State Of Washington v. David Darrell Sykes ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 80768-4-I
)
Respondent, )
)
v. )
)
DAVID DARRELL SYKES, ) UNPUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — The Washington Privacy Act, RCW 9.73.090(1)(b), contains
several procedural requirements a police officer must satisfy before an arrested
person’s recorded statement is admissible. Erroneously admitting a recording is
prejudicial when there is a reasonable probability the recording changed the
outcome at trial.
David Sykes was charged with two counts of third degree assault for
intentionally spitting on two police officers. The jury convicted him on only one of
the charges. Sykes requests a retrial because the court admitted two recordings
of officers speaking with him following his arrest. One recording was not within the
scope of RCW 9.73.090(1)(b) because the officer was trying only to inform Sykes
of his right to counsel and not attempting to take a statement or gather any
information from him. Even if the trial court should not have admitted the other
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recording, there is no reasonable probability it impacted the outcome because
properly admitted evidence provided the same information.
Sykes requested a lesser included instruction for attempted assault. A
court does not abuse its discretion by refusing to give an instruction on a lesser
included offense when the evidence does not show only the lesser offense
occurred. Because the only witnesses to Sykes’s assault testified his spit actually
landed on the officers and the evidence does not show only the lesser offense
occurred, the court did not abuse its discretion.
Sykes contends he received ineffective assistance of counsel because his
trial counsel did not convince the court to exclude the recordings or to give the
lesser-included offense instruction. Because these alleged errors were either not
erroneous or not prejudicial, Sykes fails to show defense counsel was ineffective.
Therefore, we affirm.
FACTS
Tanna Cornely was waiting alone at a bus stop on South Jackson Street in
Seattle around 9:30 one night when a man began leering at her. As the bus
approached, she demanded to know what he was looking at. While the bus was
stopping, the man punched her in the face. Cornely fled onto the bus, traveled for
four or five blocks, and disembarked. She called the police, and Officer Gregory
Baker responded.
Officer Baker spoke with Cornely, and she described the man who punched
her. While they talked, Cornely pointed at the profile of a man on a passing bus
and said he was the person who assaulted her. Officer Baker got in his car and
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followed the bus to its next stop. He entered the bus and saw the man depart from
the bus’s rear doors. Officer Baker followed the man, David Sykes, off the bus,
told him to put his hands behind his back, and then handcuffed him. Officer Baker
requested assistance to detain Sykes so he could get Cornely to see if she could
identify him.
Officers Gregory Soss and Jayms Harris arrived to assist. Sykes remained
handcuffed and quickly became belligerent and aggressive, cursing, insulting, and
threatening to kill the officers. Sykes also began spitting. Sykes’s behavior made
the officers fear he would try to assault them, so they held him chest-first against
an adjacent wall. Sykes continued spitting, swearing, yelling, and threatening the
officers. As Officer Harris restrained Sykes and waited for Officer Baker to return
with Cornely, Sykes’s spit hit him in the cheek and neck.
Officer Baker returned with Cornely five to ten minutes later, and she
identified Sykes as the man who punched her. The officers arrested Sykes for
punching Cornely and detained him in the back of Officer Soss’s patrol car with the
window slightly open. Officer Harris recorded audio of his unsuccessful attempt to
speak with Sykes through the window to learn his name and other basic
information.1
Officer Soss called Officer Kevin Davis, their sergeant, to assist. Officer
Davis tried twice to inform Sykes of his CrR 3.1 right to counsel. Officer Harris
1The record is unclear about the type of recording device Officer Harris
used, except that neither his body camera nor his mounted in-car recording
system were used. He may have used a cell phone.
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recorded audio of Officer Davis’s first attempt. In this attempt, Officer Davis
opened the door of the patrol car and tried to talk to Sykes, and stopped almost
immediately because Sykes spit at him. Officer Davis avoided being spat upon
because he quickly closed the door. Officer Davis opened the door a second time
and attempted to speak with Sykes but stopped after Sykes spat in his face. The
second attempt was not recorded.
The State charged Sykes with one count of fourth degree assault for
punching Cornely, one count of third degree assault for spitting on Officer Harris,
and one count of third degree assault for spitting on Officer Davis. Pretrial,
defense counsel moved to exclude the recording of Officer Harris speaking with
Sykes, arguing it did not comply with the Washington Privacy Act, RCW 9.73.090.
Defense counsel did not move to exclude the recording of Officer Davis. The court
denied the motion, concluding the Harris recording was admissible because
Officer Harris attempted to comply with RCW 9.73.090(1)(b).
During trial, defense counsel asked that the court provide the jury with
instructions on the lesser included offense of attempted third degree assault. The
court reserved ruling until hearing all the evidence and denied the request. The
State played the two minute recording of Officer Harris speaking with Sykes and
the nineteen second recording of Officer Davis’s attempt to speak with Sykes. The
jury found Sykes not guilty of assaulting Cornely, found him guilty of assaulting
Officer Davis, and could not reach a verdict on the charge of assaulting Officer
Harris. The State subsequently dismissed the charge for allegedly assaulting
Officer Harris.
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Sykes appeals.
ANALYSIS
We agree with Sykes that any issues from the charge for assaulting Officer
Harris are moot because the State has dismissed that charge. The only conviction
before us for review is from Sykes’s assault of Officer Davis.
I. Recordings
Sykes argues retrial is required because he was prejudiced by the court
erroneously admitting the recordings of Officer Harris and Officer Davis speaking
with him.2 He contends the recordings were inadmissible because they did not
comply with the procedural recording requirements in RCW 9.73.090(1)(b) of the
Washington Privacy Act. The State argues RCW 9.73.090(1)(b) is inapplicable
because its scope is limited to custodial interrogations.
2 The State contends we should not review the Davis recording, exhibit 7,
because Sykes did not object to admitting it. Sykes challenged the Harris
recording, exhibit 8, but declined to challenge the Davis recording. RAP 2.5(a)
gives us the discretion to consider errors not raised before the trial court. State v.
Malone, 193 Wn. App. 762, 765, 376 P.3d 443 (2016) (citing State v. Russell, 171
Wn.2d 118, 122, 249 P.3d 604 (2011); RAP 2.5(a)). Because the legal questions
presented by both recordings are the same and Sykes challenged the Harris
recording before the trial court on the same grounds raised here for both
recordings, we will consider both recordings. See Lunsford v. Saberhagen
Holdings, Inc., 139 Wn. App. 334, 338, 160 P.3d 1089 (2007) (“But if an issue
raised for the first time on appeal is ‘arguably related’ to issues raised in the trial
court, a court may exercise its discretion to consider newly-articulated theories for
the first time on appeal.”) (citing State Farm Mut. Auto. Ins. Co. v. Amirpanahi, 50
Wn. App. 869, 872-73, 751 P.2d 329 (1988)); see also RAP 1.2(a) (rules of
appellate procedure should be interpreted to “facilitate the decision of cases on the
merits”).
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We review a court’s legal conclusions on a motion to suppress de novo. 3
We also review questions of statutory interpretation de novo,4 interpreting statutes
to uphold the intent of the legislature.5
RCW 9.73.030 establishes broadly applicable privacy protections for the
general public, and RCW 9.73.090(1)(b) creates an exception applicable only to a
person under arrest.6 RCW 9.73.090(1)(b) provides:
(1) The provisions of RCW 9.73.030 through 9.73.080 shall
not apply to police, fire, emergency medical service, emergency
communication center, and poison center personnel in the following
instances:
....
(b) Video and/or sound recordings may be made of arrested
persons by police officers responsible for making arrests or holding
persons in custody before their first appearance in court. Such video
and/or sound recordings shall conform strictly to the following:
(i) The arrested person shall be informed that such recording
is being made and the statement so informing him or her shall be
included in the recording;
3State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014) (citing State
v. Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011)).
4
State v. Gray, 174 Wn.2d 920, 926, 280 P.3d 1110 (2012) (citing State v.
Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001)).
5 Lewis v. State, Dep’t of Licensing, 157 Wn.2d 446, 465, 139 P.3d 1078(2006) (citing State v. Grays Harbor County, 98 Wn.2d 606, 607, 656 P.2d 1084(1983)).
6State v. Cunningham, 93 Wn.2d 823, 828, 613 P.2d 1139 (1980).
Although Cunningham refers to RCW 9.73.090(2) as controlling the nature and
means of obtaining consent, id. at 830, the opinion notes that RCW 9.73.090(2)
had recently been renumbered as the provision at issue here,
RCW 9.73.090(1)(b), id. at 828 (citing LAWS OF 1977, 1st Ex. Sess., ch. 363, § 3).
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(ii) The recording shall commence with an indication of the
time of the beginning thereof and terminate with an indication of the
time thereof;
(iii) At the commencement of the recording the arrested
person shall be fully informed of his or her constitutional rights, and
such statements informing him or her shall be included in the
recording;
(iv) The recordings shall only be used for valid police or court
activities.
We do not have to decide the exact limits on the application of
RCW 9.73.090(1)(b). Our Supreme Court has observed it is “specifically aimed at
the specialized activity of police taking recorded statements from arrested
persons.”7 There is no authority it applies to an officer’s speech or mere conduct by
an arrested person.
Here, the Davis recording is only 19 seconds long and does not show any
effort to take a recorded statement from Sykes:
Officer: Sir, you have the right to an attorney. If you are not able to
afford one—
Sykes: Man, kill yourself.
Officer: Okay. Do you understand you have the right to an
attorney?
Sykes: Kill your—fuck off a bridge, man. [spitting sound]
(indiscernible).
Officer: Now, he got me there. Yeah. Yeah.[8]
7 Cunningham, 93 Wn.2d at 829 (emphasis added).
8 Report of Proceedings (RP) (Oct. 24, 2019) at 461.
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Officer Davis was trying to inform Sykes of his right to counsel, not make a factual
inquiry or gather information of any kind. Officer Davis was recorded giving
warnings when Sykes interrupted with nonresponsive answers and spitting. The
Davis recording is beyond the scope of RCW 9.73.090(1)(b).
The Harris recording is just over two minutes and contains Officer Harris’s
efforts to gather information from Sykes. Assuming without deciding that the
recording was subject to RCW 9.73.090(1)(b) and was admitted in error, Sykes
fails to show the error was prejudicial.
The parties agree the nonconstitutional harmless error standard applies.
An error was harmless “‘unless, within reasonable probabilities, had the error not
occurred, the outcome of the trial would have been materially affected.’”9 To
evaluate this, we consider “whether there is a reasonable probability that the
outcome of the trial would have been different without the inadmissible
evidence.”10
Sykes argues admitting the Harris recording prejudiced him because it
depicted his “raw . . . anger, accompanied by aggressive language and an
apparent spitting noise.”11 But Officers Harris, Davis, and Soss all provided the
same information in their testimony. They testified to the specific threats,
swearing, name-calling, and other aggressive and angry statements made by
9
State v. Rupe, 101 Wn.2d 664, 682, 683 P.2d 571 (1984) (quoting
Cunningham, 93 Wn.2d at 831).
10
State v. Gower, 179 Wn.2d 851, 857, 321 P.3d 1178 (2014) (citing State
v. Gresham, 173 Wn.2d 405, 433-34, 269 P.3d 207 (2012)).
11 Appellant’s Br. at 26.
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Sykes. They also specifically testified to his spitting behavior. And Sykes’s angry
and aggressive language was also contained in the admissible recording of Officer
Davis’s attempt to inform Sykes of his right to counsel. Although Sykes contends
the jury convicted him of assaulting Officer Davis because of the Harris recording,
we are not convinced that there is a reasonable probability the jury would have
reached a different verdict on the assault charge when the officers’ testimony and
the properly admitted Davis recording provided the same information. Because
there is no reasonable probability that the outcome of the trial on the Davis count
was affected by admitting the Harris recording, Sykes fails to demonstrate
prejudice from its admission.12
II. Jury Instructions on Attempted Assault
Sykes argues the court should have instructed the jury on attempted third
degree assault. The court reserved ruling on the proposed instruction until both
parties rested and then declined to provide the instruction because the evidence
did not support it. Because the court declined to provide the instruction based
upon the evidence presented, we review the decision for abuse of discretion.13
A defendant who requests an attempt instruction as a lesser included
offense of the crime is entitled to it when “(1) each element of the lesser offense is
a necessary element of the offense charged (legal prong) and (2) the evidence,
viewed most favorably to the defendant, supports an inference that only the lesser
12 Gower, 179 Wn.2d at 857; Rupe, 101 Wn.2d at 682.
13State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357 (2015) (citing
State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998)).
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crime was committed (factual prong).”14 The factual prong is met when the
evidence “‘would permit a jury to rationally find a defendant guilty of the lesser
offense and acquit him of the greater.’”15 Thus, the question is whether there was
evidence that only the lesser offense of attempted assault occurred.
Washington recognizes three forms of assault: attempting to inflict bodily
harm on another, unlawfully touching another with criminal intent, and placing
another in apprehension of physical harm.16 Sykes was charged with assault for
spitting on Officers Davis and Harris, which are charges of assault for unlawful
touching with criminal intent. The State presented three witnesses to both alleged
assaults: Officers Soss, Harris, and Davis. All three testified Sykes was spitting
and that Officers Harris and Davis were actually hit by his spit. Officers Harris and
Davis both testified Sykes intentionally spat at them. Sykes rested without
presenting any witnesses. Because there was no evidence that only the lesser
14State v. Hahn, 174 Wn.2d 126, 129, 271 P.3d 892 (2012) (citing State v.
Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)). Sykes argues the trial
court applied the wrong legal standard to analyze his request because “the
Workman test is not the correct test when an attempt instruction is requested.”
Appellant’s Br. at 34. Sykes’s argument is not persuasive because attempted
assault can be a lesser included offense to the crime of assault by unlawful
touching, State v. Hall, 104 Wn. App. 56, 64, 14 P.3d 884 (2000), and the
Workman test is used to determine if a lesser included offense instruction is
warranted, State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000)
(citing Workman, 90 Wn.2d at 447-48).
15
Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133
Wn.2d 559, 563, 947 P.2d 708 (1997)).
16
Hahn, 174 Wn.2d at 129 (citing State v. Wilson, 125 Wn.2d 212, 218, 883
P.2d 320 (1994)).
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included offense of an attempted touching occurred,17 the trial court did not abuse
its discretion by refusing to give the lesser included instruction.
III. Ineffective Assistance of Counsel
Sykes argues he received ineffective assistance of counsel because, first,
defense counsel did not object to the Davis recording or convince the court to
exclude both recordings and, second, because defense counsel did not convince
the trial court to provide an instruction on attempted assault.
We review claims of ineffective assistance of counsel de novo.18 The
defendant bears the burden of proving ineffective assistance of counsel.19 First,
the defendant must prove his counsel’s performance was deficient.20 Second, the
defendant must prove he was prejudiced by the deficient performance.21
“‘Prejudice exists if there is a reasonable probability that but for counsel’s deficient
17 To the extent Sykes argues he merely attempted to assault the officers
by spitting on them but did not complete the crime because it was not offensive,
the only explicit evidence about the offensiveness of spitting was from Officer
Harris, who testified it was offensive.
18 State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003) (citing State
v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000)).
19State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674(1984)).
20 Id. at 32 (quoting Strickland, 466 U.S. at 687).
21 Id. at 33 (quoting Strickland, 466 U.S. at 687).
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performance, the outcome of the proceedings would have been different.’”22
Failure to prove deficiency or prejudice ends the inquiry.23
As discussed, the Davis recording was properly admitted, admitting the
Harris recording was not prejudicial, and the court did not err by refusing to give
the lesser included instruction. Sykes fails to show his defense counsel was
ineffective.
Therefore, we affirm.
WE CONCUR:
22State v. Lopez, 190 Wn.2d 104, 116, 410 P.3d 1117 (2018) (internal
quotation marks omitted) (quoting State v. Estes, 188 Wn.2d 450, 458, 395 P.3d
1045 (2017)).
23State v. Woods, 198 Wn. App. 453, 461, 393 P.3d 886 (2017) (citing
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996)).
12