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Surrogate medical examiner’s testimony didn’t violate Confrontation Clause

State v. Miguel Muniz-Munoz, 2014AP702-CR, 3/1/16, District 1 (not recommended for publication); case activity (including briefs)

By the time Muniz-Munoz went to trial for first degree intentional homicide, the medical examiner who conducted the autopsy of the victim was dead. The trial court allowed another medical examiner who reviewed the case record to give his independent opinion about the cause of the victim’s death. This did not violate Muniz-Munoz’s right to confrontation.

Muniz-Munoz objected to the testimony of Peterson, the surrogate medical examiner, citing Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). The state responded that Peterson’s testimony was proper under State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, which obviously predates Crawford and its progeny:

¶23     The trial court expressed some concern over the efficacy of the Williams holding at the time of the trial, but ultimately allowed the State to elicit Dr. Peterson’s independent opinion as to Lara’s cause of death. After the trial was concluded and the briefing in this case began, our supreme court released State v. Griep, 2015 WI 40, 361 Wis. 2d 657, 863 N.W.2d 567. There, our supreme court, after reviewing the United States Supreme Court’s numerous decisions on the confrontation issue, affirmatively stated that: “[the expert witness’s] review of Griep’s laboratory file, including the forensic test results of an analyst who was unavailable for trial, to form an independent opinion to which he testified did not violate Griep’s right of confrontation.” Id., ¶3 (emphasis added). The supreme court reasoned that where an expert testifies to his or her independent opinion, the right of confrontation is not violated. See id., ¶¶47-57.

¶24     Here, Dr. Peterson rendered his independent opinion concerning Lara’s cause of death. He testified that after reviewing the autopsy file and the photographs reflecting multiple gunshot injuries, that it was his opinion, to a reasonable degree of medical certainty, that Lara’s cause of death was the result of multiple gunshot wounds.

¶25     We agree that Dr. Peterson’s independent opinion regarding the cause of Lara’s death did not violate Muniz-Munoz’s right to confrontation. See id., ¶3. Further, we observe that inasmuch as Muniz-Munoz’s defense was that he was not present at the time of the shooting and took no part in the shooting, the question of the victim’s cause of death was not an essential part of his defense.

Muniz-Munoz’s other challenges to his conviction fare no better.

  • His claim that there were sleeping jurors is dismissed because the circuit court found the jurors in question weren’t sleeping, and those findings aren’t clearly erroneous. (¶¶13-18).
  • His claim that the circuit court should have given his proposed jury instruction about his incriminating statement founders in the face of the circuit court’s discretionary decision to give the standard jury instruction, Wis. J.I.—Criminal 180. (¶¶26-29).
  • Last, his claim that the circuit court should have granted his motion for discovery of evidence that he was tortured in Mexico, where he was arrested after he fled Wisconsin, and then dismissed the charges because of that torture is undone by the rule that the manner in which a defendant is brought to trial doesn’t bar the government from trying him. (¶¶30-35).
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