[No. 66549-9-I. Division One. August 27, 2012.]
May 24, 2012, Oral Argument Affirmed.
Lila J. Silverstein and Jan Trasen (of Washington Appellate Project), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Andrea R. Vitalich, Deputy, for respondent.
Author: Anne Ellington, J.
We concur: Ann Schindler, J, Mary Kay Becker, J. ¶1 ELLINGTON, J. -- 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 collectable "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 contact with one of the jurors during trial. The court replaced the juror with the alternate, who had been instructed not to discuss the case before being briefly excused, and instructed the jury to begin deliberations anew. ¶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 Ellie'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 incentive to testify in the prosecution's favor. Additionally, Dye contends there was no proper foundation for the request and that the court violated GR 33 by allowing Lare to sit with a facility dog without making necessary findings for accommodation under GR 33; the Americans with Disabilities Act, 42 U.S.C. chapter 126; or the Washington Law Against Discrimination, chapter 49.60 RCW. [1, 2] ¶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 Ellie'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." [3, 4] ¶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 Ellie'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 had orchestrated the appearance of Ellie . . . in order to engender sympathy for the complainant." ¶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 Ellie'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. ¶23 Here, the necessary balancing is implicit in the court's ruling. The court did not think Ellie would distract the jury, and observed that the dog was "very unobtrusive [and] will just simply be next to the individual, not be laying in his lap." ¶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." Alternate Juror ¶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. [5] ¶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 [6, 7] ¶27 Dye next contends the court commented on the evidence when it gave pattern instructions on the "vulnerable victim" aggravating circumstance. ¶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. BECKER and SCHINDLER, JJ., concur.