State v. Gonzalez

• Decision Date: 12 June 2012
• Docket Number: No. 1 CA–CR 11–0494.,1 CA–CR 11–0494.
• Citation: 278 P.3d 328,229 Ariz. 550,636 Ariz. Adv. Rep. 7
• Parties: STATE of Arizona, Appellee, v. Alfredo GONZALEZ, Appellant.
• Court: Arizona Court of Appeals

229 Ariz. 550

278 P.3d 328

636 Ariz. Adv. Rep. 7

STATE of Arizona, Appellee,

v.Alfredo GONZALEZ, Appellant.

No. 1 CA–CR 11–0494.

Court of Appeals of Arizona,

Division 1, Department A.

June 12, 2012.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Jeffrey L. Sparks, Assistant Attorney General, Phoenix, Attorneys for Appellee.

David Goldberg, Fort Collins, CO, Attorney for Appellant.

OPINION

GOULD, Judge.

[229 Ariz. 551][1] ¶ 1 Alfredo Gonzalez appeals his conviction for transportation of dangerous drugs for sale. For the reasons that follow, we affirm. In reaching our decision, we hold that expert testimony as to the modus operandi of a drug trafficking organization may, depending upon the facts and circumstances of a case, be admitted as evidence.¹ There is no per se rule of inadmissibility for such testimony, and trial courts have the discretion to consider the relevancy and danger for unfair prejudice of such evidence on a case-by-case basis.

Factual Background

¶ 2 On July 27, 2010, Department of Public Safety (“DPS”) Sergeant Kasun (“Kasun”) conducted a traffic stop of a vehicle heading north on Interstate 17 between Sunset Point and Cordes Junction.² Jose Arenas–Pinzon (“Pinzon”) was the driver of the vehicle, and Gonzalez was sitting in the front passenger seat. Kasun asked Pinzon to exit the car, and then asked Pinzon where he was going. Pinzon told Kasun he and Gonzalez were heading to Oklahoma to work for a month. Pinzon was unable to identify the registered owner of the vehicle. When Kasun asked Pinzon how long he had known Gonzalez, Pinzon stated he had known him for two weeks.

¶ 3 Kasun returned to the vehicle, and observed a cracked windshield on the passenger side consistent with “prying the windshield out of place.” Kasun noted “extremely fresh” glue around the windshield, indications that the windshield wipers had recently been removed, and “freshly tooled” screws holding the cowling around the windshield in place. Kasun also observed that the interior of the vehicle was “extremely dirty” except for the dashboard, which was “freshly Armor–Alled, very clean up on top,” and “looked inconsistent with the rest” of the vehicle.

¶ 4 Eventually, Kasun asked Gonzalez where he and Pinzon were going. At odds with Pinzon's statement, Gonzalez stated that they were going to Kansas to drop off the car with an unknown person, and then would immediately return to Phoenix by bus. When Kasun asked Gonzalez how long he had known Pinzon, Gonzalez replied he had known Pinzon for six months. Kasun also noticed Gonzalez initially appeared to be “extremely nervous” and “very distant,” and avoided eye contact whenever Kasun asked him if there were illegal drugs in the car.

¶ 5 Both Pinzon and Gonzalez signed consent forms permitting Kasun to search the vehicle. During this time, a canine officer had arrived; the drug detection dog performed a search of the vehicle and alerted to the front fender well. Kasun knew “that Ford products have a natural structural void underneath the windshield cowling.” Based on his knowledge, the drug dog's alert to the car, and his identification of fresh spray paint and glue on the dash, Kasun removed the windshield to access the “void,” and found three plastic containers containing a total of 2.5 pounds of methamphetamine. On the floorboard behind the passenger seat, Kasun found a screwdriver that looked as if it had been “filed down to be used more as a pry bar,” with fresh glue on it “consistent with the glue that was on the windshield,” and a set of latex gloves.

¶ 6 Kasun arrested the two men. Following the arrest, Kasun and Detective Audsley (“Audsley”) questioned Gonzalez. During questioning, Gonzalez denied knowing any illegal drugs were in the car. Gonzalez stated he was suspicious that there was something in the vehicle, and so he had asked Pinzon “five or six times” whether there was anything illegal in the car. Each time Gonzalez asked this question, Pinzon denied that there were any drugs in the vehicle. Despite Pinzon's repeated denials, Gonzalez thought that Pinzon might be aware that there were drugs in the vehicle, and thought that Pinzon may have lied to him.

¶ 7 Both Pinzon and Gonzalez were charged with possession of drug paraphernalia and transportation of dangerous drugs for sale. Separate trials were held for each defendant. The jury acquitted Gonzalez of possession of drug paraphernalia, but convicted him of transportation of dangerous drugs for sale, and the court sentenced him to a mitigated term of five years in prison. Gonzalez timely appealed.

Discussion

I. Modus Operandi /Drug Courier Profile Evidence

¶ 8 To prove its case at trial, the State had to show that Gonzalez knew there was methamphetamine in the vehicle, and that it was being transported for sale. Ariz. Rev. Stat. (“A.R.S.”) §§ 13–3407(A)(7) (“A person shall not knowingly: ... Transport for sale ... a dangerous drug.”), 13–105(10)(b) (2010). Gonzalez's defense was that he had no knowledge of the methamphetamine in the vehicle. As circumstantial evidence of Gonzalez's knowledge, the State introduced the testimony of Sergeant Manera (“Manera”). He testified that drug-trafficking organizations, like legitimate businesses, have a profit motive, and do not “typically” entrust $112,000 ³ worth of their drugs to an “unknowing transporter” because “[t]hey need to know that that person can be trusted and that it's going to make it from point A to point B, and that somebody's not going to drive off with it, or they're not going to not deliver it.”

¶ 9 Before trial, counsel for Gonzalez agreed that Manera's testimony was not the type of “drug courier profile evidence” that was inadmissible at trial. She also stated she would not object to its admission as long as the State offered sufficient foundation. The court denied the State's pretrial motion to admit this testimony as premature, and ruled that its admissibility would “be determined by relevance and foundation and other matters that will have to be established at the time that the evidence is sought to be presented at trial.” When Manera testified at trial, the only objection made by Gonzalez's counsel was that the State was leading the witness.

¶ 10 On appeal, Gonzalez argues the trial court erred by admitting Manera's “drug courier profile evidence.” Because Gonzalez failed to object to this testimony at trial, and in fact conceded before trial that it was not “drug courtier profile evidence,” we review this claim of error for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). On fundamental error review, appellant has the burden to show error, that the error was fundamental, and that he was prejudiced thereby. Id. at 567–68, ¶¶ 20, 22, 115 P.3d at 607–08.

A. Drug Courier Profile Evidence

¶ 11 On appeal, Gonzalez incorrectly characterizes Manera's testimony as “drug courier profile” evidence. Drug courier profile evidence is “an ‘informal compilation of characteristics' ... typically displayed by persons trafficking in illegal drugs.” State v. Lee, 191 Ariz. 542, 544, ¶ 10, 959 P.2d 799, 801 (1998) (citing Reid v. Georgia, 448 U.S. 438, 440–41, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)); see also United States v. Cordoba, 104 F.3d 225, 229–30 (9th Cir.1997). For example, in Lee the drug courier profile evidence focused on the fact that defendant was carrying a hard-sided plastic suitcase; taking a flight to Chicago, which was known as a “very high demand area for shipment of illegal drugs from Arizona”; and had checked in late for his flight, a common practice of people transporting drugs from the Phoenix airport. Lee, 191 Ariz. at 545, ¶ 13, 959 P.2d at 802. As the court noted in Lee, drug courier profile evidence may be properly admitted at a suppression hearing to determine whether reasonable suspicion exists for a stop. Id. at ¶ 11.

¶ 12 Drug courier profile evidence, however, is inadmissible at trial as substantive evidence of a defendant's guilt. Id. at 545–46, ¶¶ 14–18, 959 P.2d at 802–03. In Lee, the court held that such evidence is unduly prejudicial because it impermissibly suggests to the jury that “because someone shares characteristics—many of them innocent and commonplace—with a certain type of offender, that individual must also” be guilty. Id. at 545, ¶¶ 12, 14, 959 P.2d at 802;see State v. Cifuentes, 171 Ariz. 257, 257, 830 P.2d 469, 469 (App.1991) (stating that the “use of profile evidence to indicate guilt ... creates too high a risk that a defendant will be convicted not for what he did but for what others are doing”); State v. Walker, 181 Ariz. 475, 481, 891 P.2d 942, 948 (App.1995) (citing cases from several jurisdictions that have “condemned” the use of drug courier profile evidence as substantive proof of guilt).

B. Modus Operandi Evidence

¶ 13 Expert testimony that drug traffickers do not entrust large quantities of drugs to unknowing transporters is not drug courier profile evidence, but rather, is modus operandi evidence. See Cordoba, 104 F.3d at 230. Unlike drug courier profile evidence, modus operandi evidence is not admitted to prove that a defendant is guilty because he fits “the characteristics of a certain drug courier profile,” but is properly admitted to assist the jury in understanding the modus operandi of a drug trafficking organization. Id. Our Supreme Court recognized in Lee that such expert testimony may be admissible to explain a drug trafficking organization's modus operandi. Lee, 191 Ariz. at 545, ¶ 11, 959 P.2d at 802;see also State v. Salazar, 27 Ariz.App. 620, 624–25, 557 P.2d 552, 556–57 (1976) (holding that expert testimony describing the common counter-surveillance techniques of narcotics dealers was admissible).

¶ 14 Several other courts have recognized the distinction between drug courier profile evidence, which is inadmissible as substantive evidence of guilt, and modus...