State of Arizona v. Bryan Peter Foshay, 239 Ariz. 271

Background

Victim B.B. was shot in his apartment; defendant Bryan Foshay’s texts with B.B. led police to search Foshay’s home and recover a .40 caliber Ruger and Winchester PDX ammunition.
Tucson PD initial comparison microscopy could not conclusively match the autopsy bullet to Foshay’s gun; the evidence was sent to Rocky Edwards, a toolmark expert in Santa Ana.
Edwards performed additional test-fires and used both a traditional comparison microscope and a confocal 3-D imaging system; he testified the identification was made with the comparison microscope and 3-D imaging was a supplemental tool.
Trial: Edwards testified the autopsy bullet was fired from Foshay’s gun; the jury convicted Foshay of first-degree murder and he received life with parole eligibility after 25 years.
On appeal Foshay challenged (1) Edwards’s use of 3-D/confocal analysis and his qualifications, (2) admission of Edwards’s written report and interactive CD, (3) Edwards’s testimony relaying another examiner’s (Troy Ward) confirming opinion, and (4) exclusion of evidence that the victim had methamphetamine and had sold drugs previously.

Issues

Issue	State's Argument	Foshay's Argument	Held
Admissibility of Edwards’s testimony using 3‑D/confocal imaging (Rule 702/Daubert)	Edwards is a qualified toolmark expert; 3‑D/confocal aids visualization and is a reliable, peer‑reviewed supplement to comparison microscopy	Edwards lacked personal knowledge of the 3‑D software internals and limited experience with it; methodology unreliable	Court: no abuse of discretion — Edwards qualified; 3‑D/confocal was a supplemental, testable, generally accepted tool and admissible; challenges go to weight, not admissibility.
Admission of Edwards’s written report and interactive CD (hearsay/Rule 702)	Admission was proper and largely cumulative of testimony	Report/CD contain out‑of‑court statements and stronger language of certainty; hearsay and inadmissible	Court: Foshay forfeited specific objections; even reviewed for fundamental error, he failed to show prejudice — admission would not have changed verdict.
Edwards’s testimony about Troy Ward’s confirming opinion (Confrontation/Hearsay)	Ward’s review is routine peer review and was offered only to show bases for Edwards’s opinion, not for truth	Out‑of‑court opinion from non‑testifying examiner is testimonial hearsay and violates Confrontation Clause	Court: admissible as non‑hearsay basis of expert opinion (Lundstrom); not testimonial with required solemnity; no Confrontation violation.
Exclusion of victim’s methamphetamine and prior drug sale (relevance/403/constitutional defense right)	Evidence of victim’s informant role and other evidence about drug ties were admitted; meth use and a remote sale were irrelevant and unduly prejudicial	Evidence would support third‑party culpability and show motive/opportunity and risk‑taking	Court: exclusion proper — remote prior sale and drug use were not probative of third‑party culpability and were substantially more prejudicial than probative; defendant’s opportunity to present defense not impaired.

Key Cases Cited

State v. Ortiz, 238 Ariz. 329 (App. 2015) (standards for appellate review of trial rulings)
State v. Romero, 236 Ariz. 451 (App. 2014) (toolmark analysis admissibility and expert qualification under Rule 702)
State ex rel. Montgomery v. Miller, 234 Ariz. 289 (App. 2014) (Daubert factors for reliability)
State v. Lundstrom, 161 Ariz. 141 (expert may rely on and explain other experts’ work as basis for opinion)
State v. Henderson, 210 Ariz. 561 (preservation, forfeiture, and fundamental‑error review)
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial court’s gatekeeping role on scientific expert reliability)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars testimonial out‑of‑court statements by nontestifying witnesses)
Williams v. Illinois, 567 U.S. 50 (2012) (distinguishing testimonial character and hearsay issues for expert reliance)