Full opinion text
ORDER GRANTING WRIT OF HABEAS CORPUS ZILLY, District Judge. THIS MATTER comes before the Court on petitioner Mitchell Edward Rupe’s petition for writ of habeas corpus. By Order entered October 14, 1993 (docket no. 145), the Court granted the State’s motion to dismiss Claims 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 5.12 and 5.15. The Court deferred ruling on Claims 5.1, S.5.1 and 5.2 (ineffective assistance of counsel) and S.5.23, (unconstitutionality of hanging) pending an evidentiary hearing on those claims. The Court also deferred ruling on Claim 5.3 (trial court error in excluding polygraph evidence) pending further consideration. The respondents subsequently filed motions for summary judgment (docket nos. 112, 150, 168) on Rupe’s remaining claims. The Court held oral argument on these motions on April 1, 1994. An evidentiary hearing on Claims 5.1, S.5.1, 5.2 and S.5.23 was held during the week of July 11, 1994. By Order dated September 15, 1994, the Court granted the State’s motion to dismiss Claims 5.16 through 5.21 and S.5.21. This Order addresses the respondents’ motion for summary judgment as to Claims 5.1, S.5.1, and 5.2 (ineffective assistance of counsel), 5.3 (trial court error in excluding polygraph evidence), 5.13, 5.14, and S.5.14 (prosecutorial and trial court error in admitting gun collection evidence), and 5.22 and S.5.22 (death penalty statute violates due process and equal protection rights). The Court GRANTS respondents’ motion for summary judgment as to petitioner’s Claims 5.1, S.5.1, 5.2, 5.13, 5.14 and S.5.14, and 5.22 and S.5.22. The Court DENIES respondents’ motion for summary judgment as to petitioner’s Claim 5.3, and GRANTS petitioner’s petition for writ of habeas corpus as to that claim. By separate Order issued concurrently, the Court GRANTS petitioner’s petition for writ of habeas corpus as to Claim S.5.23 alleging that petitioner’s hanging in accordance with the Washington Field Instruction would constitute cruel and unusual punishment because of his particular circumstances, 863 F.Supp. 1307. SUMMARY OF RELIEF GRANTED Pursuant to. this Order and a separate Order issued this date relating to petitioner’s hanging claim (S.5.23), the Court grants petitioner Rupe’s petition for writ of habeas corpus on two claims. Claim 553. The Court concludes that Rupe’s Fifth, Eighth and Fourteenth Amendment rights were violated by the refusal of the trial court to admit the results of Monte Yovetich’s polygraph examination at the second penalty trial. Under well established federal law, a defendant in a capital case has a constitutional right to present all relevant mitigating evidence relating to the circumstances of the offense. Yovetich was a key witness in the case against Rupe. Yovetich testified that on the day of the murders, Rupe told Yovetich that he had robbed the bank, hid the money and gun in Yovetich’s garage, and asked Yovetich to dispose of the money and gun. Yovetich admitted that he tried to dispose of the gun and the money but denied that he had participated in the robbery and murders. In contrast, Rupe testified that he saw Yovetich at the bank on the morning the bank tellers were murdered. Rupe also denied his own involvement in the erim'es. Shortly after the murders, the Olympia Police Department administered a polygraph examination to Yovetich. The officer who administered the polygraph examination concluded that Yovetich’s answers to questions concerning his role in the robbery and murders were deceptive. Both polygraph expert witnesses who testified at the recent hearing also concluded that Yovetich’s answers showed deception. Yovetich’s failure of the polygraph examination constituted relevant mitigating evidence, which Petitioner was entitled to present to the jury during the penalty phase of his trial. The trial court’s failure to permit this testimony to be heard by the jury constituted a violation of Rupe’s federal constitutional rights for which habeas relief must be granted. Claim S.5.23. By separate Order, the Court also grants relief on Rupe’s hanging claim. The Court finds that there is a significant risk that Rupe’s hanging will result in decapitation because of his peculiar physical characteristics. A hanging that is likely to result in decapitation constitutes cruel and unusual punishment under the Eighth Amendment of the federal Constitution, and is contrary to “public perception of standards of decency.” Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Court dismisses the remainder of Rupe’s claims. ANALYSIS OF CLAIMS I. CLAIMS 5.1, S.5.1 and 5.2 — INEFFECTIVE ASSISTANCE OF COUNSEL A. Rupe’s Claims Clifford F. Cordes III was appointed to represent Mr. Rupe in September 1981 by the Thurston County Superior Court. Mr. Cordes served as Rupe’s counsel until October 18, 1988, when the Supreme Court of Washington approved the withdrawal of Mr. Cordes from representation of Rupe and the substitution of Allen & Hansen, P.S. 24 REC 11739-40. This withdrawal and substitution of counsel followed the .United States Supreme Court’s denial of Rupe’s petition for writ of certiorari in Rupe v. Washington, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988). Mr. Cordes represented Rupe during his first trial and appeal, and at his second pehalty trial and on direct appeal to the Washington Supreme Court following that proceeding. Rupe contends that he was denied effective assistance of counsel both at the second trial and on appeal. Petitioner claims Mr. Cordes’ performance at the second penalty trial was deficient in that he: (1) failed to object to a jury instruction requiring that jurors not permit sympathy to influence their verdict (claims 5.1.3— 5.1.4, 5.1.28 — 5.1.31); (2) opened the door to and then failed to refute the State’s cross-examination of petitioner regarding possible commutation of a sentence of life imprisonment without the possibility of parole (5.1.5 — 5.1.9); (3) failed to object to the prosecutor’s improper closing arguments (5.1.43 — 5.1.45); (4) failed to submit a jury instruction regarding the presumption of leniency (5.1.26 — 5.1.27); (5) failed to object to testimony of irrelevant gun ownership (5.1.32 — 5.1.42); (6) failed to submit jury instructions properly defining “relevant factors” (5.1.46— 5.1.49); (7) failed to consult with and obtain an expert witness to counter the police polygrapher’s testimony that Monte Yovetich’s polygraph was unreliable (S.5.1.1— S.5.1.15); (8) failed to object to or take other corrective action when the prosecutor failed to call petitioner’s fellow death row inmate, Patrick Jeffries, to testify regarding alleged confessions made to him by petitioner after the prosecutor had cross-examined petitioner regarding such statements (S.5.1.16 — S.5.1.19); and (9) failed to recognize that RCW 10.95.090 prohibited retrial of the penalty phase following invalidation of petitioner’s death sentence and objecting to the retrial on that basis (S.5.1.23 — S.5.1.24). Rupe contends that counsel’s appellate representation was also deficient in that counsel failed to identify on appeal the issue of the introduction of evidence concerning Rupe’s ownership of weapons unrelated to the crime. This is particularly egregious, Rupe argues, because it was the introduction of irrelevant gun evidence at his first penalty trial that served as the basis for the Washington Supreme Court’s reversal of his first death sentence. B. Constitutional Standards In order to prevail on a claim of ineffective assistance of counsel, the petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 678, 687, 104 S.Ct. 2052, 2059-60, 2064, 80 L.Ed.2d 674 (1984). First, Rupe must show that his attorney’s performance was deficient. Second, he must establish that he was prejudiced by counsel’s deficient performance. To meet the first prong of the test, the petitioner must show that counsel made errors so serious that his performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Judicial scrutiny of counsel’s performance, however, “must be highly deferential.” Id., 466 U.S. at 689, 104 S.Ct. at 206, 80 L.Ed.2d at 694. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time____ [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. (citation omitted). To meet the prejudice prong of the Strickland test, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. When a defendant challenges a death sentence, “the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. In making this determination, the reviewing court “must consider the totality of the evidence before the judge or jury.” Id. C. Adequacy of Performance at Second Penalty Trial Although petitioner has identified numerous instances of deficient performance by his trial counsel at the second penalty phase, petitioner has focused attention on two particular aspects of counsel’s representation: (1) counsel’s failure to object to the introduction of irrelevant gun evidence, and (2) failure to consult with and obtain an expert witness to counter the polygraph examiner’s testimony that Monte Yovetich’s polygraph was unreliable. Rupe’s other ineffective assistance claims involve counsel’s acts and omissions respecting jury instructions, prosecutorial misconduct and evidentiary issues. 1. Gun Evidence At petitioner’s first penalty trial the trial court allowed the State to introduce evidence concerning Rupe’s gun collection, including the admission of several weapons: (1) a CAR 15 semiautomatic rifle, (2) a 12-gauge shotgun with one shortened barrel, (3) a .22 caliber rifle, and (4) a pistol with interchangeable barrels. See State v. Rupe, 101 Wash.2d 664, 703, 683 P.2d 571 (1984) (“Rupe I ”). In addition to the weapons themselves, the State presented the testimony of several firearms experts who testified that the weapons in Rupe’s collection, though legal, were not suitable for hunting or sport. One expert testified that the CAR 15 was “designed as an anti-personnel rifle.” Id. at 703, 683 P.2d 571. The prosecutor used this evidence in his closing argument to emphasize that Rupe was an extremely dangerous person. Rupe challenged the admission of this evidence in his first state appeal, arguing that the evidence was irrelevant, prejudicial and violative of his due process rights. The Supreme Court of Washington agreed with all three contentions and reversed Rupe’s death sentence on this basis. The supreme court held that Rupe was entitled under the Washington Constitution to possess weapons, and the State was prohibited from drawing adverse inferences from Rupe’s exercise of that constitutional right. Rupe I, 101 Wash.2d at 706-07, 683 P.2d 571. Applying Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the supreme court concluded that the State’s impermissible use of this evidence, specifically its attempt to draw adverse inferences from the exercise of a constitutional right, required reversal of Rupe’s death sentence. The supreme court also held that the gun evidence was both irrelevant and highly prejudicial. The gun evidence was irrelevant because it had no connection to the crime. The court described the prejudicial nature of the evidence as follows: Personal reactions to the ownership of guns vary greatly. Many individuals view guns with great abhorrence and fear. Still others may consider certain weapons as acceptable but others as “dangerous.” A third type may react solely to the fact that someone who has committed a crime has such weapons. Any or all of these individuals might believe that defendant was a dangerous individual and therefore deserved to die, just because he owned guns. This was, in fact, the crux of the prosecutor’s argument to the jury for defendant’s death. Rupe I, 101 Wash.2d at 708, 683 P.2d 571. “Because the challenged evidence was violative of defendant’s due process rights, irrelevant and thus inadmissible,” the supreme court vacated Rupe’s death sentence and remanded for a new sentencing proceeding. At Rupe’s second penalty trial, the State called on F.B.I. Special Agent Peter Shepp to testify about his investigation of petitioner. After testifying about petitioner’s cooperation with law enforcement officials and his attempts to give them information about the robberyj Agent Shepp testified about weapons owned by petitioner: Q: Did you ask Mr. Rupe if he owned any firearms? A: I did. Q: What did he tell you? A: He told me he had a .357 caliber re-' volver. However, he said at that time he had loaned it to a Monte Yovetich, who resided on Holman Street in Shelton, Washington, but was now somewhere in Okanagan [sic], and that is why he loaned the weapon to him, because he wanted to take it hunting. He also had a 12-guage [sic] Remmington shotgun, a Colt semi-automatic .22 caliber or carbine, a savage over and under 30-30 caliber 20 guage [sic], which he said was in a gun shop in Bremerton, Washington, Puget Sound Firearms, and a .22 caliber lever action Ithaca rifle. A: Did you ask Mr. Rupe about his checkbook at all? 18 REC 8848. The portion of Agent Shepp’s testimony concerning the murder weapon, the .357 caliber revolver, was proper, but the remainder of his testimony concerning Rupe’s gun ownership improperly introduced inadmissible evidence. Rupe’s trial counsel failed to object to the admission of the irrelevant gun testimony, nor did he move for a mistrial or request a curative instruction. At the evidentiary hearing, counsel testified that he did not recall Agent Shepp’s testimony concerning the gun collection, nor could he recall a reason for not objecting to it. He also testified, however, that he was alert throughout the proceedings, was sensitized to the gun issue as a result of the supreme court decision, and would probably have objected to the testimony at trial had he believed it was prejudicial. There is no evidence indicating that counsel’s failure to take any action with respect to the irrelevant gun evidence was a tactical decision. In an affidavit dated August 25, 1992, Rup'e’s trial counsel stated, “I cannot think of any strategic reason for not objecting to such evidence or for failing to bring a motion for a mistrial based on the introduction of the gun collection evidence.” 28 REC 13402. In contrast to Rupe’s counsel, the prosecutor, Gary Tabor, had no trouble recalling Agent Shepp’s testimony concerning the gun testimony. Mr. Tabor testified that he did not expect Agent Shepp to testify as to Rupe’s lawfully-owned weapons, and was “surprised” that Shepp mentioned them during his testimony. Tabor also recalls feeling uncomfortable at the time Shepp testified as to those weapons. Upon hearing the testimony, Tabor “shifted [his] weight” and hoped it would resolve itself quickly. Plaintiffs expert, Robert Leen, testified that defense counsel’s failure to take any action with respect to the introduction of the gun testimony was below reasonable professional standards for attorneys handling capital cases. He described counsel’s failure to act as “inexplicable,” particularly in view of “the message of the supreme court that such evidence was improper, highly prejudicial, and grounds for reversal.” Leen Affid. at 9. Leen also testified that had Rupe’s trial counsel moved for a mistrial based on the inadmissible gun evidence, there was a substantial likelihood that the judge would have granted the motion. Id. The Court concludes that trial counsel’s failure to take any action with respect to the admission of the irrelevant gun evidence deprived the petitioner of effective assistance of counsel. The admission of evidence concerning Rupe’s gun collection in the first penalty trial was the basis for the Washington Supreme Court’s reversal of petitioner’s original death sentence. Although the evidence of gun ownership in the first trial was more expansive than that in the second trial, and the prosecutor’s misuse of the evidence far more egregious, there was no question following Rupe I that the admission of any evidence concerning Rupe’s gun collection would be improper. Counsel for Rupe had several options available to minimize the damage from Agent Shepp’s testimony. He could have moved to strike the irrelevant gun testimony and offered a curative instruction. Alternatively, he could have moved for a mistrial. Instead, he did nothing. Given the supreme court’s clear directive concerning this type of evidence and the seriousness of the proceedings at hand, it was unreasonable for Rupe’s counsel not to take any action concerning the irrelevant gun testimony. By finding that trial counsel’s performance was defective in this regard, the Court is not implying that counsel was generally unskilled or lacked commitment to Mr. Rupe’s cause. To the contrary, the record establishes that Mr. Cordes was a devoted and zealous advocate who worked very hard at the penalty trial to convince the jurors that Rupe’s life should be spared. Counsel presented an extraordinary number of witnesses who testified as to Rupe’s good character, nine-year military record and various accomplishments. Mr. Cordes obviously spent many hours preparing for trial, and for the most part shouldered this burden alone. Even devoted and skillful advocates, however, commit errors, and where those errors effectively deprive the defendant of his right to counsel, the court must find counsel’s representation to be ineffective. 2. Yovetieh Polygraph Monte Yovetieh was the State’s key witness in the case against Rupe and testified that he had no involvement in the bank robbery or murders. Yovetieh testified that on the day of the murders, Rupe told Yovetieh that he had robbed the bank, hid the money and gun in Yovetich’s garage, and asked Yovetieh to “go east of the mountains for a few days, spend some of the money, and get rid of the gun.” 19 REC 9301-02. Yovetieh admitted that he tried to dispose of the gun and the money. Although Yovetieh denied taking any of the money, more than $2000 of the stolen currency was never recovered. The police did recover the gun, however. Yovetieh told the- police that he threw the gun off the Hartstene Island Bridge, and the gun was subsequently recovered from waters near that bridge. For his part in the crime, Yovetieh pled guilty to rendering criminal assistance and possession of stolen property. 19 REC 9318. Yovetieh served eight months in jail. 19 REC 9410. At Rupe’s original guilt and penalty trials, defense counsel moved to admit the results of a polygraph examination of Monte Yovetich for purposes of cross-examination. That polygraph examination conclusively showed deception on the part of Yovetieh and cast doubt on the veracity of Yovetieh’s testimony and the level of his involvement in the robbery and murders. a. Circumstances of Polygraph Monte Yovetieh was arrested at approximately 12:01 a.m. on September 23, 1981, in connection with the investigation of the robbery and two murders at the Tumwater State Bank. The Olympia Police Department conducted the polygraph examination of Yovetieh on September 24, 1981, at 5:45 p.m. Yovetieh had been interrogated by Olympia police detectives twice prior to the commencement of the polygraph examination, the latter interrogation commencing at 11:40 a.m. on September 23, 1994, the day before the polygraph examination. Officer Maynard Midthun was the polygraph examiner. The polygraph examination of Mr. Yovetich was a control-question exam commonly known as a modified general questions test (MGQT). During an MGQT exam, the examiner asks a set of nine to twelve questions. Three or four of those questions concern the issues under investigation. The entire set of nine to twelve questions, including the relevant questions, is asked at least three times. During the questioning the polygraph instrument continuously measures and permanently records the subject’s physiological reactions, which include changes in skin conductance (palmar sweating), blood pressure and respiratory activity. After the test is completed, the examiner numerically evaluates the polygraph charts to determine whether the pattern of physiological reactions indicates truthfulness or deception. The examiner scores each chart and then combines the scores on the three charts to obtain a total numerical score. A total numerical score of - 3 or lower for an individual relevant question conclusively indicates deception as to that question. A total numerical score of + 3 or higher for a question conclusively indicates truthfulness as to that question. A total score of less than three, either plus or minus, is considered inconclusive. Polygraph examiners evaluate their examinations to determine whether they are “conclusive” and “valid.” A conclusive test is a test that the polygraph examiner can conclude, based on scoring, indicates truthfulness or deception. A valid test is one in which the results of the test are accurate. A test is valid if the examiner is confident that the reactions on the polygraph chart were caused by the subject’s deception rather than by other factors, such as fatigue, alcohol or drug use, and illness, which may produce a false reaction. Thus, a polygraph test may be conclusive but invalid. During Yovetich’s polygraph exam, Officer Midthun asked, the following relevant questions: (1) Did you participate in the robbery of that bank last Thursday? (2) Did you lie about throwing the pistol off the Hartstene Island Bridge? (3) Do you know where the rest of that stolen money is now? (4) Did you lie about being in Mason County when that bank was robbed? Yovetich answered “no” to each of these questions. Based on his numerical scoring of the examination, Officer Midthun determined that the exam conclusively indicated deception as to each of the four questions. Pl.Ex. 9. b. Exclusion of Polygraph At Rupe’s first trial, Mr. Cordes moved to admit the results of Yovetich’s polygraph examination for cross-examination purposes. The trial court, after hearing testimony from Yovetich and Officer Midthun, refused admission of the Yovetich polygraph results, concluding that the polygraph results were unreliable. The trial court’s exclusion of the evidence was based in significant part on Officer Midthun’s testimony that the exam’s validity was in doubt. Officer Midthun testified that Mr. Yovetich’s nervousness, lack of sleep, hostility towards the Olympia police, and poor rapport between Officer Midthun and his subject rendered the polygraph examination of questionable validity. Rupe challenged the exclusion of the polygraph evidence on appeal. In Rupe I, the Washington Supreme Court upheld the exclusion of the evidence at the guilt phase, finding that it “simply does not reach the minimal threshold of reliability necessary to its admission in a criminal proceeding.” Rupe I, 101 Wash.2d at 690, 683 P.2d 571. The court also noted that the results of the polygraph were undercut by subsequent events. For example, the polygraph charts indicated that Yovetich was lying when he asked if he threw the gun off the Hartstene Island Bridge, yet the gun was subsequently located precisely where Yovetich stated he had thrown it. With respect to the exclusion of the evidence at the penalty phase, the supreme court, citing State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079 (1984), concluded: Although we recognize that death sentencing proceedings involve interests that require more relaxed evidentiary rules when considering evidence in defendant’s favor, we cannot go so far as to permit clearly unreliable evidence to be introduced. We hold, therefore, that polygraph examinations will not be admitted in those limited eases where their, trustworthiness is seriously in doubt. Rupe I, 101 Wash.2d at 691, 683 P.2d 571. Bartholomew was decided after Rupe’s first penalty trial but before his retrial. Thus, the trial court in the first penalty trial did not evaluate the admissibility of the evidence under the Bartholomew standard. On appeal, the supreme court, referring to Bartholomew, upheld the exclusion of the polygraph results, finding that the Yovetich polygraph was “clearly unreliable.” Rupe I, 101 Wash.2d at 691, 683 P.2d 571. Because the supreme court had upheld the exclusion of the polygraph under Bartholomew, the trial court refused to admit it during the second sentencing trial. 14 REC 6497. Although Mr. Cordes sought to admit other evidence concerning the possibility that Yovetich committed the crime, he did not move specifically to admit the polygraph results at the second penalty trial. In response to an inquiry by the trial court as to the admissibility of the Yovetich polygraph testimony, Mr. Cordes stated: ... I could see under circumstances where it would be admissible if we had, for example, a new hearing on the reliability of the polygraph in this particular case, and went beyond what we did in the first hearing there, and the Court then were able to determine, well, I believe, in this case, it was reliable because of these new facts. As it stands now, I think we would be precluded simply from the Rupe decision. 14 REC 6479. c. Counsel’s Performance Rupe alleges that Mr. Cordes’ failure to consult with a polygraph expert regarding the reliability of the Yovetich examination, and his failure to reopen the issue of reliability of the Yovetich polygraph results at the second penalty trial, fell below reasonable professional standards. Rupe offers the testimony of Paul Minor, president of American International Corporation and an expert in polygraph examinations, to show that highly qualified experts were available to challenge Midthun’s conclusions concerning the validity of the Yovetich polygraph results. Mr. Minor testified that the circumstances of Monte Yovetieh’s polygraph were typical of polygraph examinations of persons in cüstodial settings, and that the factors cited by Midthun as easting doubt on the validity of the test’s results would not in fact “invalidate the examination, render the charts inconclusive, or effect [sic] the reliability of the examination results.” Minor Affid. at 6. According to Minor, the polygraph testing and results of the examination administered to Yovetich fell within the normal range of possible error for polygraph examinations generally, which is 2 to 3%. Based on his independent review of the Yovetich polygraph charts, Minor concluded that the test conclusively showed deception as to the first three relevant questions, but the results of the last relevant question were inconclusive. Minor concluded, “[t]he polygraph testing of Monte Yovetich produced conclusive results, the results •showed that Mr. Yovetich was not truthful in answering ‘no’ to each relevant question, the testing was valid, [and] the results were reliable.” Minor Affid. at 4. Mr. Minor was a highly qualified and crediblé witness, and the Court accords his testimony' great weight. The State’s expert on polygraph examinations, Dr. David Raskin, Professor of Psychology at the University of Utah, also concluded that the Yovetich polygraph test conclusively showed deception as to the first three relevant questions but the results of the fourth question were inconclusive. Dr. Raskin disagreed, however, with Mr. Minor’s conclusion that the test results were valid. Dr. Raskin testified that “[a] number of factors relating to the physical and mental condition of [Yovetich] at the time of the test,” such as recent alcohol and drug use, lack of sleep, prior interrogations and nervousness, “contributed to a substantially increased risk of error in the polygraph test.” Raskin Affid. at 16. Raskin also cited technical deficiencies in the examination. In Dr. Raskin’s opinion, the test questions were asked too close in time and some of the control and relevant questions were poorly worded. Moreover, Yovetich displayed ectopic (irregular) cardiac activity on the polygraph charts, which “made it impossible to evaluate his psychological reactions to some of the questions.” Id. at 12. It is not this Court’s task to determine whether the Yovetich polygraph results were valid. Rather, the Court must determine whether, in light of all the circumstances, trial counsel’s failure to consult an expert and present expert testimony on the reliability of the Yovetich polygraph results at the second penalty trial was outside the wide range of professionally competent assistance. The Court concludes that it was not. Petitioner has established by credible expert testimony , that reasonable, qualified polygraph experts could differ on the validity of the Yovetich polygraph results. Thus, it is clear that-trial counsel could have obtained an expert to testify that the Yovetich test results were rehable. The critical issue, however, is whether it was professionally unreasonable for Mr. Cordes not to obtain such an expert. It was certainly reasonable for Mr. Cordes not to consult with an expert during the first trial. At the first trial, Cordes made an offer of proof in support of his motion to admit the polygraph results, which included the testimony of Monte Yovetich and Officer Midthun. As Cordes expected, Midthun testified that he administered the test, the test was conclusive and the test showed deception as to each of the relevant questions. Upon questioning of the prosecutor, however, Midthun testified that certain factors may have affected the validity of the test. Midthun’s repudiation of the validity of Yovetich’s polygraph examination took Cordes by surprise. As he stated in his affidavit, “[n]othing in the discovery I had received concerning the polygraph suggested that Midthun had any doubts regarding the validity of the test of Yovetich.” 28 REC 13410. Cordes further stated that the State had not informed Cordes that Yovetich had failed a polygraph exam until immediately before trial. Given the time constraints under which Cordes was working, and the fact that Cordes reasonably expected Midthun to testify that his examination of Yovetich was conclusive and valid, it was reasonable for Cordes not to consult with an expert prior to making his offer of proof. It was also within the wide range of professionally competent representation for Mr. Cordes not to consult with an expert and reopen the issue of the polygraph’s reliability at the second penalty trial. At his first trial the trial judge held a full and fair hearing on the issue of the polygraph’s admissibility, the result of which was the exclusion of the evidence from the guilt and penalty phases. That ruling was affirmed on appeal by the Washington Supreme Court, and the trial judge at the second penalty trial indicated that he would follow that holding. In the wake of an unfavorable supreme court decision addressing the precise issue, it was reasonable for Mr. Cordes not to seek to reopen the issue of admissibility of the polygraph. Mr. Cordes had limited resources and time to prepare for the second penalty trial. He had to weigh the relative benefits and risks of devoting substantial energy and resources to seeking the admission of evidence that the Washington Supreme Court had described as “clearly unreliable” and previously ruled was properly excluded. It was within the wide range of professional competence for Mr. Cordes to assume the trial judge would not admit evidence relating to the polygraph examination in light of the strong language in Rupe I on this very issue. In conclusion, the Court finds that, in light of all the circumstances, trial counsel’s failure to consult with an expert and seek to reopen the issue of reliability of the Yovetich polygraph test was within the wide range of professionally competent assistance. 3. Other Alleged Errors The Court concludes that the other acts or omissions of Mr. Cordes cited by petitioner were the result of reasonable professional judgment and fell within the wide range of reasonably competent assistance. a. Jury Instructions Mr. Cordes’s failure to object to a “no sympathy” jury instruction was professionally reasonable under the circumstances. Rupe’s counsel was concerned about the jurors’ potential sympathy for the victims, who had been brutally slain, and sought to minimize the risk that the jurors would be influenced by such sympathy. It was also within the wide range of professional competence for counsel not to propose a “presumption of leniency” instruction. Counsel reasonably believed that the presumption of leniency was implicit in the trial court’s other instructions, particularly Instruction Nos. 7 and 8. Petitioner’s Ex. 3. Moreover, petitioner’s own expert, Robert Leen, testified that counsel’s failure to offer a “presumption of leniency” instruction did not fall below a reasonable standard of practice. Leen Affid. at 23-24. The Court also finds that counsel’s failure to submit jury instructions limiting the definition of “relevant factors” was professionally reasonable. Petitioner has made no showing that failure to submit such instructions fell below reasonable standards of competence. b. Opening the Door to Cross-Examination of Petitioner Concerning Possible Commutation During his direct examination of Mr. Rupe, Rupe’s counsel asked: “Mitch, at best, you will be looking at Walla Walla for the rest of your life.” Rupe responded, “Life without parole.” On cross-examination the prosecutor asked Rupe several questions concerning the possibility that his sentence would be commuted. The trial judge ruled that defense counsel had opened the door to cross-examination regarding commutation by his question that “at best” Rupe would be at Walla Walla for the rest of his life. The Court concludes that trial counsel’s questioning of Mr. Rupe, while in hindsight unwise, did not fall below professional standards of competence. By questioning Mr. Rupe about the statutory alternative to the death sentence, life without parole, counsel was reasonably trying to show the jury that a life sentence without the possibility of parole constituted serious punishment. Petitioner’s expert, Robert Leen, conceded that this is an acceptable strategy for defense attorneys generally. Mr. Leen takes issue, however, with the unartful wording of Mr. Cordes’ question, maintaining that Cordes took an inappropriate risk by phrasing the question as he did. It is not clear, however, that such a risk was evident at the time Mr. Cordes asked the question. Mr. Leen conceded that, although the trial judge ultimately ruled in favor of allowing cross-examination concerning commutation, “it [was] arguable whether Mr. Cordes’ question should have been held to ‘open the door’ to commutation questions, particularly in light of Mr. Rupe’s accurate response.” Leen Affid. at 20. Similarly, at the evidentiary hearing, Mr. Leen admitted that Mr. Cordes’ question to Mr. Rupe did not “necessarily” open the door to cross-examination concerning commutation. Rather, the prosecutor was skillful in arguing that such a door had been opened. Viewing Mr. Cordes’ conduct from his perspective at the time he asked the question, the Court concludes that counsel’s actions fell within the wide range of reasonable professional assistance. c. Failure to Object to Prosecutor’s Closing Argument Rupe contends that the prosecutor seriously misstated the law to the jury during closing argument, and Rupe’s trial counsel rendered ineffective assistance by failing to object to the prosecutor’s misstatements. Rupe argues that the prosecutor’s misstatements of law, which were left uncorrected, had the effect of shifting the burden of proof to petitioner. Again, the Court concludes that, viewing counsel’s conduct from counsel’s perspective at the time he faded to object, counsel’s conduct fell within the wide range of reasonable professional assistance. Mr. Cordes testified that he usually does not object during the prosecutor’s closing argument unless the prosecutor’s breach is serious. Petitioner’s expert, Mr. Leen, essentially agreed that many defense counsel refrain from making objections during closing arguments unless necessary to do so. Mr. Cordes further testified that he did not object to the prosecutor’s arguments in Mr. Rupe’s case because he did not believe that the arguments had the effect of shifting the burden of proof to his client. In the illuminating glow of hindsight, the prosecutor’s statements can be made to appear menacing. At the time of trial, however, it was far from clear that the prosecutor was so distorting the law that the jury would not properly apply the law as set forth in the instructions. Under the circumstances, there is no basis for finding that counsel’s performance was deficient. d. Failure to Take Corrective Action in Response to Improper Cross-Examination Concerning Statements to Patrick Jeffries At his second penalty trial Mr. Rupe testified that he did not commit the robbery or murders. During cross-examination, the prosecutor asked Mr. Rupe whether he had made certain incriminating statements to a fellow death row inmate, Patrick Jeffries. Rupe denied making any such statements. Although the prosecutor had subpoenaed Jeffries, the State never called him as a witness. Rupe’s trial counsel did not object to the cross-examination of his client concerning the Jeffries statements. Mr. Cordes also did not move for a mistrial or to strike the testimony once it became apparent that the State did not intend to call Jeffries as a witness to prove the statements. Finally, Cordes did not try to have Jeffries called as a witness. The Court concludes that counsel’s failure to take action with respect to the Jeffries testimony was within the wide range of reasonable professional assistance. Cordes failed to object to the cross-examination at the time it occurred because he reasonably believed that the State intended to call Jeffries as a witness. Cordes testified that he failed to take curative action once he realized that the State did not intend to call Jeffries because he did not believe the Jeffries testimony was damaging to Rupe. Cordes also testified that he did not call Jeffries as a witness because he did not consider him to be a credible witness. Thus, Rupe’s claim as it relates to the Jeffries matter has no merit. The Court notes that even if counsel’s failure to take curative action with respect to the Jeffries statements fell below a reasonable standard of professional competence, such action did not result in prejudice to Mr. Rupe. Viewing the record as a whole, there is no reasonable probability that, absent counsel’s failure to take curative action in response to the Jeffries statements, the outcome of the second penalty trial would have been different. e. Failure to Recognize that RCW 10.95.090 Prohibited Retrial Petitioner has made no showing that trial counsel’s failure to argue that RCW 10.95.090 prohibited retrial of the penalty phase constituted ineffective assistance of counsel. Petitioner’s own expert, Mr. Leen, testified that trial counsel’s failure to make such an argument did not fall below reasonable standards of practice. Leen Affid. at 18. D. Prejudice Resulting from Counsel’s Error at Second Penalty Trial The Court has concluded that trial counsel’s failure to take any action with respect to the admission of irrelevant gun testimony fell below reasonable standards of competence. In order to grant habeas corpus relief on the basis of ineffective assistance of counsel, however, the Court must determine that “there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. The Court, having reviewed the entire record of the second penalty trial, concludes that there is not a reasonable probability that, absent this error, the jury would have concluded that there were sufficient mitigating circumstances to merit leniency. The objectionable firearms testimony took up a few moments, at most, of a ten-day proceeding. The jury in petitioner’s second penalty-phase trial had before it evidence that supplied a motive for the crime, several confessions by Mr. Rupe, and evidence of Rupe’s ownership of the murder weapon, which was properly admitted. Even without Agent Shepp’s testimony that Mr. Rupe possessed several firearms, the record is full of references to Rupe’s fascination with the military and survival techniques, his possession and use of guns for target practice, and his possession of a concealed weapon’s permit. Such references were supplied by petitioner’s attorney, mitigation witnesses, and petitioner himself, in addition to the State. See, e.g., 19 REC 1933, 9135-36, 9677, 9714-15, 9891-92; 20 REC 9899-9900, 10045, 10054. Under all the circumstances, there is no reasonable probability that Agent Shepp’s limited testimony concerning Rupe’s gun ownership so shifted the balance of aggravating and mitigating factors in the mind of any juror that the verdict would have be different without it. The Court would reach this same conclusion even if it had found that the other errors cited by petitioner constituted ineffective assistance of counsel. Viewing the record as a whole, there is no basis for finding prejudice. E. Ineffective Assistance of Counsel on Appeal Claims of ineffective assistance of appellate counsel are also reviewed under the Strickland standard. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986). The petitioner must show that appellate counsel’s performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional, errors, the petitioner would have prevailed on appeal. Miller, 882 F.2d at 1434. Mr. Cordes did not raise as an issue on appeal the introduction of evidence of Mr. Rupe’s ownership of guns unrelated to the crime. Counsel testified that he had no recollection of specifically reviewing Agent Shepp’s testimony concerning the guns in preparation for the appeal, or of consciously rejecting the issue as unappealable. Thus, the failure to raise the gun issue on appeal was not a strategic decision. Because the Washington Supreme Court had previously reversed Mr. Rupe’s death sentence based on the admission of irrelevant gun evidence, counsel’s failure to raise the gun issue on appeal fell below an objective standard of reasonableness for defense attorneys in capital cases. Petitioner’s expert on capital appeals, James Lobsenz, testified that “[a] claim that has been successful in winning a reversal in the very same case is the strongest possible claim ... in an appeal of a criminal conviction or sentence.” Lobsenz Affid. at 4. He added that “no issue identified and raised by Mr. Cordes had as much merit as the admission of gun ownership evidence already identified as inadmissible and prejudicial by the [Washington] Supreme Court.” Id. The Court agrees with Mr. Lobsenz’s conclusion that under the circumstances no reasonable defense attorney in a capital case would fail to raise this issue on appeal. The Court also concludes, however, that Rupe was not prejudiced by his counsel’s failure to raise the gun issue on appeal because there is no reasonable probability that Rupe would have prevailed on this issue had it been raised. In Rupe I, the Washington Supreme Court reversed Rupe’s death sentence because the jury was permitted to draw adverse inferences from Rupe’s exercise of a constitutional right. Rupe I, 101 Wash.2d at 706, 683 P.2d 571. The supreme court explained: Here, in arguing that defendant’s exercise of that constitutional right meant that he deserved the death penalty, the State attempted to draw adverse inferences from defendant’s mere possession of these weapons. Our [state] constitution, and the due process analysis contained in Zant, prohibits use of this evidence. Id. at 707, 683 P.2d 571. The Washington Supreme Court’s ruling was also based on the defendant’s right to bear arms under the Washington Constitution, art. 1, § 24. The supreme court reasoned that Rupe was “entitled under our [Washington] constitution to possess weapons, without incurring the risk that the State would subsequently use the mere fact of possession against him in a criminal trial unrelated to their use.” Id. at 707, 683 P.2d 571. In granting Rupe relief, the court rejected the State’s argument that Rupe suffered no prejudice from the admission of the gun evidence. The court concluded that certain individuals “might believe that defendant was a dangerous individual and therefore deserved to die, just because he owned guns.” Id. at 708, 683 P.2d 571. Despite the supreme court’s strong language in Rupe I concerning the prejudicial impact of irrelevant gun evidence, there is no reasonable likelihood that the supreme court would have found that Rupe’s due process rights were violated or that he suffered prejudice from the admission of the limited gun testimony in the second penalty trial. There is a sharp contrast between the gun evidence admitted in the first trial, and the prosecutor’s use of that evidence in that trial, and the nature and use of the limited gun testimony in the second penalty trial. In the first penalty trial, the State specifically moved to admit evidence of Rupe’s gun collection for the purpose of showing that Rupe was an extremely dangerous person. The trial court admitted into evidence several of the weapons themselves, including: (1) a CAR semiautomatic, rifle, (2) a 12-gauge shotgun with one shortened barrel, (3) a .22 caliber rifle, and (4) a pistol with interchangeable barrels. The prosecutor also presented the testimony of firearms experts who said that, though the weapons were legal, they were not suitable for hunting or sport. One expert added that the CAR 15 semiautomatic rifle was “designed as an antipersonnel rifle.” See Rupe I, 101 Wash.2d at 703, 683 P.2d 571. The prosecutor used this evidence against Rupe by arguing, among other things, that Rupe was an extremely dangerous man because the CAR 15 was “an assault weapon to gun groups of people down in combat situations.” Id. at 704, 683 P.2d 571. The Washington Supreme Court noted that the “crux of the prosecutor’s argument to the jury for defendant’s death” was Rupe’s ownership of guns. Id. at 708, 683 P.2d 571. The gun evidence in the second penalty trial, in contrast, was limited to the very brief testimony of Agent Shepp and the testimony concerning Rupe’s interest in target practice and military survival techniques which was introduced by Rupe’s witnesses in mitigation. The prosecutor did not expand upon Agent Shepp’s limited gun testimony or mention the gun testimony at any time during closing argument. Furthermore, the prosecutor did not seek to admit the weapons themselves or invite the jury to draw adverse inferences from Rupe’s ownership of the guns. In short, the State did not attempt to use the gun evidence against Rupe in any way. As a result, there is not a reasonable probability that the Washington Supreme Court would find that the admission of Agent Shepp’s limited gun testimony violated Rupe’s federal or state constitutional rights. Assuming, however, that the Washington Supreme Court would have found that the admission of Agent Shepp’s gun testimony violated Rupe’s federal or state constitutional rights, there is no reasonable probability that the court would have further found that Rupe suffered any prejudice from the admission of the evidence. Agent Shepp’s testimony concerning Rupe’s gun ownership was extremely brief and factual in nature, and the prosecutor did not expand upon or use the testimony. Moreover, other evidence of Rupe’s gun ownership was before the jury, and most of that evidence was introduced by Rupe himself or his mitigation witnesses in the course of describing Rupe’s hobbies and interests. Under these circumstances, there is no reasonable probability that the supreme court, viewing the record as a whole, would have found that Agent Shepp’s testimony had any impact on the jury’s verdict. F. Conclusion Petitioner has failed to establish that he is entitled to relief on his ineffective assistance of counsel claims. Accordingly, the Court denies Rupe’s habeas petition as to Claims 5.1, S.5.1 and 5.2. II. CLAIM 5.3 — EXCLUSION OF YOVE-TICH POLYGRAPH EVIDENCE Rupe contends that his Fifth, Eighth and Fourteenth Amendment rights were violated by the refusal of the trial court to admit the results of Monte Yovetieh’s polygraph examination at the second penalty trial. Yovetich’s polygraph examination conclusively indicated deception as to relevant questions concerning Yovetich’s involvement in the crime, including the question, “Did you participate in the robbery of that bank last Thursday?”. Rupe argues that because the polygraph results east doubt on Yovetieh’s claims that he was not involved in the robbery or murders, the evidence was relevant to Rupe’s relative culpability in the crime. As a result, Rupe maintains, the Yovetich polygraph examination results constituted relevant mitigating evidence related to the circumstances of the offense, which under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and its progeny, could not be excluded from the penalty phase of Rupe’s trial. A. Admissibility of Polygraph Examinations under Washington Law The general rule in Washington is that polygraph examinations are inadmissible absent stipulation. Rupe I, 101 Wash.2d at 690, 683 P.2d 571. In 1984, however, the Washington Supreme Court, in Bartholomew, 101 Wash.2d at 646, 683 P.2d 1079, ruled that polygraph examination results are admissible in capital sentencing proceedings when offered by the defense as evidence of mitigation, subject to certain restrictions. The Bartholomew court established two requirements for the admission of polygraph examination results at the sentencing phase of capital cases. First, the trial judge may refuse to accept such evidence if he or she is not convinced that the polygraph examiner is qualified or that the test was conducted under proper conditions. Second, if the graphs and examiner’s opinion are offered in evidence, the opposing party shall have the right to cross-examine the examiner respecting: (a) his qualifications and training; (b) the conditions under which the test was administered; (e) the limitations of and possibilities for error in the technique of polygraph interrogation; and (d) at the discretion of the trial judge, any other matter deemed pertinent to the inquiry. Id. B. State Court Rulings At Rupe’s first trial, the trial court, after hearing testimony from Yovetich and Officer Midthun (the polygraph examiner), refused admission of the Yovetich polygraph results at both the guilt and penalty phases, finding that the polygraph results faded to meet standards of reliability under state law. See 8 REC 3855-3862 (ruling of trial court). Because Rupe’s first penalty trial preceded the supreme court’s decision in Bartholomew, the trial judge’s ruling was not based on the application of the Bartholomew standard but rather on pre-Bartholomew Washington case authority concerning the admissibility of polygraph evidence generally. On appeal, Rupe challenged the exclusion of the polygraph evidence from both phases of his trial. The Washington Supreme Court, which had decided Bartholomew only two weeks earlier, upheld the exclusion of the evidence at the guilt phase, finding that it “simply does not reach the minimal threshold of reliability necessary to its admission in a criminal proceeding.” Rupe I, 101 Wash.2d at 690, 683 P.2d 571. The court stated: In addition to the questionable reliability of polygraph examinations, the present polygraph examination has other trustworthiness problems. The polygraphist concluded, during defendant’s offer of proof, that he doubted the test’s validity. He cited Monte Yovetich’s lack of sleep, hostility to the police and nervousness as factors which possibly affected the test results. Id. With respect to the exclusion of the evidence at the penalty phase, the supreme court, citing Bartholomew, concluded: Although we recognize that death sentence proceedings involve interests that require more relaxed evidentiary rules when considering evidence in defendant’s favor, we cannot go so far as to permit clearly unreliable evidence to be introduced. We hold, therefore, that polygraph examinations will not be admitted in those limited cases where their trustworthiness is seriously in doubt. Rupe I, 101 Wash.2d at 691, 683 P.2d 571. Because the Washington Supreme Court had upheld the exclusion of the Yovetich polygraph examination at Rupe’s first penalty trial, defense counsel did not move to admit the polygraph results at the second penalty trial. In response to an inquiry by the trial court as to the admissibility of the Yovetieh polygraph examination at the second penalty trial, defense counsel stated: ... I could see under circumstances where it would be admissible if we had, for example, a new hearing on the reliability of the polygraph in this particular ease, and went beyond what we did in the first hearing there, and the Court then were able to determine, well, I believe, in this case, it was reliable because of these new facts. As it stands now, I think we would be precluded simply from the Rupe decision. 14 REC 6479. The trial court agreed that the supreme court’s ruling in Rupe I precluded admission of the Yovetieh polygraph results at the second penalty trial. 14 REC 6497. C. Analysis 1. Predicate Issue Because Rupe’s trial counsel failed to offer the polygraph evidence at Rupe’s second penalty trial, the Court sua sponte raises the issue of whether Rupe may assert a due process claim based on the failure of the trial court to admit evidence that he did not offer. The Court concludes that under these unique and limited circumstances, Rupe’s due process claim is properly before this Court. Rupe offered the Yovetieh polygraph results at the first trial and challenged the trial court’s exclusion of the evidence on appeal. At the second penalty trial, Rupe was effectively prohibited from offering the Yovetieh polygraph results because of the Washington Supreme Court’s ruling in Rupe I that the polygraph evidence was properly excluded. There is no question that Rupe would have offered the evidence at the second penalty trial had the supreme court reached a different result concerning the polygraph evidence. The barrier to the jury’s consideration of this evidence was not therefore established by Mr. Rupe, but rather by the Washington Supreme Court’s ruling. As the United States Supreme Court has explained, the source of the barrier to the admission of relevant mitigating evidence is immaterial: Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute, by the sentencing court, or by an evidentiary ruling____ Whatever the cause, ... the conclusion would necessarily be the same: “Because the [sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.” Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct. 1860, 1865, 100 L.Ed.2d 384, 394 (1988) (citations omitted). Under these circumstances, the Court should consider Rupe’s due process claim. 2. Constitutional Standard The defendant in a capital case has a constitutional right to present all relevant mitigating evidence related to his character or the circumstances of the offense at the sentencing phase of his trial. Mak v. Blodgett, 970 F.2d 614, 623 (9th Cir.1992), cerf. denied, — U.S. -, 113 S.Ct. 1363, 122 L.Ed.2d 742 (1993). The Supreme Court held in Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), that the sentencer may not be precluded from “considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” See also Mak, 970 F.2d at 623. “Equally clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’ ” Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 877, 71 L.Ed.2d 1, 11 (1982)). Mitigating evidence is evidence that “might serve ‘as a basis for a sentence less than death.’ ” Skipper, 476 U.S. at 4-5, 106 S.Ct. at 1671 (quoting Lockett, 438 U.S. at 604, 98 S.Ct. at 2954). Thus, “States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.” Romano v. Oklahoma, — U.S. -, -, 114 S.Ct. 2004, 2009, 129 L.Ed.2d 1, 10 (1994) (quoting McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987)). The Supreme Court has also held, however, that this standard does not limit “the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Lockett, 438 U.S. at 605 n. 12, 98 S.Ct. at 2965 n. 12, 57 L.Ed.2d at 990 n. 12 (emphasis added). 3. Discussion It is well established that relevant evidence is evidence that has “ ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 1232, 108 L.Ed.2d 369, 379 (1990) (quoting New Jersey v. T.L.O., 469 U.S. 325, 345, 105 S.Ct. 733, 744-45, 83 L.Ed.2d 720 (1985)). This definition of relevance applies to mitigating evidence in the sentencing phase of a capital proceeding. Id., 494 U.S. at 440, 110 S.Ct. at 1232. There is no question that the Yovetich polygraph evidence was “relevant” within the meaning of Lockett and Eddings because it related to the “circumstances of the offense.” Specifically, it was relevant to Rupe’s relative culpability, a factor specifically recognized as relevant under Washington law. RCW § 10.95.070(4). Throughout Rupe’s first trial in the guilt and penalty phases, and at Rupe’s second penalty trial, Rupe’s counsel challenged Yovetich’s claim that he was not involved in the robbery or murders. At the second penalty trial, Rupe testified that he did not commit the crimes and that he saw Yovetich outside the bank immediately prior to the time the tellers were killed. Moreover, Rupe’s counsel effectively cross-examined Yovetich to b