People v. Hall

• Decision Date: 21 April 2011
• Citation: 84 A.D.3d 79,2011 N.Y. Slip Op. 03193,923 N.Y.S.2d 428
• Parties: The PEOPLE of the State of New York, Respondent,v.Ralph HALL, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 79

923 N.Y.S.2d 428

2011 N.Y. Slip Op. 03193

The PEOPLE of the State of New York, Respondent,

v.Ralph HALL, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

April 21, 2011.

Steven Banks, The Legal Aid Society, New York (Kerry Elgarten of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Amyjane Rettew of counsel), for respondent.LUIS A. GONZALEZ, P.J., PETER TOM, JAMES M. CATTERSON, KARLA MOSKOWITZ, ROSALYN H. RICHTER, JJ.RICHTER, J.

In this appeal from a first degree murder conviction, defendant asserts that under Melendez–Diaz v. Massachusetts, 557 U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 [2009], the admission of an unredacted autopsy report violated his rights under the Confrontation Clause. However, under People v. Freycinet, 11 N.Y.3d 38, 862 N.Y.S.2d 450, 892 N.E.2d 843 [2008] ), which is binding upon us, the factual part of the autopsy report is nontestimonial and admissible, and, in this case, Melendez–Diaz does not mandate a contrary result.

At trial, Dr. Lara Goldfedder, a medical examiner with the Office of Chief Medical Examiner (OCME), testified for the prosecution about the cause of the victim's death. The autopsy was performed by Dr. John Matthew Lacy, a medical examiner who had moved out of state. Dr. Goldfedder explained that she had reviewed Dr. Lacy's autopsy report as well as several photographs taken during the autopsy. Based on her familiarity with OCME's practices and procedures, Dr. Goldfedder laid the foundation for admission of the report and photographs as business records. Based on her own review of these materials, Dr. Goldfedder offered her expert opinion that the cause of the victim's death was a gunshot wound to his head. Although during her testimony, Dr. Goldfedder made some references to facts contained in the autopsy report, she emphasized that all of the conclusions she reached were her own.

The Sixth Amendment grants an accused the right to confront the witnesses against him or her—that is, “those who bear testimony” ( Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] [internal quotation marks and citation omitted] ). In Crawford, the Supreme Court held that the Confrontation Clause of the Sixth Amendment prohibits the prosecution from introducing “testimonial” statements of a nontestifying witness unless the witness is unavailable and the defendant had a prior opportunity for cross-examination (541 U.S. at 68, 124 S.Ct. 1354). While not exhaustively defining “testimonial,” the Crawford court noted that testimonial statements typically involve “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact” ( id. at 51, 124 S.Ct. 1354 [internal quotation marks and citation omitted] ).

In Freycinet, the Court of Appeals, applying Crawford, held that the factual portions of the autopsy report in that case were “clearly not testimonial” (11 N.Y.3d at 42, 862 N.Y.S.2d 450, 892 N.E.2d 843). Acknowledging that there is no “absolute rule that documents within the business records exception to the hearsay rule are never testimonial” ( id. at 41, 862 N.Y.S.2d 450, 892 N.E.2d 843 [internal quotation marks and citation omitted] ), and recognizing that “a report of a doctor's findings at an autopsy may reflect more exercise of judgment than the report of a DNA technician” ( id. at 42, 862 N.Y.S.2d 450, 892 N.E.2d 843), the Court nevertheless held that the introduction of the redacted autopsy report into evidence as a business record did not violate the Confrontation Clause.

In rejecting the defendant's argument, the Court of Appeals in Freycinet focused on “various indicia of testimoniality” that it had previously identified in People v. Rawlins, 10 N.Y.3d 136, 151, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008]. These indicia include:

“the extent to which the entity conducting the procedure is an arm of law enforcement; whether the contents of the report are a contemporaneous record of objective facts, or reflect the exercise of fallible human judgment; ... whether a pro-law-enforcement bias is likely to influence the contents of the report; and whether the report's contents are directly accusatory in the sense that they explicitly link the defendant to the crime” ( Freycinet, 11 N.Y.3d at 41, 862 N.Y.S.2d 450, 892 N.E.2d 843 [internal quotation marks and citations omitted] ).

Applying these criteria, the Court found that the admission of the factual part of the autopsy report did not run afoul of the Confrontation Clause.

Although we are bound by decisions of the United States Supreme Court on federal constitutional matters ( see People v. Kin Kan, 78 N.Y.2d 54, 59, 571 N.Y.S.2d 436, 574 N.E.2d 1042 [1991] ), Melendez–Diaz did not explicitly hold that autopsy reports are testimonial. The issue in Melendez–Diaz—the admissibility of sworn drug analysis certificates where no live witness was available for cross-examination—is different from the issue before us. As such, the Court of Appeals' decision in Freycinet is directly on point and applicable to this case. Indeed, in People v. Holguin, 71 A.D.3d 504, 895 N.Y.S.2d 820 [2010], lv. denied 15 N.Y.3d 774, 907 N.Y.S.2d 463, 933 N.E.2d 1056 [2010] ), a post- Melendez-Diaz decision, this Court decided the precise issue presented here and found no basis to reverse the judgment.

Melendez–Diaz neither explicitly overruled Freycinet nor made its holding untenable. Justice Thomas, although joining the majority in Melendez–Diaz, also wrote separately to stress that the drug analysis certificates were “quite plainly affidavits” (557 U.S. at ––––, 129 S.Ct. at 2543 [Thomas, J., concurring] ). He emphasized that he continued to adhere to his position that “the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions” ( id. [internal quotation marks and citation omitted] ). Thus, any holding in Melendez–Diaz, at least insofar as scientific forensic reports are concerned, is arguably limited to the “formalized testimonial materials” to which Justice Thomas referred ( see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 [1977]; State v. Mitchell, 2010 ME 73, ¶ 43, ¶ 47, 4 A.3d 478, 489, 490 [2010] ). Here, the autopsy report, which was unsworn, cannot fairly be viewed as “ formalized testimonial material[ ].”

In Melendez–Diaz, the “ sole purpose ” of the sworn affidavits under Massachusetts law was to provide prima facie evidence of the composition and weight of the controlled substance (557 U.S. at ––––, 129 S.Ct. at 2532). The Melendez–Diaz Court noted that the analysts were unquestionably aware of the affidavits' evidentiary purpose, since that purpose was reprinted on the affidavits themselves ( id.). Thus, the Melendez–Diaz Court found that the analysts' affidavits were “prepared specifically for use at petitioner's trial,” and were testimony subject to the Confrontation Clause ( id. at ––––, 129 S.Ct. at 2540).

In contrast, the mandate of the OCME is “to provide an impartial determination of the cause of death” ( People v. Washington, 86 N.Y.2d 189, 193, 630 N.Y.S.2d 693, 654 N.E.2d 967 [1995] ). As the Court in Freycinet noted, the OCME is not “a law enforcement agency” and is “by law, independent of and not subject to the control of” the prosecutor (11 N.Y.3d at 42, 862 N.Y.S.2d 450, 892 N.E.2d 843 [internal quotation marks and citation omitted] ). Although OCME performs autopsies where the cause of death is suspected to be criminal, its powers and duties also extend to deaths arising, inter alia, “by accident, by suicide, suddenly when in apparent health, [or] when unattended by a physician” (New York City Charter § 557[f][1] ). While it is true that some autopsy reports may later be used in litigation, that does not mean that such reports are “prepared specifically for use at ... trial,” as were the affidavits in Melendez–Diaz, 557 U.S. at ––––, 129 S.Ct. at 2540; see also United States v. Feliz, 467 F.3d 227, 234–235 [2d Cir.2006] ).

Furthermore, Melendez–Diaz did not address the situation here, where a second expert testified and was fully subject to cross-examination. In Melendez–Diaz, no live testimony was offered on the composition and weight of the seized substances. In this case, there was in-court testimony by Dr. Goldfedder, a medical examiner from the same office as the medical examiner who had performed the autopsy. Dr. Goldfedder first testified about her own training and experience in determining the cause and manner of death and the procedures that OCME uses for documenting autopsies. Upon admission of the autopsy report as a business record, Dr. Goldfedder testified as to the date the autopsy was performed, the recorded height and weight of the victim, and the clothes he was wearing. She testified about the two injuries on the victim's body, a gunshot wound in the right temple in which the bullet passed through the brain and lodged in the opposite side of the skull, and a second gunshot wound in which the bullet grazed the victim's shoulder and lodged against the spinal column. Dr. Goldfedder then offered her own expert opinion as to what caused the victim's death. Thus, as in Freycinet, the testifying medical examiner relied upon factual portions of the autopsy report consisting primarily of contemporaneous observations and measurements, but reached conclusions that were entirely her own.

Dr. Goldfedder was thoroughly cross-examined by defense counsel about both the facts contained in the autopsy report as well as the conclusions she reached based on those facts. Defense counsel also elicited testimony from Dr. Goldfedder establishing that the “remains” of the victim provided no information about the shooter such as his identity, height or weight, or whether the shooter was standing or sitting. Defense cou...