THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

ESPINOSA, Judge.

¶1 After the Arizona Supreme Court affirmed his two first-degree murder convictions but vacated his death sentence, State v. Moody, 208 Ariz. 424, ¶ 236, 94 P.3d 1119, 1168 (2004) (Moody II), Robert Moody was sentenced to two consecutive natural-life terms in prison. He appeals these sentences, arguing that the superior court erred in denying his various motions for change of judge and recusal and that his sentences consequently violated his due process rights under the federal and state constitutions. Because the incidents cited by Moody, considered both individually and collectively, fail to demonstrate bias on the part of the sentencing judge, we affirm.

Moody I and Moody II

¶2 We set forth the facts pertinent to the resolution of the issues before us. A more complete background of this case is reported at Moody II, 208 Ariz. 424, ¶¶ 2-16, 94 P.3d at 1130-32. In November 1993, Moody attacked a friend of his former girlfriend in her home and, while holding her at knifepoint, forced her to write him two checks for $500 each. Id. ¶¶ 2-3. He then shot and killed her. Id. ¶ 4. Five days later, Moody attacked and restrained a neighbor in her home, took her cash and bank cards, and, after leaving to withdraw additional cash from her bank account, returned and slit her throat, stabbed her, and bludgeoned her to death. Id. ¶¶ 5-6.

¶3 After a jury trial, Moody was convicted of two counts of first-degree murder and sentenced to death, but his convictions and sentence were vacated on appeal. State v. Moody, 192 Ariz. 505, ¶¶ 1, 24, 968 P.2d 578, 578, 582 (1998) (Moody I). On remand, another jury again found him guilty of two counts of first-degree murder, and he was again sentenced to death. Moody II, 208 Ariz. 424, ¶ 1, 94 P.3d at 1130. Our supreme court affirmed his convictions but vacated his death sentence, concluding it had been imposed under a procedure that the United States Supreme Court had found unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002) (Ring II). Moody II, 208 Ariz. 424, ¶¶ 209, 236, 94 P.3d at 1164, 1168.

Resentencing

¶4 Between May 2005 and October 2008, Moody and his advisory counsel filed, between them, nine motions requesting a change of judge for cause and one motion requesting that the sentencing judge recuse himself. The sentencing judge denied the motion for recusal, and the presiding judge of the Pima County Superior Court, see Ariz. R. Crim. P. 10.1(b), reviewed and denied Moody's various motions for change of judge without a hearing. Because Moody argues that judicial bias manifested itself in several different rulings and comments, individually and in the aggregate, that were made by the sentencing judge, we set forth in some detail the circumstances that he asserts demonstrated bias.

May 2005 Motion: Withdrawal of Counsel

¶5 In May 2005, Moody's then-counsel moved to withdraw "for the reason that irreconcilable differences have arisen that preclude . . . continued representation." At a hearing on the motion, the following discussion occurred:

Two weeks later, Moody filed a motion for change of judge, arguing, among other things, that the sentencing judge's comments revealed a "bias and prejudice" against him. The presiding judge noted that the motion was untimely and neither it nor the accompanying affidavit required by Rule 10.1(b) was signed or notarized. The judge nevertheless addressed the merits of the motion and found "no evidence of bias or partiality on the part of [the sentencing judge]." The sentencing judge thereafter granted the motion to withdraw that had been the subject of the May hearing and suggested "[i]t would be appropriate to appoint [Moody's post-conviction-relief counsel] as trial counsel" if counsel agreed.

July and September 2006 Motions: Competency Evaluation

¶6 In June 2006, Moody filed a motion to waive counsel and represent himself. Before ruling on the motion, the sentencing judge held a hearing and ordered that Moody undergo a mental and physical examination to determine whether he was competent to waive his right to counsel. At the hearing, after Moody objected to the examination on the ground that the judge had not articulated reasonable grounds to question his competency, the judge addressed separate issues relating to Moody's post-conviction proceedings pursuant to Rule 32, Ariz. R. Crim. P., and the following exchange took place:

Nine days later, Moody filed a motion for change of judge. The presiding judge denied the motion, finding "no evidence of bias or partiality on the part of [the sentencing judge] and therefore no legally sufficient grounds for a change of judge."

¶7 In September 2006, the sentencing court ordered sua sponte a competency evaluation pursuant to Rule 11.2(a), Ariz. R. Crim. P. Through counsel, Moody filed a written objection to the evaluation, arguing that the court had failed to include in its order reasonable grounds to support the examination as required by Rule 11.3(a) and had failed to allow Moody to submit the names of three experts from which the court could choose one to conduct the evaluation, as required by Rule 11.3(c). The court overruled the objection, finding Moody's motion was based on a misapprehension that the state had requested the Rule 11 hearing when in fact it was ordered on the court's own motion. In its under-advisement ruling, the court nevertheless set forth several reasons underlying its determination that a competency evaluation was warranted and also granted Moody leave to submit a list of "three qualified mental health experts."

¶8 On September 25, although still represented by counsel at this point, Moody filed a pro se motion for change of judge, arguing that by "review[ing] the trial and appellate record" to inform its determination that a competency evaluation was warranted, the sentencing judge "allowed himself to be tainted by the uncounseled record [in] Moody I," which explained his "biased and prejudiced opinions, words and actions." Moody's attorney filed a separate motion for change of judge, challenging the sentencing judge's denial of his requests for hearings on the issue of Moody's right to represent himself and alleging that the judge had violated Rule 11.3(c) by sua sponte appointing two experts to perform the competency evaluation. Moody's counsel contended, based on these various rulings, that the sentencing judge had "failed to perform [his] duties impartially and without bias or prejudice" and that Moody consequently was "entitled to a change of judge since a fair and impartial hearing[] and re-sentencing trial cannot be had by reason of the prejudice of the court."

¶9 The presiding judge considered only the motion filed by counsel, which he denied after noting that bias must arise from an "extra-judicial source" rather than what a judge has done in his participation in the particular case, and again finding "no evidence of bias or partiality on the part of [the sentencing judge]." The sentencing judge then granted Moody's motion to represent himself and reappointed his counsel as advisory counsel.

September 2007 Motions: Involuntary Absence from Hearing

¶10 In August 2007, a hearing was held regarding Moody's motion to continue the date of his Ring II sentencing trial and his request for additional investigative assistance. Apparently due to an oversight, Moody was not transported to the courthouse for the hearing; however, his advisory counsel was present. The sentencing judge granted Moody one hundred additional hours of investigative services. The judge also granted his motion to continue but deferred setting the new trial date until Moody could be present at the next scheduled hearing in September. At that hearing, Moody objected to the sentencing court's decision to proceed with the earlier hearing in his absence because it had left him "unable to make a record." The following colloquy then took place:

As the hearing continued, another exchange took place:

Near the end of the hearing, a final exchange occurred:

¶11 Ten days later, Moody filed a pro se motion for change of judge, arguing, inter alia, that the sentencing judge had exhibited bias by proceeding with the August hearing despite his involuntary absence and reiterating that he believed he could not receive a fair and impartial hearing before the sentencing judge. Advisory counsel joined in Moody's motion and further moved to disqualify the entire bench of the Pima County Superior Court on the ground that Moody's cause had been before five judges of that court over the life of the case and "any assigned judge will have already predetermined the allegations contained in the numerous motions that have [been] and will be filed."

¶12 The presiding judge denied both motions.1 With respect to the disqualification of the sentencing judge, the presiding judge found that "[t]he words and actions of the court of which Defendant complains arose directly from Defendant's inappropriate courtroom conduct" and concluded that the sentencing judge's response demonstrated no ill will toward Moody, "much less the level of hostility and animus required for his removal from the case." The presiding judge also declined to disqualify the entire superior court bench, explaining, "The mere length of time during which this case has been pending, with the attendant voluminous proceedings, is not unique, and does not warrant the relief requested." Moody sought special action relief in this court, but we declined to exercise jurisdiction.

April 2008 Motion for Recusal: Substantial Interest in Proceedings

¶13 In April 2008, Moody requested that the sentencing judge recuse himself pursuant to Canon 3(E)(1), Ariz. Code Judicial Conduct, Ariz. R. Sup. Ct. 81 (2008),2 based on the allegation that the judge and his brother had interests that could be substantially affected by the proceeding. Moody specifically alleged that, prior to his appointment to the bench, the judge and his brother had been law partners and during that time the judge's brother had publicly supported the candidacy of David White, the prosecutor in Moody's first trial, for the office of Pima County Attorney. Moody pointed to a number of the sentencing judge's purported interests that he argued required disqualification, including the judge's and his brother's "financial, professional, family, political and reputation interests," which Moody claimed could be affected by the proceedings in his case given the judge's alleged associations with White. See Canon 3(E)(1)(d)(iii) (2008). Moody also asserted that the judge's brother was "likely to be a material witness in the proceeding." See Canon 3(E)(1)(d)(iv) (2008).

¶14 The sentencing judge denied the motion, explaining in detail why he concluded none of the provisions of Canon 3(E) required his disqualification. With respect to Moody's particular complaints, the judge stated that neither he nor any person described in subsection (d) "is known by the judge to have an interest that could be substantially affected by the proceeding [or] is to the court's knowledge likely to be a material witness in the proceeding." Moody petitioned this court for special-action relief, and we again declined to exercise jurisdiction.

May and June 2008 Motions: Destroyed Documents and Denial of Stay

¶15 In May 2008, Moody again moved for a change of judge, asserting, inter alia, that the sentencing judge had failed to review and had destroyed confidential documents from the Arizona State Bar pertaining to an investigation of David White. While the motion was pending before the presiding judge, a hearing was held before the sentencing judge relating to other pending motions. Although Moody and advisory counsel moved to stay proceedings on the ground that a motion for change of judge was pending, the judge declined to issue the stay and heard argument on the motions, ultimately taking them under advisement. In denying the stay, the judge stated that he had not received a copy of any motion for change of judge.

¶16 The following day, the presiding judge denied the motion for a change of judge, observing,

The presiding judge again found no evidence of bias. Moody subsequently filed another motion for a change of judge, this time arguing that the sentencing judge's refusal to grant a stay of the May 27 hearing while his previous motion for change of judge was pending demonstrated bias. He also maintained that the judge "had to lie" when he stated he had not received a copy of the motion for change of judge. The presiding judge denied this motion too, noting she had not been called upon to determine whether the sentencing judge had erred by conducting the hearing in violation of Rule 10.6, Ariz. R. Crim. P., but rather to determine whether the failure to postpone the May 27 hearing, notwithstanding the then-pending motion for change of judge, in itself provided grounds for a change of judge. She concluded it did not.

October 2008 Motion: Denial of Oral Motion to Dismiss Death Penalty Notice

¶17 At an October 2008 status conference, the sentencing judge set a date for the Ring II sentencing trial. During the hearing, the following exchange occurred between the judge and Moody:

Moody once again moved for a change of judge, arguing that the sentencing judge's "sharp rebuke" to his "legally valid and proper motion to dismiss the State's allegation of the death penalty" evidenced "a hostile feeling or spirit of ill-will" toward him. Moody accused the judge of failing to manage the case properly and professionally and of having "allow[ed] prosecutorial misconduct to . . . delay resentencing for over four . . . years." The presiding judge denied the motion, reasoning, "As on previous occasions, the complained-of remarks by the trial judge arose directly from Defendant's own conduct, in this case his flippant treatment of the proceedings and his aggressive discourtesy to the court and failure to abide by the court's directives."

¶18 The state ultimately did withdraw its notice of intent to seek the death penalty, after Moody withdrew his waiver of counsel and accepted representation, and the superior court imposed two consecutive terms of natural life in prison. We have jurisdiction over Moody's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(4). See also Ariz. R. Crim. P. 10.1(b) ("Allegations of interest or prejudice which prevent a fair and impartial hearing or trial may be preserved for appeal.").

Discussion

¶19 Moody argues he was sentenced in violation of due process because the sentencing judge was biased against him and his motion for recusal and various motions for change of judge were erroneously denied. Specifically, he asserts that "[r]ulings[] and comments made by [the sentencing judge] demonstrated a deep seated animus toward [him] and favoritism towards the State and victims' families, which required the Judge to recuse himself and/or the presiding judge to assign the case to another judge or jurisdiction." We review for an abuse of discretion the denial of a motion for change of judge based on a claim of judicial bias, State v. Ramsey, 211 Ariz. 529, ¶ 37, 124 P.3d 756, 768 (App. 2005), but review constitutional issues and purely legal issues de novo. Moody II, 208 Ariz. 424, ¶ 62, 94 P.3d at 1140. However, judicial bias, if found, constitutes structural error, State v. Ring, 204 Ariz. 534, ¶ 46 & n.9, 65 P.3d 915, 933 & n.9 (2003) (Ring I), for which prejudice is presumed and vacatur mandatory. State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 236 (2009).3

¶20 "The constitutional right to a fair trial includes the right to a fair and impartial judge." State v. Ellison, 213 Ariz. 116, ¶ 35, 140 P.3d 899, 911 (2006). Rule 10.1(a), entitles a criminal defendant to a change of judge "if a fair and impartial hearing or trial cannot be had by reason of the interest or prejudice of the assigned judge." We strictly construe, however, any provision relating to disqualification of judges "to safeguard the judiciary from frivolous attacks upon its dignity and integrity and to ensure the orderly function of the judicial system." State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984), overruled on other grounds by State v. Noble, 152 Ariz. 284, 731 P.2d 1228 (1987). "Judges are presumed to be impartial, and the party moving for change of judge must prove a judge's bias or prejudice by a preponderance of the evidence." State v. Smith, 203 Ariz. 75, ¶ 13, 50 P.3d 825, 829 (2002). "`The fact that a judge may have an opinion as to the merits of the cause or a strong feeling about the type of litigation involved, does not make the judge biased or prejudiced.'" Perkins, 141 Ariz. at 286, 686 P.2d at 1256, quoting State v. Myers, 117 Ariz. 79, 86, 570 P.2d 1252, 1259 (1977).

¶21 Judicial rulings alone do not support a finding of bias or partiality without a showing of an extrajudicial source of bias or a deep-seated favoritism. Ellison, 213 Ariz. 116, ¶ 40, 140 P.3d at 912; State v. Schackart, 190 Ariz. 238, 257, 947 P.2d 315, 334 (1997); Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App. 1977). Moody does not point to an extrajudicial source of bias,4 and we disagree that recusal was required. The rulings and comments Moody points to, considered both individually and in the aggregate, fail to exhibit deep-seated animus or favoritism or otherwise overcome the presumption of impartiality. See State v. Smith, 203 Ariz. 75, ¶ 13, 50 P.3d at 829; see also State v. Hill, 174 Ariz. 313, 326, 848 P.2d 1375, 1388 (1993) (considering arguments of bias individually and in aggregate).

¶22 The sentencing judge's May 2005 statement that he was "led somewhat to the concern that any attorney who represents Mr. Moody is going to have irreconcilable differences" does not demonstrate bias. As our supreme court observed in Moody I, one of the factors a court must evaluate when considering a motion to substitute counsel is "`whether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict.'" 192 Ariz. 505, ¶ 11, 968 P.2d at 580, quoting State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987). And Moody's claim is further undermined by the fact that the judge ultimately allowed counsel to withdraw. See Ellison, 213 Ariz. 116, ¶ 40, 140 P.3d at 912 (finding no bias from trial court's rulings in favor of state because court ruled in defendant's favor in "several" instances).

¶23 As for the August 2007 hearing from which Moody apparently was involuntarily absent, although we do not condone conducting a hearing in the absence of a self-represented criminal defendant who has not waived his presence see State v. Bohn, 116 Ariz. 500, 503, 570 P.2d 187, 190 (1977) (defendant has right to be present "at every critical stage of his trial"), Moody does not assign error on appeal to the trial court's decision to proceed in his absence.5 Instead, the narrow question we are called upon to decide is whether proceeding with the hearing—despite Moody's absence—demonstrated bias on the part of the sentencing judge. We agree with the presiding judge that "[t]he record contains no hint that the [sentencing judge]'s determination to go forward . . . was the result of any desire to disadvantage Defendant or to interfere with his conduct of the case, or of any animus toward Defendant." We also observe that, despite Moody's absence, the sentencing judge granted his requests for additional investigative services and his motion to continue the Ring II sentencing trial, further weakening Moody's claim of bias. See Ellison, 213 Ariz. 116, ¶ 40, 140 P.3d at 912.

¶24 With respect to the exchanges between the sentencing judge and Moody at various hearings cited above, we disagree with Moody that they substantiate his claims of bias, as they do not evince "`a deep-seated favoritism or antagonism that would make fair judgment impossible.'" State v. Henry, 189 Ariz. 542, 546, 944 P.2d 57, 61 (1997), quoting Liteky v. United States, 510 U.S. 540, 555 (1994). The United States Supreme Court has explained that "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky, 510 U.S. at 555. The Liteky Court also remarked that "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women . . . sometimes display," do not establish bias or partiality. Id. at 555-56; see also State v. Gonzales, 181 Ariz. 502, 511-12, 892 P.2d 838, 847-48 (1995) (concluding defendant "was a difficult litigant" and, "while the judge understandably became impatient with him, particularly while he was acting pro per, none of the exchanges [between the judge and defendant] would support [a] claim of bias"); Hill, 174 Ariz. at 323, 848 P.2d at 1385 ("Even the best trial judge can run short on patience and turn from diplomacy to exasperation. While patience is a virtue, trial judges are human, and we recognize the difference between irritation and favoritism.").

¶25 We see nothing in the exchanges between Moody and the sentencing court that would rise to the level of antagonism necessary to demonstrate bias. Rather, these exchanges reflect Moody's own repeated attempts to continue to argue motions after unfavorable rulings, general disregard for the judge's directives, and even occasional instances of overt disdain for the court. By virtue of his position, the judge is vested with broad discretion in managing courtroom proceedings, including "the authority and the obligation to ensure that counsel, litigants, jurors, court personnel and spectators behave civilly." State v. Whalen, 192 Ariz. 103, 108, 961 P.2d 1051, 1056 (App. 1997) (affirming trial court's decision revoking defendant's self-representation because he refused to conduct his defense from counsel table); cf. E.L. Jones Constr. Co. v. Noland, 105 Ariz. 446, 452, 466 P.2d 740, 746 (1970) (trial court vested with great discretion in conduct and control of trial). The sentencing judge acted commensurately with that obligation.

¶26 The record supports the presiding judge's conclusion in her November 2008 ruling that Moody had not demonstrated bias because "the complained-of remarks by the trial judge arose directly from [Moody]'s own conduct, in this case his flippant treatment of the proceedings and his aggressive discourtesy to the court and failure to abide by the court's directives." Thus, as in Gonzales, we see no bias arising from the court's comments or actions. 181 Ariz. at 511-12, 892 P.2d at 847-48. We therefore find no abuse of discretion in the respective presiding judges' conclusions that none of the exchanges evinced "`a deep-seated favoritism or antagonism that would make fair judgment impossible.'" Henry, 189 Ariz. at 546, 944 P.2d at 61, quoting Liteky, 510 U.S. at 555.

¶27 Finally, Moody suggests the respective presiding judges erred by denying his requests for change of judge without first holding hearings on the motions. See Ariz. R. Crim. P. 10.1(c). But a presiding judge is required to grant a hearing on a Rule 10.1 motion only when it alleges facts which, if taken as true, would entitle the defendant to relief. State v. Eastlack, 180 Ariz. 243, 255, 883 P.2d 999, 1011 (1994) ("We will not require presiding judges to hold meaningless hearings when no grounds for relief are stated in the first instance."). As set forth above, the facts alleged by Moody in his respective motions do not demonstrate bias or partiality. The presiding judges therefore properly ruled on the motions without first holding hearings. See id.

Conclusion

¶28 For all the foregoing reasons, we conclude Moody has not demonstrated that the sentencing judge exhibited or harbored a "`deep-seated favoritism or antagonism'" toward either party to this prosecution. Henry, 189 Ariz. at 546, 944 P.2d at 61, quoting Liteky, 510 U.S. at 555.6 Thus, we find no error in the superior court's denial of his motions for recusal and change of judge and likewise reject his argument that his sentences were imposed in violation of due process. See Hill, 174 Ariz. at 322, 326, 848 P.2d at 1384, 1388 (rejecting defendant's due process argument where no bias shown). Accordingly, Moody's sentences are affirmed.

GARYE L. VÁSQUEZ, Presiding Judge, and VIRGINIA C. KELLY, Judge, concurring.