NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
Appellee,
v.
MARTIN DELGADO,
Appellant.
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No.
1 CA-CR 10-0333
DIVISION ONE
FILED: 08/16/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-135506-001 DT
The Honorable Steven P. Lynch, Judge
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,
CORRECTED IN PART, AND REMANDED IN PART
Thomas C. Horne, Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
Maricopa County Public Defender’s Office
By
Louise Stark, Deputy Public Defender
Attorneys for Appellant
Phoenix
G E M M I L L, Judge
¶1
Martin
Delgado
appeals
from
his
convictions
and
sentences
for
criminal
trespass,
two
counts
assault, and one count of disorderly conduct.
of
aggravated
Delgado’s counsel
filed a brief in compliance with Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969),
stating
she
has
searched
the
record
and
found
no
arguable question of law, and requesting that this court examine
the
record
for
reversible
error.
Delgado
was
afforded
the
opportunity to file a supplemental brief in propria persona and
he has raised several issues that we have considered.
See State
v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999).
We affirm Delgado’s convictions and sentences on counts one,
two, and four; correct the minute entry on the sentence for
count four; and affirm the conviction on count five but remand
for resentencing on that count.
FACTS AND PROCEDURAL HISTORY
¶2
“We
therefrom
view
the
in
the
light
convictions.”
facts
and
most
all
reasonable
favorable
to
inferences
sustaining
the
State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d
668, 669 (App. 2001).
The following evidence was presented at
Delgado’s trial.
¶3
to
Around 11 a.m., on May 27, 2009, Martin Delgado went
an
apartment
pockets.
complex,
carrying
two
kitchen
knives
in
his
At that time, handicapped resident Robert, Robert’s
caregiver, and a van driver named Phillip, were returning from
2
Robert’s physical therapy appointment.
Phillip
unloaded
caretaker
wheeled
Robert
from
Robert
Debra, was sleeping.
After the caretaker and
the
van
his
apartment
into
in
a
wheelchair,
where
his
the
wife,
After wheeling Robert to his living room,
the caretaker turned around to close the door.
Delgado had come
into the apartment and was standing inside the doorway with his
hands in his pockets.
¶4
The
caretaker
Robert,
but
Delgado
asked
did
if
Delgado
not
say
was
there
anything.
to
see
Delgado,
expressionless and unresponsive, continued to stand inside the
apartment
even
though
the
caretaker,
repeatedly told him to leave.
Robert,
and
Debra
Through the still-open doorway,
Phillip, who had been back at the van re-loading a wheelchair,
noticed Delgado inside the living room.
¶5
Phillip
went
back
to
Delgado who was still inside.
the
apartment
and
approached
Phillip told Delgado he ought to
leave and that the police would be called soon because Delgado
did not belong in the apartment.
A silent Delgado finally left
the apartment and followed Phillip outside. Debra slammed the
door, locked it, and called 911.
¶6
Outside,
Phillip
warned
Delgado
the
probably on their way and that he ought to leave.
police
were
Phillip went
back to the van and Delgado followed him, asking for a ride.
Phillip
told
Delgado
that
a
ride
3
would
be
“against
company
policy,” and opened the van’s door.
Next, Phillip remembers
Delgado
cutting
“started
slashing”
at
him,
his
left
hand
severely enough to cause “gushing blood” to “right away blind”
him.
Phillip kicked at Delgado to defend himself, but Delgado
persisted in slashing at Phillip with the two kitchen knives
from his pockets.
¶7
Phillip was able to call out for help.
Delgado was distracted when a neighbor, Cameron, who
displayed a machete, appeared and shouted for Delgado to leave
Phillip alone, giving Phillip an opportunity to try to ready a
pocket knife he carried in his pants.
knife,
though,
because
he
had
“no
hands, “especially the left one.”
Phillip couldn’t use the
coordination”
in
both
his
As Delgado chased Cameron
away, Phillip got to his feet, leaving the pocket knife behind.
He banged on Robert’s door, and then made his way back to the
safety of the van where, once inside, he tried to call 911 on
his cell phone.
As with the pocket knife, Phillip tried to use
the cell phone, but “couldn’t with all the blood.”
¶8
Meanwhile,
another
neighbor,
Cedric,
heard
the
commotion, and came from his upstairs apartment telling Delgado
to leave Phillip and Cameron alone.
Delgado then chased Cedric
back upstairs, banging on his door and sticking his knife into
the metal screen door “trying to open it.”
Delgado then walked
downstairs
Robert’s
to
the
parking
lot,
Calvin, and asked him for his car.
4
finding
neighbor,
Calvin refused, and watched
as the police confronted, tased, and arrested Delgado.
Delgado,
who had braced himself for the tasing, fell nonetheless and hit
his head on the ground.
¶9
An ambulance transported Delgado to the hospital where
he was treated for injuries resulting from his fall.
ride
to
legs,”
the
hospital,
requiring
Delgado
EMTs
to
was
“tensing
“strap[]”
him
up
to
During the
his
the
arms
stretcher.
Delgado continued to “flex[] and resist[]” at the hospital.
nature
of
the
“under
the
charges
influence
against
of
Delgado,
meth,”
his
his
having
appearing
to
be
and
The
to
be
physically
restrained, and his non-compliance with any officers, EMTs, or
hospital staff, compelled the police to assign an officer to
stay with him at the hospital.
Later at the hospital, Delgado
charged at an officer (Officer S.) and punched him in the face.
¶10
In June 2009, Delgado was indicted on the following
five counts: count one, criminal trespass in the first degree, a
class six felony, as against Debra and Robert, in violation of
Arizona
Revised
Statutes
(“A.R.S.”)
section
13-1504
(2010);
counts two, three, and four, aggravated assault, a class three
dangerous felony, as against Phillip, Cedric, and Cameron, in
violation
of
A.R.S.
§
13-1204
(2010);
and,
count
five,
aggravated assault, a class six dangerous felony, as against
Officer S., in violation of A.R.S. § 13-1204.
¶1
A seven-day jury trial began on February 8, 2010.
5
The
jury
found
Delgado
guilty
of
criminal
trespass
in
the
first
degree; the aggravated assault of Phillip, a dangerous offense;
the
lesser-included
Cedric,
a
offense
offense;
dangerous
of
disorderly
and
the
conduct
aggravated
against
assault
of
Officer S.
The jury found Delgado not guilty of the aggravated
assault
Cameron,
of
nor
of
the
lesser-included
disorderly conduct against Cameron.
offense
of
The trial court imposed
slightly aggravated sentences for the convictions of criminal
trespass,
disorderly
conduct
against
Cedric,
and
aggravated
assault of Officer S.
The court ordered those sentences to run
concurrently
aggravated
with
an
sentence
for
the
aggravated
assault of Phillip, making Delgado’s sentences 15 years overall,
less 316 days of presentence incarceration credit.
¶2
Delgado
timely
appealed,
and
we
have
jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution,
and
A.R.S.
§§
12-120.21
(2003),
13-4031
(2010),
and
13-4033
(2010).
DISCUSSION
¶3
Having considered defense counsel’s brief and examined
the record for reversible error, see Leon, 104 Ariz. at 300, 451
P.2d at 881, we find none.
requests we
find
In his supplemental brief, Delgado
fundamental
error
based
on
errors
at
trial
relating to (1) prosecutorial misconduct, (2) jury instructions,
(3)
his
right
to
a
complete
defense,
6
and
(4)
ineffective
assistance of counsel.
After a review of the record for these
issues, we find no fundamental error.
Prosecutorial Misconduct
Closing and Rebuttal Arguments
¶4
Delgado
alleges
the
State
committed
prosecutorial
misconduct in its closing argument when it said “[h]e’s guilty,”
and in its rebuttal argument when it said Delgado “lives in a
fantasy
world.”
He
asserts
“[h]e’s
guilty”
is
an
improper
injection of the State’s personal opinion of his guilt and that
suggestions to a fantasy world are intended to “appeal to the
jury’s fears and passions.”
¶5
In State v. Sullivan, 130 Ariz. 213, 218, 635 P.2d
501, 506 (1981), the Arizona Supreme Court expressed the test
for the impropriety of closing remarks as a two-part inquiry
requiring
the
[jurors]
could
remarks
not
to
be
draw
attention
justified
in
to
“matters
considering”
and
which
those
remarks must also appear to have “probably influenced the jury’s
verdict.”
“Prosecutors have ‘wide latitude’ in presenting their
closing arguments to the jury.”
State v. Jones, 197 Ariz. 290,
305 ¶ 37, 4 P.3d 345, 360 (2000).
Prosecutors are precluded,
however,
belief
from
expressing
guilt or innocence.”
“personal
in
the
defendant’s
State v. Filipov, 118 Ariz. 319, 323, 576
P.2d 507, 511 (App. 1977).
Additionally, counsel is also barred
from making “arguments that appeal to the passions and fears of
7
the jury.”
State v. Henry, 176 Ariz. 569, 581, 863 P.2d 861,
873 (1993).
¶6
In State v. Filipov, we found, “by virtue of [the]
sheer repetition” in the phrase “[h]e’s guilty, guilty, guilty,”
that
the
guilt.
prosecutor’s
words
became
a
personal
118 Ariz. at 324, 576 P.2d at 512.
opinion
as
to
Here, we find the
State’s isolated comment was not rendered a personal opinion
because “[h]e’s guilty” came as a conclusion to a permissible
review of evidence presented.
In State v. Henry, the Arizona
Supreme Court found that although a comment referring to the
defendant as a “psychopath” was an appeal to the passions and
fears of the jury, it was a lone comment made in the course of a
nine-day trial and did not influence the verdict.
581, 863 P.2d at 873.
176 Ariz. at
A prosecutor is entitled to argue that
the evidence shows the defendant is guilty.
¶7
In
this
case,
the
comment
that
Delgado
lives
in
a
“fantasy world” was said numerous times in the State’s rebuttal
argument.
Understood
references
constitute
in
context,
the
we
conclude
prosecutor’s
that
opinion
of
these
the
reasonableness — or lack thereof — based on the evidence, of
Delgado’s position and denial of guilt.
perceive
based
on
these
comments
the
evidence.
prosecutorial
misconduct
to
For
have
been
these
based
8
on
a
In other words, we
permissible
reasons
the
we
State’s
do
argument
not
closing
find
and
rebuttal arguments, and thus no error.
The State’s Alleged Late Disclosure
¶8
On the morning of jury selection, Phillip revealed to
the State that he was the owner of the pocket knife left at the
scene.
The State informed Delgado “right before” jury selection
of this new information.
Delgado asked for a dismissal arguing
“a
have
Grand
Jury
information]
.
should
.
.
been
[because
able
that]
to
consider
evidence
is
[the
somewhat
exculpatory and impedes Mr. Delgado’s right to a fair trial on
due
process
to
Delgado
evidence.”
grounds
now
adequately
alleges
prepare
the
late
his
defense
disclosure
is
on
an
ethical violation amounting to misconduct.
¶9
The trial court dealt with the late disclosure issue
by finding the State gave notice “as soon as it became aware,”
and found dismissal was inappropriate because the State had not
“committed any wrongdoing.”
Likewise, we find the State did not
unlawfully obstruct Delgado’s access to evidence in violation of
ethical
rules.
See
Ethical
Rule
3.4(a),
Ariz.
R.
Prof’l
Conduct, Ariz. R. Sup.Crt. 42 (“unlawfully obstruct[ing] another
party’s access to evidence or . . . conceal[ing] . . . material
having potential evidentiary value.”).
Additionally, we find no
abuse of discretion for the trial court’s decision to not grant
a dismissal.
Thus, we find no reversible error.
Jury Instructions
9
Alleged Shifting of Burden of Proof
¶10
Delgado
claims
the
State’s
closing
and
rebuttal
arguments “shift[ed] the burden of proof to [his] version of
events.”
We find no instances of actual or attempted burden
shifting in those arguments or during the trial.
the
court
issued
standard
preliminary
and
Additionally,
final
jury
instructions dealing with, in pertinent part, the presumption of
innocence, the State’s burden of proving all elements beyond a
reasonable doubt, that opening and closing arguments are not
evidence, and that “[t]he defendant is not required to produce
evidence of any kind.”
Because our supreme court has noted that
we must presume that jurors follow the court’s instructions in
the absence of evidence to the contrary, see State v. Newell,
212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006), we conclude
that the instructions given were an adequate guard against any
potential burden shifting and find no error.
Lack of a Jury Instruction Regarding Intent to Enter
¶11
Delgado next claims the trial court should have read a
jury instruction regarding his “lack of intent to plan an entry”
in the criminal trespass charge.
The record shows no request
for such an instruction at trial, and instead shows the trial
court
issued
final
jury
instructions
“intentionally,”
and
“knowingly”
necessarily
is
“knowingly,”
included
10
defining,
and
in
inter
alia,
describing
that
“intentionally.”
Additionally, Delgado’s own testimony demonstrates he intended
to enter, thinking it was the home of a girl he had spoken to
earlier, 1 and the State put on evidence that his entry and delay
in leaving was not authorized by Debra or Robert. 2
On this
record, we find no reversible error in these jury instructions.
Right to Complete Defense
¶12
Delgado
alleges
his
“right
to
present
a
complete
defense was . . . violated.”
We find no evidence in the record
or
such
in
counsel
his
brief
supporting
represented
Delgado
during
a
claim.
the
Court-appointed
trial’s
entirety,
and
Delgado was able to put forth the justification of self-defense,
and the court provided an applicable final jury instruction.
Consequently, we find no error based on this claim.
Ineffective Assistance of Counsel
¶13
“[I]neffective assistance of counsel claims are to be
brought in Rule 32 proceedings.”
State v. Spreitz, 202 Ariz. 1,
3, ¶ 9, 39 P.3d 525, 527 (2002).
“Any such claims improvidently
raised
.
in
a
direct
appeal
.
.
will
appellate courts regardless of merit.”
Id.
not
be
addressed
by
We therefore do not
address this claim.
1
Delgado testified at trial: “I noticed that one of the doors
was open . . . and the girl that I had talked to . . . told me
she would be out waiting . . . in that area, . . . and I took a
step into the door.”
2
The caretaker, Robert, and Debra repeatedly told Delgado to
leave.
11
Minute Entry Correction
¶14
Where there are discrepancies between the sentencing
minute entry and the oral pronouncement, we will often amend the
minute
entry
to
reflect
the
oral
pronouncement.
State
Johnson, 108 Ariz. 116, 118, 493 P.2d 498, 500 (1972).
v.
The
sentencing minute entry incorrectly states Delgado was convicted
of count four, aggravated assault against Cedric, a class three
dangerous felony.
jury’s
verdict
offense
We correct the minute entry to reflect the
Delgado
guilty
disorderly
conduct
against
of
finding
of
the
lesser-included
Cedric,
a
class
six
Delgado
was
dangerous felony.
Sentencing Inconsistency
¶15
The
sentencing
minute
entry
states
convicted of count five, aggravated assault against Officer S.,
a class three dangerous felony.
lists
count
five
as
a
class
six
In contrast, the indictment
dangerous
felony,
and,
at
sentencing, the transcript states that the judge described count
five as a class six dangerous felony.
Additionally, the jury
verdict form for count five does not list a finding regarding
dangerousness.
Due
to
these
inconsistencies,
we
remand
for
clarification or resentencing by the trial court on count five.
¶16
fall
The sentences imposed for counts one, two, and four,
within
the
range
permitted
by
law
for
the
convictions
involved, and the evidence presented supports those convictions
12
on
all
counts.
As
far
as
the
record
reveals,
Delgado
was
represented by counsel at all stages of the proceedings, and
these
proceedings
were
conducted
in
compliance
with
his
constitutional and statutory rights and the Arizona Rules of
Criminal Procedure.
¶17
684
Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85,
P.2d
154,
156-57
appeal have ended.
(1984),
counsel’s
obligations
in
this
Counsel need do no more than inform Delgado
of the disposition of the appeal and his future options, unless
counsel’s review reveals an issue appropriate for submission to
the Arizona Supreme Court by petition for review.
Delgado has
thirty days from the date of this decision in which to proceed,
if
he
desires,
with
a
pro
se
motion
for
reconsideration
or
petition for review.
CONCLUSION
¶18
Delgado’s
convictions
are
affirmed.
Delgado’s
sentences are affirmed as corrected on all convictions except
for count five, and we remand for clarification or resentencing
on count five.
____________________________
JOHN C. GEMMILL, Judge
CONCURRING:
___________________________________
PATRICIA K. NORRIS, Presiding Judge
13
____________________________
PATRICIA A. OROZCO, Judge
