State v. Lile

188 Wash.2d 766

398 P.3d 1052

STATE of Washington, Respondent,

v.Travis Lee LILE, Petitioner.

No. 93035-0

Supreme Court of Washington.

FILED JULY 20, 2017

FAIRHURST, C.J.

¶ 1 Travis Lee Lile appeals his convictions for multiple assaults and resisting arrest. A jury found beyond a reasonable doubt that Lile, acting as the aggressor, attacked Christopher Rowles and Amanda Millman and then struck Bellingham Police Officer Jeremy Woodward while the officer attempted to arrest Lile for assaulting Rowles and Millman. The Court of Appeals affirmed after holding that the trial court committed nonreversible error in improperly denying Lile's timely affidavit of prejudice filed in accordance with RCW 4.12.050. State v. Lile , 193 Wash.App. 179, 373 P.3d 247 (2016).

¶ 2 We granted Lile's petition for review and the State's cross petition for review on two issues: (1) judicial disqualification and (2) the trial court's exclusion of evidence impeaching Rowles' asserted nonviolent nature. State v. Lile , 186 Wash.2d 1016, 380 P.3d 523 (2016). We affirm the Court of Appeals on both issues because in neither instance did the trial court commit error. Although we are affirming, we reverse the Court of Appeals holding that the trial court's ruling on an agreed continuance was not discretionary.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background

¶ 3 Two intoxicated groups crossed paths on a Bellingham sidewalk one evening in 2013. Millman and Alyssa Powell walked in one direction, ahead of their companions Rowles and Taylor Powell. Alyssa Powell was particularly intoxicated, stumbling as she walked. United States Navy sailors Lile, Sean Duff, and Allen Owens, along with civilian Cameron Moore, walked in the opposite direction. Lile's group had recently left a party in which Lile had admittedly consumed "four, maybe five beers" and "a shot-and-a-half of Crown" over a period of "about five hours." 6 Verbatim Report of Proceedings (VRP) (Mar. 25, 2014) at 865.¹

¶ 4 Alyssa Powell allegedly bumped Lile as they passed.² Lile turned around, exchanging words with the women while he continued walking backwards. When Lile reached Rowles and Taylor Powell, he made contact with Rowles, pushing Lile forward. Rowles claimed any contact was incidental. Duff and Moore indicated that Rowles appeared to change direction as Lile approached and "shoulder check[ed]" Lile as their paths met. 5 VRP (Mar. 24, 2014) at 668, 776.

¶ 5 Lile next exchanged words with Rowles and Taylor Powell as he regained his balance and turned around to face them. Lile claims they were "into [his] face."³ 6 VRP at 868. Lile then punched Rowles in the face. The vast majority of the testimony indicates that neither Rowles nor Taylor Powell made any aggressive moves toward Lile or his three male companions up to this point. Furthermore, no one—including Lile—disputes that Lile threw the first punch. A scuffle ensued between the men in the two groups.

¶ 6 Millman approached the scuffling men, urging them to stop. Lile hit her in the face, fracturing her jaw, knocking out some teeth, concussing her, and rendering her briefly unconscious. Owens then pulled Lile from the fracas, and they began to walk away.

¶ 7 Officer Woodward was patrolling the area in his police cruiser and noticed the verbal altercation before blows began. He parked his vehicle some 40 yards away and responded on foot after observing Lile punch Rowles. Officer Woodward saw Lile strike Millman as the officer continued toward the fracas. By the time Officer Woodward reached the group, Lile was walking away.

¶ 8 Officer Woodward told Lile to " ‘stop, police. You're under arrest.’ " 2 VRP (Mar. 17, 2014) at 106. Officer Woodward attempted to grab Lile, who took flight. A chase ensued. Once he reached Lile, Officer Woodward jumped onto Lile's back. Lile struggled, striking Officer Woodward in the face. Officer Josh McKissick arrived shortly thereafter and assisted Officer Woodward in finally subduing and arresting Lile.

B. Criminal proceeding

¶ 9 Lile was charged with assaulting Millman, Rowles, and Officer Woodward. He was also charged with resisting arrest. Whatcom County Superior Court Judge Ira Uhrig was initially assigned the criminal case, setting the matter for a January 22, 2014 status hearing and a February 3, 2014 trial.⁴ During the January 22, 2014 status hearing, Lile's attorney informed Judge Uhrig that "[the prosecuting attorney] and I were talking about the case and we propose to move the case one week." VRP (Jan. 22, 2014) at 3. Judge Uhrig orally granted the continuance, issuing a written order to that effect February 3, 2014. On February 4, 2014, Lile's attorney submitted a motion to sever, asking the court to order separate trials for Lile's alleged assaults on Millman and Rowles from his assault on Officer Woodward. During the February 6, 2014 status hearing, before Judge Uhrig ruled on the motion to sever, Lile's attorney informed Judge Uhrig that Lile had filed an affidavit of prejudice against him.

¶ 10 The prosecuting attorney asserted the affidavit was not timely under RCW 4.12.050 because Judge Uhrig's ruling on the January 22, 2014 continuance motion preceded the affidavit and was discretionary.

¶ 11 Lile's attorney explained:

What happened was this was the Super Bowl weekend. [The prosecuting attorney] came up and said do you want to continue this for a week? It would [not] be a problem. I said no problem ... [s]o, we came before the court and presented the order in that context.

VRP (Feb. 6, 2014) at 13. Judge Uhrig indicated the continuance ruling was discretionary, as he had denied such requests in the past. As a result, he ruled the affidavit untimely. He then denied Lile's motion to sever. Lile did not later renew the motion to sever, an option provided by CrR 4.4(a)(2).

¶ 12 Additional delays occurred because a number of witnesses were serving in the navy. Their appearances had to be coordinated and arranged. Judge Uhrig indicated in his final status hearing the delays in Lile's proceeding had created a potential conflict with another case. Judge Uhrig was unable to preside over Lile's trial. The case was transferred to Judge Deborra Garrett, one of two other Whatcom County Superior Court Judges. Judge Garrett heard Lile's remaining pretrial motions.

¶ 13 Lile submitted a motion in limine to Judge Garrett to introduce evidence, for purposes articulated in ER 404(b), of prior protection orders and related petitions against Rowles submitted by Nicole Foster, a past girlfriend of Rowles. Judge Garrett denied the motion, finding the "prior bad actions ... [not] sufficiently similar to the events that occurred in this case[ ] that a common scheme or plan can be deduced from them." 1 VRP (Mar. 13, 2014) at 12; see ER 404(b). Lile did not seek our review on this pretrial ruling.

¶ 14 About a week later, once the trial began, Rowles provided the following testimony on direct examination:

Q. Well, how come you didn't like defend yourself [before Lile punched you]?

A. Everything kind of caught me by surprise.... I don't get into too many fights. I don't think I've ever been in a fight....

Q. Did you have time to get your hands up or—

A. No.

Q. —do anything?

4 VRP (Mar. 19, 2014) at 508. During cross-examination, Rowles provided the following testimony:

Q. Okay. And did [the verbal altercation between Lile and the women] cause you concern?

A. A little bit. You know, it's words though, I mean they don't really hurt people to a point so I just, I'm not a fighting guy so I just let things kind of roll of my chest here.

Id. at 528.

Q. Are you punching back?

A. No.

Q. Why not?

A. Still a little in shock. I didn't, I'm not a fighter. I didn't want to be a fighter.

Id. at 538. Lile asserted to the court that these statements "[gave] the impression [Rowles is] a man of peace ... that opens the door to bring up ... those harassment[ ] [petitions filed by Foster] because those constitute fighting." Id. at 543. "I don't believe it comes [in] under [ ER 404(b) ], we already lost that. This is purely a simple [matter of] whether I'm allowed to follow up logical cross-examination based on the statement" for purposes of impeachment pursuant to ER 608(b)(1). Id. at 545. Lile provided an offer of proof—domestic abuse allegations contained in Foster's most recent petition for a protection order. The court denied Lile's request. It held that the allegations contained in the petition were irrelevant to Rowles' credibility and collateral to the events at issue in this case.

¶ 15 Lile was convicted on all charges. Judge Garrett entered a judgment and sentence consistent with Lile's conviction.

C. Appellate proceeding

¶ 16 Lile raised a number of issues on appeal. The Court of Appeals affirmed all issues. Lile , 193 Wash.App. at 214, 373 P.3d 247. It held that the trial court's ruling on the continuance was nondiscretionary, but that the trial court's error in denying Lile's affidavit of prejudice was not a basis for reversal because Judge Uhrig did not preside over Lile's trial and Lile had an opportunity to renew his motion to sever pursuant to CrR 4.4(a)(2) with Judge Garrett. Id. at 193-97, 373 P.3d 247.

¶ 17 Lile petitioned for review on eight issues, and the State cross petitioned on one. We accepted review only on the affidavit of prejudice and impeachment issues. Order, State v. Lile , No. 93035-0, 186 Wash.2d 1016, 380 P.3d 523 (Wash. Sept. 29, 2016). Supplemental briefing followed. Lile agrees with the Court of Appeals that the ruling on the continuance was not discretionary, but argues the trial court's error was a basis for reversal. The State argues the ruling was discretionary and the affidavit of prejudice was not timely; therefore, Judge Uhrig was qualified to rule on the severance motion. Lile disagrees with the Court of Appeals holding that Judge Garrett did not abuse her discretion in precluding impeachment of Rowles using allegations contained in the protection order petition.

II. ISSUES

¶ 18 1. Was the joint ...