        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 15, 2014 Session

        STATE OF TENNESSEE v. JAMES MURRAY WASHINGTON

              Direct Appeal from the Criminal Court for Davidson County
                      No. 2009-C-2638     Monte Watkins, Judge


                 No. M2013-00831-CCA-R3-CD - Filed March 31, 2015


T HOMAS T. W OODALL, J., concurring.

        I join in the majority opinion except that portion which concerns the appellant’s
challenge that his constitutional right to confront a witness was denied by admission into
evidence of the autopsy report prepared by Dr. Ann L. Bucholtz, M.D. The appellant was
entitled to cross-examine Dr. Bucholtz prior to admission of the autopsy report. Therefore,
I conclude it was error to admit the autopsy report itself into evidence as an exhibit.
However, my conclusion does not extend to bar the use of Dr. Bucholtz’s autopsy report by
the testifying physician to form his own expert opinion.

        To me, it defies logic to conclude that an autopsy report such as the one in this case
is not testimonial, as that term is defined in Davis v. Washington, 547 U.S. 813 (2006) as
follows:

         [statements] are testimonial when the circumstances objectively indicate
         that there is no such ongoing emergency, and that the primary purpose of
         the interrogation is to establish or prove past events potentially relevant to
         later criminal prosecution.

Id. at 822.

       In this case, the written autopsy report allowed into evidence contains in part the
following language:

         MANNER OF DEATH: HOMICIDE

         CAUSE OF DEATH: BLUNT FORCE TRAUMA WITH STAB
         WOUNDS
        PATHOLOGIC DIAGNOSIS:

                Blunt force trauma with stab wounds:

                1.     Blunt force trauma of head:

                       A.      Skull fractures, multiple.
                       B.      Subarachnoid and subdural hemorrhages.
                       C.      Contusion of brain.

                2.     Stab wounds of left neck:

                       A.      Lacerations of left jugular vein, right
                               vertebral artery and trachea.
                       B.      Hemorrhage of neck.

        Directly above Dr. Bucholtz’s signature on the report is typed information including
the following:

              The purpose of this report is to provide a certified opinion to the
        County Medical Examiner and the District Attorney General. (emphasis
        added).

        Obviously the information was provided to the District Attorney General to “establish
or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at
822. The autopsy report was testimonial, and should not have been admitted into evidence
if a proper objection had been made. No objection was made. However, I conclude that the
appellant is not entitled to relief pursuant to “plain error” because he has failed to show that
consideration of the error is necessary in order to do substantial justice. See State v.
Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). As noted by the majority
opinion, the primary issue at the appellant’s trial was the identity of the appellant as the
perpetrator. Any error in violating the appellant’s constitutional right to confront witnesses
was harmless beyond a reasonable doubt.


                                            _______________________________________
                                            THOMAS T. WOODALL, PRESIDING JUDGE




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