State v. Gregory

Decision Date30 November 2006
Docket NumberNo. 71155-1.,71155-1.
Citation147 P.3d 1201,158 Wn.2d 759
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Allen Eugene GREGORY, Appellant.

Suzanne Lee Elliott, David Zuckerman, Attorneys at Law, Seattle, WA, for Appellant.

Gerald Allen Horne, John Martin Neeb, Attorneys at Law, Kathleen Proctor, Pierce County Prosecuting Attorney Office, Tacoma, WA, for Respondent.

BRIDGE, J.

¶ 1 This case involves two consolidated appeals brought by Allen Eugene Gregory. In 2000, Gregory was convicted of three counts of first degree rape for the 1998 rape of R.S (rape case). In 2001, Gregory was convicted of the 1996 aggravated first degree murder of G.H., committed in the course of a rape and robbery (murder case). The jury in the murder case determined that there were not sufficient mitigating circumstances to merit leniency, and Gregory was sentenced to death. Gregory now appeals the convictions and sentences in both cases.

¶ 2 For reasons set forth below, we reverse the rape convictions, holding that the trial court abused its discretion when it declined to review in camera the dependency files of the victim's child for evidence relevant to Gregory's consent defense. Those files reveal information that we have determined would have been material to Gregory's defense, and nondisclosure was not harmless beyond a reasonable doubt. We find no other trial court error in the rape case. We further conclude that none of Gregory's arguments warrant reversal of the aggravated first degree murder conviction, and we affirm that conviction. However, we find that the prosecutor engaged in misconduct during closing arguments in the penalty phase of the murder trial. Because the rape convictions were relied upon in the penalty phase of the murder case and because we find that prosecutorial misconduct occurred in the penalty phase, we reverse the death sentence, and we remand to the trial court for resentencing in the murder case.1

I. Rape of R.S.
A. Rape Case Statement of Facts and Procedural History

¶ 3 In 2000, Gregory was convicted of three counts of first degree rape for the 1998 rape of R.S. R.S. testified that at about 1:30 a.m. on August 21, 1998, as she was walking home, she noticed a car that she thought belonged to a friend. She approached the car. The occupant, whom she later identified as Gregory, rolled down the window. When she discovered the driver was not her friend after all, R.S. explained, "`I thought you were somebody I knew.'" RRP at 2047. Gregory asked R.S. if she needed a ride home and after some hesitation, she accepted.

¶ 4 Instead of taking R.S. home, Gregory took her to a parking lot behind a nearby middle school. R.S. testified that he pulled out a knife and insisted that R.S. "give him what he wanted." RRP at 2052. She tried to escape but Gregory held her by the hair and held the knife to her side. R.S. testified that Gregory forced her to perform oral sex at knifepoint. He then put on a condom and vaginally raped her, holding the knife to her nose and threatening to cut it off. Afterward, R.S. noticed that the condom had broken. R.S. testified that she screamed and tried again to get out of the car, but Gregory punched her. Gregory then repeatedly forced her to have anal intercourse. Afterward, he opened the door and pushed her out of the car.

¶ 5 As Gregory pulled away, R.S. testified that she memorized his license plate number. She then ran to a convenience store for help. The police were called and R.S. was taken to the hospital. She reported that Gregory had told her that his name was Allen. She also described the car and gave the police the license plate number. She explained that as the rapes occurred, she tried to memorize details about the interior of the car, which had several distinctive features. R.S. did not get a good look at her assailant's face because she was turned away from him during most of the assault.

¶ 6 The hospital staff photographed R.S.'s injuries, including scratches and bruises to her arm, legs, and back, as well as bruises and welts on her head and face. They also took swabs from R.S.'s skin, vagina, anus, and mouth. Semen was collected from the vaginal swabs and a deoxyribonucleic acid (DNA) profile of the assailant was generated from that semen.

¶ 7 Detectives identified Gregory as the owner of the car whose license plate R.S. had memorized. Officers located the car and looked in from the outside to confirm the specific characteristics described by R.S. After doing so, they arrested Gregory.

¶ 8 Shortly after his arrest, Gregory denied ever having had any contact with R.S., claiming he had an alibi. Police obtained a warrant and searched Gregory's car, where they found a Buck knife and a condom. The condom had the same lot number and expiration date as a condom wrapper found in the parking lot where the incident occurred. The Washington State Patrol Crime Laboratory (WSPCL) also compared the rape kit seminal fluid with a sample of Gregory's blood and concluded that there was a DNA match. The chance of a random match in the African American population was 1 in 360 million.

¶ 9 Before trial, Gregory changed his defense to one of consent, asserting that he had indeed had sex with R.S., but the encounter was consensual. In aid of his new defense, he sought to introduce evidence of R.S.'s prior convictions for prostitution. However, the trial court concluded that her prior convictions for prostitution were too remote in time to be relevant and excluded them. Gregory then asked the trial court to conduct an in camera review of the Child Protective Services dependency files of R.S.'s children to determine whether the files contained any evidence of recent (and therefore relevant) evidence of prostitution. The trial court denied this request.

¶ 10 At trial, Gregory testified that R.S. had approached his car and offered to have sex with him for money. He testified that she willingly accompanied him to the middle school parking lot and that they engaged in consensual sex. He explained that R.S. became upset and demanded more money when she discovered that the condom had broken. When he refused, she became irate, and he told her to get out of the car. Gregory was never asked to provide, nor did he offer any explanation for R.S.'s injuries. The defense theory was that she accused Gregory of rape in retaliation.

¶ 11 The jury found Gregory guilty of three counts of rape in the first degree. At sentencing, the trial judge concluded that counts one (forced oral intercourse) and two (forced vaginal intercourse) were the same criminal conduct, but count three (forced anal intercourse) constituted separate criminal conduct. The sentences for counts one and two would be served concurrently, but the sentence for count three would be served consecutively. Gregory was also sentenced for a deadly weapon enhancement for each count. His sentence amounted to 331 months (27½ years) of total confinement. Gregory appealed both the rape convictions and his sentence.

¶ 12 After oral argument in this case, a majority of the court concluded that the trial court had erred by refusing to conduct in camera review of R.S.'s children's dependency court files. We issued an order remanding to the superior court for in camera review of the relevant dependency files that were pending at the time of the rape trial. The superior court entered findings of fact and conclusions of law finding that the dependency files of one child contained information relevant to the case. This court requested additional briefing from the parties as to whether the information revealed by the in camera review required reversal of the rape convictions. Such briefing has since been submitted to this court.

B. Rape Case Analysis
Evidence Excluded Pursuant to Washington's Rape Shield Statute

¶ 13 Gregory's theory of the case was that R.S. consented to oral and vaginal sex with him in exchange for money, but she demanded more money when she discovered that the condom had broken. When he refused, they argued and he kicked her out of his car; then, she fabricated the rape story to retaliate. Gregory asserts that he should have been allowed to present evidence of R.S.'s prior prostitution activities to support this theory. Washington's rape shield statute provides, in part:

Evidence of the victim's past sexual behavior including but not limited to the victim's marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim's consent except as provided in subsection (3) of this section. . . .

RCW 9A.44.020(2) (emphasis added). Subsection (3) provides that evidence of the victim's past sexual behavior (as described above) is admissible on the issue of consent only if specific procedural requirements are met. RCW 9A.44.020(3). The statute requires a written offer of proof that a victim's prior sexual history is relevant to the issue of consent. Then, if the trial judge finds the offer of proof to be sufficient, the court must order a hearing outside of the presence of the jury. RCW 9A.44.020(3)(a). At the conclusion of the hearing, if the court finds that evidence offered is relevant to the issue of the victim's consent, that its probative value is not substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice, and that its exclusion would result in denial of substantial justice to the defendant, the court is required to enter an order stating what evidence may be introduced by ...

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