State Of Washington v. David Darrell Sykes, 73914-0

Background

On Jan. 24, 2015, David Sykes struck a stranger (McAuliff) in downtown Seattle; McAuliff retreated and called 911.
Officer Brian Patenaude and others responded; Patenaude attempted to detain/escort Sykes away from McAuliff after Sykes ignored commands.
While being escorted and after multiple commands to "walk," Sykes turned and punched Officer Patenaude, who returned the punch; a struggle ensued and Sykes was arrested. The incident was largely captured on dashcam and store surveillance video.
Sykes was charged with third degree assault of a police officer and a separate third/fourth degree assault count involving McAuliff; a jury convicted Sykes of assaulting the officer but deadlocked on the McAuliff charge, which the State later dismissed; Sykes received a downward-departure sentence of 16 months.
On appeal Sykes argued (1) ineffective assistance for failing to request a modified "no duty to retreat" jury instruction and (2) that Officer Patenaude’s testimony about the incident ‘‘making it through the force review board without a single critique’’ was an improper opinion on guilt (and counsel was ineffective for not objecting).

Issues

Issue	Plaintiff's Argument (Sykes)	Defendant's Argument (State)	Held
Whether counsel was ineffective for failing to request a modified "no duty to retreat" instruction for assault on an officer	Counsel should have requested an instruction allowing use of force when a person is "actually about to be seriously injured," removing duty to retreat	Even if such an instruction could apply generally, evidence did not support it here because Patenaude was lawfully detaining Sykes and no imminent serious injury by officer was shown	Denied — no evidence supported the instruction; ineffective assistance claim fails
Whether Officer Patenaude’s comment about the force review board was an improper opinion on Sykes’s guilt	Testimony implied official approval of officer conduct, which could lead jury to infer Sykes was unjustified and therefore guilty; trial counsel failed to object to opinion testimony	The remark was brief, unsolicited, did not reference Sykes’s culpability, and was not reasonably likely to affect the verdict given video evidence and proper jury instructions	Not reversible error; no manifest constitutional error shown
Whether counsel was ineffective for failing to object to the force review board comment	Counsel’s omission prejudiced Sykes because the jury likely deferred to the force review board’s implicit credibility judgment	Even assuming deficiency, Sykes cannot show reasonable probability of a different outcome from an objection	Denied — no prejudice established
Whether the record supports review of the unpreserved opinion claim as a manifest constitutional error	Sykes asked for plain review of the unpreserved claim	To obtain review, must show a manifest error affecting a constitutional right with actual prejudice	Denied — no actual prejudice demonstrated

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes ineffective assistance standard requiring deficient performance and prejudice)
State v. Bradley, 141 Wn.2d 731 (use-of-force by arrestee: resistance permitted only if actual imminent danger of serious injury)
State v. Allery, 101 Wn.2d 591 (no duty to retreat instruction appropriate in certain civilian self-defense contexts)
State v. Williams, 81 Wn. App. 738 (discusses no duty to retreat instruction in non-officer assaults)
State v. Stenson, 132 Wn.2d 668 (counsel performance standard in Washington)
State v. McFarland, 127 Wn.2d 322 (prejudice prong for ineffective assistance)
State v. Thompson, 169 Wn. App. 436 (requirements when claim rests on failure to request jury instruction)
State v. Tilton, 149 Wn.2d 775 (strong presumption of effective assistance)
State v. Quaale, 182 Wn.2d 191 (impermissible opinion testimony can violate jury’s fact-finding role)
State v. Montgomery, 163 Wn.2d 577 (factors to consider when assessing whether testimony is impermissible opinion)
State v. Demery, 144 Wn.2d 753 (contextual assessment for opinion testimony)
State v. King, 135 Wn. App. 662 (warning against witnesses telling the jury what result to reach)
State v. Kirkman, 159 Wn.2d 918 (standard for manifest constitutional error review)