                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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,
                                 Appellee,

                                        v.

                               JOSE C. ZARATE,
                                  Appellant.

                             No. 1 CA-CR 15-0145
                              FILED 2-4-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-002420-001
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Law Office of Nicole Farnum, Phoenix
By Nicole T. Farnum
Counsel for Appellant
                             STATE v. ZARATE
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1            Jose C. Zarate (Defendant) appeals his convictions for
manslaughter, a class 2 dangerous felony; disorderly conduct, a class 6
dangerous felony; misconduct involving weapons, a class 4 felony, and
three counts of sexual conduct with a minor, class 2 felonies and dangerous
crimes against children. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             On April 1, 2013 E.C. witnessed Defendant shoot M.S.
Approximately one hour after the shooting, E.C. was interviewed by
Maricopa County Sheriff’s Detective A. Felix. The interview was tape
recorded and transcribed. Detective Felix summarized E.C.’s interview in
a report which stated, “as [M.S.] lunged at [Defendant] to hit him in the face
with her fist [Defendant] raised his rifle and shot [M.S.] once in the chest.”
(Emphasis added).

¶3            At trial, the court read the rule of exclusion of witnesses.1 E.C.
testified that immediately before the shooting, M.S. “was going to hit
[Defendant], like, they were going to rage, like, she was going to punch him.
And that’s when [Defendant] just like shot.” On cross examination, defense
counsel asked E.C.:

       Q:      And you agree you told the detective [on the night of
       the shooting], regardless of what you may have said here
       today, you told Detective Felix that night . . . that [M.S.] tried
       to hit [Defendant] in the face. She lunged at him in order to do
       so. And it was after she did that that [Defendant] shot her;
       correct?

       A:     Yes, I did say that.



1      See Ariz. R. Evid. 615.


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                             STATE v. ZARATE
                            Decision of the Court

(Emphasis added). However, E.C. was hesitant with the word choice,
stating, “I said lunge? I don’t usually use the word lunge.” On re-direct
examination, E.C. testified that she had listened to her taped interview with
Detective Felix and reviewed the transcript. Afterwards, she testified that
she never used the word “lunged” during her interview.

¶4           Later at trial, Detective Felix testified that his report merely
summarized E.C.’s interview and he confirmed that E.C. did not use the
word “lunged.” Detective Felix explained that he uses the word “lunge” to
describe “a movement, moving forward, a motion, advancing,” or it could
mean “taking steps forward,” “jerking forward,” or “[a]ny type of forward
motion.”

¶5             On cross-examination, Detective Felix revealed that before his
testimony, the prosecutor informed him of the discrepancy between E.C.’s
taped interview and his usage of the word “lunged” in his report. He
testified that the prosecutor told him specific facts or details from E.C.’s
testimony, but that he could not remember exactly what they discussed.
When the court asked the prosecutor whether she told Detective Felix what
E.C. testified to, the prosecutor responded, “I do believe we did describe
the lunging . . . portion of her testimony.”

¶6            Defendant then moved for a mistrial. After ordering briefing
and holding a hearing on the issue, the trial court ruled that the prosecutor’s
decision to “overtly inform [Detective] Felix of certain details of [E.C.’s]
testimony [was] a violation of Rule 615.” But because defense counsel
questioned Detective Felix on cross-examination in front of the jury and
outside the presence of the jury, the court found “no evidence to suggest
that Defendant was prejudiced by the [prosecutor’s] conduct or that
[Detective] Felix’s testimony was influenced by the information provided
to him by the [prosecutor].”

¶7            A jury found Defendant guilty of manslaughter, a class 2
dangerous felony; disorderly conduct, a class 6 dangerous felony;
misconduct involving weapons, a class 4 felony, and three Counts of sexual
conduct with a minor, class 2 felonies and dangerous crimes against
children. Defendant 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, 13-4031, and -4033.A.1 (West 2015).2



2     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                             STATE v. ZARATE
                            Decision of the Court

                               DISCUSSION

¶8             On appeal, Defendant argues that his convictions should be
reversed because the trial court should have declared a mistrial after ruling
that the prosecutor violated Rule 615. We review the trial court’s denial of
a mistrial for abuse of discretion. See State v. Adamson, 136 Ariz. 250, 260
(1983). Declaring a mistrial is the “most dramatic remedy for trial error and
should be granted only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” Id. at 262.

¶9            Arizona Rule of Evidence 615 provides that “[a]t a party’s
request, the court must order witnesses excluded so that they cannot hear
other witnesses’ testimony.”3 Arizona’s Rule 615 has been amended to
conform to Federal Rule of Evidence 615. Ariz. R. Evid. 615 cmt. to 2012
amendment. Therefore, we will refer to federal case law to analyze
construction and application of Rule 615.

¶10           The purpose of Rule 615 is to prevent “fabrication, inaccuracy,
and collusion.” Fed. R. Evid. 615 advisory committee’s note to 1972
proposed rules. Although Rule 615 only expressly excludes prospective
witnesses from the courtroom, federal courts have not countenanced
circumvention of the rule. “Counsel know, and are responsible to the court,
not to cause any indirect violation of [Rule 615] by themselves discussing
what has occurred in the courtroom with the witnesses.” United States v.
Buchanan, 787 F.2d 477, 485 (10th Cir. 1986); see also United States v. Jimenez,
780 F.2d 975, 980 (11th Cir. 1986) (finding violation of Rule 615 when, before
testifying, one witness read the testimony of another witness from a prior
mistrial); United States v. Blasco, 702 F.2d 1315, 1326 (11th Cir. 1983) (during
an overnight recess, the prosecutor met with two witnesses in violation of
sequestration order).

¶11            We assume without deciding that the trial court correctly
determined that the prosecutor’s conduct violated Rule 615. To remedy a
violation of Rule 615, a trial court has several options, including holding the
offending witness in contempt, allowing questioning regarding the
violation, or precluding the witness from testifying. United States v. Hobbs,
31 F.3d 918, 921 (9th Cir. 1994). Defendant argues that the only meaningful
remedy was a mistrial, because Detective Felix’s testimony would have



3     The record does not indicate which party invoked Rule 615, or
whether the court acted sua sponte. However, neither party contests the
propriety of the invocation of Rule 615.


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                            STATE v. ZARATE
                           Decision of the Court

benefitted the defense, but was changed as “a direct result of the
prosecutor’s violation of Rule 615.”

¶12            Contrary to Defendant’s argument, the trial court properly
remedied the prosecutor’s misconduct by permitting questioning on cross-
examination of Detective Felix both in front of the jury and outside the
presence of the jury. See id. The court offered Defendant further
opportunity to cross-examine Detective Felix in the presence of the jury, but
he declined. Also, there was no question that M.C. went toward Defendant
to try to hit him. Whether she “lunged” or leaned forward, the idea was
conveyed that M.C. intended to hit Defendant before he shot her.
Defendant does not contend that the prosecutor should have been held in
contempt, or that Detective Felix’s testimony should have been excluded.

¶13           Under those circumstances, it was not an abuse of discretion
to deny Defendant’s motion for mistrial. See United States v. Ward, 18
Fed.Appx. 502, 504 (9th Cir. 2001) (affirming denial of mistrial despite
prosecutor’s improper conversation with witness because court permitted
defense counsel to cross-examine the witness regarding the improper
conversation); United States v. Lee, 800 F.2d 903, 904 (9th Cir. 1986)
(affirming denial of mistrial when prosecutor’s assistant improperly
communicated with witnesses in violation of the witness exclusion rule,
because such conduct did not cause prejudice).

                              CONCLUSION

¶14          For the foregoing reasons, we affirm Defendant’s convictions
and sentences.




                                  :ama




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