                                                                         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              )         UNPUBLISHED OPINlON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
No. 27257-5-111
In re Pers. Restraint ofHutchins

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


                                             2

No. 27257-5-111
In re Pers. Restraint ofHutchins

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




                                              3

No. 27257-5-II1
In re Pers. Restraint ofHutchins

preponderance of the evidence. In re Pers. Restraint ofLord, 152 Wn.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 Wn.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 Wn.2d at 107; Coggin, 182 Wn.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 Wn.2d at
166-167.

                                                4

No. 27257-5-II1
In re Pers. Restraint ofHutchins

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 Wn.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 Wn.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.

                                              5

No. 27257-5-111
In re Pers. Restraint ofHutchins

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 Wn.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

Wn.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.


                                               6

No. 27257-5-111
In re Pers. Restraint ofHutchins

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 Wn. 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 Wn. 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 Wn. 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.

                                              7

No. 27257-5-II1
In re Pers. Restraint ofHutchins

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.




                                              8

