Rollins v. State
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Wesley Allen Rollins v. State of Maryland No. 19, September Term, 2005 BUSINESS OR PUBLIC RECORD S EXCEPTION TO THE HEARSAY RULE ADMISSIBILITY OF HE ARSA Y EVID ENCE UND ER TH E BUS INESS O R PUB LIC RECORDS EXCEPTION AUTOPSY REPORTS WHERE OPINIONS ARE REDACTED ARE PROPERLY ADMITTED UNDER THE BU SINESS OR PU BLIC RECORDS EXCEPTION Opinions, speculation, and other conclusions drawn from the objective findings contained in autopsy repo rts are testimon ial and shou ld be redacted before the report is adm itted into evidence. In this case, the autopsy report, as redacted, contained non-testimonial hearsay statements in nature that were admissible under the business or public records exception to the hearsay rule. Because all testimonial stateme nts in nature were redacted from the autopsy report prepared by Dr. Pestaner prior to admission into evidence, and because the autopsy report fell within the business and public records exception to the hearsay rule, Rollins s rights under the Confrontation Clause, Amendment VI of the U.S. Constitution and A rticle 21 of the M aryland D eclaratio n of R ights w ere not v iolated. In the Circu it Court for B altimore C ounty Civil No. 01CR4266 IN THE COURT OF APPEALS OF MARYLAND No. 19 September Term, 2005 ______________________________________ WESLEY ALLEN ROLLINS v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. _______________________________________ Opinion by Greene, J. _____________________________________ Filed: May 5, 2006 After a jury trial in the Circuit Court for Baltimore County, petitioner, Wesley Allen Rollins, was convicted of the crimes of first-degree felony murder, second-degree m urder, robb ery, and burg lary relating to the death of Irene Ebberts. Petitioner seeks review of the judgment of the Court of Specia l Appeals affirming his convictions. We granted certiorari, Rollins v. State, 387 M d. 462, 8 75 A.2 d 767 ( 2005) , to review the denial of p etitioner s pretrial motion to exclude the testimony of deputy medical examiner, Dr. Mary G. Ripple, allegedly derived from hearsay information unrelated to medical findings in the autopsy report for Ms. Ebberts that was prepared by former Assistant Medical Examiner, Dr. Joseph Pestaner. Petitioner alleges that because Dr. Ripple s opinion was based on hearsay statements contained in the autopsy report from witnesses who m ay or may not testify at trial, Rollins s right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and under Article 21 of the Maryland Declaration of Rights 1 would be violated by the adm issio n of such testim ony. In addition, we shall review the trial court s alleged error in the ad mission of Dr. Ripp le s expert testim ony relating to the time and manner of Ms. Ebberts s death. Petitioner presents two question s for our review, which we have rephrased:2 1 The Confrontation Clause of the Sixth Amendment of the United States Constitution, and Article 21 of the Maryland Declaration of Rights, provide that the accused in all criminal prosecutio ns shall enjoy the right to be confronted with the witnesses against him. U.S. C ONST. amen d. VI.; M d. Con st., Art. 21 . 2 Petitioner s original questions presented were: 1. Is an autopsy report testimonial in nature as that term has (contin ued...) 1. Did the admission of the autopsy report in the instant case violate the petitioner s Sixth Am endmen t right to confrontation? 2. If preserv ed, did the trial court err in allowing the medical examiner to render an expert opinion regarding the cause and time of death of Ms. Ebberts? For the reasons stated below, we answer both questions in the negative and affirm the judgment of the intermediate appellate co urt. We ho ld that the autopsy report, as redacted, contained non-testimonial hearsay statements in nature that were admissible under either the business or public records exceptions to the hearsay rule. We further hold that, under the facts of the instant case, the availability of a witness is immaterial to the question of admissibility of hearsay evidence under either the business or public records exception. Opinions, speculation, and other conclusions drawn from the objective findings in autopsy 2 (...continued) been defined in both Crawford v. Washington, 541 U.S. 36 (2004), and this Court s opinion in State v. Snowden, 385 Md. 64 (2005), such that its admission at trial without the testimony of the medical ex aminer who prepared the report is a v iolation of a d efendan t s Sixth Amendment right to confrontation? 2. Whether the trial court erred in allowing a medical examiner (1) to rely on findings contained in an autopsy report prepared by a medical examiner who was not called to testify at trial, and (2) to render an expert opinion that the victim died of asphyxia during the robb ery where su ch an opin ion lacked an adequ ate factual basis and was derived from information unrelated to medical findings? -2- reports are testimonial and should be redacted before the report is admitted into evidence. Because all testimonial statements in nature were redacted from the autopsy report prepared by Dr. Pestaner prior to its adm ission into ev idence, and because th e autopsy repo rt fit within the business and public records hearsay exceptions, petitioner s rights under the Conf rontatio n Clau se wer e not vio lated. Facts The facts surrounding the death of Ms. Ebberts were detailed by the intermediate appellate co urt: On October 19, 2001 , John Eb berts called h is Uncle , William Garland, and asked him to determine whether his mother, the victim, seventy-one year old Irene Ebberts, was all right. Upon arriving at the victim's ho use, Garlan d, his brother , and his brother's wife, noticed the screen d oor and front doo r were open. They entered the home and found the victim lying in her bed. Although her oxyg en machine was still operating, she was unresponsive to Garland. The para med ics su bseq uently arrived, responding to a cardiac arrest call from Garland , and pronounced the victim deceased upon arrival. After recounting the victim's po or health and recognizing no signs of trauma, the paramedics turned off the victim's oxygen machine and the police arrived shortly thereafter. Baltimore County Police Officer Richard McC ampbell was the first to arrive at the scene and the v ictim 's relatives explained that the victim w as in poor physical health. Officer McCampbell observed an open window near the victim, which had dirt an d debris o n the wind ow sill, and n oticed there was a garbage can adjacent to the open window outside the home. He subsequently con tacted the B altimore C ounty Homicide Unit with what he deemed a suspicious d eath. Homicide Detective Childs arrived and, after noting the same observations Officer M cCamp bell had m ade, discov ered that the -3- pillows were in the middle of the bed without covers, as well as some eviden ce of ra nsacki ng or se arching the bed room. During the investigation, officers discovered that cash and jewelry boxes belonging to the victim were missing. The victi m's neighbor, the appellan t, became a suspect af ter his girlfriend provided the officers with information, including the fact that [Rollins ] told her he c ould kill the victim by putting a pillow over he r head. Rollins v. State, 161 Md. App. 34, 42-43, 866 A .2d 926, 930-31 (2 005) (footnote om itted). Petitioner was arrested on October 24, 2001, and during questioning admitted to breaking into Ms. Ebberts's house to borrow money, but denied harming her. He was consequentl y charged with burglary on that same day. On October 20, 2001, Dr. Pestaner noted on the victim s death certificate that the cause of death was pending, and on October 29, 2001, Dr. Pestaner concluded, as stated in the autopsy report, that the cause of death was smothering and the manner of d eath was hom icide. Dr. Pestaner s autopsy report included the follow ing patholo gic diagnoses determining the cause of Ms. Ebberts s death: (I) [s]mothering; (II) [h]ypetensive cardiovascular disease; (III) [l]ung, broncho pneumo nia; (IV) [c]hronic bronchitis and pulmonary emphysema; and (V) [p]leural adhesions. In the O pinion po rtion of the a utopsy report, Dr. Pestaner noted that Ms. Ebberts had died of smothering, a lack of oxygen from covering the nos e and m outh. Evidence of smothering included hemorrhage in the muco sa on o ne side of the m outh. The manner of death noted by Dr. Pestaner was homicide. The autopsy report, as redacted, was summarized by the Court of Special Appeals: -4- The contents of the autopsy report may be summarized as follows: Pages two and three of Dr. Pestan er's report, captioned INTERNAL EXAM INATION , detail the condition of the victi m's body cav ities, head, neck, cardiovascular system, respiratory system, liver and b iliary system, elemen tary tract, genitourinary system, recticuloendothelial system, endocrine system and musculoskeletal system. Aside from the pathologies associated with the victim's bronc hopneu monia exacerbated by severe emphysema and heart disease, the results of the internal examination were unremarkable. On page one of Dr. P estaner's report, the external examination revealed a 1 inch contusion on the left elbow and the right arm had a 2? x 1? contusion. Under the caption, EVIDENCE OF INJURY, Dr. Pestaner indicated: the right buccal mucosa adjacent to the upper denture, in an area adjacent to the root of tooth # 3, had a 1/4? area of superficial hemorrhage. No petechiae were noted of the eyes, mouth, face or airway. The form of the neck was atraumatic. Under MICR OSCO PIC EXAMINA TION, the following was noted: Gum: Acute hemorrhage into underlying non-keratinizing squamous epithelium and into underlying connective tissueAAAA Right Forearm: Acute hemorrhage. Scattered iron posi tivity. Right Arm: acute hem orrhage. Iron stain negative. D r. Pest aner 's conclusions are summed up on the final page of the autopsy repo rt: This 71 year old white female, Irene Ebbe rts, died of smoth ering, a lack of oxygen from covering the nose and mo uth. Ms. Ebberts was found dead in bed at her house . Investigation revealed personal property missing and previous threats of harm had been made to smother Ms. Ebberts. Autopsy revealed a sick woman who had significant heart and lung disease and an acute pneumonia was present in the lung. Evidence of smothering3 3 As the intermediate appellate court surmised, the redacted autopsy report is absent from the reco rd. It would appear that the p ortions of the autopsy report that were italicized in the intermediate appellate court s opinion in the instant case indicate the areas that were (contin ued...) -5- 3 (...continued) redacted prior to the report s adm ission in to evide nce. Apparently, in the process of publishing its opinion and identifying the redacted portions, by italicizing them, the intermediate appellate court negle cted to italicize o ne referen ce to smothering. See id. at 43 n.1, 866 A.2d at 931 n.1. The court s omission is not significant because, based upon our review of the record, it is clear that the Circuit Court specified the removal of all references to smothering in the autopsy report. We are unable to find any reference in the record that limits the redac tion of th e term , sm othe ring to o nly certain parts of the auto psy report. Moreover, petitioner did not contend in the trial court, nor does he contend before us, that the court erred in failing to redact all references of smothering from the report before it was given to the jury. Petitioner s argument was and is that the repo rt was not a dmissible into evidence withou t the presence of D r. Pestaner. At the motions hearing held on March 27, 2003, the Circuit Court gave a copy of the autopsy report to defense counsel and instructed counsel to circle the parts of the report that constituted an opinion, and to which the defense objected. The State reviewed the items that the defense had circled, and the court then addressed each item determining whether the item should be redacted. The trial court noted the following: [THE COU RT]: A ll right. Patholog ical diagno sis. Smothe ring. Out. Hypertensive and [atherosclerotic cardiov ascular] disease. Out. That is an opinio n. **** [THE COURT]: [Speaking about the look of the autopsy report post-redaction] I rather suspe ct that you are going to be left with something that is redacted that just says that smothering, hypertensive and [atheros clerotic cardiovascular] disease and homicide. [THE STAT E]: That those would be removed? [THE COU RT]: In my opinion those would be the only thing[s] removed unless she says something else that surprises me that some of these other things are matters of opinion, which I don t think that they are. [THE STAT E]: Very w ell. (contin ued...) -6- included hemorrh age in the mucosa on one side of the mouth . The manner of death is homicide. The decedent was not consuming alcoholic beverages prior to death and a comprehensive drug test was negative. There was no evidence of sexual activ ity. Id. at 43 n.1, 866 A.2d at 931 n.1. The following describes the information surrounding the admission of the autopsy report, the trial judge s redactions, and the inte rmediate ap pellate court s conclusions: As to the contents of the autopsy report to which appellant specifically interposed an objection, the record u nequivoc ally discloses that appellant objected to adm ission of the report without the testimony of Dr. Pestaner; then he specifically objected to any opinion contained in the report; he also objected to Dr. Ripple's use of the report in formulating her own opinion. Turning to the question of whether all or part of the report was admitted into evidence, we cannot discern from our inspection of the autopsy report contained in the record on appeal that any portion of the report was redacted. The court's statements, however, regarding opinions in the report during the hearing on the Motion to Exclude Testimony of the Medical Examiner, and various references to deletions from the report during examinations of witnesses, indicate that the court did, in fact, redact th e cause and m anner o f death . **** During the course of the hearing on the M otion to Exclude the Testimony of the Medical Exa miner, the court had 3 (...continued) (Emphasis added.) A search of all of the transcripts in the instant case provided evidence, through the statemen ts of the trial cou rt, and throug h multiple re ferences to redactions during testim ony, that all opinions as to the cause and manner of death were redacted from the autopsy report. See Rollins, supra, 161 Md. App. at 76-77 n.11, 866 A.2d at 951-52 n.11. -7- decided that the on ly thing I can see he re that is an op inion is disease . . . smothering . . . [and] homicide and disease; the court indicated that it would make sure that the doctor will say that the rest of these are factual observations. Accordingly, the trial judge redacted what he determined constituted opinio n, i.e., the section captioned manner of death and the referen ces to smothering, homicide and disease. Consequently, the trial judge removed from the jury's consideration the ultimate conclusion contained in Dr. Pestaner's report that the manner of death was homicide by asphyxiation. There is no issue presented regarding the denial of the right to confro ntation, therefore, as to Dr. Pestaner's opinion regarding the cause of death. Rollins , 161 M d. App . at 76-7 9, 866 A .2d at 95 1-52 (f ootnot e omitte d). Rollins was charged with murder on October 31, 2001. Dr. Pestaner did not testify at trial.4 Rollins filed a pretrial motion to prevent the deputy medical examiner, Dr. Ripple, from offering testimony and opinions that were based on hearsa y information that is unrelated to the m edical f inding s of the exam ination o f the alle ged vic tim. Rollins argued that Dr. Ripple s conclusions and opinions were largely unsupported by the contents of the autopsy report and that her opinions were based upon hearsay statements that were provided by the investigating detectives in this case, rather than medical findings. Id. at 43-44, 866 4 With regard to the appearance of Dr. Pestaner at trial, there was some confusion: Defense counsel noted that he was informed that Dr. Pestaner no longer worked at the Medical Examiner s Office and that he had been told that it was the policy of the Medical Examiner s Office to try and replace somebody else to do the medical te stimony in this case. The trial judge urged defense counsel to subpoena Dr. Pestaner, at which time the State indicate d that, although th ey were not c ertain if they wo uld do so, th ey might subm it the autopsy repo rt itself without Dr. Pestaner. It was eventually concluded that Dr. Pestaner had left the State of Maryland and was a pra cticing coro ner in the State of California at the time of trial. -8- A.2d at 931. Pursuant to Maryland Rule 5-702, Rollins also contended that Dr. Ripple s opinion was based on testimony from potential w itnesses wh om the S tate would otherwise be required to call in its case in chief rather than medical findings, and, thus, the testimony would not be help ful to the jury. Petitio ner s assign ment of e rror in the interm ediate appellate court was based on his con tention that D r. Ripple s testim ony would constitute a violation of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.5 The defense motion to prevent the testimony of Dr. Ripp le was noted, but denied. At trial, the State presented Dr. Ripple as an expert witness and the defense countered with three expert witness es who disputed Dr. Ripple s testimony on various grounds, each essentially contending that Ms. Ebberts died of natural causes. Rollins was found guilty by the jury of first-degree felony murder, seco nd-d egre e mu rder , robbery, a nd burglary. As a 5 Rollins s constitutional argument was posed as follows: Because the medical examiner's opinion is based upon hearsay statements from w itnesses who may or may not testify, the admission of such tes timony wo uld violate th e defendant's rights under the Sixth and Fou rteenth Amendments to the Constitution of the United States to confront and cross-examine witnesses, his right to trial by jury to determin e the witne ss credibility issues under the Sixth and Fourteenth Amendments to the Constitution of the United States, and his right to Due Process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States. Rollins, 161 M d. App . at 44, 86 6 A.2d at 932. -9- result of the first-deg ree mu rder co nviction , the State sough t the dea th pena lty. Ultimate ly, the trial judge sentenced Rollins to life without the possibility of parole. Discussion I. Did the admiss ion of the autopsy report in the instant case violate the petitioner s Sixth Amen dment righ t to confrontation? Rollins primarily contends that the admission of Ms. Ebberts s autopsy report, without the testimony of the doc tor who p repared the report, violated his constitutional right to be confronted with witnesses against him under the Confrontation Clause, Amendment VI of the Constitution of the United States and Article 21 of the Maryland Declaration of Rights. The seminal case on this issue is Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed. 177 (2 004). Petitioner contends that the Crawford decision changed the law regarding the Confrontation Clause, and thus argues that the distinction between fact and opinion in an autopsy report is no longer a factor in determining whether the admission of an autopsy report absent the testimony of the person who prepared the report vio lates an accused s right to confrontation.6 6 The intermediate appellate court s interpretation of Crawford in the instant case led it to conclude that the opinions/conclu sions in the a utopsy report in the instant cas e fall squarely within the business records exception of the hearsay rule and is, therefore, technica lly, non-testimonial hearsay. Rollins, 161 Md. App. at 66, 866 A.2d at 945 (footnote omitted ). The Court of Special Appeals classified the autopsy report as a business record pursuant to Md. Code, Health General Article, § 5-311, and as such held that the unavailab ility of the witness and prior o pportunity for c ross-exam ination requ ired in [a] case of testimonial h earsay are not rig hts, under Crawford, which attac h automa tically to (contin ued...) -10- The Crawford Decision In Crawford s trial for assault and attempted murder, the tape-recorded statement of Crawford s wife was offered as evidence to rebut Crawford s claim that he attacked the victim in self-defense.7 At trial, Crawford s wife did not testify because of Washington State s marital privilege.8 The privile ge, how ever, did no t extend to statements made outside of court that were a dmissible u nder a hea rsay exception , and Craw ford s w ife s stateme nts were a dmitted notwit hstand ing the m arital priv ilege. Crawford, 541 U.S. at 40, 124 S . Ct. at 1357-58 . Crawfo rd argued that the adm ission of his wife s out-of-court statement violated his constitutional right to conf ront the witnes ses aga inst him . Id. at 40, 124 S. Ct. at 1358. The Suprem e Court ex amined its holding in Ohio v. R oberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L.Ed.2d 597 (1980), that the right to confrontation will not prevent the admission of a statement made against a criminal defendant by an unavailable witness if the statement possesses adequate indicia of reliability, meaning that the statemen t either fall[s] w ithin 6 (...continued) non-te stimon ial hears ay. Id. at 66-67, 866 A.2d at 945. In other words, business records are not include d within the enumerated designations of testimonial statements outlined by the Supreme Court in Crawford that require th e unavailab ility of the witness and prior opportun ity for cro ss-exam ination f or adm ission. See Crawford, 541 U.S. at 68, 124 S. Ct. at 1374 (footnote omitted). We shall discuss this holding infra. 7 Crawford s wife stated that she did not see a weapon in the victim s hands before Craw ford sta bbed th e victim . Crawford, 541 U .S. at 39- 40, 124 S. Ct. at 1 357. 8 Washington s marital privilege, at the time Crawford was decided, was contained in Wash. Rev. Code § 5.60.060(1) (1994), and generally prevents a spouse from testifying without the other sp ouse s con sent. See Md. Code (1974, 2002 Repl. Vol. & 20 04 Supp.) § 9-106 of the C ourts an d Judic ial Proc eeding s Article . -11- a firmly rooted hearsay exception or bear[s] particularized guarantees of trustworthiness. Crawford, 541 U.S. at 40, 124 S. Ct. at 1358 (quoting Ohio v. R oberts, 448 U.S. at 66, 100 S. Ct. at 2539). Primarily, the Court noted that two inferences about the Confrontation Clause could be gleaned from history, the first of which is that the principal evil that the Confrontation Clause was meant to address was the use of ex parte examinations as evidence against the accused. Id. at 50, 12 4 S. Ct. a t 1363. The second inference about the Confrontation Clause, supported by history, is that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless . . . [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Id. at 53-54, 124 S. Ct. at 1365. The prior opportunity to cros s-ex amin e is a conditio n pre cede nt fo r the adm issib ility of testimonial statements, with some exceptions. The Court stated that this conclusion was not meant [to] deny that [t]here were always exce ptions to the g eneral rule of exclusion of hears ay evidence . . . . But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. [Most of the hear say] exceptions covered s tatements th at by their nature were not testimonial--for example, business records or statemen ts in furtherance of a c onsp iracy. We do not infer from these that the Framers thought exceptions would apply even to prior testim ony. Cf. Lilly v. Virg inia, 527 U .S. 116 , 134, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion) ( [A]ccomplices confessions that inculpate a criminal defendant are not w ithin a firmly rooted exc eption to the hearsay rule ). -12- Crawford, 541 U .S. at 56, 1 24 S. C t. at 1367 (footn otes om itted). The text of the Confrontation Clause regardin g witnesses against the accused was interpreted by the Court to mean tho se individua ls who bear testimony against the accused. Id. at 51, 124 S. Ct. at 1364. Noting Roberts s conditioning of the admissibility of all hearsay evidence on whether it falls unde r a fi rmly r ooted hearsay exception o r bears particularized guarantees of trustworthiness, the Court found that the Roberts test departed from the noted historical inferences about the Conf rontatio n Clau se. Id. at 60, 124 S. Ct. At 1369. The Court ultimately rejected the Roberts test for testimonial statements, concluding that conditionin g the adm issibility of all hearsa y evidence o n its reliability, and leaving the Confrontation Clause s protection to the vagaries of the rules of evidence, was inconsistent with th e Fram ers inten t. Id. at 61, 12 4 S. Ct. a t 1370. While the Supreme Court was reluctant to detail a comprehensive definition of testimonial, it did provide some guidance. The Court noted: Various formulatio ns of this co re class of te stimonial statements exist: 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 pretria l statements th at declarants would reasonably expect to be used prosecutorially[;] extrajudicial statements ... co ntained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[;] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.] Id. at 51-52, 124 S. Ct. at 1364 (citations omitted). Testimony was defined as [a] solemn -13- declaration or affirmation made for the p urpose of estab lishing o r provin g some fact. Crawford, 541 U.S. at 51, 124 S. Ct. at 1364 (quoting 1 N. W EBSTER, A N A MERICAN D ICTIONARY OF THE E NGLISH L ANGUAGE (1828 )). The Supreme Court mentioned that there are multiple exa mples of testimonial statements a nd remark ed particular ly that statements taken by police officers in the course of interrogations are testimo nial. Id. at 52, 124 S. C t. at 1364. The Court stopped short of establishing a complete definition o f what is tes timonial, but noted th at prior testim ony at a preliminary hearing, before a grand jury, or at a former trial . . . and . . . police in terroga tions a re cons idered to be testim onial. Id. at 68, 124 S . Ct. at 1374 . We recently discussed Crawford and the ad mission of testimonial statements in connection with the Confrontation Clause in State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005). Snowden was arrested, and eventually convicted, on several counts of sexual abuse based on inform ation obtain ed during an interview between a sexual ab use investig ator with the Montgomery County Department of Health and Human Services, and the alleged victims. Id. at 69-71, 867 A.2d at 31 6-17. The State filed a m otion to invoke Md. Code (2001), § 11304 of the Criminal Procedure Article.9 Id. at 73, 867 A.2d at 318-19. The inve stigator s testimony was found to be sufficient under § 11-304 and was permitted by the trial judge after an examination of the c hildren . Id. at 73, 867 A.2d at 319. Snowden objected, arguing that this admission was in violation of his Sixth Amendment right to confrontation, but the 9 Section 11-30 4 is kno wn as the ten der years statute. -14- trial court overruled his objection and Snowden was found guilty on all coun ts. Id. at 74, 867 A.2d a t 319. In our analysis, w e addresse d the Supreme Co urt s categor ization of te stimonial statements in Crawford: As the Court noted, these standards share a common nucleus in that each involves a formal or official statement made or elicited with the purpose of being introduced at a criminal trial. Id. at 1364, 1367, n. 7 (find ing that statements are testimonial where government officers [are involved] in the production of testimony with an eye toward trial ). Although these standards focus on the objective quality of the statement made, the uniting theme underlying the Crawford holding is that when a statemen t is made in th e course o f a criminal investigation initiated by the government, the Confrontation Clause forbids its introduction unless the defendant has had an oppor tunity to cro ss-exam ine the d eclaran t. Id. at 1364. Id. at 81, 867 A.2d at 324. Analyzing Crawford, we opined: In the context of police interro gations, we are directed by Crawford to conclud e that the pro per standar d to apply to determine whether a statement is testimonial is whether the statements were made under circumstances that would lead an objective declarant reasonably to believe that the statement would be ava ilable fo r use at a later trial. Id. at 83, 867 A.2d at 325 (quoting Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364) (footnote omitted) (emphasis added). We note d tha t, not with standing the c hildren's awareness of why they were being interviewed, the express purpose of bringing the children to the facility to be interviewed was to develop their testimony for possible use at trial. Id. at 85, 867 A .2d at 326 (e mphasis added.) Disregarding the State s arguments as to the na ture -15- of the interviews with the children, we held that, [n]o matter what other motives ex ist, if the circumstances of the given statement would lead an objective person to believe that the statements made in response to government interrogation would be used at trial later, the admission of those statements must be subject to the requirements of Crawford. Id. at 92, 867 A .2d at 33 0. Whether an autopsy report is testimonial in nature pursuant to Crawford is an issue of first impression in Maryland. We tu rn to the dec isions of state s that have d ecided this issue and similar issues. Several jurisdictions have interpreted Crawford strictly, finding that reports that do not fall within the three enum erated categ ories of testim onial statem ents specif ied in Crawford do not i mplica te the C onfro ntation C lause. See State v. Dedman, 102 P.3d 628 (N.M. 2004) (holding that a blood-alcohol report was not testimonial because it did not fall within the categories of testimonial statements enumerated in Crawford and because the report was not prepared by law enforcement personnel). In Moreno Denoso v. State, 156 S.W.3d 166 (Tex.Ct. App. 2005), the defendant objected to the admission of an autopsy report because the maker of the report had died an d did no t testify at tria l. Id. at 181. The trial court in Moreno Denoso found that the autopsy report was admissible as a public record. Id. at 180. Th e court note d that the au topsy report se t forth matters pursuant to a duty imposed by law, and detailed the state of d ecompo sition of the b ody in addition to observations about the victim s body. Id. at 180, 182. The Moreno Denoso court found that -16- the autopsy report did not fit within the enumerated categories in Crawford, and therefore, it was non-testimonial and admissible. Id. See also Mitchell v. State, No. 04-04-00885-CR (Tex. App. Dec. 21, 2005) (finding that an autopsy report is not testimon ial evidence in violation of Crawford becau se it is a bu siness re cord, an d theref ore, non -testimo nial). Crawford s reference to the business records as non-testimonial statements has led other jurisdictions to hold that finding evidence to be a business r ecord auto matically excep ts that document from Confrontation Clause scrutiny. See People v. Brown 801 N.Y.S.2d 709, 712-13 (N.Y. Su p. Ct. 2005 ); Commonwealth v. Verde, 827 N.E.2d 7 01, 706 (Ma ss. 2005); People v. Hinojos-Mendoza, No. 03CA0645, slip op. at 11-13 (Colo. C t. App. July 28, 2005). In People v . Durio, 794 N.Y.S.2d 863 (2005), the defendant objected to the admission of both the autopsy report of the victim and the testimony of an assistant medical examiner offered in place of the medical examiner who prepared the repo rt. Durio, 794 N.Y.S.2d at 864. The cou rt noted that Crawford had specifically exempted business records from scrutiny under the Confrontation Clause because they are outside the core class of testimonial statements that were meant to be excluded by the clau se. Id. at 867. Interpreting Crawford, the court in Durio stated: The essence of the business records hearsay exception contemplated in Crawford is that such records or statements are not testimonial in nature because they are prepared in the ordinary course of regularly conducted business and are by their nature not prepared for litigation. Id. An autopsy report can be considered a business record under New York law based on the rationale that [r]ecords systematically made for -17- the conduct of a busi ness are in here ntly highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of the enterprise. Id. at 868 (citation omitted). The court in Durio gave the following reasoning for the admission of the autopsy report without violation of the Confrontation Clause: The [Office of the Ch ief Med ical Examiner ( OCME )] is not a law enforcement agency and is by law, independent of and not subject to the control of the off ice of th e prose cutor. OCME is required s imply to investigate unnatural deaths and is required to perform autopsies in a numb er of situation s only one of which is when the death is potentially the product of a homicidal act . . . . OCM E is not auth orized to gather evidence or determine the identity of a particular perp etrator and is not responsible for enfor cing any criminal laws. OC ME s independence distinguishes its autopsy reports from the blood test report held to be testimonial in People v[.] Rog ers (8 AD3d 888, 89 1 [3d D ept 200 4]). The autopsy report in this case was not manufactured for the benefit of the prosecution. Indeed, an autopsy is often conducted before a su spect is identified or even before a homicide is suspected . That it may be prese nted as evid ence in a homicide trial does not mean that it was composed for that accusatory purpose or that its use by a prosecutor is the inevitab le cons equen ce of its comp osition. Id. at 868- 69 (som e citation s omitte d). The Durio court also noted the practical implications of treating au topsy reports as in admissible te stimonial he arsay: Years may pass between the performance of the autopsy and the apprehension of the perpetrator. This passa ge of time can easily lead to the unavailability of the examiner who prepared the autopsy report. Mo reover, me dical exam iners who reg ularly perform hundreds of autopsies are unlikely to have any -18- independent recollection of the autopsy at issue in a particular case and in testifying invariably rely entirely on the autopsy report. Unlike o ther fore nsic tests , an a utop sy cannot be replicated by another pa thologist. Ce rtainly it would be against society's interests to permit the unavailability of the medical examiner who prepared the report to preclude the prosecution of a homicide case. Id. at 869. Other jurisdictions, such as those of Ohio , Alabama and Florida have held that classifying evidence that fits within a hearsay exception, such as business or public records, does not exem pt such ev idence fro m scrutiny under the C onfrontatio n Clause p ursuant to Crawford. In State v. Crager, No. 9- 04-54 , slip op. a t 2 (Ohio App. Dec. 27, 2005), the defendant was co nvicted of agg ravated assault a nd mu rder. He challenged the introduction of a DNA report when the analyst who prepared the report was not present to testify. The court found that the report w as testimonial under Crawford because it was prepared as part of a police investigation and a reasonab le person co uld conclu de that it would b e available for use at a later tr ial. Id. at 13. The court in Crager held that the s tatement in Crawford referring to the business records exception was purely dictum,10 and suc h a stateme nt should 10 The cou rt s contention in Crager that the reference to the business records exception in Crawford was pure ly dictum is not u niversally adopted, and we do not share that court s view as to the residual value of the Supreme Court s pro nouncem ents. We n ote that, while not essential to the issue decided in Crawford, Justice Scalia s discussion of the business records exception in the context of the Confro ntation Clau se offers u s guidanc e in the insta nt ca se. D icta o f the United S tates Sup reme Co urt sh ould be very persuasiv e. Fouts v. Maryland Cas. Co., 30 F.2 d 357, 3 59 (4th Cir.192 9). See also Wrigh t v. Morris, 111 F.3d 414, 419 (6th Cir. 1997) (noting that dicta is instructive of the Supreme Court s views and cannot be dismissed out of han d . . . [w]here there is no clear prece dent to the contrary ). -19- [not] control over the [Supreme C]ourt's holding, which involves whether a statement is testimonial or [non-testimonial]. Id. at 15. The court also stated that, while some evidence may fall within the general business-records exception, other business records should still be subject to analysis under Crawford and be excluded from evidence if they are in fact testimo nial. Id. at 16. Smith v. State, 898 So.2d 907 (Ala. Crim. App. 2004), concerned a defendant s objection to the admission of an autopsy report and evidence admitted without the testimony of the doctor who performed the auto psy. Although the report was admissible as a business record, the court ne vertheless h eld that it violated the Conf rontation C lause beca use it allowed the State to prove cause of death, a crucial element in the case, without providing Smith with the opportunity to cross-examine the doctor who determined the cause of death. Id. at 915-16. The court noted that the testimony offered by the substitute medical examiner allowed th e State to pro ve that the ca use of de ath was asphyxiation, w hich was contrary to the defenda nt's claim that the victim died a s a result of b lows the d efendan t inflicted in self-defense. This error, however, was deemed harmless. The court observed that the autopsy repo rt did not influ ence the ju ry's verdict, beca use the ju ry reje cted the a ppellant 's self-defense claim and retu rned a m anslau ghter v erdict. Id. at 915 n .4. See also Perkins v. State, 897 S o.2d 45 7, 464 (Ala. Crim. App. 2004) (finding that an autopsy report is nontestimonial in nature an d, classified a s a business record, it bea r[s] the earm ark of reliab ility and probability or trustworthiness ) . -20- In Belvin v. Sta te, No. 4D 04-4235 , slip op. at 11 (Fla. App. Mar 08, 2006), the District Court of Appeal of Flo rida held that a breath test affidavit, prepared in connection with a breath test that was a dministered when th e defend ant was a rrested for d riving under the influence ( DUI ), was testimonial hearsay and, therefore, inadmissible because petitioner did not have an opportunity to cross-examine the breath test technician. In Florida, the legislature passed laws allowing the state to introduce at trial an affidavit containing the necessary evidentiary foundation for breath te st results. Id. at 3-4 (citations omitted). The court in Belvin held that, because breath test affidavits are generated by law enforcement for use at a later criminal trial or driver's licens e revocatio n proceed ing, they fall within the third enumerated category of testimonial statements in Crawford, as statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 6. Rejecting the argument that the breath test affidavit was a p ublic record pursuant to statute, the court in Belvin determined that the statutory listing of b reath test affid avits under the public re cords and reports exception to the hearsay rule does not control whether they are testimonial under Crawford. Id. at 6-7. The court agreed with Belvin, holding tha t the portions o f the breath test affidav it pertaining to the procedures followed by the technician in administering the breath test was precisely the type of evidence considered testimonial in Crawford. Id. at 7. We find the an alysis of the court in Kansas v. Lackey, 120 P.3d 332 (Ka n. 2005), to -21- be persuasive in resolving the issues in the instant case.11 In Lackey, the defendant was charged with premeditated first-degree murder an d rape and convicted , in part, based upon DNA eviden ce. Lackey, 120 P.3d at 342. Dr. William Eckert, the medical examiner who performed the autops y on the v ictim, die d befo re Lac key s trial. Id. At 341. The State s expert, Dr. Erik Mitchell, reviewed Dr. Ecke rt s report, in con junction w ith other evidence, and determ ined bo th the ca use and time of death. Id. The defendant a rgued that the admission of Dr. Mitchell s exp ert opinion, based on the auto psy perform ed by Dr. Ec kert, should not have been ad mitted a s it violate d the C onfro ntation C lause. Id. at 342. The autopsy report in Lackey contained an external, internal, and microscopic description of the body and did not suggest a date of death. Id. at 345. Dr. Mitchell testified that the condition of the victim s b ody suggeste d a specific window of time fo r her death, a nd that her death was ca used b y strangu lation. Id. at 346. During Dr. Mitchell s testimony, the autopsy report was admitted over objection. The court reasoned that, even though the report was hearsay, it was not subjective, but was a medical doctor s rendition of what he observe[d]. Id. Using the standards of Ohio v. 11 We note that the medical examiner in Lackey was clearly un available because he was deceased at the time of the trial. In the instant case, the issue of unavailability was never determined. In a generic sense, the witness was unavailable because he was no longer employed by the Medical Examiner s office and resided in California. He was not unavailable as that term is defined by Maryland Rule 5-8 04, or clearly beyond the court s jurisdiction. See Md. Code (1974, 2002 Repl. Vol.) § 9-303 (a) of the Courts and Judicial Proceedings Article (notin g the proce dure for su bpoenain g witnesse s located ou tside of Maryland). As we shall explain infra, the unavailability of the medical examiner is not dispositive in determining whether nontestimonial hearsay evidence is admissible. -22- Roberts, supra, the court admitted the autopsy report into evide nce. Lackey argued tha t Dr. Eckert s statements in the autopsy report w ere inadmissible under Crawford because they were testimonial and the defense had no opportunity for cross-examination. The Kansas Supreme Court no ted that resolu tion of this issue involves multiple layers of analysis, including whether the autopsy report falls under a hearsay exception, whether it was testimonial under Crawford, and whether it could be used by the State s expert. Id. at 346. In conductin g its analysis, the court in Lackey first determined if the autopsy report fell under a hearsay exception ; whether the report w as testimonial under Crawford; and fina lly, whether the State s expe rt could use the report. Id. The co urt fou nd, inter alia, that the autopsy repo rt fell under th e business a nd officia l records hearsay exceptions, but was still subject to scrutiny under Crawford. The court in Lackey compared the autopsy report to the categories of testimonial statements enumerated in Crawford and also looked to the cases of othe r jurisdic tions fo r guida nce. After noting cases from Alabama, Texas and New York, the court cited to the interm ediate appe llate court s de cision in the instant case, stating that it was the most balan ced in its app roach: Under such an a pproach , factual, routine, descriptive, and nonanalytical findings made in an autopsy report are [nontestimonial] and may be admitted without the testimony of the medical examiner. In contrast, contested opinions, speculations, and conclusions drawn from the objective findings in the report are testimonial and are subject to the Sixth Amendment right of cross-exam ination set forth in Crawford. Such testimonial opinions and conclusions should be redacted in the event that the medical examiner is unavailable. No denial of due process arises under this resolution because both parties are granted -23- access to the objective findin gs of the au topsy report an d both parties may procee d to obtain th eir own expert testim ony, opinions, and conclusions based upon the objective findings of the m edic al ex amin er pe rfor ming the auto psy. Id. at 351-55. Ultimately, the court in Lackey stated that the cause of death noted in the autopsy report, although testimonial in nature, was merely cumulative because it was an undisputed fact, and was already establis hed thr ough o ther op inion tes timony. Id. at 352. The disputed fact in Lackey was the time of the victim s death. The court noted that the autopsy report did n ot contain a statement as to how long the victim had been deceased. Id. Because the disputed fact of time of death had already been established by evidence other than the autopsy rep ort, the court f ound that any erro r in th e adm issio n of Dr. E cker t's stateme nts as to t he cau se of d eath w as harm less. Id. The Instant Case A. Does the Autopsy Report Fall Within a Hearsay Exception? 1. The Business and Public Records12 Exceptions 12 Md. Code (1984, 2004 Repl. Vol.) § 10-611(g) of the State Govern ment Ar ticle defines a public record as: (g) Public record. (1) Public record means the original or any copy of an y documen tary material that: (i) is made by a u nit or instrumentality of the State government or of a political subdivision or received b y the unit or instrumen tality in connectio n with the tra nsaction of public business; and (ii) is in any form, including: 1. a card; (contin ued...) -24- As we have discussed supra, the Supreme Court indicated in Crawford that the hearsay exceptions, such as the business records excep tion, can exempt evidence from scrutiny under the Confrontation Clause. Under Maryland law, [a] record of the Chief Medical Examiner, or any deputy medical examiner, such as an autopsy report, is considered competent evidence in any court in this State, if the record is made by the medical examiner or by anyone u nder the m edical exam iner's direct supervision or control. Md. Code (1982, 2005 R epl. Vol.), § 5-311(d)(2) of the Health General A rticle. Maryland Rule 5-803(b)(6)13 provides that records of regularly conducted business activities are not excluded by the hearsay rule, even though the declarant is available as a witness: Records of Regu larly Conduc ted Busin ess Activ ity. A memorandum, report, record , or data com pilation of acts, events, conditions, opinions, o r diagnose s if (A) it was made at or near the time of the act, event, or condition, or the rendition of the diagnosis, (B) it was made by a person with knowledge or from information transmitted b y a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activ ity, and (D) the regular prac tice of that bu siness wa s to make and keep the m emorandum , report, record, or data 12 (...continued) 2. a computerized record; 3. correspondence; 4. a drawing; 5. film or microfilm; 6. a form; 7. a map; 8. a photog raph or ph otostat; 9. a recording; or 10. a tape. 13 Maryland Rule 5-803(b) was derived from Federal Rule 803. -25- compilation. A record of this kind may be excluded if the source of information or the method or circumstances of the preparation of the record indicate that the info rmation in the record lacks trustworthiness. In this paragraph, "business" includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Md. Rule 5-803(b)(6). T his exception represen t[s] [the] . . . recognition that if records are reliable enough for the running of a business (or a government agency), they are trustworthy enough to be adm issib le at trial, p artic ularly when one considers the practical difficulty of proving the specific f acts contain ed in many of these records. JOSEPH F. M URPHY, J R. M ARYLAND E VIDENCE H ANDBOOK, § 804 at 31 8 (3d ed.19 99). Justice S calia addressed specifically the nature of statements contained in business records in Crawford: This is not to deny, as THE C HIEF JU STICE no tes, that [t]here were always exceptions to the general rule of exclusion of hearsay eviden ce . . . . But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. M[ost of the hearsay] exceptions covered statements that by their nature w ere not testim onial for example, business records or statements in furtherance of a conspira cy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony. Id. at 56, 12 4 S. Ct. a t 1367. See Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 112-13, 604 A.2d 47, 49 (1992) (holding that a trial judge h as the discretio n to exclude a document that meets the technical requirements of a business record when the objecting party persuades the judge that the document lacks the degree of reliability and trustworthiness that business records are ordinarily assumed to possess. ) (footnote omitted); Ellsworth v. Sherne Lingerie, -26- Inc., 303 Md. 581, 604-605, 495 A.2d 348, 360 (1985) (applying the public records exception to the hearsay rule and differentiating between fact and opinion ); see also Md. Code (1974 & 200 2 Rep l. Vol), § 10-20 4 of the Courts and Ju dicial Pr oceed ings A rticle. The interm ediate appe llate court fou nd that any an alysis pursuant to Md. Code (1974, 2002 Repl. V ol), § 10-204 of the Courts and Judicial Proceedings Article,14 governing the admissibility of public re cords, wo uld lead to th e same res ult that the cou rt had reach ed in 14 Section 10-204 provides: (a) Admissibility of copies. A copy of a public record, book, paper, or proceeding of any agency of the government of the United States, the District of Columbia, any territory or possession of the Un ited States, or o f any state or of any of its political subdivisions or of an agency of any political subdivision shall be received in evidence in any court if certified as a true copy by the custodian of the record, book, paper, or proceeding, and if otherwise admissible. (b) Provision of copies. Except as otherwise provided by law, a custodian of a public record in the State or other person authorized to make a certification u nder this section shall, upon request, provide a certified cop y of the public record to a party to a ju dicia l proceed ing o r the party's atto rney. (c) Certification. A certificatio n under th is section sha ll include: (1) The signature and title of the custodian or other person authorized to make the certification; (2) The official seal, if any, of the office; and (3) A statement certifying that the copy is a true copy of the public record. (d) Fee. A custodian or other person authorized to make a certification under this section may charge a reasonable fee for providing a certified cop y of a public re cord in accordan ce with this section. -27- applying the business records exception. Specifically, factual findings contained in a document deemed to be a public record may be received into evidence so long as the document is certified as being a true copy by the custodian of records. The Court of Special Appeals, in considering the admission of opinions, as distinguished from factual findings, noted our decision in Ellsworth , supra.15 15 In applying the public records exception in Ellsworth we differentiated between fact and opinion, noting: The line between fact and op inion is ofte n difficult to draw. An investigating body may hear diametrically opposed testimony on the question of whether one person or another struck the first blow, and proceed to decide the issue as a finding of fact. That determination necessarily has a judgmental quality, and differs, for example, from a finding of fac t that a certain number of persons suffered burns from ignition of clothing fabric during a given period. Conclusions found in reports need n ot be jud gmen tal . . . . [A]ttachin g labels of fact or opinion or conclusion will not necessarily resolve the issue, and careful attention must be given to the true nature of the statement and the totality of circumstances bearing on the ultimate issue of reliability. Third level hearsay may possess significant indicia of reliability in one case and be clearly unreliable in another. **** We agree that the Public Records exception to the hearsay rule appropriately allows the reception of reliable facts, a nd will be recognized in this state in the form in which it appears at Fed.R.Evid. 803(8). We m ake clear, howeve r, that the term factual findings w ill be strictly construed and that evaluations or opinions contained in public reports will not be received unless othe rwise adm issible unde r this State's law of evidence. (contin ued...) -28- a. The Autop sy Report in the Instant Case Was Admissible as Both a Business and a P ublic Record We find the intermediate appellate court s determination that the report was a business record, and the refore n on-testim onial he arsay, to be correct . During the trial in the instant case, the trial judge questioned D r. Ripple, the deputy medical exam iner, about the procedure surround ing the ma king of the autopsy repo rt: [THE COURT]: The fact is that you have a medical repo rt before you, c orrect? [DR. RIPPLE ]: Yes. [THE COURT]: And when you are talking ab out protoco l, all you know is what is on that report, cor rect? [DR. RIPPL E]: I know what is on this report and what is in the file. [THE COU RT]: All right. And that report is required by law to be kept in th e course o f business, c orrect? [DR. RIPP LE]: Yes, Yo ur Honor. [THE COURT]: So the entries on there are m ade in acco rd with the statute that re quires the rec ord to be k ept, right? [DR. RIPP LE]: Yes, Yo ur Honor. Dr. Ripp le testified that the autopsy repo rts and file were records ke pt during the regularly conducted business activity of the Office of the Chief Medical Examiner and that the rough 15 (...continued) Id. at 609- 610, 61 2, 495 A .2d at 36 2, 363- 64 (fo otnotes omitted ). -29- body drawings and notations taken during the autopsy that she referenced were materials that are regu larly relied u pon in t he field in orde r to com e to a co nclusio n or op inion. The autopsy report in the instant case meets the definition of record provided by section 5-311(d)16 of Health General Article, in addition to the definition of record provided in Md. Code (1974, 2002 Repl. Vol.), § 10-101(b) of the Courts and Judicial proceedings Article.17 Here, w e find no e rror in the trial judge s dete rmination that the 16 Section 5-3 11(d) def ines record as: (d) Evidence. (1) In this subsection, record : (i) Means the result of a view or examination of or an autopsy on a body; and (ii) Does not include a statement of a witness or other individ ual. (2) A record of the office of the Chief Medical Examiner or any deputy medical examiner, if made by the medical examiner or by anyone under the medical examiner's direct supervision or control, or a certified trans cript of that record, is competent evidence in any court in this State of the matters and facts conta ined in it. 17 Section 10 -101 prov ides: (a) Definition of business. Business includes business, profession, and occupation of every kind. (b) Admissibility. A writing or record made in the regular course of business as a memorandum or record of an act, transaction, occurren ce, or even t is admissib le to prove th e act, transaction , occurren ce, or even t. (c) Time of making records. The practice of the business must be to make such written records of its acts at the time they are done or within a reasonable time afterwards. (d) Lack of knowledge of maker. The lack of personal knowledge of the maker of the written notice may be show n to (contin ued...) -30- autopsy report was a business record. There is no suggestion apparent from the record that the autopsy repo rt is unreliable or untrustworthy. The purpose for which the autopsy report was prep ared was , prim arily, to satisfy th e statutory requirements of the Health General Article. B. Notwithstanding Its Designa tion as Bo th a Business and Pub lic Record , is the Redacted Autopsy Report Testimonial? In reviewing the enumera ted formu lations of the core class o f testimon ial statements, it is clear that Dr. Pestaner s autopsy report does not fit within the first two categories of the core class of testimonial statements determined by the Supreme Court in Crawford. It is neither ex parte in-court testimony or its functional equivalent, a custodial examination, prior testimony, nor an extrajudicial statement contained in formalized testimonial materials. We find that the only category under which the autopsy report might fall is that of statemen ts that were made under circumstances which would lead an objective witness rea sonably to believe that the stateme nt wou ld be av ailable f or use a t a later tria l. The information that was not redacted from the autopsy report, while it might eventually be used in a criminal tria l, was not created for that express purpose, and was statutorily required to be determined by the medical examiner and placed into the report pursuant to § 5-311 of 17 (...continued) affe ct the weight o f the evid ence but n ot its adm issib ility. (Emp hasis ad ded.) -31- the Health General Article.18 Unlike the interview in Snowden, the express purpose for the 18 The resp onsibilities of a medical ex aminer w ith deaths that require investigation are outlined in Md. Code (1982, 2005 Repl. Vol.), § 5-309 of the Health General Article, which states in pertine nt part: (a) Deaths to be investigated. (1) A me dical exam iner shall investigate the death of a human being if the death occurs: (i) By violence; (ii) By suicide; (iii) B y casu alty; (iv) Suddenly, if the deceased was in apparent good health or unattended by a physician; or (v) In any suspicious or unusu al manner. **** (b) Notification of medical examiner. If a med ical e xam iner's case occurs, the police or sheriff immediately shall notify the medical examiner and State's Attorney for the county where the body is found and give the known facts concerning the time, place, manner, and circumstances of the death. (c) Investigation by a medical examiner. Immediately on notification that a med ical examin er's case has occurred, the medical examine r or an inves tigator of the medical examiner shall go to and take charge of the body. The medical examiner or the investiga tor shall inves tigate fully the esse ntial facts concerning the medical cause of death and, before leaving the premises, reduce these facts and the names and addresses of witnesses to writing, which shall be filed in the medical examiner's office. (d) Evidence. The medical examiner or the investiga tor shall take possession of and de liver to the State's Attorney or the State's Attorney's designee any object or article that, in the opinion of the medical examiner or the investigator, may be useful in establishing the cause of death. The pers on w ho perfo rms t he au tops y must prepare detailed written findings during the (contin ued...) -32- 18 (...continued) progress of the autopsy that are required to be filed in the office of the medical examiner for the county where the death occurred[, with t]he original copy of the findings and conclusions to be filed in the Chief Medical Examiner s office. Md. Code (1982, 2005 Repl. Vol.), § 5-310 (d)(1) of the He alth General Article. The duties of the Chief Medical Examiner in regard to records is detailed in Md. Cod e (1982, 2005 R epl. Vol.), § 5-311 of the Health General A rticle, which p rovides in p art: (a) Content. (1) The Chief Medical Examiner and, as to the ir respective counties, each of the deputy medical ex aminers sh all keep complete records on each medical examiner's case. (2) The records shall be indexed properly and include: (i) The name, if known, of the deceased; (ii) The place where the body was found; (iii) The date, cause, and manner of death; and (iv) All other available information about the death. (b) Report of medical examiner and autopsy. The original report of the medical examiner who investigates a medical exam iner's case and the findings and conclusions of any autopsy shall be attached to the record of the medical examiner's case. (c) Delivery to the State s Attorney. The Chief Medical Examiner or, if the Chief Medical Examiner is absent or cannot act, the Deputy Chief Medical Examiner or an assistant medical examiner, and each deputy medical examiner promptly shall deliver to the State's A ttorney for the c ounty where the body was found a copy of each re cord that rela tes to a death for which the medical exam iner con siders f urther in vestiga tion adv isable. A State's Attorney may obtain from the office of a medical examiner a copy of any record or other information that the State's A ttorn ey con siders ne cess ary. (d) Evidence. (1) In this subsection, "record": (i) Means the result of a view or examination of or an autopsy on a body; and (ii) Does no t include a state ment of a witness or other individ ual. (2) A record of the office of the Chief Medical Examiner (contin ued...) -33- preparation of the autopsy report was not for use in a criminal trial. 19 It is clear that there is a statutory duty to prepare such a report when a death has occurred in any suspicious or unusual mann er. M d. Cod e (1982 , 2005 R epl. Vo l.), § 5-309(b) of the Health General Article. At the occurrence of a suspicious death, the medical examiner is required to make a determination as to cause of death and to generate an autops y report. This de termination is not always used at a later criminal trial. When the report is offered as evidence against the defendant at trial, in a criminal case, we conclude that an autopsy report is not per se testimonial in light of Crawford. The trial court must determine whether the report contains testimonial or non-testimonial hearsay statements. The testimonial statements may not be adm itted aga inst the d efend ant at trial , unless the declarant is unavailable an d there was a p rior opp ortunity fo r cross-e xamin ation. 1. Contested Conclusions of Opinions vs. Non-Analytical Findings That Are Objectively Ascertained Petitioner contends Dr. Pestan er s remaining statements in the autopsy report were 18 (...continued) or any deputy medical examiner, if made by the medical examiner or by anyone under the medical examiner's direct supervision or control, or a certified trans cript of that record, is competent evidence in any court in this State of the matters and facts conta ined in it. 19 We also distinguish Snowden from the instant case on the grounds that the out-ofcourt statements in Snowden, accusatory statements from the victims alleging sexual abuse by the defendant, clearly fit within one of the enumerated categories of testimonial sta tements in Crawford. -34- contested conclusions, rather than non-analytical findings, and thus were testimonia l in nature, per Crawford, because they proved an element of the crime and should not have been admitted without allowing petitioner to confront Dr. Pestaner. We disagree. Although Dr. Pestaner was not present to testify, we conc lude that the s tatements included in the autopsy report, as admitted, were findings as to the physical condition of Ms. Ebberts s body. They were non-analytical findings that we do not view to be part of the core class of testimonial statements that the Confrontation Clause is intended to prevent. The findings included in the autopsy report to which petitioner objects include:20 (1) that there was a superficial hemorrhage on the gumline of Ms. Ebberts, (2) that there were fresh bruises on Ms. Ebberts s arms, and (3) that Ms. Ebberts s corneas were cloudy. Petitioner argues whether something is cloudy or not is a matter of interpretation. Rollins also argues that he should have had the opportunity to cross-examine Dr. Pestaner to determine whether the 20 Petitioner also objects to Dr. Ripple s consideration of Dr. Pestaner s handwritten notes with regard to an observation of greenish discoloration on Ms. Ebberts s abdomen, a decom positional ch ange that ca n aid in dete rmining the time of de ath of a vic tim. While Dr. Pestaner noted that he observed greenish discoloration on Ms. Eb berts s abdo men, he d id not include this in formation in the autopsy report. As we state in part II of this opinion, we find no error in Dr. Ripple s consideration of Dr. Pestaner s notes, which would include any notes that refer to greenish discoloration o f Ms. Ebbe rts s abdomen. Consideration of the entire medical examiner s file on a particular victim, including the notes, is a common practice among medical examiners, and medical experts, in rendering an expert opinion as to cause of death. Dr. Ripple testified such consideration was the standard practice, and petitioner has not contrad icted that statem ent. Insofar as Dr. Pestaner s notes would have required Dr. Pestaner to be present for cross-examination, we disagree. Petitioner has failed to show the significance of the omission of this f act from the auto psy repo rt. -35- corneal cloudiness noted in the autopsy report could have occurred during the refrigeration of Ms. Ebberts s body before the autopsy was performed. At oral argument in this Court, defense counsel stre ssed the sub jectivity of this classif ication. The autopsy repo rt simply stated, The corneae w ere cloudy. The defense expert, Dr. James Frost, medical examiner for the State of Delaw are, testified that he observed the very slightest amount of corneal clouding which is a post-mortem change. Dr. Frost went on to opine that if Ms. Ebberts had been dead for three days and h er eyes had been open, there would be extensive corneal clouding. The Court of Special Appea ls rejected R ollins s conte ntion that ch aracterization s in the autopsy report such as chron ic, acute, an d cloudy a re matters of interpretation th at, acco rdingly, constitute opinions. The cou rt characterized those terms as descriptive, and stated that such term s may be ob jectively quantifie d; thus, they are n ot subject to significantly different interpretations by the witnesses. More importantly, the descriptive terms in question only tangentially touch upon the matters in dispute regarding corpus de lecti or criminal agency. Rollins , supra, 161 Md. App. at 79, 866 A .2d at 952. T he interme diate appellate court reviewed the rep ort regarding the eleven m ajor systems of Ms. Eb berts s body21 and concluded that the findings were virtually all descriptive, rather than an alytical. 21 The interm ediate appellate court noted the following three sections of the autopsy report as illustrative of the medical examiner's findings of the condition of the deceased which were o bjective ly ascertain ed, gen erally reliab le, and n ormally u ndispu ted. HEAD: (CENTRAL NERVOUS SYSTEM) (continued...) -36- (...continued) The scalp is reflected. The calvarium of the skull was removed. The dura mater and falx cerebri were intact. There was no epidural or subdur al hemorrh age presen t. The lepto menin ges were thin and delicate. The cerebral hem ispheres were symmetrical and congested. These structures at the base of the brain, including cranial nerves and blood vessels, we re intact. Coronal sections through the cerebral hemispheres revealed no lesions. Transverse sections through the brainstem and cerebellum were unremarkable. The brain weighed 1320 grams. CARDIOVASCULAR SYSTEM: The pericardial surfaces were smooth, [g]listening and unremarkable; the pericardial sac was free of significant fluid and adhesion s. The coro nary arteries aros e normally, foll owed to the usual distribution and had atherosclerosis as follows: left anterior descending artery and left circumflex artery with 10-30% stenosis and the right corona ry artery had 50-60% stenosis. The chambers and valves exhibited the usual size position relationship a nd were unremark able. The le ft ventricular free wall was 1.6 c m in thickness. The myocardium was dark red-brown, firm and unremarkable; the atrium and ventricular septa were intact. The aorta and its major branches arose norma lly, follow ed the u sual co urse, and had marked atherosclerosis. The venae cavae and their major tributaries returned to the heart in the usual distribution and were free of thrombi. The heart weighed 350 grams. RESPIRATORY SYSTEM: The upper airway was clear of debris and foreign material; the mucosal surfaces were sm ooth, had scattered erythema w ith yellow mucus in branching airways. The pleural surfaces had posterior adhesions with scattered bullae that were u p to 5 cm. The pulmonary parenchyma was red-purple, ex uding sligh t to moderate amounts of frothy edema; the right middle lobe was focally firm and had dark discoloration. The pulmonary arteries (continued...) -37- Id. (Footnote omitted.) The Court of Special Appeals ultimately held: We hold that the findings in an autopsy report of the physical condition of a decedent, which are routine, descriptive and not analytical, which ar e objectively asc ertained an d generally reliable and enjoy a generic indicium of reliability, may be received into evidence without the testimony of the examiner. Where, however, contested conclusions or opinions in an autopsy report are central to the determination of corpus de lecti or criminal agency and are offered into evidence, they serve the same function as testimony and trigger the Sixth Amendment right of confrontation. Id. at 82, 86 6 A.2d at 954. The autopsy report in the instant case was redacted to omit any informatio n that could be construed as an opinion. In its discussion of hearsay exceptions in the context of the Confrontation Clause in Crawford, the Supreme Court referred to exceptions that covered statements that by their nature were not testimonial. The redaction of the autopsy report places the report into the category of non-testimonial hearsay as contemplated by the Supreme Court. We are not convinced that Dr. Pestaner s s pecific find ings that rem ained in the autopsy report were of the type that amounted to contested conclusions, and the defense has presented no case law that supports that conten tion. The C ourt of Sp ecial App eals rejected Rollins s contention that, absent the testimony of the person who prepared an autopsy report, the distinction between fact and opinion in an autopsy repo rt no long er plays (...continued) were normally developed, patent and without thrombus or embolus. The right lung weighed 610 grams; the left 490 grams. Rollins, 161 Md. App. at 79-80 n.12, 866 A.2d at 952-53 n.12. -38- a role in determ ining wh ether the ad mission of that report violates the accused s right to confrontation. Rollins, 161 Md. App. at 76, 866 A.2d at 950 (footnote omitted). In doing so, the court stated: Contrary to [Rollins's] position, fact as defined in [Ward v. S tate, 76 Md. App. 654, 547 A.2d 1111 (1988)], continues to be squarely within the firmly fixed exceptions to the hearsay rule. The objectively obtained findings of the physical condition of the victim, not subject to interpretation, constitute the facts. Id. Although the Ward case is distinguishable in that it involved psychiatric evaluations,22 the case is illustrative . We noted in Ward that the fact that a hospital record may be generally admissible as a business record, against either a hearsay or confrontation objection, does not necessarily mean that each and every en try in it is so a dmissib le. Id. at 659-60, 547 A.2d at 1114 . The Court of Special Appeals relied upon Gregor y v. State, 40 Md. App. 297, 391 A.2d 437 (1978), quoted with approval in State v. Garlick, 313 Md. 209, 220-21, 545 A.2d 27 , 32 (1988 ): The mere fact that a document is part of a hospital record made 22 In Ward, the State called an expert witness to rebut expert testimony presented by Ward that he suffered from Post Traumatic Stress Syndrome and was legally insane at the time he shot the victim to death. Ward, 76 Md. App. at 657, 547 A.2d at 1112. The exp ert doctor was a pa rt of a multi-d isciplinary team th at consisted of additional psychiatrists, psychologists, one so cial wo rker, on e occu pationa l therapi st, and one nurse. Id. Each psychiatrist and psychologist d iagnosed Ward s m ental state inde pendently and the team met and voted on Ward's official diagno sis. Id. at 657, 547 A.2d at 1112-13. Over objection, the expert witness testified that the vote on Ward's condition was unanimous, and Ward complain ed that the d octor has ef fectively testified, n ot only to his own diagnosis, but also to the diagnoses of the other psychiatrists and psychologists on the team who were not called to testify at tr ial. Id. at 657, 547 A.2d at 1113. -39- in the ordinary co urse of the hospital's busin ess, and may therefore be admissible under the h earsay rule, doe s not ipso facto make its ad mission co mply with the confron tation require ment . . . . We have here not the routine record of a person's birth, or death, or body temperature, nor any other similar statement of fact or condition objectively ascertained , generally reliable and normally undisputed, a nd free f rom any m otive to recor d fal sely. We are dealing with the opinions of supposed expert witnesses, who, in this document, are giving testimony not only as to appellant's mental co ndition, but, m ore impor tantly, as to wheth er or no t he is crim inally resp onsible . Id. at 660, 547 A.2d at 1114 (quoting Gregory, supra, 40 Md. App. at 325-26, 391 A.2d at 454). As noted in Ward, the intermedia te appellate co urt in Gregory focused on the recognition that psychiatry is not an exact science and that opinions as to mental condition vary widely. Id. at 660-61, 5 47 A.2d at 1114. T he court in Ward noted that th e issue of a criminal defendant's mental condition was highly contentious and [t]his kind of d iagnosis does not lend itself to objective confirmation. It is not something that can be validated by microscopic, chemical, or other precise scientific examination but remains prim arily a matter of opinion based principally upon a train ed profe ssional's eval uatio n of the subje ct's behavior and responses to psychological testing. Unlike the kinds of medical facts noted in Gregory or medical conclusion s having a more objective foundation, such as blood tests, this kind of opinion, especially where contested, is not so cloaked with a substantial indicium of reliability as to escape the need for confrontation. Id. at 661, 547 A.2d at 1114. In the instant case, the disputed statements in the autopsy report made by Dr. Pestaner focused on conditions that could be physically observed, rather than a mental diagnosis, such -40- as the one at issue in Ward, which was high ly subjective in nature. The observa tions of Dr. Pestaner are more in line with the findings of medical examiners that constitute nonanalytical findings that are objectively ascertained i.e., the determination and description of the we ight, cha racteristic s and d escriptio n of the decea sed. Petitioner objected to the fact that Serge ant Rose Brad y, a detective of the Baltimore County Homicide Division, sent Dr. Pestaner a facsimile transmission.23 23 Petitioner claims that he was denied the opportunity to question Dr. Pestaner as to the impact that th e facsimile transmission had on his determination of cause of death. Any such exa mination, at b est, would have affected only the weight of the evidence and not the admissibility of the autopsy report itself. Becau se Dr. Pesta tner s conc lusions as to smothering and cause and manner of death were redacted from the report, any alleged influence upon Dr. Pestaner to conclude that Ms. Ebberts was smothered was no longer an issue in the case. Sergeant Brady sent the facsimile before Dr. Pestaner completed his autopsy findings. The fax stated: Joe, please review. T his guy is too dangerous to leav e out. We are . . . getting the murder warrant for him, without cause of death. The record of th e pre-trial hearing concerning the commu nications between Sgt. Brady and Dr. Pestaner shows that defense counsel also had correspon ded with Dr. Pestaner, at least twice prior to trial. In addition, defense counsel conceded during his examina tion of Dr. Ripple that he had talked with Dr. Pestaner about the case prior to the motions hearing. On October 20, according to notations contained in the activity log portion of the medical examiner s files, D r. Pestaner indicated on the death certificate that the cause of death was pending completion of the autopsy. On October 22, Sgt. Brady sent Dr. Pestaner the fax transmission indicating tha t she planne d to charge Rollins with murder without a finding as to cause of death. There was testimony that Dr. Pestaner w as ready to off icially report his findings as to cause of death as of October 22; however he waited to report those findings pending further discussions with the detectives involved in the case. Finally, on October 26, Sgt. Brady aske d Dr. Pesta ner to wait until Monday to officially am end the de ath certificate and rele ase the c ause of death. (contin ued...) -41- In addition, petitioner objected to several objective findings made by Dr. Pestaner contained 23 (...continued) The motions judge was aware of this background information surrounding the official reporting of the cause of death. He evaluated the report carefully and redacted from the autopsy report those conclusions, evaluations, or opinions that were testimonial in nature. The parties agreed that those redactions did in fact occur. Ordinarily, if the trial judge concludes that the source of information or the method or circumstances of the preparation of the [autopsy] report indicate[s] that the information in the report lacked trustworthiness [,] the court ma y refuse to admit the autopsy repo rt into evidence. Rule 5-80 3(6). In this case, no such f inding w as made a nd the trial jud ge did not err in admitting the redacted re port into evidence. As to the Confrontation Clause analysis, Rollins makes n o specific contention that the commun ications between Sg t. Brady and Dr. Pestaner were either testimonial or hear say. See Ma rquardt v. S tate, 164 Md. App. 95, 882 A.2d 900 (2005) (no ting that for Confrontation Clause anaylsis, if . . . [the stateme nt] is nontestimonial it need only conf orm to Ma ryland s ru les rega rding h earsay ). Furthermore, pursuant to Crawford, where utte rances are n ot being of fered for th eir truth then they are not testimonial evidence in any sense and the admission of those utterances do not implicate the Confrontation Clause . See Crawford, 541 U.S. at 51, 124 S. Ct. at 1364 . Thus, Roberts is still good law where testimonial statements are not involved. Crawford v. Washington, 541 U.S. at 55-56, 124 S. Ct. a t 1366-67. In the instant case, neither the facsimile transmission from Sgt. Brady, nor the evidence of conversations between Dr. Pestaner and the detectives were off ered for their truth. Instead, both we re offered to show that the police influenced Dr. Pestaner s ultimate determination of Ms. Ebberts s cause of death. Co nsequently, per Crawford, both communications were neither testimonial evidence nor hearsay and did not implicate the Confrontation Clause. Fina lly, during the investigation of a suspicious death, we do n ot endorse any communication between the police and the Medical Examiner s Office that exceeds the boundaries establish ed by law . We can only base our re view of th e nature of the facsim ile transmission sent in the instant case on what is contained in the record, and we note that neither party subpoenaed either Dr. Pestaner or Sgt. Brady. We cannot find any evidence, beyond mere suggestion , that there was inappro priate contact between S gt. Brady and Dr. Pestaner. The facsimile alone does not amou nt to substan tive eviden ce of any inap propriate behavior. Both Maryland common and statutory law permit a medical examiner to consider information obtained from detectives as a result of the investigation of a suspicious death and the law permits comm unicatio n betw een the office s. -42- in the autop sy report. 24 One of the obje ctive finding s to which petitioner objected was the cloudiness of M s.. Ebberts s corneae. W hile Dr. Pes taner noted only that the corneae were cloudy, the defense did not establish that this classification was outside the normal realm of determinations of the medical exam iner, nor did it demonstrate that it would have been more appropriate for Dr. Pestaner to describe the corneae in increm ental de grees o f cloud iness. The defense was able to present its own expert witness who, upon viewing the photos of M s. Ebberts s eyes, came to a different conclusion about the degree of cloudiness in the corneae. Findings, such as those made by Dr. Pestaner with regard to the cloudiness of the corneae, w ere not only observab le by an experienced m edical examiner, 25 but in this case were corro borated by photographs of the victim s eyes. In fact, Dr. Frost, medical expert for the defense, used the same photos to view Ms. Ebberts s corneae and make his own determination that Ms. Ebbe rts s corn eae w ere clou dy, but on ly slightly so. The nature of Dr. Pestaner s determination was that of a State required and regulated, autopsy examination in which Dr. Pestaner was charged by law with examining the victim 24 Petitioner also objected to Dr. Pestaner s indication of a hemorrhage on Mrs. Ebberts s gum line. W ith regard to the hemo rrhages, petitio ner notes th at Dr. Pestan er did not photograph or diagram the hemorrh ages. We fail to see the import of the amount of documentation Dr. Pestaner employed in noting this injury. Dr. Pestaner described the location of the hemorrhage and took microscopic samples of tissue from the hemorrhage. There was n o evide nce in th e record that this p ractice w as unco mmo n or sus pect. 25 Dr. Ripp le was ask ed by the trial judg e if the cloud iness of the corneae was someth ing that s he cou ld perso nally obse rve, and Dr. Rip ple ans wered that she could. -43- and determining the manner and cause of death.26 As Chief M edical Examiner, D r. Pestaner s experienc e in making th ese types of as sessments was und oubtedly suff icient. The determination of corneal cloudiness made by Dr. Pestaner was descriptive of the perceived condition of the victim s eyes at the time reported. M oreover, our review o f the record indicates that the trial judge was fairly thorough and meticulous in his monitoring of the testimony of Dr. Ripple to prevent contested conclusions and opinions from being admitted, and in the admission of the redacted autopsy report and related documents, and at all times observed Rollins s righ t to confron tation. Dr. Pe staner s dete rminations generally were routine, descriptive, and generally reliable, and as such, was not testimonial. This type of information was properly admitted into evidence through the autopsy report without Dr. Pestan er s testim ony. 2. The Autopsy Report, as Redacted, Was Not Testimonial; Autopsy Reports A re Not Per Se Testimonial The opinion statements in the autopsy report were redac ted. We reject petitioner s contention that an autopsy report is per se testimonial pursuant to Crawford, and shou ld never be admitted into evidence without the testimony of the author of the report. First, we note that M aryland common law supports the contention that factual findings as to the physical condition of the victim s body, as described in an autopsy report, may be admitted 26 Medical examiners are required to record the date, cause and manner of death of an individual by Md. Code (1 982, 2005 Re pl. Vol.), § 5-311(a)(2)(iii) of the Health General Article. See -44- without the testimony of the person who prepared the report without violating the Confrontation Clause . See Bow ers v. State, 298 Md. 115, 136-37, 468 A.2d 101, 112 (1983). 27 Secondly, we n ote th e imp racti cal im plica tions to classi fying auto psy reports as inadmissib le testimonial hearsay because the person who prepared them is not presen t to testif y. As noted in Durio, years may pass between the performance of the autopsy and the apprehension of the perpetrator that can easily lead to the unav ailability of the examiner who 27 Bowers was con victed of th e first-degree premedita ted murde r of Mo nica McNamara. Bowers, 298 Md. at 120-21, 468 A.2d at 104. Bowe rs gave the M aryland State Police a statement in which he admitted to having sexual intercourse with the victim, but claimed that it was his accomplice w ho strangled her. Id. at 122, 468 A.2d at 105. Among other things, Bow ers argued that his cons titutional right to confron t the witness es against h im was violated by the admission of the autopsy report, unaccompanied by the testimony of the medic al exam iner wh o prepa red it. Id. at 136, 4 68 A.2 d at 112 . We concluded that the ad mission of the report did n ot violate Bowers s constitutional rights. In support of our conclusion, we referred to the decision of the Court of Special Appea ls in Grover v . State, 41 M d. App . 705, 3 98 A.2d 528 (1979). In Grover, the State introduced into evidence an autopsy report that contained a statement by a doctor w ho did not testify at trial. The Court of Special Appeals in Grover discounted the defendant s use of Gregor y v. State, 40 Md. App. 297, 391 A.2d 437 (1978), for the premise that the introduction of a document prep ared in w hole or in pa rt by a party not prese nt to testify in court violated Grover s Sixth Amendment right to conf rontation. Th e docum ents at issue in Gregory were various medical reports in which Gregory s mental capacity was evaluated. Due to the frequent differences of opinion in the field of forensic psychiatry, the Court of Special Appeals held that the opportunity to cross-examine a witness giving an opinion in that field w ould be very imp ortant. Grover, 41 Md. App. at 710, 398 A.2d at 531. Both this Court in Bowers, and the Court of Special Appea ls in Grover, factually distinguished each case on the basis that the submitted autopsy reports contained only findings as to the physical condition o f the victim and not op inions, and thus the ad mission of the reports without the testim ony of th eir respe ctive au thors w as perm issible. Bowers, 298 Md. at 137, 468 A.2 d at 112; Grover, 41 M d. App . at 710- 11, 398 A.2d a t 531. -45- prepared the autopsy report. At oral argument, in this Court, defense counsel was given a hypothetical about a situation in which the maker of an au topsy report dies before the date of trial. Defense counsel stated that, even in that situation, the maker o f the autopsy report would still be required to meet Crawford standards, a nd in the m aker s abse nce, the State would be required to prove the victim s d eath in ano ther mann er. This is una cceptable in prac tical application a nd is not s upported by Crawford. In the present case, the Circuit Court had before it an autopsy report prepared by the Maryland Medica l Examin er s Offic e that is otherw ise admissib le as a business record or as a public record pursuant to Md. Rule 5-80 3(b)(6) and Md. C ode (197 4 & 200 2 Repl. Vol), § 10-204 of the Courts and Judicial Proceedings Article. As we have already discussed, the statutorily required informatio n containe d in the auto psy report, as a business record, was not testimonial in nature, and therefore, did not violate Rollins s right to confron tation. We n ote the Supreme Court s statement in Crawford: Where [non-testimonial] hearsay is at issue, it is wholly consistent with the Fram ers design to afford th e States flex ibility in their development of hearsay law . . . as would an approach that exempted such statements from Confrontation Clause scrutiny a ltogethe r. Id. at 68, 124 S. Ct. at 1374. Here, petitioner has failed to demonstrate that the remaining contested statements in the redacted autopsy report are testimonial and, thus, subject to scrutiny under the Confrontation Clause. Although an autopsy report may be classified as both a business and a public record, it is the contents of the autopsy report that must be scrutinized in order to determine the -46- propriety of its admiss ion into eviden ce with out the te stimon y of its pre parer. If the autopsy report contains only findings about the physical condition of the decedent that may be fa irly characterized as routine, des criptive and not analytical, and those findin gs are gen erally reliable and are a fforded an in dicu m of relia bility, the report may be admitted into evidence without the testimony of its preparer, and without violating the Confrontation Clause. If the autopsy report contains statements which can be categorized as contested opinions or conclusions, or are centra l to the determination of the defendant s guilt, they are testimonial and trigger the protections of the Confrontation Clause, requiring both the unavailability of the witn ess and prior op portun ity for cros s-exam ination. II. If preserved , did the trial cou rt err in allowing the medical examiner to render an expert opinion regarding the cause and time of death of Ms. Ebberts? Rollins argues that Dr. Ripple should not have been permitted to testify as to the cause and time of Ms. Ebberts s death. Primarily, Rollins contends that, pursuan t to Md. R ule 5702, Dr. Ripple s testimony based upon Ms. Ebberts s file, lacked a sufficient factual basis. As to the time and cause of Ms. Ebberts s death, Rollins disputes Dr. Ripple s reliance on some contents of the medical examiner s file with regard to Ms. Ebberts and her review of all information surrounding the death, including information about the police investigation, in order to render her opinion. Rollins alleges that Dr. Ripple was allowed to render an expert opinion as to petitioner s guilt and that her testimony lacked the required factual basis per Md. Rule 5-702. -47- Prelimin arily, we must address the State s contention, contained in its cross-petition, that Rollins did not preserve his claim that the trial court improperly allowed Dr. Ripple s opinion that Ms. Ebberts died during the robbery. Defense counsel s o bjections to m ultiple aspects of Dr. Ripple s testimony, specifically with regard to Ms. Ebberts s cause of death, were clear upon review of the record. The defense objected to the questions both before and after the disputed statement, 28 but did no t object to the statement itself. Objections to opinion testimony must be made in a timely manner or else they are considered waived and not preserved for app ellate rev iew. M d. Rule 4-323(a) ( An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the 28 The following occurred during the period of questioning at issue: [THE STATE]: Are you able to say to a reasonable degree of medical probability or certainty as to the cause of death of Irene Ebberts? [DEFENSE CO UNSEL]: Objection. [THE COUR T]: Overruled. [DR. RIPPLE]: To a reasonable deg ree of me dical certainty Irene Ebberts died of asphyxia during the robbery and the physical f inding s indica te smoth ering. [THE STATE]: Now, can you explain I know you stated all the things upon which you base your opinion. Can you explain those and then how they relate to the expression of your opinion? [DEFENSE CO UNSEL]: Objection. -48- grounds for objection become apparent. Otherwise, the objection is waived. ). Because defense counsel did not object to , or mov e to strike , the unr espon sive state ment, i.e ., that Ms. Ebberts died durin g the robb ery, we hold that petitioner w aived any ob jection as to the time of death te stimon y. Thus, the remaining contention related solely to the cause of death and the fac tual bas is to sup port D r. Rippl e s con clusion s as to ca use of death. Expert testim ony is govern ed by Md . Rule 5-70 2 which provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient f actual basis e xists to supp ort th e exp ert te stimony. We l ook to M d. Ru le 5-703 to de term ine th e bas es of expert opinion te stimony: (a) In General. The fac ts or data in th e 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 reason ably 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. (b) Disclosure to Jury. If determined to be trustw orthy, necessary to illuminate testimony, and unprivileged, facts or data reasonably relied upon by an expert pursuant to section (a) may, in the discretion of the court, be disclosed to the jury even if those facts and data are not admissible in evidence. Upon request, the court shall instruct the jury to use those facts and data only for the purpose of evaluating the validity and probative value of the expert's opinion or inference. (c) Right to Challenge Expert. This Rule does not limit the right of an opposing party to cross-examine an expert witness or to test the basis of the expert's opinion or inference. -49- We set forth the s tandard of review fo r the qualification of experts in I. W. Berman Properties v. Porter Bros. Inc., 276 Md. 1, 344 A.2d 65 (197 5): The determination by the trial court of the experiential qualifications of a witne ss will only be d isturbed on appeal if there has b een a clear sho wing of abuse of the tr ial co urt's discretio n. Continental Ins. Co. v. Kouwenhoven, 242 Md. 115, 126, 218 A .2d 11, 1 7 (1966 ), citing Turner v. State Roads Com m'n., 213 Md. 428, 433, 132 A.2d 455, 457 (1957). See also 2 J. W IGMORE, E VIDENCE, s 561, at 643 (3d ed. 194 0). **** [T]he determination of whether a witness is qualified as an exp ert witness is g enerally within the discretion of the court, and will not be overturned unless his discretion has been manifestly abused to the prejudice of the complaining party. M. A. Re alty Co. v. Sta te Roads Commission, 247 M d. 522, 2 33 A.2d 793 (1967); State Roa ds Com mission v. C reswell, 235 Md. 220, 201 A.2d 32 8 (1964); Turner v. S tate Roads Commission, 213 Md. 438, 132 A.2d 455 (1957 ). **** In exercising th e wide dis cretion veste d in the trial cou rts concerning the admissibility of expert testimony, a critical test is whether the exp ert's opin ion wil l aid the tr ier of fa ct. Consolidated Mech. C ontrs., Inc. v. Ba ll, 263 Md. 328, 338, 283 A.2d 1 54, 159 (1971 )[.] Id. at 12-14, 344 A.2d at 73-74 (some internal citations omitted). When determining whether an expert s testim ony will assist the trier of fact, the court is required to determine (1) whether the witness is qualified a s an expe rt by knowledge, skill, experience, training or -50- education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to supp ort the exp ert testim ony. Buxton v. Buxton, 363 M d. 634, 6 50, 770 A.2d 1 52, 161 (2001 ) (citation omitted ). Dr. Ripple w as certified by the court, w ithout objec tion, in the field of forens ic path olog y. She was asked about Ms. Ebberts and testified: To a reasonable degree of medical certainty Irene Ebberts died of asphyxia during the robbery and the physical findings indicate smothering. The defense did not object to this statement when it was made no r did it ask to have the statement stricken from the record. As stated supra, petitioner w aived his objection as to time of death testimony. When asked what elements she based her opinion upon, Dr. Ripple stated: [DR. RIPPL E:] I will start by her physical findings, her natural disease processes. She is a debilitated, sic k individua l. So you have to look at her natural disease processes and be able to exclude them as a cause of death. So that involves medical records and then th e physical find ings that I w ent through with her pneumonia, her emph ysema an d her he art disea se. There is a difference between dying with disease and dying of disease. So with regard to the natural disea se processe s going on , that is the first thing. The second thing would be the investigation findings at the scene. Y ou can t work in a vacuum. You need all those pieces. So the inv estigative find ings indicate that foul play had occurred, that foul play being the robbery and ransacking of the house and, in addition, there are witnesses - am I now allowed to say that now? **** [THE STATE]: All right. You indicated that part of your -51- function is to look at or eliminate those diseases [ Ms. Ebberts s heart and lun g disea se] as a c ause of death. What do you base that upon or what is your conclusion and what do you base that upon? [DR. RIPPL E]: I base that on the severity of the findings of her disease process as well as other intervening circumstances through investigation and other physical findings of injury at all. [THE STATE]: . . . So you have indicated then that that finding has to go in conjunction with the other findings, is that what you are saying? [DR. RIPP LE]: Absolutely. You have to take it all together. [THE STAT E]: All right. So let s base it upon, if you can, what information you have rela ted so far, first o ff, the information you said that was provided by the police and then also your investigator s information and, I apologize, if you can pick it up back where you were. [DR. RIPPLE]: I was at the investigation point but I believe I had stated the findings of our investigator, of the ransacking and the robbery, the police reports indicating ransacking and robbery and some witness statements in the police reports; also the physical findings at autopsy. There was a hemorrhage in her mouth where it shouldn t be, indicating pressure on the mouth, hemorrhage, bleeding. That is indicative of smothering, pressure to the mou th in some manner from an external force, be it a hand, be it a pillow, something pushing on her mouth. And, in addition, so that would be the smo thering part. In addition, there are other injuries on her that you can t ignore also. They might not be part of the exact smothering but it is part of the injury that you have to take into consid eration. Of course smothering is holdin g some thing o ver the m outh. Just because I have bru ises in my arms doesn t mean tha t I m smothered. But she does have bruises on her arms as I stated. So she has additional injuries. -52- Rollins s primary obje ction to Dr. Ripple s testimony stems from her reliance on statements from certain witnesses contained in the medical examiner s file as part of the basis for her opinion that Ms. Ebberts was smothered. Rollins contends that this reliance on statements which co nstitute hearsa y provided D r. Ripple w ith an insuff icient factua l basis for her opinion. The Medical Examiner s Investigation Report contained the following, inter alia, in the comm ents section: Circumstances: Per Det. Childs. A week or so ago another lady in the decedent s neighborhood wrote a letter saying that a local handyman had said he was going to break in to the decedent s house , smoth er her an d steal h er mon ey. The Baltimore County Police Department s Investigative Correspondence form also included a statement that read: A nephew related that a former yard worker made statements months ago that he wa s going to sm other the vic tim and stea l her mone y. This is why R ollins is listed as a possible suspect. In discussing the medical examiner s file, Dr. Ripple testified that it included numerous documents supplied by the Baltimore County Police Department, including the police report and a statement made by Rollins. Also included was the Statement of Charges and a summary of conversations that Det. Childs had with witnesses. When asked about the importance of the statements of witnesses to both her own and Dr. Pestaner s opinion, the following exchange occurred: [DEFENSE COUNSEL ]: And it is true, is it not, that Dr. Pestaner bases his co nclusions in this case in part on the statements of these various individuals? -53- [DR. RIPPLE ]: That is one of the pieces of th e puzzle. T hat is one part of the investigation that was used to reach our conclu sions. [DEFENSE COUNSEL ]: And, in fact, that is part that is part of the basis for your conclusion in this case? [DR. RIPPLE]: That is one of the pieces. There are many other things, many other areas of the investigation that are involved. But that is one of the pieces. [DEFENSE COUNSEL ]: One of the pieces. And, in fact, let me ask you this, could you reach without this information that was provided by the police that is in your file let me ask you this. You are basically assuming that the information in these statements is in fact true, is that rig ht? [DR. RIPPLE ]: Yes. **** [DEFENSE COUNSEL]: Let me ask you, to what exten t are your findings in this case based on that information? [DR. RIPPLE]: Like I said, it is one piece of the puzzle. Investigation scene sho wed a h ouse that ha d been ro bbed, in extreme disarray. That is a large piece of the puzzle. Our autopsy findings are another large piece of the puzzle; and this is another piece. [DEFENSE COU NSEL ]: Okay, if you do not consider this last piece of the puzzle, can you make any conclusions regarding cause and manner of death in this case? [DR. RIPPLE ]: Yes. [DEFENSE COUNSEL]: Based on what? [DR. RIPPLE]: B ased on th e fact that w e have an elderly individual who is debilitated in a house through investigation -54- that shows that foul play has occurred, meaning robbery, ransacking, et cetera. And then we also have th e hemorra ges in the arms and the hemmorage in the mouth. So to a reasonable degree of medical certainty this woman was asphyxiated during a robbery and the physical findings indicate smothering. [DEFENSE COUNSEL ]: But based on the physical findings themselves, would you reach that same conclusion? [DR. RIPPLE]: We never make ca use and m anner of d eath determinations on physical findings alone. It is part of our job to consider everything. [DEFENSE COU NSE L]: I un derstan d that. But my question is could you make that determination based on the physical findings alone? [DR. RIPPLE]: No. Because I just stated we have to have investigation involved also. Dr. Ripple testified that, when investigating a death, the medical examiner s office relies on law enforcement to provide it with information surrounding the history of the death, which requires obtaining an account of the events leading up to or surrounding the death of the individual from law enforcement, relatives, witnesses [and] other physicians that took care of the patient. D uring trial, Dr. R ipple was asked w hat could b e included in the medical examiner s file and she included autopsy reports and photographs with toxicology, rough body diagrams, all written findings associated with the case, ancillary studies, a flow sheet that shows communication with certain individuals with regard to the case, medical records, police reports of various types, photos, and sometimes witness statements. D r. Ripple explained her findings and stated that she based her conclusions on th e investigative -55- findings of our investigator and the police, the physical findings of the autopsy, including microsco pic sections and a review of her health records. The investigative findings of the police d id includ e some witnes s statem ents in th e police report. We begin our analysis by revisiting o ne of the iss ues we d ecided in Ellsworth , supra. Ms. Ellsworth offered testimony from Dr. Steph an Spivak , a professo r at the Univ ersity of Maryland, concerning the contents of the reports at issue to illustrate the basis of her expert s opinion testimo ny. Id. at 602, 495 A.2d at 359. Dr. Spivak testified that M s. Ellsworth s nightgown was defective and unreasonably dangerous due to its flammability and that the Federal stan dard wa s insufficien t in its protecti on. Id. To supp ort his opinion, Dr. Spivak sought to review data taken f rom the reports, averring that the data in the reports was recognized as reliable and regularly used by memb ers in his field. Id. at 602-603, 495 A.2d at 359. The trial judge ruled that any testimony rega rding the da ta contained in the reports was in admiss ible as h earsay. Id. at 603, 4 95 A.2 d at 359 . We held that, while the proffered evidence did meet the definition of hearsay, it cou ld be admitted for the limited purpose of explaining the basis for the expert s opinion. Id. In support of our holding we noted our decision in Attorney G rievance C omm'n v. Nothstein , 300 Md. 667, 679, 480 A.2d 807 (1984) (quoting D. B INDER, H EARSAY H ANDBOOK § 1.01, at 451 (2d ed. 1983 )): The federal co urts and a m ajority of state cou rts permit an expert witness to express an opinion that is based, in part, on hearsay of a kind that is customar ily relied on by experts in that particular -56- business, profession, or occupation. However, the hearsay itself is not adm issible as substantive evidence. It is only admissible to explain the basis of the ex pert's opinion. In other words, the trier of fact is allowed to give credence to an expert's opinion that is based on the assumption that certain hearsay is true, but is not a llowed to give credence to the hearsay itself. This rule has lon g been ac cepted in Ma ryland. Consol. Mech. Contractors v. Ball, 263 Md. 328, 283 A.2d 15 4 (1971); Airlift, Ltd. v. Bd. of Co. Comm'rs, 262 Md. 368, 278 A.2d 244 (1971); Baltimore & O.R.R. v. Hammond, 128 Md. 237, 97 A. 532 (1916); Baltimore City v. Hurlock, 113 Md. 674, 78 A. 558 (1910). Id. We con cluded tha t Ms. Ellsw orth was e ntitled to elicit from her expert the reasons for his opinion and, because a proper foundation for the introduction of statistical information contain ed in the reports w as prese nted, the eviden ce shou ld have been a dmitted . Id. In the instant case, we disagree with Rollins s contention that Dr. Ripple relied upon improper information to render her expert opinion. Dr. Ripple s consideration of the medical examiner s file in its entirety was proper. She testified that a review of all aspects of the file, including the criminal investigation, was necessary to form her opinion and was the accepted practice in her field. This was not disputed by the defense. As we have reiterated, Maryland law permits exp erts to expres s an opinio n based p artly upon hearsay evidence if the hearsay is of a type typically re lied upo n in their field. See Ken t Vill. Assoc. Jo int Venture v. Smith, 104 Md. App. 507, 524, 657 A.2d 330, 338 (1995) (holding that an expert in rehabilitation counseling could rely upon medical personnel, social workers and psychologists in order -57- to get the full picture to determine the future health care expenses of an injured child, because such relianc e was cu stomary in her f ield). Dr. Rip ple testified that it was the common practice in her field, and one of her duties, to review th e medical e xaminer s file in its entirety, including communications with the police and statements of witnesses. These aspects of the case were all considered by Dr. Ripple to be pieces of the puzzle that she was requ ired to assess b efore com ing to a conc lusion. This assessment includes review of all facts surrounding the victim s death. Section 3-511(a)(2)(iv)of the Health General Article provides that each of the deputy medical examiners shall keep complete records on each medical examiner s case and that these records shall include, among other things, all other available informatio n about th e death. Section 5-309(c) of the Health General Article also provides that, upon a determination by the sheriff or police that a death under one of the enumerated circumstances in § 5-309(a)(1) has occurred, [t]he medical examiner or the investigator shall investiga te fully the essen tial facts concerning the medic al cause of dea th. Even if the witness statements were hearsay, the statements were the type of hearsay regularly relied upon by medical examiners in the formation of their conclusions. Rollins argues that Dr. Ripple was allowed to render an expert opin ion as to petitioner s guilt and tha t Dr. Ripple determine d credibility and re solved co nflicting fac ts based on doc umen ts and w itness sta temen ts given to the po lice. W e note that this Court rejected an argument similar to petitioner s in Sippio v. State, 350 Md. 633, 714 A.2d 864 (1998), where Sippio contested the admission of the testimony of the medical ex aminer, Dr. -58- Smialek, that the victim s cause of death was a gunshot wound to the head, and the manner of death was homicide. In determining the propriety of the admission of Dr. Smialek s testim ony, we noted that Dr. Smialek had been qualified as en expert in the field in which he was testifying, the subject matter about which Dr. Smialek testified was appropriate since he had performed the auto psy29 and conducted the investigation, and that his testimony aided the trier of fact. Sippio, 350 Md. at 649 -51, 714 A.2d at 87 2-74. In rejecting Sippio s argument that Dr. Sm ialek s testimony was inadmissib le because it resolved a c onflict in evidence and because it related to the credibility of a witness, we noted: Dr. Smialek s testimony as to man ner of death did no t resolve a conflict in evidence. Expert opinion testimony, like any opinion testimony, is designed to introduce, bolster, or place doubt on evidence properly admitted before the trial court. The fact that Petitioner and Respondent have different theories of [the victim s] death in no way precludes either party from introducing evidence that tends to support or place doubt on previously admitted evidence. Sim ilarly, Dr. Smialek s testimony did not reso lve a questio n of Sipp io s credibility merely because Sippio denied the sho oting w as delib erate. Had Dr. Smialek testified that Sippio s cre dibility was que stionable based on statements Sippio made before or during trial, an exclusion of suc h testim ony mig ht have been p roper. D r. Smiale k, how ever, did not opi ne on S ippio s c redibility. Id. at 652-53, 714 A.2d at 874. In the instant case, Dr. Ripple did not opine on Rollins s 29 The fact that Dr. Smialek h ad perform ed the auto psy on the victim in Sippio was not the sole reason for our decision that the subject matter that Dr. Smialek testified about was appropriate. We noted Dr. Smialek s testimony concerning his knowledge of Sippio s statement to police that he had shot the victim, taken together with the investigation, allowed him to reach the conclusion that the victim s death w as a hom icide. Sippio, 350 Md. At 65051, 714 A.2d a t 873. -59- guilt, she opined, in her expert opinion, that Ms. E bberts died of smothering and that the time of death of th e vic tim c oinc ided with the ti me o f the robb ery. 30 We also point ou t that the hearsay at issue in the medical examiner s file was otherwise admissible as the declarant, D ebra Dehne, testified at trial rega rding her sta tements and was sub ject to cross-ex amination . A search of the reco rd sugges ts that the statements contained in the police and medical examiner s investigation reports constitute the hearsay with which the defense is conc erned. Ms. Dehne was a former neighbor of Ms. Ebberts and testified at Rollins s trial. Ms. Dehne testified that, in the Spring of 2001, Ro llins told her that he could kill Ms. Ebberts and then went on to explain how he would do so by tak[ing] a pillow [and] put[ting] it over [Ms. Ebberts s] head. Ms. Dehne wrote down the details of this statement and gave the information to the police when they w ere called to Ms. Eb berts s home. Rollins had been staying in M s. Dehne s home in the Spring of 2001 . Accordin g to Ms. Dehne s testimony, Rollins originally came to her hom e because he was a cquainted with 30 We decline to follow those cases cited by petitioner in support of his argument that Dr. Ripple im permissibly resolved questions of fact through her testimony. Two cases that petitioner cites, State v. Vining, 645 A.2d 20 (Me. 1994) and Maxwell v. State, 414 S.E.2d 470 (Ga. 1992), are distinguishable from the present case. In both Vining and Maxw ell, the medical examiners based their opinions on the respective causes of death of the victims solely on info rmation given to them b y police d etective s. See Ma xwell, 414 S.E.2d at 473-74 (citations omitted), State v. Vining, 645 A.2d at 20-21 (footnote and citations om itted). In the instant case, D r. Ripple clearly testified that she based her opinion on the information gathered from police in the process of the medical examiner s investigation in conjunction with the find ings at th e scene , the auto psy repo rt and M s. Ebbe rts s me dical rec ords. -60- her nephew, Tony Spence.31 Ms. De hne testified regarding th e letter during trial, was crossexamined on its contents, and authenticated the document. Clearly, Rollins was able to confro nt Ms . Dehn e regard ing her stateme nts. It has been a long-standing principle in Maryland law that the opinion of an expert witness, the grounds upo n which it has been formed, and the w eight to be accorded to it are all matters for the consideration of the jury. Marshall v. Sellers, 188 Md. 508, 518, 53 A.2d 5, 10 (1947) (citing Davis v. Sta te, 38 Md. 15, 41 (1 873)). The med ical expert witnesses provided by the defen se in the present c ase review ed the sam e materials as Dr. Ripp le and used those materials upon which to base their opinion, and all experts were cross-examined. See Ma ryland v. C raig, 497 U.S. 836, 846, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990) (citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) ( Cross-examination is the greatest legal engine ever invented for the discovery of truth. )). All experts, including Dr. Rip ple, were subject to cross-examination about their findings; once the experts opinions were admitted, it was with in the provin ce of the trier o f fact to determ ine wh ich exp ert shou ld be be lieved. We reject petitioner s theory that the admission of an autopsy report, without the testimony of its preparer, is a per se violatio n of the Conf rontatio n Clau se. Bowers makes 31 With regard to the statement contained in the Baltimore Co unty Police Departmen t s Investigative Correspondence form regarding a nephew, it is not clear to w hom this statement is referring. It could be concluded that the nephew referred to in the statement is Ms. D ehne s nephe w, To ny Spen ce. -61- it clear that an autopsy report may be admitted without the testimony of the physician who prepared it. An autopsy report, however, should be supplem ented at trial with expert testimony in regard to the manner of death. See Joseph F. Murphy, Jr., Maryland Evidence Handbook § 804(D)(1) at 328 (3d ed. 1999) (citing Benjamin v. Woodring, 268 Md. 593, 608-609, 303 A.2d 779, 788 (1973)). Our decisions in Benjamin v. Woodring and in Sippio, supra, support the proposition that, while the determination of manner o f death is clea rly within the purview of the medical examine r, the manner of dea th portion of an autop sy report should be supplemented with expert testimony at trial. In the instant case, consistent with the requireme nts of Maryland law, Dr. Ripple s testimony supplem ented the au topsy report bo th as to manner and cause of death. The autopsy report in the instant case, as redacted, contained non-testimonial hearsay statements in nature that were admissible under either the business or public records exceptions to the hearsay rule. Although the autopsy report fell within both the business and a public record exceptions, the trial court was correct to review the contents of the autopsy report to determine the propriety of its admission into eviden ce withou t the testimon y of its preparer. As redacted, the autop sy report contained merely findings abo ut Ms. Ebberts s physical condition th at could be characterize d as routine , descriptive, an d non-an alytical. Acc ordingly, we find no error in the admission of the report into evidence without the testimony of Dr. Pestaner and find no violation of pe titioner s rights pursuant to the Conf rontatio n Clau se. -62- JUDGMENT OF THE COURT OF SPECIA L APPEA LS AFFIR MED. COSTS TO BE PAID BY THE PET ITIO NER . -63-
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