FILE l~l CLERKS OFFICE 8UPREM:: L ~ Jf{T, STATE OF WASHINCJTON
~201~ IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) Respondent, ) No. 87929-0 ) v. ) En Bane ) TIMOTHY DYE, ) ) Filed -SEP 2 6 2013 Petitioner. ) )
WIGGINS, J.-This case requires us to determine whether a court may
allow a witness to be accompanied by a comfort animal, here a dog, when
testifying during trial. Generally, we give trial courts wide discretion to control trial
proceedings, including the manner in which testimony will be presented. We
recognize that some trial procedures, such as providing a child witness with a toy
on the stand or shackling a defendant at trial, may risk coloring the perceptions of
the jury. But trial courts are capable of addressing these risks. Here, the trial court
acted within its broad discretion when it determined that Ellie, the facility dog
provided by the prosecutor's office to the victim Douglas Lare, was needed in light
of Lare's severe developmental disabilities in order for Lare to testify adequately.
We affirm the Court of Appeals. No. 87929-0
FACTS
I. Background
Douglas Lare suffers from significant developmental disabilities, including
cerebral palsy, Kallman Syndrome, and mild mental retardation. He has an IQ of 65
and, although he is 56 years old, he functions at a mental age ranging from 6 to 12 1 years old. While he lives independently and has been working for the Veteran's
Hospital for 23 years, Lare has difficulty with daily household activities, reading,
and writing, and he uses a payee service to handle his finances.
In 2005, Lare became romantically involved with his neighbor Alesha Lair. 2
Alesha was also dating the defendant, Timothy Dye, a fact that she did not reveal
to Lare. In 2007, Alesha moved into Lare's apartment, along with Alesha's sister,
her mother, and her mother's boyfriend. Alesha opened several credit cards in
Lare's name and charged them to their limits, using them to buy herself and her
family clothing, shoes, computers, beer, cigarettes, a DVD (digital video disk)
player, and cell phones. Alesha also withdrew money from Lare's retirement
account.
When Alesha and her family moved out of Lare's apartment, Alesha used
Lare's money to furnish her new apartment, and Dye moved in with Alesha. Alesha
took a key to Lare's apartment with her. In total, Alesha borrowed approximately
1 The defense characterizes Lare's mental age as between two and a half years and eight and a half years. 2 Because of the similarity of Lair and Lare's names, Alesha Lair is hereinafter referred to by her first name. No disrespect is intended.
2 No. 87929-0
$42,000 against the credit cards in Lare's name and withdrew $59,000 from Lare's
retirement account. 3
On January 19, 2008, Lare called 911 to report a DVD player and DVD
missing. On January 24, Lare woke up to find Dye rummaging through his
apartment. Dye asked Lare if he could take a DVD player and VCR (videocassette
recorder), but Lare refused. Dye nonetheless took some DVDs and a shelving unit.
The following day, Lare came home from work to find his front door propped open.
His television, VCR, DVD player, microwave, and a collectible knife were missing.
In a telephone interview with a police detective, Dye admitted that he had pawned
Lare's DVD player but claimed that Lare had voluntarily offered it to him. After the
detective stopped the recording, Dye told her that "he didn't have anything to worry
about because his name wasn't on any of the pawn slips and so there was no way
to pin it on him." Report of Proceedings (RP) (Dec. 6, 201 0) at 6.
After the burglaries, Lare became very fearful. He installed three locks on his
front door and began sleeping with mace, a frying pan, and two knives in his
bedroom for protection.
II. Trial and Appellate Proceedings
The State charged Dye with residential burglary in connection with the
January 24 incident, alleging as an aggravator that Lare was a vulnerable victim.
3 Alesha later pleaded guilty to theft in the first degree with the aggravating circumstance that Lare was a particularly vulnerable victim. Alesha's guilt is not at issue in this case and is not further discussed.
3 No. 87929-0
During Lare's defense interview, he was accompanied by a facility dog, 4
Ellie. Ellie is a golden retriever used by the King County Prosecuting Attorney's
Office to comfort children who are giving statements and testimony. Ellie was
trained by, and lives with, the prosecutor at Dye's trial.
Lare then requested Ellie's presence during his testimony at trial. The State
moved to allow Ellie to accompany Lare during his testimony, arguing that Lare
needed Ellie's assistance because of his "significant anxiety regarding his
upcoming testimony" and because he "functions at the level of a child and is fearful
of the defendant." Clerk's Papers (CP) at 104. The State further added during a
pretrial hearing that Lare was a "complete dog fan" and that Ellie had provided Lare
"tremendous comfort" during the previous interview. RP (Nov. 18, 201 0) at 28.
Dye's counsel said that she did not object to Ellie's presence "if [Dye] gets to
hold his baby while he is testifying," arguing that "the prejudice is extreme, allowing
the alleged victim in this case to pet the dog." /d. The trial court disagreed, noting
that Lare was a "developmentally disabled individual who has . . . significant
emotional trauma." /d. at 29. The court found that Ellie would be
very unobtrusive, will just simply be next to the individual, not be laying [sic] in his lap, and if we can accommodate somebody who has a developmental disability when they're testifying in the courtroom I think it's appropriate to do so.
4 The defense characterizes Ellie as a "comfort dog," Pet'r's Suppl. Br. at 1, a "therapy dog[]," Pet. for Review at 8, or a "support dog," Br. of Amicus Curiae Wash. Defender Ass'n & The Defender Ass'n at 1. However, the Court of Appeals adopted the term "'facility dog,"' State v. Dye, 170 Wn. App. 340, 343 n.5, 283 P.3d 1130 (2012), and we do the same.
4 No. 87929-0
/d. The court then suggested that if Dye had a similar disability, the court might be
receptive to allowing Dye to hold his baby on the stand.
Dye's counsel also argued that Ellie's presence might inflame Dye's allergies
or distract the jury. The court offered to accommodate Dye's allergies so long as he
could provide medical documentation of them. There is no indication in the record
that Dye did so.
At trial, Ellie sat with Lare during his testimony and accompanied him to the
restroom. Lare also fed Ellie treats and used Ellie as a table while reading an
exhibit. Ellie's presence is not otherwise indicated in the record except for her
introduction at the beginning of Lare's testimony:
Q ..... Who's your friend there with you?
A This is Ellie. Q. And why is Ellie there with you?
A Ellie is to help me and to make it easier for me. And I have treats here.
RP (Dec. 1, 201 0) at 10. At the end of the trial, the court instructed the jury not to
"make any assumptions or draw any conclusions based on the presence of this
service dog." CP at 53.
The jury convicted Dye of residential burglary but did not find that Lare was a
vulnerable victim. State v. Dye, 170 Wn. App. 340, 344, 283 P.3d 1130 (2012). Dye
appealed his conviction and the Court of Appeals affirmed the trial court, holding
that Ellie's presence did not compromise Dye's right of cross-examination, that the
prosecutor did not improperly give Lare a gift, that the trial court properly balanced
5 No. 87929-0
Lare's special needs against the possibility of prejudice, and that there was no
prejudice in the first instance. /d. at 346-48. Dye appealed on the ground that Ellie's
presence violated his right to due process and a fair trial.
ANALYSIS
I. Standard of Review
The trial court is generally in the best position to perceive and structure its
own proceedings. Accordingly, a trial court has broad discretion to make a variety
of trial management decisions, ranging from "the mode and order of interrogating
witnesses and presenting evidence," 5 to the admissibility of evidence, 6 to
provisions for the order and security of the courtroom. 7 In order to effectuate the
trial court's discretion, we grant the trial court broad discretion: even if we disagree
with the trial court, we will not reverse its decision unless that decision is
"manifestly unreasonable or based on untenable grounds or untenable reasons." In
reMarriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
Alleging that a ruling violated the defendant's right to a fair trial does not
change the standard of review. For example, we have reviewed for abuse of
discretion a trial court's ruling requiring the defendant to attend trial in shackles.
State v. Finch, 137 Wn.2d 792, 852, 975 P.2d 967 (1999); State v. Hartzog, 96
Wn.2d 383, 401, 635 P.2d 694 (1981 ). We have consistently reviewed courtroom
5 ER611(a). 6 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). 7 State v. Jaime, 168 Wn.2d 857, 865, 233 P.3d 554 (201 0); State v. Hartzog, 96 Wn.2d 383, 401, 635 P.2d 694 (1981 ).
6 No. 87929-0
procedures-allegedly prejudicial or not-for abuse of discretion standard, and Dye
presents no reason for us to depart from that standard now.
II. Abuse of Discretion
A trial court abuses its discretion only if any of the following is true:
(1) The decision is "manifestly unreasonable," that is, it falls "outside the range of acceptable choices, given the facts and the applicable legal standard";
(2) The decision is "based on untenable grounds," that is, "the factual findings are unsupported by the record"; or
(3) The decision is "based on untenable reasons," that is, it is "based on an incorrect standard or the facts do not meet the requirements of the correct standard."
Littlefield, 133 Wn.2d at 47. As a preliminary matter, the "manifestly unreasonable"
and "untenable reasons" tests require us to determine a legal standard to use.
A. Applicable legal standard
No controlling authority in Washington decides whether a dog may
accompany a witness during testimony. We have found only two on-point published
cases from other jurisdictions: People v. Tohom, 969 N.Y.S.2d 123 (N.Y. App. Div.
2013), and People v. Spence, 212 Cal. App. 4th 478, 151 Cal. Rptr. 3d 374 (2012).
In both cases, the witness at issue was a young girl who had been raped by her
father. Tohom, 969 N.Y.S.2d 123; Spence, 212 Cal. App. 4th at 485. The witness in
Spence was crying and upset as she recounted the events to health workers. 212
Cal. App. 4th at 485-86. Accordingly, the prosecutor moved for a "therapy dog" to
be present on the witness stand with the victim, citing concerns that the witness
might have an "emotional meltdown and refuse to testify." /d. at 512. The trial court
granted the motion, ruling that "it was reasonably probable that testifying might be
7 No. 87929-0
an intimidating situation for [the witness]," id., and that the dog was known to be
nondisruptive. The appellate court agreed, deferring without analysis to the trial
court's "implied findings of necessity." 8 /d. at 518. Similarly, in Tohom, the witness
was experiencing symptoms of posttraumatic stress disorder and did not feel
comfortable testifying because her family members blamed her for the situation.
969 N.Y.S.2d at 126-27. The trial court permitted the dog to be present during the
witness's testimony and the appellate division affirmed, citing the trial court's
discretion to "fashion[] an appropriate measure to address a testifying child
witness's emotional or psychological stress, based upon the particular needs of
that child." /d. at 132-33 (citations omitted).
The Court of Appeals has held that a child witness may hold a doll during
testimony. In State v. Hakimi, 124 Wn. App. 15, 18, 98 P.3d 809 (2004), the two
witnesses were young girls who had been allegedly molested by their babysitter,
Morteza Hakimi. Hakimi moved to prohibit the witnesses from carrying a doll to the
witness stand. The trial court heard argument on the motion, including testimony by
an expert in child interviewing that "girls in particular in the 9-year-old age range
may find security and comfort by holding a toy while answering questions posed to
them during examination at trial." /d. at 21. The trial court weighed the interests of
the witnesses against the potential prejudice to Hakimi and denied Hakimi's
motion, stating that
8 Defense counsel suggests that the result might also be attributed to a California statute allowing vulnerable victims to appear accompanied by support persons. CAL. PENAL CoDE § 868.5. However, the court in Spence, 212 Cal. App. 4th 478, did not rely on this statute. Furthermore, Washington has a similar support person statute. RCW 7.69A.030(3).
8 No. 87929-0
the doll will not be the subject of any questioning .... [C]hildren do present different issues and different considerations in terms of being witnesses in different cases. They have a peculiar need to find some security in an otherwise insecure setting, I suspect.
I don't think the doll unduly prejudices, to the extent it prejudices anyone at all; so I will allow it.
/d. at 20. The Court of Appeals affirmed the trial court, joining the many other
jurisdictions that have permitted child witnesses to hold a doll, toy, or other comfort
item on the witness stand, 9 or to be accompanied by a parent, victim advocate, or
other trusted individual. 10
Upon examining those cases that have allowed a child witness to use a
comfort item or support person, a few important similarities and differences
become clear. First, the cases are in largely universal agreement that abuse of
discretion is the correct standard. See, e.g., State v. Perovich, 2001 SO 96, 632
9 See Smith v. State, 2005 WY 113, 119 P .3d 411, 419; State v. Perovich, 2001 SD 96, 632 N.W.2d 12, 17; State v. Dickson, 337 S.W.3d 733, 743 (Mo. Ct. App. 2011 ); State v. Powell, 318 S.W.3d 297, 302 (Mo. Ct. App. 201 0); State v. McPhee, 58 Conn. App. 501, 508, 755 A.2d 893 (2000); State v. Marquez, 1998-NMCA-010, 124 N.M. 409, 413, 951 P.2d 1070; State v. Gibson, 973 S.W.2d 231, 245 (Tenn. Grim. App. 1997); Sperling v. State, 924 S.W.2d 722, 726 (Tex. App. 1996); People v. Gutkaiss, 206 A.D.2d 628, 631, 614 N.Y.S.2d 599 (1994); State v. Cliff, 1161daho 921,924,782 P.2d 44 (Ct. App. 1989); Commonwealth v. Amirault, 404 Mass. 221, 243, 535 N.E.2d 193 (1989). 10 See Holmes v. United States, 171 F.2d 1022, 1023 (D.C. Cir. 1949); Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988); State v. Jones, 178 W. Va. 519, 521, 362 S.E.2d 330 (1987); State v. Rogers, 213 Mont. 302, 307-08, 692 P.2d 2 (1984), overruled on other grounds by State v. Olson, 286 Mont. 364, 951 P.2d 571 (1997); State v. Keeley, 8 Utah 2d 70, 71-72, 328 P.2d 724 (1958); Hortman v. Vissage, 193 Ga. 596, 598, 19 S.E.2d 523 (1942); Evers v. State, 84 Neb. 708, 121 N.W. 1005, 1007-08, rev'd on other grounds, State v. Brockman, 184 Neb. 435, 168 N.W.2d 367 (1909); Boatright v. State, 192 Ga. App. 112, 116, 385 S.E.2d 298 (1989); Stanger v. State, 545 N.E.2d 1105, 1114 (Ind. Ct. App. 1989), overruled on other grounds by Smith v. State, 689 N.E.2d 1238 (Ind. 1997); Commonwealth v. Pankraz, 382 Pa. Super. 116, 125-26, 554 A.2d 974 (1989); State v. Dampier, 94 Or. App. 258, 261, 764 P .2d 979 (1988); State v. Johnson, 38 Ohio App. 3d 152, 154, 528 N.E.2d 567 (1986); Brooks v. State, 24 Md. App. 334, 342, 330 A.2d 670 (1975); Rodgers v. State, 30 Tex. Ct. App. 510, 528-29, 17 S.W. 1077 (1891).
9 No. 87929-0
N.W.2d 12, 17-18 ("A cold record invariably lacks the emotion of the occurrence
below. It is obvious that a trial of this type takes its toll on both witnesses and the
parties. Whether or not these emotions amount to circumstances that create an
unfair trial is best addressed within the discretion of the trial court.").
Second, many of these cases involved highly egregious facts. See, e.g.,
Holmes v. United States, 171 F.2d 1022, 1023 (D.C. Cir. 1949) ("The child was a
little girl of nine who had been subjected to a most terrible and horrifying
experience [being raped, beaten and disfigured, and left unconscious under some
leaves] to a degree which might well influence the balance of her life.").
Third, the courts are split on whether the prosecution must prove that the
special measure is necessary to secure the witness's testimony. A number of
courts have declined to require that the prosecution make a showing of necessity,
instead putting the onus on the defendant to prove prejudice or impropriety. See,
e.g., State v. Dickson, 337 S.W.3d 733, 743 (Mo. Ct. App. 2011) ("[T]here was
nothing to suggest that the toys were used to engender the sympathy of the jurors;
no reference to the teddy bears was made in the presence of the jury; and the
witnesses were testifying about traumatic events."); State v. Powell, 318 S.W.3d
297, 303-04 (Mo. Ct. App. 201 0) ("There is nothing to suggest that the stuffed
animals were merely an attempt to cater to the emotional sympathy of the jurors.
No reference was made to the teddy bears by any of the witnesses or counsel in
the presence of the jury."); Sperling v. State, 924 S.W.2d 722, 726 (Tex. App. 1996)
("With nothing more in the record, we cannot conclude that the teddy bear
constituted demonstrative evidence which engendered sympathy in the minds and
10 No. 87929-0
hearts of the jury, validated the child-victim's unimpeached credibility, or deprived
appellant of his constitutional right of confrontation.").
Two states explicitly require the prosecution to show that a special measure
is necessary to facilitate the witness's testimony. Delaware has adopted a
"substantial need" standard, Gomez v. State, 25 A. 3d 786, 798-99 (Del. 2011 ), and
Hawaii has adopted a similar "compelling necessity" standard. State v. Palabay, 9
Haw. App. 414, 417, 844 P.2d 1 (1992).
Finally, several states have shied away from an explicit necessity test but
nevertheless relied on a record that clearly indicated that the witness would have
difficulty testifying in the absence of the comfort item or support person. See
Hakimi, 124 Wn. App. at 21 (expert in child interviewing testified that doll could put
young girls at ease); Perovich, 632 N.W.2d at 17 (witness refused to come to the
stand when called, remaining in the back of the courtroom and crying); State v.
Cliff, 1161daho 921,923,782 P.2d 44 (Ct. App. 1989) (child had dry heaves while
testifying at preliminary hearing and had to be taken to restroom); State v. Dampier,
94 Or. App. 258, 260, 764 P.2d 979 (1988) (witness began crying on the stand and
was unable to answer questions until foster mother was permitted to enter the
stand with her); Brooks v. State, 24 Md. App. 334, 341, 330 A.2d 670 (1975)
(witness "virtually fainted after being removed from the courtroom").
In a different vulnerable-witness setting, Washington and United States
Supreme Court jurisprudence has required a showing of necessity to allow
testimony via closed-circuit television. In Maryland v. Craig, 497 U.S. 836, 840, 110
S. Ct. 3157, 111 L. Ed. 2d 666 (1990), the prosecution sought to have the
11 No. 87929-0
witness-a young girl who had been allegedly molested by the owner of her
kindergarten-examined and cross-examined in a separate room while those in the
courtroom watched on video. The Court held that in order to overcome the
defendant's confrontation clause right of "face-to-face confrontation," the trial court
must make a case-specific finding of necessity. /d. at 855-56. That is, the trial court
must hear evidence and "find that the child witness would be traumatized, not by
the courtroom generally, but by the presence of the defendant." !d. at 856. We
adopted the same rule in State v. Foster, 135 Wn.2d 441, 469, 957 P.2d 712
(1998), agreeing with the Court's reasoning in full.
Our confrontation clause analysis in Foster, 135 Wn.2d at 466-70, and our
fair-trial analysis in Finch, 137 Wn.2d 843-46, show that where special courtroom
procedures implicate constitutional rights, it is not the defendant's burden to prove
that he or she has been prejudiced, but the prosecution's burden to prove that a
special dispensation for a vulnerable witness is necessary. The present context is
no different. However, we do not require a showing of "substantial need" or
"compelling necessity" like Delaware, in Gomez, 25 A.3d at 798-99, or Hawaii, in
Palabay, 9 Haw. App. at 417. Trial courts have a unique perspective on the actual
witness that an appellate court reviewing a cold record lacks; because the trial
court is in the best position to analyze the actual necessity of a special
dispensation, we will not overrule the trial court's exercise of discretion unless the
record fails to reveal the party's reasons for needing a support animal, or if the
record indicates that the trial court failed to consider those reasons. Using this
12 No. 87929-0
standard, we now analyze whether the trial court's decision was based on
untenable grounds, or based on untenable reasons, or manifestly unreasonable.
B. Untenable grounds
A trial court's decision is based on untenable grounds "if the factual findings
are unsupported by the record." Littlefield, 133 Wn.2d at 46-47. Here, the trial
court found that Lare was a "developmentally disabled individual who has ... had
some significant emotional trauma" and that in contrast, Dye was "under no
disability whatsoever." RP (Nov. 18, 201 0) at 29. These findings are well supported
by the record. Lare's sister testified as to the nature and extent of Lare's conditions.
Lare himself testified to how the burglaries made him feel "very vulnerable and very
scared." RP (Dec. 1, 2010) at41.
The trial court also found that Ellie would be "very unobtrusive, will just
simply be next to the individual, not be lying in his lap .... " RP (Nov. 18, 201 0) at
29. Indeed, Ellie's conduct at trial supports the trial court's finding. The record does
not indicate that Ellie ever disrupted proceedings, left Lare's side, or made any
gestures toward Dye (growling, for instance) that would have made him look
dangerous or untrustworthy. Because the trial court's decision to allow Ellie to be
present was predicated on findings based in the record, the trial court did not rely
on untenable grounds.
C. Untenable reasons A trial court's decision is made for untenable reasons if "it is based on an
incorrect standard or the facts do not meet the requirements of the correct
standard." Littlefield, 133 Wn.2d at 47. Under the standard discussed above, the
13 No. 87929-0
trial court's "implicit" finding of necessity was sufficient. Dye, 170 Wn. App. at 348.
The trial court was made aware of Lare's "significant anxiety regarding his
upcoming testimony," as well as his fear of Dye. CP at 104. The trial court
expressly relied on Lare's "significant emotional trauma" and "developmental
disability," RP (Nov. 18, 201 0) at 29, when it allowed Ellie to accompany Lare on
the witness stand. The trial court clearly understood that Ellie was needed in order
to facilitate Lare's testimony, in light of his mental state. The trial court did
everything but explicitly state on the record that Lare would not testify but for Ellie's
presence, and the failure to do so does not constitute error. Our precedent does
not call for magic words, but for "'a hearing with a record evidencing the reasons
for the action taken .... "' Hartzog, 96 Wn.2d at 401 (quoting State v. Hartzog, 26
Wn. App. 576, 588-89, 615 P.2d 480 (1980) (alteration in original) (internal
quotation marks omitted)). Because the trial court held a hearing on the
permissibility of Ellie's presence, and because the record showed why Ellie's
presence was needed to facilitate Lare's testimony, the trial court did not rely on
untenable reasons.
D. Manifestly unreasonable
A manifestly unreasonable decision is one that is "outside the range of
acceptable choices, given the facts and the applicable legal standard . . . . "
Littlefield, 133 Wn.2d at 47 (citing State v. Rundquist, 79 Wn. App. 786, 793, 905
P.2d 922 (1995)). As we have noted above, the applicable legal standard gives
broad discretion to the trial court, and the trial court based its decision on Lare's
vulnerable mental state. Furthermore, there is no actual evidence on the record
14 No. 87929-0
that Ellie had the effect of distracting the jury, damaging the presumption of Dye's
innocence, or otherwise tainting the proceedings. Dye argues that Ellie
impermissibly bolstered Lare's credibility by giving Lare's testimony an "aura of
truth and sympathy," Pet'r's Suppl. Br. at 5-6; that Ellie made Lare look pitiful to the
jury and "presupposed the victimhood of the complainant," Pet. for Review at 13;
that jurors may have believed Lare's stress was because he was telling the truth;
that the trial prosecutor was Ellie's trainer and might have given Ellie conscious or
unconscious behavioral cues; and that a defendant or defense counsel might have
allergies or be uncomfortable around dogs, thereby impeding the defendant's right
of cross-examination. None of these theories has any basis in the record. For
example, far from being discouraged by Ellie's presence, Dye's counsel conducted
an extensive cross-examination of Lare and discredited him by exposing numerous
inconsistencies. See RP (Dec. 1, 2010) at 43, 61,69-70, 72, 80, 87, 101, 120, 126-
27.
It is the responsibility of a party alleging error to create a record of that error.
If Dye's counsel had seen Ellie jump on Lare, make a defensive posture toward
Dye, or engage in other prejudicial behavior, she could have noted such behavior
for the record, or even asked the court to remove Ellie from the witness stand
momentarily. Counsel did not. This court is not in a position to speculate about
what might have happened at trial.
Furthermore, whatever subconscious bias may have befallen the jury was
cured by the trial court's limiting instruction, which cautioned the jury not to "make
any assumptions or draw any conclusions based on the presence of this service
15 No. 87929-0
dog." 11 CP at 53. Juries are presumed to follow instructions absent evidence to the
contrary. State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007). No such
evidence appears on the record here. The constitutional role of the jury prevents us
from presuming-on the force of a bare allegation-that the jury "[made] a decision
based on the dog's reaction and demeanor, not the witness's .... " Br. of Amicus
Curiae Wash. Defender Ass'n & The Defender Ass'n at 14. And our own precedent
compels us to respect the trial court's decision: whether or not we might have
conducted the trial differently, we cannot say the trial court acted in a manifestly
unreasonable manner.
Ill. Conclusion
Dye has failed to establish that his fair trial rights were violated. Any
prejudice that resulted from Ellie's presence was minor and largely mitigated by the
limiting instruction that the trial court gave. In contrast, the trial court ruled that
Ellie's presence would be helpful in reducing Lare's anxiety and eliciting his
testimony, and no evidence to the contrary appears on the record. Both the general
trend of courts to allow special procedural accommodations for child witnesses and
the deference built into the abuse of discretion standard require us to respect the
trial court's decision in how to structure its own proceedings. While the possibility
11 Dye alleges that the limiting instruction was an improper judicial comment on the evidence because referring to Ellie as a "service dog" implied that Lare was disabled. He argues that Lare's perceptions and cognitive abilities were central questions of fact for the jury and that implying that Lare was disabled suggested the answers to those questions for the jury. However, the only element that Lare's disability weighed on was the vulnerable-victim aggravator sought by the State, CP at 59, and the jury did not find that Lare was a vulnerable victim. Therefore, even if the court's reference to Ellie as a "service dog" presupposed Lare's disability, there was no prejudice.
16 No. 87929-0
that a facility dog may incur undue sympathy calls for caution and a conscientious
balancing of the benefits and the prejudice involved, the trial court balanced the
competing factors appropriately. The trial court did not abuse its discretion and the
Court of Appeals is affirmed.
17 No. 87929-0
WE CONCUR.
18 State v. Dye (Timothy), No. 87929-0 Gordon McCloud, J., Concurrence
No. 87929-0
GORDON McCLOUD, J. (concurring)-Symbols matter in court. Judicial
robes symbolize formality, decorum, and dignity. Our flag in the courtroom
symbolizes the importance of American constitutional values. The witness's oath
provides a reminder of the solemn duty to testify truthfully.
Some symbols convey such a powerful message about the criminal
defendant's probable guilt that we bar their use. For example, we bar the
government from forcing the defendant to appear at a jury trial in jail garb. State v.
Finch, 137 Wn.2d 792, 844-45, 975 P.2d 967 (1999) (collecting cases). Similarly,
we generally bar the government from forcing the defendant to appear at trial in
shackles. Id.; see also, e.g., Illinois v. Allen, 397 U.S. 337, 90S. Ct. 1057, 25 L.
Ed. 2d 353 (1970). As this court recently stated regarding an electronic
presentation by a prosecutor, "prejudicial images may sway a jury in ways that
words cannot." In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 707, 286 P.3d
1 State v. Dye (Timothy), No. 87929-0 Gordon McCloud, J., Concurrence
673 (2012) (citing State v. Gregory, 158 Wn.2d 759, 866-67, 147 P.3d 1201
(2008)).
The facility dog, Ellie, was a powerful symbol in this case. Indeed, that's
why she was so important for Mr. Lare: her mere presence conveyed a deeply
reassuring, yet silent, message of comfort, security, and support. I join the
majority in concluding that the State showed the need for such a powerful symbol
to assist Mr. Lare in testifying given the particular facts of this case.
But given the undisputed power of the dog's symbolic message, I disagree
with the majority's conclusion that that is the end of the trial court's job. Instead,
to maintain the symbolism of fairness in the courtroom, additional measures must
be taken. Those measures must ensure that the jury decides the case based solely
on the facts, rather than based-even in part-on the facility dog's silent message
about Mr. Lare's status as a sympathetic and truthful victim who is worthy of
support.
The defense in this case did not suggest any additional measures, except for
what appears to be the sarcastic comment that Mr. Lare could testify with Ellie if
Mr. Dye could testify holding his baby. But the trial court should have considered
other measures to neutralize the facility dog's powerful symbolism in support of
the alleged victim. See, e.g., State v. Rodriguez, 146 Wn.2d 260, 271-72, 45 P.3d
2 State v. Dye (Timothy), No. 87929-0 Gordon McCloud, J., Concurrence
541 (2002) (listing steps that court should take before permitting an inmate
witness-for either side-to testify in shackles). 1 For example, if the State's key
witness is accompanied by a facility dog, then the defendant or the defendant's key
witness might be accompanied by a facility dog. The purpose of the second
facility dog need not be to provide symbolic support; its sole purpose could be to
symbolize a level playing field in the courtroom. Alternatively, the witness might
have been seated with the dog shielded from view before the jury entered the
courtroom. The trial court should also be open to other suggestions in the future
for neutralizing a facility dog's powerful symbolism.
The majority asserts that the court's instruction that the jury should ignore
the dog in the room sufficed to guard against any possible prejudice to Mr. Dye.
Majority at 15-16. I disagree. The majority bases this conclusion on the general
rule that jurors are presumed to follow their instructions. State v. Emery, 174
Wn.2d 741, 766, 278 P.3d 653 (2012) (citing State v. Anderson, 153 Wn. App.
417, 220 P.3d 1273 (2009)).
1 The defense's failure to request equalizing measures, despite initially objecting, seems similar to a failure to request a curative instruction despite raising an objection. The failure to request a curative instruction does not waive the claim of error, e.g., State v. Claflin, 38 Wn. App. 847, 849 n.2, 690 P.2d 1186 (1984), and the failure to request an equalizing measure should not waive the claim of error here either.
3 State v. Dye (Timothy), No. 87929-0 Gordon McCloud, J., Concurrence
That presumption, however, does not always apply. The courts recognize
the reality that jurors are likely unable to follow certain instructions, like an
instruction to ignore a codefendant's confession. Bruton v. United States, 391 U.S.
123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). In fact, this court has noted that
"[prejudicial] imagery" in particular "may be very difficult to overcome with an
instruction." Glasmann, 175 Wn.2d at 707 (citing Gregory, 158 Wn.2d at 866-67).
Thus, the presumption that jurors follow instructions is especially inapplicable
where the challenged procedure-here, the presence of the adorable dog Ellie-is
a procedure that works only because it provides such powerful symbolism.
Finally, the majority asserts that adding a claim that the challenged ruling
"violated the defendant's right to a fair trial does not change the standard of
review" and that the standard of review applicable to evidentiary errors still
applies. Majority at 6. I agree that violation of a state rule concerning the conduct
of the trial and control of the courtroom does not necessarily change the analysis
from evidentiary error to constitutional error. 2 But a constitutional issue is presented
when an error in the conduct of the trial-even one that would be subject to abuse of
2 Sawyer v. Smith, 497 U.S. 227, 239, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990); Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990) (incorrect evidentiary rulings ordinarily not a basis for constitutional claim); United States ex rel. Lee v. Flannigan, 884 F.2d 945, 953 (7th Cir. 1989) (claim based on "other crime" evidence not cognizable because error did not violate constitutional right to fundamental fairness).
4 State v. Dye (Timothy), No. 87929-0 Gordon McCloud, J., Concurrence
discretion review if analyzed solely under state court rules-also violates a
3 constitutional right. The defense raised such an issue here. E.g., Pet'r's Suppl. Br.
at 3-4 (raising fair trial right under Sixth and Fourteenth Amendments to the United
States Constitution).
Given the strength of the State's evidence in this case, however, any error
involving Ellie was certainly harmless, under any standard of review. I therefore
concur.
3 E.g., Miller v. Pate, 386 U.S. 1, 6, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967) (evidentiary error of admitting men's shorts with reddish brown stain amounted to constitutional error warranting federal habeas corpus relief because state knew at time of trial that the stain was not blood and, hence, conviction obtained by knowing use of false evidence); White v. White, 925 F.2d 287 (9th Cir. 1991) (granting habeas corpus reliefbased on petitioner's inability to confront adverse witnesses at parole revocation hearing); Rivera v. Dir., Dep't ofCorr., 915 F.2d 280, 281-83 (7th Cir. 1990) (granting habeas corpus relief because trial court improperly used hearsay rule to exclude codefendant's confession exculpating petitioner); Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir. 1987) (admission or exclusion of evidence may violate constitution if the evidence is a "crucial, critical, or highly significant factor in the context of the entire trial" (citing Mullen v. Blackburn, 808 F.2d 1143, 1143-46 (5th Cir. 1987))); Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983) (where the violation of state's evidentiary rule has resulted in denial of fundamental fairness, habeas corpus relief will be granted); Dickson v. Wainwright, 683 F.2d 348, 350 (11th Cir. 1982) (fundamentally unfair state evidentiary rulings are basis for habeas relief). Cf Estelle v. McGuire, 502 U.S. 62, 70, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (leaving open question of whether violation of state evidentiary rule can amount to due process clause error).
5 State v. Dye (Timothy), No. 87929-0 Gordon McCloud, J., Concurrence