United States v. Tavis D. Doyle , 693 F.3d 769 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3077
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
T AVIS D. D OYLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-cr-30057-DRH-1—David R. Herndon, Chief Judge.
A RGUED JUNE 5, 2012—D ECIDED S EPTEMBER 11, 2012
Before, B AUER, R OVNER, and H AMILTON, Circuit Judges.
B AUER, Circuit Judge. A jury found Tavis D. Doyle
guilty of distributing a controlled substance that resulted
in death. Doyle appeals his conviction, challenging
the admission of a medical examiner’s findings form
without the opportunity to cross-examine the author of
that form. We affirm.
2 No. 11-3077
I. BACKGROUND
Tavis D. Doyle was convicted and sentenced to life
in prison for distributing heroin that resulted in the
death of Jonathan Ward. At trial, the Government
needed to prove, and was successful in proving, that
Doyle provided the heroin that killed Ward and that
the heroin he provided was the sole cause of death.
To prove that it was heroin—and heroin alone—that
caused Ward’s death, the Government put two expert
witnesses on the stand. The first was Dr. Christopher Long,
a toxicologist, and the second was Dr. Phillip Burch,
the St. Louis Deputy Chief Medical Examiner.
During direct examination of Dr. Burch, the Govern-
ment began laying a foundation to admit into evidence
the Medical Examiner’s Post Mortem Report. At that
point, Doyle’s counsel, with the intention to “help
things along,” stated that he had no objection to any of
the Government’s medical reports coming in as evi-
dence. So with no challenge by Doyle, the district
court admitted into evidence all of the Government’s
medical exhibits. Included in those exhibits was Exhibit
95f, the Medical Examiner’s findings form. The
findings form, which is the subject of this appeal, was
created by Dr. Timothy Dutra and contains notes—pre-
sumably Dr. Dutra’s, although we do not know for
certain—concerning Ward’s cause of death. What is
particularly troublesome for Doyle is that the findings
form has a scratch-out on it. The form lists “Acute
heroin and cocaine intoxication” (emphasis added) as the
cause of death, but the words “and cocaine intoxica-
tion” are crossed out.
No. 11-3077 3
On appeal, Doyle argues that the admission of the
findings form without the testimony of its author,
Dr. Dutra, violated his Sixth Amendment right to con-
frontation. Doyle also lodges a few other challenges,
claiming that the Government’s excessive objections
during his lawyer’s cross-examinations violated his
Sixth Amendment right to confrontation, and that the
Government’s “misconduct” during the trial deprived
him of his Fifth Amendment right to a fair trial.
II. DISCUSSION
The Government argues that Doyle has waived, or at
least forfeited, his Sixth Amendment claim because he
did not object to the admission of the findings form.
The difference between waiver and forfeiture is that
waiver precludes review, whereas forfeiture permits us
to correct an error under a plain error standard. United
States v. Olano, 507 U.S. 725, 732-34 (1993). Forfeiture
occurs by accident, neglect, or inadvertent failure to
timely assert a right. Id.; United States v. Cooper, 243
F.3d 411, 415-16 (7th Cir. 2001). Waiver occurs when a
defendant or his attorney manifests an intention,
or expressly declines, to assert a right. Cooper, 243 F.3d
at 415-16.
Doyle’s counsel voluntarily and affirmatively stated
that he had no objection to any Government exhibits
being entered into evidence. Though that suggests
waiver, the record indicates that Doyle’s failure to
object may have been actually an oversight. Doyle
believed that all of the Government’s exhibits being
4 No. 11-3077
entered into evidence, including the findings form, were
created by Dr. Burch, who was available to provide
live testimony. It was not until Doyle’s counsel had the
opportunity to cross-examine Dr. Burch that Doyle
learned that Dr. Burch was not the author of the
findings form. By then it was too late; the Government’s
evidence was in. So we will assume that there was only
a forfeiture and review for plain error. See United States
v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).
Under the plain error standard, a party asserting
the error must establish (1) that there was in fact an
error; (2) that the error was plain; and (3) that the
error “affects substantial rights.” Unites States v. Van
Allen, 524 F.3d 814, 819 (7th Cir. 2008) (citations omitted).
If these three requirements are met, we may exercise
our discretion to correct the error but only if it
“seriously affect[s] the fairness, integrity or public re-
putation of judicial proceedings.” Id. (citations omitted).
The plain error asserted in this case is a Sixth Amend-
ment Confrontation Clause violation that arises from
the district court entering into evidence the Medical
Examiner’s findings form without cross-examination
of the author of that form.
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” U.S.
C ONST. amend. VI. In Crawford v. Washington, 541 U.S. 36,
53-54 (2004), the Supreme Court held that the Confronta-
tion Clause enables a defendant to bar the admission
of testimonial statements of a witness who did not
appear at trial unless the witness was unavailable to
No. 11-3077 5
testify and the defendant had a prior opportunity to
cross-examine him. The Court further explained that
“testimony” is a “ ‘solemn declaration or affirmation
made for the purpose of establishing or proving some
fact.’” Id. at 51 (quoting 2 N. Webster, An American
Dictionary of the English Language (1828)).
Assuming that the Medical Examiner’s findings form
is testimonial, and that its admission was an error, and
a plain one at that, we need only decide whether
Doyle’s substantial rights were affected. We conclude
that they were not.
Doyle argues that his inability to question Dr. Dutra
about the notes and cross-outs on the findings form
denied him a substantial right—i.e., the right to confront
a witness bearing testimony against him. The issue
we face is whether the admission of the findings form
without cross-examination of its author affected
Doyle’s substantial rights. And to convince us, Doyle
must demonstrate that, but for the Confrontation-
Clause error, the outcome of the trial probably would
have been different. United States v. Prude, 489 F.3d 873,
880 (7th Cir. 2007). Doyle provides no evidence, much
less an argument, to make that showing; instead he
relies simply on a Crawford violation to prove that his
substantial rights were affected. But the mere presence
of a Crawford violation does not mean that the outcome
of the trial probably would have been different; indeed,
we find that, in this case, the error had no effect on
the outcome.
The evidence presented at trial overwhelmingly estab-
lished that Ward died from a heroin overdose and that
6 No. 11-3077
cocaine did not contribute to his death. In addition to
the findings form, a toxicologist’s report was entered
into evidence and two live witnesses testified before
the jury. At trial, the jury heard evidence that Dr. Burch
attended the autopsy, collected the reports, reviewed
the investigation narratives, and made a final determina-
tion on the cause of death. Moreover, he testified on
these topics and gave his expert opinion that a heroin
overdose caused Ward’s death. The jury also heard live
testimony from Dr. Long, who performed a forensic in-
vestigation of what caused Ward’s death. Dr. Long
testified that Ward had taken a lethal dose of heroin
and that cocaine did not contribute to his death; his toxi-
cology report was also admitted into evidence.
In light of the trial record as a whole, Doyle has not
satisfied his burden to establish that the outcome of
the trial would probably have been different. Because
he cannot make that showing, we end our plain error
analysis there. Lastly, after our extensive review of the
record, we conclude that the Government’s objections
during Doyle’s cross-examinations did not violate
Doyle’s Sixth Amendment right to confrontation. We
also reject Doyle’s claim that he was deprived of a fair
trial as a result of the Government’s “misconduct.”
III. CONCLUSION
For the foregoing reasons, we A FFIRM the conviction.
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