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James Yates, Warden Pvsp v. Marc Clayton Merolillo

December 12, 2011


D.C. No. 5:05-cv-00197-RGK-FMO Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

The opinion of the court was delivered by: Navarro, District Judge:



Argued and Submitted September 1, 2011-Pasadena, California

Before: Mary M. Schroeder and Ronald M. Gould, Circuit Judges, and Gloria M. Navarro, District Judge.*fn1

Opinion by Judge Navarro


Marc Clayton Merolillo appeals the district court's denial of his federal habeas petition. Merolillo was convicted in Cal- ifornia state court of first degree murder. At trial, the key issue of whether Merolillo contributed to the victim's death from a ruptured dissecting aortic aneurysm was disputed by three expert witnesses.

Merolillo challenges the admission at trial of the non-testifying autopsy pathologist's opinion, claiming violations of his Sixth Amendment right to confront witnesses against him. Because we find that Merolillo suffered actual prejudice from the erroneous admission of the opinion testimony, we reverse the district court's denial of Merolillo's habeas petition.


On August 29, 1997, Merolillo commandeered a car occupied by an elderly couple, the Chromys, as they waited in a drug store parking lot for a medical prescription to be filled. Merolillo struggled with Mr. Chromy and ultimately pushed him out of the car. Mrs. Chromy, who was sitting in the back seat, tried to exit but became entangled in the seat belt. She was dragged along the ground while Merolillo drove, her head and body striking the pavement and curb. About a quarter of a mile later, Mrs. Chromy fell free of the car. After a high-speed chase, the police apprehended Merolillo. Mrs. Chromy died about one month later at age 78.

The autopsy pathologist, Dr. Garber, testified for the prosecution at a preliminary hearing in March 1998. Two months later, in May 1998, Dr. Herrmann was called to testify for the defense. Merolillo filed a motion under California Penal Code section 995. At the August 1999 hearing on that motion, defense counsel indicated the inconsistencies in Dr. Garber's testimony for the prosecution, but the motion was denied.*fn2

Dr. Garber's testimony at the preliminary hearing was inconsistent and conclusory. He deflected some questions for his lack of expertise, suggesting that they would be better directed to "a neurologist or perhaps a neurosurgeon or an ER physician, because that's their areas of expertise, and this is not mine." When asked to expand on the mechanism by which brain injury is fatal, Dr. Garber offered the conclusory assertion that "it just is." The preliminary hearing judge said he was "disappointed" in the quality of Dr. Garber's testimony and noted that it "could not withstand the light of day beyond a reasonable doubt."

At trial in January 2001, Dr. Garber was not called to testify. Rather, the prosecution called two other pathologists to testify - Dr. Cohen, the head pathologist from the coroner's office, and Dr. Bloor, a professor of medicine and pathology from the University of California, San Diego. The defense again called Dr. Herrmann.

Dr. Garber was not called to testify*fn3 nor was his autopsy report admitted into evidence. Nevertheless, over defense counsel's repeated objections, Dr. Garber's opinion was elicited by the prosecution during cross-examination of the defense expert, Dr. Herrmann. Dr. Herrmann was asked to explain his disagreement with Dr. Garber's opinion that head trauma contributed to Mrs. Chromy's death. In response, Dr. Herrmann testified that he believed Mrs. Chromy's pre-existing medical conditions likely contributed to the cause of death, but that neither head trauma nor torso trauma contributed to her death. Earlier in the trial, the two experts called by the prosecution had not adopted Dr. Garber's opinion. Dr. Cohen had testified that torso trauma may have contributed to the cause of death, but gave conflicting testimony as to whether head trauma may have contributed to her death or to the cause of death. Dr. Bloor testified that torso trauma con- tributed to the cause of death, but that head trauma did not. Therefore, Dr. Garber's inadmissible opinion was the only expert opinion provided to the jury that head trauma definitely contributed to Mrs. Chromy's death.

All the pathologists agreed that the immediate cause of Mrs. Chromy's death was a dissecting aortic aneurysm, also called an acute aortic dissection. But they disagreed on whether the aneurysm was caused by the trauma inflicted during the carjacking or whether it developed later, caused by other factors. The experts testified that an aneurysm can be caused by long-standing hypertension, atherosclerosis, various syndromes, and trauma. Mrs. Chromy had heart disease, hypertension and severe atherosclerosis, as well as a prior history of strokes.

Key issues in the medical testimony were: (1) whether Mrs. Chromy's brain trauma contributed to the aortic dissection;

(2) whether Mrs. Chromy's torso trauma contributed to the aortic dissection; and (3) the significance of the autopsy evidence of bleeding and/or healing - i.e., whether the aortic tear began thirty days prior to her death as a result of the car-jacking trauma, or instead developed later as a natural result of Mrs. Chromy's pre-existing conditions.

Therefore, both the existence of a Confrontation Clause violation and the degree of prejudice caused by the admission of Dr. Garber's opinion must be determined. We begin with a discussion of the experts' testimony, counsel's closing arguments, the jury deliberations, and the appellate history of the case.

A. Expert's Testimony


The prosecution's first expert, Dr. Cohen, testified first as to Mrs. Chromy's head and brain injuries. Then, he clarified that the immediate cause of Mrs. Chromy's death was a ruptured aneurysm near her heart in the aorta. His exact testimony was as follows:

[Prosecutor]: And let's step back to the trauma from the brain.

[Cohen]: Okay.

[Prosecutor]: It is not what ultimately killed her?

[Cohen]: This trauma (indicating)?

[Prosecutor]: Yes.

[Cohen]: It may have contributed. I can't be certain. It may certainly have. Are you talking about the brain injury itself?

[Prosecutor]: Yes.

[Cohen]: It's possible that it contributed to some extent. Whether it was 2 percent or 5 percent or 40 percent. It is possible. I don't know the answer to it.

Aided by a photo of Mrs. Chromy's preserved heart, Dr. Cohen described the physical mechanism of the aortic aneurysm. He stated at one point that he agreed with Dr. Garber's conclusion that the immediate cause of Mrs. Chromy's death was a dissecting aortic aneurysm, a tear in the aorta. When asked how such a tear happens, he listed more than one possible cause. However, he prefaced this by explaining that the most common cause of an aortic tear overall is long-standing hypertension. Another cause he described as fairly common is plaque and atherosclerosis on the inner surface of the aorta, which causes the wall to weaken. This weakness predisposes a person to having a rupture or a break in the blood vessel. Finally, he listed other less common causes, such as trauma and certain syndromes. At this point, the prosecutor asked him to confirm that Mrs. Chromy had a history of hypertension and atherosclerosis, which he did.

Next, the prosecutor attempted to elicit from Dr. Cohen an opinion as to whether the trauma Mrs. Chromy suffered during the carjacking contributed to the aortic tear. His testimony was as follows:

[Prosecutor]: Now, in this particular case, what about the trauma that she suffered, the - the beating she took bouncing on the road? What did that contribute to this tear?

[Cohen]: Well, again, that's debatable. The trauma that she sustained 30 days prior clearly did not help her. And if she had a weakness like this already from her atherosclerosis - which she did have severe atherosclerosis and she did have hypertension. So she already had enough to explain a weakness in this wall. And the trauma certainly did not help her. It could only have hurt her.

[Prosecutor]: Okay. So is your opinion, then, this trauma hurt her or aggravated -

[Cohen]: I can't answer that. I wish I could. I can't answer for sure if this trauma actually contributed. It absolutely did not help her. It could only have hurt her. And the fact that it's in relatively close proximity to her injury, I'm very suspicious of it. And I'm very concerned that it did contribute. Whether it was a percent or 5 percent or 40 or 80 percent, I don't know. I don't know the answer to that.

In the preserved heart, Dr. Cohen also observed signs of bleeding into the inner wall lining of the aorta, which he opined had existed for days, weeks or even two months before death. However, he also acknowledged that the bleeding could have started minutes before death. In his opinion, this bleeding was what ultimately dissected the aortic tissue, causing Mrs. Chromy's death.

The prosecution concluded Dr. Cohen's testimony with a description of how high blood pressure could exacerbate a person's propensity for these types of tears, and how blunt-force injury to the torso causes the tissues to react. When asked by the prosecution whether significant forces to the torso, transmitted to the tissues, would cause or start a tear, Dr. Cohen opined that "[t]hey certainly would not help it, and they could hurt it."

The defense opened cross-examination with a recitation of the admissible findings within Dr. Garber's autopsy report, particularly the fact that Mrs. Chromy's heart exhibited hypertrophy consistent with long-standing hypertension and severe atherosclerosis of the aorta. Upon questioning, Dr. Cohen admitted that 80 or 90 percent of people who suffer a dissecting aortic aneurysm tend to be hypertensive. He also testified that Dr. Garber's autopsy report identified an enlarged heart, a condition that results from the hypertrophy that comes with long-standing hypertension.

Defense counsel then cross-examined Dr. Cohen regarding Mrs. Chromy's brain injuries. When asked about any correlation or connection between these types of brain injuries and a dissecting aortic aneurysm, he admitted that he wasn't aware of any other cases with such a correlation. When asked whether he had not just provided an opinion that such a connection did exist in this case, Dr. Cohen then clarified his testimony and retracted his opinion:

[Defense counsel]: Well, you have testified, have you not, that there is a connection between Miss Chromy's brain damage, the subdural, subarachnoid ...

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