IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 84204-8-I
Respondent/Cross-Appellant, DIVISION ONE
v. UNPUBLISHED OPINION JOSE LEONARDO COLINDRES,
Appellant/Cross-Respondent.
SMITH, C.J. — Jose “Leo” Colindres was charged with two counts of rape
of a child in the first degree. He was convicted only on the first charge. On
appeal, Colindres contends that the trial court erred by, (1) denying his motion for
mistrial based on prosecutorial misconduct, (2) imposing both a victim penalty
assessment and DNA collection fee, and (3) imposing community custody
conditions that are not sufficiently related to his offense. Colindres also asserts
that his counsel was ineffective for failing to request a limiting instruction
following the use of impeachment evidence. He argues that an in camera review
is necessary to determine if the trial court properly released all discoverable
material to the defense, and finally, he asserts cumulative error. Finding no error
concerning his conviction, we affirm but remand for the court to strike the victim
penalty assessment, DNA collection fee, and community custody conditions.
FACTS
Charlene Caceres and Edwin Hernandez met and began dating when they
were 19 and 16 years old, respectively. They had four children together: two No. 84204-8-I/2
daughters (N.C., A.C.), and two sons. N.C. is the oldest of those children; A.C. is
the second oldest. Jose “Leo” Colindres is Caceres’ brother and N.C.’s uncle.
Caceres and Hernandez briefly married but separated only a few weeks
later. Following the separation, Caceres moved to California with the children
and Hernandez stayed in Washington to work.
The living situation in California was crowded, and the four children shared
one bed in their mother’s room. Hernandez visited frequently. Caceres
eventually agreed that the children could live with Hernandez for the summer.
Colindres volunteered to chaperone the children on a Greyhound bus from
California to Washington. N.C. was 10 years old when she moved to her father’s
home in Auburn. A.C. was eight years old.
In Hernandez’s home, the children shared a room but each had their own
bed. The girls shared bunkbeds and the boys each had a toddler “car bed.”
Colindres slept on the couch. By the end of the summer, the children did not
want to return to California. It was ultimately decided that they would stay with
Hernandez in Washington. Colindres volunteered to stay in Washington as well,
offering to babysit the children while Hernandez worked. Hernandez left for work
early, leaving Colindres in charge of getting the children ready for school and
picking them up in the afternoon. As a result, Colindres was alone with N.C. for
several hours most days.
N.C. testified that Colindres raped her four times while she lived in
Washington. One incident occurred in her bedroom after Hernandez had left for
work. She testified that Colindres woke her two younger brothers and moved
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them to a different room before shutting the door, pulling N.C.’s pants down, and
vaginally raping her. The motion roused A.C., who complained about the noise
before falling back to sleep. After the rape, Colindres brought the two boys back
to bed.
N.C. recalled another assault that took place in the afternoon. N.C. was
alone with Colindres in the dining room while her siblings were upstairs.
Colindres “made [N.C.] pull down [her] pants” and played a video on his phone,
depicting “something a fourth grader shouldn’t see.” N.C. could not recall exactly
what he showed her. Colindres then vaginally raped her. When he stopped,
Colindres told N.C. to dress herself and went to the bathroom.
N.C.’s younger sister, A.C., testified that Colindres entered their bedroom
on several occasions and made the boys leave. She described one occasion
where Colindres climbed into N.C.’s bunk. She observed that Colindres’s
clothing was “halfway on” and his body was “moving up and down . . . on top of
[N.C.].”
In October 2018, Hernandez’s ex-girlfriend Kristina Nagle came over for
dinner with her daughter, C.G. C.G. was treated “like another sister” by the
family and was about two years older than N.C. During this visit, A.C. told C.G.
about Colindres’s abuse. C.G. told her mother, who then told Hernandez.
Hernandez spoke with his daughters in private, and N.C. confirmed that
Colindres had raped her.
Hernandez confronted Colindres with N.C.’s allegations, at which point
both N.C. and Hernandez testified that Colindres began crying and said he “was
3 No. 84204-8-I/4
sorry that it happened.” Hernandez immediately kicked Colindres out of the
house and sent him back to California the next day. Hernandez did not initially
report the abuse, concerned that CPS might remove the children, but contacted
law enforcement several days later. Colindres was charged with two counts of
first degree rape of a child.1
Colindres testified at trial. He acknowledged taking care of the children
but categorially denied any sexual abuse. He also denied apologizing. He
claimed that he was shocked and angry at the accusation; he also stated that he
repeatedly told Hernandez to call law enforcement if Hernandez really believed
N.C.
Caceres also testified. She understood the rape allegation but did not
know any specifics. During cross-examination, the prosecutor asked Caceres
about her experience being raped as a child. Caceres became visibly upset at
these questions. The prosecutor also asked Caceres a number of questions
about whether she was present while Colindres was babysitting, noting her lack
of presence in the Washington home. At the end of questioning, the prosecutor
stated that she was not there when Colindres assaulted her daughter. At that
point, Caceres began crying.
The jury convicted Colindres on the first count of rape of a child, but
acquitted him on the second. The court imposed a standard range indeterminate
1 The incident in the bedroom was charged as count one. The incident in the dining room was charged as count two. At trial, N.C. also testified to a third incident where Colindres woke her up and instructed her to undress. She refused, and as punishment for disobeying, Colindres forced her to sleep on the floor. This was not separately charged.
4 No. 84204-8-I/5
sentence of 120 months to life in prison and lifetime community custody.
Colindres appeals.
ANALYSIS
Motion for Mistrial
Colindres contends that the prosecutor committed misconduct by asking
Caceres questions about being raped and that the trial court erred in failing to
grant a mistrial based on that misconduct. We conclude that Colindres fails to
establish that the prosecutor’s conduct resulted in prejudice and thus, that the
court did not err in denying the mistrial.
“The decision to deny a request for mistrial based on alleged prosecutorial
misconduct lies within the sound discretion of the trial court, and it will not be
disturbed absent an abuse of discretion.” State v. Russell, 125 Wn.2d 24, 86,
882 P.2d 747 (1994). A trial court abuses its discretion in denying of a motion for
mistrial if “ ‘no reasonable judge would have reached the same conclusion.’ ”
State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (internal quotation
marks omitted) (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014
(1989)). A mistrial is appropriate “ ‘only when the defendant has been so
prejudiced that nothing short of a new trial can insure that the defendant will be
tried fairly. ” State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002)
(quoting State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)). The trial court
is in the best position to determine prejudice. State v. Garcia, 177 Wn. App. 769,
777, 313 P.3d 422 (2013).
Here, Colindres argues that prosecutorial misconduct entitles him to a
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mistrial. If a defendant objects to the conduct at trial, to show prosecutorial
misconduct he must establish that the prosecutor’s conduct was both improper
and prejudicial in the context of the entire record and the circumstances at trial.
State v. Koeller, 15 Wn. App. 2d 245, 260, 477 P.3d 61 (2020). Conduct is
prejudicial if the defendant can show a substantial likelihood that the error
affected the jury verdict. State v. Molina, 16 Wn. App. 2d 908, 968, 485 P.3d 963
(2021).
In general, “ ‘when a party opens up a subject of inquiry on direct or cross-
examination, [they] contemplate[] that the rules will permit cross-examination or
redirect examination, as the case may be, within the scope of the examination in
which the subject matter was first introduced.’ ” State v. Rushworth, 12 Wn. App.
2d 466, 473, 458 P.3d 1192 (2020) (emphasis omitted) (quoting State v. Gefeller,
76 Wn.2d 449, 455, 458 P.2d 17 (1969)). Therefore, such questioning is
appropriate behavior. Rushworth, 12 Wn. App. 2d at 473. Conduct is not
improper if a defendant cannot establish that conduct is unreasonable or
inappropriate. Koeller, 15 Wn. App. 2d at 263. In contrast, conduct is improper if
it appeals to the passions or prejudices of the jury, intending to incite anger or
desire for revenge. State v. Elledge, 144 Wn.2d 62, 85, 26 P.3d 271 (2001).
Colindres alleges that the prosecutor committed misconduct by (1) asking
Caceres a number of questions about her own assault as a child, and
(2) repeatedly asking Caceres about being out-of-state while Colindres assaulted
N.C. Colindres objected to both lines of questioning at trial.
The first instance was not improper conduct. Defense counsel introduced
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the subject of Caceres’s rape on direct examination. In an attempt to explain that
N.C. understood the mechanics of sex from her mother’s explanation, rather than
personal experience, defense counsel elicited testimony that Caceres taught the
girls about inappropriate touching as a response to her own assault. Defense
counsel finished his direct examination on that topic. On cross-examination, the
State followed up with questions about how Caceres’s experience with sexual
assault was the reason she talked to the girls about what to do if anyone touched
them inappropriately. Because defense counsel first asked Caceres about this
topic, the prosecutor’s questions were within the scope of the subject matter as
introduced and these questions did not constitute improper conduct.
As to the second instance, the conduct was improper and inappropriate,
which the State concedes. The State acknowledges that the prosecutor’s
repeated questions about Caceres’s absence were cumulative and unnecessarily
provocative. The questions brought Caceres to tears and appear aimed at
eliciting an emotional response from the jury. Because this line of questioning
attempted to play on the passions and prejudices of the jury, it was inappropriate
and constituted improper conduct. Colindres has established that the
prosecutor’s conduct was improper.
Although the questioning was improper, Colindres fails to establish
prejudice. The questions that the prosecutor asked of Caceres were centered
around the alleged assault in the dining room and the fact that she was out of the
state when it happened. Colindres was acquitted on that charge. And while he
alleges prejudice, Colindres received a favorable verdict on that charge.
7 No. 84204-8-I/8
Colindres cannot show that the outcome of the trial court would have been
different absent the improper conduct.
Because Colindres was not prejudiced by the prosecutor’s misconduct,
the trial court did not abuse its discretion in denying a mistrial. Apart from his
claim of prosecutorial misconduct, Colindres does not provide any other basis to
support the motion for mistrial.
Comment on Pre-Arrest Silence
Colindres asserts that the prosecutor impermissibly commented on
Colindres’s exercise of his constitutionally protected right to pre-arrest silence
and used it as substantive evidence of his guilt. As Colindres failed to raise this
issue below, we decline to reach it.
1. Waiver
In general, we do not consider issues raised for the first time on appeal.
RAP 2.5(a). And if an objection on one specific ground is overruled at trial, a
party may not rest that objection upon a new ground on appeal. State v. Koepke,
47 Wn. App. 897, 911, 738 P.2d 295 (1987); State v. Pappas, 195 Wash. 197,
200-201, 80 P.2d 770 (1938).
At trial, Colindres objected to the prosecutor’s statement that
“Mr. Colindres himself never called the cops even though he said they should
have been called” based on burden shifting. The court overruled Colindres’s
objection. On appeal, Colindres argues that this same statement was a violation
of his Fifth Amendment right to silence. He asserts that “the objection was meant
to convey that Colindres has no burden to come forward to speak with the police,
8 No. 84204-8-I/9
which implicates the right to remain silent.” Relying on State v. Braham, 67 Wn.
App. 930, 935, 841 P.2d 785 (1992), Colindres asserts that a claim is preserved
for review if the specific ground for the objection is apparent from the context.
But Braham is distinguishable.
In Braham, the defendant broadly objected to testimony as irrelevant. 67
Wn. App. at 935. Then, on appeal, the defendant argued that the probative value
of the evidence was outweighed by its unfairly prejudicial impact. Id. The court
held that the specific objection argued on appeal could be inferred from the
context of the broader objection below. Id.
In contrast, here, Colindres argues a different basis for the objection on
appeal than he did before the trial court. Before the trial court, Colindres
objected based on burden shifting. On appeal, he contends the objection
referenced his right to remain silent. These are entirely different objections. The
prohibition on burden shifting stems from the Fourteenth Amendment rather than
the Fifth Amendment. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 713,
286 P.3d 673 (2012) (shifting burden of proof to the defendant is improper under
Fourteenth Amendment); Patterson v. New York, 432 U.S. 197, 215, 97 S. Ct.
2319, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977) (“shifting of the burden of
persuasion . . . is impermissible under the Due Process Clause” of the
Fourteenth Amendment). The latter cannot be inferred from the former.
Because Colindres raised a different objection before the trial court, he cannot
now raise an alternative basis for the objection on appeal.
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2. Manifest Constitutional Error
In the alternative, Colindres asserts that he may raise this issue for the
first time on appeal because it is a manifest constitutional error. We disagree.
“[M]anifest errors affecting a constitutional right may be raised for the first
time on appeal.” State v. A.M., 194 Wn.2d 33, 38, 448 P.3d 35 (2016); RAP
2.5(a)(3). To establish manifest constitutional error, the defendant has the
burden of showing that (1) the error was “truly of constitutional dimension” and
(2) the error was “manifest.” If correct, an error is of constitutional dimension if “it
implicates a constitutional interest as compared to another form of trial error.”
State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). We do not presume an
alleged error is of constitutional magnitude. O’Hara, 167 Wn.2d at 98. An error
is manifest if there is a “ ‘plausible showing by the [appellant] that the asserted
error had practical and identifiable consequences in the trial of the case.’ ” A.M.,
194 Wn.2d at 38 (quoting O’Hara, 167 Wn.2d at 99). A defendant may establish
that an error has practical and identifiable consequence at trial if otherwise
inaccessible evidence is admitted over the objection of counsel. A.M., 194
Wn.2d at 39.
As to the first prong, Colindres fails to show that the error was truly
constitutional. Typically, a claim that someone impermissibly commented on
prearrest silence would rise to a constitutional level. A.M., 194 Wn.2d at 39;
State v. Curtis, 110 Wn. App. 6, 11, 13, 37 P.3d 1274 (2002). “The right against
self-incrimination is liberally construed.” State v. Easter, 130 Wn.2d 228, 236,
922 P.2d 1285 (1996). It might take the form of refusing to answer the police pre
10 No. 84204-8-I/11
or post-Miranda,2 or simply not engaging prior to arrest. State v. Lewis, 130
Wn.2d 700, 705, 927 P.2d 235 (1996); Easter, 130 Wn.2d at 236; A.M., 194
Wn.2d at 39. And the right against self-incrimination is clearly of truly
constitutional dimension.
In this case, however, the police were not involved. In fact, there was no
investigation until days later. The conversation about calling the police occurred
when Colindres was speaking with his former brother-in-law, in response to N.C.
and A.C.’s accusation. To consider Colindres’s choice not to call the police pre-
arrest silence would be to stretch pre-arrest silence past its logical point, even
before a report has been made to the police or the initiation of an investigation.
We do not do so. Because the statement does not implicate Colindres’s Fifth
Amendment right, the error is not one of truly constitutional dimension.
Colindres also fails to satisfy the second prong because he does not
demonstrate how the statement affected his rights at trial. Defense counsel, not
the State, introduced the fact that Colindres told Hernandez to call the police.
Colindres himself testified that “[he] told [Hernandez] to call the cops more than
once.” Defense counsel revisited the topic a while later, asking Colindres about
denying the rape allegations. Colindres responded, “I kept telling them to call the
cops if that’s what [Hernandez] believed—call the cops.” In using this statement
as a measure of credibility, defense counsel put at issue whether the statement
supported a determination that Colindres was credible. The prosecution simply
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966)
11 No. 84204-8-I/12
presented a different perspective on evidence already in the record. Here, the
evidence was not otherwise inaccessible. Defense counsel had already
presented evidence to the jury that Colindres had repeatedly told Hernandez to
call the police. The jury also heard that law enforcement was not informed until
five days later, when Hernandez reported the incident. The jury could have
easily made the connection that Colindres did not call the police. Colindres
cannot establish that the prosecutor’s passing reference to the idea that
Colindres could have called the police himself had any practical and identifiable
consequence at trial. Therefore, the prosecutor’s comment did not constitute
manifest constitutional error warranting review.
Ineffective Assistance of Counsel
Colindres argues that his counsel was ineffective in failing to request a
limiting instruction following the use of impeachment evidence. We conclude that
defense counsel was deficient in failing to request the instruction but that
Colindres again failed to demonstrate prejudice.
We review ineffective assistance of counsel claims de novo. State v.
Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). The Sixth Amendment to the
United States Constitution and article I, section 22 of the Washington State
Constitution guarantee the right to effective assistance of counsel. Estes, 188
Wn.2d at 457. To prevail on an ineffective assistance claim, the defendant must
establish that (1) counsel’s performance was deficient, and (2) that deficiency
resulted in prejudice. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
Performance is deficient if it falls “below an objective standard of reasonableness
12 No. 84204-8-I/13
based on consideration of all the circumstances.” State v. McFarland, 127
Wn.2d 322, 334-35, 899 P.2d 1251 (1995). To show prejudice, the appellant
must show a “ ‘reasonable probability’ ” that but for the deficient performance, the
outcome of the proceedings would have been different. State v. Jones, 183
Wn.2d 327, 339, 352 P.3d 776 (2015) (quoting Strickland v. Washington, 466
U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). “The admission of
evidence which is merely cumulative is not prejudicial error.” State v. Todd, 78
Wn.2d 362, 372, 474 P.2d 542 (1970). There is a strong presumption that
representation was effective. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260
(2011). And “[w]hen counsel’s conduct can be characterized as legitimate trial
strategy or tactics, performance is not deficient.” Kyllo, 166 Wn.2d at 863.
Colindres contends that counsel’s performance was deficient in failing to
request a limiting instruction after the prosecution used a prior inconsistent
statement to impeach A.C. On direct examination, A.C. testified that she had
seen her uncle’s body moving up and down on N.C., but nothing more. Before
trial, in an interview with a Child Forensic Investigator, A.C. voiced that she had
seen her uncle remove clothing and “do his middle part in [N.C.’s] butt.” When
asked about the earlier interview at trial, A.C. could not remember what she had
told the investigator. As a result, the prosecution introduced statements from the
interview to impeach A.C. by prior inconsistent statement. Defense counsel did
not request a curative instruction.
Failing to request a limiting instruction can be a strategic decision. Here,
however, because the prior statement addressed a factual issue central to the
13 No. 84204-8-I/14
outcome of the case, defense counsel should have requested a limiting
instruction so that the jury did not consider the statements as substantive
evidence of guilt. Without a limiting instruction, the jury was free to use that
statement as substantive evidence of guilt. There was no legitimate reason in
this case for defense counsel not to request the instruction. Counsel fell below
an objective standard of reasonableness.
Although counsel’s performance was deficient, Colindres fails to
demonstrate that deficiency caused prejudice. Colindres argues that the State
relied on this evidence to establish penetration, a necessary element of the rape
of a child charge, and that other testimony was insufficient to meet this element.
But A.C.’s testimony was not the only evidence of penetration. N.C. also testified
that Colindres vaginally raped her. And N.C.’s physical examination showed
evidence of penetration. Even if the jury relied on A.C.’s interview as substantive
evidence of guilt, such evidence was cumulative. There was sufficient evidence
without the interview statements for the jury to find the element of penetration
beyond a reasonable doubt. As a result, Colindres cannot establish that the lack
of limiting instruction affected the outcome of trial. Colindres does not establish
prejudice and therefore, counsel was not ineffective.
Victim Penalty Assessment and DNA Fee
Colindres contends that the victim penalty assessment (VPA) should be
stricken because he is indigent. He also asserts that the DNA3 collection fee
should be stricken. We remand for the court to strike the VPA and DNA
3 Deoxyribonucleic acid.
14 No. 84204-8-I/15
collection fees from the judgment and sentence.
In July 2023, the legislature amended RCW 7.68.035 to prohibit the
imposition of a victim penalty assessment if the court finds a defendant indigent
at the time of sentencing. The legislature also eliminated DNA collection fees.
Recently amended RCW 43.43.7541 provides that the court shall waive any DNA
collection fee previously imposed upon a motion by the defendant. These
amendments apply retroactively in this case because Colindres’s appeal was
pending when the amendments took effect. State v. Ellis, 27 Wn. App. 2d 1, 15,
530 P.3d 1048 (2023).
Here, neither party disputes that Colindres was indigent at sentencing4
and that the VPA should be stricken. Likewise, although the statute technically
requires Colindres to move for the court to strike the DNA fee, neither party
disputes that the fee should be stricken.
We remand for the court to strike both the VPA and the DNA collection
fee.
Community Custody Provisions for Drugs and Alcohol
Colindres asserts that the community custody requirement that he be
available for drug and alcohol testing at the request of his community corrections
officer (CCO) or treatment provider unconstitutionally invades his right to privacy.
His conviction did not involve drug or alcohol use. We remand to strike the
community custody conditions about drug and alcohol use.
4 The trial court did not explicitly make a finding that Colindres was indigent at sentencing, it only noted that it would waive all non-mandatory fees.
15 No. 84204-8-I/16
Constitutional challenges to community custody may be raised for the first
time on appeal. State v. Reedy, 26 Wn. App. 2d 379, 395, 527 P.3d 156, review
denied, 1 Wn.3d 1029, 534 P.3d 798 (2023).
Generally, sentencing courts may impose and enforce crime-related
prohibitions and affirmative conduct as a condition of community custody. State
v. Martinez Platero, 17 Wn. App. 2d 716, 725-26, 487 P.3d 910 (2021). That
said, there must be “a reasonable relationship between the condition and the
defendant’s behavior.” Martinez Platero, 17 Wn. App. 2d at 726.
Here, the State concedes that there was no evidence at trial that alcohol
or drug use contributed to Colindres’s offense and therefore, that the community
custody conditions related to drug and alcohol use are unsupported. We remand
for the court to strike the community custody conditions concerning drug and
alcohol use.
In Camera Review
Colindres contends that this court should independently review documents
that the trial court denied to compel production of to determine whether the court
appropriately barred his access. Following an in camera review, we conclude
that the trial court appropriately denied Colindres’s motion to compel production.
“A defendant is entitled to appellate review of [an] in camera hearing.”
State v. Casal, 103 Wn.2d 812, 822-23, 699 P.2d 1234 (1985). Therefore, we
performed an in camera review. Following that review, we conclude that the trial
court appropriately denied Colindres’s motion to compel production and that he
was not inappropriately barred from accessing the documents at issue.
16 No. 84204-8-I/17
“It is within the trial court’s discretion to deny a motion to compel discovery
and we will not disrupt the ruling absent an abuse of discretion.” State v.
Johnson & Johnson, 27 Wn. App. 2d 646, 212, 536 P.3d 204 (2023), review
denied, 2 Wn.3d 1019 (2024). A trial court abuses its discretion if its decision is
manifestly unreasonable or exercised on untenable grounds or for untenable
reasons. State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007).
Generally, “[p]arties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject involved in the pending action.”
CR 26(b)(1). Evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” ER 401.
Evidence may be privileged under both attorney-client privilege and the work
product doctrine. Attorney-client privilege applies to communications and advice
between an attorney and client and extends to documents that contain privileged
communications. Soter v. Cowles Pub. Co., 162 Wn.2d 716, 745, 174 P.3d 60
(2007). Similarly, the work product doctrine protects documents and tangible
things prepared in anticipation of litigation or for trial. CR 26(b)(4). Work product
documents do not need to be prepared personally by counsel; they are privileged
as long as they are prepared by or for the party in anticipation of litigation.
Doehne v. EmpRes Healthcare Mgmt., LLC, 190 Wn. App. 274, 283-84, 360
P.3d 34 (2015).
Here, the trial court first concluded that the documents at issue were not
relevant, stating “[n]o portion of the documents reviewed by this court appears to
17 No. 84204-8-I/18
pertain to the defendant’s case or to his alleged victim.” This was not an abuse
of the trial court’s discretion. As the documents do not address the defendant,
the victim, or any facts relating to the case at hand, they do not serve to make
the existence of any related fact more or less probable.
The trial court also concluded that the documents at issue were protected
both by attorney-client privilege and the work product doctrine. The trial court did
not abuse its discretion in concluding as such. The documents are privileged
under attorney-client privilege because they were prepared at the request of
general counsel to assist a health care provider in determining potential
corporate liability in an unrelated case. The documents also constitute work
product because they were prepared, at the direction of counsel, in anticipation
of litigation. The fact that Colindres was not the intended opponent in that
anticipated litigation does not mean that the documents are not work product.
The trial court appropriately denied Colindres’s motion to compel
production as the material was not relevant and was privileged. Colindres was
appropriately barred from accessing the documents at issue.
Cumulative Error
Colindres lastly argues that, even if a single error alone is not enough to
warrant reversal, the combined effects of many errors denied him a fair trial
under the cumulative error doctrine. We disagree.
The cumulative error doctrine applies when “several trial errors that
standing alone may not be sufficient to justify reversal but when combined may
deny a defendant a fair trial.” State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390
18 No. 84204-8-I/19
(2000). “The test to determine whether cumulative errors require reversal of a
defendant’s conviction is whether the totality of the circumstances substantially
prejudiced the defendant and denied him a fair trial.” In re Pers. Restraint of
Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014) (abrogated on other grounds
by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018)). The defendant bears
the burden of proving cumulative error. In re Pers. Restraint of Lord, 123 Wn.2d
296, 332, 868 P.2d 835 (1994).
Here, there are only two established trial errors. The first is the
prosecutor’s inappropriate behavior in cross-examining Caceres. The second is
defense counsel’s failure to request a limiting instruction. As discussed, neither
error resulted in prejudice. Because reversal under the cumulative error doctrine
requires circumstances that substantially prejudiced the defendant and Colindres
has failed to show prejudice, reversal is not warranted.
We affirm Colindres’s convictions but remand for the court to strike the
victim penalty assessment, DNA collection fee, and community custody
conditions.
WE CONCUR: