In re Personal Restraint of Stenson

• Citation: 142 Wash.2d 710,16 P.3d 1
• Decision Date: 04 January 2001
• Docket Number: No. 66565-6.,66565-6.
• Parties: In the Matter of the PERSONAL RESTRAINT OF Darold J. STENSON, Petitioner.
• Court: United States State Supreme Court of Washington

16 P.3d 1

142 Wash.2d 710

In the Matter of the PERSONAL RESTRAINT OF Darold J. STENSON, Petitioner.

No. 66565-6.

Supreme Court of Washington, En Banc.

Considered June 8, 2000.

Decided January 4, 2001.

Ronald D. Ness, Judith M. Mandel, Ronald D. Ness & Assoc., Port Orchard, WA, for Petitioner.

Honorable Christopher O. Shea, Prosecuting Attorney for Clallam County, Lauren M. Erickson, Deputy, Deborah S. Kelly, Deputy, Port Orchard, WA, for Respondent.

GUY, C.J.

In a personal restraint petition (PRP) Darold J. Stenson asks this court to reverse his conviction and death sentence, which this court affirmed in State v. Stenson, 132 Wash.2d 668, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998). Petitioner Stenson claims he received ineffective assistance of counsel, which violates the Sixth Amendment because "the right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

Petitioner's strongest claims are those which are supported by Ninth Circuit precedents interpreting the ineffective assistance of counsel test in Strickland. However, a close inspection of those precedents and later cases, and applying their reasoning to the facts of this case, lead to the conclusion that Stenson's counsel was not constitutionally ineffective. We deny Stenson's personal restraint petition as to all claims.

FACTS

On March 25, 1993, Stenson called "911" and stated: "`[T]his is D.J. Stenson at Dakota Farms.... Frank has just shot my wife, and himself, I think.'" Stenson, 132 Wash.2d at 677, 940 P.2d 1239. Stenson and his wife Denise lived at Dakota Farms, where they raised exotic birds. Id. "Frank" was Frank Hoerner, friend and business associate of the Stensons. Id. The police arrived to find Hoerner face down on the floor, dead of a gunshot wound with a revolver resting beside his hand. Id. Upstairs in the master bedroom lay Denise Stenson, wounded by a gunshot to the head; she died the next day. Id.

According to Stenson, he and his wife had dinner the night before with Hoerner and his wife, also named Denise. Id. At that time Stenson and Hoerner arranged that Hoerner would go over to Dakota Farms to sign some insurance papers for some ostriches which were to be purchased by Stenson for the two of them. Id. Stenson said Hoerner had invested over $30,000 in the Stensons' exotic bird business, and Stenson had told Hoerner he was going to Texas to pick up Hoerner's ostriches. Id. at 678, 940 P.2d 1239. Because Hoerner had to catch a ferry to go to work on the Seattle-side of Puget Sound, he would have to go to the Stensons' residence at 3:30 in the morning. Id. at 677, 940 P.2d 1239. Hoerner signed the papers in Stenson's office located in a separate building behind the house. Id. at 678, 940 P.2d 1239. Stenson said Hoerner then left to use the bathroom in the house. Id. When Hoerner did not return, Stenson went to the main house to investigate. Id. He found him shot to death in the guest bedroom downstairs. Id. He heard moaning and went upstairs to find his wife shot and then called "911." Id. Stenson told the police that his three young children were asleep when their mother was shot and that he himself did not hear any gunshots. Id. Subsequent investigation indicated that Hoerner had probably been beaten unconscious by a blow to the head and then dragged into the house from the gravel driveway, through the laundry room, and shot in the head in the guest bedroom. Id. at 679, 940 P.2d 1239. The investigation showed spatters of Hoerner's blood in the driveway and in the laundry room; there was also a bloody fingerprint of Stenson's on the freezer in the laundry room. Id. at 679-80, 940 P.2d 1239. Stenson's jeans had spatters of blood on them, which were consistent with Hoerner's blood protein profile. Id. at 680, 940 P.2d 1239. Some of the blood spatters on the jeans were not the type of stains which could have been formed on the jeans after Hoerner was already on the floor. Id.

Later investigation also showed that Stenson was in financial difficulty. Id. Hoerner had given Stenson $50,000 toward the purchase of birds, but records showed that only one purchase of two birds worth $2,000 had been made from that investment. Id. Denise Hoerner testified that a month before his death, Hoerner had told Stenson he wanted the birds or his money back. Id. at 681, 940 P.2d 1239. The bank account of Dakota Farms showed a balance of approximately $3,400. Id. at 680, 940 P.2d 1239. The prosecution's theory of the case was that Stenson killed his wife to collect $400,000 in insurance money and killed Hoerner to get out from under the $48,000 he owed Hoerner and to blame him for Denise Stenson's murder. Id. at 681, 940 P.2d 1239.

Stenson was arrested on April 8, 1993 and charged with two counts of first degree aggravated murder. Id. On August 11, 1994, the jury found Stenson guilty of the crimes of premeditated murder in the first degree of Denise Stenson and Frank Hoerner. Id. at 682, 940 P.2d 1239; R. of Trial Proceedings (RTP) at 1853-63. On August 18, the jury found insufficient mitigating circumstances to merit leniency. R. of Death Penalty Proceedings (RDP) at 459.

After several weeks of jury selection, on July 13, 1994, the trial court held an in camera proceeding to hear Stenson's motion to substitute counsel or to proceed pro se. Stenson, 132 Wash.2d at 731, 940 P.2d 1239. At that hearing Stenson's lead counsel, Fred Leatherman, explained that the conflict between him and Stenson was over the tactics to be employed during the guilt phase of the trial. Id. at 730-31, 940 P.2d 1239. Leatherman said that his team felt the guilt phase was not "winnable" and that they did not want to do anything during the guilt phase to create problems for Stenson in the penalty phase. R. of Voir Dire Proceedings (RVP) at 3118. He did not want to alienate the jury. Id. at 3124. Stenson complained that Leatherman was not trying to help him prove his innocence and win his case. Id. at 3125. The trial strategy Stenson wanted Leatherman to employ was to put Denise Hoerner on trial and lay the crime at her feet. Id. at 3138. Leatherman countered that the dead man's widow would be a sympathetic figure and going after her would alienate the jury. Id. at 3124, 3139, 3146. Leatherman felt Stenson's strategy would not work in light of the compelling physical evidence suggesting that Stenson was the perpetrator, evidence which Leatherman recounted at length in the in camera proceeding. Stenson, 132 Wash.2d at 731, 940 P.2d 1239. Stenson also mentioned that he and Leatherman disagreed on other issues such as the questioning of other witnesses. RVP at 3148. On July 14, 1994 the trial court denied Stenson's motion. RVP at 3312.

On August 3, 1994, Leatherman made a motion to withdraw as trial counsel. Stenson, 132 Wash.2d at 742, 940 P.2d 1239. The trial court denied this motion. RTP at 1507.

On July 24, 1997, this court affirmed Stenson's convictions and the imposition of the death sentence. Stenson, 132 Wash.2d at 760,940 P.2d 1239. The United States Supreme Court denied certiorari on March 9, 1998. Stenson v. Washington, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998). A first personal restraint petition was filed on April 7, 1998 and an amended version filed on April 29, 1999.

ISSUES

(1) Was there an actual conflict of interest or irreconcilable conflict between Petitioner and his counsel which adversely affected counsel's performance in violation of the Sixth and Fourteenth Amendments to the United States Constitution?

(2) Does a defendant have a Sixth Amendment right to determine trial tactics and the theory of defense?

(3) Did counsel's opposition to Petitioner's request for substitution of counsel violate Petitioner's Sixth Amendment right to effective assistance of counsel?

(4) Was Petitioner denied counsel at a crucial stage of the proceedings in violation of the Sixth and Fourteenth Amendments to the United States Constitution?

(5) Did counsel violate a fundamental duty to his client by not timely moving to withdraw from representation?

(6) Did counsel's decision not to call witnesses during the guilt phase of the trial violate the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution?

(7) Was counsel's failure to call witnesses to rebut the prosecution's claim that Stenson showed no grief deficient performance?

(8) Was counsel's failure to rebut the prosecution's negative presentation of the relationship between Stenson and his wife deficient performance?

(9) Was counsel's failure to present testimony regarding the profitability of Dakota Farms deficient performance?

(10) Did counsel's failure to propose a "lingering doubt" instruction violate Petitioner's Sixth Amendment right to counsel?

(11) Were Petitioner's Fifth Amendment rights violated when counsel made his penalty phase argument?

(12) Did Stenson receive ineffective representation when his counsel failed to offer other suspect evidence in the guilt phase?

(13) Was counsel's performance in preparing for testimony regarding Stenson's jeans deficient and ineffective?

(14) Was counsel's failure to personally interview and prepare for the testimony of Dr. Brady ineffective representation?

STANDARD OF REVIEW

"As a threshold matter, it is important to note that a personal restraint petitioner may not renew an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue." In re Personal Restraint of Lord, 123 Wash.2d 296, 303, 868 P.2d 835 (1994) (citing In re Personal Restraint 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...