Arapahoe County District Court No. 08CR623 Honorable Charles M. Pratt, Judge.
John W. Suthers, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, James William Merritt, was found guilty of the second degree murder of Shirley Welch. He appeals his conviction and the sentence of thirty-six years in the custody of the Department of Corrections imposed by the district court.
¶ 2 This confrontation clause appeal asks us to determine whether an autopsy report prepared by a doctor who was not present at trial should be considered testimonial under Crawford v. Washington, 541 U.S. 36 (2004). We conclude that it should. We are further asked to determine whether an expert witness may refer to the absent doctor's testimonial statement in rendering his own opinion as to Welch's cause of death. Under the circumstances present here, he was properly permitted to do so.
¶ 3 On January 23, 2008, a desk clerk at a hotel on East Colfax found Welch's body in the room where she had lived for about five years. Her throat had been cut and a large amount of blood was visible on her body and on the bed beneath her.
¶ 4 Dr. Lear-Kaul performed an autopsy and authored a report detailing her findings and conclusions regarding the cause and manner of Welch's death.
¶ 5 Police investigators eventually focused on defendant, who worked as a security guard at the hotel and had a pass key to all of the rooms. Investigators identified his DNA in samples taken from the victim's room and body. Police interrogated him on March 13, 2008, and later arrested him. They then searched his storage locker and found a knife.
¶ 6 Prior to trial, the defense filed a notice under section 16-3-309(5), C.R.S. 2014, demanding that "employees or technicians testify in person to the results of any laboratory results received in evidence in any court proceeding[.]"
¶ 7 The prosecution endorsed several witnesses who had performed tests or prepared forensic reports in this case, including Dr. Lear-Kaul. Approximately a month before trial, the prosecution notified the defense that in lieu of Dr. Lear-Kaul, who would be on maternity leave during the trial, Dr. Lear-Kaul's supervisor, Dr. Dobersen, would testify regarding Dr. Lear-Kaul's autopsy report and the cause of death.
¶ 8 Defendant filed a motion in limine, requesting that the court exclude Dr. Dobersen's testimony because Dr. Lear-Kaul's report was hearsay and testimony regarding the report violated defendant's Sixth Amendment right to confront his accusers. At a pretrial readiness conference on August 7, 2009, the court heard arguments from the parties on the issue.
¶ 9 The defense argued that because Dr. Lear-Kaul had conducted the autopsy and authored the report, the defense should have the opportunity to confront her, and allowing Dr. Dobersen to testify in her place about the contents of the autopsy report violated defendant's confrontation rights.
¶ 10 The defense also argued that the report was subject to section 16-3-309, which requires that when laboratory test results are to be offered into evidence, the person who actually performed the laboratory analysis must testify in person.
¶ 11 The prosecutor responded that defendant's rights would not be violated because autopsy reports are nontestimonial and fit within the business record exception to the hearsay rule. The prosecutor argued that Dr. Dobersen, as an expert witness, could rely on reports prepared by other people when testifying about his own independent expert assessment of the cause of the death. The prosecutor further asserted that section 16-3-309 was inapplicable because Dr. Dobersen would testify to his own, independent assessment of the cause and manner of death.
¶ 12 The court denied the defense's motion in limine, explaining that, based on case law and CRE 703, an expert can rely on the opinions of other experts, but may not function as "a mere conduit . . . in adopting those opinions." The court cautioned that the ultimate admissibility of Dr. Dobersen's testimony depended on its actual content and the manner in which it was presented. The court also denied defendant's motion to continue the trial.
¶ 13 At trial, Dr. Dobersen was qualified as an expert in forensic pathology without objection. On direct examination, he testified that Dr. Lear-Kaul had performed the victim's autopsy in January 2008 and that he had reviewed her report as well as various crime scene and autopsy photographs.
¶ 14 Dr. Dobersen testified that the autopsy report disclosed that the victim had "a large, sharp force injury to her neck." He explained that he also saw sharp force injury to the neck in the photos he reviewed and that he was able to see damaged blood vessels and organs in those photos. During his testimony he used the photos as a visual aid to explain the injury to the jury.
¶ 15 He relied on the description of the injuries and findings in the autopsy report to give further specifics regarding the neck wound. For example, he stated, "looking at the description and some of the photographs, it looks like there may have been two" cuts to the neck. He also explained that he saw other injuries, including "sharp forced injuries to her hand" that he described as "relatively superficial, " and which "could be interpreted as someone trying to protect themselves from being attacked."
¶ 16 He testified that "[t]he other finding is that there were at least two transections of the airways, " and explained that both the voice box and the trachea were severed. He concluded from this finding that the "[o]nly way to get that would be two ...