SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0022-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR 2000-006872
RICHARD J. GLASSEL, )
)
Appellant. ) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Peter C. Reinstein, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Robert L. Ellman, Assistant Attorney General
Attorneys for State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By James R. Rummage, Deputy Public Defender
Garrett W. Simpson, Deputy Public Defender
Attorneys for Richard J. Glassel
________________________________________________________________
R Y A N, 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
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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
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
1
While the record is not clear on this point, it appears
that Glassel believed that Lennar Homes and the Homeowners
Association were identical entities.
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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 ammunition2 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
2
Three hundred seventy-three rounds of live ammunition were
found inside the meeting room. In addition, Glassel discharged
ten rounds from the .22 caliber pistol and one round from the
AR-15.
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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
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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 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 (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.
3
Before Ring II, there normally was a period between the
guilt and sentencing phase during which the defense was able to
gather mitigation evidence.
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¶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-
4
The judge granted the motion to continue because Glassel’s
attorney was involved in an existing trial, not because of his
arguments regarding the problems posed by juries imposing the
death sentence.
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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 (1977)). The United States
Supreme Court reached the same conclusion in Schriro v.
Summerlin, 542 U.S. 348, 124 S. Ct. 2519 (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) (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, ¶¶ 74, 76-77, 111 P.3d
369, 388 (2005), and State v. Roseberry, 210 Ariz. 360, ___, ¶
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 whose mental condition is such
that he lacks the capacity to understand the nature and object
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of the proceedings against him, to consult with counsel, and to
assist in preparing his defense may not be subjected to a
trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975). Glassel
claims that although he might have had a factual understanding
of the proceedings, he did not have the ability to consult with
his lawyer with a reasonable degree of rational understanding.
A
¶20 The superior court assigned Dr. Jack Potts, a
psychiatrist, to evaluate Glassel. Dr. Potts reported that he
thought there were reasonable grounds for further examination of
Glassel. See Ariz. R. Crim. Proc. 11.2(c) & (d). He found that
Glassel had a factual appreciation of the proceedings against
him but not a rational appreciation. According to Dr. Potts,
factual appreciation means an understanding of the roles
individuals play in the legal proceedings and the cognitive
ability to understand the nature of the proceedings. A rational
appreciation means the ability to use that factual understanding
and apply it in an appropriate fashion. He also concluded that
Glassel’s deficiencies rendered him unable to assist his counsel
in his defense. He ultimately concluded that Glassel was not
competent to stand trial and that he should be sent to the State
Hospital for further treatment and diagnosis.
¶21 The trial court later appointed Dr. Michael Brad
Bayless, a forensic psychologist, to evaluate Glassel. When Dr.
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Bayless examined Glassel, he told Dr. Bayless that there was a
conspiracy involving the president of the Homeowners
Association, Lennar Construction, the police, and the judge.
Glassel claimed that he had taken tape recordings to the FBI and
that the police were harassing him. He told Dr. Bayless he
believed that the Homeowners Association president was behind a
conspiracy at the jail, involving both inmates and guards, to
kill him. Dr. Bayless later pointed out, however, that Glassel
was not sufficiently terrified by the conspiracy to stop taking
medication offered by the jail or to stop eating food provided
to him. Nor was he unable to make inmate requests in a rational
manner.
¶22 Dr. Bayless concluded that Glassel was suffering from
a paranoid personality disorder and possibly a depressive
disorder. He believed, however, that Glassel understood the
nature of the charges and proceedings against him, the roles of
the various participants in the criminal justice system, and his
constitutional rights. Dr. Bayless, moreover, determined that
Glassel was capable of assisting his attorney in his own defense
and competent to stand trial.
¶23 The trial court also appointed Dr. Martin B. Kassel, a
psychiatrist, to evaluate Glassel. He interviewed Glassel for
more than an hour. In his report, Dr. Kassel concluded that
Glassel was competent, although he stated that it was “a very,
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very difficult case” and a “coin toss.” He wrote in his report,
however, that although Glassel refused to admit that he had a
mental illness, Glassel had a paranoid personality disorder and
was narcissistic and somewhat grandiose.
¶24 A competency hearing was held in August 2001. The day
before the hearing, Glassel’s first defense counsel faxed a
letter to Dr. Kassel. The letter indicated that Glassel had
“processed” defense counsel into his paranoid delusions and that
he considered her to be part of the conspiracy. Defense counsel
alleged that Glassel had become angry with her because he
thought that she refused to secure him certain privileges in
jail. He claimed that she and everyone in the public defender’s
office were part of the conspiracy.5 Based on the information
in that letter, Dr. Kassel changed his opinion because he no
longer believed that Glassel was able to assist his counsel in
preparing a defense.
¶25 After the competency hearing, the trial judge found
Dr. Bayless’ opinion to be persuasive and ruled Glassel
competent to stand trial. The trial judge based his findings
also in part on his own observations of Glassel in the
5
Glassel also believed that the court was involved in the
conspiracy. When the trial judge denied Glassel’s pro per
motion to change counsel, Glassel responded, “You can tell your
friend John McCain you have been doing an excellent job for
him.” When the trial judge informed Glassel that he did not
know Senator John McCain, Glassel responded, “I’m sure you do.
This proves you’re part of the conspiracy.”
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courtroom. He stated that “[t]he Court cannot exclude in its
final analysis of the Defendant’s competency, the Court’s own
observations of the Defendant during his frequent court
appearances.”
¶26 In November 2002, Glassel requested a new competency
hearing, arguing that his condition had worsened and that there
was new evidence of incompetence not available during the first
hearing. Glassel’s second counsel argued that he believed that
Glassel had incorporated him into his paranoia. The trial court
denied that motion.
B
¶27 We review a trial court’s finding of competency for
abuse of discretion. State v. Brewer, 170 Ariz. 486, 495, 826
P.2d 783, 792 (1992). We must determine whether reasonable
evidence supports the trial court’s finding that the defendant
was competent, considering the facts in the light most favorable
to sustaining the trial court’s finding. Id.
¶28 Although another finder of fact might have resolved
the competency issue differently, we cannot conclude that the
trial judge abused his discretion in finding Glassel competent
to stand trial. The judge based his findings not only on Dr.
Bayless’ testimony but also on his own observations of Glassel’s
interactions with his counsel in the courtroom. See State v.
Arnoldi, 176 Ariz. 236, 239, 860 P.2d 503, 506 (App. 1993)
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(holding that a trial judge can rely on personal observations in
determining competency) (citing State v. Bishop, 162 Ariz. 103,
106, 107, 781 P.2d 581, 584, 585 (1989)).
¶29 Glassel points to the following exchange between
defense counsel and Dr. Bayless as evidence that the trial court
abused its discretion in finding Glassel competent to stand
trial:
Q. Do you remember telling me that . . . “spending
time on competency is a waste of time because they’ll
just make him competent anyway”?
A. He will be found competent. He will be made
competent, more than likely, unless there is something
I missed or all the other doctors missed either. If
he is at the State Hospital, they’ll treat him and
send him back. That’s usually what happens, okay?
Very rarely does that not happen.
Glassel correctly contends that the fact that he would probably
be restored to competency is not a “waste of time.” But the
superior court was not precluded from crediting Dr. Bayless’
ultimate opinion on Glassel’s competency simply because of this
one misstatement by the expert. “The trial judge may rely on
some testimony from one expert and other testimony from another
expert and draw his own conclusions.” State v. Bishop, 162
Ariz. 103, 107, 781 P.2d 581, 585 (1989). In addition, “[t]he
trial judge is not required to accept or reject expert testimony
in toto and may rely on particular views of one or more experts
even though he or she may disagree with the expert’s ultimate
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conclusion.” Id.
¶30 Finally, we conclude that the superior court did not
abuse its discretion in finding Glassel competent to stand trial
despite evidence that Glassel’s condition worsened after the
original competency hearing and that he had incorporated his new
counsel into his conspiracy delusions.6 Neither fact is
inconsistent with the trial court’s original conclusion that
Glassel, although mentally ill, was nonetheless competent to
stand trial.
¶31 Because the trial judge had the opportunity to observe
Glassel during court proceedings and had the ability to evaluate
the conflicting expert testimony, we cannot conclude on this
record that the superior court abused its discretion in finding
Glassel competent to stand trial. See Brewer, 170 Ariz. at 495,
826 P.2d at 792.
IV
¶32 Glassel next argues that the trial court erred by
6
The “new evidence” of Glassel’s alleged incompetence
stemmed solely from visits an investigator from the Office of
the Legal Defender had with Glassel. Counsel contends that the
investigator had twenty in-person visits and numerous telephone
conversations with Glassel – amounting to more than fifty hours
of contact with him – and that that contact suggests that
Glassel had incorporated his second trial counsel into his
paranoia. That evidence, however, was insufficient to have
compelled the trial court to order a new competency hearing. If
there indeed was new evidence of Glassel’s incompetency stemming
from those meetings, then counsel should have included that
evidence in his motion for a new competency hearing.
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denying Glassel sufficient opportunity to voir dire the
potential jurors about their understanding of the phrase
“sufficiently substantial to call for leniency.” See A.R.S. §
13-703.01(G) (“At the penalty phase, the defendant and the state
may present any evidence that is relevant to the determination
of whether there is mitigation that is sufficiently substantial
to call for leniency.”). The trial court concluded that it was
“up to each juror to determine what is sufficiently substantial”
to call for leniency.
A
¶33 Glassel contends that under Morgan v. Illinois, 504
U.S. 719, 728 (1992), a defendant must be permitted to use voir
dire to reveal potential jurors who will never vote for
leniency. According to Glassel, his questions regarding the
“sufficiently substantial to call for leniency” language were
designed to determine which prospective jurors could not be
lenient.
¶34 Glassel further asserts that Rule 18.5 of the Arizona
Rules of Criminal Procedure and State v. Anderson, 197 Ariz.
314, 320-21, ¶ 14, 4 P.3d 369, 375-76 (2000), required the trial
court to allow Glassel to ask his questions. Rule 18.5(d)
provides:
The court shall conduct a thorough oral examination of
prospective jurors. Upon the request of any party,
the court shall permit that party a reasonable time to
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conduct a further oral examination of the prospective
jurors. The court may impose reasonable limitations
with respect to questions allowed during a party’s
examination of the prospective jurors, giving due
regard to the purpose of such examination. In
addition, the court may terminate or limit voir dire
on grounds of abuse. Nothing in this Rule shall
preclude the use of written questionnaires to be
completed by the prospective jurors, in addition to
oral examination.
Ariz. R. Crim. P. 18.5(d).
¶35 In Anderson, three potential jurors indicated on their
written questionnaires that they were opposed to the death
penalty on moral or religious grounds and that they could not
set aside those beliefs. Anderson, 197 Ariz. at 318, ¶ 5, 4
P.3d at 373. The trial court then excluded them from the jury
pool for cause. Id. We reversed, holding that Rule 18.5
requires that the defense be given the opportunity to question
the potential jurors to determine whether they could set aside
their personal beliefs and render a fair and impartial verdict.
Id. at 320-21, 324, ¶¶ 14, 24, 4 P.3d at 375-76, 379. We
explained, however, that the right to voir dire a jury is not
absolute: “The wording of the amended rule requiring a
reasonable examination on request of either party is not
ambiguous. A reasonable amount of time necessarily includes
some amount of time to question on a key issue, subject, as the
rule says, to limit or termination to prevent abuse.” Id. at
320-21, ¶ 14, 4 P.3d at 375-76.
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B
¶36 We review a trial court’s rulings on voir dire of
prospective jurors for abuse of discretion. State v. Trostle,
191 Ariz. 4, 12, 951 P.2d 869, 877 (1997). We also review
motions to strike the panel for abuse of discretion. State v.
Carlson, 202 Ariz. 570, 579, ¶ 29, 48 P.3d 1180, 1189 (2002).
1
¶37 Glassel contends that Morgan gives defendants the
right to question a prospective juror to assess the likelihood
that the prospective juror will assign substantial weight to the
mitigation evidence the defendant plans to offer. Morgan’s
holding, however, is considerably narrower: “[D]efendants have
a right to know whether a potential juror will automatically
impose the death penalty once guilt is found, regardless of the
law,” and “[t]hus, defendants are entitled to address that issue
during voir dire.” State v. Jones, 197 Ariz. 290, 303, ¶ 27, 4
P.3d 345, 358 (2000) (construing Morgan). However, “[t]he
Constitution . . . does not dictate a catechism for voir dire,”
Morgan, 504 U.S. at 729, and trial courts have “great latitude
in deciding what questions should be asked on voir dire.”
Mu’Min v. Virginia, 500 U.S. 415, 424 (1991).
¶38 The trial court here fully complied with the Morgan
requirements. The court required each potential juror to fill
out a jury questionnaire, which contained six questions about
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predispositions on capital punishment. Two questions
specifically addressed the Morgan issue. Moreover, the trial
court conducted individual voir dire of every prospective juror
whose responses to the questionnaire suggested an inability to
deliberate impartially or a predisposition to impose the death
penalty regardless of the mitigation evidence. Those potential
jurors were either rehabilitated or dismissed. Glassel has not
identified a single juror who deliberated notwithstanding an
unwillingness to consider mitigation evidence. Every juror
selected answered “no” to the direct Morgan question on the
questionnaire: “Conversely, will you, for whatever reason,
automatically vote for the death penalty without considering the
evidence and the instructions of law that will be presented to
you?”
¶39 Nevertheless, Glassel argues that because some
panelists were “over-the-top” in their answers, a series of
questions regarding the definition of “sufficiently substantial
to call for leniency” was necessary under Morgan. But Glassel
does not specify how the panelists were “over-the-top.” As
discussed above, questionable prospective jurors were either
rehabilitated or dismissed. In addition, eleven of the twelve
jurors actually impaneled indicated on their questionnaires that
they were not opposed to the death penalty but that it should be
used only in very special circumstances. The sole exception was
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juror number 30, who answered affirmatively to the following
question: “I feel the death penalty should be imposed in all
cases where the State has proven beyond a reasonable doubt that
a person killed another with premeditation.” That juror,
however, was rehabilitated after extensive individual voir dire
of him, which convinced the trial court that juror 30 could be
impartial. After that voir dire of juror 30, Glassel did not
ask the court to strike the juror.
2
¶40 Glassel’s proposed questions concerning the
prospective jurors’ understanding of the phrase “sufficiently
substantial to call for leniency” did not further the Morgan
inquiry because the questions did not address the issue of
whether a juror would automatically impose the death sentence
regardless of the jury instructions or mitigation evidence.
Instead, Glassel’s proposed inquiry was to elicit each
panelist’s understanding of the phrase “sufficiently substantial
to call for leniency.” But, as we have noted, the phrase is
“inherently subjective” and not the equivalent of a
“mathematical formula.” State v. Hoskins, 199 Ariz. 127, 154, ¶
123, 14 P.3d 997, 1024 (2000). Because the jury is asked, as is
this Court in the context of its independent review of a death
sentence, to exercise its subjective judgment as to the weight
of the actual evidence of aggravation and mitigation, see State
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v. Barrerras, 181 Ariz. 516, 521, 892 P.2d 852, 857 (1995), we
cannot conclude that the trial court abused its discretion in
refusing to allow the requested questions.
¶41 Moreover, the trial court did permit Glassel to
question some potential jurors about their understanding of the
phrase. Of the nine jurors Glassel wanted to question further,
the trial court prevented Glassel from questioning only two:
jurors number 4 and 60. Thus, except with respect to jurors 4
and 60, Glassel’s real argument is not that he was precluded
from asking about the definition of the phrase “sufficiently
substantial to call for leniency,” but that he was prohibited
from asking enough follow-up questions regarding the jurors’
understanding of the phrase. But he does not specify what
particular questions the trial court prevented him from asking
or how he was prejudiced. Additionally, because neither juror 4
nor juror 60 took part in deliberations, any error with respect
to them is harmless. See State v. Hickman, 205 Ariz. 192, 198-
99, 201, ¶¶ 29, 41, 68 P.3d 418, 424-25, 427 (2003) (holding
that a court’s error in failing to strike potential jurors for
cause was subject to harmless error review because even though
the defendant had to exercise peremptory challenges on those
potential jurors, he did not use all of his peremptory
challenges).
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V
¶42 Glassel also contends that the trial court abused its
discretion by refusing to allow him to ask potential jurors
open-ended questions about what sort of mitigating evidence
would be important to them in deciding whether to impose the
death penalty. Glassel asserts that the trial court instead
permitted only questions about specific mitigating facts.
¶43 Glassel argues, therefore, that open-ended voir dire
is necessary to determine which prospective jurors, in violation
of Morgan, would automatically impose the death sentence despite
the “jurors’ bland assurances that they could be fair and
impartial.”
¶44 Glassel cites no authority to support his argument
that a trial court abuses its discretion by refusing to allow
defendants to ask potential jurors what types of evidence they
will consider to be mitigating. The trial court, moreover, did
permit Glassel to ask open-ended questions on several occasions.7
7
Defense counsel asked juror 4, “I guess what I’m wondering,
what sort of mitigating circumstances would be important to
you?” He also asked juror 9, “What sorts of things do you think
would be mitigating in a death penalty case?” He inquired of
juror 10 what mitigating circumstances meant to him. He asked
juror 3, “When you say you could fairly consider mitigation,
what does that mean to you?” He questioned juror 5 as follows:
“I mean other than just the way you’re instructed, what do
mitigating circumstances mean to you?” He asked another juror
“What would be factors that would be relevant to you or
important to you in determining mitigation, in other words, less
moral culpability?” He asked juror 39, “What does mitigating
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Accordingly, Glassel has failed to show an abuse of discretion
by the trial court.
VI
¶45 Glassel next argues that the trial court violated his
right to a fairly selected jury, his right to be free from cruel
and unusual punishment, and his rights to fundamental fairness
and due process of law under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution when it
struck from the panel prospective jurors who had merely general
objections to the death penalty and when it refused to strike
certain prospective jurors for cause.
¶46 We review a trial court’s decision whether to strike
jurors for cause for abuse of discretion. Jones, 197 Ariz. at
302, ¶ 24, 4 P.3d at 357 (holding that “[t]he trial judge has
the power to decide whether a venire person’s views would
actually impair his ability to apply the law. For this reason,
‘deference must be paid to the trial judge who sees and hears
the juror’”) (quoting Wainwright v. Witt, 469 U.S. 412, 426
(1985)); State v. Medina, 193 Ariz. 504, 511, ¶ 18, 975 P.2d 94,
101 (1999) (“A trial court’s decision not to excuse a juror for
cause will be set aside only for a clear abuse of discretion.”).
circumstances mean to you?” He asked juror 49, “[W]hat does the
idea of mitigation mean to you?”
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A
¶47 The Supreme Court has held that “a sentence of death
cannot be carried out if the jury that imposed or recommended it
was chosen by excluding veniremen for cause simply because they
voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction.”
Witherspoon v. Illinois, 391 U.S. 510, 522 (1968). We recently
discussed Witherspoon and a trial judge’s role in voir dire:
The Supreme Court has held that potential jurors may
not be removed for cause “simply because they voiced
general objections to the death penalty.” Witherspoon
v. Illinois, 391 U.S. 510, 522-23, 88 S. Ct. 1770, 20
L.Ed.2d 776 (1968). However, the trial judge is
permitted to question jurors regarding their opinions
on the death penalty, see, e.g., State v. Anderson,
197 Ariz. 314, 318-19, ¶¶ 7-10, 4 P.3d 369, 373-74
(2000), and, after attempting rehabilitation, may
remove a potential juror from the jury pool if the
juror’s personal views may “prevent or substantially
impair the performance of [the juror’s] duties.”
Wainright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844,
83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448
U.S. 38, 45, 100 S. Ct. 2521, 65 L.Ed.2d 581 (1980)).
Deference is to be accorded to the trial judge and a
juror’s bias need not be proved with unmistakable
clarity. Id. at 424-25, 105 S. Ct. 844.
State v. Moody, 208 Ariz. 424, 450, ¶ 88, 94 P.3d 1119, 1145
(2004).
¶48 Glassel identifies four prospective jurors who he
claims should not have been removed under Witherspoon: jurors
number 16, 32, 46, and 65.
¶49 On his questionnaire, juror 16 wrote that capital
- 23 -
punishment was “barbaric and unsuitable for an advanced nation.”
During voir dire, he confirmed that those were his beliefs and
stated that he was against the death penalty “absolutely.”
Despite the juror’s claim that he could follow the law, the
superior court excused him, noting that he equivocated about
whether he would take his personal biases into the jury room.
¶50 Trial judges are permitted to determine a potential
juror’s credibility when deciding whether to strike a juror for
cause. The Witherspoon determination “is based upon
determinations of demeanor and credibility that are peculiarly
within a trial judge’s province,” and the trial judge’s
“predominant function in determining juror bias involves
credibility findings whose basis cannot be easily discerned from
an appellate record.” Wainwright, 469 U.S. at 428-29. The
standard, moreover, “is whether the juror’s views would ‘prevent
or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.’” Id. at 424
(emphasis added) (citations omitted). Thus, even assuming that
juror 16 was sincere about being able to apply the law, the
judge could have reasonably determined that the juror’s views
would substantially impair his ability to deliberate
impartially. Consequently, we cannot conclude that the trial
court abused its discretion when it struck juror 16 for cause.
¶51 Glassel argues that the court abused its discretion
- 24 -
when it struck juror 32 because he gave assurances that he would
be fair notwithstanding his anti-death penalty beliefs. Juror
32’s responses on the jury questionnaire and during voir dire,
however, demonstrate that he could not vote to impose a death
sentence. On the questionnaire, he stated that his views on the
death penalty were so strong that he was reluctant to sit on the
jury. Specifically, he wrote, “[T]his would not sit well with
me.” During voir dire, the following exchange occurred between
the State and juror 32:
[PROSECUTOR]: In fairness to both sides, do you feel
that [your views on the death penalty] would interfere
substantially with your ability to be a juror?
[JUROR 32]: Yes.
[PROSECUTOR]: So that we’re square on that.
[JUROR 32]: Yes.
[PROSECUTOR]: It would substantially interfere with
your ability to be a juror in this case?
[JUROR 32]: Yes.
After some arguably rehabilitative answers in response to
questions by defense counsel, the following exchange occurred:
[PROSECUTOR]: In the phase of: I vote for the death
penalty or I don’t vote for the death penalty, would
your vote be: I don’t vote for the death penalty?
[JUROR 32]: That’s correct.
[PROSECUTOR]: Anytime you were given a case to vote
on the death penalty, your vote would be against the
death penalty?
- 25 -
[JUROR 32]: Correct.
THE COURT: Not withstanding [sic] the fact that it
may be difficult, could you do it [impose a death
sentence]?
[JUROR 32]: No.
THE COURT: [Defense Counsel]?
[DEFENSE COUNSEL]: You’re telling us that it doesn’t
matter what the law is? It doesn’t matter what the
facts are, you’re going to vote for life no matter
what the evidence or the law is in the end?
[JUROR 32]: Yes, I just don’t want to be a part of
it.
In light of juror 32’s statements, we cannot conclude that the
court abused its discretion in removing him for cause.
¶52 Glassel argues that juror 46 was wrongly removed
because she merely had general objections to the death penalty.
On her questionnaire, however, she wrote that she did not
believe that anyone should receive the death penalty “regardless
of the crime committed.” She also wrote that “we do not have
the right to take another life” and that she held that belief
“morally, personally, and religiously.” She did answer “no” to
the question that asked if her beliefs were “so strongly held”
that she would be reluctant to sit on the jury, but her
responses during voir dire raised doubts about her impartiality:
[PROSECUTOR]: Well, what you’re telling us really –
to get right to the bottom of it – is that if there
are any mitigating circumstances presented in this
case, you are always going to vote in favor of a life
sentence rather than death?
- 26 -
[JUROR 46]: I probably would, yes.
[PROSECUTOR]: And you cannot envision or you don’t
even believe there would be a circumstance where there
would be no mitigating circumstances?
[JUROR 46]: I think when it comes to heinous crimes
or murders, there is {sic} always mitigating
circumstances.
[PROSECUTOR]: If the defendant presented absolutely
no mitigation and it’s the burden of the defendant to
prove mitigation to the jury, if the defendant were to
present no mitigation, the law says that the jury
shall impose a sentence of death.
[JUROR 46]: Uh-huh.
[PROSECUTOR]: That’s mandatory.
[JUROR 46]: I understand that.
[PROSECUTOR]: Would you be able to do that?
[JUROR 46]: If there was no mitigating circumstances,
no [sic], but I believe there always are mitigating
circumstances.
These exchanges, in conjunction with her earlier statements that
she would find mitigating circumstances 99 or 100 percent of the
time and that she saw herself as a representative of the “cross-
section of society” that did not believe in the death penalty,
support the trial court’s decision to dismiss her.
¶53 Glassel claims that the court abused its discretion
when it struck juror 65 for cause because she stated that
although her anti-death penalty position would factor into the
decision whether to impose the death penalty, “I don’t think
- 27 -
it’s so large I couldn’t follow the law.” On the jury
questionnaire, however, juror 65 repeatedly indicated an
unwillingness to impose the death penalty. Her response to one
question stated, “I am not opposed to the death penalty, but I
am not sure I could personally make the decision to impose it.”
In answer to another question, she wrote that it would “be
difficult” for her to make the decision to impose the death
penalty. In response to yet another question, she declared, “I
don’t know if I could vote to put someone to death, no matter
what they did.” In answer to another question, which asked
whether she would automatically vote against the death penalty
without considering the evidence and instructions, she wrote,
“I’m not sure.” Finally, she responded, “I would be fair and
impartial. I just have difficulty with making the decision to
put someone to death.”
¶54 During voir dire, juror 65 continued to express her
concerns over imposing the death penalty. The following are
some of her exchanges with the prosecutor during voir dire:
[PROSECUTOR]: Could you see yourself voting for the
death penalty in a case where aggravation is provided
and there are no mitigating factors sufficiently
substantial to call for leniency?
[JUROR 65]: No.
***
[PROSECUTOR]: [Could you make the decision to put
someone to death if the law required it?]
- 28 -
[JUROR 65]: Honestly, I say I couldn’t. If you want
an answer, I couldn’t. I do think that I could follow
the law. I work with the law agents different [sic],
and I think I’m logical; but I really have trouble
with that.
[PROSECUTOR]: Your final answer, at least to me for
now is, “I couldn’t do that.”
[JUROR 65]: Sure.
¶55 In light of juror 65’s responses during voir dire and
her answers to the jury questionnaire, it was not an abuse of
discretion for the trial court to remove her for cause.
B
¶56 As discussed above, Morgan, 504 U.S. at 728, requires
that defendants have the opportunity to use voir dire to reveal
jurors who will never vote for leniency. Under Morgan, because
“defendants have a right to know whether a potential juror will
automatically impose the death penalty once guilt is found,
regardless of the law,” capital defendants are entitled to
address that issue during voir dire. Jones, 197 Ariz. at 303 ¶
27, 4 P.3d at 358.
¶57 Glassel identifies six prospective jurors who he
claims should have been removed under Morgan: Jurors number 5,
10, 14, 18, 36, and 39. None of those prospective jurors,
however, was selected. Consequently, any error in refusing to
strike them was harmless. See Hickman, 205 Ariz. at 198-99, 201
¶¶ 29, 41, 68 P.3d at 424-25, 427.
- 29 -
VII
¶58 The trial court gave the reasonable doubt instruction
mandated by this Court in State v. Portillo, 182 Ariz. 592, 898
P.2d 970 (1995).8 Glassel contends that Portillo should be
overruled. Glassel recognizes that this Court has previously
rejected challenges to the Portillo instruction, see State v.
Lamar, 205 Ariz. 431, 440-41, ¶¶ 48-49, 72 P.3d 831, 840-41
(2003) (citing cases), but asks us to reconsider the issue. We
declined that invitation in Lamar, see id., and do so again
today.
8
The court instructed the jury as follows:
As to reasonable doubt, the law does not require
a defendant to prove innocence. Every defendant is
presumed by law to be innocent. The State has the
burden of proving the defendant guilty beyond a
reasonable doubt. This means the State must prove
each element of the charges beyond a reasonable doubt.
In civil cases it is only necessary to prove that
a fact is more likely true than not or that its truth
is highly probable. In criminal cases, such as this,
the State’s proof must be much more powerful than
that; it must be beyond a reasonable doubt. Proof
beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant’s guilt. There are
very few things in this world we know with absolute
certainty, and in criminal cases it does not require
proof that overcomes every doubt. If, based upon your
consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime
charged, you must find him guilty. If, on the other
hand, you think that there’s a real possibility that
the defendant is not guilty, you must give him the
benefit of the doubt and find him not guilty.
- 30 -
VIII
¶59 Glassel next argues that he was denied his Sixth
Amendment right to counsel at the penalty phase of the trial.
We review this question de novo. See Moody, 208 Ariz. at 445, ¶
62, 94 P.3d at 1140; Frazer v. United States, 18 F.3d 778, 781
(9th Cir. 1994).
A
¶60 In October 2002, Glassel’s second defense counsel
repeatedly told the court that he was not prepared to call any
mitigation witnesses. On November 19, defense counsel again
told the court that he was not ready to proceed. He also
attempted to withdraw from the case.
¶61 In the penalty phase of the trial, defense counsel
presented no witnesses, instead relying on evidence developed
during the trial about Glassel’s age and lack of any prior
criminal history. Although defense counsel did not present
evidence, he objected to the State’s opening statement in which
it said that Glassel was in good health and did not suffer from
mental illness. Defense counsel argued that the State was
speculating about Glassel’s physical and mental health. He then
suggested that something “happened with” Glassel, something that
caused him “to go over the edge.” He also mentioned that
Glassel had prepared what counsel characterized as a suicide
note before committing the crimes.
- 31 -
B
¶62 “[A] trial is unfair if the accused is denied counsel
at a critical stage of his trial.” United States v. Cronic, 466
U.S. 648, 659 (1984). “[I]f counsel entirely fails to subject
the prosecution’s case to meaningful adversarial testing, then
there has been a denial of Sixth Amendment rights that makes the
adversary process itself presumptively unreliable.” Id.
Indeed, Cronic explained that “[t]he Court has uniformly found
constitutional error without any showing of prejudice when
counsel was either totally absent, or prevented from assisting
the accused during a critical stage of the proceeding.” Id.
n.25.
¶63 In Bell v. Cone, however, the Court clarified Cronic
by stating that an “attorney’s failure must be complete.” 535
U.S. 685, 697 (2002) (emphasis added). It then explained why
the defendant’s argument that his counsel entirely neglected to
subject the prosecutor’s case to meaningful adversarial testing
failed: “Here, respondent’s argument is not that his counsel
failed to oppose the prosecution throughout the sentencing
proceeding as a whole, but that his counsel failed to do so at
specific points.” Id. Glassel argues that his counsel’s
conduct, unlike the conduct of the attorney in Cone, satisfies
the Cronic standard. We disagree.
¶64 Glassel has not demonstrated a Sixth Amendment
- 32 -
violation. Despite defense counsel’s decision not to present
any mental health experts at the penalty phase of the sentencing
proceeding, the record does not establish that his “counsel
entirely fail[ed] to subject the prosecution’s case to
meaningful adversarial testing.” Cronic, 466 U.S. at 659
(emphasis added). In addition to giving an opening statement
and closing argument at the penalty phase, defense counsel
argued that the jury should accept three mitigating
circumstances: age, lack of criminal history, and no record of
prior violent crimes. Accordingly, we conclude that on this
record, we cannot find that Glassel was denied the right to
counsel.9
IX
¶65 Glassel argues that Arizona’s capital sentencing
scheme, which requires that any mitigation evidence be
“sufficiently substantial to call for leniency,” see A.R.S. §
13-703.01(G), is vague, shifts the burden of proof, and creates
an unconstitutional presumption of death. We review the
validity of a statute de novo and construe it, whenever
possible, to uphold its constitutionality. State v. Davolt, 207
9
This does not mean, however, that Glassel is without a
remedy. He can raise a claim of ineffective assistance of
counsel in a Rule 32 petition for post-conviction relief. See
State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002)
(holding that any ineffective assistance of counsel claims must
be brought in Rule 32 post-conviction proceedings).
- 33 -
Ariz. 191, 214, ¶ 99, 84 P.3d 456, 479 (2004).
A
¶66 Glassel contends that A.R.S. §§ 13-703(E) and 13-
703.01(G) are vague because the “sufficiently substantial to
call for leniency” standard is not a reliable standard for
determining whether to impose the death penalty. See Ring III,
204 Ariz. at 544, ¶ 8, 65 P.3d at 925 (recognizing that
standardless death sentencing procedures violate the Eight
Amendment’s prohibition on cruel and unusual punishment) (citing
Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam)).
¶67 Glassel argues that the lack of an “identifiable”
standard was not as problematic when judges weighed the
mitigating factors because judges were more experienced in
sentencing matters. See Proffitt v. Florida, 428 U.S. 242, 252
(1976) (“[J]udicial sentencing should lead, if anything, to
even greater consistency in the imposition at the trial court
level of capital punishment, since a trial judge is more
experienced in sentencing than a jury, and therefore is better
able to impose sentences similar to those imposed in analogous
cases.”). According to Glassel, jurors, with no such prior
experience to guide them, “will inevitably err.”
¶68 We have long held, however, that the phrase
“sufficiently substantial to call for leniency” is not
unconstitutionally vague. See State v. Ortiz, 131 Ariz. 195,
- 34 -
206, 639 P.2d 1020, 1031 (1980), overruled, in part, on other
grounds by State v. Gretzler, 135 Ariz. 42, 57 n.2, 659 P.2d 1,
16 n.2 (1983). The fact that juries, instead of judges, now
determine whether any mitigating evidence is sufficiently
substantial to call for leniency does nothing to change that
analysis. Although jurors may not have the experience of judges
in weighing mitigating factors against aggravating
circumstances, because this process is “inherently subjective”
and not subject to any “mathematical formula,” Hoskins, 199
Ariz. at 154, ¶ 123, 14 P.3d at 1024, our previous decisions in
the context of judicial sentencing compel the same conclusion
under the new sentencing statutes.
B
¶69 In re Winship, 397 U.S. 358, 361-63 (1970), requires
that every element of an offense be proven beyond a reasonable
doubt. Glassel points out that Ring II, 536 U.S. at 589,
requires that the state prove to the jury beyond a reasonable
doubt every fact necessary to impose the death penalty. Glassel
concludes, therefore, that the state has the burden of proving
“beyond a reasonable doubt that leniency was not justified.”
¶70 The Supreme Court, however, has rejected a similar
argument. See Walton v. Arizona, 497 U.S. 639, 650 (1990) (“So
long as a State’s method of allocating the burdens of proof does
not lessen the State’s burden to prove every element of the
- 35 -
offense charged, or in this case to prove the existence of
aggravating circumstances, a defendant’s constitutional rights
are not violated by placing on him the burden of proving
mitigating circumstances sufficiently substantial to call for
leniency.”), overruled on other grounds by Ring II, 536 U.S.
586-87; see also State v. Atwood, 171 Ariz. 576, 663, 832 P.2d
593, 680 (1992) (“Placing the burden on the defendant to prove
mitigating circumstances is not a violation of due process.”),
overruled on other grounds by State v. Nordstrom, 200 Ariz. 229,
241, ¶ 25, 25 P.3d 717, 729 (2001). Ring II does not hold to
the contrary; it merely addressed the implications of permitting
a trial court, rather than a jury, to determine the existence of
aggravating circumstances and overruled Walton only to the
extent that Walton found that practice permissible. See Ring
II, 536 U.S. at 597 n.4. Accordingly, Glassel’s contention that
the state has the burden of proving that the mitigating factors
were not sufficiently substantial to call for a life sentence is
without merit.
C
¶71 Glassel also asserts that A.R.S. §§ 13-703(E) and 13-
703.01(G) are unconstitutional because they create a
“presumption of death which the jury is then called upon to
rebut.”
¶72 A conviction for first degree murder, however, does
- 36 -
not create a presumption of death. In addition to the elements
of the crime, the state must prove at least one aggravating
factor beyond a reasonable doubt in order to obtain a death
sentence. Only after the state establishes at least one
aggravating factor beyond a reasonable doubt does the defendant
have the burden of proving mitigating circumstances. Such a
scheme does not create an unconstitutional “presumption of
death.” See State v. Anderson, 210 Ariz. at 347, ¶¶ 76-77, 111
P.3d at 389 (citing cases).
X
¶73 Glassel next claims that the trial court improperly
reduced the State’s burden when it refused to instruct the jury
to return a life sentence if it had a reasonable doubt whether
to impose the death penalty.10 He argues that the trial court’s
failure to so instruct the jury violated his rights “to
fundamental fairness and due process of law under the Fifth,
Sixth, Eighth and Fourteenth Amendments [to the United States
Constitution].”
¶74 We review de novo whether instructions to the jury
properly state the law. State v. Orendain, 188 Ariz. 54, 56,
932 P.2d 1325, 1327 (1997). If an instruction improperly
10
Glassel asked that the following instruction be read to the
jury: “If a juror has a reasonable doubt about whether the
death penalty or the death sentence should be imposed, that
juror should not vote for the death penalty.”
- 37 -
reduces the state’s burden of proof, the error is structural and
cannot be harmless. See Sullivan v. Louisiana, 508 U.S. 275,
280-82 (1993); Portillo, 182 Ariz. at 594, 898 P.2d at 972.
¶75 We reject this argument for the same reasons we
rejected his argument that the state has the burden of “proving
beyond a reasonable doubt that leniency was not justified.” See
¶¶ 69-70 (citing Walton, 497 U.S. at 650; Atwood, 171 Ariz. at
663; and Ring II, 536 U.S. at 597 n.4). Therefore, the trial
court did not err by refusing to instruct the jury to return a
life sentence if it had a reasonable doubt whether to impose the
death penalty.
XI
¶76 Glassel asserts that the prosecutors committed
misconduct by stating in voir dire that the State could put on
mitigating evidence, but then failed to provide jurors with
evidence of Glassel’s mental illness. “To prevail on a claim of
prosecutorial misconduct, a defendant must demonstrate that the
prosecutor’s misconduct so infected the trial with unfairness as
to make the resulting conviction a denial of due process.”
State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191
(1998) (internal quotation omitted). Glassel did not make this
argument in the trial court and therefore we review only for
fundamental error. State v. Montaño, 204 Ariz. 413, 427 n.6, ¶
70, 65 P.3d 61, 75 n.6 (2003).
- 38 -
¶77 We discern no fundamental error here. Glassel’s
counsel had access to the very mitigation evidence at issue, yet
failed to present it after urging by the State. Under these
unique circumstances, we cannot find that the State engaged in
misconduct by failing in effect to counter what it may have
considered to be defense counsel’s strategy by introducing
evidence that he declined to present.
XII
¶78 Glassel next contends that the victim impact
statements “exceeded permissible bounds of relevance, were
unduly prejudicial, and violated appellant’s due process rights,
and his right to a fair sentencing under the Fifth, Sixth,
Eighth, and Fourteenth Amendments . . . as well as Article 2, §§
4, 15, and 24 of the Arizona Constitution.” We review issues
regarding the interpretation of federal and Arizona
constitutional provisions de novo. State v. McCann, 200 Ariz.
27, 28, ¶ 5, 21 P.3d 845, 846 (2001).
A
¶79 Three people11 gave victim impact statements on behalf
of Nila Lynn: Duane Lynn and Nila’s daughters, Kathy Morgan and
Patty Wyatt, all of whom cried during their presentations.
11
A cousin of Esther LaPlante’s was designated Esther’s legal
representative and delivered a victim impact statement on the
family’s behalf. Glassel does not raise any challenge to this
statement.
- 39 -
Duane said that he had the privilege and honor to be married to
Nila for nearly fifty years. He described how his children had
been secretly planning an anniversary party but ended up using
the money that they had saved for Nila’s casket. He then told
the jury how much he loved his wife and how much he missed her.
He also told the jury about the day of the murder, when Nila
begged him to help her as she lay dying. Duane said that he had
always been able to help her but was powerless to do anything
that day. He concluded by showing twenty-five pictures of Nila
and her family to the jury.
¶80 Kathy Morgan testified that her mother was a religious
woman and a good person. Morgan also testified that the night
before the murder, she watched a television program about the
anniversary of the murders at Columbine High School. She said
that she remembered feeling sorry for the families but never
imagined that just twenty-four hours later she would experience
the same pain.
¶81 Patty Wyatt testified that her mother helped her get
through a difficult period of her life when her roommate, Sydney
Brown, was murdered. Wyatt described how a man walked into a
church one night and “put a bullet into [Brown’s head] and
killed her along with six others.” She said that nothing could
have prepared her for sitting through another funeral just seven
months later. She also said that while other first-graders were
- 40 -
drawing stick figures with flowers, her first-grader “draws Nana
with a bad man and a gun.”
B
¶82 “A State may legitimately conclude that evidence about
the victim and about the impact of the murder on the victim's
family is relevant . . . as to whether or not the death penalty
should be imposed.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). Arizona permits victim impact evidence to rebut a
defendant’s mitigation evidence. State v. Mann, 188 Ariz. 220,
228, 934 P.2d 784, 792 (1997) (“Arizona has made [the choice to
allow victim impact statements] and thus, under the Arizona
Constitution, and to the extent allowed by Payne and our cases,
victim impact evidence should be considered by the court to
rebut the defendant's mitigation evidence.”).
¶83 The Supreme Court has cautioned, however, against
unduly prejudicial victim impact statements: “In the event that
evidence is introduced that is so unduly prejudicial that it
renders the trial fundamentally unfair, the Due Process Clause
of the Fourteenth Amendment provides a mechanism for relief.”
Payne, 501 U.S. at 825. In Payne, the defendant had murdered
twenty-eight-year-old Charisse Christopher and her two-year-old
daughter, Lacie. Id. at 811. Christopher’s three-year-old son,
Nicholas, survived the brutal attack after seven hours of
surgery and a massive blood transfusion. Id. at 812. At
- 41 -
sentencing, the trial court permitted Nicholas’ grandmother to
explain how Nicholas had told her that he missed his mother and
baby sister. Id. at 826. The Court determined that the
grandmother’s statements were not unduly prejudicial. Id. at
826-30.
¶84 Glassel argues that the victim impact statements here
were much more prejudicial than was the grandmother’s statement
in Payne. According to Glassel, the statements by Lynn’s
daughters were unduly prejudicial because they “impermissibly
injected into the proceedings the emotional baggage connected to
two mass murders – one well-known to the public, the other
having an exceedingly personal connection to the woman who told
of it.”
¶85 Glassel adds that the prejudicial effect of the Lynn
family’s testimony “was exacerbated by the fact that all three
of the individuals listed above were weeping during their
presentations.” Glassel further claims that the prejudicial
effect of the Lynn family’s testimony “is illustrated by the
fact that at least half of the jurors were weeping during the
victim impact presentation.”
¶86 Although Morgan’s and Wyatt’s statements were powerful
and emotional, we cannot conclude that they unconstitutionally
prejudiced the jury. The fact that the family members and
jurors cried during the presentations does not warrant reversal.
- 42 -
Senseless murders usually generate strong emotional responses.
It is not unreasonable, therefore, to expect that murder
victims’ family members will often come to tears when making
their impact statements. Nor is it unreasonable to expect that
some jurors will also have emotional reactions when hearing the
victims’ families’ accounts of the loss they have suffered.
XIII
¶87 Glassel argues that the trial court erred by not
permitting Duane Lynn to recommend a life sentence. Our review
of whether a victim’s sentencing recommendation in a capital
case is relevant turns on the question of whether the
recommendation “creates a constitutionally unacceptable risk
that jurors may impose a death sentence based upon impermissible
arbitrary and emotional factors.” Lynn v. Reinstein, 205 Ariz.
186, 190 n.5, ¶ 13, 68 P.3d 412, 416 n.5 (2003) (citations
omitted); see also State v. Sansing, 206 Ariz. 232, 241, ¶ 37,
77 P.3d 30, 39 (2003) (citations omitted).
¶88 Duane Lynn opposed the death penalty in this case not
because he opposed it in principle, but because he did not
believe that it was warranted under the circumstances of this
case. We previously decided, however, that Lynn could not give
a recommendation for a life sentence, holding that the Eighth
Amendment prohibits a victim from making a sentencing
recommendation to the jury in a capital case. See Lynn, 205
- 43 -
Ariz. at 188, ¶ 5, 68 P.3d at 414. We further commented that
“[v]ictims’ recommendations to the jury regarding the
appropriate sentence a capital defendant should receive are not
constitutionally relevant to the harm caused by the defendant’s
criminal acts or to the defendant’s blameworthiness or
culpability.” Id. at 191 ¶ 17, 68 P.3d at 417 (citations
omitted).
¶89 Nevertheless, Glassel argues that this Court should
revisit the issue from his perspective. Glassel agrees that the
Eighth Amendment bars a victim from recommending a death
sentence when the defendant objects to that recommendation. He
claims, however, that the Eighth Amendment “cannot bar a
recommendation of leniency when the defendant affirmatively
wishes the jury to hear it.” He further asserts that “rights
under the Eighth Amendment are the defendant’s to raise or
waive, not for the trial court to impose against his will.”12
¶90 Glassel contends that permitting victims to give
recommendations of leniency is especially important when those
victims present victim impact statements. According to Glassel,
the natural inference from a victim impact statement is that the
victim supports imposing the death penalty.
12
Glassel contends that the trial court’s error involves both
Nila Lynn and Esther LaPlante. According to Glassel, if the
jury heard that Duane Lynn recommended a life sentence, and then
decided to give him a life sentence for Nila’s murder, it would
be pointless to impose the death penalty for Esther’s murder.
- 44 -
¶91 However, as we have previously held both in Lynn and
Sansing, 206 Ariz. at 241, ¶ 37, 77 P.3d at 39, victims’
opinions about what sentence should be imposed in a capital case
are constitutionally irrelevant. Although here it is a
defendant who argues that a victim’s recommendation of leniency
should be admitted, the same reasoning applies. What makes
victim statements relevant is the evidence of the impact of the
crime. See Lynn, 205 Ariz. at 191, ¶ 17, 68 P.3d at 417. Thus,
a victim’s recommendation of what sentence should be imposed in
a capital case, whether for or against the death penalty, is
simply not relevant. Id. Accordingly, the trial court did not
err in precluding Duane Lynn from recommending that Glassel
should receive a life sentence.
XIV
¶92 Glassel has not urged this Court to overturn his death
sentence after independently reviewing the jury’s findings of
aggravation and mitigation. However, we must independently
review those jury findings regardless of whether Glassel has
raised the issue on appeal. A.R.S. § 13-703.04(A) (Supp.
2004).13
13
Section 13-703.04 “applies to any sentencing or
resentencing proceeding on any first degree murder case that is
held after the effective date of this act and in which the
offense was committed before the effective date of this act.”
2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7(b).
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¶93 The language of section 13-703.04 is identical to
superseded A.R.S. § 13-703.01 (1994), which required us
independently to reweigh mitigating and aggravating factors when
judges determined whether to impose the death penalty. Under
the superseded statute, we rejected a rigid mathematical
approach to reweighing, holding that “[i]n weighing, we consider
the quality and the strength, not simply the number, of
aggravating and mitigating factors.” State v. Greene, 192 Ariz.
431, 443, ¶ 60, 967 P.2d 106, 118 (1998).
¶94 In Greene, although there was only one aggravator and
several mitigators, we determined that the mitigation was not
sufficient to overcome the aggravation. Id. at 443-44, ¶ 60,
967 P.2d at 118-19. We thus upheld the death sentence. Id. at
¶¶ 60-63. In other cases we have likewise focused on the
quality, not the quantity, of the proven aggravating and
mitigating factors. See, e.g., State v. Rogovich, 188 Ariz. 38,
44-46, 932 P.2d 794, 800-02 (1997) (holding that the quality of
the three aggravators outweighed the quality of the six
mitigators and thus death penalty was appropriate); State v.
Lehr, 201 Ariz. 509, 522-24, ¶¶ 62-66, 38 P.3d 1172, 1185-86
(2002) (holding that the quality of the aggravators outweighed
the quantity of the more numerous mitigators and thus death
penalty was appropriate).
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¶95 Our independent reweighing is not complicated in this
case. The aggravating factor, that two or more murders were
committed during the commission of the offense, A.R.S. § 13-
703(F)(8), was uncontested. The mitigating circumstances
offered by Glassel - his age, lack of criminal history, and lack
of prior violent crimes - were, in light of the aggravating
factor, not “sufficiently substantial to warrant leniency.” See
Roseberry, 210 Ariz. at ___, ¶¶ 78-79, 111 P.3d at 416.
XV
¶96 The jury also convicted Glassel of thirty counts of
attempted first degree murder, all class two felonies. The jury
further found each offense to be a dangerous offense because a
deadly weapon had been used, which enhanced the sentence for
each offense. A.R.S. § 13-604(I). Under section 13-604(I), the
presumptive sentence for a class two dangerous felony is ten and
one-half years. However, “[t]he presumptive term may be
mitigated or aggravated pursuant to the terms of § 13-702
subsections B, C, and D.” Id. The minimum sentence for a class
two dangerous felony is seven years and the maximum sentence is
twenty-one years. Id.
¶97 When Glassel committed his crimes, section 13-702(C)
(Supp. 1999) listed seventeen different factors that a court was
required to consider in deciding an appropriate sentence. Such
factors included the following: “[u]se, threatened use or
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possession of a deadly weapon . . . during the commission of the
crime,” § 13-702(C)(2); “[t]he physical, emotional and financial
harm caused to the victim,” § 13-702(C)(9); “[if] the victim of
the offense is sixty-five or more years of age,” § 13-
702(C)(13); and “[a]ny other factors which the court may deem
appropriate to the ends of justice,” § 13-702(C)(17).14
¶98 The trial court imposed aggravated sentences on each
count: the maximum term of twenty-one years for counts three,
four and five, and an aggravated term of eighteen years for the
remaining counts.15 In explaining his decision to impose
aggravated sentences, the trial judge found the following
aggravators: “multiple victims, the harm of the defendant’s
actions to the victims, the age of the victims, deadly weapon
used, [and] the circumstances surrounding the crime . . . .”16
The judge found that these circumstances far outweighed the
14
This latter provision is now found in A.R.S. § 13-
702(C)(21) (Supp. 2004). See 2004 Sess. Laws, 2d Reg. Sess.,
ch. 174, § 1. But see infra note 18.
15
The trial judge ordered that some counts run consecutively
to others, but concurrently to each other. On appeal, Glassel
does not contest the court’s imposition of consecutive
sentences.
16
The trial court did not specify what factors applied to any
specific counts. See State v. Gillies, 142 Ariz. 564, 573, 691
P.2d 655, 664 (1984) (commenting that “[t]he better practice, in
cases like this of multiple counts, is to set out the
aggravating and mitigating factors for each separate count”).
Nor did the court make specific references to A.R.S. § 13-702(C)
when it sentenced Glassel on the non-capital convictions.
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mitigating factors of Glassel’s age and lack of prior
convictions.
¶99 In a supplemental brief filed after the Supreme Court
issued its opinion in Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531 (2004), Glassel challenges the aggravated sentences
he received for his non-capital offenses.
¶100 Before Blakley, in Apprendi v. New Jersey, the Supreme
Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000).
The Court in Blakley applied the Apprendi rule to the State of
Washington’s sentencing scheme. 542 U.S. at ___, 124 S. Ct. at
2536. It concluded that the sentence Blakely received violated
the rule announced in Apprendi. Blakely, 542 U.S. at ___, 124
S. Ct. at 2538. The Court emphasized that “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Id. at ___, 124 S.
Ct. at 2537. We have held that Blakely applies to Arizona’s
non-capital sentencing scheme. State v. Brown (McMullen), 209
Ariz. 200, 203, ¶ 12, 99 P.3d 15, 18 (2004) (holding that, under
Arizona law, the statutory maximum for Apprendi purposes in a
case in which no aggravating factors have been proved to a jury
- 49 -
beyond a reasonable doubt is the presumptive sentence).
¶101 Glassel contends that except for the finding that
there were multiple victims, the aggravating factors found by
the trial judge were neither implicit in the jury verdicts nor
admitted by Glassel.17 He argues, therefore, that the trial
court sentenced him on the non-capital offenses in violation of
Blakely because there was no jury finding beyond a reasonable
doubt on all of the aggravating circumstances. Glassel did not
raise this objection at trial and our review is therefore only
for fundamental error. See State v. Henderson, ___ Ariz. ___,
17
We note that because Glassel’s use of a deadly weapon was
used to enhance the range of punishment under section 13-604(I),
the trial court erred in relying on Glassel’s use of a deadly
weapon as an aggravating circumstance. See A.R.S. § 13-
702(C)(2). Moreover, the factors of harm of the defendant’s
actions to the victims, the age of the victims, and the
circumstances surrounding the crime, were neither factors found
by the jury beyond a reasonable doubt nor implicit in all of the
jury’s verdicts. For example, although three of the attempted
murder victims had been hit by bullets from the weapons Glassel
used, the others were not. In addition, the record does not
establish that all of the victims of the attempted first degree
murder counts were more than sixty-five years old. A.R.S. § 13-
702(C)(13). Nor did the court specify if any of the victims
were sixty-five years old or more. See Gillies, 142 Ariz. at
573, 691 P.2d at 664. And the court did not explain what it
meant by “the circumstances of the offense.” Cf. A.R.S. § 13-
703(C)(5) (listing as an aggravating circumstance the
“[e]specially heinous, cruel or depraved manner in which the
offense was committed”). Glassel, however, has waived these
issues by not raising them at trial or on appeal. Cf. State v.
Wilson, 200 Ariz. 390, 398, ¶ 24, 26 P.3d 1161, 1169 (App. 2001)
(rejecting argument made at oral argument in part because it was
not presented either in the trial court or in the appellate
briefs) (citing Van Loan v. Van Loan, 116 Ariz. 272, 274, 569
P.2d 214, 216 (1977)).
- 50 -
___ ¶ 19, 115 P.3d 601, ___ (2005).
¶102 Our recent decision in State v. Martinez, ___ Ariz.
___, 115 P.3d 618 (2005), disposes of Glassel’s arguments. In
Martinez, we concluded that “once a jury finds or a defendant
admits a single aggravating factor, the Sixth Amendment permits
the sentencing judge to find and consider additional factors
relevant to the imposition of a sentence up to the maximum
prescribed in that statute.” Id. at ___, ¶ 26, 115 P.3d at ___.
¶103 Section 13-702(C) does not list “multiple victims” as
an aggravating factor. Rather, the “multiple victims”
aggravating factor for non-capital offenses is a court-created
factor that has been held to fall within the “catch-all”
provision of A.R.S. § 13-702(C)(17) (“Any other factors which
the court may deem appropriate to the ends of justice.”).18 See
State v. Tschilar, 200 Ariz. 427, 434-36, ¶¶ 30-34, 27 P.3d 331,
338-40 (App. 2001). The court in Tschilar reasoned that a
defendant who assaults more than one victim at once “arguably
creates a greater risk of physical and emotional injury as to
each as they see the others terrorized or injured and arguably
represents a graver offense to society.” Id. at 435, ¶ 34, 27
P.3d at 339. But cf. State v. Alvarez, 205 Ariz. 110, 114, ¶
18
No issue is raised on appeal as to whether the A.R.S. § 13-
702(C)(21), the “catch all” circumstance, violates due process,
and therefore we do not address it, particularly because the
statute has now been changed, effective August 12, 2005. See
2005 Sess. Laws, ch. 20, § 1.
- 51 -
13, 67 P.3d 706, 710 (App. 2003) (holding that the trial court
erred in imposing aggravated sentences on the basis of “multiple
victims” under the facts of that case because the defendant “did
not have ‘multiple victims’ in the sense in which that term is
normally used, denoting multiple victims of a single act,
episode, or scheme”) (citations omitted).
¶104 Other than arguing that the trial court committed
Apprendi/Blakely error by not requiring the jury to find all
aggravating factors, Glassel does not contest the trial court’s
reliance on the multiple victims’ aggravator. Nevertheless,
failure to submit the multiple victims issue to the jury was not
Blakely error because the jury’s verdicts necessarily found that
there were 30 victims; and Glassel cannot establish that any
reasonable jury would have found that each was not placed in
increased danger. And because Glassel does not challenge the
trial court’s use of any of the other aggravating circumstances,
his claim that the trial court’s imposition of aggravated
sentences violated the holding of Blakely fails.
XVI
¶105 To preserve the issues for future federal habeas
corpus proceedings, Glassel contends that the death penalty is
unconstitutional for thirteen reasons. He acknowledges that
this Court has already rejected these thirteen arguments, but
asks us to reconsider them.
- 52 -
¶106 First, Glassel argues that the death penalty is cruel
and unusual punishment under any circumstance. Both the Supreme
Court and this Court have rejected that argument. Gregg v.
Georgia, 428 U.S. 153, 186-87 (1976); State v. Harrod, 200 Ariz.
309, 320, ¶¶ 58-59, 26 P.3d 492, 503 (2001) (holding that “[t]he
Arizona death penalty is not per se cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments”)
(citations omitted), vacated on other grounds by Harrod v.
State, 536 U.S. 953 (2002).
¶107 Second, he contends that the death penalty is imposed
arbitrarily and irrationally. We rejected the same argument in
State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988)
(citations omitted).
¶108 Third, Glassel asserts that the application of the
death penalty under these facts constitutes cruel and unusual
punishment. But he does not say why the death penalty would
constitute cruel and unusual punishment under these facts. His
failure to make any specific argument precludes any further
consideration of this point. See State v. Carreon, 210 Ariz.
54, 76, ¶ 123, 107 P.3d 900, 922 (2005); State v. Kemp, 185
Ariz. 52, 57, 912 P.2d 1281, 1286 (1996) (holding that counsel,
to avoid preclusion of issue on appeal, must argue issue in body
of brief; list of issues in brief is not adequate).
¶109 Fourth, he argues that because the prosecution’s
- 53 -
discretion to seek the death penalty has no standards, the death
penalty violates the Eighth and Fourteenth Amendments and
Article 2, sections 1, 4, and 15 of the Arizona Constitution.
We rejected the same argument in State v. Sansing, 200 Ariz.
347, 361, ¶ 46, 26 P.3d 1118, 1132 (2001), vacated on other
grounds by Sansing v. Arizona, 536 U.S. 954 (2002).
¶110 Fifth, Glassel contends that Arizona’s death penalty
discriminates against poor, young, and male defendants. We have
previously rejected that argument. Sansing, 200 Ariz. at 361, ¶
46, 26 P.3d at 1132; State v. Poyson, 198 Ariz. 70, 83, ¶ 53, 7
P.3d 79, 92 (2000); State v. Stokley, 182 Ariz. 505, 516, 898
P.2d 454, 465 (1995).
¶111 Sixth, he argues that the absence of proportionality
review of death sentences denies capital defendants due process
of law and equal protection and amounts to cruel and unusual
punishment. We rejected that argument in Harrod, 200 Ariz. at
320, ¶ 65, 26 P.3d at 503.
¶112 Seventh, Glassel claims that Arizona’s capital
sentencing scheme is unconstitutional because it does not
require the state to prove that the death penalty is
appropriate. We rejected the same argument in State v. Ring,
200 Ariz. 267, 284, ¶ 64, 25 P.3d 1139, 1156 (2001) (Ring I),
rev’d on other grounds by Ring II, 536 U.S. 584; see also State
v. Van Adams, 194 Ariz. 408, 423, ¶ 55, 984 P.2d 16, 31 (1999).
- 54 -
¶113 Eighth, he contends that A.R.S. § 13-703.01 is
unconstitutional because it provides no objective standards to
guide the jury in weighing the aggravating and mitigating
circumstances. We rejected that argument, at least when judges
weighed aggravating and mitigating factors, in State v. Pandeli,
200 Ariz. 365, 382, ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on
other grounds by Pandeli v. Arizona, 536 U.S. 953 (2002). Our
analysis remains unchanged now that juries, instead of judges,
weigh aggravating and mitigating factors.
¶114 Ninth, Glassel argues that Arizona’s death penalty
scheme is unconstitutional because it does not require the jury
to find beyond a reasonable doubt that the aggravating
circumstances outweigh the accumulated mitigating circumstances.
We rejected the same argument in Pandeli, 200 Ariz. at 382, ¶
92, 26 P.3d at 1153.
¶115 Tenth, he maintains that the Arizona death penalty
scheme is unconstitutional because the broad scope of Arizona’s
aggravating factors encompasses nearly anyone involved in a
murder. We rejected the same argument in Pandeli, 200 Ariz. at
382, ¶ 90, 26 P.3d at 1153.
¶116 Eleventh, Glassel contends that lethal injection is
cruel and unusual punishment. We rejected that argument in
State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995).
¶117 Twelfth, he argues that Arizona’s death penalty is
- 55 -
unconstitutional because it requires the death penalty whenever
at least one aggravator exists and no mitigating factors exist.
We rejected the same argument in State v. Miles, 186 Ariz. 10,
19, 918 P.2d 1028, 1037 (1996).
¶118 Finally, Glassel claims that Arizona’s death penalty
is unconstitutional because it requires defendants to prove that
their lives should be spared. We rejected that argument in
State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623
(1988).
XVII
¶119 For the above reasons, we affirm Glassel’s convictions
and sentences.
__________________________________
Michael D. Ryan, Justice
CONCURRING:
_________________________________________
Ruth V. McGregor, Chief Justice
_________________________________________
Rebecca White Berch, Vice Chief Justice
_________________________________________
Andrew D. Hurwitz, Justice
_________________________________________
Charles E. Jones, Justice (Retired)
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