STATE v SHAWN RYAN GRELL

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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) SHAWN RYAN GRELL, ) ) Appellant. ) __________________________________) Arizona Supreme Court No. CR-01-0275-AP Maricopa County Superior Court No. CR 1999-095294 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Barbara M. Jarrett, Judge AFFIRMED IN PART; SENTENCE VACATED; REMANDED FOR RESENTENCING ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel, Capital Litigation Section Amy S. Pignatella Cain, Assistant Attorney General Attorneys for the State of Arizona Phoenix JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER By James R. Rummage, Deputy Public Defender Attorneys for Shawn Ryan Grell Phoenix Tucson ________________________________________________________________ B E R C H, Vice Chief Justice ¶1 Appellant Shawn Grell was convicted of first degree murder in 2000 following a bench trial on stipulated facts. After an aggravation and mitigation hearing, the judge sentenced Grell to death. While Grell prepared his direct appeal, the United States Supreme Court decided cases that held (1) that juries must find the aggravating factors that allow the imposition of a sentence of death, Ring v. Arizona (Ring II), 536 U.S. 584 (2002), and (2) that mentally retarded defendants may not be executed, Atkins v. Virginia, 536 U.S. 304 (2002). In addition to raising sentencing issues under Ring, Grell claimed on appeal that, under Atkins, his mental retardation should preclude reviewing a death Grell s in his sentence court trial for re-examine ordered the mental retardation, Atkins. sentence to applying case. harmless the error, the issue standards In lieu this of of court Grell s articulated in State v. Grell (Grell I), 205 Ariz. 57, 63, ¶ 41, 66 P.3d 1234, 1240 (2003). On February 2, 2005, the trial court held another hearing and issued its ruling finding no mental retardation. ¶2 For the appeal, this court ordered the parties to combine briefings on both the sentencing issues and the mental retardation issues. 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 affirm the trial court s finding that Grell did not prove mental retardation, but remand the case for jury sentencing. - 2 - I. ¶3 FACTS 1 On December 2, 1999, Shawn Grell picked up his two- year-old daughter, Kristen, from daycare. They drove around for several hours, during which time Grell bought a plastic gas can and gasoline. He then drove to a deserted area in Mesa, put his sleeping daughter on the ground, poured gasoline on her, and lit her on fire. She awoke and stumbled several feet while engulfed in flames before eventually succumbing to the smoke and flames. Grell drove to a nearby convenience store to buy beer. He told the clerk he had seen some kids set a dog on fire in a vacant lot. After driving around for several hours, Grell called the police and turned himself in at five o clock the next morning. He later held a press conference at which he admitted killing his daughter. ¶4 Grell was charged with first degree murder and child abuse. to the He waived a jury trial and instead the parties submitted trial attachments September judge to 2000, serve the a as twenty-page a judge basis narrative for with determining convicted Grell of forty-four guilt. first In degree murder, but acquitted him of child abuse. ¶5 Grell agreed to the admission of the documents at the 1 A more complete account of the crime appears in Grell I, 205 Ariz. at 58-59, ¶¶ 3-15, 66 P.3d at 1235-36. - 3 - sentencing hearing, but attempted to preserve his right to a jury trial on sentencing issues by the following language: This stipulation shall in no way constitute a waiver of any rights the defendant may have to have a jury empanelled to determine the existence or absence of any aggravating and or mitigating circumstances. that a jury be When Grell specifically requested empanelled for the sentencing proceeding, however, the motion was denied. A. Original Sentencing ¶6 The combined aggravation and penalty phase hearing held in June 2001 included testimony from mental health experts, law enforcement sister. officers, a burn injury expert, and Grell s The State asserted three statutory aggravating factors: that Grell had previously been convicted of a serious offense; that the crime was committed in an especially heinous, cruel, or depraved manner; and that the victim was younger than fifteen years of age. See A.R.S. § 13-703(F)(2), (F)(6), (F)(9) (1999). The trial court found all three. ¶7 The prior serious offense was a 1996 conviction for robbery. See A.R.S. § 13-703(H) (1999) (identifying robbery as a serious aggravator). offense for purposes of use as a death penalty That Kristen was younger than fifteen at the time of the crime was proven by a birth certificate showing her 1997 - 4 - birthdate, which established that she was two years old at the time of her death. ¶8 Citing the facts that Kristen was conscious when set on fire, that she had to have suffered immense physical pain, and that Grell should have foreseen the pain she would suffer, the court also found the crime especially cruel. In addition, while acknowledging that only a finding of cruelty was necessary to satisfy the § 13-703(F)(6) aggravating factor, the court also found the crime heinous and depraved. 2 The court cited the following factors in making these findings: (1) the crime was senseless; (2) the victim was helpless; (3) the victim was the defendant s own child; (4) the method of killing ensured that the victim would suffer unimaginable pain ; (5) the method ensured that the body would be disfigured; and (6) the defendant made comments to a convenience store clerk after the murder about seeing a dog set on fire. 3 The court stated that these 2 The heinous, cruel, or depraved aggravator is written in the disjunctive and the state need prove only one of the three conditions to trigger application of the aggravating circumstance. State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983). Heinousness and depravity are, however, frequently analyzed together as both involve the defendant s mental state. Id. 3 The trial court s Special Verdict does not explain the import of this factor, but we infer from the subsequent citation to Gretzler that the judge meant that the defendant relished his crime. See Gretzler, 135 Ariz. at 52, 659 P.2d at 11. - 5 - facts satisfied the test set forth in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983), and concluded that the manner of killing, in addition to being cruel, was also heinous and depraved. ¶9 In mitigation, Grell alleged the statutory mitigating circumstance of mental impairment, see A.R.S. § 13-703(G)(1), as well as non-statutory mitigators of mental retardation, learning disabilities, difficult childhood, and remorse. Much of the evidence at the hearing centered on Grell s claims of mental impairment, mental retardation, and a cognitive disorder caused by brain damage. ¶10 Drs. Globus and Wicks testified for the defense and Drs. Mayberg and Scialli testified for the State. On the issues of mental impairment and brain damage, Dr. Globus testified that he initially diagnosed Grell with brain damage before having a PET scan done and neuropsychological before having evaluation of Dr. Grell. Wicks Dr. do a Globus blind is not certified to read PET scans, and those who prepared the report for him did not testify, sentencing decision. facts noted by the court in its Dr. Mayberg, the State s neuropsychologist who is qualified to read PET scans, testified that Grell s PET scan showed no brain damage. found no evidence of a Dr. Scialli testified that he cognitive - 6 - disorder caused by brain damage, but instead diagnosed Grell as having only an antisocial personality disorder. ¶11 The trial court ultimately found no evidence that Grell suffered from brain damage. instead from an accepted Dr. anti-social Scialli s personality diagnosis disorder, that Grell symptoms credible The court suffered of which include acting impulsively and using poor judgment. ¶12 Drs. Globus and Wicks also testified regarding Grell s mental retardation, as did Dr. Scialli. The court acknowledged Grell s low IQ scores, ranging from 65 to 74, but weighted more heavily Dr. Scialli s testimony that Grell had adequate adaptive skills. 4 In addition, the trial court observed that no one before Drs. Globus and Wicks had ever diagnosed Grell as having mental retardation and that Grell had demonstrated good adaptive skills by maintaining a false identity in order to be charged as a juvenile after he was arrested for robbery in 1996 when he was twenty years old. 4 The court did not state its criteria for determining mental retardation, but the discussion of IQ scores and adaptive skills covers two of the three factors cited by the Supreme Court in Atkins and this court in Grell I as useful in determining the existence of mental retardation: low IQ, poor adaptive skills, and onset before age eighteen. The criteria are based on the Diagnostic Criteria for Mental Retardation, Diagnostic & Statistical Manual of Mental Disorders (4th ed. 1994) ( DSM-IV ) and are substantially consistent with the statutory definition in A.R.S. § 13-703.02(K)(2) (2002), which was enacted after Grell s sentencing. - 7 - ¶13 Finding no mitigation sufficiently substantial to call for leniency, the judge sentenced Grell to death. B. First Appeal ¶14 An automatic notice of appeal was filed. While the parties prepared for oral arguments, the United States Supreme Court handed down opinions in Atkins, 536 U.S. at 304, and Ring II, 536 U.S. at 584. capital cases pending This case was consolidated with other on direct appeal at the time for the purpose of deciding common Ring issues. State v. Ring (Ring III), 204 Ariz. 534, 65 P.3d 915 (2003). This court issued a decision in Grell I without considering the sentencing issues. 205 Ariz. at 60, ¶ 25, 66 P.3d at 1237. ¶15 this In Grell I, 205 Ariz. at 58, ¶ 2, 66 P.3d at 1235, court addressed Grell s trial issue and affirmed his conviction, but remanded the matter to the trial court for a reevaluation Atkins. of Grell s mental retardation claim in light of The trial court had evaluated the mental retardation evidence as a mitigating factor rather than as a complete bar to execution. judge should This court suggested that, on remand, the trial apply A.R.S. § 13-703.02 as a guide in future proceedings to ascertain the existence of mental retardation. 5 5 Section 13-703.02, enacted before Atkins issued but after Grell s sentencing, defines the pretrial process for evaluating mental retardation in capital cases. First, the trial judge - 8 - Id. at 64, ¶ 42, 66 P.3d at 1241. C. Remand for Mental Retardation Hearing ¶16 703.02, Attempting to follow the procedures in A.R.S. § 13the trial judge first suggested screening expert to test Grell s IQ. Grell to additional testing, the appointing a pre- Rather than subjecting State and the defense stipulated that Grell s IQ was less than 70 and that further IQ testing was unnecessary. ¶17 Before the mental retardation hearing, briefed and argued the issue of burden of proof. the parties The statute places the burden on the defendant to prove mental retardation by clear and convincing evidence. A.R.S. § 13-703.02(G). Grell argued, however, that because mental retardation serves as a constitutional bar to execution, the standard should be no appoints a pre-screening expert to administer an IQ test to the defendant. A.R.S. § 13-703.02(B). If the resulting score is 75 or below, the judge picks one expert nominated by each party, or one jointly nominated expert, to test the defendant again. A.R.S. § 13-703.02(D). If any test result is 70 or below, the court conducts a hearing at which the defendant must prove by clear and convincing evidence that he has significantly subaverage general intellectual functioning [an IQ of 70 or lower], existing concurrently with significant impairment in adaptive behavior, where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen. A.R.S. § 13-703.02(G), (K). If the court finds that the defendant s IQ is 65 or below, a rebuttable presumption of mental retardation arises. A.R.S. § 13-703.02(G). If the court does not find mental retardation, the defense may still argue the issue to the jury as a mitigating factor. A.R.S. § 13703.02(H). - 9 - higher than a preponderance of the evidence. claim, the trial court required Rejecting Grell s Grell to prove mental retardation by clear and convincing evidence. ¶18 During preparations for the hearing on remand, a new defense expert, Dr. Denis W. Keyes, interviewed Grell. The State requested that Grell also submit to examination by its new expert, Dr. Dan Martel. Before Dr. Keyes completed his report and before meeting with Dr. Martel, Grell told his attorneys he was not experts willing or completed to cooperate investigators. his report, any further Shortly which concludes with any thereafter, that Dr. Grell has of our Keyes mental retardation. ¶19 After receiving Grell s written refusal to be examined, the State moved to Preclude Defendant s Additional Mental Health Professional. The defense, which did not yet have Dr. Keyes report, did not respond to the motion. result of these circumstances, the trial court granted State s motion to preclude Dr. Keyes from testifying. receiving Dr. Keyes report, the defense filed As a a the After Motion to Reconsider, which was denied. ¶20 each Following the motion and Grell s refusal to cooperate, side determined that it had no additional evidence to present and would rely on the evidence presented at the June - 10 - 2001 hearing. The court held oral argument on December 7, 2004, at which each side argued from the same documents and the same testimony to the same judge as in the first hearing. Quoting extensively from the record and noting that it had previously found the State s experts more persuasive, the trial court found nothing to change its mind and concluded that Grell had failed to satisfy his burden of proving mental retardation by clear and convincing evidence. II. A. The Burden Retardation ¶21 of Grell s Proof major DISCUSSION and Standard argument on for this Proving appeal is Mental that the trial court used a flawed process in finding that he does not have mental retardation. process: lack of He raises three challenges to the First, the State should bear the burden of proving retardation to a jury beyond a reasonable doubt. Second, if the defendant must bear the burden of proof, the standard evidence; should the be no statutory higher than a requirement of evidence is unconstitutionally high. preponderance clear and of the convincing Third, the process should be bifurcated, with both a pretrial hearing before a judge to determine, under Atkins, whether mental retardation should bar the defendant s execution and, should the judge not find mental retardation, a jury component in - 11 - which the jury must find, beyond a reasonable doubt, that the defendant does not have mental retardation. 6 ¶22 Grell s challenges raise issues of constitutional law and statutory construction, which we review de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004). In analyzing statutes, however, we begin by assuming the statute is constitutional. State v. Casey, 205 Ariz. 359, 362, ¶ 11, 71 P.3d 351, 354 (2003). Imposing burden retardation 1. ¶23 on defendant to prove mental For the hearing to determine whether Grell has mental retardation, this court instructed the trial court to apply the procedures in A.R.S. § 13-703.02 insofar as is practical in the post-trial posture of this case. ¶ 42, 66 P.3d defendant . . . at the 1241. burden The of Grell I, 205 Ariz. at 64, statute proving places mental on retardation clear and convincing evidence in the pretrial hearing. § 13-703.02(G). rebuttable Because the If the presumption parties of here defendant s mental IQ is 65 retardation stipulated that the or A.R.S. lower, arises. Grell s by IQ a Id. falls between 65 and 70, the trial court accordingly placed the burden 6 The statute currently provides for a bifurcated process, see supra note 5, but the jury hears the mental retardation evidence only as a mitigating factor. See A.R.S. § 13703.02(H). - 12 - on him to prove by clear and convincing evidence that mental retardation renders him ineligible for execution. Grell argues that if the defendant must bear the burden at all, the standard should be to prove retardation by no more than a preponderance of the evidence. ¶24 This issue reaches our court because in Atkins, the Supreme Court declined to specify the procedures that states should use to identify mentally retarded individuals, deferring to the states to develop appropriate procedures. U.S. at 317. lack of Atkins, 536 The Court did so in part in acknowledgement of the consensus regarding which defendants have mental retardation: To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. . . . Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to insanity, we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences. Id. at 405, 416-417, 106 S.Ct. 2595. Atkins, 536 U.S. at 317. Although left to the states, the procedures developed must comport with the Constitution. ¶25 The Supreme Court has confirmed that states may regulate the procedures under which [their] laws are carried - 13 - out, including the burden of producing evidence and the burden of persuasion, and [their] decision[s] in this regard [are] not subject to proscription under the Due Process Clause unless [they] offend[] some principle of justice so rooted in the traditions and fundamental. conscience of our people as to be ranked Patterson v. New York, 432 U.S. 197, 201-02 (1977) (quoting Speiser v. Randall, 353 U.S. 513, 523 (1958)); see also Medina v. California, 505 U.S. 437, 445 (1992) (calling Patterson the proper analytical approach in evaluating burdens of proof). Grell claims that imposing the burden on a defendant to prove mental retardation by clear and convincing evidence does offend deeply rooted principles. ¶26 Grell initially argues that the burden on the issue of mental retardation should not fall on the defendant at all, but rather should be borne by the State. We disagree that the Constitution requires the prosecution to bear this burden. The Supreme the Court has held that a state defendant prove affirmative defenses. at 206 (requiring disturbance); (requiring the the Martin defendant v. defendant Ohio, to may that E.g., Patterson, 432 U.S. to prove 480 U.S. prove require self extreme 228, defense). emotional 236 (1987) Proof of mental retardation is like proof of an affirmative defense in that it serves to relieve or mitigate a defendant s criminal - 14 - responsibility, and as with affirmative defenses, the evidence of retardation will lie largely within the possession and access the control of the defendant. ¶27 Because the defendant has superior to evidence to prove his mental condition, it is not inappropriate to place the burden on him to do so. See Medina, 505 U.S. at 455 (O Connor, J., concurring); cf. Patterson, 432 U.S. at 206 (to same effect). A critical component retardation is onset before age eighteen. of proof of mental The defendant has better information regarding his condition and superior access to friends and family who knew him before he turned eighteen. Moreover, a defendant has significant motivation to attempt to score poorly on an IQ test, a low score on which triggers a claim of mental retardation. evidence lies within the See A.R.S. § 13-703.02(B). defendant s control and may Such prove difficult for the state to rebut. ¶28 New Jersey is the only state, as of this writing, to place the burden of disproving mental retardation on the state. State v. Jimenez, 880 A.2d 468, 484 (N.J. Super. Ct. App. Div. 2005). It did so because state law developed under the Ring/Apprendi line of cases treats certain statutory capital triggers like aggravating factors that the state must prove to a jury beyond a reasonable doubt. - 15 - Id. at 482-84 (discussing the implications of Ring II, 536 U.S. at 584, and Apprendi v. New Jersey, 530 U.S. 466 (2000)). mental which retardation under reasonable New was essentially Jersey doubt. The court in Jimenez held that 880 law the A.2d at such state 484. a capital must prove Because, trigger, beyond however, a the absence of mental retardation is neither an aggravating factor nor an element of the capital offense under Arizona law, the rationale supporting the result in Jimenez does not apply here. ¶29 We find no constitutional bar to imposing the burden of proving mental retardation on the defendant. 2. ¶30 Imposition standard of the clear and convincing evidence Citing Cooper v. Oklahoma, 517 U.S. 348 (1996), Grell asserts the unconstitutionality of requiring him to prove mental retardation by clear and convincing evidence. In Cooper, the Court, having already declared that the defendant must bear the burden of proving competency to stand trial, id. at 355, held that the defendant may not be forced to prove his competency by clear and convincing evidence. Id. at 369. The Court evaluated the right not to be tried while incompetent and weighed the impact of its loss on the defendant to determine the appropriate standard of proof. the right not principle of to Id. at 354, 364. be justice tried if [so] The Court observed that incompetent rooted - 16 - in is the a fundamental traditions and conscience of our people that its violation threatens . . . the basic fairness of the trial itself. ¶31 Furthermore, the Court Id. at 364. reasoned, the heightened standard of proof affected only those defendants who could prove they were incompetent, convincing affected evidence. those but Id. could at defendants not do 366-67. only so The by clear higher opportunity and standard to contest competency, creating a grave risk of violating their right not to be tried while incompetent. the defendants interest Id. The Court concluded that outweighed the government s interest in trying a probably incompetent defendant. lesser Id. The Court also noted that forty-six other state jurisdictions used a lower standard of proof, showing consensus that Oklahoma s higher standard was unnecessary to serve the state s needs and inappropriate in light of the importance of the right. 361-62. Id. at The Court therefore held that due process limits the burden on the defendant to prove competency to stand trial by a standard no higher than preponderance of the evidence. Id. at 368-69. ¶32 assess As was the Court in Cooper, we have been asked to evidence the statutory standard in imposition a of situation standard would be permissible. a in clear which and a convincing preponderance Although the right not to be - 17 - executed if mentally retarded is of recent vintage, it like the right not to stand trial if incompetent is a constitutional right based on modern consensus and historical views regarding the propriety of executing those who may be less morally capacity. culpable because of their See Atkins, 536 U.S. at 320-21. reduced mental We also note that, following Atkins, all but one jurisdiction that has chosen a burden has chosen preponderance of the evidence. 7 We might have done so as well, were there no Arizona statute already in place. The question before us, however, is whether the standard chosen by the legislature to protect admittedly important state interests can withstand constitutional scrutiny. 7 The following statutes, passed in 2003 after Atkins, impose a preponderance standard: Cal. Penal Code § 1369 (West, Westlaw through 2006 Sess.); Idaho Code Ann. § 19-2515A (Westlaw through 2005 Sess.); 725 Ill. Comp. Stat. Ann. 5/114-15 (West, Westlaw through 2005 Sess.); Nev. Rev. Stat. Ann. § 174.098 (West, Westlaw through 2005 Sess.); Utah Code Ann. § 77-15a-104 (West, Westlaw through 2005 2d Sess.); Va. Code Ann. § 19.2-264.3:1.1 (West, Westlaw through 2005 Sess.). The following cases, from jurisdictions in which no statute sets a burden, set preponderance as the appropriate standard: State v. Williams, 831 So. 2d 835, 860 (La. 2002); Russell v. State, 849 So. 2d 95, 148 (Miss. 2003); State v. Lott, 779 N.E.2d 1011, 1015 (Ohio 2002); Commonwealth v. Mitchell, 839 A.2d 202, 211 n.8 (Pa. 2003); Franklin v. Maynard, 588 S.E.2d 604, 606 (S.C. 2003); Ex parte Briseno, 135 S.W.3d 1, 12 (Tex. Crim. App. 2004). Delaware, which passed its statute within a month of Atkins, is the lone exception. Del. Code Ann. Tit. 11, § 4209 (West, Westlaw through 2005 Sess.) (imposing a clear and convincing burden). Of the eighteen states that had statutes in place before Atkins, thirteen states use the preponderance standard. See Atkins, 536 U.S. at 314-15 & nn.12-15. - 18 - ¶33 The statutory scheme enacted by the Arizona legislature does not merely prohibit execution of the mentally retarded. It provides a detailed, bifurcated process that requires a pretrial hearing at which a defendant may attempt to show, by clear and convincing evidence, that he has mental retardation; if he fails to make that showing, the defendant may still present mental retardation mitigation of his sentence. process gives the defendant evidence to A.R.S. § 13-703.02. with an IQ of 75 the jury in The statutory or below the opportunity to be examined by at least two psychological experts to determine his IQ. A.R.S. § 13-703.02(B), (D). Those with at least one full-scale IQ test result of 70 or below proceed for further evaluation and an evidentiary hearing. A.R.S. § 13- 703.02(F), (G). the burden prove to Although mental the defendant retardation, the bears statute ultimate creates a rebuttable presumption of mental retardation if the defendant s IQ is 65 or below. ¶34 A.R.S. § 13-703.02(G). 8 The Arizona statute sets up a process similar to that 8 By selecting an IQ of 65 as the number that gives rise to the presumption of retardation which presumption assumes the existence of significantly subaverage general intellectual functioning, concurrent significant impairment in adaptive behavior, and onset before age eighteen, A.R.S. § 13703.02(K)(2) the legislature has given added protection to those defendants whom the DSM-IV would define as having mild mental retardation. DSM-IV 42-43. - 19 - used in Colorado and Indiana, and courts in both those states have evaluated the constitutionality of requiring a defendant to prove mental retardation by clear and convincing evidence. 9 Compare People v. Vasquez, 84 P.3d 1019 (Colo. 2004) (approving use of clear and convincing standard in a pretrial hearing), with Pruitt v. State, 834 N.E.2d 90 (Ind. 2005) (finding a clear and convincing standard unconstitutional). Grell and our dissenting colleague rely heavily on analysis from Cooper that also formed the basis of the Pruitt opinion. They argue that the definitive inquiry is the assessment of the relative risks faced by the parties: the defendant s risk of death compared to the state s minimal interest in executing a defendant who will otherwise go to prison for life. 9 A Georgia statute requires the defendant to establish mental retardation by proof beyond a reasonable doubt, a burden that the Georgia Supreme Court has twice upheld. See Head v. Hill, 587 S.E.2d 613, 621 (Ga. 2003) (post-Atkins case analyzing Georgia Code Annotated § 17-7-131 (West, Westlaw through 2005 Special Sess.)); Mosher v. State, 491 S.E.2d 348 (Ga. 1997) (pre-Atkins case). Because the procedure under the Georgia statute differs substantially from that under the Arizona statute, however, we do not rely on the analysis in Head and Mosher. In those cases, the Georgia Supreme Court found the twin requirements that the defendant need only demonstrate incompetence to stand trial by a preponderance of the evidence and may prove mental retardation to a jury by proof beyond a reasonable doubt sufficient to safeguard mentally retarded persons against the special risks of trial to which they are subject. Head, 587 S.E.2d at 622. Arizona s safeguards are, if anything, more protective of the rights of the defendant than are Georgia s. - 20 - ¶35 With respect to statutes like those in Arizona, Indiana, and Colorado, however, Grell overstates his case. As the Colorado Supreme Court stressed in Vasquez, the defendant s risk at a pretrial hearing is not death, but a capital trial. 10 84 P.3d at 1023. By creating a pretrial process, the legislature provided a way for mentally retarded defendants to avoid the burden of a capital trial and the risk of imposition of the capital penalty. retardation present at mental the All defendants who do not prove mental pretrial retardation hearing evidence retain to the the ability jury under preponderance standard in the penalty phase of the trial. to a That opportunity reduces the ultimate risk they face from an adverse determination in the pretrial mental retardation hearing. ¶36 argument The court that retardation the evidence in Pruitt acknowledged defendant s in ability mitigation to but to the rejected argue jury the mental under a preponderance of the evidence standard adequately safeguards the defendant s rights. It reasoned that [m]entally retarded defendants in the aggregate face a special risk of wrongful execution. 834 N.E.2d at 103 (quoting Atkins, 536 U.S. at 10 Grell s risk at this post-trial proceeding was of course different, but the outcome is functionally the same because he retains the right to present the evidence of mental retardation to the jury in mitigation. See infra ¶¶ 64-67. - 21 - 321). Although the acknowledged risk that the Pruitt court identifies may justify barring the execution of the mentally retarded, it does not procedure to ascertain statutory procedure, suggest mental these the need for retardation. defendants about any particular Under Arizona s whom there is consensus against execution will be screened out at the pretrial stage. Given that fact, we cannot say that those unable to establish retardation by clear and convincing evidence face such a severe risk at sentencing that they may not constitutionally be put through the capital trial process. ¶37 Although the Court in Atkins clearly announced that states may not execute the mentally retarded, it recognized that people may disagree over which individuals in fact have mental retardation. 536 U.S. at 317. Before Atkins, states had already begun to develop their own procedures, and had drawn in different places the line for retardation that would bar execution. establishing the mental Knowing this, the Court explicitly left the procedure for determining mental retardation to the states. about whom Id. there is State procedures must ensure that those national consensus are protected from execution, but left states otherwise free to craft their laws for determining which defendants meet the consensus standard. By providing differing procedures based on the defendant s IQ, - 22 - Arizona law reflects this concept. Those with IQ scores of 65 or below face a comparatively lower bar, while those whose IQ scores suggest greater intelligence must go to greater lengths to prove their mental retardation. The legislature placed a heavier burden on those who do not fall within the group about whom there is national consensus regarding their right not to be executed. removes The procedure occurs early in the capital process and defendants found to have mental retardation from exposure to a capital trial and hence to a sentence of death. See A.R.S. § 13-703.02(C), (F), (G). The application of Arizona s tiered procedure does not deprive Grell of a right rooted in fundamental justice. ¶38 Finally, in response to the reliance of the defendant and our dissenting colleague on the analysis in Cooper, 517 U.S. at 348, we note the significant differences between the right not to executed be if tried while mentally incompetent retarded. and the First, a right not to defendant be found incompetent to stand trial is protected from having to submit to trial on any charges unless he is restored to competency. id. See A defendant deemed to have mental retardation, however, is not shielded from trial. See Atkins, 536 U.S. at 318. Despite the risks that a mentally retarded defendant might not present well to a jury, such a defendant can be tried, found guilty, and - 23 - sentenced to any statutory criminal penalty other than death. This legal distinction suggests that mental retardation differs constitutionally from incompetence to stand trial. ¶39 The second malingering. distinction relates to the risk of A defendant who successfully feigns incompetence to stand trial will not have to submit to trial at that time. Generally, however, such a defendant is sent to a mental health facility for competency. treatment and further examination See Ariz. R. Crim. P. 11.5(b)(2)(i). of his Most often, the defendant is either restored to competency or discovered to be malingering. defendant is In subject the to event trial of and either occurrence, punishment, including the the death penalty, if appropriate. On the other hand, once a court determines has that a defendant mental retardation, that defendant may never suffer the punishment of execution, even if he is later discovered to have been malingering. These concerns support the heightened standard that the legislature has imposed to protect the interests of Arizona citizens. ¶40 A retardation better comparison as bar a to lies between execution incompetence as a bar to execution. and claims claims of mental of mental The defendant asserting the latter claim is also subject to a clear and convincing evidence burden of proof. See A.R.S. § 13-4022(F) (clear and convincing - 24 - burden of proof); Ford v. Wainwright, 477 U.S. 399, 410 (1986) (holding that inflicting insane ). the the Eighth penalty Amendment of death prohibits upon a states prisoner who from is We are aware of no case finding it violative of the Constitution to require a defendant to prove incompetence to be executed by clear and convincing evidence. ¶41 In sum, we conclude that requiring the defendant to prove mental retardation by clear and convincing evidence in the initial retardation hearing does not violate constitutional standards. 3. Jury determination of mental retardation ¶42 beyond Grell a argues reasonable that, doubt under that Ring, the the defendant jury must does find not have mental retardation before it may impose a sentence of death. Furthermore, he argues, the process should be bifurcated: a judge should make a preliminary finding on mental retardation, and if the judge finds the defendant death-eligible, the state still must prove a defendant s lack of mental retardation beyond a reasonable doubt to the jury. ¶43 Ring and Apprendi require that a jury find all functional elements of a crime and all non-admitted facts except prior convictions that presumptive sentence. increase the sentence above See Apprendi, 530 U.S. at 489. - 25 - the Although mental retardation does indeed involve fact-finding, it is not the functional equivalent of an element of the crime. It has nothing to do with the acts that make up the crime itself or the defendant s mental state while committing the crime, facts the state traditionally must prove. As a result, Ring does not require that a jury find the absence of mental retardation. See Arbelaez v. State, 898 So. 2d 25, 43 (Fla. 2005); Ex parte Briseno, 135 S.W.3d 1, 10 (Tex. Crim. App. 2004); Winston v. Commonwealth, 604 S.E.2d 21, 50 (Va. 2004). ¶44 Nor is the absence of increases the available penalty. n.16; see (2005). also The United finding States that a retardation a fact that See Apprendi, 530 U.S. at 490 v. Booker, defendant 543 does U.S. not 220, have 244 mental retardation neither expos[es] the defendant to a deprivation of liberty greater than that authorized by the verdict according to statute, nor . . . impos[es] upon the defendant a greater stigma than that accompanying the jury verdict alone. Bowling v. Commonwealth, 163 S.W.3d 361, 379 (Ky. 2005); see also Head v. Hill, 587 S.E.2d 613, 619-20 (Ga. 2003); Russell v. State, 849 So. 2d 95, 147-48 (Miss. 2003); State v. Flores, 93 P.3d 1264, 1267 (N.M. 2004); State v. Laney, 627 S.E.2d 726, 731 (S.C. 2006); Howell v. State, 151 S.W.3d 450, 467 (Tenn. 2004). Thus nothing in the Apprendi line of cases requires that a jury find - 26 - the absence of mental retardation beyond a reasonable doubt. ¶45 The Supreme Court itself has signaled that a jury need not decide the issue of mental retardation. When the Ninth Circuit suspended federal habeas proceedings in Schriro v. Smith and ordered a state jury trial on the issue of mental retardation, the Supreme Court summarily reversed the decision, implicitly rejecting the conclusion that Atkins requires a jury trial. 126 S. Ct. 7, 9 (2005) (per curiam). The defendant in Schriro had argued that he suffered from mental retardation and could not be executed. Id. at 8. Observing that Arizona and many states had adopted procedures for adjudicating the mental retardation might, in question, their the Court application, said, be While subject to those measures constitutional challenge, Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition. Id. at 9. Although we hesitate to read too much into the summary reversal, we draw from it a suggestion that a jury trial is not required. ¶46 Grell also compares the mental retardation finding to Enmund/Tison findings, arguing that both are findings of fact that should be made by the jury beyond a reasonable doubt. See Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S. 782 (1982). The analysis fails for two reasons. - 27 - First, the Supreme Court has held that Enmund/Tison findings, that a defendant actually killed or intended to kill, need not be made by a jury. See Cabana v. Bullock, 474 U.S. 376, 385-86 (1986), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497, 503 n.7 findings (1987). serve The to Court s disqualify reasoning an that otherwise Enmund/Tison seemingly death- eligible defendant from death suggests that that part of the opinion will survive Apprendi, because the rather than aggravate a potential sentence. findings mitigate Id.; see also Ring III, 204 Ariz. at 564, ¶ 100, 65 P.3d at 945 (concluding that Cabana survives Apprendi because it involves an Eighth Amendment proportionality analysis, traditionally done by a trial judge). Similarly, mental retardation serves to exclude a defendant from eligibility for the death penalty; its absence does not render an otherwise ineligible defendant eligible for the death penalty. ¶47 Second, Enmund/Tison findings lend themselves more logically to proof beyond a reasonable doubt than does proof of mental retardation. Enmund/Tison findings are based on evidence of participation in the crime and intent. Mental retardation, on the other hand, requires evaluation of the defendant s past and present mental functioning, using documentation and evidence largely within the control of the defendant. - 28 - Placing the burden on the prosecution to prove lack of retardation beyond a reasonable doubt would require it to prove a negative against a party with a motive to misrepresent his mental health and his past. The burden on the prosecution would be almost impossibly high. ¶48 Grell argues not only that the jury should hear the mental retardation evidence in mitigation, but also that it should decide whether mental retardation should serve as a bar to execution following an initial determination by the trial judge on that issue. Because Atkins left the procedure for determining mental retardation to the states, such a procedure would not be prohibited; but neither is it required. the statute already requires that both the judge Indeed, and jury evaluate mental retardation before a sentence of death may be imposed. The judge hears mental retardation evidence as a legal bar to execution and the jury hears it for mitigation purposes. ¶49 only Grell acknowledges that having the jury serve as the arbiter of mental retardation is not wise. The difficulties a mentally retarded person may have in testifying, communicating, and expressing remorse may negatively influence the jury. That factor formed an explicit basis of the Supreme Court s prohibition on execution of the mentally retarded. Atkins, 536 U.S. at 320-21. See But because the statute requires an - 29 - initial judicial determination, Grell s concern is ameliorated. The trial court did not err in determining that a jury need not determine mental retardation as a bar to execution. B. Preclusion of Testimony from Defense Expert Dr. Keyes ¶50 Defense counsel protests the exclusion of his third mental Grell s health expert refusal health expert. to as an unnecessarily cooperate with the harsh State s penalty third mental Whether to preclude . . . a witness s testimony lies within the discretion of the trial court. Ariz. at 457, ¶ 135, 94 P.3d at 1152. Moody, 208 We will not reverse a sanction unless the trial court has abused its discretion. ¶51 for Id. The State moved to preclude Dr. Keyes from testifying about Grell s adaptive abilities after Grell cooperate with the State s new mental health expert. refused to Relying on State v. Druke, 143 Ariz. 314, 693 P.2d 969 (App. 1984), and State v. Schackart, 175 Ariz. 494, 858 P.2d 639 (1993), the trial court granted the State s unopposed motion. Concluding that it would be unfair to the State to allow the new defense expert when the State s new expert could not examine Grell, the court also denied the defense Motion to Reconsider, filed after Dr. Keyes filed a report concluding that Grell has mental retardation. ¶52 Defense counsel argues - 30 - that Druke, Schackart, and cases relating to insanity experts should not control Grell s case because impulsive mental retardation behavior. Mental exist before age eighteen. differs retardation, from by insanity definition, or must Grell argues that his current mental condition is therefore of only limited relevance. The State s expert, Dr. Scialli, stated as much in his testimony. Grell also emphasizes the difference between requiring the State to face a defense expert with no expert of its own, and having it face three defense experts with two experts of its own. latter situation, he argues, does not prejudice the The State s case. ¶53 While it may be true that an expert could have evaluated Grell s adaptive skills without interviewing him, the controlling current statute impairment 703.02(K). defines in mental adaptive Assessments based defendant are thus persuasive. retardation ability. on See recent as including A.R.S. interviews § 13- of the Accordingly, the trial judge has discretion to preclude mental health experts as a sanction for the defendant s testing. refusal to cooperate with interviews and Phillips v. Araneta, 208 Ariz. 280, 285, ¶ 15, 93 P.3d 480, 485 (2004). heavily in a ability to rebut Although such a sanction weighs especially capital Dr. case, Keyes faced with assessment - 31 - the State s reduced of Grell s current functioning, the judge did not abuse her discretion by precluding Dr. Keyes testimony. C. Denial of Motion to Strike Testimony of Dr. Scialli ¶54 The defense argues that Dr. Scialli is not a qualified expert under A.R.S. § 13-703.02, the pretrial screening statute the trial court was attempting to follow, and his testimony should therefore have been precluded. ¶55 Whether a statute applies in a particular situation is a question of law, which we review de novo. Schoneberger v. Oelze, 208 Ariz. 591, 594, ¶ 12, 96 P.3d 1078, 1081 (App. 2004). We review the decision to admit or exclude evidence for abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49, ¶ 29, 97 P.3d 865, 874 (2004). ¶56 expert Section as a 13-703.02(K)(3) psychologist defines licensed a pursuant psychological to title 32, chapter 19.1 with at least two years experience in the testing, evaluation and diagnosis of mental retardation. 11 is a psychiatrist, not a psychologist. 11 Dr. Scialli The record shows that he Section 32-2071 requires a doctoral degree from an accredited program in any of several areas of psychology. The program must include hundreds of hours of supervised training. A.R.S. § 32-2071(D). Among the required subjects of study are interviewing and the administration[,] scoring and interpretation of psychological test batteries for the diagnosis of cognitive abilities and personality functioning. A.R.S. § 32-2071(A)(4)(g). Psychiatrists have medical training and receive an M.D. rather than a Ph.D. - 32 - has had training in mental retardation for a child psychiatry fellowship, has been a consultant with several government agencies, has evaluated and consulted on children with mental retardation acting for medical Child Protective director for Services, the and Division of has been the Developmental Disabilities, the agency responsible for the care of mentally retarded children and adults. ¶57 This court in Grell I acknowledged that A.R.S. § 13- 703.02 should be applied to the hearing on remand only insofar as is practical. The trial court reasonably concluded that it was not practicable to apply the statute on this issue. The State hired Dr. Scialli before it could possibly have known the yet-unpassed experts. statute s requirements for qualifications of In addition, Dr. Scialli appears to be qualified to diagnose and discuss retardation issues. Indeed, the defense relies on his testimony to support its own points about the diagnosis of retardation. And precluding Dr. Scialli s testimony would have left the State without an expert on mental retardation. His qualifications in this instance bear on the weight of his testimony, not its admissibility. The court did not abuse its discretion by allowing Dr. Scialli to testify. D. ¶58 Error in Finding Retardation The defense that asserts Grell that - 33 - Did the Not trial Prove court Mental erred in concluding that Grell does not have requests that we review that ruling. mental retardation and The decision was based largely on expert testimony; the trial court determined that the State s expert was more credible. The trial judge has broad discretion in determining the weight and credibility given to mental health evidence. ¶ 64, 969 P.2d 1168, State v. Doerr, 193 Ariz. 56, 69, 1181 (1998). We defer to the trial court s factual findings that are supported by the record and not clearly erroneous. State v. Rosengren, 199 Ariz. 112, 116, ¶ 9, 14 P.3d 303, 307 (App. 2000). ¶59 Because the parties stipulated that Grell had a low IQ before age eighteen, the only issue in the hearing on remand was his adaptive functioning. Under Arizona law, the adaptive functioning component of a mental retardation diagnosis requires significant impairment in 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. § 13-703.02(K)(1), (K)(2). ¶60 Defense juvenile detention academic and counsel social records relied to primarily highlight behavior. He argued on school examples that of school and poor and detention workers did not diagnose students based on the DSM- - 34 - IV, 12 and thus the fact that no one had diagnosed Grell as having mental retardation condition. did not establish the absence of that He urged the court to find deficits in the areas listed in the DSM-IV. ¶61 The State countered with three main themes: no doctor before defense expert Dr. Globus had ever diagnosed Grell as having mental retardation; behaving badly does not necessarily indicate adaptive deficits; and Grell can behave himself when he wants to do so. The State relied on the Vineland Scale as the only test administered to Grell as a youth that would reveal retardation. his The score on that scale was low-average, assessing intelligence as being only chronological age at the time. a year younger than his After moving to Arizona, five psychiatric reports all showed Grell to have a personality or conduct disorder, but none indicated mental retardation. Several school documents literally say that Grell demonstrated good adaptive skills. The State also highlighted a ruse Grell concocted about his life following an arrest for robbery in 1996. Although he was twenty at the time, Grell claimed to be a juvenile 12 named Michael Prentice and described a background The DSM-IV instructs that poor adaptive skills exist when there are deficits in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. - 35 - different from his own in a number of respects. Grell maintained the ruse for more than six months through repeated contacts with the justice system. ¶62 The defense claims to have clearly shown that Grell has deficits in two of the eleven areas listed in the DSM-IV and therefore has mental retardation. The DSM-IV definition of mental retardation, however, while similar in overall meaning, is not the same as the statutory definition. 703.02(K). See A.R.S. § 13- The statute requires an overall assessment of the defendant s ability to meet society s expectations of him. It does not require a finding of mental retardation based solely on proof of specific deficits or deficits in only two areas. ¶63 Reasonable minds may differ as to how to interpret the evidence presented. The evidence does, however, support a finding that Grell was able to function at a level higher than that of significant impairment. The trial judge s conclusion was reasonably supported by evidence. clearly err in finding that Grell The trial court did not failed to prove mental retardation by clear and convincing evidence. E. ¶64 Entitlement to Jury Sentencing Grell argues that he is entitled to jury sentencing by the terms of his trial-by-submission agreement. He asserts that he agreed to a trial by submission in exchange for preserving - 36 - his claim that the United States Constitution entitled him to a jury determination sentencing states: of phase. aggravation The cover or mitigation statement of the at the stipulation This stipulation shall in no way constitute a waiver of any rights the defendant may have to have a jury empanelled to determine the existence or absence of any aggravating and or mitigating circumstances. ¶65 The State acknowledges that Grell attempted preserve his right to a jury trial for sentencing. to It argues, however, that Grell preserved only any right [he] may have to a jury sentencing, not an absolute right to such a proceeding. Under Ring, the State thus maintains, Grell has a right to a jury sentencing only if the judicial sentencing was not harmless error. ¶66 While sentencing that may provision, be one Grell way to clearly interpret believed the jury that the stipulation would entitle him to a jury trial on aggravating facts if the Ring challenge was successful. When the parties signed the agreement in September 2000, Apprendi had just been decided. Its reasoning suggested that sentencing system was unconstitutional. thus not Moreover, a meaningless because Grell reservation admitted - 37 - Arizona s judge- Grell s stipulation was of the a act pipe-dream of right. killing his daughter, the sentencing hearing held increased significance as his only chance to avoid a sentence of death. He waived his right to a jury trial on the guilt-phase issues at least in part based on assurances that he would retain his right to be sentenced by a jury. ¶67 We find that the agreement entitles Grell to a jury sentencing. We therefore vacate the sentence of death and remand for a sentencing proceeding in accordance with A.R.S. §§ 13-703 and 13-703.01 (Supp. 2002). F. Other Issues ¶68 Grell raised several other issues, all of which are rendered moot by the remand for resentencing. We therefore decline to address them. III. ¶69 CONCLUSION We affirm the trial court s determination that Grell does not have mental retardation. Because we conclude that the State to is bound by its agreement afford a jury trial on sentencing, we vacate Grell s death sentence and remand the case for resentencing in accordance with A.R.S. §§ 13-703 and 13703.01. _______________________________________ Rebecca White Berch, Vice Chief Justice - 38 - CONCURRING: _______________________________________ Ruth V. McGregor, Chief Justice _______________________________________ Michael D. Ryan, Justice _______________________________________ Sheldon H. Weisberg, Judge* *Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable Sheldon H. Weisberg, Chief Judge of the Arizona Court of Appeals, Division One, was designated to sit in this matter. B A L E S, Justice, concurring in part and dissenting in part ¶70 Based on the Supreme Court s decisions in Atkins and Cooper, I do not believe that the federal constitution allows states to execute defendants who are more likely than not mentally retarded but who cannot prove their retardation by the higher standard of clear and convincing evidence. Accordingly, I respectfully dissent from my colleagues decision to uphold the clear and convincing standard contained in A.R.S. § 13703.02(G). ¶71 [D]eath is not a suitable punishment for a mentally retarded criminal. Atkins, 536 U.S. at 321. - 39 - Although Atkins allows states to develop appropriate ways to enforce this constitutional restriction, id. at 317, the procedures adopted must themselves pass constitutional muster. proper framework for determining if a Cooper outlines the statutorily-assigned standard of proof on the issue of mental retardation comports with due process. ¶72 The majority recognizes that, while the right not to be executed if mentally retarded is of recent vintage, both this right (Atkins) and the right not incompetent (Cooper) are to constitutional stand trial if right[s] based on modern consensus and historical views of the issues. accord Pruitt (noting that v. the State, 834 N.E.2d Supreme Court has 90, 100-03 identified Op. ¶ 32; (Ind. the 2005) right of mentally retarded defendants not to be executed as grounded in a fundamental principle of justice). that, just as states may place I agree with the majority on defendants the burden of proving competency, states may place on defendants the burden of proving mental retardation. Op. ¶ 29. ¶73 with My disagreement the majority standard, rather than the burden, of proof. concerns the In arguing for a clear and convincing standard, the majority notes that there are significant differences between the right of the incompetent not to be tried and the right - 40 - of the retarded not to be executed. Id. ¶ 38. Noting differences in these constitutional rights does not itself justify requiring defendants to prove retardation by the higher standard of proof; nor substitute for actually applying the Cooper analysis. does it Moreover, the difference between a defendant who might be executed if a court incorrectly rejects a claim of mental retardation and an incompetent defendant who might erroneously be subjected to a trial does not support imposing a higher standard on the former as compared to the latter. ¶74 Nor can the majority justify a higher standard of proof by comparing the rights of the retarded and the mentally insane. Id. ¶ 40. The standard of proof arguably should be higher for eve-of-execution claims of insanity by defendants who were competent to be tried and sentenced to death as compared to defendants who claim to be mentally retarded, a permanent condition which must be established by evidence of onset before age eighteen. (Powell, J., Cf. Ford v. Wainwright, 477 U.S. 399, 426 (1986) concurring) (noting state may presume defendant remains sane and require defendant to make substantial threshold showing to obtain hearing on post-sentencing claim of insanity). Moreover, since Cooper, neither the Supreme Court nor this court has addressed constitution, whether execute a a state person can, who - 41 - is consistent more likely with than the not insane. Thus, the fact that Arizona statutes require defendants to establish mental incompetence (i.e., insanity) by clear and convincing evidence as a bar to execution, see A.R.S. § 134022(F), does not resolve whether the higher standard can constitutionally apply to that issue or to the issue of mental retardation. 13 ¶75 Atkins Our held legislature that enacted executing a A.R.S. § mentally 13-703.02 retarded before defendant violates the Eighth Amendment s prohibition against cruel and unusual punishment, 536 U.S. at 316, 321. Thus, A.R.S. § 13- 703.02 does not reflect a legislative effort to adopt a statute in light of the constitutional prohibition. Since Atkins, as the majority acknowledges, all but one of those states that have 13 The majority notes that the Georgia Supreme Court has upheld a standard of proof beyond a reasonable doubt for defendants claiming to be mentally retarded. Op. ¶ 34 n.9. The Georgia statutory scheme, which allows a verdict of guilty but mentally retarded in felony cases, substantially differs from Arizona s capital sentencing scheme, as the majority acknowledges. Id. Moreover, the Georgia decisions are not persuasive on the issue presented here. In Head v. Hill, 587 S.E.2d 613, 621 (Ga. 2003), the court reasoned that if a defendant may be required to prove insanity beyond a reasonable doubt, see Leland v. Oregon, 343 U.S. 790 (1952), then requiring proof of mental retardation beyond a reasonable doubt is also constitutional. This reasoning, however, fails to recognize that, under Atkins, the mentally retarded have a constitutional right not to be executed. Whether the State may assign to the defendant a higher standard for proving non-constitutional defenses at trial does not address whether the State can execute defendants who prove they are more likely than not mentally retarded. - 42 - set the standard of proof for proving mental retardation have adopted a preponderance standard. ¶76 the Op. ¶ 32. The majority, however, discounts the significance of standard statutes of proof provide for by a arguing pretrial that, because determination Arizona s of mental retardation, the defendant s risk . . . is not death, but a capital trial. Id. ¶ 35. The majority further states that the ability of defendants to present mental retardation evidence as mitigation during the sentencing hearing reduces the ultimate risk they face from an adverse determination under the clear and convincing standard for the pretrial hearing. ¶77 Id. The flaw in this analysis is that the pretrial hearing under A.R.S. § 13-703.02 is the defendant s only opportunity to secure his constitutional rights under Atkins. See id. ¶ 48 ( The judge hears mental retardation evidence as a legal bar to execution and the jury hears it for mitigation purposes. ); cf. id. ¶ those 31 (recognizing defendants only that the competency opportunity to hearing contest provides competency ). Under our statutes, the jury does not decide the Atkins issue when it makes its sentencing determination. See id. ¶ 48. Instead, each juror makes his or her own decision whether the defendant has proven any mitigating facts and how such facts should be valued. A.R.S. § 13-703(C); State ex rel. Thomas v. - 43 - Granville, 211 Ariz. 468, ___ ¶ 12 n.3, 123 P.3d 662, 665 n.3 (2005). 14 ¶78 Mitigation does not go to the constitutional issue in Atkins. Even before Atkins, a defendant could argue mental retardation as relevant mitigation evidence. 492 U.S. 302, constitution 319-20 did not (1989) prohibit defendants, the defendant retardation as mitigation 703(G). must (holding that, execution be of allowed evidence); Penry v. Lynaugh, see although mentally the retarded to present also A.R.S. mental § 13- Atkins, however, made clear that the ability to argue mitigation is not sufficient to avoid the constitutional issue as [m]entally special risk retarded of defendants wrongful in execution. the aggregate 536 U.S. face at a 321 (abrogating Penry, 492 U.S. at 323-25). 15 14 Cf. Johnson v. State, 102 S.W.3d 535, 541 (Mo. 2003) ( [T]he jury was not faced with the Atkins pronouncement: death is not a suitable punishment for a mentally retarded criminal. Rather, the jury instructions treated mental retardation as a mere mitigating circumstance not the outright bar to punishment dictated by Atkins. ); Kristen F. Grunewald, Case Notes, Atkins v. Virginia, 122 S. Ct. 2242, 15 Cap. Def. J. 117, 125 (2002) ( In Atkins, mental retardation acts as a bar to death. In mitigation, mental retardation is a reason to show mercy. ). 15 This court recognized the substantial difference between considering mental retardation as a possible mitigating factor and treating it as an absolute bar to the death penalty when the court remanded this case for reconsideration in light of Atkins after the trial judge had rejected Grell s claim of mental retardation as a mitigating factor. See State v. Grell, 205 Ariz. 57, 63, ¶¶ 37-40, 66 P.3d 1234, 1240 (2003). - 44 - ¶79 Although one or more jurors may find that the defendant has proven mental retardation by a preponderance of the evidence, the jurors remain free to decide that such evidence is not sufficiently substantial to call for leniency and to impose a death sentence. See A.R.S. § 13-703(C); Granville, 211 Ariz. at ___ ¶ 12 n.3, 123 P.3d at 665 n.3. Indeed, as the Supreme Court noted in Atkins, reliance on mental retardation as a mitigating factor can be a two-edged sword because the jury may consider the same evidence as supporting the imposition of a death sentence. 536 U.S. at 321 (noting that mental retardation may enhance likelihood of finding of aggravating factor of future dangerousness). We cannot uphold a clear and convincing standard by relying on the very process the Atkins court determined was insufficient to protect the constitutional rights of the mentally retarded. ¶80 In addition, the majority reasons that a clear and convincing standard is constitutional because Atkins recognized that, while there is national consensus against executing the mentally retarded, people may disagree over which individuals in fact have mental retardation. Op. ¶ 37. States must protect those defendants who fall within the national consensus on mental retardation, but are otherwise free to craft their laws for determining which defendants - 45 - meet the consensus standard. Id. But the fact that the Court has afforded states some flexibility in substantively defining mental retardation in no way answers whether states may constitutionally execute those defendants who prove they are more likely than not retarded under any applicable definition. ¶81 The majority attempts to argue that A.R.S. § 13-703.02 protects those defendants who fall within the national consensus by providing them with a comparatively lower bar while requiring defendants with higher IQ scores to go to greater lengths to prove their mental retardation. mistakenly assumes the national Id. consensus This argument embraces only defendants whose IQs are 65 or below and it fails to recognize how the statute actually works even as to those defendants. Although A.R.S. § 13-703.02 creates a rebuttable presumption of mental retardation for defendants whose IQ scores are 65 or below, this presumption shifts only the burden of production, not the burden of persuasion, to the State. State v. Arellano, ___ Ariz. ___, ___ ¶¶ 11-12, ___, P.3d ___, ___ (2006). the State has come forth with any evidence to rebut Once the presumption, the defendant still must prove mental retardation by clear and convincing evidence, regardless of IQ scores. ¶82 Additionally, the majority dismisses the special risk of wrongful execution faced by mentally retarded defendants by - 46 - stating it does not suggest the need for procedure to ascertain mental retardation. any particular Op. ¶ 36. The majority asserts that the clear and convincing standard will assure that defendants about whom there is a consensus against execution will be screened out at the pretrial stage ; other defendants do not face such a severe risk at sentencing that they may not constitutionally be put through the capital trial process. Id. ¶83 The right of the mentally retarded not to be executed, however, is not limited to those defendants who are severely retarded or especially who prohibits defendants. See that the id. ¶ states retarded . . . . ). can establish evidence. 16 compelling Amendment announced otherwise Under execution 37 ( [T]he may Defendants their not who of Atkins, all Court the mentally in execute can condition prove Eighth retarded Atkins the by clearly mentally their mental retardation by only a preponderance will not be screened out ; as a result, they still face the same special risk according to Atkins, cannot be remedied during mitigation. 16 that, 536 Indeed, the defendant in Atkins claimed to be mildly mentally retarded, 536 U.S. at 308, and our statute includes mildly mentally retarded defendants, A.R.S. § 13-703.02(K)(4). See also Atkins, 536 U.S. at 308 n.3 (noting that mild mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70) (citing Diagnostic and Statistical Manual of Mental Disorders 42-43 (4th ed. 2000)). - 47 - U.S. at 320-21. ¶84 Thus, the real issue here, which the majority does not directly confront, is whether the State can constitutionally execute those defendants who prove they are more likely than not mentally retarded but cannot meet the clear and convincing standard under A.R.S. § 13-703.02(G). ¶85 The Supreme Court in Cooper applied due process principles to assess a state s imposing a clear and convincing standard of proof on a criminal defendant. Although dealt stand with the constitutional right not to Cooper trial if incompetent, its framework applies in evaluating the standard of proof on mental retardation. (applying Cooper to See Pruitt, 834 N.E.2d at 100-03 mental retardation issue); State v. Williams, 831 So. 2d 835, 859-60 (La. 2002) (same); Howell v. State, 151 S.W.3d 450, 463-65 (Tenn. 2004) (same); see also Bowling v. Commonwealth, 163 S.W.3d 361, 382 (Ky. 2005) (citing Cooper and applying preponderance of the evidence standard as [w]e have applied . . . to a defendant s burden to prove incompetency to stand trial ). ¶86 In Cooper, the Court noted that historic and contemporary standards support a fundamental right not to stand trial if incompetent; in Atkins, the Court recognized a similar right not to be executed if mentally retarded. - 48 - Op. ¶ 32. The Cooper court also preponderance of noted the that evidence most or jurisdictions less to show required a incompetency; similarly, most jurisdictions require only a preponderance of the evidence for a showing of mental retardation. ¶87 Id. & n.7. Given the constitutional right at issue, the Court in Cooper weighed the respective interests of the state and the defendant to assess the fundamental fairness of requiring the defendant to prove incompetency evidence. 517 U.S. at 362-67. by clear and convincing The function of a standard of proof . . . is to instruct the factfinder concerning the degree of confidence correctness our of society factual thinks conclusions he . (quotation marks and citation omitted). should . . . have Id. in the at 362 The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision. Id. (quotation marks and citation omitted). ¶88 an The Cooper court determined that the consequences of erroneous determination of competence are dire for the defendant because he would not be able to communicate with his attorney or exercise other fundamental rights involved in a fair trial. Id. at 364. In contrast, the injury to the state from an erroneous conclusion that a defendant is incompetent when he in fact is malingering is modest. - 49 - Id. at 365. The state may incur expense and delay, but such errors are subject to correction in subsequent proceedings and the state may detain the defendant for a reasonable time to determine if he might later become competent. Id. Recognizing that there were important state interests at stake, the Court concluded that, where incompetence is shown by a preponderance of the evidence, the defendant s competent fundamental outweighs the right [s]tate s to be interest operation of its criminal justice system. ¶89 Applying Cooper s weighing of tried in only the while efficient Id. at 367. interests framework here, the use of a clear and convincing evidence standard would significantly increase the risk of an erroneous determination of no mental retardation for defendants who can prove they are more likely than not mentally retarded. Williams, 831 So. 2d at 860 (citing Cooper, 517 U.S. at 362-63). The imposition of the death penalty is serious and permanent; any mistake cannot be undone once the punishment is carried out. See Evans v. State, 886 A.2d 562, 584 (Md. 2005) ( Reflected throughout the Supreme Court jurisprudence underlying the Eighth Amendment is the principle that death is different. ). ¶90 The State s interest, in contrast, is at best modest, likely even less than the interest involved in Cooper. See Howell, 151 S.W.3d at 465 ( [T]he risk to the petitioner of an - 50 - erroneous outcome is dire, as he would face the death penalty, while the risk to the State is comparatively modest. ) (citing Cooper, 517 U.S. at 364-65). At oral argument, counsel for the State candidly acknowledged that the State does not have any particular interest in executing those defendants who can establish their mental retardation by a preponderance but not by clear and convincing evidence. To be sure, the State does have an interest in preventing malingering defendants from obtaining erroneous determinations of their mental retardation. determinations determinations concluding instead do involved criminal limit not, the in in contrast Cooper, proceedings ultimate to the prevent the against punishment competency State from defendant; the the But such they State can exact. Additionally, the risks of malingering are reduced because the statutory definition of mental retardation requires proof not only of a low IQ but also significantly impaired adaptive behavior and the onset of such conditions before the age of eighteen. ¶91 A.R.S. § 13-703.02(K)(2). When the relative risks are death and a lesser available punishment, the defendant s right not to be executed if mentally retarded outweighs the state s interest as a matter of federal constitutional law. Pruitt, 834 N.E.2d at 103; accord Williams, 831 So. 2d at 860 ( Clearly, in the Atkins - 51 - context, the State may bear the consequences of an erroneous determination that the defendant is mentally retarded (life imprisonment at hard labor) far more readily than the defendant of an erroneous retarded. ); these determination Howell, 151 circumstances, S.W.3d weighs in that at he 465 favor is ( The of the not mentally balance, under petitioner and justifies applying a preponderance of evidence standard at the hearing. ). ¶92 In light of the interests involved, I would hold that the clear and convincing standard of proof under A.R.S. § 13703.02(G) is unconstitutional because the State cannot, consistent with due process, execute those defendants who show they are remand, more the likely trial than court not mentally should retarded. consider whether Thus, Grell on can establish mental retardation by a preponderance of the evidence before the court conducts further sentencing proceedings before a jury. I otherwise concur in the majority s opinion. _______________________________________ W. Scott Bales, Justice - 52 -

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