Opinion
No. 2 CA-CR 2015-0070-PR
04-21-2015
THE STATE OF ARIZONA, Respondent, v. ALFREDO GONZALEZ, Petitioner.
COUNSEL Sheila Sullivan Polk, Yavapai County Attorney By Scott W. Blake, Deputy County Attorney, Prescott Counsel for Respondent Damon A. Rossi, Prescott Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Yavapai County
No. P1300CR201000867
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Sheila Sullivan Polk, Yavapai County Attorney
By Scott W. Blake, Deputy County Attorney, Prescott
Counsel for Respondent
Damon A. Rossi, Prescott
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 After a jury trial, petitioner Alfredo Gonzalez was convicted of transportation of dangerous drugs for sale and the trial court sentenced him to a five-year prison term. We affirmed his conviction and sentence on appeal. State v. Gonzalez, 229 Ariz. 550, 278 P.3d 328 (App. 2012); State v. Gonzalez, No. 1 CA-CR 11-0494 (memorandum decision filed Aug. 2, 2012). Gonzalez then sought post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., asserting trial counsel had rendered ineffective assistance. The court summarily denied relief, and this petition for review followed. Unless a trial court has abused its discretion in determining whether post-conviction relief is warranted, we will not disturb its ruling. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 To show ineffective assistance of counsel, the petitioner must show both deficient performance and resulting prejudice. See State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). That is, he must show that "if the allegations are true, [they] might have changed the outcome." State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). There is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles, 210 Ariz. 589, ¶ 20, 115 P.3d 629, 636 (App. 2005), which the defendant may overcome only by providing evidence that counsel's conduct did not comport with prevailing professional norms, see State v. Herrera, 183 Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995).
¶3 This matter arose from the discovery during a traffic stop of 2.5 pounds of methamphetamine hidden beneath the windshield of a vehicle in which Gonzalez was a passenger. Gonzalez, 229 Ariz. 550, ¶¶ 2, 5, 278 P.3d at 330. Gonzalez first maintains the trial court abused its discretion in rejecting his claim of ineffective assistance of counsel based on trial counsel's failure to conduct a pretrial interview of the state's expert witness, George Manera. Manera testified the street value of the methamphetamine seized from the vehicle was between $108,000 and $112,000; individuals transporting drugs for drug-trafficking organizations "[t]ypically" are aware drugs are being transported; and, drug-trafficking organizations will not entrust drugs to "unknowing transporters" in light of the large amount of money involved. On cross-examination, Manera testified that a "mule is the transportation portion of the [drug-trafficking] organization. They deliver the product from point A to point B at the request of the drug-trafficking organization." However, Manera denied having heard the term "blind mule," and explained that although an individual who transports drugs may not know the type or quantity of drugs he is transporting, he knows he is transporting drugs and is "made aware that what [he is] doing is typically illegal."
The vehicle was driven by Jose Arenas-Pinzon, who was tried separately from Gonzalez.
Gonzalez's attorney used this term to mean "somebody being asked to drive a vehicle without knowing that there were drugs in the vehicle."
¶4 Gonzalez asserts counsel's failure to anticipate Manera's testimony negatively impacted his defense that he had no knowledge drugs were in the vehicle. Had counsel interviewed Manera, Gonzalez maintains, she would have anticipated his denial of the existence of blind mules in drug cases and would have "perhaps secur[ed] her own expert" to testify on this issue. In its ruling denying post-conviction relief, the trial court determined the challenged evidence "either was properly admitted or [did] not . . . prejudice[] the outcome of the trial."
¶5 On appeal, we determined Manera's testimony was not drug-courier profile evidence, which is inadmissible as substantive evidence of guilt under State v. Lee, 191 Ariz. 542, ¶¶ 14-18, 959 P.2d 799, 802-03 (1998). See Gonzalez, 229 Ariz. 550, ¶¶ 11-16, 278 P.3d at 331-32. Instead, we decided it was properly admitted modus operandi evidence, admitted to help the jury understand how drug organizations "generally operate with respect to drug couriers." Id. ¶¶ 15-16. We also concluded Manera's testimony provided circumstantial evidence that Gonzalez knew that drugs were in the vehicle. Id. ¶ 8.
¶6 Notably, Gonzalez did not attach to his petition below the affidavit of a proffered expert regarding blind mules, nor did he attest to or provide support for his assertion that counsel's conduct did not comport with prevailing professional norms or that the outcome at trial would have been different if counsel had interviewed Manera or retained an expert. Because Gonzalez has not meaningfully supported a claim of ineffective assistance of counsel, we find no abuse of discretion in the trial court's denial of his claim. "Proof of ineffectiveness must be a demonstrable reality rather than a matter of speculation." State v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911, 919 (1984).
¶7 Gonzalez further contends counsel was ineffective because she failed to object to the state's playing the audio recording of co-defendant Jose Arenas-Pinzon's interview with the police, thereby violating Gonzalez's right to confrontation. He argues that permitting the jury to hear Pinzon's statement "urged the jury not to believe [Gonzalez's] story because it was inconsistent with Pinzon's." Gonzalez asserts, and the record supports, that Pinzon's statements were brought in "both" by the testimony of the officers who conducted the interview (Casey Kasun and Renee Audsley) and by playing the audio recording for the jury. Moreover, we note that counsel extensively cross-examined the officers about Pinzon's interview. Additionally, although counsel informed the trial court before the recording was played that "[i]t is not our intent to call Mr. Pinzon as our witness unless something is produced by the State that we need to rebut," she did not call Pinzon as a witness.
¶8 Gonzalez has not explained how he was prejudiced by Pinzon's absence, nor has he established how Pinzon's statements during the interview prejudiced him. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68. In fact, some of Pinzon's statements supported Gonzalez's defense that he was not aware there were drugs in the vehicle, a fact his attorney pointed out in her closing argument. This suggests counsel made a tactical decision to use Pinzon's statements to support Gonzalez's defense. In addressing a claim of ineffective assistance of counsel, we presume "counsel's conduct falls within the wide range of reasonable professional assistance" that "'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). "[D]isagreements about trial strategy will not support an ineffective assistance claim if 'the challenged conduct has some reasoned basis,' even if the tactics counsel adopts are unsuccessful." State v. Denz, 232 Ariz. 441, ¶ 7, 306 P.3d 98, 101 (App. 2013) (citation omitted), quoting State v. Gerlaugh, 144 Ariz. 449, 455, 698 P.2d 694, 700 (1985). Accordingly, we find no abuse of discretion in the trial court's denial of Gonzalez's ineffective assistance claim based on the confrontation violation.
For example, one of the officers testified that Pinzon had told him he had borrowed the vehicle from a friend and he had been paid to transport it.
--------
¶9 Finally, we reject Gonzalez's argument that counsel was ineffective for failing to object to improper drug-courier profile evidence from Kasun, the arresting officer. See Lee, 191 Ariz. 542, ¶ 10, 959 P.2d at 801 (drug courier profile evidence generally consists of "a loose assortment of general . . . characteristics and behaviors used by police officers to explain their reasons for stopping and questioning persons about possible illegal drug activity."). Gonzalez challenges the following testimony by Kasun: he had been trained as a drug-interdiction officer; he found it "unusual" that Gonzalez did not acknowledge Kasun during the traffic stop; Gonzalez initially did not make eye contact with Kasun and appeared "nervous," "distant," "guarded," and "uncomfortable"; and, although the interior of the vehicle was dirty, "the dash . . . was . . . very clean up on top [and] looked inconsistent with the rest [of the vehicle]." Gonzalez argues the admission of this evidence permitted the state to "mislead the jury on the sole issue in the case—whether [Gonzalez] actually knew about the methamphetamine."
¶10 In its ruling denying this claim, the trial court found that because this court had "already determined [on appeal] that the State did not present improper drug courier profile evidence, . . . counsel's failure to object was not error." As the state correctly points out in its response to the petition for review, Gonzalez mentioned Kasun's testimony only briefly in his petition below, primarily focusing instead on Manera's testimony, which this court had found on appeal was not drug-courier profile evidence. Additionally, without relevant citation to the record and having mentioned only Manera, Gonzalez generally asserted in his petition that "during the trial the State did elicit drug courier profile evidence" and that counsel's "failure to object to this particular testimony was inexcusable." This likely explains the court's finding that this court already had rejected the underlying issue on appeal.
¶11 In support of this argument in his petition below, Gonzalez further asserted that the admission of Kasun's testimony was prejudicial because "there was no other" evidence of his knowledge that drugs were in the vehicle. This argument, however, ignores our decision on appeal that Manera's testimony provided circumstantial evidence that Gonzalez knew there were drugs in the vehicle. See Gonzalez, 229 Ariz. 550, ¶ 8, 278 P.3d at 330-31. We also noted on appeal that Audsley, the officer who interviewed Pinzon and Gonzalez, and whose testimony Gonzalez unsuccessfully challenged on appeal, also had testified "that Gonzalez's body language [during the interview] raised her suspicion as to whether he was being truthful." Gonzalez, No. 1 CA-CR 11-0494, ¶ 5. Moreover, we concluded on appeal that Audsley's testimony was cumulative of statements elicited from Kasun. Id. ¶ 7.
¶12 Accordingly, even assuming without deciding that Kasun's testimony was improper, Gonzalez has failed to establish a showing of prejudice under Strickland. Although the trial court may not have expressly considered Kasun's testimony when it denied this claim, we nonetheless conclude its ruling was not an abuse of discretion. Cf. State v. Oakley, 180 Ariz. 34, 36, 881 P.2d 366, 368 (App. 1994) (appellate court "will affirm the trial court when it reaches the correct result even though it does so for the wrong reasons").
¶13 Although we grant the petition for review, we deny relief.