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
W. Smith, Huntsville; and J. Shay Golden, Huntsville, for
Marshall, atty. gen., and Andrew Brasher, deputy atty. gen.,
and J. Thomas Leverette, asst. atty. gen., for appellee.
QUASHED. NO OPINION.
C.J., and Wise, Bryan, and Stewart, JJ., concur.
and Shaw, JJ., concur specially.
Mendheim, and Mitchell, JJ., dissent.
Justice (concurring specially).
concur to quash the writ of certiorari.
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 Timmonss
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 Mauterers 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, Jeffersons 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 doctors underlying opinion in
terms of her expertise."
State responded that Mauterer had provided a sufficient
evidentiary predicate to establish that the report was a
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.
time Jefferson lodged his objections, Alabama law held that
the admission of an autopsy report sometimes violates a
defendants 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). Whether it did or did not depended on
the information contained in the autopsy report and the
relationship between that information and the States 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.
dissenting opinion, Justice Sellers engages in an analysis of
what the autopsy report stated; how it was relevant to
proving the cause of Timmonss 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 Jeffersons 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 ...