State of Arizona v. Joseph Javier Romero
236 Ariz. 451
| Ariz. Ct. App. | 2014Background
- In June 2000 S.M. was killed; .40-caliber shell casings and a cell phone were recovered near the body. A .40 Glock and magazine were later found in Romero’s vicinity and linked to the casings by ballistics testing.
- A cold-case review of the cell phone in 2007 led investigators to Romero; ballistics testing by the State’s expert matched casings to Romero’s Glock.
- Romero was indicted for first-degree murder, tried twice (first jury deadlocked), convicted of second-degree murder and sentenced to 16 years.
- Pretrial Romero moved to dismiss for pre‑indictment delay, moved to preclude the State’s firearms expert under Rule 702/Daubert, and sought to admit Dr. Ralph Haber (experimental psychologist) to critique firearms/toolmark identification methodology.
- Trial court denied Romero’s dismissal motion, admitted the State’s firearms testimony, and excluded Haber as unqualified to critique toolmark evidence; court imposed a Criminal Restitution Order (CRO) at sentencing.
- The court of appeals affirmed convictions and sentences, vacated the CRO, held firearms/toolmark identification testimony admissible under Rule 702/Daubert, and upheld exclusion of Haber for lack of relevant practical experience.
Issues
| Issue | Plaintiff's Argument (Romero) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Pre‑indictment delay | Delay (7 years) prejudiced Romero; evidence/witnesses lost and no notice to preserve alibi evidence | No intentional tactical delay by prosecution; Romero cannot show actual, concrete prejudice | Denial of dismissal affirmed — Romero failed to show intentional delay or concrete substantial prejudice |
| Admissibility of State firearms expert under Rule 702/Daubert | Toolmark/firearms identification is not scientifically reliable; methods subjective and untested | Methodology accepted in the field; qualified examiners, proficiency testing, review procedures support reliability | Admission affirmed — court found the methodology sufficiently reliable under Daubert/Rule 702 for qualified experts to testify |
| Whether firearms expert may testify to certainty of match | Romero sought limits on the expert’s certainty; worried about over‑stated precision | State relied on expert saying match to a "reasonable degree of scientific certainty" | No error — expert testified to reasonable scientific certainty (not absolute/statistical certainty) and was permitted to testify |
| Admissibility of defense expert (Haber) to criticize firearms identification | Haber (experimental design/psychology) would explain methodological/statistical weaknesses of toolmark analysis; proffered limited critique of field reliability | Haber lacked practical, domain‑specific experience (no toolmark testing, no ballistics/metallurgy background); proffer insufficient to qualify him to opine on toolmark methodology | Exclusion affirmed — court concluded Haber lacked the specific practical knowledge/experience to qualify to rebut or critique the examiner’s methods; exclusion did not violate Romero’s right to present a defense |
| Criminal Restitution Order (CRO) at sentencing | CRO challenged as premature while defendant remains in DOC | State conceded error | CRO vacated as illegal sentence; remainder of conviction and sentence affirmed |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (court as gatekeeper; nonexhaustive factors for admissibility of scientific evidence)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to technical and other specialized testimony)
- State v. Broughton, 156 Ariz. 394 (1988) (pre‑indictment delay requires showing of intentional delay for tactical advantage and actual prejudice)
- State v. Lehr, 201 Ariz. 509 (2002) (preliminary admissibility rulings do not bar presentation to jury of evidence relevant to weight/credibility)
- United States v. Monteiro, 407 F. Supp. 2d 351 (D. Mass. 2006) (held that toolmark/firearm identification principles can be admissible under Daubert; subjective matching requires qualified examiners)
- State v. Miller, 234 Ariz. 31 (2013) (Arizona precedents treating firearms identification as admissible under prior Frye standard)
- State v. Lopez, 231 Ariz. 561 (2013) (imposition of CRO before sentence expiration is illegal and reversible error)