        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               December 17, 2013 Session

           STATE OF TENNESSEE v. THOMAS LEE HUTCHISON

                   Appeal from the Criminal Court for Knox County
                     No. 88264     Jon Kerry Blackwood, Judge


                  No. E2012-02671-CCA-R3-CD - Filed April 11, 2014


J OSEPH M. T IPTON, P.J., concurring in part and dissenting in part.

       I concur with the results and most of the reasoning in the majority opinion. I disagree,
though, with the majority’s conclusion that the Confrontation Clause was not implicated in
the admission of the autopsy report. I believe the admission of the report in this case violated
the Confrontation Clause but was harmless beyond a reasonable doubt.

       In State v. James Drew Freeman, Jr., No. M2011-00184-CCA-R3-CD (Tenn. Crim.
App. May 9, 2012), perm. app. denied (Tenn. Oct. 17, 2012), this court concluded that an
autopsy report introduced through a medical examiner who did not perform the victim’s
autopsy was testimonial evidence because the condition of the victim’s body when
discovered by the police clearly indicated “foul play” and because the defendant had already
been identified as the perpetrator by the time the autopsy was conducted. Slip op. at 15. This
court noted that the autopsy was conducted with the primary purpose of being used in a
criminal trial and as evidence against the defendant. Id., at slip op. 15-16 (citing United
States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011) (classifying autopsy reports as testimonial
evidence when the autopsy was requested by the police and evidence indicated that the
victim’s death was a homicide). This court concluded that the admission of the report
without presenting the testimony of the medical examiner who prepared the report violated
the defendant’s confrontation rights. Id., slip op. at 16. It also concluded that the error was
harmless because the defendant did not contest the finding of a homicide. Id.

       Following James Drew Freeman, Jr., this court addressed the Confrontation Clause
in an identical context in State v. Jessie Dotson, No. W2011-00815-CCA-R3-DD (Tenn.
Crim. App. June 25, 2013), which is currently pending before our supreme court. In Jessie
Dotson, this court concluded under a plain error analysis that the admission of the victims’
autopsy reports through the testimony of a medical examiner who did not perform the
autopsies did not violate the defendant’s confrontation rights. Slip op. at 77. There, although
the victims’ deaths were clearly homicides, the defendant was not identified as a suspect until
after the autopsies were performed. Id. The court concluded that the primary purpose of the
autopsies was not to “target the defendant as the perpetrator but instead to identify the
injuries sustained by the victims and their causes of death.” Id. I note that at the time of the
autopsies, the police had no suspects, and the defendant was placed in protective custody for
fear the killings were gang-related. Id., slip op. at 17. Although this court concluded that
the United States Supreme Court’s opinion in Williams v. Illinois, — U.S. —, 132 S. Ct.
2221 (2012), abrogated James Drew Freeman, Jr., I am not convinced that all cases in which
an autopsy report is admitted as evidence through the testimony of a medical examiner who
did not perform the autopsy would comply with the Confrontation Clause.

        In Williams v. Illinois, the relevant report was a DNA analysis conducted during a rape
investigation. The perpetrator was unidentified and remained at large, and the DNA analysis
was performed in an effort to identify the perpetrator. Williams, — U.S. —, —, 132 S. Ct.
at 2228. The defendant was not a suspect at the time of the analysis. Although the Court
concluded that the DNA report was not offered for the truth of the matter asserted, which
eliminated the confrontation issue, it also concluded that had the report been offered for its
truth, no confrontation issue would have existed. Id. at 2242. The Court concluded that the
report was not prepared for the primary purpose of accusing a “targeted individual” but rather
to “catch a dangerous rapist who was still at large, not to obtain evidence for use against the
petitioner, who was neither in custody nor under suspicion at that time.” Id. at 2243. The
Court noted that no one at the laboratory who conducted the analysis “could have possibly
known that the [DNA] profile it produced would turn out to inculpate the petitioner.” Id. at
2244. The Court said that under these circumstances, the only incentive was to produce a
scientifically sound and reliable DNA profile, which is the primary concern of the
Confrontation Clause. Id.

        Although not a definitive test for determining whether the Confrontation Clause has
been violated, the Supreme Court noted a general pattern in which all but one of the post-
Crawford cases in which the Confrontation Clause was violated had two characteristics: “(a)
they involved out-of-court statements having the primary purpose of accusing a targeted
individual of engaging in criminal conduct and (b) they involved formalized statements such
as affidavits, depositions, prior testimony, or confessions.” Id. (citing Bullcoming v. New
Mexico, 564 U.S. —, 131 S. Ct. 2705 (2011) (certified lab report having the purpose of
showing that the defendant’s blood alcohol concentration exceeded the legal limit);
Melendez-Diaz v. Massachuttes, 557 U.S. 305 (2009) (certified lab report having the purpose
of showing that the substance connected to the defendant contained cocaine)). The exception
was Hammon v. Indiana, 547 U.S. 813, 829-32 (2006). The court noted, though, that in
Hammon the statements involved a past offense in which the victim identified the defendant
as the perpetrator and described the defendant’s conduct during a domestic dispute. Id. In

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Hammon, the incident had ended when the police arrived and did not involve an ongoing
emergency, resulting in a violation of the Confrontation Clause. Id. at 819; see Williams, 547
U.S. at 2242.

        I do not believe that all circumstances involving testing should require a known
suspect before the Confrontation Clause is implicated. For the purpose of this case, though,
I believe that the Confrontation Clause was implicated when the autopsy report was admitted
through the testimony of a medical examiner who did not perform the autopsy. In the present
case, when the victim’s body was found by the police, his pants were pulled down, he was
lying face down on the floor, and blood spatter surrounded him. Items in the room where the
victim was found appeared to have been moved after the killing. Likewise, the victim clearly
suffered blunt force trauma from the crowbar and knife found at the scene. At the time the
victim was discovered by the police, the evidence indicated that the victim’s death was not
of natural causes. Likewise, the record shows that before the victim’s autopsy commenced,
the Defendant was the identified perpetrator involved in the victim’s killing. Mr. Mitchell
testified at length about Ms. Cox’s telling him that the Defendant had stabbed the victim, his
finding the victim wrapped in a blanket with a crowbar lying on top of him, and his seeing
the victim “had no brains in his head.” Mr. Mitchell said that the Defendant attempted to run
and that the Defendant said he “didn’t do it” by himself when asked why he killed the victim.
All this information was conveyed to the police.

        These facts comply with the general pattern noted by the Supreme Court in which the
Confrontation Clause has been violated. The victim’s death was a homicide, and the
Defendant was the identified suspect before the autopsy commenced. Thus, I conclude that
the autopsy in this case was conducted with the primary purpose of being used in a criminal
trial and used as evidence against the Defendant, thereby implicating the Confrontation
Clause.

       Although I conclude that the admission of the autopsy report violated the
Confrontation Clause, I also conclude that the error was harmless. Dr. Mileusnic-Polchan’s
analysis and conclusions were based on other evidence not affecting the Defendant’s
confrontation rights. The doctor reviewed photographs taken during the autopsy to make
conclusions regarding the victim’s cause of death, which she said “demonstrated how the
crowbar found at the scene matched the injury pattern.” She, likewise, testified regarding
the stab wounds and noted the “knife blade remained in the stab wound on the victim’s left




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side.” As a result, the error was harmless beyond a reasonable doubt, and the Defendant is
not entitled to relief.




                                             ____________________________________
                                             JOSEPH M. TIPTON, PRESIDING JUDGE




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