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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JOSEPH CHARLES BUTITTA, Appellant.

                              No. 1 CA-CR 17-0204
                                FILED 3-20-2018


            Appeal from the Superior Court in Yavapai County
                         No. P1300CR201501012
                 The Honorable Michael R. Bluff, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

C. Kenneth Ray II, P.L.L.C., Prescott
By C. Kenneth Ray II
Counsel for Appellant
                           STATE v. BUTITTA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco1 delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.


O R O Z C O, Judge:

¶1             Joseph Charles Butitta appeals his convictions and sentences
for drive-by shooting, three counts of aggravated assault, criminal damage,
endangerment, disorderly conduct, child abuse, conspiracy to commit
tampering with a witness, and tampering with physical evidence. He
argues the trial judge should have recused himself from this case, and the
court erred in denying a motion for mistrial and admitting evidence.
Butitta also contends the prosecutor engaged in misconduct, which resulted
in an unfair trial. For the following reasons, we affirm.

                FACTS2 AND PROCEDURAL HISTORY

¶2            Butitta was driving his Toyota 4-Runner at night with his
girlfriend, Tara Hatcher, and his young son, X.C., from a previous
relationship with M.C., when he began following a pickup truck that had
passed him. Butitta repeatedly flashed his hi-beams at the truck and
otherwise drove aggressively. When the pickup turned a corner, Butitta
fired a handgun, striking the truck several times. None of the truck’s
occupants, a 24-year-old driver and two 14-year-old boys, were physically
injured. One of the bullets struck a nearby house, nearly penetrating the
bedroom wall of a sleeping 16-year-old girl.

¶3           The police investigation eventually focused on a black
4-Runner parked behind Butitta’s home. Butitta’s neighbor informed police
that he recognized the 4-Runner as belonging to Butitta. Neighbors also


1      The Honorable Patricia A. Orozco, retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Butitta. See State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015).



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                           Decision of the Court

reported glass technicians had visited Butitta’s home and replaced the 4-
Runner’s windshield a day or two after the shooting. Neighbors explained
that Butitta typically parked the vehicle in the front driveway.

¶4             Police executed a search warrant at Butitta’s residence and
discovered the 4-Runner’s title indicating Butitta owned the vehicle.
Officers also located a receipt for a handgun and ammunition that matched
the caliber of spent shells found at the crime scene, and they obtained text
messages between Butitta and M.C. and Butitta and Hatcher implicating
him in the shooting. One of the messages from Butitta to Hatcher the day
after the shooting exclaimed he “made [X.C.] promise me . . . that we can’t
talk about that ever again.” Finally, officers located Butitta’s discarded
windshield, forensic testing of which revealed “particles characteristic of
gunshot residue” on the interior driver’s side surrounding a 3 to 4-inch
hole.

¶5            Butitta and Hatcher were tried together, and the jury found
Butitta guilty of ten criminal offenses related to the shooting. The court
imposed a combination of consecutive and concurrent minimum prison
terms totaling 8.5 years followed by three years of supervised probation.
Butitta timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and
13-4033(A)(1).

                               DISCUSSION

I.    Judicial Bias

¶6             At the beginning of the trial’s second day, defense counsel
requested the judge disqualify himself pursuant to Arizona Rule of the
Supreme Court 81, Canon 2.11, because counsel had just learned the judge
had a prior business relationship with Butitta’s aunt. The judge inquired
into the aunt’s occupation, and when counsel informed him she is a real
estate agent, the judge remembered listing a commercial building with her
from January 2011 until October 2012. The judge explained he had not been
in contact with the aunt since the listing expired without the property being
sold. The judge also noted, “We probably spoke less than a half a dozen
times during that year-and-a-half.” Defense counsel, alleging “the
appearance of impropriety[,]” then read the following message from the
aunt that he received that morning:

      I had his building listed in Clarkdale. [The trial judge] and
      his wife . . . got a divorce while I had the listing, so they split
      property and he kept the building. His brother works out of


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                            Decision of the Court

       it. They own a construction company. I have been in the back
       offices of the [courthouse] . . . countless with [sic] [another
       judge] . . . . [The trial judge] always gives me a hug.

¶7            Finding no basis for disqualification, the court denied
Butitta’s request. On appeal, Butitta contends the court’s ruling amounted
to reversible error. We review for an abuse of discretion. State v. Ramsey,
211 Ariz. 529, 541, ¶ 37 (App. 2005).

¶8             “A trial judge is presumed to be free of bias and prejudice.”
State v. Hurley, 197 Ariz. 400, 405, ¶ 24 (App. 2000). To overcome this
presumption, a party requesting recusal must “set forth a specific basis for
the claim of partiality and prove by a preponderance of the evidence that
the judge is biased or prejudiced.” State v. Medina, 193 Ariz. 504, 510, ¶ 11
(1999). “Bare allegations of bias and prejudice, unsupported by factual
evidence, are insufficient to overcome the presumption of impartiality and
do not require recusal.” State v. Carver, 160 Ariz. 167, 173 (1989).
Specifically, the moving party must establish “a hostile feeling or spirit of
ill-will, or undue friendship or favoritism, towards one of the litigants.” In
re Guardianship of Styer, 24 Ariz. App. 148, 151 (1975).

¶9              Butitta fails to produce sufficient evidence to rebut the
presumption of impartiality. Butitta’s contention that the trial judge “did
not acknowledge . . . the assertion by [the aunt] of her more personal
acquaintance with the Trial Judge during times she would visit [another
judge]” and the fact the listed property did not sell during the aunt’s listing
of the property are not facts that establish “a hostile feeling or spirit of ill-
will, or undue friendship or favoritism, towards one of the litigants.” Id.
Butitta’s aunt was not one of the litigants in this case, and she was not a
witness or involved in the case in any manner. Butitta’s speculation of
judicial bias is insufficient. The court did not abuse its discretion in denying
Butitta’s recusal request.

II.    Motion for Mistrial: The Prosecutor’s Opening Statement

¶10          During his opening statement, the prosecutor apparently
read the following text message exchange between Butitta and Hatcher
     3

that occurred the day after the shooting and was set forth in Exhibit 126:


3      The opening statements are not in the record. However, the record
does indicate Butitta’s verbal motion for mistrial after opening statements
concluded. Butitta argued the basis for his motion as follows: “[I]t’s . . .



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                            Decision of the Court

      [Butitta]: I am so sorry Tara.

      [Butitta]: I’m . . . freaking out babe.

      [Butitta]: I’m so . . . stupid . . . God please don’t let this catch
      up to me. Please.

      [Hatcher]: This goes to the grave with us.

      [Butitta]: I really hope so. I can’t believe I [put] you guys
      through that. I’m a horrible horrible father.

      [Hatcher]: [It] had to been [sic] a stolen vehicle. We just need
      to at this point manipulate [X.C.].

      [Butitta]: I’m just really really worried that someone got a look
      at my truck. I’m . . . terrified.

      [Butitta]: I just told him that we can’t talk about that ever
      again and made him promise me.

      [Hatcher]: Yikes well all we can do is hope and pray he keeps
      his mouth shut.

      [Hatcher]: [It] probably wouldn’t hurt to park your truck in
      the back for a while.

      [Hatcher]: Shit this isn’t looking good on Prescott area
      uncensored.

      [Butitta]: I can’t breathe.

      [Hatcher]: If someone was behind us then they would have
      had to [see] your logo but nothing is coming up about that, it
      will be forgotten about by tomorrow, people are gossiping at
      this point.

      [Butitta]: I really hope so baby. I’m . . . shaking uncontrollably
      and my chest hurts so bad. I’m so so so sorry Tara.




improper for the State in its opening argument to tell the jurors what
evidence is and indeed read the [text messages] to the jurors without [them]
first having been received by the Court.”


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                              STATE v. BUTITTA
                              Decision of the Court

       [Butitta]: If all else fails I’m going to lie my ass off and say
       [that] the truck had [to have] been stolen cause we were home
       sleeping when that happened.

       [Hatcher]: I’m deleting all of them.

       [Butitta]: Headlight fixed.

       [Hatcher]: Delete all of our messages.

       [Hatcher]: Aubrey said the windshield is ordered but won’t
       be here till [W]ed.

       [Hatcher]: Jared saw us with no headlight.

       [Hatcher]: They . . . still think it’s a jeep.

       [Hatcher]: Just don’t over feed into it. Tell her we’ve been
       practicing a lot (and we usually have some of the kids with
       us) due to all the bullshit that has been going on with break
       ins and car thefts and armed robberys [sic] and shootings, and
       that you sold it a few weeks ago cause you need money to
       move.

       [Hatcher]: At least your windshield comes tomorrow :)

       [Hatcher]: Delete all our messages.

       [Butitta]: And deactivate your [Facebook account].

       [Hatcher]: I think I did, gonna try to sleep I’m home.

¶11            Butitta moved for a mistrial, arguing the prosecutor
improperly referred to Exhibit 126 before it was admitted. Without
objection, the court reserved ruling on the motion until the State concluded
its case-in-chief. The court reasoned that, by waiting until the State
presented its case, the court could “see whether or not the evidence would
have otherwise come in and then I can determine whether there’s any
prejudice.” The court ultimately denied the mistrial motion.

¶12            For the reasons set forth infra, Exhibit 126 was admissible.
Therefore, the prosecutor’s forecast was not improper because “there was
justification for believing [the] evidence . . . would be presented.” State v.
Bowie, 119 Ariz. 336, 339-40 (1978). Additionally, the court’s instructions to
the jurors—that they were to consider only the evidence presented to them


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                            STATE v. BUTITTA
                            Decision of the Court

and that the statements of the attorneys were not evidence—cured any
potential prejudice. See id. at 340 (“Any possible prejudice from the opening
statement was overcome by the court’s cautionary instructions that
evidence did not come from the attorneys and that the verdict must be
determined only by reference to the evidence . . . .”).

¶13             Butitta also argues the “willful and intentional violation of
Trial protocol must be ruled upon immediately,” and the court’s decision
to delay its ruling—which Butitta characterizes as “Judicial
overreaching”—violated his due process rights. Butitta cites no authority
supporting his contention that the trial court was required to immediately
rule on his mistrial motion. See Ariz. R. Crim. P. 31.10(a)(7)(A) (“An
appellant’s opening brief must set forth . . . appellant’s contentions with
supporting reasons for each contention, and with citations of legal
authorities . . . on which the appellant relies.”). And the cases he does cite
are inapposite. See State v. Marquez, 113 Ariz. 540, 542 (1976) (explaining
double jeopardy bars re-prosecution of a defendant who successfully seeks
a mistrial due to prosecutorial or judicial overreaching); State v. Aguilar, 217
Ariz. 235, 238, ¶ 10 (App. 2007) (same). Accordingly, Butitta fails to
establish an abuse of discretion. See Pool v. Superior Court In & For Pima
County, 139 Ariz. 98, 102 (1984) (giving trial court discretion to declare
mistrial).

III.   Admissibility of Exhibit 1264

¶14           As he did at trial, Butitta argues, without relying on
controlling authority, Exhibit 126 was inadmissible because it lacked
sufficient authentication and foundation as to the authors and recipients of
the text messages. We review for an abuse of discretion. State v. George, 206
Ariz. 436, 446, ¶ 28 (App. 2003).

¶15           Evidence is authenticated when there is “evidence sufficient
to support a finding that the item is what the proponent claims it is.” Ariz.
R. Evid. 901(a). “In ruling on authentication, the superior court ‘does not
determine whether the evidence is authentic, but only whether evidence


4      Butitta also challenges the admission of Exhibits 149 and 150. Those
exhibits are more complete records relating to Butitta’s and Hatcher’s cell
phones, from which a detective “carved out the relevant text messages” to
create Exhibit 126. Butitta does not argue Exhibits 149 and 150 were
improperly admitted for reasons different from the basis for his challenging
Exhibit 126’s admissibility. Thus, because we reject Butitta’s challenge to
Exhibit 126, we also conclude Exhibits 149 and 150 were admissible.


                                       7
                            STATE v. BUTITTA
                            Decision of the Court

exists from which the jury could reasonably conclude that it is authentic.’”
State v. Damper, 223 Ariz. 572, 576, ¶ 18 (App. 2010) (quoting State v. Lavers,
168 Ariz. 376, 386 (1991)). Arizona courts have adopted “a flexible
approach,” which allows the “trial court to consider the unique facts and
circumstances in each case—and the purpose for which the evidence is
being offered—in deciding whether the evidence has been properly
authenticated.” State v. Haight–Gyuro, 218 Ariz. 356, 360, ¶ 14 (App. 2008).

¶16            Here, sufficient evidence exists from which the jury
reasonably could have concluded Exhibit 126 reflected an exchange of text
messages between Butitta and Hatcher. Testimony and phone records
admitted in evidence established that the text messages were sent to and
from phone numbers that were assigned to Butitta and Hatcher. Butitta’s
ex-wife testified that she frequently communicated with Butitta by text, and
he never allowed anyone to use his phone for any reason. Trial testimony
also established that Hatcher’s phone was password protected, indicating
she alone had access to the device. Furthermore, the messages were sent
the day after the shooting, and they referred to information that directly
and circumstantially identified Butitta and Hatcher. For example, Butitta
referred to Hatcher by name, Butitta expressed fear about his truck being
identified, Butitta and Hatcher both mentioned X.C. and referred to
manipulating him not to say anything incriminating, Butitta informed
Hatcher he had fixed the 4-Runner’s headlight—which the victims had
described as malfunctioning—and Hatcher mentioned Butitta’s new
windshield arriving the following day. On this record, the trial court did
not abuse its discretion in concluding the jury could determine Exhibit 126
contained text messages between Butitta and Hatcher.

IV.    Prosecutorial Misconduct

¶17            Butitta argues he was entitled to a mistrial because the
prosecutor engaged in misconduct during rebuttal closing argument by
making disparaging comments about defense counsel’s credibility.
Specifically, Butitta complains about the following highlighted statements:

       For [defense] counsel to suggest to you that it would be
       impossible for casings to wind up outside of a vehicle if they
       had been shot from within the vehicle is baloney. That’s
       speculation.

       One comment counsel indicated in the beginning of his
       [re]marks, [defense counsel], no mention in the 911 call,




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                             STATE v. BUTITTA
                             Decision of the Court

       urging you over and over to look at this 911 call about a
       headlight out. That’s false.

       [K.B.] mentioned a headlight out in the 911 call. When Jeff
       gets on the phone, he mentions a headlight out. That’s in the
       911 call. That’s just calling into question the credibility of counsel
       in all of his remarks when he blatantly told you something that is
       not accurate.

       What about the 911 call? What we do know from the
       testimony of [O]fficer Cozens is dispatch records all the calls
       that are coming in and there may be calls regarding other
       incidents or other reports coming in at the same time.

       So do we know? Some of these calls, some of these later
       reports, do they deal with the shooting that occurred on
       Robert and Loos on July 26th? We don’t know that. That’s
       speculation. But like a side show con man, counsel wants to say
       look over here, look over here.

¶18            “To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that the prosecutor’s misconduct ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.’” State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Reversal based on “prosecutorial
misconduct requires that the conduct be ‘so pronounced and persistent that
it permeates the entire atmosphere of the trial.’” Id. (quoting State v. Atwood,
171 Ariz. 576, 611 (1992)).

¶19            When considering a motion for a mistrial based on
prosecutorial misconduct, a trial court should first consider “whether the
prosecutor’s statements called jurors’ attention to matters the jury was not
justified in considering in determining its verdict,” and then the impact
those statements had on the jury. State v. Lee, 189 Ariz. 608, 616 (1997).
“Jury argument that impugns the integrity or honesty of opposing counsel
is . . . improper.” Hughes, 193 Ariz. at 86, ¶ 59. However, “[c]riticism of
defense theories and tactics is a proper subject of closing argument.” United
States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). Specifically, the
Arizona Supreme Court has held that a prosecutor’s statements that
defense counsel “‘blind sided’ witnesses,” created a “smoke screen,” and
“relied on ‘innuendo and inference’ to support her theory” or “outrageous
argument” was “not improper.” State v. Amaya-Ruiz, 166 Ariz. 152, 171
(1990).



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                           STATE v. BUTITTA
                           Decision of the Court

¶20           Applying the foregoing principles to the challenged
statements in this case, we conclude that the first three examples are not
improper. Rather, those statements properly referred to the trial evidence
and challenged defense counsel’s arguments. See State v. Bible, 175 Ariz.
549, 602 (1993) (“[D]uring closing arguments counsel may summarize the
evidence, make submittals to the jury, urge the jury to draw reasonable
inferences from the evidence, and suggest ultimate conclusions.”). The
statement referring to defense counsel as a “a side show con man,”
however, was improper, and an unprofessional and disrespectful attack on
defense counsel. See Hughes, 193 Ariz. at 86, ¶ 59. Nonetheless, the
comment occurred once at the conclusion of a lengthy trial and, therefore,
was not “so pronounced and persistent that it permeate[d] the entire
atmosphere of the trial.” Id. at 79, ¶ 26. The trial court did not abuse its
discretion by denying Butitta’s request for a mistrial based on prosecutorial
misconduct. See State v. Jones, 197 Ariz. 290, 305, ¶ 37 (2000) (“[E]xcessive
and emotional language is the bread and butter weapon of counsel’s
forensic arsenal, limited by the principle that attorneys are not permitted to
introduce or comment upon evidence which has not previously been
offered and placed before the jury.”) (quoting State v. Gonzales, 105 Ariz.
434, 437 (1970)).

                              CONCLUSION

¶21           Butitta’s convictions and sentences are affirmed.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA




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