State v. Mattox

• Decision Date: 14 February 2017
• Docket Number: No. 2015AP158–CR,2015AP158–CR
• Citation: 373 Wis.2d 122,890 N.W.2d 256
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Rozerick E. MATTOX, Defendant–Appellant.
• Court: Wisconsin Supreme Court

373 Wis.2d 122

890 N.W.2d 256

STATE of Wisconsin, Plaintiff–Respondent,

v.Rozerick E. MATTOX, Defendant–Appellant.

No. 2015AP158–CR

Supreme Court of Wisconsin.

Oral Argument: October 26, 2016

Opinion Filed: February 14, 2017

For the defendant-appellant, there was a brief and oral argument by Leon W. Todd, assistant state public defender.

For the plaintiff-respondent the cause was argued by Luke N. Berg, deputy solicitor general, with whom on the brief was Misha Tseytlin, solicitor general and Brad D. Schimel, attorney general.

REBECCA GRASSL BRADLEY, J.

¶ 1 The court of appeals certified this case to the court to determine whether the admission of a toxicology report through a medical examiner's testimony violated Rozerick E. Mattox's Sixth Amendment right to confrontation. After a bench trial,¹ Mattox was convicted of first-degree reckless homicide for delivering heroin that caused S.L.'s death.² Specifically, the certified question asks:

Does it violate a defendant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution for the State to introduce at trial a toxicology report identifying certain drugs in a deceased victim's system and/or testimony of a medical examiner basing his/her cause-of-death opinion in part on the information set forth in such a report, if the author of the report does not testify and is not otherwise made available for examination by the defendant?

¶ 2 The certification explains that two recent court of appeals decisions reached opposite conclusions in heroin overdose homicide cases involving toxicology reports. See State v. Heine , 2014 WI App 32, 354 Wis.2d 1, 844 N.W.2d 409 ; State v. VanDyke , 2015 WI App 30, 361 Wis.2d 738, 863 N.W.2d 626. During the underlying trials in both Heine and VanDyke , the toxicology reports were used during testimony by the medical examiners who performed the autopsies and relied on the toxicology reports to determine the cause of death in each case. The lab analyst who signed the toxicology reports did not testify. In Heine , the court of appeals held the toxicology report could be used without violating the confrontation right. Id. , 354 Wis.2d 1, ¶¶1, 15, 844 N.W.2d 409. But in VanDyke , it held the toxicology report was "testimonial"; therefore, according to the court of appeals, the report's admission through the medical examiner's testimony violated the Confrontation Clause under Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (admission of "testimonial" out-of-court statements without affording the defendant the opportunity to cross-examine the declarant violates the Confrontation Clause). VanDyke , 361 Wis.2d 738, ¶¶14–17, 863 N.W.2d 626. The certification notes that neither Heine nor VanDyke sought review in this court but that "a supreme court decision could lay this issue to rest for the bench and bar."

¶ 3 We answer the certified question in the negative and therefore overrule VanDyke . Admitting this type of toxicology report and the medical examiner's related testimony does not violate a defendant's confrontation right because the toxicology report was not "testimonial" under the primary purpose test recently set forth by the United States Supreme Court in Ohio v. Clark , ––– U.S. ––––, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015). Under that test, when the statement's primary purpose is something other than to "creat[e] an out-of-court substitute for trial testimony" its admission does not implicate the Confrontation Clause. Id. at 2180, 2183 (quoting Michigan v. Bryant , 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) ).

¶ 4 The primary purpose of the toxicology report in this case was to assist the medical examiner in determining the cause of death. All objective indicators show the report was not created for an evidentiary purpose: (1) the medical examiner testified she requested the toxicology analysis as a part of her autopsy protocol; (2) the toxicology report was not sworn, certified, or in the form of an affidavit and it comprised only numerals quantifying the concentration of substances contained in S.L.'s blood, urine, and tissue samples without any analysis or interpretation of those numbers; (3) the police were not involved in the autopsy or toxicology requests; (4) the report was not requested by or reported directly to law enforcement; (5) according to the record, the analyst who signed the report had no knowledge the report related to a crime; and (6) the report did not give an opinion on the cause of death or any element of the crime for which Mattox was charged. Accordingly, the admission and use at trial of this toxicology report did not violate Mattox's Sixth Amendment right to confrontation.³ We affirm the judgment convicting Mattox.

I. BACKGROUND

¶ 5 At about 2:30 a.m. on February 15, 2013, S.L.'s roommate wanted to talk to S.L. and tried to get S.L. to open his locked bedroom door. After receiving no response, the roommate broke open the door to the bedroom, where he found S.L. deceased.

¶ 6 City of Waukesha police and a Waukesha County deputy medical examiner came to the apartment. They found S.L. hunched over on the bedroom floor with drug paraphernalia on a chair nearby. They also found some non-prescription ibuprofen and prescription Clonazepam

, a drug used to treat anxiety. Waukesha County Deputy Medical Examiner, Nichol Wayd, spoke with police at the scene to get background facts, took pictures, and transported S.L.'s body to the morgue for an autopsy.

¶ 7 After the body was removed from the scene, the police, under the supervision of City of Waukesha Detective Thomas Casey, collected the drug paraphernalia from S.L.'s room, including multiple syringes (one of which had been used recently), a small metal cooker, a tourniquet

, and some cotton balls. These items were submitted to the State Crime Lab for analysis.

¶ 8 On February 15, 2013, Dr. Zelda Okia, an associate medical examiner for Waukesha County, performed the autopsy on S.L.'s body in order to determine the cause of death. The autopsy protocol included examining the body and collecting and sending biological samples to a toxicology lab. The Waukesha County Medical Examiner's Office used the St. Louis University toxicology lab because a board certified toxicologist runs the lab and Waukesha County does not have the equipment to conduct its own toxicology tests. During the autopsy, Dr. Okia noted pulmonary edema

, cerebral edema, 13 recent needle puncture marks in S.L.'s arms, and elevation in the weight of his lungs—all signs indicating death caused by drug overdose. Dr. Okia collected samples of S.L.'s blood, urine, and tissue near the injection sites, as well as one control tissue sample. She sent these samples to the toxicology lab with the following information: (1) S.L.'s name, age, weight, and race; (2) a history reading "Found unresponsive at Home"; (3) a listing of medications available as "Clonazepam

, Ibuprofen"; and (4) a request to "Please test all above specimens" for "Alcohol" and "General Unknown." The lab received the specimens on February 19, 2013, and the toxicology report was completed on March 13, 2013.

¶ 9 The toxicology report, which is attached in the Appendix, lists the substances for which each sample was tested, as well as either the word "negative" or "positive." A number appears next to any substance identified within the sample. As pertinent here, the toxicology report indicates the following: The blood sample contained:

• "0.61 MICROGRAMS/ML" of total morphine

;

• "LESS THAN 0.05 MICROGRAMS/ML" of "6–MONOACETYLMORPHINE"; and

• "0.27 MICROGRAMS/ML" of free morphine.

The urine sample contained:

• "0.74 MICROGRAMS/ML" of codeine

;

• "GREATER THAN 4 MICROGRAMS/ML" of morphine ;

• "2.5 MICROGRAMS/ML" of "6–MONOACETYLMORPHINE"; and

• "0.13 MICROGRAMS/ML" of hydromorphone.

The tissue samples, including the control sample, all contained measurable amounts of morphine

:

• "0.28 MICROGRAMS/GM" in "Antecubital vein and fat";• "0.14 MICROGRAMS/GM" in "Right anterior forearm vein and fat";

• "0.16 MICROGRAMS/GM" in "Right ventral forearm vein and fat";

• "0.11 MIRCROGRAMS/GM" in "Right anterior forearm vein and fat"; and• "0.14 MIRCROGRAMS/GM" in "Left antecubital vein and fat."

Dr. Christopher Long signed the toxicology report but the report was not sworn or certified and does not contain any affidavit-like assertions. The report does not explain the significance of any of the numbers nor does it provide an interpretation of the chemical levels.

¶ 10 Upon receiving the toxicology report, Dr. Okia completed her autopsy report. Although the autopsy report is not dated, it must have been completed after March 13, 2013, because it lists the blood sample morphine

quantities from the toxicology report. Dr. Okia's autopsy report concludes that S.L.'s cause of death was "Acute Heroin Intoxication." The autopsy report does not indicate any police involvement with the autopsy or the toxicology lab. The police were not involved in requesting, sending, or receiving the biological samples from or to the toxicology lab.

¶ 11 The City of Waukesha Police investigation into S.L.'s death proceeded independently from the county medical examiner's office. The only connection in this record between the medical examiner's office and the police is the fact that both responded to the scene and together notified S.L.'s next of kin of his death. Dr. Wayd also sent to police her investigative report, which is required in all State investigations and routinely produced. The report contains a summary of the medical examiner's observations from the scene and it documents the notification of S.L.'s next of kin regarding his death.

¶ 12 The independent police investigation resulted in a conclusion by law enforcement that S.L. died from an overdose of heroin supplied by Mattox. The State Crime Lab certified, in an October 2013 report, that the recently used syringe and metal cooker police collected from S.L.'s apartment tested...