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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

 

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 

2 

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. 
STATE v. ZARATE 

Decision of the Court 

3 

(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. 
STATE v. ZARATE 

Decision of the Court 

4 

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. 
STATE v. ZARATE 

Decision of the Court 

5 

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 crossexamination 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.