State v. Smith

• Decision Date: 10 February 2011
• Docket Number: No. 14–09–00977–CR.,14–09–00977–CR.
• Citation: 335 S.W.3d 706
• Parties: The STATE of Texas, Appellant,v.Jason A. SMITH, Appellee.
• Court: Texas Court of Appeals

335 S.W.3d 706

The STATE of Texas, Appellant,

v.Jason A. SMITH, Appellee.

No. 14–09–00977–CR.

Court of Appeals of Texas, Houston (14th Dist.).

Feb. 10, 2011.

Stephen A. Doggett, Richmond, for Appellant.John F. Healey, Jr., Gail Kikawa McConnell, Richmond, for State.Panel consists of Justices FROST, BROWN, and CHRISTOPHER.

OPINION

KEM THOMPSON FROST, Justice.

Appellant, the State of Texas, challenges an adverse pretrial ruling suppressing and excluding expert witness testimony pertaining to dog-scent lineup identification evidence. Finding no error in the trial court's exclusion of this evidence, we affirm.

Factual and Procedural Background

A grand jury indicted appellee Jason Alexander Smith for the 2003 offense of murder by intentionally and knowingly shooting the complainant, Daryl Hayes, with a firearm. Upon discovery of the complainant's dead body inside a vehicle, officers used sterile gauze pads to collect scent samples from various locations inside the vehicle, including the backseat and the front passenger seat. Scent samples also were collected from a white t-shirt found on or near the trunk of the vehicle, a set of keys and a “toggle,” and a Glock pistol found inside the vehicle. In the investigation that ensued, officers recovered a Smith & Wesson .357 Magnum. Officers believed that the weapon, which they recovered in 2005, was the firearm used in the commission of the charged offense, which occurred in 2003.

On July 7, 2005, Fort Bend County Sheriff's Deputy Keith Pikett conducted a human-scent lineup with three of his bloodhounds. Six individuals, all black males, including Smith stood in positions 1–6. They stood about 25 to 30 feet apart.¹ As part of the lineup, Deputy Pickett “scented” ² the dogs with the scent samples taken from the vehicle. Two of the dogs were scented using the scent sample taken from the backseat. When Quincy, the first of Deputy Pikett's bloodhounds, was scented with this sample, Quincy indicated the scent belonged to the person standing in position 6. The second bloodhound, James Bond, when scented with the same sample, indicated that the scent belonged to Smith, who stood in position 1. Only one of the bloodhounds was scented with a sample taken from the t-shirt found in the vehicle, and that dog indicated that the scent belonged to Smith. Each of the three bloodhounds indicated that the scent on the .357 firearm belonged to Smith. When Quincy was scented again with the sample taken from the vehicle's backseat, Quincy indicated the scent belonged to Smith (position 1); James Bond was not scented again with the sample from the backseat. When the dogs were scented with other samples taken from the vehicle, the dogs indicated that there was “no trail” and did not identify anyone in the lineup as being associated with the scent.

Smith filed a pre-trial motion for discovery, production, and a Kelly ³ hearing on the scent evidence. At the hearing on Smith's motion, conducted on September 12, 2007, Deputy Pikett testified that he was a certified peace officer and had been a canine handler with the Fort Bend Sheriff's Department for nine-and-a-half years. Deputy Pikett described his experience in working with bloodhounds and his dogs' experience in detecting scents, as well as the scent lineup he conducted in July 2005, a procedure which occurred with Smith's legal counsel present. The trial court denied Smith's motion to suppress the scent-lineup evidence.

Smith filed a motion to exclude all testimony and evidence in connection with the scent lineup. At a hearing on April 2, 2009, the trial court addressed Smith's motion and found the scent-lineup evidence admissible and relevant. Several months later, on September 9, 2009, the trial court held a non-evidentiary hearing on Smith's motion to reconsider the ruling on the scent-lineup evidence. In this motion, Smith alleged the following:

• Deputy Pikett has committed perjury related to his education in two other court proceedings;

• Deputy Pikett's scent discrimination lineups have been proven wrong in other cases;

• Deputy Pikett has been ruled unreliable by another trial court of the same jurisdiction; and

• Dog-scent evidence has been proven wrong and unreliable in other jurisdictions in the country.

In support of his motion, Smith offered a bench memorandum with exhibits attached, but the trial court indicated that it was considering only legal arguments at the hearing and no testimony or other evidence was presented. The trial court orally granted Smith's motion for reconsideration and ruled that the scent-lineup evidence would be excluded, effectively setting aside the court's previous ruling of September 12, 2007.

In response to the State's request, the trial court entered the following findings of fact from the September 12, 2007 hearing:

1. Keith Pikett testified that there was a possible cross-contamination of the scents in the lineup in question;

2. Keith Pikett did not run a “blind” scent lineup in the instant case without the defendant;

3. Keith Pikett does not keep complete records on the scent lineups that his dogs have participated in;

4. Keith Pikett's training records regarding the dog's training are incomplete;

5. Keith Pikett's failure to maintain records makes it difficult to determine accuracy or error rates;

6. Keith Pikett's “records” were not subject to peer review; 7. Keith Pikett failed to follow up on the dispositions of cases in which his dogs participated;

8. Keith Pikett failed to perform validation testing on his dogs during scent lineups;

9. Keith Pikett testified that no one is reviewing his work;

10. The bloodhound dogs in question are not certified and there is no recognized industry standard on bloodhounds and no certification program for bloodhounds;

11. While the idea that bloodhounds can track and identify scents is accepted as valid, there is no clearly accepted method for conducting scent lineups;

12. No literature was offered by the State in support of the manner in which the scent lineup in question was conducted;

13. No independent evidence was presented by the State regarding the potential rate of error;

14. No evidence was presented by the State regarding the availability of other experts to test and evaluate the manner in which the scent lineup in question was conducted;

15. The defense presented evidence that the dogs in question could be intentionally or unintentionally influenced by the dog handler because the manner in which the scent lineup in question was conducted;

16. There was no showing that the scent lineup results could be duplicated by others following the same methods.

The trial court offered the following conclusion of law: “Keith Pikett's methods in this case were not shown to be sufficiently reliable to allow his testimony to be admitted, and therefore Keith Pikett will not be allowed to testify as an expert.”

The trial court entered an order on October 23, 2009, excluding the testimony of Deputy Pikett. The State filed a motion to reconsider the ruling and provided documents for support. The trial court denied the State's motion. The State now appeals, asserting that the trial court erred in excluding Deputy Pikett's testimony regarding the scent lineup.

Analysis

We review a trial court's ruling on the admissibility of scientific evidence under an abuse-of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). The trial court is the sole judge of the weight and credibility of the evidence presented at the suppression hearing. See Winston v. State, 78 S.W.3d 522, 525 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (citing Weatherred, 15 S.W.3d at 542). As a reviewing court, we consider the trial court's ruling in light of the evidence presented at the time of the trial court's ruling.⁴ See Weatherred, 15 S.W.3d at 542. A reviewing court must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. We consider whether the trial court acted without reference to guiding rules or principles or whether the trial court acted arbitrarily or unreasonably in so ruling. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (op. on reh'g).

Did the trial court err in excluding the canine handler's testimony?

In its first issue, the State asserts the trial court erred in excluding Deputy Pikett's testimony without reference to the rules and principles set forth in this court's opinion in Winston v. State, in which a prior panel concluded the trial court did not abuse its discretion in admitting testimony of the same canine handler regarding an accused's identification during a dog-scent lineup. See 78 S.W.3d at 529.

Texas Rule of Evidence 702, entitled “Testimony by Experts,” governs the admission of expert testimony, and provides:

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.

Tex.R. Evid. 702; see Winston, 78 S.W.3d at 525. A proponent of scientific evidence must show by clear and convincing proof that the proffered evidence is sufficiently relevant and reliable to assist a factfinder in determining a fact issue or understanding the evidence. See Weatherred, 15 S.W.3d at 542.

In assessing the reliability of scientific evidence, the Texas Court of Criminal Appeals has set forth a three-prong reliability test and identified seven non-exclusive factors for consideration.⁵ Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992); see Winston, 78 S.W.3d at 525. But, because, as in this case, interpretation of a dog's reaction to a scent lineup is based on training and experience, and not scientific principles, we apply the less rigorous test set forth in the Nenno case.⁶ See Winston, 78 S.W.3d at 526 (applying criteria set forth in Nenno v. State, ...