State v. Escalante

Decision Date14 September 2018
Docket NumberNo. CR-17-0251-PR,CR-17-0251-PR
Citation425 P.3d 1078
Parties STATE of Arizona, Appellee, v. Erick Antonio ESCALANTE, Appellant.
CourtArizona Supreme Court

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Eric Knobloch (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona

Kennedy Klagge, Yavapai County Public Defender, Michelle L. DeWaelsche (argued), Deputy Public Defender, Prescott, Attorneys for Erick Antonio Escalante

David J. Euchner (argued), Tucson, Attorney for Amici Curiae Arizona Attorneys for Criminal Justice and Pima County Public Defender’s Office


JUSTICE TIMMER, opinion of the Court:

¶1 When a defendant fails to object to trial error, he forfeits appellate relief absent a showing of fundamental error. Faced with conflicting decisions, we today clarify what that showing entails. A defendant must demonstrate that the error goes to the foundation of the defendant’s case, takes away a right essential to the defense, or is of such magnitude that it denied the defendant a fair trial. To warrant reversal, the defendant must then show prejudice. But if the trial is found to have been unfair, prejudice is automatically established, and no further showing is required.

¶2 Here, the admission and pervasive use of drug-courier profile evidence during the defendant’s trial on drug-related charges constituted fundamental error and prejudiced his ability to receive a fair trial. We therefore reverse and remand for a new trial.


¶3 Detectives in multi-agency task forces suspected Erick Escalante of selling methamphetamine in the Verde Valley area. After receiving several tips and surveilling Escalante, detectives obtained a search warrant and placed a GPS tracking device on his truck. On the evening of January 21, 2015, detectives saw that Escalante’s truck was in Phoenix and suspected he might be picking up methamphetamine to sell. Anticipating the truck’s return to Escalante’s home outside Cottonwood, a detective called the Yavapai County Sheriff’s Office and asked that deputies attempt to conduct a civil traffic stop.

¶4 Two deputies in patrol cars identified the truck near Cottonwood and followed as it exited Highway 260 at Prairie Lane and eventually turned onto Cliff View Drive, a two-lane residential road. The truck veered as if to make a U-turn and stopped perpendicular to the roadway. The deputies blocked the road with their cars and activated their lights to make a civil traffic stop. As a deputy approached the truck, Escalante shifted into reverse and started to back up. The deputy told him to stop, but Escalante shifted into drive saying he intended to "pull to the side of the road." The deputy pulled his gun and repeated his instruction to stop and turn off the truck. Escalante seemed agitated but eventually complied. Later, at a police station, Escalante told officers he had traveled from Camp Verde.

¶5 The deputies searched the truck and found a semi-automatic handgun, several knives, and a machete. They also discovered a digital scale, dryer sheets, coffee beans, a flip cellphone with limited data and no provider subscription (a "throw phone"), and $200 (another $150 was found in Escalante’s wallet). A K-9 officer came to the scene, and his dog "alerted" on the truck, but no drugs were found.

¶6 Within a few hours after Escalante’s arrest and removal of the truck, a deputy returned to the scene. He found a sandwich-size plastic baggie containing a white crystalized substance in the middle of Prairie Lane near Highway 260. The bag appeared to have been run over, and some of the contents had spilled onto the roadway. A criminologist later determined that the bag contained 47.8 grams of methamphetamine (about one-tenth of a pound) and that the digital scale found in Escante’s truck contained methamphetamine residue.

¶7 The State charged Escalante with four drug-related offenses: count one: sale or transport of a dangerous drug (methamphetamine); count two: possession or use of drug paraphernalia (the digital scale); count three: tampering with physical evidence (throwing the bag of methamphetamine out the truck window); and count five: possessing a deadly weapon while committing a felony (transportation of a dangerous drug for sale). He was also charged with four counts of misconduct involving weapons for possessing the handgun, the machete, and two knives as a convicted felon (counts four, six, seven, and eight). The trial court severed the four drug-related counts from the remaining counts.

¶8 Before trial, the State moved in limine to introduce evidence that Escalante had engaged in behaviors "indicative of and consistent with drug trafficking," such as driving in a manner designed to avoid police scrutiny ("heat runs"), using surveillance cameras at home, and traveling to areas of "known drug activity." Escalante’s counsel did not object. At an evidentiary hearing on this and other motions, he stated only that "I think they're going to be allowed to testify as to in their training and experience what they believe that information means." The trial court ruled that the evidence was admissible as either intrinsic to the charged crimes or as "other act" evidence. See Ariz. R. Evid. 404(b).

¶9 At the trial on the drug-related charges, multiple law enforcement officers testified, without objection, about their specialized drug interdiction training and described common drug-trafficking methods and drug-courier habits that were consistent with Escalante’s behaviors. Officers also testified about what they were told by third parties concerning Escalante’s suspected illegal drug activities. The jury found Escalante guilty on all counts. He waived his right to a jury trial on the remaining weapons charges, and the trial court found him guilty on those counts. The court sentenced Escalante to multiple, concurrent prison terms, the longest of which is fourteen years.

¶10 Escalante appealed the drug-related convictions and sentences, and the court of appeals affirmed. See State v. Escalante , 242 Ariz. 375, 396 P.3d 611 (App. 2017). In doing so, the court reviewed for fundamental error whether the trial court incorrectly admitted drug-courier profile evidence and hearsay statements. See id. at 379 ¶ 11, 386 ¶ 54, 396 P.3d 611.

¶11 We granted review to clarify what a defendant must show to establish fundamental, prejudicial error, a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

I. Fundamental error review

¶12 Escalante argues that the trial court committed reversible error by permitting the State to introduce drug-courier profile and hearsay evidence as substantive evidence of guilt. Because Escalante did not object to this evidence, we will not reverse unless the court committed error that was both fundamental and prejudicial. See State v. Henderson , 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601 (2005). Some confusion about what fundamental error review entails—much of it our own making—has arisen since this Court decided Henderson . Thus, we clarify that standard before applying it here.

¶13 In Henderson , this Court noted that prior appellate decisions had inconsistently described what is necessary to establish fundamental error. Id. at 568 ¶ 21, 115 P.3d 601. It set forth a single standard and disapproved inconsistent decisions. Id. The Court described fundamental error review as follows:

A defendant who fails to object at trial forfeits the right to obtain appellate relief except in those rare cases that involve "[prong 1] error going to the foundation of the case, [prong 2] error that takes from the defendant a right essential to his defense, and [prong 3] error of such magnitude that the defendant could not possibly have received a fair trial." ... In addition, we place the burden of persuasion in fundamental error review on the defendant....
To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice.

Id. at 567 ¶¶ 19–20, 115 P.3d 601 (emphasis added) (quoting State v. Hunter , 142 Ariz. 88, 90, 688 P.2d 980 (1984) (citing State v. Gendron , 168 Ariz. 153, 155, 812 P.2d 626 (1991) (holding that fundamental error is that which is "clear, egregious, and curable only via a new trial") ) ).

¶14 Unfortunately, the word "and" in Henderson ’s three-prong test for fundamental error muddies its application. The Court may have used the term to mean that all three prongs must be shown (a conjunctive standard). Or the Court may have used the term in listing the "rare" types of error that are fundamental error, meaning only one prong must be shown (a disjunctive standard), as Hunter implied. 142 Ariz. at 90, 688 P.2d 980. The Henderson Court itself applied a disjunctive standard, finding fundamental error when only one prong was shown. See 210 Ariz. at 568 ¶ 25, 115 P.3d 601.

¶15 Since Henderson , this Court has exacerbated the confusion by variously treating the fundamental error standard as both conjunctive and disjunctive. Compare State v. Escalante-Orozco , 241 Ariz. 254, 272 ¶ 40, 386 P.3d 798 (2017) (conjunctive); State v. Dalton , 241 Ariz. 182, 186 ¶ 12, 385 P.3d 412 (2016) (same); State v. Valverde , 220 Ariz. 582, 585 ¶ 12, 208 P.3d 233 (2009) (same), with State v. Naranjo , 234 Ariz. 233, 246 ¶ 58, 321 P.3d 398 (2014) (disjunctive); State v. Forde , 233 Ariz. 543, 554 ¶ 16, 315 P.3d 1200 (2014) (same); State v. Hargrave , 225 Ariz. 1, 8 ¶ 13, 234 P.3d 569 (2010) (same); State v. Bearup , 221 Ariz. 163, 168 ¶ 21, 211 P.3d 684 (2009) (same). Here, the court of appeals applied a conjunctive standard. See Escalante , 242 Ariz. at 383 ¶ 35, 396...

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