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LACK OF CRIMINAL HISTORY

LACK OF CRIMINAL HISTORY

[This category consists of cases where the defendant argued that his lack of a criminal record, or the lack of a criminal record of some type, such as violent felonies, was mitigating. Prior arrests, juvenile records and other prior bad acts have been considered in rebuttal of this evidence. This category does not contain cases where the defendant argued his good character, his current good behavior as a model prisoner, his ability to be rehabilitated, or his family background. See good character, model prisoner, rehabilitation, and difficult childhood/family history sections.]

State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980)
The Court noted, without further discussion, that the defendant argued his lack of an adult criminal record was 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. Bishop (Bishop II), 127 Ariz. 531, 622 P.2d 478 (1981)
The state conceded that the defendant had no prior criminal record.

State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
The Court noted, without further discussion, that the trial judge found Tison's minimal prior criminal activity to be a mitigating circumstance. The Court found the mitigating circumstances were not sufficiently substantial to call for leniency.

State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
The trial court found the defendant's minimal prior criminal activity to be a mitigating factor. The Court mentioned this but did not discuss it further. The mitigating circumstances separately and together were not sufficiently substantial to call for leniency.

State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1982)
The defendant's lack of a prior criminal record might ordinarily constitute a mitigating circumstance. The trial court concluded in this case that it was not a mitigating circumstance because the court learned from the trial and the testimony of the defendant's wife that he was "an adulterer, a violent wife beater, and a liar." The defendant argued on appeal that the trial court erred in not finding the mitigating circumstances proffered by the defendant. The Court concluded, "whatever mitigation evidence appellant offered, it was not sufficiently substantial to call for leniency."

*State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983)
The defendant had a history of juvenile offenses, but no other convictions as an adult. The Court found this to be a mitigating circumstance.

State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983)
As mitigation, the defendant presented evidence of his lack of a record of prior violent crime. It is unclear what the Court's determination regarding this proffered mitigation was as it recounted what was presented to the trial court and then simply agreed with the result.

State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
After considering all the mitigation presented, including Smith's lack of a prior serious crime, 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)
The defendant put forth evidence of his lack of a prior criminal record 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. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990)
The Court listed several mitigating circumstances, including the defendant's lack of prior felony convictions, which the trial court considered but found insufficient to call for leniency. Without further discussion, the Court noted that these claims have been held insufficient to merit leniency in other cases.

*State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)
The defendant proffered his timely parole in Texas as a mitigating factor. The Court noted this, but did not discuss it.

State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991)
The trial court found that the defendant had a minimal prior criminal history. The trial court concluded that this was insufficient to require leniency and the Court agreed with that assessment.

State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991)
The defendant contended that the trial court improperly discounted the mitigating circumstance of lack of a prior criminal or felony record by considering his two prior arrests involving domestic violence situations. The Court disagreed, noting that any relevant evidence may be used to rebut the defendant's mitigation, regardless of its admissibility at trial. The defendant's prior arrests for domestic violence, even though they did not result in convictions, were relevant and may be considered to rebut the defendant's proffered mitigating circumstance that he had no prior criminal record. The trial court did not err when it considered the prior arrests in evaluating the weight to give to the defendant's lack of prior felony convictions. The cumulative weight of the mitigating circumstances in this case was not sufficiently substantial to call for leniency.

State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991)
The defendant offered in mitigation his lack of a prior felony record. The lack of a prior criminal record is a mitigating circumstance, but not sufficient by itself to warrant leniency. The defendant proffered in mitigation his lack of a prior record of abuse or violent behavior as well. The Court noted this, but did not discuss it. The Court concluded that this was insufficient to warrant leniency.

State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)
At sentencing, Cook asked the trial court to consider the fact that he had never before been charged or convicted of a felony or violent crime. The trial court found that given Cook's extensive history of misdemeanors, his lack of prior felonies or violent crimes was not a circumstance to be weighed in mitigation. Without further discussion of this issue, the Court concluded that there were no mitigating factors warranting leniency in this case.

State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992)
The Court briefly mentioned that the defendant's lack of a prior record was a pertinent factor in sentencing. However, here, like the rest of the evidence offered in mitigation, it did not outweigh the aggravating evidence.

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
The defendant argues that his two prior felonies were for nonviolent crimes and that this constitutes a mitigating circumstance. The defendant improperly characterizes his two prior felony convictions as nonviolent. The Court recognized that for aggravating circumstances a court could not look at the facts underlying a prior conviction. Since the defendant asserted that his prior convictions were nonviolent, the Court did look at the underlying facts of those convictions. The kidnapping conviction consisted of grabbing the eight-year-old victim, forcing the boy on a motorcycle, forcing the boy to fellate him, leaving scratches on the boy's neck and threatening him. The argument that this conviction was without violence is meritless. There were no facts in the record concerning the other lewd and lascivious conduct conviction.

*State v. Mickel Herrera, 174 Ariz. 387, 850 P.2d 100 (1993)
The defendant argued that the trial court failed to consider evidence establishing that he had no prior criminal record. The Court disagreed, noting that although the trial judge did not specifically enumerate the defendant's criminal record, the judge stated that he had considered each of the mitigating circumstances raised by the defendant. The defendant had no prior felony convictions but he did have a prior juvenile DUI misdemeanor conviction. The Court agreed that the defendant's lack of a prior felony conviction was not a mitigating circumstance sufficiently substantial to call for leniency.

State v. Schurz, 176 Ariz. 46, 859 P.2d 156 (1993)
The trial court found that the defendant proved a history of contacts with the criminal justice system, some of which resulted in incarceration as a juvenile and as an adult. 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, developed a volatile and violent personality extremely maladapted to living in society. This was as much an argument for the death penalty as against it. This mitigation was not entitled to enough weight to call for leniency.

State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
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. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)
The defendant had no prior convictions for either misdemeanors or felonies. The Court found this to be relevant mitigating evidence. After considering all the mitigation proffered by the defendant, the Court found it was not sufficiently substantial to warrant leniency.

State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)
Without any discussion, the Court agreed with the trial court that the defendant's lack of a prior record was mitigating, but not sufficiently substantial to call for leniency.

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
The defendant argued that his lack of prior felony convictions was a mitigating circumstance. The trial court concluded that this mitigating circumstance did not exist. The Court clarified that the lack of prior felony convictions does constitute a mitigating circumstance. Where lack of prior felony convictions is advanced as a mitigating factor, arrests or misdemeanor convictions should also be considered. Here, the defendant did not have any prior felony convictions. He did, however, have three misdemeanor charges on his record, an arrest for assault, a misdemeanor conviction for public indecency, and four arrests for driving under the influence.

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)
The trial court correctly noted Wood's lack of prior felony convictions as a nonstatutory mitigating factor. This carried little weight because Wood previously pleaded guilty in Nevada to two counts of assault with a deadly weapon, classified there as "gross misdemeanors." He was originally charged with felonies in Nevada and the seriousness of that conduct compelled the Court to discount this mitigating circumstance.

State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994)
The defendant argued that he was not previously convicted of a crime of violence. His record does include convictions for first degree burglary and aggravated escape. Although a previous conviction for a serious offense is an aggravating factor, the absence of such convictions is not necessarily a mitigating factor. This mitigation was not sufficiently substantial to call for leniency.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Although Stokley had no prior felony convictions, he did not have a law abiding past. He had a history of misdemeanor arrests and offenses, including a conviction for disorderly conduct, two arrests for public drunkenness, and arrests for assaults on two former wives. The Court concluded that the 38-year-old Stokley's lack of a felony record was a nonstatutory mitigating circumstance, but the weight to be given it was substantially reduced by his past problems with the law.

State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)
The defendant had no prior criminal convictions prior to murdering the victim. This was a relevant mitigating circumstance.

State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)
The defendant had only one misdemeanor conviction for possession of a prohibited weapon, no felony convictions and an unresolved arrest for shoplifting. This lack of any significant prior criminal record was a mitigating factor.

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 lack of prior felony convictions. Roscoe's prior assault on a young girl had been reduced by a plea bargain from a felony to a misdemeanor. Although not classified as a felony, this prior assault was violent. The Court found no error in the trial court's refusal to give mitigating weight to Roscoe's lack of a prior felony conviction, given the nature of the prior plea-bargained misdemeanor and its similarity to the crime in this case.

State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d 1056 (1996)
Gallegos argued that his prior criminal record was a nonstatutory mitigating circumstance. He was 18 years old at the time he committed the murder so his lack of an adult record was not impressive. His juvenile record contained a weapons offense, possession of marijuana, felony theft, and a probation violation. He successfully completed one 6-month probationary term. But he violated the terms of a second one-year probationary period by testing positive for methamphetamine and marijuana use. He was excessively truant in school the year of the murder and was suspended for 21 days. The Court found that Gallegos' prior record was not a mitigating circumstance in this case.

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)
The Court agreed with the trial court that Miller's lack of a felony record was not mitigating. Although Miller had no felony convictions, he had a substantial criminal history.

State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
The defendant had no prior felony convictions. Given his age, he would not have had any felony convictions unless he had been transferred previously to adult court. The defendant did have a history of misdemeanor arrests in juvenile court. The Court finds no mitigation in the fact that the defendant had no prior felony convictions.

State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)
The Court agreed that the defendant had proven his lack of a serious prior record. This, along with the other evidence offered in mitigation, was sufficient to call for leniency in the Manna murder, but not for the trailer park killings.

State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997)
The defendant claims that his conviction for possession of a weapon by a convicted felon and an arrest for aggravated assault are insufficient to rebut the mitigating factor of a nonviolent history. This argument carries little weight considering the turn the defendant's life took with his major participation in drug dealing.

State v. Chad Lee (Reynolds, Lacey murders), 189 Ariz. 590, 944 P.2d 1204 (1997)
The Court agreed with the trial court that the defendant's lack of any significant prior criminal history was a mitigating circumstance without any discussion. The Court further found that this was not sufficiently substantial to call for leniency.

State v. Chad Lee (Drury murder), 189 Ariz. 608, 944 P.2d 1222 (1997)
The Court found that this was proven by a preponderance of the evidence without discussion. This, along with the other evidence offered in mitigation, was insufficient to call for leniency.

State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)
The Court found that the record supported the sentencing judge's findings that the defendant had no prior record of acts of violence, no previous felony convictions, and that the defendant is capable of rehabilitation. It appears that the Court considered these to be mitigating circumstances, but insufficient to call for leniency.

*State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
Trostle argued that the trial court erred by not considering as nonstatutory mitigation his lack of a prior violent felony conviction. The record contained evidence supporting this factor and it was found to be relevant in mitigation. Nothing in Trostle's criminal record revealed a tendency toward the kind of violent crime for which he was convicted in this case. He had one previous adult felony conviction for car theft (nondangerous), which occurred just two weeks before this murder, and his juvenile record consisted mainly of sexual "acting out" episodes.

State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998)
Although Greene had no prior felony convictions, he had a prior conviction for theft. The Court agreed with the trial court that Greene's lack of a felony conviction was a mitigating circumstance, but was entitled to little weight.

State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998)
The lack of prior felony convictions can be a nonstatutory mitigator, but misdemeanors and arrests may be considered in assessing this factor. The defendant had one prior felony theft conviction and numerous misdemeanors including thefts, DUIs, criminal damage, assault, and disorderly intoxication. The trial court correctly gave this mitigating circumstance no mitigating weight.

State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)
The defendant had no prior felony convictions prior to the murder. He did, however, have eight misdemeanor convictions. Given this long criminal history, the lack of prior felony convictions did not deserve much weight in mitigation.

State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
The trial court found that Smith's lack of prior felony or serious criminal history was a mitigating circumstance. Smith had one misdemeanor DUI conviction. 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. White (White II), 194 Ariz. 344, 982 P.2d 819 (1999)
The defendant asked the trial court to find the murder to be aberrant behavior by the defendant and pointed to his lack of a prior felony record or any record of violent behavior. The absence of such a record may be mitigating. The trial judge in both sentencings, however, considered that. The Ninth Circuit created the aberrant behavior concept as an exception to the federal sentencing guidelines. The doctrine has been applied in cases that would result in a fundamentally unfair sentence, but not in a capital case. Even if this were to be considered a mitigator, the defendant's behavior in this case would not qualify as aberrant behavior. Looking to the federal cases, the lack of a criminal record is not synonymous with aberrant behavior. See also good character section, and aberrant behavior in the miscellaneous section.

State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001)
The defendant proved he had only one self-reported misdemeanor conviction from years before the offense. This was mitigating evidence, but its weight was not sufficiently substantial to call for leniency.

State v. Ring, 200 Ariz. 1139, 25 P.3d 717 (2001)
The Court agreed with the trial court that this circumstance existed but was insufficient to call for leniency. The Court noted that the defendant had no prior felony convictions, but did have two prior misdemeanor convictions for carrying a concealed weapon and for impersonating a public servant.

State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
The defendant had no prior criminal convictions. Her absence of criminal history was a non-statutory mitigator.

State v. Murdaugh, 209 Ariz 19, 97 P.3d 844 (2004) (Ring)
Murdaugh kidnapped and bludgeoned a stranger to death because he propositioned Murdaugh’s girlfriend. After murdering the victim, Murdaugh cut up the body, extracted the teeth, cut off the victim’s finger pads, and buried them all separately.  He also sanitized and disposed of the victim’s van, and buried and destroyed other personal property owned by the victim.  The court found that while Murdaugh had no prior criminal history, this had very little weight “in light of the nature and strength of the aggravating factors [F(1) & F(6)].”

State v. (Richard J.) Glassel, 211 Ariz. 33, 116 P.3d 1193 (2005) Jury Trial/Indep. Review
The court found Glassel’s lack of a criminal history at age of 61, the age at which he committed the murders, was a non-statutory mitigating circumstance.  However, the court found that this circumstance along with the other mitigation, was insufficiently substantial to call for leniency given that Glassel killed 2 and wounded three others in a planned shooting spree.

State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
Absence of genuine violence in Ellison’s prior convictions was considered only slight mitigation by the Court.

State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007)
Although the defendant’s lack of a prior criminal record was compelling mitigation, the court found it was not sufficiently substantial to warrant leniency in light of the three aggravators remaining for Victim 1 and the two aggravators for Victims 2 and 3.

State v. (Fabio Evelio) Gomez, 2012 WL 6061679, 293 P.3d 495 (Ariz., 2012)
A defendant's lack of a prior felony conviction “is a mitigating circumstance, but entitled to little weight.” State v. Greene, 192 Ariz. 431, 442 ¶ 52, 967 P.2d 106, 117 (1998). Gomez kidnapped and sexually assaulted the victim and brutally bludgeoned her to death. The record does not reflect significant mitigating circumstances.


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