State v. Wassenaar

• Decision Date: 17 July 2007
• Docket Number: Nos. 1 CA-CR 05-0765, 1 CA-CR 05-0975.,s. 1 CA-CR 05-0765, 1 CA-CR 05-0975.
• Citation: 161 P.3d 608,215 Ariz. 565
• Parties: STATE of Arizona, Appellee, v. Ricky Kurt WASSENAAR, Appellant.
• Court: Arizona Court of Appeals

161 P.3d 608

215 Ariz. 565

STATE of Arizona, Appellee, v. Ricky Kurt WASSENAAR, Appellant.

Nos. 1 CA-CR 05-0765, 1 CA-CR 05-0975.

Court of Appeals of Arizona, Division 1, Department D.

July 17, 2007.

Terry Goddard, Attorney General, By Randall M. Howe, Chief Counsel, Criminal Appeals Section, and Joseph L. Parkhurst, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, By James L. Edgar, Deputy Public Defender, Stephen R. Collins, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

JOHNSEN, Judge.

¶ 1 Ricky Kurt Wassenaar ("Defendant") appeals his convictions on ten counts of dangerous or deadly assault by a prisoner, five counts of kidnapping and one count each of promoting prison contraband, first-degree escape, sexual assault and aggravated assault. We address the following issues:

1. Whether the trial court erred when it designated the case as complex pursuant to Rule 8.2(a)(3)(iii) of the Arizona Rules of Criminal Procedure;

2. Whether Defendant's right to a speedy trial was denied;

3. Whether Defendant's waiver of counsel was knowing and intelligent;

4. Whether Defendant's right to self-representation was violated when he was required to testify through questions posed by his advisory counsel;

5. Whether the trial court erred when it precluded evidence that Defendant had not previously assaulted a corrections officer;

6. Whether the trial court erred when it precluded evidence regarding why, following his apprehension, Defendant attempted to smuggle a handcuff key into a federal prison facility;

7. Whether the trial court erred when it ordered that Defendant be surreptitiously secured to the witness chair during his testimony; and

8. Whether the trial court erred when it failed to hold an evidentiary hearing regarding whether any jurors saw the restraints that secured Defendant to the witness chair.

For the reasons that follow, we affirm Defendant's convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 "We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). In our review of the record, we resolve any conflict in the evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

¶ 3 The charges against Defendant arose from a 15-day prison standoff at the Lewis Complex of the Arizona Department of Corrections ("DOC"), where Defendant was serving a 28-year sentence. He and an accomplice, Steven Coy, attempted to escape in the early morning hours of January 18, 2004. Using homemade knives called "shanks," Defendant and Coy subdued a corrections officer and a civilian employee working in a kitchen area. Defendant then shaved his beard and mustache and donned the officer's uniform. Defendant next made his way to a guard tower and "buzzed" the personnel inside for permission to enter. Because Defendant appeared on the tower security monitor to be a corrections officer, personnel in the tower opened a gate and tower door remotely and allowed him inside. When Defendant encountered the first officer in the tower, he struck him in the face with a metal kitchen paddle and incapacitated him. Moments later, when Defendant encountered a second officer, he struck her in the face with his knee and subdued her. Defendant handcuffed both officers and gained control of the tower, with the two handcuffed corrections officers both inside.

¶ 4 As Coy made his way from the kitchen to the tower, he encountered a guard in the dining hall and slashed his face with a shank. Once Coy exited the dining hall and approached the tower, other DOC personnel attempted to stop him. As they did so, Defendant shot at them with a rifle he had obtained from inside the tower. As DOC personnel scattered from the immediate area, Coy was able to enter the tower.

¶ 5 Because the entire complex had by that time been alerted to the violence, Defendant and Coy could go no further than the tower, and the standoff began. Among other acts against the two hostages in the tower during the standoff, Defendant and Coy sexually assaulted the female officer. Six days after the standoff began, they released the male officer, but the female officer was not released until Defendant and Coy surrendered on February 1, 2004.

¶ 6 Defendant was indicted on 27 counts in two separate indictments, of which 20 counts ultimately were submitted to the jury. Defendant represented himself at trial with the assistance of advisory counsel. Trial began March 9, 2005 and ended on May 4, 2005.

¶ 7 Defendant was found guilty of 19 counts as related above but was acquitted of one count of attempted second-degree murder. He does not contest the sufficiency of the evidence to support his convictions. Defendant was ultimately sentenced to 16 consecutive life sentences for each count of assault by a prisoner, kidnapping and sexual assault. He also was sentenced to terms of 15.75, 12 and 10 years' imprisonment for promoting prison contraband, first-degree escape and aggravated assault, respectively.

II. SPEEDY TRIAL RIGHTS

A. Designation of Case as "Complex."

¶ 8 Under Arizona law, a defendant in custody generally must be tried within 150 days of arraignment. Ariz. R.Crim. P. 8.2(a)(1). However, Rule 8.2(a)(3)(iii) provides that if a case in which the indictment was filed between December 1, 2002 and December 1, 2005 is designated as "complex," it shall be tried within one year from arraignment. Defendant's indictments were filed in 2004. He argues that his case was not complex and that, as a result, he should have been tried within 150 days of arraignment pursuant to Rule 8.2(a)(1). He argues that because his trial was not begun within 150 days of arraignment, the charges against him should have been dismissed.

¶ 9 We review for abuse of discretion a trial court's determination of whether a case is complex for purposes of Rule 8. See Snyder v. Donato, 211 Ariz. 117, 119, ¶ 7, 118 P.3d 632, 634 (App. 2005). A case is "complex" if it is "so complicated, by virtue of its nature or because of the evidence required, that the ordinary limits for the time to trial are insufficient and must be extended to afford more time to prepare so that the case can be fairly and fully presented." Id. at 120, ¶ 12, 118 P.3d at 635. The trial court found Defendant's case was complex because of the unique circumstances of the case, the number of trial witnesses and exhibits, the presence of scientific evidence, the nature and extent of the necessary discovery and the time to comply with discovery obligations.

¶ 10 We find no abuse of discretion. The circumstances of this case made it unique. Hundreds of people were involved in the 15-day prison standoff out of which the charges against Defendant arose. The case took nearly two months to try. It required a large amount of discovery, all of which had to be disclosed to an incarcerated defendant representing himself in propria persona. Of the witnesses identified in discovery, nearly 60 testified at trial. More than 500 pieces of evidence were identified and disclosed, and approximately 370 of those items were introduced in evidence. Much of the evidence consisted of medical and/or scientific evidence, including DNA evidence, and included testimony from medical providers and forensics personnel. As we found in Snyder, the distinct nature of this case and the discovery and evidentiary logistics involved were not mere "run-of-the-mill discovery and evidentiary problems" that would preclude a complex designation. Id. at 122, ¶ 20, 118 P.3d at 637. This case, "by virtue of its nature or because of the evidence required," could properly be designated as complex. Id. at 120, ¶ 12, 118 P.3d at 635.

¶ 11 Abuse of discretion is "an exercise of discretion which is manifestly unreasonable, exercised on untenable grounds or for untenable reasons." State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App. 1992) (quoting Williams v. Williams, 166 Ariz. 260, 265, 801 P.2d 495, 500 (App. 1990)). We find the trial court did not abuse its discretion when it designated the case as complex pursuant to Rule 8.2(a)(3)(iii).

B. Trial Continuance.

¶ 12 Defendant next argues that he was denied his right to a speedy trial pursuant to Rule 8 of the Arizona Rules of Criminal Procedure, the Sixth Amendment and the Arizona Constitution.

¶ 13 The charges against Defendant were presented in two separate indictments. He was arraigned on the charges presented in the first indictment on February 27, 2004, and was arraigned on the charges presented in the second indictment on March 29, 2004. The cases were consolidated on April 30, 2004. As noted above, Rule 8.2(a)(3)(iii) provides that a complex case filed in 2004 shall be tried within one year from arraignment. The trial court selected the February arraignment as the date from which to calculate the one-year trial deadline, and set the last day to begin trial as February 27, 2005.

¶ 14 As that deadline approached, the trial court noted that it would be presiding over an older capital murder case at that time. The court noted that because of the "many, many motions" it had considered in this case, the unique facts of the case and the fact that it had presided over proceedings involving Coy, it would be in the best position to preside over Defendant's trial. When the trial court raised with the presiding criminal judge the subject of the two conflicting trial dates, the presiding judge also agreed that because of the number of motions the trial court had considered and the unique facts of the case, it would not be proper to transfer Defendant's case to another court for trial.

¶ 15 Under these circumstances, the trial court found its unavailability to be an extraordinary circumstance and that a continuance was indispensable to the interests...