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Arizona Judicial Branch

FAMILY TIES

FAMILY TIES

[This category contains cases where the defendant argues that his current love of family and his family members' love for him is mitigating. It also contains arguments regarding the adverse effect the defendant's execution would have on a family member. One case argues the concern of friends, see State v. Michael Apelt, and in another case the defendant argued that the domestic nature of the murder ought to be mitigating. See State v. Kiles. For discussions of the impact of the defendant's family background and childhood on the defendant, see difficult childhood/family history section.]

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
The Court made no real determination regarding this evidence, but recounted what the trial court did and upheld the sentence. The defendant's family was supportive of him and would suffer considerable grief if he were to receive the death penalty.

State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
The Court considered in mitigation Smith's favorable adjustment to new marital and parental responsibility in the months preceding his arrest. After considering all the mitigation presented by Smith, 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. Fisher (Fisher I), 141 Ariz. 227, 686 P.2d 750 (1984)
This mitigation was mentioned by the Court, but not discussed. The defendant put forth evidence of the adverse impact of the death penalty on his family as mitigation to the sentencing judge. The trial court did not address this evidence in its special verdict. The trial court addressed the statutory mitigation, but then simply found that there was no mitigation sufficiently substantial to call for leniency. The Court noted that this did not mean that the evidence was not considered and found no violation of Watson by the sentencing judge. The Court stated that the trial court was not obligated under the statute to state its findings with respect to the nonstatutory mitigation.

State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984)
Chaney's family background was not mitigating. He had spent much of his life from his late teens in and out of jail and he did not have much contact with his family. He was already married to another when he "married" the woman who participated in these crimes with him. He often choked and struck her and asked her if she liked it. When she replied that she did not, he would attack her again and ask her why she forced him to hit her.

State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)
The defendant was the father of a small child. This was offered as evidence to be considered in mitigation. The trial court did not find this to be mitigating. The trial court noted that the birth was out of wedlock and there did not appear to be any "family tie." The Court agreed with this analysis and conclusion.

State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)
The Court determined that this was proven, but was not of substantial weight. The love between the defendant and his family had not stopped him from what amounts to a lifetime of crime.

State v. Patrick Poland (Patrick Poland II), 144 Ariz. 388, 698 P.2d 183 (1985)
The trial court found the defendant's close family ties as a mitigating circumstance, but not sufficiently substantial to call for leniency. On appeal, the defendant argued that the trial court had improperly used this mitigating factor as an aggravating factor. He pointed to the court's discussion of how the defendant had actually destroyed his family by his actions. The Court concluded that the trial court did not improperly use the defendant's close family ties as an aggravating factor.

State v. Michael Poland (Michael Poland II), 144 Ariz. 412, 698 P.2d 207 (1985)
The trial court found that close family ties existed, but given the nature of the murders, found that the defendant by his actions had actually destroyed his family. The Court agreed that the close family tie was a mitigating factor, but was not sufficient to overcome the aggravating factor.

State v. Roscoe (Roscoe I), 145 Ariz. 212, 700 P.2d 1312 (1984)
Without further discussion, the Court found that the defendant's age and relationship with family were not sufficient mitigating circumstances to outweigh the cruel, heinous and depraved nature of the crime.

State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)
Defendant Washington argued that prior to the murder he was a single parent raising a young son. Viewed in the overall context of this case, the Court concluded that this was not such a mitigating circumstance as to require vacating the death sentence imposed on him.

State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)
The defendant argued to the trial court that he has a strong relationship with his family. The trial court concluded that the defendant had pursued a life of crime for 20 years and that mitigation was not warranted. The Court agreed with this conclusion.

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
The defendant's parents did go to great lengths to support him during his trial. However, the trial court reasonably concluded that this support did not constitute a mitigating circumstance sufficiently substantial to call for leniency. Although it may be true that the defendant showed concern for his parents during his incarceration and trial, the record did not show a similar concern at any other time since he was 13 years old. On many prior occasions the defendant rejected his parents' offers of help. The trial court reasonably concluded that even if this concern were sincere, it was not a mitigating circumstance sufficiently substantial to call for leniency.

State v. Kiles, 175 Ariz. 358, 857 P.2d 1212 (1993)
The Court did not find that this constituted a nonstatutory mitigating circumstance. The defendant argued that his sentence should be reduced because of the domestic nature of this murder. The Court disagreed. "We can think of no rational reason why a defendant should be granted leniency simply because he kills a loved one rather than a stranger."

State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993)
The defendant argued that the trial court improperly rejected his substantial family support as a mitigating circumstance. The Court found that while the defendant's support and love for and by family and friends might have some mitigating force, it did not require a finding of mitigation sufficient to call for leniency.

State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
Two of the victim's friends requested in the presentence report that the defendant not be put to death. The Court agreed with the trial court that the defendant had not proven any mitigating factors sufficient to call for leniency or even why some factors should be considered mitigating at all without any further discussion.

State v. West, 176 Ariz. 432, 862 P.2d 192 (1993)
The defendant argued that he enjoyed the support of his family and that he had a child in mitigation. When he was not in prison, the defendant's contact with his family and child was minimal. The Court did not find that this "family support," to the extent it even existed, was mitigating.

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
The trial court found the defendant's loving relationship with his mother to be a mitigating circumstance, but not a substantial one. The Court agreed with this analysis without discussion.

State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
The defendant argued his love of family 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. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
The Court adopted the findings of the trial court that the defendant failed to prove this nonstatutory mitigating circumstance. The defendant argued in mitigation that he was married and had a young son, and that his execution would have a detrimental impact on the emotional well being of his son.

State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)
The trial court found that the defendant had proven that he had a family that loves him. The Court agreed with this conclusion without discussion.

State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994)
The defendant argued that his current family support is a mitigating circumstance. The Court noted that while family support can be a mitigating circumstance, it did not require a finding of mitigation sufficient to call for leniency.

State v. Aryon Williams, 183 Ariz.368, 904 P.2d 437 (1995)
The defendant had a strong relationship with his family. He was a contributing member of his family and had close ties with his parents, brothers and sons. This was a mitigating circumstance. His parents considered the victim the daughter they never had. The victim had lived with them for over two years at one point. These family relationships did not keep the defendant from murdering his son's mother and someone who was in many ways a member of his family. The Court gave this mitigating circumstance little weight.

State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995)
The Court agreed with the trial court that the defendant proved that he had a supportive family, but that this was not relevant mitigating evidence. The defendant's mother and sisters testified on his behalf. His mother stated that she was concerned about his mental health prior to the murder. Despite this positive influence, he committed this horrible crime. In this case, this evidence did not translate into a mitigating circumstance for the defendant. This evidence was not relevant to whether the defendant should receive the death penalty.

State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)
The defendant joined the military to get away from his father. He maintained that he and his mother were close, yet he would go months without contacting her. The defendant had differences with one of his brothers and a sister, and he was twice divorced. He had not seen his daughter for ten years. The defendant failed to prove that he is a good family man or that he is concerned for his parents. Although the defendant may have proven that his mother loves him, the Court concluded that in this case the concern of third parties did not translate into a mitigating circumstance and was not relevant as to whether he should receive the death penalty.

State v. Roscoe (Roscoe II), 184 Ariz. 484, 910 P.2d 635 (1996)
The Court noted, without further discussion, that the trial court found Roscoe's love of family as a mitigating circumstance.

State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)
The defendant sought to prove his good family background and his mother's dependency on him by a sentencing memorandum. Because he 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. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)
The Court found this mitigation insufficient to warrant leniency. The Court simply noted the fact that the defendant's mother died, he was separated from his wife and child, he lost his job, and used alcohol and drugs as a nonstatutory mitigating circumstance without discussion. The Court noted that the state did not contest this finding and the Court accepted it as given.

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 family support, 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 had a loving and caring mother and now has a supportive family. This was not sufficient to call for leniency. The Court agreed with this assessment without discussion.

State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
It is not mitigation that the seventeen-year-old defendant had a pregnant girlfriend and often ate dinners with his family.

State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997)
The defendant argued in mitigation his relationship with his children and the effect his execution would have on them. He indicated that he loves them and has tried to be a good father. The oldest daughter testified regarding the defendant's good character as a parent. The youngest daughter sent a letter to the judge. The Court did not discuss this proffered mitigation except to conclude that it was not sufficiently substantial to call for leniency.

State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)
The trial court found that the defendant's family cared about him, and that he had a young son. The Court agreed with the trial court that this evidence was insufficient to warrant leniency.

*State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
The trial court found that Trostle established that he had loving family relationships, but that it was irrelevant in mitigation. Evidence of familial relationships might have some mitigating force. The trial court should have given this circumstance some weight.

State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998)
The Court noted without discussion that the fact the defendant had loving relationships with some family members was not sufficiently substantial to call for leniency.

State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998)
Greene presented evidence that he had been married for approximately five years and he fathered two children. The Court noted that it has found mitigation where a defendant was an adequate family member, but refused to find mitigation where a defendant had maintained minimal contact with his child. Here, Greene's parental rights to his children were severed and his financial support for his children was minimal to nonexistent. Thus, he did not have a good marriage or healthy family life and the Court rejected this claim of mitigation. Greene's ex-wife testified that she was concerned about the effect Greene's execution would have on her children. The Court gave "some mitigating weight" to the effect Greene's execution would have on the emotional well being of his children. The Court concluded, however, that the mitigation in this case, individually and collectively, was not sufficiently substantial to warrant leniency.

State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
The trial court found that Smith proved by a preponderance of the evidence his love for his son, which was a mitigating circumstance. The Court agreed with the trial court's findings and concluded that the mitigating circumstances in this case, individually and collectively, were not sufficiently substantial to call for leniency.

State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999)
The defendant refused to present mitigation evidence, stating that he understood his right to present mitigation evidence, voluntarily waived his right to do so, and specifically instructed his counsel not to do so. Likewise, he instructed his family not to cooperate with his counsel's efforts to investigate his background. Despite the defendant's refusal to cooperate in presenting mitigation, defense counsel advised the trial judge that the defendant planned a reconciliation with his wife and child. This sole mitigating circumstance offered by defense counsel did not outweigh the aggravating circumstances of cruelty and a prior serious offense.

State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999)
The trial court found the defendant's importance in the life of one of his children to be a mitigating circumstance. The Court did not discuss this factor except to report that the trial court found it.

State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
The defendant presented affidavits from his mother and sister indicating their love and support for him. The trial court found that while his mother and sister love him, this did not mitigate these crimes. While on parole in his mother’s custody, the defendant continued to commit crimes. This evidence is only slightly mitigating. Furthermore, the trial court found that the defendant was devoted to his family. In light of his violent behavior, however, this did not provide any additional mitigation beyond what had already been accorded to his family support.

State v. Poyson
, 198 Ariz. 70, 7 P.3d 79 (2000)
Two family members testified at the sentencing hearing, and others wrote letters or cooperated with the mitigation specialist. This was given minimal weight by the Court.

State v. Harrod
, 200 Ariz. 309, 26 P.3d 492 (2001)
The defendant’s family issues, including mutual love and support, were a mitigating factor entitled to minimal weight.

State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
The defendant’s family’s love of and support for him was a mitigating factor, but did not warrant leniency.

State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002)
Although the defendant proved he is loved and supported by his family, and that he loves them, that love did not prevent him from committing murder. Family support alone is insufficient to overcome aggravation, and did not warrant leniency here.

State v. Carlson
, 202 Ariz. 570, 48 P.3d 1180 (2002)
The defendant argued she was motivated to kill her mother-in-law because she wanted to use the money her husband would receive from the victim’s trust and annuities to obtain custody of her children. The Court assumed without deciding that this could have some mitigating weight. But because the defendant presented no proof she orchestrated the murder to gain custody of her children, her claim carried no weight.

State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
Love of his family was “de minimus” compared to the murders and the six proven aggravators.

State v. McGill, 213 Ariz. 147, 140 P.3d 930 (2006) Jury Trial/Indep. Review
Impact that defendant’s execution would have on his family established family ties as a mitigating factor.

State v. (Joe Clarence) Smith, 215 Ariz. 221, 159 P.3d 531 (2007)
Smith’s close ties with family members while in prison was accorded less weight based on conflicting testimony regarding its presence or substantiality.

State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007)
The defendant presented evidence of his good relationships with his family and friends, and good conduct in school. The state countered with evidence that he got into fights during elementary school and once injured another student with a pencil sharpener. The court found this mitigation of minimal significance in light of the conflicting testimony.

State v. Harrod ("Harrod III"), 218 Ariz. 268, 183 P.3d. 519 (2008)
The Defendant claimed as mitigation the impact of execution on his family and friends and love for and of family.  “This Court, however, gives minimal weight to family support.” ¶59.

State v. (Shad Daniel) Armstrong (Armstrong III), 218 Ariz. 451, 189 P.3d 378 (2008) Ring
The defendant’s mother testified that a death sentence would have a negative impact on his young children. The Court stated this was a mitigating circumstance, but gave it little weight.

*State v. Bocharski, 218 Ariz. 476, 189 P.3d 403 (2008)
The defendant’s sister testified that she wants to establish a relationship with him and is corresponding with him. His children also expressed love for their father. The Court found this mitigating circumstance was proven.

State v. (Julius Jarreau) Moore, 222 Ariz. 1, 213 P.3d 150 (2009)
Moore established the mitigating factor that his family loved him and would be negatively impacted by his execution.  The court gave this factor minimal weight.

State v. (Paul Bradley) Speer, 221 Ariz. 409, 212 P.3d 787 (2009)
The Court found that Speer established that his execution would have a very negative effect on his extended family.

State v. (Fabio Evelio) Gomez, 2012 WL 6061679, 293 P.3d 495 (Ariz., 2012)
“A defendant's relationship with his or her family and friends may be a mitigating circumstance, yet the Court has often found that this circumstance should be given little weight.” State v. Tucker, 215 Ariz. 298, 322 ¶ 116, 160 P.3d 177, 201 (2007).

At the mitigation phase, Gomez presented testimony from family members and others who knew him in the Dominican Republic and established that he had a good upbringing and was treated well by his parents while growing up. The State disputed Gomez's alleged mitigating factors, contending that his family members and friends from the Dominican Republic had no significant contact with Gomez in the more than ten years between his move to the United States and the victim's murder.

Gomez kidnapped and sexually assaulted the victim and brutally bludgeoned her to death. The record does not reflect significant mitigating circumstances. The Court concluded that “the mitigation is not sufficiently substantial to warrant leniency.” A.R.S. § 13–755(B).



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