IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint 

Petition of:

DANIEL S. AMADOR, II,

 Petitioner.

No. 83262-0-I

DIVISION ONE

UNPUBLISHED OPINION

CHUNG, J. — Daniel Amador was convicted of several sex offenses 

stemming from long-term sexual abuse of his daughter A.A. In this personal 

restraint petition (PRP), Amador raises several claims relating to jury selection, 

including that the trial court misapplied General Rule (GR) 37, erred by granting 

the State’s peremptory challenges to two potential jurors of color, and violated his 

public trial rights by discussing and excusing a juror in a closed proceeding. He 

also alleges ineffective assistance of appellate counsel for failing to challenge the 

GR 37 rulings. Finally, Amador alleges trial counsel provided ineffective 

assistance by failing to impeach principal witnesses and failing to present 

additional witnesses and certain evidence. We determine that Amador’s claims 

lack merit. Therefore, we deny his personal restraint petition. 

FACTS

The facts underlying Daniel Amador’s convictions from which he seeks 

relief are set out in our opinion affirming the convictions on direct appeal. State v. 
No. 83262-0-I/2

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Amador, No. 78801-9-I, slip op. at 4-5 (Wash. Ct. App. June 15, 2020) 

(unpublished), 

https://www.courts.wa.gov/opinions/pdf/788019%20orderopinion.pdf. There, we 

described the trial testimony and the procedural facts:

Amador served as a Seattle Police Department officer for 21 

years. Amador and his first wife Melanie had two daughters, A.A. 

and C.A. . . . Amador frequently demeaned, belittled, and 

disrespected Melanie. As a form of disciplining the children, 

Amador often used a common police “takedown technique” known 

as “pinning.” “Pinnings” involved “hold[ing] the girls down by their 

arms so they couldn’t get up.”

. . .

In October 2014, Melanie learned Amador was having an 

affair. At that time, Amador moved in with his girlfriend Shannon. 

Amador and Melanie divorced in December 2015. Amador married 

Shannon in July 2016 and shortly thereafter, they had a daughter 

together.

. . .

The State charged Amador with one count of domestic 

violence child molestation of A.A. in the first degree, one count of 

domestic violence child rape of A.A. in the second degree, one 

count of domestic violence child rape of A.A. in the third degree, 

and one count of incest with A.A. in the first degree. The State also 

charged Amador with one count of domestic violence child 

molestation of C.A. in the third degree. Amador moved to sever the 

counts related to A.A. from the count related to C.A. The trial court 

granted his motion to sever.

During trial, several witnesses testified about the overly 

affectionate relationship between Amador and A.A. Family friend 

Sandra McLaughlin testified that Amador and A.A. did not seem to 

have a “healthy relationship.” Sandra said Amador had an 

“infatuation” with A.A. and “everything revolved around only” her. 

Melanie testified similarly, saying Amador was “obsessed” with 

A.A., starting from the time she was 4 years old. Amador would buy 

A.A. whatever she wanted and take only her on what he called 

“dates.” He often described A.A. as beautiful or “hot.” Melanie said 

that when A.A. turned 8 or 9 years old, Amador began showering 

with her. He continued this until A.A. moved out of the house at 19 
No. 83262-0-I/3

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years old. Melanie testified that she tried to confront Amador but he 

would not listen to her. She also testified that Amador would “make” 

A.A. take naps with him in his bed while he was nude. Although 

Melanie felt uncomfortable with this behavior, she never told 

anyone. When CPS became involved, Melanie minimized her 

concerns out of fear of losing her children.

C.A. also testified about her perceptions of the relationship 

between her father and A.A. Amador often told C.A. that A.A. was 

smarter and better behaved. He gave A.A. presents, took her on 

trips and outings, and “always had her by his side.” C.A. testified 

that Amador showered with A.A. “[a]ll the time” from age eight or 

nine until A.A. moved out of the house during college. C.A. testified 

that Amador used the pinning technique on both her and A.A., but 

when he pinned A.A., it was usually in his bedroom with the door 

closed. C.A. said A.A. and Amador sometimes spent hours in his 

bedroom and when C.A. tried to enter the room, she found the door 

blocked by a dresser.

. . .

A.A. testified about her relationship with Amador. A.A. said 

Amador treated her far better than her mother or sister. He bought 

her gifts and took her out on what he referred to as “dates,” 

including nice restaurants, shopping, and the theater. She also 

described pinnings from an early age. A.A. said the pinnings 

occurred “usually every day.” When she was 9 years old, Amador 

would pin her on his bed and put his hand on her breast or bottom 

and “just talk.” He also started “coming into the bathroom while 

[she] was showering” and getting into the shower with her. Amador 

would make her touch his penis “in his bedroom or in the 

bathroom.” A.A. testified that by age 11, Amador was touching her 

genitals and performing oral sex on her. Amador also forced A.A. to 

perform oral sex on him and give him “handjob[s].” At age 12, the 

sexual abuse escalated to anal sex.

. . .

The jury found Amador guilty on the four counts related to 

A.A. Amador then entered an Alford1 plea to an amended charge of 

fourth degree assault of C.A. with sexual motivation. The court 

imposed a concurrent indeterminate sentence at the high end of the 

standard sentencing range of 280 months to life.

 1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
No. 83262-0-I/4

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Amador, No. 78801-9, slip op. at 1-6.

Amador appealed the four convictions related to A.A. Id. at 6. We affirmed 

his conviction on direct appeal. Amador timely filed a PRP, and this court 

appointed counsel. 

DISCUSSION

In a PRP, the appellate court will grant relief to a petitioner who is subject 

to unlawful restraint. RAP 16.4(a). The restraint is unlawful if it violates the 

Constitution of the United States or the Constitution or laws of the State of 

Washington. RAP 16.4(c)(2). Relief by way of a collateral challenge to a 

conviction is extraordinary, and a petitioner must meet a high standard before 

this court will disturb an otherwise settled judgment. In re Pers. Restraint of 

Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). For a PRP based on a 

constitutional error, a petitioner must show a constitutional error occurred and the 

error resulted in actual and substantial prejudice. In re Pers. Restraint of 

Williams, 198 Wn.2d 342, 353, 496 P.3d 289 (2021).

Amador alleges constitutional errors stemming from the trial court’s 

implementation of GR 37 during jury selection, ineffective assistance of appellate 

counsel, and ineffective assistance of trial counsel. 

I. Trial Court’s Implementation of GR 37

In his initiating petition, Amador raises various “structural issues” 

pertaining to jury selection. First, he claims the trial court misapplied GR 37 by 

requiring the party making a peremptory challenge to request a preemptive GR 
No. 83262-0-I/5

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37 analysis, rather than waiting for the party opposing the peremptory to 

challenge it. He also claims structural error because the court limited GR 37 to 

“recently” oppressed groups. We disagree that these claims constitute structural 

error warranting relief.

A defendant has the right to a fair and impartial jury as well as the right to 

a trial process free from discrimination. State v. Tesfasilasye, 200 Wn.2d 345, 

356, 518 P.3d 193 (2022) (citing U.S. CONST. amend. VI; CONST. art. I, § 22).

“The constitutions require nothing else, but tradition, statutes and court rules 

created peremptory challenges.” Id. “GR 37 was an attempt to address the 

shortcomings of Batson[2],” id. at 357, and its stated purpose is “to eliminate the 

unfair exclusion of potential jurors based on race or ethnicity.” GR 37(a). “But 

there is no right to a peremptory challenge under either the United States 

Constitution or the Washington Constitution, so the erroneous loss of a 

peremptory challenge does not undermine the fundamental judicial process,” and 

is not per se reversible error. State v. Booth, 22 Wn. App. 2d 565, 581-82, 510 

P.3d 1025 (2022) (trial court erroneously sustained State’s GR 37 challenge to 

defendant’s attempt to exercise peremptory challenge, but denial of peremptory 

was not per se reversible error).

Under the established procedure in GR 37(c), either the opposing party 

may object to a peremptory challenge on the grounds of improper bias or the trial 

court may raise its own objection. In this case, the trial court instead stated that 

 2 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
No. 83262-0-I/6

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the party making the peremptory challenge against “somebody who is obviously 

a person of color or of ethnicity other than white” should announce they had a 

motion to allow for discussion.3 This procedure was in fact more protective than 

GR 37(c) requires, as it expanded the GR 37 consideration of potential bias to all

peremptories used against protected jurors, rather than only when challenged by 

the opposing party or sua sponte by the court. Amador provides no legal 

authority or argument as to why providing protections beyond GR 37’s 

requirements was error. 

Amador also claims the trial court’s statement that GR 37 was focused “on 

people who have been victims of discrimination recently” was per se prejudicial.

The State concedes that GR 37 applies to any peremptory challenge where race 

or ethnicity could have been a factor. However, Amador has not shown that the 

court’s misinterpretation of GR 37 resulted in any improperly granted peremptory 

challenges. Even an “erroneous denial of a peremptory challenge merely results 

in ‘the improper seating of a competent and unbiased juror.’ ” Booth, 22 Wn. App. 

2d at 584 (quoting Rivera v. Illinois, 556 U.S. 148, 162, 129 S. Ct. 1446, 173 L. 

Ed. 2d 320 (2009)).

The record contains evidence as to the race or ethnicity of only jurors 88, 

12, and 63. Juror 88 was struck for cause on Amador’s motion and without 

 3 Amador clarified the trial court’s process: “So any time somebody wants to bring a 

peremptory challenge against somebody who appears to be a member of a suspect class, what 

they do is turn to you and say, ‘I have a motion.’ ” The court confirmed this understanding of the 

process. 
No. 83262-0-I/7

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objection by the State. Both juror 12 and juror 63 were the subject of GR 37 

motions. Amador fails to show any jurors were erroneously struck because of the 

trial court’s interpretation of the rule. 

Amador has not established that the trial court’s misinterpretation of GR 

37, either as to process or as to whom it applies, resulted in any error.4

II. Ineffective Assistance of Appellate Counsel

Amador asserts several instances of ineffective assistance of appellate 

counsel. The Sixth Amendment to the United States Constitution and article I, 

section 22 of the Washington Constitution guarantee the right to effective 

assistance of counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). 

Therefore, a claim of ineffective assistance of counsel raises an error of 

constitutional magnitude. In re Pers. Restraint of Hopper, 4 Wn. App. 2d 838, 

843, 424 P.3d 228 (2018). 

To succeed on a claim of ineffective assistance of appellate counsel, the 

petitioner must demonstrate that defense counsel’s representation fell below 

an objective standard of reasonableness and the deficient representation 

resulted in prejudice. In re Pers. Restraint of Morris, 176 Wn.2d 157, 166, 288 

P.3d 1140 (2012). Prejudice requires that “there is a reasonable probability 

that except for counsel’s unprofessional errors, the result of the proceeding 

 4 Amador argues the court’s rulings on GR 37 objections to peremptory challenges to 

jurors 12 and 63 constituted “structural error.” These arguments pertain to the propriety of the trial 

court’s conclusions on the GR 37 objections and are addressed within the context of his 

ineffective assistance of appellate counsel claims below.
No. 83262-0-I/8

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would have been different.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 

1251 (1995).

We need not consider both deficiency and prejudice if a petitioner fails 

to prove one. In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 

1102 (2012). But if a petitioner demonstrates both deficient representation and 

prejudice, they meet the burden to show a constitutional error that caused 

actual prejudice as required to for a personal restraint petition. Hopper, 4 Wn. 

App. 2d at 843-44. 

A. GR 37 Challenges 

Amador contends that appellate counsel for his direct appeal was 

ineffective by failing to raise two violations of GR 37 that would have led to a new 

trial.

GR 37 applies to all jury trials and aims “to eliminate the unfair exclusion 

of potential jurors based on race or ethnicity.” GR 37(a). “After a [GR 37]

objection has been raised, the party exercising a peremptory challenge is 

required to articulate its reasons for doing so.” State v. Listoe, 15 Wn. App. 2d 

308, 319, 475 P.3d 534 (2020); GR 37(d). “The trial court then evaluates the 

reasons for exercising the challenge under the totality of the circumstances.” Id.; 

GR 37(e). If “an objective observer could view race or ethnicity as a factor in the 

use of the peremptory challenge, then the peremptory challenge shall be denied.” 

GR 37(e). GR 37(f) defines an “objective observer” as one who “is aware that 

implicit, institutional, and unconscious biases, in addition to purposeful 
No. 83262-0-I/9

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discrimination, have resulted in the unfair exclusion of potential jurors in 

Washington State.” The circumstances that the court should consider include the 

following:

(i) the number and types of questions posed to the prospective 

juror, which may include consideration of whether the party 

exercising the peremptory challenge failed to question the 

prospective juror about the alleged concern or the types of 

questions asked about it; 

(ii) whether the party exercising the peremptory challenge asked 

significantly more questions or different questions of the potential 

juror against whom the peremptory challenge was used in contrast

to other jurors; 

(iii) whether other prospective jurors provided similar answers but 

were not the subject of a peremptory challenge by that party; 

(iv) whether a reason might be disproportionately associated with a 

race or ethnicity; and 

(v) whether the party has used peremptory challenges 

disproportionately against a given race or ethnicity, in the present 

case or in past cases. 

GR 37(g). Additionally, there are presumptively invalid reasons for a peremptory 

challenge because they have been historically associated with improper 

discrimination in jury selection in Washington State. GR 37(h). The court 

considers these nonexclusive circumstances and keeps in mind that the test is 

whether an objective observer, aware of implicit, institutional, and unconscious 

bias, could view race or ethnicity as a factor. State v. Lahman, 17 Wn. App. 2d 

925, 936, 488 P.3d 881 (2021); GR 37. We review this decision de novo. Listoe, 

15 Wn. App. 2d at 321; Tesfasilasye, 200 Wn.2d at 356 (applying de novo 

standard of review where “there were no actual findings of fact and none of the 
No. 83262-0-I/10

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trial court's determinations apparently depended on an assessment of 

credibility”).

1. Juror 12

The State moved to exercise a peremptory challenge against juror 12, 

who was “pretty obviously” of Asian descent. During voir dire, the State asked 

questions about the potential juror’s expectation of DNA evidence. The State 

inquired “[c]an anybody think of a situation like this where you would not have 

DNA?” Juror 59 answered that molestation did not always have DNA because “it 

may not be a complete act of intercourse . . . .” Juror 89 responded that many 

cases do not get reported immediately after the act preventing DNA collection, 

and “there might be a lot of similarities in DNA.” Then, juror 12 answered, “I think 

another instance of where DNA might not be collected is if all—if all the 

allegations are false and nothing actually happened.” When asked to repeat the 

statement, juror 12 said, “DNA may not have been collected if all these 

allegations are false and nothing happened.” The State responded, “Fair point,” 

and moved on to ask if anyone had more to add to the conversation. 

Later in voir dire, the State explored how the potential jurors decide who to 

believe as witnesses. Juror 12 asked whether the trial would be open to the 

public and clarified the reason for the question, 

The reason I was asking is in regards to -- trying to figure out 

if someone is telling the truth or not, if there was maybe family 

members in the audience, you would potentially see the reaction of 

the family to what the individual in the booth is saying.

Similar to the other jurors, I think consistency amongst all of 

them, they’re saying the same story, that is important.
No. 83262-0-I/11

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The State asked for additional explanation, and juror 12 stated, “if someone was 

up on the court and they’re telling a story that maybe is not in line with what other 

family members are thinking, you might see some kind of reaction from them.” 

The State continued to question juror 12 about this line of thinking:

STATE: So if you saw a reaction out there to something

somebody was saying up there, you would take that to mean that 

what the person who’s up there is saying is not right?

JUROR 12: That’s a potential that it may not be right, or it

could be surprise. There could be a lot of reasons.

STATE: Could it also be that what the people out there are

saying or how they’re reacting is not right?

JUROR 12: Yes.

STATE: Okay. I just want to make sure -- I’m not going to

suggest that’s going to happen, but I want to make sure you are not 

suggesting that somebody else’s reaction to what a witness says 

while you’re listening to them will carry the day in terms of whether 

or not you choose to believe them.

JUROR 12: Correct.

STATE: It’s just one of the things that can be considered.

JUROR 12: Yes.

The State subsequently moved to exercise a peremptory challenge 

against juror 12 and offered its reasoning:

The things that led me fairly early on to consider whether to 

excuse Juror Number 12, the first part was imagining situations 

where there would not be any evidence like DNA, and some people 

said things like well, a delay in reporting. Another juror, I believe 59, 

said molestation might not be the crime that would leave DNA. And 

juror 12 kind of said -- what he said is well, if the allegations are 

false.
No. 83262-0-I/12

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The thing that put me over the hump was when we were

talking about credibility, and the juror said, well, if there are family 

members or something in the audience and they react in a 

particular way, that would lead him -- could lead him to a conclusion 

about the believability of what the witness on the witness stand was 

saying.

I followed up with some questions about that. I don’t 

remember exactly what they were, but the fact that that was 

something that occurred to him, the visible reaction of people who 

might be in the audience to something the witness is saying as 

indicative of their credibility, caused me concern in a case where

we’re not going to have any DNA, and we’ve got a juror who thinks 

that’s one of the reasons that could mean innocence, and where 

there may be family members or supporters in the courtroom.

That was my thinking with respect to Juror Number 12.

The trial court considered the GR 37 factors, determined that none of the 

presumptively invalid reasons applied, and granted the State’s peremptory 

challenge. 

The State’s challenge to Juror 12 was its first peremptory. The record 

shows that the jury venire included several African American and Asian American 

potential jurors. The questions asked of juror 12 were no different in type or 

number than those asked of the other jurors. However, in answer to the question 

about when there might not be DNA evidence, where others responded that 

delayed reporting of sexual abuse or the type of abuse at issue would impact the 

presence of DNA, juror 12 alone made the observation that DNA might not exist 

because allegations were fabricated during a discussion. This was a unique 

answer to the State’s question, and the State asked the juror to repeat the 

response before moving on.
No. 83262-0-I/13

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Likewise, juror 12’s observation that body language and reactions from 

spectators might influence their opinion on witness credibility was within a larger 

discussion of how jurors would evaluate credibility. The State asked follow-up 

questions of several jurors, in addition to juror 12, to probe their views on 

credibility. Again, juror 12’s answer was unique, so the State posed additional 

questions in order to understand the perspective. The State asked, “[c]ould it also 

be that what the people out there are saying or how they’re reacting is not right?” 

to which juror 12 responded, “yes.” The State wanted to ensure juror 12 was not 

“suggesting that somebody else’s reaction to what a witness says while you’re

listening to them will carry the day in terms of whether or not you choose to 

believe them.”

As a result of this exchange, Amador claims juror 12’s answers “were 

logical and reasonable and suggested no bias against the State” such that the 

reasons for the peremptory challenge were “vague and unsubstantiated.” But 

juror 12 never disavowed the idea that spectator body language could influence

their assessment of credibility, agreeing that “it’s just one of the things that can 

be considered.” And, as the State notes, such reliance on spectator body 

language would be juror misconduct due to consideration of extrinsic evidence. A 

jury may not consider information outside the evidence admitted at trial. State v. 

Pete, 152 Wn.2d 546, 552, 98 P.3d 803 (2004). Such consideration of extrinsic 

evidence would be reversible error. Id. 
No. 83262-0-I/14

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In making its challenge, the State did not cite any of the presumptively 

invalid reasons listed in GR 37(h), reasons disproportionately associated with 

race or ethnicity, or any reasons historically associated with improper 

discrimination in jury selection in GR 37(i).5 The State clearly articulated that juror 

12 expressed concerning opinions on cases without DNA evidence and about 

consideration of external signals from spectators in assessing witness credibility. 

In light of the reasons cited for the State’s peremptory, and the lack of reasons 

signaling possible discrimination, an objective observer could not view bias as 

the basis for the peremptory against juror 12. Accordingly, the trial court properly 

denied the GR 37 objection to the State’s peremptory challenge to juror 12.

Because the trial court properly denied the GR 37 objection regarding 

juror 12, raising the issue on direct appeal would not have resulted in a new trial. 

Therefore, appellate counsel’s failure to raise the issue was not deficient. Due to

Amador’s failure to prove counsel was deficient, we need not consider prejudice

and conclude counsel was not ineffective. See Crace, 174 Wn.2d at 847.

 5 These reasons include: 

(i) having prior contact with law enforcement officers; 

(ii) expressing a distrust of law enforcement or a belief that law enforcement officers 

engage in racial profiling; 

(iii) having a close relationship with people who have been stopped, arrested, or 

convicted of a crime; 

(iv) living in a high-crime neighborhood; 

(v) having a child outside of marriage; 

(vi) receiving state benefits; and

(vii) not being a native English speaker.

GR 37(h)(i)-(vii).
No. 83262-0-I/15

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2. Juror 63

During voir dire, the parties questioned jurors about their ability to remain 

unbiased in a case with allegations against a family member. Juror 63 stated:

Usually people are biased in a way or have their own 

opinion, but in a way, this subject matter is sensitive. But for me, I

feel like there’s always so many -- like, I don’t know anything about 

the case. There’s always a probability that if it’s a family member or 

something like that, there can be a misunderstanding.

There’s always many things to look at and many things to 

analyze. So though maybe it’s a very sensitive subject, but also, 

there’s a lot of things to see why the defendant was accused or 

why. There’s always a reason for it.

Later, when discussing how potential jurors assess credibility, juror 63 mentioned 

the need for consistency:

JUROR 63: I think -- I think the mic is off.

But for me, I think if I’m sitting where I have to judge both 

parties, I have to see how consistent it is, like the other juror was 

saying, because -- see if their --

THE BAILIFF: If you touch the bottom, it turns off.

JUROR 63: I feel -- I deeply feel at a certain point that the

story or their testament of both sides is very consistent, because 

along the way if something changes, and I would feel either they’re 

making it up or it’s -- something has changed their mind.

But if they’re consistent and throughout whatever they’re 

saying, and you can see that it’s sincere, you can sort of see by 

their body language, the words they use, the way they look.

Later, the State moved to use a peremptory challenge against juror 63 due to the 

comment about credibility:

The State’s reason for excusing her was a comment that she made

regarding assessing credibility, and what she said was she has to 

see, I feel -- I deeply feel that -- and it’s sort of unintelligible, but I 

deeply feel their story testament, both sides, is very consistent.
No. 83262-0-I/16

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Because if their story changes, then I feel like they’re making it up 

or something changed their mind.

That concerned me in a case involving such a protracted 

period of time of allegations, so many different interviews that have 

been conducted. She seemed to be more focused on a sort of 

consistency over a period of time that the State believes is possible 

[sic] in any situation and certainly not this one.

Amador declined to challenge the State’s use of the peremptory, but the court 

undertook a GR 37 analysis as part of its independent duty because juror 63 

appeared to be of Asian descent. The court granted the peremptory after its 

evaluation. 

In this PRP, Amador raises that juror 63 was the second juror of Asian 

descent challenged by the State. He also points out that the State referred to 

juror 63’s statement as “it’s sort of unintelligible,” which resonates with one of the 

reasons historically associated with discrimination in jury selection in GR 37(i). 

GR 37(i) prohibits peremptories that rely on certain “conduct” or 

“behavior” that has “historically been associated with improper discrimination in 

jury selection in Washington State.” One type of such conduct is that the 

prospective juror “provided unintelligent or confused answers.” GR 37(i). 

Here, however, the State relied on the substance of juror 63’s statement, 

not her conduct or behavior. The State repeated juror 63’s answer and explained 

the substantive concern about her method of assessing credibility. This 

peremptory was not because juror 63 provided “unintelligent or confused 

answers,” but due to her clearly stated “deep feeling” that consistency was 

important or the witness might have made up the story.
No. 83262-0-I/17

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The State acknowledged that juror 63 was the second juror of Asian 

descent challenged. However, the State noted that the panel included at least 

one other Asian-American juror, an African-American juror, and a Native 

American juror in an alternate chair, none of whom it intended to challenge. 

While other jurors expressed a similar opinion that consistency is important for 

credibility, none of them expressed that they “deeply feel” the importance of 

consistency “because along the way if something changes, and I would feel 

either they're making it up,” as did juror 63.

Given the State’s explanation and an evaluation of the other factors, an 

objective observer could not view discrimination as the reason for the peremptory 

challenge. The trial court’s decision to grant the peremptory challenge was not 

erroneous, so challenging it on direct appeal would not have resulted in a new 

trial. Therefore, appellate counsel’s failure to raise the GR 37 issue regarding 

juror 63 was not deficient. Amador’s ineffective assistance of counsel claim on 

this basis fails.

B. Right to Open and Public Trial

Amador also claims he received ineffective assistance because appellate 

counsel failed to assert that his constitutional right to a public trial was violated 

when the parties and the court discussed and decided to excuse juror 88 for 

cause during a “closed proceeding.” 

During voir dire, Amador asked whether any members of the venire felt 

they could not put their emotional reactions aside in a case involving allegations 
No. 83262-0-I/18

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of child sexual abuse and incest. Juror 88 responded that she was raised in Latin 

America and Venezuela and “you don’t trust policemen. You grow up not to trust 

military or policemen. So I [am] not sure if I can completely overcome that.” She 

also explained, “[i]t’s very common that you have an uncle that touch[es] you.

And that happened to my sister, that happened to my cousins, that happened to 

myself. And it’s not an uncommon thing in [a] Latino family that you have 

somebody that have that kind of behaviors [sic].” After a few questions to clarify 

whether she could be fair to both sides, juror 88 said, “I think at this point, with 

[the] information that I have, it would be hard for me to put that aside.” Juror 88 

agreed “it is still possible” for her to put her issues aside for the case. However, 

when Amador asked, “Are those things you’re going to be able to put aside to the 

extent that you find out that anyone involved in this case is Hispanic or Latino?” 

juror 88 stated, “[t]hat may highly influence my opinion.”

Later, outside the presence of the jury panel, Amador raised the possibility 

of developing a challenge to juror 88 for cause and requested a chance to 

individually question her. The trial court noted it “was expecting the motion.” After 

more discussion about Amador’s proposed additional voir dire, the court asked 

whether defense counsel still wanted to go ahead with additional questioning of 

juror 88. Noting juror 88 had said it would be “[d]ifficult but possible” to set aside 

her preconceptions about Hispanic and Latino families, the court stated, “So I’ll 

grant that challenge for cause to 88.” The State expressed confusion because a 

challenge had not yet been made. The court then told the parties to confirm 
No. 83262-0-I/19

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whether there would be a challenge for cause and took a recess. Upon return 

from recess, the court resumed the discussion:

THE COURT: I understand challenge to 88, no State objection?

STATE: Correct, your Honor.

THE COURT: Granted.

The jury panel was brought back in, juror 88 was excused, and voir dire 

continued until a jury was empaneled. 

A criminal defendant has a federal and state constitutional right to a public 

trial. U.S. CONST. amend. VI; WASH. CONST. art. I, §§ 10, 22; State v. Whitlock, 

188 Wn.2d 511, 519, 396 P.3d 310 (2017). When a public trial violation is raised 

for the first time in a PRP, the petitioner must show actual and substantial 

prejudice, unless it is raised through an ineffective assistance of counsel claim. In 

re Pers. Restraint of Rhem, 188 Wn.2d 321, 329, 394 P.3d 367 (2017). If 

appellate counsel failed to raise a public trial right claim and prejudice would 

have been presumed on direct review, the petitioner is entitled to relief on 

collateral attack. In re Pers. Restraint of Salinas, 189 Wn.2d 747, 759, 408 P.3d 

344 (2018). “[P]roving deficient performance necessarily requires proving that 

counsel should have known to raise the public trial right issue on appeal.” Morris, 

176 Wn.2d at 167.

To determine whether a defendant’s public trial right has been violated, 

“the court engages in a three-part inquiry: ‘(1) Does the proceeding at issue 

implicate the public trial right? (2) If so, was the proceeding closed? And (3) if so, 
No. 83262-0-I/20

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was the closure justified?’ ” Whitlock, 188 Wn.2d at 520 (quoting State v. Smith, 

181 Wn.2d 508, 521, 334 P.3d 1049 (2014)). Whether the right to a public trial 

has been violated is a question of law reviewed de novo. State v. Lormor, 172 

Wn.2d 85, 90, 257 P.3d 624 (2011).

It is well established that the public trial right attaches to juror challenges. 

State v. Schierman, 192 Wn.2d 577, 609, 438 P.3d 1063 (2018). “Conducting 

them in open court, where the public can monitor the parties’ use of challenges, 

thus contributes to the fairness of the proceedings and promotes confidence in 

the judiciary.” Id. at 609-10. The parties do not dispute that Amador’s public trial 

right applied to the for-cause challenge of juror 88.

Instead, the parties disagree as to whether the proceeding was closed. 

“[A] ‘closure’ of a courtroom occurs when the courtroom is completely and

purposefully closed to spectators so that no one may enter and no one may 

leave.” Lormor, 172 Wn.2d at 93. Closure also occurs when a portion of a trial is 

held someplace inaccessible to spectators. State v. Love, 183 Wn.2d 598, 606, 

354 P.3d 841 (2015). Safeguards for the right to public trial “come into play when 

the public is fully excluded from proceedings within a courtroom.” Lormor, 172

Wn.2d at 92.6

 6 Even if an unjustified closure implicates a public trial right, the error may be de minimis, 

such that it “did not fundamentally taint the process by which the court established the facts 

necessary to assemble the jury or decide the case.” Schierman, 192 Wn.2d at 612 (where trial 

court discussed and ruled on challenges for cause in chambers with parties, court found the 

closure de minimis because the proceeding involved no juror questioning, witness testimony, or 

presentation of evidence).
No. 83262-0-I/21

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Here, the trial court did not close the courtroom to spectators. Rather, the 

record contains the parties’ and the court’s discussion of the challenge to juror 

88. After defense counsel alerted the trial court that Amador planned to develop 

a challenge for cause, the parties and the court discussed the reasons to 

challenge juror 88 for cause, and the court granted the challenge, although 

prematurely. The court then asked the parties to “confirm” that there was a 

challenge for cause and that the State did not object, before going into recess. 

Upon return from recess, the court confirmed on the record that there was a 

challenge to juror 88 for cause and the State did not object, and then granted the 

challenge. Therefore, Amador cannot show a courtroom closure that violated his 

right to public trial. 

Amador cannot demonstrate that he would have prevailed on a public trial 

violation claim on direct review. As a result, appellate counsel’s failure to raise 

the issue was not deficient. No consideration of prejudice is required. See Crace, 

174 Wn.2d at 847. Amador’s ineffective assistance of appellate counsel claim 

fails on this ground.

III. Ineffective Assistance of Trial Counsel

Amador asserts he received ineffective assistance because trial counsel 

failed to impeach principal witnesses and failed to present additional witnesses 

and certain evidence. The standard for ineffective assistance of trial counsel is 

the same as ineffective assistance of appellate counsel. The petitioner must 

demonstrate deficient performance and resulting prejudice. McFarland, 127 
No. 83262-0-I/22

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Wn.2d at 334-35. Deficiency requires that counsel’s performance fell below an 

objective standard of reasonableness based on consideration of all 

circumstances. In re Pers. Restraint of Hutchinson, 147 Wn.2d 197, 206, 53 

P.3d 17 (2002). “[A] petitioner must show that counsel’s deficiency was ‘so 

serious as to deprive the defendant of a fair trial.’ ” In re Pers. Restraint of

Elmore, 162 Wn.2d 236, 252, 172 P.3d 335 (2007) (quoting Strickland v. 

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

We begin with a presumption that counsel was effective. Hutchinson, 

147 Wn.2d at 206. We also presume that counsel’s decisions constituted 

sound trial strategy. Elmore, 162 Wn.2d at 252. “When counsel's conduct can 

be characterized as legitimate trial strategy or tactics, performance is not 

deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). “The 

defendant alleging ineffective assistance of counsel ‘must show in the record 

the absence of legitimate strategic or tactical reasons supporting the 

challenged conduct by counsel.’ ” Hutchinson, 147 Wn.2d at 206 (quoting 

McFarland, 127 Wn.2d at 336, 899 P.2d 1251 (1995)). The relevant question is 

whether counsel’s choices were reasonable. Grier, 171 Wn.2d at 34.

A. Failure to Impeach Witnesses

Amador claims trial counsel failed to impeach the State’s principal 

witnesses, A.A. and her mother, Amador’s ex-wife, Melanie.7 Generally, the 

 7 To avoid confusion, we refer to Melanie Amador by her first name, Melanie. No 

disrespect is intended. 
No. 83262-0-I/23

23

extent of cross-examination is a matter of judgment and strategy, and decisions 

during cross-examination will not support a claim for ineffective assistance if 

counsel’s performance fell within the range of reasonable representation. State v. 

Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007) (citing In re Pers. Restraint 

of Davis, 152 Wn.2d 647, 720, 101 P.3d 1 (2004)). “Moreover, in order to 

establish prejudice for the failure to effectively cross-examine a witness, the 

defendant must show that the testimony that would have been elicited on crossexamination could have overcome the evidence against the defendant.” 

Johnston, 143 Wn.2d at 20. 

1. Cross-Examination of Melanie

A contested issue was why Melanie did not report Amador’s unusual 

treatment of A.A. Melanie testified that Amador was controlling and she feared 

him. Melanie occasionally felt uncomfortable with Amador’s treatment of A.A., but 

when she raised the issue he laughed at her. Melanie did not persist in 

expressing her concerns to Amador or anyone else. 

According to Amador, “Melanie’s testimony characterizing herself as a 

hapless weakling was very damaging to the defense because it offered the jury 

an explanation for why she did not prevent or stop [Amador] from abusing A.A.” 

Before trial, Amador provided his counsel with evidence that purported to rebut 

Melanie’s descriptions of “her place in the family dynamics” and show that she 

was not “too pathetic to have reported the alleged abuse.” He acknowledges 

counsel used “some” of this information to “rebut the implication that Melanie 
No. 83262-0-I/24

24

Amador was incapable . . . of being able to seek out help for her daughters when 

they needed it.” However, Amador complains that counsel did not impeach 

Melanie with evidence that she had provided different answers during her 

defense interview.

During Melanie’s cross-examination, trial counsel sought to ask questions 

about Melanie’s efforts to obtain mental health treatment for her other daughter, 

C.A., to rebut Melanie’s ineffectualness. “[T]he State just went to great lengths to 

show that, you know, Melanie Amador is someone who was so beaten down that 

she couldn’t possibly get it together to get her daughters help with they needed it. 

And yet, here she is” getting help for her other daughter. The court allowed trial 

counsel to pursue this line of questioning. Trial counsel then juxtaposed that 

Melanie did not “shy away” from getting help for C.A., with acknowledgment that 

she never expressed her concerns about Amador’s treatment of A.A.

Cross-examination may not have been as robust as Amador wished. 

“However, even a lame cross-examination will seldom, if ever, amount to a Sixth 

Amendment violation.” In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 965 

P.2d 593 (1998). Here, trial counsel effectively demonstrated that Melanie was 

capable of helping her daughters when necessary. Counsel’s efforts fell within 

the range of reasonable representation. Additionally, Amador has not shown that

more evidence of Melanie’s competence could have overcome the evidence 

against him. See Johnston, 143 Wn. App. at 20 (“in order to establish prejudice 

for the failure to effectively cross-examine a witness, the defendant must show 
No. 83262-0-I/25

25

that the testimony that would have been elicited on cross-examination could have 

overcome the evidence against the defendant”). Counsel was not deficient for 

failing to further impeach Melanie. Because Amador cannot establish deficient 

performance, his ineffective assistance of counsel claims fails on this ground.

2. Cross-Examination of A.A.

Amador also faults trial counsel for missing the opportunity to impeach 

A.A. with a prior inconsistent statement. During police and defense interviews, 

A.A. said she confronted her father about the abuse at a Starbucks on the 

Saturday before Easter weekend 2016, and she did not tell C.A. until after the 

confrontation. During trial, A.A. testified that she had disclosed the abuse to C.A. 

prior to confronting her father. Trial counsel did not pursue the discrepancy 

during cross-examination. Amador claims this was one example of counsel’s 

deficiency through “lackluster and incomplete cross-examinations.” 

As noted above, “lame” cross-examinations seldom amount to ineffective 

assistance. See Pirtle, 136 Wn.2d at 489. Here, counsel’s failure to crossexamine A.A. about the timing discrepancy amounts to reasonable trial strategy. 

Counsel’s cross-examination instead focused on A.A.’s previous opportunities to 

report the abuse and the fact that she continued to have a relationship with 

Amador even after leaving home. Counsel questioned A.A. about the Starbucks 

confrontation with Amador only briefly, to verify that nobody else was present at 

the meeting. Counsel’s approach to the meeting was unsurprising considering 

A.A.’s testimony about the meeting was damaging, including that upon 
No. 83262-0-I/26

26

confrontation about the years of sexual abuse and rape, Amador said “I shouldn’t 

have done that . . . I messed up.” Amador also promised her that he would not to 

“do the same thing” to the baby girl he was expecting with his new wife. A.A. 

testified that Amador asked if she was planning to tell anyone else, which “felt 

like he was just asking that because he didn’t want to get in trouble.” 

Given this damaging testimony about the Starbucks meeting, trial 

counsel’s failure to press A.A. about the timing of her disclosure to C.A. can be 

seen as a reasonable strategic decision to avoid revisiting highly damaging 

testimony. Further, C.A. had already testified that A.A. disclosed the abuse after 

Easter. Counsel’s decision not to pursue the discrepancy was within “the range 

of reasonable representation,” Davis, 152 Wn.2d at 720, and will not support a 

claim of ineffective assistance of counsel. 

B. Failure to Call Expert Witnesses

Amador claims trial counsel was ineffective for failing to call expert 

witnesses to respond to the State’s expert witnesses because he ran out of funds 

during trial. “The Sixth Amendment right to effective assistance of counsel 

includes expert assistance necessary to an adequate defense.”8 State v. 

Punsalan, 156 Wn.2d 875, 878, 133 P.3d 934 (2006). However, “[t]he decision to 

 8 Access to experts as needed is governed in CrR 3.1(f): “(1) A lawyer for a defendant 

who is financially unable to obtain investigative, expert, or other services necessary to an 

adequate defense in the case may request them by a motion to the court.” CrR 3.1 applies 

equally to indigent defendants represented by either appointed or private counsel. Punsalan, 156 

Wn.2d at 880.
No. 83262-0-I/27

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call or not to call a witness is for counsel to make.” In re Pers. Restraint of 

Stenson, 142 Wn.2d 710, 735, 16 P.3d 1 (2001).

1. Forensic Sexual Assault Nurse Examiner

Trial counsel identified Jennifer Smith, a forensic sexual assault nurse 

examiner, to testify as an expert on Amador’s behalf. Trial counsel disclosed 

Smith as an expert who would testify about her review of A.A.’s records. Smith’s 

report opined:

I would expect that a young, small-statured teen who reports 

extremely painful anal sex with ripping and bleeding from the anus 

to have symptoms recognizable by others such as family 

(particularly those responsible for doing laundry), fellow dancers, 

friends, and teachers. Physical symptoms would have included 

difficulty sitting and walking, bloody undergarments, and sore or 

edematous lips.

. . .

With specific regard to injuries, symptoms, and evidence of prior 

injuries related to repeated oral sex from the ages of 10 to 19 and 

repeated anal penetration by a penis between the ages of 13 to 19, 

I have seen no medical evidence in the records reviewed that these 

acts took place.

Shortly before trial, counsel decided against calling Smith to testify. According to 

Amador, trial counsel should have called Smith to testify because this evidence 

was relevant and helpful to the defense.

Smith’s proposed testimony was not as critical as Amador claims. When 

describing Smith’s proposed testimony, trial counsel told Amador,

[S]he will not be able to say that this means [A.A.] fabricated the 

allegations. We expect her to say that the mouth and rectal area 

are parts of the body that heal quickly and that medical records are 

just a snapshot in time and do not capture the whole story and that 

the records cannot prove abuse or rule out the possibility of abuse.
No. 83262-0-I/28

28

This coincides with the trial testimony by the State’s medical expert, Dr. Becky 

Weister, a professor of pediatrics and the director of Harborview Center for 

Sexual Assault and Traumatic Stress, who examined A.A. two years after the last 

alleged sexual assault:

[W]e can see children with significant anal injuries from penetrating 

trauma, and within literally days, it’s resolved. It’s remarkable. It 

heals very, very quickly. And then it heals, and the anus looks like -

- you know, it has a lot of little folds in it, so it has -- it’s a very 

forgiving tissue. So mostly they -- everything just resolves.

Dr. Weister also testified that nothing in A.A.’s history would have prevented her 

from living a normal life and engaging in normal physical activities.

The State’s medical expert provided evidence that contradicted Smith’s 

opinion that A.A. would have experienced significant, limiting, and noticeable 

injury from the alleged sexual assaults. Smith also could not rule out the abuse 

because of the body’s ability to heal the affected parts. Moreover, by the time of 

trial, Smith’s nursing license had lapsed. Smith’s opinion that no definitive 

evidence of the abuse existed, therefore, was cumulative of testimony by the 

State’s more highly qualified medical expert. Trial counsel was not deficient for 

deciding against calling Smith as an expert witness.9 Without establishing 

 9 Amador claims trial counsel did not pursue the case vigorously or call expert witnesses 

because he exhausted his funds in the middle of trial. In support of this allegation, Amador points 

to an email in which counsel explained to potential expert witness Smith that “[t]he client ran out 

of funds part-way through trial,” and inquired about the cost of the cell phone extraction expert’s 

services prior to engaging them. The email to Smith was sent after trial and in response to her 

request for payment for services provided prior to trial. Amador’s contentions are speculation. In 

fact, his counsel noted that his two trial attorneys each worked more than 60 hours without 

compensation to finish his case. To obtain relief in a PRP, the petitioner “must present evidence 
No. 83262-0-I/29

29

deficient performance, Amador cannot demonstrate ineffective assistance of 

counsel.

2. Cell Phone Data Extraction Expert

Trial counsel contacted a cell phone data extraction expert regarding

assistance reading the State’s extraction report about the contents of Amador’s 

cell phone. The report included phone activity from April 15, 2016. That day, A.A. 

had called Amador and accused him of sexual abuse.10 Amador testified that he 

did not realize A.A. was accusing him of sexual assault and then did not deny the 

accusations because he believed she was experiencing a mental health crisis. 

The State questioned Amador to establish that despite his purported concerns 

about her mental health, he made no attempt to call anyone for assistance in 

checking on A.A.’s welfare. According to Amador, a cell phone data expert could 

have bolstered his theory that A.A. was having a mental health crisis by testifying 

that Amador tried calling Melanie twice that evening to find help for A.A., but 

Melanie did not answer the calls.

Even if a data extraction expert had testified that he made such calls, an 

expert could not provide information on Amador’s purpose in making those calls. 

 showing that his factual allegations are based on more than speculation, conjecture, or 

inadmissible hearsay.” In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). 

10 Amador also complains about the poor audio quality of the recorded call, which was 

admitted into evidence, and an inaccurate transcript provided to the jury as a listening aid. 

Amador concedes the transcript was not admitted as substantive evidence and fails to explain 

what the errors in the transcript were or how trial counsel was deficient relating to the recording. 

He also fails to support this claim with authority or argument as required by RAP 10.3(a)(6). We 

do not consider conclusory arguments unsupported by citations to authority. Brownfield v. City of 

Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2014). 
No. 83262-0-I/30

30

Moreover, during his own testimony, Amador did not mention the calls to 

Melanie, nor did he ask Melanie about them, even though she had told a 

detective that Amador called her twice that day and she did not answer. These 

omissions suggest evidence that he made two calls to Melanie was not critical.

Instead, when describing the call with A.A., he testified that it “hadn’t really 

established anything that would lead me to determine that I needed to call for 

assistance like a patrol response to go down there or if I needed to call my exwife, and have her go down there.” Thus, testimony by a data extraction expert 

that Amador had called Melanie would have contradicted the defendant’s own 

testimony.

In light of the other opportunities to establish evidence of the calls through 

lay testimony, forgoing the cell phone data expert was a reasonable trial tactic. 

Amador does not establish that trial counsel was deficient, therefore his 

ineffective assistance of counsel claim fails on this ground.

C. Failure to Introduce Evidence

Amador contends trial counsel was ineffective for failing to introduce 

additional evidence of A.A.’s mental health issues and his own crisis intervention 

training. “The decision to forgo otherwise permissible evidence does not, 

however, render counsel ineffective if the decision can be characterized as part 

of legitimate trial strategy.” Matter of Lui, 188 Wn.2d 525, 552, 397 P.3d 90 

(2017).
No. 83262-0-I/31

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1. Evidence of A.A.’s Mental Health Issues

Amador provided trial counsel with extensive information about A.A.’s 

mental health issues, including a blog entitled “My Mental Health Story,” and text 

messages between Amador and A.A. about her mental health struggles and side 

effects from medication. According to Amador, trial counsel failed “to utilize 

existing documentation to clearly demonstrate the severity and ongoing nature of 

[A.A.’s] mental health challenges.”

A.A. testified about her anxiety and depression and therapy to address the 

issues. Trial counsel cross-examined her about reactions to medication where 

she experienced hallucinations, including that her boyfriend was attempting to kill 

her. Counsel also asked A.A. about a time she had a panic attack and called 

Amador, who cared for her until she felt better. 

A.A.’s mental health struggles were clearly raised and discussed by trial 

counsel. The jury could have seen Amador’s introduction of the text messages 

and the blog posts as excessive and intrusive evidence of a teenage girl 

experiencing common feelings of anxiety and depression. Moreover, emphasis 

on A.A.’s mental health could have resulted in the jury finding her more, rather 

than less, credible, as one would expect significant mental health issues from 

long term sexual abuse. 

Trial counsel’s decision not to introduce additional evidence of A.A.’s 

mental health issues was reasonable and, therefore, not deficient performance. 

Amador’s ineffective assistance of counsel claim fails on this ground. 
No. 83262-0-I/32

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2. Evidence of Amador’s Crisis Intervention Training

Amador argues trial counsel should have introduced a Seattle Police 

Department report with information about crisis intervention training Amador 

received with the Department. According to Amador, he did not deny A.A.’s 

accusations of sexual abuse at the time because of his crisis intervention 

training. He testified, 

the best way to keep communication with somebody that is 

experiencing a crisis, which I knew [A.A] to have experienced in the

past, is to keep sight of the fact that their perspective of reality may 

be different than yours, and ignoring that is not going to be 

beneficial to coming to a safe resolution with whatever the crisis 

may entail.

Because he was afraid A.A. was experiencing a mental health crisis, he 

relied on his training to maintain open communications and determine the 

type of help needed.

While Amador believes his trial counsel did not go into enough depth 

about his crisis intervention training, the testimony shows that counsel elicited the 

relevant information. Amador discussed the training, why he thought it applied, 

and how it impacted his interactions with A.A. Counsel’s failure to pursue the 

issue further was not deficient, and therefore, not ineffective. 

3. Movie Evidence

After hearing A.A.’s claims of sexual abuse, Amador conducted an internet 

search to find fictional works that might have inspired her to make the 

allegations. He discovered a 1999 British film, “The War Zone,” that he 

considered “rife with suspicious similarities.” Amador alerted trial counsel but 
No. 83262-0-I/33

33

because they failed to investigate or ask A.A. about the film, he claims they 

provided ineffective assistance.

11

Amador does not provide evidence that A.A. knew about the movie, saw it, 

or made her allegations based on its content. A petitioner must support their 

claim with more than speculation. Rice, 118 Wn.2d at 886. Trial counsel’s invoice 

notes watching the movie after discussing with Amador. Therefore, counsel 

investigated and clearly chose not to pursue it further. This was a reasonable 

decision considering the purely speculative nature of the proposed evidence. 

Trial counsel was not deficient by declining to pursue the movie evidence and 

Amador’s ineffective assistance of counsel claim on that ground fails. 

D. Closing Argument

Amador claims his counsel “erred” during closing argument by contrasting 

A.A.’s testimony that made no mention of bleeding due to the alleged sexual 

abuse with testimony by Dr. Weister that A.A. reported she had suffered a lot of 

bleeding. He argues that Dr. Weister’s report described the bleeding in 

conjunction with a menstruation issue rather than from sexual abuse, and his 

counsel should have instead contrasted A.A.’s testimony with statements about 

bleeding that she made to her boyfriend.

However, Dr. Weister testified that A.A. reported, “there had been a lot of 

genital bleeding on occasion while the sexual abuse was going on,” and “there 

was a lot of bleeding sometimes, that she would be chapped and hurting badly 

 11 Appointed counsel does not raise this argument. 
No. 83262-0-I/34

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as well.” Defense counsel contrasted Dr. Weister’s testimony during closing 

argument: 

In addition, [A.A.] told Dr. Weister different information, and it’s the 

kind of information that matters. She testified that she had been 

chapped as a result of the sexual abuse but that was it. She told Dr. 

Weister when she underwent that examination that she had 

suffered bleeding, a lot of bleeding. That’s a pretty big change in 

story. That’s the sort of thing -- that is not a fact that gets left out, 

and that difference is significant.

“[T]he determination of which arguments to advance in closing is a tactical 

decision susceptible to a wide range of acceptable strategies.” State v. Israel, 

113 Wn. App. 243, 271, 54 P.3d 1218 (2002). Counsel’s closing argument 

contrasting A.A.’s testimony with her statements to Dr. Weister, rather than her 

statements to her boyfriend, was a reasonable trial tactic and does not 

demonstrate deficient performance. Thus, Amador cannot establish ineffective 

assistance of counsel based on closing argument.

Because Amador fails to demonstrate that he is under unlawful restraint, 

we deny the PRP in its entirety.

WE CONCUR: