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                                                                                                                         r ESE D
                                                                                                            L"MU:RT OF APPEALS
                                                                                                                       1V p CJ. 1 C,;p, r ' I I
                                                                                                          2. 13>'' 10V 13            Ail H: 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JUAN JOSE RECINOS,                                                               UNPUBLISHED OPINION




              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'     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
    Miranda         v.   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


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


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, Tiffany 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, DeVone 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

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


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

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

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

 DeVone 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.
                                                                                                    3
            Tiffany' s    mother   and     stepfather,    Teresa         and   Mark Moreau,             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     boned
                                                                                                    T-        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

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




 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.


                                                                     9
No. 42599 -8 -II



          At a pretrial CrR 3. 5 hearing, Recinos moved to exclude admission of statements he

made to Pierce County Sheriff' s 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

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

 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.
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
         5
above.          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 of Recinos' 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.

                                                                E
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         boned them in the
                                                     T-                                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




                                                                  m
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 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.       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 call 911? ...

                    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.




6
    The   record      indicates, "( A    portion of         tape   played.)"    6 VRP at 767. Presumably, this was exhibit
 13 8, 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

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


                                                           ANALYSIS


                                                         1. 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.



                                                                    N.
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 - oned her daughter' s
                                                                       b

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



                                                                     E
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



                                             H. 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

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'                               incrimination.
                                    s privilege against self -                          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. If the 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 Hearinz


           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

                                                                                                              8
assertions are without merit.                First,   more   than one omnibus          hearing   was   set.       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 purpose is to prevent last -
        minute surprise, trial disruption, and continuances and to encourage the early
        disposition of the cases through settlement. An attorney is impliedly authorized
        to waive procedural matters in order to facilitate a hearing or trial.

State v. Wilson, 29 WE 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
                                                                                        9
harmless beyond           a reasonable     doubt   and   does   not warrant reversal.



                                         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).                 Under this standard, we


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


meets the heavy burden of establishing 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.


                                                                 W
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.

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 testified 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.   011ivier, 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."    011ivier, No. 86633 -3, slip op. at 10; Barker v. Wingo, 407
                                                                                                                                  10
U.S. 514, 522, 533, 92 S. Ct. 2182, 33 L. Ed. 2d 101 ( 1972) (                      delay   was " well over    five   years ").



We      use    the     Barker test to       determine       whether the trial          court violated      the    defendant' s


constitutional rights.
                                011ivier, 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." 011ivier, 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 "            presumptive[]     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


io
      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.
                                                                                                       11
          But     unlike   Iniguez    who    faced four    counts     of   first degree robbery,            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


although the State' s case against Recinos rested in part on eyewitness testimony, it also rested

largely on forensic evidence from the vehicles involved in the collision and forensic evidence

regarding 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), cent. 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.




                                                                        Johanson, A.C.J.
We concur:




                                                          24
