The opinion
IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
JOSEPH JAVIER ROMERO,
Appellant.
No. 2 CA-CR 2012-0378
Filed December 31, 2014
Appeal from the Superior Court in Pima County
No. CR20103531001
The Honorable Deborah Bernini, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
STATE v. ROMERO
Opinion of the Court
OPINION
Presiding Judge Miller authored the opinion of the Court, in which
Judge Espinosa concurred and Chief Judge Eckerstrom specially
concurred.
M I L L E R, Presiding Judge:
¶1 Joseph Romero was convicted after a jury trial of
second-degree murder and sentenced to a presumptive term of
sixteen years. Romero argues the trial court erred when it denied
his motion to dismiss the indictment due to pre-indictment delay,
denied his motion to preclude testimony from the state’s firearms
expert, and granted the state’s motion to preclude testimony from
his proffered expert on firearms examination methodology. Romero
also argues the trial court erred by entering a criminal restitution
order at sentencing. For the reasons that follow, we vacate the
criminal restitution order but otherwise affirm Romero’s convictions
and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to
sustaining the jury’s verdict and resolve all reasonable inferences
against Romero. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d
33, 34 (App. 2008). In June 2000, S.M. was killed by two gunshot
wounds to his face and back. Among other items, a cellular
telephone and six .40-caliber shell casings were discovered near
S.M.’s body. Nearly one month later, when Romero was stopped by
police officers in an unrelated matter, he possessed a .40-caliber
Glock magazine. Officers also found a .40-caliber Glock handgun
without its magazine along the path Romero had travelled just prior
to his encounter with the police. This firearm later would be linked
to the shell casings discovered near S.M.
¶3 Seven years after the homicide, a “cold case” unit
examined information from the cell phone found next to S.M.’s
body, which led investigators to Romero. Based on this connection,
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STATE v. ROMERO
Opinion of the Court
a firearms expert was asked to conduct a ballistics test of Romero’s
Glock handgun. The expert fired the handgun and concluded that
the indentations it made on the back of each expelled shell casing
matched those on the shell casings found near S.M.’s body.
¶4 Romero was charged by indictment with first-degree
murder. After a jury trial, he was found guilty of the lesser-included
offense of second-degree murder and sentenced to sixteen years’
imprisonment.1 This timely appeal followed.
Pre-indictment Delay
¶5 Romero argues the trial court erred by denying his
motion to dismiss the charge due to pre-indictment delay based on
the seven years that had elapsed between the date of S.M.’s death
and when the state began investigating the case again. We review a
court’s ruling on a motion to dismiss for an abuse of discretion.
State v. Medina, 190 Ariz. 418, 420, 949 P.2d 507, 509 (App. 1997).
¶6 “To establish that pre-indictment delay has denied a
defendant due process, there must be a showing that the prosecution
intentionally delayed proceedings to gain a tactical advantage over
the defendant or to harass him, and that the defendant has actually
been prejudiced by the delay.” State v. Broughton, 156 Ariz. 394, 397,
752 P.2d 483, 486 (1988). Romero does not allege and the record
contains no evidence that the state intentionally delayed indicting
him to obtain a tactical advantage. Rather, Romero contends the
state was negligent in waiting until 2007 to investigate the cellular
telephone found next to S.M.’s body. But even assuming the state
had been negligent in this regard, it does not demonstrate the delay
had been intentional and designed to “gain a tactical advantage”
over Romero or “to harass him.” Id. Because Romero has not
established this required element, he is not entitled to relief for pre-
indictment delay under the test set forth in Broughton. See id.
¶7 Romero argues, however, that he is not required to
demonstrate the state intentionally delayed the prosecution to gain a
tactical advantage. He contends this requirement is the result of our
1The jury in Romero’s first trial could not reach a verdict.
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STATE v. ROMERO
Opinion of the Court
supreme court’s misinterpretation of United States v. Marion, 404 U.S.
307 (1971), and United States v. Lovasco, 431 U.S. 783 (1977). Romero
appears to ask that we instead apply a balancing test similar to that
adopted by some federal circuit courts. See, e.g., Howell v. Barker, 904
F.2d 889, 894-95 (4th Cir. 1990); United States v. Moran, 759 F.2d 777,
782 (9th Cir. 1985). But we are “bound by decisions of the Arizona
Supreme Court and ha[ve] no authority to overturn or refuse to
follow its decisions.” State v. Long, 207 Ariz. 140, ¶ 23, 83 P.3d 618,
623 (App. 2004). Accordingly, any changes to the test for
determining whether a defendant is entitled to dismissal of charges
because of pre-indictment delay “would be in the exclusive purview
of [the supreme court].” State v. McPherson, 228 Ariz. 557, ¶ 16, 269
P.3d 1181, 1187 (App. 2012).
¶8 Moreover, under either test Romero was required to
demonstrate that he actually was prejudiced by the delay, which he
has failed to do. See Howell, 904 F.2d at 895; Moran, 759 F.2d at 782.
“To make a showing of actual and substantial prejudice, ‘it is not
enough to show the mere passage of time nor to offer some
suggestion of speculative harm; rather the defendant must present
concrete evidence showing material harm.’” State v. Dunlap, 187
Ariz. 441, 450, 930 P.2d 518, 527 (App. 1996), quoting United States v.
Anagnostou, 974 F.2d 939, 942 (7th Cir. 1992).
¶9 Romero argues his ability to mount a defense was
prejudiced by the passage of time because potential witnesses had
died, witnesses’ memories had faded, and he was not on notice to
preserve evidence showing his whereabouts at the time of the
murder. Romero did not identify unavailable witnesses or possible
testimony. Similarly, he has not specified what evidence he could
have gathered with respect to ownership of the handgun attributed
to him that was not already in the law enforcement record. Thus,
Romero has not presented concrete evidence that he was actually
and substantially prejudiced by the delay. See Broughton, 156 Ariz.
at 397, 752 P.2d at 486. Based on the record before us, the trial court
did not err by refusing Romero’s request to dismiss the charge.
4
STATE v. ROMERO
Opinion of the Court
Rule 702
¶10 Romero next raises two arguments related to the
admissibility of expert testimony under Rule 702, Ariz. R. Evid.
First, he contends the trial court erred by denying his motion to
preclude the testimony of the state’s firearms examiner, Frank
Powell, on the ground the examination was not the product of
reliable principles and methods. Romero also asserts the court erred
in precluding his experimental psychologist expert, Ralph Haber,
from testifying at trial about scientific criticisms of all firearm
identifications. We review a trial court’s decisions on the
admissibility of expert testimony for an abuse of discretion. State v.
Davolt, 207 Ariz. 191, ¶ 69, 84 P.3d 456, 475 (2004).
¶11 Effective January 1, 2012, Arizona adopted the language
of Rule 702, Fed. R. Evid., which reflects the principles set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See
Ariz. R. Evid. 702 cmt. to 2012 amend.; State v. Perez, 233 Ariz. 38,
¶ 16, 308 P.3d 1189, 1193 (App. 2013). Under Rule 702, the trial court
is to serve as a “gatekeeper[]” that admits testimony it initially finds
reliable, permitting the jury to weigh what the court has already
determined to be “reliable, expert testimony.” Ariz. R. Evid. 702 cmt
to 2012 amend.; see also Perez, 233 Ariz. 38, ¶ 16, 308 P.3d at 1193.
This “gatekeeper” function applies not only to scientific evidence,
but “also to testimony based on ‘technical’ and ‘other specialized’
knowledge.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).
Specifically, Rule 702, Ariz. R. Evid., 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;
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STATE v. ROMERO
Opinion of the Court
(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.
“Daubert offers additional ‘non-exclusive factors for determining
whether scientific evidence is admissible,’ including empirical
testing, peer review, error rate, the existence of standards and
controls, and the degree to which the theory and technique is
generally accepted by a relevant scientific community.” Sandretto v.
Payson Healthcare Mgmt., Inc., 234 Ariz. 351, ¶ 12, 322 P.3d 168, 173
(App. 2014), quoting Ariz. State Hosp./Ariz. Cmty. Protection &
Treatment Ctr. v. Klein, 231 Ariz. 467, ¶ 27, 296 P.3d 1003, 1009 (App.
2013); see also Daubert, 509 U.S. at 593-94.
Admission of Toolmark Analysis for Firearm Identification
¶12 Romero moved to preclude Powell’s testimony,
asserting the field of firearms identification lacked the reliability
required by Daubert and Rule 702. Although he did not challenge
Powell’s expert qualifications, he argued that the field is not a
science because the theory of unique markings from individual
firearms cannot be tested under the scientific method. He also
attacked the field’s subjective methods, the structure and
functioning of its research literature, and how examiner error rates
are calculated. Additionally, Romero relied on Dr. Haber to convey
these general arguments, as well as to expand upon criticisms from
the National Academy of Science review of forensic sciences in
6
STATE v. ROMERO
Opinion of the Court
2009.2 The trial court conducted a Rule 702 evidentiary hearing, and
reviewed Powell’s testimony from the first trial in which he
described his qualifications as well as the methodology he used to
match spent casings to a specific firearm. The court found the
firearms identification evidence “reliable and admissible under
Arizona’s newly adopted Daubert standard.” On appeal, Romero
raises the same arguments he did below.
¶13 Before Rule 702 changed in 2012, our supreme court
determined that firearms identification testimony was admissible
under the previous standard set forth in Frye v. United States, 293 F.
1013, 1014 (D.C. Cir. 1923). See State v. Miller, 234 Ariz. 31, ¶¶ 28-31,
316 P.3d 1219, 1229 (2013); State v. Macumber, 112 Ariz. 569, 570-71,
544 P.2d 1084, 1085-86 (1976). Although Arizona courts have yet to
determine whether firearms identification is sufficiently reliable for
admission under amended Rule 702, we look to federal decisions
interpreting Federal Rule 702 for guidance. See State v. Green, 200
Ariz. 496, ¶ 10, 29 P.3d 271, 273 (2001) (“When interpreting an
evidentiary rule that predominately echoes its federal counterpart,
we often look to the latter for guidance.”); Ariz. R. Evid. 702 cmt. to
2012 amend. (“The 2012 amendment of Rule 702 adopts Federal
Rule of Evidence 702, as restyled.”).
¶14 Several federal district courts have held that firearms
identification testimony is sufficiently reliable under Daubert and
Federal Rule 702. See, e.g., United States v. Willock, 696 F. Supp. 2d
536, 571-72 (D. Md. 2010); United States v. Taylor, 663 F. Supp. 2d
2 Romero and our specially concurring colleague also cite
Strengthening Forensic Science in the United States: A Path Forward
(2009), by the National Research Council of the National Academies
(hereinafter “NAS Report”), to argue that the principle of unique
markings on discharged ammunition has not been “scientifically
demonstrated.” The NAS Report made thirteen recommendations,
none of which addressed admissibility. Id. at 19-33. Instead, the
report observed that firearms identification is highly dependent on
skill and training. Id. at 153. The NAS Report is not, standing alone,
dispositive of either the admissibility of firearms identification
testimony or sufficient to qualify Haber as an expert.
7
STATE v. ROMERO
Opinion of the Court
1170, 1179-80 (D.N.M. 2009); United States v. Monteiro, 407 F. Supp.
2d 351, 354-55 (D. Mass. 2006). In Monteiro, after a six-day
evidentiary hearing, the court held that “the underlying scientific
principle behind firearm identification—that firearms transfer
unique toolmarks to spent cartridge cases—is valid under Daubert.”
407 F. Supp. 2d at 355. Similarly, in Willock, the court determined
that the standards governing toolmark examination are sufficient to
permit a qualified expert’s testimony to assist jurors in determining
whether bullets or cartridges have been fired from a particular
firearm. 696 F. Supp. 2d at 571-72.
¶15 At the first trial, Powell testified about his background,
training, and experience in firearms identification. He is a member
of the Association of Firearm and Toolmark Examiners that
publishes a quarterly journal. He also testified that he is required to
complete an annual proficiency exam and that studies indicate an
error rate around one percent for proficiency tests given to firearms
examiners. Further, he indicated that the methodology he used to
analyze the shell casings is accepted by his scientific community as
valid, and that a second examiner was required to review his work
and agree with his conclusion before it was reported.
¶16 We find the reasoning in Monteiro and Willock
persuasive and likewise conclude that the methodology governing
firearms identification is sufficiently reliable, under Daubert and
Arizona Rule 702, to permit a qualified expert to provide in-court
technical testimony.3 See Daubert, 509 U.S. at 593-94. First, Romero
failed to develop an argument that changes in firearms identification
methods call into question Arizona case law admitting such
testimony under Frye. Nor does he identify a reason Arizona’s
adoption of the Daubert standard would justify a different result. See
Miller, 234 Ariz. 31, ¶¶ 28-31, 316 P.3d at 1229; cf. Favela, 323 P.3d
716, ¶¶ 6, 9, 323 P.3d at 718, 719. Accordingly, the trial court did not
3Our determination is consistent with other Arizona decisions
in analogous fields of technical expertise. See, e.g., State v. Favela, 234
Ariz. 433, ¶¶ 6, 9, 323 P.3d 716, 718, 719 (App. 2014) (expert
testimony on latent fingerprint and palm print evidence sufficiently
reliable to satisfy Rule 702 and Daubert).
8
STATE v. ROMERO
Opinion of the Court
abuse its discretion in denying Romero’s motion to preclude
Powell’s testimony. See Willock, 696 F. Supp. 2d at 571-72; Monteiro,
407 F. Supp. 2d at 354-55; cf. Favela, 323 P.3d 716, ¶¶ 6, 9, 323 P.3d at
718, 719.
¶17 Romero further argues that even if the trial court
properly allowed Powell to testify, the court erred by “failing to
limit his testimony regarding the certainty of his conclusions.” He
appears to rely on Monteiro in support of this argument. 407 F.
Supp. 2d at 355. Although the court in Monteiro held that the
underlying scientific principle behind firearms identification is valid
under Daubert, it determined that “the subjective nature of the
matching analysis,” meant “a firearms examiner must be qualified
through training, experience, and/or proficiency testing to provide
expert testimony.” Id. The court further concluded that a firearms
expert may give an opinion of a match “to a reasonable degree of
certainty in the ballistics field,” but may not testify that there is a
match “to an exact statistical certainty.” Id.
¶18 But Monteiro is distinguishable. Here, unlike the
examiners in Monteiro, who testified essentially that they could be
100 percent sure of a match, Powell testified that there was a match
to “a reasonable degree of scientific certainty.” See 407 F. Supp. 2d at
372. Moreover, in Ruiz-Troche v. Pepsi-Cola of Puerto Rico Bottling
Company, upon which the Monteiro court relied in support of its
holding, the court of appeals approved allowing an accident
reconstruction expert to testify to a reasonable degree of scientific
certainty. Ruiz-Troche v. Pepsi-Cola of Puerto Rico Bottling Co., 161
F.3d 77, 82 (1st Cir. 1998); see also Monteiro, 407 F. Supp. 2d at 372.
Accordingly, the trial court did not err by permitting Powell to
testify to a reasonable degree of scientific certainty.
Preclusion of Expert Testimony Criticizing Firearms Identification
¶19 Romero next argues the trial court erred in precluding
his psychology expert from testifying at trial about criticisms of
firearms identification. The court found Haber not qualified to
challenge or rebut the testimony, foundation, or opinions of Powell.
The court also found that Romero sought to introduce Haber’s
testimony to conduct what amounted to a second Daubert hearing
9
STATE v. ROMERO
Opinion of the Court
before the jury.4 Accordingly, the court granted the state’s motion to
preclude Haber’s proposed testimony.
¶20 Unlike most Rule 702 issues that courts have faced in
the last two decades, the question of whether an expert is qualified
to express a particular opinion is largely unaffected by Daubert, its
progeny, or the changes to Rule 702. Almost a century ago it was
black letter law that a person offering an expert opinion must have
the requisite qualifications on the particular matter. 5 1 Wigmore on
Evidence § 560 (2d ed. 1923); see also Gaston v. Hunter, 121 Ariz. 33,
51, 588 P.2d 326, 344 (App. 1978), citing Myers v. Cessna Aircraft Corp.,
553 P.2d 355, 370 (Or. 1976). It also was recognized that expertise is
specific, and experience in one area does not confer expertise in a
related area. Myers, 553 P.2d at 370-71. Stated differently: no expert
is competent to express an opinion on every subject. Wigmore,
supra, § 555.
¶21 As the proponent of expert testimony, Romero had the
burden of demonstrating Haber’s qualifications on the particular
issues. Sandretto, 234 Ariz. 351, ¶ 15, 322 P.3d at 174. The trial court
has broad discretion in admitting or excluding expert testimony, and
we will not reverse its ruling “unless there is a clear abuse of
4We do not address this second reason in view of our decision
affirming the trial court’s finding that Romero did not show Haber
qualified to testify about firearms identification.
5To the extent Romero or our colleague relies on authorities
discussing the test described in Rule 702(a)—“specialized
knowledge [that] will help the trier of fact”—to determine whether
an expert is “qualified,” they confound separate inquiries. While
such blending might have been more common pre-Daubert, it was a
mistake even at that time. Compare State v. Seebold, 111 Ariz. 423,
425, 531 P.2d 1130, 1132 (1975) (gun shop owner and penetration
specialist were not qualified about ballistics despite detailed
knowledge of guns and their use), with Macumber, 112 Ariz. at 570-
71, 544 P.2d at 1085-86 (chemist employed by gun and ammunitions
manufacturers, and who studied with firearms expert, should have
been permitted to testify about marks on shell casings).
10
STATE v. ROMERO
Opinion of the Court
discretion.” Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917
P.2d 222, 234 (1996); see also Salem v. U.S. Lines Co., 370 U.S. 31, 35
(1962) (trial judge has broad discretion in exclusion of expert
testimony; ruling will be sustained unless manifestly erroneous).
Moreover, the trial court determines “whether the expertise of the
witness is applicable to the subject.” Englehart v. Jeep Corp., 122 Ariz.
256, 258, 594 P.2d 510, 512 (1979).
¶22 Romero’s proof of Haber’s qualifications was limited to
general background statements in advance of his testimony about
firearms identification. Romero did not proffer a curriculum vitae,
bibliography of published articles, or other record of Haber’s
experiences and training. Haber’s graduate education and
professional background are predominantly in the field of
experimental psychology. His professional experience included
psychology-related work in academia as well as consulting in the
area of eyewitness testimony. He eventually branched out to
fingerprint analysis after he underwent fingerprint examiner
training. Haber’s firearms identification experience consisted solely
of his reviewing the relevant literature and writing a “chapter in the
California Bar Association’s publication on evidence in the criminal
courts on firearms and handgun identification.” This was the first
time he had been retained as a proposed expert in firearms
identification. Haber admitted he had “no idea what an examiner
does when he carries out an examination.”
¶23 Romero challenges the description of Haber as only a
psychologist. He posits him as an expert in the scientific field of
experimental design. Haber’s self-description was not so broad. For
instance, he taught for six years “as an assistant professor in
psychology and primarily in experimental psychology and statistics
and experimental design.” At subsequent academic positions as an
experimental psychologist, he also taught experimental design. He
explained that he has been a peer and grant reviewer “on a variety
of experimental topics where I review them, analyze them both in
terms of the appropriate experimental designs, the way the
experiment was carried out, the conclusions reached, the
interpretations and the statistical methods that were used.” One
such item involved handgun identification, but Haber provided no
11
STATE v. ROMERO
Opinion of the Court
details about the grant application he reviewed. He also has done
review work for several national academies and twenty different
journals, although apparently none involving journals read by
firearms and toolmark analysts.
¶24 Accepting for the purpose of addressing Romero’s
argument that Haber has expertise in experimental design, we
address whether that background qualifies him to testify as an
expert in firearms identification, where he has “studied this
literature for three or four years,” but has no practical experience.
First, we note that experimental design is not a separate field of
study, but generally describes various empirical models to study
measurable phenomena. It is a critical component of the scientific
method. Erica Beecher-Monas, The Heuristics of Intellectual Due
Process: A Primer for Triers of Science, 75 N.Y.U. L. Rev. 1563, 1578
(2000) (“Science Primer”) (science consists of assumptions about the
way the world works, coupled with canons of experimental design
and theoretical exemplars to address problems and explanations).
Experimental design is employed in virtually any area susceptible to
statistical analysis, such as the social, biological, and physical
sciences. See generally, David H. Kaye & David A. Freedman,
Reference Guide on Statistics, in Reference Manual on Scientific
Evidence 90-97 (2d ed. 2000). It is not a one-size-fits-all approach.
The application of experimental design principles “differ[s] widely
from field to field.” Science Primer, 75 N.Y.U. L. Rev. at 1629. A
classic text on experimental design cautions that the researcher
cannot casually transfer design principles across fields. D.R. Cox,
Planning of Experiments at vi (1958) (“[T]he practical importance of
different parts of [experimental design] varies greatly between
different applied fields.”). The issue is whether Haber could apply
his knowledge of experimental design to firearms identification.
¶25 Assuming that Haber described all of his relevant
experience, training, and knowledge, the omissions in his ability to
apply theoretical design knowledge to firearms identification are
numerous. Before this case, Haber never conducted a toolmark
analysis, never attempted to identify different firearms, and never
conducted research on firearms identification. He has no experience
in any physical sciences on which toolmark analysis rests, such as
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STATE v. ROMERO
Opinion of the Court
ballistics, metallurgy, or physics. Despite his general study of the
firearms identification literature, Haber could not describe the
methods or protocols of a toolmark analyst. Had Haber
demonstrated relevant experience or knowledge in one or more of
these areas, the issue of his qualifications would have been moot or
at least a much closer question. See, e.g., Kumho Tire Co., 526 U.S. at
153 (tire expert qualified based on master’s degree in mechanical
engineering, manufacturing experience, and tire failure analysis);
Logerquist v. McVey, 196 Ariz. 470, ¶¶ 15, 32, 1 P.3d 113, 117, 124
(2000) (psychiatrist qualified to testify about amnesia for traumatic
experiences based on education and clinical experience); Lohmeier v.
Hammer, 214 Ariz. 57, ¶¶ 3, 29, 148 P.3d 101, 104, 108-09 (App. 2006)
(biomechanical engineer qualified to testify about forces involved in
vehicle collision based on education, industry experience, and
research).
¶26 Romero and our specially concurring colleague draw a
different conclusion about Haber’s qualifications, principally relying
on his general experience in a forensic consulting firm and
experimental background. That consulting is primarily in the area
of eyewitness identification and fingerprint analysis. The first area
is not surprising because eyewitness identification experts
frequently have psychology backgrounds due to the interplay
between perception and memory. See, e.g., United States v. Moore,
786 F.2d 1308, 1312 (5th Cir. 1986) (noting conclusions of
psychological studies serve to “‘explode common myths about an
individual’s capacity for perception’”), quoting United States v. Smith,
736 F.2d 1103, 1105 (6th Cir. 1984); State v. Chapple, 135 Ariz. 281, 291,
660 P.2d 1208, 1218 (1983) (expert on eyewitness identification a
professor specializing in area of experimental and clinical
psychology dealing with perception, memory retention and recall).
To qualify as a fingerprint expert, Haber undertook professional
training, which was the “equivalent to what a fingerprint examiner
would take to be employed in a crime laboratory.” Haber offered no
such specialized training or experience with firearms identification.
Equally important, it is not the role of this court to re-weigh the
evidence proffered to qualify a person as an expert. Cauble v.
Osselaer, 150 Ariz. 256, 258, 722 P.2d 983, 985 (App. 1986) (abuse of
discretion standard requires appellate court to uphold trial court’s
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STATE v. ROMERO
Opinion of the Court
determination unless unsupported by evidence or absolutely
contrary to uncontradicted and unconflicting evidence).
¶27 Romero alternatively offered to limit Haber’s testimony
to a general critique of the field, specifically avoiding anything
Powell did. But this position is implicitly grounded on the
assumption that a person with experimental design knowledge
applicable to one field can apply the same principles to an entirely
different field. Science does not support such an assumption and
neither does the law.
¶28 For instance, in Myers, 553 P.2d at 370, the expert was
proffered to opine about the probable cause of an airplane crash
based on his experience in “technical, engineering aspects of
accident investigations.” He was a member of the Society of Air
Safety Investigators and had flown in the Air Force. Id. The trial
and appellate courts found specific absences more significant than
his admittedly pertinent experience in limited areas. The expert
“had no formal training as an accident investigator, had never
attended a seminar on that subject, was not an aeronautical
engineer, was not accredited as an instrument flight pilot, did not
have a current pilot’s license, and had never flown a light aircraft
similar to the one involved in this crash.” Id.
¶29 Similarly, in United States v. Paul, 175 F.3d 906, 912 (11th
Cir. 1999), the proponent sought to use an evidence law professor
who had co-written an article critical of forensic document
examiners to rebut the opinion of an expert in that field. Despite his
obvious expertise in evidence and having reviewed the literature
about document examiners, his lack of knowledge about
handwriting analysis precluded his opinions about the examination
conducted or the field itself. Id. at 911-12. Simply stated, even a
person with expertise in one area must demonstrate sufficient
knowledge or experience in the pertinent area to qualify as an expert
in the particular case regarding a specific opinion.
¶30 Romero indirectly seeks to counter Paul by relying on
United States v. Velasquez, 64 F.3d 844, 848 (3d Cir. 1995), in which the
appellate court concluded the trial court erred in precluding the
same law professor from criticizing handwriting standards. The
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STATE v. ROMERO
Opinion of the Court
appellate court did not explicitly address the professor’s
qualifications. Id. Instead, it “point[ed] to the Professor’s eight
years of self-directed research on handwriting analysis and his co-
authorship of a law review article on the subject.” Id. at 851. It also
noted that the government’s expert was aware of the professor’s
scholarship, the professor’s criticisms were similar to critiques that
had been subject to peer review, and the professor’s opinions were
specific to the methods used by the government’s expert. Id. at 851-
52. Additionally, the professor had read “nearly all of the literature
on the subject,” and he had been named an American Bar
Association Fellow for creating a testing mechanism to certify
handwriting analysts and to validate the accuracy of their
identifications. Id. at 847 n.4. On first look, the Eleventh and Third
circuits appear to be in conflict because they came to contrary
conclusions regarding the same law professor arguably offered for
the same purpose. The differences, however, illustrate that the
proponent in Velasquez made a considerably more detailed record
concerning the professor’s actual experience and work in
handwriting analysis. 6 Whether the circuits still would have
disagreed about the professor’s qualification to testify had the
proponents made identical proofs of expertise is unknowable, but
from the perspective of reported qualifications, there is no conflict in
the decisions.
¶31 Romero also relies on State v. Lehr, 201 Ariz. 509, 38 P.3d
1172 (2002), for intertwined propositions that expert testimony
generally supporting a defense argument is sufficient under
Rule 702 and, in any event, preclusion would violate a defendant’s
6We note, however, that the trial court in A.V. By Versace, Inc.
v. Gianni Versace S.p.A., 446 F. Supp. 2d 252, 268 (S.D.N.Y. 2006)
precluded the professor’s testimony, which was offered only to
critique the field of handwriting analysis in general. In rejecting the
proffer, the court recognized its ability to assess the weight of the
opponent’s handwriting expert testimony. Id. at 268 n.15. There
was no discussion of the professor’s specific qualifications.
15
STATE v. ROMERO
Opinion of the Court
Sixth Amendment right to present a defense. 7 Similarly, our
colleague extends the argument with reliance on a more recent
expert witness case, State v. Salazar-Mercado, 234 Ariz. 590, 325 P.3d
996 (2014). We discuss them together. First, in both cases the
Arizona Supreme Court noted that the qualifications of the defense
experts were not challenged or in doubt. Lehr, 201 Ariz. 509, n.12, 38
P.3d at 1181 n.12; Salazar-Mercado, 234 Ariz. 590, ¶12, 325 P.3d at 999.
Second, while there are few rights “more fundamental than that of
an accused to present witnesses in his own defense,” the exercise of
the right must comply with evidence rules designed to ensure
fairness and reliability. Chambers v. Mississippi, 410 U.S. 284, 302
(1973). As the Eleventh Circuit Court of Appeals explained, “a court
may constitutionally enforce evidentiary rules to limit the evidence
an accused (or for that matter any party) may present in order to
ensure that only reliable opinion evidence is admitted at trial.”
United States v. Frazier, 387 F.3d 1244, 1272 (11th Cir. 2004) (right to
put on meaningful defense did not include unfettered, unreviewable
opportunity to present expert testimony inadmissible under
Rule 702).
¶32 Finally, we observe that Romero was not deprived of
the right to challenge Powell’s testimony using the same materials
Haber referenced. There was a spirited cross-examination of Powell
about the 2009 NAS Report and several studies criticizing particular
aspects of firearms identification. The jury heard, by quotation and
paraphrase, the essence of Haber’s criticisms because much of his
analysis was derived from the NAS Report. We conclude the
preclusion of Haber’s testimony on the ground he lacked knowledge
7 Romero also notes that Lehr cites Velasquez to support his
reliance on the latter case. Such reference is misplaced because the
citation in Lehr does not pertain to expert witness qualifications. 201
Ariz. 509, ¶ 27, 38 P.3d at 1180. Rather, Lehr relies on Velasquez in
support of the principle “that judges determine admissibility of
evidence and juries decide what weight to give it.” Id. ¶ 24; see also
Velasquez, 64 F.3d at 848 (reversing trial court’s preclusion of
proffered expert testimony concerning handwriting analysis because
evidence sufficiently reliable under Rule 702).
16
STATE v. ROMERO
Opinion of the Court
or practical experience in toolmark analysis did not violate Romero’s
right to present a defense.
Criminal Restitution Order
¶33 Romero lastly argues, and the state concedes, that the
trial court erred in entering a criminal restitution order (CRO) at
sentencing. We agree and find fundamental error associated with
the CRO. See State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910
(App. 2013). In the sentencing minute entry, the trial court ordered
“all fines, fees, assessments and/or restitution are reduced to a
Criminal Restitution Order, with no interest, penalties or collection
fees to accrue while the defendant is in the Department of
Corrections.” The trial court’s imposition of the CRO before the
expiration of Romero’s sentence “‘constitute[d] an illegal sentence,
which is necessarily fundamental, reversible error.’” Lopez, 231 Ariz.
561, ¶ 2, 298 P.3d at 910, quoting State v. Lewandowski, 220 Ariz. 531,
¶ 15, 207 P.3d 784, 789 (App. 2009). This remains true even though
the court ordered the imposition of interest be delayed until after
Romero’s release. See id. ¶ 5.
Disposition
¶34 For the foregoing reasons, we vacate the CRO but
otherwise affirm Romero’s convictions and sentences.
E C K E R S T R O M, Chief Judge, specially concurring:
¶35 Although I fully agree with my colleagues’ well-
reasoned opinion in every other respect, I cannot agree that the trial
court properly precluded the testimony of the defendant’s expert
witness. In essence, the trial court ruled that an undisputed expert
in the scientific field of experimental design was unqualified to
testify about the experimental design of toolmark comparison
testing. Given that the state claimed at trial that the toolmark
comparison evidence demonstrated a match to “a reasonable degree
of scientific certainty,” Dr. Haber’s proposed testimony was relevant
and probative to Romero’s defense. Because the majority has
apparently overlooked the limited scope and nature of Haber’s
17
STATE v. ROMERO
Opinion of the Court
proffered testimony, it affirms the trial court’s erroneous preclusion
of that testimony.
¶36 I write separately at length because, in supporting that
ruling, the majority applies an elevated standard for the admission
of expert testimony at odds with both Rule 702 and controlling
jurisprudence interpreting that rule. Our supreme court has held:
(1) the presentation of general expert testimony is admissible to the
extent it is relevant, reliable, and helpful to the jury, State v. Salazar-
Mercado, 234 Ariz. 590, ¶¶ 9-11, 325 P.3d 996, 999 (2014); (2) a trial
court’s pretrial conclusion that a purported scientific practice is
reliable is not binding on the jury, and it invades the province of the
jury for a court to preclude otherwise admissible evidence
challenging such reliability, State v. Lehr, 201 Ariz. 509, ¶¶ 26-29, 38
P.3d 1172, 1180 (2002); and (3) the comparatively relaxed standards
for the admission of expert testimony under Rule 702 are not the
elevated ones set forth, for example, under the common law in the
area of medical malpractice, Seisinger v. Siebel, 220 Ariz. 85, ¶¶ 32-35,
203 P.3d 483, 492-93 (2009), or those implicitly set forth by the
Eleventh Circuit in United States v. Paul, 175 F.3d 906 (11th Cir. 1999).
To the contrary, Rule 702 does not require an expert to have
qualifications or expertise parallel to those of the opposing party’s
expert. See Ariz. R. Evid. 702 (expert may be qualified by
“knowledge, skill, experience, training, or education” to help jury
understand evidence). Rather, experts need only possess wisdom,
derived from any of these sources, superior to that of the jury on the
topic of their testimony. Pincock v. Dupnik, 146 Ariz. 91, 95, 703 P.2d
1240, 1244 (App. 1985).
¶37 In contradiction of this controlling authority, the
majority reasons expressly or implicitly that: (1) Dr. Haber’s
expertise and opinions are too general to be admissible to counter
the specific conclusions of the state’s firearms identification expert,
(2) Haber’s experiential qualifications must match or approximate
those of the state’s expert, (3) a trial court may require an expert to
possess experiential qualifications even though Rule 702 sets forth
no such prerequisite and even though the expert’s topic of testimony
would demand no such experience, and (4) an expert in
experimental design, who has reviewed all of the studies and
18
STATE v. ROMERO
Opinion of the Court
literature in the field of toolmark identification, provides a jury with
no assistance in understanding the limitations, from the standpoint
of experimental design, of the toolmark evidence before it. Finally,
the majority leaves undisturbed—and unaddressed—the trial court’s
erroneous ruling that Haber’s testimony was inadmissible because
the court had dispositively resolved the reliability of toolmark
identification evidence during the Daubert hearing, and that ruling
therefore could not be relitigated before the jury.
¶38 As a threshold matter, any assessment of an expert’s
qualifications must be anchored in the scope of the expert’s
proffered testimony. See Gaston v. Hunter, 121 Ariz. 33, 51, 588 P.2d
326, 344 (App. 1978) (expert must be competent to give expert
opinion on issue about which he is asked to testify). Here, both the
trial court and the majority are correct that Dr. Haber has never been
certified to conduct a toolmark comparison test and has never done
so himself. However, Romero did not offer Haber to critique
Powell’s execution of that test but rather for a more general task: to
question the scientific method underlying such tests, when they
have been conducted in accordance with the current standards of
the field.
¶39 In presenting his opinions on that point at the Daubert
hearing, Haber articulated the general features of conventional
toolmark comparison testing that, in his view, fell short of scientific
standards for experimental design. He further testified that those
failings limited the scientific weight that could be placed on the
results of any such test. As Romero’s counsel clarified, Haber was
not offered to comment on the facts of the case or to opine whether
Powell was ultimately “right or wrong.” Although Haber testified
that he was completely familiar with the extensive literature and
studies in the field of toolmark analysis and the protocols for such
testing, Romero did not contend that Haber was qualified to
challenge whether Powell correctly performed the test of the
weapon in accordance with the standards of that field. Instead,
Haber opined that those tests, even if conducted correctly, could not
scientifically justify the conclusions that the state sought to draw.
¶40 Therefore, our task is not to assess whether Dr. Haber
had the qualifications to opine about the mechanics of conducting a
19
STATE v. ROMERO
Opinion of the Court
toolmark comparison but rather whether he was qualified to testify
as to the general scientific limitations of the field. Our supreme
court has recently held that Rule 702, Ariz. R. Evid., allows an expert
to offer “general, educative testimony to help the trier of fact
understand evidence or resolve fact issues.” Salazar-Mercado, 234
Ariz. 590, ¶ 6, 325 P.3d at 998. The court explained that nothing in
Rule 702 “‘alter[s] the venerable practice’ of permitting experts ‘to
educate the factfinder about general principles.’” Salazar-Mercado,
234 Ariz. 590, ¶ 9, 325 P.3d at 999, quoting Fed. R. Evid. 702 advisory
committee notes, 2000 amends.
¶41 Nor are the standards set forth in Rule 702 for the
presentation of such testimony either strict or technical. General
testimony is admissible if “‘(1) the expert [is] qualified; (2) the
testimony address[es] a subject matter on which the factfinder can
be assisted by an expert; (3) the testimony [is] reliable; and (4) the
testimony “fit[s]” the facts of the case.’” Salazar-Mercado, 234 Ariz.
590, ¶ 10, 325 P.3d at 999, quoting Fed. R. Evid. 702 advisory
committee notes, 2000 amends. (alterations in Salazar-Mercado). The
“‘fit’ pertains to Rule 702(a)’s ‘helpfulness’ standard.” Salazar-
Mercado, 234 Ariz. 590, n.1, 325 P.3d at 999 n.1.
¶42 Helpfulness is determined by “‘the common sense
inquiry whether the untrained layman would be qualified to
determine intelligently and to the best possible degree the particular
issue without enlightenment from those having a specialized
understanding of the subject involved in the dispute.’” Fed. R.
Evid. 702, advisory committee notes, 1972 proposed rules, quoting
Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 418 (1952). The
requirement that evidence be helpful to assist the jury is “‘satisfied
where expert testimony advances the trier of fact’s understanding to
any degree.’” United States v. Archuleta, 737 F.3d 1287, 1297 (10th
Cir. 2013), quoting 29 Charles Alan Wright & Victor James Gold,
Federal Practice and Procedure: Evidence § 6265, at 250 (1997).
Helpfulness is therefore similar to relevance, and it is a low
threshold to clear. E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 459
n.14 (5th Cir. 2013) (en banc).
¶43 In the context of the case before us, Dr. Haber’s
proffered testimony far exceeded this modest standard. Because the
20
STATE v. ROMERO
Opinion of the Court
state lacked any eyewitness evidence that Romero was involved in
the homicide, its case depended on demonstrating Romero’s
connection to items found or identified at the crime scene. Before
trial, the state conducted a toolmark analysis on a .40 caliber Glock
handgun found in Romero’s vicinity a month after the shooting.
The state’s toolmark expert opined that, based on a visual
comparison he had conducted of the spent cartridges found at the
murder scene with those ejected by the Glock handgun during
testing, the cartridges at the scene could have been fired only by that
handgun. At trial, the state elicited, and the state’s expert
maintained, that such matches reflected “a reasonable degree of
scientific certainty.”
¶44 The defense presented Dr. Haber to challenge the
validity of this scientific claim. In essence, the defense offered Haber
to testify that: (1) the general thesis that each handgun leaves a
unique signature of discernible markings on both cartridges and
bullets has not yet been scientifically demonstrated; 8 (2) that no
standards have been developed for determining which types of “tool
marks” on a cartridge or bullet are relevant to conducting the visual
comparison, nor have any standards been developed for
determining how many similarities in markings are necessary to
conclude that a cartridge or bullet had been fired by a particular
weapon; (3) that not enough is scientifically documented about the
8 This conclusion is supported by a recent study of several
forensic sciences conducted on behalf of the National Academy of
Sciences. Nat’l Research Council of the Nat’l Academies,
Strengthening Forensic Science in the United States: A Path Forward 154
(2009) (hereinafter “NAS Report”); see also Jennifer L. Mnookin, The
Courts, the NAS, & the Future of Forensic Science, Brook. L. Rev. 1209,
1209-10 (2010) (observing that, “[f]or many long-used types of
forensic science, including fingerprint identification, firearms
identification, handwriting identification, and toolmark
identification, experts’ claims about their field, the authority of their
methodologies, and their own abilities have dramatically
outstripped what has actually been established by persuasive
research and careful study”).
21
STATE v. ROMERO
Opinion of the Court
similarities or differences between the tool marks left by individual
guns; and (4) therefore, isolated toolmark comparisons cannot yet
confidently determine by scientific standards whether a certain
visual similarity in bullets and cartridges demonstrates a match—or
merely reflects similarities of make (class) or production batch
(subclass).
¶45 In short, the state’s contention that the fatal bullets
could only have been fired from a gun later found near Romero was
significant to its case. Dr. Haber’s testimony would have been
relevant and therefore helpful to the jury in determining how much
weight to give the testing evidence marshaled by the state’s expert
in support of that claim. Notably, neither the state nor the trial court
appeared to question the relevance of Haber’s proposed testimony.
Indeed, the court allowed defense counsel to develop the same
critique of the toolmark identification evidence during cross-
examination of the state’s expert during trial.
¶46 Thus, while there is little dispute that the topic of Dr.
Haber’s testimony would have been relevant and helpful to the jury,
the trial court ultimately precluded his testimony on the ground he
lacked adequate qualifications to so testify. In determining whether
a witness is adequately qualified to testify, we must be mindful that
“‘it is not required that the witness have the best possible
qualifications, nor the highest degree of skill or knowledge, so long
as [the witness] does have skill and knowledge superior to that of
[persons] in general.’” Pincock, 146 Ariz. at 95, 703 P.2d at 1244,
quoting 1 Morris K. Udall & Joseph M. Livermore, Arizona Practice:
Law of Evidence § 22, at 31 (2d ed. 1982). A proposed expert witness
need not “‘satisfy an overly narrow test of his own qualifications’”
and is not required to have certificates of training or membership in
a professional organization. United States v. Barker, 553 F.2d 1013,
1024 (6th Cir. 1977), quoting Gardner v. Gen. Motors Corp., 507 F.2d
525, 528 (10th Cir. 1974).
¶47 Moreover, an expert’s qualifications need not mirror or
parallel those of the expert whose opinions he or she may challenge.
To the contrary, Rule 702 contemplates the admissibility of
conflicting expert testimony “based on competing methodologies.”
Ariz. R. Evid. 702 cmt. For this reason, the state’s contention that Dr.
22
STATE v. ROMERO
Opinion of the Court
Haber lacked the qualifications to assist the jury in evaluating the
reliability of toolmark analysis, simply because he was not a
practitioner of the methodology used by the state’s expert, finds
little support in Rule 702 or our jurisprudence interpreting that rule.9
¶48 Notably, the state’s toolmark expert, Frank Powell,
lacked the education, training, and experience to address Dr.
Haber’s fields of expertise—statistical analysis and experimental
design. Yet, both Powell and Haber, one qualified primarily by
experience and practice and the other primarily by education and
study, were able to provide information “helpful” and relevant to
the jury in resolving the question before it.
¶49 Indeed, the record demonstrates that Dr. Haber had
acquired ample education, training, and experience to evaluate,
from the standpoint of scientific method, whether particular
experiments produce scientifically valid conclusions. He testified
that he has a Ph.D. in experimental psychology from Stanford
University, which originally trained him to teach experimental
design. He taught experimental design for six years at Yale
University and thereafter for fifteen years at the University of Illinois
and the University of Rochester.
¶50 Notwithstanding the majority’s suggestion that he has
rarely applied his expertise in scientific design outside the field of
psychology, he has been trusted by twenty different academic
journals to conduct peer review of articles in a variety of scientific
fields as to “experimental designs” and “the interpretations and the
statistical methods” used to support “the conclusions reached.”
Organizations that have sought Dr. Haber’s expertise in
experimental design include the National Science Foundation and
9Nor would such a rule be practical. Those experts who are
skeptical of the scientific status of a practice would not likely
become trained practitioners of its methodology. An astronomer
need not be a practitioner of astrology to provide expertise on
whether the latter field is anchored in scientific principles. And to
require as much would risk insulating expert opinions from cross-
disciplinary critique.
23
STATE v. ROMERO
Opinion of the Court
the National Institute of Health. Since 1994, for two decades, Haber
has applied that expertise to research conducted in the field of the
forensic sciences. He has testified numerous times in the area of
fingerprint comparisons. He has been asked to analyze grant
applications for the study of forensic sciences by the National
Institute of Justice (NIJ), the research arm of the U.S. Department of
Justice. Specifically, the NIJ has asked him to analyze the merits of a
grant application for research of handgun identification.
¶51 He testified that he is “thoroughly familiar” with the
literature in the field of handgun identification through toolmark
identification and has written a paper, published in the California
Bar Journal, on the topic. He likewise testified that he is thoroughly
familiar with both the methodology and studies in the field of
firearms identification, including the publications of the NIJ that
provide guidelines and the most current research. Thus, while Dr.
Haber is no practitioner of the discipline of toolmark comparisons,
he is sufficiently learned in its methodologies and protocols to
usefully apply his undoubted expertise in experimental design to
that field.10
10To counter this point, the majority selectively quotes Haber’s
testimony that he had “no idea what an examiner does when he
carries out an examination.” The true meaning of this quotation is
provided by the sentence immediately preceding it, wherein Haber
stated, “I can’t talk about the error rate for a method, because there
is no method that’s described.” In the context of his complete
testimony, Haber was bluntly emphasizing that an examiner’s
methodology—namely, “put[ting] the cartridge and the bullet in a
comparison microscope and look[ing] at them and mak[ing] a
judgment then of whether they are from the same gun or not”—did
not amount to a scientific methodology and could not be tested as
such, because “[e]very examiner must be doing something slightly
different” and “[h]is conclusions are clearly personal or subjective.”
Haber was not suggesting he was unfamiliar with the methodology
and protocol for conducting a toolmark test, as he made abundantly
clear throughout his testimony.
24
STATE v. ROMERO
Opinion of the Court
¶52 In short, Dr. Haber possesses knowledge, education,
and experience far beyond that of the layperson for analyzing which
scientific or statistical conclusions may be drawn from a particular
experimental methodology and which may not. Indeed, he has been
trusted by numerous scientific journals and our nation’s most
prestigious scientific foundations to do precisely that in a wide
variety of fields. And, he has applied that knowledge for many
years to evaluating various forensic techniques.
¶53 The majority’s suggestion that Dr. Haber is little more
than a psychologist dabbling in a field otherwise alien to him cannot
be reconciled with the record before us. And, when viewed in light
of the correct legal standard set forth in Rule 702, which sets a
modest threshold, the record simply does not support the trial
court’s conclusion that Haber was unqualified to offer general
opinions on the scientific reliability of toolmark comparisons based
on his understanding—which is comprehensive—of the
experimental design of that methodology. 11 See Villalpando v.
Reagan, 211 Ariz. 305, ¶ 6, 121 P.3d 172, 174 (App. 2005) (abuse of
discretion occurs when record does not substantially support trial
court’s decision); see also State v. Chapple, 135 Ariz. 281, 297 n.18, 660
P.2d 1208, 1224 n.18 (1983) (trial court abuses discretion in
precluding expert when reasons given for ruling are clearly
untenable or unsupported by record). In this context, any arguable
deficits in Haber’s skill or training would go to the weight of his
testimony rather than its admissibility—a result Rule 702 specifically
contemplates. See Ariz. R. Evid. 702 cmt. (“The trial court’s
11 The trial court’s order demonstrates that she erroneously
considered any trial dispute about the scientific reliability of
toolmark comparison evidence to be foreclosed by her Daubert
ruling. See infra ¶¶ 65-68. Given that Haber’s testimony exclusively
addressed this very topic, her simultaneous finding—that he lacked
adequate qualifications to critique Powell’s testimony—might
merely reflect a narrower, and more accurate, conclusion that he was
unqualified to address Powell’s execution of the test. But the effect
of such a determination would be to set appropriate boundaries for
Haber’s testimony rather than to preclude it altogether.
25
STATE v. ROMERO
Opinion of the Court
gatekeeping function is not intended to replace the adversary
system. Cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”).
¶54 Notwithstanding the above record of Dr. Haber’s
affirmative qualifications, the majority asserts in essence that
Haber’s general expertise in experimental design does not qualify
him to analyze the specific scientific method underlying toolmark
comparison evidence. To support this proposition, the majority cites
two treatises to support the premise that “[t]he application of
experimental design principles ‘differ[s] widely from field to field.’”
Supra ¶ 24, quoting Science Primer, supra, at 1629.
¶55 But this unassailable premise casts doubt on Dr. Haber’s
qualifications only if he rendered his opinions in ignorance of it. In
fact, the record before us demonstrates that Haber exerted himself
over a period of several years to become comprehensively
conversant with the “literature,” “methodology,” and “studies” in
the specific field of forensic toolmark comparisons before offering
his expertise about the scientific design of that field. The record also
demonstrates that Haber has spent decades in academia teaching
experimental design at several of our nation’s most prominent
universities. We can therefore infer that he understands the most
basic premises of his own field, is conversant with the “classic
text[s]” in experimental design, supra ¶ 24, and applied the lessons
from them here.12 Furthermore, the record shows that Haber has
been trusted by numerous academic journals to conduct peer
review, from the standpoint of scientific design, in a variety of
12 Neither of the treatises articulating the foundations of
scientific design is found in the record before us. The hazard of
citing such materials for the first time on appeal, in support of a trial
court’s finding of fact, becomes apparent here. In essence, the
majority finds fault with Haber’s qualifications by suggesting that
his conclusions run afoul of the teachings of academic materials:
materials that Haber never was presented an opportunity to address
during trial court proceedings.
26
STATE v. ROMERO
Opinion of the Court
scientific fields. This, at minimum, demonstrates that these journals
believe Dr. Haber has broadly applicable expertise.
¶56 Finally, our record contains no suggestion that Dr.
Haber misidentified any scientific principles at play in the toolmark
field or even that the trial court considered this a factor in
precluding his testimony. In short, the majority’s claim here—that
Haber’s testimony could be precluded properly on the ground he
lacked sufficient sophistication in scientific design to apply that
wisdom specifically to the toolmark field—finds no foothold in the
record before us.
¶57 I fear the majority not only mischaracterizes Dr. Haber’s
qualifications in assessing his expertise to testify; it also implicitly
applies a standard at odds with our state’s rules of evidence in so
doing. As discussed above, experts are deemed qualified if they
possess wisdom greater than that of the jury as to the specific topic
of their testimony. Although superior wisdom may be gained in a
variety of ways, including by experience and training, see Ariz. R.
Evid. 702, our supreme court has clarified that mere careful study is
an equally appropriate method of securing expert qualification. See
Macumber, 112 Ariz. at 570, 544 P.2d at 1085 (superior knowledge
necessary to assist the jury may be based on nothing more than
“careful study”); see also Ariz. R. Evid. 702 (itemizing “education” as
a basis for expert qualification).
¶58 By that correct standard, the record before us is
incontrovertible: as to Dr. Haber’s topic—the experimental design
features of toolmark evidence—Haber has superior knowledge to
the jury. He is a nationally trusted expert in experimental design
generally and has applied that wisdom to toolmark evidence
specifically only after “careful study” of the toolmark comparison
field.13
13Indeed, unless some toolmark comparison practitioner exists
who has become an expert in the field of experimental design, it is
difficult to conjure an expert more qualified on the topic of Dr.
Haber’s proffered testimony than Haber himself.
27
STATE v. ROMERO
Opinion of the Court
¶59 Rather than assessing Dr. Haber’s expertise by
evaluating whether he has expertise superior to the jury, the
approach required by our rules and jurisprudence, the majority
compares Haber to the mythological perfect witness: the expert in
experimental design who has also become expert in the experiential
practice of executing a toolmark comparison. Accordingly, my
colleagues find fault with Haber’s qualifications because, inter alia,
he has never been trained as a metallurgist and has never conducted
a toolmark comparison himself. Supra ¶ 25. 14 While these may
indeed be qualifications that would make Haber a more perfect
expert on his topic, and although our supreme court could
hypothetically erect a rule for expert testimony requiring such
elevated standards for its admission, my colleagues’ approach is
simply not the one set forth in our pertinent rules and jurisprudence.
The majority supports its approach primarily with reference to one
case from a lone federal circuit, United States v. Paul, 175 F.3d 906
(11th Cir. 1999).15 There, in finding the expert unqualified, the court
14 The majority also chides Romero for not offering “a
curriculum vitae, bibliography of published articles, or other record
of Haber’s experiences and training,” supra ¶ 22, and thereby
suggests we are presented with an inadequate record of his
qualifications. But Romero elicited exhaustive testimony from
Haber under oath demonstrating his pertinent expertise in both
experimental design and toolmark analysis. Such testimony
constitutes a “record.” Moreover, Rule 702 requires no special
format for the presentation of an expert’s qualifications.
15The majority also cites Myers v. Cessna Aircraft Corp., 553 P.2d
355 (Or. 1976), to support precluding Haber’s testimony. But there,
the Oregon Supreme Court did not affirm the wholesale preclusion
of the trial testimony of the expert in question. See id. at 369. Rather,
the court merely barred that expert from opining on one topic
outside his expertise. See id. The witness, an expert trained in
mechanical engineering with some limited experience investigating
aircraft accidents, was allowed to testify generally about mechanical
and engineering matters relevant to the airplane crash, but he was
not permitted to render an opinion on its ultimate cause. Id. at 369-
70. Here, Haber was never proffered to render an ultimate opinion
28
STATE v. ROMERO
Opinion of the Court
emphasized the witness’s lack of practical training in conducting
handwriting analysis and that his only claim to expertise derived
from having reviewed the literature in the field. Id. at 912. By
contrast, our supreme court has held that an expert may indeed be
qualified by “careful study” alone, Macumber, 112 Ariz. at 570, 544
P.2d at 1085, and it has promulgated Rule 702 which, by its terms,
makes no distinctions about the types of expertise necessary to
demonstrate superior and helpful knowledge to the jury.
¶60 Moreover, the Eleventh Circuit supported its rejection
of study as a basis for expertise by observing that the witness’s
education as a law professor “did not make him any more qualified
to testify as an expert . . . than a lay person who read the same
articles.” Paul, 175 F.3d at 912. That conclusion implies that we
must measure an expert’s qualifications against a hypothetical lay
person who has reviewed the same literature. Such a standard,
which is offered without any authority, finds no support in either
the language or logic of Rule 702. Rule 702 requires an expert to
possess only such “knowledge, skill, experience, training, or
education” to “help the trier of fact to understand the evidence.”
Ariz. R. Evid. 702; see Archuleta, 737 F.3d at 1297; Chapple, 135 Ariz. at
292-93, 660 P.2d at 1219-20. And, the Paul reasoning overlooks that
the trier of fact in a criminal case is almost always a jury—a group of
laypersons who have most assuredly not reviewed all the literature
in a pertinent specialized field.16
about the execution of the toolmark comparison conducted in the
instant case. For this reason, Myers provides no authority for
excluding Haber’s general testimony about the scientific design
underlying toolmark evidence. Rather, Myers suggests such general
testimony would be admissible, just as the expert there was allowed
to testify to matters within his general expertise. See id.
16 Moreover, my colleagues’ reasoning in finding Paul
controlling fails to consider that a nationally recognized expert in
the field of experimental design such as Dr. Haber would read
toolmark literature with a considerably more sophisticated eye than
a layperson and therefore be far better equipped to assist the jury in
understanding it.
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STATE v. ROMERO
Opinion of the Court
¶61 Finally, the miserly approach to assessing expert
qualifications applied in Paul has not been adopted by other federal
circuits. The Third Circuit, in United States v. Velasquez, reversed the
trial court for precluding the very same handwriting analysis expert
whose qualifications were deemed insufficient in Paul. 64 F.3d at
848. In a dramatically different approach to that set forth by the
Eleventh Circuit, the Third Circuit acknowledged that the proffered
defense expert had gained specialized knowledge through years of
study and academic work, id. at 847 n.4, and, despite the fact that he
was not a qualified practitioner of the forensic science at issue, id. at
848 n.6, his general testimony critical of the field was nonetheless
admissible because it “called into doubt the reliability and
credibility” of the expert testimony offered by the prosecution and
would have allowed the jury “to properly weigh th[at] testimony.”
Id. at 848.
¶62 In so concluding, the court emphasized both “the
‘strong and undeniable preference [in Rule 702, Fed. R. Evid.,] for
admitting any evidence having some potential for assisting the trier
of fact’” and the relaxed standard for possessing adequate expertise
to so testify. Velasquez, 64 F.3d at 849, quoting DeLuca v. Merrell Dow
Pharm., Inc., 911 F.2d 941, 956 (3d Cir. 1990). As the court observed,
“‘[w]e have held that a broad range of knowledge, skills, and
training qualify an expert as such,’ and have ‘eschewed imposing
overly rigorous requirements of expertise.’” Id., quoting In re Paoli
R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). Indeed, this is
the approach endorsed by the United States Supreme Court in
Daubert. See 509 U.S. at 588-89 (emphasizing “permissive backdrop”
and “‘liberal thrust’ of the Federal Rules and their ‘general approach
of relaxing the traditional barriers to opinion testimony’”), quoting
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988).
¶63 As discussed above, these standards parallel those set
forth in our own version of Rule 702 and our state’s jurisprudence.
In conformity with this liberal approach to admitting expert
testimony, our supreme court has cited Velasquez with approval for
the proposition that a trial court’s gatekeeping function under
Rule 702 must not usurp the jury’s exclusive role in deciding the
weight and credibility of testimony. Lehr, 201 Ariz. 509, ¶ 27, 38
30
STATE v. ROMERO
Opinion of the Court
P.3d at 1180. And, although the majority is correct that we owe trial
courts considerable deference in assessing whether a proffered
expert is sufficiently qualified to testify, our supreme court has not
hesitated to reverse trial courts when, as here, the exercise of that
gatekeeping function usurps the jury’s role in determining the
appropriate weight to give an expert’s opinion. See id.
¶64 In short, the reasoning set forth in Paul is at odds with
the approach to analyzing expert qualifications adopted by Rule 702
of the Arizona Rules of Evidence and our controlling jurisprudence.
Paul’s holding is squarely contradicted by another federal case,
Velasquez, which has been cited with approval by our own supreme
court. I therefore cannot agree that we should anchor our reasoning
in Paul, and I fear that, in so doing, we threaten Arizona’s long held
preference for trusting juries to assess the comparative credibility of
those experts who may provide them helpful testimony.
¶65 Finally, at the core of the trial court’s decision to
preclude Dr. Haber’s testimony was a fundamental
misunderstanding of the appropriate purpose of expert testimony.
The court precluded Haber’s trial testimony on the grounds that the
court already had found the methodology and conclusions of the
state’s expert sufficiently reliable during the Daubert hearing, and
that the defense was not thereafter allowed to further “challenge an
evidentiary ruling that’s already been made by the Court.” The
court further reasoned, “I don’t think that the new rule . . . adopting
Daubert was anticipating that once the Court applied the rule that an
expert would come in and challenge the Court’s findings.”
¶66 In the closely analogous context of a Frye hearing, our
supreme court has rejected this very reasoning. Lehr, 201 Ariz. 509,
¶¶ 23-30, 38 P.3d at 1179-81. There, the defendant sought to
challenge at trial the reliability of the protocol used by the state’s
laboratory for DNA testing. Id. ¶¶ 20-23. The trial court precluded
that testimony on the primary ground that the laboratory’s protocol
“was not within the jury’s province” and that allowing the defense
to re-litigate the scientific reliability of that protocol before the jury
would provide an improper “second bite at the apple.” Id. ¶¶ 23, 25.
31
STATE v. ROMERO
Opinion of the Court
¶67 Our supreme court reversed and observed that the trial
court’s reasoning “fails to recognize that very often the same proof
used to establish admissibility also impacts weight and credibility.”
Id. ¶ 25. It then articulated the analytical distinction between the
respective roles of the trial court and jury as follows:
A Frye determination is a preliminary
finding regarding the admissibility of
scientific evidence and expert
qualifications. It is the judge who is called
upon to make this determination. Ariz. R.
Evid. 104(a). Yet, according to Rule 104(e),
the judge’s role in determining preliminary
questions “does not limit the right of a
party to introduce before the jury evidence
relevant to weight or credibility.” Ariz. R.
Evid. 104(e). Implicit in this rule is an
awareness that some evidence presented at
the preliminary hearing will also be
relevant to credibility and weight.
Otherwise, Rule 104(e) would be
superfluous.
Lehr, 201 Ariz. 509, ¶ 26, 38 P.3d at 1180.17 It concluded that the trial
court’s preclusion of the evidence presented at the Frye hearing
“infringed upon the role of the jury and improperly insulated the
state’s evidence from critique.” Lehr, 201 Ariz. 509, ¶ 29, 38 P.3d at
1180.
¶68 Although the supreme court has adopted new rules for
the pretrial determination of the admissibility of expert testimony
since Lehr, see Salazar-Mercado, 234 Ariz. 590, ¶ 1, 325 P.3d at 997,
those rules similarly recognize that the threshold Daubert screening
is not intended to diminish the jury’s role in assessing the reliability
17 Although Lehr quoted the prior version of Rule 104, its
material provisions remain the same. See Ariz. R. Evid. 104 cmt.
(noting changes intended to be stylistic only).
32
STATE v. ROMERO
Opinion of the Court
of expert testimony. As the Comment to the 2012 Amendment to
Rule 702 observes:
The amendment is not intended to
supplant traditional jury determinations of
credibility and the weight to be afforded
otherwise admissible testimony . . . . Cross-
examination, presentation of contrary
evidence, and careful instruction on the
burden of proof are the traditional and
appropriate means of attacking shaky but
admissible evidence.
When the trial court precluded Dr. Haber’s testimony challenging
the reliability of the state’s evidence on the ground that the court
had already resolved that question during the Daubert hearing, the
court overlooked that Haber’s testimony went to the weight and
credibility of the state’s expert testimony and that its preclusion
improperly insulated the state’s expert from critique.18 The majority
mentions this erroneous component of the trial court’s ruling
without further comment but overlooks that it likely influenced the
trial court’s skepticism about Haber’s qualifications.
18This problem becomes especially pronounced when, as here,
an experience-based expert makes scientific claims. As noted, the
state’s expert made scientific claims about the reliability of his
conclusions. And he specifically disputed on cross-examination that
no statistical probabilities existed concerning erroneous matches,
asserting that there had been “several papers written” on the topic
and that each of them had found the chance of another gun making
the same identifiable markings to be “astronomical.” This claim
would have been forcefully rebutted by Haber’s proposed
testimony. Accord NAS Report, supra, at 153-54 (“[T]he decision of
the toolmark examiner remains a subjective decision based on
unarticulated standards and no statistical foundation for estimation
of error rates.”). In fact, the state capitalized on the absence of Haber
in this skirmish, observing in summation that Romero had
presented “no evidence from this courtroom, from that witness
stand that actually challenges firearm analysis.”
33
STATE v. ROMERO
Opinion of the Court
¶69 In my view, for all the reasons set forth in this
concurring opinion, the trial court erred in precluding the proffered
testimony of Dr. Haber. Notwithstanding the relevance of that
testimony to significant evidence against Romero, I would also
conclude the trial court’s error was harmless beyond a reasonable
doubt. Haber’s testimony was brought exclusively to challenge the
weight the jury could place on Powell’s opinion that only Romero’s
gun could have fired the fatal shots. But there was other
circumstantial evidence connecting Romero to the scene of the
crime. Romero was both connected to a cell phone found at the
scene and a truck observed leaving it. Given that the gun in
question was found with the very person otherwise connected to the
crime by two other items of evidence, the results of Powell’s testing
rendered the proposition that another gun had fired the bullets
unlikely in the extreme. Put another way, it would be an
extraordinary coincidence if a weapon creating such similar
markings as the murder weapon, but not involved in the murder,
would happen to be found with Romero. Haber’s testimony—that
Powell’s methodology could not scientifically exclude every other
handgun in circulation as having fired the weapon—would not have
altered that stark fact. I therefore concur in the result affirming
Romero’s conviction and sentence.
34