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Honorable Silvia Arellano
Filed: 5/19/2009 Case Number: CR14946
Plaintiff	Prosecution
STATE OF ARIZONA	Prosecutor SHERRI ROLLISON JEFFREY ZICK
v.
Defendant	Defense
MICHAEL APELT RUDI ALFRED APELT	DANA CARPENTER MICHAEL L BURKE LETICIA MARQUEZ

Defendant Michael Apelt filed a Notice of Post-Conviction Relief seeking to overturn his death sentence on the grounds that he is mentally retarded and therefore ineligible for that penalty pursuant to A.R.S. §13-753 and Atkins v. Virginia, 536 U.S. 304 (2002). After considering reports submitted by psychological experts for the state and the defense, the Court ruled that the defendant had established a rebuttable presumption of mental retardation.

From April 30, 2007 through May 11, 2007, and on September 28, 2007, the Court conducted an evidentiary hearing regarding the Atkins claim. The hearing was continued to allow presentation of additional evidence. The parties subsequently stipulated to receipt of that evidence, and by order dated March 31, 2009, the Court vacated the hearing and deemed the matter under advisement effective March 25, 2009.

Having considered the evidence presented, the parties' closing memoranda, the files and records, and the applicable law, the Court rules as follows:

Mental retardation is defined in A.R.S. §13-753(K)(3) as “a condition based on 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.”

This definition of mental retardation, for the most part, parallels the definition of the disorder found in Atkins, 536 U.S. at 308 n.3. The United States Supreme Court cited the definitions used by the American Association on Mental Retardation (AAMR, now known as the American Association on Intellectual and Developmental Disabilities) and the American Psychiatric Association (APR). Before 2002, the AAMR defined mental retardation as “significantly subaverage intellectual functioning, existing concurrently with related limitation in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Atkins, 536 U.S. at 308 n.3 (citing Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th Ed. 1992). The AAMR now defines mental retardation as "a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18." Mental Retardation: Definition, Classification, and Systems of Supports 1 (10th Ed. 2002).

The APR defines mental retardation as “significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C).” Atkins, 536 U.S. at 308 n.3 (citing Diagnostic and Statistical Manual of Mental Disorders 41 (4th Ed. 2000)). Significantly Subaverage Intellectual Functioning

A.R.S. §13-753(K)(5) defines “significantly subaverage intellectual functioning” as “a full scale intelligence quotient of seventy or lower.” The Court is further directed to “take into account the margin of error for the test administered.” Id.

When he was nine years old, the defendant's overall IQ was 88 based on the German children's version of the Hamburg Wechsler Adult Intelligence Scales (HAWIE). He was tested again in 2000 with portions of both the adult version of the HAWIE (HAWIE-R) and the Wechsler Adult Intelligence Scales (WAIS) test, and based upon the sub-test scores, in 2005 Dr. Ron Ruff determined his overall IQ was 61, plus or minus 5 as the margin of error.

In 2004, Dr. Helmut Kury administered the HAWIE-R and determined the defendant’s overall IQ was 47, plus or minus 15 as the margin of error. Dr. Kury also averaged the tests he administered and determined a median score of 65. He further testified that the defendant’s IQ was somewhere between 50 and 80. Dr. Kury was initially retained by the state, but was dismissed after opining that the defendant is mentally retarded.

Dr. Ruff testified that it is unknown what the defendant’s IQ was at age eighteen and whether it was 70 or lower by that age, although he believed that it must have been in order to explain the lower scores in 2000 and 2004. At age nine, the defendant was assigned to the Special School for Educationally Impaired Children with learning disabilities. Dr. Ruff speculated that as a result of this placement, the defendant did not develop his intellectual abilities at the same rate as children in the mainstream school, such that when he left school after the ninth grade at age sixteen, his IQ had probably “tapered downwards.” Neither Dr. Ruff nor Dr. Kury provided persuasive explanations to the Court why the defendant's scores were so much lower from when he was nine. However, both experts admitted that they did find evidence of malingering. The Court is also persuaded by the fact that although the evidence showed that the defendant was severely beaten by his father during his childhood, he did not suffer any brain injury, which would have been a possible explanation for the lower IQ. This finding is supported by both Dr. Harry Tamm and Dr. Michael Powers, who reviewed the defendant’s EEG and MRI brain scan results taken on April 9, 2008. Dr. Powers found the results normal. Although Dr. Tamm found the possibility of some remote brain damage, probably early in life, he stated that “the findings are mild, and nonspecific, and could simply represent a normal variant.” Stipulation Re: EEG and MRI, p.2.

Thus, based on the three IQ scores and the accepted “margin of error for the tests administered,” the Court is confronted with the following ranges: 88 (German school), 56 to 66 (Ruff), 32 to 62 (or 50 to 80) (Kury). Based upon the lack of evidence to support the marked decrease in IQ score, and the experts' opinions that the defendant was malingering, the Court finds that the defendant has failed to establish by even a preponderance of the evidence that he suffers from significant subaverage intellectual functioning.

Significant Impairment in Adaptive Behavior

“Adaptive behavior” is further defined in A.R.S. §13-753(K)(1) 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.” By this definition, "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." State v. Grell, 212 Ariz. 516, ¶62 (2006). In essence, this requires that the experts investigate and determine a defendant’s conceptual, social and practical adaptive behavior and skills in the context of his or her behavior in the community. The Court also agrees with Dr. Alan Greenspan, who testified that the assessment of adaptive behavior should focus on the defendant's life before incarceration.

In Grell, the Supreme Court explained that A.R.S. §13-753 differs from the DSM-IV definition of mental retardation in that the DSM-IV requires deficits in only two of eleven specified areas to satisfy a diagnosis of mental retardation and the statute does not.

Dr. Ruff conducted an analysis of the defendant’s adaptive behavior in 2006. Although he reviewed documentary evidence from the defendant’s childhood and affidavits from family members and others, he relied primarily upon the defendant's self-report of his abilities. Even so, he found that on many of the scales, the defendant was able to do the skills appropriately. He also felt that some of the defendant’s responses were exaggerated.

Dr. Ruff found the defendant had deficits in the following areas: social/interpersonal skills, financial responsibility, and functional academics. He stated that the defendant’s social/interpersonal skills were flawed because he did not act appropriately in his relationships with women: his conduct of traveling to Mexico with Anke Dorn and then abandoning her to flirt with other women was “non-functional and inappropriate.” Regarding financial responsibility, Dr. Ruff stated that the defendant always seemed to be looking for shortcuts to obtain money and failed to have a good work ethic. The defendant was deficient in functional academics because he was very self-centered and unable to consider anyone else’s needs.

The Court finds Dr. Ruff’s assessment unpersuasive. It appears to focus more on the defendant’s maladaptive behavior and his inability to behave lawfully, rather than his ability to perform daily life tasks and manage his life. Regarding daily life tasks, Dr. Ruff agreed that the defendant had many strengths, such as cleaning his house, being orderly, shopping and fixing meals. A more complete picture of the defendant’s adulthood, based on all the evidence, both from the hearing and the defendant’s trial, including his own testimony, shows that he has consistently displayed the ability to engage in independent and self-directed thinking, planning and conduct. After leaving school, he worked at various jobs, at least one for an extended period of time, served in the military and was honorably discharged, married, and lived independently. At his sentencing hearing, he introduced two letters from former employers that documented his terms of employment and lack of work-related problems, and a letter from a doctor who stated that he treated the defendant for various physical illnesses between 1984 and 1988 but observed no psychological problems. State v. Apelt, 176 Ariz. 349, 368 (1993). He traveled to the United States and Mexico, learned to speak English sufficiently to communicate and interact appropriately with others, negotiated purchases of vehicles and apartment leases, understood foreign currency exchange rates, and obtained employment. After persuading the victim to marry him, he convinced her to buy a life insurance policy as part of his scheme to murder her for the proceeds. Knowing he would eventually be questioned by the police about his wife’s disappearance, he devised an explanation that she left the apartment that evening after receiving a telephone call, telling him she would meet him later at a restaurant, and established an alibi consistent with this story. He maintained this story consistently despite persistent police interrogation and again more than a year later at his trial.

The Court is mindful that it can also consider the defendant's adult institutional behavior, including his communication, social and interpersonal skills, and work, leisure and health habits in determining whether he has significant adaptive behavior deficits. State v. Arellano (Apelt), 213 Ariz. 474, ¶¶14-23 (2006). The defendant has been in prison since 1989. His writings in prison are literate and coherent and certainly do not evidence any subaverage intellectual functioning or academic skills. He maintains a neat appearance, keeps his cell clean, and is well-behaved. However, the Court does not give much weight to this evidence because it offers little insight into determining whether he had significant impairment in adaptive behavior before age eighteen through the commission of these offenses. The defendant is housed in the most restrictive, controlled area of the prison due to his status as a death row inmate. As the Supreme Court noted in Arellano (Apelt), the AAMR provides 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. 213 Ariz. at n.3.

In sum, the evidence shows a defendant who is able to meet society's expectations of him. The Court finds that the defendant has not proved by even a preponderance of the evidence that throughout his childhood and adult life he has suffered from significant impairment in adaptive behavior in meeting the standards of personal independence and social responsibility expected of a person of his age and cultural group. A.R.S. 13-753(K)(1).

Onset Before Age Eighteen

Based on the above findings, the Court also finds that the defendant has failed to prove by even a preponderance of the evidence that the onset of his subaverage intellectual functioning and adaptive behavior deficits occurred before he reached the age of eighteen. A.R.S. §13-753(K)(2).

IT IS THEREFORE ORDERED denying the defendant Michael Apelt’s Rule 32 Petition. He has failed to show by even a preponderance of the evidence that he is mentally retarded

Defendant Rudi Apelt filed a Notice of Post-Conviction Relief seeking to overturn his death sentence on the grounds that he is mentally retarded and therefore ineligible for that penalty pursuant to A.R.S. §13-753 and Atkins v. Virginia, 536 U.S. 304 (2002). After considering reports submitted by psychological experts for the state and the defense, the Court ruled that the defendant had established a rebuttable presumption of mental retardation.

Having considered the evidence presented, the parties' closing memoranda, the files and records, and the applicable law, the Court rules as follows:

Significantly Subaverage Intellectual Functioning

The defendant was first tested by the German Psychiatric and Neurologic Public Health Service in 1966 at age six and determined to have "limited intellectual mobility" and an IQ "about 70." His diagnosis at that time was "(probably hereditary) mental deficiency, to a light or medium degree, with speech disability."

In 2000, Dr. Frank Schneider administered the Hamburg Wechsler Adult Intelligence Scales-Revised (HAWIE-R) test, the German version of the Wechsler Adult Intelligence Scales (WAIS) test, and determined the defendant’s overall IQ was 55, plus or minus 6 as the margin of error. Dr. Schneider explained that minus 6 is the margin of error for the HAWIE-R whereas minus 5 is the margin of error for the WAIS. Dr. Schneider described the defendant as "highly motivated in performing the tests" and working hard to do well. He reported that the overall IQ of 55 placed the defendant's intelligence substantially below average for his age and sex group. According to the DSM-IV, the defendant's intellectual ability falls within the category of moderate mental retardation. The Court finds Dr. Schneider's opinion persuasive.

In 2004, Dr. Helmut Kury administered the HAWIE-R and determined the defendant’s overall IQ was 39, plus or minus 15 as the margin of error. Dr. Kury also averaged the tests he administered and determined a median score of 61. Dr. Kury was initially retained by the state, but was dismissed after opining that the defendant is mentally retarded. Dr. Schneider was somewhat critical of Dr. Kury's methodology, stating that averaging the test results was improper. While the Court is not as persuaded by Dr. Kury's opinion, it does find that it supports in some respects Dr. Schneider's opinion. Dr. Schneider did not completely discount Dr. Kury's scoring because he believed that the defendant had probably deteriorated since 2000, lending further credence to the lower overall score.

The state did not present any other expert's opinion regarding the defendant's IQ score. Rather, it asserts that both Drs. Schneider and Kury must be wrong, and the defendant's low IQ score is more accurately the result of his malingering, lack of work ethic and carelessness, deterioration of communication skills, institutionalization and depression. The Court does not find this argument persuasive in light of the experts' opinions, particularly that these factors most likely contributed to the defendant's lower scores in 2004.

Applying the accepted “margin of error for the tests administered,” it is 95 percent certain that the defendant’s full scale IQ is within the range of 49 to 61. The Court finds that the defendant has established by clear and convincing evidence that he suffers from significant subaverage intellectual functioning.

Significant Impairment in Adaptive Behavior

In assessing whether the defendant has significant impairment in adaptive behavior, the Court finds Dr. Schneider persuasive. Dr. Schneider conducted multiple interviews of individuals, such as the defendant's mother and three older siblings, who were well-acquainted with the defendant over many years. He also reviewed numerous records.

A.R.S. §13-753 was not in effect when he evaluated the defendant, so his assessment is based on the AAMR's 1992 definition of mental retardation, which followed the DSM-IV definition of adaptive deficits as limitations in two or more of eleven skill areas. Nonetheless, Dr. Schneider found that the defendant had deficits in most areas. The evidence supports this finding.

All the experts agreed that based upon the documentary record and information from family members, the defendant exhibited significant developmental disabilities from an early age. The defendant's mother and siblings corroborate that the defendant was developmentally slow and talked much later than his siblings. Based on the 1966 psychological assessment, the defendant was assigned to the Special School for Educationally Impaired Children with learning disabilities. This assessment found that his mental deficiency was not based solely on his speech delay and speech impairment, but also on his intellectual disability.

The defendant was not allowed to attend the special education school until age seven based in part on his inability to communicate in a comprehensible manner. He performed poorly during his eight-year attendance, repeating several grades, and had not advanced beyond the 7th grade when he left the school at age fifteen.

After leaving school, the defendant was unable to attain gainful employment or function on his own. He was dismissed from the mandatory military service after having served less than one year. He never lived alone for any significant period of time and relied primarily on his brother Michael to take care of him. As shown by most of the state's evidence at trial, the defendant was usually accompanied by Michael or some other person during the events leading up to the murder. Most of the witnesses had little recall of the defendant's conduct, focusing more on Michael’s behavior. The trial evidence supports the theory that the scheme to marry a woman and kill her for the insurance money was devised by Michael, who convinced the defendant to participate. In summarizing the mitigation the defendant presented at his sentencing hearing, the Supreme Court noted:

“Dr. Bindelglass, the defense psychiatrist, testified that Rudi had a pattern of doing ‘almost automatically’ whatever Michael told him to do. The pattern developed because Rudi was severely beaten by his father whenever he failed to keep his younger brother, Michael, quiet and out of his father's way.” State v. Apelt, 176 Ariz. 369, 377 (1993).

The Court is mindful that it can also consider the defendant's adult institutional behavior, including his communication, social and interpersonal skills, and work, leisure and health habits in determining whether he has significant adaptive behavior deficits. State v. Arellano (Apelt), 213 Ariz. 474, ¶¶14-23 (2006). However, the Court does not give much weight to this evidence. The defendant has been in prison since 1989. While he has clearly "adapted" to prison life in that he is well-behaved, adheres to the routine, and obeys commands, these facts offer little insight into determining whether he had significant impairment in adaptive behavior before age eighteen through the commission of these offenses. The defendant is housed in the most restrictive, controlled area of the prison due to his status as a death row inmate. As the Supreme Court noted in Arellano (Apelt), the AAMR provides 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. 213 Ariz. at n.3.

In sum, the evidence shows a defendant who is unable to meet society's expectations of him. The Court finds that the defendant has proved by clear and convincing evidence that throughout his childhood and adult life he has suffered from significant impairment in adaptive behavior in meeting the standards of personal independence and social responsibility expected of a person of his age and cultural group. A.R.S. 13-753(K)(1).

Onset Before Age Eighteen

Based on the childhood records, the credible testimony of the defendant's siblings, and Dr. Schneider's assessment, the Court finds by clear and convincing evidence that the onset of the defendant’s subaverage intellectual functioning and adaptive behavior deficits occurred before he reached the age of eighteen. A.R.S. §13-753(K)(2).

Additional Evidence Supporting a Finding of Mental Retardation

The Court also finds persuasive Dr. David Coulter's neurological evaluation. The state agrees that the defendant suffers from the scalp disorder known as Cutis Verticis Gyrata (CVG) but disputes whether it adds anything to determining whether the defendant is mentally retarded. As Dr. Coulter states, CVG is "convincingly associated with mental retardation." Although it occurs in people who are not mentally retarded, it is much more common in those who are mentally retarded. This diagnosis, coupled with the evidence supporting the defendant's subaverage intellectual functioning and significant impairment in adaptive behavior, makes it more convincing that the defendant is mentally retarded.

The Court also finds persuasive the additional risk factors present in the defendant's life supporting mental retardation. Noting a possible hereditary link to the defendant's mental retardation, Dr. Schneider administered the HAWIE-R to the defendant's mother in 2000 and determined her overall IQ was 66. The state also did not dispute that the defendant suffered several traumatic brain injuries as a child. Based on an MRI of the defendant's brain in 2008, Dr. Coulter found multiple areas of damage consistent with head injuries. He noted that the MRI evidenced support of a congenital malformation of the brain, lending further support to the determination that the defendant is mentally retarded.

In conclusion, the Court finds that the defendant Rudi Apelt has shown by clear and convincing evidence that he is mentally retarded. Based upon this determination, the imposition of the death penalty is constitutionally barred in this case.

IT IS THEREFORE ORDERED granting the defendant Rudi Apelt’s Rule 32 Petition regarding his Atkins claim.

IT IS FURTHER ORDERED vacating the sentence of death.

IT IS FURTHER ORDERED setting this matter for a telephonic status conference on June 22, 2009 at 10:00 a.m. before Judge Silvia Arellano, to determine a date and time for resentencing on Count 1, First Degree Murder.

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