State v. Bernstein

• Decision Date: 06 February 2014
• Docket Number: No. 1 CA–SA 13–0285.,1 CA–SA 13–0285.
• Citation: 317 P.3d 630,234 Ariz. 89
• Parties: STATE of Arizona, Petitioner, v. The Honorable Jerry BERNSTEIN, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner, Doreen Lynn Herman; Ramsey Tohannie; Armen Aslayan; Keith Porter; Mara Hall; Shyla Rotmil; Robert R. Farinas; Kymberly Crowley; Jason Quan; Michael Dinola; Kelly Lewis Day, Real Parties in Interest.
• Court: Arizona Court of Appeals

234 Ariz. 89

317 P.3d 630

STATE of Arizona, Petitioner,

v.The Honorable Jerry BERNSTEIN, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner,Doreen Lynn Herman; Ramsey Tohannie; Armen Aslayan; Keith Porter; Mara Hall; Shyla Rotmil; Robert R. Farinas; Kymberly Crowley; Jason Quan; Michael Dinola; Kelly Lewis Day, Real Parties in Interest.

No. 1 CA–SA 13–0285.

Court of Appeals of Arizona,

Division 1.

Jan. 14, 2014.

As Amended Feb. 6, 2014.

Maricopa County Attorney's Office By Lisa Marie Martin, Phoenix, for Petitioner.

W. Clifford Girard Jr., Attorney at Law By W. Clifford Girard Jr., for Real Parties in Interest.

Scottsdale City Prosecutor's Office By Kenneth M. Flint, Scottsdale, for Amicus Curiae City of Scottsdale.

Law Offices of Michael J. Dew By Michael J. Dew, for Amicus Curiae Phoenix Public Defender Office.

Judge SAMUEL A. THUMMA delivered the opinion of the Court, in which Presiding Judge RANDALL M. HOWE and Judge PATRICIA A. OROZCO joined.

OPINION

THUMMA, Judge.

¶ 1 Real parties in interest are defendants facing aggravated driving under the influence (DUI) charges for violating Arizona Revised Statutes (A.R.S.) section 28–1383 (2014) ¹ in Maricopa County Superior Court. On the dates of the alleged offenses, law enforcement officers drew two vials of blood from each Defendant. The Scottsdale Crime Laboratory (SCL) then tested blood from one of those vials with the following results:

For each Defendant, these blood alcohol content (BAC) test results far exceed the 0.08 threshold for DUI and, except for Defendant Rotmil, exceed the 0.15 threshold for extreme DUI. SeeA.R.S. §§ 28–1381(A)(2), –1382(A)(1). Although the second vial of blood is available for independent testing by Defendants, the record does not contain any independent test results conducted by any of the Defendants.

¶ 2 To test the blood, the SCL used a Clarus 500 gas chromatograph serial number 650N9042003 manufactured by PerkinElmer (the 2003 Instrument), an autosampler, a personal computer and a printer. Stated simply, after calibration, several dozen vials are placed in the carousel of the 2003 Instrument. The vials contain blood samples (each individual has two samples tested at a time, with the second sample called a replicate) along with control samples. The vials are sampled, one by one, and analyzed by the 2003 Instrument, a process that takes several hours. The data are then processed (creating graphs showing the chemical properties of the compounds tested for called chromatograms) and results are calculated and printed. The output is checked for consistency with expected results, control samples and quality controls, and replicates are checked to make sure that results are within plus or minus five percent of each other according to SCL protocol. A second analyst then performs a technical review, which is followed by an administrative review.

¶ 3 The 2003 Instrument was put in service in August 2009 and, since that time, has analyzed approximately 21,000 samples. Defendants allege the 2003 Instrument has several unresolved flaws. These allegations have resulted in substantial motion practice in the Superior Court as well as a prior special action by the State in which this court accepted jurisdiction and granted relief ² and now this special action by the State. As relevant here, Defendants moved to preclude the State from introducing into evidence at trial the SCL BAC test results, claiming the results were inadmissible under Arizona Rule of Evidence 702.³

¶ 4 At Defendants' request, the Superior Court held evidentiary hearings lasting parts of 17 days. After considering testimony, exhibits and related argument, the Superior Court issued a lengthy, detailed Minute Entry dated August 21, 2013 (and clarified on November 11, 2013). The Minute Entry first found that the State had shown by a preponderance of the evidence that the SCL BAC test results complied with Ariz. R. Evid. 702 (a), (b) and (c). The Minute Entry then found the State had failed to show that “the expert has reliably applied the principles and methods to the facts of the case” as required by Ariz. R. Evid. 702(d). More specifically, the Minute Entry states that “the principles and in particular, the methods [of the SCL BAC testing] were not properly applied.” Accordingly, the Minute Entry found “the blood tests and results as to each” Defendant were not admissible.

¶ 5 The State filed this special action seeking relief from the Minute Entry and, at the State's request, this court stayed the cases pending resolution of this special action. The court has considered the parties' briefs and appendices, the amicus briefs and oral argument. Accepting jurisdiction and finding that, under the legal standard discussed below, the SCL BAC test results are admissible under Arizona Rule of Evidence 702, the court grants the State's request for relief, vacates the Minute Entry finding the SCL BAC test results were not admissible under Arizona Rule of Evidence 702, vacates the stay entered pending resolution of this special action and remands these cases for further proceedings.

ANALYSIS

I. Special Action Jurisdiction.

¶ 6 The court has “discretion to accept special action jurisdiction, and will accept jurisdiction if a petitioner does not have an ‘equally plain, speedy, and adequate remedy by appeal,’ or ‘if a case presents an issue of first impression and one of statewide importance that is likely to recur.’ ” Ariz. Dep't of Econ. Sec. v. Superior Court (Angie P.), 232 Ariz. 576, 579, ¶ 4, 307 P.3d 1003, 1006 (App.2013) (citations omitted); see alsoAriz. R.P. Spec. Act. 1(a). “Special action jurisdiction is particularly appropriate when statutes or procedural rules require immediate interpretation,” Escalanti v. Superior Court, 165 Ariz. 385, 386, 799 P.2d 5, 6 (App.1990), and for petitions “present[ing] a purely legal issue of first impression that is of statewide importance,” State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 5, 165 P.3d 238, 240 (App.2007) (citation omitted).

¶ 7 The parties agree that the State has no immediate right to appeal. See generally State v. Bejarano, 219 Ariz. 518, 200 P.3d 1015 (App.2008) (discussing cases). In arguing this court should decline special action jurisdiction, Defendants claim that the Superior Court found the SCL BAC test results were inadmissible based on issues of witness credibility. Specifically, Defendants argue that the Minute Entry is based on issues “of fact and credibility—not mistaken legal interpretation” and that the factual findings relied on by the Superior Court “are limited to the credibility of a few members of one crime lab.”

¶ 8 Defendants cite no authority for the proposition that the Superior Court should or properly could exclude evidence under Arizona Rule of Evidence 702 based on witness credibility, as opposed to evidentiary reliability or scientific validity.⁴ Indeed, the Arizona Supreme Court stated decades ago that “[n]o rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury.” State v. Clemons, 110 Ariz. 555, 556–57, 521 P.2d 987, 988–89 (1974); see also State v. Lehr, 201 Ariz. 509, 517, ¶ 29, 38 P.3d 1172, 1180 (2002) (“ ‘Admissibility is for determination by the judge unassisted by the jury. Credibility and weight are for determination by the jury unassisted by the judge’ ”) (quoting State v. Sanchez, 328 N.C. 247, 400 S.E.2d 421, 424 (1991)); Logerquist v. McVey, 196 Ariz. 470, 499, ¶ 104, 1 P.3d 113, 142 (2000) (McGregor, J., dissenting) (noting inquiry “focuses not on the credibility of a witness, but upon the scientific validity of the proffered evidence”) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)); Ariz. R. Evid. 702 cmt. to 2012 amend, (noting amendments to Arizona Rule of Evidence 702 discussed below are “not intended to supplant traditional jury determinations of credibility”). In this case, however, the issue need not be resolved because the Minute Entry expressly disavowed reliance on any witness credibility assessment. Accordingly, the record factually does not support Defendants' argument that the SCL BAC test results were deemed inadmissible based on witness credibility or that the special action challenging that ruling turns on witness credibility.

¶ 9 Fairly read, the Petition seeks legal interpretation regarding Arizona Rule of Evidence 702, which is a purely legal issue of statewide importance. See State ex rel. Thomas, 216 Ariz. at 262, ¶ 5, 165 P.3d at 240;Escalanti, 165 Ariz. at 386, 799 P.2d at 6. Accordingly, and because the State has no equally plain, speedy or adequate remedy by appeal, in exercising its discretion, the court accepts special action jurisdiction. SeeAriz. R.P. Spec. Act. 1(a).

II. The Merits Of The Petition.

¶ 10 This court “review[s] de novo matters involving interpretation of court rules,” State v. Fitzgerald, 232 Ariz. 208, 210, ¶ 10, 303 P.3d 519, 521 (2013), and a fact-based “decision to permit or exclude expert testimony for an abuse of discretion,” McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 249, ¶ 10, 293 P.3d 520, 525 (App.2013). The State, as the proponent of the evidence, has the burden to show by a preponderance of the evidence that the SCL BAC test results are admissible. See, e.g.,Fed.R.Evid. 702 advisory committee's notes to 2000 amend, (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)).

A. Arizona Rule Of Evidence 702

.

¶ 11 The admissibility of the SCL BAC test results implicates significant recent changes to Arizona Rule of Evidence 702. Effective January 1, 2012, Arizona Rule of Evidence 702 was amended to conform to Federal Rule of Evidence 702 and now provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or...