State v. Moody8/9/2004
admit that he considered the Carlos Logan information in arriving at his opinion that Moody was malingering. He indicated on direct examination that the Logan evidence was one of eleven factors that he considered in reaching his conclusions. Defense counsel then subjected Dr. Morenz to vigorous cross-examination that exposed to the jury that some of the information in the grand jury transcript was false and also exposed any possible prejudice Dr. Morenz might have developed from reading the grand jury transcript before meeting with Moody. This court has observed that cross-examination can place an expert's conclusions in context and help the jury appropriately weigh the testimony. State v. Schackart, 175 Ariz. 494, 502, 858 P.2d 639, 647 (1993) ("If the defense wishes to challenge the manner in which a mental examination has been conducted, or an expert's conclusions, this can be done on cross-examination or during the testimony of its own witness."); see also State v. Mincey, 141 Ariz. 425, 441, 687 P.2d 1180, 1196 (1984).
45 In light of all of the above--that Dr. Morenz appears to be the only expert at the second trial whose opinion was influenced even in part by the Logan evidence, that the Logan evidence supported only one of eleven bases for the doctor's conclusion that Moody was malingering, and that the doctor was subject to cross-examination sufficient to expose to the jury possible biases or flaws in his reasoning--Moody has not met his burden of demonstrating that the false information "contribut[ed] to or significantly affect[ed] the verdict." King, 158 Ariz. at 424, 763 P.2d at 244. We therefore conclude that there was no fundamental error on this issue.
D. The Competency Findings
46 Moody claims that the trial court deprived him of due process by failing to adjudicate him incompetent. He argues that the trial judge erred by privately reviewing unidentified portions of the record in determining that Moody was competent, failing to conduct a competency hearing until just before commencement of the trial, applying the wrong standard of competency, and finding him competent despite insufficient evidence to support such a finding. Consequently, Moody urges that his Fifth, Sixth, and Fourteenth Amendment rights were violated and that his convictions must be reversed.
1. Unilateral Examination of Evidence
47 Moody alleges that the trial judge's review of the record on competency constituted an impermissible competency determination. However, the record contains no evidence that defense counsel ever objected to the trial judge's review of the record on competency. Consequently, Moody has waived this claim and we review only for fundamental error. See Bolton, 182 Ariz. at 297, 896 P.2d at 837.
48 Moreover, Moody appears to misperceive the record. Arizona Rule of Criminal Procedure 11.5(a) and State v. Blier, 113 Ariz. 501, 503, 557 P.2d 1058, 1060 (1976), require that any competency hearing be open to the parties and guarantee the *1138 right of the defendant to be present. A competency hearing is required, however, only "[i]f the court determines that reasonable grounds for an examination exist." Ariz. R.Crim. P. 11.3(a); accord State v. Steelman, 120 Ariz. 301, 315, 585 P.2d 1213, 1227 (1978); State v. De Vote, 87 Ariz. 179, 182, 349 P.2d 189, 192 (1960); State v. Reid, 87 Ariz. 123, 126, 348 P.2d 731, 733 (1960). In determining whether reasonable grounds exist, a judge may rely, among other factors, on his own observations of the defendant's demeanor and ability to answer questions. See State v. Harding, 137 Ariz. 278, 286, 670 P.2d 383, 391 (1983) (upholding a trial court's determination that a defendant was competent to waive his right to counsel based on psychiatric reports and the trial court's ow
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