State v. Dye

Decision Date26 September 2013
Docket NumberNo. 87929–0.,87929–0.
Citation178 Wash.2d 541,309 P.3d 1192
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Timothy DYE, Petitioner.


Jan Trasen, Attorney at Law, Nancy P. Collins Washington Appellate Project, Seattle, WA, for Petitioner.

Andrea Ruth Vitalich, King County Prosecutor's Office, Prosecuting Atty King County, King Co Pros/App Unit Supervisor Seattle, WA, for Respondent.

Victoria Jane Lyons, Travis Stearns, Washington Appellate Project, Seattle, WA, for Amicus Curiae on behalf of Washington Defender Association.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

Margaret Garvin, Rebecca S.t. Khalil National Crime Victim Law Institute, Portland, OR, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, Everett, WA, for Amicus Curiae on behalf of National Crime Victim Law Institute.

Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, Everett, WA, Margaret Garvin, Rebecca S.t. Khalil National Crime Victim Law Institute, Portland, OR, for Amicus Curiae on behalf of Courthouse Dogs Foundation.

En Banc.


[178 Wash.2d 543]¶ 1 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 perceptionsof 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.

I. Background

¶ 2 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 years old.1 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.

¶ 3 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.

¶ 4 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 $42,000 against the credit cards in Lare's name and withdrew $59,000 from Lare's retirement account.3

¶ 5 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, 2010) at 6.

¶ 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

¶ 7 The State charged Dye with residential burglary in connection with the January 24 incident, alleging as an aggravator that Lare was a vulnerable victim.

¶ 8 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.

¶ 9 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, 2010) at 28.

¶ 10 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.” Id. The trial court disagreed, noting that Lare was a “developmentally disabled individual who has ... significant emotional trauma.” Id. 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.

Id. 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.

¶ 11 Dye's counsel also argued that Elite'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.

¶ 12 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. Elite'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, 2010) 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.

¶ 13 The jury convicted Dye of residential burglary but did not find that Lare was a vulnerable victim. State v. Dye, 170 Wash.App. 340, 344, 283 P.3d 1130 (2012). Dye appealed his conviction and the Court of Appeals affirmed the trial court, holding that Elite'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 Lare's special needs against the possibility of prejudice, and that there was no prejudice in the first instance. Id. at 346–48, 283 P.3d 1130. Dye appealed on the ground that Ellie's presence violated his right to due process and a fair trial.

I. Standard of Review

¶ 14 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 re Marriage of Littlefield, 133 Wash.2d 39, 46–47, 940 P.2d 1362 (1997).

¶ 15 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 Wash.2d 792, 852, 975 P.2d 967 (1999); State v. Hartzog, 96 Wash.2d 383, 401, 635 P.2d 694 (1981). We have consistently reviewed courtroom 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

¶ 16 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 Wash.2d at 47, 940 P.2d 1362. As a preliminary matter, the “manifestly unreasonable” and “untenable reasons” tests require us to determine a legal standard to use.

A. Applicable legal standard

¶ 17 No controlling authority in Washington decides whether...

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