Opinion
Court of Appeals No. A-10704.
September 14, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-08-6225 CR.
Lance C. Wells, Law Offices of Lance C. Wells, P.C., Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
William L. Halliday was convicted of arson in the first degree and insurance fraud for setting his house on fire and attempting to collect insurance money. Halliday argues that Superior Court Judge Philip R. Volland erred in allowing Deputy Fire Chief Bridget Bushue to testify about how, in investigating the scene of a fire, she used an accelerant-detecting dog, Jodi, to find places to collect samples for laboratory testing. The samples were then sent to a laboratory to determine whether they indicated the presence of accelerants, such as gasoline, which might suggest that the fire had been set intentionally. In addition, Judge Volland allowed Bushue to conduct a demonstration in the courtroom with Jodi to show how the dog performed its duties. Halliday argues that Judge Volland erred in allowing the demonstration. We conclude that Judge Volland did not abuse his discretion in allowing Bushue's testimony and the demonstration.
AS 11.46.400.
AS 21.36.360(b).
Factual and procedural background
A jury found Halliday guilty of arson in the first degree and insurance fraud for setting his house on fire and attempting to collect insurance.
When Halliday's house burned down, the State of Alaska and Halliday's insurance company investigated the fire. As a result of the investigation, the State charged Halliday with arson and insurance fraud.
Prior to trial, the State gave notice that it intended to present Deputy Fire Chief Bridget Bushue as an expert witness. The State asked Judge Volland for permission to have Bushue conduct a demonstration for the jury with Jodi to show how she used the dog to determine where to collect samples to send to the laboratory to test for the presence of accelerants.
Judge Volland required the State to have Bushue testify and perform the demonstration outside the presence of the jury. Bushue testified about her own and Jodi's qualifications.
Bushue then explained that she would perform a demonstration with Jodi which consisted in placing several Q-tips around the courtroom, some with accelerant on them, some without. Bushue then conducted the demonstration. Bushue testified that Jodi had been certified yearly since 2004, that Jodi had never failed a scent-detection test, and that she had never alerted to a false positive.
After the demonstration, Halliday objected to its admission on the ground that the demonstration was not sufficiently similar to the actual investigation that was conducted. He argued that the demonstration would be prejudicial because the dog was cute, and he asserted that there was no particular reason to conduct this demonstration for the jury. He also objected on the ground that the State had not shown that the use of a dog to detect accelerants was "a scientifically accepted method of detection."
Judge Volland ruled that he would allow Bushue's testimony and allow the demonstration. He concluded that the State had presented sufficient information about the dog's training and certification and prior successful track record to show that Jodi was "sufficiently reliable as a tool in fire investigation." He acknowledged that the demonstration in the courtroom was not the same as what Jodi would actually do in a fire investigation, but he concluded that, in spite of the difference, the demonstration would help the jurors to understand this part of the fire investigation. Judge Volland determined that the demonstration would not be unduly prejudicial. And he thought that the demonstration would be useful to show how the fire investigators decided to send certain samples from the fire scene to the laboratory to test whether residues that indicated accelerants were present on these samples.
Bushue then testified in front of the jury. She qualified as an expert without objection. She testified that she was called either on the same day or the day after the fire at Halliday's house. Bushue calibrated Jodi and took her through the house. Jodi alerted to a pile of debris, to the couch, and to an area in the kitchen. Samples from these locations were taken to the Alaska State Crime Laboratory and tested for accelerants. The lab detected accelerants in three of the seven samples provided. Bushue demonstrated Jodi's accelerant-detection routine for the jury, as she had outside the presence of the jury.
Why we conclude that Judge Volland did not abuse his discretion in allowing Bushue's testimony and the demonstration
On appeal, Halliday renews his argument that Judge Volland erred in allowing Bushue's testimony and the demonstration. He argues that the demonstration in the courtroom was not similar enough to how Jodi would perform during an actual fire investigation, that the demonstration was unduly prejudicial, and that the State had not shown that the use of an accelerant-detecting dog was a scientifically approved method of fire detection. In particular, on this latter point, he argues that Judge Volland erred in allowing the testimony and demonstration because the State had not demonstrated the scientific validity o f this evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc. and State v. Coon.
509 U.S. 579; 113 S. Ct. 2786 (1993).
974 P.2d 386 (Alaska 1999).
We conclude that Judge Volland did not abuse his discretion in admitting the testimony and in permitting the demonstration. All that the testimony and the demonstration showed was how the fire investigators decided where to select samples from Halliday's residence to send to the laboratory for testing. Ultimately, it was the laboratory testing that determined the presence of accelerants. Accordingly, the testimony and the demonstration with Jodi were not prejudicial.
Conclusion
The judgment of the superior court is AFFIRMED.
I write separately because, even though I agree that Halliday's convictions should be affirmed, I fear that the discussion in the lead opinion may potentially be misleading.
It is true, as stated in the lead opinion, that when Judge Volland rejected Halliday's challenge to the in-court demonstration ( i.e., the demonstration of the dog's ability to detect accelerants), Judge Volland declared that the State had proved that the dog was "sufficiently reliable as a tool in fire investigation". But given the facts of this case, the judge's statement is irrelevant.
Neither Deputy Chief Bushue nor the prosecutor ever asked the jurors to rely on the dog's detection skills as proof that the physical samples taken from Halliday's house contained accelerants. Rather, the State relied on the subsequent laboratory analysis of those samples to prove that accelerants were present.
In other words, it ultimately made no difference to the State's case whether Deputy Chief Bushue selected the samples by using her dog, or by throwing darts, or by closing her eyes and collecting samples at random. The significant facts were that (1) the samples came from the interior of Halliday's house, and (2) laboratory testing revealed that many of these samples contained residue of accelerants — evidence tending to prove that someone intentionally set the house on fire.
Given these circumstances, the demonstration of the dog's prowess had very little relevance to the issues litigated at Halliday's trial, and a good argument might be made that the demonstration was a waste of time. But as far as potential prejudice to Halliday, there is nothing to indicate that the demonstration was anything other than a harmless (and perhaps entertaining) digression from the main business of the trial. Thus, even assuming that the trial judge abused his discretion in allowing the State to conduct this demonstration, any error was harmless.