Capital Sentencing Guide

REMORSE / GRIEF

REMORSE/GRIEF 

[This category contains cases where the defendant argued his remorse for the crime as mitigation. Only one case, State v. Milke, argued grief. These cases make clear that the existence of remorse is a credibility determination best made by the sentencing judge.]

State v. Arnett (Arnett II), 125 Ariz. 201, 608 P.2d 778 (1980)
The trial judge noted that from the defendant's testimony that he did feel remorse. The Court agreed with this assessment.

State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
After considering all of the mitigation presented, including the evidence suggesting remorse 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. James, 141 Ariz. 141, 685 P.2d 1293 (1984)
The defendant claims that he now realizes the wrongfulness of his conduct and feels genuine remorse. The trial judge heard this claim and did not believe it. This mitigating circumstance was not established.

State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)
The defendant did express remorse while on the witness stand. The trial court did not find this sufficiently substantial to call for leniency. The trial judge said, "I'd get a little remorseful too, after spending a few years in prison." The Court agreed with this analysis and conclusion.

State v. Clabourne (Clabourne I), 142 Ariz. 335, 690 P.2d 54 (1984)
The defendant raised remorse as a possible mitigating circumstance, but even his counsel admitted that these feelings were minimal. This was not sufficient to constitute a mitigating circumstance.

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. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)
The Court cited the trial court's brief mention of the defendant's admission of guilt for his offenses and expression of remorse. The Court did not discuss remorse 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. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987)
The Court reviewed oral and written transcripts of the defendant's remorse. This was insufficient along with the other proffered evidence in mitigation to outweigh the aggravating circumstances.

State v. Wallace (Wallace I), 154 Ariz. 362, 728 P.2d 232 (1986)
The Court agreed with the trial court's determination that Wallace's genuine remorse was not sufficiently substantial to call for leniency in sentencing him for the murders of his girlfriend's two children.

State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990)
The Court listed several mitigating circumstances, including the defendant's remorse at the time of arrest, 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 expression of remorse 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 was remorseful for his crimes. The trial court concluded that this was insufficient to require leniency and the Court agreed with that assessment.

State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991)
The defendant proffered in mitigation his expression of sorrow for the victim's death. The Court noted this, but did not discuss it. The Court concluded that this was insufficient to warrant leniency.

State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992)
Remorse can be a mitigating factor. Here, however, the defendant's own words did not indicate a true sense of sorrow or penance. He stated that he missed the activities he used to do with the victim, but did not miss the victim at all. He was "not in the least bit unhappy that she is dead." This did not indicate true remorse.

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
Sympathy or remorse may be a mitigating factor, but on balance, the defendant's sympathy was not sufficient to call for leniency.

State v. Runningeagle, 176 Ariz. 59, 859 P.2d 169 (1993)
The defendant argued that the trial court penalized him for his lack of remorse, which was a result of his assertion of innocence. The Court found that this claim was not supported by the special verdict and was without merit.

State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
The defendant apparently made a statement to Anke, an accomplice, at the victim's funeral that he regretted killing her. 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 claimed that he expressed remorse and that it was a mitigating circumstance. But the defendant never publicly accepted responsibility for his crime, and therefore, his remorse for the death of the victim was ineffectual. The evidence, including the defendant's own words and actions, belied his claim of remorse.

State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)
Several witnesses, including some mental health experts, testified about the defendant's grief. The mental health experts disagreed about whether the defendant was grieving because of the loss of her freedom or the loss of her son. The lay witnesses were also conflicting regarding her demonstrations of grief. Given this conflicting testimony, the Court gave great deference to the trial judge's conclusion that the defendant's grief in this case was not shown to be a mitigating factor.

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
The trial court considered remorse as a nonstatutory mitigating circumstance. The trial court did not find this to constitute a mitigating circumstance and the Court agreed with this analysis without discussion.

State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)
The Court noted that remorse may constitute a nonstatutory mitigating circumstance. Gallegos claimed he did not intend to kill the victim. Nevertheless, once he believed he had caused her death, his actions demonstrated little remorse. He proceeded to have anal intercourse with her for 15 to 20 minutes, and after he finished, he carried her naked body out of the house and dumped her under a tree. He returned to the house and went to bed, and the next morning he began working on his vehicle as though nothing had happened. When the police arrived, he did not tell them what had happened, but instead participated in a feigned search for her, deliberately avoiding the area where he had dumped her body. The Court found that Gallegos' initial actions evinced little remorse, but agreed with the trial court that his eventual cooperation with police and his verbal expressions of remorse justified a finding that he was remorseful for his actions.

State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
The Court agreed with the trial court that the defendant failed to prove remorse. The defendant never admitted harming either victim and expressed no remorse for their deaths.

State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
The defendant argued in mitigation that he was remorseful. The Court adopted the findings of the trial court that the defendant failed to prove this nonstatutory mitigating circumstance.

State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)
The trial court found that the defendant had not proven remorse. The Court agreed with this conclusion without discussion.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Although remorse may be considered mitigating, Stokley failed to prove by a preponderance of the evidence that he was remorseful. A criminal justice consultant testified that Stokley had feelings of remorse and Stokley made a statement to the court prior to sentencing. He said that he had been made a scapegoat in this case, and although he was culpable, there was no premeditation on his part. He did express "grief" and "sorrow" and "torment," but the Court found that this statement and the testimony of the consultant were inadequate to prove remorse as a mitigating circumstance.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
The defendant failed to prove by a preponderance of the evidence that he was remorseful. In a letter to the trial judge, he said that there "is not one piece of evidence that points to me as having killed Mr. Morrison or Ms. Appelhans. There is evidence that someone did. But I am not responsible."

State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995)
There was conflicting evidence in the record regarding remorse. The defendant called his mother directly after the murder and threatened to commit suicide. He told her that he had done a terrible thing and had killed Irene. At the aggravation/mitigation hearing, the defendant commented that he was "devastatingly sorry" and that he would accept his fate. On the other hand, the defendant made other statements characterizing his trial as a mockery of the judicial system and maintaining that this crime was not a first degree murder. The Court noted that the defendant eluded the police by fleeing to Laughlin, Nevada, and then to Montana. The defendant continued to deny his responsibility for the murder in statements to the trial court. The evidence regarding remorse was not very convincing. The Court determined that there was insufficient evidence to find remorse as a nonstatutory mitigating circumstance.

State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)
The defendant failed to prove remorse by a preponderance of the evidence.

State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d 1056 (1996)
At resentencing, Gallegos again expressed remorse, and the Court agreed that his remorse was a nonstatutory mitigating circumstance. See Gallegos I.

State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
Dr. Potts testified that the defendant was genuinely remorseful about murdering Robert Weaver and attempting to murder Katherine Gumina, but that the defendant has not accepted responsibility for Tisha Weaver's death. The defendant failed to prove remorse by a preponderance of the evidence.

State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)
The Court simply listed the defendant's feelings of remorse 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)
The trial court found, sua sponte, that Miller's remorse was a mitigating circumstance. The Court agreed with the trial court that the mitigating circumstances in this case, individually and cumulatively, were not sufficiently substantial to call for leniency.

State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
The trial judge found that the defendant had exhibited some sympathy or remorse for the victims and their families, but was insufficient to call for leniency. The Court agreed with this assessment without discussion.

State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)
The Court agreed with the trial court that the defendant had proven his admission of guilt and feeling of remorse. 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. Detrich (Detrich II), 188 Ariz. 57, 932 P.2d 1328 (1997)
The trial court found that Detrich felt some remorse for the killing, but that the mitigating evidence in this case was not sufficiently substantial to outweigh the aggravating circumstance of having committed the murder in an especially cruel, heinous or depraved manner. The Court agreed, noting that although Detrich expressed some remorse for the victim's death, he claimed he was not responsible for the murder.

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 remorse 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)
There was no evidence of remorse in relation to this murder. This was not a mitigating circumstance.

State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)
The Court found that Spreitz expressed remorse for the victim's death on more than one occasion. He expressed remorse to the presentence investigator, in a letter to the sentencing judge, and at his sentencing. The Court found that since his arrest, the defendant demonstrated remorse and accepted responsibility for the victim's death, but that his remorse did little to counterbalance cruelty as a serious aggravating circumstance in the victim's death. According to the defendant's confession, when he left the victim in the desert, he did not know whether she was alive or dead. The defendant's remorse would have been "a more compelling mitigating factor if, for example, it had prompted him to report his actions to the authorities."

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
The defendant went to his pastor's home immediately after the murder and confessed. He then drove them to his parents' house and turned himself in to the police. The trial judge did not find remorse based on the defendant's manner and demeanor before, during, and after the trial. Where the trial judge disbelieves a defendant's statements claiming remorse, the circumstance is generally not established.

*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 remorse. The record contained evidence supporting this factor and "it is relevant for mitigation purposes." In letters written to both the victim's family and the judge, Trostle expressed remorse for the damage his "rash and unthoughtful" actions had caused. The Court considered this mitigating circumstance in its independent reweighing.

State v. Djerf, 191 Ariz. 583, 959 P.2d 1274 (1998)
The evidence did not support the defendant's contention that his guilty pleas were meant to spare the remaining members of the Luna family. This decision was a tactical one made in the face of overwhelming guilt. The defendant did write letters saying that the Luna family did not deserve to die and that he, the defendant, did. He also, however, attempted to blame the murders on other people, and indicated to a reporter that under the right circumstances he could kill again. The defendant did not prove remorse or his taking responsibility for the crimes by a preponderance of the evidence.

State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998)
The Court rejected Greene's claim of remorse as a mitigating factor in this case. Any claims of remorse by Greene were completely negated by his vile state of mind, as shown by letters he wrote long after the murder, and at a time when he was no longer using drugs.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
Remorse may be considered in mitigation. Although the defendant expressed regret to his girlfriend, he also boasted that he would never be held accountable because the incriminating evidence had been destroyed. The defendant told Dr. Tatro that he regretted his conduct because of the predicament in which it placed him. The state's expert testified that the defendant expressed no remorse and blamed the other participants.

State v. Poyson, 198 Ariz. 70, 7 P.3d 79 (2000)
The defendant presented some minor evidence of remorse that the trial court and the Court found unpersuasive. This was not given any weight in mitigation.

State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
The defendant’s remorse did not warrant leniency. The defendant committed three robberies on three different dates. It was during the third robbery that a murder occurred. The Court held the defendant’s remorse did not stop him from committing the second and third robberies and did not offset his willingness to hurt or kill innocent people for financial gain.

State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002)
The defendant made an apologetic statement to the victims and their families at his sentencing hearing. Nevertheless, the trial court did not find remorse. Because the trial court observed the defendant throughout the proceedings, the Court affirmed.

*State v. Bocharski, 218 Ariz. 476, 189 P.3d 403 (2008)
The defendant’s allocution, in which he expressed remorse, established this factor.

State v. (Brian Jeffrey) Dann, __ Ariz. __, 207 P.3d 604 (May 19, 2009)
The court has recognized remorse as a non-statutory mitigating circumstance, but gives it little weight when the defendant denies responsibility for his conduct. Because Dann maintained throughout the resentencing trial that he was actually innocent and that someone else killed the victims, the court found that he did not prove this mitigating factor by a preponderance of the evidence.

State v. (Julius Jarreau) Moore, 2009 WL 2194863__ Ariz. __, __ P.3d __ (July 23, 2009)
The court found that Moore had not proven the mitigating factor of remorse by a preponderance of the evidence.  Moore continues to deny responsibility for the murders, and his expressions of regret have more to do with the impact on his family than remorse about the murders.

State v. (Leroy D.) Cropper, 223 Ariz. 522, 225 P.3d 579 (2010)
The Court found Cropper’s expression of remorse in allocution, and testimony by witnesses that he had changed while in prison to be sufficient to establish this mitigator. However, the Court accorded it less weight based on the State’s strong rebuttal evidence that Cropper threatened penal personnel and wrote letters mocking them and bragging about the murder, continued to have disciplinary problems and act violently, and assaulted another inmate after the murder.

State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010)
The Court rejected remorse as mitigation because Garcia consistently denied involvement in the murder.

State v. (Wayne Benoit) Prince, 226 Ariz. 516, 250 P.3d 1145 (2011)
The Court found Prince’s expression of remorse in allocution was entitled to some weight.

State v. (Brad Lee) Nelson, 229 Ariz. 180, 273 P.3d 632 (2012)
Nelson expressed remorse, apologizing to his sister in writing and in open court.  However, the jury had discretion to consider how much weight to give that evidence.  The jury did not abuse its discretion in determining that Defendant’s mitigating evidence was not “sufficiently substantial to call for leniency.” A.R.S. § 13-751(E).  The Court also declined to follow its previous precedent in State v. Bocharski, 218 Ariz. 476, 189 P.3d 403 (2008), because that was an independent review case involving the F(9) factor.

State v. (Manuel) Ovante, Jr., 231 Ariz. 180, 291P.3d 974, 2013 WL 132542 (2013)
Ovante presented several mitigation witnesses, who testified as to Ovante's childhood of poverty, violence, crime, molestation, and drug use.  Defendant provided evidence of his longstanding substance abuse, and expressed remorse during allocution.  The Court held that there was little evidence showing a strong connection between the mitigation and the murders; thus, the mitigation evidence was afforded little weight.

The Court held that a reasonable juror could conclude that the mitigating circumstances were not “sufficiently substantial to call for leniency.”

CONTINUE TO RESIDUAL DOUBT/INNOCENCE