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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JOSHUA JOSEPH RECCHIA, Appellant.

                             No. 1 CA-CR 13-0475
                               FILED 2-17-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-141579-003
                The Honorable Daniel G. Martin, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.
                            STATE v. RECCHIA
                            Decision of the Court

C A T T A N I, Judge:

¶1             Joshua Joseph Recchia appeals his convictions of armed
robbery and kidnapping and the resulting sentences. Recchia argues that
(1) the superior court abused its discretion by denying his motions for
mistrial and new trial based on the State’s failure to disclose a supplemental
police report and rebuttal witness, and (2) prosecutorial misconduct denied
him a fair trial. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            On August 1, 2012, 21-year-old Anthony T. (“the victim”)
received a text message he thought was from his ex-girlfriend asking him
to pick her up at an apartment in northwest Phoenix. He drove to the
apartment complex in his father’s truck. When he went inside the
apartment, he was accosted at gunpoint by Manuel Garza and eight other
people, including Recchia.

¶3            The group of assailants pushed the victim to the ground and
searched his pockets, taking his wallet, keys, cell phone, hat, and shoes.
Overall, they took $30 in cash, debit and credit cards, and a gift card, as well
as the victim’s driver’s license, student ID and Blockbuster card. Garza told
the victim that he would be hurt if he “did anything stupid,” and that both
he and his family would be harmed if he reported the incident to the police.
Garza demanded that the victim tell them his bank account PIN, and one of
the assailants later attempted to cash a $1000 check in the victim’s name.

¶4            The victim was held face-down in a bathtub for
approximately an hour and a half. Recchia yelled at him and threatened
him with a knife during that time. Eventually, one of the assailants forced
the victim at knifepoint to drive the truck to a smoke shop, where he was
forced out of the vehicle. After the assailant and a female passenger drove
away, the victim called the police.

¶5            The police found the victim’s truck in the parking lot of the
apartment complex where he had been assaulted and robbed. Recchia’s
fingerprint was discovered on the truck’s window. Within days of the
incident, the victim identified Recchia in a photo lineup as one of the men
who had threatened him with a knife while he was being robbed.


1      We view the evidence in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against defendant. State
v. Karr, 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008).


                                       2
                            STATE v. RECCHIA
                            Decision of the Court

¶6            A jury found Recchia guilty of armed robbery and
kidnapping, and the superior court sentenced him to concurrent,
aggravated 11-year terms of imprisonment for the two crimes. Recchia
timely appealed from the judgment and sentences. We have jurisdiction
under Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) §§ 12-120.21(A)(1), 13-4031 and -4033.2

                               DISCUSSION

I.     Failure to Disclose/Discovery Violations.

       A.     Supplemental Police Report.

¶7             Recchia argues that the State failed to timely disclose part of
the police report (Supplement Nine) relating to the crime and that the
superior court should have granted a mistrial on that basis.3 Recchia
contends that the State’s failure to timely disclose this supplement, which
apparently included the police report’s only mention of a statement by the
victim that at least one of the assailants was white, “eviscerat[ed]” Recchia’s
defense, which was premised in part on the victim’s asserted failure to
identify any assailant as white.

¶8           During cross-examination, Recchia’s counsel asked Phoenix
Police Detective Gonzalez whether, prior to identifying Recchia in the
photo lineup, the victim had stated that any of the assailants were white.
Detective Gonzalez responded that the victim had done so, as noted in
Supplement Nine to the police report.

¶9           Recchia’s counsel asserted that Supplement Nine had never
been disclosed; the prosecutor in turn avowed that all police reports in his
possession had been provided to defense counsel. Without ruling on
whether there had been a disclosure violation, the court granted a recess to

2     Absent material revisions after the relevant date, we cite a statute’s
current version.

3      We note that the record on appeal does not contain a copy of
Supplement Nine. An appellant is responsible to ensure that the record is
complete. State v. Lujan, 136 Ariz. 326, 328, 666 P.2d 71, 73 (1983); State v.
Kerr, 142 Ariz. 426, 430, 690 P.2d 145, 149 (App. 1984). Generally, we
presume that missing portions of the record support the superior court’s
actions. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). Here,
however, the parties do not dispute the substance of the supplement, but
rather the effect of the alleged disclosure violation.


                                      3
                            STATE v. RECCHIA
                            Decision of the Court

give defense counsel an opportunity to review the supplement. After doing
so, Recchia’s counsel stated he was ready to go forward “right now,” but
reserved the right to recall the witness the next day. The court agreed, and
counsel continued to cross-examine Detective Gonzalez. He continued
cross-examination the following morning.

¶10           Later that day, Recchia moved to dismiss the case with
prejudice. Counsel argued that, because he was not aware of the victim’s
statements as detailed in Supplement Nine, he had told the jury during his
opening statement that the victim had never identified any of his assailants
as being white and that, as a consequence, the jury would now view counsel
as “a liar.” The court denied the motion, reasoning that giving counsel an
opportunity to review the supplement before continuing cross-examination
was an appropriate remedy.

¶11           The superior court has broad discretion to determine whether
to impose a sanction for late disclosure as well as what sanction is
appropriate under the circumstances, and we therefore review its ruling for
an abuse of discretion. State v. Moody, 208 Ariz. 424, 454, ¶ 114, 94 P.3d 1119,
1149 (2004). Because the superior court is in the best position to assess what
damage, if any, has been done by the late disclosure, we defer to that court’s
perspective and judgment concerning the severity of the sanction to
impose. State v. Meza, 203 Ariz. 50, 55, ¶ 19, 50 P.3d 407, 412 (App. 2002).

¶12            Recchia argues that merely allowing time to review the
supplement was an inadequate remedy because the alleged disclosure
violation affected his trial strategy, as evidenced by his counsel’s opening
statement. But there was no dispute that the victim had identified Recchia
in a photo lineup within days of the incident, and in light of this pretrial
identification, whether the victim initially described one of the assailants as
being white was relatively insignificant. Moreover, one of Recchia’s
primary defenses was that he was also a captive of Manuel Garza, a defense
that necessarily acknowledged Recchia’s presence during the incident and
aligned with the undisputed fact that Recchia’s fingerprint was found on
the victim’s vehicle. Accordingly, focusing on the victim’s failure to specify
the race of all of his assailants would not have been a compelling strategy
even without the information in the supplemental report.

¶13           Furthermore, the alleged disclosure violation did not impair
or call into question Recchia’s primary arguments about his role in the
robbery and kidnapping, and the victim’s ability to detail what happened.
Recchia was able to question the victim’s perception of events, highlighting
that the victim misidentified one of the other assailants and failed to note


                                       4
                             STATE v. RECCHIA
                             Decision of the Court

Recchia’s prominent visible tattoos. Similarly, Recchia’s counsel vigorously
cross-examined Detective Gonzalez regarding the accuracy and consistency
of the victim’s statements to police as compared to his trial testimony, as
well as the victim’s perception of events under duress, including his
description of the assailants. Accordingly, Recchia has not established that
he was unfairly prejudiced by the alleged disclosure violation, and the
superior court did not abuse its discretion by denying the motion to dismiss
with prejudice based on the alleged late disclosure. See Moody, 208 Ariz. at
454, ¶ 114, 94 P.3d at 1149.

       B.     Rebuttal Witness.

¶14           Recchia next argues that the superior court erred by denying
his motions for mistrial or for a new trial based on the State’s alleged
nondisclosure of co-conspirator Pete Hernandez as a rebuttal witness. The
victim identified Hernandez in a photo lineup as the man who had forced
him at knifepoint to drive to the smoke shop. Hernandez was charged for
the same crime under a different case number, by a different prosecutor.

¶15            In the instant case, the State’s initial disclosure statement did
not list Hernandez by name but identified “[a]ny individual named or
referred to in the . . . police report” as a potential witness either in its case-
in-chief or in rebuttal. On the second day of trial, the prosecutor raised the
possibility that Hernandez might be called as a rebuttal witness to counter
a defense claim that Recchia was not a willing participant in the crime.

¶16            The State did not call Hernandez as a witness during its case-
in-chief, but sought to call him in rebuttal after Recchia presented witnesses
to support his claim that he had been kidnapped. The prosecutor notified
the court and Recchia’s counsel that Hernandez had not yet signed a
proposed plea agreement but that an agreement would be in place before
Hernandez testified. Recchia’s counsel asked if the person who would be
testifying was “Pete Hernandez, the codefendant,” and requested an
opportunity to review Hernandez’s plea agreement. Without formally
objecting, counsel noted that Hernandez was not listed as a witness for the
State.

¶17          The next morning, Recchia’s counsel moved to limit the scope
of Hernandez’s rebuttal testimony, but did not seek to preclude his
testimony based on surprise or because of an alleged disclosure violation.
The superior court, finding that Recchia had raised a kidnapping defense
in his case-in-chief, allowed the State to call Detective Gonzalez and




                                        5
                            STATE v. RECCHIA
                            Decision of the Court

Hernandez as rebuttal witnesses. The court also gave Recchia’s counsel
additional time to interview Hernandez and review his plea agreement.

¶18             Hernandez testified that, to his knowledge, Recchia had
participated in the robbery voluntarily, not due to any threat. Hernandez
explained that, at Garza’s direction, he, Recchia, and another man, all
armed with knives, had surrounded the victim as planned. Recchia helped
guard the victim, holding a knife to his back while he was in the bathtub.
Hernandez stated that Garza did not threaten any of them to secure their
participation, and that Recchia was free to leave the apartment. Hernandez
also testified that he had told Detective Gonzalez that Recchia had not been
held against his will.

¶19            Although Recchia’s counsel made hearsay and scope
objections to Hernandez’s testimony, counsel did not ask to strike the
testimony as untimely disclosed until after the jury returned guilty verdicts.
At a hearing on Recchia’s motions for reconsideration and to consider the
impact of the failure to disclose Hernandez as a witness prior to the plea
deadline, Recchia’s counsel claimed allowing Hernandez to testify in
rebuttal amounted to “trial by ambush” in that Hernandez had never been
formally disclosed as a witness, counsel had not expected Hernandez to
testify, and counsel’s trial strategy had been affected by this “surprise.” The
superior court denied both of Recchia’s motions, noting that the State’s
initial disclosure statement referred to “[a]ny statements of the defendant
or of any co-conspirators mentioned or contained in the police reports or
other disclosed materials.” The court observed that, although more specific
disclosure would have been preferable, the disclosure was adequate under
the circumstances because the State had disclosed Hernandez’s statements
to Detective Gonzalez, and Recchia knew Hernandez had also been charged
as a result of the incident. Recchia subsequently asserted the same
argument in a motion for new trial, which was also denied.

¶20            Rule 15.1 of the Arizona Rules of Criminal Procedure requires
that, as part of pre-trial discovery, a prosecutor supply a defendant with the
names and relevant written or recorded statements of all persons the
prosecution intends to call in its case-in-chief. Here, the prosecutor did not
intend to call Hernandez in his case-in-chief. Nonetheless, on the second
day of trial, the prosecutor discussed Hernandez as a potential rebuttal
witness, even before Hernandez had entered into a plea agreement, and the
prosecutor kept the parties informed of Hernandez’s pending plea
negotiations.




                                      6
                            STATE v. RECCHIA
                            Decision of the Court

¶21            Recchia’s counsel never claimed to be unaware of
Hernandez’s identity or role in the robbery. Although Hernandez was not
a co-defendant and was not specifically named in the State’s disclosure
document, defense counsel knew of Hernandez’s involvement in the
charged offenses, and of his interview with the case agent, as detailed in
Detective Gonzalez’s report. While the better practice would have been to
include Hernandez’s name in the disclosure document, the State’s
disclosure of “[a]ny individual named or referred to in the . . . police report”
as a witness and “[a]ny statements of . . . any co-conspirators mentioned or
contained in the police reports” as other evidence gave Recchia sufficient
notice that Hernandez might be called as a witness. See State v. Armstrong,
208 Ariz. 345, 353, ¶¶ 38–39, 93 P.3d 1061, 1069 (2004) (holding that the State
did not violate Rule 15.1 when it made a belated disclosure as a result of the
witness’s last minute decision to enter into a plea agreement in exchange
for her testimony).

¶22            Additionally, even assuming the State’s failure to specify
Hernandez by name amounted to a disclosure violation, the superior court
appropriately addressed the alleged violation by granting defense counsel
an opportunity to review the police reports and plea agreement and to
interview Hernandez. The purpose of Rule 15.1 is “to give full notification
of each side’s case-in-chief so as to avoid unnecessary delay and surprise at
trial.” Armstrong, 208 Ariz. at 353, ¶ 38, 93 P.3d at 1069 (citation omitted).
As the Arizona Supreme Court has noted, the superior court “should seek
to apply sanctions that affect the evidence at trial and the merits of the case
as little as possible, since the Rules of Criminal Procedure are designed to
implement, and not to impede, the fair and speedy determination of cases.”
Id. at 353–54 ¶¶ 40–41, 93 P.3d at 1069–70.

¶23             Here, there is no indication that the alleged nondisclosure
caused surprise such that Recchia’s counsel was unable to mount a defense.
We note that, beyond the opportunity granted by the court, defense counsel
never sought additional time to interview Hernandez or review the plea
agreement.        Moreover, defense counsel thoroughly cross-examined
Hernandez about discrepancies between his testimony and his prior
statements to Detective Gonzalez, including the fact that Hernandez
initially lied to Detective Gonzalez about his own involvement in the
offenses and the fact that Hernandez only agreed to testify after receiving a
favorable plea agreement. Recchia’s counsel also effectively cross-
examined Detective Gonzalez about inconsistencies between Hernandez’s
trial testimony and his prior statements. Counsel was thus able to
emphasize that Hernandez had not provided many of the details he related
at trial until after he obtained a plea agreement. Because Recchia knew the


                                       7
                            STATE v. RECCHIA
                            Decision of the Court

substance of Hernandez’s prior statements to police, he has not shown
surprise or prejudice stemming from the alleged untimely disclosure.

¶24           The remedies imposed by the superior court following
Hernandez’s disclosure as a rebuttal witness were appropriate under the
circumstances. Accordingly, the court did not err by denying Recchia’s
requests for a mistrial or for new trial.

II.    Prosecutorial Misconduct.

¶25           Recchia alleges several instances of prosecutorial misconduct
during closing argument. He claims that the prosecutor improperly
reserved the bulk of his argument for rebuttal closing, improperly reserving
matters that should have been presented in the initial closing argument. He
also maintains that the prosecutor improperly maligned defense counsel,
and that the prosecutor’s actions ultimately deprived him of a fair trial.
Because Recchia did not raise these objections before the superior court, we
review only for fundamental, prejudicial error. See State v. Henderson, 210
Ariz. 561, 567, ¶¶ 19–20, 115 P.3d 601, 607 (2005).

¶26           A prosecutor’s comments constitute misconduct if the
comments called to the jurors’ attention matters that should not have been
considered and the jurors probably were influenced by those remarks. State
v. Newell, 212 Ariz. 389, 402, ¶ 60, 132 P.3d 833, 846 (2006). To warrant
reversal, a defendant must show that the offending comments, when
considered within the proceeding as a whole, “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Id.
(citation omitted).

¶27            Recchia’s claim of misconduct based on the prosecutor’s
choice to expend more time in rebuttal argument fails. Recchia cites no rule
or other authority that prescribes a length of time for either an initial or
rebuttal closing statement in a criminal trial, and the civil cases on which he
relies, Carlton v. Emhardt, 138 Ariz. 353, 674 P.2d 907 (App. 1983), and
Hubbard v. Matlock, 24 Ariz. App. 554, 540 P.2d 173 (1975), are unavailing.
Emhardt discusses how a joint pretrial statement controls the course of civil
litigation, thereby avoiding trial by “ambush.” 138 Ariz. at 355, 674 P.2d at
909. And Hubbard simply establishes that the scope of a plaintiff’s rebuttal
is limited to arguments raised in the defendant’s closing. 24 Ariz. App. at
556, 540 P.2d at 175. Here, although the prosecutor’s rebuttal closing was
longer than the brief initial closing argument, the rebuttal appropriately
addressed issues raised in defense counsel’s closing arguments, such as
conflicts in the victim’s testimony, Hernandez’s plea agreement as



                                      8
                            STATE v. RECCHIA
                            Decision of the Court

motivation to testify in the State’s favor, and the police’s failure to
investigate Recchia’s claim that he was also kidnapped.

¶28           Recchia also argues that the prosecutor’s references to
Hernandez’s testimony in rebuttal closing were not proper rebuttal, but
rather “substantive, direct evidence” saved until after the defense closing
for strategic reasons. We note that the jury was instructed that the
arguments of counsel are not “evidence,” and we presume the jury
followed that instruction. State v. Velazquez, 216 Ariz. 300, 312 ¶ 50, 166 P.3d
91, 103 (2007).     More importantly, the prosecutor’s references to
Hernandez’s testimony being consistent with his pre-trial (and pre-plea
agreement) statements were in direct response to defense counsel’s
attempts to depict Hernandez as the State’s “puppet,” who had tailored his
testimony in exchange for a favorable plea agreement. The prosecutor’s
comments were therefore within the proper scope of rebuttal. See State v.
Hernandez, 170 Ariz. 301, 307–08, 823 P.2d 1309, 1315–16 (App. 1991).

¶29            Recchia next argues that the prosecutor improperly
impugned defense counsel by calling him “juvenile” and by stating that
counsel was leading jurors astray or “down the garden path.” Prosecutors
are allowed “wide latitude” during closing arguments, State v. Jones, 197
Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000), although it is improper to impugn
the integrity or honesty of opposing counsel. Newell, 212 Ariz. at 403, ¶ 66,
132 P.3d 847. Here, the prosecutor’s comments—although perhaps not
artfully stated—were not personal attacks on defense counsel’s integrity,
but rather were responsive to defense counsel’s repeated references to
Hernandez as the State’s “puppet,” as well as to defense arguments the
prosecutor characterized as “red herrings.” Viewed in context, the
prosecutor’s comments were within the range of permissible argument.

¶30            Finally, Recchia argues that the prosecutor improperly
appealed to “the passions, fears and vulnerabilities of the jury” to obtain a
verdict. See, e.g., State v. Hughes, 193 Ariz. 72, 88, ¶ 70, 969 P.2d 1184, 1200
(1998) (noting that it is improper argument to appeal to “fear”). The
prosecutor ended his rebuttal by admonishing the jurors, “Don’t be an
accomplice to the defendant’s actions” by accepting Recchia’s position that
he, too, was a victim. While the prosecutor’s statement was arguably
improper, it was a single statement in an otherwise appropriate argument,
and thus did not “permeate[] the entire atmosphere of the trial” and thereby
deprive Recchia of a fair trial. See id. at 79, ¶ 26, 969 P.2d at 1191 (citation
omitted). Accordingly, Recchia has not established error, much less the
fundamental error warranting reversal. See Henderson, 210 Ariz. at 567, ¶
20, 115 P.3d at 607.


                                       9
                   STATE v. RECCHIA
                   Decision of the Court

                     CONCLUSION

¶31   Recchia’s convictions and sentences are affirmed.




                         :ama




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