Capital Sentencing Guide

MODEL PRISONER

MODEL PRISONER/GOOD CONDUCT WHILE INCARCERATED AND/OR IN COURT

Model Prisoner:  This category consists of cases in which the defendant argued that he behaved well or did good things while incarcerated or at trial.  There are several sub-categories:  (1) Evidence that the defendant had few if any disciplinary write-ups and/or aided in thwarting criminal activities from other inmates, and/or behaved well during the trial;  (2) Evidence that the defendant improved his education and helped other become educated;  (3) Evidence that the defendant developed spirituality; and (4) Evidence that the defendant has shown personal growth/adopted new, positive goals.  The cases in this section are subdivided into these four sub-headings for ease of reference. 

Note that this section does not deal with conduct occurring before the defendant’s arrest.  For cases involving the defendant’s alleged good character before his incarceration, see the Good Character and Criminal History sections. 

Special Note on a Defendant’s Conduct During Trial:  This subcategory contains conflicting case law.  The overwhelming majority of cases state rather emphatically that “good conduct during trial” is not a mitigating circumstance, since it is in the defendant’s best interests to behave well and cooperate. State v. Trostle, 191 Ariz. 4, 22, 951 P.2d 869, 887 (1997); State v. (Michael) Apelt, 176 Ariz. 349, 368, 861 P.2d 634, 653 (1993); and see State v. Spencer, 176 Ariz. 36, 44, 859 P.2d 146, 154 (1993) (defendant’s good behavior at trial says nothing about his character, tendencies, or rehabilitative potential and is not a mitigating circumstance since it is not relevant to determining whether to impose a sentence less than death), cert. denied, 510 U.S. 1050 (1994); State v. Atwood, 171 Ariz. 576, 651-52, 832 P.2d 593, 668-69 (1992) (respectful, proper and controlled trial demeanor is expected in front of jury or judge and is not a mitigating circumstance, but is a “self-serving attitude”, cert. denied, 506 U.S. 1084 (1993); State v. Lavers, 168 Ariz. 376, 395-96, 814 P.2d 333, 352-53 (1991) (while good conduct while incarcerated was considered in mitigation, good conduct during trial was not), cert. denied, 502 U.S. 926 (1991).

However, in State v. Spears, 184 Ariz. 277, 294, 908 P.2d 1062, 1079 (1996), the court did give this factor some weight.  The court stated that, although “good conduct in the presence of the judge or jury is not necessarily a mitigating circumstance” (citing to Atwood), because the trial judge had found in mitigation that the defendant was “respectful and cooperative in court” and had no disciplinary write-ups in jail, these factors were “entitled to minimal mitigating weight.”  Later, in State v. (Robert) Jones, 197 Ariz. 290, 313-14, 4 P.3d 345, 368-69 (2000), the court cited to the Spears case in asserting the proposition that, “[a]lthough this factor has rarely been considered mitigating, it may be assigned some value.”  Good conduct during trial was found to have been “not proven” in the Jones case, due to conflicting evidence presented by the State that the defendant was trying to make himself “look good” during trial in order to minimize his participation in the crime.

Given the fact that there is some legal support for allowing evidence of good conduct during trial to be presented as a mitigating circumstance, where there is some evidence to justify it, good conduct should be permitted to be argued to the jury as a mitigating circumstance.

I.  Sub-Category One:  Good Behavior While Incarcerated or During Trial

*State v. Watson (Watson III), 129 Ariz. 60, 628 P.2d 943 (1981)
The defendant was a model prisoner and had attempted to further his education.  Together with other mitigation this was sufficient to overcome the aggravating circumstances.

State v. Schad (Schad I), 129 Ariz. 557, 633 P.2d 366 (1981)
The trial court found that the fact that the defendant was a model prisoner was a mitigating circumstance.  The Court here noted only that the trial court might consider the fact that he is a model prisoner.

State v. Ortiz,131 Ariz. 195, 639 P.2d 1020 (1982)
The trial court found the defendant’s activities in jail (offset by his spending the first three months of incarceration conspiring to kill the witnesses against him) as a “possible” mitigating circumstance, but concluded that this factor, which might ordinarily constitute a mitigating circumstance, was not 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. Gretzler (Gretzler III), 135 Ariz. 42, 659 P.2d 1 (1983)
The Court simply noted that the defendant presented evidence of his favorable adjustment to prison in mitigation.

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
The Court made no real determination, but recounted what the trial court did and upheld the sentence.  The trial court did not find that the defendant had proved a change in character.  Evidence revealing a substantial improvement of a defendant’s character could be viewed as a mitigating factor.  The trial court observed the defendant’s demeanor in court and was aware that the defendant had been in a very controlled environment with much to gain from good behavior.  The trial judge had before him evidence of the defendant’s lifestyle before his incarceration including the additional murder conviction.  The trial court could reasonably decline to find the proffered evidence to be a mitigating factor.

State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984)
The defendant argued that he is a model prisoner.  Since the defendant did not allege any facts to support that argument, that claim was not established.

State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)
The defendant has become religious, shown remorse and proved himself to be a placid prisoner.  These changes are commendable.  However, people sentenced to death frequently change their outlook on life.  This evidence militates in his favor, but not sufficiently to require leniency given the seriousness of his crimes.

State v.  Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)
The Court indicated that without a doubt, the defendant’s action in saving the life of another inmate was evidence in mitigation.  In addition, a guard told a group of death-row inmates that a female prison counselor was sexually available to them.  The defendant told the counselor and prison officials about this incident so that the matter could be resolved without harm to the counselor.  By reporting the incident, the defendant risked retaliation from other inmates.  This use of proper lines of prison communication to resolve this matter is evidence in mitigation.  Furthermore, the defendant claimed he was a model prisoner on death row.  Yet he does not interact with fellow prisoners.  One prison official defined a model prisoner as someone who interacts well with the other inmates.  Another official indicated that when inmates socialize with other prisoners, the group could draw them into trouble against their will.  The fact that the defendant does not socialize with other inmates cannot be held against him.  He is polite to prison officials, and has few disciplinary problems.  However, he does not use any of the prison facilities, such as counseling.  Apparently the defendant does not believe he needs counseling despite the fact that he has spent most of his life since his early teens behind bars.

State v. Patrick Poland (Patrick Poland II), 144 Ariz. 388, 698 P.2d 183 (1985)
The Court agreed with the trial court’s finding that although the defendant had been a “model prisoner,” this mitigating circumstance was not sufficiently substantial to call for leniency.

State v. Michael Poland (Michael Poland II), 144 Ariz. 412, 698 P.2d 207 (1985)
The Court merely noted that the fact that the defendant was a model prisoner was not a mitigating factor sufficiently substantial to call for leniency.

State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985)
The defendant may be a remorseful model prisoner and a help to the prison minister, but this evidence did not convince the Court that this changed lifestyle was sufficiently substantial to call for leniency.

State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)
The Court cited the trial court’s brief mention of the defendant’s record of good behavior while incarcerated.  The Court did not discuss good character further and merely stated that it agreed with the trial court that there are no mitigating circumstances sufficiently substantial to call for leniency.

State v. Schad (Schad III), 163 Ariz. 411, 788 P.2d 1162 (1989)
Although the defendant continued to show “exemplary behavior while incarcerated,” it was not sufficiently substantial to call for leniency in light of the two aggravating circumstances of pecuniary gain and prior crime of violence.

State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)
The defendant argued that he is a religious man, that he had been an ideal parolee, he helped other inmates, and that he assisted in putting out a prison fire.  The trial court concluded that mitigation was not warranted because the defendant had for 20 years pursued a life of crime.  The Court agreed with the trial court and noted that the defendant was an escapee when he killed the victim in this case and was captured only after a shootout with police officers.

State v. Lavers,168 Ariz. 376, 814 P.2d 333 (1991)
The defendant contended that the trial court improperly discounted evidence of his good conduct while in jail, and testimony by a defense psychologist that the defendant would be a model prisoner, by referring to the defendant’s “untimely and unsupported” requests of the court and his conflicts with counsel.  The trial court found the defendant’s conduct while incarcerated was mitigating, but not entitled to “great weight.”  Although the trial court refused to find the defendant’s conduct during trial as a separate mitigating circumstance, the record did not indicate that the trial court used the defendant’s conduct during trial to discount the mitigating circumstance of good conduct while incarcerated.

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
The defendant argued that his respectful, proper and controlled trial demeanor was a mitigating circumstance.  The record indicated that the defendant was respectful, proper and controlled, however, that would be expected in front of the jury or judge who would be deciding his fate.  This was not a mitigating circumstance, but a self-serving attitude.  In addition, outside of the presence of the jury and judge the defendant was anything but respectful, proper and controlled.  The defendant was written up for breaking jail rules and threatened to kill a deputy sheriff.  The defendant also argued that his adjustment to incarceration and his adoption of new goals was a mitigating circumstance.  The Court was not persuaded that the defendant had become a model prisoner.  The defendant has not used drugs since his arrest and through his parents has arranged to take some college courses.  These changes may be commendable, but are not sufficiently substantial to call for leniency.

State v. Samuel Lopez (Samuel Lopez II), 175 Ariz. 407, 857 P.2d 1261 (1993)
The defendant argued that he has evolved into a model prisoner and that this was a mitigating factor sufficient to relieve him from the death penalty.  Behavior in custody after the death sentence has been imposed may be considered in mitigation.  Claims of in-custody good behavior should be subject to close scrutiny.  Here, the defendant was a model prisoner only at the county jail awaiting resentencing.  Before that, he had a long record of disciplinary problems while in prison, including several incidents while originally on death row.  The trial court correctly observed that the defendant would be expected to behave himself while awaiting resentencing.  The Court agreed with the trial court that the defendant’s behavior in prison was not mitigating given his overall prison record.

State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993)
The defendant’s good behavior at trial says nothing about his character, tendencies, or rehabilitative potential.  It is not relevant to determining whether to impose a sentence less than death, and does not constitute a mitigating circumstance.

State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
The Court simply noted that it was in the defendant’s best interest to behave well at trial.

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.  The defendant also proffered his newfound religious faith in mitigation.  It was unclear if this proffered mitigation was not proven, or was simply insufficient to warrant leniency.

State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)
The Court agreed with the trial court without any discussion that the defendant’s conduct while incarcerated was mitigating, but not sufficiently substantial to call for leniency.

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
The trial court found the defendant’s good conduct while incarcerated and during trial 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 that his good work record in prison was mitigating.  The trial court properly rejected this because the defendant’s overall performance as an inmate has been poor.  The defendant escaped once, was written up on several occasions and also went AWOL.

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 has a newfound set of religious beliefs and values, and has become a model prisoner during his incarceration.

*State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
The Court found that significant evidence of Richmond’s changed character was presented at Richmond’s second capital sentencing hearing more than fourteen years earlier.  Although a majority of the Richmond II court declined to consider it in mitigation and affirmed Richmond’s death sentence, this Court reexamined the evidence and found it  “quite persuasive and most unusual for a capital case.”  Numerous witnesses testified that Richmond had taught himself to read, write, and type, and that he had used these new skills as tools for both his own spiritual growth and to help others inside and outside the prison system.  Some of the most compelling evidence came from prison counselors and guards, who stated that Richmond’s efforts at rehabilitation were sincere, and gave specific examples of how he had bettered himself and helped others.  The Court had good reason to believe that if it were to remand for a third sentencing hearing, the defense would introduce much more of the same kind of evidence from the more than fourteen years that had passed since Richmond’s last sentencing hearing.    Evidence of Richmond’s changed character was particularly relevant because the imposition of his death sentence was so clearly based upon his character – the (F)(1) aggravating circumstance for another killing that occurred approximately one month after the murder in this case.  The Court reduced Richmond’s sentence to life.

State v. Hinchey, (Hinchey II), 181 Ariz. 307, 890 P.2d 602 (1995)
Although the fact that a capital defendant is a model prisoner had previously been considered a mitigating circumstance, a sentencing judge is not required to accept it as mitigating.  The trial court considered the evidence and found that it was not mitigating.  The Court agreed with this conclusion.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
The Court refused to find good behavior during pretrial and presentence incarceration as a mitigating circumstance.  Although long-term good behavior during post-sentence incarceration has been recognized as a possible mitigating factor, a defendant would be expected to behave himself in county jail while awaiting sentencing.

State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995)
The defendant claimed that he was a model prisoner because he did what was expected of him and he informed a corrections officer about a threat to the officer’s life.  The Court balanced this against the seriousness of this crime and concluded that the defendant’s behavior in prison was not sufficiently mitigating to call for leniency.

State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995)
The Court noted without discussion that the defendant’s good character while incarcerated was supported by evidence in the record.

State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)
Good conduct in front of the judge or jury is not necessarily a mitigating circumstance.  Nor is good conduct during pretrial and presentence incarceration.  The defendant was respectful and cooperative in court.  He apparently had no disciplinary problems while in jail.  This does not prove that he was a model prisoner.  This conduct in jail and in court was entitled to some mitigating weight however.

State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)
The defendant sought to prove his good behavior by a sentencing memorandum.  During his previous prison terms he did not have a disciplinary record.  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. Hurles, 185 Ariz. 199, 914 P.2d 1291 (1996)
The trial judge found that the defendant exhibited good behavior while incarcerated prior to committing the murder.  However, this, along with his family background was insufficient to call for leniency.

State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
The Court agreed with the trial court that the defendant’s behavior at trial was not relevant to his character, tendencies, or rehabilitative potential.

State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)
The Court agreed with the trial court that the defendant had proven good behavior while incarcerated.  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. Henry (Henry II), 189 Ariz. 542, 944 P.2d 57 (1997)
Henry claimed that the trial court erred in refusing to consider that he assisted other inmates with legal research and helped to establish a prison law library.  The trial court expressly considered this evidence, but concluded it was not “the type of circumstance that rises to the level of what mitigation ought to be.”  Noting that there is no requirement that evidence reach a certain threshold to warrant consideration as mitigation, the Court interpreted the trial court’s language as meaning that this information, even if true, carried little or no weight.  The Court’s independent review of the record confirmed the trial court’s conclusion.  Aside from testimony from Henry, there was no evidence that he helped establish a library.  Regarding legal assistance to others, the trial court had warned Henry on several occasions that he was authorized to use the library only for his own case and was not permitted to do research for other inmates.  Any mitigating value was nullified by his disregard of the court’s directive.  Henry claimed that his lack of disciplinary problems in prison should have been considered a mitigating circumstance.  The Court reiterated its holding in Hinchey, that a sentencing judge is not required to accept in mitigation the fact that a defendant has been a model prisoner.  Moreover, the record indicates that Henry was less than the ideal inmate.  His own witness would only admit that Henry was “about the average” for a person on death row.

State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)
The sentencing judge acknowledged that the defendant had experienced personal growth in prison and had caused no problems, without specifically finding this to be a mitigating factor.  The Court noted that it has previously rejected pretrial and presentence good behavior during incarceration as a mitigating circumstance.  A defendant would be expected to behave himself in county jail while awaiting sentencing.  Thus, the Court declined to find the defendant’s good behavior while in the Pima County Jail a mitigating factor.

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
Claims of good behavior while incarcerated are subject to close scrutiny.  The defendant was not a model prisoner despite his positive work evaluations and work as a law clerk in the law library.  He was placed on facility probation for having a razor blade in his cell.  He disobeyed an order and destroyed property.  Some of his work evaluations contained negative comments as well.  The defendant referred the Court to his military record apparently as some evidence of his ability to do well in a structured environment.  However, his military record is tarnished by his attempt to make himself sick to obtain a medical discharge.  The defendant’s conduct was entitled to little, if any, mitigating weight.

*State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
The trial court found that Trostle demonstrated good conduct during trial, but that it was irrelevant in mitigation.  In dismissing Trostle’s trial behavior, the judge correctly observed that such conduct “is the norm and is expected.”

State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998)
The Court noted without discussion that the defendant’s good behavior during previous incarcerations was not sufficiently substantial to call for leniency.

State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
he trial court found that Smith proved by a preponderance of the evidence his “controlled conduct in court hearings,” which was a mitigating circumstance.  The trial court also found that Smith had proven his “newfound religious beliefs” as a mitigating circumstance.  The trial court refused, however, to find that Smith proved that his conduct during pretrial incarceration 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. White (White II), 194 Ariz. 344, 982 P.2d 819 (1999)
The “model prisoner” assertion has been recognized as nonstatutory mitigation.  The defendant testified that he has tried to be a model prisoner and avoid gangs and drugs while in prison.  This was considered and weighed in resentencing and found to be insufficient to warrant leniency.  The defendant also argued his acceptance of life in prison as a mitigating circumstance.  This factor bears little weight.  This was considered and found to not warrant leniency.

State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
The defendant argued that he showed good behavior during trial. A psychologist noted that the defendant tried to minimize his involvement in activities and tried to make himself look good. A trial would be the ideal place to bring out the defendant’s best behavior. The trial court properly found that this was not proven.

State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)
The Court agreed with the trial court that this was proven but did not merit weight or call for leniency given the deliberate nature of the crime and the circumstances of the murder.

State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001)
The defendant’s good behavior was a mitigating factor, but warranted little weight because good behavior is expected of all inmates.

State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
The defendant’s good behavior during incarceration was a mitigating factor, but warranted little weight because good behavior is expected of all inmates.

State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111 P.3d 369 (2005)Jury Trial/Ind. Review
There was evidence that Anderson had been a “model inmate.”  Laudable, but insufficient to call for leniency.

State v. Harrod ("Harrod III"), 218 Ariz. 268, 183 P.3d. 519 (2008) Excellent behavior while incarcerated was not a mitigating circumstance because inmates are expected to behave well in prison. ¶62.

State v. (Shad Daniel) Armstrong (Armstrong III), 218 Ariz. 451, 189 P.3d 378 (2008)
Fact that the defendant has behaved and will behave well in incarceration is not regarded by the Court as a mitigating circumstance because inmates are expected to behave well in prison.

State v. (Christopher Mathew) Payne, 2013 WL 6252412 (November 21, 2013)
Defendant did not object to the trial court’s erroneous finding that good inmate behavior is irrelevant.  Although “good inmate” behavior is relevant, given the strength of the proven aggravators any error in precluding the evidence was not fundamental.


II.  Sub-Category Two:  Enhanced Education

*State v. Watson (Watson III), 129 Ariz. 60, 628 P.2d 943 (1981)
The defendant was a model prisoner and had attempted to further his education.  Together with other mitigation this was sufficient to overcome the aggravating circumstances.

State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
The Court found that significant evidence of Richmond’s changed character was presented at Richmond’s second capital sentencing hearing more than fourteen years earlier.  Although a majority of the Richmond II court declined to consider it in mitigation and affirmed Richmond’s death sentence, this Court reexamined the evidence and found it  “quite persuasive and most unusual for a capital case.”  Numerous witnesses testified that Richmond had taught himself to read, write, and type, and that he had used these new skills as tools for both his own spiritual growth and to help others inside and outside the prison system.  Some of the most compelling evidence came from prison counselors and guards, who stated that Richmond’s efforts at rehabilitation were sincere, and gave specific examples of how he had bettered himself and helped others.  The Court had good reason to believe that if it were to remand for a third sentencing hearing, the defense would introduce much more of the same kind of evidence from the more than fourteen years that had passed since Richmond’s last sentencing hearing.    Evidence of Richmond’s changed character was particularly relevant because the imposition of his death sentence was so clearly based upon his character – the (F)(1) aggravating circumstance for another killing that occurred approximately one month after the murder in this case.  The Court reduced Richmond’s sentence to life.

State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994)
The defendant argued that his prison record of educating himself, tutoring others and attending counseling was mitigating.  The Court found this claim to be hollow and not a proper mitigating circumstance.  The defendant had been convicted of crimes nine separate times and sentenced to prison five times.  Two of those convictions were for promoting prison contraband and aggravated escape.  He has a history of committing crimes while on parole.  In fact, this victim was killed while the defendant was on parole.

III.  Sub-Category Three:  New Spirituality/Religious Convictions

State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)
The defendant has become religious, shown remorse and proved himself to be a placid prisoner.  These changes are commendable.  However, people sentenced to death frequently change their outlook on life.  This evidence militates in his favor, but not sufficiently to require leniency given the seriousness of his crimes.

State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985)
The defendant maintained that he has changed his attitude while in prison and is now religious and remorseful.  The defendant may be a remorseful model prisoner and a help to the prison minister, but this evidence did not convince the Court that this changed lifestyle was sufficiently substantial to call for leniency.

State v. Serna (Serna I), 163 Ariz. 260, 787 P.2d 1056 (1990)
The defendant argued that he had been a religious person since 1983.  He ministered to other inmates and contributed to chapel programs in prison.  The trial court rejected this evidence as not being sufficiently mitigating to grant leniency.  The Court agreed with that assessment.

State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)
The defendant argued that he is a religious man, that he had been an ideal parolee, he helped other inmates, and that he assisted in putting out a prison fire.  The trial court concluded that mitigation was not warranted because the defendant had for 20 years pursued a life of crime.  The Court agreed with the trial court and noted that the defendant was an escapee when he killed the victim in this case and was captured only after a shootout with police officers.  

State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
The Court simply noted that it was in the defendant’s best interest to behave well at trial.

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.  The defendant also proffered his newfound religious faith in mitigation.  It was unclear if this proffered mitigation was not proven, or was simply insufficient to warrant leniency.

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 has a newfound set of religious beliefs and values, and has become a model prisoner during his incarceration.

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)
Miller became religious after his arrest and the trial court found this mitigating.  The Court agreed with the trial court that the mitigating circumstances, individually and cumulatively, were not sufficiently substantial to call for leniency.

IV.  Sub-Category Four:  Personal Growth/ New Goals

State v. Richmond (Richmond III) 180 Ariz. 573, 886 P.2d 1329 (1994)
The Court found that significant evidence of Richmond’s changed character was presented at Richmond’s second capital sentencing hearing more than fourteen years earlier.  Although a majority of the Richmond II court declined to consider it in mitigation and affirmed Richmond’s death sentence, this Court reexamined the evidence and found it  “quite persuasive and most unusual for a capital case.”  Numerous witnesses testified that Richmond had taught himself to read, write, and type, and that he had used these new skills as tools for both his own spiritual growth and to help others inside and outside the prison system.  Some of the most compelling evidence came from prison counselors and guards, who stated that Richmond’s efforts at rehabilitation were sincere, and gave specific examples of how he had bettered himself and helped others.  The Court had good reason to believe that if it were to remand for a third sentencing hearing, the defense would introduce much more of the same kind of evidence from the more than fourteen years that had passed since Richmond’s last sentencing hearing.    Evidence of Richmond’s changed character was particularly relevant because the imposition of his death sentence was so clearly based upon his character – the (F)(1) aggravating circumstance for another killing that occurred approximately one month after the murder in this case.  The Court reduced Richmond’s sentence to life.

State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)
The adoption of new goals may militate in a defendant’s favor but does not require leniency.  There was no evidence that the defendant had actually adopted new goals.  The adoption of new goals was not a nonstatutory mitigating circumstance here.

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 conduct while incarcerated and his adoption of new goals, including education and art, as nonstatutory mitigating circumstances.

State v. McGill, 213 Ariz. 147, 140 P.3d 930 (2006) Jury Trial/Indep. Review
Evidence showed defendant did well in institutions. Because defendant attempted to kill a witness to this crime while incarcerated, there was “little support” for the model prisoner claim.

State v. (Joe Clarence) Smith, 215 Ariz. 221, 159 P.3d 531 (2007) Jury Trial/Indep. Review
Smith’s good conduct 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)
Model Prisoner: the court gave this mitigation minimal weight because all prisoners are expected to behave and adapt to prison life.

State v. (Wendi Elizabeth) Andriano, 215 Ariz. 497, 161 P.3d 540 (2007)
The court found that the defendant’s good conduct while in jail awaiting trial was of little weight because inmates are expected to behave.

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