State v. Moody8/9/2004
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 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 *1146 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 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 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: j
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