          FILE
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                                          :··




        IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  In the Matter of the Personal Restraint of
                                                                              NO. 86585-0
  JONATHAN LEE GENTRY,                                                        ENBANC
                                                Petitioner.                   Filed       JAN 2 3 2014

                  STEPHENS, J.-Jonathan Lee Gentry was convicted in 1991 of the

   aggravated first degree murder of 12-year-old Cassie Holden and sentenced to

   death by a jury. Gentry is African American and Holden was white. Gentry's

   direct appeal before this court was unsuccessful. State v. Gentry, 125 Wn.2d 570,

   888 P.2d 1105 (1995). One of the issues he raised there was a claim that the
   decision to pursue a capital case against him, and the trial that ensued, was unfairly

   tainted by the specter of racial bias on the part of the prosecution. !d. at 609. We
   rejected that contention, concluding in part that Gentry had not shown prejudice

   resulting from any misconduct.                           Our recent decision in State v. Monday, 171

   Wn.2d 667, 257 P.3d 551 (20 11 ), makes it clear, however, that when a party shows

   prosecutorial misconduct based on racial bias, it is the State's burden to show
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




harmlessness beyond a reasonable doubt. Gentry brings this personal restraint

petition in light of Monday.
      While we believe the rule in Monday is critically important to our justice

system, we conclude it does not qualify as a "watershed" rule that can be applied

retroactively under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d

334 (1989). Nevertheless, because of the gravity of the punishment and the claims
here, we wish to stress that even if Gentry's claims were not procedurally barred,

they would still fail under the standard imposed by Monday because Gentry cannot

demonstrate prejudice to merit relief on collateral review. We therefore dismiss

his personal restraint petition. 1

                                        FACTS

       The facts of this case are well known and were summarized in this court's

decision on Gentry's direct appeal.

              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 footpath 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

       1
        In addition to his personal restraint petition, Gentry filed a motion to reconsider
pursuant to RAP 2.5( c)(2). The motion is more aptly described as a motion to recall the
mandate and is based on the same grounds as Gentry's petition.

                                            -2-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0



      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
       [tests matched the blood to Holden's type; 0.18% percent of the population
       would have this type .... ] [T]esting was also conducted on a hair found in
       the victim's T-shirt which yielded a PCR [(polymerase chain reaction)]
       type of 1.2, 1.2, which is not the same as the Defendant's type, but does
       match his brother's type.
               A [State v.] Frye[, 54 App. D.C. 46, 293 F. 1013 (1923)] 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 B.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,

                                           -3-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0



      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 B.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 Me Williams 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.

Gentry, 125 Wn.2d at 579-82.          This court affirmed Gentry's conviction and

remanded for issuance of a death warrant. !d. at 658. The court also rejected a

subsequent personal restraint petition. In re Pers. Restraint of Gentry, 137 Wn.2d

378, 972 P.2d 1250 (1999).

       Gentry filed this personal restraint petition in October 2011. On October 10,

2012, Gentry filed a motion to ask that this court set oral argument or alternatively


                                           -4-
In re Pers. Restraint of Jonathan L. Gentry, 86585-0




remand for supplementation of the record or reference hearing in light of State v.

Davis, 175 Wn.2d 287, 362-73, 290 P.3d 43 (2012). We denied Gentry's motion

to supplement or remand in light of Davis and struck the portions of his briefing

dealing with Davis. 2 We granted his request for oral argument. Amici curiae

American Civil Liberties Union, American Civil Liberties Union of Washington

(hereinafter ACLU), and NAACP Legal Defense and Educational Fund Inc. filed

briefs in support of Gentry. 3

                                      ANALYSIS

       Gentry claims the prosecution engaged in race-based misconduct tainting his

conviction in the following ways: (1) by making an out-of-court racially offensive

       2
          The dissent is concerned that our decision to deny Gentry a remand for a
reference hearing in light of Davis means we have sidesteped our duty under RCW
10.95.130(2)(b) to conduct a proportionality review in every capital case. Dissent at 1.
But Gentry received his proportionality review on his direct appeal. Gentry, 125 Wn.2d
at 654-58.      Nothing in RCW 10.95.130(2)(b) requires this court to consider
proportionality anew each time an inmate on death row files a personal restraint petition.
It certainly does not allow us to circumvent the one year time bar on personal restraint
petitions and engage in a proportionality review premised on an otherwise untimely
petition.
        3
          In his response to the briefs of amici, Gentry appended a letter from the
Department of Justice that was sent to a district attorney's office in Mississippi. The
letter included assertions about the scientific validity of microscopic hair comparison
analysis. The State moved to strike the appendix, arguing that the letter falls outside the
scope of the record and has little relevance. We passed the motion to strike to the merits,
and grant it now. The State is correct that the appendix is an improper addition to the
record on review. Having granted the State's motion, we need not consider a later
motion filed by the State seeking to supplement the record with postconviction DNA
(deoxyribonucleic acid) evidence, which it claims rebuts the letter.
        Likewise, in the course of rendering this opinion, we also do not consider any
statistical-based claims made by the parties or amici about the efficacy of the death
penalty. Those claims fall outside the scope of the only claim that can overcome the one-
year time bar on collateral attack, namely Gentry's claim of race-based prosecutorial
conduct premised on our Monday decision. See infra 28-29.

                                            -5-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




comment to Gentry's African American counsel; (2) by offering the testimony of a

white witness who used the word "nigger" several times and made other racially

inflammatory remarks; (3) by offering the testimony of white witnesses who stated

that Gentry had referred to the victim as a "bitch," a word that was then repeated
several times by the prosecutor in closing; (4) by making numerous statements that

focused on physical evidence described as having "Negroid characteristics;" and

(5) by suggesting, through argument and the presentation of evidence, that the

killer was black and that Gentry was therefore the killer because he is black.

Gentry emphasizes that these instances of misconduct must be considered against

the backdrop of the crime at issue-a racially inflammatory scenario in which an

African American man is accused of murdering a white girl. He also argues that

these instances must be viewed in light of the circumstances under which Gentry

was charged and tried: Gentry was sentenced by an all-white jury in a courtroom

presided over by a white judge; as an African American, Gentry is the only

defendant from Kitsap County who is on death row for aggravated murder; and

African Americans constitute a disproportionate number of inmates on

Washington's death row.

       Gentry's arguments implicate our holding in Monday. There, the prosecutor
made a number of racially charged remarks throughout the trial of Kevin L.

Monday on charges of first degree murder and assault. Monday and most of the

lay witnesses called were African American. Among other things, the prosecutor

suggested that the African American witnesses could not be believed because of a


                                           -6-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




'"code"' on the street that "'black folk don't testify against black folk."' Monday,
171 Wn.2d at 674 (quoting Verbatim Report of Proceedings (VRP) at 29-30). He
also mimicked African American witnesses,               saying "'po-leese"' during
questioning and audibly expressing his disbelief at a witness's answer. Id. at 671-
72. We held that the defendant met his burden of proving the prosecutor's actions
were improper. Id. at 678. But we departed at that point from our previous
requirement that the defendant also show prejudice stemming from the
prosecutorial misconduct. Once the showing of misconduct is made, we held in

Monday, the burden shifted to the State to show the race-based misconduct was

harmless beyond a reasonable doubt, i.e., that it is beyond a reasonable doubt that
the conduct did not affect the jury's verdict. Id. at 680. In Monday, the evidence
that the defendant had committed the crime at issue was quite strong. 4 But, the
prosecutor's misconduct was so pervasive that nearly every witness's testimony
was tainted by it. Under those circumstances, we held that the State could not
make the harmlessness showing. Id. at 681.            Despite the strong evidence of
Monday's guilt, the taint of the improper conduct pervaded the trial, making it

impossible to say whether the jury could have come to a conclusion not influenced

by racial bias.
       In light of Monday, Gentry maintains that his allegations of racial bias
should be reviewed anew. We must therefore first address whether Gentry can

       4
         The defendant told police during questioning that he had not meant to kill the
victim, and there was a videotape of the event showing the defendant to be the shooter.
Monday, 171 Wn.2d at 670, 680 n.4.

                                           -7-
In re Pers. Restraint of Jonathan L. Gentry, 86585-0




benefit from the rule in Monday. This requires consideration of whether Monday

qualifies as a change in the law that justifies Gentry's late-filed petition and

whether the rule of Monday may be applied retroactively.

       1. Is Gentry's personal restraint petition procedurally barred?
       Because Gentry's judgment and sentence became final several years ago, he

is outside the one-year period for collaterally attacking a conviction. This court
may review an untimely filed petition only if one of the exceptions to the time bar

set forth in RCW 10.73.100 is present. Here, Gentry argues that his petition falls

under RCW 10.73.100(6), which excuses late filings where

       [(1)] [t]here has been a significant change in the law, whether substantive or
       procedural, which is [(2)] material to the conviction, sentence, or other
       order entered in a criminal or civil proceeding instituted by the state or local
       government, and [(3)] either the legislature has expressly provided that the
       change in the law is to be applied retroactively, or a court, in interpreting a
       change in the law that lacks express legislative intent regarding retroactive
       application, determines that sufficient reasons exist to require retroactive
       application of the changed legal standard.

RCW 10.73.100(6); Pers. Restraint Pet. at 18-20.

       a. Does the rule in Monday present a significant, material change in the law
          satisfying RCW 10.73.090?

       The State argues that Monday cannot be applied retroactively, relying on the

retroactivity analysis set forth in Teague, 489 U.S. 288. Resp. to Pers. Restraint
Pet. and Mot. to Reconsider Appeal (Response) at 46. Gentry asserts that Teague's

retroactivity analysis need not dictate how RCW 10.73.100 is interpreted and

applied. Gentry claims that "post conviction review may be available under state




                                             -8-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




law where it would not be under federal law." Pet'r/Appellant's Reply Br. (Reply)

at 2.

        The State and Gentry at times conflate the two-fold nature of this question.

RCW 10.73.100(6) sets forth three conditions that must be met before a petitioner

can overcome the one-year time bar: (1) a substantial change in the law (2) that is

material and (3) that applies retroactively. Gentry is likely correct that Monday

constitutes a significant change in the law, material to his conviction, thus excusing

the late-filed petition under RCW 10.73.100(6). The State does not seriously

debate that point. See Response at 4 7 (conceding that Monday announces a new

rule); see also Monday, 171 Wn.2d at 680 (explaining that the decision was

charting a new course in the endeavor to prevent prosecutorial misconduct because

"past efforts to address prosecutorial misconduct have proved insufficient to deter

such conduct"). 5 But retroactivity is a distinct question. See In re Pers. Restraint

of Vandervlugt, 120 Wn.2d 427, 435-36, 842 P.2d 950 (1992) (recognizing
separate inquiries as to whether a rule is a change in the law and whether it may be

applied retroactively); In re Pers. Restraint of Taylor, 105 Wn.2d 683, 689, 717

P.2d 755 (1986) (noting that a recent case constituted a change in the law, leaving

the remaining issue as to whether the case could be applied retroactively). Because
Gentry's petition, insofar as the State responds to it, thus far satisfies RCW

 10.73.100(6), we proceed to the retroactivity inquiry.

        5
         In the absence of any debate from the parties on this point, we save for another
day the question of what constitutes a "material" change in the law for purposes of the
statute.

                                           -9-
In re Pers. Restraint of Jonathan L. Gentry, 86585-0




      b. May this court apply the rule in Monday retroactively to Gentry's case?

      A material change in the law does not necessarily mean a defendant whose

judgment was final at the time the change was announced gets the benefit of that

change. That is what a retroactivity analysis seeks to address. We have generally

adhered to the test announced in Teague to determine questions of retroactivity.

As we explain below, the rule in Monday does not meet the Teague test. But given

the grave nature of the punishment at stake here, Gentry's claim that this court

need not be bound by Teague deserves careful consideration, and we begin with

that discussion.

              ( 1) Is the court bound by the Teague analysis?

       There is some support for Gentry's assertion that this court need not be

bound by Teague. The United States Supreme Court has suggested as much. In

Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008),

the court explained:

              It is thus abundantly clear that the Teague rule of nonretroactivity
       was fashioned to achieve the goals of federal habeas while minimizing
       federal intrusion into state criminal proceedings. It was intended to limit the
       authority of federal courts to overturn state convictions-not to limit a state
       court's authority to grant relief for violations of new rules of constitutional
       law when reviewing its own State's convictions.

I d. at 280-81; see Reply at 6 (citing Danforth).

       Gentry appears to advocate for an analysis that looks to whether the "ends of

justice" are served by allowing retroactive application of a new rule. See Reply at

2 (citing Vandervlugt, 120 Wn.2d 427). However, Vandervlugt does not set forth a



                                            -10-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




clear alternative to Teague. There, this court considered whether an intervening
change in the law qualified as a material change. Deciding that it was material,
and therefore overcame one of the hurdles in RCW 10.73.100, the court then
considered whether the new rule had retroactive effect. At that point, however, the
court determined the rule in question was not "new" because it flowed from a
decision interpreting the meaning of a statute, which is '"what the statute has
meant since its enactment."' Vandervlugt, 120 Wn.2d at 436 (emphasis omitted)
(quoting In re Pers. Restraint of Moore, 116 Wn.2d 30, 37, 803 P.2d 300 (1991)).
In other words, a rule may be a material change in the law, but still not be a "new"
rule for the purposes of Teague.           Vandervlugt thus declined to apply any

retroactivity test, Teague or otherwise.
       Gentry also relies on Taylor, 105 Wn.2d 683, which Vandervlugt cites.
Taylor does use a different test than the one advanced in Teague. Taylor, 105

Wn.2d. at 690-92. But it also predates Teague by several years, so it cannot, alone,
be viewed as providing an alternative to Teague.        There is still no published
Washington case that departs from Teague in light of Danforth, and Gentry's
briefing does not provide such an analysis. We therefore analyze the retroactivity
question presented in this case under the Teague analysis we have relied on to date.
              (2) Under Teague, is the rule in Monday retroactive?
       We first adopted the Teague test in In re Personal Restraint of St. Pierre,
118 Wn.2d 321, 327, 823 P.2d 492 (1992). Since St. Pierre, we have often looked
to Teague to guide us in determining whether a new rule may be applied


                                           -11-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




retroactively. See In re Pers. Restraint ofJackson, 175 Wn.2d 155, 283 P.3d 1089

(2012); In re Pers. Restraint of Scott, 173 Wn.2d 911, 271 P.3d 218 (2012); State

v. Kilgore, 167 Wn.2d 28, 216 P.3d 393 (2009); In re Pers. Restraint of Hinton,

152 Wn.2d 853, 100 P.3d 801 (2004).
      Under Teague, if a rule is new, as it is agreed that the rule from Monday is,

then it will have retroactive application in one of two instances. It must either be a

substantive rule that places certain behavior "'beyond the power of the criminal

law-making authority to proscribe'" or a watershed rule of criminal procedure

'"implicit in the concept of ordered liberty.'" Teague, 489 U.S. at 311 (internal

quotation marks omitted) (quoting Mackey v. United States, 401 U.S. 667, 692-93,

91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971)). Recognition of such procedural rules is

limited to "those new procedures without which the likelihood of an accurate

conviction is seriously diminished." Id. at 313.

       Teague presents a very high hurdle to overcome. In announcing watershed

rules, courts have been sparing to the point of unwillingness. See In re Pers.
Restraint of Markel, 154 Wn.2d 262, 269 n.2, 111 P.3d 249 (2005) (noting that in

review of 11 claimed watershed rules, the United States Supreme Court had yet to

declare any a watershed rule triggering retroactivity). The United States Supreme
Court has cited the rule announced in Gideon v. Wainwright, 6 guaranteeing the

right to counsel for criminal defendants, as an example of a watershed rule of

criminal procedure, though the decision in Gideon predated Teague by several

       6
           372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

                                             -12-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




years. Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed. 2d 415

(1990). But the United States Supreme Court has stopped short of recognizing any

other instance of the type of rule it discussed in Teague. Likewise, we have yet to

announce such a rule, though we have several times concluded a rule does not meet

the Teague requirements.         See Markel, 154 Wn.2d at 273 (holding the rule

announced in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.

2d 177 (2004), is not a watershed rule of criminal procedure); State v. Evans, 154

Wn.2d 438, 447-48, 114 P.3d 627 (2005) (same with regard to Apprendf and

Blakely8 rules).

       On the other hand, federal lower courts have found some rules to apply

retroactively.. Notably, in Hall v. J(elso, 892 F.2d 1541, 1543 n.l (11th Cir. 1990),

the Eleventh Circuit explained that

       a burden-shifting error would be subject to retroactive correction on habeas
       review because not only is it a "bedrock, 'axiomatic and elementary'
       [constitutional] principle," Yates v. Aiken, 484 U.S. 211, 108 S. Ct. 534,
       536, 98 L. Ed. 2d 546 (1988) (quoting Francis v. Franklin, 471 U.S. 307,
       105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985) (quoting In re Winship, 397 U.S.
       358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970))), but it is also an error that
       diminishes the "likelihood of an accurate conviction." Teague, [489] U.S. at
       [290], 109 S. Ct. at 1077 (plurality).

       Monday does announce a new burden-shifting rule, though this rule speaks

to the harmless error analysis and does not involve a burden going to an element of

a crime, as Hall considered. See Hall, 892 F.2d at 1542. But there is no doubt that


       7
           Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).
       8
           Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

                                            -13-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




the Monday court considered the possible taint of racial bias in a criminal trial to

be of extremely grave concern affecting the legitimacy of the jury's verdict.

             The notion that the State's representative in a criminal trial, the
      prosecutor, should seek to achieve a conviction by resorting to racist
      arguments is so fundamentally opposed to our founding principles, values,
      and fabric of our justice system that it should not need to be explained.
      [Intentional appeals to racial bias by the prosecution are] so repugnant to
      the concept of an impartial trial that its very existence demands that
      appellate courts set appropriate standards to deter such conduct.

Monday, 171 Wn.2d at 680. Such language underscores the importance of the rule

announced in Monday to our criminal justice system. Other states have similarly

indicated that the specter of race-based prosecutorial misconduct shakes the very

foundation of a fair system of justice, suggesting that a rule such as we announced

in Monday may qualify as a watershed rule. See, e.g., Samaniego v. State, 679

N.E.2d 944, 949-50 (Ind. Ct. App. 1997) (explaining that race-based prosecutorial

misconduct may amount to a fundamental error depriving the defendant of a fair

trial); Commonwealth v. Tirado, 473 Pa. 468, 473, 375 A.2d 336, (1977) (noting

that "[a]ppeals to racial or religious prejudice are especially incompatible with the

concept of a fair trial because of the likelihood that reason will be dethroned and

that bias and emotion will reign"); State v. Cabrera, 700 N.W.2d 469, 475 (Minn.

2005) (observing that prosecutor's race-based misconduct undermined prosecutor's

obligation to ensure that the defendant received a fair trial).

       Nonetheless, we cannot avoid the fact that the Teague analysis almost never

results in retroactive application of a rule of criminal procedure. We have not

found, nor has Gentry presented, any case that retroactively applies a close enough


                                          -14-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




analog to the rule in Monday. Teague itself involved claims of racial bias under

Batson v. J(entucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and the

court recognized the Batson rule did not apply retroactively. Teague, 489 U.S. at

295-96 (citing Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878, 92 L. Ed. 2d 199

(1986) and Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601

(1965)).   Following Teague, we cannot conclude that the rule announced in

Monday applies retroactively.

      While this conclusion answers the central question in this case, it is

important to recognize that Gentry's claim arises on collateral review. We are

mindful that a retroactive application of the Monday rule in the context of a

personal restraint petition would still require the petitioner to demonstrate actual

and substantial prejudice arising from race-based misconduct at trial. In re Pers.

Restraint of Hagler, 97 Wn.2d 818, 825-27, 650 P.2d 1103 (1982).                  As an

institution firmly committed to justice in substance, not merely name, we feel it is

important to further consider whether the misconduct at Gentry's trial resulted in

actual and substantial prejudice. Such an inquiry fulfills our constitutional duty to

ensure that a sentence of death is not the result of improper racial prejudice.

       2. Has Gentry shown actual and substantial prejudice entitling him to relief
          on this personal restraint petition?

       As noted, proof of reversible error under this court's decision in Monday

requires a finding of race-based misconduct and a finding that such misconduct

was not harmless beyond a reasonable doubt. 171 Wn.2d at 680. We first consider



                                          -15-
In re Pers. Restraint of Jonathan L. Gentry, 86585-0




whether Gentry has established race-based misconduct and then consider whether

he has shown prejudice, viz., the absence of harmless error.

       a. Has Gentry shown improper race-based conduct on the part of the
          prosecutor?    ·

       Misconduct occurs when the State's action is both improper and prejudicial.

State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009); State v. McKenzie, 157

Wn.2d 44, 52, 57, 134 P.3d 221 (2006).             We do not review allegations of

misconduct in isolation, but in the context of the trial as a whole. McKenzie, 157

Wn.2d at 52. Gentry alleges several specific instances of misconduct, most of

which were considered by the court in Gentry's direct appeal. We now examine

the conduct through the lens of Monday.

              ( 1) Out-of-court comment by prosecutor to Gentry's counsel

       The events surrounding this alleged instance of prosecutorial misconduct are

detailed in an oral ruling from Judge Karen Strombom, who was appointed to

decide a motion Gentry brought to disqualify the Kitsap County Prosecuting

Attorney's Office in the wake of the comment. Judge Strombom first noted that

"[b]y the end of February 27th, 1991, there was an extremely tense atmosphere in

the courtroom, particularly between the attorneys." Suppl. VRP at 424-25 (Decl.
of Timothy K. Ford, Ex. 16). The lead attorneys involved were Gentry's counsel,

Jeffrey Robinson, and Kitsap County Prosecutor C. Danny Clem.               Prior to

February 27, allegations of unethical behavior had been made against the State. Id.

at 425. As Judge Strombom explained, on February 27, 1991, the third day of a



                                           -16-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




contentious Frye9 hearing was winding down. After proceedings ended for the

day, Robinson approached Clem to inquire about the witness list for the next day.

Id. Clem refused to disclose the witnesses and a verbal altercation ensued, though

the exact language of the argument was disputed. It is undisputed, however, that as
Robinson walked away from Clem, Clem called after Robinson, "Where did you

learn your ethics? In Harlem?" !d. at 425-26.

       The "Harlem comment" forms the basis of one of Gentry's claims of race-

based prosecutorial misconduct.             This court has already concluded that the

comment was "racially offensive" and "totally inappropriate." Gentry, 125 Wn.2d

at 610.
                   (2) Use of race-based language

       Gentry claims the capital proceeding against him was "steeped in race."

Pers. Restraint Pet. at 12. He argues that racially charged language was used in an

attempt to evoke race-based prejudices on the part of the jury. He takes issue with

the use of the word "nigger" by a witness and the use of the word "Negroid" by

prosecutors.

                          (a) Use ofthe word "nigger"

          One of the witnesses who testified against Gentry was jailhouse informant
Brian Dyste. As he does now, Gentry took issue with Dyste's testimony on direct

appeal before this court.



          9
              Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).

                                                -17-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0



             The jailhouse informant in question had told police that he and the
      Defendant were incarcerated at the Kitsap County Jail and were playing a
      "nigger" card game when the Defendant left the room to provide hair
      samples to police investigators. When he returned to the card game, the
      Defendant allegedly said, "They found my hairs on the bitch". During
      direct examination, the prosecuting attorney questioned the informant about
      his use of the word "nigger" and about his attitude toward African
      Americans.

Gentry, 125 Wn.2d at 611. Gentry points to this testimony, and the prosecutor's

handling of it, to support his assertion that the prosecution's case was "steeped in

race," to his detriment. Pers. Restraint Pet. at 12. But we have already concluded

that in this instance, the prosecutor's conduct was not improper.

       The State's questioning of the informant appears to have been a strategic
       attempt to soften the impact of apparent racist attitudes by bringing them
       out on direct examination, rather than waiting for defense counsel to expose
       them on cross examination. That is an accepted trial tactic. The questions
       do not appear to have been asked in order to evoke racial prejudices in the
       jury.... If anything, the State's examination of this witness appears to have
       made him a less credible witness.

Gentry, 125 Wn.2d at 611. Nothing in Monday compels us to retreat from this

conclusion, and Gentry offers no additional evidence that alters it.               As we

concluded in 1995, while anyone's use of the word "nigger" is repugnant, there

was nothing improper about the State's presentation ofDyste's testimony.

                     (b) Use of the word "Negroid"

       At certain places in his briefing, Gentry also appears to bolster his assertions

of racially based prosecutorial misconduct by citing to the prosecution's use of the

word "Negroid." See Pers. Restraint Pet. at 12 (noting 254 explicit references to

race in the trial transcript with use of the words "black," "nigger," or "Negroid").

At trial, the State frequently referred to some forensic evidence as having


                                           -18-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




"Negroid" characteristics, such as hair samples.            The State points out that

'"Negroid"' is not a racist term but a term of art used in the forensic hair analysis

community." Response at 64. The prosecution's use of the word does not in any

way appear to be an appeal to race-based prejudices, and we reject the claim that it

was improper. 10 Gentry has not shown an improper use of race-based or pejorative

language at trial by the State.

             (3) Prosecutor's closing argument

      Aside from Dyste, another jailhouse informant testified that Gentry had

referred to the victim as "a bitch." Response at 34. The prosecutor repeated this

phrasing several times in closing during the penalty phase, attributing it to Gentry.

Gentry argues that "[i]In the late 1980s, the word 'bitch' was strongly associated

with negative stereotypes of African American men and 'gangsta rap."' Pers.

Restraint Pet. at 14-15. Thus, he argues, the prosecution's repeated use of the

word "bitch" in closing is the type of '"careful word[] here and there [that] can

trigger racial bias"' we found so repugnant in Monday. Id. at 24 (quoting Monday,

171 Wn.2d at 678).


       10
          The brief of amicus curiae NAACP Legal Defense and Education Fund Inc.
(NAACP) (Br. of NAACP) argues that the scientific evidence suggesting hair can come
from a particular racial group has been debunked. Br. of NAACP at 16 n.22. Gentry
adopts this argument. Pet'r's Resp. to Amicus Curiae Brs. of NAACP and ACLU (Resp.
to Amici) at 1-2. If Gentry's conviction was based on faulty science, this is of course
troubling. But Gentry's argument in this petition concerns race-based prosecutorial
misconduct, not new or insufficient evidence. At the time of the trial, there was no
challenge to the science describing the hair as "Negroid," and thus it is difficult to see
how it was improper, let alone indicative of racial bias, for the prosecution to rely on it.
See Gentry, 125 Wn.2d at 581 (explaining that the trial court found, following a Frye
hearing, that the science was reliable).

                                           -19-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




      The State responds that there is nothing in the prosecutor's use of the word

"bitch" that is meant to evoke race-based prejudices.        Instead it was used to
"highlight Gentry's callousness and misogyny." Response at 69.
      We cannot conclude that the prosecutor's use of the word "bitch" on several
occasions was used for the purpose of triggering race-based bias. In Monday, we
found improper conduct when a white prosecutor repeatedly pronounced "police"
as "po-leese" while questioning African American witnesses, employed an

incredulous tone during questioning, and suggested in his closing argument that
African American people are liars. 171 Wn.2d at 679. It was clear from the record
there that the prosecution's strategy rested, in part, on discrediting black witnesses

on the basis of their race. Here, the evidence suggested Gentry had referred to
Holden as a bitch. Acknowledging that term's association with African American
urban culture in the late 1980s, it was not improper for the prosecutor to highlight

the defendant's use of a derogatory term about his victim, regardless of their
respective races. The record does not suggest that the prosecutor's decision to
bring that point to the jury's attention on repeated occasions reflected racial bias.
We need not consider whether such behavior amounted to prosecutorial
misconduct under Monday because it was not improper.
       In closing on the penalty phase, the prosecutor also made reference to the

Biblical story of David and Goliath. As he did on direct review, Gentry argues that
this was improper race-based argument. He renews his argument on the ground
that under direct review, this court rejected his claim after erroneously imposing


                                          -20-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




the burden of prejudice on him. But on direct review, this court concluded that the

prosecutor's remarks about David and Goliath were neither improper nor

prejudicial.

              The Defendant argues that the State's reference to the Biblical story
      of David and Goliath was intended to evoke racist feelings. The Defendant
      claims that the use of the David and Goliath analogy evokes an image of
      the outsider from another tribe killing a member of the "children of Israel".
      In our view, this is a tortured interpretation of the use of this Biblical story.
              Instead, the rebuttal here was invited or provoked by defense
      counsel's extensive use of Biblical stories during his own closing argument.
      In any event, if the remark was prejudicial at all, it was not so prejudicial
      that it could not have been cured with a cautionary explanation to the jury,
      had one been requested.

Gentry, 125 Wn.2d at 644 (emphasis added). As noted, Monday does not disturb

our conclusion regarding the propriety of the conduct. As we did in 1995, we

conclude that there was nothing improper in the prosecution's reference to the

David and Goliath story.

               (4) Presentation of evidence and focus on Gentry as the killer

       Gentry also argues that the prosecution's presentation of the evidence

showed an improper focus on race. Pers. Restraint Pet. at 22-24. This argument is

closely related to Gentry's contention that race drove law enforcement's suspicion

of Gentry, i.e., that the evidence did not point to Gentry so much as to an African

American man.        As in Monday, claims Gentry, the prosecution "resorted to

'generalizations about racial ... groups in order to obtain [a] conviction[]."' Pers.

Restraint Pet. at 23 (citing Monday, 171 Wn.2d at 683 (Madsen, C.J., concurring)).

These two arguments require consideration of the evidence against Gentry, most of

which was discussed in Gentry's direct appeal.

                                            -21-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




        First, three witnesses placed Gentry in the immediate vicinity of the murder.
See Gentry, 125 Wn.2d at 581. Fred Buxton had been mountain biking around the

time of the murder in the area Holden was killed. After reading about her death in
the newspaper three days after it happened, he recalled seeing an individual on the
trail who had seemed out of place. The individual was oddly dressed for the
weather, in a long coat or shirt open at the front, and wearing a distinctive hat. It
turned out Buxton had seen this person about 40 yards from where Holden was
killed, possibly minutes after the murder.        He called police and provided a

composite sketch.     He later identified Gentry out of a photomontage.        Eilene
Starzman contacted police after she saw the composite sketch of the suspect. She
and her daughter recalled seeing a similar-looking man near the scene of the crime
around the time the murder was believed to have taken place. Her description of
the person's clothing was similar to Buxton's description, including the distinctive
hat.    After talking with police and believing the suspect might live in her
neighborhood, Starzman began talking with neighbors and eventually located
Gentry's home. Police subsequently apprehended him.
        In addition to eyewitness accounts placing Gentry near the scene of the
crime, the State recovered several hair strands from the body. A pubic hair that
likely came from a Caucasian individual was found on Holden's left thigh.
Another hair, red-pigmented and likely of Caucasian origin, was found on her
shoe.     Finally, two hairs containing Negroid characteristics were found on
Holden's t-shirt, which she had been wearing at the time of her murder under a


                                          -22-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




sweatshirt; the hairs were tucked between the sweatshirt and the t-shirt. When
tested, both hairs were a type match for the hair of Gentry's brother, Edward.
Approximately six percent of the black population would have hair of that type.
Gentry's brother was at sea at the time of the murder and was not a suspect. But,
the State also presented evidence that Gentry had been wearing clothing borrowed
from his brother at the time of the murder. And, Holden and Gentry did not know
each other, nor did she know Gentry's family.

       Finally, a pair of Gentry's shoes were found to have been spattered with
blood, and then cleaned. The blood spatter testing revealed that the blood matched
Holden and could have come from only 0.18 percent of Caucasians. Gentry, 125

Wn.2d at 581.
       It is true that the State made many references to race in the trial. But these

were legitimately tied to the physical and circumstantial evidence pointing to

Gentry as the killer.     For example, the State's repeated references to racial
characteristics during testimony concerning the hair samples were appropriate. It
is true that the State offered no explanation for the Caucasian pubic hair. But a
hair matching hair from Gentry's brother was found on Holden's body. Given that
Gentry was seen in the area at the time of the murder, and that blood matching
Holden's was found on Gentry's shoes, it hardly seems improper for the State to

have discussed the racial characteristics of the hair samples when the prime suspect
was African American. And given that the sample would have matched only six
percent of the African American population, it hardly seems improper for the State


                                          -23-
In re Pers. Restraint of Jonathan L. Gentry, 86585-0




to ask questions designed to exclude other sources of the hair, especially because

individuals easily shed and pass on hair strands. See Response at 39 (discussing

questions at trial that detailed the lack of viable sources for the hair other than

Gentry, i.e., that Holden's family did not utilize laundromats, that Holden had not

played with any African American children since arriving from Pocatello, Idaho,

two days before her murder, and that no one who had contact with Holden's body

after it was discovered was African American). 11

       Gentry takes issue with the State's attempt to narrow the umverse of

Holden's association with persons of color to Gentry. He asserts that the State's

belief "that a black man committed the crime is based on its factually

unsupportable claim that Cassie and her family did not associate with black

people." Reply at 11. Gentry points to the State's questioning regarding Holden's

contacts with black children in the days before her murder, asserting that the State

incorrectly suggested Holden had no association with black playmates before she

died. On this point, it appears Gentry may be correct.

       The State concedes its presentation suggested that Holden had no association

with persons of color in the days before her death. Response at 39 (citing 52 VRP

3665, 3693-94, 3703, 3714). But in fact, police records reveal that Holden had a

brief conversation with an African American child, her brother's friend Tyler, in

the outdoor common area of their apartment complex the night before her murder,


       11
         Samples were taken from Holden's mother and her brother Jamie to test against
hairs found at the crime scene.

                                           -24-
In re Pers. Restraint of Jonathan L. Gentry, 86585-0




where a number of children were gathered. Decl. of Timothy K. Ford, Ex. 9 (Decl.

of Jennifer Davis, Ex. B, June 14, 1988 Interview with Jamie Holden at 3). And, it

is true that police records also reveal Holden's brother, Jamie, invited African

American children besides Tyler into the Holden home in the hours after Holden

went missing, though nothing in the record indicated if those children had ever

been in the Holden house before. Decl. of Timothy K. Ford, Ex. 9 (Decl. of

Jennifer Davis, Ex. B, June 15, 1988 Interview with Jamie Holden at 7). 12 Hair

from these various children was not tested, and it is within the realm of possibility

that the African American hair fragments recovered could have come from them.

       But the fact that hair from these children was not tested does not show bias

or improper conduct on the part of the State. The hair matched a family member of

Gentry. Gentry was seen by two eyewitnesses in the area. 13 Blood on Gentry's

shoes matched Holden's.        These facts indicate the State pursued a legitimate

prosecution against a man who is African American, not against a man because he


       12  Exhibit 9 consists of separate interviews with the Holden family, including two
different interviews with Jamie.
        13 The NAACP argues that these witnesses demonstrate the State sought to use
Gentry's "race as a proxy for guilt throughout the trial." Br. of NAACP at 10. It claims
that the testimony of two witnesses in particular "inappropriately suggested that a Black
man would only be in a White neighborhood to commit a crime'' and "legitimized the
idea that White people had reason to fear African Americans in general and Mr. Gentry in
particular." !d. The entirety of the testimony in question does not bear out this assertion.
In context, the witnesses' statements about Gentry being out of place went to his clothing,
not his race. It was a hot day, and all the eyewitnesses testified that he was overdressed
for the weather. See 56 VRP 126-28; 57 VRP 145-46, 195-96; see also State v. Allen,
176 Wn.2d 611, 624-26, 294 P.3d 679 (2013) (holding that trial court did not abuse its
discretion in refusing to give a cautionary cross-racial identification jury instruction
where the white eyewitness based his identification mostly on the African American
defendant's clothing and accessories, rather than on the defendant's race).

                                            -25-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




is African American. In light of the foregoing discussion, we conclude that there

was nothing improper in the State's focus on Gentry during the investigation phase

or in the presentation of the evidence against him.

             (5) Overall conduct

       Even when viewed against the backdrop of the systemic racism Gentry

posits (e.g., the all-white jury, the history of charging decisions), it is difficult to

come to the conclusion that most of the conduct complained of was improperly

race-based. That is not to say that Gentry is incorrect when he complains that the

criminal justice system and the death penalty process in particular is plagued by

race-based inequities. See, e.g., BRYAN C. EDELMAN, RACIAL PREJUDICE, JUROR

EMPATHY,    AND   SENTENCING IN DEATH PENALTY CASES (2006). But the broader

inequities do not mean the prosecution here engaged in improper conduct within

the contemplation of our decision in Monday. To the contrary, a careful review of

the evidence and its presentation does not support Gentry's assertions of race-

based misconduct, other than the prosecutor's statement to defense counsel.

Because the prosecutor's statement was clearly improper, we must further consider

whether it was prejudicial.

       b. Does the "Harlem" comment demonstrate prejudice entitling Gentry to
          relief on this personal restraint petition?

       Initially, it must be observed that Prosecutor Clem's "Harlem" comment,

while extremely offensive, does not present the same sort of prejudice to fair trial




                                          -26-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




rights as evident in Monday.l 4 The comment was made outside of the jury's

presence, and in no way affected the presentation the jury heard. Thus, the conduct

was not an intentional appeal to racial bias that could have "undermine[d] the

defendant's credibility or the presumption of innocence" and affected the jury's

verdict. Monday, 171 Wn.2d at 680. As far as its impact on Gentry's trial is

concerned, therefore, we conclude that the comment did not result in actual and

substantial prejudice to Gentry.

       Departing from the analysis in Monday, Gentry appears to argue that we

must consider whether the cumulative effect of all instances of race-based conduct,

in concert with the racially charged nature of the crime and the absence at trial of

persons of color other than Gentry and his counsel, constitute prosecutorial

misconduct. But the hearings following the motion to disqualify Clem after his

remark to Robinson fully explored whether there was racial bias tainting the

proceedings against Gentry. Judge Strombom noted in her oral ruling that the

"testimony [on the motion to disqualify] is quite clear, and is uncontradicted, that

no discretionary decision has been made because of a racial bias or motivation."

Suppl. VRP at 429 (Decl. of Timothy K. Ford, Ex. 16). "All of the evidence

presented suggests there is no indication or hint that anything was done in this case

that was done for a racially biased purpose." Id. at 430.           Judge Strombom's

conclusions, made after a searching inquiry into serious allegations of unethical

       14
         Amici curiae ACLU argue that in a capital case, this court should hold that a
finding of race-based prosecutorial misconduct should result in automatic reversal. Br. of
ACLU at 5. No party has advanced this argument and we decline to consider it.

                                          -27-
In re Pers. Restraint ofJonathan L. Gentry, 86585-0




behavior, assure us that Gentry did not suffer the sort of prejudice that we

confronted in Monday.
      Finally, Gentry argues that the evidence against him was thin at best, so thin
that racial bias had to have motivated the conviction. Likewise, he claims the
evidence of the aggravators that made him death-eligible was so thin that racial
bias must have contributed to that jury finding. But unless the prosecution team
appealed to racial bias, which has not been shown, an argument about the
sufficiency of the evidence is not related to prosecutorial misconduct but is more
akin to arguments already made and rejected on direct appeal. See Gentry, 125
Wn.2d at 585 (challenging the science matching the blood on Gentry's shoes to

Holden's type).
       Applying the Monday standard, we conclude that the "Harlem" remark does
not rise to the level of reversible prosecutorial misconduct.     The remark was
harmless beyond a reasonable doubt because the jury did not know of it and thus it
could have had no effect on the jury's verdict. In this personal restraint context,
the result is that Gentry cannot demonstrate actual and substantial prejudice to
support his claim for relief.
                                   CONCLUSION
       Gentry cannot receive the benefit of the new rule announced in Monday.
The burden-shifting rule announced in Monday is not retroactive under Teague,
and we decline in this case to apply a different retroactivity analysis. Even when
this case is viewed through the lens of Monday, Gentry cannot demonstrate


                                          -28-
In re Pers. Restraint of Jonathan L. Gentry, 86585-0




prejudice. The one clear instance of race-based improper conduct on the part of
the prosecution occurred outside the knowledge of the jury and could not have
affected the outcome at trial.      Recognizing the limited nature of the court's
collateral review, we dismiss Gentry's personal restraint petition.




                                           -29-
 In re Pers. Restraint Petition of Jonathan L. Gentry, 86585-0




 WE CONCUR:




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                                            -30-
In re Pers. Restraint Petition of Jonathan L. Gentry, 86585-0




                                        No. 86585-0



      WIGGINS, J. (dissenting in part) - Jonathan Lee Gentry filed a motion to

remand for supplementation of the record or a reference hearing in light of our

decision in State   v.   Davis, 175 Wn.2d 287, 290 P.3d 43 (2012). I believe a reference

hearing is necessary to examine pertinent statistics that would enable us to assess

whether Washington's death penalty is imposed in a racially discriminatory manner.

Because the majority declines to grant a reference hearing, I dissent. In all other

respects, I agree with the majority.

      We are required to conduct proportionality review in every capital case. RCW

10.95.130(2)(b). The inquiry we engage in is whether the death penalty is "excessive

or disproportionate to the penalty imposed in similar cases, considering both the

crime and the defendant." /d. One of the primary goals of proportionality review is to

ensure that the death penalty is not imposed disproportionately on the basis of race.

State v. Cross, 156 Wn.2d, 580, 630, 132 P.3d 80 (2006); State           v.   Elledge, 144

Wn.2d 62, 80, 26 P.3d 271 (2001 ); State v. Gentry, 125 Wn.2d 570, 655, 888 P.2d

1105 (1995). Since Gentry's sentencing, new data has developed concerning race

and the imposition of the death penalty in Washington. This data merits a new

proportionality review.
No. 86585-0 (Wiggins, J., dissenting in part)


       Only one other African American had received the death penalty when Gentry

was sentenced. In that case, the victim and defendant were of the same race and

ethnicity. Since Gentry's sentencing, five additional African American men have been

sentenced similarly (Sammie Luvene, Dwayne Woods, Cecil Davis, Covell Thomas,

and Allen Gregory). Of the seven African American men sentenced to death, six
                                                                    1
received the death penalty for killing a person of a different race. This statistic hints

that race impacts the imposition of the death penalty and illustrates the need for a

new proportionality review.

       In Davis, I urged the court to conduct an evidentiary hearing on similar

grounds. 175 Wn.2d at 389 (Wiggins, J., concurring in dissent). The majority there

felt "constrained to note that the issue was not raised by the defendant." !d. at 362.

In contrast to Davis, Gentry specifically requests a reference hearing to determine

"whether [racial] disparities are statistically significant." Mot. to Set Oral Arg. or to

Remand for Supplementation of the R. or a Reference Hr'g in Light of State      v. Davis,
175 Wn.2d 287, 290 P.3d 43 (Sept. 20, 2012) at 6. Thus, we do not face the

constraints the majority felt in Davis. This court- should accordingly take this

opportunity to remand Gentry's petition for an evidentiary hearing to determine

whether, statistically speaking, the imposition of Washington's death penalty is

skewed on the impermissible basis of race. The cost of any burden on the court

system associated with conducting this reference hearing is negligible compared to

the assurance that Washington fairly and proportionately imposes the death penalty.


' Only Caucasians (one of which is categorized as Caucasian-Native American) have
received the death penalty for killing someone of the same race since Gentry was
sentenced.

                                                2
No. 86585-0 (Wiggins, J., dissenting in part)




       I dissent in part.




                                                3
