Court of Appeals of Arizona, First Division, Department B
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-007637-001 The Honorable Susan M. Brnovich, Judge
Thomas C. Horne, Attorney General, Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Robert A. Walsh, Assistant Attorney General Attorneys for Appellee
James J. Haas, Maricopa County Public Defender, Cory Engle, Deputy Public Defender Attorneys for Appellant
ANDREW W. GOULD, Judge
¶1 Harold Lezil Stuart ("Stuart") appeals from his conviction and sentence for illegally conducting an enterprise and money laundering, both class three felonies. Stuart's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this Court that after a search of the entire appellate record, no arguable ground exists for reversal. We ordered additional briefing pursuant to Penson v. Ohio, 488 U.S. 75 (1988), as to whether Sergeant Mason's testimony constituted inadmissible drug courier profile evidence regarding the ultimate issue of Defendant's guilt in violation of the principles contained in State v. Lee, 191 Ariz. 542, 959 P.2d 799 (1988). For the purposes of discussion, we have divided this query into two separate issues: (1) whether Sgt. Mason improperly testified regarded the ultimate issue of Defendant's guilt, and (2) whether Sgt. Mason's testimony constituted improper "drug courier profile" testimony in violation of the principles contained in Lee. Because we find reversible error as to the first issue, we do not reach the second issue.
Facts and Procedural History
¶2Stuart was driving a large semi-truck when he was pulled over by a police officer who had noticed an equipment violation. The police officer thought that Stuart seemed very nervous and asked if Stuart would consent to a search of the truck. Stuart agreed. Before beginning the search, the police officer asked Stuart whether large amounts of U.S. currency were in the vehicle. Stuart replied negatively, although he averted his eyes when responding to the question.
¶3 Inside the truck, police officers found three cell phones, financial papers belonging to Stuart, and a duffle bag containing approximately $170, 000 wrapped in several packages of yellow duct tape. The duffel bag was found underneath the sleeping bunk, and Stuart said he did not know anything about it. A drug-sniffing dog alerted to the presence of drug residue on the money, and Stuart's fingerprints were found on the yellow wrapping.
¶4 Stuart was arrested and charged with illegally conducting an enterprise and money laundering, both class three felonies.
¶5 Prior to trial, Stuart moved in limine to exclude Sgt. Mason's expert testimony because it was not sufficiently reliable to be admissible as expert testimony under Rule of Evidence 702. In this motion, he also objected to Sgt. Mason offering expert testimony regarding the ultimate issue of guilt: "it is well settled that 'generally a witness may not indicate his belief in [the] defendant's guilt." Motion at 4, quoting State v. Williams, 133 Ariz. 220, 229, (1982). The superior court denied this motion.
¶6 At trial, Sgt. Mason testified as an expert on the subject of illegal drugs and narcotics trafficking. Sgt. Mason stated that he had received advanced training in drug and racketeering investigations, and that he taught money laundering classes for the Department of Justice. He explained that he considered Arizona a gateway for narcotics to be smuggled from Mexico and South America into the United States, and that the price of any given drug increases as the drug is moved east. Mason further explained that because it would be risky to place large amounts of cash for the drugs in a bank, the typical practice was for the proceeds of such transactions to be converted into high denomination bills and transported back to organizational leaders in Arizona and Mexico.
¶7 Mason also explained that it was a typical practice to wrap bulk cash from these transactions in several layers of cellophane, plastic bags, and tape to prevent drug detection dogs from sensing the odor of drugs commingled with the money, and that the wrapping in this case was consistent with "hundreds of investigations in the past." Mason noted that it would be unusual to find both drugs and money in the same vehicle unless they were in a small quantity "in some kind of parking lot transaction."
¶8 He further testified that it was significant that the money was found in a duffel bag under the bunk rather than a void or hidden compartment within the truck. Mason explained that it is typical for drug organizations who do not trust their drivers to hide money or contraband so that the driver does not know where it is, and the fact that it was not hidden in this ...