IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Appellant, No. 84630-2-I v. UNPUBLISHED OPINION YANIV LIVNAT,
Respondent.
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 No. 84630-2-I/2
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
1 The State repeatedly asserts that Livnat’s motion in limine was to exclude evidence of
his 2013 assault conviction. The record belies this assertion.
2 No. 84630-2-I/3
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,
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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
4 No. 84630-2-I/5
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
5 No. 84630-2-I/6
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 conclusions of law in conjunction with the order of dismissal. Therein, the
trial court found:
6 No. 84630-2-I/7
The intentional conduct of Ms. Fernandez could not be cured by instruction, and a mistrial is not the appropriate remedy. A mistrial would create substantial prejudice to the defendant in a subsequent criminal trial and in the corresponding family law case, impeding his Constitutional right to parent his children.
Finding of Fact 15.
The State appeals.
II
The State asserts that the trial court erred by striking Fernandez’s
testimony in its entirety because such a remedy was not warranted under the
Sixth Amendment of the United States Constitution. We decline to address this
issue, which is not properly before this court.
As an initial matter, we do not review arguments made for the first time on
appeal. Wingert v. Yellow Freight Sys., Inc., 146 Wn.2d 841, 853, 50 P.3d 256
(2002). Neither the parties nor the trial court ever mentioned the Sixth
Amendment or the right to confrontation when discussing the proper remedy for
Fernandez’s failure to obey court orders. Thus, the State’s argument regarding
the Sixth Amendment was not raised to the trial court. Accordingly, we will not
review the argument.
Moreover, during the trial court proceedings, the State conceded on two
separate occasions that striking Fernandez’s testimony was an appropriate
remedy. Indeed, the State’s argument that Livnat did not suffer actual prejudice
justifying dismissal was premised on the fact that the trial court had already
stricken Fernandez’s testimony in its entirety. Given this argument, we presume
the State’s concession was intentional. We therefore consider this issue waived.
7 No. 84630-2-I/8
III
The State next asserts that the trial court erred by granting Livnat’s motion
to dismiss pursuant to CrR 8.3(b). CrR 8.3(b) provides:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.
In order to secure a dismissal pursuant to CrR 8.3(b), the defendant must
establish by a preponderance of the evidence that arbitrary action or
governmental misconduct resulted in actual prejudice affecting his right to a fair
trial. State v. Martinez, 121 Wn. App. 21, 29-30, 86 P.3d 1210 (2004) (citing
State v. Rohrich, 149 Wn.2d 647, 654, 658, 71 P.3d 638 (2003); State v.
Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003)). Dismissal pursuant to CrR 8.3(b)
is an extraordinary remedy and should be ordered only as a last resort. State v.
Brooks, 149 Wn. App. 373, 384, 203 P.3d 397 (2009).
We review a trial court’s decision on a CrR 8.3(b) motion for manifest
abuse of discretion. State v. Moen, 150 Wn.2d 221, 226, 76 P.3d 721 (2003).
“Discretion is abused when the trial court’s decision is manifestly unreasonable,
or is exercised on untenable grounds, or for untenable reasons.” State v.
Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).
To the extent that our review requires us to analyze the trial court’s
interpretation of CrR 8.3(b), our review is de novo. State v. Jieta, 12 Wn. App. 2d
227, 230, 457 P.3d 1209 (2020). When interpreting a court rule, we look to the
rule’s plain language to determine its meaning. Jieta, 12 Wn. App. 2d at 230.
8 No. 84630-2-I/9
A
The trial court found that Fernandez intentionally and blatantly disregarded
the trial court’s orders, which led to defense counsel having to “yell” at the
witness to stop her from volunteering inadmissible evidence.2 Had Livnat
requested a mistrial, the trial court’s findings might have supported a conclusion
that Livnat’s right to a fair trial was prejudiced.
However, Livnat did not move for a mistrial. To the contrary, Livnat
expressly stated, on several occasions, that he did not want the trial court to
declare a mistrial. Livnat’s decision to forgo one remedy does not automatically
entitle him to a greater one. Accordingly, Livnat’s decision to decline a mistrial
has no bearing on whether dismissal was proper.
B
CrR 8.3(b) permits the trial court to dismiss a criminal prosecution “due to
arbitrary action or governmental misconduct.” The State asserts that the trial
court’s conclusion that “[t]he prosecutor did not commit misconduct,” precludes
dismissal under CrR 8.3(b). This is so, the State asserts, because the actions of
a witness not employed by the State do not constitute “governmental
misconduct.” We agree.
2 The State asserts that the trial court’s findings that Fernandez committed misconduct
and that the misconduct was intentional were not supported by substantial evidence. “A determination of whether certain actions constitute intentional misconduct is a finding of fact which will not be disturbed unless it is clearly erroneous.” State v. Cochran, 51 Wn. App. 116, 120, 751 P.2d 1194 (1988). The trial court’s findings of fact were clearly based on its assessment of the events that occurred during Fernandez’s time on the witness stand. Because the trial court is “in a better position to assess the credibility of witnesses, take evidence, and observe the demeanor of those testifying,” State v. Hill, 123 Wn.2d 641, 646, 870 P.2d 313 (1994), we will not disturb the trial court’s findings.
9 No. 84630-2-I/10
In its findings of fact and conclusions of law made in conjunction with its
order of dismissal, the trial court entered the following pertinent conclusions:
3. Ms. Fernandez’s intentional actions constitute governmental misconduct, as she was a State endorsed witness, called by the State. 4. The prosecutor did not commit misconduct.
Accordingly, the trial court’s findings of fact and conclusions of law indicate that
the only person who engaged in misconduct was Fernandez.
We have previously held that CrR 8.3(b) is unambiguous and that the
plain meaning of the word “governmental” as used in the rule is “‘of or relating to
government or the government of a particular political unit.’” Jieta, 12 Wn. App.
2d at 232 (quoting W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 983 (2002)).
A witness who is not employed by a state or local governmental agency cannot
fall within this unambiguous definition.
Livnat does not identify any opinion approving a CrR 8.3(b) dismissal due
to misconduct of a witness. When a party has failed to cite legal authority, we
may presume none exists. P.E.L. v. Premera Blue Cross, ___ Wn. App. 2d ___,
520 P.3d 486, 493 (2022).
Livnat instead relies on State v. Taylor, 18 Wn. App. 2d 568, 490 P.3d 263
(2021), which concerned the trial court’s denial of a motion for a mistrial after the
State’s expert witness violated the court’s orders in limine several times. Voir
dire of the expert witness revealed that the State had failed to instruct the witness
of the trial court’s orders that excluded references to the defendant’s criminal
history or request for an attorney. Taylor, 18 Wn. App. 2d at 576. We held that
10 No. 84630-2-I/11
“[w]here the need for the court to repeatedly instruct and attempt to cure is
created by one of the attorneys, as was the case here, the overall fairness of the
trial may be eroded such that those attempts become futile.” Taylor, 18 Wn. App.
2d at 583 (emphasis added). Thus, a mistrial was appropriate not simply
because the witness had violated the orders in limine several times, but because
the State had not properly prepared the witness. Taylor, 18 Wn. App. 2d at 583.
Taylor is inapplicable here, not only because it concerned a mistrial rather than a
dismissal but also because the trial court in Livnat’s case found no fault on the
part of the State, while the court in Taylor did assign such fault to the State’s
lawyer.
We find State v. Wilson more on point. 149 Wn.2d 1. In both Wilson and
the case consolidated with it, State v. Taylor, noted at 111 Wn. App. 1039 (2002)
(unpublished), the trial courts had dismissed prosecutions pursuant to CrR 8.3(b)
because the defendants were unable to interview a critical witness prior to the
date of trial. Wilson, 149 Wn.2d at 6-8. In each case, the appellate court
reversed the dismissal, holding that the defendants did not establish misconduct
or fault on behalf of the government. Wilson, 149 Wn.2d at 6-8.
Our Supreme Court granted review in order to determine whether the trial
courts abused their discretion in finding that the government engaged in
misconduct by failing to produce a witness for a pretrial interview. Wilson, 149
Wn.2d at 8. The court held that the prosecutors in both cases had taken
reasonable steps to secure interviews of the witness and, accordingly, had not
committed misconduct. Wilson, 149 Wn.2d at 12. The court further held that the
11 No. 84630-2-I/12
trial courts should have considered alternative remedies before resorting to
dismissal. Wilson, 149 Wn.2d at 12. As such, the court concluded, the trial
courts in both cases had abused their discretion by dismissing the prosecutions.
Wilson, 149 Wn.2d at 12.
Justice Sanders dissented from the court’s decision. In Justice Sanders’
view, the prosecution engaged in case mismanagement by violating the trial
courts’ orders to produce the witness and by not making their best efforts to
ensure the witness’s presence. Wilson, 149 Wn.2d at 14-15 (Sanders, J.,
dissenting). Justice Sanders concluded that the prosecutors’ mismanagement of
the cases satisfied the government misconduct requirement of CrR 8.3(b). He
therefore would have held that neither trial court abused its discretion. Wilson,
149 Wn.2d at 16 (Sanders, J., dissenting).
Notably, neither the majority nor the dissent in Wilson assigned any
significance to the misconduct of the witnesses. The sole consideration for both
the majority and the dissent was whether there had been any misconduct on the
part of the prosecutor’s office, i.e., the government. Neither of the witnesses’
conduct was imputed to the government on the basis that the prosecution
intended to call them to testify at trial.
Here, the trial court concluded that the prosecutor had not committed
misconduct. Neither party challenges that conclusion. The trial court’s sole
reason for concluding that governmental misconduct occurred was because
Fernandez “was a State endorsed witness, called by the State.” Conclusion of
Law 3. This conclusion is inconsistent with the plain language of CrR 8.3.
12 No. 84630-2-I/13
Moreover, there is no authority in the case law permitting a court to impute a
witness’s conduct to the State merely because the State was the party who
called the witness to testify. The trial court’s conclusion that the prosecutor had
not committed misconduct thus forecloses dismissal as a possibility pursuant to
CrR 8.3(b). Accordingly, the trial court abused its discretion by dismissing the
prosecution against Livnat.
C
Our analysis does not end there. If the constitutional prohibition on double
jeopardy bars the State from retrying Livnat, then any error by the trial court in
dismissing the prosecution would be harmless. Accordingly, we examine
whether Livnat may be constitutionally retried upon remand.
Both the state and federal constitutions prohibit a criminal defendant from
being placed twice in jeopardy. U.S. CONST. amend. V; CONST., art. I, § 9.
Jeopardy attaches once a jury has been selected and sworn in. State v. Rich, 63
Wn. App. 743, 747, 821 P.2d 1269 (1992). However, a mistrial or improvidently
granted dismissal will not necessarily bar retrial. Rich, 63 Wn. App. at 747. If the
defendant requested or consented to the mistrial or improper dismissal, retrial is
barred only if prosecutorial misconduct was intended to provoke a request for a
mistrial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 72 L. Ed. 2d
416 (1982). If the defendant did not consent to the mistrial, retrial is barred
unless discharging the jury was necessary in the interest of the proper
administration of justice. State v. Connors, 59 Wn.2d 879, 883, 371 P.2d 541
(1962).
13 No. 84630-2-I/14
The distinction between the two standards does not hinge on whether the
defendant consented to a mistrial specifically. Rather, “[t]he important
consideration, for purposes of the Double Jeopardy Clause, is [whether] the
defendant retain[s] primary control over the course to be followed.” United States
v. Dinitz, 424 U.S. 600, 609, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976). Although
Livnat did not consent to a mistrial specifically, he did request a dismissal,
terminating the trial and forfeiting his right to have the case decided by the
impaneled jury. Thus, we deem him to be in the same position as if he had
consented to a mistrial for purposes of our double jeopardy analysis.
The Rich decision, on which Livnat relies, is inapposite. In that case, the
State elected to try the defendant in absentia for taking a motor vehicle when the
defendant did not appear on the morning of trial. Rich, 63 Wn. App. at 745.
During trial, none of the witnesses could identify the defendant, who was not
present, as the person driving the motor vehicle. Rich, 63 Wn. App. at 745. Both
parties rested their cases and the trial court declared a recess for lunch. Rich, 63
Wn. App. at 745. The defendant arrived at the courthouse during the recess.
Rich, 63 Wn. App. at 745-46. Defense counsel then moved for dismissal based
on insufficient evidence. Rich, 63 Wn. App. at 746. The trial court denied the
motion. Rich, 63 Wn. App. at 746. It then asked defense counsel to either
permit the State to reopen its case or agree to a mistrial. Rich, 63 Wn. App. at
746. Defense counsel refused both options. Rich, 63 Wn. App. at 746.
Division Two of this court held that double jeopardy barred retrial of the
defendant. Rich, 63 Wn. App. at 749. In so doing, the court concluded that the
14 No. 84630-2-I/15
defendant had not consented to a mistrial because he did not agree to either of
the two unfavorable options presented to him by the trial court. Rich, 63 Wn.
App. at 748. As such, the trial court applied the less stringent “proper
administration of justice” standard when assessing whether retrial was barred by
double jeopardy. There, the appellate court held, the mistrial had not been
necessary in the proper administration of justice. Rather, the court held that it
should be the State, not the defendant, who should bear the cost of its decision
to proceed with trial in absentia. Rich, 63 Wn. App. at 748.
In the case just discussed, the course of proceedings was dictated by both
the State (by proceeding in absentia) and the trial court (by insisting that the
State get a second chance after the defendant appeared), rather than by the
defendant. Here, however, Livnat was the party who had primary control over
the course of the proceedings. Dismissal as a remedy for Fernandez’s
misconduct was first mentioned by Livnat, on the morning after the trial court had
stricken Fernandez’s testimony. Livnat had also been the party to request that
Fernandez’s testimony be stricken in its entirety. Rather than having a remedy
imposed on him, Livnat was the party who requested all of the relief the trial court
granted. Thus, Livnat is properly deemed to have consented.
The consequence of Livnat’s consent is that, in order for retrial to be
barred, Livnat is subject to a stricter standard than the one applicable in Rich.
Specifically, for the double jeopardy bar to apply, Livnat must demonstrate that
prosecutorial misconduct was intended to provoke a request for a mistrial.
Kennedy, 456 U.S. at 676. This he cannot do, as the trial court concluded that
15 No. 84630-2-I/16
there was no prosecutorial misconduct whatsoever.
As under CrR 8.3(b), the conduct of a witness cannot be imputed to the
State to satisfy the requirement of prosecutorial misconduct for purposes of a
double jeopardy claim. This rule was established in State v. Hopson, 113 Wn.2d
273, 280-81, 778 P.2d 1014 (1989), in which our Supreme Court declined to hold
that the conduct of a State’s witness, who was not an officer of the court, could
suffice to bar retrial of the defendant following a mistrial.
Because retrial is not barred by the constitutional prohibition on double
jeopardy, the trial court’s error in dismissing the prosecution was not harmless.
IV
The State next requests that we require that this matter be assigned to a
different judge on remand. We decline to grant the State’s request.
Reassignment to a new judge on remand may be appropriate if “the trial
judge will exercise discretion on remand regarding the very issue that triggered
the appeal and has already been exposed to prohibited information, expressed
an opinion as to the merits, or otherwise prejudged the issue.” State v. McEnroe,
181 Wn.2d 375, 387, 333 P.3d 402 (2014) (footnotes omitted). A party
requesting reassignment on remand must demonstrate actual or potential bias of
the judge who handled the initial proceeding. State v. Finch, 181 Wn. App. 387,
398-99, 326 P.3d 148 (2014) (citing In re Pers. Restraint of Haynes, 100 Wn.
App. 366, 377 n.23, 996 P.2d 637 (2000)). The remedy is a limited one: “[E]ven
where a trial judge has expressed a strong opinion as to the matter appealed,
reassignment is generally not available as an appellate remedy if the appellate
16 No. 84630-2-I/17
court’s decision effectively limits the trial court’s discretion on remand.”
McEnroe, 181 Wn.2d at 387.
The State does not establish circumstances justifying a grant of its
request. First, the State contends that the trial court made numerous factual
findings concerning Fernandez’s intent that are unsupported by the record.
Having reviewed the record, we cannot say that any of the trial judge’s factual
findings, which were largely based on her observations of the witness’s conduct,
are clearly erroneous.
Second, the State argues that the trial judge stated that she planned to
grant an acquittal after the State rested. The record reflects that the judge stated
that she “was waiting for that halftime motion,”3 i.e., that she anticipated that
Livnat would be bringing such a motion after the State rested its case. This was
a fair assumption under the circumstances. A reasonable person would not view
the trial judge as having expressed an opinion on whether such a motion would
necessarily have been granted.
Lastly, the State asserts that the trial judge “ignored binding precedent” by
finding that Livnat was prejudiced in a manner that did not affect his ability to
receive a fair trial. Br. of Appellant at 64. This argument fails because “legal
errors alone do not warrant reassignment.” McEnroe, 181 Wn.2d at 388 (citing
3 [PROSECUTOR]: Your Honor, if I can ask for a little clarification too? It doesn’t
sound like this morning that the Court found that there was prejudice such that a mistrial was warranted, but it sounds like that changed. Am I incorrect? THE COURT: Frankly, I was waiting for that halftime motion. I didn’t think I needed to address it at that time. I could have, but I didn’t.
17 No. 84630-2-I/18
Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474
(1994)).
Although the trial court will be exercising discretion on remand, it will not
be doing so on the issue that gave rise to this appeal (whether Livnat satisfied
the requirements under CrR 8.3(b) for dismissal). We thus deny the State’s
request to order reassignment of this matter on remand.
Reversed and remanded.
WE CONCUR: