A Richland man twice convicted of killing his landlords claims his trial attorneys were ineffective for failing to follow up on a report that may have verified his alibi.
Kevin Hilton says the lawyers performed deficiently and, as a result, he was prejudiced by their failures with guilty verdicts for the March 2002 deaths of Josephine and Larry Ulrich.
He filed a personal restraint petition challenging the conviction in the hopes of getting a new trial and being released from prison in the interim.
However, a three-judge panel of the Washington state Court of Appeals dismissed the petition, saying what Hilton viewed as potential alibi evidence “does not clinch his defense.”
In a 56-page opinion released Tuesday, the court wrote: “Any deficient performance by Mr. Hilton’s lawyers did not give rise to prejudice when the premise that a person was physically present at the Ulriches’ keyboard is purely speculative and thus cannot support Mr. Hilton’s alibi and theory that Lisa Ulrich was the killer.”
Lisa Ulrich is the victims’ daughter. Hilton, now 57, has remained adamant that he is innocent and tried to place the blame on someone else, including her.
He is serving a life sentence at Airway Heights Corrections Center, west of Spokane.
Benton County Deputy Prosecutor Terry Bloor — who handled Hilton’s second trial with former colleague Scott Johnson — noted that the appellate court was very meticulous in going through all of Hilton’s claims.
“I don’t think anybody could say that they didn’t consider his arguments thoroughly. I think they answered every issue that he brought up,” Bloor told the Herald. “I hope this really brings some finality to the case.”
Lenell Nussbaum, Hilton’s longtime appellate lawyer from Seattle, said she is not giving up the fight.
“This is not over. We will be taking it to the state Supreme Court and, if need be, we will be taking it to federal court after that,” she said Tuesday.
Nussbaum has 30 days to file a motion for discretionary review by the Supreme Court.
She told the Herald that she’d only read the lengthy opinion once in the hours after its release, but will review it in more detail to prepare her motion.
“I disagree very much with the Court of Appeals’ opinion,” Nussbaum said. “I’m very, very disappointed in the courts.”
Josephine, 67, and Larry, 72, were killed March 20, 2002.
Hilton rented a Mahan Avenue duplex from the couple for about six years. He owed $3,475 in back rent and penalties and was unemployed at the time.
Prosecutors said at trial that Hilton became desperate when the Ulriches served him with a three-day notice to pay up or move out.
A receipt found in Larry Ulrich’s hand was made out to Hilton for $3,475. Jurors cited that as key evidence.
Hilton testified that he could not explain the receipt, that he never received the eviction notice and that he’d reached an agreement with the Ulriches to pay $2,000 plus interest within six months and to work off the balance.
Daughters Lisa and Jennifer Ulrich were familiar with their parents’ rental practices and testified that their mother would issue a receipt only if the renter had dropped by the house with a cash payment. The sisters also said they doubted their parents would have made that agreement with Hilton because it would have allowed him to live rent-free for six months.
Hilton was convicted by a Benton County Superior Court jury in 2003 on two counts of aggravated first-degree murder.
That conviction was thrown out when the Court of Appeals ruled the initial search warrants for Hilton’s home were invalid, which meant all evidence taken from the home was illegally seized and couldn’t be used by prosecutors. That included shell casings which were fired by the same gun as those found in the Ulriches’ home.
Hilton’s second trial was moved to Asotin, 140 miles east of the Tri-Cities, because of extensive media coverage over the years since the deaths. He was convicted again in February 2008.
Kevin Holt of Kennewick and Peter Connick of Seattle represented Hilton in both trials.
In 2012, all nine Supreme Court justices denied Hilton’s petition to review his conviction.
Since Hilton has exhausted his traditional appeals and is not allowed to file another one, he sought relief with the personal restraint petition, which is designed to point out new information that was not available to the defense or a new law that has come into effect since the appeal was finalized.
Hilton says the state violated his right to due process by failing to provide the defense with evidence before trial relating to usage of the Ulriches’ home computer.
Evidence that the Ulriches’ computer was being used until 8:07 p.m. would have contradicted the prosecution’s theory that Hilton killed the couple sometime between 6:42 p.m. and 7:41 p.m., Hilton argues.
He said it was not disclosed to the defense that prosecutors asked a Battelle expert to explain and confirm the activity times on the computer.
If Holt and Connick had pursued that evidence, they might have been able to show jurors that either the Ulriches were still alive at that later time or the “real killer” was still inside the house at a time Hilton was known to be in his own home using his computer, he says.
Holt filed a declaration for Hilton’s petition stating he primarily was responsible for investigating and presenting the computer evidence at trial.
Holt acknowledged receiving the report, but said he didn’t understand the significance of the detective’s conclusion, otherwise he would have used it to support their claims that someone else was responsible, the opinion said.
Connick said he does not remember seeing the detective’s report, but undoubtedly would have reviewed it if included in documents that came from the prosecution and investigators.
The appellate court also rejected claims the defense attorneys were ineffective because they “unwittingly waived” a defense relating to another possible suspect. The judges said the case lacked “relevant admissible third party perpetrator evidence.”