February 14, 2002
Circuit Court Judge Robert Skar bound over the owners of the rottweiler dog that killed a 1-year-old Lovell girl last October on involuntary manslaughter charges at a preliminary hearing last Thursday.
The charges of aiding and abetting filed against Anne Shine and Matthew Martinez were dismissed by Judge Skar. After six hours of testimony by five witnesses called by Big Horn County Attorney Robert Gish, Judge Skar ruled that there had not been sufficient showing of evidence to prove aiding and abetting, so he dismissed the charge against both Martinez and Shine.
Regarding the involuntary manslaughter charge that both are facing, Skar said he felt there was probable cause Òthat a dangerous animal was being kept by the defendants. He said the evidence for probable cause included testimony regarding the extreme weight loss of Max the dog and testimony that the dog showed dangerous propensities and the viciousness of the dog was at times being flaunted by Martinez.
He further stated that the defendants provided a danger by staking the dog, known to be aggressive, to the front of the trailer home where they lived at 50 West Second when they knew there were young children around.
The Attack
The Lovell Police received a 911 call regarding a dog attacking a child on October 29, 2001, at 1:30 p.m. at the corner of Second and Kansas. Officer Rob Bifano testified that he arrived at the scene with his sirens going. He shut his sirens off when he notice a man flagging him down and hollering at him, Shoot the dog, shoot the dog, we can't get the dog off.
Bifano said he ran to where the child was, used his baton to hold the dog off, spraying it with pepper spray, and grabbed Kristin. He said he knew there wasn't time to wait for the ambulance so he and one of the construction workers, Fred Darrington, drove the child to the hospital. Kristin Ann Jolley died at the hospital, he said. Chief Nick Lewis testified that the autopsy revealed that the Jolley girl had died from the injuries sustained in the dog attack. The dog was taken voluntarily by Shine to the vet, Dr. Jane Undem, to be examined. Undem testified that the dog ate about four cups of food when he first arrived and tried later to get to some cat food.
Shine did agree to have the dog euthanized, Lewis said, adding that she said, Do whatever you have to do. Lewis said no one knows exactly how the girl got out of her own fenced yard. He testified that a neighbor saw Kristin and her mother outside sometime between 12:45 and 1 p.m. Lewis said Kristin's mother, Jackie, told him that she had been away from Kristin for about 15 minutes. He said it was about five minutes after he arrived on the scene that Jackie came over asking if anyone had seen her daughter. Lewis also testified that the lock on the gate appeared defective because the gate at the Jolley home could easily be pushed open.
Defense Arguments
Defense attorneys Travis Smith, representing Shine, and Rick Albanese, representing Martinez, argued that the state had incorrectly charged the defendants by charging both as principles in the case and as accomplices. Albanese sought a motion to dismiss the aiding and abetting charge at the start of the hearing last Thursday and again at the close of the hearing. Smith said, There has been a lot of evidence presented today but no evidence that Anne somehow helped Matt to commit a felony and vice versa.
Albanese also argued in closing that the defendants were improperly charged with involuntary manslaughter. He said the statute states that a person is guilty if he unlawfully kills any human being without malice, expressed or implied, involuntarily, but recklessly.
Albanese argued that the state did not show during the hearing that the defendants committed any direct act resulting in the death of Kristin Ann Jolley. Taking the state's facts in their best light there is no evidence that they in fact killed someone. Criminal negligent homicide speaks to the facts here if you interpret the state's facts in their best light, Albanese said.
Criminally negligent homicide is defined as causing the death of another person by conduct amounting to criminal negligence. Albanese added, Assuming manslaughter does apply É we need to ask who's really negligent? The animal control officer didn't seem to think there was a situation really that bad or he would have done something. The fact that my client got a dog to protect the house and a tragic accident occurred does not equate involuntary manslaughter. Smith added, There's no evidence that the defendants committed an act against this 13-month-old child. ThereÕs no evidence that the dog was used an instrument.
He said, Who was reckless here? The animal control officer felt the dog was vicious and did nothing. The family left the child alone with their dog and she wandered across a city street and ended up in my client's yard. I can't underscore how unfortunate this case is, how sad it is, but the fact is the elements have not been met.
The Prosecution's Case
Testimony regarding the dog's weight loss came from former owner Karen Hytrek of Byron and Lovell veterinarian Jane Undem. Hytrek said she and her boyfriend, Charlie Loman, had gotten the dog about a year before giving it to Shine and Martinez. The dog was about 7 to 8 months old and has been owned by a man in the Air Force. She testified she had gotten the dog because Charlie thought I needed protection.
She said the dog was given to the two around August 21, 2001. She estimated the weight of the dog at over 100 pounds, but testified under cross-examination that she had never actually weighed the dog.Dr. Undem testified that in a post-mortem examination after the October 29 attack that resulted in the death of Kristin Ann Jolley, the dog, named Max, weighed 65 pounds. She said the ideal weight for a rottweiler is 85 pounds (lighter frame) to 100 pounds.
Undem said the stomach contents included dog food that looked similar to what he ate at the clinic. She said there was nothing in the intestinal tract until near the end where there was some mucous and a small soft stool. She said in her opinion the dog's thin condition was because he was not getting the right amount of food.
Lovell Chief of Police Nick Lewis testified that he interviewed a number of people who had seen the dog or was in contact with the dog. He said only one person he interviewed, April Smith, ever said she had seen the dog being fed. Christina Marcus, a former neighbor of Martinez and Shine, said she lived across from them for about three weeks and never saw the dogs getting fed, nor saw Shine or Martinez interact with the dog. She did note that the best view from her trailer was in the kitchen and she didnŐt watch the place all the time. Lewis testified that Lovell animal control officer Dan Allred and his wife Diane, who live next door to Martinez and Shine, told him that they had never seen the dogs being fed. Lewis noted, however, that Allred is attending college at Northwest and is not home during the day.
Undem also stated she tested the dog for tapeworms and found no evidence. She said there could be other diseases that could account for the weight loss. Lewis testified that the State Crime Lab had the dog tested at the State Veterinarian Lab in Laramie and no cancer or other disease was found in the dog.
The state, in the preliminary hearing, attempted to show that the dog has become aggressive while living at the Shine and Martinez home. During his closing, Gish said, Their sole purpose was to make the dog vicious. They wanted it to be mean, they trained it to be mean and it was. Lewis said neighbors of Hytrek said they had never seen Max the dog being aggressive and had no fear of their children playing over at the Hytrek's. Hytrek testified that the dog was playful and friendly and slept with her oldest son. She did say the dog did not like adult males but noted Òhe would bark and then move behind us.
Lewis said in the many interviews he conducted he found only Byron Police Officer Frankier Rohrer stating that he had Ònegative contact with the dog. Lewis testified that he couldn't remember exactly what the contact was. Hytrek did testify that after she gave the dog to Shine, she saw Shine a few times after that walking the dog, or in the grocery store buying dog food. She said she also saw Shine's daughter walking the dog on one occasion shortly after she had given them the dog and he looked healthy and happy.
Lewis testified that he talked to a friend of Martinez's, Rex Anderson. Anderson said when the dog first came to Martinez and Shine home he was playful and happy. Lewis said Anderson told him that the dog's demeanor began to change and he wouldn't come up to Anderson anymore. One time, Anderson told the chief, he and Martinez were outside talking and the dog was barking and wanting to play when Martinez yelled at him. When the dog didn't stop, Martinez got up and kicked the dog in the ribs and Anderson felt the dog was hurt because he cowered away.
Lewis also testified that a friend of Anderson gave him a statement that one day Martinez came to the Anderson home with Max chained in the back of his pickup. Martinez left the pickup running and said, See if you can turn my pickup off. The man attempted to go to the pickup and the dog jumped at him. Anderson also went to the pickup and the dog jumped at him, going over the side of the pickup.
Allred, Lewis said, told him that he thought the dog was one of the more aggressive dogs in town and had said that at one time Shine told him if anyone came on their property Max would Òrip them to shreds. Lewis said others also gave written statements to him regarding the dogs aggressive behavior including the trailer court owner Alan Bair, a postal service employee and a neighbor, among others.