IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
COMMISSIONER ERIC WATNESS, as personal representative of the estate of No. 78819-1-I Charleena Lyles; KAREN CLARK, as guardian ad item on behalf of the four DIVISION ONE minor children of decedent, UNPUBLISHED OPINION Plaintiffs,
V.
THE CITY OF SEATTLE, a municipality; JASON M. ANDERSON and STEVEN A. MCNEW, individually
Respondents,
SOLID GROUND, a Washington nonprofit corporation,
Defendant,
KAREN KOEHLER and EDWARD MOORE, plaintiffs’ attorneys,
Appellants. FILED: December 30, 2019
APPELWICK, C.J. — This appeal arises from a negligence suit filed on behalf
of Lyles’s estate. On June 18, 2018, Lyles was shot by two SPD officers and died
as a result of her injuries. Koehler and Moore, counsel for Lyles’s estate, filed a
motion under RCW 9.72.090, alleging that one of the officers had committed
perjury during a deposition. The motion requested that the trial court refer the
matter to the appropriate prosecuting attorney’s office. In response, the No. 78819-1-1/2
respondents moved for CR 11 sanctions against Koehler and Moore, alleging that
the motion was not well grounded in fact or existing law, and lacked good faith
arguments. The trial court granted the respondents’ motion and imposed CR 11
sanctions. Koehler and Moore raise several issues on appeal, arguing in part that
the trial court deprived them of due process, erred in excluding its expert witness,
abused its discretion in imposing sanctions, and violated their First Amendment
rights. We affirm the imposition of sanctions, but reverse as to the trial court’s
evidentiary ruling excluding the expert.
FACTS
On June 18, 2017, Charleena Lyles called 911 to report a burglary. In
response, Seattle Police Department (SPD) officers Jason Anderson and Steven
McNew were dispatched to her home. After Anderson and McNew arrived, the
situation quickly escalated, and they shot Lyles seven times. SPD’s Force
Investigation Team (FIT) was then dispatched to the scene. Lyles died as a result
of her injuries.
During the incident, Anderson and McNew used in-car video (ICV) systems
that made an audio recording of their actions. Later that day, SPD obtained
surveillance video of the shooting from the Solid Ground Housing complex, which
maintained and controlled the video system outside Lyles’s apartment. SPD video
specialists then redacted and recoded the audio and video for public release.
FIT publicly released the video on June 19, 2017. The SPD media relations
unit uploaded the video to YouTube,1 which involved another proprietary
1 “YouTube” is a social media platform for viewing and sharing videos.
2 No. 78819-1-1/3
transcoding process. King 5 News later synchronized the audio and video,
matching the sound of gunshots to a visual of Anderson in the hall outside Lyles’s
apartment.
FIT interviewed Anderson on June 20 and 22, 2017. During the interview,
Anderson described firing his weapon toward Lyles from standing in the doorway
of her apartment. Before doing so, he stated that Lyles had tried to stab him,
stepped back into her living room, and “proceeded to come around
the . . . peninsula of the kitchen towards Officer McNew, who did not have an
escape route.” He also stated that the door to her apartment was closed.
On September 8, 2017, Commissioner Eric Watness, as personal
representative of Lyles’s estate, and Karen Clark, as guardian ad litem of her four
minor children, sued Anderson and McNew for negligence and wrongful death.2
They later added the City of Seattle and Solid Ground as defendants.
On February 2, 2018, the trial court entered a stipulated protective order
regarding discovery materials. With regard to deposition testimony, paragraph
5.2(b) of the order stated,
[T]he parties must identify on the record, during the deposition, all protected testimony, without prejudice to their right to so designate other testimony after reviewing the transcript. Any party or non-party may, within thirty (30) days after receiving a deposition transcript, designate portions of the transcript, or exhibits thereto, as confidential.
The parties do not provide a citation to the original or amended complaints, 2 and we were not able to locate them in the record.
3 No. 78819-1 -114
It also provided that ‘disclosure or discovery material that qualifies for protection
under this agreement must be clearly so designated before or when the material
is disclosed or produced.”
Karen Koehler, counsel for the plaintiffs, deposed Anderson on February 13
and April 26, 2018. During the April 26 deposition, Koehler focused her questions
on whether Anderson was inside Lyles’s apartment at the time of the shooting.
She repeatedly asked him about his position relative to the door to Lyles’s
apartment and the hallway outside her apartment when the shots were fired:
Q Well, looking at the transcript, did you step out of the door before or after the shots were fired? A After-
Q (By Ms. Koehler) So if we go to after the shots were fired, did you step out of the door before Officer McNew said, Suspect is down, we need officers on-scene. A I’m sorry. I don’t I don’t know exactly at what point I stepped --
outside of the door other than it was after the shots were fired. I don’t know if it’s my memory is not clear of exactly what --
point. Q How do you know that you stepped out of the door after the shots were fired? A I remember opening the door, opening the door with the thought of how do we get the children out of the apartment, trying to assess how we’re going to do that safely. In describing the moments before the shooting, Anderson also stated, “I
sidestepped to my left slightly to be in front of the closed door of the apartment,
trying to create more distance and gain some more time to assess what was going
on.” Koehler stated in a declaration that, during the deposition she told Anderson
4 No. 78819-1 -1/5
that it “looked like he was shooting in the hail,” based on the surveillance video.3
Anderson did not change his testimony based on her observation.
After Anderson’s deposition, Koehier asked her co-counsel, Edward Moore,
to have the redacted ICV audio recording and hallway surveillance video synchronized by an expert. Dr. Wilson “Toby” Hayes, a biomechanical engineer,
completed this synchronization on May 8, 2018. He concluded,
7. It is my opinion, on a more probable than not basis, that the synchronized video is an accurate depiction of what occurred between Charleena Lyles and Officers McNew and Anderson. 8. The synchronized video and audio accurately depict Officer Anderson’s actions at the time the gunshots are heard. The synchronized video and audio accurately depict Officer Anderson in the open doorway and the hallway at the only time that gunshots can be heard. Koehler received the synchronized videos on May 16, and asked her associate to
locate the unredacted videos on May 17.
Based on the synchronized videos, Koehler grew concerned that Anderson
had committed perjury during his deposition when he stated that he had his back
to a closed door inside Lyles’s apartment at the time of the shooting. She
considered writing a letter to the prosecuting attorney regarding this concern:
I wrote the letter on May 17, 2018. It was directed to the applicable public officials and requested not only that the matter be forwarded to the prosecutor, but that the FIT, [Force Review Board (F RB)], [and Crime Scene Investigation Unit (CSI)] investigations all be reopened. I then sat on the letter on advice of Mr. Moore as we were not sure if it was the correct approach to take. Most importantly, 30 days had not run regarding confidentiality of the deposition of Officer Anderson and the letter did not refer to the deposition as a result. We also wanted to make sure that all of the video issues were resolved. I communicated also on May 17, that I needed to be exactly 100%
~ The referenced portion of the Anderson deposition is not in the record.
5 No. 78819-1-1/6
sure what was synchronized and that the letter would not be sent until I was 1 00% positive the officer was shooting in the hall. I had watched that video 20 times and it looked beyond doubt but I wanted to be sure. I asked Ms. Nguyen to continue to follow-up regarding the unredacted videos so those could also be synchronized. (Footnote omitted.) She did not have the unredacted videos synchronized.
A few weeks later, Koehler decided that the best course of action would be
to file a motion under RCW 9.72.090:
I re-read all of the perjury statutes. This is when I zeroed in on the language of RCW 9.72.090. I read it over and over. This statute provided a mechanism for referring the charge of perjury to the prosecutor. The difference was that it empowered the judge to do so. This made enormous sense to me. Instead of writing a letter and asking the prosecutor to find perjury, I could apply directly to the court. This felt like a better and more reasonable course of action to take. On June 18, 2018, the one year anniversary of Lyles’s death, the appellants filed
a motion for a finding that Anderson committed perjury, and for transmittal to the
prosecuting attorney pursuant to RCW 9.72.090. They did not request that the
motion be heard with oral argument. Both Koehler and Moore signed the motion.
The plaintiffs filed the motion at 1:26 p.m. Koehler provided a copy of the
motion to the media after filing. By 1:55 p.m., Alex Rozier of King 5 News tweeted
a screen capture of the motion with the hashtag, “#BREAKING.” The motion had
not yet been served. At approximately 2:03 p.m., a paralegal at Koehier and
Moore’s law firm began the steps to electronically serve the motion on the
defendants. That day, Koehler retweeted Rozier’s post with the hashtags
“#sàyhername” and “#CharleenaLyles.” She also retweeted several news articles
regarding the case. And, she tweeted, “One year ago Charleena Lyles was shot
6 No. 78819-1-1/7
to death in her own home by the police. Today we honor her memory and children
by relentlessly fighting to uncover the truth of what happened.”
On June 22, 2018, in response to the plaintiffs’ motion, the defendants filed
a motion for CR 11 sanctions, and a motion to strike inadmissible materials. They
provided notice of the motion to Koehler and Moore the day before. In the motion,
they alleged that Koehler and Moore
[vjiolate[d] CR 11 by filing a motion that is not well grounded in fact or existing law and lacks good faith arguments. Aside from its true purpose of garnering media attention for Ms. Koehier and Mr. Moore, this motion is intended to harass Defendants, needlessly increase defense costs in the subject litigation, and materially prejudice this proceeding by publicly attacking the character and credibility of a party. They requested oral argument, but did not note the motion.
On June 25, the plaintiffs filed a reply, arguing in part that the defendants’
motion violated King County Local Rule (KCLR) 7(b)(4)(A) and (5)(A), would
prejudice them and their counsel, and was not noted. The plaintiffs did not request
oral argument in their reply.
On June 26, 2018, the trial court denied the plaintiffs’ motion and granted
the defendants’ motions without oral argument. The plaintiffs then filed a motion
for reconsideration. Again, they did not request oral argument. They attached
several declarations to their motion, including declarations from attorneys James
Lobsenz and Peter Jarvis. Lobsenz and Jarvis argued in part that the defendants’
assertion that the plaintiffs’ motion lacked legal support was erroneous.
On July 26, 2018, the trial court entered another order granting the
defendants’ motions. It found that “Ms. Koehler and Mr. Moore’s motion has no
7 No. 78819-1-1/8
basis in existing law or the facts of this case.” And, it found that “[t]he motion lacks
good faith arguments and serves no purpose other than to harass Defendants,
generate media attention, inflame the public, and materially prejudice these
proceedings and defendant’s right to a fair trial.” It stated that it had considered
the declarations the plaintiffs attached to their motion for reconsideration. It also
ordered Koehler and Moore to pay the defendants “reasonable fees and expenses
in the amount of $24,469.68.”
Koehler and Moore appeal.
DISCUSSION
The appellants4 make four main arguments. First, they argue that the trial
court deprived them of due process by ruling on the motion for sanctions without
affording them a reasonable opportunity to respond. Second, they argue that the
trial court abused its discretion in granting the motion for CR 11 sanctions. In doing
so, they contend that (1) certain factual findings were not supported by substantial
evidence, and (2) Koehler’s interactions with the media did not violate RPC 3.6.
Third, they argue that Hayes’s declaration satisfied ER 702 and Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923). Fourth, they argue that the trial court’s orders
violated their First Amendment rights and prejudiced their client’s right of
representation.5
~ We refer to Koehier and Moore collectively as “the appellants.” ~ The appellants also argue that they complied with the discovery rules with regard to disclosing Hayes as an expert. It is unclear if their argument is meant to refer to a conclusion drawn by the trial court, because they provide no citation to the record. In fact, their entire argument includes no citations to the record or legal authority, contrary to RAP 10.3(a)(6). As a result, we do not consider this argument.
8 No. 78819-1-1/9
I. Due Process
The appellants argue first that the trial court deprived them of due process
by ruling on the motion for sanctions without affording them a reasonable
opportunity to respond.
CR 11 procedures must comport with due process requirements. Bryant v.
Joseph Tree, Inc., 119 Wn.2d 210, 224, 829 P.2d 1099 (1992). “Due process
requires notice and an opportunity to be heard before a governmental deprivation
of a property interest.” k~. As a result, a party seeking CR 11 sanctions should
“give notice to the court and the offending party promptly upon discovering a basis
for doing so.” ki. We review questions of law, including constitutional due process
guaranties, de novo. State v. Derenoff, 182 Wn. App. 458, 465, 332 P.3d 1001
(2014).
The appellants argue that “the trial judge failed to notify Plaintiff’s counsel
that she was considering sanctions against them.” On June 21, 2018, counsel for
the respondents6 e-mailed the appellants a copy of their sanctions motion. Koehler
responded to the e-mail that same day. The respondents filed the motion for
sanctions on June 22, and the appellants filed a reply on June 25. The trial court
granted the motion on June 26. Accordingly, the appellants were on notice that
the trial court would be considering sanctions. Although the respondents also
requested oral argument, the trial court did not order oral argument before
imposing sanctions. Notably, the appellants never requested oral argument.
We refer collectively to the City of Seattle, Anderson, and McNew as “the 6 respondents.”
9 No. 78819-1-1/10
The respondents compare this case to Bryant. There, the State Supreme
Court held that Balm’s due process rights were not violated when Rosenberg and
Koch requested CR 11 sanctions in their appellants’ reply brief, and cited Bolin’s
motion to disqualify as a basis for sanctions. Bryant, 119 Wn.2d at 224. The court
noted that Rosenberg and Koch “provided Bolin with notice prior to oral argument
that they were seeking CR 11 sanctions.” Id. And, at oral argument, “Bolin had
the opportunity to be heard on the issue.” j.çj~
The respondents here requested CR 11 sanctions in response to the
appellants’ perjury motion. The basis for the respondents’ sanctions request was
clear. The respondents argued that the appellants’ perjury motion was “not well
grounded in fact or existing law and lack[ed] good faith arguments.” Thus, similar
to Bryant, they made their request in a responsive brief. The appellants received
a copy of the motion for sanctions a day before it was filed. They responded to the
motion for sanctions four days later in their reply brief. They objected to the motion
on procedural grounds.
The appellants had another opportunity to be heard on the issue in their
motion for reconsideration. They attached several declarations in support of the
motion. The trial court considered the declarations before, again, imposing CR 11
sanctions.
The appellants contend that the respondents violated CR 7 and KCLR 7.
Specifically, they argue that because the respondents did not serve the motion for
sanctions at least six days before it was considered, did not note the motion, and
did not file a notice to shorten time, they violated KCLR 7(b)(4)(A), 7(b)(5)(A), and
10 No. 78819-1-I/il
7(b)(10). Assuming without deciding that these rules apply on these facts, the
appellants have not demonstrated that they were prejudiced in their ability to
defend against the motion.
The trial court did not deprive the appellants of due process.7
II. CR11 Sanctions
The appellants argue second that the trial court abused its discretion in
granting the respondents’ request for CR 11 sanctions. They also challenge
several of the trial court’s findings of fact, and its conclusion that Koehler violated
RPC 3.6.
We review a trial court’s decision to impose or deny CR ii sanctions for an
abuse of discretion. Bldg. lndus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720,
745, 218 P.3d 196 (2009). The trial court abuses its discretion where its conclusion
was the result of an exercise of discretion that was manifestly unreasonable or
based on untenable grounds or reasons. Skimming v. Boxer, 119 Wn. App. 748,
754, 82 P.3d 707 (2004).
A. Substantial Evidence
The appellants argue that three of the trial court’s factual findings are not
supported by substantial evidence.
~ The appellants note that it is “unclear whether the judge ever considered (or ruled upon) [the motion for reconsideration].” Although the second order imposing sanctions states that the trial court considered the declarations attached to the appellants’ motion for reconsideration, it does not explicitly deny that motion. Still, because the court considered those declarations, we construe the order as denying the motion.
ii No. 78819-1-1112
This court reviews the trial court’s findings of fact for substantial evidence.
Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162 (2010). Substantial
evidence is that which would persuade a fair-minded, rational person of the
declared premise. ~ A reviewing court will not disturb findings of fact that are
supported by substantial evidence, even if there is conflicting evidence. j~
Unchallenged findings are verities on appeal. j~ This court may affirm on any
basis supported by the evidence. Ladenburq v. Campbell, 56 Wn. App. 701, 703,
784 P.2d 1306 (1990).
First, the appellants state that “[respondents’] counsel accused Mr. Moore
of an intent to interact with the press,” yet “there is no evidence to support this
contention.” They assert that “Mr. Moore had no interaction whatsoever with the
press regarding the underlying motion.”
The trial court found that “Ms. Koehier and Mr. Moore, or someone acting
on their behalf, intentionally provided or alerted the media to the subject motion
before serving Defendants.” The plaintiffs filed the motion on June 18 at 1:26 p.m.
By 1:55 p.m., before the respondents had been served, Rozier of King 5 News
tweeted a screen capture of the motion. There is no evidence to suggest that
someone outside of Koehler and Moore’s firm had possession of the motion before
it was provided to the media.8 And, it is undisputed that the media had possession
of it before it was served on the respondents. Koehler admits that she provided a
copy of the motion to the media after filing. She does not specify when she did.
8 There is no suggestion or evidence that employees at the King County Superior Court Clerk’s Office provided copies of the motion to the media.
12 No. 78819-1-1/13
Moore states that he had “no role whatsoever in the press interaction regarding
the perjury motion.” Even if Moore himself did not provide a copy of the motion to
the media, Koehler and Moore are the two attorneys of record on the motion.
Substantial evidence supports the trial court’s finding.
Second, the appellants contend that it was error for the trial court to
conclude that “[appellants’] counsel had violated its protective order regarding the
dissemination to the media.”
The trial court found that “Ms. Koehier and Mr. Moore filed and disseminated
to the public portions of Officer Anderson’s video deposition before the time period
for confidential designations had passed under this Court’s Agreed Protective
Order.” The appellants attached portions of the transcript from Anderson’s April
26, 2018 deposition to their perjury motion, along with corresponding video. Under
the stipulated protective order, each party had 30 days from the date of receiving
the transcript to designate portions of the transcript or exhibits thereto as
confidential.
The trial court found that Anderson’s counsel received the deposition video
on May 29, 2018, and, as a result, had until June 28 to make confidential
designations to the video. The appellants do not assign error to this finding of fact.
Unchallenged findings of fact are verities on appeal. In re Estate of Jones, 152
Wn.2d 1, 8, 93 P.3d 147 (2004). The appellants filed the motion with portions of
the transcript and video on June 18, 10 days before the June 28 deadline. Thus,
Anderson had 10 more days to designate portions of the transcript or exhibits
thereto as confidential. Deposition transcripts were treated as confidential until the
13 No. 78819-1-1114
end of the 30 day period for making designations. As a result, substantial evidence
supports the finding that the appellants violated the stipulated protective order by
attaching portions of the deposition transcript and video to their motion.
Third, the appellants object to the trial court’s finding that they filed the
motion to garner media attention. The trial court found that the appellants “filed a
baseless motion, lacking any support from the factual record or existing law. . . as
a means of garnering media attention.”
The appellants filed the perjury motion on June 18, 2018, the one year
anniversary of Lyles’s death. The media had a copy of the motion before it was
served on the respondents. Koehier admits that she provided a copy to the media.
After Rozier of King 5 News tweeted a screen capture of the motion, Koehler
retweeted his post with the hashtags “#sayhername” and “#CharleenaLyles.” She
also retweeted several news articles regarding the case. And, she tweeted, “One
year ago Charleena Lyles was shot to death in her own home by the police. Today
we honor her memory and children by relentlessly fighting to uncover the truth of
what happened.” Based on these facts, substantial evidence supports the finding
that the appellants filed the motion to garner media attention.
B. RPC 3.6
The appellants contend that Koehler did not violate RPC 3.6, and the trial
court erred in finding that she did. They assert that her interactions fell within the
provisions of RPC 3.6(b).
The trial court found that “Koehler’s subsequent tweets/retweets of various
news articles stand as extrajudicial statements of a party’s credibility, character,
14 No. 78819-1 -1/15
and reputation in violation of RPC 3.6. Such comments are materially prejudicial
in light of the ongoing litigation.” “[W]hether a given set of facts establish an RPC
violation is a question of law.” LK Operating, LLC v. Collection Grp., LLC, 181
Wn.2d 48, 68, 331 P.3d 1147 (2014). This court reviews questions of law de novo.
Stone v. Sw. Suburban Sewer Dist., 116 Wn. App. 434, 438, 65 P.3d 1230 (2003).
RPC 3.6(a) provides,
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Under RPC 3.6(b),
Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved, and, except when prohibited by law, the identity of the persons involved;
(2) information contained in the public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation. The appellants argue that the information Koehler retweeted to the media
specifically falls under the safe harbor provisions of RPC 3.6(b). They note that
the “information was contained in a public record — in this case the court filings and
pleadings.” And, they state that “the trial court’s orders do not establish that there
is a substantial likelihood that the trial would be materially prejudiced, particularly
when the case is still in the discovery phase and trial is still months away.”
15 No. 78819-1-1/16
To support their argument that Koehler violated RPC 3.6, the respondents
cite comment 5 to the rule, which provides,
There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness. The perjury motion became a part of the court record when it was filed on
June 18 at 1:55 p.m. GR 31(c)(4). At this point, the public could access it. CR
31(d)(1). There is no evidence to suggest that the media had a copy of the motion
before it was filed. But, the deposition referenced in the motion was covered by a
protective order. Portions of the deposition transcript and video were released 10
days before the deadline to designate any portion as confidential. As a result,
Koehler’s tweets about the motion were not within the safe harbor of RPC 3.6(b)(2)
(allowing attorneys to state information in the public record).
Comment 5 to RPC 3.6 notes that statements about the character,
credibility, or reputation of a party in reference to a civil matter triable by a jury are
more likely than not to have a prejudicial effect on that proceeding. The plaintiffs
alleged in their motion that Anderson had committed perjury during a deposition.
They failed to serve the motion on the respondents before the media was provided
with a copy. Thus, the respondents were unable to prepare a response, let alone
have an opportunity to respond, before the media began posting about it.
16 No. 78819-1-1/17
Accordingly, Koehier reasonably should have known that her conduct would have
a substantial likelihood of materially prejudicing the proceedings in this case.
The trial court did not err in determining that Koehler’s interactions with the
media violated RPC 3.6. However, this court is not a disciplinary body, and we are
not concluding that Koehler violated RPC 3.6 in the context of a disciplinary
proceeding. Rather, this conclusion is relevant to whether Koehler filed the motion
for an improper purpose under CR 11.
C. CR11
The appellants argue that the trial court abused its discretion in granting the
respondents’ request for CR 11 sanctions. CR 11(a) states,
The signature of a party or of an attorney constitutes a certificate by that party or attorney that the party or attorney has read the pleading, motion, or legal memorandum, and that to the best of the party’s or attorney’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is well grounded in fact; (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Where a party or attorney violates this rule, the court may impose appropriate
sanctions upon the party or person who signed the pleading, motion, or legal
memorandum, or both. k~.
CR 11 envisions two violations of the rule: filings that are not well grounded
in fact and warranted by law, and filings that are made for an improper purpose.
Bryant, 119 Wn.2d at 217. Before imposing CR11 sanctions fora baseless filing,
17 No. 78819-1-1/18
the court must find that the attorney failed to conduct a reasonable inquiry into the
factual and legal basis of the claim. j.ç~ at 220. Courts use an objective standard
in determining whether the attorney engaged in an appropriate inquiry. Stiles v.
Kearney, 168 Wn. App. 250, 261-62, 277 P.3d 9 (2012). The court must make
findings that specify the actionable conduct to impose CR 11 sanctions for a
baseless complaint. Id. at 262. Namely, the court must make a finding that either
(1) the claim was not grounded in fact or law and the attorney failed to perform a
reasonable inquiry into the law or facts, or (2) the filing was made for an improper
purpose. Biqgs v. Vail, 124 Wn.2d 193, 201, 876 P.2d 448 (1994).
1. Well Grounded in Fact or Law
The appellants argue first that the perjury motion was supported by the
factual record. The appellants alleged in the motion that “false statements made
by Jason Anderson in his deposition support a charge of first degree perjury under
RCW 9A.72.020.”
To prove perjury in a criminal case, the State must meet strict requirements
of proof. State v. Olson, 92 Wn.2d 134, 136, 594 P.2d 1337 (1979). First, it must
present “[t]he testimony of at least one credible witness which is positive and
directly contradictory of the defendant’s oath.” k~. Second, it must present
“[a]nother such direct witness or independent evidence of corroborating
circumstances of such a character as clearly to turn the scale and overcome the
oath of the defendant and the legal presumption of his innocence.” jçj. “[T]he
questions and answers which support the allegation must demonstrate both that
the defendant was fully aware of the actual meaning behind the examiner’s
18 No. 78819-1-1/19
questions and that the defendant knew his answers were not the truth.” State v.
Stump, 73 Wn. App. 625, 628, 870 P.2d 333 (1994).
The appellants point out that “Anderson consistently and repeatedly
testified that he shot Charleena Lyles while [he] was backed up against a closed
door.” The respondents do not dispute this. And, McNew’s deposition testimony
did not contradict Anderson’s testimony. Rather, he stated that he did not recall
seeing him before shooting Lyles.
The appellants note that the diagram prepared in the CSI investigation did
not show Anderson inside the apartment during the time of the shooting. This is
true, but the diagram did not show him outside the apartment either. It omitted him
entirely even though it is undisputed he was present at the scene. The CSI
diagram does not positively and directly contradict Anderson’s testimony that he
shot Lyles from the doorway of her apartment while the door was closed.
To determine where Anderson was at the time of the shooting, the
appellants hired Hayes to synchronize the hallway surveillance video and the audio
from the officers’ ICV systems. The synchronized video depicted “Anderson in the
open doorway and the hallway at the only time that gunshots can be heard.” In
light of this discovery, the appellants filed their perjury motion.
But, the only evidence the appellants cite that contradicts Anderson’s
testimony is the synchronized video. Even if the video constitutes evidence that is
“positive and directly contradictory” of Anderson’s oath, the appellants cite no
corroborating evidence “of such a character as clearly to turn the scale and
19 No. 78819-1-1120
overcome the oath of the defendant.” Olson, 92 Wn.2d at 136. This is required to
prove perjury. ~
Anderson’s consistent testimony suggests that he firmly believed that the
door was shut behind him during the shooting. Even if the synchronized video
contradicted this testimony, it does not show that Anderson knew his answers were
false. To prove perjury, the questions and answers supporting the allegation must
demonstrate that “the defendant knew his answers were not the truth.” Stump, 73
Wn. App. at 628. The video does not demonstrate this. Accordingly, the trial court
did not abuse its discretion in determining that the perjury motion was not well
grounded in fact, and the appellants failed to conduct a reasonable inquiry into its
factual basis.
The appellants argue second that the motion was supported by existing law.
They assert that they filed their motion “under a statute that is currently the law
and has never been overturned.” They also state that “[t]he absence of case law
on this statute does not lend credence to [respondents’] assertion that the
[appellants’] motion is legally unsupportable.” In fact, they argue that “seeking
sanctions based on unclear statutes or unsettled questions of law [is] inappropriate
precisely because the chilling effect is too severe.”
The appellants filed their motion under RCW 9.72.090. They argued that,
under this statute, the trial court could order Anderson to appear to answer a
perjury charge, and then refer the matter to a prosecuting attorney.
20 No. 78819-1 -1/21
RCW 9.72.090 provides,
Whenever it shall appear probable to a judge, magistrate, or other officer lawfully authorized to conduct any hearing, proceeding or investigation, that a person who has testified before such judge, magistrate, or officer has committed perjury in any testimony so given, or offered any false evidence, he or she may, by order or process for that purpose, immediately commit such person to jail or take a recognizance for such person’s appearance to answer such charge. In such case such judge, magistrate, or officer may detain any book, paper, document, record or other instrument produced before him or her or direct it to be delivered to the prosecuting attorney. We review questions of statutory interpretation de novo. City of Spokane v.
Spokane County, 158 Wn.2d 661, 672-73, 146 P.3d 893 (2006). Our fundamental
objective in interpreting a statute is to ascertain and carry out the legislature’s
intent. Smith v. Moran, Windes &Wonq, PLLC, 145Wn. App. 459, 463, 187 P.3d
275 (2008). Where the meaning of a statute is plain on its face, we give effect to
the plain meaning. Id. If a statute is ambiguous, we look to outside sources, such
as legislative history, to determine legislative intent. k~. at 463-64. We will not
interpret a statute in such a way as to render any portion meaningless or that
results in strained meanings or absurd consequences. k1. at 464.
It is apparent from the statute’s plain language that its purpose is to allow
the trial court to protect the integrity of proceedings before it. The statute
authorizes a judge or other officer to act upon evidence presented at a hearing that
a person has committed perjury or offered false evidence. RCW 9.72.090.
Anderson had not testified before the trial court or submitted other evidence at the
time the motion was made. The statute contemplates referral when the perjury
was committed in a hearing in a judicial officer’s presence. j~ (allowing a judge to
21 No. 78819-1-1/22
immediately commit to jail “a person who has testified before such judge [and] has
committed perjury in any testimony”). That was not the case here.
The appellants’ motion attempted to initiate a hearing and provide
competing evidence that would establish perjury in order to obtain a referral for
prosecution. Nothing in RCW 9.72.090 suggests that a party cannot call alleged
perjury to the trial court’s attention. But, it does not invite one party to set up
another to refer for prosecution. Rather, it allows a judicial officer to make a referral
of what that officer has witnessed as a means of deterring and sanctioning perjury.
Notably, the statute is not an evidentiary rule. If a party wishes to challenge
the introduction of certain evidence on the basis that it is perjured testimony, that
party may file a motion in limine to exclude that evidence. See Fenimore v. Donald
M. Drake Const. Co., 87 Wn.2d 85, 91, 549 P.2d 483 (1976) (Holding that a trial
court should grant a motion in limine if the motion “describes the evidence which
is sought to be excluded with sufficient specificity to enable the trial court to
determine that it is clearly inadmissible under the issues as drawn . . . and if the
evidence is so prejudicial in its nature that the moving party should be spared the
necessity of calling attention to it by objecting” to it at trial.). RCW 9.72.090 does
not contemplate a party bringing a motion under the statute as a means of
excluding evidence. Here, the appellants used RCW 9.72.090 as a sword to
exclude evidence not yet presented to the trial court. This was not a proper use of
the statute.
The appellants argue that they should not be sanctioned “for filing a novel
motion — and seeking involvement of the superior court — even under these
22 No. 78819-1-1123
unusual circumstances.” But, they fail to explain how their decision to file the
motion under ROW 9.72.090 aligns in any way with the clear language of the
statute. No authority supports their action. It was novel, but it was also meritless.
Accordingly, the trial court did not abuse its discretion in finding that the perjury
motion is not supported by existing law, and the appellants failed to conduct a
reasonable inquiry into the law.
2. Improper Purpose
The appellants argue next that the motion was not brought for an improper
purpose. They explain that “{njeither Ms. Koehler nor Mr. Moore sought the perjury
ruling for any other reason other than the belief that a crime had been committed.”
While they concede that the motion was a “novel use of the statute,” they assert
that “the unique or atypical nature of the motion does not suggest an improper
purpose.”
The appellants contend that a finding of improper purpose must be based
on “evidence of bad intent.” They rely on In re Cooke, 93 Wn. App. 526, 969 P.2d
127 (1999). There, this court affirmed the trial court’s finding that a statement of
issues was not well grounded in fact and was interposed for improper purposes,
including harassment of an opposing party. j4~. at 529. The court noted that
“Cooke failed to produce any evidence to support the assertions outlined in the
statement of issues, despite extensive discovery.” j.çj~ It also found that Cooke
“threatened to destroy Burgner and force her to incur substantial legal costs.” j4~
It held, “This evidence amply supports the court’s award of fees.” ki.
23 No. 78819-1-1124
Here, the trial court’s finding of an improper purpose included not just the
purpose of harassment, but of “generat[ing] media attention, inflam[ingj the public,
and materially prejudic[ingj these proceedings.” The perjury motion was filed on
June 18, 2018, the one year anniversary of Lyles’s death. The media had a copy
of the motion before it was served on the respondents. Koehler admits that she
provided a copy to the media. She retweeted a screen capture of the motion by a
member of the media with the hashtags “#sayhername” and “#CharleenaLyles.”
She retweeted news articles from three news outlets regarding the case. And, she
tweeted, “One year ago Charleena Lyles was shot to death in her own home by
the police. Today we honor her memory and children by relentlessly fighting to
uncover the truth of what happened.”
Also, as established above, the appellants filed the motion and provided it
to the media in violation of the stipulated protective order. They filed the motion
on June 18, even though Anderson’s counsel had until June 28 to make
confidential designations to the deposition video. Nowhere is there any
explanation why the credibility attack or perjury claim was so urgent that it could
not have been raised in due course at trial when the evidence was presented.
Under these facts, the trial court did not abuse its discretion in finding that the
motion was filed for an improper purpose.9
~ The appellants also contend that the trial court’s findings are insufficient to impose sanctions. As stated above, the trial court must make findings that specify the actionable conduct to impose CR 11 sanctions for a baseless complaint. Stiles, 168 Wn. App. at 262. Namely, it must make a finding that either (1) the claim was not grounded in fact or law and the attorney failed to perform a reasonable inquiry into the law or facts, or (2) the filing was made for an improper purpose. Biggs, 124 Wn.2d at 201. The trial found that “Ms. Koehler and Mr.
24 No. 78819-1-1/25
III. ER7O2andFrye
As noted above, even if Hayes’s declaration and video were improperly
excluded, the evidence was not necessary to evaluate the CR 11 sanctions. It is
nonetheless an issue that merits review, because the ruling has implications for
the trial.
The appellants argue that Hayes’s declaration respecting his synchronized
video of the shooting satisfied the requirements of ER 702 and Frye. The
respondents moved to strike Hayes’s synchronized video, along with his
declaration, under ER 702 and Frye.1° Hayes concluded in his declaration that
“[t]he synchronized video and audio accurately depict Officer Anderson in the open
doorway of the apartment and the hallway at the only time that gunshots can be
heard.” The trial court found that ‘Hayes’[s] synchronization video, Ex. 10 to Ms.
Koehler’s declaration, is not reliable or credible expert evidence meeting the
requirements of Frye or ER 702.” As a result, it granted the respondents’ motion
to strike.
Moore’s motion has no basis in existing law or the facts of this case,” and that the motion “lacks good faith arguments and serves no purpose other than to harass Defendants, generate media attention, inflame the public, and materially prejudice these proceedings and defendant’s right to a fair trial.” These findings provide a proper inference and are sufficient. 10 It is unclear if the respondents intended to strike this evidence only in the context of the appellants’ perjury motion, or intended to strike it from the trial record as a whole. The question of its admissibility is separate from the issue of CR 11 sanctions. Accordingly, we construe the respondents’ motion as a motion to strike the evidence from the trial record.
25 No. 78819-1-1/26
“Under Frye, the primary goal is to determine whether the evidence offered
is based on established scientific methodology.” State v. DeJesus, 7 Wn. App. 2d
849, 859-60, 436 P.3d 834, review denied, 193 Wn.2d 1024 (2019). To do so, the
court considers “(1) whether the underlying theory is generally accepted in the
scientific community and (2) whether there are techniques, experiments, or studies
utilizing that theory which are capable of producing reliable results and are
generally accepted in the scientific community.” State v. Riker, 123 Wn.2d 351,
359, 869 P.2d 43(1994). This court reviews questions of admissibility under Frye
de novo. Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d
857 (2011).
A trial court must exclude expert testimony involving scientific evidence
unless it satisfies ER 702. L.M. v. Hamilton, 193 Wn.2d 113, 134, 436 P.3d 803
(2019). “Expert testimony satisfies ER 702 if (1) ‘the witness qualifies as an
expert,’ and (2) ‘the testimony will assist the trier of fact.” j~ (quoting Lakey v.
Puget Sound Energy, Inc., 176 Wn.2d 909, 918, 296 P.3d 860 (2013)). “Awitness
may qualify as an expert ‘by knowledge, skill, experience, training, or education.”
j~ at 135 (quoting ER 702). “An expert may not testify about information outside his area of expertise.” In re Marriage of Katare, 175 Wn.2d 23, 38, 283 P.3d 546
(2012). This court reviews ER 702 challenges for abuse of discretion. L.M., 193
Wn.2d at 118.
In their motion, the respondents argued that Hayes is not a “video analysis
expert,” and “his own website fails to identify video analysis or synchronization as
an area of expertise.” They pointed out that Hayes did not use original footage in
26 No. 78819-1 -1/27
creating the video, “but conducted his analysis via the redacted and publicly
released video created by SPD.” They also cited a declaration by Travis Smith, a
video specialist employed by SPD. In his declaration, Smith explained the
problems with using a redacted video to conduct such a synchronization:
In simple terms, using the redacted video file for a forensic comparison is similar to comparing a photocopy of a photocopy to the original image. The original videos were processed for redaction and conformed to fit one video format, which included changes in frame size, frame rate, and file formats, converting or processing, and then redacting, transcoding, and exporting for public release at the request of our media relations unit, who in turn uploaded it to [YouTube,J which includes another proprietary transcoding process. Each of these steps is a figurative “photocopy” of the original video file. He further explained,
{T]he change in the fundamental traits of the original video through the process of re-encoding multiple times (photocopies of photocopies) alters the integrity of the video in terms of forensic analysis, because of changes in frame rates, frame size, and the loss or addition of video information created in the transcoding process and encoding settings in general. A better way to analyze is to use the original footage in the analysis and synchronization of video and audio, even still with the existence of many variables. In striking the video and declaration, the trial court found,
Mr. Hayes is not a video analyst. The synchronization authored by Mr. Hayes and offered to this Court did not utilize original audio or video files. Instead, Mr. Hayes used redacted video and audio files from the publicly released video created by SPD. At this stage in the proceedings, the court does not find Mr. Hayes’[s] methods to be reasonable or reliable. First, Hayes described his methodology in synchronizing the audio and
video files:
AVS Video Editor 7.4. was used to synchronize the video and . .
audio clips that were produced by the City of Seattle in discovery.
27 No. 78819-1 -1/28
Specifically, audio and video files were manually synced by matching the sound from the dash cam and the ICV microphones. The frequency of the specific sound used to locate the synchronization point can be graphically displayed and the “soundprint” can be matched for each recording to be synchronized. Typically, we look for additional sounds that match in frequency at other points in in [sic] the recordings to verify the synchronization. That was done here. The ICV microphone audio signal did not cover the full time period that the dash cam covered (four minutes and seven minutes, respectively). Thus, three separate clips from the ICV microphones were isolated and matched to the dash cam audio. When syncing, during the times the ICV microphones audio was used, dash cam audio was turned off to avoid hearing the in-vehicle radio traffic. The hallway surveillance video was also manually synced by coordinating the act of the officer knocking on the door to the sound of the knock in the dash cam video. “The Frye test is implicated only where the opinion offered is based upon
novel science.” Anderson, 172 Wn.2d at 611. In their Frye challenge, the
respondents did not take issue with synchronization as novel science. Nor did they
argue that Hayes’s methodology, described above, is not generally accepted by
the relevant scientific community. Rather, they argued that Hayes should have
used original footage instead of “the redacted and publicly released video created
by SPD.” The respondents’ expert, Smith, stated that “the process Mr. Hayes
describes as ‘Careful observation of the recordings’ is an acceptable method to
create a rudimentary depiction of a chain of events.” We conclude that Frye was
not implicated in this case. The trial court erred in excluding the evidence on that
basis.
Second, Hayes’s testimony laid the necessary foundation for his expertise
in video synchronization. Hayes stated in his declaration that he is a
“biomechanical engineer with more than 40 years of combined academic and
28 No. 78819-1-1/29
forensic experience.” He explained, “It is reasonable and customary in my field to
synchronize files like the ones I reviewed here.” And, he stated,
Synchronization is defined as coordinating or matching two or more activities, devices or processes in time. . Synchronization of . .
multiple video recordings has been used for applications such as object tracking, 3D scene rendering, and noise reduction. I have performed numerous similar synchronizations or supervised my staffers in doing so. Based upon this experience, my education, and work as an engineer, I believe that I am qualified and able to accurately conduct such synchronizations. The respondents argue that Hayes is not a “video analysis expert,” citing
his failure to identify video analysis or synchronization as areas of expertise on his
website. But, the fact that Hayes’s website does not list video synchronization or
analysis as areas of expertise does not rebut or disprove the training and
experience to which he testified. The respondents’ argument that Hayes should
have used original footage goes to the weight of the evidence, not its admissibility.
Hayes qualifies as an expert under ER 702 on the basis of experience. The
trial court abused its discretion in excluding the evidence on that basis.
Accordingly, the trial court erred in excluding Hayes’s video and declaration under
ER 702 and Frye.
IV. First Amendment
The appellants argue last that the trial court’s orders violated their First
Amendment rights. Specifically, they argue that “[ut is a well-developed principle
of both state and federal constitutional law that efforts to restrict counsel’s
communication with the media violate First Amendment principles.” This court
29 No. 78819-1-1/30
reviews constitutional issues de novo. State v. Clark, 187 Wn.2d 641, 649, 389
P.3d 462 (2017).
The appellants rely on State v. Bassett, 128 Wn.2d 612, 911 P.2d 385
(1996). There, the State Supreme Court found that a trial court’s order forbidding
all counsel from publicly discussing an aggravated first degree murder case was a
“prior restraint on the exercise of free speech.” ki. at 613, 615. Because there
were several alternatives to the order, and there was no indication that the
alternatives would be inadequate, it held that the order was unnecessary. Id. at
618. It also determined that the order was “not narrowly tailored to proscribe only
those statements that threaten Bassett’s right to a fair trial or the administration of
justice.” ki. Therefore, the court vacated the order. ki.
Bassett is easily distinguishable. Here, the trial court did not enter an order
forbidding Koehler and Moore from publicly discussing the case. It approved a
stipulated protective order to prevent the public release of material designated as
confidential. As established above, the appellants violated this order in filing the
motion and providing a copy to the media. Thus, the trial court did not impose a
prior restraint on the appellants’ free speech. Rather, it sanctioned them under CR
11 for violating a stipulated court order, concluding in part that “Koehler’s
subsequent tweets/retweets of various news articles stand as extrajudicial
statements of a party’s credibility, character, and reputation in violation of RPC 3.6.
Such comments are materially prejudicial in light of the ongoing litigation.”
The appellants contend that “[d]espite the absence of [an order regarding
media contacts], the judge entered sanctions against Plaintiffs’ counsel which
30 No. 78819-1 -1/31
punished Ms. Koehler for media contacts, and violated her free speech rights.”
They cite no authority for this proposition. They further state that Koehler did not
violate RPC 3.6 “because her actions created no demonstrable substantial
likelihood that the trial of the case would be materially prejudiced.” In the absence
of such proof, they argue that “RPC 3.6 as applied to her was unconstitutional.”
But, the trial court found that Koehler’s comments were “materially prejudicial in
light of the ongoing litigation.” Substantial evidence supports that finding. The trial
court did not err in concluding that her actions violated RPC 3.6.
In light of the stipulated protective order, the trial court did not violate the
appellants’ First Amendment rights in imposing sanctions.
We affirm the imposition of sanctions, but reverse as to the trial court’s
WE CONCUR:
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