IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 84027-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION DAVID DARRELL SYKES,
Appellant.
BIRK, J. — Because we conclude David Sykes’s criminal conviction was
affected by ineffective assistance of counsel, we reverse and remand.1
I
Evidence showed that on March 26, 2021, Sykes and another individual
later identified as Richard Moore physically fought one another on a bus, and
Moore was stabbed. After the stabbing, Sykes exited the bus. A sheriff’s deputy
located Sykes, who indicated, “Yeah, I did it,” asserting Moore had robbed him.
Three days earlier, Sykes had reported to police that two assailants had attempted
to rob him. A deputy testified Sykes asserted Moore had been one of the
assailants, and that he stabbed Moore in self-defense.
1 On June 26, 2023, Sykes filed a pro se motion seeking dismissal of the
charges against him with prejudice. He does not provide a justification for this relief, and we deny his motion. On July 28, 2023, Sykes filed a pro se motion seeking reversal of his conviction. In light of our disposition, we deem this motion moot. No. 84027-4-I/2
To support his self-defense claim, Sykes introduced exhibit 17, a partially
redacted medical chart note from March 23, 2021. According to the chart note,
Sykes reported he had been assailed by two men attempting to rob him. The
exhibit included a medication list, among other medical data. During deliberations,
the jury submitted a question asking in part, “Can we consider # 17 Sykes
medication list? There seems to be antipsychotic meds.” Defense counsel initially
was uncertain which listed medication was being referenced, but it later became
evident the jury was referring to the drug olanzapine. Based on concern healthcare
professionals seated on the jury were applying specialized expertise not admitted
in evidence, the trial court instructed the jury:
You may consider Exhibit #17 in its entirety. However, your deliberations must be based on the evidence in the case and the law given to you by the court. The evidence that you are to consider during your deliberations consists of the testimony that you have heard from witnesses, stipulations, and the exhibits that I have admitted during the trial. You are not permitted to apply highly specialized knowledge during your deliberations that you may have gained as a result of professional or personal experience.
The jury returned a guilty verdict.
In a posttrial motion for a mistrial, Sykes’s counsel offered several
statements attributed to jurors to attempt to show jury misconduct affecting the
verdict. A court may consider affidavits of jurors only to the extent they do not
attest to matters that inhere in the verdict. Richards v. Overlake Hosp. Med. Ctr.,
59 Wn. App. 266, 272, 796 P.2d 737 (1990). Jurors’ statements inhere in the
verdict if the facts alleged are linked to the juror’s motive, intent, or belief, or
describe their effect on the juror. Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d
2 No. 84027-4-I/3
651, 379 P.2d 918 (1962). The proffered juror statements in this case inhered in
the verdict except to the extent they established the extrinsic fact that olanzapine
is an antipsychotic medication. In addition, in denying the motion, the trial court
concluded that knowledge that olanzapine is an antipsychotic is not specialized
knowledge. The State maintains the trial court did not abuse its discretion in so
concluding.
Sykes asserts his counsel’s neglect to redact the medication list was
ineffective assistance of counsel. To establish ineffective assistance of counsel,
a defendant must show that counsel performed deficiently and that the deficient
performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Review is de novo. State v. Wafford,
199 Wn. App. 32, 41, 397 P.3d 926 (2017). Counsel’s performance is deficient if
counsel erred so seriously that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. State v. Grier, 171 Wn.2d 17, 32-33, 246
P.3d 1260 (2011). We presume effective representation and require the defendant
to show the absence of legitimate strategic or tactical reasons for the challenged
conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
Counsel’s performance is evaluated based on the entire record. Id. at 335. To
show prejudice, the defendant must show counsel’s deficient performance
deprived the defendant of a fair trial, a trial whose result is reliable. Grier, 171
Wn.2d at 32-33. This showing is made when there is a reasonable probability that,
3 No. 84027-4-I/4
but for counsel’s errors, the result of the trial would have been different. State v.
Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Circumstances converge to make the failure to redact the medication list
prejudicial deficient performance in this case. First, three healthcare professionals
had disclosed their expertise during jury selection and had been empaneled on the
jury: a hospital social worker, a behavioral health nurse, and a physician. Second,
Sheriff’s Deputy Austin Peterson transported Sykes to the police station in his
patrol car. Peterson testified Sykes’s demeanor was “unstable” with mood
fluctuations “from real highs to real lows” and “almost like a manic laughter to angry
yelling.” Peterson testified Sykes said, “ ‘I’m God. I don’t play that shit. I don’t
give a fuck if you like me or not.’ ” Third, this was Sykes’s third trial. The first two
had ended in mistrials due to jury deadlock, and the State offered Peterson’s patrol
car statements only at the third trial. This history is suggestive the patrol car
statements were significant to the outcome. In re Det. of Post, 170 Wn.2d 302,
315, 241 P.3d 1234 (2010) (conviction after new evidence in second trial). Fourth,
Sykes’s defense turned on the jury concluding the State had not disproved that at
the time of the assault Sykes “reasonably believ[ed]” he was about to be injured
and was “preventing or attempting to prevent an offense” against him.
Offering evidence without redacting its indication that Sykes received
antipsychotic medication was deficient performance under these circumstances.
Together with Peterson’s statements that Sykes identified himself as God, the
4 No. 84027-4-I/5
reference to the medication suggested Sykes was suffering from a mental health
episode at the time of the assault. And together with the defense depending on
Sykes’s rational use of lawful force, the first two trials ending in deadlock in the
absence of Peterson’s statements, and the jury’s evident focus on the medication
list, we are satisfied the trial was prejudicially affected by the failure to redact the
medication list.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 84027-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION DAVID DARRELL SYKES,
Appellant.
BIRK, J. — Because we conclude David Sykes’s criminal conviction was
affected by ineffective assistance of counsel, we reverse and remand.1
I
Evidence showed that on March 26, 2021, Sykes and another individual
later identified as Richard Moore physically fought one another on a bus, and
Moore was stabbed. After the stabbing, Sykes exited the bus. A sheriff’s deputy
located Sykes, who indicated, “Yeah, I did it,” asserting Moore had robbed him.
Three days earlier, Sykes had reported to police that two assailants had attempted
to rob him. A deputy testified Sykes asserted Moore had been one of the
assailants, and that he stabbed Moore in self-defense.
1 On June 26, 2023, Sykes filed a pro se motion seeking dismissal of the
charges against him with prejudice. He does not provide a justification for this relief, and we deny his motion. On July 28, 2023, Sykes filed a pro se motion seeking reversal of his conviction. In light of our disposition, we deem this motion moot. No. 84027-4-I/2
To support his self-defense claim, Sykes introduced exhibit 17, a partially
redacted medical chart note from March 23, 2021. According to the chart note,
Sykes reported he had been assailed by two men attempting to rob him. The
exhibit included a medication list, among other medical data. During deliberations,
the jury submitted a question asking in part, “Can we consider # 17 Sykes
medication list? There seems to be antipsychotic meds.” Defense counsel initially
was uncertain which listed medication was being referenced, but it later became
evident the jury was referring to the drug olanzapine. Based on concern healthcare
professionals seated on the jury were applying specialized expertise not admitted
in evidence, the trial court instructed the jury:
You may consider Exhibit #17 in its entirety. However, your deliberations must be based on the evidence in the case and the law given to you by the court. The evidence that you are to consider during your deliberations consists of the testimony that you have heard from witnesses, stipulations, and the exhibits that I have admitted during the trial. You are not permitted to apply highly specialized knowledge during your deliberations that you may have gained as a result of professional or personal experience.
The jury returned a guilty verdict.
In a posttrial motion for a mistrial, Sykes’s counsel offered several
statements attributed to jurors to attempt to show jury misconduct affecting the
verdict. A court may consider affidavits of jurors only to the extent they do not
attest to matters that inhere in the verdict. Richards v. Overlake Hosp. Med. Ctr.,
59 Wn. App. 266, 272, 796 P.2d 737 (1990). Jurors’ statements inhere in the
verdict if the facts alleged are linked to the juror’s motive, intent, or belief, or
describe their effect on the juror. Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d
2 No. 84027-4-I/3
651, 379 P.2d 918 (1962). The proffered juror statements in this case inhered in
the verdict except to the extent they established the extrinsic fact that olanzapine
is an antipsychotic medication. In addition, in denying the motion, the trial court
concluded that knowledge that olanzapine is an antipsychotic is not specialized
knowledge. The State maintains the trial court did not abuse its discretion in so
concluding.
Sykes asserts his counsel’s neglect to redact the medication list was
ineffective assistance of counsel. To establish ineffective assistance of counsel,
a defendant must show that counsel performed deficiently and that the deficient
performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Review is de novo. State v. Wafford,
199 Wn. App. 32, 41, 397 P.3d 926 (2017). Counsel’s performance is deficient if
counsel erred so seriously that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. State v. Grier, 171 Wn.2d 17, 32-33, 246
P.3d 1260 (2011). We presume effective representation and require the defendant
to show the absence of legitimate strategic or tactical reasons for the challenged
conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
Counsel’s performance is evaluated based on the entire record. Id. at 335. To
show prejudice, the defendant must show counsel’s deficient performance
deprived the defendant of a fair trial, a trial whose result is reliable. Grier, 171
Wn.2d at 32-33. This showing is made when there is a reasonable probability that,
3 No. 84027-4-I/4
but for counsel’s errors, the result of the trial would have been different. State v.
Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Circumstances converge to make the failure to redact the medication list
prejudicial deficient performance in this case. First, three healthcare professionals
had disclosed their expertise during jury selection and had been empaneled on the
jury: a hospital social worker, a behavioral health nurse, and a physician. Second,
Sheriff’s Deputy Austin Peterson transported Sykes to the police station in his
patrol car. Peterson testified Sykes’s demeanor was “unstable” with mood
fluctuations “from real highs to real lows” and “almost like a manic laughter to angry
yelling.” Peterson testified Sykes said, “ ‘I’m God. I don’t play that shit. I don’t
give a fuck if you like me or not.’ ” Third, this was Sykes’s third trial. The first two
had ended in mistrials due to jury deadlock, and the State offered Peterson’s patrol
car statements only at the third trial. This history is suggestive the patrol car
statements were significant to the outcome. In re Det. of Post, 170 Wn.2d 302,
315, 241 P.3d 1234 (2010) (conviction after new evidence in second trial). Fourth,
Sykes’s defense turned on the jury concluding the State had not disproved that at
the time of the assault Sykes “reasonably believ[ed]” he was about to be injured
and was “preventing or attempting to prevent an offense” against him.
Offering evidence without redacting its indication that Sykes received
antipsychotic medication was deficient performance under these circumstances.
Together with Peterson’s statements that Sykes identified himself as God, the
4 No. 84027-4-I/5
reference to the medication suggested Sykes was suffering from a mental health
episode at the time of the assault. And together with the defense depending on
Sykes’s rational use of lawful force, the first two trials ending in deadlock in the
absence of Peterson’s statements, and the jury’s evident focus on the medication
list, we are satisfied the trial was prejudicially affected by the failure to redact the
medication list. The State does not contend the failure to redact the medication
list was a reasonable strategy or tactic, and exhibit 17 was already partially
redacted without objection. No party asserts and we do not hold the instruction
given during deliberations was error, but it maintained exhibit 17 within the jury’s
consideration. Relevant to ineffective assistance of counsel, it therefore did not
alleviate the prejudice from defense counsel’s failure to redact the medication list.
Sykes has demonstrated ineffective assistance of counsel.
II
Because the issue is likely to arise in the event of retrial, we address Sykes’s
contention that the trial court erred by sustaining the State’s hearsay objection to
certain of Sykes’s statements he offered. After Peterson testified to Sykes’s
unstable demeanor and statement identifying himself as God described above,
Sykes sought to elicit on cross-examination statements noted in Peterson’s report
that Sykes claimed he had been robbed. The court sustained the State’s hearsay
objection.
Under ER 106, a party may supplement portions of a writing or recorded
statement offered by an adverse party with other relevant portions as fairness
5 No. 84027-4-I/6
requires. State v. Simms, 151 Wn. App. 677, 692, 214 P.3d 919 (2009). When an
adverse party has opened the door to a subject at trial, the court may “admit
evidence on a topic that would normally be excluded for reasons of policy or undue
prejudice when raised by the party who would ordinarily benefit from exclusion.”
State v. Rushworth, 12 Wn. App. 2d 466, 473, 458 P.3d 1192 (2020). The trial
court ruled that neither principle allowed Sykes to introduce his other statements
to Peterson based on the statements the State elicited. We review this ruling for
abuse of discretion and find none here. State v. Darden, 145 Wn.2d 612, 619, 41
P.3d 1189 (2002) (admissibility rulings reviewed for abuse of discretion).
It was tenable for the trial court to conclude the additional statements Sykes
sought to offer were not necessary to explain, place in context, or correct a
misimpression or unfair implication caused by the statements the State elicited
from Peterson. Other law enforcement witnesses who had testified earlier had
already related Sykes’s agitation over his having been robbed and then having
encountered, he said, the same assailant. Sykes later called a police officer to
whom he had reported the attempted robbery three days before. The statements
Sykes wished to offer from Peterson were additional to the statements the State
elicited, but not explanatory, and would have been cumulative of other evidence
robustly represented in the record. Because we affirm the trial court’s ruling that
neither ER 106 nor the opening-the-door principle justified admitting the additional
statements, we need not reach the question disputed by the parties, whether ER
106 applies to Peterson’s testimony relating Sykes’s statements.
6 No. 84027-4-I/7
We do not reach Sykes’s remaining claims of error.
Reversed and remanded.
WE CONCUR: