      FILE
       IN CLERICS O,ICI                                     This oplnlcinwas filed for record
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 IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,                        )
                                            )
                  Petitioner,               )                 No. 88410-2
                                            )              (consolidated with
        v.                                  )                 No. 88411-1)
                                            )
JOSEPH T. McENROE,                          )                   En Bane
                                            )
                  Respondent.               )
                                            )      Filed         _SEP _0: 5 2013
                                            )
STATE OF WASHINGTON,                        )
                                            )
                Petitioner,                 )
                                            )
        v.                                  )
                                            )
MICHELE KRISTEN ANDERSON,                   )
                                            )
                Respondent.                 )




        WIGGINS, J.-ln this direct review of the 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

statutory scheme.
No. 8841 0-2 (consolidated with 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 sufficient to

merit leniency. That the prosecutor also considered the strength of its case in

making this determination is of no consequence. We therefore reverse the trial court

and remand with instructions to reinstate the notices of special sentencing

proceeding so that the cases against McEnroe and Anderson may proceed to trial.

       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 of Seattle, Inc. v. City of Seattle, 164 Wn.2d 35, 41, 186

P.3d 1032 (2008) ("We will avoid deciding constitutional questions where a case may

be fairly resolved on other grounds.").

                        FACTS AND PROCEDURAL HISTORY

  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, Erika Anderson; and respondent's five-year-old niece, Olivia Anderson,

and three-year-old nephew, Nathan Anderson. All victims were shot at least once,

and Judy, Scott, Erika, and Olivia were shot multiple times in the head and body.


                                               2
No. 88410-2 (consolidated with No. 88411-1)


     A friend of Judy Anderson'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 and Anderson arrived at the scene. McEnroe and

Anderson initially told police that they had gone to Las Vegas to get married on

December 24, but, upon police questioning, they changed their story 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, if the prosecuting

attorney concluded that there were insufficient mitigating factors to merit leniency, he

was required to file a notice of special sentencing proceeding to consider the death

penalty no later than 30 days after charging Anderson and McEnroe. The trial court

granted a motion to extend this time limit. In January 2008, the prosecutor wrote 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 prosecutor filed a notice of

special sentencing proceeding to determine whether he would seek the death

penalty. At the same time, he released a statement in which he indicated that he was

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 of two young children, [he] f[ou]nd that there [were] not sufficient reasons to

keep the death penalty from being considered by the [jurors who] will ultimately hear

these matters." Clerk's Papers (CP) at 48.




                                              3
No. 88410-2 (consolidated with 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'

November 2012 motion to dismiss notices of special sentencing proceeding, arguing

that the prosecutor's consideration of the strength of the evidence against McEnroe

and Anderson violated their rights to equal protection of the 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

of the 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 of evidence, the prosecutor violated equal protection of the

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 of whom 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


                                              4
No. 88410-2 (consolidated with 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's early 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

consider whether there 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
appellate jurisdiction in all cases except: ... (d) cases involving fundamental and urgent issues
of broad public import requiring prompt and ultimate determination .... "
2
  RAP 4.4 provides in pertinent part that "[t]he Supreme Court, to promote the orderly
administration of justice may, ... upon certification by the Court of Appeals, transfer a case from
the Court of Appeals to the Supreme Court .... "
3
  While the motion for discretionary review was pending, the trial court denied the State's motion
to stay the effective date of the order striking notices of special sentencing proceeding. The trial
court also issued a follow-up ruling justifying its initial order striking the notices, struck the trial
date, excused jurors, and stayed further proceedings pending the outcome of this discretionary
review. The State made an emergency motion in this court requesting the stay of the trial court's
ruling striking the notices, which our commissioner granted.


                                                   5
No. 88410-2 (consolidated with No. 88411-1)


fully comply with their statutory duties. We encourage holistic, individualized

prosecutorial assessments in determining whether 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

reinstate the notices of special sentencing proceeding.

  I.   RCW 10.95.040 requires the prosecutor to determine only whether mitigating
       circumstances are insufficient to merit leniency

       Our '"fundamental objective in construing a statute is to ascertain and carry

out the intent of the 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 of a statute by reading it in its entirety and consider the entire

sequence of all statutes relating to the same subject 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 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.

This statute requires the prosecutor to make only one determination: whether "there

is reason to believe that there are not sufficient mitigating circumstances to merit

leniency." /d. If the prosecutor believes that mitigating circumstances are insufficient,

the prosecutor must file written notice of a special 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



                                                  6
No. 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, or the court if a jury is waived, may consider any relevant factors" in addition to

the eight enumerated factors contained in RCW 10.95.070. 4 If the trier of fact "finds

that there are not sufficient mitigating circumstances to merit leniency, the sentence


4
    These factors include:

                  (1) Whether the defendant has or does not have a significant history,
          either as a juvenile or an adult, of prior criminal activity;

                   (2) Whether the murder was committed while the defendant was under
          the influence of extreme mental disturbance;

                    (3) Whether the victim consented to the act of murder;

                 (4) Whether the defendant was an accomplice to a murder committed by
          another person where the defendant's participation in the murder was relatively
          minor;

                    (5) Whether the defendant acted under duress or domination of another
          person;

                   (6) Whether, at the time of the murder, the capacity of the 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 sentenced to death;

                 (7) Whether the age of the defendant at the time of the crime calls for
          leniency; and

                  (8) Whether there is a likelihood that the defendant will pose a danger to
          others in the future.

RCW 10.95.070(1)-.070(8).


                                                     7
No. 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 relevant factor.

       We may also resort to the dictionary definition of "mitigate." State v. Kintz, 169

Wn.2d 537, 547, 238 P.3d 470 (201 0). 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 eight factors listed in RCW 10.95.070 and any other relevant factor, i.e.,

those circumstances that require a punishment less severe than death.

 II.   The prosecutor complied with his statutory duty by making a determination
       based on whether mitigating circumstances were sufficient to merit leniency

       When he decided to seek the death penalty against McEnroe and Anderson,

the prosecutor considered mitigation information and determined that there were 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 that the prosecutor fulfilled 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



                                              8
No. 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 the jury. /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 may consider the strength of evidence when determining whether
        to file a notice of special 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 not the only reason a prosecutor might decide not



                                               9
No. 88410-2 (consolidated with No. 88411-1)


to seek the death penalty. The strength of the 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). Davis and Rupe demonstrate that although we have never squarely decided

whether prosecutors can weigh the strength of evidence against mitigating

circumstances when deciding to file a notice of special sentencing proceeding, we

have certainly assumed that they can.

       Respondents assert that RCW 10.95.040 mandates that prosecutors consider

only mitigating circumstances in making the determination to seek the death penalty.

The trial court too indicated that the prosecutor should not weigh the strength of the

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 illogical for several reasons.

       First, as discussed, RCW 10.95.040(1) contains no prohibition on what the

prosecutor can consider in making his or her determination to file a notice of special

sentencing proceeding. The only statutory requirement is that the prosecutor file the

notice when mitigating circumstances are not sufficient to merit leniency. The trial




                                              10
No. 88410-2 (consolidated with No. 88411-1)


court and respondents point to no textual prohibition against considering the

strength of evidence in deciding whether to seek the 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' theory that the statute mandates

that only mitigation evidence be considered. After all, RCW 10.95.040(1) provides no

textual authority for the consideration of the facts and circumstances or the strength

of evidence. Moreover, the strength of a particular case might very well be a fact 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 of their evidence.

       Third, as the State argues, the determination whether to seek the death

penalty should require an elected prosecutor "to inform him- or herself as 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 of obtaining a conviction.


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
why the uniqueness of the statute should effect a different statutory interpretation.


                                              11
No. 88410-2 (consolidated with No. 88411-1)


      We hold that Washington prosecutors may consider the strength of evidence,

along with the facts and circumstances of the crime, when they determine whether

there are sufficient mitigating circumstances to merit leniency.

IV.   RCW 10.95.040 does not grant prosecutors unfettered discretion or violate
      the principles of equal protection

      Since the inception of the current Washington 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

whether to seek capital punishment do not violate these constitutional principles.

       The first "unfettered discretion" challenge came in State        v.   Campbell, 103

Wn.2d 1, 24,691 P.2d 929 (1984). There, we noted that "equal protection of the 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 of such circumstances may prosecutors seek death, we

held that RCW 10.95.040(1) was constitutional. Campbell, 103 Wn.2d at 25.

       We have since expanded on the Campbell analysis, 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. Restraint of Harris, 111 Wn.2d 691, 693, 763 P.2d 823



                                              12
No. 88410-2 (consolidated with 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 of special sentencing proceeding on the basis of equal

protection, the trial court did not engage in the above analysis based in our case law,

but instead set forth the following 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 a jurisdiction 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 of mitigation to the prosecutor. The prosecutor declines to file
       the notice of intent as to the second defendant but does file the notice
        as to the first. The difference in the result has nothing whatsoever to do
       with individual moral culpability of the respective defendants but hinges
        rather on the wholly unrelated factor of the strength of the evidence in
        the State's case as to guilt. In this hypothetical, insufficiency of proof of
        mitigation was clearly not the consideration guiding the prosecutor's
        discretion ....




                                              13
No. 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 except for the

strength of the 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 at the 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 comply with 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 that they did not. The fact that he also considered the strength of the

case is inconsequential. Indeed, holistic assessments that take into account various

mitigating circumstances, the facts of the case, and the strength of evidence are just

the type of individualized determinations we require of our prosecutors. Without a

flexible weighing of various factors, prosecutors likely would make standardless

decisions that violate equal protection principles. For these reasons, we reverse the

trial court and remand this matter with instructions to reinstate the notices of special

sentencing proceeding so that the capital prosecutions against McEnroe and

Anderson may finally proceed to trial.


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




      WE CONCUR




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