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A.R.S. § 13-751(G)(2)

DURESS 

A.R.S. § 13-751(G)(2) provides that it shall be a mitigating circumstance where “[t]he defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.”

History:  This circumstance was among the original circumstances in the 1973 version of the capital sentencing statute.

What Must Be Proven:  The law presumes every defendant has free will and is held accountable for his actions.  State v. Raymond Tison II, 129 Ariz. 546, 633 P.2d 355 (1981). To rebut the presumption, the defendant must show that someone “coerce[d] or induce[d] [him] to do something against his free will.”  State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1993). Duress has been defined as “any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.”  Id.   In sum, the defendant must persuade the court that his will was overwhelmed by threats or provocation outside himself.  Raymond Tison II;  see State v. Wallace (Wallace II), 154 Ariz. 362, 728 P.2d 232 (1986)(no duress from evidence showing murder not prompted by threats or provocation).

Personality Disorders Distinguished:  Duress is not proven by evidence that shows the defendant’s personality disorders overwhelmed his will.  Brewer; State v.  Castenada, 150 Ariz. 382, 724 P.2d 1 (1986) (impulse control problems do not fall within meaning of duress).

Acting Under Fear/Orders:  A defendant often argues duress with evidence that shows he feared his codefendant and acted under the other’s orders.  This argument usually is not successful.  However, in Mickel Herrera, the Court found duress where the son acted immediately on the father’s orders, and there was psychological testimony indicating a history of physical abuse by the father.  See State v. Mickel Herrera, 174 Ariz. 387, 850 P.2d 100 (1993). Cf. State v. Greenawalt, 128 Ariz. 150, 624 P.2d 478 (1981)(no duress when defendant was armed and acted with relative freedom among codefendants he claimed controlled him); State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)(no duress because defendant was a willing and active participant in murder, even though codefendant was frightening sociopath who planned the crime and influenced defendant).

Victim as Initial Aggressor: Duress is also often argued from evidence that shows the victim was the initial aggressor.  But duress is unlikely to be found if the defendant disarmed the victim before killing him, or if sufficient time elapsed between the provocation and the crime for emotions to cool.  See State v. Williams, 183 Ariz. 368, 904 P.2d 437 (1995); State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983).

Duress is Not Unusual Stress:  Courts have held that duress is not the same as unusual stress, a nonstatutory circumstance.  State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995).


DURESS

State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977)
The trial court did not find duress as a mitigating circumstance. The state argued that the defendant's fear that his wife was going to leave him was a possible motive for the crime. The trial court found that this possible duress was insufficient as a matter of law. The Court agreed and found that the defendant did not meet the burden of proof on this mitigating circumstance.

State v. Ceja (Ceja II), 115 Ariz. 413, 565 P.2d 1274 (1977)
The defendant argued duress as a mitigating circumstance caused by marital problems, an unpromising employment future and his wife's recent miscarriage. The Court agreed with the trial court that duress was not sufficiently proven. Friends and neighbors testified that the defendant was nonviolent and the defendant himself denied any involvement in the murders. There was no evidence of marital or employment problems. In addition, there was no evidence that the miscarriage in March affected the defendant on the day of the murders three months later.

State v. Bishop (Bishop I), 118 Ariz. 263, 576 P.2d 122 (1978)
The defendant argued that he was under unusual and substantial duress in that he feared the victim and killed him in self-defense. The evidence shows otherwise. The defendant planned to kill the victim for over a day because he wanted the defendant's car and disliked his drinking habits. The victim was struck several times with a claw hammer. The defendant then removed the victim's shoes, wallet and money. The victim was hog-tied and dropped into a mineshaft where rocks were thrown on him. The crime scene was cleaned up and some of the victim's possessions thrown away. This does not indicate signs of duress.

State v. Bishop (Bishop II), 127 Ariz. 531, 622 P.2d 478 (1981)
The defendant argued that he was under duress. However, the evidence is clear that the defendant was the aggressor and was not afraid of the victim. The defendant and his accomplice were in control of the situation at all times. See Bishop I.

State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981)
The defendant argued that he was virtually under the control of the Tisons during the entire criminal episode. He was shaking and nervous during the escape. The Court agreed with the prosecution that the defendant's anxiety about getting captured or shot explained any nervousness. Furthermore, he was armed and had a relative degree of freedom in Flagstaff. The defendant did not prove duress as a mitigating circumstance.

State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
Tison argued that the psychological reports establish the strong manipulative influence his father had on him. Tison had helped his father and Randy Greenawalt break out of prison and the murders were committed during the course of the group's flight from authorities. The Court concluded that the psychological reports did not support Tison's claim. Although the psychologist believed that the father applied subtle and continual influence on Tison, he concluded that Tison had no thought disorders and became involved in the events "on his own volition, planning it carefully, not under the influence of drugs or alcohol, not under any threat or undue persuasion and certainly not in a state of psychosis or high mental disturbance." Further, Tison planned the escape from the beginning and continued with his father before and after the murders, even though there were obvious opportunities to dissociate from him.

State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
The defendant argued that he was strongly manipulated by his father and that this constituted duress. The psychologist did find a subtle sense of emotional manipulation on the father's part, which may have contributed to the defendant's amoral and somewhat antisocial development. The psychologist concluded that the defendant was not operating under any kind of irresistible urge. The law presumes that all people possess a free will and are held accountable for their conduct. Even with Gary Tison exerting some influence over this defendant, the evidence does not show that the defendant's will was overwhelmed. This is not sufficiently substantial to call for leniency.

State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981)
Although the defendant did not specifically argue "duress" as mitigation, on appeal he argued that the crime was a classic lover's triangle, and an emotionally unstable situation. He also argued that the victim was in immediate control of a knife at the time of his death. He further argued that although the jury rejected the defendant's claim of self-defense, the evidence supported a conclusion that the victim was a violent person and before his death had violent altercations with several men while armed with a knife. Without further discussion, the Court stated that these contentions did not "constitute sufficiently mitigating factors."

State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983)
Although it does not appear that the defendant specifically claimed "duress" as a mitigating circumstance, he did argue that his stormy love-hate relationship with the victim raised a classic provocation situation and that the crime was one induced by the heat of passion. But there was nothing in the record to support this. Several months before the murder, Jeffers learned the victim may have been an informant against him. One week prior to the murder, Jeffers met with the victim and discussed the possibility she had been an informant against him. The victim also advised him that she was now a prostitute and would charge for her favors, but Jeffers testified that he had accepted the situation and was not angry. The Court concluded that even if the victim's actions constituted adequate provocation, there was sufficient time between the provocation and the crime for passions to "cool." The Court agreed with the trial court's finding that Jeffers may have had some reason to be provoked and was under some stress, but "nothing more."

State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984)
This mitigating factor was not established. The defendant testified that he was afraid of the codefendant and that his involvement in the murder was a result of direct threats on his life by the codefendant. The trial court called this testimony "blatant perjury." The Court agreed that this testimony lacked credibility. The defendant was a willing participant in the murder.

State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985)
Duress was not supported by the evidence. The defendant claimed in his statements to the police that he was an unwilling participant in the crimes, and was coerced by a teenager. He stated that he acted only as a lookout and was forced to drive the victim's truck by his companion. He indicated that someone else had gone berserk during the robbery and killed the two men on the ranch. The jury rejected this in its verdict and the judge specifically found that the defendant intended to kill either himself or through his companion. The defendant had told a friend that he had killed the two men on the ranch because he was very "macho."

State v. Rossi (Rossi I), 146 Ariz. 359, 706 P.2d 371 (1985)
The trial court thought that in order for duress to be a mitigating factor, it would have to rise to the level of a defense. This is the wrong standard for determining and applying mitigating factors, so the Court remanded the case for resentencing.

State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)
Duress was not found in this case. Duress is defined as any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another and actually inducing him to do an act contrary to his free will. The defendant argues that his personality disorder and impulse control problems amounted to duress. The Court disagreed that such a mental condition can fall within the meaning of duress.

State v. Wallace (Wallace I), 154 Ariz. 362, 728 P.2d 232 (1986)
Wallace argued that the trial court should have found that he murdered his girlfriend and her two children while under "unusual and substantial duress." The basis for the duress claim appeared to be his girlfriend's demand that he move out of their mobile home. The Court found that Wallace's situation did not meet the definition of duress. That definition is "any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will." While Wallace's relationship with his girlfriend may have been strained, there is no evidence that he murdered because of threats or provocation. As part of the duress claim, the Court also considered Wallace's claim that the crimes were the result of passion. The Court concluded that the murders could not be characterized as an act of passion. Wallace told a psychiatrist that his argument with his girlfriend was relatively mild in comparison to other arguments and that he expected her to ask him to come home just as she had on other occasions. The psychiatrist testified that Wallace showed neither anger nor resentment toward his girlfriend for having asked him to leave the house. The evidence did not support the claim that the murders were an act of passion.

State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992)
Duress is defined as any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will. Citing Castaneda, the Court finds that the meaning of this definition is that one person must coerce or induce another to do something against his will. Personality disorders do not fall within the meaning of duress. The record shows, and the Court considered, that the defendant did experience some duress during the events leading up to the murder. This was, however, only a minimal mitigating factor.

*State v. Mickel Herrera, 174 Ariz. 387, 850 P.2d 100 (1993)
The Court found that the defendant proved by a preponderance of the evidence that he committed the murder under substantial duress because his father ordered him to shoot the victim. To satisfy the (G)(2) statutory mitigating circumstance, the defendant must be under unusual or substantial duress at the time of the crime. The Court has defined duress as "any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will." Here, the father's directions to his son, the defendant, to shoot the victim were substantial and immediate. The defendant had little time to consider the consequences of his actions. Further, the defendant's family background supports the contention that the defendant shot the victim under duress from his father's orders to shoot. The defendant's father drank to excess and was physically abusive to the defendant, his brothers and his mother. The Court found the mitigating circumstances taken as a whole (duress, young age, dysfunctional family background, borderline I.Q. and alcohol use at the time of the crime) required leniency and reduced the sentence to life.

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)
The Court rejected Wood's claim that he was under unusual and substantial duress. For this mitigating circumstance to apply, one must coerce or induce another to do something against his will. There was no evidence that Wood was coerced in any way, and impulse control problems do not constitute duress. The (G)(2) mitigating circumstance did not exist.

State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
Duress was not proven in this case. The Court adopted the findings of the trial court that the defendant did not prove that he was under substantial or unusual duress. The trial court did not believe any evidence suggesting that the defendant was acting at the direction of the younger codefendant or that the defendant was not the person primarily responsible for the victim's death.

State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)
To find duress, one person must coerce or induce another to do something against his will. The victim went to the defendant's apartment, acted belligerently and confronted the defendant with a gun. However, the defendant disarmed her shortly after she displayed the gun and thereafter no longer posed a threat to him. After she was disarmed, there could not have been any duress. Duress has not been proven nor has the victim's status as the initial aggressor been shown to be a relevant mitigating circumstance.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
On appeal, Roger raised the (G)(2) mitigating circumstance, arguing that he must have been doing whatever Robert desired in committing the crimes. At the sentencing hearing, a sociologist testified that Roger looked up to his brother Robert. The Court noted that duress involves some means tending to coerce the will of another and inducing him to do an act contrary to his free will. Roger failed to show how his alleged desire to please his brother amounted to duress.

State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995)
It was unclear from the trial court's special verdict whether the trial judge was making a finding of duress, as a statutory mitigating circumstance, or unusual stress, a nonstatutory mitigating circumstance. The Court concluded that the trial court made a finding of unusual stress as a nonstatutory mitigating circumstance. See discussion of stress.

State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
The only evidence of duress was the testimony of the defendant that Frank Sperlazzo was involved in the murders.  The defendant testified that Sperlazzo was mad at victim Robert Weaver because Robert owed him money for drugs, that Sperlazzo was at the Gumina residence on the night of the murders, and that Sperlazzo killed Tisha Weaver.  Furthermore, another witness told the state’s investigator that he saw Frank Sperlazzo near the Gumina residence on the day before and the night of the murders.  This evidence is insufficient to prove that Frank Sperlazzo was a participant in the murders.  The witness’ story that he saw Sperlazzo on the night of the murders was discredited when it was determined that he could not possibly have seen the Gumina residence from where he claimed to have been.  The physical evidence at trial indicated that all three victims were attacked with the same type of blunt instrument.  This mitigating circumstance was not proven.

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)
Miller argued that the trial court failed to consider specific instances of nonstatutory mitigation, including duress, which he raised for the first time on appeal. But the trial court said that it had considered all statutory and nonstatutory mitigation, including mitigation that Miller did not offer. Moreover, this alleged mitigating factor was not supported by the record.

*State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
To prove "unusual and substantial duress" under the (G)(2) mitigating circumstance, a defendant must show that he was coerced or induced to commit the offense against his own free will. Although Trostle expressed a general fear of being attacked if he did not go along with his friends, there is no evidence that his codefendant or anyone else forced Trostle to participate in the crime. The trial court correctly refused to find duress as a statutory or nonstatutory mitigating circumstance.

State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
The defendant claims that he was under substantial or unusual duress when he murdered the victim. Duress means that one person must coerce or induce another to do something against his will. The evidence shows that Langston was a frightening sociopath who planned the crime. The fact that Langston masterminded and influenced the defendant does not in itself prove duress. The evidence shows that the defendant was a willing and active participant and was neither induced nor coerced to act contrary to his free will.

State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)
Duress is a mitigating circumstance when it is unusual and substantial.  The trail court found, and the Court agreed, that there was no evidence in the record to indicate that the defendant acted under unusual or substantial duress in committing this murder.

State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
The defendant claimed he was under emotional duress when he committed the robberies because he needed money for drugs. The Court affirmed the trial court’s rejection of duress as a mitigating factor, holding that the definition of duress involves illegal imprisonment, threats of harm, or other conduct tending to coerce another’s will, and actually inducing him to act contrary to his own free will.

State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
The defendant was under unusual and substantial duress caused by money, house and child custody worries. These concerns rose to the level of a mitigating circumstance.

State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111 P.3d 369 (2005) Jury Trial/Indep. Review
The court found no “credible” evidence that Anderson feared 19-year-old Bobby Poyson and was coerced by him into committing the triple murders.

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