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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

DAVID THOMAS GOOLD, Appellee.

No. 1 CA-CR 14-0870 

Appeal from the Superior Court in Maricopa County 

No. CR2014-107020-001 DT

The Honorable John R. Ditsworth, Judge 

REVERSED AND REMANDED 

COUNSEL 

Maricopa County Attorney’s Office, Phoenix

By Lisa Marie Martin 

Counsel for Appellant 

Brown & Little, P.L.C., Tempe 

By Matthew O. Brown 

Counsel for Appellee
STATE v. GOOLD 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Donn Kessler joined. 

W I N T H R O P, Judge: 

¶1 The State appeals the trial court’s order dismissing this case 

with prejudice after its attorney at trial read a question in an interview 

transcript referring to the defendant, David Goold, invoking his FifthAmendment rights. For the following reasons, we reverse and remand the 

case to the trial court for further proceedings consistent with this decision. 

FACTS AND PROCEDURAL HISTORY 

¶2 The defendant was indicted for one count of aggravated 

assault, a class 3 dangerous felony. At trial, defense counsel, Daniel 

Raynak, conducted a lengthy cross-examination of Phoenix Police Officer 

Manzietti, and used the transcript of a taped telephonic pre-trial interview 

to question and arguably impeach Officer Manzietti. On redirect 

examination, Officer Manzietti indicated that one explanation for why her 

testimony at trial was arguably different from that provided in the 

interview with the defense counsel was that Mr. Raynak was yelling at her 

during the interview, and that she did not understand some of the 

questions. Mr. Raynak then asked to have the entire recording of the 

interview played. The State indicated at a sidebar conference it had no 

objection to the entire recording being played, but noted that one of Mr. 

Raynak’s questions during the interview referenced his client’s invocation 

of his Fifth-Amendment rights; the trial court then directed that the relevant 

portion of the interview transcript be read to the jury.1 When the State’s 

attorney, Mr. Hinrichsen, asked Officer Manzietti to point out her answers 

showing she had not understood the questions on page 10 of the interview 

transcript, Mr. Raynak objected and requested that some context be 

 

1 Mr. Raynak did not question whether reading the transcript would 

be sufficient to show whether he was yelling during the interview. 
STATE v. GOOLD 

Decision of the Court 

3

provided for the answers that were going to be read aloud.2 The court then 

directed Mr. Hinrichsen to read the question: 

Hinrichsen: What specific responses, and I will refer you to 

page 10, are things that you told Mr. Raynak that you don’t 

understand the question. 

Raynak: Your Honor, I am going to object unless we read it 

and put it in context where she specifically advised she is not 

answering the question. You can’t pull something out of thin 

air and say that. 

Hinrichsen: I’m fine if you [Mr. Raynak] want to read the 

questions and the answers. 

The Court: Go ahead. 

Hinrichsen: [Speaking to the witness] Go ahead and read the 

questions and the answers. 

Manzietti: The question is, from Mr. Raynak—well, do you 

want the question from page 9? 

The Court: Mr. Hinrichsen, you read the question and have 

her read her response. 

Hinrichsen: Will do. Page 9. “I understand you would have 

done that but you already admitted and it’s in the officer’s 

reports, you told them that there was already probable cause 

to arrest before they even stopped the suspect, before he even 

had a chance to invoke his rights. You already made a 

decision—

Mr. Raynak: May we approach? 

At the subsequent bench conference, defense counsel immediately sought 

a mistrial and dismissal with prejudice; the court granted a mistrial, 

discharged the jury and, after briefing and oral argument, the court 

dismissed the case with prejudice. 

 

2 The transcript of the interview was not admitted into evidence and 

thus is not in the record. 
STATE v. GOOLD 

Decision of the Court 

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¶3 The State timely appealed. We have appellate jurisdiction 

pursuant to the Arizona Constitution, Article 6, Section 9; and Arizona 

Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1), 13–4031, and 13–

4032(1).3

ANALYSIS 

¶4 We review the trial court’s order “granting a motion to 

dismiss criminal charges for an abuse of discretion or for the application of 

an incorrect legal interpretation.” State v. Lemming, 188 Ariz. 459, 460, 937 

P.2d 381, 382 (App. 1997). The State does not contest the mistrial order; 

however, it contends the dismissal should have been without prejudice. 

The defendant contends that the trial court’s ruling was appropriate.4 The 

record5 is silent as to how the trial court reached its decision to dismiss with 

prejudice. 

 

3 We cite the current version of all applicable statutes unless revisions 

material to this decision have occurred since the relevant events. 

4 On appeal, the defendant continues to rely almost entirely on the 

factors listed in State v. Huffman, 222 Ariz. 416, 215 P.3d 390 (App. 2009) as 

justification for the trial court’s dismissal with prejudice. Huffman does not 

resolve the issue presented in this case. Huffman involved a case where, 

after two hung juries, a defendant was tried a third time and convicted. Id.

at 392, ¶ 1, 215 P.3d at 418. The issues on appeal in Huffman were whether 

a third prosecution constituted double jeopardy, and if not, whether 

principles of due process barred the third prosecution. Id. The court held 

that a successive prosecution following two hung juries did not constitute 

double jeopardy, and that due process only required that the trial court 

consider and balance the competing interests of the State and the defendant 

in determining whether a third trial should be permitted or whether the 

charges should instead be dismissed with prejudice. Id. at 419 & 422, ¶¶ 7 

& 15, 215 P.3d at 393 & 396.

5 The defendant contends the record on appeal is incomplete because 

the State only submitted transcripts for two days of the trial, one for the day 

when the prosecution read the transcript in question and the other for the 

day of the hearing on the defendant’s motion to dismiss with prejudice. We 

disagree. The appellant has the duty to ensure the record contains material 

or documents necessary for us to review the contended matter. State v. 

Lavers, 168 Ariz. 376, 399, 814 P.2d 333, 356 (1991). Here, the State has 
STATE v. GOOLD 

Decision of the Court 

5

¶5 Rule 16.6, Arizona Rules of Criminal Procedure, provides: 

a. On Prosecutor's Motion. The court, on motion of the 

prosecutor showing good cause therefor, may order that a 

prosecution be dismissed at any time upon finding that the 

purpose of the dismissal is not to avoid the provisions of Rule 

8 [on speedy trial]. 

b. On Defendant's Motion. The court, on motion of the 

defendant, shall order that a prosecution be dismissed upon 

finding that the indictment, information, or complaint is 

insufficient as a matter of law. 

. . .

d. Effect of Dismissal. Dismissal of a prosecution shall be 

without prejudice to commencement of another prosecution, 

unless the court order finds that the interests of justice require 

that the dismissal be with prejudice. 

Ariz. R. Crim. P. 16.6. 

¶6 As provided by the rule and existing case law, a trial judge 

may dismiss a prosecution under the authority of Rule 16.6; however, this 

rule favors dismissal without prejudice: “dismissal of a prosecution shall 

be without prejudice . . . unless the court order finds that the interests of 

justice require that the dismissal be with prejudice.” Ariz. R. Crim. P. 

16.6(a), (b), & (d); State v. Granados, 172 Ariz. 405, 407, 837 P.2d 1140, 1142 

(App. 1991). The rule specifically “requires the trial court to make ‘a 

reasoned finding’ that the interests of justice require the dismissal to be with 

prejudice.” State v. Wills, 177 Ariz. 592, 594, 870 P.2d 410, 412 (App. 1993);

accord State v. Gilbert, 172 Ariz. 402, 405, 837 P.2d 1137, 1140 (App. 1991); 

State v. Garcia, 170 Ariz. 245, 248, 823 P.2d 693, 696 (App. 1991). If such an 

explicit finding is not present in the record, the record itself must contain 

facts supporting such a finding. Wills, 177 Ariz. at 594, 870 P.2d at 412. The 

most important consideration in determining whether the interests of 

justice require dismissal with prejudice is whether the defendant will suffer 

prejudice from the delay if the case were to be retried. Gilbert, 172 Ariz. at 

404, 837 P.2d at 1139. In this context, “prejudice” means a harm that would 

 

fulfilled this duty as the days of trial and of any hearing relevant to the 

dismissal were those two days. 
STATE v. GOOLD 

Decision of the Court 

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actually impair the defendant’s ability to defend against the charges. In re 

Arnulfo G., 205 Ariz. 389, 391, ¶ 9, 71 P.3d 916, 918 (App. 2003). 

¶7 In Wills, the trial court granted the defendant’s motion to 

dismiss with prejudice, stating “I think the passage of six months is 

insufficient grounds for prejudice. The motion to dismiss with prejudice is 

granted. The Court finds pursuant to Rule 16.5 [the then-applicable rule 

provision], that the interests of justice requires [sic] the dismissal to be with 

prejudice.” Id. On appeal, this court agreed with the trial court that the 

mere lapse of time was not sufficient to support a dismissal with prejudice, 

but held the trial court’s perfunctory statement that the interests of justice 

required dismissal with prejudice did not, as a matter of law, constitute the 

“reasoned finding” required by Rule 16.6(d); Gilbert, 172 Ariz. at 405, 837 

P.2d at 1140; and Garcia, 170 Ariz. at 248, 823 P.3d at 696. Wills, 177 Ariz. at 

594, 870 P.2d at 412. This court then specifically examined the record; that 

review did not reveal any identifiable harm to the defendant if the case were 

to be dismissed without prejudice, nor had the defendant articulated any 

such harm. Id. at 594–95, 870 P.2d at 412–13. As a result, we directed that 

the dismissal in that case to be without prejudice. Id. at 595, 870 P.2d at 413. 

¶8 In the present case, in granting dismissal with prejudice, the 

trial court simply stated: 

The Court has received Defendant’s Motion to Dismiss with 

Prejudice, the State’s response and the reply. Good cause 

appearing, 

IT IS ORDERED granting the motion. 

IT IS FURTHER ORDERED dismissing CR2014-107020-001 as to 

Defendant DAVID THOMAS GOOLD with prejudice. 

Like the perfunctory statement in Wills, a conclusory statement of “good 

cause appearing” does not meet the requirement of a reasoned finding that 

the interests of justice require dismissal with prejudice. Nor does the record 

support such a finding. 

¶9 In a related argument, the defendant also contends that 

jeopardy should attach because there was deliberate prosecutorial 

misconduct. A mistrial based on prosecutorial misconduct, however, 

generally does not bar a later retrial. State v. Trani, 200 Ariz. 383, 384, ¶ 6, 

26 P.3d 1154, 1155 (App. 2001). Jeopardy may attach when a mistrial is 

granted or declared only if all of the following conditions exist: 
STATE v. GOOLD 

Decision of the Court 

7

1. Mistrial is granted because of improper conduct or actions 

by the prosecutor; and 

2. such conduct is not merely the result of legal error, 

negligence, mistake, or insignificant impropriety, but, taken 

as a whole, amounts to intentional conduct which the 

prosecutor knows to be improper and prejudicial, and which 

he pursues for any improper purpose with indifference to a 

significant resulting danger of mistrial or reversal; and

3. the conduct causes prejudice to the defendant which cannot 

be cured by means short of a mistrial. Pool v. Super. Ct. of Pima, 

139 Ariz. 98, 108–09, 677 P.2d 261, 271–72 (1984) (emphasis 

added). 

¶10 The second and third prongs of the Pool test are at issue here. 

The State agrees that, barring waiver, the prosecution may not comment on 

a defendant’s invocation of Fifth-Amendment rights. See State v. Guerra, 

161 Ariz. 289, 296, 778 P.2d 1185, 1192 (1989) (prohibiting the prosecution 

from commenting on a defendant’s invocation of the Fifth-Amendment 

rights). Even assuming then that improper conduct occurred, the next 

inquiry is whether the reading of the offending passage here was 

intentional or merely a mistake. Although the defendant contends the 

violation was deliberate, our review of the record suggests a conclusion that 

this was mere inadvertence. At worst, this was perhaps a situation of 

shared responsibility, as Mr. Raynak had the transcript in hand as Mr. 

Hinrichsen was starting to read the question that contained the offending 

passage. Both before the trial court and on appeal, the defendant argues 

that Mr. Hinrichsen and his supervising attorney, Mr. Lynch, concocted a 

plan during the lunch recess to deliberately include the reference to the 

defendant’s invoking his rights; however, on this record, there is no proof 

to support such conjecture. Indeed, when Mr. Hinrichsen started to read 

from the transcript, he went first to the witness’s answer, and not to the 

question itself. 

¶11 As it relates to the third prong—the existence of prejudice as 

a result of the conduct, the defendant contends that he has been prejudiced 

and that the delay caused by the mistrial will adversely affect his ability to 

defend against the charge. In that regard, the defendant contends (1) that 

he suffers prejudice from passage of time; (2) that his memory and ability 

to testify on his own behalf would not improve; (3) that his incarceration 

would be prolonged; (4) that he would suffer additional financial and 

emotional anxiety if the case were retried; and (5) that potential witnesses 
STATE v. GOOLD 

Decision of the Court 

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who were available at the first trial setting may not be available for any 

retrial.

¶12 The existence of actual or potential prejudice is a critical 

element both under Rule 16.6 and in determining whether jeopardy should 

attach after an incidence of prosecutorial misconduct. None of the 

generalized harm from delay as identified by the defendant (items (1)–(4) 

above) would impair his ability to defend against the charge. See Wills, 177 

Ariz. at 594, 870 P.2d at 412 (stating mere lapse of time is not sufficient to 

justify dismissal with prejudice); Granados, 172 Ariz. at 407, 837 P.2d at 1142

(stating generalizations like lack of finality or fading memories are not 

prejudicial and do not support a dismissal with prejudice). Nor does any 

evidence in the record demonstrate that the delay was created for the 

purpose of gaining tactical advantage or harassing the defendant. See 

Arnulfo G., 205 Ariz. at 391, ¶ 9, 71 P.3d at 918 (stating a dismissal with 

prejudice is justified if the state delayed the case for the purpose of gaining 

a tactical advantage over or harassing the defendant). Moreover, the 

defendant has not provided any information beyond hypothetical 

speculation that indicates any potential witnesses would be unavailable at 

the retrial. 

CONCLUSION 

¶13 The trial court erred in not making the requisite findings to 

support a conclusion—required under Rule 16.6 and the applicable case 

law—that the interests of justice and/or principles of double jeopardy 

require a dismissal with prejudice in this case. Further, our review of the 

record does not support such a conclusion, either. 

¶14 The order dismissing the case with prejudice is reversed. We 

remand the matter to the trial court with direction to enter an order 

dismissing the case without prejudice.