116 P.3d 1193 (Ariz. 2005), CR-03-0022, State v. Glassel

Docket Nº:CR-03-0022-AP.
Citation:116 P.3d 1193, 211 Ariz. 33
Opinion Judge:[9] The opinion of the court was delivered by: Ryan, Justice
Party Name:STATE of Arizona, Appellee, v. Richard J. GLASSEL, Appellant.
Attorney:[7] Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Capital Litigation Section Robert L. Ellman, Assistant Attorney General; Phoenix Attorneys for State of Arizona. [8] James J. Haas, Maricopa County Public Defender By James R. Rummage, Deputy Public Defender Garrett W....
Case Date:August 10, 2005
Court:Supreme Court of Arizona

Page 1193

116 P.3d 1193 (Ariz. 2005)

211 Ariz. 33

STATE of Arizona, Appellee,

v.

Richard J. GLASSEL, Appellant.

No. CR-03-0022-AP.

Supreme Court of Arizona, En Banc.

Aug. 10, 2005

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Terry Goddard, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Robert L. Ellman, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender, by James R. Rummage, Deputy Public Defender, Garrett W. Simpson, Deputy Public Defender, Phoenix, Attorneys for Richard J. Glassel.

OPINION

RYAN, Justice.

¶ 1 A Maricopa County jury convicted Appellant Richard Jock Glassel of two counts of premeditated first degree murder for the April 19, 2000, murders of Nila Lynn and Esther LaPlante. The jury also convicted Glassel of thirty counts of attempted first degree murder. Following aggravation and penalty hearings, the jury determined that death sentences were appropriate for the two murders. The trial court imposed the two death sentences and also imposed aggravated concurrent and consecutive sentences for the attempted murder convictions, which totaled 351 years in prison. An automatic notice of appeal was filed under Rules 26.15 and 31.2(b), Arizona Rules of Criminal Procedure, and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001). This Court has jurisdiction under Article 6, Section 5.3 of the Arizona Constitution and A.R.S. § 13-4031.

I

A

¶ 2 Glassel, who owned a home at Ventana Lakes, had several disputes with the Ventana Lakes Homeowners Association. The first dispute concerned people parking in front of mailboxes near Glassel's house. The second dispute involved landscapers doing yard maintenance on Glassel's property. The third related to Glassel's extended picketing of the Lennar Homes sales office.

¶ 3 The mailbox dispute arose because Glassel believed that gas fumes from cars parked in front of the mailboxes came into his house. Glassel dealt with the situation by parking his car directly in front of the mailboxes. Glassel was asked by Ms. Ramsland, a representative of the Homeowners Association, to move his car, but he refused. After repeated complaints, the car was towed; Glassel then went to Ramsland's office and yelled at her for having it towed.

¶ 4 Several months later, Glassel became agitated because landscapers were trimming his bushes and trees against his wishes. When members of the Homeowners Association's

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Landscaping Committee tried to explain to Glassel that they had to do the maintenance, Glassel became belligerent and aggressive. The Homeowners Association filed a lawsuit against Glassel because he would not let the landscapers trim the trees or bushes.

¶ 5 The final dispute, Glassel's picketing of the Lennar Homes sales office, seems to have arisen from the previous disputes. 1 In February 1999, a member of the Homeowners Association and Glassel argued over the picketing. Glassel then told a friend that the Homeowners Association had not heard the last of him and that he would get even. Eventually, Glassel's house was foreclosed upon, and he moved to California.

¶ 6 More than a year later, on April 19, 2000, the Homeowners Association held a regularly scheduled meeting. Duane Lynn and Esther LaPlante, members of the Board, were seated at the head table. Nila Lynn, Duane Lynn's wife, was seated in the audience. The meeting was recorded. In addition to the people attending the Homeowners Association meeting, others were in nearby rooms playing cards.

¶ 7 The day before, Glassel had returned to Arizona from California. He rented a truck and cleaned out a storage locker in which he apparently had stored several weapons and ammunition. He drove to Ventana Lakes while the April 19 meeting was taking place and parked in front of the building. Glassel walked into the meeting armed with an AR-15 assault rifle, fully loaded with thirty rounds of ammunition, two fully loaded 9-millimeter pistols and a ten-round .22 caliber pistol. He carried 384 rounds of ammunition 2 and had another 369 rounds in his truck.

¶ 8 Lyle and Beverley Baade were leaving the meeting when they encountered Glassel. Glassel said, "You're not going anywhere." Lyle then responded that they were going to the doctor. Glassel told them to "[g]o back and sit down." When Lyle said that he had a doctor's appointment, Glassel shoved him in the left shoulder, telling Lyle, "I said go back and sit down." Lyle then noticed that Glassel was carrying a pistol and yelled out, "He's got a gun." Glassel said, "I am going to kill you all" or "I'm going to kill all of you." He then fired eight shots in rapid succession from the .22 caliber pistol, paused briefly, and then fired the last two rounds. One bullet struck Nila Lynn in the back, killing her. Esther LaPlante was struck in the arm and head and also died. One other man was shot in the abdomen and another in the thigh.

¶ 9 When the pistol was out of bullets, Glassel put it down and reached for the AR-15 assault rifle. Lyle rushed Glassel and tackled him, struggling to gain control of the rifle. Despite Lyle's efforts, Glassel managed to get a finger to the trigger and fired one shot. The bullet hit yet another man in the foot, causing him to lose a toe. As Lyle and Glassel struggled, Beverley Baade cried for help. Several people responded and held Glassel down until police arrived. A woman at the scene and asked Glassel why he had done it. Glassel answered, "I did it to get even, you fucking sons-of-bitches," or "They fucked me long enough. I'm getting even."

B

¶ 10 On April 26, 2000, a Maricopa County grand jury indicted Glassel with two counts of first degree murder and thirty counts of attempted first degree murder. The Maricopa County Public Defender's Office was appointed to represent him.

¶ 11 On December 10, 2001, Glassel filed a pro per motion to change counsel. The trial judge denied that motion. Glassel then filed a pro per motion to represent himself. On January 14, 2002, the trial judge reconsidered the December 10 motion and appointed an attorney from the Maricopa County Legal Defender's Office to be Glassel's new defense

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counsel and set the trial for September 23, 2002.

¶ 12 On June 24, 2002, the United States Supreme Court decided Ring v. Arizona, which held that capital defendants "are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ( Ring II ). The legislature subsequently amended Arizona's death penalty statutes, A.R.S. §§ 13-703 to -703.05, effective on August 1, 2002. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, §§ 1, 3. The amended sentencing statutes assigned to juries the responsibility of finding aggravating circumstances and determining whether to impose the death penalty. A.R.S. §§ 13-703, -703.01 (Supp.2004).

¶ 13 Glassel's attorney informed the trial court that he would not be ready to try the case on September 23 if the new death penalty statutes applied, claiming that he would not have enough time to prepare mitigation evidence before trial. 3 Counsel also indicated that he had had personal problems in his family that made it difficult to prepare for trial.

¶ 14 Counsel filed a motion to continue, which was granted, and trial was set for November 18, 2002. 4 On November 7, 2002, Glassel's attorney filed a motion to withdraw, which the superior court denied.

¶ 15 After a five-day trial, the jury found Glassel guilty on all counts charged. The jury further found for each count of attempted murder that Glassel "commit[ed] a dangerous offense by use or threatening exhibition of a deadly weapon." A.R.S. § 13-604(I) (Supp.1999).

¶ 16 In the aggravation phase, the jury found that two or more murders were committed during the commission of the offense. See A.R.S. § 13-703(F)(8) (Supp.2003). In the penalty phase, the jury concluded that any mitigation was insufficient to call for leniency, and determined that Glassel should be sentenced to death.

II

¶ 17 Glassel first argues that the application of the new death penalty statute, A.R.S. § 13-703.01, to his case constitutes an ex post facto violation under Article I, Section 10, Clause 1 of the United States Constitution and Article 2, Section 25 of the Arizona Constitution, as well as A.R.S. § 1-244 (2002). We have previously held that A.R.S. § 13-703.01 is not an ex post facto violation because the change in the statutory method was merely procedural. State v. Ring, 204 Ariz. 534, 547, ¶ 23, 65 P.3d 915, 928 (2003) ( Ring III ) (citing Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)). The United States Supreme Court reached the same conclusion in Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). In Schriro, the Court considered whether its decision in Ring II applied retroactively to cases already final on direct review, and concluded that it did not because Ring II announced a new procedural, rather than a substantive, rule. Id. at ----, 124 S.Ct. at 2523 (quoting Ring II, 536 U.S. at 609, 122 S.Ct. 2428) (citations omitted).

¶ 18 Glassel presents no argument that would compel us to revisit Ring III. We recently rejected similar arguments in State v. Anderson, 210 Ariz. 327, 346, pp 74, 76-77, 111 P.3d 369, 388 (2005), and State v. Roseberry, 210 Ariz. 360, 364-65, ¶ 18, 111 P.3d 402, 406-07 (2005), and therefore reject Glassel's contentions.

III

¶ 19 Glassel next argues that the trial court abused its discretion when it found him competent to stand trial. "It has long been accepted that a person...

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