April 20, 2019

Colorado Court of Appeals: Defense Counsel Waived Confrontation Clause Claim by Eliciting Testimonial Statements

The Colorado Court of Appeals issued its opinion in People v. Merritt on Thursday, September 25, 2014.

Confrontation Clause—Autopsy Report—Testimonial.

A hotel desk clerk 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. Defendant, a security guard at the hotel, was charged with her death. He was found guilty of second-degree murder and was sentenced to thirty-six years in the custody of the Department of Corrections.

On appeal, defendant alleged that the court violated his rights under the Confrontation Clause by admitting an autopsy report prepared by a doctor who was not present at trial. Dr. Lear-Kaul performed an autopsy and authored a report detailing her findings and conclusions regarding the cause and manner of Welch’s death. Because Dr. Lear-Kaul was on maternity leave during the trial, her supervisor, Dr. Dobersen, testified regarding the autopsy report and the cause of death.

Given the state of the body, the nature of the crime scene, and the statutorily mandated cooperation between the coroner’s office and the district attorney’s office, it was reasonable for Dr. Lear-Kaul to assume that the report containing her findings and conclusions would be used in the eventual prosecution of a murder suspect. Therefore, the statements were testimonial. However, by asking Dr. Dobersen questions about alternative causes of death, which relied on facts contained in the autopsy report, defendant’s counsel intentionally opened the door on a particular line of questioning and effectively waived the right to confrontation. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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