Lead Opinion
¶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 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 Elbe, 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.
¶3 In 2005, Lare became romantically involved with his neighbor Alesha Lair.
¶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
¶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,
¶9 Lare then requested Elbe’s presence during his testimony at trial. The State moved to allow Ellie to accompany Lare during his testimony, arguing that Lare needed Elbe’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 Elbe 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 Elbe’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 Elbe 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 Elbe’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 Elbe treats and used Ellie as a table while reading an exhibit. Elbe’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,
ANALYSIS
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,”
¶15 Allegations 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,
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,
A. Applicable legal standard
¶17 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,
¶18 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,
“the doll will not be the subject of any questioning .... [CJhildren 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.”
Id. 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
¶19 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,
¶20 Second, many of these cases involved highly egregious facts. See, e.g., Holmes v. United States,
¶21 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,
¶22 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,
¶23 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,
¶24 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,
¶25 Our confrontation clause analysis in Foster,
B. Untenable grounds
¶26 A trial court’s decision is based on untenable grounds “if the factual findings are unsupported by the record ” Littlefield,
¶27 The trial court also found that Elbe would be “very unobtrusive, will just simply be next to the individual, not be lying in his lap. . . .” RP (Nov. 18, 2010) at 29. Indeed, Elbe’s conduct at trial supports the trial court’s finding. The record does not indicate that Elbe 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 Elbe to be present was predicated on findings based in the record, the trial court did not rely on untenable grounds.
C. Untenable reasons
¶28 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,
¶29 A manifestly unreasonable decision is one that is “outside the range of acceptable choices, given the facts and the applicable legal standard____” Littlefield,
¶30 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.
¶31 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 dog.”
III. Conclusion
¶32 Dye has failed to establish that his fair trial rights were violated. Any prejudice that resulted from Elbe’s presence was minor and largely mitigated by the limiting instruction that the trial court gave. In contrast, the trial court ruled that Elbe’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 that a facility dog may incur undue sympathy cabs for caution and a conscientious
Notes
The defense characterizes Lare’s mental age as between two and a half years and eight and a half years.
Because of the similarity of Lair and Lare’s names, Alesha Lair is hereinafter referred to by her first name. No disrespect is intended.
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.
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,
ER 611(a).
State v. Stenson,
State v. Jaime,
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,
See Smith v. State,
See Holmes v. United States,
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.
Concurrence Opinion
¶33 (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.
¶34 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,
¶35 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.
¶36 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.
¶37 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,
¶38 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 556. I disagree. The majority bases this conclusion on the general rule that jurors are presumed to follow their instructions. State v. Emery,
¶40 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 548.1 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.
¶45 Given the strength of the State’s evidence in this case, however, any error involving Elbe was certainly harmless, under any standard of review. I therefore concur.
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,
Sawyer v. Smith,
E.g., Miller v. Pate,