     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE
                                                                                       [^3


STATE OF WASHINGTON,                               No. 73914-0-1

                     Respondent,

           v.


                                                                                         CO
DAVID DARRELL SYKES,                               UNPUBLISHED OPINION


                     Appellant.                    FILED: November 21, 2016



       Verellen, C.J. — David Sykes appeals his conviction for third degree assault of

a police officer. He contends his trial counsel was ineffective for failing to propose a

"modified 'no duty to retreat'" jury instruction.1 But even if the instruction is appropriate

in an assault, the evidence here did not support giving such an instruction. Sykes also

contends the officer's testimony that his interaction with Sykes "made it through the

force review board without a single critique"2 was an impermissible opinion on his guilt.

Alternatively, he argues his counsel was ineffective for failing to object to the opinion

testimony. But Sykes fails to establish actual prejudice from the isolated and unsolicited

statement. We affirm.




       1 Appellant's Br. at 1.
       2 Report of Proceedings (RP) (Aug. 4, 2015) at 226.
No. 73914-0-1/2



                                         FACTS

       On his way to work in downtown Seattle the morning of January 24, 2015, Jarrid

McAuliff walked passed David Sykes, a stranger to McAuliff. When McAuliff ignored

some comments by Sykes, Sykes walked up to McAuliff, leaned in, and told him, "You

better watch yourself, boy."3 Then Sykes immediately punched McAuliff in the face.

McAuliff started bleeding and threw his hot coffee on Sykes.4 McAuliff retreated across

the street and called 911.


       Officer Brian Patenaude, his partner, and another officer responded to McAuliff's

call. Officer Patenaude recognized Sykes from a prior incident at the same location.

Sykes matched McAuliff's description of his assailant and was shouting and pacing with

clenched fists. Officer Patenaude wanted to wait for more officers to arrive before

approaching Sykes, but intervened when Sykes started heading back towards McAuliff.

       Officer Patenaude told Sykes to stop walking, but Sykes continued toward

McAuliff. Officer Patenaude grabbed Sykes's arm, put him into an "escort hold" and

directed Sykes away from McAuliff.5 Sykes told Officer Patenaude to get out of his way

and that he was "going to beat his mother-fucking ass," referring to McAuliff.6 Sykes

yanked his arm free from Officer Patenaude's hold and shouted, "Don't push me."7


       3RP(Aug. 5, 2015) at 312.
       4 Sykes had a different chronology of the events, and told police that he punched
McAuliff because McAuliff threw hot coffee on him.

         5 RP (Aug. 4, 2015) at 163. According to Officer Patenaude, an "escort hold"
entails holding "somebody's arm just above the elbow and at the wrist. And you are
literally just escorting them. You're not squeezing. You are not pulling. You are just
trying to escort them along." Id.
       6 jd, at 164.
      7 Id. at 164, 166. Officer Patenaude denied pushing Sykes and assumed Sykes
was referring to Officer Patenaude's escort hold on Sykes.
No. 73914-0-1/3


Officer Patenaude repeatedly told Sykes to "walk."8 Instead of obeying Officer

Patenaude's commands, Sykes turned, faced Officer Patenaude, and punched him in

the face.

       Officer Patenaude returned Sykes's punch and the two began fighting. Sykes

eventually fell to the ground, but he pulled Officer Patenaude down with him. He landed

on top of Officer Patenaude and continued to punch him. Officer Patenaude's partner

and the other officer attempted to strike Sykes with their batons, but the blows appeared

to have little effect. Finally, two additional officers arrived and arrested Sykes. Most of

the incident was captured on police dashcam video recordings and a nearby

convenience store's surveillance cameras. Officer Patenaude suffered a black eye as

well as elbow and knuckle abrasions.

       The State charged Sykes with one count of third degree assault for assaulting a

police officer and one count of third degree assault for negligently causing bodily harm

and substantial pain to McAuliff.9

       A jury found Sykes guilty as to the charge of third degree assault of Officer

Patenaude, but could not reach a verdict as to the charge involving McAuliff.10 At

sentencing, the State dismissed the charge involving McAuliff, and the court imposed an

exceptional sentence downward of 16 months.

       Sykes appeals.




       8 Id, at 166.
       9RCW9A.36.031(1)(f), (g).
       10 The jury also could not reach a verdict as to the lesser degree offense of fourth
degree assault of McAuliff.
No. 73914-0-1/4


                                        ANALYSIS


       Sykes contends his counsel was ineffective for "failing to propose a modified 'no

duty to retreat'" jury instruction as to the charge involving Officer Patenaude.11 We

disagree.

      To establish ineffective assistance of counsel, a defendant must show both that

counsel's performance was deficient and the performance prejudiced the defendant's

case.12 Deficient performance is shown if counsel's conduct fell below an objective

standard of reasonableness.13 To satisfy the prejudice prong, a defendant must show a

"reasonable probability that, except for counsel's unprofessional errors, the result of the

proceeding would have been different."14 "Where the claim of ineffective assistance is

based upon counsel's failure to request a particular jury instruction, the defendant must

show he was entitled to the instruction, counsel's performance was deficient in failing to

request it, and the failure to request the instruction caused prejudice."15 There is a

strong presumption that counsel provided effective assistance.16

       Sykes's counsel proposed an instruction based on the no duty to retreat

Washington pattern jury instruction as to the charge involving Officer Patenaude:




       11 Appellant's Br. at 1.
      12 Strickland v. Washington. 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d
674(1984).
       13 State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997).
       14 State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
       15 State v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996 (2012).
       16 State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003).
No. 73914-0-1/5


               It is lawful for a person who is in a place where that person has a
       right to be and who has reasonable grounds for believing that he or she is
       being attacked to stand his/her ground and defend against such attack by
       the use of lawful force. The law does not impose a duty to retreat.[17]

Sykes correctly concedes that this instruction reflects an incorrect statement of the law

as to a police officer-related attack.18 A "person may use force to resist arrest only ifthe

arrestee actually, as opposed to apparently, faces imminent danger of serious injury or

death."19 Sykes argues his counsel could easily have modified the proposed instruction

to "It is lawful for a person who is in a place where that person has a right to be and who

is actually about to be seriously injured to defend against such attack by the use of

lawful force. The law does not impose a duty to retreat."20

       Sykes cites no authority that the no duty to retreat standard applies to an assault

of a police officer.21 But even assuming it does apply, the evidence did not support

such an instruction. A party is not entitled to an instruction if no evidence supports it.22

       Here, most of the incident involving Officer Patenaude was captured on police

dashcam video recordings and nearby surveillance cameras. These admitted

recordings show uniformed Officer Patenaude attempting to lawfully detain Sykes after




       17 Clerk's Papers (CP) at 46.
       18 See Appellant's Br. at 10 ("[T]he italicized language represents an incorrect
statement of the law as to the charge involving [Officer] Patenaude.").
       19 State v. Bradley. 141 Wn.2d 731, 737, 10 P.3d 358 (2000).
       20 Appellant's Br. at 11.
      21 He relies on readily distinguishable cases where a no duty to retreat instruction
was found appropriate for assaults between civilians. See State v. Allerv. 101 Wn.2d
591, 598, 682 P.2d 312 (1984); State v. Williams. 81 Wn. App. 738, 742, 916 P.2d 445
(1996).
       22 Allerv. 101 Wn.2d at 598.
No. 73914-0-1/6


a report of an assault. Officer Patenaude testified that he arrived on scene and saw

Sykes yelling and pacing with clenched fists, wearing clothes that matched the

suspect's description. The video recordings confirm that Officer Patenaude did not

intervene until Sykes, undeterred by Officer Patenaude's commands to stop, continued

towards McAuliff. Officer Patenaude positioned himself between Sykes and McAuliff

and attempted to escort Sykes away from McAuliff, but Sykes broke free of Officer

Patenaude's hold. In one of the videos, Officer Patenaude is then heard directing

Sykes to walk four times immediately before being punched. None of the video

recordings show Officer Patenaude, or any other officer, drawing a weapon or using

physical force other than the escort hold before being punched.

      There is no evidence that Sykes was "actually about to be seriously injured" by

Officer Patenaude. And Sykes did not have a "right to be" in that location ignoring the

officer's order to walk away. Because the evidence did not support the instruction,

Sykes's ineffective assistance claim fails.

       For the first time on appeal, Sykes contends Officer Patenaude testified to an

improper opinion on Sykes's guilt. But he fails to establish any prejudice.

       Opinions on guilt are generally improper whether made directly or by inference.23

"Impermissible opinion testimony regarding the defendant's guilt may be reversible error

because such evidence violates the defendant's constitutional right to a jury trial, which




       23 State v. Quaale. 182Wn.2d 191, 199, 340 P.3d 213 (2014).
No. 73914-0-1/7


includes the independent determination of the facts by the jury."24 Whether testimony is

an impermissible opinion about guilt depends upon the circumstances.25

       In determining whether statements are impermissible opinion testimony, the trial

court will consider the circumstances of the case, including "'(1) the type of witness

involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the

type of defense, and (5) the other evidence before the trier of fact.'"26 "The point is to

avoid having witnesses tell the jury what result to reach."27

       Officer Patenaude's unsolicited statement occurred when the prosecutor asked

what would have happened had Sykes stopped resisting:

       OFFICER:             The batons would have stopped.

       PROSECUTOR:          Okay. And why is that?

       OFFICER:             Because we're trained to strike and assess. . . . [L]et's say
                            somebody is on their hands and knees and they are still
                            trying to rear up on you, you know. You strike and assess.
                            Are they still fighting? Are they still aggressing?

                                    And we have, you know, every one of our videos and
                            all of our use of forces are put under extremity [sic] scrutiny
                            through what we call a force review board. And they review
                            each strike, each command given, et cetera, et cetera. This
                            one's made it through the force review board without a single
                            critiqueS28]




       24
            Id.

      25 State v. Cruz. 77 Wn. App. 811, 814-15, 894 P.2d 573 (1995); City of Seattle v.
Heatlev. 70 Wn. App. 573, 579, 854 P.2d 658 (1993).
       26 State v. Montgomery. 163 Wn.2d 577, 591, 183 P.3d 267 (2008) (internal
quotation marks omitted) (quoting State v. Demerv. 144 Wn.2d 753, 759, 30 P.3d 1278
(2001)).
       27 State v. King. 135 Wn. App. 662, 673, 145 P.3d 1224 (2006).
       28 RP (Aug. 4, 2015) at 225-26 (emphasis added).
No. 73914-0-1/8



Sykes's attorney objected to the testimony as irrelevant, but did not mention anything

about an improper opinion.29 Sykes is precluded from arguing an improper opinion on

guilt for the first time on appeal unless he can demonstrate a manifest error affecting a

constitutional right.30

       "Admission of witness opinion testimony on an ultimate fact, without objection, is

not automatically reviewable as a 'manifest' constitutional error."31 A constitutional error

is manifest only when the error caused actual prejudice or practical and identifiable

consequences.32

       Officer Patenaude's unsolicited comment was fleeting and never mentioned

again. It was not a direct comment on Sykes's guilt. The comment did not reference

Sykes by name, discuss Sykes's actions, or opine on whether Sykes's use of force was

justified. Rather, the comment opined on Officer Patenaude's use of force. Sykes

theorizes the jury "likely" attributed "authority and expertise" to the force review board,

"[a]nd if Patenaude's actions were appropriate, then Sykes's response was necessarily

invalid."33 But nothing in the record supports his theory. The jury was instructed that

Sykes's use of force was lawful only if he was "actually about to be seriously injured."34


       29 jd. ("I'm going to object to that, Your Honor. It's not relevant.").
       30 RAP 2.5(a)(3).
       31 State v. Kirkman. 159 Wn.2d 918, 936, 155 P.3d 125 (2007).
       32 Id, at 935.
       33 Appellant's Br. at 17.
       34 CP at 70. The jury was not instructed on the "Lawful Force—Resisting
Detention" instruction, which states that a person's use of force against a police officer
is lawful "only if the person being arrested is in actual and imminent danger of serious
injury from an officer's use of excessive force." 11 Washington Practice Washington
Pattern Jury Instructions: Criminal 17.02.01, at 257 (3rd ed. 2008) (emphasis
added).


                                               8
No. 73914-0-1/9


The jury was not directed to determine or consider whether Officer Patenaude's use of

force was justified.

       Especially because the unsolicited comment was brief and isolated, Sykes does

not show a reasonable probability that the outcome would be any different. Because

Sykes fails to show actual prejudice, we conclude that Officer Patenaude's comment

about the force review board is not a manifest constitutional error.

       Alternatively, Sykes claims his counsel was ineffective for failing to object to the

opinion testimony. But a defendant claiming ineffective assistance must demonstrate

both deficient performance and prejudice, i.e., a reasonable probability that the outcome

would have been different but for counsel's omission.35 As discussed, there is no

reasonable probability that the outcome would have been different had Sykes's counsel

objected to the challenged testimony as improper.

       Therefore, we affirm.36




WE CONCUR:




    1r 1<M *• NI       —1




       35 McFarland. 127 Wn.2d at 334-35.
       36 In response to Sykes's challenge to any award of costs on appeal, the State
indicates it does not seek to recover costs on appeal. See Respondent's Br. at 30.
