Opinion
2 CA-CR 2021-0033
02-18-2022
The State of Arizona, Appellee, v. Judith Lizzeth Loreto, Appellant.
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Law Office of Christian Ackerley PLLC, Phoenix By Christian C. Ackerley Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20120346002 The Honorable Richard S. Fields, Judge
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee
Law Office of Christian Ackerley PLLC, Phoenix By Christian C. Ackerley Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge
¶1 Judith Loreto appeals from her convictions and sentences for transporting or importing a dangerous drug for sale and using a minor in a drug offense. She contends the trial court erred by admitting drug courier profile evidence and conducting trial in her absence. She further asserts that, together, these errors were fundamental because they deprived her of the presumption of innocence. For the following reasons, we affirm Loreto's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Loreto. See State v. Garcia-Quintana, 234 Ariz. 267, n.1 (App. 2014). In January 2012, four girls living in Nogales, Mexico agreed to transport drugs into the United States. They were taken to a hotel room where they had bags of methamphetamine taped to their backs. Alex A., one of several men who had been in the hotel room, drove the girls to the United States border where, per his instructions, they crossed on foot and met him at a store in Nogales, Arizona.
¶3 After meeting the girls at the store, Alex gave one of the girls money to buy tickets for a shuttle to Tucson. Once the girls boarded the shuttle, Alex went back to the store where he met with Loreto and spoke with her. Loreto subsequently purchased a shuttle ticket and boarded the same shuttle as the girls. Without introducing herself, she handed the girls sodas and told them she had been sent to them. She instructed them to get off the shuttle wherever she did.
¶4 Alex followed the shuttle in his car. At Loreto's request, theshuttle stopped at a gas station in Tucson. She got off the shuttle and again told the girls to get off with her. Loreto and the girls got into Alex's car, and he asked Loreto if her friend could "take care of the drugs for him like she did the time before." Loreto gave Alex directions to her friend's house. Once they arrived, Loreto instructed the girls to stay in the car, went to the house, and returned carrying a bag. She told Alex the occupant was not home but had agreed to take care of the drugs in exchange for $200.
¶5 With Loreto present, Alex told the girls to put the drugs in the bag. Loreto returned to the house and, after apparently spotting law enforcement surveillance, ran towards the backyard. Law enforcement officers seized over four pounds of methamphetamine, some from Alex's car and some still taped to the girls' backs. Loreto was subsequently arrested.
¶6 In February 2012, Loreto was arraigned. After failing to appear for two subsequent hearings, a warrant was issued for her arrest. In August 2012, trial proceeded in her absence. Loreto's defense at trial was that she was merely present and did not assist in transporting the drugs, emphasizing that no drugs or paraphernalia were found on her person. Additionally, she impeached the girls' testimony by presenting their plea offers, given in exchange for their testimony, and by arguing two of the girls had talked to each other since their arrest, even though they denied discussing the case. The jury found her guilty as charged in the indictment.
¶ 7More than eight years after her trial, the court sentenced Loreto to two concurrent five-year terms of imprisonment. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The state notes Loreto absconded and delayed sentencing for more than ninety days after trial which, under certain circumstances, can forfeit the right to appeal. See § 13-4033(C). However, the state agrees that the record here does not show that Loreto was warned she could lose her right to appeal. See State v. Bolding, 227 Ariz. 82, ¶ 20 (App. 2011). Moreover, the trial court did not make a finding at sentencing that Loreto had knowingly, intelligently, and voluntarily waived her right to appeal. See State v. Raffaele, 249 Ariz. 474, ¶ 15 (App. 2020). We therefore have jurisdiction pursuant to § 13-4033(A)(1).
Discussion
Drug Courier Profile Evidence
¶8 Loreto first contends the trial court erred by admitting impermissible drug courier profile testimony from two drug enforcement special agents. We review a court's admission of evidence for an abuse of discretion. See State v. Leteve, 237 Ariz. 516, ¶ 41 (2015).
¶9 At trial, Special Agents Fairbanks and Wheeler testified about how drug trafficking organizations operate and what they witnessed during their surveillance of Loreto. On appeal, Loreto contends portions of their testimony were improper drug courier profile evidence that "had the effect of influencing the jurors to find [her] guilty not on the basis of anything she did, but instead on the basis of what others did, specifically the four schoolgirl couriers." She also argues her objections at trial preserved this issue for harmless error review. The state contends there was no error and Loreto's objections did not properly preserve this issue, but even if there was preserved error, it was harmless. For the purposes of our analysis, we assume, without deciding, that Loreto preserved this issue for harmless error review. See State v. Hamilton, 177 Ariz. 403, 409 (App. 1993) (assuming without deciding issue preservation); State v. Henderson, 210 Ariz. 561, ¶ 18 (2005) (state's burden in harmless error review to show beyond a reasonable doubt the error did not contribute to or affect the verdict).
¶10 "Drug-courier profile evidence suggests that a defendant possesses one or more behavioral characteristics typically displayed by persons trafficking in illegal drugs." State v. Escalante, 245 Ariz. 135, ¶ 22 (2018). These profiles often informally compile characteristics based on the experience of officers that investigate drug activity. Garcia-Quintana, 234 Ariz. 267, ¶ 11. They may consist of a "wide variety of factors" such as demeanor, age, use of cash for purchases, attire, and using a specific type of transportation to and from certain locations. Id. A drug courier profile is inadmissible as substantive proof of guilt at trial because it "creates too high a risk that a defendant will be convicted not for what [she] did but for what others are doing." State v. Lee, 191 Ariz. 542, ¶ 12 (1998) (quoting State v. Cifuentes, 171 Ariz. 257, 257 (App. 1991)); Garcia-Quintana, 234 Ariz. 267, ¶ 12.
¶11 However, unlike drug courier profile evidence, evidence of the modus operandi of a drug trafficking organization may be admissible. Garcia-Quintana, 234 Ariz. 267, ¶ 13. "[M]odus operandi testimony is, at its core, generalized expert testimony about the patterns of a criminal organization, rather than testimony about the conduct of a defendant in a particular case." Id. ¶ 15. It can help the jury understand the patterns or methods used by a drug trafficking organization because "the role each person plays in committing the crime is most likely beyond the knowledge of the average juror." Id. ¶ 13. However, the testimony cannot compare the modus operandi of an organization "with the conduct of a defendant in a particular case" because it is up to the jury to decide if the "defendant's conduct fits within the modus operandi." Id. ¶ 14.
¶12 Special Agents Fairbanks' and Wheeler's testimony here was proper modus operandi evidence, not improper drug courier profile evidence. Agent Fairbanks discussed the reasons drug trafficking organizations hire couriers, that couriers have limited knowledge of the operation, that a member of the organization will regularly surveil the drugs without touching them, and that the organizations are highly compartmentalized to insulate those who are "higher up" from arrest. Similarly, Agent Wheeler described the hierarchy of drug trafficking organizations, that the organization is run like a business, that juveniles are used in operations, that couriers are provided with minimal information, that a "coordinator" is with the couriers and juveniles at all times to ensure the product reaches its final destination, that multiple coordinators are used, that higher-up members remain in the location of the origin of the drugs, that drug trafficking operations frequently use shuttles, and that many of the coordinators are "trusted family members" or have "been in the business for a long time," and therefore are less likely to cooperate with law enforcement.
¶13 Although both agents also testified to what they personally observed in this case, they did not improperly relate their testimony regarding these general patterns of drug trafficking organizations to Loreto's actions. Id. ¶ 23. Nor did they informally compile behavioral characteristics to demonstrate that Loreto's actions were consistent with that of a drug trafficker. See Escalante, 245 Ariz. 135, ¶¶ 24-25 (testimony that dryer sheets and coffee beans mask the smell of illegal drugs is permissible, but testimony that defendant's possession of dryer sheets and coffee beans is consistent with drug trafficking is inadmissible); see also Lee, 191 Ariz. 542, ¶ 16 (impermissible for witness to testify to significance of hard-sided versus soft-sided luggage, lack of identification on a bag, time of flight, gender and age of typical courier to create a profile of the defendant). Rather, the testimony "served to educate the jury about the methods and operations of drug trafficking organizations," Garcia-Quintana, 234 Ariz. 267, ¶ 23, and was directed at the drug trafficking operation, as opposed to Loreto's behavior. If the jury drew an inference that Loreto's actions fit within the modus operandi of a drug trafficking organization that was within their province. See id. ¶ 14.
¶14 But even assuming, without deciding, that a few of the agents' statements improperly "compared] the modus operandi of [a drug trafficking] organization with the conduct of [Loreto]," id., any error was harmless, see Henderson, 210 Ariz. 561, ¶ 18. The evidence showed that Loreto spoke with Alex prior to boarding the shuttle with the girls, and that once aboard the shuttle, she provided the girls with sodas, told them she had been sent to them, and instructed them to follow her when she got off the shuttle. After exiting the shuttle she then, with the girls, got into Alex's car, directed him to her friend's house, and told Alex her friend would store the drugs. She returned from her friend's house carrying a bag, and in her presence, Alex instructed the girls to put the drugs in the bag. After seeing law enforcement agents at the scene, Loreto ran to the backyard, evincing consciousness of guilt, and later told Agent Wheeler she "was afraid of being caught." See State v. Lujan, 124 Ariz. 365, 371 (1979). And when Wheeler asked Loreto what the bag was for, she responded, "I'm sure it was for the drugs that were found in the vehicle." In light of this evidence, the jurors would have necessarily drawn any inference that the agents may have improperly drawn for them, see Garcia-Quintana, 234 Ariz. 267, ¶ 14, and we are confident, beyond a reasonable doubt, that any error in the testimony did not contribute to or affect the verdicts here. See Henderson, 210 Ariz. 561, ¶ 18.
Trial in Absentia
¶15 Loreto next contends the trial court erred by conducting trial in her absence. We review a court's decision to proceed to trial in absentia for an abuse of discretion, see State v. Holm, 195 Ariz. 42, ¶ 2 (App. 1998), disapproved of on other grounds by State v. Estrada, 201 Ariz. 247, ¶¶ 12-14, 26 (2001), considering Loreto's absence in light of the whole record, see State v. Levato, 186 Ariz. 441, 445 (1996).
¶16 On February 6, 2012, Loreto appeared at her arraignment and the trial court advised her that her failure to appear in the future could result in trial proceeding in her absence. She signed an "Arraignment Order and Order Re Appointment of Attorney," which informed her that her next court date was a case management conference on March 26, 2012 at 9:00 a.m., and contained, among others, the following advisements:
The arraignment minute entry mistakenly stated that the case management conference was scheduled for April 26, 2012. On February 8, 2012, the minute entry was amended to reflect that the conference would occur on March 26, 2012. This change was consistent with the date reflected on the "Arraignment Order and Order Re Appointment of Attorney" that Loreto signed.
C. I KNOW MY FAILURE TO COMPLY WITH ANY OF MY RELEASE CONDITIONS, INCLUDING THE ABOVE, CAN CAUSE A WARRANT TO ISSUE FOR MY ARREST. I KNOW IF I FAIL TO APPEAR AT COURT THE COURT CASE AND ANY TRIAL CAN CONTINUE IN MY ABSENCE. D. I AGREE TO GIVE NOTICE OF ANY CHANGE OF MY ADDRESS, PHONE OR WORK TO THE COURT WITHIN FIVE (5) DAYS OF THE CHANGE. Loreto was then released on her own recognizance.
The state notes that, "Loreto also apparently received a copy of the 'Appearance Order with Release Conditions, '" which again advised that voluntary failure to appear could result in trial in her absence and that it was her responsibility to maintain contact with her lawyer. That document contains language indicating the defendant should receive a canary-colored copy, but was unsigned by Loreto, and there is no other indication in the record that she received a copy. Because we consider Loreto's absence in light of the whole record, Levato, 186 Ariz. at 445, and because the record is otherwise sufficient to support the trial court's decision, we need not consider this unsigned document.
¶17 Loreto failed to appear for the March conference, and it was reset to April 25, 2012. After again failing to appear for the April conference, a bench warrant issued for her arrest. Following additional nonappearances, and without objection by her counsel, Loreto was tried in absentia in August 2012.
¶18 On appeal, Loreto contends the trial court's decision to conduct her trial in absentia was an abuse of discretion because the court did not inquire about her whereabouts, her counsel and the court did not make efforts locate her, and there was no explanation for her absence in the record. The state counters that Loreto had notice trial could proceed in her absence if she failed to appear, and that "not a scintilla of evidence exists that her absence from her trial was involuntary." Because Loreto failed to object, we review for fundamental error only. See Henderson, 210 Ariz. 561, ¶¶ 19-20 (where no objection, defendant must show fundamental error and prejudice).
¶19 The United States and Arizona Constitutions protect a defendant's right to be present at trial. U.S. Const. amends. VI, XIV; Ariz. Const. art. II, § 24; Levato, 186 Ariz. at 443; see also Ariz. R. Crim. P. 19.2 (defendant has the "right to be present at every stage of the trial"). However, a defendant can voluntarily relinquish this right. State v. Garcia-Contreras, 191 Ariz. 144, ¶ 9 (1998); Ariz. R. Crim. P. 9.1 ("Except as otherwise provided in these rules, a defendant may waive the right to be present at any proceeding by voluntarily absenting . . . herself from it.").
We apply the rule in effect at the time of Loreto's trial. Rule 9.1 has since been amended and now reads,
Except for sentencing or as these rules otherwise provide, a defendant's voluntary absence waives the right to be present at any proceeding. The court may infer that a defendant's absence is voluntary if the defendant had actual notice of the date and time of the proceeding, notice of the right to be present, and notice that the proceeding would go forward in the defendant's absence.Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
¶20 "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 . . . her absence should . . . she fail to appear." Ariz. R. Crim. P. 9.1. This inference is rebuttable, State v. Sainz, 186 Ariz. 470, 473 (App. 1996), but the defendant bears the burden of rebutting it, State v. Bohn, 116 Ariz. 500, 503 (1977). The court is only required to determine whether the defendant's absence was, in fact, voluntary if asked. Sainz, 186 Ariz. at 473.
¶21 Here, as evidenced by the signed "Arraignment Order and Order Re Appointment of Attorney," Loreto had notice of the date and time of the subsequent proceeding, and was advised that if she failed to appear, trial could proceed in her absence. See State v. Pena, 25 Ariz.App. 80, 80-81 (1975) (warning in release order provided to defendant prior to preliminary hearing satisfied personal notice under Rule 9.1, notice not required after every continuance). The trial court's minute entry noted an advisement. Although Loreto was apparently not explicitly advised that she had the right to be present at subsequent hearings, the advisements that were provided implicitly suggested as much. Moreover, lack of notice of the right to be present does not necessarily prevent a finding of voluntary absence. See State ex rel. Romley v. Superior Court, 183 Ariz. 139, 144 (App. 1995); see also State v. Cook, 115 Ariz. 146, 149 (App. 1977) (Cook I) ("The pivotal question is whether the defendant waived his right to be present by his voluntary absence and Rule 9.1 merely suggests one combination of factors which may support an inference of voluntariness."), overruled on other grounds by State v. Fettis, 136 Ariz. 58, 59 (1983).
¶22 Loreto has not directed us to anywhere in the record, nor have we discovered in our own review, that she suggested her absence was involuntary. See State v. Suniga, 145 Ariz. 389, 392 (App. 1985) (where no evidence offered to suggest absence involuntary, trial court can infer voluntary absence); Bohn, 116 Ariz. at 503 (defendant's burden). Nor did she proffer that she had made inquiries or efforts to attend proceedings. To the contrary, the state highlights that the presentence report, documented Loreto having stated, "Prior to the trial, my lawyer said there was nothing much she could do for me and there would be a significant sentence. My children were very young; I was afraid they would not know who I was when I got out of prison." This statement suggests that, regardless of the trial date, Loreto did not intend to appear. See Romley, 183 Ariz. at 145 (defendant's escape "provided evidence of his intent not to appear at trial no matter when it was held"); see also State v. Sanderson, 182 Ariz. 534, 541 (App. 1995) (considering a presentence report and concluding "it is appropriate to examine the record following the defendant's apprehension to resolve the issue [of voluntariness]"); Suniga, 145 Ariz. at 392 (defendant's admission after trial bolstered the court's inference of voluntariness). For all these reasons, there is a sufficient record to make an inference of voluntariness, and we cannot conclude that the trial court abused its discretion in proceeding with Loreto's trial in absentia. Cumulative Error
Loreto devotes a significant portion of her brief to arguing that her case is similar to Cook I, 115 Ariz. 146. There, we remanded for the trial court to make findings on the voluntariness of defendant's absence, because defendant had been advised of a certain trial date, and that date later changed with no record as to whether defendant was aware of the change. Id. at 148-50; see also State v. Cook, 118 Ariz. 154, 155 (App. 1978) (Cook II) (determining after remand that defendant's absence was voluntary). However, Loreto's case is distinguishable from Cook I. As explained above, she was on notice of the correct date of the next hearing based on the signed "Arraignment Order and Order Re Appointment of Attorney." That the minute entry from her arraignment was incorrect, and later amended, does not change this fact. Cf. Romley, 183 Ariz. at 143 ("actual notice of a continued trial date is not a requisite to a finding of voluntary absence"). And unlike Cook I where the next court date following the defendant's arraignment was trial, 115 Ariz. at 149, Loreto had numerous hearings between arraignment and trial for which she failed to appear without explanation.
¶23 Loreto's final argument is that the errors alleged on appeal
cumulatively "remove[d her] presumption of innocence" resulting in fundamental error. The state contends this claim is not cognizable on appeal because our supreme court has rejected the cumulative error doctrine in criminal cases outside of the prosecutorial misconduct context. Having concluded the trial in absentia was not erroneous, and that any error with regard to the special agents' testimony was harmless, we need not reach this argument. Cf. State v. Thompson, No. CR-19-0141-AP, ¶ 85, 2022 WL 165928 (Ariz. Jan. 19, 2022) (where one instance of prosecutorial error occurred, no need to address cumulative error).
Disposition
¶24 For the foregoing reasons, we affirm Loreto's convictions and sentences.