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MITIGATING CIRCUMSTANCES
Pursuant to A.R.S. § 13-751, each death sentence must rest on two findings: proof beyond a reasonable doubt of at least one aggravating circumstance set forth in A.R.S. § 13-751(F), and a finding “that there are no mitigating circumstances sufficiently substantial to call for leniency.” A.R.S. § 13-751(E). Mitigation is defined by our statute as evidence relevant to “any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense.”
Statutory & Non-Statutory Factors: In contrast to aggravation, mitigating circumstances are not limited to those set forth in A.R.S. § 13-751(G). Thus, if the defendant’s evidence of intoxication fails to satisfy the enumerated mitigating circumstance (G)(1), it may be considered as a “non-statutory” mitigator. See, e.g., State v. Carreon, 210 Ariz. 54, 69-70, ¶¶ 75-80 107 P.3d 900, 915,16 (2005) (court first rejects drug impairment under (G)(1), then rejects it as a non-statutory mitigator); State v. Murdaugh, 209 Ariz. 19, 97, 97 P.3d 844, 860 (2004) (same).
Relevant Mitigation: The U.S. Supreme Court has made plain that a sentencing jury may not be precluded from considering “any relevant, mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (citing to Penry v. Lynaugh, Eddings v. Oklahoma, and Lockett v. Ohio). Recently in Tennard v. Dretke 542 U.S. 274, __, 124 S. Ct. 2562 (2004), the Court reiterated that relevance in the context of capital mitigation is a “low threshold” and that such evidence is that “‘which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.’” __U.S.__, 124 S. Ct. 2562, 2570 (June 24, 2004) (quoting State v. McCoy, 372 S.E.2d 12, 45 (N.C. 1988) (dissent)). A court should consider “whether the evidence is of such a character that it ‘might serve “as a basis for a sentence less than death.”’” Id. at 2571 (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)). [Note that Tennard was written by Justice O’Connor, who wrote in her concurrence in Franklin v. Lynaugh, infra, that she does not believe that residual doubt is relevant evidence.] While not specifically defined, the Court has indicated that matters bearing on a defendant’s “character” or “record,” or concerning the “circumstances of the offense” are relevant and cannot be taken out the realm of sentencing consideration. Lockett v. Ohio, 438 U.S. 586, 604 (1978); accord Johnson v. Texas, 509 U.S.350, 362 (1993). An example recently given by the Court of irrelevant evidence is the frequency with which a defendant showers in jail, while records showing his good behavior in jail would be relevant. Tennard, 124 S. Ct. at 2571. The evidence need not be causally connected to the crime, itself. Id. at 2570-71.
But while there are “virtually no limits [] placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances,” Tennard, 124 S. Ct. at 2570 (quoting Eddings. v. Oklahoma, 455 U.S. 104, 114 (1982)), this is not to say that the State cannot place parameters on the jury’s consideration of mitigation. The Supreme Court has never held that “jury consideration of mitigating evidence must be undirected or unfocused,” Franklin v. Lynaugh, 487 U.S. 164, 181 (1988), or that the State has no role in “structuring or giving shape to the jury’s consideration of [] mitigating factors.” 487 U.S. at 179; accord Boyde v. California, 494 U.S. 370, 376 (1990) (The State may require the jury to impose death if it finds that the aggravators outweigh the mitigation). Thus, in Boyde the Court approved a state trial court’s use of a list of factors for the jury’s consideration, including aggravating and mitigating circumstances along with a “catch-all” mitigating circumstance, and in Buchanan v. Angelone, supra, it approved the court’s decision to not enumerate mitigating factors, but rather charge the jury with imposing a sentence based upon “all the evidence.”
Instructions: There is no federal constitutional obligation to instruct the jury on how to consider mitigating evidence in light of aggravating evidence, or whether the jury should consider particular mitigating factors. Thus, for example, it is permissible to tell the jury to make its sentencing decision based upon “all the evidence,” without further instruction. Buchanan, 522 U.S. at 275-77. However, post-Ring, Arizona trial courts have uniformly provided both a weighing instruction and a list of the defense’s proposed mitigating circumstances in their jury instructions, including a “catchall” instruction allowing for the consideration any other factor that the jury deems mitigating. See A.R.S. § 13-751(E) & (G).
In assessing a proposed instruction, the trial court should ask, “whether there is a reasonable likelihood that the jury [will] appl[y]] the instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. The court need not consider how a “single hypothetical ‘reasonable’ juror could or might interpret the instruction,” since jurors “do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” 494 U.S. at 380-81.
(G)(1): Use of the precise statutory language as set forth in 13-751(G) as the mitigation factor instruction was approved by Arizona Supreme Court in regards to (G)(1). Carreon, 210 Ariz. at 69, ¶ 77, 107 P.3d at 915.
Nexus Language: In State v. Frank Winfield Anderson, 210 Ariz. 327, 111 P.3d 369 (2005), the court noted with approval the fact that the trial court did not instruct the jury that it had to find a “nexus” between the proffered mitigation evidence and the defendant’s crime. It cited with approval the more general instruction given in that case that the jury was to consider any mitigation they found “relevant in determining whether to impose a sentence less than death.” See Frank Anderson at ¶ 94.
Argument & Causal Nexus: It is not improper to allow the State to argue that there is no causal relationship between the mitigation and the crime. As the Arizona Supreme Court noted recently in Anderson, though various Supreme Court decisions “dictate a liberal rule of admissibility for mitigating evidence, they still leave it to the sentencer to ‘determine the weight to be given to relevant mitigating evidence.’” Anderson at ¶97 (quoting Eddings v. Oklahoma). See State v. Newell, 212 Ariz. 389, 405, ¶ 82, 132 P.3d 833, 849 (2006) (“We do not require that a [causal] nexus between the mitigating factors and the crime be established before we consider the mitigation evidence. But the failure to establish such a causal connection may be considered in assessing the quality and strength of the mitigation.”)
Cases where the death sentence was reduced have been marked with an *.
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