State v. Arellano, CV-05-0397-SA.

• Decision Date: 24 May 2006
• Docket Number: No. CV-05-0397-SA.,CV-05-0397-SA.
• Parties: STATE of Arizona, Petitioner, v. The Honorable Silvia R. ARELLANO, Judge of the Superior Court of Arizona, in and for the County of Pinal, Respondent, and Michael Apelt and Rudi Apelt, Real Parties in Interest.
• Court: Arizona Supreme Court

Page 1015

143 P.3d 1015

213 Ariz. 474

STATE of Arizona, Petitioner, v. The Honorable Silvia R. ARELLANO, Judge of the Superior Court of Arizona, in and for the County of Pinal, Respondent, and Michael Apelt and Rudi Apelt, Real Parties in Interest.

No. CV-05-0397-SA.

Supreme Court of Arizona, En Banc.

May 24, 2006.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Patricia A. Nigro, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Dana Carpenter, Phoenix, Attorney for Michael Apelt.

Jon M. Sands, Federal Public Defender by Michael L. Burke, Assistant Federal Public Defender, Phoenix, Attorneys for Rudi Apelt.

McDermott Will & Emery LLP by Douglas G. Edelschick, Washington, DC, and Snell & Wilmer LLP by Daniel J. McAuliffe, Kim S. Magyar, Phoenix, Attorneys for Amicus Curiae American Association on Mental Retardation; Amicus Curiae The ARC of the United States; and Amicus Curiae The ARC of Arizona.

OPINION

McGREGOR, 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 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, 861 P.2d at 638.

¶ 3 Following the United States Supreme Court ruling in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (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 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, 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 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, 211 Ariz. 224, 227 ¶ 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 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...