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-12-

•

FILED COURT OF APPEALS

DIVISION II .

2013 NOV 13 AM 11: 16

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 42599-8-II

Respondent,

v.

JUAN JOSE RECINOS, UNPUBLISHED OPINION

Appellant.

JOHANSON, A.C.J.- Juan Jose Recinos appeals his jury convictions of attempted second

degree murder (two counts), vehicular assault, and failure to remain at the scene of an accident.

First, Recinos argues that the trial court committed evidentiary errors by erroneously admitting

(1) a 911 recording as an excited utterance, (2) his postarrest statements to police .officers in

violation of Miranda, 1 and (3) photographs of him in handcuffs. Recinos also argues that his

defense counsel was ineffective and cumulative error deprived him of a fair trial. In his

statement of additional grounds (SAG), Recinos asserts that the prosecutor engaged in

misconduct in closing arguments and cross-examination by referring to his postarrest partial

1 Mirandav. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

No. 42599-8-II

silence and the trial court violated his speedy trial rights. We affirm and hold that ( 1) the trial

court did not commit any evidentiary error because the 911 recording was an excited utterance,

Recinos's postarrest statements to officers were spontaneous and voluntary, and the court . ~ ' ..

properly weighed the photographs' probative value against their prejudicial effect; (2) defense

counsel was not ineffective; (3) any comment on Recinos's postarrest partial silence was

harmless error; ( 4) the court did not violate Recinos' s speedy trial rights; and ( 5) cumulative

error does not apply.

FACTS

Juan and Tiffany Recinos were married and lived in Puyallup. Recinos threatened

Tiffany that if he ever caught her having an affair, that he would kill them both. In mid-February

2010, Tiffany2 began a romantic relationship with Arthur DeVone and later that month she spent

the night with him. Two days later, Tiffany went to see DeVone at his parents' house. That

night, De Vane drove Tiffany's car around Tacoma and Puyallup while Tiffany rode in the

passenger's seat. Around 11 :30 p.m., Tiffany saw Recinos in the adjacent lane, driving their

family minivan. Recinos appeared angry. Suddenly bullets hit Tiffany's car. Then Recinos's

minivan collided with the passenger side other car. DeVone tried to drive away but Recinos

bumped the back of Tiffany's car with the minivan. De Vane accelerated to 90 m.p.h., ran a red

light, and collided with two other vehicles. When the car stopped, Tiffany was unconscious.

De Vane got out of the vehicle but could not stand because his leg was injured.

2 For clarity, we refer to Tiffany by her first name, intending no disrespect.

2

No. 42599-8-II

Recinos approached DeVone on foot, pointed a gun at his head, cocked it, and told him

that he should kill them both. He then hit DeVone's head with the gun and walked away.

DeVone, Tiffany, and another driver were hospitalized. DeVone suffered a broken leg and

Tiffany underwent six surgeries due to her severe injuries.

Tiffany's mother and stepfather, Teresa and Mark Moreau,3 also lived in Puyallup.

Around midnight that night, Teresa was awakened by Recinos's phone call saying that he was

coming to their house. When Recinos arrived, his pants, shoes, and socks were bloody and he

told Teresa that he had "found them together" and had shot and T-boned Tiffany's car. 5

Verbatim Report of Proceedings (VRP) at 585. Recinos also told her that their children were

home alone, so Teresa grabbed her keys, drove to Tiffany and Recinos's home, and called 911

from her cell phone while driving. Recinos then woke Mark. Soon, the police arrived at the

Moreaus' home and arrested Recinos. On February 25, the State filed its initial charges against

Recinos: two counts of attempted first degree murder, three counts of first degree assault, three

counts of vehicular assault, and one count of failure to remain at the injury accident.

I. PRETRIAL PROCEEDINGS

Trial was continued five times from the first trial date of July 6, 2010 to February 22,

2011. After pretrial hearings, the jury was called February 28. Although Recinos's counsel

agreed to every continuance, Recinos objected to each one.4

3 For clarity, we refer to Mark and Teresa in their individual capacity by their first name only, intending no disrespect. We refer to them collectively as the Moreaus.

4 Also, Recinos requested redacted copies of discovery, which he claimed his attorneys had not provided to him. About a month later, he requested the copies again. The Department of Assigned Counsel's assistant director told the court that he would check into the situation.

3

No. 42599-8-II

At a pretrial CrR 3.5 hearing, Recinos moved to exclude admission of statements he

made to Pierce County Sheriffs Deputy Aaron Thompson and Washington State Patrol

Detective Julie Gundermann after his arrest. Deputy Thompson explained that he could not

remember who but someone advised Recinos of his constitutional rights on the night of his

arrest. And Recinos invoked his right to remain silent "immediately upon contact." VRP (Feb.

22, 2011) at 14. Deputy Thompson placed Recinos in his patrol car, and transported him,

handcuffed, to the incident scene. During the drive, Recinos asked Deputy Thompson "if his

wife, Tiffany, was okay." VRP (Feb. 22, 2011) at 16. Deputy Thompson responded that he did

not know. Recinos then said that he had learned that his wife was having an affair with "a black

man" and asked Deputy Thompson if he had any questions for him. VRP (Feb. 22, 2011) at 16.

Deputy Thompson responded that he could not ask any questions because Recinos had invoked

his right to remain silent. He then turned Recinos over to the state patrol at the scene of the

incident and had no further contact with him.

Detective Gundermann testified that Recinos was transferred to the state patrol, and was

placed in the patrol car's back seat still handcuffed. The detective knew that Recinos had been

read his rights and she asked if he wanted to give a taped statement. He declined by saying he

wanted to speak with an attorney first.

When Recinos asked Detective Gundermann what he was being arrested for and what

was happening, the detective told him that there had been a collision and a shooting. Recinos

said that he did not know anything about a collision or a gun. After observing an injury to

Recinos's right hand, Detective Gundermann asked Recinos if he was injured, Recinos told her

that he was not injured. The detective had no further communication with him.

4

No. 42599-8-II

The trial court concluded that Recinos was in custody at the time of his statements to

Deputy Thompson and Detective Gundermann, that Recinos's statements were made sua sponte

and that they were not the result of police interrogation. Thus, Recinos's statements were

admissible.

II. TRIAL

On February 28, the first day of trial, the State filed an amended information, charging

Recinos with two counts of attempted second degree murder, two counts of first degree assault,

one count of vehicular assault, and one count of failure to remain at the accident scene. Trial

testimony was lengthy. DeVone, Tiffany, and the Moreaus testified to the facts as summarized

above. 5 Detective Gundermann identified several photographs that showed Recinos in

handcuffs. After Recinos's objection, the State argued that the cut on Recinos's hand was

relevant. Among others, the court admitted (1) a front view ofRecinos's full body seated in the

patrol car with his hands behind his back; (2) showing Recinos's hands in handcuffs and a cut on

one hand; and (3) showing a closer view of Recinos's hands in handcuffs. The court noted that

the photographs supported the State's theory that the mark on Recinos's right hand was a

laceration that could have been caused by the firearm's slide action that Recinos used to shoot at

his wife's vehicle.

Christopher Hayes, Recinos's fellow inmate, testified that Recinos had told him that he

tried to kill his wife because she was cheating on him, and that Recinos never told him that he

was trying to save his wife or that his wife was kidnapped.

5 The State also called Detective Gundermann, Deputy Thompson, the two other drivers of the vehicles involved in the accident, two witnesses who observed the accident and the scene, four forensic scientists with the state patrol, and Tiffany's family friend.

5

No. 42599-8-II

Recinos objected to admission of Teresa's 911 call. The 911 caller identified herself as

Teresa Moreau. She told the operator that her son-in-law, Recinos, told her that he had shot the

guy that her daughter was with and T-boned them in the car. Teresa explained that Recinos

arrived at her home, that her husband was also there, that he told them what happened, and that

she had just left to go get the kids. Recinos argued that Teresa's statements were inadmissible

hearsay and did not qualify as an excited utterance. The State argued that it was an excited

utterance considering Teresa's tone of voice, the language used, the call's timing, and that Teresa

had firsthand knowledge of what Recinos told her. The court allowed the first two and one-half

minutes of the recording to be played for the jury.

Pierce County Corrections Officer James Scollick testified about how the jail recorded·

inmate's phone calls and that he had recorded and copied several of Recinos' s phone calls.

Lastly, Recinos took the stand. Recinos testified that he never threatened to kill Tiffany,

he did not suspect that she was cheating on him, and he became worried when she did not return

home from work that night so he went looking for her. He testified that when he saw her in her

car that he feared she had been kidnapped so he shot at the tires to try to stop the car. Recinos

also testified that he accidently rear-ended Tiffany's car twice because he was driving distracted,

he was trying to find his cell phone to call the police, and Tiffany's car made two immediate

stops and he was not able to brake fast enough. But, he testified that his van never intentionally

hit Tiffany's car and that he checked on Tiffany after her car stopped but realized he could not

help her so he left the scene concerned about his children who were home alone.

During cross-examination, the State asked Recinos if he remembered a phone call that he

made to Jim Landon while in jail. When the State asked Recinos whether he had ever told

6

No. 42599-8-II

inconsistent stories about what happened the night of the incident, Recinos answered that he had

not. The State then played the phone call's recording that Scollick had earlier identified6 and

asked:

Mr. Recinos, would you agree with me that we just overheard you telling this individual, Jim-he asked you, I think, directly, Did you ever shoot at them? And. you were heard saying no. And, Did you ever shoot at their car? And you were heard saying no?

6 VRP at 767-68. Recinos responded, "That's correct." The State then asks, "And yet a few

moments ago you told this jury that you shot four to five times?" 6 VRP at 768. Recinos

answered, "At the tires." 6 VRP at 768. Recinos did not object to the State playing the

recording or the State's questions. Referring to Recinos's kidnapping fear theory, the State also

asked Recinos, "And yet you chose not to tell anyone about this until today?" 6 VRP at 784.

Recinos responded, "No, that's not true." 6 VRP at 784.

Then, during closing arguments, the prosecutor mentioned Recinos's kidnapping fear

theory again.

Why didn't he tell anybody that? .. . . . . Why didn't he call911? .. .

When the police were there waiting at the Moreau residence, he didn't tell the police, Whoa, there's been a big misunderstanding here, I was just trying to help, I thought she was kidnapped ....

As a matter of fact, ladies and gentlemen, . . . you [are] the first people to hear about it, over a year later . . . . That's the first time the record, the evidence in this case ever indicates anything about a kidnapping, was yesterday.

7 VRP at 865-67.

6 The record indicates, "(A portion of tape played.)" 6 VRP at 767. Presumably, this was exhibit 138, although the record does not indicate which exhibit number or which portion of the exhibit was played.

7

No. 42599-8-II

Outside the jury's presence, Recinos's counsel reported to the court that Recinos still had

not received the redacted discovery. A few days later, Recinos notified the court that he had still

not yet received the requested discovery. The next morning, Recinos's counsel then explained to

the court his efforts regarding getting Recinos the discovery: that he had previously sent the

transcripts to Recinos to review with the defense investigator, that he had requested redacted

copies from the Department of Assigned Counsel for months, and that after the court indicated

that Recinos could have unredacted copies, that he had taken them to Recinos. Recinos told the

court that he had received the discovery the night before but that he did not have an opportunity

to review all the transcripts. The court made no further comment.

The jury returned guilty verdicts for all counts and special verdicts that Recinos was

armed with a firearm at the commission of the attempted murder and assault convictions. At

sentencing, the State moved to vacate Recinos' s two counts of first degree assault. The court

vacated the two first degree assault convictions, explaining that the factual basis for the assault

charges was the same as the factual basis for the attempted second degree murder charges. Also

at sentencing, Recinos filed a pro se new trial motion and a relief from judgment motion. The

court denied both motions and sentenced Recinos. 7 Recinos appeals.

ANALYSIS

I. 911 RECORDING

First, Recinos argues that the trial court erroneously admitted the 911 recording as an

excited utterance because Teresa was not under the stress of a startling event. We disagree and

7 A few weeks later, the trial court entered a corrected judgment and sentence.

8

No. 42599-8-II

hold the trial court did not err because Teresa's statements were properly admitted as an excited

utterance.

A. Standard of Review and Rules of Law

We review a trial court's determination that a hearsay exception applies under an abuse

of discretion standard. State v. Magers, 164 Wn.2d 174, 187, 189 P.3d 126 (2008). Therefore,

we will uphold the trial court's ruling unless we believe that no reasonable judge would have

made the same ruling. State v. Thomas, 150 Wn.2d 821, 854, 83 P.3d 970 (2004). Although

hearsay is generally inadmissible, ER 803(a)(2) provides that certain excited utterances may be

admissible. Magers, 164 Wn.2d at 187. A statement qualifies as an excited utterance if "(1) a

starting event occurred, (2) the declarant made the statement while under the stress or excitement

of the event, and (3) the statement relates to the event." Magers, 164 Wn.2d at 187-88.

B. Analysis

Here, the startling event was that a bloody Recinos arrived at Teresa's home and told her

that he had shot the man Tiffany was with and that he had also T-boned Tiffany's car. On the

911 recording, Teresa's voice indicates stress and excitement. She sounds distraught, is talking

very fast, sounds as if she had been crying, and is out of breath. She called 911 shortly after

seeing that Recinos was bloody and hearing him say he shot a man and t-boned her daughter's

car. Teresa's statements to the 911 operator describe Recinos's arrival at her home and what he

said while there. Thus, the three part Magers test is met.

Recinos argues that Teresa's statements were not excited utterances because her voice

indicated that she was relatively calm, her statements were in response to questions, and her

statements were not spontaneous, relying on State v. Doe, 105 Wn.2d 889, 893-94, 719 P.2d 554

9

No. 42599-8-II

(1986) and State v. Williamson, 100 Wn. App. 248, 255-59, 996 P.2d 1097 (2000). Both cases

are distinguishable. Although the Doe court mentioned, in passing, that the child was calm and

made her statements in response to questions, neither of these facts were the basis of the court's

holding. Instead, the court based its holding on the lapse of time, three days, between the event

and the child's statements. Doe, 105 Wn.2d at 893-94. Recinos also cites Williamson, where the

State sought to introduce statements from a kidnapping victim to her sister and to a police

officer. Williamson, 100 Wn. App. at 251-52. The victim was kidnapped and threatened at

gunpoint by her ex-husband, then escaped and drove to her sister's house. Williamson, 100 Wn.

App. at 250-57.

Doe is clearly distinguishable because the court's concern in Doe was the lapse of time

between the incident and the statements. Here, Teresa called 911 a short time after Recinos

arrived at her home and told her about the shooting and the car accident involving Tiffany. On

the recording, she says that she hurried to leave after Recinos arrived because the children were

home alone. And although Recinos uses Williamson to argue that Teresa's statements are not

excited utterances because they were not spontaneous, the Williamson court held that the

victim's statements were spontaneous based on her emotional state, and the facts surrounding the

kidnapping were admissible, even though some were presumably made in response to questions.

Thus, Doe and Williamson do not support Recinos's argument.

Considering the circumstances surrounding Teresa's 911 call, Recinos fails to show the

trial court abused its discretion in admitting the 911 recording as an excited utterance. Recinos's

contrary argument fails.

10

No. 42599-8-II

II. CUSTODIAL STATEMENTS

Recinos argues that the trial court should have suppressed his statements to Deputy

Thompson and Detective Gundermann. The trial court did not err because all of Recinos's

statements to Deputy Thompson and Detective Gundermann were spontaneous and voluntary

and were not the product of interrogation or provocation.

When reviewing a trial· court's conclusion of voluntariness, we determine "whether there

IS substantial evidence in the record from which the trial court could have found that the

confession was voluntary by a preponderance of the evidence." State v. Broadaway, 133 Wn.2d

118, 129, 942 P.2d 363 (1997). Substantial evidence "exists where there is a sufficient quantity

of evidence in the record to persuade a fair-minded, rational person of the truth of the finding."

State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

Recinos first challenges finding of fact 8, which provides that "[t]he defendant then stated

to Deputy Thompson that he had just found out that his wife was having an affair with a black

guy." Clerk's Papers (CP) at 179. Deputy Thompson's testimony at the CrR 3.5 hearing

- supports this finding. Deputy Thompson testified that Recinos told him during the drive from

the Moreau house to the accident scene that "he had found out that she was having an affair with

a black man." 1 VRP at 16. And Deputy Thompson testified that Recinos's statement was not in

response to anything Deputy Thompson had said. Thus, a sufficient quantity of evidence exists

to persuade a fair-minded rational person of the truth of finding of fact 8.

11

No. 42599-8-II

Next, Recinos challenges the trial court's conclusion of law 2, which provides that "[t]he

statements of the defendant were made sua sponte and were not the result of police

interrogation." CP at 180 .. ,Here, the only question is whether Recinos's statements were the ------ - -·- --"- --~ --- - -~~-~-- --· - --·~·- ---~-----

result of an interrogation. Wholly unsolicited statements and statements made in response to ------- . .. ---- ----- .. . -I

words not likely to solicit incriminating information are admissible even in the absence of

Miranda warnings. State v. Eldred, 76 Wn.2d 443, 448, 457 P.2d 540 (1969). Interrogation

includes "'any words or actions on the part of the police ... that the police should know are

reasonably likely to elicit an incriminating response from the suspect."' State v. Richmond, 65

Wn. App. 541, 544, 828 P.2d 1180 (1992) (alteration in original) (quoting Rhode Island v. Innis,

446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)). Brief, neutral, non-accusatory

inquiries do not infringe on a defendant's privilege against self-incrimination. State v. Lister, 2

Wn. App. 737, 741,469 P.2d 597, review denied, 78 Wn.2d 994 (1970).

Deputy Thompson testified that Recinos made two statements to him during the drive

from the Moreau house to the accident scene: (1) Recinos asked if his wife was okay and (2) he

told Deputy Thompson that "he had found out that she was having an affair with a black man." 1

VRP at 16. Deputy Thompson testified that neither of these statements came in response to

anything Deputy Thompson said to or asked of Recinos. Deputy Thompson acted reasonably

and did nothing to call for a response from Recinos. The statements were unsolicited and

admissible even without Miranda warnings. Eldred, 76 Wn.2d at 448.

12

No'. 42599-8-II

It is also clear that Detective Gundermann did not say any words or take any action that

she should know were reasonably likely to elicit an incriminating response from Recinos. After

Recinos arrived at the scene, Detective Gundermann approached Recinos in the police vehicle

and asked him if he would like to give a taped statement. Recinos told her that he wanted to talk

to an attorney first. Then, without any further question or statement from Detective

Gundermann, Recinos asked her what he was being arrested for. Detective Gundermann told

Recinos that there had been a collision and a shooting. Recinos responded that he did not know

anything about a collision or a gun. Finally, after Detective Gundermann observed an injury to

Recinos' s right hand, she asked Recinos if he had any injuries to his hand. Recinos responded

that he did not. Detective Gundermann asked Recinos only brief, neutral, and nonaccusatory

inquiries that were not likely to elicit an incriminating response from him and those inquiries did

not infringe on Recinos's privilege against self-incrimination. Lister, 2 Wn. App. at 741. Thus,

Recinos's statements in response were admissible even without Miranda warnings.

We hold substantial evidence exists in the record to support the trial court's conclusion

that the confession was spontaneous and voluntary by a preponderance of the evidence. Thus, ---- .

the statements were admissible even without Miranda warnings.

III. CUSTODIAL PHOTOGRAPHS

Recinos argues that the trial court erred by admitting three photographs showing him in

the patrol car and handcuffed. Because the trial court properly weighed the probative value

against their prejudicial effect, we hold the trial court did not abuse its discretion.

13

No. 42599-8-II

We review a trial court's evidentiary rulings for abuse of discretion. State v. Lane, 125

Wn.2d 825, 831, 889 P.2d 929 (1995). The party seeking to exclude evidence must demonstrate

that the evidence's prejudicial effect substantially outweighs its probative value. ER 403.

Recinos objected to the photographs that showed him in handcuffs. The court noted that

the photographs supported the State's theory that Recinos's right hand had a laceration that could

have been caused by a firearm's slide action. The court also noted that the jury was going to

hear from officers that Recinos had been arrested and handcuffed. Thus, the photograph was not

unfairly prejudicial and the trial court did not abuse its discretion. Recinos also claims that the

photographs' admission violated his constitutional rights to the presumption of innocence and a

fair and impartial trial. Recinos cites three cases that are clearly distinguishable: one involving a

defendant compelled to appear at trial in shackles, State v. Finch, 137 Wn.2d 792, 975 P.2d 967

(1999), one involving a defendant compelled to appear in prison garb, Estelle v. Williams, 425

U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), and another that involved a trial held in a

jailhouse setting. State v. Jaime, 168 Wn.2d 857, 233 P.3d 554 (2010). Recinos cites no

authority that photographs depicting a defendant in handcuffs during his arrest, rather than at

trial, implicates constitutional protections. Thus, the trial court did not abuse its discretion in

admitting the photographs.

IV. INEFFECTIVE ASSISTANCE

Recinos argues that his trial counsel was ineffective for failing to object when the trial

court allowed the State to play Recinos's phone conversation recording from jail, because the

court had not properly admitted the exhibit as evidence. Recinos argues this prejudiced him

because the State used the recording to attack his credibility which was critical to his defense.

14

No. 42599-8-II

We hold that counsel was not deficient because there was no reasonable basis for excluding the

recording and although not formally admitted, there was no irregularity about the way the exhibit

was used at trial.

In his SAG, Recinos also asserts that trial counsel was ineffective for additional reasons:

(1) because counsel violated CrR 4.5 by failing to conduct an omnibus hearing and (2) because

counsel failed to ensure that Recinos received copies of redacted discovery. Recinos's assertions

fail.

A. Standard of Review and Rules of Law

Counsel is presumed to have acted competently unless defendant shows otherwise. State

v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). To succeed on an ineffective assistance

of counsel claim, the defendant must show that counsel's conduct was deficient and the

defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). If counsel's conduct can be characterized as legitimate trial

strategy or tactics, a claim of ineffective assistance fails. State v. Hendrickson, 129 Wn.2d 61,

77-78, 917 P.2d 563 (1996). The decision of when or whether to object is a classic example of

trial tactics. And if a challenge to evidence's admissibility would have failed, a defendant cannot

show that counsel was deficient for failing to object to it. State v. Nichols, 161 Wn.2d 1, 14-15,

162 P.3d 1122 (2007).

In order to show prejudice, a defendant must demonstrate that it is reasonably probable

that "but for counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694. lfthe ineffective assistance claim fails on one prong, we

15

No. 42599-8-II

do not address the other prong. State v. Staten, 60 Wn. App. 163, 171, 802 P.2d 1384, review

denied, 117 Wn.2d 1011 (1991).

B. Analysis

1. Recorded Jail Phone Call

Recinos claims that his counsel was ineffective for failing to object to the State playing

the jail phone call recording because the exhibit had not been formally admitted into evidence.

The State called Corrections Officer Scollick to testify about how the jail recorded phone calls

and to identify the recording. Later, during the State's cross-examination of Recinos, the State

asked whether Recinos ever told anyone inconsistent stories about what happened the night of

the incident, Recinos said he had not. The State then played the recording that Scollick had

earlier identified, and asked:

Mr. Recinos, would you agree with me that we just overheard you telling this individual, Jim-he asked you, I think, directly, Did you ever shoot at them? And you were heard saying no. And, Did you ever shoot at their car? And you were heard saying no?

6 VRP at 767-68. Recinos responded, "That's correct." The State then asks, "And yet a few

moments ago you told this jury that you shot four to five times?" 6 VRP at 768. Recinos

answered, "At the tires." 6 VRP at 768. Recinos did not object to the State playing the

recording or the State's questions.

To prevail on an ineffective assistance claim, Recinos must first show deficient

performance. Strickland, 466 U.S. at 687. But Recinos does not explain why any objection

would have been sustained or why the recording was improper evidence. Recinos does not cite

any cases or court rules as authority to support his argument that a simple failure to object to an

16

No. 42599-8-II

exhibit's formal admission amounts to deficient performance; therefore the issue is inadequately ·--,.·_ ---

briefed. \,RAP 10.3(a)(6).- Also, because Recinos bears the burden of demonstrating deficient

performance, Recinos has clearly not met his burden on appeal. Strickland, 466 U.S. at 687.

We hold that Recinos has not shown that counsel's conduct was deficient. And even if

counsel's performance was deficient, Recinos would also have to show that prejudice resulted.

Strickland, 466 U.S. at 694. Recinos only asserts that the State used the recording to attack

Recinos's credibility which was critical to his defense. But ER 607 provides that a witness's

credibility may be attacked by any party. The State was entitled to use the recording to attack his

credibility. We hold that Recinos has not established that his counsel was ineffective for failing

to object to the admission of the recorded jail phone call.

2. Omnibus Hearing

Recinos asserts that his counsel was ineffective when he failed to obtain an omnibus

hearing and when he failed to ensure that he received redacted copies of discovery. His

assertions are without merit. First, more than one omnibus hearing was set. 8 But, even if we

assumed that the omnibus hearing did not occur, it would not constitute ineffective assistance

because trial counsel can waive an omnibus hearing in order to facilitate trial. As Division One

of this court noted:

8 The first omnibus hearing was set for September 3, 2010 and both counsel agreed to continue the hearing to September 24. Our record does not contain any transcript from September 24; and the next transcript is a status conference on October 1, 2010. On October 1, the court continued the trial to November 16 and noted that an omnibus hearing would be set in two weeks. The next hearing in our record was October 15 and was a substitution of counsel hearing. The court appointed new counsel and continued the trial until January 18, 2011. It also noted that it would set an omnibus hearing. But again our record does not contain any further hearings until January 18, 2011, when the court granted yet another continuance. So it is unclear whether an omnibus hearing ever occurred.

17

No. 42599-8-II

CrR 4.5 [omnibus hearing] and 4.7 [discovery obligations] are procedural and not substantive as they merely allow for accelerated disclosure of information which ultimately must be revealed at trial and their purpo~~)-~_!:_o_p!ey~~! ~~t:­minute surprise, trial disruption, and continuances and to encourage the early disposition of the cases through settlerp.ent. An attorney is impliedly authorized

.to waive procedural matters in order to facilitate a hearing or trial.

State v. Wilson, 29 Wri. App. 895, 901, 626 P.2d 998, review denied, 96 Wn.2d 1022 (1981)

(citations omitted). Recinos fails to show that counsel was deficient. This ineffective assistance

claims fails.

3. Redacted Discovery

Next, Recino asserts his attorney was ineffective for failing to provide him with redacted

copies of discovery. This claim fails. Although Recinos apparently did not receive his own copy

of the discovery until part way through trial, Recinos cannot show a reasonably probability that

the proceeding's result would have been different had Recinos been given his own copy of

redacted discovery earlier. Recinos's counsel told the court that Recinos had prior opportunity to

review all the discovery before trial with the defense investigator, that several interns reviewed

discovery with Recinos, and that counsel had numerous conversations with Recinos about the

discovery. Thus, Recinos cannot show that having his own copy of the discovery would have

changed the trial's result. And without showing prejudice, Recinos's ineffective assistance

assertion fails. Strickland, 466 U.S. at 694; Staten, 60 Wn. App. at 171.

V. PROSECUTORIAL MISCONDUCT

In his SAG, Recinos asserts that the State committed misconduct when it commented on

Recinos's partial silence three times at trial in violation of Miranda. Because overwhelming

evidence supports Recinos's conviction and any rational trier of fact would have reached the

18

No. 42599-8-II

same conclusion, any alleged error touching on Recinos's right to postarrest silence was

harmless beyond a reasonable doubt and does not warrant reversal.9

A. Standard of Review and Rules of Law

During its case in chief, the State may not use evidence of a defendant's silence either as

substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt.

State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). When a defendant's silence is raised

at trial, we consider whether the prosecutor manifestly intended the remarks to be a comment on

that right. State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008). "[C]omment" means the

State uses the accused's silence to suggest to the jury that the refusal to talk is an admission of

guilt. Lewis, 130 Wn.2d at 707. A mere reference to silence which is a not a "comment" on the

silence is not reversible error absent a showing of prejudice. See Lewis, 130 Wn.2d at 706-07.

Eliciting testimony about and commenting on a suspect's postarrest silence or partial

silence is constitutional error and subject to our stringent constitutional harmless error standard. ·····.,. ·---~---~"· .. -· -- -------- ·-··· . ------ -

State v. Easter, 130 Wn.2d 228, 236-37, 242, 922 P.2d 1285 (1996). __ "{Jnder __ this standard, yve

presume constitutional errors are harmful and reverse and remand for a new trial unless the State

meets the heavy burd~.£1 of esta~lishing that the constitutional error was harmless beyond a

reasonable doubt. Easter, 130 Wn.2d at 242. A constitutional error is harmless beyond a

reasonable doubt only if the evidence is so overwhelming that any rational trier of fact would

necessarily have found the defendant guilty. Easter, 130 Wn.2d at 242.

9 In his SAG, Recinos also asserts that trial counsel was ineffective for failing to object to this alleged prosecutorial misconduct. Because we hold that the prosecutor did not commit misconduct, Recinos's ineffective assistance claim necessarily fails.

19

No. 42599-8-II

B. Analysis

First, Recinos asserts that the prosecutor violated his right to remain silent when he

improperly asked Hayes, Recinos's fellow cell mate, whether Recinos told Hayes that he

believed his wife had been kidnapped. Next, Recinos asserts the· prosecutor improperly

questioned him regarding why Recinos had not previously told anyone about his intention to

shoot at the car's tires. He asserts that the question, "And yet you chose not to tell anyone about

this until today?" also violated his right to remain silent. 6 VRP at 784. And Recinos asserts

that the prosecutor made improper argument in rebuttal closing by commenting on these things

and on Recinos' s belief that his wife had been kidnapped again.

Here, we will assume, without deciding, that the prosecutor's statements touched on

Recinos's partial postarrest silence and apply the constitutional harmless error standard. Thus ------------------- ---- ... - -- ----

we presume reversible error unless the evidence is so overwhelming that any rational trier of fact

would necessarily have found Recinos guilty. See Easter, 130 Wn.2d at 242. Such

overwhelming evidence is present here -

Specifically, Tiffany testified that she saw Recinos driving the minivan, appearing angry,

that bullets immediately hit her car, and that the minivan collided with her car multiple times.

DeVone testified that after the multi-car collision in the intersection, that Recinos approached

him on foot, pointed a gun at his head, cocked it, and told him that he should kill them both. ' r

t Recinos then hit him in the head with the gun and walked away. Teresa also testified that

Recinos arrived at her house bloody and told her that he had shot at and T-boned Tiffany's car.

And Hayes testifie~. that Recinos told him in jail that he tried to kill his wife because she was

cheating on him. In light of this overwhelming evidence demonstrating Recinos's guilt, we hold

20

No. 42599-8-II

that any rational trier of fact would necessarily have found Recinos guilty of two counts of

attempted second degree murder, one count of vehicular assault, and one count of failure to

remain at the scene of an accident. Accordingly, any error related to an improper comment on

Recinos' s postarrest silence was harmless beyond a reasonable doubt.

VI. SPEEDY TRIAL

In his SAG, Recinos asserts that the trial court violated his constitutional rights to a

speedy trial five times when it granted continuances on July 2, October 1, October 15, 2010, and

January 18 and February 7, 2011. Recinos's assertions fail.

A. Standard of Review

Both the United States Constitution and the Washington Constitution provide a criminal

defendant with the right to a speedy public trial. U.S. CONST. amend. VI; WASH. CONST. art. I,§

22. Our state constitution "requires a method of analysis substantially the same as the federal

Sixth Amendment analysis and does not afford a defendant greater speedy trial rights." State v.

Iniguez, 167 Wn.2d 273, 290, 217 P.3d 768 (2009). We review de novo constitutional speedy

trial claims. State v. Ollivier, No. 86633-3, slip. op. at 9 (Wash. Oct. 31, 2013); Iniguez, 167

Wn.2d at 280-81.

B. Analysis

A defendant's constitutional. rights to a speedy trial attach when a charge is filed or an

arrest is made, whichever occurs first. State v. Corrado, 94 Wn. App. 228, 232, 972 P.2d 515,

review denied, 138 Wn.2d 1011 (1999). Some pretrial delay is often "inevitable and wholly

justifiable," Doggett v. United States, 505 U.S. 647, 656, 112 S. Ct. 2686, 120 L. Ed. 2d 520

(1992), and any "inquiry into a speedy trial claim necessitates a functional analysis of the right in

21

No. 42599-8-II

the particular context of the case." Ollivier, No. 86633-3, slip op. at 1 0; Barker v. Wingo, 407

U.S. 514, 522, 533, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) (delay was "well over five years"). 10

We use the Barker test to ~termine whether the trial court violated the defendant's ~-- /

'constitutional rights. Ollivier, No. 86633-3, slip op. at 9.

But to trigger the Barker analysis, the defendant must first demonstrate that the "interval -between accusation and trial has crossed the threshold dividing ordinary from 'presumptively

------.-prejudicial' delay." Ollivier, No. 86633-3, slip op. at 10 (quoting Doggett, 505 U.S. at 651-52).

. ..

We consider the duration of pretrial custody, the charges' complexity, and the extent to which a

case involves a reliance on eyewitness testimony. Iniguez, 167 Wn.2d at 292 (citing Barker, 407

U.S. at 531). In Iniguez, our Supreme Court found "presumptiveO prejudic[e]" based upon a

more than eight-month delay. 167 Wn.2d at 291-92. The court found it important that (1) the

defendant had remained in custody throughout this period, (2) the charges against him were not

complex, and (3) such a lengthy delay "could result in witnesses becoming unavailable or their

memories fading," thus impairing his defense. Iniguez, 167 Wn.2d at 292. '•

.

Here, as in Iniguez, Recinos remained in custody pending trial, and the length of the

delay was similar. Trial was continued several times over Iniguez's pro se speedy trial

objections and finally began February 8, 2006. Iniguez, 167 Wn.2d at 278-79. The delay

between arrest and trial was over eight months. Iniguez, 167 Wn.2d at 292. Here, the State filed

its first charges against Recinos on February 25,2010, and trial was originally scheduled for July

10 As first articulated by the United States Supreme Court in Barker, we consider: (1) the length of pretrial delay, (2) the reason for delay, (3) the defendant's assertion of his or her right, and (4) prejudice to the defendant. 407 U.S. at 530.

22

/

/· /

No. 42599-8-II

6, 2010. After several continuances over his pro se objections, Recinos's trial ultimately began

February 28, 2011. The delay between Recinos's arrest and trial was 12 months.

But unlike Iniguez_who faced four counts of first degree robbery, 11 the charges against

Recinos were quite complex. The initial charges against Recinos involved three victims and

included two counts of attempted first degree murder, three counts of first degree assault, three

counts of vehicular assault, and one count of failure to remain at the accident scene. And I . /. \ ~' ·-.. L (A.'.. .

although the State's case against Recinos rested in part on eyewitness testimony, it also rest~d"\ · 1

.. i_ .. largely on forensic evidence from the vehicles involved in the collision and forensic evidence ~

:egarding the gun involved. And unlike in Iniguez, Recinos does not point to any danger that the

witnesses' memories would have faded or did fade due to the continuances or that any witnesses

became unavailable due to the delay. Recinos has not established that the time between his

arrest and trial was presumptively prejudicial. Thus, it appears that Recinos has not met the

threshold requirement for bringing his constitutional speedy trial claim and we do not need to

address the four-pronged Barker test.

VII. CUMULATIVE ERROR

Recinos argues that cumulative error deprived him of a fair trial. Under the cumulative

error doctrine, we may reverse a defendant's conviction when the combined effect of trial errors

effectively denies the defendant's right to a fair trial, even if each error alone would be harmless.

State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006), cert. denied, 551 U.S. 1137 (2007).

But cumulative error does not apply where there are no errors or where the errors are few and

11 Iniguez, 167 Wn.2d at 277.

23

No. 42599-8-II

have little or no effect on the trial's outcome. Weber, 159 Wn.2d at 279. Because we find no

error, cumulative error cannot apply.

We affirm.

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.

We concur:

~~~tJ. f: Johanson, A.C.J. I l , I v

~ , Penoyar, J.

~-

24