FILED 


OCTOBER 20, 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 


DIVISION THREE 


In the Matter ofthe Personal Restraint of ) 

) No. 31955-5-III 

) 

KEVIN LEE HILTON, ) 

) 

Petitioner. ) UNPUBLISHED OPINION 

) 

SIDOOWAY, C.J. - Kevin Hilton seeks relief from personal restraint in the form of 

a life sentence without the possibility ofparole imposed for his 2008 Benton County 

conviction oftwo counts of aggravated first degree murder in the shootings ofhis 

landlords Lawrence and Josephine Ulrich. Mr. Hilton was originally convicted ofthe 

murders in 2003. Those convictions were reversed on appeal when this court ruled that 

incriminating gun shell evidence and other items including computers were seized from 

Mr. Hilton's home pursuant to an invalid search warrant. See State v. Hilton, 131 Wn. 

App. 1020 (2006), review denied, 158 Wn.2d 1027 (2007). 

After he was again convicted on retrial, Mr. Hilton filed a direct appeal and this 

court affirmed the judgment and sentence. See State v. Hilton, 164 Wn. App. 81,261 

P.3d 683 (2011), review denied, 173 Wn.2d 1037 (2012). This timely petition follows. 
No. 31955-5-III 

In re Pers. Restraint ofHilton 

Mr. Hilton, who is represented by counsel, raises four grounds for relief in this 

petition: (1) the State violated due process under Brady v. Maryland, 373 U.S. 83, 87, 83 

S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to provide the defense with material 

exculpatory evidence before trial; (2) he was denied due process by the State's knowing 

presentation of, and reliance on, false and misleading evidence to the jury; (3) he was 

denied effective assistance of counsel; and (4) he was denied his constitutional right to 

present a defense when the court prohibited him from presenting evidence that the 

victims' daughter, Lisa Ulrich, was the real killer. 

Mr. Hilton has filed a companion motion to disqualifY the Benton County 

prosecutor and members of his office from representing the State in this petition and any 

potential reference proceedings, as well as a motion for discovery and for an evidentiary 

hearing. The petition and motions were referred to this panel for determination. RAP 

16.11(b ). 

We deny Mr. Hilton's motions and dismiss his personal restraint petition. 

FACTS 

The facts are largely repeated from the appeal opinion, with additions as relevant 

to the claims raised in this petition. I The Ulrichs' adult daughter Lisa discovered her 

I We granted a motion by Mr. Hilton to incorporate the record from the second 

direct appeal, cause no. 26899-3-III, into this petition; citations to a report ofproceedings 

are to the report ofproceedings for that appeal. 

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No. 31955~5-II1 

In re Pers. Restraint ofHilton 

parents' bodies in their Richland home shortly after 9:00 a.m. on March 21, 2002. Both 

had been shot at close range by a .45 caliber weapon. There was no sign of forced entry 

I to the home. Their wallets were missing. Detectives found three .45 caliber "A-Merc" 

brand shell casings at the murder scene that a fireanns expert determined were all fired 

from the same gun. Five.45 caliber bullets were recovered-three from the murder 

scene within the home and two from Josephine Ulrich's body. The other two shell 

casings were never found. I Officers and a paramedic who responded to the scene observed a partial boot or 

I 

shoe print in grease and several bloody partial shoeprints leading from a pool of blood on 

I 

f 

the carpet about five feet inside the home's tile entryway. The victims' bodies were 

I 

~ 

visible from the entryway. Lisa Ulrich testified she took only one step inside the door 

and saw the bodies and did not go further inside, although physical evidence indicated 

I further entry may have been necessary to see the bodies. 

The Ulrichs lived alone and were last seen alive in their home on the evening of 

March 20 when Lisa and her children visited. They arrived around 4:30 p.m. and left 

between 5:30 and 6:00 p.m., when the Ulrichs were about to eat dinner. Autopsies 

revealed that the victims died from gunshot wounds inflicted within a few minutes to 

three hours after they ate dinner. 

The Ulrichs were longtime landlords and owned seven rental properties. One of 

their tenants was Kevin Hilton, who lived 1.6 miles away. Affixed to Mr. Ulrich's hand 

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No. 31955-5-III 

In re Pers. Restraint ofHilton 

when his body was discovered was a yellow sticky note folded to conceal an original rent 

receipt dated March 20. The receipt, signed by Josephine Ulrich, was made out to Kevin 

Hilton in the sum of$3,475, representing the exact total of his several months' delinquent 

rent. The receipt book was never found. The sticky note concealing the receipt remained 

in Larry Ulrich's hand despite blood evidence showing his body was dragged to to 12 

feet by the murderer. 

A telephone handset with caller ID was missing from the kitchen, close to where 

the bodies lay. It was never found. Another caller ID box was kept upstairs. It showed 

that the last call on March 20 was from Kevin Hilton at 6:42 p.m. A file folder on top of 

the refrigerator contained an original three-day pay rent or quit notice prepared to Mr. 

Hilton by Josephine Ulrich on March 15,2002. 

Lisa Ulrich and her sister Jennifer (who lived out of state at the time of the 

murders) were familiar with their parents' practices when accepting rent payments. Their 

mother would typically issue a receipt only to renters making a cash payment in person. 

Those paying by check received a receipt only if they asked for one. In most cases if a 

renter wanted a receipt they would come to the Ulrichs' house and drop off the payment. 

Jennifer and Lisa both testified that the receipt book currently in use was kept openly on 

top ofthe refrigerator. 

Police were able to contact all of the Ulrichs' tenants on March 21 except for Mr. 

Hilton. Officers finally spoke with him at his home the next day. Asked about his 

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No. 31955-5-II1 

In re Pers. Restraint ofHilton 

whereabouts on the night of the murders, he told officers he had shopped for groceries at 

WinCo, returned the book Hard Time to the Richland library, and then played volleyball 

at Hanford High School from 8:30 to 10:30 p.m. He told them he owed the Ulrichs 

$3,475 in back rent, but had reached a payment arrangement with them by telephone on 

the evening of the murders. He said he telephoned the Ulrichs between 6:00 and 6:30 

p.m. that day and they left a return message between 7 :00 and 7: 15 p.m. while he was 

out. He said they agreed to his proposal for paying back rent. He said he erased the 

message. 

When asked about firearms, Mr. Hilton said he owned three rifles and showed 

them to the officers. They noticed ammunition boxes, shell casings and reloading 

equipment in his basement. He denied currently owning any handguns but described four 

that he owned in the past, including two .45 caliber Norinco handguns. He had 

participated in competitive shooting events in the past. He said he sold one Norinco to 

Dirk Leach and the other to an unnamed individual at a Walla Walla gun show 6 or 8 

months before March 22. Police were only able to trace the gun sold to Mr. Leach, and 

testing showed it was not the murder weapon. See State v. Hilton, 164 Wn. App. 81, 86 

n.3, 261 P.3d 683 (2011). When asked where he was on March 21, Mr. Hilton said he 

went to Mattawa (about 51 miles from Richland along the Columbia River) to sell 

primers to a guy, "VC," whose address and telephone number he did not have. 

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No. 31955-5-111 

In re Pers. Restraint ofHilton 

On March 25, a detective recovered an envelope from the mail addressed to Larry 

Ulrich from Mr. Hilton's return address that was postmarked March 21,2002. The 

envelope contained a promissory note from Mr. Hilton dated March 19,2002, stating he 

would pay the Ulrichs $2,000 plus interest on or before September 1, 2002. The 

envelope also contained a letter to Larry Ulrich dated March 20, thanking him for his 

understanding and summarizing that Mr. Hilton owed $3,475 in back rent and penalties, 

$2,000 would be paid by note, and the $1,475 balance would be satisfied by work credit 

at $12 per hour. 

Jennifer Ulrich testified that her father had allowed renters, including Mr. Hilton, 

to work for credit. But both Ulrich sisters testified that based upon their knowledge of 

their parents' rental practices, they would not have made the type of agreement written up 

by Mr. Hilton. Both sisters doubted they would allow Mr. Hilton to, in essence, stay 

another six months rent free when he already owed them $3,400. 

The police investigation uncovered only one gun shop (Schoonie's Rod Shop in 

Benton City) and no other retailer or gun show seller in the area that stocked the very 

uncommon "A-Mere" brand of.45 caliber ammunition between 1994 and 2002. 

Schoonie's' owner Barbara Schoonover testified she stocked a total of74 boxes during 

that time period and kept all sale and purchase records. She sold Mr. Hilton 28 ofthose 

boxes in May-June 1994, as well as a .45 caliber Norinco handgun. She was certain that 

6 

No. 31955-5-111 

In re Pers. Restraint ofHilton 

the shell casings found in the Ulrichs' home bore the same head stamp and were the same 

kind of.45 caliber "A-Merc" ammunition that she sold Mr. Hilton. 

Evidence was introduced at trial that Mr. Hilton did not appear on the WinCo 

store's video system showing everyone who entered or exited the building on March 20. 

Library records also showed that Mr. Hilton had returned Hard Time on March 19 (not 

March 20), and that he next used the library on March 21, when he returned two books 

and checked out another book. His volleyball teammates confirmed he arrived right at 

the 8:30 p.m. start time, which was late for him because he typically arrived about 15 

minutes early to warm up. He told his teammates he had to clean up garbage that spilled 

in his kitchen so his cat wouldn't get into it. 

Evidence was introduced that the most recent gun show in Walla Walla had taken 

place 14 months before the killings, not 6 to 8 months earlier as claimed by Mr. Hilton. 

With regard to Mr. Hilton's claimed Mattawa trip, law enforcement authorities 

throughout the region could not identity anyone using the name "VC." 

The parties presented conflicting expert testimony on whether Mr. Hilton's size 

12 Yz-13 feet could have fit into the shoes that left the partial bloody footprints. The 

State's forensic scientist opined based on a footprint taken from Mr. Hilton that his foot 

could have fit inside the shoe that made the prints. 

The defense presented testimony from Donald Short, president ofMr. Hilton's 

Internet provider. During this testimony, the court admitted evidence showing the 

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No. 31955-5-111 

In re Pers. Restraint ofHilton 

following times of Internet usage on Mr. Hilton's computers on the evening of March 20, 

2002: 

5:42:12 - 5:59:17 p.m. 

6:20: 13 - 6:20:31 p.m. 

7:41 :32 - 7:41 :42 p.m. 

7:58:35 - 8:10:24 p.m. 

10:41:17 - 10:45:36 p.m. 

Ex. 490. While Mr. Short testified that the Internet was in use at Mr. Hilton's residence 

at these times, he acknowledged on cross-examination that he could not say for certain 

that a human was doing it "because you can automatic such a thing." Report of 

Proceedings (RP) (Feb. 7,2008) at 3261. He explained, "If you set your email to check 

periodically, especially on a dial-up connection, it can dial it in, do its thing, and then 

eventually it will time out." Id. Defense lawyers asked Mr. Short on redirect about the 

short logons for 8 seconds at 6:20 p.m. and 10 seconds at 7:41 p.m., and Mr. Short 

testified that they were most likely human contact, such as an inadvertent click onto the 

Internet or a quick logon to check e-mail, whereas an automated logon would take longer. 

He was never asked if the 7:58:35 to 8:10:24 p.m. access was most likely human contact 

or automated. 

Mr. Hilton did not testifY at the first trial, but took the stand in his second trial and 

denied killing the Ulrichs. He gave alibi testimony as to his whereabouts on March 20. 

He claimed he went to Albertsons at about 7 :00 p.m., then bought gas at a Conoco 

station, and then went to the library shortly after 7 :30 p.m. and returned two paperbacks. 

8 

No.31955-5-III 

In re Pers. Restraint ofHilton 

He denied telling officers that he went to Win eo, but admitted he did not tell them he 

went to Albertsons. He corrected his original statement about his stop at the library, 

testifying that he went just inside the doors to the paperback racks for only a few seconds 

and returned two books. He claimed that his original statement to a detective on March 

26, that he returned Hard Time on March 20, was his best guess at the time, but he later 

realized he was mistaken about the date. 

He claimed to have returned home and spent time on the computer before 

volleyball. He admitted that he never mentioned the spilled garbage that delayed his 

arrival at volleyball to detectives because the topic never came up and he considered it 

unimportant. 

He claimed that he and Josephine Ulrich discussed his payment proposal for the 

rent arrears during the 6:42 p.m. call showing on the Ulrichs' upstairs caller ID. His 

earlier statement to the police that he had called between 6:00 and 6:30 p.m. was just an 

estimate. He claimed that he never received a 3-day notice from Ms. Ulrich. His letter 

describing the payment plan was mailed to the Ulrichs with a promissory note on March 

21. 

Mr. Hilton further testified that he owned no handguns at time of the murders. He 

admitted to buying "A-Merc" ammunition and a .45 caliber Norinco handgun from 

Barbara Schoonover years earlier. Mr. Hilton held a yard sale a month after the murders, 

on April 26, 2002. As bearing on Mr. Hilton's credibility, a State's witness testified that 

9 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

he purchased a .45 caliber handgun and a .22 caliber rifle at that yard sale. The witness 

positively identified Mr. Hilton in court as the seller of the guns, although it was later 

shown in expert firearms analysis that the .45 caliber was not the murder weapon. Mr. 

Hilton denied selling any gun at his April 26 yard sale. He said he sold his last .45 

caliber handgun at a gun show in Walla Walla in February 2001 and explained that he 

had previously only estimated that the gun show was six to eight months earlier. He was 

unable to describe the purchaser of the gun in his initial trial testimony, but when he 

resumed the stand the next day, he described the person as a white male with brown hair 

who was shorter and more slightly built than him. He admitted that the Ulrichs only gave 

him a receipt when he showed up in person and paid his rent in cash. 

The jury disbelieved Mr. Hilton's alibi defense and found him guilty of the 


murders. Other facts will be related as pertinent to the resolution of Mr. Hilton's claims. 


ASSERTED GROUNDS FOR RELIEF 


Personal Restraint Petition Review Standards 

To obtain relief in a personal restraint petition (PRP), Mr. Hilton must show actual 

and substantial prejudice resulting from alleged constitutional errors, or for alleged 

nonconstitutional errors a fundamental defect that inherently results in a miscarriage of 

justice. In re Pers. Restraint ofCook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). To 

avoid dismissal, the petition must be supported by facts and not merely self-serving or 

conclusory allegations. Id. at 813-14. The supporting evidence must be based on "more 

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No. 31955-5-II1 

In re Pers. Restraint ofHilton 

than speculation, conjecture, or inadmissible hearsay," and a failure to meet this burden 

calls for dismissal of the petition. In re Pers. Restraint ofRice, 118 Wn.2d 876, 886, 828 

P.2d 1086 (1992). 

Ground 1: Brady claim 

Mr. Hilton contends the State violated his right to due process under Brady, 373 

U.S. 83, by failing to provide the defense with material exculpatory evidence before trial, 

that being materials pertinent to usage of the Ulrichs' computers on the night of the 

murders. 

Under Brady, the prosecution has an affirmative duty to disclose evidence that is 

favorable to a defendant. Brady, 373 U.S. at 87; Kyles v. Whitley, 514 U.S. 419, 432, 115 

S. Ct. 1555, 131 L. Ed. 2d 490 (1995). "[T]here are three components of a true Brady 

violation: [t]he evidence at issue must be favorable to the accused, either because it is 

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

State, either willfully or inadvertently; and prejudice must have ensued." In re Pers. 

Restraint ofStens on , 174 Wn.2d 474, 486-87, 276 P.3d 286 (2012) (quoting Strickler V. 

Greene, 527 U.S. 263, 281-82,119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). With respect 

to the third component, the "materiality ofthe evidence" and "prejudice" are spoken of 

interchangeably. Stenson, 174 Wn.2d at 487. To prove materiality, a petitioner must 

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

defense, the result ofthe proceeding would have been different.'" Id. (internal quotation 

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No. 31955-5-111 

In re Pers. Restraint ofHilton 

marks omitted) (quoting Kyles v. Whitely, 514 U.S. at 433-34). A Brady violation is 

shown when "[t]he favorable evidence could reasonably be taken to put the whole case in 

such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435; 

Stenson, 174 Wn.2d at 487. But ifthe defendant using reasonable diligence could have 

obtained the information, there is no Brady violation. State v. Mullen, 171 Wn.2d 881, 

896,259 P.3d 158 (201l). 

In April 2002, the Richland Police Department asked Kennewick Police Detective 

Simon Mantel to collect and analyze two computers from Mr. Hilton's home (computers 

A and B) and two from the Ulrichs' home (computers C and D). Detective Mantel 

produced a 6-page report of his computer analysis on September 19,2002. In a 

discussion pertaining to computer C, which was in the Ulrichs' downstairs family room, 

Detective Mantel stated on page 5 of his report: "Prior to the power outage,2 user 

initiated activity ended at 8:07:33 PM on 3/20/02." Br. in Support ofPRP, Appendix C 

at 5. Mr. Hilton contends that evidence that user initiated activity on the Ulrichs' 

downstairs computer continued until 8:07 p.m. is critical exculpatory evidence given 

corroboration by his teammates that he arrived for volleyball at 8:30 p.m. There is no 

2 A power outage occurred at several neighboring homes, including the Ulrichs', at 

approximately 1 :00 a.m. on March 21, 2002. The utility company restored the power 

after 2:00 a.m. No cause for the outage was ever determined. 

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No. 31955-5-III 

In re Pers. Restraint ofHilton 

dispute that the State provided the defense a copy of the Mantel report before Mr. 

Hilton's first trial. 

In 2003, Detective Mantel was called to active military duty and did not return to 

the Kennewick Police Department. The State listed him as a witness for the first trial. 

He was not called to testify. 

In December 2002, Prosecutor Andy Miller asked Kennewick Police Detective 

T.D. Scott to provide Detective Mantel's work from computer C to Sergeant Wehner of 

the Richland Police Department and lD. Fluckiger of Battelle, a private company that 

manages a national laboratory for the U.S. Department of Energy in Richland. According 

to Detective Scott's report dated December 24, 2002, Mr. Fluckiger requested the EnCase 

Evidence file copy of computer C as designated in Detective Mantel's report. As with 

Detective Mantel's report, the defense received Detective Scott's report in discovery. 

On February 4, 2003, Mr. Miller wrote in a letter to defense counsel that the State 

mayor may not be able to obtain Detective Mantel's presence at trial, but that his office 

was working with Battelle to see if its personnel might be able to review the hard drives 

and provide the testimony that would have been provided by the detective. Mr. Miller's 

letter noted that defense counsel had received earlier notice of this contingency in 

discovery. On February 28,2003, Mr. Miller wrote in another letter to defense counsel 

explaining logistical limitations on dates that Detective Mantel could testify and 

requesting a stipulation that the State could call him out of order during the defense case. 

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No. 31955-5-111 

In re Pers. Restraint ofHilton 

There was no further mention of Mr. Fluckiger. Neither party called Detective 

Mantel or Mr. Fluckiger as a witness at either trial, nor did either party seek to introduce 

evidence of usage or activity on the Ulrichs' computers. 

In support of the present petition, Mr. Hilton has filed a declaration from Mr. 

Fluckiger dated June 27, 2013, in which he states that he met with defense investigator 

Winthrop Taylor, who showed him Detective Scott's December 24, 2002 police report 

referring to Mr. Fluckiger as having been asked to review Detective Mantel's work on the 

computers. Mr. Fluckiger states in the declaration that Battelle's legal department gave 

him permission to assist Mr. Miller in determining the nature and quality of Detective 

Mantel's work on the condition Mr. Fluckiger would not testifY as an expert witness. He 

met with Mr. Miller and a Kennewick police representative. He states that Mr. Miller 

gave him a report that referred to EnCase forensic software and a single CD and asked 

him to explain what the report said in terms Mr. Miller could understand. Mr. Fluckiger 

reviewed the disk and felt comfortable that the information Detective Mantel had 

provided was "fairly sound," but he never went into the EnCase files to determine what 

was there. Br. in Support ofPRP, Appendix E, Fluckiger Declaration at 2. Instead, he 

just looked at Detective Mantel's presentation and explained it to Mr. Miller. He recalls 

looking to see if the times between one computer and another computer correlated with 

one another and concluded that they did, but he did not go back and do a personal 

evaluation of the original files. 

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No. 31955-5-III 

In re Pers. Restraint ofHilton 

Mr. Hilton alleges a Brady violation based upon the fact that the State never 

informed the defense that Mr. Fluckiger had confirmed, in terms that Mr. Miller could 

understand, the soundness of Detective Mantel's report. Mr. Hilton's characterization is 

that the State "possessed Detective Mantel's report, and knew his conclusions had been 

confirmed by a second expert at Battelle: someone was using the Ulrichs' computer until 

8:07 p.m. on the night they died-the same time Mr. Hilton was on his own computer at 

his own home." Pet'r's Reply Br. at 31. Mr. Hilton contends that had the State disclosed 

the Fluckiger confirmation, defense counsel would have taken another look at Detective 

Mantel's report, and specifically checked his work on computer C. 

Detective Mantel's conclusions were not suppressed 

While forced to admit that the defense received the Mantel report, the Scott report, 

and Mr. Miller's letters, Mr. Hilton likens his case to Stenson, 174 Wn.2d 474, in which 

evidence was accessible to the defense but not in any meaningful manner. The evidence 

of Stenson's guilt for two murders was largely circumstantial, but two key pieces of 

evidence admitted at trial directly tied him to the shootings: (1) gunshot residue (GSR) 

found inside the front right pocket ofjeans that Stenson was wearing when officers 

arrived at his house, and (2) blood spatter on the front ofthose jeans that was consistent 

with one ofthe victim's blood protein profile. Id. at 478. Fifteen years after his 

conviction, postconviction counsel received (1) photographs taken before the testing of 

the pockets for GSR, showing a sheriffs detective wearing Stenson's jeans with the right 

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No. 31955-5-II1 

In re Pers. Restraint ofHilton 

pocket turned out and showing the detective's ungloved hands, and (2) an FBI file 

containing the GSR test results that revealed a person named Lundy, and not the State's 

expert Peele, as Peele's trial testimony had implied, had performed the GSR tests at the 

FBI laboratory. Id. at 479-80. 

A defense investigator had been provided with pretrial access to the photographs 

during a meeting with Rod Englert, a State's expert. Mr. Englert-who had been 

provided with the defendant's pants on April 14, 1994-had turned the pockets out on 

that date to look for blood evidence. Id. at 480. Mr. Englert also recommended at that 

time that the pockets be tested for GSR, which they were, six days later-qfier having 

been handled by the ungloved law enforcement officer. The State argued that it had not 

suppressed the photograph because it had been available to the defense investigator from 

Mr. Englert's file. But a trial court later found in a reference hearing that nothing in 

materials provided to the defense team stated that the Englert examination had included 

turning the pockets out or anyone being ungloved. Id. at 482. The appellate court agreed 

with the trial court that the fact that the detective put his ungloved hand in the pocket 

before the GSR testing '''should have been disclosed.'" Id. at 490. 

Mr. Hilton contends that as with expert Englert in Stenson, the fact that the State 

did not intend to call Detective Mantel made it reasonable for the defense to conclude 

that he had nothing relevant to the case and no further inquiry was needed. Mr. Hilton 

further asserts it was reasonable for the defense to rely on the State's constitutional 

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No. 31955-5-II1 

In re Pers. Restraint ofHilton 

requirement not to violate due process by presenting a theory when it possessed evidence 

that disproved the theory. Mr. Hilton asserts that it was the Fluckiger confinnation that 

would have pointed defense counsel to the truth about the use of computer C by a person 

at 8:07 p.m., thereby rendering it material for Brady purposes and its withholding 

prejudicial. 

We reject Mr. Hilton's arguments. First, it is undisputed that the State disclosed 

Detective Mantel's report to the defense before the first trial. Unlike the photographs in 

Stenson, whose significance arose from their timing-something not apparent from the 

photographs-the significance that Mr. Hilton attaches to Detective Mantel's report is 

manifest in the detective's statement in the report that "user initiated activity [on 

computer C] ended at 8:07:33 PM on 3/20102." Br. in Support ofPRP, Appendix C at 5. 

Mr. Hilton points out that the information was among 2,000 pages of discovery, the 

infonnation about the activity on computer C was in a single sentence on page 5 of the 

report, and the State's witness summary for Detective Mantel stated only that he had 

examined Kevin Hilton's computer. But the State has no obligation under Brady to point 

the defense to specific documents within a larger mass of material that it has already 

turned over. Mullen, 171 Wn.2d at 896. Moreover, as the Mullen court explained: 

[W]here "a defendant has enough infonnation to be able to ascertain the 

supposed Brady material on his own, there is no suppression by the 

government." [United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 

1991)]. '''[W]here the defendant is aware of the essential facts enabling 

him to take advantage of any exculpatory evidence, the Government does 

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No. 31955-5-II1 

In re Pers. Restraint ofHilton 

not commit a Brady violation by not bringing the evidence to the attention 

ofthe defense.'" Raley v. Ylst, 470 F.3d 792,804 (9th Cir. 2006) (quoting 

United States v. Brown, 582 F.2d 197,200 (2d Cir.l978)). 

Mullen, 171 Wn.2d at 896 (footnote omitted). 

Besides having the Mantel report, the defense had Detective Scott's report 

revealing the prosecutor's interest in computer C. The Scott report stated that Battelle's 

Mr. Fluckiger had been asked to review the Mantel report with respect to the "work Det. 

Mantel had done on 'Computer C'" and that Mr. Fluckiger needed and was provided 

with "the Encase[ ] files for Computer C." PRP ofHilton, Holt Declaration, Exhibit 3 at 

1. The prosecutor's subsequent letter to the defense stated that his office was working 

with Battelle to see if its personnel might be able to review the hard drives and testify to 

what Detective Mantel would have testified to. The defense had the essential facts to 

which it now attaches significance. 

We also observe, as relevant to this ground for relief and the next, that it is a 

mischaracterization ofthe Mantel report to say that it states or opines that someone was 

physically using the Ulrichs' downstairs computer at 8:07 p.m. on March 20. It does not. 

Mr. Hilton supports his petition with an unsigned "declaration" from Detective Mantel, 

which was prepared based upon an interview ofDetective Mantel by defense investigator 

Winthrop Taylor in 2012. Mr. Taylor states that the unsigned declaration is an accurate 

account ofmatters Detective Mantel would testify to if called. Detective Mantel's 

unsigned declaration explains the meaning ofthe "user initiated activity" he was looking 

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No. 31955-5-III 

In re Pers. Restraint ofHilton 

for in 2002 as "the last activity on the computer that was not associated with any 

automated recurring computer initiated programs." Pet'r's Br. in Support ofPRP, 

Appendix D, at 3. He states that making that determination is a subjective expert opinion 

that depends on an examiner's expertise and training in computer forensics. He prepared 

his 2002 report in anticipation that he would either be deposed by a defense expert or 

called to testify in court and his report sat on top of other files that would have allowed 

him, at the time, easy access to the underlying data from which he drew his conclusions. 

Although he was provided by Mr. Taylor in 2012 with a CD that appeared to contain his 

report, he was unable to rebuild the supporting documents from the disk. While he 

recalls it was important to make sure there was not some isolated recurring computer 

generated program or non-user activity before he reached his conclusion that the activity 

on computer C was user initiated, no underlying data is presented or explained. 

The report's subjective opinion that user initiated activity ended at 8:07 p.m. 

therefore does not shed light on when the user initiated activity began, the time of the last 

certain human contact with the computer, or whether the computer merely tiined-out at 

8:07 p.m. after a period of human inactivity. 

Unlike in Stenson where material exculpatory evidence was suppressed by the 

State, the Mantel report was never suppressed. In addition to full disclosure ofthe core 

evidence-the report-the State notified the defense that it was exploring whether 

Battelle would be able to provide an expert to testify to the matters otherwise expected 

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No. 31955-5-III 

In re Pers. Restraint ofHilton 

from Detective Mantel, disclosed a report revealing that it had an interest in Detective 

Mantel's work on computer C, and provided a report identifying Mr. Fluckiger by name. 

The Fluckiger assessment and explanation was not material 

Mr. Hilton is correct that the State never informed the defense of what Mr. 

Fluckiger ultimately told Mr. Miller in 2003. But Mr. Hilton cannot demonstrate that the 

Fluckiger assessment was material. 

Mr. Fluckiger could add nothing, because he did not examine the actual files in the 

computer and did not look at the hard drive. He did no analysis of his own and never 

issued a report. He only looked at Detective Mantel's presentation and confirmed that he 

felt comfortable that the information Detective Mantel had provided was fairly sound.3 

The State merely failed to disclose that, having been told by Battelle that he could not 

testify as an expert, Mr. Fluckiger spoke with Mr. Miller, told Mr. Miller what he 

understood the detective's report to say, and expressed his view that the report appeared 

3 Although not dispositive ofthe petition, we reject as unsupported the State's 

alternative theory that Detective Mantel's report is not material for Brady purposes 

because he may have failed to account for the April 7, 2002 change to daylight savings 

time when he did his report in September 2002. The State posits that if Detective Mantel 

made this mistake in failing to realize the computer clock had set itself ahead one hour, 

the true time that user initiated activity ended would have been 7:07 p.m. on March 20, 

thus fitting well within the 6:42 p.m. to 7:41 p.m. timeframe for Mr. Hilton to have 

committed the murders. But Detective Mantel's report indicates he examined the 

computer on April 2, 2002-prior to daylight savings time taking effect on April 7. 

Detective Mantel's report also indicates he confirmed the computer time with satellite 

time. Pet'r's Br. in Support ofPRP, App. Cat 3. 

20 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

competently prepared. This inconsequential assessment of information available to the 

defense could not reasonably put the prosecution ofMr. Hilton in such a different light as 

to undermine confidence in the verdict. 

In a statement of additional authorities, Mr. Hilton calls our attention to Lapointe 

v. Commissioner o/Correction, 316 Conn. 225, 112 A.3d 1 (2015), a rape/murder/arson 

conviction where the petitioner received a new trial in state habeas proceedings due to the 

prosecution's Brady violation for withholding the lead detective (Ludlow's) note 

referencing the expert opinion of state fire investigators about the particular timeframe in 

which the fire could have started. The Ludlow note was not disclosed to defense counsel 

before trial. Lacking the exculpatory information, counsel did not call a witness (Martin) 

who would have testified that the defendant was home watching television with her 

during the entire relevant timeframe. The defendant was thus deprived of evidence 

"establishing a complete and potentially compelling alibi [ defense], thereby gravely 

undermining the [validity] of the verdict" and entitling him to a new trial. Id. at 349. 

Lapointe is also not helpful to Mr. Hilton. Unlike in that case, where expert 

opinion was present but suppressed under Brady, the Mantel report was not withheld 

from Mr. Hilton. And unlike in LapOinte, Mr. Hilton demonstrates no complete and 

potentially compelling alibi claim that he failed to present as a result of a State 

nondisclosure. 

21 
No. 31955-5-III 

In re Pers. Restraint ofHilton 

Mr. Hilton fails his burden under Cook of showing constitutional error in the form 

of a due process violation under Brady. 

Ground 2: Denial ofDue Process by the State's Knowing 

Presentation ofand Reliance on False and Misleading Evidence to 

the Court and Jury 

Mr. Hilton next contends that the State presented known false and misleading 

evidence and thus violated his right to due process in two ways: (1) failing to inform the 

jury of the critical 8:07 p.m. usage ofUlrichs' downstairs computer when presenting its 

time line for the murders, and (2) falsely informing the trial court (and this court in the 

direct appeal) that a 2008 DNA 4 test excluded Lisa Ulrich as the source of DNA on the 

shell casings. 

It is fundamental that the Fourteenth Amendment to the United States Constitution 

cannot tolerate a state criminal conviction obtained by knowing use of false evidence or 

improper manipulation of material evidence. United States v. Bagley, 473 U.S. 677, 105 

S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Giglio v. United States, 405 U.S. 150,92 S. Ct. 

763,31 L. Ed. 2d 104 (1972); Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 

(1967); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173,3 L. Ed. 2d 1217 (1959); Alcorta 

v. Texas, 355 U.S. 28, 78 S. Ct. 103,2 L. Ed. 2d 9 (1957); see also Troedel v. 

Wainwright, 667 F. Supp. 1456, 1458 (S.D. Fla. 1986) (term "false evidence" includes 

4 Deoxyribonucleic acid. 

22 
No. 3l955-5-III 

In re Pers. Restraint ofHilton 

the "introduction of specific misleading evidence important to the prosecution's case in 

chief [or] the nondisclosure of specific evidence valuable to the accused's defense.") 

(quoting Donnelly v. DeChristoforo, 416 U.S. 637,647,94 S. Ct. 1868,401. Ed. 2d 431 

(1974)). A new trial is required if the false evidence could in any reasonable likelihood 

have affected the verdict. Giglio, 405 U.S. at 153; Napue, 360 U.S. at 271; see Brown v. 

Borg, 951 F.2d 10 11, 1015 (9th Cir. 1991). 

Ulrich Computer Usage and a Murder Timeline 

Mr. Hilton contends the State violated his right to due process by presenting a 

knowingly inaccurate theory that he killed the Ulrichs before 7:41 p.m., even though the 

State was aware from Detective Mantel's report and the confirmation from Mr. Fluckiger 

that user initiated activity on the Ulrichs' downstairs computer continued until 8:07 p.m. 

Mr. Hilton asserts that due process was violated by the State's failure to disclose the 

Fluckiger confirmation to the defense and its presentation ofthe false impression that the 

Ulrichs were dead before 7:41 p.m. He insists that the fact someone else was using the 

Ulrichs' computer while he was at his home on his own computer, and after the State 

theorized the Ulrichs were dead, puts the case in an entirely different light. 

In addition to arguing the Ulrich computer evidence is not material but only 

speculative, the State argues that it did not assert that the killings occurred before 7 :41 

p.m.; rather, it left the timeframe open, relying on Mr. Hilton's discredited explanations 

for his whereabouts for most of the evening and night of the murders. 

23 

No. 31955·5·111 

In re Pers. Restraint ofHilton 

The record bears out the State's position. In opening statement, the prosecutor did 

not suggest a particular timeframe for the murders. He said the evidence would show Mr. 

Hilton had plenty of time to murder the Ulrichs after Lisa Ulrich and her children left 

during dinner time and before he arrived at his volleyball game. 

In closing argument, the State argued in general terms that Mr. Hilton had plenty 

of opportunity to commit the murders given the timeframe in which the Ulrichs died 

according to the pathology experts. It argued broadly that "[d]uring the period of time 

when Larry and Jo Ulrich were most likely murdered, the defendant cannot account for 

his whereabouts. And then the defendant can't account for his whereabouts after 10:45 

p.m." RP (Feb. 13,2008) at 3816·17. The prosecutor also suggested that Mr. Hilton 

might have been at the Ulrich home both before and after volleyball on the night of the 

murders, asking, "Did the defendant go back? Very, very possible." Id. at 3817. The 

prosecutor emphasized Mr. Hilton's failed grocery store and library alibis, his inability to 

prove his whereabouts after the 6:42 p.m. telephone call to the Ulrichs, and his 

explanation to volleyball teammates (but not to police) of his unusual lateness due to a 

garbage spill in his kitchen. In rebuttal closing, the prosecutor told the jury that the 

Ulrichs were murdered on the night of March 20, and "[y]ou can set any time you want 

from maybe 6:00 to 10:00, according to Doctor Selove and Doctor Reay, but that's when 

they were murdered." Id. at 3896. 

24 

No. 31955-5-111 

In re Pers. Restraint ofHilton 

It was only defense counsel who proposed timeframes to the jury in order to shoot 

them down. During opening statement, defense counsel contended that the State would 

be stuck arguing that the murder occurred roughly between 7:40 p.m. and 8:30 p.m., with 

Mr. Hilton getting off the Internet, scrambling over to the Ulrichs, shooting them, 

running around the house and grabbing things, dragging bodies around and then calmly 

showing up at volleyball at 8:30 p.m. In its closing argument, the defense focused on a 

different timeframe, arguing that the 59-minute period from Mr. Hilton's 6:42 p.m. 

telephone call to the Ulrichs until his computer logon at 7:41 p.m. was insufficient time 

for him to commit the murders, clean up, and get ready to go to volleyball. Defense 

counsel argued that Mr. Hilton was home on the Internet at 7:41 p.m. and again at 7:58 

p.m. for over 10 minutes, and that a person who just committed murder would not be 

sitting casually on the Internet for 10 minutes before cleaning up spilled garbage and 

walking out the door to volleyball. 

Thus only the defense, not the State, argued that the killings had to occur either 

before or after 7:41 p.m. 

In his reply brief, Mr. Hilton is forced to concede that the State did not commit to 

a timeframe for the murder in the second trial. But he points out that the State did 

commit to a 6:42 p.m. to 7:41 p.m. timeframe in the first trial and suggests that "perhaps" 

the State "backed away from [the] time commitment" "because the prosecutor realized 

this time was impossible given the evidence it possessed." Pet'r's Reply Br. at 31. Mr. 

25 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

Hilton persists in arguing that the State created false inferences it knows were not 

possible, even if no specific piece of evidence and no specific argument was false. 

Pet'r's Reply Br. at 27. Yet Mr. Hilton is unable to direct us to even that evidence or 

argument, general or specific, that he contends created false inferences. 

Essentially, Mr. Hilton's position is that once the State invited the jury to consider 

the entire 6:00 p.m. to 10:00 p.m. timeframe, it was obliged to affirmatively present the 

jury with Detective Mantel's conclusion about user initiated activity and concede that for 

some time between 7:58:35 p.m. and 8:07:33 p.m., some human being other than Kevin 

Hilton was using the downstairs computer at the Ulrich home at the same time that Kevin 

Hilton was at his own home, using the Internet, thereby making it impossible for Mr. 

Hilton to have committed the murder before his 8:30 p.m. arrival at volleyball. 

The State's response offers several reasons why the evidence does not require any 

such concession. 

It points out first, as we previously touched upon, that Detective Mantel's 

conclusion that user initiated activity on the Ulrichs' downstairs computer ended at 

8:07:33 p.m. does not mean that someone was physically at the computer until that time. 

Resp. to Pers. Restraint Pet. at 19 (Resp.) ("[User initiated activity] does not provide a 

definite time at which a person stepped away from the computer .... Detective Mantel's 

report does not conclude that an individual was definitely on the Ulrich computer at 

8:07:33 p.m."). 

26 

No. 3 I 955-5-III 

In re Pers. Restraint ofHilton 

It points out that Mr. Hilton might have been the person using the Ulrichs' 

computer after 8:00 p.m. Resp. at 21 ("After murdering the Ulrich[s], the evidence 

shows that the defendant took incriminating evidence from their residence. . .. He may 

have checked the Ulrich computer to see ifhe could find any obvious evidence pointing 

to him."). While Mr. Short, the defense computer expert, testified that a computer at Mr. 

Hilton's home was engaged in Internet use from 7:58:35 p.m. to 8:10:24 p.m., the State 

points out that Mr. Short agreed that the use could have been automated; Mr. Hilton 

didn't need to be there.5 Resp. at 17 ("[The 7:58:35 log onto the Internet] was less likely 

to be human involved, according to the defendant's computer expert"); id. at 22 ("[N]o 

5 As Mr. Hilton points out, the prosecutor stated at one point during his closing 

argument that, "We know [Mr. Hilton's] home at 7:41. We know that at 7:58 to 8:09 

he's on the [I]nternet." RP (Feb. 13,2008) at 3816. Mr. Hilton argues in his reply brief 

that the prosecutor's statement in closing argument was a concession by the State and that 

the doctrine ofjudicial estoppel now bars the State from making a directly contradictory 

factual assertion. It cites no case holding that the State cannot recognize the reality on 

appeal that evidence presented to the jury supported findings different from those that it 

advanced in closing. 

Mr. Short's testimony unquestionably allowed for the possibility that the Internet 

use on Mr. Hilton's computer between 7:58:35 p.m. and 8: 10:24 p.m. was automated. RP 

(Feb. 7, 2008) at 3261,3268. Jurors who were paying attention to Mr. Short's testimony 

could have analyzed the evidence with that fact in mind notwithstanding the prosecutor's 

single concession during lengthy closing arguments that Mr. Hilton was on the Internet at 

7:58 p.m. (the closing arguments took most of an afternoon and account for almost 100 

pages of the report of proceedings). The jurors were instructed, "It is important ... for 

you to remember that the lawyers' statements are not evidence." RP (Feb. 13,2008) at 

3791. 

27 

No. 31955-5-III 

In re Pers. Restraint ojHilton 

one, including the defendant's computer expert, can state that the defendant was home 

between 7:41 and 8:30 p.m."). 

It points out that given the short distances involved and the likelihood that traffic 

was light, it would have been possible for Mr. Hilton to leave his home at 8: 10 p.m., 

commit the murders, and still arrive at volleyball around 8:30 p.m. Resp. at 20-21 (Mr. 

Hilton "had sufficient time to fire five shots at the Ulrich[s], make a quick search for 

incriminate[ing] evidence, [missing some, ... and] would have been able to appear 

within minutes at the volleyball game"). 

Mr. Hilton relies heavily on four cases: Miller v. Pate, 386 U.S. I; Alcorta v. 

Texas, 355 U.S. 28; Brown v. Borg, 951 F.2d 1011; and this court's opinion inState v. 

Martinez, 121 Wn. App. 21, 86 P.3d 1210 (2004). But in all of those cases, the 

defendants could point to false testimony known to the State, or false argument by the 

State. 

In Miller, the prosecutor made repeated references to the murder defendant's 

"bloody shorts" that were allegedly stained with blood matching the victim's blood type. 

The shorts were a key part of the prosecution's case, yet they were not actually the 

defendant's shorts and the prosecutor knew at the time of trial that it was not blood on the 

shorts, rather paint. The Court held that the prosecutor's knowing use of false evidence 

violated the defendant's due process rights and warranted reversal of the conviction. 

Miller, 386 U.S. at 5-7. 

28 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

In Alcorta, the defendant was charged with murdering his wife while she sat in a 

car kissing another man, Castilleja. Because Alcorta suspected the two were having an 

affair, he claimed the killing was murder without malice, but in a fit ofpassion. 

Castilleja testified for the State and denied any sexual relationship. Alcorta was 

convicted of murder and sentenced to death. Castilleja later provided a sworn statement 

admitting he had falsely testified at trial and that he had in fact had sexual relations with 

the defendant's wife. Alcorta, 355 U.S. at 30. In habeas proceedings, the prosecutor 

admitted knowing ofthe perjury, withholding the information from Alcorta, and taking 

no steps to have Castilleja testify truthfully. The Supreme Court held that the 

prosecutor's failure to correct known false testimony violated due process. Id. at 31-32. 

In Brown, the defendant was convicted of first degree felony murder based upon 

the prosecution's theory that he was involved in killing the victim during a robbery. A 

detective testified to his opinion that the victim was killed during a robbery because a 

ring was found on the ground, but his gold chains and wallet were missing. In closing, 

the prosecutor argued there was no testimony that any property of value was found on the 

victim. Brown, 951 F .2d at 1013. In fact the prosecutor knew during trial, but did not 

inform the detective or defense counsel, that the victim's wallet and gold chains had been 

given to his relatives by hospital personnel, who presumably had discovered them on his 

person. Id. at 1014. The court found reversible misconduct because the prosecutor was 

"[p ]ossessed of knowledge that destroyed her theory ofthe case," and "had a duty not to 

29 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

mislead the jury. Instead, she kept the facts secret in the face of a long-standing rule of 

constitutional stature requiring disclosure, and then presented testimony in such a way as 

to suggest the opposite of what she alone knew to be true: that the wallet and chains had 

not been stolen in a robbery." Id. at 1015. 

In Martinez, 121 Wn. App. 21, a State's witness identified two guns used in a 

robbery as weapons the defendant had shown her in December 1999. The State 

determined during pretrial investigation that the witness could not have correctly 

identified one of the guns because it belonged to a third party until October 2000, but 

rather than inform the defense, the prosecutor dissembled in opening statement, telling 

the jury that it was expected the witness would identify the guns in some fashion: "[S]he 

can't tell you that these are the same guns, I think she will say that they just looked the 

same." Id. at 26. The prosecutor later notified the defense it would not question the 

witness about the gun lineup and it was eventually revealed that the gun identified by the 

witness could not have been the same gun used in the robbery. Id. at 28. 

In upholding the trial court's dismissal of the charges for governmental 

misconduct under erR 8.3(b), this court ruled that substantial evidence supported the fact 

that the State waited so long to provide the exculpatory evidence to the defense as to be 

"repugnant to principles of fundamental fairness" and a violation of due process. 

Martinez, 121 Wn. App. at 35. The defendant was prejudiced in his right to counsel and 

30 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

denied effective assistance because the late discovery compromised defense counsel's 

ability to adequately prepare for trial. Id. at 34-35. 

Unlike the defendants in Miller, Alcorta, Brown, and Martinez, Mr. Hilton is 

unable to point to any false or misleading evidence or information that was relied on, 

secreted, or proffered by the State. All he can show is that the State refused to draw or 

argue the inferences that he would have drawn from the available evidence and chose not 

to offer Detective Mantel's testimony or the results of his computer review. While every 

"prosecutor is a quasi-judicial officer" of the court, State v. Huson, 73 Wn.2d 660,663, 

440 P .2d 192 (1968), charged with the duty of ensuring that an accused receives a fair 

trial, the State was not required to present both its own and the defense case. 

Mr. Hilton makes no showing, as is his burden under Cook, that the State misled 

the jury with any false evidence or false inference. 

DNA Report re Lisa Ulrich 

Mr. Hilton next contends the prosecutor falsely informed the court during the 

second trial that a 2008 DNA test excluded Lisa Ulrich as the source of DNA on the shell 

casings. During trial, Washington State Patrol Crime Laboratory scientist Charles 

Solomon testified that he tested the three shell casings from the murder scene and found 

no detectable DNA on anyone shell casing, but was able to combine extracts from all 

three to obtain a very small sample. He concluded the DNA came from female sources, 

conclusively excluding Mr. Hilton. Mr. Solomon said laboratory tester Lisa Turpen 

31 

No.31955-5-III 

In re Pers. Restraint ofHilton 

could possibly have left her DNA on the sample during testing and he could not exclude 

her or other females with allele matches. He also found DNA consistent with Ms. 

Turpin's profile on an extract from one bullet found at the crime scene. Mr. Hilton and 

the victims were excluded as a match for the DNA on that bullet. 

After Mr. Solomon's testimony, and before Ms. Turpen testified, the State 

proposed to offer a January 28, 2008 DNA report completed by Ms. Turpen. When asked 

by the court for an offer of proof of what was new in this recent report, the prosecutor 

stated: 

Ms. Turpen did a DNA analysis of Jennifer Ulrich, Lisa Ulrich, and Carly 

Connell and compared their DNA profiles to the shell casings and the bullet 

Mr. Solomon testified about this morning, and that she concluded that none 

of those three individuals contributed DNA to the shell casings or the 

bullet. 

RP (Feb. 1,2008) at 2670-71. The court denied admission of the report because ofits 

late disclosure to the defense. 

The prosecutor's offer ofproof was mistaken. Ms. Turpen's report actually 

stated with reference to Jennifer Ulrich, Lisa Ulrich, and Lisa's daughter, Carly Connell, 

that no comparisons can be made to the trace DNA profile of limited genetic information 

obtained from the combined extract of the shell casings and the extract of bullet 16. The 

State concedes that the offer of proof was mistaken and overstated the conclusions ofthe 

DNA report. It points out that it was not attempting to mislead the trial judge. 

32 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

The offer of proof was made in connection with the State's request to offer 

evidence that was excluded, and Mr. Hilton does not assign error to the report's 

exclusion. His argument why the overstatement is reversible error is an attenuated one: 

he contends that it was "material to the conclusion that defense counsel presented 

insufficient evidence to allow its theory that Lisa Ulrich was the murderer." Br. in 

Support ofPRP at 38. 

The offer of proof was not made in connection with any argument about the 

sufficiency of evidence to support a third party perpetrator theory. In fact, it is the law of 

the case, based on this court's decision in the second appeal, that Mr. Hilton "never 

sought to blame [Lisa Ulrich] for the killings and does not get to change his theory on 

appeal." Hilton, 164 Wn. App. at 98. 

While this court went on to hold in the second appeal that Mr. Hilton had not 

presented or offered sufficient evidence to blame Ms. Ulrich for the killings in any event, 

we would never weigh an offer ofproof, followed by the exclusion of evidence, as if the 

offer ofproof was itself evidence-nor did we. In discussing the insufficiency of Mr. 

Hilton's third party perpetrator evidence in the second appeal, no consideration was given 

to the possibility that DNA evidence that was never admitted might have cut against the 

theory. Id. at 100-01. 

Mr. Hilton separately asks us to reconsider the sufficiency of his third party 

perpetrator evidence in connection with an ineffective assistance of counsel claim, which 

33 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

we do below. As discussed hereafter, since the State's mistaken overstatement never 

factored into the decision on the second appeal, the disclosure that it was an 

overstatement does not require reconsideration. 

Mr. Hilton fails in his burden under Cook on his due process claims in ground 2. 

Ground 3: Ineffective Assistance ofCounsel 

Mr. Hilton next claims his trial lawyers were ineffective for failing to (1) 

adequately investigate and present the State's evidence of his alibi (the Mantel report), 

and (2) make an adequate offer of proof of their intent to present a third party suspect 

defense. 

To establish ineffective assistance of counsel, Mr. Hilton must show that his 

attorney's performance was deficient and that he was prejudiced by the deficiency. 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State 

v. McFarland, 127 Wn.2d 322,334-35, 899 P.2d 1251 (1995). A petitioner demonstrates 

deficient performance by showing that counsel's conduct fell below an objective standard 

of reasonableness. Strickland, 466 U.S. at 686; Rice, 118 Wn.2d at 888. "In this regard, 

the court must make every effort to eliminate the distorting effects of hindsight and must 

[ ] presume that counsel's conduct constituted sound trial strategy." Rice, 118 Wn.2d at 

888-89 (citing Strickland, 466 U.S. at 689). Defense counsel's duties include making a 

reasonable investigation or making a reasonable decision that a particular investigation is 

unnecessary. Rice, 118 Wn.2d at 889. Defense counsel's decision not to investigate 

34 

No. 31955-5-II1 

In re Pers. Restraint ofHilton 

must be assessed in light of all the circumstances. Id. To show deficient performance, 

the petitioner must show the absence of any conceivable legitimate trial tactic explaining 

counsel's performance. Statev. Grier, 171 Wn.2d 17, 33, 246 PJd 1260(2011);Statev. 

Reichenbach, 153 Wn.2d 126, 130, 101 PJd 80 (2004). To demonstrate prejudice, a 

petitioner must show "a reasonable probability that, but for counsel's unprofessional 

errors, the result of the [trial] would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 

694. 

A. Inadequate investigation ofalibi evidence 

Mr. Hilton supports his claim of inadequate investigation of alibi evidence with 

the declaration of his trial co-counsel, Kevin L. Holt, who states that he was the attorney 

primarily responsible in trial preparation for investigating and presenting the computer 

evidence. Mr. Holt acknowledges receiving the Mantel report in discovery. But he says 

he never understood from the report that Detective Mantel had determined a person was 

using the Ulrichs' computer at 8:07 p.m. on the night ofthe murders, and had he 

understood that fact, he would have called him to testifY. Mr. Holt further states he was 

never informed that Mr. Fluckiger had confirmed Detective Mantel's conclusion that a 

person was using the Ulrichs' computer at 8:07 p.m. and, had he understood, he would 

have interviewed and called Mr. Fluckiger to testifY. Mr. Holt states he had no strategic 

purpose in not presenting evidence to the jury that a person was using the Ulrichs' 

35 

No. 31955-5-II1 

In re Pers. Restraint ofHilton 

computer at 8:07 p.m., when it was undisputed that Mr. Hilton was at home on his 

computer from 7:58 to 8:10 p.m. Mr. Holt states the evidence would have contradicted 

the prosecution's theory that Mr. Hilton killed the Ulrichs before he arrived home at 7:41 

p.m., and would have meant either that they were still alive at 8:07 p.m., or the real killer 

was there using their computer. Mr. Holt states he would have argued that the evidence 

supported the theory that Lisa Ulrich was the killer because she had used her parents' 

computer earlier that day to purchase event tickets and knew how to use it. 

Mr. Hilton's co-counsel, Peter Connick, makes similar statements, although Mr. 

Connick does not remember seeing Detective Mantel's 6-page report. He says he 

undoubtedly reviewed it if it was provided in discovery. 

Mr. Hilton now contends his attorneys Holt and Connick performed deficiently 

by not following up on the Mantel report. He faults counsel for not sufficiently 

interviewing Detective Mantel to learn the meaning of his conclusion, and for not having 

their own expert examine the Ulrichs' computers. He concludes he was prejudiced by 

counsels' failures because had they presented Detective Mantel's conclusion that 

someone was using the Ulrichs' computer until 8:07 p.m., it would have refuted the 

State's theory and given the jury the persuasive missing piece to verifY his alibi. 

Mr. Hilton compares his lawyers' omissions to several cases where convictions 

were reversed because counsel did not follow up on known exculpatory evidence that 

refuted the prosecution theory of the case. First is Baylor v. Estelle, 94 F.3d 1321 (9th 

36 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

Cir. 1996), cert. denied, Duncan v. Baylor, 520 U.S. 1151, 117 S. Ct. 1329, l37 L. Ed. 2d 

489 (1997), where the defendant was convicted of sexual assault. A criminologist's 

pretrial report concluded that seminal fluid tests tended to eliminate the defendant as the 

donor because he was a "secretor" and the semen donor was not. Baylor's counsel knew 

of the reports, but never followed up with the criminalist or sought testing by another 

expert. Counsel was unable to subpoena the criminalist during the trial because he was 

on vacation. The jury therefore never learned about the report. Id. at l323. In 

postconviction proceedings, the court found counsel ineffective for failure to adequately 

investigate the known potentially exculpatory evidence and reversed the convictions. Id. 

at l323-24. 

In Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999), the defendant's conviction for the 

rape and murder of a girl was reversed for ineffective assistance because counsel failed to 

call, or personally interview, three boys who claimed to have seen the victim alive a day 

after petitioner was supposed to have killed her. Counsel conceded in habeas 

proceedings that the boys' statements dovetailed with the defense and would not have 

opened the door to any damaging evidence and presentation of their exculpatory 

testimony would have entailed no risk to the defense. Id. at 1093. 

In Sims v. Livesay, 970 F.2d 1575 (6th Cir. 1992), the defendant was convicted 

of murdering his wife. The prosecution theory was that he shot her from a distance as she 

lay in bed. The defendant claimed he entered the room to find her sitting in bed holding 

37 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

the gun and intending to shoot herself and that she did so as he grabbed for the gun. Id. at 

1576-77. Before trial, defense counsel was in possession of an FBI report revealing there 

was gunpowder residue on a quilt on the bed. This evidence would have contradicted the 

prosecutor's theory that the defendant shot the victim from a distance. Counsel was 

aware that the prosecution would use the lack of powder marks on the victim to argue the 

victim was shot from a distance, but failed to investigate the FBI report and did not 

introduce the quilt into evidence. Id. at 1580. In reversing the conviction due to 

ineffective assistance of counsel, the court reasoned the FBI report disclosed facts 

suggesting the State's theory was easily refutable, and moreover, presented the defense 

with a theory of the case that fully squared with the defendant's version of the events. Id. 

at 1580-81. 

In Alcala v. Woodford, 334 F.3d 862 (9th Cir. 2003), the court found counsel's 

performance deficient for failure to present either of two witnesses who could 

conclusively verify the defendant's alibi that he was at Knott's Berry Farm at the time 

that the murder victim disappeared from another location. In presenting the alibi, the 

attorney relied instead on the testimony of witnesses who could only vaguely recall 

corroborating circumstances. The court held that "[ w ]hen defense counsel undertakes to 

establish an alibi, but does not present available evidence of the time or even the date of 

the alibi, or offer a strategic reason for failing to do so, his actions are unreasonable." Id. 

at 871-72. 

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No. 3 1 955-5-III 

In re Pers. Restraint ofHilton 

Finally, in Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013), the defendant was 

convicted of committing lewd and lascivious acts on his stepdaughter. He alleged his 

counsel was ineffective because he ignored evidence that the victim had recanted her 

allegations in an Internet posting to a friend. Id. at 1161. Cannedy's "trial was largely a 

'he said, she said' case, with no physical evidence linking [Cannedy] to the alleged 

abuse." Id. He was the sole defense witness, and his only defense was that the victim 

had fabricated the allegations. Id. The Internet posting would have explained the 

victim's motive to implicate Cannedy falsely. Id. The court held that under these 

circumstances, "[n]o competent lawyer would have declined to interview such a 

potentially favorable witness when that witness had been clearly identified, the witness 

was easily accessible and willing to provide information, and trial counsel faced a dearth 

of defense witnesses." Id. 

None ofthese cases are helpful to Mr. Hilton because all involved counsel's 

failure to investigate evidence that was exculpatory on its face-in Baylor the defendant 

was a "secretor" and the semen donor was not; in Lord the three boys said they saw the 

victim alive a day after petitioner supposedly killed her; in Sims there was gunpowder 

residue on the quilt; in Alcala the witnesses verified the defendant's alibi that he was at 

Knott's Berry Farm when the murder victim disappeared from elsewhere; and in Cannedy 

the victim recanted her allegations in an Internet posting to a friend. 

39 
No. 31955-5-III 

In re Pers. Restraint ofHilton 

In contrast, Detective Mantel's subjective opinion about "user initiated activity" 

does not establish when hands-on use ended, and for that and the other reasons identified 

by the State (that Mr. Hilton could have been the last user of the Ulrichs' computer and 

that he had time to commit the murders after 8:10 p.m.) the Mantel report does not clinch 

his defense. 

In a second statement of additional authority, Mr. Hilton calls our attention to 

Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015). There, a panel of the Ninth Circuit 

affirmed the district court's granting of habeas relief to the petitioner Hoyt Crace on 

grounds he received ineffective assistance under Strickland because his trial counsel 

failed to request a jury instruction on misdemeanor unlawful disp lay of a weapon as a 

lesser included offense of second degree assault. The jury convicted Crace of the lesser 

degree offense of attempted second degree assault-his third strike resulting in a life 

sentence without possibility ofparole. But the evidence entitled Crace to the unlawful 

display of a weapon instruction had he requested it, and conviction for that offense 

instead of the felony would have avoided a third strike. 

In determining that counsel's performance was deficient under Strickland, the 

court reasoned: 

Crace's attorney's failure to request the instruction was neither strategic nor 

deliberate. In a declaration ... he explicitly stated that the "only reason 

[he] did not offer a lesser included instruction for unlawful display ofa 

weapon was because [he] did not consider it." ... [T]he declaration is 

properly before us and the state has made no attempt to dispute its 

40 

No. 31955-5-II1 

In re Pers. Restraint ofHilton 

assertions. We therefore conclude that Crace's counsel made no strategic 

decision to forgo a lesser included offense instruction that commands our 

deference, and we hold that his outright failure even to consider the 

possibility of requesting a lesser included offense constituted deficient 

performance. 

Crace, at 852 (2nd, 3rd and 6th alterations in original). 

The court concluded that Crace was prejudiced by counsel's shortcoming because 

the evidence would have allowed the jury to rationally choose to convict Crace only of 

unlawful display of a weapon and it was reasonably probable the jury would have done 

so. Crace, at 850-51. This probability, the court concluded, is '" sufficient to undermine 

[our] confidence in the outcome'" so as to satisfy the prejudice prong ofStrickland. Id. 

at 851 (alteration in original) (quoting Strickland, 466 U.S. at 694). 

Here, as in Crace, we take at face value the unrefuted declarations of Mr. Hilton's 

attorneys that they, in essence, simply overlooked Detective Mantel's supposed 

conclusion that someone was using the Ulrichs' computer until 8:07 p.m. But unlike in 

Crace where the admitted evidence readily warranted the critical lesser included 

instruction, any deficient performance by Mr. Hilton's lawyers did not give rise to 

prejudice when the premise that a person was physically present at the Ulrichs' keyboard 

is purely speculative and thus cannot support Mr. Hilton's alibi and theory that Lisa 

Ulrich was the killer. Crace is therefore not helpful to Mr. Hilton. 

41 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

Mr. Hilton is unable to show the essential element of prejudice from his lawyers' 

failure to investigate the Mantel report, call Detective Mantel or Mr. Fluckiger as a 

witness, or have his own expert examine the Ulrichs' computer. 

Mr. Hilton fails his burden under Cook on this claim. 

B. Inadequate offer ofproofre third party suspect defense 

Finally, Messrs. Holt and Connick state in declarations filed in support of the 

petition that, contrary to our inference from the record in the second appeal that they 

never sought to blame Lisa Ulrich for the murders, they fully intended to present that 

third party perpetrator theory, and that their failure to articulate that intent was their error. 

They state it was not for any tactical or strategic purpose. They state they also intended 

to make an adequate record to preserve the issue for appeal. They believed the court's 

exclusion of this evidence and argument was the trial court's most serious error, 

completely frustrating their ability to defend Mr. Hilton. 

Relying on Griffin v. Harrington, 727 F.3d 940 (9th Cir. 20l3), Mr. Hilton now 

claims that counsels' failure to make a clearer record of their intent to present the third 

party perpetrator theory was deficient performance that prejudiced him because it denied 

him the right to present the meritorious defense at trial and defeated appellate review of 

the issue. 

In Griffin, a prison inmate (Wilberger) alone implicated the defendant for 

murder in a recorded statement to police. But defense counsel (Aval) knew Wilberger 

42 

No. 31955-5-II1 

In re Pers. Restraint ofHilton 

would testify differently from his statement and that the State would then offer his 

previously recorded statement as substantive evidence. When Wilberger was called to 

testify, he refused to take the oath. Griffin, 727 F.3d at 942. With no objection from 

defense counsel, the trial court nonetheless proceeded with questioning of Wilberger by 

the State and cross-examination by defense counsel. Wilberger denied implicating the 

defendant. Id. at 943. When the State sought to admit his recorded statement the next 

day, defense counsel objected on the grounds Wilberger had not testified under oath. The 

trial court ruled counsel had waived the objection by not making it when the witness was 

on the stand. The jury convicted Griffin. Id. The conviction was upheld on appeal, and 

in a state habeas proceeding where the court concluded counsel had a credible tactical 

reason for failing to object to the testimony. Id. at 944. 

On federal habeas, the district court granted Griffin's writ and the Ninth Circuit 

affirmed on appeal. The court explained: 

We have no doubt from the record and from Aval's declaration that he 

knew during Wilberger's testimony that his statements in court-in Aval's 

words-"were made without any oath [and] could not technically be 

considered evidence." What Aval did not know and what he did not 

comprehend under settled state law, however, was that by failing timely to 

object to that testimony in combination with conducting cross-examination, 

he was waiving any objection he might have had to Wilberger's testimony. 

The dire consequences of his ignorance on this point was first, that 

Wilberger's prior inconsistent inculpatory statement then became 

admissible against his client; and second, that his client would be barred on 

appeal from raising any issue related to Wilberger's sworn testimony. We 

repeat the California Court ofAppeal's holding on direct appeal: "Because 

defense counsel did not object to Wilberger's testimony but instead went on 

43 

No. 31955-5-111 

In re Pers. Restraint ofHilton 

to cross-examine him, any objection to Wilberger's testimony due to the 

oath taking issue was waived." 

Thus, by waiting to object until after Wilberger had been excused as 

a witness, and until the next day, Aval unwittingly sealed his client's fate, 

both at the trial and on appeal. He subsequently admitted that his failure 

immediately to object was a mistake because he thereby failed "to preserve 

the question for Mr. Griffin's appeal." 

Griffin, 727 F.3d at 945-946 (alterations in original). 

Ultimately, the court held that Griffin was prejudiced by counsel's shortcomings 

in unwittingly waiving his client's confrontation rights when Wilberger's disclaimed 

prior inconsistent statement constituted the only evidence in the prosecution's case that 

Griffin was the shooter. Id. at 948. And on top of other "glaring deficiencies in the 

prosecution's case, no physical evidence linked Griffin to the crime." Id. at 949. The 

. court expressed doubt that Griffin would have been charged with the murder in the first 

place without Wilberger's recorded statement. Id. 

Mr. Hilton contends based on Griffin that his attorneys were likewise ineffective 

because they unwittingly waived his third party perpetrator defense. He claims prejudice 

because the defense was actually viable, particularly given counsel's alleged ineffective 

assistance for not following up on the Mantel report and the State's misrepresentation 

that the DNA report excluded Lisa Ulrich. 

The State, on the other hand, contends counsel made the correct tactical decision 

not to pursue a third party perpetrator argument for a reason we surmised in the second 

44 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

appeal: "because the case against [Lisa Ulrich] was so weak that it would have made the 

defense look desperate," Hilton, 164 Wn. App. at 102, and because there was no legal 

ground for doing so anyway because Mr. Hilton could not meet his burden in the trial 

court to show the evidence created a train of facts or circumstances that clearly pointed to 

Ms. Ulrich as the perpetrator. 

Insofar as the State's argument reflects our holdings in the direct appeal, we agree 

with its contentions. But for purposes of this petition, whether Mr. Hilton (like the 

defendant in Griffin) was prejudiced by any performance or omissions of counsel with 

respect to the "Lisa Ulrich third party perpetrator" defense abides our resolution of Mr. 

Hilton's ground 4, with the ultimate question being whether he presents additional and 

sufficient third party perpetrator evidence for consideration by a jury. As we discuss 

below, Mr. Hilton's arguments fail. 

Ground 4: Denial ofConstitutional Right to Present a Defense 

Mr. Hilton claims he was denied his constitutional right to present a defense when 

the court prohibited him from presenting evidence that Lisa Ulrich was the real killer. 

As a starting point, in PRPs, this court ordinarily will not review issues previously 

raised and resolved on direct review unless the petitioner shows the ends ofjustice would 

be served by reexamining the issue. In re Pers. Restraint ofGentry, 137 Wn.2d 378, 388, 

972 P.2d 1250 (1999); see In re Pers. Restraint ofDavis, 152 Wn.2d 647,671, 101 P.3d 

1 (2004). "This burden can be met by showing an intervening change in the law or some 

45 

No. 31955-5-III 

In re Pers. Restraint 0/Hilton 

other justification for having failed to raise a crucial point or argument in the prior 

application." Gentry, 137 Wn.2d at 388 (internal quotation marks omitted) (quoting In re 

Pers. Restraint o/Taylor, 105 Wn.2d 683, 717 P.2d 755 (1986), abrogated on other 

grounds by In re Pers. Restraint o/Gentry, 179 Wn.2d 614,316 P.3d 1020 (2014)). As 

explained in Gentry: 

We take seriously the view that a collateral attack by PRP on a 

criminal conviction and sentence should not simply be reiteration of issues 

finally resolved at trial and direct review, but rather should raise new points 

of fact and law that were not or could not have been raised in the principle 

action, to the prejudice ofthe defendant. 

Id. at 388-89. 

Thus, in determining to what extent this court will revisit Mr. Hilton's third party 

perpetrator issue, the initial focus is on whether he presents new relevant facts or points 

of law not already inherent in the appeal opinion that are material to that defense. This 

court applied well settled federal and state law in rejecting Mr. Hilton's third party 

perpetrator issue on appeal. See Hilton, 164 Wn. App. at 99-103. We thoroughly 

discussed why the facts did not support that defense even if Mr. Hilton had wanted to 

raise it. Id. at 101-02. Mr. Hilton's purported new facts wiII be viewed through the same 

legal principles as in the appeal, but also with heightened focus in light ofthe State 

Supreme Court's intervening ruling inState v. Franklin, 180 Wn.2d 371,325 P.3d 159 

(2014). 

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No. 31955-5-III 

In re Pers. Restraint ofHilton 

In Franklin, the court reiterated longstanding Washington law stemming from the 

holding in State V. Downs, 168 Wash. 664, l3 P.2d 1 (1932), that other suspect evidence 

is admissible only if the defendant can show "a train of facts or circumstances as tend 

clearly to point out some one besides the [accused] as the guilty party." State v. Franklin, 

180 Wn.2d at 379 (alteration in original) (quoting Downs, 168 Wash. at 667). The court 

stated that the Downs test remains essentially unchanged: "some combination of facts or 

circumstances must point to a non speculative link between the other suspect and the 

charged crime." Franklin, 180 Wn.2d at 381. The Franklin court reiterated that the 

Downs standard for relevance of other suspect evidence is whether there is evidence 

'''tending to connect' someone other than the defendant with the crime." Id. (citation 

omitted) (quoting Downs, 168 Wash. at 667). However, apparently for the first time in 

Washington case law, the Franklin court also explained with respect to the Downs 

relevance inquiry: 

Further, other jurisdictions have pointed out that this inquiry, properly 

conducted, "focuse[ s] upon whether the evidence offered tends to create a 

reasonable doubt as to the defendant's guilt, not whether it establishes the 

guilt of the third party beyond a reasonable doubt." Smithart v. State, 988 

P.2d 583, 588 & n.21 (Alaska 1999). 

Franklin, 180 Wn.2d at 381 (alterations in original). 

Mr. Hilton asks us to reconsider the third party perpetrator issue in view ofwhat 

he considers additional evidence now known that undermines the State's argument 

regarding supposed "lack" of evidence to implicate Lisa Ulrich: (1) the State's expert 

47 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

concluded someone was using the Ulrichs' computer until 8:07 p.m. when Mr. Hilton 

was then at his home on his own computer, and (2) the State's DNA test did not even 

compare, much less exclude, Lisa Ulrich's DNA from that recovered from the shell 

casings found at the scene. Mr. Hilton argues we should revisit the issue in light of the 

prosecutor's withholding of evidence regarding use of the Ulrich computer that Mr. 

Hilton says establishes it is impossible for him to be the murderer, and further adds to the 

balance of circumstantial evidence that Lisa Ulrich is the likely perpetrator. Mr. Hilton 

also says that in the context of the apparent close relationship between prosecutor Miller 

and Lisa Ulrich that earlier gave rise to a defense motion to disqualify Mr. Miller and his 

office before the first trial, the withheld evidence exposes his behavior to protect her from 

being investigated as a suspect and makes purported lack of evidence against her 

unreliable as a result of a tainted investigation. 

As discussed, the Mantel report (which the defense had all along) and the 

Fluckiger opinion do not provide evidence that anyone was in fact physically present at 

the Ulrichs' computer at 8:07 p.m.-only speculation that cannot tend to place Lisa 

Ulrich (or anyone else) there at that time; and, and most critically, cannot tend to create 

reasonable doubt as to Mr. Hilton's gUilt when he cannot show that anyone was actually 

present at the keyboard. As for the DNA report, the State's overstatement of its offer of 

proof was not evidence and was not considered in finding Mr. Hilton's third party 

perpetrator evidence insufficient earlier, so there is no reason to "reconsider" the issue on 

48 

No. 31955~5-III 

In re Pers. Restraint ofHilton 

that basis at all. These items add nothing to the quantum of evidence already discussed in 

the appeal. Nor does the Franklin case give cause to revisit our appeal decision. 

Mr. Hilton further contends there are additional reasons for us to revisit the issue. 

He first refers to an anonymous non-traceable telephone call from a citizen to the police 

on March 29, 2002, in which the caller stated that Lisa Ulrich's parents disliked her new 

boyfriend, intended to cut off financial support to her, and to pursue custody of her 

children because they disapproved of how she was raising them. He also refers to a 

police report documenting another anonymous telephone call from a citizen on April 3, 

2002, in which the caller said he saw Lisa Ulrich and her boyfriend (Joe Yahne) at Fred 

Rumsey's house on March 24, 2002, and that either Lisa or Joe was carrying a black 

object that they did not have when they left. The caller did not know what the object 

was. The police contacted Mr. Rumsey. He had no idea what someone might have seen, 

but said he did not recall them bringing anything to his house except personal items. 

Pet'r's Br. in Support ofPRP, Appendix H.6 Mr. Hilton now asserts that if counsel could 

question Ms. Ulrich on these matters, the jury would be permitted to assess from her 

answers whether she had a motive to kill her parents and whether she had access to 

someone (e.g. Mr. Yahne or Mr. Rumsey) who would have been able to help her commit 

6 Attorney Holt states in his declaration that the defense knew about both 

telephone calls at the time of trial and wanted to present the evidence but could only 

establish relevance if they could argue Lisa Ulrich was the murderer. 

49 
No. 31955·5-111 

In re Pers. Restraint ofHilton 

the crimes. Mr. Hilton additionally states if allowed to present his theory, counsel would 

have argued Lisa Ulrich was familiar with her parents' computer because she had used it 

earlier on the day ofthe murder. And, according to Mr. Hilton, Lisa had no alibi up until 

8:30 p.m. on March 20. Mr. Hilton contends he is entitled to a new trial to present the 

above evidence. 

The anonymous telephone calls, the unknown black object that cannot be 

identified, and Lisa Ulrich's familiarity with her parents' computer are insufficient 

support for a third party perpetrator claim because they contribute nothing to a train of 

circumstances that tend to point to Lisa Ulrich as the guilty party, nor do they tend to 

create any reasonable doubt as to Mr. Hilton's guilt. Over a decade after the anonymous 

caBs were made, and following defense investigation for two trials and this petition, there 

is still no substantiation for the hearsay innuendo against Ms. Ulrich conveyed in the 

anonymous 2002 calls. As the State points out, there could be no cross-examination 

regarding the anonymous telephone calls and unknown black object. 

Given that Mr. Hilton still fails to present sufficient relevant evidence to allow him 

to present to a trier of fact the theory that Lisa Ulrich murdered her parents, none ofthe 

several cases on which he relies are helpful to him. 

In United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010), the court held that 

the defendant was denied his constitutional right to present a defense when the trial court 

excluded relevant and reliable evidence probative to the central issue ofwhether he was 

50 

No.3l955-5-II1 

In re Pers. Restraint ofHilton 

complicit with Hispanic individuals in a marijuana growing operation on his mother's 

remote land bordering Forest Service property in Oregon. The case against Stever was 

circumstantial. His proffered defense was that a Mexican drug trafficking organization 

(DTO) grew the marijuana and he had no knowledge of the operation. Id. at 756. His 

offer ofproof included government reports describing Mexican DTO operations on 

public and private land and an expert witness who would testify that such operations in 

Oregon excluded local Caucasian landowners. Id. By excluding the evidence, the trial 

court prevented him from making his defense at all. Id. at 757. He was thus confined to 

poking holes in the government's case and, as his lawyer argued in closing, holding the 

prosecution to its burden ofproof. The court concluded Stever's Sixth Amendment rights 

were violated. Id. 

As in Stever, Mr. Hilton contends the trial court's ruling on third party perpetrator 

evidence precluded him from pointing to any alternative explanation for who committed 

the crime and confined him to poking holes in the State's case and holding the State to its 

burden ofproof, thus literally preventing him from making his defense. He complains 

that he was left with no way to respond to the prosecutor's query in closing argument, 

"Who else could it be? Who else could it be? No one. No one." RP (Feb. 13,2008) at 

3819. And the prosecutor's additional statement in closing, "No other reasonable, logical 

explanation as to who killed the Ulrich[s] but the defendant." Id. at 3838. 

51 
No. 31955-5-III 

In re Pers. Restraint ofHilton 

Unlike in Stever, Mr. Hilton did not seek to present a third party perpetrator 

theory. But even ifhe had, unlike the offer of proof in Stever, he fails to present relevant 

and reliable evidence to support a defense that Lisa Ulrich was the killer. Moreover, Mr. 

Hilton was also fully able to argue his alibi defense, albeit unsuccessfully. 

Mr. Hilton also cites Kyles v. Whitely, 514 U.S. at 442 n.l3, as instructive for the 

concept that the State's withholding of material eXCUlpatory evidence in violation of 

Brady deprived him of the chance to further underscore through cross-examination that 

Lisa Ulrich was the killer. But as discussed, the State did not commit a Brady violation 

because it did not withhold material exculpatory evidence pertaining to the Ulrichs' 

computer-much less evidence pointing to Lisa Ulrich as the perpetrator. 

Finally, citing to United States v. Vallejo, 237 F.3d 1008, amended by 246 F.3d 

1150 (9th Cir. 2001), Mr. Hilton contends that in the direct appeal, this court failed to 

recognize it is the role of the jury to consider the relative weight ofthe evidence against 

Lisa Ulrich and determine whether it presents legitimate alternative theories for how the 

crime occurred. 

In Vallejo, the defendant was charged with importing marijuana hidden in 

compartments of his recently purchased car. He denied knowledge of the drugs. The 

trial court excluded his proffered evidence that the still registered former owner ofthe car 

had a month earlier been arrested, and since convicted and deported, for bringing a 

similar amount of marijuana across the border, at the same port of entry, using the same 

52 

No. 31955-5-III 

In re Pers. Restraint ofHilton 

method of concealment, but in a different car. Vallejo, 237 F.3d at 1022-23. On appeal, 

the court held the exclusion of this evidence of third party culpability was an abuse of 

discretion because "the similarity of circumstances surrounding [the former owner's] 

arrest provid[ed] an alternative theory of how the drugs were secreted in Vallejo's car 

without his knowledge," and had "unique relevance to the central defense theory that 

Vallejo did not know of the drugs in the car." Id. at 1023. The court further explained 

that exclusion of the evidence precluded him from answering the question by jurors: "If 

defendant did not know there were drugs in the car and did not place them there himself, 

who did?" Id. at 1023. 

In arriving at its decision, the Vallejo court quoted from Professor Wigmore: 

[I]fthe evidence [that someone else committed the crime] is in truth 

calculated to cause the jury to doubt, the court should not attempt to decide 

for the jury that this doubt is purely speCUlative and fantastic but should 

afford the accused every opportunity to create that doubt. 

Id. at 1023 (alterations in original) (quoting lA JOHN HENRY WIGMORE, EVIDENCE IN 

TRlALSATCOMMON LAW § 139 (Tillers rev. ed. 1983)). The Vallejo court continued: 

Accordingly, it is the role of the jury to consider the evidence and 

determine whether it presents "all kinds of fantasy possibilities," as the 

district court concluded, or whether it presents legitimate alternative 

theories for how the crime occurred. 

Id. at 1023. 

Mr. Hilton seizes upon this reasoning to contend all of his evidence pertaining to 

Lisa Ulrich is admissible on a third party perpetrator theory and the court erred in 

53 

No. 31955-5-111 

In re Pers. Restraint ofHilton 

refusing to allow it. But besides his previous waiver of the issue already confirmed in the 

direct appeal, he also overlooks the context of Vallejo, where the third party perpetrator 

evidence was admissible because it was directly probative of Vallejos' culpability for the 

crime. Id. As this court held in the appeal, Mr. Hilton proffered no such evidence in the 

trial court. Nor does he point to any alleged third party perpetrator ~vidence in this 

petition that warrants consideration by a jury. Vallejo (with its reliance on Wigmore) is 

not helpful to Mr. Hilton. 

Mr. Hilton makes no showing that the interests ofjustice require us to further 

revisit his third party perpetrator issue-either on his alleged lack of waiver or the merits 

of the claim. Gentry, 137 Wn.2d at 388. We decline to do so and reject his ground 4 

arguments. We also reject the additional extensive attempts by Mr. Hilton (and the State) 

in their briefing to rehash trial evidence already weighed by the jury and purported third 

party perpetrator evidence already ruled not relevant to that theory. 

Referring back to the ineffective assistance claim in ground 3, given the lack of 

relevant admissible third party perpetrator evidence, Mr. Hilton cannot show prejudice by 

any performance or omissions of counsel under the Strickland standards with respect to 

the Lisa Ulrich third party perpetrator issue. We, thus, likewise reject his ground 3 

ineffective assistance of counsel argument for failure to meet his burden under Strickland 

and Cook. 

54 

No. 3 I 955-5-III 

In re Pers. Restraint ofHilton 

In light of our holdings rejecting each of Mr. Hilton's four grounds for relief, we 

also deny his motion to disqualify Benton County Prosecutor Andrew Miller and his 

office from this matter, and his motion for discovery and an evidentiary hearing. Both 

motions are premised on the State's alleged possession of evidence that contradicted its 

theory presented at trial to convict Mr. Hilton, that it withheld Brady evidence, and that it 

knowingly made false statements to the court. Mr. Hilton asserts these matters present 

"newly discovered evidence not available to the defense at the time of trial," that requires 

Mr. Miller and members of his office who were involved in this case to submit written 

statements or appear as witnesses in reference proceedings to respond to the factual 

allegations of the State's own experts from its investigation. Mot. for Disc. and 

Evidentiary Hr' gat 1-2; Mot. to Disqualify Prosecutor at 1-2. Mr. Hilton further states 

that witnesses who have already voluntarily provided statements may, under direct 

questioning, have additional material evidence to support his claims. He also suggests 

that this court require the State to admit or deny specific allegations raised by his 

evidence. RAP 16.9(b). Mot. for Disc. and Evidentiary Hr'g at 2. 

First, to obtain an evidentiary hearing, "the petitioner must demonstrate that he has . 

competent, admissible evidence to establish the facts that entitle him to relief." Rice, 118 

Wn.2d at 886. The petitioner's factual allegations must be "based on more than 

speculation, conjecture, or inadmissible hearsay." Id 

55 

No. 31955-5-111 

In re Pers. Restraint ofHilton 

Mr. Hilton fails this burden. He has produced no prima facie facts that entitle him 

to relief-only speculation, conjecture, or innuendo that is not evidence sufficient to 

command reference proceedings or necessitate further response from the State. The 

purpose of an evidentiary hearing is to resolve genuine factual disputes, not to determine 

whether the petitioner actually has evidence to support his allegations. Id. Mr. Hilton 

fails to show that an evidentiary hearing-or discovery for what is in essence a fishing 

expedition-is warranted here. These circumstances likewise render his motion for 

disqualification unsupportable and without merit. Both of his motions are denied. 

Mr. Hilton makes no claim entitling him to relief in a personal restraint petition. 

He fails his burden under Cook and Rice. 

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. 

WE CONCUR: 


Brown, J. 

56