People v. MitchellPeople v. Mitchell
Opinion
Jеffrey Mitchell and Robert Rogers appeal from judgments entered following a joint trial in which they were convicted of first degree murder and found to have personally used firearms. It was further found that the crime was committed for the benefit of a street gang. In the published portion of this opinion, we conclude
FACTUAL BACKGROUND
1. The Crime and the Investigation
Defendants are members of the Underground Crips (UG Crips) gang. The intersection of 106th Street and Budlong Avenue in Los Angeles County is in the territory of the adjacent rival, Hoovers gang. Around 10 a.m. on August 20, 1999, 19-year-old Jose Lazaro was in his mother’s house at the intersection of 106th and Budlong when he heard loud noises that sounded like firecrackers. After a pause, he heard two more similar sounds, and then about five more bangs which sounded more like gunshots. Lazaro looked through the black metal front screen door to investigate the sounds. For three or four seconds he was able to see two men, whom he later identified as defendants, on the sidewalk directly in front of the house. They were walking very quickly. As they walked, men later identified as Mitchell and Rogers bumped into each other. Mitchell was in front holding a gun. Lazaro testified that he was able to get a view of the right profile of both men and also a “partial look at the front of [Mitchell’s] face when he turned around.”
When Mitchell and Rogers proceeded a bit farther up the street, Lazaro went outside and saw the body of Peter Drake lying faceup in the intersection. Lazaro recognized Drake as a member of the Hoovers gang, which frequently congregated in a nearby parking lot. Lazaro went back inside and called 911 to report the shooting.
Paramedics and police officers soon arrived. Drake was declared dead at the scene. Lazaro did not go back outside to talk to thе officers because he did not want to be recognized by neighbors. Instead, he again called 911 and gave descriptions of both assailants. In this call, Lazaro described the man with the gun (Mitchell) as African-American, 16 to 23 years old, about 5 feet 8 inches tall, with a “fade” haircut, and wearing a white shirt, black shorts, and black shoes with a white Nike insignia. Rogers was described as a bit taller and heavier, with slicked-back hair, and wearing white shoes with a black Nike insignia. Later that day, Lazaro worked with a police artist, who made a drawing of Mitchell that depicted what Lazaro described as the assailant’s prominent cheekbones and Adam’s apple. Lazaro had been in the Los Angeles County Sheriff’s Department Explorer Program for two and one-half years and had been trained to notice such details. He testified that he has glasses with a correction for distance that he uses sometimes for driving at night but that he does not use them at any other time. He was not wearing the glasses when he saw the two assailants walk by.
Officers at the scene of the shooting located five bullet casings from a .25-caliber semiautomatic weapon near Drake’s body. An autopsy revealed that Drake had sustained multiple gunshot wounds, with fatal or potentially fatal bullets lodged in his brain, neck, lung, and chest. Eight bullets were recovered, four of which were .25-caliber and had been fired from a semiautomatic gun. The other four bullets were .22-caliber and most likely had been fired from a revolver inasmuch as no casings of that caliber bullet were found at the scene.
Following the interview with Hartfield, officers put together three six-pack photographic arrays, which were shown to Lazaro on August 24. The target photographs in the arrays were of Rogers, Mitchell, and UG Crips member Ray Owens, respectively. The photograph of Rogers displayed only his head; it had been enlarged so that the plaid shirt he was wearing would not be seen. The photograph of Mitchell, who had turned 16 the week before the murder, had been taken in 1997. Lazaro did not make any identification from the array that had the photograph of Rogers. Viewing the next array, Lazaro stated that Mitchell “looks like” the person with the gun. He also told officers that another person in the array had the hair and cheekbones that resembled the person with the gun although he was not one of the perpetrators. Looking at the third array, Lazaro stated that the photograph оf Owens also resembled the person with the gun but was not that person.
On September 10, 1999, Mitchell was arrested on an unrelated charge and a search warrant was executed at his home. Among other items, officers found four Winchester .25-caliber semiautomatic bullets (two of the .25-caliber casings found at the murder scene were Winchester brand) and a sheet of paper with writing that appeared to be lyrics of a rap song. The lyrics included the phrases: “ ‘Caught off brand slipping’ ” and “ ‘Put two in his brain.’ ” (The gang expert explained that “off brand” referred to a rival gang member.)
On September 11, Mitchell gave a statement to the police. Although he acknowledged his membership in the UG Crips gang and his gang’s rivalry with the Hoovers, he disclaimed any knowledge of the murder. He also denied having been at the intersection of 106th and Budlong, a place he regarded as enemy territory. When asked where he had been at the time, Mitchell said he may have been in school or at the graduation of a fellow gang member. Mitchell further stated that the rap lyrics had been written shortly aftеr his release from camp community placement on July 6, 1999, and had nothing to do with the Drake murder the following August 20.
Meanwhile, officers assembled front and profile photographs of 12 individuals, including Mitchell and Rogers (Rogers was photographed upon being detained in a gang sweep), all wearing identical white T-shirts and standing against the same background. Ray Owens was not included in the group of 12 because officers had been unable to detain him. Other than Mitchell and Rogers, none of the subjects included in the three six-packs previously shown to Lazaro were included in the new set of photographs.
Rogers was arrested on September 12, 1999, also on unrelated charges. He denied any involvement in or knowledge of the murder. He later stated that on the morning of the murder a Hoovers gang member shot at him from a car and that he had told his fellow UG Crips gang members about the shooting. Rogers also stated that he knew there had been “walk-up shooting” on August 20 and that the “correct Hoover” had been killed. Rogers further admitted that he had gone to Roderick Hyatt’s house on the day of the murder. When an officer said that it was unlikely that anyone could go into rival gang territory on foot, Rogers replied, “ ‘That’s exactly what they did. They walked over and they ran back.’ ” At one point during the interview, Rogers commented that “ ‘[p]eople get murdered around here all the time’ ” and added, “ ‘Why are you all doing this to me? Why me? Why this murder? Why do you have to solve this one?’ ”
On December 1, 1999, Lazara attended live lineups that included Mitchell and Rogers. He identified both. A detective who attended the lineups testified that afterward Lazara “came up to me, said ‘You should have done this the first time.’ He said it was easy to make the identification^]. That he was absolutely sure these were the suspects” and that Mitchell was the one with the gun. Lazara reiterated his identifications at trial.
Finally, the prosecution placed into evidencе Mitchell’s “juvenile hall entrance record” that had been created upon his arrest on September 10, 1999. The record indicated the existence of one gang tattoo on each arm. The prosecution also introduced a photograph of Mitchell taken on February 5, 2001, during the course of trial, which showed an additional tattoo, of the initials “HK,” on one of Mitchell’s arms. The gang expert testified that the letters stood for Hoover killer.
2. Scent Identification Lineup Evidence
The prosecution also introduced evidence that Mitchell’s scent had been identified in a lineup as being present on the expended shell casings found at the scene. The evidence was presented through the testimony of Joe D’Allura and Edward Hamm, civilian canine handlers who volunteer for, among other organizations, the Los Angeles County Sheriff’s Department and the California Rescue Dog Association (CARDA). D’Allura handles Reilly, a nine-year-old Labrador retriever that performed the scent identification lineup in this case. Hamm handles bloodhounds. Hamm’s dogs were not used in this case, but he assisted D’Allura and Reilly in the scent lineup in which Mitchell’s scent was identified.
D’Allura is a trainer of “article dogs, cadaver dogs, and scent discrimination dogs.” Scent discrimination as performed by Reilly is to be distinguished from trailing scents or tracking, which is typically done by bloodhounds. Hamm, D’Allura, and their dogs often work as partners in the field, with Hamm’s bloodhound following the scent trail of a person and Reilly following behind, seeking items of evidence.
D’Allura has worked with Reilly since Reilly was a puppy and has been Reilly’s only handler. Reilly was first trained in search and rescue operations
to find people who are lost or hiding. After hundreds of hours of training and passing a test in which he found two people within
In 1997, Reilly began to work in the area of scent discrimination. This involves Reilly sniffing the scent collected from an object a person is known to have touched and determining whether a second object has been touched by the same individual. The scents Reilly sniffs have been collected by a small vacuum-cleaner-like device known as a “scent transfer unit.” The scent transfer unit, which was described by Hamm as “essentially a modified dust buster,” was developed in 1994 by a bloodhound handler associated with the Niagara County Sheriff’s Department in New York. It extracts scents from an object and transfers the scents to a sterile gauze pad, thus avoiding possible damage to the object from which the scent has been taken.
In training operations, the scent transfer unit is used to prepare five or six sterile pads. Two of the pаds contain the scent of a target person and three or four pads contain the scent of others. When D’Allura and Reilly are out of the room, one of the pads that has the scent of the target person and the three or four pads that have the scent of others are put on the floor. D’Allura and Reilly then enter the room. Reilly initially sniffs the other pad that has the scent of the target person. After Reilly has sniffed this pad, D’Allura has Reilly walk by the pads lined up on the floor and sniff them. If Reilly perceives a match between the scent on the pad he was initially given to sniff and one of the pads lined up on the floor, he alerts D’Allura by stopping and barking. If Reilly selects the pad with the scent of the target person, Reilly is given a reward. In lineups involving actual suspects the protocol is the same, except that only one pad is known to contain the scent of the suspect, and Reilly’s task is to determine if scent on that pad matches scent on a pad taken from an object the suspect might have touched.
Reilly was trained in scent discrimination for several hundred hours and in 1999 was “certified in this area as well.” To keep his certification, Reilly continues to train and perform scent lineups on a weekly basis. As of the date of D’Allura’s testimony, Reilly had performed over 200 training lineups and over 100 lineups involving actual suspects. Since his certification, Reilly had
not made a mistake in any training lineup, and there has been no indication that Reilly had made any mistakes in an actual lineup. Training lineups in which Reilly participated included one where a person handled a soda bottle and a gas can that were put in a car that was doused with gasoline, set on fire, and allowed to bum for 20 minutes. When the fire was extinguished, scents were extracted from the objects, which had then “melted into blobs.” Reilly was able to identify a person who had touched the objects before the fire in a scent pad lineup. In another training exercise, Reilly matched the scent of a person with the scent of coins the person had carried in his pocket for a day. The lineup was conducted after the coins hаd been heated in an autoclave, which is a device used for sterilizing surgical instruments. In both training and actual
D’Allura, who has no background or education in science, explained it was his understanding that the scent detected by dogs comes from microscopic skin cells, known as scruff. According to D’Allura, human “[s]cent is like a fingerprint, basically. Everybody has their own scent about them.” Scent will remain on an object for two to four months after it has been touched. (With tracking or trailing, which is typically done by a bloodhound, the dog’s main focus is to follow the scent of skin cells that are in the air or have fallen to the ground. This type of scent is more susceptible to dissipation from weather and the passage of time.)
In the case at bench, Hamm used the scent transfer unit to collect scents from the murder shell casings, which had been kept in an envelope, as well as from the victim’s shirt. (The prosecution theorized that Mitchell had turned the victim over after he was already on the ground.) Scents were also collected from shirts Mitchell and Rogers had worn, and additional scents were collected from shirts worn by other UG Crips members. Hamm also made three control pads with scents extracted from the chairs of three detectives in the sheriff’s homicide bureau who had not worked on the case. The protocol employed in each instance of scent collection was that Hamm, wearing surgical gloves, would insert a sterile gauze pad in the scent transfer unit, turn the unit on, place the unit for about one minute over the object from which scent was to be extracted, turn the unit off, and remove the gauze pad, placing it into a “Ziploc bag.” Hamm then would clean all contact surfaces of the scent transfer unit with alcohol and run it briefly to dry the alcohol.
On September 24, 1999, D’Allura and Reilly participated in nine lineups that had been set up by Hamm. In the first lineup, Reilly was given a pad to sniff that had scent extracted from the shell casings and matched it in the lineup to the pad that contained scent collected from Mitchell’s shirt. In another lineup, Reilly was given a pad to sniff that had scent collected from Drake’s shirt and matched it in the lineup with Mitchell’s pad. Scent taken from Mitchell was not involved in any of the remaining seven lineups. Reilly did not alert during these lineups, which included scent taken from Rogers, that any matches had been found.
3. Defense
Neither defendant testified. In Mitchell’s defense, UG Crips member Lynn Woods denied having had a conversation with defendants in which they admitted the shooting. An eyewitness identification expert testified on factors affecting cross-racial identification (Lazaro is Hispanic, defendants are African-American). The expert was of the opinion that the identifications in this case were also affected by Lazaro’s limited opportunity to see the perpetrators and that the lineup procedure in which Lazaro was repeatedly exposed to Mitchell’s photographs was unfair.
Rogers presented an alibi defense. Marcus Ward and Laquandra West testified that Ward, who was Rogers’s best friend, graduated from an alternative high school on the day of the murder. Between 9:00 and 9:30 that morning, Ward drove Rogers to West’s house to see if she was coming to the graduation and then drove Rogers to Ward’s house so that Rogers could take a shower and get dressed. Thereafter, the two left Ward’s house, arriving
In rebuttal, a detective testified that Ward told him that Rogers first arrived at Ward’s house between 10:00 and 11:00 a.m. on the day of the murder. Ward’s mother told another detective that Ward was at home throughout that morning, first leaving the house to go to the Sizzler. Ward’s mother also said that she had received a telephone call from West that morning. In the call, West acted hysterically and stated that Rogers was trying to get her to cover up something.
DISCUSSION
1. Scent Identification Lineup Evidence
Before trial, Mitchell moved under Evidence Code section 402 to exclude evidence of the scent identification lineup on grounds that an adequate foundation could not be established for either scent identification lineup evidence in general or use of the scent transfer unit in particular. Hamm and D’Allura testified at a hearing on the motion. That testimony, which has been summarized above, presaged their testimony at trial. The trial court denied Mitchell’s motion, finding that analysis under the Kelly-Frye rule 1 did not apply to the challenged evidence and that a sufficient foundation had been established under existing case law. We conclude that this ruling was in error.
a. Relevant Legal Principles
“In
People v. Kelly[, supra,]
“Kelly
is applicable only to ‘new scientific techniques.’ [Citations.]”
(People
v.
Leahy
(1994)
As explained in
People v. McDonald
(1984)
Thus,
Kelly
analysis is limited to situations where it will “forestall the jury’s uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate. [Citation.] In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them. [Citations.]”
(People
v.
Venegas
(1998)
Finally, regardless of whether evidence is deemed “scientific,” it will not be admitted unless it is relevant. In
Daubert
v.
Merrell Dow Pharmaceuticals, Inc., supra,
In California evidence is relevant only if it has “any tendency in reason to prove or disprove any disputed fact” (Evid. Code, § 210). And an expert’s testimony must be based on matter “that is of a type that reasonably may be relied upon by an expert” (id., § 801, subd. (b)). (See People v. Leahy, supra, 8 Cal.4th at pp. 597-598.)
i. California Case Law
There is no California case that involves a scent identification lineup. There are three that involve tracking or trailing by scent, and the trial court in this case applied those opinions by analogy to the scent identification lineup here.
2
In the first,
People v. Craig
(1978)
The
Craig
court held this evidence of canine tracking was admissible and not subject to
Kelly.
It observed that “[i]n the area of new scientific techniques, especially dealing with electronic gadgetry, one piece of testing apparatus is essentially the same as another of similar design, make and purpose. [][] When dealing with animate objects, however, we must assume each and every unit is an individual and is different from all others .... [f] Therefore, rather than attempt to identify certain specific criteria as being indicative of the ability of dogs, in general, to trail a human, we choose to require each particular dog’s ability and reliability to be shown on a case-by-case basis. We are not merely assuming a well-trained dog can trail a human; we say that this ability is a fact which, like other facts, may be proven by expert testimony. [][] This testimony should come from a person sufficiently acquainted with the dog, his training, ability and past record of
reliability. If the testimony comes from an expert in the area of training, trailing, and operational performance of such dogs, that expert is qualified to state an opinion as to the ability of that particular dog in question to trail a human. We feel
People v. Kelly, supra,
and
People
v.
King
(1968)
In
People v. Malgren
(1983)
Citing an American Law Reports Annotation titled Evidence of Trailing by Dogs in Criminal Cases, which noted that such evidence was admissible in a majority of jurisdictions (Annot. (1968)
Finally, in
People v. Gonzales
(1990)
ii. Case Law of Other Jurisdictions
There is only a limited number of federal and out-of-state decisions that discuss scent identification lineups. As of 1988, there were seven, four of which involved the same dog and handler. (Annot., Criminal Law: Dog Scent Discrimination Lineups (1988)
In
State
v.
Roscoe
(1985)
In
Winston
v.
State
(Tex.App. 2002)
Addressing the contention that the foregoing evidence should not have been admitted, the court applied the test of “whether the field of expertise is a legitimate one.”
(Winston v. State, supra, 78
S.W.3d at p. 526.) The court found thаt it was, stating that “[t]he ability of certain breeds of dogs, especially bloodhounds, to distinguish humans by scent is well-documented. [Citations.] Further, these dogs’ superior senses have long been used to aid mankind in a variety of contexts outside the courtroom, including ‘to track by scent escaped criminals or lost persons and articles.’ [Citations.]”
(Ibid.)
After noting
b. Analysis
i. Scent Transfer Unit
We first address Mitchell’s argument that regardless of whether scent identification lineups are themselves subject to Kelly, the scent transfer unit used in the preparation of the gauze pads employed in the scent lineup is a novel device within the meaning of Kelly. (See People v. McDonald, supra, 37 Cal.3d at p. 372.) The contention has merit.
Use of the scent transfer unit has not been discussed in a published opinion in California or any other jurisdiction. Citing
People
v.
Bury
(1996)
In
People v. Bury, supra,
In
People v. Nolan, supra,
Also pertinent to
Unlike a colposcope, the scent transfer unit is a device that does not have a history of use in the field of law enforcement or in any other arena. And unlike the Alco-Sensor machine and the ADX Abbott Bench Analyzer, which were themselves new devices, the scent transfer unit is not being put to a well-established use such as measuring blood-alcohol level through breath or the presence of drugs in urine.
The Attorney General argues that the scent transfer unit “is simply based on the obvious principle that scent travels in air. There is no novel scientific principle behind the use of suction to move air and the scent contained in it; it is the same principle at work in air filters in every home.” The argument begs the question. The technique of establishing a person’s identity in a canine scent lineup has not been subject to judicial scrutiny in this state. Our common knowledge that scent travels through air and that vacuum devices pick up particles does not make transferring scent with a “modified dust buster” any less novel.
And it is far from obvious that, assuming a vacuum device would transfer scent to a gauze pad under the protocol used in this case, that scent would not degrade or become contaminated. Indeed, Hamm testified that after scent had been collected, he would clean the contact surfaces of the scent transfer unit with alcohol and run the unit to let the alcohol dry. But, as we have notеd, Reilly’s training included being able to identify a person’s scent on objects that had been burned beyond recognition or sterilized in an autoclave. Hamm did not address the possibility that scent from an object that had been transferred to a gauze pad through the unit would remain in the unit after the cleaning process and would then be transferred to subsequent gauze pads on successive uses. As reported in The Baltimore Sun in an article regarding California bloodhounds brought to the East Coast to investigate the anthrax incidents of 2001, the Law Enforcement Bloodhound Association and the National Police Bloodhound Association have not endorsed the scent transfer unit, saying “it offers little advantage over using a gauze pad alone and in fact might confound matters.” (Shane, FBI’s Use of Bloodhounds in Anthrax Probe Disputed, The Baltimore Sun (Oct. 29, 2002) p. 1A.)
The scent transfer unit is a novel device used in furtherance of a new technique. (See
People v. Leahy, supra,
The parties do not dispute that under well established law dog tracking or trailing evidence does not involve a scientific technique within the meaning of
Kelly.
But the differences between this type of evidence and evidence derived from scent identification lineups require a dramatic revision of the final element of the
Malgren
test, that “the trail had not become stale or contaminated.”
(People
v.
Malgren, supra,
We find the approaches taken in jurisdictions that have uncritically accepted scent identification evidence to be too facile. It is no answer to say that “there is little distinction between a scent lineup and a situation where a dog is required to track”
(Winston v. State, supra,
Difficulty in understanding the precise nature and parameters of a dog’s ability to discriminate scents does not take this phenomenon out of the realm of science. The feats attributed to Reilly, both in training and in the scent lineup conducted in this case, are truly extraordinary. An object may have many scents. The scent on an object touched by a target person will include the scent of any other person who touched the object. Here, the prosecution asserted that at least two persons had touched the murder victim’s shirt (Mitchell and the victim himself), and it may be that more than one person touched the bullets that were fired at the scene. Thus, to make a match, Reilly was required to compare the scent of every person who had touched the shirt with not only the scent of every person who touched the bullets, but also the scent of every person who had touched the detectives’ chairs.
We do not suggest that Reilly’s feats are beyond belief. Canine ability to discriminate scent has a physiological, and therefore in its most fundamental sense, a scientific basis. “The dog’s nose maximizes the area available for exposure of chemical receptor cells to the air.... [f] The total number of olfactory cells varies with the dog’s size but in all breeds the number is far greater than in man. Thus, the German Sheep Dog has 220 million such cells compared to man’s five million. Laid out, these cells cover an area in the dog’s head that is about the size of the skin on his body, compared to humans, whose equivalent area of exposure of olfactory cells to air is the size of a postage stamp. Moreover, almost one-eighth of the canine brain is devoted to olfaction which the human olfactory lobes comprise a much smaller percentage of total brain size.” (Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup (1990) 42 Hastings L.J. 17, 43, fns. omitted.)
Nevertheless, we are concerned in this case with thе possibility that the scent of the shell casings found at the scene of the
We are also concerned about the absence of any evidence that every person has a scent so unique that it provides an accurate bаsis for a scent identification lineup. Neither D’Allura nor Hamm, who also has no background in science, is aware of any scientific data which supports the notion that each person has a unique scent. On appeal, no such data has been brought to our attention.
If each person’s scent is unique, it may be analogized to DNA. In contrast to the unsubstantiated claim of uniqueness here, the uniqueness of each person’s DNA as expressed by the statistical probability of a random match between two people was the subject of extensive litigation under
Kelly.
(See
People v. Axell
(1991)
We further note that none of the dogs identified by breed in any of the tracking, trailing or scent identification cases that we have encountered is, like Reilly, a Labrador retriever. There are two reasons why this appears pertinent. First, foundational requirements for qualification of tracking and trailing evidence often include the element that the dog be of a breed, stock or pedigree characterized by acute powers of scent and discrimination. (See Annot., supra,
Questions also come to mind regarding certification procedures for scent identification lineups. D’Allura testified that Reilly was certified by CARDA for search and rescue and searching for cadavers. Hamm, who is also affiliated with CARDA, testified that the bloodhounds he handles are utilized for tracking and trailing. We observe that CARDA, whose services are utilized by the California Office of Emergency Services (see Gov. Code, § 19844.5), has established requirements for certification in area searches, cadaver searches, and trailing, but not for scent identification. (CARDA Bylaws & Standards <http://www.carda.org/ppContents.aspx> [as of July 3, 2003].) D’Allura testified that Reilly had a sheriff’s department certification for article searches and in scent identification lineups. But the record is silent as to any requirements of the recent identification certification.
Given the lack of scientific evidence, we are left in the dark as to whether the scent identification certification that Reilly received addresses the following concern. Here, sсent taken from the evidence found at the scene (the shell casings) (1) was subjected to the potentially degrading environmental factor of being fired from a gun and (2) had come in direct contact with human skin (scent left by a person’s fingers as contrasted with scent left on detectives’
chairs). Do such distinctions in the origin of scents make any difference? Can a Labrador retriever, or any other dog, be trained to conduct a lineup in which such scents are involved? One commentator responded that “without scientific testimony establishing that dogs can indeed be so trained, the court or the jury cannot determine whether a dog’s training was adequate.” (Taslitz,
supra,
In ruling that
Kelly
did not apply to the scent lineup evidence and rejecting Mitchell’s argument that an adequate foundation had not been established, the trial court essentially agreed with the approach taken in
Winston v. State, supra,
We further conclude that, even if Kelly were not deemed to apply to scent identification evidence in general, a greater foundation than the one provided here is needed for its admission. In tracking and trailing, there is a history of canine performance which provides the basis for the fifth Malgren element— that this type of evidence will be admitted if it is shown that the dog was put on a fresh trail. For scent identification to be relevant, there must be some basis for assumptions made about degradation and contamination of scent, both before and during collection, as well as the uniqueness of each person’s odor, beyond the mere experiences of one trainer and one dog. Accordingly, scent lineup identification evidence was improperly admitted in this case.
iii. Prejudice
Although we have concluded that evidence of Reilly’s scent identification was admitted in еrror, we find no prejudice. We have carefully inspected the exhibits in this case. Photographs of Lazaro’s front door and the adjacent sidewalk reveal that Lazaro was less than 20 feet from Mitchell and Rogers when he viewed them on the sidewalk in front of his house for three or four seconds. The sketch prepared by the police artist working in conjunction with Lazaro on the day of the murder (August 20) bears a remarkably close resemblance to the profile photograph of Mitchell in a white T-shirt from which Lazaro made his identification on September 12. Nor do we see any great significance in Lazaro’s failure to identify positively the photograph of Mitchell in the six-pack shown to him on August 24 (Lazaro said that Mitchell “looks like” the person with the gun), inasmuch as that photograph depicts a then barely 16-year-old, when his features were less mature. Notwithstanding whether Lazaro might have been better able to identify the perpetrators had he been wearing his glasses when he looked out the screen door, we assess his identification of Mitсhell as being quite strong.
In addition, fellow gang member Hartfield (albeit with something to gain from his testimony) stated that Mitchell had bragged about shooting a Hoover gang member whom he and Rogers had caught “slipping.” This term was utilized by Mitchell in the rap lyrics he admittedly wrote, describing the shooting by saying; “Caught off brand slipping. Put two in his brain.” Bullets of the same brand and caliber used in the murder were found in the search of Mitchell’s home. And at some point following his arrest, Mitchell appears to have acquired a tattoo designating himself as a “Hoover killer.”
Mitchell’s claim of prejudice is further undermined by the fact that Rogers was also convicted, notwithstanding that the scent lineup evidence did not incriminate him. Other than the scent lineups, Rogers was faced with the same type of evidence as Mitchell, primarily Lazaro’s identification and Hartfield’s testimony about Rogers and Mitchell bragging on the day of the murder. If anything, the case against Rogers was weaker than against Mitchell, given that Lazaro failed to identify Rogers from the six-pack array and made only a tentative identification when all were wearing the white T-shirts. By convicting Rogers, the jury apparently found Lazaro’s and Hartfield’s testimony not only credible but compelling beyond a reasonable doubt.
2-4 *
DISPOSITION
The judgments are affirmed.
Spencer, P. J., and Ortega, J., concurred.
Appellants’ petition for review by the Supreme Court was denied October 15, 2003. Baxter, J., did not participate therein.
Notes
People v. Kelly, supra,
The myriad cases that discuss evidence gleaned from canine ability to discern the scents of explosives or narcotics are not pertinent to this opinion and therefore are not discussed.
The holdings of Malgren and Gonzales with respect to instructional requirements have been incorporated into CALJIC No. 2.16, which provides as follows:
“Evidence of dog tracking has been received for the purpose of showing, if it does, that the defendant is [the] [a] perpetrator of the crime of_. This evidence is not by itself sufficient to permit an inference that the defendant is guilty of the crime of _. Before guilt may be inferred, there must be other evidence that supports the accuracy of the identification of the defendant as the perpetrator of the crime of
“The corroborating evidence need not be evidence which independently links the defendant to the crime. It is sufficient if it supports the accuracy of the dog tracking.
“In determining the weight to give to dog-tracking evidence, you 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 tracking in question.”
Defendant’s jury was instructed on scent identification with a version of CALJIC No. 2.16 as follows (court’s modifications in italics):
“Dog scent discrimination evidence has been received for the purpose of showing, if it does, that the defendant is the perpetrator of the crime charged in this case. This evidence is not by itself sufficient to permit an inference that the defendant is guilty of the crime charged. The dog scent discrimination evidence must be corroborated by other evidence tending to connect the defendant with the commission of the charged crime.
“In determining the accuracy of the dog scent discrimination evidence and the weight to give this type of evidence, you should consider the training, proficiency, experience and proven ability, if any, of the dog, its trainer and its handler, the manner and circumstances surrounding the collection of the dog scent discrimination evidence, any evidence on the subject of whether the dog scent discrimination evidence was or was not contaminated, the manner and circumstances in which the evidence was presented to the dog and its handler, and the reaction, if any, of the dog, as described by the handler, to the dog scent discrimination evidence.”
Based on this conclusion, we need not discuss Mitchell’s contention that the trial court erred in refusing to permit his expert to testify on the scent identification issue.
See footnote, ante, page 772.