People v. Norwood

• Decision Date: 19 July 1976
• Docket Number: Docket No. 21733
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl NORWOOD, Defendant-Appellant. 70 Mich.App. 53, 245 N.W.2d 170
• Court: Court of Appeal of Michigan — District of US

Page 170

245 N.W.2d 170

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl NORWOOD, Defendant-Appellant.

Docket No. 21733.

70 Mich.App. 53, 245 N.W.2d 170

Court of Appeals of Michigan.

July 19, 1976.

Released for Publication Sept. 15, 1976.

Leave to Appeal Denied Oct. 27, 1976.

[70 MICHAPP 54] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P.J., and McGREGOR and KAUFMAN, JJ.

D. E. HOLBROOK, Jr., Presiding Judge.

The defendant was convicted following a bench trial of carnal knowledge of a female over the age of 16. M.C.L.A. § 750.520; M.S.A. § 28.788. He received a sentence of five to ten years in prison. Defendant appeals as of right.

[70 MICHAPP 55] The defendant's only issue on appeal concerns the admission of testimony relating to the use of a police tracking dog. The defendant recognizes that Michigan, in harmony with a majority of its sister states, has held that tracking dog evidence is admissible. People v. Harper, 43 Mich.App. 500, 508, 204 N.W.2d 263 (1972), Lv. den., 389 Mich. 759 (1973), see generally Anno.: Evidence of Trailing by Dogs in Criminal Cases, 18 A.L.R.3d 1221, 1225--1229. Instead of directly attacking the rule, the defendant challenges the foundation that the prosecutor laid for the admission of this evidence.

Before tracking dog evidence is admissible in Michigan four condition precedents must be satisfied. People v. Harper, supra, accord, People v. Centolella, 61 Misc.2d 726, 727, 305 N.Y.S.2d 460, 462--463 (Cty.Ct., 1969). First, it is necessary to show that the handler is qualified to handle the dog. Accord, McDonald v. State, 145 Ark. 581, 584, 224 S.W. 976, 977 (1920). Second, it must be shown that the dog was trained and Accurate in tracking humans. Moore v. State, 26 Ala.App. 607, 608, 164 So. 761, 762 (1935), Hinton v. State, 175 Miss. 308, 315, 166 So. 762, 764 (1936). Third, it is necessary to show that the dog was placed on the trail where circumstances indicate that the culprit was. State v. Netherton, 133 Kan. 685, 690--691, 3 P.2d 495, 498 (1931), State v. Davis, 154 La. 295, 312, 97 So. 449, 454--455 (1923), State v. Jordan, 258 S.C. 340, 188 S.E.2d 780, 784 (1972). Fourth, it is necessary to show that the trail had not become stale when the tracking occurred. Accord, State v. Brown, 103 S.C. 437, 444, 88 S.E. 21, 23 (1916).

For a proper foundation to be laid, the prosecutor must establish that all four of the conditions are present to assure the evidence's reliability. In the present case three of the four elements are adequately established through testimony properly [70 MICHAPP 56] admitted at trial. The handler testified about the training that he received in handling the dog. Other testimony indicated that the culprit had handled the knife from which the dog detected the tracking scent. This testimony also confirmed that the culprit had left the scene through the front door. Compare Crosby v. Moriarity, 148 Minn. 201, 205--206, 181 N.W. 199, 201 (1921). Finally, the entire transaction took place approximately one hour after the incident occurred. Compare Cranford v. State, 130 Ark. 101, 105, 197 S.W. 19, 20--21 (1917), Bullock v. Commonwealth, 249 Ky. 1, 4, 60 S.W.2d 108, 109, 94 A.L.R. 407 (1933), with People v. Whitlock, 183 App.Div. 482, 484, 171 N.Y.S. 109, 110, 36 N.Y. Cr.R. 524, 526 (1918).

The handler testified extensively to the dog's training. He also explained to the trial court the procedures that he followed to prepare the dog for a particular tracking assignment. However, no testimony was introduced to indicate the accuracy of the dog's tracking ability in a non-training situation. See, E.g., People v. Centolella, supra. Furthermore, this is not a case where the dog should be allowed to validate his own reliability on the basis of this one tracking experience. State v. Rowland, 263 N.C. 353, 359, 139 S.E.2d 661, 665, 18 A.L.R.3d 1212 (1965). Because the dog became distracted by stray dogs approximately two houses from the defendant's house, the dog was unable to complete the tracking assignment by identifying the person that he was tracking. State v. Steely, 327 Mo. 16, 19, 33 S.W.2d 938, 940 (1930), State v. McLeod, 196 N.C. 542, 545, 146 S.E. 409, 411 (1929). Compare People v. Harper, supra.

Even though the admission of the evidence was erroneous, the prosecutor contends that the error must be considered harmless. GCR 1963, 529.1, [70 MICHAPP 57] People v. Robinson, 386 Mich. 551, 562, 194 N.W.2d 709 (1972). He argues that the evidence relating to the tracking dog is mere surplusage in view of the trial court's findings of fact and the long standing rule in Michigan that a rape victim's testimony does not require corroboration. People v. Miller, 96 Mich. 119, 121, 55 N.W. 675 (1893), People v. Coffman, 45 Mich.App. 480, 488, 206 N.W.2d 795 (1973), Lv. den. 390 Mich. 758 (1973). In making its findings of fact the trial court stated that '(t)his Court finds that the evidence connecting the defendant to such assault is the testimony of the complainant, * * *'. It then added that it considered the testimony about the tracking dog as corroborative of the complainant's version of the incident.

When the prosecutor argues that we should affirm the defendant's conviction because the trial court stated that it was basing its decision on the complainant's testimony, the prosecutor misconstrues both the anti-corroboration rule and the harmless error rule. The purpose of the anti-corroboration rule is not to save verdicts in which inadmissible corroborating evidence is introduced. It is designed to permit a verdict to withstand a challenge to the sufficiency of the evidence in a case in which the only testimony against the defendant is that of the complainant. People v. Brocato, 17 Mich.App. 277, 290, 169 N.W.2d 483 (1969).

In reviewing the case to determine if the complained-of error is harmless, the test is not whether there is sufficient evidence to sustain the defendant's conviction without the erroneously admitted evidence. The harmless error rule requires us to determine if the finder of fact could not have reached another result beyond a reasonable doubt if it did not consider the erroneously admitted [70 MICHAPP 58] testimony. ¹ People v. Swan, 56 Mich.App. 22, 31, 223 N.W.2d 346 (1974), People v. Roberson, 55 Mich.App. 413, 417, 222 N.W.2d 761 (1974).

In the present case we are not convinced beyond a reasonable doubt that the trial court would have convicted the defendant without the erroneously admitted evidence. The trial court, as we do, perceived the question of the defendant's guilt or innocence to be a close one. The trial court requested the improperly admitted evidence and adjourned the trial to receive it after the...