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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 3-20-2018
STATE v. BUTITTA

Decision of the Court

2

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).
STATE v. BUTITTA

Decision of the Court

3

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 
STATE v. BUTITTA

Decision of the Court

4

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 illwill, 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 

read3 the following text message exchange between Butitta and Hatcher 

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 . . . 
STATE v. BUTITTA

Decision of the Court

5

[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.” 
STATE v. BUTITTA

Decision of the Court

6

[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 
STATE v. BUTITTA

Decision of the Court

7

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. 
STATE v. BUTITTA

Decision of the Court

8

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, 
STATE v. BUTITTA

Decision of the Court

9

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).
STATE v. BUTITTA

Decision of the Court

10

¶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.