Petition for Writ of Certiorari — Bennie Adams, Petitioner v. Ohio

No. ______

In the Supreme Court of the United States

________

BENNIE ADAMS,

Petitioner,

v.

STATE OF OHIO

Respondent.

________

ON PETITION FOR WRIT OF CERTIORARI TO

THE OHIO SUPREME COURT

________

PETITION FOR WRIT OF CERTIORARI

OFFICE OF THE OHIO PUBLIC DEFENDER

Kimberly Rigby [0078245]

Supervising Attorney

Death Penalty Dept.

Counsel of Record

Kimberlyn Seccuro [0099232]

Assistant State Public Defender

Death Penalty Dept.

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

Ph: (614) 466-5394

Fax: (614) 644-0708

Kimberly.Rigby@opd.ohio.gov

Kimberlyn.Seccuro@opd.ohio.gov

Counsel for Bennie Adams

QUESTION PRESENTED

Is an autopsy report testimonial evidence that demands

confrontation under Crawford v. Washington, 541 U.S. 36 (2004),

and the Sixth Amendment to the United States Constitution?

LIST OF PARTIES

Petitioner, Bennie Adams, an Ohio inmate housed at Trumbull Correctional

Institution, was the appellant in the Ohio Supreme Court.

Respondent, the State of Ohio, was the appellee in the Ohio Supreme Court.

ii

RELATED PROCEEDINGS

All proceedings directly related to this petition include:

1. Ohio Supreme Court Direct Appeal Opinion: State v. Adams, 144

Ohio St.3d 429, No. 2015-Ohio-3954.

2. Trial Court Post-Conviction Opinion: State v. Adams, Case No. 2007

CR 01261.

3. Court of Appeals Post-Conviction Opinion: State v. Adams, 7th Dist.

2018 MA 00116, 2019-Ohio-4090.

4. Ohio Supreme Court Denial of Jurisdiction of Post-Conviction: State

v. Adams, Entry, Ohio Supreme Court Case No. 2019-1570.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................................................................... i

LIST OF PARTIES ...................................................................................................... ii

RELATED PROCEEDINGS ..................................................................................... iii

TABLE OF CONTENTS............................................................................................. iv

TABLE OF AUTHORITIES ....................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ........................................................... 1

OPINIONS BELOW..................................................................................................... 1

JURISDICTIONAL STATEMENT ............................................................................ 1

CONSTITUTIONAL PROVISIONS .......................................................................... 2

STATEMENT OF THE CASE .................................................................................... 2

REASON FOR GRANTING THE WRIT .................................................................. 4

THE STATE’S USE OF AN AUTOPSY REPORT AS EVIDENCE AT TRIAL

AGAINST A CRIMINAL DEFENDANT IS TESTIMONIAL EVIDENCE AND

DEMANDS CONFRONTATION UNDER CRAWFORD V. WASHINGTON, 541

U.S. 36 (2004) AND THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION. .....................................................................................................................4

CONCLUSION ........................................................................................................... 15

APPENDIX:

Appendix A: State of Ohio v. Bennie Adams, Case No. 2019-1570, Ohio Supreme

Court, Entry Denying Jurisdiction (January 21, 2020) ................... A-1

Appendix B: State of Ohio v. Bennie Adams, Case No. 18 MA 0116,

Seventh District Court of Appeals, 2019-Ohio-4090

(September 30, 2019) .......................................................................... A-2

Appendix C: State of Ohio v. Bennie Adams, Case No. 2007 CR 1261,

Mahoning County Common Pleas Court, Journal Entry

(September 25, 2018) ....................................................................... A-20

iv

TABLE OF AUTHORITIES

CASES

Ackerman v. State, 51 N.E.3d 171 (Ind. 2016) ....................................................... 9

Bullcoming v. New Mexico, 564 U.S. 647 (2011) .......................................... passim

Calloway v. State, 210 So.3d 1160 (Fla. 2017) ....................................................... 9

Com. v. Brown, 139 A.3d 208 (Pa. 2016) ................................................................ 9

Commonwealth v. Avila, 912 N.E.2d 1014 (Mass. 2009) ....................................... 9

Conley v. Commonwealth, 2019 WL 3368648 (Ky. 2019) ...................................... 9

Crawford v. Washington, 541 U.S. 36 (2004) ............................................... passim

Ex Parte Jefferson, 283 So.3d 769 (Ala. 2019) ........................................................ 9

Flowers v. State, 456 P.3d 1037 (Nev. 2020) .......................................................... 8

Gossett v. State, 92-KA-00413-SCT (Miss. 1995) ................................................... 9

Mattox v. United States, 156 U.S. 237 (1895)......................................................... 4

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) ................................ passim

Naji v. State, 797 S.E.2d 916 (Ga. 2017) ................................................................ 9

People v. Dungo, 286 P.3d 442 (Cal. 2012) ............................................................. 9

People v. Freycinent, 11 N.Y.3d 38 (N.Y. 2008) ...................................................... 9

People v. King, 2010 WL 98693 (Mich. 2010) ......................................................... 9

People v. Leach, 2012 IL 111534 ............................................................................. 9

Sauerwin v. State, 363 Ark. 324, 214 S.W.3d 266 (Ark. 2005) .............................. 9

State v. Adams, 2015-Ohio-3954 (2015) ................................................................. 3

State v. Bass, 224 N.J. 285 (2016) ...................................................................... 8, 9

State v. Benson, 2015 WL 3539995 (Del. 2015) ...................................................... 9

State v. Campbell, 180 A.3d 882 (Conn. 2018) ....................................................... 8

State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571 ....................................... 9, 10

State v. Davis, 158 P.3d 317 (Kan. 2006) ............................................................... 9

State v. Hutchison, 482 S.W.3d 893 (Tenn. 2016) .................................................. 9

State v. Joseph, 283 P.3d 27 (Ariz. 2012) ............................................................... 9

State v. Kennedy, 735 S.E.2d 905 (W. Va. 2010) .................................................... 9

State v. Lackey, 120 P.3d 332 (Kan. 2005) ............................................................. 9

State v. Locklear, 681 S.E.2d 293 (N.C. 2009) ............................................ 9, 14, 15

v

State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019 ................................... 10, 11

State v. Mercier, 2014 ME 28, 87 A.3d 700 ............................................................ 9

State v. Smith, 898 So. 2d 907 (Ala. Crim. App. 2004) ........................................ 13

State v. Stanfield, 347 P.3d 175 (Idaho 2015) ...................................................... 14

United States v. Gonzalez-Lopez, 548 U.S 140 (2006)............................................ 7

Williams v. Illinois, 567 U.S. 50 (2012) ........................................................ 7, 8, 10

Wood v. State, 299 S.W.3d 200 (Tex. App. 2009).................................................... 9

Zink v. State, 278 S.W.3d 170 (Mo. 2009) .............................................................. 9

STATUTES

28 U.S.C. § 1257 ...................................................................................................... 1

Ohio Const., art. I, § 10 ......................................................................................... 15

Ohio Const., art. I, § 16 ......................................................................................... 15

Ohio Const., art. I, § 2 ........................................................................................... 15

Ohio Const., art. I, § 5 ........................................................................................... 15

Ohio Const., art. I, § 9 ........................................................................................... 15

U.S. Const. amend VI .................................................................................... passim

U.S. Const. amend XIV ..................................................................................... 2, 15

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Bennie Adams respectfully petitions for a writ of certiorari to review

the judgment of the Ohio Supreme Court.

OPINIONS BELOW

The Journal Entry of the Supreme Court of Ohio, State of Ohio v. Bennie

Adams, Ohio Supreme Court Case No. 2019-1570 (jurisdiction denied on January 21,

2020), is attached hereto at Appendix A-1. The decision of Ohio’s Seventh District

Court of Appeals is available at State of Ohio v. Bennie Adams, Case No. 18 MA 0116,

Seventh District Court of Appeals, 2019-Ohio-4090 (September 30, 2019) , and is

attached hereto at Appendix A-2. The Mahoning County Court of Common Pleas

Journal Entry, State of Ohio v. Bennie Adams, Case No. 2007 CR 1261, Mahoning

County Common Pleas Court, Journal Entry, Filed September 25, 2018, is attached

hereto at Appendix A-20.

JURISDICTIONAL STATEMENT

The Seventh District Court of Appeals issued its opinion on the merits on

September 30, 2019. See App. A-2. Adams filed a Memorandum in Support of

Jurisdiction with the Ohio Supreme Court, which denied jurisdiction without opinion

on January 21, 2020. See App. A-1. This Court has jurisdiction under 28 U.S.C. §

1257(a).

CONSTITUTIONAL PROVISIONS

This case involves the following Amendments to the United States

Constitution:

A. Sixth Amendment, which provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor…

B. Fourteenth Amendment, which provides in pertinent part:

No State shall…deprive any person of life, liberty, or property,

without due process of law….

STATEMENT OF THE CASE

On December 29, 1985, a runner discovered Gina Tenney’s body in the

Mahoning River, in Mahoning County, Ohio. Tr.1 184, 188. Tenney had seemingly

been strangled and put in the river sometime in the preceding hours. For 22-years,

the State was unable to indict anyone for the aggravated murder of Tenney. See

generally Grand Jury Testimony 02/21/1986. In 2007, the State finally indicted

Bennie Adams for the aggravated murder of Tenney when Adams’ DNA was found to

be consistent with the DNA found in Tenney’s underwear. Tr. 235, 587; 7/18/08

pretrial, Tr. 167.

1 The trial transcript shall be hereinafter cited as “Tr. __.”

2

During pre-trial conferences, the trial court ruled that Dr. Germaniuk, a

pathologist unconnected to the autopsy, would be allowed to testify to the findings

and conclusions in the autopsy report. 9/19/08 pretrial, Tr. 118. The State contacted

Dr. Rona, who had actually performed the autopsy. Dr Rona was alive and living

nearby, but the State still chose not to call him. 8/13/08 pretrial, Tr. 12; 9/5/08

pretrial, Tr. 23.

The trial began on October 6, 2008. The jury found Adams guilty of aggravated

murder and accompanying capital specifications. After a mitigation hearing, the jury

recommended a sentence of death. The trial court adopted that recommendation and

sentenced Adams to death.

On direct appeal, the Ohio Supreme Court found that “based on the evidence

presented at trial, we hold that there was not sufficient evidence to establish that

Adams committed aggravated burglary. . . .” State v. Adams, 2015-Ohio-3954, ¶¶ 280,

300 (2015). A finding by the jury that Adams committed aggravated burglary was

necessary to sentence Adams to death, so, as a result, Adams was resentenced by the

trial court on June 6, 2016 to a prison term of twenty years to life. The trial court’s

re-sentencing of Adams rendered moot Adams’ timely filed post-conviction petition.

Following his resentencing, Adams timely re-filed his post-conviction petition

on June 5, 2017. The trial court denied Adams’ post-conviction petition on September

25, 2018. See State of Ohio v. Bennie Adams, Case No. 2007 CR 1261, Mahoning

County Common Pleas Court, Journal Entry (Sept. 25, 2018) [hereinafter 9/25/18 JE].

Appendix at A-20. Adams filed a timely notice of appeal in the Court of Appeals on

3

October 25, 2018. After full briefing, on September 30, 2019, the Court of Appeals

filed its Opinion and Judgment Entry affirming the decision of the trial court. State

of Ohio v. Bennie Adams, Case No. 18 MA 0116, Seventh District Court of Appeals,

2019-Ohio-4090 (September 30, 2019) [hereinafter 9/30/19 CoA Op.]. Appendix at A2. The Ohio Supreme Court declined to accept jurisdiction. State of Ohio v. Bennie

Adams, Ohio Supreme Court Case No. 2019-1570 (jurisdiction denied on January 21,

2020). Appendix at A-1.

REASON FOR GRANTING THE WRIT

The State’s use of an autopsy report as evidence at trial against

a criminal defendant is testimonial evidence and demands

confrontation under Crawford v. Washington, 541 U.S. 36 (2004)

and the Sixth Amendment to the United States Constitution.

A. Introduction.

For over 100 years, this Court has protected criminal defendants’ Sixth

Amendment Constitutional Right to confront the witnesses against them. Mattox v.

United States, 156 U.S. 237, 244 (1895). The Confrontation Clause guarantees that

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. amend. VI. “Where testimonial

statements are at issue, the only indicium of reliability sufficient to satisfy

constitutional

demands

is

the

one

the

Constitution

actually

prescribes:

confrontation.” Crawford v. Washington, 541 U.S. 36, 68-69 (2004).

In this case, without first demanding that the State prove unavailability of the

witness and without first allowing Adams his constitutional right to confront the

4

author of the autopsy report, the trial court allowed the State to admit the autopsy

report of the victim as substantive evidence against Petitioner Adams during his

trial. Admission of this autopsy report violated Adams’ right to confront the witnesses

against him. States are split on how to apply this Court’s precedent in Crawford and

its progeny to autopsy reports. This Court should grant the writ to make it clear to

all courts that autopsy reports are testimonial evidence, and thus, criminal

defendants are owed their Sixth Amendment Right to confront the author of the

autopsy report before the autopsy report is allowed to be admitted as substantive

evidence against them at trial.

B. This Court’s governing precedent.

This Court’s decision in Crawford illustrates that testimonial evidence is

subject to the Confrontation Clause unless the witness is unavailable, and the

defendant had a prior opportunity to cross examine that witness. Id. at 54. In

Crawford, this Court described a class of what qualifies as testimonial evidence; this

includes affidavits and “statements made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for use

at a later trial,” as well as other types of evidence. Id. at 51-52. Following Crawford,

this Court reviewed several cases to determine if various types of evidence are

considered testimonial for purposes of the Confrontation Clause. See Melendez-Diaz

v. Massachusetts, 557 U.S. 305 (2009); see also Bullcoming v. New Mexico, 564 U.S.

647 (2011).

5

Melendez-Diaz challenged whether “certificates of analysis” were considered

testimonial evidence. 557 U.S. at 307. This Court ruled that certificates of analysis

were, in fact, testimonial evidence for the purposes of the Confrontation Clause

because they were a “‘solemn declaration or affirmation made for the purpose of

establishing or proving some fact.’” Melendez-Diaz, 577 U.S. at 310, citing Crawford,

541 U.S. at 51. Bullcoming added to the analysis in Melendez-Diaz by holding that a

blood-alcohol report is also testimonial evidence and demands confrontation in a

driving while intoxicated case. 564 U.S. at 663.

This Court indicated, through these two cases, that a document used as

evidence, even if not explicitly an affidavit, is testimonial evidence triggering a

defendant’s right to confront the author when the document is “‘made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.’” Melendez-Diaz, 577 U.S. at 311

citing Crawford, 541 U.S. at 52. The autopsy report qualifies as such a document.

The analysis in Bullcoming is instructive. At trial, the State of New Mexico

offered the “certificate of analysis” of Bullcoming’s blood as a business record but did

not call the analyst who actually conducted the testing. Instead, the State called a

substitute witness with similar qualifications. Bullcoming asserted a Confrontation

Clause challenge. The trial court denied the Confrontation Clause challenge and the

lower courts all affirmed. This Court granted certiorari.

In resolving Bullcoming’s Confrontation Clause challenge, this Court drew an

analogy between the Confrontation Clause and another Sixth Amendment right—the

6

right to counsel. In United States v. Gonzalez-Lopez, 548 U.S 140 (2006), this Court

had rejected the Government’s argument that illegitimately denying a defendant his

right to counsel of choice did not violate the Sixth Amendment where “substitute

counsel’s performance did not demonstrably prejudice the defendant. Bullcoming,

564 U.S. at 662-663, citing and quoting Gonzalez-Lopez, 548 U.S. at 146. In rejecting

the Government’s argument in Gonzalez-Lopez, this Court noted, “If a ‘particular

guarantee’ of the Sixth Amendment is violated, no substitute procedure can cure the

violation, and ‘[n]o additional showing of prejudice is required to make the violation

‘complete.’” Gonzalez-Lopez, 548 U.S. at 146 (emphasis added). This Court then

applied that principle to the Confrontation Clause challenge Bullcoming asserted,

and had no trouble finding a Sixth Amendment violation. “If representation by

substitute counsel does not satisfy the Sixth Amendment, neither does the

opportunity to confront a substitute witness.” Bullcoming, 564 U.S. at 663. But that

is exactly what happened to Bennie Adams. The trial court allowed the state to forego

calling the pathologist who actually conducted the autopsy (and who was available to

testify) and instead called a different pathologist as a substitute witness to testify to

the findings and conclusions in the autopsy report. This violated the Confrontation

Clause.

In Williams v. Illinois, 567 U.S. 50, 56 (2012), a plurality of this Court held

that “[o]ut-of-court statements that are related by the expert solely for the purpose of

explaining the assumptions on which the opinions rest [and] are not offered for their

truth [] thus fall outside the scope of the Confrontation Clause.” Williams v. Illinois,

7

567 U.S. 50, 56 (2012). The substitute pathologist in Adams’ case did more than

merely explain the scientific assumptions that supported a particular scientific

procedure used during the autopsy. Dr. Germaniuk testified to the findings and

conclusions of the autopsy report itself. Thus, Williams does not apply. 567 U.S. at

57-58.

C. State courts are split regarding their decisions as to whether

autopsies are testimonial evidence.

Following this Court’s decisions in Crawford, Melendez-Diaz, and Bullcoming,

state courts across the country have struggled to determine whether autopsy reports

are testimonial and subject to confrontation. Half of the states have not considered,

or at least the highest court of the state has not finally ruled, on the issue. Within

those states that have not ruled on the issue, at least three expressed reluctance to

rule because of the unsettled state of the law. See Flowers v. State, 456 P.3d 1037,

1046 (Nev. 2020) (“This court has not decided ‘whether autopsy reports constitute

“testimonial evidence” as so to trigger the protections of the Confrontation Clause’…

The unsettled state of the law prevents us from saying the error…was ‘plain.’”); State

v. Campbell, 180 A.3d 882, 926 (Conn. 2018); see also, State v. Bass, 224 N.J. 285, 312

(2016) (Although the Supreme Court of New Jersey did eventually rule that autopsy

reports are testimonial, that court also recognized that the trilogy of opinions issued

by this Court between 2009-2012 regarding Crawford has “left the law in this

important area in an uncertain state.”) .

Of the 25 states that have ruled on this issue, a split in opinions is evident. In

16 states, the highest court has determined whether an autopsy is testimonial

8

evidence: 5 states have ruled that autopsy reports are testimonial evidence, while 11

states, including Ohio, have ruled that autopsy reports are not testimonial.2 In the

remaining 9 states, the highest court rulings do not clearly establish whether an

autopsy is testimonial or not.3

The above cited cases show a strong split amongst jurisdictions as to how they

treat autopsy reports within this Court’s Confrontation Clause jurisprudence. This

split further demonstrates that states are, indeed, confused as to how to apply

Crawford and its progeny to autopsy reports that are admitted as evidence at

criminal trials.

2 Testimonial States: Mississippi, New Jersey, North Carolina, Pennsylvania, and West Virginia.

Gossett v. State, 92-KA-00413-SCT (Miss. 1995); State v. Bass, 224 N.J. 285, 317 (2016); State v.

Locklear, 681 S.E.2d 293, 304-05 (N.C. 2009); Com. v. Brown, 139 A.3d 208 (Pa. 2016); State v.

Kennedy, 735 S.E.2d 905 (W. Va. 2010). Non-Testimonial States: Arizona, Arkansas, California,

Illinois, Indiana, Kansas, Kentucky, Maine, New York, Ohio, and Tennessee. See State v. Joseph, 283

P.3d 27 (Ariz. 2012); Sauerwin v. State, 363 Ark. 324, 214 S.W.3d 266 (Ark. 2005); People v. Dungo,

286 P.3d 442 (Cal. 2012); People v. Leach, 2012 IL 111534; Ackerman v. State, 51 N.E.3d 171 (Ind.

2016); State v. Lackey, 120 P.3d 332 (Kan. 2005) (overruled on other grounds by State v. Davis, 158

P.3d 317 (Kan. 2006)); Conley v. Commonwealth, 2019 WL 3368648 (Ky. 2019); State v. Mercier, 2014

ME 28, 87 A.3d 700; People v. Freycinent, 11 N.Y.3d 38, 42 (N.Y. 2008); State v. Craig, 110 Ohio St.3d

306, 2006-Ohio-4571, 853 N.E.2d 621; State v. Hutchison, 482 S.W.3d 893 (Tenn. 2016).

3 Alabama, Delaware, Florida, Georgia, Massachusetts, Michigan, Missouri, New Mexico, and Texas.

See Ex Parte Jefferson, 283 So.3d 769 (Ala. 2019) (holding that whether an autopsy report is

testimonial depends on the contents and information contained within the autopsy); State v. Benson,

2015 WL 3539995 (Del. 2015) (holding that the Defendant’s Motion in Limine was denied to limit the

admission of testimony for a substitute pathologist but made no explicit holding that autopsies are

testimonial evidence.); Calloway v. State, 210 So.3d 1160 (Fla. 2017) (holding that admission of a

substitute medical examiner was permissible. The medical examiner who authored the autopsy had

left the area due to issues between the medical examiner and the prosecutor who was prosecuting the

case at hand and, the autopsy was never admitted through the testimony of the substitute examiner.);

Naji v. State, 797 S.E.2d 916 (Ga. 2017) (holding that the author of the autopsy report was

unavailable.); Commonwealth v. Avila, 912 N.E.2d 1014 (Mass. 2009) (holding that the autopsy report

itself was not admissible, therefore a substitute medical examiner could testify.); People v. King, 2010

WL 98693 (Mich. 2010) (holding that autopsy reports, exclusive of their “opinions and conclusions” can

be used at trial without opportunity to cross-examine the medical examiner. A substitute pathologist

may testify based on observations embodied in the report.); Zink v. State, 278 S.W.3d 170 (Mo. 2009)

(The Supreme Court of Missouri has not ruled but seems to affirm in opinion with Zink.) Wood v. State,

299 S.W.3d 200, 215-16 (Tex. App. 2009) (holding that an autopsy report is testimonial and subject to

confrontation, however, a denial of the right to confront the author is subject to harmless error review

and does not warrant reversal.).

9

D. The Ohio Supreme Court’s interpretation

Confrontation Clause jurisprudence is flawed.

of

this

Court’s

As detailed above, Ohio is one of eleven states that has ruled that autopsy

reports are non-testimonial. In State v. Maxwell, the Ohio Supreme Court relied on

its previous precedent as well as this Court’s decision in Williams v. Illinois to deny

relief in that case. See State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019 ¶¶ 52-54,

discussing Williams v. Illinois, 567 U.S. 50 (2012). However, the Ohio Supreme

Court’s decision in Maxwell runs contrary to this Court’s jurisprudence in MelendezDiaz and Bullcoming.

In Maxwell, the Ohio Supreme Court held that despite this Court’s recent

opinions in Melendez-Diaz and Bullcoming, the court did not need to depart from its

previous decision in State v. Craig which held that “an autopsy report was a

nontestimonial business record,” and was thus not subject to the Confrontation

Clause. Maxwell, 139 Ohio St.3d at ¶ 54, citing State v. Craig, 110 Ohio St.3d 306,

2006-Ohio-4571, ¶¶ 81-88. The Ohio Supreme Court then analyzed this Court’s

Williams decision and the primary purpose test and further concluded that an

autopsy is non-testimonial because the “primary purpose” of autopsies was not “a

prosecutorial purpose.” Maxwell, 139 Ohio St.3d at ¶¶ 55, 59.

The Ohio Supreme Court missed the rationale of the holdings in Melendez-Diaz

and Bullcoming, which both clearly illustrate that a document used as evidence, even

if not explicitly an affidavit, is testimonial evidence triggering a right to confront the

author when the document is “‘made under circumstance which would lead an

objective witness reasonably to believe that the statement would be available for use

10

at a later trial.’” See Melendez-Diaz, 557 U.S. at 311 citing Crawford, 541 U.S. at 52;

see also Bullcoming, 564 U.S. 663-64. Furthermore, the primary purpose of autopsies

is, in fact, often for future prosecution—particularly when the result of the autopsy

is a finding of homicide.

Moreover, this Court, in Melendez-Diaz, hinted that autopsy reports may be

testimonial when it stated: “some forensic analyses, such as autopsies…cannot be

repeated.” Melendez-Diaz, 557 U.S. at 318, n. 5. The Ohio Supreme Court made the

same observation in Maxwell: “unlike other forensic tests, a second autopsy may not

be possible due to cremation of the victim’s body or other loss of evidence with passage

of time.” Maxwell, 139 Ohio St.3d at ¶ 61. Nonetheless, the Ohio Supreme Court still

found that an autopsy report is not testimonial evidence. Id. at ¶ 63.

E. Adams was denied his constitutional right to confront the author of

the autopsy report used against him when that witness was available

to testify.

The trial court ruled that Adam’s First Ground for Relief in his Petition for

Post-conviction Relief was barred by res judicata. 9/25/18 JE at A-32. This was

unreasonable because Adams supported his claim with credible outside the record

evidence. This included evidence that demonstrated Dr. Rona’s availability as well as

a report by Dr. Riddick, an expert forensic pathologist. See Exhibits. 1, 2 to postconviction petition. The trial court alternately found that Adams did not warrant

relief on the merits due to the Ohio Supreme Court’s precedent, as explained above.

See, supra, Section D. The Court of Appeals affirmed the trial court’s decision on both

grounds. 9/30/19 CoA Op. A-17-18. With these decisions, the Ohio state courts

11

violated Adams’ constitutional right to confront the witnesses used against him. See

Melendez-Diaz, 557 U.S. at 310; Bullcoming, 564 U.S. at 652.

On December 31, 1985, Dr. Rona performed the victim’s autopsy. State’s Ex.

63; Tr. 440; see also Exs. 1, 2. The State contacted Dr. Rona prior to trial, and Dr.

Rona was alive and readily available. See 8/13/08 pretrial, Tr. 12; 9/5/08 pretrial, Tr.

23; Ex. 2. Yet, instead of calling the doctor who did the autopsy, the State chose to

have Dr. Germaniuk, an adjoining county’s elected coroner, testify as to the autopsy

report and the cause of death. The State’s reasoning appears to be two-fold: (1) the

Mahoning County Corner, Dr. Belinky, had passed away in the interim and (2) Dr.

Rona, the one who actually performed the autopsy, had no memory of the autopsy, so

he could be of no use. Id. The State’s reasoning, however, was flawed and was not the

standard to be employed. Although Dr. Rona had no immediate independent memory

of conducting the autopsy, he, not Dr. Belinky, was the one who, in fact, conducted

the autopsy in this case. Absent Dr. Rona’s unavailability and a previous opportunity

to cross-examine Dr. Rona regarding this autopsy and his techniques utilized, the

State could not fulfill Adams’ constitutional right to confrontation. See Crawford, 541

U.S. at 68-69; Bullcoming, 564 U.S. at 652. Furthermore, had the State actually

called Dr. Rona to the stand and shown him the report that he authored and/or the

video taken of the autopsy that he conducted, this may have refreshed his recollection

of the autopsy.

Like the reports at issue in Melendez-Diaz and Bullcoming, the autopsy report

here was not prepared as a routine business record; rather it was prepared for use at

12

trial, was a certified record, and was admitted for the truth of the matter asserted.

As this Court has stated, a report, even if not an affidavit, demands confrontation

when it was “‘made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later trial.’”

Melendez-Diaz, 557 U.S. at 311 citing Crawford, 541 U.S. at 52. Here, Dr. Rona

performed the autopsy and indicated that the cause of death was “suffocation

(sudden) due to Traumatic Asphyxiation (sudden)” and the death was by reason of

“homicide.” See State’s Ex. 63 at 14. Realizing immediately that this was a homicide

case, any reasonable person would have known that the autopsy would be used at a

later trial to convict a person for murder. The facts of this case are further troubling.

Adams was already a suspect and in custody at the time of the autopsy, so there was

additional reason to believe that someone, i.e., Adams, would be prosecuted for this

homicide.

Thus, confrontation was the best way to challenge or verify the autopsy results.

Melendez Diaz, 557 U.S. at 317-18, fn.5. “[S]urrogate testimony … does not meet the

constitutional requirement.” Bullcoming, 564 U.S. at 652. Especially in a case like

this—where the death penalty was initially sought and obtained—the trial court

must protect a criminal defendant’s opportunity to confront the conclusions contained

in the autopsy report. Absent that protection, “it could be conceivable that the State

could prove some offenses without the necessity of calling any witnesses at all;” that

is constitutionally unacceptable. State v. Smith, 898 So. 2d 907, 917 (Ala. Crim. App.

2004).

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In addition, this error is not harmless in this case—absent the admission into

evidence of the autopsy report, it would have been practically impossible for the State

to prove that Adams killed Tenney. As pointed out in post-conviction by Dr. Riddick,

the cause and timing of the death were not certain. Adams’ guilt was not predetermined, the evidence was tenuous and circumstantial, and there were strong

alternate suspects. The unconstitutional admission of the autopsy report as evidence

against Adams is what made the difference here.

F. The Court should conclusively find that autopsy reports are

testimonial.

As explained above, state courts—including Ohio’s state courts—need

guidance in this area of law. This Court should grant the writ in this case to

conclusively rule that autopsy reports are testimonial, and that these reports do, in

fact, demand confrontation under the Sixth Amendment to the United States

Constitution. Melendez-Diaz, 557 U.S. at 318, n. 5.

Of the states that have held that autopsy reports are testimonial and demand

confrontation, many have already utilized this Court’s holding and footnote to come

to that conclusion. The Idaho Supreme Court held: “The overriding principle that we

glean from Melendez-Diaz and Bullcoming is that introduction of reports by nontestifying analysts violates the defendant’s right of confrontation when they are ‘for

the purposes of establishing or proving some fact at trial.’” State v. Stanfield, 347 P.3d

175, 183 (Idaho 2015) (internal citations omitted)). In State v. Locklear, the North

Carolina Supreme Court declined to adopt the State’s argument that an autopsy

report was not testimonial evidence because, “the United States Supreme Court

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squarely rejected this argument in the recent case of Melendez-Diaz.” 681 S.E.2d 293,

304 (N.C. 2009) citing Melendez-Diaz, 557 U.S. at 318, n. 5. Further that court held,

“The [United States Supreme] Court specifically referenced autopsy examinations as

one such kind of forensic analyses” that is testimonial evidence to which the

Confrontation Clause applies. Locklear, 681 S.E.2d at 305, citing Melendez-Diaz 557

U.S. at 318, n. 5.

The Locklear Court’s reasoning—and the ultimate holding that autopsy

reports are testimonial evidence—makes sense in light of this Court’s line of

jurisprudence since Crawford. Because autopsy reports cannot be repeated, are

prepared for use at trial (at least when the finding is probable homicide), are certified

records, and are admitted for the truth of the matter asserted (that the victim was

murdered and by what means), this Court should overturn the Ohio Supreme Court’s

decision on this issue, and declare that autopsy reports are testimonial for Sixth

Amendment purposes and thus trigger a Confrontation Clause right.

CONCLUSION

For all the aforementioned reasons, Adams was denied his rights to a fair trial

and to due process as guaranteed by the Sixth and Fourteenth Amendments to the

U.S. Constitution and Article I, Sections 2, 5, 9, 10, and 16 of the Ohio Constitution.

The evidence presented supports a conclusion that Adams was denied the right to

confront the witnesses against him. The Court should grant the writ of certiorari,

vacate the conviction, and remand the case to state court for a new trial.

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Respectfully Submitted,

OFFICE OF THE OHIO PUBLIC DEFENDER

/s/ Kimberly Rigby

Kimberly Rigby [0078245]

Supervising Attorney

Death Penalty Dept.

Counsel of Record

Kimberlyn Seccuro [0099232]

Assistant State Public Defender

Death Penalty Dept.

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

Ph: (614) 466-5394

Fax: (614) 644-0708

Kimberly.Rigby@opd.ohio.gov

Kimberlyn.Seccuro@opd.ohio.gov

Counsel for Bennie Adams

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