Personal Restraint Petition of Allen Robert Trevino
33998-0
| Wash. Ct. App. | Jun 20, 2017Background
- Allen Trevino was convicted of first-degree rape of a child and communicating with a minor; his direct appeal was previously denied.
- Trevino filed a timely personal restraint petition (PRP) raising multiple challenges to his conviction (jury instruction wording; Brady nondisclosure; comments about his refusal to travel for an interview; ineffective assistance of counsel on several fronts; and alleged prosecutorial misconduct).
- At trial the State admitted ER 404(b) evidence of two uncharged incidents; the court gave a limiting instruction labeling those prior acts as "uncharged offenses." Defense counsel approved the instruction.
- The State had an Accurint residential history report about the victim; Trevino contended the report was withheld and would have impeached the victim’s residence timeline.
- Detective Jansen and the prosecutor commented that Trevino refused to come to Richland for an interview; Trevino claimed this violated his Fifth Amendment rights.
- Trevino alleged multiple instances of ineffective assistance (not calling a memory expert, not calling certain witnesses, eliciting/allowing testimony, admitting guilt at closing, and failing to object to detective testimony) and multiple instances of prosecutorial misconduct (grooming argument, vouching, misstating facts, burden of proof). The court rejected relief on all grounds.
Issues
| Issue | Trevino's Argument | State/Respondent's Argument | Held |
|---|---|---|---|
| Jury limiting instruction called prior acts "uncharged offenses" | Wording mislabeled unproven conduct as an "offense," prejudicing fair trial | Term was qualified by "uncharged" and not labeled "sex offense," no risk jury thought prior convictions existed | No relief: phrasing not substantially misleading or prejudicial |
| Brady nondisclosure (Accurint report) | Report was impeachment material willfully withheld and prejudiced outcome | Existence of report was disclosed in detective's report; defense could obtain it with due diligence | No Brady violation: defense had means/notice to acquire report |
| Prosecutor/detective comments about Trevino refusing to travel for interview (self-incrimination) | Comments amounted to penalizing exercise of right against self-incrimination | Trevino had not invoked right; comments relate to pre-arrest conduct and avoidance | Claim foreclosed by Salinas; no Fifth Amendment violation shown |
| Ineffective assistance (expert, witnesses, elicited testimony, alleged admission, failure to object to detective) | Counsel failed in multiple respects causing prejudice | Strategic choices (theory of fabrication/retaliation) justified decisions; proffered evidence likely cumulative or harmful; no showing of prejudice | No relief: counsel's choices were strategic; no prejudice shown |
| Prosecutorial misconduct (grooming, memory anchoring, vouching, misstating evidence, burden) | Prosecutor argued facts/expertise outside record, vouched, misstated burden and facts | Some argument improper (grooming), but most remarks within permissible argument or supported by evidence; any errors not substantially prejudicial | Mixed: grooming reference improper but harmless; other arguments not reversible error |
Key Cases Cited
- In re Pers. Restraint of Finstad, 177 Wn.2d 501 (2013) (standards for collateral relief and prejudice)
- In re Pers. Restraint of Yates, 177 Wn.2d 1 (2013) (burden to prove prejudice by preponderance on PRP)
- In re Pers. Restraint of Benn, 134 Wn.2d 868 (1998) (Brady and due diligence in obtaining evidence)
- Salinas v. Texas, 133 S. Ct. 2174 (2013) (pre-arrest silence and Fifth Amendment limits)
- State v. Ky/lo, 166 Wn.2d 856 (2009) (strategic decisions by counsel and ineffective-assistance review)
- In re Pers. Restraint of Phelps, 197 Wn. App. 653 (2017) (expert testimony required before arguing grooming process)