207 P.3d 604 (Ariz. 2009), CR-07-0153, State v. Dann

Docket Nº:CR-07-0153-AP.
Citation:207 P.3d 604, 220 Ariz. 351
Opinion Judge:McGREGOR, Chief Justice.
Party Name:STATE of Arizona, Appellee, v. Brian Jeffrey DANN, Appellant.
Attorney:Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Jon G. Anderson, Assistant Attorney General, Phoenix, Attorneys for State of Arizona. David Goldberg, Attorney at Law by David Goldberg, Fort Collins, CO, Attorney for Brian Jef...
Case Date:May 19, 2009
Court:Supreme Court of Arizona
 
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Page 604

207 P.3d 604 (Ariz. 2009)

220 Ariz. 351

STATE of Arizona, Appellee,

v.

Brian Jeffrey DANN, Appellant.

No. CR-07-0153-AP.

Supreme Court of Arizona, En Banc.

May 19, 2009

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Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Jon G. Anderson, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

David Goldberg, Attorney at Law by David Goldberg, Fort Collins, CO, Attorney for Brian Jeffrey Dann.

OPINION

McGREGOR, Chief Justice.

¶ 1 In 2001, a jury convicted Brian Jeffrey Dann of three counts of first degree murder and one count of first degree burglary. The

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trial judge imposed death sentences for each murder after finding one aggravating circumstance beyond a reasonable doubt. See Ariz.Rev.Stat. (A.R.S.) § 13-751.F.8 (Supp.2008).1 The judge concluded that the mitigating circumstances were not " sufficiently substantial to call for leniency" and sentenced Dann to death. See § 13-751.E.

¶ 2 On appeal, we reversed Dann's convictions for two of the premeditated murders, but affirmed one conviction of premeditated first degree murder, three convictions of first degree felony murder, and the conviction and sentence for first degree burglary. State v. Dann (Dann I ), 205 Ariz. 557, 576 ¶ 76, 74 P.3d 231, 250 (2003).

¶ 3 Dann was sentenced under a procedure later found unconstitutional in Ring v. Arizona (Ring II ), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In reviewing Dann's death sentences, we considered whether it was harmless error for the trial judge, rather than a jury, to have found the aggravating factor and to have determined that death sentences were appropriate. State v. Dann (Dann II ), 206 Ariz. 371, 373-74 ¶ ¶ 5-11, 79 P.3d 58, 60-61 (2003). We found harmless the trial judge's finding of the F.8 multiple murders aggravator. Id. at 374 ¶ 11, 79 P.3d at 61. We concluded, however, that resentencing was required because a reasonable jury could have reached a different conclusion regarding the significance of the mitigating circumstances. Id. at 374 ¶ 14, 79 P.3d at 61.

¶ 4 In 2007, a new jury found the F.8 aggravator and determined that the mitigation was not sufficiently substantial to warrant leniency and that the death penalty was appropriate.

¶ 5 Pursuant to Arizona Rule of Criminal Procedure 31.2.b, Dann's appeal to this Court is automatic. We exercise jurisdiction pursuant to Article 6, Section 5.3, of the Arizona Constitution and A.R.S. § 13-4031 (2001). For the reasons discussed below, we affirm Dann's death sentences.

I.2

¶ 6 On the evening of Saturday, April 3, 1999, Dann stopped at the home of his former girlfriend, Tina Pace-Morrell, to borrow a gun. He told Tina that Andrew Parks had fired a gun at him earlier in the day and he needed a gun for protection because he wanted to go to Andrew's apartment to pick up some of his belongings. Andrew Parks is the brother of Shelly Parks, then Dann's girlfriend. Tina loaned Dann a .38 caliber revolver.

¶ 7 That same night, Dann went to a bar he frequented in Phoenix. Dann told his friend George Thomas, who was also at the bar that evening, that he and Shelly were having problems. He related that Shelly's brother, Andrew, had shot at him earlier that day. Dann showed George the revolver he had borrowed from Tina, stating that he intended to " straighten out the problem." When George asked Dann what he intended to do with the gun, Dann said he intended to use it to kill Andrew. Dann also asked George for an unlicensed, untraceable " throw-away" gun. George refused Dann's request and spent the next two hours attempting to talk Dann out of his plan. By the end of the conversation, Dann seemed calmer and told George he was going home to go to bed. The bar's owner saw the men talking in the parking lot at 2:00 a.m. as she left the bar.

¶ 8 Tina testified that Dann called between 2:00 a.m. and 3:00 a.m. on Sunday, April 4, and told her that he had just shot three people. He asked what he should do. Tina advised Dann to turn himself in, but he refused. About thirty minutes later, he arrived at Tina's home and gave her the gun and five

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spent rounds. While there, he described how he had forced his way into Andrew's apartment, " leveled the gun," and shot Andrew, then Shelly, and then Eddie Payan, a friend who was visiting at the time. Dann recounted that he shot Andrew and Shelly because they laughed at him, and he shot Eddie because he witnessed the shootings of Andrew and Shelly. Dann asked Tina to tell the police he was with her throughout the night, thus providing him an alibi. Before leaving, he washed his hands and borrowed some clothes.

¶ 9 At about six a.m. on Sunday morning, Dann returned to Andrew's apartment and called 911. He reported that he had just discovered three bodies in the apartment. During the next few days, police interviewed Tina and George and located the revolver Dann had borrowed from Tina. Ballistics analysis of the gun and the bullets recovered at the scene indicated that the bullets that killed Andrew, Shelly, and Eddie were fired from the revolver. The medical examiner testified that Andrew was shot twice, once in the chest and once in the right temple; that Shelly was shot once, in the top of her head above the right ear; and that Eddie was shot twice, once behind the left ear and once in his right forehead. On April 7, 1999, Dann was arrested for the triple homicide.

II.

A.

¶ 10 Dann waived counsel and chose to represent himself at his resentencing. Dann's first argument on appeal is that he did not knowingly, intelligently, and voluntarily waive his right to counsel. " Whether an accused has made an intelligent and knowing waiver of counsel is a question of fact." State v. Doss, 116 Ariz. 156, 160, 568 P.2d 1054, 1058 (1977). A waiver finding is based substantially on the trial judge's observation of the defendant's appearance and actions. See id.

¶ 11 Shortly after we issued the mandate in this case, the trial judge held a status conference at which Dann moved for a change of judge and stated that he did not recognize James Logan, his 2001 trial counsel, as his attorney. The court granted Dann's motion for a change of judge and advised him that the new judge would decide whether to appoint new counsel.

¶ 12 On January 14, 2004, the new trial judge appointed Robert Storrs to represent Dann, but Storrs moved to withdraw on February 24, 2004. Dann argued that any attorney from the Office of Court Appointed Counsel from Maricopa County would have a conflict of interest because Dann's father had served as a Maricopa County Superior Court judge for twenty years. The court allowed Storrs to withdraw.

¶ 13 On February 25, 2004, the court appointed contract attorneys Michael Villareal and James Soslowsky. Villareal declined the appointment, but Soslowsky continued as co-counsel, and the court appointed John Schaus as lead counsel on March 9, 2004.

¶ 14 At the time of their appointment, Schaus and Soslowsky were preparing for another capital case and could not immediately work on Dann's case. Dann filed several motions alleging that counsel had a " conflict of interest" because they were not consulting him or actively representing him, and Dann requested a Faretta hearing. See Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). At the hearing, Dann informed the court he had reviewed the waiver of counsel form with Schaus and Soslowsky. Soslowsky explained the background of his appointment and recounted that he had informed Dann that he and Schaus were working on another capital case when appointed to this case. Both lawyers reiterated that they had no ethical basis for moving to withdraw. Dann stated that he wished to waive his right to counsel and defend himself.

¶ 15 The court then followed the waiver of counsel procedure set forth in Arizona Rule of Criminal Procedure 6.1.c. Dann avowed that he (1) had read the waiver form, (2) had no question about it, (3) understood the charges and potential penalties, and (4) understood the responsibilities and duties of defending himself. He also stated that he understood that his was a complex case and that he could change his mind and accept

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counsel at any time, but could not repeat completed proceedings. The court found that Dann had not shown counsel to have an actual conflict and, over Dann's protest, appointed Schaus and Soslowsky as advisory counsel. The court found a knowing, intelligent, and voluntary waiver of counsel.

¶ 16 The federal and state constitutions guarantee the right to waive counsel and to represent oneself. U.S. Const. amend. VI; id. amend. XIV; Ariz. Const. art. 2, § 24. Self-representation is a " fundamental constitutional right." Montgomery v. Sheldon, 181 Ariz. 256, 259, 889 P.2d 614, 617 (1995) (citing Faretta, 422 U.S. at 836, 95 S.Ct. 2525). In Edwards v. Arizona, the United States Supreme Court stated that a waiver of counsel " must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘ upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ " 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). A trial court may also consider evidence of a defendant's knowledge and understanding...

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