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Trial court didn’t err in allowing deliberating jury to review the state pathologist’s report, but not the report of the defendant’s pathologist

State v. Chase M.A. Boruch, 2013AP925-CR, District 3, 1/22/14; court of appeals decision (not recommended for publication); case activity

While deliberating on the charge that Boruch killed his mother, the jury asked the judge for the “autopsy report.” (¶¶4, 8). The parties agreed to send back the preliminary and final reports done by Corliss, the state’s pathologist, along with a toxicology report; however, the judge refused Borcuch’s request to send the jury the report of Randall, the pathologist who testified for the defense, though the court said it would consider doing so if the jury asked for that report. (¶¶8-9). Although the trial court didn’t expressly consider the criteria a judge should use in exercising its discretion to send exhibits to the jury room, see State v. Hines, 173 Wis. 2d 850, 860, 496 N.W.2d 720 (Ct. App. 1993), the court of appeals affirms the trial court’s decision:

¶13      We conclude the circuit court’s decision was proper because Randall’s report would not have aided the jury and could have been subjected to improper use. By the very terms of its request, the jury wanted the autopsy report. The trial court appropriately construed this request to mean the documents memorializing the data collected from the State’s postmortem investigation. If the circuit court had responded by sending back Randall’s report with the autopsy and toxicology reports, the court would have, in the State’s words, “been implicitly sending the message that the Randall report was part of the autopsy documents ….” This may have caused the jury to place undue weight on Randall’s conclusions regarding the potential cause of death. See Shoemaker [v. Marc’s Big Boy]51 Wis. 2d [611,] 619[, 187 N.W.2d 815 (1971)] (trial court properly refused to submit written report to the jury when much of the report duplicated testimonial evidence and submission would have overemphasized the written portions of the report).

The trial court’s reasoning was based in large part on its characterization of Corliss’s report as “not opinionated in the classical sense” because, while the report’s factual findings indicated possible causes of death (drowning, strangulation, drug overdose), Corliss refused to reach a conclusion about the cause or manner of death. (¶¶4-5, 9). The court of appeals rejects Boruch’s attempt to cast Corliss’s report as more opinionated than the trial court concluded. (¶14-15). While Randall opined the victim “could have” died from a number of conditions (6, 17), one might wonder whether Randall’s report really was more “opinionated” than Corliss’s; as the decision itself says, “Corliss and Randall agreed they could not conclusively determine how [the victim] died.” (¶17). If the distinction between how “opinionated” the reports were is as illusory as these descriptions suggest, the trial court’s reasoning is at least partly unsupported.

The court of appeals also concludes that any error in not sending Randall’s report to the jury was harmless. The report “was not highly exculpatory” (as well as inconsistent with Boruch’s own testimony); there was “compelling circumstantial evidence” of motive and opportunity (in particular, Boruch’s assisted the victim in purchasing insurance policies on which he was the beneficiary); and Boruch admitted he initially lied to the police about what happened. (¶¶16-22).

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