State v. Gonzalez

Annotate this Case

Download PDF

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ALFREDO GONZALEZ, ) ) Appellant. ) ) __________________________________) 1 CA-CR 11-0494 DIVISION ONE FILED: 06/12/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT A O P I N I O N Appeal from the Superior Court in Yavapai County Cause No. P1300CR201000867 The Honorable Tina R. Ainley, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee David Goldberg Attorney for Appellant Phoenix Fort Collins, CO G O U L D, Judge ¶1 Alfredo Gonzalez appeals his transportation of dangerous drugs for sale. that follow, we affirm. conviction for For the reasons 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 1 Appellant raised additional issues, which we have addressed in a separately filed memorandum decision pursuant to Arizona Rule of Civil Appellate Procedure 28(g). 2 We view the evidence in the light most favorable to supporting the conviction. State v. Moody, 208 Ariz. 424, 435, ¶ 2 n.1, 94 P.3d 1119, 1130 n.1 (2004). 2 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 permitting Kasun to search the vehicle. consent forms 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 3 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 Kasun arrested the two men. and Detective Audsley Following the arrest, ( 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. acquitted Gonzalez of possession of drug The jury 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 4 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 Gonzalez s . . . a defense dangerous was drug. ), that he methamphetamine in the vehicle. Gonzalez s knowledge, the State Sergeant Manera ( Manera ). had 13-105(10)(b) no knowledge (2010). of the As circumstantial evidence of introduced the testimony of He testified that drug-trafficking organizations, like legitimate businesses, have a profit motive, and do not typically entrust $112,0003 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 3 At trial, Manera testified that 2.5 methamphetamine has a street value of $112,500. 5 pounds of 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. profile evidence is an informal characteristics . . . typically trafficking in illegal drugs. displayed Drug courier compilation by of persons State v. Lee, 191 Ariz. 542, 544, ¶ 10, 959 P.2d 799, 801 (1998) (citing Reid v. Georgia, 448 U.S. 438, 440-41 (1980)); see also United States v. Cordoba, 104 F.3d 225, 229-30 (9th Cir. 1997). 6 For example, in Lee the drug courier profile evidence focused on the fact that defendant was carrying a hard-sided Chicago, which was plastic known suitcase; as a very taking high a demand flight to 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. at 802. As the Lee, 191 Ariz. at 545, ¶ 13, 959 P.2d 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 Walker, 181 Ariz. but for what 475, 481, others are doing ); 891 P.2d 942, 948 State v. (App. 1995) (citing cases from several jurisdictions that have condemned 7 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. evidence, but rather, See Cordoba, 104 F.3d at 230. is modus operandi Unlike drug courier profile evidence, modus operandi evidence is not admitted to prove that a defendant characteristics of a is guilty certain drug because courier he fits profile, the but is properly admitted to assist the jury in understanding the modus operandi of a drug trafficking organization. Court recognized in Lee that such expert Id. Our Supreme 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 operandi evidence, which is admissible. See United States v. Sepulveda-Barraza, 645 (9th F.3d 1066, 1072 Cir 8 2011) (holding that expert testimony on drug trafficking organizations and the behavior of unknowing couriers is admissible when relevant, probative of a defendant s knowledge, and not unfairly prejudicial ); United States v. Murillo, 255 F.3d 1169, 1176-78 (9th Cir. 2001) (stating that expert testimony of modus operandi of couriers in drug trafficking organizations is, unlike drug courier profile testimony, admissible expert testimony), overruled on other grounds as recognized in United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007); United States v. Campos, 217 F.3d 707, 712 (9th Cir. 2000) (same); United States v. Vasquez, 213 F.3d 425, 427 (8th Cir. 2000) (same). C. Manera s Testimony ¶15 Manera s testimony was admissible as modus operandi evidence; the testimony testimony was identical to the admitted in Cordoba, 104 F.3d at modus operandi 229-30. The testimony was not offered, as Gonzalez argues, to show that Gonzalez was guilty because he fit the characteristics of a certain drug courier profile. Rather, it was offered See Cordoba, 104 F.3d at 230. to show how drug trafficking organizations generally operate with respect to drug couriers; such organizations typically hire people they know and trust and do not commonly use unknowing drug couriers. This testimony provided circumstantial evidence of Gonzalez s knowledge of the 9 drugs in the car, a fact that went to the heart of Gonzalez s defense theory at trial. ¶16 See id. at 229-30. Manera s testimony was proper because it was limited to the general practices of drug organizations. He did not testify as to Gonzalez s awareness or knowledge of the drugs in the vehicle. Fuenning v. Superior Court, 139 Ariz. 590, 605, 680 P.2d 121, 136 (1983) (holding that a witness may not testify as to whether a defendant is innocent or guilty); Murillo, 255 F.3d at 1178 (stating that expert opinion testimony of officer regarding modus operandi was admissible where officer did not offer any explicit opinion of defendant s state of mind or knowledge of his transportation properly qualified his testimony. of drugs ). Manera also He did not testify that drug organizations never use unknowing couriers; rather, he testified that it is unlikely they would hire such couriers, and that they typically do not hire unknowing couriers. ¶17 In observed the defendant driving a vehicle on Interstate 5 in California. 255 F.3d at 1172. was driving Murillo, a highway patrol officer The officer noticed that Murillo, the defendant, too close to a tractor-trailer rig. Id. Eventually, the officer stopped defendant and cited him for a traffic violation. Id. During the traffic stop the defendant acted nervous and provided inconsistent, evasive details about his travel plans. Id. at 1172-73. 10 Murillo gave the officer consent to search the vehicle, and during the search the officer discovered two screws on the rear quarter panel that appeared to have been recently removed. Id. at 1173. A drug detection canine was called to the scene and alerted to the presence of drugs in the right rear quarter panel. Id. Inside the door panel the officer discovered 2.5 pounds of methamphetamine and 3.8 pounds of cocaine valued at over $1,000,000. Id. During an inventory search of the vehicle, officers found a wrench that fit one of the screws on the quarter panel; the officers also found a Phillips head drill bit in Murillo s pants that fit the remaining three screws on the door panel. Id. Murillo was charged with one count of possessing methamphetamine with intent to distribute, and one count of possessing cocaine with intent to distribute. ¶18 Id. at 1174. At trial, the sole issue was whether there were illegal drugs in the car. Murillo knew As circumstantial evidence of Murillo s knowledge, the state offered the testimony of DEA Special Agent testified as organizations: Delaney to ( Delaney ). the modus specifically, Id. operandi that at of drug 1176. drug Delaney trafficking traffickers do not entrust large quantities of drugs to people who are unaware that they are transporting them. on appeal, he asserted the Id. Murillo was found guilty, and trial court Delaney s drug courier profile testimony. 11 erred Id. by admitting ¶19 In affirming Murillo s conviction, the court stated that Delaney s profile testimony testimony, evidence. but was not inadmissible was admissible rather Id. at 1177-78. drug modus courier operandi The court held the testimony was relevant, going right to the heart of Murillo s defense that he was simply an unknowing courier. Id. at 1177. The court also noted that Delaney did not testify as to the defendant s state of mind, but limited his opinion to whether: (1) in his experience, drug traffickers entrusted thousands of dollars of drugs to couriers who did not know they were transporting them, and (2) why, in his experience, traffickers did not do so. Id. at 1178.4 Conclusion ¶20 For the foregoing reasons, in addition to those set forth in our separately filed memorandum decision, we affirm Gonzalez s conviction and sentence. /S/ __________________________________ Andrew W. Gould, Judge 4 Murillo also stands for the proposition that modus operandi evidence is admissible in non-complex cases; specifically, those cases where one or two couriers are in a vehicle containing illegal drugs. See Sepulveda-Barraza, 645 F.3d at 1070-72. We hold that modus operandi evidence is not limited to complex drug cases, and may be admitted in noncomplex, drug courier cases such as the present case. 12 CONCURRING: /S/ Maurice Portley, Presiding Judge /S/ Ann A. Scott Timmer, Judge 13

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.