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Medical examiner’s reliance on toxicology report of out-of-state lab violated defendant’s right to confrontation

State v. Jason S. VanDyke, 2015 WI App 30; case activity (including briefs)

In this prosecution for reckless homicide by delivery of heroin, VanDyke’s right to confrontation was violated where the medical examiner relied on the toxicology report of an out-of-state drug testing lab to conclude the victim had died of a heroin overdose, the toxicology report was admitted into evidence as part of the autopsy report, but no witness from the lab was called to testify about the toxicology testing.

Under Crawford v. Washington, 541 U.S. 36, 68 (2004), out-of-court testimonial statements are barred by the Confrontation Clause unless the witness is unavailable and the accused had a prior opportunity to confront that witness. The lab report here was clearly testimonial under Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011), where the Court determined a laboratory report regarding the alcohol content of the defendant’s blood was testimonial because even though it was not sworn, the report’s “formalized” nature was demonstrated by the facts that it was signed and was headed a “report.”

¶17     …. The [lab report] is substantially similar to that in Bullcoming; it set forth the analyst’s findings, was titled as an official “report” from the university lab, and was hand signed. The document was further imbued with formality by the three date and time stamps set forth above the signature. Additionally, the analyst would reasonably expect that the document, which was requested by the medical examiner to aid in determining Trittin’s cause of death, “would be available for use at a later trial.”… See Crawford, 541 U.S. 36, 51-52.

The court easily bats down the state’s claim that the lab report was not testimonial under Williams v. Illinois, 132 S. Ct. 2221 (2012), and State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362. As noted on these pages many times before, Williams was a split decision that offers no guidance in most cases and that Deadwiller followed “because Deadwiller and Williams are in substantially identical positions.” 350 Wis. 2d 138, ¶32.

¶19     The facts of Williams and Deadwiller are not similar to those here. For example, those were sexual assault/DNA cases, the laboratory report “was not introduced into evidence in either case[, and p]rosecutors in both cases introduced inventory reports, evidence receipts, and testimony to prove a chain of custody[.]” Deadwiller, 350 Wis. 2d 138, ¶32. Accordingly, as Williams and Deadwiller are narrowly limited to the facts of those cases, they are inapplicable here.

Nor does the state’s reliance on State v. Heine, 2014 WI App 32, 354 Wis. 2d 1, 844 N.W.2d 409, get it anywhere. That reckless homicide case also involved a medical examiner who relied on a toxicology report prepared by a non-testifying expert, but there the ME formed his opinion about the cause of death based primarily on the observations he made during the autopsy, which made the toxicology report a confirmatory piece of information rather that a linchpin. 354 Wis. 2d 1, ¶¶6-7, 14-15. To the state’s claim that this case are like Heine, the court has this to say:

¶24     Were the facts as the State proclaims, it would have a compelling Heine argument. However, the State’s characterizations of the facts have no basis, no matter how many times the State repeats them. As set forth above, Kelly’s autopsy examination did not lead him to Trittin’s cause of death; cause remained undetermined following the autopsy. …. Importantly, Kelly never testified he believed, prior to his review of the toxicology report, that heroin toxicity caused Trittin’s death. It cannot reasonably be argued that Kelly’s cause-of-death opinion was made independently of the toxicology report.

One more point: VanDyke’s trial lawyer didn’t object to the evidence, so this issue was raised as an IAC claim. Trial counsel’s reason for not objecting was that the toxicology report supported the defense strategy of claiming the victim was a junkie who died from some other drug. (¶10). The state says this shows trial counsel wasn’t deficient, but the court will have none of it:

¶27     …. This argument falls flat. It assumes that objecting to the report’s admission forever barred VanDyke from arguing based on the report. However, if the objection were successful, such argument would have been unnecessary because the State could not prove its case. Indeed, during the Machner hearing, trial counsel recognized that, if the report had been excluded, the State would not have been able to prove by other evidence the toxicology of Trittin’s blood. Alternatively, if the State was able to introduce the results of the report, due to a continuance or otherwise, VanDyke could still make his other-drugs argument at that time.[10]


[10] Moreover, we question the reasonableness of such a strategy in the first instance. Kelly testified there were no other drugs present in concentrations high enough to have contributed to Trittin’s death, much less to have independently caused it, and it does not appear any expert testified otherwise. The jury only needed to conclude the heroin was a “substantial factor” contributing to Trittin’s death. …

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