In re Personal Restraint of Gregory
| Decision Date | 15 June 2021 |
| Docket Number | 53849-1-II |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Personal Restraint of ALLEN EUGENE GREGORY, Petitioner. |
UNPUBLISHED OPINION
In this personal restraint petition (PRP), Allen Eugene Gregory seeks relief from personal restraint imposed following his 2001 conviction for first degree aggravated murder of a woman who lived in his neighborhood. His neighbor was raped, robbed and stabbed to death in her house in 1996. The case remained open until the police obtained a search warrant for Gregory's vehicle and obtained an order to take a blood sample from Gregory based on an allegation of rape in an unrelated case, for which Gregory was charged and convicted in 2000. The search warrant and the DNA match from the blood sample provided evidence that Gregory committed the 1996 murder. He was convicted of first degree aggravated murder and sentenced to death.
Gregory appealed both the rape and aggravated murder convictions. In a consolidated case, the Supreme Court in 2006 reversed the rape conviction, affirmed the aggravated murder conviction and reversed the death sentence. On remand in 2012, Gregory again was sentenced to death for the aggravated murder conviction. He appealed the death sentence. In October 2018 the Supreme Court held that the death penalty was unconstitutional as applied and ruled that all death sentences would be converted to life in prison.
We hold that (1) Gregory is precluded from asserting his challenges to the search warrant and blood draw orders in a PRP because the Supreme Court addressed and rejected those claims in the two previous appeals, (2) the use of a stun belt on him during trial did not violate his constitutional rights, (3) he cannot show that the jury was infected by racial bias, (4) he waived his prosecutorial misconduct claim because he did not object at trial, and (5) there was no cumulative error. However, we hold that, as the State now concedes, the State cannot collect accrued interest from Gregory on a vacated legal financial obligation (LFO).
Accordingly we deny Gregory's PRP regarding his conviction, but we remand for the trial court to remove the interest on the vacated LFO.
In 1996, GH was found dead in her house in Tacoma with multiple stab wounds. Semen was found in her anal and vaginal swabs on her thigh, and on the bedspread. Jewelry and money were missing. The police suspected that Gregory, who lived near GH, was involved with the murder based on his inconsistent statements regarding his whereabouts at the time of the crime. However, they could not connect him with the crime.
In August 1998, a woman named RS informed the Tacoma Police Department (TPD) that a man later identified as Gregory had raped her. She stated that she got into a car with the man and that he displayed a buck knife before raping her three times. She said that he used a condom but the condom had broken. RS provided to the police a description of the car, several specific details regarding the car's interior, the license plate number, and a description of the assailant. RS had a history of working as a police informant.
The police identified Gregory as the owner of the car of the license plate number that RS had provided. After verifying that Gregory's car matched the specific details that RS had described, the police arrested him. The State charged Gregory with three counts of first degree rape.
In connection with the rape case, the police requested a search warrant for Gregory's car. The search warrant affidavit contained the details about the rapes and Gregory's vehicle provided by RS as described above. A magistrate issued the warrant. In the search of Gregory's car, the police discovered a buck knife and a condom. The condom had the same lot number and expiration date as the condom wrapper that had been found in the area where RS had stated the rapes had occurred.
The State also filed a motion to compel Gregory to provide a blood sample for DNA testing. The motion incorporated by reference the search warrant affidavit for the warrant to search of Gregory's car. The trial court entered an order that authorized the blood draw (September 1998 blood draw order). Gregory's attorney approved the form of the order.
Gregory's blood was drawn pursuant to the September 1998 blood draw order. The Washington State Patrol Crime Laboratory (WSPCL) compared a sample of Gregory's blood to seminal fluid from RS's rape kit and concluded that there was a DNA match.
More significantly, the WSPCL and two other labs concluded that Gregory's DNA matched the semen found at GH's crime scene. The State then charged Gregory with first degree aggravated murder for GH's murder. The aggravated circumstance was murder in the course of first degree rape and first degree robbery. The State sought the death penalty.
In the rape case, Gregory moved to suppress the results of the September 1998 blood draw. He argued that the blood draw was not supported by probable cause. The trial court eventually denied the motion to suppress and found that Gregory's attorney had agreed to the September 1998 blood draw order, and ruled that there was probable cause for the blood draw.
In response to Gregory's motion to suppress, the State moved for a second blood draw and presented an affidavit that only contained information known to the State at the time it sought the September 1998 blood draw order. After finding sufficient probable cause, the trial court in January 2000 entered a second blood draw order (January 2000 blood draw order). Gregory's blood was drawn again pursuant to the January 2000 blood draw order. The DNA in that blood again matched the semen found at the GH crime scene.
In the aggravated murder case, Gregory filed a motion to suppress information obtained as a result of the two blood draw orders in the rape case. The trial court concluded that collateral estoppel required the conclusion that the September 1998 blood draw had been entered as an agreed order and that probable cause supported the January 2000 blood draw order. Therefore, the court denied Gregory's motion to suppress.
At the rape trial in 2000, Gregory asserted a consent defense. He testified that he had consensual sex with RS, who he claimed was working as a prostitute on the night of the incident. He stated that RS became upset with him after he refused to pay her more money after the condom broke and that she accused Gregory of rape in retaliation.
A jury convicted Gregory of three counts of first degree rape. He was sentenced to 331 months of total confinement. Gregory appealed his convictions and sentence.
During pretrial proceedings in the aggravated murder case, Gregory was placed in a stun belt for security reasons. The trial court held a hearing and found good cause to order Gregory to wear a stun belt.
At the beginning of the aggravated murder trial, Gregory asked the court to reconsider the prior ruling regarding the stun belt. The trial court reviewed the pleadings submitted by the parties and held a hearing regarding the application of the stun belt. The court made extensive findings of fact, including consideration of an escape attempt, Gregory's rape conviction and sentence, the existence of several Hartzog[1] factors, the discreetness of the stun belt, and alternatives to the use of a stun belt. The court concluded that the stun belt was the least restrictive means possible to ensure the safety of all persons in the courtroom while ensuring that Gregory would have a fair trial by giving him the appearance of being free from restraint. As a result, the court denied Gregory's motion for reconsideration.
The aggravated murder case proceeded to a jury trial in 2001. The only two Black members of the jury pool were excused, one for hardship and one for cause. All members of the jury ultimately seated were white.
The trial court admitted into evidence the buck knife found in Gregory's car pursuant to the search warrant. A medical examiner testified that the knife could have inflicted GH's stab wounds. The trial court also admitted the evidence connecting Gregory's DNA to GH's crime scene. During opening statement and closing arguments, the prosecutors urged the jury to "declare the truth." Report of Proceedings (RP) (Feb. 14, 2001) at 4076; RP (March 19, 2001) at 6700, 6806. Gregory did not object.
The jury convicted Gregory of first degree aggravated murder. In the penalty phase of the trial, the jury sentenced Gregory to death. Gregory appealed the aggravated murder conviction and his death sentence.
The rape and aggravated murder cases were consolidated on appeal. State v. Gregory, 158 Wn.2d 759, 811, 147 P.3d 1201 (2006), overruled on other grounds by State v. W.R. 181 Wn.2d 757, 336 P.3d 1134 (2014) ("Gregory I"). The Supreme Court reversed the rape conviction, affirmed the aggravated murder conviction, but reversed the death sentence. Id. at 777-78.
The court reversed the rape conviction because the trial court erred when it declined to conduct an in camera review of the dependency files of RS's children that were open at the time of trial. Id. at 811. The court determined that the dependency files contained material impeachment evidence because they disclosed that RS had lied about her drug use and about her drug treatment. Id. at 798-99.
Gregory raised a number of arguments regarding his murder conviction all of which the court rejected. Id. at 813-48. Relevant here, Gregory argued that both the September 1998 and January 2020 blood draws were improper and were not supported by probable cause. Id. at...
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