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        IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint     )
of                                          )       No. 83606-0
                                            )
DAROLD RAY STENSON,                         )
                                            )
                      Petitioner.           )
                                            )       Filed May 10, 2012

       ALEXANDER, J.* -- In 1994, Darold Stenson was sentenced to death after he 

was found guilty of murdering his wife, Denise Stenson, and business partner, Frank 

Hoerner. In 2009, Stenson's counsel filed the personal restraint petition (PRP) that is 

before us now. In it he has raised a due process claim based on alleged violations of 

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Stenson's 

Brady  claim pertained to evidence consisting of photographs and an FBI (Federal 

Bureau of Investigation) file that the State had access to at the time of trial but did not 

provide to Stenson's counsel until 2009. The question before us is whether the State 

violated Stenson's rights under the mandates of Brady and its progeny. Because we 

hold that it did, we reverse Stenson's aggravated first degree murder conviction as well 

as the sentence of death and remand for a new trial.

                                                I

       In the early hours of March 25, 1993, Darold Stenson called 911 from his home 

       *Justice Gerry L. Alexander is serving as a justice pro tempore of the Supreme 
Court pursuant to Washington Constitution article IV, section 2(a). 

No. 83606-0

to report that his wife and business partner had been shot. A Clallam County deputy 

sheriff soon arrived at the scene and was directed by Stenson to the body of Frank 

Hoerner. Hoerner appeared to have died from a gunshot wound to the head. Stenson 

also directed the deputy sheriff to a bed within his home in which his wife, Denise, was 

lying with what appeared to be a bullet wound to her head. Denise Stenson later died at 

a hospital. 

       Stenson told the deputy sheriff that Hoerner had arrived at Stenson's office 

earlier that day, ostensibly to sign paperwork relating to a business deal. Stenson's 

office was located next to his house. Stenson explained that Hoerner later went into the 

house indicating his intent to use a bathroom. Stenson said he later went into the 

house to look for Hoerner and discovered that Hoerner and Denise Stenson had both 

been shot. Stenson indicated to the deputy sheriff that Hoerner may have shot Denise 

Stenson and then turned the gun on himself.

       A subsequent investigation by the sheriff's office convinced them that Hoerner 

had not committed suicide but, rather, had been beaten unconscious and dragged from 

Stenson's gravel driveway into the house. It was there, the investigators believed, that 

Hoerner had been shot in the head at close range. 

       Stenson was thereafter arrested and charged in Clallam County Superior Court 

with two counts of aggravated first degree murder. At the trial on the charges, the 

State's theory of the case was that Stenson had killed his wife to collect life insurance 

proceeds and then killed Hoerner to get out from under a debt he owed to Hoerner and 

                                               2 

No. 83606-0

to blame Hoerner for the murder of Denise Stenson. 

       Two key pieces of forensic evidence directly tied the defendant to the shootings: 
(1) gunshot residue (GSR)1 found inside the front right pocket of jeans that Stenson 

was wearing when the officers arrived at his house and (2) blood spatter on the front of 

those jeans that was consistent with Hoerner's blood protein profile. See Reference 

Hr'g Findings & Conclusions (RHFC) at 18; State v. Stenson, 132 Wn.2d 668, 680, 940 

P.2d 1239 (1997) (Stenson  I). Stenson claimed that when he discovered Hoerner's 

body he kneeled next to it, suggesting that this may have accounted for the blood 

spatter on his jeans. An expert witness called by the State testified at trial that some of 

the blood spatter on Stenson's jeans could not have been deposited after Frank came 

to his final resting place on the floor. The remainder of the evidence presented by the 

State at trial was largely circumstantial.

       A jury found Stenson guilty of both counts of aggravated first degree murder and 

concluded that there were not sufficient mitigating circumstances to merit leniency. 

Based on the verdicts, the trial court sentenced Stenson to death. Stenson appealed 

and in 1997 this court affirmed both convictions and the death sentence. We have 

since rejected four PRPs filed by Stenson. See In re Pers. Restraint of Stenson, 142 

Wn.2d 710, 16 P.3d 1 (2001) (Stenson II); In re Pers. Restraint of Stenson, 150 Wn.2d 

207, 76 P.3d 241 (2003) (Stenson III); In re Pers. Restraint of Stenson, 153 Wn.2d 137, 

       1GSR is created during discharge of a firearm and consists of small particles, 
visible only with magnification, that "'float'" in the air and "are easily transmitted from 
one object to another." Reference Hr'g Findings & Conclusions at 4.

                                               3 

No. 83606-0

102 P.3d 151 (2004) (Stenson IV); see Wash. Supreme Ct. Order, In re Pers. Restraint 

of Stenson, No. 82332-4 (Nov. 19, 2008) (denying PRP as successive).

       In 2008, Stenson's appellate counsel were notified that FBI Special Agent Ernest 

Peele, an expert witness who testified at Stenson's trial, had given testimony about 

bullet lead analysis in a manner that exceeded the scope of what that evidence could 

properly show. Although the bullet lead analysis evidence was of relatively little 

significance at trial, the information about Peele's flawed testimony raised additional 

questions for Stenson's counsel who had already been reviewing the evidence in 

Stenson's case based on information they had received about other potential suspects. 

Armed with the new information about Peele's testimony, Stenson's counsel decided to 

"'throw[] out as wide a net as they could'" to be able to present an "'actual innocence'"

claim. RHFC at 8. Accordingly, they requested the State to turn over all records relating 

to bullet lead analysis, GSR, and blood spatter testing. 

       The State responded in 2009 and disclosed evidence that had not previously 

been made available to the defense team, to wit: (1) photographs depicting Clallam 

County Sheriff's Detective Monty Martin wearing Stenson's jeans with the right pocket 
turned out and showing Martin's ungloved hands,2 and (2) an FBI file containing the 

GSR test results that revealed a person named Kathy Lundy, not Peele as Peele's 

testimony at trial implied, had performed the GSR tests at the FBI laboratory. Stenson 

then filed, without benefit of counsel, a fifth PRP, in which he claimed that his trial 

counsel had been ineffective because they failed to discover this previously 

       2See attach.

                                               4 

No. 83606-0

undisclosed evidence prior to trial. See In re Pers. Restraint of Stenson, No. 83130-1 (May 

26, 2009). Shortly thereafter, Stenson's appellate counsel filed this PRP, his sixth, 
alleging Brady and Napue3 violations based on the previously undisclosed photographs 

and FBI file.4

       We subsequently ordered Judge Williams of the Clallam County Superior Court, 

the judge who had presided over Stenson's trial, to conduct a reference hearing. The 

reference hearing pertained to questions about whether the evidence disclosed in 2009
was, in fact, newly discovered.5 At the conclusion of the reference hearing, which 

occurred over a two week period in January 2010, Judge Williams made numerous 

findings of fact, some of which we set forth hereafter:
       [P]hotographs . . . show[] Mr. Stenson's pants being handled[6] by an 
       ungloved law enforcement officer, with the pockets turned inside out, six 
       days prior to the pockets being sampled for gunshot residue. 

RHFC at 3.

       3Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).

       4The decision we render in this opinion, which is based primarily on arguments 
presented in Stenson's sixth PRP, renders it unnecessary for us to address the 
arguments Stenson makes in his fifth PRP.

       5We   ordered Judge Williams to determine whether Stenson satisfied the 
substantive newly discovered evidence test. See Stenson IV, 153 Wn.2d at 147 (stating 
that the substantive newly discovered evidence test requires a petitioner to show the 
evidence (1) will probably change the result of the trial or proceedings, (2) was 
discovered since the trial or proceedings, (3) could not have been discovered before 
the trial or proceedings by the exercise of due diligence, (4) is material, and (5) is not 
merely cumulative or impeaching). Stenson's counsel later clarified that he was not 
raising a substantive newly discovered evidence claim but was instead asserting a 
Brady claim on the basis of evidence that was newly discovered.

       6Martin admits he is wearing the pants in the photographs.

                                               5 

No. 83606-0

       Martin took Mr. Stenson's pants to Mr. [Rod] Englert [at Intermountain 
       Laboratory in Portland, Oregon] on the 14th of April, 1994. Mr. Englert 
       suggested to Detective Martin that Mr. Stenson's pants pockets be tested 
       for GSR. The pants pockets were turned out [on] that date to look for 
       blood evidence. 

Id. at 9.

       On April 20, 1994, in Detective Martin's garage, GSR sampling dabs of 
       the pants pockets were taken as well as luminal testing of the pants. The 
       pants pockets were again turned inside out. . . . The dab samples were 
       then sent to the FBI. 

Id. at 10.

       Prior to trial there were numerous hearings and discovery orders entered. 
       . . . compelling    the State to provide the defense with all evidence 
       "favorable to the defense on the issue of guilt and to provide the defense 
       with the name of every expert witness and a copy of that witness's report"
       [and the] "reports, letters and conclusions prepared by or on behalf of lab 
       or other forensic experts."

Id. at 1-2 (citing Reference Hr'g Ex. 10-11). 

       The testimony is that the photographs were available to investigators 
       representing both the State and the defense. The testimony of Mr. Englert 
       is that [he] met with the defense investigator Walker . . . and that the 
       entire file which included the photographs was on the table. Mr. Walker's 
       reports note the existence of [the] photographs and describe several of 
       them. Two copies of the photographs were printed. Only one remains in 
       Mr. Englert's file. Mr. Walker's report states that Mr. Englert suggested he 
       get copies of the file and photographs from the Prosecuting Attorney as it 
       would be cheaper. Mr. Englert told Mr. Walker that Detective Monty 
       Martin had a copy of the photographs. Mr. Englert was paid for mailing. 
       The testimony at the reference hearing was that neither Detective Martin 
       nor the Prosecuting Attorney recalled receiving copies of the pictures. Mr. 
       Englert testified that he would not have released the pictures or his file to 
       the defense team without permission. Prosecuting Attorney [David] 
       Bruneau testified that he had never seen the photos nor knew the pants 
       pockets had been turned out . . . until 2010. A motion for discovery of the 
       Englert notes was filed and argued and the notes were provided [but the 
       photographs were not]. However at the same time the Prosecuting 
       Attorney stated that Mr. Englert would not be called as a witness. 

                                               6 

No. 83606-0

Id. at 21-22.

       Nothing in materials provided to [the] defense [team] stated that the 
       Englert examination included turning the pockets out and anyone being 
       ungloved. It was reasonable to assume, as [the] defense did, that nothing 
       in Mr. Englert's possession would have had any relevance to GSR or 
       even to the case once it was determined that Mr. Englert would not be 
       testifying. 

Id. at 23.

       Trial commenced with motions on June 6, 1994. 

Id. at 2. 
       Special Agent Peele issued his two page report on the 13th of June, 1994. 
       This report was received by the defense on June 20, 1994. At the time of 
       receipt of the GSR report trial had already commenced and jury selection 
       was well underway. At that time the defense was dealing primarily with 
       other forensics issues, particularly blood spatter issues which also arose 
       near the trial date. The blood spatter issues were the subject of a request 
       for trial continuance and/or dismissal which was hotly contested due to 
       the lateness of the issue being raised.

Id. at 10.

       [Peele] testified at trial that gunshot residue was found in Mr. Stenson's 
       right, front pocket.

Id. at 4. 

       Detective Martin was present when Special Agent Peele testified in 1994. 

Id. at 5. 

       Special Agent Peele assumed the dab sampling test was done on the 
       pockets during the early stages of the investigation before everything was 
       handled or "fooled with." In actuality the dabs had only been taken at late 
       stages of the investigation and more than one year after the pants were 
       seized and after the pants had traveled to the FBI Laboratory in the 
       Hoover Building in Washington, D.C., to the Intermountain Laboratory in 
       Portland, Oregon, and to other places.

                                               7 

No. 83606-0

              . . . In 2005 it was learned the Hoover Building, which contained 
       two shooting ranges, was itself contaminated with GSR. 

Id. at 4 (citing Reference Hr'g Ex. 14).

       The lab notes indicate that Kathy Lundy, not Agent Peele, had actually 
       performed the testing for GSR and that only four grains of GSR had been 
       found after a series of examinations. (Dr. [Jean] Arvisu believes the data 
       supports only two grains.) 

Id. at 9. 

       Unless a massive amount of GSR is found the number of particles is of 
       relative insignificance. 

Id. at 5.

       All parties knew the bench notes existed. The bench notes well may have 
       been literally in front of all the parties at the time of trial. Neither party 
       apparently believed there was anything worth looking at in the FBI file. If, 
       however, the material contained exculpatory or impeaching matter it 
       should have been provided to defense counsel under Brady. Defense 
       counsel had a right to rely on that requirement as well as its own 
       reasonable assessment of need to further inquir[e] into the file and 
       therefore had no duty to pursue further discovery when no materiality 
       appeared likely. 

Id. at 15.

       Relying on his findings of fact, Judge Williams determined that based on the 

evidence submitted at the reference hearing, the "information in the photographs . . . is 

sufficient to cause subsequent [GSR] tests to be wholly unreliable," and in this regard, 

the "photographs would lead to the elimination of the GSR evidence" at trial. Id. at 24. 

He further held that 

       the content of the Englert photographs do[es] not merely show another 
       possible source of contamination, they show a potential source of 
       contamination which rises to such a degree that subsequent finding of 
       GSR in the pants pocket no longer has any evidentiary viability in light of 

                                               8 

No. 83606-0

       the potential for unfair prejudice to the defendant.

Id.  at 24-25 (emphasis added). Judge Williams concluded further that had the 

"ungloved handling and the turning out of the pockets been known to the trial court and 

an appropriate objection made, the GSR testimony would have been excluded." Id. at 

17-18. He went on to say that because "the GSR testimony was one of only two pieces 

of evidence from which inferences directly tying the defendant to the shootings 

themselves could reasonably be drawn (the other being blood spatter), it would be hard 

to say that an error in admitting the GSR testimony would have been harmless." Id. at 

18.

       During the reference hearing proceedings Stenson's counsel asked Judge 

Williams to additionally decide whether, based on the evidence presented, the State 

had violated Stenson's rights under Brady. Judge Williams declined to answer that 

question on the basis that Brady determinations were outside the scope of this court's 

order.

       In response to our specific questions, Judge Williams determined that, under the 

substantive newly discovered evidence test, the FBI file and photographs would not 

have probably changed the outcome of the trial and the FBI file was not material. 

Significantly, however, he also concluded that, under RCW 10.73.100(1), Stenson and 

his counsel acted with reasonable diligence in discovering the new evidence and in 

filing this PRP.

       After reviewing Judge Williams's findings, we ordered him to conduct a second 

                                               9 

No. 83606-0

reference hearing to determine whether the State had violated Stenson's due process 

rights under Brady. Judge Williams concluded after the second reference hearing that, 

based on the facts above, Stenson satisfied the first two Brady factors, i.e., that the 

evidence was favorable to Stenson and that the State wrongfully suppressed it. He 

went on to conclude, however, that the third Brady factor, prejudice, was not shown. 

                                               II

       A petitioner is generally prohibited from filing a PRP more than one year after 

the judgment becomes final if the judgment and sentence is valid on its face and was 

rendered by a court of competent jurisdiction. RCW 10.73.090(1). That time limit does 

not, however, apply to a PRP that is based solely on grounds set forth in RCW 

10.73.100. One of the grounds set forth in that statute is "[n]ewly discovered evidence, 

if the defendant acted with reasonable diligence in discovering the evidence and filing 

the petition." RCW     10.73.100(1). Stenson's PRP is based on evidence that was 

disclosed to the defense in 2009, thus the evidence is newly discovered.                 Judge 

Williams also properly determined that Stenson and his counsel acted with reasonable 

diligence in discovering that evidence and filing the PRP. See  RHFC at 25-29. 

Stenson, therefore, satisfies the procedural requirements for filing this PRP. 

                                               III

                                               A

       Our court has stated that "'[b]ecause the death penalty qualitatively differs from 

all other punishments, there must be reliability in the determination that death is the 

                                              10 

No. 83606-0

appropriate punishment.'" State v. Woods, 143 Wn.2d 561, 603, 23 P.3d 1046 (2001) 

(quoting State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991)). A court's "'duty to 

search for constitutional error with painstaking care is never more exacting than it is in 

a capital case.'" Kyles v. Whitley, 514 U.S. 419, 422, 115 S. Ct. 1555, 131 L. Ed. 2d 

490 (1995) (quoting Burger v. Kemp, 483 U.S. 776, 785, 107 S. Ct. 3114, 97 L. Ed. 2d 

638 (1987)). The stakes are at their highest when, as here, a petitioner sentenced to 

death claims actual innocence. Indeed, three justices of the United States Supreme 

Court have stated that it "'would be an atrocious violation of our Constitution and the 

principles upon which it is based' to execute an innocent person." In re Davis, ___ U.S. 

___, 130 S. Ct. 1, 2, 174 L. Ed. 2d 614 (2009) (Stevens, J., concurring) (quoting In re 

Davis, 565 F.3d 810, 830 (11th Cir. 2009) (Barkett, J., dissenting)) (transferring case to 

United States District Court to determine whether evidence that could not have been 

obtained at the time of trial clearly established Davis's innocence), cert. denied, 131 S. 

Ct. 1787, 179 L. Ed. 2d 654 (2011).

       The underlying notion behind the United States Supreme Court's decision in 

Brady is that "[s]ociety wins not only when the guilty are convicted but when criminal 

trials are fair." Brady, 373 U.S. at 87. In Brady, the Court held that "the suppression by 

the prosecution of evidence favorable to an accused upon request violates due process 

where the evidence is material either to guilt or to punishment, irrespective of the good 

faith or bad faith of the prosecution." Id. The United States Supreme Court has since 

held that there is a duty to disclose such evidence even when there has been no 

                                              11 

No. 83606-0

request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 49 L. 

Ed. 2d 342 (1976), and that the duty encompasses impeachment evidence as well as 

exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 

L. Ed. 2d 481 (1985). The scope of the duty to disclose evidence includes the 

individual prosecutor's "'duty to learn of any favorable evidence known to the others 

acting on the government's behalf . . . including the police.'" Strickler v. Greene, 527 

U.S. 263, 281, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) (quoting Kyles, 514 U.S. at 

437 (rejecting the State's invitation to adopt a rule that the State "should not be held 

accountable under Bagley and Brady for evidence known only to police investigators 

and not to the prosecutor"), id. at 438). 

       Significantly, "[t]here are three components of a true Brady             violation: The 

evidence at issue must be favorable to the accused, either because it is exculpatory, or 

because it is impeaching; that evidence must have been suppressed by the State, 

either willfully or inadvertently; and prejudice must have ensued." Id. at 281-82. With 

respect to the third Brady      factor, the terms "material" and "prejudicial" are used 

interchangeably. See United States v. Price, 566 F.3d 900, 911 n.12 (9th Cir. 2009). 

       Over time, the United States Supreme Court's explanations of the Brady 

standard have resulted in a decidedly nuanced body of case law. With this in mind, we 

heed that Court's advisement to take into account several aspects of the materiality 

analysis that bear particular emphasis. See Kyles, 514 U.S. at 434. One of the most 

important characteristics is that it is "not a sufficiency of evidence test." Id. (relying on 

                                              12 

No. 83606-0

Bagley, 473 U.S. 667). Thus, a "showing of materiality does not require demonstration 

by a preponderance that disclosure of the suppressed evidence would have resulted 

ultimately in the defendant's acquittal." Id. The question "is not whether the defendant 

would more likely than not have received a different verdict with the evidence, but 

whether in its absence he received a fair trial, understood as a trial resulting in a 

verdict worthy of confidence." Id.

       What, then, must a petitioner show to prove materiality  He or she must show 

"'there is a reasonable probability that, had the evidence been disclosed to the 

defense, the result of the proceeding would have been different.'" Id. at 433-34 (quoting 

Bagley, 473 U.S. at 682 (opinion of Blackmun, J.); id. at 685 (White, J., concurring in 

part, concurring in judgment)). A "'reasonable probability' of a different result is 

accordingly  shown when the government's evidentiary suppression 'undermines 

confidence in the outcome of the trial.'" Id. at 434 (quoting Bagley, 473 U.S. at 678). 

One does not show a Brady violation by demonstrating that some of the inculpatory 

evidence should have been excluded, but rather by showing that the favorable 

evidence could reasonably be taken to put the whole case in a different light. The 

suppressed evidence must be considered collectively, not item by item. 

                                               B

       The first two Brady factors are factual questions, and the "'substantial evidence'"

standard is the standard of review for factual findings in PRP reference hearings. In re 

Pers. Restraint of Gentry, 137 Wn.2d 378, 410, 972 P.2d 1250 (1999) (quoting RAP 

                                              13 

No. 83606-0

16.14(b)). "'Substantial evidence exists when the record contains evidence of sufficient 

quantity to persuade a fair-minded, rational person that the declared premise is true.'" 

Id. (quoting Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 112, 937 P.2d 154, 943 

P.2d 1358 (1997)). We defer to the trial court and will not "disturb findings of fact 

supported by substantial evidence even if there is conflicting evidence." Merriman v. 

Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162 (2010). The third Brady factor, prejudice, 

is a mixed question of law and fact. See Price, 566 F.3d at 907 n.6; see also Summers 

v. Dretke, 431 F.3d 861, 877-78 (5th Cir. 2005). We review mixed questions de novo by 

applying the reference hearing facts to the law and drawing our own legal conclusions. 

In re Pers. Restraint of Brett, 142 Wn.2d 868, 874, 16 P.3d 601 (2001). 

                                                i

       The State assigns error to Judge Williams's findings that the FBI file was 

favorable to Stenson and that the FBI file and photographs were suppressed by the 

State. As we have observed, Judge Williams found that the FBI file is favorable to 

Stenson because, had it been properly disclosed, his counsel could have used it for 
impeachment purposes during Peele's testimony.7 In that regard, Judge Williams stated 

that the GSR test results were admitted into evidence "based on the expert 

qualifications of . . . Peele, without the defense counsel's ability to challenge the expert 

credentials of the actual examiner of the GSR swabs" and that they "could serve to 

impeach the credibility of the results, and potentially undermine the State's argument 

       7"[I]mpeachment evidence" is defined as "[e]vidence used to undermine a 
witness's credibility." Black's Law Dictionary 637 (9th ed. 2009). "[I]mpeach" means to 
"discredit the veracity of (a witness)." Id. at 820.

                                              14 

No. 83606-0

as to the professionalism of its witnesses." Mem. Op. at 6-7. This finding is significant because 

Peele's testimony contained a false implication that he had personally performed the GSR tests. If 

Stenson's trial counsel had known that Lundy performed the GSR tests, they could have 

attempted to undermine the veracity of Peele's testimony. Additionally, they were precluded 

from cross-examining Lundy regarding her qualifications to perform the GSR testing. 

The United States Supreme Court has recognized the potential value in cross-

examining forensic analysts. See Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 

S. Ct. 2527, 2537, 174 L. Ed. 2d 314 (2009) (stating that "[l]ike expert witnesses 

generally, an analyst's lack of proper training or deficiency in judgment may be 

disclosed in cross-examination"). Here, Stenson's counsel was unable to examine 

Lundy because the full FBI file was never disclosed to them -- thus, they were unaware 

of Lundy's involvement with the GSR testing. Moreover, it was not until the full FBI file 

was disclosed that it became clear that only a few particles of GSR were found in 

Stenson's jeans pocket. This fact, therefore, went unexamined at Stenson's trial. We 

will not "disturb findings of fact supported by substantial evidence even if there is 

conflicting evidence." Merriman, 168 Wn.2d at 631. In our view, there is substantial 

evidence to support Judge Williams's finding that the FBI file qualifies as impeachment 

evidence for Brady purposes and that the evidence was favorable to Stenson on the 
issue of guilt.8

                                               ii

       8The State does not claim that Judge Williams erred in finding that the 
photographs are favorable to Stenson. See  Suppl. Br. Addressing Judge Williams' 
Determinations Entered on January 20, 2011, at i.

                                              15 

No. 83606-0

       The State also assails Judge Williams's finding that the State failed to disclose 

the FBI file to Stenson, rendering it "suppressed" for Brady purposes. As noted above, 

Judge Williams determined that "the FBI Lab bench notes relat[ing] to GSR testing 

were not provided to the defense in any meaningful manner even if they were perhaps 

available in Special Agent Peele's briefcase at the time he testified." Mem. Op. at 8.

Judge Williams found in the first reference hearing that "there was no lack of due 

diligence by defense trial counsel or defense counsel on subsequent PRPs in failing to 

discover the full FBI file material." RHFC at 15. There is substantial evidence to support 

Judge Williams's determination that the State suppressed the FBI file under Brady.

       Insofar as Judge Williams's finding that the photographs were suppressed by the 

State is concerned, the State contends that it did not suppress the photographs 

because Walker, the defense investigator, had access to the photographs during his 

meeting with Englert. Judge Williams, however, resolved this factual question in 

Stenson's favor, finding that even if Walker had reviewed the photos, there was no 

disclosure to defense counsel at the time Peele testified or at any other time "that 

something had gone into the pocket. . . . [The fact that Martin put his ungloved hand in 

the pocket] should have been disclosed." Mem. Op. at 7-8. As noted above, Judge 

Williams explained in the first reference hearing findings that because the State did not 

properly disclose that information, it was reasonable for the defense to assume that 

nothing in Englert's possession would have any relevance to GSR or otherwise be 

relevant to the case. 

                                              16 

No. 83606-0

       Judge Williams concluded after the second reference hearing that "the Englert 

photos and the fact of Detective Sergeant Martin's handling of the pants in the manner 

indicated in the photos was 'suppressed' for Brady analysis purposes." Mem. Op. at 8. 

Judge Williams's determination that the photographs were wrongfully suppressed by 

the State is supported by substantial evidence in the record.

                                               iii

       The most significant issue before us is whether the State's failure to disclose the 

evidence prejudiced Stenson. Judge Williams concluded that Stenson was not 

prejudiced. As we have already observed, the question of prejudice turns on our de 

novo review of whether Stenson has shown that the government's evidentiary 

suppression undermined confidence in the outcome of his trial. See Kyles, 514 U.S. at 

434. Stenson has made this showing. 

       Our conclusion that Stenson did suffer prejudice is shaped largely by the fact 

that only two pieces of forensic evidence formed the basis for Stenson's 

conviction -- GSR and blood spatter. Judge Williams concluded after the first reference 

hearing that "[h]ad the ungloved handling and the turning out of the pockets been 

known to the trial court and an appropriate objection made, the GSR testimony would 

have been excluded [at trial]." RHFC at 17-18. Both items of evidence were 

instrumental to the State's case and, since the discovery of the FBI file and 

photographs, cumulative reliability of the forensic evidence in this case has been 

greatly undermined. Had the defense trial team been privy to the suppressed evidence 

                                              17 

No. 83606-0

at issue here, the integrity and quality of the State's entire investigation, evidence 

handling procedures and case presentation would have been called into question. 

Stenson's counsel aptly made this point in its brief addressing Judge Williams's

determinations:

              To rebut claims that the investigation was meticulous, impeccable, 
       and highly professional, Stenson could point to the haphazard and 
       cavalier way in which critical pieces of evidence were treated. He could 
       show that the lead investigator was biased, or suffered from memory 
       problems. He could show that at least one state's expert (Peele) testified 
       misleadingly, implying that he had personally conducted forensic tests 
       when in fact they had been done by a trainee assistant. He could argue 
       that the state had knowingly proffered worthless forensic evidence and 
       then touted it in closing as highly probative of guilt. The mishandling of 
       the pants would serve as a prime example of why the state's evidence, 
       witnesses, and arguments should all be viewed with extreme skepticism.
              Given the opportunity to impeach not only the useless GSR 
       evidence but the state's entire investigation, competent defense counsel 
       would have been able to undermine confidence in the state's case against 
       Stenson. By the end of the trial, one of the key pieces of inculpatory 
       evidence would have been completely neutralized, and the rest of the 
       state's case would have appeared much less solid. 

Pet'r's Br. Addressing Reference Ct.'s Findings of Jan. 20, 2011, at 16-17 (footnotes 

omitted and citations omitted).

       In  Kyles, the United States Supreme Court noted that, had the favorable 

evidence been disclosed to the jury, then the jury would have counted "the sloppiness 

of the investigation against the probative force of the State's evidence. . . . [I]ndications 

of conscientious police work will enhance probative force and slovenly work will 

diminish it." Kyles, 514 U.S. at 446 n.15. Had  the FBI file and photographs been 

properly disclosed here, Stenson's counsel would have been able to demonstrate to 

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the jury that a     key exhibit in the case -- Stenson's jeans -- had been seriously 

mishandled and compromised by law enforcement investigators. It is also likely that 

exposure of the State's mishandling of the jeans with regard to GSR testing would have 

led to further inquiry by Stenson's counsel into possible corruption of the blood spatter 

evidence.  In that regard, Stenson's defense theory at trial could have  taken into 

account the fact that the jeans may have been folded over when the blood spatter was 

wet. Instead, the jury was left with only one explanation for the blood spatter, which was 

that it could not have appeared on Stenson's jeans after Frank came to his final resting 

place. 

       We are left with the fact that constitutionally significant mistakes were made in 

Stenson's trial, resulting in imposition of the ultimate punishment without the full benefit 

of due process protections. The question here is not whether Stenson has proved his 

innocence; that is not his burden under Brady. As the United States Supreme Court 

said in Kyles, "the question is not whether the State would have had a case to go to the 

jury if it had disclosed the favorable evidence, but whether we can be confident that the 
jury's verdict would have been the same." Kyles, 514 U.S. at 453.9 Under Brady and its 

       9The United States Supreme Court recently reiterated the rule it stated in Kyles
in Smith v. Cain, ___ U.S. ___, 132 S. Ct. 627, 181 L. Ed. 2d 571 (2012). In the majority 
decision, which was signed by eight of the nine justices, the Court said that under 
Brady, previously undisclosed "evidence is material if there is a 'reasonable probability 
that, had the evidence been disclosed, the result of the proceeding would have been 
different.'" Smith, 132 S. Ct. at 628-29 (quoting Cone v. Bell, 556 U.S. 449, 469 -- 70, 
129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009)). The Court went on to say that "[a] 
'reasonable probability' means that the likelihood of a different result is great enough to 
'undermine[] confidence in the outcome of the trial.'" Id. at 629 (quoting Kyles, 514 U.S. 
at 434 (alteration in original)). Significantly, Smith's first degree murder conviction was 
reversed by the United States Supreme Court because of the State of Louisiana's 

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progeny, we are to consider whether one juror might have had reasonable doubt that Stenson was 

guilty or deserving of the death penalty if (1) the State had never introduced evidence 

that Stenson's jeans pocket and hand had been in a "shooting environment," Reference

Hr'g Ex. 90, at 1779; (2) the defense team properly impeached the credibility of the 

detectives' investigation techniques and showed the extent to which the law 

enforcement officers mishandled the evidence; and (3) the defense team had the 

benefit of the undisclosed evidence to create a persuasive defense theory of the case. 

Stenson, in our judgment, has met his burden of showing that there is a reasonable 

probability that, had the FBI file and photographs been disclosed to the defense, the 

result of his trial would have been different. Because we believe the newly discovered 

evidence undermines confidence in the jury verdict, we reverse Stenson's convictions 
and death sentence and remand for a new trial.1

                                               IV

       We conclude that the trial court correctly found that the FBI file and photographs 

are favorable to Stenson and that  the evidence was wrongfully suppressed by the 

State. We conclude, as a matter of law, that the suppression of the photographs and

FBI file prejudiced Stenson. Accordingly, we grant Stenson's sixth PRP and reverse his

convictions and death sentence and remand for a new trial.                   Because of our 

failure to disclose to the defense a statement of a material witness that was known to the
State's lead investigator and that conflicted with the trial testimony of the witness. 
       1Because we reverse Stenson's convictions and death sentence on the basis 
that the State violated Brady, we do not address Stenson's argument based on Napue, 
360 U.S. 264, that the State "committed intentional acts of misconduct at trial by 
permitting false and misleading evidence and argument to be presented to the jury." 
Pet'r's Br. Addressing Reference Ct.'s Findings at 20.  

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determination, we dismiss Stenson's fifth PRP as moot.

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Attachment:  http://www.courts.wa.gov/opinions/attachment/836060.pdf

AUTHOR:
        Gerry L. Alexander, Justice Pro 
        Tem.

WE CONCUR:
        Chief Justice Barbara A. Madsen

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Justice Charles K. Wiggins

                                                         Teresa C. Kulik, Justice Pro Tem.

        Justice Mary E. Fairhurst

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