State v. Pesqueira

• Decision Date: 28 August 2014
• Docket Number: No. 2 CA–CR 2013–0134.,2 CA–CR 2013–0134.
• Citation: 333 P.3d 797,694 Ariz. Adv. Rep. 4,235 Ariz. 470
• Parties: The STATE of Arizona, Appellee, v. Manuel Jesus PESQUEIRA, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 470

333 P.3d 797

694 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Manuel Jesus PESQUEIRA, Appellant.

No. 2 CA–CR 2013–0134.

Court of Appeals of Arizona, Division 2.

Aug. 28, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Robert A. Walsh, Assistant Attorney General, Phoenix, Counsel for Appellee.

DeConcini McDonald Yetwin & Lacy, P.C. By Ronald Zack, Tucson, Counsel for Appellant.

Judge HOWARD authored the opinion of the Court, in which Presiding Judge KELLY and Judge VÁSQUEZ concurred.

OPINION

HOWARD, Judge.

¶ 1 Following a jury trial, appellant Manuel Pesqueira was convicted of armed robbery, aggravated robbery, two counts of kidnapping, two counts of aggravated assault with a deadly weapon, and first-degree murder. On appeal, he argues the trial court erred by allowing a medical expert witness to rely on an autopsy report created by a non-testifying expert, there was insufficient evidence to support the jury verdict for first-degree murder, the court improperly enhanced some of his sentences, and the court erred in imposing a Criminal Restitution Order (CRO). For the following reasons, we affirm the convictions and sentences, but vacate the CRO.

Factual and Procedural Background

¶ 2 L.C. and his roommate, R.G., were asleep in a bedroom when they awoke to a “strange noise.” Shortly thereafter, Pesqueira entered the bedroom, pointed a gun at the men, and said he wanted their “money, belongings, [and] drugs.” Pesqueira took money from R.G.'s wallet and a jar of change before leaving the bedroom. He then returned with a machete and again demanded money and drugs. He took L.C.'s and R.G.'s cellular telephones and left the room. Another man, Stephen Williams, then entered the bedroom with a gun, did not say anything, and shot L.C. in the head. Pesqueira and Williams then left the apartment.

¶ 3 L.C. was taken to the University Medical Center (UMC) where doctors performed surgery. But L.C. remained unconscious for the week he stayed at UMC and his estimated chances of recovery were “[v]ery slim,” approximately eight percent. L.C.'s family chose to move him to Mexico and, during the ambulance ride from UMC to Mexico, L.C. died.

¶ 4 Pesqueira was charged with and convicted of various offenses as described above. The trial court sentenced him to a combination of consecutive and concurrent prison terms on counts one through six, totaling thirty years. It also sentenced him to life in prison without the possibility of release for twenty-five years for the first-degree murder charge which was to run concurrently with the sentences for the other six charges. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 13–4033(A)(1).

Dr. Hess's Testimony

¶ 5 Pesqueira first argues the trial court erred in allowing the state's medical expert, Dr. Gregory Hess, to base his opinion as to the cause of L.C.'s death on the autopsy report generated in Mexico. He contends both that the testimony was inadmissible under Rule 703, Ariz. R. Evid., because the Mexican autopsy report was unreliable, and that it violated his Confrontation Clause rights.

Rule 703

¶ 6 Although Pesqueira objected below to the doctor's reliance on the autopsy report, he did not raise its noncompliance with Rule 703. He has therefore forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607 (2005); State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App.2008) (“[A]n objection on one ground does not preserve the issue on another ground.”). Fundamental error is “ ‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.’ ” Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). “To prevail on a claim of fundamental error, the [defendant] must first show error and then show that the error is fundamental and prejudicial.” State v. Edmisten, 220 Ariz. 517, ¶ 11, 207 P.3d 770, 775 (App.2009). Pesqueira has failed to argue the alleged error was fundamental, and therefore has waived review of this issue. State v. Moreno–Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App.2008).

¶ 7 Moreover, although we will not overlook fundamental error when we see it, State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App.2007), here we find no error, fundamental or otherwise. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607 (to show fundamental error, defendant must first demonstrate error). Pesqueira contends the autopsy report was insufficiently reliable to provide a basis for Hess's testimony. Rule 703 provides that an expert may rely on facts or data that are otherwise inadmissible “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Pesqueira cites Pipher v. Loo for the proposition that “ ‘[t]he test for admissibility of an expert's opinion based on facts not in evidence is whether the source relied upon by the expert is reliable.’ ” 221 Ariz. 399, ¶ 8, 212 P.3d 91, 94 (App.2009), quoting Lynn v. Helitec Corp., 144 Ariz. 564, 568, 698 P.2d 1283, 1287 (App.1984) (alteration in Pipher ). As the court in Pipher pointed out, Rule 703 is a “foundational hurdle” to ensure the “data, facts, or methods upon which the expert's opinion is based exhibit sufficient indicia of reliability.” Id.

¶ 8 The expert in Pipher based his opinion on his own laboratory research, clinical experience, and interviews he conducted, all of which constituted the “legitimate branch of ... epidemiological research.” Id. ¶ 10. No evidence was presented that the sources were “unreliable or untrustworthy” and the court therefore did not err by admitting the testimony. Id.

¶ 9 Conversely, the accident reconstruction expert in Lynn based his opinion solely on the “statements of an eyewitness concerning the event giving rise to the lawsuit,” which had no “external indicia of reliability, such as a routine and customary business record or preparation of a report by a disinterested, expert third party.” 144 Ariz. at 566, 568, 698 P.2d at 1285, 1287. The testimony was therefore inadmissible under Rule 703. Id. at 567–69, 698 P.2d at 1286–88.

¶ 10 Pesqueira contends “there was no evidence presented whatsoever that the autopsy report was reliable,” but similarly no evidence established that it was unreliable, or that Hess's reliance on it was unreasonable. Hess testified that the autopsy report was “incomplete” by Pima County standards because the examiner only fully examined L.C.'s head and chest. But Hess also stated that type of “limited” autopsy was similar to those done in other parts of the United States and that those examinations were in no way “inaccurate.” He additionally testified that the findings in the report were consistent with the UMC medical records, and it served its purpose of “determin[ing] the cause and manner of death.” The autopsy report thus has “sufficient indicia of reliability” to have properly formed the basis for Hess's opinion under Rule 703. See Pipher, 221 Ariz. 399, ¶ 8, 212 P.3d at 94. Furthermore, by allowing Hess's testimony, the court implicitly found the autopsy report was reliable. Seeid. ¶ 10.

¶ 11 Additionally, in considering a challenge to evidence under Rule 703, our supreme court reviews whether the expert's reliance on the inadmissible data was reasonable, not whether the data itself was reliable. See State v. Rogovich, 188 Ariz. 38, 41–42, 932 P.2d 794, 797–98 (1997). Thus, although the reliability of the data may be an underlying consideration, we question whether Pipher and Lynn set forth the proper test. The focus is more properly placed on the expert's reasonable reliance, which we analyze here. See id.

¶ 12 Experts commonly rely on other expert's opinions. See State v. Lundstrom, 161 Ariz. 141, 146, 776 P.2d 1067, 1072 (1989) (“It is hard to say ... that it is not reasonable [for experts] to rely on ... shared opinions”), quoting Morris K. Udall & Joseph Livermore, Arizona Practice: Law of Evidence § 23, at 12 (2d ed.Supp.1989) (alteration in Lundstrom ). Rule 703 therefore “allows a testifying expert to reach and express an opinion in the courtroom in the same manner he or she would in the laboratory or other work place.” Rogovich, 188 Ariz. at 42, 932 P.2d at 798. Nothing in the record before us suggests that Hess's reliance on the autopsy report was unreasonable. See id. at 41–42, 932 P.2d at 797–98. Accordingly, Pesqueira has failed to show that Hess's reliance on the autopsy report violated Rule 703. See id.

¶ 13 Furthermore, although Pesqueira contends that the person who performed the autopsy may not have been qualified to do so under Arizona statutory requirements, Rule 703 “does not require that the facts or data used as a basis for an opinion be generated by a qualified, testifying expert.” Id. at 41, 932 P.2d at 797. Pesqueira has not cited any legal authority for the proposition that an expert may only base his opinion on documents entirely consistent with the laws and regulations of the jurisdiction in which the crime was committed. Under Rule 703, the primary issue is not the qualifications of the non-testifying expert, but whether the testifying expert reasonably relied on the report and opinions. See id. at 41–42, 932 P.2d at 797–98. Accordingly, whether the expert is qualified to conduct an autopsy in Arizona is irrelevant.

¶ 14 Finally, “ ‘[q]uestions about the accuracy and reliability of a witness' factual basis, data, and methods go to the weight and credibility of the witness' testimony and are questions of fact.... It is the jury's function to determine accuracy, weight, or credibility.’ ” Pipher, 221 Ariz. 399, ¶ 17, 212 P.3d at 96, quoting Logerquist v. McVey, 196 Ariz....