State v. Moody

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

- 51 -
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

- 52 -
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

- 77 -
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).

- 78 -
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

- 86 -
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

- 88 -
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

- 93 -
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.

- 95 -
¶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.

- 96 -
¶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).

- 100 -
¶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

- 102 -
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

- 106 -
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.

- 108 -
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

- 110 -
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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