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National Crime Victim Law Institute

State v. Dye, — P.3d —, No. 87929-0, 2013 WL 5406430 (Wash. Sept. 26, 2013) (en banc).

October 02, 2013

Defendant was convicted of residential burglary after a jury trial, in which the jury declined to find that the victim—an individual with developmental delays—was a vulnerable victim.  The victim was accompanied by a facility dog during the defense interview, and the victim requested the assistance of the facility dog during his trial testimony.  The state moved to allow this accompaniment, basing its argument on the victim’s fear of defendant and anxiety about testifying, as well as on his developmental disability.  Defendant objected.  The trial court permitted the facility dog to assist the victim during his testimony and, at the end of the trial, instructed the jury not to “make any assumptions or draw any conclusions based on the presence of this service dog.”  The court of appeals affirmed the conviction, holding that the presence of the facility dog did not compromise defendant’s right of cross examination, that the prosecutor did not provide the victim with a gift by permitting the assistance of the facility dog, that the trial court properly balanced the needs of the victim against the possibility of prejudice, and that no prejudice resulted from the victim’s accompaniment by the facility dog.  Defendant appealed, and the state supreme court held that the burden is on the prosecution “to prove that special dispensation” for a witness is necessary, but clarified that it does not require a showing of “substantial need” or “compelling necessity.”  Rather, because trial courts “have a unique perspective on the actual witness” and are “in the best position” to analyze the need for a “special dispensation,” the trial court’s exercise of discretion will not be overruled “unless the record fails to reveal the party’s reasons for needing a support animal, or if the record indicates that the trial court failed to consider those reasons.”  Because the trial court in this case did not base its decision on untenable grounds or reasons and was not manifestly unreasonable, and because the record does not support a finding of prejudice resulting from the assistance of the facility dog, the court affirmed defendant’s conviction.