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North Carolina v. Hawley

Filed: October 20, 1981.

STATE OF NORTH CAROLINA
v.
ARTHUR HAWLEY, JR., JOHN DAVID LEE, JR., FRANKLIN EUGENE COOK



Appeal by defendants from Cornelius, Judge. Judgments entered 6 November 1980 in Superior Court, Harnett County. Heard in the Court of Appeals 24 September 1981.

Hedrick, Judge. Judges Hill and Whichard concur.

Hedrick

Defendants assign as error the court's failure to grant their timely motions for judgment as of nonsuit and for "judgment notwithstanding the verdict." In ruling upon a defendant's motion to dismiss or for judgment as in the case of nonsuit, the trial court is limited solely to the function of determining whether a reasonable inference of the defendant's guilt of the crime may be drawn from the evidence. State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979). The evidence in the present case was sufficient to enable the jury to draw a reasonable inference that the defendants were guilty of the offenses charged.

The State's evidence tended to show the following:

The home of Gary and Louise Williams had been broken into and rummaged through on the morning of 10 September 1980 at around 10:00 a.m. At 10:05 a.m., Louise Williams arrived at her house and observed that an air conditioning unit had been pushed out of a window in her house and that a pillow case containing her jewelry box, necklaces, and other items was outside and underneath the window of her house. Missing from the residence was a coin collection worth $700 to $1,000 and a class ring worth $200. Neither Gary nor Louise Williams had given anyone permission to enter their home or to take items therefrom. At about 10:00 that same morning, the Williams' neighbor, Richard Gore, spotted a white male with long hair looking around the corner of the Williams' home, and when Gore drove up to the Williams' house, he observed three long-haired white males flee from the Williams' yard into a corn field located behind the Williams' home. The three ran towards a trailer park located on Highway

82 known as Hamilton's Trailer Park, and Gore observed one of the three kick off a pair of flip flop shoes. Gore also observed that one of the three had on a yellow t-shirt, another had on a blue t-shirt, and another had on a red t-shirt. Office Donald McLamb arrived at the Williams' residence shortly after 10:00 a.m. and requested a bloodhound. At some time between 11:15 and 11:30 that morning, Mr. Wallance Allen arrived at the Williams' home and brought with him a bloodhound named Murf. Mr. Allen is an employee with the Department of Correction and his duties include the training and running of bloodhounds; Murf is a cross between a bloodhound and a black and tan coon hound with a 90% success rate in tracking humans. Officer McLamb and Mr. Allen found two pairs of flip flop shoes lying in the Williams' backyard. Murf, after smelling the flip flops and smelling around the Williams' residence, then led Officer McLamb and Mr. Allen through the corn field behind the Williams' house, through some woods and fields, and eventually to a vacant trailer in Hamilton's Trailer Park. Two sets of barefoot tracks and a set made by someone wearing tennis shoes were observed on the route along which the bloodhound led his handlers. In addition, Officer McLamb and Mr. Allen found a sock along the trail, and Gary Williams later identified the sock as one of a pair he had in his dresser drawer. After searching the vacant trailer to which Murf led him, Officer McLamb proceeded to another trailer 40 to 50 feet away. Betty Lou Hair, a resident of the trailer park, heard dogs barking at around 10:30 that morning and observed two white, long-haired males running through the trailer park and enter a trailer after someone opened the door and yelled for them to come in. When Officer McLamb approached the second trailer, he had been informed of what Ms. Hair had seen. Officer McLamb knocked on the trailer door and when a young woman answered, McLamb advised her that he was looking for two individuals in reference to a break-in and that he had information that they were in the trailer; Officer McLamb did not gain admission into the trailer. While Officer McLamb was engaged in conversation with a sheriff outside the second trailer, defendants Hawley and Cook came out. Officer McLamb then went back to the trailer and advised the young woman that he was looking for a third person; again he was not granted permission to enter. As Officer McLamb was leaving, the third defendant, Lee, emerged from the trailer. Defendants Cook and Hawley were barefooted and had scratches

around their ankles, and defendant Cook had on tennis shoes. Defendant Hawley had on a red t-shirt and defendant Cook had on a blue t-shirt. Later, defendant Cook stated to two investigating officers that he entered the Williams' house because he needed money.

The defendants offered no evidence.

The circumstantial evidence presented, considered in the light most favorable to the State, was sufficiently substantial to support a reasonable inference of defendants' guilt and hence to withstand defendants' motions to dismiss. This assignment of error is therefore overruled.

Defendants also assign as error the court's admission into evidence of testimony offered by the State pertaining to the use of a bloodhound to investigate the crime. Defendants argue that the State did not provide a proper foundation for the bloodhound's reliability and that admission of the State's testimony about the bloodhound was prejudicial error.

Evidence about the trailing of a suspect by a properly trained bloodhound is admissible, but there must first be a preliminary showing (1) that the bloodhound is of pure blood and of a stock characterized by acuteness of scent and power of discrimination, or if his family tree is not pure, that the bloodhound has pedigreed himself by past performance; (2) that the bloodhound has been accustomed and trained to pursue the human track; (3) that the bloodhound has been found by experience reliable in such pursuit; and (4) that in the particular case the bloodhound was put on the trail of the guilty party, which was pursued and followed under such circumstances and in such a way as to afford substantial assurance, or permit a reasonable inference of identification. State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965); 1 Stansbury's N.C. Evidence § 87 (Brandis rev. 1973).

The trial judge has the duty of determining any preliminary questions of fact upon which the admissibility of evidence depends. State v. Whitener, 191 N.C. 659, 132 S.E. 603 (1926); 1 Stansbury's N.C. Evidence § 8 (Brandis rev. 1973). A trial court's findings of face are conclusive if supported by any competent evidence even if there is evidence to the contrary that would support different findings, State v. Saults, 299 N.C. 319, 261 S.E.2d

839 (1980). Hence, the finding of a trial judge upon a preliminary question of fact upon which the admissibility of evidence depends is not subject to reversal on appeal if it is fairly supported by the evidence. Gila Valley, Globe, & Northern Railway Co. v. Hall, 232 U.S. 94, 58 L. Ed. 521, 34 S. Ct. 229 (1913).

In the present case, the trial judge properly conducted a voir dire examination to determine whether the bloodhound had sufficient "expertise." At the end of the hearing, the judge made extensive findings of fact consistent with the State's abundant evidence that Murf the bloodhound was sufficiently expert. At any rate, defendants' assignment of error purports to be based on "Defendant Hawley's Exception No. 2," "Defendant Lee's Exception No. 2," and "Defendant Cook's Exception No. 1." Those exceptions challenge only the court's conclusion of law that the bloodhound evidence was admissible. Such a challenge, therefore, does not address the validity of the court's findings of fact but is limited to whether the court's conclusions of law are supported by its findings of fact. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902 ...


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