                             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 September 13, 2016


          Appeal from the Superior Court in Pima County
                       No. CR20103531001
             The Honorable Deborah Bernini, Judge

                           REVERSED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
                        STATE v. ROMERO
                        Opinion of the Court



                             OPINION

Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom concurred and Judge Espinosa dissented.


M I L L E R, Judge:

¶1           After a jury trial, Joseph Romero was convicted of
second-degree murder. State v. Romero, 236 Ariz. 451, ¶ 1, 341 P.3d
493, 495 (App. 2014) (Romero I), vacated in part, 239 Ariz. 6, 365 P.3d
358 (2016) (Romero II). He raised multiple issues on appeal and this
court affirmed his conviction. Id. Our supreme court granted
Romero’s petition for review on a single issue—whether the trial
court abused its discretion by precluding Romero from offering
expert testimony criticizing the methods used by firearms examiners
to match a gun to a crime. Romero II, 239 Ariz. 6, ¶¶ 1, 10, 365 P.3d
at 360, 361. The court held that the trial court erred, vacated a
portion of our opinion, and remanded the case to this court for a
substantive review of whether the error was harmless. Id. ¶¶ 24, 31.
Because we find that the state has not proven beyond a reasonable
doubt that the jury would have convicted Romero even had it heard
the precluded evidence, we reverse.

                Factual and Procedural Background

¶2           A detailed review of the facts appears in Romero II, thus
we limit our consideration to facts pertaining to harmless error.
Id. ¶¶ 2-9. Romero became a suspect in a seven-year-old homicide
after detectives, using previously-unexamined information in a cell
phone left at the scene, questioned whether a .40-caliber Glock
Romero had allegedly discarded a month after the homicide could
have been used to shoot the victim. Id. ¶¶ 2-5. Police firearms
expert Frank Powell test-fired the gun to retrieve the shell casings,
which he compared with casings found at the scene of the murder.
Id. ¶ 5. He concluded the casings matched. Id. Romero denied
involvement in the murder, but did not challenge Powell’s opinion


                                  2
                          STATE v. ROMERO
                          Opinion of the Court


by using testimony from another firearms identification expert. Id.
¶ 6.

¶3            After the first trial ended in a mistrial because the jury
could not reach a verdict, Romero proffered Ralph Haber as an
expert in the field of experimental design. Id. Haber generally
opined that forensic firearms identification relies on unscientific
standards and methods. Id.; see also Romero I, 236 Ariz. 451, ¶ 12, 341
P.3d at 497. Romero also sought to exclude Powell’s testimony,
arguing that firearms identification did not meet the requirements of
Rule 702, Ariz. R. Evid. Romero II, 239 Ariz. 6, ¶ 6, 365 P.3d at
360-61. The state moved to preclude Haber’s testimony and
opposed the motion to preclude Powell’s toolmark testimony. Id.
¶¶ 6-7. The trial court denied the motion regarding Powell, but
granted the state’s motion, finding that Haber was not qualified as
an expert in firearms identification and that his testimony would
impermissibly allow the jury to make decisions generally reserved
for a Daubert1 hearing. Id. ¶ 7. Our supreme court concluded it was
error to preclude Haber’s testimony because he was qualified in
scientific experimental design, potential deficiencies in the design of
experiments relating to toolmark analysis were relevant in assessing
Powell’s opinions, Haber’s opinion did not impinge on the trial
court’s Rule 702 responsibilities, and Haber’s lack of practical
experience in toolmark analysis only went to the weight of his
testimony. Romero II, 239 Ariz. 6, ¶¶ 17-29, 365 P.3d at 362-64. As
noted above, the court remanded the case to this court to determine
whether the preclusion of Haber’s testimony was harmless. Id.
¶¶ 30-31.

                               Discussion

¶4          We requested supplemental briefing from the parties to
consider whether, in light of our supreme court’s reasoning,
preclusion of Haber’s testimony 2 requires us to reverse Romero’s


      1Daubert   v. Merrell Dow Pharm., 509 U.S. 579 (1993).
      2Haber   testified at the Daubert hearing.


                                    3
                        STATE v. ROMERO
                        Opinion of the Court


convictions. The parties emphasized different aspects of the record.
The state primarily adopted the reasoning of our concurring
colleague in Romero I and argued that circumstantial evidence
connecting Romero to the scene of the crime was sufficiently
persuasive to render it extremely unlikely that the ballistics
testimony was incorrect in also linking the gun to the crime, and
therefore the preclusion of Haber’s opinion challenging that link was
harmless. 236 Ariz. 451, ¶ 69, 341 P.3d at 511 (Eckerstrom, C.J.,
specially concurring). Romero expanded his original argument to
explain how Haber’s testimony would have supplemented the cross-
examination of Powell, and he suggests Haber could have convinced
the jury to reject Powell’s opinion that the fatal bullets came from
the gun linked to Romero.

¶5           The state focuses its argument principally on whether
the evidence unrelated to firearm identification shows
overwhelmingly that the jury would have convicted Romero. This is
a guilt-focused argument that generally considers the weight of the
untainted, admissible evidence. In contrast, Romero contends that
Powell’s testimony provided the bedrock of a guilty verdict. This
error-focused argument primarily considers the effect of the error on
the trial. To address these arguably separate and independent
perspectives, we first examine Arizona principles in our black-letter
law and then the factors developed in case law.

¶6            Although Arizona’s Rules of Civil Procedure and the
Federal Rules of Criminal Procedure instruct courts to disregard any
trial error that does not affect substantial rights, there is no
analogous rule of Arizona criminal procedure. See Ariz. R. Civ. P. 61
(courts must disregard error that does not affect the substantial
rights of the parties); Fed. R. Crim. P. 52(a) (error not affecting
substantial rights must be disregarded). Arizona constitutional and
statutory law, however, proscribe reversal for a trial error if
“substantial justice has been done,” Ariz. Const. art. VI, § 27, or
there has been no prejudice to a “substantial right” of the defendant,
A.R.S. § 13-3987. Additionally, the United States Constitution
provides independent protections. See Chapman v. California, 386
U.S. 18, 21 (1967) (“[W]e cannot leave to the States the formulation of


                                  4
                         STATE v. ROMERO
                         Opinion of the Court


the authoritative laws, rules, and remedies designed to protect
people from infractions by the States of federally guaranteed
rights.”). While an evidentiary error does not necessarily rise to the
level of a deprivation of a constitutional right,3 the test for whether a
substantial right has been affected does not vary depending on
whether the error arises out of procedural or constitutional law. See
id. at 21-22 (declining to adopt rule that all federal constitutional
errors are harmful); see also State v. Ring, 204 Ariz. 534, ¶ 45, 65 P.3d
915, 933 (2003) (noting constitutional error may be harmless).

¶7            “In deciding whether error is harmless, the question ‘is
not whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the guilty
verdict actually rendered in this trial was surely unattributable to
the error.’” State v. Leteve, 237 Ariz. 516, ¶ 25, 354 P.3d 393, 401
(2015), quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). An
appellate court making this harmless-error determination “does not
. . . ‘become in effect a second jury to determine whether a defendant
is guilty.’” Neder v. United States, 527 U.S. 1, 19 (1999), quoting Roger
J. Traynor, The Riddle of Harmless Error 21 (1970). Nonetheless, the
appellate standard parallels the evidentiary standard required to
convict: “We must be confident beyond a reasonable doubt that the
error had no influence on the jury’s judgment.” State v. Bible, 175
Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). Beyond these broad
statements, there is no bright-line rule for what constitutes harmless
error. Id. Not surprisingly, to the extent that the harmless error
doctrine has been applied outside an analytical framework, it has
been criticized as conclusory. See, e.g., D. Alex Winkelman et al., An
Empirical Method for Harmless Error, 46 Ariz. St. L.J. 1405, 1412-14


      3The  Arizona Rules of Evidence generally correspond to the
Federal Rules of Evidence, but nonetheless stand on an independent
basis and sometimes “deliberately depart” from the federal rules.
Ariz. R. Evid., prefatory cmt. to 2012 amendments. Similarly,
because our rules of evidence are founded in state procedural law,
“federal court decisions interpreting the federal rule are persuasive
but not binding with respect to interpreting the Arizona rule.” Id.


                                   5
                          STATE v. ROMERO
                          Opinion of the Court


(2014); see also Charles S. Chapel, The Irony of Harmless Error, 51 Okla.
L. Rev. 501, 505-06 & n.29 (1998) (criticizing harmless error review
and listing other critical journal articles).

¶8            In Bible, our supreme court favorably cited Weinstein’s
Evidence for the variety of factors frequently considered by courts.
175 Ariz. at 588, 858 P.2d at 1191. They are4:

              (1) Whether the       other    evidence    is
                  overwhelming;

              (2) Whether the erroneously excluded or
                  admitted evidence would have been
                  primary evidence or material fact;

              (3) Whether the party was able to present
                  the substance of the claim or defense;

              (4) The cumulative effect of all errors;

              (5) Whether erroneously admitted or
                  excluded    evidence      is    merely
                  cumulative of similar evidence already
                  received;

              (6) Whether the relevant jury instructions
                  were appropriate and useful;

              (7) Whether the jury argument was based
                  on tainted evidence; and

              (8) The prejudicial effect of erroneously
                  admitted or excluded evidence.

1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 103.41[5] (2d ed. 2016) (hereinafter “Weinstein”). This list
incorporates the approaches of both parties and allows a more

      4 We   have changed the order of the factors to facilitate our
analysis.


                                    6
                        STATE v. ROMERO
                        Opinion of the Court


objective basis to review for harmless error. Thus, we consider these
factors in light of all of the evidence below. See Bible, 175 Ariz. at
588, 858 P.2d at 1191 (harmless error review is a case-specific factual
inquiry based on all evidence). Not all factors will apply, nor will
they all carry the same weight in a particular case.5

Overwhelming Evidence

¶9          We begin with the issue of overwhelming evidence
because it alone may be dispositive. For example, in Bible, the
improper admission of DNA evidence was found harmless because
the other evidence of guilt was “far beyond overwhelming.”
175 Ariz. at 588-89, 858 P.2d at 1191-92. The court in Bible detailed
six paragraphs of additional evidence that linked Bible to the
abduction and murder of the victim. Id.

¶10        The state6 contends there is overwhelming evidence of
Romero’s guilt because his cell phone was found at the scene of the


      5 Our   dissenting colleague objects to the categorization of
factors as creating a fragmented approach which he suggests departs
from the standards our supreme court has established. We
respectfully disagree. Bible first cited Weinstein for the factors
potentially relevant in a harmless error analysis. 175 Ariz. at 588,
858 P.2d at 1191. Moreover, each elucidated factor is based on or
consistent with Arizona case law.         In contrast, the dissent’s
concluding reliance on State v. Anthony, 218 Ariz. 439, ¶ 39, 189 P.3d
366, 373 (2008), follows a summary description of one factor we
address in detail—but which is separate from additional factors not
limited to evidence of guilt. We also observe that although the court
in Anthony provided a very detailed recitation of the circumstantial
evidence supporting the murder conviction, its conclusion that the
evidentiary error was not harmless involved weighing the impact of
the improper evidence. Id. ¶¶ 3-23, 40-42.
      6The  dissent enlarges the discussion of several facts that are
referred to briefly by the state. To maintain context, we discuss
them here and with singular attribution to the state’s position.


                                  7
                         STATE v. ROMERO
                         Opinion of the Court


shooting; the victim was in the contacts list of the phone; two of the
men seen fleeing the scene were described as Hispanic; one of the
fleeing men referred to another as “Joe”; the description of the truck
at the scene was similar to a Ford Ranger Romero had driven; and,
Romero discarded a Glock one month after the shooting when he
was being followed by police. To determine the significance of the
evidence, we start with the offense charged and then address
specific facts.

¶11           Romero was indicted for first-degree murder, but the
jury was not instructed on accomplice liability; rather, it was
instructed only on the lesser offenses of second-degree murder and
manslaughter. Moreover, the state only argued to the jury that
Romero fired the fatal bullet and explicitly rejected before the court
an alternative liability theory. The limited charge and instructions,
and the absence of argument to the contrary, precluded alternative
theories of criminal liability that might have included shots fired by
other persons present at the scene. See, e.g., State v. King, 226 Ariz.
253, ¶ 16, 245 P.3d 938, 943 (App. 2011) (criminal liability may be
based on accomplice theory if state proves defendant aided or
facilitated commission of offense by principal). Thus, it was not
sufficient to prove only that Romero was present and may have fired
a gun at the scene.

¶12          The evidence unrelated to the Glock supports the
contention that Romero was at the scene, but it is not overwhelming.
For instance, the eyewitnesses differed as to whether there were two
or three men running from the scene. The eyewitness who was able
to estimate the height of the men initially described them as five feet,
seven inches to five feet, eight inches, but added several inches to
the estimate in his trial testimony. Romero is six feet, one inch to six
feet, two inches. The same witness identified the truck as a Ford
Ranger or a Mazda pickup. Further, the evidence did not show that
Romero was the exclusive driver of the Ford Ranger; rather, it
suggested he was merely one of its users. Finally, the name
reference could have been mistaken for “Joel,” the victim’s
roommate and the initial suspect in the case. Notably, no witness
knew Romero or could identify him at trial as a person at the scene.


                                   8
                         STATE v. ROMERO
                         Opinion of the Court


¶13           Even if we assume the eyewitness testimony and the
location at the scene of a cell phone used by Romero suggests he was
one of the two or three men running after four or five shots were
heard, it was the state’s burden to prove Romero was the person
who actually fired the fatal shots. Moreover, although two bullets
were recovered from the victim’s body, there was no evidence
linking those bullets to specific shell casings. Thus, the match of a
Glock—separately and independently linked to Romero—to the
shell casings found on the ground was the strongest evidence that he
fired the shots. Removing from consideration a factual conclusion of
a match, the remaining evidence was arguably sufficient to survive a
Rule 20 motion, but the state’s burden is greater: it must show
overwhelming evidence. State v. Anthony, 218 Ariz. 439, ¶ 41, 189
P.3d 366, 373 (2008) (state’s burden exceeds “whether the jury was
justified in its verdict”). Finally, we note that Romero’s first trial
resulted in a hung jury. See State v. Rich, 184 Ariz. 179, 181, 907 P.2d
1382, 1384 (1995) (noting hung jury in conclusion error not
harmless); see also Cobb v. State, 658 S.E.2d 750, 753 (Ga. 2008) (noting
“prior hung juries are a factor supporting a finding of harmful
error”); State v. Edwards, 128 P.3d 631, ¶¶ 16-17 (Wash. Ct. App.
2006) (noting previous hung jury in considering whether untainted
evidence overwhelming). We are skeptical the prior jury would
have been unable to reach a verdict if the evidence was indeed as
“overwhelming” as the state maintains. On this record, we cannot
conclude there was overwhelming evidence that Romero fired the
gun that killed the victim. See State v. Lehr, 201 Ariz. 509, ¶¶ 31-43,
38 P.3d 1172, 1181-83 (2002) (preclusion of cross-examination and
defense expert testimony criticizing DNA testing not harmless
where DNA was key evidence).

Primary Evidence

¶14         In determining whether evidentiary errors are harmless,
courts also consider whether the error involved the admission or
exclusion of primary evidence. Compare State v. Ontiveros-Loya,
237 Ariz. 472, ¶ 22, 352 P.3d 941, 947-48 (App. 2015) (error not
harmless where erroneously admitted photographs “strongest
evidence produced at trial” that defendant possessed deadly


                                   9
                         STATE v. ROMERO
                         Opinion of the Court


weapon), with State v. Nelson, 146 Ariz. 246, 248-49, 705 P.2d 486,
488-89 (App. 1985) (any error in admitting intoxilyzer test results
harmless as to conviction for unlawful flight from pursuing law
enforcement vehicle). Here, Haber’s proposed testimony, generally
critiquing the science of firearms identification, would not have
included evidence that Haber had reached a different conclusion
than Powell; it was only intended to weaken Powell’s testimony that
the gun and shell casings matched, without directly contradicting
Powell’s findings. Haber’s testimony therefore was not primary
evidence. Cf. Petree v. Victor Fluid Power, Inc., 887 F.2d 34, 41-42 (3d
Cir. 1989) (erroneous preclusion of rebuttal evidence that “totally
contradicted” defense “star witness” not harmless).

Opportunity to Present Claim or Defense

¶15          Whether an error is harmless may also be considered in
the context of a party’s ability to present the substance of his claim
or defense. See, e.g., Gaston v. Hunter, 121 Ariz. 33, 52-53, 588 P.2d
326, 345-46 (App. 1978) (exclusion of some expert opinions harmless
where substance elicited at other times in trial). The substance of
Romero’s claim regarding the match of the gun was that not enough
is known about the uniqueness of gun toolmarks 7 to warrant
reliance on a match by an examiner. Romero impeached the
foundation of Powell’s opinions in cross-examination using a report
from the National Academy of Sciences (NAS) that criticized “the
lack of a precisely defined process” in toolmark analysis, which
makes difficult “well-characterized confidence limits.”          Nat’l
Research Council, Strengthening Forensic Science in the United States:
A Path Forward 155 (2009). In fact, Haber’s opinions relied in no
small part on the NAS report. Accordingly, we conclude Romero




      7A  “toolmark” is the impression left on a softer surface when
it comes into contact with a hard object. In this context, it refers to
imprints left by the gun’s firing pin and related parts on the bullet
casings. See generally United States v. Monteiro, 407 F. Supp. 2d 351,
359-61 (D. Mass. 2006).

                                  10
                         STATE v. ROMERO
                         Opinion of the Court


was able to present the substance of his challenge to the reliability of
Powell’s opinions.8

Cumulative Effect of Errors

¶16          Evidentiary errors may compromise only a small
portion of the total evidence or they may be repeated with a
significant cumulative effect. See, e.g., Town of Paradise Valley v.
Laughlin, 174 Ariz. 484, 487, 490, 851 P.2d 109, 112, 115 (App. 1992)
(vacating and remanding due to “cumulative effect of the court’s
error,” although preclusion of defendant’s testimony alone would
not warrant new trial); Coyner Crop Dusters v. Marsh, 91 Ariz. 371,
375, 372 P.2d 708, 711 (1962) (although new trial required because of
incorrect jury instructions, other errors also considered because
“cumulative effect” could result in unfair trial). In criminal cases,
however, Arizona rejects the “cumulative error doctrine” outside the
context of prosecutorial misconduct claims. State v. Hughes, 193
Ariz. 72, ¶ 25, 969 P.2d 1184, 1190-91 (1998). Because there is no
claim of prosecutorial misconduct, this factor does not apply.

Cumulative Evidence

¶17          The significance of evidence erroneously admitted or
excluded may depend on whether it is more of the same type of
evidence properly admitted in the case. See, e.g., State v. Williams,
133 Ariz. 220, 226, 650 P.2d 1202, 1208 (1982) (erroneous admission
of hearsay harmless where cumulative to testimony at trial).
Cumulative evidence supports a fact “otherwise established by
existing evidence”; that is, it is not enough to be simply corroborated


      8Romero   argues for the first time in his supplemental brief on
remand that Powell changed the basis of his opinion between the
two trials, by testifying at the first trial that he relied on the
“fingerprint” of the breech face of the gun on the cartridge and, at
the second trial, that he was referring to “shearing” caused by up-
and-down motion of the cartridge against the firing pin aperture at
the second trial. A review of the context of his testimony, however,
indicates he was referring to the same marks at both trials.


                                  11
                         STATE v. ROMERO
                         Opinion of the Court


by other evidence, and it cannot be the very issue in dispute. State v.
Bass, 198 Ariz. 571, ¶ 40, 12 P.3d 796, 806 (2000).

¶18          That Romero was able to impeach Powell using the
NAS report does not mean Haber’s opinions would have been
cumulative. For example, his proposed testimony provided context
for the report’s criticism of firearms identification methods,
explaining how the accuracy of the field could be challenged. Haber
also could have responded directly to statements made by Powell.
For example, at the conclusion of Powell’s testimony, a juror
submitted a question as to whether a different examiner with similar
training and experience would reach the same conclusion regarding
the shell casings, and Powell said he was “completely confident.”
Haber’s testimony would have addressed the scientific basis for that
confidence. Likewise, Haber would have been able to answer jury
questions. Ariz. R. Crim. P. 18.6(e). In this case, the expert
testimony would have augmented the cross-examination about the
report, rather than repeating it. Cf. State v. Ray, 123 Ariz. 171, 173 &
n.1, 598 P.2d 990, 992 & n.1 (1979) (erroneous admission of
preliminary hearing transcript not harmless where testimony
contained therein not cumulative).

Jury Instructions

¶19           Errors also may be vitiated or exacerbated by jury
instructions. See Weinstein § 103.41[5]; cf. State v. Schroeder, 167 Ariz.
47, 50-51, 804 P.2d 776, 780-81 (App. 1990) (expert’s improper
testimony regarding credibility of victim cured by court’s
admonition and instruction to jury regarding its role in determining
credibility). Here, the jury was instructed that it was “not bound by
any expert opinion,” and could choose how much weight to give the
opinion. Although this allowed the jury to choose not to credit
Powell’s testimony, we cannot say it either vitiated or exacerbated
the error caused by the preclusion of Haber’s testimony.

Jury Arguments

¶20      The effect of erroneous rulings may also be
compounded by reference to missing or improper evidence in


                                   12
                          STATE v. ROMERO
                          Opinion of the Court


arguments to the jury. See Mueller v. Hubbard Milling Co., 573 F.2d
1029, 1037 (8th Cir. 1978) (error not harmless where counsel
emphasized erroneously admitted evidence in closing argument);
see also State v. Watkins, 126 Ariz. 293, 299, 614 P.2d 835, 841 (1980)
(error harmless where erroneously admitted evidence not
mentioned in opening or closing arguments). Here, the prosecutor
argued, “[Y]ou cannot take [the criticisms in the National Academy
of Science book] as some kind of evidence, because there is no
evidence from this courtroom, from that witness stand that actually
challenges firearms analysis.” Although the argument was not
improper in view of the preclusion ruling, it highlights the fact that
the absence of direct evidence challenging Powell’s opinion was
sufficiently important to the state’s position that it argued to the jury
the NAS report should not be used to impeach Powell. We conclude
the state’s emphasis on the defendant’s lack of “witness stand”
evidence supporting the NAS report exacerbated the error of
Haber’s preclusion.

Prejudice

¶21          Prejudicial effect is implicit in all factors, but also stands
as a catch-all category when consideration of a particular factor
would not otherwise apply. Here, the preclusion of a defense
witness who would have challenged the testimony of the state’s
expert carried additional prejudice, because “‘science’ is often
accepted in our society as synonymous with truth.” Bible, 175 Ariz.
at 578, 858 P.2d at 1181, quoting 1 Morris K. Udall et al., Arizona
Practice: Law of Evidence § 102, at 212 (3d ed. 1991).

                      Summary and Disposition

¶22          Looking at “the trial record as a whole,” United States v.
Hasting, 461 U.S. 499, 509 (1983), the evidence of guilt was not
overwhelming, Haber’s testimony was not cumulative, no jury
instruction ameliorated the error, and the arguments to the jury
compounded the error. We cannot say beyond a reasonable doubt
that the preclusion of Haber’s testimony had no influence on the
jury’s verdict. Therefore, the error here was not harmless and we



                                    13
                         STATE v. ROMERO
                         Opinion of the Court


must reverse. Romero’s conviction and sentence are reversed, and
this case is remanded to the superior court for further proceedings.



E C K E R S T R O M, Chief Judge, concurring:

¶23          I join with Judge Miller’s opinion in every respect. I
write separately because I previously concluded that the trial court’s
error in precluding Dr. Haber’s testimony was harmless. Romero I,
236 Ariz. 451, ¶ 69, 341 P.3d at 511 (Eckerstrom, C.J., specially
concurring). And, as my dissenting colleague correctly notes, the
evidence in the case has not changed since I so reasoned.

¶24          However, in light of the supplemental briefing and
argument, I can no longer maintain that the jury’s verdict of guilt
“was surely unattributable to the error.” Leteve, 237 Ariz. 516, ¶ 25,
354 P.3d at 401, quoting Sullivan, 508 U.S. at 279. My original
reasoning, quoted at length in the dissent, overlooked that
Dr. Haber’s testimony, if allowed, could have caused a juror to
question the reliability of Mr. Powell’s testimony altogether. As an
able lawyer once wrote: “[I]t is better to be only sometimes right,
than at all times wrong, so soon as I discover my opinions to be
erroneous, I shall be ready to renounce them.” Abraham Lincoln,
Letter to the People of Sangamo County (Mar. 9, 1832), reprinted in
Abraham Lincoln: Speeches and Writings 1832-1858, at 1, 4-5 (Done E.
Fehrenbacher ed., 1989).



E S P I N O S A, Judge, dissenting:

¶25          I respectfully disagree with my colleagues for several
reasons. First, I believe Arizona’s existing legal framework for
evaluating harmless error, articulated by our supreme court in
numerous cases, provides appropriate and adequate standards for
resolving the legal issue remanded to us. See, e.g., State v. Valverde,
220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009); Anthony, 218 Ariz. 439,
¶ 39, 189 P.3d at 373; Bible, 175 Ariz. at 588, 858 P.2d at 1191; State v.
McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980). I therefore see no

                                   14
                         STATE v. ROMERO
                         Opinion of the Court


need for the fragmented harmless error analysis adopted by the
majority, particularly on the facts of this case.

¶26           The majority insists that it does not depart from our
supreme court’s established standards by employing its own multi-
factor approach in evaluating harmless error, but I question that
view and the necessity of such an approach here. Though Bible cited
Weinstein, it did so in support of its declaration that “[t]here is no
bright line statement of what is and what is not harmless error,” and
only noted generally that Weinstein “list[ed] factors courts examine
in determining whether error was harmless.” 175 Ariz. at 588, 858
P.2d at 1191. It did not, however, mention, let alone expressly
adopt, any of those factors. See id. Moreover, the court further
clarified that “[d]ue to th[e] case-specific factual inquiry [involved],
an error may be harmless in one case but require reversal in
another.” Id. In my view, the supreme court’s “broad statements”
are neither conclusory nor accidental; instead, it appears the court
has intentionally articulated flexible standards in order to account
for the great number of variables and factual considerations that
often arise in multifaceted criminal cases.

¶27           Second, I would conclude under either approach that
the state has established beyond a reasonable doubt that the
exclusion of Romero’s expert did not influence the jury’s verdict.
See Leteve, 237 Ariz. 516, ¶ 25, 354 P.3d at 401-02. As previously
stated by my colleague who specially concurred in our first decision
in this case:

             Notwithstanding the relevance of [the
             precluded]     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

                                  15
                       STATE v. ROMERO
                       Opinion of the Court


            crime. [He] 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.

Romero I, 236 Ariz. 451, ¶ 69, 341 P.3d at 511 (Eckerstrom, C.J.,
specially concurring). The evidence in this case has not changed
since those astute observations were made.

¶28           Third, viewed in its entirety, overwhelming evidence,
albeit circumstantial, supported Romero’s conviction, including
DNA linking him to the gun, as well as to the cell phone found on
the ground beside the victim; a billing address also linking him to
the phone; eye-witness testimony that immediately after the shots
were fired one of the murder party said, “damn it, Joe, or something
to that effect,” using Romero’s first name; and Romero’s possession
and, upon being followed by police, immediate disposal of a pistol
of the same caliber used in the shooting—another highly significant
link, even if the match between the gun and the shell casings at the
scene were not confirmed. Thus, as suggested in my colleague’s
previous concurrence, although the weight of one expert’s testimony
is disputed, “[t]he other evidence, points with unerring consistency
to one inarguable conclusion.” Bible, 175 Ariz. at 588, 858 P.2d at
1191.


                                16
                        STATE v. ROMERO
                        Opinion of the Court


¶29          The majority reasons that the evidence only linked
Romero to the scene, where at least two people were present, the
jury was not instructed on accomplice liability, and the match of the
gun to the shell casings was the strongest evidence Romero was the
one who pulled the trigger. However, King, cited by the majority,
does not say or suggest a jury cannot find guilt as an accomplice
unless so instructed, 226 Ariz. 253, ¶¶ 14-20, 245 P.3d at 943-44, and
a jury is not ordinarily required to state the basis for its verdict,
cf. State v. Hansen, 237 Ariz. 61, ¶¶ 20, 22, 345 P.3d 116, 123
(App. 2015) (noting courts do not second-guess jury’s verdicts nor
inquire into deliberative process; “[a] court must simply accept the
verdicts without probing into the jurors’ thought processes or
demanding adherence to its instructions”).

¶30          Here, a question from the jury during its deliberations
asked if Romero must have “pulled the trigger” to be convicted, to
which the trial court only referred the jury to the instructions
provided. The court later noted it had omitted an accomplice
instruction through oversight. See State v. Rhymes, 129 Ariz. 56, 60,
628 P.2d 939, 943 (1981) (accomplice to murder liable under A.R.S.
§ 13-303(A)(3) for substantive crime); State v. Rios, 217 Ariz.
249, ¶ 10, 172 P.3d 844, 846 (App. 2007) (accomplice with requisite
mental state “considered as liable as if he had personally committed
the offense”).

¶31           Finally, whether or not Romero might have been
convicted as an accomplice, once it was established that he was
present for the murder, additional evidence demonstrated his role as
a shooter: an eyewitness reported that “both” people he had seen
were shooting at the victim, and it is manifestly evident that Romero
did not just wait in the truck because his cell phone was found on
the ground beside the victim—Romero surely did not throw it out
the window at him, either before or after he was shot. None of these
facts or the other circumstantial evidence has any connection to the
reliability of the firearms testing, but all go to the “one inarguable
conclusion,” id., arrived at by the jury, that Romero was responsible
for the murder.




                                 17
                        STATE v. ROMERO
                        Opinion of the Court


¶32         Accordingly, applying our supreme court’s well-
established standards for harmless error to the issue and evidence
on remand, I would conclude beyond a reasonable doubt that the
exclusion of Romero’s proffered expert “had no influence on the
jury’s judgment,” Bible, 175 Ariz. at 588; “the guilty verdict actually
rendered in this trial was surely unattributable to the error,”
Anthony, 218 Ariz. 439, ¶ 39, 189 P.3d at 373; and for those reasons
would uphold Romero’s murder conviction.




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