State v. Romero

• Decision Date: 13 September 2016
• Docket Number: No. 2 CA–CR 2012–0378,2 CA–CR 2012–0378
• Parties: The State of Arizona, Appellee, v. Joseph Javier Romero, Appellant.
• Court: Arizona Court of Appeals

240 Ariz. 503

381 P.3d 297

747 Ariz. Adv. Rep. 4

The State of Arizona, Appellee,

v.Joseph Javier Romero, Appellant.

No. 2 CA–CR 2012–0378

Court of Appeals of Arizona, Division 2.

Filed September 13, 2016

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel,

Phoenix, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender, By Abigail Jensen, Assistant Public Defender, Tucson, Counsel for Appellant

Judge Miller authored the opinion of the Court, in which Chief Judge Eckerstrom concurred and Judge Espinosa dissented.

OPINION

MILLER, Judge:

¶ 1 After a jury trial, Joseph Romero was convicted of second-degree murder. State v. Romero , 236 Ariz. 451, ¶ 1, 341 P.3d 493, 495 (App.2014)

( Romero I ), vacated in part , 239 Ariz. 6, 365 P.3d 358 (2016) (Romero II ). He raised multiple issues on appeal and this court affirmed his conviction. Id. Our supreme court granted Romero's petition for review on a single issue—whether the trial court abused its discretion by precluding Romero from offering expert testimony criticizing the methods used by firearms examiners to match a gun to a crime. Romero II , 239 Ariz. 6, ¶¶ 1, 10, 365 P.3d at 360, 361. The court held that the trial court erred, vacated a portion of our opinion, and remanded the case to this court for a substantive review of whether the error was harmless. Id. ¶¶ 24, 31. Because we find that the state has not proven beyond a reasonable doubt that the jury would have convicted Romero even had it heard the precluded evidence, we reverse.

Factual and Procedural Background

¶ 2 A detailed review of the facts appears in Romero II

, thus we limit our consideration to facts pertaining to harmless error. Id. ¶¶ 2–9. Romero became a suspect in a seven-year-old homicide after detectives, using previously-unexamined information in a cell phone left at the scene, questioned whether a .40–caliber Glock Romero had allegedly discarded a month after the homicide could have been used to shoot the victim. Id. ¶¶ 2–5. Police firearms expert Frank Powell test-fired the gun to retrieve the shell casings, which he compared with casings found at the scene of the murder. Id. ¶ 5. He concluded the casings matched. Id. Romero denied involvement in the murder, but did not challenge Powell's opinion by using testimony from another firearms identification expert. Id. ¶ 6.

¶ 3 After the first trial ended in a mistrial because the jury could not reach a verdict, Romero proffered Ralph Haber as an expert in the field of experimental design. Id.

Haber generally opined that forensic firearms identification relies on unscientific standards and methods. Id. ; see also

Romero I , 236 Ariz. 451, ¶ 12, 341 P.3d at 497. Romero also sought to exclude Powell's testimony, arguing that firearms identification did not meet the requirements of Rule 702, Ariz. R. Evid. Romero II , 239 Ariz. 6, ¶ 6, 365 P.3d at 360–61. The state moved to preclude Haber's testimony and opposed the motion to preclude Powell's toolmark testimony. Id . ¶¶ 6–7. The trial court denied the motion regarding Powell, but granted the state's motion, finding that Haber was not qualified as an expert in firearms identification and that his testimony would impermissibly allow the jury to make decisions generally reserved for a Daubert¹ hearing. Id . ¶ 7. Our supreme court concluded it was error to preclude Haber's testimony because he was qualified in scientific experimental design, potential deficiencies in the design of experiments relating to toolmark analysis were relevant in assessing Powell's opinions, Haber's opinion did not impinge on the trial court's Rule 702 responsibilities, and Haber's lack of practical experience in toolmark analysis only went to the weight of his testimony. Romero II , 239 Ariz. 6, ¶¶ 17–29, 365 P.3d at 362–64. As noted above, the court remanded the case to this court to determine whether the preclusion of Haber's testimony was harmless. Id. ¶¶ 30–31.

Discussion

¶ 4 We requested supplemental briefing from the parties to consider whether, in light of our supreme court's reasoning, preclusion of Haber's testimony² requires us to reverse Romero's convictions. The parties emphasized different aspects of the record. The state primarily adopted the reasoning of our concurring colleague in Romero I

and argued that circumstantial evidence connecting Romero to the scene of the crime was sufficiently persuasive to render it extremely unlikely that the ballistics testimony was incorrect in also linking the gun to the crime, and therefore the preclusion of Haber's opinion challenging that link was harmless. 236 Ariz. 451, ¶ 69, 341 P.3d at 511 (Eckerstrom, C.J., specially concurring). Romero expanded his original argument to explain how Haber's testimony would have supplemented the cross-examination of Powell, and he suggests Haber could have convinced the jury to reject Powell's opinion that the fatal bullets came from the gun linked to Romero.

¶ 5 The state focuses its argument principally on whether the evidence unrelated to firearm identification shows overwhelmingly that the jury would have convicted Romero. This is a guilt-focused argument that generally considers the weight of the untainted, admissible evidence. In contrast, Romero contends that Powell's testimony provided the bedrock of a guilty verdict. This error-focused argument primarily considers the effect of the error on the trial. To address these arguably separate and independent perspectives, we first examine Arizona principles in our black-letter law and then the factors developed in case law.

¶ 6 Although Arizona's Rules of Civil Procedure and the Federal Rules of Criminal Procedure instruct courts to disregard any trial error that does not affect substantial rights, there is no analogous rule of Arizona criminal procedure. See Ariz. R. Civ. P. 61

(courts must disregard error that does not affect the substantial rights of the parties); Fed. R. Crim. P. 52(a) (error not affecting substantial rights must be disregarded). Arizona constitutional and statutory law, however, proscribe reversal for a trial error if “substantial justice has been done,” Ariz. Const. art. VI, § 27, or there has been no prejudice to a “substantial right” of the defendant, A.R.S. § 13–3987. Additionally, the United States Constitution provides independent protections. See

Chapman v. California , 386 U.S. 18, 21, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (“[W]e cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights.”). While an evidentiary error does not necessarily rise to the level of a deprivation of a constitutional right,³ the test for whether a substantial right has been affected does not vary depending on whether the error arises out of procedural or constitutional law. See

id. at 21–22, 87 S.Ct. 824 (declining to adopt rule that all federal constitutional errors are harmful); see also

State v. Ring , 204 Ariz. 534, ¶ 45, 65 P.3d 915, 933 (2003) (noting constitutional error may be harmless).

¶ 7 “In deciding whether error is harmless, the question ‘is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ ” State v. Leteve , 237 Ariz. 516, ¶ 25, 354 P.3d 393, 401 (2015)

, quoting

Sullivan v. Louisiana , 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). An appellate court making this harmless-error determination “does not ... ‘become in effect a second jury to determine whether a defendant is guilty.’ ” Neder v. United States , 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), quoting Roger J. Traynor, The Riddle of Harmless Error 21 (1970). Nonetheless, the appellate standard parallels the evidentiary standard required to convict: “We must be confident beyond a reasonable doubt that the error had no influence on the jury's judgment.” State v. Bible , 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). Beyond these broad statements, there is no bright-line rule for what constitutes harmless error. Id . Not surprisingly, to the extent that the harmless error doctrine has been applied outside an analytical framework, it has been criticized as conclusory. See, e.g. , D. Alex Winkelman et al., An Empirical Method for Harmless Error , 46 Ariz. St. L.J. 1405, 1412–14 (2014)

; see also Charles S. Chapel, The Irony of Harmless Error , 51 Okla. L. Rev. 501, 505–06 & n.29 (1998) (criticizing harmless error review and listing other critical journal articles).

¶ 8 In Bible

, our supreme court favorably cited Weinstein's Evidence for the variety of factors frequently considered by courts. 175 Ariz. at 588, 858 P.2d at 1191. They are⁴ :

(1) Whether the other evidence is overwhelming;

(2) Whether the erroneously excluded or admitted evidence would have been primary evidence or material fact;

(3) Whether the party was able to present the substance of the claim or defense;

(4) The cumulative effect of all errors;

(5) Whether erroneously admitted or excluded evidence is merely cumulative of similar evidence already received;

(6) Whether the relevant jury instructions were appropriate and useful;

(7) Whether the jury argument was based on tainted evidence; and

(8) The prejudicial effect of erroneously admitted or excluded evidence.

1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 103.41[5] (2d ed. 2016) (hereinafter “Weinstein”). This list incorporates the approaches of both parties and allows a more objective basis to review for harmless error. Thus, we consider these factors in light of all of the evidence below. See Bible , 175 Ariz. at 588, 858 P.2d at 1191

(harmless error review is a case-specific factual inquiry based on all evidence). Not all factors will apply, nor will they all carry the same weight in a...