Rollins v. State

GREENE, Judge. After a jury trial in the Circuit Court for Baltimore County, petitioner, Wesley Allen Rollins, was convicted of the crimes of first-degree felony murder, second-degree murder, robbery, and burglary relating to the death of Irene Ebberts. Petitioner seeks review of the judgment of the Court of Special Appeals affirming his convictions. We granted certiorari, Rollins v. State, 387 Md. 462 , 875 A.2d 767 (2005), to review the denial of petitioner’s pretrial motion to exclude the testimony of deputy medical examiner, Dr. Mary G. Ripple, allegedly derived from “hearsay information unrelated to medical findings” in the autopsy report for Ms. Ebberts that was prepared by former Assistant Medical Examiner, Dr. Joseph Pestaner.

Petitioner alleges that because Dr. Ripple’s opinion was based on hearsay statements contained in the autopsy report from witnesses who may or may not testify at trial, Rollins’s right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and ⁴⁶⁰ under Article 21 of the Maryland Declaration of Rights 1 would be violated by the admission of such testimony. In addition, we shall review the trial court’s alleged error in the admission of Dr. Ripple’s expert testimony relating to the time and manner of Ms. Ebberts’s death. Petitioner presents two questions for our review, which we have rephrased: 2 1. Did the admission of the autopsy report in the instant case violate the petitioner’s Sixth Amendment right to confrontation? 2.

If preserved, did the trial court err in allowing the medical examiner to render an expert opinion regarding the cause and time of death of Ms. Ebberts? For the reasons stated below, we answer both questions in the negative and affirm the judgment of the intermediate appellate court. We hold that the autopsy report, as redacted, contained non-testimonial hearsay statements in nature that were admissible under either the business or public records exceptions to the hearsay rule. We further hold that, under the facts of the instant case, the availability of a witness is ⁴⁶¹ immaterial to the question of admissibility of hearsay evidence under either the business or public records exception.

Opinions, speculation, and other conclusions drawn from the objective findings in autopsy reports are testimonial and should be redacted before the report is admitted into evidence. Because all testimonial statements in nature were redacted from the autopsy report prepared by Dr. Pestaner prior to its admission into evidence, and because the autopsy report fit within the business and public records hearsay exceptions, petitioner’s rights under the Confrontation Clause were not violated. Facts The facts surrounding the death of Ms. Ebberts were detailed by the intermediate appellate court: 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 ⁴⁶² 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 girlfriend provided the officers with information, including the fact that [Rollins] told her he could kill the victim by “putting a pillow over her head.” Rollins v. State, 161 Md.App. 34, 42-43 , 866 A.2d 926, 930-31 (2005) (footnote omitted).

Petitioner was arrested on October 24, 2001, and during questioning admitted to breaking into Ms. Ebberts’s house to “borrow” money, but denied harming her. He was consequently charged with burglary on that same day. On October 20, 2001, Dr. Pestaner noted on the victim’s death certificate that the cause of death was “pending,” and on October 29, 2001, Dr. Pestaner concluded, as stated in the autopsy report, that the cause of death was “smothering” and the manner of death was “homicide.” Dr. Pestaner’s autopsy report included the following pathologic diagnoses determining the cause of Ms. Ebberts’s death: (I) “[s]mothering;” (II) “[h]ypetensive cardiovascular disease;” (III) “[l]ung, bronchopneumonia;” (IV) “[c]hronic bronchitis and pulmonary emphysema;” and (V) “[p]leural adhesions.” In the “Opinion” portion of the autopsy report, Dr. Pestaner noted that Ms. Ebberts had died of “smothering, a lack of oxygen from covering the nose and mouth.” Evidence of smothering included “hemorrhage in the mucosa on one side of the mouth.” The manner of death noted by Dr. Pestaner was “homicide.” The autopsy report, as redacted, was summarized by the Court of Special Appeals: The contents of the autopsy report may be summarized as follows: Pages two and three of Dr. Pestaner’s report, captioned “INTERNAL EXAMINATION”, detail the condition of the victim’s body cavities, head, neck, cardiovascular system, respiratory system, liver and biliary system, elementary tract, genitourinary system, recticuloendothelial ⁴⁶³ system, endocrine system and musculoskeletal system. Aside from the pathologies associated with the victim’s bronchopneumonia exacerbated by severe emphysema and heart disease, the results of the internal examination were unremarkable.

On page one of Dr. Pestaner’s report, the external examination revealed a 1 inch contusion on the left elbow and the right arm had a 2? x 1? contusion. Under the caption, “EVIDENCE OF INJURY,” Dr. Pestaner indicated: the right buccal mucosa adjacent to the upper denture, in an area adjacent to the root of tooth # 3, had a 1/4? area of superficial hemorrhage. No petechiae were noted of the eyes, mouth, face or airway. The form of the neck was atraumatic.

Under “MICROSCOPIC EXAMINATION,” the following was noted: “Gum: Acute hemorrhage into underlying non-keratinizing squamous epithelium and into underlying connective tissue Right Forearm: Acute hemorrhage. Scattered iron positivity. Right Arm: acute hemorrhage. Iron stain negative.” Dr. Pestaner’s conclusions are summed up on the final page of the autopsy report: This 71 year old white female, Irene Ebberts, died of smothering, a lack of oxygen from covering the nose and mouth.

Ms. Ebberts was found dead in bed at her house. Investigation, revealed personal property missing and previous threats of harm had been made to smother Ms. Ebberts. Autopsy revealed a sick woman who had significant heart and lung disease and an acute pneumonia was present in the lung. Evidence of smothering 3 included ⁴⁶⁴ hemorrhage in the mucosa on one side of the mouth.

The manner of death is homicide. The decedent was not consuming alcoholic beverages prior to death and a comprehensive drug test was negative. There was no evidence of sexual activity. Id. at 43 n. 1, 866 A.2d at 931 n. 1.

The following describes the information surrounding the admission of the autopsy report, the trial judge’s redactions, and the intermediate appellate court’s conclusions: As to the contents of the autopsy report to which appellant specifically interposed an objection, the record unequivocally discloses that appellant objected to admission of the report ⁴⁶⁵ without the testimony of Dr. Pestaner; then he specifically objected to any opinion contained in the report; he also objected to Dr. Ripple’s use of the report in formulating her own opinion. Turning to the question of whether all or part of the report was admitted into evidence, we cannot discern from our inspection of the autopsy report contained in the record on appeal that any portion of the report was redacted. The court’s statements, however, regarding opinions in the report during the hearing on the Motion to Exclude Testimony of the Medical Examiner, and various references to deletions from the report during examinations of witnesses, indicate that the court did, in fact, redact the cause and manner of death. * * * * During the course of the hearing on the Motion to Exclude the Testimony of the Medical Examiner, the court had decided that “the only thing I can see here that is an opinion is disease ... smothering ... [and] homicide” and disease; the court indicated that it would “make sure that the doctor will say that the rest of these are factual observations.” Accordingly, the trial judge redacted what he determined constituted opinion, i.e., the section captioned “manner of death” and the references to smothering, homicide and disease. Consequently, the trial judge removed from the jury’s consideration the ultimate conclusion contained in Dr. Pestaner’s report that the manner of death was homicide by asphyxiation.

There is no issue presented regarding the denial of the right to confrontation, therefore, as to Dr. Pestaner’s opinion regarding the cause of death. Rollins, 161 Md.App. at 76-79 , 866 A.2d at 951-52 (footnote omitted). Rollins was charged with murder on October 31, 2001. Dr. Pestaner did not testify at trial. 4 Rollins filed a pretrial ⁴⁶⁶ motion to prevent the deputy medical examiner, Dr. Ripple, from offering testimony and opinions that were “based on hearsay information that is unrelated to the medical findings of the examination of the alleged victim.” Rollins argued that Dr. Ripple’s conclusions and opinions were largely unsupported by the contents of the autopsy report and that her opinions were based upon “hearsay statements that were provided by the investigating detectives in this case, rather than medical findings.” Id. at 43-44 , 866 A.2d at 931 .

Pursuant to Maryland Rule 5-702, Rollins also contended that Dr. Ripple’s opinion was “based on testimony from potential witnesses whom the State would otherwise be required to call in its case in chief rather than medical findings,” and, thus, the testimony would not be helpful to the jury. Petitioner’s assignment of error in the intermediate appellate court was based on his contention that Dr. Ripple’s testimony would constitute a violation of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. 5 The defense motion to prevent the testimony of Dr. Ripple was noted, but denied. At trial, the State presented Dr. Ripple as an expert witness and the defense countered with three expert witnesses who ⁴⁶⁷ disputed Dr. Ripple’s testimony on various grounds, each essentially contending that Ms. Ebberts died of natural causes. Rollins was found guilty by the jury of first-degree felony murder, second-degree murder, robbery, and burglary.

As a result of the first-degree murder conviction, the State sought the death penalty. Ultimately, the trial judge sentenced Rollins to life without the possibility of parole. Discussion I. Did the admission of the autopsy report in the instant case violate the petitioner’s Sixth Amendment right to confrontation? Rollins primarily contends that the admission of Ms. Ebberts’s autopsy report, without the testimony of the doctor who prepared the report, violated his constitutional right to “be confronted with witnesses against him” under the Confrontation Clause, Amendment VI of the Constitution of the United States and Article 21 of the Maryland Declaration of Rights.

The seminal case on this issue is Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). Petitioner contends that the Crawford decision changed the law regarding the Confrontation Clause, and thus argues that the distinction between fact and opinion in an autopsy report is no longer a factor in determining whether the admission of an autopsy report—absent the testimony of the person who prepared the report—violates an accused’s right to confrontation. 6 ⁴⁶⁸ The Crawford Decision In Crawford’s trial for assault and attempted murder, the tape-recorded statement of Crawford’s wife was offered as evidence to rebut Crawford’s claim that he attacked the victim in self-defense. 7 At trial, Crawford’s wife did not testify because of Washington State’s marital privilege. 8 The privilege, however, did not extend to statements made outside of court that were admissible under a hearsay exception, and Crawford’s wife’s statements were admitted notwithstanding the marital privilege. Crawford, 541 U.S. at 40 , 124 S.Ct. at 1357-58 . Crawford argued that the admission of his wife’s out-of-court statement violated his constitutional right to confront the witnesses against him.

Id. at 40 , 124 S.Ct. at 1358 . The Supreme Court examined its holding in Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), that the right to confrontation will not prevent the admission of a statement made against a criminal defendant by an unavailable witness if the statement possesses “adequate ‘indicia of reliability,’ ” meaning that the statement either “fall[s] within a ‘firmly rooted hearsay exception’ or bear[s] ‘particularized guarantees of trustworthiness.’” Crawford, 541 U.S. at 40 , 124 S.Ct. at 1358 (quoting Ohio v. Roberts, 448 U.S. at 66 , 100 S.Ct. at 2539 ). Primarily, the Court noted that two inferences about the Confrontation Clause could be gleaned from history, the first of which is that the “principal evil” that the Confrontation Clause was meant to address was “the use of ex parte ⁴⁶⁹ examinations as evidence against the accused.” Id. at 50, 124 S.Ct. at 1363 . The second inference about the Confrontation Clause, supported by history, is that “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless ... [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 53-54 , 124 S.Ct. at 1365 .

The prior opportunity to cross-examine is a condition precedent for the admissibility of testimonial statements, with some exceptions. The Court stated that this conclusion was not meant [to] deny that “[t]here were always exceptions to the general rule of exclusion” of hearsay evidence.... But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. [Most of the hearsay] exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony.

Cf. Lilly v. Virginia, 527 U.S. 116, 134 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999) (plurality opinion) (“[Accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule”). Crawford, 541 U.S. at 56 , 124 S.Ct. at 1367 (footnotes omitted). The text of the Confrontation Clause regarding witnesses against the accused was interpreted by the Court to mean those individuals who “bear testimony” against the accused.

Id. at 51 , 124 S.Ct. at 1364 . Noting Roberts's conditioning of the admissibility of all hearsay evidence on whether it falls under a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness,” the Court found that the Roberts test departed from the noted historical inferences about the Confrontation Clause. Id. at 60 , 124 S.Ct. at 1369 . The Court ultimately rejected the Roberts test for testimonial statements, concluding that conditioning the admissibility of all hearsay evidence on its “reliability,” and leaving the Con ⁴⁷⁰ frontation Clause’s protection “to the vagaries of the rules of evidence,” was inconsistent with the Framers’ intent.

Id. at 61 , 124 S.Ct. at 1370 . While the Supreme Court was reluctant to detail a comprehensive definition of testimonial, it did provide some guidance. The Court noted: 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 51-52 , 124 S.Ct. at 1364 (citations omitted). “Testimony” was defined as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51 , 124 S.Ct. at 1364 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). The Supreme Court mentioned that there are multiple examples of “testimonial” statements and remarked particularly that statements taken by police officers in the course of interrogations are testimonial.

Id. at 52 , 124 S.Ct. at 1364 . The Court stopped short of establishing a complete definition of what is testimonial, but noted that “prior testimony at a preliminary hearing, before a grand jury, or at a former trial ... and ... police interrogations” are considered to be testimonial. Id. at 68 , 124 S.Ct. at 1374 . We recently discussed Crawford and the admission of testimonial statements in connection with the Confrontation Clause in State v. Snowden, 385 Md. 64 , 867 A.2d 314 (2005).

Snow-den was arrested, and eventually convicted, on several counts of sexual abuse based on information obtained during an ⁴⁷¹ interview between a sexual abuse investigator with the Montgomery County Department of Health and Human Services, and the alleged victims. Id. at 69-71 , 867 A.2d at 316-17 . The State filed a motion to invoke Md.Code (2001), § 11-304 of the Criminal Procedure Article. 9 Id. at 73, 867 A.2d at 318-19 . The investigator’s testimony was found to be sufficient under § 11-304 and was permitted by the trial judge after an examination of the children.

Id. at 73, 867 A.2d at 319 . Snowden objected, arguing that this admission was in violation of his Sixth Amendment right to confrontation, but the trial court overruled his objection and Snowden was found guilty on all counts. Id. at 74 , 867 A.2d at 319 . In our analysis, we addressed the Supreme Court’s categorization of “testimonial” statements in Crawford : As the Court noted, these standards share a common nucleus in that each involves a formal or official statement made or elicited with the purpose of being introduced at a criminal trial.

Id. at 1364, 1367, n. 7 (finding that statements are testimonial where “government officers [are involved] in the production of testimony with an eye toward trial”). Although these standards focus on the objective quality of the statement made, the uniting theme underlying the Crawford holding is that when a statement is made in the course of a criminal investigation initiated by the government, the Confrontation Clause forbids its introduction unless the defendant has had an opportunity to cross-examine the declarant. Id. at 1364. Id. at 81, 867 A.2d at 324 .

Analyzing Crawford , we opined: In the context of “police interrogations, ” we are directed by Crawford to conclude that the proper standard to apply to determine whether a statement is testimonial is whether the statements were made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial. ⁴⁷² Id. at 83 , 867 A.2d at 325 (quoting Crawford, supra, 541 U.S. at 51 , 124 S.Ct. at 1364 ) (footnote omitted) (emphasis added). We noted that, notwithstanding the children’s awareness of why they were being interviewed, “the express purpose of bringing the children to the facility to be interviewed was to develop their testimony for possible use at trial.” Id. at 85 , 867 A.2d at 326 (emphasis added.) Disregarding the State’s arguments as to the nature of the interviews with the children, we held that, “[n]o matter what other motives exist,” if the circumstances of the given statement would lead an objective person to believe that the statements made in response to government interrogation would be used at trial later, the admission of those statements must be subject to the requirements of Crawford. Id. at 92, 867 A.2d at 330 . Whether an autopsy report is testimonial in nature pursuant to Crawford is an issue of first impression in Maryland.

We turn to the decisions of states that have decided this issue and similar issues. Several jurisdictions have interpreted Crawford strictly, finding that reports that do not fall within the three enumerated categories of testimonial statements specified in Crawford do not implicate the Confrontation Clause. See State v. Dedman, 136 N.M. 561 , 102 P.3d 628 (2004) (holding that a blood-alcohol report was not testimonial because it did not fall within the categories of testimonial statements enumerated in Crawford and because the report was not prepared by law enforcement personnel). In Moreno Denoso v. State, 156 S.W.3d 166 (Tex.Ct.App.2005), the defendant objected to the admission of an autopsy report because the maker of the report had died and did not testify at trial.

Id. at 181 . The trial court in Moreno Denoso found that the autopsy report was admissible as a public record. Id. at 180 . The court noted that the autopsy report “set forth matters pursuant to a duty imposed by law,” and detailed the state of decomposition of the body in addition to observations about the victim’s body.

Id. at 180, 182 . The Moreno Denoso court found that the autopsy report did not fit within the enumerated categories in Crawford , and therefore, it was non-testimonial and admissi ⁴⁷³ ble. Id. See also Mitchell v. State, No. 04-04-00885-CR, 2005 WL 3477857 (Tex.App. Dec.21, 2005) (finding that an autopsy report is not testimonial evidence in violation of Crawford, because it is a business record, and therefore, non-testimonial).

Crawford’s reference to the business records as non-testimonial statements has led other jurisdictions to hold that finding evidence to be a business record automatically excepts that document from Confrontation Clause scrutiny. See People v. Brown 9 Misc.3d 420 , 801 N.Y.S.2d 709 , 712-13 (N.Y.Sup.Ct.2005); Commonwealth v. Verde, 444 Mass. 279 , 827 N.E.2d 701, 706 (2005); People v. Hinojos-Mendoza, No. 03CA0645, slip op. at 11-13, 2005 WL 2561391 (Colo.Ct.App. July 28, 2005). In People v. Durio, 7 Misc.3d 729 , 794 N.Y.S.2d 863 (2005), the defendant objected to the admission of both the autopsy report of the victim and the testimony of an assistant medical examiner offered in place of the medical examiner who prepared the report. Durio, 794 N.Y.S.2d at 864.

The court noted that Crawford had specifically exempted business records from scrutiny under the Confrontation Clause because they are outside the core class of testimonial statements that were meant to be excluded by the clause. Id. at 867. Interpreting Crawford , the court in Durio stated: “The essence of the business records hearsay exception contemplated in Crawford is that such records or statements are not testimonial in nature because they are prepared in the ordinary course of regularly conducted business and are ‘by their nature’ not prepared for litigation.” Id. An autopsy report can be considered a business record under New York law based on the rationale that “[rjecords systematically made for the conduct of a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise.” Id. at 868 (citation omitted).

The court in Durio gave the following reasoning for the admission of the autopsy report without violation of the Confrontation Clause: ⁴⁷⁴ The [Office of the Chief Medical Examiner (“OCME”)] is not a law enforcement agency and is “by law, independent of and not subject to the control of the office of the prosecutor.” OCME “is required simply to investigate unnatural deaths” and is required to perform autopsies in a number of situations only one of which is when the death is potentially the product of a homicidal act.... OCME is not authorized to gather evidence or determine the identity of a particular perpetrator and is not responsible for enforcing any criminal laws. OCME’s independence distinguishes its autopsy reports from the blood test report held to be testimonial in People v[.] Rogers ( 8 A.D.3d 888, 891 , 780 N.Y.S.2d 393 [3d Dept 2004]). The autopsy report in this case was not manufactured for the benefit of the prosecution.

Indeed, an autopsy is often conducted before a suspect is identified or even before a homicide is suspected. That it may be presented as evidence in a homicide trial does not mean that it was composed for that accusatory purpose or that its use by a prosecutor is the inevitable consequence of its composition. Id. at 868-69 (some citations omitted). The Durio court also noted the practical implications of treating autopsy reports as inadmissible testimonial hearsay: Years may pass between the performance of the autopsy and the apprehension of the perpetrator.

This passage of time can easily lead to the unavailability of the examiner who prepared the autopsy report. Moreover, medical examiners who regularly perform hundreds of autopsies are unlikely to have any independent recollection of the autopsy at issue in a particular case and in testifying invariably rely entirely on the autopsy report. Unlike other forensic tests, an autopsy cannot be replicated by another pathologist. Certainly it would be against society’s interests to permit the unavailability of the medical examiner who prepared the report to preclude the prosecution of a homicide case.

Id. at 869. Other jurisdictions, such as those of Ohio, Alabama and Florida have held that classifying evidence that fits within a ⁴⁷⁵ hearsay exception, such as business or public records, does not exempt such evidence from scrutiny under the Confrontation Clause pursuant to Crawford . In State v. Crager, 164 Ohio App.3d 816 , 844 N.E.2d 390, 391 (2005), the defendant was convicted of aggravated assault and murder. He challenged the introduction of a DNA report when the analyst who prepared the report was not present to testify.

The court found that the report was testimonial under Crawford because it was prepared as part of a police investigation and a reasonable person could conclude that it would be available for use at a later trial. Id. at 396. The court in Crager held that the statement in Crawford referring to the business records exception was purely dictum, 10 and “such a statement should [not] control over the [Supreme C]ourt’s holding, which involves whether a statement is testimonial or [non-testimonial].” Id. at 397. The court also stated that, while some evidence may fall within the general business-records exception, other business records should still be subject to analysis under Crawford and be excluded from evidence if they are in fact testimonial.

Id. at 397. Smith v. State, 898 So.2d 907 (Ala.Crim.App.2004), concerned a defendant’s objection to the admission of an autopsy report and evidence admitted without the testimony of the doctor who performed the autopsy. Although the report was admissible as a business record, the court nevertheless held that it violated the Confrontation Clause because it allowed the State to prove cause of death, a crucial element in the case, without providing Smith with the opportunity to cross- ⁴⁷⁶ examine the doctor who determined the cause of death. Id. at 915-16 .

The court noted that the testimony offered by the substitute medical examiner allowed the State to prove that the cause of death was asphyxiation, which was contrary to the defendant’s claim that the victim died as a result of blows the defendant inflicted in self-defense. This error, however, was deemed harmless. The court observed that the autopsy report did not influence the jury’s verdict, because the jury rejected the appellant’s self-defense claim and returned a manslaughter verdict. Id. at 915 n. 4.

See also Perkins v. State, 897 So.2d 457, 464 (Ala.Crim.App.2004) (finding that an autopsy report is non-testimonial in nature and, classified as a business record, it “bear[s] the earmark of reliability and probability or trustworthiness”). In Belvin v. State, No. 4D04-4235, 922 So.2d 1046, 1054 (Fla.App. 2006), the District Court of Appeal of Florida held that a breath test affidavit, prepared in connection with a breath test that was administered when the defendant was arrested for driving under the influence (“DOT”), was testimonial hearsay and, therefore, inadmissible because petitioner did not have an opportunity to cross-examine the breath test technician. In Florida, the legislature passed laws allowing the state to introduce at trial an affidavit containing the necessary evidentiary foundation for breath test results. Id. at 1048-49 (citations omitted).

The court in Belvin held that, because breath test affidavits are generated by law enforcement for use at a later criminal trial or driver’s license revocation proceeding, they fall within the third enumerated category of “testimonial” statements in Crawford, as “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 1050 . Rejecting the argument that the breath test affidavit was a public record pursuant to statute, the court in Belvin determined that the statutory listing of breath test affidavits under the public records and reports exception to the hearsay rule does not control whether they are testimonial under Crawford. Id. at 1050-51. The court agreed with Belvin, holding that the ⁴⁷⁷ portions of the breath test affidavit pertaining to the procedures followed by the technician in administering the breath test was precisely the type of evidence considered testimonial in Crawford.

Id. at 1051. We find the analysis of the court in Kansas v. Lackey, 280 Kan. 190 , 120 P.3d 332 (2005), to be persuasive in resolving the issues in the instant case. 11 In Lackey, the defendant was charged with premeditated first-degree murder and rape and convicted, in part, based upon DNA evidence. Lackey, 120 P.3d at 342 . Dr. William Eckert, the medical examiner who performed the autopsy on the victim, died before Lackey’s trial.

Id. at 341 . The State’s expert, Dr. Erik Mitchell, reviewed Dr. Eckert’s report, in conjunction with other evidence, and determined both the cause and time of death. Id. The defendant argued that the admission of Dr. Mitchell’s expert opinion, based on the autopsy performed by Dr. Eckert, should not have been admitted as it violated the Confrontation Clause.

Id. at 342 . The autopsy report in Lackey contained “an external, internal, and microscopic description of the body and did not suggest a date of death.” Id. at 345. Dr. Mitchell testified that the condition of the victim’s body suggested a specific window of time for her death, and that her death was caused by strangulation. Id. at 346.

During Dr. Mitchell’s testimony, the autopsy report was admitted over objection. The court reasoned that, even though the report was hearsay, it was not subjective, but was “a medical doctor’s rendition of what he observe[d].” Id. ⁴⁷⁸ Using the standards of Ohio v. Roberts, supra, the court admitted the autopsy report into evidence. Lackey argued that Dr. Eckert’s statements in the autopsy report were inadmissible under Crawford because they were testimonial and the defense had no opportunity for cross-examination. The Kansas Supreme Court noted that resolution of this issue involves “multiple layers of analysis, including whether the autopsy report falls under a hearsay exception, whether it was testimonial under Crawford , and whether it could be used by the State’s expert.” Id. at 346.

In conducting its analysis, the court in Lackey first determined if the autopsy report fell under a hearsay exception; whether the report was testimonial under Crawford ; and finally, whether the State’s expert could use the report. Id. The court found, inter alia, that the autopsy report fell under the business and official records hearsay exceptions, but was still subject to scrutiny under Crawford . The court in Lackey compared the autopsy report to the categories of “testimonial statements” enumerated in Crawford and also looked to the cases of other jurisdictions for guidance.

After noting cases from Alabama, Texas and New York, the court cited to the intermediate appellate court’s decision in the instant ease, stating that it was the most balanced in its approach: Under such an approach, factual, routine, descriptive, and nonanalytical findings made in an autopsy report are [non-testimonial] and may be admitted without the testimony of the medical examiner. In contrast, contested opinions, speculations, and conclusions drawn from the objective findings in the report are testimonial and are subject to the Sixth Amendment right of cross-examination set forth in Crawford. Such testimonial opinions and conclusions should be redacted in the event that the medical examiner is unavailable. No denial of due process arises under this resolution because both parties are granted access to the objective findings of the autopsy report and both parties may proceed to obtain their own expert testimony, opinions, and conclusions based upon the objective findings of the medical examiner performing the autopsy. ⁴⁷⁹ Id. at 351-55.

Ultimately, the court in Lackey stated that the cause of death noted in the autopsy report, although testimonial in nature, was merely cumulative because it was an undisputed fact, and was already established through other opinion testimony. Id. at 352. The disputed fact in Lackey was the time of the victim’s death. The court noted that the autopsy report did not contain a statement as to how long the victim had been deceased.

Id. Because the disputed fact of time of death had already been established by evidence other than the autopsy report, the court found that any error in the admission of Dr. Eckert’s statements as to the cause of death was harmless. Id. The Instant Case A. Does the Autopsy Report Fall Within a Hearsay Exception? 1.

The Business and Public Records 12 Exceptions As we have discussed supra, the Supreme Court indicated in Crawford that the hearsay exceptions, such as the business records exception, can exempt evidence from scrutiny under the Confrontation Clause. Under Maryland law, “[a] record of the Chief Medical Examiner, or any deputy medical examiner,” such as an autopsy report, is considered “competent ⁴⁸⁰ evidence in any court in this State,” if the record is “made by the medical examiner or by anyone under the medical examiner’s direct supervision or control.” Md.Code (1982, 2005 Repl.Vol.), § 5—311(d)(2) of the Health General Article. Maryland Rule 5-803(b)(6) 13 provides that records of regularly conducted business activities are not excluded by the hearsay rule, even though the declarant is available as a witness: Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if (A) it was made at or near the time of the act, event, or condition, or the rendition of the diagnosis, (B) it was made by a person with knowledge or from information transmitted by a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activity, and (D) the regular practice of that business was to make and keep the memorandum, report, record, or data compilation.

A record of this kind may be excluded if the source of information or the method or circumstances of the preparation of the record indicate that the information in the record lacks trustworthiness. In this paragraph, “business” includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Md. Rule 5-803(b)(6). This exception “represent[s][the] ... recognition that if records are reliable enough for the running of a business (or a government agency), they are trustworthy enough to be admissible at trial, particularly when one considers the practical difficulty of proving the specific facts contained in many of these records.” Joseph F. Murphy, Jr. Maryland Evidence Handbook, § 804 at 318 (3d ed. 1999).

Justice Scalia addressed specifically the nature of statements contained in business records in Crawford : “This is not to deny, as THE CHIEF JUSTICE notes, that “[t]here were always exceptions to the general rule of exclusion” of hearsay evidence.... But there is scant evidence that exceptions were invoked to admit testimonial ⁴⁸¹ statements against the accused in a criminal case. M[ost of the hearsay] exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony.” Id. at 56 , 124 S.Ct. at 1367 .

See Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 112-13 , 604 A.2d 47, 49 (1992) (holding that a trial judge “has the discretion to exclude a document that meets the technical requirements of a business record when the objecting party persuades the judge that the document lacks the degree of reliability and trustworthiness that business records are ordinarily assumed to possess.”) (footnote omitted); Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 604-605 , 495 A.2d 348, 360 (1985) (applying the public records exception to the hearsay rule and differentiating between “fact” and “opinion”); see also Md.Code (1974 & 2002 Repl. Vol), § 10-204 of the Courts and Judicial Proceedings Article. The intermediate appellate court found that any analysis pursuant to Md.Code (1974, 2002 Repl. Vol), § 10-204 of the Courts and Judicial Proceedings Article, 14 governing the ⁴⁸² admissibility of public records, would lead to the same result that the court had reached in applying the business records exception.

Specifically, factual findings contained in a document deemed to be a public record may be received into evidence so long as the document is certified as being a true copy by the custodian of records. The Court of Special Appeals, in considering the admission of opinions, as distinguished from factual findings, noted our decision in Ellsworth, supra. 15 a. The Autopsy Report in the Instant Case Was Admissible as Both a Business and a Public Record We find the intermediate appellate court’s determination that the report was a business record, and therefore non-testimonial hearsay, to be correct. During the trial in the instant case, the trial judge questioned Dr. Ripple, the deputy ⁴⁸³ medical examiner, about the procedure surrounding the making of the autopsy report: [THE COURT]: The fact is that you have a medical report before you, correct? [DR.

RIPPLE]: Yes. [THE COURT]: And when you are talking about protocol, all you know is what is on that report, correct? [DR. RIPPLE]: I know what is on this report and what is in the file. [THE COURT]: All right. And that report is required by law to be kept in the course of business, correct? [DR. RIPPLE]: Yes, Your Honor. [THE COURT]: So the entries on there are made in accord with the statute that requires the record to be kept, right? [DR.

RIPPLE]: Yes, Your Honor. Dr. Ripple testified that the autopsy reports and file were records kept during the regularly conducted business activity of the Office of the Chief Medical Examiner and that the rough body drawings and notations taken during the autopsy that she referenced were materials that are regularly relied upon in the field in order to come to a conclusion or opinion. The autopsy report in the instant case meets the definition of “record” provided by section 5-311(d) 16 of Health General Article, in addition to the definition of “record” provided in Md.Code (1974, 2002 RepLVol.), § 10—101(b) of the Courts and Judicial proceedings Article. 17 Here, we find no error in the ⁴⁸⁴ trial judge’s determination that the autopsy report was a business record. There is no suggestion apparent from the record that the autopsy report is unreliable or untrustworthy.

The purpose for which the autopsy report was prepared was, primarily, to satisfy the statutory requirements of the Health General Article. B. Notwithstanding Its Designation as Both a Business and Public Record, is the Redacted Autopsy Report Testimonial? In reviewing the enumerated formulations of the core class of “testimonial” statements, it is clear that Dr. Pestaner’s autopsy report does not fit within the first two categories of the core class of “testimonial” statements determined by the Supreme Court in Crawford . It is neither ex parte in-court testimony or its functional equivalent, a custodial examination, prior testimony, nor an extrajudicial statement contained in formalized testimonial materials.

We find that the only category under which the autopsy report might fall is that of “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.” The information that was not redacted from the autopsy report, while it might eventually be used in a criminal trial, was not created for that express purpose, and was statutorily required to be determined by the medical examiner and placed into the ⁴⁸⁵ report pursuant to § 5-311 of the Health General Article. 18 ⁴⁸⁶ Unlike the interview in Snowden , the express purpose for the preparation of the autopsy report was not for use in a criminal trial. 19 It is clear that there is a statutory duty to prepare such a report when a death has occurred in “any suspicious or unusual manner.” Md.Code (1982, 2005 RepLVol.), § 5-309(b) of the Health General Article. At the occurrence of a suspicious death, the medical examiner is required to make a determination as to cause of death and to generate an autopsy report. This determination is not always used at a later criminal trial. When the report is offered as evidence against the defendant at trial, in a criminal case, we conclude that an autopsy report is not per se “testimonial” in light of Crawford .

The trial court must determine whether the report contains testimonial or non-testimonial hearsay statements. The testimonial statements may not be admitted against the defendant at trial, unless the declarant is ⁴⁸⁷ unavailable and there was a prior opportunity for cross-examination. 1. Contested Conclusions of Opinions vs. Non-Analytical Findings That Are Objectively Ascertained Petitioner contends Dr. Pestaner’s remaining statements in the autopsy report were contested conclusions, rather than non-analytical findings, and thus were testimonial in nature, per Crawford , because they proved an element of the crime and should not have been admitted without allowing petitioner to confront Dr. Pestaner. We disagree.

Although Dr. Pestaner was not present to testify, we conclude that the statements included in the autopsy report, as admitted, were findings as to the physical condition of Ms. Ebberts’s body. They were non-analytical findings that we do not view to be part of the core class of testimonial statements that the Confrontation Clause is intended to prevent. The “findings” included in the autopsy report to which petitioner objects include: 20 (1) that there was a superficial hemorrhage on the gumline of Ms. Ebberts, (2) that there were fresh bruises on Ms. Ebberts’s arms, and (3) that Ms. Ebberts’s corneas were cloudy. Petitioner argues whether something is cloudy or not is a matter of interpretation.

Rollins also ⁴⁸⁸ argues that he should have had the opportunity to cross-examine Dr. Pestaner to determine whether the corneal cloudiness noted in the autopsy report could have occurred during the refrigeration of Ms. Ebberts’s body before the autopsy was performed. At oral argument in this Court, defense counsel stressed the subjectivity of this classification. The autopsy report simply stated, “The corneae were cloudy.” The defense expert, Dr. James Frost, medical examiner for the State of Delaware, testified that he observed “the very slightest amount of corneal clouding which is a post-mortem change.” Dr. Frost went on to opine that if Ms. Ebberts had been dead for three days and her eyes had been open, there would be extensive corneal clouding. The Court of Special Appeals rejected Rollins’s contention that characterizations in the autopsy report such as “chronic,” “acute,” and “cloudy” are matters of interpretation that, accordingly, constitute opinions.

The court characterized those terms as “descriptive,” and stated that such terms “may be objectively quantified; thus, they are not subject to significantly different interpretations by the witnesses. More importantly, the descriptive terms in question only tangentially touch upon the matters in dispute regarding corpus delecti or criminal agency.” Rollins, supra, 161 Md.App. at 79 , 866 A.2d at 952 . The intermediate appellate court reviewed the report regarding the eleven major systems of Ms. Ebberts’s body 21 ⁴⁸⁹ and concluded that the findings were “virtually all descriptive, rather than analytical.” Id. (Footnote omitted.) The Court of Special Appeals ultimately held: We hold that the findings in an autopsy report of the physical condition of a decedent, which are routine, descriptive and not analytical, which are objectively ascertained and generally reliable and enjoy a generic indicium of reliability, may be received into evidence without the testimony of the examiner.

Where, however, contested conclusions or opinions in an autopsy report are central to the determination of corpus deleebi or criminal agency and are offered into evidence, they serve the same function as testimony and trigger the Sixth Amendment right of confrontation. Id. at 82 , 866 A.2d at 954 . The autopsy report in the instant case was redacted to omit any information that could be construed as an “opinion.” In its discussion of hearsay exceptions in the context of the ⁴⁹⁰ Confrontation Clause in Crawford , the Supreme Court referred to “exceptions that covered statements that by their nature were not testimonial.” The redaction of the autopsy report places the report into the category of non-testimonial hearsay as contemplated by the Supreme Court. We are not convinced that Dr. Pestaner’s specific findings that remained in the autopsy report were of the type that amounted to “contested conclusions,” and the defense has presented no case law that supports that contention.

The Court of Special Appeals rejected Rollins’s contention that, absent the testimony of the person who prepared an autopsy report, the distinction between fact and opinion in an autopsy report no longer plays a role in determining whether the admission of that report violates the accused’s right to confrontation. Rollins, 161 Md.App. at 76 , 866 A.2d at 950 (footnote omitted). In doing so, the court stated: “Contrary to [Rollins’s] position, ‘fact’ as defined in [Ward v. State, 76 Md.App. 654 , 547 A.2d 1111 (1988)], continues to be squarely within the firmly fixed exceptions to the hearsay mile. The objectively obtained findings of the physical condition of the victim, not subject to interpretation, constitute the ‘facts.’ ” Id.

Although the Ward case is distinguishable in that it involved psychiatric evaluations, 22 the case is illustrative. We noted in Ward that “the fact that a hospital record may be generally admissible as a business record, against either a hearsay or confrontation objection,'does not necessarily mean that each ⁴⁹¹ and every entry in it is so admissible.” Id. at 659-60 , 547 A.2d at 1114 . The Court of Special Appeals relied upon Gregory v. State, 40 Md.App. 297 , 391 A.2d 437 (1978), quoted with approval in State v. Garlick, 313 Md. 209, 220-21 , 545 A.2d 27, 32 (1988): “The mere fact that a document is part of a hospital record made in the ordinary course of the hospital’s business, and may therefore be admissible under the hearsay rule, does not ipso facto make its admission comply with the confrontation requirement.... We have here not the routine record of a person’s birth, or death, or body temperature, nor any other similar statement of fact or condition objectively ascertained, generally reliable and normally undisputed, and free from any motive to record falsely.

We are dealing with the opinions of supposed expert witnesses, who, in this document, are giving testimony not only as to appellant’s mental condition, but, more importantly, as to whether or not he is criminally responsible.” Id. at 660, 547 A.2d at 1114 (quoting Gregory, supra, 40 Md.App. at 325-26 , 391 A.2d at 454 ). As noted in Ward, the intermediate appellate court in Gregory focused on the recognition that psychiatry is not an exact science and that opinions as to mental condition vary widely. Id. at 660-61, 547 A.2d at 1114 . The court in Ward noted that the issue of a criminal defendant’s mental condition was highly contentious and [tjhis kind of diagnosis does not lend itself to objective confirmation.

It is not something that can be validated by microscopic, chemical, or other precise scientific examination but remains primarily a matter of opinion based principally upon a trained professional’s evaluation of the subject’s behavior and responses to psychological testing. Unlike the kinds of medical facts noted in Gregory or medical conclusions having a more objective foundation, such as blood tests, this kind of opinion, especially where ⁴⁹² contested, is not so cloaked with a substantial indicium of reliability as to escape the need for confrontation. Id. at 661, 547 A.2d at 1114 . In the instant case, the disputed statements in the autopsy report made by Dr. Pestaner focused on conditions that could be physically observed, rather than a mental diagnosis, such as the one at issue in Ward, which was highly subjective in nature.

The observations of Dr. Pestaner are more in line with the findings of medical examiners that constitute nonanalytieal findings that are objectively ascertained i.e., the determination and description of the weight, characteristics and description of the deceased. Petitioner objected to the fact that Sergeant Rose Brady, a detective of the Baltimore County Homicide Division, sent Dr. Pestaner a facsimile transmission. 23 In addition, ⁴⁹³ petitioner objected to several objective findings made by Dr. Pestaner contained in the autopsy report. 24 ⁴⁹⁴ One of the objective findings to which petitioner objected was the cloudiness of Ms. Ebberts’s corneae. While Dr. Pestaner noted only that the corneae were cloudy, the defense did not establish that this classification was outside the normal realm of determinations of the medical examiner, nor did it demonstrate that it would have been more appropriate for Dr. Pestaner to describe the corneae in incremental degrees of cloudiness. The defense was able to present its own expert witness who, upon viewing the photos of Ms. Ebberts’s eyes, came to a different conclusion about the degree of cloudiness in the corneae.

Findings, such as those made by Dr. Pestaner with regard to the cloudiness of the corneae, were not only observable by an experienced medical examiner, 25 but in this case were corroborated by photographs of the victim’s eyes. In fact, Dr. Frost, medical expert for the defense, used the same photos to view Ms. Ebberts’s corneae and make his own determination that Ms. Ebberts’s corneae were cloudy, but only slightly so. The nature of Dr. Pestaner’s determination was that of a State required and regulated, autopsy examination in which Dr. Pestaner was charged by law with examining the victim and determining the manner and cause of death. 26 As Chief Medical Examiner, Dr. Pestaner’s experience in making these types of assessments was undoubtedly sufficient. The determination of corneal cloudiness made by Dr. Pestaner was descriptive of the perceived condition of the victim’s eyes at ⁴⁹⁵ the time reported.

Moreover, our review of the record indicates that the trial judge was fairly thorough and meticulous in his monitoring of the testimony of Dr. Ripple to prevent contested conclusions and opinions from being admitted, and in the admission of the redacted autopsy report and related documents, and at all times observed Rollins’s right to confrontation. Dr. Pestaner’s determinations generally were routine, descriptive, and generally reliable, and as such, was not testimonial. This type of information was properly admitted into evidence through the autopsy report without Dr. Pestaner’s testimony. 2. The Autopsy Report, as Redacted, Was Not Testimonial; Autopsy Reports Are Not Per Se Testimonial The opinion statements in the autopsy report were redacted.

We reject petitioner’s contention that an autopsy report is per se testimonial pursuant to Crawford , and should never be admitted into evidence without the testimony of the author of the report. First, we note that Maryland common law supports the contention that factual findings as to the physical condition of the victim’s body, as described in an autopsy report, may be admitted without the testimony of the person who prepared the report without violating the Confrontation Clause. See Bowers v. State, 298 Md. 115, 136-87 , 468 A.2d 101, 112 (1983). 27 ⁴⁹⁶ Secondly, we note the impractical implications to classifying autopsy reports as inadmissible testimonial hearsay because the person who prepared them is not present to testify. As noted in Durio, years may pass between the performance of the autopsy and the apprehension of the perpetrator that can easily lead to the unavailability of the examiner who prepared the autopsy report.

At oral argument, in this Court, defense counsel was given a hypothetical about a situation in which the maker of an autopsy report dies before the date of trial. Defense counsel stated that, even in that situation, the maker of the autopsy report would still be required to meet Crawford standards, and in the maker’s absence, the State would be required to prove the victim’s death in another manner. This is unacceptable in practical application and is not supported by Crawford . In the present case, the Circuit Court had before it an autopsy report prepared by the Maryland Medical Examiner’s Office that is otherwise admissible as a business record or as a public record pursuant to Md. Rule 5-803(b)(6) and Md.Code (1974 & 2002 Repl.

Vol), § 10-204 of the Courts and Judicial Proceedings Article. As we have already discussed, the statutorily required information contained in the autopsy report, as a business record, was not testimonial in nature, and therefore, did not violate Rollins’s right to confrontation. We note the Supreme Court’s statement in Crawford : “Where [non-testimonial] hearsay is at issue, it is wholly consistent with the ⁴⁹⁷ Framers’ design to afford the States flexibility in their development of hearsay law ... as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Id. at 68 , 124 S.Ct. at 1374 . Here, petitioner has failed to demonstrate that the remaining contested statements in the redacted autopsy report are testimonial and, thus, subject to scrutiny under the Confrontation Clause.

Although an autopsy report may be classified as both a business and a public record, it is the contents of the autopsy report that must be scrutinized in order to determine the propriety of its admission into evidence without the testimony of its preparer. If the autopsy report contains only findings about the physical condition of the decedent that may be fairly characterized as routine, descriptive and not analytical, and those findings are generally reliable and are afforded an indicum of reliability, the report may be admitted into evidence without the testimony of its preparer, and without violating the Confrontation Clause. If the autopsy report contains statements which can be categorized as contested opinions or conclusions, or are