SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0199-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1999-095294
SHAWN RYAN GRELL, )
) O P I N I O N
Appellant. )
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Teresa A. Sanders, Judge
SENTENCE REDUCED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation
Amy Pignatella Cain, Tucson
Assistant Attorney General
Attorneys for State of Arizona
LAW OFFICE OF TREASURE VANDREUMEL, P.L.C. Phoenix
By Treasure L. VanDreumel
Attorney for Shawn Ryan Grell
________________________________________________________________
B E R C H, Chief Justice
¶1 Shawn Ryan Grell murdered his two-year-old daughter,
Kristen Grell, by pouring gasoline on her and lighting her on
fire.1 Following a bench trial on stipulated facts, the trial
1
For a more detailed statement of facts relating to the
underlying crime, see State v. Grell (Grell I), 205 Ariz. 57,
58-59 ¶¶ 3-15, 66 P.3d 1234, 1235-36 (2003), and State v. Grell
(Grell II), 212 Ariz. 516, 518 ¶¶ 3-4, 135 P.3d 696, 698 (2006).
court found Grell guilty of first degree murder and sentenced
him to death. While his direct appeal was pending, the United
States Supreme Court issued Atkins v. Virginia, 536 U.S. 304
(2002), which prohibits states from executing defendants who
have mental retardation. On appeal, we upheld Grell’s
conviction but remanded the case to the trial court to determine
whether Grell had mental retardation that would bar imposition
of the death penalty. State v. Grell (Grell I), 205 Ariz. 57,
64 ¶ 43, 66 P.3d 1234, 1241 (2003). In 2005, the trial court
determined that Grell did not meet his statutory burden of
proving mental retardation by clear and convincing evidence, a
finding we affirmed. See State v. Grell (Grell II), 212 Ariz.
516, 529 ¶ 63, 135 P.3d 696, 709 (2006). We nonetheless
remanded the case again for resentencing because Grell had
preserved his right to a jury sentencing under Ring v. Arizona,
536 U.S. 584 (2002). Grell II, 212 Ariz. at 529-30 ¶¶ 66-67,
135 P.3d at 709-10. The jury returned a death verdict,
triggering this automatic appeal. We have jurisdiction under
Article 6, Section 5(3) of the Arizona Constitution and A.R.S.
§ 13-4031 (2003).
I. ISSUES ON APPEAL
¶2 Grell raises several issues on appeal, most of which
center around his claim that he suffers from mental retardation.
While he concedes that he killed his daughter, he contends that
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Atkins requires us to reduce his sentence to life in prison
because of his mental retardation. In light of our conclusion
on independent review that Grell has proved mental retardation
and our consequent reduction of Grell’s sentence to natural
life, we do not address Grell’s other claims.
II. INDEPENDENT REVIEW
¶3 Because this capital murder occurred before August 1,
2002, we independently review the propriety of the death
sentence. A.R.S. § 13-755(A) (Supp. 2010).2
A. Aggravating Factors
¶4 The jury found three aggravating factors under A.R.S.
§ 13-751: (F)(2), conviction for a prior serious offense
(robbery); (F)(6), the murder was especially heinous, cruel, or
depraved; and (F)(9), the young age of the victim. On
independent review, we find that the State proved all three
aggravating factors beyond a reasonable doubt, but do not
address them in detail in light of our conclusion that Grell is
not subject to the death penalty by reason of mental
retardation.
B. Mental Retardation
¶5 Arizona law defines mental retardation as a condition
bearing three hallmarks: “[1] significantly subaverage general
2
Because the statutes have not materially changed during the
pendency of this case, we cite the current version, unless
otherwise noted.
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intellectual functioning, existing concurrently with [2]
significant impairment in adaptive behavior, [3] where the onset
of the foregoing conditions occurred before the defendant
reached the age of eighteen.” A.R.S. § 13-753(K)(3).3 In our
independent review, we apply this statutory definition as a
guide in determining whether Grell has established mental
retardation, and, consistent with A.R.S. § 13-751(C), apply a
preponderance of the evidence standard of proof for the penalty
phase.
1. Subaverage intellectual functioning
¶6 “Significantly subaverage general intellectual
functioning” is the touchstone for proving mental retardation
and means “a full scale intelligence quotient [IQ] of seventy or
lower,” A.R.S. § 13-753(K)(5). Grell has taken seven IQ tests
since 1981. Discarding the lowest and highest scores, his
remaining test scores were 72 (1981), 67 (1984), 69 (1984), 70
(1987), and 65 (1989), which demonstrate “significantly
subaverage” intellectual functioning. The State therefore
stipulated that Grell’s IQ scores satisfy the first statutory
element of mental retardation, significantly subaverage general
intellectual functioning. See Grell II, 212 Ariz. at 520 ¶ 16,
3
The legislature amended this statute, changing “mental
retardation” to “intellectual disability.” See 2011 Ariz. Sess.
Laws, ch. 89, § 5 (1st Reg. Sess.). We use “mental retardation”
in this opinion because that is the term employed by the parties
and doctors in this case.
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135 P.3d at 700.
2. Significantly impaired adaptive behavior
¶7 “‘Adaptive behavior’ means the effectiveness or degree
to which the defendant meets the standards of personal
independence and social responsibility expected of the
defendant’s age and cultural group.” A.R.S. § 13-753(K)(1).
¶8 In 2005, after our first remand of this case, the trial
court considered testimony on Grell’s adaptive behavior from two
defense experts, Drs. Globus and Wicks, and the State’s expert,
Dr. Scialli.4 Relying on Grell’s educational and correctional
records and their personal evaluations of Grell while he was
incarcerated, Drs. Globus and Wicks opined that Grell had severe
deficits in adaptive behavior. Dr. Scialli, however, diagnosed
Grell with antisocial personality disorder. He relied on
Grell’s educational and correctional records and found
persuasive a Vineland Adaptive Behavior Scale, administered to
Grell’s mother when Grell was approximately nine years old,
which showed Grell’s adaptive skills as only slightly below
average.
¶9 In 2005, the trial court relied heavily on Dr.
4
Those experts testified in the penalty phase of Grell’s
first trial in 2001. After our first remand of the case, the
trial court did not conduct an evidentiary hearing, but rather,
pursuant to the parties’ agreement, ruled on the mental
retardation issue in 2005 based on the record of the 2001
proceedings.
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Scialli’s opinions to find that Grell had not proved by clear
and convincing evidence that he had significant deficits in
adaptive behavior. We affirmed in 2006, deferring to the trial
court’s determinations because “[r]easonable minds [could]
differ as to how to interpret the evidence presented.” Grell
II, 212 Ariz. at 529 ¶ 63, 135 P.3d at 709.
¶10 Our current inquiry differs from that in Grell II.
Here, we must independently review the evidence presented in the
2009 resentencing trial to determine whether Grell proved mental
retardation by a preponderance of the evidence. See A.R.S.
§§ 13-755; 13-751(C) (setting forth defendant’s standard of
proof in penalty phase). This standard of proof is less
demanding than the clear and convincing evidence standard
required for a pre-trial finding that mental retardation barred
imposition of the death penalty. See id. § 13-753(G) (providing
for “clear and convincing” burden of proof for pre-trial Atkins
determination). In our independent review, we “do not defer to
the jury’s findings or decisions” or necessarily afford evidence
the same weight it received at trial. See State v. Prince, 226
Ariz. 516, 539 ¶ 93, 250 P.3d 1145, 1168 (2011).
¶11 Grell presented substantially more – and more
convincing – evidence of adaptive skill deficits in his 2009
resentencing hearing than he presented in 2005. For example, in
2005, the trial court found Grell’s school records highly
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persuasive in showing that he did not have deficits in adaptive
behavior. Several grade school records that were used to place
Grell in special education classes noted his “high adaptive
skills and successful integration,” and observed that he
“demonstrated good adaptive skills [and] ability to relate
conversationally, demonstrated spontaneity, and demonstrate[d]
appropriate behavior for the test situation.” The trial court
acknowledged that school officials had nonetheless consistently
concluded that Grell had a mental handicap or disability
sufficient to require his placement in special classes, but it
dismissed these educational diagnoses, observing that “no mental
expert has ever diagnosed [Grell] as being mentally retarded”
before Grell committed the murder.
¶12 In 2009, however, the defense called several witnesses
from Grell’s childhood schools to explain these records.
Frederick Krueger, the special education director in Grell’s
elementary school district, ran the program that classified
students for placement in special education classes. He
explained that his program used the term “mental disability” as
the educational equivalent of “mental retardation” and applied
the same three-prong definition that the Diagnostic and
Statistical Manual (“DSM”) established for mental retardation.
Based on this definition, Mr. Krueger’s team consistently
concluded that Grell had a mental disability. Mr. Krueger
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therefore approved placing Grell in a class for mentally
disabled (i.e., mentally retarded) students.
¶13 Charlene Thiede, a social worker who helped evaluate
Grell for special education placement, explained that the “high
adaptive skills” assessments in his grade school records
compared Grell’s adaptive skills to the skills of other students
with disabilities, not to students in the general population.
She testified that Grell had adaptive deficits in that he was
highly impulsive, could not understand social cues that children
his age should understand, and was largely unable to use the few
social skills that he had. She confirmed that Grell fell well
within the school’s mental retardation criteria.
¶14 Nona Smith, one of Grell’s special education teachers,
also confirmed that although Grell showed some adaptive skills –
such as good communication and good eye contact – his skills
were “good” only by comparison to the adaptive skills of
similarly disabled students, not when compared to non-disabled
children. She believed Grell belonged in classes for children
with mental retardation, not in the behavioral and learning
disabled classes in which he was later placed in middle school.
Another of Grell’s special education teachers, Marilyn Charron,
reiterated that Grell’s primary disability was mental
retardation, although he also suffered from serious behavioral
issues.
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¶15 The State argues that we should not rely on testimony
from school employees or the school records diagnosing Grell
with a “mental disability” or “mental handicap” because these
were merely educational diagnoses that might not have considered
adaptive skills. We are not persuaded. Mr. Krueger testified
that the educational evaluations were based on the criteria set
forth in the DSM, the manual used for clinical mental
retardation diagnoses. He stated that when educators of the
time used the term “mental disability,” it meant “mental
retardation.” Ms. Thiede concurred. Moreover, the school
records specifically address Grell’s adaptive skills. Ms.
Thiede and Ms. Smith both discussed elements of Grell’s behavior
that were relevant to “the effectiveness or degree to which
[Grell] meets the standards of personal independence and social
responsibility expected of the defendant’s age and cultural
group.” See A.R.S. § 13-753(K)(1). Grell presented evidence
corroborating the mental retardation conclusions in these school
reports and explaining why “high adaptive skills,” a phrase
relied upon by the State’s expert, was misleading when not
placed in context.
¶16 The school records reviewed by the trial court in 2005
appeared to suggest good adaptive skills, but when fully
explained in 2009 and properly understood, those records instead
establish that Grell has suffered from adaptive behavior
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deficits since he was a young child. These school records,
notably, were created in Grell’s youth, for an educational
purpose unrelated to these proceedings or any other litigation.
The teachers and social workers who relied on them had no motive
to fabricate or distort their observations or findings.
¶17 In addition to the new evidence regarding Grell’s
school records and grade school evaluations, other evidence has
changed significantly between 2005 and 2009. In 2009, Drs.
Globus, Wicks, and Scialli essentially repeated the opinions the
trial court considered in 2005. But at the 2009 hearing, the
defense presented testimony from two additional experts, both of
whom effectively rebutted the State’s evidence and persuasively
explained why Grell’s history indicates significant deficits in
adaptive skills.
¶18 In 2009, the defense called Dr. Mark Cunningham, a
board certified forensic and clinical psychologist and research
scientist with thirty years’ experience. Dr. Cunningham
reviewed Grell’s school and juvenile justice records to evaluate
his adaptive skills and concluded that Grell suffered severe
deficits in several categories relevant to assessing mental
retardation. He determined that Grell’s continuous behavioral
problems and poor social functioning were grounded in mental
retardation because they were consistent throughout Grell’s
childhood, whereas pure antisocial or personality disorders
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would have varied over time. Dr. Cunningham considered Grell’s
inability to control himself in unstructured situations and his
tendency to act more like children several years younger as
additional evidence of Grell’s poor adaptive skills. If Grell
had a mere conduct or personality disorder, Dr. Cunningham
reasoned, he would have committed acts that were simply against
the rules and deviant (like stealing lunch money), rather than
acting, as he did, in ways that were embarrassing or immature
(like throwing tantrums).
¶19 Dr. Cunningham concluded that Grell suffered severe
adaptive skill deficits, despite his ability to occasionally
demonstrate adaptive behavior in some areas. For example, Grell
created and maintained a false identity to avoid being
prosecuted as an adult, a behavior the trial court relied on in
2005 to show Grell’s adaptive capabilities. But Dr. Cunningham
explained that this ruse did not necessarily indicate strong
adaptive skills. He posed the question as whether a child at
Grell’s functional intelligence level (eight to eleven years
old) would be capable of creating and carrying on such a ruse;
and the answer was clearly “yes.”
¶20 Dr. Cunningham also testified that the Vineland test
relied upon by the trial court in 2005 was not properly
administered. Rather than asking Grell’s mother to answer
questions about her nine-year-old son’s behavior, which is the
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proper way of administering the test, Grell’s mother reportedly
was handed the test to fill out herself. This procedure likely
affected the validity of the test because the administrator is
required to adapt the questioning to probe for descriptions of
behavior in several categories. That would not have occurred if
Grell’s mother self-administered the test. Dr. Cunningham also
noted that the mother’s statements, and hence the results of the
test, were inconsistent with teachers’ and administrators’ in-
class observations of Grell as a child, which showed him to be
impulsive, inattentive, and unable to communicate effectively.
Dr. Cunningham thus opined that the results did not reflect
Grell’s actual adaptive skills and that an accurate score would
have been much lower. The record also includes evidence that
Grell’s mother did not want her son to be labeled “mentally
retarded,” which may have biased her responses. We therefore
afford this test little weight.5
5
Both the defense and prosecution conducted additional
adaptive skills tests after Grell committed the murder. The
defense conducted a second Vineland test and a Scale of
Independent Behavior, both of which showed severe deficits in
adaptive skills, but bias potentially infected these tests, and
the State effectively attacked the Vineland testing methodology.
The State conducted an adult version of the Vineland, which
showed that Grell had average adaptive skills for someone his
age, but the test was administered to members of the victim’s
family who had never met Grell before he turned eighteen and
might have harbored ill feelings toward him. Because the
results of each test are suspect, we afford them little weight
in our review.
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¶21 In the 2009 hearing, Grell also presented the testimony
of Dr. Denis Keyes, a well-known educational psychologist who
specializes in educating children with mental retardation. Dr.
Keyes has several decades of practical and academic experience
working in the field of mental retardation and was involved in
developing the definition of mental retardation adopted by the
DSM. Like Dr. Cunningham, Dr. Keyes conducted an adaptive
skills assessment and concluded that Grell’s “adaptive behavior
skills are very significantly underdeveloped, and strongly
support the finding that he is unable to adapt to normally
accepted adult social standards.” Dr. Keyes’ investigation
revealed that Grell’s family viewed Grell as “somewhat incapable
of caring for many of his own needs, and unable to make informed
decisions for his own welfare.” He concluded that Grell’s
record confirmed his adaptive deficits, as illustrated by his
lifelong inability “to conform his behavior to the expected
standards of his social and same aged peers.” He explained that
Grell’s impulsive behavior and constant acting out evidenced his
lack of adaptive skills because learning to confront difficult
or frustrating situations without reacting immediately is an
adaptive behavior; Grell’s long history of impulse control
problems shows that he never developed that ability. Dr. Keyes’
remaining conclusions were tied to either the Vineland test he
administered or his interviews with Grell’s family members, all
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of which we largely discount. See supra note 5. Although Dr.
Keyes relied in part on such information, his conclusions are
nonetheless telling:
Given the facts of Shawn’s low intellectual
functioning, his inability to learn from his mistakes,
his reduced capacity in communication, socialization
and self-help skills, and his significant history of
special education, followed by failure and dropping
out of school and, in the absence of significant
parental support and guidance, his subsequent serious
entanglement with the criminal justice system, it is
clear at this point that Shawn Grell is a person who
has mental retardation.
¶22 The State contends that Grell is not actually impulsive
or deficient in adaptive skills because he can “behave when he
wants to.” It points to instances when Grell acted
appropriately, albeit only for a short while, after being told
he did not have any more chances. The State also relies on
Grell’s ability to hold jobs for short periods, his relationship
with Kristen’s mother, his willingness to stop using drugs so
that he could see Kristen, and his extended good behavior during
this litigation. This evidence, the State claims, is consistent
with antisocial personality disorder, not adaptive behavior
deficits and mental retardation.
¶23 But Grell’s occasional ability to behave is not
conclusive of his adaptive skills. Dr. Keyes and several other
defense witnesses testified, without rebuttal by the State, that
maladaptive behavior disorders, including antisocial personality
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disorder, can coexist with mental retardation. Dr. Keyes
explained that clinicians often overlook this fact and
mistakenly attribute behavioral issues to personality disorders,
without considering that adaptive skill deficits might be the
underlying cause of the behavioral issues. Dr. Keyes also noted
that people may have inflated their assessment of Grell’s mental
abilities because Grell is a handsome man who does not fit the
physical stereotype of someone with mental retardation.
Furthermore, several witnesses testified that people with mental
retardation react positively to structured situations; they can
learn behaviors after considerable repetition. Thus, Grell
might have behaved for short periods because he was in highly
structured situations.
¶24 In addition to presenting affirmative evidence in 2009
of adaptive skill deficits, Grell convincingly rebutted the
State’s case in a way that he did not do in 2005. The State’s
sole mental retardation expert throughout these proceedings has
been Dr. Scialli, a board certified psychiatrist. He does not
diagnose, treat, or educate those with mental retardation. In
preparing for his testimony, he reviewed Grell’s educational and
correctional records and interviewed members of Grell’s family.
¶25 Aside from the childhood Vineland test administered to
Grell’s mother and the false identity incident that Dr.
Cunningham effectively discredited, see supra ¶ 20, Dr. Scialli
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relied on an adaptive skills test called the Minnesota
Multiphasic Personality Inventory-2 (MMPI-2) that was
administered to Grell after he committed the murder. The
diagnostic report for the test indicated that people with
Grell’s response pattern generally suffer from some form of
personality disorder. Based on his review, Dr. Scialli
diagnosed Grell with antisocial personality disorder, alcohol
intoxication, alcohol dependence, amphetamine abuse, cannabis
abuse, learning disorders, and attention deficit-hyperactivity
disorder (“ADHD”). But the report did not address mental
retardation as a possible additional diagnosis.
¶26 In rejecting Grell’s mental retardation claims in 2005,
the trial court was more persuaded by the 2001 testimony of Dr.
Scialli than by that of Drs. Globus and Wicks. Based on the
extensive additional evidence presented in 2009, however, we
find several reasons to reach a different conclusion.
¶27 First, in 2009, Dr. Scialli acknowledged that, as a
psychiatrist, he was not regularly involved in the clinical
diagnosis of mental retardation and was not qualified to
administer the tests commonly used to diagnose mental
retardation. And unlike Drs. Keyes and Cunningham, who have
both published extensively concerning mental retardation in
peer-reviewed journals, Dr. Scialli has never published a peer-
reviewed article on mental retardation issues.
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¶28 Second, in 2009, Dr. Scialli initially testified that
he “didn’t see any evidence” in Grell’s records that Grell’s
schools considered adaptive skills when diagnosing him with
mental retardation. But he later acknowledged that the records
include several notes specifically referring to Grell’s adaptive
skills and the Vineland test the school administered to gauge
those skills.
¶29 Third, Dr. Scialli testified that he focused on Grell’s
current functioning — not, as the statute requires, on
significant impairment that manifested itself “before the
defendant reached the age of eighteen,” A.R.S. § 13-753(K)(3) —
and some of Scialli’s conclusions depended on interviews with
people who knew Grell only after he reached adulthood.
¶30 Fourth, the MMPI-2 test upon which Dr. Scialli relied
was unreliable. The record suggests that Grell might not have
had adequate time or lacked the intellectual functioning to
comprehend the test. To overcome this deficit, the
administrator read the questions to Grell, even though subjects
are supposed to take the test on their own.
¶31 Finally, Dr. Scialli conceded that antisocial
personality disorder and mental retardation are not mutually
exclusive diagnoses. In other words, his opinion that Grell has
antisocial personality disorder, alcohol intoxication,
alcoholism, ADHD, and other conditions, is not inconsistent with
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Grell also having mental retardation. In sum, ample evidence in
the 2009 record causes us to question Dr. Scialli’s conclusions.
¶32 In contrast, the State did not question Dr.
Cunningham’s professional experience or undermine his analysis,
opinions, or credibility. Dr. Keyes, at times, appeared to act
as an advocate. We therefore find Dr. Cunningham’s opinions on
Grell’s adaptive behavior more persuasive, but nonetheless give
Dr. Keyes’ testimony some weight, given Dr. Keyes’ experience
and reputation in the mental retardation field.
¶33 Moreover, we find nothing in the school records or the
testimony of school employees that casts doubt on their
conclusions that Grell had mental retardation when the
administrators and teachers dealt with him as a child. Indeed,
the records reflect that Grell suffered deficits in several
categories that the State’s expert admitted were relevant to the
adaptive skills inquiry, including the ability to socialize with
peers and classmates, the ability to make friends, and the
ability to use the bathroom independently.
¶34 Grell’s extensive educational, medical, and criminal
history shows consistent observations and documentation of his
social and adaptive deficiencies since his early childhood.
Throughout his life, Grell threw tantrums, got into fights,
ditched school, ran away from home and treatment centers,
committed crimes, tormented young children and the elderly, and
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could not hold jobs. Those who interacted with Grell identified
him at a very young age as someone who had an intellectual
disability and described him as “deficient in the ability to
establish a normal degree of affection, empathy or bond with the
others,” as having “a significant degree of callousness
regarding the feelings of others,” and as “functioning very
immaturely and distrustfully,” with “very poor” overall adaptive
functioning. Such a mental health history, by itself, provides
strong evidence that Grell suffered a “significant impairment”
in the ability to “meet[] the standards of personal independence
and social responsibility expected” of him. A.R.S. § 13-
753(K)(1), (3).
¶35 The record also contains some indications of Grell’s
limited ability to adapt. Although this evidence makes our
decision difficult, a diagnosis of mental retardation, as
statutorily defined, does not require a complete absence of
adaptive skills. Viewed in its entirety, the record before us
demonstrates an individual with “significant impairment” in “the
effectiveness or degree to which [he] meets the standards of
personal independence and social responsibility expected of the
defendant’s age and cultural group.” Id. Grell has proved by a
preponderance of the evidence that he has a disorder involving
“significantly subaverage general intellectual functioning”
coupled with significant deficits in adaptive behavior that
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manifested before age eighteen, and thus that he has mental
retardation.
C. Propriety of the Death Sentence
¶36 In light of Grell’s mental retardation, our decision on
the propriety of the death sentence is controlled by the Supreme
Court’s opinion in Atkins, which unequivocally prohibits states
from executing defendants with mental retardation because to do
so would constitute cruel and unusual punishment in violation of
the Eighth Amendment. 536 U.S. at 321. As the Supreme Court
explained, such persons’ moral culpability is constitutionally
significantly reduced:
Mentally retarded persons frequently know the
difference between right and wrong and are competent
to stand trial. Because of their impairments,
however, by definition they have diminished capacities
to understand and process information, to communicate,
to abstract from mistakes and learn from experience,
to engage in logical reasoning, to control impulses,
and to understand the reactions of others. There is
no evidence that they are more likely to engage in
criminal conduct than others, but there is abundant
evidence that they often act on impulse rather than
pursuant to a premeditated plan, and that in group
settings they are followers rather than leaders.
Their deficiencies do not warrant an exemption from
criminal sanctions, but they do diminish their
personal culpability.
Id. at 318. The foregoing accurately describes Grell.
Certainly, at some level, Grell knew the difference between
right and wrong, but the record is replete with examples of his
inability, in keeping with his mental age, to understand and
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process information, to communicate effectively, to reason
abstractly and learn from mistakes or experiences, and to
control his actions.
III. CONCLUSION
¶37 We are fully aware of the horrific nature of this crime
and the devastation it has brought upon Kristen’s family. But
given the recognition under our Constitution that defendants
with mental retardation are less morally culpable for their
crimes, we conclude that under the Supreme Court’s ruling in
Atkins, Grell is ineligible for execution. We therefore vacate
the trial court’s death sentence and impose a sentence of
natural life in prison.6
__________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
__________________________________
Scott Bales, Vice Chief Justice
__________________________________
A. John Pelander, Justice
6
In light of this disposition, we do not list the issues
Grell raised on appeal to avoid preclusion.
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__________________________________
Robert M. Brutinel, Justice
__________________________________
Ann A. Scott Timmer, Justice*
*Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Ann A. Scott Timmer, Judge of the
Arizona Court of Appeals, Division One, was designated to sit in
this matter. Since this case was argued, Judge Timmer was
appointed by Governor Janice K. Brewer as a Justice of the
Arizona Supreme Court.
B A L E S, Vice Chief Justice, Concurring
¶38 Applying independent review, the Court concludes that
Grell has established by a preponderance of the evidence that he
has mental retardation, supra ¶ 35, and therefore he cannot be
sentenced to death. Id. at ¶ 36. Because the federal
constitution does not allow states to execute defendants who
prove by a preponderance that they have mental retardation, see
Grell II, 212 Ariz. at 530 ¶ 70, 135 P.3d at 710 (2006) (Bales,
J., concurring in part and dissenting in part), I concur in the
Court’s opinion sentencing Grell to natural life in prison.
¶39 Two other issues merit brief comment. Arizona statutes
contemplate that the trial court will determine pretrial whether
a defendant has mental retardation (now “intellectual
disability”). See A.R.S. § 13-753. Here, the trial court ruled
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in 2005, based on evidence presented in 2001, that Grell had not
shown mental retardation. At the end of the penalty phase in
2009, the trial court denied Grell’s motion to enter a judgment
finding that he has mental retardation, reasoning that it had no
procedural means to revisit the issue it had decided in 2005.
But as the Court notes, supra ¶ 26, “extensive additional
evidence” on the retardation issue was presented at the 2009
trial. Such evidence could have provided good cause for the
trial court to reconsider its pretrial determination. See Ariz.
R. Crim. P. 16.1(d) (impliedly permitting courts to reconsider
pretrial determinations upon finding of good cause).
¶40 Our independent review in this case makes it
unnecessary to address some potentially difficult issues in
applying A.R.S. § 13-753 to murders occurring after August 1,
2002. The statute contemplates that the trial court will apply
a clear and convincing standard of proof to the pretrial
screening determination on mental retardation. A.R.S. § 13-
753(G). If the trial court concludes that the defendant has not
met this burden, the defendant may present evidence of mental
retardation during the penalty phase. Id. § 13-753(F).
¶41 Section 13-753, originally enacted before the United
States Supreme Court decided Atkins, does not by its terms
require either the trial court or the jury to consider if a
defendant has shown, by a preponderance of the evidence, that he
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has mental retardation as a bar to execution. Yet the Court’s
decision today recognizes that a finding of mental retardation
by a preponderance precludes a death sentence. See supra ¶¶ 35,
36. In cases not subject to independent review (i.e., those
involving murders committed after August 1, 2002), courts will
need to address how to assure that a fact finder (whether the
trial court or the jury) considers whether a defendant has
proved mental retardation by a preponderance standard. These
issues might, of course, also be subject to legislative action,
as Atkins affords states flexibility in identifying procedures
to implement the Constitution’s proscription on executing
defendants who have mental retardation. See 536 U.S. at 531;
Commonwealth v. Sanchez, 36 A.3d 24, 60-61 (Pa. 2011)
(discussing different approaches states have taken to
determination of mental retardation).
__________________________________
Scott Bales, Vice Chief Justice
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State of Arizona v. Shawn Ryan Grell
Court: Arizona Supreme Court
Date filed: 2013-01-09
Citations: 231 Ariz. 153, 291 P.3d 350
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