State v. Romero

• Citation: 365 P.3d 358
• Decision Date: 20 January 2016
• Docket Number: No. CR–15–0039–PR.,CR–15–0039–PR.
• Parties: STATE of Arizona, Appellee, v. Joseph Javier ROMERO, Appellant.
• Court: Supreme Court of Arizona

365 P.3d 358

STATE of Arizona, Appellee,
v.
Joseph Javier ROMERO, Appellant.

No. CR–15–0039–PR.

Supreme Court of Arizona.

Jan. 20, 2016.

365 P.3d 360

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Tanja K. Kelly (argued), Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Steven R. Sonenberg, Pima County Public Defender, Abigail Jensen (argued), Assistant Public Defender, Tucson, Attorneys for Joseph Javier Romero.

Amy Kalman (argued) and Mikel Steinfeld, Maricopa County Public Defender's Office, Phoenix, and Kathleen Brody, Osborn Maledon, P.A., Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.

Chief Justice BALES authored the opinion of the Court, in which Vice Chief Justice PELANDER and Justices BRUTINEL, TIMMER, and BERCH (Retired) joined.

Chief Justice BALES, opinion of the Court.

¶ 1 The State's evidence supporting the conviction of Joseph Javier Romero included testimony by a firearms examiner, based on a toolmark comparison, that a certain pistol had fired six shell casings found at the murder scene. We consider whether the trial court abused its discretion by precluding Romero from offering expert testimony that firearms examiners use subjective rather than scientifically rigorous methods in drawing conclusions from indentations on shell casings. Because Romero's expert witness was qualified and his testimony would have been helpful to the jury in understanding the evidence, the trial court erred in excluding the testimony.

I.

¶ 2 In June 2000, a man was killed by two gunshots. Although witnesses did not see the shooting, they heard gunshots and saw two or three men flee in a dark Ford Ranger or Mazda pickup truck. Police found six spent .40–caliber shell casings and bullet fragments at the murder scene. A cell phone was also found next to the victim's body.

¶ 3 Nearly one month later, police officers stopped Romero for reasons unrelated to the murder. He possessed the magazine for a .40–caliber Glock pistol. The officers subsequently found a .40–caliber Glock pistol without its magazine along the path Romero had traveled just before encountering them. Police retained the pistol and the magazine.

¶ 4 Seven years later, a "cold case' " investigative unit inspected the cell phone and traced it to Robert E. and, through him, to Romero. Robert E. told police that, while a college student in 2000, he had known a person named "Joe" who supplied him drugs and sometimes borrowed Robert E.'s black Ford Ranger. Robert E. recalled that he had loaned his pickup truck to Joe in the summer of 2000, possibly June, and Joe had kept it longer than expected.

¶ 5 Frank Powell, a police firearms expert, examined the six .40–caliber shell casings found at the murder scene and concluded that they were all fired from the same gun. Later, Powell test-fired the Glock pistol recovered when the police stopped Romero in July 2000. Comparing indentations on the shell casings, Powell concluded that this pistol had fired the casings found at the murder scene.

¶ 6 Romero was indicted for first degree murder. The jury hung on the charge, resulting in a mistrial. Before his retrial, Romero moved to preclude Powell from testifying, arguing that the firearm examiner's conclusions lacked the reliability required by Arizona Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). At a hearing on this motion, the trial court reviewed a transcript of Powell's testimony at Romero's first trial and also considered testimony by Dr. Ralph Haber, a defense expert. Dr. Haber was not offered to testify whether Powell had correctly analyzed the toolmarks on the shell casings. Instead, Dr.

365 P.3d 361

Haber, based on his expertise in the broader field of experimental design, criticized the scientific reliability of drawing conclusions by comparing toolmarks.

¶ 7 The court denied Romero's motion, finding that Powell was qualified as an expert in the field of firearms examination and that his opinions resulted from reliable principles and methods. It also granted the State's motion to preclude Dr. Haber from testifying as a defense expert at the second trial, reasoning that Dr. Haber was not qualified as an expert in firearms identification and, alternatively, that his testimony would impermissibly invite the jury to revisit Daubert issues decided by the judge with regard to Powell's testimony.

¶ 8 At Romero's second trial, Powell testified that the shell casings from the murder scene "matche[d] very well" with the casings from test-firing the Glock pistol. He therefore concluded that the casings from the murder scene were fired from the Glock that the police found when they stopped Romero in July 2000. The jury acquitted Romero of first degree murder but convicted him of the lesser-included offense of second degree murder. The trial court sentenced Romero to a presumptive term of sixteen years' imprisonment.

¶ 9 In affirming Romero's conviction and sentence, a divided panel of the court of appeals held that the trial court had not abused its discretion in admitting Powell's testimony or in precluding Dr. Haber from testifying. State v. Romero, 236 Ariz. 451, 457–60 ¶¶ 18–32, 341 P.3d 493, 499–502 (App.2014). Specially concurring, one judge concluded that the trial court had erred by precluding Dr. Haber's testimony, but that the error was harmless. Id. at 469 ¶ 69, 341 P.3d at 511 (Eckerstrom, J., concurring).

¶ 10 We granted Romero's petition for review solely with regard to the preclusion of Dr. Haber's testimony because Rule 702's standard for admitting expert testimony is a recurring issue of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 11 We review a trial court's exclusion of evidence for an abuse of discretion, and we review de novo the interpretation of the Rules of Evidence. A court abuses its discretion by committing an error of law. State v. Bernstein, 237 Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015). As the proponent of Dr. Haber's expert testimony, Romero bears the burden of establishing its admissibility by a preponderance of the evidence. Id.

A.

¶ 12 Arizona Rule of Evidence 702 allows an expert witness to testify if, among other things, the witness is qualified and the expert's "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence...." Trial courts serve as the "gatekeepers" of admissibility for expert testimony, with the aim of ensuring such testimony is reliable and helpful to the jury.Id. cmt. (2012).

¶ 13 The trial court here concluded that Dr. Haber was not qualified to testify as an expert in firearms identification. In affirming, the court of appeals noted that Dr. Haber, although having reviewed the literature on firearms identification, had not previously been retained as an expert on firearms identification, conducted a toolmark analysis, attempted to identify different...