Friday, April 29, 2016

DNR's Emery testifies in second day of coyote trial

April 28, 2016 | vol. 97, No. 101

Richard Jenkins/Daily Globe

GOGEBIC COUNTY Prosecutor Nick Jacobs, right, questions DNR Sgt. Grant Emery, second from right, Wednesday during the trial of Jason Charles Roberts. Also in the courtroom were, from left, Gogebic County Clerk Gerry Pelissero and Circuit Court Judge Michael Pope.


Bessemer - The second day of Jason Charles Roberts' trial on animal cruelty charges in Gogebic Circuit Court consisted of testimony by Department of Natural Resources Sgt. Grant Emery Wednesday.

Roberts faces a felony charge of torturing an animal and misdemeanors for cruelty to an animal and failure to kill a wounded animal. The first charge carries a maximum sentence of four years in prison, while the others have maximum sentences of 93 days and 90 days, respectively.

The charges stem from a YouTube video of hunting dogs attacking and killing a wounded coyote.
Gogebic County Prosecutor Nick Jacobs began his direct examination of Emery by establishing Emery's basic resume, including his 17-year career as a conservation officer and his love of the outdoors.

"Conservation officers - it's more than a job, it's a way of life for us," Emery said.

Emery testified the nature of his job gives him the discretion to determine when to issue citations and when to simply give a warning.

Jacobs followed this line of questioning by establishing the timeline of Emery's investigation into the YouTube video.

Once Emery established what the prosecution viewed as the basic facts of the case, Jacobs began a series of hypothetical scenarios questioning what laws required of hunters related to the dispatching of game animals.

Emery told jurors hunters are obligated to immediately dispatch wounded game animals and make a reasonable effort to retrieve game.

"Immediate to me means without delay. The hunters code of ethics that we follow - we want clean, quick kills," Emery said. "Killing an animal is violent, and we all understand that. Killing is violent - but quick and clean, that's what we want."

He acknowledged different styles of hunting allowed different standards for what constituted immediately killing the animal, using the example of waiting hours before pursuing a deer shot with a bow as an example.

Emery testified the standards largely depended on what the common practices of the hunting style were, later testifying some delays dispatching game was allowed if it enhanced the ability to retrieve the dead animal. Such as allowing a deer to "lie and die" when shot rather than pursuing it immediately.

Jacobs also asked Emery about testimony he gave during previous court appearances in the case.
Emery testified that while he previously testified dogs were allowed to kill game in Michigan and the owner of a hunting dog wasn't obligated to dispatch an animal wounded by someone else, a recent review of the game regulations showed him both of those assertions were incorrect.

While dogs were allowed to be used in the tracking and pursuit of game, Emery told the jury his interpretation of the law after reviewing additional sections was that dogs killing game animals was prohibited.

He said while accidental kills were technically a violation, he likely wouldn't cite hunters in those cases as there wasn't an intent to have the dogs kill game.

Jacobs also entered several pieces of evidence into the record, including a copy of the video Emery obtained from Google - YouTube's parent company - and accompanying documentation.

Roberts' attorney, Roy Polich, objected to the inclusion of the evidence Emery obtained from Google. Polich made several arguments explaining his objection, including his belief that while Emery was able to establish the video sent by Google was indeed the video on YouTube that prompted the case, he couldn't testify that it was an accurate depiction of the hunt.

Polich said while Emery believed the video was shot in February 2014 and showed illegal activity, there is no way to know the date of the hunt or what actually happened in the woods because Emery's sole source of information is the video - which didn't come to his attention until approximately a month after it was uploaded.

He compared the admission of the video to a photograph, arguing Michigan's rules of evidence usually required the photographer or someone present when the photo was taken who can testify the photo is accurate.

"In this case, the first time this witness looked at (the video), by even the download date, was a month later. So, when was it taken? We don't know. Where was it taken? We don't know," Polich said.

Gogebic County Circuit Court Judge Michael Pope ruled the video could be used as evidence in the case - saying among the date, location and events surrounding the hunt are things the prosecution has to establish during the trial - but ruled other information obtained from Google regarding unrelated material wasn't going to be entered as evidence.

Jacob's questioning also included showing the YouTube video, followed by Emery testifying on the video's content.

Following Jacobs' direct examination, Polich cross-examined Emery.

Among the areas Polich focused on during his cross was the change in Emery's understanding of the law between previous hearings and Wednesday and if Wednesday's interpretation of the law was an objective reading of the relevant text. 

"Where does it say dogs are not allowed to kill game," Polich asked after Emery read what he said was the applicable law. 

Emery responded that it wasn't listed as an allowed activity in the law.
"Why would you tell this jury and this court that (the section of law) says they can't kill game," Polich asked.

Emery responded that the prohibition on dogs killing game was his interpretation of the text.
"So not only you didn't know about it ... the last two times you testified, now you have a new interpretation of it."

Emery disputed the idea it was a new interpretation, arguing he didn't have a previous interpretation.
Polich also raised the change in understanding of the law regarding the responsibility of the dog owner.

He also pressed on the requirement that game be immediately dispatched, arguing the coyote in the video was alive for a much shorter time than game is allowed to be in other types of hunting.

"You already agree that it took (the dog that killed the coyote) less than a minute," Polich asked. "So if we presume that there is no law that says a dog can't kill a coyote - you know we're just talking about (the immediate kill requirement) - was perhaps (the dog) the best method to quickly kill this coyote?"

Polich asked if given the circumstances of the hunt - which he said occurred in deep snow and where all the ammunition was used - the use of a dog to kill the coyote was more humane than any of the available alternatives. Emery disagreed with the idea that using the dogs was humane, citing possible alternatives including clubbing or stabbing the animal depending on what was available.

Polich's line of questioning continued in an effort to show jurors that the use of dogs to kill game was as standard in coyote hunting as not immediately pursuing wounded deer while bow hunting.

The trial continues at 9 a.m. today.

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