Personal Restraint Petition of Ronald Ray Barton, Jr.

• Court: Court of Appeals of Washington
• Decided: October 29, 2024
• Docket: 58245-7
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

October 29, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II No. 58245-7-II In the Matter of the Personal Restraint of

RONALD R. BARTON,

Petitioner. UNPUBLISHED OPINION

GLASGOW, J.—In this timely personal restraint petition (PRP), Ronald Barton seeks relief

following his 2021 convictions for three counts of second degree rape of a child. Barton repeatedly

raped KMS, his 13-year-old step-granddaughter, over several weeks while KMS stayed at Barton’s

home in Pacific County. KMS was initially hesitant to report Barton because she believed she was

in love with him and she wanted to continue the relationship in secret, but she revealed the rapes

after her stepmother saw exchanges of sexual messages and photos between KMS and Barton on

KMS’s phone. A deputy sheriff also saw the sexual messages and photos.

KMS also reported that Barton consistently gave her methamphetamine, marijuana, and

alcohol during the time she stayed with him as a precursor to sexual intercourse. However, Barton

has attached new evidence in this PRP regarding a test of KMS’s hair that, if true, would show that

KMS did not consume methamphetamine during the entire period of the alleged abuse.

Barton argues in this timely PRP that (1) his trial counsel was ineffective in failing to

present the relevant new evidence regarding the test of KMS’s hair for methamphetamine; (2) his No. 58245-7-II

appellate counsel was ineffective in failing to challenge an indirect comment on his silence; (3)

the State failed to disclose that a law enforcement witness was subject to an internal affairs

investigation and was on paid administrative leave at the time of his testimony; (4) the

noncorroboration provision of Washington’s “Rape Shield Statute” is unconstitutional; and (5)

several additional arguments in his pro se initiation petition. Barton also argues, and the State

concedes, that Barton was improperly restrained at his sentencing proceeding without an

individualized inquiry into the need for restraints.

With respect to his ineffective assistance of trial counsel claim, Barton has made a

sufficient showing that he received deficient representation because his counsel failed to perform

an adequate investigation to obtain more definitive evidence about what time period the test of

KMS’s hair for methamphetamine would have covered. However, Barton cannot show he was

prejudiced by the deficiency because there is not a reasonable probability that the outcome of the

trial would have been different if the jury heard that KMS, a child, had not consumed

methamphetamine, despite her testimony that she did. KMS’s stepmother and a sheriff’s deputy

described to the jury the exchanges of sexual messages and photographs that they saw between

Barton and KMS on KMS’s phone. And KMS’s testimony about the charged incidents was

extremely detailed.

With regard to Barton’s remaining arguments, we conclude that Barton did not receive

ineffective assistance of appellate counsel, he was not prejudiced by the State’s failure to disclose

impeachment evidence, and he has failed to show any connection between the challenged

provision of the Rape Shield Statute and his current restraint. However, we accept the State’s

concession that resentencing is required.

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Therefore, we grant the petition in part, deny in part, and remand only for resentencing.

FACTS

I. BACKGROUND

Ronald Barton is KMS’s step-grandfather. Barton lived in Pacific County with his wife,

Sandie, and his mother, Judy. KMS lived in Oregon with her stepmother, CS, who is Barton’s

biological daughter and Sandie’s stepdaughter. CS and Barton “always had a very rocky

relationship,” including periods of no contact, but they reconciled around 2018. 1 Verbatim Rep.

of Proc. (VRP) at 455. CS introduced KMS to Barton when KMS was 10.

KMS stayed with Barton, Sandie, and Judy for several weeks during two consecutive

summers, without CS. First, KMS visited during the summer of 2020, when she was 12. Although

Barton “wasn’t there a lot,” at some point that summer Barton began to offer KMS marijuana and

alcohol. 1 VRP at 217. KMS enjoyed the visit and asked to return the following summer.

KMS returned in mid-June 2021 when she was 13. KMS was originally scheduled to stay

with Barton until July, but stayed until mid-August after asking to extend her trip. CS visited KMS

in Pacific County three times and did not notice any changes in KMS’s personality or behavior

throughout the summer. Barton drove KMS home to Oregon in mid-August. CS noticed that after

KMS returned, she was more reserved and “in her own little world.” 1 VRP at 455.

CS and KMS then returned to the Pacific County property for a Labor Day barbeque and

overnight camping trip with at least 20 attendees, including CS’s sister-in-law, Brittany. Shortly

after arriving, CS had an argument that turned into a “physical altercation” with Sandie, though

their relationship was “fine” before then. 1 VRP at 459; 2 VRP at 522. The argument was unrelated

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to Barton’s conduct, but Barton became involved when he intervened to pull Sandie off of CS.

After the altercation, the party continued.

The witnesses dispute what happened next. According to Brittany, Sandie told her she

believed KMS and Barton were in a sexual relationship. Brittany then relayed the accusation to

CS, who at first thought Brittany was lying “to create more conflict.” 2 VRP at 473. Sandie denied

making this accusation; she said she told Brittany she was not concerned about their relationship

when asked.

CS and KMS left the party, and KMS repeatedly denied any inappropriate contact with

Barton. CS reported the allegations to law enforcement but did not pursue the issue further.

Then, about a week later, CS found a locked phone in KMS’s purse that she had never seen

before. CS confronted KMS, who reluctantly gave her the passcode. On the phone, CS saw nude

photos of KMS and sexually explicit Instagram messages between KMS and Barton. CS

recognized the user who sent the messages as Barton from her own prior Instagram messages with

him. There were no photos of Barton on KMS’s phone.

For a few moments, even after CS saw the messages and recognized Barton’s profile, KMS

still attempted to deny sexual contact with Barton because she “didn’t want it to stop” and wanted

to prevent their “relationship” from being “destroyed.” 1 VRP at 274. She then admitted to CS that

Barton had intercourse with her over the summer. CS immediately drove KMS from Oregon to a

crisis support center in Pacific County to report Barton to the local authorities. The crisis center

staff contacted police.

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II. POLICE INVESTIGATION

Deputy Acdal responded to the crisis support center where KMS told him that Barton had

sexual intercourse with her over 20 times between early July and early August 2021 and that Barton

gave her alcohol, marijuana, and methamphetamine before intercourse. Deputy Acdal also

examined KMS’s phone after CS provided the passcode.

In KMS’s phone, Deputy Acdal saw nude photos and Instagram messages between KMS

and a user that Deputy Acdal believed to be Barton based on the profile picture. Deputy Acdal did

not obtain copies of the messages, but he reviewed the messages and transcribed quotes from the

messages in his contemporaneous probable cause statement. This included messages where KMS

referred to Barton as “‘Baby,’” asked, “‘What the f*ck is a butt plunge for?’” and said, “‘I don’t

regret any of it.’” Clerk’s Papers at 3. Deputy Acdal also quoted messages where Barton asked,

“‘You getting naked?’” and replied, “‘I don’t either regret.’” Id. Barton also mentioned pictures

that KMS sent to him, and KMS responded that she had more pictures for him.

Later that day, Deputy Acdal arrested Barton for rape of a child and seized Barton’s phone

as evidence. Deputy Acdal obtained a search warrant for an extraction of both phones to be

completed by another officer, Deputy Eastham. As we stated in our opinion resolving Barton’s

direct appeal, Deputy Eastham then forensically examined KMS’s phone

using a program known as Cellebrite, which extracts data from phones and other electronic devices. Although the Cellebrite forensic examination revealed several naked photographs of KMS, it did not contain any of the Instagram communications between KMS and Barton because Instagram was a third-party platform that could not be accessed using Cellebrite.

State v. Barton, No. 56761-0-II, slip op. at 2 (Wash. Ct. App. June 23, 2023) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2056761-0-II%20Unpublished%20Opinion.pdf,

5 No. 58245-7-II

review denied, 2 Wn.3d 1011 (2024). The extraction produced photos of other young people but

did not produce images of Barton.

Deputy Eastham attempted an extraction of Barton’s phone, but without Barton’s passcode,

the extraction failed. A search warrant was issued and sent to Instagram some time before trial

seeking access to the accounts belonging to KMS and Barton, but at the time of trial, the results

were still outstanding.

The police ordered drug testing of hair follicle and urine on samples from KMS and the

results were positive for marijuana and negative for amphetamines. The specimens were collected

on September 15, 2021, soon after KMS’s report to law enforcement. For the first time in this PRP,

Barton has filed a copy of KMS’s test results from BioMed Testing Services and an unsworn letter

signed by BioMed’s records custodian. The results show that KMS’s hair follicle test was also

negative for phencyclidine, cocaine, and opiates. Her urine test was negative for cocaine,

morphine/hydrocodone, phencyclidine, MDMA/ecstasy, 6-acetylmorphine, and

oxycodone/oxymorphone. The report shows that the hair follicle test was performed on a one-and-

a-half inch hair sample that according to the records custodian, would show controlled substances

used for approximately the 90 days preceding the sample date.

III. CHARGES AND DISCOVERY

In mid-September 2021, the State charged Barton with three counts: second degree rape of

a child, first degree incest, and delivery of narcotics (methamphetamine) to a minor. Barton

retained counsel and in October, the State produced KMS’s drug test results and the Cellebrite

extraction report prepared by Deputy Eastham.

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According to new evidence filed with Barton’s PRP, Deputy Eastham was placed on

unpaid administrative leave in October 2021 due to a misconduct investigation. The investigation

concerned allegations that Deputy Eastham conducted an illegal search by falsely claiming he

found methamphetamine in plain view during a protective sweep. The investigation also concerned

Deputy Eastham’s alleged pattern of mishandling, losing, or failing to return controlled substances

used as K-9 officer training aids. The investigation revealed surveillance video allegedly showing

that Deputy Eastham entered a locked police office after hours and used a flashlight to examine

Drug Task Force files, though he was not a member of the task force.

The State did not produce information related to the misconduct investigation but

according to trial counsel, the State produced other impeachment evidence against Deputy

Eastham. Specifically, the State produced a disciplinary letter signed by the Pacific County Sheriff

and Deputy Eastham that summarized several instances of dishonesty. For example, Deputy

Eastham allegedly lied to another officer about a controlled buy, giving specific amounts and

details although the buy never actually took place.

Immediately before trial, the State filed an amended information against Barton adding two

additional counts of second degree rape of a child but dropping the incest and methamphetamine

delivery charges. When trial began, Barton faced three counts of child rape for distinct occurrences

over the summer of 2021.

IV. JURY TRIAL

A. Opening Statements

The State’s opening statement summarized KMS’s anticipated testimony that Barton

provided her with methamphetamine, alcohol, and marijuana over the summer when she was 13,

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in the context of a sexual relationship. As we stated in our opinion resolving Barton’s direct appeal,

during opening

[t]he prosecutor told the jury that KMS’s testimony alone was sufficient to convict Barton and that no corroboration of KMS’s testimony was required in order to find Barton guilty. The prosecutor also commented that because of issues with the investigation in this case, the State might not be able to provide corroboration for all of the testimony regarding what [CS] found on KMS’s cell phone.

Barton, No. 56761-0-II, slip op. at 3. Finally, the State emphasized that the case was likely to come

down to whether the jury believed KMS’s testimony.

Barton, on the other hand, argued that KMS’s allegations were not credible and criticized

the police investigation. Barton argued that although the police seized his phone, “[n]o one

bothered to look” at its contents to preserve the alleged Instagram messages. 1 VRP at 182.

Barton’s attorney went on to argue, “My client’s phone was just taken. It was never forensically

examined.” Id. As we stated in our opinion resolving Barton’s direct appeal:

Barton also emphasized other deficiencies in the investigation. For instance, Barton asserted that there was no evidence KMS had undergone a sexual assault examination, that the investigating officers never sought any DNA evidence, that the investigators did not examine the places where KMS alleged the sexual activity occurred, and that the police never attempted to examine KMS’s or Barton’s cell phone records to determine whether they could provide any corroborating evidence regarding where the assaults were alleged to have occurred.

Barton, No. 56761-0-II, slip op. at 4.

B. CrR 8.3(b) Motion to Dismiss

After the jury was released on the first day of trial, the prosecutor met with KMS, and KMS

helped the prosecutor obtain a copy of the Instagram messages. Barton then moved to dismiss the

case under CrR 8.3(b) due to governmental misconduct, namely withholding evidence that was on

8 No. 58245-7-II

KMS’s phone and in the State’s control. Again, as we explained in our opinion on Barton’s direct

appeal:

The court concluded that this was an instance of discovery mismanagement that amounted to governmental misconduct because there was no reason the State could not have located these messages earlier. The court also concluded that the disclosure of the new evidence after opening statements had been made could be prejudicial because the focus of Barton’s opening statement was the lack of corroborating evidence in the case.

Barton, No. 56761-0-II, slip op. at 5. The trial court viewed the State’s failure to produce the

messages as a “discovery violation” but concluded that dismissal was not warranted. 1 VRP at

209. Instead, the court excluded the documentary evidence of the messages but allowed witnesses

to testify about their contents.

C. Trial Testimony

1. Evidence regarding drug use and sexual contact between KMS and Barton

KMS testified that inappropriate behavior began shortly after she arrived to stay with

Barton when he told her she was “an attractive little girl” and “a cute little thing,” and stated that

he had to avert his eyes when she bent over. 1 VRP at 236. KMS explained that Barton began a

sexual relationship with her in early July and that as the summer progressed, she began to feel

romantically attached to Barton and believed they were “in love.” 1 VRP at 265. She described

plans to run away together with Barton after she turned 18, when Barton would be 60, including

that Barton promised to “help [her] become a stripper.” 1 VRP at 268. She also testified that she

used 1860 as the passcode on her secret cell phone, signifying “when we could actually be

together.” Id.

KMS also described the details of the sexual contact that occurred in tandem with daily use

of alcohol, marijuana, and methamphetamine. She also believed she was given “some kind of sex

9 No. 58245-7-II

drug” in addition to the methamphetamine because she “thought about sex 24/7” during the time

she stayed with Barton. 1 VRP at 257. KMS was familiar with marijuana before visiting Barton

and testified that she brought marijuana to the property that summer. However, KMS had never

used methamphetamine before that summer.

Although KMS did not have prior experience with methamphetamine, she explained in

detail how sexual contact occurred for the first time after she consumed a “cloudy white crystal”

with Barton in early July 2021. 1 VRP at 225. She explained that the substance made her “horny”

and that after using it, she “wanted to have sex.” 1 VRP at 257. She also said it made her feel

“[n]umb, happy, awake, [and] energized.” 1 VRP at 226. It also made her feel “loose and free”

and more willing to engage in risky behavior. 1 VRP at 234. She explained in the following

exchange that she relied on Barton’s word that the substance was methamphetamine:

Q. Okay. You also mentioned methamphetamine. How did you know that it was methamphetamine? A. It was, like, a cloudy white crystal and I’ve seen pictures . . . of that from education from school and stuff. Q. Okay. How did you know that what Mr. Barton was giving you was methamphetamine? A. He told me.

1 VRP at 225. KMS testified that Barton crushed the methamphetamine and helped KMS to

consume it by running a tube down a line of the substance as she sniffed. KMS then testified about

the events leading up to their first sexual contact:

So, after we had smoked [marijuana], he told me that he needed to go get something from the trailer down the hill and that I should go with him. So, I said okay, I would follow him to the trailer. And I had walked in first, and when I had walked in he grabbed my hand and made me turn around, and then I kissed him and we started making out. ....

10 No. 58245-7-II

Next, he had grabbed my hand and told me that we should go down to the swimming hole. So, we had walked over to the swimming hole. Got down to where the water was, grabbed me, started kissing me, dragged me down onto the ground. We were still kissing. I got on top of him, and then he had turned me over, pulled my pants and my underwear down, and started oral sex on me.

1 VRP at 235-37. KMS explained that then she “gave him oral sex” for the first time, causing her

to throw up. 1 VRP at 239.

KMS testified that a couple of days later, Barton penetrated her with his penis for the first

time after giving her marijuana, alcohol, and methamphetamine. KMS explained that this time,

Barton was driving her to the store when he asked her to let him know when she “wanted to do

something special with him.” 1 VRP at 245. KMS responded that she was “‘down to do stuff

whenever,’” including “‘now’” and Barton pulled over. 1 VRP at 246. She went on to testify as

follows:

Then we start kissing. We start [indiscernible] our pants. He tells me to get in the back of the car, so I go in the back. He hops in the back. And then we start kissing again. I am on top of him now, and we have -- my pants are almost off now, and then he tells me to [indiscernible] on top of his face, so I pull my pants down and get on top of his face. .... And then that goes on for probably 10 minutes, 15, and then he tells me to get off, and I get off. And then he tells me to get around, so I turned around and I went lower, and then he sticks his penis inside of me. And I said -- actually, I [indiscernible] a little bit, and then he told me that he had [indiscernible] access to [indiscernible] and then we did that for probably 20 minutes, and then we heard -- he thought he heard someone coming down the road, so he put his pants up, got back to the front of the car. I got dressed, because I was naked [indiscernible] and stuff, and I got to the front of the car and we left.

1 VRP at 247-48.

KMS testified that for the rest of the summer, Barton penetrated her orally or vaginally

“every day.” 1 VRP at 252. She described intercourse with Barton as a “teaching experience” and

testified that he told her she was “special,” “different,” and “more mature than [her] age.” 1 VRP

11 No. 58245-7-II

at 240-41. KMS went on to describe in detail that in mid-July, she was penetrated with a vibrator

that she described as “a little over half a foot” long. 1 VRP at 276. She recalled the incident because

it was the first time she “squirted” a liquid and explained, “It surprised Ron a lot that I was able to

do that, and . . . from that point on, he had been trying to get me to squirt again.” 1 VRP at 262-

63.

To counter KMS’s allegations, Barton presented the testimony of his wife, Sandie, and

mother, Judy, who denied suspecting an inappropriate relationship between Barton and KMS.

They also testified they did not suspect KMS or Barton was using methamphetamine that summer.

Judy was familiar with methamphetamine’s effects from observing another one of her sons who

was a long-term methamphetamine user. Judy described his behavior as “jumpy,” “[t]alking a mile

a minute,” and that he “couldn’t sit still.” 2 VRP at 565. When asked if she saw similar behavior

in KMS, she replied, “God, no.” 2 VRP at 566. Judy also denied seeing similar behavior in Barton,

but the State later elicited the following testimony:

Q. You know [Barton] to also have used methamphetamine; don’t you? A. I can’t say for sure. I have a guess. Q. Okay. And, I’m sorry you lost your one son to drugs. A. He knows how I feel about it. Q. “He” as in Ron[ald Barton]; correct? A. Yes. Q. And that’s based on what you already had to deal with, with your one son? A. Yes.

2 VRP at 568.

The State attacked both Sandie’s and Judy’s credibility including their motivations for

protecting Barton. The State also presented conflicting testimony from Brittany, who testified that

Sandie had told her she believed Barton and KMS were having a sexual relationship.

12 No. 58245-7-II

2. Evidence regarding drug testing

The parties did not present expert testimony or documentary evidence of KMS’s hair

follicle test, but during Barton’s initial cross-examination, Deputy Acdal testified that the police

performed a hair follicle test that returned a positive result for marijuana and a negative result for

methamphetamine. Barton’s attorney did not immediately question Deputy Acdal regarding the

date or time period that the test result covered.

On redirect examination, the State asked Deputy Acdal when KMS’s hair sample was taken

and then asked, “How long does methamphetamine stay inside one’s system that they’d be able to

find it in a hair follicle?” 1 VRP at 385. Deputy Acdal responded, “I’m not sure. No more than a

few days, is what I’m told.” Id. The State then asked, “And that’s your understanding, so it makes

sense that the hair follicle sample didn’t come back with methamphetamine in it?” and Deputy

Acdal responded, “Yeah.” Id. Barton’s attorney did not object or recross-examine Deputy Acdal

regarding these answers and testimony soon ended for the day.

The next day, Barton recalled Deputy Acdal and confronted him with the document

containing the test results. Barton’s attorney elicited the following testimony:

Q. Okay. And you testified yesterday regarding the results of that test. And what were the results of that test? A. So, the only thing that came back positive in her test was marijuana. Q. All right. So, negative for methamphetamines? A. Correct. Q. Okay. And I believe [the prosecutor] asked you yesterday . . . how long, based on your training and experience -- if you know, and if you don’t, that’s okay -- how long amphetamines might show up in someone’s hair follicles. A. I can’t testify on exactly how long that is . . . but . . . I do know that in urine sample, methamphetamines are only in the sample for a few days. Q. Okay. But the hair follicles, theoretically, could be longer? A. Yes. Q. Okay. And what was the date on this test?

13 No. 58245-7-II

A. These were done on September 15[th], 2021. Q. And so, that would have been four days after you were first made aware of [KMS’s] allegations? A. Yes.

1 VRP at 400-01. After that exchange, defense counsel did not ask further questions and the State

did not cross-examine Deputy Acdal regarding the hair test. Neither party attempted to lay a

foundation or sought to admit the document into evidence.

3. Evidence regarding the messages and photos seen on KMS’s cell phone

KMS testified that she used a secret phone to keep in touch with Barton after she left Pacific

County in August because she missed him. She described sending naked photos to Barton,

messaging, and talking with Barton about “plans to run away” together when KMS turned 18. 1

VRP at 266. KMS also explained that Barton sent her Instagram messages such as, “‘Can’t wait

to see you again to finish what we started’” and “‘Can we get naked?’” 1 VRP at 272.

CS and Deputy Acdal both explained to the jury that they had seen inappropriate Instagram

messages on KMS’s phone before it was seized as evidence. CS explained that she recognized the

Instagram profile as Barton from prior Instagram communications with him. CS saw “messages

along the lines of: I miss you, baby; I love you, baby; I don’t regret anything over this Summer;

only five years and we can be together.” 1 VRP at 478. Deputy Acdal refreshed his recollection

with his contemporaneous probable cause statement and told the jury he wrote quotations from the

messages in the statement verbatim. Deputy Acdal then explained, consistently with the facts

above:

There was a message saying, “Hey, baby.” There was another message of [KMS] asking Mr. Barton what butt plunge was. There were also messages between -- there were messages of [KMS] stating that she didn’t regret it, and then Mr. Barton saying, “I don’t regret anything either.”

14 No. 58245-7-II

1 VRP at 349. Deputy Acdal’s statement was not offered into evidence, but he explained that he

also saw more messages from Barton, including “‘lovely pictures,’ ‘you are beautiful,’ and Mr.

Barton was also asking [KMS] when she was 18.” 1 VRP at 350.

During KMS’s testimony, the State offered three self-taken naked photos of KMS that she

sent to Barton. CS and Deputy Acdal recognized these photos from KMS’s phone and Deputy

Eastham recognized them from the Cellebrite report. KMS explained that although CS had seen

the photos on her phone, it would not have been apparent that she sent the photos to Barton because

she had deleted them from the Instagram conversation:

Q: Okay. And she saw that those [naked photos] had been sent to Ronald Barton? A: She did not see that they were sent to -- because I had deleted those photos when I sent them to him, but she had seen the photos. Q: And you told [CS] that you sent them -- A: Yes. Q: -- to Mr. Barton? A: Yes. Q: But [CS] didn’t see that they had been sent to Mr. Barton? A: No.

1 VRP at 279. In contrast, CS testified that she saw “probably 60 nude photos sent between them.”

1 VRP at 478. When cross-examined, CS acknowledged that she caught KMS sending nude photos

to a prior boyfriend before KMS stayed with Barton. Deputy Eastham testified that the Cellebrite

report contained photos of other teens found on KMS’s phone.

4. Evidence regarding the investigation of Barton’s cell phone

Deputy Acdal testified about the limitations of his attempts to recover documentation of

the Instagram messages, including that he was unable to access Barton’s phone without Barton’s

passcode. The State elicited the following testimony:

A. Mr. Barton’s phone was seized, as well, at the time that he was arrested.

15 No. 58245-7-II

Q. Okay. And were you able to get into Mr. Barton’s phone? A. No. So, the warrant that was issued for [KMS]’s phone, Mr. Barton’s phone was also lumped in that search warrant; but, unfortunately, due to the Cellebrite program, unless you have their PIN number you can’t do an extraction. So, we had [KMS]’s PIN number that she provided, I believe. We were never able to get a PIN number for Mr. Barton and we have not yet done an extraction due to that. .... Q. Well, I just want to make sure it’s clear to the jury, because it’s hard for me to follow. A Cellebrite extraction was attempted, but without the PIN number it couldn’t succeed? A. (No audible response.)

1 VRP at 353-54. Barton did not object to the State’s questions and later asked Deputy Acdal

whether he was “able to search [Barton’s] phone” to verify his control of the Instagram account,

and Deputy Acdal replied, “I wasn’t able to get into it.” 1 VRP at 376-77. Barton also cross-

examined Deputy Acdal as follows:

Q. You had difficulty opening the cell phone device that you took from my client when he was arrested. .... A. Yes. Q. . . . But there are GrayKey devices that are maintained by law enforcement across the state that have the ability to open those devices in most cases; correct? A. Yes. Q. But that was not done with Mr. Barton’s phone? A. So, it was attempted, but I was informed that the GrayKey program is not compatible with the software of Mr. Barton’s phone, as well.

1 VRP at 378-79.

When Barton cross-examined Deputy Eastham about the extraction, he elicited testimony

that Deputy Eastham’s involvement was “limited to the forensic evaluation” of KMS’s phone. 1

VRP at 411. Barton did not confront Deputy Eastham with the instances of dishonesty and

disciplinary letter that the State provided to Barton prior to trial.

16 No. 58245-7-II

D. Closing Arguments

The jury instructions did not include any reference to whether the State needed to present

corroborating testimony for KMS’s allegations. Instead, the jury instructions explained that the

jurors were the sole judges of witness credibility.

Both parties, in closing arguments, tied KMS’s methamphetamine-related allegations to

their theories of the case. The State asked the jury to return a guilty verdict based on KMS’s

testimony that Barton coerced her into a sexual relationship by giving her methamphetamine and

other substances. The State argued:

A 13-year-old girl took the stand. She was groomed by her grandfather with methamphetamine, through alcohol, with marijuana, with intention. He started off talking to her about all of his sexual exploits, inappropriate behavior. She felt special. She became very fond of him. She was under the influence, most of the time.

2 VRP at 656. The State then asked rhetorically, “What 13-year-old would know how to describe

methamphetamine as such?” 2 VRP at 659. The State went on to argue that KMS had “[n]o motive

to lie,” and that the case against Barton “boils down to credibility. Credibility of if you believe a

13-year-old girl.” 2 VRP at 661-62.

Barton argued that KMS’s allegations were not credible because the hair follicle test, “the

only forensic evidence that we have in this case,” contradicted KMS’s testimony of daily

methamphetamine use. 2 VRP at 676. Barton also relied on Judy’s and Sandie’s statements that

they saw no signs of intoxication. Both parties presented competing credibility arguments as to

Judy and Sandie, including their loyalty to Barton and their likely motivation to protect him.

17 No. 58245-7-II

Both parties also argued about how much weight to give testimony about the inappropriate

Instagram messages allegedly sent between KMS and Barton. As we recited in our opinion on

Barton’s direct appeal, the State

described the messages between Barton and KMS. The prosecutor acknowledged that although the Cellebrite process did not extract any information about these messages from KMS’s phone, KMS, [CS], and Acdal all had testified about the content of the messages. The prosecutor acknowledged various deficits regarding the investigation in this case but argued that these deficits did not mean that KMS was not sexually assaulted by Barton.

Barton, No. 56761-0-II, slip op. at 6-7. The State also argued that KMS had no motivation to

fabricate the messages because at the time the abuse came to light, KMS was trying to hide the

abuse because “she didn’t want [it] to end.” 2 VRP at 658.

Barton, on the other hand, criticized the investigation and argued that the State failed to

prove that Barton sent KMS any messages. He argued, “If there were messages between [KMS]’s

phone and [Barton]’s phone, one of the easiest ways to determine whether or not those

communications actually occurred would be to look at my client’s phone.” 2 VRP at 682. He

acknowledged that law enforcement attempted to unlock his phone but argued that police should

have consulted other agencies to unlock it and, that doing so, “could have allowed not only law

enforcement, but Defense, and you, the jury, to see what was or was not on my client’s phone.” 2

VRP at 683. Barton went on to argue that the messages were “taken out of context” and review of

the actual messages would have shown some innocent explanation for the exchange. 2 VRP at 681.

Finally, Barton asserted that the State had not met its burden because KMS’s testimony

was insufficient to support a conviction, telling the jury:

[Y]ou cannot fill the holes in the State’s case, the voids in this criminal investigation, by simply focusing on the emotional testimony of a 13-year-old girl. There has to be more. Before the State, the Government, brings somebody up on

18 No. 58245-7-II

charges of raping a child, they need to complete their investigation. They need to be sure. They need to be thorough. They need to leave no stone unturned, because it is not an allegation to be made lightly. Even if you find my client not guilty, will his life ever be the same?

2 VRP at 686. Barton then repeated the sentiment, arguing, “It has to take more than this, ladies

and gentlemen. It’s essential.” Id. This argument drew no objection from the State.

E. Verdict and Sentencing

The jury found Barton guilty of all three counts of second degree rape of a child. The State

does not dispute that without a prior hearing regarding the necessity of restraints, Barton was

restrained at his sentencing hearing with handcuffs, leg-irons, and a belly chain. Barton received a

high standard range sentence of 194 months to lifetime confinement followed by lifetime

community custody.

V. BARTON’S CHALLENGES TO HIS CONVICTION

Barton appealed his conviction based on the State’s late production of the Instagram

messages and raised additional arguments in his statement of additional grounds (SAG) regarding

the hair follicle test, Deputy Eastham’s alleged misconduct, constitutional deprivations, and

ineffective appellate counsel.

While his direct appeal was pending, Barton filed this timely collateral attack, raising the

following arguments: that the State failed to conduct a full investigation before charging him; that

the erroneous probable cause determination and pretrial detention were based on hearsay evidence;

19 No. 58245-7-II

that the State failed to produce exculpatory evidence; and that various constitutional rights were

violated, including that Washington’s Rape Shield Statute is unconstitutional.1

We affirmed Barton’s conviction in an unpublished opinion filed June 2023 and did not

consider the arguments raised in Barton’s SAG, because the issues raised relied on evidence

outside of the record on appeal. Barton unsuccessfully petitioned for review and we issued our

mandate disposing of Barton’s direct appeal on January 12, 2024. Ord. Den. Rev., State v. Barton,

No. 102176-3, at 2 (Wash. Jan. 3, 2024).

Barton was appointed PRP counsel and filed his supplemental petition on January 16, 2024,

before the expiration of the one-year time bar. Ord. Appointing Couns., In re Pers. Restraint of

Barton, No. 58245-7-II, at 1-2 (July 10, 2023). In his supplemental petition filed by counsel,

Barton argues that he is unlawfully restrained because (1) he received ineffective assistance of his

trial court counsel, (2) he received ineffective assistance of his appellate counsel, (3) the State

withheld impeachment evidence, (4) Washington’s Rape Shield Statute is unconstitutional, and

(5) he was restrained at his sentencing hearing without an individualized inquiry.

With his supplemental brief, Barton filed new evidence to support his arguments, including

KMS’s drug testing results and an unsworn letter from the records custodian of the testing

company stating that the hair follicle test would have covered approximately 90 days before the

test, which would have encompassed the entire time KMS was living with Barton.

1 Barton’s amended initiation petition, filed a few days after his first petition, raised no new arguments and was filed before the one year deadline for collateral attack. Thus, though he did not request a formal amendment, we may consider his amended petition. RAP 16.8(e); In re Pers. Restraint of Rhem, 188 Wn.2d 321, 327, 394 P.3d 367 (2017).

20 No. 58245-7-II

Barton also filed a declaration from his PRP counsel declaring that after a public disclosure

request, she received an investigation report and termination memorandum regarding Deputy

Eastham’s alleged workplace misconduct. The documents themselves were also submitted,

showing that Deputy Eastham was on unpaid administrative leave at the time he testified, after

allegedly lying and engaging in misconduct to further a prosecution. Barton also submitted a

declaration from his trial attorney explaining that he received the disciplinary letter but no other

impeachment evidence regarding Deputy Eastham. Finally, Barton and his trial counsel both

declared that Barton was physically restrained at sentencing.

ANALYSIS

I. PRP PRINCIPLES

A PRP is an extraordinary remedy in that the petitioner seeks to disturb a final judgment.

In re Pers. Restraint of Kennedy, 200 Wn.2d 1, 12, 513 P.3d 769 (2022). A PRP must be filed

within one year of the date the petitioner’s judgment and sentence became final. RCW

10.73.090(1). Where the judgment was affirmed on direct appeal, a petitioner’s judgment becomes

final on the day the appellate court issues its mandate disposing of the appeal. RCW

10.73.090(3)(b).

Here, Barton filed his initial petition in May 2023, before his judgment became final in

January 2024. His appointed PRP counsel filed his supplemental brief raising new arguments on

January 16, 2024, also less than a year after his direct appeal became final. Thus, Barton’s petition

and new arguments made in his supplemental brief were timely under RCW 10.73.090(1).

A PRP petitioner bears the burden of showing unlawful restraint by a preponderance of the

evidence. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004). They must

21 No. 58245-7-II

show either a constitutional error that caused actual and substantial prejudice or a

nonconstitutional, fundamental defect that inherently resulted in a complete miscarriage of justice.

Id. To meet this burden, the petitioner must identify the “facts upon which the claim of unlawful

restraint . . . is based and the evidence available to support the factual allegations.” RAP 16.7(a)(2).

Where the petition rests on facts outside the existing record, the petitioner must identify

evidence supporting their allegations and may not rest on “mere speculation or conjecture.” In re

Pers. Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013). If their argument rests on the

knowledge of others, the petitioner must provide their affidavits or other “evidence to corroborate

what the petitioner believes they will reveal if subpoenaed.” Id. However, we must be careful to

note that “the purpose of a reference hearing is to resolve genuine factual disputes, not to determine

whether the petitioner actually has evidence to support [their] allegations.” In re Pers. Restraint of

Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).

II. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Barton argues that he was denied effective assistance at trial because his attorney failed to

introduce evidence that would have proved that KMS did not consume methamphetamine during

the entire summer she stayed with Barton. Although we agree that trial counsel was deficient in

this regard, Barton cannot show a reasonable probability that the outcome of the trial would have

been different if the jury heard that KMS, a child, did not consume methamphetamine despite her

testimony to the contrary. Thus, Barton was not prejudiced and is not entitled to relief.

A. Right to Counsel

Accused persons are constitutionally entitled to effective counsel at trial. U.S. CONST.

amend. VI and XIV; WASH. CONST. art. I, § 22; State v. Bertrand, 3 Wn.3d 116, 128, 546 P.3d

22 No. 58245-7-II

1020 (2024). We apply a two-pronged test to claims of ineffective assistance of counsel: the

defendant must show that (1) counsel performed deficiently and (2) counsel’s deficiency

prejudiced the defendant. Id. An ineffective assistance claim raised in a PRP is subject to the same

standard applied on direct appeal. In re Pers. Restraint of Lui, 188 Wn.2d 525, 538, 397 P.3d 90

(2017).

Deficient performance is performance that falls below an objective standard of

reasonableness considering all the circumstances. Bertrand, 3 Wn.3d at 128. To avoid the biases

of hindsight, we strongly presume that counsel performed reasonably. Id. at 130. The presumption

of reasonableness can be overcome by showing “an absence of any legitimate trial tactic”

explaining counsel’s performance. Lui, 188 Wn.2d at 539.

A criminal defense attorney must investigate “all reasonable lines of defense” and failure

to perform a reasonable investigation can constitute deficient performance. Davis, 152 Wn.2d at

721. A reasonable investigation is one that enables counsel to make informed decisions about how

to best represent the client. Id. The investigation must allow counsel to determine “‘what sort of

experts to consult.’” In re Pers. Restraint of Brett, 142 Wn.2d 868, 881, 16 P.3d 601 (2001)

(quoting Caro v. Calderon, 165 F.3d 1223, 1226 (9th Cir. 1999). If counsel fails to conduct a

complete investigation, subsequent decisions “are reasonable only if the decision to limit the

investigation was itself a product of reasonable professional judgment.” State v. K.A.B., 14 Wn.

App. 2d 677, 713, 475 P.3d 216 (2020).

Deficient performance causes prejudice when it is reasonably probable that absent

counsel’s errors, “‘the factfinder would have had a reasonable doubt respecting guilt.’” Bertrand,

3 Wn.3d at 129 (quoting Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 80 L. Ed.

23 No. 58245-7-II

2d 674 (1984)). This standard is lower than a preponderance of the evidence, but requires more

than “a ‘conceivable effect on the outcome.’” Id. (internal quotation marks omitted) (quoting State

v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017)). Rather, the probability must be “‘sufficient

to undermine [the court’s] confidence in the outcome.’” Id. (alteration in original) (quoting

Strickland, 466 U.S. at 694). A PRP petitioner who makes such a showing has necessarily satisfied

the actual and substantial prejudice standard for collateral relief. In re Pers. Restraint of Crace,

174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).

B. Deficient Performance

Barton argues that his attorney deficiently failed to obtain and present evidence that would

have conclusively proved KMS did not consume methamphetamine during the summer of 2021

when she was staying with Barton. We agree with Barton that his trial attorney performed

deficiently in this regard.

The hair follicle test was an important line of defense in this case because it showed that

KMS had not consumed methamphetamine during the time period the test covered. Barton’s

attorney should have performed a reasonable investigation as to what time period the test results

covered, after he received them in October 2021.

Barton attached to his supplemental petition a two-page report from BioMed Testing

Services indicating that it conducted drug testing on KMS’s hair and urine samples collected on

September 15, 2021. Barton also attached a letter from BioMed’s records custodian, listing her

credentials and stating that the hair follicle test would have detected controlled substances that

KMS consumed within 90 days prior to the sample date. Had counsel investigated pretrial, he

would have obtained this evidence from BioMed Testing Services.

24 No. 58245-7-II

KMS alleged Barton was giving her methamphetamine to use during a discrete period

during the summer of 2021 that corresponded very closely with the 90 days before her hair sample

was taken. Counsel did not present expert or documentary evidence of the results or their duration,

but instead relied on the State’s witness to testify about the test results. Counsel then failed to

object to Deputy Acdal’s misleading testimony about the time period covered by the test—Acdal

suggested that it was “[n]o more than a few days” based on what he had been told by an

unidentified person. 1 VRP at 385. Deputy Acdal then agreed with the prosecutor that “it makes

sense that the hair follicle sample didn’t come back with methamphetamine in it.” Id. Counsel

attempted to develop the issue further the next day, but still did not present definitive evidence of

the test result or the much longer time period it covered. This performance left the jury with

misleading testimony as to the test’s duration.

Moreover, there was no strategic reason not to pursue more definitive evidence, such as

the report from BioMed with an expert’s explanation to correct Deputy Acdal’s testimony about

the duration of the hair follicle test. At the very least, counsel could have objected to Deputy

Acdal’s testimony and sought a short recess. Although counsel attempted to correct Deputy

Acdal’s testimony, counsel never presented conclusive evidence of the test’s duration that would

have more strongly refuted Deputy Acdal’s testimony and ultimately undermined KMS’s

testimony that she consumed methamphetamine with Barton all summer.

Therefore, we conclude that a reasonable investigation would have included obtaining

admissible evidence of the actual duration of the test result, and the failure to present this evidence

was not due to a reasonable strategic choice by trial counsel. Given all the circumstances, we hold

25 No. 58245-7-II

Barton’s counsel performed deficiently by failing to obtain easily obtainable evidence about the

test’s duration.

C. Prejudice

Although counsel performed deficiently, we conclude that Barton cannot show prejudice

in light of the State’s other evidence against him.

We acknowledge that had Barton presented evidence showing that KMS did not consume

methamphetamine that summer, that evidence could have damaged KMS’s credibility to some

degree. As the complaining victim, KMS’s credibility was “particularly relevant” because she was

“central to the prosecution’s case.” State v. Lee, 188 Wn.2d 473, 488, 396 P.3d 316 (2017). We

also acknowledge that methamphetamine use was tied to KMS’s rape allegations because KMS

testified that Barton made his first sexual advance shortly after providing her with

methamphetamine for the first time. KMS explained that Barton gave her methamphetamine daily

throughout the summer as a precursor to sexual contact and that methamphetamine increased her

libido. Proof that she did not actually consume methamphetamine in the weeks she stayed with

Barton could have undermined the strength of KMS’s testimony.

However, KMS’s rape allegations were highly specific, especially given that she was 13,

made without a clear motive to lie, and corroborated by the Instagram messages as described by

KMS and two other witnesses. It is compelling that the jury heard KMS’s extremely detailed

descriptions of the three charged incidents. KMS’s testimony was specific, including the exact

location and details about conversations and actions before, during, and after each of the charged

rapes. This high level of specificity, as well as the matter-of-fact but graphic nature of this

testimony, enhanced KMS’s credibility.

26 No. 58245-7-II

Additionally, KMS testified that she was in love with Barton and wanted to keep the

instances of intercourse a secret, going so far as to explain that she set the passcode on the phone

to reflect their ages when they could be together, 18 and 60. When CS first confronted KMS, KMS

wanted to protect Barton so she could continue to see him, not accuse him. The jury saw no

evidence of a plausible motive for KMS to falsely accuse Barton. It is unlikely that absent such a

motive, the jury would have believed KMS fabricated such elaborate testimony.

The Instagram messages between Barton and KMS also corroborated KMS’s rape

allegations. The messages were extremely damaging to Barton’s defense, as they included a term

of endearment typically used between romantic partners, explicit sexual references, and a reference

to when KMS would turn 18. The message, “‘I don’t regret anything either’” strongly suggested

an unlawful relationship and references to photos corroborated KMS’s testimony that they were

exchanging nude photographs. 1 VRP at 349.

Although Barton argued that he never sent the messages to KMS, the jury had little reason

to doubt that the messages actually existed and were sent between KMS and Barton. CS explained

that she recognized Barton’s Instagram profile from her own previous communications with him

on Instagram. It is immaterial that the messages were not presented as documentary evidence

because they were thoroughly described by KMS, as well as CS and Deputy Acdal, who saw the

messages. CS described seeing “probably 60 nude photos” sent between KMS and Barton, and

both CS and Deputy Acdal recognized the nude photos that were offered into evidence. 2 VRP at

478. Therefore, regardless of how strongly Barton attacked KMS’s credibility, Barton could not

overcome the highly incriminating Instagram messages.

27 No. 58245-7-II

Additionally, although Barton attempted to argue that the messages were simply lacking

“context”; the messages were so clearly sexually suggestive, that they could not possibly have

been explained away as innocent comments between relatives. 2 VRP at 658. There is simply no

“context” in which the jury could have viewed the messages as anything other than a discussion

about an ongoing sexual relationship with a 13-year-old girl. Id.

Finally, as the State points out, a negative methamphetamine result does not mean KMS

did not consume some unknown controlled substance. KMS testified that Barton told her the

substance was methamphetamine and the jury could have concluded that Barton was lying. KMS,

a child, had never used methamphetamine before the summer Barton allegedly gave it to her,

though she had seen photos of it. And KMS’s hair follicle test did not cover each and every other

controlled substance that Barton could have used to make KMS more amenable to intercourse with

him.2 The State’s grooming argument would have been equally strong if the jury believed KMS

consumed some other drug, or even a placebo.3 We also note that unlike this court, the jury had

the opportunity to observe KMS’s testimony, as well as testimony from the defense witnesses and

to weigh their credibility in light of their motivations, including Judy’s motivation (as his mother)

to protect Barton.

2 KMS’s hair follicle test was also negative for phencyclidine, cocaine, and opiates, and the urine test was negative for cocaine, morphine/hydrocodone, phencyclidine, MDMA/ecstasy, 6- acetylmorphine, and oxycodone/oxymorphone. 3 The jury could have concluded that even if the substance in question was not a controlled substance at all, Barton’s point in giving it to KMS was to adultify the interaction between her and Barton and enable KMS to feel like a grown-up. This would have been consistent with KMS’s hyper-focus on turning 18 so she could be with Barton.

28 No. 58245-7-II

Therefore, we conclude that the State’s evidence strongly supported KMS’s account of

Barton’s behavior, regardless of whether KMS ever actually ingested methamphetamine that

summer; either because the jury could infer Barton gave KMS another unknown substance, or

because other evidence strongly supported that she was raped, even if Barton did not give her

methamphetamine. We conclude that the jury would have reached the same outcome even if it had

heard more definitive testimony proving that KMS did not consume methamphetamine that

summer. Barton therefore has not shown prejudice from his trial attorney’s deficient performance.

III. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Barton argues that in his direct appeal, his attorney performed deficiently by failing to

challenge an indirect comment on his silence that Deputy Acdal made when he explained that

officers “were never able to get a PIN number for Mr. Barton.” 1 VRP at 353. We disagree.

PRP petitioners raising ineffective assistance of appellate counsel must show that their

attorney failed to raise an issue with underlying merit and that they suffered actual prejudice from

the error. In re Pers. Restraint of Meredith, 191 Wn.2d 300, 308, 422 P.3d 458 (2018). Actual

prejudice requires showing a reasonable probability that if their appellate counsel had raised the

issue, the petitioner would have prevailed in their direct appeal. In re Pers. Restraint of Dalluge,

152 Wn.2d 772, 788, 100 P.3d 279 (2004).

Because an accused person has the constitutional right to remain silent, due process

prohibits the State from relying on the defendant’s silence as substantive evidence of guilt. State

v. Easter, 130 Wn.2d 228, 241, 922 P.2d 1285 (1996). However, under the open door doctrine, “a

party can waive protection from a forbidden topic by broaching the subject” and thereby increasing

the subject’s relevance at trial. State v. Rushworth, 12 Wn. App. 2d 466, 473, 458 P.3d 1192

29 No. 58245-7-II

(2020); State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). The doctrine applies to evidence

that would be inadmissible “for reasons of policy or undue prejudice,” but courts can decline to

apply the doctrine based on other evidentiary rules. Rushworth, 12 Wn. App. 2d at 473; Fite v.

Mudd, 19 Wn. App. 2d 917, 935, 498 P.3d 538 (2021).

Washington courts have held that when the accused opens the door to otherwise prohibited

comments about their postarrest silence, the defendant has waived their right to have the evidence

excluded on constitutional grounds. State v. Vargas, 25 Wn. App. 809, 812, 610 P.2d 1 (1980);

State v. Kendrick, 47 Wn. App. 620, 630-31, 736 P.2d 1079 (1987). Whether the defendant has

opened the door, in the Fifth Amendment context, depends on whether the State’s subsequent

testimony is relevant to rebut a false or misleading impression created by the defense’s argument

or evidence. See State v. Holmes, 122 Wn. App. 438, 444-45, 93 P.3d 212 (2004) (defendant, who

elicited testimony that he cooperated with police, did not open the door to testimony that he did

not act surprised when arrested because this went beyond rebutting the impression that he

cooperated with police); Vargas, 25 Wn. App. at 812 (defendant opened door to evidence of his

postarrest silence by testifying that he cooperated fully and gave a statement to police).

Here, Barton opened the door to the challenged testimony when in his opening statement,

Barton argued that the police seized his cell phone but did not properly investigate it. In the context

of Barton’s entire argument, his comments invited the jury to infer police incompetence from the

fact that the State did not present a Cellebrite examination of his phone. He commented, for

instance, that although the police had his phone, “[n]o one bothered to look” for evidence that

could have shown what truly happened. 1 VRP at 182. This argument, and similar ones, left the

jury with the false impression that the police could have performed a Cellebrite extraction with the

30 No. 58245-7-II

information it had. Thus, the State was permitted under the open door doctrine to introduce

rebutting evidence explaining that it could not perform the extraction.

Additionally, Barton failed to object to Deputy Acdal’s initial testimony about why he

could not obtain the contents of Barton’s phone; Barton elicited similar testimony during cross-

examination; and he relied on Deputy Acdal’s testimony on this subject in his closing remarks.

Thus, the argument underlying Barton’s claim of ineffective assistance of appellate counsel would

not necessarily have been reached in Barton’s direct appeal because of a failure to preserve, even

if it were raised and argued by competent appellate counsel. See RAP 2.5(a). And although we

need not engage in a full RAP 2.5(a) analysis to conclude that no error occurred, Barton’s strategic

decisions suggest that trial counsel did not view the challenged comments as harmful to his

defense, but may instead have viewed them as helpful.

Barton relies on Hemphill v. New York, 595 U.S. 140, 142 S. Ct. 681, 211 L. Ed. 2d 534

(2022), to assert that “a defendant cannot open the door to a constitutional violation.” Reply Br. of

Pet’r at 13. Although this may be one possible reading of Hemphill, Barton has not shown it to be

the correct one. We decline the invitation to apply Barton’s broad reading of Hemphill in this

context because Hemphill involved a Sixth Amendment challenge to the trial court’s admission of

unconfronted testimonial hearsay. Whereas here, Barton’s postarrest silence was protected by the

Fifth and Fourteenth Amendments, and that protection is otherwise subject to waiver on fairness

and policy grounds. 595 U.S. at 151-53.

As explained above, Washington precedent permits the application of our open door rule

in the Fifth Amendment context. That precedent is not inconsistent with Hemphill because our

open door rule contemplates that even after the door is opened, evidence can still be subject to

31 No. 58245-7-II

exclusion on other evidentiary grounds. See Rushworth, 12 Wn. App. 2d at 473; Fite, 19 Wn. App.

2d at 935. Moreover, federal precedent allows for waiver of the Fifth Amendment privilege in a

wide variety of contexts, including analogous evidentiary contexts where, under the circumstances,

“[t]he interests of the other party and regard for the function of courts of justice to ascertain the

truth become relevant, and prevail in the balance of considerations determining the scope and

limits of the privilege against self-incrimination.” Brown v. United States, 356 U.S. 148, 156, 78

S. Ct. 622, 2 L. Ed. 2d 589 (1958) (defendant waived privilege with respect to cross-examination

within proper scope of his own voluntary direct testimony); see also Kansas v. Cheever, 571 U.S.

87, 95, 134 S. Ct. 596, 187 L. Ed. 519 (2013) (defendant waived privilege by introducing expert

testimony on his mental state). We are therefore unconvinced that Hemphill should be read to

prevent waiver of the Fifth Amendment privilege by opening the door under the facts of this case,

where Barton introduced the subject to inquiry, left a misleading impression, and thereafter

emphasized the challenged comments in his closing argument.4

In sum, Barton’s appellate attorney would not have succeeded if she had argued Deputy

Acdal’s comment was a basis for reversal because Barton’s trial counsel opened the door to the

comment, failed to object or move to strike the comment, and later relied on the challenged

testimony in closing. We need not address the issue of whether the comment amounted to an

indirect comment on his silence because regardless of this, Barton cannot show the requisite

prejudice. Therefore, his claim of ineffective assistance of appellate counsel fails.

4 We recognize that Hemphill also discussed the Fifth Amendment with regard to exclusion of a defendant’s coerced statements, but there is no argument involving coercion here. 595 U.S. at 154. We are unaware of a case that applies Hemphill’s reasoning to postarrest silence, a right that is unquestionably waivable.

32 No. 58245-7-II

IV. BRADY VIOLATION

Barton argues that the State violated his right to due process by withholding material

evidence that was favorable to his defense. He claims that the State should have produced evidence

of Deputy Eastham’s untrustworthiness and possible corruption. Although we are deeply troubled

by the State’s failure to disclose the facts Barton now identifies, we conclude that because of the

limited nature of Deputy Eastham’s testimony, Barton was not prejudiced and therefore is not

entitled to relief on this basis.

Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), a

prosecutor has the duty to discover and disclose favorable evidence that is “known to the others

acting on the government’s behalf in the case.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct.

1555, 131 L. Ed. 2d 490 (1995). This duty is mandatory “regardless of any failure by the police to

bring favorable evidence to the prosecutor’s attention.” Id. at 420.

A defendant raising a Brady violation must show that the particular piece of evidence was

exculpatory or impeaching, willfully or inadvertently suppressed, and material to the outcome of

their case. In re Pers. Restraint of Mulamba, 199 Wn.2d 488, 498, 508 P.3d 645 (2022). We apply

this standard whether the defendant raises their Brady argument in a PRP or on direct appeal. Id.

Under the third prong, the defendant must show a reasonable probability that if the evidence had

been timely disclosed to the defense, their trial would have reached a different outcome. Id.

In this PRP, Barton has attached evidence suggesting that Deputy Eastham lied and

engaged in misconduct to further a prosecution, that he was on unpaid administrative leave at the

time he testified due to an investigation, and that he had a poor reputation for truthfulness. The

evidence suggests that Deputy Eastham had a pattern of, for instance, losing or otherwise

33 No. 58245-7-II

mishandling controlled substances during his time as a police officer. It also suggests that Deputy

Eastham took steps to falsely imply that drugs were lawfully found in plain view during a

protective sweep.

However troubling this evidence is, Barton is not entitled to relief absent a showing of

prejudice or materiality. Deputy Eastham played a very minor role in the State’s investigation of

Barton, having contributed only by running the Cellebrite extraction on KMS’s phone. Although

this was a search, extracting data from a cell phone does not provide the same opportunity to

manipulate the search results as Deputy Eastham allegedly did during the protective sweep

described in Barton’s newly provided evidence. Moreover, although the Cellebrite report was a

major point of contention between the parties, that controversy involved what the Cellebrite

undisputedly did not show (Instagram messages), rather than evidence that could have been

unlawfully obtained or manufactured. And though the parties argued competing inferences from

the missing Instagram messages, they did not disagree on the essential facts that the State

introduced through Deputy Eastham’s testimony.

Barton emphasizes that Deputy Eastham was responsible for downloading nude photos

from KMS’s phone, but none of the parties has ever disputed that her phone contained such photos

of herself and other teenagers around her age. And Deputy Eastham did not testify that these

images were sent to Barton on Instagram; instead, he testified that he could not download messages

or pictures from Instagram using Cellebrite. Therefore, attacking Deputy Eastham’s credibility

would not have changed the jury’s verdict.

Furthermore, according to Barton, the State did timely produce a significant amount of

impeachment evidence that detailed many instances of dishonesty, including that Deputy Eastham

34 No. 58245-7-II

lied extensively to another officer about a fictitious controlled buy that never took place. Barton

did not impeach Deputy Eastham with this evidence, evidently agreeing with our assessment that

doing so would not aid his client’s defense. Counsel may also have had a tactical reason to avoid

appearing to attack law enforcement, especially where the evidence Deputy Eastham was

presenting was technical and uncontroverted.

Therefore, notwithstanding the troubling police misconduct Barton has identified in this

PRP, we conclude that in light of Deputy Eastham’s limited involvement, Barton cannot show that

the withheld evidence would have had any impact on his trial. Barton has not demonstrated that

he is entitled to relief due to a Brady violation.

V. RAPE SHIELD STATUTE

Barton also argues that he is unlawfully restrained under an allegedly unconstitutional

provision within Washington’s Rape Shield Statute. Barton claims that RCW 9A.44.020(1)

violates several constitutional principles, including separation of powers; the privileges and

immunities clause; the equal protection clause; and the prohibition against bills of attainder. We

disagree.

The challenged statutory provision reads, “In order to convict a person of any crime defined

in [chapter 9A.44 RCW, sex offenses] it shall not be necessary that the testimony of the alleged

victim be corroborated.” RCW 9A.44.020(1).5 Because we presume statutes are constitutional,

Barton bears the burden of proving this provision’s unconstitutionality beyond a reasonable doubt.

State v. Farmer, 116 Wn.2d 414, 419, 805 P.2d 200 (1991). Additionally, to obtain collateral relief

5 We cite the current statute because recent amendments do not affect our analysis. Compare RCW 9A.44.020 to former RCW 9A.44.020 (2013).

35 No. 58245-7-II

Barton must state specific facts and argument to show that his restraint is unlawful. RAP

16.7(a)(2). Arguments made only in broad, general terms are insufficient to merit collateral review.

In re Pers. Restraint of Rhem, 188 Wn.2d 321, 327-28, 394 P.3d 367 (2017).

As a threshold matter, we first note that at common law, and in Washington before 1907,

a rape victim’s testimony was sufficient to support a jury’s guilty verdict. State v. Fetterly, 33

Wash. 599, 603, 74 P. 810 (1903); State v. Roller, 30 Wash. 692, 695, 71 P. 718 (1903). Barton is

correct that Washington enacted a corroboration requirement in 1907, but the corroboration

requirement was repealed in 1913. See LAWS OF 1907, ch. 170, § 1; LAWS OF 1913, ch. 100, § 1.

See also State v. Morden, 87 Wash. 465, 467-69, 151 P. 832 (1915) (explaining that the 1907

statute departed from common law and applying pre-1907 case law to hold that no corroboration

was required after repeal of the statute). Therefore, when viewed in its proper context the

challenged provision merely codified the status quo at common law, reflected what Washington

courts had already held, and articulated an expression of the central tenet that credibility

determinations are for juries to decide.6

It is true that the noncorroboration instruction has been widely criticized. See, e.g., State v.

Zimmerman, 130 Wn. App. 170, 180-83, 121 P.3d 1216 (2005) (noncorroboration instructions are

problematic but are not unconstitutional comments on the evidence); State v. Kovalenko, 30 Wn.

6 See Wallace D. Loh, The Impact of Common Law and Reform Rape Statutes on Prosecution: An Empirical Study, 55 WASH. L. REV. 543, 561 (1980) (“Washington courts, however, have not required corroborated testimony and the new statute [former RCW 9A.44.020(1) (1979)] codifies existing case law for both forcible and statutory rape.”); Susan Estrich, Rape, 95 YALE L.J. 1087, 1137 (1986) (no corroboration requirement at common law; legislatures enacted corroboration requirements based on concerns about the difficulty of defending against a false accusation of a sexual offense and a perceived tendency for rape victims to lie); U.S. CONST. amends. X, XI, XIV; Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt).

36 No. 58245-7-II

App. 2d 729, 745, 546 P.3d 514 (2024) (same); State v. Rohleder, __ Wn. App. 2d __, 550 P.3d

1042, 1045-48 (2024) (same). But those criticisms derive not from the content of the provision but

from the idea that jurors could view the instruction as a comment on the evidence. And as we have

discussed at length above, KMS’s testimony was actually corroborated in this case. Thus, without

a jury instruction, it is difficult to see how the provision could have affected the jury’s assessment

of the State’s case against Barton.

Barton asserts broadly that he was prejudiced when the prosecutor mentioned in opening

statements, without objection, that the State was not legally required to corroborate KMS’s

testimony to meet its evidentiary burden. But the remark itself was brief, isolated, and not repeated.

Barton does not explain how the remark could possibly have impacted the jury’s verdict where the

State did present corroborating evidence for KMS’s allegations.

Furthermore, even though the court did not give a noncorroboration instruction here,

Barton’s argument in closing is an example of why such an instruction is permissible in some

cases. Barton’s attorney told the jury, without objection, that it could not convict Barton “by simply

focusing on the emotional testimony of a 13-year-old girl.” 2 VRP at 686. This is a misstatement

of the law; a jury can convict based on a victim’s testimony alone if it finds that testimony credible.

The State was entitled to argue that KMS’s testimony, if credible, could be determinative.

We conclude that Barton’s argument is insufficient to meet his burden to prove unlawful

restraint on this ground because he has failed to show how the State’s comment, made only in

opening, made any difference in the jury’s verdict.

37 No. 58245-7-II

VI. SENTENCING

Barton argues that he was denied due process because he was denied an individualized

inquiry before appearing in restraints at his sentencing hearing. Shackles and other restraints risk

impairing decision-making due to implicit bias, regardless of whether the decision-maker is a

judge or a jury. State v. Luthi, 3 Wn.3d 249, 260, 549 P.3d 712 (2024). In light of that risk, due

process requires that “trial courts must engage in an individualized inquiry before every hearing to

determine whether there are extraordinary circumstances justifying courtroom restraints for

security reasons.” Id. at 265.

The State concedes that Barton is entitled to resentencing because here, the court made no

individualized inquiry into the need for restraint. We accept the State’s concession and remand for

resentencing.

VII. ADDITIONAL ARGUMENTS

Barton’s initiation petition challenges his confinement on the following grounds not

addressed in his supplemental petition: the State failed to conduct a full investigation before

charging him, erroneous probable cause determination and pretrial detention based on hearsay

evidence, and various other constitutional grounds. To the extent that Barton’s petition overlaps

with his PRP counsel’s supplemental briefing with regard to the constitutionality of RCW

9.94A.020(1) and ineffective assistance of counsel, those issues are addressed above. Barton’s

initiation petition otherwise makes arguments only in broad, general terms, referring to

constitutional provisions, statutes, and rules—but he fails to alert us to how these laws were

violated or facts supporting these arguments. RAP 16.7(a)(2); Rhem, 188 Wn.2d at 327-28.

38 No. 58245-7-II

Therefore, we decline to reach the arguments in Barton’s initiation petition that were not briefed

by counsel.

CONCLUSION

We grant the petition in part based on shackling at sentencing and remand for resentencing,

but we otherwise deny the petition.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

GLASGOW, J.

We concur:

CRUSER, C.J.

VELJACIC, J.