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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

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2

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).
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¶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.
STATE v. RECCHIA

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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 
STATE v. RECCHIA

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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 casein-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 casein-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 
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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.
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¶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 crossexamined 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 
STATE v. RECCHIA

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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 
STATE v. RECCHIA

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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.
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CONCLUSION

¶31 Recchia’s convictions and sentences are affirmed.