State v. Dye

Gordon McCloud, J.

¶33 (concurring) — Symbols matter in court. Judicial robes symbolize formality, decorum, and dignity. Our flag in the courtroom symbolizes the importance of American constitutional values. The witness’s oath provides a reminder of the solemn duty to testify truthfully.

¶34 Some symbols convey such a powerful message about the criminal defendant’s probable guilt that we bar their use. For example, we bar the government from forcing the defendant to appear at a jury trial in jail garb. State v. Finch, 137 Wn.2d 792, 844-45 , 975 P.2d 967 (1999) (collecting cases). Similarly, we generally bar the government from forcing the defendant to appear at trial in shackles. Id.; see also, e.g., Illinois v. Allen, 397 U.S. 337 , 90 S. Ct. 1057 , 25 L. Ed. 2d 353 (1970). As this court recently stated regarding an electronic presentation by a prosecutor, “prejudicial images may sway a jury in ways that words cannot.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 707 , 286 P.3d 673 *558 (2012) (citing State v. Gregory, 158 Wn.2d 759, 866-67 , 147 P.3d 1201 (2008)).

¶35 The facility dog, Ellie, was a powerful symbol in this case. Indeed, that’s why she was so important for Mr. Lare: her mere presence conveyed a deeply reassuring, yet silent, message of comfort, security, and support. I join the majority in concluding that the State showed the need for such a powerful symbol to assist Mr. Lare in testifying given the particular facts of this case.

¶36 But given the undisputed power of the dog’s symbolic message, I disagree with the majority’s conclusion that that is the end of the trial court’s job. Instead, to maintain the symbolism of fairness in the courtroom, additional measures must be taken. Those measures must ensure that the jury decides the case based solely on the facts, rather than based — even in part — on the facility dog’s silent message about Mr. Lare’s status as a sympathetic and truthful victim who is worthy of support.

¶37 The defense in this case did not suggest any additional measures, except for what appears to be the sarcastic comment that Mr. Lare could testify with Ellie if Mr. Dye could testify holding his baby. But the trial court should have considered other measures to neutralize the facility dog’s powerful symbolism in support of the alleged victim. See, e.g., State v. Rodriguez, 146 Wn.2d 260, 271-72 , 45 P.3d 541 (2002) (listing steps that court should take before permitting an inmate witness — for either side — to testify in shackles). 12 For example, if the State’s key witness is accompanied by a facility dog, then the defendant or the defendant’s key witness might be accompanied by a facility dog. The purpose of the second facility dog need not be to provide symbolic support; its sole purpose could be to *559 symbolize a level playing field in the courtroom. Alternatively, the witness might have been seated with the dog shielded from view before the jury entered the courtroom. The trial court should also be open to other suggestions in the future for neutralizing a facility dog’s powerful symbolism.

¶38 The majority asserts that the court’s instruction that the jury should ignore the dog in the room sufficed to guard against any possible prejudice to Mr. Dye. Majority at 556. I disagree. The majority bases this conclusion on the general rule that jurors are presumed to follow their instructions. State v. Emery, 174 Wn.2d 741, 766 , 278 P.3d 653 (2012) (citing State v. Anderson, 153 Wn. App. 417 , 220 P.3d 1273 (2009)).

¶39 That presumption, however, does not always apply. The courts recognize the reality that jurors are likely unable to follow certain instructions, like an instruction to ignore a codefendant’s confession. Bruton v. United States, 391 U.S. 123 , 88 S. Ct. 1620 , 20 L. Ed. 2d 476 (1968). In fact, this court has noted that “[prejudicial] imagery” in particular “may be very difficult to overcome with an instruction.” Glasmann, 175 Wn.2d at 707 (citing Gregory, 158 Wn.2d at 866-67 ). Thus, the presumption that jurors follow instructions is especially inapplicable where the challenged procedure — here, the presence of the adorable dog Ellie — is a procedure that works only because it provides such powerful symbolism.

¶40 Finally, the majority asserts that adding a claim that the challenged ruling “violated the defendant’s right to a fair trial does not change the standard of review” and that the standard of review applicable to evidentiary errors still applies. Majority at 548.1 agree that violation of a state rule concerning the conduct of the trial and control of the courtroom does not necessarily change the analysis from *560 evidentiary error to constitutional error. 13 But a constitutional issue is presented when an error in the conduct of the trial — even one that would be subject to abuse of discretion review if analyzed solely under state court rules — also violates a constitutional right. 14 The defense raised such an issue here. E.g., Pet’r’s Suppl. Br. at 3-4 (raising fair trial right under Sixth and Fourteenth Amendments to the United States Constitution).

¶45 Given the strength of the State’s evidence in this case, however, any error involving Elbe was certainly harmless, under any standard of review. I therefore concur.

The defense’s failure to request equalizing measures, despite initially objecting, seems similar to a failure to request a curative instruction despite raising an objection. The failure to request a curative instruction does not waive the claim of error, e.g., State v. Claflin, 38 Wn. App. 847 , 849 n.2, 690 P.2d 1186 (1984), and the failure to request an equalizing measure should not waive the claim of error here, either.

Sawyer v. Smith, 497 U.S. 227, 239 , 110 S. Ct. 2822 , 111 L. Ed. 2d 193 (1990); Tinsley v. Borg, 895 F.2d 520, 530 (9th. Cir. 1990) (incorrect evidentiary rulings ordinarily not a basis for constitutional claim); United States ex rel. Lee v. Flannigan, 884 F.2d 945, 953 (7th Cir. 1989) (claim based on “other crime” evidence not cognizable because error did not violate constitutional right to fundamental fairness).

E.g., Miller v. Pate, 386 U.S. 1, 6 , 87 S. Ct. 785 , 17 L. Ed. 2d 690 (1967) (evidentiary error of admitting men’s shorts with reddish brown stain amounted to constitutional error warranting federal habeas corpus relief because state knew at time of trial that the stain was not blood and, hence, conviction obtained by knowing use of false evidence); White v. White, 925 F.2d 287 (9th Cir. 1991) (granting habeas corpus relief based on petitioner’s inability to confront adverse witnesses at parole revocation hearing); Rivera v. Dir., Dep’t of Corr., 915 F.2d 280, 281-83 (7th Cir. 1990) (granting habeas corpus relief because trial court improperly used hearsay rule to exclude codefendant’s confession exculpating petitioner); Thomas v. Lynaugh, 812 F.2d 225, 230-31 (5th Cir. 1987) (admission or exclusion of evidence may violate constitution if the evidence is a “crucial, critical, or highly significant factor in the context of the entire trial” (citing Mullen v. Blackburn, 808 F.2d 1143, 1143-46 (5th Cir. 1987))); Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983) (where the violation of state’s evidentiary rule has resulted in denial of fundamental fairness, habeas corpus relief will be granted); Dickson v. Wainwright, 683 F.2d 348, 350 (11th Cir. 1982) (fundamentally unfair state evidentiary rulings are basis for habeas relief); cf. Estelle v. McGuire, 502 U.S. 62, 70 , 112 S. Ct. 475 , 116 L. Ed. 2d 385 (1991) (leaving open question of whether violation of state evidentiary rule can amount to due process clause error).