State v. Arellano

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-05-0397-SA
Petitioner, )
) Pinal County
v. ) Superior Court
) No. CR-14946
THE HONORABLE SILVIA R. ARELLANO, )
JUDGE OF THE SUPERIOR COURT OF )
ARIZONA, in and for the County )
of Pinal, ) O P I N I O N
)
Respondent, )
)
AND )
)
MICHAEL APELT and RUDI APELT, )
)
Real Parties in Interest. )
)
__________________________________)

Special Action from the Superior Court in Pinal County
The Honorable Silvia R. Arellano, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED IN PART; REMANDED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Patricia A. Nigro, Assistant Attorney General
Attorneys for State of Arizona

DANA CARPENTER Phoenix
Attorney for Michael Apelt

JON M. SANDS, FEDERAL PUBLIC DEFENDER Phoenix
By Michael L. Burke, Assistant Federal Public Defender
Attorneys for Rudi Apelt

McDERMOTT WILL & EMERY LLP Washington, DC
By Douglas G. Edelschick

And

SNELL & WILMER LLP Phoenix
By Daniel J. McAuliffe
Kim S. Magyar
Attorneys for Amicus Curiae American Association on Mental
Retardation; Amicus Curiae The ARC of the United States; and
Amicus Curiae The ARC of Arizona
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 The State brought this special action to resolve

questions relating to the procedure and evidence involved in

hearings held on mental retardation in capital cases pursuant to

Arizona Revised Statutes (A.R.S.) section 13-703.02 (Supp.

2005). We consider (1) whether a trial judge may determine that

a defendant has established a rebuttable presumption of mental

retardation by considering only expert reports of intelligence

quotient (IQ) scores and (2) whether testimony from lay

witnesses regarding a defendant’s present adaptive behavior is

relevant to a determination of mental retardation. We hold that

a defendant can establish a rebuttable presumption of mental

retardation through IQ scores and that evidence from lay

witnesses of post-age-eighteen adaptive behavior may be relevant

to a determination of mental retardation.

I.

¶2 Michael and Rudi Apelt are brothers and German

citizens who were sentenced to death for the murder of Cindy

2

Monkman. 1 Between August and October of 1988, “the brothers met

and ‘conned’ a series of women” to obtain “money and other

assistance.” State v. Michael Apelt, 176 Ariz. 349, 353, 861

P.2d 634, 638 (1993). As part of their plan, the Apelts looked

for a woman to marry Michael. Id. During this time, Michael

and Rudi met Cindy Monkman at a bar and claimed to be computer

and banking experts. Id. After having known each other for

less than a month, Cindy and Michael were married in Las Vegas.

Id. at 354, 861 P.2d at 639. Ten days later, at Michael’s

suggestion, they applied for life insurance policies on Cindy’s

life, totaling $400,000. Id. The day after the life insurance

policies were approved, Michael and Rudi murdered Cindy. Id. at

354-55, 861 P.2d at 639-40. A jury found Michael and Rudi

guilty of first degree murder and conspiracy to commit first

degree murder, and the trial judge sentenced the brothers to

death for the murder convictions. State v. Rudi Apelt, 176

Ariz. 369, 371, 861 P.2d 654, 656 (1993); Michael Apelt, 176

Ariz. at 357, 861 P.2d at 642. This Court subsequently affirmed

Michael’s and Rudi’s convictions and sentences. Rudi Apelt, 176

Ariz. at 372, 861 P.2d at 657; Michael Apelt, 176 Ariz. at 353,

1
Because the facts of this case have already been treated in
depth in the Apelts’ capital appeal opinions, we only briefly
recount the facts of the murder of Cindy Monkman. For a more
detailed description, see State v. Rudi Apelt, 176 Ariz. 369,
861 P.2d 654 (1993), and State v. Michael Apelt, 176 Ariz. 349,
861 P.2d 634 (1993).

3

861 P.2d at 638.

¶3 Following the United States Supreme Court ruling in

Atkins v. Virginia, 536 U.S. 304 (2002), which held that the

Eighth Amendment prohibits executing mentally retarded

defendants, the Apelts filed petitions for post-conviction

relief claiming that they are mentally retarded. See Ariz. R.

Crim. P. 32. As required by statute, both State and defense

psychological experts evaluated the Apelts to determine whether

they are mentally retarded. See A.R.S. § 13-703.02.B-.D.

During the proceedings held under section 13-703.02, the trial

court entered two orders that led to this special action.

First, the court found that the Apelts had established a

rebuttable presumption of mental retardation. Second, the court

granted in part the Apelts’ request that the court preclude

testimony by employees of the Arizona Department of Corrections

(ADOC) about the Apelts’ present adaptive behavior.

¶4 The State challenged those rulings by filing a special

action petition with this Court rather than with the Court of

Appeals, which could have exercised jurisdiction. See A.R.S. §

12-120.21.A.4 (2003). Although the Court of Appeals lacks

jurisdiction over direct appeals from death sentences, section

12-120.21.A.4 grants the Court of Appeals “[j]urisdiction to

hear and determine petitions for special actions brought

pursuant to the rules of procedure for special actions, without

4

regard to its appellate jurisdiction.” (Emphasis added.) This

grant to the Court of Appeals of broad jurisdiction over special

actions necessarily includes special actions arising out of

capital cases. See Hurles v. Superior Court, 174 Ariz. 331, 331

n.1, 849 P.2d 1, 1 n.1 (App. 1993). In most circumstances, a

petitioner, including a petitioner involved in capital

litigation, should file a special action in the Court of

Appeals. Nevertheless, we accepted jurisdiction because the

Supreme Court’s opinion in Atkins has raised questions of

statewide importance, including the issues raised in this case,

concerning the procedure for mental retardation hearings and the

application and interpretation of A.R.S. § 13-703.02. We

therefore exercise jurisdiction pursuant to Article 6, Section

5.3, of the Arizona Constitution.

II.

¶5 The legislature defined the procedure for determining

whether a defendant in a capital case has mental retardation in

A.R.S. § 13-703.02. As the State concedes, this statute applies

to all capital sentencing proceedings, including post-conviction

proceedings brought to determine whether a defendant meets the

statutory definition of mental retardation. See A.R.S. § 13-

703.02.J (stating that section 13-703.02 applies to all capital

sentencing proceedings); State v. Dann, 206 Ariz. 371, 375 ¶ 15

n.3, 79 P.3d 58, 62 n.3 (2003) (citing 2002 Ariz. Sess. Laws,

5

5th Spec. Sess., ch. 1, § 4, and noting that A.R.S. § 13-703.02

was amended to apply to all capital sentencing and resentencing

proceedings).

¶6 The statute requires that psychological experts

determine the defendant’s IQ before the trial court considers

the issue of mental retardation. A.R.S. § 13-703.02.B-.D.

After the experts submit their reports to the trial court,

the trial court shall hold a hearing to determine if
the defendant has mental retardation. At the hearing,
the defendant has the burden of proving mental
retardation by clear and convincing evidence. A
determination by the trial court that the defendant’s
intelligence quotient is sixty-five or lower
establishes a rebuttable presumption that the
defendant has mental retardation.

A.R.S. § 13-703.02.G.

¶7 The trial court considered reports submitted by

psychological experts for the State and for the defense. See

A.R.S. § 13-703.02.G. All of the experts opined that Michael

and Rudi have IQs of sixty-five or lower. On the basis of those

opinions, the trial court determined that the defendants had

established rebuttable presumptions of mental retardation.

¶8 While the State concedes that an IQ of sixty-five or

below establishes a rebuttable presumption of mental

retardation, the State claims that the trial court abused its

discretion by determining that the Apelts were entitled to such

a presumption before conducting an evidentiary hearing. In

6

making its ruling, the trial court stated that “[b]ecause

application of the presumption may affect the order in which

evidence is presented, it is logical to construe this statutory

language as permitting the pre-hearing determination of whether

or not the presumption applies.”

¶9 We review the interpretation of statutes de novo.

Pima County v. Pima County Law Enforcement Merit Sys.

Council, ___ Ariz. ___, ___ ¶ 13, 119 P.3d 1027, 1030 (2005).

“We interpret statutes to give effect to the legislature’s

intent. When a statute is clear and unambiguous, we apply its

plain language and need not engage in any other means of

statutory interpretation.” Kent K. v. Bobby M., 210 Ariz. 279,

283 ¶ 14, 110 P.3d 1013, 1017 (2005).

¶10 We conclude that the statute permits a trial court to

find that a defendant has established a rebuttable presumption

of mental retardation based solely on experts’ reports of a

defendant’s scores on IQ tests. The statute places no

limitation on the authority of a trial court to make that

determination. In addition, although the statute does not

define when a trial court is to make its initial determination,

subsection F indicates that the legislature intended the court

to make some preliminary determinations in reliance upon IQ

scores. Subsection F states, “If the scores on all the tests

for intelligence quotient administered to the defendant are

7

above seventy, the notice of intent to seek the death penalty

shall not be dismissed on the ground that the defendant has

mental retardation.” A.R.S. § 13-703.02.F. This language

directs the trial court to make a preliminary determination of

whether to foreclose dismissal of the death penalty on the

ground of mental retardation by considering IQ scores only. We

think that the legislature intended that the converse also be

true: The trial court should be able to determine whether a

defendant has established a rebuttable presumption of mental

retardation by relying on the defendant’s IQ scores, at least

when all experts agree that the IQ scores are sixty-five or

lower.

¶11 Rebuttable presumptions are commonly used in criminal

cases. See, e.g., Guthrie v. Jones, 202 Ariz. 273, 277 ¶ 18, 43

P.3d 601, 605 (App. 2002) (discussing rebuttable presumption of

intoxication or non-intoxication in prosecutions for driving

under the influence); Korzep v. Superior Court, 172 Ariz. 534,

539, 838 P.2d 1295, 1300 (App. 1991) (noting that A.R.S. § 13-

411.C provides a rebuttable presumption of reasonable conduct

when one acts to prevent commission of certain enumerated

offenses); State v. Fields, 117 Ariz. 319, 321, 572 P.2d 453,

455 (App. 1977) (discussing rebuttable presumption of a

defendant’s sanity). A rebuttable presumption, however,

“vanishes when the state provides contradictory evidence.”

8

Korzep, 172 Ariz. at 539, 838 P.2d at 1300; see also State v.

Grilz, 136 Ariz. 450, 455, 666 P.2d 1059, 1064 (1983) (once a

defendant produces evidence sufficient to raise reasonable doubt

as to sanity, the presumption disappears entirely).

¶12 Moreover, “a presumption or inference does not shift

the burden of proof, but only aids [a party] in maintaining its

burden.” State v. Knaubert, 27 Ariz. App. 53, 60, 550 P.2d

1095, 1102 (1976) (stating that the existence of a presumption

of sanity does not alter the State’s burden); see also State v.

Hyde, 186 Ariz. 252, 266, 921 P.2d 655, 669 (1996)

(distinguishing between the burden of going forward, which

“requires the party that bears it to produce sufficient

preliminary evidence,” and the burden of persuasion, which

“requires the party that bears it to persuade the trier of fact

to rule in its favor”). Like the presumption of sanity in

criminal cases, the rebuttable presumption of mental retardation

that arises under section 13-703.02.G merely affects who must go

forward with evidence and does not shift the burden of

persuasion. In mental retardation hearings, therefore, the

defendant maintains the burden of proving mental retardation.

Indeed, any other conclusion would be inconsistent with the

clear statutory language of section 13-703.02.G: “At the

hearing, the defendant has the burden of proving mental

retardation by clear and convincing evidence.”

9

¶13 In this case, the trial court made a preliminary

determination that the defendants’ IQ scores established

rebuttable presumptions of mental retardation. Therefore, the

trial court must find the defendants are mentally retarded if

the State fails to present any evidence to challenge that

conclusion. The presumption of mental retardation based on the

IQ scores vanishes, however, if the State presents evidence that

calls into question the validity of the IQ scores or tends to

establish that either defendant does not otherwise meet the

statutory definition of “mental retardation.” See A.R.S. § 13-

703.02.K.2 (defining “mental retardation” as also including

significant impairment in adaptive functioning and onset before

age eighteen). At that point, the IQ scores serve as evidence

of mental retardation, to be considered by the trial court with

all other evidence presented. We find no error in the trial

court’s determination that the Apelts established a rebuttable

presumption of mental retardation prior to an evidentiary

hearing.

III.

¶14 The State also challenges the trial court’s order

preventing the State from presenting testimony from ADOC

personnel regarding the Apelts’ current communication, social,

and interpersonal skills, as well as testimony relating to their

work, leisure, and health habits. In a pre-hearing ruling, the

10

trial court precluded direct testimony from ADOC employees “to

the extent that such testimony is offered to show Defendant’s

present adaptive behavior in prison.” 2 The court based this

ruling on its interpretation of section 13-703.02.K and

concluded that any adaptive behavior that occurs after the age

of eighteen is not relevant to a determination of mental

retardation. “Evidentiary rulings are subject to the trial

court’s determination and will not be disturbed, absent an abuse

of discretion.” State v. Jones, 197 Ariz. 290, 308 ¶ 47, 4 P.3d

345, 363 (2000). An abuse of discretion occurs when “the

reasons given by the court for its action are clearly untenable,

legally incorrect, or amount to a denial of justice.” State v.

Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18

(1983).

¶15 We begin our analysis by considering the statutory

language. Section 13-703.02.K.2 defines mental retardation as

“a mental deficit that involves significantly subaverage general

intellectual functioning, existing concurrently with significant

impairment in adaptive behavior, where the onset of the

foregoing conditions occurred before the defendant reached the

age of eighteen.” The statute defines adaptive behavior, in

2
The court also ruled that “[a]ny other use of such
testimony, either as support for an expert’s opinion on mental
retardation, or as it might specifically rebut defense testimony

11

turn, as “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.

¶16 The language of section 13-703.02.K supports the

proposition that a trial court may consider post-age-eighteen

adaptive behavior to evaluate mental retardation. Although

section 13-703.02.K.2 requires that the onset of intellectual

and adaptive behavior deficits must have “occurred before the

defendant reached the age of eighteen,” the statute does not

limit evidence of adaptive behavior to events that occurred

before age eighteen. Indeed, at oral argument, the Apelts

conceded that evidence should not be excluded simply because it

involves post-age-eighteen behavior.

¶17 Evidence of post-age-eighteen adaptive behavior skills

or deficiencies, whether observed by ADOC personnel or other

witnesses, could well be relevant to a determination of mental

retardation. Under Rule 401 of the Arizona Rules of Evidence,

“evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence”

is relevant.

________________________________
concerning adaptive behavior prior to the age of eighteen, will
be considered . . . at the appropriate time.”

12

¶18 In this case, any testimony from ADOC personnel about

the Apelts’ adaptive behavior skills as adults tends to make the

existence of any deficiency in adaptive functioning more

probable than it would be without such evidence. 3 In addition,

because mental retardation is a “permanent, relatively static

condition,” Heller v. Doe by Doe, 509 U.S. 312, 323 (1993),

evidence of any skills or deficiencies in adaptive behavior

exhibited by a defendant, even after age eighteen, helps

determine whether a defendant has mental retardation.

¶19 Furthermore, testimony about adaptive behavior is not

irrelevant or otherwise inadmissible merely because it comes

from a lay witness. Finders of fact often consider testimony

from lay witnesses in cases involving a defendant’s mental

condition. For example, “lay testimony has long been admissible

in criminal trials on the issue of sanity,” State v. Bay, 150

Ariz. 112, 116, 722 P.2d 280, 284 (1986), and has been

3
In its amicus brief, the American Association on Mental
Retardation (AAMR) noted that excluding non-expert evidence
solely on the basis of the ADOC employees’ lack of experience
with the defendant prior to the age of eighteen “would not be
consistent with clinical practice” because “[t]rained experts in
mental retardation regularly consider non-expert observations of
post-eighteen adaptive behavior to be relevant to an assessment
of mental retardation.” On the other hand, the AAMR also noted
that non-expert observations “receive little or no weight from
clinical experts if they are made in the context of atypical
environments (such as prison).” The weight that evidence is to
be given, however, is a consideration separate from its
admissibility. See infra ¶ 19.

13

“universally held” proper and admissible on the subject of

competency, Sapp v. Lifrand, 44 Ariz. 321, 324, 36 P.2d 794,

796 (1934). “[T]he fact that [a person] is a lay witness goes

not to the admissibility of the testimony but rather to its

weight.” Bay, 150 Ariz. at 116, 722 P.2d at 284.

¶20 Other jurisdictions have reached the same conclusion

as we do today and have allowed corrections personnel to testify

about a defendant’s post-age-eighteen adaptive behavior in

proceedings to determine mental retardation. See, e.g., Pickens

v. State, 126 P.3d 612, 617 (Okla. Crim. App. 2005) (corrections

personnel testified about defendant’s communication deficits,

noting that “things had to be explained to [him] more than once,

in ‘simpler’ terms, and multi-syllabic words confused him”); Ex

parte Briseno, 135 S.W.3d 1, 18 (Tex. Crim. App. 2004) (four

Texas Department of Criminal Justice officers testified at an

Atkins hearing about Briseno’s communication skills and that

they “saw him reading magazines and filling out commissary forms

appropriately”).

¶21 Finally, we note that applying the trial court’s

interpretation of section 13-703.02.K would lead to an illogical

result. The provision requiring that symptoms of mental

retardation occur before age eighteen applies to both elements

of mental retardation: significantly subaverage intelligence

and significantly impaired adaptive behavior. If the statutory

14

reference to onset before the age of eighteen precludes

observations of adaptive behavior made after the age of

eighteen, that preclusion applies equally to evidence of

intellectual functioning. See A.R.S. § 13-703.02.K.2. A court,

then, could consider IQ tests, which are routinely used to

measure intellectual functioning, only if the tests were given

before the age of eighteen. Because pre-age-eighteen IQ test

results are not always available, such an interpretation could

restrict a defendant’s ability to prove mental retardation.

That interpretation is also inconsistent with A.R.S. 13-

703.02.B, which contemplates that IQ tests given to an adult

defendant will be used to evaluate mental retardation. See

A.R.S. § 13-703.02.B (providing that the court will appoint a

psychological expert to administer an IQ test).

¶22 Accordingly, we conclude that the trial court erred

as a matter of law when it held that evidence of the Apelts’

adaptive behavior after age eighteen is irrelevant to a

determination of mental retardation under section 13-703.02. 4

¶23 The trial court also concluded that even assuming that

ADOC testimony was relevant to the issue of mental retardation,

4
Of course, the trial judge must determine whether any
particular testimony by a lay witness regarding post-age-
eighteen adaptive behavior should be excluded because, for
instance, it lacks foundation, is not relevant, is cumulative or
unduly prejudicial. Ariz. R. Evid. 701, 401, 403.

15

it would be unduly prejudicial. Because this ruling grew out of

the trial court’s erroneous determination that the testimony of

ADOC employees is irrelevant as a matter of law, we set aside

this ruling also. 5

IV.

¶24 For the foregoing reasons, we vacate that portion of

the trial court’s order that precluded testimony by ADOC

employees and remand to the trial court for proceedings

consistent with this opinion.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

5
A trial judge usually will not exclude evidence as unduly
prejudicial when the trial is to the court. “Generally, error
is less likely to be deemed to require reversal in a bench trial
because the judge is less likely to be deflected from the task
of fact-finding by prejudicial considerations that a jury might
find compelling.” People v. Edwards, 431 N.W.2d 83, 86 (Mich.
Ct. App. 1988); see also State v. McMillin, 783 S.W.2d 82, 96
(Mo. 1990) (“Where a judge, rather than a jury, is the trier of
fact, the reviewing court presumes that inadmissible evidence is
not prejudicial.”), abrogated on other grounds by Morgan v.
Illinois, 504 U.S. 719 (1992); Commonwealth v. Carter, 546 A.2d
1173, 1181 (Pa. Super. Ct. 1988) (noting that a judge can
disregard evidence ultimately proving to be inflammatory,
misleading or prejudicial, or resting upon a suspect foundation
more easily than a jury can).

16

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

17