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State v. Moody8/8/2004
oody'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.
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 error by questioning jurors about those subjects that he feels were inadequately addressed when offered the opportunity to do so.
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.
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
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."
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
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.
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
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