State v. Grell

• Decision Date: 01 April 2003
• Docket Number: No. CR-01-0275-AP.,CR-01-0275-AP.
• Citation: 205 Ariz. 57,66 P.3d 1234
• Parties: STATE of Arizona, Appellee, v. Shawn Ryan GRELL, Appellant.
• Court: Arizona Supreme Court

66 P.3d 1234

205 Ariz. 57

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

No. CR-01-0275-AP.

Supreme Court of Arizona, En Banc.

April 1, 2003.

Janet A. Napolitano, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Monica Beerling Klapper, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, by Lawrence S. Matthew, Deputy Public Defender and James R. Rummage, Deputy Public Defender and Shughart, Thomson, Kilroy, Goodwin & Raup, by Rudolph J. Gerber, Phoenix, Attorneys for Appellant.

OPINION

BERCH, Justice.

¶ 1 On December 2, 1999, Shawn Grell drove his two year old daughter, Kristen, to a remote area near Apache Junction, poured gasoline on her, then lit her on fire. She died from severe burns and smoke inhalation. The trial court found Grell guilty of first degree murder and sentenced him to death.

¶ 2 Direct appeal to this court is mandatory under Rules 26.15 and 31.2(b) of the Arizona Rules of Criminal Procedure. 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 remand for a determination of whether Grell is mentally retarded and therefore ineligible for the death penalty pursuant to the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

FACTS

¶ 3 On November 29, 1999, Shawn Grell left work early, claiming that he was needed at his girlfriend's house. He never returned to work. He spent the next few days at the home where he lived with his daughter, Kristen, his girlfriend, Amber Salem, and Amber's parents.

¶ 4 On the morning of December 2, Amber dropped Kristen off at a daycare center. Later that day, Grell picked Kristen up from the center, signing Amber's name instead of his own on the sign-out sheet.

¶ 5 That afternoon Grell drove to Mesa with Kristen. At 5:40 p.m., he stopped at a convenience store to purchase beer and a sports drink. About an hour later, Grell bought a red plastic gas container at a department store in Mesa. He continued to drive around Mesa before stopping at another convenience store where he bought just over a gallon of gasoline. Still later that evening, Grell entered a convenience store in Apache Junction, but apparently did not buy anything.

¶ 6 Grell then drove to a remote area near Apache Junction, took his sleeping daughter out of the car, and laid her on the ground in a drainage ditch approximately fifteen feet from the road. Kristen woke up as her father poured gasoline over her. He then lit a match and flicked it on her, setting her on fire. Kristen stumbled around, walking at least twelve feet before falling to her knees and then collapsing face down in the dirt. She died from smoke inhalation and severe burns over 98% of her body. Only the bottoms of her feet were not burned.

¶ 7 After watching Kristen fall to her knees, Grell returned to his car and drove around briefly before returning to see if the fire had gone out. He then returned to one of the convenience stores he previously visited to purchase more beer. He told the worker at the cash register that he had just seen some kids light a dog on fire in the nearby desert. He said, "I can't believe that kids would set a dog on fire[;] this is what the world is coming to when kids set dogs on fire."

¶ 8 For several hours, Grell drove around and drank beer. Just before midnight a Phoenix police officer pulled Grell over on suspicion of driving under the influence. Grell handed the officer a bottle of beer he had been drinking, and the officer eventually released Grell to walk home.

¶ 9 Grell apparently returned to his car after the officer left and continued driving because around two a.m., another Phoenix police officer stopped Grell. This time the officer arrested Grell and took him to the police station, where breath tests confirmed that he had a blood alcohol content of approximately.16. After processing Grell, the officer released him and a taxi cab took Grell to Third Avenue and Van Buren.

¶ 10 From there, Grell walked to the state capitol, where he used a call box to telephone the Capitol Police Department. Grell told the capitol police several times that he had killed his daughter and informed them where he left her body. After confirming that an infant's body was found where Grell indicated it would be, the police arrested him on suspicion of murder.

¶ 11 At the scene, police investigators found Kristen's badly burned and lifeless body, tire tracks that were consistent with the tires on the car Grell was driving that day, large and small shoe impressions in the dirt that were consistent with the shoes that Grell and Kristen were wearing, and a book of matches with one match missing. They also found some partially burned candy, a melted hair clip, and various articles of partially burned clothing. Police recovered a red plastic gas container that appeared new and still contained a small amount of gasoline. Grell's fingerprints were found on the gas can. Finally, investigators noted several areas of burnt soil and a strong smell of gasoline in the area.

¶ 12 Kristen's body was found face down, and her clothes, hair, and body were badly burned. An autopsy revealed that she suffered third and fourth degree burns over 98% of her body. According to the lead detective, the positioning of Kristen's body, the burn patterns on her clothes and body, the burn patterns on the ground near her body, and other evidence collected at the scene were all consistent with Kristen having had gasoline poured on her body and then being lit on fire. The autopsy revealed that Kristen's death resulted from thermal injuries and smoke inhalation.

¶ 13 Several months after his arrest, Grell signed a "Prisoner Media Waiver" informing him that "statements made to reporters, newspersons and other members of the media may be used against you in court." Grell then held a news conference at which he admitted killing his daughter. At the news conference, which was video taped, Grell stated:

We [he and Kristen] had gone to Mesa. Went to Mesa. I was going to see my sister's, my sister's house, but I decided not to. I decided to go to the store and get a few beers, and to go drinking, and drive around in the car. Took Kristen to McDonald's, um, then we just cruised around a little bit more. And I just, I didn't, I decided that I was going to go ahead and do it. I went to the gas station to get the stuff and drove around, trying to find a place where I could do it.

During the press conference, Grell also stated that Kristen woke up when he poured gasoline on her and she stood up when he lit the match and threw it on her.

¶ 14 Three weeks later Grell sent a letter to the prosecutor in which he stated, "I took my daughter's life away from her on December 2, 1999; in a very sickening way!" In the letter, Grell stated several times that he was guilty. Police investigators confirmed that the handwriting on the April 21 letter matched Grell's handwriting.

¶ 15 In consultation with his attorneys, Grell elected to avoid a jury trial and the parties submitted the case to the trial court based on stipulated facts. The court found Grell guilty of first degree murder. At the sentencing hearing, the court concluded that the State had proved beyond a reasonable doubt the existence of three aggravating factors: a prior conviction for a serious offense, A.R.S. § 13-703(F)(2) (Supp.2002); the heinous, cruel, or depraved manner of the murder, id. § 13-703(F)(6); and that the victim was less than fifteen years of age, id. § 13-703(F)(9). Finding no mitigating circumstances sufficiently substantial to call for leniency, the court sentenced Grell to death. Id. § 13-703(E).

TRIAL ISSUE

¶ 16 Grell raises only one trial issue on appeal. He argues that the definition of "premeditation" adopted by the legislature in 1998 renders Arizona's premeditated murder statute unconstitutional. See A.R.S. § 13-1101(1) (2001). Grell contends that the legislature eliminated any distinction between first and second degree murder when it added the phrase "proof of actual reflection is not required" to the definition of premeditation. Compare A.R.S. § 13-1104(A) (2001) (second degree murder) with A.R.S. § 13-1105(A)(1) (Supp.2002) (first degree murder).

¶ 17 As Grell points out, proof of actual reflection has long been required to prove first degree murder in Arizona. See Macias v. State, 36 Ariz. 140, 149-50, 283 P. 711, 715 (1929) (holding that first degree murder requires proof that "a plan to murder was formed after the matter had been made a subject of deliberation and reflection"); State v. Willoughby, 181 Ariz. 530, 539, 892 P.2d 1319, 1328 (1995) ("Premeditation is established by evidence of a plan to murder formed after deliberation and reflection."). But after the court of appeals explicitly required proof of reflection in State v. Ramirez, 190 Ariz. 65, 69, 945 P.2d 376, 380 (App.1997), the legislature reacted by amending the statute to say that "proof of actual reflection is not required."

¶ 18 Thus, Grell argues, if, as this court has previously held, premeditation can be proven solely by a passage of time "as instantaneous as successive thoughts of the mind," Macias, 36 Ariz. at 149-50, 283 P. at 715, then there can be no meaningful distinction between first and second degree murder. Accordingly, the first degree murder statute under which he was convicted is unconstitutionally vague.

¶ 19 We considered this issue in State v. Thompson, ___ Ariz. ___, 65 P.3d 420 (2003), and concluded that A.R.S. § 13-1105(A)(1) is not unconstitutionally vague because proof of reflection is required by the statute. Id. at ___ _ ___, ¶ 27, 65 P.3d at 425-26, ¶ 27. The legislature's intent in adding the phrase "proof of actual reflection is not required" to the definition of premeditation was to...