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State v. Foshay

Court of Appeals of Arizona, Second Division

March 23, 2016

The State of Arizona, Appellee,
v.
Bryan Peter Foshay, Appellant.

Appeal from the Superior Court in Pima County No. CR20124578001 The Honorable Jane L. Eikleberry, Judge

Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee.

Steven R. Sonenberg, Pima County Public Defender By Frank P. Leto, Assistant Public Defender, Tucson Counsel for Appellant

Presiding Judge Howard authored the opinion of the Court, in which Judge Espinosa and Judge Staring concurred.

OPINION

HOWARD, PRESIDING JUDGE.

¶1 After a jury trial, Bryan Foshay was convicted of first- degree murder. On appeal, he argues the trial court erred first by allowing a toolmark expert, Rocky Edwards, to testify; second, by allowing Edwards's report to be admitted in its entirety; third, by allowing Edwards to testify regarding another expert's analysis; and finally, by precluding evidence that the victim had previously sold drugs and had methamphetamine in his system when he was killed. Because the trial court did not err, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining Foshay's conviction. State v. Ortiz, 238 Ariz. 329, ¶ 2, 360 P.3d 125, 129 (App. 2015). The victim, B.B., was killed in his apartment by a gunshot wound to the head. During the ensuing investigation, police found that Foshay had exchanged electronic messages with B.B. the night of the murder. These messages suggested that Foshay and B.B. were involved in an illegal enterprise at one point and that B.B. was involved with law enforcement in some capacity, at the time of the text messages. In one message, Foshay asked B.B. to open the door to his apartment on the night of the murder. Based on these messages, police obtained a warrant to search Foshay's home. They found a .40 caliber weapon and some "Winchester PDX" ammunition as a result of that search.

¶3 At trial, Edwards opined that the bullet which killed B.B. was shot from Foshay's gun. Foshay mounted a third-party-culpability defense which centered on testimony that B.B. had been pressured into providing information and testimony for law enforcement. Foshay claimed that one of a number of other individuals who had been engaged in the drug trade with B.B. had killed him.

¶4 The jury rejected the defense's theory of the case and, as noted above, found Foshay guilty of first-degree murder. The trial court sentenced him to a life term with the possibility of release after twenty-five years. Foshay appealed from the judgment and sentence. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

Daubert[1]Analysis

¶5 Foshay first argues, on several related grounds, that the trial court erred by admitting Edwards's testimony which was based in part on the use of three-dimensional ("3-D") imaging software and "confocal microscopic analysis." [2] "We review a trial court's ruling to admit expert testimony for an abuse of discretion." State v. Favela, 234 Ariz. 433, ¶ 4, 323 P.3d 716, 717 (App. 2014). In reviewing a trial court's ruling after a hearing on a motion to preclude expert testimony, we consider only that evidence presented at the hearing, viewing it in the light most favorable to upholding the order. Cf. State v. Carlson, 228 Ariz. 343, 2, 266 P.3d 369, 370 (App. 2011) (reviewing motion to suppress); see also State v. Huerstel, 206 Ariz. 93, 62, 75 P.3d 698, 712 (2003) (reviewing voluntariness of statement).

¶6 In order for expert witness testimony to be admissible, the party proposing the testimony must show, inter alia, that first, "the witness is qualified and [second, that] the expert's 'scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence.'" State v. Romero, Ariz., 12, 365 P.3d 358, 361 (2016), quoting Ariz. R. Evid. 702. The proponent must also demonstrate that "the testimony is based on sufficient facts or data; . . . the testimony is the product of reliable principles and methods; . . . and the expert has reliably applied the principles and methods to the facts of the case." Ariz. R. Evid. 702. "Under Rule 702, a witness may be qualified based on 'knowledge, skill, experience, training, or education.'" Romero, Ariz., 17, 365 P.3d at 362, quoting Ariz. R. Evid. 702. "For a witness to be qualified as an expert, he or she need only possess 'skill and knowledge superior to that of [people] in general.'" Id., quoting State v. Girdler, 138 Ariz. 482, 490, 675 P.2d 1301, 1309 (1983) (alteration in Romero).

¶7 The following facts were adduced at the Daubert hearing. The Tucson Police Department ("TPD") performed an initial analysis of the weapon and ammunition found in Foshay's home. Using a standard comparison microscope and the six test-fired bullets, the TPD analysts could not determine whether the autopsy bullet recovered from B.B.'s body matched the weapon found in Foshay's home.

¶8 Foshay's gun, the autopsy bullet, and the TPD "test fires" were then sent to Rocky Edwards, a toolmark analysis expert at the Santa Ana Police Department. Edwards conducted additional test fires and obtained additional bullet samples. He also conducted an analysis aided by a "confocal" microscope which utilizes 3-D imaging. Edwards concluded that Foshay's gun had fired the autopsy bullet. Based on his analysis using both scopes, Edwards found "areas of agreement" between the autopsy bullet and the test fires he compared. But he emphasized that

an identification . . . has to be done with a comparison microscope. That's the only standard that's accepted in the United States, and that's the standard [he] used in this case and in every case that [he had] ever done in 3-D. So [the confocal ...

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