Autopsy Reports/Evidence are "Testimonial"

State v. Johnson, Court of Appeals (October 2008)

Mr. Johnson killed one person, shot two others. A jury convicted him of intentional second degree murder, one count of attempted first degree intentional murder, and one count of attempted second degree intentional murder.

The Medical Examiner who testified did not perform the autopsy; in fact, it took two other pathologists to get the job done. Defense counsel did not object to this autopsy evidence, but on appeal, appellate counsel argued that this autopsy evidence violated Crawford. On appeal, because there was no objection at trial, the standard of review is plain error.

A couple of years back, the Supreme Court held that a BCA laboratory report that identified a substance as cocaine was “testimonial” and thus not admissible unless the declarant was unavailable at trial and the defendant had a prior opportunity to cross examine the declarant. State v. Caulfield, 722 N.W.2d 304 (Minn. 2006). In another locally notoriously case, the court held that a hospital laboratory report that had been prepared as part of an autopsy report was “testimonial.” State v. Weaver, 733 N.W.2d 793 (Minn.Ct.App. 2007).

The court concludes that autopsy reports/evidence are “testimonial” under Crawford, rejecting decisions from other jurisdictions that have reached the opposite conclusion. Some of these decisions have adopted a business records approach to autopsy reports, and then determined that Crawford does not reach business records. The Minnesota Court rejects this approach; the court views recourse to a business record analysis as a “back door” to the Roberts reliability factor that Crawford clearly rejected.

Accordingly, admission of the medical examiner’s testimony was plain error, but it was not harmless error.

The trial court imposed consecutive sentences on the two counts of attempted murder. The appellate court says that this was a mistake. The only attempt homicide offense on the permissive consecutive list is attempted first degree murder. The omission of second degree attempted murder prevents the trial court from consecutive sentencing. The court remands for concurrent sentencing.

"Bong Water:" The Court Mixes it up.

State v. Peck, 2008 WL 4472867, Minn.App., October 07, 2008.

Police searched Sara Peck’s house, finding a glass bong and a small bag containing methamphetamine. The liquid inside the bong, which weighed a bit over 37 grams, tested positive for methamphetamine. The weight of the bong liquid got the prosecutor’s eyes watering – the bag was basically nothing – and so he charged Sara with first degree possession, which requires 25 grams or more “of a mixture containing methamphetamine.” M.S. § 152.021, S. 2(1). This was too much for the court to swallow; the trial court dismissed the charge and the state appealed.

So, what’s a “mixture”? Easy. It’s a “preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.” Minn.Stat. § 152.01, S. 9a. Does water that has a bit of meth dregs in it amount to a “mixture”? No.

Bong water, it turns out, is like Chai latte; it’s an “infusion.” A “mixture” must have been prepared for the purpose of drug use, sale, or manufacturing. It is not, as the state argued – and here’s where they really went under – like a swimming pool. The state suggested that if Sara had accidently spilled .01 trams of meth into her swimming pool (do you think the AG really thought that Sara had a swimming pool?) she could be prosecuted for possession over 25 grams of a controlled substance so long as the BCA got there in time to assay the water. (In fairness to the state, it’s not entirely clear just who came up with the swimming pool crime.)