Opposition Brief — Manocchio v. Moran

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No. 90-988

In The

Supreme Court of the United States

October Term, 1990

NICHOLAS P. MANOCCHIO,

Petitioner,

vs.

JOHN MORAN, DIRECTOR, DEPARTMENT

OF CORRECTIONS,

Respondent.

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

BRIEF IN OPPOSITION

,™

RESPONDENT, STATE OF

RHODE ISLAND

By Its Attorneys,

James E! O’NEIL

Attorney General of the

State of Rhode Island

ANNIE GOLDBERG*

Assistant Attorney General

Appellate Division

72 Pine Street

Providence, Rhode Island 02903

(401) 274-4400 ext. 289

*Attorney of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

"ER

II.

ITI.

IV.

QUESTIONS PRESENTED

WHETHER UNAVAILABILITY OF A HEARSAY

DECLARANT IS A CONSTITUTIONAL PREREQ-

UISITE TO ADMISSION OF HEARSAY EVIDENCE

OVER A CONFRONTATION CLAUSE EXCEP-

TION.

WHETHER THE STATE WAS UNDER ANY DUTY

TO PRODUCE OR DEPOSE AN ABSENT FOREN-

SIC PATHOLOGIST WHO PERFORMED POST-

MORTEM EXAMINATION AND RECORDED HIS

FINDINGS IN AN AUTOPSY REPORT, BUT DID

NOT EXAMINE THE INTERNAL BRAIN, IN

ORDER TO SATISFY A CONFRONTATION

CLAUSE CHALLENGE TO ADMISSION OF THE

REPORT, WHERE A MORE EXPERIENCED,

HIGHER-RANKED, STATE MEDICAL EXAMINER

WHO PARTICIPATED IN THE CONFERENCE ON

THE FORMALIN-FIXED BRAIN, CONCURRED IN

JOINT CONCLUSIONS ON THE CAUSE OF

DEATH, AND SIGNED THE AUTOPSY REPORT

ALSO, WAS PRESENT AND WOULD HAVE TES-

TIFIED TO THE CAUSE OF DEATH, HAD NOT

ONE OR MORE DEFENDANTS OBJECTED.

WHETHER THE COURT OF APPEALS ERRED IN

CONCLUDING THAT OBSERVATIONS STATED

IN THE AUTOPSY REPORT AS TO THE CONDI-

TION OF THE CORPSE CONTAINED SUFFI-

CIENT PARTICULARIZED GUARANTEES OF

TRUSTWORTHINESS TO SUPPORT THEIR

ADMISSION IN A HOMICIDE PROSECUTION

OVER A CONFRONTATION CLAUSE OBJEC-

TION, WITHOUT THE PRESENCE OF THE

EXAMINER WHO PREPARED THE REPORT.

WHETHER THE COURT OF APPEALS ERRED IN

HOLDING THAT ADMISSION OF THE AUTOPSY

REPORT WITHOUT REDACTING A PORTION

REPEATING INFORMATION CONTAINED IN A

POLICE REPORT, NAMELY, THAT DECEDENT

QUESTIONS PRESENTED-Continued

HAD BEEN BEATEN IN A PARKING LOT

APPROXIMATELY ONE HOUR BEFORE HE DIED,

DID NOT VIOLATE CONFRONTATION-CLAUSE

RIGHTS OF THIS DEFENDANT, NOT LINKED TO

THE BEATING IN THE REPORT, WHO DID NOT

DENY THAT A BEATING OCCURRED BUT

MERELY ARGUED THAT DE.ATH RESULTED

FROM SOME OTHER CAUSE.

WHETHER THE CONSTITUTIONAL RIGHT OF

AN ACCUSED TO CONFRONT ADVERSE EVI-

DENCE WAS ADEQUATELY PRESERVED IN THE

CIRCUMSTANCES OF THIS PARTICULAR TRIAL.

ili

TABLE OF CONTENTS

Page

ee a cays bes bbe eee sce e nde i

a iii

cana ccbewuvbnevess iv

Citation co eee hav eee ev scsasen ve 1

RS RU LS SP ea 1

Constitutional Provisions Involved................. 1

EN EE ee 2

EE cee seb b bh saNveseneeseserenans 5

EERE OE re eer et ee eee 9

I, THE FIRST CIRCUIT CORRECTLY DECIDED

THAT THE NATURE AND PURPOSES OF THE

BUSINESS-RECORDS AND PUBLIC-RECORDS

EXCEPTIONS TO THE HEARSAY RULE MAKE

A SHOWING OF THE UNAVAILABILITY OF

THE DECLARANT CONSTITUTIONALLY

ss Cn CEE Wee SS KACO Ree aera vee 9

II. THE CONCLUSIONS OF THE FIRST CIRCUIT

ARE NOT IN CONFLICT WITH THOSE FEW CIR-

CUITS AND STATES THAT HAVE RECENTLY

ADDRESSED THE NARROW ISSUE............. 12

Conclusion... Che eee ee eee errr er ee Terre 17

TABLE OF AUTHORITIES

UNITED States SUPREME CouRT CAsESj

California v. Green, 399 U.S. 149 (1970) .............. 11

Idaho v. Wright, ___ U.S. __, 110 S.Ct. 3139 (1990) .18, 19

Palmer v. Hoffman, 318 U.S. 109 (1943)............... 17

Ohio v. Roberts, 448 U.S 56 (1980) .............. 4, 9, 15

United States v. Inadi, 475 U.S. 387 (1986)....... 4,9, 10

UNitTeD States Courts or AppeALs CASEs:

Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir.

EE eee eT ee Tere ert TTT ee 15

Mechler v. Procunier, 754 F.2d 1294 (5th Cir. 1985).... 15

Manocchio v. Moran, 919 F.2d 770 (1st Cir. 1990). passim

Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989) ....... 18

Reardon v. Manson, 806 F.2d 39 (2d Cir. 1986)..... 15, 18

Stevens v. Bordenkircher, 746 F.2d 342 (6th Cir. 1984) .... 11

UNiteEp States District Court CASEs:

Manocchio v. Moran, 708 F.Supp. 473 (D.R.I. 1989) ...1, 8

Montogomery v. Fogg, 479 F.Supp 363 (S.D.N.Y.

GE wah 5 06.0 36000s 44 sARSEGASSERCOWNIAS NEES KH ¥0 16

RuHope IsLtaANpD CAsEs:

State v. Manocchio, 497 A.2d 1 (R.I. 1985)...1, 4, 6, 7, 8

TABLE OF AUTHORITIES - Continued

Page

Cases Or OTHER JURISDICTIONS:

Howard v. United States, 473 A.2d 835 (D.C.App.

WONG Aa 5 0D SE HEMEAAN EUS CERRO ae es 14

McLean v. State, 482 A.2d 101 (Del. 1984)............ 13

Moon v. State, 300 Md. 354, 478 A.2d 695 (1984)..... 17

People v. Tenorio, 590 P.2d 952 (Colo. 1979) .......... 14

Robertson v. Comm., 211 Va. 62, 175 S.E.2d (1970).... 13

Salzetti v. Nichols, 744 P.2d 1362 (Utah 1987)......... 13

State v. Cosgrove, 181 Conn. 562, 436 A.2d 33 (1980) .... 18

State v. Damon, 214 Conn. 146, 570 A.2d 700 (1990) .... 18

State v. Mayberry, 411 N.W.2d 677 (Iowa 1987)....... 13

State v. Reddick, 532 N.J. 66, 248 A.2d 425 (1968) .... 14

State v. Russo, 3 Conn.App. 137, 485 A.2d 1335

GOI bak deg ncn kenhivs CUkUN accu eneaeaniaks 14

CITATION TO OPINIONS BELOW

The opinion of the United States Court of Appeals for

the First Circuit, Manocchio v. Moran, 919 F.2d 770 (1st Cir.

1990). The opinion of the United States District Court for

the District of Rhode Island, Manocchio v. Moran, 708 F.

Supp. 473 (D.R.I. 1989). The opinion of the Supreme

Court of Rhode Island, State v. Manocchio, 497 A.2d 1 (R.I.

1985).

JURISDICTION

Petitioner sought federal habeas corpus relief from

his state conviction under 28 U.S.C. § 2254. The United

States District Court for the District of Rhode Island

granted his petition and ordered the State of Rhode

Island to commence a new trial within 90 days or suffer

the writ to issue. The State appealed from that Order to

the United States Court of Appeals for the First Circuit.

The First Circuit reversed. Petitioner seeks review of that

reversal by writ of certiorari.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the following provisions of the

federal Constitution:

U.S. Const. Amend. VI:

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 ascer-

tained by law, and to be informed of the nature

and cause of the accusations; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for

his defense.

U.S. Const. Amend. XIV, Sec. 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State in

which they reside. No state shall make or

enforce any law which shall abridge the privi-

leges or immunities of the citizens of the United

States; nor shall any state deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protections of the laws.

La,

STATEMENT OF THE CASE

The questior. in this case is whether the Confronta-

tion Clause is offended by admission of an autopsy report

in a state homicide prosecution in absence of testimony

by the person who performed the autopsy. The patholo-

gist in this case was Dr. Joel Zirkin, an associate state

medical examiner on a two-year appointment, who

moved to Israel after his term expired. He conducted

postmortem examination and dissection of the victim, but

did not perform the gross and microscopic examinations

of the formalin-fixed brain, through which the cause of

death was established. These were done by a consulting

neuropathologist, Dr. Mary Ambler, in a conference

attended by the full staff, including Zirkin and his two

superiors, William Q. Sturner, the Chief Medical Exam-

iner, and Arthur Burns, the Deputy Chief, all of whom

participated. (Tr. 1987) Dr. Ambler submitted written

findings which were largely incorporated in the autopsy

report, prepared by Zirkin and signed by all three medi-

cal examiners, stating their collective conclusion that the

victim had died of multiple injuries after a beating and

that the manner of death was homicide. The Deputy

Chief Examiner was a witness at trial.

Petitioner now characterizes this as a “ ‘trial by affi-

davit’” from whose “ ‘evil’” he would have been pro-

tected, Petition at 3, had the absent exaininer been

deposed or produced at trial. That is not the case. The

cause of death was not determined by Dr. Zirkin alone,

from his external and internal examination of the body at

autopsy; this was jointly determined by the full staff after

consultation with the neuropathologist. Zirkin was the

least experienced member of the staff, moreover; his testi-

mony could not have added anything that Dr. Burns, the

Deputy Chief, could not have provided with greater

expertise.

Expertise was not what the defense desired in this

case, however. Though petitioner now represents to this

Court that the cause of death was “a legitimately dis-

puted issue” below, Petition at 3, he had moved before

trial to exclude not only the autopsy report and “any and

all hospital, medical,” or other reports “ostensibly proba-

tive of any medical opinion of the cause of the victim’s

death” from evidence, but also, “the testimony of any

medical examiner, associate medical examiner, physician,

pathologist, or any medical professional person regarding

the cause of death of the victim, including but not limited

to” the Chief and the Deputy Chief Medical Examiners.

(Tr. 1908) Similarly, though petitioner now excoriates the

prosecutor for having failed to depose the former associ-

ate medical examiner before the witness left the country,

Petition at 10-11, he fails to mention that two of his

codefendants told the trial court they had opposed the

State’s motion to take the deposition. (Tr. 1918-19) Peti-

tioner’s assertion now that his “objection to the use of

documentary evidence in preference to live testimony

was not an obstructionist effort”, Petition at 3, is belied

by the record.

The First Circuit conducted a careful and painstaking

review of the confrontation analysis of the hearsay evi-

dence addressed in Ohio v. Roberts, 448 U.S. 56 (1980), and

United States v. Inadi, 475 U.S. 387 (1986), and found the

reascning of the latter “applies equally well to distin-

guish the former testimony of Roberts from most of the

other hearsay exceptions, such as - for example - busi-

ness records or public records.” Id. at 774. The circuit

court noted that “While an autopsy report, strictly speak-

ing, does not fall within the category of a clearly recog-

nized hearsay exception,” it “shares most of the features

of both the business records and the public records excep-

tions” codified in Rules 803(6) and (8) of the Rules of

Evidence, “and the reasoning of Inadi similarly applies.”

Id. As it recognized, the Supreme Court of Rhode Island

also found autopsy reports admissible as a business or

public record under state evidence law, id. at 776-77 (cit-

ing Manocchio, 497 A.2d at 6). The court found no real

benefit to be gained from live testimony of the patholo-

gist, because “If any length of time has passed since the

performance of the autopsy, the medical examiner will

probably not remember the autopsy and its results inde-

pendently from the report itself.” Id. at 775. Moreover,

“detailed descriptions” of the body “and often his judg-

ments will be superior at the time he writes the report to

any he could make later; he will ordinarily be able to

testify only by reference to the report.” Jd. “Further,” the

court said, “the routine, standardized conditions under

which such reports are prepared, as well as the fact that

the medical examiner is exercising a special responsibility

which the law assigns to him, assure their independent

reliability.” Id. [emphasis added]. The court therefore held

ihat the autopsy report in this case “possessed sufficient

‘particularized guarantees of trustworthiness’ that its

admission in the absence of live testimony by its preparer

did not offend the Confrontation Clause.” Id. at 777. It

emphasized factors underlying that conclusion, however,

id., and then went on to identify and to examine in detail

the four distinct kinds of hearsay admitted in the report:

(1) descriptive observations of the condition of the

corpse; (2) medical opinions as to the nature of any

injuries or illnesses, and conclusions as to the medical

cause of death, based on those opinions; (3) statements as

to the circumstances surrounding the death, taken from

police reports or other sources; and (4) the conclusion

that the manner of death was homicide. Id. at 778-784.

FACTUAL BACKGROUND

In the late evening of November 1, 1980, Richard

Fournier and Maureen Enright went to Gantry’s night-

club on Mineral Spring Avenue in North Providence,

Rhode Island, to hear the band known as “Love Lace,” for

whom Fournier had once worked.

Also at the club that evening were five men, later

identified as Nicholas Manocchio [Petitioner here]; his

brother, Louis Manocchio; Paul Eacuello; his brother,

Stephen Eacuello; and James Massarone. Witnesses were

able to describe one or more of these men as having

attracted their notice for various reasons that evening See

State v. Manocchio, 497 A.2d 1, 3-4, 9-10 (R.i. 1985); see also

Record at 751, 946, 1217, 1226, 1234, 1279, 1594-98,

1626-29, 1633-34, 1715. One of the men had a cast on his

arm. (Tr. 935-37, 970, 1226, 1594, 1628) The one with the

cast identified himself as “Nicky” (Tr. 1101) and came

back to the dressing room looking for Fournier (Tr. 1224)

on the pretext of booking the band. (Tr. 937, 1224) This

man told Maureen Enright, “ ‘Your boyfriend’s as good as

dead.’ ” (Tr. 981-82)

Marguerite Fournier, the victim’s mother, testified

that for approximately two weeks before that night she

hud been receiving telephone calls and visits from a man

identifying himself as Stephen Eacuello, who said he was

looking for her son, Richard. Eacuello called on October

26 and told her to tell Rick not to leave: “ ‘We have to see

him.’ ” (Tr. 427-30) That same evening, Eacuello and two

other men came to her house. One was James Massarone.

(Tr. 439-41) The third man was obnoxious; he told Mrs.

Fournier her son owed them each a thousand dollars and

there would be ” ‘problems’ ” if they didn’t get to see

him. (Tr. 433-35) Eacuello came to the house again Octo-

ber 27th. On the 30th, he called and said, “ ‘We are sorry

for the problem we have caused you, but it’s out of my

hands now.’ ” (Tr. 437-38) Mrs. Fournier testified that the

last time she saw her son, he was in very good health. (Tr.

443)

Jayne Leo and Bruce Martin were leaving Gantry’s

around one o’clock that morning when Jayne saw four

men fighting outside in the parking lot, “screaming, hol-

lering, kicking and hitting” as “the person they were

beating on” was yelling, “ ‘Help me, help me, someone,

please, help me. Let me explain. I can explain the whole

thing.’ ” State v. Manocchio, 497 A.2d at 4. The struggling

group progressed to the rear of a car and the victim fell to

the ground, eventually crawling underneath the car and

clinging to the axle in effort to avoid the constant kicking

of his attackers as he cried for help. Id. At some point

Jayne saw the “big person” she had noticed inside the

club walk to the back of the lot and get into a pale yellow

Cadillac. He brought the car around, and opened the

passenger door. The assailants tried to pull Fournier out

from under the other car, telling him, “ ‘Get in this

car. You'll make it a lot easier on yourself. Just get in this

car.’ ” Id. Jayne was still watching as she pulled her own

car out of the lot and then drove up the street to where

Bruce Martin was parked. (Tr. 1715-1727)

The band was playing the last set when Charlene

O’Brien, lead singer for the band, ran onto the stage and

tried to enlist help. (Tr. 939, 1630) Fournier was lying on

his back in the parking lot, bleeding. His pants had been

torn off his body and he was naked from the waist down.

(Tr. 985, 1770-72) A boot was retrieved from the gutter the

next day; the pants were found a quarter of a mile further

down the road. (Tr. 1846-48) Mrs. Fournier identified

these as having belonged to her son. (Tr. 444)

Robert Marcoux, a bartender at Gantry’s, had been a

combat medic in Vietnam and went out to try to adminis-

ter first aid until the rescue squad arrived. He found

Fournier bleeding profusely and apparently in shock, his

throat full of blood. Marcoux gave him mouth-to-mouth

resuscitation until the rescue squad arrived and conveyed

Fournier to Roger Williams General Hospital in Provi-

dence (Tr. 1226-29). He died within the hour.

Petitioner and his four codefendants were indicted

three months later for murder and conspiracy to murder,

and the case came to trial in September 1982. Petitioner,

his brother, and Paul Eacuello were each convicted of the

lesser offenses of voluntary manslaughter and conspiracy

to commit assault and battery with a dangerous weapon.

The jury was unable to reach a verdict with respect to the

other two defendants, and a mistrial was declared as to

each of them. Defendants’ direct appeal was denied by

the Supreme Court of Rhode Island in 1985 and the

convictions were all affirmed. State v. Manocchio, 497 A.2d

1. Petitioner successfully petitioned the United States Dis-

trict Court for habeas relief under 28 U.S.C. § 2254, Man-

occhio v. Moran, 708 F. Supp. 473 (D.R.I. 1989), but that

decision was reversed on appeal, Manacchio v. Moran, 919

F.2d 770 (ist Cir. 1990). Petitioner now seeks_review by

writ of certiorari to the Court of Appeals for the First

Circuit.

ARGUMENT

I. THE FIRST CIRCUIT CORRECTLY DECIDED

THAT THE NATURE AND PURPOSES OF THE

BUSINESS-RECORDS AND PUBLIC-RECORDS

EXCEPTIONS TO THE HEARSAY RULE MAKE A

SHOWING OF THE UNAVAILABILITY OF THE

‘DECLARANT CONSTITUTIONALLY UNNECESS-

ARY.

Petitioner attacks the conclusion of the First Circuit

that the Confrontation Clause does not require a demon-

stration of the unavailability of the declarant, before hear-

say evidence in an autopsy report may be admitted. 919

F.2d at 774-76. He reasons that Ohio v. Roberts, 448 U.S. 56

(1980), requires it. In the alternative he argues that an

“availability” rule “would significantly enhance the truth

seeking function” of the Clause. Petition ai 18.

What the First Circuit held was that “Recent Supreme

Court precedent indicates that while reliability continues

to be a key factor in Confrontation Clause analysis of

hearsay, the declarant’s availability, in a case like the

present, is not.” 919 F.2d at 774. The court went to explain

that in United States v. Inadi, 475 U.S. 387, 394 (1986), this

Court “declared that ‘Roberts cannot fairly be read to

stand for the radical proposition that no out-of-court

statement can be introduced by the government without a

showing that the declarant is unavailable.’ ” Id. It went on

to note Inadi’s holding that co-conspirator statements of a

non-testifying declarant may be admitted without a

showing of unavailability, and concluded, “We believe

that Inadi is controlling here.” Id.

Roberts concerned prior testimony. The rule requiring

a showing of the declarant’s unavailability was based on

the preference “for present, live testimony” where avail-

able. Id. In Inadi, however, it was pointed out that state-

ments made by a coconspirator while the conspiracy was

in progress “could not be replicated, even if the declarant

testified to the same matters in court.” Id. (citing 475 U.S.

at 396). The First Circuit concluded that the analysis

“applies equally well” to reliable out-of-court statements

admissible in business records and public records. Id. The

court reasoned that observations contemporaneously

recorded at autopsy were undoubtedly superior to any

later testimony a medical examiner could give at trial,

when he “will probably not remember the autopsy and its

results independently” and would “ordinarily be able to

testify only by reference to the report.” Id. at 775.

Review of Dr. Zirkin’s Grand Jury testimony bears

this out, in fact, as the First Circuit noted, 919 F.2d at 778

n.14:

In the present case, even if Dr. Zirkin had been

called as a live witness, he would most likely

have been forced to base his testimony upon his

own written autopsy report because of the large

numbers of autopsies that medical examiners

perform and because of the length of time that

passed between the time of performing the

autopsy and the time of trial. In Dr. Zirkin’s

earlier testimony before the Grand Jury in the

same case, he stated, “If I may refer to my

notes,” and took his answers thereafter directly

from the report.

Certiorari was granted in Inadi to “resolve the question

whether the Confrontation Clause requires a showing of

unavailability as a condition to admission of the out-of-

court statements of a nontestifying co-conspirator, when

those statements otherwise satisfy the requirements of

Federal Rules of Evidence 801 (d)(2)(E).” 106 S.Ct. at

1124. This Court concluded it did not, finding only “mar-

ginal protection” would be afforded to defendants by an

“unavailability rule’ when compared with the “signifi-

cant practical burden” it plates on the prosecution. The

Court pointed out moreover that “the defendant himself can

call and cross-examine such declarants” by exercise of his

rights under the Compulsory Process Clause. 106 S.Ct. at

1129. [Emphasis added.] Thus the Court declared, “We

hold today that the Confrontation Clause does not

embody such a rule.” Id.

The single factor uniformly looked to among the

States and federal Circuits in deciding confrontation

claims has been the reliability of the evidence at issue. It

is the effort to “afford the trier of fact a satisfactory basis

for evaluating the truth” that gives meaning to the right

in a criminal trial, California v. Green, 399 U.S. 149, 161

(1970), and this rests upon reliability.

Every case petitioner relies on where an autopsy

report or other scientific record or report was held inad-

missible was based on a finding that the evidence in issue

was somehow less than trustworthy. This was true, for

example, in Stevens v. Bordenkircher, 746 F.2d 342 (6th Cir.

1984), where, the First Circuit court pointed out, the

autopsy report “was not based on an autopsy of any kind,

and it falsely created the impression that its contents

reflected the coroner’s independent medical conclusions

based on such an autopsy. Such showings would clearly

justify excluding this particular report from evidence for

Confrontation Clause purposes.” 919 F.2d at 779 n.16.

As the First Circuit noted, in this case, “Dr. Burns, the

Deputy Chief Medical Examiner, who testified at the trial,

authenticated the report and established that it was pre-

pared under the auspices of the Medical Examiner’s

Office” in accord with statutory requirements and estab-

lished medical procedures of the Office. Burns “described

the statutory mandate of the Office of the Medica! Exam-

iner, the way in which this mandate is carried out, and

the generalized procedures of the Office regarding con-

duct of autopsies and preparation of the reports.” Id. at

778. As the circuit court noted, however, “It happened in

this case that Dr. Burns also had personal familiarity with

this autopsy, qualifying him to testify to more than just

the general procedures for conducting autopsies and pre-

paring reports.” Id.

Had petitioner actually meant to test the conclusions

of the examiners as to cause of death, as he would have

this Court believe, Petition at 18, he had Dr. Burns right

there on the stand. As the record shows, however, supra,

petitioner had already sought to preclude him from testi-

fying substantively.

It is submitted the First Circuit correctly applied the

reasoning of Inadi in this case.

II. THE CONCLUSIONS OF THE FIRST CIRCUIT

ARE NOT IN CONFLICT WITH THOSE FEW CiR-

CUITS AND STATES THAT HAVE RECENTLY

ADDRESSED THE NARROW ISSUE.

It is not the case that the opinion of the First Circuit

“conflicts with federal and state decisions” on the

reliability of autopsy and other medical or scientific

reports. Petition at 20. Indeed, the overwhelming trend

would seem in accord with the First Circuit. In Robertson

v. Comm., 211 Va. 62, 175 S.E.2d 260 (1970), for example,

the Supreme Court of Virginia reviewed a state law pro-

viding that “ ‘Reports of investigations made by Chief

Medical Examiner or his assistants . . . and the records

and reports of autopsies made under the authority of this

chapter, shall be received as evidence in any court or

other proceeding,’ ” id., 175 S.E.2d at 262 (quoting VA.

CODE § 19.1-45), and observed:

The purpose of the statute is primarily to obvi-

ate the necessity of summoning as witnesses

those physicians or technicians who, in their

official capacity, are required to make patholog-

ical, bacteriological and toxicological investiga-

tions, as well as post-mortem examinations.

Such a provision is not only expedient and con-

venient — it prevents the delay that would result

if the limited number of physicians, chemists

and technicians were forced to testify whenever

a report made by them was offered in evidence.

The admission of a laboratory report in evidence

violates no constitutional right of a defendant.

The right to be confronted with one’s accusers

and witnesses does not operate to exclude

proper documentary evidence.

Id.

To the same effect are Salzetti v. Nichols, 744 P.2d 1362

(Utah 1987) (HLA test on blood sample to prove paternity

admissible as exception to hearsay rule without testi-

mony of technician); State v. Mayberry, 411 N.W.2d 677

(Iowa 1987) (medical examination report admissible pur-

suant to statute); McLean v. State, 482 A.2d 101 (Del. 1984)

(blood alcohol test admitted without chemist did not

abridge right of confrontation); Howard v. United States,

473 A.2d 835 (D.C.App. 1984) (chemical analysis as busi-

ness record bore sufficient indicia of reliability for con-

frontation purposes); People v. Tenorio, 590 P.2d 952 (Colo.

1979) (official public records admissible as exception to

hearsay rule to prove truth of contents). See also State v.

Reddick, 532 N.J. 66, 248 A.2d 425, 426 (1968) (per curiam)

(autopsy report prepared and filed as required by law

was correctly admitted after excising conclusions of

deceased medical examiner who performed post-mortem

examination; present assistant was then properly allowed

to testify as to his opinion of the cause of death, based on

the findings in the autopsy report).

In State v. Russo, 3 Conn.App. 137, 485 A.2d 1335

(1985), a doctor scheduled to testify in a New Haven trial

was in Providence unable to attend until the following

week; the hospital report of defendant’s statements to the

doctor was admitted pursuant to state law, without the

doctor’s testimony. In reviewing the claim that defendant

was denied his right to cross-examine the witness, the

intermediate appellate court held that the test for deter-

mining whether evidence such as the report “should be

admitted without affording the defendant the right to

confront the author is that there are ‘indicia of reliability’

which minimize the possibility of harm in placing the

evidence before the jury.” 485 A.2d at 1339. The court

noted that both patient and doctor were interested in

accuracy; that the doctor had no motive to falsify or

misrepresent findings; and that the report itself was not

prepared in anticipation of litigation. It concluded that

the evidence was “highly reliable” and that its admission

therefore did not violate the right of confrontation.

The same standard is seen in the federal cases. See

Hopkinson v. Shillinger, 866 I'.2d 1185, 1201 (10th Cir. 1989)

(when out-of-court victims’ statements “are corroborated

as extensively as here, the corroboration alone may be

sufficient to guarantee that the statements were trustwor-

thy.”); Mechler v. Procunier, 754 F.2d 1294, 1299-1300 (5th

Cir. 1985) (preliminary hearing testimony bore sufficient

indicia of reliability to permit admission “in complete

conformity with” the Confrontation Clause, where State

went to “incredible lengths” to find sole eyewitness who

was moving out of state next day; her testimony was “not

totally unsupported” so the jury could “logically infer

from other proof” whether her version was more likely

true than the defendant’s; no motive had been established

for her to lie; and the setting “provided guarantees of

trustworthiness” in circumstances “closely approximat-

ing” trial).

In Reardon v. Manson, 806 F.2d 39 (1986), the Court of

Appeals for the Second Circuit reversed the judgment of

the district court which cited Ohio v. Roberts, in holding

that Dr. Charles Reading, one of three toxicologists

employed in the toxicology laboratory of the Connecticut

Department of Health, should not nave been permitted to

testify to what he was told by his chemists, unless the

State first showed that the chemists themselves were

unavailable to testify. Id. at 41. Observing that the peti-

tioners did “not dispute the State’s contention that they

‘ had the right under Connecticut law to subpoena the

chemists as their own witnesses” id. at 42, the court

declared it would be “a manifest miscarriage of justice to

Overturn a conviction on the ground that the State

declined to call a witness whose testimony was available

to both parties.” Id. at 43. The court went on to observe,

“Of course, when the prosecution seeks to introduce a

hearsay statement without producing the declarant, the

confrontation clause requires a showing that the state-

ment bears adequate indicia of reliability and trust-

worthiness.” Id. It noted, “No one has questioned Dr.

Reading’s qualifications.” Id. It found in addition that the

assistant chemists “were relating matters of present fact,

of which they had immediate personal knowledge”, there

“was no realistic possibility that their statements were

based upon faulty recollection,” and “they had no motive

whatsoever to jeopardize their careers by falsifying”

information. “Moreover, they were well aware that Dr.

Reading himself was participating in tests, the results of

which would measure the accuracy of their own.” Id. The

court concluded:

Under such circumstances, there were adequate

indicia of reliability to satisfy the demands of

the confrontation clause.

Id.

Montgomery v. Fogg, 479 FSupp. 363 (S.D.N.Y. 1979),

is a case in point. Habeas corpus relief was sought in part

on the basis that admission of an autopsy report at trial

without testimony of those who performed the autopsy

impinged upon tne right of confrontation. The district

court noted that official reports “are a recognized excep-

tion to the hearsay rule and have long been deemed

admissible, notwithstanding the confrontation clause.” Id.

at 370. The court explained, “The rationale supporting

their admissibility is that they have sufficient ‘indicia of

reliability’ to ‘afford the trier of fact a satisfactory basis

for evaluating the truth of the prior statement.’” Id.

Autopsy reports in New York “are official records kept in

the regular and usual course of the performance by the

medical examiner of his official duties”; their “reliability

is underscored by the rigid requirements” set by state law

for medical examiners. “Indeed,” the court reasoned, “if

business records are admissible as an exception to the

hearsay rule because they have the ‘earmarks of

reliability’ or ‘probability of trustworthiness’ (citing Pal-

mer v. Hoffman, 318 U.S. 109, 113-14 (1943)), then, a forti-

ori, public records kept pursuant to statute carry greater

weight of reliability.” Id. at 370-71.

Again, where such reports have been excluded, gen-

erally they have been found to be somehow unreliable for

the truth of the matter asserted in them. See Monn v. State,

300 Md. 354, 478 A.2d 695 (1984) (toxicology report

admitted over objection without its author required

reversal where facial discrepancies in report raised

doubts as to its reliability).

CONCLUSION

It is true this Court has not directly passed upon the

effect of the Confrontation Clause on admission of an

autopsy report in a homicide case without testimony by

its author. It may be that the-issue is ripe, as petitioner

would urge. The Seventh Circuit recently observed in

another context, “At present, . . . there is no single

authoritative criterion for when the admission of hearsay

evidence violates a defendant’s constitutional right to

confrontation.” Nelson v. Farrey, 874 F.2d 1222, 1227 (7th Cir.

1989), cert. denied, __ U.S. __, 110 S.Ct. 835-36 (1990).

This Court had “decline[d] to endorse a mechanical

test for determining ‘particularized guarantees of trust-

worthiness’ ” of hearsay evidence under the Confronta-

tion Clause, however, Idaho v. Wright, __ U.S. __ 1 __ 7

110 S.Ct. 3139, 3150 (1990). Review last Term was denied

in a similar case in which the Supreme Court of Connecti-

cut upheld admission of an autopsy report as a business

record introduced through the testimony of a pathologist

not present at the autopsy. State v. Damon, 214 Conn. 146,

570 A.2d 700, cert. denied, U.S. __, 111 S.Ct. 65 (1990).

In that case, citing precedent of its own and of the Second

Circuit in Reardon v. Manson, 806 F.2d 39 (2d Cir. 1986),

cert. denied, 481 U.S. 1020 (1987), Connecticut held:

An autopsy report derives from well recog-

nized, routine procedures, and records objective

facts. These procedures are performed hundreds

of times each year, and in light of their fre-

quency, are so generally considered reliable that

they are normally undisputed. The pathologist

performing the autopsy, Shah, had no motive to

falsify her findings and owed no special alleg-

iance to the state’s attorney. Shah, as a physician

and state employee, has a professional duty to

report the results of her work in an accurate and

truthful manner. [Citing State v. Cosgrove, 181

Conn. 562, 575-77, 436 A.2d 33 (1980).] Like a

toxicology report, an autopsy report is essen-

tially a factual report limited to objective, physi-

cal observations. As such, it contains sufficient

indicia of reliability to afford the trier of fact a

satisfactory basis for evaluating the truth of the

prior statement.

214 Conn. at 159-60, 570 A.2d at 707-08.

The same reasoning is found in the opinion of the

First Circuit in this case. It is submitted the court’s dis-

cussion represents a most thoughtful and reasoned con-

sideration of the very factors the Court has looked to, in

its other cases, for “ ‘hearsay marked with such trust-

worthiness that there is no material departure from the

reason of the general rule.’ ” Idaho v. Wright, ___ U.S. at

__, 110 S.Ct. at 3150.

The First Circuit decision is sound and should be

allowed to stand. The petition for certiorari should be

denied.

Respectfully submitted,

James E. O’NEIL