State v. Kerr

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ANDREW JAMES KERR, Appellant.

No. 1 CA-CR 24-0167
FILED 07-15-2025

Appeal from the Superior Court in Maricopa County
No. CR2018-101721-001
The Honorable Michael C. Blair, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
 STATE v. KERR
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 The defendant, Andrew James Kerr, appeals his conviction
and sentence for second-degree murder. We affirm Kerr’s conviction
because he shows no prejudice on fundamental error review for an alleged
constitutional violation, and the record does not show that the jury
considered improper exhibits. We vacate his sentence and remand for
resentencing because it is not clear whether the superior court considered
its available options within the sentencing range.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 The State indicted Kerr for the second-degree murder of Irene
East (a pseudonym). Kerr pled not guilty, and the case proceeded to a jury
trial where the State presented evidence of these facts.

¶3 Kerr and East met through an online dating app and later met
in person. On January 8, 2018, at around 7:00 a.m., the two exchanged texts
as Kerr sat in his car in the hotel parking lot where East was staying with
her cousin. East told Kerr that he could not come to her hotel room until her
cousin left later in the morning. Kerr replied that he would “pull up” when
East let him know her cousin was gone.

¶4 East’s cousin left the hotel room at around 10:00 a.m. East
immediately texted Kerr, asking him to call her as soon as possible. Kerr
opened this message at around 10:30 a.m. and replied that he had just
woken up. About 15 minutes later, security cameras recorded a car that
matched Kerr’s car parking at the hotel. A man got out of the car and
entered the hotel. Several hours later, at around 1:00 p.m., the man left the
hotel and drove away in the car. Location data showed Kerr’s phone at the
hotel during the time the car was parked there.

1 We view the facts in the light most favorable to affirming. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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¶5 East’s cousin tried calling her from work on her lunch break,
but East did not answer. When the cousin returned to the hotel room at
around 5:30 p.m., her key card did not work. She called East and heard the
phone ringing inside the room, but East did not come to the door. The
cousin got a new key card from the front desk and opened the door to find
East dead on the floor, cold to the touch, with blood on her mouth and the
floor.

¶6 A medical examiner determined that East died from a
steep-angle gunshot wound through her chest. Law enforcement found a
fired bullet caught in her shirt and a spent .9 mm casing on the floor. In a
later search of Kerr’s car, they found a loaded .9 mm handgun Kerr had
bought, two other casings, and a backpack consistent with that carried by
the man in the security footage. Forensic testing matched Kerr’s gun to the
bullet and casing found in the hotel room. And at Kerr’s apartment, where
he appeared to live alone, law enforcement found a box of .9 mm
ammunition consistent with the casing from the hotel room. They also
found the store display card for Kerr’s gun, clothing consistent with that
worn by the man in the hotel security footage, and a journal in which the
writer expressed unhappiness and anger about women.

¶7 Kerr told a detective he had never visited the hotel and did
not know East. He also denied knowing the make and model of his car. He
said he was not sure what type of gun he owned, did not know how to load
it, and had never fired it.

¶8 At the trial, a forensic scientist from the Department of Public
Safety Crime Lab testified that East’s hand bore Kerr’s DNA. The scientist
acknowledged that other analysts at the lab had examined the packaging of
the source items and generated the DNA profiles for her analysis.

¶9 The jury convicted Kerr of second-degree murder with two
aggravators, and the court found no mitigators and sentenced him to the
maximum 25-year prison term. Kerr appealed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21, 13-4031, and 13-4033(A).

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DISCUSSION

A. The Forensic Scientist’s Testimony Did Not Prejudice Kerr.

¶10 Kerr contends that the forensic scientist’s testimony violated
his rights under the Sixth Amendment’s Confrontation Clause because
others assessed the samples’ integrity and identified the DNA profiles.

¶11 The Confrontation Clause ensures that a criminal defendant
has “the right . . . to be confronted with the witnesses against him.”2 U.S.
Const. amend. VI. It “bars the admission at trial of testimonial statements
of an absent witness unless she is unavailable to testify, and the defendant
has had a prior opportunity to cross-examine her.” Smith v. Arizona, 602 U.S.
779, 783 (2024) (quotation modified). It applies only to statements that are
both (1) hearsay and (2) testimonial. Id. at 784-85. The Supreme Court
recently held in Smith that the hearsay prong was satisfied when a
substitute expert relayed the original expert’s records and thereby
“effectively became [the original expert]’s mouthpiece.” Id. at 790-91, 800.
The Court held that “[w]hen an expert conveys an absent analyst’s
statements in support of his opinion, and the statements provide that
support only if true, then the statements come into evidence for their truth.”
Id. at 783. And “that will generally be the case when an expert relays an
absent lab analyst’s statements as part of offering his opinion.” Id.

¶12 The case before us involves not a substitute expert but an
expert who relied on her colleagues’ preparatory work—i.e., their
inspection of the samples and packaging, and their generation and
identification of DNA profiles—to make her comparisons and form her
opinions. She explained that her lab takes “a team approach” where she
sometimes “jump[s] in the middle” of lab work after reviewing others’
work records (which also undergo a separate technical and administrative
review process). These facts differ from those of Smith and may well present
a novel issue. See 602 U.S. at 789-91.

¶13 But the State does not ask us to distinguish Smith’s hearsay
analysis. Nor does the State argue that the statements were non-testimonial,

2 Article 2, Section 24, of the Arizona Constitution is functionally
identical. See State v. Aragon, 258 Ariz. 218, 220, ¶ 10 (App. 2024) (Article 2,
Section 24, which guarantees criminal defendants “the right . . . to meet the
witnesses against him face to face,” is coextensive with the Confrontation
Clause.).

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despite the question left open in Smith. See 602 U.S. at 784 (“‘[T]estimonial
statements[]’ [is] a category whose contours we have variously
described.”); compare id. at 800-01 with id. at 804 (Thomas, J., concurring in
part) & id. at 806-07 (Gorsuch, J., concurring in part) (Concurring Justices in
Smith questioned the propriety of the opinion’s non-dispositive description
of the “primary purpose” test for determining whether a statement is
testimonial.). The State does not address Kerr’s extensive arguments that
his confrontation rights were violated, and instead argues only that even
assuming error, Kerr was not prejudiced. We therefore consider the State to
have confessed error. See Hecla Mining Co. v. Indus. Comm’n, 119 Ariz. 313,
314 (App. 1978). Although accepting that confession of error, we express no
opinion on the claim’s merits.

¶14 We move instead to the parties’ dispute about whether,
assuming error, Kerr must prove prejudice. Kerr did not object to the
expert’s testimony at trial. A defendant’s failure to object to trial error
typically limits our review to fundamental error. State v. Henderson, 210
Ariz. 561, 567, ¶¶ 19-20 (2005). Fundamental error review means the
defendant must prove not only that fundamental error exists but also that
it prejudiced him or her. Id. Kerr argues that because his trial pre-dated
Smith, he could not have objected on Confrontation Clause grounds and
should be relieved of the burden to show prejudice.

¶15 We do not foreclose the possibility that a post-trial change in
the law may excuse a defendant’s failure to object. In other contexts, our
supreme court has explained that a party’s inaction should not impede his
or her opportunity to obtain relief based on novel, non-foreseeable changes
in the law. See State v. Goodyear, 100 Ariz. 244, 247 (1966) (The rule that a
failure to object waived all appellate review did not apply to “place an
unreasonable burden on defendants to anticipate unforeseen changes in the
law” and make objections that “would have been futile.” (quotations
omitted)); State v. Holder, 155 Ariz. 83, 86 (1987) (In federal habeas corpus
cases involving fully retroactive constitutional principles, a defendant may
be excused for failing to raise a claim “so novel that its legal basis is not
reasonably available to counsel.” (quotation omitted)). Here, however,
Kerr’s assertion that he could not reasonably have objected before Smith’s
publication is unavailing. Smith was not an abrupt or unforeseeable
departure from unassailable principles—it was, by its own description, a
resolution of a “muddle” of “confusion in courts across the country about
the Confrontation Clause’s application to expert opinion testimony.” 602
U.S. at 789 (quotation omitted). In other words, Smith resolved a debatable
question that Kerr reasonably could have raised. It was not an
unpredictable blindside. Smith’s post-trial publication does not relieve Kerr

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from the normal consequence of failing to make a timely trial objection. See
State v. Fordson, 258 Ariz. 167, 171-72, ¶¶ 17-18 (App. 2024) (Fundamental
error review applied to an appellate challenge under Smith when the
defendant made no Confrontation Clause objection at the pre-Smith trial.).

¶16 Thus, Kerr must show prejudice to prevail on appeal. See
Henderson, 210 Ariz. at 567, ¶¶ 19-20. Prejudice is a fact-dependent inquiry
unless the error is so egregious that the defendant could not possibly have
received a fair trial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). The
defendant must show that, without the erroneously admitted evidence, a
jury could have reasonably reached a different verdict based on the
evidence and arguments. Id. at 144, ¶¶ 29-31. The strength of the State’s
proper evidence is relevant to the analysis. Id. at 144-45, ¶ 34.

¶17 We have no difficulty concluding that Kerr fails to show
prejudice. Even without the DNA evidence, no jury could have reasonably
failed to convict Kerr. Evidence showed that he had a relationship with East
and met her alone in her hotel room the day she died from a bullet fired
from his gun, which he then kept in his car. Kerr lied about the gun, his
relationship with East, and his whereabouts on the day of her death. No
evidence or argument suggested that anyone other than Kerr could have
been responsible for East’s death or that her death stemmed from anything
besides murder. On this record, Kerr would not prevail even under a
harmless error standard, much less under a fundamental error standard.
See State v. Bible, 175 Ariz. 549, 588-89 (1993) (The erroneous admission of
DNA probability calculations was harmless because the properly admitted
evidence went “far beyond overwhelming evidence of [the defendant’s]
guilt” of murder, “refut[ing] any hypothesis other than [his] guilt” and
“point[ing] with unerring consistency to one inarguable conclusion” of
guilt.). Even assuming a Confrontation Clause violation, Kerr is not entitled
to relief.

B. The Record About Allegedly Improper Exhibits Does Not Permit
Review.

¶18 Kerr next contends that the jury improperly received two
exhibits not admitted at trial. He points to the court’s exhibit records. The
court’s exhibit worksheet reflects that Exhibits 172 (listed as “Photo”) and
278 (listed as “CD in envelope labeled Ramada Surveillance redacted
0600-1000”) were not admitted into evidence. The court’s tracking log and
release form, however, reflect that those exhibits were given to the jurors
and not returned to the State until after the verdict.

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¶19 Kerr did not challenge the exhibits until his appeal, arguing
that he could not do so earlier. To be sure, his opportunity to object to the
alleged error was limited—the court’s records were not filed until the day
he was sentenced, well after the deadline for seeking a new trial under
Arizona Rule of Criminal Procedure 24.1(b). But his failure to develop the
record precludes our review.

¶20 We will not reverse a conviction based on speculation or
unsupported inference. State v. Diaz, 223 Ariz. 358, 361, ¶ 13 (2010). Rather,
errors must affirmatively appear in the record. Id. It is the appellant’s
burden to ensure that the record on appeal contains all necessary
information for us to consider the issues raised. Blair v. Burgener, 226 Ariz.
213, 217, ¶ 9 (App. 2010). This burden exists because, without a complete
record, we cannot determine the validity of an appellant’s arguments.
Matter of Colton P., 242 Ariz. 437, 439, ¶ 11 (App. 2017).

¶21 The record on appeal generally consists of all documents filed
in the superior court, including minute entries, exhibit lists, transcripts, and
other items. Ariz. R. Crim. P. 31.8(a)(1)(A). If the record is incomplete or
misstated, the superior or appellate courts may direct corrections or
additions. Ariz. R. Crim. P. 31.8(g)(1). “If a dispute arises about whether the
record accurately discloses what occurred in the superior court, the dispute
must be submitted to and settled by the superior court and the record
conformed accordingly.” Ariz. R. Crim. P. 31.8(g)(2) (emphasis added).

¶22 The record here does not include the relevant exhibits or any
information confirming they were actually sent to the jury. Kerr never
sought to correct or reconstruct the record, either in the superior court or in
this court. Thus, we have no way of knowing whether the alleged error
occurred or, if it did occur, what the jury improperly saw. Although the
State describes what it believes the exhibits contained, it confirms that the
record does not include the exhibits, so these descriptions are purely
conjectural. Unlike in State v. Mekeel, where the superior court addressed an
improperly submitted exhibit before the close of trial and included it in the
appellate record, there is nothing non-speculative for us to review here. See
___ Ariz. ___, ___, ¶¶ 6, 8, 561 P.3d 409, 411-13 (App. 2024); see Velasco v.
Mallory, 5 Ariz. App. 406, 410-11 (1967) (“We will not render advisory
opinions anticipative of troubles which do not exist; may never exist; and
the precise form of which, should they ever arise, we cannot predict.”). The
issue is waived for appellate review.

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C. Kerr is Entitled to Resentencing.

¶23 Kerr raises multiple challenges to his sentence. Among other
things, he contends that the superior court erred by concluding it had to
impose the maximum sentence. The State concedes relief is warranted on
this point, and we agree.

¶24 At sentencing, the court determined that “with two
aggravators prove[d] [to] a jury, and nothing on the other side to
counterbalance that, [] I’m left with nothing else than to order the
aggravated term of 25 years.” Twenty-five years’ imprisonment is the
maximum term for second-degree murder under A.R.S. § 13-710(A). Under
A.R.S. § 13-701(C), the court “may” impose the maximum sentence if the
jury finds at least one aggravator. But the maximum is not required—the
statute grants discretion to impose a sentence within a range that extends
to the maximum. See A.R.S. § 13-701(C); State v. Allen, 248 Ariz. 352, 368,
¶ 63 (2020) (Properly found aggravators give the court discretion to
sentence the defendant “within a properly determined maximum range.”).
The court’s failure to realize its discretion to deviate from the maximum
requires us to vacate Kerr’s sentence and remand for resentencing. See State
v. Garza, 192 Ariz. 171, 176, ¶ 17 (1998).

¶25 Given the remand, we need not address Kerr’s arguments that
the court improperly penalized him for declining to speak at sentencing,
erroneously found no mitigation evidence, and (as the State agrees)
erroneously retained jurisdiction over restitution beyond his sentence and
imposed a victim’s rights penalty assessment ex post facto.

CONCLUSION

¶26 We affirm Kerr’s conviction but vacate his sentence and
remand for resentencing.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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