State v. Gentry

• Decision Date: 06 January 1995
• Docket Number: No. 58415-0
• Citation: 125 Wn.2d 570,888 P.2d 1105
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Jonathan Lee GENTRY, Appellant.

Page 570

125 Wn.2d 570

888 P.2d 1105

STATE of Washington, Respondent, v.Jonathan Lee GENTRY, Appellant.

No. 58415-0.

Supreme Court of Washington En Banc.

Jan. 6, 1995.

Nance, Iaria & Gombiner, Robert Gombiner, Michael Iaria, Seattle, for appellant.

C. Danny Clem, Kitsap County Prosecutor, Brian T. Moran, Pamela B. Loginsky, Donald J. Porter, Deputies, Port Orchard, for respondent.

Gregory J. Wrenn, Seattle, Lawrance A. Edwards, Bothell, amici curiae, for appellant on Behalf of the American Civ. Liberties Union of Washington Foundation and on Behalf of Loren Miller Bar Ass'n.

Seattle-King County Public Defender, Jeff Ellis, Seattle, amicus curiae, for appellant.

Christine O. Gregoire, Atty. Gen., Leslie V. Johnson, Asst., Yakima, amicus curiae, for respondent.

Mark A. Panitch, Seattle, amicus curiae, for respondent on Behalf of Nat. Organization of Parents of Murdered Children.

FACTS OF CASE

ANDERSEN, Chief Justice.

DefendantJonathan Lee Gentry appeals his conviction and death sentence for the murder of a 12-year-old girl in Kitsap County.

The following is a summary of the facts that were developed during the 6-week trial and approximately 8 weeks of hearings on related motions.The facts pertinent to each issue raised by the Defendant are more fully set forth in the discussion of the various issues.

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 foot path 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 included ABO, gamma marker (GM), haptoglobin (Hp), DQalpha polymerase chain reaction DNA (PCR DNA), and phosphoglucomutase (PGM) testing.According to the State's experts, none of the tests performed on the bloodstains on Defendant's shoelaces eliminated the victim as the source of the blood.Since ABO, GM, haptoglobin and PCR DNA are genetically independent factors, the product rule ¹ was used to obtain a cumulative frequency showing the percentage of the population from which the blood found on the Defendant's shoelaces could have originated.(The PGM test was determined not to be definite enough to factor into the final statistical probability.)On the ABO test, one of the bloodstains was type O and the victim had type O blood.Type O blood is found in 44.5 percent of the Caucasian population.The GM testing showed that both of the shoelace bloodstains were type 1, 2, 3, 11 and victim also had type 1, 2, 3, 11.This type is found in 14 percent of the Caucasian population.The haptoglobin test showed one of the bloodstains on the shoelace to be Hp type "2" and the victim had type "2".Hp type "2" is found in 36.1 percent of the Caucasian population.There was expert testimony that the number of individuals having ABO type O and GM type 1, 2, 3, 11 and Hp type 2 would be 2.25 percent of Caucasians.The PCR DNA testing on the bloodstains on both shoelaces showed a PCR type of 1.2, 3 and the victim's type was also 1.2, 3.The frequency of occurrence of type 1.2, 3 is approximately 8 percent in both the Caucasian and African American populations.The forensic scientist who performed the PCR DNA testing testified that the percentage of the Caucasian population that would have type O blood with GM 1, 2, 3, 11 and Hp type 2 and PCR DNA of 1.2, 3 would be .18 percent.PCR testing was also conducted on a hair found in the victim's T-shirt which yielded a PCR 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 ² 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.

Shortly before the penalty phase of the proceeding began, the United States Supreme Court issued its ruling in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720(1991), holding that the admission of a victim impact statement into the penalty phase of a capital murder case was not per se unconstitutional.The trial judge in the present case determined that the victim's father could make a statement to the jury and that statement was considered in the jury's determination that there were not sufficient mitigating circumstances in the case to merit leniency.DefendantJonathan Lee Gentry received a sentence of death.

Nineteen basic issues are presented by this appeal.

GUILT PHASE ISSUES

ISSUE ONE....