State v. Lord

• Citation: 161 Wn.2d 276,165 P.3d 1251
• Decision Date: 30 August 2007
• Docket Number: No. 77472-2.,77472-2.
• Parties: STATE of Washington, Petitioner, v. Brian Keith LORD, Respondent.
• Court: United States State Supreme Court of Washington

165 P.3d 1251

161 Wn.2d 276

STATE of Washington, Petitioner, v. Brian Keith LORD, Respondent.

No. 77472-2.

Supreme Court of Washington, En Banc.

Argued October 26, 2006.

Decided August 30, 2007.

Catherine E. Glinski, Attorney at Law, Manchester, WA, for Petitioner.

Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 The right to a fair trial by an impartial jury is a foundation of our criminal justice system. Today we must decide whether the courtroom presence of lapel buttons, showing a picture of the victim, deprived the defendant of this fundamental right. We conclude, as did the courts below, there was no inherent prejudice and affirm the conviction.

¶ 2 Our constitution also guarantees that a trial will be public, allowing the attendance of spectators who have an interest in the trial. Courts must presume that the jurors we entrust with determining guilt both understand, and have the fortitude to withstand, the potential influence from spectators who show sympathy or affiliation. An underlying presumption is that jurors are intelligent and responsible individuals. A similar assumption about voters,¹ from which jurors are chosen, underlies our democracy. As further protection, jury panels are instructed and solemnly charged by the court with the duty to avoid bias or prejudice.² A simple picture button, a sign of support or sympathy that does not expressly advocate guilt or innocence, does not alone impermissibly bias a jury.

¶ 3 In determining whether a jury has been unduly influenced, there is an important distinction between the potential impact of a "state-sponsored" message and a message from private citizens.³ The special influence of the imprimatur of the State is often troubling, while private acts are more likely understood as private expressions.

¶ 4 We hold that spectator signs of affiliation — here through buttons showing a victim's picture — do not automatically present "`an unacceptable risk . . . of impermissible factors coming into play.'" Holbrook v. Flynn, 475 U.S. 560, 570, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (inherent prejudice requires an unacceptable risk of impermissible factors)). Here, Lord was not denied a fair trial or the constitutionally guaranteed presumption of innocence. We also hold dog handler evidence was not impermissibly denied in the trial and uphold Lord's conviction.⁴

FACTS AND PROCEDURAL HISTORY⁵

¶ 5 Brian Keith Lord seeks review of the Court of Appeals decision affirming an aggravated first degree murder conviction. Lord asserts his right to a fair trial was violated because several trial spectators were allowed to wear buttons depicting a picture of the victim for three days of his month long trial. Lord also contends that the trial court erred by excluding potentially exculpatory dog handler evidence that might indicate the victim was abducted from a nearby road rather than the crime scene.⁶ A closely related contention is that the State should have further investigated this handler (who had searched for the victim when she first disappeared).

¶ 6 Lord was convicted for the first degree murder of Tracy Parker and sentenced to death on August 18, 1987. On appeal, this court affirmed the conviction and sentence. State v. Lord, 117 Wash.2d 829, 822 P.2d 177 (1991). On habeas review, the Ninth Circuit Court of Appeals reversed Lord's conviction on the grounds his trial counsel failed to present three witnesses who would have testified they thought they saw the victim alive after Lord was supposed to have killed her. Lord v. Wood, 184 F.3d 1083 (9th Cir.1999).

¶ 17 The case was remanded to the Kitsap County Superior Court, and this second trial included the testimony from the disputed three witnesses, as well as some additional deoxyribonucleic acid (DNA) analysis of blood and other evidence. The jury found Lord guilty, and the court sentenced Lord to life imprisonment without the possibility of parole. The Washington Court of Appeals affirmed. State v. Lord, 128 Wash.App. 216, 114 P.3d 1241 (2005). Lord then appealed to this court.

¶ 8 The State's basic theory of the crime remained the same. On September 16, 1986 Ms. Parker went to the residence of Wayne and Sharon Frye for her usual horse ride. Lord abducted Ms. Parker and took her to his brother's nearby residence where Lord had a workshop. He raped and killed Ms. Parker in the workshop and then drove to Clear Creek Road to deposit the body. He then returned to his brother's home.

¶ 9 In addition to evidence from the first trial, the State introduced newly available DNA analysis at the second trial. Since the initial investigation in 1986, forensic technology had progressed significantly and several different laboratories were able to test the blood and hair samples from the crime.⁷

¶ 10 In the new trial, the State experts applied more advanced DNA technology to the original evidence further implicating Lord. Mitotyping Technologies tested a hair from the bath towel found at Island Lake for mitochondrial DNA. The results matched Lord, excluding 99.94 percent of the population. LabCorp also tested a hair from the orange U-Haul blanket found near Ms. Parker's clothes, and the DNA matched Lord, excluding 99.94 percent of the population. Finally, LabCorp tested a blood splatter found in Lord's workshop where the victim was allegedly killed. The test produced a complete DNA genetic profile consistent with Ms. Parker's blood and excluded Lord as the source.

¶ 11 During the first three days of the trial, many of the spectators wore buttons with a picture of the victim. The effect on the jury of these buttons is central to our first issue today. The buttons were approximately two and one-half inches in diameter and bore an in-life photograph of victim Tracy Parker. They were picture buttons only and had no message or writing of any kind. Defense counsel objected and moved the judge to remove the buttons from the courtroom. The trial court denied the motion, allowing the buttons to remain for the first three days of trial. Lord did not move for mistrial nor later request a curative jury instruction.

¶ 12 On the third day, the trial court noted on the record that the jury could see the buttons worn by spectators in the courtroom and expressed concern that the buttons might invoke undue sympathy from the jury. On the morning of the fourth day, the court excluded the buttons from the courtroom for the remainder of the 31 day trial.

¶ 13 As a separate issue, Lord argued that the State failed to disclose police notes of a call from a dog handler who had attempted to locate the victim shortly after her disappearance. Before Lord's first trial, the State did disclose to the defense a police report indicating that the victim's family had engaged a handler and bloodhounds to search for Ms. Parker. While preparing for the second trial, defense investigators inquired and were told by the dog handler, Mr. Anderson, that his dog had tracked Tracy Parker's scent from the Frye barn through the woods and out to the road. Anderson also said a woman in a motor home had told him that she saw someone who looked like Ms. Parker get into a black car. The handler had called a detective at the Kitsap County Sheriff's department to report his dog track efforts.⁸

¶ 14 Both the trial and appellate courts ruled that the State's disclosure of the handler's existence was sufficient, holding that the State divulged all of the information it possessed and did not suppress any material evidence. Lord argued that the dog handler's testimony would rebut the State's theory that Lord abducted Ms. Parker from the stable. Although Ms. Parker had used the pathways near the stable many times before her death, the handler later told defense investigators his dog followed the freshest scent. However, the handler also stated that his dogs had the ability to follow a scent up to two weeks old. The trial court held that this evidence was not relevant because it did not alter the State's theory of the crime.

¶ 15 We granted review on both the picture button and dog track issues.

STANDARD OF REVIEW

¶ 16 We review each issue separately. First, whether the trial court erred when it allowed spectators to wear picture buttons for three days of the trial. Second, whether the trial court erroneously excluded testimony of the private dog handler. The standard for both determinations is whether the court abused its discretion. A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Mayer v. Sto Indus., Inc., 156 Wash.2d 677, 684, 132 P.3d 115 (2006). An abuse of discretion is found if the trial court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law. Id. The underlying questions of law we review de novo. Id.

ANALYSIS

¶ 17 The first issue is whether Lord received a constitutionally fair trial where several spectators wore button pictures of the victim during the first three days of a 31 day trial. The second question is whether the trial court abused its discretion when it excluded the dog track evidence. We affirm the trial and appellate court decisions on both issues, holding the trial court did not abuse its discretion, and Lord received a constitutionally fair trial.

A. Buttons Worn by Trial Spectators

¶ 18 It is beyond dispute that "[t]he constitutional safeguards relating to the integrity of the criminal process . . . embrace the fundamental conception of a fair trial, and . . . exclude influence or domination by either a hostile or friendly mob." Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (citation omitted). However, a silent showing of sympathy or affiliation in a...