November 23, 2011 – State of New Mexico v. Leroy Jaramillo, No. 28,517

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date:

NO. 28,517

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

LEROY JARAMILLO,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen Quinn, District Judge

Gary K. King, Attomey General

Francine A. Chavez, Assistant Attomey General
Santa Fe, NM

for Appellee

Liane E. Kerr
Albuquerque, NM

for Appellant

OPINION
KENNEDY, Judge.
{1} 	When a deputy medical examiner left the county medical examiner’s office to
go into private practice and subsequently required a hefty fee from the State for his
trial testimony, the State put his former supervisor on the witness stand to testify to
the autopsy that the first pathologist had conducted. In the course of the supervisor’s
testimony during direct examination, he read to the jury some contents of the autopsy
report prepared by the absent doctor. 	The entire report was thereafter admitted as
evidence and presented to the jury. To the extent the district court admitted the report
as an exhibit, the admission was constitutional error as it violated Defendant’s
confrontation rights. Thus, we reverse Defendant’s conviction.
I. 	BACKGROUND
{2} 	In October 2004, ten-month-old Cristyan Ibarra was taken to the emergency
room in Clovis, New Mexico by his mother and Defendant. Owing to his symptoms,
which included internal cranial bleeding, Cristyan was transported by air to Lubbock,
Texas. There, he was pronounced dead several days later. Dr. Sridhar Natarajan, who
at that time was employed by the Lubbock County Medical Examiner’s Office,
performed Cristyan’s autopsy. 	Dr. Natarajan determined the cause of death to be
closed head injuries and ruled the manner of death to be a homicide. The findings in

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the autopsy report were reviewed, confirmed, and signed off in a separate opinion
document by four other medical examiners in the Lubbock County Medical
Examiner’s Office. 	Dr. Thomas Parsons, who later testified about the cause of
Cristyan’s death, was not one of these signatories.
{3} 	Dr. Natarajan eventually left the Lubbock County Medical Examiner’s Office.
When he was contacted by the State to testify at the trial in this case, he stated that he
required a fee of $60,000 for his testimonial services. The State concluded that this
sum of money was beyond its reach and made no further efforts to obtain his services.
At trial, the State called Dr. Parsons, the Deputy Chief Medical Examiner for Lubbock
County, to establish the cause and manner of Cristyan’s death.
{4} 	Prior to Dr. Parsons being examined, the defense objected to any admission of
the autopsy report into evidence based on the Confrontation Clause of the Sixth
Amendment to the United States Constitution. The objection specifically asserted that
the report was testimonial in nature and that Dr. Natarajan had not been shown to be
unavailable as a witness. It is undisputed that the defense did not have an opportunity
to cross-examine Dr. Natarajan. Defendant insisted that for the report and its contents
to be admissible, its author, Dr. Natarajan, would be required to appear to testify about
its contents. Defendant’s specific objection was that any use of or reference to the

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report by Dr. Parsons would be improper because it “would [admit] otherwise . . .
unpresentable [evidence by] just filtering it through an expert witness.”
{5} 	Nonetheless, the district court admitted the report and permitted Dr. Parsons to
testify to its contents. Dr. Parsons confirmed that he was testifying for Dr. Natarajan.
At the district attorney’s request, Dr. Parsons read directly from the autopsy report
when testifying about Cristyan’s age and the circumstances leading up to his death.
Dr. Parsons also testified to Dr. Natarajan’s specific observations and notations made
during the autopsy. In addition, a section of the admitted autopsy report, signed by
five non-testifying pathologists, stated: “It is our opinion that Cristyan . . . died as a
result of [c]losed [h]ead [i]njuries. . . . The manner of death is classified as a
[h]omicide.” The report identified one other person as having assisted in the autopsy
and that person did not testify at trial. 	Subsequently, Defendant was convicted of
child abuse resulting in death. 	He now appeals on the ground that his right to
confrontation was violated.
II. 	DISCUSSION
{6} 	Defendant argues that the district court erroneously admitted the autopsy report
and improperly allowed Dr. Parsons to testify to the substantive findings that Dr.
Natarajan recorded in the report. 	Because admission of the autopsy report alone

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constituted prejudicial error mandating reversal, we need not address Defendant’s
argument regarding Dr. Parsons’ testimony.
{7} 	The district court explicitly admitted the report as information of the type upon
which medical examiners would typically rely in rendering their opinions. At trial,
Defendant objected to the report’s admission on the ground that Defendant had no
opportunity to confront Dr. Natarajan. 	The State responded that, “if [Dr. Parsons]
believes the information in the report is accurate, that should be able to be entered into
evidence. And[,] of course, every expert’s going to be looking at reports and things
of that nature to render opinions.” 	In making its ruling, the district court referred
directly to its belief that Crawford v. Washington, 541 U.S. 36, 51 (2004), did not
address the “expert witness section of the New Mexico [R]ules of [E]vidence [with
regard to] an expert testifying from a prior report using [that] as a basis for his
opinion.” We therefore review the district court’s admission of the report as pursuant
to Rule 11-703 NMRA and consider whether the admission of the report was a
violation of Defendant’s rights under the Confrontation Clause.
A. 	Confrontation Clause Requirements
{8} 	“The Confrontation Clause guarantees the accused in a criminal trial the right
to be confronted with the witnesses against him, regardless of how trustworthy the
out-of-court statement may appear to be.” State v. Mendez, 2010-NMSC-044, ¶ 28,

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148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted). “As a
rule, if an out-of-court statement is testimonial in nature, it may not be introduced
against the accused at trial unless the witness who made the statement is unavailable
and the accused has had a prior opportunity to confront that witness.” Bullcoming v.
State, 131 S. Ct. 2705, 2713 (2011). Thus, we now analyze whether (1) the statements
in the autopsy report were testimonial, (2) Defendant had a prior opportunity to cross-
examine the declarant, and (3) the declarant was unavailable. 	We first address
whether the statements were testimonial because “only testimonial statements cause
the declarant to be a witness within the meaning of the Confrontation Clause.” State
v. Aragon, 2010-NMSC-008, ¶ 6, 147 N.M. 474, 225 P.3d 1280 (internal quotation
marks and citation omitted). 	“Questions of admissibility under the Confrontation
Clause are questions of law, which we review de novo.” Id.
1. 	The Autopsy Report in This Criminal Case was Testimonial
{9} 	The United States Supreme Court held in Bullcoming that “[a] document
created solely for an evidentiary purpose, . . . made in aid of a police investigation,
ranks as testimonial.” 	131 S. Ct. at 2713 (internal quotation marks and citation
omitted); Melendez-Diaz v. Mass., 129 S. Ct. 2527, 2531 (2009) (holding that a
statement is testimonial if the declarant would reasonably expect the statements to be
used prosecutorially). 	In Aragon, the New Mexico Supreme Court, adopting

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Melendez-Diaz, analyzed, in the context of reports of chemical analysis, what sort of
forensic report might constitute a testimonial statement. Aragon, 2010-NMSC-008,
¶ 2. 	One factor the Aragon Court examined was the extent to which the person
preparing the report exercised independent judgment and analysis. Id. ¶ 30. In this
case, Dr. Natarajan’s report containing his findings and conclusions resulting from
Cristyan’s autopsy included an exercise of judgment and analysis on his part, as he
formed opinions based on his medical training and as he interpreted factual findings.
{10} 	Furthermore, the Aragon Court stated that a testimonial statement “is a solemn
declaration or affirmation made for the purpose of establishing or proving some fact.”
Id. ¶ 6 (internal quotation marks and citation omitted). 	In particular, Aragon
considered whether the witness’s “statements go to an issue of guilt or innocence.”
Id. ¶ 8. In this case, the autopsy report was made with the intention of the medical
examiner to establish the cause and manner of Cristyan’s death. 	The medical
examiner’s finding of homicide was critical to substantiate allegations that Defendant
abused Cristyan and caused his death. Therefore, the autopsy report was prepared with
the purpose of preserving evidence for criminal litigation. In this case, the face of the
autopsy 	report 	itself 	states 	that 	an 	autopsy 	was 	requested 	because 	of 	“the
circumstances” of Cristyan’s death, being a severe brain injury of a sort commonly
associated with trauma. By the time the medical examiner had determined the cause

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of death to be closed head injuries and the manner of death to be homicide, there was
no doubt this would be used against someone in a criminal prosecution. NMSA 1978,
Section 24-11-7 (1973) requires an autopsy with complete findings when a “medical
investigator suspects a death was caused by a criminal act or omission or the cause of
death is obscure[.]”
{11} 	Furthermore, Dr. Parsons testified that the report was prepared for use in
litigation. 	There is no reason to suspect that a pathologist with considerable
experience and knowledge of statutory duties to report suspicious deaths to law
enforcement officers would not anticipate criminal litigation to result from his
determination that the trauma-related death of a child was the result of homicide. The
statements in the report were made to establish the facts related to Cristyan’s cause of
death; ruling the death a homicide reflects directly on the issue of a defendant’s guilt
or innocence. 	No question existed that the report would support and be used in a
criminal prosecution.
{12} 	The State advanced a number of contentions in its briefing to support the
autopsy report being considered to be outside of what is considered a testimonial
statement, all of which are unavailing or predominantly based on law preceding
Melendez-Diaz. In its supplemental brief, the State argues that Melendez-Diaz and
Aragon do not address the issues in this case. First, the State argues that “[u]nlike

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[the] blood alcohol reports or chemical forensic reports, Texas medical examiners do
not solely prepare autopsy reports for use in future prosecutions [because the] reports
are prepared pursuant to [a] duty imposed by law to investigate many deaths which
are not the subject of criminal prosecution.” 	See Tex. Code Crim. Proc. Ann. art.
49.25, § 6 (West 2003) (listing the instances where the medical examiner has a duty
to investigate a death). The State insists that the autopsy was not performed at the
request of law enforcement and was non-adversarial, relying on Garcia v. State, and
was thus non-testimonial. 868 S.W.2d 337, 341-42 (Tex. Crim. App. 1993) (en banc).
The State’s use of Texas law is unavailing both in Texas and here in New Mexico.
{13} 	Texas courts have specifically rejected the State’s argument that a medical
examiner’s statutory duty to conduct an inquest whenever there is an unexplained
death renders the report non-testimonial. 	See Wood v. State, 299 S.W.3d 200, 210
(Tex. Crim. App. 2009) (holding that an autopsy report was testimonial when it was
reasonable to assume that the pathologist “understood that the report containing her
findings and opinions would be used prosecutorially”). More importantly, in New
Mexico, any sudden, violent, or untimely death, the cause of which is unknown, must
be reported to law enforcement. NMSA 1978, § 24-11-5 (1975). Medical examiners
are obligated by statute to report their findings directly to the district attorney in all
cases they have investigated. NMSA 1978, § 24-11-8 (1973). This forensic role is

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entirely in keeping with the medical examiner’s purpose to “serve the criminal justice
system as medical detectives by identifying and documenting pathologic findings in
suspicious or violent deaths and testifying in courts as expert medical witnesses.”
Strengthening Forensic Science in the United States: A Path Forward 244 (Nat’l
Research Council of the Nat’l Acads. 2009).
{14} 	Because Dr. Natarajan’s report was prepared to document a homicide and
intended for use in prosecution of a criminal case, we conclude that the purpose of the
autopsy report was to provide prosecutorial evidence. 	Thus, we hold that the
statements contained in the report were testimonial.
2. 	Defendant had No Opportunity to Cross-Examine Prior to Trial
{15} 	“A 	criminal 	defendant 	is 	guaranteed 	the 	right 	to 	an 	effective
cross-examination.” Aragon, 2010-NMSC-008, ¶ 25 (internal quotation marks and
citation omitted). 	It is undisputed in this case that Defendant had no previous
opportunity to cross-examine either the four other pathologists signing the summary
statement in the report or Dr. Natarajan, who, himself, only testified at the grand jury
hearing that resulted in Defendant’s indictment. Dr. Natarajan’s exercise of judgment
in creating the report should be subject to cross-examination as to its basis in his
training in, and the application of, forensic pathology. See Bullcoming, 131 S. Ct. at
2714 (stating that “representations, relating to past events and human actions[,] . . . are

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meet for cross-examination”). 	Cross-examination is the “crucible” in which the
opinions of an expert, the basis for those opinions, and the methods producing them
are tested. Aragon, 2010-NMSC-008, ¶ 32. Foreclosing on the opportunity to cross-
examine could create an injury of constitutional magnitude. Even in scientific matters
that are performed and documented frequently and routinely, cross-examination is
necessary to explore the boundaries of the expert’s qualifications and correct
application of scientific techniques and methods. In matters where experts base their
opinions on circumstance-dependent factors, this need is acute. See Randy Hanzlick,
John C. Hunsaker III, & Gregory J. Davis, 	A Guide for Manner of Death
Classification 4 (Nat’l Assoc. of Med. Exam’rs, 1st ed. 2002) (“All [medical
examiners] agree, however, on the fundamental premise that manner of death is
circumstance-dependent, not autopsy-dependent.”).
{16} 	Defendant’s inability to cross-examine the declarant’s testimonial statements
is dispositive in this case. Where the government seeks to admit a testimonial out-of-
court statement, it must establish that the defendant had a prior opportunity to cross-
examine the declarant. State v. Rivera, 2008-NMSC-056, ¶ 18, 144 N.M. 836, 192
P.3d 1213. As Defendant had no prior opportunity to cross-examine the declarant, we
need not concern ourselves with his availability as a trial witness. In the absence of
the cross-examination requirement in satisfaction of the Confrontation Clause, we

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hold that admission of the autopsy report resulted in the violation of Defendant’s right
to confrontation.
B. 	The District Court Improperly Admitted the Autopsy Report Under Rule
11-703
{17} 	“We review the admission of evidence under an abuse of discretion standard
and will not reverse in the absence of a clear abuse.” See State v. Sarracino, 1998-
NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. When the district court exercises its
discretion based on a misapprehension of the law, it abuses its discretion. 	State v.
Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209. 	Here, the district
court’s misapprehension of the law regarding the admissibility of facts and data
underlying Dr. Parsons’ testimony is inextricable from the confrontation violation.
{18} 	Although we have held that the admission of the autopsy report violated
Defendant’s confrontation rights, we briefly address the State’s argument that the
district court properly admitted the report under Rule 11-703, which provides:
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their probative
value in assisting the jury to evaluate the expert's opinion substantially
outweighs their prejudicial effect.

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{19} 	Our Supreme Court’s opinion in Aragon disposes of this argument. First, the
Court in Aragon stated that “[o]nce it has been established that the Confrontation
Clause does not bar admission of the statement, the rules of evidence govern whether
the statement is admissible.” 	2010-NMSC-008, ¶ 6. 	Thus, if the Confrontation
Clause bars use of the statement, the rules of evidence cannot make it admissible and
that ends the inquiry.
{20} 	Second, Aragon stated that an expert could testify about his or her own opinion
based on the facts and data contained in a non-testifying expert’s report, but only if
the testifying expert “unequivocally testified that it was his opinion,” not the opinion
of the non-testifying witness, and if the testifying expert testified that the facts and
data are the types relied upon by experts in the field. 	2010-NMSC-008, ¶ 33.
Consistent with this analysis, had Dr. Parsons made it clear that he was stating his own
independent opinions and that he relied on the facts contained in Dr. Natarajan’s
report because it contained the types of facts and data upon which medical examiners
rely, then Dr. Parsons’ testimony may have been admissible. However, Dr. Parsons
did not testify to this effect and, thus, the narrow exception noted in Aragon is not
applicable. Furthermore, even under such a narrow exception, the report itself and the
facts contained in it would not be admissible absent further action by the court. See
Rule 11-703 (“Facts or data that are otherwise inadmissible shall not be disclosed to

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the jury by the proponent of the opinion or inference unless the court determines that
their probative value in assisting the jury to evaluate the expert's opinion substantially
outweighs their prejudicial effect.”); see also Aragon, 2010-NMSC-008, ¶ 23 (noting
that reliance upon hearsay facts or data not in evidence “does not necessarily make the
hearsay itself admissible”). Admission of the other five doctors’ opinions contained
in the report and Dr. Parsons’ testimony concerning Dr. Natarajan’s opinions are even
more prejudicial, and the admission of other experts’ opinions has in the past
constituted reversible error. O’Kelly, 94 N.M. at 76, 607 P.2d at 614; Aragon, 2010-
NMSC-008, ¶ 24.
{21} 	The district court in this case was operating under the misperception that the
information contained in Dr. Natarajan’s autopsy report, upon which Dr. Parsons
relied, was admissible because Dr. Parsons relied on it. 	Whether the reliance was
justifiable is of no importance. Komis, 114 N.M. at 666 n.4, 845 P.2d at 760 n.4. The
district court’s position was not supported by law and caused the erroneous admission
of otherwise inadmissible hearsay evidence in the report, in particular, Dr. Natarajan’s
opinions and the opinions of other medical examiners based on their review of the
autopsy. Admission of this information through Dr. Parsons’ testimony was an abuse
of discretion under Rule 11-703 and inadmissible because it violated Defendant’s
right to confrontation.

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C. 	Erroneous Admission of the Report was not Harmless Error
{22} 	Admission 	of 	the 	report 	violated 	Defendant’s 	constitutional 	right 	to
confrontation. “When a constitutional trial error has been committed, the burden is
on the [s]tate to demonstrate the error is harmless beyond a reasonable doubt. The
central focus of this inquiry is whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction.” State v. Romero,
2006-NMCA-045, ¶ 70, 139 N.M. 386, 133 P.3d 842 (internal quotation marks and
citations omitted). We may consider three factors to determine whether the error was
harmless; no one factor is dispositive as we consider them together. 	Aragon,
2010-NMSC-008, ¶ 35. We evaluate whether there was “(1) substantial evidence to
support the conviction without reference to the improperly admitted evidence; (2) such
a disproportionate volume of permissible evidence that, in comparison, the amount of
improper evidence will appear minuscule; and (3) no substantial conflicting evidence
to discredit the [s]tate’s testimony.” State v. Barr, 2009-NMSC-024, ¶ 56, 146 N.M.
301, 210 P.3d 198 (footnote omitted).
{23} 	We do not reweigh the evidence in making this determination. 	Id. ¶ 57.
“[H]armless error analysis does not center on whether, in spite of the error, the right
result was reached. Rather, the focus is on whether the verdict was impacted by the
error.” 	Aragon, 2010-NMSC-008, ¶ 35 (internal quotation marks and citation

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omitted). “Weighing these factors, a court must decide if it can conclude with the
requisite level of certainty that an error did not contribute to the jury’s verdict.” State
v. Macias, 2009-NMSC-028, ¶ 39, 146 N.M. 378, 210 P.3d 804. 	New Mexico
appellate courts in the past have held that the admission of another expert’s
inadmissible evidence is reversible error. Aragon, 2010-NMSC-008, ¶ 24; O’Kelly,
94 N.M. at 77, 607 P.2d at 615; Sewell v. Wilson, 101 N.M. 486, 488-89, 684 P.2d
1151, 1153-54 (Ct. App. 1984).
{24} 	Here, the cause and manner of death as human caused, rather than accidental,
was critical. The testimony from the medical examiner regarding Cristyan’s injuries
and the cause of his death were the crux of the case. The wrongfully admitted report
bolstered the credibility of this testimony with the unchallenged corroborative
opinions of five non-testifying pathologists. The impact of Dr. Parsons’ testimony is
inseparable from the bolstering it received from the inadmissible original source of his
information and the four other pathologists’ signatures attesting to its conclusions.
Thus, to remove all constitutionally offensive evidence as to the cause and manner of
death, there would not be substantial evidence to convict Defendant. The testimony
of Dr. Parsons was heavily intertwined with the report and was supported by it. Its
impact cannot be regarded as minuscule. No other evidence could have proven that
Cristyan’s death was a homicide caused by Defendant’s abuse. 	Furthermore, Dr.

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Parsons’ statement to the jury that he was testifying for Dr. Natarajan, and the
admission of the report and its included opinions provided the jury with an
overwhelming quantity of unconfronted testimonial evidence that was improperly
admitted. The report was the crux of the State’s case, proving that Cristyan’s death
was a homicide.
{25} 	This constitutional violation rises to the level of harmful error because we
cannot be certain that the wrongfully admitted evidence did not impact the verdict.
Accordingly, we reverse Defendant’s conviction and remand this matter for a new
trial.
III. 	CONCLUSION
{26} 	In light of the court’s improper admission of the autopsy report in violation of
Defendant’s confrontation right, we reverse the district court and remand for a new
trial consistent with our holdings here.
{27} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:

CELIA FOY CASTILLO, Chief Judge

CYNTHIA A. FRY, Judge

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