Search 

Azcourts.gov

Arizona Judicial Branch

DRUGS / ALCOHOL

A.R.S. § 13-751(G)(1)-DRUGS/ALCOHOL IMPAIRMENT

State v. Sylvester Smith,
125 Ariz. 412, 610 P.2d 46 (1980)
The trial court found that the defendant's consumption of alcohol was not such as to significantly impair his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law. The Court agreed with this assessment.

State v. Ceja (Ceja III), 126 Ariz. 35, 612 P.2d 491 (1980)
The defendant argued that his marijuana use and paint sniffing damaged his brain such that it constituted significant impairment. Both experts testified that the defendant did not have any brain damage. In fact, one expert indicated that the defendant is bright, in possession of all his faculties, and is adjusting to his current situation. This is not the slow, dull, brain-damaged individual with significantly impaired mental capacity.

State v. Jordan (Jordan II), 126 Ariz. 283, 614 P.2d 825 (1980)
The defendant's girlfriend testified about the defendant's alcohol and drug consumption around the time of the murder. She indicated that the defendant drank at least two bottles of wine daily and took varying amounts of "downers" and "speed." He would start drinking and taking drugs after lunchtime and would be "goofy" by evening. She testified that she was not with the defendant at the time of the crime and she last saw him about four or five o'clock that afternoon. The crime occurred between 5:45 and 6:45 p.m. The girlfriend testified that the defendant had not been drinking too much that day but had been taking more pills. The defendant's intoxication to some degree is not, by itself, a mitigating circumstance. The Court looked to whether the defendant's intoxication significantly impaired his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The girlfriend's testimony falls short of proving the necessary degree of impairment from intoxication. His mumbling when she left him on the day of the crime does not describe how defendant's intoxication affected his conduct. Her testimony is inexact about the level of the defendant's intoxication on that day. The defendant did not mention the influence of drugs or alcohol in his confession, nor did he testify at his sentencing hearing. This was insufficient evidence to prove this mitigating circumstance.

State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981)
The defendant argued that he was extremely intoxicated and was an alcoholic at the time of the murder. Whether a defendant's intoxication or alcoholism at the time of the murder can be considered a mitigating circumstance depends on whether it significantly impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The defendant's wife testified that he was showing no effects of alcohol when he arrived at the murder scene. The defendant's testimony that he was "feeling the effect of alcohol" at the time of the murder failed to show the degree of impairment from intoxication that would constitute a mitigating circumstance.

State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1983)
Intoxication itself is not a mitigating factor. Whether the intoxication would be a mitigating circumstance depends on whether a defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired. Here, the evidence did not show an exact amount of intoxication but only that he was mumbling. The record also contained contradictory evidence. Witnesses saw him the night of the murder and testified that he did not appear drunk. A police officer saw him with a beer in his hand the evening of the murder and testified that the defendant had no trouble walking or talking. After the crime, the defendant also gave a statement to the police in which he said he had known what he was doing.

State v. Gretzler (Gretzler III), 135 Ariz. 42, 659 P.2d 1 (1983)
The defendant started using drugs from the age of thirteen to escape the pressures of his home environment and continued to use them for a period of nine years. There was medical testimony that this continuous use of drugs likely impaired his volitional capabilities. The defendant can distinguish right from wrong and can exercise control over his behavior. The defendant's mental capabilities were significantly, though partially, impaired.

State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22 (1983)
Zaragoza argued that he was an alcoholic and "probably intoxicated" at the time of the murder. The Court found the evidence fell far short of showing that his alcoholism or intoxication at the time of the murder significantly impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The evidence established that he purchased a pint of port wine and a can of beer on the evening of the murder; that he and the victim were seen drinking beer some time that evening; and that the victim's blood alcohol level was .02. At best, this evidence suggested that Zaragoza drank the better part of a pint of wine and a can of beer on the evening of the murder. It does not begin to establish that he was intoxicated or that his capacity was impaired. Moreover, there was evidence suggesting that his capacity was not impaired. A witness observed him climbing up on a utility box, using a rake to pull clothing off a nearby roof, and throwing two bloody beer bottles and a bloody wine bottle onto the roof. His attempts to dispose of evidence of the crime suggest he appreciated the wrongfulness of his conduct.

State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983)
The Court agreed with the trial court's finding that although Jeffers was drinking and using narcotics on the day of the murder, there was no credible evidence of any significant impairment of his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The trial court did consider the defendant's drug intoxication from having ingested heroin on the day of the murder. But a defense psychiatrist had testified that heroin has the effect of calming people. Other evidence showed that long-term users like Jeffers develop a tolerance to the effects of the drug. Further, a witness testified that Jeffers had not used an excessive amount of heroin, by his standards, on the day of the murder.

State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1007 (1983)
Voluntary intoxication is a mitigating circumstance if the defendant's capacity to appreciate the wrongfulness of his conduct was significantly impaired. A witness testified that the victim bought the two men some beer and the two men had been drinking before the victim arrived. It was never argued at trial that the defendant was intoxicated. Nor was any evidence presented at the sentencing hearing that the defendant was intoxicated or had a mental disorder. The defendant controlled the victim for eight hours. There was no evidence to show that this mitigating circumstance existed.

State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984)
The defendant claimed that on the day of the murder, he was under the influence of LSD. The evidence of drug ingestion was not refuted, but also was uncorroborated. The record revealed that on the night of the murder the defendant's capacity was not impaired. This mitigating circumstance was not established.

State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)
The defendant claimed he had taken drugs and alcohol on the day of the crime. The trial court noted that this claim was without merit. The defendant has a precise memory of the events of that day. The Court agreed with that analysis and conclusion.

State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)
The defendant claimed that he was intoxicated during the murder. The Court noted that the evidence did not support this view. The victim was held captive for 8 hours. The Court cannot believe that during this entire period of time that the defendant's capacity was so impaired that he could not appreciate the wrongfulness of his behavior.

State v. Gerlaugh (Gerlaugh II), 144 Ariz. 449, 698 P.2d 694 (1985)
The defendant argued that he was given ineffective assistance of counsel by his defense counsel not arguing his intoxication at the time of the crime. The trial court was aware of several references to the defendant's intoxication. The presentence report referred to his intoxication and there was evidence at trial that the defendant had consumed a few drinks prior to the murder. The defendant made a statement that he had consumed a large amount of malt liquor prior to the murder. There was no corroborating evidence to support the defendant's self-serving statement. A witness testified that the defendant did not mention his consumption of a large amount of liquor and did not appear to have done so. Neither of the codefendants mentioned the defendant having consumed a large amount of alcohol. The psychiatrist testified that it would be consistent with the defendant's personality to exaggerate his alcohol consumption. The psychiatrist could form no opinion as to whether alcohol significantly impaired the defendant's mental condition on the night of the crime. No new evidence has been presented. The trial court acted well within its discretion in rejecting this unsubstantiated claim of intoxication. See also mental impairment section.

State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985)
The defendant argued that his heavy heroin use significantly affected his ability to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. There was overwhelming evidence before the trial court of the defendant's history of heroin abuse and use of the drug on the day of the murder. The trial court properly determined that the defendant's heroin use did not impair his ability to appreciate the wrongfulness of his conduct. The defendant was able to maintain a full time job while a heroin addict. He testified that heroin had a calming effect on him. The defendant had a rather detailed plan to kill the victim, and he carefully disposed of the car and the body after the murder despite having consumed both heroin and wine immediately after the crime. The defendant was able to recall in detail the events of the murder and demonstrated at trial exactly how he had killed the victim. The defendant's heroin use did not constitute a mitigating circumstance under (G)(1).

State v. McMurtrey (McMurtrey III), 151 Ariz. 105, 726 P.2d 202 (1986)
There was conflicting evidence of intoxication. Some witnesses said the defendant was drunk, staggering around and spilling drinks. Others said he was not drunk. The fact that a defendant was to some degree intoxicated is not, by itself, a mitigating circumstance. The Court was not persuaded that there was evidence of substantial intoxication so as to constitute a significant impairment under (G)(1). The Court found significant the actions of the defendant at the time of the murders. After being at a bar for several hours, the defendant was able to buy a gun, crouch down and accurately aim at his victims. He had no trouble with balance, and when he was done shooting, he calmly put the gun down, quickly walked out of the bar and fled. See also mental impairment section.

State v. Rossi (Rossi II), 154 Ariz. 245, 741 P.2d 1223 (1987)
There was evidence that the defendant was ingesting cocaine at or near the time of the offense and that his life was dominated or controlled by drugs. Dr. Nash testified to the lack of control addicts have over their behavior when they are chemically dependent. After taking cocaine, a drug user may commit violent acts for three to four days, may suffer paranoia for seven to ten days, may suffer depression for three to four months, and may suffer intense cravings for over a year. There was contradictory evidence that the defendant did not appear to be under the influence of drugs on the morning of the crimes, and some of the defendant's acts indicate that he knew he was doing something wrong. These consisted of removing his license plate, attempting to remove fingerprints and cleaning his bloodstained shirt.

Because (G)(1) is phrased in the disjunctive, the Court need not conclude that the defendant's cocaine addiction significantly impaired both his mental capacity and physical conformity. Proof of significant impairment of either of these two personal attributes will suffice. Given the attempts made to cover up the crimes and the defendant's ability to recall the events in vivid detail the Court does not believe that his cocaine addiction significantly impaired his ability to appreciate the wrongfulness of his conduct. However, the Court does find that the defendant had proven by a preponderance of the evidence that his cocaine addiction significantly impaired his capacity to conform his conduct to the requirements of the law.

State v. Wallace (Wallace I), 154 Ariz. 362, 728 P.2d 232 (1986)
Wallace argued that the trial court's failure to find intoxication as a mitigating circumstance was error. The Court disagreed and reiterated that the fact a defendant was to some degree intoxicated is not, by itself, a mitigating circumstance. Whether a defendant's intoxication is a mitigating circumstance such as would make imposition of the death penalty inappropriate depends upon whether his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired. In this case, the only evidence that Wallace had been drinking on the day of the murders came from his own statements to police. The effect of the alcohol on him appears to have been minimal. Wallace told police that he knew what he was doing and knew that it was "not right." He was able to recall for police, in great detail, how and where he killed each of the victims. Thus, he failed to prove that his intoxication was a mitigating circumstance. Additionally, the Court found that neither his "difficult earlier years" nor his use of "various drugs" so affected his capacity to conform his conduct to the requirements of the law that they constitute a mitigating circumstance under (G)(1).

*State v. Stevens, 158 Ariz. 595, 764 P.2d 724 (1988)
The trial court found Stevens' capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired from the long-term use of alcohol and drugs, but that this mitigating circumstance was not sufficiently substantial to call for leniency. The Court disagreed, finding that Stevens' condition at the time of the murder was "a major and contributing cause of his conduct and was sufficiently substantial to outweigh the aggravating factor of pecuniary gain."

Stevens testified that he had been drinking heavily and ingesting drugs prior to the shooting. The empty beer cans and an almost empty vial of methamphetamine corroborated his statement. The reports of two psychiatrists supported a finding that Stevens' capacity was significantly impaired. One psychiatrist interviewed Stevens in jail for several hours. During the interview, Stevens reported that his history of drug and alcohol abuse dated back to his early teen years and that he was extremely intoxicated at the time of the shooting. He had been drinking for several hours, had consumed more than 12 cans of beer, and had been injecting himself with "crystal meth" all day long. He remembered injecting himself for the last time 45 minutes before the shooting. He said that the combination of alcohol and amphetamine often made him feel paranoid, so that he was suspicious of the others involved in the drug transaction and that the shooting "all happened in an instant" when things appeared life threatening to him. The psychiatrist diagnosed Stevens as being alcohol and amphetamine dependent and as having a passive-aggressive personality disorder. He concluded that Stevens' actions were the result of his heavy use of alcohol and drugs preceding his meeting with the victim and a well-developed habit of acting out on socially unacceptable impulses while under the influence of such intoxicants. The second psychiatrist also interviewed Stevens in jail and concluded that he apparently had enough capacity to appreciate right from wrong, but that his ability to conform his behavior to the requirements of the law was impaired at the time of the murder.

State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989)
The defendant argued that his mental lapses, due to a history of substance abuse, required leniency. The defendant was not under the influence of alcohol or drugs at the time of the offense. He was unaffected by a brief usage of marijuana, sharing a "couple of joints" of marijuana with four others. The psychiatrist who examined the defendant prior to sentencing argued that the defendant might have been subject to drug-related blackouts, but not psychoses or other mental defects. The defendant's memory impairment was due solely to his abuse of drugs and did not control his ability to control his conduct. Although the court should consider any evidence of mental impairment to mitigate a death sentence, "some types of impairments clearly bear more weight than others." Mental impairments have a far greater mitigating effect than sociopathology and personality defects, because they may evidence an inability of the defendant to control his conduct.

State v. Samuel Lopez (Samuel Lopez I), 163 Ariz. 108, 768 P.2d 959 (1990)
The defendant contends that his alleged intoxication at the time of the murder was a mitigating circumstance. But the defendant offered no evidence of intoxication at the sentencing hearing. He relied on the prosecutor's opening statement and the testimony of two trial witnesses as proof that his intoxication was a significant impairment. Intoxication itself is not a mitigating circumstance. The defendant's intoxication was not pronounced enough to impair significantly his capacity to appreciate his conduct or to conform to the law. The trial judge is correct that this mitigating circumstance was not proven.

State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)
Intoxication can be a mitigating circumstance. However, there was very little evidence of intoxication in this case. There was no showing that his consumption of alcohol impaired defendant Washington to any degree.

*State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)
Even if the trial court does not find sufficient evidence to establish a mitigating circumstance under (G)(1), the trial court must consider any evidence of mental impairment to mitigate capital punishment. The trial court cannot conclude its inquiry once it determines that the evidence does not meet (G)(1). In order to remain faithful to Lockett and Watson, the court must then consider whether the proffered evidence in some other way suggests leniency. The trial court concluded, based on the testimony of witnesses, that the defendant's intoxication on the night of the murder was insufficient to establish that his capacity to appreciate the wrongfulness of his conduct or to conform it to the requirements of the law was significantly impaired. The inquiry should have continued however.

The record reveals that from the age of 11, the defendant suffered from a psychological illness for which his family could not afford psychiatric care. The defendant spent most of the first six months of his incarceration in the psychiatric ward where he exhibited psychotic behavior. He attempted suicide, suffered from headaches, insomnia, and hallucinations, complained of hearing voices, repeatedly smeared feces on himself and needed medication to alleviate his condition. The evidence indicates a history of alcohol abuse. These factors, taken together, have an independent mitigating effect despite the failure to establish impaired capacity at the time of the crime. See also mental impairment section.

State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991)
The trial court did not find that the defendant's chronic drug or alcohol abuse or its use around the time of the murders was a mitigating factor. The trial court did not find that this was proven by a preponderance of the evidence. A.R.S. §13-751(G)(1) is stated in the disjunctive and must be considered by the court accordingly. The testimony indicated that the defendant had chronic drug and alcohol problems and sought help for them. He had ingested at least six wine coolers and eight to ten lines of cocaine in the six hours immediately preceding the killings. However, the defendant rented a videotape shortly after the shootings and the clerk testified that the defendant did not at that time appear to be under the influence of anything.

Three psychiatrists and one psychologist examined the defendant. Only one expert testified that the defendant's capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was impaired. The other three testified that he knew his conduct was wrong because he took actions to cover up the crimes. He disposed of the bodies, hid the bloody blanket, seat cover and gun, and called in a missing persons report. Two of the experts testified that the defendant was not suffering from any mental illness that would have prevented him from conforming his conduct to the requirements of the law. The Court contrasted this case with the evidence and findings in Rossi II. Here, despite the history of drug abuse, there is no evidence that it overwhelmed his ability to control his physical behavior. The Court found no error in the trial court's conclusion that this mitigating factor was not proven.

State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991)
The Court agreed with the defendant that it is not incongruous that the cause of a murder can also require leniency, but found no evidence that by making this statement the trial court discounted the mitigating circumstance of mental impairment and intoxication. The fact that a defendant was to some degree intoxicated is not, by itself, a mitigating circumstance. Whether a defendant's intoxication is sufficient to constitute a mitigating circumstance depends on whether his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired. The trial court was unable to determine the extent to which the defendant's ability to appreciate the wrongfulness of his conduct was impaired, but nonetheless found "it was impaired to some extent and this is a mitigating circumstance." In light of the conflicting evidence regarding the defendant's intoxication at the time of the murder, the trial court would have been justified in finding that it did not constitute a mitigating circumstance at all.

The defense psychologist testified that the defendant appeared to have an alcohol dependence, was extremely intoxicated at the time of the murders, and was experiencing "delusions" that the victims, his wife and her daughter, were having sexual relations with his wife's ex-husband. He concluded that the defendant's ability to perceive the wrongfulness of his acts or to conform his conduct to the requirements of the law was "grossly impaired." In reaching his conclusions, the defense psychologist relied upon the truthfulness of what the defendant told him even though the defendant told the trial court he had lied to the psychologist. He also acknowledged that he did not attempt to confirm the history the defendant provided, and that he did not listen to the tape recording of the murder. The state rebutted the defense psychologist's testimony with testimony from a psychiatrist who found insufficient psychiatric symptomology to support the conclusions of the defense psychologist. Based on this record, the Court concluded that the trial court did not improperly discount the defendant's intoxication at the time of the murders as a mitigating circumstance.

State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991)
The use of drugs is a mitigating circumstance only if the evidence shows that the drugs significantly impaired the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law at the time of the offense. The defendant's past heroin, cocaine and amphetamine use is not a mitigating circumstance here. The defendant admitted that he had not used drugs within the last 10 years and that drugs were not a factor in this murder. See also mental impairment section.

State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)
Cook argued that the trial court's preclusion of evidence of intoxication at trial resulted in the rejection of intoxication as a mitigating circumstance. The Court explained that the preclusion applied only to the trial and not the sentencing hearing, and there was nothing in the record to indicate that Cook was misled to believe otherwise. The fact that Cook, who chose to represent himself, did not fully understand this distinction was not grounds for relief. Cook did not present any evidence of intoxication, or of any other mitigating factor, at the sentencing. The trial court acknowledged that there was some evidence of intoxication and drug use in the trial record, but found the evidence insufficient to support a finding that Cook's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was affected. The ruling was based on the trial judge's assessment of the weight and credibility of the evidence before him, and consequently, the Court deferred to his conclusion. The most significant evidence of possible impairment was contained in the Rule 11 reports. But those assessments of Cook's intoxication were based on Cook's own statements, and the trial court was free to doubt the veracity of those statements.

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
Voluntary intoxication is a mitigating circumstance if the defendant's capacity to appreciate the wrongfulness of his conduct was significantly impaired at the time of the crime. The defendant's father testified that the defendant started using drugs at age 13 and continued until the time of his arrest. The defendant also testified similarly, and indicated that he was using marijuana, cocaine, codeine and Demerol around the time of his arrest. He stated that these drugs made him unable to think clearly. This, however, is not the same as not having the capacity to appreciate the wrongfulness of one's conduct. The defendant has not provided any evidence to meet that standard. In addition, some witnesses testified that the defendant told them about stabbing a man and taking his body to the desert. The defendant also asked these witnesses about whether he should dispose of his bloody clothes. One witness saw the defendant sandpapering his knife. This indicates that the defendant was hiding evidence which, in turn, indicates that he knew that his conduct was wrongful.

State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992)
The Court agreed with the trial court that Salazar failed to prove that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired by intoxication at the time of the murder. Two witnesses testified that Salazar did not appear to them to be intoxicated on the night of the murder. Salazar testified that he was drinking heavily on the night of the murder, and while in the victim's home, he was stumbling over the furniture. Yet he testified in detail about what went on in the house, even remembering which hand he held the lighter to guide him through the darkened house. He was thinking clearly enough to discard his shoes so they couldn't be matched to the footprints left in the house, which suggests he did appreciate the wrongfulness of his conduct.

State v. Hill, 174 Ariz. 313, 848 P.2d 1375 (1993)
The trial court found that the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired by years of alcohol abuse. The Court agreed with that conclusion without any discussion. The defendant argued that the trial court erred by not fully discussing the other evidence offered in mitigation such as his good conduct in prison, his potential for rehabilitation, his background and emotional character resulting from his Vietnam experience, the plea agreement offered by the state, and his lack of intent. The Court stated that while it believes that judges should discuss all factors considered in mitigation, they do not require detailed, exhaustive findings or that the sentencing judge cite every claim or nuance advanced by the defendant. The Court simply noted that it found no additional nonstatutory mitigating factors that would warrant leniency.

*State v. Mickel Herrera, 174 Ariz. 387, 850 P.2d 100 (1993)
The Court agreed with the trial court that the defendant did not prove the existence of the (G)(1) mitigating circumstance by a preponderance of the evidence. The record indicated that the defendant asked another to hide his beer when the deputy stopped the Herreras, and after he fled the crime scene, the defendant hid the gun he used to shoot the deputy. Those actions indicate that he appreciated the wrongfulness of his conduct. It appears, however, that the Court gave weight to the defendant's use of alcohol at the time of the crime, as nonstatutory mitigation. The Court noted the defendant's psychiatric evaluations, one of which concluded that at the time of the murder the defendant was suffering from alcohol abuse and that it was substantial enough to have contributed to his behavior at the time of the murder. Another concluded that the contribution of his alcoholic condition to the crime "likely appeared in the form of impaired judgment and impulsive behavior." The Court found that the mitigating circumstances taken as a whole (duress, young age, dysfunctional family background, borderline I.Q. and alcohol use at the time of the murder) required leniency and reduced the sentence to life.

State v. Kiles, 175 Ariz. 358, 857 P.2d 1212 (1993)
The defendant began using cocaine and heroin about four months before the murders. He was high on drugs for two weeks prior to the murders and had a $200-$400/day cocaine habit around the time of the murders. He was extremely high on the evening of the murders and had ingested cocaine and drank alcohol that evening. Voluntary intoxication is a mitigating circumstance if it significantly impaired a defendant's capacity to conform his conduct to the requirements of the law. Dr. Don testified that although the defendant was aware of the wrongfulness of his conduct, the drugs and the disordered personality contributed to his inability to conform his conduct to the requirements of the law. Dr. Don also stated that the defendant probably would not have committed the act if a police officer were present. Dr. Hart agreed with this assessment. The Court refuses to equate the defendant's unwillingness to control his actions with an inability to do so. The Court believes that the conclusions of these two experts that the defendant would not have committed the murders if a police officer were present indicates that the defendant was unwilling to control his actions, not that he was unable to do so. Dr. Don's conclusion was further discounted because he argued that the defendant's ability to conform his conduct to the requirements of the law was significantly impaired as shown by the defendant's drug usage.

The other two experts split on the issue of whether the defendant was able to conform his conduct to the requirements of the law. There was nothing in the record to indicate why more weight should be given to one expert over the other. Therefore, the Court concluded that significant impairment had not been proven by a preponderance of the evidence. The defendant had a history of chemical abuse and was probably intoxicated during the murders, however, the evidence did not establish that the drug usage overwhelmed his ability to control his physical behavior. Any mitigating effect of the defendant's drug usage was reflected by the trial court's finding that the intoxication constituted a nonstatutory mitigating circumstance.

State v. Samuel Lopez (Samuel Lopez II), 175 Ariz. 407, 857 P.2d 1261 (1993)
At his second sentencing hearing, the defendant brought in evidence from two witnesses who had talked to the defendant shortly before the murder. One described him earlier in the evening as calm and then later, drunk. One indicated that the defendant asked her if she "got high" and when she responded no, he went behind her apartment for five minutes. When he came back he was unable to stand up without help. One of these witnesses said that the defendant was "on something." The trial court found this evidence to be insufficient to prove intoxication as a statutory mitigating factor. Given the totality of the evidence, the time lapse after the witness' observations to the murder, the defendant's own denial, and the defendant's recollection of the details of the crime, the defendant failed to satisfy his burden of proof.

Idiosyncratic or pathological intoxication is a rare condition where a person exhibits sudden and unpredictable behavior very shortly after ingesting a small amount of alcohol. One defense expert offered a tentative diagnosis of this condition, but emphasized that he was speculating. The defendant denied the condition and there was no evidence to confirm that it existed. Another expert testified that the defendant did not have this condition. He testified that most people that have this condition have a predisposing physical condition such as brain damage. Both experts agreed that the defendant had no such predisposing condition. The trial court found that there simply was insufficient evidence to prove this mitigating factor. The Court agreed with this conclusion. Intoxication, by itself, does not constitute mitigation. The defendant argued that the trial judge did not consider the evidence of intoxication as a nonstatutory mitigating circumstance. The trial court did not limit its review of the evidence to only those mitigating circumstances that referred to the statutory factors. The judge stated in his special verdict that the parties had the opportunity to present evidence and argument on any of the mitigating circumstances whether in the statute or not. The Court agreed that the trial judge had done so in this case.

State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993)
The defendant argued that the trial court should have found the existence of the (G)(1) statutory mitigating circumstance because his ability to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was "significantly impaired" by substance abuse. The defense expert indicated that absent drug consumption and withdrawal symptoms, it was less likely that the defendant would have killed, and that addiction and withdrawal made it more difficult for him to conform his conduct to the requirements of the law. Other testimony indicated that the defendant had a history of drug use. But the defense expert admitted that the drug history he relied on came largely from the defendant; he had reservations about the defendant's truthfulness regarding his criminal activities; and there was nothing to indicate that the defendant was unable to appreciate the wrongfulness of his actions.

Although the defendant claimed to have been deprived of alcohol and drugs for several days before the murder, his expert admitted that the defendant had been drinking during that time period. There was no evidence that the defendant was "suffering" from alcohol deprivation. Nor did the record support the claim that the defendant was intoxicated at the time he committed the murder. Testimony indicated that he acted normally both before and after his arrest. Moreover, there was no evidence that the defendant used drugs or, absent two empty 50-milliliter vodka bottles, that he consumed alcohol on the day of the murder. On this record, the Court found no "significant impairment." It appears that the Court also considered the claim of "intoxication" as nonstatutory mitigation, but again noted that there was "no real evidence that the defendant was intoxicated at the time of the offense."

State v. William Herrera, Jr., 176 Ariz. 21, 859 P.2d 131 (1993)
On the afternoon of the murders, the defendant and his father and brothers purchased beer and wine and drove to an isolated area where they began drinking. In his statement to police, the defendant said that he consumed approximately one case of beer that day, as well as three-fourths of a bottle of wine. The trial judge found that although the defendant had participated in the consumption of alcohol, he was not significantly impaired. The trial judge refused to find the defendant's alcohol consumption to be a statutory mitigating circumstance, but he gave it weight as nonstatutory mitigation.

The Court found that the evidence supported the trial judge's finding. The evidence showed that the defendant was drinking before the victim approached him, but there was no evidence showing that defendant was impaired at all, let alone significantly. The defendant demonstrated a good memory for the events that occurred. He related those events to the arresting officers the day after the murder and assisted his attorney in preparing his defense. It was not until later, at his post-conviction hearing, that the defendant asserted that he could not remember the events of that day and that his earlier statements were based upon what his brother told him while they were fleeing. The Court found that the trial judge gave appropriate mitigating weight to each and every mitigating circumstance, and correctly found that they were not sufficiently substantial to call for leniency.

State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993)
The defendant argues for the first time on appeal that his history of substance abuse constitutes a mitigating factor and was not considered by the trial court. This claim is meritless. There was some mention of his substance abuse in the presentence report. Nothing indicates that the trial court failed to consider this drug use. There is also no indication in the record as to how this drug use significantly impaired the defendant's capacity to conform his conduct to the requirements of the law or that he was impaired by drug use on the night of the murder.

State v. Schurz, 176 Ariz. 46, 859 P.2d 156 (1993)
A codefendant testified that the defendant consumed approximately 24 cans of beer and a bottle of wine with him and another person. The only sober person present at the time indicated that the defendant was drunk. The defendant told the doctor who prepared the pre-screening report that he had ingested heroin and did not remember the events surrounding the burning of the victim. The defendant told Dr. Tatro that although he consumed alcohol and heroin on the night of the murder, he did remember what happened. The defendant also indicated that he lied previously about his memory lapse. Dr. Tatro concluded that the defendant knew what he was doing, but simply did not care because of his intoxication and past history of institutionalization.

The Court agreed with the trial court that the evidence is insufficient to establish the existence of the (G)(1) mitigating circumstance. An uncaring attitude, even if partially caused by drug abuse, does not constitute an impaired ability to appreciate the wrongfulness of one's actions. There was also no evidence that the defendant's intoxication deprived him of his ability to control his conduct. The trial court found that the defendant proved a mixed personality disorder with passive-aggressive, avoidant and antisocial features. This was coupled with opiate and alcohol dependence and mixed substance abuse. The Court noted that this and the other four nonstatutory mitigating factors primarily came from Dr. Tatro's report which painted a picture of a man who, as a result of a less than ideal early family life and almost constant incarceration between the ages of 12 and 20, has developed a volatile and violent personality extremely maladapted to living in society. This is as much an argument for the death penalty as against it. See also mental impairment section.

State v. West, 176 Ariz. 432, 862 P.2d 192 (1993)
The defendant claimed his intoxication was a mitigating circumstance, but the trial court was "justified" in rejecting intoxication as a mitigating factor because the defendant's own evidence refuted his claim. A defense expert testified that he was unwilling to offer any opinion on whether the defendant was under the influence at the time he committed the murder. The trial court was "justified" in finding that the defendant's chemical dependency did not significantly impair his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law under the (G)(1) statutory mitigating circumstance. Although the defendant presented evidence that his chemical dependency made choices in life more difficult, and that he made poor choices as a result of his addiction, the defense expert would not testify that the defendant could not differentiate right from wrong or could not conform his conduct to the requirements of the law.

The Court agreed that the defendant had proven his substance abuse problem by a preponderance of the evidence, and that it was a nonstatutory mitigating circumstance, but was insufficient to call for leniency in this case. The defendant had ample opportunities to overcome his substance abuse problem. He declined three separate referrals to drug treatment. The Court would not "ascribe much weight in mitigation to a problem for which the defendant refuses to take responsibility." The defendant argued that his failure to complete a drug rehabilitation program should have been considered in mitigation. The trial judge was "justified" in rejecting this claim of mitigation because the evidence suggested that the defendant turned down an opportunity to enter such a program on three separate occasions.

State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)
The Court agreed with the trial court that Gallegos' impairment on the night of the murder did not rise to the level of "significant" impairment contemplated by the (G)(1) mitigating circumstance. Gallegos testified that he smoked marijuana and may have consumed as many as 18 to 21 beers on the day of the murder. Additionally, he testified that he drank some tequila and shared a half-gallon of scotch with two others. But Gallegos' alcohol consumption was largely uncorroborated by physical evidence, or by other testimony. Further, his testimony and his confession revealed his state of mind immediately following the murder and that he had tried to conceal evidence. It was clear that he appreciated the wrongfulness of his conduct and that he acted with significant forethought. Despite evidence in the record indicating that Gallegos was impaired to some degree on the night of the murder, that impairment alone was insufficient to establish the (G)(1) mitigating circumstance.

But the trial court should have considered whether Gallegos' impairment, when viewed in light of his alleged history of alcohol and drug abuse, constituted a nonstatutory mitigating circumstance. After considering the evidence that Gallegos was impaired to some degree on the night of the murder, as well as his history of drug and alcohol abuse, the Court found that his impairment constituted a nonstatutory mitigating circumstance. The Court remanded for resentencing because it could not clearly ascertain whether the trial court would have sentenced Gallegos to death if it had considered Gallegos' impairment as a nonstatutory mitigating circumstance.

State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
Dr. McMahon concluded that the defendant's capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired because of his psychological makeup and the alcohol/cocaine intoxicated state he was in at the time of the murder. There was no evidence in the record to contradict this finding, so the defendant proved the (G)(1) mitigating circumstance. The defendant argued his chronic substance abuse in mitigation. The Court noted that the trial court correctly found this to be a nonstatutory mitigating factor, but did not discuss it.

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)
The Court agreed with the trial court that Wood's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired. Wood offered expert testimony in support of his claim that his actions were due largely to his chronic alcohol and drug dependency and his impulsive personality. Neither of the psychologists who evaluated Wood could directly address Wood's conduct on the date of the murders because Wood maintained that he had no recollection of the events. One of the psychologists testified that Wood's substance abuse history had a significant impact on his behavior at the time of the killings. This testimony was weakened, however, by the fact that the psychologist, before examining Wood but after studying prior evaluations and records, stated in a letter to defense counsel that Wood's "drug and alcohol use was not of an early enough onset and chronicity to result in significant impairment in impulse control or other maturation affecting the ability to process feelings and behavior."

Both psychologists who evaluated Wood said that he did not suffer from any form of mental illness, but only from a form of personality trait that drug and alcohol abuse often exacerbated. Wood admitted, however, that he had used no drugs for three days prior to the murders and had consumed only two alcoholic drinks over twelve hours before the murders. This case fell "far short" of those meeting the (G)(1) mitigating circumstance. The Court also considered whether Wood's history of substance abuse merited any weight as nonstatutory mitigation. The Court gave it "little, if any" weight, noting that he was not under the influence of any intoxicating substance at the time of the murders. See also mental impairment discussion.

State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
The Court adopted the findings of the trial court that the defendant did not prove that his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired by drug usage. Although the defendant spent over two years at a state hospital because of alcohol, marijuana and cocaine abuse, there was no evidence in the record to suggest that the use of any drugs or alcohol contributed to the conduct in causing the victim's death. The Court adopted the findings of the trial court that the defendant failed to prove this nonstatutory mitigating circumstance. The defendant argued in mitigation that he had a long history of alcohol abuse and addiction.

State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)
Dr. McMahon concluded that the defendant was intoxicated to some degree at the time of the murders, and that therefore his ability to fully appreciate the consequences of his actions was impaired. When pressed on cross-examination, the doctor stated that the defendant told him he was drunk. Later the doctor indicated that the defendant simply told him that he did not commit the crimes. There is nothing in the record to indicate that the defendant was intoxicated at the time of the murders or how much, if any, alcohol was consumed that day by the defendant. There is a dramatic difference between the ability to appreciate the wrongfulness of one's conduct and the ability to appreciate the full consequences of one's conduct. The fact that the defendant wiped the guard's holster indicates that the defendant knew enough to try to cover up his acts.

Dr. McMahon also testified that people with post-traumatic distress have difficulty controlling their emotions. Impulsivity is not the same as inability to conform one's conduct to the requirements of the law. The Court affirmed the trial court's conclusion that the (G)(1) mitigating factor was not proven. The trial court found that the defendant had proven that he had a substance abuse problem. The Court agreed with this conclusion without discussion.

*State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
Richmond argued that in the event of a remand for a third sentencing hearing, he would present evidence of his significant psychological disability, which was enhanced by his alleged drug addiction, at the time of the murder more than twenty years earlier. The record suggested that Richmond may have been impaired by drugs at the time of the killing. But this Court had not interpreted the (G)(1) mitigating factor as including impairment by intoxication until three months after Richmond's second sentencing. Consequently, Richmond's drug use and its possible connection to the murder was neither considered nor argued in mitigation. Although the Court could not evaluate the potential evidence at a resentencing as part of this reweighing, the Court was reminded that this case was "engulfed in a quagmire of complexity" because capital sentencing laws had changed so significantly over the years. After reweighing, the Court found the mitigation in this case sufficiently substantial to call for leniency, and reduced Richmond's sentence to life.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Stokley argued that he was significantly impaired, under the (G)(1) mitigating circumstance, because of alcohol consumption. Voluntary intoxication may be mitigating if a defendant proves by a preponderance of the evidence that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was significantly impaired. Here, there was evidence that Stokley and his codefendant consumed alcohol on the day of the murders. Several witnesses testified that they saw him consuming beer and whiskey the afternoon and night of the murders, but they testified that the codefendant was drinking and appeared more intoxicated than Stokley. The morning after the murders, the owner of the campsite where the victims had camped found an empty quart bottle of whiskey, an empty half-pint bottle of whiskey and an empty six-pack of beer, but these items were never tied to Stokley. Based entirely on Stokley's self-reported consumption and blackout on the night of the murders, a clinical psychologist said that Stokley's capacity to appreciate the wrongfulness of his conduct was significantly impaired at the time of the crime. But there was a great deal of evidence that Stokley did not suffer a blackout and was not significantly impaired by alcohol at the time of the murders. He disposed of the bodies and burned the clothing of the victims, demonstrating that he knew the conduct was wrongful. He was able to accurately guide officers back to the crime scene and he had substantial recall of the events. The Court agreed with the trial court that Stokley was not significantly impaired and the (G)(1) mitigating circumstance did not exist.

Even if impairment does not rise to the level of the (G)(1) mitigating circumstance, the trial court should still consider whether such impairment constitutes nonstatutory mitigation, when viewed in light of a defendant's history of alcohol and drug abuse. Here, various acquaintances testified that Stokley was an alcoholic and considered himself to be one. A clinical psychologist agreed with that assessment. Stokley claimed to have consumed at least a pint of whiskey every day and to have used various illicit drugs in the past. He was arrested twice for drunkenness and was convicted twice for driving while intoxicated. The Court noted that the trial judge was very thorough in considering both statutory and nonstatutory mitigating circumstances. The trial judge concluded that "alcohol abuse over an extended period of defendant's life, and his drinking at the time of the killings are not mitigating circumstances under the facts of this case." The Court agreed with the trial court that Stokley failed to prove that his alcohol or drug use was a nonstatutory mitigating factor.

State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)
Use of drugs is a statutory mitigating circumstance only if the evidence shows that, at the time of the offense, drugs significantly impaired the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. If impairment does not rise to the level of a statutory mitigating circumstance, such impairment may constitute a nonstatutory mitigating circumstance when viewed in light of a history of alcohol or drug abuse.

A witness testified that the defendant started using cocaine about six months prior to murdering the victim and that he became more violent on cocaine. This witness testified that the defendant told her that he was using drugs the day before the murder. The defendant, however, denied that he ever used drugs. There was no evidence that the defendant was intoxicated when he murdered the victim or that he was impaired at that time. Without a showing of impairment, drug use cannot be a mitigating circumstance.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Evidence was presented that Roger and Robert consumed alcohol on the night of the crimes. In the presentence investigation, Roger reported that he was a regular consumer of alcohol and a user of illicit drugs, including cocaine, methamphetamine, heroin, and crack cocaine. Although Dr. Potts concluded that Roger's abilities to conform his conduct to the requirements of the law were markedly diminished because of illicit substance abuse, the trial court found no evidence that Roger was intoxicated at the time of the offense. The Court found that Roger failed to show alcohol or illicit drugs impaired his ability to appreciate wrongfulness or conform his behavior to the requirements of the law. The Court also considered whether Roger's impairment evidence constituted nonstatutory mitigation, when viewed in light of his alleged history of alcohol and drug abuse. The Court concluded that Roger failed to prove his alcohol or drug use as nonstatutory mitigation, primarily because the historical substance abuse was self-reported and uncorroborated.

State v. Medrano (Medrano II), 185 Ariz. 192, 914 P.2d 225 (1996)
Dr. Pitt, a psychiatrist, testified that the defendant has paranoid personality traits, was cocaine dependent, cocaine use often leads to violence, and the defendant was not malingering. Dr. Pitt could not say if the defendant was impaired at the time of the murder, but could only say that he would have been significantly impaired if he were under the influence of cocaine when the crimes were committed. The defendant provided most of the information regarding his drug use in general and on the night of the murder. Even Dr. Pitt did not believe the defendant's claims regarding the prodigious amounts of cocaine he supposedly used before the murder. While the Court did not question whether the defendant used cocaine on the night of the murder, he has not presented sufficient evidence to support a finding of impairment from that cocaine use. From testimony of witnesses, the defendant was able to drive around the city, find a bar, his friend's house, the victim's house, and a store on the night of the murder. If he used cocaine that night, it did not overwhelm his ability to control his physical behavior.

The defendant further argued that because he is a nonviolent person, cocaine must have caused his actions on the night of the murder. The defendant's past criminal record and testimony from friends and family did not establish impairment or any causation between drug use and the murder. The defendant similarly argues that the absence of any motive for his actions, other than cocaine intoxication, proves that he was unable to conform his conduct to the requirements of the law or to appreciate the wrongfulness of his conduct. While lack of a motive may reinforce a finding that mental impairment was a contributing cause of the murder, there was evidence in this case that the defendant killed the victim to prevent her from telling her husband about the rape. The defendant's actions belie his claim of significant impairment. The defendant was able to provide details of the crime to the police and articulate what he was thinking immediately before and after the murder. He disposed of the murder weapon upon leaving the house also. There was simply insufficient evidence to show that he was significantly impaired. This evidence also fails to support cocaine use as a nonstatutory mitigating circumstance.

State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d 1056 (1996)
In Gallegos I, the Court agreed with the trial court that Gallegos was not "significantly impaired," but concluded that the evidence of Gallegos' impairment from alcohol was a nonstatutory mitigating circumstance and remanded for resentencing. On remand, the trial court found Gallegos' alcohol impairment as a nonstatutory mitigating circumstance, but not sufficiently substantial to call for leniency, and resentenced Gallegos to death. The Court agreed, concluding that Gallegos' alcohol impairment at the time of the murder, and his past substance abuse, were worthy of little, if any, weight in mitigation. See Gallegos I.

State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
The trial court found that the defendant had a long-standing substance abuse problem and that he was under the influence of alcohol and drugs at the time of the offense. His substance abuse problem may have been caused by genetic factors and aggravated by head trauma. The history of substance abuse is well documented. The defendant's stepfather testified that by the age of 17 the defendant had attended two drug rehabilitation programs and had used many types of drugs, and was an alcoholic.

The evidence of intoxication on the night of the murders is based on the defendant's self-reporting. He testified that he was under the influence of alcohol and methamphetamines on the night of the murders and had not slept for three or four days. However, a witness who saw the defendant and one of the victims shortly before the murders testified that although he knew that the defendant was drinking, the defendant was not visibly intoxicated. The Court gave this circumstance some weight in mitigation, but it was not sufficiently substantial to call for leniency.

State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)
A psychologist's testimony regarding the effect of defendant's crack cocaine abuse was properly excluded for lack of foundation. The expert did not know how often or in what quantities the defendant had taken crack cocaine before the murder. Therefore, the expert had no basis upon which to render an opinion about the effects of crack cocaine use at the time of the murder. Furthermore, there was no evidence that the defendant was under the influence of drugs at the time of the murder. He had used drugs in the weeks before the murder, but admitted that he had not used drugs on the day of the murder. The bald assertion that he abused drugs the night before the murder does not satisfy the (G)(1) circumstance.

State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)
The Court noted, without further discussion, that the trial court found some mitigation in the defendant's drug use because it "may have impaired" his ability to conform his conduct to the requirements of the law. The trial court concluded that the mitigating evidence in this case was not sufficiently substantial to require leniency.

State v. Laird, 186 Ariz. 203, 920 P.2d 769 (1996)
There was no evidence that the defendant was drunk at the time of the murder. The witnesses who saw him the day before the murder saw no signs of intoxication. There was no mention of intoxication when the defendant spoke with his friends that night or the next morning. See also mental impairment section.

State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)
The defendant did not raise this issue at the presentence hearing nor on appeal. The state presented some expert testimony about the defendant's habitual substance abuse at the presentence hearing, but it was insufficient to meet the defendant's burden of proof. See also mental impairment section.

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)
Miller argued that the trial court erred in failing to find his intoxication mitigating. The Court noted that intoxication is mitigating, under the (G)(1) circumstance, when it impairs a defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Miller claimed he had consumed a large amount of alcohol and had taken several Percocets, a narcotic painkiller, before the murder. His roommates told the police that he had consumed a large quantity of alcohol. Miller also claimed he usually was not violent toward other people and the murder would not have happened had he not been intoxicated. But the trial court rejected intoxication as mitigating in this case, relying primarily on Miller's ability to drive down Mt. Lemmon at night, at a high rate of speed, right before he pulled the living victim from the vehicle and shot her five times. In addition, Miller had once assaulted a group of students with a .22 caliber handgun, which tended to refute his claim that he usually was not violent toward other people. The Court agreed with the trial court that Miller's intoxication did not impair either his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law.

State v. Detrich (Detrich II), 188 Ariz. 57. 932 P.2d 1328 (1997)
On the night of the murder, Detrich consumed between 12 and 24 cans of beer in a two-hour period at one bar, and later visited several more bars and consumed more beer. The trial court found that Detrich was "significantly impaired" as provided for in the (G)(1) mitigating circumstance, but found that the mitigating evidence in this case was not sufficiently substantial to outweigh the aggravating circumstance of having committed this offense in an especially cruel, heinous or depraved manner. Detrich argued that his mitigating evidence should have been given greater weight. The Court concluded that Detrich's mitigating evidence was less significant than it initially might seem. "Although the trial judge found that defendant's alcoholic state significantly impaired him, the judge noted that defendant was cognizant of his surroundings and was capable of carrying on conversations with [the codefendant] and the victim."

State v. Barry Jones, 188 Ariz. 388, 937 P.2d 310 (1997)
The defendant argued that his methamphetamine use was a mitigating circumstance. Voluntary intoxication may be a mitigating factor if the defendant proves by a preponderance of the evidence that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired. The defendant self reported heavy methamphetamine use at the time of the murder. Expert testimony corroborated this along with testimony of other witnesses who indicated that the defendant used the drug the day before the murder. However, no testimony established that either because of the drugs or because he was coming down off the drugs that the defendant could not appreciate the wrongfulness of his conduct or conform his conduct to the law. There was insufficient evidence to show that the defendant was impaired by methamphetamine use to constitute either statutory or nonstatutory mitigation.

State v. Henry (Henry II), 189 Ariz. 542, 944 P.2d 57 (1997)
The trial court found that the (G)(1) statutory mitigating circumstance existed because the defendant's intoxication at the time of the murder impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

Henry claimed that the trial court improperly failed to find his intoxication and history of alcohol and drug abuse as nonstatutory mitigating circumstances. Because the trial court found that the defendant's intoxication impaired his capacity under A.R.S. §13-751(G)(1), it "would have been redundant to count this evidence again as nonstatutory mitigation." Further, the Court found insufficient proof of historical substance abuse. Even if there were sufficient proof, it would provide no additional mitigation without evidence of a causal connection to the crime. Following its independent review, the Court "affirmed" the (G)(1) mitigating circumstance found by the trial court, but concluded that the mitigation in this case was not sufficiently substantial to call for leniency.

State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)
The Court found that the record demonstrated the defendant's longtime substance abuse problems. But the Court noted that the "defendant's general problems with substance abuse are not essential to our decision here." The Court declined to conclude that the defendant was impaired by alcohol consumption to an extent that it interfered with his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
In support of his claim of significant impairment, the defendant cites his treatment at a mental health center and psychiatric testimony that he acted impulsively in strangling the victim. Dr. Bendheim testified that the defendant was raised in a disturbed home and was more likely than others to act impulsively. The defendant was acutely emotionally disturbed and extremely vulnerable toward violence. The Court found that this falls short of the significant impairment required by (G)(1). Dr. Bendheim did not believe the defendant's story that while in the motel he had periods where he mistook the victim for his estranged wife. The psychiatrist opined that the defendant knew right from wrong and was aware that he was committing a wrongful act. The state's expert found no indication of mental illness that would keep the defendant from knowing right from wrong. The police confirmed that three beer cans were found in the room. However, this was insufficient evidence that the defendant was too intoxicated to conform his conduct to the requirements of the law or appreciate its wrongfulness. The Court did not find either aspect of (G)(1) to have been proven.

State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)
A defendant's claim of alcohol or drug impairment fails when there is evidence that the defendant took steps to avoid prosecution shortly after the murder, or when it appears that intoxication did not overwhelm the defendant's ability to control his physical behavior. The defendant had consumed some alcohol on the night of the murder. There is no evidence providing even a rough estimate of how much alcohol was consumed by him. However, there is evidence that the defendant took steps to avoid prosecution by transporting his victim to a remote location, dislodging his stuck vehicle from a rock, summoning his girlfriend for aid, and calling the owner of the car to apologize for damage done to it. This factor does not exist.

There is substantial evidence in this record of the defendant's history of drug and alcohol abuse. However, this is not a mitigating circumstance when there is no evidence of a causal connection between the substance abuse and the crime. There was no evidence of that causal connection so the Court rejected this mitigating factor. Even if there had been evidence of a causal connection, it would not have been sufficient to warrant leniency. See also mental impairment section.

State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998)
Alcohol intoxication on the night of the murder may have caused some impairment, but it did not significantly impair his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The Court also noted without discussion that the defendant's history of substance abuse was not sufficiently substantial to call for leniency.

State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998)
The Court agreed with the trial court that Greene failed to establish the existence of the (G)(1) mitigating circumstance. Greene argued that he was significantly impaired due to his drug use and withdrawal. He testified that at the time of the murder he was withdrawing from drugs. Other than his own statement, he presented no evidence of the effect the withdrawal had on his capacity to appreciate the wrongfulness of his conduct or his ability to conform his conduct to the requirements of the law at the time of the murder. Moreover, his behavior showed that he did appreciate the wrongfulness of his conduct because he tried to change clothes and to cover-up the blood stains on him and the car seats.

The Court also rejected Greene's drug use and withdrawal as a nonstatutory mitigating circumstance in this case. Greene had a 12-year history of substance abuse. His drug use on the days before the murder was undisputed. He used methamphetamine every day for each of the four days prior to the day of the murder, and he ate very little and did not sleep. The Court noted that it has previously given "some weight" to a history of drug abuse and a defendant's own statement's about his drug use at the time of the murder. But in this case, Greene testified that he was not under the influence of drugs at the time he killed. Nor was there expert testimony of any causal connection between drug use or withdrawal and the murder. Although Greene killed to get money to buy drugs, that is not the sort of causal connection that would support a claim of mitigation. "To hold that a motivation to kill fueled in part by a desire for drugs is mitigating would be anomalous indeed."

State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998)
The trial court accepted the defendant's claim that he was an alcoholic, but found no proof of a causal connection to the crime. The defendant argues that because of his history, stated intent to go drinking that night, his confused state when the officers arrived, and the victim's high blood alcohol level, that he was probably intoxicated. Alcohol or drug impairment may constitute a statutory mitigating circumstance when viewed together with a history of abuse. The defendant failed to establish that he was intoxicated at the time of the offense. The police officers testified that they did not smell alcohol on the defendant when they first arrived and there were no defense witnesses to corroborate the defendant's self-reporting. The defendant did not drink on the job and abided by his employer's rule against drinking and driving the company truck. The trial judge properly concluded that the defendant failed to establish this mitigating circumstance where a finding of intoxication could only be based on self-reporting, personal history, the employer's testimony that he gave the defendant money to go drinking, and the victim's blood alcohol content.

State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)
The defendant reported a long history of alcohol and drug abuse. This was not corroborated and so cannot be given substantial weight. Furthermore, there was no causal connection between this history and the defendant's actions on the night of the murder. See also mental impairment section.

State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
The evidence was insufficient to establish the existence of the (G)(1) mitigating circumstance. The evidence did not support a finding that Smith was impaired by, or even under the influence of, drugs or alcohol at the time of the murders. Smith's own statements to police were that he was not intoxicated before the murders, but had been taking methamphetamine after the murders. The trial court found that Smith proved by a preponderance of the evidence his long-term addiction to drugs and alcohol, which was a nonstatutory mitigating circumstance. The Court agreed with the trial court's findings and concluded that the mitigating circumstances in this case, individually and collectively, were not sufficiently substantial to call for leniency.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
The defendant was under the influence of alcohol, marijuana and paint fumes at the time of the murder. Two experts testified that these substances could have significantly impaired defendant's ability to conform his conduct to the law. The Court found that the defendant established a significantly impaired capacity to conform his conduct to the law's requirements.

State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
There is some indication that the defendant and codefendants consumed large quantities of alcohol before and during the crime. But the defendant has failed to prove intoxication by a preponderance of the evidence. The defendant was able to recall details of the murder more than a year after it occurred.

State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999)
The defendant argued that his history of mental illness, the history of alcoholism in his family and his own polysubstance abuse established this factor. The Court indicated that while voluntary intoxication, substance abuse, or mental illness can support a (G)(1) finding, personality or character disorders usually are not sufficient to meet the requirements of this mitigator. There must be a causal link between the alcohol abuse, substance abuse or mental illness and the crime itself to meet the preponderance standard. The defendant here did not establish the threshold existence of any of these factors, let alone their impact on his ability to conform his conduct to the requirements of the law. Voluntary intoxication, polysubstance abuse or claimed mental illness will not satisfy the (G)(1) mitigator where the evidence is speculative, conflicting or nonexistent.

The Court looked to impairment caused by intoxication, and the defendant's past diagnosis and treatment for a bipolar or manic depressive condition. The defendant had consumed some beer on the way back to the victim's house and historically had been a polysubstance abuser. The trial judge discussed a prior Rule 11 evaluation which indicated some unusual results in the MMPI and some paranoia, as well as an incident in which the defendant carried a cyanide pill to a mental health evaluation which he brought in case he needed to kill himself. Mary Durand speculated that the defendant had mental difficulties based on her interviews with family members and review of reports. However, the record is insufficient to show the existence of any impairment. Nor has any causal relationship been shown to indicate that a mental impairment affected the defendant's actions or judgment at the time of the murder. The trial judge correctly ruled that impairment was not established as a nonstatutory mitigating circumstance. See also mental impairment section.


State v. Robert Jones
, 197 Ariz. 290, 4 P.3d 345 (2000)
The defendant claimed that he did not appreciate the wrongfulness of his conduct based on his continual drug use. Voluntary intoxication can be a mitigating factor if it impairs the defendant's ability to comprehend the nature of his crimes. It may also be a factor where the defendant has a long history of drug abuse. The defendant here proved he used drugs since his early teens when he was introduced to them by his stepfather. A neuropsychologist found that the defendant had an amphetamine dependence. On the night of the Moon Smoke Shop murders the defendant had only a small amount of beer, and nothing on the night of the Fire Fighters Union Hall murders. A long history of drug dependence does not meet the statutory requirement when the defendant is not under the influence of drugs at the time of the killing. The defendant is not a murderer because of drugs; he is a murderer who has used drugs in the past.


State v. Poyson
,
198 Ariz. 70, 7 P.3d 79 (2000)
The defendant argued that his drug use in the days leading up to, and on the day of, the murder caused significant impairment. The trial court concluded that it was unlikely that he was impaired by drugs because he was able to carry out the plan to murder the three victims. The Court agreed with the trial court that the defendant has not proven either that he was unable to conform his conduct to the requirements of the law or that he could not appreciate the wrongfulness of his conduct.

The defendant reported smoking some marijuana six hours before killing Delahunt and eleven hours before killing Wear and Kagen. This is insufficient evidence to prove substantial impairment. The defendant also claimed to have a PCP "flashback" during the murder of Delahunt. There was no evidence in the record other than the defendant’s self-reporting. Even if this did occur, it appears to have lasted only a few moments, which would not explain the defendant’s conduct during the 45 minute attack on Delahunt, or the killings of Wear and Kagen.

Other evidence indicates that the defendant was not impaired. He concocted a story to get bullets from a neighbor, cut the telephone line, and tested the rifle. He made efforts to conceal his crimes. He had Kimberly Lane sneak him into the main trailer to wash the blood off from murdering Delahunt. He also covered Wear’s body with debris to delay its discovery. The defendant was also able to remember in remarkable detail the specifics of the crimes. These actions indicate that the defendant was aware of the wrongfulness of his actions.

State v. Sansing, 200 Ariz. 347, 26 P.3d 1118 (2001)
The defendant presented evidence that drugs dominated his life, that he sounded excited and anxious before the crime, and that he was acting differently than normal and was "spaced out" during commission of the crime. Although it was undisputed that the defendant used cocaine on the day of the murder and for several days before, his actions before, during and after the offenses showed an ability to appreciate the wrongfulness of his actions and to conform his conduct to the law under (G)(1). And because there was no causal nexus between the drug use and the offense, it deserved limited weight as non-statutory mitigation.

State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
The defendant failed to prove cocaine impaired him or even that he used cocaine when he committed the robberies and murder. The trial court thus did not err in finding the defendant failed to prove significant impairment.

State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002)
The defendant presented minimal evidence that he used crack cocaine when he committed a robbery/murder. And he presented no evidence he was impaired during the event. The trial court thus did not err in finding the defendant failed to prove significant impairment under (G)(1).

For the same reasons, although the defendant presented some evidence of substance abuse, he offered no proof that his abuse caused him to commit the robberies/murder. Therefore, he failed to establish substance abuse as a non-statutory mitigating factor.

State v. (John Edward) Sansing, 206 Ariz. 232, 77 P.3d 70 (Sept. 24, 2003) (Ring)
(G)(1) NOT FOUND.  “Mere evidence of drug ingestion or intoxication is insufficient to establish statutory mitigation.  The defendant must also prove a causal nexus between his drug use and the offense.”  Sansing presented no expert testimony to support his assertion that his use of cocaine impaired his ability to control his physical behavior during the killing.   Furthermore, Sansing took steps shortly after the murder to hide the body and the victim’s truck so as to avoid detection, and he lied to the victim’s pastor when he made a telephone call to Sansing inquiring after the victim, thereby negating his claim that intoxication overwhelmed his ability to control his physical behavior.

State v. Murdaugh, 209 Ariz. 19, 97 P.3d 844 (2004) (Ring)
(G)(1) NOT FOUND.  The trial court considered defense expert testimony that Murdaugh evinced “various paranoid thoughts” featuring the belief that the government had placed a tracking device in his head.  The expert testified that Murdaugh also suffered from a personality disorder which may have been “amplified” by the methamphetamine use.  Counterbalancing this was significant evidence that Murdaugh took actions to cover up the crime and avoid detection.  He dismembered the body, taking care to remove the identifying teeth and finger pads and scattering them, and buried the parts separately.  He had others clean up the bloody garage where the murder was committed, and he attempted to sanitize and dispose of the victim’s van.   When Murdaugh learned that he was being tracked through the victim’s cell phone, he broke it into pieces and buried it.  Murdaugh also had the presence of mind to seek medical treatment when he received an injury cleaning his horse’s hoof after burying the victim’s body.  

From this, the Supreme Court concluded, as did the trial court, that there was both a “complete lack of evidence of a causal connection between Murdaugh’s drug use and the murder” and there was evidence that Murdaugh made “numerous efforts to avoid detection.”  As a result, no rational jury would have found that Murdaugh established the (G)(1) mitigating circumstance.

State v. (Albert Martinez) Carreon, 210 Ariz. 54, 107 P.3d 900 (2005) Jury Trial/Indep. Review
(G)(1) NOT FOUND.  Carreon claimed that he used drugs on the day of the murder.  The court, however, found that because Carreon had failed to present any “substantial evidence of impairment” on the day of the crime, this factor did not apply.  Notably, this decision was made after the court found that the trial judge had not abused his discretion in precluding the defense’s mental health expert from testifying at the penalty phase, since Carreon had refused to submit to a State expert’s examination.

State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
Although it is more likely that he suffered some mental or emotional damage due to a combination of his upbringing, physical and sexual abuse, physical deformity, and drug and alcohol use, Ellison failed to provide any specific evidence that his brain chemistry was actually altered by his past alcohol and drug abuse so as to cause or contribute to his participation in the murders. The Court found that Ellison failed to prove diminished capacity to appreciate the wrongfulness of his conduct.

State v. (Tracy Allen) Hampton, 213 Ariz. 167, 140 P.3d 950 (2006) Jury Trial/Indep. Review
Hampton’s long-time drug abuse, while mitigating, was accorded less weight because he did not tie it to his murderous behavior.

State v. (Darrel) Pandeli (Pandeli IV), 215 Ariz. 514, 161 P.3d 557 ( 2007) (Ring)
The defendant presented evidence that he began abusing drugs and alcohol when he was extremely young, in conjunction with his sexual abuse. The court found that he failed to demonstrate by a preponderance of the evidence that he was intoxicated on the night of the murder and that his substance abuse caused or contributed to his commission of the crime. This mitigation was therefore accorded minimal weight.

State v. (Julius Jarreau) Moore, 222 Ariz. 1, 213 P.3d 150 (2009)
The record showed a temporal, spatial and motivational relationship between the murders.  The temporal element was satisfied by the surviving victim’s testimony that within seconds she saw Moore shoot her and Mata, and then heard multiple gunshots.  The other two victims, Guadalupe and Delia, were shot inside their house, while Mata was shot just outside the front door, satisfying the spatial element.  And because it was difficult to imagine a motive for the murders of Delia and Guadalupe unrelated to Mata’s murder, the motivational element was satisfied.

State v. Alvie Copeland Kiles, 222 Ariz. 25, 213 P.3d 174 (2009)
The Court found that Kiles did not establish intoxication as a statutory mitigating circumstance, because he cleaned up the crime scene and disposed of the bodies of two of his victims. His chronic drug abuse did not overwhelm his ability to control his behavior.

State v. (Manuel) Ovante, Jr., 231 Ariz. 180, 291 P.3d 974 (2013)
Ovante presented several mitigation witnesses, who testified as to Ovante's childhood of poverty, violence, crime, molestation, and drug use.  Defendant provided evidence of his longstanding substance abuse, and expressed remorse during allocution.  The Court held that there was little evidence showing a strong connection between the mitigation and the murders; thus, the mitigation evidence was afforded little weight.

The Court held that a reasonable juror could conclude that the mitigating circumstances were not “sufficiently substantial to call for leniency.”

State v. (Christopher Mathew) Payne, 2013 WL 6252412 (November 21, 2013)
Voluntary intoxication consideration – Failure to consider drug use to rebut (F)(6) aggravator was not fundamental error; defendant was permitted to argue intoxication as mitigation.

State v. (Efren) Medina, 232 Ariz. 391, 306 P.3d 48 (2013)
Defendant’s substance dependency, which included dependency on inhalants, alcohol and marijuana at the time of the murders was undisputed, and impaired his ability to control his conduct or appreciate its wrongfulness.


Continue to A.R.S. § 13-751(G)(2)
     |      Back to Top