MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2014 ME 28
Docket:   Som-13-24
Argued:   January 14, 2014
Decided:  February 25, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
             JJ.



                                STATE OF MAINE

                                         v.

                                JAY S. MERCIER

GORMAN, J.

         [¶1] Jay S. Mercier challenges the court’s (Nivison J.) 2012 entry of a

judgment of conviction for a murder, 17-A M.R.S. § 201(1)(A) (2013), that

occurred in 1980. Mercier argues that his right to confront witnesses was violated

by the court’s admission of medical examiner testimony based in part on an

autopsy report created by a different medical examiner who did not testify at trial.

Mercier also contends that the court erred in admitting certain evidence at trial and

in failing to fashion a sua sponte remedy for statements made by the prosecutor in

closing argument. We affirm the judgment.

                                I. BACKGROUND

         [¶2] Viewing the evidence in the light most favorable to the State, the

following facts were established beyond a reasonable doubt at trial. See State v.

Cook, 2010 ME 85, ¶¶ 2, 7, 2 A.3d 333. On the morning of July 5, 1980, the body
2

of twenty-year-old Rita St. Peter was discovered on Campground Road in Anson.

The condition of St. Peter’s body immediately indicated that her death was caused

by physical injury, and the medical examiner was called to the scene by the first

responding law enforcement officers. Local and state police officers investigated

St. Peter’s death as a homicide throughout 1980, but St. Peter’s murder remained

unsolved. In 2005, Maine State Police Detective Bryant Jacques and Maine State

Police Crime Lab forensic analyst Alicia Wilcox began their investigation of this

“cold case.”

      [¶3] When DNA was extracted in 2009 from sperm cells found in biological

evidence taken in 1980 from the victim’s body, Jacques established contact with

Mercier—who had been a suspect in 1980—through a series of casual

conversations at Mercier’s home.        In January of 2010, after one of these

conversations, Jacques collected a cigarette butt that Mercier had discarded on the

side of the road. The DNA obtained from Mercier’s cigarette butt matched that

found on the victim’s body. Tire impressions taken from the scene in 1980 also

were consistent with the unusual tires Mercier had on his vehicle at the time.

      [¶4] On September 16, 2011, Mercier was charged by indictment with the

intentional or knowing murder, 17-A M.R.S. § 201(1)(A), or depraved indifference

murder, 17-A M.R.S. § 201(1)(B) (2013), of Rita St. Peter. Mercier pleaded not
                                                                                  3

guilty. The court denied Mercier’s motions to suppress evidence obtained from a

search of his vehicle and to suppress statements he made to police.

      [¶5] Mercier later moved in limine to exclude from trial the testimony of

Dr. Margaret Greenwald, the State’s chief medical examiner. Dr. Greenwald had

not performed the autopsy on the victim or drafted the autopsy report. Mercier

argued that to allow Dr. Greenwald to testify about the victim’s injuries or express

her opinion about the victim’s cause of death would violate his right to confront

the medical examiner who had completed the autopsy and authored the autopsy

report. After a hearing, the court concluded that the Confrontation Clause did not

prohibit Dr. Greenwald from testifying, even if that testimony was based, in part,

on facts gleaned from the autopsy report. The court did order, however, that

Dr. Greenwald was “foreclosed from disclosing any of the details of the factual

findings in the autopsy report.”

      [¶6] The court conducted a six-day jury trial beginning on September 20,

2012, during which Dr. Greenwald testified. The State did not seek to introduce

the autopsy report itself. After deliberating for less than two hours, the jury

returned a verdict finding Mercier guilty of intentional or knowing murder. The
4

court entered a judgment on the verdict and sentenced Mercier to seventy years in

prison. Mercier appeals.1

                                         II. DISCUSSION

        [¶7]      The Confrontation Clause guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. amend. VI. It is applied to the states through

the Fourteenth Amendment. State v. Ducasse, 2010 ME 117, ¶ 9, 8 A.3d 1252.

The United States Supreme Court has interpreted the Confrontation Clause to

provide that testimonial evidence by a declarant who is not testifying may be

admitted at trial only if the declarant is unavailable and the defendant had a prior

opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36,

59 (2004).       The Court declined to define all of the aspects of “testimonial”

evidence, but did note that it is “typically a solemn declaration or affirmation made

for the purpose of establishing or proving some fact,” and would at least apply to

“prior testimony at a preliminary hearing, before a grand jury, or at a former trial[,]

and to police interrogations.” Id. at 51-53, 68 (alteration omitted) (quotation marks

omitted). Thus, the Supreme Court held, the admission of the defendant’s wife’s

recorded statement to police, taken during an investigation into alleged criminal

    1
     Mercier does not challenge the denial of his motion for a new trial or the sufficiency of the evidence
supporting his conviction, but we note that the record contains evidence on which a reasonable fact-finder
could find that the State proved each element of murder beyond a reasonable doubt. See 17-A M.R.S.
§ 201(1)(A) (2013). Further, Mercier has abandoned the sentence review application he earlier submitted.
See 15 M.R.S. § 2151 (2013); M.R. App. P. 20.
                                                                                     5

acts committed by her husband, violated the Confrontation Clause where there was

no indication that the defendant had had any opportunity to cross-examine her. Id.

at 40, 68-69.

      [¶8] In Melendez-Diaz v. Massachusetts, the Supreme Court refined its

application of the Confrontation Clause to written documents.          557 U.S. 305,

309-29 (2009). It held that, for purposes of the Confrontation Clause, a sworn

certificate stating that illegal drugs comprised the contents of plastic bags seized by

police during a criminal drug investigation was admissible only if the declarant

who created those documents also testified. Id. at 308, 311. The Court concluded

that such a document was testimonial in nature given that it was “incontrovertibly a

solemn declaration or affirmation made for the purpose of establishing or proving

some fact,” and that not only was the document “made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial,” but also, pursuant to state law, its “sole purpose

. . . was to provide prima facie evidence of the composition, quality, and the net

weight of the analyzed substance.” Id. at 310-311 (quotation marks omitted).

      [¶9]      On Confrontation Clause grounds, Mercier challenges the court’s

admission of Dr. Greenwald’s testimony opining as to St. Peter’s injuries and

cause of death.        He contends that because, in forming those opinions,

Dr. Greenwald relied in part on an autopsy report written by another medical
6

examiner, and because the authoring medical examiner was not a witness at the

trial, Mercier’s right to confront the author of the autopsy report was violated. We

review de novo the impact of the admission of testimony on the constitutional right

to confront witnesses. State v. Mitchell, 2010 ME 73, ¶¶ 40-41, 4 A.3d 478.

       [¶10] We squarely addressed this issue just four years ago in Mitchell, in

which the medical examiner who had performed the victim’s autopsy had retired

and moved to another country by the time of trial. Id. ¶ 18. At trial, a different

medical examiner testified that she had reviewed the autopsy report and related

materials, and then gave her own opinion as to the cause of death. Id. ¶ 20. We

sanctioned this process, holding that the admission of a medical examiner’s

testimony as to injuries and cause of death, even when that testimony was based in

part on an autopsy completed and an autopsy report written by a different medical

examiner, did not violate the Confrontation Clause. Id. ¶¶ 20, 47. In doing so, we

noted that the matter was distinguishable from those in which the admissibility of

the autopsy report itself was at issue because the State had instead offered the

expert testimony of a live witness who was available for cross-examination.

Id. ¶ 47.

       [¶11]   Mercier argues, however, that our decision in Mitchell is

compromised by the United States Supreme Court’s decision in Bullcoming v. New

Mexico, 131 S. Ct. 2705 (2011). In Bullcoming, the Supreme Court evaluated the
                                                                                    7

admission of a lab analyst’s certificate stating the defendant’s blood alcohol level

when the analyst who performed the test did not appear at trial but another analyst

from the same lab did appear and testify as to the contents of the certificate. Id. at

2709-12. Consistent with its holdings in Crawford and Melendez-Diaz, the Court

held that such evidence was testimonial, and that its admission therefore violated

the Confrontation Clause unless it was established that the certifying analyst was

unavailable and the defendant otherwise had an opportunity to cross-examine him.

Id. at 2710.

       [¶12] The decision in Bullcoming gives us no reason to reconsider our

holding in Mitchell. In Bullcoming, as in Melendez-Diaz, the government sought

the admission of a document purporting to show the results of various lab tests

without introducing the testimony of the person who performed those tests, and

without establishing the declarant’s unavailability for trial or the defendant’s prior

opportunity to cross-examine the declarant. Bullcoming, 131 S. Ct. at 2710-12;

Melendez-Diaz, 557 U.S. at 308-09, 311.         In Mitchell, in contrast, only the

admissibility of a witness’s live testimony was at issue; the medical examiner

testified as to her own evaluation of the matter and the defendant was free to

cross-examine her about the basis for that evaluation. 2010 ME 73, ¶ 47, 4 A.3d

478.
8

      [¶13] The Supreme Court’s decision in Williams v. Illinois, 132 S. Ct. 2221

(2012), decided after Bullcoming, also aligns with our analysis in Mitchell. In

Williams, the prosecution’s expert witness testified at trial that she obtained from

an outside laboratory a DNA profile—which other evidence established came from

a sample taken off of the victim’s body—that she then matched to the defendant’s

DNA profile. Id. at 2227. The Supreme Court held that the expert’s testimony

was admissible because she was not purporting to testify that the sample analyzed

by the outside lab had in fact come from the victim, but was instead merely

testifying that the DNA profile obtained from the lab matched that of the

defendant. Id. at 2228, 2236-41. The Court reasoned that an expert witness may

testify as to her own opinion and the facts on which that opinion is based “without

testifying to the truth of those facts.” Id. at 2228; accord M.R. Evid. 703.

      [¶14] In sum, our reasoning in Mitchell, bolstered by the Supreme Court’s

decision in Williams, holds true—the admission of the testimony of a medical

examiner who relies in part on information obtained as a result of an autopsy or

contained in an autopsy report completed by a non-testifying medical examiner is

not a violation of the Confrontation Clause.

      [¶15] We decline to disturb Mercier’s conviction on Confrontation Clause

grounds, and we conclude that Mercier’s remaining contentions also are not

persuasive.
                                                                           9

        The entry is:

                            Judgment affirmed.

______________________________________

On the briefs:

        Hunter J. Tzovarras, Esq., Bangor, for appellant Jay S. Mercier

        Janet T. Mills, Attorney General, Lara M. Nomani, Asst. Atty.
        Gen., Office of Attorney General, Augusta, for appellee State of
        Maine


At oral argument:

        Hunter J. Tzovarras, Esq., for appellant Jay S. Mercier

        Lara M. Nomani, Asst. Atty. Gen., for appellee State of Maine



Somerset County Superior Court docket number CR-2011-318
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