Argued June 26, 2014
Reconsideration denied November 5, 2014.
Appeal from King County Superior Court. Docket No: 07-1-08716-4. Judgment or order under review Date filed: 01/02/2014. Judge signing: Honorable Jeffrey M. Ramsdell.
Daniel T. Satterberg, Prosecuting Attorney, and Andrea R. Vitalich, Scott M. O'Toole, and James M. Whisman, Deputies, for appellant.
Kathryn L. Ross (of Washington State Death Penalty Assistance Center ); Leo J. Hamaji ; and William J. Prestia, Colleen E. O'Connor, and David P. Sorenson (of King County Department of Public Defense ), for respondents.
Suzanne L. Elliott, Lila J. Silverstein, and Mark A. Larranaga on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.
AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez, Justice Mary I. Yu.
Gordon McCloud, J.
[181 Wn.2d 377] ¶ 1 The State charged Joseph McEnroe and Michele Anderson with aggravated first degree murder and seeks a sentence of death for each of them. In January of this year, roughly five and a half years after [181 Wn.2d 378] the State filed its notices of intent to seek the death penalty, the trial court ruled that the absence of " 'sufficient mitigating circumstances to merit leniency,'" RCW 10.95.060(4), is an essential element of the crime of capital murder in Washington and, hence, that the State must allege the absence of sufficient mitigating circumstances in the charging information. The trial court therefore gave the State two weeks to amend each charging information to allege insufficient mitigating circumstances. The order said that if the State failed to amend the information, the court would entertain a defense motion to dismiss the State's notices of intent to seek the death penalty.
¶ 2 The State seeks reversal of that order. It also asks that the case be reassigned to a different trial judge on remand.
¶ 3 We reverse the trial court's order compelling the State to amend each information or face dismissal of the notice of special sentencing proceeding. We deny the State's motion for reassignment.
¶ 4 In late December 2007, Joseph McEnroe and Michele Anderson (defendants) were charged with six counts of aggravated first degree murder. The State filed a notice of intent to seek the death penalty in each case.
¶ 5 Under Washington's death penalty statute, the State must file a notice of its intent to seek the death penalty (the " notice of special sentencing proceeding" ) " when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040(2), (1). That notice must be filed within 30 days after arraignment unless the court grants an extension. RCW 10.95.040(2). In this case, the trial court granted several extensions and the State did not file the notice until October 2008.
¶ 6 In November 2012, the defendants moved to dismiss the death penalty notices on the grounds that the prosecutor [181 Wn.2d 379] had violated their constitutional rights when, in determining whether to seek the death penalty, he had considered the strength of the State's evidence. The trial court granted that motion, and the State sought interlocutory review by this court. The State also moved in the trial court to stay the order until five days after this court issued its decision on the motion for discretionary review. The trial court denied that motion, but the Supreme Court commissioner stayed the effect of the trial court's order pending review by this court. We ultimately granted review
and reversed the trial court. State v. McEnroe, 179 Wn.2d 32, ...