State v. Murphy
In State v. Murphy, 86 Wn. App. 667, 937 P.2d 1173 (1997), the prosecution charged the defendant with first-degree and second-degree murder.
During voir dire, the judge attempted to allay potential juror fears and added an additional instruction to the usual instruction found in Washington Pattern Jury Instructions: Criminal (WPIC) 1.02 (2d ed. 1994).
I would advise you that this case does not involve a death penalty. You have nothing whatever to do, however, with any punishment that may be imposed in case of a violation of the law. The fact that punishment may follow conviction cannot be considered by you except insofar as it may tend to make you careful. Murphy, 86 Wn. App. at 669;see WPIC 1.02.
On appeal, Murphy argued that since the jury is not to consider punishment, an instruction to the jury regarding the death penalty was error.
Division One agreed. Acknowledging that other jurisdictions have allowed the jury to be informed that the death penalty is not involved in a case, see State ex rel. Schiff v. Madrid, 101 N.M. 153, 679 P.2d 821 (1984), the court nevertheless was persuaded that in Washington "punishment is irrelevant to the jury's task." Murphy, 86 Wn. App. at 670, 937 P.2d 1173. (citing State v. Todd, 78 Wn.2d 362, 474 P.2d 542 (1970)); State v. Forbes, 43 Wn. App. 793, 795, 719 P.2d 941 (1986).
Relying on language from Todd, which held that when a judge places "undue emphasis" on certain factors, including sentencing considerations, the jury will most likely take them into account, the court concluded that the judge's instructions were erroneous. Todd, 78 Wn.2d at 376.
Nevertheless the court upheld the verdict, finding the error harmless.
Because the jury had found the defendant guilty only of the lesser charge, the court reasoned that the jury was not likely influenced by the death penalty instruction in reaching its verdict. Murphy, 86 Wn. App. at 673.