SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-05-0397-SA
Petitioner, )
) Pinal County
v. ) Superior Court
) No. CR-14946
THE HONORABLE SILVIA R. ARELLANO, )
JUDGE OF THE SUPERIOR COURT OF )
ARIZONA, in and for the County )
of Pinal, ) O P I N I O N
)
Respondent, )
)
AND )
)
MICHAEL APELT and RUDI APELT, )
)
Real Parties in Interest. )
)
__________________________________)
Special Action from the Superior Court in Pinal County
The Honorable Silvia R. Arellano, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED IN PART; REMANDED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Patricia A. Nigro, Assistant Attorney General
Attorneys for State of Arizona
DANA CARPENTER Phoenix
Attorney for Michael Apelt
JON M. SANDS, FEDERAL PUBLIC DEFENDER Phoenix
By Michael L. Burke, Assistant Federal Public Defender
Attorneys for Rudi Apelt
McDERMOTT WILL & EMERY LLP Washington, DC
By Douglas G. Edelschick
And
SNELL & WILMER LLP Phoenix
By Daniel J. McAuliffe
Kim S. Magyar
Attorneys for Amicus Curiae American Association on Mental
Retardation; Amicus Curiae The ARC of the United States; and
Amicus Curiae The ARC of Arizona
________________________________________________________________
M c G R E G O R, Chief Justice
¶1 The State brought this special action to resolve
questions relating to the procedure and evidence involved in
hearings held on mental retardation in capital cases pursuant to
Arizona Revised Statutes (A.R.S.) section 13-703.02 (Supp.
2005). We consider (1) whether a trial judge may determine that
a defendant has established a rebuttable presumption of mental
retardation by considering only expert reports of intelligence
quotient (IQ) scores and (2) whether testimony from lay
witnesses regarding a defendant’s present adaptive behavior is
relevant to a determination of mental retardation. We hold that
a defendant can establish a rebuttable presumption of mental
retardation through IQ scores and that evidence from lay
witnesses of post-age-eighteen adaptive behavior may be relevant
to a determination of mental retardation.
I.
¶2 Michael and Rudi Apelt are brothers and German
citizens who were sentenced to death for the murder of Cindy
2
Monkman. 1 Between August and October of 1988, “the brothers met
and ‘conned’ a series of women” to obtain “money and other
assistance.” State v. Michael Apelt, 176 Ariz. 349, 353, 861
P.2d 634, 638 (1993). As part of their plan, the Apelts looked
for a woman to marry Michael. Id. During this time, Michael
and Rudi met Cindy Monkman at a bar and claimed to be computer
and banking experts. Id. After having known each other for
less than a month, Cindy and Michael were married in Las Vegas.
Id. at 354, 861 P.2d at 639. Ten days later, at Michael’s
suggestion, they applied for life insurance policies on Cindy’s
life, totaling $400,000. Id. The day after the life insurance
policies were approved, Michael and Rudi murdered Cindy. Id. at
354-55, 861 P.2d at 639-40. A jury found Michael and Rudi
guilty of first degree murder and conspiracy to commit first
degree murder, and the trial judge sentenced the brothers to
death for the murder convictions. State v. Rudi Apelt, 176
Ariz. 369, 371, 861 P.2d 654, 656 (1993); Michael Apelt, 176
Ariz. at 357, 861 P.2d at 642. This Court subsequently affirmed
Michael’s and Rudi’s convictions and sentences. Rudi Apelt, 176
Ariz. at 372, 861 P.2d at 657; Michael Apelt, 176 Ariz. at 353,
1
Because the facts of this case have already been treated in
depth in the Apelts’ capital appeal opinions, we only briefly
recount the facts of the murder of Cindy Monkman. For a more
detailed description, see State v. Rudi Apelt, 176 Ariz. 369,
861 P.2d 654 (1993), and State v. Michael Apelt, 176 Ariz. 349,
861 P.2d 634 (1993).
3
861 P.2d at 638.
¶3 Following the United States Supreme Court ruling in
Atkins v. Virginia, 536 U.S. 304 (2002), which held that the
Eighth Amendment prohibits executing mentally retarded
defendants, the Apelts filed petitions for post-conviction
relief claiming that they are mentally retarded. See Ariz. R.
Crim. P. 32. As required by statute, both State and defense
psychological experts evaluated the Apelts to determine whether
they are mentally retarded. See A.R.S. § 13-703.02.B-.D.
During the proceedings held under section 13-703.02, the trial
court entered two orders that led to this special action.
First, the court found that the Apelts had established a
rebuttable presumption of mental retardation. Second, the court
granted in part the Apelts’ request that the court preclude
testimony by employees of the Arizona Department of Corrections
(ADOC) about the Apelts’ present adaptive behavior.
¶4 The State challenged those rulings by filing a special
action petition with this Court rather than with the Court of
Appeals, which could have exercised jurisdiction. See A.R.S. §
12-120.21.A.4 (2003). Although the Court of Appeals lacks
jurisdiction over direct appeals from death sentences, section
12-120.21.A.4 grants the Court of Appeals “[j]urisdiction to
hear and determine petitions for special actions brought
pursuant to the rules of procedure for special actions, without
4
regard to its appellate jurisdiction.” (Emphasis added.) This
grant to the Court of Appeals of broad jurisdiction over special
actions necessarily includes special actions arising out of
capital cases. See Hurles v. Superior Court, 174 Ariz. 331, 331
n.1, 849 P.2d 1, 1 n.1 (App. 1993). In most circumstances, a
petitioner, including a petitioner involved in capital
litigation, should file a special action in the Court of
Appeals. Nevertheless, we accepted jurisdiction because the
Supreme Court’s opinion in Atkins has raised questions of
statewide importance, including the issues raised in this case,
concerning the procedure for mental retardation hearings and the
application and interpretation of A.R.S. § 13-703.02. We
therefore exercise jurisdiction pursuant to Article 6, Section
5.3, of the Arizona Constitution.
II.
¶5 The legislature defined the procedure for determining
whether a defendant in a capital case has mental retardation in
A.R.S. § 13-703.02. As the State concedes, this statute applies
to all capital sentencing proceedings, including post-conviction
proceedings brought to determine whether a defendant meets the
statutory definition of mental retardation. See A.R.S. § 13-
703.02.J (stating that section 13-703.02 applies to all capital
sentencing proceedings); State v. Dann, 206 Ariz. 371, 375 ¶ 15
n.3, 79 P.3d 58, 62 n.3 (2003) (citing 2002 Ariz. Sess. Laws,
5
5th Spec. Sess., ch. 1, § 4, and noting that A.R.S. § 13-703.02
was amended to apply to all capital sentencing and resentencing
proceedings).
¶6 The statute requires that psychological experts
determine the defendant’s IQ before the trial court considers
the issue of mental retardation. A.R.S. § 13-703.02.B-.D.
After the experts submit their reports to the trial court,
the trial court shall hold a hearing to determine if
the defendant has mental retardation. At the hearing,
the defendant has the burden of proving mental
retardation by clear and convincing evidence. A
determination by the trial court that the defendant’s
intelligence quotient is sixty-five or lower
establishes a rebuttable presumption that the
defendant has mental retardation.
A.R.S. § 13-703.02.G.
¶7 The trial court considered reports submitted by
psychological experts for the State and for the defense. See
A.R.S. § 13-703.02.G. All of the experts opined that Michael
and Rudi have IQs of sixty-five or lower. On the basis of those
opinions, the trial court determined that the defendants had
established rebuttable presumptions of mental retardation.
¶8 While the State concedes that an IQ of sixty-five or
below establishes a rebuttable presumption of mental
retardation, the State claims that the trial court abused its
discretion by determining that the Apelts were entitled to such
a presumption before conducting an evidentiary hearing. In
6
making its ruling, the trial court stated that “[b]ecause
application of the presumption may affect the order in which
evidence is presented, it is logical to construe this statutory
language as permitting the pre-hearing determination of whether
or not the presumption applies.”
¶9 We review the interpretation of statutes de novo.
Pima County v. Pima County Law Enforcement Merit Sys.
Council, ___ Ariz. ___, ___ ¶ 13, 119 P.3d 1027, 1030 (2005).
“We interpret statutes to give effect to the legislature’s
intent. When a statute is clear and unambiguous, we apply its
plain language and need not engage in any other means of
statutory interpretation.” Kent K. v. Bobby M., 210 Ariz. 279,
283 ¶ 14, 110 P.3d 1013, 1017 (2005).
¶10 We conclude that the statute permits a trial court to
find that a defendant has established a rebuttable presumption
of mental retardation based solely on experts’ reports of a
defendant’s scores on IQ tests. The statute places no
limitation on the authority of a trial court to make that
determination. In addition, although the statute does not
define when a trial court is to make its initial determination,
subsection F indicates that the legislature intended the court
to make some preliminary determinations in reliance upon IQ
scores. Subsection F states, “If the scores on all the tests
for intelligence quotient administered to the defendant are
7
above seventy, the notice of intent to seek the death penalty
shall not be dismissed on the ground that the defendant has
mental retardation.” A.R.S. § 13-703.02.F. This language
directs the trial court to make a preliminary determination of
whether to foreclose dismissal of the death penalty on the
ground of mental retardation by considering IQ scores only. We
think that the legislature intended that the converse also be
true: The trial court should be able to determine whether a
defendant has established a rebuttable presumption of mental
retardation by relying on the defendant’s IQ scores, at least
when all experts agree that the IQ scores are sixty-five or
lower.
¶11 Rebuttable presumptions are commonly used in criminal
cases. See, e.g., Guthrie v. Jones, 202 Ariz. 273, 277 ¶ 18, 43
P.3d 601, 605 (App. 2002) (discussing rebuttable presumption of
intoxication or non-intoxication in prosecutions for driving
under the influence); Korzep v. Superior Court, 172 Ariz. 534,
539, 838 P.2d 1295, 1300 (App. 1991) (noting that A.R.S. § 13-
411.C provides a rebuttable presumption of reasonable conduct
when one acts to prevent commission of certain enumerated
offenses); State v. Fields, 117 Ariz. 319, 321, 572 P.2d 453,
455 (App. 1977) (discussing rebuttable presumption of a
defendant’s sanity). A rebuttable presumption, however,
“vanishes when the state provides contradictory evidence.”
8
Korzep, 172 Ariz. at 539, 838 P.2d at 1300; see also State v.
Grilz, 136 Ariz. 450, 455, 666 P.2d 1059, 1064 (1983) (once a
defendant produces evidence sufficient to raise reasonable doubt
as to sanity, the presumption disappears entirely).
¶12 Moreover, “a presumption or inference does not shift
the burden of proof, but only aids [a party] in maintaining its
burden.” State v. Knaubert, 27 Ariz. App. 53, 60, 550 P.2d
1095, 1102 (1976) (stating that the existence of a presumption
of sanity does not alter the State’s burden); see also State v.
Hyde, 186 Ariz. 252, 266, 921 P.2d 655, 669 (1996)
(distinguishing between the burden of going forward, which
“requires the party that bears it to produce sufficient
preliminary evidence,” and the burden of persuasion, which
“requires the party that bears it to persuade the trier of fact
to rule in its favor”). Like the presumption of sanity in
criminal cases, the rebuttable presumption of mental retardation
that arises under section 13-703.02.G merely affects who must go
forward with evidence and does not shift the burden of
persuasion. In mental retardation hearings, therefore, the
defendant maintains the burden of proving mental retardation.
Indeed, any other conclusion would be inconsistent with the
clear statutory language of section 13-703.02.G: “At the
hearing, the defendant has the burden of proving mental
retardation by clear and convincing evidence.”
9
¶13 In this case, the trial court made a preliminary
determination that the defendants’ IQ scores established
rebuttable presumptions of mental retardation. Therefore, the
trial court must find the defendants are mentally retarded if
the State fails to present any evidence to challenge that
conclusion. The presumption of mental retardation based on the
IQ scores vanishes, however, if the State presents evidence that
calls into question the validity of the IQ scores or tends to
establish that either defendant does not otherwise meet the
statutory definition of “mental retardation.” See A.R.S. § 13-
703.02.K.2 (defining “mental retardation” as also including
significant impairment in adaptive functioning and onset before
age eighteen). At that point, the IQ scores serve as evidence
of mental retardation, to be considered by the trial court with
all other evidence presented. We find no error in the trial
court’s determination that the Apelts established a rebuttable
presumption of mental retardation prior to an evidentiary
hearing.
III.
¶14 The State also challenges the trial court’s order
preventing the State from presenting testimony from ADOC
personnel regarding the Apelts’ current communication, social,
and interpersonal skills, as well as testimony relating to their
work, leisure, and health habits. In a pre-hearing ruling, the
10
trial court precluded direct testimony from ADOC employees “to
the extent that such testimony is offered to show Defendant’s
present adaptive behavior in prison.” 2 The court based this
ruling on its interpretation of section 13-703.02.K and
concluded that any adaptive behavior that occurs after the age
of eighteen is not relevant to a determination of mental
retardation. “Evidentiary rulings are subject to the trial
court’s determination and will not be disturbed, absent an abuse
of discretion.” State v. Jones, 197 Ariz. 290, 308 ¶ 47, 4 P.3d
345, 363 (2000). An abuse of discretion occurs when “the
reasons given by the court for its action are clearly untenable,
legally incorrect, or amount to a denial of justice.” State v.
Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18
(1983).
¶15 We begin our analysis by considering the statutory
language. Section 13-703.02.K.2 defines mental retardation as
“a mental deficit that involves significantly subaverage general
intellectual functioning, existing concurrently with significant
impairment in adaptive behavior, where the onset of the
foregoing conditions occurred before the defendant reached the
age of eighteen.” The statute defines adaptive behavior, in
2
The court also ruled that “[a]ny other use of such
testimony, either as support for an expert’s opinion on mental
retardation, or as it might specifically rebut defense testimony
11
turn, as “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. § 13-703.02.K.1.
¶16 The language of section 13-703.02.K supports the
proposition that a trial court may consider post-age-eighteen
adaptive behavior to evaluate mental retardation. Although
section 13-703.02.K.2 requires that the onset of intellectual
and adaptive behavior deficits must have “occurred before the
defendant reached the age of eighteen,” the statute does not
limit evidence of adaptive behavior to events that occurred
before age eighteen. Indeed, at oral argument, the Apelts
conceded that evidence should not be excluded simply because it
involves post-age-eighteen behavior.
¶17 Evidence of post-age-eighteen adaptive behavior skills
or deficiencies, whether observed by ADOC personnel or other
witnesses, could well be relevant to a determination of mental
retardation. Under Rule 401 of the Arizona Rules of Evidence,
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence”
is relevant.
________________________________
concerning adaptive behavior prior to the age of eighteen, will
be considered . . . at the appropriate time.”
12
¶18 In this case, any testimony from ADOC personnel about
the Apelts’ adaptive behavior skills as adults tends to make the
existence of any deficiency in adaptive functioning more
probable than it would be without such evidence. 3 In addition,
because mental retardation is a “permanent, relatively static
condition,” Heller v. Doe by Doe, 509 U.S. 312, 323 (1993),
evidence of any skills or deficiencies in adaptive behavior
exhibited by a defendant, even after age eighteen, helps
determine whether a defendant has mental retardation.
¶19 Furthermore, testimony about adaptive behavior is not
irrelevant or otherwise inadmissible merely because it comes
from a lay witness. Finders of fact often consider testimony
from lay witnesses in cases involving a defendant’s mental
condition. For example, “lay testimony has long been admissible
in criminal trials on the issue of sanity,” State v. Bay, 150
Ariz. 112, 116, 722 P.2d 280, 284 (1986), and has been
3
In its amicus brief, the American Association on Mental
Retardation (AAMR) noted that excluding non-expert evidence
solely on the basis of the ADOC employees’ lack of experience
with the defendant prior to the age of eighteen “would not be
consistent with clinical practice” because “[t]rained experts in
mental retardation regularly consider non-expert observations of
post-eighteen adaptive behavior to be relevant to an assessment
of mental retardation.” On the other hand, the AAMR also noted
that non-expert observations “receive little or no weight from
clinical experts if they are made in the context of atypical
environments (such as prison).” The weight that evidence is to
be given, however, is a consideration separate from its
admissibility. See infra ¶ 19.
13
“universally held” proper and admissible on the subject of
competency, Sapp v. Lifrand, 44 Ariz. 321, 324, 36 P.2d 794,
796 (1934). “[T]he fact that [a person] is a lay witness goes
not to the admissibility of the testimony but rather to its
weight.” Bay, 150 Ariz. at 116, 722 P.2d at 284.
¶20 Other jurisdictions have reached the same conclusion
as we do today and have allowed corrections personnel to testify
about a defendant’s post-age-eighteen adaptive behavior in
proceedings to determine mental retardation. See, e.g., Pickens
v. State, 126 P.3d 612, 617 (Okla. Crim. App. 2005) (corrections
personnel testified about defendant’s communication deficits,
noting that “things had to be explained to [him] more than once,
in ‘simpler’ terms, and multi-syllabic words confused him”); Ex
parte Briseno, 135 S.W.3d 1, 18 (Tex. Crim. App. 2004) (four
Texas Department of Criminal Justice officers testified at an
Atkins hearing about Briseno’s communication skills and that
they “saw him reading magazines and filling out commissary forms
appropriately”).
¶21 Finally, we note that applying the trial court’s
interpretation of section 13-703.02.K would lead to an illogical
result. The provision requiring that symptoms of mental
retardation occur before age eighteen applies to both elements
of mental retardation: significantly subaverage intelligence
and significantly impaired adaptive behavior. If the statutory
14
reference to onset before the age of eighteen precludes
observations of adaptive behavior made after the age of
eighteen, that preclusion applies equally to evidence of
intellectual functioning. See A.R.S. § 13-703.02.K.2. A court,
then, could consider IQ tests, which are routinely used to
measure intellectual functioning, only if the tests were given
before the age of eighteen. Because pre-age-eighteen IQ test
results are not always available, such an interpretation could
restrict a defendant’s ability to prove mental retardation.
That interpretation is also inconsistent with A.R.S. 13-
703.02.B, which contemplates that IQ tests given to an adult
defendant will be used to evaluate mental retardation. See
A.R.S. § 13-703.02.B (providing that the court will appoint a
psychological expert to administer an IQ test).
¶22 Accordingly, we conclude that the trial court erred
as a matter of law when it held that evidence of the Apelts’
adaptive behavior after age eighteen is irrelevant to a
determination of mental retardation under section 13-703.02. 4
¶23 The trial court also concluded that even assuming that
ADOC testimony was relevant to the issue of mental retardation,
4
Of course, the trial judge must determine whether any
particular testimony by a lay witness regarding post-age-
eighteen adaptive behavior should be excluded because, for
instance, it lacks foundation, is not relevant, is cumulative or
unduly prejudicial. Ariz. R. Evid. 701, 401, 403.
15
it would be unduly prejudicial. Because this ruling grew out of
the trial court’s erroneous determination that the testimony of
ADOC employees is irrelevant as a matter of law, we set aside
this ruling also. 5
IV.
¶24 For the foregoing reasons, we vacate that portion of
the trial court’s order that precluded testimony by ADOC
employees and remand to the trial court for proceedings
consistent with this opinion.
_______________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
5
A trial judge usually will not exclude evidence as unduly
prejudicial when the trial is to the court. “Generally, error
is less likely to be deemed to require reversal in a bench trial
because the judge is less likely to be deflected from the task
of fact-finding by prejudicial considerations that a jury might
find compelling.” People v. Edwards, 431 N.W.2d 83, 86 (Mich.
Ct. App. 1988); see also State v. McMillin, 783 S.W.2d 82, 96
(Mo. 1990) (“Where a judge, rather than a jury, is the trier of
fact, the reviewing court presumes that inadmissible evidence is
not prejudicial.”), abrogated on other grounds by Morgan v.
Illinois, 504 U.S. 719 (1992); Commonwealth v. Carter, 546 A.2d
1173, 1181 (Pa. Super. Ct. 1988) (noting that a judge can
disregard evidence ultimately proving to be inflammatory,
misleading or prejudicial, or resting upon a suspect foundation
more easily than a jury can).
16
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
17