State v. Gonzales

• Decision Date: 16 February 2012
• Docket Number: No. 29,763.,29,763.
• Citation: 274 P.3d 151,2012 -NMCA- 034
• Parties: STATE of New Mexico, Plaintiff–Appellant, v. Debbie GONZALES, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

2012 -NMCA- 034

274 P.3d 151

STATE of New Mexico, Plaintiff–Appellant,

v.Debbie GONZALES, Defendant–Appellee.

No. 29,763.

Court of Appeals of New Mexico.

Feb. 16, 2012.

Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellant.

Jacqueline L. Cooper, Chief Public Defender, Santa Fe, NM, Lelia L. Hood, Assistant Appellate Defender, Albuquerque, NM, for Appellee.

OPINION

CASTILLO, Chief Judge.

{1} The State listed Dr. Clarissa Krinsky as an expert witness to testify about the circumstances of the death of Jeff Packer, the victim in this case. Dr. Krinsky did not perform the autopsy on Packer, and the State explained that it was not going to offer the autopsy report into evidence. Defendant filed a pre-trial motion to exclude Dr. Krinsky as the State's expert witness arguing that because Dr. Krinsky did not perform the autopsy, allowing her to testify would violate Defendant's Sixth Amendment right to confront a witness against her—in this case the author of the autopsy report itself, who was not going to testify. The district court granted the motion. We hold that based on the record before us, the complete exclusion of the testimony of Dr. Krinsky was error. We reverse and remand with instructions to proceed with a trial to evaluate Dr. Krinsky's status as a witness and her testimony within the boundaries of the Confrontation Clause of the Sixth Amendment and the New Mexico rules of evidence.

I. BACKGROUND

{2} This case comes to us on interlocutory appeal. Because a trial has not been held, we rely only on the information set forth in the record and in the August 6, 2009, hearing before the district court on the motion to exclude the witness. Defendant was charged with second degree murder for the stabbing death of Packer. Dr. Timothy Williams, a forensic pathology fellow at the Office of Medical Investigator (OMI), performed the autopsy on Packer. Dr. Williams now lives in the state of Washington, and the State claims it elected not to bring him back to New Mexico to testify as to his autopsy report because of “expense and logistical difficulty.” Although the State has represented that it will not seek to introduce the autopsy report itself into evidence, its witness list included Dr. Krinsky, another OMI forensic pathologist. Defendant filed a motion to exclude Dr. Krinsky as a witness, and the district court granted the motion.

II. DISCUSSIONA. Autopsy Report

{3} We begin by disposing of a preliminary matter—whether the autopsy report should be considered testimonial and therefore subject to the protections of the Sixth Amendment under Melendez–Diaz v. Massachusetts, 557 U.S. 305, ––––, 129 S.Ct. 2527, 2531–32, 174 L.Ed.2d 314 (2009). Although the Supreme Court did not decide the issue of autopsy reports in Melendez–Diaz, it observed that “[s]ome forensic analyses, such as autopsies ... cannot be repeated,” and therefore the Confrontation Clause is crucial in such instances to protect a defendant's Sixth Amendment rights. Id. at –––– n. 5, 129 S.Ct. at 2536 n. 5.

{4} Just recently, the Court held that a document “created solely for an evidentiary purpose, ... made in aid of a police investigation, ranks as testimonial.” Bullcoming v. New Mexico ( Bullcoming II), –––U.S. ––––, ––––, 131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011) (internal quotation marks and citation omitted). Some jurisdictions, even in the wake of Melendez–Diaz, hold that autopsy reports are in a separate category distinct from other forensic reports and consider them to be non-testimonial. See George M. Tsiatis, Note, Putting Melendez–Diaz on Ice: How Autopsy Reports Can Survive the Supreme Court's Confrontation Clause Jurisprudence, 85 St. John's L.Rev. 355, 381 (2011) (declaring that autopsy reports are “precariously positioned” and worthy of “special consideration”). In Jaramillo, we recently decided that an autopsy report submitted into evidence was considered testimonial when done in support of a law enforcement homicide investigation and for use in prosecution of a criminal case. State v. Jaramillo, 2012–NMCA–029, ¶¶ 13–14, ––– N.M. ––––, 272 P.3d 682 (2011). In the case before us, the State has represented that it will not seek to introduce the autopsy report. Consequently, we need not decide whether the autopsy report in this case would be testimonial hearsay. Our question is limited to whether Defendant's Confrontation Clause rights under the New Mexico and United States constitutions prohibit Dr. Krinsky from testifying as an expert witness as to the circumstances of Packer's death. After our opinion in Jaramillo and the Supreme Court's recent opinion in State v. Cabezuela, 2011–NMSC–041, ¶¶ 48–52, 150 N.M. 654, 265 P.3d 705 (discussing the admissibility of testimony from a pathologist who had been present at the autopsy, but had not performed it and relied on records prepared by the other doctor), we conclude that guidelines for the district court's work on this question exist, but that the question was not adequately analyzed with regard to Krinsky's proposed testimony. Our explanation follows.

B. Standard of Review

{5} We have two standards of review in this case. “Questions of admissibility under the Confrontation Clause are questions of law, which we review de novo.” State v. Aragon, 2010–NMSC–008, ¶ 6, 147 N.M. 474, 225 P.3d 1280. Generally, we review admissibility of evidence, including expert opinion, for an abuse of discretion. See State v. Alberico, 116 N.M. 156, 169, 861 P.2d 192, 205 (1993).

C. Dr. Krinsky's Testimony

{6} In the case before us, the district court relied on the Confrontation Clause and determined that because Dr. Krinsky had not conducted the autopsy of Packer, she could not testify to his manner of death. Both the United States and New Mexico constitutions use the same words to guarantee the right of a criminal defendant at trial “to be confronted with the witnesses against him[.]” U.S. Const. amend. VI; N.M. Const. art. II, § 14. The Sixth Amendment applies to the states through the Fourteenth Amendment. State v. Lopez, 2000–NMSC–003, ¶ 14, 128 N.M. 410, 993 P.2d 727. “The Confrontation Clause guarantees the accused in a criminal trial the right to be confronted with the witnesses against him, regardless of how trustworthy the out-of-court statement may appear to be.” State v. Mendez, 2010–NMSC–044, ¶ 28, 148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted).

{7} The State sought to introduce the testimony of Dr. Krinsky as an expert witness. Under Rule 11–702 NMRA, a witness who qualifies as an expert “by knowledge, skill, experience, training or education” may testify if such “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” Rule 11–703 NMRA, which tracks with the Federal Rule of Evidence 703, describes the bases of expert testimony:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

Rule 11–703 (emphasis added). Rule 11–703 also states that otherwise inadmissible facts or data “shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.” “However, the disclosure of this otherwise inadmissible information is to assist the jury in evaluating the expert's opinion, not to prove the substantive truth of the otherwise inadmissible information.” United States v. Pablo, 625 F.3d 1285, 1292 (10th Cir.2010). “[W]here an expert witness discloses otherwise inadmissible out-of-court testimonial statements on which she based her opinion, the admission of those testimonial statements under Rule 703 typically will not implicate a defendant's confrontation rights because the statements are not admitted for their substantive truth.” Pablo, 625 F.3d at 1292.

{8} The Confrontation Clause and Rule 703 can be at odds. As the 10th Circuit pointed out in Pablo, there is a danger that prosecutors will use surrogate witnesses disguised as experts in order to introduce evidence that otherwise would trigger the Sixth Amendment's Confrontation Clause:

If an expert simply parrots another individual's testimonial hearsay, rather than conveying her independent judgment that only incidentally discloses testimonial hearsay to assist the jury in evaluating her opinion, then the expert is, in effect, disclosing the testimonial hearsay for its substantive truth and she becomes little more than a backdoor conduit for otherwise inadmissible testimonial hearsay.

Pablo, 625 F.3d at 1292. The Committee Commentary to Rule 11–703 states that the rule

is intended to strike a balance between an expert's need to rely upon sources of information used in the expert's field in arriving at decisions, but at the same time to avoid using the expert witness as a conduit for inadmissible evidence to be transmitted to the jury and improperly used as substantive evidence.

{9} Thus, while there is no argument that under the rules of evidence an expert may rely for his or her opinion on facts and data that themselves are not admissible, the question remains whether the inclusion of underlying facts or data from another source in an expert's testimony in a given circumstance is admissible or violates the constitutional rights of a criminal defendant. To answer this question, we look for guidance from recent United States Supreme Court, New Mexico and Tenth Circuit cases as we analyze this problem.

1. United States...