Commonwealth v. Crisostomo

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. JOSEPH A. CRISOSTOMO, Defendant-Appellant. Supreme Court No. 2014-SCC-0013-CRM Superior Court No. 13-0049 OPINION Cite as: 2018 MP 5 Decided July 13, 2018 Matthew C. Baisley, Assistant Attorney General, Office of the Attorney General, Saipan, MP, for Plaintiff-Appellee. Janet H. King, Saipan, MP, and F. Randall Cunliffe & Jeffrey A. Moots, Hagatna, Guam, for Defendant-Appellant.  Commonwealth v. Crisostomo, 2018 MP 5 BEFORE: ALEXANDRO C. CASTRO, Chief Justice; JOHN A. MANGLOÑA, Associate Justice; PERRY B. INOS, Associate Justice. MANGLONA, J.: ¶1 Defendant-Appellant Joseph A. Crisostomo (“Crisostomo”) appeals his convictions for First Degree Murder, Kidnapping, Sexual Assault in the First Degree, Robbery, Assault and Battery, and Disturbing the Peace. Crisostomo challenges these convictions, claiming numerous deficiencies before and during trial: (1) denial of expert testimony; (2) admission of expert testimony; (3) denial of his motion to transfer venue; (4) failure to reiterate jury instructions at the close of evidence; (5) admission of improper character evidence; (6) admission of testimony based on an impermissibly suggestive identification; (7) admission of footprint evidence; (8) use of Skype testimony; (9) admission of testimony concerning refusal to submit to polygraph examination; and (10) cumulative errors resulting in an unfair trial. For the following reasons, we AFFIRM Crisostomo’s convictions. I. FACTS AND PROCEDURAL HISTORY ¶2 On February 7, 2012, Federal Bureau of Investigation (“FBI”) Agents Hae Jun Park (“Park) and Joseph Auther (“Auther”) searched northern Saipan in pursuit of Emerita Romero (“Romero”), who had been reported missing on February 5. Upon receiving information that the Palms Resort cell tower had picked up Romero’s last phone call, the agents searched the abandoned La Fiesta Mall. Auther and Park found footprints and drag marks leading to a body in one of the buildings’ bathrooms, which was later identified as Romero. ¶3 Two days earlier, on February 5, 2012, Romero placed a call between 2 and 3 a.m. requesting that her usual taxi driver, Cebong Kim (“Kim”), pick her up near Garapan Market. At approximately 2:45 a.m., Natalie Ocon (“Ocon”) observed Romero, her coworker, get into a blue or green Toyota parked in front of Wild Bill’s restaurant in Garapan. Romero was in a rush to get into the taxi she had called earlier; she planned to visit her boyfriend, Taj Van Buren (“Van Buren”), in Chalan Piao. By the time Kim arrived to pick her up, however, Romero was no longer there. After realizing the car she was in was not the taxi she called for, Romero called Kim, informing him of the situation and asking for the taxi service’s phone number. A few minutes later, Romero called Kim again. Sounding shocked, she asked Kim to pick her up in Puerto Rico. The car was on the move, and before the line was disconnected, Kim heard Romero and a man shouting. Concerned, Kim met with Van Buren and informed him of the phone calls. Kim waited as Van Buren called and texted Romero for approximately twenty minutes with no answer. ¶4 Department of Public Safety (“DPS”) dispatcher Loni Perry (“Perry”) received a 911 call at 3:02 a.m. that same morning. On this call, Perry heard a Filipina female crying, telling a local male that her neck hurts and pleading to be let go. In response, the male voice told her “[i]t’s okay, it’s okay. I’ll take you home,” tr. 1125, and asked, “[w]hat’s your name?” Id. The female responded,  Commonwealth v. Crisostomo, 2018 MP 5 “Emie.” Id. Sensing the importance of the call, Perry transferred the phone to her supervisor, DPS Officer Sandy Hambors (“Hambors”). As Hambors listened, the female pleaded for help, asked to pull up her pants, and indicated she was at Marianas Resort. The call was cut off, and Hambors immediately dispatched himself and other officers to the Marpi area. Meanwhile, Perry unsuccessfully attempted to call back 989-4425, the number that had called 911. The officers were also unsuccessful, having been unable to locate the source of the 911 call in their search. ¶5 At about 5:00 p.m. that same day, Scott Dottino (“Dottino”), co-owner of Godfather’s Bar and Romero’s employer, arrived at work. Being that Romero was usually on time, Dottino called his partner and other staff members in search of Romero, also sending an employee to Romero’s house to talk to her family and check her bedroom. After hearing no one had seen Romero, Dottino spoke with Auther and other DPS officers, reporting Romero as a missing person. News stories began running about Romero’s disappearance, broadcasting images of the car Ocon had seen and asking for information. ¶6 Joanne Castro (“Castro”), Crisostomo’s prior partner of seventeen years, saw the news reports. As a confidential informant, she reported seeing Crisostomo driving a car matching the description on the news around 9:00 p.m. on February 4. Shaine Castro (“Shaine”), Castro and Crisostomo’s daughter, also noticed Crisostomo driving a dark-colored, tinted Toyota Corolla. As a result, DPS officers collected records from rental car companies. Edith Vargas (“Vargas”) and Leticia Aquino (“Aquino”), Islander Rent-A-Car employees, both confirmed that Annie Crisostomo (“Annie”), Crisostomo’s sister, had rented a turquoise tinted Toyota Corolla from February 3 to February 8. However, at 9:30 a.m. on February 5, Annie returned the vehicle, asking to exchange it. Although the Corolla’s windows were tinted, she requested to exchange it for a car with tinted windows, receiving a car of the same model and similar color. Crisostomo also confirmed as such: he requested a meeting with Commissioner Ramon Mafnas (“Mafnas”), where he admitted he had been driving a sky blue/green rental car in Garapan on the evening of February 4. Crisostomo knew Annie had returned the vehicle but claimed not to know why. ¶7 Numerous other pieces of evidence were found during the investigation. Hambors’ part of the 911 call was recorded; this recording was separately played to DPS Detective Elias Saralu (“Saralu”), DPS Detective Roque King Camacho (“Camacho”), and Castro, all of whom had known Crisostomo outside of the investigation. Each of them individually identified the male voice on the 911 call as Crisostomo’s. Romero’s purse was recovered from La Fiesta, but her phone, a Blackberry Torch, was not found. Crisostomo did not own a cell phone, and yet, DPS Detective Simon Manacop (“Manacop”) testified that a witness saw Crisostomo on February 5 attempting to sell a Blackberry Torch. On the evening of February 4, however, Crisostomo met with some friends, including Alice Kintaro (“Kintaro”), at Piano Poker in Garapan around 1:30 a.m. He asked Kintaro to borrow her cell phone (788-5324), and she obliged. Kintaro left Piano  Commonwealth v. Crisostomo, 2018 MP 5 Poker soon after and did not hear from Crisostomo until 6:00 a.m. on February 5, at which time he asked her to pick up Annie and others from Piano Poker, stating he was busy. IT&E phone records extracted from 788-5324 and 989-4425 indicated that 989-4425 had made calls picked up by the Hafa Adai cell site in Garapan at 2:55, 2:57, and 2:58 a.m, and 788-5324 had made a call picked up by the Hafa Adai cell tower at 2:44 a.m., with the next call picked up at the Palms Resort cell tower covering north and south Marpi Road at 6:00 a.m. ¶8 Expert testimony was also crucial in interpreting evidence. Gel impressions were created from barefoot footprints left at La Fiesta and subsequently compared to footprints obtained from Crisostomo pursuant to a search warrant. William Bodziak (“Bodziak”), an expert in barefoot morphology, found that he could not exclude Crisostomo’s footprints from the gel lifts on any basis. Although the rental car had since been cleaned and twice-rented, DPS and FBI agents collected remaining debris and vacuum sweepings. Linda Otterstatter (“Otterstatter”), an expert in the microscopic analysis of hair and fiber, found a hair sample from the front passenger’s side that exhibited the same microscopic characteristics as Romero’s hair. She found two black cotton fibers from the driver’s seat that exhibited the same microscopic characteristics and optical properties as Romero’s leggings. Otterstatter also indicated that two black brown polyester fibers found on Romero’s shoe exhibited the same microscopic characteristics as fibers found on the front and rear passenger’s seats. DNA was also collected from Romero as part of a rape kit. Susana Kehl (“Kehl”), an FBI DNA analyst, testified that DNA taken from Romero signified the presence of two or more individuals’ DNA. The DNA found was compared to DNA samples taken from Crisostomo, Van Buren, Ivan Castro (“Ivan”), and Cheyenne Sablan (“Sablan”). No DNA was found on Romero matching Ivan, Sablan, or Van Buren. After accounting for Romero’s DNA, however, Kehl determined Crisostomo was likely the major contributor of the DNA. Crisostomo attempted to present his own DNA expert, Dr. David Haymer (“Haymer”), but the court denied Haymer’s testimony. ¶9 Pretrial motions and jury instructions were extensive. Amongst other motions, Crisostomo filed pretrial motions to transfer the trial’s venue, exclude evidence of his prior bad acts, and exclude evidence of the footprints found at La Fiesta. Both Crisostomo and the Commonwealth filed motions to exclude the testimony of multiple experts and hold Daubert hearings to determine their ability to testify. At the close of trial, the court read new and amended jury instructions while passing out packets with all of the instructions, instructing jurors to consider all of them. Amongst the newly added instructions was one addressing a defendant’s right to refuse to submit to a polygraph test. ¶ 10 After a day of deliberations, the jury convicted Crisostomo of First Degree Murder, Kidnapping, Sexual Assault in the First Degree, and Robbery. The judge convicted Crisostomo of Assault and Battery and Disturbing the Peace. Crisostomo appeals his convictions.  Commonwealth v. Crisostomo, 2018 MP 5 II. JURISDICTION ¶ 11 We have jurisdiction over all final judgments and orders issued by the Superior Court. NMI CONST. art. IV, § 3. III. STANDARDS OF REVIEW ¶ 12 There are ten issues on appeal. First, whether Crisostomo’s rebuttal expert witness was properly excluded from testifying regarding the Commonwealth’s interpretation of forensic DNA results. Second, we review whether the Commonwealth’s expert witness was properly admitted. We review a court’s decisions whether to exclude or admit evidence under NMI Rule of Evidence 702 (“Rule 702”) for abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Third, whether the court properly denied Crisostomo’s motion to transfer venue. We review a court’s ruling on a motion regarding venue for abuse of discretion. Guerrero v. Tinian Dynasty Hotel & Casino, 2006 MP 26 ¶ 10. Fourth, whether the court erred in delivering jury instructions. Absent an objection, we review the court’s failure to reread jury instructions following the close of evidence for plain error. Commonwealth v. Reyes, 2016 MP 3 ¶ 9. Fifth, whether the court should have declared a mistrial pursuant to Castro’s reference to Crisostomo’s prior bad acts. Where defendant fails to move for a mistrial, we review the court’s failure to declare a mistrial sua sponte for plain error. United States v. Abakar, 573 Fed. App’x 613, 614 (9th Cir. 2014). Sixth, whether the court violated Crisostomo’s Due Process rights in admitting testimony resulting from a suggestive identification. We review constitutional claims de novo. J.G. Sablan Rock Quarry, Inc. v. Dep’t of Pub. Lands, 2012 MP 2 ¶ 17. Seventh, whether Crisostomo’s Sixth Amendment rights were violated in the taking of his footprints. Eighth, whether Crisostomo’s Sixth Amendment and Due Process rights were violated when the court allowed witness testimony over Skype. We review issues seven and eight under plain error because Crisostomo did not timely object at trial. See Commonwealth v. Xiao, 2013 MP 12 ¶ 16. Ninth, whether the court erred in admitting testimony of Crisostomo’s refusal to take a polygraph test. Where a specific objection is not raised, we review for plain error. Reyes, 2016 MP 3 ¶ 11. Finally, we review for cumulative error. Because the court below did not and could not have ruled on such a claim, we review de novo. Commonwealth v. Cepeda, 2014 MP 12 ¶ 37. IV. DISCUSSION1 A. Denial of Expert Testimony ¶ 13 Crisostomo argues the court abused its discretion in denying his motion to 1 We are implored to point out the deficiencies in Crisostomo’s briefs. The Commonwealth notes Crisostomo has taken an “everything-but-the-kitchen-sink- approach” to the appeal, and we agree. Resp. Br. 10. In addition, Crisostomo’s briefing is littered with violations of NMI Supreme Court Rules, conclusory statements, underwhelming legal arguments, and misstatements of law. Even a standard of review is not provided for half of the issues on appeal. Counsel herself admitted to such defects in briefing during the trial, stating “[c]itation errors and omissions waste the Court’s time, the opposing counsels’ time, and weakens the credibility of the proponent of the  Commonwealth v. Crisostomo, 2018 MP 5 admit Haymer as an expert witness under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”). He asserts the court incorrectly concluded Haymer was unqualified to give expert testimony on human DNA mixtures due to a lack of specialization in forensic DNA. Crisostomo claims that Haymer did, in fact, possess sufficient skills, education, and experience to qualify as an expert pursuant to the broad dictates of Rule 702. The Commonwealth, on the other hand, argues Haymer did not have the experience and education required to testify in the specialized field of forensic DNA analysis, and that the court correctly excluded his testimony. The Commonwealth further claims the court not only excluded Haymer due to his qualifications, but also pursuant to 702(c) and (d). It claims Crisostomo did not present testimony to satisfy the court that Haymer’s testimony was based on reliable principles and methods and that he would reliably apply these principles and methods to the facts of the case.2 ¶ 14 The admissibility of an expert pursuant to Daubert and Rule 702 presents an issue of first impression for the Commonwealth. While we have previously touched upon the parameters of expert testimony in the context of Rule 702, see argument. For all of these failures, counsel apologizes.” Appellant’s App. 0264. Counsel apologized but repeated such errors on appeal. We remind those before us that “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them. Furthermore, [r]ulings on undeveloped or poorly developed issues run the risk of being improvident or ill-advised.” Kim v. Baik, 2016 MP 5 ¶ 30 (citations and internal quotation marks omitted). Such deficient briefing is grounds for rejecting the appeal. 2 The Commonwealth correctly notes that an issue not raised in an appellant’s opening brief is generally waived. Commonwealth v. Calvo, 2014 MP 10 ¶ 8 (waiving issue “unless the party’s initial brief provides legal authority or public policy, and applies the facts of the case to the asserted authority in a non-conclusory manner”). However, we have also recognized exceptions to this rule. We may consider issues not raised in the opening brief if: “(1) there is good cause shown, or failure to do so would result in manifest injustice; (2) the issue is raised in the appellee’s brief; or (3) failure to properly raise the issue does not prejudice the defense of the opposing party.” Commonwealth v. Lizama, 2015 MP 2 ¶ 11 n.4 (quoting United States v. Mageno, 762 F.3d 933, 940 (9th Cir. 2014)). We may also lift this prohibition “when the case offers a valuable opportunity to guide future courts and litigants faced with similar issues.” Calvo, 2014 MP 10 ¶ 7 n.1 (citation and internal quotation marks omitted). Here, the second and third exceptions apply. First, the Commonwealth discussed the court’s exclusion of Haymer pursuant to Rule 702(c) and (d) in detail, dedicating over three and a half pages briefing this assertion. Second, Crisostomo’s failure to argue the court’s potential abuse of discretion as to 702(c) and (d) does not prejudice the Commonwealth. Not only did the Commonwealth fully brief its assertions as to this issue, but it was also extensively discussed by both parties during oral argument. Furthermore, this case provides a valuable opportunity to expand our limited jurisprudence on Rule 702. As such, we consider whether the court addressed 702(c) and (d) in its ruling.  Commonwealth v. Crisostomo, 2018 MP 5 Xiao, 2013 MP 12 ¶¶ 43–49; Commonwealth v. Palacios, 4 NMI 330, 332–33 (1996), we have not addressed the requirements under this rule as outlined by the United States Supreme Court in Daubert, 509 U.S. at 579, General Electric Co. v. Joiner, 522 U.S. 136 (1997) (“Joiner”), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (“Kumho Tire”). As Rule 702 mirrors Federal Rule of Evidence 702 (“FRE 702”), we look to the United States Supreme Court and federal circuit courts for guidance. Xiao, 2013 MP 12 ¶ 47 n.5; compare NMI R. EVID. 702 with FED. R. EVID. 702. Because we have not had occasion to review the parameters of a judge’s gatekeeping function pursuant to Rule 702, we review our previous decisions contemplating expert testimony as well as the requirements for admitting such testimony as explained in the United States Supreme Court’s Daubert trilogy and applied by the federal circuit courts. ¶ 15 Under Rule 702, “a person with ‘specialized knowledge’ qualified by his or her ‘knowledge, skill, experience, training, or education’ may give opinion testimony” if it satisfies the rule’s requirements. Xiao, 2013 MP 12 ¶ 43 (quoting NMI R. EVID. 702). Rule 702 states: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. NMI R. EVID. 702. Put simply, Rule 702 requires that: “(1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony ‘fit’ the facts of the case.” FED. R. EVID. 702 advisory committee’s note to 2000 amendment. Because “the admissibility of all expert testimony is governed by the principles of [Federal Rule of Evidence] 104(a). . . . the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.” Id. ¶ 16 In Commonwealth v. Xiao and Commonwealth v. Palacios, we addressed issues which implicated Rule 702. See 2013 MP 12 ¶¶ 43–49; 4 NMI at 332–33. In Xiao, we determined whether a police officer’s opinion regarding a defendant’s mental state constituted expert testimony. Xiao, 2013 MP 12 ¶ 44. In Palacios, we considered whether testimony concerning a field sobriety test concerned scientific, technical, or specialized knowledge such that an officer testifying to such was required to be qualified as an expert. Palacios, 4 NMI at 332. In both instances, we determined the officers did not need to be qualified as experts since they were testifying based on personal knowledge and not  Commonwealth v. Crisostomo, 2018 MP 5 “scientific, technical or specialized knowledge” within the meaning of Rule 702. Xiao, 2013 MP 12 ¶ 47; Palacios, 4 NMI at 333. However, we noted that should a witness testify about specialized knowledge, their testimony would then be subject “to the relevant qualification procedure” and “particularized evidentiary rules regarding their testimony,” just like any other expert witness. Xiao, 2013 MP 12 ¶ 48.3 Faced with an issue implicating the relevant qualification procedure for expert testimony under Rule 702, we now discuss these requirements. ¶ 17 In Daubert, the United States Supreme Court considered the viability of the previous standard governing admission of expert testimony, the Frye “general acceptance” test, in light of the adoption of the Federal Rules of Evidence. Daubert, 509 U.S. at 586. The Court found the “general acceptance” test had been superseded by the Federal Rules of Evidence. Id. at 589. Instead, courts were tasked with ensuring testimony admitted under FRE 702 was reliable, pertaining to scientific knowledge, and relevant, “assist[ing] the trier of fact to understand the evidence or to determine a fact in issue.” Id. at 589–91 (quoting FRE 702). The Court further explained that relevance was a question of fit, requiring courts to review whether the testimony is “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. at 591 (citing United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)) (internal quotation marks omitted). Thus, the new standard for admissibility required courts to “determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Id. at 592. The Court listed sample potential considerations for making this determination, such as testability, peer review and publication, error rate, and general acceptance in the relevant scientific community. Id. at 593–94. The Court concluded by emphasizing the test outlined was meant to be flexible, focused on determining the scientific validity of the principles underlying the proposed testimony. Id. 594–95. ¶ 18 The Supreme Court elaborated on Daubert in Joiner and Kumho Tire. First, in Joiner, it determined abuse of discretion was the proper standard for an appellate court’s review of the decision to admit or exclude expert testimony. 522 U.S. at 139. Then, in Kumho Tire, it elaborated upon the gatekeeping obligation outlined in Daubert, explaining it applies to “testimony based on technical and other specialized knowledge” in addition to scientific knowledge. 526 U.S. at 141 (citation and internal quotation marks omitted). Moreover, it explained the judge has broad latitude in how they perform their obligation, both in deciding “how to test an expert’s reliability” and “whether that expert’s relevant testimony is reliable.” Id. at 152 (finding the abuse of discretion standard “applies as much 3 We have also considered the parameters of expert assistance in a different context, considering when, pursuant to the Sixth and Fourteenth Amendments of the United States Constitution, an indigent defendant must be provided with access to expert assistance. See Commonwealth v. Monkeya, 2017 MP 7 ¶¶ 5–14 (Slip. Op., Sept. 5, 2017); Commonwealth v. Xiao, 2013 MP 12 ¶¶ 50–56; Commonwealth v. Perez, 2006 MP 24 ¶¶ 9–15.  Commonwealth v. Crisostomo, 2018 MP 5 to [lower] court’s decisions about how to determine reliability as to its ultimate conclusion”). The Court explained that because “there are many different kinds of experts, and many different kinds of expertise,” scientific foundations, personal knowledge, and numerous other criteria may be at issue. Id. at 150. And because a court’s gatekeeping inquiry must be tied to the facts of the particular case, “the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Id. (citation and internal quotation marks omitted). Importantly, the Court added that “discretion in choosing the manner of testing expert reliability—is not discretion to abandon the gatekeeping function. . . . [or] perform the function inadequately.” Id. at 158–59 (Scalia, J., concurring). “Rather, it is discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Id. ¶ 19 While we have never explicitly held Daubert and its progeny applicable in the Commonwealth, we do so now. With these instructions in mind, we review the manner in which the court made its determination to exclude Haymer’s testimony under the abuse of discretion standard. Kumho Tire, 525 U.S. at 152. We also review the court’s ultimate determination to exclude Haymer based on his expertise for abuse of discretion. Id.; see also Xiao, 2013 MP 12 ¶ 43 (citation omitted). We will not reverse a decision to exclude or admit evidence “unless the ruling is manifestly erroneous.” Joiner, 522 U.S. at 142. “An abuse of discretion exists if the court based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Commonwealth v. Taitano, 2017 MP 19 ¶ 37 (citation and internal quotation marks omitted); United States v. Cohen, 510 F.3d 1114, 1123 (9th Cir. 2007) (same). We address the parties’ arguments in turn, first considering the court’s determination as to 702(c) and (d), then addressing the court’s ruling on Haymer’s qualifications. i. Reliability ¶ 20 Parts (c) and (d) of Rule 702 require that “the testimony is the product of reliable principles and methods” and that “the expert has reliably applied the principles and methods to the facts of the case.” FED. R. EVID. 702. Indeed, “[i]t is by now well established that [FRE 702] imposes on a . . . court a gatekeeper obligation to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (quoting Daubert, 509 U.S. at 589). This obligation “requires the judge to assess the reasoning and methodology underlying the expert’s opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts.” Id. As explained in paragraph 17, the Daubert Court offered four non-exclusive considerations for evaluating whether an expert’s testimony is reliable and relevant, Daubert, 509 U.S. at 593–94, and elaborated on the flexibility of this determination in Kumho Tire. This flexibility, however, has limitations: a court has broad discretion in fulfilling its gatekeeping function, but it must not abandon this function or perform it inadequately. Kumho Tire, 526 U.S. at 159 (Scalia, J., concurring).  Commonwealth v. Crisostomo, 2018 MP 5 ¶ 21 First, in not abandoning the gatekeeping function, courts must allow presentation of evidence as to the relevance and reliability of the expert’s proffered testimony. See Heer v. Costco Wholesale Corp., 589 Fed. App’x 854, 860 (10th Cir. 2014) (“As part of their gatekeeper function under [FRE 702], district courts must create a sufficiently developed record . . . .”) (citation and internal quotation marks omitted); Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1316 (9th Cir. 1995) (noting gatekeeping role requires judge to satisfy themselves of reliability, meaning that “the party presenting the expert must show that the expert’s findings are based on sound science”); see, e.g., Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 464 (9th Cir. 2014) (finding court abandoned role as gatekeeper by excluding expert based on credentials without any indication it assessed the scientific validity or methodology of the expert’s proposed testimony). This inquiry does not need to take any particular form, the court must simply allow the parties the opportunity to explore the proposed testimony’s relevance and reliability. United States v. Alatorre, 222 F.3d 1098, 1104–05, (9th Cir. 2000) (“Notably, this case does not involve a trial court’s refusal to permit any inquiry into an expert’s qualifications or the basis for the proffered opinion . . . . On the contrary, the trial court . . . indicated that it would allow further questioning . . . should that become necessary. Such a procedure is appropriate.”); see, e.g., Millenkamp v. Davisco Foods Int’l, Inc., 562 F.3d 971, 979 (9th Cir. 2009) (finding briefing on expert’s scientific expertise and proposed testimony prior to trial such that “[t]he district court could properly determine that this information comprised an adequate record from which the court could make its ruling” constituted a proper exercise of its gatekeeping function). ¶ 22 Padillas v. Stork-Gamco, Inc. provides an example of the process required for a court to properly perform its gatekeeping function. 186 F.3d 412 (3d Cir. 1999). There, the plaintiff filed a report prepared by its proffered expert as part of its opposition to a summary judgment motion. Id. at 416. In its ruling, the court found the expert’s testimony inadmissible under FRE 702 because it “provide[d] no basis for the conclusions and observations that he makes. . . . He does not set forth in his report the methodology by which he made his determinations in this case. He does not indicate that he conducted any tests or what the testing techniques were.” Id. The Padillas court took issue, not with the court’s ultimate conclusion to exclude the report, but with “the process by which the court arrived at its ruling.” Id. at 417 (emphasis added). The court in particular noted the requirement of “adequate process at the evidentiary stage,” necessitating that parties be given an adequate chance to defend the expert’s admission. Id. Regardless of whether the plaintiff had requested an in limine hearing, the court had an independent responsibility to properly manage the case. Id. Importantly, the court’s analysis did not establish that the expert did not have “‘good grounds’ for his opinions, but rather, that they [were] insufficiently explained and the reasons and foundations for them inadequately and perhaps confusingly explicated.” Id. at 418. The court abandoned its role as gatekeeper by excluding the testimony rather than giving the testimony’s proponent “an opportunity to  Commonwealth v. Crisostomo, 2018 MP 5 respond to the court’s concerns.” Id. ¶ 23 Second, courts must also not perform the gatekeeping function inadequately: after a proper inquiry into relevance and reliability, the court must make specific findings regarding its evaluation of the expert. See Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1066 (9th Cir. 2002). Thus, summarily admitting or excluding testimony without assessing reliability is inadequate—Daubert and its progeny require “some kind of reliability determination” to be made on the record. Daubert, 509 U.S. at 597; United States v. Velarde, 214 F.3d 1204, 1209 (10th Cir. 2000); see, e.g., Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 814 (9th Cir. 2014) (“Because the district court provided no explanation or analysis for rejecting these qualifications, the district court abused its discretion in summarily determining that Spiegel was not qualified as an expert.”). The Ninth Circuit’s decision in Estate of Barabin exemplifies the necessity of making findings pursuant to Daubert and FRE 702. ¶ 24 In Estate of Barabin, the Ninth Circuit evaluated whether the court abused its discretion in failing to make gateway determinations as to the relevance and reliability of two experts’ methodologies. 740 F.3d at 467. The judge admitted the first expert without a Daubert hearing or factual findings, solely stating that “the plaintiffs did a much better job of presenting to me the full factual basis behind [the expert] testifying and his testimony in other cases.” Id. at 464 (internal quotation marks omitted). As to the second expert, the court deemed the testimony admissible as long as “the jury was informed of the marked differences” between actual and test conditions. Id. (internal quotation marks omitted). The Ninth Circuit first noted that although the Daubert inquiry is flexible, it interpreted FRE 702 to “clearly contemplate[] some degree of regulation of the subjects and theories about which an expert may testify.” Id. at 463–64 (citations and internal quotation marks omitted). Despite determining that as the reviewing court it had the authority to make Daubert findings, the Barabin court found it could not “speak to the admissibility of the expert testimony at issue here because the record . . . [was] too sparse to determine whether the expert testimony is relevant and reliable.” Id. at 467. It could only say with certainty that the court abused its discretion, inadequately performing the gatekeeping role by failing to make determinations as to the relevancy and reliability of the expert’s testimony. Id. ¶ 25 Although the record is scant, we find the court failed to adequately perform its gatekeeping role. Like in Padillas, the court abandoned its gatekeeping role when it failed to allow sufficient questioning and examination of Haymer as to his qualifications under 702(c) and (d), nor did it voice its own questions. And, as in Barabin, the court failed to make specific findings as to why it excluded Haymer pursuant to 702(c) and (d). The voir dire as to Haymer and Kehl reveals the procedural flaw. ¶ 26 The Daubert hearing for Kehl began with the Commonwealth eliciting her qualifications. After the Commonwealth’s questions, Crisostomo waived questioning as to Kehl’s qualifications, with the court specifically asking  Commonwealth v. Crisostomo, 2018 MP 5 “[y]ou’re gonna forego your voir dire as to her credentials?” Tr 2. 295.4 Immediately after, the Commonwealth offered Kehl as an expert in “DNA in general and serology mixtures,” id. at 296, and the court qualified her. After a break, the court reconvened. Only then—after Kehl had already been admitted as an expert—was she questioned as to her methodology in general and its application to the facts of the case. ¶ 27 This same piecemeal Daubert procedure was used for Haymer. Prior to testifying, the court explained: “[w]e’ll conduct a Daubert hearing and see if whether or not he has the training, education, and credentials to be certified to testify as an expert. . . . If the court deems . . . that he’s an expert then he can testify to whatever extent reports he has read.” Tr 2. 416. Following this procedure, the Daubert hearing as to Haymer similarly began with questioning only as to his qualifications. The court then requested arguments as to whether Haymer’s qualifications satisfy Rule 702. Crisostomo limited his argument to Haymer’s qualifications as an expert. The Commonwealth, on the other hand, argued both Haymer’s qualifications and satisfaction of 702(c) and (d), claiming “we didn’t hear anything about what he did when he looked at this evidence. There was no methods or principles that he testified about when he looked at [Kehl’s] bench notes.” Id. at 453. Crisostomo attempted to alert the court that Haymer had not been questioned about his methodology and its application, arguing Haymer was prepared to: Challeng[e] the—the manner in which [Kehl] came up with her conclusion that the potential major contributor of the DNA is [Crisostomo’s] based on a mixture interpretation. Now what we have here is a table and an electropherogram. Based on the table, [Kehl] has testified that it—based on a computer program that separated the major and minor, she also did an additional electropherogram anlaysis [sic] of that DNA . . . . It’s a matter of the interpretation of the DNA that is at issue in this case. The DNA, that if it goes towards prosecution’s story, points to [Crisostomo], the DNA profile of the major contributor. Now, [Haymer] is prepared to testify that that is dubious. . . . [Haymer] . . . is going to say, well I looked at this, I have made an opinion, this is based on my expertise. Id. at 456–57. Despite Crisostomo’s offer of proof and the court’s own acknowledgment that the parties had only made arguments as to Haymer’s qualification as a forensic DNA examiner, the court not only ruled that Haymer was unqualified, but also that he did not satisfy 702(c) and (d). It stated it “did not hear from the doctor as to what reliable principles and methods, other than his, uh, general statement that DNA is DNA and that, uh, further as to whether or not he applied those principles and methods to the facts of this case.” Id. at 4 Because we have been provided with two separately numbered transcripts, we refer to the certified transcript for April 16–17 and 21–23 as Tr. 2.  Commonwealth v. Crisostomo, 2018 MP 5 459. ¶ 28 The court abandoned and improperly performed its gatekeeping function. It did not allow either counsel to question Haymer as to his methodology and its reliability, nor did it inquire as to these issues on its own accord, failing to establish a sufficiently developed record for our review. As a result, the court was also unable to make specific findings or explain its 702(c) and (d) rulings. Notably, the court found that it did not hear Haymer’s purported reliable methodology, not that Haymer’s methodology was unreliable. It unreasonably limited the evidence regarding the reliability and application of Haymer’s methodology, and, as a result, prematurely rendered its conclusion on Haymer’s admissibility. Because of this error, the court could not make specific findings on the record. The manner in which the court made its ruling was manife