{ "id": 2676436, "name": "STATE OF NORTH CAROLINA v. BOBBY GEORGE LANIER", "name_abbreviation": "State v. Lanier", "decision_date": "1981-01-20", "docket_number": "No. 8022SC687", "first_page": "383", "last_page": "388", "citations": [ { "type": "official", "cite": "50 N.C. App. 383" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "252 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548892 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0072-01" ] }, { "cite": "93 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "244 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219561 ], "year": 1956, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0380-01" ] }, { "cite": "207 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "22 N.C.App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11310509 ], "year": 1974, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc-app/22/0628-01" ] }, { "cite": "139 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "665-666" } ], "opinion_index": 0 }, { "cite": "263 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569961 ], "year": 1965, "pin_cites": [ { "page": "358-361" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0353-01" ] }, { "cite": "231 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "843-844" } ], "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "year": 1977, "pin_cites": [ { "page": "495-497" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "146 S.E. 409", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1929, "pin_cites": [ { "page": "411" }, { "page": "411" } ], "opinion_index": 0 }, { "cite": "196 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628150 ], "weight": 2, "year": 1929, "pin_cites": [ { "page": "545" }, { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc/196/0542-01" ] } ], "analysis": { "cardinality": 648, "char_count": 12952, "ocr_confidence": 0.95, "pagerank": { "raw": 2.93349020873843e-07, "percentile": 0.8475318445206651 }, "sha256": "a594711ca2c9c0862281a396d274cba6084dee2fd647470c5978b4fdb84312a5", "simhash": "1:a72f508d31d109be", "word_count": 2255 }, "last_updated": "2023-07-14T22:39:05.008611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BOBBY GEORGE LANIER" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendant contends the trial court erred in admitting the testimony of the State\u2019s witness as to the actions of the bloodhound and in refusing to grant his motion to dismiss for insufficiency of the evidence. We agree with both contentions.\nIn State v. McLeod, 196 N.C. 542, 545, 146 S.E. 409, 411 (1929), our Supreme Court, per Chief Justice Stacy, set forth the rule on admission of evidence regarding actions of bloodhounds as follows:\nIt is fully recognized in this jurisdiction that the action of bloodhounds may be received in evidence when it is properly shown: (1) that they are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2) that they possess these qualities, and have-been accustomed and trained to pursue the human track; (3) that they have been found by experience reliable in such pursuit; (4) and that in the particular case they were put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.\nThis rule has been quoted with approval in recent opinions of the Supreme Court. See State v. Irick, 291 N.C. 480, 495-497, 231 S.E.2d 833, 843-844 (1977); State v. Rowland, 263 N.C. 353, 358-361, 139 S.E.2d 661, 665-666 (1965).\nWe do not consider whether the evidence here met the first three McLeod requirements, for we find that it clearly failed to meet the fourth requirement.For bloodhound evidence \u201c[t]o be considered by the jury, it is necessary for the State to show that the dog was put on the trail of the guilty party under such circumstances as to afford substantial assurance that the person trailed was, in fact, the person suspected.\u201d State v. Marze, 22 N.C.App. 628, 630; 207 S.E.2d 359, 361 (1974). Nothing in this record tends to establish that the defendant was ever at the Hartman residence. The witness Bates testified that he saw two men at the residence, but he was unable to identify them. There was no evidence whatsoever that the defendant was at the place from which the dog was released to track the thieves. There was evidence that a .22 rifle and a. 12 gauge shotgun were missing from the Hartman residence, and that they were found \u201con the far side of the fence from the house;\u201d but there was no evidence whatsoever placing them or other stolen items in defendant\u2019s possession or placing defendant closer than \u201cabout a mile and a half or two miles\u201d from where they were located. There was evidence of footprints being found in the vicinity of the Hartman residence, but no evidence whatsoever indicating they were defendant\u2019s footprints. There was no evidence whatsoever that defendant was fleeing to avoid capture.\nThe evidence tending to \u201cafford substantial assurance ... of identification\u201d in McLeod was considerably greater than that here; yet, the Supreme Court in McLeod held that it should have been excluded. A fortiori, the evidence here should have been excluded. Likewise, there was considerably more evidence in Marze than here tending to identify the defendant and to point to his guilt; yet, this Court considered that evidence insufficient to go to the jury. A fortiori, the evidence here was insufficient to go to the jury.\nThe sum of the evidence against this defendant is that one and one-half to two hours after a breaking occurred one and one-half to two miles away, he was found on a \u201clittle sandbar\u201d by a creek watching the rippling of the brook on a Sunday afternoon. If this constitutes criminal conduct, the author of this opinion pleads guilty to repeated offenses; and he only regrets the infrequency of their occurrence. Further, this may be the type of case Shakespeare had in mind when he wrote:\nThe jury, passing on the prisoner\u2019s life, May in the sworn twelve have a thief or two Guiltier than him they try.\nThe evidence relating to the actions of the bloodhound should have been excluded for its failure \u201cto afford substantial assurance or permit a reasonable inference, of identification\u201d as required by McLeod. 196 N.C. at 545, 146 S.E. at 411. Without this testimony, the record is devoid of any evidence which even raises \u201ca suspicion or conjecture\u201d as to defendant\u2019s guilt, and certainly does not contain the \u201csubstantial evidence of all material elements of the offense [necessary] to withstand the motion to dismiss.\u201d State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956). See also State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979).\nThe judgment is therefore vacated and the cause remanded to the superior court for entry of judgment of dismissal.\nVacated and remanded.\nJudges Hedrick and Clark concur.\nW. Shakespeare, Measure for Measure, Act II, Scene 1, line 19.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General George W. Lennon, for the State.", "Leonard and Snyder, by James E. Snyder, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOBBY GEORGE LANIER\nNo. 8022SC687\n(Filed 20 January 1981)\nBurglary and Unlawful Breakings \u00a7 5.1; Criminal Law \u00a7 44\u2014 actions of bloodhound \u2014 testimony inadmissible \u2014 insufficiency of evidence\nIn a prosecution of defendant for breaking or entering, evidence relating to the actions of a bloodhound should have been excluded because the State failed to show that the dog was put on the trail of the guilty party under such circumstances as to afford substantial assurance that the person trailed was in fact the person suspected, and the case should have been dismissed for insufficiency of evidence where the evidence tended to show that one and a half to two hours after a breaking occurred, one and a half to two miles away, defendant was found on a little sandbar by a creek; there was no evidence tending to establish that defendant was ever at the residence broken into; the only witness to the crime was unable to identify the man he had seen leaving the residence; there was no evidence defendant was at the place at which the dog was released to track the thieves; there was no evidence placing stolen guns or other stolen items in defendant\u2019s possession; there was evidence of footprints in the vicinity of the residence, but no evidence indicating they were defendant\u2019s footprints; and there was was no evidence that defendant attempted to flee to avoid capture.\nAPPEAL by defendant from Rousseau, Judge. Judgment entered 12 March 1980 in Superior Court, Davidson County. Heard in the Court of Appeals 2 December 1980.\nDefendant was charged in a proper bill of indictment with breaking and entering, larceny and receiving.\nThe State\u2019s evidence, in summary, was as follows:\nGeorge Bates, a neighbor whose house was \u201cabout one hundred feet\u201d from that of Roy Hartman, the victim of the alleged offense, testified that on 30 September 1979 he saw a masked man run to Hartman\u2019s back door and go down a stairway. A few seconds later a smaller man did the same. It \u201cwas about 10:00 o\u2019clock in the morning\u201d when he first saw these two men. Bates heard glass break in the door. He then saw one of the two men \u201ccome out the back door with two guns,\u201d and he \u201casked him to hold it right there.\u201d The man then \u201chollered at the one inside the house and started running.\u201d The other man \u201cran out and ran around the house where [Bates] could not see him.\u201d The first man \u201chad on a mask,\u201d and the second had what \u201clooked like a stocking over his head.\u201d Bates \u201cwas not able to recognize the two men at [his] neighbor\u2019s house.\u201d He \u201ccould not tell anything else about them such as race or anything of that nature.\u201d Bates testified:\nThe closest I ever got to the two men I saw coming out of the house was about a hundred feet. I could not recognize who they were, nor could I see the color of their hair. One was a little heavier than the other; he had on the ski mask. The other one had a stocking over his head. Both were built kind of husky.\nThe final question to Bates on cross examination, and his answer, were:\nQ. The fact of the matter is you can\u2019t say you saw Mr. Lanier (the defendant) come out of the house?\nA. No, I couldn\u2019t see his face, that\u2019s what I recognize a man by is his face.\nRoy Hartman, the owner of the home which was broken into, testified that he returned home from church on 30 September 1979 and found that his basement door and the wall between the stairsteps were torn down. His belongings were scattered about the house and certain items including a .22 rifle and a .12 gauge shotgun were missing. He did not know the defendant, Bobby George Lanier, and he had not given the defendant or anyone else permission to enter his home that morning and remove anything.\nPaul Lanier, an employee of the North Carolina Department of Corrections, testified on direct examination that his duties with the Department included \u201crunning escapees when they escape from prison, bank robbers, anything like that with bloodhounds.\u201d He had performed these duties \u2018 \u2018for about twelve years. \u201d On the morning of 30 September 1979 at a time he could not recall he had brought a registered bloodhound with him to the Hartman residence. He had \u201cworked with that particular dog three or four years.\u201d\nLanier then testified on voir dire that he had trained this dog himself; that she was \u201cpure blood\u201d and was \u201cfrom the dog from Hee Haw, Boraguard (sic);\u201d that he had worked with the dog\u2019s father and mother in tracking prisoners, and this dog had \u201ccaught prisoners before;\u201d and that he was \u201cnot an expert at dog pedigrees.\u201d\nHe further testified on voir dire that when he arrived with the dog at the Hartman residence on 30 September 1979, \u201cone of the deputies... said two fellows had run out of the back of the house.\u201d He had \u201cput the dog around at the back of the house and run a track... east of the Hartman house where [he] lost the track.\u201d He then took the dog back to the house where he \u201cstarted north away from the house, running another track for approximately a mile and a half or two miles.\u201d He \u201cthen went east and north; then west and [found] the defendant [who] was beside a creek that runs behind the Hartman\u2019s house out in the woods.\u201d The defendant \u201chad on a pair of shoes and a pair of pants, but that\u2019s all he had on.\u201d Lanier testified: \u201cThe dog was following a track from the time I put him on that track until the time I found [the defendant]. It was around noon when I ran upon [the defendant].\u201d\nThe trial court overruled defendant\u2019s objections to Lanier\u2019s testimony, and he then testified on direct examination that \u201c[t]his bloodhound was bred for tracking human beings;\u201d that it was \u201capproximately four years old, \u201d and he had trained it \u2018 \u2018from a puppy; \u2019 \u2019 and that it \u201chad been used successfully to track human beings on more than one occasion prior to September 30,1979.\u201d He then reiterated before the jury his voir dire testimony about having \u201cput the dog on the track,\u201d having lost one track, and ultimately while pursuing a second track having found the defendant \u201con a little sandbar, where some water comes into the main creek.\u201d He testified that he \u201cobserved human footprints,\u201d but he did not at anytime link the footprints to the defendant. He also testified that the defendant \u201cdid not have anything with him at the time [he] found him.\u201d\nOn cross examination Lanier testified that when a dog he trains \u201cgets on track,\u201d it is \u201csupposed to\u201d and \u201cusually does\u201d stay on the track of the \u201cparticular person or thing;\u201d that when a prisoner escapes and \u201cwe put the dog in on that track, most of the time that is who we catch, the prisoner that run;\u201d but that \u201csometimes we run across a hunter [and] that dog will run that track a little way,\u201d and that the dog \u201cwouldn\u2019t stay on [the scent or track] everytime.\u201d He stated that on this occasion he \u201cstarted tracking... somewhere after 10:00 o\u2019clock... in the morning\u201d and \u201ccaught [defendant] around dinner;\u201d that he ran \u201ca pretty good while before [he] caught anybody;\u201d and that he \u201cstarted sometime after 10:00 o\u2019clock [and] it was about 12:00 when [he] caught him.\u201d He imagined he \u201cwas running that dog approximately an hour and a half.\u201d When he first saw defendant, defendant \u201cwasn\u2019t trying to get away from [him].\u201d\nGreg Kirkman, a detective with the Davidson County Sheriff\u2019s Department, testified that he arrived at the Hartman home at approximately 12:30 on 30 September 1979; that he went to the edge of the back yard and \u201cstarted down a slight grade approximately one hundred feet;\u201d that he found a barbed wire fence that was down; and that he found two weapons \u201con the far side of the fence from the house,\u201d \u201ca .22 rifle and a .12 gauge shotgun.\u201d He \u201ctook the weapons back to the house where Mr. Hartman identified them\u201d (presumably as the weapons Hartman had testified were missing from his house).\nDefendant offered no evidence. The trial court denied defendant\u2019s motion to dismiss, and the jury returned a verdict of guilty of felonious breaking or entering and larceny.\nFrom a judgment of imprisonment, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General George W. Lennon, for the State.\nLeonard and Snyder, by James E. Snyder, Jr., for defendant appellant." }, "file_name": "0383-01", "first_page_order": 409, "last_page_order": 414 }