Jeremy Sagastegui, 27, died hours after
the U.S. Supreme Court lifted a stay of execution issued Sunday by the
9th U.S. Circuit Court of Appeals.
On Nov. 19, 1995, Sagastegui beat, raped,
stabbed and drowned Keivan Sarbacher, whom he was baby-sitting at a
friend's home in Finley, a small town in south-central Washington.
Sagastegui then shot and killed Keivan's mother, Melissa Sarbacher, 21,
and her friend Lisa Vera-Acevado, 26, when they arrived home.
He later asked a jury to give him the
death penalty, saying: "I killed the kid, I killed the mother and I
killed her friend. And if their friends had come over, I would've killed
Sagastegui had asked that no appeals be
filed on his behalf, raising questions about his competency.
On Sunday, a panel of the 9th Circuit, in
a 2-1 decision, ruled that evidence presented by Sagastegui's mother
warranted additional hearings. Katie Vargas contended her son was
sexually abused as a child and mentally ill.
Sagastegui said nothing as he lay
strapped to a gurney in the execution chamber.
"Inmate Sagastegui has no last words.
The process will continue," prison Superintendent John Lambert said
shortly before the execution.
Benton County Prosecutor Andy Miller, one
of the witnesses, said Sagastegui "never showed any compassion, any
Carl Sonderman, a lawyer for Sagastegui, agreed.
"We all recognize Jeremy was a
sociopath," he said.
Sources: Associated Press & Rick
Jeremy Sagastegui, 27, 98-10-13, Washington
In Walla Walla, a man who killed three people, including a 3-year-old
boy he was baby-sitting, was executed by injection early Tuesday.
Jeremy Sagastegui, 27, died hours after the U.S. Supreme Court lifted a
stay of execution issued Sunday by the 9th U.S. Circuit Court of Appeals.
On Nov. 19, 1995, Sagastegui beat, raped, stabbed and drowned Keivan
Sarbacher, whom he was baby-sitting at a friend's home in Finley, a
small town in south-central Washington. Sagastegui then shot and killed
Keivan's mother, Melissa Sarbacher, 21, and her friend Lisa Vera-Acevado,
26, when they arrived home.
He later asked a jury to give him the death penalty, saying: "I killed
the kid, I killed the mother and I killed her friend. And if their
friends had come over, I would've killed them, too."
Sagastegui had asked that no appeals be filed on his behalf, raising
questions about his competency.
On Sunday, a panel of the 9th Circuit, in a 2-1 decision, ruled that
evidence presented by Sagastegui's mother warranted additional hearings.
Katie Vargas contended her son was sexually abused as a child and
Sagastegui said nothing as he lay strapped to a gurney in the execution
"Inmate Sagastegui has no last words. The process will continue," prison
Superintendent John Lambert said shortly before the execution.
Benton County Prosecutor Andy Miller, one of the witnesses, said
Sagastegui "never showed any compassion, any remorse."
Carl Sonderman, a laawyer for Sagastegui, agreed."We all recognize
Jeremyt was a sociopath," he said.
Sagastegui becomes the 1st condemned prisoner to be executed in
Washington this year, and the 3rd overall since the state resumed
capital punishment in 1993. The other executions were by hanging.
(sources: Associated Press and Rick Halperin)
Put To Death -- State's First Execution By Lethal Injection
By Florangela Davila and David
Postman - Seattle Times
Tuesday, October 13, 1998
In the end, Jeremy Sagastegui's mother and the court
of appeals couldn't save him. And the U.S. Supreme Court and Gov. Gary
Locke chose not to.
Sagastegui, 27, died at the state penitentiary in
Walla Walla at 12:43 a.m. today, the first person to be executed in the
state by lethal injection and only the third executed in the state since
Sagastegui, who never expressed remorse in the three
years since he killed a boy and two women, said no last words.
Reporters who witnessed the execution described it
this way: After Sagastegui was strapped to a gurney, a medical team
hidden in a room behind a two-way mirror pushed buttons to administer
the lethal dose of chemicals - thiopental sodium, pancuronium bromide
and potassium chloride - mixed with saline.
Sagastegui took one look at the witnesses, then
stared at the ceiling. After a moment he seemed to breathe in quick
spasms. His eyelids fluttered. His breathing stopped.
Sagastegui was executed for the November 1995 murders
of 3-year-old Keiven Sarbacher; the boy's mother, Mellisa Sarbacher, 21;
and her friend, Lisa Vera-Acevedo, 26.
From the time he killed, he said he committed the
murders because he knew he would receive the death penalty. And until
his mother fought in court, nothing was in the way of Sagastegui's death.
But whether the execution was going to proceed was
not known until within a few hours of midnight.
In the end the U.S. Supreme Court and Locke allowed
the execution to proceed because they both agreed that Sagastegui was
mentally competent and had a right to waive some of his legal rights and
that the state had the right to execute him.
The final attempt, a petition to the state Supreme
Court by lawyers for Sagastegui's mother, was rejected shortly before
Sagastegui was baby-sitting two children in a mobile
home in Finley, east of Kennewick, when the boy awoke and started crying.
Sagastegui raped and then drowned the boy. Then he found a rifle and
waited two hours before the mother arrived home. He shot her to death
and also shot her friend.
The following day, police arrived at an apartment in
Kennewick, and Sagastegui gave them his bloody clothes, the rifle and
the keys to Sarbacher's truck, which he had stolen. He immediately
What made his case unusual is that Sagastegui acted
as his own lawyer, never presented a defense, never introduced any
details of his personal history or called any witnesses on his behalf.
Benton County Superior Court ordered him evaluated
for his mental competency, and the proceedings began. He pleaded guilty
and was convicted by a jury in 1996 and sentenced to death. He waived
his right to appeal.
Because Sagastegui was a "volunteer" who never fought
his death sentence, the case sped through the system. The state Supreme
Court did its mandatory review of the case in April 1998. Sagastegui
urged them to let him die. The court upheld his conviction and sentence.
Last month his mother, Cayetana "Katie" Vargas,
stepped in and fought for Sagastegui, presenting the picture of a man
she said had been repeatedly sexually and physically abused as a child.
Vargas argued that her son suffered serious mental
disorders. She wanted a stay of execution. Her requests were the first
time a third party had sought legal standing as "next friend" in a
Washington capital-punishment case.
Sagastegui's case became his mother fighting the
state, with each side presenting its own medical experts arguing whether
Sagastegui was, or was not, mentally competent.
At each turn, Sagastegui filed declarations to the
court saying he was sane and competent and that the execution should
Vargas made her requests to the state Supreme Court
and then to the U.S. District Court. Both refused her petitions. The 9th
U.S. Circuit Court of Appeals heard her case and said in a 2-1 decision
that she had provided meaningful evidence that raised doubts about her
The court granted a stay and ordered the case back to
the trial court in Benton County and to the state Supreme Court, and
that a new hearing be held to determine whether Sagastegui was competent.
Sagastegui's execution was put on hold. But the state
Attorney General's Office immediately appealed the decision to U.S.
Supreme Court Justice Sandra Day O'Connor, asking the court to lift the
stay. Yesterday, she referred the case to the full court, and last night
the court voted 7-2 to lift the stay, with Justices John Paul Stevens
and Stephen Breyer dissenting.
Locke had been petitioned by Vargas to commute her
son's sentence. Last week, the state Clemency and Pardons Board split
2-2 on forwarding a clemency recommendation to the governor.
The governor waited until after the Supreme Court
ruled before announcing his decision last night.
"It has been said that Jeremy Sagastegui wishes to
commit suicide by doing nothing to fight for his life," Locke said in
his statement. "It is therefore implied that a `normal person' would not
proceed this way and that the state is assisting in his suicide. That's
"We should not expect cold-blooded murderers to hold
the same sanctity for life - including their own - that we do."
Meanwhile, Sagastegui ate his last meal: pizza, fries,
corn, jellied fruit salad, ice cream and an eclair.
Candise Myers, Kasie Sarbacher and Robert Getz,
relatives of Sagastegui's victims, witnessed the execution. Although
Sagastegui had requested that his mother be a witness, no member of his
Outside the prison, about 100 death-penalty opponents
prayed silently in a fenced area downhill from the prison. About 50
death-penalty advocates in another area 50 feet away had already left
the prison grounds by the time Sagastegui died.
Since the U.S. Supreme Court lifted its ban on the
death penalty in 1976, Washington state had had two previous executions
- Westley Allan Dodd in 1993 and Charles Rodman Campbell in 1994, both
by hanging. In 1996, the Legislature changed state law to make lethal
injection the primary form of execution.
Death-penalty foes said Sagastegui was allowed to
manipulate the legal system.
"Serious questions were raised all along the way,"
said Sheryl Gordon McCloud, a Seattle attorney who helped represent
Vargas. "There is such a problem with volunteers because it allows the
system to run amok. It does away with all the checks and balances."
The victims' family members left the execution
quietly this morning, comforting each other.
"I feel a lot better now I know it is done," said
Kasie Sarbacher, 22, Mellisa Sarbacher's sister.
Myers said she is glad it is over.
"My daughter and my grandson are finally at peace,"
she said. "Justice has been done. It's not vindictive. It needed to be
done for closure for us."
Seattle Times staff reporters Florangela Davila and
David Postman contributed to this report. Information from the Walla
Walla Union-Bulletin was also used.
convicted of three counts of aggravated 1st-degree murder for the
drowning and beating of Keiven Sarbacher, 3, and the shooting deaths of
his mother, Mellisa Sarbacher, 27, and a second woman, Lisa
The killings occurred November
19, 1995, in a mobile home in rural Finley, Washington, located east of
Kennewick, where Sagastegui had been baby-sitting Sarbacher's two
children. The second child, a 1-year-old girl, was unharmed.
Sometime between the evening
hours of November 18 and the early morning hours of November 19, at a
residence in Finley, Jeremy Sagastegui sexually abused, beat, stabbed
and then drowned Kievan Sarbacher (Kievan), a three-year-old boy who was
in his care. Sagastegui then waited for Kievan's mother, Melissa
Sarbacher (Sarbacher), to return home. When she did so, he shot her and
her friend, Lisa Vera-Acevado, who had accompanied Sarbacher home.
The convicted triple murderer
refused to fight his execution. His mother filed for a stay on
his behalf but it was denied as Sagastegui was found competent, and
therefore no third party, including his mother, could file on his behalf.
He was executed on October 13, 1998 by lethal injection
at the age of 27.
135 Wn.2d 67, STATE v. SAGASTEGUI
[No. 63744-0. En Banc.]
THE STATE OF WASHINGTON, Respondent,
VARGAS SAGASTEGUI, Appellant.
Argued October 22, 1997.
Decided April 30, 1998.
 Criminal Law - Punishment - Death Penalty -
Review General Appellate Review - Waiver - Validity - Standard of Review.
The validity of a capital defendant's waiver of general appellate review
is reviewed de novo by the Supreme Court.
 Criminal Law - Punishment - Death Penalty -
Review General Appellate Review - Waiver - Effect. In
a prosecution for a capital crime in which the defendant, after
conviction, has validly waived the right to general appellate review,
the Supreme Court is required nonetheless to address the mandatory
review questions posed by RCW 10.95.130 that pertain to the penalty
phase of the case.
 Criminal Law - Punishment - Death Penalty -
Review General Appellate Review - Waiver - Validity - Test. The validity
of a capital defendant's waiver of the right to general appellate review
depends upon whether the waiver is knowing, voluntary, and intelligent.
A capital defendant's waiver of the general appeal right is knowing,
voluntary, and intelligent if the defendant (1) has the capacity to
understand the choice between life and death and to knowingly and
intelligently waive any and all appeal rights, (2) has been provided
with sufficient information so as to be able to make a knowing,
voluntary, and intelligent decision, and (3) fully understands the
consequences of waiver.
 Criminal Law - Punishment - Death Penalty -
Special Sentencing Procedure - Mitigating Circumstances Necessity. A
competent defendant convicted of a capital offense may elect not to
present any mitigating evidence in the penalty phase of the proceedings.
 Criminal Law - Right to Counsel - Right To
Proceed Pro Se - Judicial Interference - Validity. A court may not
override the constitutional right of a fully informed and competent
criminal defendant to direct the course of the defendant's own legal
 Criminal Law - Punishment - Death Penalty -
Review Record - Mitigating Evidence - Absence - Effect. The Supreme
Court may conduct statutory review of a death sentence even though no
mitigating evidence was presented to the jury in the penalty phase of
the proceedings if it was the defendant's own choice not to present any
such evidence and the defendant was competent to make that choice.
 Criminal Law - Punishment - Death Penalty -
Special Sentencing Procedure - Mitigating Circumstances - Sufficiency of Evidence - Test. There is sufficient
evidence to support a jury's verdict that there are not sufficient
mitigating circumstances to merit leniency in sentencing a defendant
convicted of a capital crime if any rational trier of fact, viewing the
evidence most favorably toward the State, could have found sufficient
evidence to justify the verdict beyond a reasonable doubt.
 Criminal Law - Punishment - Death Penalty -
Special Sentencing Procedure - Mitigating Circumstances - Effect. The
fact that mitigating circumstances have been presented to the jury in
the penalty phase of a death penalty case does not require the jury to
grant leniency to the defendant if the jurors are convinced that the
mitigating circumstances are outweighed by the circumstances of the
 Criminal Law - Punishment - Death Penalty -
Review Special Sentencing Procedure - Mitigating Circumstances
Sufficiency of Evidence - Circumstances in Record Not Presented to Jury.
In the penalty phase of a capital case in which the defendant has
elected not to present any mitigating evidence, the jury's verdict that
there are not sufficient mitigating circumstances to merit leniency in
sentencing will not be overturned by the Supreme Court on the basis of
mitigating evidence in the record not presented to the jury if the court
finds that the mitigating evidence is counterbalanced by the aggravating
circumstances of. the crime.
 Criminal Law - Punishment - Death Penalty -
Review Proportionality - Purpose. The purpose of
proportionality review of a death sentence as mandated by RCW
10.95.130(2)(b) is to ensure that the sentence is not imposed in a
wanton or freakish manner.
 Criminal Law - Punishment - Death Penalty -
Review Proportionality - Factors. Proportionality
review of a death sentence as mandated by RCW 10.95.130(2)(b) is
conducted by comparing the case at bar to other similar cases with
respect to (1) the nature of the crime, (2) the aggravating
circumstances, (3) the defendant's criminal history, and (4) the
defendant's personal history.
 Criminal Law - Punishment - Death Penalty -
Review Proportionality - Similar Cases - Determination.
Proportionality review of a death sentence as
mandated by RCW 10.95.130(2)(b) is guided by overlapping similarities
and family resemblances between cases; proportionality review is not
meant to ensure that there are no variations from case to case or that
the sentence is always imposed in superficially similar circumstances.
Neither is proportionality analysis a matter of mathematical
precision or scientific certainty. While the number of aggravating
factors and victims in a case are points of comparison, they are not
 Criminal Law - Punishment - Death Penalty -
Review Proportionality - Absence of Criminal Record. A capital
defendant's lack of a significant criminal record does not necessarily
mean that the death sentence as applied to the defendant is
 Criminal Law - Punishment - Death Penalty -
Review Passion or Prejudice - Review of Record. In a capital case in
which the jury has returned a verdict in the penalty phase that there
are not sufficient mitigating circumstances to merit leniency in
sentencing, the Supreme Court determines whether the verdict was brought
about by passion or prejudice by examining the record for any evidence
that the jury was inflamed by passion or prejudice in rendering the
Nature of Action: Prosecution for three counts of
aggravated first degree murder.
Superior Court: The Superior Court for Benton
County, NO. 95-1-00679-91 Carolyn A. Brown, J., on February 12, 1996 ,
entered a judgment on a plea of guilty and a sentence of death on a
verdict finding that there were not sufficient mitigating circumstances
to warrant leniency in sentencing the defendant.
Supreme Court: Holding that the defendant's waiver
of general appellate review was knowing, voluntary, and intelligent;
that the defendant had the right not to present any mitigating evidence
in the penalty phase of the proceedings; that the evidence was
sufficient to support the jury's verdict in the penalty phase; that the
sentence of death was not disproportionate to sentences imposed in other
similar cases; that the jury's verdict was not the result of passion or
prejudice; and that no evidence was presented that would indicate that
the defendant was mentally retarded, the court affirms the judgment and
sentence and remands the case for further proceedings.
Jeremy V Sagastegui, pro se.
Sonderman & Swanberg, by Carl G. Sonderman, for
Andrew K. Miller, Prosecuting Attorney, for
Michael P Iaria, Roger A. Hunko, and Jeffrey E.
Ellis on behalf of Washington Association of Criminal
Defense Lawyers, amicus curiae.
ALEXANDER, J. - Jeremy Sagastegui pleaded guilty in
Benton County Superior Court to three counts of aggravated first degree
murder. Following a special sentencing hearing, a jury returned with the
answer "yes" to the question, "[h]aving 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?" Clerk's Papers (CP) at 144.
Following receipt of the verdict,
and imposition of a death sentence, the trial court approved
Sagastegui's waiver of his right to appeal and to have assistance of
counsel on review. Thereafter, Sagastegui has consistently refused to
defend himself or to reconsider his decisions to not pursue an appeal or
have the benefit of counsel, and he has not presented any brief to this
court. The Death Penalty Committee of the Washington
Association of Criminal Defense Lawyers did, however, petition to appear
as amicus curiae on the issues this court is required to review pursuant
to RCW 10.95.130, and we granted its petition.
FACTS OF THE OFFENSES
Sometime between the evening hours of November 18
and the early morning hours of November 19, 1995, at a residence in
Finley, Washington, Jeremy Sagastegui sexually abused, beat, stabbed and
then drowned Kievan Sarbacher (Kievan), a three-year-old boy who was in
his care. Sagastegui then waited for Kievan's mother, Melissa Sarbacher
(Sarbacher), to return home. When she did so, he shot her and her
friend, Lisa Vera-Acevado, who had accompanied Sarbacher home.
Later, on November 19, 1995, deputies of the Benton
County Sheriff's Office were dispatched to Sarbacher's residence after
receiving a call from a neighbor. There, they found the body of
Vera-Acevado lying outside the home. The deputies then went inside the
residence and discovered Sarbacher's body on the floor of the living
room. In one bedroom, they found two-year-old Tiana Sarbacher standing
in a crib. She was unharmed. In the master bedroom, they found the
lifeless body of three-year-old Kievan lying on a bed. The child, who
was wrapped in a green terry cloth towel, appeared slightly bluish in
color and was cold to the touch.
The deputies observed a large bloody butcher knife
next to Kievan's body. They also found a jar of petroleum jelly on the
bed. A later examination of Kievan's corpse with a forensic light
disclosed three small droplets on the inner thigh. An examination of the
substance in the jar with the forensic light revealed that it luminesced
in the same manner as did the droplets discovered on the child's body.
Within a bathtub in a bathroom located near the master bedroom, the
investigating deputies found water and toys. They also found bloodstains
on the side of the tub.
Autopsies were performed on the bodies of all three
victims by Dr. Terri Haddix, a forensic pathologist. Haddix found that
Kievan had been stabbed in the right side of his abdomen. She also
observed bruising about the child's head and three lacerations in
Kievan's anus, all of which had produced bleeding. She opined that
penetration of "something" into the anal canal would have produced these
lacerations. Report of Proceedings (RP) at 1041. She believed that the
wounds to Kievan's anus were of recent origin based on the fact that
there was no evidence of healing or inflammation. Haddix concluded that
Kievan's death was not caused by any of the aforementioned injuries but,
rather, by drowning. This conclusion was based on her discovery of the
presence of foam within Kievan's nose and upper airways and her finding
that the child's lungs were expanded in appearance.
Haddix concluded that Vera-Acevado's death was
caused by a single gunshot wound to the middle of her chest. Sarbacher,
on the other hand, had been shot twice. One bullet penetrated her chest
and the other entered through her neck and passed through her brain.
Haddix could not determine which wound was suffered first, but she
opined that either would have been fatal.
Detectives from the Benton County Sheriffs Office
also conducted several interviews on November 19. One interview was with
Sarbacher's friend, Korina Barnett, who told the detectives that she had
seen Sarbacher and VeraAcevado twice during the evening of November 18.
Sarbacher told Barnett at one point during the evening that Sagastegui
was baby-sitting Sarbacher's two children. Karen Southham,
Vera-Acevado's cousin, informed the detectives that she knew they were
looking for Sarbacher's black Ranger truck.
The following day, November 20, Southham observed
the Ranger truck in the parking lot of the apartment building where
Sagastegui was living. She immediately reported this observation to the
Benton County Sheriff's Office. CP at 425. That same day, Scott
Peterson, Sagastegui's roommate, told Sheriffs detectives that
Sagastegui had called him on the afternoon of November 18 and asked if
he "could bring Melissa's kids over." CP at 425. Peterson said that he
declined Sagastegui's request. Peterson indicated that he let Sagastegui
into their apartment early on the morning of November 19 and that
Sagastegui could still be found at that location.
Benton County detectives immediately obtained a
warrant authorizing a search of Sagastegui's apartment. Sagastegui was
at his apartment when the detectives arrived to execute the warrant.
Upon confronting Sagastegui, the detectives advised him of his Miranda
rights. Sagastegui indicated that he would waive his rights and would
talk to the detectives. He proceeded to tell the detectives that there was a set of keys in his closet and "something
under the couch . . . that [they] would be interested in." RP (2/6/96)
In response to Sagastegui's remark, the detectives
lifted the couch and found beneath it a ".30/.30" rifle with a brown
leather strap. It was later identified as belonging to Wes Boulware,
Sarbacher's friend, who indicated that he normally kept the rifle at the
residence where Sarbacher was killed. The detectives also retrieved a
set of keys from Sagastegui's closet and determined that they fit into
the door lock and ignition of the black Ranger truck.
Bullets and bullet fragments recovered from
Sarbacher's home were sent to the Washington Crime Laboratory along with
the rifle found at Sagastegui's apartment. After conducting tests on
these items, experts at the laboratory concluded that the bullets
discovered at the scene had been fired from the rifle. Tests also
revealed that Sagastegui's fingerprints were on the rifle. In addition,
the crime laboratory concluded that Sagastegui's fingerprints matched
fingerprints found on a lampshade and beer can which were found at
Sarbacher's residence as well as those found on a bathroom wall within
Sagastegui was then taken to Benton County
Sheriff's Office. After readvising him of his constitutional rights,
Detectives Terry Carlson and Phil Carpenter asked Sagastegui if he had
any information about the homicides in Finley. Sagastegui replied that
he had killed all three persons whose bodies had been found. He then
gave a detailed, tape-recorded statement recounting the events that had
taken place on the night of November 18 and the morning of November 19.
Sagastegui told the detectives that he had agreed
to babysit for Sarbacher on Saturday evening, November 18th at her home
in Finley. He said, that before Sarbacher left her home that night, he
helped her put her two children, Tiana and Kievan, to bed. According to
Sagastegui, Kievan woke up later that evening, "screaming and yelling"
for his mother. CP at 159. Sagastegui said that he told Kievan to "shut up" and when he did not do so, he "grabbed
him and shoved his head into a pillow." CP at 159.
Sagastegui was unclear about the sequence of events
that occurred thereafter. Although he said that he stabbed Kievan and
raped him anally, using a jar of Vaseline in the process, he did not
recall which act he committed first. Sagastegui went on to say that
after stabbing Kievan, he put the child into the bathtub to "make sure
he was dead," and then wrapped Kievan in a towel "so his guts wouldn't
spill out all over the place" and threw him onto the bed. CP at 163.
Sagastegui told the detectives that he then got a
rifle from a bedroom and checked to see if it was loaded. While waiting
for Sarbacher to come home, he became angry because she knew he was
"nuts already and she asked [him] to babysit these kids." CP at 164. He
admitted that his plan was to shoot Sarbacher when she walked through
the door. CP at 164. Sagastegui said that when Sarbacher entered the
residence he pointed the rifle at her. He described her reaction,
saying, "she's asking me what I'm doing with that and walks by like
she's . you know, like nothing." CP at 166.
Sagastegui told Carlson and Carpenter that the
rifle did not work the first time he tried to shoot Sarbacher with it.
This caused him to be "more amazed now than mad" because she did not
"like run or something." CP at 167, 166. He pulled the trigger again and
this time it worked, causing Sarbacher to "fall[ ] back." CP at 167.
When VeraAcevado entered the doorway of Sarbacher's residence, he shot
her too, causing her to fall backward, landing outside of the house.
Sagastegui told the detectives that he wished Vera-Acevado had not shown
up but that "she was there and she saw me so I shot her." CP at 167.
Sagastegui said that he had to shoot "Melissa [Sarbacher] twice cause
she was still alive." CP at 168. He noted that Sarbacher was screaming
and "there was terror in that girl's eyes," but he thought the terror
was more from her fear of "what happened to her kids" and that "you
[had] to give her credit for that." CP at 168.
Sagastegui said that after he shot Sarbacher, he
got up out of his chair and asked her "how it felt" and saw that she was
already dead. CP at 169. He then went outside and asked Vera-Acevado the
same question and saw that "all she was doing was gurgling." CP at 169.
He then told her to "hurry up and die or something." CP at 169.
Sagastegui told the detectives that he then took the rifle, got into the
Sarbacher's black Ranger truck and drove to his home. Upon arriving
home, he hid the rifle under the couch and then went to bed.
The detectives questioned Sagastegui about why he
committed these crimes. Sagastegui responded that Sarbacher was "the
worst mother in the world." CP at 170. He said that Kievan had been
showing signs of being molested and he was "going to grow up to be a
molester . . . and he was a bad kid anyway." CP at 171. Sagastegui told
the detectives that the child "didn't deserve to die but . . . he had no
supervision * . . [and] was probably going to grow up to be a
murderer.,, CP at 171. Sagastegui went on to state that Vera-Acevado's
death was a mistake. He indicated that the day following the murders, he
did not realize what he had done until he "saw it on the news," maybe
because "you want to black out things that are you know are bad." CP at
Sagastegui acknowledged that it "was kind of a
thrill" to watch Sarbacher die, but that killing "the baby was sick." CP
at 176, 177. When asked about molesting Kievan, Sagastegui said,
No, in fact I was[n't] even sexually aroused. I
just started ... beating on the kid. I wanted to snap his neck and I
kept twisting it and twisting it and he ... throwing him around ... and
I'm not even sexually arous[ed]. Then I figured ... maybe I was getting
off to this so I tried messing around with him and it wouldn't work ...
so ... eventually it did, you know, but ... I don't think, you know, I
was out to molest the kid in the first place. I think, you know, it was
just ... I don't even know what it was but it was sick. I mean it was a
different feeling than what I got from the mother. But the mother ... I
actually smiled and I I I think I almost got off on it. CP at 177. Sagastegui added that "it felt . . .
good" and that he started "thinking about going . . . to Food Pavilion
with the rifle and just start shooting people" but that he 49 was a
little tired so [he] went to bed." CP at 177.
Near the end of his interview with Sagastegui, the
detectives asked him if there was anything he wanted to add. He answered
that he felt sorry for his mother and that he wanted the detectives to
"tell her before she [heard] it on the news." CP at 179.
At a preliminary hearing held in Benton County
Superior Court on November 21, 1995, Sagastegui indicated that he did
not want to be represented by legal counsel. Nevertheless, after
questioning Sagastegui about his level of education and his familiarity
with the legal system, the judge presiding at the hearing appointed
counsel to assist him.«2»
On November 22, 1995, Sagastegui was formally
charged with three counts of aggravated murder in the first degree. In
count I of the information, in which the State claimed that Sagastegui
caused the death of Kievan with premeditated intent, the alleged
aggravating circumstance was that there was more than one victim and the
murders were part of a common scheme or plan. In counts II and III, in
which it claimed that Sagastegui premeditatedly caused
the death of Melissa Sarbacher (count II) and Lisa Vera-Acevado (count
III), two aggravating circumstances were alleged: (1) that there was
more than one victim and the murders were part of a common scheme or
plan, dnd (2) that Sagastegui committed the murders of Sarbacher and
VeraAcevado to conceal commission of the murder of Kievan.
At his arraignment on December 1, 1995, Sagastegui
reiterated his desire to represent himself. Despite expressing concerns
about this request, the trial court indicated that Sagastegui could
represent himself and, consequently, it changed the status of
Sagastegui's defense counsel to "stand-by."«3» The prosecuting attorney
gave oral notice at this hearing that the statutory 30-day period within
which the State had to decide whether it would seek the death penalty in
the case had commenced. The trial court then informed Sagastegui and his
stand-by counsel that Sagastegui had the right to present any mitigating
evidence to the prosecutor that they believed would be relevant on the
question of whether the State should seek the death penalty.
At the outset of an omnibus hearing on December 15,
1995, the trial court indicated that it intended to engage in an
extensive discussion with Sagastegui about selfrepresentation. It said:
While you're considering that with your counsel,
the Court would only indicate to you at this time that these are these
are obviously big-time charges filed here. The prosecution is
considering the death penalty.
You have available to you a very experienced
criminal defense attorney who would provide you with the best representation possible so that, you know, you can
consider that among everything else while you're making your decision
RP (12/15/95) at 9. Following this admonition, the
hearing was recessed. It was resumed again on December 18, 1995, at
which time the trial court inquired into the issue of
selfrepresentation, and questioned Sagastegui extensively about his
knowledge of the law and his understanding of the difficulties and
pitfalls of self-representation. During this hearing, the judge
attempted to dissuade Sagastegui from proceeding without benefit of
I must advise you that in my opinion, you would be
far better defended by a trained lawyer than by yourself. I think it
unwise of you to represent yourself. You are not familiar with the law;
you are not familiar with court procedure; you are not familiaf with the
rules of evidence. I would strongly urge you not to try to represent
RP (12/18/95) at 6-7. The trial court then asked
Sagastegui, "[I]n light of the penalty that you might suffer if you are
found guilty and in light of all the difficulties in representing
yourself, is it still your desire to represent yourself and to give up
your right to be represented by counsel?" RP (12/18/95) at 7. Sagastegui
answered, "Yes." RP (12/18/95) at 7. At the conclusion of the exchange,
the trial court found that "the defendant has knowingly and voluntarily
waived his right to counsel," and concluded that Sagastegui could
represent himself RP (12/18/95) at 13.
The trial court also asked Sagastegui at the
hearing on December 18 if he understood that he could present mitigating
evidence to the prosecutor. Sagastegui responded, "Yeah; I understand
what he's asking for." RP (12/18/95) at 31. At a December 2, 1995
meeting between Sagastegui and the Benton County prosecuting attorney,
the prosecutor reminded Sagastegui that he could present evidence of
mitigating factors. According to the prosecutor, Sagastegui indicated
that he did not intend to present mitigating evidence or seek more time
within which to do SO.
On December 29, the State filed a notice of special
sentencing procedure, indicating that it intended to seek the death
penalty. At a hearing on that date, information was presented to the
trial court in the form of a written report and oral testimony which
revealed that Sagastegui had stopped taking his prescribed medication
(Vasotec for hypertension, Paxil for depression, and Pepcid for
gastritis) and that he had exhibited unusual behavior in the jail.«4»
Nevertheless, Sagastegui attempted to plead guilty to all three charges.
The trial judge refused to accept his pleas, saying,
In view of the serious nature of these charges
coupled with the fact that there has been some deserving [sic] reports
concerning Mr. Sagastegui's emotional condition while incarcerated here
at this facility, it is the Court's opinion it is necessary that we
determine whether Mr. Sagastegui is competent to actually enter a plea
of guilty to the three charges now pending.
RP (12/29/95) at 8. The trial court then ordered
that Sagastegui undergo a mental examination to assist it in determining
if Sagastegui was competent to stand trial, represent himself, and enter
a plea of guilty.«5» Sagastegui objected to such an examination, arguing
that the trial court had previously determined that he was mentally
competent. The trial court declined to rescind its order, informing
Sagastegui that the new information which had been provided to it raised
questions regarding his competency to enter pleas of guilty.«6»
Sagastegui then underwent a 15-day evaluation at Eastern State Hospital. Upon its completion, he was
returned to the trial court. Based on the report of that hospital's
so-called "sanity commission," the trial court found Sagastegui
competent to stand trial.«7» The commission's report was, however,
sealed at Sagastegui's request. At a confession hearing held on January
23, 1996 pursuant to CrR 3.5, the trial court ruled that Sagastegui's
confession to the Benton County Detectives was voluntary and that
evidence of it, including a tape recording and transcript of the
statement, was admissible evidence.
Trial on the charges against Sagastegui commenced
on January 30, 1996 before the Honorable Carolyn A. Brown.«8» At the
conclusion of jury selection, Sagastegui pleaded guilty to all three
charges of aggravated first degree murder. Prior to accepting the pleas,
the trial court went over Sagastegui's statements on plea of guilty with
him.«9» A transcript of Sagastegui's recorded statement to Detectives
Carlson and Carpenter was made part of the record as a factual basis for
the guilty plea. Sagastegui conceded at the plea hearing that he had
killed Melissa Sarbacher to conceal the commission of Kievan's murder,
that "the State could prove without a doubt" that he killed Lisa
VeraAcevado to conceal Kievan's murder, and that all three killings were
intentional, premeditated, and part of a common scheme or plan. RP
(2/2/96) at 741.
The penalty phase of the trial commenced on
February 5, 1996. During opening statements, Sagastegui told the jury
that he "deserve[d] the death penalty and [he was] not giving any mitigating circumstances." RP (2/5/96) at
780. He also admitted committing the murders and stated, "I liked it. I
enjoyed it." RP (2/5/96) at 779. The trial court then conducted a brief
conference in chambers to ensure, once again, that Sagastegui understood
he had the right to present mitigating evidence to the jury.
The State presented evidence to the jury which was
consistent with the facts recited above, and which connected Sagastegui
to the commission of the crimes to which he had pleaded guilty. The tape
recording of Sagastegai's incriminating statements to the Benton County
detectives was played to the jury and the jurors were furnished with a
transcript of the statement.«10» The State also presented evidence to
the jury of Sagastegui's prior convictions in courts of limited
jurisdiction for using force against another (1991 and 1995), disturbing
the peace (1995), driving with a suspended license (1995), and resisting
arrest (1995). Sagastegui declined to present any evidence on his own
behalf. During closing arguments, Sagastegui indicated to the jury once
again, "I did something wrong. I deserve the death penalty. . . . I'm
not sorry for what I did, and I don't know how to explain that, but I'm
not." RP (2/12/96) at 48.
The jury returned an affirmative answer to the
question, "[h]aving 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?" RP (2/12/96)
at 55. Consistent with the jury's verdict, the trial court sentenced
Sagastegui to death.
At a hearing on March 11, 1996, the trial court
considered Sagastegui's request to waive his rights to a general appeal
and to the assistance of counsel for any review of his sentence. Prior
to ruling on the request, the sentencing court required Sagastegui to
answer a seven-page written questionnaire to ensure that he fully
understood the consequences of his decision. It then questioned
Sagastegui about his answers to each written question. The sentencing
court also considered testimony from the members of the
sanity commission who had earlier examined Sagastegui at Eastern State
Hospital. The sentencing court thereafter entered findings of fact and
conclusions of law to the effect that Sagastegui was mentally competent
to validly waive his rights to appeal and to the assistance of counsel
for both a general appeal and the mandatory statutory review of his
sentence.«11» It found, additionally, that Sagastegui's decision to
waive his rights to appeal and to have the assistance of counsel was
made voluntarily, intelligently, and knowingly. RP (3/11/96) at 88-89.
[1, 2] Our review here is
governed by RCW 10.95.130 and principles laid down by this court in
State v. Dodd, 120 Wn.2d 1, 838 P.2d 86 (1992). Under Dodd we are
required to evaluate the trial court's conclusion that Sagastegai's
waiver of general appellate review was made knowingly, voluntarily, and
intelligently. In the event we conclude that the
waiver was valid, we must then consider the mandatory review questions
posed by RCW 10.95.130 for our determination.
I. WAIVER OF APPEAL
In Dodd, we were faced with a situation similar to
that which confronts us here. The defendant in that case, Westley Allan
Dodd, pleaded guilty to three counts of aggravated murder and declined
to appeal his convictions or the sentence of death that was imposed.
Although we held there that a competent defendant who is sentenced to
death may waive general appellate review, we went on to say that we are
required to (1) review the validity of the waiver, and (2) engage in the statutory review of the death
sentence, regardless of the defendant's wishes, if the waiver is
 For the purpose of reviewing the validity of
the waiver, we adopted the test approved by the United States Supreme
Court in Whitmore v. Arkansas, 495 U.S. 149, 165, 110 S. Ct. 1717, 109
L. Ed. 2d 135 (1990), which requires review of the trial court's
determination, made following a hearing, that the defendant made a
knowing, voluntary, and intelligent waiver of his right to appeal.
Specifically, we must decide if the trial court erred
in concluding that "the defendant had 'the capacity to understand the
choice between life and death and to knowingly and intelligently waive
any and all rights to appeal his sentence.' " Dodd 120 Wn.2d at
22 (quoting Whitmore, 495 U.S. at 165). This requires us to determine if
the record supports its holding that the defendant (1) had the capacity
(or competency) to understand his options, and (2) was provided with the
requisite information to enable him to make a knowing, voluntary, and
intelligent decision to waive a general appeal.
A. Sagastegui's Competency to Waive Appeal
Sagastegui, like Dodd, pleaded guilty to three
counts of aggravated first degree murder, and waived general appeal of
his death sentence. Before accepting Sagastegui's waiver, the Benton
County Superior Court conducted the required hearing to determine if
Sagastegui's waiver of his rights to appeal and to assistance of counsel for a statutory
sentence review was valid.
At this hearing, the trial court heard extensive
testimony from each member of the three person sanity commission who had
examined Sagastegui at Eastern State Hospital shortly before he entered
pleas of guilty to the charges against him. Each of these persons
indicated that Sagastegui was mentally competent and that he understood
the consequences of his decision. One member of the commission, Judith
Corem, testified that Sagastegui appeared to understand the concept of
death, and was able to articulate in a rational manner the difference
between the death penalty and life imprisonment without the possibility
of parole. Another commission member, Dr. Charles Mcilroy, indicated
that he had administered the Minnesota Multiphasic Personality Inventory
test to Sagastegui during the time Sagastegui was being evaluated at
Eastern State Hospital. Based upon the results of this and other
psychiatric tests administered to Sagastegui, as well as background
information and information obtained in clinical interviews of
Sagastegui by McIlroy and other members of the commission, he concluded
that Sagastegui "did not suffer from a major mental illness and also
that he was quite capable of understanding questions asked of him and
interacting and communicating about his case" and "that he was competent
to stand trial and remains competent at this time." RP (3/11/96) at
55-56, 58. The third commission member, Dr. Veerne Cressey, testified
that, "[i]n general, we felt he had a perfectly normal IQ and . . . we
felt that his judgment or his intelligence was right in the normal
range." RP (3/11/96) at 81.
The trial court, relying on these experts and its
own dialogue with Sagastegui in open court, concluded that Sagastegui
was competent to waive his rights to general appeal and to the
assistance of counsel. In this regard, it found:
[He] suffers from no major mental illness, disease
or defect [He] has the mental ability to adequately
understand his legal rights, including his right to appeal and his right
to the appointment of counsel on appeal and statutory sentence review .
[He] has the ability to make a reasoned choice
among the alternatives . . .
. . . [He] engaged in an interactive discussion
with the Court, providing deliberate, reasoned responses to the Court's
Findings of Fact and Conclusions of Law Re: Def.'s
Competency to Waive Counsel and Right to Direct Appeal at 23. The trial
court also found that Sagastegui was mentally competent at all times
during the proceedings and was able to fully appreciate his peril. We
are satisfied that these determinations are fully supported by the
record that is before us.
B. Understanding of the Consequences of the
Decision to Waive Appeal
Prior to the hearing on Sagastegui's request to
waive a general appeal, the trial court required Sagastegui to answer a
detailed questionnaire which was designed to shed light on his facility
with the English language, his understanding of legal proceedings, and
the consequences of his decision to waive his right to counsel and to a
general appeal of the death sentence. Before accepting Sagastegui's
waiver, the trial court read him each of the questions, required him to
answer each one orally, and generally engaged him in a dialogue to
ensure he understood everything.
Among the questions the trial judge asked
Sagastegui, were the following: Did he understand that if he wanted an
attorney to represent him, either on appeal or on the statutory sentence
review, the court would appoint one for him? Did he understand that
having the education, training and skills of an attorney on appeal would be extremely
beneficial and that if he acted as his own counsel he would have to
write his own briefs and present his own arguments? Did he understand
that he would not be granted access to the prison law library above that
ordinarily granted to other inmates? Did he understand that if he did
not have counsel that the court rules would apply to him the same as
they apply to an attorney? Did he understand that failure to properly
present a claim to the appellate court could bar that claim in any other
challenge to his conviction or sentence? Did he
understand that in that statutory sentence review, the Washington
Supreme Court reviews only the death sentence and the review is limited
to the four issues listed in RCW 10.65.130? Did he understand
that by waiving the right to a direct appeal, he gave up the opportunity
to raise any issues challenging his conviction as well as the
opportunity to raise any issues challenging his death sentence other
than those covered by the statutory sentence review? Did he understand
that if he waived his right to a direct appeal, he may be forever barred
from raising issues which he could have raised on direct appeal?
Sagastegui's reply to these questions and to all others in the
questionnaire indicated that he understood his position and the
consequences of his decision to waive his right to counsel and appeal.
At the conclusion of the colloquy between the trial court and
Sagastegui, Sagastegui reaffirmed his desire to waive his right to
We are satisfied that the record supports the trial
court's conclusion that Sagastegui made a "knowing, voluntary, and
intelligent" decision to waive his right to appeal. Indeed, the record
establishes that the trial court made significant efforts to discourage
Sagastegui's waiver of appeal and scrupulously ensure that Sagastegui be
provided with the information necessary to make an informed and
intelligent decision to waive appeal. In sum, we hold that the evidence
establishes that the trial court did not err in concluding that
Sagastegui was competent to waive his right to appeal and that his
decision to do so was made knowingly, voluntarily, and intelligently. His
waiver of general review was, therefore, valid.«13»
II. MANDATORY REVIEW ISSUES
Having concluded that Sagastegui's waiver of his
right to a general appeal was valid, we must next engage in a review of
the death sentence. This review, as we have indicated
above, is made mandatory by the provisions of RCW 10.95.130, which
exists to make certain that: there was sufficient evidence to justify
the jury's finding that there were not sufficient mitigating
circumstances to merit leniency; the sentence of death is not
disproportionate or excessive; the defendant was not mentally retarded;
and the sentence was not brought about by passion or prejudice.
Prior to discussing these issues, however, we
address an argument raised by amicus curiae. Amicus contends that the
absence of a record fully developed through the adversarial process
precludes this court from making a reasoned decision on the statutory
issues. Amicus claims, additionally, that the absence of such a record
did not permit it "to make principled arguments" on the statutory review
questions because there was no "thorough and competent investigation" of
the truth. Amicus Curiae Br. at 2. It urges us to vacate the death
sentence and appoint as special counsel two lawyers who are learned in
the law of capital punishment to conduct an investigation of evidence
relevant to the mandatory review issues.
These lawyers, amicus suggests,
should then present the prosecuting attorney with evidence of mitigating
circumstances or mental retardation, if any, in order that the
prosecutor might reconsider his death penalty position. According to
amicus, if the prosecuting attorney still wishes to seek the death
penalty in the face of evidence marshaled by the appointed attorneys,
and the trial court concludes Sagastegui is not mentally retarded, then a jury convened to consider
the penalty should be presented with the evidence of mitigating
circumstances by appointed counsel.
[4-6] This argument is nothing more than a request
that we overrule Dodd and hold that a competent defendant cannot elect
to defend himself at a capital sentencing proceeding and decide to not
present mitigating evidence to the jury.«14» Amicus claims we should do
so because if the defendant is simply acting out a death wish, the court
would be sanctioning suicide. We do not agree, and adhere to our holding
in Dodd that a competent defendant retains the right to make this
Although Dodd had counsel at trial, like Sagastegui he pleaded
guilty to the three counts of aggravated murder and then instructed his
attorney not to present any mitigating evidence to the jury during the
penalty phase. By affirming the jury's verdict, we necessarily held that
a competent defendant may elect not to present mitigating evidence.
Although we discussed the mitigating evidence that amici presented to
this court for our review of the statutory issues, we did not hold that
such evidence must be presented to the jury or to this court on review.
Dodd, 120 Wn.2d at 25.«15»
Although we do not know for certain why Sagastegui
did not present the jury with evidence of mitigating circumstances, one
can easily think of reasons why he may have chose not to. He may have
believed, for example, that there were no mitigating circumstances.
Perhaps he was guided by a tactical reason - that the introduction of
such evidence could lead to evidence that was not favorable to him.
is also possible that Sagastegui felt, as did the jury, that death is a just punishment for the crimes he
committed. Indeed, he told the jury that he was not presenting evidence
of mitigating circumstances because he "deserve[d] the death penalty."
RP (2/5/96) at 780. It may also be that his decision was motivated by
his stated belief that living in a cell for the rest of his life would
be worse punishment than the death penalty.
Regardless of his reasons,
in the final analysis Sagastegui was competent and he made an informed
decision to represent himself and not present mitigating evidence. It is
not the province of this court to override the constitutional right of a
fully informed and competent person to direct the course of his own
defense. That precise view was taken by the Ninth Circuit Court of
Appeals in Langford v. Day, 110 F.3d 1380 (9th Cir. 1996), a case in
which it reviewed the United States District Court's denial of a
petitioner's request for habeas corpus relief. The court held there that
a Montana state trial court was justified in respecting a defendant's
instructions at a capital case that no mitigating circumstances be
presented. The court said:
We conclude that , when the defendant and his
counsel ask the court to find no mitigation, the Eighth Amendment does
not require the sentencing court to search the record in order to
evaluate and discuss specifically less-thansubstantial unenumerated
mitigating factors neither offered nor pointed out as mitigating at the
time of sentencing.
Langford, 110 F3d at 1392. Consistent with that
reasoning, if the court is not required to search the record and discuss
unenumerated mitigating factors, it should not be faulted for not
appointing counsel, over the defendant's objection, to seek out
mitigating factors that are not in the record in order to call them to
the court's attention.«16»
Amicus contends that Sagastegui has manipulated the
record, thereby precluding a fair analysis of the mandatory sentence review questions. This argument assumes,
contrary to Dodd, that a competent defendant is required to present any
available mitigating evidence. Our ability to make a reasoned decision
on the statutory review questions does not depend upon the manner in
which Sagastegui or any other defendant-exercises his constitutional
right to control his defense. We conduct the statutory review based on
the record as a whole, including in this case Sagastegui's guilty pleas
and all of the evidence the State presented to the jury during the
The absence of mitigating evidence does not preclude
or inhibit review. It is, in essence, an admission by Sagastegui that
there are no mitigating circumstances that would merit leniency and we
should respect that admission. A competent defendant, in our view, may
elect to make such an admission, just as he may elect to plead guilty,
whether or not amicus or any other person would have made the same
A. Sufficiency of Evidence
Pursuant to RCW 10.95.130(2)(a)
we must answer the following question:
Whether there was sufficient evidence to justify
the affirmative finding to the question: Having in mind the crime of
which Sagastegui has been found guilty, are you convinced beyond a
reasonable doubt that there are not sufficient mitigating circumstances
to merit leniency?
CP at 144.
 The test to be applied in answering this
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found sufficient evidence to justify imposition of the death penalty
beyond a reasonable doubt. State v. Gentry, 125 Wn.2d
570, 654, 888 P.2d 1105 (1995); State v. Lord, 117 Wn.2d 829, 906, 822
P.2d 177 (1991).
As we have noted above, the State presented
extensive evidence during the sentencing phase of the trial
regarding the nature of the charged crimes, and Sagastegui's connection
to the offenses. It also presented evidence about Sagastegui's prior
convictions. Sagastegui, as we have also observed, declined to present
any evidence of mitigating factors to the jury.
Indeed, in his opening
statement to the jury, he admitted committing the murders and stated
that he liked it and "enjoyed it." RP (2/5/96) at 779. Given the brutal
and callous nature of the crimes to which Sagastegui freely admitted,
and the dearth of mitigating evidence, it can easily be said that there
is sufficient evidence in the record to support the jury's finding that
there are not sufficient mitigating circumstances to merit leniency.
[8, 9] Even broadening our review to consider
evidence that is in the record but not presented to the jury, as we did
in Dodd, we reach the same result. The only evidence that could even,
arguably, be considered mitigating is contained in a psychological
report presented to the trial court by the sanity commission.«17» In
light of Sagastegui's request that this report be sealed, we cannot
discuss specific details within it. It is sufficient to say that we have
reviewed the report and conclude that it does not weigh in favor of
extending leniency to Sagastegui. Furthermore, the mere presence of
mitigating factors does not require that the jury grant leniency, if the
jurors are convinced that all the circumstances of the crime outweigh
the mitigating factors. State v. Rice, 110 Wn.2d 577, 624, 757 P.2d 889
(1988). We are satisfied here that any mitigating factors in the record
are counterbalanced by the aggravating factors and none is so compelling
as to affect a rational juror's verdict. In short, as we said in Dodd,
"[e]ven if the jury had considered the alleged mitigating evidence, it
is obvious it would not have
changed its verdict." Dodd, 120 Wn.2d at 25.«18»
[10, 11] We are also required by
RCW 10.95.130(2)(b) to determine "[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and [Sagastegui]?" The purpose of
conducting this proportionality review is to ensure that the death
sentence is not imposed in a "wanton and freakish" manner.
State v. Pirtle, 127 Wn.2d 628, 688, 904 P.2d 245
(1995); State v. Brett, 126 Wn.2d 136, 211, 892 P.2d 29 (1995). In
conducting this review we are to make comparisons to "similar cases"
defined by RCW 10.95.130(2)(b) as "cases reported in the Washington
Reports or Washington Appellate Reports since January 1, 1965, in which
the judge or jury considered the imposition of capital punishment
regardless of whether it was imposed or executed, and cases in which
reports have been filed with the supreme court under RCW 10.95.120."
comparing this pool of cases, we are to look at four factors: (1) the
nature of the crime, (2) the aggravating circumstances, (3) the
defendant's criminal history, and (4) the defendant's personal history.
State v. Stenson, 132 Wn.2d 668, 759, 940 P.2d 1239 (1997), cert.
denied, 118 S. Ct. 1193 (1998); State v. Brown, 132 Wn.2d 529, 55556,
940 P.2d 546 (1997), cert. denied, 118 S. Ct. 1192 (1998).
 The purpose of this inquiry is not to ensure
that there is no variation on a case-by-case basis, nor is it to
guarantee that the death penalty is always imposed in superficially
similar circumstances. Lord, 117 Wn.2d at 910. Requiring such precise
uniformity, as we noted in Lord, would effectively eliminate the death
penalty. Instead the court is to look for "overlapping similarities" and
"family resemblances" between cases. Lord, 117 Wn.2d
This case most closely resembles
State v. Dodd, 120 Wn.2d 1, 838 P2d 86 (1992). Dodd, like Sagastegui,
murdered three victims in an "extraordinarily vicious and cold-blooded
manner." Dodd, 120 Wn.2d at 27. Two of Dodd's victims also
suffered for a significant length of time before expiring. In the
instant case we know from Sagastegui's statement to the Benton County
detectives that Sarbacher was screaming and there was "terror in [her]
eyes" after she was shot. CP at 168. It is reasonable to assume that the
child victim, Kievan, also suffered considerably during the process of
being beaten, raped, stabbed, and drowned. Other similarities between
this case and Dodd are the absence of significant mitigating factors and
the existence of more than one aggravating factor.
Sagastegui's case also closely
resembles State v. Campbell, 103 Wn.2d 1, 691 P2d 929 (1984) and State
v. Rice, 110 Wn.2d 577. Campbell, like Sagastegui, killed three
victims, one of whom was a child. Other similarities were that Campbell
presented no mitigating evidence to the jury, and there were multiple
aggravating factors. Rice also bears a resemblance to this case in that
Rice murdered a family of four, including two children, and more than
one aggravating factor was present.
Not surprisingly, differences exist between
Sagastegui's case and the other cases mentioned above. Dodd, for
example, preyed exclusively on children and the number of aggravating
factors present in that case and in the Campbell and Rice cases exceeded
the number here by one. That latter fact, while seemingly significant,
is not conclusive because we have consistently declined to look at these
cases as would a scientist looking for identity points. Lord, 117 Wn.2d
at 910. Death penalty cases are unique and cannot be decided like a
mathematical problem. While certainly the number of aggravating factors
and victims present in a case are points of comparison, they are not
Indeed, in State v. Benn, 120
Wn.2d 631, 845 P.2d 289 (1993), a case in which we affirmed the death
penalty, the number of aggravating factors and the number of victims was
less than here.
 The Campbell and Rice cases also differ in
that the defendants in each of the two cases had significant criminal
records, whereas Sagastegui's record was not substantial. Lack of a
significant criminal record does not, however, render a sentence
disproportionate. The defendant in State v. Rupe, 108
Wn.2d 734, 743 P.2d 210 (1987), had no criminal history, was sentenced
to death and this court affirmed the sentence.«19» Dodd closely
resembles Sagastegui in this regard as well in that Dodd's criminal
record, like Sagastegui's, was not extensive. In sum, we are
satisfied, after comparing Sagastegui's case to the cases mentioned
above in which the death sentences were found to be proportional, as
well as to those cases which have since been added to the pool of
potentially similar cases, that the sentence of death imposed here is
neither excessive nor disproportionate.
C. Passion or Prejudice
 The third inquiry required
under RCW 10.95.130 is whether the sentence of death was brought about
through passion or prejudice. RCW 10.95.130(2)(c). To answer this
question, we are to examine the record for evidence that the jury's
decision to impose the death penalty was affected by passion or
prejudice. See Benn, 120 Wn.2d at 693; Lord, 117 Wn.2d at 915. Our
review of the record discloses no evidence that the jury violated the
trial court's instruction to cc not be influenced by passion [or]
prejudice." CP at 147. Indeed, Sagastegui had not suggested here or at
trial that the jury was inflamed by passion or prejudice other than to
point out in closing argument that he "saw one or two of you [jurors]
smiling when it was time to see those pictures." RP (2/12/96) at 48. Even if the observation was
accurate, it does not establish that the verdict was affected by passion
Amicus calls our attention to
the report the trial court compiled pursuant to RCW 10.95.120, which
indicates that none of the jurors was of the same race as Sagastegui and
that all were of the same race as the three victims. These facts
without more do not cast doubt on the verdict. The fact remains that the
jury heard overwhelming evidence justifying a death sentence. In light
of Sagastegui's failure to present any evidence in mitigation and his
seeming endorsement of the death penalty for himself, the jury had
little choice but to reach the decision it did.
D. Mental Retardation Under RCW
The final inquiry under RCW
10.95.030 is whether the defendant is mentally retarded as that term is
defined in RCW 10.95.030(2)(a).«20» This inquiry was added in a 1993
amendment to RCW 10.95 that forbids execution of the mentally retarded.
LAWS OF 1993, ch. 479, §§ 1-4. The defendant has the burden of
proving he is retarded, and expert testimony is required to meet this
burden by a preponderance of the evidence. RCW 10.95.030(2).
There is absolutely no evidence in the record that
Sagastegui is mentally retarded. The only evidence in the record
directly bearing on the issue was the testimony of Dr. Cressey, a member
of the sanity commission, who had examined Sagastegui at Eastern State
Hospital. As noted above, he indicated at the hearing at which
Sagastegui's waiver of his right to appeal was considered that
Sagastegui had a normal intelligence quotient and that his judgment and
intelligence were also in the normal range. More to the point, he went on to say that he had no
concerns that Sagastegui may be mentally retarded.
If there was ever a case that justified the
imposition of the death penalty, this is it. Not only did Jeremy
Sagastegui freely and voluntarily plead guilty to three counts of
premeditated murder and concede the existence of two aggravating
circumstances, the evidence presented to the jury overwhelmingly
established that there are no circumstances that merit leniency. The
evidence showed, rather, that Sagastegui premeditatedly and viciously
assaulted, raped, and murdered a defenseless three-year-old boy who was
in his care, and then in a seemingly casual manner snuffed out the life
of the child's mother and the mother's friend simply because they might
identify him. Fortunately, this activity apparently caused Sagastegui to
feel fatigued or he might have continued to wreak his form of mayhem at
the Food Pavilion.
While one might question Sagastegui's decision to
decline counsel at trial and on review, and to waive his general appeal,
a defendant has the right to make such decisions if he is competent and
fully informed. The record fully supports the trial court's findings
that Sagastegui was competent and fully informed of his rights to
counsel and to appeal. That being the case, we must respect his decision.
One feels compelled to search the record for some
explanation for Sagastegui's barbaric conduct or for evidence that,
after having an opportunity to reflect on his conduct, Sagastegui is now
repentant. A reader of this record will search in vain for any
explanation. Sagastegui's own admission to the jury reveals that he is
totally without remorse. Indeed, his attitude has not changed since the
time of trial, the defendant having advised this court in an unsolicited
I got a thrill out of the killing. It gave me a
great sense of power. I liked it. I'd like to do it again. I told
this to the jury and now I am telling you.... I pled guilty because
I am guilty. Pay attention. Don't you get it, I killed, I loved it, I
want to do some more.
Def.'s Resp. to Supreme Court at 1.
Under RCW 10.95.140, we are
required to "affirm the sentence of death and remand the case to the
trial court for execution" if we answer the first of the questions posed
to us in that statute in the affirmative and the other three questions
in the negative. We answer them that way and, therefore, affirm
the judgment and sentence.
DURHAM, CA, and DOLLIVER, SMITH, Guy, JOHNSON,
MADSEN, TALMADGE, and SANDERS, JJ., concur.