                                                                    FILED
                                                                   MAY 8, 2018
                                                          In the Office of the Clerk of Court
                                                         WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                           )        No. 35215-3-III
                                               )
                     Respondent,               )
                                               )
              v.                               )        UNPUBLISHED OPINION
                                               )
GIOVANNI S. KINSEY,                            )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, C.J. — Giovanni S. Kinsey appeals his conviction for

violation of a no-contact order. He argues the trial judge violated his constitutional right

to a fair trial when, in the jury’s presence, he said he wanted the trial over with. Kinsey

also argues he received ineffective assistance of counsel when counsel purportedly

admitted Kinsey was guilty. We disagree and affirm.

                                          FACTS

       In August 2016, a no-contact order was in place prohibiting Kinsey from having

contact with his former girlfriend, Shannon Duran. In the early morning hours of

August 20, 2016, Duran drove to a gas station in a red Ford that did not belong to her.

Kinsey was present at the gas station that night. He was familiar with the red Ford and
No. 35215-3-III
State v. Kinsey


knew who it belonged to. The dark-tinted windows made it improbable that he could see

the driver.

       Kinsey walked up to the red Ford, and when Duran began to back out of the

parking space, Kinsey grabbed the rear spoiler and would not let go.

       Two law enforcement officers, Joshua Riley and Keith Schwartz, were parked

across the street. They heard Duran scream, and both saw Kinsey run to the passenger

door and jump inside. The officers immediately activated their emergency equipment and

drove toward the red Ford. Kinsey immediately jumped out of the car and took off

running. Duran drove away. The officers subdued Kinsey.

       Officer James Scott received a report of the red Ford over his radio. He saw a car

that matched the red Ford’s description and stopped it. Officers quickly learned of the

no-contact order against Kinsey.

       By way of amended information, the State charged Kinsey with gross

misdemeanor violation of a no-contact order with a domestic violence allegation. Kinsey

stipulated to the existence of the no-contact order and that he knew about the order. Two

mistrials occurred before the case proceeded to a third and final trial.

       At the third trial, the State called Duran as a witness. During her testimony, the

following exchange occurred:


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No. 35215-3-III
State v. Kinsey


              [THE STATE:] [Ms. Duran], is it fair to say you don’t want to be
       here today?
              [DURAN:] Why would I? I have been here how many weeks now?
       I mean how many trials?
                      [DEFENSE COUNSEL]: Objection, your Honor.
                      THE COURT: No, I don’t want to be here. I’d rather be at
       home . . . playing with my grand kids than being here dragging on and on
       and on. I want this over with.

1 Report of Proceedings (RP) (Nov. 16, 2016, Dec. 5, 2016, Dec. 7, 2016, Jan. 30, 2017,

Mar. 13, 2017, Mar. 16, 2017, Mar. 17, 2017) at 96. No party objected to the court’s

comment.

       Minutes later, Kinsey brought a motion for mistrial. The motion was based on

Duran’s testimony there had been three trials, police had drawn weapons on Kinsey, and

Kinsey had been in prison at some point. Kinsey did not raise the trial court’s recent

comment as a basis for his motion. The trial court denied the motion for mistrial.

       After the parties presented their evidence, they gave closing arguments. Defense

counsel argued that Kinsey was not guilty of the charged crime because he did not

knowingly violate the no-contact order:

              So the car’s really important. And the car’s important as well
       because of the tinted windows. Now the windows are tinted such that, as
       [Duran] described, a person on the outside of the vehicle would not be able
       to identify someone looking inside. It’s dark tinted. I think she actually
       indicated it was essentially the color black. It’s very difficult to look from
       the outside in and see what’s going on in the car.


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State v. Kinsey


                I think that the car’s especially important, because it shows as
      evidence of the initial mistake that [Kinsey] made. And before we move
      on, I think that’s worthy to talk about, because the law does, does talk about
      this idea of a knowing violation. And “knowing” is an important word in
      the Jury Instructions. It’s an important word in the law. And it was there
      intentionally. There’s reason why it’s in there, and that’s because it is not a
      crime to have an unknowing violation. . . .
                ....
                And it’s important that we recognize that when [Kinsey] did get
      inside the vehicle, he exited immediately. And [Duran] wasn’t clear about
      her recollection of what happened. But the officers were pretty clear that
      [Kinsey] got into the vehicle. And at that point what do you do? I mean if
      you remain in the vehicle longer, that’s clearly a violation. In fact, that’s
      further stronger evidence of a violation. So at that point [Kinsey] basically
      has a choice. He can remain in the car and further violate the order or get
      out, and that’s what the officer said that he did immediately, as quickly as
      he could to attempt to disarm the situation and further avoid any violation,
      he did just that. He left. He exited the car, and he actually eventually
      left . . . .

2 RP (Mar. 16-17, 2017) at 231-32.

      The jury found Kinsey guilty of the charged crime. He appeals.

                                       ANALYSIS

      A.     UNFAIR TRIAL CLAIM: APPEARANCE OF FAIRNESS

      Kinsey first claims that the trial judge’s comment that he would rather be playing

with his grandchildren and wanted the trial over with violated the appearance of fairness

doctrine. Kinsey did not raise this argument below.




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No. 35215-3-III
State v. Kinsey


       Claim of error reviewable

       In general, appellate courts will not review a claim of error on appeal that was not

preserved below. RAP 2.5(a). We will review an unpreserved claim of error if it

involves a manifest error affecting a constitutional right. RAP 2.5(a)(3).

       We first consider whether the unpreserved claim of error involves a constitutional

right. Criminal defendants have a due process right to a fair trial by an impartial judge.

WASH. CONST. art. I, § 22; U.S. CONST. amends. VI, XIV § 1; In the Matter of

Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955). “Impartial” means

the absence of actual or apparent bias. In re Pers. Restraint of Swenson, 158 Wn. App.

812, 818, 244 P.3d 959 (2010). We conclude that the unpreserved claim of error involves

a constitutional right.

       We next consider whether the unpreserved claim of error was manifest. “To be

manifest, an error must result in actual prejudice, that is, the asserted error must have had

practical and identifiable consequences in the trial of the case.” State v. Davis, 175

Wn.2d 287, 344, 290 P.3d 43 (2012).

       “[T]o determine whether an error is practical and identifiable, the appellate
       court must place itself in the shoes of the trial court to ascertain whether,
       given what the trial court knew at that time, the court could have corrected
       the error.” If the trial court could not have foreseen the potential error or
       the record on appeal does not contain sufficient facts to review the claim,
       the alleged error is not manifest.

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No. 35215-3-III
State v. Kinsey


Id. (citation omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 100, 217 P.3d 756 (2009)).

       A trial judge surely knows not to make comments before a jury that could be

perceived as minimizing the importance of the trial. The trial judge could have, and

should have, corrected the claimed error by retracting its statement soon after it was

made. We conclude that the unpreserved claim of error was manifest. We thus consider

the merits of Kinsey’s argument.

       The trial judge’s comment does not evidence any bias

       “Under the appearance of fairness doctrine, a judicial proceeding is valid only if a

reasonably prudent, disinterested observer would conclude that the parties received a fair,

impartial, and neutral hearing.” State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973

(2010) (citing State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995)). “Evidence of a

judge’s actual or potential bias must be shown before an appearance of fairness claim will

succeed.” State v. Chamberlin, 161 Wn.2d 30, 37, 162 P.3d 389 (2007). In analyzing

prejudice, the court does not look at the comment in isolation, but in the context of the

case as a whole. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007) (quoting State

v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).

       We first observe that the trial judge’s comment about wanting the trial over with

was not about the present trial taking too long. We know this because the testimonial


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No. 35215-3-III
State v. Kinsey


portion of the trial had just begun; Duran was the State’s first witness. The trial judge’s

comment instead was an imprudent expression of frustration that the matter was being

tried a third time. The judge’s comment did not express any opinion about which party

had the stronger case, or about the credibility of a witness, or about the weight of any

evidence. Because the trial judge’s comment did not express bias for or against a party or

a party’s witness, Kinsey has failed to establish that the trial judge had any bias in the

case. We therefore reject Kinsey’s first claim that he did not receive a fair trial.

       B.     UNFAIR TRIAL CLAIM: PRESUMPTION OF INNOCENCE

       Kinsey next argues that he did not receive a fair trial because the trial judge’s

comment improperly denied him the presumption of innocence.1

       The constitutional right to a fair trial includes the right to the presumption of

innocence. State v. Gonzalez, 129 Wn. App. 895, 900, 120 P.3d 645 (2005). The trial

court has the duty to protect the presumption of innocence and ensure the fairness of the

proceeding. Id. In Gonzalez, the trial court undermined the presumption of innocence by

telling the jury that: (1) the defendant was in jail because he could not post bail, (2) the


       1
         In an isolated sentence, Kinsey asserts that the trial court abused its discretion in
denying his sidebar motion for a mistrial. We do not review this assertion because Kinsey
has neither assigned error to the trial court’s ruling nor has he provided any argument or
authority to support it. Vasquez v. Hawthorne, 145 Wn.2d 103, 111, 33 P.3d 735 (2001);
Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).

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No. 35215-3-III
State v. Kinsey


Department of Corrections was transporting him back and forth between jail and court,

and (3) standard operating procedures required the defendant to be handcuffed while he

was transported between jail and court. Id. at 898. We held that a criminal defendant’s

right to the presumption of innocence is violated when a court informs the jury that the

defendant has not posted bail, is in custody, and is being transported between jail and

court in handcuffs and under guard. Id. at 903.

       Here, the trial judge’s imprudent comment about wanting the trial over with does

not remotely compare to the comments made by the trial judge in Gonzalez. As we

recognized above, the trial judge’s comment was an improper expression of frustration

that the matter was being tried a third time. The comment did not express any opinion

about Kinsey’s guilt and, for this reason, could not have deprived Kinsey of his

presumption of innocence. We therefore reject Kinsey’s second claim that he did not

receive a fair trial.

       C.      NO IMPROPER JUDICIAL COMMENT ON THE EVIDENCE

       Kinsey next argues that the trial court’s comment amounted to an improper judicial

comment on the evidence in violation of the Washington Constitution.

       Article IV, section 16 of the Washington Constitution prohibits a judge from

“conveying to the jury his or her personal attitudes toward the merits of the case” or


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No. 35215-3-III
State v. Kinsey


instructing a jury that “matters of fact have been established as a matter of law.” State v.

Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). An improper comment may be express

or implied. State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). A violation occurs

if it appears the court’s attitude toward the merits of the case are reasonably inferable

from the nature or manner of the court’s statements. State v. Elmore, 139 Wn.2d 250,

276, 985 P.2d 289 (1999) (quoting State v. Carothers, 84 Wn.2d 256, 267, 525 P.2d 731

(1974)).

       Kinsey relies on State v. Bogner, 62 Wn.2d 247, 382 P.2d 254 (1963). There,

defense counsel objected to a witness’s testimony that a robbery had occurred. Id. at 249.

The trial court asked if the defense was denying a robbery had occurred. Id. Defense

counsel responded that the State had not yet established a robbery. Id. The trial court

replied that the trial was about who had committed the robbery and remarked that the trial

was becoming a little ridiculous at that point. Id. Our high court reversed. Id. at 256. In

reversing, Bogner held that the trial court improperly commented on the evidence because

its comment reasonably implied to the jury that the State had already proved a robbery

had occurred. Id. at 255-56.

       Kinsey asserts that the trial judge’s comment in this case was even more egregious.

We disagree. As explained above, the trial judge’s comment that it wanted the trial over


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No. 35215-3-III
State v. Kinsey


with was an imprudent expression of frustration that the case was being tried a third time.

The comment did not express or imply the trial judge’s personal attitude about the merits

of the case.

       D.      EFFECTIVE ASSISTANCE OF COUNSEL

       Kinsey argues that he received ineffective assistance of counsel because his trial

counsel, in closing, admitted he entered Duran’s car. Kinsey asserts that defense counsel

should have disputed he entered Duran’s car. Kinsey further asserts that by admitting he

entered Duran’s car, counsel conceded his guilt, and therefore provided ineffective

assistance. We disagree.

       To meaningfully protect an accused’s right to counsel, an accused is entitled to

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Courts apply a two-pronged test to determine if counsel

provided effective assistance: (1) whether counsel performed deficiently, and (2) whether

the deficient performance prejudiced the defendant. Id. at 687. If a defendant fails to

establish one prong of the test, this court need not address the remaining prong. State v.

Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). This is a mixed question of law

and fact, reviewed de novo. Strickland, 466 U.S. at 698.




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No. 35215-3-III
State v. Kinsey


       To satisfy the first prong, the defendant must show that, after considering all the

circumstances, counsel’s performance fell below an objective standard of reasonableness.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The burden is on the

defendant to show deficient performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d

1260 (2011). This court gives great deference to trial counsel’s performance and begins

the analysis with a strong presumption counsel performed effectively. State v. West, 185

Wn. App. 625, 638, 344 P.3d 1233 (2015). Counsel’s reasonable trial tactics do not

constitute deficient performance. Grier, 171 Wn.2d at 33.

       Here, two officers testified that Kinsey got into the red Ford. Duran testified that

she could not recall if Kinsey got into the car. Instead of challenging the officers’

testimonies, defense counsel relied on the following uncontested evidence. First, Kinsey

believed that the red Ford belonged to someone other than Duran. Second, Kinsey could

not see the driver because the red Ford’s windows were heavily tinted. Third, Kinsey

quickly got out of the red Ford after he entered it. Defense counsel used these

uncontested facts to argue that Kinsey was innocent because he did not knowingly violate

the no-contact order. Counsel argued that once Kinsey knew that Duran was the driver,

Kinsey’s act of immediately getting out of the car was inconsistent with a knowing

violation of the order. Defense counsel stressed that Kinsey could not be convicted


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No. 35215-3-III
State v. Kinsey


unless the State proved that Kinsey's violation was a "knowing violation." Counsel's

decision to not challenge the officers' testimony but to pursue a theory based on

uncontested evidence was not deficient performance. Rather, it was a reasonable trial

tactic.

          Affirmed.

          A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

                                              lAw<'<,,,..   (.\-<s'Vv\.\1
                                             Lawrence-Berrey, C.J.
                                                                            1   C.' ~,

WE CONCUR:




                                               12
