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State v. Grell4/1/2003
of "premeditation" adopted by the legislature in 1998 renders Arizona's premeditated murder statute unconstitutional. See A.R.S. § 13-1101(1) (2001). Grell contends that the legislature eliminated any distinction between first and second degree murder when it added the phrase "proof of actual reflection is not required" to the definition of premeditation. Compare A.R,S. § 13-1104(A) (2001) (second degree murder) with A.R.S. § 13-1105 (A) (1) (Supp. 2002) (first degree murder).
As Grell points out, proof of actual reflection has long been required to prove first degree murder in Arizona. See Macias v. State, 36 Ariz. 140, 149-50, 283 P. 711, 715 (1929) (holding that first degree murder requires proof that "a plan to murder was formed after the matter had been made a subject of deliberation and reflection"); State v. Willoughby, 181 Ariz. 530, 539, 892 P.2d 1319, 1328 (1995) ("Premeditation is established by evidence of a plan to murder formed after deliberation and reflection.") . But after the court of appeals explicitly required proof of reflection in State v. Ramirez, 190 Ariz. 65, 69, 945 P.2d 376, 380 (App. 1997) , the legislature reacted by amending the statute to say that "proof of actual reflection is not required."
Thus, Grell argues, if, as this court has previously held, premeditation can be proven solely by a passage of time "as instantaneous as successive thoughts of the mind," Macias, 36 Ariz. at 149-50, 283 P. at 715, then there can be no meaningful distinction between first and second degree murder. Accordingly, the first degree murder statute under which he was convicted is unconstitutionally vague.
We considered this issue in State v. Thompson, 395 An:. Adv. Rep. 6 (Mar. 12, 2003), and concluded that A.R.S. § 13-1105 (A) (1) is not unconstitutionally vague because proof of reflection is required by the statute. Id. at 9-10, 27. The legislature's intent in adding the phrase "proof of actual reflection is not required" to the definition of premeditation was to relieve the State of the burden of proving with direct evidence the subjective thought process of a first degree murder defendant. Id. Rather, the State may prove reflection through circumstantial evidence; indeed, under most circumstances the State will have only circumstantial evidence at its disposal. Id. at 10, 31. In Thompson, we distinguished between the element of premeditation and the evidence that tends to establish that element (including, among other things, the passage of time) . Id. 29.
Despite upholding the statute, we disapproved the use of the phrase "proof of actual reflection is not required" in jury instructions, and we discouraged the use of the phrase "as instantaneous as successive thoughts of the mind." Id. 32. We noted our concern that "juries could be misled by instructions that needlessly emphasize the rapidity with which reflection may occur." Id.
In Grell's case these concerns do not exist. There are no jury instructions at issue; his case was submitted directly to the trial court. More importantly, there is overwhelming evidence of premeditation. At his April press conference, Grell stated, " hen I got to Mesa is when I decided to do it." He elaborated: "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." Thus, Grell's statement that he "decided to do it" and his behavior after that decision make this one of those rare cases in which the State had at its disposal direct evidence of actual reflection. Even without Grell's statements, there is overwhelming circumstantial evidence of reflection. Grell's actions that evening - purchasing a ga
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