People v. Freycinet

• Citation: 892 N.E.2d 843,11 N.Y.3d 38
• Decision Date: 26 June 2008
• Docket Number: No. 119,119
• Parties: The PEOPLE of the State of New York, Respondent v. Gary FREYCINET, Appellant.
• Court: New York Court of Appeals

892 N.E.2d 843

11 N.Y.3d 38

The PEOPLE of the State of New York, Respondent v. Gary FREYCINET, Appellant.

No. 119

Court of Appeals of New York.

June 26, 2008.

Appellate Advocates, New York City (Winston McIntosh and Lynch W.L. Faley of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Jennifer Hagan and John M. Castellano of counsel), for respondent.

OPINION OF THE COURT

SMITH, J.

In People v. Rawlins, 10 N.Y.3d 136, 855 N.Y.S.2d 20, 884 N.E.2d 1019 (2008), we considered whether fingerprint comparison reports and the report of a DNA technician were "testimonial" evidence under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This case raises a similar question about an autopsy report. Analyzing the question in the way Rawlins requires, we conclude that the redacted report at issue here was not testimonial.

I

Defendant's girlfriend died of a knife wound, and defendant was indicted for murder, manslaughter and other crimes. His defense was that he killed her either justifiably or by accident. He did not testify at trial, but relied on statements he made to police and a prosecutor after his arrest, in which he described the event as occurring when he and the victim were lying next to each other. According to his account, the two had an argument; the victim punched him and reached first for an iron and then for a knife; he reached the knife before she did; she grabbed his wrist; and the knife "just hit her."

Dr. John Lacy, of the New York City Office of Chief Medical Examiner, performed an autopsy on the victim. Dr. Lacy later moved to Seattle, and he did not return for the trial. His report, redacted to eliminate his opinions as to the cause and manner of the victim's death, was received in evidence over defendant's Confrontation Clause objection.

The report said that Dr. Lacy observed "a single perforating stab wound of the face and neck and minor blunt force injury of the face." It said that the stab wound was on the "left face in front of the left ear," and that it was "oriented obliquely with one blunt angle close to the ear and one sharp angle directed toward the chin." The report described the "wound track," as passing "through the subcutaneous tissue and posterior scalp." The report gave the location of the "exit wound" as "just within the hairline of the back of the neck." It also noted a small round abrasion on the left cheek.

Dr. Corinne Ambrosi of the Medical Examiner's office testified as an expert for the People, giving opinions based on the facts in Dr. Lacy's report. She concluded that the cause of the victim's death was bleeding from the stab wound. She also said that the knife, when it entered the victim's neck, was positioned with its blunt edge toward the ear and its sharp edge "facing more toward the front." She said that the wounds were "consistent with a right-handed person as a stabber on top of the person being stabbed" and "with the stabber using force."

In closing argument, the People relied both on Dr. Ambrosi's opinions and Dr. Lacy's report to attack defendant's version of the facts. The prosecutor argued that defendant must have been on top of the victim, not beside her as he said, and that so deep a wound, "from the front of her face to the back of her scalp," could not have been inflicted by accident.

The trial judge, sitting without a jury, acquitted defendant of murder but convicted him, among other things, of manslaughter in the second degree. The Appellate Division affirmed. A judge of this Court granted leave to appeal, and we now affirm.

II

The Confrontation Clause of the United States Constitution says: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him" (U.S. Const. Amend. VI). Crawford and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) establish that this clause does not bar the use of out-of-court statements by declarants who are not "witnesses"; and Crawford held that witnesses are "those who `bear testimony'" (Crawford, 541 U.S. at 51, 124 S.Ct. 1354). The Supreme Court has not defined "testimony" in this context, though it has said that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not" (id.). The only issue on this appeal is whether the redacted version of Dr. Lacy's autopsy report was "testimony" as that term is used in Crawford.

The question of when reports of scientific procedures are and are not testimonial is one we examined at length in Rawlins. In that case, we refused to establish an "absolute rule" that documents within the "business records" exception to the hearsay rule are never testimonial, noting that under New York law records of law enforcement agencies may be business records (10 N.Y.3d at 149-150, 855 N.Y.S.2d 20, 884 N.E.2d 1019). Instead, we discussed "various indicia of testimonially" (id. at 151, 855 N.Y.S.2d 20, 884 N.E.2d 1019). Among them are: the extent to which the entity conducting the procedure is "an `arm' of law enforcement" (State v. Crager, 116 Ohio St.3d 369, 379, 879 N.E.2d 745, 753 [2007], quoted in Rawlins, 10 N.Y.3d at 153, 855 N.Y.S.2d 20, 884 N.E.2d 1019); whether the contents of the report are a contemporaneous record of objective facts, or reflect the exercise of "fallible human judgment" (10 N.Y.3d at 154, 855 N.Y.S.2d 20, 884 N.E.2d 1019); the question — closely related to the previous two — of whether a pro-law-enforcement bias is likely to influence the contents of the report (id. at 153, 855 N.Y.S.2d 20, 884 N.E.2d 1019); and whether the...