Michael Torres v. State of Indiana

KIRSCH, Judge,

dissenting.

In Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011), the United States Supreme Court held that with respect to autopsy reports, the “[t]he accused’s right is to be confronted with the analyst who makes the certification” and that “surrogate testimony” does not satisfy the constitutional requirement. Here, the only testimony to the cause and manner of death was the surrogate testimony of Dr. Joyce Carter who rendered her opinions based solely upon the autopsy report and autopsy photographs done by another pathologist.

The admission of this testimony violated the constitutional confrontation rights of the accused. Moreover, on the conflicting facts and inferences presented by the record before us, I cannot conclude that the error was harmless beyond a reasonable doubt.

I respectfully dissent and would reverse the conviction and remand for a new trial.