Ann Marie Summers, Deborah A. Dwyer, King County Prosecutor's Office, Seattle, WA, for Petitioner.
Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Respondent.
Pamela Beth Loginsky, Washington Assoc. of Prosecuting Attorney, Olympia, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.
[179 Wn.2d 124] ¶ 1 The King County prosecuting attorney charged Christopher Monfort with one count of aggravated [179 Wn.2d 125] first degree murder for the death of a law enforcement officer. He then filed a notice of special sentencing proceeding (hereinafter " death penalty notice" ) pursuant to RCW 10.95.040 (1). The statute provides, " If a person is charged with aggravated first degree murder ..., the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency. " RCW 10.95.040(1) (emphasis added). Monfort's defense (hereinafter " the defense" ) moved to strike the notice on the basis that the county prosecutor considered the facts of the crime and lacked a factual basis for making a determination under the statute. The trial court denied the defense's motion on the first basis but granted it on the second. It stated that the county prosecutor had failed to exercise discretion as required by constitutional and statutory law. The State moved for discretionary review, as did the defense, and we granted review. After considering the parties' arguments, we reverse the trial court. Furthermore, we hold that a county prosecutor may consider the facts of the crime when deciding whether to file a death penalty notice, and the judiciary may review only whether a prosecutor has a " reason to believe that there are not sufficient mitigating circumstances" under RCW 10.95.040(1).
¶ 2 I. Did the trial court err in not striking the death penalty notice because the county prosecutor considered the facts of the crime?
¶ 3 II. Did the trial court err in striking the death penalty notice because the county prosecutor did not consider enough mitigation evidence?
FACTUAL AND PROCEDURAL HISTORY
¶ 4 A person is guilty of aggravated first degree murder if he or she commits first degree murder involving one or [179 Wn.2d 126] more statutory aggravating factors (e.g., a victim who was serving as a law enforcement officer). RCW 10.95.020(1). In November 2009, the King County prosecuting attorney charged Monfort with one count of aggravated first degree murder for the death of a law enforcement officer as well as one count of first degree arson and three counts of first degree attempted murder. In December 2009, the superior court arraigned Monfort. Absent a showing of good cause, Washington statutory law requires a county prosecutor to file and serve a death penalty notice within 30 days after arraignment (here, January 13, 2010). RCW 10.95.040(2). If a county prosecutor fails to give timely notice, he or she may not seek the death penalty. RCW 10.95.040(3). Moreover, before a county prosecutor can file a death penalty notice, he or she must determine whether " there is reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040(1).
¶ 5 On the day of arraignment, the county prosecutor sent the defense an offer to extend the 30-day filing period to six months (June 2010), requested that defense counsel submit his mitigation materials in five months for review, and invited defense counsel to discuss the prosecutor's decision two weeks before the deadline. The defense agreed, and the trial court extended the statutory filing deadline to June 2010.
¶ 6 In February 2010, the defense wrote the prosecutor that it did not expect to meet the deadline because the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003) required it to exhaustively investigate Monfort's life. It explained that Monfort's age (41), lack of criminal history, and residency in multiple states complicated
the investigation. In April 2010, the defense moved to extend the filing deadline to December 2010. It argued that it needed more time to complete a mitigation investigation that would meet standards of effective assistance of counsel and the ABA Guidelines. At a hearing, the [179 Wn.2d 127] trial court noted that ex parte status reports showed that the defense and prosecution were investigating expeditiously. Notably, the defense stated that it would not share any mitigation evidence with the prosecution by the current deadline. In the end, the trial court ordered the defense to meet with the county prosecutor and set a follow-up status conference.
¶ 7 In May 2010, the defense met with the prosecution twice (but not the county prosecutor himself) and reaffirmed its position not to share mitigation evidence until its investigation was complete. Ultimately, the county prosecutor acknowledged the defense's challenges and met it halfway by agreeing to extend the deadline by three months (to September 2010) and asking the defense to submit its mitigation evidence by August 2010. The county prosecutor also renewed his offer to meet with the defense before making his decision. The defense refused to promise to give the prosecution a " competent mitigation package" by August 2010. Clerk's Papers at 138. In response, the prosecution asked the defense to provide any mitigation evidence in its possession at that time. The defense then revealed that issues with funding and experts had delayed the start of its investigation until April 2010. The trial court extended the statutory filing deadline to September 2010.
¶ 8 In July 2010, the defense informed the prosecution it would not meet the August deadline and renewed its request for a December deadline. The prosecution acknowledged that the defense was refusing to provide any mitigation evidence by the August deadline, noted it had shared evidence, including evidence gathered by its private investigator, and declined to agree to an extension. The defense replied that it regretted that the prosecution would not afford it time to complete a mitigation package that met the ABA Guidelines and noted that it had interviewed 14 acquaintances, friends, and relatives of Monfort and gathered information from 5 states, but that it needed to interview 40 more persons in 15 states.
[179 Wn.2d 128] ¶ 9 In August 2010, the defense again moved to extend the filing deadline to December 2010. The prosecution opposed the motion but reiterated that it would consider the defense's mitigation evidence at any time. The trial court denied the defense's motion. The defense sought discretionary review in this court, which was denied. In September 2010, the county prosecutor filed a death penalty notice.
¶ 10 Almost two years later the defense moved to strike the death penalty notice. Among other things, the defense argued that the notice should be struck because the county prosecutor had insufficient facts to make a determination under RCW 10.95.040(1) and because the county prosecutor considered the facts of the crime when making his determination under the same. The trial court held a hearing on the motions in October 2012. In January 2013, the defense stated it would share its mitigation package with the prosecution the following month. (In its brief to this court, the prosecution stated that it had not received the defense's mitigation package as of April 2013.)
¶ 11 In February 2013, the trial court announced its ruling. The trial court denied the defense's motion to strike the death penalty notice because the county prosecutor considered the facts of the crime. As for the other motion, the trial court made four determinations: (1) the defense had consistently maintained that it was preparing a mitigation package for the penalty phase and for the prosecutor's determination whether to file a death penalty notice; (2) the prosecutor knew the defense was not developing its mitigation package to delay the fact-finding investigation; (3) the court assured the prosecutor that the defense was proceeding to develop its mitigation package in accordance with the ABA Guidelines; and (4) the prosecutor " relied upon a flawed, practically useless mitigation investigation prepared by its own investigator." ...