Personal Restraint Petition of Kevin Lee Hilton

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 of the 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 ) UNPUBLISHED OPINION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 of parole imposed for his 2008 Benton County

conviction of two counts of aggravated first degree murder in the shootings of his

landlords Lawrence and Josephine Ulrich. Mr. Hilton was originally convicted of the

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 of proceedings
are to the report of proceedings for that appeal.

2

 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.

II Officers and a paramedic who responded to the scene observed a partial boot or

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

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

3

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 of the 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

4

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.

5

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 of those

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 of Mr. Hilton's

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

7

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

10

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 of the 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 of the proceeding would have been different.'" Id. (internal quotation

11

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 if the 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.

12
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.

13

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.

14

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 of the 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 sheriff s detective wearing Stenson's jeans with the right

15

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

16

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

17

No. 31955-5-II1
In re Pers. Restraint ofHilton

not commit a Brady violation by not bringing the evidence to the attention
of the 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 of Hilton, 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 of the 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 of Detective Mantel by defense investigator

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

account of matters Detective Mantel would testify to if called. Detective Mantel's

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

18

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 of the 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

19

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 of the 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 of Mr. 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 DNA4 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 of the 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 of passion.

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 of the 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 of the 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 of proof 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 of the

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 of proof, followed by the exclusion of evidence, as if the

offer of proof 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 of the 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.

38

No. 3 1955-5-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 of these 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 of parole. 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 of Strickland. 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 of Appeal'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 of the 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 of the State

Supreme Court's intervening ruling inState v. Franklin, 180 Wn.2d 371,325 P.3d 159

(2014).

46

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 of what

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 of the 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 of the

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 of whether 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 of proof 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 of proof. 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 of proof, 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 of the 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 of the 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