Is a Retarded Person Capable of Murder? The Shawn Grell Case

I have covered news for the past decade or more in the Phoenix area and the case of Shawn Grell is one of the most troubling, gruesome cases I have ever encountered.

I remember covering this story when it broke. I was working the morning assignment desk and heard the scanners crackle with radio traffic from MCSO on a burned body in the desert. At the time, I didn't know it was the body of a 2 yr old girl....or the facts of this gruesome case.

According to court records her father, Shawn Grell, took his daughter out to the desert to "visit Santa and look at Christmas lights"...the reality couldn't be further from the truth. Instead, he doused her sleeping body with gasoline and burned her to death.

In his first trial, Grell chose to waive a jury trial and a judge sentenced him to death. Grell is now challenging this and goes to court again on Monday. His argument is that a mentally retarded person cannot waive a jury trial. He contends that the trial court erred by failing to find that he is mentally retarded and appropriately weighing that factor in mitigation of his sentence, Second, Grell argues that the execution of a mentally retarded person violates the Eighth Amendment's prohibition against cruel and unusual punishment.

The heinous crime of this man brings to light the question whether a "retarded" man can be put to death. You play jury and decide whether the crime deserves the punishment.

On November 29, 1999, Shawn Grell left work early, claiming that he was needed at his girlfriend's house. He never returned to work. He spent the next few days at the home where he lived with his 2 yr old daughter Kristen, his girlfriend Amber Salem and Amber's parents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Grell makes two arguments regarding mental retardation. First, he contends that the trial court erred by failing to find that he is mentally retarded and appropriately weighing that factor in mitigation of his sentence, Second, and more importantly, Grell argues that the execution of a mentally retarded person violates the Eighth Amendment's prohibition against cruel and unusual punishment.

At his sentencing hearing, Grell presented evidence that he is mentally retarded, but failed to convince the trial court of that fact. Since the time of Grell's conviction, the United States Supreme Court has determined that the Eighth Amendment prohibits the execution of mentally retarded persons, Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002), a point not at issue in Grell's sentencing hearing. Thus, we turn to the companion questions of what standards govern the determination of mental retardation, and whether the trial court applied those standards when finding that Grell was not mentally retarded, for if the proper standards were correctly applied, then the trial court's determination that Grell is not mentally retarded may stand. If, however, the wrong standards were applied to an issue that may serve as a constitutional bar to execution, the matter must be reconsidered. We also consider the effect, if any, on Grell's case of A.R,S. § 13-703.02 (Supp. 2002), which makes the mentally retarded ineligible for the death penalty in Arizona.

If you have read this far, then I ask that you watch Mike Watkiss' coverage of this case on KTVK Ch 3 starting next Monday and decide for yourself whether this man deserves to be sentenced to death.