STATE OF SOUTH CAROLINA

In the Supreme Court

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Appeal from Richland County
Honorable James R. Barber, III, Circuit Court Judge

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State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct.App. 2007)

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THE STATE, Respondent,

vs.

GARY A. WHITE, Petitioner.

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BRIEF OF RESPONDENT

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INDEX

TABLE OF AUTHORITIES................................................................................................................................... ii

ISSUES PRESENTED.......................................................................................................................................... 1

STATEMENT OF THE CASE.............................................................................................................................. 2

ARGUMENT

I.  The trial court recognized that the officer’s tracking dog testimony was based upon specialized training, experience, and observation of the working scent dog.  The testimony about the dog’s scenting and seeing the defendant was not about the methods and procedures of science..................................................................................................................................................................... 3

II.  Witness Morris’ recantation was soundly excluded from the appellate record, and the defendant’s claim that the recantation entitles him to a new trial wants substance........................................................................ 8

CONCLUSION...................................................................................................................................................... 9

TABLE OF AUTHORITIES

Cases:

Brooks v. People, 975 P.2d 1105 (Colo. 1999)................................................................................................. 7

Debruler v. Commonwealth, 231 S.W.3d 752 (Ky. 2007)................................................................................. 7

Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).................................................... 6

State v. Brown, 103 S.C. 437, 88 S.E. 21 (1916)............................................................................................... 7

State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989)...................................................................................... 7

State v. Council,  335 S.C. 1, 515 S.E.2d 508 (1999)........................................................................................ 6

State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990)......................................................................................... 6

State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991) .................................................................................. 6

State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct.App. 2007)......................................................................... 8

Other Authorities:

42 Hastings L. J. 15 (1990)................................................................................................................................... 6

Rule 29, SCRCrimP............................................................................................................................................... 8

Rule 403, SCRE ..................................................................................................................................................... 7

Rule 702, SCRE.................................................................................................................................................. 6, 7

ISSUES PRESENTED

1. The trial court did not require the state to demonstrate the scientific reliability of the tracking dog testimony, and there was no error.

2. The South Carolina Court of Appeals did not include the post-trial statement of witness Morris in the appellate record, and there was no error.  If the statement is ever presented to the circuit court, it would not reasonably warrant a new trial.

STATEMENT OF THE CASE

Indictments 04-GS-40-3016, 04-GS-40-3017, and 04-GS-40-3018 charged the defendant with kidnaping and two counts of armed robbery at a Circle K store in Richland County on April 19, 2004.  The defendant and his counsel came to trial June 14, 2005 before the Honorable James R. Barber, Judge, and a jury.  The jury found the defendant guilty.  The state had served notice to seek a sentence of life without parole, and the court sentenced the defendant to concurrent terms of life without parole.  The defendant served opposing counsel a timely notice of appeal.  July 15, 2005 witness Anthony Morris made a written statement.  October 19, 2005 the defendant made Motion to Remand for a New Trial, or, in the Alternative, for a Hearing into New Evidence, and the South Carolina Court of Appeals denied the motion.  The appellate court affirmed the judgment of the trial court.  State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct.App. 2007).  By Order dated November 19, 2007 the Supreme Court of South Carolina granted discretionary review of the decision.

ARGUMENTI.         The trial court recognized that the officer’s tracking dog testimony was based upon specialized training, experience, and observation of the working scent dog.  The testimony about the dog’s scenting and seeing the defendant was not about the methods and procedures of science.

Summary Facts

In the early hours of April 19 two robbers confronted the clerk (Gwen) in the Circle K.  The taller held a gun to her head.  The other took property from her purse, register and store.  Meanwhile, the taller robber with the gun appeared either to pass out or to sleep for a few seconds.  The robber with the loot left.  The taller robber with the gun held Gwen and pushed her out the door.  Coincidentally, a police officer (Rouppasong) drove in, Gwen signaled him, and the officer give chase.  (R. pp. 80-100).

Officer Rouppasong arrived at the Circle K for refreshment and observed a store employee (Gwen) signaling him and the defendant running.  The defendant first ran to a Civic parked around the store and then fled.  Rouppasong arrested the driver of the Civic (Roy Wiggins) and called dispatch.  Officer Gunter brought the K9 unit.  Rouppasong showed Gunter where the defendant ran from the Civic.  Gunter put the dog there and began tracking.  The dog found an area with a lot of scent.  Rouppasong saw the defendant, apparently sleeping with a pistol in his hand, lying under a bush before either the dog or Gunter.  The dog alerted by both barking and trying to get to the suspect [defendant].  Gunter thought the search area was ideal, and the time lapse of about thirty minutes was good. (R. pp. 150-155; pp. 160-179; pp. 227-235; p. 237 - p. 238, line 3).

Roy Wiggins (Wiggins) knew Anthony “Amp” Morris (Morris) for years and met the defendant the evening of the armed robbery.  When Wiggins drove his mother’s Civic to a club, he learned the defendant had a gun.  Later, the defendant instigated the Circle K armed robbery.  The defendant went to the store with his gun and a ski mask but left his driver’s license and other articles in the passenger seat.  Morris accompanied the defendant.  Wiggins stayed in the Civic.  When the police came, Morris was the first back to the car.  Seconds later, the defendant returned.  Morris and the defendant fled when Wiggins refused to help with any escape.  (R. pp. 306-325; pp. 339-340; p. 352).  Later, in jail, Wiggins thought the defendant “looked pretty messed up . . . They had to carry him in, so it wasn’t like he was walking on his own.”  (R. pp. 350-351).

Anthony Morris (Morris) acknowledged volunteering to go into the store with the defendant.  (R. pp. 382-383).  Wiggins got clothes for him (Morris) to wear (e.g., shirt to cover tattoo).  (R. pp. 384-385).  The defendant is taller than Morris, and the defendant had the only gun.  (R. pp. 388-389; p. 405).  Morris successfully fled but was arrested about a month after the robbery.  (R. pp. 395 and 397).  At trial he had pled guilty to two counts armed robbery and one count kidnaping and was awaiting sentencing. (R. pp. 399-400).

How the Issue was Raised at Trial

The state wanted to show that a tracking dog followed the scent that led to the suspect.  (R. p. 201, lines 10-12).  The defendant objected on the ground that dog tracking evidence was not scientifically reliable and did not meet the standard for scientific evidence.   The court found that expert testimony did not have to be scientific or technical.  Rather, it might involve specialized knowledge.  (R. p. 191, line 25 - p. 193, line 9).

The state offered Gunter, an assistant trainer and a senior master K9 handler - the highest level of dog handler with his national association.  Aurie was a German Shepherd from a known bloodline of working dogs, a human scent dog and reliable.  Together they had followed some seven hundred fifty tracks, and Gunter had been qualified as an expert witness one time before.  (R. pp. 194-198; p. 212).  To track a suspect, they typically used the last point where a suspect was seen, and the dog stayed on that one scent until he found a suspect.  When the dog finds the suspect or the person he is tracking, the dog will alert.  Officer Gunter allowed that it is possible for a dog - and everybody else - to make a mistake.  (R. p. 199, line 8 - p. 200, line 16).   The court found the officer was qualified as an expert in the field of canine tracking and charged the jury that he could offer opinions in his area of expertise.  However, as with the testimony of any witness, the weight and credibility of his testimony was for the jury’s determination.  (Tr. p. 201, lines 19-22; p. 218 - p. 219, line 11).

The defendant feels that the trial court erred in admitting the testimony of an officer working with a scent dog since the court did not compel the state to demonstrate its scientific reliability.  (Brief of Petitioner Issues Presented 1 and pp. 6 and 8).

Law and Discussion

The defendant cites an article critical of dog scent lineups.  In a dog scent lineup, a dog sniffs the scent of something connected with a crime and then sniffs a lineup of people or an object with the scent of a suspect; an alert is admitted to prove that the identified person committed the crime.  One complaint is that courts admit evidence from dog scent lineups but apply foundation required for tracking dogs to the, arguably, different circumstances of the dog scent lineup.  After observing that the Supreme Court of the United States contributes to other courts’ considering a dog’s alert to narcotics inherently reliable, the article believes, not surprisingly, that “neither the alleged failure of dogs in scent lineup cases nor the weaknesses in the courts’ analyses necessarily require wholesale rejection of scent lineup evidence.”  42 Hastings L. J. 15 (1990). 

The present case is not a dog scent lineup.  The Court’s respect for the scent dog’s work is unabated.  Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)(dog’s vehicle sniff during traffic stop infringes no constitutional right, and alert supports probable cause for search).

Rule 702, SCRE requires the court to find that scientific evidence “will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable.”  State v. Council,  335 S.C. 1, 515 S.E.2d 508 (1999)(addressing mitochondrial DNA).  Admissibility of scientific testimony depends upon “the degree that the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom.”  State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990).  DNA fingerprinting is an example of scientific evidence.  In finding that DNA fingerprinting is recognized and reliable and generally accepted in the scientific community, this Court found that the “experts did not rely on untested methods, unproven hypotheses, intuition or revelation, but rather applied scientifically and professionally established techniques to the solution of a particular problem.”  Id.

Scent dog tracking testimony is about the dog handler’s investigation through observation of a trained tracking dog following a scent.  State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991) (“Testimony of a dog handler based upon his observation of a tracking dog may be properly admitted into evidence.”)(emphasis added); State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989)(in determining the sufficiency of the foundation for expert witness in bloodhound handling “to testify about his work with the bloodhounds during the investigation” the handler’s experience and the scent dog’s ability and reliability could be considered in determining the sufficiency of the foundation)(emphasis added).  The dog handler’s testimony is the result of an investigative technique rather than a scientific procedure.  “[T]he practice of using trained dogs to track a human scent lacks the hallmark of scientific knowledge identified by the Supreme Court, i.e., ‘a grounding in the methods and procedures of science.’ . . . [C]anine scent tracking is not a technique amenable to peer review or scientific standards and testing.  Rather, it concerns the behaviors of the dog and the meanings of those behaviors, a knowledge acquired through experience and training.”  Debruler v. Commonwealth, 231 S.W.3d 752 (Ky. 2007).  Accord, State v. Brown, 103 S.C. 437, 88 S.E. 21 (1916)(dog’s instinct must be free and untrammeled; the handler, not the dog, is the witness)(emphasis added); Brooks v. People, 975 P.2d 1105 (Colo. 1999)(dog scent tracking evidence is not subject to scientific validation factors, and conventional Rule 702 and Rule 403 analysis is appropriate).

The trial court did not err in declining to require the state to demonstrate the scientific reliability of scent dog, tracking testimony.

II. Witness Morris’ recantation was soundly excluded from the appellate record, and the defendant’s claim that the recantation entitles him to a new trial wants substance.            The Supplemental Appendix contains Anthony Morris’ July 15, 2005 statement.  In substance Morris says that he was not at the scene and wants knowledge of the crime.  Purportedly on the advice of counsel, he testified at trial to get a light sentence after pleading guilty to two counts armed robbery and one count kidnaping.  (Supplemental Appendix p. 5; R. pp. 399-400).

The defendant (White) feels that the statement exonerates him.  (Supplemental Appendix p. 3; Brief of Petitioner p. 11).  Since Morris’ July 15 statement claims to exonerate himself (Morris) in that he was not at the scene and wants knowledge of the crime, it is difficult to understand how the statement exonerates Gary White:  Roy Wiggins testified that Gary White instigated the Circle K armed robbery and went to the store with the gun.  Officer Rouppasong found Gary White holding the gun, apparently sleeping under a bush about thirty minutes after the armed robbery, and testified he was the man who fled the Circle K.  (Please see Summary Facts, Argument I, supra.).

The Court of Appeals excluded the statement from the record on appeal since it had not been ruled upon in the circuit court.  The Court of Appeals exercised sound discretion in declining to remand the case for a hearing in the circuit court since that would have required the court, on its own motion, to suspend the appeal.  Rule 29, SCRCrimP.  State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct.App. 2007).  The defendant’s claim that the statement warrants a new trial wants substance.

CONCLUSION

The judgment of the trial court should be affirmed.

April 17, 2008

STATE OF SOUTH CAROLINA

In the Supreme Court

__________

Appeal from Richland County
Honorable James R. Barber, III, Circuit Court Judge

__________

State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct.App. 2007)

____________

THE STATE, Respondent,

vs.

GARY A. WHITE, Petitioner.

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PROOF OF SERVICE

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I, Harold M. Coombs, Jr., certify that I have served the Brief of Respondent by deposit­ing three copies of the same in the United States mail, postage prepaid, addressed to his attorney of record, LaNelle C. DuRant, Esquire, South Carolina Commission on Indigent Defense, Division of Appellate Defense, Post Office Box 11589, Columbia, South Carolina 29211.

I further certify that all parties required by Rule to be served have been served.

April 17, 2008

The Honorable Daniel E. Shearouse
Clerk, South Carolina Supreme Court  
Post Office Box 11330
Columbia, South Carolina 29211

                                                                        RE:      State v. Gary A. White

Dear Mr. Shearouse:

Enclosed please find the original and fourteen (14) copies of the Brief of Respondent in the above-referenced case.

kws
Enclosures
cc: LaNelle C. DuRant, Esquire
Ms. Trisha Allen