### FILED SEPTEMBER3,2015 In the Office ofthe ClerkofCourt WA StateCourt ofAppeals, Division III
INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DMSIONTHREE Inthe Matter ofthe PersonalRestraint ) Petition of: ) No. 27257-5-III ) LYLE L. HUTCHINS, ) ) Petitioner. ) UNPUBLISHED OPINlON
KORSMO,

### J.

- Thispersonal restraintpetition (PRP) attempts to litigate a public trial violation as ifthe case was on appeal ratherthan on collateral attack. Sincethe Washington Supreme Courthasrejected this approach, wedismiss thispetition for failure toestablishprejudice. FACTS This casehas a lengthyprocedural history, primarily due to the evolving area oflaw presented by the PRP. OnFebruary 3, 2003, four-year-old A.M. was left atthehome of Lyle Hutchins toplay with Mr. Hutchins's four-year-old son. Anhour later, Mr. Hutchins returnedA.M. toherhome. A.M. thentoldher motherthatMr. Hutchinshad touchedher vaginaand described a pornographic film thathe had shownher. The incidentwas immediatelyreportedtothe police and chargeswere soon filed. At a pretrial hearing, the StatepresentedA.M. as a witness, but she was unableto take the stand orgive any statements. Defense counsel statedthat she had been similarlyNo. 27257-5-111 In re Pers. Restraintof Hutchins unresponsive when he had attempted to interviewher 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. Duringjury selection, the court conductedprivate interviews in chambers with a number ofthe potentialjurors concerning certainjurorquestionnaire responses. Later at trial, the prosecutor asked Debra Hutchins, Mr. Hutchins's mother, whether it would surpriseherto 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 ofFebruary. Report of Proceedings (RP) at 567. The court sustained an objection, and the prosecutorrephrased the question to ask whether it would be correct to statethat 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 itwould be incorrect, because she was there at 5:30 and no one else
was there. RP at 568. Thejury subsequently found Mr. Hutchins guilty and he appealed. This court affirmed his conviction, finding thatthe trial court did not err in admitting A.M.'s hearsay statements and excluding evidence ofA.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 apublic 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 140,217P.3d 321 (2009). Following
2No. 27257-5-111 In re Pers. Restraint of Hutchins those decisions, this court lifted the stay and accepted briefing, butthen imposed a second stay pending decisions in State v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012), andIn re PersonalRestraint of Morris, 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, andState v. Paumier, 176 Wn.2d 29,288 P.3d 1126 (2012). Atthis 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 of Speight, 182 Wn.2d 103,340 P.3d 207 (2014), andIn re PersonalRestraintof Coggin, 182 Wn.2d 115,340 P.3d 810 (2014). ANALYSIS The petition asserts violations ofMr. Hutchins's constitutional rights to a public trial, to confront the witness against him, and to ajurytrial. 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. Reliefwill only be granted in a PRP ifthere is a constitutional error that caused substantial, actual prejudice or ifa nonconstitutional error resulted in a fundamental defect constituting a complete miscarriage of justice. In re Pers. RestraintofWoods, 154 Wn.2d 400,409, 114 P.3d 607 (2005). 

### It is the petitioner's burden to establish this threshold by a

3No. 27257-5-II1 In re Pers. Restraintof Hutchins preponderance ofthe evidence. In re Pers. Restraintof Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). Public TrialRight Mr. Hutchins has readily established a violation ofa constitutional right. Absent an
on the record analysis andjustification, questioning ofpotentialjurors in chambers constitutes an improper courtroom closure in violation ofarticle I, § 22 ofthe 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 rightviolations are structural errors that, when raised on appeal, automatically entitlethe defendant to a new trial. See id. at 13-15. The Washington Supreme Courtrecently 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 amendedhis 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 ourrequest for supplemental briefing. Followingthe initial stay, this court requested briefing concerning the applicability ofthree intervening decisions. The fact that one ofthose decisions was resolved on ineffective assistance ofcounsel grounds does not mean that the request for supplemental briefing added that issue to the currentpetition. See Morris, 176 Wn.2d at 166-167. 4No. 27257-5-II1 In re Pers. Restraint of Hutchins However, this amendment came more than four years afterthejudgmentand sentence became fina1. 2 A collateral attack on a facially validjudgmentand sentence, rendered by a court ofcompetentjurisdiction, is barred ifmore than one year has elapsed since the judgmentand sentence became final. RCW 10.73.090(1). An amendment to a PRP does notrelate back to the original filing, so new claims must be timely raised. 3 In re Pers. RestraintofHaghighi, 178 Wn.2d 435, 446-447, 309 P.3d 459 (2013). A challenge to the effectiveness ofcounsel does not implicatethe court'sjurisdictionorthe facial validity of thejudgment and sentence, nor does it fall within one ofthe statutory exceptions to the one-yeartime bar.4 In re Pers. Restraint of Adams, 178 Wn.2d417,422-423,309P.3d 451 (2013); RCW 10.73.100. Consequently, this claim is untimely and will not be considered. Availabilityof A.M Mr. Hutchins contends that the trial court erred in finding A.M. unavailable to testifY
as aprecursorto admittingher hearsay statements. First, he argues thatthe trial court was

2 Thejudgmentbecame final on September 29, 2008, whenthis court issuedthe mandate on the appeal. See RCW 10.73.090(3). 3 Mr. Hutchins contends, without support, that theprocedural rules governing federal habeas petitions, which allow amendments to relate back, preempt staterules. 4Mr. Hutchins argues that this court should consider the issue nonetheless, because the law was unclear when he filed the PRP, invokingthe 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. Restraintof Bonds, 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'sperformance was deficient for failing to raise the issue, but sounclearthat he could not have known ofthat deficiency. 5No. 27257-5-111 In re Pers. Restraint of Hutchins statutorily required to conduct a separate competency or availability hearing. However, RCW 9A.44.120 merely requires certain determinations be made outside the presence ofthe jury. The trial court determined that A.M. was unavailable during thepretrial hearing on the admissibility ofher hearsay statements. There is no statutory requirement that an additional determination ofunavailability 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 ofhavingA.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 obligationby presenting A.M. at the pretrial hearing, and the court did not err in finding her unavailable to testify.
6No. 27257-5-111 In re Pers. Restraintof Hutchins Jury TrialRight Mr. Hutchins contends that his constitutional rights were violated when the prosecutor elicitedtestimony from his mother characterizing him as a liar. Testimony concerning the veracity ofanother witness is improper since it invades the province ofthe 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 particularwitness 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 statementthat another witness is incorrect is a statement as to the veracity ofthat 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 particularwitness, 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 ofthe event. RP at 442-444; 589-590. 7No. 27257-5-II1 In re Pers. Restraintof Hutchins Consequently, this testimony did not invade the province ofthejury, and there was no
error. The PRP has not met its heavy burdens ofestablishing error and resulting substantial prejudice. The petition is dismissed. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Korsmo,p WE CONCUR:
Brown, A . 

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