State v. Foshay

• Citation: 370 P.3d 618
• Decision Date: 23 March 2016
• Docket Number: No. 2 CA–CR 2014–0252.,2 CA–CR 2014–0252.
• Parties: The STATE of Arizona, Appellee, v. Bryan Peter FOSHAY, Appellant.
• Court: Arizona Court of Appeals

370 P.3d 618

The STATE of Arizona, Appellee,

v.Bryan Peter FOSHAY, Appellant.

No. 2 CA–CR 2014–0252.

Court of Appeals of Arizona, Division 2.

March 23, 2016.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Diane Leigh Hunt, Assistant Attorney General, Tucson, Counsel for Appellee.

Steven R. Sonenberg, Pima County Public Defender, By Frank P. Leto, Assistant Public Defender, Tucson, Counsel for Appellant.

Presiding Judge HOWARD authored the opinion of the Court, in which Judge ESPINOSA and Judge STARING concurred.

OPINION

HOWARD

, Presiding Judge:

¶ 1 After a jury trial, Bryan Foshay was convicted of first-degree murder. On appeal, he argues the trial court erred first by allowing a toolmark expert, Rocky Edwards, to testify; second, by allowing Edwards's report to be admitted in its entirety; third, by allowing Edwards to testify regarding another expert's analysis; and finally, by precluding evidence that the victim had previously sold drugs and had methamphetamine in his system when he was killed. Because the trial court did not err, we affirm.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to sustaining Foshay's conviction. State v. Ortiz, 238 Ariz. 329, ¶ 2, 360 P.3d 125, 129 (App.2015)

. The victim, B.B., was killed in his apartment by a gunshot wound to the head. During the ensuing investigation, police found that Foshay had exchanged electronic messages with B.B. the night of the murder. These messages suggested that Foshay and B.B. were involved in an illegal enterprise at one point and that B.B. was involved with law enforcement in some capacity, at the time of the text messages. In one message, Foshay asked B.B. to open the door to his apartment on the night of the murder. Based on these messages, police obtained a warrant to search Foshay's home. They found a .40 caliber weapon and some "Winchester PDX" ammunition as a result of that search.

¶ 3 At trial, Edwards opined that the bullet which killed B.B. was shot from Foshay's gun. Foshay mounted a third-party-culpability defense which centered on testimony that B.B. had been pressured into providing information and testimony for law enforcement. Foshay claimed that one of a number of other individuals who had been engaged in the drug trade with B.B. had killed him.

¶ 4 The jury rejected the defense's theory of the case and, as noted above, found Foshay guilty of first-degree murder. The trial court sentenced him to a life term with the possibility of release after twenty-five years. Foshay appealed from the judgment and sentence. This court has jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1)

and 13–4033(A)(1).

Daubert¹ Analysis

¶ 5 Foshay first argues, on several related grounds, that the trial court erred by admitting Edwards's testimony which was based in part on the use of three-dimensional ("3–D") imaging software and "confocal microscopic analysis."² "We review a trial court's ruling to admit expert testimony for an abuse of discretion." State v. Favela, 234 Ariz. 433, ¶ 4, 323 P.3d 716, 717 (App.2014)

. In reviewing a trial court's ruling after a hearing on a motion to preclude expert testimony, we consider only that evidence presented at the hearing, viewing it in the light most favorable to upholding the order. Cf. State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App.2011) (reviewing motion to suppress); see also State v. Huerstel, 206 Ariz. 93, ¶ 62, 75 P.3d 698, 712 (2003) (reviewing voluntariness of statement).

¶ 6 In order for expert witness testimony to be admissible, the party proposing the testimony must show, inter alia, that first, "the witness is qualified and [second, that] the expert's ‘scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence.’ " State v. Romero, 239 Ariz. 6, ¶ 12, 365 P.3d 358, 361 (2016)

, quoting Ariz. R. Evid. 702. The proponent must also demonstrate that "the testimony is based on sufficient facts or data; ... the testimony is the product of reliable principles and methods; ... and the expert has reliably applied the principles and methods to the facts of the case." Ariz. R. Evid. 702. "Under Rule 702, a witness may be qualified based on ‘knowledge, skill, experience, training, or education.’ " Romero, 239 Ariz. 6, ¶ 17, 365 P.3d at 362, quoting Ariz. R. Evid. 702. "For a witness to be qualified as an expert, he or she need only possess ‘skill and knowledge superior to that of [people] in general.’ " Id., quoting State v. Girdler, 138 Ariz. 482, 490, 675 P.2d 1301, 1309 (1983) (alteration in Romero ).

¶ 7 The following facts were adduced at the Daubert hearing. The Tucson Police Department ("TPD") performed an initial analysis of the weapon and ammunition found in Foshay's home. Using a standard comparison microscope and the six test-fired bullets, the TPD analysts could not determine whether the autopsy bullet recovered from B.B.'s body matched the weapon found in Foshay's home.

¶ 8 Foshay's gun, the autopsy bullet, and the TPD "test fires" were then sent to Rocky Edwards, a toolmark analysis expert at the Santa Ana Police Department. Edwards conducted additional test fires and obtained additional bullet samples. He also conducted an analysis aided by a "confocal" microscope which utilizes 3–D imaging. Edwards concluded that Foshay's gun had fired the autopsy bullet. Based on his analysis using both scopes, Edwards found "areas of agreement" between the autopsy bullet and the test fires he compared. But he emphasized that

an identification ... has to be done with a comparison microscope. That's the only standard that's accepted in the United States, and that's the standard [he] used in this case and in every case that [he had] ever done in 3–D. So [the confocal microscope was] only used as a supplement, not used as the main scope.

The report and presentation that Edwards prepared in this case "include[d] photographs both [from a] comparison microscope and [a] confocal" microscope.

¶ 9 Foshay argues the trial court abused its discretion when it found that Edwards was qualified to employ the 3–D imaging software. As Foshay has conceded both at trial and on appeal, Edwards is a qualified toolmark analyst. The court found specifically that "using this 3–D confocal microscopy is just a new tool to utilize the same principles." And Edwards's testimony showed a working knowledge of how this technology functioned, demonstrating he was qualified by knowledge and experience. Ariz. R. Evid. 702

; Romero, 239 Ariz. 6, ¶ 17, 365 P.3d at 362. Thus, the court did not err when it found that Edwards was qualified to testify as to his analyses aided by the new technology. See Romero, 239 Ariz. 6, ¶ 17, 365 P.3d at 362.

¶ 10 Foshay further argues the trial court erred in admitting Edwards's testimony because Edwards did not have personal knowledge about how the 3–D mapping software functioned and, thus, the state failed to present sufficient evidence to allow the court to find the new methodology reliable. Rule 702

requires that expert testimony be the product of reliable principles and methods and that the expert has reliably applied the principles. Ariz. R. Evid. 702(c), (d) ; see also State v. Romero, 236 Ariz. 451, ¶ 11, 341 P.3d 493, 497 (App.2014), vacated on other grounds, 239 Ariz. 6, ¶ 31, 365 P.3d at 364. Arizona courts recognize five non-exclusive factors for determining reliability:

(1) whether the expert's theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique or theory is generally accepted within the relevant scientific community; (4) the known or potential rate of error of the technique or theory when applied; and (5) the existence and maintenance of standards controlling application of the technique.

State ex rel. Montgomery v. Miller, 234 Ariz. 289, ¶ 24, 321 P.3d 454, 464 (App.2014)

.

¶ 11 As noted above, Edwards testified he made the match with the traditional comparison microscope and that the confocal microscope and 3–D imaging only allowed him to see a clearer image. Accordingly, specific details on how the confocal microscope and 3–D imaging software functioned were not relevant to whether Edwards had applied reliable principles and methods.

¶ 12 Additionally, although Edwards conceded he was unaware of how the software functioned and had only used this technology four times, he was able to testify in some detail regarding how the technology worked, its history, and a study about the effectiveness of toolmark analyses conducted with this technology. In this study, researchers attempted to validate the use of 3–D systems by having 623 participants in thirty-five countries analyze 600 rounds fired out of ten consecutively manufactured weapons. Only two of the examiners could not make identifications, and those examiners were relatively untrained. All other examiners were able to make valid identifications.

¶ 13 Thus, the trial court reasonably could have found that the 3–D imaging and confocal microscope methodology was testable, was subjected to peer review, was generally accepted in the field, and was studied sufficiently to establish known or potential rates of error. Montgomery, 234 Ariz. 289, ¶ 24, 321 P.3d at 464

. Accordingly, the 3–D imaging and confocal microscope methodology was capable of passing Rule 702's reliability test.³

¶ 14 In sum, Edwards testified the 3–D imaging and confocal microscope merely enabled him to better see the marks which were the basis of his analysis. And no evidence indicated that the software and microscope somehow manipulated the image to allow a match between bullets where none existed. Any issues concerning the use of the 3–D imaging and confocal microscope were proper subjects for cross-examination, but did not prevent admission of the evidence. See Romero, 239 Ariz. 6, ¶ 27, 365 P.3d at 364

(" ‘Cross-examination, presentation of contrary...