State v. Delgado

STATE OF ARIZONA, Appellee, v. LORENZO EDWARD DELGADO, Appellant.

No. 1 CA-CR 13-0179

ARIZONA COURT OF APPEALS DIVISION ONE

FILED: July 3, 2014

NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

Appeal from the Superior Court in Maricopa County

No. CR2011-129647-001

The Honorable Susanna C. Pineda, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix

By Frances J. Gray

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Donn Kessler joined.

JONES, Judge:

¶1 Defendant Lorenzo Delgado appeals convictions for aggravated assault and discharging a firearm at a non-residential structure. Delgado's defense counsel has searched the record on appeal and asserts having found no arguable question of law that is not frivolous. Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel asks this Court to search the record for fundamental error. Delgado filed a supplemental brief in propria persona.¹ After reviewing the record, we find no reversible error. Accordingly, Delgado's convictions and sentences are affirmed.

FACTS² AND PROCEDURAL HISTORY

¶2 On the evening of May 22, 2011, Delgado and a friend, Everrett S., patronized a night club. Eventually, the two men were asked to leave. Delgado stated, "I'll be back," and walked out of the establishment without further incident, while Everrett S. needed to be physically escorted from the building by security. Once outside, Delgado retrieved a gun from his vehicle, placed it in his back pocket, and walked towards the entrance of the night club. He then told a security guard, E.D., and the night club manager, "I got something for you. I got something for you." E.D. informed Delgado that the gun was unnecessary. At this point, Everrett S. approached Delgado and told him that, in reference to the night club, "They did me dirty," to which Delgado responded, "You know what time it is."

¶3 The two men then returned to their vehicle; Delgado entered on the driver's side and Everrett S. on the passenger side, and began to drive away. Less than a minute later, E.D., while standing near the night club's entrance, noticed the vehicle Delgado and Everrett S. had gotten into drive past, and a green laser, which he believed was attached to a gun, being pointed from the vehicle in his direction. Seeing the laser caused E.D. to remove his own gun from its holster because he believed he "was going to get shot." Several gun shots were then fired from that vehicle, with one striking E.D. in the head, and the vehicle then left the scene. While being cared for at the scene, E.D. physically described Delgado as the shooter.

¶4 Several weeks after the incident, the police received Delgado's name as a possible suspect. Based upon this information, the police developed a photo line-up, which was shown to multiple club employees, as well as E.D., who positively identified Delgado as a participant in the incident; E.D. specifically identified Delgado as the person who shot him.

¶5 Consequently, Delgado was indicted on two counts of attempted reckless second degree murder, charged as class two dangerous felonies (Counts 1 and 2); two counts of aggravated assault, class three dangerous felonies (Counts 3 and 4); one count of drive by shooting, a class two dangerous felony (Count 5); one count of misconduct involving weapons, a class four dangerous felony (Count 6); and one count of discharge of a firearm at a structure, a class three dangerous felony (Count 7).³,⁴ The State alleged Delgado had prior felony convictions and also alleged aggravating circumstances in addition to those prior convictions. Prior to trial, Count 6 was severed from the remaining counts.

¶6 Thereafter, a nine day jury trial commenced on Counts 1-5 and 7 in September 2012. Following the presentation of the State's case-in-chief, Delgado moved for acquittal under Arizona Rule of Criminal Procedure 20 on all counts except Counts 3 and 5. The trial court denied his motion as to Counts 4 and 7. With respect to Counts 1 and 2, defensecounsel argued, citing State v. Curry, 187 Ariz. 623, 627, 931 P.2d 1133, 1137 (App. 1996), that Arizona does not recognize an offense of "attempted reckless second degree murder" as the State had charged. In response, the trial court dismissed Counts 1 and 2 as a matter of law "without prejudice." Thereafter, the jury convicted Delgado of Counts 3 and 7, and further found those offenses to be dangerous offenses. The jury also found multiple aggravating circumstances for each convicted count. The jury, however, acquitted Delgado of Counts 4 and 5.

¶7 After the verdict, Delgado renewed his Rule 20 motion as to Count 7. He also moved for a new trial on Counts 3 and 7. The trial court denied both motions. Thereafter, in exchange for the State's agreeing not to further pursue attempted murder charges, Delgado pleaded guilty to the severed Count 6. Accordingly, the trial court sentenced Delgado as a repetitive offender to aggravated sentences of 18 years' imprisonment for Counts 3 and 7, and the presumptive sentence of 10 years' imprisonment for Count 6; the trial court ordered these sentences to run concurrently, and awarded Delgado 630 days of presentence incarceration credit. He then timely appealed his convictions for Counts 3 and 7 and timely applied for post-conviction relief for Count 6. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033 (A)(1) (2014).⁵

DISCUSSION

¶8 In his supplemental brief, Delgado raises three issues: (1) the admission of Everrett S.'s statement, "They did me dirty," was hearsay and violated his Sixth Amendment right to confront witnesses against him; (2) the jury was improperly instructed on Count 7; and (3) the trial court erred by dismissing Counts 1 and 2 without prejudice. We address each in turn.

I. Everrett S.'s Statement

¶9 Prior to trial, Delgado moved to preclude any testimony that shortly after being expelled from the night club Everrett S. said, "They did me dirty," unless Everrett S. testified at trial. The trial court allowed the statement to come in through other witnesses "to place Mr. Delgado's statement ["You know what time it is"] into some form of context."

Further, the court found the statement did not qualify as hearsay because "it's not to prove the truth of the matter asserted placed in some form of context." Delgado argues the statement was hearsay because Everrett S. was not called to testify, and therefore its admission violated the Confrontation Clause of the Sixth Amendment. We disagree.

¶10 Hearsay is "a statement that the declarant does not make while testifying at the current trial or hearing," and that "a party offers in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c)(1)-(2). In this instance, the offered statement made by Everrett S. was not hearsay, as it was not offered to prove the matter asserted in that statement - that the night club in fact wronged Everrett S. State v. Hernandez, 170 Ariz. 301, 306, 823 P.2d 1309, 1314 (App. 1991); Ariz. R. Evid. 801(c)(1)-(2). Rather, the statement was properly admitted to place Delgado's subsequent actions and statements into context. State v. Fischer, 219 Ariz. 408, 417, ¶ 33, 199 P.3d 663, 672 (App. 2008) (noting a statement admitted simply to show the statement was made is not hearsay); see Hernandez, 170 Ariz. at 306, 823 P.2d at 1314 ("Words offered to prove the effect on the hearer are admissible when they are offered to show their effect on one whose conduct is at issue."). As the statement was non-hearsay, the Confrontation Clause was not violated by its admission. State v. Rogovich, 188 Ariz. 38, 42, 932 P.2d 794, 798 (1997) ("Testimony not admitted to prove the truth of the matter asserted by an out-of-court declarant . . . does not violate the confrontation clause.").

¶11 Even assuming for the sake of argument that the statement was hearsay, its admission did not violate the Confrontation Clause. As stated by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), the Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination." Id. at 54-55, 68; see State v. King, 212 Ariz. 372, 376, ¶ 19, 132 P.3d 311, 315 (App. 2006). A statement is testimonial if "the declarant would reasonably expect it to be used prosecutorially or if it was made under circumstances that would lead an objective witness reasonably to believe the statement would be available for use at a later trial." State v. Parks, 211 Ariz. 19, 27, 116 P.3d 631, 639 (App. 2005). Here, Everrett S.'s statement was clearly not testimonial, and thus was not subject to the Confrontation Clause. As such, the trial court did not err in allowing its admission.

II. Jury Instruction

¶12 Delgado next argues the trial court committed error by giving an erroneous jury instruction. Delgado did not object to the jury instruction in the trial court, therefore we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). "To establish fundamental error, [Delgado] must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." State v. Fierro, 220 Ariz. 337, 340, ¶ 11, 206 P.3d 786, 789 (App. 2008) (quoting Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607). Delgado must also show the error prejudiced him. Id.

¶13 Count 7 charged...