SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-09-0199-AP

Appellee, )

) Maricopa County

v. ) Superior Court

) No. CR1999-095294

SHAWN RYAN GRELL, )

) O P I N I O N

Appellant. )

_________________________________ )

Appeal from the Superior Court in Maricopa County

The Honorable Teresa A. Sanders, Judge

SENTENCE REDUCED

________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix

By Kent E. Cattani, Chief Counsel,

Criminal Appeals/Capital Litigation

Amy Pignatella Cain, Tucson

Assistant Attorney General

Attorneys for State of Arizona

LAW OFFICE OF TREASURE VANDREUMEL, P.L.C. Phoenix

By Treasure L. VanDreumel

Attorney for Shawn Ryan Grell

________________________________________________________________

B E R C H, 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

1 For a more detailed statement of facts relating to the

underlying crime, see State v. Grell (Grell I), 205 Ariz. 57,

58-59 ¶¶ 3-15, 66 P.3d 1234, 1235-36 (2003), and State v. Grell

(Grell II), 212 Ariz. 516, 518 ¶¶ 3-4, 135 P.3d 696, 698 (2006).
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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

(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 (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
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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

2 Because the statutes have not materially changed during the

pendency of this case, we cite the current version, unless

otherwise noted.
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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.” 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,

3 The legislature amended this statute, changing “mental

retardation” to “intellectual disability.” See 2011 Ariz. Sess.

Laws, ch. 89, § 5 (1st Reg. Sess.). We use “mental retardation”

in this opinion because that is the term employed by the parties

and doctors in this case.
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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.

4 Those experts testified in the penalty phase of Grell’s

first trial in 2001. After our first remand of the case, the

trial court did not conduct an evidentiary hearing, but rather,

pursuant to the parties’ agreement, ruled on the mental

retardation issue in 2005 based on the record of the 2001

proceedings.
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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. See A.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
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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 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
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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.
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¶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 “mental handicap” because these

were merely educational diagnoses that might not have considered

adaptive skills. We are not persuaded. Mr. Krueger testified

that the educational evaluations were based on the criteria set

forth in the DSM, the manual used for clinical mental

retardation diagnoses. He stated that when educators of the

time used the term “mental disability,” it meant “mental

retardation.” Ms. Thiede concurred. Moreover, the school

records specifically address Grell’s adaptive skills. Ms.

Thiede and Ms. Smith both discussed elements of Grell’s behavior

that were relevant to “the effectiveness or degree to which

[Grell] meets the standards of personal independence and social

responsibility expected of the defendant’s age and cultural

group.” See A.R.S. § 13-753(K)(1). Grell presented evidence

corroborating the mental retardation conclusions in these school

reports and explaining why “high adaptive skills,” a phrase

relied upon by the State’s expert, was misleading when not

placed in context.

¶16 The school records reviewed by the trial court in 2005

appeared to suggest good adaptive skills, but when fully

explained in 2009 and properly understood, those records instead

establish that Grell has suffered from adaptive behavior
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deficits since he was a young child. These school records,

notably, were created in Grell’s youth, for an educational

purpose unrelated to these proceedings or any other litigation.

The teachers and social workers who relied on them had no motive

to fabricate or distort their observations or findings.

¶17 In addition to the new evidence regarding Grell’s

school records and grade school evaluations, other evidence has

changed significantly between 2005 and 2009. In 2009, Drs.

Globus, Wicks, and Scialli essentially repeated the opinions the

trial court considered in 2005. But at the 2009 hearing, the

defense presented testimony from two additional experts, both of

whom effectively rebutted the State’s evidence and persuasively

explained why Grell’s history indicates significant deficits in

adaptive skills.

¶18 In 2009, the defense called Dr. Mark Cunningham, a

board certified forensic and clinical psychologist and research

scientist with thirty years’ experience. Dr. Cunningham

reviewed Grell’s school and juvenile justice records to evaluate

his adaptive skills and concluded that Grell suffered severe

deficits in several categories relevant to assessing mental

retardation. He determined that Grell’s continuous behavioral

problems and poor social functioning were grounded in mental

retardation because they were consistent throughout Grell’s

childhood, whereas pure antisocial or personality disorders
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would have varied over time. Dr. Cunningham considered Grell’s

inability to control himself in unstructured situations and his

tendency to act more like children several years younger as

additional evidence of Grell’s poor adaptive skills. If Grell

had a mere conduct or personality disorder, Dr. Cunningham

reasoned, he would have committed acts that were simply against

the rules and deviant (like stealing lunch money), rather than

acting, as he did, in ways that were embarrassing or immature

(like throwing tantrums).

¶19 Dr. Cunningham concluded that Grell suffered severe

adaptive skill deficits, despite his ability to occasionally

demonstrate adaptive behavior in some areas. For example, Grell

created and maintained a false identity to avoid being

prosecuted as an adult, a behavior the trial court relied on in

2005 to show Grell’s adaptive capabilities. But Dr. Cunningham

explained that this ruse did not necessarily indicate strong

adaptive skills. He posed the question as whether a child at

Grell’s functional intelligence level (eight to eleven years

old) would be capable of creating and carrying on such a ruse;

and the answer was clearly “yes.”

¶20 Dr. Cunningham also testified that the Vineland test

relied upon by the trial court in 2005 was not properly

administered. Rather than asking Grell’s mother to answer

questions about her nine-year-old son’s behavior, which is the
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proper way of administering the test, Grell’s mother reportedly

was handed the test to fill out herself. This procedure likely

affected the validity of the test because the administrator is

required to adapt the questioning to probe for descriptions of

behavior in several categories. That would not have occurred if

Grell’s mother self-administered the test. Dr. Cunningham also

noted that the mother’s statements, and hence the results of the

test, were inconsistent with teachers’ and administrators’ inclass observations of Grell as a child, which showed him to be

impulsive, inattentive, and unable to communicate effectively.

Dr. Cunningham thus opined that the results did not reflect

Grell’s actual adaptive skills and that an accurate score would

have been much lower. The record also includes evidence that

Grell’s mother did not want her son to be labeled “mentally

retarded,” which may have biased her responses. We therefore

afford this test little weight.

5

5 Both the defense and prosecution conducted additional

adaptive skills tests after Grell committed the murder. The

defense conducted a second Vineland test and a Scale of

Independent Behavior, both of which showed severe deficits in

adaptive skills, but bias potentially infected these tests, and

the State effectively attacked the Vineland testing methodology.

The State conducted an adult version of the Vineland, which

showed that Grell had average adaptive skills for someone his

age, but the test was administered to members of the victim’s

family who had never met Grell before he turned eighteen and

might have harbored ill feelings toward him. Because the

results of each test are suspect, we afford them little weight

in our review.
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¶21 In the 2009 hearing, Grell also presented the testimony

of Dr. Denis Keyes, a well-known educational psychologist who

specializes in educating children with mental retardation. Dr.

Keyes has several decades of practical and academic experience

working in the field of mental retardation and was involved in

developing the definition of mental retardation adopted by the

DSM. Like Dr. Cunningham, Dr. Keyes conducted an adaptive

skills assessment and concluded that Grell’s “adaptive behavior

skills are very significantly underdeveloped, and strongly

support the finding that he is unable to adapt to normally

accepted adult social standards.” Dr. Keyes’ investigation

revealed that Grell’s family viewed Grell as “somewhat incapable

of caring for many of his own needs, and unable to make informed

decisions for his own welfare.” He concluded that Grell’s

record confirmed his adaptive deficits, as illustrated by his

lifelong inability “to conform his behavior to the expected

standards of his social and same aged peers.” He explained that

Grell’s impulsive behavior and constant acting out evidenced his

lack of adaptive skills because learning to confront difficult

or frustrating situations without reacting immediately is an

adaptive behavior; Grell’s long history of impulse control

problems shows that he never developed that ability. Dr. Keyes’

remaining conclusions were tied to either the Vineland test he

administered or his interviews with Grell’s family members, all
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of which we largely discount. See supra note 5. Although Dr.

Keyes relied in part on such information, his conclusions are

nonetheless telling:

Given the facts of Shawn’s low intellectual

functioning, his inability to learn from his mistakes,

his reduced capacity in communication, socialization

and self-help skills, and his significant history of

special education, followed by failure and dropping

out of school and, in the absence of significant

parental support and guidance, his subsequent serious

entanglement with the criminal justice system, it is

clear at this point that Shawn Grell is a person who

has mental retardation.

¶22 The State contends that Grell is not actually impulsive

or deficient in adaptive skills because he can “behave when he

wants to.” It points to instances when Grell acted

appropriately, albeit only for a short while, after being told

he did not have any more chances. The State also relies on

Grell’s ability to hold jobs for short periods, his relationship

with Kristen’s mother, his willingness to stop using drugs so

that he could see Kristen, and his extended good behavior during

this litigation. This evidence, the State claims, is consistent

with antisocial personality disorder, not adaptive behavior

deficits and mental retardation.

¶23 But Grell’s occasional ability to behave is not

conclusive of his adaptive skills. Dr. Keyes and several other

defense witnesses testified, without rebuttal by the State, that

maladaptive behavior disorders, including antisocial personality
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disorder, can coexist with mental retardation. Dr. Keyes

explained that clinicians often overlook this fact and

mistakenly attribute behavioral issues to personality disorders,

without considering that adaptive skill deficits might be the

underlying cause of the behavioral issues. Dr. Keyes also noted

that people may have inflated their assessment of Grell’s mental

abilities because Grell is a handsome man who does not fit the

physical stereotype of someone with mental retardation.

Furthermore, several witnesses testified that people with mental

retardation react positively to structured situations; they can

learn behaviors after considerable repetition. Thus, Grell

might have behaved for short periods because he was in highly

structured situations.

¶24 In addition to presenting affirmative evidence in 2009

of adaptive skill deficits, Grell convincingly rebutted the

State’s case in a way that he did not do in 2005. The State’s

sole mental retardation expert throughout these proceedings has

been Dr. Scialli, a board certified psychiatrist. He does not

diagnose, treat, or educate those with mental retardation. In

preparing for his testimony, he reviewed Grell’s educational and

correctional records and interviewed members of Grell’s family.

¶25 Aside from the childhood Vineland test administered to

Grell’s mother and the false identity incident that Dr.

Cunningham effectively discredited, see supra ¶ 20, Dr. Scialli
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relied on an adaptive skills test called the Minnesota

Multiphasic Personality Inventory-2 (MMPI-2) that was

administered to Grell after he committed the murder. The

diagnostic report for the test indicated that people with

Grell’s response pattern generally suffer from some form of

personality disorder. Based on his review, Dr. Scialli

diagnosed Grell with antisocial personality disorder, alcohol

intoxication, alcohol dependence, amphetamine abuse, cannabis

abuse, learning disorders, and attention deficit-hyperactivity

disorder (“ADHD”). But the report did not address mental

retardation as a possible additional diagnosis.

¶26 In rejecting Grell’s mental retardation claims in 2005,

the trial court was more persuaded by the 2001 testimony of Dr.

Scialli than by that of Drs. Globus and Wicks. Based on the

extensive additional evidence presented in 2009, however, we

find several reasons to reach a different conclusion.

¶27 First, in 2009, Dr. Scialli acknowledged that, as a

psychiatrist, he was not regularly involved in the clinical

diagnosis of mental retardation and was not qualified to

administer the tests commonly used to diagnose mental

retardation. And unlike Drs. Keyes and Cunningham, who have

both published extensively concerning mental retardation in

peer-reviewed journals, Dr. Scialli has never published a peerreviewed article on mental retardation issues.
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¶28 Second, in 2009, Dr. Scialli initially testified that

he “didn’t see any evidence” in Grell’s records that Grell’s

schools considered adaptive skills when diagnosing him with

mental retardation. But he later acknowledged that the records

include several notes specifically referring to Grell’s adaptive

skills and the Vineland test the school administered to gauge

those skills.

¶29 Third, Dr. Scialli testified that he focused on Grell’s

current functioning — not, as the statute requires, on

significant impairment that manifested itself “before the

defendant reached the age of eighteen,” A.R.S. § 13-753(K)(3) —

and some of Scialli’s conclusions depended on interviews with

people who knew Grell only after he reached adulthood.

¶30 Fourth, the MMPI-2 test upon which Dr. Scialli relied

was unreliable. The record suggests that Grell might not have

had adequate time or lacked the intellectual functioning to

comprehend the test. To overcome this deficit, the

administrator read the questions to Grell, even though subjects

are supposed to take the test on their own.

¶31 Finally, Dr. Scialli conceded that antisocial

personality disorder and mental retardation are not mutually

exclusive diagnoses. In other words, his opinion that Grell has

antisocial personality disorder, alcohol intoxication,

alcoholism, ADHD, and other conditions, is not inconsistent with
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Grell also having mental retardation. In sum, ample evidence in

the 2009 record causes us to question Dr. Scialli’s conclusions.

¶32 In contrast, the State did not question Dr.

Cunningham’s professional experience or undermine his analysis,

opinions, or credibility. Dr. Keyes, at times, appeared to act

as an advocate. We therefore find Dr. Cunningham’s opinions on

Grell’s adaptive behavior more persuasive, but nonetheless give

Dr. Keyes’ testimony some weight, given Dr. Keyes’ experience

and reputation in the mental retardation field.

¶33 Moreover, we find nothing in the school records or the

testimony of school employees that casts doubt on their

conclusions that Grell had mental retardation when the

administrators and teachers dealt with him as a child. Indeed,

the records reflect that Grell suffered deficits in several

categories that the State’s expert admitted were relevant to the

adaptive skills inquiry, including the ability to socialize with

peers and classmates, the ability to make friends, and the

ability to use the bathroom independently.

¶34 Grell’s extensive educational, medical, and criminal

history shows consistent observations and documentation of his

social and adaptive deficiencies since his early childhood.

Throughout his life, Grell threw tantrums, got into fights,

ditched school, ran away from home and treatment centers,

committed crimes, tormented young children and the elderly, and
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could not hold jobs. Those who interacted with Grell identified

him at a very young age as someone who had an intellectual

disability and described him as “deficient in the ability to

establish a normal degree of affection, empathy or bond with the

others,” as having “a significant degree of callousness

regarding the feelings of others,” and as “functioning very

immaturely and distrustfully,” with “very poor” overall adaptive

functioning. Such a mental health history, by itself, provides

strong evidence that Grell suffered a “significant impairment”

in the ability to “meet[] the standards of personal independence

and social responsibility expected” of him. A.R.S. § 13-

753(K)(1), (3).

¶35 The record also contains some indications of Grell’s

limited ability to adapt. Although this evidence makes our

decision difficult, a diagnosis of mental retardation, as

statutorily defined, does not require a complete absence of

adaptive skills. Viewed in its entirety, the record before us

demonstrates an individual with “significant impairment” in “the

effectiveness or degree to which [he] meets the standards of

personal independence and social responsibility expected of the

defendant’s age and cultural group.” Id. Grell has proved by a

preponderance of the evidence that he has a disorder involving

“significantly subaverage general intellectual functioning”

coupled with significant deficits in adaptive behavior that
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manifested before age eighteen, and thus that he has mental

retardation.

C. Propriety of the Death Sentence

¶36 In light of Grell’s mental retardation, our decision on

the propriety of the death sentence is controlled by the Supreme

Court’s opinion in Atkins, which unequivocally prohibits states

from executing defendants with mental retardation because to do

so would constitute cruel and unusual punishment in violation of

the Eighth Amendment. 536 U.S. at 321. As the Supreme Court

explained, such persons’ moral culpability is constitutionally

significantly reduced:

Mentally retarded persons frequently know the

difference between right and wrong and are competent

to stand trial. Because of their impairments,

however, by definition they have diminished capacities

to understand and process information, to communicate,

to abstract from mistakes and learn from experience,

to engage in logical reasoning, to control impulses,

and to understand the reactions of others. There is

no evidence that they are more likely to engage in

criminal conduct than others, but there is abundant

evidence that they often act on impulse rather than

pursuant to a premeditated plan, and that in group

settings they are followers rather than leaders.

Their deficiencies do not warrant an exemption from

criminal sanctions, but they do diminish their

personal culpability.

Id. at 318. The foregoing accurately describes Grell.

Certainly, at some level, Grell knew the difference between

right and wrong, but the record is replete with examples of his

inability, in keeping with his mental age, to understand and
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process information, to communicate effectively, to reason

abstractly and learn from mistakes or experiences, and to

control his actions.

III. CONCLUSION

¶37 We are fully aware of the horrific nature of this crime

and the devastation it has brought upon Kristen’s family. But

given the recognition under our Constitution that defendants

with mental retardation are less morally culpable for their

crimes, we conclude that under the Supreme Court’s ruling in

Atkins, Grell is ineligible for execution. We therefore vacate

the trial court’s death sentence and impose a sentence of

natural life in prison.

6

__________________________________

Rebecca White Berch, Chief Justice

CONCURRING:

__________________________________

Scott Bales, Vice Chief Justice

__________________________________

A. John Pelander, Justice

6 In light of this disposition, we do not list the issues

Grell raised on appeal to avoid preclusion.
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__________________________________

Robert M. Brutinel, Justice

__________________________________

Ann A. Scott Timmer, Justice*

*Pursuant to Article 6, Section 3 of the Arizona

Constitution, the Honorable Ann A. Scott Timmer, Judge of the

Arizona Court of Appeals, Division One, was designated to sit in

this matter. Since this case was argued, Judge Timmer was

appointed by Governor Janice K. Brewer as a Justice of the

Arizona Supreme Court.

B A L E S, Vice Chief Justice, Concurring

¶38 Applying independent review, the Court concludes that

Grell has established by a preponderance of the evidence that he

has mental retardation, supra ¶ 35, and therefore he cannot be

sentenced to death. Id. at ¶ 36. Because the federal

constitution does not allow states to execute defendants who

prove by a preponderance that they have mental retardation, see

Grell II, 212 Ariz. at 530 ¶ 70, 135 P.3d at 710 (2006) (Bales,

J., concurring in part and dissenting in part), I concur in the

Court’s opinion sentencing Grell to natural life in prison.

¶39 Two other issues merit brief comment. Arizona statutes

contemplate that the trial court will determine pretrial whether

a defendant has mental retardation (now “intellectual

disability”). See A.R.S. § 13-753. Here, the trial court ruled
- 23 -

in 2005, based on evidence presented in 2001, that Grell had not

shown mental retardation. At the end of the penalty phase in

2009, the trial court denied Grell’s motion to enter a judgment

finding that he has mental retardation, reasoning that it had no

procedural means to revisit the issue it had decided in 2005.

But as the Court notes, supra ¶ 26, “extensive additional

evidence” on the retardation issue was presented at the 2009

trial. Such evidence could have provided good cause for the

trial court to reconsider its pretrial determination. See Ariz.

R. Crim. P. 16.1(d) (impliedly permitting courts to reconsider

pretrial determinations upon finding of good cause).

¶40 Our independent review in this case makes it

unnecessary to address some potentially difficult issues in

applying A.R.S. § 13-753 to murders occurring after August 1,

2002. The statute contemplates that the trial court will apply

a clear and convincing standard of proof to the pretrial

screening determination on mental retardation. A.R.S. § 13-

753(G). If the trial court concludes that the defendant has not

met this burden, the defendant may present evidence of mental

retardation during the penalty phase. Id. § 13-753(F).

¶41 Section 13-753, originally enacted before the United

States Supreme Court decided Atkins, does not by its terms

require either the trial court or the jury to consider if a

defendant has shown, by a preponderance of the evidence, that he
- 24 -

has mental retardation as a bar to execution. Yet the Court’s

decision today recognizes that a finding of mental retardation

by a preponderance precludes a death sentence. See supra ¶¶ 35,

36. In cases not subject to independent review (i.e., those

involving murders committed after August 1, 2002), courts will

need to address how to assure that a fact finder (whether the

trial court or the jury) considers whether a defendant has

proved mental retardation by a preponderance standard. These

issues might, of course, also be subject to legislative action,

as Atkins affords states flexibility in identifying procedures

to implement the Constitution’s proscription on executing

defendants who have mental retardation. See 536 U.S. at 531;

Commonwealth v. Sanchez, 36 A.3d 24, 60-61 (Pa. 2011)

(discussing different approaches states have taken to

determination of mental retardation).

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Scott Bales, Vice Chief Justice