Arizona Judicial Branch



A disparity in the sentences of codefendants or accomplices may be a relevant mitigating circumstance.  It is not mere disparity that is significant, however, but unexplained disparity.  State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996).  Because the case law is at times contradictory, the following excerpt from a memorandum on this factor is set forth below.  If in doubt, caution dictates that evidence of this mitigating factor be admitted and/or argued.

A sentencing disparity between a co-perpetrator and a capital defendant will not be considered to be a mitigating circumstance unless it is both unexplained and significant.  For example, the first principle is illustrated in State v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985), where the codefendants received life sentences, while Gerlaugh received death.  On appeal from the denial of his post-conviction petition, Gerlaugh claimed that his counsel had provided ineffective assistance under the newly-minted Strickland standard for his failure to argue disparate sentencing as a mitigating factor at sentencing.  The supreme court rejected the claim, noting that Gerlaugh was actually the leader of his two accomplices in planning, robbing and murdering a passing motorist. (There were also other explanations for the disparity).  The court wrote, “[i]n cases wherein we have found the lesser sentence received by a codefendant to be a mitigating circumstance, there was not such a sound basis for this disparate treatment.” 

In a similar case, the court in State v. Mann, 188 Ariz. 220, 934 P.2d 784, cert. denied, 522 U.S. 895 (1997), refused to consider sentencing disparity as a mitigating circumstance where it was fully explained by the difference in the perpetrators’ degrees of culpability for a drug-related robbery and murder.  The defendant was “the instigator of the crime and the killer;” moreover, the state had granted immunity to the two co-conspirators in order to obtain their needed testimony.  Mann, 188 Ariz. at 230, 934 P.2d at 794.  See also  State v. White (White II), 194 Ariz. 344, 982 P.2d 819 (1999) (disparity justified by fact that defendant actually committed the killing); State v. Schurz, 176 Ariz. 46, 859 P.2d 156 (1993) (disparity justified by the relative culpability of the parties is given little weight).

Heinous, Cruel or Depraved:  If the murder is found to be especially cruel, heinous or depraved, “even unexplained disparity has little significance.”  State v. Detrich, 188 Ariz. 57, 932 P.2d 1328 (1997).

“Significant”- “Dramatic” - “Gross”
Even a fully explained sentencing disparity will be considered a mitigating factor – even to the point of justifying leniency - when the disparity is truly gross.  In State v. Marlow, 163 Ariz. 65, 786 P.2d 395 (1989), the defendant received death, while his co-defendant, who was originally charged with first degree murder and participated in the robbing and killing of the victim, was sentenced to only four years.   The court held that, while the prosecutor’s office had offered tactical reasons accounting for the sentencing disparity, such a “dramatic disparity” warranted leniency and life sentence.  Marlow, 163 Ariz. at 71-72, 786 P.2d at 401-02; and see State v. Lambright, 138 Ariz. 63, 75-76, 673 P.2d 1, 14-15 (1983) (court “reminds” prosecutor’s office that favorable treatment accorded an accomplice can be given mitigating weight when there is an “appalling” disparity that cannot be accounted for by plea or immunity agreement), cert. denied, 469 U.S. 892 (1984).  Compare with State v. Henry, 189 Ariz. 542, 551-52, 944 P.2d 57, 66-67 (1997) (co-perpetrator’s fifteen-year sentence was not a mitigating circumstance, where disparity was explained by fact that accomplice pleaded guilty to attempted first degree murder, and he had no prior felonies or convictions involving crimes against person, unlike the defendant), cert. denied, 523 U.S. 1028 (1998); and State v. Schurz, 176 Ariz. 46, 57, 859 P.2d 156, 167 (1993) (where co-perpetrator pleaded to lesser felony offense and testified against defendant at trial, crime was heinous, cruel or depraved, and jury rejected defendant’s accomplice theory, the disparity between defendant’s death sentence and co-perpetrator’s sentence to a term of probation  was “explain[ed] and justif[ied],” and given “little if any weight”), cert. denied, 510 U.S. 1026 (1993).

Insufficient Evidence to Charge Participant(s) with Crime:
There is conflicting case law on whether the fact that there is an uncharged co-perpetrator can be argued as a mitigating factor.  The principles to consider are (1) whether the accomplice testified or provided some benefit to the prosecution; (2) whether the accomplice pleaded to a lesser charge or admitted any culpability; (3) the State’s theory, and whether the State argued that the accomplice was equally culpable as, or less culpable than, the defendant, in the commission of the murder.

In Richmond v. Lewis, 506 U.S. 40, 44 (1992), the defendant, his girlfriend, and a female bar dancer, had lured a bar patron to a hotel so that the dancer could engage in an act of prostitution.  Once at the hotel, the dancer informed the defendant that the victim was “loaded,” and the defendant formulated a plan to rob the victim.  He informed the women of the plan, and the three accomplices drove the victim to a remote location, where he was robbed and killed.  The defendant was charged with capital murder; the girlfriend testified against the defendant and was never charged, and the bar dancer, though granted full immunity, failed to even testify. On independent review of the defendant's death sentence, the Arizona Supreme Court noted: "As mitigation the [trial] court found that both Rebecca Corella and Faith Erwin were involved in the crime but were never charged...."  The court did not further discuss this particular mitigating circumstance, and held only that "the [overall] mitigation offered by appellant [wa]s not sufficiently substantial to outweigh the aggravating circumstances."  State v. Richmond (Richmond II), 136 Ariz. 312, 321, 666 P.2d 57, 66 (1983).

But Richmond stands in contrast to State v. Gallegos, 178 Ariz. 1, 870 P.2d 1097, cert. denied, 513 U.S. 934 (1994).  In Gallegos, the defendant and an accomplice raped and killed an eight-year-old girl, then disposed of her body.  DNA evidence found on the girl linked the defendant but not the accomplice to the crime.  The defendant confessed and implicated the accomplice, who denied involvement.  Both men were indicted, but charges against the accomplice were subsequently dismissed without prejudice due to the lack of forensic evidence.  When called as a defense witness, the accomplice invoked his Fifth Amendment right.  The trial judge sentenced the defendant to death.  On appeal, the defendant claimed that the trial judge should have considered the accomplice’s uncharged status in mitigation.  The Arizona Supreme Court disagreed, stating that a disparity between the sentences of a defendant sentenced to death and an accomplice who received a lesser sentence “has no application when insufficient evidence exists to charge the other party with the alleged crime.”  The court noted that the accomplice had not entered into a plea agreement or pleaded guilty to any lesser offense.  He did not testify against the defendant and had steadfastly maintained his innocence.  Since the accomplice was “presumed innocent until … proven guilty, … his fate could not be compared to that of a convicted murderer.”  Gallegos, 178 Ariz. at 20, 870 P.2d at 1116.

From Richmond and Gallegos the possible distinctions seem to be whether there was evidence to charge the accomplice with a crime, but they were immunized or uncharged, and whether the accomplice testified at trial or in any other way aided the prosecution:  In Richmond, where at least one immunized accomplice gave important testimony, and another was obviously culpable, but immunized, the court considered that fact as a mitigating circumstance (thought it was ultimately not sufficiently weighty to call for a life sentence), and in Gallegos, where the accomplice did not confess, testify, or even plead to a lesser offense, and where there was insufficient evidence to charge him with a crime, it was not considered a mitigating circumstance.

But these distinctions are compromised by the decision in State v. (Michael) Apelt, 176 Ariz. 349, 861 P.2d 634 (1993), cert. denied, 513 U.S. 834 (1994).  In Apelt, a lesser culpable accomplice was granted full immunity in exchange for her confession and implication of the defendant in the crime, and her testimony at trial.  Notable, this accomplice gave crucial testimony.  In fact, her testimony was so key to the prosecution, that the defendant and his brother conspired to have her murdered while they were incarcerated awaiting trial.   Under the Richmond/Gallegos distinction, the court should have considered this fact in mitigation.  But neither the trial judge nor the Arizona Supreme Court did so.  Indeed, in rejecting the defendant’s appellate claim that the accomplice’s immunity should have been a mitigating circumstance, the Arizona Supreme Court stated that the “necessity of [the accomplice’s] testimony and her lesser involvement in the conspiracy and murder, her more lenient treatment is not a mitigating factor.”  Apelt, 176 Ariz. at 368, 861 P.2d at 653.  Cf. Lambright, 138 Ariz. at 75-76, 673 P.2d at 13-15 (where equally culpable accomplice was given full immunity, and accomplice’s testimony was not at all crucial to defendant’s prosecution since defendant was incarcerated and had confessed, court was deeply “disturbed” by such an “appalling” disparity and warned that such fact could be given “weight” in proportionality review; nevertheless, death sentence upheld).

Finally, in considering this issue, judges should apply the more general principles regarding mitigation – that "any relevant mitigating evidence," should be admitted - a standard bearing a "low threshold."  See Tennard v. Dretke, 542 U.S. 274, __, 124 S. Ct. 2562, 2570 (2004); and see generally, Gallegos, 178 Ariz. at 23, 870 P.2d at 1119 (“Finally, we emphasize that trial courts should not hesitate to find that evidence offered by a defendant [or presented in the record] in mitigation constitutes a non-statutory mitigating circumstance. In fact, we urge trial courts to treat all arguably mitigating evidence as a non-statutory mitigating circumstance entitled to at least some weight.”).


State v. Holsinger, 115 Ariz. 89, 563 P.2d 888 (1977)
Holsinger argued that he was denied equal protection of the law because his codefendant (his wife) was also convicted of first degree murder for the same crime, but received a life sentence. The disparity in sentences was not mitigating because the judge who had sentenced both Holsinger and his wife found that her participation was relatively minor when compared to that of Holsinger. Holsinger had the first personal contact with one of the individuals hired to murder the victim. Holsinger, not the codefendant, expressed a motive for the crime, furnished the murder weapon, promised that whoever accomplished the crime would receive something of value for committing the crime, and gave $750.00 to the hired killer.

*State v. Watson (Watson III), 129 Ariz. 60, 628 P.2d 943 (1981)
Together with other mitigation, this was sufficient to overcome the aggravating circumstances. The codefendant, Timothy Reid, received a life sentence.

State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1007 (1983)
The accomplice received life imprisonment for pleading guilty and leading authorities to the victim's body. The defendant had rejected the same plea offer. Under these facts, the Court did not consider the codefendant's life sentence to be a mitigating circumstance. Any resulting inequity between the two sentences was a consequence induced by our plea-bargaining system.

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
The Court made no real determination regarding this mitigation, but recounted what the trial court did and upheld the sentence. Rebecca Corella and Faith Erwin were both involved in the crime but were never charged.

State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983)
The Court simply recounted what evidence was presented to the trial court and then agreed with the result. The defendant presented evidence in mitigation that Kathy Foreman was granted immunity in exchange for her testimony. The Court further considered this sentencing disparity in its proportionality review. Initially, the Court determined that a more lenient sentence received by an accomplice might be considered in mitigation. However, the mere fact that a disparity exists does not prevent the imposition of the death penalty. Prosecutorial discretion exercised toward other participants in a crime does not render improper a particular defendant's death sentence. Although Foreman was not prosecuted, the Court noted that Smith, another accomplice, received the same sentence as this defendant. "While the disposition of other persons involved in the crime is an important factor in determining the proportionality of a capital sentence, the court must also consider the propriety of the sentence in relation to the disposition of persons involved in similar crimes." The Court performed a proportionality review and found that this sentence is proportional to the disposition of others involved in crimes with the same aggravating circumstance. The Court upheld the imposition of the death penalty but agreed with the trial court that the grant of immunity to Kathy Foreman was "appalling" given her involvement in the crime and the fact that her testimony was not unique or essential.

State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
After considering all the mitigation presented, including the disparate treatment of another participant in the crime, the Court found the mitigation "significant," but not sufficiently substantial to call for leniency in light of the extreme cruelty and brutality of the crime. Another participant in the crime, Kathy Foreman, testified against both Smith and his codefendant Lambright, each of whom were sentenced to death. Kathy Foreman "earned immunity for herself, avoided the death penalty and has not served even a day in jail." In a dissenting opinion, Justice Feldman noted that both the trial court and the majority were "disturbed" and "appalled" by the treatment afforded Foreman. He agreed, but was also "appalled" that in the face of significant mitigating evidence, Smith was sentenced to death on the uncorroborated testimony of a witness whose motive for lying was patent.

State v. Fisher (Fisher I), 141 Ariz. 227, 686 P.2d 750 (1984)
The defendant offered the plea agreement and sentence of his wife, Ann Fisher, in mitigation. The defendant received the death penalty while his wife was allowed to plead guilty to hindering prosecution, a class 5 felony, if certain conditions were met. One of those conditions was that if she were called as a witness in her husband's trial, her testimony would not vary substantially from previous statements. The wife claimed her 5th amendment right to not incriminate herself and did not testify at the defendant's trial. The trial court addressed statutory mitigation in its special verdict. However, the trial court did not specifically address this proffered mitigation, and simply found that there was no mitigation sufficiently substantial enough to call for leniency. The Court noted that although the trial court did not specifically address this mitigating evidence does not mean that it was not considered. The Court found no violation of Watson by the trial court. The Court stated that the trial court was not obligated under the statute to state its findings with respect to the nonstatutory mitigation.

State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984)
Chaney's codefendant, his "wife," pleaded guilty to second degree murder and other charges. She received 21 years imprisonment on the murder charge with the other sentences to run concurrently. Although she was not a minor participant, she did not initiate any of the violence nor did she direct violence toward anyone. Her role was limited to carrying out Chaney's orders. Chaney was violent towards her during their relationship, often choking and striking her. As the Court noted, she was "another of Chaney's victims." Moreover, her cooperation with the prosecution not only helped establish the case against Chaney, but her interviews with the doctors and her testimony at trial tended to refute Chaney's claim of insanity. The Court concluded that her sentence was not a mitigating circumstance in this case.

State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)
Codefendant Logan was sentenced to life imprisonment. This sentencing disparity may be a mitigating factor. The codefendant was offered and accepted a plea agreement whereby he agreed to plead guilty to first degree murder and lead searchers to the body in exchange for a life sentence. The defendant was offered a similar opportunity. Any resulting inequity between the two sentences was a consequence induced by our plea bargaining system. The defendant argues that Logan was more culpable than he is and that it is improper to sentence Logan to life and the defendant to death. The Court disagreed. Both men accused each other of wielding the rock that crushed the victim's skull. Both men had the intent to kill the victim after raping her. The question was not whether Logan should also have been executed, but whether it was lawful and appropriate to execute this defendant. The Court agreed that it was.

State v. Gerlaugh (Gerlaugh II), 144 Ariz. 449, 698 P.2d 694 (1985)
The Court determined that there was no substantial likelihood that a more lenient sentence was warranted and that this was not a mitigating circumstance. Codefendant Joseph Encinas received a life sentence without the possibility of parole for 25 years. Codefendant Matthew Leisure received two concurrent life sentences without the possibility of parole and a consecutive 25-year sentence for this murder, another unrelated murder, and an unrelated attempted murder. This contention of disparate treatment is meritless to codefendant Encinas because Encinas was much less culpable than the defendant. He was less active in the crimes, was genuinely remorseful, and was younger (18). The trial judge found that any disparate treatment did not create a substantial likelihood that a more lenient sentence was warranted. The defendant was the leader of this group, was the most culpable party, and received all the proceeds of their crimes. There was a sound prosecutorial reason to offer a plea to Leisure. Leisure's confession was suppressed. The only evidence linking him to the crime was a palm print from the victim's automobile taken months after the murder. In cases where the Court has found the lesser sentence received by a codefendant to be a mitigating circumstance, there was not such a sound basis for the disparate treatment.

*State v. Marlow, 163 Ariz. 65, 786 P.2d 395 (1989)
The Court reduced the defendant's sentence to life, finding that the "dramatic disparity" between the defendant's death sentence and his codefendant's four-year prison sentence was a substantial mitigating factor that the trial court had not weighed at all. The trial court found the codefendant's sentence was not disproportionate to the defendant's sentence because of the differing levels of evidence against each. But a probation officer had testified that in her opinion the codefendant's four-year sentence was a "travesty of justice." The defendant and codefendant were both originally charged with first degree murder. Moreover, the state requested an accomplice instruction at defendant's trial and argued an accomplice theory to the jury. A jury note indicated that the jury considered whether the codefendant, who had a prior homicide conviction, had struck the fatal blow. While the Court appreciated the difficult tactical choices that must sometimes be made by the prosecutor to obtain a conviction, it "makes no difference whether the dramatic disparity resulted from tactical considerations at trial or from who won the race to the prosecutor's door." Once the prosecution obtains such a conviction, a "disparity between the sentences of accomplices of the sort that occurred in this case must be considered and may be found as a mitigating circumstance and weighed" in determining whether to impose the death penalty.

State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)
Cook argued that the trial court failed to consider as a mitigating factor the fact that Cook's equally culpable codefendant received a twenty-year sentence as the result of a plea bargain. Although Cook never requested that the trial court consider this sentencing disparity, the record reflected that the trial judge had considered "to some extent the proceedings as they relate to" the codefendant. As a general matter, disparity in sentences is a relevant factor to be considered in weighing the appropriateness of the death penalty. Here, the Court concluded that the codefendant's twenty-year sentence was not so disproportionate to Cook's as to outweigh the aggravating circumstances present in this case.

State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991)
The defendant argued in mitigation that the codefendant received a life sentence. This could be a mitigating factor, but was not in this case. The codefendant was 16 at the time of the offense and this defendant actually executed the two women.

State v. Schurz, 176 Ariz. 46, 859 P.2d 156 (1993)
A codefendant plead guilty to attempted aggravated robbery of a different victim and was placed on probation in exchange for testifying against this defendant and dismissal of the murder charge. It is not mere disparity between the two sentences that is significant, but rather unexplained disparity. Where the disparity is justified by the relative culpability of the parties, it has been given little if any weight. In addition, where the murder is especially cruel, heinous or depraved, even unexplained disparity has little significance. The jury found the defendant guilty of premeditated murder and rejected his defense theory that it was a codefendant who actually set the victim on fire. This difference in culpability explained and justified the disparity between the two sentences.

State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
An accomplice, Anke, was given immunity. The Court noted that although the state considered offering a plea bargain to Rudi, that it did not do so, and Rudi was tried, convicted, and sentenced to death. Given the necessity of Anke's testimony and her lesser involvement in the conspiracy and murder, her more lenient treatment was not a mitigating factor.

State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)
Gallegos claimed that the victim's half-brother, George, participated in the molestation and suffocation of the victim, and the disposal of the body. The only evidence linking George to the crime was the statement of Gallegos. Although George was initially arrested with Gallegos for the crime, DNA testing of the evidence at the crime scene revealed that George could not be included as a contributor to the evidence. The state then dismissed the case against George because of insufficient evidence. Although the Court does occasionally consider sentencing disparity between codefendants as a mitigating circumstance, that consideration "has no application when insufficient evidence exists to charge the other party with the alleged crime." George did not enter into a plea agreement or plead guilty to a lesser offense, and he did not testify against Gallegos. He has at all times denied involvement in the crime. Although the defense called George as a witness at trial, and he invoked his Fifth Amendment privilege, George is presumed innocent until he is proven guilty and his fate cannot be compared to that of a convicted murderer. Moreover, if evidence is uncovered in the future that links George to this crime, he can be charged for the murder because the charges were dismissed without prejudice.

State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
The codefendant received a life sentence. The Court agreed with the trial court that this sentencing disparity was not a mitigating circumstance. The defendant was 32 years old at the time of the murder. The codefendant was 20. The defendant planned and initiated the attack. He shot the victim multiple times before the codefendant attacked the dying victim with a machete. He bragged to a friend about how he fired the rifle multiple times and described how he had plotted the murder. The defendant committed this crime while on parole for three prior felony convictions, one of which was for a violent assault. The codefendant's life sentence was not a mitigating circumstance.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
The twenty-year sentence negotiated by Stokley's codefendant was the result of a disparity of evidence at the time of the codefendant's trial, causing the state to enter into a plea agreement with the codefendant. Where the difference in codefendants' sentences is the result of appropriate plea bargaining, it will not be considered mitigating. In addition, the codefendant was twenty years old and Stokley was thirty-eight years old.

State v. Jackson, 186 Ariz. 20, 918 P.2d 1038 (1996)
A codefendant, Hernandez, entered into a plea agreement for 10-20 years in prison. The defendant argues that his death sentence was so disparate to Hernandez' sentence that it violates the Eighth Amendment. Little, if any, significance is given to a disparity in sentencing that is justified by the relative culpability if the parties. The defendant was much more culpable than Hernandez. The defendant approached the victim, drove the car, ordered the victim out of the car, held the gun on her, and shot and killed her.

State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)
The trial court found that the codefendant's disproportionate sentence was a mitigating circumstance and gave it "significant" weight, but concluded that the mitigating evidence in this case was not sufficiently substantial to require leniency. The codefendant was given a plea agreement by which she pleaded guilty to second degree murder and agreed to testify against the defendant. There was no further analysis or discussion of this finding.

State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)
The defendant claimed that he did not commit the murders and that his brother's acquittal should be a mitigating circumstance. Unexplained disparity between codefendants can be a mitigating circumstance. Here, the disparity was not unexplained. A jury acquitted the codefendant and a different jury convicted this defendant. This was not a mitigating circumstance.

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)
Miller's codefendant pleaded guilty to first degree murder and was sentenced to life imprisonment. The trial court found this mitigating, but not sufficiently substantial to call for leniency. Miller argued that the codefendant's life sentence rendered his death sentence fundamentally unfair. The Court disagreed, noting that a difference in sentences between codefendants through appropriate plea bargaining is not mitigating. Moreover, the murder was especially cruel, heinous, or depraved, making Miller's sentence appropriate notwithstanding the codefendant's less severe sentence.

State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
The defendant argued that the trial court did not properly consider codefendant Amaral's life sentence in mitigation. The trial court did not find that this was a significant mitigating factor. Sentencing disparity can be a mitigating factor. It is not mere disparity that is significant, however, but unexplained disparity. The disparity is explained by the fact that the defendant was 26 years old at the time of the murder, and Amaral was 16 years old. Amaral received a life sentence because of his plea agreement with the state also. There was no error in refusing to give mitigating weight to Amaral's sentence.

State v. Detrich (Detrich II), 188 Ariz. 57. 932 P.2d 1328 (1997)
Detrich argued that the disparity between his codefendant's sentence of 10 ½ years for kidnapping and his death sentence for murder constituted a mitigating circumstance. The Court found that "the trial judge properly disregarded the disparate sentences as a mitigating factor." When the disparity between codefendants' sentences results from an appropriate plea agreement with one of the defendants, the disparity is not considered a mitigating circumstance. Mere disparity between two sentences is not significant, but an unexplained disparity may be mitigating. If the murder is found to be especially cruel, heinous, or depraved, "even unexplained disparity has little significance." Here, the codefendant received a lesser sentence in part because he entered into a plea agreement by which he pleaded guilty to kidnapping and was required to give truthful testimony against Detrich. Most importantly, the codefendant was much less culpable than Detrich (the codefendant testified that he was driving the car while Detrich sexually assaulted the victim and slit her throat). The disparity in sentencing in this case was "explainable and understandable."

State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997)
Disparity between the sentences imposed on a defendant and an accomplice can be a mitigating factor in deciding if a death sentence is appropriate. Disparity is mitigating only when it is unexplained. The disparity was primarily explained by the difference in culpability and because the state granted immunity to Miller and Alejandro to obtain testimony necessary to any prosecution for the killing. The defendant was the instigator of the crime and the killer. Karen Miller was an active participant in the drug rip-off scheme who reported the crime four years after it occurred. She was granted immunity and never charged with any crime in connection with the case.

State v. Henry (Henry II), 189 Ariz. 542, 944 P.2d 57 (1997)
Henry claimed that the trial court improperly refused to find the disparity between his death sentence and his codefendant's 15-year sentence as a mitigating circumstance. The Court noted that the same judge presided over both cases. After the codefendant's trial ended in a hung jury, he accepted an offer to plead guilty to attempted murder and was sentenced to fifteen years in prison. An unexplained disparity between sentences may constitute a mitigating circumstance and, as Henry correctly asserted, plea-bargaining will not always be a sufficient explanation for gross differences in punishment. Here, however, the judge noted that unlike Henry, the codefendant had no prior felonies or convictions involving crimes against persons. The codefendants' distinct criminal backgrounds were sufficient to justify the disparity in penalties.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
The defendant argued that his death sentence was disproportionate to life sentences imposed in other cases. The Court has discontinued proportionality reviews and the argument was without merit.

State v. White (White II), 194 Ariz. 344, 982 P.2d 819 (1999)
Unexplained disparity can be a mitigating factor. However, where the defendant actually commits the killing, the disparity between coconspirators is explained. The Court has already looked at this issue in the first review of the sentence. The only new evidence was testimony that codefendant Susan Johnson was the mastermind of the plan to murder her new husband. The trial court focused on the fact that the defendant was the triggerman in determining that disparity in sentencing was not sufficient as mitigation. The Court agreed. See Chief Justice Zlaket's dissent for his viewpoint that the disparity was not explained.

State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
Only an unexplained disparity may be a mitigating circumstance. Here, the disparity was explained. Carrico was not charged, and Langston plead guilty. The defendant was the killer. The state felt that a plea agreement with Langston was necessary because the case against him was weak while the case against the defendant was strong.

State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999)
A disparity in sentencing can be a mitigating circumstance where there is no reasonable explanation for that disparity. The Court agreed with the trial court that there was an explanation in this case. Just like in Mann, the State entered into a plea agreement with an accomplice and presented substantial evidence that the defendant was the instigator of the murder and the actual killer. This mitigating circumstance was not proven by a preponderance of the evidence.

State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)
The codefendant was the defendant’s sixteen-year-old brother-in-law who received a natural life sentence. While there is a sentencing disparity, the Court concluded that it was explained by the difference in actual culpability. The defendant announced his intent to commit the crime. He had the gun at the time they both were arrested. He took control of the encounter with witnesses at the accident scene the morning after the murder, and he masterminded the plan to carjack and steal the vehicle. The dissent noted that there was insufficient evidence to determine who actually committed the murder, and that the sentencing disparity was not adequately explained.

State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001)
Proportionality review is not required in a death penalty case. In addition, because no one else was charged in the murder, there was no basis for comparing the defendant’s sentence to that of another participant.

State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
The actual killer got a life sentence. The defendant, who hired the killer and facilatated the murder, received a sentence of death. This sentencing disparity deserved some weight in mitigation.

State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111P.3d 639 ( 2005) Jury Trial/Indep. Review
Anderson’s childhood troubles did not explain his decision, “decades later at age forty-eight, to kill three innocent people to steal a pickup.”

State v. Harrod ("Harrod III"), 218 Ariz. 268, 183 P.3d. 519 (2008)
The fact that the person who apparently hired the defendant to commit the murder was not charged was not a mitigating circumstance where “the State apparently has concluded that it does not have sufficient admissible evidence to proceed against him.” ¶58 citing Ethical Rule 3.8.

State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010)
The co-defendant received a life sentence pursuant to a plea agreement. He was in ill health and died less than two months after sentencing. The Court accorded minimal weight to the sentencing disparity because the State’s decision is well-supported by the record.