State of Arizona v. Bryan Peter Foshay

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
BRYAN PETER FOSHAY,
Appellant.
No. 2 CA-CR 2014-0252
Filed March 23, 2016
Appeal from the Superior Court in Pima County
No. CR20124578001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender
By Frank P. Leto, Assistant Public Defender, Tucson
Counsel for Appellant
STATE v. FOSHAY
Opinion of the Court
OPINION
Presiding Judge Howard authored the opinion of the Court, in
which Judge Espinosa and Judge Staring concurred.
H O W A R D, Presiding Judge:
¶1 After a jury trial, Bryan Foshay was convicted of first-
degree murder. On appeal, he argues the trial court erred first by
allowing a toolmark expert, Rocky Edwards, to testify; second, by
allowing Edwards’s report to be admitted in its entirety; third, by
allowing Edwards to testify regarding another expert’s analysis; and
finally, by precluding evidence that the victim had previously sold
drugs and had methamphetamine in his system when he was killed.
Because the trial court did not err, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to
sustaining Foshay’s conviction. State v. Ortiz, 238 Ariz. 329, ¶ 2, 360
P.3d 125, 129 (App. 2015). The victim, B.B., was killed in his
apartment by a gunshot wound to the head. During the ensuing
investigation, police found that Foshay had exchanged electronic
messages with B.B. the night of the murder. These messages
suggested that Foshay and B.B. were involved in an illegal
enterprise at one point and that B.B. was involved with law
enforcement in some capacity, at the time of the text messages. In
one message, Foshay asked B.B. to open the door to his apartment
on the night of the murder. Based on these messages, police
obtained a warrant to search Foshay’s home. They found a .40
caliber weapon and some “Winchester PDX” ammunition as a result
of that search.
¶3 At trial, Edwards opined that the bullet which killed
B.B. was shot from Foshay’s gun. Foshay mounted a third-party-
culpability defense which centered on testimony that B.B. had been
pressured into providing information and testimony for law
enforcement. Foshay claimed that one of a number of other
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Opinion of the Court
individuals who had been engaged in the drug trade with B.B. had
killed him.
¶4 The jury rejected the defense’s theory of the case and, as
noted above, found Foshay guilty of first-degree murder. The trial
court sentenced him to a life term with the possibility of release after
twenty-five years. Foshay appealed from the judgment and
sentence. This court has jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1) and 13-4033(A)(1).
Daubert1 Analysis
¶5 Foshay first argues, on several related grounds, that the
trial court erred by admitting Edwards’s testimony which was based
in part on the use of three-dimensional (“3-D”) imaging software
and “confocal microscopic analysis.” 2 “We review a trial court’s
ruling to admit expert testimony for an abuse of discretion.” State v.
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993).
2Foshay also brought a general challenge to toolmark analysis,
which was similar to that considered and rejected by this court in
State v. Romero, 236 Ariz. 451, ¶ 20, 341 P.3d 493, 499 (App. 2014),
vacated on other grounds, ___ Ariz. ___, ¶ 31, 365 P.3d 358, 364 (2016).
That case was recently considered by the Arizona Supreme Court,
but it did not grant review on the general challenge to toolmark
analysis, and Foshay has abandoned this argument in his reply brief.
Romero, ___ Ariz. ___, ¶ 1, 365 P.3d at 360.
Foshay further mentions his constitutional right to a fair trial
under the Fourteenth Amendment to the United States Constitution
but does not develop any separate argument concerning it.
Therefore, any such argument is waived. See Ariz. R. Crim. P.
31.13(c)(1) (“The appellant’s brief shall include . . . [a]n argument
which shall contain the contentions of the appellant with respect to
the issues presented, and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on.”); State v.
Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (“Failure to argue
a claim on appeal constitutes waiver of that claim.”).
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Favela, 234 Ariz. 433, ¶ 4, 323 P.3d 716, 717 (App. 2014). In reviewing
a trial court’s ruling after a hearing on a motion to preclude expert
testimony, we consider only that evidence presented at the hearing,
viewing it in the light most favorable to upholding the order.
Cf. State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App. 2011)
(reviewing motion to suppress); see also State v. Huerstel, 206 Ariz. 93,
¶ 62, 75 P.3d 698, 712 (2003) (reviewing voluntariness of statement).
¶6 In order for expert witness testimony to be admissible,
the party proposing the testimony must show, inter alia, that first,
“the witness is qualified and [second, that] the expert’s ‘scientific,
technical, or other specialized knowledge will help the trier of fact to
understand the evidence.’” State v. Romero, ___ Ariz. ___, ¶ 12, 365
P.3d 358, 361 (2016), quoting Ariz. R. Evid. 702. The proponent must
also demonstrate that “the testimony is based on sufficient facts or
data; . . . the testimony is the product of reliable principles and
methods; . . . and the expert has reliably applied the principles and
methods to the facts of the case.” Ariz. R. Evid. 702. “Under Rule
702, a witness may be qualified based on ‘knowledge, skill,
experience, training, or education.’” Romero, ___ Ariz. ___, ¶ 17, 365
P.3d at 362, quoting Ariz. R. Evid. 702. “For a witness to be qualified
as an expert, he or she need only possess ‘skill and knowledge
superior to that of [people] in general.’” Id., quoting State v. Girdler,
138 Ariz. 482, 490, 675 P.2d 1301, 1309 (1983) (alteration in Romero).
¶7 The following facts were adduced at the Daubert
hearing. The Tucson Police Department (“TPD”) performed an
initial analysis of the weapon and ammunition found in Foshay’s
home. Using a standard comparison microscope and the six test-
fired bullets, the TPD analysts could not determine whether the
autopsy bullet recovered from B.B.’s body matched the weapon
found in Foshay’s home.
¶8 Foshay’s gun, the autopsy bullet, and the TPD “test
fires” were then sent to Rocky Edwards, a toolmark analysis expert
at the Santa Ana Police Department. Edwards conducted additional
test fires and obtained additional bullet samples. He also conducted
an analysis aided by a “confocal” microscope which utilizes 3-D
imaging. Edwards concluded that Foshay’s gun had fired the
autopsy bullet. Based on his analysis using both scopes, Edwards
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STATE v. FOSHAY
Opinion of the Court
found “areas of agreement” between the autopsy bullet and the test
fires he compared. But he emphasized that
an identification . . . has to be done with a
comparison microscope. That’s the only
standard that’s accepted in the United
States, and that’s the standard [he] used in
this case and in every case that [he had]
ever done in 3-D. So [the confocal
microscope was] only used as a
supplement, not used as the main scope.
The report and presentation that Edwards prepared in this case
“include[d] photographs both [from a] comparison microscope and
[a] confocal” microscope.
¶9 Foshay argues the trial court abused its discretion when
it found that Edwards was qualified to employ the 3-D imaging
software. As Foshay has conceded both at trial and on appeal,
Edwards is a qualified toolmark analyst. The court found
specifically that “using this 3-D confocal microscopy is just a new
tool to utilize the same principles.” And Edwards’s testimony
showed a working knowledge of how this technology functioned,
demonstrating he was qualified by knowledge and experience.
Ariz. R. Evid. 702; Romero, ___ Ariz. ___, ¶ 17, 365 P.3d at 362. Thus,
the court did not err when it found that Edwards was qualified to
testify as to his analyses aided by the new technology. See Romero,
___ Ariz. ___, ¶ 17, 365 P.3d at 362.
¶10 Foshay further argues the trial court erred in admitting
Edwards’s testimony because Edwards did not have personal
knowledge about how the 3-D mapping software functioned and,
thus, the state failed to present sufficient evidence to allow the court
to find the new methodology reliable. Rule 702 requires that expert
testimony be the product of reliable principles and methods and that
the expert has reliably applied the principles. Ariz. R. Evid. 702(c),
(d); see also State v. Romero, 236 Ariz. 451, ¶ 11, 341 P.3d 493, 497
(App. 2014), vacated on other grounds, ___ Ariz. ___, ¶ 31, 365 P.3d at
364. Arizona courts recognize five non-exclusive factors for
determining reliability:
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Opinion of the Court
(1) whether the expert’s theory or
technique can be or has been tested; (2)
whether the theory or technique has been
subjected to peer review and publication;
(3) whether the technique or theory is
generally accepted within the relevant
scientific community; (4) the known or
potential rate of error of the technique or
theory when applied; and (5) the existence
and maintenance of standards controlling
application of the technique.
State ex rel. Montgomery v. Miller, 234 Ariz. 289, ¶ 24, 321 P.3d 454,
464 (App. 2014).
¶11 As noted above, Edwards testified he made the match
with the traditional comparison microscope and that the confocal
microscope and 3-D imaging only allowed him to see a clearer
image. Accordingly, specific details on how the confocal microscope
and 3-D imaging software functioned were not relevant to whether
Edwards had applied reliable principles and methods.
¶12 Additionally, although Edwards conceded he was
unaware of how the software functioned and had only used this
technology four times, he was able to testify in some detail
regarding how the technology worked, its history, and a study about
the effectiveness of toolmark analyses conducted with this
technology. In this study, researchers attempted to validate the use
of 3-D systems by having 623 participants in thirty-five countries
analyze 600 rounds fired out of ten consecutively manufactured
weapons. Only two of the examiners could not make identifications,
and those examiners were relatively untrained. All other examiners
were able to make valid identifications.
¶13 Thus, the trial court reasonably could have found that
the 3-D imaging and confocal microscope methodology was testable,
was subjected to peer review, was generally accepted in the field,
and was studied sufficiently to establish known or potential rates of
error. Montgomery, 234 Ariz. 289, ¶ 24, 321 P.3d at 464. Accordingly,
6
STATE v. FOSHAY
Opinion of the Court
the 3-D imaging and confocal microscope methodology was capable
of passing Rule 702’s reliability test.3
¶14 In sum, Edwards testified the 3-D imaging and confocal
microscope merely enabled him to better see the marks which were
the basis of his analysis. And no evidence indicated that the
software and microscope somehow manipulated the image to allow
a match between bullets where none existed. Any issues concerning
the use of the 3-D imaging and confocal microscope were proper
subjects for cross-examination, but did not prevent admission of the
evidence. See Romero, ___ Ariz. ___, ¶ 27, 365 P.3d at 364 (“‘Cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.’”),
quoting State v. Bernstein, 237 Ariz. 226, ¶ 22, 349 P.3d 200, 205 (2015);
see also Ariz. R. Evid. 702 cmt. (2012). The trial court reasonably
could have found that Edwards reliably applied the principles and
methods of toolmark comparison under the facts of this case.
Admission of Edwards’s Report
¶15 Foshay next argues the trial court erred by admitting
Edwards’s written report and a corresponding “interactive CD”
because these materials are hearsay and contained Edwards’s
statement concerning his certainty as to his conclusion.4 The state
responds that Foshay failed to object adequately to the admission of
3 Edwards specifically testified there were no proficiency
testing standards for the 3-D analysis. But proficiency testing exists
for toolmark examination. And, even if the fifth factor was not met,
the trial court did not abuse its discretion by admitting this
testimony. Montgomery, 234 Ariz. 289, ¶ 25, 321 P.3d at 464 (“No
single Daubert factor is dispositive of the reliability of an expert’s
testimony.”).
4Foshayagain mentions his right to a fair trial under the Sixth
and Fourteenth Amendments without argument. This issue is
waived. See Ariz. R. Crim. P. 31.13(c)(1); Bolton, 182 Ariz. at 298, 896
P.2d at 838.
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Opinion of the Court
the report below, thereby forfeiting this argument for all but
fundamental error.
¶16 “A party must make a specific and timely objection at
trial to the admission of certain evidence in order to preserve that
issue for appeal.” State v. Hamilton, 177 Ariz. 403, 408, 868 P.2d 986,
991 (App. 1993); Ariz. R. Evid. 103(a). “[A]n objection to the
admission of evidence on one ground will not preserve issues
relating to the admission of that evidence on other grounds.” Id.¶17 In this case, when the state sought to admit the written
report, Foshay timely objected on the ground the report was
“cumulative.” When the state sought to admit the interactive CD,
Foshay objected on the same ground he had raised at the Daubert
hearing, which was relevance.
¶18 On appeal, Foshay has challenged the admission of the
report and CD, asserting that a report “prepared out of court is
generally inadmissible under [Rule 702]” and “is also hearsay,” and
that the report contained statements about Edwards’s certainty.
These arguments are based on different grounds from the objections
at trial. Thus, Foshay did not make a timely and specific objection at
the Daubert hearing or at trial on the same grounds as those argued
on appeal and he has thus forfeited these arguments. See State v.
Lopez, 217 Ariz. 433, ¶ 6, 175 P.3d 682, 684 (App. 2008); Hamilton, 177
Ariz. at 408, 868 P.2d at 991; see also Ariz. R. Evid. 103(a).
¶19 Foshay responds, however, that this line of reasoning
“ignores the particular objection made by defense counsel in his
written motion to preclude.” “Generally, a defendant preserves for
appeal any issues raised in a motion in limine and ruled upon
without the need for further objection at trial.” State v. Duran, 233
Ariz. 310, ¶ 7, 312 P.3d 109, 110 (2013).
¶20 In his motion to preclude Edwards’s testimony and
report, Foshay attempted to show that Edwards’s opinion was not
compliant with Rule 702’s requirements. The section of the motion
to which Foshay refers occurs before the “Argument” section and is
titled “Federal district courts have carefully scrutinized and limited
firearms identification evidence under the reliability criterion of
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STATE v. FOSHAY
Opinion of the Court
Daubert due to its lack of scientific foundation.” He noted that
federal courts had limited firearms identification evidence such that
some experts can only state their opinions “without any
characterization as to the degree of certainty.” United States v.
Willock, 696 F. Supp. 2d 536, 549 (D. Md. 2010).
¶21 Foshay did not argue that the report and CD, as
opposed to Edwards’s testimony, should be excluded on the basis
that Edwards expressed an elevated level of certainty about his
conclusions and he did not request that limitation in his request for
relief. Further, Foshay did not argue in the motion to preclude, as
he does in his opening brief, that the written report of an expert is
generally inadmissible or that his report was hearsay. Thus, while
Foshay did request that the trial court exclude the report and CD, he
did so on different grounds.
¶22 Foshay’s objection did not “give[] the [trial] court an
opportunity to correct any error and allow[] opposing counsel a
chance to ‘obviate the objection.’” Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d
at 683, quoting State v. Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d 50, 56
(2003). Consequently, Foshay has forfeited his arguments on appeal,
and we review only for fundamental error. Hamilton, 177 Ariz. at
408, 868 P.2d at 991; State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d
601, 607 (2005).
¶23 To prevail under fundamental error review, “a
defendant must establish both that fundamental error exists and that
the error in his case caused him prejudice.” Id. ¶ 20. Fundamental
error review “involves a fact-intensive inquiry” and the “showing a
defendant must make varies.” Id. ¶ 26. To establish prejudice, “a
defendant must show that, but for the error, a reasonable fact-finder
‘could have reached a different result.’” See State v. Joyner, 215 Ariz.
134, ¶ 31, 158 P.3d 263, 273 (App. 2007), quoting Henderson, 210 Ariz.
561, ¶ 27, 115 P.3d at 609.
¶24 We need not determine whether the admission of the
report constituted fundamental error because Foshay cannot show
prejudice. He argues that admission of the report and CD
prejudiced him because the written report “went much further” than
Edwards’s oral testimony about his certainty that the bullets
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Opinion of the Court
matched Foshay’s weapon. In the report, Edwards explained “the
likelihood that another firearm could have produced these marks is
so remote as to be considered a practical impossibility.” At trial,
Edwards testified “the autopsy bullet was fired by the Ruger pistol
that was submitted for examination.” No evidence suggested it
came from any other weapon. The difference between Edwards’s
testimony at trial and his statement in the report would not have
made a practical difference to the jury.
¶25 Foshay also claims admitting the written report
reinforced Edwards’s testimony. But the report was largely
repetitive of Edwards’s trial testimony and Foshay has not shown
how he was prejudiced. Assuming admission of the reports was
both error and fundamental, under either or both grounds argued
here, the jury would have still found Foshay guilty in the absence of
the reports. Foshay was not prejudiced.
Testimony Regarding Ward’s Opinion
¶26 Foshay next argues the trial court violated his rights
under the Confrontation Clause by admitting Edwards’s testimony
regarding Troy Ward, a toolmark examiner who confirmed
Edwards’s opinion. 5 He also claims that Ward’s opinion should
have been excluded as hearsay. Foshay further argues the trial court
erred in denying his motion for a new trial on the same ground.
¶27 The state contends Foshay did not properly object to
this portion of Edwards’s testimony, and thus Foshay’s argument is
forfeited for all but fundamental error, pursuant to Henderson, 210
Ariz. 561, ¶ 19, 115 P.3d at 607. Although Foshay’s counsel failed to
use the word “object” or the phrase “Confrontation Clause,” a
specific word is not required to make an objection or to preserve an
issue for appeal. See Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d at 56 (“‘The
purpose of an objection is to permit the trial court to rectify possible
5 Foshay again mentions his right to a fair trial under the
Fourteenth Amendment without argument. This issue is waived.
See Ariz. R. Crim. P. 31.13(c)(1); Bolton, 182 Ariz. at 298, 896 P.2d at
838.
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Opinion of the Court
error, and to enable the opposition to obviate the objection if
possible.’”), quoting State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898,
901 (1955).
¶28 Here, Foshay objected to Edwards’s testimony
regarding Ward’s analysis on the ground that his testimony was
hearsay and also claiming that Foshay had “no way to confront that
person at this point.” Thus, he effectively objected to the instruction
below, and we will review the merits of his claim. See Henderson, 210
Ariz. 561, ¶ 18, 115 P.3d at 607 (where defendant objected below,
burden is on state to prove harmless error).
¶29 We review “‘challenges to admissibility based on the
Confrontation Clause’” de novo. Ortiz, 238 Ariz. 329, ¶ 27, 360 P.3d
at 133, quoting State v. Bennett, 216 Ariz. 15, ¶ 4, 162 P.3d 654, 656
(App. 2007). “We review a trial court’s ruling on the admissibility of
evidence for a clear abuse of discretion.” State v. King, 213 Ariz. 632,
¶ 7, 146 P.3d 1274, 1277 (App. 2006).
¶30 The Sixth Amendment “‘prohibits the introduction of
testimonial statements by a nontestifying witness.’” Ortiz, 238 Ariz.
329, ¶ 31, 360 P.3d at 133, quoting Ohio v. Clark, ___ U.S. ___, ___, 135
S. Ct. 2173, 2179 (2015). “Testimonial evidence is ‘ex parte in-court
testimony or its functional equivalent . . . such as affidavits,
custodial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially.’” Id.,quoting State v. Medina, 232 Ariz. 391, ¶ 54, 306 P.3d 48, 62 (2013)
(alteration in Ortiz). “Yet, testimony that is not admitted to prove its
truth is not hearsay and does not violate the Confrontation Clause.”
State v. Tucker, 215 Ariz. 298, ¶ 61, 160 P.3d 177, 194 (2007), Crawford
v. Washington, 541 U.S. 36, 59 n.9 (2004) (“The [Confrontation] Clause
also does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.”); see also
Williams v. Illinois, ___ U.S. ___, ___, 132 S. Ct. 2221, 2261 (2012)
(Thomas, J. concurring) (identifying primary purpose test and
solemnity test).
¶31 “A testifying expert may rely on the opinions of other
experts if such reliance is ‘the kind of material on which experts in
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Opinion of the Court
the field base their opinions.’” State v. Lundstrom, 161 Ariz. 141, 147,
776 P.2d 1067, 1073 (1989), quoting Lewis v. Rego, 757 F.2d 66, 74 (3d
Cir. 1985). That expert may then, in turn, “testify as to the substance
of another expert’s opinion if the testifying expert reasonably relied
on that other opinion in forming his own opinion.” Id. at 148, 776
P.2d at 1074. The other expert’s opinion can be admitted as non-
hearsay because it is admissible for the limited purpose of showing
the bases of the testifying expert’s opinion. Id.¶32 Edwards testified that Ward, an examiner from the
Long Beach Police Department, did a second examination and
technical review of Edwards’s toolmark analysis. Edwards
explained that toolmark analyses typically are subjected to “peer
review by another qualified firearms examiner.” He further
described how the normal procedure for his analysis required that,
once he had found sufficient agreement between the autopsy bullet
and the test fires, he would provide his report to another examiner
who would perform a second examination. See also United States v.
Monteiro, 407 F. Supp. 2d 351, 368-69 (D. Mass 2006) (it is “the
standard in the field to have a second examiner independently
review the findings of the first examiner”). If the second expert
came to the same conclusion as Edwards, it would allow Edwards to
conclude his findings were accurate.
¶33 Thus, because peer review is part of the toolmark
analysis process, Ward’s opinion was offered only as a basis for
Edwards’s testimony and not to prove the truth of that opinion. See
Lundstrom, 161 Ariz. at 147, 776 P.2d at 1073. And Ward’s opinion
did not have the solemnity associated with trial testimony. Williams,
___ U.S. at ___, 132 S. Ct. at 2260 (Thomas, J. concurring). Edwards’s
statement about Ward’s opinion is therefore not hearsay, see Tucker,
215 Ariz. 298, ¶ 60, 160 P.3d at 194, and is not barred by the
Confrontation Clause, see Williams, ___ U.S. at ___, 132 S. Ct. at 2260(Thomas, J. concurring); see also Crawford, 541 U.S. at 59 n.9.
Accordingly, the trial court did not err when it admitted Edwards’s
testimony regarding Ward’s opinion.
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Opinion of the Court
Preclusion of Evidence of Victim’s Drug Use
¶34 Finally, Foshay argues the trial court erred by
precluding evidence that victim B.B.’s autopsy toxicology report had
indicated the presence of methamphetamine and that B.B. had been
previously involved in a drug sale. He argues that admitting such
evidence would “help establish the defense theory that someone
other than [Foshay] had motive and opportunity to commit the
offense.”6 As mentioned above, “[w]e review a trial court’s ruling
on the admissibility of evidence for a clear abuse of discretion,”
King, 213 Ariz. 632, ¶ 7, 146 P.3d at 1277, but, constitutional
violations are reviewed de novo, Fragoso v. Fell, 210 Ariz. 427, ¶ 13,
111 P.3d 1027, 1032 (App. 2005).
¶35 Irrelevant evidence is inadmissible. Ariz. R. Evid. 402.
Relevant evidence is that which has “‘any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence’” and “[t]he standard of relevance is not particularly
high.” State v. Fish, 222 Ariz. 109, ¶ 48, 213 P.3d 258, 274 (App.
2009), quoting Ariz. R. Evid. 401. Relevant evidence can be
inadmissible if “its probative value is substantially outweighed by a
danger of . . . unfair prejudice.” Ariz. R. Evid. 403. “Because the
trial court is best situated to conduct the Rule 403 balance, we will
reverse its ruling only for abuse of discretion.” State v. Cañez, 202
Ariz. 133, ¶ 61, 42 P.3d 564, 584 (2002).
¶36 Criminal defendants are constitutionally guaranteed “‘a
meaningful opportunity to present a complete defense.’” State v.
Machado, 224 Ariz. 343, ¶ 12, 230 P.3d 1158, 1166 (App. 2010), quoting
Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986),
6Foshay also argues that this evidence would tend to show
B.B. “was a risk taker, rebutting the State’s theory that [B.B.] opened
the door to Bryan Foshay” and that B.B. was “a risk taker who
engaged in drug sales and thus may have opened the door to
someone other than Bryan Foshay.” Because Foshay did not raise
this risk-taker justification in his argument below, it is forfeited.
See Hamilton, 177 Ariz. at 408, 868 P.2d at 991; Ariz. R. Evid. 103(a).
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abrogation on other grounds as recognized by State v. Nottingham, 231
Ariz. 21, n.4, 289 P.3d 949, 954 n.4 (App. 2012). A defendant’s
defense “generally must comply” with the rules of evidence, but
those rules “‘may not be applied mechanistically to defeat the ends
of justice.’” Id. ¶ 13, quoting Chambers v. Mississippi, 410 U.S. 284, 302
(1973). The right to conduct a complete defense includes the right to
cross-examine witnesses. State v. Abdi, 226 Ariz. 361, ¶ 27, 248 P.3d
209, 216 (App. 2007). That right, however, “must be kept within
reasonable bounds” and the test for reasonableness is “whether the
defendant has been denied the opportunity of presenting to the trier
of fact information which bears either on the issues in the case or on
the credibility of the witness.” State v. Fleming, 117 Ariz. 122, 125,
571 P.2d 268, 271 (1977).
¶37 Before trial, the state moved to preclude evidence that
B.B. had been involved in a hand-to-hand drug sale,7 arguing it was
irrelevant because it took place two years before B.B.’s murder and
was not connected to the murder. The state also contended the
evidence was more prejudicial than probative under Rule 403.
Foshay, who did not file a written response, argued the drug sale
was relevant because it explained why B.B. would be motivated to
work as a confidential informant. The court did not admit the
evidence of the prior drug sale although evidence that B.B. was an
informant was admitted.
¶38 At trial, Foshay cross-examined David Winston, the
medical examiner who conducted B.B.’s autopsy, and attempted to
elicit testimony regarding the presence of methamphetamine in the
autopsy results. The state’s attorney objected on relevance grounds.
Foshay argued the evidence was relevant to a third-party-culpability
defense, suggesting the victim’s drug use indicated other
individuals might be willing to kill him. The trial court ruled the
proposed testimony was both irrelevant and highly prejudicial.
¶39 The trial court was correct in concluding this evidence
was irrelevant. As opposed to the fact that he had worked as an
7 We note that significant other evidence was introduced at
trial regarding B.B.’s involvement with the drug trade.
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Opinion of the Court
informant, B.B.’s motivation to do so did not make it more likely
that someone other than Foshay had killed him. And Foshay has
not shown any connection between B.B.’s use of methamphetamine
before his death and anyone’s desire to kill him. As the court noted,
the use of methamphetamine and the sale of drugs two years before
his death do not tend to make it more likely that someone other than
Foshay murdered B.B. See Ariz. R. Evid. 401. The court did not
abuse its discretion in excluding this evidence.
¶40 The trial court also correctly found that the probative
value of the victim’s personal drug use or remote participation in a
drug sale did not outweigh the prejudicial effect. See Cañez, 202
Ariz. 133, ¶ 61, 42 P.3d at 584. Such evidence is not sufficiently
probative of third-party culpability to outweigh the prejudice of
portraying B.B. as a drug dealer and user. See Ariz. R. Evid. 403.
¶41 Finally, Foshay’s right to conduct a complete defense
and cross-examination was not implicated by the exclusion of this
evidence. In light of the evidence that was ruled admissible at trial,
Foshay was not denied “the opportunity of presenting to the trier of
fact information which bears either on the issues in the case or on
the credibility of the witness.” Fleming, 117 Ariz. at 125, 571 P.2d at
271. The exclusion of irrelevant and prejudicial evidence is not a
mechanistic application of the rules of evidence. See Machado, 224
Ariz. 343, ¶ 13, 230 P.3d at 1166.
Disposition
¶42 Based on the foregoing, we affirm Foshay’s conviction
and sentence.
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