State v. Lile

• Citation: 373 P.3d 247,193 Wash.App. 179
• Decision Date: 29 February 2016
• Docket Number: No. 71912–2–I.,71912–2–I.
• Parties: STATE of Washington, Respondent, v. Travis Lee LILE, Appellant.
• Court: Court of Appeals of Washington

193 Wash.App. 179

373 P.3d 247

STATE of Washington, Respondent

v.Travis Lee LILE, Appellant.

No. 71912–2–I.

Court of Appeals of Washington, Division 1.

Feb. 29, 2016.

Publication Ordered April 12, 2016.

William Joseph Johnston, Attorney at Law, Bellingham, WA, for Appellant.

Hilary A. Thomas, Whatcom County Prosecutor's Office, James T. Hulbert, Attorney at Law, Bellingham, WA, for Respondent.

APPELWICK, J.

¶ 1 Lile appeals his assault convictions and his conviction for resisting arrest. He contends that the trial court erred when it denied his affidavit of prejudice as untimely. He claims that the trial court erred when it denied his motion to sever counts. Lile asserts that the trial court made several evidentiary errors. He argues that one of those evidentiary errors resulted in the State improperly impugning defense counsel. He maintains that the trial court erred when it denied his request for a self-defense jury instruction. He alleges that all these errors amounted to cumulative error warranting reversal. We affirm.

FACTS

¶ 2 On February 16, 2013, Taylor and Alyssa Powell¹ went out to drinks with Christopher Rowles and his girlfriend, Amanda Millman, in downtown Bellingham. Over the course of the evening, Millman had about a beer and a half and part of a mixed drink. Rowles had two drinks. Taylor was drinking more than Rowles. Alyssa became very intoxicated over the course of the evening. As the group decided to leave a nightclub at the end of the night, Millman was helping Alyssa walk, because she was so intoxicated that she was stumbling and swaying back and forth. The group walked down a hill on a sidewalk. The group encountered another group on the sidewalk—Travis Lile's group.

¶ 3 Lile and his friends also went out in downtown Bellingham that night. They had been drinking at a party earlier in the evening and had walked downtown to go to a bar. Lile was with Sean Duff, Cameron Moore, and Allen Owens. Lile, Owens, and Duff are in the Navy. Lile's group was walking up the hill on the same sidewalk as the other group walked down the hill.

¶ 4 As the groups walked toward each other, Taylor and Rowles were about 10 to 15 feet behind Millman and Alyssa. As Millman and Alyssa passed Lile's group, it appeared to Rowles that Millman bumped Lile accidentally with her purse or elbow. Lile's group yelled things at the women as they passed, and Lile called the women a profane name. Alyssa said, “F–U.” Millman turned around and saw Lile walking backward up the hill. At that point, Lile turned around and bumped shoulders with Rowles as Rowles walked down the hill. According to Rowles, the two passed each other, Lile then yelled, “hey” at Rowles, and when Rowles turned around, Lile punched him. According to Lile, he threw the punch, because Rowles and Powell were in his face and he felt threatened. A scuffle between the men ensued. Millman approached the fight yelling at the men to stop. Lile hit her. Lile's punch knocked Millman out, knocked some of her teeth out, and fractured one of her facial bones.

¶ 5 Officer Jeremy Woodward was on patrol in downtown Bellingham that night. Officer Woodward heard yelling and saw a commotion on a sidewalk near a bar. From his police car, he saw Lile punch Rowles in the face. Around the time Officer Woodward was exiting his police car, Lile had turned and punched Millman.

¶ 6 Officer Woodward ran toward Lile's location. At that point, Lile was already walking away. As Officer Woodward approached Lile, he yelled, “[S]top, police. You're under arrest.” Officer Woodward attempted to grab Lile by his shirt. But, Lile knocked Officer Woodward's hand away and took off running. Officer Woodward chased Lile who eventually tripped and fell. Officer Woodward struggled with Lile. Lile struck Officer Woodward on the right side of his face hard enough that it knocked Officer Woodward off balance and knocked his glasses off. The struggle continued. Officer Woodward tried to apply a lateral visceral neck restraint to get Lile to comply, but Lile tucked his chin and Officer Woodward was not able to apply it. Eventually, after another officer arrived, the officers were able to handcuff Lile.

¶ 7 Lile was charged with assault in the second degree for assaulting Millman, assault in the fourth degree for assaulting Rowles, assault in the third degree for assaulting Officer Woodward, and resisting arrest. After a jury trial, the jury found Lile guilty of all charges. Lile appeals.

DISCUSSION

¶ 8 Lile argues that the trial court erred when it denied his affidavit of prejudice as untimely. He contends that the trial court erred when it denied his motion to sever. He claims that the trial court abused its discretion when it refused to permit evidence of Rowles's previous orders of adjudication for domestic violence after Rowles testified on cross-examination that he was not a “fighting person.” Lile asserts that the trial court abused its discretion when it admitted evidence of whether Lile considered himself to be a warrior during cross-examination and when it required Lile to answer the State's question about the meaning of his tattoo. He maintains that the trial court abused its discretion when it allowed witnesses to testify about events that insinuated defense counsel improperly coached the defense witnesses. He alleges that it was error for the State to argue in closing argument that Owens said he would not have thrown a punch like Lile did in the same situation. Lile argues that the trial court erred when it denied Lile's proposed self-defense instruction for the third degree assault charge against a police officer, because Lile did not know that he was assaulting an officer. Finally, Lile claims that he is entitled to a new trial based upon the cumulative error doctrine.

I. Affidavit of Prejudice and Motion to Sever

¶ 9 Lile first argues that the trial court erred when it denied his affidavit of prejudice as untimely. Lile filed a motion and declaration of counsel to recognize his affidavit of prejudice and exclude Judge Ira Uhrig from making any rulings.

¶ 10 Affidavits of prejudice are governed by RCW 4.12.040 and 4.12.050. State v. Dennison, 115 Wash.2d 609, 619, 801 P.2d 193 (1990). RCW 4.12.040 is a mandatory, nondiscretionary rule allowing a party in a superior court proceeding the right to one change of judge upon the timely filing of an affidavit of prejudice under RCW 4.12.050. Id.

¶ 11 RCW 4.12.050(1) provides some limitations for when the motion and affidavit may be filed. It states that the party may file the motion,

PROVIDED, That such motion and affidavit is filed and called to the attention of the judge before he or she shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion, but the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the 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.

Id.

A. Discretionary Ruling

¶ 12 Whether the trial court properly denied Lile's motion for an affidavit of prejudice turns on whether Judge Uhrig made any discretionary rulings prior to Lile filing the affidavit. After Lile was arraigned, the parties brought several motions to continue before Judge Deborra Garrett. After many additional continuances, a trial setting order was filed on January 15, 2014 setting the matter for a January 22, 2014 status conference and February 3, 2014 for trial.² Judge Uhrig presided at the hearing on January 22. Judge Uhrig orally granted a motion to continue the trial date. A written order continuing the trial date from February 3 to February 10 was signed by Judge Uhrig and filed on February 3.

¶ 13 On February 6, the parties went before Judge Uhrig on Lile's motion to sever. As soon as the parties went on record, William Johnston informed Judge Uhrig that Lile filed an affidavit of prejudice against him that morning. The State argued that the affidavit was untimely, because Judge Uhrig made a discretionary decision on January 22 when he granted the motion to continue. On February 21, Judge Uhrig entered a written order formally rejecting Lile's affidavit of prejudice as untimely because of his previous oral continuance and because he had entered a written order continuing the trial from February 3 to February 10.

¶ 14 Lile argues that Judge Uhrig's ruling on the motion to continue was not discretionary. The general rule is that granting or denying a continuance motion is a discretionary ruling, because the court must consider various factors such as diligence, materiality, due process, a need for an orderly procedure, and the possible impact of the result on the trial. In re Recall of Lindquist, 172 Wash.2d 120, 130–, 258 P.3d 9 (2011). The general rule applies in cases in which one party has unilaterally moved for a continuance. See, e.g., Lindquist, 172 Wash.2d at 126, 258 P.3d 9 ; State v. Maxfield, 46 Wash.2d 822, 829, 285 P.2d 887 (1955) ; Donaldson v. Greenwood, 40 Wash.2d 238, 241–42, 242 P.2d 1038 (1952). But, a trial judge does not exercise discretion in finding no need to rule on a continuance. State v. Guajardo, 50 Wash.App. 16, 19, 21, 746 P.2d 1231 (1987).

¶ 15 The State argues that the general rule should control here and that Judge Uhrig's ruling was discretionary. The State relies predominantly on Lindquist to support its argument. Lindquist moved to continue a hearing, because he was on vacation and unable to appear. 172 Wash.2d at 126, 258 P.3d 9. A continuance would have delayed the hearing beyond a statutory time limit. Id. Therefore, the trial judge denied the motion. Id. Subsequently, the opposing party filed an affidavit of...