Opinion
2023 KA 0286
12-27-2023
STATE OF LOUISIANA v. LARRY WEST
Antonio M. Tony Clayton District Attorney and Terri Russo Lacy Assistant District Attorney Port Allen, Louisiana Counsel for Plaintiff/Appellee State of Louisiana Jane L. Beebe Addis, Louisiana Counsel for Defendant/ Appellant Larry West Larry West Homer, Louisiana Defendant/Appellant Pro se
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Eighteenth Judicial District Court In and for the Parish of Iberville State of Louisiana Docket No. 273-18 Honorable Alvin Batiste, Jr., Judge Presiding
Antonio M." Tony"
Clayton District Attorney
and
Terri Russo Lacy
Assistant District Attorney
Port Allen, Louisiana
Counsel for Plaintiff/Appellee State of Louisiana
Jane L. Beebe
Addis, Louisiana
Counsel for Defendant/ Appellant Larry West
Larry West
Homer, Louisiana
Defendant/Appellant Pro se
BEFORE: MCCLENDON, HESTER, AND MILLER, JJ.
McClendon, J.
Defendant, Larry West, was charged by amended grand jury indictment with one count of second degree murder (count I), a violation of LSA-R.S. 14:30.1(A)(1); one count of attempted second degree murder (count II), a violation of LSA-R.S. 14:27(A) and 14:30.1(A)(1); and one count of possession of a firearm by a convicted felon (count III), a violation of LSA-R.S. 14:95.1(A). He entered a plea of not guilty on all counts. Following a jury trial, defendant was found guilty as charged on all counts. He moved for a post-verdict judgment of acquittal, but the motion was denied.
On count I, defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On count II, he was sentenced to a concurrent term of twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. On count III, defendant was sentenced to a concurrent term of twenty years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, filing a counseled and a pro se brief. In his counseled brief, defendant challenges the sufficiency of the evidence and argues that his right to confrontation was violated. In his pro se brief, he only argues a violation of his constitutional right to confrontation. For the following reasons, we affirm the convictions and sentences.
FACTS
On February 10, 2018, at approximately 9:00 p.m., following a Mardi Gras parade, Torray Darnell Collins (the victim of the attempted second degree murder), Christopher Carter (the victim of the second degree murder), and a group of their friends (the group) were hanging out on Mayer Street in Maringouin, when a blue 2012 Dodge Ram 1500 pickup truck driven by defendant's uncle, Danny Dale Smith, and occupied by defendant and a third unidentified person, passed by. Although someone in the truck rolled down a window, the truck continued down the road without incident.
However, Smith drove the truck back to where the group was located and parked. According to Collins, all three of the occupants then exited the truck, and defendant approached the group with a gun tucked under his arm. Collins testified that after "some words passed," defendant shot Collins in the right leg and then shot Carter, who immediately collapsed. Collins attempted to escape to a nearby field, at which point he heard Smith shout for defendant to return, and Collins saw defendant running back to the truck.
Carter was pronounced dead on February 11, 2018, at 1:54 a.m. His cause of death was a gunshot wound to the head. Multiple witnesses identified defendant as a person involved in the shooting.
SUFFICIENCY OF THE EVIDENCE
In counseled assignment of error number two, defendant contends the trial court erred in denying the post-verdict motion for acquittal because the scientific evidence was contrary to the State's theory, and thus, the evidence was insufficient to support the jury's verdict. The State's theory at trial was that the driver of the truck and its occupants could have simply continued on their way after first passing the group, but defendant, acting with specific intent to kill, chose to return, exit the vehicle with a gun, and become the aggressor. According to the State, the truck was fired upon only after defendant returned in the truck and shot the victims.
When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Duhon, 2018-0593 (La.App. 1 Cir. 12/28/18), 270 So.3d 597, 609, writ denied, 2019-0124 (La. 5/28/19), 273 So.3d 315. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. Hearold , 603 So.2d at 734; Duhon , 270 So.3d at 609. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. Hearold , 603 So.2d at 734; Duhon , 270 So.3d at 609.
Justin Taylor, a friend of Carter's who witnessed the shooting, testified that when defendant jumped out of the truck and approached the group, he asked, "What's the problem[,]" and Collins and Carter replied, "There's no problem." Taylor testified that defendant started walking away from the friends, but then said, "[F]*** it" and began shooting. Taylor denied having a gun or shooting at defendant.
Kim M. Carter lived close to the scene of the shooting and heard the gunshots. She exited her home and heard someone in a blue truck she knew as "Danny West" state, "[H]old up, hold up. Just shut the f**k up. [F]**k that s**t. [L]et's go [f]**king finish this s**t off." Kim Carter testified that someone else in the truck also said something, but she could not confirm it was defendant because she did not "know his voice." Kim Carter testified that the driver of the truck then returned to the scene of the shooting and shots were exchanged between the occupants of the truck and the group.
Kim Carter testified the statement was made by "Danny West," but indicated that was the only name she knew the person by.
Smith acknowledged that he drove himself and defendant to the scene of the incident in his blue 2012 Dodge truck. According to Smith, no one fired at his truck before defendant exited the vehicle. However, after Smith drove the truck back to the scene following Collins and Carter being shot, several people fired on his truck. Smith testified that Collins was "one of them out there" during the gunfire. He also testified that Carter shot at the truck. Smith admitted that defendant had a gun in the vehicle; however, Smith claimed he never saw defendant fire the weapon. Additionally, Smith conceded that he had given an earlier false statement in the matter.
Iberville Parish Sheriff's Office Detective Lori Morgan testified that she assisted in the processing of the truck following the incident. Detective Morgan stated that a bullet was recovered from under the truck's bed liner on top of the wheel well.
Louisiana State Police Crime Laboratory (LSPCL) Firearm Examiner, Chelsea Richardson, was accepted by the court as an expert in firearms analysis. Richardson testified that a lead bullet fragment and a lead bullet recovered from Carter's head, a 9 mm bullet recovered from the bed of the truck, five 9 mm cartridge casings, and nine .40 caliber cartridge casings were tested, but no firearms were submitted for analysis in connection with the case. All of the 9 mm casings were fired from the same weapon, and all of the .40 caliber casings were fired from the same weapon. However, Richardson was unable to determine if the 9 mm bullet found in the truck bed and the casings were fired from the same weapon because two bullets were needed for comparison, bullets could not be compared to casings, and no firearms were recovered in the case.
LSPCL Case Unit Manager, Phillip Simmers, was accepted by the court as an expert in DNA analysis. He testified that to a statistical certainty, the DNA profile obtained from swabbing the .40 caliber casings matched Carter's DNA profile. However, he noted that it was atypical for LSPCL to recover a DNA profile of this quantity and quality from cartridge casings that had been fired through a weapon. Simmers testified that the quantity of DNA on the cartridge casings was more consistent with transfer rather than handling of the casings and that given the proximity of the cartridge casings to Carter's blood on the ground, he would not be surprised if the DNA on the cartridge casings had come from the blood stain.
The State argued the most reasonable explanation as to why Carter's DNA was found on .40 caliber casings at the scene was that his blood spread onto the casings in the rain. The State relied upon the fact that the quantity and quality of Carter's DNA found on the casings was too great for it to have been placed there from his handling of the casings. Thus, the State concluded the presence of Carter's DNA on the casings did not establish that Carter fired a weapon during the incident.
However, according to the defense, it was impossible for the State to overcome the presence of Carter's DNA on the .40 caliber casings, which supported Smith's testimony that Carter had a gun and fired it and which had to have occurred before someone other than defendant shot Carter. Thus, the defense argued that the evidence established that Carter fired a .40 caliber gun nine times during the incident, and because he could have only done so while alive, Carter must have been shot by his friends.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV, § 1; LSA-Const. art. I, § 2. The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime and the defendant's identity as the perpetrator of the crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821(B); Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Williams, 2019-0077 (La.App. 1 Cir. 5/31/19), 2019 WL 2315340, *2 (unpublished), writ denied, 2019-01060 (La. 10/1/19), 280 So.3d 158. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. Williams, 2019 WL 2315340 at *2.
Second degree murder, in pertinent part, "is the killing of a human being: (1)[w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" LSA-R.S. 14:30.1(A)(1). The gravamen of attempted second degree murder is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Griner, 2019-0322 (La.App. 1 Cir. 9/27/19), 2019 WL 4731973, *3 (unpublished), writ denied, 2019-01984 (La. 7/24/20), 299 So.3d 68. Although the statute for the completed crime of second degree murder allows for a conviction based on "specific intent to kill orto inflict great bodily harm[,]" LSA-R.S. 14:30.1A(1) (emphasis added), specific intent to kill is an essential element of the crime of attempted second degree murder. Id. Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). The State bears the burden to prove those elements, along with the burden to prove the identity of the defendant as the perpetrator. State v. Coleman, 2017-1045 (La.App. 1 Cir. 4/13/18), 249 So.3d 872, 877, writ denied, 2018-0830 (La. 2/18/19), 263 So.3d 1155. When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. A positive identification by only one witness is sufficient to support a conviction. State v. Bessie, 2021-1117 (La.App. 1 Cir. 4/8/22), 342 So.3d 17, 23, writ denied, 2022-00846 (La. 9/20/22), 346 So.3d 802.
In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the factfinder, is sufficient support for a requisite factual conclusion. State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So.3d 603, 634, cert, denied, 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). Further, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Accordingly, on appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder's determination of guilt. Bessie, 342 So.3d at 23.
The jury heard all of the testimony and viewed all of the physical evidence presented at trial and, notwithstanding defendant's theory of innocence, found him guilty. Defendant's commission of attempted second degree murder and second degree murder was established by Collins's testimony that defendant shot him in the leg, by Collins's testimony that defendant shot Carter, and from Taylor's testimony that defendant opened fire on the friends after stating "[F]*** it." This testimony combined with a stipulation concerning defendant's prior conviction also established defendant's violation of count III. The presence of scientific evidence supporting defendant's theory was a matter of the weight, rather than the sufficiency, of the evidence. In finding defendant guilty, the jury clearly rejected the defense's theory of misidentification. See State v. Warren, 2013-1724 (La.App. 1 Cir. 3/24/14), 2014 WL 1177926, *3 (unpublished); State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury weighed Simmers's testimony that to a statistical certainty Carter's DNA profile matched the DNA profile obtained from swabbing the .40 caliber casings against his opinion that the quantity of DNA on the cartridge casings was more consistent with transfer rather than handling of the casings. In reviewing the evidence presented at trial, we cannot say that the jury's determination was irrational under the facts and circumstances presented. See Ordodi, 946 So.2d at 662. Considering the evidence presented at trial, the jury could have rationally concluded that defendant was the gunman in this case.
During the trial, the State and the defense stipulated that on April 27, 2015, defendant was convicted of possession of cocaine.
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a factfinder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder. See State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of the offenses charged, and defendant's identity as the perpetrator of those offenses.
This assignment of error is without merit.
RIGHT TO CONFRONTATION
In counseled assignment of error number one and defendant's sole pro se assignment of error, he argues that his right to confront his accusers was violated when the trial court permitted the forensic pathologist to testify from, and beyond the scope of, an autopsy report prepared by another forensic pathologist.
In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const, amend. VI. The confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). Testimonial statements, while not fully defined by the court, include those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364.
A coroner is required to make a written report of his investigation to the district attorney in any case involving a homicide. See LSA-C.Cr.P. art. 105. A coroner's report and a proces verbal of an autopsy shall be competent evidence of death and the cause thereof, but not of any other fact. Id. Pursuant to Article 105, such a report is excepted from the hearsay rule and may be admitted in evidence as proof of death and the cause thereof. State v. Kelly, 375 So.2d 1344, 1348 (La. 1979). Because Article 105 is narrowly drawn, it only allows the introduction of the coroner's report for evidence of non-testimonial hearsay. State v. Leonard, 2004-1609 (La.App. 1 Cir. 4/27/05), 915 So.2d 829, 833, writ granted, 2005-1382 (La. 2/3/06), 922 So.2d 1154, rev'd and remanded on other grounds. 2005-1382 (La. 6/16/06), 932 So.2d 660. When the coroner's report is admitted without the testimony of the coroner as to the authenticity of the report, and when the report is cumulative evidence as to death and cause of death, there is no substantial violation of a defendant's statutory or constitutional rights. State v. Russell, 42,479 (La.App. 2 Cir. 9/26/07), 966 So.2d 154, 165, writ denied, 2007-2069 (La. 3/7/08), 977 So.2d 897 citing State v. Vincent, 338 So.2d 1376 (La. 1976).
In Leonard, this court found error in the trial court's denial of a defendant's motion for mistrial based on the State's improper admission of evidence concerning the defendant's prior conviction, reversing the trial court's judgment and remanding for a new trial. Leonard, 915 So.2d at 836. On review, the Louisiana Supreme Court found that this court failed to apply the harmless error doctrine and, after doing so, concluded that the trial court's error was harmless and reversed this court's ruling as to that issue. Leonard, 932 So.2d at 668-69. This court's analysis with respect to LSA-C.Cr.P. art. 105 was not upset.
At the trial herein, St. Tammany Parish Coroner's Office Chief Pathologist and Medical Director for Forensic Operations, Dr. Michael Defatta, was accepted by the court as an expert in forensic pathology. As chief pathologist, Dr. Defatta's duties included individually performing autopsies and overseeing autopsies performed by other doctors. Dr. Defatta testified that he reviewed the report of St. Tammany Parish Coroner's Office Dr. Ann Lee, the forensic pathologist who performed Christopher Carter's autopsy.
The defense objected to Dr. Defatta testifying to an autopsy he had not personally performed, citing Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705,180 L.Ed.2d 610 (2011). The State argued that pursuant to LSA-C.Cr.P. art. 105 and Russell, a forensic pathologist was permitted to testify to the findings of another pathologist. The trial court overruled the objection, and Dr. Defatta testified that he agreed with Dr. Lee's findings that the cause of death was a gunshot wound to the head, and that the manner of death was homicide. Additionally, while the toxicology report indicated that alcohol and amphetamine were found in Carter's system, Dr. Defatta testified that the gunshot wound alone would have killed Carter. Dr. Defatta further testified regarding photographs taken during the autopsy. Specifically, he testified that photos depicting wounds on Carter's face were consistent with Carter falling and hitting his face on cement after being shot, and photographs of the gunshot wound indicated that Carter was shot from at least three feet away, with a right-to-left, angulated trajectory.
In Bullcoming , five justices found that a formal laboratory certificate identifying a defendant's blood alcohol level was testimonial and, therefore, not admissible without the testimony of the analyst who conducted the testing, because it was created for the purpose of aiding in a police investigation. The Court further held that the testimony of another analyst familiar with the procedures was not enough to establish admissibility. State v. Mullins, 2014-2260 (La. 1/27/16), 188 So.3d 164, 169-70.
Dr. Defatta explained that Louisiana recognizes the following as a manner of death: natural death, accidental death, suicide, homicide, and undetermined.
Defendant objected to the introduction of eleven autopsy photographs, arguing that they were inflammatory and more prejudicial than probative. While the trial court's ruling is not set forth in the transcript, it appears that the objection was sustained in part, as only six of the eleven photographs were admitted into evidence.
On appeal, defendant contends that the trial court erred in failing to establish Dr. Lee's unavailability and that Dr. Defatta's testimony exceeded the permissible scope of LSA-C.Cr.P. art. 105. While defendant concedes that Article 105 allows introduction of a coroner's report as competent, non-testimonial evidence of death and the cause thereof, defendant argues that Dr. Defatta's testimony as to the toxicology report, as well as his testimony interpreting photographs of Carter's wounds, was inadmissible.
In Russell, the second circuit considered the admissibility of an autopsy report where the author of the report was unavailable to testify. Noting that the information contained in the report was routine, descriptive, and non-analytical, the court found the report non-testimonial in nature. The court further noted that the report recounted where the victim was found, his cause of death, the location of the wounds, the injuries inflicted by each wound, whether the path of the bullets could be determined, and whether any bullet fragments were recovered. The report did not contain any conclusion or speculation with regard to events that transpired leading up to the victim's death. Russell, 966 So.2d at 165. Accordingly, where the defendant could not articulate any legitimate basis under governing law for his argument that his confrontation clause rights were violated by the mere introduction of the report, the second circuit found that the report was cumulative evidence of the victim's uncontroverted death and cause of death. Russell, 966 So.2d at 165-66.
In Leonard, the defendant argued that he shot and killed the victim in self-defense, and assigned error to a doctor testifying at trial from an autopsy report prepared by a different doctor. Noting that the autopsy report established only that the victim was shot three times and died almost instantly, this court found that the report and the doctor's testimony were merely cumulative and did not add to or detract from the factfinder's determination of why the defendant shot the victim. Leonard, 915 So.2d at 833-34. Leonard specifically stated that the coroner or a coroner's deputy may testify as to the victim's death or the cause thereof, even where the testifying witness did not perform the autopsy or prepare the report. Leonard, 915 So.2d at 833; see also State v. Ducre, 596 So.2d 1372, 1381 (La.App. 1 Cir. 1992).
In this matter, defendant argues that Leonard is distinguishable because it involved a case of self-defense wherein the defendant did not dispute his identity as the shooter. In the instant case, defendant denies shooting Carter and contends that unlike in Leonard, the coroner's report and the testimony thereto were not merely cumulative. Importantly, we note that both Russell and Leonard were decided prior to the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
In Melendez-Diaz, the United States Supreme Court considered whether sworn drug analysis certificates were testimonial in nature, thus rendering the certificates' affiants "witnesses" subject to the defendant's right of confrontation. Finding that the certificates were affidavits made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, the Court held that the lab certificates were testimonial in nature. Accordingly, absent a showing that the analysts were unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine them, the affidavits were not admissible in evidence against the defendant. Melendez-Diaz, 557 U.S. at 311,129 S.Ct. at 2532.
In the wake of Melendez-Diaz, several courts have considered whether the holding therein should extend to autopsy reports and thus require the in-court testimony of the report's author. By and large, those courts that have considered the question have answered in the negative.
In State v. Francis, 2012-1221 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, writ denied, 2013-1253 (La. 11/8/13), 125 So.3d 449, the third circuit found that an autopsy report was admissible absent the testimony of the individual who created the report. Relying in part on the United States Supreme Court's decision in Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221,183 L.Ed.2d 89 (2012), the third circuit held that "[t]he autopsy report had no bearing on the guilt vel non of Defendant. It simply identified the cause of death. No one disputed that the victim died from a gunshot fired by Defendant." Francis, 111 So.3d at 535.
The United States Supreme Court held in Williams that a DNA profile was admissible without the testimony of the individual who created the profile. The Court stated:
We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert's testimony did not violate the Sixth Amendment.Williams, 567 U.S. at 57-58, 132 S.Ct. at 2228.
In State v. Williams, 2019-0362 (La.App. 1 Cir. 2/26/20), 2020 WL 913674, *8 (unpublished), writ denied, 2020-00555 (La. 10/06/20), 302 So.3d 527, the defendant argued that his right to confrontation was violated where the autopsy report's author was unavailable and another doctor testified to the report's contents. A review of state and federal caselaw suggested to this court that the confrontation clause was not violated when one doctor testified to the autopsy report of another doctor. See Francis, 111 So.3d at 535; Russell, 966 So.2d at 165; Leonard, 915 So.2d at 833-34; Williams, 567 U.S. at 57-58, 132 S.Ct. at 2228; see also People v. Hall, 84 A.D.3d 79, 81-82, 923 N.Y.S.2d 428 (N.Y. Div. 1 Dept. 2011) (noting Melendez-Diaz did not explicitly hold that autopsy reports are testimonial); United States v. Feliz, 467 F.3d 227, 236-37 (2d Cir. 2006) (noting thousands of routine autopsies conducted every year without regard to the likelihood of their use at trial and concluding that autopsy reports are non-testimonial). However, this court specifically stopped short of making such a legal conclusion, finding instead that any error in having another doctor testify to the autopsy report was harmless beyond a reasonable doubt. Williams, 2020 WL 913674 at *9.
Upon re-examination of the question set forth in Williams, we now hold that a doctor's testimony to an autopsy report created by a different doctor does not violate the defendant's right to confrontation. Autopsy reports contain routine, descriptive, and non-analytical information. See Russell, 966 So.2d at 165. Unlike the sworn affidavits contemplated in Melendez-Diaz, autopsy reports are not testimonial in nature. See Williams, 567 U.S. at 97-98, 132 S.Ct. at 2251 (Breyer, J., concurring) ("Autopsies, like the DNA report in this case, are often conducted when it is not yet clear whether there is a particular suspect or whether the facts found in the autopsy will ultimately prove relevant in a criminal trial."). Accordingly, because autopsy reports are non-testimonial, they are not subject to the confrontation requirements set forth in Crawford. Therefore, the report's author is not a witness against the defendant whose presence at trial the confrontation clause compels.
We further find that the autopsy report in the instant case was properly admitted into evidence, and there was no error in allowing Dr. Defatta to testify to the autopsy report authored by Dr. Lee. The autopsy report was neither inherently inculpatory, nor was it prepared with the solemnity required of testamentary evidence. See Williams, 567 U.S. at 57-58, 132 S.Ct. at 2228 (Thomas, J., concurring). The report, and Dr. Defatta's testimony thereto, merely indicated that the cause of death was a gunshot wound to the head and that the manner of death was homicide. At trial, defendant did not contest that Carter died from a gunshot wound, he only contested the gunman's identity, a fact to which both the autopsy report and Dr. Defatta's testimony were silent. Moreover, because the confrontation clause is inapplicable to the non-testimonial autopsy report, the State was under no burden to prove that the report's author, Dr. Lee, was unavailable to testify.
We now turn to defendants final argument that Dr. Defatta's testimony went beyond the scope of the autopsy report with regard to the toxicology report and the photographs depicting Carter's injuries. An expert witness may testify based on information obtained from others and the character of evidence upon which the expert bases an opinion affects only the weight to be afforded the expert's conclusion. The expert witness testifying in court need not be the person who actually compiled the data. He or she may rely on data prepared by others. State v. Pooler, 96-1794 (La.App. 1 Cir. 5/9/97), 696 So.2d 22, 55, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288 (The trial court did not err in allowing witness to give her expert opinion about statistical information concerning DNA test results where such opinion was based on data prepared by others.).
Dr. Defatta was qualified as an expert in forensic pathology and was thus permitted to give his opinion regarding the autopsy performed, as well as the reports and information generated therefrom. The record does not indicate, nor does defendant suggest, that Dr. Defatta's testimony as to the toxicology report or the photographs was based on the conclusions or opinions of Dr. Lee. Rather, Dr. Defatta testified as to his professional opinion, based on his own independent review of the underlying information set forth in the toxicology report, autopsy report, and photographs. Accordingly, Dr. Defatta's testimony fell properly within the bounds of expert opinion testimony. See LSA-C.E. art. 702.
Furthermore, we note that defendant had the opportunity to, and in fact did, confront and cross-examine Dr. Defatta as to his opinion on these issues. Thus, this testimony presents no confrontation clause issue because Dr. Defatta was present and available for cross-examination at trial. See Crawford, 541 U.S. at 59 n.9,124 S.Ct. at 1369 n.9 C'[t]he [Confrontation] Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it."); State v. White, 2017-1256 (La.App. 1 Cir. 2/16/18), 243 So.3d 12, 15, writ denied, 2018-0379 (La. 1/14/19), 261 So.3d 763, cert denied, ___U.S.___, 140 S.Ct. 647, 205 L.Ed.2d 409 (2019).
These assignments of error are without merit.
PATENT ERROR
Under LSA-C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 2005-2514 (La.App, 1 Cir. 12/28/06), 952 So.2d 112, 123 (en band), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. After a careful review of the record, we have found patent error.
On count III, the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars. LSA-R.S. 14:95.1(B). Accordingly, defendant's sentence on count III, which did not include the mandatory fine, is illegally lenient. However, since the sentence is not inherently prejudicial to defendant, and neither the State nor defendant has raised this sentencing issue on appeal, we decline to correct this error. See State v. Loper, 2010-0582 (La.App. 1 Cir. 10/29/10), 48 So.3d 1263,1269; Price, 952 So.2d at 124-25.
CONCLUSION
Considering the above, we affirm the convictions and sentences of defendant, Larry West.
CONVICTIONS AND SENTENCES AFFIRMED.
MILLER, J., concurring in part.
I agree with the result reached by the majority. However, I write separately to address the defendant's right of confrontation as it relates to autopsy reports. I believe that we need not broadly state that a doctor's testimony concerning another doctor's autopsy report does not violate a defendant's Sixth Amendment right to confront his accuser. Here, even assuming, without deciding, that the admission of this "surrogate testimony" was an error, I believe that any such error in admitting the testimony was harmless beyond a reasonable doubt. See State v. Williams, 20190362 (La.App. 1st Cir. 2/26/20), writ denied, 2020-00555 (La. 10/6/20), 302 So.3d 527. However, insofar as the majority opinion pronounces a per se rule of admission, I believe this conclusion should be avoided.
The Sixth Amendment to the United States Constitution guarantees the right of the accused in a criminal prosecution to be confronted with the witnesses against him. The confrontation clause of the Louisiana Constitution also expressly guarantees the accused the right "to confront and cross-examine the witnesses against him." La. Const, art. I, § 16. Louisiana jurisprudence in this area has developed under the heavy influence of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny.
As to testimonial statements, Crawford established a firm rule of exclusion in the absence of confrontation. See Crawford, 541 U.S. at 61, 124 S.Ct. at 1370. Thus, defining "testimonial" has been the linchpin of the caselaw. In State v. Mullins, 2014-2260 (La. 1/27/16), 188 So.3d 164, 170, the Louisiana Supreme Court stated:
In sum, United States Supreme Court jurisprudence tells us that testimonial evidence includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. We also know that statements made for the primary purpose of seeking help during an ongoing emergency are not testimonial, [Davis v. Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 2277, 165 L.Ed.2d 224 (2006); Michigan v. Bryant, 562 U.S. 344,363-364,131 S.Ct. 1143, 1158,179 L.Ed.2d 93 (2011)], while statements made as part of an investigation into possible criminal past conduct with no emergency in progress are testimonial. Davis, 547 U.S. at 829, 126 S.Ct. at 2278. Testimonial statements include those "solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator." Davis, 547 U.S. at 826, 126 S.Ct. at 2276. When laboratory analysts' affidavits include testimonial statements, a defendant is entitled to confront the analysts themselves. [Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009)]. A document created solely for an "evidentiary purpose," made in aid of a police investigation, is testimonial. [Bullcoming v. New Mexico, 564 U.S. 647,664,131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011)].
Absent from this summary is any reference to autopsy reports, and the Louisiana Supreme Court does not appear to have addressed the issue. However, I am not convinced that the development of the law thus far necessarily predicts the outcome reached by the majority. For example, in Garlick v. Lee, 1 F. 4th 122, 136 (2d Cir. 2021), cert, denied, 142 S.Ct. 1189, 212 L.Ed.2d 54 (2022), after a lengthy review of the development of the law in this area, the court concluded that "the admission of the autopsy report at Garlick's trial through a surrogate witness was an unreasonable application of clearly established Supreme Court precedent."
Of particular concern is when the surrogate testimony reaches beyond that limited evidence of death and the cause thereof referenced in La. C.Cr.P. art. 105. While generally an autopsy report may be narrowly drawn and may not be accusatory nor identify a suspect, if the report contains facts gathered by law enforcement outside of the laboratory, it could serve to launder otherwise objectionable testimonial evidence.
Finally, I would hesitate to rely on the concurring opinions of Justice Breyer and Justice Thomas in Williams v. Illinois, 567 U.S. 50, 132, S.Ct. 2221,183 L.Ed.2d 89 (2012), as support for the majority opinion. This fractured opinion, dealing with the admission of a DNA report, did not have the support of a majority of the court and its various opinions have sown confusion in courts across the country. See Stuart v. Alabama, 139 S.Ct. 36, 202 L.Ed.2d 414 (2018), Gorsuch, J., dissenting. I see no reason to wade into this quagmire if we do not have to.