State v. Grell, CR–09–0199–AP.

• Decision Date: 09 January 2013
• Docket Number: No. CR–09–0199–AP.,CR–09–0199–AP.
• Citation: 291 P.3d 350,653 Ariz. Adv. Rep. 7,231 Ariz. 153
• Parties: STATE of Arizona, Appellee, v. Shawn Ryan GRELL, Appellant.
• Court: Arizona Supreme Court

231 Ariz. 153
291 P.3d 350
653 Ariz. Adv. Rep. 7

STATE of Arizona, Appellee,
v.
Shawn Ryan GRELL, Appellant.

No. CR–09–0199–AP.

Supreme Court of Arizona,
En Banc.

Jan. 9, 2013.

[291 P.3d 351]

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, Phoenix, Amy Pignatella Cain, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Law Office of Treasure VanDreumel, P.L.C. by Treasure L. VanDreumel, Phoenix, Attorney for Shawn Ryan Grell.

OPINION
BERCH, 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 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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (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, 122 S.Ct. 2428, 153 L.Ed.2d 556 (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 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 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.”

[291 P.3d 352]

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, 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. 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. SeeA.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 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

[291 P.3d 353]

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 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.

¶ 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...