                     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).
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


                                            - 2 -
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.

                                             - 3 -
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.

                                            - 4 -
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.

                                          - 5 -
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


                                        - 6 -
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


                                              - 7 -
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.


                                    - 8 -
¶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


                                                  - 9 -
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


                                       - 10 -
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


                                            - 11 -
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’ in-

class 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.

                                   - 12 -
¶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


                                      - 13 -
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



                                    - 14 -
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


                                       - 15 -
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 peer-

reviewed article on mental retardation issues.


                                              - 16 -
¶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


                                        - 17 -
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


                                               - 18 -
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


                                       - 19 -
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



                                   - 20 -
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.

                                          - 21 -
__________________________________
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


                                    - 22 -
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


                                          - 23 -
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).



                                         __________________________________
                                         Scott Bales, Vice Chief Justice




                                        - 24 -
