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Ex parte Jefferson

Supreme Court of Alabama

March 15, 2019

EX PARTE Cary Trant JEFFERSON (In re Cary Trant Jefferson
State of Alabama)

          Petition for Writ of Certiorari to the Court of Criminal Appeals (Madison Circuit Court, CC-16-1084; Court of Criminal Appeals, CR-17-0275). James P. Smith, Judge

         Ronald W. Smith, Huntsville; and J. Shay Golden, Huntsville, for appellant.

         Steve Marshall, atty. gen., and Andrew Brasher, deputy atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.


          PER CURIAM.


         Parker, C.J., and Wise, Bryan, and Stewart, JJ., concur.

         Bolin and Shaw, JJ., concur specially.

         Sellers, Mendheim, and Mitchell, JJ., dissent.

         SHAW, Justice (concurring specially).

          I concur to quash the writ of certiorari.

          The petitioner, Cary Trant Jefferson, was convicted of murder and was sentenced to 30 years’ imprisonment. The evidence at trial indicated that Jefferson shot Doris Timmons, rendering her a quadriplegic, and that she died three months later. At no point during trial was there an issue raised as to whether the gunshot was the actual cause of Timmons’s death.[1]

         The record demonstrates that, during voir dire, the State indicated that it was going to offer the autopsy report on the victim into evidence through the testimony of Dr. Valerie Green, who prepared the report. During trial, the State instead called Carl Mauterer, the director of the Alabama Department of Forensic Sciences’ Huntsville laboratory. It is clear from the record that Mauterer’s testimony was limited to establishing a foundation for the report to be considered a "business record" for purposes of Rule 803(6), Ala. R. Evid., as an exception to the general rule forbidding hearsay testimony. The contents of the report were not discussed. When the State moved to have the report admitted into evidence, Jefferson’s trial counsel objected:

"[DEFENSE COUNSEL:] Your Honor, the Defendant has the following objections as to the admission thereof.
"First of all, it is hearsay. Second of all, it is not properly authenticated under Rule 901[, Ala. R. Evid.].
"Most importantly, it deprives Mr. Jefferson of his right to confront the witnesses against him under the Sixth Amendment of the United States Constitution.
"And lastly, that there is an insufficient predicate laid for the offering of the doctor’s underlying opinion in terms of her expertise."

          The State responded that Mauterer had provided a sufficient evidentiary predicate to establish that the report was a business

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record. The trial court then asked defense counsel: "[D]o you want to cross-examine the witness before I rule or do you want me to rule now?" Defense counsel stated that he was "prepared for [the trial court] to rule," and the trial court overruled the objections. The autopsy report was admitted into evidence, and its contents were never subsequently mentioned on the record.

          At the time Jefferson lodged his objections, Alabama law held that the admission of an autopsy report sometimes violates a defendant’s Confrontation Clause rights as described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), see Smith v. State, 898 So.2d 907, 916 (Ala.Crim.App. 2004), and sometimes does not, see Perkins v. State, 897 So.2d 457, 463-65 (Ala.Crim.App. 2004).[2] Whether it did or did not depended on the information contained in the autopsy report and the relationship between that information and the State’s burden of proof. Smith, 898 So.2d at 915-17. But at the time the autopsy report in the instant case was offered into evidence, there was no testimony about its contents : Mauterer testified only as to whether the autopsy report was a business record. Defense counsel was then offered the opportunity to cross-examine Mauterer, but declined to do so.

          In his dissenting opinion, Justice Sellers engages in an analysis of what the autopsy report stated; how it was relevant to proving the cause of Timmons’s death; what the decision in Crawford and the subsequent decisions in Melendez-Diaz v. Massachusetts,557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico,564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), deem as testimonial evidence to which the Confrontation Clause would apply; and how those dots can be connected to provide that the admission of the autopsy report here violated Jefferson’s rights. None of this was provided to the trial court by Jefferson when he lodged his objection . No further objection or discussion of the Confrontation Clause issue was provided to the trial court before its judgment was entered and Jefferson was sentenced. Without suggesting what the scope of a proper objection should have been in this case, I note only that a sufficiently specific objection was necessary. Mitchell v. State,913 So.2d 501, 505 (Ala.Crim.App. 2005) ("To preserve an issue for appellate review, the issue must be timely ...

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