Personal Restraint Petition of Lyle Lowell Hutchins

FILED
SEPTEMBER 3, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DMSION THREE
In the Matter ofthe Personal Restraint )
Petition of: ) No. 27257-5-III
)
LYLE L. HUTCHINS, )
)
Petitioner. ) UNPUBLISHED OPINlON
KORSMO, J. - This personal restraint petition (PRP) attempts to litigate a public
trial violation as if the case was on appeal rather than on collateral attack. Since the
Washington Supreme Court has rejected this approach, we dismiss this petition for failure
to establish prejudice.
FACTS
This case has a lengthy procedural history, primarily due to the evolving area of law
presented by the PRP. On February 3, 2003, four-year-old A.M. was left at the home of
Lyle Hutchins to play with Mr. Hutchins's four-year-old son. An hour later, Mr. Hutchins
returned A.M. to her home. A.M. then told her mother that Mr. Hutchins had touched her
vagina and described a pornographic film that he had shown her. The incident was
immediately reported to the police and charges were soon filed.
At a pretrial hearing, the State presented A.M. as a witness, but she was unable to
take the stand or give any statements. Defense counsel stated that she had been similarly
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unresponsive when he had attempted to interview her previously. The court then found
A.M. to be unavailable to testifY and subsequently admitted hearsay statements she made to
her mother and to a counselor as evidence at trial. During jury selection, the court
conducted private interviews in chambers with a number of the potential jurors concerning
certain juror questionnaire responses.
Later at trial, the prosecutor asked Debra Hutchins, Mr. Hutchins's mother, whether
it would surprise her to learn that her son had told police that A.M. and her father were at
the residence Ms. Hutchins shared with her son on the third of February. Report of
Proceedings (RP) at 567. The court sustained an objection, and the prosecutor rephrased the
question to ask whether it would be correct to state that A.M. and her father came to the
residence that day at around five o'clock, stayed for 45 minutes, and then left. Ms.
Hutchins responded that it would be incorrect, because she was there at 5 :30 and no one else
was there. RP at 568.
The jury subsequently found Mr. Hutchins guilty and he appealed. This court
affirmed his conviction, finding that the trial court did not err in admitting A.M.'s hearsay
statements and excluding evidence of A.M.'s father's criminal history. See State v.
Hutchins, No. 24559-4-111 (Feb. 27, 2007). On July 18,2008, Mr. Hutchins filed the
present PRP, claiming a public trial right violation, among other constitutional violations.
The petition was stayed pending decisions in State v. Strode, 167 Wn.2d 222,217
P.3d 310 (2009), and State v. Momah, 167 Wn.2d 140,217 P.3d 321 (2009). Following
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those decisions, this court lifted the stay and accepted briefing, but then imposed a second
stay pending decisions in State v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012), and In re
Personal Restraint ofMorris, 176 Wn.2d 157,288 P.3d 1140 (2012). In January of2013,
this court again lifted the stay and requested supplemental briefing on the applicability of
the decisions in Wise, Morris, and State v. Paumier, 176 Wn.2d 29,288 P.3d 1126 (2012).
At this point Mr. Hutchins amended his petition to include a claim that appellate counsel
was ineffective for failing to raise the public trial right violation. The petition then was
stayed twice more, and finally lifted following the recent decisions in In re Personal
Restraint ofSpeight, 182 Wn.2d 103,340 P.3d 207 (2014), and In re Personal Restraint of
Coggin, 182 Wn.2d 115,340 P.3d 810 (2014).
ANALYSIS
The petition asserts violations of Mr. Hutchins's constitutional rights to a public trial,
to confront the witness against him, and to a jury trial. We will consider each assertion in
tum. The amendment additionally claims that appellate counsel was ineffective, which we
will address in conjunction with the public trial issue.
Relief will only be granted in a PRP if there is a constitutional error that caused
substantial, actual prejudice or if a nonconstitutional error resulted in a fundamental defect
constituting a complete miscarriage ofjustice. In re Pers. Restraint of Woods, 154 Wn.2d
400,409, 114 P.3d 607 (2005). It is the petitioner's burden to establish this threshold by a
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preponderance of the evidence. In re Pers. Restraint ofLord, 152 Wash. 2d 182, 188, 94 P.3d
952 (2004).
Public Trial Right
Mr. Hutchins has readily established a violation of a constitutional right. Absent an
on the record analysis and justification, questioning of potential jurors in chambers
constitutes an improper courtroom closure in violation of article I, § 22 of the Washington
Constitution. Wise, 176 Wash. 2d at 11. However, Mr. Hutchins presents no evidence of
any actual prejudice resulting from that violation. Rather, he argues that prejudice should
be presumed because public trial right violations are structural errors that, when raised on
appeal, automatically entitle the defendant to a new trial. See id. at 13 -15. The
Washington Supreme Court recently rejected this argument in the PRP context and those
decisions govern here. Speight, 182 Wash. 2d at 107; Coggin, 182 Wash. 2d at 119-122.
Because he has not demonstrated any actual prejudice from the in chambers questioning,
Mr. Hutchins is not entitled to relief.
Recognizing this infirmity, Mr. Hutchins amended his petition to include a claim
that appellate counsel was ineffective for failing to raise the public trial right violation. I
I Mr. Hutchins contends that this court raised the issue sua sponte in our request for
supplemental briefing. Following the initial stay, this court requested briefing concerning
the applicability of three intervening decisions. The fact that one of those decisions was
resolved on ineffective assistance of counsel grounds does not mean that the request for
supplemental briefing added that issue to the current petition. See Morris, 176 Wash. 2d at
166-167.
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However, this amendment came more than four years after the judgment and sentence
became fina1. 2 A collateral attack on a facially valid judgment and sentence, rendered by a
court of competent jurisdiction, is barred if more than one year has elapsed since the
judgment and sentence became final. RCW 10.73.090(1). An amendment to a PRP does
not relate back to the original filing, so new claims must be timely raised. 3 In re Pers.
Restraint ofHaghighi, 178 Wash. 2d 435, 446-447, 309 P.3d 459 (2013). A challenge to the
effectiveness of counsel does not implicate the court's jurisdiction or the facial validity of
the judgment and sentence, nor does it fall within one of the statutory exceptions to the
one-year time bar. 4 In re Pers. Restraint ofAdams, 178 Wn.2d 417,422-423,309 P.3d 451
(2013); RCW 10.73.100. Consequently, this claim is untimely and will not be considered.
Availability ofA.M
Mr. Hutchins contends that the trial court erred in finding A.M. unavailable to testifY
as a precursor to admitting her hearsay statements. First, he argues that the trial court was
The judgment became final on September 29, 2008, when this court issued the
2
mandate on the appeal. See RCW 10.73.090(3).
3 Mr. Hutchins contends, without support, that the procedural rules governing
federal habeas petitions, which allow amendments to relate back, preempt state rules.
4 Mr. Hutchins argues that this court should consider the issue nonetheless,
because the law was unclear when he filed the PRP, invoking the spirit of the exception
for retroactive changes in the law. See RCW 10.73.100(6). This is essentially an
argument that the time bar should be equitably tolled. See In re Pers. Restraint ofBonds,
165 Wash. 2d 135, 196 P.3d 672 (2008). Regardless, this argument is self-defeating. Mr.
Hutchins cannot simultaneously argue that the law relating to public trial rights was clear
enough that appellate counsel's performance was deficient for failing to raise the issue,
but so unclear that he could not have known of that deficiency.
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statutorily required to conduct a separate competency or availability hearing. However,
RCW 9A.44.120 merely requires certain determinations be made outside the presence of the
jury. The trial court determined that A.M. was unavailable during the pretrial hearing on
the admissibility of her hearsay statements. There is no statutory requirement that an
additional determination of unavailability be made at trial.
Next, Mr. Hutchins argues his right to confrontation was violated when the trial
court found A.M. unavailable without exploring the possibility of having A.M. give
testimony by closed-circuit television. See RCW 9A.44.150. A witness can only be
considered unavailable where the State has made a good faith effort to obtain the
witness's presence at trial. State v. Ryan, 103 Wash. 2d 165, 170,691 P.2d 197 (1984).
Where there is evidence that a child victim may be able to testify by alternative means,
the State must utilize its available options to secure that testimony. State v. Smith, 148
Wash. 2d 122, 136, 59 P.3d 74 (2002).
Here, there is no evidence that A.M. might have been able to testify by alternative
means. The fact that she made the original hearsay statements to her mother and a
counselor does not indicate that she would have been responsive to counsel in an
alternative setting. To the contrary, defense counsel conceded that A.M. was
unresponsive during his previous attempts to interview her. RP at 168. As a result, the
State satisfied its good faith obligation by presenting A.M. at the pretrial hearing, and the
court did not err in finding her unavailable to testify.
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Jury Trial Right
Mr. Hutchins contends that his constitutional rights were violated when the
prosecutor elicited testimony from his mother characterizing him as a liar. Testimony
concerning the veracity of another witness is improper since it invades the province of the
jury. State v. Padilla, 69 Wash. App. 295, 299, 846 P.2d 564 (1993). The State argues that
the testimony was acceptable because it did not state whether a particular witness was
truthful, but merely whether the witness was correct. See State v. Ramos, 164 Wn. App.
327,334,263 P.3d 1268 (2011); State v. Wright, 76 Wash. App. 811, 822, 888 P.2d 1214
(1995). Mr. Hutchins replies that this distinction is irrelevant, and that a statement that
another witness is incorrect is a statement as to the veracity of that witness. See State v.
Walden, 69 Wash. App. 183, 186-187,847 P.2d 956 (1993). However, we need not
address these arguments because the testimony did not actually state that another witness
was incorrect, much less lying.
Ms. Hutchins testified that it would be incorrect to say that A.M. and her father
came to the Hutchins's residence at around 5 o'clock and stayed for 45 minutes, because
they were not there when she returned home at 5:30. RP at 567-68. This testimony does
not reference any particular witness, nor did any witness make that statement. 5
Mr. Hutchins did state that A.M. and her father came over and stayed for about
5
45 minutes, but he was unspecific as to the time of the event. RP at 442-444; 589-590.
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Consequently, this testimony did not invade the province of the jury, and there was no
error.
The PRP has not met its heavy burdens of establishing error and resulting
substantial prejudice. The petition is dismissed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Korsmo,p
WE CONCUR:
Brown, A . .1.
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