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In re Pers. Restraint of Stenson, No. 83606-0
Dissent by J.M. Johnson, J.

                                         No. 83606-0

       J.M. JOHNSON, J.          (dissenting) -- I respectfully disagree with           the 

majority opinion in this case and would deny Darold Stenson's fifth and sixth 

personal restraint petitions.  A jury heard weeks of testimony and in 1994 

unanimously found Stenson guilty beyond a reasonable doubt of the 

aggravated murder of his wife and business partner.  This court has reviewed 

and affirmed both guilt and sentence over the intervening 18 years.  The trial 

judge, Judge Williams, on two separate remands from this court, held that the 
alleged nondisclosed Brady1 evidence here did not meet the requirement of 

prejudice.  Based on these findings, we must conclude that the elements of 

the Brady test are not met.  Accordingly, we should deny Stenson's fifth and 

sixth personal restraint petitions and uphold his conviction.  The interests of 

finality in justice to provide peace for the families of Stenson's victims argue 

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

In re Pers. Restraint of Stenson, No. 83606-0

for the same result. Thus, I dissent.

A.     Totality of Evidence

       The majority opinion fails to consider the totality of evidence before 

the jury and exaggerates the potential prejudice of a late-discovered photo of 

Stenson's pants with the right pocket pulled out, where some gunshot residue 

(GSR) evidence was found.

       In March 1993, Stenson had arranged for both victims to be at his 

home at 3:30 a.m.  Shortly after the murders, Stenson  made a 911 call 

suggesting that his business partner, Frank Hoerner, murdered Stenson's wife 

and then committed suicide.  However, that account was quickly proven false 

(and there has never been another viable suspect).  The evidence indicated 

that the murder gun  was placed on Hoerner's hand after his death.  The 

evidence at trial also established that Hoerner "had been beaten unconscious, 

dragged into the [Stenson] house from the gravel driveway . . . where he was 

shot in the head at close range."  State v. Stenson, 132 Wn.2d 688, 679, 940 

P.2d 1239 (1997).  Stenson owed Hoerner $50,000 that he could not pay.  

Further, Stenson had insured his wife for more than $400,000.  She was the 

second victim.   These  two  crimes solve Stenson's financial problems, a 

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In re Pers. Restraint of Stenson, No. 83606-0

powerful motive.

       The weapon used to beat Hoerner unconscious outside before he was 

dragged inside and shot was consistent with a missing set of nunchaku sticks 

that were displayed on the wall of  Stenson's office.  Investigation  also 

uncovered Hoerner's blood in the driveway and laundry room and Stenson's 

bloody fingerprint on the freezer inside the house.  There was blood splatter 

on Stenson's pants.  Some of the blood spatter fit Hoerner's blood profile and 

could only have been deposited before Hoerner came to his final resting 

place.  This evidence flatly  contradicted Stenson's claim to the jury that 

Hoerner went voluntarily into the house to use the restroom.

       Moreover, the reliability of the GSR evidence tangentially challenged 

here  had  already  been  impeached  before the jury with  other evidence 

(Stenson had been restrained in the back of a sheriff's car that had been used 

by gun carrying officers).  In light of all these considerations, the "new" 

question  with respect to the GSR evidence cannot meet the Brady

requirement of prejudice.  The trial court decision of a sworn jury and two 

separate reviews by Judge Williams should be upheld.

B.     Overwhelming Blood Spatter and Other Evidence

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In re Pers. Restraint of Stenson, No. 83606-0

       Contrary to the majority's argument, none of the alleged anomalies 

with the GSR evidence significantly impact the reliability of the blood spatter 

evidence or any other evidence presented at trial.  The defense knew that the 

jeans may have been folded over when wet but did not argue this to challenge 

the blood spatter evidence.  It is not likely that other contaminating sources 

for the GSR evidence would have a potent effect.2  Defense had argued the 

exposure in a police car could have caused the contamination.

       While the majority emphasizes the importance of scrutinizing 

convictions with painstaking care, the interests of justice requires some 

balance.  That  system of justice relies on juries to determine guilt or 

innocence and should defer to such decisions.

       The majority also overstates the importance of the GSR evidence, a 

matter of only several grains of powder mentioned only once in passing in all 

this court's prior decisions affirming Stenson's conviction.  The majority also 

fails to present a compelling reason that this alleged Brady evidence meets 

that test's requirement that prejudice be shown, especially given the victim's 

blood spatter on the front of Stenson's jeans and the mountain of other 

2 One last theory is still argued: that the FBI lab in Washington, D.C., was in a building 
with a target range in the basement.  A jury is unlikely to consider this a probable 
contaminant source.
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In re Pers. Restraint of Stenson, No. 83606-0

evidence linking Stenson to the crime.  The jury convicted Stenson after a 

four-week trial, and  Judge Williams, on special remand from this court, 

expressly found that the third Brady requirement of prejudice was not met.  

We should defer to the jury and trial court in its findings of fact and affirm its 

decision on the legal question of prejudice.       Both heard all the evidence; this 

court has heard arguments.  Note too that the victims' families were never 

heard in this court.

       The alleged Brady evidence also does not give rise to a reasonable 

probability that, had the evidence been disclosed earlier, the jury result would 

have been any different.  Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 

1555, 131 L. Ed. 2d 490 (1995) (quoting United States v. Bagley, 473 U.S. 

667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1982)).  In light of the mountain 

of other evidence in this case, four particles of GSR evidence was not a key 

piece of forensic evidence supporting the conviction.  See Stenson, 132 

Wn.2d at 679-80.

       Trial Judge  Williams  expressly  indicated that the blood spatter 

evidence on Stenson's jeans was the most compelling evidence at trial. Even 

without the blood spatter evidence, the circumstantial evidence alone is

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In re Pers. Restraint of Stenson, No. 83606-0

overwhelming.      The majority's decision substitutes its own judgment for 

those who actually heard the facts and  totally  disregards the jury, Judge 

Williams, and the victims of this heinous crime. 

       As a result, the alleged "new" Brady evidence is not sufficient "to put 

the whole case in such a different light as to undermine confidence in the 

verdict."  Kyles, 514 U.S. at 435.  We thus should deny Stenson's fifth and 
sixth personal restraint petitions.3

                                      Conclusion

       I would affirm the jury conviction and Judge Williams' findings of no 

prejudice and deny Stenson's fifth and latest petitions.  The majority fails to 

3 Stenson's fifth personal restraint petition claims ineffective assistance of counsel because 
of the alleged failure on the part of counsel to discover anomalies with respect to the GSR 
evidence.  The Sixth Amendment to the United States Constitution and article I, section 
22 of the Washington Constitution protect the right to effective assistance of counsel in 
criminal cases.  Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. 
Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987).  To 
prevail on an ineffective assistance of counsel claim, the defendant must show not only 
deficient performance on the part of counsel but also prejudice.  Strickland, 466 U.S. at 
687; Thomas, 109 Wn.2d at 226.  We should deny Stenson's fifth petition because Judge 
Williams found that Stenson's counsel acted with reasonable diligence in discovering the 
alleged anomalies with the GSR evidence and in filing Stenson's sixth personal restraint 
petition alleging Brady   and  Napue   violations.  See  majority  at 9.  This finding 
demonstrates that there was no deficient performance on the part of Stenson's counsel.  
Additionally, we should deny Stenson's fifth personal restraint petition because the alleged 
anomalies with the GSR evidence do not give rise to a reasonable probability that, had the 
evidence been disclosed to the defense, the jury would have reached a different verdict.  
See Kyles, 514 U.S. at 433-34.  Thus, the prejudice requirement has not been met under 
Stenson's ineffective assistance of counsel claim or under his Brady claim, and we should 
deny his fifth and sixth personal restraint petitions.
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In re Pers. Restraint of Stenson, No. 83606-0

take the totality of evidence into consideration in its evaluation.  None of the 

alleged anomalies with the GSR evidence affect the credibility of the blood 

spatter evidence or the mountain of other circumstantial evidence that was 

presented against Stenson at trial.  His debts to his business partner and the 

$400,000 insurance proceeds from his wife's death provided motive enough.  

The extraordinary 3:30 a.m. presence of the victims at Stenson's home was 

admittedly arranged only by Stenson.  We should not disregard the Brady 

requirement that prejudice be shown as it is a limited remedy for unfair trials

or improper convictions.  Here, the jury verdict was fair and based on 

overwhelming evidence.  Thus, I would uphold Stenson's conviction and 

leave the victims (families) at peace. I dissent.

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In re Pers. Restraint of Stenson, No. 83606-0

       AUTHOR:

                Justice James M. Johnson

       WE CONCUR:

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