and the next case center calls case number one one one five three four people of the state of illinois versus curtis leach that has taken his agenda number eight mostly ready to testimony of a circuit witness and then that witness testified to the content of the report the report was also admitted as substantive evidence against mr leach without the opportunity of him being able to cross examine the declarant of the report that being the medical examiner who testified who conducted the autopsy in this case the u s supreme court's proper line of cases are controlling in this instance the most recent case being bowl coming vs new mexico this case is exactly like bill coming rights vs new mexico here as simple coming the report was submitted as a business record and then testified to under the guise of expert testimony that was done through a surrogate witness a witness who did not perform but the test at issue in our case it's obvious an autopsy and both coming it was a blood alcohol concentration time of death the testifying witness testified that mrs leach had a normal cardiovascular system and provide organs for healthy this is important because mr leach was convicted of knowing murder by the witness at trial however she had no personal knowledge of the seed in this physical condition at the time of death there's nothing that she could have garnered to make that conclusion except for dr joyce report to homicide and the medical examiner memorializes his findings in a report then the presumption is and the supreme court says does does a reasonable person expect that their declarations and this case document or you know whatever that the document is that's made with the primary purpose of aiding a police investigation and could potentially be of relevance in a criminal case that pac man is believe so and i think with health care workers i think they are under a statute that says if you suspect child abuse then you have to report it to be if there were yes that instigate some sort of not proceeding but investigation and that's what the supreme court was his wife so from the outset dr choi presumably suspected that the cause of death a strange way should because that's what the police report provided to him sat so once he's conducting the side topsy once he and he concluded that yes in fact this to show that yes this individual was killed because that's a element of murder and be the cause of death was you know the consequence of this car accident that would be a piece of evidence that could be used against the defendant at that trial n memorialized his finding in the actual report he's he's creating an evidentiary record of the cause and manner of death in this woman's overall physical condition at the time of her at the time that she died so in those circumstances there are times you report and particularly in this case given that from the outset dr choi knew that this was potentially a criminal case and we know that because the u s supreme court says we have to consider what a reasonable person would is that this would be used as evidence against mr leach at a future criminal proceeding you explain how it was you know the words and considering the williams case was this  evidence and in court by the state well this is exactly what the u s supreme court has expressly forbidden the korda said that the sixth amendment doesn't suggest any open ended exceptions to confrontation should be designed by the courts that's from coming initially additionally as far back as crocker the court made a point of saying that corner statements enjoy no special status in our american legal system they may have in common law in england but they don't here in the condition particularly her cardiovascular system was normal and the testifying witness admits that her only knowledge of that is from dr troy's i types report there's no photographs of mrs leeds cardiovascular you know he presented the fence of involuntary manslaughter an additional eight second degree murder and he was found guilty of knowing murder and finding him guilty of knowing murder the trial court specifically cited the length of time  testifying witness has no personal knowledge about not whatsoever she doesn't have a photograph of the heart or anything like that where she can make a determination where she could make a finding on strangulation given the physical evidence that she's on photograph  prosecution has the burden of proof they have the burden of presenting witnesses against the defend it with regard to autopsy i would say as a defense attorney most of times the defense attorney doesn't necessarily want cross examine a medical examiner on the death and the findings on autopsy but murder cases are gruesome you want to present to a jury that your victim was stabbed twenty five times that's not going to help your client so in other cases we you can have a murder that's up to the state what the state can do is try and work out something with the defense counsel to you know have a stipulation oftenest witness says if it's shooting you know there might be witnesses you have by death witnesses in fact in this case mrs leaches mother testified that a family member by the body had foreigners in mind she saw the body at the funeral home so there are other ways to do this and what the supreme court has made clear is that you know the six member rights connotation lovejoy in those cases the underlying point at issue was not admitted a subset and evidence in this case it was and what this court point out away on says in that case the expert did not parrot and just regurgitate the findings of the underlying report when you look at the transcript here you'll see that's exactly what the testifying witness she didn't have any independent opinion other than what she could see from the photographs and as we pointed out to your distinguish said you can't do there's no common law exception for dating a defined and six my right to confrontation it may be inconvenient for the state but so is the defendant's right so like a jury trial and his right against boils down to is you cannot circumvent the defendant's sixth amendment right to confrontation once they admitted this autopsy report dr choi became a witness against mr leach that means that mr leach had not had it was required to have an opportunity to cross examine him that the evidence concerning her the victim's condition was critical is that an element that the state needed to prove anything to the old maxim that offended takes the victim as he finds them i mean if there's imperfection there is intent was to choke until she can move any more does it make any difference whether he knew well based upon the expert testimony that it takes two and a half or three minutes landslide and that does go to her physical condition because if he knowingly knew and there was a strong probability that she would be killed it depends on how long she was able to sustain this kind of  injury to her neck if she was in a weakened physical state you know it would have taken a very brief time and that would sort of think gate any idea that he knowingly killed her it would go toward a second degree murder and we're going more into possibility involuntary manslaughter a conscious disregard for involuntary manslaughter if she was and we can physical state which there is some suggestion of that given that well we know because doctors testified is that she was obese three hundred pounds and seemed to be a smoker so there the thing if i can make a point about this and this is why bowl coming one this year stress the reason why cross examination is so important because it goes to showing that the declarant is reliable that is findings are competent it ensures reliability of evidence being presented this is exactly why supreme court overruled ohio v roberts because there is no insurance for liability except through cross examination the court was very thorough in going through in crawford the history of why we have a confrontation clause and what the roots of essentially what it boils down to is if you're going to present a witness against a defendant you can't evade it by presenting an expert witness testifying to that underlying witnesses findings and that's exactly what happened here statement is there the potential that the statement itself could be used in a criminal prosecution process proceeding in this case it is that detroit knew when he physically wrote out the autopsy report that it was a homicide  works with the police the police are the ones who notified him about this and actually if you look at the county and the state statutes it says that you know that they are supposed to and i'm pleased investigation so i think both coming in line is tears are very clear on these points  i'd like to proceed in this manner first i would like to clarify one important factual point about the record and then address the one that was issued and then the business records issue the important point to clarify about the record is what the what i reviewed the materials that were generated during the autopsy of the victim in this case to establish the relevance her of her opinion essentially it was you know she referred to the specific autopsy number but the numbers matched on the documents of the numbers matched on the photograph verses clark and it's progeny most recently discussed in love joy and williams makes clear that an expert may discuss the basis of their opinion including the findings and observations and facts gleaned by other experts it's the manner in which these are discussed that's important it's the purpose and just like it was done for the purpose of explaining her own expert opinion regarding causing manner of death that the jury received it was a bench trial and i was just going to actually clarify that that if this had been a jury trial it would not have gone back and that is the way to kind i think illustrate the difference it was marked as an exhibit during her testimony it was moved into advents into evidence at the conclusion of the trial or i think that the clues that conclusion of the people's chase case in chief but at that time even defense counsel noted your honor this is a bench trial based on that we have no objections it would be offered for the limited purpose of explaining her admitted into evidence or however but not in the manner that counsel suggesting that section one fifteen five point one allows for the admission of a document an autopsy protocol as evidence of prima first claim a fashion  relevant which is determining rather the autopsy protocol is a business record under crawford because and i'll step away from the williams issue for a minute as we lay out in our brief the primary issue presented by these facts are rather is whether  the autopsy protocol is a business record for purposes of crawford crawford makes clear that business records traditional business records are non testimony or by nature because of the nature of the nature themselves of the document themselves they're prepared in the it would be non tast omonia and so therefore you know whether it's admissible would then be a question of state law but whether there is a confrontation problem i would say no there is not a confrontation problem so when you're looking at business records which is really the primary issue here because if it's a business record and a kafir then it doesn't matter to what extent dr angle of it she relied on it or talked about it it's not testimonial so and if it's not testimonial then there's no confrontation cla problem here so as the appellate court laid out you look to illinois business records and you look to the statute which has clearly establishes that protocols are a business records are public records under illinois law to give an extreme melendez diaz massachusetts said that these the record issue birth certificate of authenticity proving the nature and comparable composition and weight of a substance massachusetts called that a public record and the u s supreme court said no state you can't just call something a public record a business record and get around crawford rather you look first you look first to whether a state under its own rules of evidence and hearsay  the case if the regularly conducted business activity is the production of evidence for use at trial so isn't that what we have to look at was this document was this activity of performing  records are public records based on the statute and case law more would be one case for example so then you look to say to see wow is the primary purpose producing evidence at trial and that answer is no and that's where you look at the statutes and the ordinances governing the medical examiner's office and you look to see what the duties of a medical examiner are and as we way out in our brief the medical examiners were first  that it's nothing like a coroner's inquest so those references in the u s supreme court cases are really not a couple here medical examiners are obliged by law to investigate and determine cause of death and at least fifteen different a numerated situations  all of which are criminal or involve homicide i think it's you know death during a therapeutic procedure the death of them during the course of employment it's very clear when you look at all of these situations that the business of the cook county medical examiner's office is the further into the public health is investigating causes of and manners of death in and in death scenarios that further the public health now whether it is a indicated that a case is a homicide or not let's say it's not initially indicated it's a homicide but later that the medical examiner decides and that in his opinion it is doesn't change what the medical examiner does they still do the is there anything in the record to indicate back to this admittance of the autopsy report was there any comment made no judge will moving to admit this but for the purpose of the wilson colored person for the purpose of being the testifying other than dr troy and so there's a brief ruling on that and then just prior to dr wrangle about his testimony defense the defense attorney renews his objection and at that time the court but it's not evidence for its truth and proffered footnote nine in crawford specifically exams the use of testimony statements not offered for their truth if anytime a testimonial statement was quote unquote admitted if it was necessarily offered for its truth well the defense attorney cross examines dr langer a bitch about the victim's health and how bad it just is just as he did in this case how bad it impacted her ability to form opinions regarding this particular victim stuff whether it informed it or not and i will make one factual point that i think justice come i am brought up earlier the whole time frame but dr wayne bridge was testimony about how long it takes somebody to go unconscious before or right while they're being strangled was not initially back specific to this case it was just general and the facts of this case are that defendant strangled suspect well past the time that she was unconscious and he admits that misstatement and so whether clinical data occurred you know at forty five seconds or three minutes because he actually admits and this is uncontroversial that he strangled her for three minutes whether clinical death or just being unconscious occurred wouldn't change the fact that she was not moving and he continued to strangle her after she was not moving so that's kind of really a red herring and i guess i'll go back to bill coming because i can't sit down without talking up or coming  diaz and that a document was admitted at a frantic analyst did testing and that person's opinion was put in a document and that document was admitted at trial and it was admitted as the advocates of an element of the offense the blood alcohol content which was an element of this aggravated dui offense the only difference was that the state did it through the testimony of another analyst who worked on the rap that analyst did not give his own opinion regarding the blood alcohol content so it's not like this case he really just it was twofold one he laid the foundation for the admission of the document and then two the state took the position that this was kind of this was good enough you've got this analyst who's familiar with the procedures and he can be crossed on it and the court said no when you would need a specific persons and i think they use when you introduce a person statement into evidence for its truth  then the defendant's entitled to confront that person and again so that that's a distinction though coming is really not approachable and the key another key to look at and becoming is justice sort of meyer's concurrence because she very clearly lays and it was it was signed to dictated on july twenty three signed by this medical examiner joy twenty eighth where the opinion is july twenty eighth was the date and dictated the twenty third but attached to that is the toxicology report and attached to that is a document called forensic institute medical examiner case report cook county are you familiar with that group i'm not that was part of the exhibit and it is yes i it it was part of the town it was part of the package yes that was admitted as that so that was prepared according to the document june thirtieth so that's before july twenty eighth and in the neck to read the whole thing but it says that the you know refers to the discussions with detective franklin and so forth and there's an investigation and says the subject presuming that's the body along with a copy of police report were ordered into the forensic institute so i'm having trouble understanding with that as the subject of this how this was not an autopsy prepared for the purpose of examining for forensic purposes or otherwise what the police investigation because i did leave this out on the conclusion for an atomic diagnoses the first one is a medical term i can't pronounce two is for me fluid in the trachea three a scene investigation and forest police investigation right before the opinion in conclusion i so i'm having difficulty understand how this is not prepared for the purpose of testimony at least for the to further the investigation on the criminal charge because it's it's a broader question i guess is the best way i would address  as to what the business of the medical examiner's office is and i think michigan v bryant which is another recent u s supreme court opinion might be the place to look i'm not going to build a quote specific language but i think that they and they discussed primary purpose that was the ongoing emergency scenario was a victim was shot and made statements to the police on the scene that breck shot me and they were determining whether those were testimonial and that kind of hones the primary purpose analysis and i believe there was language but says just because it may be used doesn't mean that that's a primary purpose  autopsy and medical examiners investigation the cause and manner of death wouldn't change at all based on what they knew before and what their ultimate conclusion was at the end so if i remember correctly because i think doctor it's doesn't really change it and the fact that her alter that she did in fact ultimately conclude it was a homicide also doesn't change the analysis so if this had if there had been an investigator's report saying we think you know initial indication  the business of the cook county medical examiner's office well as with any business record and i'll just briefly state so it's the states because bush is there evidence in the record as to the actual operations of the medical examiner's office i know you've argued the briefers fifteen different categories i have no idea what percentages are one category represents ninety percent of what they actually do versus you know one fifteen that's not in this record there is there discussion about it but again i don't think there were percentages in the appellate court opinion it's just based on examination of the statutes instructive would be new york has a similar from what i can bring a very similar statutory scheme that's not accord salmon as they are independent of law enforcement they act they operate independently of law enforcement that the protocols they generate are our business records on a profit so i would direct you know it's hard that the cases defendants sites saying that illinois that they want to medical examiners are law enforcement all from other states every state has its own statutory scheme so finding evidence and the duties of medical examiners and sheriffs and things along those lines so you really can't compare but new york seems to be very similar and actually the appellate court found new york's case is instructive in this case and i think that reliance was appropriate and instructive on this and unless there are any other questions we ask that this court  in the case of an autopsy if the medical examiner is even put on notice that there's an investigation any type of investigation yes they have now they have the type of knowledge that would indicate it may be a homicide investigation and therefore that would make the document testimonial in nature yes i think that initiates the testimony on the nature of the document and it's only when that back commence actually written which memorializes the opinions of the medical testimony are the same is true here but more so for many of those family medical examiner in the state cites this in their brief you know part of what they're doing is aiding the investigation and that they're supposed to preserve the evidence and especially in this case where as you pointed out the tox report we have in this case is irrefutable proof that dr troy upon receiving the body knew this was a probable homicide i think that's fair to say and how this court should look at the issue and this is from crawford whether it's a preview a certified priest house statement that's what the autopsy is certified pretrial statement which establishes or proves past events the tox report is proving a past event that this woman was murdered it's a homicide the cause of a later trial it's i mean the court has look at the big picture here and we have to follow what the u s supreme court says on that the other issue with the business records you know that this report is admit is substantive evidence where the underlying document is also admitted that's our case that's exactly our case because not only do you have this expert witness testifying but what she's testifying to is being admitted as substantive evidence against the defendant that's exactly why that's why i'm interested what's in the record as to what was said but i don't recall because we also have a law that indicates that the trial judges presume to know the wall we don't have a jury here we're here but it's a bench trial right and you would think that the judge would time that showed it was annoying murder and the length of time has a direct relation to mrs beecher's overall health and that was the one point i wanted to correct for the record the state argued that you know that it was three minutes that the states the record what he said is and this is on page thirty eight seven and thirty eight of his transcript from his statement he initially says it was over in a matter of seconds then a couple sentences down he says a good three minutes then he says it was like another goes to whether or not he had the knowledge of what he was doing because her dad or whether his acts were one of second degree murder or one of involuntary manslaughter and the other issue i'd like to touch on is this business records well that's a business record that means