State v. Powell

446 S.E.2d 26 (1994)

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Nature of the Case

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Facts

Hoke Lane Prevette, a five-foot, one and one-half inch, ninety-four-pound jogger, was attacked by D's dogs and died as a result of multiple dog bites. The dogs were away from D's property and had been loose earlier that day. D had two Rottweilers, each over one year old. Bruno weighed eighty pounds, and Woody weighed one hundred pounds. On the evening of 20 October, 1989 Hoke left his home to go jogging. At about 11:00 p.m., James Fainter and his wife returned to their home and discovered his body in their front yard, and notified the police. The autopsy of Hoke concluded that he died as the result of multiple dog bites. External injuries included shallow scrapes, deeper puncture wounds that extended down into tissue, evulsing skin, and skin torn away creating large holes in some places. His internal injuries included broken ribs on the left side and collapsed lungs. The cause of death was determined to be collapsed lungs, loss of blood, and choking. Police went to D's house to investigate a report that D's dogs had been out that evening. D admitted that his dogs had been out twice that day and that he picked the dogs up in his automobile at approximately 9:00 p.m. at the intersection of Cascade Avenue and Dinmont Street. Six hairs removed from Hoke's clothing were canine, but they could not match the hairs to a particular dog. Human blood was found in multiple places that the dogs had been, but it could not be typed because of the presence of an inhibiting substance, possibly soap. A forensic odontologist testified that dental impressions taken from Bruno and Woody were compatible with some of the lacerations in the wounds on Hoke's body. Witnesses testified to seeing Bruno and Woody running loose in the neighborhood prior on numerous occasions and to their aggressive behavior. Animal Psychologist Donna Brown testified regarding an evaluation for aggressive propensities that she performed on Bruno and Woody in November 1989. She videotaped her testing and showed the videotape to the jury. Dr. Brown concluded that both dogs showed dominance and predatory aggression. She opined that an attack on a person would be consistent with her observations of Bruno's and Woody's behavior. Animal Behavioralist Peter Borthelt testified for D that, although he had not evaluated the dogs, he had reviewed Dr. Brown's videotape and her results which he found to be ambiguous. He testified that aggressiveness was only one possible interpretation of the dogs' behavior and that some of it could be labeled 'play.' Several witnesses testified that Bruno and Woody were friendly and playful and responded to his commands to get down or sit. Other defense witnesses testified that the dogs were not aggressive when they were loose in the neighborhood. An animal control officer indicated that the department had no information that the dogs had previously bitten anyone. D was convicted and appealed.