State v. Grell

Citation212 Ariz. 516,135 P.3d 696
Decision Date06 June 2006
Docket NumberNo. CR-01-0275-AP.,CR-01-0275-AP.
PartiesSTATE of Arizona, Appellee, v. Shawn Ryan GRELL, Appellant.
CourtSupreme Court of Arizona

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, Amy S. Pignatella Cain, Assistant Attorney General, Tucson, Attorneys for the State of Arizona.

James J. Haas, Maricopa County Public Defender by James R. Rummage, Deputy Public Defender, Phoenix, Attorneys for Shawn Ryan Grell.

OPINION

BERCH, Vice Chief Justice.

¶ 1 Appellant Shawn Grell was convicted of first degree murder in 2000 following a bench trial on stipulated facts. After an aggravation and mitigation hearing, the judge sentenced Grell to death. While Grell prepared his direct appeal, the United States Supreme Court decided cases that held (1) that juries must find the aggravating factors that allow the imposition of a sentence of death, Ring v. Arizona (Ring II), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and (2) that mentally retarded defendants may not be executed, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In addition to raising sentencing issues under Ring, Grell claimed on appeal that, under Atkins, his mental retardation should preclude a death sentence in his case. In lieu of reviewing Grell's sentence for harmless error, this court ordered the trial court to re-examine the issue of Grell's mental retardation, applying the standards articulated in Atkins. State v. Grell (Grell I), 205 Ariz. 57, 63, ¶ 41, 66 P.3d 1234, 1240 (2003). On February 2, 2005, the trial court held another hearing and issued its ruling finding no mental retardation.

¶ 2 For the appeal, this court ordered the parties to combine briefings on both the sentencing issues and the mental retardation issues. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001). We affirm the trial court's finding that Grell did not prove mental retardation, but remand the case for jury sentencing.

I. FACTS1

¶ 3 On December 2, 1999, Shawn Grell picked up his two-year-old daughter, Kristen, from daycare. They drove around for several hours, during which time Grell bought a plastic gas can and gasoline. He then drove to a deserted area in Mesa, put his sleeping daughter on the ground, poured gasoline on her, and lit her on fire. She awoke and stumbled several feet while engulfed in flames before eventually succumbing to the smoke and flames. Grell drove to a nearby convenience store to buy beer. He told the clerk he had seen some kids set a dog on fire in a vacant lot. After driving around for several hours, Grell called the police and turned himself in at five o'clock the next morning. He later held a press conference at which he admitted killing his daughter.

¶ 4 Grell was charged with first degree murder and child abuse. He waived a jury trial and instead the parties submitted to the trial judge a twenty-page narrative with forty-four attachments to serve as a basis for determining guilt. In September 2000, the judge convicted Grell of first degree murder, but acquitted him of child abuse.

¶ 5 Grell agreed to the admission of the documents at the sentencing hearing, but attempted to preserve his right to a jury trial on sentencing issues by the following language: "This stipulation shall in no way constitute a waiver of any rights the defendant may have to have a jury empanelled to determine the existence or absence of any aggravating and or mitigating circumstances." When Grell specifically requested that a jury be empanelled for the sentencing proceeding, however, the motion was denied.

A. Original Sentencing

¶ 6 The combined aggravation and penalty phase hearing held in June 2001 included testimony from mental health experts, law enforcement officers, a burn injury expert and Grell's sister. The State asserted three statutory aggravating factors: that Grell had previously been convicted of a serious offense; that the crime was committed in an especially heinous, cruel, or depraved manner; and that the victim was younger than fifteen years of age. See A.R.S. § 13-703(F)(2), (F)(6), (F)(9) (1999). The trial court found all three.

¶ 7 The prior serious offense was a 1996 conviction for robbery. See A.R.S. § 13-703(H) (1999) (identifying robbery as a "serious offense" for purposes of use as a death penalty aggravator). That Kristen was younger than fifteen at the time of the crime was proven by a birth certificate showing her 1997 birthdate, which established that she was two years old at the time of her death.

¶ 8 Citing the facts that Kristen was conscious when set on fire, that she had to have suffered immense physical pain, and that Grell should have foreseen the pain she would suffer, the court also found the crime "especially cruel." In addition, while acknowledging that only a finding of cruelty was necessary to satisfy the § 13-703(F)(6) aggravating factor, the court also found the crime heinous and depraved.2 The court cited the following factors in making these findings: (1) the crime was senseless; (2) the victim was helpless; (3) the victim was the defendant's own child; (4) the method of killing ensured that the victim would suffer "unimaginable pain"; (5) the method ensured that the body would be disfigured; and (6) the defendant made comments to a convenience store clerk after the murder about seeing a dog set on fire.3 The court stated that these facts satisfied the test set forth in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983), and concluded that the manner of killing, in addition to being cruel, was also heinous and depraved.

¶ 9 In mitigation, Grell alleged the statutory mitigating circumstance of mental impairment, see A.R.S. § 13-703(G)(1), as well as non-statutory mitigators of mental retardation, learning disabilities, difficult childhood, and remorse. Much of the evidence at the hearing centered on Grell's claims of mental impairment, mental retardation, and a cognitive disorder caused by brain damage.

¶ 10 Drs. Globus and Wicks testified for the defense and Drs. Mayberg and Scialli testified for the State. On the issues of mental impairment and brain damage, Dr. Globus testified that he initially diagnosed Grell with brain damage before having a PET scan done and before having Dr. Wicks do a blind neuropsychological evaluation of Grell. Dr. Globus is not certified to read PET scans, and those who prepared the report for him did not testify, facts noted by the court in its sentencing decision. Dr. Mayberg, the State's neuropsychologist who is qualified to read PET scans, testified that Grell's PET scan showed no brain damage. Dr. Scialli testified that he found no evidence of a cognitive disorder caused by brain damage, but instead diagnosed Grell as having only an anti-social personality disorder.

¶ 11 The trial court ultimately found "no credible evidence" that Grell suffered from brain damage. The court instead accepted Dr. Scialli's diagnosis that Grell suffered from an anti-social personality disorder, symptoms of which include acting impulsively and using poor judgment.

¶ 12 Drs. Globus and Wicks also testified regarding Grell's mental retardation, as did Dr. Scialli. The court acknowledged Grell's low IQ scores, ranging from 65 to 74, but weighted more heavily Dr. Scialli's testimony that Grell had adequate adaptive skills.4 In addition, the trial court observed that no one before Drs. Globus and Wicks had ever diagnosed Grell as having mental retardation and that Grell had demonstrated good adaptive skills by maintaining a false identity in order to be charged as a juvenile after he was arrested for robbery in 1996 when he was twenty years old.

¶ 13 Finding no mitigation sufficiently substantial to call for leniency, the judge sentenced Grell to death.

B. First Appeal

¶ 14 An automatic notice of appeal was filed. While the parties prepared for oral arguments, the United States Supreme Court handed down opinions in Atkins, 536 U.S. at 304, 122 S.Ct. 2242, and Ring II, 536 U.S. at 584, 122 S.Ct. 2428. This case was consolidated with other capital cases pending on direct appeal at the time for the purpose of deciding common Ring issues. State v. Ring (Ring III), 204 Ariz. 534, 65 P.3d 915 (2003). This court issued a decision in Grell I without considering the sentencing issues. 205 Ariz. at 60, ¶ 25, 66 P.3d at 1237.

¶ 15 In Grell I, 205 Ariz. at 58, ¶ 2, 66 P.3d at 1235, this court addressed Grell's trial issue and affirmed his conviction, but remanded the matter to the trial court for a re-evaluation of Grell's mental retardation claim in light of Atkins. The trial court had evaluated the mental retardation evidence as a mitigating factor rather than as a complete bar to execution. This court suggested that, on remand, the trial judge should apply A.R.S. § 13-703.02 as a guide in future proceedings to ascertain the existence of mental retardation.5 Id. at 64, ¶ 42, 66 P.3d at 1241.

C. Remand for Mental Retardation Hearing

¶ 16 Attempting to follow the procedures in A.R.S. § 13-703.02, the trial judge first suggested appointing a "pre-screening expert" to test Grell's IQ. Rather than subjecting Grell to additional testing, the State and the defense stipulated that Grell's IQ was less than 70 and that further IQ testing was unnecessary.

¶ 17 Before the mental retardation hearing, the parties briefed and argued the issue of burden of proof. The statute places the burden on the defendant to prove mental retardation by clear and convincing evidence. A.R.S. § 13-703.02(G). Grell argued, however, that because mental retardation serves as a constitutional bar to execution, the standard should be no higher than a preponderance of the evidence. Rejecting Grell's claim, the trial court required Grell to prove mental retardation by clear and convincing...

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