People v. McPherson

• Decision Date: 22 August 1978
• Docket Number: Docket No. 77-2216
• Citation: 85 Mich.App. 341,271 N.W.2d 228
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward McPHERSON, Defendant-Appellant. 85 Mich.App. 341, 271 N.W.2d 228
• Court: Court of Appeal of Michigan — District of US

Page 228

271 N.W.2d 228

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward McPHERSON, Defendant-Appellant.

Docket No. 77-2216.

85 Mich.App. 341, 271 N.W.2d 228

Court of Appeals of Michigan.

Aug. 22, 1978.

Released for Publication Nov. 13, 1978.

[85 MICHAPP 342] Amberg, Miller & MacPherson, P. C. by Richard J. Amberg, and John J. Schutza, Southfield, for defendant-appellant.

[85 MICHAPP 341] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Calahan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Donald W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

[85 MICHAPP 342] Before CAVANAGH, P. J., and BRONSON and WALSH, JJ.

CAVANAGH, Presiding Judge.

Following a jury trial defendant was convicted of breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305. He was sentenced to three years probation, the last six months of which were to be served in the Detroit House of Correction if the terms of probation were not met. From a denial of a motion for new trial or judgment notwithstanding the verdict, defendant appeals of right.

The theory of the defense was alibi. Several witnesses, friends of the defendant, testified as to his whereabouts around the time the offense was alleged to have occurred. Other evidence supportive of the defendant was testimony that fingerprints taken at the scene did not match those of the defendant. The only inculpating evidence presented by the people was the "testimony" of one Chad. It is undisputed that Chad is highly trained and proficient at his skill. Moreover, the police officer accompanying this witness was equally well trained and testified without contradiction that ground and weather conditions at the time were optimum.

At trial, the defendant never took the stand. Neither did Chad. Chad is a police tracking dog.

The sole issue presented in this appeal is one of first impression in this state: whether evidence of identification presented through testimony concerning the actions of a police tracking dog, standing alone, is sufficient to allow the jury to find a defendant guilty beyond a reasonable doubt.

[85 MICHAPP 343] We accept the premise that tracking dog evidence is admissible in Michigan. People v. Norwood, 70 Mich.App. 53, 55, 245 N.W.2d 170 (1976), Lv. den., 397 Mich. 884 (1976), and People v. Harper, 43 Mich.App. 500, 508, 204 N.W.2d 263 (1972), Lv. den., 389 Mich. 759 (1973). From this premise, the people argue that the tracking dog evidence is, therefore, "any evidence" upon which a jury could base a finding of guilt and that the standard of review enunciated in People v. Garcia, 398 Mich. 250, 256, 247 N.W.2d 547 (1976), requires us to affirm this conviction. We disagree. This case provides an excellent example of how the standard of review on a sufficiency of the evidence question has been semantically disfigured. While the evidence presented here is certainly "any" evidence, we are equally certain, because of the authority outlined below, that this evidence is not "sufficient". We reaffirm this Court's elucidation of the proper standard of review in People v. Royal, 62 Mich.App. 756, 757-758, 233 N.W.2d 860, 861-862 (1975):

"In passing on a motion for a directed verdict of acquittal in a criminal case, the reviewing court must 1) consider only the evidence which had been introduced at the time the motion was made, People v. DeClerk, 58 Mich.App. 528, 228 N.W.2d 447 (1975), 2) view that evidence in the light most favorable to the prosecution, People v. Vail, 393 Mich. 460, 463, 227 N.W.2d 535 (1975), People v. Watkins, 36 Mich.App. 380, 385, 193 N.W.2d 914 (1971), and 3) determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt. People v. Belcher, 29 Mich.App. 341, 352, 185 N.W.2d 440 (1971), People v. Hood, 37 Mich.App. 195, 197, 194 N.W.2d 472 (1971)." (Footnotes omitted.)

In determining the sufficiency of this evidence [85 MICHAPP 344] we note that no authority has been presented to us, nor have we found any, which indicates that tracking dog evidence, standing alone, can support a conviction. The necessity of corroboration appears uniform.

"Courts adhering to the view that bloodhound evidence is admissible concede that such evidence is to be accepted with caution and is not, under any circumstances, to be regarded as conclusive evidence of guilt. It is generally held that this class of evidence is cumulative or corroborative only. Such evidence is at best a circumstance to be considered by the jury in connection with all the other proof in the case, in determining the guilt or innocence of the accused. It is not conclusive evidence of guilt and, standing alone, is not sufficient to sustain a conviction; there must be other and human testimony to convict. Statements are frequently found in the cases to the effect that bloodhound evidence is of little probative value and is not looked upon with favor. A conviction resting in part upon bloodhound evidence cannot be supported where the other evidence tending to show guilt is fragmentary and unsubstantial." 30 Am.Jur.2d Evidence, § 1146, p. 322. (Footnotes omitted.) (Emphasis added.)

The necessity of corroborating evidence to support a conviction is also discussed in Anno: Evidence of trailing by dogs in criminal cases, 18 A.L.R.3d 1221, 1237:

"It has generally been held or recognized that bloodhound evidence properly admitted in evidence in the trial of a criminal case is not of itself sufficient to support a conviction."

The annotation goes on to provide authority from Kansas, Kentucky, Louisiana Mississippi, Missouri, North Carolina, Ohio, Oklahoma, South [85 MICHAPP 345] Carolina, and Tennessee for the rule. No citation is provided for a minority view.

Further:

"Courts adhering to the view that bloodhound evidence is admissible concede that such evidence is to be accepted with caution, and is not under any circumstances to be regarded as conclusive evidence of guilt. It is generally held that this class of evidence is cumulative or corroborative only, and not sufficient of itself to support a conviction. This appears to be the trend of the cases set out in the annotations in L.R.A. and Ann.Cas., and has been definitely held in several of the more recent cases. See State v. Fixley (1925) 118 Kan. 1, 233 (p.) 796; Meyers v. Com. (1922) 194 Ky. 523, 240 S.W. 71; State v. Freyer (1932) 330 Mo. 62, 48 S.W.(2d) 894; State v. Yearwood (1919) 178 N.C. 813, 101 S.E. 513; Copley v. State (1926) 153 Tenn. 189, 281 S.W. 460. And see dissenting opinion in State v. Grba (1923) 196 Iowa 241, 194 N.W. 250, and State v. Harrison (1921) 149 La. 83, 88 So. 696." Anno: Evidence of trailing by dogs, 94 A.L.R. 413, 425-427.

The reasons for the necessity of corroborating evidence can be gleaned from the...