Personal Restraint Petition Of Daniel S. Amador, Ii

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint No. 83262-0-I

Petition of:

DIVISION ONE

DANIEL S. AMADOR, II,

UNPUBLISHED OPINION

Petitioner.

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

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

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

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

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

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

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

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

assistance by failing to impeach principal witnesses and failing to present

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

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

FACTS

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

relief are set out in our opinion affirming the convictions on direct appeal. State v.

No. 83262-0-I/2

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

(unpublished),

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

described the trial testimony and the procedural facts:

Amador served as a Seattle Police Department officer for 21

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

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

disrespected Melanie. As a form of disciplining the children,

Amador often used a common police “takedown technique” known

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

arms so they couldn’t get up.”

...

In October 2014, Melanie learned Amador was having an

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

Amador and Melanie divorced in December 2015. Amador married

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

together.

...

The State charged Amador with one count of domestic

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

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

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

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

charged Amador with one count of domestic violence child

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

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

granted his motion to sever.

During trial, several witnesses testified about the overly

affectionate relationship between Amador and A.A. Family friend

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

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

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

Melanie testified similarly, saying Amador was “obsessed” with

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

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

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

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

with her. He continued this until A.A. moved out of the house at 19

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No. 83262-0-I/3

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

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

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

Melanie felt uncomfortable with this behavior, she never told

anyone. When CPS became involved, Melanie minimized her

concerns out of fear of losing her children.

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

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

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

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

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

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

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

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

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

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

blocked by a dresser.

...

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

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

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

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

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

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

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

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

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

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

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

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

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

sexual abuse escalated to anal sex.

...

The jury found Amador guilty on the four counts related to

A.A. Amador then entered an Alford 1 plea to an amended charge of

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

imposed a concurrent indeterminate sentence at the high end of the

standard sentencing range of 280 months to life.

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

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

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

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

appointed counsel.

DISCUSSION

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

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

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

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

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

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

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

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

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

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

Amador alleges constitutional errors stemming from the trial court’s

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

counsel, and ineffective assistance of trial counsel.

I. Trial Court’s Implementation of GR 37

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

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

requiring the party making a peremptory challenge to request a preemptive GR

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

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

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

error warranting relief.

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

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

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

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

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

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

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

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

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

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

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

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

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

was not per se reversible error).

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

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

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

2 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

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

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

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

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

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

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

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

requirements was error.

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

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

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

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

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

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

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

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

Ed. 2d 320 (2009)).

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

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

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

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

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

process.

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

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

trial court’s interpretation of the rule.

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

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

II. Ineffective Assistance of Appellate Counsel

Amador asserts several instances of ineffective assistance of appellate

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

section 22 of the Washington Constitution guarantee the right to effective

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

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

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

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

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

petitioner must demonstrate that defense counsel’s representation fell below

an objective standard of reasonableness and the deficient representation

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

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

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

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

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

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

ineffective assistance of appellate counsel claims below.

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No. 83262-0-I/8

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

1251 (1995).

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

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

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

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

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

App. 2d at 843-44.

A. GR 37 Challenges

Amador contends that appellate counsel for his direct appeal was

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

trial.

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

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

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

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

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

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

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

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

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

implicit, institutional, and unconscious biases, in addition to purposeful

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

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

following:

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

juror, which may include consideration of whether the party

exercising the peremptory challenge failed to question the

prospective juror about the alleged concern or the types of

questions asked about it;

(ii) whether the party exercising the peremptory challenge asked

significantly more questions or different questions of the potential

juror against whom the peremptory challenge was used in contrast

to other jurors;

(iii) whether other prospective jurors provided similar answers but

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

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

race or ethnicity; and

(v) whether the party has used peremptory challenges

disproportionately against a given race or ethnicity, in the present

case or in past cases.

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

challenge because they have been historically associated with improper

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

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

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

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

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

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

standard of review where “there were no actual findings of fact and none of the

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No. 83262-0-I/10

trial court's determinations apparently depended on an assessment of

credibility”).

1. Juror 12

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

public and clarified the reason for the question,

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

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

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

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

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

them, they’re saying the same story, that is important.

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

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

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

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

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

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

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

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

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

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

saying or how they’re reacting is not right?

JUROR 12: Yes.

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

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

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

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

or not you choose to believe them.

JUROR 12: Correct.

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

JUROR 12: Yes.

The State subsequently moved to exercise a peremptory challenge

against juror 12 and offered its reasoning:

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

excuse Juror Number 12, the first part was imagining situations

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

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

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

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

false.

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

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

members or something in the audience and they react in a

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

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

saying.

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

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

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

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

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

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

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

there may be family members or supporters in the courtroom.

That was my thinking with respect to Juror Number 12.

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

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

challenge.

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

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

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

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

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

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

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

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

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

response before moving on.

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

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

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

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

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

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

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

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

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

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

believe them.”

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

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

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

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

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

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

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

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

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

evidence would be reversible error. Id.

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

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

race or ethnicity, or any reasons historically associated with improper

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

12 expressed concerning opinions on cases without DNA evidence and about

consideration of external signals from spectators in assessing witness credibility.

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

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

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

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

Because the trial court properly denied the GR 37 objection regarding

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

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

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

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

5 These reasons include:

(i) having prior contact with law enforcement officers;

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

engage in racial profiling;

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

convicted of a crime;

(iv) living in a high-crime neighborhood;

(v) having a child outside of marriage;

(vi) receiving state benefits; and

(vii) not being a native English speaker.

GR 37(h)(i)-(vii).

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2. Juror 63

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

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

Usually people are biased in a way or have their own

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

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

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

something like that, there can be a misunderstanding.

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

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

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

why. There’s always a reason for it.

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

the need for consistency:

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

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

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

saying, because -- see if their --

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

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

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

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

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

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

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

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

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

comment about credibility:

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

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

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

deeply feel their story testament, both sides, is very consistent.

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

or something changed their mind.

That concerned me in a case involving such a protracted

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

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

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

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

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

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

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

evaluation.

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

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

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

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

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

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

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

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

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

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

the substantive concern about her method of assessing credibility. This

peremptory was not because juror 63 provided “unintelligent or confused

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

important or the witness might have made up the story.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

this basis fails.

B. Right to Open and Public Trial

Amador also claims he received ineffective assistance because appellate

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

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

cause during a “closed proceeding.”

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

they could not put their emotional reactions aside in a case involving allegations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

challenge had not yet been made. The court then told the parties to confirm

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

from recess, the court resumed the discussion:

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

STATE: Correct, your Honor.

THE COURT: Granted.

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

continued until a jury was empaneled.

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

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

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

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

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

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

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

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

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

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

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

176 Wn.2d at 167.

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

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

implicate the public trial right? (2) If so, was the proceeding closed? And (3) if so,

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No. 83262-0-I/20

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wn.2d at 92. 6

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

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

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

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

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

presentation of evidence).

20

No. 83262-0-I/21

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

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

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

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

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

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

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

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

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

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

right to public trial.

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

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

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

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

fails on this ground.

III. Ineffective Assistance of Trial Counsel

Amador asserts he received ineffective assistance because trial counsel

failed to impeach principal witnesses and failed to present additional witnesses

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

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

demonstrate deficient performance and resulting prejudice. McFarland, 127

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No. 83262-0-I/22

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

objective standard of reasonableness based on consideration of all

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

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

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

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

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

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

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

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

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

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

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

the absence of legitimate strategic or tactical reasons supporting the

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

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

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

A. Failure to Impeach Witnesses

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

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

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

disrespect is intended.

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No. 83262-0-I/23

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

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

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

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

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

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

defendant must show that the testimony that would have been elicited on cross-

examination could have overcome the evidence against the defendant.”

Johnston, 143 Wn.2d at 20.

1. Cross-Examination of Melanie

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

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

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

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

expressing her concerns to Amador or anyone else.

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

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

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

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

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

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

counsel used “some” of this information to “rebut the implication that Melanie

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No. 83262-0-I/24

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

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

Melanie with evidence that she had provided different answers during her

defense interview.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

for the failure to effectively cross-examine a witness, the defendant must show

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No. 83262-0-I/25

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

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

failing to further impeach Melanie. Because Amador cannot establish deficient

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

2. Cross-Examination of A.A.

Amador also faults trial counsel for missing the opportunity to impeach

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

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

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

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

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

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

deficiency through “lackluster and incomplete cross-examinations.”

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

assistance. See Pirtle, 136 Wn.2d at 489. Here, counsel’s failure to cross-

examine A.A. about the timing discrepancy amounts to reasonable trial strategy.

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

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

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

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

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

A.A.’s testimony about the meeting was damaging, including that upon

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No. 83262-0-I/26

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

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

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

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

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

Given this damaging testimony about the Starbucks meeting, trial

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

seen as a reasonable strategic decision to avoid revisiting highly damaging

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

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

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

claim of ineffective assistance of counsel.

B. Failure to Call Expert Witnesses

Amador claims trial counsel was ineffective for failing to call expert

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

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

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

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

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

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

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

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

Wn.2d at 880.

26

No. 83262-0-I/27

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

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

1. Forensic Sexual Assault Nurse Examiner

Trial counsel identified Jennifer Smith, a forensic sexual assault nurse

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

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

report opined:

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

extremely painful anal sex with ripping and bleeding from the anus

to have symptoms recognizable by others such as family

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

friends, and teachers. Physical symptoms would have included

difficulty sitting and walking, bloody undergarments, and sore or

edematous lips.

...

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

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

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

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

acts took place.

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

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

was relevant and helpful to the defense.

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

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

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

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

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

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

the records cannot prove abuse or rule out the possibility of abuse.

27

No. 83262-0-I/28

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

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

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

alleged sexual assault:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

compensation to finish his case. To obtain relief in a PRP, the petitioner “must present evidence

28

No. 83262-0-I/29

deficient performance, Amador cannot demonstrate ineffective assistance of

counsel.

2. Cell Phone Data Extraction Expert

Trial counsel contacted a cell phone data extraction expert regarding

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

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

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

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

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

The State questioned Amador to establish that despite his purported concerns

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

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

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

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

Melanie did not answer the calls.

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

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

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

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

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

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

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

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

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

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

Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2014).

29

No. 83262-0-I/30

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

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

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

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

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

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

assistance like a patrol response to go down there or if I needed to call my ex-

wife, and have her go down there.” Thus, testimony by a data extraction expert

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

testimony.

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

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

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

ineffective assistance of counsel claim fails on this ground.

C. Failure to Introduce Evidence

Amador contends trial counsel was ineffective for failing to introduce

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

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

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

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

(2017).

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No. 83262-0-I/31

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

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

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

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

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

existing documentation to clearly demonstrate the severity and ongoing nature of

[A.A.’s] mental health challenges.”

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

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

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

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

Amador, who cared for her until she felt better.

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

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

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

experiencing common feelings of anxiety and depression. Moreover, emphasis

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

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

long term sexual abuse.

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

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

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

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No. 83262-0-I/32

2. Evidence of Amador’s Crisis Intervention Training

Amador argues trial counsel should have introduced a Seattle Police

Department report with information about crisis intervention training Amador

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

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

training. He testified,

the best way to keep communication with somebody that is

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

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

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

beneficial to coming to a safe resolution with whatever the crisis

may entail.

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

relied on his training to maintain open communications and determine the

type of help needed.

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

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

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

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

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

3. Movie Evidence

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

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

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

considered “rife with suspicious similarities.” Amador alerted trial counsel but

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No. 83262-0-I/33

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

provided ineffective assistance. 11

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

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

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

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

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

decision considering the purely speculative nature of the proposed evidence.

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

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

D. Closing Argument

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

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

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

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

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

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

bleeding that she made to her boyfriend.

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

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

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

11 Appointed counsel does not raise this argument.

33

No. 83262-0-I/34

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

argument:

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

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

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

Weister when she underwent that examination that she had

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

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

and that difference is significant.

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

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

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

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

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

demonstrate deficient performance. Thus, Amador cannot establish ineffective

assistance of counsel based on closing argument.

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

we deny the PRP in its entirety.

WE CONCUR:

34