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A.R.S. § 13-751(G)(4)

VICTIM'S DEATH NOT REASONABLY FORESEEABLE 

A.R.S. § 13-751(G)(4) provides that it shall be a mitigating circumstance where “[t]he defendant could not reasonably have foreseen that his conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person.”

History:  This was among the original mitigating circumstances enacted in 1973.

A reasonable person standard is used to analyze this circumstance.  State v. Bolton , 182 Ariz. 290, 896 P.2d 830 (1995).  In light of that standard, the circumstance is generally rebutted by a finding that the defendant intended to kill the victim or knew that the victim would likely be killed in the course of the offense.  E.g., State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997); State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997); State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994).


VICTIM'S DEATH NOT REASONABLY FORESEEABLE

State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981)
There was no evidence to prove that this defendant could not have reasonably foreseen that his conduct could cause or would create a grave risk of causing death to another person. The defendant argued that his burden was met because there was no evidence at trial to demonstrate that he had reasonably foreseen the risk of causing death. The Lyons family and Theresa Tyson were shot in the desert for their automobile so that the defendant and his codefendants could continue their escape from prison authorities. The Court noted that the defendant has the burden of proving mitigating circumstances and that burden is not met by the lack of proof.

State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989)
The defendant argued on appeal that the victim's death was not reasonably foreseeable to the defendant because his codefendant shot the victim. The Court noted that the trial judge found that the defendant killed the victim and there was substantial evidence to support that conclusion. The defendant "cannot now allege that he could not have reasonably anticipated that shooting the victim the head at close range might risk killing him." Despite the fact that the victim survived the gunshot wound to the head and later died from exposure in the desert, the defendant's argument that it was not reasonably foreseeable that his conduct would cause death was without merit.

State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992)
Salazar argued that he did not foresee a risk of death to anyone because he entered the victim's residence believing it to be unoccupied. There was ample evidence that the house was occupied and the trial court expressly found that Salazar and his codefendant knew that a frail old woman lived there. After entering the house, Salazar either personally beat and strangled the victim, or at the very least, watched or helped while his codefendant killed her. The trial court correctly concluded that the unforeseeability of the victim's death was not a mitigating circumstance in this case.

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)
Wood argued that he could not reasonably have foreseen that his conduct in the course of the commission of the offense would cause, or create a risk of causing, death to another person. The Court found this claim meritless. Wood "intentionally murdered both victims in cold blood, drawing his gun and shooting in a confined area where he knew others were present."

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 he could not reasonably have foreseen that his conduct during the crime would cause, or create a grave risk of causing, death to another person. On the contrary, the murder of the victim was exactly what the defendant intended when he fired ten to twelve rounds into the body of the victim.

State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995)
The jury found that the defendant acted alone in kidnapping and killing the three-year-old victim. There was no evidence other than the defendant's statements that anyone else was involved. The defendant argued that the physical evidence showed that someone else likely inflicted the fatal wound. It did not. The defendant stabbed the victim in the chest and a reasonable person would foresee that this conduct would create a grave risk of death.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Stokley argued for the first time on appeal that the (G)(4) mitigating circumstance existed. He claimed that at the time this episode first began, there was no plan to cause harm or fatal injury to the victims. After reviewing the entire record, the Court found no facts or evidence to support the existence of this mitigating circumstance.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Under the (G)(4) mitigating circumstance, Roger argued that he was immature, a follower, and idolized his brother. Even if true, such evidence would fail to prove that he could not reasonably foresee his conduct would create a grave risk of death.

State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)
This claim was unconvincing and contrary to the overwhelming weight of the evidence. The defendant and codefendant kidnapped, robbed and murdered the victim. This defendant hit the victim over the head with a rock which fractured his skull.

State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
The defendant argued that he could not foresee the grave risk of death. The Court noted that this claim was without merit. The defendant suggested to the codefendant that they commit a robbery, gave the younger codefendant a gun and told him "no witnesses."

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
The jury found intent to kill from the verdict form. There was medical testimony at trial indicating that a great deal of force was used to commit this murder. The evidence also strongly suggested that the defendant continued to strangle the victim for several minutes after she lost consciousness, despite his claim that he only wanted to stop her from calling the police. The trial judge disagreed with Dr. Bendheim that the defendant lacked the specific intent to kill. The Court agreed with this assessment and rejected the defendant's contention that the risk of death was unforeseeable.

*State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
The trial court properly refused to find Trostle's claim that the victim's death was unforeseeable as either a statutory or nonstatutory mitigating circumstance. Trostle's own statement to police supported a conclusion that the victim's death was not unforeseeable to him. He said that he intended to help steal the victim's truck and he knew from the beginning that its owner would likely be killed.

State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)
The defendant’s planning, deliberation, verbal statements of intent well in advance of the crime, and the actual murder weapon found on his person, strongly point to the foreseeability of the victim’s death.

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