Personal Restraint Petition Of Allen Eugene Gregory ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
June 15, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of No. 53849-1-II
the Personal Restraint of
ALLEN EUGENE GREGORY, UNPUBLISHED OPINION
Petitioner.
MAXA, P.J. – In this personal restraint petition (PRP), Allen Eugene Gregory seeks relief
from personal restraint imposed following his 2001 conviction for first degree aggravated murder
of a woman who lived in his neighborhood. His neighbor was raped, robbed, and stabbed to
death in her house in 1996. The case remained open until the police obtained a search warrant
for Gregory’s vehicle and obtained an order to take a blood sample from Gregory based on an
allegation of rape in an unrelated case, for which Gregory was charged and convicted in 2000.
The search warrant and the DNA match from the blood sample provided evidence that Gregory
committed the 1996 murder. He was convicted of first degree aggravated murder and sentenced
to death.
Gregory appealed both the rape and aggravated murder convictions. In a consolidated
case, the Supreme Court in 2006 reversed the rape conviction, affirmed the aggravated murder
conviction, and reversed the death sentence. On remand in 2012, Gregory again was sentenced
to death for the aggravated murder conviction. He appealed the death sentence. In October
No. 53849-1-II
2018, the Supreme Court held that the death penalty was unconstitutional as applied and ruled
that all death sentences would be converted to life in prison.
We hold that (1) Gregory is precluded from asserting his challenges to the search warrant
and blood draw orders in a PRP because the Supreme Court addressed and rejected those claims
in the two previous appeals, (2) the use of a stun belt on him during trial did not violate his
constitutional rights, (3) he cannot show that the jury was infected by racial bias, (4) he waived
his prosecutorial misconduct claim because he did not object at trial, and (5) there was no
cumulative error. However, we hold that, as the State now concedes, the State cannot collect
accrued interest from Gregory on a vacated legal financial obligation (LFO).
Accordingly, we deny Gregory’s PRP regarding his conviction, but we remand for the
trial court to remove the interest on the vacated LFO.
FACTS
Background
In 1996, GH was found dead in her house in Tacoma with multiple stab wounds. Semen
was found in her anal and vaginal swabs, on her thigh, and on the bedspread. Jewelry and
money were missing. The police suspected that Gregory, who lived near GH, was involved with
the murder based on his inconsistent statements regarding his whereabouts at the time of the
crime. However, they could not connect him with the crime.
In August 1998, a woman named RS informed the Tacoma Police Department (TPD) that
a man later identified as Gregory had raped her. She stated that she got into a car with the man
and that he displayed a buck knife before raping her three times. She said that he used a condom
but the condom had broken. RS provided to the police a description of the car, several specific
details regarding the car’s interior, the license plate number, and a description of the assailant.
RS had a history of working as a police informant.
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No. 53849-1-II
The police identified Gregory as the owner of the car of the license plate number that RS
had provided. After verifying that Gregory’s car matched the specific details that RS had
described, the police arrested him. The State charged Gregory with three counts of first degree
rape.
Search Warrant and Blood Draw Orders
In connection with the rape case, the police requested a search warrant for Gregory’s car.
The search warrant affidavit contained the details about the rapes and Gregory’s vehicle
provided by RS as described above. A magistrate issued the warrant. In the search of Gregory’s
car, the police discovered a buck knife and a condom. The condom had the same lot number and
expiration date as the condom wrapper that had been found in the area where RS had stated the
rapes had occurred.
The State also filed a motion to compel Gregory to provide a blood sample for DNA
testing. The motion incorporated by reference the search warrant affidavit for the warrant to
search of Gregory’s car. The trial court entered an order that authorized the blood draw
(September 1998 blood draw order). Gregory’s attorney approved the form of the order.
Gregory’s blood was drawn pursuant to the September 1998 blood draw order. The
Washington State Patrol Crime Laboratory (WSPCL) compared a sample of Gregory’s blood to
seminal fluid from RS’s rape kit and concluded that there was a DNA match.
More significantly, the WSPCL and two other labs concluded that Gregory’s DNA
matched the semen found at GH’s crime scene. The State then charged Gregory with first degree
aggravated murder for GH’s murder. The aggravated circumstance was murder in the course of
first degree rape and first degree robbery. The State sought the death penalty.
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No. 53849-1-II
In the rape case, Gregory moved to suppress the results of the September 1998 blood
draw. He argued that the blood draw was not supported by probable cause. The trial court
eventually denied the motion to suppress and found that Gregory’s attorney had agreed to the
September 1998 blood draw order, and ruled that there was probable cause for the blood draw.
In response to Gregory’s motion to suppress, the State moved for a second blood draw
and presented an affidavit that only contained information known to the State at the time it
sought the September 1998 blood draw order. After finding sufficient probable cause, the trial
court in January 2000 entered a second blood draw order (January 2000 blood draw order).
Gregory’s blood was drawn again pursuant to the January 2000 blood draw order. The DNA in
that blood again matched the semen found at the GH crime scene.
In the aggravated murder case, Gregory filed a motion to suppress information obtained
as a result of the two blood draw orders in the rape case. The trial court concluded that collateral
estoppel required the conclusion that the September 1998 blood draw had been entered as an
agreed order and that probable cause supported the January 2000 blood draw order. Therefore,
the court denied Gregory’s motion to suppress.
Rape Trial and Conviction
At the rape trial in 2000, Gregory asserted a consent defense. He testified that he had
consensual sex with RS, who he claimed was working as a prostitute on the night of the incident.
He stated that RS became upset with him after he refused to pay her more money after the
condom broke and that she accused Gregory of rape in retaliation.
A jury convicted Gregory of three counts of first degree rape. He was sentenced to 331
months of total confinement. Gregory appealed his convictions and sentence.
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No. 53849-1-II
Use of Stun Belt
During pretrial proceedings in the aggravated murder case, Gregory was placed in a stun
belt for security reasons. The trial court held a hearing and found good cause to order Gregory to
wear a stun belt.
At the beginning of the aggravated murder trial, Gregory asked the court to reconsider the
prior ruling regarding the stun belt. The trial court reviewed the pleadings submitted by the
parties and held a hearing regarding the application of the stun belt. The court made extensive
findings of fact, including consideration of an escape attempt, Gregory’s rape conviction and
sentence, the existence of several Hartzog1 factors, the discreetness of the stun belt, and
alternatives to the use of a stun belt. The court concluded that the stun belt was the least
restrictive means possible to ensure the safety of all persons in the courtroom while ensuring that
Gregory would have a fair trial by giving him the appearance of being free from restraint. As a
result, the court denied Gregory’s motion for reconsideration.
Aggravated Murder Conviction
The aggravated murder case proceeded to a jury trial in 2001. The only two Black
members of the jury pool were excused, one for hardship and one for cause. All members of the
jury ultimately seated were white.
The trial court admitted into evidence the buck knife found in Gregory’s car pursuant to
the search warrant. A medical examiner testified that the knife could have inflicted GH’s stab
wounds. The trial court also admitted the evidence connecting Gregory’s DNA to GH’s crime
scene. During opening statement and closing arguments, the prosecutors urged the jury to
1
State v. Hartzog, 96 Wn.2d 383, 400, 635 P.2d 694 (1981).
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No. 53849-1-II
“declare the truth.” Report of Proceedings (RP) (Feb. 14, 2001) at 4076; RP (March 19, 2001) at
6700, 6806. Gregory did not object.
The jury convicted Gregory of first degree aggravated murder. In the penalty phase of
the trial, the jury sentenced Gregory to death. Gregory appealed the aggravated murder
conviction and his death sentence.
First Appeal – Gregory I
The rape and aggravated murder cases were consolidated on appeal. State v. Gregory,
158 Wn.2d 759, 811, 147 P.3d 1201 (2006), overruled on other grounds by State v. W.R., 181
Wn.2d 757, 336 P.3d 1134 (2014) (“Gregory I”). The Supreme Court reversed the rape
conviction, affirmed the aggravated murder conviction, but reversed the death sentence. Id. at
777-78.
The court reversed the rape conviction because the trial court erred when it declined to
conduct an in camera review of the dependency files of RS’s children that were open at the time
of trial. Id. at 811. The court determined that the dependency files contained material
impeachment evidence because they disclosed that RS had lied about her drug use and about her
drug treatment. Id. at 798-99.
Gregory raised a number of arguments regarding his murder conviction, all of which the
court rejected. Id. at 813-48. Relevant here, Gregory argued that both the September 1998 and
January 2020 blood draws were improper and were not supported by probable cause. Id. at 821-
22. The court held that sufficient evidence supported probable cause to draw Gregory’s blood in
January 2000 and that the blood draw was valid. Id. at 824-25. The court declined to address the
September 1998 blood draw order because all the DNA evidence would have been inevitably
discovered as a result of the valid January 2000 blood draw order. Id. at 825.
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No. 53849-1-II
Gregory also argued that the prosecutor engaged in misconduct by “improperly
denigrating defense counsel, arguing facts not in evidence, and improperly shifting the burden to
the defense.” Id. at 841. The court rejected these arguments. Id. at 841-46.
The court reversed the death sentence because (1) the penalty phase of the aggravated
murder case relied on the rape conviction and (2) the prosecutor engaged in misconduct during
closing arguments in the penalty phase of the murder trial. Id. at 777-78, 867. The court
remanded for resentencing in the aggravated murder case. Id. at 778.
Trial Court Proceedings After Remand
Following remand, the State prepared for a new rape trial, but it was discovered during
interviews with RS that she had lied at the first trial. Specifically, she now admitted she had
agreed to commit two sex acts with Gregory in exchange for a fee, although she still claimed that
a third sex act was forced. Based on RS’s inconsistent statements regarding the rapes, the State
moved to dismiss the rape charges in August 2010. The trial court dismissed the rape charges
with prejudice.
In the aggravated murder case, Gregory sought disclosure of all information relating to
RS’s work as a police informant. The trial court ordered the TPD to disclose this information.
The TPD ultimately produced over 1,000 pages of documents regarding RS’s work as an
informant from 1992 through 2010. In August 1998 – the month that RS claimed Gregory had
raped her – RS worked on at least three cases for the TPD and was paid at least $500.
Gregory filed a pretrial motion to dismiss the death penalty proceeding for the aggravated
murder conviction, to order a new guilt phase trial, and to order a Franks2 hearing to discover the
extent of the State’s knowledge regarding evidence used to support probable cause for the search
2
Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
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No. 53849-1-II
warrant and blood draw orders. He also claimed that the State had failed to disclose Brady3
information regarding RS and her history as a police informant that would have impacted all
probable cause determinations. The trial court denied the motion. The court determined that
information regarding RS was either known or was available to Gregory’s attorneys before the
first trial and the State was not required to disclose the information regarding RS under Brady.
Following a second penalty phase trial in June 2012, Gregory again was sentenced to
death. The court entered a judgment and sentence confirming the aggravated murder conviction
and imposing the death sentence. The judgment and sentence also imposed a number of LFOs,
including $10,000 in court-appointed attorney fees and defense costs. Gregory appealed the
death sentence.
Second Appeal – Gregory II
On appeal, Gregory challenged the constitutionality of the death penalty. State v.
Gregory, 192 Wn.2d 1, 7, 427 P.3d 621 (2018) (“Gregory II”). The Supreme Court held that the
death penalty was unconstitutional as administered because it was imposed in an arbitrary and
racially biased manner. Id. at 5, 18-19. The court relied in part on a study that Gregory
commissioned in furtherance of his appeal that resulted in two reports: KATHERINE BECKETT &
HEATHER EVANS, THE ROLE OF RACE IN WASHINGTON STATE CAPITAL SENTENCING, 1981-2012
(Jan. 27, 2014), available at https://perma.cc/XPS27YTR; and KATHERINE BECKETT & HEATHER
EVANS, THE ROLE OF RACE IN WASHINGTON STATE CAPITAL SENTENCING, 1981-2014 (Oct. 13,
2014) (Updated Beckett Report), available at https://perma.cc/3THJ-989W. Gregory II, 192
Wn.2d at 12-13. The Updated Beckett report concluded that “black defendants are four and one
3
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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No. 53849-1-II
half times more likely than similarly situated non-black defendants to be sentenced to death.” Id.
at 12.
The court did not expressly remand for the trial court to correct Gregory’s sentence.
Instead, the court stated, “All death sentences are hereby converted to life imprisonment.” Id. at
36.
In his appeal, Gregory also raised arguments regarding his aggravated murder conviction,
claiming that “the trial court should have suppressed certain key evidence used at trial (blood
samples, DNA, and a knife).” Gregory II, 192 Wn.2d at 28. The court noted that Gregory’s
conviction already had been “appealed, reviewed by this court, and affirmed.” Id. at 27.
Therefore, the court declined to address these arguments. Id. at 28-30.
The court also declined to address several constitutional arguments that were rejected in
the first appeal, including prosecutorial misconduct during closing argument. Gregory II, 192
Wn.2d. at 34-35 & n.16. The prosecutorial misconduct claims were improperly shifting the
burden of proof, denigrating defense counsel’s cross-examination, commenting on Gregory’s
right to remain silent, arguing facts not in evidence, and misstating the facts. Id. at 34 n.16.
In its conclusion, the court stated, “We decline to reconsider Gregory’s arguments
pertaining to the guilt phase of his trial. His conviction for aggravated first degree murder has
already been appealed and affirmed by this court.” Id. at 36.
In June 2019, the trial court entered an order converting Gregory’s death sentence to life
without parole. The court also entered an order vacating the $10,000 in court-appointed attorney
fees and defense costs imposed as an LFO in the 2012 judgment and sentence.
Gregory filed this PRP, challenging his conviction.
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ANALYSIS
A. PRP PRINCIPLES
We will grant appropriate relief when petitioners establish that they are under restraint
that is unlawful for one of certain specified reasons. RAP 16.4(a)-(c). However, a PRP is not a
substitute for a direct appeal, and the availability of collateral relief is limited. In re Pers.
Restraint of Dove, 196 Wn. App. 148, 153, 381 P.3d 1280 (2016). “ ‘Relief by way of a
collateral challenge to a conviction is extraordinary, and the petitioner must meet a high standard
before this court will disturb an otherwise settled judgment.’ ” Id. (quoting In re Pers. Restraint
of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011)).
To succeed in a PRP, a petitioner must establish by a preponderance of the evidence (1) a
constitutional error that resulted in actual and substantial prejudice or (2) a fundamental defect of
a nonconstitutional nature that inherently resulted in a complete miscarriage of justice. Id. at
154.
RAP 16.7(a)(2) requires a petitioner to specifically identify the evidence available to
support the factual allegations in the PRP. In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503,
384 P.3d 591 (2016). The petitioner must show that he has competent, admissible evidence to
establish facts that would entitle him to relief. In re Pers. Restraint of Yates, 177 Wn.2d 1, 18,
296 P.3d 872 (2013). Conclusory allegations are insufficient. Wolf, 196 Wn. App. at 503. In
addition, the factual allegations must be based on more than speculation and conjecture. Yates,
177 Wn.2d at 18.
Under RCW 10.73.090(1), a petitioner generally must file a PRP within one year after a
trial court judgment and sentence becomes final. A judgment is not final until both the
conviction and sentence are affirmed. In re Pers. Restraint of Skylstad, 160 Wn.2d 944, 946, 162
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No. 53849-1-II
P.3d 413 (2007); see also State v. Contreras-Rebollar, 177 Wn.2d 563, 565, 303 P.3d 1062(2013).
B. VALIDITY OF SEARCH WARRANT AND BLOOD DRAWS
Gregory argues that the search warrant and the two blood draws were invalid and not
supported by probable cause because (1) RS was a “police agent” and therefore her lies that
provided the basis for the search warrant affidavit must be imputed to the State, (2) the State
failed to disclose RS’s work as a police informant and troubled personal background in violation
of Franks, (3) the officer did not sign the search warrant affidavit under penalty of perjury, and
(4) the September 1998 blood draw order was invalid because of procedural deficiencies. In the
alternative, Gregory argues that his defense counsel was ineffective for failing to raise the issues
regarding RS’s police informant background in the trial court before the murder trial, and (2) the
State violated its obligations under Brady when it did not disclose RS’s police informant
background to the defense.
We decline to consider these arguments because the Supreme Court already has ruled on
the validity of the search warrant and blood draw orders.
1. PRP Scope
A PRP may not raise an issue that already has been raised and rejected on direct appeal
unless the interests of justice requires reexamining the issue. Yates, 177 Wn.2d at 17. A PRP
“should not simply be reiteration of issues finally resolved at trial and direct review, but rather
should raise new points of fact and law that were not or could not have been raised in the
principal action, to the prejudice of the defendant.” In re Pers. Restraint of Gentry, 137 Wn.2d
378, 388-89, 927 P.2d 1250 (1999).
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No. 53849-1-II
“A ‘new’ issue is not created merely by supporting a previous ground for relief with
different factual allegations or with different legal arguments.” In re Pers. Restraint of Davis,
152 Wn.2d 647, 671, 101 P.3d 1 (2004). In general, “ ‘[a] defendant may not recast the same
issue as an ineffective assistance claim; simply recasting an argument in that manner does not
create a new ground for relief or constitute good cause for reconsidering the previously rejected
claim.’ ” Id. (quoting In re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001).
The interests of justice are served by reconsidering an issue when there has been an
intervening change in law or some other justification for failing to raise a particular argument
earlier. Yates, 177 Wn.2d at 17.
The PRP rule precluding a petitioner from raising issues that have been rejected on direct
appeal is consistent with the law of the case doctrine. Under that doctrine, the holding of an
appellate court decision on a legal issue must be followed in all of the subsequent stages of the
same litigation. Gregory II, 192 Wn.2d at 29-30.4
2. Rejection of Challenge on Direct Appeal
In Gregory I, Gregory challenged the admissibility of the buck knife found in his car
pursuant to the search warrant on relevance grounds and because its admission chilled his
constitutional right to bear arms. 158 Wn.2d at 835. The court rejected these arguments. Id. at
835-36. Gregory did not argue in the first appeal that the search warrant was invalid.
Gregory also challenged the validity of both the September 1998 and the January 2000
blood draws on various grounds. Id. at 820-22. The court concluded that the January 2000
blood draw was supported by probable cause and was valid. Id. at 823-25. The court declined to
4
RAP 2.5(c)(2) provides a limited exception to the law of the case doctrine when justice would
best be served by review of a prior appellate court’s opinion. But Gregory does not rely on this
rule.
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No. 53849-1-II
consider the validity of the September 2018 blood draw because the DNA evidence would have
been inevitably discovered from that untainted source. Id. at 825. Gregory did not argue in the
first appeal that RS’s lies and the State’s failure to disclose RS’s police informant history
invalidated the blood draws.
In Gregory II, Gregory challenged the search warrant and the blood draws based on the
State’s failure to disclose RS’s police informant history. 192 Wn.2d at 28-29. The court
characterized his argument as follows:
Gregory now attempts to reassert many of the same arguments from his first appeal.
He claims the State withheld relevant information about R.S. when obtaining the
orders to procure a sample of his DNA and a warrant to search his vehicle where
the knife was found. Specifically, he asserts that the trial court would not have
authorized the warrant or the orders if it was aware that R.S. had a history as a paid
confidential informant.
Id. The court also noted that Gregory had relied on Franks and Brady in making this argument
in the trial court. Id. at 28.
The court “decline[d] to address this argument because reconsideration is barred by law
of the case doctrine.” Id. at 29. The court elaborated:
The primary justification Gregory asserts for revisiting this issue is the information
surrounding R.S.’s history as a confidential informant. However, the trial court
found that this information was either known or made available to Gregory’s
attorney prior to the first trial. Gregory does not challenge this finding on appeal.
Thus, Gregory failed to timely raise the issue in the trial court either prior to or
during his first appeal. The decision regarding the propriety of the warrant and
orders to obtain physical evidence are therefore law of the case and not subject to
review. Law of the case also precludes consideration of the Franks issue and the
probable cause required to obtain the search warrant and blood draw orders.
Moreover, Gregory presents no new evidence that would merit authoritatively
overruling Gregory I.
Id. at 30 (citations omitted).
There is no question that the validity of the January 2000 blood draw was resolved in
Gregory I, 158 Wn.2d at 823-25. The court did not expressly address the validity of the search
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No. 53849-1-II
warrant. But because the search warrant and the blood draws were based on the same
information, the court’s analysis finding the blood draw valid applied equally to the search
warrant. In addition, the court in Gregory II expressly stated that the law of the case precluded
consideration of whether probable cause supported the search warrant and blood draws. Id. at
30. And the court expressly declined to consider one of the arguments Gregory asserts here –
that the State’s failure to disclosure RS’s police informant history violated Franks. Id.
Because the Supreme Court rejected Gregory’s challenges to the search warrant and
blood draws on direct appeal, Gregory is prohibited from raising these challenges again in a
subsequent PRP. Yates, 177 Wn.2d at 17. The fact that Gregory is now making new arguments
cannot revive these issue. Davis, 152 Wn.2d at 671. Gregory is “merely . . . supporting a
previous ground for relief with different factual allegations or with different legal arguments.”
Id. Asserting different arguments cannot avoid the prohibition against asserting an issue in a
PRP that previously had been decided on direct appeal. Yates, 177 Wn.2d at 17.
Gregory also argues that he received ineffective assistance of counsel when his trial
counsel did not challenge the validity of the search warrant before the murder trial on the
grounds raised in his PRP. But as noted above, a petitioner cannot recast an argument that
previously had been rejected on direct appeal as an ineffective assistance of counsel claim.
Davis, 152 Wn.2d at 671.
We hold that Gregory is prohibited from challenging in this PRP the validity of the
search warrant and the two blood draws because that challenge was raised and rejected in his
direct appeals.
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No. 53849-1-II
C. USE OF STUN BELT
Gregory argues that his due process rights and right to a fair jury trial were violated when
he was forced to wear a stun belt during his murder trial. We disagree.
1. Due Process
A criminal defendant is entitled to appear at trial free from all restraints except in
extraordinary circumstances. State v. Jackson, 195 Wn.2d 841, 852, 467 P.3d 97 (2020). As
such, “restraining devices should ‘be used only when necessary to prevent injury to those in the
courtroom, to prevent disorderly conduct at trial, or to prevent an escape.’ ” State v. Damon, 144
Wn.2d 686, 691, 25 P.3d 418 (2001).
“Although restraints implicate important constitutional rights, the right to be free from
restraint is not absolute, and trial court judges are vested with the discretion to determine
measures that implicate courtroom security, including whether to restrain a defendant in some
capacity in order to prevent injury.” Jackson, 195 Wn.2d at 852. Trial courts have “broad
discretion to determine what security measures are necessary to maintain decorum in the
courtroom and to protect the safety of its occupants. Damon, 144 Wn.2d at 691. But there must
be a factual basis in the record for the exercise of that discretion. Jackson, 195 Wn.2d at 853.
In exercising its discretion whether to allow the defendant to be restrained, the trial court
may consider several factors including:
“[T]he seriousness of the present charge against the defendant; defendant’s
temperament and character; his age and physical attributes; his past record; past
escapes or attempted escapes, and evidence of a present plan to escape; threats to
harm others or cause a disturbance; self-destructive tendencies; the risk of mob
violence or of attempted revenge by others; the possibility of rescue by other
offenders still at large; the size and the mood of the audience; the nature and physical
security of the courtroom; and the adequacy and availability of alternative
remedies.”
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No. 53849-1-II
Id. (alteration in original) (internal quotation marks omitted) (quoting State v. Hutchison, 135
Wn.2d 863, 887-88, 959 P.2d 1061 (1998)). Before deciding if a defendant should be
restrained, the trial court must conduct a hearing and enter findings that reflect a reasoned
analysis that justifies the use of the restraints. Damon, 144 Wn.2d at 691-92. Failure to make an
adequate inquiry on the record constitutes constitutional error. State v. Clark, 143 Wn.2d 731,
775, 24 P.3d 1006 (2001).
A claim of unconstitutional use of a restraint is subject to harmless error analysis. See
Jackson, 195 Wn.2d at 855. Under that analysis, the State bears the burden to show beyond a
reasonable doubt that the use of the restraint was harmless. Id. at 856.
2. Analysis
At two different hearings in 1999 and 2001, the trial court addressed whether the use of
restraints on Gregory were necessary during the proceedings of the case. Significant here, the
detailed 2001 findings of fact and conclusions of law show that the court considered Gregory’s
past attempt to escape from jail, the location and security of the courtroom with respect to any
potential escape attempts during trial, alternatives to the use of a stun belt, the existence of any
Hartzog factors, and lack of visibility of a stun belt under Gregory’s clothes. The court also
balanced Gregory’s right to a fair trial and the court’s authority to “maintain decorum in the
courtroom and to protect the safety of its occupants.” See Damon, 144 Wn.2d at 691.
After the 2001 hearing, the trial court issued detailed findings of fact and conclusions of
law, citing additional events that occurred in between the two hearings that further justified the
use of restraints:
3. Based on police reports and information provided by the State, the defendant
attempted to escape from the Pierce County Jail on July 31, 2000. The defendant
removed the screws from the frame around his window and cracked the window
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No. 53849-1-II
itself. The defendant is charged with Attempted Escape 2 and Malicious Mischief
2 from this incident.
4. In October 2000, the defendant was convicted of three counts of Rape in the
First Degree with deadly weapon sentence enhancement. In November, 2000, the
defendant was sentenced to 331 months in prison. Regardless of the outcome of
this case, the defendant will be taken to the Department of Corrections when this
trial is over.
5. The defendant has had several other incidents involving his refusal to comply
with the rules of the jail and/or commands from jail staff. Those incidents are listed
in the State’s memorandum, with specific documentation contained in the
appendices of that memorandum. That list of incidents is incorporated herein by
this reference.
Clerk’s Papers (CP) at 6116-17.
The trial court made additional findings that recognized several Hartzog factors and
additional factors that it considered:
6. Many of the Hartzog factors are present in this case, including: 1) the defendant
is charged with the most serious offense possible; 2) the defendant is only 28 years
old, is over six feet tall, and appears to be in good physical condition; 3) the
defendant has been convicted of a violent sex offense, three counts; 4) the defendant
attempted to escape from the jail; 5) the escape attempt suggests that the defendant
might try to escape again; 6) the courtroom in which this case will be tried is the
furthest courtroom to respond to in case of an emergency and is quite close to an
exit from the building; and 7) there is no adequate alternative remedy; the other
options the court has available are belly chain and handcuffs, which would clearly
be visible to the jury, or no physical restraints and additional security guards, which
would likely cause the jury to speculate why so many officers were present.
7. There are additional factors that the court has considered, including: 1) the
defendant has already been sentenced to over 28 years in prison and will be taken
to prison regardless of the outcome of this trial, so the incentive to attempt an escape
is greater now [than] before the defendant was convicted and sentenced in that case;
2) the stun belt apparatus is not visible to the casual observer because a) it will be
covered by the defendant’s suit coat and b) the design of the chairs in the courtroom
is such that the defendant can sit normally in the chair, completely hiding the stun
belt equipment.
8. If the court were to find the stun belt should not be worn, there would have to
be additional uniformed jail guards present. This alternative could impact the
defendant’s right to a fair trial because it might suggest to the jury that the defendant
is so dangerous that several officers have to be present to protect persons from him.
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No. 53849-1-II
CP at 6117-18.
All these findings of fact were supported by a number of attachments to the State’s
memorandum in support of the use of a stun belt during trial. Based on the findings, the trial
court concluded that the stun belt, in comparison to physical restraints or no restraints of any
kind but additional security guards, would allow Gregory to appear free of restraints while
balancing the safety and security of the courtroom.
Gregory challenges a number of the trial court’s findings. First, he argues that he was not
a flight risk because there was no real danger of escape when he attempted to pry a window
open. But the record shows that Gregory actually removed the screws from the frame around his
window and successfully cracked open the window. This was a sufficient basis to find that he
was a flight risk, especially in light of the finding that Gregory had been sentenced to over 28
years in prison for the then-valid rape conviction and would be taken to prison regardless of the
outcome of the aggravated murder trial.
Second, Gregory argues that consideration of his rape conviction was not valid because
that conviction later was reversed. But the trial court could not have known that the rape
conviction would be reversed five years after it ordered the use of the stun belt.
Third, Gregory argues that the trial court’s findings regarding his size, age, and physical
shape may have been based on explicit or implicit racial bias. But he fails to provide any support
for such an allegation. And age and physical attributes clearly are permissible factors to consider
when determining if a defendant needs to be restrained. Jackson, 195 Wn.2d at 853.
Fourth, Gregory disputes the trial court’s finding that the stun belt apparatus would not be
visible to the jury based on the fact that it was covered by his clothes and the design of the chairs
in the courtroom. He cites to defense counsel’s comment on the record that eight potential jurors
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No. 53849-1-II
in the gallery section could see where Gregory was seated and the bulge in his back. However,
the State clarified that the corrections officer confirmed that the stun device was not visible from
the gallery because it was below the back of the chair where Gregory was sitting that morning.
And defense counsel did not object after the trial court stated on the first day of trial that the stun
belt was not visible to the jury while Gregory was seated.
Even if there was a factual dispute, the trial court was in a unique position to determine
the visibility of the stun belt apparatus in its own courtroom. Further, the court stated that it
would continue to monitor the use of the stun belt during the course of the trial to ensure that it
remained hidden from the jury.
Finally, Gregory argues that the psychological effects of the stun belt further
compounded the alleged racial bias in the jury because it caused him to appear stiff and
emotionless. But he fails to point to any evidence in the record to support this allegation and the
declaration that Gregory provides from his trial counsel only makes conclusory statements that
the jurors may have speculated that Gregory was restrained during trial and made him look
emotionless.
The trial court fully analyzed on the record whether to allow a stun belt to be applied to
Gregory as required and considered many of the factors identified in Jackson. We conclude that
substantial evidence in the record supports the trial court’s findings of fact and conclusions of
law. Further, we conclude that the trial court did not abuse its discretion in allowing a stun belt
to be applied to Gregory during his trial. As a result, we hold that use of the stun belt did not
violate Gregory’s constitutional rights.5
5
Gregory argues that this case should be sent to the trial court for a reference hearing to
determine whether the jury could have seen the stun belt and to determine any other effects of
using the stun belt. Based on our holding, there is no basis for a reference hearing on this issue.
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No. 53849-1-II
D. RACIAL BIAS OF JURY
Gregory argues that his conviction must be vacated because it rests upon a verdict from a
jury that was infected by racial bias in violation of the Sixth and Fourteenth Amendments to the
United States Constitution and article I, sections 21 and 22 of the Washington Constitution. He
argues that the Supreme Court in Gregory II already determined that the jury in his case likely
was infected by explicit or implicit racial bias. We disagree.
1. Legal Principles
Under the Sixth and Fourteenth Amendments of the United States Constitution, a
criminal defendant has the right to be tried by a jury that is “representative of the community.”
State v. Barajas, 143 Wn. App. 24, 34, 177 P.3d 106 (2007). However, there is “no
constitutional right to a jury comprised in whole, or in part, of persons of his or her own race.”
Id. But there is a constitutional right to “ ‘be tried by a jury whose members are selected
pursuant to non-discriminatory criteria.’ ” Id. (quoting Batson v. Kentucky, 476 U.S. 79, 85-86,
106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)).
The Supreme Court in State v. Behre expressed concern regarding racial bias within
juries:
Unlike isolated incidents of juror misbehavior, racial bias is a common and
pervasive evil that causes systemic harm to the administration of justice. Also
unlike other types of juror misconduct, racial bias is uniquely difficult to identify.
Due to social pressures, many who consciously hold racially biased views are
unlikely to admit to doing so. Meanwhile, implicit racial bias exists at the
unconscious level, where it can influence our decisions without our awareness.
....
An “impartial jury” means “an unbiased and unprejudiced jury,” and allowing bias
or prejudice by even one juror to be a factor in the verdict violates a defendant’s
constitutional rights and undermines the public’s faith in the fairness of our judicial
system.
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No. 53849-1-II
193 Wn.2d 647, 657-58, 444 P.3d 1172 (2019) (quoting Alexson v. Pierce County, 186 Wash.
188, 193, 57 P.2d 318 (1936)).
2. Analysis
Gregory acknowledges that he does not provide any evidence to support his allegations
that his jury evidenced explicit or implicit racial bias when he was convicted of aggravated
murder. Nor does he make a Batson challenge arguing that the jury was selected in a
discriminatory manner. Instead, he asks this court to apply the holding in Gregory II regarding
racial bias in capital murder juries to this case. He claims that “there is now a definitive
determination from the Washington Supreme Court that capital juries in Washington State from
1981 until 2014 were plagued by racial bias.” Br. of Pet’r at 34.
However, the Beckett reports referenced in Gregory II provided data and analysis
regarding how race influences the imposition of the death penalty, not how race impacts a jury’s
deliberation on whether a Black defendant is guilty of aggravated murder. See Gregory II, 192
Wn.2d at 12. And the Supreme Court in Gregory II did not make the determination that capital
murder juries in general or this specific jury was infected with racial bias. Instead, the court’s
holding was limited to an assessment of the “association between race and the death penalty” and
to “[t]he arbitrary and race based imposition of the death penalty.” Gregory II, 192 Wn.2d at 22-
23. In the absence of the type of data compiled regarding the imposition of the death penalty, we
cannot agree with Gregory’s suggestion that a jury that was racially biased in assessing the death
penalty necessarily would be racially biased in convicting a defendant. We conclude that the
Supreme Court’s holding in Gregory II does not support a finding that the jurors were affected
by racial bias during the conviction phase of the trial.
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No. 53849-1-II
Gregory notes the fact that he was convicted by an all-white jury selected from a jury
pool that included only two Black potential jurors, even though Pierce County’s population at the
time was eight percent Black. One of the Black prospective jurors was excused because of
hardship and the other was stricken for cause because of opposition to the death penalty. But he
acknowledges that these facts are not sufficient to grant him relief. See Yates, 177 Wn.2d at 20-
21 (rejecting a claim that the jury pool was not from a fair cross section of the community
without statistical evidence that certain groups have been underrepresented in jury pools).
Gregory also notes the use of antiquated racial terms like “Negroid” and “Negro” during
expert testimony regarding DNA evidence. But he acknowledges that use of such words is not
necessarily proof of improper racial bias. See In re Pers. Restraint of Gentry, 179 Wn.2d 614,
634, 316 P.3d 1020 (2014) (stating that “[t]he prosecution’s use of the word [Negroid] does not
in any way appear to be an appeal to race-based prejudices, and we reject the claim that it was
improper”).
Gregory cites Berhe to highlight the prevalence of racial bias in juries. In that case, a
juror informed defense counsel and the trial court after conviction that she wanted to vote “not
guilty” but that the other jurors ignored her concerns because she was the only juror who was the
same race as the defendant. Berhe, 193 Wn.2d at 651, 54. The defendant moved for a new trial
and requested an evidentiary hearing based on this information. Id. at 653. The Supreme Court
held that the trial court failed to conduct a sufficient inquiry into the allegations of racial bias that
influenced the jury verdict and vacated the trial court’s order denying the defendant’s motion for
a new trial. Id. at 669-70. But Berhe is inapplicable here because Gregory concedes that there is
no evidence that any juror exhibited implicit or explicit racial bias in this case.
22
No. 53849-1-II
Gregory has presented no actual evidence that the jury was infected by racial bias when it
convicted him of first degree aggravated murder. Therefore, we reject Gregory’s racial bias
claim.
E. PROSECUTORIAL MISCONDUCT
Gregory argues that the State’s “declare the truth” arguments during opening statement
and closing arguments constituted prosecutorial misconduct. We agree that the arguments were
improper, but we conclude that Gregory waived this claim when he did not object at trial.
1. Standard of Review
To establish prosecutorial misconduct, a defendant must show that the prosecutor’s
conduct was both improper and prejudicial in the context of the record and all of the
circumstances of the trial. State v. Loughbom, 196 Wn.2d 64, 70, 470 P.3d 499 (2020).
A prosecutor’s “ ‘opening statement should be confined to a brief statement of the issues
of the case, an outline of the anticipated material evidence, and reasonable inferences to be
drawn therefrom.’ ” Loughbom, 196 Wn.2d at 76 (quoting State v. Campbell, 103 Wn.2d 1, 15-
16, 691 P.2d 929 (1984)). In addition, prosecutors have wide latitude during closing argument to
argue reasonable inferences from the evidence, but such arguments must be based on probative
evidence and sound reason. Id. at 76-77.
To establish prejudice, the defendant must show a substantial likelihood that the
misconduct affected the jury verdict. State v. Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43(2011). When analyzing prejudice, we do not look at the alleged improper remarks “in isolation,
but in the context of the total argument, the issues in the case, the evidence, and the instructions
given to the jury.” State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).
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No. 53849-1-II
When the defendant fails to object at trial, “the defendant is deemed to have waived any
error, unless the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction
could not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d
653 (2012). In order to prevail under this heightened standard, the defendant must show that (1)
no curative instruction could have eliminated the prejudicial effect, and (2) there was a
substantial likelihood the misconduct resulted in prejudice that affected the verdict. Id. at 761.
2. Reviewability of Claim
Initially, the State argues that the law of the case doctrine applies here because the
Supreme Court in Gregory I found no prosecutorial misconduct based on the State’s closing
argument that allegedly shifted the burden of proof to the defense. The State also notes that the
Supreme Court in Gregory II declined to address Gregory’s multiple prosecutorial misconduct
challenges.
As noted above, a petitioner generally may not raise a claim that already has been raised
and rejected on direct appeal. Yates, 177 Wn.2d at 17. However, although Gregory raised
several prosecutorial misconduct claims in his first two appeals, he did not challenge the
prosecutor’s “declare the truth” remarks in those appeals. See Gregory II, 192 Wn.2d at 34-35 &
n.16; Gregory I, 158 Wn.2d at 841-46. Making a prosecutorial misconduct claim based on one
ground does not preclude a subsequent PRP asserting prosecutorial misconduct based on another
ground. See In re Pers. Restraint of Khan, 184 Wn.2d 679, 688-89, 363 P.3d 577 (2015)
(addressing a new ineffective assistance of counsel in a PRP based on a different ground of
ineffective assistance of counsel that was raised in the direct appeal). Therefore, we consider
Gregory’s new allegation of prosecutorial misconduct.
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No. 53849-1-II
3. “Declare the Truth” Arguments
a. Challenged Statements
Here, one of the prosecutors stated in her opening statement:
We ask a lot of juries in this system. We ask a lot of juries. What we ask you for
is to listen to the evidence and to render a verdict. And the word “verdict” that we
use in American courts comes from Latin, veredictum, and it means declare the
truth, declare the truth.
You listen to the evidence in this case and declare the truth. It’s the defendant,
Allen Gregory, who decided to rob [GH], who decided to rape her, and he decided
to murder her. Declare the truth, ladies and gentlemen. Convict the defendant.
RP (Feb. 14, 2001) at 4076. Gregory did not object.
A different prosecutor continued with the “declare the truth” theme in his closing
argument:
In opening statement, Ms. Robnett told you that the only purpose that you have as
jurors in a criminal case is to declare the truth, and it’s with that purpose in mind
that closing arguments proceed. Closing argument is the time when you take the
evidence that you were presented on the witness stand and fit it into the instructions
that the court just read to you. The purpose of closing argument is to point you
toward a just verdict, declaring the truth, doing justice, two ways of saying the same
thing. That’s the only thing that the state is interested in in this case.
RP (Mar. 19, 2001) at 6700. He again repeated “declare the truth” comments in rebuttal.
Gregory did not object to either argument.
b. Improper Argument
This court was the first appellate court in Washington to hold that “declare the truth”
arguments were improper in State v. Anderson, 153 Wn. App. 417, 429, 220 P.3d 1273 (2009).
The court stated, “A jury’s job is not to ‘solve’ a case. It is not, as the State claims, to ‘declare
what happened on the day in question . . . . Rather, the jury’s duty is to determine whether the
State has proved its allegations against a defendant beyond a reasonable doubt.” Id.25
No. 53849-1-II
Another panel of this court subsequently held that a “speak the truth” argument was not
misconduct. State v. Curtiss, 161 Wn. App. 673, 701-02, 250 P.3d 496 (2011). But in a later
case this court again relied on Anderson in determining that such an argument was improper.
State v. Walker, 164 Wn. App. 724, 733, 265 P.3d 191 (2011).
The Supreme Court subsequently confirmed that when the prosecutor tells the jury to
“declare the truth,” it is a misstatement of the burden of proof and constitutes improper conduct.
State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014); Emery, 174 Wn.2d at 760. The
court in Emery stated, “The jury’s job is not to determine the truth of what happened; a jury
therefore does not ‘speak the truth’ or ‘declare the truth.’ ” 174 Wn.2d at 760. Instead, “a jury’s
job is to determine whether the State has proved the charged offenses beyond a reasonable
doubt.” Id.Here, the State used nearly identical language that the Supreme Court twice has held was
improper. See Lindsay, 180 Wn.2d at 430, 437; Emery, 174 Wn.2d at 751, 760. Therefore, we
conclude that the prosecutor’s statements were improper.
c. Failure to Object
Because Gregory failed to object to the prosecutors’ statements, the question here is
whether he waived his challenge. See Emery, 174 Wn.2d at 760-61.
First, the prosecutors’ statements were not necessarily flagrant and ill-intentioned. They
certainly would be if made today. But Anderson, the first case holding that “declare the truth”
arguments were improper, was decided over eight years after Gregory’s murder trial. 153 Wn.
App. 417. And even after Anderson this court issued contrary opinions on this issue. Walker,
161 Wn. App. at 733; Curtiss, 161 Wn. App. at 701-02. Emery was decided 11 years after
26
No. 53849-1-II
Gregory’s trial. 174 Wn.2d 741. Therefore, this was not a situation where the prosecutor was
ignoring established precedent.
Second, the prosecutors’ statements could have been cured by an instruction if Gregory
had objected. The court in Emery held that an instruction could have cured a “declare the truth”
argument and another argument misstating the State’s burden of proof. 174 Wn.2d at 763-64.
The court noted that these types of comments were not so inflammatory that they created
incurable prejudice. Id. at 762-63. The court stated that the trial court “could have properly
explained the jury’s role and reiterated that the State bears the burden of proof and the defendant
bears no burden. Such an instruction would have eliminated any possible confusion and cured
any potential prejudice stemming from the prosecutor’s improper remarks.” Id. at 764.
Accordingly, we hold that although the “declare the truth” statements were improper,
Gregory waived his challenge to those statements.
4. Ineffective Assistance of Appellate Counsel
Gregory also argues in the alternative that it was ineffective assistance of appellate
counsel not to challenge the State’s use of the “declare the truth” arguments in his first appeal.
He submits a declaration from his appellate counsel that the failure to raise this challenge was
not based on any tactical reason.
To establish ineffective assistance of appellate counsel, a petitioner bears the burden to
show that (1) his appellate counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant. In re Pers. Restraint of Salinas, 189 Wn.2d 747, 759,
408 P.3d 344 (2018). The petitioner also must show that the legal issue that the appellate
counsel did not raise had merit and that he or she actually was prejudiced. Id. at 760.
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No. 53849-1-II
Here, we hold above that Gregory waived his challenge to the “declare the truth”
statements by not objecting at trial. Gregory cannot show that the result would have been any
different if the issue had been raised in the first appeal. Therefore, we hold that Gregory cannot
establish ineffective assistance of appellate counsel on this ground.
F. CUMULATIVE ERROR
Gregory argues that cumulative error requires this court to vacate his aggravated murder
conviction. Under the cumulative error doctrine, the defendant bears the burden to show that the
combined effect of multiple errors requires a new trial. State v. Clark, 187 Wn.2d 641, 649, 389
P.3d 462 (2017).
Here, Gregory has not demonstrated that regardless of any errors, he was denied a fair
trial. Therefore, we hold that the cumulative error doctrine is inapplicable.
G. INTEREST ON VACATED LFO
Gregory argues, and the State conceded at oral argument, that there is no authority to
assess interest on court-appointed attorney fees that originally were imposed as an LFO in the
2012 judgment and sentence but subsequently vacated in 2019. We accept the State’s
concession, and we hold that any interest that accrued on the vacated imposition of court-
appointed attorney fees as an LFO must be removed.
CONCLUSION
We deny Gregory’s PRP regarding his conviction, but we remand for the trial court to
remove the interest on the vacated LFO.
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No. 53849-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
CRUSER, J.
VELJACIC, J.
29