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State v. Dye

Supreme Court of Washington, En Banc

September 26, 2013

The State of Washington, Respondent,
v.
Timothy Dye, Petitioner

Argued May 16, 2013.

Page 1193

Appeal from King County Superior Court, No. 10-1-03356-1, Honorable Joan E DuBuque.

Jan Trasen and Nancy P. Collins (of Washington Appellate Project ), for petitioner.

Daniel T. Satterberg, Prosecuting Attorney, and Andrea R. Vitalich, Deputy, for respondent.

Victoria J. Lyons and Travis Stearns on behalf of Washington Defender Association, amicus curiae.

Suzanne L. Elliott on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.

Margaret Garvin, Rebecca Khalil, and Seth A. Fine on behalf of National Crime Victim Law Institute and Courthouse Dogs Foundation, amici curiae.

AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Johnson, Justice Debra L. Stephens, Justice Steven C. Gonzá lez. AUTHOR: Justice Sheryl Gordon McCloud.

OPINION

Page 1194

[178 Wn.2d 543] Wiggins, J. --

¶ 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 perceptions [178 Wn.2d 544] 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.

FACTS

I. Background

¶ 2 Douglas Lare suffers from significant developmental disabilities, including cerebral palsy, Kallman Syndrome, and mild mental retardation. He has an IQ (intelligence quotient) 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 [178 Wn.2d 545] key to Lare's apartment with her. In total, Alesha borrowed approximately $ 42,000 against the credit cards in Lare's name and

Page 1195

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 [178 Wn.2d 546] 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 ...

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