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State v. Moody8/8/2004
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."
Jury selection in Moody's second trial began the next day. After a fifteen-day trial, the jury again convicted Moody of both murders.
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
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
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).
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.
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 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).
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,
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