 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Moody8/8/2004
130 Ariz. at 435, 636 P.2d at 1217.
"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 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
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.
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 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
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.
On the first argument, Moody contends that the prosecutor used the reports of Drs. Potts, LaWall, Vesper, and Geffen to impeach defense experts Drs. Goldberg and Lewis. After Dr. Goldberg stated his conclusion that the results of the tests he administered to Moody were not consistent with someone who was malingering, the prosecutor asked Dr. Goldberg on cross examination whether he had reviewed a report by Dr. Geffen that 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.
Two days later, defense expert Dr. L
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|