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Sunday, November 30, 2014

Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams 219 NJ 89 (2014)

Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams 219 NJ 89 (2014)
Defendant’s failure to object to the admission of the testimony on confrontation grounds and his decision to cross-examine the medical examiner constitute a waiver of his right of confrontation.
State v. Bryden Robert Williams (A-5-12) (070388)

Decided August 6, 2014

ALBIN, J., writing for a unanimous Court.

In this appeal, the Court considers whether the admission of testimony from a pathologist who did not perform the victim’s autopsy violated defendant’s right of confrontation under the Sixth Amendment of the United States Constitution or Article I, Paragraph 10 of the New Jersey Constitution.

On the evening of September 2, 2006, Joel Whitley, Omar Boyd, and Boyd’s girlfriend attended a party at Dynesha Gibson’s apartment. Whitley became intoxicated and involved in an altercation with another party guest, and was asked to leave. A short time later, Whitley realized he had left his cell phone at the party, and he and Boyd went back to retrieve it. Gibson refused to return the phone and Whitley started kicking the apartment’s front door. Gibson told Whitley and Boyd that they should leave before defendant arrived. As Whitley and Boyd were leaving, defendant arrived. He exited his car and, armed with a handgun, aimed it at Boyd and said, “What’s the problem?” After Gibson yelled from the window that Whitley had “disrespected” either her or her sister, defendant put the gun to Whitley’s head and forced him into an adjacent alley. Defendant then pointed the gun at Whitley’s chest and fired once, killing him.

Defendant was charged with murder and related weapons offenses. At trial, defendant asserted that he acted in self-defense. He claimed that when he arrived at Gibson’s apartment, he saw Whitley banging on the apartment’s door and told him to get off the porch. As Whitley stepped off of the porch, defendant claimed that Whitley pulled out a gun and pointed it toward him. Defendant claimed that he struggled with Whitley and that as they wrestled, a single shot was fired with the gun still in Whitley’s hand. Defendant stated that he never touched the gun’s handle and was trying to disarm Whitley when the gun fired.

Dr. Zhongxue Hua, the Chief Medical Examiner of Union County and an expert in forensic pathology, testified as to the cause and manner of Whitley’s death. Dr. Hua did not perform or assist in the autopsy, which was conducted by Dr. Leonard Zaretski, Union County’s Chief Medical Examiner at the time of Whitley’s death. Dr. Zaretski was not called as a witness, and defendant did not object to Dr. Hua’s testimony or qualifications. Based on his review of the autopsy report, photographs, the victim’s clothing, and a State Police Laboratory report, Dr. Hua stated that he was able to reach independent conclusions about both the manner and cause of Whitley’s death. He stated that the manner of death was homicide and that the cause of death was a bullet that entered the left side of Whitley’s chest and moved downwards, damaging his heart and a major artery. No defensive wounds or gunpowder burns or residue were found on the victim’s body.

On cross-examination, defense counsel pursued a line of questioning consistent with a theory of self-defense. Based on gunpowder residue discovered on Whitley’s clothing, defense counsel elicited from Dr. Hua that the gun was fired several inches away from Whitley. Defense counsel also had Dr. Hua explain that the bullet took a downward path through Whitley’s body. In response to defense questioning, Dr. Hua stated that if Whitley had been holding the gun’s handle when it discharged, gunpowder residue would have been found on his hand, but that Dr. Zaretski’s report did not indicate whether he tested Whitley’s hand for gunpowder residue. Ultimately, the jury rejected self-defense as a justification for the shooting and found defendant guilty of all charges. Defendant appealed, claiming that his right to confrontation had been violated.

In an unpublished opinion, the Appellate Division rejected defendant’s claim. Although the panel noted that defendant did not object at trial to Dr. Hua’s testimony, it nevertheless addressed the merits of defendant’s confrontation argument. The panel reasoned that Dr. Hua’s testimony did not run afoul of the Confrontation Clause because he testified about his own independent findings based, not only on Zaretski’s report, but also on the photographs of the autopsy and his personal examination of Whitley’s clothing. This Court granted certification, limited to whether the admission of the testimony by the pathologist who did not perform the autopsy violated defendant’s right of confrontation. 212 N.J. 103 (2012).

HELD: Defendant’s failure to object to the admission of the testimony on confrontation grounds and his decision to cross-examine the medical examiner constitute a waiver of his right of confrontation.

1. The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that the accused in a criminal trial has the right to be confronted with the witnesses against him. The Confrontation Clause prohibits the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for in-court testimony. The right of confrontation may be waived by the accused, as the Constitution does not compel a criminal defendant to insist that the State call a live witness who might damage his case. Because counsel and the defendant know their case and their defenses, they are in the best position to make the tactical decision whether to raise a Confrontation Clause objection. Therefore, defendant always has the burden of raising his Confrontation Clause objection.  

2. Where, however, the failure to object is so patently unreasonable and so clearly erroneous that no rational counsel acting within the wide range of professional norms would pursue such a course, a trial court may take notice of such an error. This is true even when the error has not been brought to the court’s attention by a party. When a defendant later claims that a trial court was mistaken for allowing him to pursue a chosen strategy – a strategy not unreasonable on its face but one that did not result in a favorable outcome – his claim may be barred by the invited-error doctrine. The doctrine is grounded in considerations of fairness, but will not apply automatically if to do so would cause a fundamental miscarriage of justice.  

3. Here, when the State offered Dr. Hua as an expert in the field of forensic pathology, defense counsel made no objection. Defendant then proceeded to extract favorable testimony from Dr. Hua to support his self-defense theory, emphasizing that the shot that killed Whitley was fired from several inches away, that the bullet followed a downward trajectory, and that gunpowder residue was found on Whitley’s clothing. These facts, the defense evidently concluded, were consistent with defendant’s account of a struggle for a gun in Whitley’s hand and with the gun accidentally discharging and killing Whitley. Additionally, Dr. Zaretski’s autopsy did not indicate that he tested for gunpowder residue on Whitley’s hands. The absence of such residue would have strongly suggested, and perhaps proven, that the gun was not in Whitley’s hand when it discharged and would have been damning to defendant’s case. The defense, arguably, was content to have Dr. Hua on the stand rather than Dr. Zaretski, not wanting to chance that Dr. Zaretski might offer damaging testimony.  

4. Defendant had the burden of raising his Confrontation Clause objection and failed to do so. The defense cannot be faulted for not insisting that the State call a live witness who might have highlighted weaknesses in the defense. The doctrine of invited error does not permit a defendant to pursue a strategy of allowing a substitute witness to testify, and then when the strategy does not work out as planned, cry foul and win a new trial. Here, the trial court could not have perceived that defense counsel was committing an error clearly capable of producing an unjust result by declining to object to the testimony of Dr. Hua. In addition, had defense counsel raised a timely objection, and had the trial court granted it, the State might have called Dr. Zaretski to testify, nullifying the Confrontation Clause issue. Having failed to raise or preserve his confrontation claim, defendant has waived it and the Court declines to reach the merits of defendant’s Confrontation Clause arguments.  

5. Confrontation Clause objections to the expected testimony of a State’s expert witness on the ground that he or she did not conduct, supervise, or participate in a scientific or other such test are best addressed before trial to avoid surprise or unfairness. Accordingly, at a reasonable time before trial, but no later than the pretrial conference, absent extenuating circumstances, the State should notify the defendant of its intention to call an expert witness who did not conduct, supervise, or participate in a scientific or other such test about which he or she will testify. After the State gives notice, the defense should be required, within ten days, or longer if necessary, to notify the State that it objects to the expected testimony of the expert witness on Confrontation Clause grounds. The Court refers to the Supreme Court Committee on Criminal Practice the crafting of a rule, with any needed improvements, on pretrial notice and demand.  

The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court for a technical correction to the judgment of conviction.