State v. Cortes-Guerrero

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. CARLOS ESTEBAN CORTES-GUERRERO, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 01/25/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0764 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-107431-003 SE The Honorable Steven P. Lynch, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Hock Law Group, L.L.C. By Alan R. Hock Attorney for Appellant B R O W N, Judge Phoenix ¶1 Carlos Cortes-Guerrero ( Defendant ) appeals from his convictions on four dangerous drugs. counts of sale or transportation of He maintains that the trial court erred by denying his challenge for cause of a prospective juror, failing to address a violation of the witness exclusionary rule, and conducting the trial in his absence. For the reasons that follow, we affirm. BACKGROUND 1 ¶2 In undercover early Officer restaurant. January M. to 2007, an Defendant, informant who worked introduced at a Mesa Defendant told Officer M. if he called him or came in to the restaurant, he could hook him up with either goods or powder, which Officer M. understood to mean methamphetamine and cocaine. ¶3 restaurant Officer and M. testified inquire if that Defendant he was would working. go to the When the Defendant came to his table, Officer M. would order a dozen wings, [and] a Coke and say something like, I need a half ounce of goods. He would pay Defendant $350 right then for the methamphetamine, and Defendant would tell him it would take about twenty minutes. In Officer M. s experience, this response 1 We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 indicated that Defendant did not have the drugs himself, but needed to get them from someone with whom Defendant most likely split the profits. ¶4 The Defendant food would Officer M. Officer M. and drink return and with telling bought a would a him Styrofoam that small arrive Later, cup, handing goods the baggie first. were with 13.58 it to inside. grams of methamphetamine on January 9, 13.27 grams on January 17, and 13.62 grams on January 23. ¶5 On bills marked January to 31, Officer purchase M. one gave ounce Defendant of $700 in methamphetamine. Defendant returned shortly with a cup containing 27.03 grams of methamphetamine. He was arrested a short time later, and was in possession of $200 of the $700 given him by Officer M., and a baggie containing Defendant with dangerous drugs and one sale. 2.54 four grams counts of of the (methamphetamine) count of possession cocaine. of sale above The or the narcotic State charged transportation threshold drugs of amount, (cocaine) for A jury found Defendant guilty of four counts of sale or transportation of dangerous drugs but acquitted him of the fifth count, possession of narcotic drugs for sale. The trial court sentenced the Defendant to four concurrent six-year mitigated terms in prison. Defendant timely appealed. 3 DISCUSSION I. ¶6 Failure to Excuse Juror 32 During voir dire, the trial court asked the jury panel whether any of them had any relatives or close friends who had ever been arrested, charged, or convicted of any type of crime other than a minor traffic offense. The following exchange occurred: JUROR # 32: I have a nephew that was arrested for drug use; and I also have a brother-in-law that s been put in jail for DUI cases. THE COURT: Anything about this (sic) experiences do you think would affect your ability to be fair in this case? JUROR # 32: I d have to say yes because of the relationship. THE COURT: Well, that s fair. For example, do you think either of them was treated unfairly by the system? JUROR # 32: THE COURT: JUROR # 32: I don t know. But you are not sure? (No response.) When the trial court completed its questioning, it permitted the prosecutor and defense counsel to ask additional questions. The prosecutor asked the jurors some questions; defense counsel did not. ¶7 After the trial court recessed the prospective jurors to finalize the panel, the court made a list of jurors to be 4 dismissed for cause. Defense counsel asked to be allowed some follow-up questions with Juror 32 because he was not so sure whether [he] would be fair and impartial. The trial court denied defense counsel s request, noting that counsel had chosen to forego the opportunity to question him during voir dire. ¶8 Though defense counsel was concerned about Juror 32, the prosecutor argued that Juror 32 thought that both family members were treated fairly and that she had nothing noted that indicated the juror said he would not be able to be fair and impartial. The prosecutor was concerned that Juror 15 had a previous negative experience with law enforcement and was unsure whether he could be fair, while defense counsel argued that he said he could. After considering the matter further, the trial court decided to keep both jurors, explaining 32 really sort of thought that he would be okay. The court did strike sixteen other jurors for cause. ¶9 The peremptory record. court strikes, directed and the the parties process was to make completed their off the The prosecutor struck Juror 15 but the defense did not strike Juror 32, who was seated on the jury panel and ultimately participated in the deliberations and verdicts. ¶10 On appeal, Defendant argues that the failure to dismiss Juror 32 is reversible error. 5 trial court s He has waived this argument, however, by failing to use one of his peremptory strikes to remove Juror 32. ¶11 214, In State v. Rubio, 219 Ariz. 177, 181, ¶ 12, 195 P.3d 218 (App. 2008), we adopted the cure-or-waive rule, holding that when an error occurs in the jury selection process and the trial court fails to eliminate a potentially biased or unqualified juror, a defendant is required to use an available peremptory strike to remove the objectionable juror to preserve the issue for appeal. We noted that defense counsel is in the best position to correct any error by the trial court in denying a challenge for cause by striking the juror and thereby avoiding a new trial. Id. at 180, ¶ 10, 195 P.3d at 217. Additionally, we noted that defense counsel should not be encouraged to allow a demonstrably biased juror to remain on the jury deliberately exposing his or her client to the risk of an unfair trial and then obtain a reversal if the outcome is unfavorable. Id. (citation omitted). ¶12 not Here, as in Rubio, although Defendant s attorney did create the alleged opportunity to correct it. error, he had both the means Id. at 181, ¶ 13, 195 P.3d 218. and At the very least, defense counsel could have questioned Juror 32 further about his responses to the trial during voir dire, but he declined to do so. court s questions In any event, by choosing to use his six peremptory strikes to eliminate jurors 6 that he did not challenge for cause and passing the panel with Juror 32 seated, Defendant has waived any error in the trial court s denial of his for-cause challenge to Juror 32. II. ¶13 that Violation of the Rule of Exclusion Defendant argues that the trial court incorrectly held the exclusionary rule applied only after a witness had testified and that the court s refusal to address a potential violation of the rule in this case was the equivalent of a denial of his motion to exclude. He contends that the court abused its discretion by not conducting a hearing to determine the extent of the violation and that we must presume prejudice and reverse. ¶14 Arizona Rule of Criminal Procedure 9.3(a) provides in relevant part that, at the request of either party, the trial court shall[] exclude prospective witnesses from the courtroom during opening statements and the testimony of other witnesses and also direct them not to communicate with each other until all have testified. However, the admission of a witness s testimony after a violation of Rule 9.3 remains within the trial court s discretion. State v. Gulbrandson, 184 Ariz. 46, 63, 906 P.2d 579, 596 (1995). Reversal on appeal is proper only when a defendant shows an abuse of discretion by the trial court and resulting prejudice. State v. Perkins, 141 Ariz. 278, 294, 686 P.2d 1248, 1264 (1984), overruled on other grounds by State v. 7 Noble, 152 Ariz. 284, 731 P.2d 1228 (1987). To establish prejudice, a defendant must show that a witness s testimony was obtained by coercion or intimidation or that witnesses were induced to testify falsely or share information in order to have their stories conform. Gulbrandson, 184 Ariz. at 64, 906 P.2d at 597. ¶15 Prior to the start of the trial testimony, defense counsel invoked courtroom. Rule 9.3 to exclude witnesses from the After the State s opening statement, defense counsel informed the trial court that he had observed Officer [Officer M.] and another officer sitting next to each other on the bench outside the courtroom, and they were going over some documents that had Tempe I m assuming, Tempe Police Department records. Counsel stated that he just wanted to clarify and make it clear to the State to determine if they were actually discussing the case when they were asked not to discuss the case. ¶16 offered The yet, precluded trial court so did from it talking stated not about that believe the no that case testimony the because had been witnesses were the only rule precluded witnesses from talking about the substance of their testimony after they have testified. Defense counsel replied, That s fine, Your Honor, and no further action was taken. ¶17 witnesses. Officer M. and Officer B. were the State s principal When each had completed 8 his testimony, defense counsel again raised the issue, stating that he had reviewed Rule 9.3 precluded opening and from his understanding discussing statement. The the was case trial that once court the the noted officers State defense were gave its counsel s concerns but stated that counsel was not able to explain to the Court that [he] actually [heard] them talking about the case or that anything improper was done by either officer. The trial court counsel s did not question the officers about defense observation. ¶18 Though Defendant argues that the trial court had an obligation to question the officers about whether they discussed the facts of this case, it was his burden to show that the officers had violated the rule. Id. at 63, 906 P.2d at 596. Here, defense counsel simply assumed that the documents he saw were records related to his case and that the officers were talking about it. ¶19 Furthermore, defense counsel had the opportunity to cross-examine both officers about a possible rule violation and did not do so. Counsel therefore failed to establish for the court that anything improper was done by the officers. See State v. Reyes, 146 Ariz. 131, 134, 704 P.2d 261, 264 (App. 1985) (holding that counsel who declined the opportunity to cross-examine witnesses about the nature of a conversation and 9 thus provide information to the trial court cannot complain of the court s inaction on appeal). ¶20 Even if Defendant had established a violation, in State v. Schlaefli, our supreme court noted that, while in most cases a violation contempt of proceedings credibility, it the and did Ariz. 92, officer 612 on P.2d admitted on might would not incompetent to testify. (1977), overruled rule subject certainly render the a witness affect his witness or to her completely 117 Ariz. 1, 4, 570 P.2d 772, 775 other 1055 grounds by In (1980). State Schlaefli, cross-examination that v. he Roberts, one and 126 police another officer had reviewed a police report and discussed the facts of the case even though they knew that Rule 9.3 had been invoked. Id. at 3, 570 P.2d at 774. rule, abused the supreme its mistrial. court Despite this clear violation of the found discretion in that denying Id. at 4, 570 P.2d at 775. the trial court defendant s had motion not for The court concluded that the defendant had failed to establish prejudice because the officers testimony was not any inkling of collusion. identical, Id. presumably dispelling The same reasoning applies in the present case. ¶21 facts Here, even assuming that the officers did discuss the of the case, the testimony given was not duplicative. Officer M. testified about his negotiations with Defendant and 10 the four in-person drug transactions. Officer B. was present for the final buy only and testified about his observations of Defendant s actions on that occasion as well as his subsequent arrest and search of Defendant when Officer M. was not present. ¶22 Defendant relies on our supreme court s decision in State v. Roberts, 126 Ariz. 92, 94, 612 P.2d 1055, 1058 (1980), to argue that we must presume that prejudice occurred in this case because of the violation of the rule. However, Roberts stands for the proposition that a judge may not deny counsel s request to invoke the exclusionary presumption of prejudice. 686 P.2d 1248, 1264 rule or there will be a State v. Perkins, 141 Ariz. 278, 294, (1984) ( Roberts . . . concerns the situation in which a court refuses a party s request to invoke the rule, and not the situation in which the rule is invoked and then violated by a witness. ). The present case does not involve the denial of a request to invoke Rule 9.3 and thus Roberts does not apply here. Our review of the record reveals no abuse of discretion by the trial court and no prejudice to Defendant. III. ¶23 We Trial in Absentia often review a trial court s determination to proceed in absentia based on its finding that a defendant has voluntarily discretion. absented himself from trial for an abuse of State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 11 P.2d 1353, 1354 was no objection in the record to the trial proceeding in absentia. We therefore v. only (App. 1996). review for Here however, fundamental there error. State Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Our first determination committed some error. must be whether Id. at ¶ 20. the trial court Here we find the trial court committed no error, let alone fundamental error. ¶24 The court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward in his or her absence should he or she fail to appear. Ariz. R. Crim. P. 9.1; see also Muniz-Caudillo, 185 Ariz. at 262, 914 P.2d at 1354. ¶25 Defendant argues that the trial court abused its discretion because it made no finding he was voluntarily absent, and made no record that he was advised of the time of the proceeding and warned that the trial would go forward without him. We disagree. ¶26 The record shows that Defendant notice of the trial date more than once. court at an initial pretrial received adequate He was advised by the conference that his failure to appear at a status conference or trial MAY RESULT IN A BENCH WARRANT BEING ISSUED FOR HIS OR HER ARREST AND THE [FINAL TRIAL MANAGEMENT CONFERENCE] AND TRIAL 12 BEING CONDUCTED IN THE [D]EFENDANT S ABSENCE. Defendant subsequently failed to appear for a trial management conference and a bench warrant was issued for his arrest. The bench warrant was later quashed and Defendant signed a superior court release order that contained an attachment with the following statement: WARNING TO THE DEFENDANT: You have a right to be present at all pretrial and trial proceedings concerning this case. If you fail to appear, a warrant will be issued for your arrest and the proceeding may go forward in your absence. The record also shows that Defendant was present in the courtroom when the firm trial date was calendared. ¶27 Defendant did not appear for trial. Defense counsel confirmed that he had valid contact numbers for Defendant, that he had made many efforts to contact him, and that he had left numerous messages on his voice mail to tell him about the date. The court noted that Defendant had been present at all prior court appearances. It therefore determined that Defendant had voluntarily absented himself from trial and proceeded with the trial in his absence. ¶28 Based on this record, the trial court committed no error in inferring that Defendant s absence was voluntary and in ordering that trial would proceed in his absence. 13 CONCLUSION ¶29 For the foregoing reasons, we affirm Defendant s convictions and sentences. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ___________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ ___________________________________ JOHN C. GEMMILL, Judge 14

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.