PEOPLE v. DENDEL

opinion based on an autopsy report prepared by two nontestifying medical examiners. The Supreme Court, in lieu of granting leave to appeal, vacated in part the judgment of the Court of Appeals and remanded the case to the Court of Appeals for reconsideration of this issue in light of Melendez-Diaz. People v Lewis, 485 Mich 878 (2009). On remand, this Court ruled that the autopsy report was not testimonial. The Court distinguished the autopsy report from the certificates in Melendez-Diaz because the certificates were prepared for the sole purpose of providing prima facie evidence against the defendant at trial, whereas the autopsy report was prepared pursuant to a duty imposed by statute. People v Lewis (On Remand), 287 Mich App 356, 362-363; 788 NW2d 461 (2010). The Court further commented that "unlike the way the certificates in Melendez-Diaz were used, Dr. [Carl] Schmidt [the testifying medical examiner] formed independent opinions based on objective information in the autopsy report and his opinions were subject to cross-examination." Id. at 363. The Court also noted that the autopsy report "was not outcome determinative" because "`[t]here is no dispute that a crime was committed, and the autopsy did not aid in establishing the identity of the perpetrator, which was the central issue in this case.`" Id., quoting Lewis, unpub op at 5. (The autopsy report was not necessary to establish that the victim died of multiple stab wounds.)

In Commonwealth v Avila, 454 Mass 744, 760; 912 NE2d 1014 (2009), the Massachusetts Supreme Judicial Court held that a substitute medical examiner could testify about his own opinions and conclusions concurring the cause of the decedent's death, though his opinions were based on findings set forth in an autopsy report prepared by his predecessor, who did not testify at trial. However, the court held that the substitute medical examiner could not testify about the facts and findings themselves on direct examination. Id. at 760-761. The court explained that an expert without first-hand knowledge of the facts at issue is permitted to state an expert opinion based on facts assumed in hypothetical questions or on data properly admitted into evidence. Id. at 761. The court stated:

Expert opinion testimony of this nature does not offend the confrontation clause as interpreted by the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ( Crawford) (confrontation clause prohibits admission of testimonial out-of-court statements unless declarant unavailable and defendant had prior opportunity to cross-examine declarant about statements), and most recently in Melendez-Diaz v. Massachusetts, [ 557 US ___] 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) (deeming certificates of forensic laboratory analysis offered in evidence in lieu of testimony as testimonial, and thus subject to Crawford, because certificates were affidavits prepared for sole purpose of serving as evidence at trial). [ Id. at 762.]

The Massachusetts Supreme Judicial Court held that the trial court erred when it allowed the substitute medical examiner to testify on direct examination regarding the findings in the autopsy report, but it concluded that the unpreserved error "did not result in a substantial likelihood of a miscarriage of justice" because the erroneously admitted testimony was cumulative of other properly admitted evidence. Id. at 763.

In State v Locklear, 363 NC 438; 681 SE2d 293 (2009), the state's chief medical examiner, Dr. John Butts, testified about the victim's cause of death on the basis of an autopsy report that he did not prepare. He also testified about the identification of the victim on the basis of forensic dentistry. The pathologist who performed the autopsy, Dr. Karen Chancellor, and the dentist who made the identification, Dr. Jeffrey Burkes, did not testify. Id. at 451. The North Carolina Supreme Court held that "[t]he admission of such evidence violated defendant's constitutional right to confront the witnesses against him. . . ." Id. at 452. However, the court held that the error was harmless beyond a reasonable doubt because the defendant's guilt was established by substantial admissible evidence, including his own confession. Id. at 452-453.

Following Melendez-Diaz, at least two courts have held that factual statements from nontestifying forensic analysts may be used to support the conclusions and opinions of testifying expert witnesses. In People v Johnson, 394 111 App 3d 1027; 915 NE2d 845 (2009), the prosecution introduced evidence that the defendant's DNA matched a semen stain found at the crime scene. The prosecution introduced the evidence through the testimony of a DNA analyst, Charlotte Word, who reviewed DNA testing conducted by others. Id. at 1029. Ms. Word testified that she was able to determine from the notes and documentation in the laboratory folder that the proper procedures were followed with the appropriate control tests. Id. Brian Schoon, who performed the tests, also testified, but the analysts who prepared the defendant's sample profile did not. Id. at 1030. The defendant argued that this violated his Confrontation Clause rights because he did not have the opportunity to cross-examine any of the analysts who prepared the profile. Id. The court found no error, stating:

Word, a Cellmark analyst, testified about the laboratory's procedures and practices regarding DNA testing, though she did not participate in the testing. She used the report that was prepared as the basis of her expert opinion that the proper procedures were followed in the analysis. Defendant's attorney was able to cross-examine Word about the basis of her opinion and called attention to the fact that she did not participate in the testing and that she assumed that the analysts properly documented each part of the testing, as required by Cellmark. The same reasoning holds true for Schoon. He used the Cellmark report as the basis for part of his opinion that the male DNA profiled [sic] obtained from the crime scene matched defendant's DNA. The Cellmark report was not offered to prove the truth of its contents, but was used as part of the bases for two experts' opinions. Accordingly, we find no Crawford violation in this case, and thus, no error. [ Id. at 1034.]

The court also noted that DNA analysis results are not "accusatory" because they might lead to either incriminatory or exculpatory results. Id. at 1035.

In Johnson, the Illinois court ruled that its analysis under Crawford was not altered by the Supreme Court's decision in Melendez-Diaz. The court quoted the footnote in Melendez-Diaz disclaiming the inference that all persons involved in the chain of custody, authenticity of the sample, or accuracy of the testing device were required to give live testimony. Id. at 1036-1037. The court also stated:

Significantly, the decision in Melendez-Diaz did not reach the question of whether the analyst who conducted the scientific tests must testify at a defendant's trial, which is the issue raised by defendant in the instant case. In contrast with certificates presented at trial in MelendezDiaz, Word and Schoon each testified in person as to their opinions based on the DNA testing and were subject to cross-examination. [ Id. at 1037.]

The court held that "the holding in Melendez-Diaz is distinguishable from instances in which a witness testifies at trial about scientific analyses in which he or she did not participate in the analysis. . . ." Id. at 1038.

The court in Johnson relied substantially on a decision from the California Court of Appeal, People v Rutterschmidt, 176 Cal App 4th 1047; 98 Cal Rptr 3d 390 (2009). In Rutterschmidt, two codefendants, Olga Rutterschmidt and Helen Golay, were accused of fatally drugging one of their victims, Kenneth McDavid, to collect money from fraudulently obtained life insurance policies. Golay, but not Rutterschmidt, objected on Confrontation Clause grounds to the testimony of Joseph Muto, the chief laboratory director of the Los Angeles County Department of Coronor, who testified about the presence and quantity of prescription drugs and alcohol found in McDavid's blood samples. The court summarized Muto's testimony regarding his involvement in the testing as follows:

Muto offered expert testimony as to the results of the toxicology analyses performed on samples of McDavid's blood. The testing was done under his supervision, and he signed the two reports containing the testing results. As the chief laboratory director, Muto had degrees and a license in toxicology and was a certified blood-alcohol analyst. He explained that in conducting toxicology analyses, criminalists in the laboratory performed tests on samples of biological material taken during autopsies. Four laboratory criminalists under his supervision performed the testing on McDavid's samples. Muto was familiar with all the criminalists in the laboratory. With regard to every toxicology report issued from his laboratory, he conducted either an administrative review or a peer review. In the former, before certifying the testing results, he would review the entire case to verify compliance with proper procedures and scientific standards, including quality control. As a peer reviewer, he acted as a second chemical analyst to ensure a sufficient informational foundation for the original analyst's conclusions. All final reports go out under his signature, reflecting that he examined the documentation and analytical work comprising the final report. [ Id. at 1071.]

Muto verified that the analyses were performed according to laboratory procedures and that he reviewed the reports. Id. at 1072.

The court in Rutterschmidt commented that there was "no federal Supreme Court or California authority for the proposition that Crawford precludes a prosecution scientific expert from testifying as to an opinion in reliance upon another scientist's report." Id. at 1073. The court rejected Golay's argument that the Supreme Court's decision in Melendez-Diaz warranted a different result. It distinguished the toxicological findings from the sworn certificates in Melendez-Diaz on the ground that the former were not sworn affidavits entered into evidence. The court stated:

Here, in contrast, the toxicological findings were not proved by means of an affidavit. As we have shown, Muto testified as a qualified expert, subject to cross-examination, that his review of data obtained under his supervision supported his conclusion as to the presence of alcohol and drugs in biological samples taken from McDavid's body. The Melendez-Diaz decision did not reach the question of whether such expert testimony runs afoul of Crawford. Indeed, the lead opinion speaks for a court majority only on the narrow basis set forth in Justice Thomas's concurring opinion — "that `the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.' [Citations.]" ( Melendez-Diaz, supra, [557] U.S. at p. ___, 129 S. Ct. at p. 2543, [ 174 L Ed 2d at 333] (cone. opn. of Thomas, J.).) Accordingly, the testimony challenged by defendant Golay does not fall within the Melendez-Diaz majority's holding. [ Id. at 1075.]

The court affirmed Golay's conviction. Id. at 1087. On December 2, 2009, the California Supreme Court granted Golay's petition for review, limited to the issue whether Muto's testimony violated Golay's right to confront witnesses and whether the decision in Melendez-Diaz affected the decision. People v Rutter-schmidt, 102 Cal Rptr 3d 281; 220 P3d 239 (2009).

We also take into consideration two cases decided before Melendez-Diaz that addressed the issue of hearsay evidence to establish objective data underlying an expert's opinion. In United States v Richardson, 537 F3d 951 (CA 8, 2008), a case involving DNA evidence that linked the defendant to a firearm, the prosecution called Alyssa Bance, a forensic scientist with the Minnesota Bureau of Criminal Apprehension. The court summarized Bance's testimony as follows:

Bance testified about DNA testing performed by another scientist in the office, Jacquelyn Kuriger. Bance testified that she personally "didn't actually receive the evidence in this case," but instead "received the case file with [Kuriger's] notes and results." Bance did, however, perform a peer review, in which she "look[ed] for basically everything down to that the i's are dotted and the i's are crossed. And if there's anything crossed out, are they initialed." Bance looked to make sure "everything is . . . complete from the start of the case in the analysis to the end of the DNA results and the report." Bance testified, generally, the role of the peer reviewer is to "go through all of the case notes and documentation" the initial scientist did "to be sure that everything has been done properly and documented properly." Bance testified that "[t]he peer reviewer in a DNA case also does a second independent analysis of the DNA data and compares" it to the first scientist's review "to be sure that the two scientists agree in all aspects of the DNA testing." [ Id. at 955-956.]

Bance "did not perform or witness any DNA testing of the samples," but "testified as to the tests Kuriger performed and the procedures and controls Kuriger used, as well as the results of Bance's own independent analysis of Kuriger's data." Bance "admitted her only knowledge of the tests was from reviewing the paper-work Kuriger generated, conducting a second independent analysis of Kuriger's data, and comparing her analysis of the data with Kuriger's analysis of the same data." Id. at 956. Reviewing the Confrontation Clause issue under the plain-error standard for unpreserved issues, the court concluded that the error, if any, was not plain error. The court noted that neither the United States Supreme Court nor the United States Court of Appeals for the Eighth Circuit had addressed the question whether DNA samples and related testimony were testimonial. It commented that other federal courts had ruled that DNA samples themselves are not testimonial. Id. at 960. The Court further held:

Additionally, the admission of Bance's testimony that Richardson's DNA evidence matched the DNA evidence found on the gun was not in error. Richardson argues that the tests and conclusions performed by Kuriger are testimonial; therefore Bance could not testify as to these without violating the Confrontation Clause. Bance, however, testified as to her own conclusions and was subject to cross-examination. Although she did not actually perform the tests, she had an independent responsibility to do the peer review. Her testimony concerned her independent conclusions derived from another scientist's test results and did not violate the Confrontation Clause. [ Id. at 960.]

The Supreme Court denied certiorari in Richardson a month before issuing its decision in Melendez-Diaz. Richardson v United States, 556 US; 129 S Ct 2378; 173 L Ed 2d 1299 (2009).

In United States v De La Cruz, 514 F3d 121 (CA 1, 2008), the United States Court of Appeals for the First Circuit rejected a defendant's argument that his Confrontation Clause rights were violated when the chief medical examiner for the state of New Hampshire, Dr. Thomas Andrew, testified as an expert regarding the victim's cause of death. Dr. Andrew had not performed the autopsy or conducted the toxicological tests, but he relied on autopsy and toxicology reports prepared by others. Id. at 132-133. The court ruled that autopsy reports are not subject to Confrontation Clause rights, stating as follows:

An autopsy report is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. Such a report is, we conclude, in the nature of a business record, and business records are expressly excluded from the reach of Crawford. [Id. at 133.]

The court was "unpersuaded that a medical examiner is precluded under Crawford from either (1) testifying about the facts contained in an autopsy report prepared by another, or (2) expressing an opinion about the cause of death based on factual reports — particularly an autopsy report — prepared by another." Id. at 134. The Supreme Court denied certiorari in De La Cruz only four days after it issued its opinion in Melendez-Diaz. De La Cruz v United States, 557 U.S; 129 S Ct 2858; 174 L Ed 2d 600 (2009).

Thus, at least one post-Melendez-Diaz case, Auila, 454 Mass 744, holds that statements asserting objective scientific data are testimonial statements subject to confrontation under the Sixth Amendment and, therefore, are not admissible absent an opportunity to cross-examine the witness who produced the statement. At least three post- Melendez-Diaz cases, including one from this Court, Lewis (On Remand), 287 Mich App 356, Johnson, 394 111 App 3d 1027, and Rutterschmidt, 176 Cal App 4th 1047, permit the introduction of such statements if they form the factual basis of a testifying expert witness's opinion. We also have two pre- Melendez-Diaz cases, Richardson, 537 F3d 951, and De La Cruz, 514 F3d 121, that hold that hearsay statements asserting objective scientific data are not testimonial under Crawford.

IV APPLICATION OF MELENDEZ-DIAZ AND ITS PROGENY

We hold that the statements here are testimonial. We would be bound by Lewis (On Remand), 287 Mich App 356, under the principle of stare decisis, MCR 7.215, if Lewis were factually analogous. However, the Court in Lewis ruled that the autopsy report was nontestimonial because it was prepared pursuant to a legal duty. Here, the AIT laboratory performed the glucose tests at the request of the medical examiner, who asked for the testing to investigate the possibility that Burley died of an insulin injection. Dr. Bernardino Pacris, the medical examiner, had originally concluded that Burley died of natural causes, but he reopened the case when the police informed him of suspicious circumstances that raised the question whether defendant may have used her insulin to end Burley's life. Dr. Pacris testified, "After talking again with the police officer, I believe there was an issue that insulin might have been given to Mr. Burley . . . . We contacted AIT laboratory. We requested tests to see if . . . it can provide us some light." He further acknowledged that he requested testing for glucose, C-peptides, and insulin because he learned about the possibility of insulin involvement in Burley's death. The medical examiner did not merely delegate to the AIT laboratory an ordinary duty imposed by law: he sought from the lab specific information to investigate the possibility of criminal activity. Under these circumstances, any statements made in relation to this investigation took on a testimonial character. Although Dr. Evans testified that toxicological testing is normally performed without any case background and without preconceived notions about what might be found, the testing here was performed in anticipation of a criminal trial, after the medical examiner's original findings had been challenged. The holdings in Crawford and Melendez-Diaz caution that, under the Confrontation Clause, defendant did not have to take Dr. Evans at his word about the test results, but instead had the right to show that "[f]orensic evidence is not uniquely immune from the risk of manipulation" or that "[a] forensic analyst responding to a request from a law enforcement official may feel pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution." Melendez-Diaz, 557 US at; 129 S Ct at 2536; 174 L Ed 2d at 326. For these reasons, the statement that Burley died with a glucose level of zero was a testimonial statement.

We further observe that in Lewis the cause of death was not a central issue because there was no question that the victim died from multiple stab wounds. Rather, the pivotal issue in Lewis was whether the defendant was the person who inflicted the stab wounds. The autopsy findings had no relevance to the issue of the perpetrator's identity. In contrast, Burley's cause of death is the primary factual question in this case. Evidence regarding the glucose finding does not conclusively prove defendant's guilt, because questions remain about the significance of the result and there remains the possibility that the death was suicide. However, it supports the prosecution's theory that Burley died of an insulin injection.

Of the aforementioned cases, we find Avila, 454 Mass 744, to be the most persuasive, the most consistent with the Supreme Court's holding in Melendez-Diaz, and the most factually analogous to this case. The court in Avila held that statements in an autopsy report prepared by a nontestifying medical examiner were subject to confrontation, notwithstanding that the statements served as the facts underlying the testifying expert's opinion. Similarly, the court in Locklear, 363 NC 438, concluded that statements in an autopsy report and forensic dentistry report were subject to confrontation. These holdings are fully consistent with Melendez-Diaz. Quoting Crawford, 541 US at 51, the Supreme Court in Melendez-Diaz explained that " ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially`" came within the "`core class of testimonial statements`" subject to the Confrontation Clause. Melendez-Diaz, 557 US at; 129 S Ct at 2531; 174 L Ed 2d at 321 (emphasis added). The Court concluded that statements certifying the results of qualitative and quantitative analysis of the substance in question came within this class because they were functionally equivalent to live, in-court testimony. Id. at; 129 S Ct at 2532; 174 L Ed 2d at 321. The Court rejected the argument that the analysts who prepared the statements were not "accusatory" witnesses in that they did not directly accuse the defendant of wrongdoing. Id. at; 129 S Ct at 2533; 174 L Ed 2d at 323.

As noted, the Melendez-Diaz Court also rejected the argument that "neutral scientific testing" obviated the need for confrontation. The Court disagreed that purportedly "neutral" testing was necessarily as neutral or as reliable as the prosecution suggested, commenting that forensic scientists are not immune from error or to pressures to speed up their work or obtain a particular result. Id. at; 129 S Ct at 2536-2537; 174 L Ed 2d at 325-326. The Court stated:

This case is illustrative. The affidavits submitted by the analysts contained only the bare-bones statement that "[t]he substance was found to contain: Cocaine." At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use "methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs." At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. [ Id. at; 129 S Ct at 2537; 174 L Ed 2d at 327 (citations omitted).]

And, as discussed, the Court in Melendez-Diaz rejected the proposition that the certificates were business records not subject to confrontation. The Court noted that the certificates were more akin to police reports because they were intended mainly for use in the courts. Id. at; 129 S Ct at 2538; 174 L Ed 2d at 328.

Here, the laboratory technicians' finding that Burley's glucose level was zero at the time of death was the fact on which Dr. Evans based his opinion that an insulin injection was a possible cause of his death. Although the statement concerning a glucose level of zero has no independently incriminating effect, it was nonetheless an accusatory statement under Melendez-Diaz because it supported the prosecution's theory that defendant had killed Burley by injecting him with insulin. Although the glucose-level finding was purportedly the result of neutral scientific testing, the Court in Melendez-Diaz ruled that such testing is not exempt from the Confrontation Clause because of the possibility of error or bias. Id. at; 129 S Ct at 2536; 174 L Ed 2d at 326. There was no testimony concerning how such tests are conducted or whether the tests of Burley's fluid samples were conducted in accordance with testing protocols. Moreover, Dr. Evans gave no testimony to establish that he directly supervised the tests or independently verified that all testing protocols were observed.

We also hold that the technicians' statement of a zero-glucose finding comports with the factors indicating a testimonial statement as delineated in Davis, 547 US 813, and analyzed in Bryant, 483 Mich 132. Their involvement occurred only after the police advised the medical examiner that defendant was suspected of injecting Burley with insulin, prompting the medical examiner to request toxicological analysis. Burley's autopsy and the subsequent toxicological testing were not a neutral or objective investigation of an unexplained death, but a criminal investigation into whether a homicide had occurred in the past. The technicians' statements were not made contemporaneously with an ongoing emergency, but in response to an inquiry about past events. Bryant, 483 Mich at 141.

We are unpersuaded that the federal circuit court decisions in Richardson, 537 F3d 951, and De La Cruz, 514 F3d 121, counsel a different outcome. The courts in those cases emphasized that the autopsy reports in question only formed the factual bases for the experts' conclusions and that the experts were not acting merely as a conduit for another's opinion. Theoretically, this approach could provide a basis for distinguishing the instant case from Melendez-Diaz, on the ground that the certificates in Melendez-Diaz were a final statement sufficient in themselves to establish an element of the crime, whereas the glucose-level finding was only a factual finding that Dr. Evans determined was consistent with the prosecution's theory of the cause of death. While we recognize the distinction, we are unconvinced that classifying a statement as a fact in support of an expert's conclusion rather than the conclusion itself negates evidentiary or Confrontation Clause concerns.

Previously, we ruled that the glucose report was admissible under the hearsay exception for public records. However, the Supreme Court in Melendez-Diaz, 557 US at; 129 S Ct at 2538; 174 L Ed 2d at 328, held that the cocaine-analysis certificates were not public records or business records exempt from confrontation because they were more akin to police reports. This holding applies by analogy to the glucose report, which was obtained in response to a medical examiner's request in the course of investigating a suspicious death. Moreover, under Crawford, out-of-court statements are not exempt from confrontation merely because they come within a hearsay exception, including hearsay exceptions traditionally considered to be imbued with indicia of reliability.

Furthermore, this case is distinguishable from Richardson, 537 F3d 951, because the testifying expert in Richardson had greater personal involvement in the testing process than Dr. Evans had in the glucose testing. In Richardson, a forensic scientist, Bance, performed a peer review, verifying that Kuriger, another scientist, conducted a thorough and proper analysis. Id. at 955-956. Although Dr. Evans supervised the AIT laboratory, he did not give any testimony regarding his supervision of the glucose testing.

Finally, we are unpersuaded by the holding in Rutterschmidt, 176 Cal App 4th 1047, that the toxicological findings were distinguishable from the certificates in Melendez-Diaz because the certificates were sworn affidavits made expressly for trial. The salient concern in Melendez-Diaz was that the prosecutor used hearsay statements in lieu of live testimony to establish a scientific fact that was key to the prosecution's case, denying the defendant the opportunity to cross-examine the persons who performed the tests and issued the certificates. The concern that this use of hearsay implicates the Confrontation Clause is not diminished when the statement is unsworn rather than sworn.

We therefore conclude that defendant's Sixth Amendment right to confront witnesses was violated when Dr. Evans was permitted to give hearsay testimony that other persons in the AIT laboratory determined that Burley's glucose level was zero at the time of his death.

V RELIEF

As noted, defendant failed to raise a timely objection to Dr. Evans's testimony on Confrontation Clause grounds. However, the trial in this case took place before Melendez-Diaz and Crawford were decided. The applicable test when defendant was tried, enunciated by the Court in Ohio v Roberts, 448 US 56, 65; 100 S Ct 2531; 65 L Ed 2d 597 (1980), provided that out-of-court statements made by unavailable witnesses could be admitted without violating a defendant's confrontation right if there were sufficient indicia of reliability under evidentiary hearsay rules. Under these circumstances, an objection based on the Confrontation Clause would have been futile. Furthermore, at the time of trial, MRE 703 did not require, as it now does, that the facts or data "upon which an expert bases an opinion or inference shall be in evidence." Also, pre- Crawford/MelendezDiaz caselaw in Michigan tended to regard autopsy reports and similar evidence as admissible hearsay exempt from the Confrontation Clause. Defense counsel's failure to object can be attributed to the absence of any positive legal authority that Dr. Evans's testimony violated the Confrontation Clause. Accordingly, defendant's objection on hearsay grounds, but not under the Confrontation Clause, was reasonable in light of the state of the law at the time of her trial.

Because autopsy reports could be considered public records prepared pursuant to the medical examiner's duties, MCL 52.202(1) and 52.207, they could be admitted into evidence pursuant to the hearsay exception for public records, MRE 803(8). In People v Rode, 196 Mich App 58, 68; 492 NW2d 483 (1992), rev'd on other grounds sub nom People v Harm, 447 Mich 325 (1994), this Court held that the chief medical examiner permissibly testified with regard to the observations recorded in a report prepared by a subordinate medical examiner. Conversely, in People v Shipp, 175 Mich App 332, 338-339; 437 NW2d 385 (1989), this Court held that "conclusions and opinions contained in an autopsy report are not admissible under MRE 803(6)." The Court in Rode, 196 Mich App at 68, distinguished Shipp on the ground that the hearsay statements from the report were limited to the medical examiner's observations. A toxicologist's determination of a decedent's glucose level is more in the nature of a factual observation than a conclusion or opinion: it is objective numerical data obtained from standardized testing rather than a subjective judgment derived from personal observations or professional evaluation. In this pre-Crawford, pre-Melendez-Diaz view of autopsy reports and similar evidence, defense counsel had insufficient cause to believe that an objection on Confrontation Clause grounds would have been anything but futile.

Fundamental fairness requires that this issue be reviewed as though it were fully preserved. See People v Shirk, 383 Mich 180, 196; 174 NW2d 772 (1970); People v Townsend, 25 Mich App 357, 361-362; 181 NW2d 630 (1970); see also Lonsby, 268 Mich App at 394-395. We review preserved issues of constitutional error to determine whether they are harmless beyond a reasonable doubt. "A constitutional error is harmless if `[it is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.`" People v Mass, 464 Mich 615, 640 n 29; 628 NW2d 540 (2001), quoting Neder v United States, 527 US 1, 18; 119 S Ct 1827; 144 L Ed 2d 35 (1999). In other words, if it is beyond a reasonable doubt that the jury would have convicted defendant on the basis of untainted evidence, defendant is not entitled to a new trial.

We recognize that, in our prior opinion, we reviewed defendant's Confrontation Clause claim as an unpreserved constitutional error. However, because our Supreme Court vacated that part of the opinion, we are not bound by that standard of review. See Black's Law Dictionary (7th ed), p 1546 (stating that the meaning of "vacate" is "[t]o nullify or cancel; make void; invalidate"). We further observe that, in Bryant, 483 Mich at 151-152, our Supreme Court treated a similar claim as an unpreserved constitutional error. However, the Court did not specifically rule that the plain-error rule applies to all cases in which controlling authority postdates the trial and a timely objection would have been pointless because of the state of the law at the time of trial. Indeed, the Court in Bryant prefaced its discussion with the phrase "[e]ven assuming that the error here is unpreserved" and later noted that caselaw at the time of the defendant's trial made it "completely reasonable" that the defendant did not offer an objection pursuant to the Confrontation Clause. Id. at 151 n 17. The Bryant Court further opined that, because Crawford was not decided until after the trial, the "defendant cannot be faulted for failing to raise the Confrontation Clause issue at the trial." Id. at 151 n 17. Our reading of Bryant indicates that the Court reviewed the issue under the plain-error rule merely to show that the defendant was entitled to relief even if he had to meet the higher standard of showing prejudicial error. However, we hold that under the circumstances of this case, and because there was a clear violation of Melendez-Diaz, defendant is not required to show her actual innocence or that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Rather, as noted, this issue merits review as though the issue had been preserved under the standard of harmless beyond a reasonable doubt.

The trial court specifically ruled, "I find that [Burley] really died from having a zero glucose level." This wording suggests that the trial court considered the zero-glucose finding in its holding. However, as our Supreme Court observed in Dendel, 481 Mich 114, ample other evidence supported defendant's conviction. Defendant argues that Dr. Evans should not have been allowed to testify about the finding of no glucose in Burley's system after he died. But Dr. Pacris testified before Dr. Evans, and he also noted that there was a lack of glucose in Burley's bodily fluids. As our Supreme Court stated, "Dr. Pacris explained that, although the glucose levels in a person's bodily fluids drop immediately after the person dies, the complete lack of glucose in Burley's vitreous fluids was consistent with a finding that Burley had been injected with insulin." Id. at 126. We further note that Dr. Pacris repeatedly attached little importance to a failure to find glucose in Burley's blood after he died because "glucose drops instantly once we die." Moreover, Dr. Pacris testified that Burley died of hypoglycemic shock, and he did not base his conclusion on the toxicological data. As our Supreme Court noted:

[Dr. Pacris] found acute tubular necrosis in the kidneys and dead cells in the proximal tubules of the brain, which are usually seen in people who have suffered hypoglycemic shock. Dr. Pacris ultimately concluded that the cause of death was complications from hypoglycemia, which can be caused by an insulin injection. In reaching this conclusion, he relied more on his anatomical findings and the circumstances surrounding the death rather than on the toxicological findings. Specifically, he relied on microscopic hypoxic changes in Burley's brain in concluding that Burley must have been comatose for at least 12 hours before he died at 4:00 p.m. on April 2, 2002. He testified that hypoxic changes to the brain, including red neurons on the hippocampus, are only manifested if the person has been comatose for about 12 hours. [ Id. at 126-127 (emphasis added).]

In her dissent, Justice KELLY agreed that "[t]he process by which Dr. Pacris determined the cause of death was founded on an anatomical basis and the circumstances surrounding the death rather than on toxicological findings." Id. at 142 (KELLY, J., dissenting).

As our Supreme Court also observed, defense counsel took the position at trial that "Burley had died either by injecting himself with insulin or from the side effects of numerous medications prescribed for him." Id. at 121 (majority opinion). The importance of the zero-glucose finding is severely undermined by this defense, which accepts the fact that Burley may have taken insulin and merely avers that Burley injected it into himself. The Supreme Court further stated in the opinion:

After defendant's arrest, she told police detectives that Burley had injected himself with insulin. During a later interview with a police detective, defendant said, "That poor dear, he killed himself for me." She told the detective that despite Burley's severely impaired vision and problems with holding things, he could inject himself with insulin. Defendant also told defense counsel that Burley had killed himself by an insulin injection and that she wanted him to pursue this theory of defense at trial. Defendant also testified that Burley had mental problems and that he had "talked suicide for 10, 15 years." She had informed two of Burley's doctors of his suicidal intentions. [ Id. at 120-121.]

It makes little difference that the fact-finder heard inadmissible testimony that Burley's fluids showed a lack of glucose, which would suggest that insulin was introduced into his system, in light of evidence that defendant believed Burley could have taken insulin.

Moreover, evidence other than the scientific findings played a significant role in defendant's conviction:

[S]trong circumstantial evidence supported the theory that defendant had given Burley an insulin injection.

Burley was difficult to pare for because of his multiple health problems, which included dementia. Defendant was under a great deal of stress as Burley's sole caregiver. Frustrated by Burley's demands, defendant had considered giving him a shot of insulin, which she knew could be lethal and would be difficult to detect in a deceased person. When her caregiving situation became worse, defendant unsuccessfully attempted to obtain assistance in caring for Burley from several sources. Less than 24 hours before Burley's death, defendant became "quite tearful and upset" when the nurse assisting defendant terminated her services because Burley had been uncooperative. Defendant admitted that she was at her "wit's end" in the middle of that night when the police declined to take Burley away after he caused a disturbance. In light of the facts leading up to Burley's death, the trier of fact could reasonably conclude that this nighttime incident caused defendant to finally snap and follow through with her idea to inject Burley with insulin. This finding would be consistent with Dr. Pacris's testimony that hypoxic changes in Burley's brain indicated that he had fallen into a coma from insulin-induced hypoglycemic shock at about 4:00 a.m., shortly after the police left.

The trier of fact could also infer that defendant's actions after Burley's death demonstrated her guilty state of mind and her attempt to cover up the crime. Defendant testified that when she suspected that Burley might be dead, she did not contact 911, but instead called a friend to come over. Defendant lied to Burley's family about his condition and hid his death from the only persons who might have questioned the cause of death and recalled her threat to inject him with insulin. Moreover, defendant managed to have Burley's body cremated before Burley's family could question the cause of death. She had also wanted Burley's body cremated without an autopsy being performed, but was unable to prevent the autopsy. This circumstantial evidence regarding defendant's state of mind further supports the prosecution's theory that defendant murdered Burley. [ Id. at 132-134.]

In light of Dr. Pacris's testimony, defendant's position at trial, and the circumstantial evidence surrounding Burley's death, we hold that it is clear beyond a reasonable doubt that a reasonable jury would have convicted defendant absent the inadmissible evidence regarding the toxicological results. Accordingly, the Confrontation Clause error was harmless beyond a reasonable doubt, and defendant is not entitled to a new trial.

Affirmed.

BORRELLO, PJ., concurred.