State v. Dye
State v. Dye
Opinion of the Court
¶1 Timothy Dye’s right to a fair trial was not violated when the court allowed Ellie, the King County Prosecutor’s Office “facility dog,” to sit next to the developmentally disabled adult victim as he testified. Nor did the court improperly seat an alternate juror without first verifying the alternate’s impartiality. We find no error and affirm Dye’s conviction for residential burglary.
BACKGROUND
¶2 Douglas Lare is an adult man with significant developmental disabilities.
¶3 In 2006 or 2007, Lare met Alesha Lair, who eventually became his “girlfriend.”
¶4 Unbeknownst to Lare, Alesha had another boyfriend named Timothy Dye. After she moved out, Alesha rented an apartment for Dye and herself, which she furnished with Lare’s money.
¶5 Lare discovered that a portable DVD (digital video disk) player and a DVD were missing from his bedroom. Several days later, on January 24, 2008, Lare awoke to find Dye in his home, rummaging through his belongings. Dye asked if he could take Lare’s DVD player and VCR (videocassette recorder). Lare said no. Dye nonetheless took DVDs and a shelving unit. Lare reported both incidents to the police.
¶6 The next day, Lare returned from work to find his front door propped open. Several items had been stolen from his apartment, including a large television, a VCR, a DVD player, a microwave, and a collectible “bulldog” knife. He reported this to the police as well. Lare became very fearful. He testified he now has three locks on his front door and sleeps with mace, a frying pan, and two knives.
¶7 The State charged Dye with residential burglary and alleged that Lare was a particularly vulnerable victim. Alesha pleaded guilty to theft in the first degree with a vulnerable victim aggravator.
¶8 Before Dye’s trial, the State sought permission for a dog named Ellie to sit with Lare during his testimony. Ellie is the King County Prosecutor’s Office facility dog.
¶9 Shortly after the jury began its deliberations, defense counsel notified the court that Dye had had inadvertent
¶10 The jury found Dye guilty of residential burglary, but answered “no” on the special verdict for the vulnerable victim aggravator.
DISCUSSION
Presence of Facility Dog During Testimony
¶11 In a pretrial motion, the State represented that Lare “is experiencing significant anxiety regarding his upcoming testimony,” which diminished when Lare was with Ellie, and therefore “requested that Ellie be with him during his testimony.”
¶12 The defense objected, contending the dog would distract the jury, aggravate Dye’s allergies, and cause extreme prejudice. The court offered to make any appropriate accommodations for the allergies but granted the State’s motion.
¶13 Dye contends that Elbe’s presence deprived him of a fair trial by interfering with his right to confront Lare, by improperly inciting the jury’s sympathy and encouraging the jury to infer Lare’s victimhood, and by giving Lare an
¶14 We address the last arguments first. GR 33 and the antidiscrimination statutes to which Dye refers have no application here. GR 33 establishes a procedure by which persons with disabilities may request accommodation as mandated by the statutes. No request was made under GR 33, Dye’s objection was not made on that basis, and the rule does not establish an exclusive, mandatory procedure. Further, GR 33 requires findings only when a requested accommodation is denied.
¶15 For his argument that Elbe’s presence interfered with his right to cross-examine Lare, Dye relies on Coy v. Iowa, in which the United States Supreme Court held that a screen placed between the defendant and the complaining witnesses interfered with the defendant’s Sixth Amendment right to “face-to-face confrontation.”
¶16 We disagree. Dye’s argument depends on the notion that Ellie effectively screened Lare from Dye. But Dye does not allege the dog’s presence prevented him from face-to-face confrontation with Lare. Coy is inapposite.
¶17 Dye also suggests Elbe’s presence “foiled” the “mission” of cross-examination, invaded the jury’s province, and undermined the presumption of innocence.
¶18 Again, we disagree. The confrontation clause is normally satisfied “if defense counsel receives wide latitude at trial to question witnesses.”
¶19 Dye also contends that Lare may have been biased or more suggestible because Ellie belonged to the prosecutor’s office. He argues this created “the sense that the State
¶20 Dye relies on State v. Aponte
¶21 In this case, the prosecutor did not give Lare a gift and there is no allegation of misconduct. Further, even if Elbe’s temporary companionship were sufficient to create bias or suggestibility, Dye does not allege any restriction on his ability to expose the same during cross-examination. Aponte is inapposite.
¶22 Finally, Dye argues that by failing to make specific findings weighing Lare’s need for emotional support against the possibility of prejudice, the court violated his right to due process. Because of Lare’s developmental disabilities, both parties analogize to cases involving child witnesses. These cases provide abundant authority that a court may allow a child witness to hold a comfort item during testimony where the witness’s need for emotional support outweighs the possibility of prejudice.
¶24 In any event, there was no prejudice. The court instructed the jury not to “make any assumptions or draw any conclusions based on the presence of this service dog.”
¶25 After closing arguments, the court excused the alternate juror, juror 6. The court admonished juror 6 to abide by the instructions not to discuss the case with anyone and warned him that he might be recalled if any of the jurors could not continue. A few minutes after the jury began to deliberate, the court learned that Dye had had inadvertent contact with a juror during the trial. The juror was immediately excused, and the alternate juror was recalled for the following day. The court instructed the jury to begin deliberations anew.
¶26 Dye contends the trial court violated his right to an impartial jury by seating an alternate juror without first verifying on the record that he remained impartial. We addressed an identical argument in State v. Chirinos
Vulnerable Victim Allegation
¶27 Dye next contends the court commented on the evidence when it gave pattern instructions on the “vulner
¶28 Simply put, Dye cannot show that the instructions constituted a manifest constitutional error because the jury rejected the vulnerable victim aggravating factor. Therefore, we decline to reach the issue.
¶29 Affirmed.
Review granted at 176 Wn.2d 1011 (2013).
Lare has an intelligence quotient of approximately 65, cerebral palsy, and a degenerative joint condition. He is unable to manage his finances and requires a payee service to pay his bills.
Report of Proceedings (RP) (Dec. 1, 2010) at 14.
Lare testified the only thing he bought for himself during this time was a coat “when I was cold.” Id. at 27.
They moved after Alesha’s mother’s boyfriend assaulted Lare and broke his glasses during an argument about the use of the car.
In their briefing, the parties variously refer to Ellie as a “service dog” or a “comfort dog.” At argument before this court, the prosecutor clarified that Ellie is the office “facility dog.” We adopt that term.
Clerk’s Papers at 104.
124 Wn. App. 15, 98 P.3d 809 (2004).
Clerk’s Papers at 104.
GE 33(e).
487 U.S. 1012, 1021-22, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1998). The court specifically declined to address Coy’s due process claim. Id. at 1022.
Id. at 1015-20.
Id. at 1020-21.
Appellant’s Br. at 11.
Id
See, e.g., William Glaberson, By Helping a Girl Testify at a Rape Trial, a Dog Ignites a Legal Debate, N.Y. Times, Aug. 9, 2011, at A15.
Appellant’s Br. at 10.
Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).
See RP (Dec. 1, 2010) at 42-120.
See, e.g., RP (Dec. 6,2010) at 103-04 (‘What evidence do we have? We have Mr. Lare, whose memory is, as counsel conceded, which is pretty obvious!,] far from perfect.”); RP (Dec. 6, 2010) at 109-11; 114-15 (“Mr. Lare’s story had changed a lot.”).
Appellant’s Br. at 12.
249 Conn. 735, 738 A.2d 117 (1999).
Id. at 745.
Id. at 748.
See, e.g., Hakimi, 124 Wn. App. at 21 (court did not err by allowing nine-year-old victims to hold dolls during testimony in sexual abuse trial when the judge “weighed the interests of Hakimi’s two victims [against] any potential
RP (Nov. 18, 2010) at 29.
Clerk’s Papers at 53.
State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007).
161 Wn. App. 844,255 P.3d 809, review denied, 172 Wn.2d 1021,268 P.3d 224 (2011).
Id. at 848-49.
Id. at 850.
The court instructed the jury as follows: “If you find the defendant guilty of residential burglary as charged, then you must determine if the following aggravating circumstance exists: Whether the defendant knew or should have known that the victim was more vulnerable to the commission of the crime than the typical victim of residential burglary and that the victim’s vulnerability was a substantial factor in the commission of the crime.” Clerk’s Papers at 59. The court further instructed, “A victim is ‘particularly vulnerable’ if he or she is more vulnerable to the commission of the crime than the typical victim of residential burglary. The victim’s vulnerability must also be a substantial factor in the commission of the crime.” Clerk’s Papers at 60.
RAP 2.5(a); State v. Ballew, 167 Wn. App. 359, 365, 272 P.3d 925 (2012).
Ballew, 167 Wn. App. at 365.
Reference
- Full Case Name
- The State of Washington v. Timothy Lee Dye
- Cited By
- 14 cases
- Status
- Published