State v. Moody

• Citation: 94 P.3d 1119,208 Ariz. 424
• Decision Date: 09 August 2004
• Docket Number: No. CR-02-0044-AP.,CR-02-0044-AP.
• Parties: STATE of Arizona, Appellee, v. Robert Joe MOODY, Appellant.
• Court: Supreme Court of Arizona

94 P.3d 1119

208 Ariz. 424

STATE of Arizona, Appellee, v. Robert Joe MOODY, Appellant.

No. CR-02-0044-AP.

Supreme Court of Arizona, En Banc.

August 9, 2004.

Janet A. Napolitano, Former Arizona Attorney General, Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, and Donna J. Lam, Assistant Attorney General, Tucson, Attorneys for State of Arizona, Appellee.

Susan A. Kettlewell, Pima County Public Defender's Office by Frank P. Leto, Deputy Public Defender and Brian X. Metcalf, Deputy Public Defender, Tucson, Attorneys for Robert Joe Moody, Appellant.

OPINION

BERCH, Justice.

¶ 1 In 2001, Appellant Robert Joe Moody was convicted of two counts of first degree murder for the deaths of Michelle Malone and Patricia Magda. The trial judge sentenced him to death pursuant to Arizona Revised Statutes ("A.R.S.") § 13-703 (Supp.1993). An automatic Notice of Appeal was filed pursuant to Rule 31.2(b) of the Arizona Rules of Criminal Procedure. This court has jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2001).

I. FACTS¹

¶ 2 On November 15, 1993, Robert Moody drove to the home of his ex-girlfriend's friend, Michelle Malone. After ascertaining that Malone was alone, Moody knocked on the door. Malone answered and let him in.

¶ 3 Moody followed Malone into the kitchen. There, he pulled a kitchen knife from his coat pocket and attacked her. Malone tried to defend herself, cutting her hand in the process. Moody held Malone by the neck and forced her into her home office, where he emptied her purse and took cash, a checkbook, and some credit cards. He ordered Malone to write a check for $500. Because that check was smeared with blood, he made her 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 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 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 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 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 judge found the multiple conviction, pecuniary gain, and especially cruel, heinous or depraved aggravating factors applicable to both murders. The court found that the defense failed to prove any statutory mitigating factors, but did prove four non-statutory mitigating factors: lack of prior criminal history, good employment history, military service, and non-violent character. But weighing the mitigating factors against the three aggravating factors, the court concluded that they were insufficient to call for leniency and imposed a sentence of death for each homicide.

III. TRIAL ISSUES

A. Double Jeopardy Bar of the Second Trial

¶ 17 Moody argues that the second trial should have been barred by the Double Jeopardy Clauses of the United States and Arizona Constitutions. See U.S. Const. amend. V; Ariz. Const. art. 2, § 10. He makes two separate double jeopardy arguments. First, he argues that double jeopardy should have barred retrial because the prosecutor committed egregious misconduct in the first trial. Alternatively, he argues that the principles of double jeopardy should have prevented the State from improving its case at the second trial.

1. Double Jeopardy Bar of Retrial

¶ 18 Whether double jeopardy bars retrial is a question of 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...