*1 94 P.3d 1119 Arizona, Appellee,

STATE of MOODY, Appellant.

Robert Joe

No. CR-02-0044-AP. Arizona,

Supreme Court of

En Banc.

Aug.

434

knocked on the door. Malone answered and let him in.

¶ Moody Malone into the kitch- followed There, pulled a kitchen knife from his en. he pocket and attacked her. Malone tried coat herself, cutting to defend her hand Moody by process. held Malone the neck office, and forced her into her home where he cash, a check- emptied purse her and took book, credit cards. He ordered and some for Because Malone to write check $500. blood, made that check was smeared with her write another. ¶4 Napolitano, A. Janet Former Arizona At- He then forced Malone back to the General, Goddard,

torney Terry Arizona At- with kitchen and tied her to chair some Cattani, torney General Kent E. Chief telephone ripped that he from the cords had Counsel, Phoenix, Section, Capital Litigation dragged to the wall. He her —still tied Lam, Attorney and Donna J. Assistant Gen- bedroom, chair —into a where he found a .22 eral, Tucson, Arizona, Attorneys for 12-gauge shot- caliber rifle and a Winchester Appellee. her gun in a closet. He hit Malone over gun, with a BB then shot her several head Kettlewell, County A. Pima Susan Public rifle, re-loading times with the .22 caliber Leto, Deputy Defender’s Office Frank P. Malone, shooting shot. After between each Metcalf, Depu- Public Defender and Brian X. Ruger pistol .22 in a found caliber Defender, ty Tucson, Attorneys Public placed pistol chest of drawers and Moody, Appellant. Robert Joe pocket. wrapped then the rifle and shot- He gun in a drove went to blanket and home and OPINION sleep. BERCH, Justice. later, days 5 Five went next door 2001, Appellant 1 In Robert Joe Magda’s they to Patricia home. After talked degree was convicted of two counts of first cigarettes, for a while and smoked a few murder for the deaths of Michelle Malone Magda hallway followed down a Magda. judge and Patricia The trial sen- see a Christmas calendar she had made. pursuant tenced him to death to Arizona floor, Moody pushed her to the bound then (“A.R.S.”) § (Supp. Revised Statutes 13-703 her wrists and ankles with neckties he had 1993). Appeal An automatic Notice kitchen, brought him. In the he found with 31.2(b) pursuant filed to Rule of the Arizona Magda’s purse, from he took cash and which Rules of Criminal Procedure. This court has yanking phone credit cards. After cords 5(3) jurisdiction under Article Section wall, Moody Magda from the returned to § the Arizona Constitution and A.R.S. 13- personal identification number demanded (“PIN”) gave for her bank card. After she number, up, her him a he tied her covered I. FACTS1 rug weighed by putting her down with ¶2 15, 1993, On November Robert a chair on her. ex-girl drove to the home of his friend, Magda’s drove car to a Bank of friend’s Michelle Malone. After as alone, Moody money using certaining that Malone America and tried to withdraw presented reported Moody, appeal, at State v. 192 Ariz. 1. On this court views the facts which ¶¶ 2-6, light We in the trial court "in the most favorable to Dann, reproduce part sustaining because State v. the facts in substantial verdict.” (2003) (citing they necessary disposition are of some of 562 n. 236 n. 1 Gallegos, appeal, adding raised in this others as issues (1994)). Many reprinted necessary complete understanding of new of the facts are case, from the court’s earlier decision in this issues raised. *12 ¶ January get morning, her bank card. When he was unable to 11 The next any money, Magda’s Moody County Orange he returned home went to the Sheriffs again and demanded her PIN number. He Department police and told two uniformed went only back the bank and withdrew officers that he had amnesia and knew $300. home, Magda’s He then returned to slit her that his first name was Bob. The officers throat, back, him, stabbed her and blud- fingerprinted discovery leading to the geoned hedge clippers. her to death with He warrants for the murders of Michelle Malone removed the neckties he had used to bind Magda. and Patricia The officers arrested her, kitchen, wrapped them in a towel in the Moody him that and told he had killed two put luggage and left the house. He his into confused, people. Looking Moody replied, “I Magda’s away. car and drove day, Depart- Tucson Police did?” Later Wright ment Detective Karen and Pima ¶ later, 7 About a month on December County Department Detectives Mi- Sheriffs 1993, Moody through broke and climbed Ying Bryce Tipling chael flew to Califor- Yuma, Arizona kitchen window into the home Moody videotape nia to interview before DeForest, Mary his ex-wife’ssister. After transporting Throughout him to Tucson. demanding guns, Moody cash and tied De- interview, Moody maintained that he woke up, Forest ordered her and her two sons into 4th, January up on a bench on did not know closet, and nailed the door shut. He took was, got how he there or who had no he Suburban, purse DeForest’s and left in her memory p.m. 12:30 of that events before leaving Magda’s car behind. day. Moody was returned to Arizona to then house, leaving Moody After DeForest’s stand trial for the murders of Michelle Ma- eventually Vegas pro- drove to Las before Magda. lone and Patricia ceeding approximately to California. At 3:00 4,1994, January Moody flagged a.m. on down II. PROCEDURAL HISTORY County Deputy Joseph San Bernadino Baker, Duarte California. identi- February pre- On Deputy fied himself to Duarte as “Todd Joe sented evidence of the murders of Michelle and claimed that his car had Williams” been Magda grand jury. Malone and Patricia by a stolen about three hours earlier black hearing, At Tucson Police Detective picked up male hitchhiker he had outside of Wright Logan, Karen testified Carlos Vegas. specific Las asked for infor- When paroled felon who was arrested for driv- vehicle, Moody say mation about the could Suburban, ing Mary had in- DeForest’s gray that it was a blue and Suburban. formed detectives that he had traded cocaine give He was unable to the officer a vehicle owner, for the car with the vehicle’s a white number, number, plate identification license “Bob,” bragged male named who had at the Deputy other information. Duarte killing people time about two Tucson and took Office for further Sheriff’s profiled being on “America’s Most Wanted.” questioning. When was unable to grand jury indicted for the two provide any regarding further information murders. vehicle, he was released. County 13 Pima Public Defender Daniel p.m. that 9 Between 4:00 and 4:30 same appointed represent Moody. Grills was day, Moody appeared at a rescue mission demand, 21, 1995, Moody’s On June at Grills Ana, He told the mission’s Santa California. a motion to withdraw as counsel. filed director, Womack, Reverend James that he Moody waiving right his later filed a motion had no idea who he was or where he was repre- asserting right to counsel and from, although thought his name was Bob. he 13,1995, July the court had sent himself. On him Reverend Womack advised to contact hearing on the motions at which police. represent testified to his desire to himself. later, know- Approximately pa- hours The court found his waiver of counsel two intelligent, voluntary. pro- The case Logan ing, was arrest- roled felon named Carlos himself Angeles Airport for driv- to trial and defended ed outside the Los ceeded participation in solely ground on the that his ing Mary DeForest’s stolen Suburban. involuntary the crimes was egregious because aliens mitted misconduct in first trial. body took control of his him kill and made Alternatively, argues principles that the Magda, Michelle Malone and Patricia render- jeopardy prevented double should have ing Moody a mere unconscious observer of improving State from its case the second *13 the murders. He was convicted on both trial. counts and sentenced to death after an aggravation mitigation and hearing. Jeopardy Bar Double Retrial ¶ appeal, 14 On this court found that ¶ jeopardy 18 Whether double bars right was denied his to counsel and law, question retrial is a which we review reversed his convictions and remanded the Siddle, de novo. State v. 202 Ariz. case Moody, for a new trial. 192 ¶ 7, 1150, 1153(App.2002). 47 P.3d 505, 509, ¶ 24, Ariz. in May was retried 2001. For the ¶ 19 Two months before his second retrial, John appointed repre Seamon was trial, Moody filed a motion to dismiss Moody. sent He filed several motions to preclude case and prosecu retrial because of Moody’s competency. determine After a occurring torial misconduct before and dur trial, hearing on the eve of the court found no ing his first trial. claimed that question Moody’s competency reason to prosecutor committed misconduct in the first trial, confirming stand rulings earlier by providing trial false information to the Moody immediately same effect. announced experts intentionally mental health and inter that he would not attend his trial because it fering relationship attorney. with his with his “illegal.” Consequently, argued, principles he Jury selection in second trial jeopardy double should have barred retrial. began day. trial, the next fifteen-day After a The motion was denied proceed and the case jury again convicted of both mur- ed to trial. again raises this claim on ders. appeal. Following an aggravation/mitigation ¶ Traditionally, this court has extended hearing, judge multiple found the jeopardy protection double prosecu based on conviction, pecuniary gain, especially only torial misconduct cases which the cruel, depraved heinous aggravating fac- defendant moves for mistrial on those applicable tors to both murders. The court grounds. Court, Superior See Pool v. found that the prove any defense failed to 98, 108-09, (1984) 271-72 statutory factors, mitigating prove but did (holding “jeopardy attaches under art. non-statutory four mitigating factors: lack of § 10 of the Arizona Constitution when a mis prior history, criminal good employment his- granted” specified and other condi tory, service, military and non-violent charac- met); tions are Jorgenson, see also State v. ter. But weighing the mitigating factors 390, 392, ¶ 7, against factors, aggravating the three (2000) (extending Pool to cases in which the they court concluded that were insufficient to mistrial motion was meritorious and should leniency call imposed a sentence of granted). have been death for filed no such each homicide. trial, motion in his first and the convictions III. TRIAL ISSUES arising out of that trial were reversed for counsel, deprivation prosecutorial mis Jeopardy A. Double Bar of the Second Moody, conduct. 192 Ariz. at Trial Thus, Moody P.2d at 582. relies ¶ Moody argues the second trial jeopardy protections case which double should have been Jeop- barred the Double applied have been in the absence of a motion ardy Clauses of the United States and Ari- Minnitt, for a mistrial: State v. Const, zona Constitutions. See U.S. amend. 55 P.3d 774 Const, V; 2, § art. 10. He makes two Minnitt, 21 In separate jeopardy First, jeop- we held that arguments. double double argues jeopardy ardy that double should have barred the retrial of a defendant whose prosecutor barred retrial because the procured by com- per- convictions were false and appellate review of a (observing that testimony prosecutor placed jured knowledge may of its pre- with full claim retrial jeopardy before the double before likelihood perjurious embarrassment, character and of the strain, public “personal vent support a conviction. Id. at it would by a expense of a criminal trial” caused ¶¶ 439-40, 37-45, 55 P.3d at 782-83. Our jeop- eventually on double retrial overturned holding expressly case was condi- ardy grounds). prosecution’s concealment of tioned on the a dou- 23 This court has never reviewed misconduct; mis- we reasoned prosecutorial jeopardy claim based on ble have warranted a conduct that case would previ- defendant had not misconduct mistrial had it been discovered. Id. sought ously moved for mistrial or relief ¶ 35, (holding that a mistrial is 55 P.3d at 782 *14 special from the trial court’s denial of action jeopardy prerequisite for a double not a grounds. to dismiss on those his motion prosecutor “engages egregious claim a Moody provides compelling no reasons to require to a mistrial but conduct sufficient diverge practice. from this after manages to conceal his conduct until trial”). Moody mis- does not claim complains offering of which he now conduct Case on Improvement State’s — of grand before the false evidence Retrial relationship with coun- interfering with his filing pretrial 24 In to motion addition concealed as was the conduct sel—was jeopardy grounds, to dismiss based on double Additionally, Minnitt could

Minnitt. while sought preclude to the defense also places in the trial at which mistrial point to any retrial that it offering evidence on from appropriate had the miscon- would have been trial, claiming at the first had not offered overt, Moody made no such duct has been principles prevented jeopardy that double short, first trial. In regarding assertion improving its case on retrial. the State from only Moody fail to move for a mistri- not did trial, presented Moody’s the State At second al, to that a but he has failed demonstrate physical evidence that it did testimonial and appropriate. would ever have been mistrial Additionally, trial. after not offer at the first Consequently, holding our in Minnitt offers relying solely premeditation on at the first refuge requirement no from the trial, felony prosecutorial added murder theories a motion for a mistrial based on the State during preserve misconduct be made now to both murders on retrial. as therefore is appeal. for This issue the issue of this new evi- argues that the admission properly not before us. felony murder and the addition of the dence his con- in the second trial violated theories ¶ 22 in one other Minnitt also differs against jeopar- protection double stitutional important respect: after the trial court de dy. jeopar motion to dismiss on double nied his special action dy grounds, Minnitt filed a ¶25 Moody on the United relies at seeking of that decision. Id. review opinion in Burks v. Supreme Court’s States ¶ 24, at 780. Our courts have held States, 437 U.S. 98 S.Ct. United ap special for action is the petition that “a (1978), proposition that L.Ed.2d 1 for the propriate vehicle for a defendant obtain in a retrial violates use of new evidence interlocutory judicial appellate review of an pro jeopardy federal and state double both v. Su jeopardy claim.” Nalbandian double reading of Burks is flawed. tections. His Court, perior Jeopardy “[t]he Burks states that Double underlying (App.1989). The reasons purpose trial for the forbids a second Clause of preference special for action review opportu affording prosecution another to dismiss based on double denials of motions supply which failed nity to evidence Because the Double jeopardy are obvious: Giving Id. proceeding.” in the first muster right to be Jeopardy guarantees the Clause purpose of’ phrase full “for effect subsequent prosecution, the clause from free only applies to cases makes clear that Burks by the mere commencement is violated insufficiency the evidence. States, reversed Abney v. 431 U.S. retrial. See United cases, cannot be In the state 651, 660-61, id. such 52 L.Ed.2d 651 See 97 S.Ct. (1998), opportunity claiming a second a de- prove allowed L.Ed.2d 728 guilty. Id. fendant fundamentally at use of inconsistent theories right the two trials violates defendant’s ¶26 contrast, Supreme Court process. misplaced, due reliance is that in all has held cases but those reversed however, Thompson pros- because involved evidence, grounds on of insufficient the Dou proceeded conflicting ecutor who theories Jeopardy “imposes ble Clause no limitations separate id. trials co-defendants. See upon power retry whatever defen prose- at That case 1055-57. turned on the dant has in getting who succeeded his first “manipulat[ing] cutor’s actions evidence set conviction aside.” North Carolina witnesses, Pearce, 719-20, argu[ing] mo- 395 U.S. inconsistent 89 S.Ct. (1969), tives, trial], 23 L.Ed.2d 656 on other overruled second [the defendant’s Smith, grounds by Alabama v. 490 U.S. ridicul[ing] theory had essentially 109 S.Ct. 104 L.Ed.2d 865 a conviction used to obtain and death sen- When a case is reversed but reason Thompson’s tence at trial.” Id. at 1057. evidence, original insufficient “the conviction Moody person, is one and the theories wiped has been nullified and ‘the slate necessarily offered are inconsistent. Bullington Missouri, clean.’” 451 U.S. Thompson inapposite. Thus *15 442, 430, 1852, 101 S.Ct. 68 L.Ed.2d 270 ¶ Moody 29 offers no support other for his (1981) Pearce, 721, (quoting 395 U.S. at 89 argument lawfully the State could not 2072). specifically S.Ct. While neither case proceed felony theory on a murder in presentation addresses evi additional Consequently, second trial. we conclude that dence, “wiped it follows that if the is slate judge did not in abuse his discretion clean,” using the state is not limited to evi denying preclude motions to presented at dence the first See Bull trial. proceeding felony State from on murder the- 442, ington, 1852; 451 U.S. at 101 S.Ct. ories at the trial.2 second Pearce, 721, 2072; 395 U.S. at 89 S.Ct. see Florida, also Tibbs v. 457 U.S. 43 n. (1982)

102 72 B. Failure Dismiss the (recog S.Ct. L.Ed.2d 652 Indictment nizing that “[a] second chance for the defen ¶30 argues Moody the trial court inevitably dant ... prosecutor affords the failing erred in to dismiss his indictment well,” try as second and that “new evidence part because it was based on evidence that or understanding advance of the defendant’s State knew should have known was at strategy will make the case even State’s partly grand least At jury hearing, false. during stronger it second trial than was at Tucson Wright Police Detective Karen testi- first”). Logan fied that after Carlos was arrested ¶ Moody’s ease, hand, 27 on was the other driving Mary Suburban, DeForest’s stolen deprivation reversed The suf counsel. police told officers he received the vehi- ficiency of the guilt evidence of was not at cle in a for cocaine trade with a man named ¶ 23, Moody, 192 issue. Ariz. at 968 bragged killing people “Bob” who about two Consequently, 582. P.2d at no we find abuse in Tucson. claims that this evidence discretion the court’s restrict refusal to requests was false and that we his reverse the State evidence it in the first offered false convictions because evidence was used trial. procure indictment. Finally, that the contends did not re Because seek jeopardy principles State violated double by special lief action from the trial court’s felony adding theory murder in the second motion, our scope denial of his on review relying solely trial after premeditated on a appeal limited. is direct is Arizona case law theory murder the first trial. re that, exception, challenges clear one Calderon, with all Thompson v. lies on F.3d (9th Cir.1997) (en banc), grand jury’s findings probable to a rev’d on cause 1055-59 grounds, other by special U.S. must motion S.Ct. be made followed Moreover, any prejudice Moody felony is minimal murder murder and as to each victim premeditated he was because convicted of both his second trial. Logan as himself to trial; identified they not reviewable are action before Murray, Wright also admitted appeal. v. Detective on State “Bob.” exception one That specify Tucson as reports not police did has had “when a defendant to the rule occurs Moody allegedly of the murders the location indictment which trial on an to stand Thus, committing. Detective bragged about per- on partially knew was based government testimony false on grand jury Wright’s testimony.” jured, Gorta- material However, inquiry our does points. these two rez, perjury, To constitute not end there. Basurto, (citing United States to a mate- must relate false sworn statement Cir.1974)). (9th Thus, appeal we on F.2d 781 know of its the witness must rial issue and only to determine the indictment will review 13-2702(A)(1). falsity. § A.R.S. perjured, material based on whether was testimony.3 material if it “could A statement of [a] or outcome affected the course Basurto, ¶32 have Ninth Circuit held In 13-2701(1) (2001). § A.R.S. govern- proceeding.” if the process is violated that due “partially per- at the unchallenged an evidence offered ment bases indictment testimony, perjured testimo- jured overwhelming: when grand jury proceeding material, jeopardy has ny is and when “Tucson” informa- to the “Bob” and addition (emphasis add- 497 F.2d at 785 attached.” tion, grand also heard ed). statement Perjury [a is a “false sworn may pur- have knew Michelle Malone issue, regarding] a material makes witness past; that a from her chased cocaine to be false.” A.R.S. believing statement] [the murder scene the Malone bullet found at 13-2702(A)(1) To determine § Moody’s resi- found at came from a rifle implicated, we review Basurto is whether murder, dence; Moody pawned that after the *16 Wright’s to de- of statements each Detective residence; Malone guns taken from the two perjury. committed termine whether she Mag- to Patricia lived next door that Wright’s first state her; 33 Detective Moody’s wallet was knew da and jury was that Carlos grand to the ment car; Magda’s car was Magda’s found arresting that he re Logan told the officer home; Yuma, Arizona found at DeForest’s in a trade for cocaine. ceived the Suburban Magda’s credit card and Moody used Wright accu that Detective concedes card; ar- Logan was and that Carlos bank grand jury what Lo rately reported to the stolen driving Mary DeForest’s rested Thus, arresting while gan the officer. told Suburban. gave Logan to information that Carlos the false, supports might have been evidence arresting officer 36 Because substantial the grand Wright’s reporting cause, to the false finding probable Detective neither the of exchange Logan and the jury between of that reasonably the have affected statement could Consequently, it not. arresting officer was probable cause. jury’s grand determination fall within perjurious and does not was not Thus, materiality is not requirement of the 784-86, Basurto, 497 F.2d at purview the “Tucson” evidence. the “Bob” and met as to Gortarez, P.2d at 141 Ariz. at by such, Detective these two statements As 1228. they in the sense that although false Wright, re- arresting officer’s appear the do not ¶34 state Regarding her second perjury. Conse- not constitute ports, do pre ment, Wright at a conceded Detective Moody’s a Basurto violation claim of quently, Logan told hearing never that Carlos interviewing officer fails. arresting or the either violation, exception a con- of a Basurto With the Moody argues should reverse his that this court 3. finding proba- precludes of the knowing review prosecution’s viction based on convictions Verive, by grand jury. v. cause made States ble presentation evidence. See United of false 570, 575, (App.1981) Cir.1983) (hold- Mudarris, (9th P.2d F.2d 1182 only exception to the (noting is the "flagrant that Basurto prove mis- ing must that a defendant cannot, by appeal from a that a "defendant challenge an indict- rule prevail to conduct” conviction, claim, however, matters relevant ment). obtain review of We do not address this proceedings”). only grand jury it before trial. failed to raise because alternative, Moody 37 In the argues proper exposure because of the doctor’s his convictions should be reversed because grand jury transcripts. Additionally, prosecutor pro- allowed trials to while did move for a mistrial based on knowing ceed that the indictment was based prosecutor’s use of the doctors’ “tainted” part pre- on false evidence that had been opinions impeach Dr. Goldberg’s testimo- Basurto, grand sented to the jury. Citing ny, that day motion did not come until the prosecutor asserts should have dis- actions, challenged after closed this evidence to the court and to him objection contemporaneous made no upon discovery. See 497 F.2d at 785-86 prosecutor’s Goldberg’s opinions use of Dr. (“Whenever prosecutor any per- learns of during Consequently, Moody the trial. has grand jury, committed before the he is waived this claim as well. See State v. Har- duty immediately under a inform the ris, court____”). However, perjury because no (1988) (The purpose contemporaneous of the committed, prosecutor violated no objection requirement is to allow the court to duty prosecutor under Basurto. While a remedy action; objectionable party cannot must advise the court of false pre- evidence “permit an go error to unrectified and then trial, sented at Sup.Ct. Ariz. R. ER cf. right claim [later] to a mistrial or a new 3.3(a)(3) 1, Moody and 3.8 cmt. has no cited trial.”). Thus, Moody’s challenges we review authority suggesting presentation based on the Logan use the “Carlos evi- testimony grand false on non- dence” for fundamental error. See Bol- requires material issues guilt reversal after ton, 182 Ariz. at proved beyond has been a reasonable doubt Supreme 41 The at trial. Court has that “a held through conviction obtained use of false evi- C. Denial of Fair Trial Use of False dence, by representatives known to be such Evidence State, of the fall must under the Fourteenth Illinois, Napue Amendment.” 360 U.S. asserts that the State denied him S.Ct. 3 L.Ed.2d 1217 a fair trial providing mental health experts The Ninth Circuit transcript with the has removed the grand jury proeeedings knowledge requirement in which Wright Detective from Napue re- peated the Logan equation: false Carlos government “[E]ven evidence. unwit- *17 Moody claims that providing tingly presents evidence, this evidence false a defendant is “tainted” the experts’ mental health opinions a entitled to new trial ‘ifthere is a reasonable by suggesting Moody’s that actions were a probability that [without the evidence] the product addiction, of cocaine not of mental proceeding result of the would have been ” evidence, illness. argues, This he caused the different.’ Young, United States v. 17 F.3d experts mental health any to believe that (9th Cir.1994) (alteration 1201, 1204 in origi- mental illness feigned. was therefore nal) (citation omitted). Moody urges this adopt court to analysis the Ninth Circuit’s ¶ Challenges to the admissibil Young. We need not decide whether to ity of preserved only by evidence can be adopt rule, however, the Ninth Circuit’s be- preclude motion to that by evidence or so, cause even were we to do claim specific, contemporaneous objection to its ad would fail. Bolton, 290, mission. State v. 182 Ariz. 5, (1995). n. 896 P.2d 846 n. 5 Moody 42 Because has waived this claim objection motion or specific must state by failing interpose timely objections to or grounds in preserve order to the issue for limine, file a motion in he must demonstrate appeal. See Briggs, that signifi- error to “contributed] or (1975). 542 P.2d cantly King, the verdict.” affect[ed] State pre filed motion to argument. Dr. testimony, argues clude Potts’ makes no such He but that motion only was on opinions based the late of Dr. that “the State rendered the disclosure Potts’ notes, argument not on an Dr. experts] [the that Potts’ mental health An unreliable.” testimony reports was tainted or im- independent were suggests, review of the record

however, Mincey, Logan evidence that the Carlos State likely impact doctors’ had little or no on the jury’s rejection of assessments or the light 45 In all of Dr. the above—that Moody’s insanity defense. expert at appears only to be the the Morenz ¶43 Drs. Morenz were the Sullivan opinion trial influenced second whose was testify regard- only experts to at trial State evidence, part Logan that by the even Moody’s insanity Dr. ing defense. Sullivan Logan supported only evidence one eleven opined faking that was mental illness that bases the doctor’s conclusion testimony his was malingering, but based malingering, and that the doctor was was experts entirely various other almost on tests to subject to sufficient ex- cross-examination Moody. administered to He was not had pose jury possible to the or flaws in biases Logan regarding cross-examined the Carlos has his reasoning Moody not met bur- his — evidence, Dr. Sullivan did have and while demonstrating that false informa- den of Potts, LaWall, opinions of Drs. access significantly to or tion af- “contribut[ed] provided whom and Morenz —all of had been King, Ariz. at the verdict.” fected] grand jury transcripts Moody offers no — conclude that 244. We therefore that Dr. Sulli- showing citations the record on this issue. there was no fundamental error tran- grand

van ever had access to scripts upon portions of the other relied Findings Competency D. The reports upon that were doctors’ based ¶ Moody that trial court claims de- fact, grand transcripts. before trial adju- process by failing him prived of due argued that reason defense counsel incompetent. argues him dicate He testify asked Dr. Sullivan to was reviewing judge by privately un- Logan erred exposed to that he was not the Carlos portions of the record in determin- the State to “sani- identified information and wanted failing having testify competent, an expert ing the trial who was tize” just exposed competency hearing had not been that information and until be- conduct subject impeachment trial, on applying therefore was not fore commencement of that score. competency, finding wrong standard competent despite him insufficient evidence Morenz, hand, other Dr. finding. Consequently, support such Lo admit the Carlos did considered Sixth, Fifth, Moody urges and Four- arriving opinion gan information in at his rights violated Amendment were teenth malingering. He indicated must be that his convictions reversed. Logan evi on direct examination that he con dence one of eleven factors Evidence 1. Unilateral Examination of reaching his conclusions. Defense sidered subjected vigor Dr. then Morenz to counsel ¶47 Moody alleges that *18 exposed ous cross-examination the competency the judge’s review of record on jury that some of the information the competency impermissible an de constituted jury transcript was and also ex grand false However, record contains termination. any Dr. Morenz posed possible prejudice object counsel ever no evidence that defense reading developed have from might judge’s the record on to the trial review of ed jury transcript meeting with grand before Consequently, has competency. cross- Moody. has observed that This court only this claim and review waived expert’s an conclusions place examination can Bolton, Ariz. at See 182 fundamental error. jury appropriately help in context and 297, 896 P.2d at 837. Schackart, weigh testimony. v. 175 State ¶ Moreover, Moody appears to (“If 48 (1993) 494, 639, 502, Ariz. P.2d 647 858 Rule misperceive record. Arizona challenge the manner the defense wishes 11.5(a) v. and State Bli Criminal Procedure a examination has been con in which mental 503, 1058, er, 501, 557 P.2d 1060 conclusions, 113 Ariz. ducted, this can expert’s or an (1976), hearing require competency during done on cross-examination or be witness.”); guarantee the open parties testimony see also be of its own

443 right present. proffered gave of the defendant to be A evidence him no reason to however, competency hearing required, is question Moody’s competency, which had the court determines that reason- “[i]f previously interpre- been determined. This grounds for an able examination exist.” supported by tation is the fact that the trial 11.3(a); P. R.Crim. accord v. State judge expressly Moody compe- never “found” Steelman, 301, 315, 1213, 120 Ariz. 585 P.2d tent, required as be full would after a Rule (1978); Vote, 179, State v. De 87 Ariz. competency hearing. 11.5 See Ariz. R.Crim. (1960); Reid, State v. 11.5(a). finally presented P. When with evi- 123, 126, 87 Ariz. possibly dence that could lead to reasonable determining grounds whether reasonable grounds question Moody’s competency, exist, factors, judge may rely, among a other judge hearing scheduled to determine on his own observations of the defendant’s grounds whether such existed.4 We find no ability demeanor and questions. to answer conduct, judge’s error in the trial and cer- 278, 286, Harding, See State v. tainly none that constitutes “error of such (1983) P.2d (upholding a trial court’s possi- dimensions that it cannot it be said is determination that a compe- defendant was ble for defendant to have had a fair [the] right tent to waive his to counsel based on Smith, trial.” v. 114 Ariz. psychiatric reports and the trial court’s own (1977).5 P.2d observations). Further, if a defendant has already adjudicated competent, been permitted rely court must be on the rec- 2. Application Wrong Standard supporting previous adjudication. ord ¶ Moody judge claims that the trial Contreras, 358, 360-61, applied wrong adjudicating standard in (1975) 19-20 (holding that before him competent to stand trial. He *19 and he the doctor each time February with and examinations of in Goldberg opined he was visited. Dr. never that 1, 2001, 2001. On March the trial indicat- court incompetent to stand trial and the Goldberg’s report ed that Dr. raised "concerns judge trial did not find him to be so. [Moody’s competence] about that we should re- Consequently, solve before trial.’’ the court held hearing 5. Because we conclude that the before 7, 2001, hearing May Moody, a counsel, on with defense "competency hearing” trial was not a but rather prosecutor present. and the Dr. hearing a to determine whether there were rea- Goldberg, only expert testify to at the hear- grounds require competency sonable a to hear- ing, explained his conclusion that ing, waiting we find no error in the trial court “unreliable and inconsistent in his abilities” to hearing. until eve of trial to conduct such a counsel, complete assist but that he was able to

444 ¶ Evidence argument from the same 51 This suffers Insufficient misunderstanding Moody’s pre- that doomed ¶ Moody that there was asserts claim, distinguish namely, the failure to vious finding a of support insufficient evidence a determination of whether reason- between Specifically, in he competency this case. justify competency a grounds able exist no evidence claims that there was reasonable findings following an actual com- hearing assisting counsel. As capable that he was statement was petency hearing. The cited result, requires argues, a the case law for a response made in motion Pate v. that his convictions be reversed. See Thus, clearly hearing. it was Rule 11 Robinson, 383 U.S. 86 S.Ct. grounds, not an ad- statement of reasonable (1966); Dusky, at 402- 362 U.S. L.Ed.2d 815 judication competency. 788; Bishop, Ariz. v. 80 S.Ct. State this statement did not 52 Because (1989). 103, 781 P.2d 581 adjudication competency, resolve an upset a trial court’s 55 We will competency stan incomplete rendition of the a criminal defendant’s com determination of require reversal. dard does not itself Rather, of discretion.” inquiry petency only the critical is whether for an “abuse actually the correct stan applied Silvas, trial court Ariz. State determining grounds dard in reasonable Reid, Ariz. at (citing competency call hear did not exist to for 731). P.2d at See, Borbon, ing. e.g., ¶56 Procedure Arizona Rule Criminal “Reasonable tried, person shall not be “[a] 11.1 states that grounds exist if there is sufficient evidence convicted, public punished for a sentenced or the defendant is not able to indicate while, of a mental ... as a result offense proceedings the nature of the understand illness, defect, disability, person is or in his against him and to assist defense.” against proceedings unable to understand Salazar, in his or her own him or her or to assist 1093, 1094 illness, 11.1 “mental defense.” Rule defines presume that a court aware 53 We neu- disability” psychiatric as “a or defect or correctly in applies the relevant law that is evidenced behav- rological disorder Medrano, 185 arriving rulings. at its See However, the symptoms.” ioral or emotional Ariz. at 914 P.2d at 229. After review- illness, defect, or presence mere of mental Goldberg stating Dr. ing report from grounds finding a defen- disability “is not reliably and consis- Moody was “unable to incompetent to stand trial.” dant (em- tently time” assist his counsel this Rather, compe- P. 11.1. the test R.Crim. judge trial “con- phasis original), tency that mental illness or defect is whether point having concerns at this some fessed] to un- “unable renders a criminal defendant competence.” Because record on about the against him her proceedings derstand the on Goldberg’s report was focused Dr. Id. in his or her own defense.” or to assist consistently Moody’s inability to assist coun- sel, compe- judge’s the trial concerns about trial, Immediately before the second that he tency reading report show after healing at which Dr. the court held light of the relevant standard. was aware Moody’s difficulties Goldberg about testified record, that the presumption and the of this hearing, Following that assisting counsel. judge proper is aware of the standard trial ruling that an earlier judge affirmed agree with competency, we cannot on Moody’s com- question grounds no he had lone the trial court’s Moody’s argument that trial. asserts petency to stand denying a motion for a Rule statement this was error. See id. hearing reversible error. constitutes court, is no evidence before 58 There argument (rejecting a defendant’s however, dis- judge trial abused his that the inappropri- judge based his decision trial Moody competent to stand finding cretion considerations, finding that the remain- ate or, failing conversely, in to find court was showed that the *20 der of the record to trial. In addition incompetent to stand correctly applied the relevant of and aware attorneys Moody’s own law). of one of the avowal

445 public contacting Moody competent that in fact and After was ed defender. observations, judge’s judge however, own the trial also denied prosecutor, detectives Potts, opinions Drs. had before him the of Moody request. complied then with the his LaWall, Sullivan, Geffen, Morenz, all and blood, gave samples and of hair and warrant that, despite personality whom indicated his fingerprinted photographed, was and and disorders, Moody likely malingering handwriting gave sample. his sec- Before faking capable mental illness and was of as- trial, Moody suppress moved to ond sisting Goldberg defense counsel. Dr. court that motion evidence. The tidal denied only expert May who testified at the presented and the State the evidence tidal. hearing, 2001 and even he testified ¶ for 62 As relief the asserted viola Moody in was “unreliable and inconsistent Moody rights, tion of his claims that the trial his abilities” to assist In- defense counsel. suppressed court should this evidence. consistency assisting may have counsel fall so, to inability ruling short of do set a trial court’s on a motion the standard We review Moreover, judge forth Rule 11.1. suppress to for an of discre evidence abuse might testimony Dr. Goldberg’s have found discretionary issue, tion it involves see less credible than of the other doctors. Prion, 160, 14, 52 State Consequently, showing, without further (2002), P.3d but review constitution judge we cannot conclude that novo, legal purely al issues and issues de see failing Moody abused his find discretion to Davolt, 191, 201, ¶ 21, State Silvas, incompetent stand trial. See (analyzing Fourth and Ariz. at P.2d at 722 (applying abuse issues). Fifth Amendment standard). of discretion ¶ Moody’s suppress pretrial motion to was based on Arizona Rule of Pro- Criminal Right E. Violation of to Counsel 15.2(a), guarantees a cedure which criminal ¶59 Moody next argues that evidence right present defendant the have counsel right obtained violation of his to counsel during taking physical evidence. insanity was used to undermine his defense rely appeal, does on on Rule 15.2 and influence the court’s determination of however, analyze and we therefore do not his mental competence. Moody raises two claim. arising alleged claims from this violation of first, rights: his that the violated State his Instead, appeal, Moody upon relies right ignored to counsel when it his re- arguments two additional raised but not attorney quest taking for an before hand- upon right ruled a Sixth below: Amendment writing, blood, fingerprint, hair and sam- present general right to have counsel and a and, second, ples; intruded to “access” counsel derived from a line of attorney-client into the relationship by (“DUI”) driving under the influence cases making derogatory comments about counsel 6.1(a) based on Rule of the Arizona Rules of eavesdropping and on a telephone conversa- Criminal Procedure. attorney. tion between and his issue, On the first federal Physical Evidence right no ease law is clear had physical present taking have counsel at the by refusing contends that right request honor his evidence. The Sixth Amendment counsel after he was physical stages served with the search to “all warrant counsel extends critical characteristics, Tovar, right State violated process.” criminal Iowa v. 541 U.S. counsel. 77, -, 158 L.Ed.2d S.Ct. ' taking of non-testimonial Shortly after was extradited to evidence, however, physical is not critical Arizona, Wright Tucson Detective Karen See, stage proceedings. e.g., of the Gilbert v. County Ying Pima Detective Michael served California, 388 U.S. 87 S.Ct. seeking “physical him with a search warrant (1967) (holding taking blood, 18 L.Ed.2d 1178 characteristics,” hair, finger- such as sample a “critical handwriting is not prints, handwriting samples. in- request- stage” no States v. attorney proceedings); dicated that he had United *21 446 Cir.1971) (9th counsel,

Jackson, right is 963, of to there no rea- 448 F.2d 971 violation taking (holding fingerprints that of hair keep jury. from the son to that evidence pro- samples stage” is not a of the Williams, “critical Nix v. 467 U.S. 104 S.Ct. Wade, ceedings); United 388 States (1984). 2501, For suppres- 81 L.Ed.2d 377 cf. 227-28, 1926, 218, 87 18 L.Ed.2d U.S. S.Ct. a appropriate, to be there must be nexus sion finger- (stating analysis of 1149 that the and the between violation evidence blood, stage hair prints, is not a critical (stating exclusionary Id. the seized. that his because “there is minimal risk that coun- requires suppression of rule the evidence derogate stages might sel’s at such absence gained government as a result aof violation trial”). Consequent- right to a fair from his case, rights).6 In of a defendant’s ly, right Moody had no have the evidence pursuant physical seized the evidence was his suppressed on the denial of Sixth based warrant, samples would have a valid and the rights. Amendment or not an been collected whether had Second, Moody argues 66 speak attorney. opportunity to an Con- with refusing request speak custodial with alleged vio- sequently, nexus between physical taking counsel before absent; lation and the seized is evidence evidence, rule- with his State interfered therefore, policies underlying the exclu- “right of access to counsel” based suppression sionary require rule not of would sup should have been the evidence therefore evidence. this 6.1(a) pressed. Rules Rule of the Arizona ¶ Moody a line of cases 68 relies on based provides de Criminal Procedure a criminal Rules of Criminal on Rule 6.1 of the Arizona right private fendant with to “consult proposition defen- Procedure attorney an ... as as feasible after with soon right has the to confer with counsel dant [being] custody.” into This court taken has taking physical a test for evidence. before that, custody, regarding suspect in stated cases, however, Those all involve and are may deny right to consult with the state attorney “only of that to the seizure of evidence intoxi- an when the exercise limited investigation.” See, ongoing Kunzler, an right e.g., will hinder cation. at 568- Court, County Superior v. Pima 154 669-71; Holland, Kunzler 70, 744 P.2d at 147 744 Ariz. P.2d 670 Al (1985); McNutt, Ariz. 133 P.2d though has shown that counsel the State 122; State v. Ariz. at 648 P.2d at Rosen- investigation in would have hindered the this (App.2000). gren, 199 P.3d case, an attor assigned had not been reviewing Only in court these cases has the ney the warrant was served. This when charges against either dismissed the the de- stated the defendant “[i]f court has also suppression non-testi- fendant affirmed attorney, indigent is and cannot an afford the monial, physical as a evidence sanction appointed not wait is state need until one rights the state’s violation of defendant’s continuing procedures.” its detention before 6.1(a). under Rule Court, Superior n. McNutt These addressed violations of cases 122, 125 n. The taking impaired 6.1 in the drivers. Rule context clearly fingerprint would evidence Kunzler, 568, 744 at 154 Ariz. at P.2d See qualify exception for detention under 669(DUI); Holland, Ariz. at procedures. McNutt, 593(DUI); at 133 Ariz. at Even were if this court 123(DUI); Rosengren, at Moody’s right coun conclude that to consult (manslaughter). 14 P.3d at Such 6.1(a) violated as to sel under Rule jus- unique concerns that investigations raise evidence, however, Moody fails to dem other tify exemption general from rule: required. suppression onstrate that would be investigation, it is crucial for D[U]I In a jurisprudence is clear evi Federal gather despite the state and the defendant dence could have been obtained both connection between exclusionary directly dant must demonstrate some federal rule is not dealing 6.1(a) applicable with rule- because are and the evidence seized a Rule violation right counsel rather than constitution- based suppression required. before However, al claim. we believe defen- *22 in appropriate in be this case. pression evidence relevant to intoxication close would com- allegedly time to when the defendant that He therefore has not shown Otherwise, any alcohol mitted the crime. denying court its discretion in his abused may in that have the have been blood will suppress physical motion the evidence. to decomposed the test- before blood can be ed. Attorney-Client 2. Intrusion into the Re- McNutt, at at 10 n. lationship McNutt, suggested n. 2. As the court DUI ¶71 Moody claims that the State inter- investigations unique eva- are because of the relationship fered in his with counsel two nescent blood- nature of and breath-alcohol ways during begin- at span two-month the Thus, evidence. See id. these cases DUI Moody’s early ning of detainment 1994. required establish the nexus the between remedy: may violation and Denial of counsel 72 In February of a Pima deprive a of an to opportunity defendant County derogatory corrections officer made exculpatory obtain evidence and therefore Moody’s attorney, about statements first justifies suppression of evidence. Id. at brought Daniel When Grills this to Grills. 648 P.2d at 125. attention, Judge the court’s Hantman or ¶ Moody’s case the differs in that Department dered Sheriffs to avoid con physical evidence taken from him not was Moody legal concerning tact with matters. subject disappearing dissipating to as is The contends that error State this was breath- or blood-alcohol evidence. The offi Moody, by State remedied our decision in sought cers made it that clear the warrant P.2d 578 We only they non-testimonial evidence and that how, Moody agree. explain has failed to if at asking Moody any would not questions be all, any prejudice stemming from this inci regarding taking the murders while the evi dent survived the reversal affected him Additionally, dence. because the evidence Consequently, only on retrial. address we warrant,7 pursuant was to seized a valid it is Moody’s claim. second unlikely attorney that an advise would ¶73 later, April Two months Moody defy the warrant and refuse County Pima Corrections Officer Alan Chaf- reasons, submit to the search.8 For those fey, previously who had been instructed agree with those courts that that have held supervisor eye “keep his an on Mr. necessity for counsel was minimized. Nix, E.g., 446-47, Moody” report any at observations he 2501. U.S. S.Ct. 6.1(a) interesting, Consequently, requires found overheard make a even Rule phone attorney that a defendant call to his in which opportunity be afforded the to contact legal counsel before of a discussed his idea for a that he administration defense characteristics, physical search warrant had about ... in two Officer “read books.” why sup- Chaffey has failed Moody’s demonstrate then searched cell and dis- Rosengren, 7. claims search warrant cites at taking physical authorized the of not was evidence arguing P.3d at that "the cannot "completely invalid because it recorded bypass requirement by using a of counsel required by disagree. Although as We statute.” Moody accurately Rosengren’s warrant." cites transcript support- of the recorded affidavit But, holding. misplaced. his reliance on it is ing recording the warrant cut off shows Rosengren, requested attorney the defendant an warrant, authorizing the court's order police sought twice a search war- before officers oath, tape contains the affiant her detective’s ¶¶ at 306. rant. Id. Conse- case, description facts of the the substan- quently, was clear that the officers that case crime, linking Moody tial evidence sought prevent a warrant to defendant from name, complete physical list of exercising right In the contact counsel. requested. governing evidence telephonic Arizona’s statute case, Moody request did current counsel un- warrants, 13-3914(C) § search A.R.S. Thus, (1989), til he confronted with the warrant. requires that the affiant’s statement Rosengren's clearly grounds rights were facts that establish the for the war- while counsel sug- rant be recorded. cites no case law to obtain a subverted state’s decision war- gesting § insufficient under 13— rant, no claim can be made here. such 3914(C) recording and we no defect in find the warrant. Moody waived in the confi- books alien abduction: his interest covered two about Breakthrough, and The Com- dentiality Communion telephone call and munion Continues. officer in a corrections did not interfere con- *23 attorney-client relationship. The retrial, Moody 74 Before moved to dis- fidential Chaffey showed that was evidence Officer him, charges against alleging miss the that feet sitting approximately fifteen from intentionally in the at- the State interfered conversation; torney-client Moody during trial the that relationship. The court that motion without elaboration. denied officer but made knew the was there no Contending that prosecutor the took deliber- attempt protect of his conver- to the contents attorney-client “penetrate actions to the ate turning back, by speaking softly, sation his destroy relationship and privilege counsel’s mouth; covering his and that or Officer client,” Moody claims that the with his now closely Chaffey did not to listen or have denying erred in the motion and trial court saying. eavesdrop to hear what was his asks us to vacate convictions and dismiss ¶ Although binding 79 not on our resolu charges against him. confidentiality our requirements, tion of case ruling 75 review a trial on a We court’s evidentiary privilege law on is instructive. motion to dismiss an abuse discretion. suggest who knows The cases that one that Hansen, 291, 294, v. 156 Ariz. State may his conversation be overheard and Pickett, 951, (citing 954 State v. 121 safeguard against no effort to inter makes (1978)). 16, 19 589 Ariz. P.2d may ception confidentiality. waive a claim of ¶76 The Amendment to Sixth 161, 168-69, Territory, In De Leon v. 9 Ariz. 2, Article the United States Constitution and 348, (1905), P. 351 Arizona’s landmark 80 guar 24 of the Section Arizona Constitution that privilege, court held case on this right to assis antee a criminal defendant the spousal defendant waived his communications “pro right counsel. includes tance of This his privilege when he a letter to wife wrote by against improper intrusions tection jail knowing jailers open from that the would prosecutor government agents or other into Summerlin, v. Similarly, the letter. in State a defen relationship the confidential between 434-35, Ariz. P.2d 138 675 694-95 Warner, attorney,” his dant and (1983), spousal we held that the communica P.2d We privilege tion was waived because defen recognize representation that “effective knowing police his that spoke dant wife possible right not without the of defendant listening hear officers could him and were private ... Hol to confer with counsel.” recently appeals him. And court of held land, 594; 147 Ariz. at 711 P.2d at see presence person of a third will “[t]he 6.1(a). P. also Ariz. R.Crim. usually [attorney-client] privilege defeat The defendant bears initial confidentiality could ground not to establish an in the burden interference respect be intended with to communications attorney-client relationship. Once he does speaker knowingly allowed to be so, demonstrat the state bears the burden of foreign to the confiden overheard others ing prejudiced that the defendant was not Sucharew, relationship.” tial and the court the interference must convince ¶22, 11, (App.2003) beyond a reasonable that the defen doubt Udall, al., Morris K. et Law Evi (quoting Warner, a fair dant received trial. (3d. ed.1991)) (alteration § at dence 128, 722 P.2d at distinctions ex original). While some factual part of Addressing the first ist, know suggests this case law equation, the correction claims privacy in the con ingly waived his interest on his con eavesdropping officer’s actions of the conversation. tent relationship interfered versation with his ¶ Although privileged eavesdropping on however, inquiry, with counsel. relevant opening materials in privileged calls interfered with “the is whether state attorney-client relationship, into the trude a defen relationship between confidential dant and 371, 376-78, Pecard, see State attorney.” his Id. at ¶¶ added). 26-37, (App.1999) argues 458-60 (emphasis The State at 295 Qualification (finding attorney-client Jury an intrusion into the F. Death relationship telephone where defendant’s ¶ Moody argues that he denied an recorded, attorney with his calls his were impartial representative jury by the attorney his privileged mail and from qualify” ju- decision “death court’s opened, privileged product work docu- is, they rors —that to ascertain whether had cell), ments taken from were the facts any feelings penalty about death nearly are case so extreme. ability have would interfered with their surreptitious There eavesdropping, was no errors, alleges follow law. two recording, reporting of communications or First, general specific. one and one he ar- any- readily apparent affect that were not *24 gues qualification” that “death is unconstitu- vicinity. in one who had been Second, tional and should be disallowed. ¶81 Although the trial court’s of denial alleges judge’s that the trial of four removal specif- motion to included dismiss no panel individual members for was an cause findings, presume ic we that the court was right abuse of discretion and violated his to a applied aware of the relevant and law representative jury. correctly arriving ruling, in at its see v. State Medrano, 192, 196, 225, ¶ Ariz. 185 914 P.2d issue, Moody 84 first On the con (1996), 229 and we can affirm the on ruling consistently upheld cedes that this court has any supported by basis the record. See qualification. Montaño, E.g., death State v. Robinson, 191, 199, State v. 153 Ariz. 735 ¶ 413, 422, 36, 61, (2003) 204 Ariz. 65 70 P.3d 801, evidentiary P.2d (reviewing 809 Hoskins, 127, (citing v. State 199 Ariz. 141- rulings). us, on Based the evidence before ¶ 50, 997, 42, (2000)); 14 P.3d 1011-12 see we find no abuse of discretion. The trial ¶ Jones, 302, also 4 judge may have found the corrections offi- (2000); Kayer, P.3d 357 194 credible, testimony cer’s a determination to 423, 431, ¶ 22, Ariz. 39 which we would defer. Hughes, See State v. holdings. He asks us to reconsider these 391, 393, Ariz.App. 13 266-67 duly noted, Moody’s arguments While are (1970) (deferring to the trial court’s credibili- reprises arguments mere of court evaluation). ty On the of that basis testimo- Hoskins, previously rejected. has See ny, may reasonably trial court have con- ¶ 141-42, 49, Ariz. at at 1011-12. cluded confidentiality waived the light § of the to amendment A.R.S. 13-703.01 of the attorney by communication with his (Supp.2003) permits jury that now sentenc making safeguard no effort to of the content ing, holdings we decline to revisit our earlier Thus, his conversation. cannot we conclude constitutionality of qualification death that the trial court its abused discretion juries. denying this motion to dismiss. ¶ Moody’s second claim chal ¶82 we Because there no conclude was lenges jurors the removal of four based on attorney-client relationship, intrusion into the personal opposition penal their to the death we need not address whether was ty. Moody object contemporaneously did not any prejudiced by Similarly, intrusion. we any removal for cause these how, all, need not address at jurors. lodge While defense counsel did prejudiced by prosecution Of- forwarding general objection qualification to death be report Chaffey’s ficer to the mental health passing panel, fore we that “a experts. Chaffey have held discovered the books dur- objection general penalty question to death ing a investigation Moody’s routine cell. ing objection as an pre does serve telephone The overheard conversation is nec- essary appeal serve on direct the issue of whether give context to the books sufficient jurors improperly discovery to raise a claim that individual were dismissed inculpated attorney-client penalty for cause because their relationship. death Conse- ¶ Montaño, 422, 37, quently, our conclusion that the trial views.” at court Kayer, finding (quoting did not err in P.3d at 70 194 Ariz. at waived 40). confidentiality P.2d interest resolves this issue as at Because defense coun object well. sel failed individual dismissal any juror than excused jurors question, for much less substantial review id. 422- fundamental error. See cause in this 204 Ariz. at ease. See ¶¶ 38-39, urges P.3d at 70-71. error is “error of 86 Fundamental standard, arguing apply us to a much stricter it is that it cannot be said such dimensions application applied of the standard we a fair possible for a defendant have had Anderson, 320, 11, at at P.3d Smith, trial.” State may (suggesting judge that a remove There no such juror “unequivocally ex- juror only if the error here. inability to follow the law presses] an case, judge 87 In this asked instructions”). judge’s As the State not be jury pool any member “would whether notes, however, urzique Anderson involved juror” impartial a fair able to serve as in which the trial eozzrt adminis- situation penalty. light of his or her view on death jzzry re- questionnaire tered written who eight individuals indicated Of by coun- follow-up questioning fused to allow ability personal might their views affect their held, Id. 4 P.3d at 374. We sel. impartial, four removed to be fair and were situation, judge may base dis- in that questioning un- and several after extensive *25 jzzrors they of how answer solely missal on rehabilitation, attempts and one successful only if an- jury questionnaires their their immediately indicat- juror upon removed unequivocal expression of an an swers reveal ing support capital punishment. his fervent of inability Id. case jurors to follow the law. This that potential The two who indicated equivoca- they feelings any their and be Anderson could set aside differs from because panel, were impartial challenged jurors remained on the but expressed by tion the jury. ultimately be selected to on the very product to appears this case be the strong personal juror who feel- The final had a its ab- questioning, not result of extensive eventually ings penalty about the death sence. exposed been to excused because she had murders and had a news accounts the ¶ Reviewing the record for funda 90 professional association with one of error, agree the that mental we with State lawyers. defense only the ‘extreme’ judge “the trial excused panel members of the on both sides ¶ The held Supreme 88 Court has penalty question.” There was no error death potential jurors may not be for that removed here, certainly “of such dimensions and none they general “simply cause because voiced possible it is for cannot be said objections penalty.” the to death Wither Smith, fair trial.” to have had a Illinois, 522-23, defendant 510, 88 spoon v. 391 U.S. 420, (1968). However, 561 P.2d at 744. Conse 114 Ariz. at 1770, 20 776 S.Ct. L.Ed.2d question jurors quently, fail to that the trial court judge permitted to we find opinions penal excusing regarding by their on the death error coznmitted fundamental see, Anderson, v. ty, e.g., State 197 jzzrors their potential fozzr because these (2000), ¶¶ 7-10, 318-19, 4 373-74 P.3d might penalty on have affect views the death and, rehabilitation, may z*e- attempting after impartial ability to as fair and ed their serve jzzror jzzry pool the potential move a from jurors. may juror’s personal “prevent views substantially impair performance [the Proposed Dire Ask Failure to Voir G. Witt, Wainwright 469 jzzror’s] v. duties.” Questions 841 L.Ed.2d U.S. S.Ct. Texas, that, 448 U.S. (quoting Adams Moody argues despite assur- (1980)). 45, 100 65 L.Ed.2d 581 S.Ct. permitted to parties be ances that the would judge to trial Deference is to be accorded first jzzry questionnaires, the trial eozzrt use jzuor’s with proved not be and bias need then questionnaiz-e his and refused to use 424-25, 105 clarity. Id. at unznistakable ju- adequately question prospective to failed 844. S.Ct. pro- in the questions on covered rors during juzy selection Montano, questionnaire posed upheld for-cause 89 In deprived process. He claims these errors jzzror equivocations were of a whose dismissal rights process grounds him of to his due and a fair established on this reversal jury. impartial point. individually. each We address claim Adequately Question 2. Failure to Pro- Questionnaire to spective Failure Administer Jurors ¶ Moody claims that the trial ¶ Moody argues also court refusing erred both administer judge’s questionnaire refusal use the proposed jury questionnaire giv ques resulted in failure to ask several ing factually doing incorrect reason so. necessary impartial tions ensure a fair and point, On the first we note that there is no jury. To succeed on a claim the court right questionnaires jury use Arizona. question jury failed adequately panel, 18.5(d) Rule of Arizona’s of Criminal Rules must demonstrate not Procedure commands the court to conduct a inadequate, voir dire examination was but “thorough ju oral examination prospective that, inadequate ques also as a result of the and, upon request requires rors” of party, fair, tioning, selected was not unbi “permit party the court to a reasonable ased, Walden, impartial. See 183 Ariz. at time to conduct further oral examination of 607, 905 986. He P.2d at does not meet this jurors.” prospective Nothing in the lan burden. 18.5, however, guage of right Rule creates a ¶ Moody’s brief does set forth several questionnaires. use See State v. Da groups questions from questionnaire volt, 191, 207, 52, P.3d specifically explored he asserts were not (2004); Cañez, jurors’ experience voir dire: with dissocia- ¶ 37, (2002). Rather, wheth *26 disorder, cocaine, identity tive the of effects permit jury er to use of questionnaires the is credibility and police the of officers. He a decision committed to the sound discretion general concedes that the trial court asked Cañez, 148, 37, of the court. 202 Ariz. at 42 questions covering each of these areas with P.3d at 579. “We will not disturb the trial much asking, example, broader for court’s of jury selection in the absence of strokes — jurors’ illness, about experiences with mental jury a a showing impartial that of fair and alcohol, drugs and and law jurors Walden, enforcement. He was not chosen.” 183 Ariz. at however, urges, questions go that the did not Tison, 905 at 986 (quoting P.2d v. State 546, 551, (1981)). enough. far 129 Ariz. 633 P.2d 360 Moody fails to show either an abuse of dis ¶ Moody’s 97 nearly claims are identical to jury cretion or that the selected was not fair Walden, rejected the ones this court in 183 impartial. and case, Ariz. at P.2d at 905 987. In that a ¶ Moody’s argument second regarding jury questionnaire defendant was not whose questionnaire is that trial “the court’s many used at “although trial claimed that of for rejecting ques stated reason written questions adequately by his were covered i.e., factually incorrect, tions was that it nev court, other and appropriate relevant ones give er a questionnaire.” intended to written were not.” We found in Id. no error Wal- 281, 297, v. Chapple, He cites State attempt den’s case because he made to “no (1983), support of in any particular ques- show how the absence of however, arguments. Chappie, In we con subject tion or questioning of resulted a gave cluded not that the trial judge “factu biased or rendered his trial fundamen- ally precluding incorrect reason” for an ex Rather, tally “only unfair.” Id. he made witness, pert rather he came to an but general question claim each was neces- legal Chappie incorrect conclusion. Id. sary juror to uncover bias.” Id. The same is provides support

therefore no true here. does not show how the position, legal and makes no other any questions in a absence resulted argument support of his contention. impartial. that was not fair and Moreover, Moody does not where in show Ultimately, judge record the trial that he even had stated would give questionnaire. sum, Moody specific provided argument has not a more this

point, judge’s invitation counsel to statement for fundamental error. See trial questions mitigates any Bolton, 290, 297, follow-up ask defi P.2d ciency in questioning. the court’s This court (1995); King, see also State v. consistently upheld has trial refusals courts’ (1988) (de- 239, 244 Ariz. were jury questionnaires to use when counsel error). reviewing fining and for fundamental potential provided opportunity an to voir dire See, Davolt, jurors. e.g., 207 Ariz. at Opinion Testimony on Motive ¶ 52, 472; Cañez, 202 Ariz. at ¶ Moody alleges first error in Dr. Mor- ¶ 37, 42 P.3d at 579. It also follows that testimony Moody’s possible mo- enz’s about voir defendant who believes a court’s trial, tive for the murders. At Dr. Morenz rights sit on his dire be deficient cannot that, “very opinion, in his testified was bypass opportunity to cure the error likely [for murders] that the motivation jurors subjects questioning about those money alleges cocaine.” inadequately he feels were addressed inappropriate opinion testimony per- opportunity when offered do so. Arizona of Evi- mitted neither the Rules case judge 99 In this invited testimony. expert dence nor our case law on panel, counsel to voir dire the and he allowed pro 104 Arizona of Evidence 702 Rule questions follow-up counsel to ask to individ- testify on expert may vides that an witness jurors throughout process. ual the selection subject any if the “specialized witness’s alleged his opportunity has not knowledge will assist the trier of fact questioning re- follow-up was limited or or to understand the evidence determine stricted, could and because he have asked interpreted fact issue.” This court has questions himself that he now claims should testimony, preclude expert Rule 702 how asked, have been we find no error or abuse ever, subject inquiry of such “the one process. of discretion in the voir dire ordinary knowledge people common us, 100 Based on record before intelli education could reach a conclusion as find no abuse of the trial court’s discretion Poland, as gently the witness.” State actions, fails to demonstrate how 183, 193 (quot alleges deprive the errors served Owens, ing State v. fair, impartial, jury. him of and unbiased *27 (1975)). 695, P.2d 699 Testimony Improper Expert H. ¶ Moody alleges 105 Dr. ex- that Morenz by permissible scope ceeded of Rule 702 Moody 101 contends that Morenz, testifying Moody’s cocaine use was expert, health that State’s mental Dr. Moody province jury. Moody invaded the motive contends for murders. alleges error different statements: express two an although that Dr. could Morenz Moody these be that committed murders Moody suffering opinion on whether was malingering cause of cocaine and that his use illness, permitted not from mental “he was lying.”9 is “a medical term for opinion offer an that Robert killed Michelle Magda of his Malone and Patricia because matter, an note 102 As initial argues Moody cocaine use.” that because object at to either that did trial not no evidence that had used there was he by Dr. court has statement Morenz. This murders, and time cocaine at the long appellant may challenge held that an not Ari- opinion, therefore foundation for no testimony appeal on to which there has been Dr. Morenz’s testimo- zona case law renders objection, is fundamental. no unless the error Miles, Thomas, 432, ny improper. See State v. 186 435, 130 Ariz. 636 P.2d State (1996) (1981). 18, 1214, 10, 1028, (upholding each P.2d 1036 We therefore review brief, Moody appellant’s position issues raised. Failure his also on the "fact” section of testimony argue usually mentioned Dr. Morenz's about a claim constitutes abandon- Moody's police, Carver, turning for himself in to motive waiver of claim.” State v. ment and that Merely argument regarding he it. 175, 1382, (1989). but made no 167, 160 Ariz. argument enough: mentioning not "In Ari- an is Consequently, propriety of we do address not zona, significant opening present ar- briefs must testimony. guments, by authority, setting an supported forth preclude gering lying.” court’s decision defense ex- as medical term The testimony on pert’s cocaine intoxication defense takes Dr. Morenz’s statement out of expert upon where the “had no which basis context. opinion to render an about the effects direct-examination, Dr. 109 On Morenz crack mur- cocaine use the time of the “malingerer” defined a as “someone who der”); Gretzler, 85, 126 Ariz. their up symptoms particu- makes [sic] (stating P.2d “[t]esti- that purpose.” lar He further stated that “[i]n mony concerning intoxication limit- should be case, Moody’s purpose escape Mr. [that is] ed to the time of the crime for which prosecution gain criminal or some kind of tried”), being defendant is other modified leniency from the court.” On cross-examina- McDaniel, grounds by State v. tion, defense counsel asked Dr. Morenz malinger- whether had been “called a ¶ 106 A review of the context of that testi- er, which is medical term for liar.” Dr. mony, however, undermines claim. responded, “yes.” Moody Morenz claims rebuttal, shortly Dr. Morenz called on was answer, that that improperly “Morenz after the heard evidence from the de- expressed professional opinion that experts fense psychotic, was in a [Moody] a liar.” is dissociated state when he kill- committed the Moody’s argu- find no We merit ings. Dr. Morenz testified that had elev- First, question ment for two concluding en reasons. reasons for insane, posed by but “malingering.” compound rather was defense counsel is a One of reason, these reasons was question. that the murders For is unclear did profile “psychotic not fit the killings.” answering “yes” whether Dr. Morenz was Dr. psychotic killings Morenz testified question whether had been called rarely “any have rational then motive.” He malingerer, affirming whether he was told the that one indication that “malingerer” is a term “medical for a that, was malingering was “psychotic unlike liar.” killers,” Moody actually likely did have a Second, even if we assume that Dr. namely, that his substantial cocaine motive— intended testify “malingerer Morenz addiction had rendered him and des- broke liar,” ... a medical term for that definition perate. as a leading question by offered defense ¶ 107 permissible What evidence is counsel on cross-examination. This court on rebuttal is left to the trial court’s discre long has held that “a who defendant invited Young, tion. See State v. may assign error at trial not then the same evi rebuttal See, appeal.” e.g., as error on En- provided by dence Dr. Morenz in this ease dreson, 117, 122-23, responded to the issues covered the de *28 (1973). 253-54 We can few envision situa- type fense and is expert on which tions in which defendant can be said to testimony generally is allowed: the mental an error condemningly by “invite” more than processes health thought of a defendant asking leading question assigns that he to alleges insanity who or mental or de illness appeal. reason, on witness For that fect. Dr. sup Morenz testified to motive in while we find no error here because of the port opinion of Moody’s his that actions con compound question nature of the and the tradicted a diagnosis psychosis. of We find ambiguous response, even if Dr. Morenz’s no abuse of the court’s discretion in permit erroneous, statement were invited ting testimony, certainly no funda and for defense that reason would not mental error. provide a for reversal. basis “Malingerer”

2. Characterization as of I. to Failure Preclude Dr. Sullivan from “Liar” Testifying ¶ Moody alleges 108 also that Dr. ¶ 112 argues that Morenz scope permissible “exceeded the of expert by failing court testimony by offering preclude an on erred to one of the opinion [Moody’s] credibility Sullivan, characterizing malin- mental experts, State’s health Dr.

454 evidence, ed without the bite-mark the late disclosure that testifying

from because of inability to his and defense counsel’s sub- likely *29 erroneously pre- failed that a court trial required were ports, which Ganem testified exhibit, key “the center- clude a witness’s after each transac completed to be law testimony,” which piece of the star witness’s tion. day until not was disclosed defense Next, police introduced the State upon a Krone turned bite-mark before trial. showing pawn shop reports from a different victim; that the pattern the exhibit on camera, and a Moody pawned jewelry, that videotape sought preclude was a defense 2, 11, July January .357 caliber revolver on 320-22, analysis. Id. at of the bite-mark that testified and 1993. Ganem October that the P.2d at 622-24. Our determination itof shop, not own that but he knew he did was precluded should have been based video pawn reports as records. recognized not- importance on the that evidence: We pawn Additionally, learned that dissociation after murders. When defense shop slips from the were to of- second be the State rebutted Dr. Lewis’s claims that fered, objected request- defense counsel Moody psychotic, was in a dissociated state grounds mistrial on the that he had ed no by moving objection into without evidence pawn slips going notice that the were to be slips, pawn describing guns the first two into admitted evidence because the State had Moody that stole from the Malone house. noticed a not custodian records for the prof- This evidence intent showed pawn shop. from documents the second his crimes thus his undermined court denied the motion mistrial and over- psychotic claim that he was at the time objection. Moody ruled the contends that killings. pawn Thus even if admission of the this was error. error, records were those records were Moody appeal, 120 On claims merely deprive and did not cumulative police reports pawn that from the second Moody of a fair trial. shop hearsay. contained inadmissible We Finally, we note that had even note, however, Moody objected never Moody preserved issue for appeal, this rever grounds. their admission on these The sole appropriate sal remedy. would not be an objection made at trial that no was custodian required Reversal is not if the error could of records had Moody been listed and that easily be retrial. remedied on See State v. consequently had no notice that the docu Best, 146 Ariz. 703 P.2d ments would be introduced. Defense counsel (holding object appro not that “reversal would not be grounds did on of lack of founda hearsay. error, priate tion or “Absent fundamental if a retrial would involve admission of objected ground if evidence is on to”); one presently objected what is State v. Gar objec the trial court and admitted over that rison, tion, grounds other for the raised first time (1978) (“Were ground, we to reverse on this Neal, appeal on are waived.” State v. 143 it would result in retrial at which the admitted____Courts same evidence would be “Fundamental error of such is error dimen engage practices.”). should not in such futile possible sions it cannot it is be said for a Moody dispute Because not does this defendant to have had fair trial.” evidence would have been admissible had the Smith, laid, proper foundation been on retrial simply State could call the custodian of rec- ¶ Moody claims that the erroneous ad- ords and have this evidence admitted. That hearsay mission this evidence denied him a said, being we do not condone the State’s fair because it allowed the State to lay proper failure to foundation for the pawned establish that had items in Nonetheless, evidence. we conclude that past and Dr. discredited Lewis’s claim there denying was no fundamental error in was in a state dissociation Moody’s objection to the evidence. pawned he guns when after the murders. Even it were admit error to these docu- Wright’s Opinion Detective on records, without a proper ments custodian of Moody’s Guilt however, the admission of this evidence does ¶ Moody claims that fundamen not constitute error” “fundamental because tal reversible error when occurred the State prosecution presented had other evidence testimony elicited Wright from Detective pawned past. had items in the that she responsi “believed Mr. Moody’s ex-girlfriend, example, testified ble for these brutal murders.”10 did pawned guns had to obtain object not testimony, at the time of the money but buy drugs, establishing that ground moved for a mistrial guns

knew how to convert into cash and the next motion, doing morning. so for time in a the first state of The trial court denied the *30 Wright, tigation replied, Moody. 10. On of Detective She cross-examination as set forth Moody’s attempted above, counsel to show that the De- that she did so because she believed rebuttal, Moody. get” tective was "out to On the Moody had committed the murders. why asked State the Detective focused her inves- 456 ¶ Herrera, 131, Ariz. objection been at v. 203 51

noting that there had no State era, 353, that no the time. The court commented (App.2002). P.3d In Heir 357 from the be- prejudice resulted statements appeals that example, the court of held the Moody deny the did not that cause defense trial court not abuse discretion in did its murders; the defense was committed the grant refusing to a mistrial after it sustained them. that he was insane when he committed objection impermissible an an statement to mur- that the The court observed “who did struck regarding guilt, the defendant’s the Thus, seriously not at the ders is issue.” record, promptly and statement from the Detective judge implicitly concluded that jury. instruction the gave curative to Id. Wright’s unfairly preju- statement had not ¶ 3, objec- contemporaneous No 353. Moreover, deliberation, Moody. diced before case, tion was in this but when an made jurors they the that the court instructed objection day, the the trial was raised next give testimony police the of were agreed appropriate give court an instruc- any greater weight they gave than officers began. jury tion before deliberations testimony any other and witnesses so, judge ultimately instructing The did opinions guilt or were to that as to innocence testimony jury police that of a officer “[t]he disregarded. Moody argues now that de- be weight any greater is not entitled to or lesser of his motion error and nial mistrial was believability merely the fact or because of he warrants reversal. “[a]ny is a officer” that police or she ¶ 124 fail We review trial court’s expressed by any as to opinion witness grant for an of discre ure mistrial abuse guilt or is irrelevant to defendant’s innocence Dann, 557, 570, 43, v. tion. State your disregarded. consideration must be 231, P.3d 244 Whether this issue jury judge guilt is the sole properly preserved question, is in be innocence the defendant.” lodge specific, con cause failed to Additionally, was cor- the trial court objection deprived temporaneous ruling Wright’s opinion rect that Detective opportunity of an to correct error court little killed the victims did may have with immediate occurred an prejudice Moody proving the ultimate is- however, Ultimately, curative instruction. sue in this case: whether was insane Moody’s claim even an fails withstand he Michelle and Pa- when murdered Malone analysis. abuse of discretion Magda. Wright’s Although tricia Detective ¶ 125 The concedes that Detective State prejudicial Moody opinion would have been citing Wright’s improper, statement was victims, he disputing were killed the Court, 590, Fuenning Superior substantially prejudice because was reduced (1983) (stat- 121, (supp.op.) P.2d was insane when the defense was ing necessary that it is nor advisable “neither pos- light he the acts. committed opinion for a whether the to ask witness’ case, ture of this we conclude that trial with which defendant committed crime denying its court did not abuse discretion charged”); Lindsey, 149 cf. motion. mistrial (noting generally permit expert “not testi- that we do Physical Evidence mony on how should decide case”). claims that admitting evi physical certain court erred mistrial, “A of a declaration trial, Before defense counsel dence trial. however, remedy for is most dramatic ‘the blood, all requested that the State release granted only when error and should be trial DNA, handwriting, and ballistic evidence for justice unless appears will be thwarted independent testing. The refused to State grant discharged and a new ” stipu unless the defense release evidence Dann, P.3d Ariz. at ed.’ are the same items that lated the “items Adamson, (quoting at 244 by the ‘finders’ listed below (1983)). were obtained A wit ‘analysts’ below.” by the listed and examined in a statement of belief defendant’s ness’s stipulate and moved to necessarily mistrial. refused to so does not warrant a guilt *31 ble, compel 175 Ariz. the State to release the evidence. motion, ruling say, trial court

The denied the An error is harmless “if we can right require doubt, had the to to State beyond that the error did a reasonable stipulation regarding the sign a reasonable [jury’s] ver- not contribute to or affect integrity appeal, of the evidence. On dict.” Id. ruling claims that the court’s was error. ¶ lone defense at ¶ 129 Arizona Rule of Criminal Procedure committed the that he was insane when he 15.1(e) that, provides upon request, written Magda; murders of Malone and he has never prosecutor must “make available to the seriously killed the victims. contested he examination, testing, defendant for and re- blood, DNA, hand- The evidence issue— any production” items disclosed as evidence. writing samples, and ballistic evidence —does urges “may further that the State not in not bear on the critical issue this case: unreasonably an interfere with accused’s rea- Moody’s insanity. Consequently, claim of secure, attempts to at his own ex- sonable stipu- while we do not condone unreasonable pense, a blood or other scientific test.” operate deprive to of lations that defendants Cada, Smith independently, right their to test evidence (App.1977). based on the record before us we conclude 15.1(e) provides, 130 Rule also this evidence would not have affected however, may prosecutor impose that “[t]he jury’s regarding Moody’s determination conditions, including appropri reasonable an sanity error was harmless. therefore stipulation concerning custody, ate chain of protect physical produced to evidence under Testimony K. Admission of Teibel yet this section.” While our courts to have Moody alleges as error issue, address this we believe that the trial preclude testimony court’s failure to of in position court is the best to determine Teibel, in- newspaper reporter David who stipulation “appropriate,” whether a story terviewed and wrote a about the we will review its decision for an of abuse in appeared murders that the Tucson Citizen discretion. Following pretrial hearing to case, In this the court found the scope “reporter’s privilege,” review the of the proposed stipulation appropriate. The court questioning the trial court ordered that it, might noted that without the State lose its “concerning to Teibel be limited matters ability present to the evidence at trial. How- authenticity to Mr. of statements attributable ever, continually expressed defense counsel that were contained one or more willingness stipulate its to to a chain of custo- news articles authored Mr. Teibel and dy for the entire time that the evidence published in the Tucson Citizen.” possession would be of the defense alleges that the trial court abused its discre- merely It unwilling stipulate team. by failing tion denied him a fair trial custody a chain of for the time that or, preclude testimony altogether Teibel’s possession. evidence was in the State’s alternative, by limiting scope of his Moody alleged refusing that his reason for so cross-examination Teibel. prosecution was that the itself could not avow custody regarding to the chain of certain preclude or limit a wit- Whether evidence, pieces argument repeats an testimony ness’s lies within the discretion of appeal. argue State did Tucker, the trial court. See State v. brief, point response in its which we take as a (1988) (noting concession. preclusion testimony for the sanction of an disclosure violations is reviewed for abuse above, light we have discretion); Fleming, difficulty some with the trial court’s conclu (holding appropriate an sion that State offered the trial court has the discretion However, custody stipulation. chain of even scope of when curtail the cross-examination were to an of discretion find abuse here, appropriate). Consequently, we will not re- subject such an abuse would be ruling review for harmless error. State v. Bi- verse the court’s on this issue absent See *32 Tucker, limitation on the cross-examination of an abuse of that discretion. See 157 court’s justified grounds Ariz. at 759 P.2d at 585. on other or Teibel was Moody’s right to confront whether it violated ¶ 136 Both the United States and against him. a witness guarantee a criminal Arizona Constitutions right to confront witnesses. ¶ defendant the 140 We conclude that the trial Const, VI; U.S. Const. amend. art. relevancy court’s limitation is sustainable on § right right 24. to cross- This includes the alleged grounds and because the information examination, Texas, Pointer v. 380 U.S. sought from not have ly the witness would 1065, 13 (1965), 85 S.Ct. L.Ed.2d 923 reliability on the witness’s or was reflected may “prohibited violated if a defendant is be Evidence is relevant it has cumulative. engaging appropriate in from otherwise any “any tendency to make the existence designed proto to show a cross-examination consequence fact that is of to the determina typical part form of on the wit bias the probable tion of the action more or less ness, thereby expose ‘to the the probable the evi than would be without jurors appropri ... facts from which could Moody argues dence.” Ariz. R. Evid. 401. ately relating draw inferences reliabili unconstitutionally op the that he was denied ” ty Kentucky, of the witness.’ Olden v. 488 portunity question Teibel on two relevant 102 L.Ed.2d 513 U.S. S.Ct. subjects: unpublished information and the (1988) (alteration (citations original) omit process. correctly the ob editorial As State ted). serves, Moody’s the record undermines ¶ Arizona, judge 137 In a trial claim. “may place upon scope reasonable limits the ample opportu- 141 Defense counsel had cross-examination, infringing upon without nity reliability the to cross-examine Teibel on right the defendant’s of confrontation.” article, imposed despite the limitations Lehr, 509, 518, 30, fact, court. In defense counsel stated un These limits become examination that it at the outset of Teibel’s only they deny op constitutional when “like other witness” would treat Teibel portunity present “information which him appropriate and would “ask cross-exami- bears either on the issues the case or on nation,” leaving it to trial court to sustain credibility Fleming, witness.” objections questions. or overrule to his Ariz. at 571 P.2d at Throughout cross-examination State ob- case, In court limited cross- objection jected only twice and its was sus- “questions probe examination to [that] only tained once. veracity, accuracy authenticity By had the time cross-examination defendant,” made and ex- statements concluded, that he did Teibel had conceded pressly precluded any “questions about un- Moody, that not record the interview with information, reportorial published [or about] destroyed notes he took of the had policies processes, practices, or editorial interview, language to that he attributed employment.” He activities of Mr. Teibel’s used, Moody that that it never grounds doing his belief that had two so: his actions possible that described “reporter’s privilege” pro- Teibel had a way reported differently from the Teibel tected the information and his determination them, Moody’s paraphrased that Teibel that the information was not relevant. words, had and that Teibel’s first draft been ¶ Moody claims that Teibel had published originally as edited and was not “reporter’s privilege” and that the no valid written. finding trial court abused its discretion imagine Ultimately, it is difficult to Arizona, privilege reporter one. has a might Teibel have what relevant information an article. to shield a confidential source for opportunity to was denied an had agree § 12-2237 We with See A.R.S. examples cites bring out. The reporter’s privilege is not range completely from irrelevant briefs implicated in this case because Teibel’s arti were”) (for example, “who the editors source. The cle did not involve a confidential merely De- material that was cumulative. question then becomes whether only for fundamental error. spite claims that he was denied the the latter two Teibel, Thomas, opportunity impeach bring out his See State *33 events, question (1981). Tei- 1214, own version 1217 P.2d process, about the editorial the record bel

reflects that defense counsel did all of these a. The “Cut Loose” Comment things. Consequently, we cannot conclude ¶ closing arguments, 147 Before defense by the trial court discretion abused its requested jury counsel instruction that allowing testify Teibel to under an order that explain would the ramifications of an NGBRI scope limited the of examination. ju- verdict. Defense counsel feared that the rors would be reluctant to find L. Prosecutorial Misconduct they thought if such a verdict would NGBRI ¶ Moody alleges separate 144 five instanc- put Moody “out on the street.” The State prosecutorial es of misconduct he claims argued against giving the instruction and the (1) appealing jurors’ warrant to the reversal: request. court denied defense (2) closing argument; improperly emotions in (3) day, knowing that no using non-testifying opinions; us- 148 The next doctors’ ing Logan the false Carlos information sub- an given instruction would be on the effect of (4) stantively closing argument; arguing in verdict, prosecutor argued in his NGBRI interview; Moody’s videotaped the content of closing argument rebuttal that “the defen (5) improperly stating bur- the defense’s you asking dant is to excuse a man has who proof insanity den of on the defense. brutally viciously ... murdered two [and] innocent women on the basis of a disorder prevail prose 145 To on a claim of that is in not even settled the mental health misconduct, cutorial a defendant dem must field____Before you somebody cut loose on “(1) pres onstrate that misconduct is indeed that kind of disorder....” The court sus- ent; and a reasonable likelihood exists objection tained an from counsel and defense that the misconduct could have affected the verdict, jury’s thereby “disregard instructed the the last denying defendant Atwood, fair trial.” State v. by prosecutor.” prosecu- 171 comments The (1992),disapproved 832 P.2d remarks, stating tor then “[b]e- clarified Nordstrom, grounds by other v. you guilty, fore find someone not which 229, 241, ¶ 25, (2001). about, talking you what I’m I think would analyze We each of claims turn.11 you would want some rehable evidence any.” Moody argues and there isn’t now Inflammatory 1. Appeals to Emotion appeal emotion warrants rever- ¶ Moody raises several claims that the sal. prosecutor appeal- committed misconduct in appeal 149 It is misconduct to jurors’ ing to closing argu- emotions in jurors’ that an fears NGBRI verdict will these, Moody’s ment. Of most substantial result in a defendant’s v. release. State claim challenge prosecutor’s is his to the Makal, 476, 478, 104 Ariz. P.2d appeal jurors’ fears that clearly prosecutor That is what the guilty by would be released found “not by [Moody] asking did not to “cut (“NGBRI”). insanity” reason of Additional- Donnelly loose.” The State relies on dicta ly, Moody prosecutor claims that im- 637, 647, DeChristoforo, 416 U.S. 94 S.Ct. properly by referring belittled him himto (1974), proposi 40 L.Ed.2d 431 for the “poor impermissibly as Robert” and then lightly tion that “a court should not infer that injected suffering closing the victims’ into prosecutor ambiguous intends an remark to argument. Because the first of these objected damaging meaning that a preserved appeal, have its most exhortation, separately, reviewing jury, sitting through we each claim lengthy address will 78, 24, Hughes, 11. In State v. 193 Ariz. him a fair trial.” Id. at 969 P.2d at (1998), applied Although Moody Hughes passing, this court the "cumulative cites appellant develops argument point. error” doctrine to a case in which an It is no on this misconduct, Carver, separate raised seven claims of therefore waived. See State v. alleged cumulative effect of which he "denied Dumaine, meaning plethora from the of less draw that conclude, (1989)). damaging interpretations.” We prosecutor’s The “cut however, prosecutor’s that the remarks were inappro- irresponsible, loose” comment was ambiguous. However, inflammatory. priate, and be- comment, was cause it was an isolated somebody phrase “cut loose” to, objected promptly and was rendered less interpret. requires leap to It no inferential court, by imagine any interpretation is difficult to harmful instructions itself, prosecutor’s comment, “cut loose” comment other cannot conclude that the than that an NGBRI verdict would result trial. denied a fair *34 Moody’s only comment release. Not did this fears, impermissibly appeal jurors’ to the but b. The “Poor Robert” Comment law, it was also an incorrect statement ¶ Moody alleges that the 153 under Arizona law a defendant who because him in prosecutor patronized and belittled to a is found NGBRI is “committed secure prosecutor, closing argument. The rebuttal facility.” § state mental health A.R.S. 13- people discussing claim that in the defense’s (2001). egregiousness The of the state- 3994 identity dis not understand dissociative did magnified by prosecutor’s ment was the order, “poor to the defendant as referred not in- knowledge that the would be Moody” being afflicted with a Robert consequences structed on the of an NGBRI Moody that no one understands. disorder verdict. object not to this comment. Failure to did ¶ Still, the mere fact that object closing argument in to a comment improper does prosecutor makes remarks argument appeal, and we waives that unless, require not “under the cir reversal only it for fundamental er therefore review case, jury] cumstances of the was [the Thomas, 435, 130 Ariz. at ror. See by probably influenced those remarks.” at 1217. Puffer, 516 P.2d 316, Puffer, in As “Attorneys, including prosecutors in remark, objec objected counsel to the cases, given latitude in criminal are wide sustained, jury was imme tion was and the closing arguments jury.” their to the State diately disregard prosecu instructed to Comer, 799 P.2d Moreover, in this tor’s comments. See id. (1990). Although Moody cites Comer for prosecutor then comments case the made proposition that it is misconduct belit- sought remedy previous his miscon argument, in closing tle the defendant Comer duct, jury convened for de and before the proposition. does not stand for Comer liberations, the trial court instructed appealed prosecutor improperly held that a possible jury that it was not to consider the referring jurors’ to the to the emotions effects of its verdict. “filth,” “monster,” as a defendant Cornell, 152 In State v. on earth.” Id. We “reincarnation of the devil (1994), this court “may on the prosecutors comment held “experienced prosecutor stated that inhuman nature of the defen- vicious and have known better than to make should acts,” arguments “may not make dant’s but remarks, actions seem almost such and his appeal passions and fears which bring prejudicial and irrelevant calculated to belittling jury.” Although agree that Id. jeop- jury. His conduct matters before closing argument in a criminal defendant proceedings.” We echo those ardized unnecessary, given the evi- improper and regarding prosecutor’s concerns state- that the case we do not find dence Cornell, However, ment this case. as er- constituted fundamental passing comment merely ... convictions do not reverse “[w]e referring to conclude that ror. We therefore punish prosecutor’s [ ]or misdeeds Moody” “poor was as Robert the defendant Rather, re- Id. deter future misconduct.” an error “of such dimensions required when “the defendant versal is possible for a defendant be said it is cannot a result of a fair trial as has been denied Smith, 114 a fair trial.” State v. Bible, to have had prosecutor].” the actions of [the (quoting Ariz. at 858 P.2d at 1203 “very like- concluded that it was Suffering Geffen that Describing the Victims’ c. malingering, or if he had ly” that was prose Moody claims that the LaWall’s, Potts’, or Dr. Mor- Dr. Dr. seen committed reversible misconduct cutor indicated that reports, all of which enz’s suffering of each “graphically describing the malingering. Dr. “possibly” ending argument by telling decedent” any of he had not seen Goldberg said that sympathy for the had no ob- counsel did not reports. these Defense sympa asking them to have no victims ject questioning. line of to this thy object to these for him. failed comments, limiting to one for our review later, Dr. days expert 159 Two defense Thomas, 130 Ariz. at fundamental error. See suffering Lewis testified at 1217. (“DID”), identity from dissociative disorder had devel- illness that she claimed mental mischaracterizes ren- oped early Moody’s childhood and reviewing' prosecutor’s statements. After cross-examination, psychotic. him On dered record, description” “graphic we see no had Dr. Lewis she prosecutor asked suffering. prosecutor’s of the victims’ *35 report that Dr. Potts drafted reviewed the description frank of the murders themselves observing Moody. spent months after he six Comer, Ariz. at permissible. See is (“Within “yes,” prose- the When Dr. Lewis answered latitude of clos 799 P.2d at 346 that Dr. Potts had ing argument may comment on the cutor asked her to confirm counsel Moody having and inhuman nature of the defen DID that diagnosed vicious not as and however, In doing, dant’s acts. so counsel report suggested that such a nothing in the may arguments appeal to the not make which appropriate. There was no diagnosis was Moody passions jury.”). and fears of the has objection questioning. to this line of failed to show fundamental error on this Dr. day, the State called 160 The next any sug point. Nor does cite cases testimony Drs. of Sullivan to rebut gesting improper that it was to ask the examination, Goldberg and Lewis. On direct Indeed, sympathy him. to have no Dr. his reasons prosecutor asked Sullivan jurors encourage not to cases based decide believing malingering. was sympathy. on emotion or We conclude that gave Dr. One of the reasons Sullivan passes an such a statement muster as exhor Geffen, Potts, LaWall, and Morenz that Drs. duty. Moody tation to the to do its malinger- “all concluded Mr. therefore fails to demonstrate fundamental objected ques- ing.” Moody neither to this requiring reversal issue. error on this nor to strike the answer. tion moved Improper Non-Testifying

2. Doc- Use allegation final of miscon- of Opinions tors’ use prosecutor’s duct is that the substantive closing argument opinions of the doctors’ ¶ Moody alleges prosecutor argued closing, prosecutor In was error. non-testify- reports opinions used the and of “history malingering.” had a ing impermissible purposes. He doctors for support, Dr. initial test- As he cited Geffen’s prosecutor by claims that erred both not ing, despite the fact that Dr. Geffen had injecting reports opinions these and into his later, prose- testified at trial. Moments by arguing of witnesses and examination “LaWall, Potts, that Drs. substantively closing argument. cutor stated them say [Moody malingering,” de- is] Geffen also argument, Moody con- 158 On the first Dr. spite fact that neither Dr. LaWall nor prosecutor reports used the tends that the rebuttal, Potts had testified at trial. On Potts, LaWall, Vesper, Drs. and Geffen argued DID does not render prosecutor Goldberg experts Drs. impeach defense Dr. Ves- legally “[e]ven one insane because Goldberg Dr. stated his conclu- Lewis. After just you have dissociative per says because that the results of the tests he adminis- sion you don’t have identity disorder doesn’t mean with were not consistent tered Vesper, expert an retained control.” Dr. malingering, prosecu- someone who was Moody’s competency the defense to evaluate Goldberg Dr. on cross-examination tor asked trial, testify during this trial. report by Dr. to stand did not he had reviewed a whether Finally, prosecutor opinions indicated that Drs. the facts and in the re- contained LaWall, Potts, buy” ports substantively impeach and Geffen “didn’t Goldberg Drs. Moody’s insanity Lewis, defense. opinion to bolster the of Dr. Sullivan, closing argument. and in object 162 The defense did not arguments. these The defense also did not n . Use Reports in Examination object reports use of Dr. Potts’ or the Witnesses reports of the other doctors at trial.12 Addi- ¶ Moody prose claims tionally, although Moody that the claims that he reports “immediately moved for a mistrial cutor’s use of the to bolster Dr. after the nontestifying testimony State’s first use of a doctor’s Sullivan’s and to discredit that of opinion,” in fact Goldberg he did not so move until the Drs. and Lewis violated this court’s morning, Lundstrom, next and the sole basis for that holding in reports motion was that those Lundstrom, were tainted P.2d at this court stat information, Logan the false Carlos not ed that while Arizona Rule of Evidence 703 they improper opinions were of non- expert testify allows an to “facts or data” testifying parties. third evidence, testifying not admissible in “if the expert merely acts as a conduit for another appeal, Moody challenges 163 On the re- non-testifying expert’s opinion, ‘expert ports containing improper hearsay as evi- opinion’ hearsay and is inadmissible.” 161 argued substantively dence that could not be Ariz. at Although 776 P.2d at 1074. Because, however, for its truth. the “evi- pros raises a colorable claim that the objected ground dence to on [was] one [that Lundstrom, is, ecutor’s actions here violated late and admitted disclosure] over the lodge contemporaneous objection failed to objection, grounds specified other [such *36 hearsay Zuck, grounds.13 based on or hearsay] as confrontation are waived.” State v. 134 509, 513, (1982). 162, Consequently, Ariz. his burden is to demonstrate 658 P.2d 166 merely Consequently, only not that a Lundstrom violation has we review this claim Bolton, occurred, fundamental error. but that this violation rendered it See State 182 830, (1995). impossible P.2d for him 896 837 to have received fair Bolton, trial. See 182 Ariz. at ¶ prosecutor argued 164 The that the non- (stating at 837 not matters raised at trial testifying reports doctors’ could be to used error); Smith, are reviewed for fundamental impeach experts. the defense Rule of 703 (noting Ariz. at 561 P.2d at 744 the Arizona Rules of Evidence allows an fundamental error is “error of such dimen expert opinion witness to base an on “facts or possible sions that it cannot be said it is for a data” not in admissible evidence. The infor- trial”). defendant to a fair have had He mation need not be admissible if it of the develops argument no such and has not met “type reasonably upon by experts in relied demonstrating the burden of how the use of particular the field.” Id. Once disclosed to non-testifying opinions the doctors’ here con jury, this information is “not as admitted stitutes fundamental error. evidence, only purposes substantive but showing expert’s opinion.” of the basis of the n . Closing Argument Reports in Use of Lundstrom, 141, 146, ¶ Moody argues argues prose that the prosecutor by using improperly non-testifying violated Lundstrom cutor used the doc- counsel, 12. did file motion in limine before trial defense which defense claimed counsel preclude grounds to Dr. Potts as a witness on the impaired opportunity ability his to interview notes, of late disclosure of the doctor's but the Dr. Potts. judge preclusion ap- did not find to be an propriate Hughes, sanction. held that Moody's 13. counsel moved for mistrial the fol- “when counsel the court aware of his [makes] lowing day grounds on He did of "misconduct.” motion, objection through previous failure grounds hearsay specifically object on of or object at trial does not then waive the issue on right Moody's denial of to confront witnesses. ¶ appeal.” Ariz. at P.2d at 1198. 162; Zuck, supra, See see also 134 Ariz. at only ground The ever offered the defense for (failure specific object 658 P.2d at 166 precluding testimony reports, Dr. Potts' how- grounds appeal). waives error on ever, was late disclosure of Dr. Potts’ notes to Moody’s Videotaped Improper Use on four 3. reports as substantive evidence tors’ during closing argument and rebut- occasions Confession First, to Dr. prosecutor referred tal. challenges the also Moody’s testing proof initial as Geffen’s argu closing prosecutor’s substantive use Second, “history malingering.” he stated Moody’svideotaped confession. ment of “LaWall, say that Drs. Potts and also Geffen trial, During counsel asked defense Third, argued that malingering.” he’s videotaped for the play Moody’s confession jurors agreed Dr. Lewis’s even with jurors could determine whether so the disorder, identity diagnosis of dissociative malingering. the State’s was Over opinion Vesper’s Dr. was that such disease permitted the de- objection, the trial court controlling prevent did not an individual from tape, play fense to but instructed Finally, he stated that his or her actions. only Moody’s and not to consider demeanor LaWall, Potts, buy” Drs. and Geffen “didn’t tape statements from the as sub- to consider insanity Moody’s defense. stantive evidence. ¶ Moody by arguing the claims that videotape played, the 171 After the was non-testifying doc- substantive content prosecutor requested per- that the be argument, prose- reports closing tors’ experts the effect of mitted to ask the about cutor violated this court’s determination videotape opinions on their about reports may Lundstrom that while such be Moody’s malingering. agreed. court expert’s opin- used show the bases Sullivan, of Dr. On direct examination ion, they may not be used as substantive if, in prosecutor asked his review 161 Ariz. at evidence. any videotape, the had noticed incon- doctor note, however, by failing object We [Moody] “in terms of what remem- sistencies trial, any of these instances at de- Dr. or what he doesn’t remember.” bers prived opportunity court of to cure ini- then testified that Sullivan reports misuse of the instructions or Magda tially told that Patricia Dann, otherwise. See State neighbor, next-door but later the interview Conse- being for mur- he indicates that he is held above, quently, as is not burden *37 dering neighbor, despite the his next-door error, merely to demonstrate but also to fact that no one had identified her as deprived show that the error him of a fair later, days Four the defense murder victim. Smith, trial. See Ariz. at mistrial, arguing Dr. moved for a that Sulli- error”). (defining at 744 “fundamental of the improperly van considered the content motion, videotape. The court denied the re- ¶ burden, light of we conclude minding counsel that the restriction on sub- injection prosecutor’s that the of the non- only applied consideration to the stantive testifying opinions closing argu- doctors’ into jury experts properly that could the Indeed, ment was not fundamental error. videotape. of the consider the content trial, given presented it the other evidence at ¶ merely closing argument, prosecutor was cumulative. Both Drs. Sullivan 172 In the they Moody was argued tape and Morenz testified at trial that be- that the showed that Moody “ke[pt] malingering. that Moody malingering, to be and both set He stated lieved more,” grounds they up good story for two hours or but upon forth substantial which jury significant slip. He noted opinions. their Because the al- then made based hours, min- videotape at 18 ready ample “proper” it evidence when the was had before utes, seconds, Moody the officers Moody faking exaggerating and 30 told illness, Magda Patricia symptoms prosecutor’s the that he did not know who mental 19:58:15, however, was; he non-testifying he stated that recitation of the doctors’ cu- at neighbor. prosecu- closing argument did not killed his next-door opinions mulative you think Dr. Sulli- deny Moody Consequently, “[i]f a fair trial. tor then said don’t here, Moody tape.” got right, it was van it listen to the conclude that there were error prosecutor encouraged argues does not re- now that the not fundamental and therefore precise jury videotape the for the quire the use reversal. purpose expressly implied Logan the trial court for- sel that the information that bade, namely, as substantive evidence of reported about was fabricated and Moody’s guilt. newspaper police derived from articles and reports, suggested Logan provided ¶ objected argu- never to this no details of the until of- murders he was ment, however, provided and therefore never plea fered a deal four ar- months after his opportunity the court the to cure ¶ Dann, rest. error. See 205 Ariz. at Therefore, only

P.3d at 249. we review ¶ rebuttal, prosecutor 178 On made id.; Bolton, fundamental error. See see also arguments designed three to rebut these Ariz. at First, argued claims. he that Detective prosecutor’s 174 The substantive use of Wright did not discover that some of what tape’s closing appears contents in to have Logan Carlos had said was not true until prosecutor been error. The directed the September long grand after the content, jury tape consider the for its testimony police reports had been dis- giving specific time references for statements Next, argued seminated to the doctors. jurors Although he wished the to hear. Logan that some of the Carlos information argues prosecutor eventually Logan way, must true no be because had videotape testimony Dr. tied Sullivan’s first-person report Moody, other than a from by saying you Dr. don’t think Sullivan “[i]f to know that old wom- [an] “stabbed got right, tape,” listen to the he did so an” or was featured on “America’s Most substantively discussing videotape after Finally, prosecutor Wanted.” asked the for fifteen sentences. Such use the video- to consider how must have met tape specifically prohibited Logan “small-time crack seller” —when —a However, court. a number of factors miti- theory considering the defense’s gate impact prosecutor’s conduct. was not a cocaine addict and was not under First, although the defense later ob- at the influence cocaine time of the jected to Dr. Sullivan’s substantive reliance murders. video, on the content defense counsel contemporaneous made no originally urged jurors per- had that the be objection prosecutor’s comments dur- mitted to videotape consider the evidence ing argument. object rebuttal to a Failure Second, substantively. prosecutor did prosecutor’s during closing argu- comments encourage jurors to view the entire ment limits our review to one for fundamen- tape substantively, but directed them to the only. Phillips, tal error See particular point tape sup- on the that would 427, 437, 48, port expert’s testimony. Finally, prosecutor obtained a waiver of the “demean- given lati 180 Counsel is “wide *38 only” ruling expert or to allow his to consider closing argument in tude” to “comment on videotape testify to it. the contents and argue all infer the evidence and reasonable Consequently, prosecu- we conclude that the McDaniel, it. ences” from State argument supporting tor’s Dr. Sullivan’s reli- Further, videotape ance on the to form his conclusion prompted that and are invited “[c]omments not did constitute fundamental error. im by opposing arguments counsel’s are not they pertinent proper are reasonable and Arguing Logan 4. False Carlos Informa- Trostle, to the issues raised.” State v. tion The ¶ Moody challenges prosecutor’s category. prosecutor’s comments fall into this Logan use of the false Carlos evidence argument. purposes closing substantive in ¶ telling that 181 The State claims jury Logan that the information Carlos ¶ closing, argued its defense counsel given to the doctors before the State was jury opinions that of Drs. Morenz that it was false was intended to rebut knew they and Sullivan were unreliable because Logan’s counsel’s claim that Carlos part upon Logan in defense were based the Carlos evidence, mental health complete “a lie.” false statements were “fed to which was Coun- habit, Moody all of his had sold The crack-cocaine opinions. to taint their professionals” counsel invited much of his furniture and had appliances maintains that defense and State by putting at issue the State’s this comment jewelry, other items to pawned guns, Logan infor- supplying motive for the Carlos money buy crack. Dr. Morenz obtain agree. Defense to the doctors. We mation Moody him that aliens that told testified suggestion that the State intention- counsel’s quantities” him “massive forced to use ally experts opened its the door tainted cocaine, Moody his repeated a claim that prosecution to rebut the assertion. pipes and expert, Dr. Lewis. Crack own were found in the vehicle paraphernalia other prosecu 182 The State defends Magda after Moody that stole from Patricia argument Logan that must have learned tor’s Additionally, counsel killing her. defense Moody from because Lo certain information jury already before the that put had evidence sources con gan had no access to other separate drug-re- Logan had twelve argues The Carlos taining that information. by previous invited the de over the this inference was lated arrests or convictions Logan’s evi suggestion decade, fense’s that all of and the also heard evidence false, not learned dence was or at least was Moody Logan pieces told authorities he sold Moody, of it should have from none day-and-a-half in the before of “rock cocaine” by agree been considered the doctors. We the volume of evidence on his arrest. Given prosecutor’s argument responded to that the point, prosecutor’s we conclude that the by in arguments raised defense counsel clos comment, itself, not constitute error did ing. pertinent It was also to the case be Moody deny a fair trial. Dr. that he relied at cause Morenz testified making his part least on the information Increasing Burden Defense malingering, Moody was determination Proof argument and an that he relied on false credibility. evidence harms his prosecutori As the final act of Moody 183 The third comment —that met misconduct, Moody challenges prose al Logan, with “a small-time crack seller”— closing argument cutor’s statement supports the inference that was producing the defense had the burden Logan crack user. Evidence that had sold highly probable” that “evidence that makes it by Moody’s coun- crack had been introduced insane at the time of the murders sel in his cross-examination of Detective prosecutor malingering.” and was “not Wright. Moody attempted had to show that closing this burden in rebuttal ar reiterated Logan should not be believed because he was argument gument. claims that this Thus, a criminal and a crack dealer. impermissibly proof increased burden before the and its use was evidence was required argues that reversal is as objected-to closing. disagree. result. We 184 The inference that met Lo- required prove A defendant dealer, prosecu- gan, supported a crack insanity “by convincing clear and evidence.” theory a crack user. tion’s 13-502(B) (1989).14 § This court has A.R.S. supported This inference was reasonable “highly convincing” and held the “clear and in the record as well. For other evidence interchangeable. probable” to be standards had a example, disputed never that he *39 419, 423-24, King, 158 Ariz. 763 P.2d habit in the months substantial crack-cocaine Thus, Moody have 243-44 would reporter before the murders. Tucson Citizen only if he could dem legitimate claim here testified that told him he David Teibel that the to show that he is onstrate burden spent had “three to four thousand dollars” insanity from faking not somehow differed shortly doses” of cocaine before the “massive fact, was, in burden to show that he Moody’s ex-girlfriend Malone murder. also that, support his substantial insane. testified (C). Moody's requirement case. is found in section

14. This now applicable The section cited in text is the version ¶ fail precludes 187 We to see the distinction between instruction below defendant from insane, the two. To demonstrate that one is claiming appeal error on unless the error is one insanity must demonstrate that is fundamental.”). or, case, real in “faked” as used separate argu- offers two “malingered.” Moody explain fails to how ments that in the error this case is funda- prosecution applicable misstated the bur- (1) requires mental and reversal: the instruc- authority den in this sup- case and cites no tion was erroneous because it misstated the porting position. Consequently, his we do law, (2) the instruction violated the Ex any not find error and decline to reverse Post Facto Clauses of the United States and ground. convictions on this Const, I, Arizona Constitutions. art. U.S. Const, 9; § § Ariz. art. 25. Jury

M. Incorrect Instruction on Intoxi- cation agree 191 We that the instruction ¶ Moody alleges improp- that the court given misstated the in at law effect the time erly jury instructed on the effect intox- Moody committed his crimes and therefore ication. mur- When committed the Walker, constitutes error. See State § in ders November A.R.S. 13-503 675 P.2d (1989)provided as follows: (finding an instruction that misstates the law actual culpable [W]hen the existence of the error). Moreover, change is an in A.R.S. intentionally mental state of or with the § deprived 13-503 was substantive because necessary intent to is a element to consti- Moody of a at defense existed the time any particular species degree tute he committed his crimes. Thus the Ex Post offense, jury may take into consider- Facto Ari Clauses the United States and ation the fact that the accused was intoxi- require zona Constitutions that the version of determining culpa- cated at the time in § 13-503 effect at the time the crimes ble mental state with which he committed applied. were committed be See State v. the act. Correll, 468, 481-82, January That statute was amended effective (1986) (finding change 734-35 that a 2, 1994, temporary to eliminate intoxication capital sentencing aggravating factor was a requi- as a defense “for criminal act or change required application substantive (2001); § site state of mind.” A.R.S. 13-503 of the version in effect at the of time the Laws, §§ 1993 Ariz. Sess. ch. 3. Rath- committed). fense was instructing jury er than that intoxication determining Moody’s could be considered giving jury The error the incorrect acts, mental state the time of the compounded by prosecu- instruction was jury court instructed the on the later version tor, argued improper who instruction to statute, of the which disallows intoxication as clear, jury. “just He stated: so we’re a defense. temporary insanity. intoxication is not Normally, de review that[;] saying you’re going That’s not me novo a claim that a instruction misstates get an says instruction that this: the fact Orendain, the law. State v. using drugs drugs he’s and on or withdraw- 1325, 1327 However, Moody ing drugs insanity____It from is not not a object failed to instruction there insanity.” defense and it is not preserve appeal.15 did not fore this issue for However, Valles, because See State v. (1989) (“Failure 1049, 1054 object object to a failed to and our review is limited to argues object that he did to the in- was "no evidence of intoxication." The court objection. Moody objected, A review record clear never struction. makes sustained the however, instruction; object § that he did not to this instruction on the to the court’s 13-503 ground general objection that it did not state the law in effect at to a related instruction is not Instead, preserve appeal. the time committed his crimes. sufficient to this issue for See *40 327, 328, Moody objected Long, to a related instruction that in- (1978) aggravates (holding raising objection not a valid defense if it a that one toxication is preserve preexisting objected jury mental illness. He to this to a instruction does not other only ground objections appeal). latter instruction on the that there on error, prop- that trial court’s failure to fundamental we can reverse on this we held only if the error is “of such dimensions” erly jury basis instruct the on the effect of intoxi- deprived him that of a fair trial. See “impor- an deprived cation the defendant of Smith, 114 Ariz. at at him, right, which the law tant accorded Because of the defenses asserted and the jury pass have the on the truthfulness of his case, placed jury facts before the in this and, story, they believed that he was intox- do not find the error fundamental. any say icated to extent whether such trial, prevented entertaining Throughout intoxication him from the defense strate- gy drug necessary was to distance from use and to constitute murder in malice show that the murders were the result of degree.” the second Id. psychosis, not cocaine addiction or intoxi- case, Moody’s the defense at- Indeed, by drug arguing against cation use. any tempted drug evidence of use defeat intoxication, State-proposed a instruction on consistently argued and that there was no urged defense counsel that the court could drugs evidence that used near the give not it because it was unsupported. He Moody presented time of the murders. evi- any denied that there was “evidence of intox- throughout demonstrating trial dence during ication the event.” He noted that the by psychosis these crimes were caused using drugs evidence was present not cocaine. Nor did the State King’s

was Dora statement that had evidence that at was intoxicated approximately days smoked crack seven be- result, in- the time of the murders. As a Thus, fore the first murder. defense counsel structing jury regarding the effect of argued, jury provided “no evidence intoxication at the time of the murders did [Moody] was intoxicated” at the time of the negate culpable not a mental state and did killings. attempted argue While the State Moody’s fundamentally not un- render presented Moody’s past that evidence Consequently, fair. relief is denied on this drug suggested use that the motive for com- ground. mitting get money buy the crimes was to cocaine, argued more defense counsel that an Voluntary N. Failure to a Act In- Give instruction on “inviting intoxication would be struction jury speculate where there is no evi- Although dence.” there was substantial evi- ¶ Moody alleges error drug dence of extensive use the weeks give voluntary trial court’s refusal to act ¶¶ murders, 183-84, supra before the see proposed instruction. The instruction direct there was no evidence of at intoxication ly § language tracked the 13-201 A.R.S. time of the offense. requirement minimum “[t]he urging required 195 In that reversal is liability performance by criminal is the here, Hudson, Moody relies on State v. 85 person voluntary of conduct which includes a (1958), 331 P.2d 1092 in which we duty im perform act or the omission to reversed the defendant’s murder conviction posed by person physically law which the and remanded for a new trial because the capable performing.” a trial We review give trial court failed to an instruction on give court’s refusal to instruction voluntary intoxication. The defendant Bolton, an abuse of discretion. State v. ease, however, expressly defended on A grounds requisite that he lacked the defendant is entitled to instruction and, intoxicated, mental state because he was any theory reasonably supported by the evi case, unlike in Hudson there was Melendez, dence. some evidence of intoxication at the time murders, as well as intoxication ¶ Moody argues at that his defense days preceding them. Id. The evidence indi- trial was that he was not in control of his “helped cated the defendant had con- actions, argument sup- and that gallons a total of sume two three-fourths Lewis, ported by testimony of Drs. Mor- quarts day or eleven of wine on the Sullivan, enz, all killing day preceding of whom testified and the it.” Id. evidence, light Moody reported being 331 P.2d at 1095. In of this in control of his *41 being voluntary though they’re controlled as [to] actions. misconstrues the feel added.) necessary support imposition of act to something (Emphasis else.” Even result, responsibility. criminal As a Moody’s jury accepted testimony, if the this voluntary correctly that a court determined in self-reported feeling being of not control reasonably supported instruction was not act actions demonstrating falls short of that his by the evidence. voluntary. No mental health ex- were not Lara, actually pert suggested 199 In be- 1337, 1338(1995), else, court this clarified by something or ing controlled someone “voluntary requirement act” requires to which is what Lara demonstrate merely § com- 13-201 codified the A.R.S. voluntary Ariz. at the lack of a act. 183 Lara, requirement. mon-law actus reus knee-jerk (requiring at “a re- asserted that he had not acted the defendant sys- autonomic nervous flex driven voluntarily he suffered from an or- because tem”). ganic impairment personality brain and dis- reasonably in 201 No evidence this ease however, held, order. Id. We “the term voluntary finding of a supported a of a lack ‘voluntary act’ a determined con- [means] Consequently, Moody entitled act. was not movement, bodily to a scious contrast voluntary act instruction and the trial knee-jerk by the autonomic reflex driven refusing court not abuse its discretion did 234-35, system.” nervous Id. at give one. “bodily movement[s] 1338-39. We noted unconscious, asleep, hypnosis, while under Argu- Permit O. Refusal Surrebuttal during epileptic examples fit” of invol- an as ment untary acts. Id. at 902 P.2d at 1338. Thus, ¶202 damage per- despite Lara’s brain contends that because disorders, sonality no evi- the court found insanity proof on the bore the burden involuntary: “Lara’s dence that his act was defense, the trial court should have allowed expert testimony falls far short of this. argument him make a and its surrebuttal [He] was not unconscious. was re- [Lara] constituted “constitutional refusal to do so effort and determination. He lentless Preliminarily, we prejudicial error.” voluntary act in- was thus not entitled to a not clear whether note that the record is § struction under A.R.S. 13-201.” Id. requested ever surrebuttal defense counsel ¶200 reasoning applies in The same this any evi- argument: The record is devoid identity Moody’s alleged dissociative case. Moody requested ar- dence that surrebuttal disorder, disorder, personality narcissistic clos- gument during either discussions about may upon impairments and other brain bear ing argument jury instructions or after determination, do not in- the mens rea but argument.16 prosecution’s rebuttal Con- actus reus determination. See form the argument appears to have sequently, 13-502(A). Lara, expert § no A.R.S. As waived. been testimony suggested ac- here ¶203 Moody preserved Even had consciously and as performed tions were not however, appeal, whether issue a result of effort and determination. Of argument is a decision permit surrebuttal at the various many doctors who testified trial court. committed to the discretion of the trial, only opined Dr. Lewis stages of this Jensen, See State clearly in a “was dissociated (upholding murders, and that state” at the time testimony). On court’s denial of surrebuttal people not uncommon in who dissociate “is argument in- Moody provides on the issue of is the have surrebuttal record cite during following ’by impact sanity, counsel comment defense that will on it. jurors prospective be should proposition voir dire statement for the cites this might long time: warned that the trial last insanity requested surrebuttal on that "Counsel witnesses, many I do not know how rebuttal Because we could find no but was denied.” yet any indication and the Court has not made request or denial of evidence of for surrebuttal you're going to allow a surre- whether or not buttal, record, request anywhere we con- in the such a proof we do have the burden of since request waived. such clude that certainly going also if we're that issue and

469 appeal, rulings we will not disturb the court’s reverse it absent a clear abuse of that discre- Bolton, absent an abuse of that 309, discretion. Id. The tion.” 896 P.2d at only authority Moody suggesting cites the court abused its discretion is the dissent- ¶207 in- agree We with that an Zimmerman, ing opinion in State v. 166 Ariz. regarding struction an the effect of NGBRI 325, 331, 1024, (App.1990) 802 P.2d might helped mitigate verdict have the effect (Kleinschmidt, J., dissenting), suggests which prosecutor’s of closing argu- statement in that because the defendant bears the burden ¶¶ swpra ment. See 146-52. This court has defense, proving insanity an it should be held, however, previously that such an in- an abuse of discretion to not allow surrebut- required struction is not and we noted that tal. jury’s understanding of the ramifications ¶204 We decline to hold “guilty” guilty” and “not verdicts is incom- permit failure to surrebuttal when there has plete jury “a because can never know wheth- request been no for it constitutes an abuse sentencing judge give er a will the maximum opt discretion. per We not to a create se one, possible sentence aor lesser or whether requiring rule argument surrebuttal in all suspend imposition he will of sentence and in insanity defense, cases which is raised as a Jensen, grant probation.” 410, 111 Ariz. at previous holdings reaffirm our granting 531 P.2d at 533. We therefore in concluded discretion judge to the trial to determine jurors Jensen that the obligation “had an permit

whether to given surrebuttal finding guilty, guilty the defendant not or not See, Steelman, e.g., case. State v. 120 Ariz. guilty by insanity____What hap- reason of 1213, 1231 pened after their verdict was not their con- cern.” Id. ample prece- Because there was P. Failure to Instruct on Effect dent in our case law for the trial court’s NGBRI Verdict instruction, give decision not to the NGBRI Finally, Moody argues that the we find no abuse of in failing discretion by trial court refusing erred give an in give generally. the instruction struction that explain jury would to the ¶ Moody alleges also that the failure to guilty a “not insanity” reason of give the immediately instruction after the (“NGBRI”) verdict would not result prosecutor jury exhorted the not to “cut Moody’s release. Defense counsel twice re [Moody] loose” constituted error. The trial quested instruction, such an once while set objection court sustained a defense tling jury following instructions and once jury statement and instructed the to disre- State’s argument, rebuttal pros which the gard deliberations, it. Before the court in- urged jury ecutor [Moody] to “cut jury structed the not to consider or discuss loose.” Both times give the court refused it, possible punishment “the consequences” or indicating jurors began before the that would flow from a guilt. verdict of deliberating give We general would instruc presume jurors jury tion that should not follow the court’s in- consider the punishment Ramirez, consequences structions. State v. which 178 Ariz. might subject be convicted. con Consequently, tends that the jury failure to instruct the on we find no reversible error in the failure to the actual effect of an NGBRI verdict violat give an NGBRI instruction. rights

ed his process to due and a fair trial. IV. SENTENCING ISSUES jury 206 The failure to instruct the ¶ Moody sentenced death under consequences on the of an NGBRI verdict is procedure Ring found unconstitutional in v. not, itself, Doss, error. 116 Ariz. Arizona, 536 U.S. S.Ct. (1977) (citing II”). II, Jensen, (“Ring L.Ed.2d Ring In 531 P.2d 531 (1975), Peats, Supreme the United States and State Court held that (1970)). Rather, capital P.2d 238 Arizona’s former sentencing decision to scheme “[t]he jury refuse a instruction is within the trial violated the defendant’s Sixth Amendment discretion, court’s and this right court will not to trial. Id. at 122 S.Ct. im- so, respect with to the sentences doing harmless 2428.17 Court held posed by judge defendants “are entitled determina- case. *43 legislature of fact on which the tion pun- in maximum conditions an increase their Aggravating A. Circumstances at 122 The

ishment.” Id. S.Ct. 2428. 1. Prior Convictions pro- case further Court remanded the for ceedings Id. at consistent with its decision. ¶214 § Arizona Revised Statutes 13- 609, 122 2428. S.Ct. 703(F)(1) aggravating as an circum- lists ¶210 Moody’s one of several case was has convict- stance that the “defendant been re penalty death cases we consolidated on ed of another offense in the United States for Ring required II mand to determine whether a sentence of life which under Arizona law or vacatur of the sentences. reversal death In imprisonment imposable.” death or ¶¶ 5-6, Ring, v. 204 Ariz. ease, jury’s the this the trial court found that III”). (2003) (“Ring re P.3d We guilt verdict of as to Michelle Malone’s mur- imposed the under Arizona’s view sentence aggravating factor for the der satisfied this superseded capital sentencing statute for conviction, Magda and that the Patricia ¶ 53, at at harmless error. Id. Magda jury’s guilt mur- verdict of as the 936. der satisfied the factor for the Malone con- aggravation/mitigation hearing 211 An in Moody argues viction. that because the con- Moody’s over the course case conducted time, at neither of victions occurred the same January days of in and three December 2001 can as these convictions serve an historical verdict, In special 2002. the court found the prior conviction for the other. following aggravating re- the factors with (1) spect to both murders: had been ¶215 This has the court held separate life convicted of a offense which order the crimes or of convictions themselves imposable, § 13- imprisonment was AR.S. Lee, important. 189 Ariz. is not See State 703(F)(1) (1993); (2) committed mur- the (1997). 590, 604, 1204, 1218 pecuniary expectation gain, of id. ders inquiry is the convictions relevant whether (3) 13-703(F)(5); § and he committed the sentencing hearing. were entered before the cruel, especially in an murders heinous Id. convictions were entered before 13-703(F)(6). manner, § depraved id. sentencing hearing. Consequently, there ¶ Moody mitigating alleged eleven cir- allowing each murder to was no error be these, the found cumstances. Of trial court prior respect used as a offense with serious (1) (2) record, good four: lack of criminal murder. the other (3) life, military professional in his character legal also con- 216 We have affirmed service, nonviolent character and lack clusion a murder conviction is one “for history. Weighing four prior violent which under Arizona law a sentence of life proven against mitigating circumstances imprisonment imposable” with- or death was circumstances, aggravating the court three jury finding. remanding out mitigators “insufficient call for found Nordstrom, 242, 245, 7, 77 P.3d leniency.” imposed The court sentences concedes for the of Michelle Malone death murders (F)(1) factor falls court has held that Magda. and Patricia Ring and does not re- outside the mandate III, judi- Ring we concluded III, Ring quire jury finding. See fact-finding capital sentencing pro- cial ¶ 55, 937; P.3d at see also State at may can harmless error if we cess constitute ¶ 6, Lehr, beyond a that no conclude reasonable doubt the issue. to reexamine We decline aggra- fail to find the reasonable would upon other which raises no basis at vating circumstance. finding might ¶¶ the trial court’s 53, 102-04, disturb 946. now We (F)(1) proven aggravating factor was be- Ring II examine error was whether juries. See 2002 legislature capital sen- tal cases are now tried before 17. The has amended Laws, Sess., 1, § Spec. ch. tencing sentencing capi- 5th Ariz. Sess. statute so that factors television, microwave, jewelry, yond a reasonable doubt as to both murders. small ruling. affirm this therefore We behind at the murder cocaine were left one of scenes. 2. Pecuniary Gain ¶ 220 We will not deem harmless the find- statutory aggrava It is a (F)(5) ing aggravating of an if circum- factor ting factor in Arizona that the defendant credibility stantial evidence witness “committed the offense as consideration for weighed differently by be could reasonable expectation receipt, receipt, or in they sentencing judge. than were pecuniary anything value.” A.R.S. *44 ¶ Hoskins, 574, 6, 572, v. 204 State Ariz. 65 703(F)(5). § only This factor is satisfied 13— (2003); 953, P.3d 955 see also v. Rut- State “if expectation pecuniary gain of ais ¶ 172, 175, 14, 443, ledge, 206 Ariz. 76 P.3d motive, cause, impetus or for the murder and (2003). Moody pecuniary 446 a That had merely a of the result murder.” State v. Magda motive to murder Malone and is a 252, 280, 655, Hyde, 186 Ariz. 921 P.2d 683 may plausible inference that drawn from enough merely It is not to show that be evidence, property money a defendant took or after a the circumstantial is not the but Wallace, murder occurred. State v. 151 Ariz. may inference be reasonable that drawn. 362, 368, 232, (1986) (citing 728 P.2d differently Because a reasonable could Gillies, 512, 500, v. 135 Ariz. State P.2d upon assess the evidence which the trial 1007, (1983)); see also v. Arm State judge pecuniary gain finding, based his we 360, 363, strong, n. 93 P.3d that finding cannot conclude the trial court’s 1076, 1079 (2004) n. 2 (confirming this court’s (F)(5) of the factor was harmless. application Hyde and Wallace stan dards). (F)(5) inquiry “highly The fact- Heinous, Cruel, Especially or De- requires intensive” and the state to “estab praved lish the connection between the murder and through strong motive direct or circumstan may aggra 221 A murder also be III, Ring tial evidence.” Ariz. at vated if a defendant “committed offense ¶ 76, Cañez, 941 (citing 65 P.3d at v. State heinous, an especially depraved or cruel ¶ 94, 13-703(F)(6). § manner.” To A.R.S. estab (2002)). factor, prove lish the state at must least components beyond one these three ¶218 case, In this the trial court Cropper, reasonable State doubt. pecuniary gain found the factor based on 153, 156, 11, three considerations: at the of the mur time ders, judge The trial suffering found that both murders “severe financial difficulty”; Moody especially entered cruel the Malone and were and that both demon Magda purpose obtaining homes “for the “especial depravity.” strated heinousness or value”; property of property and the ob “shortly tained from those homes was used Especially a. Cruel each after of the murders ... to obtain ¶222 judge The trial first found that cash.” both espe committed murders an response, Moody 219 In notes that these cially Knapp, cruel manner. we questions all are of fact that a could “disposed pain “cruel” as inflict defined differently resolve than trial judge. did the esp. wanton, in a insensate or vindictive man presented The defense team evidence at trial ner: sadistic.” 114 Ariz. suffering dys- that from brain (1977) (quoting Webster’s Third function, psychosis, identity- and dissociative Physical New Dictionary). International disorder, and that he was in a “dissociative cruelty consciously expe exists if “the victim state” the time the murders. Addition- physical prior or pain rienced mental ally, there was substantial at trial evidence death, and the defendant knew should had used “massive amounts” suffering have known occur.” would cocaine at some before murders time and Trostle, heavy cocaine use can to violent lead (1997)(citations omitted). Finally, there was that a behavior. evidence murder, both, beyond a reason- conclude cannot 223 As Malone jury could not judge doubt that a reasonable trial found evidence of defensive able hand, fingernail, on this wound to her broken other than the trial court did find lens, house, throughout lost contact blood Consequently, we cannot affirm the issue. to “establish that cruelty and admissions finding special as trial court’s struggle Mr. there was a violent before either count. by tying her subdued Ms. Malone into judge Especially Depraved Heinous chair.” also considered the b. and knew and he knew fact Malone ¶227 judge The trial also found survived, identify him if she could she especially that both were heinous murders multiple suggested she the evidence suffered forth five depraved. case law sets Our death, injuries her inflicted before factors that be considered deter should gesture in a she raised her hand defensive (1) mining depravity: heinousness against first bullet. The court defend murder, whether the relished defendant clearly concluded that “Michelle Malone was violence, gratuitous whether inflicted point,” at least that and that *45 conscious until (3) needlessly the bod whether he mutilated espe Michelle Malone was murder of “[t]he (4) ies, senseless, the crimes were whether cruel, cially consciously she suffered because helpless. the and whether victims were fairly physical pain anguish and mental for Gretzler, 42, 52, time, clearly period of prolonged and the suffering.” of her Defendant knew ¶228 case, trial In this the court ¶ Magda suf 224 As evidence that deprav findings of and based its heinousness pain, judge fered found violence, ity gratuitous on the use of up tightly her neckties and cords tied with murders, help and senselessness of enough arms to leave marks on her and found that lessness the victims. court Further, Moody went to the wrists. because than involved more violence both murders Magda twice communicated with bank and gunshot necessary cause four was to death: returning, trial times after court both injuries multiple and to Malone’s wounds Magda con concluded that must have been twenty-four injuries body, and blunt force suffering period and for some of time. scious injuries sharp to to and nine fourteen force Ultimately, “[t]he court concluded that judge found both Magda’s body. The surely an ... caused her prolonged ordeal because it was not neces murders senseless physical anguish due the restraints guish: to accomplish kill sary to victims anguish immobility and her and mental due property, he found the theft of their and knowl uncertainty of her and the fate helpless they because were bound victims was she edge that the defendant aware could and restrained. identify sur him as her attacker she ¶229 gratuitous Regarding vived.” violence expert able finding, this case no ¶ facts, on these we conclude Based injuries pinpoint exactly which caused the jury that Ma- that no reasonable could find victim, and never death of each the State “experienee[ physical or mental ] lone did Moody knew attempted establish that Trostle, 191 Ariz. prior death.” See pain each death. which shots or blows caused could 951 P.2d at 883. The same be at Consequently, conclude that a reasonable we Magda. said might at a conclusion jury arrive different However, an contains Trostle judge did on whether the State than the trial requirement: that “the defendant additional gratuitous inflicted established suffering known that knew or should have violence. pre Because evidence was would occur.” Id. ¶230 if we Even could conclude Moody was in a “dissociated sented to find the no could fail psychosis, drug impairment, or reasonable due to state” during the infliction of timing regarding that she was conscious 18. Because the uncertain body, them in the puncture Magda’s wounds did not consider many and wounds on (F)(6) say beyond examination. a reasonable doubt court could not factors, significantly im- helplessness impaired, senselessness and with- was but not so prosecu- gratuitous paired factor the as to constitute defense to out the violence other 13-703(G)(1). § tion.” A.R.S. The remain- substantially weighty: are factors less non-statutory: any prior der were his lack of helplessness pro- and are less “Senselessness history, parent- criminal character for good bative of mind than defendant’s state life, ing, good professional in his character violence, relishing, gratuitous are and mutila- service, stressors, military psychosocial co- Hyde, tion.” 921 P.2d at at addiction, caine use and nonviolent character “Therefore, helpless- senselessness and prior history, and lack of violent correlation ness, factors, presence without the of other physical as a between abuse child and subse- usually depravity are insufficient to establish adult, quent an substance abuse as the inabil- Prince, beyond a reasonable doubt.” ity appreciate the nature and conse- 114, 117 (2003). actions, quences nonviolent, of his and a law- regarding As was true the intention- abiding character. ally component, cruel cannot affirm an ¶234 judge The trial found four of the (F)(6) finding findings based on of intention- record, mitigating factors: lack criminal ally depraved heinous or acts unless we can good professional life, character in mili- that no conclude reasonable could arrive tary service, history. prior lack violent at a judge different conclusion than the trial them, however, gave He weight little See, e.g., id. did. 75 P.3d at 118. they concluded that were insufficient to call cruel, heinous, Ultimately, depraved leniency. aggravator depends on the defendant’s state conflicting *46 Based evidence of mind and the of assessment sometimes issues, this record on we these cannot con- See, conflicting 27, 9, e.g., facts. id. at beyond clude no reasonable doubt that 117; Cropper, P.3d at Ariz. at jury rational would find other than as the factor). (analyzing cruelty 76 P.3d at 427 judge jury might A reasonable found. Moody’s hotly Because mental state was con- mitigating have found additional or factors throughout sentencing, tested trial and we weighed differently mitigating factors beyond cannot conclude reasonable doubt say beyond that were found. also cannot We jury that no accept argu- would the defense’s if a reasonable doubt that had found requisite ment that lacked the state mitigating additional circumstances satisfy of mind to aggravator. weighed mitigating circumstances differ- ently, it have would not found them “suffi- Mitigating B. Factors ciently leniency.” substantial call for ¶232 inquiry Our error harmless 13-703(E). Therefore, we A.R.S. conclude does end with an examination of the Ring that the II was not in error harmless aggravating circumstances. Because we can this case. capital affirm sentence we can con beyond a clude doubt “that no reasonable V. CONCLUSION rational trier of fact would determine that reasons, foregoing 236 For the we affirm mitigating circumstances were sufficient Moody’s degree convictions the first mur- for ly leniency,” to call substantial we must Magda. of Michelle and Patricia ders Malone also consider whether reversible error oc However, because cannot find harmless respect with mitigating curred circum sentencing procedure, in error his we vacate III, Ring stances. 204 Ariz. at Moody’s death sentence and remand this P.3d at jury resentencing pursuant case to A.R.S. ¶233 hearing, Moody At his sentencing §§ 13-703 and -703.01. mitigating offered eleven circumstances for McGREGOR, the court’s consideration. One of these was CONCURRING: RUTH V. statutory “capacity appreciate Justice, RYAN, Vice Chief MICHAEL D. —that wrongfulness WEISBERG, of his conduct or to con- H. Justice and SHELDON requirements Judge form his conduct to *. law

* The Honorable Andrew D. recused him- self. Pursuant to Article Section 3 of the Hurwitz Justice,

JONES, concurring part, Chief

dissenting part. judgment 237 I concur court re- convictions and the

both as dissent, however, I resentencing.

mand for majority’s that harmless

from the conclusion analysis appropriate where sentenc-

error determinations, findings

ing including factual circumstances, aggravating are made

on judge jury. I in the absence resentencing remand the case for sole-

would

ly on Amendment the basis Sixth right to trial

violation

statutory aggravating factors relative Armstrong, penalty. See

death ¶¶ 25-37, (sup- (Jones, C.J., opinion) concurring in

plemental dissenting part);

part and see also State ¶¶ 232, 241-42, 40-46, 77

Sansing, 206 Ariz. (2003) (Jones, C.J., dissent- 39-40

ing).

94 P.3d 1169 Arizona, Petitioner/Appellant,

STATE *47 SHIPMAN, Judge of the

Hon. Charles Court, Valley in and of

Green Justice Pima, Respondent, County Party Sweeney, Real

Thomas John Interest/Appellee.

No. 2 2002-0158. CA-CV Arizona, Appeals

Court 2, Department B.

Division

Aug. LaWall, Attorney, County Pima

Barbara Tucson, Hurley, for Petition- By Elizabeth er/Appellant. Offices, By James

Zohlmann Law Robert Zohlmann, Arivaca, Party in Inter- for Real est/Appellee. One, Constitution, designated Appeals, to sit in H. Division the Honorable Sheldon

Arizona place. Weisberg, Judge Hurwitz’s of the Arizona Court of Justice Chief notes granting competency a second hearing, competency the standard for Dusky under “there ground must be some reasonable States, United 362 U.S. 80 S.Ct. justify hearing another previous- facts not (1960), two-pronged: L.Ed.2d 824 court”). ly presented to the trial (1) court must be satisfied that the defendant presume 49 We that a court is present ability has a “sufficient to consult aware of applies the relevant law and lawyer with degree his with a reasonable correctly in arriving at ruling. its See State understanding” rational that he has Medrano, “rational as well understanding as factual mind, presumption With this proceedings against him.” claims Moody’s contention judge’s pre that the trial applied only the trial court the second trial review of the competency record on part of ignored that standard and whether he private an unlawful “competency hearing” ability had the to assist counsel when it rejected. Rather, must be the record re hearing. denied his motion for a Rule 11 flects that judge’s actions were con argument bases his on the trial sistent obligation with his under Rule 11.2 to judge’s “Moody statement knows who seek grounds” “reasonable ordering before is, lawyer is, his judge he knows who the subsequent competency evaluation. Each judge certainly is, time the denied a defense knows who Mr. motion White and he competency hearing, he indicated that charged knows what he’s with.” Goldberg him, prepared report detailing 4. Dr. memory the tests administered to days meetings observations he made after four average, recognized

Notes

of notes have been no “there would him. re-interview against Krone.” 897 missible case Id. P.2d at 624. trial, Moody allowed Dr. Sul- 113 Before him that to interview on the condition livan that has not demonstrated Immediately after the doctor not take notes. case. circumstances exist in this similar interview, Dr. Sullivan dictat- concluding suggestion what Moody’s brief contains no of report. report Dr. was dis- ed Sullivan’s notes, explanation no in the doctor’s to two weeks before closed defense counsel all, how, prejudiced if at disclosure late prepare inter- trial so that counsel could to him, whether the notes and no indication Dr. counsel inter- view Sullivan. Defense revealed information that differed from trial and viewed Dr. Sullivan once before during attorney’s explored two interviews his May Dr. again on week Sullivan before Consequently, we cannot Dr. Sullivan. testify. May At to was scheduled say trial abused discretion that the court its interview, Dr. learned that defense counsel failing preclude Dr. Sullivan’s testimo- compiled forty pages of hand- had Sullivan ny. interview, following first written notes trial. notes were dis- preparation for These Evidentiary Rulings J. days to the defense two after closed Moody argues that trial court interview, did have defense counsel but admitting three Dr. its discretion opportunity an to re-interview Sullivan abused (1) showing pieces pawn slips after their disclosure and therefore moved of evidence: testifying. from preclude Dr. Sullivan sold various items between Janu- of that motion now claims denial (2) 16,1993; ary 11,1993 Detec- and October con- was error and warrants reversal Wright’s personal opinion tive victions. DNA, blood, handwriting, and guilt; and never evidence that was released ballistic impose 114 Whether to a sanc testing. independent sanction to tion late disclosure and which discretionary left to the impose are decisions Slips The Pawn court; will not those deci we disturb v. sions absent an abuse discretion. State 11, 2004, May On the State Tucker, P.2d 157 Ariz. Ganem, the owner of the Cash called James re Preclusion “a sanction last Company, intro Jewelry Box and Pawn sort,” Talmadge, v. State pawned at his pawn slips for items duce two (2000), imposed only to be shotgun and a 12-gauge store: a Winchester stringent are not if “other less sanctions Ruger He pistol. .22 caliber verified Smith, applicable.” knowledge of who had actual someone P.2d slips filled them information recorded on ¶ Moody suggesting cites one case during regular out course of business. relating failure disclose evidence 803(6) (excluding R. certain See Ariz. Evid. might require preclusion of that a witness rule). hearsay business records from Krone, witness. In State objection. Also They were admitted without (1995), 321-23, held 623-25 police re accompanying admitted were the