In re Gentry

• Decision Date: 05 May 2014
• Docket Number: No. 86585–0.,86585–0.
• Citation: 316 P.3d 1020,179 Wash.2d 614
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of Jonathan Lee GENTRY, Petitioner.

179 Wash.2d 614

316 P.3d 1020

In the Matter of the Personal Restraint of Jonathan Lee GENTRY, Petitioner.

No. 86585–0.

Supreme Court of Washington,

En Banc.

Argued June 25, 2013.

Decided Jan. 23, 2014.

As Amended on Denial of Reconsideration May 5, 2014.

Timothy Kent Ford, Rita Joan Griffith, Attorney at Law, Seattle, WA, for for Petitioner(s).

Randall Avery Sutton, Kitsap Co Prosecutor's Office, Port Orchard, WA, for Respondent(s).

Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Cassandra Stubbs, ACLU Capital Punishment Project, Brian Stull, ACLU Foundation, Durham, NC, for amicus counsel for American Civil Liberties Union.

Lyle Alan Tenpenny, Yarmuth Wilsdon PLLC, Seattle, WA, Sherrilyn Ifill, Christina Swarns, Johanna Steinberg, Jin Hee Lee, Vincent Southerland, NAACP Legal Defense & Educational Fund, New York, NY, Jason A. Leckerman, Lucretia C. Clemons, Lindsay D. Breedlove, Marcel S. Pratt, Ballard Spahr LLP Philadelphia, PA, Ethan Chernin, Ballard Spahr LLP, Los Angeles, CA, for amicus counsel for Naacp Legal Defense & Educational Fund, Inc.

STEPHENS, J.

¶ 1 Jonathan Lee Gentry was convicted in 1991 of the aggravated first degree murder of 12–year–old Cassie Holden and sentenced to death by a jury. Gentry is African American and Holden was white. Gentry's direct appeal before this court was unsuccessful. State v. Gentry, 125 Wash.2d 570, 888 P.2d 1105 (1995). One of the issues he raised there was a claim that the decision to pursue a capital case against him, and the trial that ensued, was unfairly tainted by the specter of racial bias on the part of the prosecution. Id. at 609, 888 P.2d 1105. We rejected that contention, concluding in part that Gentry had not shown prejudice resulting from any misconduct. Our recent decision in State v. Monday, 171 Wash.2d 667, 257 P.3d 551 (2011), makes it clear, however, that when a party shows prosecutorial misconduct based on racial bias, it is the State's burden to show harmlessness beyond a reasonable doubt. Gentry brings this personal restraint petition in light of Monday.

¶ 2 While we believe the rule in Monday is critically important to our justice system, we conclude it does not qualify as a “watershed” rule that can be applied retroactively under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Nevertheless, because of the gravity of the punishment and the claims here, we wish to stress that even if Gentry's claims were not procedurally barred, they would still fail under the standard imposed by Monday because Gentry cannot demonstrate prejudice to merit relief on collateral review. We therefore dismiss his personal restraint petition. ¹

FACTS

¶ 3 The facts of this case are well known and were summarized in this court's decision on Gentry's direct appeal.

In early June 1988, the 12–year–old victim lived with her father and stepmother in Pocatello, Idaho. On June 11, 1988, she traveled to Kitsap County, Washington, to spend the summer with her mother at her mother's home near Bremerton. On June 13, 1988, at approximately 4:30 p.m., the young victim went for a walk. She was expected home at 6 p.m. for dinner, but never returned.

Her body was found early June 15, 1988, behind a large log at the bottom of a path running from a trail through a wooded area adjacent to Rolling Hills Golf Course, near Bremerton, Washington. The victim's eyeglasses, earring and a bouquet of flowers were found approximately 148 feet up the footpath on and near the main trail.

The victim appeared to have been sexually assaulted, as her jeans and underpants were pulled down and her T-shirt and bra pulled up. Her blue sweatshirt had been removed from one arm and pulled up, partially covering her face. She had been struck in the head approximately 8 to 15 times, suffering 10 “significant” injuries.

Kitsap County sheriff deputies investigated the murder scene and determined that a trail of blood was splattered from the main trail, down the footpath about 148 feet to where the body was found. They found a 2.2–pound rock that had blue fibers crushed into it. The fibers matched the fibers in the victim's sweatshirt. The rock also had red spots on it that appeared to be blood. The rock was believed to be the murder weapon.

The autopsy showed that the victim had been killed by one of the blows to her head. The results of the autopsy could not show the order in which the blows were received or which blow actually killed the victim. The autopsy did not conclusively show that the young victim had been raped.

During the autopsy several loose hairs were removed from the victim's body. An examination of the hairs showed that most of them were consistent with the victim's own hairs. Two of the hair fragments were recovered from her T-shirt and were Negroid hairs. A coarse brown hair, believed to be a pubic hair from a Caucasian, was found on the victim's left thigh and a red pigmented hair was found on one of her shoes. The Negroid hair was later determined to be genetically consistent with the Defendant's brother's arm hair. Defendant's brother was not in Kitsap County at the time of the murder. Evidence was produced to show that the Defendant, who lived with his brother's family, wore his brother's clothes on occasion. There was no identification connected with the Caucasian hair.

The investigation eventually focused on the Defendant. A search of his residence was conducted and clothing samples, including a pair of shoes, were seized. Examination of the shoes indicated that blood had been wiped from the shoes. Spots of blood were found on the shoelaces and those bloodstains were the subject of a number of scientific tests. These [tests matched the blood to Hoklen's type; 0.18% percent of the population would have this type....] [T]esting was also conducted on a hair found in the victim's T-shirt which yielded a PCR [ (polymerase chain reaction) ] type of 1.2, 1.2, which is not the same as the Defendant's type, but does match his brother's type.

A Frye [ v. United States, 54 App.D.C. 46, 293 F. 1013 (1923) ] hearing was conducted over the course of 6 weeks. The trial court concluded that the scientific evidence was reliable and should be admitted.

Other evidence linking Defendant to the murder included the testimony of three persons who reported seeing a man matching Defendant's description near the place of the murder and around the time of the murder, and three former jailmates of the Defendant who testified that the Defendant admitted to them he had killed someone. The testimony of these witnesses was essentially as follows.

Witness E.S. and her daughter, K.T. testified that they had seen an African American man walking past E.S.'s home toward Rolling Hills Golf Course between 4 p.m. and 7 p.m. on June 13, 1988. The man was wearing a cap, a sports jacket and slacks. His clothing was described as scruffy and of a light color. E.S. later identified the individual as the Defendant, Jonathan Gentry. At the time of the murder, the Defendant was residing in the home of his brother and sister-in-law a short distance from E.S.'s home and the Rolling Hills Golf Course.

Witness F.B. was a bicyclist who had ridden the trails in the wooded area near Rolling Hills Golf Course a number of times. On June 13, 1988, the day of the homicide, he and a friend went to the area after work and rode the main trail from Riddell Road, south of the golf course, to the golf course and back. F.B. then traveled from Riddell Road, along the main trail to McWilliams Road. During this last time across the path, at approximately 5:30 p.m., he saw an African American man standing just off the main trail. F.B.'s description of the man was consistent with that given by E.S.

Witness B.D. had been incarcerated in the Kitsap County Jail with the Defendant in the summer of 1988. He testified that he and the Defendant were playing cards when detectives arrived to take samples of Defendant's hair in connection with the investigation of the victim's murder. B.D. testified that when the Defendant returned to the card game, Defendant said, “They found my hair on the bitch.” When B.D. asked the Defendant whether he had killed the young girl, he said that he had but that they could not prove it.

Witness T.H. had been incarcerated with the Defendant at the Washington State Correctional Center at Shelton in December 1989 and January 1990. He testified that the Defendant told him that he had killed a 10–year–old girl who lived across the street from his brother's house because he thought she was leading him on. This statement was made, according to T.H., during a card game and others, including inmate L.S., were present.

L.S. testified that the Defendant told him that he had killed his girlfriend and disposed of her body.

The jury found the Defendant guilty of premeditated first degree murder and of felony murder. The jury additionally found that the murder was committed to conceal the identity of a person committing a crime, thus finding an aggravating circumstance which subjected Defendant to the possibility of a death sentence.

Gentry, 125 Wash.2d at 579–82, 888 P.2d 1105. This court affirmed Gentry's conviction and remanded for issuance of a death warrant. Id. at 658, 888 P.2d 1105. The court also rejected a subsequent personal restraint petition. In re Pers. Restraint of Gentry, 137 Wash.2d 378, 972 P.2d 1250 (1999).

¶ 4 Gentry filed this personal restraint petition in October 2011. On October 10, 2012, Gentry filed a motion to ask that this court set oral argument or alternatively remand for supplementation of the record or reference hearing in light of State v. Davis, 175 Wash.2d 287, 362–73, 290 P.3d 43 (2012). We denied Gentry's motion to supplement or remand in light of Davis and struck the portions of his briefing dealing with Davis.² We granted his request for oral argument. Amici curiae American Civil Liberties Union, American Civil Liberties Union of Washington ...