FOR PUBLICATION


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                               GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 ELLEN H. MEILAENDER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                                                                         Jun 18 2014, 9:41 am
                             IN THE
                   COURT OF APPEALS OF INDIANA

MICHAEL TORRES,                                  )
                                                 )
      Appellant-Defendant,                       )
                                                 )
             vs.                                 )      No. 49A02-1308-CR-727
                                                 )
STATE OF INDIANA,                                )
                                                 )
      Appellee-Plaintiff.                        )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Grant Hawkins, Judge
                          Cause No. 49G05-1201-MR-5766


                                       June 18, 2014

                             OPINION - FOR PUBLICATION

MAY, Judge
          Michael Torres was convicted, after a jury trial, of murder1, and Class A misdemeanor,

carrying a handgun without a license.2 He argues his right to confront witnesses against him

was violated. We affirm.

                             FACTS AND PROCEDURAL HISTORY

          Torres had dated Tia Brady, who in December 2011 was living with Darnall Lindsay

(“DJ”) in an apartment in Marion County. On December 19, 2011, Torres went to that

apartment and knocked on the door. Brady looked through the peephole and saw Torres

wearing a red hat and holding a gun pointed at the floor. Torres told her to open the door or

he would shoot through it. Brady called 911.

          DJ arrived home and saw people outside the apartment. Destiny Armstrong saw a

person on the sidewalk wearing a red hat and holding a black gun in his outstretched arm.

Richard Morales, who was with Armstrong, heard three gunshots and saw two black men

slowly backing away from the apartment. Morales and Armstrong flagged down a police

officer and took him to the apartment.

          While Brady was on the phone with 911, she heard scuffling outside the door followed

by gunshots. DJ told her to open the door and said he had been shot. She opened the door

and DJ fell to the floor, holding a black 9 mm pistol. When police arrived, DJ was lying in

the doorway, with a hole in his abdomen and blood on his legs. Brady told the police Torres

had been involved, and officers recovered a red hat, four spent 9 mm casings, and two spent


1
    Ind. Code § 35-42-1-1.

2
    Ind. Code § 35-47-2-1.
                                                2
bullets from the scene. The spent casings and bullets were all fired from the gun police

recovered.

       DJ was taken to the hospital where he died of his wounds. He had suffered gunshot

wounds to his right thigh, left arm, and the fatal shot to his abdomen. Dr. John Cavanaugh

performed an autopsy. By July 2013, when the trial was held, Dr. Cavanaugh had left

Marion County. At trial, the State called Dr. Joye Carter, the chief forensic pathologist at the

Marion County Coroner’s Office, as an expert witness. She testified that she had reviewed

the records, including photographs, from DJ’s autopsy, and she testified about the cause and

manner of DJ’s death. Torres did not object to Dr. Carter’s testimony, and Dr. Cavanaugh’s

report was not admitted into evidence.

       The jury found Torres guilty as charged.

                             DISCUSSION AND DECISION

       The Confrontation Clause of the Sixth Amendment to the United States Constitution

provides a criminal defendant has the right “to be confronted with the witnesses against

him.” U.S. Const., amend. VI. In 2004, the United States Supreme Court held “testimonial

hearsay” may not be admitted against a criminal defendant absent a showing that the witness

who made the hearsay statements is unavailable for trial and that the defense had a prior

opportunity to cross examine that witness. Crawford v. Washington, 541 U.S. 36, 59 (2004).

Thereafter, the Supreme Court extended that holding to certain situations involving lab

reports. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009).



                                               3
       Finally, in 2011, the Supreme Court held:

       The question presented is whether the Confrontation Clause permits the
       prosecution to introduce a forensic laboratory report containing a testimonial
       certification – made for the purpose of proving a particular fact – through the
       in-court testimony of a scientist who did not sign the certification or perform
       or observe the test reported in the certification. We hold that surrogate
       testimony of that order does not meet the constitutional requirement. The
       accused’s right is to be confronted with the analyst who made the certification,
       unless that analyst is unavailable at trial, and the accused had the opportunity,
       pretrial, to cross-examine that particular scientist.

Bullcoming v. New Mexico, __ U.S. __, 131 S. Ct. 2705, 2710 (2011).

       Torres has waived this claim as to Dr. Carter’s testimony because he did not object at

trial. See Small v. State, 736 N.E.2d 742, 747 (Ind. 2000) (Small waived confrontation issue

where his trial objection was based solely on argument that testimony was hearsay). Torres

therefore argues allowing Dr. Carter’s testimony was fundamental error. An exception to the

doctrine of waiver arises when errors are so blatant and serious that to ignore them would

constitute a denial of fundamental due process, i.e., fundamental error. Madden v. State, 656

N.E.2d 524, 526 (Ind. Ct. App. 1995), trans. denied.

       The fundamental error doctrine permits us to consider the merits of an improperly

raised error if the error was so prejudicial to the rights of the appellant that he could not have

had a fair trial. Id. To be “fundamental,” error must be “a clearly blatant violation of basic

and elementary principles, and the harm or potential for harm therefrom must be substantial

and apparent.” James v. State, 613 N.E.2d 15, 25 (Ind. 1993). This means that irremediable

prejudice to a defendant’s fundamental right to a fair trial must be immediately apparent in

the disputed evidence or argument. Allen v. State, 686 N.E.2d 760, 775 n.3 (Ind. 1997),

                                                4
reh’g denied, cert. denied sub nom Allen v. Indiana, 525 U.S. 1073 (1999).

       Torres argues the trial court violated his right to confrontation and committed

fundamental error when it permitted Dr. Carter to testify about the results of the victim’s

autopsy when she did not perform the autopsy. We do not find fundamental error in the

admission of Dr. Carter’s testimony. Dr. Carter was asked whether she had an occasion to

“look at and examine the autopsy of a Darnell Lindsay, autopsy #12-0024?” (Tr. at 315.)

But there is no reference to exactly what was included in that autopsy. Nor was any specific

reference made to Dr. Cavanaugh’s report. When questioned about the number of times the

victim had been shot, Dr. Carter referred to “the investigation” and “the doctor’s report,” (id.

at 326), but it is not apparent from her testimony to which documents she was referring. We

therefore cannot conclude that the “investigation” or “report” to which she was referring was

Dr. Cavanaugh’s report, or that her testimony otherwise invoked Torres’ right to confront a

witness.

       Torres next argues there was fundamental error because he could not cross-examine

Dr. Cavanaugh “on evidence critical to his claim of self-defense.” (Br. of Appellant at 7.)

Specifically, he points to the State’s argument at trial that the number of gunshot wounds the

victim sustained showed there was no struggle and Torres’ use of force was unreasonable.

       Any error in admitting Dr. Carter’s testimony on that matter was harmless. Other

witnesses testified about the number and location of bullets recovered from the scene, and

about the number of gunshots they heard. Those witnesses were subject to Torres’ cross-

examination.

                                               5
       In light of the fact her testimony was cumulative of testimony provided by other

witnesses, the admission of Dr. Carter’s testimony was not fundamental error.         See

Hendrickson v. State, 163 Ind. App. 580, 582, 325 N.E.2d 499, 500 (1975) (introduction of

otherwise inadmissible evidence that is merely cumulative and not decisive of guilt is not

prejudicial error).

       Affirmed.

BAILEY, J., concurs.

KIRSCH, J., dissents with separate opinion.




                                              6
________________________________________________________________________

                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL TORRES,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )       No. 49A02-1308-CR-727
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


KIRSCH, Judge, dissenting.

       In Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 2710 (2011), the United

States Supreme Court held that with respect to autopsy reports, the “[t]he accused’s right is to

be confronted with the analyst who makes the certification” and that “surrogate testimony”

does not satisfy the constitutional requirement. Here, the only testimony to the cause and

manner of death was the surrogate testimony of Dr. Joyce Carter who rendered her opinions

based solely upon the autopsy report and autopsy photographs done by another pathologist.

       The admission of this testimony violated the constitutional confrontation rights of the

accused. Moreover, on the conflicting facts and inferences presented by the record before us,

I cannot conclude that the error was harmless beyond a reasonable doubt.

       I respectfully dissent and would reverse the conviction and remand for a new trial.

                                               7
