PEOPLE v. EDWARDS (ROBERT)Respondent’s Supplemental Reply Letter BriefCal.January 18, 2013 a merEAE COURT COPYHi KAMALA D. HARRIS State of California Attorney General DEPARTMENTOFJUSTICE 110 WEST A STREET, SUITE 1100 SAN DIEGO, CA 92101 P.O. BOX 85266 SAN DIEGO, CA 92186-5266 Public: (619) 645-2001 Telephone: (619) 645-2276 Facsimile: (619) 645-2191 E-Mail: Arlene.Sevidal@doj.ca.gov January 17, 2013 SUPREME COURT FILED Frank A. McGuire, Clerk Court Administrator and Clerk JAN 18 2013 Supreme Court of California 350 McAllister Street, First Floor San Francisco, California 94102-4797 Deputy ~ Frank A. McGuire Clerk RE: Supplemental Reply Letter Brief People v. Robert Edwards, Supreme Court of the State of California, Case No. §073316 Dear Mr. McGuire: Respondent submits this supplementalreply le tter brief in responseto this Court’s December 19, 2012, order for simultaneous su pplementalletter briefs limited to the question of“the effect, if any, of Williams v. Il linois (2012) __ U.S. ___ [132 S.Ct. 2221], and People v. Dungo (2012) 55 Cal.4t h 608, on the issues in this case.” Edwards contendsin his supplementalletter b rief that this Court did not address, in Dungo, whether the opinions of the autopsy surgeon were subject to the Confrontation Clause. Edwards also argues that professional opinions are testimonial under Williams becausethey are sufficiently formal and becau setheir primary purpose wasfor possible use in a criminaltrial. Contrary to Edwards’ as sertions, Williams and Dungo makeclear that Edwards’s confrontation rights were not violated. In Williams, five justices, Justice Thomas andt he plurality, agreed that most laboratory reports and other documents in a la boratory’s file are insufficiently formal to January 16, 2013 Page 2 qualify as testimonial statements. Justice Thomas opin ed in his concurrence that “the Confrontation Clause reaches “<< formalized testim onial materials,’”’ such as depositions, affidavits, and prior testimony, or statements resulting from ‘“‘formalized dialogue,” such as custodial interrogation. (Williams, supra, 132 S.Ct. at pp. 2259-2260.) According to Justice Thomas,the Cellmark report “lack[ {ed] the solemnity of an affidavit or deposition” because it was neither “a sworn nor a certifie d declaration of fact,” thus renderingit nontestimonial. (Ibid.) Conversely, he not ed that the certificates in Melendez-Diaz were sworn before a notary public by the analysts who hadtested a substance for cocaine and that the analyst’s blood-alcoho l report in Bullcoming v. New Mexico (2011) 564 U.S. __ [131 S.Ct. 2705, 180 L.Ed.2d 610] included a certificate with certain affirmations about the procedures used during th e test. (Williams, supra, 132 S.Ct. at p. 2260.) And, while Justice Thomas acknowledgedthat the certifie d report at issue in Bullcoming had qualified as testimonial becauseits autho r formally certified its accuracy (Williams, supra, 132 S.Ctat p. 2260), the four justices in the Williams plurality were not willing to go even that far in the Bullcoming caseitself. There, as dissenters, Tustices Kennedy, Alito, and Breyer, and Chief Justice Rober ts concluded that “impartial lab reports like the instant one, reports prepared by experience d technicians in laboratories that follow professional norms and scientific protocols,” are not the products of “formal interrogation in preparation for trial” that the Confrontati on Clause guards against. (Bullcoming v. New Mexico, supra, 131 S.Ct. at p. 2 726 (dis. opn. of Kennedy,J.); see also pp. 2723-2724[finding significance in the fact that th e Bullcoming \ab report was not a “sworn statement,” in contrast to the document s in Melendez-Diaz, which were “< quite plainly affidavits’”].) These four justices did not d elve deeply into the question of formality in Williams because they agreed that the Cellma rk report was not made with the necessary primary purposethat would potentially qualify it as testimonial. (Williams, supra, 132 8.Ct at pp. 2242-2244.) They noted, however, that “(t]he Cellmark report is very different from the sort of extrajudicial statements, su ch as affidavits, depositions, January 16, 2013 Page 3 prior testimony, and confessions,that the Confr ontation Clause was originally understood to reach.” (/d. at p. 2228.) In any event, as this Court noted in Dungo,“form ality is not enough to make an extrajudicial statement testimonial; the statem ent mustalso have a primary purpose pertaining to the investigation and prosecution of acrime. (People v. Lopez, supra, 55 Cal.4th 569, 582, 147 Cal.Rptr.3d 559, 286 P.3 d 469 [“all nine high court justices agree that an out-of-court statementis testimonialonl y if its primary purpose pertains in some fashion to a criminal prosecution”...].)” People v. Dungo, supra, 55 Cal.4th at p. 620, in. 5. ) The autopsy report upon which Dr. Fukumot orelied for his opinions had no such primary purpose. (/d.at pp. 620-621; Williams, supra, 132 S.Ct.at p. 2243.) Rather, the autopsy report soughtto determine how Deeble, the victim, died, not who was responsible. As this Court noted in Dungo, the p reparation of an autopsy report is governed by California's Government Code secti on 27491, which requires a county coroner to “inquire into and determine the cir cumstances, manner, and cause” of certain types of death. Someofthese deaths result from causes unrelated to criminal activities, while other deaths result from the commissio n of a crime. (People v. Dungo, supra, 55 Cal.4th at 620.) With respectto all of the statuto rily specified categories of death, however, the scope of the coroner's statutory duty to investigate is the same, regardless of whether the death resulted from criminalactivity . (Ibid.) Moreover, as noted in Dungo the usefulness of autopsy reports is not limited t o criminal investigation and prosecution, but serve many other equally important purposes . (Id., at p. 621.) Therefore, contrary to Edwards’ assertions, under Williams and Dun go,the observations of Dr. Richards recorded in his autopsy report do not reach the le vel of formality required to qualify as testimonial, as it was not an affidavit or a swor n declaration of fact, nor did the statement have criminal investigation as the primary purpose . Moreover, while Dr. Fukumoto mentioned t hat Dr. Richards also came to the same conclusion about the cause of death, Dr. Fuk umoto’s opinion was his own, based on his January 16, 2013 Page 4 personal review of the autopsy photographs,slides, x-rays an d description of the body contained in the report, and Dr. Fukumoto was subject to cross examination. (XI RT 2123-2124, 2145.) Dr. Fukumoto's description to the jury of o bjective facts aboutthe condition of Deeble’s body, facts he derived from Dr. Richar d's autopsy report andits accompanying photographs,slides, and x-rays did not give Edw ardsa right to confront . and cross-examine Dr. Richards. The facts that Dr. Fukumoto r elated to the jury were not so formal and solemnas to be considered testimonial for purpo ses of the Sixth Amendment's confrontation right, and criminalinvestigation wa s not the primary purpose for recording the facts in question. Edwards’ Confrontation Cl ause rights were not violated. Finally, Edwards’ argumentin his supplementalletter brief that the State conceded that the defendant’s right to confront witnesses was violated by t he admission of hearsay testimony regarding the opinionofthe autopsy surgeon in Merolil lo v. Yates (9th Cir. 2011) 663 F.3d 444,is inapposite. In Merolillo, the state did not concede that there was Confrontational Clause violation. Rather, the California Court of Ap peal had already held thatthe trial court erred in admitting Dr. Garber's opinion test imony, but found the admission harmless. (Jd. at p. 452.) The only issue certified for ap peal before the Ninth Circuit was “whether petitioner was prejudiced by the admission of hearsay evidence that the victim's death was caused by brain trauma.” (Jd., at pp. 452-453 .) Therefore, there was no concessionbythestate that the admission of the hearsay opi nion of the autopsy surgeon violated the petitioner’s Confrontation Clause rights. In an y event, Ninth Circuit authority is not binding on this Court. (See People v. Bradford (199 7) 15 Cal.4th 1229, 1292.)! ! Edwards also mentions in his supplementalletter brief that a questi on the prosecutor asked Sgt. Jessen, “Isn't it true that in your mind, based up on information you had received from other people, lab personnel,that thislist of peopl e that the defense had mentioned as people whohad provided inadequate samples were elimi nated as donors of semen and fluids at the crime scene?” (X RT 2838)and Sgt. Jessen ’s subsequent (continued...) January 16, 2013 Page 5 Forall the reasonsset forth in Respondent’s Brief, Supplemen talBrief, the Supplemental Letter Brief and this Supplemental Reply Lette r Brief, Edwards’ claim that his Confrontation Clause rights were violated by the admission ofDr. Fukumoto’s testimony regarding the autopsy conducted by Dr. Richards should be rejected. Sineerely, /} [bv ARLENE A. SEVIDAL Deputy Attorney General For KAMALA D. HARRIS Attorney General AAS:Ir SD1998XS0010 70675539 (...continued) affirmative answer,violated the Confrontation Clause. As explained in Respondent’s SupplementalBrief at pages 61 to 69, Edwards’ Confrontation Claus e rights were not violated because no out of court statements by lab personnel were adm itted for the truth of the matter asserted, and Sgt. Jessen was available for cross-examin ation. Neither Dungo nor Williams assist Edwardsonthis issue becauseit is clear the Confrontation Clause and Crawford were not implicated. DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Robert Edwards No.: S073316 ] declare: I am employedin the Office of the Attorney General, whichis the office of a memb erof the California State Bar, at which member's direction this service is made. I am 18 y ears of age or older and nota party to this matter. I am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in t he internal mail collection system at the Office of the Attorney General is deposited with the Unite d States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On January 17, 2013,I served the attached SUPPLEMENTAL REPLY LETTER BRIE Fby placing a true copy thereof enclosed in a sealed envelope in the internal mail collec tion system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Michael G. Millman Quin A. Denvir Executive Director Attorney at Law California Appellate Project (SF) 1614 Orange Lane 101 Second Street, Suite 600 Davis, CA 95616 San Francisco, CA 94105 Atty. for Def. (2 copies) The Honorable Tony J. Rackauckas The Honorable John J. Ryan Orange County District Attorney's Office Orange County Superior Court 401 Civic Center Drive West 700 Civic Center Dr. West, Dept. 45 Santa Ana, CA 92701 Santa Ana, CA 92701 Michael Laurence Governor's Office Executive Director Attn: Legal Affairs Secretary Habeas Corpus Resource Center State Capitol, First Floor 303 Second Street, Suite 400 South Sacramento, CA 95814 — E-15 San Francisco, California 94107 ] declare under penalty of perjury under the laws of the State of California the foregoingi s true and correct and that this declaration was executed on January 17, 2013, at Sa Diego, California. CG Laura Ruiz x phiie. LLVile- Declarant Siknature $D1998XS0010 70675493. doc
