State v. Lee

• Decision Date: 28 May 1998
• Docket Number: No. CR-97-0100-PR,CR-97-0100-PR
• Citation: 191 Ariz. 542,959 P.2d 799
• Parties: , 270 Ariz. Adv. Rep. 67 STATE of Arizona, Appellee. v. Robert LEE, Appellant.
• Court: Arizona Supreme Court

Page 799

959 P.2d 799

191 Ariz. 542, 270 Ariz. Adv. Rep. 67

STATE of Arizona, Appellee. v. Robert LEE, Appellant.

No. CR-97-0100-PR.

Supreme Court of Arizona,

En Banc.

May 28, 1998.

Grant Woods, Attorney General by J.D. Nielsen, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Terry J. Adams, Deputy Public Defender, Phoenix, for Appellant.

OPINION

ZLAKET, Chief Justice.

¶1 Shortly before midnight on October 21, 1994, Robert Lee entered Terminal 3 at Phoenix Sky Harbor Airport carrying a fairly new, hard-sided suitcase. He stopped a few feet in front of the American Trans Air ticket counter and put the bag down. Moments later, Myrtis Harrison hurried into the terminal, walked directly to the counter, and purchased two tickets on a flight leaving within minutes for Chicago. Lee joined Harrison at the counter, setting the suitcase on the luggage stand.

¶2 An undercover officer with the Phoenix Commercial Drug Interdiction Unit noticed Lee's entrance into the terminal. The officer watched him for a few minutes and, when the suitcase had been checked and placed on the baggage conveyor, contacted another narcotics agent who had a dog trained to detect drugs. In the baggage area, the dog "alerted" to the suitcase. The detectives then seized the luggage and arrested both Lee and Harrison near the ticket counter. Harrison had in her possession the baggage claim check, and Lee had keys in his pocket that fit the luggage. After obtaining a search warrant, police opened the suitcase. Inside, along with a garment bag holding Harrison's clothing, were six heat-sealed plastic packages containing four kilograms of marijuana.

¶3 Harrison and Lee were each charged with possession for sale of marijuana weighing four pounds or more, and transportation for sale of marijuana weighing over two pounds, both class 2 felonies. Early in the proceedings, the state and the defendants agreed to a severance. Judge Peter D'Angelo granted their stipulated motion. About six months later, Harrison reversed her position and moved to consolidate the cases. The state opposed the motion because it had already offered Lee a plea agreement, the terms of which would have allowed him to plead guilty to a class 4 felony provided he testified at Harrison's trial. The state indicated that it would likely withdraw the plea offer if the motion to consolidate was granted. Judge D'Angelo denied the motion.

¶4 A few weeks later, on the eve of jury selection in Harrison's trial, Judge Paul Katz on his own initiative ordered the cases reconsolidated. The state withdrew Lee's plea offer and the defendants were tried together. The jury acquitted Harrison, but found Lee guilty on both counts. The court of appeals affirmed by memorandum decision.

CONSOLIDATION

¶5 Defendant claims that the trial court erred when it consolidated these cases because it interfered with a pending plea offer. We examine the record for a clear abuse of discretion. See State v. Kinkade, 140 Ariz. 91, 93, 680 P.2d 801, 803 (1984).

¶6 Defendants may be joined "by the court or upon motion of either party, provided that the ends of justice will not be defeated thereby." Ariz. R.Crim. P. 13.3(c) (emphasis added). Lee argues that following consolidation, the state no longer had any incentive to plea bargain and he was unfairly deprived of the opportunity to obtain a favorable deal. We observe, however, that a defendant is not entitled to a plea offer as a matter of right. See State v. Morse, 127 Ariz. 25, 31, 617 P.2d 1141, 1147 (1980). Plea bargaining is nothing more than a pragmatic tool for enhancing judicial economy, conserving state resources, and promoting justice. See id. at 32, 617 P.2d at 1148.

¶7 While the state and a defendant may negotiate over "any aspect" of a case, including sentencing, the trial court ultimately has authority to approve or reject a bargain in the interests of justice. See Ariz. R.Crim. P. 17.4(d). Such a decision falls within the judge's sound discretion, and wide latitude is permitted in this regard. See State v. De Nistor, 143 Ariz. 407, 411, 694 P.2d 237, 241 (1985).

¶8 The transcript of the pretrial hearing, in which Judge Katz raised reconsolidation on his own initiative, shows that he knew of the state's plea offer and recognized that if the cases were joined for trial, Lee would likely refuse to testify in order to avoid incriminating himself. He stated:

The State should either enter a plea agreement with Mr. Lee or it shouldn't .... if the State feels that its case against Mr. Lee is weak or deficient or the State feels that he is the less culpable defendant, if it in good faith believes that the plea agreement [that] has been offered to him ... is appropriate, it ought to be entered on the record of this court or the State is free to withdraw from it or Mr. Lee is free to withdraw from it.

¶9 The record indicates that Judge Katz complied with Rule 13.3(c). He reviewed the complete file, weighed the evidence advanced at the hearing, and considered the arguments of counsel. In the end, the judge found no "real articulable reason" or "legal ground" to maintain separate trials other than the creation of a favorable environment for Lee's plea agreement. We find no abuse of discretion.

DRUG COURIER PROFILE TESTIMONY

¶10 Defendant further asserts that the trial court erred in admitting drug courier profile testimony as substantive evidence of guilt. A drug courier profile is a loose assortment of general, often contradictory, characteristics and behaviors used by police officers to explain their reasons for stopping and questioning persons about possible illegal drug activity. See Mark J. Kadish, The Drug Courier Profile: In Planes, Trains, and Automobiles; And Now in the Jury Box, 46 Am. U.L.Rev. 747, 748 (1997). No nationally recognized profile exists, and law enforcement agencies, even individual officers, develop their own "profiles" based on experience. See id. Courts commonly describe drug courier profiles as an "informal compilation of characteristics" or an "abstract of characteristics" typically displayed by persons trafficking in illegal drugs. See Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); Florida v. Royer, 460 U.S. 491, 493, 103 S.Ct. 1319, 1322, 75 L.Ed.2d 229 (1983).

¶11 Generally, such profile evidence is offered in the context of suppression and probable cause hearings, where law enforcement's justification for a stop, arrest, or confiscation is at issue. See, e.g., Royer, 460 U.S. at 502, 103 S.Ct. at 1326 (noting that mannerisms and other characteristics matching a "drug courier profile" may be sufficient grounds for a brief investigative police stop). Increasingly, however, profiles have been used for other purposes: (1) as background for a police stop and search, see United States v. Gomez-Norena, 908 F.2d 497, 501 (9th Cir.1990) (finding no error in using a drug courier profile to provide jurors with a full portrayal of events surrounding arrest); (2) as foundation for expert opinions, see United States v. Webb, 115 F.3d 711, 715 (9th Cir.1997) (permitting drug courier profile testimony of police expert to assist jury in understanding why a person would conceal a weapon in the engine of a car); (3) to explain a method of operation, see United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1996) (approving the use of drug courier profile testimony to "assist the jury in understanding modus operandi in a complex criminal case"); and (4) as rebuttal evidence, see United States v. Beltran-Rios, 878 F.2d 1208, 1213 (9th Cir.1989) ("The Government may introduce profile testimony ... only to rebut specific attempts by the defense to suggest innocence based on the particular characteristics described in the profile.").

¶12 Notwithstanding these exceptions, a significant majority of jurisdictions have condemned the use of drug courier profile evidence as substantive proof of guilt. See State v. Walker, 181 Ariz. 475, 481, 891 P.2d 942, 948 (App.1995) (citing cases from the Fourth, Fifth, Eighth, Ninth, and Eleventh federal circuits, as well as various state courts). We agree with this position. As our court of appeals has stated in the context of car thefts, 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. Cifuentes, 171 Ariz. 257, 257, 830 P.2d 469, 469 (App.1991). This observation is particularly relevant to the case before us.

¶13 To obtain a conviction of possession or transportation for sale, the state had to prove that the defendant knew there was marijuana in the suitcase. See A.R.S. § 13-3405(A)(2)("A person shall not knowingly possess marijuana for sale."); A.R.S. § 13-3405(A)(4)("A person shall not knowingly transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana."). Under Arizona law and the jury instructions here, "knowingly" means having an awareness or belief of the conduct at issue. A.R.S. § 13-105(9)(b) (West Supp.1996) (formerly § 13-105(6)(b)). In attempting to prove such knowledge, the prosecutor elicited testimony from Officer Galbari, who said that she stopped Lee and Harrison because they were toting a "large hard-sided plastic suitcase," were taking the "last flight out to Chicago," a "very high demand area for the shipment of illegal drugs from Arizona," and "in my experience working at the airport for four years and contacting people that do have illegal drugs with them, they more often then not check in extremely late for their departing flights." The dog's positive alert subsequently supported the officer's suspicions.

¶14 The attorneys for both Harrison and Lee objected to the testimony and later moved to strike it. The state argued that the evidence was necessary to meet its burden of...