                                                                  FiLO
                                                          COURT OF APPEALS MY I
                                                           STATE OF WASHINGTON

                                                           2018 JAN -8 AN 10: 21




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                    )
                                        )       No. 74209-4-1
                    Respondent,         )
                                        )       DIVISION ONE
             v.                         )
                                        )
ENCARNACION SALAS IV,                   )       PUBLISHED OPINION
                                        )
                    Appellant.          )       FILED: January 8, 2018
                                        )

       BECKER, J. — The appellant, Encarnacion "EJ" Salas, was charged with

first degree murder with a deadly weapon for stabbing his close friend Jestls

"Jesse" Lopez in October 2014. Salas testified that he acted in self-defense. A

jury convicted Salas of second degree murder. We reverse the conviction,

finding prosecutorial misconduct in the use of PowerPoint slides and ineffective

assistance of counsel for failure to suppress statements Salas made to medical

providers.

                                     FACTS

       According to testimony at trial, Salas moved from Texas to Washington in

2013. He was 21 at the time. He shared a Lynnwood apartment with his aunts,

Ruby Salas and Cristal Salas. Lopez lived with his mother in the same

apartment complex and was Ruby's coworker. Lopez was about 10 years older

than Salas. The two developed a friendship. Salas said they regularly visited
No. 74209-4-1/2

each other's apartments to "drink, smoke marijuana, talk, watch TV shows,

cartoons."

       After a while their relationship became, as Salas described it, "kind of

homosexual." Their friends saw them as a couple. Salas testified that "it wasn't

a true homosexual relationship. It was more trying to get to that level, to be

comfortable, in order to get there." Salas described a time around August 2014

when Lopez made a sexual advance. "I tell him I'm uncomfortable with that, I'm

not ready."

       On October 24, 2014, around 11:30 p.m., police were dispatched to the

Lopez apartment. They found Lopez dead, lying on his back in the kitchen, blood

on the walls and floors, and "blood in quite a few places around his body." An

officer observed "a very significant injury to the right side of his neck." A forensic

pathologist determined that Lopez died from knife injuries. He had 15 total knife

wounds. Some were stab wounds, and others were referred to as "incised"

wounds. There were significant injuries to his lungs, his liver, and his external

jugular vein, all of which the examiner believed sufficient to cause death if not

urgently treated.

       The trial took place over 10 days in October 2015. The State's theory was

that Salas "brutally hacked up" Lopez and he did it "not because he was scared,

but because he was conflicted about his sexuality." The defense theory was that

Lopez attacked Salas and Salas killed him in self-defense.

       Antonia Lopez, the decedent's mother, testified that Salas and Lopez were

both drinking that night in the apartment. Antonia came out of her bedroom when



                                          2.
No. 74209-4-1/3

she heard a loud noise. She saw the two of them "struggling" near the door to a

balcony. Lopez, who had blood on his arm, was inside the apartment and Salas

was outside on the balcony. Antonia believed that Salas was trying to pull Lopez

outside onto the balcony.

       Antonia said she pulled her son away from Salas and leaned him up

against the kitchen counter. Salas ran to the front door. Antonia followed and

tried to prevent Salas from leaving, but at that point, Lopez "basically fell and

fainted" and said,"Mom, help me, I'm dying." Antonia saw Salas take

"something" from his backpack. Salas came back to where Lopez was lying on

the kitchen floor, kneeled over him, and did "something on the neck." Antonia

could not see if Salas was holding anything, but "he was really mad,just going at

it," "Like cutting him." She did not notice whether Lopez had injuries or blood on

his face or neck before Salas started "doing something" to his neck. Antonia said

she grabbed Salas by his ears "to get him out of there." Salas left the apartment

by jumping down from the balcony. Antonia summoned aid, but within minutes,

Lopez was dead where he lay on the floor.

       Salas testified that he came over to the Lopez apartment that evening with

a backpack containing alcohol and a knife. Salas testified that he "always"

carried a knife on him and had done so since living in Texas. He said he and

Lopez were drinking and playing with his knife, twirling or spinning it. At one

point, they went outside on the balcony to smoke marijuana. Salas said Lopez

"made a pass" at him by attempting to grab his genital area. Salas started

yelling, and Lopez struck him with what Salas soon realized was his knife. Salas
No. 74209-4-1/4

said he pried the knife away from Lopez and Lopez tried to get it back. They

ended up back inside the apartment, in a close and "constant" struggle. Salas

said that he cut and stabbed Lopez to fend off his attack.

      Salas testified that he knocked Lopez to the ground and saw that there

was blood coming from his neck. Salas said he knelt down and "applied

pressure" to stop the bleeding. He denied making any cutting motion. He

remembered Antonia pulling him off, at which point he left the apartment. He

spent a night in the woods before returning to his apartment.

      The court instructed the jury on first and second degree murder. Over the

State's objection that the evidence "clearly rises above manslaughter," the court

instructed the jury to consider the lesser included offenses of first and second

degree manslaughter if unable to agree on murder. The court also provided a

standard self-defense instruction (WPIC 16.02), an instruction defining "great

personal injury"(WPIC 2.04.01), an instruction that actual danger is not

necessary for a homicide to be justifiable(WPIC 16.07), and an instruction on the

meaning of "necessary" force (WPIC 16.05).

      The jury returned a verdict finding Salas guilty of second degree murder.

Salas had no prior convictions. With an offender score of zero, the standard

range for the sentence was 123 to 220 months. With the deadly weapon

enhancement, the presumptive sentence range was 147 to 244 months. The

court sentenced Salas to 244 months. Salas appeals from the judgment and

sentence.




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No. 74209-4-1/5


                        PROSECUTORIAL MISCONDUCT

       Salas contends he was denied a fair trial by several instances of

prosecutorial misconduct in argument. To prevail, he must show that in the

context of the record and all of the circumstances of trial, the prosecutor's

conduct was both improper and prejudicial. In re Pers. Restraint of Glasmann,

175 Wn.2d 696, 704, 286 P.3d 673(2012). Prejudice means a substantial

likelihood that the misconduct affected the jury verdict. Glasmann, 175 Wn.2d at

704. A defendant who does not object to the improper conduct at trial must

demonstrate on appeal that the error was so flagrant and ill-intentioned that an

instruction would not have cured the prejudice. Glasmann, 175 Wn.2d at 704.

1. "Cop-out"

       In closing, the prosecutor argued that if there was any issue for the jury to

consider, it was premeditation. She explained that she was not going to discuss

the manslaughter instructions because the evidence "makes it clear that this is

murder, not manslaughter." In rebuttal closing argument, she asserted that

convicting Salas of manslaughter "would be a cop-out."

       When there is evidence that the homicide was neither premeditated nor

intentional and the trial court has properly put the issue of manslaughter before

the jury, it is improper to argue that manslaughter is a "cop-our and

inapplicable. People v. Howard, 232 III. App. 3d 386, 390, 597 N.E.2d 703, 173

Ill. Dec. 729, appeal denied, 146 I11.2d 639 (1992). Here, the jury could have

reasonably concluded that Salas did not kill Lopez intentionally. The two were

close friends, and they both were drinking before they began to fight. But Salas




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No. 74209-4-1/6

did not object to this remark, and it was not incurably prejudicial. Reversal is not

warranted based on this comment alone.

2. Stab wounds

       Salas contends the prosecutor misrepresented the testimony about the

amount of blood and the number of lethal stab wounds. We disagree. The

record reflects that the prosecutor argued reasonable inferences from the

forensic evidence. And the trial court twice sustained defense objections.

3. PowerPoint slide show

       Salas raises a more serious concern with his challenge to part of the

PowerPoint presentation that accompanied the prosecutor's argument.

       Closing argument provides an opportunity for counsel to summarize and

highlight relevant evidence and argue reasonable inferences from the evidence.

Multimedia tools such as PowerPoint presentations offer an effective and

engaging method of communicating such information to the jury. State v.

Walker, 182 Wn.2d 463, 476-77, 341 P.3d 976, cert. denied, 135 S. Ct. 2844

(2015). But a prosecutor's freedom in using such tools is not without limits.

Prosecutors have a "duty to 'subdue courtroom zeal,' not to add to it, in order to

ensure the defendant receives a fair trial." Walker, 182 Wn.2d at 477, quoting

State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43(2011).

       The prosecutor began closing argument by summarizing the evidence of

intentional murder. Then she moved to the topic of self-defense:

              And Instruction No. 18 says that necessary means no
       reasonably effective alternative to the use of force appeared to
       exist. And two, the amount of force used was reasonable to effect
       the lawful purpose intended.



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No. 74209-4-1/7

              This is the only knife out on the balcony. Now, the
      defendant has it. The defendant could toss it over the edge, now,
      it's gone. We know that the defendant can take Jesse. He's a
      fighter, football player. There's no issue there. Jesse was a
      bandleader, saxophone player, he liked to exercise, but the
      defendant can take Jesse. You get rid of the knife, you get rid of
      the threat of any great bodily injury, any death. But instead,
      according to him, now, he has the knife. He says, oh, Jesse kept
      coming at me, so I had to punch and kick and hit him, basically,
      stab him 15 times.
              And Instruction No. 19, acting on appearances. The
      defendant doesn't even describe the appearance of danger, once
      he gets the knife back from Jesse. And according to him, that's
      when all of those injuries happened to Jesse, when he has the
      knife.

      At this point in the argument, the prosecutor began to display a 22-slide

PowerPoint presentation. The slide show had not been previously seen by the

defendant or the court.

      The first slide, shown below, is a photograph of Lopez at an amusement

park. He is crouched down, smiling, surrounded by three people dressed in

cartoon costumes. A caption above the photograph reads,"Jesse Lopez: 5'5.5",

Band leader, saxophone player, customer service representative." Juxtaposed

with this photograph is a grim image of Salas's face cropped from his driver's

license. It is captioned,"EJ Salas: 5'11", Football player, fighter, outdoorsman":


                               St. v. Encarnacion Salas IV
                                                        ass* opal: . , an• a.,,
                      U Sales: V117,Football player,   saxophone player,customer service
                      fighter,outdoorsman              representative




                                                       7
No. 74209-4-1/8

Repeating the words on the slide, the prosecutor continued:

              (Pause.) So this is what we have. Self-defense claim.
        There's no issue that he killed Jesse, that EJ Salas, 5'11", football
        player, fighter, apparently involved in fight club, outdoorsman. And
        you've got Jesse Lopez, 5'5-1/2', bandleader, saxophone player,
        and a customer-service representative.

The second slide, titled "Relationship," showed photographs of Salas and Lopez

together. The prosecutor argued,"They were in a relationship, they were,

clearly, a couple.... they spent a lot of time together. There's something going

on there."

        Defense counsel objected to the slide show after seeing the first two

slides. In a hearing outside the jury's presence, he objected "to all of these

slides, with text, on the screen," citing Glasmann and Walker. He particularly

objected to the first slide, calling it equivalent to the slide in Walker that

prejudicially juxtaposed images of the defendant and victim. See Walker, 182

Wn.2d at 478.

        The prosecutor responded that the slides were not inappropriate under

Glasmann and Walker. Unlike in those cases, she said, the information

contained in the slide show,"which is not altering the pictures, are facts that were

also testified to at trial."

       Both of those exhibits have been admitted at trial. If I held them up
       next to each other, and said what I wanted to say, it was no
       different, although less efficient by far, than already having them set
       up so that we don't have to dig through a bunch of exhibits, and pull
       things out. It's really just to assist in the efficiency of what would
       happen anyway. There's no personal opinion expressed, there was
       no comment on guilt or innocence.
              This case is about a self-defense claim, and certainly, the
       differences in their size, their athletic ability and their background in
       fighting is relevant to that issue. That has all come out at trial.



                                           8
No. 74209-4-1/9

       After reviewing the remaining slides, the court overruled the objection and

the prosecutor continued. Most of the remaining slides presented photographs of

the crime scene and injuries, some captioned with witness testimony. The

prosecutor used these slides to illustrate her argument that the physical

evidence, corroborated by Antonia's testimony, defeated Salas's claim of self-

defense and called for a verdict of intentional murder.

      The last slide displayed an uncaptioned photograph of Lopez enjoying a

Ferris wheel ride with Cristal. This photograph came into evidence as an exhibit

during the testimony of Salas's younger brother, who was asked by the

prosecutor to use it to identify Lopez.




The prosecutor did not refer to the last slide in argument. She ended by

narrating what Salas did between when he left the Lopez apartment and when he

was arrested by the police the next morning in his own apartment.

              And when the police come, he runs to his bedroom,
      hides the knife in the closet, and then says, what, what am I under
      arrest for? What? What are you doing here? He knows he killed
      Jesse. He knows why they're there. But he's a tough guy. He's
      not going to go down on his hands and knees, unless it's on his
      own terms. He is not afraid of a bunch of cops with guns and
      tasers. They tase him twice, and he doesn't go down. He's only
      surrendering on his own terms. But he wants you to believe that he
      was afraid of him, unarmed, 5'5"Jesse Lopez.




                                          9
No. 74209-4-1/10

       The defense closing argument emphasized the State's burden to disprove

self-defense. Counsel argued this burden had not been met and urged the jury

not to be swayed by the emotional impact of the slide show:

             What the State wants you to believe -- look at the pictures
      they just showed you. They want you to be emotional. They're
      showing you blood, they're showing you Jesus Lopez with a bunch
      of Smurf characters....
             The last picture, they left it up there for at least a minute. It's
      Jesus with Cristal Salas, who also came and testified. Well, he
      looks like a nice guy. I think that was, essentially, what you're
      supposed to take from that.. . .

              ... They have to disprove self-defense.... So the question
       is can they show, based on the actual testimony, not on maybes,
       not on pictures of him with Smurfs with the aunt, not on emotion,
       can they actually prove to you that he was not justified in doing this.

       Salas contends the trial court erred by overruling his objection to the

PowerPoint display. He objects in particular to the first slide.

       During closing argument in Glasmann, the prosecutor displayed a

PowerPoint presentation of more than 50 slides. In some,the word "GUILTY" in

red letters was superimposed over a booking photograph of Glassman in which

he was unkempt and bloody. Glasmann, 175 Wn.2d at 701-02. The prosecutor

in Walker made a similarly sensational presentation. More than 100 of the 150

slides were headed with the words"DEFENDANT WALKER GUILTY OF

PREMEDITATED MURDER." Walker, 182 Wn.2d at 468. Following Glasmann

and Walker, this court has reversed a number of convictions involving similar

PowerPoint presentations by prosecutors, including in State v. Hecht, 179 Wn.

App. 497, 319 P.3d 836 (2014), and State v. Fedoruk, 184 Wn. App. 866, 339

P.3d 233(2014), as well as in unpublished opinions.



                                         10
No. 74209-4-1/11

       The prosecutor in the present case did not make the mistake of

superimposing the word "guilty" over a photograph of the defendant or modifying

exhibits with superimposed text. The State defends the slides on the basis that

the photographs had all been admitted as exhibits and the captions contained

information elicited from the witnesses.

       But under Walker and Glasmann, the potential prejudice of a slide

presentation does not arise solely from the alteration of exhibits. The broader

proposition is that slide shows may not be used to inflame passion and prejudice.

In Walker, the slide show "appealed to passion and prejudice by juxtaposing

photographs of the victim with photographs of Walker and his family, some

altered with the addition of inflammatory captions and superimposed text."

Walker, 182 Wn.2d at 468.

       The first slide in the present case, though more subdued, has the same

flaw. The photograph of Lopez conveys that he was happy,fun-loving, and even

childlike. He appears small as he poses with a group of cartoon characters. The

photograph of Salas, on the other hand, shows only the unappealing image of his

face. It is similar to the booking photo in Walker,found problematic when shown

alongside a smiling picture of the victim. Walker, 182 Wn.2d at 474.

       It was not improper for the prosecutor to remind the jury that Salas was

taller than Lopez. Relative size, strength, and age of the individuals involved is

relevant in a self-defense case. See State v. Painter, 27 Wn. App. 708, 713, 620

P.2d 1001 (1980), review denied, 95 Wn.2d 1008(1981). But if the purpose of

the slide was to compare them in size, the photographs are not helpful. The




                                           11
No. 74209-4-1/12

photograph of Salas shows only his head. And the caption does not mention the

fact that the two men were roughly equivalent in weight.

       The captions reinforce the visual contrast. They evoke high school

stereotypes. Lopez was a musician, whereas Salas played football and was

once in a fight club. Which type of person was more likely to initiate a fight?

Salas was an outdoorsman, while Lopez was a customer service representative.

Which type of person was more likely to use a knife?

       A rule of thumb for using PowerPoint is "If you can't say it, don't display it."

Kyle C. Reeves, PowerPoint in Court: The Devil's Own Device, or A Potent

Prosecution Tool?, 48-DEC PROSECUTOR 26, 33(2014). PowerPoint slides

should not be used to communicate to the jury a covert message that would be

improper if spoken aloud. The juxtaposition of images and captions in the first

slide communicates what the prosecutor could not, and did not, argue aloud:

Salas was by nature an aggressive and intimidating person, and therefore had no

reason to fear Lopez, who by nature was childlike and submissive. The

prosecutor in effect used the slide to prove the character of the two men "in order

to show action in conformity therewith," improper under ER 404(b). See State v.

Everybodvtalksabout, 145 Wn.2d 456, 468, 39 P.3d 294 (2002).

       Salas also objects to the last slide, an uncaptioned photograph of Lopez

on a Ferris wheel resting his head on Cristal's shoulder. By itself, this slide was

not improper. "In-life" photographs are generally admissible despite their

potential for inflaming the jury. State v. Rice, 110 Wn.2d 577, 600, 757 P.2d 889

(1988), cert. denied, 491 U.S. 910(1989). The problem with the last slide is that



                                          12
No. 74209-4-1/13

it completes and reinforces the message the first slide was intended to convey:

Jesse Lopez was a sweet, deferential person, and it would have been out of

character for him to attack Salas with a knife.

       We conclude that the prosecutor committed misconduct by using the first

and last slides.

       Prosecutorial misconduct requires reversal only if the defendant

demonstrates prejudice. Glasmann, 175 Wn.2d at 704. The inquiry is not

whether there was sufficient evidence to convict. Rather, the question is whether

the prosecutor's comments deliberately appealed to the jury's passion and

prejudice and encouraged the jury to base the verdict on the improper argument

rather than on properly admitted evidence. Glasmann, 175 Wn.2d at 711.

       Visual arguments "'manipulate audiences by harnessing rapid

unconscious or emotional reasoning processes and by exploiting the fact that we

do not generally question the rapid conclusions we reach based on visually

presented information." Glasmann, 175 Wn.2d at 708, quoting Lucille A. Jewel,

Through a Glass Darkly: Using Brain and Visual Rhetoric to Gain a Professional

Perspective on Visual Advocacy, 19 S. CAL. INTERDISC. L.J. 237, 289 (2010).

People tend to believe what they see and will not "step back and critically

examine the conclusions they reach, unless they are explicitly motivated to do

so." Glasmann, 175 Wn.2d at 709, quoting Jewel, at 293. "Thus, the alacrity by

which we process and make decisions based on visual information conflicts with

a bedrock principle of our legal system—that reasoned deliberation is necessary

for a fair justice system." Glasmann, 175 Wn.2d at 709, quoting Jewel, at 293.



                                         13   .
No. 74209-4-1/14

The risk of swaying a jury through use of prejudicial imagery is perhaps highest

during closing argument, when jurors may be particularly aware of, and

susceptible to, the arguments presented. Glasmann, 175 Wn.2d at 707-08.

       The first slide and the last slide that reinforced it were among the jurors'

final impressions of the case. The first slide in particular was designed to

override the evidence that Salas killed Lopez either recklessly or out of a

reasonable fear for his own safety. It made the visual point that Salas was

dangerous, while Lopez was meek.

       PowerPoint slides can be improper and prejudicial even if they do not

number in the hundreds and do not shout "GUILTY GUILTY GUILTY!" in red

letters. We conclude there was a substantial likelihood that the visual

presentation prejudiced Salas's right to a trial in which his claim of self-defense

and the alternative of manslaughter could be fairly considered. He is entitled to a

new trial.

                   STATEMENTS TO MEDICAL PERSONNEL

       Salas is entitled to a new trial for an additional reason. Due to ineffective

assistance of counsel, the jury was allowed to hear an officer's testimony that

Salas "chuckled" when he admitted killing Lopez during his examination at the

hospital.

       Officers arrested Salas in his apartment the day after the killing. When

advised of his Mirandal rights, Salas requested an attorney. It was determined




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

                                         14
No. 74209-4-1/15

that he first needed treatment for a gash on his arm. A police officer took Salas

to the hospital and told the staff they were there for a medical clearance so that

Salas could be booked into jail. The officer handcuffed Salas's hand to a bed in

the examination room. He remained in the room while the nurse and doctor

tended to Salas.

       Salas moved to suppress the officer's testimony about what Salas said

during this examination, on the ground that the doctor and nurse were state

agents and the examination amounted to custodial interrogation. The trial court

denied the motion. At trial, the officer testified that the nurse asked Salas how

his arm was wounded. Salas answered, "I don't know, on barbed wire or a tree."

The doctor asked Salas if he had been assaulted. The officer testified that in

response, Salas "chuckled and he said—he said, no, I killed somebody." Salas

did not object.

       Because Salas had invoked his right to counsel, he should not have been

subjected to interrogation by state agents while he was at the hospital. Edwards

v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). In

his opening brief on appeal, Salas argues that his statements to the hospital

personnel were obtained in violation of Miranda because the doctor and nurse

were state agents. This claim presents an issue of law which we review de novo.

State v. Daniels, 160 Wn.2d 256, 261, 156 P.3d 905 (2007). The test is

objective—what a reasonable person in the defendant's position would have

believed. State v. Heritage, 152 Wn.2d 210, 217, 95 P.3d 345 (2004).




                                        15
No. 74209-4-1/16


       The record does not demonstrate that the doctor and nurse were state

agents. The hospital was private. There was no indication that the nurse or

doctor were connected to the state or were authorized to exercise the state's

authority over Salas. There is no evidence that the officer who was standing by

directed or otherwise influenced the nurse or doctor in their verbal interaction

with Salas. The only purpose of the questions they asked Salas was to facilitate

treatment of his injury.

       Cases from other jurisdictions hold that when medical professionals

question a suspect "solely for the purpose of providing treatment," Miranda

protections do not apply. U.S. v. Borchardt, 809 F.2d 1115, 1118 (5th Cir. 1987),

citing Commonwealth v. Allen, 395 Mass. 448, 480 N.E.2d 630 (1985); State v.

Jones, 386 So. 2d 1363, 1366(La. 1980); State v. Hall, 183 Mont. 511,600 P.2d

1180, 1182(1979); People v. Hagen,269 Cal. App. 2d 175, 74 Cal. Rptr. 675

(1969). The mere presence of a police officer during a medical examination does

not compel a different result. See e.g., Allen, 395 Mass. at 454.

       We conclude the doctor and nurse did not act as state agents. There was

no Miranda violation. The trial court did not err in denying the motion to suppress

on the grounds argued below and in Salas's opening brief on appeal.

       In a supplemental brief, Salas contends that admission of his statements

to the doctor and nurse violated his statutory right to patient confidentiality. Salas

did not raise this issue in his motion to suppress. He argues that trial counsel's

failure to argue for suppression based on patient confidentiality amounts to

ineffective assistance. A claim of ineffective assistance of counsel is an issue of




                                         16
No. 74209-4-1/17


constitutional magnitude that may be considered for the first time on appeal.

State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177(2009).

       A party claiming ineffective assistance must show that counsel's

performance was deficient and prejudicial. State v. McFarland, 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). Performance is deficient when it falls below an

objective standard of reasonableness based on all of the circumstances.

McFarland, 127 Wn.2d at 334. The defendant must show there was no

legitimate strategic or tactical reason for counsel's actions. McFarland, 127

Wn.2d at 335.

       The physician-patient privilege protects statements made by a patient in

the course of treatment. RCW 5.60.040(4). "Actual treatment is not necessary;

the only requirement for the relationship to arise by implication is that the patient

believe the examination is being made for the purpose of treatment." State v.

Gibson, 3 Wn. App. 596, 598,476 P.2d 727(1970), review denied, 78 Wn.2d

996 (1971). This may be inferred from the circumstances without formal proof.

Gibson,3 Wn. App. at 598.

       The general rule is that the presence of a third party vitiates the privilege.

Gibson,3 Wn. App. at 598. There is an exception to the general rule if the third

party is present as a "'needed and customary participant" in the treatment

consultation. Gibson,3 Wn. App. at 599, quoting C. McCormick, LAW OF

EVIDENCE § 104(1954). In other words,"physician" includes "agents of the

physician" who are present during the consultation. Gibson,3 Wn. App. at 599.

A police officer "may be deemed to be an agent of the physician, present for the




                                         17
No. 74209-4-1/18

physician's protection as well as the detention of the prisoner." Gibson, 3 Wn.

App. at 600. The privilege applies in criminal proceedings by virtue of RCW

10.58.010, Gibson, 3 Wn. App. at 598, and so does the nurse-patient privilege.

RCW 5.62.020.

       On this record, Salas's statements to the medical personnel were

privileged. Salas was in the hospital to receive treatment for his injuries so he

could be booked into jail. The doctor and nurse questioned him about how he

sustained his arm wound. The only reasonable inference is that Salas believed

the questions were being asked for the purpose of treatment. The police officer's

presence during the examination did not destroy the privilege. The officer

testified that he stayed in the examination room because Salas "was in custody

and for security reasons; to maintain security on him." Because the officer was

present for security purposes, he was an agent of the doctor and nurse. Gibson,

3 Wn. App. at 600.

       There is no apparent strategic or tactical reason why counsel would

decide against asserting Salas's right to patient confidentiality as a basis for

suppression of his statements. "Reasonable conduct for an attorney includes

carrying out the duty to research the relevant law." Kyllo, 166 Wn.2d at 862.

If counsel had discovered Gibson and presented it to the trial court, the court

likely would have granted the motion to suppress. Failing to cite Gibson was

objectively unreasonable.

       To establish prejudice, Salas must show a reasonable probability that but

for counsel's deficient performance, the outcome of the proceedings would have




                                         18
No. 74209-4-1/19

been different. Kyllo, 166 Wn.2d at 862. Salas argues that if the trial court had

suppressed the statements, there is a reasonable probability that the jury would

have either acquitted him or convicted him of manslaughter rather than murder.

       The question for the jury was whether Salas acted intentionally, recklessly,

or justifiably in causing Lopez's death. Even if the jury did not find self-defense,

manslaughter was an option. Thus, Salas's mental state at the time of the

offense was critically important. The jury's resolution of this issue depended in

large part on how jurors evaluated Salas's credibility. Both men had been

drinking heavily. Salas testified that he and Lopez were enjoying each other's

company until Lopez grabbed at his genitals. Salas testified that he told Lopez, "I

was uncomfortable, I was not ready for that step in the relationship," but Lopez

persisted. Salas said he yelled at Lopez and at that point, Lopez hit him with the

knife. Salas said he got the knife away from Lopez and kept it away from him

during a chaotic struggle. Asked whether he thought Lopez was going to kill him,

Salas said, "If he got ahold of that knife, I believe he would have."

       Antonia's testimony was at odds with several aspects of Salas's narrative,

most importantly when she said it appeared to her that Salas was cutting on

Lopez's neck "really bad" when Lopez was already down on the floor. The

physical evidence did not resolve that issue. The jury had to determine whether

Antonia or Salas was the more credible witness.

       It is reasonably likely that admission of Salas's statements to medical

personnel influenced their finding that his stabbing of Lopez was intentional

murder. Testimony that Salas "chuckled" when he told the doctor that he "killed



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someone" made him seem callous. His statement to the nurse that he cut his

arm on "barbed wire or a tree" conflicted with his trial testimony that he sustained

the injury during his fight with Lopez and likely diminished his credibility.

Because the State had to disprove self-defense beyond a reasonable doubt and

Salas's version of events was not inherently inconsistent with the physical

evidence, we conclude there is a reasonable probability that the outcome of the

proceeding would have been different had the court suppressed his statements

to medical personne1.2

       Reversal is also warranted under the cumulative error doctrine. This

doctrine applies when a combination of trial errors denies the accused a fair trial,

even when any one of the errors taken individually would be harmless. In re

Pers. Restraint of Cross, 180 Wn.2d 664, 678, 327 P.3d 660(2014). "There is

no prejudicial error under the cumulative error rule if the evidence is

overwhelming against a defendant." Cross, 180 Wn.2d at 691.

       The evidence against Salas was not overwhelming. He was denied a fair

trial by the combination of the improper use of photographs in the PowerPoint

presentation and trial counsel's deficient performance in the motion to suppress.

                       SCOPE OF CROSS-EXAMINATION

       One of the State's witnesses, a man who knew Lopez from work and

socially, testified that Lopez was "a social person," "Friendly, supportive. Just

liked to have a good time." When asked if he considered Lopez "flirty," the

witness responded,"Yes." Salas argued that this response opened the door to



       2 On   remand, the trial court may hear the suppression motion anew.

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cross-examination of the witness about a time when Lopez allegedly acted in a

"sexually aggressive" manner while intoxicated. Salas contends the court erred

by barring cross-examination on this topic. We find no abuse of discretion. The

witness had no firsthand knowledge of the incident.

                   STATEMENT OF ADDITIONAL GROUNDS

       We have considered a statement of additional grounds for review filed by

Salas as permitted by RAP 10.10. They do not provide sufficient information to

warrant discussion. An appellate court "will not consider a defendant's statement

of additional grounds for review if it does not inform the court of the nature and

occurrence of alleged errors." RAP 10.10(c).

       Reversed and remanded for a new trial.




WE CONCUR:




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