State v. Romero
| Decision Date | 31 December 2014 |
| Docket Number | No. 2 CA–CR 2012–0378.,2 CA–CR 2012–0378. |
| Citation | 341 P.3d 493,703 Ariz. Adv. Rep. 11,236 Ariz. 451 |
| Parties | The STATE of Arizona, Appellee, v. Joseph Javier ROMERO, Appellant. |
| Court | Arizona Court of Appeals |
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Alan L. Amann, Assistant Attorney General, Tucson Counsel for Appellee.
Lori J. Lefferts, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant.
OPINION
¶ 1 Joseph Romero was convicted after a jury trial of second-degree murder and sentenced to a presumptive term of sixteen years. Romero argues the trial court erred when it denied his motion to dismiss the indictment due to pre-indictment delay, denied his motion to preclude testimony from the state's firearms expert, and granted the state's motion to preclude testimony from his proffered expert on firearms examination methodology. Romero also argues the trial court erred by entering a criminal restitution order at sentencing. For the reasons that follow, we vacate the criminal restitution order but otherwise affirm Romero's convictions and sentences.
¶ 2 We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Romero. State v. Haight–Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). In June 2000, S.M. was killed by two gunshot wounds
to his face and back. Among other items, a cellular telephone and six .40–caliber shell casings were discovered near S.M.'s body. Nearly one month later, when Romero was stopped by police officers in an unrelated matter, he possessed a .40–caliber Glock magazine. Officers also found a .40–caliber Glock handgun without its magazine along the path Romero had travelled just prior to his encounter with the police. This firearm later would be linked to the shell casings discovered near S.M.
¶ 3 Seven years after the homicide, a “cold case” unit examined information from the cell phone found next to S.M.'s body, which led investigators to Romero. Based on this connection, a firearms expert was asked to conduct a ballistics test of Romero's Glock handgun. The expert fired the handgun and concluded that the indentations it made on the back of each expelled shell casing matched those on the shell casings found near S.M.'s body.
¶ 4 Romero was charged by indictment with first-degree murder. After a jury trial, he was found guilty of the lesser-included offense of second-degree murder and sentenced to sixteen years' imprisonment.1 This timely appeal followed.
¶ 5 Romero argues the trial court erred by denying his motion to dismiss the charge due to pre-indictment delay based on the seven years that had elapsed between the date of S.M.'s death and when the state began investigating the case again. We review a court's ruling on a motion to dismiss for an abuse of discretion. State v. Medina, 190 Ariz. 418, 420, 949 P.2d 507, 509 (App.1997).
¶ 6 “To establish that pre-indictment delay has denied a defendant due process, there must be a showing that the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay.” State v. Broughton, 156 Ariz. 394, 397, 752 P.2d 483, 486 (1988). Romero does not allege and the record contains no evidence that the state intentionally delayed indicting him to obtain a tactical advantage. Rather, Romero contends the state was negligent in waiting until 2007 to investigate the cellular telephone found next to S.M.'s body. But even assuming the state had been negligent in this regard, it does not demonstrate the delay had been intentional and designed to “gain a tactical advantage” over Romero or “to harass him.” Id. Because Romero has not established this required element, he is not entitled to relief for pre-indictment delay under the test set forth in Broughton. See id.
¶ 7 Romero argues, however, that he is not required to demonstrate the state intentionally delayed the prosecution to gain a tactical advantage. He contends this requirement is the result of our supreme court's misinterpretation of United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Romero appears to ask that we instead apply a balancing test similar to that adopted by some federal circuit courts.See, e.g., Howell v. Barker, 904 F.2d 889, 894–95 (4th Cir.1990) ; United States v. Moran, 759 F.2d 777, 782 (9th Cir.1985). But we are “bound by decisions of the Arizona Supreme Court and ha[ve] no authority to overturn or refuse to follow its decisions.” State v. Long, 207 Ariz. 140, ¶ 23, 83 P.3d 618, 623 (App.2004). Accordingly, any changes to the test for determining whether a defendant is entitled to dismissal of charges because of pre-indictment delay “would be in the exclusive purview of [the supreme court].” State v. McPherson, 228 Ariz. 557, ¶ 16, 269 P.3d 1181, 1187 (App.2012).
¶ 8 Moreover, under either test Romero was required to demonstrate that he actually was prejudiced by the delay, which he has failed to do. See Howell, 904 F.2d at 895 ; Moran, 759 F.2d at 782. “To make a showing of actual and substantial prejudice, ‘it is not enough to show the mere passage of time nor to offer some suggestion of speculative harm; rather the defendant must present concrete evidence showing material harm.’ ” State v. Dunlap, 187 Ariz. 441, 450, 930 P.2d 518, 527 (App.1996), quoting United States v. Anagnostou, 974 F.2d 939, 942 (7th Cir.1992).
¶ 9 Romero argues his ability to mount a defense was prejudiced by the passage of time because potential witnesses had died, witnesses' memories had faded, and he was not on notice to preserve evidence showing his whereabouts at the time of the murder. Romero did not identify unavailable witnesses or possible testimony. Similarly, he has not specified what evidence he could have gathered with respect to ownership of the handgun attributed to him that was not already in the law enforcement record. Thus, Romero has not presented concrete evidence that he was actually and substantially prejudiced by the delay. See Broughton, 156 Ariz. at 397, 752 P.2d at 486. Based on the record before us, the trial court did not err by refusing Romero's request to dismiss the charge.
¶ 10 Romero next raises two arguments related to the admissibility of expert testimony under Rule 702, Ariz. R. Evid. First, he contends the trial court erred by denying his motion to preclude the testimony of the state's firearms examiner, Frank Powell, on the ground the examination was not the product of reliable principles and methods. Romero also asserts the court erred in precluding his experimental psychologist expert, Ralph Haber, from testifying at trial about scientific criticisms of all firearm identifications. We review a trial court's decisions on the admissibility of expert testimony for an abuse of discretion. State v. Davolt, 207 Ariz. 191, ¶ 69, 84 P.3d 456, 475 (2004).
¶ 11 Effective January 1, 2012, Arizona adopted the language of Rule 702, Fed.R.Evid., which reflects the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Ariz. R. Evid. 702 cmt. to 2012 amend.; State v. Perez, 233 Ariz. 38, ¶ 16, 308 P.3d 1189, 1193 (App. 2013). Under Rule 702, the trial court is to serve as a “gatekeeper [ ]” that admits testimony it initially finds reliable, permitting the jury to weigh what the court has already determined to be “reliable, expert testimony.” Ariz. R. Evid. 702 cmt. to 2012 amend.; see also Perez, 233 Ariz. 38, ¶¶ 16, 308 P.3d at 1193. This “gatekeeper” function applies not only to scientific evidence, but “also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Specifically, Rule 702, Ariz. R. Evid., provides:
“Daubert offers additional ‘non-exclusive factors for determining whether scientific evidence is admissible,’ including empirical testing, peer review, error rate, the existence of standards and controls, and the degree to which the theory and technique is generally accepted by a relevant scientific community.” Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, ¶ 12, 322 P.3d 168, 173 (App.2014), quoting Ariz. State Hosp./Ariz. Cmty. Protection & Treatment Ctr. v. Klein, 231 Ariz. 467, ¶ 27, 296 P.3d 1003, 1009 (App.2013) ; see also Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786.
¶ 12 Romero moved to preclude Powell's testimony, asserting the field of firearms identification lacked the reliability required by Daubert and Rule 702. Although he did not challenge Powell's expert qualifications, he argued that the field is not a science because the theory of unique markings from individual firearms cannot be tested under the scientific method. He also attacked the field's subjective methods, the structure and functioning of its research literature, and how examiner error rates are calculated. Additionally, Romero relied on Dr. Haber to convey...
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