SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-02-0044-AP 

 Appellee, ) 

 ) Pima County 

 v. ) Superior Court 

 ) No. CR-43804 

ROBERT JOE MOODY, ) 

 ) O P I N I O N 

 Appellant. ) 

__________________________________) 

Appeal from the Superior Court in Pima County 

The Honorable Michael J. Cruikshank, Judge 

CONVICTIONS AFFIRMED; 

SENTENCE VACATED AND REMANDED 

JANET A. NAPOLITANO, FORMER ARIZONA ATTORNEY GENERAL Phoenix 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL 

by Kent E. Cattani, Chief Counsel, 

 Capital Litigation Section 

and Donna J. Lam, Assistant Attorney General Tucson 

Attorneys for State of Arizona, Appellee 

SUSAN A. KETTLEWELL, PIMA COUNTY PUBLIC 

DEFENDER’S OFFICE Tucson 

by Frank P. Leto, Deputy Public Defender 

and Brian X. Metcalf, Deputy Public Defender 

Attorneys for Robert Joe Moody, Appellant 

B E R C H, Justice 

¶1 In 2001, Appellant Robert Joe Moody was convicted of 

two counts of first degree murder for the deaths of Michelle 

Malone and Patricia Magda. The trial judge sentenced him to 

death pursuant to Arizona Revised Statutes (“A.R.S.”) § 13-703 
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(Supp. 1993). An automatic Notice of Appeal was filed pursuant 

to Rule 31.2(b) of the Arizona Rules of Criminal Procedure. 

This court has jurisdiction under Article 6, Section 5(3) of the 

Arizona Constitution and A.R.S. § 13-4031 (2001). 

I. FACTS1

¶2 On November 15, 1993, Robert Moody drove to the home 

of his ex-girlfriend’s friend, Michelle Malone. After 

ascertaining that Malone was alone, Moody knocked on the door. 

Malone answered and let him in.

¶3 Moody followed Malone into the kitchen. There, he 

pulled a kitchen knife from his coat pocket and attacked her. 

Malone tried to defend herself, cutting her hand in the process. 

Moody held Malone by the neck and forced her into her home 

office, where he emptied her purse and took cash, a checkbook, 

and some credit cards. He ordered Malone to write a check for 

$500. Because that check was smeared with blood, he made her 

 

1

 On appeal, this court views the facts presented in the 

trial court “in the light most favorable to sustaining the 

verdict.” State v. Dann, 205 Ariz. 557, 562 n.1, 74 P.3d 231, 

236 n.1 (2003) (citing State v. Gallegos, 178 Ariz. 1, 9, 870 

P.2d 1097, 1105 (1994)). Many of the facts are reprinted from 

the court’s earlier decision in this case, which is reported at 

State v. Moody, 192 Ariz. 505, 506, ¶¶ 2-6, 968 P.2d 578, 579 

(1998). We reproduce the facts in substantial part because they 

are necessary to the disposition of some of the issues raised in 

this appeal, adding others as necessary for a complete 

understanding of new issues raised. 
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write another.

¶4 He then forced Malone back to the kitchen and tied her 

to a chair with some telephone cords that he had ripped from the 

wall. He dragged her – still tied to the chair – into a 

bedroom, where he found a .22 caliber rifle and a Winchester 12-

gauge shotgun in a closet. He hit Malone over her head with a 

BB gun, then shot her several times with the .22 caliber rifle, 

re-loading between each shot. After shooting Malone, Moody 

found a Ruger .22 caliber pistol in a chest of drawers and 

placed the pistol in his pocket. He then wrapped the rifle and 

shotgun in a blanket and drove home and went to sleep.

¶5 Five days later, Moody went next door to Patricia 

Magda’s home. After they talked for a while and smoked a few 

cigarettes, Moody followed Magda down a hallway to see a 

Christmas calendar she had made. Moody pushed her to the floor, 

then bound her wrists and ankles with neckties he had brought 

with him. In the kitchen, he found Magda’s purse, from which he 

took cash and credit cards. After yanking the phone cords from 

the wall, Moody returned to Magda and demanded the personal 

identification number (“PIN”) for her bank card. After she gave 

him a number, he tied her up, covered her with a rug and weighed 

her down by putting a chair on her.

¶6 Moody drove Magda’s car to a Bank of America and tried 
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to withdraw money using her bank card. When he was unable to 

get any money, he returned to Magda’s home and again demanded 

her PIN number. He went back to the bank and withdrew $300. He 

then returned to Magda’s home, slit her throat, stabbed her in 

the back, and bludgeoned her to death with hedge clippers. He 

removed the neckties he had used to bind her, wrapped them in a 

towel in the kitchen, and left the house. He put his luggage 

into Magda’s car and drove away.

¶7 About a month later, on December 20, 1993, Moody broke 

and climbed through a kitchen window into the Yuma, Arizona home 

of Mary DeForest, his ex-wife’s sister. After demanding cash 

and guns, Moody tied DeForest up, ordered her and her two sons 

into a closet, and nailed the door shut. He took DeForest’s 

purse and left in her Suburban, leaving Magda’s car behind.

¶8 After leaving DeForest’s house, Moody drove to Las 

Vegas before eventually proceeding to California. At 

approximately 3:00 a.m. on January 4, 1994, Moody flagged down 

San Bernadino County Deputy Joseph Duarte in Baker, California. 

Moody identified himself to Deputy Duarte as “Todd Joe Williams” 

and claimed that his car had been stolen about three hours 

earlier by a black male hitchhiker he had picked up outside of 

Las Vegas. When asked for specific information about the 

vehicle, Moody could say only that it was a blue and gray 
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Suburban. He was unable to give the officer a vehicle 

identification number, license plate number, or any other 

information. Deputy Duarte took Moody to the Sheriff’s Office 

for further questioning. When Moody was unable to provide any 

further information regarding the vehicle, he was released.

¶9 Between 4:00 and 4:30 p.m. that same day, Moody 

appeared at a rescue mission in Santa Ana, California. He told 

the mission’s director, Reverend James Womack, that he had no 

idea who he was or where he was from, although he thought his 

name was Bob. Reverend Womack advised him to contact the 

police.

¶10 Approximately two hours later, a paroled felon named 

Carlos Logan was arrested outside the Los Angeles Airport for 

driving Mary DeForest’s stolen Suburban.

¶11 The next morning, January 5, 1994, Moody went to the 

Orange County Sheriff’s Department and told two uniformed police 

officers that he had amnesia and knew only that his first name 

was Bob. The officers fingerprinted him, leading to the 

discovery of warrants for the murders of Michelle Malone and 

Patricia Magda. The officers arrested Moody and told him that 

he had killed two people. Looking confused, Moody replied, “I 

did?” Later that day, Tucson Police Department Detective Karen 

Wright and Pima County Sheriff’s Department Detectives Michael 
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Ying and Bryce Tipling flew to California to interview Moody on 

videotape before transporting him to Tucson. Throughout the 

interview, Moody maintained that he woke up on a bench on 

January 4th, did not know how he got there or who he was, and 

had no memory of events before 12:30 p.m. of that day. Moody 

was then returned to Arizona to stand trial for the murders of 

Michelle Malone and Patricia Magda.

II. PROCEDURAL HISTORY

¶12 On February 1, 1994, the State presented evidence of 

the murders of Michelle Malone and Patricia Magda to a grand 

jury. At that hearing, Tucson Police Detective Karen Wright 

testified that Carlos Logan, the paroled felon who was arrested 

for driving Mary DeForest’s Suburban, had informed detectives 

that he had traded cocaine for the car with the vehicle’s owner, 

a white male named “Bob,” who had bragged at the time about 

killing two people in Tucson and being profiled on “America’s 

Most Wanted.” The grand jury indicted Moody for the two 

murders.

¶13 Pima County Public Defender Daniel Grills was 

appointed to represent Moody. On June 21, 1995, at Moody’s 

demand, Grills filed a motion to withdraw as counsel. Moody 

later filed a motion waiving his right to counsel and asserting 

his right to represent himself. On July 13, 1995, the court had 
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a hearing on the motions at which Moody testified to his desire 

to represent himself. The court found his waiver of counsel 

knowing, intelligent, and voluntary. The case proceeded to 

trial and Moody defended himself solely on the ground that his 

participation in the crimes was involuntary because aliens took 

control of his body and made him kill Michelle Malone and 

Patricia Magda, rendering Moody a mere unconscious observer of 

the murders. He was convicted on both counts and was sentenced 

to death after an aggravation and mitigation hearing.

¶14 On appeal, this court found that Moody was denied his 

right to counsel and reversed his convictions and remanded the 

case for a new trial. State v. Moody, 192 Ariz. 505, 509, ¶ 24, 

968 P.2d 578, 582 (1998). Moody was retried in May 2001. For 

the retrial, John Seamon was appointed to represent Moody. He 

filed several motions to determine Moody’s competency. After a 

hearing on the eve of trial, the court found no reason to 

question Moody’s competency to stand trial, confirming earlier 

rulings to the same effect. Moody immediately announced that he 

would not attend his trial because it was “illegal.”

¶15 Jury selection in Moody’s second trial began the next 

day. After a fifteen-day trial, the jury again convicted Moody 

of both murders.

¶16 Following an aggravation/mitigation hearing, the trial 
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judge found the multiple conviction, pecuniary gain, and 

especially cruel, heinous or depraved aggravating factors 

applicable to both murders. The court found that the defense 

failed to prove any statutory mitigating factors, but did prove 

four non-statutory mitigating factors: lack of prior criminal 

history, good employment history, military service, and nonviolent character. But weighing the mitigating factors against 

the three aggravating factors, the court concluded that they 

were insufficient to call for leniency and imposed a sentence of 

death for each homicide.

III. TRIAL ISSUES 

A. Double Jeopardy Bar of the Second Trial

¶17 Moody argues that the second trial should have been 

barred by the Double Jeopardy Clauses of the United States and 

Arizona Constitutions. See U.S. Const. amend. V; Ariz. Const. 

art. 2, § 10. He makes two separate double jeopardy arguments. 

First, he argues that double jeopardy should have barred retrial 

because the prosecutor committed egregious misconduct in the 

first trial. Alternatively, he argues that the principles of 

double jeopardy should have prevented the State from improving 

its case at the second trial.

 1. Double Jeopardy Bar of Retrial

¶18 Whether double jeopardy bars retrial is a question of 
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law, which we review de novo. State v. Siddle, 202 Ariz. 512, 

515, ¶ 7, 47 P.3d 1150, 1153 (App. 2002).

¶19 Two months before his second trial, Moody filed a 

motion to dismiss the case and preclude retrial because of 

prosecutorial misconduct occurring before and during his first 

trial. Moody claimed that the prosecutor committed misconduct 

in the first trial by providing false information to the mental 

health experts and intentionally interfering with his 

relationship with his attorney. Consequently, he argued, the 

principles of double jeopardy should have barred retrial. The 

motion was denied and the case proceeded to trial. Moody raises 

this claim again on appeal.

¶20 Traditionally, this court has extended double jeopardy 

protection based on prosecutorial misconduct only to cases in 

which the defendant moves for mistrial on those grounds. See 

Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-

72 (1984) (holding that “jeopardy attaches under art. 2, § 10 of 

the Arizona Constitution when a mistrial is granted” and other 

specified conditions are met); see also State v. Jorgenson, 198 

Ariz. 390, 392, ¶ 7, 10 P.3d 1177, 1179 (2000) (extending Pool

to cases in which the mistrial motion was meritorious and should 

have been granted). Moody filed no such motion in his first 

trial, and the convictions arising out of that trial were 
- 10 -

reversed for deprivation of counsel, not prosecutorial 

misconduct. Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d at 582. 

Thus, Moody relies on the only case in which double jeopardy 

protections have been applied in the absence of a motion for a 

mistrial: State v. Minnitt, 203 Ariz. 431, 55 P.3d 774 (2002).

¶21 In Minnitt, we held that double jeopardy barred the 

retrial of a defendant whose convictions were procured by false 

and perjured testimony that the prosecutor placed before the 

jury with full knowledge of its perjurious character and of the 

likelihood that it would support a conviction. Id. at 439-40, 

¶¶ 37-45, 55 P.3d at 782-83. Our holding in that case was 

expressly conditioned on the prosecution’s concealment of the 

misconduct; we reasoned that the misconduct in that case would 

have warranted a mistrial had it been discovered. Id. at 439, ¶ 

35, 55 P.3d at 782 (holding that a mistrial is not a 

prerequisite for a double jeopardy claim if a prosecutor 

“engages in egregious conduct sufficient to require a mistrial 

but manages to conceal his conduct until after trial”). Moody 

does not claim that the misconduct of which he now complains — 

offering false evidence before the grand jury and interfering 

with his relationship with counsel — was concealed as was the 

conduct in Minnitt. Additionally, while Minnitt could point to 

places in the trial at which a mistrial would have been 
- 11 -

appropriate had the misconduct been overt, Moody has made no 

such assertion regarding his first trial. In short, not only 

did Moody fail to move for a mistrial, but he has failed to 

demonstrate that a mistrial would ever have been appropriate. 

Consequently, our holding in Minnitt offers Moody no refuge from 

the requirement that a motion for a mistrial based on 

prosecutorial misconduct be made during trial to preserve the 

issue for appeal. This issue therefore is not properly before 

us.

¶22 Minnitt also differs in one other important respect: 

after the trial court denied his motion to dismiss on double 

jeopardy grounds, Minnitt filed a special action seeking review 

of that decision. Id. at 437, ¶ 24, 55 P.3d at 780. Our courts 

have held that “a petition for special action is the appropriate 

vehicle for a defendant to obtain judicial appellate review of 

an interlocutory double jeopardy claim.” Nalbandian v. Superior 

Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App. 1989). The 

reasons underlying the preference for special action review of 

denials of motions to dismiss based on double jeopardy are 

obvious: Because the Double Jeopardy Clause guarantees the 

right to be free from subsequent prosecution, the clause is 

violated by the mere commencement of retrial. See Abney v. 

United States, 431 U.S. 651, 660-61 (1977) (observing that 
- 12 -

appellate review of a double jeopardy claim before retrial may 

prevent “personal strain, public embarrassment, and expense of a 

criminal trial” caused by a retrial eventually overturned on 

double jeopardy grounds).

¶23 This court has never reviewed a double jeopardy claim 

based on prosecutorial misconduct if the defendant had not 

previously moved for mistrial or sought relief by special action 

from the trial court’s denial of his motion to dismiss on those 

grounds. Moody provides no compelling reasons to diverge from 

this practice.

 2. Improvement of the State’s Case on Retrial

¶24 In addition to filing a pretrial motion to dismiss 

based on double jeopardy grounds, the defense also sought to 

preclude the State from offering any evidence on retrial that it 

had not offered at the first trial, claiming that double 

jeopardy principles prevented the State from improving its case 

on retrial. At Moody’s second trial, the State presented 

testimonial and physical evidence that it did not offer at the 

first trial. Additionally, after relying solely on 

premeditation at the first trial, the State added felony murder 

theories as to both murders on retrial. Moody now argues that 

the admission of this new evidence and the addition of the 

felony murder theories in the second trial violated his 
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constitutional protection against double jeopardy.

¶25 Moody relies on the United States Supreme Court’s 

opinion in Burks v. United States, 437 U.S. 1, 11 (1978), for 

the proposition that the use of new evidence in a retrial 

violates both federal and state double jeopardy protections. 

His reading of Burks is flawed. Burks states that “[t]he Double 

Jeopardy Clause forbids a second trial for the purpose of 

affording the prosecution another opportunity to supply evidence 

which it failed to muster in the first proceeding.” Id. Giving 

full effect to the phrase “for the purpose of” makes clear that 

Burks applies only to cases reversed for insufficiency of the 

evidence. See id. In such cases, the state cannot be allowed a 

second opportunity to prove a defendant guilty. Id.

¶26 In contrast, the Supreme Court has held that in all 

cases but those reversed on grounds of insufficient evidence, 

the Double Jeopardy Clause “imposes no limitations whatever upon 

the power to retry a defendant who has succeeded in getting his 

first conviction set aside.” North Carolina v. Pearce, 395 U.S. 

711, 719-20 (1969), overruled on other grounds by Alabama v. 

Smith, 490 U.S. 794 (1989). When a case is reversed for any 

reason but insufficient evidence, “the original conviction has 

been nullified and ‘the slate wiped clean.’” Bullington v. 

Missouri, 451 U.S. 430, 442 (1981) (quoting Pearce, 395 U.S. at 
- 14 -

721). While neither case specifically addresses the 

presentation of additional evidence, it follows that if the 

slate is “wiped clean,” the state is not limited to using 

evidence presented at the first trial. See Bullington, 451 U.S. 

at 442; Pearce, 395 U.S. at 721; see also Tibbs v. Florida, 457 

U.S. 31, 43 n.19 (1982) (recognizing that “[a] second chance for 

the defendant . . . inevitably affords the prosecutor a second 

try as well,” and that “new evidence or advance understanding of 

the defendant’s trial strategy will make the State’s case even 

stronger during a second trial than it was at the first”).

¶27 Moody’s case, on the other hand, was reversed for 

deprivation of counsel. The sufficiency of the evidence of 

guilt was not at issue. Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d 

at 582. Consequently, we find no abuse of discretion in the 

court’s refusal to restrict the State to evidence it offered in 

the first trial.

¶28 Finally, Moody contends that the State violated double 

jeopardy principles by adding a felony murder theory in the 

second trial after relying solely on a premeditated murder 

theory in the first trial. Moody relies on Thompson v. 

Calderon, 120 F.3d 1045, 1055-59 (9th Cir. 1997) (en banc), 

rev’d on other grounds, 523 U.S. 538 (1998), in claiming that 

the use of fundamentally inconsistent theories at the two trials 
- 15 -

violates a defendant’s right to due process. Moody’s reliance 

is misplaced, however, because Thompson involved a prosecutor 

who proceeded on conflicting theories in separate trials of codefendants. See id. at 1055-57. That case turned on the 

prosecutor’s actions of “manipulat[ing] evidence and witnesses, 

argu[ing] inconsistent motives, and at [the second defendant’s 

trial], essentially ridicul[ing] the theory he had used to 

obtain a conviction and death sentence at Thompson’s trial.” 

Id. at 1057. Moody is only one person, and the theories offered 

are not necessarily inconsistent. Thus Thompson is inapposite.

¶29 Moody offers no other support for his argument that 

the State could not lawfully proceed on a felony murder theory 

in the second trial. Consequently, we conclude that the trial 

judge did not abuse his discretion in denying Moody’s motions to 

preclude the State from proceeding on felony murder theories at 

the second trial.2

B. Failure to Dismiss the Indictment

¶30 Moody argues that the trial court erred in failing to 

dismiss his indictment because it was based in part on evidence 

that the State knew or should have known was at least partly 

 

2

 Moreover, any prejudice to Moody is minimal because he was 

convicted of both premeditated murder and felony murder as to 

each victim at his second trial. 
- 16 -

false. At the grand jury hearing, Tucson Police Detective Karen 

Wright testified that after Carlos Logan was arrested for 

driving Mary DeForest’s stolen Suburban, he told police officers 

that he received the vehicle in a trade for cocaine with a man 

named “Bob” who bragged about killing two people in Tucson. 

Moody claims that this evidence was false and requests that we 

reverse his convictions because false evidence was used to 

procure his indictment.

¶31 Because Moody did not seek relief by special action 

from the trial court’s denial of his motion, our scope of review 

on direct appeal is limited. Arizona case law is clear that, 

with one exception, all challenges to a grand jury’s findings of 

probable cause must be made by motion followed by special action 

before trial; they are not reviewable on appeal. State v. 

Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995). That one 

exception to the rule occurs “when a defendant has had to stand 

trial on an indictment which the government knew was based 

partially on perjured, material testimony.” State v. Gortarez, 

141 Ariz. 254, 258, 686 P.2d 1224, 1228 (1984) (citing United 

States v. Basurto, 497 F.2d 781 (9th Cir. 1974)). Thus, on 

appeal we will review the indictment only to determine whether 
- 17 -

it was based on perjured, material testimony.3

¶32 In Basurto, the Ninth Circuit held that due process is 

violated if the government bases an indictment “partially on 

perjured testimony, when the perjured testimony is material, and 

when jeopardy has not attached.” 497 F.2d at 785 (emphasis 

added). Perjury is a “false sworn statement [a witness makes 

regarding] a material issue, believing [the statement] to be 

false.” A.R.S. § 13-2702(A)(1) (2001). To determine whether 

Basurto is implicated, we review each of Detective Wright’s 

statements to determine whether she committed perjury. 

¶33 Detective Wright’s first statement to the grand jury 

was that Carlos Logan told the arresting officer that he 

received the Suburban in a trade for cocaine. Moody concedes 

that Detective Wright accurately reported to the grand jury what 

Logan told the arresting officer. Thus, while the information 

 

3

 Moody argues that this court should reverse his convictions 

based on the prosecution’s knowing presentation of false 

evidence. See United States v. Mudarris, 695 F.2d 1182 (9th 

Cir. 1983) (holding that a defendant must prove “flagrant 

misconduct” to prevail on a challenge to an indictment). We do 

not address this claim, however, because Moody failed to raise 

it before trial. With the exception of a Basurto violation, a 

conviction precludes review of the finding of probable cause 

made by a grand jury. State v. Verive, 128 Ariz. 570, 575, 627 

P.2d 721, 726 (App. 1981) (noting that Basurto is the only 

exception to the rule that a “defendant cannot, by appeal from a 

conviction, obtain review of matters relevant only to the grand 

jury proceedings”). 
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that Carlos Logan gave to the arresting officer might have been 

false, Detective Wright’s reporting to the grand jury of that 

exchange between Logan and the arresting officer was not. 

Consequently, it was not perjurious and does not fall within the 

purview of Basurto, 497 F.2d at 784-86, and Gortarez, 141 Ariz. 

at 258, 686 P.2d at 1228. 

¶34 Regarding her second statement, Detective Wright 

conceded at a pretrial hearing that Carlos Logan never told 

either the arresting or interviewing officer that Moody 

identified himself to Logan as “Bob.” Detective Wright also 

admitted that the police reports did not specify Tucson as the 

location of the murders Moody allegedly bragged about 

committing. Thus, Detective Wright’s grand jury testimony was 

false on these two points. However, our inquiry does not end 

there. To constitute perjury, the false sworn statement must 

relate to a material issue and the witness must know of its 

falsity. A.R.S. § 13-2702(A)(1). 

¶35 A statement is material if it “could have affected the 

course or outcome of [a] proceeding.” A.R.S. § 13-2701(1) 

(2001). The unchallenged evidence offered at the grand jury 

proceeding was overwhelming: In addition to the “Bob” and 

“Tucson” information, the grand jury also heard that Moody knew 

Michelle Malone and may have purchased cocaine from her in the 
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past; that a bullet found at the Malone murder scene came from a 

rifle found at Moody’s residence; that after the murder, Moody 

pawned two guns taken from the Malone residence; that Moody 

lived next door to Patricia Magda and knew her; that Moody’s 

wallet was found in Magda’s car; that Magda’s car was found at 

DeForest’s Yuma, Arizona home; that Moody used Magda’s credit 

card and bank card; and that Carlos Logan was arrested for 

driving Mary DeForest’s stolen Suburban. 

¶36 Because substantial evidence supports the finding of 

probable cause, neither false statement could reasonably have 

affected the grand jury’s determination of probable cause. 

Thus, the requirement of materiality is not met as to the “Bob” 

and “Tucson” evidence. As such, these two statements by 

Detective Wright, although false in the sense that they do not 

appear in the arresting officer’s reports, do not constitute 

perjury. Consequently, Moody’s claim of a Basurto violation 

fails. 

¶37 In the alternative, Moody argues that his convictions 

should be reversed because the prosecutor allowed Moody’s trials 

to proceed knowing that the indictment was based in part on 

false evidence that had been presented to the grand jury. 

Citing Basurto, he asserts that the prosecutor should have 

disclosed this evidence to the court and to him upon discovery. 
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See 497 F.2d at 785-86 (“Whenever the prosecutor learns of any 

perjury committed before the grand jury, he is under a duty to 

immediately inform the court . . . .”). However, because no 

perjury was committed, the prosecutor violated no duty under 

Basurto. While a prosecutor must advise the court of false 

evidence presented at trial, cf. Ariz. R. Sup. Ct. 42, ER 

3.3(a)(3) and 3.8 cmt. 1, Moody has cited no authority 

suggesting that presentation of false testimony to the grand 

jury on non-material issues requires reversal after guilt has 

been proved beyond a reasonable doubt at trial. 

C. Denial of Fair Trial by Use of False Evidence

¶38 Moody asserts that the State denied him a fair trial 

by providing mental health experts with the transcript of the 

grand jury proceedings in which Detective Wright repeated the 

false Carlos Logan evidence. Moody claims that providing this 

evidence “tainted” the mental health experts’ opinions by 

suggesting that Moody’s actions were a product of cocaine 

addiction, not of mental illness. This evidence, he argues, 

caused the mental health experts to believe that any mental 

illness was therefore feigned. 

¶39 Challenges to the admissibility of evidence can be 

preserved only by a motion to preclude that evidence or by a 

specific, contemporaneous objection to its admission. State v. 
- 21 -

Bolton, 182 Ariz. 290, 306 n.5, 896 P.2d 830, 846 n.5 (1995). 

The motion or objection must state specific grounds in order to 

preserve the issue for appeal. See State v. Briggs, 112 Ariz. 

379, 382, 542 P.2d 804, 807 (1975). 

¶40 Moody filed a motion to preclude Dr. Potts’ testimony, 

but that motion was based on the late disclosure of Dr. Potts’ 

notes, not on an argument that Dr. Potts’ testimony was tainted 

or reports were improper because of the doctor’s exposure to the 

grand jury transcripts. Additionally, while Moody did move for 

a mistrial based on the prosecutor’s use of the doctors’ 

“tainted” opinions to impeach Dr. Goldberg’s testimony, that 

motion did not come until the day after the challenged actions, 

and Moody made no contemporaneous objection to the prosecutor’s 

use of Dr. Goldberg’s opinions during the trial. Consequently, 

Moody has waived this claim as well. See State v. Harris, 157 

Ariz. 35, 36, 754 P.2d 1139, 1140 (1988) (The purpose of the 

contemporaneous objection requirement is to allow the court to 

remedy objectionable action; a party cannot “permit an error to 

go unrectified and then [later] claim the right to a mistrial or 

a new trial.”). Thus, we review Moody’s challenges based on the 

use of the “Carlos Logan evidence” only for fundamental error.

See Bolton, 182 Ariz. at 297, 658 P.2d at 837. 

¶41 The Supreme Court has held that “a conviction obtained 
- 22 -

through use of false evidence, known to be such by 

representatives of the State, must fall under the Fourteenth 

Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959). The 

Ninth Circuit has removed the knowledge requirement from the 

Napue equation: “[E]ven if the government unwittingly presents 

false evidence, a defendant is entitled to a new trial ‘if there 

is a reasonable probability that [without the evidence] the 

result of the proceeding would have been different.’” United 

States v. Young, 17 F.3d 1201, 1204 (9th Cir. 1994) (alteration 

in original) (citation omitted). Moody urges this court to 

adopt the Ninth Circuit’s analysis in Young. We need not decide 

whether to adopt the Ninth Circuit’s rule, however, because even 

were we to do so, Moody’s claim would fail. 

¶42 Because Moody has waived this claim by failing to 

interpose timely objections or file a motion in limine, he must 

demonstrate that any error “contribut[ed] to or significantly 

affect[ed] the verdict.” State v. King, 158 Ariz. 419, 424, 763 

P.2d 239, 244 (1988). Moody makes no such argument. He argues 

only that “the State rendered the opinions of [the mental health 

experts] unreliable.” An independent review of the record 

suggests, however, that the Carlos Logan evidence likely had 

little or no impact on the doctors’ assessments or the jury’s 

rejection of Moody’s insanity defense. 
- 23 -

¶43 Drs. Sullivan and Morenz were the only State experts 

to testify at trial regarding Moody’s insanity defense. Dr. 

Sullivan opined that Moody was faking mental illness by 

malingering, but his testimony was based almost entirely on 

various tests other experts had administered to Moody. He was 

not cross-examined regarding the Carlos Logan evidence, and 

while Dr. Sullivan did have access to the opinions of Drs. 

Potts, LaWall, and Morenz — all of whom had been provided the 

grand jury transcripts — Moody offers no citations to the record 

showing that Dr. Sullivan ever had access to the grand jury 

transcripts or relied upon portions of the other doctors’ 

reports that were based upon the grand jury transcripts. In 

fact, before trial defense counsel argued that the only reason 

the State asked Dr. Sullivan to testify was that he was not

exposed to the Carlos Logan information and the State wanted to 

“sanitize” the trial by having an expert testify who had not 

been exposed to that information and therefore was not subject 

to impeachment on that score. 

¶44 Dr. Morenz, on the other hand, did admit that he 

considered the Carlos Logan information in arriving at his 

opinion that Moody was malingering. He indicated on direct 

examination that the Logan evidence was one of eleven factors 

that he considered in reaching his conclusions. Defense counsel 
- 24 -

then subjected Dr. Morenz to vigorous cross-examination that 

exposed to the jury that some of the information in the grand 

jury transcript was false and also exposed any possible 

prejudice Dr. Morenz might have developed from reading the grand 

jury transcript before meeting with Moody. This court has 

observed that cross-examination can place an expert’s 

conclusions in context and help the jury appropriately weigh the 

testimony. State v. Schackart, 175 Ariz. 494, 502, 858 P.2d 

639, 647 (1993) (“If the defense wishes to challenge the manner 

in which a mental examination has been conducted, or an expert’s 

conclusions, this can be done on cross-examination or during the 

testimony of its own witness.”); see also State v. Mincey, 141 

Ariz. 425, 441, 687 P.2d 1180, 1196 (1984). 

¶45 In light of all of the above — that Dr. Morenz appears 

to be the only expert at the second trial whose opinion was 

influenced even in part by the Logan evidence, that the Logan 

evidence supported only one of eleven bases for the doctor’s 

conclusion that Moody was malingering, and that the doctor was 

subject to cross-examination sufficient to expose to the jury 

possible biases or flaws in his reasoning — Moody has not met 

his burden of demonstrating that the false information 

“contribut[ed] to or significantly affect[ed] the verdict.” 

King, 158 Ariz. at 424, 763 P.2d at 244. We therefore conclude 
- 25 -

that there was no fundamental error on this issue. 

D. The Competency Findings

¶46 Moody claims that the trial court deprived him of due 

process by failing to adjudicate him incompetent. He argues 

that the trial judge erred by privately reviewing unidentified 

portions of the record in determining that Moody was competent, 

failing to conduct a competency hearing until just before 

commencement of the trial, applying the wrong standard of 

competency, and finding him competent despite insufficient 

evidence to support such a finding. Consequently, Moody urges 

that his Fifth, Sixth, and Fourteenth Amendment rights were 

violated and that his convictions must be reversed. 

 1. Unilateral Examination of Evidence

¶47 Moody alleges that the trial judge’s review of the 

record on competency constituted an impermissible competency 

determination. However, the record contains no evidence that 

defense counsel ever objected to the trial judge’s review of the 

record on competency. Consequently, Moody has waived this claim 

and we review only for fundamental error. See Bolton, 182 Ariz. 

at 297, 896 P.2d at 837. 

¶48 Moreover, Moody appears to misperceive the record. 

Arizona Rule of Criminal Procedure 11.5(a) and State v. Blier, 

113 Ariz. 501, 503, 557 P.2d 1058, 1060 (1976), require that any 
- 26 -

competency hearing be open to the parties and guarantee the 

right of the defendant to be present. A competency hearing is 

required, however, only “[i]f the court determines that 

reasonable grounds for an examination exist.” Ariz. R. Crim. P. 

11.3(a); accord State v. Steelman, 120 Ariz. 301, 315, 585 P.2d 

1213, 1227 (1978); State v. De Vote, 87 Ariz. 179, 182, 349 P.2d 

189, 192 (1960); State v. Reid, 87 Ariz. 123, 126, 348 P.2d 731, 

733 (1960). In determining whether reasonable grounds exist, a 

judge may rely, among other factors, on his own observations of 

the defendant’s demeanor and ability to answer questions. See 

State v. Harding, 137 Ariz. 278, 286, 670 P.2d 383, 391 (1983) 

(upholding a trial court’s determination that a defendant was 

competent to waive his right to counsel based on psychiatric 

reports and the trial court’s own observations). Further, if a 

defendant has already been adjudicated competent, the court must 

be permitted to rely on the record supporting that previous 

adjudication. State v. Contreras, 112 Ariz. 358, 360-61, 542 

P.2d 17, 19-20 (1975) (holding that before granting a second 

competency hearing, “there must be some reasonable ground to 

justify another hearing on facts not previously presented to the 

trial court”). 

¶49 We presume that a court is aware of the relevant law 

and applies it correctly in arriving at its ruling. See State 
- 27 -

 

v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996). With 

this presumption in mind, Moody’s contention that the trial 

judge’s pretrial review of the record on competency was an 

unlawful private “competency hearing” must be rejected. Rather, 

the record reflects that the trial judge’s actions were 

consistent with his obligation under Rule 11.2 to seek 

“reasonable grounds” before ordering a subsequent competency 

evaluation. Each time the judge denied a defense motion for a 

competency hearing, he indicated that the proffered evidence 

gave him no reason to question Moody’s competency, which had 

previously been determined. This interpretation is supported by 

the fact that the trial judge never expressly “found” Moody 

competent, as would be required after a full Rule 11.5 

competency hearing. See Ariz. R. Crim. P. 11.5(a). When 

finally presented with evidence that could possibly lead to 

reasonable grounds to question Moody’s competency, the trial 

judge scheduled a hearing to determine whether such grounds 

existed.4

 We find no error in the trial judge’s conduct, and 

4

 Dr. Goldberg prepared a report detailing the observations 

he made after four days of meetings with and examinations of 

Moody in February 2001. On March 1, 2001, the trial court 

indicated that Dr. Goldberg’s report raised “concerns about 

[Moody’s competence] that we should resolve before trial.” 

Consequently, the court held a hearing on May 7, 2001, with 

Moody, defense counsel, and the prosecutor present. Dr. 

Goldberg, the only expert to testify at the hearing, explained 
- 28 -

certainly none that constitutes “error of such dimensions that 

it cannot be said it is possible for [the] defendant to have had 

a fair trial.” State v. Smith, 114 Ariz. 415, 420, 561 P.2d 

739, 744 (1977).5

 2. Application of the Wrong Standard

¶50 Moody claims that the trial judge applied the wrong 

standard in adjudicating him competent to stand trial. He notes 

that the standard for competency under Dusky v. United States, 

362 U.S. 402 (1960), is two-pronged: The court must be 

satisfied (1) that the defendant has a “sufficient present 

ability to consult with his lawyer with a reasonable degree of 

rational understanding” and (2) that he has a “rational as well 

as factual understanding of the proceedings against him.” Moody 

claims that the trial court applied only the second part of that 

standard and ignored whether he had the ability to assist 

counsel when it denied his motion for a Rule 11 hearing. Moody 

 

his conclusion that Moody was “unreliable and inconsistent in 

his abilities” to assist counsel, but that he was able to 

complete the tests administered to him, his memory was average, 

and he recognized the doctor each time he was visited. Dr. 

Goldberg never opined that Moody was incompetent to stand trial 

and the trial judge did not find him to be so. 

5

 Because we conclude that the hearing before trial was not a 

“competency hearing” but rather a hearing to determine whether 

there were reasonable grounds to require a competency hearing, 

we find no error in the trial court waiting until the eve of 

trial to conduct such a hearing. 
- 29 -

bases his argument on the trial judge’s statement that “Moody 

knows who his lawyer is, he knows who the judge is, he certainly 

knows who Mr. White is, and he knows what he’s charged with.” 

¶51 This argument suffers from the same misunderstanding 

that doomed Moody’s previous claim, namely, the failure to 

distinguish between a determination of whether reasonable 

grounds exist to justify a competency hearing and findings 

following an actual competency hearing. The cited statement was 

made in response to Moody’s motion for a Rule 11 hearing. Thus, 

it was clearly a statement of reasonable grounds, not an 

adjudication of competency. 

¶52 Because this statement did not resolve an adjudication 

of competency, the incomplete rendition of the competency 

standard does not by itself require reversal. Rather, the 

critical inquiry is whether the trial court actually applied the 

correct standard in determining that reasonable grounds did not 

exist to call for a competency hearing. See, e.g., State v. 

Borbon, 146 Ariz. 392, 395, 706 P.2d 718, 721 (1985). 

“Reasonable grounds exist if there is sufficient evidence to 

indicate that the defendant is not able to understand the nature 

of the proceedings against him and to assist in his defense.” 

State v. Salazar, 128 Ariz. 461, 462, 626 P.2d 1093, 1094 

(1981). 
- 30 -

¶53 We presume that a court is aware of the relevant law 

and applies it correctly in arriving at its rulings. See 

Medrano, 185 Ariz. at 196, 914 P.2d at 229. After reviewing a 

report from Dr. Goldberg stating that Moody was “unable to 

reliably and consistently assist his counsel at this time” 

(emphasis in original), the trial judge “confess[ed] to having 

some concerns at this point about the record on competence.” 

Because Dr. Goldberg’s report was focused on Moody’s inability 

to consistently assist counsel, the trial judge’s concerns about 

competency after reading that report show that he was aware of 

the relevant standard. In light of this record, and the 

presumption that the trial judge is aware of the proper standard 

on competency, we cannot agree with Moody’s argument that the 

trial court’s lone statement in denying a motion for a Rule 11 

hearing constitutes reversible error. See id. (rejecting a 

defendant’s argument that the trial judge based his decision on 

inappropriate considerations, finding that the remainder of the 

record showed that the court was aware of and correctly applied 

the relevant law). 

 3. Insufficient Evidence

¶54 Moody asserts that there was insufficient evidence to 

support a finding of competency in this case. Specifically, he 

claims that there was no reasonable evidence that he was capable 
- 31 -

of assisting counsel. As a result, he argues, the case law 

requires that his convictions be reversed. See Pate v. 

Robinson, 383 U.S. 375 (1966); Dusky, 362 U.S. at 402-03; State 

v. Bishop, 162 Ariz. 103, 781 P.2d 581 (1989). 

¶55 We will upset a trial court’s determination of a 

criminal defendant’s competency only for an “abuse of 

discretion.” State v. Silvas, 91 Ariz. 386, 391, 372 P.2d 718, 

722 (1962) (citing Reid, 87 Ariz. at 123, 348 P.2d at 731). 

¶56 Arizona Rule of Criminal Procedure 11.1 states that 

“[a] person shall not be tried, convicted, sentenced or punished 

for a public offense . . . while, as a result of a mental 

illness, defect, or disability, the person is unable to 

understand the proceedings against him or her or to assist in 

his or her own defense.” Rule 11.1 defines “mental illness, 

defect or disability” as “a psychiatric or neurological disorder 

that is evidenced by behavioral or emotional symptoms.” 

However, the mere presence of a mental illness, defect, or 

disability “is not grounds for finding a defendant incompetent 

to stand trial.” Ariz. R. Crim. P. 11.1. Rather, the test for 

competency is whether that mental illness or defect renders a 

criminal defendant “unable to understand the proceedings against 

him or her or to assist in his or her own defense.” Id.

¶57 Immediately before the second trial, the court held a 
- 32 -

hearing at which Dr. Goldberg testified about Moody’s 

difficulties in assisting counsel. Following that hearing, the 

trial judge affirmed an earlier ruling that he had no grounds to 

question Moody’s competency to stand trial. Moody asserts that 

this was error.

¶58 There is no evidence before this court, however, that 

the trial judge abused his discretion in finding Moody competent 

to stand trial or, conversely, in failing to find Moody 

incompetent to stand trial. In addition to the avowal of one of 

Moody’s own attorneys that Moody was in fact competent and the 

judge’s own observations, the trial judge also had before him 

the opinions of Drs. Potts, LaWall, Geffen, Morenz, and 

Sullivan, all of whom indicated that, despite his personality 

disorders, Moody was likely malingering or faking mental illness 

and was capable of assisting defense counsel. Dr. Goldberg was 

the only expert who testified at the May 7, 2001 hearing, and 

even he testified only that Moody was “unreliable and 

inconsistent in his abilities” to assist defense counsel. 

Inconsistency in assisting counsel may fall short of inability 

to do so, the standard set forth in Rule 11.1. Moreover, the 

trial judge might have found Dr. Goldberg’s testimony less 

credible than that of the other doctors. Consequently, without 

any further showing, we cannot conclude that the trial judge 
- 33 -

abused his discretion in failing to find Moody incompetent to 

stand trial. See Silvas, 91 Ariz. at 391, 372 P.2d at 722 

(applying abuse of discretion standard).

E. Violation of Right to Counsel

¶59 Moody next argues that evidence obtained in violation 

of his right to counsel was used to undermine his insanity 

defense and influence the court’s determination of his mental 

competence. Moody raises two claims arising from this alleged 

violation of his rights: first, that the State violated his 

right to counsel when it ignored his request for an attorney 

before taking handwriting, fingerprint, blood, and hair samples; 

and, second, that the State intruded into the attorney-client 

relationship by making derogatory comments about counsel and 

eavesdropping on a telephone conversation between Moody and his 

attorney. 

 1. Physical Evidence

¶60 Moody contends that by refusing to honor his request 

for counsel after he was served with the search warrant for 

physical characteristics, the State violated his right to 

counsel. 

¶61 Shortly after Moody was extradited to Arizona, Tucson 

Detective Karen Wright and Pima County Detective Michael Ying 

served him with a search warrant seeking “physical 
- 34 -

characteristics,” such as hair, blood, fingerprints, and 

handwriting samples. Moody indicated that he had no attorney 

and requested a public defender. After contacting the 

prosecutor, however, the detectives denied his request. Moody 

then complied with the warrant and gave samples of hair and 

blood, was fingerprinted and photographed, and gave a 

handwriting sample. Before his second trial, Moody moved to 

suppress this evidence. The trial court denied that motion and 

the State presented the evidence at trial. 

¶62 As relief for the asserted violation of his rights, 

Moody claims that the trial court should have suppressed this 

evidence. We review a trial court’s ruling on a motion to 

suppress evidence for an abuse of discretion if it involves a 

discretionary issue, see State v. Prion, 203 Ariz. 157, 160, ¶ 

14, 52 P.3d 189, 192 (2002), but review constitutional issues 

and purely legal issues de novo, see State v. Davolt, 207 Ariz. 

191, 201, ¶ 21, 84 P.3d 456, 466 (2004) (analyzing Fourth and 

Fifth Amendment issues). 

¶63 Moody’s pretrial motion to suppress was based on 

Arizona Rule of Criminal Procedure 15.2(a), which guarantees a 

criminal defendant the right to have counsel present during the 

taking of physical evidence. Moody does not rely on Rule 15.2 

on appeal, however, and we therefore do not analyze that claim. 
- 35 -

¶64 Instead, on appeal, Moody relies upon two additional 

arguments raised but not ruled upon below: a Sixth Amendment 

right to have counsel present and a general right to “access” 

counsel derived from a line of driving under the influence 

(“DUI”) cases based on Rule 6.1(a) of the Arizona Rules of 

Criminal Procedure. 

¶65 On the first issue, federal case law is clear that 

Moody had no right to have counsel present at the taking of 

physical evidence. The Sixth Amendment right to counsel extends 

to “all critical stages of the criminal process.” Iowa v. 

Tovar, ___ U.S. ___, ___, 124 S. Ct. 1379, 1383 (2004). The 

taking of non-testimonial physical evidence, however, is not a 

critical stage of the proceedings. See, e.g., Gilbert v. 

California, 388 U.S. 263, 267 (1967) (holding that taking of a 

handwriting sample is not a “critical stage” of the 

proceedings); United States v. Jackson, 448 F.2d 963, 971 (9th 

Cir. 1971) (holding that taking of fingerprints and hair samples 

is not a “critical stage” of the proceedings); cf. United States 

v. Wade, 388 U.S. 218, 227-28 (1967) (stating that analysis of 

fingerprints, blood, and hair is not a critical stage because 

“there is minimal risk that his counsel’s absence at such stages 

might derogate from his right to a fair trial”). Consequently, 

Moody had no right to have the evidence suppressed based on the 
- 36 -

denial of his Sixth Amendment rights. 

¶66 Second, Moody argues that by refusing his custodial 

request to speak with counsel before the taking of the physical 

evidence, the State interfered with his rule-based “right of 

access to counsel” and that the evidence should therefore have 

been suppressed. Rule 6.1(a) of the Arizona Rules of Criminal 

Procedure provides a criminal defendant with the right to 

“consult in private with an attorney . . . as soon as feasible 

after [being] taken into custody.” This court has stated that, 

regarding a suspect in custody, the state may deny the right to 

consult with an attorney “only when the exercise of that right 

will hinder an ongoing investigation.” Kunzler v. Pima County 

Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987). 

Although the State has not shown that counsel would have 

hindered the investigation in this case, Moody had not been 

assigned an attorney when the warrant was served. This court 

has also stated that “[i]f the defendant is indigent and cannot 

afford an attorney, the state need not wait until one is 

appointed before continuing its detention procedures.” McNutt 

v. Superior Court, 133 Ariz. 7, 10 n.2, 648 P.2d 122, 125 n.2 

(1982). The taking of the fingerprint evidence would clearly 

qualify under this exception for detention procedures. 

¶67 Even if this court were to conclude that Moody’s right 
- 37 -

 

to consult counsel under Rule 6.1(a) was violated as to the 

other evidence, however, Moody fails to demonstrate that 

suppression would be required. Federal jurisprudence is clear 

that if evidence could have been obtained despite the violation 

of right to counsel, there is no reason to keep that evidence 

from the jury. Nix v. Williams, 467 U.S. 431, 447 (1984). For 

suppression to be appropriate, there must be a nexus between the 

violation and the evidence seized. Id. (stating that the 

exclusionary rule requires the suppression of evidence gained as 

a result of a government violation of a defendant’s rights).6

 In 

Moody’s case, the physical evidence was seized pursuant to a 

valid warrant, and the samples would have been collected whether 

or not Moody had an opportunity to speak with an attorney. 

Consequently, the nexus between the alleged violation and the 

evidence seized is absent; therefore, the policies underlying 

the exclusionary rule would not require suppression of this 

evidence. 

¶68 Moody relies on a line of cases based on Rule 6.1 of 

the Arizona Rules of Criminal Procedure for the proposition that 

6

 The federal exclusionary rule is not directly applicable 

because we are dealing with a rule-based right to counsel rather 

than a constitutional claim. However, we believe that the 

defendant must demonstrate some connection between a Rule 6.1(a) 

violation and the evidence seized before suppression is 

required. 
- 38 -

a defendant has the right to confer with counsel before taking a 

test for physical evidence. Those cases, however, all involve 

and are limited to the seizure of evidence of intoxication. 

See, e.g., Kunzler, 154 Ariz. at 568-70, 744 P.2d at 669-71; 

State v. Holland, 147 Ariz. 453, 711 P.2d 592 (1985); McNutt,

133 Ariz. at 7, 648 P.2d at 122; State v. Rosengren, 199 Ariz. 

112, 14 P.3d 303 (App. 2000). Only in these cases has the 

reviewing court either dismissed the charges against the 

defendant or affirmed suppression of non-testimonial, physical 

evidence as a sanction for the state’s violation of a 

defendant’s rights under Rule 6.1(a). 

¶69 These cases addressed violations of Rule 6.1 in the 

context of impaired drivers. See Kunzler, 154 Ariz. at 568, 744 

P.2d at 669 (DUI); Holland, 147 Ariz. at 454, 711 P.2d at 593 

(DUI); McNutt, 133 Ariz. at 8, 648 P.2d at 123 (DUI); Rosengren, 

199 Ariz. at 115, 14 P.3d at 306 (manslaughter). Such 

investigations raise unique concerns that justify exemption from 

the general rule: 

In a D[U]I investigation, it is crucial for both the 

state and the defendant to gather evidence relevant to 

intoxication close in time to when the defendant 

allegedly committed the crime. Otherwise, any alcohol 

that may have been in the blood will have decomposed 

before the blood can be tested. 

McNutt, 133 Ariz. at 10 n.2, 648 P.2d at 125 n.2. As the court 

suggested in McNutt, DUI investigations are unique because of 
- 39 -

 

the evanescent nature of blood- and breath-alcohol evidence. 

See id. Thus, these DUI cases establish the required nexus 

between the violation and remedy: Denial of counsel may deprive 

a defendant of an opportunity to obtain exculpatory evidence and 

therefore justifies suppression of evidence. Id. at 10, 648 

P.2d at 125. 

¶70 Moody’s case differs in that the physical evidence 

taken from him was not subject to disappearing or dissipating as 

is breath- or blood-alcohol evidence. The officers made it 

clear that the warrant sought only non-testimonial evidence and 

that they would not be asking Moody any questions regarding the 

murders while taking the evidence. Additionally, because the 

evidence was seized pursuant to a valid warrant,7

 it is unlikely 

that an attorney would advise Moody to defy the warrant and 

7

 Moody claims that the search warrant that authorized the 

taking of physical evidence was invalid because it was not 

“completely recorded as required by statute.” We disagree. 

Although the transcript of the recorded affidavit supporting the 

warrant shows that the recording cut off the court’s order 

authorizing the warrant, the tape contains the affiant 

detective’s oath, her description of the facts of the case, the 

substantial evidence linking Moody to the crime, Moody’s name, 

and a complete list of physical evidence requested. Arizona’s 

statute governing telephonic search warrants, A.R.S. § 13-

3914(C) (1989), requires only that the affiant’s statement of 

facts that establish the grounds for the warrant be recorded. 

Moody cites no case law suggesting that this is insufficient 

under § 13-3914(C) and we find no defect in the recording of the 

warrant. 
- 40 -

refuse to submit to the search.8

 For those reasons, we agree 

with those courts that have held that the necessity for counsel 

was minimized. E.g., Nix, 467 U.S. at 446-47. Consequently, 

even if Rule 6.1(a) requires that a defendant be afforded the 

opportunity to contact counsel before administration of a search 

warrant for physical characteristics, Moody has failed to 

demonstrate why suppression would be appropriate in this case. 

He therefore has not shown that the trial court abused its 

discretion in denying his motion to suppress the physical 

evidence. 

 2. Intrusion into the Attorney-Client Relationship

¶71 Moody claims that the State interfered in his 

relationship with counsel in two ways during a two-month span at 

the beginning of Moody’s detainment in early 1994. 

¶72 In February of 1994, a Pima County corrections officer 

 

8

 Moody cites Rosengren, 199 Ariz. at 121, ¶ 30, 14 P.3d at 

312, arguing that “the State cannot bypass the requirement of 

counsel by using a warrant.” Moody accurately cites Rosengren’s 

holding. Moreover, his reliance on it is misplaced. In 

Rosengren, the defendant requested an attorney twice before 

police officers sought a search warrant. Id. at 115, ¶¶ 4, 5, 

14 P.3d at 306. Consequently, it was clear that the officers in 

that case sought a warrant to prevent the defendant from 

exercising his right to contact counsel. In the current case, 

Moody did not request counsel until he was confronted with the 

warrant. Thus, while Rosengren’s rights to counsel were clearly 

subverted by the state’s decision to obtain a warrant, no such 

claim can be made here. 
- 41 -

made derogatory statements about Moody’s first attorney, Daniel 

Grills. When Grills brought this to the court’s attention, 

Judge Hantman ordered the Sheriff’s Department to avoid contact 

with Moody concerning legal matters. The State contends that 

this error was remedied by our decision in State v. Moody, 192 

Ariz. 505, 968 P.2d 578 (1998). We agree. Moody has failed to 

explain how, if at all, any prejudice stemming from this 

incident survived the reversal and affected him on retrial. 

Consequently, we address only Moody’s second claim. 

¶73 Two months later, on April 4, 1994, Pima County 

Corrections Officer Alan Chaffey, who had previously been 

instructed by his supervisor to “keep an eye on Mr. Moody” and 

report any observations he found interesting, overheard Moody 

make a phone call to his attorney in which Moody discussed his 

idea for a legal defense that he had “read about . . . in two 

books.” Officer Chaffey then searched Moody’s cell and 

discovered two books about alien abduction: Communion and The 

Breakthrough, Communion Continues. 

¶74 Before retrial, Moody moved to dismiss the charges 

against him, alleging that the State intentionally interfered in 

the attorney-client relationship. The trial court denied that 

motion without elaboration. Contending that the prosecutor took 

deliberate actions to “penetrate the attorney-client privilege 
- 42 -

and destroy counsel’s relationship with his client,” Moody now 

claims that the trial court erred in denying the motion and asks 

us to vacate his convictions and dismiss the charges against 

him. 

¶75 We review a trial court’s ruling on a motion to 

dismiss for an abuse of discretion. State v. Hansen, 156 Ariz. 

291, 294, 751 P.2d 951, 954 (1988) (citing State v. Pickett, 121 

Ariz. 142, 145, 589 P.2d 16, 19 (1978)). 

¶76 The Sixth Amendment to the United States Constitution 

and Article 2, Section 24 of the Arizona Constitution guarantee 

a criminal defendant the right to assistance of counsel. This 

right includes “protection against improper intrusions by the 

prosecutor or other government agents into the confidential 

relationship between a defendant and his attorney.” State v. 

Warner, 150 Ariz. 123, 127, 722 P.2d 291, 295 (1986). We 

recognize that “effective representation is not possible without 

the right of a defendant to confer in private with . . . 

counsel.” Holland, 147 Ariz. at 455, 711 P.2d at 594; see also

Ariz. R. Crim. P. 6.1(a). 

¶77 The defendant bears the initial burden to establish an 

interference in the attorney-client relationship. Once he does 

so, the state bears the burden of demonstrating that the 

defendant was not prejudiced by the interference and must 
- 43 -

convince the court beyond a reasonable doubt that the defendant 

received a fair trial. Warner, 150 Ariz. at 128, 722 P.2d at 

296. 

¶78 Addressing the first part of this equation, Moody 

claims that the correction officer’s actions in eavesdropping on 

his conversation interfered with his relationship with counsel. 

The relevant inquiry, however, is whether the state interfered 

with “the confidential relationship between a defendant and his 

attorney.” Id. at 127, 722 P.2d at 295 (emphasis added). The 

State argues that Moody waived his interest in the 

confidentiality of the telephone call and that the corrections 

officer did not interfere in a confidential attorney-client 

relationship. The evidence showed that Officer Chaffey was 

sitting approximately fifteen feet from Moody during the 

conversation; that Moody knew the officer was there but made no 

attempt to protect the contents of his conversation by turning 

his back, speaking softly, or covering his mouth; and that 

Officer Chaffey did not have to listen closely or eavesdrop to 

hear what Moody was saying. 

¶79 Although not binding on our resolution of 

confidentiality requirements, our case law on evidentiary 

privilege is instructive. The cases suggest that one who knows 

that his conversation may be overheard and makes no effort to 
- 44 -

safeguard against interception may waive a claim of 

confidentiality. In De Leon v. Territory, 9 Ariz. 161, 168-69, 

80 P. 348, 351 (1905), Arizona’s landmark case on privilege, 

this court held that the defendant waived his spousal 

communications privilege when he wrote a letter to his wife from 

jail knowing that the jailers would open the letter. Similarly, 

in State v. Summerlin, 138 Ariz. 426, 434-35, 675 P.2d 686, 694-

95 (1983), we held that the spousal communication privilege was 

waived because the defendant spoke to his wife knowing that 

police officers could hear him and were listening to him. And 

the court of appeals recently held that “[t]he presence of a 

third person will usually defeat the [attorney-client] privilege 

on the ground that confidentiality could not be intended with 

respect to communications that the speaker knowingly allowed to 

be overheard by others foreign to the confidential 

relationship.” State v. Sucharew, 205 Ariz. 16, 22, ¶ 11, 66 

P.3d 59, 65 (App. 2003) (quoting Morris K. Udall, et al., Law of 

Evidence § 71, at 128 (3d. ed. 1991)) (alteration in original). 

While some factual distinctions exist, this case law suggests 

that Moody knowingly waived his privacy interest in the content 

of the conversation. 

¶80 Although eavesdropping on privileged calls and opening 

privileged materials intrude into the attorney-client 
- 45 -

relationship, see State v. Pecard, 196 Ariz. 371, 376-78, ¶¶ 26-

37, 998 P.2d 453, 458-60 (App. 1999) (finding an intrusion into 

the attorney-client relationship where defendant’s telephone 

calls with his attorney were recorded, his privileged mail to 

and from his attorney was opened, and privileged work product 

documents were taken from his cell), the facts in Moody’s case 

are not nearly so extreme. There was no surreptitious 

eavesdropping, recording, or reporting of communications or 

affect that were not readily apparent to anyone who had been in 

the vicinity. 

¶81 Although the trial court’s denial of Moody’s motion to 

dismiss included no specific findings, we presume that the court 

was aware of the relevant law and applied it correctly in 

arriving at its ruling, see State v. Medrano, 185 Ariz. 192, 

196, 914 P.2d 225, 229 (1996), and we can affirm the ruling on 

any basis supported by the record. See State v. Robinson, 153 

Ariz. 191, 199, 735 P.2d 801, 809 (1987) (reviewing evidentiary 

rulings). Based on the evidence before us, we find no abuse of 

discretion. The trial judge may have found the corrections 

officer’s testimony credible, a determination to which we would 

defer. See State v. Hughes, 13 Ariz. App. 391, 393, 477 P.2d 

265, 266-67 (1970) (deferring to the trial court’s credibility 

evaluation). On the basis of that testimony, the trial court 
- 46 -

may reasonably have concluded that Moody waived the 

confidentiality of the communication with his attorney by making 

no effort to safeguard the content of his conversation. Thus, 

we cannot conclude that the trial court abused its discretion in 

denying this motion to dismiss. 

¶82 Because we conclude there was no intrusion into the 

attorney-client relationship, we need not address whether Moody 

was prejudiced by any intrusion. Similarly, we need not address 

how, if at all, Moody was prejudiced by the prosecution 

forwarding Officer Chaffey’s report to the mental health 

experts. Chaffey discovered the books during a routine 

investigation of Moody’s cell. The overheard telephone 

conversation is necessary to give context to the books 

sufficient to raise a claim that the discovery inculpated the 

attorney-client relationship. Consequently, our conclusion that 

the trial court did not err in finding that Moody waived any 

confidentiality interest resolves this issue as well. 

F. Death Qualification of the Jury

¶83 Moody argues that he was denied an impartial and 

representative jury by the trial court’s decision to “death 

qualify” the jurors — that is, to ascertain whether they had any 

feelings about the death penalty that would have interfered with 

their ability to follow the law. Moody alleges two errors, one 
- 47 -

general and one specific. First, he argues that “death 

qualification” is unconstitutional and should be disallowed. 

Second, he alleges that the trial judge’s removal of four 

individual panel members for cause was an abuse of discretion 

and violated his right to a representative jury. 

¶84 On the first issue, Moody concedes that this court has 

consistently upheld death qualification. E.g., State v. 

Montaño, 204 Ariz. 413, 422, ¶ 36, 65 P.3d 61, 70 (2003) (citing 

State v. Hoskins, 199 Ariz. 127, 141-42, ¶ 50, 14 P.3d 997, 

1011-12 (2000)); see also State v. Jones, 197 Ariz. 290, 302, ¶ 

24, 4 P.3d 345, 357 (2000); State v. Kayer, 194 Ariz. 423, 431, 

¶ 22, 984 P.2d 31, 39 (1999). He asks us to reconsider these 

holdings. While duly noted, Moody’s arguments are mere reprises 

of arguments that this court has previously rejected. See 

Hoskins, 199 Ariz. at 141-42, ¶ 49, 14 P.3d at 1011-12. In 

light of the amendment to A.R.S. § 13-703.01 (Supp. 2003) that 

now permits jury sentencing, we decline to revisit our earlier 

holdings on the constitutionality of death qualification of 

juries. 

¶85 Moody’s second claim challenges the removal of four 

jurors based on their personal opposition to the death penalty. 

Moody did not contemporaneously object to the removal for cause 

of any of these jurors. While defense counsel did lodge a 
- 48 -

general objection to death qualification before passing the 

panel, we have held that “a general objection to death penalty 

questioning does not serve as an objection to preserve on direct 

appeal the issue of whether individual jurors were improperly 

dismissed for cause because of their death penalty views.” 

Montaño, 204 Ariz. at 422, ¶ 37, 65 P.3d at 70 (quoting Kayer,

194 Ariz. at 432, ¶ 24, 984 P.2d at 40). Because defense 

counsel failed to object to the individual dismissal of the 

jurors in question, we review only for fundamental error. See 

id.

¶86 Fundamental error is “error of such dimensions that it 

cannot be said it is possible for a defendant to have had a fair 

trial.” State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 

(1977). There was no such error here. 

¶87 In this case, the trial judge asked the jury pool 

whether any member “would not be able to serve as a fair and 

impartial juror” in light of his or her view on the death 

penalty. Of the eight individuals who indicated that their 

personal views might affect their ability to be fair and 

impartial, four were removed after extensive questioning and 

several unsuccessful attempts at rehabilitation, and one juror 

was removed immediately upon indicating his fervent support of 

capital punishment. The two potential jurors who indicated that 
- 49 -

they could set aside their feelings and be impartial remained on 

the panel, but were not ultimately selected to be on the jury. 

The final juror who had strong personal feelings about the death 

penalty was eventually excused because she had been exposed to 

news accounts of the murders and had a professional association 

with one of Moody’s defense lawyers. 

¶88 The Supreme Court has held that potential jurors may 

not be removed for cause “simply because they voiced general 

objections to the death penalty.” Witherspoon v. Illinois, 391 

U.S. 510, 522-23 (1968). However, the trial judge is permitted 

to question jurors regarding their opinions on the death 

penalty, see, e.g., State v. Anderson, 197 Ariz. 314, 318-19, ¶¶ 

7-10, 4 P.3d 369, 373-74 (2000), and, after attempting 

rehabilitation, may remove a potential juror from the jury pool 

if the juror’s personal views may “prevent or substantially 

impair the performance of [the juror’s] duties.” Wainwright v. 

Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 

38, 45 (1980)). Deference is to be accorded to the trial judge 

and a juror’s bias need not be proved with unmistakable clarity. 

Id. at 424-25. 

¶89 In Montaño, we upheld the for-cause dismissal of a 

juror whose equivocations were much less substantial than any 

juror excused for cause in this case. See 204 Ariz. at 422-23, 
- 50 -

¶¶ 38-39, 65 P.3d at 70-71. Moody urges us to apply a much 

stricter standard, arguing for application of the standard we 

applied in Anderson, 197 Ariz. at 320, ¶ 11, 4 P.3d at 375 

(suggesting that a judge may remove a juror only if the juror 

“unequivocally express[es] an inability to follow the law and 

the judge’s instructions”). As the State notes, however, 

Anderson involved a unique situation in which the trial court 

administered a written jury questionnaire and refused to allow 

follow-up questioning by counsel. Id. at 319, ¶ 10, 4 P.3d at 

374. We held, in that situation, that a judge may base 

dismissal of jurors solely on how they answer their jury 

questionnaires only if their answers reveal an unequivocal 

expression of an inability to follow the law. Id. This case 

differs from Anderson because any equivocation expressed by the 

challenged jurors in this case appears to be the very product of 

extensive questioning, not a result of its absence. 

¶90 Reviewing the record for fundamental error, we agree 

with the State that “the trial judge excused only the ‘extreme’ 

members of the panel on both sides of the death penalty 

question.” There was no error here, and certainly none “of such 

dimensions that it cannot be said it is possible for a defendant 

to have had a fair trial.” Smith, 114 Ariz. at 420, 561 P.2d at 

744. Consequently, we fail to find that the trial court 
- 51 -

committed fundamental error by excusing these four potential 

jurors because their views on the death penalty might have 

affected their ability to serve as fair and impartial jurors. 

G. Failure to Ask Proposed Voir Dire Questions

¶91 Moody argues that, despite assurances that the parties 

would be permitted to use jury questionnaires, the trial court 

first refused to use his questionnaire and then failed to 

adequately question prospective jurors on the questions covered 

in the proposed questionnaire during the jury selection process. 

He claims these errors deprived him of his rights to due process 

and a fair and impartial jury. 

¶92 We address each claim individually. 

 1. Failure to Administer Questionnaire

¶93 Moody claims that the trial court erred both by 

refusing to administer his proposed jury questionnaire and by 

giving a factually incorrect reason for doing so. On the first 

point, we note that there is no right to use jury questionnaires 

in Arizona. Rule 18.5(d) of Arizona’s Rules of Criminal 

Procedure commands the court to conduct a “thorough oral 

examination of prospective jurors” and, upon request of a party, 

requires the court to “permit that party a reasonable time to 

conduct a further oral examination of the prospective jurors.” 

Nothing in the language of Rule 18.5, however, creates a right
- 52 -

to use jury questionnaires. See State v. Davolt, 207 Ariz. 191, 

207, ¶ 52, 84 P.3d 456, 472 (2004); State v. Cañez, 202 Ariz. 

133, 148, ¶ 37, 42 P.3d 564, 579 (2002). Rather, whether to 

permit the use of jury questionnaires is a decision committed to 

the sound discretion of the court. Cañez, 202 Ariz. at 148, ¶ 

37, 42 P.3d at 579. “We will not disturb the trial court’s 

selection of the jury in the absence of a showing that a jury of 

fair and impartial jurors was not chosen.” Walden, 183 Ariz. at 

607, 905 P.2d at 986 (quoting State v. Tison, 129 Ariz. 546, 

551, 633 P.2d 355, 360 (1981)). Moody fails to show either an 

abuse of discretion or that the jury selected was not fair and 

impartial. 

¶94 Moody’s second argument regarding the questionnaire is 

that “the trial court’s stated reason for rejecting the written 

questions was factually incorrect, i.e., that it never intended 

to give a written questionnaire.” He cites State v. Chapple, 

135 Ariz. 281, 297, 660 P.2d 1208, 1224 (1983), in support of 

his arguments. In Chapple, however, we concluded not that the 

trial judge gave a “factually incorrect reason” for precluding 

an expert witness, but rather that he came to an incorrect legal 

conclusion. Id. Chapple therefore provides no support for 

Moody’s position, and Moody makes no other legal argument in 

support of his contention. Moreover, Moody does not show where 
- 53 -

in the record the trial judge stated that he would give a 

questionnaire. In sum, Moody has not established any grounds 

for reversal on this point. 

 2. Failure to Adequately Question Prospective Jurors

¶95 Moody also argues that the trial judge’s refusal to 

use the questionnaire resulted in the failure to ask several 

questions necessary to ensure a fair and impartial jury. To 

succeed on a claim that the court failed to adequately question 

the jury panel, Moody must demonstrate not only that the voir 

dire examination was inadequate, but also that, as a result of 

the inadequate questioning, the jury selected was not fair, 

unbiased, and impartial. See Walden, 183 Ariz. at 607, 905 P.2d 

at 986. He does not meet this burden. 

¶96 Moody’s brief does set forth several groups of 

questions from the questionnaire that he asserts were not 

specifically explored on voir dire: jurors’ experience with 

dissociative identity disorder, the effects of cocaine, and the 

credibility of police officers. He concedes that the trial 

court asked general questions covering each of these areas with 

much broader strokes — asking, for example, about jurors’ 

experiences with mental illness, drugs and alcohol, and law 

enforcement. He urges, however, that the questions did not go 

far enough. 
- 54 -

¶97 Moody’s claims are nearly identical to the ones this 

court rejected in Walden, 183 Ariz. at 608, 905 P.2d at 987. In 

that case, a defendant whose jury questionnaire was not used at 

trial claimed that “although many of his questions were 

adequately covered by the court, other relevant and appropriate 

ones were not.” Id. We found no error in Walden’s case because 

he made “no attempt to show how the absence of any particular 

question or subject of questioning resulted in a biased jury or 

rendered his trial fundamentally unfair.” Id. Rather, he made 

“only the general claim that each question was necessary to 

uncover juror bias.” Id. The same is true here. Moody does 

not show how the absence of any of the questions resulted in a 

jury that was not fair and impartial. 

¶98 Ultimately, even had Moody provided a more specific 

argument on this point, the trial judge’s invitation to counsel 

to ask follow-up questions mitigates any deficiency in the 

court’s questioning. This court has consistently upheld trial 

courts’ refusals to use jury questionnaires when counsel were 

provided an opportunity to voir dire potential jurors. See, 

e.g., Davolt, 207 Ariz. at 207, ¶ 52, 84 P.3d at 472; Cañez, 202 

Ariz. at 148, ¶ 37, 42 P.3d at 579. It also follows that a 

defendant who believes a trial court’s voir dire to be deficient 

cannot sit on his rights and bypass the opportunity to cure the 
- 55 -

error by questioning jurors about those subjects that he feels 

were inadequately addressed when offered the opportunity to do 

so. 

¶99 In this case the trial judge invited counsel to voir 

dire the panel, and he allowed counsel to ask follow-up 

questions to individual jurors throughout the selection process. 

Moody has not alleged that his opportunity for follow-up 

questioning was limited or restricted, and because he could have 

asked the questions himself that he now claims should have been 

asked, we find no error or abuse of discretion in the voir dire 

process. 

¶100 Based on the record before us, we find no abuse of 

discretion in the trial court’s actions, and Moody fails to 

demonstrate how any of the errors he alleges served to deprive 

him of a fair, impartial, and unbiased jury. 

H. Improper Expert Testimony

¶101 Moody contends that the State’s mental health expert, 

Dr. Morenz, invaded the province of the jury. Moody alleges 

error in two different statements: that Moody committed these 

murders because of his cocaine use and that malingering is “a 

medical term for lying.”9

 

9

 In the “fact” section of his brief, Moody also mentioned 

Dr. Morenz’s testimony about Moody’s motive for turning himself 
- 56 -

¶102 As an initial matter, we note that Moody did not 

object at trial to either statement by Dr. Morenz. This court 

has long held that an appellant may not challenge on appeal 

testimony to which there has been no objection, unless the error 

is fundamental. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 

1214, 1217 (1981). We therefore review each statement only for 

fundamental error. See State v. Bolton, 182 Ariz. 290, 297, 896 

P.2d 830, 837 (1995); see also State v. King, 158 Ariz. 419, 

424, 763 P.2d 239, 244 (1988) (defining and reviewing for 

fundamental error). 

 1. Opinion Testimony on Motive

¶103 Moody first alleges error in Dr. Morenz’s testimony 

about Moody’s possible motive for the murders. At trial, Dr. 

Morenz testified that, in his opinion, it was “very likely that 

the motivation [for the murders] was money and cocaine.” Moody 

alleges that this was inappropriate opinion testimony permitted 

by neither the Arizona Rules of Evidence nor our case law on 

expert testimony. 

 

in to police, but he made no argument regarding it. Merely 

mentioning an argument is not enough: “In Arizona, opening 

briefs must present significant arguments, supported by 

authority, setting forth an appellant’s position on the issues 

raised. Failure to argue a claim usually constitutes 

abandonment and waiver of that claim.” State v. Carver, 160 

Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). Consequently, we do 

not address the propriety of this testimony. 
- 57 -

¶104 Arizona Rule of Evidence 702 provides that an expert 

witness may testify on any subject if the witness’s “specialized 

knowledge will assist the trier of fact to understand the 

evidence or to determine a fact in issue.” This court has 

interpreted Rule 702 to preclude expert testimony, however, if 

“the subject of inquiry is one of such common knowledge that 

people of ordinary education could reach a conclusion as 

intelligently as the witness.” State v. Poland, 144 Ariz. 388, 

398, 698 P.2d 183, 193 (1985) (quoting State v. Owens, 112 Ariz. 

223, 227, 540 P.2d 695, 699 (1975)). 

¶105 Moody alleges that Dr. Morenz exceeded the permissible 

scope of Rule 702 by testifying that Moody’s cocaine use was a 

motive for the murders. Moody contends that although Dr. Morenz 

could express an opinion on whether Moody was suffering from 

mental illness, “he was not permitted to offer an opinion that 

Robert killed Michelle Malone and Patricia Magda because of his 

cocaine use.” Moody argues that because there was no evidence 

that he had used cocaine at the time of the murders, and 

therefore no foundation for the opinion, Arizona case law 

renders Dr. Morenz’s testimony improper. See State v. Miles, 

186 Ariz. 10, 18, 918 P.2d 1028, 1036 (1996) (upholding trial 

court’s decision to preclude defense expert’s testimony on 

cocaine intoxication where the expert “had no basis upon which 
- 58 -

to render an opinion about the effects of crack cocaine use at 

the time of the murder”); State v. Gretzler, 126 Ariz. 60, 85, 

612 P.2d 1023, 1048 (1980) (stating that “[t]estimony concerning 

intoxication should be limited to the time of the crime for 

which the defendant is being tried”), modified on other grounds 

by State v. McDaniel, 136 Ariz. 188, 194, 655 P.2d 70, 76 

(1983). 

¶106 A review of the context of that testimony, however, 

undermines Moody’s claim. Dr. Morenz was called on rebuttal, 

shortly after the jury heard evidence from the defense experts 

that Moody was in a psychotic, dissociated state when he 

committed the killings. Dr. Morenz testified that he had eleven 

reasons for concluding that Moody was not insane, but rather was 

“malingering.” One of these reasons was that the murders did 

not fit the profile of “psychotic killings.” Dr. Morenz 

testified that psychotic killings rarely have “any rational 

motive.” He then told the jury that one indication that Moody 

was malingering was that, unlike “psychotic killers,” Moody 

actually did have a likely motive — namely, that his substantial 

cocaine addiction had rendered him broke and desperate. 

¶107 What evidence is permissible on rebuttal is left to 

the trial court’s discretion. See State v. Young, 116 Ariz. 

385, 387, 569 P.2d 815, 817 (1977). The rebuttal evidence 
- 59 -

provided by Dr. Morenz in this case responded to the issues 

covered by the defense and is of the type on which expert 

testimony is generally allowed: the mental health and thought 

processes of a defendant who alleges insanity or mental illness 

or defect. Dr. Morenz testified to motive in support of his 

opinion that Moody’s actions contradicted a diagnosis of 

psychosis. We find no abuse of the court’s discretion in 

permitting this testimony, and certainly no fundamental error. 

 2. Characterization of “Malingerer” as “Liar”

¶108 Moody also alleges that Dr. Morenz “exceeded the scope 

of permissible expert testimony by offering an opinion on 

[Moody’s] credibility by characterizing malingering as a medical 

term for lying.” The defense takes Dr. Morenz’s statement out 

of context. 

¶109 On direct-examination, Dr. Morenz defined a 

“malingerer” as “someone who makes up their [sic] symptoms for a 

particular purpose.” He further stated that “[i]n Mr. Moody’s 

case, [that purpose is] to escape criminal prosecution or gain 

some kind of leniency from the court.” On cross-examination, 

defense counsel asked Dr. Morenz whether Moody had been “called 

a malingerer, which is a medical term for liar.” Dr. Morenz 

responded, “yes.” Moody claims that by that answer, “Morenz 

improperly expressed his professional opinion that [Moody] is a 
- 60 -

liar.” 

¶110 We find no merit in Moody’s argument for two reasons. 

First, the question posed by defense counsel is a compound 

question. For that reason, it is unclear whether Dr. Morenz was 

answering “yes” to the question whether Moody had been called a 

malingerer, or whether he was affirming that “malingerer” is a 

“medical term for a liar.” 

¶111 Second, even if we assume that Dr. Morenz intended to 

testify that “malingerer . . . is a medical term for liar,” that 

definition was offered as a leading question by defense counsel 

on cross-examination. This court has long held that “a 

defendant who invited error at trial may not then assign the 

same as error on appeal.” See, e.g., State v. Endreson, 109 

Ariz. 117, 122-23, 506 P.2d 248, 253-54 (1973). We can envision 

few situations in which a defendant can be said to “invite” an 

error more condemningly than by asking a leading question that 

he assigns to the witness on appeal. For that reason, while we 

find no error here because of the compound nature of the 

question and the ambiguous response, even if Dr. Morenz’s 

statement were erroneous, it was invited by the defense and for 

that reason would not provide a basis for reversal. 

I. Failure to Preclude Dr. Sullivan from Testifying

¶112 Moody argues that the trial court erred by failing to 
- 61 -

preclude one of the State’s mental health experts, Dr. Sullivan, 

from testifying because of the late disclosure of his notes and 

defense counsel’s inability to re-interview him. 

¶113 Before trial, Moody allowed Dr. Sullivan to interview 

him on the condition that the doctor not take notes. 

Immediately after concluding the interview, Dr. Sullivan 

dictated a report. Dr. Sullivan’s report was disclosed to 

defense counsel two weeks before trial so that counsel could 

prepare to interview Dr. Sullivan. Defense counsel interviewed 

Dr. Sullivan once before trial and again on May 19, a week 

before Dr. Sullivan was scheduled to testify. At the May 19 

interview, defense counsel learned that Dr. Sullivan had 

compiled forty pages of handwritten notes following the first 

interview, in preparation for trial. These notes were disclosed 

to the defense two days after that interview, but defense 

counsel did not have an opportunity to re-interview Dr. Sullivan 

after their disclosure and therefore moved to preclude Dr. 

Sullivan from testifying. Moody now claims that denial of that 

motion was error and warrants reversal of his convictions. 

¶114 Whether to impose a sanction for late disclosure and 

which sanction to impose are discretionary decisions left to the 

trial court; we will not disturb those decisions absent an abuse 

of discretion. State v. Tucker, 157 Ariz. 433, 439, 759 P.2d 
- 62 -

579, 585 (1988). Preclusion is “a sanction of last resort,” 

State v. Talmadge, 196 Ariz. 436, 440, 999 P.2d 192, 196 (2000), 

to be imposed only if “other less stringent sanctions are not 

applicable.” State v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 

208 (1979). 

¶115 Moody cites only one case suggesting that a failure to 

disclose evidence relating to a witness might require preclusion 

of that witness. In State v. Krone, 182 Ariz. 319, 321-23, 897 

P.2d 621, 623-25 (1995), we held that a trial court erroneously 

failed to preclude a witness’s key exhibit, “the centerpiece of 

the star witness’s testimony,” which was not disclosed to the 

defense until the day before trial. Krone turned upon a bitemark pattern on the victim; the exhibit that the defense sought 

to preclude was a videotape of the bite-mark analysis. Id. at 

320-22, 897 P.2d at 622-24. Our determination that the video 

should have been precluded was based on the importance of that 

evidence: We noted that without the bite-mark evidence, “there 

likely would have been no jury submissible case against Krone.” 

Id. at 322, 897 P.2d at 624. 

¶116 Moody has not demonstrated that similar circumstances 

exist in this case. Moody’s brief contains no suggestion of 

what was in the doctor’s notes, no explanation of how, if at 

all, the late disclosure prejudiced him, and no indication 
- 63 -

whether the notes revealed information that differed from that 

explored during his attorney’s two interviews of Dr. Sullivan. 

Consequently, we cannot say that the trial court abused its 

discretion in failing to preclude Dr. Sullivan’s testimony. 

J. Evidentiary Rulings

¶117 Moody argues that the trial court abused its 

discretion in admitting three pieces of evidence: (1) pawn 

slips showing that Moody sold various items between January 11, 

1993 and October 16, 1993; (2) Detective Wright’s personal 

opinion on Moody’s guilt; and (3) blood, DNA, handwriting, and 

ballistic evidence that was never released to Moody for 

independent testing. 

 1. The Pawn Slips

¶118 On May 11, 2004, the State called James Ganem, the 

owner of the Cash Box Jewelry and Pawn Company, to introduce two 

pawn slips for items pawned at his store: a Winchester 12-guage 

shotgun and a Ruger .22 caliber pistol. He verified that 

someone who had actual knowledge of the information recorded on 

the slips filled them out during the regular course of business. 

See Ariz. R. Evid. 803(6) (excluding certain business records 

from the hearsay rule). They were admitted without objection. 

Also admitted were the accompanying police reports, which Ganem 

testified were required by law to be completed after each 
- 64 -

transaction. 

¶119 Next, the State introduced police reports from a 

different pawn shop showing that Moody pawned jewelry, a camera, 

and a .357 caliber revolver on January 11, July 2, and October 

16, 1993. Ganem testified that he did not own that shop, but he 

knew of it and recognized the reports as pawn records. When the 

defense learned that the pawn slips from the second shop were to 

be offered, defense counsel objected and requested a mistrial on 

the grounds that he had no notice that the pawn slips were going 

to be admitted into evidence because the State had not noticed a 

custodian of records for the documents from the second pawn 

shop. The court denied the mistrial motion and overruled the 

objection. Moody contends that this was error. 

¶120 On appeal, Moody claims that the police reports from 

the second pawn shop contained inadmissible hearsay. We note, 

however, that Moody never objected to their admission on these 

grounds. The sole objection made at trial was that no custodian 

of records had been listed and that Moody consequently had no 

notice that the documents would be introduced. Defense counsel 

did not object on grounds of lack of foundation or hearsay. 

“Absent fundamental error, if evidence is objected to on one 

ground in the trial court and admitted over that objection, 

other grounds raised for the first time on appeal are waived.” 
- 65 -

State v. Neal, 143 Ariz. 93, 100, 692 P.2d 272, 279 (1984). 

“Fundamental error is error of such dimensions that it cannot be 

said it is possible for a defendant to have had a fair trial.” 

State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977). 

¶121 Moody claims that the erroneous admission of this 

hearsay evidence denied him a fair trial because it allowed the 

State to establish that Moody had pawned items in the past and 

discredited Dr. Lewis’s claim that Moody was in a state of 

dissociation when he pawned the guns after the murders. Even if 

it were error to admit these documents without a proper 

custodian of records, however, the admission of this evidence 

does not constitute “fundamental error” because the prosecution 

had presented other evidence that Moody had pawned items in the 

past. Moody’s ex-girlfriend, for example, testified that Moody 

had pawned his guns to obtain money to buy drugs, establishing 

that he knew how to convert guns into cash and was not doing so 

for the first time in a state of dissociation after the murders. 

Additionally, the State rebutted Dr. Lewis’s claims that Moody 

was in a psychotic, dissociated state by moving into evidence 

without objection the first two pawn slips, describing the guns 

that Moody stole from the Malone house. This evidence showed 

Moody’s intent to profit by his crimes and thus undermined his 

claim that he was psychotic at the time of the killings. Thus 
- 66 -

even if admission of the pawn records were error, those records 

were merely cumulative and did not deprive Moody of a fair 

trial. 

¶122 Finally, we note that even had Moody preserved this 

issue for appeal, reversal would not be an appropriate remedy. 

Reversal is not required if the error could easily be remedied 

on retrial. See State v. Best, 146 Ariz. 1, 4, 703 P.2d 548, 

551 (1985) (holding that “reversal would not be appropriate if a 

retrial would involve admission of what is presently objected 

to”); State v. Garrison, 120 Ariz. 255, 258, 585 P.2d 563, 566 

(1978) (“Were we to reverse on this ground, it would only result 

in a retrial at which the same evidence would be 

admitted . . . . Courts should not engage in such futile 

practices.”). Because Moody does not dispute that this evidence 

would have been admissible had the proper foundation been laid, 

on retrial the State could simply call the custodian of records 

and have this evidence admitted. That being said, we do not 

condone the State’s failure to lay a proper foundation for the 

evidence. Nonetheless, we conclude that there was no 

fundamental error in denying Moody’s objection to the evidence. 

 2. Detective Wright’s Opinion on Moody’s Guilt

¶123 Moody claims that fundamental reversible error 

occurred when the State elicited testimony from Detective Wright 
- 67 -

 

that she “believed Mr. Moody was responsible for these brutal 

murders.”10 Moody did not object at the time of the testimony, 

but moved for a mistrial on this ground the next morning. The 

trial court denied the motion, noting that there had been no 

objection at the time. The court commented that no prejudice 

resulted from the statements because the defense did not deny 

that Moody committed the murders; the defense was that he was 

insane when he committed them. The court observed that “who did 

the murders is not seriously at issue.” Thus, the judge 

implicitly concluded that Detective Wright’s statement had not 

unfairly prejudiced Moody. Moreover, before deliberation, the 

court instructed the jurors that they were not to give the 

testimony of police officers any greater weight than they gave 

to the testimony of any other witnesses and that opinions as to 

guilt or innocence were to be disregarded. Moody now argues 

that denial of his mistrial motion was error and warrants 

reversal. 

¶124 We review a trial court’s failure to grant a mistrial 

for an abuse of discretion. State v. Dann, 205 Ariz. 557, 570, 

10 On cross-examination of Detective Wright, Moody’s counsel 

attempted to show that the Detective was “out to get” Moody. On 

rebuttal, the State asked why the Detective focused her 

investigation on Moody. She replied, as set forth above, that 

she did so because she believed Moody had committed the murders. 
- 68 -

¶ 43, 74 P.3d 231, 244 (2003). Whether this issue was properly 

preserved is in question, because Moody failed to lodge a 

specific, contemporaneous objection and deprived the court of an 

opportunity to correct any error that may have occurred with an 

immediate curative instruction. Ultimately, however, Moody’s 

claim fails to withstand even an abuse of discretion analysis. 

¶125 The State concedes that Detective Wright’s statement 

was improper, citing Fuenning v. Superior Court, 139 Ariz. 590, 

605, 680 P.2d 121, 136 (1983) (supp. op.) (stating that it is 

“neither necessary nor advisable to ask for a witness’ opinion 

of whether the defendant committed the crime with which he was 

charged”); cf. State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 

73, 76 (1986) (noting that we generally do “not permit expert 

testimony on how the jury should decide the case”). 

¶126 “A declaration of a mistrial, however, is ‘the most 

dramatic remedy for trial error and should be granted only when 

it appears that justice will be thwarted unless the jury is 

discharged and a new trial granted.’” Dann, 205 Ariz. at 570, ¶ 

43, 74 P.3d at 244 (quoting State v. Adamson, 136 Ariz. 250, 

262, 665 P.2d 972, 984 (1983)). A witness’s statement of belief 

in a defendant’s guilt does not necessarily warrant a mistrial. 

State v. Herrera, 203 Ariz. 131, 135, ¶ 7, 51 P.3d 353, 357 

(App. 2002). In Herrera, for example, the court of appeals held 
- 69 -

that the trial court did not abuse its discretion in refusing to 

grant a mistrial after it sustained an objection to an 

impermissible statement regarding the defendant’s guilt, struck 

the statement from the record, and promptly gave a curative 

instruction to the jury. Id. ¶ 3. No contemporaneous objection 

was made in this case, but when an objection was raised the next 

day, the trial court agreed to give an appropriate instruction 

to the jury before deliberations began. The judge ultimately 

did so, instructing the jury that “[t]he testimony of a police 

officer is not entitled to any greater or lesser weight or 

believability merely because of the fact he or she is a police 

officer” and that “[a]ny opinion expressed by any witness as to 

the defendant’s guilt or innocence is irrelevant to your 

consideration and must be disregarded. The jury is the sole 

judge of the guilt or innocence of the defendant.” 

¶127 Additionally, the trial court was correct in ruling 

that Detective Wright’s opinion that Moody killed the victims 

did little to prejudice Moody in proving the ultimate issue in 

this case: whether Moody was insane when he murdered Michelle 

Malone and Patricia Magda. Although Detective Wright’s opinion 

would have been prejudicial if Moody were disputing that he 

killed the victims, the prejudice was reduced substantially 

because the defense was that Moody was insane when he committed 
- 70 -

the acts. In light of the posture of this case, we conclude 

that the trial court did not abuse its discretion in denying 

Moody’s mistrial motion. 

 3. Physical Evidence

¶128 Moody claims that the trial court erred in admitting 

certain physical evidence at trial. Before trial, defense 

counsel requested that the State release all blood, DNA, 

handwriting, and ballistic evidence for independent testing. 

The State refused to release the evidence unless the defense 

stipulated that the “items are the same items that were obtained 

by the ‘finders’ listed below and examined by the ‘analysts’ 

listed below.” Moody refused to so stipulate and moved to 

compel the State to release the evidence. The trial court 

denied the motion, ruling that the State had the right to 

require Moody to sign a reasonable stipulation regarding the 

integrity of the evidence. On appeal, Moody claims that the 

court’s ruling was error. 

¶129 Arizona Rule of Criminal Procedure 15.1(e) provides 

that, upon written request, the prosecutor must “make available 

to the defendant for examination, testing, and reproduction” any 

items disclosed as evidence. Moody further urges that the State 

“may not unreasonably interfere with an accused’s reasonable 

attempts to secure, at his own expense, a blood or other 
- 71 -

scientific test.” Smith v. Cada, 114 Ariz. 510, 514, 562 P.2d 

390, 394 (App. 1977). 

¶130 Rule 15.1(e) also provides, however, that “[t]he 

prosecutor may impose reasonable conditions, including an 

appropriate stipulation concerning chain of custody, to protect 

physical evidence produced under this section.” While our 

courts have yet to address this issue, we believe that the trial 

court is in the best position to determine whether a stipulation 

is “appropriate,” and we will review its decision for an abuse 

of discretion. 

¶131 In this case, the court found the proposed stipulation 

appropriate. The court noted that without it, the State might 

lose its ability to present the evidence at trial. However, 

defense counsel continually expressed its willingness to 

stipulate to a chain of custody for the entire time that the 

evidence would be in the possession of the defense team. It was 

merely unwilling to stipulate to a chain of custody for the time 

that the evidence was in the State’s possession. Moody alleged 

that his reason for so refusing was that the prosecution itself 

could not avow to the chain of custody regarding certain pieces 

of evidence, an argument he repeats on appeal. The State did 

not argue this point in its response brief, which we take as a 

concession. 
- 72 -

¶132 In light of the above, we have some difficulty with 

the trial court’s conclusion that the State offered an 

appropriate chain of custody stipulation. However, even if we 

were to find an abuse of discretion here, such an abuse would be 

subject to review for harmless error. See State v. Bible, 175 

Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). An error is 

harmless “if we can say, beyond a reasonable doubt, that the 

error did not contribute to or affect the [jury’s] verdict.” 

Id.

¶133 Moody’s lone defense at trial was that he was insane 

when he committed the murders of Malone and Magda; he has never 

seriously contested that he killed the victims. The evidence at 

issue — blood, DNA, handwriting samples, and ballistic evidence 

— does not bear on the critical issue in this case: Moody’s 

claim of insanity. Consequently, while we do not condone 

unreasonable stipulations that operate to deprive defendants of 

their right to test evidence independently, based on the record 

before us we conclude that this evidence would not have affected 

the jury’s determination regarding Moody’s sanity and therefore 

any error was harmless. 

K. Admission of Teibel Testimony

¶134 Moody alleges as error the trial court’s failure to 

preclude the testimony of David Teibel, a newspaper reporter who 
- 73 -

interviewed Moody and wrote a story about the murders that 

appeared in the Tucson Citizen in 1994. Following a pretrial 

hearing to review the scope of the “reporter’s privilege,” the 

trial court ordered that questioning of Teibel be limited to 

matters “concerning the authenticity of statements attributable 

to Mr. Moody that were contained in one or more news articles 

authored by Mr. Teibel and published in the Tucson Citizen.” 

Moody alleges that the trial court abused its discretion and 

denied him a fair trial by failing to preclude Teibel’s 

testimony altogether or, in the alternative, by limiting the 

scope of his cross-examination of Teibel. 

¶135 Whether to preclude or limit a witness’s testimony 

lies within the discretion of the trial court. See State v. 

Tucker, 157 Ariz. 433, 439, 759 P.2d 579, 585 (1988) (noting 

that the sanction of preclusion of testimony for disclosure 

violations is reviewed for an abuse of discretion); State v. 

Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977) (holding 

that the trial court has the discretion to curtail the scope of 

cross-examination when appropriate). Consequently, we will not 

reverse the court’s ruling on this issue absent an abuse of that 

discretion. See Tucker, 157 Ariz. at 439, 759 P.2d at 585. 

¶136 Both the United States and Arizona Constitutions 

guarantee a criminal defendant the right to confront witnesses. 
- 74 -

U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. This right 

includes the right to cross-examination, Pointer v. Texas, 380 

U.S. 400, 404 (1965), and may be violated if a defendant is 

“prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the 

part of the witness, and thereby ‘to expose to the jury the 

facts from which jurors . . . could appropriately draw 

inferences relating to the reliability of the witness.’” Olden 

v. Kentucky, 488 U.S. 227, 231 (1988) (alteration in original) 

(citations omitted). 

¶137 In Arizona, a trial judge “may place reasonable limits 

upon the scope of cross-examination, without infringing upon the 

defendant’s right of confrontation.” State v. Lehr, 201 Ariz. 

509, 518, ¶ 30, 38 P.3d 1172, 1181 (2002). These limits become 

unconstitutional only when they deny the opportunity to present 

“information which bears either on the issues in the case or on 

the credibility of the witness.” Fleming, 117 Ariz. at 125, 571 

P.2d at 271. 

¶138 In this case, the court limited cross-examination to 

“questions [that] probe the veracity, accuracy and authenticity 

of the statements made by the defendant,” and expressly 

precluded any “questions about unpublished information, [or 

about] reportorial or editorial processes, practices, policies 
- 75 -

or activities of Mr. Teibel’s employment.” He had two grounds 

for doing so: his belief that Teibel had a “reporter’s 

privilege” that protected the information and his determination 

that the information was not relevant. 

¶139 Moody claims that Teibel had no valid “reporter’s 

privilege” and that the trial court abused its discretion in 

finding one. In Arizona, a reporter has a privilege to shield a 

confidential source for an article. See A.R.S. § 12-2237 

(2003). We agree with Moody that the reporter’s privilege is 

not implicated in this case because Teibel’s article did not 

involve a confidential source. The question then becomes 

whether the trial court’s limitation on the cross-examination of 

Teibel was justified on other grounds or whether it violated 

Moody’s right to confront a witness against him. 

¶140 We conclude that the trial court’s limitation is 

sustainable on relevancy grounds and because the information 

allegedly sought from the witness would not have reflected on 

the witness’s reliability or was cumulative. Evidence is 

relevant if it has “any tendency to make the existence of any 

fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the 

evidence.” Ariz. R. Evid. 401. Moody argues that he was 

unconstitutionally denied the opportunity to question Teibel on 
- 76 -

two relevant subjects: unpublished information and the 

editorial process. As the State correctly observes, the record 

undermines Moody’s claim. 

¶141 Defense counsel had ample opportunity to cross-examine 

Teibel on the reliability of the article, despite the 

limitations imposed by the court. In fact, defense counsel 

stated at the outset of Teibel’s examination that it would treat 

Teibel “like any other witness” and would “ask him appropriate 

cross-examination,” leaving it to the trial court to sustain or 

overrule objections to his questions. Throughout crossexamination the State objected only twice and its objection was 

sustained only once. 

¶142 By the time cross-examination had concluded, Teibel 

had conceded that he did not record the interview with Moody, 

that he had destroyed the only notes he took of the interview, 

that he attributed language to Moody that Moody never used, 

that it was possible that Moody described his actions 

differently from the way Teibel reported them, that Teibel 

paraphrased Moody’s words, and that Teibel’s first draft had 

been edited and was not published as originally written. 

¶143 Ultimately, it is difficult to imagine what relevant 

information Teibel might have had that Moody was denied an 

opportunity to bring out. The examples Moody cites in his 
- 77 -

briefs range from the completely irrelevant (for example, “who 

the editors were”) to material that was merely cumulative. 

Despite Moody’s claims that he was denied the opportunity to 

impeach Teibel, bring out his own version of the events, and 

question Teibel about the editorial process, the record reflects 

that defense counsel did all of these things. Consequently, we 

cannot conclude that the trial court abused its discretion by 

allowing Teibel to testify under an order that limited the scope 

of examination. 

L. Prosecutorial Misconduct

¶144 Moody alleges five separate instances of prosecutorial 

misconduct that he claims warrant reversal: (1) appealing to 

the jurors’ emotions in closing argument; (2) improperly using 

non-testifying doctors’ opinions; (3) using the false Carlos 

Logan information substantively in closing argument; (4) arguing 

the content of Moody’s videotaped interview; and (5) improperly 

stating the defense’s burden of proof on the insanity defense. 

¶145 To prevail on a claim of prosecutorial misconduct, a 

defendant must demonstrate that “(1) misconduct is indeed 

present; and (2) a reasonable likelihood exists that the 

misconduct could have affected the jury’s verdict, thereby 

denying defendant a fair trial.” State v. Atwood, 171 Ariz. 

576, 606, 832 P.2d 593, 623 (1992), disapproved on other grounds 
- 78 -

by State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25, 25 P.3d 717, 

729 (2001). We analyze each of Moody’s claims in turn.11

 1. Inflammatory Appeals to Emotion

¶146 Moody raises several claims that the prosecutor 

committed misconduct in appealing to the jurors’ emotions in 

closing argument. Of these, Moody’s most substantial claim is 

his challenge to the prosecutor’s appeal to the jurors’ fears 

that Moody would be released if found “not guilty by reason of 

insanity” (“NGBRI”). Additionally, Moody claims that the 

prosecutor improperly belittled him by referring to him as “poor 

Robert” and then impermissibly injected the victims’ suffering 

into closing argument. Because only the first of these was 

objected to and preserved for appeal, we address each claim 

separately, reviewing the latter two only for fundamental error. 

See State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 

(1981). 

 a. The “Cut Loose” Comment 

¶147 Before closing arguments, defense counsel requested a 

 

11 In State v. Hughes, 193 Ariz. 72, 969 P.2d 1184 (1998), 

this court applied the “cumulative error” doctrine to a case in 

which an appellant raised seven separate claims of misconduct, 

the cumulative effect of which he alleged “denied him a fair 

trial.” Id. at 78, ¶ 24, 969 P.2d at 1190. Although Moody 

cites Hughes in passing, he develops no argument on this point. 

It is therefore waived. See State v. Carver, 160 Ariz. 167, 

175, 771 P.2d 1382, 1390 (1989). 
- 79 -

jury instruction that would explain the ramifications of an 

NGBRI verdict. Defense counsel feared that the jurors would be 

reluctant to find Moody NGBRI if they thought such a verdict 

would put Moody “out on the street.” The State argued against 

giving the instruction and the court denied the defense request. 

¶148 The next day, knowing that no instruction would be 

given on the effect of an NGBRI verdict, the prosecutor argued 

in his rebuttal closing argument that “the defendant is asking 

you to excuse a man who has brutally [and] viciously . . . 

murdered two innocent women on the basis of a disorder that is 

not even settled in the mental health field . . . . Before you 

cut somebody loose on that kind of disorder . . . .” The court 

sustained an objection from defense counsel and instructed the 

jury to “disregard the last comments by the prosecutor.” The 

prosecutor then clarified his remarks, stating “[b]efore you 

find someone not guilty, which is what I’m talking to you about, 

I would think that you would want some reliable evidence and 

there isn’t any.” Moody now argues that this appeal to emotion 

warrants reversal. 

¶149 It is misconduct to appeal to the jurors’ fears that 

an NGBRI verdict will result in a defendant’s release. State v. 

Makal, 104 Ariz. 476, 478, 455 P.2d 450, 452 (1969). That is 

clearly what the prosecutor did by asking the jury not to “cut 
- 80 -

[Moody] loose.” The State relies on dicta in Donnelly v. 

DeChristoforo, 416 U.S. 637, 647 (1974), for the proposition 

that “a court should not lightly infer that a prosecutor intends 

an ambiguous remark to have its most damaging meaning or that a 

jury, sitting through lengthy exhortation, will draw that 

meaning from the plethora of less damaging interpretations.” We 

conclude, however, that the prosecutor’s remarks were not 

ambiguous. 

¶150 The phrase “cut somebody loose” requires no 

inferential leap to interpret. It is difficult to imagine any 

interpretation of the prosecutor’s “cut loose” comment other 

than that an NGBRI verdict would result in Moody’s release. Not 

only did this comment impermissibly appeal to the jurors’ fears, 

but it was also an incorrect statement of law, because under 

Arizona law a defendant who is found NGBRI is “committed to a 

secure state mental health facility.” A.R.S. § 13-3994 (2001). 

The egregiousness of the statement was magnified by the 

prosecutor’s knowledge that the jury would not be instructed on 

the consequences of an NGBRI verdict. 

¶151 Still, the mere fact that a prosecutor makes improper 

remarks does not require reversal unless, “under the 

circumstances of the case, [the jury] was probably influenced by 

those remarks.” State v. Puffer, 110 Ariz. 180, 181, 516 P.2d 
- 81 -

316, 317 (1973). As in Puffer, Moody’s counsel objected to the 

remark, the objection was sustained, and the jury was 

immediately instructed to disregard the prosecutor’s comments. 

See id. Moreover, in this case the prosecutor then made 

comments that sought to remedy his previous misconduct, and 

before the jury convened for deliberations, the trial court 

instructed the jury that it was not to consider the possible 

effects of its verdict. 

¶152 In State v. Cornell, 179 Ariz. 314, 328, 878 P.2d 

1352, 1366 (1994), this court stated that the “experienced 

prosecutor should have known better than to make such remarks, 

and his actions seem almost calculated to bring prejudicial and 

irrelevant matters before the jury. His conduct jeopardized the 

proceedings.” We echo those concerns regarding the prosecutor’s 

statement in this case. However, as in Cornell, “[w]e do not 

. . . reverse convictions merely to punish a prosecutor’s 

misdeeds []or to deter future misconduct.” Id. Rather, 

reversal is required only when “the defendant has been denied a 

fair trial as a result of the actions of [the prosecutor].” 

Bible, 175 Ariz. at 600, 858 P.2d at 1203 (quoting State v. 

Dumaine, 162 Ariz. 392, 400, 783 P.2d 1184, 1192 (1989)). The 

prosecutor’s “cut loose” comment was irresponsible, 

inappropriate, and inflammatory. However, because it was an 
- 82 -

isolated comment, was promptly objected to, and was rendered 

less harmful by instructions by the court, we cannot conclude 

that the comment, by itself, denied Moody a fair trial. 

 b. The “Poor Robert” Comment 

¶153 Moody alleges that the prosecutor patronized and 

belittled him in rebuttal closing argument. The prosecutor, in 

discussing the defense’s claim that people did not understand 

dissociative identity disorder, referred to the defendant as 

“poor Robert Moody” for being afflicted with a disorder that no 

one understands. Moody did not object to this comment. Failure 

to object to a comment in closing argument waives that argument 

on appeal, and we therefore review it only for fundamental 

error. See Thomas, 130 Ariz. at 435, 636 P.2d at 1217. 

¶154 “Attorneys, including prosecutors in criminal cases, 

are given wide latitude in their closing arguments to the jury.” 

State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). 

Although Moody cites Comer for the proposition that it is 

misconduct to belittle the defendant in closing argument, Comer 

does not stand for that proposition. Comer held that a 

prosecutor improperly appealed to the jurors’ emotions by 

referring to the defendant as a “monster,” “filth,” and the 

“reincarnation of the devil on earth.” Id. We held that 

prosecutors “may comment on the vicious and inhuman nature of 
- 83 -

the defendant’s acts,” but “may not make arguments which appeal 

to the passions and fears of the jury.” Id. Although we agree 

that belittling a criminal defendant in closing argument is 

improper and unnecessary, given the evidence in this case we do 

not find that the passing comment constituted fundamental error. 

We therefore conclude that referring to the defendant as “poor 

Robert Moody” was not an error “of such dimensions that it 

cannot be said it is possible for a defendant to have had a fair 

trial.” State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 

(1977). 

 c. Describing the Victims’ Suffering 

¶155 Moody claims that the prosecutor committed reversible 

misconduct by “graphically describing the suffering of each 

decedent” and ending his argument by telling the jury that Moody 

had no sympathy for the victims and asking them to have no 

sympathy for him. Moody failed to object to these comments, 

limiting our review to one for fundamental error. See Thomas, 

130 Ariz. at 435, 636 P.2d at 1217. 

¶156 Moody mischaracterizes the prosecutor’s statements. 

After reviewing the record, we see no “graphic description” of 

the victims’ suffering. The prosecutor’s frank description of 

the murders themselves is permissible. See Comer, 165 Ariz. at 

426, 799 P.2d at 346 (“Within the latitude of closing argument 
- 84 -

counsel may comment on the vicious and inhuman nature of the 

defendant’s acts. In so doing, however, counsel may not make 

arguments which appeal to the passions and fears of the jury.”). 

Moody has failed to show fundamental error on this point. Nor 

does Moody cite any cases suggesting that it was improper to ask 

the jury to have no sympathy for him. Indeed, we encourage 

jurors not to decide cases based on emotion or sympathy. We 

conclude that such a statement passes muster as an exhortation 

to the jury to do its duty. Moody therefore fails to 

demonstrate fundamental error requiring reversal on this issue. 

 2. Improper Use of Non-Testifying Doctors’ Opinions

¶157 Moody alleges that the prosecutor used the reports and 

opinions of non-testifying doctors for impermissible purposes. 

He claims that the prosecutor erred both by injecting these 

reports and opinions into his examination of witnesses and by 

arguing them substantively in closing argument. 

¶158 On the first argument, Moody contends that the 

prosecutor used the reports of Drs. Potts, LaWall, Vesper, and 

Geffen to impeach defense experts Drs. Goldberg and Lewis. 

After Dr. Goldberg stated his conclusion that the results of the 

tests he administered to Moody were not consistent with someone 

who was malingering, the prosecutor asked Dr. Goldberg on crossexamination whether he had reviewed a report by Dr. Geffen that 
- 85 -

concluded that it was “very likely” that Moody was malingering, 

or if he had seen Dr. Potts’, Dr. LaWall’s, or Dr. Morenz’s 

reports, all of which indicated that Moody was “possibly” 

malingering. Dr. Goldberg said that he had not seen any of 

these reports. Defense counsel did not object to this line of 

questioning. 

¶159 Two days later, defense expert Dr. Lewis testified 

that Moody was suffering from dissociative identity disorder 

(“DID”), a mental illness that she claimed had developed early 

in Moody’s childhood and rendered him psychotic. On crossexamination, the prosecutor asked Dr. Lewis if she had reviewed 

the report that Dr. Potts drafted after he spent six months 

observing Moody. When Dr. Lewis answered “yes,” the prosecutor 

asked her to confirm that Dr. Potts had not diagnosed Moody as 

having DID and that nothing in the report suggested that such a 

diagnosis was appropriate. There was no objection to this line 

of questioning. 

¶160 The next day, the State called Dr. Sullivan to rebut 

the testimony of Drs. Goldberg and Lewis. On direct 

examination, the prosecutor asked Dr. Sullivan his reasons for 

believing that Moody was malingering. One of the reasons Dr. 

Sullivan gave was that Drs. LaWall, Geffen, Potts, and Morenz 

“all concluded that Mr. Moody was malingering.” Moody neither 
- 86 -

objected to this question nor moved to strike the answer. 

¶161 Moody’s final allegation of misconduct is that the 

prosecutor’s substantive use of the doctors’ opinions in closing 

argument was error. In closing, the prosecutor argued that 

Moody had a “history of malingering.” As support, he cited Dr. 

Geffen’s initial testing, despite the fact that Dr. Geffen had 

not testified at trial. Moments later, the prosecutor stated 

that Drs. “LaWall, Potts, and Geffen also say [Moody is] 

malingering,” despite the fact that neither Dr. LaWall nor Dr. 

Potts had testified at trial. On rebuttal, the prosecutor 

argued that DID does not render one legally insane because 

“[e]ven Dr. Vesper says just because you have dissociative 

identity disorder doesn’t mean you don’t have control.” Dr. 

Vesper, an expert retained by the defense to evaluate Moody’s 

competency to stand trial, did not testify during this trial. 

Finally, the prosecutor indicated that Drs. LaWall, Potts, and 

Geffen “didn’t buy” Moody’s insanity defense. 

¶162 The defense did not object to any of these arguments. 

The defense also did not object to the use of Dr. Potts’ reports 

or the reports of the other doctors at trial.12 Additionally, 

 

12 Moody did file a motion in limine before trial to preclude 

Dr. Potts as a witness on the grounds of late disclosure of the 

doctor’s notes, but the trial judge did not find preclusion to 

be an appropriate sanction. In Hughes, we held that “when 
- 87 -

 

although Moody claims that he moved for a mistrial “immediately 

after the State’s first use of a nontestifying doctor’s 

opinion,” in fact he did not so move until the next morning, and 

the sole basis for that motion was that those reports were 

tainted by the false Carlos Logan information, not that they 

were improper opinions of non-testifying third parties. 

¶163 On appeal, Moody challenges the reports as containing 

improper hearsay evidence that could not be argued substantively 

for its truth. Because, however, the “evidence [was] objected 

to on one ground [that is, late disclosure] and admitted over 

the objection, other grounds not specified [such as hearsay] are 

waived.” State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 

(1982). Consequently, we review this claim only for fundamental 

error. See State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830, 

837 (1995). 

¶164 The prosecutor argued that the non-testifying doctors’ 

reports could be used to impeach the defense experts. Rule 703 

of the Arizona Rules of Evidence allows an expert witness to 

counsel [makes] the court aware of his objection through a 

previous motion, failure to object at trial does not then waive 

the issue on appeal.” 193 Ariz. at 85, ¶ 58, 969 P.2d at 1198. 

The only ground ever offered by the defense for precluding Dr. 

Potts’ testimony or reports, however, was late disclosure of Dr. 

Potts’ notes to defense counsel, which defense counsel claimed 

impaired his opportunity and ability to interview Dr. Potts. 
- 88 -

base an opinion on “facts or data” not admissible in evidence. 

The information need not be admissible if it is of the “type 

reasonably relied upon by experts in the particular field.” Id. 

Once disclosed to the jury, this information is “not admitted as 

substantive evidence, but only for purposes of showing the basis 

of the expert’s opinion.” State v. Lundstrom, 161 Ariz. 141, 

146, 776 P.2d 1067, 1072 (1989). Moody argues that the 

prosecutor violated Lundstrom by using the facts and opinions 

contained in the reports substantively to impeach Drs. Goldberg 

and Lewis, to bolster the opinion of Dr. Sullivan, and in 

closing argument. 

 a. Use of Reports in Examination of Witnesses 

¶165 Moody claims that the prosecutor’s use of the reports 

to bolster Dr. Sullivan’s testimony and to discredit that of 

Drs. Goldberg and Lewis violated this court’s holding in 

Lundstrom, 161 Ariz. at 141, 776 P.2d at 1067. In Lundstrom, 

this court stated that while Arizona Rule of Evidence 703 allows 

an expert to testify to “facts or data” not admissible in 

evidence, “if the testifying expert merely acts as a conduit for 

another non-testifying expert’s opinion, the ‘expert opinion’ is 

hearsay and is inadmissible.” 161 Ariz. at 148, 776 P.2d at 

1074. Although Moody raises a colorable claim that the 

prosecutor’s actions here violated Lundstrom, he failed to lodge 
- 89 -

 

a contemporaneous objection based on hearsay or confrontation 

grounds.13 Consequently, his burden is to demonstrate not merely 

that a Lundstrom violation has occurred, but that this violation 

rendered it impossible for him to have received a fair trial. 

See Bolton, 182 Ariz. at 297, 896 P.2d at 837 (stating that 

matters not raised at trial are reviewed for fundamental error); 

Smith, 114 Ariz. at 420, 561 P.2d at 744 (noting that 

fundamental error is “error of such dimensions that it cannot be 

said it is possible for a defendant to have had a fair trial”). 

He develops no such argument and has not met the burden of 

demonstrating how the use of the non-testifying doctors’ 

opinions here constitutes fundamental error. 

 b. Use of Reports in Closing Argument

¶166 Moody argues that the prosecutor improperly used the 

non-testifying doctors’ reports as substantive evidence on four 

occasions during closing argument and rebuttal. First, the 

prosecutor referred to Dr. Geffen’s initial testing as proof of 

Moody’s “history of malingering.” Second, he stated that Drs. 

“LaWall, Potts and Geffen also say he’s malingering.” Third, he 

13 Moody’s counsel moved for a mistrial the following day on 

grounds of “misconduct.” He did not specifically object on 

grounds of hearsay or denial of Moody’s right to confront 

witnesses. See supra, ¶ 162; see also Zuck, 134 Ariz. at 513, 

658 P.2d at 166 (failure to object on specific grounds waives 

error on appeal). 
- 90 -

argued that even if the jurors agreed with Dr. Lewis’s diagnosis 

of dissociative identity disorder, Dr. Vesper’s opinion was that 

such a disease did not prevent an individual from controlling 

his or her actions. Finally, he stated that Drs. LaWall, Potts, 

and Geffen “didn’t buy” Moody’s insanity defense. 

¶167 Moody claims that by arguing the substantive content 

of the non-testifying doctors’ reports in closing argument, the 

prosecutor violated this court’s determination in Lundstrom that 

while such reports may be used to show the bases of the expert’s 

opinion, they may not be used as substantive evidence. 161 

Ariz. at 148, 776 P.2d at 1074. We note, however, that by 

failing to object to any of these instances at trial, Moody 

deprived the court of the opportunity to cure any misuse of the 

reports by instructions or otherwise. See State v. Dann, 205 

Ariz. 557, 575, ¶ 73, 74 P.3d 231, 249 (2003). Consequently, as 

above, Moody’s burden is not merely to demonstrate error, but 

also to show that the error deprived him of a fair trial. See 

Smith, 114 Ariz. at 420, 561 P.2d at 744 (defining “fundamental 

error”). 

¶168 In light of this burden, we conclude that the 

prosecutor’s injection of the non-testifying doctors’ opinions 

into closing argument was not fundamental error. Indeed, given 

the other evidence presented at trial, it was merely cumulative. 
- 91 -

Both Drs. Sullivan and Morenz testified at trial that they 

believed Moody to be malingering, and both set forth substantial 

grounds upon which they based their opinions. Because the jury 

already had before it ample “proper” evidence that Moody was 

faking or exaggerating symptoms of mental illness, the 

prosecutor’s recitation of the non-testifying doctors’ 

cumulative opinions in closing argument did not deny Moody a 

fair trial. Consequently, we conclude that if there were error 

here, it was not fundamental and therefore does not require 

reversal. 

 3. Improper Use of Moody’s Videotaped Confession

¶169 Moody also challenges the prosecutor’s substantive use 

in closing argument of Moody’s videotaped confession. 

¶170 During trial, defense counsel asked to play Moody’s 

videotaped confession for the jury so the jurors could determine 

whether Moody was malingering. Over the State’s objection, the 

trial court permitted the defense to play the tape, but 

instructed the jury to consider only Moody’s demeanor and not to 

consider statements from the tape as substantive evidence. 

¶171 After the videotape was played, the prosecutor 

requested that the State be permitted to ask the experts about 

the effect of the videotape on their opinions about Moody’s 

malingering. The court agreed. On direct examination of Dr. 
- 92 -

Sullivan, the prosecutor asked if, in his review of the 

videotape, the doctor had noticed any inconsistencies “in terms 

of what [Moody] remembers or what he doesn’t remember.” Dr. 

Sullivan then testified that Moody was initially told only that 

Patricia Magda was his next-door neighbor, but later in the 

interview he indicates that he is being held for murdering his 

next-door neighbor, despite the fact that no one had identified 

her as a murder victim. Four days later, the defense moved for 

a mistrial, arguing that Dr. Sullivan improperly considered the 

content of the videotape. The court denied the motion, 

reminding counsel that the restriction on substantive 

consideration applied only to the jury and that the experts 

could properly consider the content of the videotape. 

¶172 In closing argument, the prosecutor argued that the 

tape showed that Moody was malingering. He stated that Moody 

“ke[pt] up a good story for two hours or more,” but then made a 

significant slip. He noted that when the videotape was at 18 

hours, 30 minutes, and 30 seconds, Moody told the officers that 

he did not know who Patricia Magda was; at 19:58:15, however, he 

stated that he killed his next-door neighbor. The prosecutor 

then said “[i]f you don’t think Dr. Sullivan got it right, 

listen to the tape.” Moody now argues that the prosecutor 

encouraged the jury to use the videotape for the precise purpose 
- 93 -

that the trial court expressly forbade, namely, as substantive 

evidence of Moody’s guilt. 

¶173 Moody never objected to this argument, however, and 

therefore never provided the trial court the opportunity to cure 

any error. See Dann, 205 Ariz. at 575, ¶ 73, 74 P.3d at 249. 

Therefore, we review only for fundamental error. See id.; see 

also Bolton, 182 Ariz. at 297, 896 P.2d at 837. 

¶174 The prosecutor’s substantive use of the tape’s 

contents in closing appears to have been error. The prosecutor 

directed the jury to consider the tape for its content, giving 

specific time references for statements he wished the jurors to 

hear. Although the State argues that the prosecutor eventually 

tied the videotape to Dr. Sullivan’s testimony by saying “[i]f 

you don’t think Dr. Sullivan got it right, listen to the tape,” 

he did so only after substantively discussing the videotape for 

fifteen sentences. Such use of the videotape was specifically 

prohibited by the trial court. However, a number of factors 

mitigate the impact of the prosecutor’s conduct. 

¶175 First, although the defense later objected to Dr. 

Sullivan’s substantive reliance on the content of the video, 

defense counsel had originally urged that the jurors be 

permitted to consider the videotape evidence substantively. 

Second, the prosecutor did not encourage the jurors to view the 
- 94 -

entire tape substantively, but directed them to the particular 

point on the tape that would support his expert’s testimony. 

Finally, the prosecutor obtained a waiver of the “demeanor only” 

ruling to allow his expert to consider the contents of the 

videotape and testify to it. Consequently, we conclude that the 

prosecutor’s argument supporting Dr. Sullivan’s reliance on the 

videotape to form his conclusion did not constitute fundamental 

error. 

 4. Arguing False Carlos Logan Information

¶176 Moody challenges the prosecutor’s use of the false 

Carlos Logan evidence for substantive purposes in closing 

argument. 

¶177 In its closing, defense counsel argued to the jury 

that the opinions of Drs. Morenz and Sullivan were unreliable 

because they were based in part upon the Carlos Logan evidence, 

which was “a complete lie.” Counsel implied that the 

information that Logan reported about Moody was fabricated and 

derived from newspaper articles and police reports, and 

suggested that Logan provided no details of the murders until he 

was offered a plea deal four months after his arrest. 

¶178 On rebuttal, the prosecutor made three arguments 

designed to rebut these claims. First, he argued that Detective 

Wright did not discover that some of what Carlos Logan had said 
- 95 -

was not true until September of 1995, long after the grand jury 

testimony and police reports had been disseminated to the 

doctors. Next, he argued that some of the Carlos Logan 

information must be true because Logan had no way, other than a 

first-person report from Moody, to know that Moody “stabbed [an] 

old woman” or was featured on “America’s Most Wanted.” Finally, 

the prosecutor asked the jury to consider how Moody must have 

met Logan — a “small-time crack seller” — when considering the 

defense’s theory that Moody was not a cocaine addict and was not 

under the influence of cocaine at the time of the murders. 

¶179 Moody made no contemporaneous objection to the 

prosecutor’s comments during rebuttal argument. Failure to 

object to a prosecutor’s comments during closing argument limits 

our review to one for fundamental error only. See State v. 

Phillips, 202 Ariz. 427, 437, ¶ 48, 46 P.3d 1048, 1058 (2002). 

¶180 Counsel is given “wide latitude” in closing argument 

to “comment on the evidence and argue all reasonable inferences” 

from it. State v. McDaniel, 136 Ariz. 188, 197, 665 P.2d 70, 79 

(1983). Further, “[c]omments that are invited and prompted by 

opposing counsel’s arguments are not improper if they are 

reasonable and pertinent to the issues raised.” State v. 

Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997). The 

prosecutor’s comments fall into this category. 
- 96 -

¶181 The State claims that telling the jury that the Carlos 

Logan information was given to the doctors before the State knew 

that it was false was intended to rebut defense counsel’s claim 

that Carlos Logan’s false statements were “fed to mental health 

professionals” to taint their opinions. The State maintains 

that defense counsel invited this comment by putting at issue 

the State’s motive for supplying the Carlos Logan information to 

the doctors. We agree. Defense counsel’s suggestion that the 

State intentionally tainted its experts opened the door for the 

prosecution to rebut the assertion. 

¶182 The State defends the prosecutor’s argument that Logan 

must have learned certain information from Moody because Logan 

had no access to any other sources containing that information. 

The State argues that this inference was invited by the 

defense’s suggestion that all of Logan’s evidence was false, or 

at least was not learned from Moody, and that none of it should 

have been considered by the doctors. We agree that the 

prosecutor’s argument responded to arguments raised by defense 

counsel in closing. It was also pertinent to the case because 

Dr. Morenz testified that he relied at least in part on the 

information in making his determination that Moody was 

malingering, and an argument that he relied on false evidence 

harms his credibility. 
- 97 -

¶183 The third comment — that Moody met with Logan, “a 

small-time crack seller” — supports the inference that Moody was 

a crack user. Evidence that Logan had sold crack had been 

introduced by Moody’s counsel in his cross-examination of 

Detective Wright. Moody had attempted to show that Logan should 

not be believed because he was a criminal and a crack dealer. 

Thus, the evidence was before the jury and its use was not 

objected-to in closing. 

¶184 The inference that Moody met Logan, a crack dealer, 

supported the prosecution’s theory that Moody was a crack user. 

This reasonable inference was supported by other evidence in the 

record as well. For example, Moody never disputed that he had a 

substantial crack-cocaine habit in the months before the 

murders. Tucson Citizen reporter David Teibel testified that 

Moody told him he had spent “three to four thousand dollars” on 

“massive doses” of cocaine shortly before the Malone murder. 

Moody’s ex-girlfriend also testified that, to support his 

substantial crack-cocaine habit, Moody had sold all of his 

appliances and much of his furniture and had pawned guns, 

jewelry, and other items to obtain money to buy crack. Dr. 

Morenz testified that Moody told him that aliens forced him to 

use “massive quantities” of cocaine, a claim that Moody repeated 

to his own expert, Dr. Lewis. Crack pipes and other 
- 98 -

paraphernalia were found in the vehicle that Moody stole from 

Patricia Magda after killing her. Additionally, defense counsel 

had already put evidence before the jury that Carlos Logan had 

twelve separate drug-related arrests or convictions over the 

previous decade, and the jury also heard evidence that Logan 

told authorities he sold Moody pieces of “rock cocaine” in the 

day-and-a-half before his arrest. Given the volume of evidence 

on this point, we conclude that the prosecutor’s comment, by 

itself, did not constitute error or deny Moody a fair trial. 

 5. Increasing the Defense Burden of Proof

¶185 As the final act of prosecutorial misconduct, Moody 

challenges the prosecutor’s statement in closing argument that 

the defense had the burden of producing “evidence that makes it 

highly probable” that Moody was insane at the time of the 

murders and was “not malingering.” The prosecutor reiterated 

this burden in rebuttal closing argument. Moody claims that 

this argument impermissibly increased his burden of proof and he 

argues that reversal is required as a result. We disagree. 

¶186 A defendant is required to prove insanity “by clear 

and convincing evidence.” A.R.S. § 13-502(B) (1989).14 This 

court has held the “clear and convincing” and “highly probable” 

 

14 This requirement is now found in section (C). The section 

cited in text is the version applicable to Moody’s case. 
- 99 -

standards to be interchangeable. State v. King, 158 Ariz. 419, 

423-24, 763 P.2d 239, 243-44 (1988). Thus, Moody would have a 

legitimate claim here only if he could demonstrate that the 

burden to show that he is not faking insanity somehow differed 

from the burden to show that he was, in fact, insane. 

¶187 We fail to see the distinction between the two. To 

demonstrate that one is insane, one must demonstrate that the 

insanity is real and not “faked” or, as used in this case, 

“malingered.” Moody fails to explain how the prosecution 

misstated the applicable burden in this case and cites no 

authority supporting his position. Consequently, we do not find 

any error and decline to reverse Moody’s convictions on this 

ground. 

M. Incorrect Jury Instruction on Intoxication

¶188 Moody alleges that the court improperly instructed the 

jury on the effect of intoxication. When Moody committed the 

murders in November of 1993, A.R.S. § 13-503 (1989) provided as 

follows: 

[W]hen the actual existence of the culpable mental 

state of intentionally or with the intent to is a 

necessary element to constitute any particular species 

or degree of offense, the jury may take into 

consideration the fact that the accused was 

intoxicated at the time in determining the culpable 

mental state with which he committed the act. 

That statute was amended effective January 2, 1994, to eliminate 
- 100 -

temporary intoxication as a defense “for any criminal act or 

requisite state of mind.” A.R.S. § 13-503 (2001); 1993 Ariz. 

Sess. Laws, ch. 256, §§ 2, 3. Rather than instructing the jury 

that intoxication could be considered in determining Moody’s 

mental state at the time of the acts, the trial court instructed 

the jury on the later version of the statute, which disallows 

intoxication as a defense. 

¶189 Normally, we review de novo a claim that a jury 

instruction misstates the law. State v. Orendain, 188 Ariz. 54, 

56, 932 P.2d 1325, 1327 (1997). However, Moody failed to object 

to the instruction and therefore did not preserve this issue for 

appeal.15 See State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049, 

1054 (1989) (“Failure to object to a jury instruction below 

precludes defendant from claiming error on appeal unless the 

error is fundamental.”). 

 

15 Moody argues that he did object to the instruction. A 

review of the record makes clear that he did not object to this 

instruction on the ground that it did not state the law in 

effect at the time Moody committed his crimes. Instead, Moody 

objected to a related instruction that intoxication is not a 

valid defense if it aggravates a preexisting mental illness. He 

objected to this latter instruction only on the ground that 

there was “no evidence of intoxication.” The court sustained 

the objection. Moody never objected, however, to the court’s § 

13-503 instruction; his general objection to a related 

instruction is not sufficient to preserve this issue for appeal. 

See State v. Long, 119 Ariz. 327, 328, 580 P.2d 1181, 1182 

(1978) (holding that raising one objection to a jury instruction 

does not preserve other objections on appeal). 
- 101 -

¶190 Moody offers two separate arguments that the error in 

this case is fundamental and requires reversal: (1) the 

instruction was erroneous because it misstated the law, and (2) 

the instruction violated the Ex Post Facto Clauses of the United 

States and Arizona Constitutions. U.S. Const. art. I, § 9; 

Ariz. Const. art. 2, § 25. 

¶191 We agree that the instruction given misstated the law 

in effect at the time Moody committed his crimes and therefore 

constitutes error. See State v. Walker, 138 Ariz. 491, 494, 675 

P.2d 1310, 1313 (1984) (finding an instruction that misstates 

the law is an error). Moreover, the change in A.R.S. § 13-503 

was substantive because it deprived Moody of a defense that 

existed at the time he committed his crimes. Thus the Ex Post 

Facto Clauses of the United States and Arizona Constitutions 

require that the version of § 13-503 in effect at the time the 

crimes were committed be applied. See State v. Correll, 148 

Ariz. 468, 481-82, 715 P.2d 721, 734-35 (1986) (finding that a 

change in a capital sentencing aggravating factor was a 

substantive change that required application of the version in 

effect at the time the offense was committed). 

¶192 The error in giving the incorrect jury instruction was 

compounded by the prosecutor, who argued the improper 

instruction to the jury. He stated: “just so we’re clear, 
- 102 -

temporary intoxication is not insanity. That’s not me saying 

that[;] you’re going to get an instruction that says this: the 

fact he’s using drugs and on drugs or withdrawing from drugs is 

not insanity . . . . It is not a defense and it is not 

insanity.” 

¶193 However, because Moody failed to object and our review 

is limited to fundamental error, we can reverse on this basis 

only if the error is “of such dimensions” that it deprived him 

of a fair trial. See Smith, 114 Ariz. at 420, 561 P.2d at 744. 

Because of the defenses asserted and the facts placed before the 

jury in this case, we do not find the error fundamental. 

¶194 Throughout trial, the defense strategy was to distance 

Moody from drug use and show that the murders were the result of 

psychosis, not cocaine addiction or intoxication by drug use. 

Indeed, arguing against a State-proposed instruction on 

intoxication, defense counsel urged that the court could not 

give it because it was unsupported. He denied that there was 

any “evidence of intoxication during the event.” He noted that 

the only evidence that Moody was using drugs was Dora King’s 

statement that Moody had smoked crack approximately seven days 

before the first murder. Thus, defense counsel argued, the jury 

was provided “no evidence [Moody] was intoxicated” at the time 

of the killings. While the State attempted to argue that 
- 103 -

evidence presented of Moody’s past drug use suggested that the 

motive for committing the crimes was to get money to buy more 

cocaine, defense counsel argued that an instruction on 

intoxication would be “inviting the jury to speculate where 

there is no evidence.” Although there was substantial evidence 

of extensive drug use in the weeks before the murders, see supra 

¶¶ 183-84, there was no evidence of intoxication at the time of 

the offense. 

¶195 In urging that reversal is required here, Moody relies 

on State v. Hudson, 85 Ariz. 77, 331 P.2d 1092 (1958), in which 

we reversed the defendant’s murder conviction and remanded for a 

new trial because the trial court failed to give an instruction 

on voluntary intoxication. The defendant in that case, however, 

expressly defended on the grounds that he lacked the requisite 

mental state because he was intoxicated, and, unlike Moody’s 

case, in Hudson there was some evidence of intoxication at the 

time of the murders, as well as intoxication in the days 

preceding them. Id. The evidence indicated that the defendant 

had “helped consume a total of two and three-fourths gallons or 

eleven quarts of wine on the day of the killing and the day 

preceding it.” Id. at 81, 331 P.2d at 1095. In light of this 

evidence, we held that the trial court’s failure to properly 

instruct the jury on the effect of intoxication deprived the 
- 104 -

defendant of an “important right, which the law accorded him, to 

have the jury pass on the truthfulness of his story, and, if 

they believed that he was intoxicated to any extent to say 

whether such intoxication prevented him from entertaining the 

malice necessary to constitute murder in the second degree.” 

Id.

¶196 In Moody’s case, the defense attempted to defeat any 

evidence of drug use and consistently argued that there was no 

evidence that Moody used drugs near the time of the murders. 

Moody presented evidence throughout trial demonstrating that 

these crimes were caused by psychosis and not by cocaine. Nor 

did the State present any evidence that Moody was intoxicated at 

the time of the murders. As a result, instructing the jury 

regarding the effect of intoxication at the time of the murders 

did not negate a culpable mental state and did not render 

Moody’s trial fundamentally unfair. Consequently, relief is 

denied on this ground.

N. Failure to Give a Voluntary Act Instruction 

¶197 Moody alleges error in the trial court’s refusal to 

give a voluntary act instruction. The proposed instruction 

directly tracked the language of A.R.S. § 13-201 (2001) that 

“[t]he minimum requirement for criminal liability is the 

performance by a person of conduct which includes a voluntary 
- 105 -

act or the omission to perform a duty imposed by law which the 

person is physically capable of performing.” We review a trial 

court’s refusal to give a jury instruction for an abuse of 

discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 

849 (1995). A defendant is entitled to a jury instruction on 

any theory reasonably supported by the evidence. State v. 

Melendez, 121 Ariz. 1, 5, 588 P.2d 294, 298 (1978). 

¶198 Moody argues that his defense at trial was that he was 

not in control of his actions, and that this argument was 

supported by the testimony of Drs. Lewis, Morenz, and Sullivan, 

all of whom testified that Moody reported not being in control 

of his actions. Moody misconstrues the voluntary act necessary 

to support the imposition of criminal responsibility. As a 

result, the trial court correctly determined that a voluntary 

act instruction was not reasonably supported by the evidence. 

¶199 In State v. Lara, 183 Ariz. 233, 234, 902 P.2d 1337, 

1338 (1995), this court clarified that the “voluntary act” 

requirement of A.R.S. § 13-201 merely codified the common-law 

actus reus requirement. In Lara, the defendant asserted that he 

had not acted voluntarily because he suffered from an organic 

brain impairment and personality disorder. Id. We held, 

however, that “the term ‘voluntary act’ [means] a determined 

conscious bodily movement, in contrast to a knee-jerk reflex 
- 106 -

driven by the autonomic nervous system.” Id. at 234-35, 902 

P.2d at 1338-39. We noted “bodily movement[s] while 

unconscious, asleep, under hypnosis, or during an epileptic fit” 

as examples of involuntary acts. Id. at 234, 902 P.2d at 1338. 

Thus, despite Lara’s brain damage and personality disorders, the 

court found no evidence that his act was involuntary: “Lara’s 

expert testimony falls far short of this. [Lara] was not 

unconscious. [He] was relentless in his effort and 

determination. He was thus not entitled to a voluntary act 

instruction under A.R.S. § 13-201.” Id.

¶200 The same reasoning applies in this case. Moody’s 

alleged dissociative identity disorder, narcissistic personality 

disorder, and other brain impairments may bear upon the mens rea 

determination, but do not inform the actus reus determination. 

See A.R.S. § 13-502(A). As in Lara, no expert testimony here 

suggested that Moody’s actions were not performed consciously 

and as a result of effort and determination. Of the many 

doctors who testified at the various stages of this trial, only 

Dr. Lewis opined that Moody “was clearly in a dissociated state” 

at the time of the murders, and that it “is not uncommon in 

people who dissociate [to] feel as though they’re being 

controlled by something else.” (Emphasis added.) Even if the 

jury accepted this testimony, Moody’s self-reported feeling of 
- 107 -

not being in control falls short of demonstrating that his 

actions were not voluntary. No mental health expert suggested 

that Moody was actually being controlled by something or someone 

else, which is what Lara requires to demonstrate the lack of a 

voluntary act. 183 Ariz. at 235, 902 P.2d at 1339 (requiring “a 

knee-jerk reflex driven by the autonomic nervous system”). 

¶201 No evidence in this case reasonably supported a 

finding of a lack of a voluntary act. Consequently, Moody was 

not entitled to a voluntary act instruction and the trial court 

did not abuse its discretion in refusing to give one. 

O. Refusal to Permit Surrebuttal Argument

¶202 Moody contends that because he bore the burden of 

proof on the insanity defense, the trial court should have 

allowed him to make a surrebuttal argument and its refusal to do 

so constituted “constitutional and prejudicial error.” 

Preliminarily, we note that the record is not clear whether 

defense counsel ever requested surrebuttal argument: The record 

is devoid of any evidence that Moody requested surrebuttal 

argument either during discussions about closing argument and 

jury instructions or after the prosecution’s rebuttal argument.16

 

16 The only record cite Moody provides is the following 

comment by defense counsel during voir dire that prospective 

jurors should be warned that the trial might last a long time: 
- 108 -

 

Consequently, the argument appears to have been waived. 

¶203 Even had Moody preserved this issue for appeal, 

however, whether to permit surrebuttal argument is a decision 

committed to the discretion of the trial court. See State v. 

Jensen, 153 Ariz. 171, 180, 735 P.2d 781, 790 (1987) (upholding 

the trial court’s denial of surrebuttal testimony). On appeal, 

we will not disturb the court’s rulings absent an abuse of that 

discretion. Id. The only authority Moody cites suggesting that 

the court abused its discretion is the dissenting opinion in 

State v. Zimmerman, 166 Ariz. 325, 331, 802 P.2d 1024, 1030 

(App. 1990) (Kleinschmidt, J., dissenting), which suggests that 

because the defendant bears the burden of proving an insanity 

defense, it should be an abuse of discretion to not allow 

surrebuttal. 

¶204 We decline to hold that the failure to permit 

surrebuttal when there has been no request for it constitutes an 

I do not know how many rebuttal witnesses, and the 

Court has not yet made any indication whether or not 

you’re going to allow a surrebuttal, since we do have 

the burden of proof on that issue and certainly also 

if we’re going to have surrebuttal argument on the 

issue of insanity, that will impact on it. 

Moody cites this statement for the proposition that “Counsel 

requested surrebuttal on insanity but was denied.” Because we 

could find no evidence of a request for surrebuttal or denial of 

such a request anywhere in the record, we conclude that any such 

request was waived. 
- 109 -

abuse of discretion. We opt not to create a per se rule 

requiring surrebuttal argument in all cases in which insanity is 

raised as a defense, and reaffirm our previous holdings granting 

discretion to the trial judge to determine whether to permit 

surrebuttal in a given case. See, e.g., State v. Steelman, 120 

Ariz. 301, 319, 585 P.2d 1213, 1231 (1978). 

P. Failure to Instruct on Effect of NGBRI Verdict

¶205 Finally, Moody argues that the trial court erred by 

refusing to give an instruction that would explain to the jury 

that a “not guilty by reason of insanity” (“NGBRI”) verdict 

would not result in Moody’s release. Defense counsel twice 

requested such an instruction, once while settling jury 

instructions and once following the State’s rebuttal argument, 

in which the prosecutor urged the jury not to “cut [Moody] 

loose.” Both times the court refused to give it, indicating 

that before the jurors began deliberating it would give a 

general instruction that the jury should not consider the 

punishment or consequences to which Moody might be subject if 

convicted. Moody contends that the failure to instruct the jury 

on the actual effect of an NGBRI verdict violated his rights to 

due process and a fair trial. 

¶206 The failure to instruct the jury on the consequences 

of an NGBRI verdict is not, by itself, error. State v. Doss, 
- 110 -

116 Ariz. 156, 161, 568 P.2d 1054, 1059 (1977) (citing State v.

Jensen, 111 Ariz. 408, 531 P.2d 531 (1975), and State v. Peats, 

106 Ariz. 254, 475 P.2d 238 (1970)). Rather, “[t]he decision to 

refuse a jury instruction is within the trial court’s 

discretion, and this court will not reverse it absent a clear 

abuse of that discretion.” Bolton, 182 Ariz. at 309, 896 P.2d 

at 849. 

¶207 We agree with Moody that an instruction regarding the 

effect of an NGBRI verdict might have helped mitigate the effect 

of the prosecutor’s statement in closing argument. See supra ¶¶ 

146-52. This court has previously held, however, that such an 

instruction is not required and we noted that the jury’s 

understanding of the ramifications of “guilty” and “not guilty” 

verdicts is incomplete because “a jury can never know whether a 

sentencing judge will give the maximum sentence possible or a 

lesser one, or whether he will suspend imposition of sentence 

and grant probation.” Jensen, 111 Ariz. at 410, 531 P.2d at 

533. We therefore concluded in Jensen that the jurors “had an 

obligation of finding the defendant guilty, not guilty or not 

guilty by reason of insanity . . . . What happened after their 

verdict was not their concern.” Id. Because there was ample 

precedent in our case law for the trial court’s decision not to 

give the NGBRI instruction, we find no abuse of discretion in 
- 111 -

failing to give the instruction generally. 

¶208 Moody also alleges that the failure to give the 

instruction immediately after the prosecutor exhorted the jury 

not to “cut [Moody] loose” constituted error. The trial court 

sustained a defense objection to the statement and instructed 

the jury to disregard it. Before deliberations, the court 

instructed the jury not to consider or discuss “the possible 

punishment or consequences” that would flow from a verdict of 

guilt. We presume that jurors follow the court’s instructions. 

State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994). 

Consequently, we find no reversible error in the failure to give 

an NGBRI instruction. 

IV. SENTENCING ISSUES

¶209 Moody was sentenced to death under a procedure found 

unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002) (“Ring 

II”). In Ring II, the United States Supreme Court held that 

Arizona’s former capital sentencing scheme violated the 

defendant’s Sixth Amendment right to a jury trial. Id. at 609.17 

In doing so, the Court held that defendants “are entitled to a 

jury determination of any fact on which the legislature 

 

17 The legislature has amended the capital sentencing statute 

so that sentencing factors in capital cases are now tried before 

juries. See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1. 
- 112 -

conditions an increase in their maximum punishment.” Id. at 

589. The Court remanded the case for further proceedings 

consistent with its decision. Id. at 609. 

¶210 Moody’s case was one of several death penalty cases we 

consolidated on remand to determine whether Ring II required 

reversal or vacatur of the death sentences. State v. Ring, 204 

Ariz. 534, 544, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (“Ring III”). 

We review the sentence imposed under Arizona’s superseded 

capital sentencing statute for harmless error. Id. at 555, ¶ 

53, 65 P.3d at 936. 

¶211 An aggravation/mitigation hearing in Moody’s case was 

conducted over the course of three days in December 2001 and 

January 2002. In the special verdict, the court found the 

following aggravating factors with respect to both murders: (1) 

Moody had been convicted of a separate offense for which life 

imprisonment was imposable, A.R.S. § 13-703(F)(1) (1993); (2) he 

committed the murders in the expectation of pecuniary gain, id.

§ 13-703(F)(5); and (3) he committed the murders in an 

especially cruel, heinous or depraved manner, id. § 13-

703(F)(6). 

¶212 Moody alleged eleven mitigating circumstances. Of 

these, the trial court found four: (1) lack of a criminal 

record, (2) good character in his professional life, (3) 
- 113 -

military service, and (4) nonviolent character and lack of prior 

violent history. Weighing the four proven mitigating 

circumstances against the three aggravating circumstances, the 

court found the mitigators “insufficient to call for leniency.” 

The court imposed sentences of death for the murders of Michelle 

Malone and Patricia Magda. 

¶213 In Ring III, we concluded that judicial fact-finding 

in the capital sentencing process may constitute harmless error 

if we can conclude beyond a reasonable doubt that no reasonable 

jury would fail to find the aggravating circumstance. 204 Ariz. 

at 555, 565, ¶¶ 53, 102-04, 65 P.3d at 936, 946. We now examine 

whether the Ring II error was harmless with respect to the 

sentences imposed by the trial judge in Moody’s case. 

A. Aggravating Circumstances

 1. Prior Convictions

¶214 Arizona Revised Statutes § 13-703(F)(1) lists as an 

aggravating circumstance that the “defendant has been convicted 

of another offense in the United States for which under Arizona 

law a sentence of life imprisonment or death was imposable.” In 

this case, the trial court found that the jury’s verdict of 

guilt as to Michelle Malone’s murder satisfied this aggravating 

factor for the Patricia Magda conviction, and that the jury’s 

verdict of guilt as to the Magda murder satisfied the factor for 
- 114 -

the Malone conviction. Moody argues that because the 

convictions occurred at the same time, neither of these 

convictions can serve as an historical prior conviction for the 

other. 

¶215 This court has held that the order of the crimes or 

convictions themselves is not important. See State v. Lee, 189 

Ariz. 590, 604, 944 P.2d 1204, 1218 (1997). The relevant 

inquiry is whether the convictions were entered before the 

sentencing hearing. Id. Moody’s convictions were entered 

before his sentencing hearing. Consequently, there was no error 

in allowing each murder to be used as a prior serious offense 

with respect to the other murder. 

¶216 We have also affirmed the legal conclusion that a 

murder conviction is one “for which under Arizona law a sentence 

of life imprisonment or death was imposable” without remanding 

for a jury finding. State v. Nordstrom, 206 Ariz. 242, 245, ¶ 

7, 77 P.3d 40, 43 (2003). Moody concedes that this court has 

held that the (F)(1) factor falls outside the Ring mandate and 

does not require a jury finding. See Ring III, 204 Ariz. at 

556, ¶ 55, 65 P.3d at 937; see also State v. Lehr, 205 Ariz. 

107, 109, ¶ 6, 67 P.3d 703, 705 (2003). We decline to reexamine 

the issue. Moody raises no other basis upon which we might 

disturb the trial court’s finding that the (F)(1) aggravating 
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factor was proven beyond a reasonable doubt as to both murders. 

We therefore affirm this ruling. 

 2. Pecuniary Gain

¶217 It is a statutory aggravating factor in Arizona that 

the defendant “committed the offense as consideration for the 

receipt, or in expectation of the receipt, of anything of 

pecuniary value.” A.R.S. § 13-703(F)(5). This factor is 

satisfied only “if the expectation of pecuniary gain is a 

motive, cause, or impetus for the murder and not merely a result 

of the murder.” State v. Hyde, 186 Ariz. 252, 280, 921 P.2d 

655, 683 (1996). It is not enough merely to show that a 

defendant took property or money after a murder occurred. State 

v. Wallace, 151 Ariz. 362, 368, 728 P.2d 232, 238 (1986) (citing 

State v. Gillies, 135 Ariz. 500, 512, 662 P.2d 1007, 1019 

(1983)); see also State v. Armstrong, No. CR-00-0595-AP, 2004 WL 

1576636, at *2 n.2, ¶ 7 (Ariz. July 15, 2004) (confirming this 

court’s application of the Hyde and Wallace standards). The 

(F)(5) inquiry is “highly fact-intensive” and requires the state 

to “establish the connection between the murder and motive 

through direct or strong circumstantial evidence.” Ring III, 

204 Ariz. at 560, ¶ 76, 65 P.3d at 941 (citing State v. Cañez, 

202 Ariz. 133, 159, ¶ 94, 42 P.3d 564, 590 (2002)). 

¶218 In this case, the trial court found the pecuniary gain 
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factor based on three considerations: at the time of the 

murders, Moody was suffering “severe financial difficulty”; 

Moody entered the Malone and Magda homes “for the purpose of 

obtaining property of value”; and the property obtained from 

those homes was used “shortly after each of the murders . . . to 

obtain cash.” 

¶219 In response, Moody notes that these are all questions 

of fact that a jury could resolve differently than did the trial 

judge. The defense team presented evidence at trial that Moody 

was suffering from brain dysfunction, psychosis, and 

dissociative identity disorder, and that he was in a 

“dissociative state” at the time of the murders. Additionally, 

there was substantial evidence at trial that Moody had used 

“massive amounts” of cocaine at some time before the murders and 

that heavy cocaine use can lead to violent behavior. Finally, 

there was evidence that a small television, a microwave, 

jewelry, and cocaine were left behind at one of the murder 

scenes. 

¶220 We will not deem harmless the finding of an (F)(5) 

aggravating factor if circumstantial evidence and witness 

credibility could be weighed differently by a reasonable jury 

than they were by the sentencing judge. State v. Hoskins, 204 

Ariz. 572, 574, ¶ 6, 65 P.3d 953, 955 (2003); see also State v. 
- 117 -

Rutledge, 206 Ariz. 172, 175, ¶ 14, 76 P.3d 443, 446 (2003). 

That Moody had a pecuniary motive to murder Malone and Magda is 

a plausible inference that may be drawn from the circumstantial 

evidence, but it is not the only reasonable inference that may 

be drawn. Because a reasonable jury could differently assess 

the evidence upon which the trial judge based his pecuniary gain 

finding, we cannot conclude that the trial court’s finding of 

the (F)(5) factor was harmless. 

 3. Especially Heinous, Cruel, or Depraved

¶221 A murder may also be aggravated if a defendant 

“committed the offense in an especially heinous, cruel or 

depraved manner.” A.R.S. § 13-703(F)(6). To establish this 

factor, the state must prove at least one of these three 

components beyond a reasonable doubt. State v. Cropper, 206 

Ariz. 153, 156, ¶ 11, 76 P.3d 424, 427 (2003). The trial judge 

found that both murders were especially cruel and that both 

demonstrated “especial heinousness or depravity.” 

 a. Especially Cruel 

¶222 The trial judge first found that Moody committed both 

murders in an especially cruel manner. In State v. Knapp, we 

defined “cruel” as “disposed to inflict pain esp. in a wanton, 

insensate or vindictive manner: sadistic.” 114 Ariz. 531, 543, 

562 P.2d 704, 716 (1977) (quoting Webster’s Third New 
- 118 -

International Dictionary). Physical cruelty exists if “the 

victim consciously experienced physical or mental pain prior to 

death, and the defendant knew or should have known that 

suffering would occur.” State v. Trostle, 191 Ariz. 4, 18, 951 

P.2d 869, 883 (1997) (citations omitted). 

¶223 As to the Malone murder, the trial judge found 

evidence of a defensive wound to her hand, a broken fingernail, 

a lost contact lens, blood throughout the house, and Moody’s 

admissions to “establish that there was a violent struggle 

before Mr. Moody subdued Ms. Malone by tying her into a chair.” 

The trial judge also considered the fact that Malone knew Moody 

and he knew she could identify him if she survived, that the 

evidence suggested she suffered multiple injuries inflicted 

before her death, and that she raised her hand in a defensive 

gesture to defend against the first bullet. The court concluded 

that “Michelle Malone was clearly conscious until at least that 

point,” and that “[t]he murder of Michelle Malone was especially 

cruel, because she consciously suffered physical pain and mental 

anguish for a fairly prolonged period of time, and clearly the 

Defendant knew of her suffering.” 

¶224 As evidence that Magda suffered pain, the trial judge 

found that Moody tied her up with neckties and cords tightly 

enough to leave marks on her arms and wrists. Further, because 
- 119 -

 

Moody went to the bank twice and communicated with Magda both 

times after returning, the trial court concluded that Magda must 

have been conscious and suffering for some period of time. 

Ultimately, the court concluded that “[t]he prolonged ordeal 

. . . surely caused her anguish: physical anguish due to the 

restraints and her immobility and mental anguish due to the 

uncertainty of her fate and the knowledge that the defendant was 

aware she could identify him as her attacker if she survived.”18

¶225 Based on these facts, we conclude that no reasonable 

jury could find that Malone did not “experience[] physical or 

mental pain prior to death.” See Trostle, 191 Ariz. at 18, 951 

P.2d at 883. The same could be said for Magda. 

¶226 However, Trostle contains an additional requirement: 

that “the defendant knew or should have known that suffering 

would occur.” Id. Because evidence was presented that Moody 

was in a “dissociated state” due to psychosis, drug impairment, 

or both, we cannot conclude beyond a reasonable doubt that a 

reasonable jury could not find other than the trial court did on 

this issue. Consequently, we cannot affirm the trial court’s 

18 Because the timing was uncertain regarding the many 

puncture wounds on Magda’s body, the court could not say beyond 

a reasonable doubt that she was conscious during the infliction 

of the wounds and did not consider them in the (F)(6) 

examination. 
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finding of special cruelty as to either count. 

 b. Especially Heinous and Depraved

¶227 The trial judge also found that both murders were 

especially heinous and depraved. Our case law sets forth five 

factors that should be considered in determining heinousness and 

depravity: (1) whether the defendant relished the murder, (2) 

whether he inflicted gratuitous violence, (3) whether he 

needlessly mutilated the bodies, (4) whether the crimes were 

senseless, and (5) whether the victims were helpless. State v. 

Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983). 

¶228 In this case, the trial court based its findings of 

heinousness and depravity on the use of gratuitous violence, the 

senselessness of the murders, and the helplessness of the 

victims. The court found that both murders involved more 

violence than was necessary to cause death: four gunshot wounds 

and multiple injuries to Malone’s body, and twenty-four blunt 

force injuries and nine to fourteen sharp force injuries to 

Magda’s body. The trial judge found both murders senseless 

because it was not necessary to kill the victims to accomplish 

the theft of their property, and he found the victims helpless 

because they were bound and restrained. 

¶229 Regarding the gratuitous violence finding, in this 

case no expert was able to pinpoint exactly which injuries 
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caused the death of each victim, and the State never attempted 

to establish that Moody knew which shots or blows caused each 

death. Consequently, we conclude that a reasonable jury might 

arrive at a different conclusion than the trial judge did on 

whether the State established that Moody inflicted gratuitous 

violence. 

¶230 Even if we could conclude that no reasonable jury 

could fail to find the senselessness and helplessness factors, 

without the gratuitous violence factor the other factors are 

substantially less weighty: “Senselessness and helplessness are 

less probative of the defendant’s state of mind than are 

relishing, gratuitous violence, and mutilation.” Hyde, 186 

Ariz. at 281, 921 P.2d at 684. “Therefore, senselessness and 

helplessness, without the presence of other factors, are usually 

insufficient to establish depravity beyond a reasonable doubt.” 

State v. Prince, 206 Ariz. 24, 27, ¶ 10, 75 P.3d 114, 117 

(2003). 

¶231 As was true regarding the intentionally cruel 

component, we cannot affirm an (F)(6) finding based on findings 

of intentionally heinous or depraved acts unless we can conclude 

that no reasonable jury could arrive at a different conclusion 

than the trial judge did. See, e.g., id. at 28, ¶ 12, 75 P.3d 

at 118. Ultimately, the cruel, heinous, and depraved aggravator 
- 122 -

depends on the defendant’s state of mind and the assessment of 

sometimes conflicting facts. See, e.g., id. at 27, ¶ 9, 75 P.3d 

at 117; Cropper, 206 Ariz. at 156, ¶ 11, 76 P.3d at 427 

(analyzing cruelty factor). Because Moody’s mental state was 

hotly contested throughout trial and sentencing, we cannot 

conclude beyond a reasonable doubt that no jury would accept the 

defense’s argument that Moody lacked the requisite state of mind 

to satisfy this aggravator. 

B. Mitigating Factors

¶232 Our harmless error inquiry does not end with an 

examination of the aggravating circumstances. Because we can 

affirm a capital sentence only if we can conclude beyond a 

reasonable doubt “that no rational trier of fact would determine 

that the mitigating circumstances were sufficiently substantial 

to call for leniency,” we must also consider whether reversible 

error occurred with respect to the mitigating circumstances. 

Ring III, 204 Ariz. at 565, ¶ 104, 65 P.3d at 946. 

¶233 At his sentencing hearing, Moody offered eleven 

mitigating circumstances for the court’s consideration. One of 

these was statutory — that his “capacity to appreciate the 

wrongfulness of his conduct or to conform his conduct to the 

requirements of law was significantly impaired, but not so 

impaired as to constitute a defense to prosecution.” A.R.S. § 
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13-703(G)(1). The remainder were non-statutory: his lack of 

any prior criminal history, good character for parenting, good 

character in his professional life, military service, 

psychosocial stressors, cocaine use and addiction, nonviolent 

character and lack of prior violent history, correlation between 

physical abuse as a child and subsequent substance abuse as an 

adult, the inability to appreciate the nature and consequences 

of his actions, and a nonviolent, law-abiding character. 

¶234 The trial judge found four of the mitigating factors: 

lack of criminal record, good character in his professional 

life, military service, and lack of prior violent history. He 

gave little weight to them, however, and concluded that they 

were insufficient to call for leniency. 

¶235 Based on the conflicting evidence in this record on 

these issues, we cannot conclude beyond a reasonable doubt that 

no rational jury would find other than as the trial judge found. 

A reasonable jury might have found additional mitigating factors 

or weighed differently the mitigating factors that were found. 

We also cannot say beyond a reasonable doubt that if a jury had 

found additional mitigating circumstances or weighed the 

mitigating circumstances differently, it would not have found 

them “sufficiently substantial to call for leniency.” A.R.S. § 

13-703(E). Therefore, we conclude that the Ring II error was 
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not harmless in this case. 

V. CONCLUSION

¶236 For the foregoing reasons, we affirm Moody’s 

convictions for the first degree murders of Michelle Malone and 

Patricia Magda. However, because we cannot find harmless error 

in his sentencing procedure, we vacate Moody’s death sentence 

and remand this case for jury resentencing pursuant to A.R.S. §§ 

13-703 and -703.01. 

 __________________________________ 

 Rebecca White Berch, Justice 

CONCURRING: 

_____________________________________ 

Ruth V. McGregor, Vice Chief Justice 

_____________________________________ 

Michael D. Ryan, Justice 

_____________________________________ 

Sheldon H. Weisberg, Judge* 

*The Honorable Andrew D. Hurwitz recused himself. Pursuant to 

Article 6, Section 3 of the Arizona Constitution, the Honorable 

Sheldon H. Weisberg, Chief Judge of the Arizona Court of 

Appeals, Division One, was designated to sit in Justice 

Hurwitz’s place. 
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J O N E S, Chief Justice, concurring in part, dissenting in 

part:

¶237 I concur in the judgment of the court both as to 

Moody’s convictions and the remand for resentencing. I dissent, 

however, from the majority’s conclusion that harmless error 

analysis is appropriate where sentencing determinations, 

including factual findings on aggravating circumstances, are 

made by the trial judge in the absence of the jury. I would 

remand the case for resentencing solely on the basis of the 

Sixth Amendment violation of the right to trial by jury on 

statutory aggravating factors relative to the death penalty. 

See State v. Armstrong, _____ Ariz. ____, ¶¶ 25-37, ___ P.3d ___ 

(2004) (supplemental opinion) (Jones, C.J., concurring in part 

and dissenting in part); see also State v. Sansing, 206 Ariz. 

232, 241-42, ¶¶ 40-46, 77 P.3d 30, 39-40 (2003) (Jones, C.J., 

dissenting). 

 __________________________________ 

 Charles E. Jones, Chief Justice