A.R.S. § 13-751(G)(3) provides that it shall be a mitigating circumstance where “[t]he defendant was legally accountable for the conduct of another under the provisions of A.R.S. § 13-303, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution.”
History: This circumstance was among the original mitigating circumstances enacted by the Arizona Legislature in 1973. It encompasses situations in which the defendant’s responsibility for the murder is sufficient to support conviction, but may nonetheless be attenuated by the degree of his participation. See Model Penal Code § 210.6 (1980).
(G)(3) Compared to the Enmund/Tison Finding (status as “accomplice” versus threshold level of intent)
The issue of felony murder liability as a mitigating circumstance is closely related to this mitigating factor, and often both are asserted in cases where the murder conviction might have been based on felony murder liability. There are, however, some differences. The (G)(3) circumstance applies only in accomplice liability cases. By the statute’s very language, the (G)(3) circumstance applies to instances where a defendant is held legally accountable under A.R.S. § 13-303 for the conduct of another. The key issue is whether the defendant’s participation was relatively minor vis-à-vis the other participants.
But felony murder liability may exist in cases involving not only accomplices, but situations where a defendant was the sole actor, making accomplice liability a non-issue. In such cases, the evidence may establish only that the defendant had the intent to commit a felony (e.g. armed robbery or sexual assault), and in the course or furtherance of committing the felony the defendant caused the death of the victim. The potential mitigating value there lies in the possibility that the defendant lacked the intent to kill, and not that the (G)(3) mitigating circumstance applied.
The reason for this intertwining of (G)(3) and felony murder issues is that, in 1973, at the time the (G)(3) mitigating circumstance was enacted, the United States Supreme Court had not yet issued its decisions in Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), which established a culpability floor of “recklessly indifferent to human life” for capital defendants who did not themselves kill the victim but were convicted of felony murder for their actions. Pursuant to Enmund/Tison, unless the trier of fact finds that the defendant convicted of felony-murder acted with at least this minimum level of intent, he cannot be subjected to the death penalty. Therefore, the (G)(3) mitigating circumstance provided a means for a sentencing court to find that a death sentence was not appropriate for a relatively minor participant, who nonetheless was held accountable for first-degree murder as an accomplice.
In today’s post-Enmund/Tison world, a relatively minor participant often is excluded from death eligibility on the basis of the Enmund/Tison threshold finding.
(G)(3) Compared to the Felony-Murder Non-Statutory Circumstance:
Although the Enmund/Tison analysis may largely control the analysis of the (G)(3) mitigating circumstance, the same may not be said about the use of the fact of felony murder as a non-statutory mitigating circumstance. For example, where a defendant’s conviction is based on felony murder liability, but he was the sole actor and is not being held accountable for the acts of another, the Enmund/Tison standard is met because the defendant caused the death of the victim, or “actually killed.” But it is still possible that the defendant lacked the intent to kill, which may be a mitigating circumstance. Likewise, where death eligibility has been established by the Enmund/Tison standard in a case where the defendant did act with accomplices but did not, himself kill, the felony murder circumstance can be argued to show that he was not as bad as the accomplice who actually killed. See State v. Henry, 189 Ariz. 542, 558, 944 P.2d 57 (1997).
State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981)
There was no evidence from which the trial court could determine that this defendant's involvement was relatively minor. The defendant argued that there was no evidence of his actual participation and that this met his burden of proof. The Lyons family and Theresa Tyson were shot in the desert for their automobile so that it could be used by the defendant and his codefendants to escape the authorities after their prison breakout. The Court noted that the burden of proof of mitigating circumstances is not met by the lack of proof, but by the production of some evidence from which it could be inferred that the defendant's participation was minor. The Court has already rejected the contention that the state must assume the burden of proving the nonexistence of mitigating circumstances.
State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
The Court agreed with the trial court that Tison's participation in the murders was not relatively minor. His participation in the crimes was substantial. Tison and his brother planned their father's escape from prison for months. They gathered an arsenal of lethal weapons that were used against others in the prison breakout. Those weapons later were used to kidnap, rob and murder the victims. Tison and his brother stated that the murders were actually committed by their father and Randy Greenawalt. Even so, Tison's participation up to the moment of the firing of the fatal shots was substantially the same as that of the father and Greenawalt. Although Tison's participation at the moment of firing may not have equaled that of his father and Greenawalt, his standing and watching them, while armed himself, cannot be characterized as relatively minor participation. The deaths would not have occurred but for his participation.
State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
The defendant argues his minor participation in the murders was mitigating. He joins with his brother in arguing that neither of them was involved in the actual shooting of the victims. Neither one intended the deaths of the victims. The Court notes that this is not controlling as both brothers took part in the robbery and kidnapping, and assisted in the detention of the victims while the murders were committed.
State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
The Court agreed with the trial court that Smith's participation in the murder was not minor. The record supported the trial court's finding that Smith was a major participant in the crime. Along with his codefendant Lambright, Smith planned the murder, premeditated it, and consummated the act. The Court found that Smith actually killed and intended to kill.
State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984)
The Court agreed with the trial court that Libberton's participation in the crime was not minor. After beating the victim, Libberton and his codefendant James agreed that the only thing to do was to kill him. Libberton also agreed to hide the body in a mineshaft and pointed a gun at the victim during the trip to the mineshaft. When the victim was struggling with James over the gun, Libberton struck the victim with a rock. As the victim lay on the ground, Libberton pointed and fired a gun at the victim's head from close range. He then slammed large rocks into the victim's head, and finally, helped throw the victim into a mineshaft. These facts establish beyond a reasonable doubt that Libberton intended to kill the victim and he was a major participant in the crime.
State v. Martinez-Villarreal, 145 Ariz. 441, 702 P.2d 670 (1985)
The defendant claimed in his statements to the police that he acted only as a lookout and was forced to drive the victim's truck. He said that someone else had gone berserk during the robbery of the two men on the ranch. The jury rejected this in its verdict. The trial judge also rejected this claim in his finding that the defendant intended to kill by himself or through his companion. The defendant had bragged to a friend that he had killed because he was very "macho."
State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986)
Correll argued that his participation in each of the three murders was so minor as to warrant leniency. He argued that he had not personally killed two of the victims and that he did not participate at all in the killing of the third victim. The Court found that Correll intended that two of the victims be killed, and he played a major role in those murders, even though he did not do the actual killing. Regarding the third victim, the evidence established that Correll did not actually kill or attempt to kill and there was insufficient evidence to support a finding beyond a reasonable doubt that he intended to kill that victim. As a result, the Court found the Enmund finding as to the third victim unsupported by the evidence and modified that sentence to life imprisonment.
State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)
Washington maintains that his participation in the crime was minor. However, the defendant gave a post-arrest statement indicating that he was advised by Robinson prior to going to the Hills' home that the mission was to steal cocaine and money from a drug trafficker and that it might be necessary to kill the residents. The defendant carried a .38 caliber handgun into the Hills' home, helped ransack it, and did nothing to prevent the killing of Sterleen and the shooting of Ralph. This defendant was not a minor participant.
State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991)
There was no evidence that the defendant's participation in the crime was minor.
State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992)
The Court agreed with the trial court's finding that Salazar was a major participant in the crime. Salazar testified that he left the victim's house before the murder, which was committed by his codefendant. But physical evidence negated Salazar's attempt to minimize his degree of participation in the crime. Fresh scratches were observed on Salazar's chest shortly after the murder and Salazar's fingerprints, in what appeared to be blood, were found in the house.
State v. William Herrera, Sr., 176 Ariz. 9, 859 P.2d 119 (1993)
The defendant's participation in the kidnapping and murder of Deputy Marconnet was substantial. In its discussion of (F)(6), the Court reviewed the defendant's actions during the crime. The defendant was actively engaged in causing the victim pain and anguish. He participated with his sons in physically overpowering the victim, and forcing him to lay on the ground unarmed. He intended to kill the victim by commanding his son to shoot the victim. The Court found no error in the trial court's findings.
State v. William Herrera, Jr., 176 Ariz. 21, 859 P.2d 131 (1993)
The defendant argued that his participation in the murder was relatively minor and that it was a mitigating circumstance under (G)(3). The Court disagreed, finding that he was not a minor participant in these events. The defendant and his brother purposely attacked the officer and disarmed him. The two of them together committed the aggravated robbery. After his brother gained control of the gun and held it on the officer, the defendant shouted, "shoot him" to encourage his brother to carry out the crime.
State v. Rudi Apelt, 176 Ariz. 369, 861 P.2d 654 (1993)
The defendant alleges that his participation in this crime was minor. On the contrary, his proposal of a secret marriage to Annette shows that he and Michael were plotting, long before Cindy's murder, to find a woman to marry one of them so they could insure her and kill her. In addition, his reservation of a rental car with the large trunk in early December indicates that he was in league with Michael. He and Anke played along with Michael that they had returned to Germany and never interacted with the victim when in fact they saw Michael every day. The defendant was convicted of conspiracy to commit murder. The Court cannot conclude that the defendant's participation was minor.
The defendant's other mitigation arguments are variations on this same theme. The defendant argued that he was under duress, he was convicted as an accomplice and his participation was minor, he felt great remorse over his inability to stop Michael from killing the victim, he had a good possibility of rehabilitation if separated from Michael, and he had shown a great concern for others and had sporadically attempted to thwart Michael's plans. All of these arguments, presented through the testimony of the defense psychiatrist, revolve around his claim that he was Michael's pawn, unaware of Michael's intentions until shortly before the murder and unable to resist Michael's influence at that time. There is no evidence to support that other than the testimony of the defendant.
State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
The Court adopted the findings of the trial court that the defendant's participation was not minor. Although the defendant was accountable for the conduct of his codefendant, this defendant's participation was not minor. The defendant's conduct and planning resulted in the victim's murder.
State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Stokley argued on appeal that the trial court should have considered the (G)(3) mitigating circumstance, "given the overwhelming possibility that the jury's guilty verdict was based upon the felony-murder theory." But, as the Court noted, the trial court did not instruct the jury on felony murder, and the jury found Stokley guilty of two counts of first degree premeditated murder. Stokley brutally killed one victim and intended that the other one be killed. His actions were substantial.
State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Roger failed to show by a preponderance of the evidence that he was a minor participant in the crimes. The trial court concluded that Roger and Robert acted in concert, considering the footprint evidence, the fact that both defendants were armed at the time of arrest, and that the victims suffered numerous bullet wounds from different weapons.
State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
The defendant argued that another individual participated in these crimes. This was not proven. See discussion under duress section.
State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)
This claim was unconvincing and contrary to the overwhelming weight of the evidence. This defendant and a codefendant kidnapped, robbed and murdered the victim. The defendant actually hit the victim on the head with a rock which fractured his skull.
State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)
The defendant was physically present at the Joyland Market when the burglary and the murders occurred. He was an active participant. The jury found him guilty of premeditated first degree murder. Minor participation was not proven.
State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
The defendant argued that he was an accomplice and only a minor participant in the murders. The Court rejected this argument and noted that it believed that the defendant was a major participant in the crime. The robberies were premeditated, planned on and agreed to by both the defendant and Amaral. The defendant furnished the gun to Amaral or knew Amaral had the weapon with him for the robberies. The defendant drove Amaral to the scene, picked him up after the crime, witnessed the destruction of evidence and did not report the crimes. All of these facts indicate that the defendant was a major participant.
*State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
Although there was no proof that Trostle shot and killed the victim, the evidence conclusively showed that he was a major participant in the murder. Trostle's own statements to police supported a conclusion that he was not a minor participant. He said that he intended to help steal the victim's truck and knew from the beginning that its owner would likely be killed, that he tied the victim up and told her to kneel prior to being shot, and that he kept her quiet in the desert when the reservation police officer stopped to investigate. Trostle's claim that his role was minor compared to the codefendant's failed to qualify as mitigating circumstance under A.R.S. §13-751(G)(3), or as nonstatutory mitigation.
State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
The defendant argues that the fact that codefendant Langston was the mastermind of the killing should be a nonstatutory mitigating factor. The Court was not persuaded that this fact is mitigating.
State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
The defendant argued that the primary evidence against him at trial came from unreliable witnesses. He argues that it is possible that his codefendant did all the killings and blamed it on the defendant. The Court agreed with the trial court that (G)(3) had not been proven as surviving witnesses at the Moon Smoke Shop testified that the two suspects were shooting at different times in different places. The jury found sufficient credible evidence to convict the defendant. The defendant was not a minor participant in these murders.
State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)
The defendant was a major participant in the murder. The jury found him guilty of premeditated murder. There was no evidence in the record that his participation was minor.
State v. Ring, 200 Ariz. 1139, 25 P.3d 717 (2001)
The Court agreed with the trial court that the defendant was the shooter and major participant in the crime. The circumstance, however, is inapplicable because the defendant claimed to have not participated in the crime at all.
State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001)
Because of evidence proving the defendant was the contract killer of a wealthy heiress, there was no evidence to support this factor.
State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002)
The defendant initiated the robbery/murder by opening fire into a bar full of customers. In response, two patrons tried to flee, but the co-defendant shot and killed one of them. Because defendant’s conduct recklessly endangered human life, he failed to prove minor participation.
State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
The defendant’s participation was not minor. She planned the murder of her mother-in-law to gain access to her trust and annuity, hired the killers, gave them money for gloves, a key and a ride to the victim’s apartment, and waited for them to return.
State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111 P.3d 369 (2005) Jury Trial/Indep. Review
Given Anderson’s “substantial role in each of the murders,” the court rejected the characterization of his participation as “minor.”
State v. (Patrick Wade) Bearup, 221 Ariz. 163, 211 P.3d 684 (2009)
Although Bearup did not strike the death blows, the evidence showed that he was not a minor participant in the crimes.
State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010)
Garcia failed to establish this statutory mitigator because circumstantial evidence established that he was actively involved in the murder.
State v. (Shawna) Forde, 233 Ariz. 543, 315 P.3d 1200 (2014)
Defendant argued that the following mitigation evidence called for leniency: (1) she was a relatively minor participant in the murders, see A.R.S. § 13–751(G)(3); (2) her co-conspirators manipulated her involvement in the murders, which she did not foresee; (3) she suffered a very troubled childhood marked by sexual and physical abuse, abandonment, and teenage prostitution; and (4) she suffers from neuropsychological impairments, which stemmed from her traumatic childhood and a stroke suffered in 1996. The Court held that she was neither a minor participant nor was she manipulated to participate in murders that she did not foresee, as determined by the Enmund/Tison finding. Even had the jury found that she experienced a troubled childhood and suffered neuropsychological impairments (from her traumatic childhood and a stroke in 1996), the jury did not abuse its discretion in determining that there was not substantial mitigation sufficient to call for leniency.
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