State v. Cannon

• Decision Date: 16 August 2021
• Docket Number: M2019-01629-CCA-R3-CD
• Parties: STATE of Tennessee v. Caleb Josiah CANNON
• Court: Tennessee Court of Criminal Appeals

642 S.W.3d 401

STATE of Tennessee

v.Caleb Josiah CANNON

No. M2019-01629-CCA-R3-CD

Court of Criminal Appeals of Tennessee, AT NASHVILLE.

January 13, 2021 Session

FILED August 16, 2021

Patrick T. McNally (on appeal), Katie Hagan and Jim Todd (at trial), Nashville, Tennessee, for the appellant, Caleb Josiah Cannon.

Herbert H. Slattery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan King and Doug Thurman, Assistant District Attorneys General, for the appellee, State of Tennessee.

Jessica M. Van Dyke, Nashville, Tennessee; Dana M. Delger, Steven M. Witzel, Nathan M. Erikson and Alexandra Verdi, New York, New York, for the Amicus Curiae, The Innocence Project.

Robert W. Wedemeyer, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Timothy L. Easter, JJ., joined.

Robert W. Wedemeyer, J.

A Davidson County jury convicted the Defendant, Caleb Josiah Cannon, of premeditated first-degree murder, and the trial court sentenced him to life in prison. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion in limine to exclude evidence that a human remains detection dog alerted to the presence of the scent of human remains in the Defendant's home and car; (2) the evidence is insufficient to prove that the victim was deceased or that the Defendant caused her death; (3) the trial court erred when it admitted testimony from a witness identifying him in court because such testimony was tainted; and (4) the trial court erred when it excluded defense proof. After review, we affirm the judgment of the trial court.

This case arises from the disappearance of Nicole Burgess, who was last seen by the Defendant, the father of one of her sons. A Davidson County grand jury indicted the Defendant for one count of premeditated first-degree murder.

I. Preliminary Motions and Trial

A. Defendant's Motion in Limine

The Defendant filed a motion in limine to exclude certain evidence. As relevant on appeal, the Defendant sought to exclude any evidence that related to the searches conducted by four dogs involved in searching the victim's home for evidence of human remains and the three dogs involved in searching his vehicle. The Defendant sought to exclude any evidence based on the searches and any resulting alerts the dogs may have made.

At a hearing on his motion, the defense presented Carl Alexander, a heavy equipment mechanic and K-9 handler, who testified that he had been handling K-9's for fifteen years. He worked as a volunteer for law enforcement, and sometimes for private citizens, and he had assisted law enforcement in Davidson County on many occasions. Mr. Alexander testified about his extensive training and his own K-9, Stozie, a human remains detection dog ("HRD dog"). Mr. Alexander reviewed Stozie's official training log that detailed the number of training sessions, which varied each year and depended on other factors, such as how often the HRD dog had been asked to attend searches. Mr. Alexander offered Stozie's training records from 2014 as evidence. These records showed that, for each training session, Mr. Alexander recorded the weather conditions and temperature, how Stozie alerted, and a score 1-10 given to Stozie for his performance that day. The records also contained a section for Mr. Alexander to opine the reason if an HRD dog did not perform to his expectation.

Mr. Alexander said that Stozie had a certification through Precision Search Dogs, located in Alberta, Canada. Mr. Alexander himself was certified as an HRD dog handler by Ventosa Kennel and by Drug Beat, a law enforcement-based agency. He could not estimate the number of seminars and training courses he had attended in the last fifteen years, but he said that he had received several hundred hours of training. Mr. Alexander noted that there was no national certification for HRD dogs. Mr. Alexander said he had previously testified as an expert in Tennessee courts concerning tracking and trailing and scent discrimination, and he offered evidence of his testimony in other cases.

The trial court declared Mr. Alexander an expert in HRD dogs. Thereafter, the defense questioned Mr. Alexander about the HRD dogs involved in this case. He said that he had reviewed and seen the records for the four HRD dogs and dog handlers that were involved in the searches in this case. The defense said that it intended to focus on two searches, one of a home and one of the Defendant's vehicle.

Mr. Alexander reviewed and testified regarding a report prepared by Spencer Harris, a Metropolitan Nashville Police Department ("MNPD") officer, who participated in a search of a home on Oak Vale Drive ("Oak Vale Home") on May 29, 2014. Mr. Alexander said that, although Office Harris created the report, he was not one of the four dog handlers who had participated in the search. Mr. Alexander opined that, because Officer Harris had not participated in the foundation training of any of the HRD dogs, he should not be allowed to produce a report giving an opinion of what appeared to have happened. Mr. Alexander said that the report was missing key information, such as a diagram or drawings, and it was even missing the minimum of GPS tracking.

Reviewing the report of the search of the vehicle, Mr. Alexander testified that there were several things concerning to him in the report. He first was concerned that Officer Harris, who signed the report, may not have been present for the search. The report contained information about what the dogs did during the search, but there was no evidence that Officer Harris personally observed the searches. Also concerning was that the vehicle search was conducted as a "lineup" that included law enforcement vehicles, and he opined that it is never appropriate to use law enforcement vehicles in a vehicle lineup of cars.

Mr. Alexander then reviewed each of the four dog handlers in this case. First, he said that the records from Sergeant Karen Douglas, who handled K-9 Dakota, showed that before this search she had trained Dakota on four occasions for a total of eighty minutes for the entire year before they conducted this search. Further, each of those training sessions showed only positive, and he would expect that there would be some sessions that were "less than normal." Officer Harris's report indicated that Dakota did not alert on the bathroom in the Oak Vale Home, but the other three dogs present all alerted to the presence of the scent of human remains in the bathroom. Dakota alerted to the presence of human remains on a pink rug near the bed in the bedroom.

Mr. Alexander then discussed Shirley Grauberger and her K-9, Jackson. The documentation provided to him showed that Ms. Grauberger had completed two trainings, one that was twenty hours and one that was eight hours, both of which were in human remains detection. He said that the documents showing the completion of training did not list Jackson's name and did not say that Ms. Grauberger successfully completed the training. He agreed that there was nothing in the record that showed that the HRD dog gave a positive alert or failed to alert during the training. The records indicated that Jackson was cross-trained and also that Ms. Grauberger handled multiple HRD dogs. Mr. Alexander interpreted the records to indicate that Jackson was trained to find whole cadavers and not human remains.

Next, he reviewed the records from Julie Allen and her K-9, Libby. Mr. Alexander said that Ms. Allen had several certificates for dog handling but none of those pertained to human remains. Further, there was no indication that Libby had been certified in any detection. Mr. Alexander testified that many of the logs Ms. Allen submitted were incomplete, and he noted some of the specific deficiencies in her logs.

In the final set of records for Dr. Ysela Carrillo and her K-9 Cleo, Mr. Alexander testified that this team was involved in two searches, both the May 29 search of the Oak Vale Home and the June 1 search of the Defendant's vehicle. He said that Cleo had not been certified by any organization. He said that the training logs were not specific and did not contain information like the temperature, or the substance the dog was being trained on, or even if the dog made a positive alert. Cleo's logs indicated that he started cadaver training on February 9, just four months before he was involved in the searches in this case. It further appeared that Cleo was cross-trained, meaning that he was trained as a live-find or tracking dog and also as an HRD dog. The records offered no indication of how reliable Cleo was when searching for human remains.

Mr. Alexander then discussed what occurred during the two searches. He first testified regarding the May 29 search of the Oak Vale Home. Mr. Alexander said that four of the dogs alerted to the presence of human remains in the bedroom and three of four alerted to the presence of human remains in the bathroom. He noted that, from his extensive review of photographs, all of the dogs should have alerted in the bedroom because there were items that would have caused them to alert such as: brushes full of hair, dirty undergarments, and even what appeared to be blood in the home, which he described as messy and dirty.

Mr. Alexander noted that, in the bathroom, pictures showed that there was a clump of hair that had been pulled from the drain and a bloody diaphragm in the trash can. He said that an HRD dog would alert to both of these, and it would not necessarily signify that a dead body had been in the bathroom. He again explained that HRD dogs would alert to bodily fluids, semen, blood, hair, fingernails, bone, anything that was a by-product of the human body. Handlers attempted to curb the dogs’ response to human waste.

Turning to the June 1 search of the Defendant's vehicle, Mr. Alexander testified that law enforcement officers placed the vehicle in a "line up." He...