In re Wiatt
| Decision Date | 30 June 2009 |
| Docket Number | No. 35690-2-II.,35690-2-II. |
| Citation | 151 Wn. App. 22,211 P.3d 1030 |
| Parties | In re Personal Restraint of Jerry D. WIATT Jr., Petitioner. |
| Court | Washington Court of Appeals |
David B. Zuckerman, Attorney at Law, Seattle, WA, for Petitioner.
James C. Powers, Thurston County Prosecuting Attorney Office, Olympia, WA, for Respondent.
¶ 1 A jury found Jerry D. Wiatt Jr. guilty of furnishing liquor to a minor (six counts), third degree rape (two counts), attempted third degree rape (one count), sexual exploitation of a minor (two counts), voyeurism (two counts), and second degree rape (three counts). In addition, Wiatt pleaded guilty to voyeurism (one count) and communicating with a minor for immoral purposes (one count). On direct appeal, we reversed five additional convictions and remanded for retrial because those convictions were based on evidence procured in an unlawful search. Those counts are not subject to review under this petition.
¶ 2 In this personal restraint petition (PRP), Wiatt argues that (1) insufficient evidence supported his conviction on count XII, second degree rape of K.N.H.; (2) the trial court violated his right to a public trial; (3) the trial court violated his right to presence during a critical stage in the proceedings; (4) the trial court improperly excluded evidence under the rape shield law; (5) jurors relied on extrinsic evidence and the prosecutor invited this juror misconduct; (6) he cannot receive a fair trial due to outrageous government conduct; (7) the trial judge was biased; (8) he received ineffective assistance of counsel; and (9) newly discovered evidence warrants a reference hearing. Wiatt also submitted a supplemental brief raising a public trial issue that he did not raise in his original petition. And on March 17, 2009, he moved to file a declaration by Alisha Cochran.
¶ 3 We deny the petition and deny Wiatt's motion to file the declaration.
¶ 4 In 1999, Wiatt bought a house in Olympia. He and his roommates had frequent parties and provided alcohol to underage guests. In 2001, a 17-year-old guest reported to police that Wiatt, then about 28 years old, had raped her when she was extremely intoxicated. After the news media reported the allegation, several other women reported that Wiatt had also raped them.
¶ 5 The State ultimately charged Wiatt with five counts of second degree rape, two counts of third degree rape, four counts of sexual exploitation of a minor, four counts of voyeurism, one count of communication with a minor for immoral purposes, one count of unlawful imprisonment with sexual motivation, and eight counts of furnishing liquor to a minor. These charges involved 10 different women. The court severed 18 counts from the others for trial. As relevant here, these 18 counts involved seven women: A.C., R.R., H.A.K., K.N.H., Z.H., E.G., and J.M.B. Wiatt pleaded guilty to one count of voyeurism and one count of communication with a minor for immoral purposes. The remaining charges were dismissed.
¶ 6 The State also charged Johan Lo, Wiatt's cousin, with two counts of sexual exploitation of a minor and two counts of voyeurism. Lo pleaded guilty to one count of attempted voyeurism in exchange for his testimony against Wiatt.
¶ 7 The trial court held a pretrial hearing regarding a communication from Lo to an attorney. Specifically, the hearing concerned Lo's e-mail communication to the attorney who later became Wiatt's trial counsel and addressed whether that communication (1) created a conflict of interest for Wiatt's attorney and (2) was inadmissible under the attorney-client privilege. The trial court ordered that the courtroom be closed during the hearing. Wiatt's counsel agreed with the hearing closure but objected to Wiatt's exclusion from the hearing. Despite the objection, with which the prosecution joined, the trial court ordered Wiatt and two prosecutors to leave the courtroom for the conflict hearing.2 Following the closed hearing, the trial court held that Lo did not have an attorney-client relationship with Wiatt's counsel and that Wiatt's counsel did not have a conflict of interest in representing Wiatt. It also ruled that Lo's e-mail communication was inadmissible under ER 403 because it was more prejudicial than probative.
¶ 8 The jury convicted Wiatt of second degree rape of A.C. (count II); two counts of sexual exploitation of a minor (counts III and IV); two counts of voyeurism regarding A.C. (counts V and VI); furnishing liquor to a minor, A.C. (count VII); third degree rape of J.M.B. (count VIII); furnishing liquor to a minor, J.M.B. (count IX); attempted third degree rape of H.A.K. (count X); second degree rape of K.N.H. (count XII); furnishing liquor to a minor, K.N.H. (count XIII); second degree rape of Z.H. (count XIV); furnishing liquor to a minor, Z.H. (count XV); third degree rape of R.R. (count XVI); furnishing liquor to a minor, R.R. (count XVII); and furnishing liquor to a minor, E.G. (count XVIII). Wiatt was sentenced on these counts as well as the counts to which he pleaded guilty, voyeurism regarding M.E.B. (count XXII) and communication with a minor, S.N.W., for immoral purposes (count XXIV).
¶ 9 On direct appeal to this court, we reversed five counts after holding that the trial court erred when it denied Wiatt's motion to suppress video tape evidence that related to charges involving A.C. State v. Wiatt, noted at 127 Wn.App. 1008, review denied, 155 Wash.2d 1027, 126 P.3d 820 (2005). We remanded for retrial on those counts and they are not at issue in the present petition. In addition, as relevant here, we held that the evidence was sufficient to support Wiatt's conviction on count XII, second degree rape of K.N.H. Wiatt then filed a timely PRP and, two years later, a supplemental brief that raises an additional issue.3
¶ 10 On November 13, 2008, Wiatt submitted a supplemental petition that raises a new issue regarding an alleged violation to the right to public trial during voir dire. Wiatt asked this court's permission to file the brief, which we granted. Shortly after he filed the supplemental brief, however, our Supreme Court issued In re Personal Restraint of Bonds, 165 Wash.2d 135, 196 P.3d 672 (2008), concerning the timeliness of amended or supplemental briefs for PRPs. Following In re Bonds, as we must, we hold that Wiatt's supplemental brief is time barred.
¶ 11 RCW 10.73.090(1) provides:
No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.
A PRP is a collateral attack on a judgment. RCW 10.73.090(2). In In re Bonds, our Supreme Court acknowledged that RAP 16.10(c) allows us to call for additional briefing at any stage when we consider a PRP, but it nevertheless held that the RCW 10.73.090(1) time bar is a statute of limitations that applies even if we request or authorize additional briefing. 165 Wash.2d at 140, 196 P.3d 672. Thus, even if the original petition was timely, a petitioner must demonstrate that his supplemental brief is not time barred if (1) he filed it after the time bar elapsed and (2) the supplemental brief adds a new claim that was not included in the original petition. In re Bonds, 165 Wash.2d 135, 196 P.3d 672.
¶ 12 Wiatt's judgment and sentence became final when this court issued a mandate on December 14, 2005. See RCW 10.73.090(3)(b). Accordingly, when Wiatt filed the present supplemental brief on November 13, 2008, more than one year had elapsed and we cannot review a petitioner's new claim unless he shows that either (1) the time bar does not apply because his judgment and sentence is facially invalid or it was not rendered by a court of competent jurisdiction or (2) one or more of the six exceptions to the time bar enumerated in RCW 10.73.100 applies.
¶ 13 Wiatt fails to argue that his supplemental brief is not time barred and we see no reason why it would not be. The only arguable exemption to the time bar is equitable tolling, a doctrine under which Wiatt presents facts but not argument.4 In In re Bonds, our Supreme Court held that the time bar may be equitably tolled in the rare situation in which an amended PRP is untimely due to another's malfeasance, including bad faith, deception, or false assurances. 165 Wash.2d at 141-42, 196 P.3d 672. Wiatt asserts that he learned after oral argument that the voir dire transcript that he ordered was purportedly complete, but was actually missing 200 pages because the transcriptionist mistakenly failed to transcribe closed proceedings that she recorded on a different stenographic machine than the one she used for the open proceedings.
¶ 14 Wiatt's factual allegations do not support equitable tolling. They allege a mistake, not malfeasance. See In re Bonds, 165 Wash.2d at 141, 196 P.3d 672. And Wiatt fails to argue that he could not identify this issue without the missing transcript, such as by interviewing trial counsel or surmising from the existing transcripts that there was a closed hearing. Wiatt has not demonstrated equitable tolling or any other time bar exception. Accordingly, we cannot consider his supplemental brief on the merits. In re Bonds, 165 Wash.2d at 143-44, 196 P.3d 672. We now review the issues that Wiatt raised in his original, timely petition.
¶ 15 As a threshold matter, we note that a personal restraint petitioner may not renew an issue that he raised and the court rejected on direct appeal unless the interests of justice require relitigation of that issue. In re Pers. Restraint of Taylor, 105 Wash.2d 683, 688, 717 P.2d 755 (1986). The petitioner may raise new issues, however, including both errors of constitutional magnitude that cause actual prejudice and nonconstitutional errors that constitute a fundamental defect and...
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State v. Curry, No. 27455-1-III (Wash. App. 10/15/2009)
......Mr. Curry, then, did not and does not have a right to have counsel help him prepare his personal restraint petition. Also, we will not address issues Mr. Curry raises for the first time in his PRP reply. In re Pers. Restraint of Wiatt, 151 Wn. App. 22, 41, 211 P.3d 1030 (2009). And we do not discuss contentions Mr. Curry already raised in his statement of additional. Page 13. grounds. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999). This court will grant relief here if Mr. Curry shows ......
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State v. Curry, 27455-1-III
...petition. Also, we will not address issues Mr. Curry raises for the first time in his PRP reply. In re Pers. Restraint of Wiatt, 151 Wn.App. 22, 41, 211 P.3d 1030 (2009). And we do not discuss contentions Mr. Curry already raised in his statement of additional grounds. In re Pers. Restraint......