Wednesday, April 8, 2015
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Court Rejects Confrontation Clause Challenge to Autopsy Report
By KENNETH OFGANG, Staff Writer
An autopsy report, from which diagnosis and cause of death was redacted, was admissible in a murder case in which the pathologist was unavailable to testify, the First District Court of Appeal ruled yesterday.
The panel affirmed a San Francisco man’s conviction of a murder that went unsolved for more than two decades
Justice Mark Simons, writing for Div. Five, acknowledged that the lack of a cohesive U.S. Supreme Court majority has prevented definitive resolution of “the problems in determining the admissibility under the confrontation clause of expert testimony relating the contents of reports prepared by absent experts that serve as a basis for the witness’s opinion.”
But the case of Lance Ford, he said, is indistinguishable from binding California Supreme Court authority finding autopsy reports by unavailable pathologists to be non-testimonial, and thus not rendered inadmissible by the Sixth Amendment.
Ford was sentenced to life imprisonment without possibility of parole in 2012 for first degree murder, with a rape special circumstance, in the 1981 death of Annie Barcelon. The victim’s body was found in the basement of her apartment.
Police said the 24-year-old woman had come home from a party and parked her car when she disappeared. Her roommate called security and Barcelon’s body was eventually found.
Arrested in Oregon
Ford was identified as the suspect in the case via DNA in 2004 and arrested in Oregon, where he was being held on unrelated sexual assault charges, according to news accounts. A pretrial motion to exclude the autopsy report—prepared by a pathologist who was no longer living—and the labels attached to the vaginal and rectal specimens used in the DNA testing was denied by San Francisco Superior Court Judge Anne-Christine Massullo.
The then-chief medical examiner testified at trial, based on the autopsy report prepared more than 30 years earlier, that the victim had been strangled and likely raped.
In addition to the DNA evidence, the prosecution presented testimony that Ford was staying less than a quarter-mile from the murder scene at the time the crime occurred, and that he had a history of sexual offenses.
The defense questioned the handling of the physical evidence, and presented testimony concerning an alternative suspect questioned by police not long after the murder, based on an eyewitness description of a man with long, wavy hair seen outside the complex. Prosecutors responded with evidence that man’s DNA was not found on the body.
Prior Case
Simons, writing for the Court of Appeal, said the autopsy report, and the medical examiner’s testimony, were admissible under People v. Dungo (2012) 55 Cal.4th 608.
The Dungo court held, 5-2, that there was no constitutional violation in having a pathologist working for the coroner’s office testify as to “objective facts about the condition of [the murder victim’s] body, facts he derived from [a subordinate pathologist’s] autopsy report and its accompanying photographs.”
The court said the facts “related to the jury were not so formal and solemn as to be considered testimonial for purposes of the Sixth Amendment’s confrontation right, and criminal investigation was not the primary purpose for recording the facts in question.”
Simons rejected the defense argument that the cases were distinguishable because the testifying pathologist in Dungo might not have relied solely on the autopsy report. The justice said the chief medical examiner did, in fact, testify in Ford’s case that her opinion was based on both the autopsy report and the accompanying photographs, and that if she based it on the report alone, it wouldn’t have made a difference.
“The only relevance in Dungo of the possibility that the testifying pathologist relied on the photographs appears to be that, if the photographs were the sole basis for the testimony, the confrontation clause would not be implicated,” Simons wrote. “…This has no bearing on whether the autopsy report is testimonial.”
U.S. Supreme Court
The justice acknowledged that the U.S. Supreme Court may eventually redefine what constitutes “testimonial” hearsay, and commented:
“Because autopsies continue to take place there is a need for a prompt modification of the autopsy protocol that will produce both a more reliable record and one designed to survive even a broad definition of testimonial. Suggesting the details of such a procedure is beyond both the scope of this opinion and our expertise. But organizations like the National Association of Medical Examiners, which prepares Forensic Autopsy Performance Standards…working in conjunction with appropriate representatives of the prosecution and criminal defense bar, should undertake this task.”
In an unpublished portion of the opinion, Simons said the specimen labels, which linked the specimens taken from the body to the case and to the defendant, were not testimonial and were properly admitted.
The case is People v. Ford, A137422.
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