricious application of the death penalty was satisfied by the eight protections set forth in Washington’s special sentencing proceeding statutes,

chapter 10.95 RCW. We again rejected the argument in Yates, 161 Wn.2d at 792. Today, we reaffirm the holdings of Cross and Yates that Washington’s death penalty does not violate the Eighth Amendment. State constitutional claim ¶107 At trial, Davis brought two motions to dismiss, arguing that the death penalty was unconstitutional. His discussion of the Washington Constitution was limited to the following paragraphs in one of the motions: Just as the Eighth Amendment to the federal constitution prohibits cruel and unusual punishment, [a]rticle I,

section 14 of the Washington [C] onstitution prohibits “cruel punishment.” In fact, the state constitutional prohibition is broader than its federal counterpart. State v. Manussier, 129 [Wn].2d 652, 921 P.2d 473 (1996). The standards of decency governing capital jurisprudence under our state constitution have evolved to prohibit the execution of an individual convicted of a single-victim murder. Because Mr. Davis falls into this category, this [c]ourt should dismiss the death penalty. CP at 714-15. The balance of the motion was based on federal law and uncited statistics about the death penalty’s imposition. The trial court’s order denying that motion did not mention

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section 14. ¶108 On appeal, Davis has developed a full-fledged

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section 14 challenge based on the four factors in Fain, 94 Wn.2d 387. He supports this argument in part by statistics and data in appendices that we have stricken. Significantly, Davis has not assigned error to any of the findings or conclusions in the trial court’s ruling denying his motion to dismiss. ¶109 The State argues that Davis’s state constitutional claim is inadequately preserved for review under RAP 2.5. RAP 2.5(

a) states that an appellate court “may refuse to review any claim of error which was not raised in the trial court.” The purpose of this rule is to give the trial court a chance to correct the error and give the opposing party a chance to respond. 2A Karl B. Tegland, Washington Practice: Rules Practice RAP 2.5 author’s cmt. 1, at 233 (7th ed. 2011). ¶110 Notwithstanding the general rule, a party may raise a “manifest error affecting a constitutional right” for the first time on appeal. RAP 2.5(a).

To be manifest, an error must result in actual prejudice, that is, the asserted error must have had practical and identifiable consequences in the trial of the case. State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). “[T]o determine whether an error is practical and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error.” Id. at 100.

If the trial court could not have foreseen the potential error or the record on appeal does not contain suffi

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