Rollins v. State

• Decision Date: 05 May 2006
• Docket Number: No. 19 September Term, 2005.,19 September Term, 2005.
• Citation: 897 A.2d 821,392 Md. 455
• Parties: Wesley Allen ROLLINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 821

897 A.2d 821

392 Md. 455

Wesley Allen ROLLINS v. STATE of Maryland.

No. 19 September Term, 2005.

Court of Appeals of Maryland.

May 5, 2006.

COPYRIGHT MATERIAL OMITTED

Stacy W. McCormack, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for Petitioner/Cross-Respondent.

Edward J. Kelley, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD. on brief), Baltimore, for Respondent/Cross-Petitioner.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

GREENE, Judge.

After a jury trial in the Circuit Court for Baltimore County, petitioner, Wesley Allen Rollins, was convicted of the crimes of first-degree felony murder, second-degree murder, robbery, and burglary relating to the death of Irene Ebberts. Petitioner seeks review of the judgment of the Court of Special Appeals affirming his convictions. We granted certiorari, Rollins v. State, 387 Md. 462, 875 A.2d 767 (2005), to review the denial of petitioner's pretrial motion to exclude the testimony of deputy medical examiner, Dr. Mary G. Ripple, allegedly derived from "hearsay information unrelated to medical findings" in the autopsy report for Ms. Ebberts that was prepared by former Assistant Medical Examiner, Dr. Joseph Pestaner. Petitioner alleges that because Dr. Ripple's opinion was based on hearsay statements contained in the autopsy report from witnesses who may or may not testify at trial, Rollins's right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and under Article 21 of the Maryland Declaration of Rights¹ would be violated by the admission of such testimony. In addition, we shall review the trial court's alleged error in the admission of Dr. Ripple's expert testimony relating to the time and manner of Ms. Ebberts's death.

Petitioner presents two questions for our review, which we have rephrased:²

1. Did the admission of the autopsy report in the instant case violate the petitioner's Sixth Amendment right to confrontation?

2. If preserved, did the trial court err in allowing the medical examiner to render an expert opinion regarding the cause and time of death of Ms. Ebberts?

For the reasons stated below, we answer both questions in the negative and affirm the judgment of the intermediate appellate court. We hold that the autopsy report, as redacted, contained non-testimonial hearsay statements in nature that were admissible under either the business or public records exceptions to the hearsay rule. We further hold that, under the facts of the instant case, the availability of a witness is immaterial to the question of admissibility of hearsay evidence under either the business or public records exception. Opinions, speculation, and other conclusions drawn from the objective findings in autopsy reports are testimonial and should be redacted before the report is admitted into evidence. Because all testimonial statements in nature were redacted from the autopsy report prepared by Dr. Pestaner prior to its admission into evidence, and because the autopsy report fit within the business and public records hearsay exceptions, petitioner's rights under the Confrontation Clause were not violated.

Facts

The facts surrounding the death of Ms. Ebberts were detailed by the intermediate appellate court:

On October 19, 2001, John Ebberts called his Uncle, William Garland, and asked him to determine whether his mother, the victim, seventy-one year old Irene Ebberts, was all right. Upon arriving at the victim's house, Garland, his brother, and his brother's wife, noticed the screen door and front door were open. They entered the home and found the victim lying in her bed. Although her oxygen machine was still operating, she was unresponsive to Garland.

The paramedics subsequently arrived, responding to a "cardiac arrest" call from Garland, and pronounced the victim deceased upon arrival. After recounting the victim's poor health and recognizing "no signs of trauma," the paramedics turned off the victim's oxygen machine and the police arrived shortly thereafter. Baltimore County Police Officer Richard McCampbell was the first to arrive at the scene and the victim's relatives explained that the victim was in poor physical health. Officer McCampbell observed an open window near the victim, which had "dirt and debris" on the window sill, and noticed there was a garbage can adjacent to the open window outside the home. He subsequently contacted the Baltimore County Homicide Unit with what he deemed a "suspicious death." Homicide Detective Childs arrived and, after noting the same observations Officer McCampbell had made, discovered that the pillows were in the middle of the bed without covers, as well as "some evidence of ransacking or searching the bedroom." During the investigation, officers discovered that cash and jewelry boxes belonging to the victim were missing. The victim's neighbor, the appellant, became a suspect after his girlfriend provided the officers with information, including the fact that [Rollins] told her he could kill the victim by "putting a pillow over her head."

Rollins v. State, 161 Md.App. 34, 42-43, 866 A.2d 926, 930-31 (2005) (footnote omitted).

Petitioner was arrested on October 24, 2001, and during questioning admitted to breaking into Ms. Ebberts's house to "borrow" money, but denied harming her. He was consequently charged with burglary on that same day. On October 20, 2001, Dr. Pestaner noted on the victim's death certificate that the cause of death was "pending," and on October 29, 2001, Dr. Pestaner concluded, as stated in the autopsy report, that the cause of death was "smothering" and the manner of death was "homicide." Dr. Pestaner's autopsy report included the following pathologic diagnoses determining the cause of Ms. Ebberts's death: (I) "[s]mothering;" (II) "[h]ypetensive cardiovascular disease;" (III) "[l]ung, bronchopneumonia;" (IV) "[c]hronic bronchitis and pulmonary emphysema;" and (V) "[p]leural adhesions." In the "Opinion" portion of the autopsy report, Dr. Pestaner noted that Ms. Ebberts had died of "smothering, a lack of oxygen from covering the nose and mouth." Evidence of smothering included "hemorrhage in the mucosa on one side of the mouth." The manner of death noted by Dr. Pestaner was "homicide."

The autopsy report, as redacted, was summarized by the Court of Special Appeals:

The contents of the autopsy report may be summarized as follows: Pages two and three of Dr. Pestaner's report, captioned "INTERNAL EXAMINATION", detail the condition of the victim's body cavities, head, neck, cardiovascular system, respiratory system, liver and biliary system, elementary tract, genitourinary system, recticuloendothelial system, endocrine system and musculoskeletal system. Aside from the pathologies associated with the victim's bronchopneumonia exacerbated by severe emphysema and heart disease, the results of the internal examination were unremarkable. On page one of Dr. Pestaner's report, the external examination revealed a 1 inch contusion on the left elbow and the right arm had a 2? x 1? contusion. Under the caption, "EVIDENCE OF INJURY," Dr. Pestaner indicated: the right buccal mucosa adjacent to the upper denture, in an area adjacent to the root of tooth # 3, had a 1/4? area of superficial hemorrhage. No petechiae were noted of the eyes, mouth, face or airway. The form of the neck was atraumatic. Under "MICROSCOPIC EXAMINATION," the following was noted: "Gum: Acute hemorrhage into underlying non-keratinizing squamous epithelium and into underlying connective tissue Right Forearm: Acute hemorrhage. Scattered iron positivity. Right Arm: acute hemorrhage. Iron stain negative." Dr. Pestaner's conclusions are summed up on the final page of the autopsy report:

This 71 year old white female, Irene Ebberts, died of smothering, a lack of oxygen from covering the nose and mouth. Ms. Ebberts was found dead in bed at her house. Investigation revealed personal property missing and previous threats of harm had been made to smother Ms. Ebberts. Autopsy revealed a sick woman who had significant heart and lung disease and an acute pneumonia was present in the lung. Evidence of smothering³ included hemorrhage in the mucosa on one side of the mouth. The manner of death is homicide. The decedent was not consuming alcoholic beverages prior to death and a comprehensive drug test was negative. There was no evidence of sexual activity.

Id. at 43 n. 1, 866 A.2d at 931 n. 1. The following describes the information surrounding the admission of the autopsy report, the trial judge's redactions, and the intermediate appellate court's conclusions:

As to the contents of the autopsy report to which appellant specifically interposed an objection, the record unequivocally discloses that appellant objected to admission of the report without the testimony of Dr. Pestaner; then he specifically objected to any opinion contained in the report; he also objected to Dr. Ripple's use of the report in formulating her own opinion. Turning to the question of whether all or part of the report was admitted into evidence, we cannot discern from our inspection of the autopsy report contained in the record on appeal that any portion of the report was redacted. The court's statements, however, regarding opinions in the report during the hearing on the Motion to Exclude Testimony of the Medical Examiner, and various references to deletions from the report during examinations of witnesses, indicate that the court did, in fact, redact the cause and manner of death.

* * * *

During the course of the hearing on the Motion to Exclude the Testimony of the Medical Examiner, the court had decided that "the only thing I can see here that is an opinion is disease . . . smothering . . . [and] homicide" and disease; the court indicated that it would "make sure that the doctor will say that the rest of these are factual observations." Accordingly,...