Court grants defense motion to exclude regarding accelerant testimony in Coonrod case WATCH THE VIDEO

Judge Rocky Coss has ruled in favor of the defense regarding a pretrial motion in limine to exclude evidence from a canine search in proceedings in the capital murder case of Wesley Coonrod. 

An evidentiary hearing was held on the motion, and several other matters, Tuesday in Highland County Common Pleas Court. 

According to the written motion by the defense, filed Aug. 20, the court was asked to exclude all evidence relating to a "March 7, 2010 canine search of 150 Lafayette Street, Apt. A, conducted by the Fire Marshall's Office. The canine's alert for the presence of accelerant was not substantiated by laboratory testing."

The court heard oral arguments on the matter from Coonrod's attorney William Mooney, and Highland County Prosecutor Jim Grandey for the state. 

The search with the canine was conducted following a fire in Coonrod's residence, in which his two young sons were killed. Mooney said there were five areas at the residence in which the dog, which is trained in accelerant-detecting, alerted there was accelerant. Five samples were taken but were not substantiated by lab testing. 

Mooney said that the only purpose the state wants the testimony is so it can be suggested there was accelerant, based on the dog's indication. The defense could only cross examine the handler, who could say the dog - whose name is William - is more sensitive than the lab test. 

"Who, then, is testifying?" Mooney said.

If the examiner had somehow conducted the test, the matter would be different, Mooney said. 

"But he is relying on a dog. We can't cross examine a dog," Mooney said. "There is no way to test William's credibility. And that's the purpose for which the evidence is being submitted. The purpose of (the handler's) testimony is, 'Look, we have a problem with the lab report. I know what the lab report said and it said it was negative (for accelerant) in all those places. We've got a problem with that.'"

Mooney said the handler's testimony will proffer that the the dog "will tell you what really happened. And on the basis of that, in a capital case, they're offering that evidence, as proof that Wesley put that accelerant there. That's the purpose of that testimony. And we can't cross examine that."

Grandey argued that the dog is a tool in the process of the investigator/handler's investigation process that led him to determine that the fire was intentionally set. 

"Mr. Mooney and Mr. (defense attorney Jerry) McHenry can cross examine him all they want," Grandey said. "The admissibility of evidence is based on whether or not the court abuses its discretion. How much weight can be given to that can be handled either through cross examination or an instruction to the jury on the weight of the evidence."

Grandey said that even if the evidence is allowed regarding the accelerant, they still have to prove who set the fire. 

The court would not be abusing its discretion by allowing the handler on "the tools he used to reach his determination that this fire was intentionally set and an accelerant may have been used. The only remaining issue then is who set it. And that is still a burden we have to establish beyond a reasonable doubt, that Mr. Coonrod set the fire."

Mooney said that Ohio courts have not ruled on the matter regarding evidence of accelerant-detecting dogs, but five other states have made that type of evidence inadmissible if there is not scientific evidence to support that. 

Grandey presented two cases in which such evidence was allowed. Coss questioned Grandey on the cases and regarding the scientific fallibility of the dog. Grandey said that lab tests did not necessarily indicate that there was no accelerant, there was just not enough to meet an "arbitrary" amount.

Coss said that it was not arbitrary if it was accepted by the scientific community. Coss questioned Grandey on why the accelerant-detecting dog evidence should be admitted, when a drug-detected dog evidence is not allowed unless drugs are found. Grandey said it goes to supporting the process and conclusions of the investigator. Coss asked what the investigator did differently due to the indications of the dog regarding accelerant. Grandey said that it goes to support his conclusions. 

"The court has a real tough time being comfortable allowing a person to testify that the dog alerted on accelerant for the purpose of proving there was accelerant there when there is no scientific test to validate it," Coss said. 

Coss ruled in favor of the defense's motion. "The testimony is not admissible and the pretrial ruling would be to exclude it. Now in the event the state has evidence they would like to offer that the dog was accurate, I would certainly hear that."

Coss said the matter could be revisited just prior to trial. Grandey indicated the state would file a motion to reconsider, and Coss set that for a hearing at 10 a.m. Sept. 27.

Also during the hearing various investigative reports were discussed. Mooney said that a fire inspection report that has been conducted by the defense has been partially concluded and the state will receive the full report once the defense has it . An additional report was made available to the state Tuesday, he said. Mooney told the court that a consulting psychiatrist who has been retained by the defense has indicated he will testify during the mitigation phase if the trial results in a conviction. Mooney asked that the defense not be required to submit that report to the state unless the proceedings must go to mitigation. Coss granted that request but said the report must be given to the state immediately following the trial. 

The court met Tuesday with members of the media covering the trial and offered a schedule of the proceedings. Jury selection will begin Monday, Sept. 27 and go until 12 jurors and six alternates are selected. It is anticipated a jury will be seated by Sept. 30, when opening arguments will be heard at 1 p.m. Once opening statements are given, the jury will be excused until Oct. 4. Coss said that if a jury is seated earlier, he has instructed all parties to be ready to proceed. 

The court has sent out 400 jury notices, and 50 potential jurors have already been excused. Just under 20 additional jurors were also excused during the hearing Tuesday for various reasons, including being deceased, moving, medical reasons, transportation and work issues. 

Once proceedings begin and Coss takes the bench, no one will be allowed in or out of the courtroom, and the door will be locked. Coss said that is to eliminate distractions to the jury. The court will recess approximately every hour. 

When the jury deliberates, Coss said by law, the jury must be sequestered. Coss and Highland County Sheriff Ron Ward discussed security for Coonrod and the jury and the numbers of deputies that will be required during the trial proceedings. 

Additionally, a hearing was held Monday, prior to the previously mentioned hearing, regarding a defense motion to suppress regarding a search warrant. Judge Steven Beathard of Fayette County presided over the court because Coss had signed the search warrant. Coss will continue to preside over the other hearings and the trial. During the brief hearing, Mooney said that after consulting with is client they decided to withdraw the motion. Beathard addressed Coonrod, asking if he understood and if he was OK with the decision by his attorneys. Coonrod responded, "Yeah," to the judge's questions. 

A final pretrial will be scheduled for the week of Sept. 20.