Appeal from the Superior Court in Pima County The Honorable Deborah Bernini, Judge No. CR20103531-001
Opinion of the Court of Appeals, Division Two 236 Ariz. 451, 341 P.3d 493 (App. 2014)
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.
BALES CHIEF JUSTICE.
¶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.
¶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 (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. ...