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### IN THE SUPREMECOURTOFTHE STATE OFWASHINGTON STATE OFWASHINGTON, Petitioner,


### v. JOSEPH

### T. McENROE, Respondent.
STATE OFWASHINGTON, Petitioner,


### v. MICHELE KRISTENANDERSON, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 88410-2 (consolidatedwith No. 88411-1) En Bane
Filed 

## _SEP _0:

## 52013

WIGGINS, J.-ln this direct review ofthe trial court's dismissal of notices of special death penalty sentencing proceedings, the King County prosecuting attorney asks us to decide whether he violated Washington's capital punishment statutes by considering the strength of evidence against respondents Joseph McEnroe and Michele Anderson when he determined to seek the death penalty for the shooting deaths of six people. We hold that the prosecuting attorney did not violate the statutoryscheme.No. 88410-2 (consolidatedwith No. 88411-1) RCW 10.95.040(1) directs the prosecutor to "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." The prosecutor in this case complied with the statute in question by considering mitigating circumstances and determining that there was reason to believe that the mitigating circumstances were not sufficientto merit leniency. That the prosecutor also considered the strength of its case in making this determination is ofno consequence. Wetherefore reverse the trial court and remand with instructions to reinstate the notices of special sentencing proceeding sothatthe cases against McEnroeandAnderson mayproceed totrial. Because we resolve this case by interpreting RCW 10.95.040, we decline to address the delicate constitutional issue of separation of powers raised by the parties. Cmty. Telecable ofSeattle, Inc. v. City ofSeattle, 164 Wn.2d 35, 41, 186 P.3d 1032 (2008) ("Wewill avoid deciding constitutional questionswhere acase may befairly resolved on othergrounds."). FACTSAND PROCEDURALHISTORY 

### I. Factual background In Carnation, Washington, on December 24, 2007, six members of the Anderson family were gunned down in their home: respondent Michele Anderson's parents, Judy and Wayne Anderson; respondent Anderson's brother, Scott, and sister-in-law, ErikaAnderson; and respondent's five-year-old niece, OliviaAnderson, and three-year-old nephew, Nathan Anderson. All victims were shot at least once, and Judy, Scott, Erika, and Oliviawereshot multipletimes in the head and body.

2No. 88410-2 (consolidated with No. 88411-1) Afriend ofJudyAnderson's discovered this horrific scene two days later after Judy failed to show for work or respond to phone calls. Police quickly responded. During the investigation, McEnroe andAnderson arrived atthe scene. McEnroe and Anderson initially told police that they had gone to Las Vegas to get married on December24, but, upon police questioning, they changed theirstory and confessed to the murders. On December 28, 2007, the State charged Anderson and McEnroe with six counts of aggravated first degree murder. Under RCW 10.95.040, ifthe prosecuting attorneyconcluded thattherewere insufficient mitigating factors to merit leniency, he
was required to file a notice ofspecial sentencing proceeding to considerthe death penalty no laterthan 30 days after charging Anderson and McEnroe. The trial court granted a motion to extend this time limit. In January 2008, the prosecutorwrote to defense counsel to extend the time frame for the consideration of mitigating circumstances and asking the defense to submit mitigation materials by April 10, 2008. Following further extensions, in October 2008 the prosecutorfiled a notice of special sentencing proceeding to determine whether he would seek the death penalty.Atthe sametime, he released astatement in which he indicatedthat hewas obliged to consider mitigating evidence, but that "[g]iven the magnitude of these alleged crimes, the slaying of three generations of a family, and particularly the slaying oftwo young children, [he] f[ou]nd thatthere [were] not sufficient reasons to keepthe death penaltyfrom being considered bythe [jurorswho] will ultimately hear these matters." Clerk's Papers (CP) at48.

3No. 88410-2 (consolidatedwith No. 88411-1) II. Pretrial proceedings Following the prosecutor's notices of special sentencing proceeding, defense counsel began seeking information that formed the basis of the prosecutor's decision-making in this case and in other capital cases. Defense counsel brought
numerous motions under various theories to probe the prosecutor's reasons for seeking the death penalty. This hotly contested issue culminated in respondents' November2012 motionto dismiss notices ofspecial sentencing proceeding, arguing that the prosecutor's consideration ofthe strength ofthe evidence against McEnroe andAnderson violated their rightsto equal protection ofthe laws and due process. In January 2013, the trial court granted the respondents' motion and struck the notices of special sentencing proceeding on two grounds. First, the trial court concluded that the prosecutor violated RCW 10.95.040 by considering the strength ofthe evidence against McEnroe and Anderson in deciding to file notices of special sentencing proceeding. The trial court reasoned that the prosecutor could consider only the circumstances of the case and the mitigation information, but could not consider the strength of the State's case. Second, the trial court ruled that by considering the strength ofevidence, the prosecutorviolated equal protection ofthe law by "seek[ing] varying degrees of punishment when proving identical criminal elements." CP at 605. The trial court based its equal protection ruling on hypothetical defendants whose crimes and mitigating circumstances were identical but against only one ofwhom the State had strong evidence. Because the strength of the cases against these hypothetically identical defendants would comprise the only reason that one would face the possibility of the death penalty and the other

4No. 88410-2 (consolidatedwith No. 88411-1) would not, the trial court concluded that considering the strength of evidence violated equal protection. See id. at 609 ("In a scenario suggestive of Camus, a defendant'searly confession and cooperation could become his downfall.").

Ill. Discretionary and direct review The State promptly sought discretionary review of the trial court's ruling striking the notices of special sentencing proceeding. The State also moved for acc'elerated review and to consolidate the cases against each respondent. The Court of Appeals certified the cases for transfer to this court pursuant to RCW 2.06.030(d)1 and RAP 4.4.2 We consolidated the cases and granted discretionary review. 3 ANALYSIS We hold that prosecutors may consider the strength of their cases in determining whether to file a notice of special sentencing proceeding seeking the death penalty pursuant to RCW 10.95.040. The statute does not prohibit consideration of the strength of the State's case and as long as prosecutors considerwhetherthere are sufficient mitigating circumstances to merit leniency, they

1 RCW 2.06.030 provides in pertinent part that the Court of Appeals "shall have exclusive appellatejurisdiction in all cases except:

... (d) cases involving fundamental and urgent issues ofbroad public import requiring promptand ultimate determination

...."
2 RAP 4.4 provides in pertinent part that "[t]he Supreme Court, to promote the orderly administration ofjustice may, ... upon certification bythe CourtofAppeals, transferacasefrom the Court ofAppealstothe Supreme Court

...." 3Whilethe motionfordiscretionary reviewwas pending, thetrial court deniedthe State's motion to stay the effective dateofthe orderstriking notices ofspecial sentencing proceeding. The trial court also issued afollow-up ruling justifying its initial order striking the notices, struckthe trial date, excusedjurors, and stayed further proceedings pending the outcome ofthis discretionary review. The State made an emergency motion in this court requesting the stay ofthetrial court's ruling striking the notices, which our commissionergranted.
5No. 88410-2 (consolidated with No. 88411-1) fully comply with their statutory duties. We encourage holistic, individualized prosecutorial assessments in determiningwhether capital punishment is appropriate in order to fulfill equal protection guaranties and to promote sound public policy. Accordingly, we reverse the trial court and remand this case with instructions to reinstatethe noticesofspecial sentencing proceeding. I. RCW 10.95.040 requires the prosecutorto determine onlywhether mitigating circumstances are insufficientto merit leniency Our '"fundamental objective in construing a statute is to ascertain and carry out the intent ofthe legislature."' State 

## v. Veliz, 176 Wn.2d 849, 854, 298 P.3d 75 (2013) (quoting State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012)). "'We construe the meaning ofa statute by reading it in its entirety and considerthe entire sequence ofall statutes relating tothe samesubject matter."'

### /d. RCW 10.95.040(1) provides: If a person is charged with aggravated first degree murder as defined by RCW 10.95.020, the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whetheror notthe death penalty should be imposed when there is reason to believe that there are notsufficient mitigating circumstancesto meritleniency. This statute requires the prosecutorto make only one determination: whether "there is reason to believe that there are not sufficient mitigating circumstances to merit leniency."

### /d. Ifthe prosecutor believesthat mitigating circumstances are insufficient, the prosecutormustfilewritten noticeofaspecial sentencing proceeding. RCW 10.95.040(1) does not define "mitigating circumstances" or provide any guidance as to when mitigating circumstances are sufficient to merit leniency. But reading the statutory scheme as a whole, we consider other provisions in chapter

6No. 88410-2 (consolidated with No. 88411-1) 10.95 RCW, which also employ the term "mitigating circumstances" in relation to what the jury may consider in a special sentencing proceeding. RCW 10.95.060(4) requires a jury considering the death penalty to answer the question, '"Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?"' RCW 10.95.070 elaborates that, in answering this question, "the jury, orthe court ifajury is waived, may consider any relevantfactors" in addition to the eight enumerated factors contained in RCW 10.95.070.4 Ifthe trier offact "finds that there are not sufficient mitigating circumstances to merit leniency, the sentence

4Thesefactors include: (1) Whether the defendant has or does not have a significant history, eitheras ajuvenile oran adult, ofpriorcriminal activity; (2) Whether the murder was committed while the defendant was under the influence ofextreme mental disturbance; (3)Whetherthevictim consentedtothe act ofmurder; (4) Whetherthe defendantwas an accomplice to a murder committed by another person where the defendant's participation in the murderwas relatively minor; (5) Whether the defendant acted under duress or domination of another person;(6) Whether, at the time of the murder, the capacity ofthe defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired as a result of mental disease or defect. However, a person found to have an intellectual disability under RCW 10.95.030(2) may in no case be sentencedto death; (7) Whether the age of the defendant at the time of the crime calls for leniency; and (8) Whetherthere is a likelihood that the defendant will pose adangerto others in thefuture. RCW 10.95.070(1)-.070(8).
7No. 88410-2 (consolidated with No. 88411-1) shall be death." RCW 10.95.030(2). Thus, we interpret the term "mitigating circumstances" in chapter 10.95 RCW to mean the factors listed in RCW 10.95.070
as well as any relevantfactor. We may also resortto the dictionary definition of"mitigate." State 

### v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). The dictionary defines the verb "mitigate" as "to make less severe, violent, cruel, intense, painful." WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY 1447 (2002). Thus, a mitigating circumstance is a circumstance that requires a less severe result. In the capital punishment context, it is reasonable to believe that the legislature intended "mitigating circumstances" to include the eightfactors listed in RCW 10.95.070 and any other relevant factor, i.e., those circumstancesthat require a punishment less severethan death.

II. The prosecutor complied with his statutory duty by making a determination based on whether mitigating circumstanceswere sufficientto merit leniency When he decided to seek the death penalty against McEnroe and Anderson, the prosecutorconsidered mitigation information and determinedthattherewere not sufficient mitigating circumstances to merit leniency. After making this determination, he filed notices of special sentencing proceeding as the statute directed. Accordingly, we hold thatthe prosecutorfulfilled his duties under RCW 10.95.040. The prosecutor made clear statements regarding his consideration of mitigating circumstances. In the press release announcing his plans to seek capital punishment, the prosecutor acknowledged that he "has the obligation in potential capital murder cases to consider all relevant information about the crime and to weigh that against any mitigating evidence favoring the charged defendants." CP at



### 8No. 88410-2 (consolidated with No. 88411-1) 48. In performing this weighing exercise, the prosecutor did exactly as instructed by the statute: he found "that there [were] not sufficient reasons to keep the death penalty from being considered" by thejury. 

### /d. Furthermore, in response to defense counsel's request for clarification regarding the information the prosecutor considered, the prosecutor indicated that he "considered the facts and circumstances alleged that form[ed] the basis for charging" the respondents and also "considered mitigation materials submitted by defense counsel."

### /d. at 52. Thus,
we conclude that the prosecutor did as the statute directed: he considered whether the mitigating circumstances sufficed to merit leniency.

Ill. Prosecutors mayconsiderthe strength ofevidencewhen determiningwhether tofile a notice ofspecial sentencing proceeding Aside from considering reasons to believe that mitigating circumstances are not sufficient to merit leniency, RCW 10.95.040(1) neither requires nor precludes consideration of any other information. Logically speaking, in making the determination of the sufficiency of mitigating circumstances, prosecutors must realistically consider other factors that weigh against mitigation. Nothing in the statutory language suggests that the strength of the evidence cannot be one of these other factors. Indeed, in many respects it makes good sense for prosecutors to reflect on the strength of their cases before deciding to seek the ultimate punishment. We have acknowledged the importance of the strength of evidence in the prosecutorial decision to seek the death penalty before. Recently, in State 

### v. Davis,
we noted, "Mitigating evidence is notthe only reason a prosecutor might decide not

9No. 88410-2 (consolidated with No. 88411-1)
to seek the death penalty. The strength ofthe State's case often influences that decision." 175 Wn.2d 287, 357, 290 P.3d 43 (2012) (emphasis added). Less recently, we "assume[d] that prosecutors exercise their discretion in a manner [that] reflects their judgment concerning the seriousness of the crime or insufficiency of the evidence." State v. Rupe, 101 Wn.2d 664, 700, 683 P.2d 571 (1984) (emphasis added). Davisand Rupedemonstratethatalthough we have neversquarelydecided whether prosecutors can weigh the strength of evidence against mitigating circumstances when deciding to file a notice of special sentencing proceeding, we havecertainlyassumedthatthey can. Respondents assertthat RCW 10.95.040 mandatesthat prosecutors consider onlymitigating circumstances in making the determinationto seekthe death penalty. The trial courttoo indicated that the prosecutor should notweigh the strength ofthe State's case against the mitigating circumstances because mitigation is focused solely on the moral culpability of the defendant. Essentially, these arguments boil down to a requirement that prosecutors consider mitigating circumstances in a vacuum. Such a requirement is illogicalforseveral reasons. First, as discussed, RCW 10.95.040(1) contains no prohibition on what the prosecutorcan consider in making his or herdetermination to file a notice ofspecial sentencing proceeding. The only statutory requirement is thatthe prosecutorfile the notice when mitigating circumstances are not sufficient to merit leniency. The trial

10No. 88410-2 (consolidated with No. 88411-1)
court and respondents point to no textual prohibition against considering the strength ofevidence in decidingwhetherto seekthe death penalty.5 Second, the trial court determined and respondents concede that prosecutors may consider the facts and circumstances of the case alongside mitigation evidence. This concession contradicts respondents'theorythatthe statute mandates that only mitigation evidence be considered.Afterall, RCW 10.95.040(1) provides no textual authorityforthe consideration ofthe facts and circumstances orthe strength of evidence. Moreover, the strength ofa particular case might very well be afact or circumstance of the case. In short, if prosecutors can consider the facts and circumstances of the case, it would be anomalous to preclude them from considering the strength oftheirevidence. Third, as the State argues, the determination whether to seek the death penalty should require an elected prosecutor "to inform him- or herselfas thoroughly and completely as possible." Opening Br. of Pet'r at 34. We agree. Prosecutors, in exercising their executive functions, better serve the public by holistically considering all facts and circumstances related to the crime, which, realistically, include the strength of evidence, rather than forcing tunnel vision. Given the time and expense it takes to prepare and try a capital case, it makes good sense for a prosecutor to seek the death penalty only when the prosecutor believes there is a good chance ofobtaining aconviction.

5 Respondents and the trial court believe Washington's capital punishment scheme is unique because it directs prosecutors to consider mitigating circumstances rather than aggravating circumstances in coming to a decision on seeking capital punishment. Yet it remains unclear whythe uniqueness ofthe statute should effect adifferentstatutory interpretation.

11No. 88410-2 (consolidated with No. 88411-1) We hold thatWashington prosecutors may considerthe strength of evidence, along with the facts and circumstances ofthe crime, when they determine whether there are sufficient mitigating circumstancesto merit leniency.

IV. RCW 10.95.040 does not grant prosecutors unfettered discretion or violate the principles ofequal protection Since the inception ofthe currentWashington capital sentencing scheme, we have upheld the statutes' constitutionality despite equal protection challenges that they provide prosecuting attorneys with too much discretion. Today we reaffirm our jurisprudence that prosecutors who make individualized assessments in deciding whetherto seekcapital punishmentdo notviolatethese constitutional principles. The first "unfettered discretion" challenge came in State 

### v. Campbell, 103 Wn.2d 1, 24,691 P.2d 929 (1984). There, we notedthat "equal protection ofthe laws is denied when a prosecutor is permitted to seek varying degrees of punishment when proving identical criminal elements." !d. at 25. But '"no constitutional defect exists when the crimes [that] the prosecutor has discretion to charge have different elements."' /d. (quoting State

### v. Wanrow, 91 Wn.2d 301, 312, 588 P.2d 1320 (1978)). Because prosecutors must consider mitigating circumstances and because only in the absence or insufficiency ofsuch circumstances may prosecutors seek death, we held that RCW 10.95.040(1)was constitutional. Campbell, 103Wn.2d at25. We have since expanded on the Campbellanalysis, requiring prosecutors to "perform individualized weighing of the mitigating factors" and noting that "an inflexible policy is not permitted." State

### v. Pirtle, 127 Wn.2d 628, 642, 904 P.2d 245 (1995); see also In re. Pers. RestraintofHarris, 111 Wn.2d 691, 693, 763 P.2d 823

12No. 88410-2 (consolidatedwith No. 88411-1) (1988). Thus, in order for a prosecutor to constitutionally exercise discretion when deciding to file notices of special sentencing proceeding, the prosecutor must engage in an individualized weighing of mitigating factors. Because individualized weighing enables prosecuting attorneys to come to a decision tailored to the unique circumstances of every case, there is not standardless discretion and therefore no equal protection violation. See, e.g., State v. Cross, 156 Wn.2d 580, 625, 132 P.3d 80 (2006); State v. Benn, 120 Wn.2d 631, 671, 845 P.2d 289 (1993); State 

### v. Bartholomew, 104 Wn.2d 844, 848-49, 710 P.2d 196 (1985); Rupe, 101 Wn.2d at 700. In striking the notices ofspecial sentencing proceeding on the basis ofequal protection, thetrial court did not engage in the above analysis based in ourcase law, but instead setforth thefollowing hypothetical: Consider two defendants who separately commit identical offenses in King County, Washington. The first defendant commits his offense in a jurisdiction that has ample resources and an excellent investigation unit. As a result, the evidence in that case is substantial and the case against that defendant is strong on the merits. The second defendant, however, commits his offense in ajurisdiction that has fewer resources and an undertrained, overtaxed police force. The evidence in that case is comparatively sparse, and the case against that defendant is weak on the merits. Both defendants are subsequently charged with aggravated murder in the first degree. Both defendants submit identical evidence ofmitigation to the prosecutor. The prosecutor declinesto file the notice of intent as to the second defendant but does file the notice as to thefirst. The difference in the result has nothing whatsoeverto do with individual moral culpability ofthe respective defendants but hinges rather on the wholly unrelated factor ofthe strength ofthe evidence in the State's case as to guilt. In this hypothetical, insufficiency of proofof mitigation was clearly not the consideration guiding the prosecutor's discretion

....

13No. 88410-2 (consolidated with No. 88411-1) CP at 622. This hypothetical unrealistically assumes that there are two identical crimes and two identical defendants and thereby forecloses the possibility of an individualized assessment by asking us to assume everything is equal exceptforthe strength ofthe evidence at hand. Thus, the hypothetical does not illustrate a realistic equal protection violation but demonstrates exactly why we require individualized determinations from our prosecuting attorneys. In reality, prosecutors must make individual assessments by looking atthe crime, the mitigation packet, the strength of evidence, the desires of surviving family members, and many other factors governing the ultimate decision to seek capital punishment. Only by engaging in such a multifaceted, individualized consideration do prosecuting attorneys complywith the equal protection clause. CONCLUSION The King County prosecuting attorney followed the statutory requirements when he considered whether mitigating circumstances merited leniency and when he determined thatthey did not. The factthat he also considered the strength ofthe
case is inconsequential. Indeed, holistic assessments that take into accountvarious mitigating circumstances, thefacts ofthe case, and the strength ofevidence arejust the type of individualized determinations we require of our prosecutors. Without a flexible weighing of various factors, prosecutors likely would make standardless decisions thatviolate equal protection principles. Forthese reasons, we reverse the trial court and remand this matterwith instructionsto reinstate the notices ofspecial sentencing proceeding so that the capital prosecutions against McEnroe and Anderson mayfinally proceed totrial.

14No. 88410-2 (consolidated with No. 8841'1-1)

WE CONCUR



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