The motion argued that Dr. Gill performed the autopsies on Hooten and Windle but had since resigned and moved to California. Fulton alleged that under the holdings in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v. March, 216 S.W.3d 663 (Mo. banc 2007); and State v. Bell, 274 S.W.3d 592 (Mo.App. W.D.2009), “[t]he admission of Dr. Gill's report, and the testimony of Dr. Young, Dr. Dudley or Dr. Knight regarding, or based on, the contents or conclusions of Dr. Gill's report would constitute inadmissible hearsay.” The court denied Fulton's motion.
Id. at 667. While our Supreme Court has not decided whether an autopsy report is "testimonial," both the eastern and western districts of our court (in Davidson, 242 S.W.3d 409, and State v. Bell, 274 S.W.3d 592 (Mo.App. W.D. 2009), respectively) have faced this issue since the Court's decision in March and both have arguably concluded that an autopsy report is testimonial. In Davidson, the trial court admitted into evidence an autopsy report based on the testimony of a medical examiner who was not the examiner who had prepared it. 242 S.W.3d at 417.
An autopsy report prepared for the purpose of a criminal prosecution is a testimonial statement. State v. Bell, 274 S.W.3d 592, 595 (Mo. App. 2009). "As such, an autopsy report, or testimony regarding an autopsy report, cannot be admitted without testimony from the person who conducted the autopsy or prepared the report unless the defendant has had an opportunity for cross-examination." Id.
We agree that the expert should not have testified to the first examiner's opinions. See, e.g., State v. Bell, 274 S.W.3d 592, 595-96 (Mo. App. W.D. 2009) (finding it error for chief medical examiner to testify as to the conclusions of the doctor who conducted the autopsy). But we can find no error by the trial court when no objection was made to the expert's reference to the first examiner's opinion.
An autopsy report prepared for the purpose of a criminal prosecution is a testimonial statement. State v. Bell, 274 S.W.3d 592, 595 (Mo.App. 2009). "As such, an autopsy report, or testimony regarding an autopsy report, cannot be admitted without testimony from the person who conducted the autopsy or prepared the report unless the defendant has had an opportunity for cross-examination."
We have held that the Confrontation Clause prohibits the introduction into evidence of an autopsy report prepared by an absent medical examiner, and testimony concerning the opinions and conclusions reached by the absent examiner. See, e.g.,State v. Bell, 274 S.W.3d 592, 595–96 (Mo.App.W.D.2009) (“Dr. Dudley's testimony, to the extent she discussed Dr. Gill's opinions, was error and violated Mr. Bell's Confrontation Clause rights.”); State v. Davidson, 242 S.W.3d 409, 417 (Mo.App.E.D.2007) (admission of autopsy report prepared by absent medical examiner, and testimony as to absent examiner's conclusions, violated Confrontation Clause).
We have held that the Confrontation Clause prohibits the introduction into evidence of an autopsy report prepared by an absent medical examiner, and testimony concerning the opinions and conclusions reached by the absent examiner. See, e.g.,State v. Bell, 274 S.W.3d 592, 595–96 (Mo.App.W.D.2009) (“Dr. Dudley's testimony, to the extent she discussed Dr. Gill's opinions, was error and violated Mr. Bell's Confrontation Clause rights.”); State v. Davidson, 242 S.W.3d 409, 417 (Mo.App.E.D.2007) (admission of autopsy report prepared by absent medical examiner, and testimony as to absent examiner's conclusions, violated Confrontation Clause).
We have held that the Confrontation Clause prohibits the introduction into evidence of an autopsy report prepared by an absent medical examiner, and testimony concerning the opinions and conclusions reached by the absent examiner. See, e.g.,State v. Bell, 274 S.W.3d 592, 595–96 (Mo.App.W.D.2009) (“Dr. Dudley's testimony, to the extent she discussed Dr. Gill's opinions, was error and violated Mr. Bell's Confrontation Clause rights.”); State v. Davidson, 242 S.W.3d 409, 417 (Mo.App.E.D.2007) (admission of autopsy report prepared by absent medical examiner, and testimony as to absent examiner's conclusions, violated Confrontation Clause).
We have held that the Confrontation Clause prohibits the introduction into evidence of an autopsy report prepared by an absent medical examiner, and testimony concerning the opinions and conclusions reached by the absent examiner. See, e.g.,State v. Bell, 274 S.W.3d 592, 595–96 (Mo.App.W.D.2009) (“Dr. Dudley's testimony, to the extent she discussed Dr. Gill's opinions, was error and violated Mr. Bell's Confrontation Clause rights.”); State v. Davidson, 242 S.W.3d 409, 417 (Mo.App.E.D.2007) (admission of autopsy report prepared by absent medical examiner, and testimony as to absent examiner's conclusions, violated Confrontation Clause).
On a number of occasions this Court has addressed whether, in the wake of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), a medical examiner other than the one who performed an autopsy may testify to the results of the autopsy, or to opinions which rely on the results of the autopsy, and whether an autopsy report prepared by an absent medical examiner may itself be admitted into evidence. See State v. Martin, 291 S.W.3d 269, 283-88 (Mo.App. S.D. 2009); State v. Haslett, 283 S.W.3d 769, 778 (Mo.App. S.D. 2009); State v. Walkup, 290 S.W.3d 764, 767-68 (Mo.App. W.D. 2009); State v. Bell, 274 S.W.3d 592, 595-96 (Mo.App. W.D. 2009); State v. Davidson, 242 S.W.3d 409, 417-18 (Mo.App. E.D. 2007). We need not revisit these issues here, however, because even if Dudley's rights under the Confrontation Clause were violated by Dr. Knight's testimony, any error in the admission of her testimony was harmless, and cannot justify a new trial.