Case Information
*1 FILED BY CLERK JUN 20 2013 IN THE COURT OF APPEALS COURT OF APPEALS DIVISION TWO STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2012-0155
) DEPARTMENT B Appellee, )
) O P I N I O N v. )
)
MARTIN DAVID SALAZAR-MERCADO, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20110221001
Honorable Christopher C. Browning, Judge AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Jonathan Bass Tucson
Attorneys for Appellee Lori J. Lefferts, Pima County Public Defender
By Lisa M. Hise Tucson
Attorneys for Appellant K E L L Y, Judge.
¶1
Martin Salazar-Mercado appeals from his convictions and sentences for one count of sexual conduct with a minor and five counts of molestation of a child. He argues the trial court erred in denying his motion to preclude expert testimony pursuant to Rule 702, Ariz. R. Evid. He also contends the court erred in admitting a victim’s prior inconsistent statement as substantive evidence of his guilt. We affirm.
Background
We view the facts in the light most favorable to sustaining the verdicts.
See State v. Becerra
, 231 Ariz. 200, ¶ 2,
expert witness, Dr. Wendy Dutton, a forensic interviewer, from presenting testimony on the general characteristics of child victims of sexual abuse, arguing her testimony would not satisfy the requirements of Rule 702, Ariz. R. Evid. The trial court denied the motion, and Dutton testified at trial. Salazar-Mercado was convicted as stated above. [1] He was sentenced to a combination of concurrent and consecutive sentences, the longest of which was life imprisonment, and this appeal followed.
Discussion
I. Expert Witness Testimony
¶4
Salazar-Mercado claims the trial court erred in denying his motion to
preclude Dutton from presenting expert testimony. Generally, we review the court’s
admission of expert testimony for an abuse of discretion.
State v. Wright
,
a. Rule 702(d), Ariz. R. Evid.
The admission of expert testimony is governed by Rule 702, Ariz. R. Evid.
McMurtry v. Weatherford Hotel, Inc.
, 231 Ariz. 244, ¶ 10, 293 P.3d 520, 525 (App.
2013). The Arizona Supreme Court amended Rule 702 in September 2011, effective
January 1, 2012, to “adopt[] Federal Rule of Evidence 702, as restyled” and to reflect the
principles set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc.
, 509 U.S. 579
(1993). Ariz. R. Evid. 702 cmt.; Ariz. Sup. Ct. Order No. R-10-0035 (Sept. 8, 2011). In
doing so, the court departed from the general-acceptance test detailed in
Frye v. United
States
,
of expert testimony that was announced in
Daubert
and clarified in
Kumho Tire Co., Ltd.
*4
v. Carmichael
,
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;
(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. Salazar-Mercado argues, as he did in his motion to preclude, that because
Dutton testified as a “cold” expert without “any knowledge or information about” the facts of his case, “nothing that she testified to [was] directly applied.” [3] He reasons she therefore could not have “reliably applied [her] principles and methods to the facts of the case,” as required by Rule 702(d).
In its ruling, the trial court noted the absence of Arizona authority on the application of Rule 702(d) and looked to federal law for guidance. The court first considered the advisory committee notes to Rule 702, Fed. R. Evid., and concluded they “suggest[ed] . . . it was not the intention of the drafters . . . to preclude the practice of calling ‘cold’ witnesses to testify.” The court also stated that although it did not find any federal authority “specifically holding that ‘cold’ testimony is admissible” it had reviewed a number of cases in which witnesses were allowed to present general expert testimony without applying it to the facts of the case. Accordingly, the court denied the motion, finding Rule 702, Ariz. R. Evid., “does not preclude an expert witness from testifying generally concerning matters within [her] expertise without thereafter applying those methods to the facts of the case.” “‘In interpreting rules, we apply the same principles we use in interpreting
statutes.’”
State v. Harden
,
unambiguously requires the exclusion of experts who do not apply their methods to the
facts of the case, and therefore we should give that language effect without employing
other methods of construction.
See id
. We disagree. As the trial court observed at the
hearing on Salazar-Mercado’s motion, it is unclear whether the language of Rule 702(d)
“require[s] the witness apply [her] expertise specifically to the facts of the case or
[whether] it require[s] that if the witness applies [her] expertise to the facts of the case,
[she] do[es] so in a reliable manner.” We cannot agree with Salazar-Mercado that the
rule clearly and unambiguously requires the exclusion of all expert witnesses whose
testimony is offered to aid the jury without applying the testimony to the facts.
Accordingly, we turn to other methods of construction.
Fragoso
,
counterpart.”
Ariz. State Hosp. v. Klein
,
If the expert purports to apply principles and methods to the facts of the case, it is important that this application be conducted reliably. Yet it might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case. For example, experts might instruct the factfinder on the principles of thermodynamics, or bloodclotting, or on how financial markets respond to corporate reports, without ever knowing about or trying to tie their testimony into the facts of the case.
Fed. R. Evid. 702, advisory comm. notes. Therefore, Federal Rule 702 “does not alter the venerable practice of using expert testimony to educate the factfinder on general principles.” Id . Rather, for this “generalized” testimony to be admissible the rule “simply requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony ‘fit’ the facts of the case.” Id . The United States Supreme Court’s rationale in the cases which led to the
2000 amendment of Rule 702, Fed. R. Evid., weighs in favor of the approach indicated
by the advisory committee notes and against that proposed by Salazar-Mercado. In
Daubert
, the Court emphasized that the trial court’s gatekeeping role under Rule 702 is a
“flexible one” whose “overarching subject” is the reliability of the underlying principles.
*8
Mercado’s have applied the “fit” test set forth in the advisory committee notes.
See
Klein
,
¶14
We adopt the approach set forth in the advisory committee notes to Rule
702, Fed. R. Evid., and agree with the trial court that Rule 702(d), Ariz. R. Evid., does
not require the per se preclusion of an expert who provides general testimony without
applying her principles and methods to the facts of the case. Rather, in that circumstance
the court should consider whether the testimony “fits” the facts of the case. That is,
whether the proffered testimony assists the jury “by providing it with relevant
information, necessary to a reasoned decision of the case.”
Magistrini v. One Hour
Martinizing Dry Cleaning
,
b. Rule 702(a)–(c), Ariz. R. Evid. Salazar-Mercado also claims Dutton’s testimony should have been precluded because it did not meet the requirements of Rule 702 (a)–(c). Although Salazar-Mercado presented this argument in his motion to suppress, he did not request an evidentiary hearing to examine the proposed testimony, and he acknowledged at the hearing on his motion that the court was “well aware of the proceedings as well as the subject matter.” The trial court noted that Salazar-Mercado had not requested a hearing,
“presented testimony or developed any factual record” in support of his Rule 702(a)–(c)
*10
claims.
[6]
However, the court stated it was familiar with Dutton’s testimony and observed
she is “often called by the State in cases involving sexual abuse of minors and ha[d]
testified before th[e] court on several occasions.” The court also observed that in
State v.
Curry
, when the previous version of Rule 702 was in effect, we concluded Dutton was
qualified to testify as an expert witness on the behavior of child victims of sexual abuse.
motion to suppress, again making broad assertions about the deficiency of Dutton’s testimony primarily on the ground it was “cold.” He first claims Dutton’s testimony was “not based on sufficient facts or data” because it “consisted merely of generalizations of how abuse victims behave.” See Ariz. R. Evid. 702(b). To the extent Salazar-Mercado has developed this argument, we do not agree that Rule 702 prohibits testimony simply because it is “general.” Salazar-Mercado next claims Dutton’s testimony was not the product of
reliable principles and methods, as required by Rule 702(c), because it was “based on
various research studies and [her] experience.” Citing
Daubert
, he concludes her
testimony “could not objectively be evaluated for known or potential rate of error.”
See
not have assisted the [jury] to determine a fact in issue” because as “a cold expert,
nothing that she testified to is directly applied or applicable to the situation in this case.”
As discussed earlier, however, the trial court is not required to preclude expert testimony
simply because the expert does not apply it to the facts of the case. And, to the extent
Salazar-Mercado suggests “cold” testimony would not have assisted the jury in this case,
we disagree. As our supreme court has held repeatedly, expert testimony on general
patterns of behavior “may well aid the jury in weighing the testimony of the alleged child
victim” because the average juror is not “familiar with the behavioral characteristics of
victims of child molest[ation].”
State v. Lindsey
, 149 Ariz. 472, 473-74, 720 P.2d 73,
74-75 (1986);
see also State v. Moran
, 151 Ariz. 378, 381-82, 728 P.2d 248, 251-52
(1986). Accordingly, the trial court did not abuse its discretion in denying the motion to
preclude Dutton’s testimony.
[7]
Wright
,
*12 II. Prior Inconsistent Statement
¶20
Salazar-Mercado argues the trial court erred in admitting V.S.’s prior
inconsistent statement to a police detective as substantive evidence that Salazar-Mercado
had digitally penetrated her, because the statement was unduly prejudicial. Although
Salazar-Mercado objected to the detective’s testimony as inadmissible hearsay, he did not
present the trial court with the argument he now makes on appeal.
See State v. Lopez
,
could not remember if he had penetrated her with his finger. Later in the trial the prosecutor asked a police detective, who had observed the interview of V.S., whether V.S. had “disclose[d] that [Salazar-Mercado] digitally penetrated her.” The trial court overruled Salazar-Mercado’s hearsay objection, and the detective responded that V.S. “did mention that.” On appeal, Salazar-Mercado concedes that because V.S. testified subject to
cross-examination, her prior inconsistent statement was not hearsay and could be used as substantive evidence. See Ariz. R. Evid. 801(d)(1)(A); State v. Huerstel , 206 Ariz. 93, n.9, 75 P.3d 698, 709 n.9 (2003). But, citing State v. Allred , 134 Ariz. 274, 655 P.2d parties’ pleadings, and Salazar-Mercado has provided no authority that the court was required to “apply” the cases he cited.
1326 (1982), he argues the trial court should have excluded the statement nevertheless because its probative value was outweighed by its potential for undue prejudice. In Allred , our supreme court held that when an otherwise admissible prior
inconsistent statement is used for substantive purposes, it may be excluded under Rule
403, Ariz. R. Evid., if its “probative value is substantially outweighed by the danger of
[unfair] prejudice.” 134 Ariz. at 277-78, 655 P.2d at 1329-30. The court listed five
factors to consider in making this assessment: (1) whether “the witness being impeached
denies making the impeaching statement”; (2) whether “the witness presenting the
impeaching statement has an interest in the proceeding and there is no other
corroboration that the statement was made”; (3) whether “there are other factors affecting
the reliability of the impeaching witness, such as age or mental capacity”; (4) whether the
statement is intended for substantive rather than impeachment purposes; and (5) whether
“the impeachment testimony is the only evidence of guilt.”
Id
. at 277,
interview statement. Rather, she testified she did not remember if Salazar-Mercado had
penetrated her. Accordingly, this factor does not weigh in favor of or against admitting
the detective’s testimony. As to the second factor, Salazar-Mercado asserts there was
“every reason to believe” the detective had an interest in the proceeding because “he was
*14
the lead detective and sat with the prosecution during the trial.” But, a police detective is
not “per se ‘interested’ merely by virtue of his or her involvement in a criminal
investigation, absent evidence of some personal connection with the participants or
personal stake in the case’s outcome.”
Id
. at 258,
that the truth-finding objectives of trial would be “compromised when the key issue of guilt or innocence is likely to turn upon resolution of an issue of credibility in a ‘swearing contest’ between interested witnesses.” 134 Ariz. at 277-78, 655 P.2d at 1329-30; see also State v. Cruz , 128 Ariz. 538, 540, 627 P.2d 689, 691 (1981) (prior inconsistent statement inadmissible where “possibility of prejudice is inordinately high and the reliability of the statement requires resolution of a swearing contest between the declarant and the person to whom the statement was allegedly made”). That concern simply is not present here. We conclude the use of the detective’s impeaching testimony as substantive
evidence of Salazar-Mercado’s guilt was not unduly prejudicial and did not outweigh the
probative value of the evidence. Therefore, Salazar-Mercado has not demonstrated the
trial court committed error, much less fundamental, prejudicial error, in admitting the
statement.
Henderson
,
Disposition Salazar-Mercado’s convictions and sentences are affirmed.
/s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
Notes
[1] Salazar-Mercado also was charged with two offenses involving other children— molestation of a child and sexual abuse. The state dismissed the former and the jury was unable to reach a verdict on the latter.
[2] Consistent with Daubert , the comment to Rule 702, Ariz. R. Evid., “recognizes that trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue.”
[3] Although the motion to preclude was filed in October 2011, before the
amendment to Rule 702 became effective in January 2012, by September 2011 the parties
were aware the trial would be held after the rule change became effective and apparently
agreed the amended version of Rule 702 would apply at the time of trial.
See State v.
Leonard
,
[4] As the state observes, “[a]lthough not binding, the . . . Advisory Committee Notes
‘are nearly universally accorded great weight in interpreting federal rules.’”
Horenkamp
v. Van Winkle & Co.
, 402 F.3d 1129, 1132 (11th Cir. 2005),
quoting Vergis v. Grand
Victoria Casino & Resort
,
[5] Salazar-Mercado’s proposed approach would effectively preclude all general
testimony that is not applied to the facts of the case. This broad category of testimony
was not subject to per se preclusion under the previous version of Rule 702, Ariz. R.
Evid. Indeed, our supreme court found Dutton’s testimony helpful and admissible under
that standard.
See State v. Lindsey
, 149 Ariz. 472, 473-74, 720 P.2d 73, 74-75 (1986);
see also State v. Moran
,
[6] Salazar-Mercado does not argue the trial court erred by not holding an evidentiary
hearing. We note that “[i]n determining the reliability and relevance of . . . testimony, the
court has great discretion to decide whether to set a pretrial hearing to evaluate the
proposed testimony.”
Klein
,
[7] Additionally, Salazar-Mercado cites a number of federal cases which he asserts have questioned the admissibility of testimony similar to Dutton’s. He claims that, although he presented these cases in his motion to preclude, the trial court failed to “consider and apply” them. But, in its ruling the court stated it had considered the