State v. Lile

• Court: Washington Supreme Court
• Decided: July 20, 2017
• Docket: 93035-0
• Status: Published

Opinion

This opinion was filed for record

at.. e:ou ~ onJWJ, 7J l ivn 0w~a~ SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 93035-0 ) Respondent, ) ) EN BANC v. ) ) TRAVIS LEE LILE, ) FILED JUL 2 0 2017 ) Petitioner. ) )

FAIRHURST, C.J.-Travis Lee Lile appeals his convictions for multiple

assaults and resisting arrest. A jury found beyond a reasonable doubt that Lile, acting

as the aggressor, attacked Christopher Rowles and Amanda Millman and then struck

Bellingham Police Officer Jeremy Woodward while the officer attempted to arrest

Lile for assaulting Rowles and Millman. The Court of Appeals affirmed after

holding that the trial court committed nonreversible error in improperly denying

Lile's timely affidavit of prejudice filed in accordance with RCW 4.12.050. State v.

Lile, 193 Wn. App. 179,373 P.3d 247 (2016). State v. Lile, No. 93035-0

We granted Lile's petition for review and the State's cross petition for review

on two issues: (1) judicial disqualification and (2) the trial court's exclusion of

evidence impeaching Rowles' asserted nonviolent nature. State v. Lile, 186 Wn.2d

1016, 380 P.3d 523 (2016). We affirm the Court of Appeals on both issues because

in neither instance did the trial court commit error. Although we are affirming, we

reverse the Court of Appeals holding that the trial court's ruling on an agreed

continuance was not discretionary.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background

Two intoxicated groups crossed paths on a Bellingham sidewalk one evening

m 2013. Millman and Alyssa Powell walked in one direction, ahead of their

companions Rowles and Taylor Powell. Alyssa Powell was particularly intoxicated,

stumbling as she walked. United States Navy sailors Lile, Sean Duff, and Allen

Owens, along with civilian Cameron Moore, walked in the opposite direction. Lile's

group had recently left a party in which Lile had admittedly consumed "four, maybe

five beers" and "a shot-and-a-half of Crown" over a period of "about five hours." 6

Verbatim Report of Proceedings (VRP) (Mar. 25, 2014) at 865. 1

1 As discussed below, Whatcom County Superior Court Judges Ira Uhrig and Deborra Garrett both presided over portions of Lile's criminal proceedings. Two sets of VRPs for these proceedings were produced: a one-volume VRP for the pretrial and posttrial proceedings presided over by Judge Uhrig (designated as VRP) and a seven-volume VRP for the pretrial, trial, and posttrial proceedings presided over by Judge Garrett (designated as VRP volumes 1 through 7). 2 State v. Lile, No. 93035-0

Alyssa Powell allegedly bumped Lile as they passed. 2 Lile turned around,

exchanging words with the women while he continued walking backwards. When

Lile reached Rowles and Taylor Powell, he made contact with Rowles, pushing Lile

forward. Rowles claimed any contact was incidental. Duff and Moore indicated that

Rowles appeared to change direction as Lile approached and "shoulder check[ ed]"

Lile as their paths met. 5 VRP (Mar. 24, 2014) at 668, 776.

Lile next exchanged words with Rowles and Taylor Powell as he regained his

balance and turned around to face them. Lile claims they were "into [his] face." 3 6

VRP at 868. Lile then punched Rowles in the face. The vast majority of the testimony

indicates that neither Rowles nor Taylor Powell made any aggressive moves toward

Lile or his three male companions up to this point. Furthermore, no one-including

Lile-disputes that Lile threw the first punch. A scuffle ensued between the men in

the two groups.

Millman approached the scuffling men, urging them to stop. Lile hit her in the

face, fracturing her jaw, knocking out some teeth, concussing her, and rendering her

briefly unconscious. Owens then pulled Lile from the fracas, and they began to walk

away.

2 Lile' s group testified that no bump occurred. They claim Lile attempted to flirt with Alyssa Powell and Millman, who rebuffed him. 3 Owens later described the incident to naval investigators as Rowles and Taylor Powell "kind of [getting] in [Lile's] face a little bit." Clerk's Papers at 382. 3 State v. Lile, No. 93035-0

Officer Woodward was patrolling the area in his police cruiser and noticed

the verbal altercation before blows began. He parked his vehicle some 40 yards away

and responded on foot after observing Lile punch Rowles. Officer Woodward saw

Lile strike Millman as the officer continued toward the fracas. By the time Officer

Woodward reached the group, Lile was walking away.

Officer Woodward told Lile to '" stop, police. You're under arrest."' 2 VRP

(Mar. 17, 2014) at 106. Officer Woodward attempted to grab Lile, who took flight.

A chase ensued. Once he reached Lile, Officer Woodward jumped onto Lile's back.

Lile struggled, striking Officer Woodward in the face. Officer Josh McKissick

arrived shortly thereafter and assisted Officer Woodward in finally subduing and

arresting Lile.

B. Criminal proceeding

Lile was charged with assaulting Millman, Rowles, and Officer Woodward.

He was also charged with resisting arrest. Whatcom County Superior Court Judge

Ira Uhrig was initially assigned the criminal case, setting the matter for a January

22, 2014 status hearing and a February 3, 2014 trial. 4 During the January 22, 2014

status hearing, Lile's attorney informed Judge Uhrig that "[the prosecuting attorney]

4 Lile claims the Whatcom County Superior Court routinely schedules a status hearing one week prior to trial date for criminal cases on a rolling basis. If the parties inform the judge they are ready for trial during the status hearing, they appear the following week on the appointed date. The presiding judge will then use a rule of priority to determine which cases to try. Untried cases are '"bumped for one week."' Reply to State's Cross Pet. for Review at 6; Corrected Suppl. Br. of Pet'r at 5. 4 State v. Lile, No. 93035-0

and I were talking about the case and we propose to move the case one week." VRP

(Jan. 22, 2014) at 3. Judge Uhrig orally granted the continuance, issuing a written

order to that effect February 3, 2014. On February 4, 2014, Lile's attorney submitted

a motion to sever, asking the court to order separate trials for Lile's alleged assaults

on Millman and Rowles from his assault on Officer Woodward. During the February

6, 2014 status hearing, before Judge Uhrig ruled on the motion to sever, Lile's

attorney informed Judge Uhrig that Lile had filed an affidavit of prejudice against

him.

The prosecuting attorney asserted the affidavit was not timely under RCW

4.12.050 because Judge Uhrig's ruling on the January 22, 2014 continuance motion

preceded the affidavit and was discretionary.

Lile's attorney explained:

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

VRP (Feb. 6, 2014) at 13. Judge Uhrig indicated the continuance ruling was

discretionary, as he had denied such requests in the past. As a result, he ruled the

affidavit untimely. He then denied Lile's motion to sever. Lile did not later renew

the motion to sever, an option provided by CrR 4.4(a)(2).

Additional delays occurred because a number of witnesses were serving in the

navy. Their appearances had to be coordinated and arranged. Judge Uhrig indicated 5 State v. Lile, No. 93035-0

in his final status hearing the delays in Lile's proceeding had created a potential

conflict with another case. Judge Uhrig was unable to preside over Lile's trial. The

case was transferred to Judge Deborra Garrett, one of two other Whatcom County

Superior Court Judges. Judge Garrett heard Lile's remaining pretrial motions.

Lile submitted a motion in limine to Judge Garrett to introduce evidence, for

purposes articulated in ER 404(b ), of prior protection orders and related petitions

against Rowles submitted by Nicole Foster, a past girlfriend of Rowles. Judge

Garrett denied the motion, finding the "prior bad actions ... [not] sufficiently similar

to the events that occurred in this case[] that a common scheme or plan can be

deduced from them." 1 VRP (Mar. 13, 2014) at 12; see ER 404(b ). Lile did not seek

our review on this pretrial ruling.

About a week later, once the trial began, Rowles provided the following

testimony on direct examination:

Q. Well, how come you didn't like defend yourself [before Lile punched you]? A. Everything kind of caught me by surprise .... I don't get into too many fights. I don't think I've ever been in a fight. ... Q. Did you have time to get your hands up or -- A. No. Q. -- do anything?

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

following testimony:

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

6 State v. Lile, No. 93035-0

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

Id. at 528.

Q. Are you punching back? A. No. Q. Whynot? A. Still a little in shock. I didn't, I'm not a fighter. I didn't want to be a fighter.

Id. at 538. Lile asserted to the court that these statements "[gave] the impression

[Rowles is] a man of peace ... that opens the door to bring up ... those harassment[]

[petitions filed by Foster] because those constitute fighting." Id. at 543. "I don't

believe it comes [in] under [ER 404(b)], we already lost that. This is purely a simple

[matter of] whether I'm allowed to follow up logical cross-examination based on the

statement" for purposes of impeachment pursuant to ER 608(b )( 1). Id. at 545. Lile

provided an offer of proof-domestic abuse allegations contained in Foster's most

recent petition for a protection order. The court denied Lile's request. It held that the

allegations contained in the petition were irrelevant to Rowles' credibility and

collateral to the events at issue in this case.

Lile was convicted on all charges. Judge Garrett entered a judgment and

sentence consistent with Lile' s conviction.

7 State v. Lile, No. 93035-0

C. Appellate proceeding

Lile raised a number of issues on appeal. The Court of Appeals affirmed all

issues. Lile, 193 Wn. App. at 214. It held that the trial court's ruling on the

continuance was nondiscretionary, but that the trial court's error in denying Lile's

affidavit of prejudice was not a basis for reversal because Judge Uhrig did not

preside over Lile's trial and Lile had an opportunity to renew his motion to sever

pursuant to CrR 4.4(a)(2) with Judge Garrett. Id. at 193-97.

Lile petitioned for review on eight issues, and the State cross petitioned on

one. We accepted review only on the affidavit of prejudice and impeachment issues.

Order, State v. Lile, No. 93035-0 (Wash. Sept. 29, 2016). Supplemental briefing

followed. Lile agrees with the Court of Appeals that the ruling on the continuance

was not discretionary, but argues the trial court's error was a basis for reversal. The

State argues the ruling was discretionary and the affidavit of prejudice was not

timely; therefore, Judge Uhrig was qualified to rule on the severance motion. Lile

disagrees with the Court of Appeals holding that Judge Garrett did not abuse her

discretion in precluding impeachment of Rowles using allegations contained in the

protection order petition.

II. ISSUES

1. Was the joint continuance motion discretionary, making Lile' s affidavit of prejudice untimely and leaving Judge Uhrig qualified to hear the motion to sever?

8 State v. Lile, No. 93035-0

2. Did the trial court abuse its discretion when it denied Lile's request to impeach Rowles through cross-examination regarding Foster's protection order petition?

III. ANALYSIS

A. A ruling on a joint continuance motion is discretionary

A party has the right to disqualify a trial judge for prejudice, without

substantiating the claim, if the requirements of RCW 4.12.050 are met. State v.

Chamberlin, 161 Wn.2d 30, 41, 162 P.3d 389 (2007). RCW 4.12.040(1) provides that

"[nJo judge of a superior court ... shall sit to hear or try any action or proceeding when

it shall be established ... that said judge is prejudiced against any party or attorney."

To establish prejudice, a party can file a motion supported by an affidavit indicating

that the party cannot, or believes that it cannot, "have a fair and impartial trial before

suchjudge." RCW 4.12.050(1).

"To be timely, an affidavit of prejudice must be made 'before the judge

presiding has made any order or ruling involving discretion."' In re Recall of

Lindquist, 172 Wn.2d 120, 130, 258 P.3d 9 (2011) (quoting RCW 41.12.050(1)).

RCW 4.12.050(1) also provides that "the arrangement of the calendar, the setting of

an action, motion or proceeding down for hearing or trial, the arraignment of the

9 State v. Lile, No. 93035-0

accused in a criminal action or the fixing of bail shall not be construed as a ruling or

order involving discretion within the meaning of this proviso." 5

1. Relevant precedent

We have consistently held that a ruling on an opposed continuance motion is

discretionary. See, e.g., Lindquist, 172 Wn.2d at 130; State v. Maxfield, 46 Wn.2d 822,

829, 285 P.2d 887 (1955). However, we have not been consistent on whether a ruling

on an agreed or unopposed continuance motion is discretionary. See State ex rel. Floe

v. Studebaker, 17 Wn.2d 8, 15-17, 134 P.2d 718 (1943); State v. Espinoza, 112 Wn.2d

819, 822-23, 774 P.2d 1177 (1989); State v. Dennison, 115 Wn.2d 609,620 n.10, 801

P.2d 193 (1990). This is a question of law we review de novo.Kovacs v. Dep'tofLabor

& Indus., 186 Wn.2d 95, 97, 375 P.3d 669 (2016). We hold, for the same reasons that

a ruling on an opposed continuance is discretionary, that a ruling on an agreed or

unopposed continuance is discretionary for purposes ofRCW 4.12.050.

5 Recently enacted legislation, effective July 23, 2017, revises RCW 4.12.050 as follows: "Notice of disqualification must be filed ... before the judge has made any discretionary ruling in the case .... Even though they may involve discretion, the following actions by a judge do not cause the loss of a right to file a notice of disqualification against that judge: Arranging the calendar, setting a date for a hearing or trial, ruling on an agreed continuance . ... " LAWS OF 2017, ch. 42, § 2 (emphasis added) (underline omitted). Justice Madsen believes the discretionary nature of a ruling isirrelevantfor-purposes ofRCW 4.12.050. See concurrence (Madsen, J.). She suggests that the recent change to the statute supports this view. We disagree. The recent change merely expands the list of potentially discretionary acts that do not serve as a basis for the loss of the right of disqualification. The legislature did not depart from its basic discretionary/nondiscretionary framework in the recent change. Nor is Justice Madsen's reliance on legislative testimony persuasive. See concurrence (Madsen, J.) at 3 n. 1. Such testimony has no bearing on the intent of the legislature. See Wilmotv. Kaiser Alum. & Chem. Corp., 118 Wn.2d 46, 64,821 P.2d 18 (1991) ("testimony before a legislative committee is given little weight"). And here, the legislature gave no indication that its change was a mere clarification or is to have retroactive effect. 10 State v. Lile, No. 93035-0

A trial court's ruling on an opposed continuance is discretionary because "'the

court must consider various factors, such as diligence, materiality, due process, a need

for orderly procedure, and the possible impact of the result on the trial."' Lindquist, 172

Wn.2d at 130 (quoting State v. Guajardo, 50 Wn. App. 16, 19, 746 P.2d 1231 (1987)).

These considerations similarly apply to rulings on agreed continuances, yet the Court

of Appeals held otherwise. It reached this holding by misinterpreting relevant precedent

and focusing on the form of a continuance request, rather than its substance or impact.

In Floe, we held that a trial court's approval of a stipulated proposed order signed

by both parties consolidating two cases and continuing one of the cases was not

discretionary. At the time, "[w]e d[id] not believe ... the court is required to exercise

discretion ... where all the parties have stipulated that such [an] order be made." 17

Wn.2d at 17. Given the fact that continuing the case was necessary to effect

consolidation and that Floe was a civil proceeding, the precedential effect of Floe,

particularly for a criminal case, is suspect. More recently in Espinoza, 112 Wn.2d at

822-23, a criminal proceeding, we noted in dictum that a ruling on a continuance motion

"requested by respondent and joined by the State" is discretionary. Shortly thereafter,

in Dennison, also a criminal proceeding, we found that a trial court's ruling on a

continuance motion the parties stipulated to was discretionary. 115 Wn.2d at 620 &

n.10. We cited Espinoza for this finding. Id. at 620 n.8. We also noted that former CrR

3.3(h) (1986), renumbered as CrR 3.3(f), provides trial courts discretion in granting

11 State v. Lile, No. 93035-0

continuances, regardless of what form the continuance request may take. 6 Id. at 620

n.10.

The Court of Appeals held that the continuance ruling was not discretionary

because: (1) neither Espinoza nor Dennison specifically overruled Floe and (2) we

reaffirmed Floe in State v. Parra, 122 Wn.2d 590, 859 P.2d 1231 (1993). Lile, 193

Wn. App. at 193 n.5. Neither of these findings are supportable.

First, a specific reference to Floe was not required in Espinoza or Dennison to

overrule Floe. "A later holding overrules a prior holding sub silentio when it directly

contradicts the earlier rule of law." Lunsfordv. Saberhagen Holdings, Inc., 166 Wn.2d

264, 280, 208 P.3d 1292 (2009) (citing Safeco Ins. Co. of Am. v. Butler, 118 Wn.2d

383, 403, 823 P.2d 499 (1992); Indus. Coatings Co. v. Fid. & Deposit Co. ofMd., 117

Wn.2d 511, 515-18, 817 P.2d 393 (1991)). While Dennison and Espinoza involved

stipulated or unopposed continuance motions, rather than the stipulated proposed

continuance order described in Floe, the relevant issue in all three decisions was the

same-whether agreed continuance requests, in the form of stipulated motions,

unopposed motions, or a stipulated proposed order, are discretionary for purposes of

6 This is not a basis to distinguish Floe from Dennison and Espinoza. A trial court's discretion to grant or deny continuances has not changed since the time Floe was decided. See former Rem. Rev. Stat.§ 2135 (1877), recodified as RCW 10.46.080.

12 State v. Lile, No. 93035-0

RCW 4.12.050. In Dennison and Espinoza, we found that they were. These decisions

control.

Second, our decision in Parra did not reaffirm Floe's holding that an agreed

continuance is not discretionary. 122 Wn.2d at 590. In fact, no continuance request

was made by either party in Parra. In Parra, we referenced Floe in order to support

the proposition that the substance and impact of a request is the most relevant

consideration for assessing whether discretion is employed in ruling on the request,

regardless of what form the request takes.

Parra involved a ruling in a criminal proceeding on an omnibus application

containing 23 potential defense motions and 20 potential state motions, all of which

were unopposed. Id. at 591. We held that ruling was discretionary because to either

"grant or deny a motion involves discretion" and the substance of the request, rather

than its form, controls. Id. at 601. We noted that certain stipulated agreements, like the

one in Floe, would not "invoke[] the discretion of the court for ... resolution" and,

therefore, would not be discretionary Id. at 600. But we also cautioned that for such a

ruling to be nondiscretionary, a stipulated agreement must "affect[] only the rights or

convenience of the parties, [and] not involv[ e] any interference with the duties and

functions of the court." Id. at 603 (emphasis added). We further noted that for these

purposes, "a party's decision not to object [to a motion] does not constitute a stipulation

by that party." Id. at 602. "To either grant or deny a motion involves discretion." Id. at

13 State v. Lile, No. 93035-0

601. While we referenced Floe in Parra, we did not reaffirm Floe's holding in Parra

that an agreed continuance is not discretionary.

2. Judge Uhrig's continuance ruling was discretionary

Continuances, even when unopposed, have a significant impact on the

efficient operation of our courts and the rights of the parties, particularly in criminal

proceedings. Correspondingly, CrR 3 .3(h) provides trial courts discretion in granting

them. Like the omnibus application in Parra, the continuance ruling here impacted the

"duties and functions of the court," 7 and therefore involved discretion. 122 Wn.2d at

603.

Lile argues State v. Dixon, 74 Wn.2d 700, 446 P.2d 329 (1968), rather than

Parra, Dennison, and Espinoza, controls. In Dixon, we held that it would be "manifestly

unfair" to require a defendant to use his single opportunity to file an affidavit ofjudicial

prejudice at a scheduling hearing when it was unclear whether the defendant would

ultimately wind up with the same judge at trial. Id. at 703. Lile' s argument fails because

(1) Dixon was decided before our holdings in Dennison, Espinoza, and Parra and (2) it

is factually distinguishable from this case. Dixon did not involve a continuance ruling.

Dixon involved a ruling on a motion to renote, to an earlier hearing date, a petitioner's

7 As Judge Uhrig noted, the court's schedule following the continuance had become a "frustrat[ing] ... dilemma" of competing demands for court time. VRP (Feb. 18, 2014) at 39. He wished to "make every effort to make sure this case gets out ... without any further delay," id at 43, which ultimately proved impossible, due in part to the continuance at issue in this case. Judge Uhrig transferred the case to Judge Garrett when Judge Uhrig's schedule could no longer accommodate Lile's trial. 14 State v. Lile, No. 93035-0

motions to dismiss and suppress. Id. at 700-01. Such an action, unlike a continuance

ruling, is a preliminary matter specifically designated by the statute as not discretionary.

See RCW 4.12.050(1) (setting a motion for hearing is discretionary).

Lile also argues that a continuance is no more than a "calendaring matter" falling

within the ambit of RCW 4.12.050(1). Suppl. Br. of Pet'r at 6. This argument is not

supported by the language of the statute, which we have previously construed as

distinguishing "preparing the calendar from granting a continuance." Lindquist, 172

Wn.2d at 130-31; see Maxfield, 46 Wn.2d at 829 (a ruling on a continuance motion is

not a calendaring act because it invokes the discretion of the court); see also State ex

rel. Lefebvre v. Clifford, 65 Wash. 313,314, 118 P. 40 (1911) (a ruling on an opposed

continuance motion is discretionary). 8

Lastly, Lile claims that even if a ruling on an unopposed continuance could be

discretionary, the facts of this case do not support such a finding. Given the volume of

cases assigned to Judge Uhrig for his status hearings on January 22, 2014, "[t]here

[wa]s not enough time to consider the specific merits of any case at the status hearing"

and, therefore, no discretion could have been exercised. Corrected Suppl. Br. of Pet'r

at 6. If either party opposed the continuance motion during the status hearing, Lile

asserts Judge Uhrig would have set over the motion for argument at a criminal hearing

8 Nor is this proposition supported by the recently enacted change to RCW 4.12.050. "Arranging the calendar" is a separate discretionary act from a "ruling on an agreed continuance." LA ws OF 2017, ch. 42, § 2(2) (underline omitted). 15 State v. Lile, No. 93035-0

later in the week, and only then could he have exercised discretion. But this assertion is

belied by the record. Judge Uhrig indicated he has "denied continuances [at status

hearings] in the past. It doesn't happen often but it does happen." VRP (Feb. 6, 2014)

at 13.

Judge Uhrig's continuance ruling was discretionary, making him qualified to

rule on Lile' s severance motion. We affirm the trial court.

3. A change of judge is a matter or right

The Court of Appeals ultimately affirmed the trial court even though it found

Judge Uhrig's continuance ruling not discretionary. It concluded that judicial

prejudice need not constitute reversible prejudice, based on State ex rel. LaMon v.

Town of Westport, 73 Wn.2d 255,438 P.2d 200 (1968), overruled on other grounds

by Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984). Lile, 193 Wn. App. at

194. But LaMon is the rare exception to the rule. 9 See Parra, 122 Wn.2d at 595 (only

in extraordinary circumstances may a change to a judge be avoided following a

timely affidavit of prejudice); Marine Power & Equip. Co. v. Dep't ofTransp., 102

Wn.2d 457, 465, 687 P.2d 202 (1984) (suggesting that such a circumstance may

9In LaMon, a motion was made to dismiss a person who all parties agreed was not a proper party to the lawsuit. 73 Wn.2d at 260. The trial court granted the dismissal, but only after the person had already filed an affidavit of prejudice. We found the trial court's ruling on the motion to be error, but that the error did not warrant reversal because not every error is reversible error. Id. at 261. 16 State v. Lile, No. 93035-0

include when "difficulties of obtaining an alternate judge are proven by the court's

factual findings to be insurmountable").

The statute is unqualified. "No judge ... shall sit to hear or try any action or

proceeding when it shall be established ... that said judge is prejudiced against any

party." RCW 4.12.040(1). "Any party ... may establish such prejudice by motion,

supported by affidavit ... that such party ... believes that he or she cannot[] have a

fair and impartial trial before such judge." RCW 4.12.050(1). "'[A] party litigant is

entitled, as a matter of right, to a change of judges upon the timely filing of a motion

and affidavit of prejudice."' Lindquist, 172 Wn.2d at 129 (quoting Dixon, 74 Wn.2d

at 702); see Parra, 122 Wn.2d at 595 (emphasizing the "mandatory,

nondiscretionary nature of affidavits of prejudice"); Dennison, 115 Wn.2d at 620

(confirming that a litigant is entitled to change "'as a matter of right"' (quoting

LaMon v. Butler, 112 Wn.2d 193, 201, 770 P.2d 1027 (1989))); Espinoza, 112

Wn.2d at 823 (confirming change is a "matter of right"); Marine Power & Equip.

Co., 102 Wn.2d at 463 (noting that a party has the "right to one change of judge

without inquiry"), 460 (once prejudice is deemed established, the judge is "' divested

of authority to proceed further"' (quoting Dixon, 74 Wn.2d at 702)); Maxfield, 46

Wn.2d at 829 (confirming change is "a matter of right").

Absent extraordinary circumstances, the prejudice established by RCW

4.12.050 is, in and of itself, harmful prejudice. See State v. Britton, 27 Wn.2d 336,

17 State v. Lile, No. 93035-0

341, 178 P.2d 341 (1947) (An error is harmless if it does not "prejudic[e] ... the

substantial rights of the party."). A trial court's failure to grant the requested change

is a basis for reversal.

B. The trial court did not abuse its discretion in limiting Lile's impeachment during cross-examination

The confrontation clause of the Sixth Amendment (applicable to the state via

the Fourteenth Amendment) guarantees the right of a criminal defendant "to be

confronted with the witnesses against him." U.S. CONST. amends. VI, XIV.

Similarly, article I, section 22 of the Washington Constitution guarantees the right

of a defendant to "meet the witnesses against him face to face." Cross-examination

is the "principal means by which the believability of a witness and the truth of his

testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed.

2d 347 (1974). But this right is not absolute. "The scope of such cross examination

is within the discretion of the trial court." State v. Russell, 125 Wn.2d 24, 92, 882

P.2d 747 (1994); see State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002)

(confrontation right "limited by general considerations of relevance").

Rowles testified on direct examination that he did not "think [he'd] ever been

in a fight." 4 VRP at 508. On cross-examination, he testified he is "not a fighting

guy," id. at 528, and "not a fighter ... didn't want to be a fighter," id. at 538. Lile

sought to challenge those statements with the following question: "'[I]sn't it true

you have a harassment order for pushing somebody down on the bed, getting control 18 State v. Lile, No. 93035-0

over them, wouldn't you call this a fight?"' Id. at 545. The trial court denied the

request. Id. at 548-49.

We review a cross-examination scope limitation for a manifest abuse of

discretion. State v. Garcia, 179 Wn.2d 828, 844, 318 P .3d 266 (2014 ); Darden, 145

Wn.2d at 619. A manifest abuse of discretion arises when "the trial court's exercise

of discretion is 'manifestly unreasonable or based upon untenable grounds or

reasons."' Darden, 145 Wn.2d at 619 (quoting State v. Powell, 126 Wn.2d 244,258,

893 P.2d 615 (1995)). We need not agree with the trial court's decision for us to

affirm that decision. We must merely hold the decision to be reasonable.

Lile alleges Rowles' testimony about not being a fighter opened up the door

to cross-examination on the issue and it was reversible error for the trial court to

deny him the opportunity to pursue this line of questioning. He cites State v. Gefeller

to support this assertion. 76 Wn.2d 449, 458 P.2d 17 (1969). But Gefeller is

distinguishable. At issue in Gefeller was the trial court's decision to permit cross-

examination. Id. at 454-55. At issue in this case was the trial court's decision to limit

cross-examination. Nor does Gefeller stand for the proposition Lile asserts: that

Rowles, absent an effort by the State to demonstrate his peaceful nature, can open

up the door to this line of questioning. In Gefeller, the defense initiated a line of

questioning with a witness, dropped it when it proved fruitless, and then claimed

error when the court allowed the State to pursue it. Id. Here, the prosecuting

19 State v. Lile, No. 93035-0

attorney's question of "how come you didn't like defend yourself," 4 VRP at 508,

does not appear intended to put forth testimony demonstrating Rowles peaceful

nature. See id. at 543-44 (prosecuting attorney claims "there weren't any questions

elicited to [bring forth Rowles non-violent nature]"). Rather, it followed earlier

testimony from Millman and Officer Woodward describing Lile' s unexpected and

overly aggressive reaction to incidental contact with Rowles, and appears intended

to further demonstrate Lile's unexpected and overly aggressive reaction by virtue of

Rowles inability to respond.

Further, ER 608 squarely addresses the impeachment evidence Lile sought to

introduce. It provides that specific instances of a witness' conduct, introduced for

purposes of attacking that witness' credibility, may not be proved by extrinsic

evidence. But specific acts may be inquired into on cross-examination, at the

discretion of the trial court, if probative for truthfulness. ER 608(b )(1 ). "In

exercising its discretion, the trial court may consider whether the instance of

misconduct is relevant to the witness' veracity on the stand and whether it is germane

or relevant to the issues presented at trial." State v. 0 'Connor, 155 Wn.2d 335, 349,

119 P .3d 806 (2005).

We review a trial court's decision to admit or exclude evidence under ER

608(b )(1) for an abuse of discretion and reverse "only ifno reasonable person would

have decided the matter as the trial court did." Id. at 351; see State v. Clark, 143

20 State v. Lile, No. 93035-0

Wn.2d 731, 766, 24 P.3d 1006 (2001) (applying similar standard). We must assess

whether it was reasonable for Judge Garrett to conclude the allegations contained

within Foster's final protection order petition were irrelevant to Rowles' truthfulness

and collateral to the issues at hand. O'Connor, 155 Wn.2d at 350-52. We do not

make our own relevancy determination.

While this is perhaps a close call, we cannot say the trial court abused its

discretion in limiting Lile's cross-examination of Rowles. A reasonable person may

have decided the matter as Judge Garrett did. Id. at 351. On this basis, we affirm the

trial court.

Lile claims his inquiry into Rowles' abuse of Foster was permissible under

ER 608(b )(1) as "who started the fight was exclusively a credibility conflict between

the Navy men and Rowles and his friends, and because Rowles' statements that he

was 'not a fighter' were demonstrably false." Corrected Suppl. Br. of Pet'r at 18.

But given the overwhelming evidence that Lile was the aggressor, any evidence

resulting from the line of inquiry would have been irrelevant. Lile never put who

started the fight at issue. Millman testified that Lile "just turned and started

swinging." 3 VRP (Mar. 18, 2014) at 286. According to Officer Woodward, neither

Taylor Powell nor Rowles made any aggressive moves before Lile's first punch; in

fact, Rowles was "kind of backing up" when Lile punched him. 2 VRP at 101. Lile

admitted he threw the first punch. See 6 VRP at 868 (claiming "I hit him because I

21 State v. Lile, No. 93035-0

was very frightened"). Further, Lile's own witnesses indicated that Lile appeared to

do so in aggression. Owens said that Lile appeared more "irritate[ d]" than scared by

Rowles' shoulder check and that if Owens had been in the same situation as Lile, he

"wouldn't have thrown the first punch." Clerk's Papers (CP) at 384-85, 391-92.

According to Duff, Lile "punched [] both guys [Rowles and Taylor Powell] twice

each" before anyone had time to react, and even after the fracas started Duff did not

see "any [punches from Rowles and or Taylor Powell] connect with ... Lile." 5 VRP

at 720, 722.

Lile asserts State v. York, 28 Wn. App. 33, 621 P.2d 784 (1980), supports the

proposition that ER 608(b) permits his desired method of impeachment. In York, the

State elicited testimony from a witness on direct examination regarding the witness'

favorable law enforcement background. The State then sought to exclude cross-

examination into unfavorable aspects of the witness' law enforcement background.

Id. at 37. The court found "as a matter of fundamental fairness" the defense should

have been allowed to cross-examine for "negative characteristics of the one most

important witness" when the State sought to introduce the positive characteristics.

Id. As discussed above, the State did not seek out testimony from Rowles whether

he was a fighter. Instead, Rowles offered the testimony and did so primarily during

cross-examination. York is inapposite.

22 State v. Lile, No. 93035-0

Again, our task is to assess whether the trial court acted reasonably in denying

Lile's ER 608(b )(1) impeachment request. Following Rowles' assertions that he was

not a fighter, Lile made an offer of proof. That offer contained allegations from

Foster's last protection order petition. 10 According to Judge Garrett, this offer of

proof represented only evidence of privacy violations, not violent acts, aside from

an accusation that Rowles forcibly took Foster's phone while holding her down on

the bed and another accusation that he threatened to beat two of her male coworkers

for speaking with her. 11

10 Judge Garrett had previously reviewed this petition, along with two earlier petitions- one of which Foster later withdrew-before she ruled on Lile's pretrial ER 404(b) motion in limine. Judge Garrett denied Lile's motion in limine after finding "the evidence regarding Mr. Rowles' relationship with women in his life ... [was not] sufficiently similar to the situation here" to allow for admission. 1 VRP at 12. This made sense. The standard for admission under ER 404(b) for evidence of a common plan or scheme, as requested by Lile in his motion in limine, CP at 192, is that the evidence of past wrongs must demonstrate "'separate but very similar crimes."' State v. Gresham, 173 Wn.2d 405, 422, 269 P.3d 207 (2012) (emphasis added) (quoting State v. Lough, 125 Wn.2d 847, 855, 889 P.2d 487 (1995)). All aspects of Rowles' past acts, including the sex of the victim, would have been relevant. Conversely, the victim's sex would not have been relevant when Judge Garrett considered Lile's ER 608(b)(l) request to impeach Rowles' statement that he was not a fighter. And nothing in the record indicates Judge Garrett considered the victim's sex for purposes of Lile's ER 608(b)(l) impeachment request. 11 The concurring opinions discuss allegations contained in three of Foster's protection order petitions. See concurrence (Gordon McCloud, J.) at 8 n.2; concurrence (Madsen, J.) at 6. But Lile offered only the final protection order petition to the trial court for impeachment purposes. And that petition contained only the allegations discussed above. See 4 VRP at 54 7 (offering exhibit 21 for impeachment purposes); CP at 222 (describing exhibit 21 as the case record of case no. 12-2-02787-7), CP at 87 (Lile's summary of allegations contained in case no. 12-2-02787-7), CP at 150-59 (the petition itself). In assessing whether the trial court abused its discretion in denying his request to impeach Rowles, this court must limit its analysis to the allegations contained in Lile's offer of proof on the issue to the trial court. We cannot look to information contained outside of this record, as the concurrences do, to assess the trial court's performance. 23 State v. Lile, No. 93035-0

The trial court held, "[T]hat's not laudable conduct, I don't find enough

relevance or enough connection between that conduct and the conduct that is

asserted or that could be asserted here .... I don't see that these protection order

allegations ... accuse him of fighting." 12 4 VRP at 548-49. As the Court of Appeals

noted in affirming the trial court, "While the evidence suggests that Rowles may be

abusive and possessive in romantic relationships, nothing in the evidence indicates

that Rowles punched his girlfriends or that he ever fought with a third party

stranger." Lile, 193 Wn. App. at 198-99. The type of hand-to-hand combat at issue

in this case is distinguishable from the types of altercations described in Foster's

petition. Furthermore, Foster's petition did not contain specific allegations of

dishonesty by Rowles. 13 Therefore, it was reasonable for Judge Garrett to find such

allegations collateral to the issues presented at trial and irrelevant to Rowles'

credibility. O'Conner, 155 Wn.2d at 349. 14

12 Foster did indicate when testifying in her protection order proceeding that she left a location once to avoid getting "in another physical fight" with Rowles. CP at 180. The "fight" she refers to, though, is the previous incident where Rowles held her down and forcibly took her phone. As discussed below, this incident is distinguishable from the mutual combat at issue here. 13 However, during the protection order proceeding, the court found Rowles not as credible

as Foster in the testimony he provided while he attempted to rebut the assertions contained within Foster's petition. CP at 181. 14 Lile claimed in some of his briefing to this court that his altercation with Rowles stemmed from Rowles taking offense to Lile's advances toward Millman and that these jealous tendencies are supported by the allegations in the petitions for protection orders. This argument was not presented to the trial court. Lile cannot claim an abuse of discretion for denying his request on a theory never presented to the trial court. Nor is it properly before us, as it was never presented to the Court of Appeals. State v. Duncan, 185 Wn.2d 430,435 n.2, 374 P.3d 83 (2016). 24 State v. Lile, No. 93035-0

The trial court did not abuse its discretion m precluding mqmry into

allegations of domestic abuse by Rowles.

IV. CONCLUSION

Judge Uhrig's continuance ruling was discretionary; and therefore he was

qualified to rule on Lile's severance motion. Consistent with Dennison and

Espinoza, we reject the Court of Appeals holding that rulings on agreed motions are

not discretionary. We explicitly reverse Floe on this issue. Furthermore, Judge

Garrett did not abuse her discretion in limiting Lile's cross-examination of Rowles.

We affirm the Court of Appeals affirmance of the trial court on both issues.

25 State v. Lile, No. 93035-0

26, State v. Lile (Travis L.)

No. 93035-0

MADSEN, J. (concurring in result only)-The distinction between discretionary

and nondiscretionary rulings is a false dichotomy. Instead, the correct distinction is

between matters that affect timing and calendaring but do not affect any of the issues in

the case, and those matters that do affect issues in the case, such as availability of

witnesses or other factors related to trying the case. An affidavit of prejudice must be

made prior to the judge ruling on a matter that indicates how the judge may rule in the

case-for that is the type of "discretion" that RCW 4.12.050(1) concerns. In this case,

Judge Ira Uhrig's ruling on the unopposed motion for a continuance did not indicate to

the parties how he might rule in the case. Therefore, the ruling was not a discretionary

ruling within the meaning of RCW 4.12.050(1), and Judge Uhrig improperly denied

Lile's affidavit of prejudice. Despite this error, I would find that reversal is not required

because the error was harmless. Judge Uhrig did not preside over Lile's trial, and Lile

failed to renew his motion to sever in front of Judge Deborra Garrett. Further, I would

find that limiting Lile's cross-examination of a key witness was an abuse of discretion.

But that too was harmless. No. 93035-0 Madsen, J. concurring in result only

1. The ruling on the continuance was not discretionary within the meaning of RCW 4.12.050(1), thus it was error to deny the affidavit of prejudice

A party has the right to disqualify a trial judge for prejudice without substantiating

the claim. RCW 4.12.040, .050. Such a motion must be granted provided that the motion

and affidavit are filed and brought to the attention of the judge before he or she has made

any order involving discretion. RCW 4.12.050(1). In State v. Parra, this court explained

that the purpose of this timeliness requirement is to avoid the absurd result of "parties

invoking the court's discretion and then waiting to see the disposition of the judge before

asserting the right." 122 Wn.2d 590,599, 859 P.2d 1231 (1993) (citing State ex. rel.

Lefebvre v. Clifford, 65 Wash. 313,315, 118 P. 40 (1911)). Thus, the orders involving

"discretion" that RCW 4.12.050(1) identifies are those by which the judge has somehow

indicated to the parties how he or she may rule in the case.

Whether an order is discretionary under RCW 4.12.050(1) is not about the fom1 of

the motion, such as "agreed" or "contested," but about whether there was something

substantive related to the case underlying the motion. See In re Marriage of Tye, 121

Wn. App. 817, 821, 90 P.3d 1145 (2004) ("it is the substance of the court's action as

discretionary or not that is critical"; case scheduling orders are ministerial acts, thus, the

judge exercised no discretion). In the present case, I would find that the continuance

ruling was not discretionary for purposes of RCW 4.12.050 because the court's ruling

2 No. 93035-0 Madsen, J. concurring in result only

indicated no predisposition on the issues in the case. 1 As we explained in Parr a, "If the

parties have resolved such issues among themselves and have not invoked the discretion

of the court for such resolution, then the parties will not have been alerted to any possible

disposition that a judge may have toward their case." 122 Wn.2d at 600.

Admittedly, granting or denying a motion necessarily involves some type of

discretion, but the same is true of the other preliminary matters that the majority

distinguishes. Arranging the calendar, setting a matter for hearing or trial, arraigning an

accused, and setting an amount for bail are all discretionary acts in the sense that the

judge has the general freedom to make those decisions. However, the legislature has

dictated that these acts will not be construed as rulings involving discretion within the

meaning ofRCW 4.12.050(1). See also LAWS OF 2017, ch. 42, § 2 ("[e]ven though they

may involve discretion, the following actions by a judge do not cause the loss of the right

1 The legislature's recent amendment to RCW 4.12.050(1) aligns with this interpretation. See LAWS OF 2017, ch. 42, § 2. Effective July 23, 2017, RCW 4.12.050 explicitly includes "rnling on an agreed continuance" in its list of actions that, even though they may involve discretion, do not cause the loss of the right to disqualify the judge. Id. (underline omitted). The recent amendments to RCW 4.12.050 make clear the type of acts that do not fall within the ambit of the statute-both now and before the amendment-because the amendment was a clarification of those acts. Hr'g on S.S.B. 5277 Before the H. Judiciary Comm., 65th Leg., Reg. Sess. (Wash. Mar. 22, 2017), audio recording by TVW, Washington State's Public Affairs Network, https://www.tvw.org/watch/?eventID=2017031256 (Judge Sean O'Donnell, Superior Court Judges Association President, testifying in support of Substitute Senate Bill 5277; bill meant to "clarify" what acts amount to disqualification). According to the majority, the amendment expanded the list of acts, rather than clarified it. Majority at 10 n.5. But the majority cites no legislative history to support its interpretation. Although testimony before a committee is not given great weight, it is certainly more persuasive than no history at all. The majority fails to explain adequately why we should not follow the legislature's clear expression that a rnling on an agreed continuance is not, and was not at the time of Lile's proceedings, the type of discretionary act that RCW 4.12.050 concerns.

3 No. 93035-0 Madsen, J. concun'ing in result only

to file a notice of disqualification against a judge" (underline omitted)). The same is tme

of the agreed continuance in this case. The motion occurred pretrial and was unopposed.

It was a calendaring matter, not a substantive mling on an issue in the case. By granting

the continuance at issue, Judge Uhrig did not tip his hand to the parties as to how he may

mle on substantive issues in the case. I would hold that Judge Uhrig erred in denying

Lile' s affidavit of prejudice.

2. Denying the affidavit of prejudice was not reversible error because a different judge presided over trial and Lile acquiesced in the error he now claims

"The right to peremptory removal of a judge without substantiating a claim of

actual prejudice is not of constitutional dimension, but statutory, flowing from RCW

4.12.040." State v. Gentry, 183 Wn.2d 749, 760, 356 P.3d 714 (2015). When a party

timely files an affidavit of prejudice, we deem prejudice established and the judge to

whom the affidavit is directed is divested of authority to proceed. State v. Cockrell, 102

Wn.2d 561, 565, 689 P.2d 32 (1984) (quoting State v. Dixon, 74 Wn.2d 700,702,446

P.2d 329 (1968)). But that does not mean that the improper denial of an affidavit of

prejudice automatically warrants reversal.

In State ex rel. LaMon v. Town of Westport, this court found that after the judge

improperly denied the filing of an affidavit of prejudice, the judge's subsequent mling

was not a reversible error. 73 Wn.2d 255,261,438 P.2d 200 (1968), overruled on other

grounds by Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984). This was because the

error was one that the appellant concurred, or at least acquiesced, in. Id. The same can

be said about Lile in this case. Lile claims he was prejudiced because he might have

4 No. 93035-0 Madsen, J. concurring in result only

prevailed on his motion for severance if another judge had considered it. But this

argument fails. First, Lile got exactly what he originally sought: his trial was held in

front of a different judge, Judge Garrett. Second, Lile cannot claim prejudice based on

Judge Uhrig's ruling on severance because he acquiesced in that ruling by failing to raise

it again before Judge Garrett. 2 Thus, under these circumstances, I would find that Judge

Uhrig's ruling on the motion to sever, although made without authority because he

improperly denied the affidavit of prejudice, had no effect on the outcome of the trial

beyond a reasonable doubt. It was not reversible error.

3. It was an abuse of discretion to prevent Lile from impeaching Christopher Rowles, but the error was harmless

Unlike the majority, I would find that the trial court abused its discretion by not

allowing Lile to impeach Rowles, but, again, the error was harmless. Trial courts must

ensure a fair trial to both sides. In this case, because the court limited Lile's

impeachment of Rowles, the State was able to leave the jury with a false impression of

Rowles's peacefulness, while Lile's theory of the case was based on Rowles's

aggression. The ruling failed to honor Lile' s right to confront the witnesses against him.

This error, however, was harmless beyond a reasonable doubt because Rowles was not

the only witness to the fight and there was overwhelming evidence that Lile escalated the

confrontation by throwing the first punch.

2 As the Court of Appeals pointed out, by failing to renew his motion to sever before the close of trial, Lile waived his right to appeal the issue of severance on the merits. CrR 4.4( a)(2); State v. Bryant, 89 Wn. App. 857,864,950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017, 978 P.2d 1100 (1999).

5 No. 93035-0 Madsen, J. concmTing in result only

Article I, section 22 of the Washington Constitution guarantees an accused the

right to "meet the witnesses against him face to face." The Sixth Amendment to the

United States Constitution similarly provides an accused the right to "be confronted with

the witnesses against him." These constitutional rights protect a criminal defendant's

fundamental right to cross-examine witnesses against him. State v. York, 28 Wn. App.

33, 36, 621 P.2d 784 (1980) (citing Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct.

1038, 35 L. Ed. 2d 297 (1973)). Thus, criminal defendants have extra latitude in cross-

examination to show motive or credibility. Id. And any fact that goes to the

trustworthiness of a witness may be elicited if it is germane to the issue. Id. (citing State

v. Robideau, 70 Wn.2d 994,998,425 P.2d 880 (1967)). Although important, the right to

cross-examine is not absolute. A court may limit it in consideration of other legitimate

interests, such as relevancy. Id. at 37. But "denial or dimunition calls into question the

integrity of the fact-finding process and requires the competing interests be closely

examined." Id. (citingBergerv. California, 393 U.S. 314,315, 89 S. Ct. 540, 21 L. Ed.

2d 508 (1969)).

After Rowles repeatedly stated that he had never been in a fight and was "not a

fighter," 4 Verbatim Report of Proceedings at 508, 528, 538, Lile sought to impeach

Rowles with evidence from a protection order petition that a former partner filed against

him. Id. at 545. Such impeachment comports with ER 608(b), which states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or

6 No. 93035-0 Madsen, J. concurring in result only

untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Rowles's statements that he was "not a fighter" were directly contradictory to the

allegations in the protection order petitions that Lile sought to offer as evidence of

Rowles's character for truthfulness or untruthfulness. The issue was also not collateral.

Whether Rowles was a peaceful or aggressive person was important to Lile's version of

events. Lile's theory of the case was that Rowles purposefully bumped into Lile's

shoulder after seeing Lile exchange profanities with Rowles's girlfriend. By limiting

Lile's cross-examination of Rowles, the jury was left with an impression that Rowles was

a peaceful person who had never been in and would never want to be in a fight. Under

ER 608(b), the evidence was probative ofRowles's truthfulness. I would find the trial

court abused its discretion.

I also reject any implication that the type of violence necessitating the protection

order is meaningfully different from the violence here. The Court of Appeals reasoned

that although the evidence suggests that Rowles "may be abusive and possessive in

romantic relationships, nothing in the evidence indicates that Rowles punched his

girlfriends or that he ever fought with a third party stranger." State v. Lile, 193 Wn. App.

179, 198-99, 373 P.3d 247 (2016). I find this distinction troubling. It minimizes the

physical aggression alleged in the protection order petition, and it ignores the threats of

further physical violence. Further, it does not account for Lile's theory of the case, where

7 No. 93035-0 Madsen, J. concmring in result only

Rowles bumped into him in response to seeing him interact with Rowles's girlfriend-a

situation where possessiveness in that romantic relationship is highly relevant. As Lile

aptly points out, physical aggression in an intimate partnership is not distinct from

physical aggression on the street. Such an approach risks minimizing the experiences of

, survivors and normalizing domestic violence.

Like the Court of Appeals, I would find that it was error to deny Lile' s affidavit of

prejudice and it was error to limit Lile's cross-examination of Rowles, but these errors

were harmless. Therefore, I concur in result only.

8 No. 93035-0 M:dsen, J. , corurring :in result only

9 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

GORDON McCLOUD, J. (concurring)-! agree with the majority that Judge

Ira Uhrig's ruling on the agreed motion for a continuance in this case was

discretionary, and that he was therefore qualified to rule on Travis Lee Lile's motion

for severance. Majority at 16. But I disagree with the majority's conclusion

regarding Lile' s right to cross-examine Christopher Rowles after Rowles-at the

State's initial prompting-opened himself up to such questioning by making

repeated statements such as "I'm not a fighter" and "I don't think I've ever been in

a fight." 4 Verbatim Report of Proceedings (VRP) (Mar. 19, 2014) at 538, 508.

In a criminal proceeding, a defendant's "right of confrontation and cross-

examination is an essential and fundamental requirement for the kind of fair trial

which is this country's constitutional goal." Pointer v. Texas, 380 U.S. 400,405, 85

S. Ct. 1065, 13 L. Ed. 2d 923 (1965). This vital protection is guaranteed by both our

federal and state constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22.

To be sure, "trial judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination based

1 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

on concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness' safety, or interrogation that is repetitive or only marginally

relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed.

2d 674 (1986). The trial court has this discretion to exclude irrelevant, harassing, or

potentially prejudicial evidence to protect the integrity of the fact-finding process.

Id.; State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).

But some things are "always relevant." Davis v. Alaska, 415 U.S. 308,316,

94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (quoting 3A JOHN HENRY WIGMORE,

EVIDENCE IN TRIALS AT COMMON LAW§ 940 (Chadbourn rev. 1970)). This includes

specific attacks on a witness's credibility on issues directly relevant to the case at

hand. Id.

The defendant in this case, Travis Lile, sought to make just this sort of specific

attack on Rowles's credibility by cross-examining Rowles on facts that directly

contradicted his assertions-in this assault case-that he was "not a fighter." 4 VRP

(Mar. 19, 2014) at 538. The trial court barred Lile from doing so, finding that there

was not "enough relevance or enough connection between that [domestic violence]

conduct and the conduct that is asserted or that could be asserted here" to allow it.

Id. at 548. The Court of Appeals affirmed, writing that "Rowles's behavior leading

to the entry of the protection orders was factually different than the behavior

2 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

involved with being the aggressor in a fight with a male stranger" because that prior

"incident of assault involved a time when Rowles was mad at his then-girlfriend."

State v. Lile, 193 Wn. App. 179,202,198,373 P.3d 247 (2016), review granted, 186

Wn.2d 1016, 380 P.3d 523 (2016).

This violated Lile's constitutional rights under the confrontation clause with

respect to his convictions for second degree assault of Amanda Millman and fourth

degree assault of Rowles. See U.S. CONST. amend. XIV; State v. Garcia, 179 Wn.2d

828,844,318 P.3d 266 (2014); State v. Darden, 145 Wn.2d 612, 620-21, 41 P.3d

1189 (2002). However, because I conclude that this constitutional error was

harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18, 24,

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), I concur in the decision to affirm Lile's

conviction.

ANALYSIS

I. We Review Constitutional Challenges, Such as Lile's Confrontation Clause Claim Here, De Novo

The majority is correct that we review a trial court's rulings on purely

evidentiary matters for abuse of discretion. City of Spokane v. Neff, 152 Wn.2d 85,

91, 93 P.3d 158 (2004) (citing State v. Ellis, 136 Wn.2d 498, 504, 963 P.2d 843

(1998)). Lile's initial attempt to get the State's witness's prior acts of domestic

violence into evidence under ER 404(b)-and the trial court's decision to exclude

3 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

it-were evidentiary matters. They are therefore properly reviewed under that abuse

of discretion standard.

But when the State subsequently opened the door to impeachment on this

issue, and the trial court prohibited it, Lile raised a different issue. He argues that

by barring admission of Rowles's prior fighting conduct, the trial court excluded

relevant impeachment evidence and limited his ability to cross-examine Rowles in

violation of his confrontation right under the constitution. Corrected Suppl. Br. of

Pet'r at 17-18. Whether this limitation amounted to a violation of Lile's

constitutional rights is a question oflaw, which is therefore subject to de novo review

by this court. 1 State v. McCuistion, 174 Wn.2d 369, 387, 275 P.3d 1092 (2012)

(citingAmunrudv. Bd. ofAppeals, 158 Wn.2d 208,215, 143 P.3d 571 (2006)); State

v. Jones, 168 Wn.2d 713,719,230 P.3d 576 (2010) ("We review a claim of a denial

of Sixth Amendment rights de novo.").

1 Even under the majority's abuse of discretion approach, Lile would still be entitled to relief on his claim here. This is because "a court 'necessarily abuses its discretion by denying a criminal defendant's constitutional rights."' State v. Iniguez, 167 Wn.2d 273, 280, 217 P.3d 768 (2009) (quoting State v. Perez, 137 Wn. App. 97, 105, 151 P.3d 249 (2007)).

4 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

II. The State's Question-and Rowles's Predictable Response to That Question-Opened the Door to Impeachment of His Credibility

A. Either Party, or Their Witnesses, Can Open the Door to Impeachment

A party-or that party's witness-who introduces evidence that would

otherwise leave the jury with a "false impression," United States v. Whitworth, 856

F.2d 1268, 1285 (9th Cir. 1988), or an "incomplete picture," State v. Lord, 117

Wn.2d 829, 894, 822 P.2d 177 (1991), of a material issue opens the door for his or

her opponent to introduce rebuttal evidence, even if such evidence may not

otherwise be admissible as substantive evidence.

Because this doctrine is focused on getting to the truth of the matter, it is not

limited to correcting the false or incomplete characterizations of only one side-or

of only one party. Thus, this court, and the federal courts, have at various times

entertained claims that the defendant, defense counsel, the State, or the State's

witness opened the door to the opponent's rebuttal evidence. See, e.g., United States

v. Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999) (defendant's testimony portraying

himself as a "'paragon of virtue,"' which "was volunteered and often not responsive

to questions posed by his lawyer," opened the door to impeachment with otherwise

inadmissible evidence); In re Det. a/West, 171 Wn.2d 383,400,256 P.3d 302 (2011)

(testimony by State's witness regarding defendant's decision to leave treatment

5 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

opened the door to evidence of defendant's rationale for doing so); State v. Thomas,

150 Wn.2d 821,859, 83 P.3d 970 (2004) (evaluating whether State opened the door

to cross-examination on a prior suspect's possible motives to murder the victim);

Lord, 117 Wn.2d at 892 (statement by defendant's father that defendant was '"a

good boy"' opened the door to cross-examination by the State on otherwise

inadmissible details regarding defendant's prior crimes); State v. Gefeller, 76 Wn.2d

449, 454, 458 P.2d 17 (1969) (prosecutor permitted to inquire of State's witness, a

police detective, about lie detector test on redirect "because the matter of a lie

detector test was first introduced by defen[se counsel] on cross-examination" of that

detective).

On the record of this case, State's witness Rowles first asserted that he was

not the fighting kind in response to a question posed by the State. His answer was

"neither volunteered nor unresponsive." Gefeller, 76 Wn.2d at 455. And it was

entirely predictable. The prosecutor asked Rowles, "Well, how come you didn't like

defend yourself?" 4 VRP (Mar. 19, 2014) at 508. Rowles's response contrasted

starkly with Lile's theory that Lile assaulted Rowles in self-defense because he felt

threatened by Rowles's aggressive behavior:

Everything kind of caught me by surprise to be honest with you. I don't get into too many fights. I don't think I've ever been in a fight. So it kind of caught me by surprise and I was knocked back a little bit against a car.

6 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

Id. Once the State elicited this explicit claim, it opened the door, as the Court of

Appeals recognized, to impeachment evidence "that Rowles is a fighter or was the

initial aggressor in the fight-evidence directly contradicting Rowles's testimony

and challenging his credibility." Lile, 193 Wn. App. at 201.

B. Rowles 's Prior Assault of His Ex-Girlfriend Constituted "Fighting"

This is precisely the kind of evidence that Lile attempted to present.

Specifically, defense counsel sought to ask Rowles, "'Isn't it true you have a

harassment order for pushing somebody down on the bed, getting control over them,

wouldn't you call this a fight?'" 4 VRP (Mar. 19, 2014) at 545. The question was

based on allegations, in 2011 and 2012, that Rowles was violent and controlling

toward his girlfriends at that time. On one occasion, a girlfriend alleged that Rowles

"kept shoving [her] back on the bed" to prevent her from leaving and "grabbed [her]

wrist and twisted it backwards," causing her to "[fall] to the floor in pain, with [the

couple's infant son] still in [her] arms." Clerk's Papers (CP) at 123. A few months

later, that girlfriend returned to court and stated that Rowles got angry when

someone tried to text her, grabbed her arms and wrists, got on top of her, and pinned

her to the bed until she fell off the bed, injuring her neck. CP at 153. She also noted

that Rowles threatened to "beat the asses of the two guys at [her] work because [she]

7 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

talked to them." CP at 154. As a result of these incidents, the girlfriend petitioned

for civil domestic violence protection orders in Whatcom County Superior Court.

CP at 120-30, 150-59.

The trial court found that while this conduct was "not laudable," it was also

not "sufficiently similar" as to be appropriate to impeach Rowles's claims. 2 4 VRP

(Mar. 19, 2014) at 548-49. The Court of Appeals agreed that while allegations of

prior "fighting" by Rowles would be admissible to challenge his credibility after he

claimed that he hadn't "ever been in a fight," id. at 508, his ex-girlfriend's allegations

did not meet this standard. Lile, 193 Wn. App. at 201. In other words, both courts

found that pinning his girlfriend down by the arms, grabbing and twisting her wrists,

and physically confining her to a room was not "fighting" in the same way as getting

into a fistfight with another man.

2 The majority claims that all but one of these incidents are "outside of this record," but the record is clear that defense counsel raised not one but three of Rowles's prior acts of domestic violence with the court. Majority at 23 n.11; 4 VRP (Mar. 19, 2014) at 543 (referencing "three events" previously presented to the court during defense's ER 404(b) motion, CP at 85-194). The trial court appears to have based its ruling that the domestic violence was not relevant-and therefore not admissible as impeachment evidence-on the October 14, 2012 incident in which Rowles allegedly grabbed his girlfriend's arms and wrists, pinned her to the bed to wrestle her phone away from her, and threatened to "beat the asses" of her male coworkers. Id. at 548; see also CP at 150-59 (Pet. for Order for Prot. of Nicole Foster (Oct. 22, 2012)). But regardless of whether one or three incidents formed the basis of the court's decision, the fact remains that defense counsel raised and argued all of them. In addition, Rowles's physical assault of his then-girlfriend-for which a domestic violence order for protection was granted, CP at 167-71-constituted "fighting" just like his alleged mutual combat with Lile. 8 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

Until the past several decades, our laws-and our courts-did not consistently

recognize physical violence against women as serious criminal conduct. Indeed, to

gain this recognition, advocates for legal reform had to fight against a long standing

view in this country that assault against women was a private, family matter rooted

in a husband's historical "duty to control and chastise" his wife, and not a matter of

concern for the State. Marvin Timothy Gray, Historical Legal Context in Domestic

Violence Custody Cases, in DOMESTIC VIOLENCE, ABUSE, AND CHILD CUSTODY:

LEGAL STRATEGIES AND POLICY ISSUES 2-6 (Mo Therese Hannah & Barry Goldstein

eds., 2010). Restrictions on police conduct, such as the rule-in force until the late

1970s in all but 14 states-that police had to witness a misdemeanor to make a

warrantless arrest had the practical effect of yielding far more arrests for assaults

between strangers in public than for assaults against women in the privacy of the

home. See EVES. BUZAWA & CARL. G. BUZAWA, DOMESTIC VIOLENCE: THE

CRIMINAL JUSTICE RESPONSE 122 (James A. Inciardi ed., 2d ed. 1996). Such

incidents were also frequently routed away from the criminal justice system and into

specialized family courts, which were designed to help participants "work out

problems within the family structure ... rather than address crimes committed,"

further reinforcing the message that assault against women isn't truly a crime. Id. at

33.

9 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

Declining to recognize what transpired between Rowles and his ex-girlfriend

as being equal in nature to the physical altercation that allegedly transpired between

Lile and Rowles rings of our earlier misunderstandings of the dynamics of violence

against women. Because I believe that both incidents equally constituted "fighting,"

and the domestic violence allegations thus bore directly on Rowles's credibility in

light of his testimony at trial, I would hold that the trial court erred in preventing Lile

from impeaching Rowles' s testimony on this point.

III. Barring Lile from Impeaching Rowles Based on Rowles' s Prior Fighting Violated Lile' s Rights under the Confrontation Clause

We apply a three-part test to determine whether a trial court's ruling limiting

defense cross-examination violates a defendant's constitutional confrontation clause

rights. Darden, 145 Wn.2d at 621-23 (citing Hudlow, 99 Wn.2d at 15). To establish

such a violation, ( 1) the defendant's evidence must be relevant, (2) the State must

show that the "evidence is so prejudicial as to disrupt the fairness of the fact-finding

process at trial," and (3) the State's interest in excluding the prejudicial evidence

must outweigh the defendant's need for the information sought to be admitted. Id.

at 622.

In Lile' s case, all of the argument at the trial court seems to have been over

the first prong-whether Rowles' s past altercations were relevant to his claims at

trial that he was "not a fighter." 4 VRP (Mar. 19, 2014) at 538. For the reasons

10 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

articulated above, I believe that it was, and that the State did not--and could not-

show that admitting this evidence would be prejudicial enough to "disrupt the

fairness of the fact-finding process at trial." 3 Darden, 145 Wn.2d at 622. On the

contrary, the information was relevant in part because it served to enhance the fact-

finding process-by helping to provide "a complete illumination of a case" instead

of"'a partial or speculative presentation of the facts."' Doyle v. Ohio, 426 U.S. 610,

629 n.8, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) (Stevens, J., dissenting) (quoting

United States v. Nixon, 418 U.S. 683, 709, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974)).

Thus, the trial court erroneously excluded this evidence and, in so doing,

infringed on Lile's constitutional rights.

IV. The Trial Court's Constitutional Error Was Harmless beyond a Reasonable Doubt

Violations of a defendant's rights under the confrontation clause are subject

to Chapman harmless error review. VanArsdall, 475 U.S. at 684. Under Chapman,

the State bears the burden of proving that constitutional error is harmless beyond a

reasonable doubt, 386 U.S. at 24, which may be met "if there is overwhelming

3 Indeed, the State has not articulated any interest in excluding Rowles's prior domestic violence conduct-much less a "compelling" one. Hudlow, 99 Wn.2d at 15. Instead, before this court, it continues to argue that Rowles's prior conduct was not relevant. Resp 't' s Suppl. Br. at 18-19 ("The judge did not abuse her discretion because Rowles' harassment of his ex-girlfriend was not relevant to rebut Rowles' testimony he wasn't a fighter in an incident involving total strangers."). 11 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

evidence of the defendant's guilt that is not tainted by the error." State v. Barry, 183

Wn.2d 297, 303, 352 P.3d 161 (2015) (citing State v. Nist, 77 Wn.2d 227, 233-34,

461 P.2d 322 (1969)).

This inquiry looks at "the importance of the witness' testimony in the

prosecution's case, whether the testimony was cumulative, the presence or absence

of evidence corroborating or contradicting the testimony of the witness on material

points, the extent of cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution's case." Van Arsdall, 475 U.S. at 684. Looking

at the record as a whole, the evidence here meets that standard.

Lile argued self-defense for the assault of Rowles. To make this claim, Lile

first had to produce "some evidence" that he acted" in circumstances amounting to

self-defense, i.e., the statutory elements of reasonable apprehension of great bodily

harm and imminent danger." State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624

(1999) (citing State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993)). After that,

the State bore the burden of proving, beyond a reasonable doubt, that Lile did not

act in self-defense. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997).

Lile testified that just before he hit Rowles, someone struck him on the right

shoulder from behind. 6 VRP (Mar. 25, 2014) at 867-68. He also testified that as

he turned around, "two males"-Rowles and his friend-were "aggressively

12 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

walking towards him" and that "the tone of their voice was also aggressive." Id. at

868-69. Lile stated that he feared the men might hurt him and that he was "very

frightened." Id. He acknowledged that he threw the first punch. Id.

On the essential facts of this encounter, Lile and Rowles gave similar

testimony. Rowles also testified that Lile was walking backward and that the two

men "had bumped shoulders" as Lile turned around. 4 VRP (Mar. 19, 2014) at 505.

And Rowles testified that the two men exchanged words. Id. at 527.

The only material discrepancy is whether Rowles stepped toward Lile

immediately before Lile struck him. But there was ample other testimony presented

on this point aside from Rowles's and Lile's conflicting accounts-testimony from

Officer Jeremy Woodward, 2 VRP (Mar. 17, 2014) at 101 ("At the time of being

punched the first male that I saw looked like he was kind of backing up."); Amanda

Millman, 3 VRP (Mar. 18, 2014) at 286 (After the collision between Rowles and

Lile, "the Defendant just turned and just started swinging."); Sean Duff, 5 VRP

(Mar. 24, 2014) at 672 ("[A]s these two were walking toward him Travis was kind

of backing up a little bit in that direction and they were coming closer" before Lile

"took a swing with his right hand and hit the person that was right here."); Cameron

Moore, id. at 777 (After the collision, Lile "confronted the two people" and then

"both of them got in his face."); and Alan Owens, CP at 389 ("I mean they did walk

13 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

up to him, you know, they did kind of like get into his personal space" (Video Dep.

of Owens, Feb. 21, 2014)).

The overwhelming untainted evidence therefore supports the jury's rejection

of Lile's self-defense claim. For this reason, I concur in the decision to affirm.

CONCLUSION

The trial court erred in excluding impeachment evidence that directly

impeached Rowles' s credibility on a significant element of the defense. This

violated Lile's constitutional rights under the confrontation clause. The error,

however, was harmless beyond a reasonable doubt. I therefore concur.

14 State v. Lile (Travis Lee), No. 93035-0 (Gordon McCloud, J., concurring)

~~ ~ /