State v. Livnat

STATE OF WASHINGTON, Appellant, v. YANIV LIVNAT, Respondent.

No. 84630-2-I

Court of Appeals of Washington, Division 1

February 21, 2023

UNPUBLISHED OPINION

DWYER J.

Criminal Rule (CrR) 8.3(b) permits a trial court to dismiss a criminal prosecution due to "governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial." The behavior of a witness not employed by the State does not, by itself, constitute "governmental misconduct" within the ambit of this rule.

Here the sole basis for the trial court's dismissal of the prosecution was the misconduct of a witness not employed by the State. Because dismissal was impermissible on this basis we reverse the dismissal order and remand for further proceedings.

I

The State charged Yaniv Livnat with assault of a child in the second degree, residential burglary, assault in the fourth degree, malicious mischief in the third degree, and interfering with the reporting of domestic violence, for an incident that occurred on February 26, 2020 involving Livnat's 12-year-old son S.L. at the home of Livnat's ex-wife Shalaine Fernandez.

The parties argued motions in limine on October 19, 2021. One of Livnat's motions in limine requested that the trial court exclude "evidence of other uncharged, alleged misconduct by [the] defendant."^[1] The State agreed that the motion should be granted, but noted for the record:

I do plan on eliciting testimony from Ms. Fernandez that Mr Livnat was not allowed to the house or to come over to the house. But I don't plan on eliciting the reasons for that unless [defense counsel] wants to get into that. And that goes directly towards the elements of the burglary charge Your Honor.

The trial court granted Livnat's motion. Thereafter, the State spoke to Fernandez for approximately 35 minutes and advised her of the court's rulings.

Trial commenced on October 25, 2021. The State's first witness was S.L. Following S.L.'s testimony, the State called Fernandez to the stand. Fernandez testified that on the day of the incident, Livnat was angry and threatening her. The prosecutor asked Fernandez whether there was something that led her to believe that Livnat was angry. Fernandez responded, "Just his -- the way he was saying it and what he was -- yeah. I know him. I haven't seen him that angry since -- he attacked me. So, yeah." Livnat immediately objected and moved to strike her response. The trial court struck the testimony and instructed the jury to ignore it. Fernandez then volunteered without a question being posed, "So I just know him. So, yeah, I was terrified at how angry he was."

The prosecutor next asked whether Livnat then left the scene. Fernandez responded that he had. The prosecutor followed that question by asking Fernandez whether she had called the police. Fernandez answered:

That's kind of foggy because I don't know if I grabbed the phone. I was terrified because this is traumatic for me, and, like, PTSD for me. So I was shaking already, not knowing what happened. I don't know if I called the police or I told my friend "Call the police." I just couldn't think straight so I may have had somebody else call for me.

Livnat did not object.

During her direct examination, Fernandez frequently gave long narrative answers to simple questions, often volunteering unsolicited information. At one point, Fernandez again began testifying without any question having been asked. After Livnat objected, the trial court admonished Fernandez:

A. And I don't know what I said in between that time --

[DEFENSE COUNSEL]: Your Honor, I'm to going object.

THE WITNESS: -- but I was frustrated --

[DEFENSE COUNSEL]: There's no question before the witness. She's just offering up --

THE COURT: Yes. Please only answer --

THE WITNESS: Don't offer more information? Okay.

THE COURT: -- the question that's asked.

THE WITNESS: Okay.

THE COURT: I will strike the last statement.

THE WITNESS: I'm a woman.

[PROSECUTOR]: Pauses are okay.

THE WITNESS: Yes.

[PROSECUTOR]: If no one is talking, you don't have to fill in the space. Okay?

THE WITNESS: Okay.

Livnat then began his cross-examination of Fernandez. After providing a few straightforward answers, Fernandez returned to volunteering information that was not responsive to the questions posed. For example, in response to a question asking whether she had sent the text messages depicted in an exhibit, Fernandez answered as follows:

Yeah. And I remember kind of like a cry out, to see maybe somebody can help, because I'm at my wit's end, which -- not meaning these things. I wanted, kind of, Yaniv to -- having not anyone, you know, to talk me out of it, like, you're not making sense. And that's exactly what he said here. You're not making any sense right no[w].

After a few such narrative answers, Livnat's counsel admonished the witness: "I just need you to answer my questions, okay? I need you to not introduce information. That's not how it works. I ask questions and then . . . you answer them." Fernandez attempted to speak over Livnat's counsel during this admonishment. Immediately after being admonished, Fernandez again gave a long narrative answer to a yes or no question, volunteering information about her and Livnat's relationship. Livnat objected and the court sustained the objection. The trial court once again directed her to only answer the question asked. Fernandez obeyed this directive for a short while, but soon began volunteering information again.

For instance, in response to a question about whether she knew Livnat intended to come to the house, Fernandez answered:

I didn't know when he was coming. I said if you want to speak to [S.L.] -- because, at the time, [S.L.] wasn't speaking to him at all for, like, two weeks because of how he had handled him. So -

Livnat objected and asked to address the trial court outside the presence of the jury. Fernandez again attempted to talk over counsel. Defense counsel had to yell "[s]top talking" in order to get Fernandez to stop.

Outside the presence of the jury, Livnat requested that the trial court strike Fernandez's testimony in its entirety and inform the jury to disregard her testimony in its entirety. The trial court indicated that, "at a minimum, I am going to strike the testimony of Ms. Fernandez." The trial court further indicated that it would consider declaring a mistrial, but that it would need to do research overnight before making that decision. The trial court then adjourned for the day.

Trial resumed the following day. Before the jury was called to the courtroom, Livnat renewed his motion to strike Fernandez's testimony. Livnat indicated that he did not want a mistrial:

What he's gone through to get to this point, both in expense and time away from his -- he hasn't been able to see his kid in 18 months. He's had supervised visits with his younger son that he pays for weekly to maintain contact with his son. So a mistrial would cause delay and cause significant hardship to my client and his ability to parent his kids. I do think there is a basis for the Court to dismiss the case outright under Criminal Rule 8.3, and that's any time that there's mismanagement, not by [the prosecutor], but by a State witness, that materially prejudices my client to get a fair determination of guilt or innocence.

And so I think what we saw yesterday allows the Court to do that, and I think that's probably appropriate. I know a limiting instruction, some courts have said it's sufficient, but Your Honor saw what happened yesterday and the intentional way that I think this witness did that. So I do think there's a basis under that for dismissal.

Livnat indicated that if the trial court did not believe that there was a sufficient basis for dismissal, he still would not be requesting a mistrial and would prefer to take his chances with the jury.

The State opposed the motion. In arguing against dismissal, the prosecutor stated: "What the Court's remedy was, in this case, I think was appropriate in that it struck all of the testimony of Ms. Fernandez." The court tabled the discussion until later in the day to permit the parties to conduct research on the standards for dismissal under CrR 8.3(b).

Trial then proceeded with the next four witnesses. The jury was instructed that the court had stricken Fernandez's testimony in its entirety, and the jurors were "directed to disregard it and should not consider it for any purpose."

After the day's witnesses had testified, when the trial court returned to discussion of Livnat's motion to dismiss, the State once again conceded that striking Fernandez's testimony was "appropriate and well thought out by Counsel and the Court." The State then argued that because the trial court had already stricken Fernandez's testimony, Livnat could not demonstrate any actual prejudice warranting dismissal. Specifically, the prosecutor stated:

And I think that's a big distinction, wherein other cases where, you know, they may need to parse through what Ms. Fernandez said and can we consider that and can we not. And that really just invites prejudice or invites the jury to focus on things that maybe they shouldn't be. But here, it is blatant. It is clear to the jury; you can't consider one thing that Ms. Fernandez said. And I think that that remedy was appropriate to cure actual prejudice in this case.

The trial court determined that, while the State had not committed misconduct, Fernandez's conduct was deliberate and "[h]er conduct was such that yes, an attorney had to basically yell stop."

On October 27, 2021, the trial court entered an order pursuant to CrR 8.3(b), dismissing the case against Livnat. The trial court entered findings of fact and...