State v. Lord

¶61 (dissenting) — The majority holds a trial judge properly excluded defense evidence that directly contradicts the State’s theory of the crime but continues that even if such was error, the error was harmless. I disagree. Brian Lord was convicted of murdering Tracy Parker. The State’s theory is Parker asked Lord for a ride home from a stable before Lord killed her. But the trial judge excluded testimony from a dog handler that the handler’s bloodhound traced Parker’s freshest scent-track from the stable, through the woods, and to a road. A judge has no discretion to exclude evidence clearly relevant to a *301 defense, and because the dog handler’s testimony would have directly contradicted the State’s theory, this error cannot be harmless.

Sanders, J.

*301 ¶62 A criminal defendant has a constitutional right to present a defense consisting of relevant, admissible evidence. Taylor v. Illinois, 484 U.S. 400, 408 , 108 S. Ct. 646 , 98 L. Ed. 2d 798 (1988) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense .... [T]his right is an essential attribute of the adversary system itself.”). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401. “The threshold to admit relevant evidence is very low. Even minimally relevant evidence is admissible.” State v. Darden, 145 Wn.2d 612, 621 , 41 P.3d 1189 (2002). And relevant evidence need provide only “a piece of the puzzle.” Bell v. State, 147 Wn.2d 166, 182 , 52 P.3d 503 (2002).

¶63 The trial court erred when it excluded the dog handler’s testimony. The dog handler testified that his dog had tracked Parker from the stable, through the woods, and to a road, and a witness whose motor home was parked on the roadside told the handler that she thought she had seen Parker get into a vehicle stopped along the road. The dog handler testified there was no question that his bloodhound had picked up the “freshest scent available.” 5 Verbatim Report of Proceedings (Feb. 25, 2003) at 608-09. But the trial court refused to admit the handler’s testimony, claiming it was irrelevant.

¶64 Notwithstanding, this testimony was highly relevant because it weakened the State’s theory that Lord picked up Parker at the stable. Relevant evidence must be admitted unless it is precluded “by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of *302 this state.” ER 402. 22 There is no suggestion any such exception applies here. 23

¶65 The majority claims even if the dog handler’s testimony was improperly excluded, the error was harmless. But “[t]he right to a fair trial is a fundamental liberty,” Estelle v. Williams, 425 U.S. 501, 503 , 96 S. Ct. 1691 , 48 L. Ed. 2d 126 (1976), and “courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” Id; see also Taylor, 484 U.S. at 408 . An error is not harmless unless it is an “error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.” State v. Britton, 27 Wn.2d 336, 341 , 178 P.2d 341 (1947). Therefore, an error is harmless if it does not affect the evidence properly before the jury.

¶66 We cannot excuse an error resulting in the exclusion of relevant evidence. “[I]t is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors.” State v. Robinson, 24 Wn.2d 909, 917 , 167 P.2d 986 (1946). The assumption that a court “can determine what evidence or instruction influenced the jury’s decision” is “a tacit admission that an appellate court is necessarily engaging in fact-finding.” Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277 , 279 (1995-96). And we “have no right to trench upon the province of the jury upon questions of fact.” Jensen v. Shaw Show Case Co., 76 Wash. 419, 421 , 136 P. 698 (1913).

*303 ¶67 As the Ninth Circuit Court of Appeals observed, the State’s circumstantial case against Lord was not "ironclad.” Lord v. Wood, 184 F.3d 1083, 1088 (9th Cir. 1999). No witness had seen Parker together with Lord on the day of the murder, and the State could not pinpoint the exact time of death. Id. If a case is largely based on circumstantial evidence, then error is less likely to be harmless. See, e.g., State v. Coles, 28 Wn. App. 563 , 625 P.2d 713 (1981) (admission of evidence of inculpatory statements made after Miranda warnings 24 not harmless because the State’s case consisted solely of circumstantial evidence). Under harmless error analysis, we presume an error is prejudicial. Nothing here overcomes that presumption. See State v. DeRyke, 149 Wn.2d 906, 912-13 , 73 P.3d 1000 (2003). The dog handler’s testimony was relevant and should have been admitted. And because the trial court’s improper ruling affected the evidence presented to the jury, the error cannot be harmless.

Chambers, J., concurs with Sanders, J.

An oft-cited rule to exclude relevant evidence is ER 403, which provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

The trial court claimed the testimony was irrelevant because the dog handler could not pinpoint the exact date of the scent. But the handler would have testified to the jury that his bloodhound was trained to follow the freshest possible scent. Whether the dog handler’s testimony was persuasive is a matter for the jury. Clearly though, it is relevant.

Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966).