State v. Salazar-Mercado

• Decision Date: 20 June 2013
• Docket Number: No. 2 CA–CR 2012–0155.,2 CA–CR 2012–0155.
• Citation: 232 Ariz. 256,663 Ariz. Adv. Rep. 4,304 P.3d 543
• Parties: The STATE of Arizona, Appellee, v. Martin David SALAZAR–MERCADO, Appellant.
• Court: Arizona Court of Appeals

232 Ariz. 256

304 P.3d 543

663 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Martin David SALAZAR–MERCADO, Appellant.

No. 2 CA–CR 2012–0155.

Court of Appeals of Arizona,

Division 2, Department B.

June 20, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Jonathan Bass, Tucson, Attorneys for Appellee.

Lori J. Lefferts, Pima County Public Defender By Lisa M. Hise, Tucson, Attorneys for Appellant.

OPINION

KELLY, Judge.

[232 Ariz. 258]¶ 1 Martin Salazar–Mercado appeals from his convictions and sentences for one count of sexual conduct with a minor and five counts of molestation of a child. He argues the trial court erred in denying his motion to preclude expert testimony pursuant to Rule 702, Ariz. R. Evid. He also contends the court erred in admitting a victim's prior inconsistent statement as substantive evidence of his guilt. We affirm.

Background

¶ 2 We view the facts in the light most favorable to sustaining the verdicts. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App.2013). In October 2010 Salazar–Mercado's niece, V.S., and her brother, H.B., disclosed to family members that Salazar–Mercado had molested them on several occasions in the past. The police were called and Salazar–Mercado was arrested.

¶ 3 Before trial, Salazar–Mercado moved to preclude the state's proposed expert witness, Dr. Wendy Dutton, a forensic interviewer, from presenting testimony on the general characteristics of child victims of sexual abuse, arguing her testimony would not satisfy the requirements of Rule 702, Ariz. R. Evid. The trial court denied the motion, and Dutton testified at trial. Salazar–Mercado was convicted as stated above.¹ He was sentenced to a combination of concurrent and consecutive sentences, the longest of which was life imprisonment, and this appeal followed.

Discussion

I. Expert Witness Testimony

¶ 4 Salazar–Mercado claims the trial court erred in denying his motion to preclude Dutton from presenting expert testimony. Generally, we review the court's admission of expert testimony for an abuse of discretion. State v. Wright, 214 Ariz. 540, ¶ 5, 155 P.3d 1064, 1066 (App.2007). However, to the extent the admissibility of the testimony is a question of law, our review is de novo. Id.; see also Cranmer v. State, 204 Ariz. 299, ¶ 8, 63 P.3d 1036, 1038 (App.2003) (“We review the interpretation of ... court rules de novo.”).

a. Rule 702(d), Ariz. R. Evid.

¶ 5 The admission of expert testimony is governed by Rule 702, Ariz. R. Evid. McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, ¶ 10, 293 P.3d 520, 525 (App.2013). The Arizona Supreme Court amended Rule 702 in September 2011, effective January 1, 2012, to “adopt[ ] Federal Rule of Evidence 702, as restyled” and to reflect 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). Ariz. R. Evid. 702 cmt.; Ariz. Sup.Ct. Order No. R–10–0035 (Sept. 8, 2011). In doing so, the court departed from the general-acceptance test detailed in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000).

¶ 6 Rule 702, Fed.R.Evid., codifies the “reliability” test for the admissibility of expert testimony that was announced in Daubert and clarified in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).²SeeFed.R.Evid. 702 advisory comm. notes. The amended version of Rule 702, Ariz. R. Evid., is identical to the federal rule and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

¶ 7 Salazar–Mercado argues, as he did in his motion to preclude, that because Dutton testified as a “cold” expert without “any knowledge or information about” the facts of his case, “nothing that she testified to [was] directly applied.” ³ He reasons she therefore could not have “reliably applied [her] principles and methods to the facts of the case,” as required by Rule 702(d).

¶ 8 In its ruling, the trial court noted the absence of Arizona authority on the application of Rule 702(d) and looked to federal law for guidance. The court first considered the advisory committee notes to Rule 702, Fed.R.Evid., and concluded they “suggest[ed] ... it was not the intention of the drafters ... to preclude the practice of calling ‘cold’ witnesses to testify.” The court also stated that although it did not find any federal authority “specifically holding that ‘cold’ testimony is admissible” it had reviewed a number of cases in which witnesses were allowed to present general expert testimony without applying it to the facts of the case. Accordingly,the court denied the motion, finding Rule 702, Ariz. R. Evid., “does not preclude an expert witness from testifying generally concerning matters within [her] expertise without thereafter applying those methods to the facts of the case.”

¶ 9 “ ‘In interpreting rules, we apply the same principles we use in interpreting statutes.’ ” State v. Harden, 228 Ariz. 131, ¶ 6, 263 P.3d 680, 681 (App.2011), quoting State v. Petty, 225 Ariz. 369, ¶ 7, 238 P.3d 637, 640 (App.2010). Our purpose is to “ ‘give effect to our supreme court's intent in promulgating the rule ... keeping in mind that the best reflection of that intent is the plain language of the rule.’ ” Id., quoting Osterkamp v. Browning, 226 Ariz. 485, ¶ 14, 250 P.3d 551, 555 (App.2011). “If the language is clear and unambiguous, we give effect to that language and do not employ other methods of ... construction.” Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (App.2005).

¶ 10 Salazar–Mercado asserts the language of Rule 702(d) clearly and unambiguously requires the exclusion of experts who do not apply their methods to the facts of the case, and therefore we should give that language effect without employing other methods of construction. See id. We disagree. As the trial court observed at the hearing on Salazar–Mercado's motion, it is unclear whether the language of Rule 702(d) “require[s] the witness apply [her] expertise specifically to the facts of the case or [whether] it require [s] that if the witness applies [her] expertise to the facts of the case, [she] do[es] so in a reliable manner.” We cannot agree with Salazar–Mercado that the rule clearly and unambiguously requires the exclusion of all expert witnesses whose testimony is offered to aid the jury without applying the testimony to the facts. Accordingly, we turn to other methods of construction. Fragoso, 210 Ariz. 427, ¶ 7, 111 P.3d at 1030.

¶ 11 In interpreting Rule 702(d) “[w]e construe [it] in accordance with its federal counterpart.” Ariz. State Hosp. v. Klein, 231 Ariz. 467, ¶ 26, 296 P.3d 1003, 1009 (App.2013); see also State v. Green, 200 Ariz. 496, ¶ 10, 29 P.3d 271, 273 (2001) (when interpreting evidentiary rule with federal counterpart we may look to federal rule for guidance). As the trial court observed, the advisory committee notes to Rule 702, Fed.R.Evid., provide that an expert is not limited to testifying in the form of an opinion but also “may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.” Indeed, the advisory committee notes directly address the application of Rule 702 to an expert witness who presents general testimony without applying it to the facts.⁴ The notes state:

If the expert purports to apply principles and methods to the facts of the case, it is important that this application be conducted reliably. Yet it might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case. For example, experts might instruct the factfinder on the principles of thermodynamics, or bloodclotting, or on how financial markets respond to corporate reports, without ever knowing about or trying to tie their testimony into the facts of the case.

Fed.R.Evid. 702, advisory comm. notes. Therefore, Federal Rule 702 “does not alter the venerable practice of using expert testimony to educate the factfinder on general principles.” Id. Rather, for this “generalized” testimony to be admissible the rule “simply requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony ‘fit’ the facts of the case.” Id.

¶ 12 The United States Supreme Court's rationale in the cases which led to the 2000 amendment of Rule 702, Fed.R.Evid., weighs in favor of the approach indicated by the advisory committee notes and against that proposed by Salazar–Mercado. In Daubert, the Court emphasized that the trial court's gatekeeping role under Rule 702 is a “ flexible one” whose “overarching subject” is the reliability of the underlying principles. 509 U.S. at 594–95, 113 S.Ct. 2786. “Many factors will bear on the inquiry, and [there is no] definitive checklist or test.” Id. at 593, 113 S.Ct. 2786. Similarly, in Kumho Tire the Court concluded Rule 702 grants the court discretion “to determine reliability in light of the particular facts and circumstances of the particular case.” 526 U.S. at 158, 119 S.Ct. 1167. In doing so, the court should consider the Rule 702 factors “where they are reasonable measures of the reliability of expert testimony.” Id. at 152, 119 S.Ct. 1167.

¶ 13 Moreover, federal courts addressing arguments similar to Salazar–Mercado's have...