State v. Delgado

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellant,

v.

ANTHONY LEON DELGADO, Appellee.

No. 1 CA-CR 21-0505
FILED 8-4-2022

Appeal from the Superior Court in Yuma County
No. S1400CR202100188
The Honorable Brandon S. Kinsey, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice M. Jones
Counsel for Appellant

Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock
Counsel for Appellee
 STATE v. DELGADO
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.

B A I L E Y, Judge:

¶1 The State of Arizona appeals the superior court’s order
dismissing with prejudice an indictment against Anthony Leon Delgado
based on the State’s violation of an order in limine. For the following
reasons, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶2 Delgado was indicted in February 2021 on one count of theft
for allegedly taking money from his employer.

¶3 The State had evidence that one of Delgado’s former
employers had suspected him of theft and fired him. Before trial, Delgado
moved for an order in limine to preclude evidence of Delgado’s “dismissal
from [his former employment],” based on Arizona Rule of Evidence 404’s
prohibition on admitting other acts evidence to prove a propensity to
commit the charged crime. See Ariz. R. Evid. 404(b)(1). The court granted
the motion in part, precluding only “the allegation of money being missing
[from Defendant’s prior employer] from any testimony to be presented to
the jury.” The order did not preclude evidence that Delgado’s former
employment had been terminated.

¶4 At trial, Delgado testified and when asked by his counsel how
he got a job with the victim employer, he stated:

Word of mouth. I was friends with the owner’s daughter and
I was looking for a change of pace in my current job and I
mentioned to her that I was looking for a change of pace and
she got me a job the next day.

¶5 On cross-examination, the prosecutor asked whether Delgado
testified that he had left his former employment “voluntarily.” Delgado’s
counsel objected and after a brief discussion, the court sustained the
objection. The prosecutor then asked Delgado to clarify whether his
testimony that he had left for a “change of pace” meant that he left

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Decision of the Court

voluntarily—to which Delgado answered, “Yes.” Defense counsel did not
object during this colloquy.

¶6 In the State’s rebuttal case, the prosecutor recalled the owner
of Delgado’s victim employer and asked whether Delgado had left his job
with the former employer voluntarily. Defense counsel timely objected,
before the witness could answer, and at a bench conference moved for a
mistrial. The court did not rule on the motion but stated, for the first time,
that “any evidence that he was fired from his job” was precluded as more
prejudicial than probative. See Ariz. R. Evid. 403. After an extended recess,
during which Delgado also asked that the charge be dismissed with
prejudice, the court granted the mistrial motion and dismissed the
indictment with prejudice, finding “that the question alone [whether
Delgado left his former employment voluntarily] is enough to taint the
jury.”

¶7 The State timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 13-4032(1).

DISCUSSION

¶8 We review the dismissal of an indictment with prejudice for
an abuse of discretion. State v. Trani, 200 Ariz. 383, 384, ¶ 5 (App. 2001).
“Generally, a court abuses its discretion where the record fails to provide
substantial support for its decision or the court commits an error of law in
reaching the decision.” Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001)
(citations omitted).

¶9 “Dismissal of a prosecution is without prejudice to
commencing another prosecution, unless the court finds that the interests
of justice require that the dismissal to be with prejudice.” Ariz. R. Crim. P.
16.4(d). “[A] mistrial based on prosecutorial misconduct generally does not
bar a later retrial” and “dismissal of an indictment with prejudice on the
ground of prosecutorial misconduct is rare.” Trani, 200 Ariz. at 384, ¶ 5
(quoting State v. Young, 149 Ariz. 580, 585 (App. 1986)). Prerequisite to such
a dismissal, the prosecution must engage in misconduct—“conduct that ‘is
not merely the result of legal error, negligence, mistake, or significant
impropriety, but, taken as a whole, amounts to intentional conduct which
the prosecutor knows to be improper and prejudicial.’” State v. Martinez, 221 Ariz. 383, 393, ¶ 36 (App. 2009) (quoting Pool v. Superior Ct., 139 Ariz.
98, 108-09 (1984)).

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¶10 The court did not expressly find that the interests of justice
required dismissal with prejudice but made other findings describing its
reasoning. See State v. Marquess, 168 Ariz. 123, 126 (App. 1991) (when the
court dismisses an indictment with prejudice, the interest of justice finding
may be implied). The court found that the prosecutor had been precluded
from admitting evidence about Delgado’s prior employment but sought to
do so anyway by questioning Delgado and then a rebuttal witness. The
court considered the jury “tainted” by the prosecutor’s unanswered
question of the rebuttal witness and found the prosecutor’s purported
conduct severe enough to warrant dismissal of the indictment with
prejudice after granting a mistrial.

¶11 The superior court erred by dismissing the indictment with
prejudice. In ordering dismissal, the court found “there were a number of
orders in this case that the parties were precluded from going into certain
issues, specifically the defendant’s prior employment . . . and we had a
hearing before trial began in which that was precluded.” The record does
not support this finding. The court’s order in limine precluded only
evidence that Delgado had left his former employer after being accused of
theft. The state did not err in challenging Delgado’s testimony that his
employment change was voluntary, as it was a proper subject for cross-
examination. See State v. Vargas, 251 Ariz. 157, 171, ¶ 44 (App. 2021)
(“[C]asting doubt on the credibility of witness testimony is a proper
purpose of cross-examination.”). The court’s order barring any evidence of
Delgado’s termination was issued only after the prosecutor questioned the
rebuttal witness.

¶12 Although Delgado had moved to preclude all evidence of his
previous dismissal, the court granted that motion only in part, twice (on the
record and in its written order) limiting the preclusion to “the allegation of
money being missing” from Delgado’s previous employer. It does not
follow that the prosecutor was then barred from impeaching Delgado on
his testimony that he left that employer because he was “looking for a
change of pace,” rather than because he had been terminated. Because the
prosecutor did not violate a court order soliciting such testimony, the
prosecutor did not commit misconduct.

¶13 Nor was the fact that the prosecutor asked the unanswered
question so inflammatory as to show intentional prejudicial and improper
conduct. In response to Delgado’s testimony that he had left his former
employment voluntarily, the prosecutor asked Delgado’s victim employer
if Delgado had left his former employment voluntarily. The question
appears to contemplate an answer of “yes,” “no” or “I don’t recall,” not a

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running narrative of why his former employment ended. The prosecutor
was entitled to impeach Delgado. See Ariz. R. Evid. 607. Even if the
unanswered question by itself justified a mistrial, an issue not challenged
in this appeal, the court did not find (and the record does not support) that
the asking of the unanswered question meant that justice required the
charge to be dismissed with prejudice under Rule 16.4(d).

¶14 “[A] motion for mistrial made by a defendant ordinarily will
remove any bar to reprosecution except in circumstances ‘attributable to
prosecutorial or judicial overreaching.’” State v. Marquez, 113 Ariz. 540, 542
(1976) (quoting United States v. Dinitz, 424 U.S. 600, 607 (1976)); accord
McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986). Because Delgado
requested the mistrial and no prosecutorial misconduct supports a
dismissal of the charge with prejudice, the superior court erred. See State v.
Adamson, 136 Ariz. 250, 263 (1983) (upholding denial of mistrial where one
improper question by prosecutor was not answered, was not part of a
pattern by the prosecutor, and any harm was cured by instruction).

CONCLUSION

¶15 We reverse the order dismissing the indictment with
prejudice and remand the matter for a new trial.

AMY M. WOOD • Clerk of the Court
FILED: AA

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