I N D E X

INDEX.................................................................................................................................................... 1

TABLE OF AUTHORITIES.................................................................................................................. 2

ISSUE PRESENTED........................................................................................................................... 3

STATEMENT......................................................................................................................................... 4

ARGUMENT.......................................................................................................................................... 6

CONCLUSION.................................................................................................................................... 13

TABLE OF AUTHORITIES

Cases

Hayden v. State, 278 S.C. 610, 299 S.E.2d 854 (1983)................................................................ 11

State v. Bostick, 253 S.C. 205, 169 S.E.2d 608 (1969).................................................................. 7

State v. Brown, 103 S.C. 103 S.C. 437, 88 S.E. 21 (1916)........................................................ 7, 8

State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989).................................................................... 6

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. 199, 127, 410 S.E.2d 547 (1991)........................................................ 8

State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979)........................................................... passim

State v. Jordan, 258 S.C. 340, 188 S.E.2d 780 (1972)................................................................... 6

State v. Kelly, 285 S.C. 373, 329 S.E.2d 442 (1985)..................................................................... 11

State v. Spann, 334 S.C. 618, 513 S.E.2d 98 (1999).................................................................... 11

State v. Whaley, 305 S.C. 138, 406 S.E.2d 369 (1991).................................................................. 8

State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct. App. 2007)....................................... 4, 6, 8, 11

Statutes

S.C. Code § 17-25-45......................................................................................................................... 4

Other Authorities

The Mythic Infallibility of the Dog, in Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup, 42 Hastings L.J. 15 (November 1990)......................................................... 9

Rules

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

ISSUES PRESENTED

1. The Court of Appeals incorrectly held that the dog tracking evidence was admissible without requiring the state to demonstrate the underlying reliability of dog tracking before admitting the police dog-handler’s testimony into evidence.

2. The Court of Appeals incorrectly held that petitioner was not entitled to a new trial or in the alternative to remand for a hearing on the motion based on newly-discovered evidence when his co-defendant, who testified against him at trial, has retracted his testimony

STATEMENT

Richland County grand jurors indicted petitioner for kidnapping, two counts of armed robbery, and possession of a weapon during the commission of a violent crime.  Petitioner stood trial during the June 2005 term of the Richland County Court of General Sessions before the Honorable James R. Barber and a jury.  The jury found petitioner guilty as charged, and he was sentenced to life confinement without the possibility of parole under to S.C. Code § 17-25-45.

On direct appeal to the Court of Appeals, White argued:

1. The trial court erred by denying petitioner’s objection to the state’s expert witness, a dog-handler, without requiring the state to establish the underlying reliability of dog-tracking as a scientific or technical field.

2. Petitioner is entitled to a new trial based on newly-discovered evidence because his co-defendant, who testified against him at trial, has retracted his testimony.

Brief of Appellant, p. 3.   The Court affirmed. App. p. 1-21: State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct. App. 2007).   It wrote that dog tracking evidence is not required to meet the scientific evidence standard articulated in State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979) and that dog tracking evidence is admissible provided the dog handler’s knowledge, skill, experience, and training qualifies the handler in the area of dog tracking. 

On October 19, 2005, White’s appellate attorney filed a Motion to Remand for a New Trial or in the Alternative, For a Hearing Into New Evidence.  On December 9, 2005 the Court of Appeals denied this motion.  In their opinion, the Court  wrote that the Petitioner’s claim as to the right to a new trial based on newly-discovered evidence was dismissed based on procedural  grounds that the trial court did not rule on the issue so there was nothing for the appellate court’s review.  Counsel for White filed a timely petition for rehearing pursuant to South Carolina Appellate Court Rule 221(a).  The Court denied rehearing by order dated March 22, 2007. 

Appellate counsel filed a petition for writ of certiorari to the Supreme Court on April 23, 2007.   The Court issued an order on November 19, 2007 granting the petition for a writ of certiorari. 

ARGUMENT

1.

The Court of Appeals incorrectly held that the dog tracking evidence was admissible without requiring the state to demonstrate the underlying reliability of dog tracking before admitting the police dog-handler’s testimony into evidence.

Petitioner argued on appeal that the lower court erred by not requiring the state to demonstrate the underlying reliability of dog tracking before admitting a police dog-handler's testimony into evidence, under Rule 702, SCRE, and State v. Jones, 273 S.E. 723, 259 S.E.2d 120 (1979).   Petitioner did not challenge the handler's expertise in the field, but only the underlying reliability of the field itself. 

As noted in the brief of the appellant, State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999), required the lower court "find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable."  Id. at 335 S.C. 20, 515 S.E.2d 518.  To determine reliability, the court should have applied the factors from Jones, above:  (1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.  Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517, citing Jones and State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990). 

Respectfully, petitioner submits that dog-tracking, although it has a long history of use has never been proved reliable under modern standards in a South Carolina Court of Law.  In its opinion, the Court cited several cases involving disputes over the handler's expertise.  App. p. 5 – 10: White citing State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989); State v. Jordan, 258 S.C. 340, 188 S.E.2d 780 (1972).  It cited one case issuing a jury instruction on dog-handling, State v. Brown, 103 S.C. 103 S.C. 437, 88 S.E. 21 (1916), and one case holding that dog-handling identification testimony is not a confrontation-clause violation.  State v. Bostick, 253 S.C. 205, 169 S.E.2d 608 (1969).  Petitioner respectfully submits that none of these cases addressed the issue he presented on appeal.  He did not challenge the handler's expertise but the underlying validity of the field itself, and not on the basis that identification by a dog violates his confrontation rights.  Rather, he moved to compel the state to demonstrate the reliability of the underlying field of expertise, as he was permitted to do under Jones. 

The Court cited State v. Johnson, 306 S.C. 199, 127, 410 S.E.2d 547, 552 (1991), for the proposition that dog-handling testimony is per se admissible in South Carolina.  Johnson, however, relied on a 1913 case, State v. Brown, 103 S.C. 437, 88 S.E.2d 1 (1916), for the same proposition.  A nearly hundred-year-old case may demonstrate the second Jones factor (prior application of method), but it does not prove the remaining factors.  Moreover, given the constant and rapid advancements in scientific and technical knowledge, a case as old as Brown could not sufficiently prove the remaining Jones factors. 

The Court cited a number of foreign cases in reaching the conclusion that dog-tracking evidence is reliable per se.  App. p. 10 – 13.(citations omitted).  Petitioner respectfully submits that, by appearances at least, the litigants in those jurisdictions were permitted to fully examine the issue.  Petitioner was denied even a hearing into the reliability of dog-tracking.  No evidence on the underlying reliability of dog-tracking has been placed on the record in this case because petitioner did not receive a hearing under Jones.

Finally, the Court proposed that dog-tracking was not scientifically based but is an "experienced-based" field which does not require Jones analysis under State v. Whaley, 305 S.C. 138, 406 S.E.2d 369 (1991).  App. p. 13 – 17.  In Whaley, the trial court granted the state's motion to suppress the testimony of an expert (Ph.D. in psychology) in memory retention related to eyewitness reliability on the basis that the defendant had failed to demonstrate the expert's acceptance in the field.  The Supreme Court reversed, holding that the disputed testimony was akin to that of other medical experts, who draw conclusions from their specialized knowledge and experience.  However, the Supreme Court also ruled that the expert’s testimony would have been admissible under Jones as the expert’s testimony was based on established techniques and authorities.    Whaley at 142.  

Petitioner's case is distinguishable.  As noted, petitioner did not dispute the handler's qualifications.  Petitioner challenged the scientific foundation and basis of the field, which (to undersigned counsel's knowledge) has never been demonstrated in a trial in South Carolina. 

The court should have applied the Jones factors and required the state to demonstrate the reliability of dog-tracking.  While dog-tracking has been used for centuries, the reliability of many applications has not been widely or rigorously studied. See The Mythic Infallibility of the Dog, in Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup, 42 Hastings L.J. 15 (November 1990).   And, historical use, alone, should not create a presumption of reliability.   If challenged, the scientific basis of an "old" but untested technique should be subjected to the same scrutiny as a new technique.                      

The foundational requirements for the field must be met and they were not met in White’s case.  The Court wrote that the dog handler’s testimony was analogous to that of the typical police officer who qualifies as an expert based on his experience with narcotics.  This is in error.  The typical police officer does not testify as an expert in narcotics; the dog-handler testified as an expert.  Dog-tracking is not and does not resemble a medical field.  Petitioner properly challenged the underlying reliability of the field of dog-tracking and was entitled to a hearing under Jones.  He respectfully urges the Supreme Court to reconsider this ruling.

2.

The Court of Appeals incorrectly held that petitioner was not entitled to a new trial or in the alternative to remand for a hearing on the motion based on newly-discovered evidence  when his co-defendant, who testified against him at trial, has retracted his testimony.

Petitioner also argued on appeal, by motion and brief, that new evidence entitles him to a new trial.  Appellant's co-defendant, Anthony Morris, testified against him at trial.  On October 12, 2005, trial counsel of the Richland County Public Defender’s Office contacted the appellate attorney and informed her that Mr. Morris had retracted his testimony.  Trial attorney provided the attached sworn statement by Mr. Morris, which reads as follows:  

My name is Anthony Terrell Morris, and I'm claiming this to be a true statement that I'm about to write.  On June 15, 2005, I gave a statement to the Court house, which was a lie, but the reason why, was because I was told that if I testify on my co-defendant, I would plea to a lesser charge than what they wanted me to plea to.  So being that I had [illegible] of my motion, and saw the videotape, I put parts together, and come up with a story.  I also was able to see Roy['s] statements.  To be truthful I wasn't on the scene of the crime.  My lawyer just told me that I was now in the middle of all this, and either way it went I was gonna face some time.  But if I wanted the minimum I would have to testify on a person, and a crime that I don't know anything about.  This is my first time ever being in trouble with the law, so whatever my lawyer told me, I beleived [sic] him.  On the day it was time for me to plea, he came to the county and told me that, they were not gonna drop my charges, so I told him that I didn't wanted [sic]to testify, and I wasn't ready to plea.  In return he told me that I would have to testify, and I would either have to plea, or either go to trail [sic] with my co-defendant, and would get 90 years.  So being that I didn't know what was going on, I did what I was told, and in return, I received 13 years for something I didn't do, and also got my co-defendant time, and really don't know him, or if he was on the crime scene either.

7/15/05
Anthony Morris

Petitioner, by motion, asked the Court of Appeals to order a new trial based on the exculpatory affidavit, or, in the alternative, to remand for a hearing on the motion.  The Court of Appeals denied the motion on December 9, 2005 and affirmed on the basis that the issue had not been presented to the trial court and was not preserved for appellate review.  App. p. 19 – 21.     

Mr. Morris' new statement entitles appellant to a new trial.  A motion for a new trial based on after-discovered evidence should be granted if the appellant shows that the evidence (1) probably would have changed the trial's result; (2) has been discovered since the trial; (3) could not have been discovered through the exercise of due diligence before trial; (4) is material; and (5) is not merely cumulative or impeaching.  State v. Spann, 334 S.C. 618, 513 S.E.2d 98 (1999); State v. Kelly, 285 S.C. 373, 329 S.E.2d 442 (1985); Hayden v. State, 278 S.C. 610, 299 S.E.2d 854 (1983).  

Petitioner submits that the issue was not addressed below because it involves new evidence that was not discovered until after the appeal was underway. Rule 29(b), SCRCP provides that a motion for a new trial based on after discovered evidence may not be made while the case is on appeal unless the appellate court, upon motion, has suspended the appeal and granted leave to make the motion. 

The new statement exonerates appellant, where Mr. Morris' retracted testimony had incriminated appellant.   The new statement was sworn on July 15, 2005, after appellant's trial, and could not have been discovered before it was made.  Mr. Morris' testimony was critical to the prosecution and bore directly on the issue of guilt and innocence, as does its retraction.   It cannot be characterized as cumulative or impeaching, since it repeats no other evidence presented at trial and concerns facts at issue, and not just witness credibility.

Petitioner has been convicted of very serious offenses and is serving a life sentence without the possibility of parole.  In the interest of due process and fundamental fairness, this Court should grant him a new trial based on Mr. Morris' affidavit.  At the very least, he should receive a hearing with the opportunity to subpoena Mr. Morris to determine if his retraction warrants a new trial.  He respectfully asks the Supreme Court to reconsider this issue.

CONCLUSION

Based on the foregoing reasons, the Court of Appeals should be reversed and the case remanded.

This 19th day of December, 2007

STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

_______________________

Certiorari to Richland County

James R. Barber, III, Circuit Court Judge

_______________________

THE STATE, RESPONDENT,

V.

GARY A. WHITE, APPELLANT

__________________________

CERTIFICATE OF SERVICE

 __________________________

I certify that a true copy of the brief of petitioner in this case has been served on Harold M. Coombs, Jr., Esquire, at the Rembert Dennis Building, 1000 Assembly Street, Room 519, Columbia, SC 29201, this 19th day of December, 2007.

SWORN TO BEFORE ME this 19th day
of December, 2007.

                                                                 (L.S.)

Notary Public for South Carolina
My Commission Expires: March 19, 2017

STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

_______________________

Certiorari to Richland County

James R. Barber, III, Circuit Court Judge

_______________________

THE STATE, RESPONDENT,

V.

GARY A. WHITE, APPELLANT

_______________________________

BRIEF OF PETITIONER

_______________________________

February 5, 2009

Harold M. Coombs, Jr., Esquire
Senior Assistant Attorney General
Post Office Box 11549
Columbia, South Carolina 29211

Re:  The State v. Gary A. White

Dear Harold:

Enclosed are two copies of the brief of petitioner in the above case that I filed with the S.C. Supreme Court today.

If you have any questions concerning this matter, please contact me.

LCD/lcd
Enclosures

February 5, 2009

Mr. Gary A. White #309726
McCormick Correctional Institution
386 Redemption Way
McCormick, SC  29899

Re:  Your appeal

Dear Mr. White:

The Supreme Court granted the petition for writ of certiorari that I filed on your behalf.  Enclosed please find a copy of the brief of petitioner on your case that I filed today with the South Carolina Supreme Court on your behalf.

Should you have any questions concerning this matter, please contact me.

LCD/lcd

Enclosures