Wednesday, July 23, 2003
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Conviction Upheld for Man Who Threw Dog Into Traffic
By a MetNews Staff Writer
The Northern California man who drew a three-year prison term prison term for throwing a dog into traffic following a minor traffic accident with the animal’s owner had his conviction upheld yesterday by the Sixth District Court of Appeal.
Substantial evidence supported Andrew Burnett’s conviction for animal cruelty, Justice Eugene Premo wrote for the court.
Burnett’s case made national headlines after he threw Sara McBurnett’s 10-year-old bichon frise Leo into oncoming traffic after the accident in February 2000. He left the scene, but his vehicle was identified by two citizens, and police were notified, after a San Francisco radio talk show host raised $120,000 in reward money.
McBurnett said Burnett yelled at her before he reached through the car window, grabbed the dog and tossed him onto the road where he was struck by a car seconds later. McBurnett grabbed the dog, who bit her, then took him to a veterinarian’s office, but he died en route.
Burnett’s trial attorney, Mark Garcia, argued that the defendant had reached into the car only to point out to McBurnett that there was a place she could safely park her car off the roadway. His actions toward the dog, the attorney argued, were an instinctive reaction after Leo bit him.
But McBurnett said the dog had never bitten anyone before he bit her while he was in pain. And Premo yesterday said the story was implausible, criticizing Burnett’s claim that Garcia rendered ineffective assistance by advising him not to testify.
The justice explained that after suggesting in his opening remarks that Burnett would, in fact, testify in his own defense, Garcia learned that Santa Clara Superior Court Judge Kevin Murphy was going to allow prosecutors to impeach him with evidence of prior bad acts.
Murphy ruled admissible evidence that Burnett had stolen a van and some tools belonging to his employer, and had provided false documents to a traffic court in order to avoid paying speeding tickets. And he tentatively ruled that if Burnett testified that he reached into the vehicle but did not intend to harm the dog, prosecutors could present a witness who would testify that she saw the defendant beat a stray dog to death five years earlier.
The judge gave the defense a week to prepare for the proposed testimony, but Garcia then advised his client not to testify.
Burnett’s appellate counsel argued that Garcia should have moved for mistrial, based on surprise at the tentative ruling, and failing that should have told the defendant to go ahead and testify, as the jury was expecting.
But there would have been no point to a mistrial motion, Premo reasoned, since it would not have been granted and the denial of the motion would not have been reversed on appeal. And advising Burnett not to testify was sound strategy, the justice said, because any exculpatory testimony would clearly have looked false in light of the other evidence.
The case is People v. Burnett, 03 S.O.S. 3850.
Copyright 2003, Metropolitan News Company