Rollins v. State

DAVIS, J. Appellant was charged with first degree premeditated murder, first degree felony murder, second degree murder, robbery, and burglary. On April 11, 2003, a Baltimore County jury presiding, convicted appellant of first degree felony murder, second degree murder, robbery, and burglary. Although the State sought the death penalty, appellant was sentenced to life without parole. Appellant filed a timely appeal and presents three questions for our review, which we rephrase as follows: I. Did the circuit court err in admitting Dr. Pestaner’s autopsy report, as well as allowing Dr. Ripple to testify about findings in that report, in violation of appellant’s right to confrontation?

II

Did the circuit court err in allowing Dr. Ripple to render an expert opinion concerning the cause and time of the victim’s death?

III

Did the circuit court err in allowing Dr. Ripple to testify as a rebuttal witness in violation of the sequestration rule? Because examination of the record indicates that the circuit court redacted Dr. Pestaner’s autopsy report before admitting ⁴² it into evidence, and because we shall hold that the medical examiner who did not perform the autopsy may render an opinion based on the objectively ascertainable “findings” contained in the report, we answer question I in the negative. We shall also answer questions II and III in the negative and, accordingly, affirm the judgments of the circuit court. FACTUAL BACKGROUND 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 ⁴³ girlfriend provided the officers with information, including the fact that appellant told her he could kill the victim by “putting a pillow over her head.” Appellant was arrested on October 24, 2001 and, during questioning, admitted to breaking into the victim’s house to “borrow” money, but denied harming her. He was consequently charged with burglary on that same day and murder on October 31, 2002, after Dr. Joseph Pestaner’s autopsy report concluded that the cause of death was smothering and the manner of death was homicide. 1 In a pretrial motion, appellant asked the court to “preclude the medical examiner, Dr. Mary G. Ripple, from offering testimony and opinions. Based on hearsay information that is unrelated to the medical findings of the examination of the ⁴⁴ alleged victim in this case ....“ He averred that “the only medical findings cited in the autopsy report to support the medical examiner’s conclusion that the cause of death was smothering and the manner of death was homicide is a microscopic area of superficial hemorrhage area one quarter inch in length that was found in the interior of the mouth adjacent to the root of a denture. The medical examiner’s conclusions and opinions in this case are based upon hearsay statements that were provided by the investigating detectives in this case, rather than medical findings.” Citing Maryland Rule 5-702, appellant further averred, in his motion, “Because the medical examiner’s opinion in this case is based on testimony from potential witnesses whom the.

State would otherwise be required to call in its case in chief rather than medical findings, this testimony would not help the jury understand the evidence or determine a fact in issue.” Positing that the testimony of the medical examiner lacked a sufficient factual basis, the motion continues, “In this case, it remains the function of the jury to determine the veracity of the hearsay statements which contributed to the medical examiner’s opinion.” Pertinent to appellant’s assignment of error based on a violation of the Sixth Amendment to the United States Constitution, appellant concluded the Motion to Exclude the Testimony of the Medical Examiner thusly: Because the medical examiner’s opinion is based upon hearsay statements from witnesses who may or may not testify, the admission of such testimony would violate the defendant’s rights under the Sixth and Fourteenth Amendments to the Constitution of the United States to confront and cross-examine witnesses, his right to trial by jury to determine the witness credibility issues under the Sixth and Fourteenth Amendments to the Constitution of the United States, and his right to Due Process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States. ⁴⁵ Appended to appellant’s Motion to Exclude the Testimony of the Medical Examiner is his Memorandum of Law in which he cites several cases in support of his position that the trial judge in the instant case erred in allowing the medical examiner to resolve non-medical questions of fact and assess credibility based on hearsay statements given to the police. At the hearing on the motion to exclude Dr. Ripple’s testimony, appellant advised the court: [DEFENSE ATTORNEY]: I filed a motion in a rather lengthy memorandum of law in support of the motion. Originally when we filed the motion, we were under the impression that Dr. Joseph Pestaner, who performed the autopsy in this case, would be called by the State to testify regarding manner and cause of death. We have since learned that Dr. Pestaner is now a practicing coroner at the Riverside, California Sheriffs Coroner’s office and that the Medical Examiner’s Office has elected to substitute Dr. Mary Ripple to testify in this case.

Appellant’s counsel conducted the following examination regarding the circumstances surrounding the decision to initiate criminal proceedings. These circumstances included a fax from Sergeant Rose Brady to Dr. Pestaner in support of his claim that Dr. Ripple had based her opinion — and ultimately her conclusion as to manner of death, in part, on hearsay obtained from sources other than the scientific findings contained in the autopsy report: Q. And that activity log demonstrates that there were many discussions between the police in this case and Dr. Pestaner in the time between when he first pended (shorthand for “pending”) the cause of death on October 19th and when he changed it on October 29th, correct? A. He pended it on the 20th. Yes, he did penfd] it on the 20th, not the 19th.

Yes, we have a discussion with other medical examiners. We have— Q. On 10-26? A. And 10-20. And another thing that says 10-26 is unpended [unpenned] but obviously it is 10-29 as the date ⁴⁶ on the letter.

On 10-26 we have “discuss case with Sergeant Brady.” Want me to read what is on here? Q. Yes. A. “Who would like us to wait until Monday to officially change DC.” This case was done on the weekend. “Ten-26, discussed toxicology. Ten-26, Saint Agnes pulmonary has no records.

Ten-29 discussed with Lieutenant Bowers.” And the rest goes on to November. Q. So, actually, Dr. Pestaner actually waited to change the death certificate at the direction of Sergeant Brady of the Baltimore County Police Department, is that not correct? A. That is what it looks like when he says “would like to discuss, wait until Monday to officially change DC.” Q. And that is not the first correspondence that Dr. Pes-taner had from Sergeant Brady from the Homicide Unit of the Baltimore County Police Department, is that not correct? A. I believe there is a fax from the 22nd, and also we had — I assume they have an autopsy, that would have given us a report.

I don’t know who was there exactly. Q. Let me turn to the fax. I turn to that page, the fax that you mentioned. Is that what you are talking about?

A. Yes. This was faxed on the 22nd. Q. This is a fax from Sergeant Rose Brady to Dr. Pestaner? A. Yes.

Q. Could you read for His Honor, what was the communication in the fax? A. Certainly. “Joe, please review. This guy is too dangerous to leave out. We are getting the murder warrant for him without cause of death. ” Then he has, “thanks, Rose. ” Q. So contained within the file of the Medical Examiner’s Office is a fax from one of the supervisors of the Homicide Division to Dr. Pestaner saying that they are going to go ⁴⁷ ahead and charge Mr. Rollins with murder without a finding of cause of death?

A. Yes, that is in the file. Q. And that was after, that was received by Dr. Pestaner after he pended [penned] his findings regarding cause of death on 10-20? A. On 10-20 he pended. On the 22nd he received this fax.

Can I also state that in a discussion with Dr. Pestaner, that on the day of autopsy he was ready to call this case 2 but waited, which we have already stated the reasons for waiting were discussions with the detectives. When asked, during the hearing on the motion to exclude, whether she relied on information developed by police and other investigative sources in arriving at her opinion, Dr. Ripple replied: Q. All right. And is it safe to assume that you are in effect often relying upon law enforcement if they are involved in an unexplained death? A. Certainly.

You can look at it as if — we are like any other physician who is trying to take care of a patient. A physician will interview the patient and get a complete history, then do the physical exam and then order other tests. For us the patient is dead. So the history that we get is an account of the events leading up to or surrounding the death of the individual from law enforcement, relatives, witnesses, other physicians that took care of the patient, et cetera, and then our physical exam is the autopsy.

Referencing the testimony adduced on the motion to exclude, appellant presented his argument as to why the motion should be granted: [DEFENSE ATTORNEY]: If they do not violate, in a criminal case, a defendant’s right to confront and cross examine witnesses, under both the 6th and 14th Amendments to the Constitution and Article 21 of the Maryland ⁴⁸ Declaration of Rights. I think there are two cases that spell this out very clearly. One is Wren versus— THE COURT: One Second. Now we are moving to a confrontation— [DEFENSE ATTORNEY]: Yes.

THE COURT: — argument. That means to me, Mr. Cox, that unless this doctor is going to testify to the same exact thing based upon her observations and what the police said, that there is a confrontation issue. [PROSECUTOR]: Well, Your Honor, there is always— THE COURT: Let me give it to you this way. She is a pathologist. You have a cancer specimen from a hospital that was read by Dr. X last year.

He says it is cancer. Doctor Y wants to come into Court and testify she looked at the same sample. It is okay. If she wants to testify as to some of the other stuff doctor X said, then you got a confrontation problem. [PROSECUTOR]: I take it in your hypothetical you are talking about differing opinions then.

Obviously if that was the Court’s initial inquiry— THE COURT: In other words, if she is looking at the same thing and seeing the same thing and is going to testify to the same thing, then you don’t have a confrontation problem because the opinion is hers, not the other fellow’s who is gone. [PROSECUTOR]: Right. And that is accurate. She will be testifying consistently with the information that Dr. Pestaner has provided. In addition and there was reference made during the conscious [sic] examination of Dr. Ripple, I have spoken with her about issues not directly addressed in the autopsy and that she has worked on and researched and come to conclusions herself.

THE COURT: She says all she is going to say is I have looked at the same stuff he looked at and I’m saying the same thing. [DEFENSE ATTORNEY]: Yes. ⁴⁹ THE COURT: My understanding is that does not contain a confrontation problem. [DEFENSE ATTORNEY]: At this time I’m talking about Dr. Pestaner’s original autopsy report. I think its introduction violates the confrontation clause. I cite you to 98 Md.App. SIf.8, 638 A.2d h.55— THE COURT: My understanding is that she has to pretty much state her own report and, therefore, it would be her report that would come in. [DEFENSE ATTORNEY]: Right. But that [prosecutor] would then get to ask her, this is your report and it is a report based upon the same information and the only reason the initial report is not coming in is because it expresses opinions of someone not here. [DEFENSE ATTORNEY]: Correct.

And it is our contention that the introduction of the original report without Dr. Pestaner to be available for• cross-examination 'would— THE COURT: Because it constitutes his opinion. [DEFENSE ATTORNEY]: Because it constitutes his opinion. And Wren points that out in which medical records were introduced in a trial that contained the opinions of doctors who were examining for sexual abuse. In the Ward case, which was— [DEFENSE ATTORNEY]: They all agreed to what it was and in essence it was cumulative. That was in fact found by Judge Wilner to be a confrontation violation because you could not cross examine doctor B, C and D about the basis of their conclusion.

As we heard from the testimony here, there was a lot of speculation by Dr. Ripple as to what Dr. Pestaner was basing his conclusions on, but, again, that is speculation on her part. Without Dr. Pestaner to be here to confront him, cross examine him— THE COURT: What is the cite in Ward? ⁵⁰ [DEFENSE ATTORNEY]: It is 76 Maryland App. 654, Your Honor. THE COURT: So the rule adopted in Maryland is that it is up to the trial judge’s discretion as to what would bring the opinion in without the basis as opposed to with the basis in the Federal Court system. And, I don’t know what other judges do, but nobody will ever say that when the basis is asked for, that I haven’t required the basis to be asked first.

I agree with you, once it is heard, it is over. That is my understanding of the law. I do understand your point, sir, but I’m not convinced that is what she testified to. [DEFENSE ATTORNEY]: Thank you, Your Honor. THE COURT: Remember what a hypothetical question is: [Prosecutor], I want to ask you with regard to the examination of this engineering structure and the reason this building collapsed, assume one — there has to be evidence of that — assume two — has to be evidence of that — assume three.

Well, three is a test of the cohesion of concrete at the scene. Well, is this the type of test you use all the time? Yes, we use this all the time. Scientific test?

Yes. Relied upon? Yes. You don’t need testimony for that.

So I suppose we will have another go around with her when she testifies. We still got the Ward issue. I’m kind of leaning to what he says concerning that. So you got to come back and tell me why you see it as different. * * * THE COURT: Well, I want to find out what [the prosecutor] had to say. [PROSECUTOR]: Should we wait for Mr. Rollins to get hooked up?

Your Honor, frankly, I guess a lot of my argument may end up needing some direction depending on what in particular the Court wishes to have addressed. ⁵¹ Primarily I guess the distinction Pm looking for is whether we are talking about the admission of the autopsy in total or admission of the autopsy that contains— THE COURT: I haven’t seen the autopsy. I don’t know what you are talking about. [PROSECUTOR]: Okay. THE COURT: I mean, I don’t know what the report is. [PROSECUTOR]: All right. What I’m trying to say, Your Honor, is that I think if there is any issue, the issue is only as to the admissibility of the expression of an opinion as to manner of death.

And in addressing, first off, and I looked at Ward and looked at Reynolds and then researched again the case law on the admission of an autopsy report, first off, Ward deals with psychiatric opinions and in Ward they make clear that psychiatry and I think it is also Reynolds addresses it even greater, that psychiatry is an inexact science. And, therefore, one in which they found that the right of confrontation cannot be in effect obviated by a hearsay exception or any other argument on the admissibility in that particular case as to those records and the expressions of opinions. And that is why I raise it because if we are dealing with a distinction between the admission of the autopsy in total or if we are dealing only with the admission of the manner of death opinion— THE COURT: Let me say this to you. We have a difference of opinion.

In my opinion they have generated the issue and I do not think that Judge Murphy would say the same thing were these issues presented. He would put a caution there; that when it is an opinion, that person has a right to confrontation. [PROSECUTOR]: Thank you, Your Honor. THE COURT: So far I’m to smothering and disease, and homicide. But not all homicides require expert opinion.

You know, if you have somebody with a stab wound through their heart and they have no arms to have stabbed themselves, it is homicide. If also, somebody else ⁵² says I saw X put that knife in the heart, that plus this will mean it is homicide. Once again, you have to generate to me some type of an issue in order for anything else other than that to be there. Do you understand that?

In other words, I’m saying the only thing I can see here that is an opinion is disease only because of what I recall having heard a hundred physicians testify before; secondly, smothering, and thirdly, homicide. [DEFENSE ATTORNEY]: Your Honor, I would suggest that if there is any burden to be met in this case, the State has to meet it if they want to introduce something that is written by an out-of-court declarant. THE COURT: They are. They are going to have the doctor come in and she will testify that these are statements of fact; I’m going to accept her testimony and unless you have any other experts that will testify that any of this other stuff is a matter of opinion— [PROSECUTOR]: I note my objection, Your Honor. An extended exchange with counsel regarding the admissibility of factual findings as opposed to opinions was followed by the court’s determination that it would ostensibly redact the autopsy report as to what it deemed to be opinion now, but would admit characterizations of conditions as “chronic,” “acute,” or “cloudy”: THE COURT: Give me all of those cases that everybody is citing.

What did you cite from Judge Murphy? MS. RAINS: Referring to [Defense Counsel]. I know that [Defense Counsel] cited Reynolds.

THE COURT: What did you cite from his book? [PROSECUTOR]: From Judge Murphy’s book there is a section entitled Section 804(D)(1) autopsy reports. THE COURT: All right. What was the statute that you cited? [PROSECUTOR]: Statute is Health General 5-309 through 311. ⁵³ THE COURT: So what I’m going to do here is just to say that the only thing I really see is opinion is smothering, homicide — what did I say the other one was? [PROSECUTOR]: Disease. THE COURT: and we will do a little preliminary thing ahead of time just to make sure that the doctor will say that the rest of these are factual observations. [DEFENSE ATTORNEY]: I understand.

I don’t want to argue this — I understand where Your Honor is ruling on this. I want to make clear that we will be noting our objection. It is our contention that such matters of whether something is chronic or not, whether something is acute, whether something is cloudy or not is something of interpretation. At trial, the State asserted appellant smothered the victim with a pillow on October 16, 2001.

A critical aspect of the State’s case was proving the victim had been dead for over sixty-six hours before her body was discovered. The State introduced appellant’s statement to the police that he and Dorthea Gurkin broke into the victim’s home on the night in question in search of money for drugs, but never harmed her while she slept. The accomplice testified that when appellant left the victim’s home, he told Gurkin that the victim awoke and he had to put her in a “choke hold.” Other State witnesses also testified that appellant had given them property owned by the victim. Three prisoners who were incarcerated with appellant testified that appellant made incriminating statements to them and appellant offered evidence to impeach their testimony.

Much of the State’s case was based on the testimony of Ripple. As discussed, infra., Dr. Ripple, who did not perform the autopsy, testified that she reviewed the case file and, in her expert opinion, the victim died of “asphyxia during the robbery” from smothering. Her conclusion was based on the physical findings in Dr. Pestaner’s autopsy report and other information contained in the file. After establishing that the ⁵⁴ records in the file were business records prepared in the ordinary course of business, she stated that she personally viewed all the tissues and sections of the heart on the microscopic slides that Dr. Pestaner prepared.

Dr. Ripple stated that she viewed the police reports, witness statements, rough body drawings and notations, prior medical records, photographs, and Dr. Pestaner’s findings in the autopsy report, and considered this evidence when rendering her opinion. Specifically, she stated that she based her opinion on “the investigative findings of our investigator and the police, the physical findings of autopsy, including microscopic sections and a review of [the victim’s] health records.” Dr. Ripple, testified as follows: Q: Are you able to say to a reasonable degree of medical probability or medical certainty as to the cause of death of Irene Ebberts? [DEFENSE ATTORNEY]: Objection. [THE COURT]: Overruled. A: To a reasonable degree of medical certainty Irene Ebberts died of asphyxia during the robbery and the physical findings indicate smothering. Q: Now, you can explain — I know you stated all the things upon which you base your opinion.

Can you explain those and then how they relate to the expression of your opinion? [DEFENSE ATTORNEY]: Objection. [THE COURT]: Overruled. A: Yes. I will start by her physical findings, her natural disease processes. She is a debilitated, sick individual.

So you have to look at her natural disease processes and be able to exclude them as a cause of death. So that involves medical records and then the physical findings that I went through with her pneumonia, her emphysema and her heart disease. There is a difference between dying with disease and dying of disease. So with regard to the natural disease processes going on, that is the first thing. ⁵⁵ The second thing would be the investigation findings at the scene.

You can’t work in a vacuum. You need all those pieces. So the investigative findings indicate that foul play had occurred, that foul play being the robbery and ransacking of the house and, in addition, there are witnesses — am I now allowed to say that now? Q: Let me hold you up a second.

I apologize that I may be throwing you off track. With your permission I would like you to do these step by step. You have made reference to an analysis to see whether or not she either died with disease or died of disease. [You] mentioned three diseases, in effect, I think. Can you explain for the ladies and gentlemen of the jury as to whether or not you were able to conclude that she either died with those [diseases] or if she died of any of those diseases? [DEFENSE ATTORNEY]: Objection. [THE COURT]: Overruled.

A: She died with heart disease and with lung disease. Q: All right. You indicated that part of your function is to look at or eliminate those diseases as a cause of death. What do you base that upon or what is your conclusion and what do you base that upon? [DEFENSE ATTORNEY]: Objection. [THE COURT]: Overruled.

A: I base that on the severity of the findings of her disease process as well as other intervening circumstances through investigation and other physical findings of injury at all. Q: Now I know I shouldn’t have interrupted you. So you have indicated then that that finding has to go in conjunction with the other findings, is that what you are saying? A: Absolutely.

You have to take it all together. Q: All right. So let’s base it upon, if you can, what information you have related so far, first off, the infer- ⁵⁶ mation you said that was provided by the police and then also your investigator’s information and, I apologize, if you can pick it up back where you were. [DEFENSE ATTORNEY]: Objection. [THE COURT]: Overruled. A: I was at the investigation point hut I believe I had stated the findings of our investigator, of the ransacking and the robbery, the police reports indicating ransacking and robbery and some witness statements in the police reports; also the physical findings at autopsy.

There was a hemorrhage in her mouth where it shouldn’t be, indicating pressure on the mouth, hemorrhage, bleeding. That is indicative of smothering, pressure to the mouth in some manner from an external force, be it a hand, be it a pillow, something pushing on her mouth. And, in addition — so that would be the smothering part. In addition, there are other injuries on her that you can’t ignore also.

They might not be part of the exact smothering but it is part of the injury that you have to take into consideration. Of course smothering is holding something over the mouth. Just because I have bruises in my arms doesn’t mean that I’m smothered. But she does have bruises on her arms as I stated.

So she has additional injuries. She then concluded, relying on the condition of the body based on the findings in the case file, that the victim had died two to four days before the body was discovered. Three expert witnesses for appellee disputed Dr. Ripple’s conclusion on cause and time of death. The three experts believed the victim died of natural causes approximately one day before her body was discovered.

Forensic entomologist Dr. James Armine testified that, based on the climate conditions in the victim’s surroundings, there would have been bug or fly infestations near the body. He concluded that the victim “had to have been recently dead no more than six ⁵⁷ hours” after her body was discovered because there was no infestation. Chief Medical Examiner for the State of Delaware Dr. Richard Callery concluded, after reviewing the victim’s file, that the victim died of “broncho pneumonia, an infection of the lungs, which was superimposed upon a debilitated state due to severe emphysema, which was oxygen dependent, chronic obstructive pulmonary disease and heart disease.” He stated that, due to the victim’s fragile skin, had she been suffocated, there would have been bruising near the nasal tubes, and in this case, there was not. He therefore concluded that the victim had been dead for “most likely” twelve to twenty-four hours before being discovered.

West Virginia University Clinical Professor of Pathology Dr. James Frost testified that his conclusion, based on the case file, was that the victim “died of natural diseases,” including “emphysema, pneumonia, and acute pneumonia.” After all of the evidence had been submitted to the jury, the prosecutor, during his closing argument, stated: And Dr. Ripple did not come in here and say based upon the medical findings alone I conclude that this was a smothering. Certainly based upon the medical findings she acknowledged that she could die from many of the other diseases that she had. But she took the step beyond and what her responsibilities are is to look into the circumstances and that is where we are right now. * ❖ * But you have other evidence that is available to you concerning what Wesley Rollins did on the 16th of October. That is what Dr. Ripple took into additional consideration and that is why she made the finding that she did and you have heard that evidence.

As noted, the jury subsequently convicted appellant of first degree felony murder, second degree murder, robbery, and burglary. At the sentencing hearing on April 11, 2003, the circuit court stated: ⁵⁸ Well, here we are. One half an hour we have spent with Irene Ebberts and eight hours we have spent with Wesley Rollins. I’m sure you all know how I feel about that.

The Constitution says that I have to make my own judgment as to whether or not he was a principal in the first degree, meaning in essence whether or not he committed murder and I don’t agree with that because I think, as it was in the early days, I should be able to take the jury’s verdict on that. There is no judge of this court who has been around for awhile who has not seen juries convict a number of people he or she would not have convicted. Doesn’t happen that often, but it does. Or vice versa, seen some juries who have let some people off that they would have convicted.

It doesn’t happen often, but it happens once in awhile. This man will be sentenced to life without parole because I can’t in my own mind lay my head down on a pillow at night and conclude that beyond a reasonable doubt he committed this murder. I have no sympathy or even a tiny bit of good feeling for [appellant]. If he could be charged and given the death penalty for being a horrible human being and a predator on society, I would give it immediately.

I’m sorry. I have to be true to myself. There were many witnesses that testified in this case. I was impressed with every one of them as to whether [the victim] died a natural death or whether or not she was killed.

It is all circumstantial evidence. And the last thing or one of the last things that [appellant’s attorney] said was the Supreme Court indicating a wrongful execution based on circumstantial evidence that did not come up to the point of having that judge or jury being convinced beyond a reasonable doubt and I am not. And the independent feeling that I have to make does not allow me with my judgment and my conscience and performing my responsibility to go any further on this sentencing form than to check off not proven. [Appellant], I believe that the crimes that you have committed and your whole life, although your family says is ⁵⁹ a Jekyll and Hyde situation, are due to your own driving force of self-gratification at every instance for [appellant] and nothing more. You have as bad a criminal record as anyone I have ever seen.

If I had been able to get to the form of aggravating and mitigating circumstances, the mitigating circumstance that would have jumped out at me and caused me to give life without parole would be my inability to get beyond that point of saying beyond a reasonable doubt. Do I agree, and the law says a preponderance of the evidence, which in civil cases is 51 percent, do I believe by 51 percent he committed this murder? Absolutely. What is beyond a reasonable doubt?

The Court of Appeals has said don’t put a percentage on that. If it was 75 percent I would think 72. If it was 68 percent, I would say 66. No matter how you measure it, because of much, very scientific driven, good evidence that this frail lady died a natural death, I would not have been able to say anything else other than that.

I am not convinced, if I had gotten to this point, that any of these things which are wrong with him, brain damage, seizure, adaptive function amounted to a point where they controlled him. Because self-gratification for him, always for [appellant], nothing else, to me is his existence. So I would not have been able to impose the death sentence for that. From the above, based on the evidence, the circuit court found appellant committed the murder by a preponderance of the evidence.

He could not, however, find beyond a reasonable doubt that appellant committed the murders, and therefore sentenced appellant to life without parole. DISCUSSION I The gravamen of appellant’s assignment of error, as stated in his brief on appeal, is that the trial court erred in overruling his objection to the autopsy report, “because the document ⁶⁰ itself is hearsay, and its introduction violates my clients rights to confront and cross-examination of a witness under the 6th, 14th Amendment of the Constitution and Article 21 of the Declaration of Rights.” The Confrontation Clause, Amendment VI of the Constitution of the United States, and Article 21 of the Maryland Declaration of Rights guarantee the right of a criminal defendant to “be confronted with witnesses against him.” U.S. Const.' Amend..

VI

The Supreme Court held in Ohio v. Roberts, 448 U.S. 56, 62-66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), that the introduction of hearsay will not violate a defendant’s right to confrontation if the hearsay is within a “firmly rooted” exception to the rule against hearsay or bears “particularized guarantees of trustworthiness.” See Chapman v. State, 331 Md. 448, 457 , 628 A.2d 676 (1993) (“firmly rooted” exceptions include, inter alia, business records). 3 “The primary interest secured by the confrontation clause is the right of cross-examination.” Crawford v. State, 282 Md. 210, 214 , 383 A.2d 1097 (1978). In Crawford, 4 the Supreme Court overruled Roberts with respect to testimonial hearsay statements; however, the Court retained the prior standards enunciated in Roberts in the case of non-testimonial hearsay statements. Crawford , 541 U.S. at-, 124 S.Ct. at 1374. THE CRAWFORD DECISION In Crawford , the United States Supreme Court declared that the Confrontation Clause prohibited the admission of “testimonial” hearsay, unless the hearsay declarant was unavailable and the defendant had a prior opportunity to cross-examine the declarant.

Id. at-,-, 124 S.Ct. at 1365, 1374. Petitioner Michael Crawford confessed that he and his ⁶¹ wife, Sylvia, had gone in search of one Kenneth Lee and, finding him in his apartment, had stabbed him for allegedly trying to rape Sylvia. At his trial, the State introduced petitioner’s confession, then played for the jury Sylvia’s tape recorded statement 5 to the police describing the stabbing, even though petitioner had no opportunity for cross-examination. Determining that Sylvia’s statement was reliable, the Washington Supreme Court upheld petitioner’s conviction. ⁶² The question was whether the procedure employed by the trial court complied with the Sixth Amendment guarantee that, “[i]n all criminal prosecutions, the accused shall enjoy the right — to be confronted with the witnesses against him.” Id. at-, 124 S.Ct. at 1357.

Barred from testifying against her husband, under a Washington statute that prevents a spouse from testifying without the other spouse’s consent, the prosecutor sought to introduce Sylvia’s statements on the ground that, because she had led petitioner to Lee’s apartment, her statement could be admitted as an exception to the Hearsay Rule for statements against penal interests. Admission of such evidence, countered petitioner, violated his federal constitutional right to be “confronted with the witnesses against him.” The Washington Supreme Court upheld the admission of the statement, concluding it exhibited guarantees of trustworthiness. Id. at-, 124 S.Ct. at 1358. Reversing the state court, the Supreme Court drew a distinction between “testimonial” and “nontestimonial” statements.

Id. at -, 124 S.Ct. at 1364. The Court explained that “testimonial” hearsay includes: [a]t a minimum ... prior testimony at a prehminary hearing, before a grand jury, or at a former trial; and to police interrogation. Various formulations of this core class of “testimonial” statements exist: “ex parte- in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,”; “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,”; “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”. Id. at-,-, 124 S.Ct. at 1364, 1374 (citations omitted).

See Snowden v. State, 156 Md.App. 139 , 155 n. 26, 846 A.2d 36 (2004), cert. granted, 381 Md. 677 , 851 A.2d 596 (2004). ⁶³ Concerning “nontestimonial” hearsay, the Court further penned that “for example, business records or statements in furtherance of a conspiracy,” as well as dying declarations, would not invoke the same analysis required for “testimonial” hearsay. Crawford , 541 U.S. at-, 124 S.Ct. at 1367. See Snowden, 156 Md.App. at 156 , 846 A.2d 36 . The Court explained: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts , and as would an approach that exempted such statement from Confrontation Clause scrutiny altogether.

WTiere testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Crawford , 541 U.S. at-, 124 S.Ct. at 1374. Interpreting Crawford , we recognized, in Snowden, 156 Md.App. at 156-57 , 846 A.2d 36 , that “when the admissibility of non-testimonial hearsay is at issue, the individual states are entitled to determine what statements should be excluded, but when ‘testimonial evidence is at issue . .., the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination.’ ” (quoting Crawford , 541 U.S. at-, 124 S.Ct. at 1374). The United States Supreme Court, in California v. Green, 399 U.S. 149, 155-57 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970), recognized that introduction of evidence within a hearsay exception may nonetheless constitute a violation of the Sixth Amendment right of confrontation: The issue before us is the considerably narrower one of whether a defendant’s constitutional right to be confronted with the witnesses against him is necessarily inconsistent with a State’s decision to change its hearsay rules to reflect the minority view described above.

While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a ⁶⁴ different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.

Given the similarity of the values protected, however, the modification of a State’s hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant’s constitutional right to confrontation. Such questions require attention to the reasons for, and the basic scope of, the protections offered by the Confrontation Clause. ... It is sufficient to note that the particular vice that gave impetus to the confrontation claim was the practice of trying defendants on ‘evidence’ which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact. Prosecuting attorneys would frequently allege matters which the prisoner denied and called upon them to prove.

The proof was usually given by reading depositions, confessions 'of accomplices, letters, and the like; and this occasioned frequent demands by the prisoner to have his ‘accusers,’ i.e. the witnesses against him, brought before him face to face. Under Crawford , the states are accorded flexibility to determine whether a hearsay statement within an exception to the Rule offends the Sixth Amendment. The Supreme Court’s ⁶⁵ decisions also make clear that a confrontation violation may occur, notwithstanding a firmly rooted exception. Notably, the following passage from Crawford elucidates the evil sought to be addressed by the Framers of the federal Constitution: First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.

It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind. Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon “the law of Evidence for the time being.” 3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970) (Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.

Raleigh was, after all, perfectly free to confront those who read Cobham’s confession in court. This focus also suggests that not all hearsay implicates the Sixth Amendment’s core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsag rules, but the Framers certainly would not have condoned them.

The text of the Confrontation Clause reflects this focus. It applies to “witnesses” against the accused — in other words, those who “bear testimony.” 1 N. Webster, An ⁶⁶ American Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. ” Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent- — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” Brief for Petitioner 23; “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U.S. 346, 365 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992), 541 U.S. at---, 124 S.Ct. at 1363-1364 (emphasis added). THE BUSINESS RECORDS EXCEPTION Our reading of Crawford constrains us ineluctably to conclude that the opinions/conclusions in the autopsy report in the instant case fall squarely within the “business records” exception 6 of the hearsay rule and is, therefore, technically, non-testimonial hearsay. The receipt of an autopsy report as an official business record is governed by the provisions of Md.Code, Health General Article, § 5-311. 7 Thus, the una ⁶⁷ vailability of the witness and prior opportunity for cross-examination required in the case of “testimonial” hearsay are not rights, under Crawford , which attach automatically to non-testimonial hearsay. The Court of Appeals addressed the right to confrontation when the medical examiner who performed the autopsy was not called to testify in Bowers v. State, 298 Md. 115, 136-138 , 468 A.2d 101 (1983): Bowers asserts that the admission of the autopsy report unaccompanied by the testimony of the medical examiner who prepared it violates his constitutional right to confront witnesses against him.

He claims that in admitting the autopsy report the trial judge appears only to have considered the hearsay aspect of this record and did not examine whether its admission violated Bowers’ Sixth Amendment right to confrontation of witnesses. The Court of Appeals commented that the identical issue had been considered in Grover v. State, 41 Md.App. 705 , 398 ⁶⁸ A.2d 528 (1979), wherein appellant had relied on Gregory v. State, 40 Md.App. 297 , 391 A.2d 437 (1978), arguing “that his Sixth Amendment right of confrontation was violated by the introduction of a document prepared in whole or in part by a party not present in court to testify.” 41 Md.App. at 710 , 398 A.2d 528 . Judge Thompson, writing for the Grover court, said: In Gregory v. State, supra, we noted that the field of forensic psychiatry was an inexact science and that differences of opinion frequently existed between experts in the field. This being so, we concluded that the opportunity to cross-examine a witness giving such opinion evidence could be of crucial importance.

It should not be supposed that Gregory stands for the proposition that the confrontation clause of the constitution precludes the admission of all evidence under exceptions to the hearsay rule. Dr. Azzarel-li’s statement in the autopsy report did not express any opinion. It merely stated his findings of the physical condition of the decedent’s brain. As such it falls under the category of a “ ‘fact or condition objectively ascertained,’ and was probably admissible as a business record as provided by the Md.Code, Courts and Judicial Proceedings Article, Section 10-101.

It was clearly admissible under Md.Code, Article 22, § 8 which has been construed by Benjamin v. Woodring, 268 Md. 593, 608 , 303 A.2d 779 (1973) to make autopsy reports admissible as to facts, but not as to opinions.” 41 Md.App. at 710-11 , 398 A.2d 528 (footnote omitted). The Bowers Court concluded: As in ■ Grover, the autopsy report here merely stated findings as to the physical condition of the victim. The only thing that comes near to an opinion in the report are its final two sentences which state, “In view of the history and findings at autopsy, the death of MONICA MCNAMARA, a twenty-eight year old White female, is attributed to strangulation. The manner of death is HOMICIDE.” Although it was only the opinion of the medical examiner that this was a homicide, there has never been any dispute but what it ⁶⁹ was.

Moreover, Bowers admitted that she was strangled. The autopsy report here was admissible without the testimony of the physician who prepared it. 298 Md. at 136 , 468 A.2d 101 . Writing for the Court in Bowers , Judge Smith distinguishes between opinions contained in an autopsy report and “findings of the physical condition” of the decedent. Notably, in finding the autopsy report admissible without the testimony of the medical examiner who performed the autopsy, that the manner of death was undisputed was cited as the basis for receiving “the only thing that comes near to an opinion in the report.” Maryland law, in 1983, when Bowers was decided, was — and continues to be — that a medical examiner, who did not perform the examination, may testify to the findings of the physical condition of the decedent, then render his or her opinion independent of any opinion of the medical examiner who performed the examination.

The admission into evidence of routine factual findings contained in an autopsy report submitted to the State’s Attorney’s Office is authorized by Md.Code, Health General Article, § 5-311 and Md.Code, Cts. & Jud. Proc. Article, § 10-101, without the testimony of the medical examiner who performed the autopsy. Conclusions and conclusory findings susceptible to different interpretations that are critical to a central