Gentry, In re
| Decision Date | 18 February 1999 |
| Docket Number | No. 62677-4,62677-4 |
| Citation | 137 Wn.2d 378,972 P.2d 1250 |
| Parties | In re the Personal Restraint Petition of Jonathan Lee GENTRY, Petitioner. |
| Court | Washington Supreme Court |
Russell Hauge, Kitsap County Prosecutor, Pamela Loginsky, Deputy, Port Orchard, for Respondent.
Jonathan Gentry was sentenced to death for the aggravated first degree murder of 12-year-old Cassie Holden. We affirmed the conviction and sentence, and the United States Supreme Court denied Gentry's petition for certiorari. State v. Gentry, 125 Wash.2d 570, 888 P.2d 1105, cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995). Gentry's personal restraint petition (PRP) is now before us, as well as numerous motions Gentry and the State filed during the pendency of this PRP and which we have passed to the merits. The PRP renews many of the claims we rejected on appeal. We decline to reach those issues already resolved on direct
review. The PRP also raises several additional issues. We find the new issues Gentry raises to be without merit. We deny Gentry's PRP.
To place the issues in this case in appropriate context, we briefly review the facts of the case. Cassie Holden was beaten to death with a heavy rock in a wooded area adjacent to Rolling Hills Golf Course in Bremerton. Her shirt had been pulled up over her head, and her pants pulled down to her knees, but there was no physical evidence that she had been raped. Witnesses reported seeing a man on the golf course trail at about the time of the murder. Their descriptions led police to Gentry, who at the time of the murder was awaiting trial on a charge of first degree rape. He was free on bail and living in his brother's home near the golf course.
In August of 1988, the Kitsap County Prosecutor obtained a search warrant for the Gentry residence that produced clothing similar to that worn by the man seen on the golf course. One pair of shoes had been recently cleaned, but there were bloodstains on the shoelaces. The prosecutor also obtained a warrant for hair and blood samples from Gentry and the trial court appointed counsel to represent him in connection with the hair and blood testing. Over defense counsel's objection, the blood samples and a "Negroid" hair found on Cassie's body were subjected to several types of testing, including DNA tests. According to the State's experts, under each of these tests, the blood on the shoelaces was the same type as the victim's blood. The same tests excluded both Gentry and his brother as the source of the blood on the shoes and excluded Gentry as the source of the hair found on Cassie's body. The hair was determined to match that of Gentry's brother Edward, who was on board a Naval vessel at sea at the time of the murder. As Gentry lived with Edward and often wore his clothes, the State concluded Gentry inadvertently transported one of his brother's hairs to the crime scene on his clothing.
The forensics tests took many months to complete. While awaiting their results, Gentry was tried and convicted on the pending rape charge and transferred from the Kitsap County Jail to the prison at Shelton. In September of 1989, jail inmate Brian Dyste told authorities Gentry made incriminating statements while they were both in the county jail. Another inmate, Tim Hicks, subsequently reported additional incriminating statements Gentry allegedly made after his transfer to Shelton. Leonard Smith, who was also at Shelton at the time, confirmed Hicks' allegation.
In February 1990, the Kitsap County Prosecutor charged Gentry with first degree murder, and later amended the information to charge Gentry with both first degree felony murder and first degree premeditated murder. As to the latter count, the State alleged three aggravating circumstances: the murder was committed to conceal the commission of a crime, to protect or conceal the identity of a person committing a crime, and during the course or furtherance of a first or second degree rape or kidnapping. The kidnapping allegation was later dismissed. The State subsequently filed a notice of intent to seek the death penalty.
Following a lengthy pretrial hearing, the trial court ruled the DNA and other forensic evidence was admissible. In addition to that evidence, the jury heard testimony from the eyewitnesses who had seen an African-American man near the scene of the crime. One of these witnesses identified Gentry as the man she had seen. Dyste, Smith, and Hicks also related the incriminating statements Gentry allegedly made to them in jail before he was charged with the murder. Each said the State had neither offered nor provided any benefits or other inducements to them to testify. The defense called several witnesses who testified the forensic examinations were flawed, both in method and application. The defense contended the State's evidence did not accurately identify Gentry as the killer, and whoever killed the victim did so without premeditation during an attempted rape.
The jury found Gentry guilty of both premeditated murder Between the guilt and penalty phases of trial, the United States Supreme Court overruled two earlier cases and held that admission of "victim impact" evidence in the sentencing phase of a capital trial does not violate the Eighth Amendment. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Over defense objection, the trial court allowed the State to call the victim's father to testify in the penalty phase of Gentry's trial. In addition to Mr. Holden's testimony, the State presented documentary evidence showing Gentry's prior convictions for manslaughter, rape, and two burglaries. Gentry did not testify or exercise his right of allocution, but his mother and brothers testified about his childhood, their love for him, and the loss they would feel should he be executed. The jury unanimously found insufficient mitigating circumstances to merit leniency; Gentry was sentenced to death. We affirmed the conviction and the sentence.
and felony murder. It also found he committed the murder to protect or conceal the identity of a person committing a crime, 1 but not to conceal the commission of a crime and not during the course or furtherance of a first or second degree rape.
In his PRP, Gentry raises numerous issues he contends require us to award him a new trial or, alternatively, vacate his death sentence. In connection with the PRP, Gentry submitted the affidavits of his mother and stepfather alleging they had seen members of the jury conversing with the victim's family at the end of the first day of the penalty phase of the trial. The State submitted the affidavits of 8 jurors denying any contact. Because these conflicting affidavits represented a fact question, we ordered a reference hearing to resolve the issue of juror misconduct. 2
The reference hearing took place January 6-9, 1998, in
the Kitsap County Superior Court with the Honorable George L. Wood of the Clallam County Superior Court presiding as the trier of fact. Numerous witnesses testified for both sides as to the alleged improper contact between jurors and witnesses for the State. The trial court entered findings of fact and conclusions of law on January 26, 1998, concluding no contact had occurred between any juror and any member of the victim's family or with law enforcement officials during the pendency of the penalty phase of the trial. Gentry now contends the trial court findings are unsupported and the conclusions are erroneous.
1. Did the State deny Gentry a fair trial and due process of law by failing to reveal exculpatory evidence he could have used to impeach two jailhouse informants who testified against him?
2. Did Gentry receive ineffective assistance of trial counsel?
3. Did the trial court err in admitting victim impact evidence in violation of Gentry's rights under the state and federal constitutions?
4. Did juror misconduct occur during the sentencing phase of the trial?
5. Did the trial court err in giving jury instructions during the sentencing phase of the trial which violated Gentry's constitutional right to due process?
6. Did Gentry receive ineffective assistance of appellate counsel because appellate counsel did not assign error to the confusing jury instructions?
7. Did the trial court err in admitting a document evidencing Gentry's prior conviction for rape because the trial judge was also the trial judge who signed the judgment and sentence for rape?
8. Is the Washington death penalty statute under which Gentry was sentenced unconstitutionally vague?
9. Did the cumulation of all the previously alleged errors deny Gentry a fair trial?
In PRPs, we ordinarily will not review issues previously raised and resolved on direct review. In order to renew an issue rejected on its merits on appeal, the petitioner must show the ends of justice would be served by reexamining the issue. In re Personal Restraint Petition of Vandervlugt, 120 Wash.2d 427, 432, 842 P.2d 950 (1992); In re Personal Restraint Petition of Taylor, 105 Wash.2d 683, 688, 717 P.2d 755 (1986). This burden can be met by showing an intervening change in the law " 'or some other justification for having failed to raise a crucial point or argument in the prior application.' " Taylor, 105 Wash.2d at 688, 717 P.2d 755 (quoting Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)); see Vandervlugt, 120 Wash.2d at 432, 842 P.2d 950.
We take seriously the view that a collateral attack by PRP on a criminal conviction and sentence should not simply be reiteration of issues finally resolved at trial and direct review, but rather should raise new points of fact and law that were not or could not have been raised in the principal action, to the prejudice of the defendant. As we have noted: "To obtain relief with respect to...
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Chapter §8.2 RPC Pertaining to Advocacy
...296. 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). See discussion earlier in this section. 297. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 396, 972 P.2d 1250 (1999); In re Pers. Restraint of Benn, 134 Wn.2d 868, 952 P.2d 116 (1998), aff'd in part & rev'd in part sub nom. State ......
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Table of Cases
...Gaffney v. Megrath, 23 Wash. 476, 63 P. 520 (1900): 4–15 n.106 Gentry, In re Pers. Restraint of, 137 Wn.2d 378, 972 P.2d 1250 (1999): 8–36 n.297 Gibson, In re, 90 Wn.2d 440, 583 P.2d 633 (1978): 16–53 Gillingham, In re, 126 Wn.2d 454, 896 P.2d 656 (1995): 7–40 n.336; 7–41; 7–48; 7–48 nn.410......