UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

__________________________________________ ) UNI TED STATES OF AMERI CA ) ) v. ) Criminal No. 09-0026 (PL F) ) RI CO RODRI GUS WI L L I AMS, ) ) Def endant. ) __________________________________________)

MEMORANDUM OPI

NI ON AND ORDER This matter is befor e the Court on def endant’ s motion t o exclude “any testimony of Dr. T err il Tops bearingon” the a utopsy of Serg eant Juwan J ohnson, the alleg ed victim in this
case . Def endant’ s Motion in L imine to Ex clude Evide nce ( “Mot.”) a t 1. As expl ained be low, the Court will gr ant the motion in part and de ny it in part, prohibiting the g overnme nt from introducingthe autopsy

repor t in evidence or askingDr. Tops to summarize its contents, but permitting him to testify

reg ardingany

independe nt opinions he has formed ba sed on the re port and other evidenc e upon which he may rea sonably

rely
. I . DI SCUS SI ON The indictment in this case a lleg es that the de fenda nt, Rico W illiams, along with other individuals, committed murder by beatingSerg eant Juwan J ohnson to death on Jul y 3, 2005. Indictment ¶ 5. On July 6, 2005, Dr. Kathleen M. Ing wer sen, an A rmed F orce s Reg ional Medica l Ex aminer, pe rfor med an a utopsy on the body

of Sg t. J ohnson. See Gove rnment’s Opposition to Defenda

nt’s Motions in L imine (“Opp.” ), Ex. A (Final Autopsy Report) (“ Report”)at 2. Dr. Ing wer sen pre pare d a wr itten report in which she descr ibed the phy sical condition of

Sgt. Johnson’s body

and interna l org ans, ana ly zed the appea

ranc e of slice s of tissue viewed throug h a microsc ope, and r elayed the r esults of tox icolog y and blood tests. See id. at 4-8. H er conclusions wer e summarized as follows:

Ba sed on these a

utopsy finding s and the investig ative and historica l information ava ilable to me[,] the ca use of de ath of this 25 y ear old male, Juwan J ohnson, is mult iple blunt force injuries repor tedly sustained in a phy sical assa ult resulting in fatal injury to the hear

t and bra in. Neuropa

thology finding s show the bra in injury to have occur red a pproxi mately

1-3 day s [ sic ]. This is consistent with the repor ted assault 24 hours pr ior to death. The manner of death, in my opinion, is hom icide. I d. at 2. Dr. Ing wer sen also sig ned Sg t. J ohnson’s death cer tificate. See Opp., Ex. B (Certificate of De ath). In a sec tion of the ce rtificate entitled “Mode of Death,” Dr. I

ng wer sen che cked the box for “ Homicide.” See id.

Since per formingthe autopsy on Sgt. Johnson, Dr. I ng wer sen has r etired f rom the milit ary and moved ove rsea s. See Opp. a t 2. As a re sult, she is not available to testify at trial. I d. at 3. Althoug h Dr. Ing wer sen will not testify , the g overnme nt seeks to place the contents of her a utopsy repor t and the dea

th cer tificate into evide nce by

two means: (1) by

“introduc[ing] the autopsy repor t, a diag ram c reated duringthe autopsy proce ss depicting hemorrha g e, photog raphs taken dur ing the autopsy

proce dure, photos of micr oscopic slides depic ting he morrhag e and injury at the ce llular level, a

nd Serg eant Johnson’s certificate of de ath into evidence ”; and ( 2) by “introduc[ing] medica l testimony from Dr . [Terril] Tops,” a medica l examiner who was not prese nt at the autopsy

of Sg t. J ohnson’s body

but who, acc ording to the g overnme nt, can testify “re g arding

the ty pes of injuries that Ser g eant Johnson had all over his body , the place ment of the

2injuries, the possible cause s of the injuries, the medic al ef fec ts of the injuries, and his opinions reg ardingthe ca

use and ma

nner of Serg eant Johnson’s death.” I d. The de fenda nt objects that the introduction of the autopsy repor t, the death c ertificate, and a ny testimony

by Dr. Tops re g arding the contents of those documents would violate his rig hts under the Confr ontation Clause of the Six th Amendment to the United States Constitut ion.
I I . DI SCUS SI ON The Six th Amendment conf ers upon the de fenda

nt in a criminal prose cution “the rig ht . . . to be confr onted with the witnesses a g ainst him.” U.S. C O N S T . amend. VI . “A witness’s testimony

ag ainst a def

endant is thus inadmissible unless the witness appea rs at trial or, if the witness is unavailable , the def endant ha d a prior oppor

tunity for c ross-examination.” Melende z-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009); see also Cra wford v. Washington, 541 U.S. 36, 53-54 (2004) . A dec lara nt is a “witness” w ithin the meaning of the Six th Amendment if she “ bear [s] testimony ” ag ainst the defe ndant — that is, if she make s statements that ar e “te stimoni al.” Cra wford v. Washing ton, 541 U.S. at 51. As defined by the Supreme Court in Crawf

ord, a “ testimonial” statement is one that wa s “made under circ umstances that would lea d an objec tive witness rea sonably to believe that the statement would be ava ilable for use at a late r trial.” I d. at 52. The Supre me Court has held that stateme nts made by scientific a

naly sts — as opposed to ey ewitnesses, f or example — rec eive no spe cial treatment under the Confr ontation Clause; if a statement by a lab tec hnician or f

orensic a naly st qualifies as te stimoni al, then it may be admitted ag ainst a cr iminal defenda nt only if the dec lara

nt

3testifies at trial or is unava ilable and ha s been c ross-examined by the def endant’ s counsel in the past. See Mele ndez-Diaz v. Massachuse tts, 129 S . Ct. at 2534-37.

The a utopsy repor t and death cer

tificate that the g overnme nt seeks to introduce in evidenc e in this matter fit square ly within the definition of testimonial statements. W hile it may be the c ase, a s the g overnme nt arg ues, see Opp. at 10-11, tha t Dr. Ing wer sen did not perf orm an autopsy on Sgt. Johnson’s body solelyto gather e vidence for use in a future prosec ution, there can be no doubt, based on the r ecor d befor e the Court, that she w as aw are that her r eport “ would be ava ilable for use at a late r trial.” Cra wford v. Washing ton, 541 U.S. at 52. As a military medical e x aminer, D r. Ing wer sen wa s empower ed by statute to “conduc t a fore nsic patholog y investigation to determine the c ause or manner of death” in cer

tain case s in which “it appe ar[ed] that the dec edent wa s killed or that, whateve r the c ause of the dec edent’ s death, the c ause w as unnatura l.” 10 U.S.C. § 1471(b)(2) (A). When Dr . Ing wer sen pre pare d her a utopsy repor t, she
was a war e that Sg t. J ohnson had bee n “found unr esponsive in his barr acks r oom” and that he had “re portedly” bee n the victim of “a phy sical assa

ult.” Report at 1-2. Asimple visual inspection
reve aled that the body

was c overe d in cuts and bruises. See id. at 6-7. The a utopsy itself was attended by

two specia l ag ents from the United States Army Criminal I nvestig ation Command. I d. at 3. I t could not have e scape d Dr. I ng wer sen’s notice that her f indings re g arding

the condition of the dec edent’ s body and the c ause of

his death would likely

be used in a

criminal homicide investig ation and at a ny resulting judicial proce eding
. Fur thermore , the autopsy

repor t and death cer

tificate pr epar ed by

Dr. Ing wer sen
are marke d by

a for mality char acte ristic of docume nts to be introduced in cour t. See Melende zDiaz v. Massachuse tts, 129 S . Ct. at 2543 (Thomas, J ., concur ring ) (opiningthat “the
4Confrontation Clause is implicated by extrajudicial statements only insofar a s they

are contained in formalized testimonial materials, such as a ffidavits, depositions, prior testimony , or confe ssions” (citation and inter nal quotation marks omitted)). The autopsy repor t specifies the
source of leg al authority

for Dr . Ing wer sen’s for ensic e x amination, the “investig ative ag ency” involved with the case , and the da tes and locations relevant to Sg t. J ohnson’s death. See Report at 1. I t is twice signe d by Dr. Ing wer sen, with her sig nature appea ring above he r title, Armed For ces Reg ional Medica l Ex aminer. The death c ertifica te is a standar d form, its heading s ty ped in both English and F renc h, in which a pathologist may rec ord a de cede nt’s name, Social Security number, ne x t of kin, and ca use of de ath, amongother de tails. I t too is si g ned by Dr. Ing wer sen, under

a dec laration stating, “I

have vie wed the r emains of the de cea sed and de ath
occur red at the time indicated and f rom the ca

uses stated a

bove.” O pp., Ex . B. B oth the repor t and the c ertifica

te thus bear

the hallmarks of

officia l documents, making “solemn dec laration[ s] or af firmation[s] . . . for the pur pose of e stablishing or pr oving some fac t.” Melende z-Diaz v. Massac husetts, 129 S. C t. at 2532. Thus, the re port and de ath ce rtificate contain testimonial statements that may

not be admitted in evidenc e unless the de fenda nt has the opportunity

to
cross-e x amine Dr . Ing wer sen at trial, or has had that opportunity

in the past. 1 The g overnme nt attempts to avoid this conclusion by arguing that both documents
are mere ly

“re cords ke pt in the reg

ular c ourse of

business.” Opp. a

t 6. Such business recor ds g ener ally are exempt from the bar to a dmission of hearsa y imposed by

the Fe dera l Rules of The g overnme nt has not submitt ed as a n exhibi t for the Court’s inspec tion the 1 “diag ram c reated duringthe autopsy proce ss” that it also seeks to introduce in evidence . Opp. at 3. I f that diag ram wa s prepa red by Dr. I ng wer sen as pa

rt of the same proc ess that yielded the autopsy repor t and death cer

tificate, the n it too will be excluded fr om evidence , for the sa me rea sons that the repor

t and ce rtificate must be excluded. 5Evidence . See F ed. R. Evid. 803(6). B ut even a ssuming that the a utopsy repor t and death
cer tificate qua lify

as business re cords within the mea ning of the Fe dera l Rules, the Supreme Court made cle ar in Mele ndez-Diaz that a docume nt’s status as a business re cord unde r the Fe dera l Rules has litt le import for a Confrontation Clause ana ly sis. “Business a nd public rec ords
are g ener ally

admissible absent conf

rontation not beca

use they qualify under a n exception to the hear say rules, but bec ause — ha

ving be en cr eate d for the a dminist ration of a n entity ’s af

fairs a nd not for the pur

pose of e stablishing or pr oving some fac t at trial — they are not testimoni al.” Melende z-Diaz v. Massachusetts, 129 S. Ct. at 2539-40. I f a business r ecor d is testimoni al, howeve r — that is, if it has been pr epar ed at lea st in part for “ the purpose of establishing or provingsome fac t at trial” — then the rec ord is not admissible unless the defe ndant has the opportunity

to confront the de clar ant. I d. at 2540. As the Court alre ady

has dete rmined, the doc uments in question were in fac t produce d at least in par

t for possible use in a c riminal prosec ution or the milit ary equivalent. Whether the doc uments also qualify as business re cords unde r the he arsa y rules ther efor e is irrele vant. This is true notwithstanding the case s cited by the g overnme nt — most or all decided befor e the r elea se of the Supre me Court’s dec ision in Melendez-Diaz — for the proposition that “‘business r ecor ds are expressly excluded from the r eac h of Craw ford.’ ” 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 prope rly

admitted under F ed. R. Evid. 803(6) c annot be testimonial bec ause a business
rec ord is fundame ntally

inconsistent with what the Supreme Court ha s sugg ested c omprise the definingchar acte ristics of testimonial evidence .’” ( quoting United States v. F eliz, 467 F.3d 227,

6233-34 (2d Cir. 2006)) . The Supreme Court in Melendez-Diaz decisively reje cted that a

rgument, and the Court ther efor e ca n acc ord it no weig ht. 2 Be cause the statements conta ined in the autopsy repor t and the death cer

tificate
are testimonial withi n the meaningof that term e stablished by Crawf ord and Me lendez-Diaz, neither doc ument will be admitted in evidence unless Dr. I ng wer sen testifies. Nor

will the g overnme nt be per

mitted to make “an e nd run ar ound Crawf ord” a nd Melende z-Diaz by

placing Dr. Tops on the stand to r epeat or summarize statements made in e ither of those doc uments. United States v. J ohnson, 587 F.3d 625, 635 (4th Cir. 2009) ( war ning that a witness may

not be “used a s litt le more tha

n a conduit or tra

nsmitt er f or testimonial hear say”). Havingrec og nized those lim its on the scope of D r. Tops’ testimony , the Court is also mindful that “while the Supre me Court in Crawfor d [and Melendez-Diaz] altered Confrontation Clause pre cede nt, it said nothi ngabout the Clause’ s relation to Fe dera l Rule of Evidence 703.” United States v. He nry , 472 F.3d 910, 914 ( D.C. Cir. 2007); see a lso United States v. L aw, 528 F .3d 888, 900 (D.C. Cir. 2008). That Rule provide s:

The fa cts or data

in the particula

r ca se upon which a

n expert bases an opinion or infer ence may be those pe rce ived by

or made known to the expert at or bef

ore the hear ing. I f of a

ty pe re asonably

relied upon by experts in the particular

field in formingopinions or infere nces upon the subject, the facts or data need not be admissible in evidenc e in order for the opinion or inferenceto be admitted . Fa cts or data

that are otherwise ina dmissibl e shall not be disclosed to the jury

by the propone nt of the opinion or infer ence unless the cour

t determines that their

probative va lue in assisting

The Court is awa

re that the Supreme Court g rante d cer tiorari on September

28, 2 2010, in the case of B ullcoming v. Ne w Mexico, No. 09-10876, to consider whether a defe ndant’s Six th Amendment rig ht to confrontation is violated whe n the out-of- court stateme nts of a nonte stifying a

naly st are a dmitted through the testimony of a se cond ana ly st. 7the jury to evaluate the expert' s opinion subst antially outweighs their pre judicial eff

ect. Fe d. R. Evid. 703 (emphasis adde d).

The g overnme nt has repr esente d that Dr. Tops will testify as an e x pert witness. See Opp. at 12. As such a witness, Dr . Tops may testify as to his own independe nt opinion
conce rningthe ca

use or manne r of Sg t. J ohnson’s death, even if that opinion is based in pa rt on the inadmissible autopsy

repor t. See Fe d. R. Evid. 703 advisory committee’s note ( g iving a s an example of ac cepta

ble pra ctice unde r Rule 703 a phy sician’s re liance on the repor ts and opinions of other doc tors in forming his own opinion for prese ntation at trial). So long a s Dr. Tops does not disclose any

of the testimonial hear say underly ing his opinion on direc t examination and has a sound basis for

his opinion and conclusions, his testim ony would not offend the Confrontation Clause. See United States v. Tur ner, 591 F .3d 928, 934 (7th Cir. 2010) (Mele ndez-Diaz “does not control” c ase in whic h an individual “testified a s an expert witness pre sentinghis own conclusions” ba sed on inadmissible lab repor ts prepar ed by

another analy st); United States v. Wins ton, No. 07-14633, 2010 WL1253809, at *19-*20 (11th Cir. Apr . 2, 2010) (“ Although Melende z-Diaz discusses when a f orensic opinion may

be admitted into evidenc e, neither it nor any opinion of this C ourt addre sses whethe r an e x pert witness’s te stimony that is based on a fore nsic opinion prepar ed by a non-te stify ing e x pert, in addition to other evide nce, violate s a defe ndant’s rig ht to confrontation. . . . [P] ursuant to Fe dera l Rule of Evidence 703, an expert witness may

base his testimony

on inadmissible information so long a s such information is ‘re g ularly relied upon by

experts in his field.’”); United States v. Johnson, 587 F.3d at 635 (“An expert witness’s relianc e on evide nce tha t Crawfor d would bar if of fer ed dire ctly

only become s a

8problem whe re the witness is used as little more than a c onduit or transmitter for te stimoni al

hear say , rathe r than a s a true e x pert whose considere d opinion sheds light on some spec ialized fac tual situation.”); United States v. Miraba l, No. CR 09-3207, 2010 W L3834072, at *4 (D.N.M. Aug . 7, 2010) (c oncluding that an expert may testify as to an opinion rea ched in r eliance on a docume nt that itself is inadmiss ible under Me lendez-Diaz).

The Court ca

utions the gove rnment, howe ver, tha t Dr. Tops may

testify only as to his “independe nt judgment,” rea ched by application of “ his training a nd experience to the source s befor e him” — not mere ly by adoption of Dr. I

ng wer sen’s opinions. United States v. J ohnson, 587 F.3d at 635. Dr. Tops would appe ar to have seve ral piec es of e vidence from which to dr aw his own conclusions reg ardingSgt. Johnson’s death. For example, Sgt. J ohnson’s autopsy yielded not only

Dr. Ing wer sen’s re port, but also a set of photog raphs of the dec edent’ s body

and microscopic slides of

bodily tissue. See Report at 1, 7. Those items, in combination with Dr. Ing wer sen’s re port and a

ny other a ppropriate evidenc e, mig ht well provide a n adequate basis for the formation of an expert opinion. Furthe rmore, the photogr aphs and/or slides, unlike the autopsy repor t, presumably

would be admissible in evidenc e, assumingthey can be authentica

ted
as re quired by

the Fe dera l Rules. The g overnme nt and Dr. Tops simply must take ca

re to e nsure that Dr. Tops is in no way reduc ed to “pa

rrot[ing]” Dr. Ing wer sen’s finding s. United States v. J ohnson, 587 F.3d at 635. The Court ce rtainly will be aler

t to such a risk.

9I I I . CONCL USI ON For the fore g oing r easons, it is here by ORDERED that [75] defe ndant’s motion in lim ine to exclude testimony of Dr. Tops “bea

ringon” Sg t. J ohnson’s autopsy is GRANTED in par

t and DENI ED in part; and it is 3 FURTHE R ORDERED that the autopsy repor t and death cer

tificate a re e x cluded from evide nce. D r. Tops will be per mitted to testi fy

subject to the re strictions describe d in this Memorandum Opinion and O rder
.

SO ORDERED.
/s/__________________ PAULL . FRI EDMAN United States District J udg e DATE: Oc tober 18, 2010

This Order

does not dec ide the def

endant’ s reque st, contained in the same motion, 3 to exclude the so-ca lled “re enac tment video,” which w as re solved by a sepa rate Memorandum Opinion and Orde r (Doc ket No. 93) issued by the Court ear lier today
. 10