STATE v. WEST (2026)

This matter is before us on remand from the Louisiana Supreme Court. State v. West, 2024-00133 (La. 1/28/25), 399 So.3d 405 (per curiam) (on rehearing). For the following reasons, we affirm the convictions and sentences.

PROCEDURAL HISTORY

Defendant, Larry West, was charged by amended grand jury indictment with one count of second degree murder (count I), a violation of LSA-R.S. 14:30.1(A)(1); one count of attempted second degree murder (count II), a violation of LSA-R.S. 14:27(A) and 14:30.1(A)(1); and one count of possession of a firearm by a convicted felon (count III), a violation of LSA-R.S. 14:95.1(A). After entering a plea of not guilty on all counts, a jury trial was held, and defendant was found guilty on all counts.

On count I, defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On count II, he was sentenced to a concurrent term of twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. On count III, defendant was sentenced to a concurrent term of twenty years at hard labor without benefit of probation, parole, or suspension of sentence.

Defendant appealed, and this court affirmed defendant's convictions and sentences. See State v. West, 2023-0286 (La.App. 1 Cir. 12/27/23), 2023 WL 8923503, *1 (unpublished). Thereafter, defendant applied for a writ of certiorari to the Louisiana Supreme Court, which was granted, denying him relief and affirming the judgment. See State v. West, 2024-00133 (La. 11/6/24), 395 So.3d 867 (per curiam). Defendant applied for rehearing, and the supreme court granted the rehearing, vacated its previously issued per curiam, and remanded to this court to reconsider defendant's confrontation clause claim in light of the United States Supreme Court's decision in Smith v. Arizona, 602 U.S. 779, 803, 144 S.Ct. 1785, 1802, 219 L.Ed.2d 420 (2024), which was decided after this court's original opinion. See West, 399 So.3d at 405-06.

FACTS 1

On February 10, 2018, at approximately 9:00 p.m., Torray Darnell Collins (the victim of the attempted second degree murder), Christopher Carter (the victim of the second degree murder), and a group of their friends (the group) were hanging out on Mayer Street in Maringouin, when a pickup truck driven by defendant's uncle, Danny Dale Smith, and occupied by defendant and a third unidentified person, passed by. Although someone in the truck rolled down a window, the truck continued down the road without incident.

However, Smith drove the truck back to where the group was located and parked. According to Collins, all three of the occupants then exited the truck, and defendant approached the group with a gun tucked under his arm. Collins testified that after “some words passed,” defendant shot Collins in the right leg and then shot Carter, who immediately collapsed. Carter was pronounced dead on February 11, 2018, at 1:54 a.m. His cause of death was a gunshot wound to the head. Multiple witnesses identified defendant as a person involved in the shooting.

RIGHT TO CONFRONTATION

In his appeal, defendant contends that the trial court impinged upon his right of confrontation by allowing Dr. Michael Defatta, St. Tammany Parish Coroner's Office Chief Pathologist and Medical Director for Forensic Operations, to testify from, and beyond the scope of, a report prepared by another pathologist. Defendant argues that the issue at trial was the identity of the assailant and whether the killing was in self-defense. According to defendant, Dr. Defatta was the only witness to testify as to the precise manner in which the decedent was shot and his testimony supported the State's theory of intentional murder while refuting contradictory evidence.

The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him. The Confrontation Clause bars the admission at trial of “testimonial statements” of an absent witness unless the witness is “unavailable to testify, and the defendant ha[s] had a prior opportunity” for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). Further, that prohibition applies in full to forensic evidence. Therefore, a prosecutor cannot introduce an absent laboratory analyst's testimonial out-of-court statements to prove the results of forensic testing. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307, 329, 129 S.Ct. 2527, 2530, 2542, 174 L.Ed.2d 314 (2009); Smith, 602 U.S. at 783, 144 S.Ct. at 1791. The main purpose of confrontation rights is to secure for the defendant the opportunity to cross-examine. Cross-examination is the primary means by which to test the believability and truthfulness of testimony, and it provides an opportunity to impeach or discredit witnesses. State v. Alexander, 2021-1346 (La.App. 1 Cir. 7/13/22), 344 So.3d 705, 719-20, writ denied, 2022-01262 (La. 11/8/23), 373 So.3d 62.

In Melendez-Diaz, a divided Supreme Court held that evidence affidavits reporting the results of forensic analysis that bags of powder were cocaine were testimonial because they were created for the primary purpose of providing evidence at trial. Melendez-Diaz, 557 U.S. at 310-11, 129 S.Ct. at 2531-32. Further, the Court held that where analysts’ affidavits included testimonial statements, the analysts were “witnesses” for purposes of the Sixth Amendment, and the defendants were entitled to be confronted with the analysts themselves at trial. Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. at 2532. One of the five justices joining in the majority opinion concurred because, in his view, the affidavits were testimonial due to their formal nature. Melendez-Diaz, 557 U.S. at 329-30, 129 S.Ct. at 2543 (Thomas, J., concurring). Four justices dissented, stating that the laboratory technicians who produced the certificates of analysis were not witnesses against the defendant because they did not have personal knowledge of some aspect of the defendant's guilt. Melendez-Diaz, 557 U.S. at 343-44, 129 S.Ct. at 2550-51; State v. Mullins, 2014-2260 (La. 1/27/16), 188 So.3d 164, 169.

In Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), five justices found that a formal laboratory certificate identifying a defendant's blood alcohol level in a driving-while-intoxicated case was testimonial and, therefore, inadmissible without the testimony of the analyst who had conducted the testing, because it was created for the purpose of aiding in a police investigation. The decision also prohibited the introduction of those statements through a surrogate analyst who did not participate in their creation. Bullcoming, 564 U.S. at 663, 131 S.Ct. at 2716. See also Smith, 602 U.S. at 802-03, 144 S.Ct. at 1802; Mullins, 188 So.3d at 169-70.

The recent Smith decision by the Supreme Court involved review of convictions and sentences for possessing, and possessing for sale, various illegal drugs.² The case addressed whether an expert witness could, consistent with the Sixth Amendment's Confrontation Clause, restate the factual assertions of an absent lab analyst to support his own opinion testimony identifying the seized drugs. Smith, 602 U.S. at 783, 144 S.Ct. at 1791.

The Supreme Court in Smith recognized that the prohibition in the Confrontation Clause applies only to “testimonial hearsay” and outlined a two-step approach to analyze when the Confrontation Clause is implicated. First, the statements being introduced by the State must be testimonial,³ and second, they must be hearsay evidence, “offered to prove the truth of the matter asserted.” Smith, 602 U.S. at 784-85, 144 S.Ct. at 1792.

Further, the Court recognized it had “variously described” the contours of what constituted “testimonial statements.” However, testimonial statements include testimonial certificates of the results of forensic analysis created “under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial.” Smith, 602 U.S. at 784-85, 144 S.Ct. at 1792, citing, Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. at 2532.

The inquiry of whether out-of-court statements are “testimonial” must focus on their “primary purpose,” in particular, how they relate to future criminal proceedings. Smith, 602 U.S. at 800, 144 S.Ct. at 1801.⁴ A court analyzing a confrontation claim must identify the role that a given out-of-court statement served at trial. Smith, 602 U.S. at 793, 144 S.Ct. at 1797. As with any other report, the substance of the report, and its use at trial, will vary in every case. Therefore, to determine admissibility we must determine whether the statements in the autopsy report were testimonial and whether they were offered for the truth of the matter asserted.

Hearsay

In the instant case, Dr. Anne H. Lee, a forensic pathologist, performed Christopher Carter's autopsy. In her autopsy report, Dr. Lee made a final diagnosis of a gunshot wound to the head. Dr. Lee found that the entrance wound was to the posterior head, an exit wound was to the left posterior head, and bullet fragments perforated the left occipital lobe of Carter's brain.

At trial, Dr. Defatta, was accepted as an expert in forensic pathology.⁵ As chief pathologist, Dr. Defatta's duties included individually performing autopsies and overseeing autopsies performed by other doctors.

Dr. Defatta reviewed and agreed with the report of Dr. Lee. Additionally, Dr. Defatta reviewed the toxicology report, the narrative provided by the investigator, and the autopsy photographs. Dr. Defatta testified that the determination made in the case was that the cause of Carter's death was a gunshot wound to the head and that the manner of death was homicide. He stated that the toxicology report showed that Carter had alcohol and amphetamine in his system, but “in [Dr. Defatta's] experience” the gunshot wound alone would have been enough to kill Carter.

During Dr. Defatta's testimony, the State filed six photographs from the autopsy into evidence. Dr. Defatta testified the first photograph showed injuries to Carter's face that were documented in the autopsy report. According to Dr. Defatta, the photograph showed two lacerations, which he defined as impacts that caused the skin to split. Dr. Defatta indicated that the wounds to Carter's face were consistent with Carter falling and hitting his face on the roadway after being shot. Dr. Defatta stated Carter had a serious injury to his lip, which penetrated through the lip, and could possibly be a graze wound from a gunshot, but “without being there and seeing it [himself], personally, [he could not] ․ make that call.”

In regard to a photograph of the back of Carter's head, Dr. Defatta testified that the circular injury on the right was an entrance type wound and the long, linear, open wound was a portion of an exit wound from the same gunshot as it went through the skull. According to Dr. Defatta, an entrance wound made “a nice round hole on the outside [of the skull],” whereas a beveled wound on the inside of the skull indicated an exit wound. Dr. Defatta testified that the absence of soot, searing, and muzzle imprint around the entrance wound suggested the gunshot came from no closer than 36 to 43 inches away. He stated that the entrance wound had an angulated pathway when contacting the skull and moved in a right-to-left direction. He further stated that the bullet entering Carter's skull fragmented very close to the mid brain, which controls respiration and cardiac functions, and thus, would be fatal. On cross-examination, Dr. Defatta restated he was not at the crime scene and conceded he had no knowledge of what happened before or after Carter was shot.

Dr. Defatta conveyed an expert analyst's statement in support of his opinion, and the statement provided support only if true. Dr. Defatta reviewed and agreed with the report prepared by Dr. Lee, which included a final diagnosis of a gunshot wound to the head. The primary purpose of the autopsy report in this case was to describe the injuries to Carter, i.e., the cause of death. The report was probative on the issue of the killing of a human being. Thus, the diagnosis came into evidence for its truth and would be hearsay.

Testimonial

The next question is whether the statement was testimonial. (“To implicate the Confrontation Clause, a statement must be hearsay (“for the truth”) and it must be testimonial—and those two issues are separate from each other.” Smith, 602 U.S. at 800, 144 S.Ct. 1785.) Although the Court in Smith did not make a ruling on whether the out-of-court statement of the original analyst was testimonial, the Court did offer some guidance. The Court noted that the state court would need to identify the out-of-court statement introduced and that it must determine, given all the relevant circumstances, the principal reason it was made. Smith, 602 U.S. at 800-01, 144 S.Ct. at 1801.

Here, the out-of-court statement introduced by the State was the autopsy report by Dr. Lee describing the manner and cause of Carter's death. Considering all relevant circumstances, the report contained the pathologist's certification prepared in connection with a criminal investigation and prosecution. In other words, the document was created for an evidentiary purpose. Therefore, because the autopsy report was offered for its truth and because it was also testimonial, its admission violated the Confrontation Clause under the analysis in Smith.

Harmless Error

However, even if the admission of the autopsy report into evidence violated the Confrontation Clause, confrontation errors are subject to harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986); State v. Battley, 2022-0940 (La.App. 1 Cir. 7/6/23), 371 So.3d 94, 103; see also LSA-C.Cr.P. art. 921. The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.” Id.; State v. Wille, 559 So.2d 1321, 1332 (La. 1990). The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 817, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000); Battley, 371 So.3d at 103.

In drug offense cases, such as Smith and Melendez-Diaz, the government must use expert opinion to identify the seized substance as a drug which is illegal to possess and/or sell. In the instant case, however, expert opinion was not essential to the government's burden of persuasion. Indeed, the State established defendant's commission of the offenses with fact witnesses at trial. See West, 2023 WL 8923503 at *4 (“[d]efendant's commission of attempted second degree murder and second degree murder was established by Collins's testimony that defendant shot him in the leg, by Collins's testimony that defendant shot Carter, and from [Justin] Taylor's testimony that defendant opened fire on the friends after stating “[F]*** it.”). Cf. Smith, 602 U.S. at 796, 144 S.Ct. at 1799 (“the defendant has no opportunity to challenge the veracity of the out-of-court assertions that are doing much of the work.”).

Further, while the fact that Carter was shot in the back of the head could tend to establish he was not shot in self-defense, the defense did not dispute that Carter was shot in this manner.⁶ Rather, the defense relied on the presence of Carter's DNA on shell casings at the scene, as well as Danny Dale Smith's testimony that Carter fired a gun at the truck, to argue that rather than being shot by defendant, Carter fired nine shots at defendant before being shot in crossfire by his friends.

In opposition to the defense theory, the State offered testimony from Kim Carter that between the two rounds of gunshots she heard on the day of the incident, she exited her home close to the scene of the shooting and heard someone in the blue truck state, “[L]et's go [f]**king finish this s**t off.” The State also relied upon testimony from Louisiana State Police Crime Laboratory Case Unit Manager Phillip Simmers, who the court accepted as an expert in DNA analysis, that while Christopher Carter's DNA was recovered on nine .40 caliber cartridge casings at the scene, based upon the quantity and quality of the DNA on the casings, it was more likely the DNA came from transfer rather than handling of the casings. Simmers further testified that given the proximity of the casings to Carter's blood on the ground at the scene, he would not be surprised if the DNA came from the blood.

We also note Dr. Defatta used photographs from the autopsy, rather than the autopsy report: to conclude the wound to Carter's head was “not a survivable gunshot wound”; to explain a likely cause of the laceration on this victim's face; to determine the approximate distance of the gun; and to show the entrance and exit wounds on the back of Carter's skull. Autopsy photographs are nontestimonial in nature for confrontation purposes. See Williams v. State, 513 S.W.3d 619, 637 (Tex. App.-Fort Worth 2016, pet. ref'd) (“Furthermore, photographs taken during an autopsy are not statements. Thus, autopsy photographs are nontestimonial in nature for confrontation purposes.” (citations omitted); see also State v. Villanueva, 352 Conn. 439, 471, 337 A.3d 734, 755 (2025) (“Contrary to the defendant's contention, the photograph does not state or imply that one bullet caused these wounds. It simply depicts an image of the victim's body with a probe inserted through four wounds. The probe photograph does not include or depict any words, gestures, or some other indicative content that can reasonably be understood as an assertion.”). Thus, only a portion of Dr. Defatta's testimony violated Smith.

Based on the defense theory in this case, Dr. Defatta's testimony had relatively little importance. Additionally, the testimony was cumulative of testimony from eye (and ear) witnesses at the scene, whom the defense fully cross-examined.⁷ Accordingly, the guilty verdict rendered in this trial was surely unattributable to the error, if any, in denying defendant the ability to confront Dr. Lee. See Sullivan; 508 U.S. at 279, 113 S.Ct. at 2081; Broadway, 753 So.2d at 817; Battley, 371 So.3d at 103.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm defendants’ convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

FOOTNOTES

1.   For a more complete recitation of the facts, see West, 2023 WL 8923503 at *1.

2.   State v. Smith, 2022 WL 2734269, *1-2 (Ariz. Ct. App. 2022), vacated and remanded, Smith, 602 U.S. at 803, 144 S.Ct. at 1802.

3.   The Court noted that neither the lower appellate court nor the trial court had addressed whether the absent analyst's statements were testimonial. Smith, 602 U.S. at 801, 144 S.Ct. at 1801.

4.   Smith distinguished between lab records created to comply with laboratory accreditation, facilitate internal review and quality control, or to act as simple reminders to self, which it classified as nontestimonial, and documents with a primary purpose focused on court, which it classified as testimonial. Smith, 602 U.S. at 802, 144 S.Ct. at 1802.

5.   Dr. Defatta testified that he had personally performed over eight thousand autopsies.

6.   In defense counsel's opening statement, he advised the jury that “[t]he forensics -- science -- doesn't lie. The forensics show that the wound came in the back and left the back.”

7.   It is the function of the jury to determine which witnesses are credible. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a jury's determination of guilt. State v. Sorina, 2022-0545 (La.App. 1 Cir. 11/4/22), 354 So.3d 704, 709.

McCLENDON, C.J.