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State v. Lackey9/30/2005
60-460(d)(3). Dr. Eckert's death rendered him unavailable at trial. The autopsy was performed on December 20, 1982, and the description portion of the autopsy report Dr. Eckert prepared was dated December 21, 1982, the day after the autopsy was performed. The autopsy report was prepared as part of his duties as a pathologist, prior to any pending litigation. No evidence was presented that Dr. Eckert had any reason to falsify or distort his routine medical observations of the body. Although the autopsy report would qualify under this subsection, this issue is subject to the Confrontation Clause analysis as further discussed hereafter.
Additionally, the State argues that the autopsy report qualified as an official document exception to hearsay under K.S.A. 2004 Supp. 60-460(o), which provides:
"(o) Content of official record. Subject to K.S.A. 60-461 and amendments thereto, (1) if meeting the requirements of authentication under K.S.A. 60-465 and amendments thereto, to prove the content of the record, a writing purporting to be a copy of an official record or of an entry therein or (2) to prove the absence of a record in a specified office, a writing made by the official custodian of the official records of the office, reciting diligent search and failure to find such record."
K.S.A. 2004 Supp. 60-465 provides in relevant part:
"A writing purporting to be a copy of an official record or of an entry therein, meets the requirements of authentication if the judge finds that the writing purports to be published by authority of the nation, state or subdivision thereof, in which the record is kept or evidence has been introduced sufficient to warrant a finding that the writing is a correct copy of the record or entry."
The State relies upon State v. Bell, 239 Kan. 229, 232-33, 718 P.2d 628 (1986), in which this court found that a coroner's report is required to be filed with the clerk of the district court in the county where the death occurs under K.S.A. 19-1032 (Ensley 1981) (now K.S.A. 2004 Supp. 22a-232) and becomes an official public document admissible under the exception in K.S.A. 60-460(o). See also State v. Hobbs, 276 Kan. 44, 52-53, 71 P.3d 1140 (2003) (error in excluding coroner's report as evidence during the testimony of deputy coroner that had performed the autopsy but had not authored the report of death where no question regarding trustworthiness was raised; report spoke for itself, was relevant and was admissible under 60-460 ). In contrast, the defendant cites State v. Johnson, 220 Kan. 720, 725, 556 P.2d 168 (1976) (directing trial court to excise hearsay information contained within five-page coroner's report).
The assumption at trial and on appeal was that the autopsy report was not required to be filed with the district court. However, both parties fail to recognize a critical statute in effect at the time of the murder which required the autopsy report to be filed with the clerk of the district court as well. K.S.A. 19-1033 (Ensley 1981) provides that if the coroner requests an autopsy: "A full record and report of the facts developed by the autopsy and findings of a person making such autopsy shall be promptly made and filed with the coroner and with the clerk of the district court of the county in which the decedent died."
Since a copy of the autopsy report was required to be filed with the clerk of the district court as well as the coroner's report, it follows that the autopsy report would also qualify as a copy of an official record under K.S.A. 2004 Supp. 60-460(o). Dr. Clark testified that a copy of the autopsy report was attached to the coroner's report that he filed with the clerk of the district court. T
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