Manocchio v. Moran, 89-1310
| Decision Date | 03 October 1989 |
| Docket Number | No. 89-1310,89-1310 |
| Citation | 919 F.2d 770 |
| Parties | 31 Fed. R. Evid. Serv. 725 Nicholas P. MANOCCHIO, Petitioner, Appellee, v. John MORAN, Director, Department of Corrections, Respondent, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Annie Goldberg, Sp. Asst. Atty. Gen., with whom James E. O'Neil, Atty. Gen., Providence, R.I., was on brief for respondent, appellant.
John A. Macfadyen, Providence, R.I., for petitioner, appellee.
Before LEVIN H. CAMPBELL, Chief Judge, BROWN, * Senior Circuit Judge, and BREYER, Circuit Judge.
This appeal presents the question of whether, in a state criminal trial in which the accused is charged with murder and its lesser included offenses, the introduction into evidence of an autopsy report for the purpose of proving the cause of death, without the personal presence of the medical examiner who prepared and executed the report, violates the Confrontation Clause of the federal Constitution. Contrary to the district court, we hold that use of this report did not violate the Constitution.
The State of Rhode Island appeals from the judgment of the United States District Court for the District of Rhode Island granting the petition of Nicholas P. Manocchio for habeas corpus and overturning his state manslaughter conviction in the 1980 death of Richard Fournier. Manocchio v. Moran, 708 F.Supp. 473 (D.R.I.1989). The district court ruled that the admission into evidence of an autopsy report in the absence of the medical examiner who performed the autopsy, Dr. Joel Zirkin, "in person or by deposition," id. at 479, deprived defendant of his Sixth Amendment right of confrontation and denied him "a full and fair trial on a crucial matter in the case." Id. Finding error "of constitutional dimension" that it could not regard as harmless, the court directed issuance of the writ under 28 U.S.C. Sec. 2254(d)(2), 1 unless the State of Rhode Island afforded defendant a new trial within 120 days. The
district court granted the State's motion for a stay of judgment pending this appeal.
The facts are fully set out in the opinion of the district court, Manocchio v. Moran, 708 F.Supp. 473 (D.R.I.1989), and the Rhode Island Supreme Court, State v. Manocchio, 497 A.2d 1 (R.I.1985). We repeat only those portions necessary to understand the reasoning of this opinion.
The challenged autopsy report was admitted into evidence over the objections of the petitioner that it violated his rights under the Confrontation Clause. The prosecution offered the report to establish that decedent's death was caused by multiple injuries, injuries otherwise shown to have been sustained during a beating at a parking lot. The autopsy was performed by Dr. Joel N. Zirkin, a forensic pathologist who was an Associate Chief Medical Examiner in the Office of the Medical Examiner for the State of Rhode Island, who had by the time of the trial separated himself from the office and removed permanently to Israel. Dr. Zirkin prepared and signed the autopsy report which was co-signed by two associates--Dr. Arthur C. Burns, Deputy Chief Medical Examiner, and William Q. Sturner, Chief Medical Examiner. The report incorporated information derived from various analyses performed by outside laboratories as well as an examination of the decedent's formalin-fixed brain performed by another specialist, Dr. Mary Ambler. Dr. Ambler reported upon the results of the formalin-fixed brain examination at a conference attended by all three signatories to the report. The report also stated that the North Providence Police Department report and photographs, as well as the hospital emergency room records, were reviewed. 2 The report concluded as follows:
CONCLUSION:
It is our opinion that Richard Fournier, a 24 year old white male, died of multiple injuries, including mandibular and maxillary fractures, contusions and abrasions of the face, subgaleal hemorrhage and abrasions of the chest and extremities. Cerebral edema and subarachnoid hemorrhage resulted from the injuries although no cranial fractures, brain contusion, or subdural hemorrhage were seen. The decedent was beaten by assailants in a parking lot on Mineral Spring Avenue, North Providence, on November 2, 1980 at approximately 1:00 a.m. He was found with shallow respirations and a weak pulse. He was taken by Rescue to Roger Williams General Hospital where he died at 1:47 a.m.
MANNER OF DEATH: Homicide 3
Dr. Zirkin was not brought back from Israel to testify at the trial. He was not, moreover, deposed before departing for Israel, although the prosecution and the defense knew before he left that he was leaving the United States permanently. In place of Dr. Zirkin, the prosecution offered Dr. Burns, one of the other signatories to the report, indicating he would either (1) lay a proper foundation for admission of the autopsy, as keeper of the records for the Office of State Medical Examiners; or (2) testify as to the cause of death, being an expert qualified to speak to the substance of the report. The court required the prosecution to choose which of these
two roles Dr. Burns would play. The prosecution elected the former and was thereafter required to limit its questioning of him to that role. Likewise, the defense was not allowed to cross-examine Dr. Burns as to the substance of Dr. Zirkin's conclusions, nor to qualify him as an expert during cross-examination. The court invited the defense to call Dr. Burns as its own witness if it wished to have him testify in relation to the substance of the report. The defense did not do so.
I.
The petitioner, as did the district court, relies heavily upon Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), in arguing that the Confrontation Clause of the Sixth Amendment was violated by the admission into evidence of the autopsy report without the presence and testimony of Dr. Zirkin, the medical examiner who performed the autopsy and prepared the report. At issue in Ohio v. Roberts, was the admissability of an absent witness's former testimony at a preliminary hearing. The Confrontation Clause provides, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Roberts Court noted, 448 U.S. at 63, 100 S.Ct. at 2537. 4
In Roberts, the Court said the Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, it "establishes a rule of necessity" that in the usual case requires the prosecution either to produce, or demonstrate the unavailability of the declarant. And second, once the witness is shown to be unavailable, the Clause "countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule'...." Id., 65, 100 S.Ct. at 2539. The Court summarized:
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." 5 Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
Id. at 66, 100 S.Ct. at 2539 (footnote added).
The Roberts Court went on to note that a declarant becomes unavailable for confrontation purposes when the prosecutor has made a good faith effort to produce the declarant at trial, Roberts, 448 U.S. at 74, 100 S.Ct. at 2543 (citing Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968)). Thus, under Roberts, admission of the autopsy report would conform to the Confrontation Clause only if the medical examiner who prepared it were shown to be unavailable and the report were found to bear adequate indicia of reliability. The Supreme Court of Rhode Island upheld express findings of the trial court both that Dr. Zirkin, the preparer of the report, was unavailable because he "was residing in Israel and was no longer connected with the Office of the Medical Examiner," State v. Manocchio, 497 A.2d 1, 5 (R.I.1985), and that "the 'underlying trustworthiness' surrounding the generation of the autopsy report justified its admission." Id. at 8.
The district court disagreed. It found that the state had not made a good faith effort to obtain Dr. Zirkin's testimony. He could easily have been deposed before he departed for Israel, said the court, or he could have been brought back from Israel to testify at the trial. The district court did not focus on the reliability, as such, of the autopsy report. However, it gave as a further ground for rejecting it the fact that it contained not only medical opinions but also a "factual conclusion," id. at 478, (, that decedent was beaten by unspecified assailants in a certain parking lot shortly before his death, information that the examiner had presumably obtained from the police report), as well as the examiner's conclusion that the manner of death was homicide. The district court stated,
Since petitioner was found guilty of manslaughter and since the only evidence of the corpus delicti [here, that the beating caused the death] was the opinion of an absent Medical Examiner, the conclusion is inescapable that the jury acted on the information and conclusions stated in the Medical Examiner's Report. This is error of constitutional dimension.
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