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National Crime Victim Law Institute

State v. Dye, — P.3d —, No. 66549-9-I, 2012 WL 3641607 (Wash. Ct. App. Aug. 27, 2012).

August 29, 2012

Defendant was convicted of residential burglary and appealed, arguing, inter alia, that his right to a fair trial was violated when the court allowed Ellie, the prosecutor’s office’s facility dog, to sit next to the developmentally disabled adult victim during the victim’s testimony.  Before trial, the state sought permission from the trial court for Ellie to accompany the victim during his testimony, as the victim was “experiencing significant anxiety regarding his upcoming testimony.”  Defendant objected, arguing that the dog would “distract the jury, aggravate [defendant’s] allergies, and cause extreme prejudice.”  The court granted the motion over defendant’s objection, offering to make appropriate accommodations for defendant’s allergies.  At trial, the court instructed the jury not to “make any assumptions or draw any conclusions based on the presence of this [facility] dog.”  On appeal, defendant argued that the presence of the facility dog during the victim’s testimony violated his right to a fair trial, that there was no proper foundation for the request, and that the court inappropriately failed to make the necessary findings for a disability-related accommodation.  The court of appeals rejected defendant’s arguments, noting first that the antidiscrimination and disability-related provisions “have no application here.”  The court of appeals also rejected the argument that Ellie’s presence interfered with defendant’s ability to cross-examine the victim, as defendant was able to conduct a full cross-examination of the victim, including the opportunity to question the victim about any possible bias or suggestibility relating to the use of the facility dog.  Because the court weighed the need for the facility dog to support the victim against the possibility of prejudice, the court of appeals concluded that the trial court did not err in granting the state’s motion.  Defendant’s conviction was affirmed.