Rosario v. State, 5D13–1740.

Decision Date28 August 2015
Docket NumberNo. 5D13–1740.,5D13–1740.
Citation175 So.3d 843
PartiesLuis Gerardo ROSARIO, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.



The primary issue we address in this case is whether an autopsy report prepared pursuant to chapter 406, Florida Statutes (2001), is testimonial hearsay under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Following a jury trial, Appellant, Luis Rosario, was convicted of aggravated child abuse and first-degree murder of A.S., a four-year-old boy. He argues that his Sixth Amendment right to confront witnesses against him was violated at trial for two reasons. First, the trial court allowed the admission of the autopsy report of A.S. into evidence without requiring the testimony of the medical examiner who prepared the autopsy report. Second, the trial court allowed a surrogate medical examiner, who did not perform or participate during the autopsy, to testify as to the cause of death listed within the report. We agree with both grounds, but under the specific factual circumstances of this case, conclude that these errors were harmless beyond a reasonable doubt. Accordingly, we affirm.

I. Statement of the Case and Facts

In 2001, Appellant was living with A.S.'s mother and her two children. On April 15, 2001, the four returned home from a pool party. As A.S. was exiting the vehicle, he became tangled in his seatbelt and fell, striking his head on the concrete below. A.S. let out an excruciating scream and began to cry. Appellant then took A.S. inside, gave him a shower, and put him to bed. According to A.S.'s mother, A.S. continued to cry and she could hear Appellant telling him to “shut up” before she went to bed.

In the middle of the night, the mother was awakened by the sounds of Appellant making noises in the house as well as in the garage.1 When Appellant noticed that the mother was awake, he told her that [A.S.] is not breathing.” The mother immediately tried to get emergency help for her son. However, according to the mother, Appellant would not let her call 9–1–1. Instead, he retrieved a rifle and a handgun, walked back and forth between A.S.'s room and hers, and told her that he would kill her each time he walked by. Approximately one hour later, the mother was able to get out of her bedroom but noticed that all the house phones had been moved. Although still threatening her, Appellant eventually gave her a phone to call 9–1–1, which she did. By this time, A.S. had white foam coming from his mouth, his lips were purple, and his body was cold. She was unable to resuscitate him.

In the early morning hours of April 16, 2001, A.S. was pronounced dead at the hospital. Doctor Shashi Gore, the then-Chief Medical Examiner for the district, conducted the autopsy of A.S.'s body. As described in the autopsy report, there are five possible manners of death: (1) accident; (2) suicide; (3) homicide; (4) natural; and (5) undetermined. In his original autopsy report dated April 16, 2001, Dr. Gore could not conclude the manner in which A.S. had died; he listed the cause of death as “undetermined.”

On November 15, 2001, Dr. Gore filed an addendum to his autopsy report, mentioning contusions in A.S.'s mouth and an abrasion on the back of his ear, but he did not change his original conclusion as to the cause of death. However, in mid-February of 2002, Dr. Gore met with members of law enforcement and with doctors from Child Protective Services (“CPS”). The next day, Dr. Gore changed his conclusion as to the cause of death to “homicide,” finding that the death was caused by asphyxiation based on [n]ew evidence.” However, Dr. Gore did not identify the “new evidence” in the autopsy report.

Appellant continued to reside with A.S.'s mother for approximately two to four months after the child's death. When first interviewed by law enforcement after the death of her son, the mother never told the police that Appellant had threatened her that night or that he prevented her from calling the police. It was not until seven or eight years later, in 2008 or 2009, that she first advised law enforcement of Appellant's actions, explaining that she did not tell them previously because she “was very scared.” In April 2010, approximately nine years after the death of A.S., Appellant was indicted for first-degree murder and aggravated child abuse of A.S.

At some point after the autopsy of A.S., Dr. Gore was removed as the Chief Medical Examiner for the district and was replaced by Dr. Jan C. Garavaglia. The State listed Dr. Garavaglia as its medical expert for trial and did not include Dr. Gore as one of its witnesses. During her pretrial deposition, Dr. Garavaglia testified that she did not participate in any way during the autopsy of A.S. Based upon this testimony and Appellant's belief that the State did not intend to call Dr. Gore as a trial witness, Appellant filed a motion in limine to preclude the State from introducing the testimony of Dr. Garavaglia. Appellant raised no issue with the qualifications of Dr. Garavaglia. However, citing to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), he argued that Dr. Garavaglia's testimony would violate his constitutional right to confront witnesses against him because her testimony would be “based upon a review of an autopsy report by someone not physically present at the autopsy.”

A hearing on Appellant's motion in limine was held shortly before trial, which took place in 2013, almost 12 years after A.S.'s death. At this hearing, the State advised the court that it did not intend to introduce the autopsy report into evidence at trial. Based upon this representation, the trial court orally announced that it was denying the motion in limine pursuant to Florida case law that permits a surrogate medical examiner to provide his or her opinion as to a victim's cause of death, despite having not performed the autopsy.2

At trial, the State's theory of the case was that Appellant suffocated A.S. to get him to stop crying. Dr. Gore did not testify at trial. However, notwithstanding the State's prior representation at the motion in limine hearing, Dr. Gore's autopsy report was offered and allowed into evidence over Appellant's Confrontation Clause objection.3 Additionally, Dr. Garavaglia testified that A.S.'s death was due to a homicide and that A.S. was asphyxiated based upon the “compression of [his] neck face down into something.”

Appellant's defense was that there was no reliable evidence that A.S.'s death was a homicide. Appellant did not testify at trial. His only witness was Dr. Stephen Nelson, the Chief Medical Examiner for another district in Florida. Dr. Nelson was the prior chairman of the State of Florida's Medical Examiners Commission and was involved in Dr. Gore's removal from office. Based upon his review of Dr. Gore's original and amended autopsy report, he concluded that A.S.'s cause of death was undetermined, as Dr. Gore had initially reported. Dr. Nelson noted other potential causes of death, including signs of an infectious process present in A.S.'s lungs and that A.S.'s spleen was three to four times larger than the normal size.

Both Dr. Garavaglia and Dr. Nelson testified that they considered Dr. Gore to be generally unreliable. According to Dr. Garavaglia, He's had trouble as a medical examiner.”4 Both doctors also testified that the autopsy report of A.S. contained errors and inconsistencies. For those reasons, Dr. Garavaglia did not form her opinion based on the autopsy report. Rather, she testified that her conclusion was formed from her “independent evaluation of the photographs” and her personal review of a preserved section of A.S.'s brain that was removed by a neuropathologist near the time of A.S.'s death.

At the conclusion of the trial, the jury found Appellant guilty as charged, and the trial court sentenced him to serve life in prison for the first-degree murder charge and thirty years in prison for the aggravated child abuse charge with the sentences to run concurrently. Appellant timely filed a motion for new trial, asserting, among other things, that the trial court erred in denying his pretrial motion in limine and in admitting Dr. Gore's autopsy report at trial, as it violated the Confrontation Clause. The trial court denied the motion for new trial and this appeal followed.

II. The Confrontation Clause
A. United States Supreme Court Precedent

The Sixth Amendment to the United States Constitution grants a criminal defendant the right to confront witnesses against him at trial. Amend. VI, U.S. Const. (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....”). The Sixth Amendment is applicable to the states via the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). “In considering a trial court's ruling on admissibility of evidence over an objection based on the Confrontation Clause, our standard of review is de novo. McWatters v. State, 36 So.3d 613, 637 (Fla.2010) (quoting Milton v. State, 993 So.2d 1047, 1048 (Fla. 1st DCA 2008) ).

The seminal case pertaining to a defendant's Sixth Amendment right to confront witnesses against him is Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court addressed whether statements made by the defendant's wife during a police interrogation were subject to the requirements of the Confrontation Clause. Id. at 38, 124 S.Ct. 1354. The Court held that the right to confront witnesses applies not only to in-court testimony, but also to “testimonial hearsay.” See id. at 59, 68–69, 124 S.Ct. 1354. The...

To continue reading

Request your trial
2 cases
  • Commonwealth v. Brown
    • United States
    • Pennsylvania Supreme Court
    • June 1, 2018
    ...Eagle , 835 N.W.2d 886, 898–99 (S.D. 2013) ; Young v. United States , 63 A.3d 1033, 1048 (D.C. 2013) ; Rosario v. State , 175 So.3d 843, 861–62 (Fla. Dist. Ct. App. 2015).5 To establish that the defendant's actions caused the victim's death, this Court has also held that "the Commonwealth i......
  • State v. Hutchison, E2012-02671-SC-R11-CD.
    • United States
    • Tennessee Supreme Court
    • February 5, 2016
    ...examiner and was not certified or sworn, so it would not be considered testimonial by Justice Thomas). But see Rosario v. State, 175 So.3d 843, 858 (Fla.Dist.Ct.App.2015)("[N]ot only does the [autopsy] report satisfy the primary purpose test, it is also sufficiently solemn."). Therefore, we......
1 books & journal articles
  • Evidence
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...formed her own independent conclusion as to the cause of death based on her own personal observations or confirmations. Rosario v. State, 175 So. 3d 843 (Fla. 5th DCA 2015) Hearsay is admissible in a suppression hearing. Further, when an officer testifies to the things he was told, and the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT