People v. Norwood

N. J. Kaufman, J.

(dissenting). I find it necessary to dissent from the well-written opinion of my colleague. The trial judge in his findings of fact stated 1 :

"The Court: Gentlemen, in this cause, the Court finds on March 18, 1974, on Lawton Street in the city of Detroit, the complainant, Patricia Gordon, was the victim of assault and a rape. This Court finds that the evidence connecting the defendant to such assault is the testimony of the complainant, her statement made prior to coming to court. I’m, in making this determination, gentlemen, also using as corroboration the conduct of the dog in tracking the defendant. I’m of the opinion *59 that is corroborative despite the fact that the dog didn’t go up to the person, that person of the defendant in this case. I’m of the opinion that the dog wasn’t lead around the corner. I am satisfied beyond a reasonable doubt, I find him guilty, * * * .” (Emphasis supplied.)

My reading of the trial judge’s finding is that he found defendant guilty beyond a reasonable doubt based solely on the complainant’s testimony. I agree with the majority that the testimony concerning the tracking dog was erroneously admitted. However, the court’s findings clearly show that this testimony was incidental to the verdict. Because the erroneous evidence was not intolerably offensive to the maintenance of a sound judicial process and because the court relied not on the improper evidence but on the other, substantial evidence against defendant, I find this error to have been harmless. People v Swan, 56 Mich App 22 ; 223 NW2d 346 (1974). I find this especially so in view of the fact that defense counsel did not object to the admission of the challenged evidence when such an objection could have cured any alleged prejudice.