Brian Keith Lord (born 1961) is an American
murderer. His case was featured on Forensic Files.
In 1974, at the age of 13, Lord murdered his
friend's mother by shooting her in the back as she hung clothes on a
clothesline. "For that crime, Lord served only six months in a
juvenile detention facility and was released."
In 1986, at age 25, he was hired as a carpenter at
the home of the neighbors of 16-year old Tracy Parker, Wayne and
Sharon Frye. Lord subsequently became acquainted with Tracy, who often
rode horses owned by the Fryes. Finding himself alone with her on the
night of September 16, 1986, Lord persuaded her to get into his truck
under the guise of giving her a ride home. He drove to his brother's
workshop, somehow coerced her into going inside, and raped and
Investigation into Tracy's disappearance initially
focused on the Fryes. Her last discernible interaction was a telephone
call made by her to her friend from their residence. A manhunt took
place, and some of her blood-soaked clothes were found in a wooded
area on the weekend of September 20. Her semi-nude body was found on
Investigators began considering Lord as a suspect
after it was discovered that he called his family roughly ten minutes
prior to Tracy from the same phone that Tracy called her friend on.
Lord denied any involvement and informed police that he had traveled
to his brother's workshop that night. The workshop was investigated as
a possible murder location which led to the discovery of a large blood
spot on the floor; samples of material from the workshop were
collected. A green paint chip found on Tracy's body was matched to a
dismantled fence that Lord had hauled in his truck, thus incriminating
Lord was arrested, tried, convicted, and sentenced
to death in 1987. During the trial, he leveled threats at the Parker
family. His death sentence was voided in 1997, his conviction was
overturned in 1999, and after much delay, was given a new trial in
2003. Lord was again convicted and given a life sentence.
Man found guilty a second time for girl's 1986
By Christine Clarridge - Seattle Times
April 30, 2003
A man whose 1987 murder conviction in the slaying
of a 16-year-old Poulsbo teen was overturned by an appeals court was
found guilty of the murder a second time yesterday in Kitsap County
Brian Keith Lord was convicted of aggravated first-degree
murder in the 1986 rape and murder of Tracy Parker.
Soon after the verdict was read, Lord was sentenced
to life in prison without release.
"It was a just and right result," said deputy
prosecutor Ione George. "I know Tracy's family is very pleased and
Lord was sentenced to death after his conviction in
1987 of murdering and raping Parker on Sept. 16, 1986, after she had
accepted a ride from him from a friend's house.
Both his death sentence and conviction were
overturned by the federal 9th Circuit Court of Appeals, which said
Lord's attorneys at the time had wrongly excluded the testimony of
witnesses who thought they might have seen Parker alive after the day
that prosecutors said she had been killed.
Lord's new defense team had hoped those witnesses
and DNA evidence would exonerate their client.
The defense offered the DNA results of a semen
sample taken from the victim that they said couldn't have come from
Lord. Prosecutors, however, argued that the sample was too degraded or
too diluted to be reliable.
STATE v. LORD
STATE of Washington, Petitioner, v. Brian Keith LORD, Respondent.
Argued Oct. 26, 2006. -- August 30, 2007
Catherine E. Glinski, Attorney at Law, Manchester,
WA, for Petitioner.Randall Avery Sutton, Kitsap Co. Prosecutor's
Office, Port Orchard, WA, for Respondent.
¶ 1 The right to a fair trial by an impartial jury
is a foundation of our criminal justice system. Today we must decide
whether the courtroom presence of lapel buttons, showing a picture of
the victim, deprived the defendant of this fundamental right. We
conclude, as did the courts below, there was no inherent prejudice and
affirm the conviction.
¶ 2 Our constitution also guarantees that a trial
will be public, allowing the attendance of spectators who have an
interest in the trial. Courts must presume that the jurors we
entrust with determining guilt both understand, and have the fortitude
to withstand, the potential influence from spectators who show
sympathy or affiliation. An underlying presumption is that jurors
are intelligent and responsible individuals. A similar assumption
from which jurors are chosen, underlies our democracy. As further
protection, jury panels are instructed and solemnly charged by the
court with the duty to avoid bias or prejudice.2
A simple picture button, a sign of support or sympathy that does not
expressly advocate guilt or innocence, does not alone impermissibly
bias a jury.
¶ 3 In determining whether a jury has been unduly
influenced, there is an important distinction between the potential
impact of a “state-sponsored” message and a message from private
The special influence of the imprimatur of the State is often
troubling, while private acts are more likely understood as private
¶ 4 We hold that spectator signs of affiliation-here
through buttons showing a victim's picture-do not automatically
present “ ‘an unacceptable risk ․ of impermissible factors coming into
play.’ ” Holbrook v. Flynn, 475 U.S. 560, 570, 106 S.Ct. 1340, 89
L.Ed.2d 525 (1986) (quoting Estelle v. Williams, 425 U.S. 501, 505, 96
S.Ct. 1691, 48 L.Ed.2d 126 (1976) (inherent prejudice requires an
unacceptable risk of impermissible factors)). Here, Lord was not
denied a fair trial or the constitutionally guaranteed presumption of
innocence. We also hold dog handler evidence was not impermissibly
denied in the trial and uphold Lord's conviction.4
FACTS AND PROCEDURAL HISTORY 5
¶ 5 Brian Keith Lord seeks review of the Court of
Appeals decision affirming an aggravated first degree murder
conviction. Lord asserts his right to a fair trial was violated
because several trial spectators were allowed to wear buttons
depicting a picture of the victim for three days of his month long
trial. Lord also contends that the trial court erred by excluding
potentially exculpatory dog handler evidence that might indicate the
victim was abducted from a nearby road rather than the crime scene.6
A closely related contention is that the State should have further
investigated this handler (who had searched for the victim when she
¶ 6 Lord was convicted for the first degree murder
of Tracy Parker and sentenced to death on August 18, 1987. On
appeal, this court affirmed the conviction and sentence. State v.
Lord, 117 Wash.2d 829, 822 P.2d 177 (1991). On habeas review, the
Ninth Circuit Court of Appeals reversed Lord's conviction on the
grounds his trial counsel failed to present three witnesses who would
have testified they thought they saw the victim alive after Lord was
supposed to have killed her. Lord v. Wood, 184 F.3d 1083 (9th
¶ 7 The case was remanded to the Kitsap County
Superior Court, and this second trial included the testimony from the
disputed three witnesses, as well as some additional deoxyribonucleic
acid (DNA) analysis of blood and other evidence. The jury found Lord
guilty, and the court sentenced Lord to life imprisonment without the
possibility of parole. The Washington Court of Appeals affirmed. State
v. Lord, 128 Wash.App. 216, 114 P.3d 1241 (2005). Lord then appealed
to this court.
¶ 8 The State's basic theory of the crime remained
the same. On September 16, 1986, Ms. Parker went to the residence of
Wayne and Sharon Frye for her usual horse ride. Lord abducted Ms.
Parker and took her to his brother's nearby residence where Lord had a
workshop. He raped and killed Ms. Parker in the workshop and then
drove to Clear Creek Road to deposit the body. He then returned to
his brother's home.
¶ 9 In addition to evidence from the first trial,
the State introduced newly available DNA analysis at the second trial.
Since the initial investigation in 1986, forensic technology had
progressed significantly and several different laboratories were able
to test the blood and hair samples from the crime.7
¶ 10 In the new trial, the State experts applied
more advanced DNA technology to the original evidence further
implicating Lord. Mitotyping Technologies tested a hair from the bath
towel found at Island Lake for mitochondrial DNA. The results matched
Lord, excluding 99.94 percent of the population. LabCorp also tested
a hair from the orange U-Haul blanket found near Ms. Parker's clothes,
and the DNA matched Lord, excluding 99.94 percent of the population.
Finally, LabCorp tested a blood splatter found in Lord's workshop
where the victim was allegedly killed. The test produced a complete
DNA genetic profile consistent with Ms. Parker's blood and excluded
Lord as the source.
¶ 11 During the first three days of the trial, many
of the spectators wore buttons with a picture of the victim. The
effect on the jury of these buttons is central to our first issue
today. The buttons were approximately two and one-half inches in
diameter and bore an in-life photograph of victim Tracy Parker. They
were picture buttons only and had no message or writing of any kind.
Defense counsel objected and moved the judge to remove the buttons
from the courtroom. The trial court denied the motion, allowing the
buttons to remain for the first three days of trial. Lord did not
move for mistrial nor later request a curative jury instruction.
¶ 12 On the third day, the trial court noted on the
record that the jury could see the buttons worn by spectators in the
courtroom and expressed concern that the buttons might invoke undue
sympathy from the jury. On the morning of the fourth day, the court
excluded the buttons from the courtroom for the remainder of the 31
¶ 13 As a separate issue, Lord argued that the
State failed to disclose police notes of a call from a dog handler who
had attempted to locate the victim shortly after her disappearance.
Before Lord's first trial, the State did disclose to the defense a
police report indicating that the victim's family had engaged a
handler and bloodhounds to search for Ms. Parker. While preparing
for the second trial, defense investigators inquired and were told by
the dog handler, Mr. Anderson, that his dog had tracked Tracy Parker's
scent from the Frye barn through the woods and out to the road.
Anderson also said a woman in a motor home had told him that she saw
someone who looked like Ms. Parker get into a black car. The handler
had called a detective at the Kitsap County Sheriff's department to
report his dog track efforts.8
¶ 14 Both the trial and appellate courts ruled that
the State's disclosure of the handler's existence was sufficient,
holding that the State divulged all of the information it possessed
and did not suppress any material evidence. Lord argued that the dog
handler's testimony would rebut the State's theory that Lord abducted
Ms. Parker from the stable. Although Ms. Parker had used the
pathways near the stable many times before her death, the handler
later told defense investigators his dog followed the freshest scent.
However, the handler also stated that his dogs had the ability to
follow a scent up to two weeks old. The trial court held that this
evidence was not relevant because it did not alter the State's theory
of the crime.
¶ 15 We granted review on both the picture button
and dog track issues.
STANDARD OF REVIEW
¶ 16 We review each issue separately. First,
whether the trial court erred when it allowed spectators to wear
picture buttons for three days of the trial. Second, whether the
trial court erroneously excluded testimony of the private dog handler.
The standard for both determinations is whether the court abused its
discretion. A trial court abuses its discretion when its decision is
manifestly unreasonable or exercised on untenable grounds or for
untenable reasons. Mayer v. Sto Indus., Inc., 156 Wash.2d 677, 684,
132 P.3d 115 (2006). An abuse of discretion is found if the trial
court relies on unsupported facts, takes a view that no reasonable
person would take, applies the wrong legal standard, or bases its
ruling on an erroneous view of the law. Id. The underlying questions
of law we review de novo. Id.
¶ 17 The first issue is whether Lord received a
constitutionally fair trial where several spectators wore button
pictures of the victim during the first three days of a 31 day trial.
The second question is whether the trial court abused its discretion
when it excluded the dog track evidence. We affirm the trial and
appellate court decisions on both issues, holding the trial court did
not abuse its discretion, and Lord received a constitutionally fair
A. Buttons Worn by Trial Spectators
¶ 18 It is beyond dispute that “[t]he
constitutional safeguards relating to the integrity of the criminal
process ․ embrace the fundamental conception of a fair trial, and ․
exclude influence or domination by either a hostile or friendly mob.”
Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 13 L.Ed.2d 487
(1965) (citation omitted). However, a silent showing of sympathy or
affiliation in a courtroom, without more, is not inherently
prejudicial. The trial court did not abuse its discretion when it
allowed the presence of spectator buttons for a portion of the trial.
See Flynn, 475 U.S. at 570, 106 S.Ct. 1340 (inherent prejudice
requires an unacceptable risk of impermissible factors). We affirm
the Court of Appeals decision in this case and thereby reaffirm our
recent and controlling Washington precedent, In re Pers. Restraint of
Woods, 154 Wash.2d 400, 416, 114 P.3d 607 (2005). Additionally,
United States Supreme Court precedent is consistent with our
conclusion and confirms that this issue is appropriate for state court
1. United States Supreme Court and Federal
Circuit Court Cases
¶ 19 The United States Supreme Court has analyzed
two cases with different facts that are relevant to our constitutional
analysis. In Williams, 425 U.S. at 530, 96 S.Ct. 1691, the State
forced a defendant to wear an orange prison jumpsuit in front of the
jury. The court held this action was “inherently prejudicial” and
denied defendant due process. A contrasting opinion, Holbrook v.
Flynn, held that the courtroom presence of four uniformed and armed
state troopers, who sat directly behind the defendants for the
duration of the trial, did not deny defendants due process. 475 U.S.
at 571, 106 S.Ct. 1340. These two cases can be used as bookends to
demonstrate the range of impermissible and permissible courtroom
behavior. Note that both cases involved direct action by the state,
unlike the private spectator buttons at issue in the instant case.
¶ 20 When courtroom conduct is challenged as
inherently prejudicial to the defendant, we must determine whether “
‘an unacceptable risk is presented of impermissible factors coming
into play’ ” to affect the jury. Flynn, 475 U.S. at 570, 106 S.Ct.
1340 (quoting Williams, 425 U.S. at 505, 96 S.Ct. 1691). A reviewing
court must consider the courtroom scene presented to the jury and
determine whether it was “so inherently prejudicial as to pose an
unacceptable threat to defendant's right to a fair trial.” Flynn, 475
U.S. at 572, 106 S.Ct. 1340 (emphasis added). As the language
indicates, some small risk of inherent prejudice is not automatically
fatal as long as inherent prejudice does not pose an unacceptable
threat to the outcome.10
¶ 21 In Flynn, the United States Supreme Court held
that the presence of the uniformed and armed state troopers did not
deny due process because of the “wider range of inferences that a
juror might reasonably draw from the officers' presence.” Id. at 569,
106 S.Ct. 1340. Here, picture buttons worn by the spectators more
closely resembles the circumstances in Flynn than those in Williams.
The natural reaction of grieving for a family member or friend is one
of the “wider range” of inferences that can be derived reasonably from
a picture button in the spectator gallery. Id. Many immediate
analogues come to mind; the common tradition of wearing black
clothing or armband to mourn resonates as the most obvious. The jury
would understand this as a sign of loss, but not automatically find it
inherently prejudicial or as urging conviction of defendant.
¶ 22 Another important distinction in this case is
the difference between the prejudicial effect of State or litigant
behavior versus restrictions necessary on private spectator behavior.11
Our courtrooms are constitutionally required to be open to the public,
thereby eschewing a tightly controlled, sterile trial environment in
favor of open public access. See WASH. CONST. art. I, § 22; U.S.
CONST. amend. VI.
¶ 23 United States Supreme Court cases have
considered various state actions, such as requiring a defendant to
appear in court wearing shackles or prison clothes or positioning
armed and uniformed state troopers in the courtroom.12
The Court has never held or even suggested it is a constitutional
violation to allow picture buttons to be worn in the courtroom by
private citizens. The Court has instead expressly allowed state
appellate courts to determine and follow their own constitutional
precedent regarding spectator buttons. See Carey v. Musladin, 549
U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). We do so today.
¶ 24 Lord claims that the mere presence of picture
buttons in the courtroom denied him a fair trial. He does not argue,
nor does the record support, that he suffered actual prejudice.
Instead, he asserts that the buttons were an “inherently prejudicial
factor.” See Reply Br. of Appellant at 9. Lord based his argument on
Ninth Circuit Court of Appeals cases that are neither controlling nor
persuasive. The Washington State Supreme Court has the same duty and
authority as a federal circuit court to apply the United States
Constitution and United States Supreme Court opinions in criminal
matters. U.S. CONST. art. VI, § 2; see also 28 U.S.C.
¶ 25 Lord first cites Norris v. Risley, 918 F.2d
828, 830 (9th Cir.1990), overruled in part by Musladin, 549 U.S. 70,
127 S.Ct. 649, 166 L.Ed.2d 482, where spectators wore buttons with the
phrase “Women against Rape ” for the entire trial, sold refreshments
outside the courtroom, and had contact with jurors in the elevator and
restrooms. The actions of those spectators were held to be inherently
prejudicial because the wording on the buttons implied the defendant
was guilty. Id. at 830.
¶ 26 The circuit court opinion in Norris is
otherwise distinguishable. Here, we do not have buttons with an
overt message underlined with a bold red stroke. Instead, the
photographs here had no words and portray an ambiguous message that
would be reasonably understood as a show of sympathy and support for
the victim's family. In-life photographs of the victim are not
considered inherently prejudicial in Washington, and photos of victims
are often admissible, discussed infra. The Lord buttons were removed
by the trial judge after the third day of a 31 day trial. This is
also in contrast with Norris where supporters wore the “Women Against
Rape ” buttons throughout the trial, inside and around the courtroom,
including the elevator the jury used.
¶ 27 Lord also argued that Musladin v. LaMarque,
427 F.3d 647, 651 (9th Cir.2005) vacated sub nom. Carey v. Musladin,
549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 supported his claim. In
Musladin, the Ninth Circuit Court of Appeals on a habeas corpus review
had reversed a decision by California courts that allowed courtroom
spectators to wear buttons bearing a photograph of the deceased. Id.
at 648. Three members of the victim's family wore buttons similar to
those worn in the instant case, throughout multiple days of the trial,
and in plain view of the jury. Id.
¶ 28 The United States Supreme Court vacated the
Ninth Circuit Court decision in Musladin. See 549 U.S. 70, 127 S.Ct.
649, 166 L.Ed.2d 482. The Court held that the California State Court
of Appeals decision allowing spectator buttons was an appropriate
interpretation of established law as determined by the United States
Supreme Court and that a federal circuit court may not overturn such a
state court decision. This ruling confirms that this court
appropriately follows our own carefully considered jurisprudence.
See, e.g., Woods, 154 Wash.2d 400, 114 P.3d 607.
¶ 29 It is separately notable that two Supreme
Court justices writing in Musladin favorably cited this court's
decision in Woods, and also cited the Washington Court of Appeals
opinion below in State v. Lord, as reasonable state court applications
of established constitutional precedent regarding spectator conduct. Musladin,
127 S.Ct. at 654; see also id. at 658 (Souter, J., concurring).
2. Washington Law
¶ 30 Washington law is clear on this matter. We
have recently ruled that silent displays of affiliation by trial
spectators, which do not explicitly advocate guilt or innocence, are
permissible. Woods, 154 Wash.2d at 416, 114 P.3d 607. In Woods, the
defendant complained of black and orange remembrance ribbons worn by
spectators during a murder trial. Id. at 417. Woods objected to the
presence of the ribbons. The trial judge allowed them, with the
caveat that the judge could provide a jury instruction, if necessary,
to mitigate any prejudicial effects. Id. In that case, we applied the
Supreme Court's decision in Flynn as the controlling law and upheld
the conviction. Id. at 416-18, 114 P.3d 607. We reaffirm this
¶ 31 In Woods, we also found the ribbons were
distinguishable from the printed buttons in Norris because the
“ribbons did not contain any inscription. They were simply ribbons
that the wearers indicated they wore in memory of the victims.” Id.
at 417, 114 P.3d 607.
¶ 32 The picture button in this case, like the
ribbons in Woods, did not bear any message regarding guilt or
innocence. Id. The facts before us are directly analogous to Woods.
The holding in Woods was also informed by our exhaustive review of
numerous states' treatment of trial spectators who silently signal
their affiliation. Though not binding, this court did summarize many
foreign cases that were consistent with our analysis:
Many courts have used the Holbrook [Flynn] standard
and have found that no inherent prejudice exists so as to taint the
defendant's right to fair trial from the wearing of buttons or other
displays. See, e.g., Buckner v. State, 714 So.2d 384, 389 (Fla.1998)
(spectators holding up victim's picture was not inherently
prejudicial); Pachl v. Zenon, 145 Or.App. 350, 929 P.2d 1088, 1093
(1996) (spectators wearing buttons with inscription “Crime Victims
United” was not prejudicial and counsel was not ineffective for
failing to challenge the issue); State v. Braxton, 344 N.C. 702, 477
S.E.2d 172, 177 (1996) (spectators wearing badges with victim's
picture on them was not prejudicial). In most cases involving
violent crime, there is at least one grieving family present at the
trial and the presence of such persons should not come as any surprise
to the jury members. See, e.g., State v. Richey, 171 W.Va. 342, 298
S.E.2d 879, 889 (1982) (“We must assume that a jury has the fortitude
to withstand this type of public scrutiny, and cannot presume
irreparable harm to the defendant's right to a fair jury trial by the
presence of spectators who may have some type of associational
identity with the victim of the crime.”).
Woods, 154 Wash.2d at 418, 114 P.3d 607.
¶ 33 Thus, this court has previously decided where
picture buttons and ribbons fall along the spectrum of permissible
courtroom behavior. Cf. Flynn, 475 U.S. at 571, 106 S.Ct. 1340.
Using Woods as our guide, we reaffirm that there is no per se
“inherent prejudice [to] the defendant's right to fair trial from the
wearing of buttons or other displays.” 154 Wash.2d at 418, 114 P.3d
¶ 34 Moreover, this court has also held in other
decisions that jury viewing of in-life photographs of the victim is
not inherently prejudicial, especially in a case where the jury will
see crime scene photographs of the victim. State v. Pirtle, 127 Wash.2d
628, 651-53, 904 P.2d 245 (1995); State v. Furman, 122 Wash.2d 440,
452, 858 P.2d 1092 (1993) (“ ‘In-life’ pictures are not inherently
prejudicial, particularly where as here the jury has seen ‘after death’
pictures of the victim's body.” (footnote omitted) (quoting State v.
Rice, 110 Wash.2d 577, 599-600, 757 P.2d 889 (1988), cert. denied, 491
U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989))). In the instant
case, both crime scene and in-life photographs were admitted into
evidence and seen by the jury. Because the buttons in controversy
carried an in-life photograph of the victim, they were not inherently
prejudicial. Therefore, there was no unconstitutional infringement
of defendant's right to a fair trial.14
¶ 35 Finally, Lord did not make a motion for
mistrial or for a curative jury instruction. Such inaction has been
held to constitute waiver, unless manifest constitutional error is
found. See State v. Hoffman, 116 Wash.2d 51, 93, 804 P.2d 577 (1991)
(“Reversal is not required if the error could have been obviated by a
curative instruction which the defense did not request.”). Moreover,
a mistrial would be appropriate only if an error or misconduct is so
prejudicial that it could not be cured, and thus, the defendant did
not receive a fair trial. State v. Hopson, 113 Wash.2d 273, 284-85,
778 P.2d 1014 (1989); see also State v. Weber, 99 Wash.2d 158, 165,
659 P.2d 1102 (1983) (“A mistrial should be granted only when ‘nothing
the trial court could have said or done would have remedied the harm
done to the defendant.’ In other words, a mistrial should be granted
only when the defendant has been so prejudiced that nothing short of a
new trial can insure that defendant will be tried fairly.”) (quoting
State v. Gilcrist, 91 Wash.2d 603, 612, 590 P.2d 809 (1979) (quoting
State v. Swenson, 62 Wash.2d 259, 280, 382 P.2d 614 (1963))). A
defendant generally cannot decline to ask for a mistrial or jury
instruction, gamble on the outcome, and when convicted, reassert the
B. Dog Track Evidence
1. Did the State Properly Disclose the Dog Track
¶ 36 Lord argues that we should dismiss the murder
charge because the State failed to disclose allegedly exculpatory dog
track evidence. We disagree. The prosecution has a duty to
disclose all evidence in its possession that might be favorable to the
defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963). This court has also recognized that “[t]o comport with
due process, the prosecution has a duty to disclose material
exculpatory evidence to the defense and a related duty to preserve
such evidence for use by the defense.” State v. Wittenbarger, 124
Wash.2d 467, 475, 880 P.2d 517 (1994). The duty to disclose includes
anyone working on the State's behalf, including police. Kyles v.
Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
¶ 37 Lord complains of the State's alleged failure
to disclose more than the sheriff department's notes referring to the
dog handler, which were provided before the first trial. See, e.g.,
Brady, 373 U.S. at 87, 83 S.Ct. 1194. Years later, before the second
trial, the handler told defense investigators that his dog followed a
trail of the victim from the stable to the nearby road. The handler
also asserted that a woman in a motor home indicated that she had seen
a girl who looked like the victim get into a car on the roadside. Br.
of Appellant at 38.
¶ 38 However, the State did not receive and retain
such extensive information. The police report only stated that the
family had initiated a bloodhound track, which was performed by a
private party. Verbatim Report of Proceedings (VRP) (Oct. 2, 2002)
at 54. There is a reasonable explanation for the attenuated nature
of the police report. At the time of the tracking, Ms. Parker was
not yet formally considered “missing” by police. There was no
evidence of foul play, no file number yet established for search
information, and the matter was still being handled as a common
runaway investigation. See 5 VRP (Feb. 25, 2003) at 588. Lord
contends the State should have inquired about additional details, and
then preserved the potentially exculpatory evidence.
¶ 39 This argument fails. The original disclosure
of the police report was sufficient, especially since the existence of
the handler was noted (Mr. Anderson was not identified by name and
address, but his employment made his identification a simple matter,
which was easily accomplished by the defense years later). See VRP
(Oct. 2, 2002) at 46-47. Additionally, the disclosure satisfies the
State's duty because the evidence was not per se exculpatory. See
Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d
281 (1988) (when evidence is only potentially exculpatory, the
defendant must show either prejudice or bad faith by law enforcement
¶ 40 This information was only potentially
exculpatory because it did not change the State's basic theory of the
crime: Lord abducted Ms. Parker, either from the stable or from the
road, before he transported her to the workshop where he raped and
killed her. Suppl. Br. of Resp't at 16. The point of abduction
was only incidental.
¶ 41 Lord has shown neither bad faith by the State
nor prejudice. There is no Brady violation in the instant case
because the State disclosed all of the information it had, namely a
report showing the dog track was done. The handler's other opinions,
e.g., that the dog usually followed the most recent scent, were not in
the State's possession and did not prejudice the outcome of the
proceeding. In re Pers. Restraint of Benn, 134 Wash.2d 868, 916, 952
P.2d 116 (1998) (“the ‘question is not whether the defendant would
more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence’ ” (quoting
Kyles, 514 U.S. at 434, 115 S.Ct. 1555)).
¶ 42 Additionally, the defense team could have
uncovered the full story of the dog handler through a diligent
investigation. Evidence that could have been discovered but for lack
of due diligence is not a Brady violation. See Benn, 134 Wash.2d at
917, 952 P.2d 116 (the court found no violation because the defense
had been given a summary of the statement and counsel could have
obtained further information through due diligence). The defense
always knew that a private handler had searched for the missing girl
with a bloodhound in 1986 but failed to investigate until 2002. VRP
(Oct. 2, 2002) at 48-50.
¶ 43 The defense now attempts to place the burden
of further investigation on the State, arguing that a roadside witness
who allegedly spoke to the handler is now impossible to find. Every
trial attorney must make difficult decisions regarding the allocation
of resources. The first defense counsel did so in choosing other
defenses, which were more likely to succeed than further investigation
of the handler or a search for a roadside witness. Merely asserting
that the State withheld information does not make it so. Here, the
defense does not establish that the State withheld any exculpatory
evidence or committed a Brady violation.
2. Did the Trial Court Properly Exclude the Dog
¶ 44 Lord also claims that the trial court's
exclusion of the dog handler denied his constitutional right to offer
testimony of witnesses in his defense. State v. Maupin, 128 Wash.2d
918, 924, 913 P.2d 808 (1996) (recognizing both state and federal
constitutional rights to present witnesses). However, the right to
present defense witnesses is not absolute. A criminal defendant has
no constitutional right to have irrelevant evidence admitted. State
v. Hudlow, 99 Wash.2d 1, 15, 659 P.2d 514 (1983). The rules of
evidence define relevancy as the tendency to make a material fact more
or less probable. ER 401. A trial court's decision to exclude
evidence will be reversed only where the trial court has abused its
discretion. State v. Picard, 90 Wash.App. 890, 899, 954 P.2d 336,
review denied, 136 Wash.2d 1021, 969 P.2d 1065 (1998) (“The
determination of whether testimony is admissible rests within the
sound discretion of the trial court.”).
¶ 45 The trial court excluded the dog handler's
testimony based on the court's determination of the relevance or
irrelevance of the handler's evidence, not his failure to qualify as
an expert or the lack of scientific acceptance of scent tracking.
See ER 702.15
¶ 46 The dog handler could not narrow the date of
the scent trail followed by his dogs beyond a two week window. Thus,
the victim could have made the scent trail during her frequent visits
to the stable at any time within the preceding 14 days. Ms. Parker
had been to the stable and road many times during that period, and the
dog handler could not definitively testify that the track his dog
followed was made on the day that Ms. Parker disappeared. Br. of
Resp't at 16. The court determined the testimony would not prove any
material fact because of the uncertain date of the scent.
¶ 47 The trial court was well within its discretion
to refuse evidence it found irrelevant. See State v. Stubsjoen, 48
Wash.App. 139, 147, 738 P.2d 306 (1987); see also ER 401. Appellate
courts cannot substitute their own reasoning for the trial court's
reasoning, absent an abuse of discretion. Stubsjoen, 48 Wash.App. at
147, 738 P.2d 306. Consequently, if the dog handler had been able to
determine that the scent track was from the date of the crime, such
evidence might have been admissible and relevant.16
However, the handler made no such claim, instead offering a two week
timeline that did not change the State's basic crime theory.
¶ 48 We also note that while there was no error in
the trial court's decision, the evidence excluded would easily meet
the harmless error standard. To determine whether error is harmless,
Washington uses “the ‘overwhelming untainted evidence’ test.” State
v. Smith, 148 Wash.2d 122, 139, 59 P.3d 74 (2002) (citing State v.
Guloy, 104 Wash.2d 412, 426, 705 P.2d 1182 (1985)).17
Under this test, if the untainted, admitted evidence is so
overwhelming as to necessarily lead to a finding of guilt, the error
is harmless. Id. The State contends that even if this court finds
that the track evidence was relevant; its exclusion amounted to
harmless error when reviewed in context. See State v. Bourgeois, 133
Wash.2d 389, 403, 945 P.2d 1120 (1997) (error is not prejudicial if
the evidence is of minor significance when compared to the overall
weight of the evidence).
¶ 49 This exclusion of the dog track evidence is
distinguishable from the three eye witnesses whose testimony was
excluded in the first trial. See Lord, 184 F.3d 1083. In that
case, the Ninth Circuit Court of Appeals found inadequate the first
trial counsel's decision to omit presentation of three witnesses.18
Id. at 1096. That court held that the omission constituted
inadequate performance by trial counsel because the testimony could
have raised reasonable doubt. Id. at 1095.
¶ 50 Here, the omitted eye witness testimony was
admitted in the second trial, as well as much additional DNA analysis
evidence. DNA evidence proved the victim's blood was found at Lord's
workshop. Two different hair DNA analyses placed Lord near different
parts of the crime scene each with a 99.94 percent probability. The
second trial cured the defects that the Ninth Circuit found in Lord,
184 F.3d 1083, and added the DNA evidence. This jury based their
verdict on a comprehensive review of all the evidence and voted to
convict Lord. Any evidentiary rulings were harmless given the weight
of the overall evidence.
¶ 51 We cannot guarantee a perfect trial, but we
shall always endeavor to assure a fair and constitutional proceeding.19
See Musladin, 127 S.Ct. at 658 (Souter, J., concurring) (citing the
reasonableness of Lord, 128 Wash.App. at 219-23, 114 P.3d 1241 “I am
wary of assuming that every trial and reviewing judge in those cases
was unreasonable as well as mistaken in failing to embrace a no-risk
standard․”). On review, complaints regarding courtroom conduct under
the supervision of trial courts require reversal only when a court is
presented with an unacceptable risk. The requisite unacceptable risk
of inherent prejudice to reverse requires more than the mere presence
of photo buttons worn by grieving family members and spectators.
¶ 52 Finally, the State did not have a duty to
further investigate the dog handler since the defense was earlier
given a report showing that the tracking had been performed.
Likewise, the trial court ruling that the dog handler's testimony was
irrelevant survives abuse of discretion review. After the full and
fair second trial, these remaining complaints by Lord involve, at most,
only harmless error due to the overwhelming evidence presented to the
jury. We affirm the trial and appellate courts and Mr. Lord's
¶ 53 Although I substantially agree with the
majority, I agree with the dissent that exclusion of the dog handler's
testimony was error. However, since that evidence was of marginal
relevance, I agree with the majority that the error was harmless.
¶ 54 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 defense, and because the dog handler's testimony would
have directly contradicted the State's theory, this error cannot be
¶ 55 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 Wash.2d 612,
621, 41 P.3d 1189 (2002). And relevant evidence need provide only “a
piece of the puzzle.” Bell v. State, 147 Wash.2d 166, 182, 52 P.3d
¶ 56 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.
¶ 57 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 this state.” ER 402.1
There is no suggestion any such exception applies here.2
¶ 58 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, 108 S.Ct.
646. 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 Wash.2d 336,
341, 178 P.2d 341 (1947). Therefore, an error is harmless if it does
not affect the evidence properly before the jury.
¶ 59 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 Wash.2d 909, 917, 167 P.2d 986
(1946). The assumption 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).
¶ 60 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 Wash.App. 563, 625 P.2d 713
(1981) (admission of evidence of inculpatory statements made after
Miranda warnings 3
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 Wash.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.
¶ 61 I dissent.
¶ 62 I join Justice Sanders in dissent. But while
I concur with the majority's resolution of the jury taint issue, I
write separately to set forth my reasons.
¶ 63 A trial is not a sporting event where fans
wave signs, logos, and photographs declaring their allegiance for one
team or another. I would hold that when a court effectively permits
spectators to participate in a trial, prejudice will be presumed.
Because I find the thought of courtroom spectators wearing buttons
communicating their views on a central issue before the court
abhorrent to a fair and impartial trial, I cannot join the majority.
¶ 64 Courts have a constitutional obligation to
ensure a fair and impartial trial. Spectators help ensure that
courts are fulfilling their constitutional role by being the eyes and
ears of the public, watching justice be done. The decision makers in
our trials must be impartial. CONST. art. I, § 22.
Constitutionally, spectators, especially those who support one side or
another, may not participate in the trial. Cf. Patterson v.
Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907) (“The
theory of our system is that the conclusions to be reached in a case
will be induced only by evidence and argument in open court, and not
by any outside influence, whether of private talk or public print.”).
When spectators become participants, fairness and impartiality are
jeopardized and the constitutional promise of due process under law is
undermined. Cf. CONST. art. I, §§ 3, 21, 22.
¶ 65 “Justice in all cases shall be administered
openly․” CONST. art I, § 10. This prevents secret trials, ensures
that judges perform their constitutional role, and fosters public
confidence in the administration of justice. Justice must be
administered openly. Though in the courtroom, the right of the
accused to a fair and impartial trial is paramount and the expressive
right of spectators is subordinate. Seattle Times Co. v. Rhinehart,
467 U.S. 20, 32-33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). The
constitutional role of the spectator is to be an observer and nothing
more. Any effort on the part of the spectators to communicate with
the jury should be scrupulously prevented by the judge.
¶ 66 Brian Lord was on trial for murder. For the
first three days of his trial, many spectators, over Lord's objection,
wore large buttons bearing photographs of the murder victim, Tracy
Parker. The buttons carried no message other than the message
implicit in the presence of the photograph. On the third day, the
able trial judge must have begun having second thoughts about allowing
the buttons. She knew by then that jurors could see the buttons and
was rightly concerned that the buttons might evoke undue sympathy from
the jury, compromising Lord's right to an impartial process. On the
fourth day, the judge excluded the buttons from the courtroom.
¶ 67 We have found the wearing of black and orange
remembrance ribbons by trial spectators permissible because the
ribbons did not advocate a finding of guilt or innocence. In re Pers.
Restraint of Woods, 154 Wash.2d 400, 416, 114 P.3d 607 (2005). But
in Norris, spectators wore buttons with the phrase “Woman Against
Rape,” and the court rightly held the communications were inherently
Norris v. Risley, 918 F.2d 828, 830 (9th Cir.1990). The majority
concludes that wearing buttons bearing Tracy Parker's picture is more
like wearing black and orange ribbons than buttons saying, “Woman
Against Rape.” Certainly, wearing buttons condemning rape during a
rape trial is more pointed but wearing the victim's image in a trial
for the rape and murder of that victim is fairly pointed itself.
Allowing either is to allow courtroom spectators to present a planned,
organized effort to communicate with-and sway-the jury. In my view,
signs, logos, and buttons with photographs have no place in a
courtroom during a trial. Accord Carey v. Musladin, 549 U.S. 70, 127
S.Ct. 649, 656, 166 L.Ed.2d 482 (2006) (Stevens, J., concurring). As
the Supreme Court said more than half a century ago, “[d]ue process
requires that the accused receive a trial by an impartial jury free
from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362, 86
S.Ct. 1507, 16 L.Ed.2d 600 (1966). In my view, judges should not
permit spectators to communicate to the jury in any overt, organized,
and concerted fashion.2
¶ 68 However, law is often an exercise is balancing.
While I would begin from the assumption that such buttons cause
undue prejudice, I would allow the presumption to be rebutted. In
this case, I am satisfied that the prejudice was constrained by the
trial court's decision to order the buttons removed 4 days into a 31-day
trial. Further, counsel made no motion for mistrial or request for a
curative instruction. Since this appears to be a reasonable
strategic decision, I cannot say the omissions rise to ineffective
assistance of counsel. Thus, I concur with the majority insofar as
it holds that Lord is not entitled to relief on this ground.
1. See RCW
2.36.055 (“The superior court at least annually shall cause a jury
source list to be compiled from a list of all registered voters and a
list of licensed drivers and indenticard holders residing in the
2. See 11
Washington Practice: Washington Pattern Jury Instructions: Criminal
1.01, at 4, 5, 7 (2d ed. Supp.2005):The only evidence you are to
consider consists of testimony of witnesses and exhibits admitted into
evidence.․․ You must not consider or discuss any evidence that I do
not admit or that I tell you to disregard.․․ You must keep your mind
free of outside influences so that your decision will be based
entirely on the evidence presented during trial and on my instructions
to you about the law․As jurors, you are officers of this court. As
such you must not let your emotions overcome your rational thought
process. You must reach your decision based on the facts proved to
you and on the law given to you, not on sympathy, prejudice, or
personal preference.(Emphasis added.)
the Court articulated the test for inherent prejudice that applies to
state conduct in Williams and Flynn, we have never applied that test
to spectators' conduct. Indeed, part of the legal test of Williams
and Flynn-asking whether the practices furthered an essential state
interest-suggests that those cases apply only to state-sponsored
practices.” Carey v. Musladin, 549U.S. 70, ---- - ----, 127 S.Ct.
649, 653-54, 166 L.Ed.2d 482 (2006) (emphasis added).
holding that such displays are not a per se indication of inherent
prejudice does not undermine a trial court judge's authority to
control the courtroom (subject to an abuse of discretion review).
Determination of inherent or actual prejudice is the practical
provenance of the trial court judge, who is in the best position to
monitor the atmosphere of the courtroom. Shirts, buttons, and other
behavior may create an overtly hostile atmosphere that could prejudice
the jury or intimidate witnesses. Therefore, the trial court judge's
examination of the circumstances surrounding the display must be given
proceedings occupy more than 30 volumes of transcripts. The
following facts are summarized from the appellate court opinion. See
State v. Lord, 128 Wash.App. 216, ¶¶ 6-7, 22-59, 62-80, 114 P.3d 1241
(2005); see also Suppl. Br. of Resp't & Br. of Appellant, fact
effort of the private dog handler to find the missing person-later
victim-was disclosed to the defense before the first trial.
the initial investigation, a search group found the victim's jacket,
red sweatshirt, jeans, underpants, and shoes near Island Lake. Nearby
they discovered a bath towel like the towel used as a curtain in the
Frye's garage, the last location where Ms. Parker was seen alive.
Another search party found an orange U-Haul blanket near Ms. Parker's
clothes. It appeared to have blood stains and was singed. Ms.
Parker's body was ultimately found a short distance from the Island
in the record suggests that the State had any additional details about
the dog track or the identity of the woman in the motor home.
Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006),
which dealt with a similar case, and reverses a Ninth Circuit Court of
Appeals decision that held such buttons were prejudicial.
the Court's language implies that one must prove both inherent and
actual prejudice. Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct.
1340, 89 L.Ed.2d 525 (1986) (“if the challenged practice is not found
inherently prejudicial and if the defendant fails to show actual
prejudice, the inquiry is over” (emphasis added)).
distinction between state and litigating private actors is highlighted
in the case Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct.
2199, 81 L.Ed.2d 17 (1984). There, the Court unanimously held that a
litigating party, a newspaper defendant in a libel action, could be
restrained from publishing material about the plaintiffs and
supporters that it obtained through court-ordered discovery. Id.
Specifically, the Court said that “[a]lthough litigants do not
‘surrender their First Amendment rights at the courthouse door,’ those
rights may be subordinated to other interests that arise in this
setting.” Id. at 32, n. 18, 104 S.Ct. 2199 (citation omitted) (quoting
In re Halkin, 194 U.S.App. D.C. 257, 268, 598 F.2d 176 (1979) (emphasis
added)). The Court explicitly noted that “on several occasions [we
have] approved restriction on the communications of trial participants
where necessary to ensure a fair trial for a criminal defendant.” Id.
Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353
(1970) (“Not only is it possible that the sight of shackles and gags
might have a significant effect on the jury's feelings about the
defendant, but the use of this technique is itself something of an
affront to the very dignity and decorum of judicial proceedings that
the judge is seeking to uphold.”); Flynn, 475 U.S. 560, 106 S.Ct.
1340, 89 L.Ed.2d 525; Estelle v. Williams, 425 U.S. 501, 96 S.Ct.
1691, 48 L.Ed.2d 126 (1976).
passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
18 U.S.C. § 1, limiting jurisdiction of federal courts to grant habeas
relief, mandating that such relief shall not be available unless the
State court decision “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).
constitutional “Victims of crimes-Rights” amendment requires the court
or jury to consider the victim during some proceedings. WASH. CONST.
art. I, § 35. See State v. Gentry, 125 Wash.2d 570, 625-26, 888
P.2d 1105 (1995).
before testifying as an expert, the handler would still have been
subject to ER 702:If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.Whether the dog track
could have survived this scrutiny is beyond the scope of our review.
the expert cannot express an opinion to a reasonable degree of
probability, then his or her opinion does not make the material issue
more or less likely. ER 401; see, e.g., State v. Huynh, 49 Wash.App.
192, 198, 742 P.2d 160 (1987) (such testimony amounts to speculation
and speculation is inadmissible); cf. note 11, supra (questioning
whether this dog handler's evidence could actually qualify under ER
overwhelming untainted evidence test is the current standard for
harmless error analysis. This standard is not without its critics or
alternatives. See Dennis J. Sweeney, An Analysis of Harmless Error
in Washington: A Principled Process, 31 GONZ. L.REV. 277 (1995/96).
The same conclusion of harmless error is reached in this case under
this alternative test.
testimony from boys who thought they saw the victim walking down the
highway days after Lord allegedly killed her.
State v. Silvers, 70 Wash.2d 430, 434, 423 P.2d 539 (1967) ( “
‘Mistakes or errors of judgment do not establish the violation of a
constitutional right.’ The constitution guarantees a defendant a
fair trial, not a perfect trial.” (quoting State v. Mode, 57 Wash.2d
829, 833, 360 P.2d 159 (1961))).
1. 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
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.
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
recognize that after our oral argument, the United States Supreme
Court denied habeas relief to a petitioner whose case bears a striking
similarity to this one, notwithstanding Woods and Norris. See Carey
v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006).
In Carey, the United States Supreme Court denied habeas relief
because the wearing of buttons with the victim's image did not violate
“ ‘clearly established Federal law, as determined by the Supreme Court
of the United States,’ ” as required by the Antiterrorism and
Effective Death Penalty Act of 1996 before a state court's ruling
could be overruled. Carey, 127 S.Ct. at 652-53 (quoting 28 U.S.C.
§ 2254(d)(1)). Whether or not clearly established federal
constitutional minimums have been violated, of course, does not answer
whether our own state constitutional standards have been met. For
those reasons, I also respectfully disagree with the majority's
characterization of the holding in Carey. Cf. majority at 1257 n.
logos, buttons, and the like are forms of expression and communication.
I agree that some spectator “communication” is inherent in the
constitutional guaranty of a public trial and thus part of the
constitutional landscape. Cf. Carey, 127 S.Ct. at 654. For example,
the quiet presence of a person sharing traits with the defendant or
the victim sitting behind the prosecutor or the defense attorney may
play an acceptable, if subtle, role in a trial.
J.M. JOHNSON, J.
WE CONCUR: GERRY L. ALEXANDER, C.J., CHARLES W.
JOHNSON, SUSAN OWENS, MARY E. FAIRHURST, BOBBE J. BRIDGE, JJ.I CONCUR:
TOM CHAMBERS, J.