Feb. 17, 2017 – Defendants have a constitutional right to confront the witnesses against them. But the Wisconsin Supreme Court recently ruled that this right was not violated when a medical examiner testified about a toxicology report she did not generate.
The state charged Rozerick Mattox with first-degree reckless homicide, alleging Mattox was the drug dealer who provided the heroin that killed a 27-year-old man in Waukesha.
A medical examiner determined that the victim died of “acute heroin intoxication” after a toxicology report confirmed high levels of morphine in the victim’s blood. A toxicologist at St. Louis University analyzed the blood sample and generated the report.
However, the St. Louis-based toxicologist did not testify at the bench trial. The medical examiner testified, and when the prosecutor asked about the toxicology report, Mattox’s lawyer objected to the report’s admissibility on constitutional grounds.
Since the medical examiner did not generate the report, Mattox argued that allowing it into evidence through the medical examiner’s testimony would violate his right to confront the witnesses against him, under the Sixth Amendment to the U.S. Constitution (Confrontation Clause) as well as the Wisconsin Constitution (Art. I, Section 7).
The circuit court judge overruled the objection, concluding the toxicology report was admissible and the medical examiner could testify about the report’s findings. The “cause of death” conclusion, the medical examiner testified, was based on the autopsy and the results of the toxicologist’s report, which showed fatal amounts of morphine.
The judge found Mattox guilty of the crime and Mattox appealed, arguing the judge should have sustained his objection to the toxicology report. The appeals court certified the case to the Wisconsin Supreme Court, noting differing decisions on related issues.
Majority: Toxicology Report Not Testimonial
The appeals court asked for clarity on so-called surrogate or substitute testimony. And in State v. Mattox, 2017 WI 9 (Feb. 14, 2017), a supreme court majority (5-2) held that admission and use of the toxicology report at trial did not violate Mattox’s rights.
The majority opinion, by Justice Rebecca Bradley, said the case presented an “issue of first impression” because previous decisions in this area dealt with forensic lab reports, not a “toxicology report requested by the medical examiner as a part of an autopsy to determine the cause of death where a crime had not yet been uncovered.”
The majority noted prior U.S. Supreme Court decisions involving forensic lab reports – Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 546 U.S. 647 (2011) – one that identified a controlled substance uncovered in a drug dealing investigation, the other revealing a driver’s blood alcohol concentration.
“The Court held both lab reports were testimonial and their admission, without the opportunity to cross-examine the authors, violated the Confrontation Clause,” wrote Justice R. Bradley. However, the majority opinion concluded that those decisions do not control here “because the lab report and its evidentiary use in Mattox’s case bear no resemblance to the reports or their use in Melendez-Diaz or Bullcoming.”
The majority noted that the forensic lab reports were requested by police for a criminal prosecution and were “affidavit-like or certified – providing the functional equivalent of trial testimony – significantly, about an element of the crime in each case.”
In this case, however, the biological samples were taken to determine the cause of death. They were not sent for testing as part of a criminal investigation against Mattox.
“Unlike in Melendez-Diaz and Bullcoming, the analyst who signed the report was not acting as a witness against Mattox and was not offering testimony with the primary purpose of saying that the heroin Mattox sold to S.L. killed him,” R. Bradley wrote.
Another decision, Ohio v. Clark, 135 S. Ct. 2173 (2015), guides whether the out-of-court statement (here, the toxicology report) is “testimonial” for purposes of the Confrontation Clause, R. Bradley noted. Only testimonial statements trigger the Confrontation Clause.
R. Bradley said Clark’s “primary purpose test decides whether the declarant is acting as a witness against the defendant … by considering whether the primary purpose of the out-of-court statement ‘was to gather evidence for [the defendant’s] prosecution.’”
The toxicologist who signed the toxicology report was not acting as a witness against Mattox, the majority concluded. The primary purpose of the toxicology report was to help the medical examiner determine cause of death.
“Because the toxicology report was not intended to substitute for testimony in a criminal prosecution, the report’s primary purpose very clearly is not testimonial,” wrote Justice R. Bradley, noting other factors that indicated the toxicology report was non-testimonial.
However, the majority declined the state’s request to declare all autopsy reports to be nontestimonial “because that is not the issue presented here.”
“We do, however, hold that all toxicology reports similar to the one here – solely identifying the concentration of substances present in biological samples sent by the medical examiner as a part of an autopsy protocol – are generally non-testimonial when requested by a medical examiner and not at the impetus of law enforcement.”
Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley. The dissenters would have applied a different formulation of the primary purpose test, arguing the majority “is not fully faithful to Clarke because it does not reveal or apply a primary purpose test that Clarke derives from confrontation cases.”
Clarke declared, Abrahamson noted, that statements are testimonial when the circumstances objectively indicate “that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
Applied to the toxicology report in this case, this “potentially relevant test” would determine that the toxicology report could potentially be used by prosecutors later.
“Applying the ‘potentially relevant’ formulation in the instant case, as well as other formulations of the primary purpose test, I conclude that the toxicology report’s primary purpose was to establish whether S.L died of a heroin overdose, a fact that was ‘potentially relevant to later prosecution,’” Justice Abrahamson wrote.