Ronald Fred Malgren was convicted by a jury of burglary (Pen. Code, § 459). He contends: (1) evidence of dog tracking was improperly admitted; (2) the evidence was insufficient to support the conviction; (3) the trial court should have instructed sua sponte that dog tracking evidence should be viewed with caution and does not by itself warrant a conviction; and (4) the court should not have instructed on flight.
Viewed in the light most favorable to the judgment, the evidence established the following. Teenagers John and Amy Cox returned to their Burlingame
Officer Gyselbrecht of the Burlingame Police Department arrived at approximately 11:39 p.m. with a police tracking dog, Sarge. The officer walked several steps inside the front door and commanded the dog to "track." Sarge ran down the hallway and into the bedroom. From there the dog ran through the opened and damaged back door, across the backyard, and into the adjacent game reserve. A freeway was about 100 yards behind the house; the game reserve of bushes and high grass was between the house and the freeway. Sarge tracked for approximately 35 minutes and over about seven-tenths of a mile, and then ran into some high bushes and began to growl and bite. Appellant was found in the bushes, out of breath and perspiring. The bottoms of his trouser legs were wet, and there were leaves on his jacket, and mud and grass stains on his shoes.
Later that night, a penlight was found on the fire trail approximately 75 feet north of the burglarized residence. Although the surrounding ground was wet, the penlight was dry. The next day a pair of pliers was recovered hidden at the base of a bush about five houses north of the residence. Test of metal fragments on the teeth of the pliers and of the spacing of the teeth compared with marks on the doorknobs yielded results consistent with the theory that the pliers were used in the burglary.
Appellant testified in his own defense. He claimed that he had helped a woman start her car, and she invited him for a ride. As they were driving south on the freeway, he made unflattering remarks about her car, and she told him to get out. He was walking on the freeway when the dog came along and attacked him. He ran into the bushes to escape from the dog.
While a few courts have held that evidence of the conduct of a dog who has trailed an accused is always inadmissible, the majority view is that such evidence is admissible, provided a proper foundation is laid. (See Annot.
These requirements were satisfied here. Officer Gyselbrecht testified that the department acquired Sarge in 1978, and that he [the officer] was trained at that time as the dog's handler by Robert Outman, described by the Craig court as an expert in dog training and handling, with particular emphasis on police dogs. (Craig, supra, 86 Cal. App.3d at p. 916.) In addition to that initial training, he and the dog had regularly participated in weekly maintenance training with Outman between 1978 and 1980, and with trainer James Patrick thereafter. Prior to its acquisition by the department, Sarge was trained by Outman, and was certified as 100 percent accurate. During its maintenance training, the dog continued to perform with 100 percent accuracy, and could successfully track an individual even though seven or eight people had walked over the area both before and after the track was laid. Gyselbrecht had actually used the dog on the street for tracking 15 or 20 times, and had captured 2 or 3 suspects. Sometimes the trail was interrupted by obstacles such as deep creeks or rooftops, or by the suspect's flight in an auto; on other occasions the officer called the dog back because he did not want it to track across a freeway. As for the circumstances of this tracking, the dog was placed on the trail within 20 to 25 minutes after the intruder fled from the victims' home.
Appellant also contends that a proper foundation was not laid for the admission of evidence about a second dog, Hunter, which found the pliers in the bushes. Appellant made no objection to that testimony at trial, however, and cannot challenge its admissibility for the first time on appeal. (People v. Smith (1977) 70 Cal.App.3d 306, 317 [138 Cal.Rptr. 783].)
In Craig, supra, 86 Cal.App.3d 905, the court stated, without citation of authority and without amplification, that dog trailing evidence, by itself, is not sufficient to warrant conviction. (Id., at p. 918, original italics.) Courts in those states admitting dog trailing or tracking evidence are in general agreement that such evidence alone cannot support a conviction, but we have found no consistent or clear expression of either the kind or the quantity of other evidence required, or of what that other evidence must establish. (Cf. People v. Perryman (1979) 89 Mich.App. 516 [280 N.W.2d 579, 583] [other direct evidence of guilt necessary]; State v. Taylor (1978) 118 N.H. 855 [395 A.2d 505, 507] [bloodhound evidence not in and of itself evidence a crime was committed; must be "some other evidence of guilt"]; Meyers v. Commonwealth (1922) 194 Ky. 523 [240 S.W. 71, 74] [must be "other sufficient incriminatory evidence" to uphold the conviction].) While we agree that there must be some corroborating evidence when dog tracking evidence is used to prove the identity of a criminal defendant, we see no reason to require that supporting evidence to be direct. The fact that all evidence is circumstantial does not lessen its weight, and circumstantial evidence is as adequate to convict as direct evidence. (People v. Goldstein (1956) 139 Cal.App.2d 146, 155 [293 P.2d 495].)
We emphasize that our task is not to decide whether we believe the evidence at trial established appellant's guilt beyond a reasonable doubt, but to determine whether substantial evidence supports the conclusion of the trier of fact. We must view the evidence in the light most favorable to the judgment, presume in support of the judgment the existence of every fact the jury could reasonably deduce from that evidence, and determine whether the record discloses substantial evidence such that a reasonable trier of fact could find the appellant guilty
Officer Gyselbrecht arrived at the victims' home less than 30 minutes after the burglar forcibly broke open the back door and fled. The officer ordered Sarge, a well-trained, experienced, and reliable tracker, to track. Sarge led the officer through the damp, grassy game reserve behind the house to appellant, hiding in the bushes less than seven-tenths of a mile north of the house. Although the night was cold, appellant was panting and perspiring, as if he had been running. The bottoms of his pants legs were wet, and his tennis shoes were muddy and wet and grass-stained; those facts also support the reasonable inference that he had just run from the home through the game reserve.
Officer Hall, who walked along the freeway opposite the Cox home after the burglary, testified that Sarge ran past him without pausing and headed into the bushes, followed by his trainer; Hall then saw appellant emerge from the bushes. Hall had not previously seen appellant or anyone else on the freeway or on its shoulder.
Appellant was found north of the victims' home. Between the home and the bushes where he was found, officers also found a penlight, which appeared to have been recently dropped, and pliers with metal fragments in them which were consistent with their use in the burglary. The combination of all this circumstantial evidence is sufficient to support the conviction.
In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case. (People v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal.Rptr. 436, 650 P.2d 311].)
The sua sponte rule "`... [is] undoubtedly designed to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries of ineptness of counsel under the adversary system....' [Citation.]" (People v. Flannel (1979) 25 Cal.3d 668, 683 [160 Cal.Rptr. 84, 603 P.2d 1].) The trial court need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts. (People v. Wade (1959) 53 Cal.2d 322, 334 [348 P.2d 116].) "The duty of the trial court involves percipience — not omniscience." (People v. Cram (1970) 12 Cal.App.3d 37, 41 [90 Cal.Rptr. 393].)
It did not take omniscience to see the significance of dog tracking evidence in this case, and Craig was decided almost three years before appellant's trial. The principle that dog trailing evidence alone is not sufficient to warrant conviction was unquestionably a principle openly and closely connected with the facts before the court. Nevertheless, we disagree that the court was obligated to instruct that dog trailing evidence must be viewed with caution, or that such evidence is of little probative value. Unlike accomplice testimony, dog tracking evidence is not inherently suspect because of a self-interested source. (See People v. Gordon (1973) 10 Cal.3d 460, 471 [110 Cal.Rptr. 906, 516 P.2d 298].) The notion that such evidence is of slight probative value or must be viewed with caution stems at least in part from a fear that a jury will be in awe of the animal's apparent powers and will give the evidence too much weight. (See People v. McPherson (1978) 85 Mich.App. 341 [271 N.W.2d 228, 230].) In light of the stringent foundational requirements which must be met before such evidence is admissible at all, however, we see no reason to categorize that evidence thereafter as inferior or untrustworthy, and instruct that it be given less weight than other evidence. The Craig court itself suggested that what the law in this state actually requires is not that dog trailing evidence be viewed
We hold, then, that the trial court should have instructed sua sponte that (1) when dog tracking evidence is used to prove the identity of a defendant, there must be some other evidence, either direct or circumstantial, which supports the accuracy of that identification evidence; and (2) in determining what weight to give such evidence, the jury should consider the training, proficiency, experience, and proven ability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding the trailing in question.
Judgment is affirmed.
Barry-Deal, J., concurred.
We start with the proposition that the identity of the appellant must be proven beyond a reasonable doubt. (People v. Law (1974) 40 Cal.App.3d 69, 85 [114 Cal.Rptr. 708].) The reasons for which the minority of states
Where, as here, dog-tracking evidence is the only evidence upon which a conviction could be based, great care must be exercised in its admission and the evidence excluded if an adequate foundation is not laid. (1 Wigmore, Evidence (3d ed. 1940) § 177, p. 633.) I agree that "[h]uman life and liberty are much too sacred and too highly regarded in this country to be jeopardized or taken from the citizen, except upon testimony carrying conviction beyond a reasonable doubt." (Meyers v. Commonwealth (1922) 194 Ky. 523 [240 S.W. 71, 74].) I believe that "there must be other and human testimony." (Carter v. State (1914) 106 Miss. 507 [64 So. 215], italics added.)
Appellant's location, perspiration, lack of breath, and the leaves on his jacket as easily corroborate his alibi as the prosecution's case (i.e., if the appellant was fleeing the scene of the crime, why was he only 7/10 of a mile away 45 minutes later?). His trouser legs could have become damp and his feet muddy from trying to avoid Sarge, not because of the burglary but because the dog had come on his scent in the game reserve. The fact that the unidentified pair of
The majority also relies, for corroboration, on the proposition that the jury, obviously disbelieving appellant's version as to how he came to be in the bushes, could have inferred that appellant, by testifying falsely, showed a consciousness of guilt, and cites People v. Wayne (1953) 41 Cal.2d 814, 823 [264 P.2d 547], in support thereof.
Wayne is a case where the defendant was convicted of soliciting a bribe from a bookmaker for the purpose of "buying protection" for the bookmaker from the local police. The bookmaker paid the money through a third party to the defendant. At trial, the bookmaker and the third party testified to the payment of the money to defendant and the purpose for which it was paid. The defendant testified, admitting the receipt of the money, denied it was in any way connected with bookmaking or bribery, and gave an explanation as to why he was being paid by the bookmaker which the Supreme Court characterized as "rather peculiar" (41 Cal.2d at p. 821) and "so unusual" (41 Cal.2d at p. 823).
Because the bookmaker and the go-between were accomplices, as a matter of law, their testimony had to be corroborated before a conviction could be obtained. It is in this context that the Wayne court made the observation concerning consciousness of guilt quoted by the majority (ante, p. 240).
The difference between the case at bar and Wayne is apparent. In Wayne, there was direct prosecution testimony that money had been paid to defendant for the purpose of bribing the police. The defendant admitted that he had received the money but gave what appeared to be a contrived answer as to why the money was given to him. A jury disbelieving the defendant's testimony could well believe the prosecution testimony and infer that defendant, by lying about how the money came into his possession, showed a consciousness of guilt. In the instant case, even if the jury believed that appellant deliberately lied about how he came to be in the bushes, does that show a consciousness of guilt of a burglary committed about an hour earlier at a residence almost a mile away? Suppose that the police in searching the area had found appellant in those same bushes without the tracking dog. Suppose further that at trial, appellant had given the identical lame explanation for his presence there. Would that show a consciousness of guilt that would support a conviction? (See People v. Bamber (1968) 264 Cal.App.2d 625 [70 Cal.Rptr. 662], and cases there cited.)
Considering the record as a whole, I am of the view that the evidence corroborative of the dog's tracking is, at best, fragmentary and insubstantial. On the other hand, I would agree that a reasonable suspicion that appellant was the burglar does arise from the evidence, but suspicion is one thing — proof beyond
Assuming that there was sufficient evidence of the identity of the appellant to meet the burden of proof, I cannot agree with the majority that the court was not required to instruct, sua sponte, that the dog-tracking evidence is of little probative value and must be viewed with caution. While I agree with the majority that a sua sponte instruction is required as to the necessity for other direct or circumstantial evidence of the identity of the defendant (ante, p. 242), I would hold further that whenever the evidence is admitted after a proper foundation has been laid, the jury must be instructed to view it with caution. (Cf. State v. Taylor, supra, 395 A.2d 505, 507.) I do not believe that the scientific validity of dog-tracking evidence has been demonstrated even as well as voiceprinters; exercise of restraint is therefore warranted. (See People v. Kelly (1976) 17 Cal.3d 24, 32 [130 Cal.Rptr. 144, 549 P.2d 1240].) I am concerned with the matter of undue weight as evidence gleaned from the efforts of dogs has been part of our folklore for centuries.
It comes down to this: Appellant has been convicted on the basis of a dog's ability to scent
The judgment should be reversed and the case dismissed because the prosecution did not sustain its burden of proof, as a matter of law. At the least, the error in instructions requires a reversal because it was prejudicial.
Appellant's petition for a hearing by the Supreme Court was denied March 23, 1983. Bird, C.J., and Grodin, J., were of the opinion that the petition should be granted.
Illinois: People v. Pfanschmidt (1914) 262 Ill. 411 [104 N.E. 804] (bloodhounds held to be unreliable).
Indiana: Ruse v. State (1917) 186 Ind. 237 [115 N.E. 778] (evidence too uncertain).
Iowa: State v. Grba (1923) 196 Iowa 241 [194 N.W. 250] (evidence weak and uncertain).
Montana: State v. Storm (1951) 125 Mont. 346 [238 P.2d 1161] (evidence incompetent).
Nebraska: Brott v. State (1903) 70 Neb. 395 [97 N.W. 593] (evidence unsafe).
New York: People v. Centolella (1969) 61 Misc.2d 726 [305 N.Y.S.2d 279.]
Minnesota declined to pass upon the question of admissibility but held that in Crosby v. Moriarty (1921) 148 Minn. 201 [181 N.W. 199], no proper foundation had been laid for the evidence.
See Annot., Evidence of Trailing by Dogs in Criminal Cases (1968) 18 A.L.R.3d 1221 et seq.
Alabama: Burks v. State (1941) 240 Ala. 587 [200 So. 418].
Arkansas: Rolen v. State (1936) 191 Ark. 1120 [89 S.W.2d 614].
Delaware: Cook v. State (Del.Sup. 1977) 374 A.2d 264.
Florida: Tomlinson v. State (1937) 129 Fla. 658 [176 So. 543].
Georgia: Mitchell v. State (1947) 202 Ga. 247 [42 S.E.2d 767].
Kansas: State v. Netherton (1931) 133 Kan. 685 [3 P.2d 495].
Kentucky: Daugherty v. Commonwealth (1943) 293 Ky. 147 [168 S.W.2d 564].
Louisiana: State v. Green (1946) 210 La. 157 [26 So.2d 487].
Mississippi: Hinton v. State (1936) 175 Miss. 308 [166 So. 762].
Missouri: State v. Fields (Mo. 1968) 434 S.W.2d 507.
New Hampshire: State v. Taylor (1978) 118 N.H. 855, [395 A.2d 505] (admissible where foundational elements met; jury must be instructed to view it with caution, etc.).
Ohio: State v. Dickerson (1907) 77 Ohio St. 34 [82 N.E. 969].
Oklahoma: Buck v. State (1943) 77 Okla. Crim. 17 [138 P.2d 115].
Pennsylvania: Commonwealth v. Hoffman (1913) 52 Pa.Super. 272.
South Carolina: State v. Brown (1916) 103 S.C. 437 [88 S.E. 21].
Tennessee: Copley v. State (1926) 153 Tenn. 189 [281 S.W. 460]; State v. Barger (Tenn.Crim. 1980) 612 S.W.2d 485.
Texas: Parker v. State (1904) 46 Tex.Crim 461 [80 S.W. 1008].
Vermont: State v. Bourassa (1979) 137 Vt. 62 [399 A.2d 507].
West Virginia: State v. McKinney (1921) 88 W.Va. 400 [106 S.E. 894].
While the dog may have remained man's best friend through the ages, I would like to think that the law has made some progress since the reign of Richard I of England from 1189-1199.