In Re Stenson
1. The Washington Supreme Court erred in maintaining and providing to appellate counsel a database of aggravated murder cases, upon which both the parties and this Court relied for presentation of mandatory review appellate issues, which was incomplete and skewed in favor of death.
2. The Superior Court affirmatively misadvised Mr. Stenson about his right to allocution and thereby chilled his exercise of that right.
3. Appointed counsel for Mr. Stenson‘s first PRP lacked the credentials required by this Court‘s [Rules of Appellate Procedure].
4. The state erred in charging the vague, alternative, `concealment’ aggravating factor (then-RCW 10.95.020(7)), and the trial court erred in instructing the jury with its vague, alternative, terms.
5. The prosecution withheld material, exculpatory impeachment evidence concerning Washington State Patrol Crime Laboratory criminalist-witness Mike Grubb‘s methods and background.
Id. at 1.
The State of Washington moved to strike Stenson‘s petition on procedural grounds. It has, however, addressed the substance of Stenson‘s petition and asserts that it is without merit.
I
Because the facts underlying Stenson‘s convictions were extensively discussed in this court‘s decision affirming Stenson‘s convictions and sentence following his direct appeal, as well as in our decision denying Stenson‘s first personal restraint petition, our recitation of the facts is relatively brief. At the outset, we note that Stenson was charged in Clallam County Superior Court with two counts of premeditated first degree murder with aggravating circumstances. The State thereafter gave notice that it was seeking the death penalty.
Substantial evidence was produced at the trial which showed that at Dakota Farms in Clallam County in March of 1993, Stenson shot his wife, Denise Stenson, and his business associate, Frank Hoerner. The evidence also disclosed that Stenson, in a rather clumsy fashion, attempted to establish that Hoerner had shot Denise Stenson and then turned the murder weapon, a revolver, on himself. The physical evidence, in particular, undermined Stenson‘s effort to blame Hoerner for the murder of Denise Stenson and for what he claimed was Hoerner‘s suicide. Other evidence established that Stenson killed his wife in order to collect life insurance benefits and killed Hoerner to get out from under a debt he owed Hoerner and to cast blame on Hoerner for the murder of Denise Stenson.
A key witness at the trial was Michael Grubb, the supervising forensic scientist at the Washington State Patrol Crime Laboratory. He opined that some of the blood
At the conclusion of the guilt phase of the trial, the jury found Stenson guilty of the premeditated first degree murders of Denise Stenson and Frank Hoerner. The jury also concluded, in a special verdict form, that in the case of the murder of Denise Stenson “[t]here was more than one person murdered and the murders were part of a common scheme or plan or the result of a single act of the person.” Clerk‘s Papers (CP) at 363. The jury made an identical special finding relating to the murder of Hoerner and also found that “[t]he defendant committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime.” CP at 364.
Prior to the penalty phase of the trial, the trial judge advised Stenson on two separate occasions of his right to allocution. The judge also asked him if he wished to “speak to the jurors and exercise your right of allocution.” VRP (Aug. 17, 1994) at 367. Stenson declined. The jury subsequently concluded that there were no circumstances that mitigated against imposition of the death penalty. The trial court thereafter entered a judgment and sentence imposing the death penalty on Stenson for the murders of Denise Stenson and Frank Hoerner. As noted above, this court upheld Stenson‘s convictions and sentence on appeal and later denied his first personal restraint petition.
II
State‘s Motion to Strike
The State has moved to strike Stenson‘s personal restraint petition on grounds that the petition was (A) not properly served; (B) not properly verified; and (C) is a mixed petition. We discuss each contention.
A. Service of Personal Restraint Petition
Stenson did not serve this personal restraint petition on the Clallam County prosecuting attorney. Instead he filed it with the clerk of this court and served a copy of it upon the Office of the Attorney General. The attorney general subsequently furnished the Clallam County prosecutor with a copy of the petition. The State asserts that “[s]ervice on the Attorney General was insufficient.... [s]ince the prosecutor is the statutorily mandated party to the action.” Mot. to Strike Pet‘r‘s Pers. Restraint Pet. at 3. It contends that “to make the action viable and confer jurisdiction over the State, it was necessary that the prosecutor be served.” Id.
The statutes the State cites as support for its contention that Stenson must serve the prosecuting attorney of Clallam County with his petition are
B. Verification of the Petition
RAP 16.7(a)(6) provides thatIn all cases where the restraint is the result of a criminal proceeding and the petition is prepared by the petitioner‘s attorney, the petitioner must file with the court no later than 30 days after the petition was received by the court a document that substantially complies with the following form:
I declare that I have received a copy of the petition prepared by my attorney and that I consent to the petition being filed on my behalf.
The State alleges that Stenson did not comply with this rule and urges us to strike his petition. The record belies the State‘s contention. It reveals that Stenson signed a form indicating that he consented to having the personal restraint petition filed on his behalf. Significantly, Stenson‘s signed verification was received by the clerk of this court on January 11, 2002, less than thirty days after the personal restraint petition was filed by his attorney.
C. Is Stenson‘s Petition “Mixed“?
[t]he appellate court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances and if such relief may be granted under RCW 10.73.090, .100, and .130.2 No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown.
In its motion to strike, the State contends that one of Stenson‘s five claims, that the attorneys who represented Stenson on his first personal restraint petition lacked proper credentials, is not a claim which falls under any of the
Stenson responds to the State‘s argument by asserting that his claim regarding the credentials of his appellate counsel does not create the mixed petition described in Stoudmire because it “is not so much an independent claim as a reason for allowing the instant PRP to go forward.” Pet‘r‘s Opp‘n to Mot. to Strike Pers. Restraint Pet. at 8. Stenson notes that
[t]he `mixed petition’ rule enunciated in In re Stoudmire is rooted in the language of
RCW 10.73.100 . That statute provides in part, `The time limit specified inRCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds.’ What is a `ground’ for relief? It appears that this Court, following federal authority, has defined a `ground’ for relief as a claim concerning the legality of the `conviction,’ `sentence,’ or `restraint of petitioner.’ It is not an argument in favor of permitting a successor PRP. Thus, the `mixed petition’ rule does not even apply to that argument about prior PRP counsel‘s credentials and the permissibility of this successor PRP.
Id. at 9-10 (citations omitted). We are inclined to agree with Stenson on this point. As he observes, his claim relating to the credentials of his prior appellate counsel does not go to the merits of the petition. Instead it is offered as a reason to consider his second personal restraint petition.
The State does, however, contend that each of Stenson‘s substantive claims are barred by the time limit set forth in
In deciding this issue we focus on Stenson‘s claim that he is entitled to a new trial on account of what he contends is “newly discovered evidence” tending to discredit the testimony of Mike Grubb, the supervising forensic scientist at the Washington State Patrol Crime Laboratory. A claim based upon “newly discovered evidence” may be considered only when the petitioner establishes
“`that the evidence (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. The absence of any one of the five factors is grounds for the denial of a new proceeding.‘”
In re Pers. Restraint of Brown, 143 Wash.2d 431, 453, 21 P.3d 687 (2001) (quoting State v. Williams, 96 Wash.2d 215, 222-23, 634 P.2d 868 (1981)). A petitioner is not entitled to a new trial based upon “`newly discovered evidence‘” when that evidence is “`merely cumulative or impeaching.‘” Brown, 143 Wash.2d at 453, 21 P.3d 687.
In support of his argument, Stenson calls our attention to two cases in which the Court of Appeals concluded that Grubb‘s testimony for the State was not based upon a
Although Stenson asserts that this newly discovered evidence is not merely impeaching “but is also substantive after-the-fact,” he fails to develop an argument in support of that assertion. Pet‘r‘s Reply Br. at 39. Furthermore, the “newly discovered evidence” is immaterial. In State v. Kunze, 97 Wash. App. 832, 988 P.2d 977 (1999), review denied, 140 Wash.2d 1022, 10 P.3d 404 (2000), the issue before the court was whether the witness, Grubb, could opine, based upon the relationship among some of the anatomical features of the external ear, that the defendant was the probable and likely source of a latent earprint discovered at the crime scene. The court concluded there that such earprint identification was not generally accepted in the scientific community. Here, Grubb did not present earprint identification testimony. Thus, even if the evidence was not merely impeaching, it is clear that the evidence gleaned from Kunze would not serve any purpose at a hearing on remand. That being the case, this evidence cannot be said to be material. See, e.g., In re Pers. Restraint of Rice, 118 Wash.2d 876, 887, 828 P.2d 1086 (1992) (evidence is material only if there is a reasonable probability that, had it been disclosed, the result of the proceeding would have been different).
In State v. Dyer, noted at 86 Wash.App. 1015, 1997 WL 258483, review denied, 133 Wash.2d 1022, 950 P.2d 477 (1997), Grubb opined as to the age of semen deposits discovered in the vagina of a murdered woman. The appellate court concluded that the method he used in reaching his opinion was not generally accepted within the scientific community. Again, this evidence appears to be impeaching only. It is also not material because had it been known to Stenson, it would not have made a difference in his trial where semen age testimony was not presented.
The affidavit Grubb presented in a King County Superior Court case contained Grubb‘s opinion that another criminologist adhered to state crime lab office procedures in destroying a draft DNA (deoxyribonucleic acid) report in a case completely unrelated to Stenson‘s. Stenson seems to suggest that because this criminologist destroyed a draft DNA report in another case, Grubb must have destroyed evidence favorable to Stenson in this case. Stenson offers nothing to support this claim and, therefore, fails to show how this “evidence” would change the result of the proceeding.5
Moreover, in considering each of these alleged pieces of “newly discovered evidence,” we note that Stenson has never contended that Grubb‘s testimony in the instant case regarding the phenolphthalein tests and blood splatter analysis was not based upon a generally accepted method in the scientific community. Indeed, Stenson unsuccessfully challenged the admissibility of this testimony under ER 702 grounds on direct appeal, and he did not otherwise challenge the testimony. See Stenson I, 132 Wash.2d at 714-15, 940
A petition which relies upon
Because we recognize that Stenson could refile a petition or petitions raising any of the aforementioned claims that he believes are not barred by the one-year time limit of
III
Having concluded that Stenson‘s personal restraint petition is procedurally barred by the mixed petition doctrine discussed by this court in Stoudmire and Hankerson, we conclude that the State‘s motion to strike should be granted.
JOHNSON, MADSEN, SANDERS, IRELAND, CHAMBERS, JJ., and SMITH, J.P.T., concur.