Petition for Writ of Certiorari — South Carolina, Petitioner v. Angela D. Brewer

No. ______

In the Supreme Court of the United States

__________________

STATE OF SOUTH CAROLINA,

Petitioner,

v.

ANGELA D. BREWER,

__________________

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of South Carolina

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

ALAN WILSON

South Carolina Attorney General

*WILLIAM M. BLITCH, JR.

Senior Assistant Deputy

Attorney General

Office of the Attorney General

State of South Carolina

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3970

wblitch@scag.gov

*Counsel of Record

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether lab results requested not by law

enforcement but by a forensic pathologist to assist in

making a routine cause of death determination are

testimonial in nature and their admission without

cross-examination of the analyst violates a criminal

defendant’s right to confrontation as articulated in

Crawford v. Washington, 541 U.S. 36, 51 (2004),

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

and Ohio v. Clark, 576 U.S. 237 (2015).

ii

STATEMENT OF RELATED PROCEEDINGS

The State of South Carolina v. Angela Brewer,

Case No. 2014A3910300534 (S.C. Court of General

Sessions) (December 14, 2017).

The State v. Angela D. Brewer, Case No. 2017002563 (S.C. Court of Appeals) (October 26, 2020).

The State v. Angela D. Brewer, Case No. 2020001345 (Supreme Court of South Carolina) (October

12, 2022).

iii

TABLE OF CONTENTS

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

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF CONTENTS ........................................... iii

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

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

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

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

CONSTITUTIONAL PROVISIONS INVOLVED ......1

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

A.

Factual History .................................................2

B.

State Appellate Court Decisions ......................4

C.

Legal Background .............................................5

REASONS FOR GRANTING THE PETITION..........9

A.

Courts from various jurisdictions have

considered statements such as laboratory

reports or autopsy reports using various

methods and come to conflicting conclusions

regarding application of the Confrontation

Clause ................................................................9

iv

B.

Law enforcement’s subjective beliefs and

the ultimate use of the statement during a

criminal trial should not determine if a

toxicology report is testimonial, and this

case presents the opportunity to determine

that laboratory, toxicology, or other reports

prepared in the assistance of determining

cause of death are non-testimonial absent

unique circumstances .....................................12

CONCLUSION ..........................................................16

APPENDIX

Appendix A

Opinion in the Supreme Court

for the State of South Carolina

(October 12, 2022) .................... App. 1

Appendix B

Opinion in the Court of Appeals

for the State of South Carolina

(August 26, 2020) ................... App. 24

v

TABLE OF AUTHORITIES

Cases

Bullcoming v. New Mexico,

564 U.S. 647 (2011) .................................. 7, 9, 14, 15

Crawford v. Washington,

541 U.S. 36 (2004) ............................................ 5, 6, 7

Davis v. Washington,

547 U.S. 813 (2006) .................................................. 6

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ................................ 4, 6, 7, 9, 14

Michigan v. Bryant,

562 U.S. 344 (2011) ........................................ 6, 8, 16

Ohio v. Clark,

576 U.S. 237 (2015) ................................ 8, 12, 13, 16

People v. Leach,

980 N.E.2d 570 (Ill. 2012) ...................................... 11

Pointer v. Texas,

380 U.S. 400 (1965) .................................................. 2

State v. Hutchison,

482 S.W.3d 893 (Tenn. 2016) ................................. 11

United State v. Bass,

80 M.J. 114 (C.A.A.F. 2020)............................. 11, 12

United States v. Ignsiak,

667 F.3d 1217 (11th Cir. 2012) .............................. 10

United States v. James,

712 F.3d 79 (2d Cir. 2013) ............................... 10, 11

vi

Williams v. Illinois,

567 U.S. 50 (2012) .................................... 5, 8, 12, 13

Constitution and Statutes

U.S. CONST. amend VI ........... 1, 2, 4-6, 8-10, 12, 13, 16

28 U.S.C. § 1257(a) ...................................................... 1

S.C. Code Ann. § 17-5-520 (Supp. 2018) ................... 13

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, the State of South Carolina,

respectfully petitions this Court for a writ of certiorari

to review the judgment of the Supreme Court of South

Carolina in this case.

OPINIONS BELOW

The opinion of the Supreme Court of South

Carolina is reported at 882 S.E.2d 156, and it is

reproduced in the appendix hereto at App. 1-23. The

opinion of the South Carolina Court of Appeals is

unpublished but is reproduced at App. 24-42.

JURISDICTIONAL STATEMENT

The opinion of the Supreme Court of South

Carolina was filed on October 12, 2022. The State did

not seek a petition for rehearing and remittitur was

issued November 22, 2022. On December 20, 2022, the

Chief Justice extended the time within which to file a

petition for writ of certiorari to and including March

11, 2023. The jurisdiction of this Court is timely

invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the right of the accused to

confront witnesses against him secured by the Sixth

Amendment of the United States Constitution which

provides:

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

2

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, and to

have the Assistance of Counsel for his

defence.

U.S. CONST. amend VI. The Sixth Amendment is

applicable to South Carolina and the other states

through the Fourteenth Amendment of the United

States Constitution. Pointer v. Texas, 380 U.S. 400,

406 (1965).

STATEMENT OF THE CASE

A.

Factual History

On October 17, 2014, first responders received

a report of a fourteen-month-old infant not breathing.

The infant, blue-gray in appearance, was on the floor

while Respondent’s husband performed CPR when the

first officer arrived. The officer took over performing

CPR until paramedics arrived. The infant was taken

to the hospital where he was pronounced dead. The

infant did not have any visible signs indicating a

possible cause of death. (R.204).

At the hospital, officers began gathering

information and establishing a timeline to the extent

possible. The officers only obtained basic information

including what the child ate and drank. (R.104).

Respondent indicated the child was fussy, whining,

and “might have been coming down with something.”

3

(R.113; 306). Further, officers obtained a list of

medications taken by Respondent.

Law enforcement obtained consent to search

the residence, which was standard protocol after an

unexplained child death. Officers took various items

from the home to assist in determining the cause of

death and conducted a reenactment of the day’s events

with Respondent. At the time, law enforcement “had

no clue what had happened.” (R.106).

The deputy coroner arrived at the hospital after

being notified of the child’s death. There were no

physical signs of abuse, including no brises, cuts, or

other marks on the child. (R.204). Law enforcement at

the hospital noted no “outward trauma” indicating a

possible cause of death. (R.276).

As part of the autopsy on October 18, 2014, to

determine cause of death, a forensic pathologist

extracted blood, tissue, and fluids from the infant and

sent them to National Medical Services Laboratory

(NMS), an out-of-state lab. The pathologist uses NMS

roughly 650 times a year to process samples from

autopsies including autopsies for non-criminal deaths.

(R.391; 413).

On November 6, almost three weeks after the

infant died and the toxicology testing was requested

by the pathologist, a law enforcement officer

interviewed Respondent for the first time since at the

hospital. Respondent was not Mirandized because law

enforcement “had no reason to believe it was a

homicide at that time.” (R.226-227). The intention

behind the interview was to simply try to “get a

timeline and try to figure out the cause of death.”

4

(R.227). At the time of the interview, law enforcement

had not been provided the toxicology or autopsy

results. (R.227). Only after the forensic pathologist

received the toxicology results showing the high level

of oxycodone in the child’s blood, and his subsequent

determination cause of death was acute oxycodone

toxicity, did the case become a homicide by child

abuse. (R.403).

At trial, Respondent’s counsel moved to exclude

any discussion regarding the laboratory results and

any testimony regarding the results by the

pathologist. He maintained under Melendez–Diaz v.

Massachusetts, 557 U.S. 305 (2009), the testimony was

inadmissible. The circuit court allowed the testimony,

finding no violation of the Confrontation Clause. 1

B.

State Appellate Court Decisions

Following the trial, Respondent appealed her

conviction to the South Carolina Court of Appeals.

(App.24-42). On appeal, the Court concluded the

toxicology lab results were not testimonial in nature.

The Court found the results were not issued with the

primary purpose of assisting a criminal investigation.

(App.40).

Subsequent to that decision, Respondent

petitioned the Supreme Court of South Carolina for a

writ of certiorari, and the petition was granted.

1 The State acknowledges the basis the circuit court relied on to

allow the testimony—the ability to cross-examine the pathologist

was sufficient to satisfy the Confrontation Clause—is different

than the argument advanced on appeal before the South Carolina

Court of Appeals and Supreme Court of South Carolina as well

as before this Court.

5

Thereafter, on certiorari, the Supreme Court of South

Carolina examined the evolution of the Confrontation

Clause since this Court’s opinion in Crawford v.

Washington, 541 U.S. 36, 51 (2004). The Supreme

Court of South Carolina noted this Court in Williams

v. Illinois, 567 U.S. 50 (2012), has “muddied the

waters” and that “even two members of the Supreme

Court have acknowledged the lack of clarity in this

area of the law.” (App.17-18). Thereafter, the Supreme

Court of South Carolina found the toxicology report

was testimonial, analogizing it to autopsy reports, and

stating: “[w]hile we must review the primary purpose

of the evidence to ascertain whether it is testimonial,

we cannot ignore the reality that if a criminal

prosecution takes place, the NMS report would be

critical to prove the State’s case.” (App. 20). The

Supreme Court of South Carolina found the admission

of the laboratory report without the forensic analyst

testifying and being subject to cross-examination

violated Respondent’s federal confrontation right.

(App. 22).

C.

Legal Background

The Confrontation Clause “applies to

‘witnesses’ against the accused—in other words, those

who ‘bear testimony.’” Crawford v. Washington, 541

U.S. 36, 51 (2004). Testimony, for purpose of the

Confrontation Clause, means “[a] solemn declaration

or affirmation made for the purpose of establishing or

proving some fact.” Id. “Where nontestimonial

hearsay is at issue, it is wholly consistent with the

Framers’ design to afford the States flexibility in their

development of hearsay law.” Id.

6

As

a

result,

this

Court

“exempted

[nontestimonial] statements from Confrontation

Clause scrutiny altogether.” Id. Only testimonial

statements “cause the declarant to be a ‘witness’

within the meaning of the Confrontation Clause.”

Davis v. Washington, 547 U.S. 813, 821 (2006) (citing

Crawford, 541 U.S. at 51). “It is the testimonial

character of the statement that separates it from other

hearsay that, while subject to traditional limitations

upon hearsay evidence, is not subject to the

Confrontation Clause.” Id.

In Davis, 547 U.S. 813 (2006), this Court

announced the “primary purpose” test for determining

whether an out-of-court statement is testimonial in

nature.

This Court explained statements are

testimonial where their primary purpose “is to

establish or prove past events potentially relevant to

later criminal prosecution.” Id., at 822. In Michigan

v. Bryant, 562 U.S. 344 (2011), this Court found where

an out-of-court statement’s primary purpose is “to

create a record for trial” or “creating an out-of-court

substitute for trial testimony” then the statement is

testimonial and falls within the requirements of

Crawford and the Confrontation Clause.

In 2009, this Court extended the holding of

Crawford beyond testimony and to forensic

“certificates of analysis” in which sworn statements

indicating a substance submitted for testing during a

criminal investigation was found to be cocaine were

admitted in lieu of testimony by an analyst. Melendez–

Diaz v. Massachusetts, 557 U.S. 305 (2009). The

laboratory certificates were “within the ‘core class of

testimonial statements,’” making them inadmissible

7

under the reasoning of Crawford. Melendez–Diaz, 557

U.S. at 310. The majority explained the certificates

were a “solemn declaration or affirmation made for the

purpose of establishing or proving some fact.” Id.

Additionally, this Court articulated the certificates

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 311. Further, this Court noted: “under

Massachusetts law the sole purpose of the affidavits

was to provide ‘prima facie evidence of the

composition, quality, and the net weight’ of the

analyzed substance,” and explained: “We can safely

assume that the analysts were aware of the affidavits’

evidentiary purpose, since that purpose—as stated in

the relevant state-law provision—was reprinted on

the affidavits themselves.” Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 311 (2009).

This Court again examined an analyst’s report

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

that case, a blood alcohol report created as part of a

DWI investigation was challenged as testimonial. In

determining the report was testimonial, this Court

found significant: “Here, as in Melendez–Diaz, a lawenforcement officer provided seized evidence to a state

laboratory required by law to assist in police

investigations.” Bullcoming v. New Mexico, 564 U.S.

647, 664–65 (2011) (citations omitted). The fact the

report was specifically created to assist law

enforcement and had the required level of formality

rendered it testimonial in nature and required the

testimony of the analyst who created the report.

8

In 2012, a DNA forensic report was utilized by

an expert witness to opine a DNA match existed

between the profile and defendant’s DNA. Williams v.

Illinois, 567 U.S. 50 (2012). A plurality of this Court

found the expert witness could testify to the report and

their opinion derived from the report because they

were not testifying to the truth of the matter

asserted—that the DNA profile was the defendant’s.

Instead, they were testifying to the contents of the

report which was then utilized to render their opinion.

Id. at 79. The same plurality also concluded the report

was not testimonial because it was not created for

purpose of trial, but to locate and identify a dangerous

rapist on the loose. Id. at 84-85.

In 2015, this Court clarified the determination

of testimonial versus non-testimonial statements,

albeit related to a verbal statement as opposed to a

laboratory report.

“Our Confrontation Clause

decisions . . . do not determine whether a statement is

testimonial by examining whether a jury would view

the statement as the equivalent of in-court testimony.”

Ohio v. Clark, 576 U.S. 237 (2015). The Court stated:

“We have never suggested . . . that the Confrontation

Clause bars the introduction of all out-of-court

statements that support the prosecution’s case.

Instead, we ask whether a statement was given with

the ‘primary purpose of creating an out-of-court

substitute for trial testimony.’” Id. at 250-251 (citing

Bryant, 562 U.S. at 358).

9

REASONS FOR GRANTING THE PETITION

This Court’s prior Confrontation Clause

decisions related to the admission of various lab

reports have involved reports requested by law

enforcement for use as part of a criminal investigation

or prosecution. The Supreme Court of South

Carolina’s decision finding toxicology results

testimonial in nature directly relied on this Court’s

prior cases of Melendez-Diaz and Bullcoming, but the

Court ignored the underlying circumstances behind

the samples submitted and the report’s use

specifically to assist a pathologist in determining an

infant’s cause of death. Instead, the Supreme Court of

South Carolina focused on law enforcement’s

subjective beliefs and the ultimate use of the report in

a criminal trial. The case sub judice allows this Court

to provide further clarity regarding the admission of

laboratory reports at trial and the Confrontation

Clause analysis necessary to determine whether the

report is testimonial and the analyst that created it

must be subject to cross-examination or whether it is

non-testimonial and only a concern of state and

federal rules of evidence.

A.

Courts from various jurisdictions have

considered statements such as laboratory

reports or autopsy reports using various

methods

and

come

to

conflicting

conclusions regarding application of the

Confrontation Clause.

Autopsy reports, toxicology reports, and similar

reports which have as their primary goal either a

determination of cause of death or providing

10

assistance in determining cause of death are not

universally found to be non-testimonial. The conflict,

as it relates to autopsy reports, was noted by the

Second Circuit Court of Appeals in United States v.

James, 712 F.3d 79 (2d Cir. 2013), when the Court

stated: “It is worth noting that courts throughout the

country have applied various approaches and reached

differing conclusions when considering Confrontation

Clause challenges to the introduction of autopsy

reports.” Id. at 97. Ultimately, the James court found

the reports at issue in that case non-testimonial

because there was no indication a criminal

investigation was contemplated, the report was

completed to assist in determining cause of death, and

its primary purpose was not to generate evidence for

use at a subsequent trial. Id. at 101-102.

Contrast James with United States v. Ignsiak,

667 F.3d 1217 (11th Cir. 2012), in which the Eleventh

Circuit Court of Appeals found autopsy reports were

testimonial. The Court, considering the admission of

testimony of five autopsies indicating causes of death

related to overdose of prescribed substances, found the

testimony’s admission violated the Confrontation

Clause because the examiner who conducted each

autopsy did not testify. The Court concluded the

autopsies were testimonial, primarily as a result of the

close relationship between the medical examiner and

law enforcement. Id. at 1231-1232. Even though the

Court acknowledged many autopsy reports would not

be used at a subsequent trial, the reports were still

made under circumstances which would lead an

objective witness reasonably to believe that the

11

statement would be available for use at a later trial.

Id. at 1232 (internal quotation and citation omitted).

Other courts have found autopsy reports, even

when generated after a suspect is in custody and when

the cause of death is fairly obvious, can be nontestimonial. In People v. Leach, 980 N.E.2d 570 (Ill.

2012), the Illinois Supreme Court found that even

though the medical examiner who performed the

autopsy did not testify, choking was the known cause

of death, and the defendant was a suspect at the time

of the autopsy, the report was still non-testimonial. Id.

at 574-575. The Court concluded, quite the opposite of

the Supreme Court of South Carolina (App. 19), that

the report was created primarily to determine cause of

death and “was not rendered testimonial merely

because the assistant medical examiner performing

the autopsy is aware that police suspect homicide and

that a specific individual might be responsible.” Id. at

593; see also, State v. Hutchison, 482 S.W.3d 893, 914

(Tenn. 2016) (finding autopsy was non-testimonial

even though law enforcement was at the autopsy, law

enforcement brought suspected murder weapons to be

compared to wounds, and defendant was already in

custody because the primary purpose was not to prove

the guilt of a particular criminal defendant at trial).

As it relates to lab reports, a ruling such as the

one in United State v. Bass, 80 M.J. 114 (C.A.A.F.

2020) is directly opposed to the Supreme Court of

South Carolina’s ruling in the underlying case. In

Bass, the Court found a diagnostic test for gonorrhea

was non-testimonial because it was for diagnosis and

not prosecution. The Court in Bass found that even

though the swab was from an infant, which meant it

12

was likely the results could be used in a criminal

prosecution, that did not alter the primary purpose of

the test results or create an “out-of-court substitute for

trial testimony.” Id. at 122 (quoting Clark, 576 U.S. at

245). Compare the Bass ruling to the South Carolina

Supreme Court in the instant case, who found the

toxicology report was testimonial, even though it was

being used to determine cause of death, in part

because the Court could not “ignore the reality that if

a criminal prosecution takes place, the NMS report

would be critical to prove the State’s case.” (App. 20).

This Court should conclude absent special

circumstances toxicology reports, when used as part of

a determination of cause of death, are non-testimonial.

The subjective belief of law enforcement and the

ultimate use of the statement at trial are not relevant

to a determination of the primary purpose behind the

report, and therefore, do not render testimonial an

otherwise non-testimonial statement.

B.

Law enforcement’s subjective beliefs and

the ultimate use of the statement during a

criminal trial should not determine if a

toxicology report is testimonial, and this

case

presents

the

opportunity

to

determine that laboratory, toxicology, or

other reports prepared in the assistance of

determining cause of death are nontestimonial absent unique circumstances.

In his concurrence to Williams, Justice Breyer

asked a pertinent question that he indicated was not

answered by the opinions of either the plurality or the

dissent: “How does the Confrontation Clause apply to

13

the panoply of crime laboratory reports and

underlying technical statements written by (or

otherwise made by) laboratory technicians?” Williams,

567 U.S. at 86. This case enables the Court to provide

guidance in answering Justice Breyer’s question and

allows the Court the opportunity to conclude reports

created in furtherance of a determination of a cause of

death are near universally non-testimonial and should

only implicate the Confrontation Clause in unique

circumstances.

In its opinion below, the Supreme Court of

South Carolina analyzed the testimonial nature of the

toxicology report admitted at trial from the point of

view of law enforcement and its ultimate importance

at trial, instead of determining the primary purpose

behind the creation of the toxicology report which was

to assist a forensic pathologist conducting a

statutorily-mandated autopsy to determine of the

cause of an infant’s death. 2 The toxicology report is

non-testimonial when viewed in light of the primary

purpose for which it was created and not in light of the

use of the testimony at trial. Ohio v. Clark, 576 U.S.

237, 250 (2015) (“Our Confrontation Clause decisions,

however, do not determine whether a statement is

testimonial by examining whether a jury would view

the statement as the equivalent of in-court

testimony. . . . We have never suggested, however,

that the Confrontation Clause bars the introduction of

all out-of-court statements that support the

prosecution’s case.”).

2 See S.C. Code Ann. § 17-5-520 (Supp. 2018).

14

Objectively, the purpose behind the NMS

toxicology report was to assist the forensic pathologist

in determining cause and manner of death for the

minor victim. (R.403-404). He performed the autopsy

on the minor victim on October 18, 2014. At that time,

he extracted the various fluids and sent them to the

lab for testing. The cause of the infant’s death was

entirely unexplained at the time, which no outward

signs of abuse or other causes of death. The

investigation being conducted by the forensic

pathologist was not criminal in nature but was a

scientific one to explain how the infant died. Even

weeks after the autopsy was performed, law

enforcement did not know the cause of death or have

reason to believe it would be homicide by child abuse

resulting in a criminal prosecution.

Importantly, the analyst issuing the report for

NMS would not have any objectively reasonable belief

the results of the toxicology would be used in a

criminal case. The lab was merely providing a

toxicology as part of a routine autopsy as requested

many times by this specific forensic pathologist—as

many as 650 times a year. (R.390; 413). He even noted

he used NMS to make determinations quickly in

insurance policy cases so that a family can resolve any

issues surrounding a death and obtain insurance

proceeds. (R.391). As a result, while the toxicology

report was ultimately used as evidence at a criminal

trial, it was not created with the primary purpose of

substituting for testimony establishing or proving

some fact in a criminal proceeding.

Unlike either Melendez-Diaz or Bullcoming, the

report in this case was not created at the request of

15

law enforcement and was not an analysis of

substances submitted by law enforcement.

The

forensic toxicology report in this case was not

“prepared in connection with a criminal investigation

or prosecution” Bullcoming v. New Mexico, 564 U.S.

647, 658 (2011), but was created at the request of a

forensic pathologist to assist with the determination

of an unexplained infant death.

While in the instant case, law enforcement may

have had their suspicions and conducted part of their

general investigation into the infant’s death in a way

that focused on the only caretaker present at the time

of the death, the forensic pathologist was merely

attempting to ascertain the infant’s cause of death.

The concern is on the primary purpose for which the

report was created. In this case, the primary purpose

was undoubtedly to allow the forensic pathologist to

rule out or include possible causes of death which can

only be determined from toxicological analysis. Law

enforcement played no role in obtaining the samples

or requesting the report, and law enforcement did not

receive a copy of the report from NMS. The subjective

beliefs of law enforcement, which played no role in the

forensic pathologist’s determination of a need for

toxicology testing as part of an autopsy or the results

of the testing, should not be a factor in determining

the testimonial nature of the report.

In addition, the significance of the evidence at

an ultimate criminal trial should not factor into a

determination of the testimonial nature of the

underlying statement. The Supreme Court of South

Carolina found: “While we must review the primary

purpose of the evidence to ascertain whether it is

16

testimonial, we cannot ignore the reality that if a

criminal prosecution takes place, the NMS report

would be critical to prove the State’s case.” (App. 20).

This Court should reiterate “a statement cannot fall

within the Confrontation Clause unless its primary

purpose was testimonial. ‘Where no such primary

purpose exists, the admissibility of a statement is the

concern of state and federal rules of evidence, not the

Confrontation Clause.’” Ohio v. Clark, 576 U.S. 237,

245 (2015) (quoting Michigan v. Bryant, 562 U.S. 344,

359 (2011)). Here, the primary purpose was nontestimonial—to assist a forensic pathologist in making

a cause of death determination—and, therefore, this

Court should conclude it was not a concern of the

Confrontation Clause.

Again, this Court should find toxicology reports,

when used as part of a determination of cause of

death, are non-testimonial absent special or unique

circumstances. The subjective belief of law

enforcement and the ultimate use of the statement at

trial are not relevant to a determination of the

primary purpose behind the report, and therefore, do

not render testimonial an otherwise non-testimonial

statement.

CONCLUSION

For all the foregoing reasons, the petition for

writ of certiorari should be granted.

17

Respectfully submitted,

ALAN WILSON

South Carolina Attorney General

*WILLIAM M. BLITCH, JR.

Senior Assistant Deputy Attorney General

wblitch@scag.gov

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3970

*Counsel of Record

March 10, 2023