                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
UNITED STATES OF AMERICA                  )
                                          )
      v.                                  )                 Criminal No. 09-0026 (PLF)
                                          )
RICO RODRIGUS WILLIAMS,                   )
                                          )
            Defendant.                    )
__________________________________________)



                          MEMORANDUM OPINION AND ORDER

               This matter is before the Court on defendant’s motion to exclude “any testimony

of Dr. Terril Tops bearing on” the autopsy of Sergeant Juwan Johnson, the alleged victim in this

case. Defendant’s Motion in Limine to Exclude Evidence (“Mot.”) at 1. As explained below,

the Court will grant the motion in part and deny it in part, prohibiting the government from

introducing the autopsy report in evidence or asking Dr. Tops to summarize its contents, but

permitting him to testify regarding any independent opinions he has formed based on the report

and other evidence upon which he may reasonably rely.


                                        I. DISCUSSION

               The indictment in this case alleges that the defendant, Rico Williams, along with

other individuals, committed murder by beating Sergeant Juwan Johnson to death on July 3,

2005. Indictment ¶ 5. On July 6, 2005, Dr. Kathleen M. Ingwersen, an Armed Forces Regional

Medical Examiner, performed an autopsy on the body of Sgt. Johnson. See Government’s

Opposition to Defendant’s Motions in Limine (“Opp.”), Ex. A (Final Autopsy Report) (“Report”)
at 2. Dr. Ingwersen prepared a written report in which she described the physical condition of

Sgt. Johnson’s body and internal organs, analyzed the appearance of slices of tissue viewed

through a microscope, and relayed the results of toxicology and blood tests. See id. at 4-8. Her

conclusions were summarized as follows:

               Based on these autopsy findings and the investigative and historical
               information available to me[,] the cause of death of this 25 year old
               male, Juwan Johnson, is multiple blunt force injuries reportedly
               sustained in a physical assault resulting in fatal injury to the heart
               and brain. Neuropathology findings show the brain injury to have
               occurred approximately 1-3 days [sic]. This is consistent with the
               reported assault 24 hours prior to death. The manner of death, in
               my opinion, is homicide.

Id. at 2. Dr. Ingwersen also signed Sgt. Johnson’s death certificate. See Opp., Ex. B (Certificate

of Death). In a section of the certificate entitled “Mode of Death,” Dr. Ingwersen checked the

box for “Homicide.” See id.

               Since performing the autopsy on Sgt. Johnson, Dr. Ingwersen has retired from the

military and moved overseas. See Opp. at 2. As a result, she is not available to testify at trial.

Id. at 3. Although Dr. Ingwersen will not testify, the government seeks to place the contents of

her autopsy report and the death certificate into evidence by two means: (1) by “introduc[ing] the

autopsy report, a diagram created during the autopsy process depicting hemorrhage, photographs

taken during the autopsy procedure, photos of microscopic slides depicting hemorrhage and

injury at the cellular level, and Sergeant Johnson’s certificate of death into evidence”; and (2) by

“introduc[ing] medical testimony from Dr. [Terril] Tops,” a medical examiner who was not

present at the autopsy of Sgt. Johnson’s body but who, according to the government, can testify

“regarding the types of injuries that Sergeant Johnson had all over his body, the placement of the



                                                  2
injuries, the possible causes of the injuries, the medical effects of the injuries, and his opinions

regarding the cause and manner of Sergeant Johnson’s death.” Id. The defendant objects that the

introduction of the autopsy report, the death certificate, and any testimony by Dr. Tops regarding

the contents of those documents would violate his rights under the Confrontation Clause of the

Sixth Amendment to the United States Constitution.


                                          II. DISCUSSION

               The Sixth Amendment confers upon the defendant in a criminal prosecution “the

right . . . to be confronted with the witnesses against him.” U.S. CONST . amend. VI. “A

witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or,

if the witness is unavailable, the defendant had a prior opportunity for cross-examination.”

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009); see also Crawford v.

Washington, 541 U.S. 36, 53-54 (2004). A declarant is a “witness” within the meaning of the

Sixth Amendment if she “bear[s] testimony” against the defendant — that is, if she makes

statements that are “testimonial.” Crawford v. Washington, 541 U.S. at 51. As defined by the

Supreme Court in Crawford, a “testimonial” statement is one that was “made under

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

would be available for use at a later trial.” Id. at 52. The Supreme Court has held that statements

made by scientific analysts — as opposed to eyewitnesses, for example — receive no special

treatment under the Confrontation Clause; if a statement by a lab technician or forensic analyst

qualifies as testimonial, then it may be admitted against a criminal defendant only if the declarant




                                                  3
testifies at trial or is unavailable and has been cross-examined by the defendant’s counsel in the

past. See Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2534-37.

               The autopsy report and death certificate that the government seeks to introduce in

evidence in this matter fit squarely within the definition of testimonial statements. While it may

be the case, as the government argues, see Opp. at 10-11, that Dr. Ingwersen did not perform an

autopsy on Sgt. Johnson’s body solely to gather evidence for use in a future prosecution, there

can be no doubt, based on the record before the Court, that she was aware that her report “would

be available for use at a later trial.” Crawford v. Washington, 541 U.S. at 52. As a military

medical examiner, Dr. Ingwersen was empowered by statute to “conduct a forensic pathology

investigation to determine the cause or manner of death” in certain cases in which “it appear[ed]

that the decedent was killed or that, whatever the cause of the decedent’s death, the cause was

unnatural.” 10 U.S.C. § 1471(b)(2)(A). When Dr. Ingwersen prepared her autopsy report, she

was aware that Sgt. Johnson had been “found unresponsive in his barracks room” and that he had

“reportedly” been the victim of “a physical assault.” Report at 1-2. A simple visual inspection

revealed that the body was covered in cuts and bruises. See id. at 6-7. The autopsy itself was

attended by two special agents from the United States Army Criminal Investigation Command.

Id. at 3. It could not have escaped Dr. Ingwersen’s notice that her findings regarding the

condition of the decedent’s body and the cause of his death would likely be used in a criminal

homicide investigation and at any resulting judicial proceeding.

               Furthermore, the autopsy report and death certificate prepared by Dr. Ingwersen

are marked by a formality characteristic of documents to be introduced in court. See Melendez-

Diaz v. Massachusetts, 129 S. Ct. at 2543 (Thomas, J., concurring) (opining that “the


                                                 4
Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained

in formalized testimonial materials, such as affidavits, depositions, prior testimony, or

confessions” (citation and internal quotation marks omitted)). The autopsy report specifies the

source of legal authority for Dr. Ingwersen’s forensic examination, the “investigative agency”

involved with the case, and the dates and locations relevant to Sgt. Johnson’s death. See Report

at 1. It is twice signed by Dr. Ingwersen, with her signature appearing above her title, Armed

Forces Regional Medical Examiner. The death certificate is a standard form, its headings typed

in both English and French, in which a pathologist may record a decedent’s name, Social

Security number, next of kin, and cause of death, among other details. It too is signed by Dr.

Ingwersen, under a declaration stating, “I have viewed the remains of the deceased and death

occurred at the time indicated and from the causes stated above.” Opp., Ex. B. Both the report

and the certificate thus bear the hallmarks of official documents, making “solemn declaration[s]

or affirmation[s] . . . for the purpose of establishing or proving some fact.” Melendez-Diaz v.

Massachusetts, 129 S. Ct. at 2532. Thus, the report and death certificate contain testimonial

statements that may not be admitted in evidence unless the defendant has the opportunity to

cross-examine Dr. Ingwersen at trial, or has had that opportunity in the past.1

               The government attempts to avoid this conclusion by arguing that both documents

are merely “records kept in the regular course of business.” Opp. at 6. Such business records

generally are exempt from the bar to admission of hearsay imposed by the Federal Rules of


       1
                The government has not submitted as an exhibit for the Court’s inspection the
“diagram created during the autopsy process” that it also seeks to introduce in evidence. Opp. at
3. If that diagram was prepared by Dr. Ingwersen as part of the same process that yielded the
autopsy report and death certificate, then it too will be excluded from evidence, for the same
reasons that the report and certificate must be excluded.

                                                 5
Evidence. See Fed. R. Evid. 803(6). But even assuming that the autopsy report and death

certificate qualify as business records within the meaning of the Federal Rules, the Supreme

Court made clear in Melendez-Diaz that a document’s status as a business record under the

Federal Rules has little import for a Confrontation Clause analysis. “Business and public records

are generally admissible absent confrontation not because they qualify under an exception to the

hearsay rules, but because — having been created for the administration of an entity’s affairs and

not for the purpose of establishing or proving some fact at trial — they are not testimonial.”

Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2539-40. If a business record is testimonial,

however — that is, if it has been prepared at least in part for “the purpose of establishing or

proving some fact at trial” — then the record is not admissible unless the defendant has the

opportunity to confront the declarant. Id. at 2540.

               As the Court already has determined, the documents in question were in fact

produced at least in part for possible use in a criminal prosecution or the military equivalent.

Whether the documents also qualify as business records under the hearsay rules therefore is

irrelevant. This is true notwithstanding the cases cited by the government — most or all decided

before the release of the Supreme Court’s decision in Melendez-Diaz — for the proposition that

“‘business records are expressly excluded from the reach of Crawford.’” Opp. at 7 (quoting

United States v. De la Cruz, 514 F.3d 121, 133 (1st Cir. 2008)); see also Opp. at 7-8 (“‘[A]

statement properly admitted under Fed. R. Evid. 803(6) cannot be testimonial because a business

record is fundamentally inconsistent with what the Supreme Court has suggested comprise the

defining characteristics of testimonial evidence.’” (quoting United States v. Feliz, 467 F.3d 227,




                                                  6
233-34 (2d Cir. 2006)). The Supreme Court in Melendez-Diaz decisively rejected that argument,

and the Court therefore can accord it no weight.2

               Because the statements contained in the autopsy report and the death certificate

are testimonial within the meaning of that term established by Crawford and Melendez-Diaz,

neither document will be admitted in evidence unless Dr. Ingwersen testifies. Nor will the

government be permitted to make “an end run around Crawford” and Melendez-Diaz by placing

Dr. Tops on the stand to repeat or summarize statements made in either of those documents.

United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (warning that a witness may not be

“used as little more than a conduit or transmitter for testimonial hearsay”).

               Having recognized those limits on the scope of Dr. Tops’ testimony, the Court is

also mindful that “while the Supreme Court in Crawford [and Melendez-Diaz] altered

Confrontation Clause precedent, it said nothing about the Clause’s relation to Federal Rule of

Evidence 703.” United States v. Henry, 472 F.3d 910, 914 (D.C. Cir. 2007); see also United

States v. Law, 528 F.3d 888, 900 (D.C. Cir. 2008). That Rule provides:

               The facts or data in the particular case upon which an expert bases
               an opinion or inference may be those perceived by or made known
               to the expert at or before the hearing. If of a type reasonably relied
               upon by experts in the particular field in forming opinions or
               inferences upon the subject, the facts or data need not be
               admissible in evidence in order for the opinion or inference to be
               admitted. Facts or data that are otherwise inadmissible shall not be
               disclosed to the jury by the proponent of the opinion or inference
               unless the court determines that their probative value in assisting



       2
                The Court is aware that the Supreme Court granted certiorari on September 28,
2010, in the case of Bullcoming v. New Mexico, No. 09-10876, to consider whether a
defendant’s Sixth Amendment right to confrontation is violated when the out-of-court statements
of a nontestifying analyst are admitted through the testimony of a second analyst.

                                          7
               the jury to evaluate the expert's opinion substantially outweighs
               their prejudicial effect.

Fed. R. Evid. 703 (emphasis added).

               The government has represented that Dr. Tops will testify as an expert witness.

See Opp. at 12. As such a witness, Dr. Tops may testify as to his own independent opinion

concerning the cause or manner of Sgt. Johnson’s death, even if that opinion is based in part on

the inadmissible autopsy report. See Fed. R. Evid. 703 advisory committee’s note (giving as an

example of acceptable practice under Rule 703 a physician’s reliance on the reports and opinions

of other doctors in forming his own opinion for presentation at trial). So long as Dr. Tops does

not disclose any of the testimonial hearsay underlying his opinion on direct examination and has

a sound basis for his opinion and conclusions, his testimony would not offend the Confrontation

Clause. See United States v. Turner, 591 F.3d 928, 934 (7th Cir. 2010) (Melendez-Diaz “does

not control” case in which an individual “testified as an expert witness presenting his own

conclusions” based on inadmissible lab reports prepared by another analyst); United States v.

Winston, No. 07-14633, 2010 WL 1253809, at *19-*20 (11th Cir. Apr. 2, 2010) (“Although

Melendez-Diaz discusses when a forensic opinion may be admitted into evidence, neither it nor

any opinion of this Court addresses whether an expert witness’s testimony that is based on a

forensic opinion prepared by a non-testifying expert, in addition to other evidence, violates a

defendant’s right to confrontation. . . . [P]ursuant to Federal Rule of Evidence 703, an expert

witness may base his testimony on inadmissible information so long as such information is

‘regularly relied upon by experts in his field.’”); United States v. Johnson, 587 F.3d at 635 (“An

expert witness’s reliance on evidence that Crawford would bar if offered directly only becomes a



                                                 8
problem where the witness is used as little more than a conduit or transmitter for testimonial

hearsay, rather than as a true expert whose considered opinion sheds light on some specialized

factual situation.”); United States v. Mirabal, No. CR 09-3207, 2010 WL 3834072, at *4

(D.N.M. Aug. 7, 2010) (concluding that an expert may testify as to an opinion reached in reliance

on a document that itself is inadmissible under Melendez-Diaz).

               The Court cautions the government, however, that Dr. Tops may testify only as to

his “independent judgment,” reached by application of “his training and experience to the sources

before him” — not merely by adoption of Dr. Ingwersen’s opinions. United States v. Johnson,

587 F.3d at 635. Dr. Tops would appear to have several pieces of evidence from which to draw

his own conclusions regarding Sgt. Johnson’s death. For example, Sgt. Johnson’s autopsy

yielded not only Dr. Ingwersen’s report, but also a set of photographs of the decedent’s body and

microscopic slides of bodily tissue. See Report at 1, 7. Those items, in combination with Dr.

Ingwersen’s report and any other appropriate evidence, might well provide an adequate basis for

the formation of an expert opinion. Furthermore, the photographs and/or slides, unlike the

autopsy report, presumably would be admissible in evidence, assuming they can be authenticated

as required by the Federal Rules. The government and Dr. Tops simply must take care to ensure

that Dr. Tops is in no way reduced to “parrot[ing]” Dr. Ingwersen’s findings. United States v.

Johnson, 587 F.3d at 635. The Court certainly will be alert to such a risk.




                                                 9
                                       III. CONCLUSION

               For the foregoing reasons, it is hereby

               ORDERED that [75] defendant’s motion in limine to exclude testimony of Dr.

Tops “bearing on” Sgt. Johnson’s autopsy is GRANTED in part and DENIED in part;3 and it is

               FURTHER ORDERED that the autopsy report and death certificate are excluded

from evidence. Dr. Tops will be permitted to testify subject to the restrictions described in this

Memorandum Opinion and Order.

               SO ORDERED.



                                                              /s/__________________
                                                              PAUL L. FRIEDMAN
                                                              United States District Judge
DATE: October 18, 2010




       3
               This Order does not decide the defendant’s request, contained in the same motion,
to exclude the so-called “reenactment video,” which was resolved by a separate Memorandum
Opinion and Order (Docket No. 93) issued by the Court earlier today.

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