Capital Sentencing Guide

MENTAL

A.R.S. § 13-703(G)(1)-MENTAL IMPAIRMENT

State v. Richmond (Richmond I),
114 Ariz. 186, 560 P.2d 41 (1976)
The Court agreed that the evidence did not establish that Richmond's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was "significantly impaired." The psychiatric testimony presented by the defense characterized Richmond as a sociopath, that is, someone with a character or personality disorder. The Court concluded that a character or personality disorder did not qualify as an impairment within the meaning of A.R.S. §13-751(F)(1) (the earlier version of (G)(1)).

*State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977)
The Court found that the defendant's mental condition was a substantial factor in causing the death of the victim. The defendant's capacity to control his conduct was significantly impaired. That impairment was enough to call for leniency. There was very little discussion of the mental impairment in mitigation. However, the Court did discuss the defendant's mental problems during its review of the trial issues in the case. While the defendant was found to be competent and sane, there was testimony from psychiatrists that the defendant suffered from a mental illness.

State v. Joseph Smith, 123 Ariz. 231, 599 P.2d 187 (1979)
A psychiatrist and psychologist testified that the defendant was a borderline psychotic with compulsive behavior. The state rebutted this evidence with the testimony of Dr. Cleary who opined that the defendant did not act out of compulsion and was not impaired. The defendant argued that Dr. Cleary's evaluation was based not on an examination of the defendant, but on unsubstantiated statements of police officers in police reports. The record reveals that Dr. Cleary based his evaluation on both his interview with the defendant and on police reports. A medical doctor may give expert testimony based in part on hearsay. There was sufficient evidence to support the trial court's determination that the defendant could appreciate the wrongfulness of his conduct or could conform his conduct to the requirements of the law. The evidence was contradictory so the trial court's refusal to find the existence of this mitigating factor was not an abuse of discretion.

*State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979)
The evidence supported the trial court's finding that the defendant's ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired. A psychiatrist testified that Brookover had a neurological lesion, probably of prenatal origin, which made it difficult for him to undergo normal character development, and that this type of lesion has a tendency to lead the individual in the direction of antisocial or asocial behavior. The psychiatrist further testified that there was a "relinquishment of one's self autonomy" and a "suspension of reality," and that the defendant's capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the law was significantly impaired. The Court reduced Brookover's sentence to life, finding that his mental condition was not only a mitigating factor, but a "major and contributing cause of his conduct" and sufficiently substantial to outweigh the aggravating circumstance of his prior conviction.

State v. Evans, 124 Ariz. 526, 606 P.2d 16 (1980)
Upon resentencing, the trial judge determined that this mitigating factor was not established. The Court agreed. The testimony of Dr. Cleary, a psychiatrist, conflicted with two reports from another psychiatrist who had examined the defendant several years prior to the murder. Dr. Cleary examined the defendant several years after the murder. Dr. Cleary found that there was a strong possibility that on the day of the murder, the defendant's ability to conform his conduct to the requirements of the law might have been impaired. The trial judge considered this testimony along with the defendant's conduct at the time of the crime, and his conduct and demeanor during the trial. The trial court concluded that the mitigating circumstance had not been proven.

State v. Arnett (Arnett II), 125 Ariz. 201, 608 P.2d 778 (1980)
The trial judge noted the defendant's "serious emotional problems" and nervous breakdown as contributing to his inability to adhere to any legal standards or code of responsibility other than his own. The Court agreed with this assessment.

State v. Steelman (Steelman II), 126 Ariz. 19, 612 P.2d 475 (1980)
The Court found Steelman's capacity to conform his conduct to the law was significantly impaired at the time he participated in these murders. The evidence at trial was contradictory as to whether Steelman had understood the nature of his criminal acts and had appreciated their wrongfulness, as required by the M'Naghten test, and the jury resolved the issue against him. The record included reports or testimony from fourteen psychiatrists who examined Steelman at various times after the murders. Nine psychiatrists agreed that Steelman was suffering from severe mental illness, which most described as paranoid schizophrenia. Seven of those psychiatrists believed he was M'Naghten sane, but that his capacity to conform his conduct to the law was severely impaired by his delusional thinking, especially his strong tendency to transform others into enemies who deserved to be destroyed. One psychiatrist believed he was M'Naghten insane, and the ninth doctor said he was "probably" M'Naghten insane. Only three psychiatrists stated unequivocally that Steelman was a sociopath, and two of them had examined Steelman while he was taking antipsychotic drugs, which would mask psychotic symptoms. The strong psychiatric testimony was corroborated by Steelman's own statements after his arrest and at trial, by his mother's testimony, by his ex-wife's account of their marriage, and by records of time spent in two California mental institutions. Although the Court found that the (G)(1) statutory mitigating circumstance existed, it was not sufficiently substantial to call for leniency when weighed against the aggravating circumstances.

State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980)
The Court noted, without further discussion, that the defendant argued his emotional problems produced by an antisocial personality were mitigating. The Court, as well as the trial court, found that the cumulative mitigation proffered by the defendant was not sufficiently substantial to call for leniency.

State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981)
A psychiatrist diagnosed the defendant as having a borderline organized personality structure. The defendant occasionally experiences breaks with reality. He lacks self-identity and becomes submissive to the will of a more dominant personality. This psychiatrist opined that the defendant's judgment and ability to perceive reality was severely disabled. A different psychiatrist found no signs of extreme dependence given the independent roles the defendant had played in previous killings. This second psychiatrist saw no sign of psychotic behavior to support a diagnosis of borderline personality, and concluded that the defendant did not suffer from any disease or defect which constituted impaired capacity. The burden of proving mitigating circumstances is on the defendant. The trial court was not compelled to accept the findings of one of the psychiatrists over the other. The claim of impaired capacity was not substantiated.

State v. Vickers (Vickers I (Ponciano murder)), 129 Ariz. 506, 633 P.2d 315 (1981)
The defendant argued that his sociopathic-psychopathic personality significantly impaired his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The Court disagreed. It noted that in Richmond I it held that character disorders cannot be used to establish mitigation because it does not qualify as an impairment. Here, the Court clarified that even if the (G)(1) standard is not met, all mitigating circumstances must be considered before imposing the death penalty. The defendant may then present additional evidence to show that the disorder is capable of significant impairment. The trial court heard and considered the evidence establishing the defendant's character disorder. However, there was no evidence presented that proved that the disorder influenced the defendant's behavior and impaired his capacity at the time of the murder.

State v. Joseph Smith (Joseph Smith II), 131 Ariz. 29, 638 P.2d 696 (1981)
Upon resentencing, the trial court found that the evidence put forth by the defendant to show his impaired capacity was insufficient. The Court agreed with that conclusion. Dr. Hoogerbeets testified that the defendant was mentally disturbed. When asked by the prosecutor if his mental disorder was such that he could not conform his conduct to the requirements of the law, Dr. Hoogerbeets indicated that the defendant acts compulsively based on inner conflicts. Dr. Goldberg classified the defendant as a sadistic sexual slayer yet also described him as well compensated. She assumed that her definition of the defendant fit him because he was convicted of raping and killing two young girls by stabbing them and stuffing dirt into their mouths until they suffocated. On the other hand, Dr. Cleary testified unequivocally that the defendant had no mental disorder. Dr. Cleary did not find that the defendant suffered from any compulsion.

The Court found the clear testimony of Dr. Cleary to outweigh the "inexplicit and often equivocal" testimony of the defendant's witnesses. The Court concluded that the evidence did not convincingly establish that the defendant's capacity to conform his conduct to the requirements of the law was significantly impaired. The defendant attempted to establish that he was a borderline psychotic and that his capacity to control his conduct was significantly impaired. The finding on appeal is not that the defendant's mental impairment does not constitute a mitigating factor, but that the defendant has failed to establish the existence of any mental impairment at all. The Court found that the psychiatric testimony offered by the defendant does not constitute a mitigating factor other than what is set forth in A.R.S. §13-703(G) (now 13-751(G)). The defendant is not contending that he suffers from a character disorder that was not recognized as a mitigating factor prior to Watson.

State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1982)
The Court noted that the trial court found that the defendant's ability to distinguish right from wrong was not a mitigating circumstance under the facts of this case. Without further discussion, the Court concluded that the defendant's mitigation evidence was not sufficiently substantial to call for leniency.

*State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983)
The Court did find the existence of significant impairment under A.R.S. §13-751(G)(1). One psychiatrist opined that Valium intoxication impaired the defendant's ability to reason and exercise his usual judgment. Another psychiatrist stated that the defendant had a long history of drug abuse, neurological problems and brain damage. The presentence report indicated that the defendant was taken at age 7 to mental health professionals and put on drugs. The defendant's prior record consists of property offenses unlike the violent crime for which he has been convicted. The defendant is described as passive, nonaggressive and a follower.

State v. McMurtrey (McMurtrey I), 136 Ariz. 93, 664 P.2d 637 (1983)
The case was remanded for resentencing because the trial judge did not properly consider the mitigating evidence of impairment offered by the defendant. The trial court must first evaluate evidence regarding the defendant's mental condition to determine it if meets the requirement of (G)(1). The trial court did that here. It found that the defendant had an antisocial personality. The trial court concluded that because such kinds of character defects are not mitigating under Arizona law, no further evaluation of that evidence took place. Under Lockett and Watson, the inquiry should not end there. The trial court must examine the evidence further "to determine whether it in some other way suggested that [the defendant]…should be shown leniency."

State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
The statutory (G)(1) mitigating circumstance of significant impairment was not established by testimony from family members that Smith had polio as a small child, which may have caused him some brain damage. The Court did "take notice" that Smith had low intelligence - an I.Q. of seventy-one, or approximately at the second percentile. After considering all the mitigation presented, the Court found the cumulative mitigation "significant," but not sufficiently substantial to call for leniency in light of the extreme cruelty and brutality of the crime.

State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984)
The defendant argued that he had been promised but never given psychological care while previously in custody. The Court did not directly address this claim, other than to note that there was no evidence that defendant's capacity was substantially impaired at the time he participated in this murder.

State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984)
The Court noted, without further discussion, that the trial court found Chaney's mental state was not a mitigating circumstance sufficiently substantial to call for leniency. The Court also concluded that the mitigation in this case was "minor at best." The Court does not discuss the mental state evidence that was presented in mitigation or considered in connection with the sentencing decision. But it is apparent from a discussion of expert testimony issues that Chaney presented an insanity defense at trial, based on temporal lobe epilepsy. One of Chaney's experts concluded there was a 65% chance Chaney suffered from organic brain disorder, but the expert would not testify that at the time of the homicide Chaney was influenced by the disorder. Chaney's other expert concluded that Chaney had the organic brain disorder called temporal lobe epilepsy and that he was under its influence when he committed the homicide. The state's experts both testified that Chaney did not have any organic brain disorder. One of the state's experts testified that Chaney's expert misread the EEG printout, and that properly read, there was no evidence of organic brain disorder. Although temporal lobe seizures involve a lack of self-control, Chaney's actions indicated deliberate choices. Chaney also exhibited no amnesia, which is one of the symptoms of temporal lobe epilepsy.

State v. Clabourne (Clabourne I), 142 Ariz. 335, 690 P.2d 54 (1984)
Despite raising this factor, the defendant offered no evidence to show that his mental capacity was significantly impaired. Both psychiatrists testified that the defendant knew what he was doing and understood the difference between right and wrong. Neither found evidence of delusions or fantasies. A psychiatrist who treated the defendant during his adolescence testified that the defendant might have had schizophrenia during childhood, but could not testify regarding the defendant's state of mind during the murder.

State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985)
The defendant offered credible evidence that he was mentally impaired at the time of the murder. In contrast, the prosecution offered equally credible rebuttal evidence that although the defendant suffered some mental impairment, it was not significant enough to be a mitigating circumstance. The defendant's evidence did not outweigh the prosecution's evidence. The Court stated that it did not find this to be a mitigating factor.

State v. Gerlaugh (Gerlaugh II), 144 Ariz. 449, 698 P.2d 694 (1985)
A psychiatrist testified for the defense at the Rule 32 hearing. The portrait that emerges of the defendant is that he is a remorseless, bullying sociopath who victimizes others for the "macho thrill" of proving his "superiority" over them and his contempt for society's laws. The defendant killed for the status he received by being able to escape the consequences of his actions. There is no reasonable probability that this evidence would establish a mitigating circumstance. The existence of a mere character or personality disorder like sociopathy is not alone sufficient to constitute a mitigating circumstance. This kind of evidence should be considered by the trial judge because it may suggest some reason other than the nature of the disorder why the defendant should receive some leniency, such as a difficult family history. The trial judge may refuse to find a mitigating circumstance so long as he considers this evidence. The evidence here did not establish a mitigating circumstance. The evidence showed that the defendant had a fairly normal home environment and was not abused as a child. See drugs/alcohol and difficult childhood/family history sections.

State v. Rossi (Rossi I), 146 Ariz. 359, 706 P.2d 371 (1985)
The trial court thought that in order for significant mental impairment 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. Correll, 148 Ariz. 468, 715 P.2d 721 (1986)
Correll argued that his psychological problems prevented him from understanding the wrongfulness of his conduct. Correll reported that he received psychological therapy as a teenager for emotional depression, explosive anger, and violent behavior. Other than Correll's statements, there was no evidence or expert testimony to support a finding that Correll was unable to appreciate the wrongfulness of his conduct. Correll's uncorroborated statements were insufficient evidence of impaired capacity.

State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)
One expert stated that being a sexual psychopath is a personality disorder as opposed to a mental illness. Another expert concluded that the defendant was not suffering from a recognized, treatable mental illness that would render him incompetent. Both experts concluded that the defendant knew the difference between right and wrong and was not suffering from an inability to control his impulses at the time of the murder. (G)(1) is not supported by this evidence.

State v. McMurtrey (McMurtrey III), 151 Ariz. 105, 726 P.2d 202 (1986)
There was conflicting evidence of the defendant's mental state at his aggravation/mitigation hearings. One defense expert testified that the defendant had a major depressive disorder and an antisocial personality. This expert also stated that the defendant was impulsive and would have had trouble controlling his emotions. This expert was not able to give an opinion as to the defendant's mental state at the time of the murders. A second defense expert stated that the defendant was in a "dissociative" state at the time of the murders and that the defendant was M'Naghten insane. One of the state's experts emphatically stated that the defendant was not M'Naghten insane and the defendant exhibited no delusional thinking. Another expert for the state testified that the defendant was legally sane. At the first sentencing hearing, one of the defense experts recounted his trial testimony and opined that the defendant may have acted because of an irresistible impulse. At the third sentencing hearing, another expert stated that the defendant was impaired because of alcohol and drugs. This expert was impeached by showing that in his evaluation of the defendant the expert utilized only the grand jury transcripts and did not read the testimony of the several eyewitnesses at trial.

There was additional evidence that the defendant had emotional problems from his father shooting and killing his mother when the defendant was seven years old. The defendant was also hospitalized for emotional problems when he was fifteen years old. The Court did not find sufficient evidence of an impairment under (G)(1). The state's experts were clear and unequivocal while the defense experts were less than exact. The defense was unable to precisely show how any emotional or mental impairment substantially caused the murderous conduct. See also drugs/alcohol section.

State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (1987)
The Court noted that the one mitigating circumstance found by the trial court - that of "significant impairment" - did not outweigh the aggravating circumstances. No further discussion of the impairment evidence is provided, but it appears that the defendant had presented an insanity defense at trial, which the jury rejected.

*State v. Mauro (Mauro II), 159 Ariz. 186, 766 P.2d 59 (1988)
Dr. Gerstenberger testified that the defendant could not appreciate the wrongfulness of his act and was insane because he suffered from bipolar affective disorder. The expert explained that this is a chemical disorder in the brain. The state's expert, Dr. Cleary, testified that the defendant was not insane, and that the defendant's conduct was symptomatic of a compulsive personality disorder. The Court concluded that the defendant's capacity to control his conduct was significantly impaired and was a sufficiently substantial mitigating circumstance to outweigh the aggravating factors.

State v. Wallace (Wallace II), 160 Ariz. 424, 773 P.2d 983 (1989)
The defendant argues in this second direct appeal that the trial court improperly did not find the mitigating circumstance of mental impairment under (G)(1). Dr. Gurland testified that the defendant was in a dissociative state at the time of the murders. Two other experts testified for the state that the defendant was not significantly impaired and that he showed no signs of being in a dissociative state. During Dr. Gurland's testimony, the defendant himself interrupted the proceedings with an outburst denying the doctor's statement that the defendant had had a difficult childhood. The defendant also indicated that Dr. Gurland must have been talking about someone else. The trial court was not compelled to accept Dr. Gurland's opinion. Two other doctors contradicted his opinion and the defendant himself contradicted Dr. Gurland. The Court agreed with the trial court that the defendant failed to establish the statutory mitigating circumstance of significant impairment.

*State v. Jimenez, 165 Ariz. 444, 799 P.2d 785 (1990)
The defendant was examined by several doctors during this case. Dr. Bencomo concluded that the defendant had a borderline level of intelligence and suffered from a mental illness. Dr. Enos found that the defendant acted under a compulsion that he could not control. With a direct relationship between the mental disease and the crime, the defendant suffered from a mental disease of a schizophrenic nature. Dr. Amezcua-Patino believed that the defendant was psychotic at the time of the crime, but that the defendant knew the difference between right and wrong and was not committable to a mental institution at that time. Dr. Beaver indicated a history of command hallucinations and schizophrenic symptoms and that the crime could not be separated from the disease. Dr. Beaver opined that the defendant was acutely schizophrenic at the time of the murder, and that while the defendant probably knew that what he was doing was wrong, he could not resist the hallucinations. Dr. Garcia-Bunuel found a major mental disorder. Dr. Kruchek noted that the defendant was suffering from a schizophrenic disorder, paranoid, and because of the compelling nature of the hallucination was not able to conform his conduct to the requirements of the law. Dr. Kruchek testified that he had diagnosed the defendant with schizophrenia, a psychotic illness. Dr. Dean also diagnosed borderline intelligence and paranoid schizophrenia. Dr. Bencomo advised the trial court that the defendant is a seriously mentally ill individual who would not have had the ability to form any malicious intent. Dr. Bencomo opined that the defendant could not have planned a premeditated murder.

The Court concluded this extensive review of the medical and psychological evidence in the record by indicating that the defendant had proven by a preponderance of the evidence that his mental capacity was so impaired that he was unable to appreciate the wrongfulness of his conduct and was unable to conform his conduct to the requirements of the law. This mental incapacity was a substantial mitigating factor and a major contributing cause of his conduct sufficiently substantial to outweigh the aggravating circumstances. The heinousness and depravity of the crime were directly related to the defendant's mental impairment, as was the unfortunate circumstance of the victim being a helpless child under the age of 15. Given the strong evidence of the severity of the defendant's mental illness, combined with the substantial and relevant factor of the defendant's young age and borderline intelligence affecting his maturity, leniency is required.

*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 drugs/alcohol section.

State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991)
The Court agreed with the defendant that it is not incongruous that a mental disorder that causes 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. 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." The trial court was not compelled to accept the opinion of a defense expert. In light of the conflicting evidence regarding the defendant's mental impairment at the time of the murder, the trial court would have been justified in finding that mental impairment was not a mitigating circumstance at all.

The defense psychologist diagnosed the defendant as having a "delusional paranoid disorder, jealous type," which exists within the context of an "obsessive-compulsive personality disorder." He also 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, that he did not listen to the tape recording of the murder, and that the defendant had no indications of organic brain disorders. The state rebutted the defense psychologist's testimony with testimony from a psychiatrist who found insufficient psychiatric symptomology to support the diagnosis of "delusional paranoid disorder, jealous type" and "obsessive-compulsive personality disorder" and "alcoholic dependence, binge type." Based on this record, the Court found that the trial court did not improperly discount the defendant's mental impairment as a mitigating circumstance.

State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991)
There was no evidence that the defendant's capacity to appreciate the wrongfulness of his conduct was impaired or that his capacity to conform his conduct to the requirements of the law was significantly impaired. See also drugs/alcohol section. The defendant proffered his dependent personality traits, inability to form and maintain close relationships, and his inability to take responsibility in mitigation. The Court noted these, but did not discuss them. The Court only stated that the defendant appeared to have done well in his nursing home employment. The Court concluded that this was insufficient to warrant leniency.

State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)
Cook claimed that the trial court ignored the undisputed facts and opinions regarding his psychological and neurological history contained in the record, and refused to consider his history of mental problems as a mitigating circumstance. The trial court stated that it had considered Cook's history of mental problems, as evidenced by the Rule 11 reports and the presentence report, and Cook's previous attempts at suicide. But the trial court did not find any connection between those prior mental problems and the crimes committed in this case. The trial court noted that Cook's impressive manner of conducting his criminal defense reinforced the court's impression that whatever prior mental problems he may have had were in the past and did not directly impact upon his commission of these murders. The trial court's ruling that the evidence of mental problems was insufficient to establish "significant impairment" of Cook's capacity was based on the trial judge's assessment of the weight and credibility of the evidence, and consequently, the Court deferred to his conclusion. Additionally, the Court was satisfied from the record that the trial judge's consideration of the evidence of Cook's mental history in connection with the (G)(1) statutory mitigating circumstance was sufficient to have identified any independent mitigating effect weighing in favor of leniency. After conducting an independent review of the record, the Court found that Cook's mental history did not require leniency when balanced against the aggravating factors.

State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992)
The Court listed the defendant's various emotional and psychological problems such as a defective personality structure, immaturity, suicidal impulses, phobic reactions, detachment, and feelings of depression, dependency and inadequacy. Both mental health experts diagnosed the defendant's condition as borderline personality disorder. The defense claims that this disorder impaired the defendant's ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. A mere character or personality disorder alone is insufficient to constitute a mitigating circumstance. The Court distinguishes between personality disorders and mental impairments. Mental impairments have a far greater mitigating effect because they may evidence an inability of the defendant to control his conduct. This case does not involve the same level of mental disease or defect considered in other (G)(1) cases.

Although the defendant's personality disorder does not rise to the level of a statutory impairment, the Court must consider whether it should be given independent mitigating weight. The evidence shows that the personality disorder existed. It does not prove that at the time of the crime the disorder controlled his conduct or impaired his mental capacity to such a degree that leniency is required. The Court refused to equate the defendant's willingness to control his actions with his ability to do the same. The defendant held off his impulses long enough to put the victim's dog in another room before beginning his attack on the victim. The defendant's ability to conform his conduct to the requirements of the law was perhaps minimally impaired, but not such that it constitutes a defense to prosecution or a significant mitigating factor. It is unquestioned that the defendant appreciated the wrongfulness of his conduct. Both mental experts found the defendant to be legally sane with superior cognitive abilities. There was no suggestion that the defendant did not know the difference between right and wrong. The record makes clear that the defendant made a conscious and knowing decision to murder the victim and was fully aware of the wrongfulness of his actions.

*State v. Mickel Herrera, 174 Ariz. 387, 850 P.2d 100 (1993)
At his sentencing, the defendant asked the court to consider the results of his psychiatric evaluations as a nonstatutory mitigating factor. The psychiatrists concluded that the defendant was in the "borderline" range of intellectual functioning, in the lowest part of the average range of intellectual functioning, although not "mentally retarded." The trial court found that the defendant's "borderline" I.Q. was not mitigating. The Court, however, gave weight to the defendant's borderline I.Q. as nonstatutory mitigation. 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. Schurz, 176 Ariz. 46, 859 P.2d 156 (1993)
The Court concluded that this mitigation was not entitled to enough weight to call for leniency. 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. That report 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 drugs/alcohol section.

State v. Runningeagle, 176 Ariz. 59, 859 P.2d 169 (1993)
The defendant's psychological evidence did not warrant a finding under (G)(1) that his capacity was significantly impaired. One psychologist said that the defendant has always been fully aware of his own behavior and the probable consequences of this behavior. Further, there was a rather complete lack of empathy or feelings toward any victim. Another psychologist said that the defendant is in control of his behavior at all times, but has a habitual pattern of doing what he wants. Additionally, the defendant's parents testified that he was intelligent, accepted responsibility and received good grades in school. The trial court did not err in finding that the defendant was not suffering from any mental disease or disorder that would impair his capacity.

State v. Rudi Apelt, 176 Ariz. 369, 861 P.2d 654 (1993)
The Court determined that this mitigation was not proven. The defense psychiatrist testified that the defendant had developed a pattern of doing almost automatically anything that his brother Michael wanted him to do. A character or personality disorder is not usually sufficient to satisfy the (G)(1) mitigating circumstance. Normally, an identifiable mental disease or psychological defect must exist before the Court finds a person significantly impaired. Both psychiatrists agreed that the defendant was not suffering at the time of the murder from any such identifiable disease.

*State v. Stuard, 176 Ariz. 589, 863 P.2d 881 (1993)
The trial judge found that the defendant's capacity to conform his conduct to the requirements of the law was significantly impaired. The Court agreed with this conclusion but felt that the trial court did not give sufficient weight to the psychiatric testimony. The Court reduced the sentence on each of the three murder convictions from death to life imprisonment. Dr. Tatro, a psychologist who testified for the defense, diagnosed the defendant with a serious maladaptive personality disorder and organic brain damage. Dr. Blackwood also testified that the defendant had organic brain dysfunction and an I.Q. of 74. Dr. Scialli, a psychiatrist who testified for the state, concluded that the defendant suffered from dementia. The defendant's impulse control was so tenuous and impaired by brain damage that he would have flown into a sudden explosive rage when confronted by the victims. Dr. Scialli stated that the defendant's mental illness impaired his ability to carry out his criminal goals efficiently. Therefore, when he ventured out to commit a less serious crime, he ended up committing murder. The murders were the unfortunate result of his mental impairment. Like the other doctors, Dr. Scialli thought that the defendant's boxing career could have caused his brain damage.

All three experts agreed that the defendant was mentally impaired at the time of the murders and that this impairment contributed to the homicides. (G)(1) was written in the disjunctive, and the Court agrees with the trial court that the defendant's capacity to conform his conduct to the requirements of the law was significantly impaired. Therefore, the defendant has established the (G)(1) mitigating circumstance. The Court weighed the evidence and concluded that it could not impose the death penalty when the murders were so significantly based on organic mental illness. Note: A strong dissent from Justice Martone evaluated the mental health evidence differently. The dissent concluded that the trial judge was correct in his assessment of the evidence when he found that the (G)(1) impairment existed, but did not outweigh the aggravating factors.

State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)
The defendant suffered from post-traumatic stress disorder prior to and around the time of the murder, as a result of his combat service in Vietnam. The Court found that in an appropriate case, the evidence of post-traumatic stress disorder could constitute mitigation. But in this case, the two doctors who examined the defendant could not connect his condition to his behavior at the time of the conspiracy and the murder.

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
The trial court found the defendant's psychological history to constitute a substantial mitigating circumstance. The Court agreed with this analysis without discussion. See also drugs/alcohol section.

State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
The defendant argued his psychological history 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 not significantly impaired. Wood's own words belied the notion that his capacity to appreciate the wrongfulness of his conduct was diminished. After police shot him, he heard the police radio dispatcher ask whether "the bad guy" had been apprehended. Wood said, "I'm the bad guy." In addition, there was insufficient evidence that Wood's capacity to conform his conduct to the law was significantly impaired. Neither of the psychologists who evaluated Wood could directly address Wood's conduct on the date of the murders because he maintained that he had no recall of the events. One psychologist testified that Wood was an individual who would act out in an impulsive fashion and responded more to emotions rather than thinking things out.

The other psychologist testified that Wood had a narcissistic personality, which meant he was sensitive to any slight criticisms or rejections and tended to respond inappropriately with anger. Both psychologists said that Wood did not suffer from any form of mental illness, but only from a form of personality trait that drug and alcohol abuse often exacerbated. This case fell far short of those meeting the (G)(1) mitigating circumstance. The Court also considered whether Wood's impulsive personality merited any independent weight as nonstatutory mitigation. The Court gave it "little, if any" weight, noting that poor impulse control, standing alone, has little mitigating weight. See drugs/alcohol section.

State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)
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. The trial court found that the defendant had proven post-traumatic stress disorder and an antisocial personality disorder. The Court agreed with these conclusions without discussion. 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. See also drugs/alcohol section.

*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. Psychological evidence was not considered at Richmond's second sentencing because the Richmond I court concluded that only a mental disease or defect could be considered in mitigation, not personality or character disorders. But the law now requires that psychological disorders be at least considered, whether or not they rise to the level of the (G)(1) statutory mitigating circumstance. Moreover, 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) 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. Hinchey (Hinchey II), 181 Ariz. 307, 890 P.2d 602 (1995)
The defendant argued that the trial judge improperly considered the evidence of his personality disorder. But the defendant takes language of the special verdict out of context. Evidence of his personality disorder was offered to show that he might have been in a dissociative state during the murder. However, he bought a gun the day before the murder. The trial judge noted that this fact alone refuted his theory of being in a dissociative state during the murder. The trial court properly considered this evidence.

*State v. Barreras, 181 Ariz. 516, 892 P.2d 852 (1995)
Because the Court reversed the (F)(6) finding, and reduced the sentence to life, it was unnecessary to weigh the "significant mitigating evidence involving the defendant's organic brain damage and low I.Q." The Court did not discuss the specific evidence that was considered "significant."

State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995)
The defendant argued at the sentencing hearing that his repeated institutionalization as a youth should be considered in mitigation. The defendant did not explain this. The defendant has not proved that this should be a mitigating factor. The defendant argued that his mental health problems significantly impaired his capacity to conform his conduct to the requirements of the law. Dr. Balch testified that when he examined the defendant at age fifteen he was diagnosed as being seriously emotionally handicapped and having conduct disorder, unsocialized aggressive, with impulse control problems. The defendant's low verbal skills may have been suggestive of some possible organic impairment. Dr. Flynn testified that the defendant had a history of conduct disorder, unsocialized aggressive, and adjustment disorder with depression. A Department of Corrections evaluation showed no signs of depression or any signs of gross psychotic pathology. Dr. Flynn stated that the defendant did not have any signs of a mental defect, impaired intelligence, mental retardation or organic brain dysfunction.

The defendant has not proven that his capacity to conform his conduct to the requirements of the law was significantly impaired. He had the clear capacity for rational thought and showed no signs of any mental illness. The defendant has proved at most that at one time he suffered from a conduct disorder with impulse control problems. A conduct disorder is not sufficient to constitute a mitigating circumstance.

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 head injuries, mental disorders, and alcohol consumption. The Court first noted that "[h]ead injuries that lead to behavioral disorders may be considered a mitigating circumstance." Medical records established that Stokley suffered three head injuries since 1982. A neurologist testified that Stokley's "brain `integrity' was moderately to severely impaired . . . resulting in impulsive behavior." A clinical psychologist testified that Stokley "suffers from an inability to control impulse and this problem is exacerbated by alcohol." Although the Court gave some mitigating weight to the evidence, it was substantially offset by Stokley's above average intelligence (an I.Q. of 128) and the facts showing that he did not exhibit impulsive behavior in the commission of these murders. Further, his statements to police demonstrated that he appreciated the wrongfulness of his conduct.

Regarding Stokley's mental disorders, the Court noted that character or personality disorders alone are generally not sufficient to find that a defendant was significantly impaired. Stokley was previously admitted to a hospital for psychotic depression, with the final diagnosis that he suffered from passive-aggressive, antisocial, and borderline personality disorders. In competency proceedings for trial, a clinical psychologist found that Stokley was not suffering from any psychotic disorder, but had a history of depression and other serious psychological problems, including a pattern of impulsivity, and that he suffered from a borderline personality disorder. Stokley failed to show that his ability to control his actions was significantly impaired, but his documented mental disorders were entitled to "some weight" as nonstatutory mitigation. See also drugs/alcohol section.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Roger cited serious problems as a juvenile, hyperactivity, multiple head injuries, and an increased susceptibility to the effect of drugs and alcohol as proof that he was unable to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law. Although head injuries that lead to behavioral disorders may be considered a mitigating circumstance, in this case the foundational evidence regarding head injuries suggested "nothing more than the normal childhood injuries." The trial court's rejection of them as a basis for a (G)(1) finding was not improper. The Court further concluded that Roger's hyperactivity was proven by a preponderance of the evidence. Dr. Potts diagnosed defendant with attention deficit/hyperactivity disorder, and defense psychiatrists diagnosed him as having an antisocial personality disorder and traumatic stress disorder. Dr. Potts concluded that the defendant's life was directed "by what is quite probably an organic brain disorder." The psychological testing on defendant since he was 14 years old was consistent with brain damage. That damage manifests as hyperactivity, poor impulse control, a short fuse, violent rages and increased susceptibility to the effects of alcohol and other illicit drugs. But the state presented substantial evidence rebutting the defendant's impulsiveness. Despite the evidence of hyperactivity and antisocial personality disorder, this case "does not involve the same level of mental disease or psychological defects considered in other cases in which the (G)(1) mitigating circumstance was found to exist."

The Court also considered Roger's "mental health" as nonstatutory mitigation. Roger proved he suffers from hyperactivity and may suffer from other "mental disorders," although he failed to prove he suffers from brain damage. His "mental health" was entitled to some nonstatutory mitigating weight, but it was not sufficiently substantial to call for leniency.

State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995)
Expert testimony proved that the defendant appreciated the nature of his acts and could conform his conduct to the requirements of the law. Therefore, there was insufficient evidence to prove the (G)(1) statutory mitigating circumstance. The defendant did prove, however, that he suffered from behavioral disorders that may have affected his conduct when he committed the murder. This evidence was evaluated as a nonstatutory mitigating circumstance. The Court noted without discussion that the defendant's character or behavior disorders were supported by evidence in the record.

State v. Roscoe (Roscoe II), 184 Ariz. 484, 910 P.2d 635 (1996)
Roscoe argued that the trial court failed to give proper mitigating weight to his psychological history as documented in a report. The Court found no error in the trial court's weighing of the psychological report. The report concluded "the current test results do not document the presence of any neuropsychological condition which would appear to have any relevance in the current case." There was nothing in the report from which the trial court could have found substantial mitigation.

State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)
The defendant sought to prove by a sentencing memorandum that he failed to receive requested psychological counseling during previous periods of incarceration and that he suffered from a personality disorder making him perceive others as selfish, dishonest and opportunistic. Because the defendant did not offer any evidence or present any witnesses, the Court agreed with the trial court that he did not prove the existence of any mitigation.

State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
The trial court found that the defendant's conduct during and after the murders showed that the defendant understood the wrongfulness of his acts and attempted to avoid prosecution. The defendant lied to a witness to get that witness to leave the residence where the murders occurred. The defendant retrieved his belongings from a friend's house before leaving town. He abandoned Katherine Gumina's car and took a taxi to Las Vegas. The expert testimony about his drug use was based solely on the defendant's self reporting. The evidence of the defendant's drug use and related mental health problems was sufficient to support a nonstatutory mitigating circumstance, but not the (G)(1) statutory mitigating circumstance here.

The defendant presented some evidence of cyclothymia, a form of mental illness. However, he did not establish a causal connection between that alleged mental illness and his conduct on the night of the murders. The defendant did not prove any documented instances of his alleged illness. Head injuries that lead to behavioral disorders may be considered in mitigation. The defendant's stepfather testified that the defendant suffered from blackouts when he was 4 years old because of a calcium deficiency. The defendant sustained head injuries at ages 13 and 15 when he fell from roofs. The defendant was the victim of an assault while enlisted in the Marines. Dr. Potts testified that the defendant's head injuries might have caused the defendant to act more aggressively on the night of the murders. The defendant's head trauma was a mitigating circumstance but was not sufficiently substantial to call for leniency.

State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)
The only evidence suggesting that the defendant could not conform his conduct to legal requirements outside of evidence of intoxication was a psychiatrist's report based on a single two-hour interview. The expert primarily relied on what the defendant told him during that interview and did not perform any independent testing. The information provided by the defendant was contradicted by the defendant's conduct during the commission of these crimes and his testimony during trial. The defendant also claimed he had organic brain syndrome. This was also based on the same report noted above and was not proven by a preponderance of the evidence.

State v. Laird, 186 Ariz. 203, 920 P.2d 769 (1996)
The defendant suffers from serious personality disorders. Two psychologists testified that he showed features of antisocial, narcissistic, and borderline personality disorders. However, the evidence showed that he understood the significance of his actions. He planned the murder in advance, dumped the victim's body in the desert, concealed it with vegetation, washed the victim's blood off the truck, disposed of bloody clothing in two separate dumpsters, and made up a story about how he got the truck. These facts demonstrate that the defendant understood the wrongfulness of his actions. See drugs/alcohol section.

State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)
The defendant's low I.Q. and his classification as learning disabled in school did not affect his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. See also drugs/alcohol section.

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 impulsivity, 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. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
The trial judge found that the defendant's capacity to appreciate the wrongfulness of his conduct was not impaired at the time of the crime. The Court agreed with this assessment without any discussion.

State v. Thornton, 187 Ariz. 325, 929 P.2d 676 (1996)
The Court agreed with the trial court's finding that Thornton's antisocial personality disorder, resulting from his traumatic childhood, was a nonstatutory mitigating circumstance, but not sufficiently substantial to call for leniency. On appeal, Thornton argued that the trial court erred by not finding "mental illness" as a mitigating circumstance, both statutory and nonstatutory. Thornton had presented an insanity defense at trial and there was significant mental health testimony in the record. The Court found that Thornton failed to prove by a preponderance of the evidence that he was unable to either appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law.

Although there was substantial expert testimony concerning Thornton's mental health, most of it was in conflict. The state provided evidence that Thornton was malingering, and Thornton's experts dismissed those results and relied on the portions of the evaluations supporting Thornton's claims. The Court was unable to conclude "that the mental assessments provided by Thornton's experts are more accurate than the assessments made by the state's experts." As for nonstatutory mitigation, the Court noted that it had already recognized Thornton's antisocial personality disorder as a mitigating circumstance and did not find any additional evidence that would qualify as nonstatutory mental illness.

*State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)
The Court simply agreed with the trial court that this statutory mitigating circumstance was proven by a preponderance of the evidence. The trial court found that the defendant was impaired in his ability to conform his conduct to the requirements of the law, but did not find that his capacity to appreciate the wrongfulness of his conduct was similarly impaired. This was sufficient along with the other nonstatutory mitigation to call for leniency in the Manna murder, but not for the trailer park killings.

State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)
The trial court found that the defendant's ability to appreciate the wrongfulness of his conduct was not impaired to any significant degree by emotional disorders, substance abuse, situational stress, or any combination of the above. After reviewing the record, the Court concluded that the trial court's finding was proper. Notably, the forensic psychologist who testified for the defendant advised the court that the defendant did not suffer from an emotional disorder or any cognitive disorder affecting his ability to distinguish right from wrong or to conform his behavior to 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. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
Trostle established by a preponderance of the evidence that "he was affected in no small measure by an impaired ability to conform his conduct to the law's requirements." The defense psychologist's uncontroverted testimony was that Trostle's "criminal actions were directly influenced by his mentally disturbed condition." The trial court "should have given serious consideration to this evidence, either as statutory or nonstatutory mitigation."

Trostle was placed in a residential treatment and education program at the age of 14, as a result of his acting out in sexually inappropriate ways with other children. His abusive childhood, including physical abuse, neglect and sexual abuse, was well documented. Psychological evaluations at that time warned of escalating developmental problems. He was suffering from chronic mental illness, including a conduct disorder, severe polysubstance abuse disorder and mixed personality disorder with schizotypic, narcissistic, dependent and borderline features. He demonstrated extreme social dysfunction and an inability to function independently in the general community. His experience as a victim of sexual and physical abuse predisposed him to repeat such behaviors as he developed and his disturbance was considered serious and difficult to treat. The defense psychologist concluded that the long-term psychological damage to Trostle from his abuse included alienation from others. His longing for nurture and acceptance and his poor self-perception led him to be influenced by a drug using, asocial and antisocial peer group, and he was a follower and easily manipulated within that peer group. He responds impulsively and without reflection in stressful situations, and his criminal actions were directly influenced by his mentally disturbed condition. There was a strong indication that Trostle was "an individual who could not have been expected to conform to the expectations and demands of society to behave in a legal and responsible manner."

State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998)
The opinions of the defense experts were speculative regarding the defendant's organic brain damage. Dr. Walter performed no tests and made no independent evaluation of the defendant. He relied on the reports of others when he postulated that the defendant could have incurred brain damage in utero. Dr. Walter admitted that there was no factual basis for this theory. Dr. Walter also stated that any brain damage, if it existed, would likely have had an effect on the defendant's behavior. Dr. Walter further stated that it might not have had any effect. Dr. Blackwood conducted psychological tests that indicated to him the presence of brain damage. The results of a PETSCAN were negative, however. During cross-examination, Dr. Blackwood admitted that he found no causal connection between the suspected defect and the murder. The defense failed to establish that brain damage impaired the defendant's capacity to control his conduct. In fact, there was extensive testimony from a friend, coworker, and an employer that the defendant was a good worker, had a strong mechanical aptitude, and quickly grasped new tasks. There was insufficient evidence to prove that organic brain damage impaired the defendant's capacity as required by (G)(1).

The defendant maintained that his severe organic brain damage affected his capacity to appreciate the wrongfulness of his conduct or to conform it to the law. The testimony of the experts did not support this conclusion. Dr. Blackwood testified that his tests pointed to brain dysfunction, however, he found no causal connection between the defendant's possible brain damage and the murder. Dr. Walter also could not connect the brain damage to the murder. Dr. Tatro did not testify but prepared a report for the defense. In this report, he concluded that the defendant is a seriously disturbed individual as a consequence of organic brain damage. Dr. Tatro did not directly address whether the defendant's brain damage impaired his capacity to know right from wrong on the night of the murder. The state's expert testified that the medical records showed no evidence of brain damage, and that the defendant might not be fully cooperating. Dr. Youngjohn observed that the defendant's mechanical aptitude, nonverbal test performance and grip strength contradicted the alleged damage to his right spheral hemisphere. The Court agreed with the trial court that the defendant failed to establish mental impairment as a nonstatutory mitigating circumstance.

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. Smith "likely" had a personality disorder, but that did not cause significant impairment. Character or personality disorders alone are generally not sufficient to find that a defendant was significantly impaired. Smith did not prove he suffered any brain damage. Although he presented evidence of head injuries, tests showed he had normal neurological function and a normal I.Q.. The evidence that Smith attempted to cover up his actions demonstrated that he appreciated the wrongfulness of his conduct. Smith's ability to conform his conduct to the requirements of the law was evidenced by his lack of prior serious convictions. In addition, witnesses testified that Smith could control his temper and walk away from an altercation. Although the (G)(1) mitigating circumstance did not exist, the trial court properly considered the same evidence and found nonstatutory impaired mental capacity. Smith was impaired, "but not significantly so."

In addition, the trial court found that Smith proved by a preponderance of the evidence his behavioral and personality disorders and long-term effect of head injuries, which was a nonstatutory mitigating circumstance. The Court agreed with the trial court's findings and concluded that the mitigating circumstances, individually and collectively, were not sufficiently substantial to call for leniency.

State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
Drs. Gelardin and Berlin believed that the defendant suffered from mental illness, probably schizophrenia, during the time of the murder. Dr. LaWall thought that the defendant had a personality disorder. All three experts agreed that there was no evidence of the defendant's state of mind at the time of the crime. None could say if the defendant was psychotic when he killed the victim. None stated or implied a causal relationship between the defendant's mental health and the murder. While the record shows that codefendant Langston was a manipulative man who choreographed the crime and urged the defendant to kill the victim, no one, including the defendant, indicated that at the time of the murder the defendant was out of contact with reality. The Court clearly rejected the notion that having a mental illness necessarily means that a person is impaired for (G)(1) purposes. To say that a person with a mental illness is always significantly impaired in the ability to appreciate the wrongfulness of conduct or in their capacity to conform their conduct to the requirements of the law is supported by neither medical evidence nor common sense. In cases where the Court has found (G)(1), the mental illness was a major contributing cause of the defendant's conduct. The status of being mentally ill alone is insufficient to support a (G)(1) finding.

The fact that the defendant was able to appreciate the wrongfulness of his conduct was shown by his attempt to hide evidence of the murder, namely, wrapping the body in a sheet and dropping the body in a wash. The defendant told the victim he wanted to help her escape. This demonstrates that he knew what he was doing was wrong. The defendant has offered no evidence that his capacity to appreciate wrongfulness was in any way impaired when he committed the murder. Furthermore, the defendant has not shown that his capacity to conform his conduct to the requirements of the law was significantly impaired. The defendant implied that his mental illness caused a passivity and paranoia that allowed Langston to control him, and that he was therefore unable to resist Langston's pressure to rape and kill Webster. But there was no showing that he was passive or paranoid to any degree of impairment or that he lost control over his conduct in committing the murder. (G)(1) was not proven. The Court agreed with the resentencing court that the defendant has a passive personality and that he is impulsive and easily manipulated by others. These traits are to some extent rooted in his mental health. As such, this is afforded some nonstatutory mitigating weight. However, the defendant's active participation in the six-hour ordeal and the fact that he personally strangled and stabbed the victim renders negligible any mitigating effect this may have.

State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)
The defendant presented testimony from two psychologists that he suffered from a psychological condition called agitated delirium when he committed the murder. Dr. Streed testified that agitated delirium results when a person combines alcohol and methamphetamine that causes the sufferer to become hyperthermic, psychotic and then lethargic. In this condition, a person dissociates from reality. Neither psychologist could testify to any instance where a person in agitated delirium committed a sexual assault. The thoughtful destruction of evidence or concealment of the crime would contraindicate a diagnosis of agitated delirium.

There was testimony to support this diagnosis by one of the psychologists. The defendant was unconscious, sweaty and hot when the police entered the room. However, the trial court specifically found that the one psychologist who made this diagnosis lacked credibility. Furthermore, the defendant's blood alcohol was less than that for legal intoxication. A witness testified that the defendant did not appear intoxicated shortly before the murder. The defendant made efforts to conceal the murder by removing his bloody shorts, dressing, packing his suitcase, closing the bathroom door to conceal the victim's body, trying to hide the victim's eyeglasses and a pornographic magazine between the mattresses, and drawing the curtains to the room. This evidence indicates that the defendant's cognitive function was intact after the killing. The defendant reported to psychologists that an older brother sodomized him for many years, his stepfather was physically abusive and his natural parents were both alcoholics. This evidence cannot be given substantial weight when the evidence is only self-reported and uncorroborated. In addition, there was no causal connection between this traumatic childhood and the defendant's actions on the night of the murder. See also drugs/alcohol section.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
Dr. Bayless diagnosed the defendant as having an antisocial personality disorder based on his history as a juvenile offender. The defendant has demonstrated aggressiveness, violence and callous disregard for the rights, property and safety of others. The trial judge found that the defendant knew right from wrong, purposely hurt others, and eased his conscience with drugs and alcohol. The defendant has proven that he has an antisocial personality disorder but this has little or no mitigating value.

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 drugs/alcohol section.

State v. Martinez, 196 Ariz. 451, 999 P.2d 795 (2000)
The defendant maintained that his ability to conform his conduct to the requirements of the law was significantly impaired because of the physical abuse he suffered in childhood. Dr. Parrish diagnosed the defendant with post-traumatic stress disorder and a personality disorder, not otherwise specified. She concluded that the defendant was in a dissociative state when he shot Officer Martin. Dr. Bayless diagnosed the defendant with an antisocial personality disorder and disagreed that the defendant was in a dissociative state when the shot the victim. The defendant's actions in taking the murdered officer's gun, driving to California and using that gun to shoot the clerk in a convenience store demonstrate his "superior" intelligence and systematic thought processes. The defendant also tried to flee after leaving his gun with two others. The Court agreed with the trial court that the defendant did not suffer from post-traumatic stress disorder. Personality disorders are usually not sufficient to satisfy the (G)(1) statutory mitigator, and in this case, there was simply no causal connection between the personality disorder and his actions during the murder. The defendant may have had a personality disorder, but that did not influence his decision to shoot Officer Martin so that he would not have to go back to jail. The personality disorder does not warrant substantial weight in mitigation.

State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
An antisocial personality disorder may be a mitigating circumstance. The defendant was diagnosed with this disorder. However, there was no evidence to show that this disorder significantly impaired the defendant’s ability to understand the crimes. Character or personality disorders alone are not sufficient to constitute significant impairment. (G)(1) has not been proven by a preponderance.

State v. Poyson, 198 Ariz. 70, 7 P.3d 79 (2000)
Dr. Drake diagnosed the defendant with an antisocial personality disorder. However, there was no indication from the record that this disorder controlled his behavior or impaired him to the extent that leniency was required.

State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)
The Court concluded that mental impairment was not proven by a preponderance of the evidence because of conflicting testimony. The defense expert, Dr. Lanyon, diagnosed the defendant with "Bipolar II Disorder" yet the defendant had never suffered a major episode of depression, nor had he ever been diagnosed or treated for this disorder despite a significant record of incarceration in juvenile facilities. Dr. Bayless testified for the state that the defendant’s poor judgment and impulsivity could also be a product of the less severe antisocial personality disorder. The trial judge concluded that the defendant had a conduct disorder and not a mental illness. The Court agreed with this assessment and relied on the trial court’s credibility determination. "Our established (G)(1) jurisprudence requires, unequivocally, that the defendant be shown to suffer actual impairment due to mental illness." The Court emphasized that evidence of causation is required before mental impairment can be considered a significant mitigating factor. The Court did consider the defendant’s antisocial personality disorder as nonstatutory mitigation, but again concluded that there was no causal link shown between the impairment and the murder. There is a strong dissent discussing the majority’s "abdication" of responsibility to mental health practitioners in the area of a causal connection between a person’s mental health and abusive family background and the murder.

The defendant also argued that his emotional immaturity and impulsivity were nonstatutory mitigating circumstances. The Court agreed with the trial court that these nonstatutory mitigating factors were not proven because of the defendant’s average level of intelligence, his extensive prior criminal involvement, and his deliberateness and ability to delay gratification in relation to this crime.

State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
The defendant suffered from minor brain damage that resulted in impulsivity and poor judgment. But she failed to prove that she could not appreciate the wrongfulness of her conduct or that her ability to conform her conduct to the law was significantly impaired.

Nevertheless, the trial court correctly found the defendant’s brain damage was a non-statutory mitigating factor that had little weight.

State v. McGill, 213 Ariz. 147, 140 P.3d 930 (2006) Jury Trial/Indep. Review
Mental and psychological impairment were not established by an IQ of 92 and no identified mental disorder.

*State v. Roque, 213 Ariz. 193, 141 P.3d 368 (2006) Jury Trial/Indep. Review
The evidence showed that Roque’s mother was a schizophrenic, leaving Roque predisposed to mental health problems. All four mental health experts who testified at trial regarding Roque’s mental condition on the days after September 11, 2001, agreed that his mental condition impaired his capacity to conform to the law, but varied in their opinions of how significant that impairment was. The Court gave this mitigating evidence substantial weight. It also found that Roque’s low IQ of 80, although not low enough to be considered mental retardation, affected his ability to seek help or reason his way out of committing the crimes.

State v. (Joe Clarence) Smith, 215 Ariz. 221, 159 P.3d 531 (2007) (Ring)
Smith presented evidence that he suffered from sexual sadism with a form of anxiety disorder. However, the role of his mental health in the commission of the murders was accorded less weight due to testimony that he could have controlled his impulses and that he likely knew what he was doing and that it was wrong.

State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007) (Ring)
Impairment: Tucker failed to establish a causal connection between his narcissistic personality disorder and the crime, and did not show that his capacity to appreciate the wrongfulness of his conduct or to conform it to the law was significantly impaired at the time of the murders. Personality or character disorders typically do not satisfy the (G)(1) mitigator. The court gave little weight to Tucker’s disorder as a non-statutory mitigator.

State v. (Darrel) Pandeli (Pandeli IV), 215 Ariz. 514, 161 P.3d 557 ( 2007) (Ring)
The defendant presented evidence of his learning disabilities and neurological impairment. The court found that he failed to establish a nexus between his impairment and the crime, and failed to prove that he was impaired to such a degree as to interfere with his ability to know the difference between right and wrong or conform his conduct to the law. This mitigation was therefore accorded minimal weight.

State v. (Juan) Velazquez, 216 Ariz. 300, 166 P.3d 91 (2007) Jury Trial/Indep. Review
Mental impairment, personality disorder: considered only as a non-statutory mitigator because personality disorders usually are not sufficient to satisfy the (G)(1) mitigator.

*State v. Bocharski , 218 Ariz. 476, 189 P.3d 403, (2008)
Evidence of the defendant’s severe abuse emotionally, physically, and sexually as a child showed that the defendant’s ability to conform his conduct to the requirements of law was impaired, but it did not support a conclusion that he was significantly impaired and therefore the Court found the (G)(1) statutory mitigator not proven. The evidence was considered only as a non-statutory mitigator.

State v. Alvie Copeland Kiles, 222 Ariz. 25, 213 P.3d 174 (2009)
The Court found that the expert testimony did not show that Kiles established the statutory mitigator of diminished capacity but did prove that he suffered from some form of personality disorder, which is considered as non-statutory mitigation.

State v. (Ryan Wesley) Kuhs, 223 Ariz. 376, 224 P.3d 192 (2010)
Kuhs presented evidence that he suffered from ADHD or antisocial personality disorder.  However, his alleged mental disorder was only linked to the crime to the extent that it made him more impulsive.

State v. (Robert) Hernandez, 232 Ariz. 313, 305 P.3d 378 (2013) 
Defendant’s mitigation evidence consisted of: expert testimony of “traumatic brain injury” rendering him less able to control impulses, which was rebutted by the State’s expert.  His allocution addressed his difficult childhood, the family’s limited financial resources, alcohol, and childhood abuse; this evidence could have been somewhat offset by his age (32) at the time of the murders.

State v. (Trent Christopher) Benson 232 Ariz. 452, 307 P.3d 19 (2013)
Defendant’s mitigation evidence included one statutory factor, (G)(1), “defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was significantly impaired, but not so as to constitute a defense to prosecution.”

State v. (Christopher Mathew) Payne, 2013 WL 6252412 (November 21, 2013)
The trial court properly precluded expert testimony relating to defendant’s inability to conform his conduct to the law due to “executive functioning deficiencies,” from a witness whose identity was disclosed to the State two days before the penalty phase began; the State had learned of her report two weeks earlier..  Defendant made no offer of proof as to the import of the expert’s testimony, but the Court determined that the report identified a relatively-normal functioning defendant while the disclosure constituted a substantial surprise to the State, which had no opportunity to interview the expert. The sanction was proportional to the violation and had minimal impact on the evidence, considering the importance of the witness and evidence, the surprise, and bad faith.

State v. (Efren) Medina, 232 Ariz. 391, 306 P.3d 48 (2013)
Mental illness evidence was presented:  that defendant suffered from ASPD and delusional disorder, persecutory type. Neither was afforded no weight as statutory mitigation absent evidence that he was unable to conform his conduct to the law or did not appreciate the wrongfulness of his conduct.  As non-statutory mitigators, both the personality and delusional disorders were considered, and afforded some weight.

CONTINUE TO DRUGS / ALCOHOL IMPAIRMENT