McCray v. State, 3D04-2854.

• Decision Date: 30 November 2005
• Docket Number: No. 3D04-2854.,3D04-2854.
• Citation: 915 So.2d 239
• Parties: Stanley M. McCRAY, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

915 So.2d 239

Stanley M. McCRAY, Appellant, v. The STATE of Florida, Appellee.

No. 3D04-2854.

District Court of Appeal of Florida, Third District.

November 30, 2005.

Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.

Before GREEN, FLETCHER, and ROTHENBERG, JJ.

ROTHENBERG, Judge.

The defendant, Stanley McCray, appeals his convictions of attempted burglary of a structure, possession of burglary tools, and criminal mischief, in which he was sentenced as an habitual felony offender. The defendant's sole claim on appeal regards the State's introduction of dog-tracking evidence, which he alleges was admitted without the State laying the requisite foundation establishing the reliability of the dog used to track the defendant. As we conclude that the State introduced sufficient evidence to establish the reliability of the dog-tracking evidence, we find that the trial court clearly did not abuse its discretion in allowing its admission, and affirm. Ray v. State, 755 So.2d 604, 610 (Fla.2000)(holding that the admissibility of evidence is within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion); see also Irving v. State, 627 So.2d 92 (Fla. 3d DCA 1993).

The evidence introduced by the State is as follows. Officer James Alexander was dispatched to an audible burglary alarm at a local business and arrived at the location of the alarm within two to three minutes in a marked police vehicle. The building was equipped with a flood light and the church parking lot across the street was well lit. From his position about thirty to forty feet away, Officer Alexander observed the defendant and another man kneeling at the door of the business attempting to pry it open with a metal object for one to two minutes, until they stood up facing him. Officer Alexander immediately turned on his vehicle's headlights and began walking towards them, at which point, the defendant and his companion fled. Officer Alexander chased the defendant, whom he described as an older black male five feet five inches tall to five feet seven inches tall wearing dark clothing, across the street into the parking lot of the church, where he lost sight of him.

Back-up arrived within minutes and set up a perimeter. Officer Robert Baker and his canine partner, Buddy, also arrived, and were directed by Officer Alexander to the location where he lost sight of the defendant, and was provided with a description. Within minutes, Buddy picked up a track and, as he was trained to do, dragged Officer Baker along with him as he tracked the scent which led him to a large concrete enclosure which housed the church's air conditioning units. Upon arriving at the enclosure, Buddy stopped, began barking, and tried to scale the wall. The defendant was found hiding underneath one of the air conditioning units located within the concrete structure Buddy had alerted to. Officer Alexander positively identified the defendant as the man he chased from the business and this identification was not challenged at trial. The tracking took approximately five minutes and only ten to fifteen minutes had elapsed between the defendant's flight and Officer Alexander's positive identification of the defendant.

In Florida, evidence of the conduct of a dog tracking a suspect may be introduced, providing a proper foundation is laid. Green v. State, 641 So.2d 391 (Fla.1994), cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d 1083 (1995); Tomlinson v. State, 129 Fla. 658, 661, 176 So. 543 (1937). The foundational requirements necessarily deal with establishing the reliability of the dog. Reliability may be established by introducing evidence of the breed, training, and past performance of the dog. In Tomlinson, evidence that the dog was a "well-trained and reliable bloodhound" was found to be sufficient.¹ Likewise, evidence of the dog's training, coupled with the fact that he/she has successfully tracked humans, was found by the First District Court to be sufficient to lay a foundation for the introduction of dog-tracking evidence. See Toler v. State, 457 So.2d 1115 (Fla. 1st DCA 1984), review dismissed, 461 So.2d 116 (Fla.1984); Edwards v. State, 390 So.2d 1239, 1240 (Fla. 1st DCA 1980)(evidence that the tracking dog was a "purebred registered bloodhound" along with evidence regarding his training and that he had successfully tracked four or five escapees from jail, sufficiently established reliability).

Officer Baker, the dog's trainer and partner, testified that he has trained dogs to track for more than thirty-five years and that he has specifically trained and worked with this dog for the past four years, which he described as a "Belgian police work...