State v. Delgado

2020 UT App 121

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JONATHAN FRANCISCO DELGADO,
Appellant.

Opinion
No. 20181040-CA
Filed August 20, 2020

Second District Court, Ogden Department
The Honorable Ernest W. Jones
No.171900028

Cherise Bacalski and Emily Adams,
Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 After he shot and killed a man in response to a text
message he found disrespectful, and then hid the murder
weapon in a toilet tank, Jonathan Francisco Delgado was
convicted of murder and obstruction of justice. Delgado now
appeals, contending that his trial counsel rendered
constitutionally ineffective assistance. We reject Delgado’s claim,
and affirm his convictions.
 State v. Delgado

BACKGROUND 1

¶2 Delgado was friends with a co-worker, Antonio, 2 who
lived in an apartment with his sister, Miranda. Antonio was also
friends with the occupant of the apartment across the hall
(Ronald), who at that time was allowing another friend of his—
the eventual murder victim (Victim)—to live with him
temporarily. Antonio was also acquainted with Victim, having
worked with him at a previous job.

¶3 At some point on the day of the murder, Miranda told her
brother Antonio about a text message she had received from
Victim, in which Victim sent a picture of himself “flashing
money” and asking Miranda to “hook up and have birthday
sex” with him. This “upset” Antonio, and he told Miranda that
he would “talk to [Victim] about it” in the hopes that they could
“settle it like men,” perhaps in a fistfight.

¶4 Before that conversation could occur, Delgado picked up
Antonio so that the two of them could go to work and run some
errands. Sometime that day, Antonio called Miranda, and put
Delgado on the phone. Though Miranda had never met Delgado,
Delgado asked Miranda about Victim, telling her that he was

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences in a light most favorable to the verdict,
reciting the facts accordingly.” State v. Palmer, 2014 UT App 272,
¶ 2, 339 P.3d 107 (quotation simplified).

2. Because of the number of individuals involved, and in an
effort to maintain the privacy of non-party witnesses, we have
chosen to use pseudonyms when referring to some of those
individuals. See State v. Jordan, 2018 UT App 187, ¶ 4 n.2, 438
P.3d 862 (using pseudonyms for similar reasons). Specifically,
Antonio, Miranda, Ronald, and Simon are pseudonyms.

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 State v. Delgado

going to “confront him” about the text message, to which
Miranda responded that he should “leave it alone” and that it
“was just a stupid text message.”

¶5 On their way home, Antonio and Delgado purchased
liquor, and after they got back to Antonio’s apartment, they
began consuming it. At some point that afternoon, Delgado
asked Antonio if he knew where some methamphetamine
(“meth”) could be had. Antonio walked across the hall and
passed that request along to his neighbor Ronald, who indicated
that he had meth and that Delgado was welcome to come over
and smoke it. When Antonio went back to his own apartment to
relay the invitation to Delgado, he found Delgado lying on
Antonio’s bed and “pointing a gun at” Antonio. Antonio did not
own any guns, but he knew that Delgado did. Antonio told
Delgado to “put [the gun] away,” and the two of them walked
across the hall to Ronald’s apartment.

¶6 Once inside Ronald’s apartment, Antonio introduced
Delgado and Ronald, who had not met before. Victim—Ronald’s
roommate—was not present. Ronald later stated that he “could
tell [Antonio and Delgado] were intoxicated” when they arrived
at his apartment. The three of them drank more liquor together,
and Ronald and Delgado smoked meth. As they were drinking
and smoking, Antonio asked Ronald where Victim was, stating
that he needed to talk to Victim about why he was “texting
[Miranda] all these text messages.” Ronald testified that Antonio
“started getting excited and he started getting mad” about the
text message, and that Delgado agreed with Antonio, saying that
“it was disrespectful that [Victim] sent [the message] to
[Miranda].” At some point during their time together, Ronald
noticed that Delgado had a “pistol on his thigh.”

¶7 A few minutes later, Victim returned home to Ronald’s
apartment building. Ronald went downstairs to let Victim into
the building, and warned him on the way up to the apartment

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that Antonio was “really mad” at Victim for sending the text
message to Miranda. Victim appeared unconcerned, and
proceeded toward the apartment. Once there, Antonio
confronted Victim, “yelling” at him and asking him about the
text message. Victim then left the apartment and “took off
running downstairs.” Antonio followed, and grabbed hold of
Victim’s shirt, nearly ripping it off of him and causing both of
them to fall down some stairs. Delgado followed them down the
stairs. Ronald also left the apartment—without locking the door
behind him—and observed the events from a landing area in the
building’s stairwell. Another neighbor, who could hear the
events from inside his own apartment, described it as “a
horrendous, angry, violent, showering fight.”

¶8 At the bottom of the stairs, Antonio and Victim regained
their footing, and continued arguing, with Delgado just
“standing there.” Eventually, Antonio and Victim went out the
door of the apartment building, and thereafter Delgado exited
the building as well. Soon after Victim left the building, he fell
down, and Antonio took off his shirt and hit Victim with it.
Antonio’s version of events was corroborated by images
captured from a surveillance camera across the street, which
showed a person running outside, a second person running after
him, the first person falling to the ground, and the second person
taking off his shirt and hitting the first person with it. No gun
can be seen in the second person’s hands in the video footage.

¶9 Just “a couple [of] seconds” after Antonio, Victim, and
Delgado all exited the apartment building, a gunshot rang out.
Several witnesses heard the shot, including Ronald, Antonio, a
neighbor, an employee of the business across the street, and two
police officers who just happened to be conducting an unrelated
traffic stop nearby. The shot struck Victim’s torso, lacerating his
heart and killing him within seconds.

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 State v. Delgado

¶10 Just “a few seconds after” the shot rang out, Ronald—still
in the stairwell—saw Delgado come back inside the apartment
building, with the pistol in his hand. Believing that Delgado had
just shot Victim, Ronald asked Delgado, “What the f[***] did you
have to do that for?” Delgado did not respond, and just kept
walking up the stairs toward the apartments with a “blank face.”
Ronald then went outside and saw Victim’s body, with Antonio
standing next to it, and two officers approaching.

¶11 The two officers from the traffic stop had arrived at the
scene quickly, and they observed Victim on the ground, bleeding
profusely, and observed Antonio standing over Victim, still
“yelling” at him “in an aggressive manner.” The officers told
Antonio to show them his hands and to “drop the gun,” but
neither officer actually saw a gun in Antonio’s hands. Both
officers later testified that, upon arriving on scene and seeing
nobody else around, they initially believed that Antonio had
shot Victim. According to Antonio, upon seeing the officers, he
went into “panic mode[,] . . . got scared and . . . just ran back
upstairs” into his apartment.

¶12 After Antonio returned to his apartment, he found
Delgado there, wearing a bath towel. Antonio asked Delgado,
“Did you shoot him?” Antonio characterized Delgado’s answer
differently throughout the proceedings. On the day of the
shooting, Antonio told a detective that Delgado responded, “I
don’t know. Yes. Yes. Yes. I don’t know.” At the preliminary
hearing, Antonio testified that Delgado “just said ‘Shh,’” and
“kind of stayed quiet.” During trial, Antonio testified that
Delgado “told [Antonio] he had shot him.” At any rate, after
Delgado responded to Antonio’s question, Antonio asked
Delgado where the gun was, and Delgado told Antonio that “he
had hid[den] [the gun] and not to worry about it.” Antonio
testified that, at this point, he just felt “[p]anic,” and he told
Delgado to get out of his apartment, and emphasized the point
by taking Delgado’s belongings and “thr[o]w[ing] [them] next

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 State v. Delgado

door” toward Ronald’s apartment. Antonio then called Miranda
on Delgado’s phone to “let her [and his mom] know what had
happened.” During the call, Antonio “told [Miranda] he didn’t
do it,” that he “didn’t shoot him,” and that “Jonathan did it.”
Miranda testified that Antonio “sounded scared,” and that she
“never heard him like that before.” After the call, on Miranda’s
advice, Antonio went outside and surrendered to police.

¶13 After this call, Miranda left work and traveled to the
scene, where she found the block “swarmed with cops.”
Miranda realized that somebody was hurt, and kept calling
Antonio on the phone he had called from—Delgado’s.
Eventually, Delgado answered the phone, and Miranda asked
him what had happened, and Delgado replied that he shot
Victim and that he had done it “for [Miranda].” Some twenty
minutes later, Delgado called Miranda again, asking for
information about “where . . . all the cops and stuff were at.”
Miranda testified that, during this call, she told Delgado to “just
surrender yourself. They’re going to get you.” Miranda also
testified that, during this call, Delgado was on another phone
call, going back and forth from that call to hers.

¶14 Delgado’s other phone call was with his friend Simon,
who testified that Delgado called to ask Simon to come and pick
him up and take him away from the apartment building. Simon
testified that he did not know what was going on, but that
Delgado eventually told him, “I think I just gave it to
somebody,” which Simon took to mean that Delgado had either
beaten somebody up, or “shot somebody.” When Simon arrived,
however, he discovered that police officers were present on all of
the streets surrounding the apartment building, and he told
Delgado he would be unable to pick him up.

¶15 During this time, police officers were engaged in securing
the scene, one part of which was evacuating everyone from the
apartment building. In the course of doing this, at least forty-five

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 State v. Delgado

minutes after the shooting, officers came in contact with
Delgado, who was standing at the top of a flight of stairs talking
on the phone. An officer testified that, upon being approached
by officers, Delgado “appeared surprised” that officers wanted
to talk to him, which struck officers as odd given the
“overwhelming police response” including “lights and sirens.”
Officers took Delgado into custody without incident, and
continued clearing the building.

¶16 After taking Delgado into custody, officers questioned
him about the day’s events. Delgado told officers that he had
been talking to his girlfriend on the phone for at least forty
minutes when officers encountered him. When officers checked
Delgado’s phone, they found that he had made no calls of that
length, but noticed that the phone did show the calls to
Miranda’s phone, discussed above. When asked for the name of
the girlfriend with whom he supposedly had been speaking,
Delgado initially identified Miranda, but then told officers he
had been “talking to a lot of girls” and that he did not
“understand how it’s relevant.” Police later learned, from a more
thorough search of Delgado’s phone, that he had been speaking
to Simon (and asking for a ride) when police encountered him.

¶17 After they secured the scene, officers scoured it for
additional evidence, and conducted a separate search of
Delgado’s residence. Perhaps of most significance, officers
discovered a black semi-automatic pistol hidden in the toilet
tank inside Ronald’s apartment. The gun was loaded and a
cartridge was in the chamber. At trial, Ronald identified the
pistol as the one he saw on Delgado’s thigh while Antonio and
Victim were arguing, and in Delgado’s hand after the gunshot,
and Antonio identified it as the gun he had seen Delgado point
at him in his bedroom just prior to the shooting. Officers
searched the area for fingerprints, and were unable to find any
on the gun itself, but did find one partial fingerprint on the side
of the toilet tank. Officers also located a spent shell casing near

20181040-CA 7 2020 UT App 121
 State v. Delgado

the apartment building door that Ronald had seen Delgado pass
through just seconds before the shooting, a location that was
some distance from where Victim’s body was found and
Antonio had been standing. Later, Victim’s autopsy revealed
that he had not been shot at close range. That shell casing was
later determined to be the same brand and type as the bullet
recovered from Victim’s body as well as the cartridge found in
the gun recovered from the toilet tank. Moreover, some of the
ammunition discovered in a search of Delgado’s residence was
also the same brand and type.

¶18 After completing its investigation, the State charged
Delgado with one count of murder (a first-degree felony) for
killing Victim, and one count of obstructing justice (a second-
degree felony) for hiding the gun. As the case proceeded toward
trial, it became clear that Delgado planned to defend the case by
asserting that Antonio, and not Delgado, had shot Victim. After
all, Antonio was Miranda’s brother, and therefore had more
reason to be upset about the text message than Delgado did;
moreover, it was undisputed that Antonio was indeed upset
about the text message and had engaged in a scuffle with Victim
about it and was discovered standing over Victim, yelling at him
in an aggressive manner, right after Victim was shot. In addition,
officers initially suspected that Antonio had been the shooter,
and based on that suspicion had submitted two applications for
search warrants on the day of the shooting in which one officer
(Attesting Detective) attested that another officer “observed
[Antonio] holding a handgun and pointing it toward the person
who was on the ground.”

¶19 Over the course of the seven-day jury trial, the State called
more than twenty fact witnesses, including Antonio, Miranda,
Ronald, Simon, and several law enforcement officers who were
on scene. But the State did not call Attesting Detective, and
released him from his subpoena a few days before trial began.
The State also called several expert witnesses during its case-in-

20181040-CA 8 2020 UT App 121
 State v. Delgado

chief, including the medical examiner, a toxicologist, a ballistics
analyst, and two fingerprint analysts. The fingerprint witnesses
each had analyzed the partial fingerprint lifted from Ronald’s
toilet tank, and each testified that it matched Delgado’s
fingerprint. In comparing the fingerprint found on the toilet tank
to Delgado’s fingerprint, the analysts applied the widely
accepted “ACE-V” comparison process, which stands for
Analyze, Compare, Evaluate, and Verify. During the Verify
stage, the fingerprint must be examined by a second “competent
examiner, who basically goes through the entire [ACE] process
again, and then renders their decision as well.” But in this case
the second fingerprint examiner—who was serving as the
“verifier”—did not conduct a “blind verification.” That is, before
beginning his analysis, he was aware that the first fingerprint
examiner had concluded that the print was Delgado’s. 3
Delgado’s counsel extensively cross-examined both fingerprint
witnesses, and established that they had not conducted a blind
verification; that some (but not all) industry guidelines
recommended that the verification process be conducted blindly;
and that, although blind verification had not been standard
operating procedure in the witnesses’ laboratory at the time they
did their examination of the toilet tank print, their laboratory
had since made blind verification mandatory. But counsel did
not ask the trial court to exclude the fingerprint testimony on the
basis that no blind verification had been performed.

3. This court has determined that the ACE-V method of
comparing and identifying fingerprints is generally reliable
under rule 702 of the Utah Rules of Evidence. See State v.
Woodward, 2014 UT App 162, ¶¶ 22–28, 330 P.3d 1283 (analyzing
the threshold reliability of the ACE-V method under rule 702 of
the Utah Rules of Evidence). Neither in that case nor any other,
however, have we confronted the question of whether blind
verification is necessary to admissibility under rule 702.

20181040-CA 9 2020 UT App 121
 State v. Delgado

¶20 The State’s final witness was the lead investigator, a
police detective. During cross-examination of that witness,
Delgado attempted to introduce the search warrant affidavits
that had been prepared by Attesting Detective, which contained
a statement indicating that one police officer had seen Antonio
holding a gun and pointing it at Victim right after the shooting.
The State initially objected, on the basis of hearsay, and the court
sustained that objection. A few minutes later, in a sidebar
conference, Delgado responded that he would like to call
Attesting Detective but noted that the State had released him
from subpoena and he was now out of town and would not
return until the following Monday afternoon, the day the trial
was scheduled to be finished. After the court held fast to its
decision sustaining the objection, Delgado’s counsel stated,
“that’s fine, . . . we’ll just do it Monday” afternoon. But during a
short recess, the attorneys reached “a stipulation of sorts” under
which the State agreed to withdraw its objection and allow the
lead investigator to read the two search warrant affidavits for
the jury, and Delgado agreed not to call Attesting Detective on
Monday afternoon, thus allowing the trial to conclude sooner.
Cross-examination continued, and the investigator read both
search warrant affidavits for the jury. On redirect, however, the
investigator testified that Attesting Detective had no personal
knowledge of the events described in the search warrant
affidavits, because he was just relaying information received
from others and had not actually spoken with the officers on
scene who had observed Antonio. Those officers, as noted above,
testified at trial that, although they yelled “drop the gun” to
Antonio, they did not actually see a gun in Antonio’s hands.

¶21 After the State rested its case, Delgado called two
witnesses in his defense, but he elected not to testify. During
closing argument, Delgado’s attorney argued that it was
Antonio—and not Delgado—who shot Victim. Counsel made
little mention of the fingerprint evidence, and at one point even
implied that there existed sufficient evidence from which the

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 State v. Delgado

jury could find that Delgado committed obstruction of justice by
hiding the gun in the toilet tank for Antonio’s benefit, a series of
events which, in counsel’s view, nicely explained Delgado’s
rather dodgy behavior upon encountering the police after the
shooting while not implicating him as the shooter. Counsel also
emphasized the search warrant affidavits, arguing that Attesting
Detective had to have “got the information [about Antonio
holding a gun] from somewhere,” and that “logic tells you he
got it from” the officers on scene who had observed Antonio.

¶22 After deliberation, the jury convicted Delgado on both
counts, and the trial court later sentenced Delgado to prison.

ISSUE AND STANDARD OF REVIEW

¶23 Delgado now appeals, asserting that his trial counsel
rendered constitutionally ineffective assistance. Delgado raises
this issue for the first time on appeal, and therefore “there is no
lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” See Layton City v. Carr, 2014 UT App 227, ¶ 6,
336 P.3d 587 (quotation simplified).

ANALYSIS

¶24 Delgado identifies two ways in which he believes his trial
counsel rendered ineffective assistance. First, he asserts that
counsel should have called Attesting Detective as a witness,
rather than introduce his search warrant affidavits through the
lead investigator. Second, he asserts that counsel should have
filed a motion, pursuant to rule 702 of the Utah Rules of
Evidence, asking the trial court to exclude the testimony about
the toilet tank fingerprint, on the ground that the testimony was
unreliable because of the absence of blind verification.

20181040-CA 11 2020 UT App 121
 State v. Delgado

¶25 To establish a claim of ineffective assistance, Delgado
must show both that (1) counsel’s performance was deficient, in
that it “fell below an objective standard of reasonableness,” and
that (2) counsel’s deficient performance “prejudiced the defense”
such that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687–88
(1984); see also State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State
v. Ray, 2020 UT 12, ¶ 24. Delgado must make a sufficient
showing on both parts of this test in order to establish that
counsel provided ineffective assistance. See Archuleta v. Galetka,
2011 UT 73, ¶ 41, 267 P.3d 232. It is unnecessary “to address both
components of the inquiry” if we determine that Delgado has
made “an insufficient showing on one.” Id. (quotation
simplified); accord Strickland, 466 U.S. at 697.

¶26 In evaluating prejudice under the second part of the test,
we assess whether there exists a reasonable probability that the
case would have had a different outcome if trial counsel had not
performed deficiently. See State v. Garcia, 2017 UT 53, ¶¶ 34–38,
424 P.3d 171. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome” of the proceeding.
Strickland, 466 U.S. at 694. In assessing whether a defendant has
met this standard, we “consider the totality of the evidence
before the judge or jury and then ask if the defendant has met
the burden of showing that the decision reached would
reasonably likely have been different absent the errors.” Garcia,
2017 UT 53, ¶ 28 (quotation simplified).

¶27 In this case, we conclude that—on both of the issues he
raises—Delgado has not demonstrated a reasonable likelihood of
a different result, even if we assume (without deciding) that
Delgado’s attorneys performed deficiently. We therefore confine
our discussion of the issues accordingly.

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 State v. Delgado

I

¶28 Delgado first claims that his trial attorneys were
constitutionally ineffective when “they did not ensure the
attendance at trial” of Attesting Detective, whom Delgado
characterizes as “a crucial defense witness.” The State counters
by pointing out that the main evidence Attesting Detective
would have discussed—the search warrant affidavits he wrote
indicating that Antonio was “holding a handgun and pointing it
toward the person who was on the ground”—was presented to
the jury during Delgado’s cross-examination of the lead
detective, and asserts that Delgado does not “explain how
questioning [the Attesting Detective] would have produced
more favorable evidence” than what was presented at trial, and
cannot in any event carry his burden of demonstrating a
reasonable likelihood of a different result had Attesting
Detective testified at trial. We agree with the State.

¶29 Delgado’s position regarding Attesting Detective is
hampered by a major flaw: the search warrant affidavits
Attesting Detective wrote were presented to the jury, through a
“stipulation of sorts” during cross-examination of the lead
investigator, after the State withdrew its hearsay objection. Thus,
the key pieces of evidence that Delgado wanted to present
through Attesting Detective were admitted into evidence, even
without Attesting Detective being present at trial.

¶30 Moreover, the lead investigator testified that Attesting
Detective did not speak with the officers who arrived first on the
scene, did not speak directly with “any of the primary
witnesses” in the case, and may not have ever visited the crime
scene at all. Rather, Attesting Detective compiled the search
warrant affidavits from information supplied to him from other
officers, some of which—including the part about Antonio
holding a gun—turned out to be inaccurate, at least according to
the trial testimony of the officers who arrived first on scene. The

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record before us does not contain any information indicating
that Attesting Detective had any personal knowledge of the
events described in the search warrant affidavits, and Delgado
has not filed a motion, pursuant to rule 23B of the Utah Rules of
Appellate Procedure, to supplement the record to add any such
information. In short, Delgado does not point to any evidence
tending to show that Attesting Detective had personal
knowledge of the relevant events, and does not provide any
indication of what Attesting Detective’s trial testimony might
have been, had he been present to testify. Without knowing
what his testimony would have been, and that it would have
been helpful and admissible, we cannot reach the conclusion that
his live testimony would have made a different trial outcome
reasonably likely. 4

¶31 Finally, the State’s evidence against Delgado was strong.
Three witnesses—Antonio, Miranda, and Simon—each testified
that, in one form or another, Delgado acknowledged to them
that he shot Victim. Two witnesses—Antonio and Ronald—saw
Delgado with a gun during the events in question, and each
identified the gun found in the toilet tank as the gun that had
been in Delgado’s possession. The spent shell casing found at the

4. Indeed, without any information about what Attesting
Detective’s testimony would have been, it is possible to draw an
inference that Delgado may have been better off without it. Had
Attesting Detective appeared at trial and confirmed that he had
no personal knowledge, the search warrant affidavits—which
Delgado admits are his “best evidence” that Antonio was the
shooter—would have been worth a lot less. As it was, with
Attesting Detective not present at trial, Delgado was at least able
to argue, during closing, that Attesting Detective had to have
“got the information [about Antonio holding a gun] from
somewhere,” and that “logic tells you he got it from” one of the
officers on scene who had observed Antonio.

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 State v. Delgado

scene matched the gun found in the toilet tank, and was the
same brand and type as some of the ammunition found in
Delgado’s apartment. The autopsy confirmed that Victim had
not been shot at close range. And both officers who arrived on
scene and saw Antonio standing over Victim testified that
Antonio had no gun, a fact corroborated by the surveillance
video from the camera across the street.

¶32 For these reasons, we conclude that Delgado cannot
demonstrate a reasonable likelihood of a different outcome at
trial had Attesting Detective been present at trial and testified.
Therefore, Delgado’s first claim of ineffective assistance of
counsel fails because Delgado has not demonstrated prejudice.

II

¶33 Second, Delgado claims that his trial attorneys rendered
ineffective assistance by failing to object, pursuant to rule 702 of
the Utah Rules of Evidence, to the admission of the State’s
fingerprint evidence. In particular, Delgado asserts that the
State’s fingerprint evidence was unreliable because the
underlying analysis was not conducted with blind verification.
The State counters by asserting, among other arguments, that,
even if the fingerprint evidence had been excluded, the outcome
of the trial was not reasonably likely to have been different. We
agree with the State.

¶34 We take Delgado’s point that fingerprint evidence can
sometimes be powerful evidence, and, in some cases, even a
single fingerprint can be sufficient to convict a person of a crime.
See, e.g., Howard v. State, 695 S.W.2d 375, 376 (Ark. 1985) (stating
that “fingerprint identification alone is sufficient evidence to
sustain the conviction”). But in this case, the chief value to the
State of the fingerprint evidence was to tie Delgado to the
murder weapon, and to provide evidence that it was Delgado—
rather than someone else—who hid the gun in the toilet tank.

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 State v. Delgado

And on those points, the State’s evidence was strong, and
certainly not dependent upon the fingerprint evidence.

¶35 As noted above, the evidence linking Delgado to the
murder weapon was overwhelming. Two witnesses saw
Delgado in possession of the same weapon during the relevant
time period, and one of those witnesses (Ronald) saw him with it
both immediately before and immediately after the shooting.
Ammunition located inside Delgado’s apartment matched both
the spent shell casing found near the door to the apartment
building, as well as the cartridge found inside the gun. The best
evidence indicating that someone else—Antonio—had a gun
during the relevant period was the language of the search
warrant affidavits, and that evidence was countered by
eyewitness testimony from the two officers who arrived first on
scene, and by the surveillance video footage. Thus, even without
the fingerprint evidence, we are persuaded that the jury
nevertheless would have concluded that Delgado was in
possession of the gun during the relevant time period.

¶36 Similarly, the evidence indicating that Delgado—rather
than someone else—hid the gun in Ronald’s toilet tank was
strong, even excluding the fingerprint evidence. 5 Ronald saw
Delgado with the gun moments after the shooting; Antonio saw
Delgado without the gun, in Antonio’s apartment, just a few
minutes later. During that encounter, Delgado admitted to
Antonio that “he had hid[den] [the gun] and not to worry about
it.” In addition, immediately prior to the shooting, Delgado had

5. It is unclear whether Delgado is even appealing his conviction
for obstruction of justice. As noted, during closing argument he
appeared to nearly acknowledge guilt on that count, and the
State, in its brief on appeal, stated that “Delgado appears to
contest his murder conviction only,” a perception Delgado made
no attempt to refute in his reply brief.

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 State v. Delgado

just been in Ronald’s apartment smoking meth, and in the haste
associated with the developing fight between Antonio and
Victim, Ronald left the door to his apartment unlocked.

¶37 On this record, we are unconvinced that the outcome of
the trial was reasonably likely to have been different, even in the
absence of the fingerprint evidence. Accordingly, Delgado’s
second claim for ineffective assistance fails on the same ground
as his first: because Delgado has not demonstrated prejudice. 6

CONCLUSION

¶38 Delgado has not carried his burden of demonstrating that
his trial attorneys rendered constitutionally ineffective
assistance. Accordingly, we affirm Delgado’s convictions.

6. Because we resolve Delgado’s second claim on prejudice
grounds, we need not consider whether his attorneys performed
deficiently by failing to lodge a rule 702 objection to the
admission of the fingerprint evidence. But we have our doubts
about that part of Delgado’s claim too, given the apparent
strength of the State’s argument that a reasonable attorney in
this case could have decided to forego a likely-futile motion and
opt instead to concentrate on a vigorous cross-examination.
Delgado cites no case in which a court has ruled fingerprint
testimony inadmissible for lack of blind verification, and neither
the literature cited in the briefs nor the testimony from the
witnesses at trial indicates the existence of a scientific consensus,
at the time the relevant fingerprint analysis was conducted,
regarding the necessity of blind verification.

20181040-CA 17 2020 UT App 121