SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-02-0044-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR-43804
ROBERT JOE MOODY, )
) O P I N I O N
Appellant. )
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Michael J. Cruikshank, Judge
CONVICTIONS AFFIRMED;
SENTENCE VACATED AND REMANDED
JANET A. NAPOLITANO, FORMER ARIZONA ATTORNEY GENERAL Phoenix
TERRY GODDARD, ARIZONA ATTORNEY GENERAL
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Donna J. Lam, Assistant Attorney General Tucson
Attorneys for State of Arizona, Appellee
SUSAN A. KETTLEWELL, PIMA COUNTY PUBLIC
DEFENDER’S OFFICE Tucson
by Frank P. Leto, Deputy Public Defender
and Brian X. Metcalf, Deputy Public Defender
Attorneys for Robert Joe Moody, Appellant
B E R C H, Justice
¶1 In 2001, Appellant Robert Joe Moody was convicted of
two counts of first degree murder for the deaths of Michelle
Malone and Patricia Magda. The trial judge sentenced him to
death pursuant to Arizona Revised Statutes (“A.R.S.”) § 13-703
(Supp. 1993). An automatic Notice of Appeal was filed pursuant
to Rule 31.2(b) of the Arizona Rules of Criminal Procedure.
This court has jurisdiction under Article 6, Section 5(3) of the
Arizona Constitution and A.R.S. § 13-4031 (2001).
I. FACTS1
¶2 On November 15, 1993, Robert Moody drove to the home
of his ex-girlfriend’s friend, Michelle Malone. After
ascertaining that Malone was alone, Moody knocked on the door.
Malone answered and let him in.
¶3 Moody followed Malone into the kitchen. There, he
pulled a kitchen knife from his coat pocket and attacked her.
Malone tried to defend herself, cutting her hand in the process.
Moody held Malone by the neck and forced her into her home
office, where he emptied her purse and took cash, a checkbook,
and some credit cards. He ordered Malone to write a check for
$500. Because that check was smeared with blood, he made her
1
On appeal, this court views the facts presented in the
trial court “in the light most favorable to sustaining the
verdict.” State v. Dann, 205 Ariz. 557, 562 n.1, 74 P.3d 231,
236 n.1 (2003) (citing State v. Gallegos, 178 Ariz. 1, 9, 870
P.2d 1097, 1105 (1994)). Many of the facts are reprinted from
the court’s earlier decision in this case, which is reported at
State v. Moody, 192 Ariz. 505, 506, ¶¶ 2-6, 968 P.2d 578, 579
(1998). We reproduce the facts in substantial part because they
are necessary to the disposition of some of the issues raised in
this appeal, adding others as necessary for a complete
understanding of new issues raised.
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write another.
¶4 He then forced Malone back to the kitchen and tied her
to a chair with some telephone cords that he had ripped from the
wall. He dragged her – still tied to the chair – into a
bedroom, where he found a .22 caliber rifle and a Winchester 12-
gauge shotgun in a closet. He hit Malone over her head with a
BB gun, then shot her several times with the .22 caliber rifle,
re-loading between each shot. After shooting Malone, Moody
found a Ruger .22 caliber pistol in a chest of drawers and
placed the pistol in his pocket. He then wrapped the rifle and
shotgun in a blanket and drove home and went to sleep.
¶5 Five days later, Moody went next door to Patricia
Magda’s home. After they talked for a while and smoked a few
cigarettes, Moody followed Magda down a hallway to see a
Christmas calendar she had made. Moody pushed her to the floor,
then bound her wrists and ankles with neckties he had brought
with him. In the kitchen, he found Magda’s purse, from which he
took cash and credit cards. After yanking the phone cords from
the wall, Moody returned to Magda and demanded the personal
identification number (“PIN”) for her bank card. After she gave
him a number, he tied her up, covered her with a rug and weighed
her down by putting a chair on her.
¶6 Moody drove Magda’s car to a Bank of America and tried
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to withdraw money using her bank card. When he was unable to
get any money, he returned to Magda’s home and again demanded
her PIN number. He went back to the bank and withdrew $300. He
then returned to Magda’s home, slit her throat, stabbed her in
the back, and bludgeoned her to death with hedge clippers. He
removed the neckties he had used to bind her, wrapped them in a
towel in the kitchen, and left the house. He put his luggage
into Magda’s car and drove away.
¶7 About a month later, on December 20, 1993, Moody broke
and climbed through a kitchen window into the Yuma, Arizona home
of Mary DeForest, his ex-wife’s sister. After demanding cash
and guns, Moody tied DeForest up, ordered her and her two sons
into a closet, and nailed the door shut. He took DeForest’s
purse and left in her Suburban, leaving Magda’s car behind.
¶8 After leaving DeForest’s house, Moody drove to Las
Vegas before eventually proceeding to California. At
approximately 3:00 a.m. on January 4, 1994, Moody flagged down
San Bernadino County Deputy Joseph Duarte in Baker, California.
Moody identified himself to Deputy Duarte as “Todd Joe Williams”
and claimed that his car had been stolen about three hours
earlier by a black male hitchhiker he had picked up outside of
Las Vegas. When asked for specific information about the
vehicle, Moody could say only that it was a blue and gray
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Suburban. He was unable to give the officer a vehicle
identification number, license plate number, or any other
information. Deputy Duarte took Moody to the Sheriff’s Office
for further questioning. When Moody was unable to provide any
further information regarding the vehicle, he was released.
¶9 Between 4:00 and 4:30 p.m. that same day, Moody
appeared at a rescue mission in Santa Ana, California. He told
the mission’s director, Reverend James Womack, that he had no
idea who he was or where he was from, although he thought his
name was Bob. Reverend Womack advised him to contact the
police.
¶10 Approximately two hours later, a paroled felon named
Carlos Logan was arrested outside the Los Angeles Airport for
driving Mary DeForest’s stolen Suburban.
¶11 The next morning, January 5, 1994, Moody went to the
Orange County Sheriff’s Department and told two uniformed police
officers that he had amnesia and knew only that his first name
was Bob. The officers fingerprinted him, leading to the
discovery of warrants for the murders of Michelle Malone and
Patricia Magda. The officers arrested Moody and told him that
he had killed two people. Looking confused, Moody replied, “I
did?” Later that day, Tucson Police Department Detective Karen
Wright and Pima County Sheriff’s Department Detectives Michael
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Ying and Bryce Tipling flew to California to interview Moody on
videotape before transporting him to Tucson. Throughout the
interview, Moody maintained that he woke up on a bench on
January 4th, did not know how he got there or who he was, and
had no memory of events before 12:30 p.m. of that day. Moody
was then returned to Arizona to stand trial for the murders of
Michelle Malone and Patricia Magda.
II. PROCEDURAL HISTORY
¶12 On February 1, 1994, the State presented evidence of
the murders of Michelle Malone and Patricia Magda to a grand
jury. At that hearing, Tucson Police Detective Karen Wright
testified that Carlos Logan, the paroled felon who was arrested
for driving Mary DeForest’s Suburban, had informed detectives
that he had traded cocaine for the car with the vehicle’s owner,
a white male named “Bob,” who had bragged at the time about
killing two people in Tucson and being profiled on “America’s
Most Wanted.” The grand jury indicted Moody for the two
murders.
¶13 Pima County Public Defender Daniel Grills was
appointed to represent Moody. On June 21, 1995, at Moody’s
demand, Grills filed a motion to withdraw as counsel. Moody
later filed a motion waiving his right to counsel and asserting
his right to represent himself. On July 13, 1995, the court had
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a hearing on the motions at which Moody testified to his desire
to represent himself. The court found his waiver of counsel
knowing, intelligent, and voluntary. The case proceeded to
trial and Moody defended himself solely on the ground that his
participation in the crimes was involuntary because aliens took
control of his body and made him kill Michelle Malone and
Patricia Magda, rendering Moody a mere unconscious observer of
the murders. He was convicted on both counts and was sentenced
to death after an aggravation and mitigation hearing.
¶14 On appeal, this court found that Moody was denied his
right to counsel and reversed his convictions and remanded the
case for a new trial. State v. Moody, 192 Ariz. 505, 509, ¶ 24,
968 P.2d 578, 582 (1998). Moody was retried in May 2001. For
the retrial, John Seamon was appointed to represent Moody. He
filed several motions to determine Moody’s competency. After a
hearing on the eve of trial, the court found no reason to
question Moody’s competency to stand trial, confirming earlier
rulings to the same effect. Moody immediately announced that he
would not attend his trial because it was “illegal.”
¶15 Jury selection in Moody’s second trial began the next
day. After a fifteen-day trial, the jury again convicted Moody
of both murders.
¶16 Following an aggravation/mitigation hearing, the trial
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judge found the multiple conviction, pecuniary gain, and
especially cruel, heinous or depraved aggravating factors
applicable to both murders. The court found that the defense
failed to prove any statutory mitigating factors, but did prove
four non-statutory mitigating factors: lack of prior criminal
history, good employment history, military service, and non-
violent character. But weighing the mitigating factors against
the three aggravating factors, the court concluded that they
were insufficient to call for leniency and imposed a sentence of
death for each homicide.
III. TRIAL ISSUES
A. Double Jeopardy Bar of the Second Trial
¶17 Moody argues that the second trial should have been
barred by the Double Jeopardy Clauses of the United States and
Arizona Constitutions. See U.S. Const. amend. V; Ariz. Const.
art. 2, § 10. He makes two separate double jeopardy arguments.
First, he argues that double jeopardy should have barred retrial
because the prosecutor committed egregious misconduct in the
first trial. Alternatively, he argues that the principles of
double jeopardy should have prevented the State from improving
its case at the second trial.
1. Double Jeopardy Bar of Retrial
¶18 Whether double jeopardy bars retrial is a question of
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law, which we review de novo. State v. Siddle, 202 Ariz. 512,
515, ¶ 7, 47 P.3d 1150, 1153 (App. 2002).
¶19 Two months before his second trial, Moody filed a
motion to dismiss the case and preclude retrial because of
prosecutorial misconduct occurring before and during his first
trial. Moody claimed that the prosecutor committed misconduct
in the first trial by providing false information to the mental
health experts and intentionally interfering with his
relationship with his attorney. Consequently, he argued, the
principles of double jeopardy should have barred retrial. The
motion was denied and the case proceeded to trial. Moody raises
this claim again on appeal.
¶20 Traditionally, this court has extended double jeopardy
protection based on prosecutorial misconduct only to cases in
which the defendant moves for mistrial on those grounds. See
Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-
72 (1984) (holding that “jeopardy attaches under art. 2, § 10 of
the Arizona Constitution when a mistrial is granted” and other
specified conditions are met); see also State v. Jorgenson, 198
Ariz. 390, 392, ¶ 7, 10 P.3d 1177, 1179 (2000) (extending Pool
to cases in which the mistrial motion was meritorious and should
have been granted). Moody filed no such motion in his first
trial, and the convictions arising out of that trial were
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reversed for deprivation of counsel, not prosecutorial
misconduct. Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d at 582.
Thus, Moody relies on the only case in which double jeopardy
protections have been applied in the absence of a motion for a
mistrial: State v. Minnitt, 203 Ariz. 431, 55 P.3d 774 (2002).
¶21 In Minnitt, we held that double jeopardy barred the
retrial of a defendant whose convictions were procured by false
and perjured testimony that the prosecutor placed before the
jury with full knowledge of its perjurious character and of the
likelihood that it would support a conviction. Id. at 439-40,
¶¶ 37-45, 55 P.3d at 782-83. Our holding in that case was
expressly conditioned on the prosecution’s concealment of the
misconduct; we reasoned that the misconduct in that case would
have warranted a mistrial had it been discovered. Id. at 439, ¶
35, 55 P.3d at 782 (holding that a mistrial is not a
prerequisite for a double jeopardy claim if a prosecutor
“engages in egregious conduct sufficient to require a mistrial
but manages to conceal his conduct until after trial”). Moody
does not claim that the misconduct of which he now complains —
offering false evidence before the grand jury and interfering
with his relationship with counsel — was concealed as was the
conduct in Minnitt. Additionally, while Minnitt could point to
places in the trial at which a mistrial would have been
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appropriate had the misconduct been overt, Moody has made no
such assertion regarding his first trial. In short, not only
did Moody fail to move for a mistrial, but he has failed to
demonstrate that a mistrial would ever have been appropriate.
Consequently, our holding in Minnitt offers Moody no refuge from
the requirement that a motion for a mistrial based on
prosecutorial misconduct be made during trial to preserve the
issue for appeal. This issue therefore is not properly before
us.
¶22 Minnitt also differs in one other important respect:
after the trial court denied his motion to dismiss on double
jeopardy grounds, Minnitt filed a special action seeking review
of that decision. Id. at 437, ¶ 24, 55 P.3d at 780. Our courts
have held that “a petition for special action is the appropriate
vehicle for a defendant to obtain judicial appellate review of
an interlocutory double jeopardy claim.” Nalbandian v. Superior
Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App. 1989). The
reasons underlying the preference for special action review of
denials of motions to dismiss based on double jeopardy are
obvious: Because the Double Jeopardy Clause guarantees the
right to be free from subsequent prosecution, the clause is
violated by the mere commencement of retrial. See Abney v.
United States, 431 U.S. 651, 660-61 (1977) (observing that
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appellate review of a double jeopardy claim before retrial may
prevent “personal strain, public embarrassment, and expense of a
criminal trial” caused by a retrial eventually overturned on
double jeopardy grounds).
¶23 This court has never reviewed a double jeopardy claim
based on prosecutorial misconduct if the defendant had not
previously moved for mistrial or sought relief by special action
from the trial court’s denial of his motion to dismiss on those
grounds. Moody provides no compelling reasons to diverge from
this practice.
2. Improvement of the State’s Case on Retrial
¶24 In addition to filing a pretrial motion to dismiss
based on double jeopardy grounds, the defense also sought to
preclude the State from offering any evidence on retrial that it
had not offered at the first trial, claiming that double
jeopardy principles prevented the State from improving its case
on retrial. At Moody’s second trial, the State presented
testimonial and physical evidence that it did not offer at the
first trial. Additionally, after relying solely on
premeditation at the first trial, the State added felony murder
theories as to both murders on retrial. Moody now argues that
the admission of this new evidence and the addition of the
felony murder theories in the second trial violated his
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constitutional protection against double jeopardy.
¶25 Moody relies on the United States Supreme Court’s
opinion in Burks v. United States, 437 U.S. 1, 11 (1978), for
the proposition that the use of new evidence in a retrial
violates both federal and state double jeopardy protections.
His reading of Burks is flawed. Burks states that “[t]he Double
Jeopardy Clause forbids a second trial for the purpose of
affording the prosecution another opportunity to supply evidence
which it failed to muster in the first proceeding.” Id. Giving
full effect to the phrase “for the purpose of” makes clear that
Burks applies only to cases reversed for insufficiency of the
evidence. See id. In such cases, the state cannot be allowed a
second opportunity to prove a defendant guilty. Id.
¶26 In contrast, the Supreme Court has held that in all
cases but those reversed on grounds of insufficient evidence,
the Double Jeopardy Clause “imposes no limitations whatever upon
the power to retry a defendant who has succeeded in getting his
first conviction set aside.” North Carolina v. Pearce, 395 U.S.
711, 719-20 (1969), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794 (1989). When a case is reversed for any
reason but insufficient evidence, “the original conviction has
been nullified and ‘the slate wiped clean.’” Bullington v.
Missouri, 451 U.S. 430, 442 (1981) (quoting Pearce, 395 U.S. at
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721). While neither case specifically addresses the
presentation of additional evidence, it follows that if the
slate is “wiped clean,” the state is not limited to using
evidence presented at the first trial. See Bullington, 451 U.S.
at 442; Pearce, 395 U.S. at 721; see also Tibbs v. Florida, 457
U.S. 31, 43 n.19 (1982) (recognizing that “[a] second chance for
the defendant . . . inevitably affords the prosecutor a second
try as well,” and that “new evidence or advance understanding of
the defendant’s trial strategy will make the State’s case even
stronger during a second trial than it was at the first”).
¶27 Moody’s case, on the other hand, was reversed for
deprivation of counsel. The sufficiency of the evidence of
guilt was not at issue. Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d
at 582. Consequently, we find no abuse of discretion in the
court’s refusal to restrict the State to evidence it offered in
the first trial.
¶28 Finally, Moody contends that the State violated double
jeopardy principles by adding a felony murder theory in the
second trial after relying solely on a premeditated murder
theory in the first trial. Moody relies on Thompson v.
Calderon, 120 F.3d 1045, 1055-59 (9th Cir. 1997) (en banc),
rev’d on other grounds, 523 U.S. 538 (1998), in claiming that
the use of fundamentally inconsistent theories at the two trials
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violates a defendant’s right to due process. Moody’s reliance
is misplaced, however, because Thompson involved a prosecutor
who proceeded on conflicting theories in separate trials of co-
defendants. See id. at 1055-57. That case turned on the
prosecutor’s actions of “manipulat[ing] evidence and witnesses,
argu[ing] inconsistent motives, and at [the second defendant’s
trial], essentially ridicul[ing] the theory he had used to
obtain a conviction and death sentence at Thompson’s trial.”
Id. at 1057. Moody is only one person, and the theories offered
are not necessarily inconsistent. Thus Thompson is inapposite.
¶29 Moody offers no other support for his argument that
the State could not lawfully proceed on a felony murder theory
in the second trial. Consequently, we conclude that the trial
judge did not abuse his discretion in denying Moody’s motions to
preclude the State from proceeding on felony murder theories at
the second trial.2
B. Failure to Dismiss the Indictment
¶30 Moody argues that the trial court erred in failing to
dismiss his indictment because it was based in part on evidence
that the State knew or should have known was at least partly
2
Moreover, any prejudice to Moody is minimal because he was
convicted of both premeditated murder and felony murder as to
each victim at his second trial.
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false. At the grand jury hearing, Tucson Police Detective Karen
Wright testified that after Carlos Logan was arrested for
driving Mary DeForest’s stolen Suburban, he told police officers
that he received the vehicle in a trade for cocaine with a man
named “Bob” who bragged about killing two people in Tucson.
Moody claims that this evidence was false and requests that we
reverse his convictions because false evidence was used to
procure his indictment.
¶31 Because Moody did not seek relief by special action
from the trial court’s denial of his motion, our scope of review
on direct appeal is limited. Arizona case law is clear that,
with one exception, all challenges to a grand jury’s findings of
probable cause must be made by motion followed by special action
before trial; they are not reviewable on appeal. State v.
Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995). That one
exception to the rule occurs “when a defendant has had to stand
trial on an indictment which the government knew was based
partially on perjured, material testimony.” State v. Gortarez,
141 Ariz. 254, 258, 686 P.2d 1224, 1228 (1984) (citing United
States v. Basurto, 497 F.2d 781 (9th Cir. 1974)). Thus, on
appeal we will review the indictment only to determine whether
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it was based on perjured, material testimony.3
¶32 In Basurto, the Ninth Circuit held that due process is
violated if the government bases an indictment “partially on
perjured testimony, when the perjured testimony is material, and
when jeopardy has not attached.” 497 F.2d at 785 (emphasis
added). Perjury is a “false sworn statement [a witness makes
regarding] a material issue, believing [the statement] to be
false.” A.R.S. § 13-2702(A)(1) (2001). To determine whether
Basurto is implicated, we review each of Detective Wright’s
statements to determine whether she committed perjury.
¶33 Detective Wright’s first statement to the grand jury
was that Carlos Logan told the arresting officer that he
received the Suburban in a trade for cocaine. Moody concedes
that Detective Wright accurately reported to the grand jury what
Logan told the arresting officer. Thus, while the information
3
Moody argues that this court should reverse his convictions
based on the prosecution’s knowing presentation of false
evidence. See United States v. Mudarris, 695 F.2d 1182 (9th
Cir. 1983) (holding that a defendant must prove “flagrant
misconduct” to prevail on a challenge to an indictment). We do
not address this claim, however, because Moody failed to raise
it before trial. With the exception of a Basurto violation, a
conviction precludes review of the finding of probable cause
made by a grand jury. State v. Verive, 128 Ariz. 570, 575, 627
P.2d 721, 726 (App. 1981) (noting that Basurto is the only
exception to the rule that a “defendant cannot, by appeal from a
conviction, obtain review of matters relevant only to the grand
jury proceedings”).
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that Carlos Logan gave to the arresting officer might have been
false, Detective Wright’s reporting to the grand jury of that
exchange between Logan and the arresting officer was not.
Consequently, it was not perjurious and does not fall within the
purview of Basurto, 497 F.2d at 784-86, and Gortarez, 141 Ariz.
at 258, 686 P.2d at 1228.
¶34 Regarding her second statement, Detective Wright
conceded at a pretrial hearing that Carlos Logan never told
either the arresting or interviewing officer that Moody
identified himself to Logan as “Bob.” Detective Wright also
admitted that the police reports did not specify Tucson as the
location of the murders Moody allegedly bragged about
committing. Thus, Detective Wright’s grand jury testimony was
false on these two points. However, our inquiry does not end
there. To constitute perjury, the false sworn statement must
relate to a material issue and the witness must know of its
falsity. A.R.S. § 13-2702(A)(1).
¶35 A statement is material if it “could have affected the
course or outcome of [a] proceeding.” A.R.S. § 13-2701(1)
(2001). The unchallenged evidence offered at the grand jury
proceeding was overwhelming: In addition to the “Bob” and
“Tucson” information, the grand jury also heard that Moody knew
Michelle Malone and may have purchased cocaine from her in the
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past; that a bullet found at the Malone murder scene came from a
rifle found at Moody’s residence; that after the murder, Moody
pawned two guns taken from the Malone residence; that Moody
lived next door to Patricia Magda and knew her; that Moody’s
wallet was found in Magda’s car; that Magda’s car was found at
DeForest’s Yuma, Arizona home; that Moody used Magda’s credit
card and bank card; and that Carlos Logan was arrested for
driving Mary DeForest’s stolen Suburban.
¶36 Because substantial evidence supports the finding of
probable cause, neither false statement could reasonably have
affected the grand jury’s determination of probable cause.
Thus, the requirement of materiality is not met as to the “Bob”
and “Tucson” evidence. As such, these two statements by
Detective Wright, although false in the sense that they do not
appear in the arresting officer’s reports, do not constitute
perjury. Consequently, Moody’s claim of a Basurto violation
fails.
¶37 In the alternative, Moody argues that his convictions
should be reversed because the prosecutor allowed Moody’s trials
to proceed knowing that the indictment was based in part on
false evidence that had been presented to the grand jury.
Citing Basurto, he asserts that the prosecutor should have
disclosed this evidence to the court and to him upon discovery.
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See 497 F.2d at 785-86 (“Whenever the prosecutor learns of any
perjury committed before the grand jury, he is under a duty to
immediately inform the court . . . .”). However, because no
perjury was committed, the prosecutor violated no duty under
Basurto. While a prosecutor must advise the court of false
evidence presented at trial, cf. Ariz. R. Sup. Ct. 42, ER
3.3(a)(3) and 3.8 cmt. 1, Moody has cited no authority
suggesting that presentation of false testimony to the grand
jury on non-material issues requires reversal after guilt has
been proved beyond a reasonable doubt at trial.
C. Denial of Fair Trial by Use of False Evidence
¶38 Moody asserts that the State denied him a fair trial
by providing mental health experts with the transcript of the
grand jury proceedings in which Detective Wright repeated the
false Carlos Logan evidence. Moody claims that providing this
evidence “tainted” the mental health experts’ opinions by
suggesting that Moody’s actions were a product of cocaine
addiction, not of mental illness. This evidence, he argues,
caused the mental health experts to believe that any mental
illness was therefore feigned.
¶39 Challenges to the admissibility of evidence can be
preserved only by a motion to preclude that evidence or by a
specific, contemporaneous objection to its admission. State v.
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Bolton, 182 Ariz. 290, 306 n.5, 896 P.2d 830, 846 n.5 (1995).
The motion or objection must state specific grounds in order to
preserve the issue for appeal. See State v. Briggs, 112 Ariz.
379, 382, 542 P.2d 804, 807 (1975).
¶40 Moody filed a motion to preclude Dr. Potts’ testimony,
but that motion was based on the late disclosure of Dr. Potts’
notes, not on an argument that Dr. Potts’ testimony was tainted
or reports were improper because of the doctor’s exposure to the
grand jury transcripts. Additionally, while Moody did move for
a mistrial based on the prosecutor’s use of the doctors’
“tainted” opinions to impeach Dr. Goldberg’s testimony, that
motion did not come until the day after the challenged actions,
and Moody made no contemporaneous objection to the prosecutor’s
use of Dr. Goldberg’s opinions during the trial. Consequently,
Moody has waived this claim as well. See State v. Harris, 157
Ariz. 35, 36, 754 P.2d 1139, 1140 (1988) (The purpose of the
contemporaneous objection requirement is to allow the court to
remedy objectionable action; a party cannot “permit an error to
go unrectified and then [later] claim the right to a mistrial or
a new trial.”). Thus, we review Moody’s challenges based on the
use of the “Carlos Logan evidence” only for fundamental error.
See Bolton, 182 Ariz. at 297, 658 P.2d at 837.
¶41 The Supreme Court has held that “a conviction obtained
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through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth
Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959). The
Ninth Circuit has removed the knowledge requirement from the
Napue equation: “[E]ven if the government unwittingly presents
false evidence, a defendant is entitled to a new trial ‘if there
is a reasonable probability that [without the evidence] the
result of the proceeding would have been different.’” United
States v. Young, 17 F.3d 1201, 1204 (9th Cir. 1994) (alteration
in original) (citation omitted). Moody urges this court to
adopt the Ninth Circuit’s analysis in Young. We need not decide
whether to adopt the Ninth Circuit’s rule, however, because even
were we to do so, Moody’s claim would fail.
¶42 Because Moody has waived this claim by failing to
interpose timely objections or file a motion in limine, he must
demonstrate that any error “contribut[ed] to or significantly
affect[ed] the verdict.” State v. King, 158 Ariz. 419, 424, 763
P.2d 239, 244 (1988). Moody makes no such argument. He argues
only that “the State rendered the opinions of [the mental health
experts] unreliable.” An independent review of the record
suggests, however, that the Carlos Logan evidence likely had
little or no impact on the doctors’ assessments or the jury’s
rejection of Moody’s insanity defense.
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¶43 Drs. Sullivan and Morenz were the only State experts
to testify at trial regarding Moody’s insanity defense. Dr.
Sullivan opined that Moody was faking mental illness by
malingering, but his testimony was based almost entirely on
various tests other experts had administered to Moody. He was
not cross-examined regarding the Carlos Logan evidence, and
while Dr. Sullivan did have access to the opinions of Drs.
Potts, LaWall, and Morenz — all of whom had been provided the
grand jury transcripts — Moody offers no citations to the record
showing that Dr. Sullivan ever had access to the grand jury
transcripts or relied upon portions of the other doctors’
reports that were based upon the grand jury transcripts. In
fact, before trial defense counsel argued that the only reason
the State asked Dr. Sullivan to testify was that he was not
exposed to the Carlos Logan information and the State wanted to
“sanitize” the trial by having an expert testify who had not
been exposed to that information and therefore was not subject
to impeachment on that score.
¶44 Dr. Morenz, on the other hand, did admit that he
considered the Carlos Logan information in arriving at his
opinion that Moody was malingering. He indicated on direct
examination that the Logan evidence was one of eleven factors
that he considered in reaching his conclusions. Defense counsel
- 23 -
then subjected Dr. Morenz to vigorous cross-examination that
exposed to the jury that some of the information in the grand
jury transcript was false and also exposed any possible
prejudice Dr. Morenz might have developed from reading the grand
jury transcript before meeting with Moody. This court has
observed that cross-examination can place an expert’s
conclusions in context and help the jury appropriately weigh the
testimony. State v. Schackart, 175 Ariz. 494, 502, 858 P.2d
639, 647 (1993) (“If the defense wishes to challenge the manner
in which a mental examination has been conducted, or an expert’s
conclusions, this can be done on cross-examination or during the
testimony of its own witness.”); see also State v. Mincey, 141
Ariz. 425, 441, 687 P.2d 1180, 1196 (1984).
¶45 In light of all of the above — that Dr. Morenz appears
to be the only expert at the second trial whose opinion was
influenced even in part by the Logan evidence, that the Logan
evidence supported only one of eleven bases for the doctor’s
conclusion that Moody was malingering, and that the doctor was
subject to cross-examination sufficient to expose to the jury
possible biases or flaws in his reasoning — Moody has not met
his burden of demonstrating that the false information
“contribut[ed] to or significantly affect[ed] the verdict.”
King, 158 Ariz. at 424, 763 P.2d at 244. We therefore conclude
- 24 -
that there was no fundamental error on this issue.
D. The Competency Findings
¶46 Moody claims that the trial court deprived him of due
process by failing to adjudicate him incompetent. He argues
that the trial judge erred by privately reviewing unidentified
portions of the record in determining that Moody was competent,
failing to conduct a competency hearing until just before
commencement of the trial, applying the wrong standard of
competency, and finding him competent despite insufficient
evidence to support such a finding. Consequently, Moody urges
that his Fifth, Sixth, and Fourteenth Amendment rights were
violated and that his convictions must be reversed.
1. Unilateral Examination of Evidence
¶47 Moody alleges that the trial judge’s review of the
record on competency constituted an impermissible competency
determination. However, the record contains no evidence that
defense counsel ever objected to the trial judge’s review of the
record on competency. Consequently, Moody has waived this claim
and we review only for fundamental error. See Bolton, 182 Ariz.
at 297, 896 P.2d at 837.
¶48 Moreover, Moody appears to misperceive the record.
Arizona Rule of Criminal Procedure 11.5(a) and State v. Blier,
113 Ariz. 501, 503, 557 P.2d 1058, 1060 (1976), require that any
- 25 -
competency hearing be open to the parties and guarantee the
right of the defendant to be present. A competency hearing is
required, however, only “[i]f the court determines that
reasonable grounds for an examination exist.” Ariz. R. Crim. P.
11.3(a); accord State v. Steelman, 120 Ariz. 301, 315, 585 P.2d
1213, 1227 (1978); State v. De Vote, 87 Ariz. 179, 182, 349 P.2d
189, 192 (1960); State v. Reid, 87 Ariz. 123, 126, 348 P.2d 731,
733 (1960). In determining whether reasonable grounds exist, a
judge may rely, among other factors, on his own observations of
the defendant’s demeanor and ability to answer questions. See
State v. Harding, 137 Ariz. 278, 286, 670 P.2d 383, 391 (1983)
(upholding a trial court’s determination that a defendant was
competent to waive his right to counsel based on psychiatric
reports and the trial court’s own observations). Further, if a
defendant has already been adjudicated competent, the court must
be permitted to rely on the record supporting that previous
adjudication. State v. Contreras, 112 Ariz. 358, 360-61, 542
P.2d 17, 19-20 (1975) (holding that before granting a second
competency hearing, “there must be some reasonable ground to
justify another hearing on facts not previously presented to the
trial court”).
¶49 We presume that a court is aware of the relevant law
and applies it correctly in arriving at its ruling. See State
- 26 -
v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996). With
this presumption in mind, Moody’s contention that the trial
judge’s pretrial review of the record on competency was an
unlawful private “competency hearing” must be rejected. Rather,
the record reflects that the trial judge’s actions were
consistent with his obligation under Rule 11.2 to seek
“reasonable grounds” before ordering a subsequent competency
evaluation. Each time the judge denied a defense motion for a
competency hearing, he indicated that the proffered evidence
gave him no reason to question Moody’s competency, which had
previously been determined. This interpretation is supported by
the fact that the trial judge never expressly “found” Moody
competent, as would be required after a full Rule 11.5
competency hearing. See Ariz. R. Crim. P. 11.5(a). When
finally presented with evidence that could possibly lead to
reasonable grounds to question Moody’s competency, the trial
judge scheduled a hearing to determine whether such grounds
existed.4 We find no error in the trial judge’s conduct, and
4
Dr. Goldberg prepared a report detailing the observations
he made after four days of meetings with and examinations of
Moody in February 2001. On March 1, 2001, the trial court
indicated that Dr. Goldberg’s report raised “concerns about
[Moody’s competence] that we should resolve before trial.”
Consequently, the court held a hearing on May 7, 2001, with
Moody, defense counsel, and the prosecutor present. Dr.
Goldberg, the only expert to testify at the hearing, explained
- 27 -
certainly none that constitutes “error of such dimensions that
it cannot be said it is possible for [the] defendant to have had
a fair trial.” State v. Smith, 114 Ariz. 415, 420, 561 P.2d
739, 744 (1977).5
2. Application of the Wrong Standard
¶50 Moody claims that the trial judge applied the wrong
standard in adjudicating him competent to stand trial. He notes
that the standard for competency under Dusky v. United States,
362 U.S. 402 (1960), is two-pronged: The court must be
satisfied (1) that the defendant has a “sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding” and (2) that he has a “rational as well
as factual understanding of the proceedings against him.” Moody
claims that the trial court applied only the second part of that
standard and ignored whether he had the ability to assist
counsel when it denied his motion for a Rule 11 hearing. Moody
his conclusion that Moody was “unreliable and inconsistent in
his abilities” to assist counsel, but that he was able to
complete the tests administered to him, his memory was average,
and he recognized the doctor each time he was visited. Dr.
Goldberg never opined that Moody was incompetent to stand trial
and the trial judge did not find him to be so.
5
Because we conclude that the hearing before trial was not a
“competency hearing” but rather a hearing to determine whether
there were reasonable grounds to require a competency hearing,
we find no error in the trial court waiting until the eve of
trial to conduct such a hearing.
- 28 -
bases his argument on the trial judge’s statement that “Moody
knows who his lawyer is, he knows who the judge is, he certainly
knows who Mr. White is, and he knows what he’s charged with.”
¶51 This argument suffers from the same misunderstanding
that doomed Moody’s previous claim, namely, the failure to
distinguish between a determination of whether reasonable
grounds exist to justify a competency hearing and findings
following an actual competency hearing. The cited statement was
made in response to Moody’s motion for a Rule 11 hearing. Thus,
it was clearly a statement of reasonable grounds, not an
adjudication of competency.
¶52 Because this statement did not resolve an adjudication
of competency, the incomplete rendition of the competency
standard does not by itself require reversal. Rather, the
critical inquiry is whether the trial court actually applied the
correct standard in determining that reasonable grounds did not
exist to call for a competency hearing. See, e.g., State v.
Borbon, 146 Ariz. 392, 395, 706 P.2d 718, 721 (1985).
“Reasonable grounds exist if there is sufficient evidence to
indicate that the defendant is not able to understand the nature
of the proceedings against him and to assist in his defense.”
State v. Salazar, 128 Ariz. 461, 462, 626 P.2d 1093, 1094
(1981).
- 29 -
¶53 We presume that a court is aware of the relevant law
and applies it correctly in arriving at its rulings. See
Medrano, 185 Ariz. at 196, 914 P.2d at 229. After reviewing a
report from Dr. Goldberg stating that Moody was “unable to
reliably and consistently assist his counsel at this time”
(emphasis in original), the trial judge “confess[ed] to having
some concerns at this point about the record on competence.”
Because Dr. Goldberg’s report was focused on Moody’s inability
to consistently assist counsel, the trial judge’s concerns about
competency after reading that report show that he was aware of
the relevant standard. In light of this record, and the
presumption that the trial judge is aware of the proper standard
on competency, we cannot agree with Moody’s argument that the
trial court’s lone statement in denying a motion for a Rule 11
hearing constitutes reversible error. See id. (rejecting a
defendant’s argument that the trial judge based his decision on
inappropriate considerations, finding that the remainder of the
record showed that the court was aware of and correctly applied
the relevant law).
3. Insufficient Evidence
¶54 Moody asserts that there was insufficient evidence to
support a finding of competency in this case. Specifically, he
claims that there was no reasonable evidence that he was capable
- 30 -
of assisting counsel. As a result, he argues, the case law
requires that his convictions be reversed. See Pate v.
Robinson, 383 U.S. 375 (1966); Dusky, 362 U.S. at 402-03; State
v. Bishop, 162 Ariz. 103, 781 P.2d 581 (1989).
¶55 We will upset a trial court’s determination of a
criminal defendant’s competency only for an “abuse of
discretion.” State v. Silvas, 91 Ariz. 386, 391, 372 P.2d 718,
722 (1962) (citing Reid, 87 Ariz. at 123, 348 P.2d at 731).
¶56 Arizona Rule of Criminal Procedure 11.1 states that
“[a] person shall not be tried, convicted, sentenced or punished
for a public offense . . . while, as a result of a mental
illness, defect, or disability, the person is unable to
understand the proceedings against him or her or to assist in
his or her own defense.” Rule 11.1 defines “mental illness,
defect or disability” as “a psychiatric or neurological disorder
that is evidenced by behavioral or emotional symptoms.”
However, the mere presence of a mental illness, defect, or
disability “is not grounds for finding a defendant incompetent
to stand trial.” Ariz. R. Crim. P. 11.1. Rather, the test for
competency is whether that mental illness or defect renders a
criminal defendant “unable to understand the proceedings against
him or her or to assist in his or her own defense.” Id.
¶57 Immediately before the second trial, the court held a
- 31 -
hearing at which Dr. Goldberg testified about Moody’s
difficulties in assisting counsel. Following that hearing, the
trial judge affirmed an earlier ruling that he had no grounds to
question Moody’s competency to stand trial. Moody asserts that
this was error.
¶58 There is no evidence before this court, however, that
the trial judge abused his discretion in finding Moody competent
to stand trial or, conversely, in failing to find Moody
incompetent to stand trial. In addition to the avowal of one of
Moody’s own attorneys that Moody was in fact competent and the
judge’s own observations, the trial judge also had before him
the opinions of Drs. Potts, LaWall, Geffen, Morenz, and
Sullivan, all of whom indicated that, despite his personality
disorders, Moody was likely malingering or faking mental illness
and was capable of assisting defense counsel. Dr. Goldberg was
the only expert who testified at the May 7, 2001 hearing, and
even he testified only that Moody was “unreliable and
inconsistent in his abilities” to assist defense counsel.
Inconsistency in assisting counsel may fall short of inability
to do so, the standard set forth in Rule 11.1. Moreover, the
trial judge might have found Dr. Goldberg’s testimony less
credible than that of the other doctors. Consequently, without
any further showing, we cannot conclude that the trial judge
- 32 -
abused his discretion in failing to find Moody incompetent to
stand trial. See Silvas, 91 Ariz. at 391, 372 P.2d at 722
(applying abuse of discretion standard).
E. Violation of Right to Counsel
¶59 Moody next argues that evidence obtained in violation
of his right to counsel was used to undermine his insanity
defense and influence the court’s determination of his mental
competence. Moody raises two claims arising from this alleged
violation of his rights: first, that the State violated his
right to counsel when it ignored his request for an attorney
before taking handwriting, fingerprint, blood, and hair samples;
and, second, that the State intruded into the attorney-client
relationship by making derogatory comments about counsel and
eavesdropping on a telephone conversation between Moody and his
attorney.
1. Physical Evidence
¶60 Moody contends that by refusing to honor his request
for counsel after he was served with the search warrant for
physical characteristics, the State violated his right to
counsel.
¶61 Shortly after Moody was extradited to Arizona, Tucson
Detective Karen Wright and Pima County Detective Michael Ying
served him with a search warrant seeking “physical
- 33 -
characteristics,” such as hair, blood, fingerprints, and
handwriting samples. Moody indicated that he had no attorney
and requested a public defender. After contacting the
prosecutor, however, the detectives denied his request. Moody
then complied with the warrant and gave samples of hair and
blood, was fingerprinted and photographed, and gave a
handwriting sample. Before his second trial, Moody moved to
suppress this evidence. The trial court denied that motion and
the State presented the evidence at trial.
¶62 As relief for the asserted violation of his rights,
Moody claims that the trial court should have suppressed this
evidence. We review a trial court’s ruling on a motion to
suppress evidence for an abuse of discretion if it involves a
discretionary issue, see State v. Prion, 203 Ariz. 157, 160, ¶
14, 52 P.3d 189, 192 (2002), but review constitutional issues
and purely legal issues de novo, see State v. Davolt, 207 Ariz.
191, 201, ¶ 21, 84 P.3d 456, 466 (2004) (analyzing Fourth and
Fifth Amendment issues).
¶63 Moody’s pretrial motion to suppress was based on
Arizona Rule of Criminal Procedure 15.2(a), which guarantees a
criminal defendant the right to have counsel present during the
taking of physical evidence. Moody does not rely on Rule 15.2
on appeal, however, and we therefore do not analyze that claim.
- 34 -
¶64 Instead, on appeal, Moody relies upon two additional
arguments raised but not ruled upon below: a Sixth Amendment
right to have counsel present and a general right to “access”
counsel derived from a line of driving under the influence
(“DUI”) cases based on Rule 6.1(a) of the Arizona Rules of
Criminal Procedure.
¶65 On the first issue, federal case law is clear that
Moody had no right to have counsel present at the taking of
physical evidence. The Sixth Amendment right to counsel extends
to “all critical stages of the criminal process.” Iowa v.
Tovar, ___ U.S. ___, ___, 124 S. Ct. 1379, 1383 (2004). The
taking of non-testimonial physical evidence, however, is not a
critical stage of the proceedings. See, e.g., Gilbert v.
California, 388 U.S. 263, 267 (1967) (holding that taking of a
handwriting sample is not a “critical stage” of the
proceedings); United States v. Jackson, 448 F.2d 963, 971 (9th
Cir. 1971) (holding that taking of fingerprints and hair samples
is not a “critical stage” of the proceedings); cf. United States
v. Wade, 388 U.S. 218, 227-28 (1967) (stating that analysis of
fingerprints, blood, and hair is not a critical stage because
“there is minimal risk that his counsel’s absence at such stages
might derogate from his right to a fair trial”). Consequently,
Moody had no right to have the evidence suppressed based on the
- 35 -
denial of his Sixth Amendment rights.
¶66 Second, Moody argues that by refusing his custodial
request to speak with counsel before the taking of the physical
evidence, the State interfered with his rule-based “right of
access to counsel” and that the evidence should therefore have
been suppressed. Rule 6.1(a) of the Arizona Rules of Criminal
Procedure provides a criminal defendant with the right to
“consult in private with an attorney . . . as soon as feasible
after [being] taken into custody.” This court has stated that,
regarding a suspect in custody, the state may deny the right to
consult with an attorney “only when the exercise of that right
will hinder an ongoing investigation.” Kunzler v. Pima County
Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987).
Although the State has not shown that counsel would have
hindered the investigation in this case, Moody had not been
assigned an attorney when the warrant was served. This court
has also stated that “[i]f the defendant is indigent and cannot
afford an attorney, the state need not wait until one is
appointed before continuing its detention procedures.” McNutt
v. Superior Court, 133 Ariz. 7, 10 n.2, 648 P.2d 122, 125 n.2
(1982). The taking of the fingerprint evidence would clearly
qualify under this exception for detention procedures.
¶67 Even if this court were to conclude that Moody’s right
- 36 -
to consult counsel under Rule 6.1(a) was violated as to the
other evidence, however, Moody fails to demonstrate that
suppression would be required. Federal jurisprudence is clear
that if evidence could have been obtained despite the violation
of right to counsel, there is no reason to keep that evidence
from the jury. Nix v. Williams, 467 U.S. 431, 447 (1984). For
suppression to be appropriate, there must be a nexus between the
violation and the evidence seized. Id. (stating that the
exclusionary rule requires the suppression of evidence gained as
a result of a government violation of a defendant’s rights).6 In
Moody’s case, the physical evidence was seized pursuant to a
valid warrant, and the samples would have been collected whether
or not Moody had an opportunity to speak with an attorney.
Consequently, the nexus between the alleged violation and the
evidence seized is absent; therefore, the policies underlying
the exclusionary rule would not require suppression of this
evidence.
¶68 Moody relies on a line of cases based on Rule 6.1 of
the Arizona Rules of Criminal Procedure for the proposition that
6
The federal exclusionary rule is not directly applicable
because we are dealing with a rule-based right to counsel rather
than a constitutional claim. However, we believe that the
defendant must demonstrate some connection between a Rule 6.1(a)
violation and the evidence seized before suppression is
required.
- 37 -
a defendant has the right to confer with counsel before taking a
test for physical evidence. Those cases, however, all involve
and are limited to the seizure of evidence of intoxication.
See, e.g., Kunzler, 154 Ariz. at 568-70, 744 P.2d at 669-71;
State v. Holland, 147 Ariz. 453, 711 P.2d 592 (1985); McNutt,
133 Ariz. at 7, 648 P.2d at 122; State v. Rosengren, 199 Ariz.
112, 14 P.3d 303 (App. 2000). Only in these cases has the
reviewing court either dismissed the charges against the
defendant or affirmed suppression of non-testimonial, physical
evidence as a sanction for the state’s violation of a
defendant’s rights under Rule 6.1(a).
¶69 These cases addressed violations of Rule 6.1 in the
context of impaired drivers. See Kunzler, 154 Ariz. at 568, 744
P.2d at 669 (DUI); Holland, 147 Ariz. at 454, 711 P.2d at 593
(DUI); McNutt, 133 Ariz. at 8, 648 P.2d at 123 (DUI); Rosengren,
199 Ariz. at 115, 14 P.3d at 306 (manslaughter). Such
investigations raise unique concerns that justify exemption from
the general rule:
In a D[U]I investigation, it is crucial for both the
state and the defendant to gather evidence relevant to
intoxication close in time to when the defendant
allegedly committed the crime. Otherwise, any alcohol
that may have been in the blood will have decomposed
before the blood can be tested.
McNutt, 133 Ariz. at 10 n.2, 648 P.2d at 125 n.2. As the court
suggested in McNutt, DUI investigations are unique because of
- 38 -
the evanescent nature of blood- and breath-alcohol evidence.
See id. Thus, these DUI cases establish the required nexus
between the violation and remedy: Denial of counsel may deprive
a defendant of an opportunity to obtain exculpatory evidence and
therefore justifies suppression of evidence. Id. at 10, 648
P.2d at 125.
¶70 Moody’s case differs in that the physical evidence
taken from him was not subject to disappearing or dissipating as
is breath- or blood-alcohol evidence. The officers made it
clear that the warrant sought only non-testimonial evidence and
that they would not be asking Moody any questions regarding the
murders while taking the evidence. Additionally, because the
evidence was seized pursuant to a valid warrant,7 it is unlikely
that an attorney would advise Moody to defy the warrant and
7
Moody claims that the search warrant that authorized the
taking of physical evidence was invalid because it was not
“completely recorded as required by statute.” We disagree.
Although the transcript of the recorded affidavit supporting the
warrant shows that the recording cut off the court’s order
authorizing the warrant, the tape contains the affiant
detective’s oath, her description of the facts of the case, the
substantial evidence linking Moody to the crime, Moody’s name,
and a complete list of physical evidence requested. Arizona’s
statute governing telephonic search warrants, A.R.S. § 13-
3914(C) (1989), requires only that the affiant’s statement of
facts that establish the grounds for the warrant be recorded.
Moody cites no case law suggesting that this is insufficient
under § 13-3914(C) and we find no defect in the recording of the
warrant.
- 39 -
refuse to submit to the search.8 For those reasons, we agree
with those courts that have held that the necessity for counsel
was minimized. E.g., Nix, 467 U.S. at 446-47. Consequently,
even if Rule 6.1(a) requires that a defendant be afforded the
opportunity to contact counsel before administration of a search
warrant for physical characteristics, Moody has failed to
demonstrate why suppression would be appropriate in this case.
He therefore has not shown that the trial court abused its
discretion in denying his motion to suppress the physical
evidence.
2. Intrusion into the Attorney-Client Relationship
¶71 Moody claims that the State interfered in his
relationship with counsel in two ways during a two-month span at
the beginning of Moody’s detainment in early 1994.
¶72 In February of 1994, a Pima County corrections officer
8
Moody cites Rosengren, 199 Ariz. at 121, ¶ 30, 14 P.3d at
312, arguing that “the State cannot bypass the requirement of
counsel by using a warrant.” Moody accurately cites Rosengren’s
holding. Moreover, his reliance on it is misplaced. In
Rosengren, the defendant requested an attorney twice before
police officers sought a search warrant. Id. at 115, ¶¶ 4, 5,
14 P.3d at 306. Consequently, it was clear that the officers in
that case sought a warrant to prevent the defendant from
exercising his right to contact counsel. In the current case,
Moody did not request counsel until he was confronted with the
warrant. Thus, while Rosengren’s rights to counsel were clearly
subverted by the state’s decision to obtain a warrant, no such
claim can be made here.
- 40 -
made derogatory statements about Moody’s first attorney, Daniel
Grills. When Grills brought this to the court’s attention,
Judge Hantman ordered the Sheriff’s Department to avoid contact
with Moody concerning legal matters. The State contends that
this error was remedied by our decision in State v. Moody, 192
Ariz. 505, 968 P.2d 578 (1998). We agree. Moody has failed to
explain how, if at all, any prejudice stemming from this
incident survived the reversal and affected him on retrial.
Consequently, we address only Moody’s second claim.
¶73 Two months later, on April 4, 1994, Pima County
Corrections Officer Alan Chaffey, who had previously been
instructed by his supervisor to “keep an eye on Mr. Moody” and
report any observations he found interesting, overheard Moody
make a phone call to his attorney in which Moody discussed his
idea for a legal defense that he had “read about . . . in two
books.” Officer Chaffey then searched Moody’s cell and
discovered two books about alien abduction: Communion and The
Breakthrough, Communion Continues.
¶74 Before retrial, Moody moved to dismiss the charges
against him, alleging that the State intentionally interfered in
the attorney-client relationship. The trial court denied that
motion without elaboration. Contending that the prosecutor took
deliberate actions to “penetrate the attorney-client privilege
- 41 -
and destroy counsel’s relationship with his client,” Moody now
claims that the trial court erred in denying the motion and asks
us to vacate his convictions and dismiss the charges against
him.
¶75 We review a trial court’s ruling on a motion to
dismiss for an abuse of discretion. State v. Hansen, 156 Ariz.
291, 294, 751 P.2d 951, 954 (1988) (citing State v. Pickett, 121
Ariz. 142, 145, 589 P.2d 16, 19 (1978)).
¶76 The Sixth Amendment to the United States Constitution
and Article 2, Section 24 of the Arizona Constitution guarantee
a criminal defendant the right to assistance of counsel. This
right includes “protection against improper intrusions by the
prosecutor or other government agents into the confidential
relationship between a defendant and his attorney.” State v.
Warner, 150 Ariz. 123, 127, 722 P.2d 291, 295 (1986). We
recognize that “effective representation is not possible without
the right of a defendant to confer in private with . . .
counsel.” Holland, 147 Ariz. at 455, 711 P.2d at 594; see also
Ariz. R. Crim. P. 6.1(a).
¶77 The defendant bears the initial burden to establish an
interference in the attorney-client relationship. Once he does
so, the state bears the burden of demonstrating that the
defendant was not prejudiced by the interference and must
- 42 -
convince the court beyond a reasonable doubt that the defendant
received a fair trial. Warner, 150 Ariz. at 128, 722 P.2d at
296.
¶78 Addressing the first part of this equation, Moody
claims that the correction officer’s actions in eavesdropping on
his conversation interfered with his relationship with counsel.
The relevant inquiry, however, is whether the state interfered
with “the confidential relationship between a defendant and his
attorney.” Id. at 127, 722 P.2d at 295 (emphasis added). The
State argues that Moody waived his interest in the
confidentiality of the telephone call and that the corrections
officer did not interfere in a confidential attorney-client
relationship. The evidence showed that Officer Chaffey was
sitting approximately fifteen feet from Moody during the
conversation; that Moody knew the officer was there but made no
attempt to protect the contents of his conversation by turning
his back, speaking softly, or covering his mouth; and that
Officer Chaffey did not have to listen closely or eavesdrop to
hear what Moody was saying.
¶79 Although not binding on our resolution of
confidentiality requirements, our case law on evidentiary
privilege is instructive. The cases suggest that one who knows
that his conversation may be overheard and makes no effort to
- 43 -
safeguard against interception may waive a claim of
confidentiality. In De Leon v. Territory, 9 Ariz. 161, 168-69,
80 P. 348, 351 (1905), Arizona’s landmark case on privilege,
this court held that the defendant waived his spousal
communications privilege when he wrote a letter to his wife from
jail knowing that the jailers would open the letter. Similarly,
in State v. Summerlin, 138 Ariz. 426, 434-35, 675 P.2d 686, 694-
95 (1983), we held that the spousal communication privilege was
waived because the defendant spoke to his wife knowing that
police officers could hear him and were listening to him. And
the court of appeals recently held that “[t]he presence of a
third person will usually defeat the [attorney-client] privilege
on the ground that confidentiality could not be intended with
respect to communications that the speaker knowingly allowed to
be overheard by others foreign to the confidential
relationship.” State v. Sucharew, 205 Ariz. 16, 22, ¶ 11, 66
P.3d 59, 65 (App. 2003) (quoting Morris K. Udall, et al., Law of
Evidence § 71, at 128 (3d. ed. 1991)) (alteration in original).
While some factual distinctions exist, this case law suggests
that Moody knowingly waived his privacy interest in the content
of the conversation.
¶80 Although eavesdropping on privileged calls and opening
privileged materials intrude into the attorney-client
- 44 -
relationship, see State v. Pecard, 196 Ariz. 371, 376-78, ¶¶ 26-
37, 998 P.2d 453, 458-60 (App. 1999) (finding an intrusion into
the attorney-client relationship where defendant’s telephone
calls with his attorney were recorded, his privileged mail to
and from his attorney was opened, and privileged work product
documents were taken from his cell), the facts in Moody’s case
are not nearly so extreme. There was no surreptitious
eavesdropping, recording, or reporting of communications or
affect that were not readily apparent to anyone who had been in
the vicinity.
¶81 Although the trial court’s denial of Moody’s motion to
dismiss included no specific findings, we presume that the court
was aware of the relevant law and applied it correctly in
arriving at its ruling, see State v. Medrano, 185 Ariz. 192,
196, 914 P.2d 225, 229 (1996), and we can affirm the ruling on
any basis supported by the record. See State v. Robinson, 153
Ariz. 191, 199, 735 P.2d 801, 809 (1987) (reviewing evidentiary
rulings). Based on the evidence before us, we find no abuse of
discretion. The trial judge may have found the corrections
officer’s testimony credible, a determination to which we would
defer. See State v. Hughes, 13 Ariz. App. 391, 393, 477 P.2d
265, 266-67 (1970) (deferring to the trial court’s credibility
evaluation). On the basis of that testimony, the trial court
- 45 -
may reasonably have concluded that Moody waived the
confidentiality of the communication with his attorney by making
no effort to safeguard the content of his conversation. Thus,
we cannot conclude that the trial court abused its discretion in
denying this motion to dismiss.
¶82 Because we conclude there was no intrusion into the
attorney-client relationship, we need not address whether Moody
was prejudiced by any intrusion. Similarly, we need not address
how, if at all, Moody was prejudiced by the prosecution
forwarding Officer Chaffey’s report to the mental health
experts. Chaffey discovered the books during a routine
investigation of Moody’s cell. The overheard telephone
conversation is necessary to give context to the books
sufficient to raise a claim that the discovery inculpated the
attorney-client relationship. Consequently, our conclusion that
the trial court did not err in finding that Moody waived any
confidentiality interest resolves this issue as well.
F. Death Qualification of the Jury
¶83 Moody argues that he was denied an impartial and
representative jury by the trial court’s decision to “death
qualify” the jurors — that is, to ascertain whether they had any
feelings about the death penalty that would have interfered with
their ability to follow the law. Moody alleges two errors, one
- 46 -
general and one specific. First, he argues that “death
qualification” is unconstitutional and should be disallowed.
Second, he alleges that the trial judge’s removal of four
individual panel members for cause was an abuse of discretion
and violated his right to a representative jury.
¶84 On the first issue, Moody concedes that this court has
consistently upheld death qualification. E.g., State v.
Montaño, 204 Ariz. 413, 422, ¶ 36, 65 P.3d 61, 70 (2003) (citing
State v. Hoskins, 199 Ariz. 127, 141-42, ¶ 50, 14 P.3d 997,
1011-12 (2000)); see also State v. Jones, 197 Ariz. 290, 302, ¶
24, 4 P.3d 345, 357 (2000); State v. Kayer, 194 Ariz. 423, 431,
¶ 22, 984 P.2d 31, 39 (1999). He asks us to reconsider these
holdings. While duly noted, Moody’s arguments are mere reprises
of arguments that this court has previously rejected. See
Hoskins, 199 Ariz. at 141-42, ¶ 49, 14 P.3d at 1011-12. In
light of the amendment to A.R.S. § 13-703.01 (Supp. 2003) that
now permits jury sentencing, we decline to revisit our earlier
holdings on the constitutionality of death qualification of
juries.
¶85 Moody’s second claim challenges the removal of four
jurors based on their personal opposition to the death penalty.
Moody did not contemporaneously object to the removal for cause
of any of these jurors. While defense counsel did lodge a
- 47 -
general objection to death qualification before passing the
panel, we have held that “a general objection to death penalty
questioning does not serve as an objection to preserve on direct
appeal the issue of whether individual jurors were improperly
dismissed for cause because of their death penalty views.”
Montaño, 204 Ariz. at 422, ¶ 37, 65 P.3d at 70 (quoting Kayer,
194 Ariz. at 432, ¶ 24, 984 P.2d at 40). Because defense
counsel failed to object to the individual dismissal of the
jurors in question, we review only for fundamental error. See
id.
¶86 Fundamental error is “error of such dimensions that it
cannot be said it is possible for a defendant to have had a fair
trial.” State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744
(1977). There was no such error here.
¶87 In this case, the trial judge asked the jury pool
whether any member “would not be able to serve as a fair and
impartial juror” in light of his or her view on the death
penalty. Of the eight individuals who indicated that their
personal views might affect their ability to be fair and
impartial, four were removed after extensive questioning and
several unsuccessful attempts at rehabilitation, and one juror
was removed immediately upon indicating his fervent support of
capital punishment. The two potential jurors who indicated that
- 48 -
they could set aside their feelings and be impartial remained on
the panel, but were not ultimately selected to be on the jury.
The final juror who had strong personal feelings about the death
penalty was eventually excused because she had been exposed to
news accounts of the murders and had a professional association
with one of Moody’s defense lawyers.
¶88 The Supreme Court has held that potential jurors may
not be removed for cause “simply because they voiced general
objections to the death penalty.” Witherspoon v. Illinois, 391
U.S. 510, 522-23 (1968). However, the trial judge is permitted
to question jurors regarding their opinions on the death
penalty, see, e.g., State v. Anderson, 197 Ariz. 314, 318-19, ¶¶
7-10, 4 P.3d 369, 373-74 (2000), and, after attempting
rehabilitation, may remove a potential juror from the jury pool
if the juror’s personal views may “prevent or substantially
impair the performance of [the juror’s] duties.” Wainwright v.
Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S.
38, 45 (1980)). Deference is to be accorded to the trial judge
and a juror’s bias need not be proved with unmistakable clarity.
Id. at 424-25.
¶89 In Montaño, we upheld the for-cause dismissal of a
juror whose equivocations were much less substantial than any
juror excused for cause in this case. See 204 Ariz. at 422-23,
- 49 -
¶¶ 38-39, 65 P.3d at 70-71. Moody urges us to apply a much
stricter standard, arguing for application of the standard we
applied in Anderson, 197 Ariz. at 320, ¶ 11, 4 P.3d at 375
(suggesting that a judge may remove a juror only if the juror
“unequivocally express[es] an inability to follow the law and
the judge’s instructions”). As the State notes, however,
Anderson involved a unique situation in which the trial court
administered a written jury questionnaire and refused to allow
follow-up questioning by counsel. Id. at 319, ¶ 10, 4 P.3d at
374. We held, in that situation, that a judge may base
dismissal of jurors solely on how they answer their jury
questionnaires only if their answers reveal an unequivocal
expression of an inability to follow the law. Id. This case
differs from Anderson because any equivocation expressed by the
challenged jurors in this case appears to be the very product of
extensive questioning, not a result of its absence.
¶90 Reviewing the record for fundamental error, we agree
with the State that “the trial judge excused only the ‘extreme’
members of the panel on both sides of the death penalty
question.” There was no error here, and certainly none “of such
dimensions that it cannot be said it is possible for a defendant
to have had a fair trial.” Smith, 114 Ariz. at 420, 561 P.2d at
744. Consequently, we fail to find that the trial court
- 50 -
committed fundamental error by excusing these four potential
jurors because their views on the death penalty might have
affected their ability to serve as fair and impartial jurors.
G. Failure to Ask Proposed Voir Dire Questions
¶91 Moody argues that, despite assurances that the parties
would be permitted to use jury questionnaires, the trial court
first refused to use his questionnaire and then failed to
adequately question prospective jurors on the questions covered
in the proposed questionnaire during the jury selection process.
He claims these errors deprived him of his rights to due process
and a fair and impartial jury.
¶92 We address each claim individually.
1. Failure to Administer Questionnaire
¶93 Moody claims that the trial court erred both by
refusing to administer his proposed jury questionnaire and by
giving a factually incorrect reason for doing so. On the first
point, we note that there is no right to use jury questionnaires
in Arizona. Rule 18.5(d) of Arizona’s Rules of Criminal
Procedure commands the court to conduct a “thorough oral
examination of prospective jurors” and, upon request of a party,
requires the court to “permit that party a reasonable time to
conduct a further oral examination of the prospective jurors.”
Nothing in the language of Rule 18.5, however, creates a right
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to use jury questionnaires. See State v. Davolt, 207 Ariz. 191,
207, ¶ 52, 84 P.3d 456, 472 (2004); State v. Cañez, 202 Ariz.
133, 148, ¶ 37, 42 P.3d 564, 579 (2002). Rather, whether to
permit the use of jury questionnaires is a decision committed to
the sound discretion of the court. Cañez, 202 Ariz. at 148, ¶
37, 42 P.3d at 579. “We will not disturb the trial court’s
selection of the jury in the absence of a showing that a jury of
fair and impartial jurors was not chosen.” Walden, 183 Ariz. at
607, 905 P.2d at 986 (quoting State v. Tison, 129 Ariz. 546,
551, 633 P.2d 355, 360 (1981)). Moody fails to show either an
abuse of discretion or that the jury selected was not fair and
impartial.
¶94 Moody’s second argument regarding the questionnaire is
that “the trial court’s stated reason for rejecting the written
questions was factually incorrect, i.e., that it never intended
to give a written questionnaire.” He cites State v. Chapple,
135 Ariz. 281, 297, 660 P.2d 1208, 1224 (1983), in support of
his arguments. In Chapple, however, we concluded not that the
trial judge gave a “factually incorrect reason” for precluding
an expert witness, but rather that he came to an incorrect legal
conclusion. Id. Chapple therefore provides no support for
Moody’s position, and Moody makes no other legal argument in
support of his contention. Moreover, Moody does not show where
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in the record the trial judge stated that he would give a
questionnaire. In sum, Moody has not established any grounds
for reversal on this point.
2. Failure to Adequately Question Prospective Jurors
¶95 Moody also argues that the trial judge’s refusal to
use the questionnaire resulted in the failure to ask several
questions necessary to ensure a fair and impartial jury. To
succeed on a claim that the court failed to adequately question
the jury panel, Moody must demonstrate not only that the voir
dire examination was inadequate, but also that, as a result of
the inadequate questioning, the jury selected was not fair,
unbiased, and impartial. See Walden, 183 Ariz. at 607, 905 P.2d
at 986. He does not meet this burden.
¶96 Moody’s brief does set forth several groups of
questions from the questionnaire that he asserts were not
specifically explored on voir dire: jurors’ experience with
dissociative identity disorder, the effects of cocaine, and the
credibility of police officers. He concedes that the trial
court asked general questions covering each of these areas with
much broader strokes — asking, for example, about jurors’
experiences with mental illness, drugs and alcohol, and law
enforcement. He urges, however, that the questions did not go
far enough.
- 53 -
¶97 Moody’s claims are nearly identical to the ones this
court rejected in Walden, 183 Ariz. at 608, 905 P.2d at 987. In
that case, a defendant whose jury questionnaire was not used at
trial claimed that “although many of his questions were
adequately covered by the court, other relevant and appropriate
ones were not.” Id. We found no error in Walden’s case because
he made “no attempt to show how the absence of any particular
question or subject of questioning resulted in a biased jury or
rendered his trial fundamentally unfair.” Id. Rather, he made
“only the general claim that each question was necessary to
uncover juror bias.” Id. The same is true here. Moody does
not show how the absence of any of the questions resulted in a
jury that was not fair and impartial.
¶98 Ultimately, even had Moody provided a more specific
argument on this point, the trial judge’s invitation to counsel
to ask follow-up questions mitigates any deficiency in the
court’s questioning. This court has consistently upheld trial
courts’ refusals to use jury questionnaires when counsel were
provided an opportunity to voir dire potential jurors. See,
e.g., Davolt, 207 Ariz. at 207, ¶ 52, 84 P.3d at 472; Cañez, 202
Ariz. at 148, ¶ 37, 42 P.3d at 579. It also follows that a
defendant who believes a trial court’s voir dire to be deficient
cannot sit on his rights and bypass the opportunity to cure the
- 54 -
error by questioning jurors about those subjects that he feels
were inadequately addressed when offered the opportunity to do
so.
¶99 In this case the trial judge invited counsel to voir
dire the panel, and he allowed counsel to ask follow-up
questions to individual jurors throughout the selection process.
Moody has not alleged that his opportunity for follow-up
questioning was limited or restricted, and because he could have
asked the questions himself that he now claims should have been
asked, we find no error or abuse of discretion in the voir dire
process.
¶100 Based on the record before us, we find no abuse of
discretion in the trial court’s actions, and Moody fails to
demonstrate how any of the errors he alleges served to deprive
him of a fair, impartial, and unbiased jury.
H. Improper Expert Testimony
¶101 Moody contends that the State’s mental health expert,
Dr. Morenz, invaded the province of the jury. Moody alleges
error in two different statements: that Moody committed these
murders because of his cocaine use and that malingering is “a
medical term for lying.”9
9
In the “fact” section of his brief, Moody also mentioned
Dr. Morenz’s testimony about Moody’s motive for turning himself
- 55 -
¶102 As an initial matter, we note that Moody did not
object at trial to either statement by Dr. Morenz. This court
has long held that an appellant may not challenge on appeal
testimony to which there has been no objection, unless the error
is fundamental. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d
1214, 1217 (1981). We therefore review each statement only for
fundamental error. See State v. Bolton, 182 Ariz. 290, 297, 896
P.2d 830, 837 (1995); see also State v. King, 158 Ariz. 419,
424, 763 P.2d 239, 244 (1988) (defining and reviewing for
fundamental error).
1. Opinion Testimony on Motive
¶103 Moody first alleges error in Dr. Morenz’s testimony
about Moody’s possible motive for the murders. At trial, Dr.
Morenz testified that, in his opinion, it was “very likely that
the motivation [for the murders] was money and cocaine.” Moody
alleges that this was inappropriate opinion testimony permitted
by neither the Arizona Rules of Evidence nor our case law on
expert testimony.
in to police, but he made no argument regarding it. Merely
mentioning an argument is not enough: “In Arizona, opening
briefs must present significant arguments, supported by
authority, setting forth an appellant’s position on the issues
raised. Failure to argue a claim usually constitutes
abandonment and waiver of that claim.” State v. Carver, 160
Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). Consequently, we do
not address the propriety of this testimony.
- 56 -
¶104 Arizona Rule of Evidence 702 provides that an expert
witness may testify on any subject if the witness’s “specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue.” This court has
interpreted Rule 702 to preclude expert testimony, however, if
“the subject of inquiry is one of such common knowledge that
people of ordinary education could reach a conclusion as
intelligently as the witness.” State v. Poland, 144 Ariz. 388,
398, 698 P.2d 183, 193 (1985) (quoting State v. Owens, 112 Ariz.
223, 227, 540 P.2d 695, 699 (1975)).
¶105 Moody alleges that Dr. Morenz exceeded the permissible
scope of Rule 702 by testifying that Moody’s cocaine use was a
motive for the murders. Moody contends that although Dr. Morenz
could express an opinion on whether Moody was suffering from
mental illness, “he was not permitted to offer an opinion that
Robert killed Michelle Malone and Patricia Magda because of his
cocaine use.” Moody argues that because there was no evidence
that he had used cocaine at the time of the murders, and
therefore no foundation for the opinion, Arizona case law
renders Dr. Morenz’s testimony improper. See State v. Miles,
186 Ariz. 10, 18, 918 P.2d 1028, 1036 (1996) (upholding trial
court’s decision to preclude defense expert’s testimony on
cocaine intoxication where the expert “had no basis upon which
- 57 -
to render an opinion about the effects of crack cocaine use at
the time of the murder”); State v. Gretzler, 126 Ariz. 60, 85,
612 P.2d 1023, 1048 (1980) (stating that “[t]estimony concerning
intoxication should be limited to the time of the crime for
which the defendant is being tried”), modified on other grounds
by State v. McDaniel, 136 Ariz. 188, 194, 655 P.2d 70, 76
(1983).
¶106 A review of the context of that testimony, however,
undermines Moody’s claim. Dr. Morenz was called on rebuttal,
shortly after the jury heard evidence from the defense experts
that Moody was in a psychotic, dissociated state when he
committed the killings. Dr. Morenz testified that he had eleven
reasons for concluding that Moody was not insane, but rather was
“malingering.” One of these reasons was that the murders did
not fit the profile of “psychotic killings.” Dr. Morenz
testified that psychotic killings rarely have “any rational
motive.” He then told the jury that one indication that Moody
was malingering was that, unlike “psychotic killers,” Moody
actually did have a likely motive — namely, that his substantial
cocaine addiction had rendered him broke and desperate.
¶107 What evidence is permissible on rebuttal is left to
the trial court’s discretion. See State v. Young, 116 Ariz.
385, 387, 569 P.2d 815, 817 (1977). The rebuttal evidence
- 58 -
provided by Dr. Morenz in this case responded to the issues
covered by the defense and is of the type on which expert
testimony is generally allowed: the mental health and thought
processes of a defendant who alleges insanity or mental illness
or defect. Dr. Morenz testified to motive in support of his
opinion that Moody’s actions contradicted a diagnosis of
psychosis. We find no abuse of the court’s discretion in
permitting this testimony, and certainly no fundamental error.
2. Characterization of “Malingerer” as “Liar”
¶108 Moody also alleges that Dr. Morenz “exceeded the scope
of permissible expert testimony by offering an opinion on
[Moody’s] credibility by characterizing malingering as a medical
term for lying.” The defense takes Dr. Morenz’s statement out
of context.
¶109 On direct-examination, Dr. Morenz defined a
“malingerer” as “someone who makes up their [sic] symptoms for a
particular purpose.” He further stated that “[i]n Mr. Moody’s
case, [that purpose is] to escape criminal prosecution or gain
some kind of leniency from the court.” On cross-examination,
defense counsel asked Dr. Morenz whether Moody had been “called
a malingerer, which is a medical term for liar.” Dr. Morenz
responded, “yes.” Moody claims that by that answer, “Morenz
improperly expressed his professional opinion that [Moody] is a
- 59 -
liar.”
¶110 We find no merit in Moody’s argument for two reasons.
First, the question posed by defense counsel is a compound
question. For that reason, it is unclear whether Dr. Morenz was
answering “yes” to the question whether Moody had been called a
malingerer, or whether he was affirming that “malingerer” is a
“medical term for a liar.”
¶111 Second, even if we assume that Dr. Morenz intended to
testify that “malingerer . . . is a medical term for liar,” that
definition was offered as a leading question by defense counsel
on cross-examination. This court has long held that “a
defendant who invited error at trial may not then assign the
same as error on appeal.” See, e.g., State v. Endreson, 109
Ariz. 117, 122-23, 506 P.2d 248, 253-54 (1973). We can envision
few situations in which a defendant can be said to “invite” an
error more condemningly than by asking a leading question that
he assigns to the witness on appeal. For that reason, while we
find no error here because of the compound nature of the
question and the ambiguous response, even if Dr. Morenz’s
statement were erroneous, it was invited by the defense and for
that reason would not provide a basis for reversal.
I. Failure to Preclude Dr. Sullivan from Testifying
¶112 Moody argues that the trial court erred by failing to
- 60 -
preclude one of the State’s mental health experts, Dr. Sullivan,
from testifying because of the late disclosure of his notes and
defense counsel’s inability to re-interview him.
¶113 Before trial, Moody allowed Dr. Sullivan to interview
him on the condition that the doctor not take notes.
Immediately after concluding the interview, Dr. Sullivan
dictated a report. Dr. Sullivan’s report was disclosed to
defense counsel two weeks before trial so that counsel could
prepare to interview Dr. Sullivan. Defense counsel interviewed
Dr. Sullivan once before trial and again on May 19, a week
before Dr. Sullivan was scheduled to testify. At the May 19
interview, defense counsel learned that Dr. Sullivan had
compiled forty pages of handwritten notes following the first
interview, in preparation for trial. These notes were disclosed
to the defense two days after that interview, but defense
counsel did not have an opportunity to re-interview Dr. Sullivan
after their disclosure and therefore moved to preclude Dr.
Sullivan from testifying. Moody now claims that denial of that
motion was error and warrants reversal of his convictions.
¶114 Whether to impose a sanction for late disclosure and
which sanction to impose are discretionary decisions left to the
trial court; we will not disturb those decisions absent an abuse
of discretion. State v. Tucker, 157 Ariz. 433, 439, 759 P.2d
- 61 -
579, 585 (1988). Preclusion is “a sanction of last resort,”
State v. Talmadge, 196 Ariz. 436, 440, 999 P.2d 192, 196 (2000),
to be imposed only if “other less stringent sanctions are not
applicable.” State v. Smith, 123 Ariz. 243, 252, 599 P.2d 199,
208 (1979).
¶115 Moody cites only one case suggesting that a failure to
disclose evidence relating to a witness might require preclusion
of that witness. In State v. Krone, 182 Ariz. 319, 321-23, 897
P.2d 621, 623-25 (1995), we held that a trial court erroneously
failed to preclude a witness’s key exhibit, “the centerpiece of
the star witness’s testimony,” which was not disclosed to the
defense until the day before trial. Krone turned upon a bite-
mark pattern on the victim; the exhibit that the defense sought
to preclude was a videotape of the bite-mark analysis. Id. at
320-22, 897 P.2d at 622-24. Our determination that the video
should have been precluded was based on the importance of that
evidence: We noted that without the bite-mark evidence, “there
likely would have been no jury submissible case against Krone.”
Id. at 322, 897 P.2d at 624.
¶116 Moody has not demonstrated that similar circumstances
exist in this case. Moody’s brief contains no suggestion of
what was in the doctor’s notes, no explanation of how, if at
all, the late disclosure prejudiced him, and no indication
- 62 -
whether the notes revealed information that differed from that
explored during his attorney’s two interviews of Dr. Sullivan.
Consequently, we cannot say that the trial court abused its
discretion in failing to preclude Dr. Sullivan’s testimony.
J. Evidentiary Rulings
¶117 Moody argues that the trial court abused its
discretion in admitting three pieces of evidence: (1) pawn
slips showing that Moody sold various items between January 11,
1993 and October 16, 1993; (2) Detective Wright’s personal
opinion on Moody’s guilt; and (3) blood, DNA, handwriting, and
ballistic evidence that was never released to Moody for
independent testing.
1. The Pawn Slips
¶118 On May 11, 2004, the State called James Ganem, the
owner of the Cash Box Jewelry and Pawn Company, to introduce two
pawn slips for items pawned at his store: a Winchester 12-guage
shotgun and a Ruger .22 caliber pistol. He verified that
someone who had actual knowledge of the information recorded on
the slips filled them out during the regular course of business.
See Ariz. R. Evid. 803(6) (excluding certain business records
from the hearsay rule). They were admitted without objection.
Also admitted were the accompanying police reports, which Ganem
testified were required by law to be completed after each
- 63 -
transaction.
¶119 Next, the State introduced police reports from a
different pawn shop showing that Moody pawned jewelry, a camera,
and a .357 caliber revolver on January 11, July 2, and October
16, 1993. Ganem testified that he did not own that shop, but he
knew of it and recognized the reports as pawn records. When the
defense learned that the pawn slips from the second shop were to
be offered, defense counsel objected and requested a mistrial on
the grounds that he had no notice that the pawn slips were going
to be admitted into evidence because the State had not noticed a
custodian of records for the documents from the second pawn
shop. The court denied the mistrial motion and overruled the
objection. Moody contends that this was error.
¶120 On appeal, Moody claims that the police reports from
the second pawn shop contained inadmissible hearsay. We note,
however, that Moody never objected to their admission on these
grounds. The sole objection made at trial was that no custodian
of records had been listed and that Moody consequently had no
notice that the documents would be introduced. Defense counsel
did not object on grounds of lack of foundation or hearsay.
“Absent fundamental error, if evidence is objected to on one
ground in the trial court and admitted over that objection,
other grounds raised for the first time on appeal are waived.”
- 64 -
State v. Neal, 143 Ariz. 93, 100, 692 P.2d 272, 279 (1984).
“Fundamental error is error of such dimensions that it cannot be
said it is possible for a defendant to have had a fair trial.”
State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977).
¶121 Moody claims that the erroneous admission of this
hearsay evidence denied him a fair trial because it allowed the
State to establish that Moody had pawned items in the past and
discredited Dr. Lewis’s claim that Moody was in a state of
dissociation when he pawned the guns after the murders. Even if
it were error to admit these documents without a proper
custodian of records, however, the admission of this evidence
does not constitute “fundamental error” because the prosecution
had presented other evidence that Moody had pawned items in the
past. Moody’s ex-girlfriend, for example, testified that Moody
had pawned his guns to obtain money to buy drugs, establishing
that he knew how to convert guns into cash and was not doing so
for the first time in a state of dissociation after the murders.
Additionally, the State rebutted Dr. Lewis’s claims that Moody
was in a psychotic, dissociated state by moving into evidence
without objection the first two pawn slips, describing the guns
that Moody stole from the Malone house. This evidence showed
Moody’s intent to profit by his crimes and thus undermined his
claim that he was psychotic at the time of the killings. Thus
- 65 -
even if admission of the pawn records were error, those records
were merely cumulative and did not deprive Moody of a fair
trial.
¶122 Finally, we note that even had Moody preserved this
issue for appeal, reversal would not be an appropriate remedy.
Reversal is not required if the error could easily be remedied
on retrial. See State v. Best, 146 Ariz. 1, 4, 703 P.2d 548,
551 (1985) (holding that “reversal would not be appropriate if a
retrial would involve admission of what is presently objected
to”); State v. Garrison, 120 Ariz. 255, 258, 585 P.2d 563, 566
(1978) (“Were we to reverse on this ground, it would only result
in a retrial at which the same evidence would be
admitted . . . . Courts should not engage in such futile
practices.”). Because Moody does not dispute that this evidence
would have been admissible had the proper foundation been laid,
on retrial the State could simply call the custodian of records
and have this evidence admitted. That being said, we do not
condone the State’s failure to lay a proper foundation for the
evidence. Nonetheless, we conclude that there was no
fundamental error in denying Moody’s objection to the evidence.
2. Detective Wright’s Opinion on Moody’s Guilt
¶123 Moody claims that fundamental reversible error
occurred when the State elicited testimony from Detective Wright
- 66 -
that she “believed Mr. Moody was responsible for these brutal
murders.”10 Moody did not object at the time of the testimony,
but moved for a mistrial on this ground the next morning. The
trial court denied the motion, noting that there had been no
objection at the time. The court commented that no prejudice
resulted from the statements because the defense did not deny
that Moody committed the murders; the defense was that he was
insane when he committed them. The court observed that “who did
the murders is not seriously at issue.” Thus, the judge
implicitly concluded that Detective Wright’s statement had not
unfairly prejudiced Moody. Moreover, before deliberation, the
court instructed the jurors that they were not to give the
testimony of police officers any greater weight than they gave
to the testimony of any other witnesses and that opinions as to
guilt or innocence were to be disregarded. Moody now argues
that denial of his mistrial motion was error and warrants
reversal.
¶124 We review a trial court’s failure to grant a mistrial
for an abuse of discretion. State v. Dann, 205 Ariz. 557, 570,
10
On cross-examination of Detective Wright, Moody’s counsel
attempted to show that the Detective was “out to get” Moody. On
rebuttal, the State asked why the Detective focused her
investigation on Moody. She replied, as set forth above, that
she did so because she believed Moody had committed the murders.
- 67 -
¶ 43, 74 P.3d 231, 244 (2003). Whether this issue was properly
preserved is in question, because Moody failed to lodge a
specific, contemporaneous objection and deprived the court of an
opportunity to correct any error that may have occurred with an
immediate curative instruction. Ultimately, however, Moody’s
claim fails to withstand even an abuse of discretion analysis.
¶125 The State concedes that Detective Wright’s statement
was improper, citing Fuenning v. Superior Court, 139 Ariz. 590,
605, 680 P.2d 121, 136 (1983) (supp. op.) (stating that it is
“neither necessary nor advisable to ask for a witness’ opinion
of whether the defendant committed the crime with which he was
charged”); cf. State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d
73, 76 (1986) (noting that we generally do “not permit expert
testimony on how the jury should decide the case”).
¶126 “A declaration of a mistrial, however, is ‘the most
dramatic remedy for trial error and should be granted only when
it appears that justice will be thwarted unless the jury is
discharged and a new trial granted.’” Dann, 205 Ariz. at 570, ¶
43, 74 P.3d at 244 (quoting State v. Adamson, 136 Ariz. 250,
262, 665 P.2d 972, 984 (1983)). A witness’s statement of belief
in a defendant’s guilt does not necessarily warrant a mistrial.
State v. Herrera, 203 Ariz. 131, 135, ¶ 7, 51 P.3d 353, 357
(App. 2002). In Herrera, for example, the court of appeals held
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that the trial court did not abuse its discretion in refusing to
grant a mistrial after it sustained an objection to an
impermissible statement regarding the defendant’s guilt, struck
the statement from the record, and promptly gave a curative
instruction to the jury. Id. ¶ 3. No contemporaneous objection
was made in this case, but when an objection was raised the next
day, the trial court agreed to give an appropriate instruction
to the jury before deliberations began. The judge ultimately
did so, instructing the jury that “[t]he testimony of a police
officer is not entitled to any greater or lesser weight or
believability merely because of the fact he or she is a police
officer” and that “[a]ny opinion expressed by any witness as to
the defendant’s guilt or innocence is irrelevant to your
consideration and must be disregarded. The jury is the sole
judge of the guilt or innocence of the defendant.”
¶127 Additionally, the trial court was correct in ruling
that Detective Wright’s opinion that Moody killed the victims
did little to prejudice Moody in proving the ultimate issue in
this case: whether Moody was insane when he murdered Michelle
Malone and Patricia Magda. Although Detective Wright’s opinion
would have been prejudicial if Moody were disputing that he
killed the victims, the prejudice was reduced substantially
because the defense was that Moody was insane when he committed
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the acts. In light of the posture of this case, we conclude
that the trial court did not abuse its discretion in denying
Moody’s mistrial motion.
3. Physical Evidence
¶128 Moody claims that the trial court erred in admitting
certain physical evidence at trial. Before trial, defense
counsel requested that the State release all blood, DNA,
handwriting, and ballistic evidence for independent testing.
The State refused to release the evidence unless the defense
stipulated that the “items are the same items that were obtained
by the ‘finders’ listed below and examined by the ‘analysts’
listed below.” Moody refused to so stipulate and moved to
compel the State to release the evidence. The trial court
denied the motion, ruling that the State had the right to
require Moody to sign a reasonable stipulation regarding the
integrity of the evidence. On appeal, Moody claims that the
court’s ruling was error.
¶129 Arizona Rule of Criminal Procedure 15.1(e) provides
that, upon written request, the prosecutor must “make available
to the defendant for examination, testing, and reproduction” any
items disclosed as evidence. Moody further urges that the State
“may not unreasonably interfere with an accused’s reasonable
attempts to secure, at his own expense, a blood or other
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scientific test.” Smith v. Cada, 114 Ariz. 510, 514, 562 P.2d
390, 394 (App. 1977).
¶130 Rule 15.1(e) also provides, however, that “[t]he
prosecutor may impose reasonable conditions, including an
appropriate stipulation concerning chain of custody, to protect
physical evidence produced under this section.” While our
courts have yet to address this issue, we believe that the trial
court is in the best position to determine whether a stipulation
is “appropriate,” and we will review its decision for an abuse
of discretion.
¶131 In this case, the court found the proposed stipulation
appropriate. The court noted that without it, the State might
lose its ability to present the evidence at trial. However,
defense counsel continually expressed its willingness to
stipulate to a chain of custody for the entire time that the
evidence would be in the possession of the defense team. It was
merely unwilling to stipulate to a chain of custody for the time
that the evidence was in the State’s possession. Moody alleged
that his reason for so refusing was that the prosecution itself
could not avow to the chain of custody regarding certain pieces
of evidence, an argument he repeats on appeal. The State did
not argue this point in its response brief, which we take as a
concession.
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¶132 In light of the above, we have some difficulty with
the trial court’s conclusion that the State offered an
appropriate chain of custody stipulation. However, even if we
were to find an abuse of discretion here, such an abuse would be
subject to review for harmless error. See State v. Bible, 175
Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). An error is
harmless “if we can say, beyond a reasonable doubt, that the
error did not contribute to or affect the [jury’s] verdict.”
Id.
¶133 Moody’s lone defense at trial was that he was insane
when he committed the murders of Malone and Magda; he has never
seriously contested that he killed the victims. The evidence at
issue — blood, DNA, handwriting samples, and ballistic evidence
— does not bear on the critical issue in this case: Moody’s
claim of insanity. Consequently, while we do not condone
unreasonable stipulations that operate to deprive defendants of
their right to test evidence independently, based on the record
before us we conclude that this evidence would not have affected
the jury’s determination regarding Moody’s sanity and therefore
any error was harmless.
K. Admission of Teibel Testimony
¶134 Moody alleges as error the trial court’s failure to
preclude the testimony of David Teibel, a newspaper reporter who
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interviewed Moody and wrote a story about the murders that
appeared in the Tucson Citizen in 1994. Following a pretrial
hearing to review the scope of the “reporter’s privilege,” the
trial court ordered that questioning of Teibel be limited to
matters “concerning the authenticity of statements attributable
to Mr. Moody that were contained in one or more news articles
authored by Mr. Teibel and published in the Tucson Citizen.”
Moody alleges that the trial court abused its discretion and
denied him a fair trial by failing to preclude Teibel’s
testimony altogether or, in the alternative, by limiting the
scope of his cross-examination of Teibel.
¶135 Whether to preclude or limit a witness’s testimony
lies within the discretion of the trial court. See State v.
Tucker, 157 Ariz. 433, 439, 759 P.2d 579, 585 (1988) (noting
that the sanction of preclusion of testimony for disclosure
violations is reviewed for an abuse of discretion); State v.
Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977) (holding
that the trial court has the discretion to curtail the scope of
cross-examination when appropriate). Consequently, we will not
reverse the court’s ruling on this issue absent an abuse of that
discretion. See Tucker, 157 Ariz. at 439, 759 P.2d at 585.
¶136 Both the United States and Arizona Constitutions
guarantee a criminal defendant the right to confront witnesses.
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U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. This right
includes the right to cross-examination, Pointer v. Texas, 380
U.S. 400, 404 (1965), and may be violated if a defendant is
“prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the
part of the witness, and thereby ‘to expose to the jury the
facts from which jurors . . . could appropriately draw
inferences relating to the reliability of the witness.’” Olden
v. Kentucky, 488 U.S. 227, 231 (1988) (alteration in original)
(citations omitted).
¶137 In Arizona, a trial judge “may place reasonable limits
upon the scope of cross-examination, without infringing upon the
defendant’s right of confrontation.” State v. Lehr, 201 Ariz.
509, 518, ¶ 30, 38 P.3d 1172, 1181 (2002). These limits become
unconstitutional only when they deny the opportunity to present
“information which bears either on the issues in the case or on
the credibility of the witness.” Fleming, 117 Ariz. at 125, 571
P.2d at 271.
¶138 In this case, the court limited cross-examination to
“questions [that] probe the veracity, accuracy and authenticity
of the statements made by the defendant,” and expressly
precluded any “questions about unpublished information, [or
about] reportorial or editorial processes, practices, policies
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or activities of Mr. Teibel’s employment.” He had two grounds
for doing so: his belief that Teibel had a “reporter’s
privilege” that protected the information and his determination
that the information was not relevant.
¶139 Moody claims that Teibel had no valid “reporter’s
privilege” and that the trial court abused its discretion in
finding one. In Arizona, a reporter has a privilege to shield a
confidential source for an article. See A.R.S. § 12-2237
(2003). We agree with Moody that the reporter’s privilege is
not implicated in this case because Teibel’s article did not
involve a confidential source. The question then becomes
whether the trial court’s limitation on the cross-examination of
Teibel was justified on other grounds or whether it violated
Moody’s right to confront a witness against him.
¶140 We conclude that the trial court’s limitation is
sustainable on relevancy grounds and because the information
allegedly sought from the witness would not have reflected on
the witness’s reliability or was cumulative. Evidence is
relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” Ariz. R. Evid. 401. Moody argues that he was
unconstitutionally denied the opportunity to question Teibel on
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two relevant subjects: unpublished information and the
editorial process. As the State correctly observes, the record
undermines Moody’s claim.
¶141 Defense counsel had ample opportunity to cross-examine
Teibel on the reliability of the article, despite the
limitations imposed by the court. In fact, defense counsel
stated at the outset of Teibel’s examination that it would treat
Teibel “like any other witness” and would “ask him appropriate
cross-examination,” leaving it to the trial court to sustain or
overrule objections to his questions. Throughout cross-
examination the State objected only twice and its objection was
sustained only once.
¶142 By the time cross-examination had concluded, Teibel
had conceded that he did not record the interview with Moody,
that he had destroyed the only notes he took of the interview,
that he attributed language to Moody that Moody never used,
that it was possible that Moody described his actions
differently from the way Teibel reported them, that Teibel
paraphrased Moody’s words, and that Teibel’s first draft had
been edited and was not published as originally written.
¶143 Ultimately, it is difficult to imagine what relevant
information Teibel might have had that Moody was denied an
opportunity to bring out. The examples Moody cites in his
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briefs range from the completely irrelevant (for example, “who
the editors were”) to material that was merely cumulative.
Despite Moody’s claims that he was denied the opportunity to
impeach Teibel, bring out his own version of the events, and
question Teibel about the editorial process, the record reflects
that defense counsel did all of these things. Consequently, we
cannot conclude that the trial court abused its discretion by
allowing Teibel to testify under an order that limited the scope
of examination.
L. Prosecutorial Misconduct
¶144 Moody alleges five separate instances of prosecutorial
misconduct that he claims warrant reversal: (1) appealing to
the jurors’ emotions in closing argument; (2) improperly using
non-testifying doctors’ opinions; (3) using the false Carlos
Logan information substantively in closing argument; (4) arguing
the content of Moody’s videotaped interview; and (5) improperly
stating the defense’s burden of proof on the insanity defense.
¶145 To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that “(1) misconduct is indeed
present; and (2) a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby
denying defendant a fair trial.” State v. Atwood, 171 Ariz.
576, 606, 832 P.2d 593, 623 (1992), disapproved on other grounds
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by State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25, 25 P.3d 717,
729 (2001). We analyze each of Moody’s claims in turn.11
1. Inflammatory Appeals to Emotion
¶146 Moody raises several claims that the prosecutor
committed misconduct in appealing to the jurors’ emotions in
closing argument. Of these, Moody’s most substantial claim is
his challenge to the prosecutor’s appeal to the jurors’ fears
that Moody would be released if found “not guilty by reason of
insanity” (“NGBRI”). Additionally, Moody claims that the
prosecutor improperly belittled him by referring to him as “poor
Robert” and then impermissibly injected the victims’ suffering
into closing argument. Because only the first of these was
objected to and preserved for appeal, we address each claim
separately, reviewing the latter two only for fundamental error.
See State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217
(1981).
a. The “Cut Loose” Comment
¶147 Before closing arguments, defense counsel requested a
11
In State v. Hughes, 193 Ariz. 72, 969 P.2d 1184 (1998),
this court applied the “cumulative error” doctrine to a case in
which an appellant raised seven separate claims of misconduct,
the cumulative effect of which he alleged “denied him a fair
trial.” Id. at 78, ¶ 24, 969 P.2d at 1190. Although Moody
cites Hughes in passing, he develops no argument on this point.
It is therefore waived. See State v. Carver, 160 Ariz. 167,
175, 771 P.2d 1382, 1390 (1989).
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jury instruction that would explain the ramifications of an
NGBRI verdict. Defense counsel feared that the jurors would be
reluctant to find Moody NGBRI if they thought such a verdict
would put Moody “out on the street.” The State argued against
giving the instruction and the court denied the defense request.
¶148 The next day, knowing that no instruction would be
given on the effect of an NGBRI verdict, the prosecutor argued
in his rebuttal closing argument that “the defendant is asking
you to excuse a man who has brutally [and] viciously . . .
murdered two innocent women on the basis of a disorder that is
not even settled in the mental health field . . . . Before you
cut somebody loose on that kind of disorder . . . .” The court
sustained an objection from defense counsel and instructed the
jury to “disregard the last comments by the prosecutor.” The
prosecutor then clarified his remarks, stating “[b]efore you
find someone not guilty, which is what I’m talking to you about,
I would think that you would want some reliable evidence and
there isn’t any.” Moody now argues that this appeal to emotion
warrants reversal.
¶149 It is misconduct to appeal to the jurors’ fears that
an NGBRI verdict will result in a defendant’s release. State v.
Makal, 104 Ariz. 476, 478, 455 P.2d 450, 452 (1969). That is
clearly what the prosecutor did by asking the jury not to “cut
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[Moody] loose.” The State relies on dicta in Donnelly v.
DeChristoforo, 416 U.S. 637, 647 (1974), for the proposition
that “a court should not lightly infer that a prosecutor intends
an ambiguous remark to have its most damaging meaning or that a
jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.” We
conclude, however, that the prosecutor’s remarks were not
ambiguous.
¶150 The phrase “cut somebody loose” requires no
inferential leap to interpret. It is difficult to imagine any
interpretation of the prosecutor’s “cut loose” comment other
than that an NGBRI verdict would result in Moody’s release. Not
only did this comment impermissibly appeal to the jurors’ fears,
but it was also an incorrect statement of law, because under
Arizona law a defendant who is found NGBRI is “committed to a
secure state mental health facility.” A.R.S. § 13-3994 (2001).
The egregiousness of the statement was magnified by the
prosecutor’s knowledge that the jury would not be instructed on
the consequences of an NGBRI verdict.
¶151 Still, the mere fact that a prosecutor makes improper
remarks does not require reversal unless, “under the
circumstances of the case, [the jury] was probably influenced by
those remarks.” State v. Puffer, 110 Ariz. 180, 181, 516 P.2d
- 80 -
316, 317 (1973). As in Puffer, Moody’s counsel objected to the
remark, the objection was sustained, and the jury was
immediately instructed to disregard the prosecutor’s comments.
See id. Moreover, in this case the prosecutor then made
comments that sought to remedy his previous misconduct, and
before the jury convened for deliberations, the trial court
instructed the jury that it was not to consider the possible
effects of its verdict.
¶152 In State v. Cornell, 179 Ariz. 314, 328, 878 P.2d
1352, 1366 (1994), this court stated that the “experienced
prosecutor should have known better than to make such remarks,
and his actions seem almost calculated to bring prejudicial and
irrelevant matters before the jury. His conduct jeopardized the
proceedings.” We echo those concerns regarding the prosecutor’s
statement in this case. However, as in Cornell, “[w]e do not
. . . reverse convictions merely to punish a prosecutor’s
misdeeds []or to deter future misconduct.” Id. Rather,
reversal is required only when “the defendant has been denied a
fair trial as a result of the actions of [the prosecutor].”
Bible, 175 Ariz. at 600, 858 P.2d at 1203 (quoting State v.
Dumaine, 162 Ariz. 392, 400, 783 P.2d 1184, 1192 (1989)). The
prosecutor’s “cut loose” comment was irresponsible,
inappropriate, and inflammatory. However, because it was an
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isolated comment, was promptly objected to, and was rendered
less harmful by instructions by the court, we cannot conclude
that the comment, by itself, denied Moody a fair trial.
b. The “Poor Robert” Comment
¶153 Moody alleges that the prosecutor patronized and
belittled him in rebuttal closing argument. The prosecutor, in
discussing the defense’s claim that people did not understand
dissociative identity disorder, referred to the defendant as
“poor Robert Moody” for being afflicted with a disorder that no
one understands. Moody did not object to this comment. Failure
to object to a comment in closing argument waives that argument
on appeal, and we therefore review it only for fundamental
error. See Thomas, 130 Ariz. at 435, 636 P.2d at 1217.
¶154 “Attorneys, including prosecutors in criminal cases,
are given wide latitude in their closing arguments to the jury.”
State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990).
Although Moody cites Comer for the proposition that it is
misconduct to belittle the defendant in closing argument, Comer
does not stand for that proposition. Comer held that a
prosecutor improperly appealed to the jurors’ emotions by
referring to the defendant as a “monster,” “filth,” and the
“reincarnation of the devil on earth.” Id. We held that
prosecutors “may comment on the vicious and inhuman nature of
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the defendant’s acts,” but “may not make arguments which appeal
to the passions and fears of the jury.” Id. Although we agree
that belittling a criminal defendant in closing argument is
improper and unnecessary, given the evidence in this case we do
not find that the passing comment constituted fundamental error.
We therefore conclude that referring to the defendant as “poor
Robert Moody” was not an error “of such dimensions that it
cannot be said it is possible for a defendant to have had a fair
trial.” State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744
(1977).
c. Describing the Victims’ Suffering
¶155 Moody claims that the prosecutor committed reversible
misconduct by “graphically describing the suffering of each
decedent” and ending his argument by telling the jury that Moody
had no sympathy for the victims and asking them to have no
sympathy for him. Moody failed to object to these comments,
limiting our review to one for fundamental error. See Thomas,
130 Ariz. at 435, 636 P.2d at 1217.
¶156 Moody mischaracterizes the prosecutor’s statements.
After reviewing the record, we see no “graphic description” of
the victims’ suffering. The prosecutor’s frank description of
the murders themselves is permissible. See Comer, 165 Ariz. at
426, 799 P.2d at 346 (“Within the latitude of closing argument
- 83 -
counsel may comment on the vicious and inhuman nature of the
defendant’s acts. In so doing, however, counsel may not make
arguments which appeal to the passions and fears of the jury.”).
Moody has failed to show fundamental error on this point. Nor
does Moody cite any cases suggesting that it was improper to ask
the jury to have no sympathy for him. Indeed, we encourage
jurors not to decide cases based on emotion or sympathy. We
conclude that such a statement passes muster as an exhortation
to the jury to do its duty. Moody therefore fails to
demonstrate fundamental error requiring reversal on this issue.
2. Improper Use of Non-Testifying Doctors’ Opinions
¶157 Moody alleges that the prosecutor used the reports and
opinions of non-testifying doctors for impermissible purposes.
He claims that the prosecutor erred both by injecting these
reports and opinions into his examination of witnesses and by
arguing them substantively in closing argument.
¶158 On the first argument, Moody contends that the
prosecutor used the reports of Drs. Potts, LaWall, Vesper, and
Geffen to impeach defense experts Drs. Goldberg and Lewis.
After Dr. Goldberg stated his conclusion that the results of the
tests he administered to Moody were not consistent with someone
who was malingering, the prosecutor asked Dr. Goldberg on cross-
examination whether he had reviewed a report by Dr. Geffen that
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concluded that it was “very likely” that Moody was malingering,
or if he had seen Dr. Potts’, Dr. LaWall’s, or Dr. Morenz’s
reports, all of which indicated that Moody was “possibly”
malingering. Dr. Goldberg said that he had not seen any of
these reports. Defense counsel did not object to this line of
questioning.
¶159 Two days later, defense expert Dr. Lewis testified
that Moody was suffering from dissociative identity disorder
(“DID”), a mental illness that she claimed had developed early
in Moody’s childhood and rendered him psychotic. On cross-
examination, the prosecutor asked Dr. Lewis if she had reviewed
the report that Dr. Potts drafted after he spent six months
observing Moody. When Dr. Lewis answered “yes,” the prosecutor
asked her to confirm that Dr. Potts had not diagnosed Moody as
having DID and that nothing in the report suggested that such a
diagnosis was appropriate. There was no objection to this line
of questioning.
¶160 The next day, the State called Dr. Sullivan to rebut
the testimony of Drs. Goldberg and Lewis. On direct
examination, the prosecutor asked Dr. Sullivan his reasons for
believing that Moody was malingering. One of the reasons Dr.
Sullivan gave was that Drs. LaWall, Geffen, Potts, and Morenz
“all concluded that Mr. Moody was malingering.” Moody neither
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objected to this question nor moved to strike the answer.
¶161 Moody’s final allegation of misconduct is that the
prosecutor’s substantive use of the doctors’ opinions in closing
argument was error. In closing, the prosecutor argued that
Moody had a “history of malingering.” As support, he cited Dr.
Geffen’s initial testing, despite the fact that Dr. Geffen had
not testified at trial. Moments later, the prosecutor stated
that Drs. “LaWall, Potts, and Geffen also say [Moody is]
malingering,” despite the fact that neither Dr. LaWall nor Dr.
Potts had testified at trial. On rebuttal, the prosecutor
argued that DID does not render one legally insane because
“[e]ven Dr. Vesper says just because you have dissociative
identity disorder doesn’t mean you don’t have control.” Dr.
Vesper, an expert retained by the defense to evaluate Moody’s
competency to stand trial, did not testify during this trial.
Finally, the prosecutor indicated that Drs. LaWall, Potts, and
Geffen “didn’t buy” Moody’s insanity defense.
¶162 The defense did not object to any of these arguments.
The defense also did not object to the use of Dr. Potts’ reports
or the reports of the other doctors at trial.12 Additionally,
12
Moody did file a motion in limine before trial to preclude
Dr. Potts as a witness on the grounds of late disclosure of the
doctor’s notes, but the trial judge did not find preclusion to
be an appropriate sanction. In Hughes, we held that “when
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although Moody claims that he moved for a mistrial “immediately
after the State’s first use of a nontestifying doctor’s
opinion,” in fact he did not so move until the next morning, and
the sole basis for that motion was that those reports were
tainted by the false Carlos Logan information, not that they
were improper opinions of non-testifying third parties.
¶163 On appeal, Moody challenges the reports as containing
improper hearsay evidence that could not be argued substantively
for its truth. Because, however, the “evidence [was] objected
to on one ground [that is, late disclosure] and admitted over
the objection, other grounds not specified [such as hearsay] are
waived.” State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166
(1982). Consequently, we review this claim only for fundamental
error. See State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830,
837 (1995).
¶164 The prosecutor argued that the non-testifying doctors’
reports could be used to impeach the defense experts. Rule 703
of the Arizona Rules of Evidence allows an expert witness to
counsel [makes] the court aware of his objection through a
previous motion, failure to object at trial does not then waive
the issue on appeal.” 193 Ariz. at 85, ¶ 58, 969 P.2d at 1198.
The only ground ever offered by the defense for precluding Dr.
Potts’ testimony or reports, however, was late disclosure of Dr.
Potts’ notes to defense counsel, which defense counsel claimed
impaired his opportunity and ability to interview Dr. Potts.
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base an opinion on “facts or data” not admissible in evidence.
The information need not be admissible if it is of the “type
reasonably relied upon by experts in the particular field.” Id.
Once disclosed to the jury, this information is “not admitted as
substantive evidence, but only for purposes of showing the basis
of the expert’s opinion.” State v. Lundstrom, 161 Ariz. 141,
146, 776 P.2d 1067, 1072 (1989). Moody argues that the
prosecutor violated Lundstrom by using the facts and opinions
contained in the reports substantively to impeach Drs. Goldberg
and Lewis, to bolster the opinion of Dr. Sullivan, and in
closing argument.
a. Use of Reports in Examination of Witnesses
¶165 Moody claims that the prosecutor’s use of the reports
to bolster Dr. Sullivan’s testimony and to discredit that of
Drs. Goldberg and Lewis violated this court’s holding in
Lundstrom, 161 Ariz. at 141, 776 P.2d at 1067. In Lundstrom,
this court stated that while Arizona Rule of Evidence 703 allows
an expert to testify to “facts or data” not admissible in
evidence, “if the testifying expert merely acts as a conduit for
another non-testifying expert’s opinion, the ‘expert opinion’ is
hearsay and is inadmissible.” 161 Ariz. at 148, 776 P.2d at
1074. Although Moody raises a colorable claim that the
prosecutor’s actions here violated Lundstrom, he failed to lodge
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a contemporaneous objection based on hearsay or confrontation
grounds.13 Consequently, his burden is to demonstrate not merely
that a Lundstrom violation has occurred, but that this violation
rendered it impossible for him to have received a fair trial.
See Bolton, 182 Ariz. at 297, 896 P.2d at 837 (stating that
matters not raised at trial are reviewed for fundamental error);
Smith, 114 Ariz. at 420, 561 P.2d at 744 (noting that
fundamental error is “error of such dimensions that it cannot be
said it is possible for a defendant to have had a fair trial”).
He develops no such argument and has not met the burden of
demonstrating how the use of the non-testifying doctors’
opinions here constitutes fundamental error.
b. Use of Reports in Closing Argument
¶166 Moody argues that the prosecutor improperly used the
non-testifying doctors’ reports as substantive evidence on four
occasions during closing argument and rebuttal. First, the
prosecutor referred to Dr. Geffen’s initial testing as proof of
Moody’s “history of malingering.” Second, he stated that Drs.
“LaWall, Potts and Geffen also say he’s malingering.” Third, he
13
Moody’s counsel moved for a mistrial the following day on
grounds of “misconduct.” He did not specifically object on
grounds of hearsay or denial of Moody’s right to confront
witnesses. See supra, ¶ 162; see also Zuck, 134 Ariz. at 513,
658 P.2d at 166 (failure to object on specific grounds waives
error on appeal).
- 89 -
argued that even if the jurors agreed with Dr. Lewis’s diagnosis
of dissociative identity disorder, Dr. Vesper’s opinion was that
such a disease did not prevent an individual from controlling
his or her actions. Finally, he stated that Drs. LaWall, Potts,
and Geffen “didn’t buy” Moody’s insanity defense.
¶167 Moody claims that by arguing the substantive content
of the non-testifying doctors’ reports in closing argument, the
prosecutor violated this court’s determination in Lundstrom that
while such reports may be used to show the bases of the expert’s
opinion, they may not be used as substantive evidence. 161
Ariz. at 148, 776 P.2d at 1074. We note, however, that by
failing to object to any of these instances at trial, Moody
deprived the court of the opportunity to cure any misuse of the
reports by instructions or otherwise. See State v. Dann, 205
Ariz. 557, 575, ¶ 73, 74 P.3d 231, 249 (2003). Consequently, as
above, Moody’s burden is not merely to demonstrate error, but
also to show that the error deprived him of a fair trial. See
Smith, 114 Ariz. at 420, 561 P.2d at 744 (defining “fundamental
error”).
¶168 In light of this burden, we conclude that the
prosecutor’s injection of the non-testifying doctors’ opinions
into closing argument was not fundamental error. Indeed, given
the other evidence presented at trial, it was merely cumulative.
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Both Drs. Sullivan and Morenz testified at trial that they
believed Moody to be malingering, and both set forth substantial
grounds upon which they based their opinions. Because the jury
already had before it ample “proper” evidence that Moody was
faking or exaggerating symptoms of mental illness, the
prosecutor’s recitation of the non-testifying doctors’
cumulative opinions in closing argument did not deny Moody a
fair trial. Consequently, we conclude that if there were error
here, it was not fundamental and therefore does not require
reversal.
3. Improper Use of Moody’s Videotaped Confession
¶169 Moody also challenges the prosecutor’s substantive use
in closing argument of Moody’s videotaped confession.
¶170 During trial, defense counsel asked to play Moody’s
videotaped confession for the jury so the jurors could determine
whether Moody was malingering. Over the State’s objection, the
trial court permitted the defense to play the tape, but
instructed the jury to consider only Moody’s demeanor and not to
consider statements from the tape as substantive evidence.
¶171 After the videotape was played, the prosecutor
requested that the State be permitted to ask the experts about
the effect of the videotape on their opinions about Moody’s
malingering. The court agreed. On direct examination of Dr.
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Sullivan, the prosecutor asked if, in his review of the
videotape, the doctor had noticed any inconsistencies “in terms
of what [Moody] remembers or what he doesn’t remember.” Dr.
Sullivan then testified that Moody was initially told only that
Patricia Magda was his next-door neighbor, but later in the
interview he indicates that he is being held for murdering his
next-door neighbor, despite the fact that no one had identified
her as a murder victim. Four days later, the defense moved for
a mistrial, arguing that Dr. Sullivan improperly considered the
content of the videotape. The court denied the motion,
reminding counsel that the restriction on substantive
consideration applied only to the jury and that the experts
could properly consider the content of the videotape.
¶172 In closing argument, the prosecutor argued that the
tape showed that Moody was malingering. He stated that Moody
“ke[pt] up a good story for two hours or more,” but then made a
significant slip. He noted that when the videotape was at 18
hours, 30 minutes, and 30 seconds, Moody told the officers that
he did not know who Patricia Magda was; at 19:58:15, however, he
stated that he killed his next-door neighbor. The prosecutor
then said “[i]f you don’t think Dr. Sullivan got it right,
listen to the tape.” Moody now argues that the prosecutor
encouraged the jury to use the videotape for the precise purpose
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that the trial court expressly forbade, namely, as substantive
evidence of Moody’s guilt.
¶173 Moody never objected to this argument, however, and
therefore never provided the trial court the opportunity to cure
any error. See Dann, 205 Ariz. at 575, ¶ 73, 74 P.3d at 249.
Therefore, we review only for fundamental error. See id.; see
also Bolton, 182 Ariz. at 297, 896 P.2d at 837.
¶174 The prosecutor’s substantive use of the tape’s
contents in closing appears to have been error. The prosecutor
directed the jury to consider the tape for its content, giving
specific time references for statements he wished the jurors to
hear. Although the State argues that the prosecutor eventually
tied the videotape to Dr. Sullivan’s testimony by saying “[i]f
you don’t think Dr. Sullivan got it right, listen to the tape,”
he did so only after substantively discussing the videotape for
fifteen sentences. Such use of the videotape was specifically
prohibited by the trial court. However, a number of factors
mitigate the impact of the prosecutor’s conduct.
¶175 First, although the defense later objected to Dr.
Sullivan’s substantive reliance on the content of the video,
defense counsel had originally urged that the jurors be
permitted to consider the videotape evidence substantively.
Second, the prosecutor did not encourage the jurors to view the
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entire tape substantively, but directed them to the particular
point on the tape that would support his expert’s testimony.
Finally, the prosecutor obtained a waiver of the “demeanor only”
ruling to allow his expert to consider the contents of the
videotape and testify to it. Consequently, we conclude that the
prosecutor’s argument supporting Dr. Sullivan’s reliance on the
videotape to form his conclusion did not constitute fundamental
error.
4. Arguing False Carlos Logan Information
¶176 Moody challenges the prosecutor’s use of the false
Carlos Logan evidence for substantive purposes in closing
argument.
¶177 In its closing, defense counsel argued to the jury
that the opinions of Drs. Morenz and Sullivan were unreliable
because they were based in part upon the Carlos Logan evidence,
which was “a complete lie.” Counsel implied that the
information that Logan reported about Moody was fabricated and
derived from newspaper articles and police reports, and
suggested that Logan provided no details of the murders until he
was offered a plea deal four months after his arrest.
¶178 On rebuttal, the prosecutor made three arguments
designed to rebut these claims. First, he argued that Detective
Wright did not discover that some of what Carlos Logan had said
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was not true until September of 1995, long after the grand jury
testimony and police reports had been disseminated to the
doctors. Next, he argued that some of the Carlos Logan
information must be true because Logan had no way, other than a
first-person report from Moody, to know that Moody “stabbed [an]
old woman” or was featured on “America’s Most Wanted.” Finally,
the prosecutor asked the jury to consider how Moody must have
met Logan — a “small-time crack seller” — when considering the
defense’s theory that Moody was not a cocaine addict and was not
under the influence of cocaine at the time of the murders.
¶179 Moody made no contemporaneous objection to the
prosecutor’s comments during rebuttal argument. Failure to
object to a prosecutor’s comments during closing argument limits
our review to one for fundamental error only. See State v.
Phillips, 202 Ariz. 427, 437, ¶ 48, 46 P.3d 1048, 1058 (2002).
¶180 Counsel is given “wide latitude” in closing argument
to “comment on the evidence and argue all reasonable inferences”
from it. State v. McDaniel, 136 Ariz. 188, 197, 665 P.2d 70, 79
(1983). Further, “[c]omments that are invited and prompted by
opposing counsel’s arguments are not improper if they are
reasonable and pertinent to the issues raised.” State v.
Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997). The
prosecutor’s comments fall into this category.
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¶181 The State claims that telling the jury that the Carlos
Logan information was given to the doctors before the State knew
that it was false was intended to rebut defense counsel’s claim
that Carlos Logan’s false statements were “fed to mental health
professionals” to taint their opinions. The State maintains
that defense counsel invited this comment by putting at issue
the State’s motive for supplying the Carlos Logan information to
the doctors. We agree. Defense counsel’s suggestion that the
State intentionally tainted its experts opened the door for the
prosecution to rebut the assertion.
¶182 The State defends the prosecutor’s argument that Logan
must have learned certain information from Moody because Logan
had no access to any other sources containing that information.
The State argues that this inference was invited by the
defense’s suggestion that all of Logan’s evidence was false, or
at least was not learned from Moody, and that none of it should
have been considered by the doctors. We agree that the
prosecutor’s argument responded to arguments raised by defense
counsel in closing. It was also pertinent to the case because
Dr. Morenz testified that he relied at least in part on the
information in making his determination that Moody was
malingering, and an argument that he relied on false evidence
harms his credibility.
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¶183 The third comment — that Moody met with Logan, “a
small-time crack seller” — supports the inference that Moody was
a crack user. Evidence that Logan had sold crack had been
introduced by Moody’s counsel in his cross-examination of
Detective Wright. Moody had attempted to show that Logan should
not be believed because he was a criminal and a crack dealer.
Thus, the evidence was before the jury and its use was not
objected-to in closing.
¶184 The inference that Moody met Logan, a crack dealer,
supported the prosecution’s theory that Moody was a crack user.
This reasonable inference was supported by other evidence in the
record as well. For example, Moody never disputed that he had a
substantial crack-cocaine habit in the months before the
murders. Tucson Citizen reporter David Teibel testified that
Moody told him he had spent “three to four thousand dollars” on
“massive doses” of cocaine shortly before the Malone murder.
Moody’s ex-girlfriend also testified that, to support his
substantial crack-cocaine habit, Moody had sold all of his
appliances and much of his furniture and had pawned guns,
jewelry, and other items to obtain money to buy crack. Dr.
Morenz testified that Moody told him that aliens forced him to
use “massive quantities” of cocaine, a claim that Moody repeated
to his own expert, Dr. Lewis. Crack pipes and other
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paraphernalia were found in the vehicle that Moody stole from
Patricia Magda after killing her. Additionally, defense counsel
had already put evidence before the jury that Carlos Logan had
twelve separate drug-related arrests or convictions over the
previous decade, and the jury also heard evidence that Logan
told authorities he sold Moody pieces of “rock cocaine” in the
day-and-a-half before his arrest. Given the volume of evidence
on this point, we conclude that the prosecutor’s comment, by
itself, did not constitute error or deny Moody a fair trial.
5. Increasing the Defense Burden of Proof
¶185 As the final act of prosecutorial misconduct, Moody
challenges the prosecutor’s statement in closing argument that
the defense had the burden of producing “evidence that makes it
highly probable” that Moody was insane at the time of the
murders and was “not malingering.” The prosecutor reiterated
this burden in rebuttal closing argument. Moody claims that
this argument impermissibly increased his burden of proof and he
argues that reversal is required as a result. We disagree.
¶186 A defendant is required to prove insanity “by clear
and convincing evidence.” A.R.S. § 13-502(B) (1989).14 This
court has held the “clear and convincing” and “highly probable”
14
This requirement is now found in section (C). The section
cited in text is the version applicable to Moody’s case.
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standards to be interchangeable. State v. King, 158 Ariz. 419,
423-24, 763 P.2d 239, 243-44 (1988). Thus, Moody would have a
legitimate claim here only if he could demonstrate that the
burden to show that he is not faking insanity somehow differed
from the burden to show that he was, in fact, insane.
¶187 We fail to see the distinction between the two. To
demonstrate that one is insane, one must demonstrate that the
insanity is real and not “faked” or, as used in this case,
“malingered.” Moody fails to explain how the prosecution
misstated the applicable burden in this case and cites no
authority supporting his position. Consequently, we do not find
any error and decline to reverse Moody’s convictions on this
ground.
M. Incorrect Jury Instruction on Intoxication
¶188 Moody alleges that the court improperly instructed the
jury on the effect of intoxication. When Moody committed the
murders in November of 1993, A.R.S. § 13-503 (1989) provided as
follows:
[W]hen the actual existence of the culpable mental
state of intentionally or with the intent to is a
necessary element to constitute any particular species
or degree of offense, the jury may take into
consideration the fact that the accused was
intoxicated at the time in determining the culpable
mental state with which he committed the act.
That statute was amended effective January 2, 1994, to eliminate
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temporary intoxication as a defense “for any criminal act or
requisite state of mind.” A.R.S. § 13-503 (2001); 1993 Ariz.
Sess. Laws, ch. 256, §§ 2, 3. Rather than instructing the jury
that intoxication could be considered in determining Moody’s
mental state at the time of the acts, the trial court instructed
the jury on the later version of the statute, which disallows
intoxication as a defense.
¶189 Normally, we review de novo a claim that a jury
instruction misstates the law. State v. Orendain, 188 Ariz. 54,
56, 932 P.2d 1325, 1327 (1997). However, Moody failed to object
to the instruction and therefore did not preserve this issue for
appeal.15 See State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049,
1054 (1989) (“Failure to object to a jury instruction below
precludes defendant from claiming error on appeal unless the
error is fundamental.”).
15
Moody argues that he did object to the instruction. A
review of the record makes clear that he did not object to this
instruction on the ground that it did not state the law in
effect at the time Moody committed his crimes. Instead, Moody
objected to a related instruction that intoxication is not a
valid defense if it aggravates a preexisting mental illness. He
objected to this latter instruction only on the ground that
there was “no evidence of intoxication.” The court sustained
the objection. Moody never objected, however, to the court’s §
13-503 instruction; his general objection to a related
instruction is not sufficient to preserve this issue for appeal.
See State v. Long, 119 Ariz. 327, 328, 580 P.2d 1181, 1182
(1978) (holding that raising one objection to a jury instruction
does not preserve other objections on appeal).
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¶190 Moody offers two separate arguments that the error in
this case is fundamental and requires reversal: (1) the
instruction was erroneous because it misstated the law, and (2)
the instruction violated the Ex Post Facto Clauses of the United
States and Arizona Constitutions. U.S. Const. art. I, § 9;
Ariz. Const. art. 2, § 25.
¶191 We agree that the instruction given misstated the law
in effect at the time Moody committed his crimes and therefore
constitutes error. See State v. Walker, 138 Ariz. 491, 494, 675
P.2d 1310, 1313 (1984) (finding an instruction that misstates
the law is an error). Moreover, the change in A.R.S. § 13-503
was substantive because it deprived Moody of a defense that
existed at the time he committed his crimes. Thus the Ex Post
Facto Clauses of the United States and Arizona Constitutions
require that the version of § 13-503 in effect at the time the
crimes were committed be applied. See State v. Correll, 148
Ariz. 468, 481-82, 715 P.2d 721, 734-35 (1986) (finding that a
change in a capital sentencing aggravating factor was a
substantive change that required application of the version in
effect at the time the offense was committed).
¶192 The error in giving the incorrect jury instruction was
compounded by the prosecutor, who argued the improper
instruction to the jury. He stated: “just so we’re clear,
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temporary intoxication is not insanity. That’s not me saying
that[;] you’re going to get an instruction that says this: the
fact he’s using drugs and on drugs or withdrawing from drugs is
not insanity . . . . It is not a defense and it is not
insanity.”
¶193 However, because Moody failed to object and our review
is limited to fundamental error, we can reverse on this basis
only if the error is “of such dimensions” that it deprived him
of a fair trial. See Smith, 114 Ariz. at 420, 561 P.2d at 744.
Because of the defenses asserted and the facts placed before the
jury in this case, we do not find the error fundamental.
¶194 Throughout trial, the defense strategy was to distance
Moody from drug use and show that the murders were the result of
psychosis, not cocaine addiction or intoxication by drug use.
Indeed, arguing against a State-proposed instruction on
intoxication, defense counsel urged that the court could not
give it because it was unsupported. He denied that there was
any “evidence of intoxication during the event.” He noted that
the only evidence that Moody was using drugs was Dora King’s
statement that Moody had smoked crack approximately seven days
before the first murder. Thus, defense counsel argued, the jury
was provided “no evidence [Moody] was intoxicated” at the time
of the killings. While the State attempted to argue that
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evidence presented of Moody’s past drug use suggested that the
motive for committing the crimes was to get money to buy more
cocaine, defense counsel argued that an instruction on
intoxication would be “inviting the jury to speculate where
there is no evidence.” Although there was substantial evidence
of extensive drug use in the weeks before the murders, see supra
¶¶ 183-84, there was no evidence of intoxication at the time of
the offense.
¶195 In urging that reversal is required here, Moody relies
on State v. Hudson, 85 Ariz. 77, 331 P.2d 1092 (1958), in which
we reversed the defendant’s murder conviction and remanded for a
new trial because the trial court failed to give an instruction
on voluntary intoxication. The defendant in that case, however,
expressly defended on the grounds that he lacked the requisite
mental state because he was intoxicated, and, unlike Moody’s
case, in Hudson there was some evidence of intoxication at the
time of the murders, as well as intoxication in the days
preceding them. Id. The evidence indicated that the defendant
had “helped consume a total of two and three-fourths gallons or
eleven quarts of wine on the day of the killing and the day
preceding it.” Id. at 81, 331 P.2d at 1095. In light of this
evidence, we held that the trial court’s failure to properly
instruct the jury on the effect of intoxication deprived the
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defendant of an “important right, which the law accorded him, to
have the jury pass on the truthfulness of his story, and, if
they believed that he was intoxicated to any extent to say
whether such intoxication prevented him from entertaining the
malice necessary to constitute murder in the second degree.”
Id.
¶196 In Moody’s case, the defense attempted to defeat any
evidence of drug use and consistently argued that there was no
evidence that Moody used drugs near the time of the murders.
Moody presented evidence throughout trial demonstrating that
these crimes were caused by psychosis and not by cocaine. Nor
did the State present any evidence that Moody was intoxicated at
the time of the murders. As a result, instructing the jury
regarding the effect of intoxication at the time of the murders
did not negate a culpable mental state and did not render
Moody’s trial fundamentally unfair. Consequently, relief is
denied on this ground.
N. Failure to Give a Voluntary Act Instruction
¶197 Moody alleges error in the trial court’s refusal to
give a voluntary act instruction. The proposed instruction
directly tracked the language of A.R.S. § 13-201 (2001) that
“[t]he minimum requirement for criminal liability is the
performance by a person of conduct which includes a voluntary
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act or the omission to perform a duty imposed by law which the
person is physically capable of performing.” We review a trial
court’s refusal to give a jury instruction for an abuse of
discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830,
849 (1995). A defendant is entitled to a jury instruction on
any theory reasonably supported by the evidence. State v.
Melendez, 121 Ariz. 1, 5, 588 P.2d 294, 298 (1978).
¶198 Moody argues that his defense at trial was that he was
not in control of his actions, and that this argument was
supported by the testimony of Drs. Lewis, Morenz, and Sullivan,
all of whom testified that Moody reported not being in control
of his actions. Moody misconstrues the voluntary act necessary
to support the imposition of criminal responsibility. As a
result, the trial court correctly determined that a voluntary
act instruction was not reasonably supported by the evidence.
¶199 In State v. Lara, 183 Ariz. 233, 234, 902 P.2d 1337,
1338 (1995), this court clarified that the “voluntary act”
requirement of A.R.S. § 13-201 merely codified the common-law
actus reus requirement. In Lara, the defendant asserted that he
had not acted voluntarily because he suffered from an organic
brain impairment and personality disorder. Id. We held,
however, that “the term ‘voluntary act’ [means] a determined
conscious bodily movement, in contrast to a knee-jerk reflex
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driven by the autonomic nervous system.” Id. at 234-35, 902
P.2d at 1338-39. We noted “bodily movement[s] while
unconscious, asleep, under hypnosis, or during an epileptic fit”
as examples of involuntary acts. Id. at 234, 902 P.2d at 1338.
Thus, despite Lara’s brain damage and personality disorders, the
court found no evidence that his act was involuntary: “Lara’s
expert testimony falls far short of this. [Lara] was not
unconscious. [He] was relentless in his effort and
determination. He was thus not entitled to a voluntary act
instruction under A.R.S. § 13-201.” Id.
¶200 The same reasoning applies in this case. Moody’s
alleged dissociative identity disorder, narcissistic personality
disorder, and other brain impairments may bear upon the mens rea
determination, but do not inform the actus reus determination.
See A.R.S. § 13-502(A). As in Lara, no expert testimony here
suggested that Moody’s actions were not performed consciously
and as a result of effort and determination. Of the many
doctors who testified at the various stages of this trial, only
Dr. Lewis opined that Moody “was clearly in a dissociated state”
at the time of the murders, and that it “is not uncommon in
people who dissociate [to] feel as though they’re being
controlled by something else.” (Emphasis added.) Even if the
jury accepted this testimony, Moody’s self-reported feeling of
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not being in control falls short of demonstrating that his
actions were not voluntary. No mental health expert suggested
that Moody was actually being controlled by something or someone
else, which is what Lara requires to demonstrate the lack of a
voluntary act. 183 Ariz. at 235, 902 P.2d at 1339 (requiring “a
knee-jerk reflex driven by the autonomic nervous system”).
¶201 No evidence in this case reasonably supported a
finding of a lack of a voluntary act. Consequently, Moody was
not entitled to a voluntary act instruction and the trial court
did not abuse its discretion in refusing to give one.
O. Refusal to Permit Surrebuttal Argument
¶202 Moody contends that because he bore the burden of
proof on the insanity defense, the trial court should have
allowed him to make a surrebuttal argument and its refusal to do
so constituted “constitutional and prejudicial error.”
Preliminarily, we note that the record is not clear whether
defense counsel ever requested surrebuttal argument: The record
is devoid of any evidence that Moody requested surrebuttal
argument either during discussions about closing argument and
jury instructions or after the prosecution’s rebuttal argument.16
16
The only record cite Moody provides is the following
comment by defense counsel during voir dire that prospective
jurors should be warned that the trial might last a long time:
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Consequently, the argument appears to have been waived.
¶203 Even had Moody preserved this issue for appeal,
however, whether to permit surrebuttal argument is a decision
committed to the discretion of the trial court. See State v.
Jensen, 153 Ariz. 171, 180, 735 P.2d 781, 790 (1987) (upholding
the trial court’s denial of surrebuttal testimony). On appeal,
we will not disturb the court’s rulings absent an abuse of that
discretion. Id. The only authority Moody cites suggesting that
the court abused its discretion is the dissenting opinion in
State v. Zimmerman, 166 Ariz. 325, 331, 802 P.2d 1024, 1030
(App. 1990) (Kleinschmidt, J., dissenting), which suggests that
because the defendant bears the burden of proving an insanity
defense, it should be an abuse of discretion to not allow
surrebuttal.
¶204 We decline to hold that the failure to permit
surrebuttal when there has been no request for it constitutes an
I do not know how many rebuttal witnesses, and the
Court has not yet made any indication whether or not
you’re going to allow a surrebuttal, since we do have
the burden of proof on that issue and certainly also
if we’re going to have surrebuttal argument on the
issue of insanity, that will impact on it.
Moody cites this statement for the proposition that “Counsel
requested surrebuttal on insanity but was denied.” Because we
could find no evidence of a request for surrebuttal or denial of
such a request anywhere in the record, we conclude that any such
request was waived.
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abuse of discretion. We opt not to create a per se rule
requiring surrebuttal argument in all cases in which insanity is
raised as a defense, and reaffirm our previous holdings granting
discretion to the trial judge to determine whether to permit
surrebuttal in a given case. See, e.g., State v. Steelman, 120
Ariz. 301, 319, 585 P.2d 1213, 1231 (1978).
P. Failure to Instruct on Effect of NGBRI Verdict
¶205 Finally, Moody argues that the trial court erred by
refusing to give an instruction that would explain to the jury
that a “not guilty by reason of insanity” (“NGBRI”) verdict
would not result in Moody’s release. Defense counsel twice
requested such an instruction, once while settling jury
instructions and once following the State’s rebuttal argument,
in which the prosecutor urged the jury not to “cut [Moody]
loose.” Both times the court refused to give it, indicating
that before the jurors began deliberating it would give a
general instruction that the jury should not consider the
punishment or consequences to which Moody might be subject if
convicted. Moody contends that the failure to instruct the jury
on the actual effect of an NGBRI verdict violated his rights to
due process and a fair trial.
¶206 The failure to instruct the jury on the consequences
of an NGBRI verdict is not, by itself, error. State v. Doss,
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116 Ariz. 156, 161, 568 P.2d 1054, 1059 (1977) (citing State v.
Jensen, 111 Ariz. 408, 531 P.2d 531 (1975), and State v. Peats,
106 Ariz. 254, 475 P.2d 238 (1970)). Rather, “[t]he decision to
refuse a jury instruction is within the trial court’s
discretion, and this court will not reverse it absent a clear
abuse of that discretion.” Bolton, 182 Ariz. at 309, 896 P.2d
at 849.
¶207 We agree with Moody that an instruction regarding the
effect of an NGBRI verdict might have helped mitigate the effect
of the prosecutor’s statement in closing argument. See supra ¶¶
146-52. This court has previously held, however, that such an
instruction is not required and we noted that the jury’s
understanding of the ramifications of “guilty” and “not guilty”
verdicts is incomplete because “a jury can never know whether a
sentencing judge will give the maximum sentence possible or a
lesser one, or whether he will suspend imposition of sentence
and grant probation.” Jensen, 111 Ariz. at 410, 531 P.2d at
533. We therefore concluded in Jensen that the jurors “had an
obligation of finding the defendant guilty, not guilty or not
guilty by reason of insanity . . . . What happened after their
verdict was not their concern.” Id. Because there was ample
precedent in our case law for the trial court’s decision not to
give the NGBRI instruction, we find no abuse of discretion in
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failing to give the instruction generally.
¶208 Moody also alleges that the failure to give the
instruction immediately after the prosecutor exhorted the jury
not to “cut [Moody] loose” constituted error. The trial court
sustained a defense objection to the statement and instructed
the jury to disregard it. Before deliberations, the court
instructed the jury not to consider or discuss “the possible
punishment or consequences” that would flow from a verdict of
guilt. We presume that jurors follow the court’s instructions.
State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994).
Consequently, we find no reversible error in the failure to give
an NGBRI instruction.
IV. SENTENCING ISSUES
¶209 Moody was sentenced to death under a procedure found
unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002) (“Ring
II”). In Ring II, the United States Supreme Court held that
Arizona’s former capital sentencing scheme violated the
defendant’s Sixth Amendment right to a jury trial. Id. at 609.17
In doing so, the Court held that defendants “are entitled to a
jury determination of any fact on which the legislature
17
The legislature has amended the capital sentencing statute
so that sentencing factors in capital cases are now tried before
juries. See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.
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conditions an increase in their maximum punishment.” Id. at
589. The Court remanded the case for further proceedings
consistent with its decision. Id. at 609.
¶210 Moody’s case was one of several death penalty cases we
consolidated on remand to determine whether Ring II required
reversal or vacatur of the death sentences. State v. Ring, 204
Ariz. 534, 544, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (“Ring III”).
We review the sentence imposed under Arizona’s superseded
capital sentencing statute for harmless error. Id. at 555, ¶
53, 65 P.3d at 936.
¶211 An aggravation/mitigation hearing in Moody’s case was
conducted over the course of three days in December 2001 and
January 2002. In the special verdict, the court found the
following aggravating factors with respect to both murders: (1)
Moody had been convicted of a separate offense for which life
imprisonment was imposable, A.R.S. § 13-703(F)(1) (1993); (2) he
committed the murders in the expectation of pecuniary gain, id.
§ 13-703(F)(5); and (3) he committed the murders in an
especially cruel, heinous or depraved manner, id. § 13-
703(F)(6).
¶212 Moody alleged eleven mitigating circumstances. Of
these, the trial court found four: (1) lack of a criminal
record, (2) good character in his professional life, (3)
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military service, and (4) nonviolent character and lack of prior
violent history. Weighing the four proven mitigating
circumstances against the three aggravating circumstances, the
court found the mitigators “insufficient to call for leniency.”
The court imposed sentences of death for the murders of Michelle
Malone and Patricia Magda.
¶213 In Ring III, we concluded that judicial fact-finding
in the capital sentencing process may constitute harmless error
if we can conclude beyond a reasonable doubt that no reasonable
jury would fail to find the aggravating circumstance. 204 Ariz.
at 555, 565, ¶¶ 53, 102-04, 65 P.3d at 936, 946. We now examine
whether the Ring II error was harmless with respect to the
sentences imposed by the trial judge in Moody’s case.
A. Aggravating Circumstances
1. Prior Convictions
¶214 Arizona Revised Statutes § 13-703(F)(1) lists as an
aggravating circumstance that the “defendant has been convicted
of another offense in the United States for which under Arizona
law a sentence of life imprisonment or death was imposable.” In
this case, the trial court found that the jury’s verdict of
guilt as to Michelle Malone’s murder satisfied this aggravating
factor for the Patricia Magda conviction, and that the jury’s
verdict of guilt as to the Magda murder satisfied the factor for
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the Malone conviction. Moody argues that because the
convictions occurred at the same time, neither of these
convictions can serve as an historical prior conviction for the
other.
¶215 This court has held that the order of the crimes or
convictions themselves is not important. See State v. Lee, 189
Ariz. 590, 604, 944 P.2d 1204, 1218 (1997). The relevant
inquiry is whether the convictions were entered before the
sentencing hearing. Id. Moody’s convictions were entered
before his sentencing hearing. Consequently, there was no error
in allowing each murder to be used as a prior serious offense
with respect to the other murder.
¶216 We have also affirmed the legal conclusion that a
murder conviction is one “for which under Arizona law a sentence
of life imprisonment or death was imposable” without remanding
for a jury finding. State v. Nordstrom, 206 Ariz. 242, 245, ¶
7, 77 P.3d 40, 43 (2003). Moody concedes that this court has
held that the (F)(1) factor falls outside the Ring mandate and
does not require a jury finding. See Ring III, 204 Ariz. at
556, ¶ 55, 65 P.3d at 937; see also State v. Lehr, 205 Ariz.
107, 109, ¶ 6, 67 P.3d 703, 705 (2003). We decline to reexamine
the issue. Moody raises no other basis upon which we might
disturb the trial court’s finding that the (F)(1) aggravating
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factor was proven beyond a reasonable doubt as to both murders.
We therefore affirm this ruling.
2. Pecuniary Gain
¶217 It is a statutory aggravating factor in Arizona that
the defendant “committed the offense as consideration for the
receipt, or in expectation of the receipt, of anything of
pecuniary value.” A.R.S. § 13-703(F)(5). This factor is
satisfied only “if the expectation of pecuniary gain is a
motive, cause, or impetus for the murder and not merely a result
of the murder.” State v. Hyde, 186 Ariz. 252, 280, 921 P.2d
655, 683 (1996). It is not enough merely to show that a
defendant took property or money after a murder occurred. State
v. Wallace, 151 Ariz. 362, 368, 728 P.2d 232, 238 (1986) (citing
State v. Gillies, 135 Ariz. 500, 512, 662 P.2d 1007, 1019
(1983)); see also State v. Armstrong, No. CR-00-0595-AP, 2004 WL
1576636, at *2 n.2, ¶ 7 (Ariz. July 15, 2004) (confirming this
court’s application of the Hyde and Wallace standards). The
(F)(5) inquiry is “highly fact-intensive” and requires the state
to “establish the connection between the murder and motive
through direct or strong circumstantial evidence.” Ring III,
204 Ariz. at 560, ¶ 76, 65 P.3d at 941 (citing State v. Cañez,
202 Ariz. 133, 159, ¶ 94, 42 P.3d 564, 590 (2002)).
¶218 In this case, the trial court found the pecuniary gain
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factor based on three considerations: at the time of the
murders, Moody was suffering “severe financial difficulty”;
Moody entered the Malone and Magda homes “for the purpose of
obtaining property of value”; and the property obtained from
those homes was used “shortly after each of the murders . . . to
obtain cash.”
¶219 In response, Moody notes that these are all questions
of fact that a jury could resolve differently than did the trial
judge. The defense team presented evidence at trial that Moody
was suffering from brain dysfunction, psychosis, and
dissociative identity disorder, and that he was in a
“dissociative state” at the time of the murders. Additionally,
there was substantial evidence at trial that Moody had used
“massive amounts” of cocaine at some time before the murders and
that heavy cocaine use can lead to violent behavior. Finally,
there was evidence that a small television, a microwave,
jewelry, and cocaine were left behind at one of the murder
scenes.
¶220 We will not deem harmless the finding of an (F)(5)
aggravating factor if circumstantial evidence and witness
credibility could be weighed differently by a reasonable jury
than they were by the sentencing judge. State v. Hoskins, 204
Ariz. 572, 574, ¶ 6, 65 P.3d 953, 955 (2003); see also State v.
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Rutledge, 206 Ariz. 172, 175, ¶ 14, 76 P.3d 443, 446 (2003).
That Moody had a pecuniary motive to murder Malone and Magda is
a plausible inference that may be drawn from the circumstantial
evidence, but it is not the only reasonable inference that may
be drawn. Because a reasonable jury could differently assess
the evidence upon which the trial judge based his pecuniary gain
finding, we cannot conclude that the trial court’s finding of
the (F)(5) factor was harmless.
3. Especially Heinous, Cruel, or Depraved
¶221 A murder may also be aggravated if a defendant
“committed the offense in an especially heinous, cruel or
depraved manner.” A.R.S. § 13-703(F)(6). To establish this
factor, the state must prove at least one of these three
components beyond a reasonable doubt. State v. Cropper, 206
Ariz. 153, 156, ¶ 11, 76 P.3d 424, 427 (2003). The trial judge
found that both murders were especially cruel and that both
demonstrated “especial heinousness or depravity.”
a. Especially Cruel
¶222 The trial judge first found that Moody committed both
murders in an especially cruel manner. In State v. Knapp, we
defined “cruel” as “disposed to inflict pain esp. in a wanton,
insensate or vindictive manner: sadistic.” 114 Ariz. 531, 543,
562 P.2d 704, 716 (1977) (quoting Webster’s Third New
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International Dictionary). Physical cruelty exists if “the
victim consciously experienced physical or mental pain prior to
death, and the defendant knew or should have known that
suffering would occur.” State v. Trostle, 191 Ariz. 4, 18, 951
P.2d 869, 883 (1997) (citations omitted).
¶223 As to the Malone murder, the trial judge found
evidence of a defensive wound to her hand, a broken fingernail,
a lost contact lens, blood throughout the house, and Moody’s
admissions to “establish that there was a violent struggle
before Mr. Moody subdued Ms. Malone by tying her into a chair.”
The trial judge also considered the fact that Malone knew Moody
and he knew she could identify him if she survived, that the
evidence suggested she suffered multiple injuries inflicted
before her death, and that she raised her hand in a defensive
gesture to defend against the first bullet. The court concluded
that “Michelle Malone was clearly conscious until at least that
point,” and that “[t]he murder of Michelle Malone was especially
cruel, because she consciously suffered physical pain and mental
anguish for a fairly prolonged period of time, and clearly the
Defendant knew of her suffering.”
¶224 As evidence that Magda suffered pain, the trial judge
found that Moody tied her up with neckties and cords tightly
enough to leave marks on her arms and wrists. Further, because
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Moody went to the bank twice and communicated with Magda both
times after returning, the trial court concluded that Magda must
have been conscious and suffering for some period of time.
Ultimately, the court concluded that “[t]he prolonged ordeal
. . . surely caused her anguish: physical anguish due to the
restraints and her immobility and mental anguish due to the
uncertainty of her fate and the knowledge that the defendant was
aware she could identify him as her attacker if she survived.”18
¶225 Based on these facts, we conclude that no reasonable
jury could find that Malone did not “experience[] physical or
mental pain prior to death.” See Trostle, 191 Ariz. at 18, 951
P.2d at 883. The same could be said for Magda.
¶226 However, Trostle contains an additional requirement:
that “the defendant knew or should have known that suffering
would occur.” Id. Because evidence was presented that Moody
was in a “dissociated state” due to psychosis, drug impairment,
or both, we cannot conclude beyond a reasonable doubt that a
reasonable jury could not find other than the trial court did on
this issue. Consequently, we cannot affirm the trial court’s
18
Because the timing was uncertain regarding the many
puncture wounds on Magda’s body, the court could not say beyond
a reasonable doubt that she was conscious during the infliction
of the wounds and did not consider them in the (F)(6)
examination.
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finding of special cruelty as to either count.
b. Especially Heinous and Depraved
¶227 The trial judge also found that both murders were
especially heinous and depraved. Our case law sets forth five
factors that should be considered in determining heinousness and
depravity: (1) whether the defendant relished the murder, (2)
whether he inflicted gratuitous violence, (3) whether he
needlessly mutilated the bodies, (4) whether the crimes were
senseless, and (5) whether the victims were helpless. State v.
Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983).
¶228 In this case, the trial court based its findings of
heinousness and depravity on the use of gratuitous violence, the
senselessness of the murders, and the helplessness of the
victims. The court found that both murders involved more
violence than was necessary to cause death: four gunshot wounds
and multiple injuries to Malone’s body, and twenty-four blunt
force injuries and nine to fourteen sharp force injuries to
Magda’s body. The trial judge found both murders senseless
because it was not necessary to kill the victims to accomplish
the theft of their property, and he found the victims helpless
because they were bound and restrained.
¶229 Regarding the gratuitous violence finding, in this
case no expert was able to pinpoint exactly which injuries
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caused the death of each victim, and the State never attempted
to establish that Moody knew which shots or blows caused each
death. Consequently, we conclude that a reasonable jury might
arrive at a different conclusion than the trial judge did on
whether the State established that Moody inflicted gratuitous
violence.
¶230 Even if we could conclude that no reasonable jury
could fail to find the senselessness and helplessness factors,
without the gratuitous violence factor the other factors are
substantially less weighty: “Senselessness and helplessness are
less probative of the defendant’s state of mind than are
relishing, gratuitous violence, and mutilation.” Hyde, 186
Ariz. at 281, 921 P.2d at 684. “Therefore, senselessness and
helplessness, without the presence of other factors, are usually
insufficient to establish depravity beyond a reasonable doubt.”
State v. Prince, 206 Ariz. 24, 27, ¶ 10, 75 P.3d 114, 117
(2003).
¶231 As was true regarding the intentionally cruel
component, we cannot affirm an (F)(6) finding based on findings
of intentionally heinous or depraved acts unless we can conclude
that no reasonable jury could arrive at a different conclusion
than the trial judge did. See, e.g., id. at 28, ¶ 12, 75 P.3d
at 118. Ultimately, the cruel, heinous, and depraved aggravator
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depends on the defendant’s state of mind and the assessment of
sometimes conflicting facts. See, e.g., id. at 27, ¶ 9, 75 P.3d
at 117; Cropper, 206 Ariz. at 156, ¶ 11, 76 P.3d at 427
(analyzing cruelty factor). Because Moody’s mental state was
hotly contested throughout trial and sentencing, we cannot
conclude beyond a reasonable doubt that no jury would accept the
defense’s argument that Moody lacked the requisite state of mind
to satisfy this aggravator.
B. Mitigating Factors
¶232 Our harmless error inquiry does not end with an
examination of the aggravating circumstances. Because we can
affirm a capital sentence only if we can conclude beyond a
reasonable doubt “that no rational trier of fact would determine
that the mitigating circumstances were sufficiently substantial
to call for leniency,” we must also consider whether reversible
error occurred with respect to the mitigating circumstances.
Ring III, 204 Ariz. at 565, ¶ 104, 65 P.3d at 946.
¶233 At his sentencing hearing, Moody offered eleven
mitigating circumstances for the court’s consideration. One of
these was statutory — that his “capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law was significantly impaired, but not so
impaired as to constitute a defense to prosecution.” A.R.S. §
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13-703(G)(1). The remainder were non-statutory: his lack of
any prior criminal history, good character for parenting, good
character in his professional life, military service,
psychosocial stressors, cocaine use and addiction, nonviolent
character and lack of prior violent history, correlation between
physical abuse as a child and subsequent substance abuse as an
adult, the inability to appreciate the nature and consequences
of his actions, and a nonviolent, law-abiding character.
¶234 The trial judge found four of the mitigating factors:
lack of criminal record, good character in his professional
life, military service, and lack of prior violent history. He
gave little weight to them, however, and concluded that they
were insufficient to call for leniency.
¶235 Based on the conflicting evidence in this record on
these issues, we cannot conclude beyond a reasonable doubt that
no rational jury would find other than as the trial judge found.
A reasonable jury might have found additional mitigating factors
or weighed differently the mitigating factors that were found.
We also cannot say beyond a reasonable doubt that if a jury had
found additional mitigating circumstances or weighed the
mitigating circumstances differently, it would not have found
them “sufficiently substantial to call for leniency.” A.R.S. §
13-703(E). Therefore, we conclude that the Ring II error was
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not harmless in this case.
V. CONCLUSION
¶236 For the foregoing reasons, we affirm Moody’s
convictions for the first degree murders of Michelle Malone and
Patricia Magda. However, because we cannot find harmless error
in his sentencing procedure, we vacate Moody’s death sentence
and remand this case for jury resentencing pursuant to A.R.S. §§
13-703 and -703.01.
__________________________________
Rebecca White Berch, Justice
CONCURRING:
_____________________________________
Ruth V. McGregor, Vice Chief Justice
_____________________________________
Michael D. Ryan, Justice
_____________________________________
Sheldon H. Weisberg, Judge*
*The Honorable Andrew D. Hurwitz recused himself. Pursuant to
Article 6, Section 3 of the Arizona Constitution, the Honorable
Sheldon H. Weisberg, Chief Judge of the Arizona Court of
Appeals, Division One, was designated to sit in Justice
Hurwitz’s place.
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J O N E S, Chief Justice, concurring in part, dissenting in
part:
¶237 I concur in the judgment of the court both as to
Moody’s convictions and the remand for resentencing. I dissent,
however, from the majority’s conclusion that harmless error
analysis is appropriate where sentencing determinations,
including factual findings on aggravating circumstances, are
made by the trial judge in the absence of the jury. I would
remand the case for resentencing solely on the basis of the
Sixth Amendment violation of the right to trial by jury on
statutory aggravating factors relative to the death penalty.
See State v. Armstrong, _____ Ariz. ____, ¶¶ 25-37, ___ P.3d ___
(2004) (supplemental opinion) (Jones, C.J., concurring in part
and dissenting in part); see also State v. Sansing, 206 Ariz.
232, 241-42, ¶¶ 40-46, 77 P.3d 30, 39-40 (2003) (Jones, C.J.,
dissenting).
__________________________________
Charles E. Jones, Chief Justice
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