State v. Lucero

85 P.3d 1059

207 Ariz. 301

STATE of Arizona, Appellee, v. Ronald Michael LUCERO, Appellant.

No. -0739.

Court of Appeals of Arizona, Division 1, Department B.

March 23, 2004.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Alan L. Amann, Assistant Attorney General, Phoenix Attorneys for Appellee.

Susan Sherwin, Maricopa County Legal Advocate By Tennie B. Martin, Deputy Legal Advocate, Phoenix Attorneys for Appellant.

OPINION

LANKFORD, Judge.

¶ 1 Defendant Ronald M. Lucero timely appeals his sentences and convictions for aggravated assault, possession of marijuana and drug paraphernalia, and four counts of endangerment.

¶ 2 This appeal raises three issues. Two issues concern the admissibility of evidence under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). We must decide whether a Frye hearing was required before admitting scientific evidence based on gas chromatography/mass spectrometry ("GC/MS").¹ We must also determine whether a Frye hearing was necessary before allowing an expert to testify that, in his opinion, marijuana impaired Defendant at the time of the accident. Finally, we decide whether a jury instruction unconstitutionally shifted the burden of proof to Defendant.

¶ 3 The charges against Defendant arose out of a collision between the vehicle Defendant was driving and another vehicle. Defendant had failed to yield the right of way. The State alleged that Defendant's use of marijuana had impaired his ability to drive. A jury convicted Defendant on all counts.

¶ 4 The State introduced evidence of Defendant's impairment in part through the testimony of Raymond Kelly, a forensic toxicologist with a Ph.D. in chemistry. Dr. Kelly testified about the results of GC/MS tests performed on blood and urine samples taken from Defendant after the collision.² Defendant's blood tested positive for tetrahydrocannabinol ("THC"),³ the active component in marijuana, and for metabolites of THC.⁴ Defendant's urine also tested positive for a metabolite of THC. THC is a central nervous system depressant.

¶ 5 Defendant requested a pretrial Frye hearing. He challenged the admissibility of the GC/MS tests and Dr. Kelly's opinion testimony regarding Defendant's alleged impairment. Defendant argued that the testing methods were "faulty," and produced a scientific journal article to support this contention.⁵ Defendant also argued that no scientific evidence demonstrated that his ability to drive safely had been impaired by the levels of THC found in Defendant's system. The superior court denied the motion, held no Frye hearing, and at trial admitted the evidence.

¶ 6 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (2001). We affirm because the superior court did not err in admitting the evidence or in instructing the jury.

¶ 7 The evidence of the GC/MS test results were not subject to a Frye hearing. This scientific method is not novel. It has long been not only generally accepted, but praised for its accuracy.

¶ 8 The admissibility of certain scientific evidence in Arizona is determined by the Frye standard. Logerquist v. McVey, 196 Ariz. 470, 490, ¶ 62, 1 P.3d 113, 133 (2000). Frye requires that the scientific principles and the techniques of their application be shown to be "generally accepted in the relevant scientific community" before first being accepted as evidence. State v. Bible, 175 Ariz. 549, 578, 858 P.2d 1152, 1181 (1993).

¶ 9 A Frye hearing is not required every time scientific evidence is offered. A Frye determination is required only for new, novel or experimental scientific evidence. Logerquist, 196 Ariz. at 475, ¶ 19, 1 P.3d at 118; State v. Varela, 178 Ariz. 319, 325-26, 873 P.2d 657, 663-64 (App.1993). It is therefore not necessary to subject evidence to a Frye analysis if the evidence does not rely on novel scientific principles or techniques. Varela, 178 Ariz. at 325-26, 873 P.2d at 663-64. We review the decision on whether to hold a hearing pursuant to Frye for an abuse of discretion. Id. at 326, 873 P.2d at 664.

¶ 10 Although no Arizona cases declare explicitly that GC/MS results are admissible, GC/MS technology has long been accepted by the courts and used by scientists as a standard analytic method. More than a decade ago, we noted that the reported accuracy rate of this method in drug detection is 99.99 percent and that it was a standard drug testing procedure. Weller, 176 Ariz. at 222, 225, 860 P.2d at 489, 492. In fact, the GC/MS method has been used to test for drugs since the 1960s. State v. Sercey, 825 So.2d 959, 961 n. 1 (Fla.Dist.Ct.App.2002) (citations omitted). The method is so widely accepted that even the article relied upon by Defendant in this case states that "[m]ost toxicologists consider GC/MS as the `gold standard' for forensic testing...."⁶ Test results obtained by this method are widely admitted by courts.⁷

¶ 11 Defendant nevertheless challenged the evidence based on GC/MS analysis, requesting a Frye hearing to determine its admissibility. The absence of a reported Arizona opinion expressly approving this scientific method does not confer an automatic right to a hearing. Evidence relying on this method has long been admitted in Arizona courts and has been accepted in the scientific community for drug testing even longer. "By its own words, Frye applies to the use of novel scientific theories or processes to produce results." Logerquist, 196 Ariz. at 475, ¶ 19, 1 P.3d at 118 (emphasis added). Defendant only attacked the validity of GC/MS testing; he did not argue that it was a novel method of scientific analysis. On the contrary, Defendant conceded that the method is not new. As a result, no separate pretrial Frye hearing was required. State v. Morgan, 204 Ariz. 166, 174, ¶ 32, 61 P.3d 460, 468 (App.2002).

¶ 12 This is not to say that, once admitted, scientific evidence is forever after unassailably admissible. After all, some theories once generally accepted ultimately have been rejected in favor of new ones. Quantum physics, for example, has changed scientists' understanding of the nature of energy and matter, including Einsteinian theories which in turn had challenged earlier Newtonian ideas. In a perhaps more vivid example, Ptolemy's idea that the sun revolves around the Earth held sway for centuries, until Nicolaus Copernicus and Galileo Galilei demonstrated otherwise.

¶ 13 But Defendant's challenge of the scientific method's accuracy falls far short of such a shift in scientific archetypes. To earn the right to a Frye hearing on previously accepted scientific evidence, the party opposing its admissibility must preliminarily demonstrate that the method "is no longer accorded general scientific acceptance." State v. Esser, 205 Ariz. 320, 324, ¶ 11, 70 P.3d 449, 453 (App.2003).⁸ See generally Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 Tex. L.Rev. 715 (1994) (discussing means of establishing scientific acceptance). Cf. State v. Harris, 152 Ariz. 150, 152, 730 P.2d 859, 861 (App.1986) (to be entitled to a Frye hearing, a party opposing the scientific method must be "supported by authorities indicating that there may not be general scientific acceptance of the technique employed."). In Esser, we said that it is not enough to produce scientific opinion challenging the accuracy of the evidence. 205 Ariz. at 324, ¶ 12, 70 P.3d at 453. "The question is not whether the scientific community has concluded that the scientific principle or process is absolutely perfect, but whether the principle or process is generally accepted to be capable of doing what it purports to do." Id. (internal quotations and citation omitted).

¶ 14 Defendant's attack on GC/MS did no more than demonstrate that test procedures or interpretation of test results can be faulty.⁹ But these are not Frye issues, because they relate to the application of the science and not its validity. And any argument that the scientific method is not infallible goes to weight, not admissibility. See Esser, 205 Ariz. at 324, ¶ 13, 70 P.3d at 453 (challenge to accuracy of breath alcohol testing device goes to weight of test results, not admissibility under Frye).

¶ 15 In summary, the superior court was not required to conduct a Frye hearing. Neither the absence of prior approval of GC/MS in reported Arizona opinions nor Defendant's attack necessitated a Frye hearing. Defendant failed to show either that the challenged evidence was a novel scientific method or was a formerly accepted method newly fallen into disrepute in the scientific community.

¶ 16 Defendant's second evidentiary challenge focuses on Dr. Kelly's opinion testimony. Dr. Kelly testified that, in his opinion, Defendant was impaired by marijuana at the time of the collision. Defendant argues that a Frye hearing was required to admit this opinion evidence.

¶ 17 A Frye hearing was not required to admit opinion evidence of this nature. Dr. Kelly opined that the levels of THC or its metabolites found in Defendant's body signify impairment of his ability to drive a motor vehicle safely. His testimony relied on no novel scientific principles. Instead, he provided an opinion based on his knowledge and experience as a forensic toxicologist. Such testimony is subject not to Frye, but to the general rules of admissibility regarding expert opinion evidence.

The admissibility of such testimony, if challenged, is governed by the Arizona Rules of Evidence including Rule 702 (testimony must assist trier of fact), Rule 703 (data upon which expert bases opinion must be of "a type reasonably relied upon by experts in the particular field"), and Rule 403 (Relevant evidence may be excluded if its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.").

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