Malaska v. State

KEHOE, J. This tragic case arises out of a neighborhood dispute over a No Trespassing sign that ended when appellant, Alexander Eugene Malaska, shot and killed Dennis Liller. After a four-day trial by jury in the Circuit Court for Allegany County, Malaska was convicted of voluntary manslaughter and acquitted of second degree murder. Malaska appeals his conviction and presents three questions for our review, which we have rephrased: I. Did the trial court violate Malaska’s right of confrontation by admitting into evidence Liller’s autopsy report through the testimony of the supervising medical examiner when the physical dissection was performed by a subordinate medical examiner who was not available for cross-examination at trial?

II

Did the trial court err in failing to instruct the jury as to the doctrines of “transferred intent self defense” and “defense of others”?

III

Did the trial court err in denying Malaska’s motion to suppress statements he made during a police interrogation? Applying principles enunciated in Williams v. Illinois, — U.S. -, 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012), and Derr v. State, 434 Md. 88, 103 , 73 A.3d 254 (2013), we conclude that the autopsy report was testimonial in nature and that Malaska’s confrontation rights were satisfied by the supervising ⁵⁰⁰ medical examiner’s availability for cross-examination. The trial court did not abuse its discretion in denying Malaska’s requested “transferred intent self defense” instruction because the substance of the instruction was addressed in other instructions given by the court. Malaska’s contention that the court erred in failing to give a defense of others instructions is not preserved for appellate review.

The court did not err in denying Malaska’s motion to suppress. We will affirm the conviction. Background The State’s Case Liller was fatally shot on March 28, 2012, in the front yard of Malaska’s residence. The sequence of events leading to his death had its origins in a property dispute between the Malaskas and their neighbors.

Malaska, his son, Michael Malaska (“Michael M.”), 1 and Michael M.’s then-fiancee, Kelly Discher, lived in the Malaska home, which was located in a rural area of Allegany County. Liller and Kelly Spangler, his girlfriend, owned property situated adjacent to the Malaska property, which they used as a horse pasture or paddock. Kelly Spangler’s parents, the Robertsons, lived in a home located on the other side of the paddock. Her husband, 2 Michael Spangler, lived in an apartment attached to the Robertson house.

The Malaskas, on the one hand, and Kelly Spangler and Dennis Liller, on the other, claimed ownership of a cluster of trees located between the paddock and the Malaska property. On March 28, 2012, Liller posted a “No Trespassing” sign in the disputed area. When Michael M. and Discher saw the sign, they tore it up and threw the pieces onto the Robertson’s ⁵⁰¹ front lawn. This began a series of heated verbal altercations between the neighbors which culminated in a physical brawl in the Malaska front yard between Liller, Kelly Spangler, and Michael Spangler, on one side, and Michael M., on the other.

As the fight was nearing its end, or immediately thereafter, Malaska, while standing on his front porch, fired a shot from a .22 caliber rifle. According to Kelly Spangler, the shot prompted her to drop to the ground, Liller to run in the opposite direction, and Michael Spangler to take cover behind a tree. Malaska fired at least one additional time and struck Liller in the back as he ran away. The bullet punctured Liller’s aorta and he was dead by the time that emergency personnel reached the scene.

Discher testified that she heard Malaska say “die, [obscenity deleted], die” after Liller was hit by the bullet. Appellant’s Yersion of Events Malaska, who was sixty-nine years old at the time of the incident, testified in his own defense and presented an alternative version of the events. According to Malaska, he was awoken from a nap by the noise emanating from the ongoing brawl in his front yard. He walked to his front door and saw: “Kelly Spangler beating my son with a cane,” “Dennis Liller striking my son with his fists in the face,” and “Mike Spangler kicking my son in the head.” Michael M. was in a sitting position and was “limp,” with his “arms down.” Malaska retrieved a rifle, exited onto the front porch, and then fired “a warning shot in the air.” According to Malaska, the warning shot prompted Michael Spangler to turn toward him and ask “do you want a piece of this?” Spangler then charged at Malaska.

Malaska testified that, “I got scared and I thought things had reversed. I am trying to help my son out and here is this large man coming at me. I was physically scared.” As Michael Spangler charged at him, Malaska “pointed the rifle towards him and [ ] fired.” (He could not recall the number of times he fired). The shots at Michael Spangler prompted Liller to run toward Kelly Spangler’s vehicle, which was parked on a gravel lot adjacent ⁵⁰² to the paddock.

Malaska saw Liller fall to the ground, but testified that he did not know he had killed Liller until after he had been arrested and transported to the Cumberland City Police Station. The Interrogation and The Motion to Suppress While at the police station, Malaska was read his Miranda rights. He then signed a written waiver of those rights. Thereafter, Malaska was interrogated by Corporal Martin of the Maryland State Police and Detective Dixon of the Allegany County Sheriffs Office.

During the interrogation, Malaska stated “maybe I need an attorney” and “possibly I need an attorney.” In reply, Corporal Martin explained, “if you want an attorney, no other questions will be asked of you.” In response, Malaska expressed his desire to “make a statement right now” and said, “I don’t need an attorney yet.” Malaska then told the officers about the incident, including that, after firing the warning shot, Liller and certain unidentified others “just stopped and []ran” and that he fired the subsequent shots, not out of concern for Michael M., but because Michael Spangler had charged at him and he “was in fear for himself.” Prior to trial, Malaska moved to suppress the statements he made to Corporal Martin and Detective Miller. Malaska asserted that, even though he was read and signed a waiver of his Miranda rights, he had “explicitly invoked his right to counsel” during the interrogation and that, therefore, the officers should have ceased their questioning. The trial court denied the motion, concluding that Malaska had failed to make “an unequivocal request for counsel.” We will discuss Malaska’s motion, and the trial court’s ruling, in greater detail in Part III. The Autopsy Report Liller’s body was transported to the Office of the Chief Medical Examiner for an autopsy.

The physical dissection of Liller’s body was performed by Cassie L. Boggs, M.D., under the supervision of Victor W. Weedn, M.D., J.D., then an assistant medical examiner. The autopsy report concluded ⁵⁰³ that Liller died of a gunshot wound to his back and that the manner of death was homicide. The report was signed by Doctors Boggs and Weedn as well as by David R. Fowler, M.D., the Chief Medical Examiner. In discovery, the State disclosed that it intended to call Dr. Weedn as an expert witness to testify about the autopsy report and its conclusions.

The State did not identify Dr. Boggs as a possible witness. Malaska filed a motion in limine asserting that, unless Dr. Boggs testified, admission of the autopsy report or any evidence of its contents would violate his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. The trial court conducted an evidentiary hearing on the motion outside the presence of the jury before Dr. Weedn testified and then denied the motion. Dr. Boggs did not testify.

We will discuss the motion in Part I of this opinion. The Trial Malaska was tried before a jury on August 29-31 and September 4, 2012 on charges of second degree murder and voluntary manslaughter. The State’s theory was that Malaska, motivated by Liller’s role in the ongoing property dispute, intentionally shot and killed him. The State called twelve witnesses to testify, including Kelly Spangler, Michael Spangler, and Kelly Discher, all of whom testified as to their observations during the incident, and Dr. Weedn, who testified, over defense counsel’s objection, about the results of Liller’s autopsy.

Dr. Boggs did not testify. The State also admitted the autopsy report into evidence, along with, among other evidence, Malaska’s statement to Corporal Martin and Detective Miller. Malaska called seven witnesses to testify in his defense. The crux of his defense, as set out in defense counsel’s opening statement and closing argument, was that, after Malaska fired the warning shot, Michael Spangler threatened Malaska and charged at him, and that, during the charge, Malaska had, in the words of defense counsel, fired shots at Spangler “in self-defense against Michael Spangler.” Accord ⁵⁰⁴ ing to the defense, Malaska did not aim at, nor intend to shoot or kill, Liller.

At the close of evidence, defense counsel requested that the trial court instruct the jury as to “self-defense” and “transferred intent self-defense.” Malaska points to certain “inaudible” parts of the trial transcript and asserts that defense counsel also asked for an instruction on the “defense of others.” The trial court instructed the jury as to self-defense, but not transferred intent self-defense or defense of others. Malaska contends that the trial court abused its discretion by failing to provide the latter two instructions. We will address these contentions in Part II. After deliberating, the jury convicted Malaska of voluntary manslaughter and acquitted him of second-degree murder.

He was sentenced to incarceration for a period of eight years. This appeal followed. Analysis I. The Right of Confrontation Malaska asserts that the trial court’s admission into evidence of Liller’s autopsy report, and Dr. Weedn’s testimony about the report’s contents, violated his right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution (“the accused shall enjoy ... the right to be confronted with the witnesses against him”), 3 and Article 21 of the Maryland Declaration of Rights (an accused “hath a right ... to be confronted with the witnesses against him”). This is so, he continues, because Dr. Weedn neither performed the autopsy dissection nor wrote the report.

Asserting that, at most, Dr. Weedn supervised (to some degree) Dr. Boggs’ performance of the dissection, and edited, ⁵⁰⁵ approved, and signed the final report, Malaska maintains that, in order to admit evidence concerning the results of the autopsy, the State was required to call Dr. Boggs as a witness. The confrontation rights set forth in the Sixth Amendment and Article 21 have been read in pmi materia— i.e., “as generally providing the same protection to defendants.” Derr v. State, 434 Md. 88, 103 , 73 A.3d 254 (2013) (“Derr II ”); Cooper v. State, 434 Md. 209, 232 , 73 A.3d 1108 (2013). Together, they act to “protect[ ] the defendant from the government’s use of statements made outside the courtroom as evidence in trial without calling the witness to testify.” Green v. State, 199 Md.App. 386, 399 , 22 A.3d 941 (2011). These rights apply where: 1) the challenged out-of-court statement or evidence is presented for its truth, and 2) the challenged out-of-court statement or evidence is testimonial— i.e., bears indicia of solemnity.

Derr II, 434 Md. at 106-07, 112-13, 73 A.3d 254 ; Cooper, 434 Md. at 233 , 73 A.3d 1108 . If these conditions are satisfied, the State is prohibited from introducing the statement unless: 1) the declarant is unavailable to testify as a witness at trial; and 2) the defendant had an opportunity to cross-examine the declarant prior to trial. Derr II, 434 Md. at 107, 73 A.3d 254 . Malaska asserts that the autopsy report and Dr. Weedn’s testimony about the report were testimonial and introduced for the truth of the matters recounted therein.

He argues that, having failed to show that Dr. Boggs was unavailable to testify as a witness at trial and, moreover, having failed to make Dr. Boggs available for cross-examination prior to trial, the State should have been precluded from introducing the report and its contents into evidence. Malaska contends that he suffered prejudice as a result of the admission of this information because the report and its contents: 1) established that Liller died of a gunshot wound to the back, 2) stated that the cause and manner of Liller’s death was homicide, and 3) suggested that Malaska testified inaccurately as to certain details about the incident-namely, the timing of when ⁵⁰⁶ Liller fled from the scene. 4 The State suggests in response that it is “unclear” as to whether the autopsy report and Dr. Weedn’s testimony about the contents of the report satisfy the second prong of the Derr II test—i.e., the requirement that they be “testimonial.” The State contends, alternatively, that, even if Malaska’s confrontation right was implicated by the admission of the autopsy report and its contents, it was not violated because Dr. Weedn testified and was subjected to cross-examination at trial. In support of its latter point, the State argues that, as the supervising medical examiner who not only diagnosed the cause and manner of Liller’s death but also edited, approved, and signed the autopsy report, Dr. Weedn was an appropriate witness, for confrontation purposes, through which to introduce details of Liller’s autopsy. The State highlights Dr. Weedn’s testimony that, while Dr. Boggs performed the autopsy dissection, he was present in the autopsy suite while the procedure was ongoing (though he was supervising several— up to three—autopsies simultaneously), and carried the ultimate authority and responsibility for the procedure and the diagnosis.

In assessing these contentions, we must first determine whether Malaska’s right of confrontation was implicated by the trial court’s admission into evidence of the autopsy report and its contents. Applying the two-prong test set forth in Derr II , we conclude that it was. The right having been implicated, we next determine whether the admission of this evidence violated Malaska’s right to confront the witnesses against him. For the reasons explained below, we conclude that it did not.

We begin with the Derr II test. A. In The Nature of Testimony? Because the parties do not dispute that the autopsy report and its contents were admitted for the truth of the matters ⁵⁰⁷ asserted therein, we focus our analysis on the remaining prong of the Derr II test, namely, whether the report and its contents were sufficiently testimonial to implicate Malaska’s right of confrontation. In Derr v. State, 422 Md. 211 , 29 A.3d 533 (2011) (“Derr I ”), the Court of Appeals explained that, under the rule adopted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) and applied in Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705 , 180 L.Ed.2d 610 (2011), “any statement that was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial is considered to be testimonial.” 422 Md. at 236 , 29 A.3d 533 (quotation marks and citations omitted).

The issue in Derr I was whether the results of a serological exam and two related DNA reports were sufficiently testimonial in nature to implicate the defendant’s right to confront the person who performed the scientific tests and/or examinations underlying the reports. Applying the standard set forth in Crawford, Melendez-Diaz, and Bullcoming , the Court of Appeals answered this question in the affirmative. Id. at 237, 248-49, 29 A.3d 533 . In so doing, the Court expressly overturned its prior decision in Rollins v. State, 392 Md. 455 , 897 A.2d 821 (2006), in which it had determined that the contents of a redacted autopsy report 5 were not “testimonial” because they were not created for the express purpose of being used as evidence in a criminal proceeding, and that they instead qualified under the business records exception to the hearsay rule. 422 Md. at 234-36 , 29 A.3d 533 .

The Derr I Court, interpreting Crawford and its progeny as rejecting the “express purpose” test utilized in Rollins , made it clear that the determination of whether an autopsy report is “testimonial” should be assessed under the ⁵⁰⁸ standard set forth by the Supreme Court—ie., whether an objective witness would reasonably believe that the statement would be available for use at a later trial. Id. at 235-36, 29 A.3d 533 . Subsequently, in Maryland v. Derr, — U.S. -, 133 S.Ct. 63 , 183 L.Ed.2d 700 (2012), the Supreme Court vacated the Derr I decision and remanded the case to the Court of Appeals for reconsideration in light of its decision in Williams v. Illinois, — U.S. -, 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012). The pertinent issue in Williams was whether a report containing DNA analysis was “testimonial.” The case produced a plurality of approaches to the issue, the most important of which, for our purposes, was the one articulated by Justice Thomas in his concurring opinion.

Justice Thomas determined that the confrontation right “regulates only the use of statements bearing ‘indicia of solemnity,’ ” for example, “depositions, affidavits, and prior testimony, or statements resulting from ‘formalized dialogue,’ such as custodial interrogation,” 132 S.Ct. at 2259-60 , along with “the use of technically informal statements when used to evade the formalized process.” Id. at 2260 n. 5. Applying this “indicia of solemnity” test to the DNA report at issue, Justice Thomas concluded that the report was not testimonial because it did not constitute a “sworn [or] certified declaration of fact.” Id. at 2260 . In support of this conclusion, Justice Thomas observed that the report was “not the product of any sort of formalized dialogue resembling custodial interrogation,” that it did not “attest that its statements accurately reflect the DNA testing processes used or the results obtained,” and that, even though the report was signed by two “reviewers,” it was not signed by those who “purport to have performed the DNA testing.” Id. On remand, the Court of Appeals in Derr II adopted Justice Thomas’s approach in determining whether a statement is “testimonial” for confrontation clause purposes (what we refer to as the “Derr II test”). 434 Md. at 115-16.

Applying this approach to the results of the serological exam, the Court concluded that the report was not “sufficiently formalized to ⁵⁰⁹ be testimonial.” Id. at 118-19, 73 A.3d 254 . As the Court observed: The exhibit in the record pertaining to the serological examination appears to be the notes from the bench work of the serological examiner. There are no signed statements or any other indication that the results or the procedures used to reach those results were affirmed by any analyst, examiner, supervisor, or other party participating in its development. Like the [ ] report at issue in Williams , the serological examiner’s notes “lack[] the solemnity of an affidavit or deposition, for [they are] neither a sworn nor a certified declaration of faet[,]” nothing on the notes “attests that [their] statements accurately reflect the ... testing processes used or the results obtained!,]” there is no signed statement from a person who did the test or someone “certifying] the accuracy of those who did” and, although the serological examination was performed “at the request of law enforcement,” the results are “not the product of any sort of formalized dialogue resembling custodial interrogation.” Id. at 118-19, 73 A.3d 254 (quoting Williams, 132 S.Ct. at 2260 (Thomas, J., concurring)).

Likewise, the Court concluded that the DNA reports were not sufficiently formalized to be testimonial because the reports lacked statements attesting or certifying to the accuracy of the procedures used or the results obtained therefrom. Id. at 119-120, 73 A.3d 254 . Most recently, in Cooper v. State, the Court of Appeals applied the Derr II test to a DNA report similar to the ones at issue in the Derr case. The Court concluded that the report was not sufficiently testimonial to implicate the confrontation right because, “[n'Jowhere on either page of the report ... is there an indication that the results are sworn to or certified or that any person attests to the accuracy of the results,” 434 Md. at 236, 73 A.3d 1108 and because “the [ ] report is not the result of any formalized police interrogation.” Id.

Applying the Derr II test to the autopsy report at issue in the case before us, the report is surely not the product ⁵¹⁰ of any sort of formalized dialogue resembling custodial interrogation. Therefore, our focus is on whether the report contains formalized indicia such as attestations and/or certifications as to the accuracy of the testing processes used or the results obtained therefrom. In our view, the autopsy report does, indeed, contain formalities of this nature. The last page of the report—the page on which the results of Liller’s autopsy are summarized—contains three signatures: those of Dr. Boggs, Dr. Weedn, and Dr. David Fowler, the Chief Medical Examiner for the State of Maryland.

Of these, both Dr. Boggs and Dr. Weedn were personally involved in the autopsy of Liller. Although the report does not employ the words “attest” or “certify” or any variation thereof, the signatures clearly imply that the signatories agree with and approve the contents of the report. In addition, several Maryland statutory provisions are instructive. Md.Code (1982, 2009 Repl.Vol.) § 5-309(a)(l) of the Health-General Article (“HG”) provides that “[a] medical examiner shall investigate the death of a human being if the death occurs: (i) by violence;____” In such an event, “the police or sheriff immediately shall notify the medical examiner and State’s Attorney for the county where the body is found and give the known facts concerning the time, place, manner, and circumstances of the death.” HG § 5-309(b). “If the medical examiner who investigates a [§ 5-309(a) ] death considers an autopsy necessary, the Chief Medical Examiner, a deputy chief medical examiner, an assistant medical examiner, or a pathologist fellow authorized by the Chief Medical Examiner shall perform the autopsy.” HG § 5—310(b)(1).

During the progress of the autopsy, “[t]he individual who performs the autopsy shall prepare detailed written findings” and, thereafter, shall file a copy of the report “in the office of the medical examiner for the county where the death occurred” and the original “in the office of the Chief Medical Examiner.” HG § 5-310(d)(l). HG § 5-311(d)(2) states that, “a record of the Office of the Chief Medical Examiner or any deputy medical examiner, if made by the medical examiner or by anyone under the medical examiner’s direct supervision or ⁵¹¹ control ... is competent evidence in any court in this State of the matters and facts contained in it.” We recognize that this is an evolving area of the law and that the Court of Appeals has not addressed the specific question before us in light of Williams v. Illinois. Pending further instruction from the Court, we hold that the formalities required by the statutes, together with the signatures of Doctors Fowler, Weedn and Boggs, render the autopsy report in the instant case sufficiently formalized to be “testimonial” for purposes of the confrontation clause. B. The Out-of-Court Statements ... of Dr. Boggs or Dr. Weedn?

Having determined that the trial court’s admission of the autopsy report and its contents implicated Malaska’s confrontation rights, we turn next to the question of whether Malaska’s rights were violated on the facts before us. The resolution of this issue turns on whether Dr. Weedn was, for confrontation purposes, a proper witness through which to admit the autopsy report and its contents, or whether, instead, the report and its contents were attributable to Dr. Boggs to such an extent as to mandate that she testify about them at trial. If, as the State contends, Dr. Weedn was sufficiently involved in the autopsy and the drafting of the report to satisfy confrontation clause requirements, then our analysis necessarily ends because Dr. Weedn testified and was subjected to cross-examination at trial. If not, then we must determine the consequences of Dr. Boggs’ absence at trial.

Where, as here, there is no dispute that the statements being challenged on confrontation grounds were made “out-of-court,” the relevant inquiry focuses on whether the statements were made by “an absent witness.” Derr II, 434 Md. at 106-07, 73 A.3d 254 . To answer this question, we must first identify the declarant—or declarants, as the case may be—of the statements being challenged. This determination is complicated on the facts before us by the respective roles of Dr. Weedn and Dr. Boggs in performing the autopsy—i.e., the ⁵¹² relationship between supervisor and subordinate. On one hand, there is no dispute that Dr. Boggs, a “forensic pathology fellow”—essentially, a forensic pathologist in training—performed the autopsy dissection and wrote the initial draft of the autopsy report.

On the other, Dr. Weedn was, in his words, “the attending physician,” who supervised the autopsy and edited, approved, and signed the report. In support of his position that Dr. Boggs was the proper— and, indeed, only—witness through which to admit the autopsy report and its contents for confrontation purposes, Malaska relies on Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705 , 180 L.Ed.2d 610 . The facts of that case were succinctly set forth by the Court of Appeals in Derr II : In Bullcoming , the defendant was arrested and charged with driving while intoxicated (DWI) and the “[pjrincipal evidence against [the defendant] was a forensic laboratory report certifying that [the defendant’s] blood-alcohol concentration was well above the threshold for aggravated DWI.” Rather than calling the analyst who signed the certification as a witness, the state called “another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on [the defendant’s] blood sample.” 434 Md. at 108, 73 A.3d 254 (quoting Bullcoming, 131 S.Ct. at 2709 ) (citations omitted, brackets added by Derr II). Observing that the surrogate analyst was ill-equipped to testify as to “what [the certifying analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process employed” and, thus, was unable to “expose any lapses or lies on the certifying analyst’s part,” Bullcoming, 131 S.Ct. at 2715 , the Court held that the confrontation clause required “the analyst who made the certification” to testify at trial “unless that analyst [was] unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine [that particular analyst].” Id. at 2710 ; see also Melendez-Diaz, 557 U.S. at 319 , 129 S.Ct. 2527 (confrontation acts to “weed out” “the incompetent [analyst]” and is a “means ⁵¹³ of assuring accurate forensic analysis....

Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony.”); but see Bullcoming, 131 S.Ct. at 2722 (Sotomayor, J., concurring) (recognizing that a distinction exists, for confrontation purposes, between a witness with “a lack of connection to the test at issue”—i.e., a surrogate witness—and a “supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue”); Derr I, 422 Md. at 237 , 29 A.3d 533 (suggesting that, for confrontation purposes, either the analyst who performed the test or a supervisor who observed the analyst perform the test must testify at trial). Malaska argues that, like the surrogate analyst in Bullcoming , Dr. Weedn played little, if any, role in performing the autopsy dissection of Dennis Liller or in writing the autopsy report. In support of this position, Malaska points to the testimony of Theresa Chamberlayne, a crime scene technician who testified that she “attend[edj” the autopsy of Liller, meaning that she observed the entire autopsy dissection from “a second floor observation deck.” 6 When asked by defense counsel whether she had “any contact with Dr. Weedn” during the autopsy, Ms. Chamberlayne replied, “Not that I can recall.” Later, when again asked by defense counsel whether she had “any contact with Dr. Weedn,” Ms. Chamberlayne replied, “No I did not.” During cross-examination, Ms. Chamberlayne testified that there were other autopsy dissections ongoing at the time (although she could not recall a precise number), that approximately ten to twelve medical professionals were present in the autopsy suite during Liller’s autopsy (all of whom were dressed in surgical masks and scrubs), and ⁵¹⁴ that she did not know Dr. Weedn. She further testified that she was not present during the drafting of the autopsy report nor during any discussions that Dr. Boggs may have had with anyone relating to Liller’s autopsy.

Malaska maintains that Ms. Chamberlayne’s testimony established that, even if Dr. Weedn was in the autopsy suite at the time the procedure was performed, he did not directly observe or interact with Dr. Boggs during the dissection. We read Ms. Chamberlayne’s testimony differently. She testified, not that Dr. Weedn failed to supervise or observe Dr. Boggs’s performance of the autopsy dissection, but, rather, that she did not recognize him or have direct contact with him from her observation post on the second floor. Likewise, we read Dr. Weedn’s uncontradicted trial testimony differently than does Malaska.

Malaska maintains that Dr. Weedn’s testimony related only to his role in the performance of autopsies generally, and not specifically with respect to Liller’s case. Dr. Weedn, in fact, testified that “[t]his particular case was assigned to me” and that “I performed this autopsy with the assistance of [ ] forensic pathologist fellow Cassie Boggs.” When defense counsel inquired into the matter further, Dr. Weedn repeated, “Dr. Boggs assisted me.” Malaska asserts that Dr. Weedn’s “testimony shows only that [he] was somewhere in the autopsy suite, which contains multiple rooms and at least sixteen autopsy tables.” As to this point, Dr. Weedn testified that, “I was present for the entire autopsy” and that “I was there in the autopsy suite, in the area for the entire time,” meaning that he was “walking back and forth in the suite,” “moving from table to table,” supervising “all [the] autopsies [being performed at that time].” His testimony makes it clear that the “autopsy suite” in which Liller’s dissection was performed was a single room, with eight dissection stations, 7 and that the suite was one of many in the medical facility. ⁵¹⁵ Dr. Weedn further testified that the dissection—on which Malaska primarily focuses—is but a part of the overall autopsy process, of which Dr. Weedn was involved in and supervised. He testified that the remaining steps in the process include, among other things, conducting various chemical and other tests, if deemed to be necessary, and condensing the information obtained from the various parts of the process into a final autopsy report, which, though initially drafted by Dr. Boggs, Dr. Weedn edited, approved, and signed. Further, Dr. Weedn’s uncontradicted testimony was that, even though he did not physically perform the dissection, or physically conduct the chemical and other tests conducted on Liller (which were performed by lab technicians), “I review all the slides and [the autopsy results are] my interpretation o[f] the slides,” and, that, after discussing the dissection and other test results with the assigned forensic pathology fellow (i.e., Dr. Boggs in this case), he—and not the fellow—makes the ultimate determination as to the cause and manner of death.

The testimony of Ms. Chamberlayne and the testimony of Dr. Weedn does not convince us that the rule set forth in Bullcowing concerning surrogate witness testimony is applicable here. It was uncontested in Bullcoming that the surrogate witness in that case was not the supervisor in charge of conducting the scientific tests at issue, and, further, that the witness had no knowledge