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Drug-sniffing dog's evidence reinstated on appeal

The German shepherd's records were lost when his trainer was fired. But his performance never was questioned.

By ABBIE VANSICKLE
Published October 1, 2005

INVERNESS - An appeals court reversed a ruling by Circuit Judge Ric Howard on Friday, sending three drug cases back to his court and clearing the way for prosecutors to allow previously suppressed evidence from a Citrus County Sheriff's Office drug dog.

Howard erred by basing his decision on a case that was out of the "mainstream," wrote Judge Vincent G. Torpy Jr.

The result of the ruling by the 5th District Court of Appeal is that three drug cases can be reargued with evidence that Howard had banned because they all involved Thor, a drug dog. The defendants are Kevin Coleman, 32, Gary Lee Wilson, 53, and Jeffrey Sean Hamilton, 37.

"I guess we'll just have to bring it back and have another evidentiary hearing," said defense attorney Charles Vaughn.

Thor is a German shepherd trained to sniff out drugs for the Sheriff's Office. Thor's credibility problems began in 2003, when his handler, Deputy George Phelps, was fired after he was accused of domestic battery and child neglect.

The child neglect charge has been dropped, and the battery charge was reduced to a misdemeanor.

Phelps kept Thor's training records in his patrol car, but the records were lost, Vaughn said.

In 2004, Vaughn argued that these records were necessary to prove Thor was performing properly at the time Vaughn's clients were arrested. Without the records, he said, Thor's proficiency couldn't be proved. He also argued successfully that Phelps' word wasn't enough to prove Thor was doing his job.

Vaughn relied on a 2003 case from the 2nd District of Appeal called Matheson vs. State to make his argument. In Matheson, the appeals court said a police dog's track record leading up to a drug search had to be available to prove probable cause.

Howard agreed and tossed out the evidence.

Assistant state attorney Richard Buxman appealed the judge's decision. He argued that Thor's credibility as a drug dog was never in question. Thor was always a certified drug dog and performed well, Buxman said. Plus, the Sheriff's Office had plenty of records proving Thor was reliable, he said.

In early September, Vaughn defended his argument in front of a three-judge panel in Daytona Beach. He again focused his argument on the Matheson case.

Assistant attorney general Pam Koller argued on behalf of the state. Phelps should be allowed to testify about Thor's training record, she said. She also argued Matheson wasn't a good precedent to set, and the appeals judges agreed.

Vaughn said he wasn't shocked by the court's decision. He was optimistic, though, and said he didn't think Phelps would be able to give good testimony from memory about the missing records.

This isn't the first case where Torpy has disagreed with Howard.

In May, Torpy was part of the appeals panel that said Howard's decision to dismiss two cases against an Inverness man showed "good intentions" but was "an abuse of discretion."

The cases in question centered on the 2004 arrest of Donald Ray Franklin Jr., 31. Franklin was charged in three cases involving driving while his license was canceled, suspended or revoked as a habitual offender and possessing 20 grams or less of marijuana, according to court records.

Howard decided to dismiss two of the cases against Franklin after he told the judge he was working to turn his life around.

Torpy was also the judge who in 2004 criticized Howard for his 10-year prison term for Daniel Cummings, a young man who stole a gun and a safe.

Torpy agreed Howard's decision was legal. But in an unusual aside, he criticized Howard's sentence as "unduly harsh." Howard later released Cummings from prison after his father retrieved the stolen gun.

--Abbie VanSickle can be reached at 860-7312 or vansickle@sptimes.com

[Last modified October 1, 2005, 01:45:17]