FILED 


SEPTEMBER 3, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DMSION THREE 


In the Matter ofthe Personal Restraint ) 

Petition of: ) No. 27257-5-III 

) 

LYLE L. HUTCHINS, ) 

) 

Petitioner. ) UNPUBLISHED OPINlON 

KORSMO, J. - This personal restraint petition (PRP) attempts to litigate a public 

trial violation as ifthe case was on appeal rather than on collateral attack. Since the 

Washington Supreme Court has rejected this approach, we dismiss this petition for failure 

to establish prejudice. 

FACTS 

This case has a lengthy procedural history, primarily due to the evolving area of law 

presented by the PRP. On February 3, 2003, four-year-old A.M. was left at the home of 

Lyle Hutchins to play with Mr. Hutchins's four-year-old son. An hour later, Mr. Hutchins 

returned A.M. to her home. A.M. then told her mother that Mr. Hutchins had touched her 

vagina and described a pornographic film that he had shown her. The incident was 

immediately reported to the police and charges were soon filed. 

At a pretrial hearing, the State presented A.M. as a witness, but she was unable to 

take the stand or give any statements. Defense counsel stated that she had been similarly 
No. 27257-5-111 

In re Pers. Restraint ofHutchins 

unresponsive when he had attempted to interview her previously. The court then found 

A.M. to be unavailable to testifY and subsequently admitted hearsay statements she made to 

her mother and to a counselor as evidence at trial. During jury selection, the court 

conducted private interviews in chambers with a number of the potential jurors concerning 

certain juror questionnaire responses. 

Later at trial, the prosecutor asked Debra Hutchins, Mr. Hutchins's mother, whether 

it would surprise her to learn that her son had told police that A.M. and her father were at 

the residence Ms. Hutchins shared with her son on the third of February. Report of 

Proceedings (RP) at 567. The court sustained an objection, and the prosecutor rephrased the 

question to ask whether it would be correct to state that A.M. and her father came to the 

residence that day at around five o'clock, stayed for 45 minutes, and then left. Ms. 

Hutchins responded that it would be incorrect, because she was there at 5 :30 and no one else 

was there. RP at 568. 

The jury subsequently found Mr. Hutchins guilty and he appealed. This court 

affirmed his conviction, finding that the trial court did not err in admitting A.M.'s hearsay 

statements and excluding evidence of A.M.'s father's criminal history. See State v. 

Hutchins, No. 24559-4-111 (Feb. 27, 2007). On July 18,2008, Mr. Hutchins filed the 

present PRP, claiming a public trial right violation, among other constitutional violations. 

The petition was stayed pending decisions in State v. Strode, 167 Wn.2d 222,217 

P.3d 310 (2009), and State v. Momah, 167 Wn.2d 140,217 P.3d 321 (2009). Following 

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In re Pers. Restraint ofHutchins 

those decisions, this court lifted the stay and accepted briefing, but then imposed a second 

stay pending decisions in State v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012), and In re 

Personal Restraint ofMorris, 176 Wn.2d 157,288 P.3d 1140 (2012). In January of2013, 

this court again lifted the stay and requested supplemental briefing on the applicability of 

the decisions in Wise, Morris, and State v. Paumier, 176 Wn.2d 29,288 P.3d 1126 (2012). 

At this point Mr. Hutchins amended his petition to include a claim that appellate counsel 

was ineffective for failing to raise the public trial right violation. The petition then was 

stayed twice more, and finally lifted following the recent decisions in In re Personal 

Restraint ofSpeight, 182 Wn.2d 103,340 P.3d 207 (2014), and In re Personal Restraint of 

Coggin, 182 Wn.2d 115,340 P.3d 810 (2014). 

ANALYSIS 

The petition asserts violations of Mr. Hutchins's constitutional rights to a public trial, 

to confront the witness against him, and to a jury trial. We will consider each assertion in 

tum. The amendment additionally claims that appellate counsel was ineffective, which we 

will address in conjunction with the public trial issue. 

Relief will only be granted in a PRP if there is a constitutional error that caused 

substantial, actual prejudice or if a nonconstitutional error resulted in a fundamental defect 

constituting a complete miscarriage ofjustice. In re Pers. Restraint ofWoods, 154 Wn.2d 

400,409, 114 P.3d 607 (2005). It is the petitioner's burden to establish this threshold by a 

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preponderance of the evidence. In re Pers. Restraint ofLord, 152 Wn.2d 182, 188, 94 P.3d 

952 (2004). 

Public Trial Right 

Mr. Hutchins has readily established a violation of a constitutional right. Absent an 

on the record analysis and justification, questioning of potential jurors in chambers 

constitutes an improper courtroom closure in violation of article I, § 22 of the Washington 

Constitution. Wise, 176 Wn.2d at 11. However, Mr. Hutchins presents no evidence of 

any actual prejudice resulting from that violation. Rather, he argues that prejudice should 

be presumed because public trial right violations are structural errors that, when raised on 

appeal, automatically entitle the defendant to a new trial. See id. at 13 -15. The 

Washington Supreme Court recently rejected this argument in the PRP context and those 

decisions govern here. Speight, 182 Wn.2d at 107; Coggin, 182 Wn.2d at 119-122. 

Because he has not demonstrated any actual prejudice from the in chambers questioning, 

Mr. Hutchins is not entitled to relief. 

Recognizing this infirmity, Mr. Hutchins amended his petition to include a claim 

that appellate counsel was ineffective for failing to raise the public trial right violation. I 

I Mr. Hutchins contends that this court raised the issue sua sponte in our request for 

supplemental briefing. Following the initial stay, this court requested briefing concerning 

the applicability of three intervening decisions. The fact that one of those decisions was 

resolved on ineffective assistance of counsel grounds does not mean that the request for 

supplemental briefing added that issue to the current petition. See Morris, 176 Wn.2d at 

166-167. 

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However, this amendment came more than four years after the judgment and sentence 

became fina1. 2 A collateral attack on a facially valid judgment and sentence, rendered by a 

court of competent jurisdiction, is barred if more than one year has elapsed since the 

judgment and sentence became final. RCW 10.73.090(1). An amendment to a PRP does 

not relate back to the original filing, so new claims must be timely raised. 3 In re Pers. 

Restraint ofHaghighi, 178 Wn.2d 435, 446-447, 309 P.3d 459 (2013). A challenge to the 

effectiveness of counsel does not implicate the court's jurisdiction or the facial validity of 

the judgment and sentence, nor does it fall within one of the statutory exceptions to the 

one-year time bar.4 In re Pers. Restraint ofAdams, 178 Wn.2d 417,422-423,309 P.3d 451 

(2013); RCW 10.73.100. Consequently, this claim is untimely and will not be considered. 

Availability ofA.M 

Mr. Hutchins contends that the trial court erred in finding A.M. unavailable to testifY 

as a precursor to admitting her hearsay statements. First, he argues that the trial court was 

2 The judgment became final on September 29, 2008, when this court issued the 

mandate on the appeal. See RCW 10.73.090(3). 

3 Mr. Hutchins contends, without support, that the procedural rules governing 

federal habeas petitions, which allow amendments to relate back, preempt state rules. 

4 Mr. Hutchins argues that this court should consider the issue nonetheless, 

because the law was unclear when he filed the PRP, invoking the spirit ofthe exception 

for retroactive changes in the law. See RCW 10.73.100(6). This is essentially an 

argument that the time bar should be equitably tolled. See In re Pers. Restraint ofBonds, 

165 Wn.2d 135, 196 P.3d 672 (2008). Regardless, this argument is self-defeating. Mr. 

Hutchins cannot simultaneously argue that the law relating to public trial rights was clear 

enough that appellate counsel's performance was deficient for failing to raise the issue, 

but so unclear that he could not have known ofthat deficiency. 

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In re Pers. Restraint ofHutchins 

statutorily required to conduct a separate competency or availability hearing. However, 

RCW 9A.44.120 merely requires certain determinations be made outside the presence of the 

jury. The trial court determined that A.M. was unavailable during the pretrial hearing on 

the admissibility of her hearsay statements. There is no statutory requirement that an 

additional determination of unavailability be made at trial. 

Next, Mr. Hutchins argues his right to confrontation was violated when the trial 

court found A.M. unavailable without exploring the possibility ofhaving A.M. give 

testimony by closed-circuit television. See RCW 9A.44.150. A witness can only be 

considered unavailable where the State has made a good faith effort to obtain the 

witness's presence at trial. State v. Ryan, 103 Wn.2d 165, 170,691 P.2d 197 (1984). 

Where there is evidence that a child victim may be able to testify by alternative means, 

the State must utilize its available options to secure that testimony. State v. Smith, 148 

Wn.2d 122, 136, 59 P.3d 74 (2002). 

Here, there is no evidence that A.M. might have been able to testify by alternative 

means. The fact that she made the original hearsay statements to her mother and a 

counselor does not indicate that she would have been responsive to counsel in an 

alternative setting. To the contrary, defense counsel conceded that A.M. was 

unresponsive during his previous attempts to interview her. RP at 168. As a result, the 

State satisfied its good faith obligation by presenting A.M. at the pretrial hearing, and the 

court did not err in finding her unavailable to testify. 

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Jury Trial Right 

Mr. Hutchins contends that his constitutional rights were violated when the 

prosecutor elicited testimony from his mother characterizing him as a liar. Testimony 

concerning the veracity of another witness is improper since it invades the province of the 

jury. State v. Padilla, 69 Wn. App. 295, 299, 846 P.2d 564 (1993). The State argues that 

the testimony was acceptable because it did not state whether a particular witness was 

truthful, but merely whether the witness was correct. See State v. Ramos, 164 Wn. App. 

327,334,263 P.3d 1268 (2011); State v. Wright, 76 Wn. App. 811, 822, 888 P.2d 1214 

(1995). Mr. Hutchins replies that this distinction is irrelevant, and that a statement that 

another witness is incorrect is a statement as to the veracity of that witness. See State v. 

Walden, 69 Wn. App. 183, 186-187,847 P.2d 956 (1993). However, we need not 

address these arguments because the testimony did not actually state that another witness 

was incorrect, much less lying. 

Ms. Hutchins testified that it would be incorrect to say that A.M. and her father 

came to the Hutchins's residence at around 5 o'clock and stayed for 45 minutes, because 

they were not there when she returned home at 5:30. RP at 567-68. This testimony does 

not reference any particular witness, nor did any witness make that statement. 5 

5 Mr. Hutchins did state that A.M. and her father came over and stayed for about 

45 minutes, but he was unspecific as to the time of the event. RP at 442-444; 589-590. 

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Consequently, this testimony did not invade the province ofthe jury, and there was no 

error. 

The PRP has not met its heavy burdens of establishing error and resulting 

substantial prejudice. The petition is dismissed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Korsmo,p 

WE CONCUR: 

Brown, A . .1. 

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