Michigan Court of Appeals Holds Cadaver Dog Evidence Admissible

On November 13th, 2014, the Michigan Court of Appeals held in a criminal case that cadaver dog evidence is admissible

if the proponent of the evidence establishes the foundation that (1) the handler was qualified to use the dog; (2) the dog was trained and accurate in identifying human remains; (3) circumstantial evidence corroborates the dog’s identification; and, (4) the evidence was not so stale or contaminated as to be beyond the dog’s competency to identify it.

In People v Lane, Docket No. 313818, the Michigan Court of Appeals addressed a challenge to the admissibility of cadaver dog evidence admitted in a jury trial involving the abuse and murder of a young child.  On appeal, defendant challenged the trial court's decision to admit testimony from a cadaver dog's handler that circumstantially helped prove the prosecution's theory that defendant beat the child to death and ultimately disposed of her body. Defendant argued that the evidence was inadmissible under Michigan Rules of Evidence (MRE) 702 and 401.

The Court first recited the facts of the case.

Lane was the father of Bianca Jones, who was two years old when she disappeared. In 2011, Bianca primarily lived with her mother Banika Jones, her grandmother Lilia Jones Weaver, her uncle Gerry Weaver, and Mary Ford-Gandy on Custer Street in Detroit. Lane, Anjali Lyons, Bianca’s seven-year-old sister, and Bianca’s two-year-old sister lived with Lisa Dungey on Mitchell Street in Detroit.

Jones testified that after Bianca was born, Lane often visited her. In late 2011, Lane agreed to help Jones with child care by taking temporary custody of Bianca. Jones testified that Lane was glad that Bianca would be able to spend some time with her sisters. According to Jones, Lane picked Bianca up on November 26, 2011. At that time, he was driving Dungey’s silver Grand Marquis because his car was broken down. Lane was going to keep Bianca until before Christmas, and Bianca would share a bed with her two-year-old sister.

Lyons testified that Lane was responsible for child discipline in the house. Dungey testified that Lane used time-outs, but testified that Lane hit the children with a home-made paddle, fashioned from a wooden stick with a duct tape-covered sponge on one. According to Lyons, Lane kept the paddle in a linen closet down the hall from the children’s room. The closet door squeaked when it was opened. Lyons could not recall if Lane ever used the paddle on Bianca, but the seven-year-old testified that Lane had used the paddle to give Bianca “a whooping.”

Jones testified that Bianca was almost toilet-trained, but still had accidents and wore pull- ups at night. Jones did not pack any pull-ups for Bianca when Lane picked Bianca up. Lyons testified that if Bianca or the two-year-old had an accident at night, Lane would ask them questions, spank them, and give them a time-out.

According to Lyons, between November 26 and December 2, 2011, Bianca had diarrhea and more than one accident. At trial, Lyons testified that she did not remember how Lane reacted to Bianca’s accidents. Lyons’s preliminary examination testimony was admitted as substantive evidence. At her preliminary examination, Lyons testified that Lane became angry, frustrated, and irritated, and was “more upset” the second time that Bianca had an accident.

Clinton Nevers testified that he worked out in Lane’s basement every morning. According to Nevers, on November 29, 2011, he was sitting in Lane’s living room after working out. He heard “three hard paddles” and a baby begin to cry. Nevers went to investigate and Lane met him in the doorway of a bedroom where Bianca was crying. Lane told him that Bianca had urinated and defecated on his floor and “he don’t play that s***.”

According to Dungey, she picked Lyons up from work on December 1, 2011. She also picked up the seven-year-old and Lane’s teenage nephew, and dropped them off at her house. She did not return until the following morning. Lyons testified that she put the children to bed around 10:30 p.m., sat with Lane and Lane’s nephew for an hour, and then went to bed.

According to Lyons, the sound of Bianca crying woke her during the night. She heard “a couple taps” from the downstairs bathroom and a toilet flushing. Lyons heard Lane ask Bianca about wetting the bed, heard the closet door open, and heard Lane hitting Bianca with the paddle. Lyons did not get up to investigate. Lyons testified that, in response to an investigative subpoena, she had stated that she heard four or five smacking sounds and that Bianca was crying “like she was really intensely in pain.”

In a video interview with police that was played for the jury, Lane stated that Bianca had a little diarrhea that night and did not sleep well. According to Lane, at some time around 1:00 a.m., Bianca fell out of bed while getting up to go to the bathroom and hit her head on the floor. Lane took her to the bathroom, then kept her awake for a few hours in case she had a concussion . . .

According to Dungey, Lane called her briefly to mention that he was going to Banika Jones’s house to pick up more clothes for Bianca. Some time after that, Lane called back, crying and saying that someone took Bianca. Lyons testified that she could hear Lane screaming on Dungey’s phone. Dungey testified that she heard a woman take Lane’s phone. The woman said that someone took Bianca, that she was going to call the police, and hung up.

According to Ford-Gandy, who lived with Jones, she was still in bed when someone began banging on her door and yelling outside. It was between 9:00 and 9:15 a.m. Ford-Gandy heard a loud crash that sounded like someone “was busting down the door.” Weaver testified that when he went downstairs, Lane was in the living room. According to Weaver, Lane was sobbing uncontrollably and kept saying “they got her[.]” Weaver could not make sense of what Lane was saying, but Lane eventually said that he had been carjacked by people with guns.

Weaver assumed that Lane had called the police and called Lilia Jones Weaver, Bianca’s grandmother. According to cell phone records, Lane called Dungey at 9:40 a.m. Ford-Gandy testified that, after Lane admitted he had not called the police, she used his phone to call the police. Lane’s cell phone records indicated that the 911 call was placed at 9:47 a.m.

Detroit Police Officer Patrick Lane testified that he arrived at Lane’s house within five minutes of the 911 call. According to Officer Lane, Lane was very “shaken up” and it took a while for him to respond to any questions. Lane eventually stated that he had been driving “a black Crown Vic.” When Officer Lane asked Lane where the carjacking occurred, Lane pointed to the corner of Custer and Brush.

In his recorded interview, Lane stated that he ran into Blackwell on Howard Street. Then he went along Woodward to Warren, turned right, took Warren to Brush, turned left, and headed south on Brush to Grand Boulevard. On Grand Boulevard, he stopped at a stop sign and someone behind him was honking at him. The other car was small, red, and had square headlights. Someone in the other car said that his lights were out, so he left his car to see if they were out. At that point, the front seat passenger got out of the other car holding a gun, jumped into Dungey’s car, and drove off.

Detroit Police Officer Richard Arslanian testified that he heard a broadcast that a “black Mercury” with a child in the backseat was carjacked, and he began looking for the vehicle in the area of Brush, Custer, and Philadelphia streets. At 10:15 a.m., Officer Arslanian found Dungey’s car in an alley. According to Officer Arslanian, the car’s door was open, the car had its keys in the ignition and was running, and there was a child’s car seat on the backseat that was covered by a blanket. The car was about half a mile from Custer.

Detroit Police Officer David LeValley testified that he thought it was “significant” that Bianca was not in the car. According to Officer LeValley, on the basis of his familiarity with crime reports, he would have expected the carjacker to leave the child in the vehicle. LeValley testified about extensive efforts by police and the community to locate Bianca, but Bianca was never found.

Agent Hess testified that he reviewed Lane’s cell phone records. Lane’s 8:55 a.m. call to Blackwell was not consistent with Lane being on Brush at that time because the area the call came from was four blocks west of Brush, on an area of the I-75 service drive near I-94.

Agent Hess testified that he took Lane on a “ride-along” on December 9, 2011. On the ride-along, Lane stated that he ran into Blackwell at the corner of Lafayette and Cass. Then he took Lafayette to Griswold, turned left, took Griswold to Grand River, turned right, took Grand River to Woodward, and turned left. According to Hess, Lane’s body language during the ride- along was “significant.” Lane “would not look to the left” when they passed the alley where Officer Arslanian found Dungey’s car. Lane also got “worked up” when Hess drove along St. Aubin, east of I-75: he began breathing faster and shallower and started covering his face more than he had previously.

Andrea Halverson, an expert in DNA and forensic science, testified that she tested a DNA sample from the paddle. She excluded Jones and Dungey as contributors to the sample, but could not exclude Bianca or Lane. Halverson also tested a blood sample from a pillow, which matched Bianca’s DNA profile.

At trial, FBI Canine Program Manager Rex Stockham testified as an expert in forensic canine operation. Stockham testified about the process of training and testing victim recovery dogs. Stockham’s protocol called for regular single- and double-blind testing of dogs throughout their working lives. Stockham’s program had three full-time handlers in its program, including Martin Grime. Stockham testified that he had tested Morse and Keela, Grime’s dogs, and that both dogs had accuracy ratings in the high 90 percent range. Stockham testified that dogs have been able to smell the odor of decomposition as soon as 2 hours after a victim’s death, or years after a victim’s burial.

Grime testified as an expert in the training and employment of cadaver dogs. According to Grime, he is a full-time contractor for the FBI. Grime worked with Morse, a dog “trained to search for and detect the odor of decomposing human remains,” and Keela, “trained to search for and locate specifically human blood.” Grime testified that there was no methodology to test the dogs’ responses when there is no recoverable material, and that the odor of decomposition may transfer if a person touches a dead body and then touches something else.

According to Grime, on December 4, 2011, he took his dogs to an enclosed warehouse that contained 31 vehicles. Grime was told that Bianca was in one of the vehicles at the time of the carjacking, but was not told which vehicle was involved. Morse alerted Grime to the presence of the odor of decomposition in the back seat and trunk of a silver Grand Marquis. Keela later screened the car and did not alert Grime to the presence of human blood.

Grime testified that, after the vehicle screening, he took the dogs to an administrative building to screen the items removed from Dungey’s car. Grime did not know where the objects were located in the building, and the objects had been placed in a room filled with “all sorts of things.” Morse alerted Grime to the odor of decomposition in Bianca’s car seat and a bag containing Bianca’s blanket. Grime later took the dogs to Dungey’s house. Morse alerted him to the odor of decomposition in a room that contained bunk beds and a closet without a door.

The Court's analysis of the admissibility of the cadaver dog evidence admitted at trial followed.

MRE 702 permits the trial court to admit expert opinion testimony on areas of specialized knowledge:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

“[T]he court may admit evidence only once it ensures, pursuant to MRE 702, that expert testimony meets that rule's standard of reliability.” The Davis-Frye test examines the reliability of the evidence. The purpose of this test is to “ensure that a jury is not relying on unproven and ultimately unsound scientific methods . . .”

Lane contends that the trial court erred when it admitted the cadaver dog evidence in this case because the testimony was not the product of reliable principles or methods. We disagree.

Michigan courts have applied the Davis-Frye test to the admissibility of tracking dog evidence. In People v Riemersma, this Court considered whether tracking dog evidence was admissible. In Riemersma, the dog’s handler testified about the dog’s reliability during testing and in prior investigations. Additionally, circumstantial evidence corroborated the dog’s identification. This Court concluded that, under those circumstances, the tracking dog evidence was admissible.

The Riermersma Court relied on this Court’s previous holding in People v Norwood regarding the necessary foundation to establish that tracking dog evidence is reliable. In Norwood, this Court held that tracking dog evidence is sufficiently reliable if the proponent of the evidence shows four things:

(1) the handler was qualified to use the dog; (2) the dog was trained and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the alleged guilty party to have been; and, (4) the trail had not become so stale or contaminated as to be beyond the dog’s competency to follow it.

We reject Lane’s argument that, because chemical evidence cannot corroborate whether there was decomposition at the locations Morse identified in this case, the evidence must be excluded as unreliable. Clearly, the four-part test adopted by this Court to ensure the reliability of tracking dog evidence does not exactly correlate to the use of cadaver dogs. However, cadaver dog evidence is not significantly different from other forms of tracking dog evidence. Tracking dogs and cadaver dogs both use a precise sense of smell to identify scents that are outside the range of human ability to detect. Scientific devices can no more follow the scent left on a piece of discarded clothing from the scene of a robbery to a person’s home than they can identify the smell of decomposing human remains. Just as it is not a reason to exclude all tracking dog evidence, the lack of scientific verification of the presence of a specific scent is not a reason to exclude cadaver dog evidence in a blanket fashion. We conclude that the trial court must instead consider the reliability of the cadaver dog evidence in each case.

We also conclude that the trial court did not err by applying the tracking dog test to cadaver dog evidence. Essentially, the trial court in this case applied the foundational requirements of Norwood to another form of dog-based evidence. Here, the trial court determined that Grime and Stockham were “more than qualified,” that they had employed sufficient training methods, and that circumstantial evidence supported Morse’s identification of the car, car seat, and blanket because Morse identified those items when neither Morse nor Grime had any prior knowledge that those items were involved in this case. While the trial court did not specifically determine that the evidence was not stale, Grime’s dogs tested the evidence on December 4, 2011, a mere two days after Bianca’s disappearance on December 2, 2011, and there was no evidence that the car, car seat, or blanket were contaminated with human remains.

In sum, we conclude that cadaver dog evidence is sufficiently reliable if the proponent of the evidence establishes the foundation that (1) the handler was qualified to use the dog; (2) the dog was trained and accurate in identifying human remains; (3) circumstantial evidence corroborates the dog’s identification; and, (4) the evidence was not so stale or contaminated as to be beyond the dog’s competency to identify it. We conclude that, here, the trial court correctly ruled that the prosecutor provided a sufficient foundation to admit the cadaver dog evidence in this case. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the evidence under MRE 702 . . .

Lane contends that the trial court erred because (1) the evidence was uncorroborated and thus not probative, and (2) the evidence was unfairly prejudicial because it invited the jury to rely on the infallibility of the dog. We disagree.

The killing of a human being is an element of murder. Because Bianca’s body was never recovered and Lane alleged that she was kidnapped, the fact of Bianca’s death was in contention. The reaction of a cadaver dog to the child’s car seat, blanket, and bedroom certainly makes the fact of Bianca’s death more likely to be true.

As discussed above, it is not necessary to have a machine confirm the presence of the odor of decomposition to admit the cadaver dog evidence. In tracking dog cases, this Court has concluded that evidence is corroborated when circumstantial evidence also supports the reliability of the dog. Here, circumstantial evidence supported the dog’s reliability. Morse identified Dungey’s car and items associated with Bianca without Morse or Grime knowing that those items were involved in Bianca’s disappearance. Further, the seven-year-old testified that Bianca did not walk, talk, move, or speak on the morning of her disappearance, witnesses testified that Lane took Bianca to his car with a blanket over her head, and Lane’s nephew testified that Bianca was “[j]ust looking” while she was on the couch and in the car. We conclude that the evidence was probative in this case.

We also disagree with Lane’s contention that it was highly likely that the jury would give the cadaver dog evidence presumptive weight. The record simply does not support Lane’s assertions that Grime and Stockham testified that the dogs were infallible. Rather, Stockham testified that the dogs’ accuracy was in the high 90 percent range, and Grime specifically testified that he would not say that the dogs were perfect. The trial court also instructed the jury that it could not convict Lane solely on the basis of the cadaver dog evidence. This Court presumes that jurors follow their instructions. We conclude that the trial court did not err by admitting irrelevant evidence.