In re Stenson

• Decision Date: 10 May 2012
• Docket Number: No. 83606–0.,83606–0.
• Parties: In the Matter of the Personal Restraint of Darold Ray STENSON, Petitioner.
• Court: Washington Supreme Court

174 Wash.2d 474

276 P.3d 286

In the Matter of the Personal Restraint of Darold Ray STENSON, Petitioner.

No. 83606–0.

Supreme Court of Washington.

Argued Oct. 20, 2011.

Decided May 10, 2012.

Robert Harris Gombiner, Law Offices of Robert Gombiner, Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Peter Joseph Avenia, Federal Public Defender, Seattle, WA, for Petitioner.

Deborah Snyder Kelly, Clallam County Prosecutor's Office, Port Angeles, WA, Pamela Beth Loginsky, WAPA, Olympia, WA, for Respondent.

ALEXANDER, J.^*

[174 Wash.2d 476]¶ 1 In 1994, Darold Stenson was sentenced to death after he was found guilty of murdering his wife, Denise Stenson, and business partner, Frank Hoerner. In 2009, Stenson's counsel filed the personal restraint petition (PRP) that is before us now. In it he has raised a due process claim based on alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Stenson's Brady claim pertained to evidence consisting of photographs and an FBI (Federal Bureau of Investigation) file that the State had access to at the time of trial but did not provide to Stenson's counsel until 2009. The question before us is whether the State violated Stenson's rights under the mandates of Brady and its progeny. Because we hold that it did, we reverse Stenson's aggravated first degree murder conviction as well as the sentence of death and remand for a new trial.

I

¶ 2 In the early hours of March 25, 1993, Darold Stenson called 911 from his home to report that his wife and business partner had been shot. A Clallam County deputy sheriff soon arrived at the scene and was directed by Stenson to the body of Frank Hoerner. Hoerner appeared to have died from a gunshot wound to the head. Stenson also directed the deputy sheriff to a bed within his home in which his wife, Denise, was lying with what appeared to be a bullet wound to her head. Denise Stenson later died at a hospital.

¶ 3 Stenson told the deputy sheriff that Hoerner had arrived at Stenson's office earlier that day, ostensibly to sign paperwork relating to a business deal. Stenson's office was located next to his house. Stenson explained that Hoerner later went into the house indicating his intent to use a bathroom. Stenson said he later went into the house to look for Hoerner and discovered that Hoerner and Denise Stenson had both been shot. Stenson indicated to the deputy sheriff that Hoerner may have shot Denise Stenson and then turned the gun on himself.

¶ 4 A subsequent investigation by the sheriff's office convinced them that Hoerner had not committed suicide but, rather, had been beaten unconscious and dragged from Stenson's gravel driveway into the house. It was there, the investigators believed, that Hoerner had been shot in the head at close range.

¶ 5 Stenson was thereafter arrested and charged in Clallam County Superior Court with two counts of aggravated first degree murder. At the trial on the charges, the State's theory of the case was that Stenson had killed his wife to collect life insurance proceeds and then killed Hoerner to get out from under a debt he owed to Hoerner and to blame Hoerner for the murder of Denise Stenson.

¶ 6 Two key pieces of forensic evidence directly tied the defendant to the shootings: (1) gunshot residue (GSR) ¹ found inside the front right pocket of jeans that Stenson was wearing when the officers arrived at his house and (2) blood spatter on the front of those jeans that was consistent with Hoerner's blood protein profile. See Reference Hr'g Findings & Conclusions (RHFC) at 18; State v. Stenson, 132 Wash.2d 668, 680, 940 P.2d 1239 (1997)( Stenson I). Stenson claimed that when he discovered Hoerner's body he kneeled next to it, suggesting that this may have accounted for the blood spatter on his jeans. An expert witness called by the State testified at trial that some of the blood spatter on Stenson's jeans could not have been deposited after Frank came to his final resting place on the floor. The remainder of the evidence presented by the State at trial was largely circumstantial.

¶ 7 A jury found Stenson guilty of both counts of aggravated first degree murder and concluded that there were not sufficient mitigating circumstances to merit leniency. Based on the verdicts, the trial court sentenced Stenson to death. Stenson appealed and in 1997 this court affirmed both convictions and the death sentence. We have since rejected four PRPs filed by Stenson. See In re Pers. Restraint of Stenson, 142 Wash.2d 710, 16 P.3d 1 (2001)( Stenson II); In re Pers. Restraint of Stenson, 150 Wash.2d 207, 76 P.3d 241 (2003)( Stenson III); In re Pers. Restraint of Stenson, 153 Wash.2d 137, 102 P.3d 151 (2004)( Stenson IV); see Wash. Supreme Ct. Order, In re Pers. Restraint of Stenson, No. 82332–4 (Nov. 19, 2008) (denying PRP as successive).

¶ 8 In 2008, Stenson's appellate counsel were notified that FBI Special Agent Ernest Peele, an expert witness who testified at Stenson's trial, had given testimony about bullet lead analysis in a manner that exceeded the scope of what that evidence could properly show. Although the bullet lead analysis evidence was of relatively little significance at trial, the information about Peele's flawed testimony raised additional questions for Stenson's counsel who had already been reviewing the evidence in Stenson's case based on information they had received about other potential suspects. Armed with the new information about Peele's testimony, Stenson's counsel decided to “ ‘throw [ ] out as wide a net as they could’ ” to be able to present an “ ‘actual innocence’ ” claim. RHFC at 8. Accordingly, they requested the State to turn over all records relating to bullet lead analysis, GSR, and blood spatter testing.

¶ 9 The State responded in 2009 and disclosed evidence that had not previously been made available to the defense team, to wit: (1) photographs depicting Clallam County Sheriff's Detective Monty Martin wearing Stenson's jeans with the right pocket turned out and showing Martin's ungloved hands,² and (2) an FBI file containing the GSR test results that revealed a person named Kathy Lundy, not Peele as Peele's testimony at trial implied, had performed the GSR tests at the FBI laboratory. Stenson then filed, without benefit of counsel, a fifth PRP, in which he claimed that his trial counsel had been ineffective because they failed to discover this previously undisclosed evidence prior to trial. SeeIn re Pers. Restraint of Stenson, No. 83130–1 (May 26, 2009). Shortly thereafter, Stenson's appellate counsel filed this PRP, his sixth, alleging Brady and Napue³ violations based on the previously undisclosed photographs and FBI file.⁴

¶ 10 We subsequently ordered Judge Williams of the Clallam County Superior Court, the judge who had presided over Stenson's trial, to conduct a reference hearing. The reference hearing pertained to questions about whether the evidence disclosed in 2009 was, in fact, newly discovered.⁵At the conclusion of the reference hearing, which occurred over a two week period in January 2010, Judge Williams made numerous findings of fact, some of which we set forth hereafter:

[P]hotographs ... show[ ] Mr. Stenson's pants being handled ⁶ by an ungloved law enforcement officer, with the pockets turned inside out, six days prior to the pockets being sampled for gunshot residue.

RHFC at 3.

Martin took Mr. Stenson's pants to Mr. [Rod] Englert [at Intermountain Laboratory in Portland, Oregon] on the 14th of April, 1994. Mr. Englert suggested to Detective Martin that Mr. Stenson's pants pockets be tested for GSR. The pants pockets were turned out [on] that date to look for blood evidence.

Id. at 9.

On April 20, 1994, in Detective Martin's garage, GSR sampling dabs of the pants pockets were taken as well as luminal testing of the pants. The pants pockets were again turned inside out.... The dab samples were then sent to the FBI.

Id. at 10.

Prior to trial there were numerous hearings and discovery orders entered .... compelling the State to provide the defense with all evidence “favorable to the defense on the issue of guilt and to provide the defense with the name of every expert witness and a copy of that witness's report” [and the] “reports, letters and conclusions prepared by or on behalf of lab or other forensic experts.”

Id. at 1–2 (citing Reference Hr'g Ex. 10–11).

The testimony is that the photographs were available to investigators representing both the State and the defense. The testimony of Mr. Englert is that [he] met with the defense investigator Walker ... and that the entire file which included the photographs was on the table. Mr. Walker's reports note the existence of [the] photographs and describe several of them. Two copies of the photographs were printed. Only one remains in Mr. Englert's file. Mr. Walker's report states that Mr. Englert suggested he get copies of the file and photographs from the Prosecuting Attorney as it would be cheaper. Mr. Englert told Mr. Walker that Detective Monty Martin had a copy of the photographs. Mr. Englert was paid for mailing. The testimony at the reference hearing was that neither Detective Martin nor the Prosecuting Attorney recalled receiving copies of the pictures. Mr. Englert testified that he would not have released the pictures or his file to the defense team without permission. Prosecuting Attorney [David] Bruneau testified that he had never seen the photos nor knew the pants pockets had been turned out ... until 2010. A motion for discovery of the Englert notes was filed and argued and the notes were provided [but the photographs were not]. However at the same time the Prosecuting Attorney stated that Mr. Englert would not be called as a witness.

Id. at 21–22.

Nothing in materials provided to [the] defense [team] stated that the Englert examination included turning the pockets out and anyone being ungloved. It was reasonable to assume, as [the] defense did, that nothing in...