Personal Restraint of Benn, Matter of

Decision Date05 June 1997
Docket NumberNo. 61080-1,61080-1
Citation134 Wn.2d 868,952 P.2d 116
CourtWashington Supreme Court
PartiesIn the Matter of the Personal Restraint of Gary BENN, Petitioner. . Considered

David Zuckerman, Suzanne Lee Elliott, Seattle, for Petitioner.

John W. Ladenburg, Prosecuting Attorney, Barbara Corey-Boulet, Mark Von Wahlde, Deputy Prosecuting Attorneys, Tacoma, for Respondent.

Page 879

GUY, Justice.

Defendant Gary Benn has been convicted of two counts of aggravated first degree murder and sentenced to death. We earlier affirmed those convictions and sentence. State v. Benn, 120 Wash.2d 631, 845 P.2d 289 (1993). In this personal restraint petition, the defendant renews some of the issues rejected on direct appeal and raises several new issues. After this court considered the personal restraint petition, the defendant filed a motion to supplement the petition. We deny both the motion to supplement and the personal restraint petition as to all claims.

FACTS

Gary Benn's half-brother, Jack Dethlefsen, and long-time friend, Mike Nelson, were shot to death in Mr. Dethlefsen's home on the afternoon of February 10, 1988. Mr. Benn initially denied any involvement in the murders but later made incriminating statements to a fellow jail inmate, his brother, and a friend. Defense counsel conceded in opening statement that Mr. Benn had killed Jack Dethlefsen and Mike Nelson and explained that the issues for the jury would be whether the defendant had acted with premeditated intent to kill and whether the killings were part of a common scheme or plan. The State presented evidence of three possible motives for the murder: (1) the defendant feared the victims were going to report his involvement in an insurance fraud scheme involving a fire in, and burglary of, his trailer; (2) the defendant was angry that Jack Dethlefsen had removed the defendant as a beneficiary from his will and named William Hastings in his place; and (3) the defendant believed Jack Dethlefsen was harassing his former girlfriend.

Additional circumstances regarding the murders, the police investigation, and the defendant's trial are described in detail below in connection with the particular legal issues to which these facts are relevant.

Appeal and Personal Restraint Petition. We affirmed the defendant's convictions and death sentence in February

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1993. The Supreme Court denied certiorari on November 1, 1993. On December 2, 1993, we appointed counsel to represent the defendant in a personal restraint proceeding. We subsequently granted counsels' motion for funds to hire an investigator. Counsel filed a personal restraint petition for the defendant in August 1994, 1 renewing some of the issues rejected on appeal and raising several additional issues, including claims of newly discovered evidence regarding informant Roy Patrick (to whom the defendant allegedly confessed while in jail) and regarding a 1987 investigation of a fire at the defendant's trailer. Appended to the petition are Detective Reinicke's report on the investigation of the fire and the fire marshal's affidavit relating his conclusion that the fire was accidental. There are also various documents appended to the petition regarding Jack Dethlefsen's criminal history and reputation for violence, Roy Patrick's criminal history, the defendant's mental state before and during trial, and defense counsel Raymond Thoenig's representation at trial. On this last point, one of the jurors submitted an affidavit stating that when the defendant began his allocution, Mr. Thoenig turned his back on Mr. Benn and the jury and appeared to be angry. The defendant's brother, Monte Benn, also recalled Mr. Thoenig turning away from the defendant "apparently in frustration or anger" as the defendant began his statement to the jury. App. to Pet. Ex. 4 at 5.

Also appended to the petition is the affidavit of one of the defendant's personal restraint petition attorneys, Charlotte Cassady, who interviewed Roy Patrick in June 1993. Mr. Patrick reportedly told her that "informants were placed in cells with inmates by the police 'all the time.' " App. to Pet. Ex. 7 at 1. Ms. Cassady then asked Mr. Patrick if the police had asked him to elicit information from the defendant or had he just happened on the information after befriending Mr. Benn. Mr. Patrick said he could not remember whether the police had asked him to get information from the defendant. When pressed, Mr. Patrick told

Page 881

Ms. Cassady that this was "just a technicality" and "didn't mean anything," and that Mr. Benn "deserved what happened" and "didn't deserve to get off on a technicality." App. to Pet. Ex. 7 at 2.

Pierce County Corrections Officer Minker provided the defendant's attorneys with an affidavit claiming that "on occasions in the past, known snitches have been placed in tanks intentionally to elicit information from a particular prisoner." App. to Pet. Ex. 45 at 1. According to Officer Minker, "[w]hen this has occurred, a detective has contacted the sergeant or lieutenant in charge of classifications and asked that the snitch be placed in a certain locale." App. to Pet. Ex. 45 at 1. Officer Minker testified he knew this "because I have overheard conversations between the classifications sergeant or lieutenant in which s/he has told the programs/classification officers to place a snitch/inmate in a special locale to get information from a particular prisoner." App. to Pet. Ex. 45 at 2. Officer Minker did not say how frequently this occurred or whether Roy Patrick was deliberately placed with the defendant.

Defense counsel also obtained Roy Patrick's booking record, which shows he was booked into the Pierce County jail on September 14, 1988, and released on January 25, 1989. This document states that Mr. Patrick had high blood pressure and had suffered a stroke at St. Joseph's Hospital four months prior to his incarceration. There is also a jail report in which an officer stated that he observed inmate Patrick lying on his bunk having what appeared to be convulsions. The report states the officer called medical personnel, but there is no mention of what treatment Mr. Patrick received.

Defense counsel provided this information regarding Mr. Patrick's medical history to Dr. Teresa Murphy. Dr. Murphy then signed a declaration stating that it was reasonable to expect that Mr. Patrick had decreased cognitive function, including both long- and short-term memory loss, when he was incarcerated with the defendant and gave his statement to the police. Dr. Murphy expressed no opinion regarding Mr. Patrick's mental condition at the time of the defendant's trial.

Page 882

Also appended to the petition is the declaration of Melvin Stevens, an informant whose tip supported a warrant to search Roy Patrick's motel room during the defendant's trial. Mr. Stevens claimed that he often saw Mr. Patrick smoke marijuana and also saw him smoke cocaine. According to Mr. Stevens, Mr. Patrick told him "the man charged with murder had not done what he intended to testify that he had done." App. to Pet. Ex. 42 at 1. Mr. Stevens also stated that Mr. Patrick told him that "a lawyer or somebody" was paying him (Patrick) $10,000 for testifying. App. to Pet. Ex. 42 at 1.

In July 1995, we considered the defendant's personal restraint petition and transferred the case to the superior court for an evidentiary hearing and entry of findings of fact limited to the following questions:

(1) What understanding, if any, was there between state officers and Roy Patrick regarding Patrick's relationship, dealings or contacts with the defendant while the two were held in the county jail?

(2) What, if anything, did Roy Patrick tell Melvin Stevens regarding the testimony Patrick planned to give when called as a witness at the defendant's trial?

(3) Did attorney Raymond Thoenig perceptibly react to the defendant's allocution; if so, did the jurors observe or respond to that reaction and when did the defendant or his attorney learn of Mr. Thoenig's reaction?

Reference Hearing. The superior court heard prehearing motions to determine the proper scope of the hearing. The State took the position that the evidence should be limited to the three questions set forth in the remand order, and that each of those questions related to one specific claim the defendant had raised in his personal restraint petition. Defense counsel, however, argued that the defendant should be permitted to explore such other, related issues as may be revealed by the testimony. They also interpreted the first question to relate not only to the admissibility of the defendant's alleged statement to Mr. Patrick, but also to the defendant's claims of prosecutorial misconduct and

Page 883

ineffective assistance. The superior court ultimately heard testimony from about 50 witnesses, including Roy Patrick, Melvin Stevens, three of the attorneys who represented the defendant at trial, several prosecuting attorneys, the trial judge, all of the jurors who could be located, Monte Benn, and numerous police officers and jailers. 2

The superior court subsequently entered detailed findings of fact to the following effect: Roy Patrick worked as an informant with Tacoma Police Detective Ron Lewis in 1988. That relationship ended by May 1988. Mr. Patrick did not work as an informant for anyone between May 1988 and June 1989. Commencing in June 1989, Mr. Patrick began working as an informant for State Patrol Officer Padukiewicz, who was then assigned to TNET (an interagency drug task force). This relationship ended November 2, 1989. Mr. Patrick was paid by the Tacoma Police Department and TNET for providing useful information. No law enforcement officer or prosecuting attorney had requested or directed that the defendant be placed in any particular unit in the jail. His placement in the same unit as Mr. Patrick was the result of coincidence, not design. The...

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