State v. Hon Burke/Aaron

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Petitioner, ) ) v. ) ) THE HONORABLE MICHAEL D. BURKE, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of La Paz, ) ) Respondent Judge, ) ) RICHARD AARON, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 04/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-SA 12-0028 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in La Paz County Cause No. S1500CR 200900252 The Honorable Michael J. Burke, Judge JURISDICTION ACCEPTED; RELIEF GRANTED Samuel Vederman, La Paz County Attorney By Daniel J. Terrell, Deputy County Attorney Attorneys for Petitioner Parker Fred H. Welch Attorney for Real Party in Interest Parker S W A N N, Judge ¶1 In January 2010, Defendant was convicted of three counts of sexual conduct with a minor under the age of twelve and one count of aggravated assault; those convictions were subsequently overturned by this court in 1 CA-CR 10-0504, 2011 WL 3805914 (Aug. 25, 2011), because the trial court improperly allowed the entirety of the interviews with the victim to be played for the jury. 2010, Defendant Esplin. in At Defendant s first trial in January introduced expert testimony from Dr. Phillip Dr. Esplin is a licensed psychologist who specializes forensic psychology and more specifically in interview techniques for and investigation of child sex crimes. ¶2 On December 5, 2011, and again on January 6, 2012, the state requested disclosure of information and documentation to establish the reliability of Dr. Esplin s opinions and expected testimony at a second trial under Ariz. R. Crim. Proc. 15.2. Defendant never provided the documentation. Defendant responded to the state s On January 5, 2012, motion1 to exclude Dr. Esplin s testimony and the state s request for an evidentiary hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In the response, Defendant outlined the criteria set forth in United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973), and State v. Chapple, 135 Ariz. 281, 660 P.2d 1 This motion was not included in the record on appeal. 2 1208 (1983), and explained without documentation or external citation that Dr. Esplin s testimony satisfied the admissibility criteria. Defendant argued that credibility of witnesses was a matter for the jury and that challenges to Dr. Esplin s factual basis or the sufficiency of his methodology are issues cross-examination and not a basis for exclusion. for Defendant made no attempt to explain the admissibility of Dr. Esplin s testimony under the substantially Evidence 702 now in effect. revised Arizona Rule of The state replied, highlighting this omission and Defendant s failure to provide the basis for Dr. Esplin s opinions, and arguing that Dr. Esplin s testimony is inadmissible under Rule 702. ¶3 on The court held a combined Donald hearing and hearing the state s motion to preclude. The court examined the transcript of Dr. Esplin s testimony from the first trial and pointed out a series of questions and answers that would not be allowed for the second trial because they impinged on the jury s role in determining credibility. The court ultimately ruled that Dr. Esplin would be able to testify as an expert and that his testimony could include testimony about false memory. ¶4 The state brought this petition for special action, arguing that the trial court erred by ruling in limine to allow Dr. Esplin to testify about False Memory Syndrome without properly considering or finding any of the Rule 702 factors 3 prior to the ruling. court exclude Dr. Accordingly, the state requests that this Esplin s testimony about False Memory Syndrome or, in the alternative, remand and require Defendant to disclose the basis for Dr. Esplin s testimony so the trial court can make an adequate admissibility determination. DISCUSSION ¶5 Because we agree that this is an issue of first impression and statewide importance, and that no other remedy is available to the state, we exercise our discretion to accept jurisdiction. Ariz. R.P. Spec. Act. 1(a); State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001). ¶6 The current Arizona Rule of Evidence 702, effective January 1, 2012, adopts Federal Rule of Evidence 702 and states: 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 facts or data; is based on sufficient (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. 4 ¶7 The new language of Rule 702 marks a notable departure from Arizona s former test for the admissibility of expert testimony that was detailed in Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000).2 The comment to the new Arizona Rule 702 notes that the change from Logerquist and the former Rule 702 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. ¶8 Because no Arizona case law exists to provide guidance to trial courts considering admissibility of expert testimony under the new Rule 702, we look to the decisions of federal courts applying Daubert and Federal Rule 702. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) -- the third case in the Daubert trilogy that resulted in the current Federal Rule 702 -- the admissibility Supreme of Court expert noted that testimony, the when trial considering judge has the the discretion both to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert s methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause 2 Logerquist prescribed a very low threshold for the admissibility of scientific evidence, rooted in the test outlined in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) -- the same test rejected by the federal courts in Daubert and the subsequent amendment to Federal Rule 702. 5 for questioning the expert s reliability arises. Id. at 152. Accordingly, because it is within the trial court s discretion to hold a hearing to determine the reliability of expert testimony, the lack of a hearing constitutes an abuse of that discretion when the evidentiary record is insufficient to allow the court to make a proper reliability determination under Rule 702. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir. 1999). ¶9 Here, the court did accordance with Rule 702 or not Daubert conduct a hearing in before the first trial. Indeed, given the lax standards of Logerquist and the version of Rule 702 then in effect, there would have been no reason to do so. But under the new rule, it is difficult to discern how the trial court could have conducted the requisite analysis without the benefit requested testimony. of a hearing disclosures or, regarding at a the minimum, basis of review Dr. of the Esplin s Though the trial court did review the testimony from the first trial, and may have some personal recollection of the general methodologies used by Dr. Esplin, the court has been provided no offer of proof regarding False Memory Syndrome.3 3 The trial court noted that this court did not say anything about either party s expert testimony at the last trial in the appeal from the resulting convictions. We note that not only was the propriety of the expert testimony not an issue in the former appeal, the current version of Rule 702 was not in effect 6 ¶10 The N.E.2d 490 trial (Ind. court 1995), pointed to to justify Steward admitting proposed testimony under a Daubert-style test. Indiana court explained in dicta v. that State, Dr. 652 Esplin s In Steward, the once a child s credibility is called into question, proper expert testimony may be appropriate to explain unexpected behavior seemingly inconsistent with the claim of abuse. (emphasis added). patterns Id. at 499 The Indiana court continued that a trial court may consider permitting [such] expert testimony, if [it is] based upon reliable scientific principles. added). Id. (emphasis Even under the authority upon which the trial court relied, therefore, a reliability determination is necessarily a precursor to admissibility. The record here shows that no such determination was made. ¶11 Ariz. As for the court s reliance on State v. Speers, 209 125, misplaced. 98 P.3d The 560 most (App. 2005), obvious that too distinguishing is ultimately characteristic between Speers and the present case is that Speers relied on Logerquist -- a case without continuing force as a matter of Arizona law. true that Id. at 129, ¶ 14, 98 P.3d at 564. we recognized Frye s inapplicability Though it is to expert testimony that was not about scientific principles advanced by -- our silence on the issue therefore lends nothing to the trial court s ruling or Defendant s position. 7 others, there still was no discussion of how the proposed testimony in Speers satisfied the elements of Daubert (or any rule substantially equivalent to the new Rule 702) in a manner that justifies admission under current law. Id. at 130, ¶¶ 18- 19, 98 P.3d at 565. An additional and equally important factual difference in is that Speers we made explicit reference to material provided to the trial court in support of the expert testimony. such Id. at 130, ¶ 15, 98 P.3d at 565. material exactly what in the the record state of this requested case, and Not only is no such material is failed to Defendant provide. ¶12 Accordingly, we hold that the evidentiary record available to the court here was insufficient to permit it to make a legally adequate testimony was admissible. discretion by failing to determination that Dr. Esplin s The trial court therefore abused its perform required by Rule 702. 8 its gatekeeping role as CONCLUSION ¶13 We grant relief. accept jurisdiction of this special action and We remand this case to the trial court for an evidentiary hearing or for the consideration of written evidence (after disclosure) and argument regarding the manner in which Dr. Esplin s testimony squares with the requirements of Rule 702. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ MICHAEL J. BROWN, Judge /s/ ____________________________________ JON W. THOMPSON, Judge 9

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