Lead Opinion
In light of a recent United States Supreme Court case that further defines the scope of the rights granted under the Confrontation Clause, Melendez-Diaz v Massachusetts,
I. FACTS AND PROCEEDINGS
The trial court convicted defendant of second-degree murder, MCL 750.317, for causing the death of her domestic partner, Paul Michael Burley. At trial, the prosecution maintained that defendant injected Burley with insulin because she was frustrated and overwhelmed by the demands of attending to Burley’s considerable medical needs. Defendant used insulin to treat her own diabetes, and she knew that insulin breaks down almost immediately upon death and cannot be detected in a dead body. Defendant took the position at trial that Burley died from a morphine overdose or, if he died from an insulin injection, he committed suicide in order to relieve defendant of the burden of caring for him.
In People v Dendel, unpublished opinion per curiam of the Court of Appeals, issued July 18, 2006 (Docket No. 247391) (Dendel I), we reversed defendant’s conviction and remanded for a new trial on the basis of defendant’s claim of ineffective assistance of counsel. Our Supreme Court reversed and remanded this case for us to consider defendant’s remaining issues raised on appeal. People v Dendel,
II. OUR DECISION IN DENDEL II
Defendant’s hearsay and Confrontation Clause arguments concern the testimony of Dr. Michael Evans. In Dendel II, we summarized the relevant facts as follows:
Dr. Evans is a toxicologist at AIT Laboratories, and president and [chief executive officer] of the company. He manages the corporation and directs laboratory operations. AIT Laboratories provides services to the clinical community and hospitals throughout the county, as well as the pharmaceutical industry by performing research to aid in new drug development. The laboratory also performs forensic toxicology testing in autopsy cases. Dr. Evans described the logistics and procedures for autopsy testing at the request of medical examiners’ offices.
Here, the laboratory performed a pane 1 autopsy test on a sample of Burley’s blood, urine, and vitreous fluids at the request of Dr. John Mayno from the Jackson County Medical Examiner’s office. Dr. Evans explained that in such cases, the technicians “proceed as if we have no information” and “proceed without any preconceived notion about what we’re going to look for in starting our testing process.” He testified at length about the procedures utilized in the lab, and the many substances that the autopsy tests identify.
Dr. Evans testified generally about the relationship between insulin and glucose levels, and the body’s response to insulin. He explained the difficulty of testing for the presence of insulin during an autopsy. Dr. Evans then testified that the toxicology results showed that the level of glucose in Burley’s system was zero. He opined that the zero glucose level was consistent with Burley having been injected with insulin. Defense counsel objected to the admission of Dr. Evans’ testimony about the toxicology results as lacking proper foundation because Dr. Evans did not perform the autopsy test himself. Dr. Evans stated that about fifteen people from his lab were involved in the testing. The trial court ruled that an adequate foundation had been laid for the admission of Dr. Evans’ testimony, and that the toxicology results came within the exception to the hearsay rule for business records. [Dendel II, unpub op at 2.]
Defendant argued in Dendel II that the trial court abused its discretion by admitting Dr. Evans’s testimony about the results of toxicology tests of Burley’s bodily fluids because Dr. Evans did not perform the tests. Id. Citing Crawford v Washington,
“Defendant relies on Lonsby, supra, a sexual assault case in which this Court ruled that the notes and laboratory report of a nontestifying serologist were testimonial in nature, and were admitted in violation of the defendant’s Sixth Amendment right to confront witnesses against him. However, in Lonsby, this Court clarified:
“The critical point... is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others. In short, one expert cannot act as a mere conduit for the opinion of another.” [Lonsby, supra at 393 n 12, quoting State v Williams, 253 Wis 2d 99 , 113;644 NW2d 919 (2002).]
This “critical point” makes Lonsby distinguishable from the present case. Here, unlike in Lonsby, the witness did not testify to subjective observations from the toxicologists who performed the autopsy test. Dr. Evans did not speculate about any reasoning or judgment exercised by the nontestifying toxicologists. Id. at 392. The zero-level of glucose in Burley’s system was an objective result, and Dr. Evans formed his own expert opinion on the basis of that finding. And unlike the police crime lab serologist in Lonsby, Dr. Evans was not employed by law enforcement. He testified that the lab testing is performed without any preconceived notions about what might be found, and without any case background.
Additionally, autopsy reports are not testimonial because they are public records prepared pursuant to a duty imposed by law as part of the statutorily defined duties of a medical examiner. See MCL 52.202(1)(a) (mandating a medical examiner to conduct an autopsy when the deceased’s death was unexpected), MCL 52.207 (mandating a medical examiner to conduct an autopsy upon the order of a prosecuting attorney). Therefore, the autopsy and toxicology reports qualify as public records under MRE 803(8). Thus, the toxicology results were not testimonial in nature, and Dr. Evans’ testimony based on the results did not violate defendant’s rights under the Confrontation Clause. [.Dendel II, unpub op at 3-4.]
After we issued our opinion in Dendel II, the United States Supreme Court issued its decision in Melendez-Diaz. Because this decision directly addressed the question of a defendant’s confrontation rights in the context of laboratory reports prepared by nontestifying witnesses, our Supreme Court remanded Dendel to this Court in order to reexamine Confrontation Clause issues arising from Dr. Evans’s reliance on glucose-level findings made by nontestifying personnel at AIT Laboratories.
III. CONFRONTATION CLAUSE JURISPRUDENCE
To decide whether the admission of hearsay evidence violated defendant’s due-process right to confront witnesses, we must examine recent Supreme Court decisions interpreting the Confrontation Clause. Hearsay is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c); People v McLaughlin,
In Crawford,
The Supreme Court held that statements are not testimonial “when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis,
In Bryant,
After we issued our opinion in Dendel II, the United States Supreme Court issued its decision in Melendez-Diaz. The prosecution had charged the defendant in Melendez-Diaz with narcotics-trafficking offenses. In order to prove that the substance in question was cocaine of a certain quantity, the prosecution introduced into evidence sworn certificates of state laboratory analysts documenting the results of tests performed on the material seized by the police. Melendez-Diaz,
Responding to various other arguments raised by the dissent and the prosecution, the Court rejected the assertion that the analysts were not “accusatory” witnesses, and therefore not subject to confrontation. The Court commented that the Confrontation Clause “contemplates two classes of witnesses” — those against the defendant and those in his favor — omitting a third category of witnesses who were “helpful to the prosecution, but somehow immune from confrontation.” The Court was not persuaded that the analysts’ statements were exempt from the Confrontation Clause on the ground that the statements were not independently sufficient to establish the defendants’ guilt. Id. at _;
The Court in Melendez-Diaz also rejected the dissent’s and the prosecution’s arguments that the reliability of objective, neutral scientific testing obviated the need for confrontation and that cross-examination was an inferior method of challenging scientific testing. The Court stated:
Respondent and the dissent may be right that there are other ways — and in some cases better ways — to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available. Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation.... A forensic analyst responding to a request from a law enforcement official may feel pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution. [Id. at _;129 S Ct at 2536 ;174 L Ed 2d at 326 (emphasis added).]
Finally, the Court in Melendez-Diaz addressed the argument that the analysts’ affidavits were admissible without subjecting the analysts to confrontation under the business-records exception to the hearsay rules. The Court concluded that the certificates were not admissible as business records because they were more akin to reports generated by law-enforcement officials. Id. at _;
Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here — prepared specifically for use at petitioner’s trial— were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment. [Id. at _;129 S Ct at 2539-2540 ;174 L Ed 2d at 329-330 (emphasis added).]
The Court demurred to the dissent’s remaining assertions that its holding drastically departed from prior jurisprudence or that it would “commence the parade of horribles” unfairly hampering prosecution of drug charges. Id. at _;
Several post-Melendez-Diaz cases have addressed Confrontation Clause issues in the context of autopsy reports or similar reports containing scientific data. In People v Lewis, unpublished opinion per curiam of the Court of Appeals, issued April 15, 2008 (Docket No. 274508), this Court had ruled that no Confrontation Clause violation occurred when the medical examiner testified with regard to an opinion based on an autopsy report prepared by two nontestifying medical examiners. The Supreme Court, in lieu of granting leave to appeal, vacated in part the judgment of the Court of Appeals and remanded the case to the Court of Appeals for reconsideration of this issue in light of Melendez-Diaz. People v Lewis,
In Commonwealth v Avila, 454 Mass 744, 760;
Expert opinion testimony of this nature does not offend the confrontation clause as interpreted by the Supreme Court of the United States in Crawford v. Washington,541 U.S. 36 ,124 S. Ct. 1354 ,158 L. Ed. 2d 177 (2004) {Crawford) (confrontation clause prohibits admission of testimonial out-of-court statements unless declarant unavailable and defendant had prior opportunity to cross-examine declarant about statements), and most recently in Melendez-Diaz v. Massachusetts, [557 US _ ]129 S. Ct. 2527 ,174 L. Ed. 2d 314 (2009) (deeming certificates of forensic laboratory analysis offered in evidence in lieu of testimony as testimonial, and thus subject to Crawford, because certificates were affidavits prepared for sole purpose of serving as evidence at trial). [Id. at 762.]
The Massachusetts Supreme Judicial Court held that the trial court erred when it allowed the substitute medical examiner to testify on direct examination regarding the findings in the autopsy report, but it concluded that the unpreserved error “did not result in a substantial likelihood of a miscarriage of justice” because the erroneously admitted testimony was cumulative of other properly admitted evidence. Id. at 763.
In State v Locklear, 363 NC 438;
Following Melendez-Diaz, at least two courts have held that factual statements from nontestifying forensic analysts may be used to support the conclusions and opinions of testifying expert witnesses. In People v Johnson, 394 Ill App 3d 1027;
Word, a Cellmark analyst, testified about the laboratory’s procedures and practices regarding DNA testing, though she did not participate in the testing. She used the report that was prepared as the basis of her expert opinion that the proper procedures were followed in the analysis. Defendant’s attorney was able to cross-examine Word about the basis of her opinion and called attention to the fact that she did not participate in the testing and that she assumed that the analysts properly documented each part of the testing, as required by Cellmark. The same reasoning holds true for Schoon. He used the Cellmark report as the basis for part of his opinion that the male DNA profiled [sic] obtained from the crime scene matched defendant’s DNA. The Cellmark report was not offered to prove the truth of its contents, but was used as part of the bases for two experts’ opinions. Accordingly, we find no Crawford violation in this case, and thus, no error. [Id. at 1034.]
The court also noted that DNA analysis results are not “accusatory” because they might lead to either incriminatory or exculpatory results. Id. at 1035.
In Johnson, the Illinois court ruled that its analysis under Crawford was not altered by the Supreme Court’s decision in Melendez-Diaz. The court quoted the footnote in Melendez-Diaz disclaiming the inference that all persons involved in the chain of custody, authenticity of the sample, or accuracy of the testing device were required to give live testimony. Id. at 1036-1037. The court also stated:
Significantly, the decision in Melendez-Diaz did not reach the question of whether the analyst who conducted the scientific tests must testify at a defendant’s trial, which is the issue raised by defendant in the instant case. In contrast with certificates presented at trial in Melendez-Diaz, Word and Schoon each testified in person as to their opinions based on the DNA testing and were subject to cross-examination. [Id. at 1037.]
The court held that “the holding in Melendez-Diaz is distinguishable from instances in which a witness testifies at trial about scientific analyses in which he or she did not participate in the analysis . ...” Id. at 1038.
The court in Johnson relied substantially on a decision from the California Court of Appeal, People v Rutterschmidt, 176 Cal App 4th 1047; 98 Cal Rptr 3d 390 (2009). In Rutterschmidt, two codefendants, Olga Rutterschmidt and Helen Golay, were accused of fatally drugging one of their victims, Kenneth McDavid, to collect money from fraudulently obtained life insurance policies. Golay, but not Rutterschmidt, objected on Confrontation Clause grounds to the testimony of Joseph Muto, the chief laboratory director of the Los Angeles County Department of Coronor, who testified about the presence and quantity of prescription drugs and alcohol found in McDavid’s blood samples. The court summarized Muto’s testimony regarding his involvement in the testing as follows:
Muto offered expert testimony as to the results of the toxicology analyses performed on samples of McDavid’s blood. The testing was done under his supervision, and he signed the two reportscontaining the testing results. As the chief laboratory director, Muto had degrees and a license in toxicology and was a certified blood-alcohol analyst. He explained that in conducting toxicology analyses, criminalists in the laboratory performed tests on samples of biological material taken during autopsies. Four laboratory criminalists under his supervision performed the testing on McDavid’s samples. Muto was familiar with all the criminalists in the laboratory. With regard to every toxicology report issued from his laboratory, he conducted either an administrative review or a peer review. In the former, before certifying the testing results, he would review the entire case to verify compliance with proper procedures and scientific standards, including quality control. As a peer reviewer, he acted as a second chemical analyst to ensure a sufficient informational foundation for the original analyst’s conclusions. All final reports go out under his signature, reflecting that he examined the documentation and analytical work comprising the final report. [Id. at 1071.]
Muto verified that the analyses were performed according to laboratory procedures and that he reviewed the reports. Id. at 1072.
The court in Rutterschmidt commented that there was “no federal Supreme Court or California authority for the proposition that Crawford precludes a prosecution scientific expert from testifying as to an opinion in reliance upon another scientist’s report.” Id. at 1073. The court rejected Golay’s argument that the Supreme Court’s decision in Melendez-Diaz warranted a different result. It distinguished the toxicological findings from the sworn certificates in Melendez-Diaz on the ground that the former were not sworn affidavits entered into evidence. The court stated:
Here, in contrast, the toxicological findings were not proved by means of an affidavit. As we have shown, Muto testified as a qualified expert, subject to cross-examination, that his review of data obtained under his supervision supported his conclusion as to the presence of alcohol and drugs in biological samples taken from McDavid’s body. The Melendez-Diaz decision did not reach the question of whether such expert testimony runs afoul of Crawford. Indeed, the lead opinion speaks for a court majority only on the narrow basis set forth in Justice Thomas’s concurring opinion — “that ‘the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.’ [Citations.]” (Melendez-Diaz, supra, [557] U.S. at p. _,129 S. Ct. at p. 2543 , [174 L Ed 2d at 333 ] (cone. opn. of Thomas, J.).) Accordingly, the testimony challenged by defendant Golay does not fall within the Melendez-Diaz majority’s holding. [Id. at 1075.]
The court affirmed Golay’s conviction. Id. at 1087. On December 2, 2009, the California Supreme Court granted Golay’s petition for review, limited to the issue whether Muto’s testimony violated Golay’s right to confront witnesses and whether the decision in Melendez-Diaz affected the decision. People v Rutterschmidt, 102 Cal Rptr 3d 281;
We also take into consideration two cases decided before Melendez-Diaz that addressed the issue of hearsay evidence to establish objective data underlying an expert’s opinion. In United States v Richardson,
Bance testified about DNA testing performed by another scientist in the office, Jacquelyn Kuriger. Bance testified that she personally “didn’t actually receive the evidence in this case,” but instead “received the case file with [Kuriger’s] notes and results.” Bance did, however, perform a peer review, in which she “lookfed] for basically everything down to that the i’s are dotted and the t’s are crossed. And if there’s anything crossed out, are they initialed.” Bance looked to make sure “everything is ... complete from the start of the case in the analysis to the end of the DNA results and the report.” Bance testified, generally, the role of the peer reviewer is to “go through all of the case notes and documentation” the initial scientist did “to be sure that everything has been done properly and documented properly.” Bance testified that “[t]he peer reviewer in a DNA case also does a second independent analysis of the DNA data and compares” it to the first scientist’s review “to he sure that the two scientists agree in all aspects of the DNA testing.” [Id. at 955-956.]
Bance “did not perform or witness any DNA testing of the samples,” but “testified as to the tests Kuriger performed and the procedures and controls Kuriger used, as well as the results of Bance’s own independent analysis of Kuriger’s data.” Bance “admitted her only knowledge of the tests was from reviewing the paperwork Kuriger generated, conducting a second independent analysis of Kuriger’s data, and comparing her analysis of the data with Kuriger’s analysis of the same data.” Id. at 956. Reviewing the Confrontation Clause issue under the plain-error standard for unpreserved issues, the court concluded that the error, if any, was not plain error. The court noted that neither the United States Supreme Court nor the United States Court of Appeals for the Eighth Circuit had addressed the question whether DNA samples and related testimony were testimonial. It commented that other federal courts had ruled that DNA samples themselves are not testimonial. Id. at 960. The Court further held:
Additionally, the admission of Bance’s testimony that Richardson’s DNA evidence matched the DNA evidence found on the gun was not in error. Richardson argues that the tests and conclusions performed by Kuriger are testimonial; therefore Bance could not testify as to these without violating the Confrontation Clause. Bance, however, testified as to her own conclusions and was subject to cross-examination. Although she did not actually perform the tests, she had an independent responsibility to do the peer review. Her testimony concerned her independent conclusions derived from another scientist’s test results and did not violate the Confrontation Clause. [Id. at 960.]
The Supreme Court denied certiorari in Richardson a month before issuing its decision in Melendez-Diaz. Richardson v United States,
In United States v De La Cruz,
An autopsy report is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. Such a report is, we conclude, in the nature of a business record, and business records are expressly excluded from the reach of Crawford. [Id. at 133.]
The court was “unpersuaded that a medical examiner is precluded under Crawford from either (1) testifying about the facts contained in an autopsy report prepared by another, or (2) expressing an opinion about the cause of death based on factual reports — particularly an autopsy report — prepared by another.” Id. at 134. The Supreme Court denied certiorari in De La Cruz only four days after it issued its opinion in Melendez-Diaz. De La Cruz v United States,
Thus, at least one post -Melendez-Diaz case, Avila, 454 Mass 744, holds that statements asserting objective scientific data are testimonial statements subject to confrontation under the Sixth Amendment and, therefore, are not admissible absent an opportunity to cross-examine the witness who produced the statement. At least three post -Melendez-Diaz cases, including one from this Court, Lewis (On Remand),
IV APPLICATION OF MELENDEZ-DIAZ AND ITS PROGENY
We hold that the statements here are testimonial. We would be bound by Lewis (On Remand),
We further observe that in Lewis the cause of death was not a central issue because there was no question that the victim died from multiple stab wounds. Rather, the pivotal issue in Lewis was whether the defendant was the person who inflicted the stab wounds. The autopsy findings had no relevance to the issue of the perpetrator’s identity. In contrast, Burley’s cause of death is the primary factual question in this case. Evidence regarding the glucose finding does not conclusively prove defendant’s guilt, because questions remain about the significance of the result and there remains the possibility that the death was suicide. However, it supports the prosecution’s theory that Burley died of an insulin injection.
Of the aforementioned cases, we find Avila, 454 Mass 744, to be the most persuasive, the most consistent with the Supreme Court’s holding in Melendez-Diaz, and the most factually analogous to this case. The court in Avila held that statements in an autopsy report prepared by a nontestifying medical examiner were subject to confrontation, notwithstanding that the statements served as the facts underlying the testifying expert’s opinion. Similarly, the court in Locklear, 363 NC 438, concluded that statements in an autopsy report and forensic dentistry report were subject to confrontation. These holdings are fully consistent with Melendez-Diaz. Quoting Crawford,
As noted, the Melendez-Diaz Court also rejected the argument that “neutral scientific testing” obviated the need for confrontation. The Court disagreed that purportedly “neutral” testing was necessarily as neutral or as reliable as the prosecution suggested, commenting that forensic scientists are not immune from error or to pressures to speed up their work or obtain a particular result. Id. at _;
This case is illustrative. The affidavits submitted by the analysts containedonly the bare-bones statement that “[t]he substance was found to contain: Cocaine.” At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use “methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs.” At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. [Id. at _; 129 S Ct at 2537 ;174 L Ed 2d at 327 (citations omitted).]
And, as discussed, the Court in Melendez-Diaz rejected the proposition that the certificates were business records not subject to confrontation. The Court noted that the certificates were more akin to police reports because they were intended mainly for use in the courts. Id. at _;
Here, the laboratory technicians’ finding that Burley’s glucose level was zero at the time of death was the fact on which Dr. Evans based his opinion that an insulin injection was a possible cause of his death. Although the statement concerning a glucose level of zero has no independently incriminating effect, it was nonetheless an accusatory statement under Melendez-Diaz because it supported the prosecution’s theory that defendant had killed Burley by injecting him with insulin. Although the glucose-level finding was purportedly the result of neutral scientific testing, the Court in Melendez-Diaz ruled that such testing is not exempt from the Confrontation Clause because of the possibility of error or bias. Id. at _;
We also hold that the technicians’ statement of a zero-glucose finding comports with the factors indicating a testimonial statement as delineated in Davis,
We are unpersuaded that the federal circuit court decisions in Richardson,
Previously, we ruled that the glucose report was admissible under the hearsay exception for public records. However, the Supreme Court in Melendez-Diaz,
Furthermore, this case is distinguishable from Richardson,
Finally, we are unpersuaded by the holding in Rutterschmidt, 176 Cal App 4th 1047, that the toxicological findings were distinguishable from the certificates in Melendez-Diaz because the certificates were sworn affidavits made expressly for trial. The salient concern in Melendez-Diaz was that the prosecutor used hearsay statements in lieu of live testimony to establish a scientific fact that was key to the prosecution’s case, denying the defendant the opportunity to cross-examine the persons who performed the tests and issued the certificates. The concern that this use of hearsay implicates the Confrontation Clause is not diminished when the statement is unsworn rather than sworn.
We therefore conclude that defendant’s Sixth Amendment right to confront witnesses was violated when Dr. Evans was permitted to give hearsay testimony that other persons in the AIT laboratory determined that Burley’s glucose level was zero at the time of his death.
V. RELIEF
As noted, defendant failed to raise a timely objection to Dr. Evans’s testimony on Confrontation Clause grounds. However, the trial in this case took place before Melendez-Diaz and Crawford were decided. The applicable test when defendant was tried, enunciated by the Court in Ohio v Roberts,
Fundamental fairness requires that this issue be reviewed as though it were fully preserved. See People v Shirk,
[Dr. Pacris] found acute tubular necrosis in the kidneys and dead cells in the proximal tubules of the brain, which are usually seen in people who have suffered hypoglycemic shock. Dr. Pacris ultimately concluded that the cause of death was complications from hypoglycemia, which can be caused by an insulin injection. In reaching this conclusion, he relied more on his anatomical findings and the circumstances surrounding the death rather than on the toxicological findings. Specifically, he relied on microscopic hypoxic changes in Burley’s brain in concluding that Burley must have been comatose for at least 12 hours before he died at 4:00 p.m. on April 2, 2002. He testified that hypoxic changes to the brain, including red neurons on the hippocampus, are only manifested if the person has been comatose for about 12 hours. [Id. at 126-127 (emphasis added).]
In her dissent, Justice KELLY agreed that “[t]he process by which Dr. Pacris determined the cause of death was founded on an anatomical basis and the circumstances surrounding the death rather than on toxicological findings.” Id. at 142 (KELLY, J., dissenting).
As our Supreme Court also observed, defense counsel took the position at trial that “Burley had died either by injecting himself with insulin or from the side effects of numerous medications prescribed for him.” Id. at 121 (majority opinion). The importance of the zero-glucose finding is severely undermined by this defense, which accepts the fact that Burley may have taken insulin and merely avers that Burley injected it into himself. The Supreme Court further stated in the opinion:
After defendant’s arrest, she told police detectives that Burley had injected himself with insulin. During a later interview with a police detective, defendant said, “That poor dear, he killed himself for me.” She told the detective that despite Burley’s severely impaired vision and problems with holding things, he could inject himself with insulin. Defendant also told defense counsel that Burley had killed himself by an insulin injection and that she wanted him to pursue this theory of defense at trial. Defendant also testified that Burley had mental problems and that he had “talked suicide for 10, 15 years.” She had informed two of Burley’s doctors of his suicidal intentions. [Id. at 120-121.]
Moreover, evidence other than the scientific findings played a significant role in defendant’s conviction:
[Sjtrong circumstantial evidence supported the theory that defendant had given Burley an insulin injection.
Burley was difficult to care for because of his multiple health problems, which included dementia. Defendant was under a great deed of stress as Burley’s sole caregiver. Frustrated by Burley’s demands, defendant had considered giving him a shot of insulin, which she knew could be lethal and would be difficult to detect in a deceased person. When her caregiving situation became worse, defendant unsuccessfully attempted to obtain assistance in caring for Burley from several sources. Less than 24 hours before Burley’s death, defendant became “quite tearful and upset” when the nurse assisting defendant terminated her services because Burley had been uncooperative. Defendant admitted that she was at her “wit’s end” in the middle of that night when the police declined to take Burley away after he caused a disturbance. In light of the facts leading up to Burley’s death, the trier of fact could reasonably conclude that this nighttime incident caused defendant to finally snap and follow through with her idea to inject Burley with insulin. This finding would be consistent with Dr. Pacris’s testimony that hypoxic changes in Burley’s brain indicated that he had fallen into a coma from insulin-induced hypoglycemic shock at about 4:00 a.m., shortly after the police left.
The trier of fact could also infer that defendant’s actions after Burley’s death demonstrated her guilty state of mind and her attempt to cover up the crime. Defendant testified that when she suspected that Burley might be dead, she did not contact 911, but instead called a friend to come over. Defendant lied to Burley’s family about his condition and hid his death from the only persons who might have questioned the cause of death and recalled her threat to inject him with insulin. Moreover, defendant managed to have Burley’s body cremated before Burley’s family could question the cause of death. She had also wanted Burley’s hody cremated without an autopsy being performed, but was unable to prevent the autopsy. This circumstantial evidence regarding defendant’s state of mind further supports the prosecution’s theory that defendant murdered Burley. [Id. at 132-134.]
In light of Dr. Pacris’s testimony, defendant’s position at trial, and the circumstantial evidence surrounding Burley’s death, we hold that it is clear beyond a reasonable doubt that a reasonable jury would have convicted defendant absent the inadmissible evidence regarding the toxicological results. Accordingly, the Confrontation Clause error was harmless beyond a reasonable doubt, and defendant is not entitled to a new trial.
Affirmed.
Notes
Justice Scalia, joined by Justices Stevens, Souter, Thomas, and Ginsburg.
Because autopsy reports could be considered public records prepared pursuant to the medical examiner’s duties, MCL 52.202(1) and 52.207, they could be admitted into evidence pursuant to the hearsay exception for public records, MRE 803(8). In People v Rode,
We recognize that, in our prior opinion, we reviewed defendant’s Confrontation Clause claim as an unpreserved constitutional error. However, because our Supreme Court vacated that part of the opinion, we are not hound by that standard of review. See Black’s Law Dictionary (7th ed), p 1546 (stating that the meaning of “vacate” is “[t]o nullify or cancel; make void; invalidate”). We further observe that, in Bryant,
Concurrence Opinion
(concurring). I concur in the result reached by the majority. I write separately to address the majority’s conclusion that defendant’s failure to object, on Confrontation Clause grounds, to the testimony of Dr. Michael Evans, founder, president, chief executive officer, and director of operations at AIT
“Due process requires fundamental fairness, which is determined in a particular situation first by ‘considering any relevant precedents and then by assessing the several interests that are at stake.’ ” In re Brock,
The majority first concludes that under Melendez-Diaz v Massachusetts,
I respectfully disagree that fundamental fairness requires imposition of the legal fiction proposed by the majority.
First, although defendant certainly has an interest in confronting the incriminating statements against her, there is little probative value to defendant in treating the Confrontation Clause objection as preserved, even though it actually was not, because there was more than sufficient other evidence, to which no credible challenge has been made, in support of the trial court’s finding that defendant was guilty of second-degree murder, MCL 750.317, beyond a reasonable doubt. In other words, treating the admission of the statements as something other than plain error, as we did in our previous opinion,
Second, the interests of the people of the state of Michigan
I join the majority in affirming, but I would leave to another day the question regarding under what circumstances fundamental fairness requires the retroactive application of Melendez-Diaz v Massachusetts. I respectfully submit that this is not that case.
In this regard, Dr. Evans was more than a mere toxicologist at AIT.
People v Dendel (On Remand), unpublished opinion per curiam of the Court of Appeals, issued September 11, 2008 (Docket No. 247391).
These interests are not expressly acknowledged by the majority in its fundamental-fairness analysis.
The Supreme Court has observed:
“It is the duty of the public prosecutor to see that the person charged with crime receives a fair trial, so far as it is in his power to afford him one, and it is likewise his duty to use his best endeavor to convict persons guilty of crime; and in the discharge of this duty an active zeal is commendable, yet his methods to procure conviction must be such as accord with the fair and impartial administration of justice . ...” [People v Bahoda,448 Mich 261 , 266 n 6;531 NW2d 659 (1995), quoting People v Dane,59 Mich 550 , 552;26 NW 781 (1886).]