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RESIDUAL DOUBT/INNOCENCE

NON-STATUTORY - RESIDUAL DOUBT/INNOCENCE

United States Supreme Court:  On February 22, 2006, the United States Supreme Court decided Oregon v. Guzek, __U.S.__, 126 S. Ct. 1226, the capital case concerning whether a capital defendant has a federal constitutional right to admit new alibi evidence in mitigation at a re-sentencing hearing (a/k/a the “residual doubt case”).  The Court unanimously (8-0, with Alito not participating) rejected the defendant’s claim.  Please note that this case does not stand for the proposition that a capital defendant has no federal constitutional right to present residual doubt evidence or argument at sentencing.  To the contrary, the opinion expressly states that it is sidestepping this question.  Rather, Guzek is a narrow decision that rules only on the right to present new alibi evidence in mitigation when the jury already has for its consideration transcripts of testimony from the guilt phase that contain some of that same alibi evidence.  (Guzek's mother and grandfather testified at the guilt phase - and the mother would have further testified at the re-sentencing hearing - that Guzek was either with her or his grandfather at the time of the crime).

The Court set forth three factors that must be satisfied to justify a trial court’s exclusion of “residual doubt”; evidence.  To determine if evidence can be precluded under the State’s authority to “set reasonable limits upon the evidence” in order to achieve a “more rational and equitable administration of the death penalty,” ask:

  1. Does the evidence concern “how” and not “whether” a defendant committed the crime (traditional sentencing considerations shed light on the manner in which the crime was committed and not whether it was committed);

  2. Have the parties “previously litigated the issue to which the evidence is relevant – whether the defendant committed the basic crime” (the law discourages collateral attacks of this kind); and

  3. Will preclusion have a “minimal adverse impact” on the defendant’s ability to present his claim at sentencing (will some evidence of the claim have been presented to the jury at any point in any form)[1]

In all practicality, the Guzek opinion will support the decision of a trial judge to preclude residual doubt evidence whenever a capital defendant seeks to present evidence to a sentencing jury that he is actually innocent.  But the trial judge will likely need to apply the “test” when making such a ruling.  Special attention may have to be given in cases of re-sentencing, since new sentencing juries will not have heard the guilt phase evidence and this may impact the third Guzek "factor" (though not the first two factors).  Of course, the court remains free to admit such evidence.

Arizona Supreme Court:  To date, the Arizona Supreme Court’s treatment of “residual doubt” has lacked definitive parameters due largely to the fact that, because trial judges had up until recently made the sentencing determination, any concerns that a judge had regarding the actual sufficiency of the evidence in a case could be redressed at the time of sentencing.  And, if a defendant had to be re-sentenced, the task would generally be remanded to the same judge who presided over the initial guilt phase, thus ensuring that the judge imposed a sentence in light of all the evidence presented in the case.  But now that juries decide between life and death, our courts must grapple with the issue of residual doubt as it has been debated by other jurisdictions with jury sentencing.  The question being: is evidence that a defendant is actually innocent relevant to a capital sentencing proceeding?  Generally, this issue will most likely take on prominence when a defendant is being re-sentenced on remand, and a jury different from the initial jury that considered the evidence and issues surrounding the defendant’s guilt is seated to hear only the sentencing questions.

This issue will have to be resolved by each judge individually, depending on the facts of the case and what the defendant seeks to prove.  Below are excerpts from a legal memorandum that may help guide in that decision.

A.  Lingering Doubt Distinguished

Although the term “lingering doubt” is at times used synonymously with “residual doubt,” see Franklin v. Lynaugh, 487 U.S. 164, 187 (1988) (O’Connor, J., concurring) and State v. Murray, 184 Ariz. 9, 45 (1995), cert. denied, 518 U.S. 1010 (1996), the two terms must be distinguished to take into account the differing ways in which a jury may experience doubts about the propriety of imposing a death sentence.  “Lingering” or “remaining” doubt applies to the level of uncertainty that a juror may have as he engages in the weighing process and attempts to discern what mitigation exists and how much weight it should be accorded.  Thus, lingering doubt bespeaks of uncertainty in the quantum of mitigation, or how such mitigation weighs against the aggravating factors.  See, e.g., Kennan v. California, 480 U.S. 1012 (1989) (juror should have not been bullied and threatened into foregoing any “lingering doubts” about the “appropriateness of imposing the death penalty”) (Marshall, J., dissenting); Rockwell, 161 Ariz. at 16 (“The significant mitigating evidence this case presents balanced against a single aggravating factor causes us to question whether a death sentence is warranted here. That being the case, we will continue to adhere to the principle that, "[w]here there is a doubt whether the death penalty should be imposed, we will resolve that doubt in favor of a life sentence." ); State v. Valencia, 132 Ariz. 248, 250-51 (1982) (where there is “doubt” about how much weight to give defendant’s youthful age of 16 when compared to the severity of the crime, the court will “resolve that doubt in favor of a life sentence”).[2]

In contrast, “residual” doubt addresses the level of uncertainty that a juror may have that the defendant is actually the guilty party.   As noted by Justice O’Connor, far from being a “fact about the defendant or the circumstances of the crime,” residual doubt is “lingering uncertainty about facts, a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’” Franklin, 487 U.S. at 187-88 (O’Connor, J., concurring).  In this context, residual doubt serves as a heightened burden of proof, requiring the imposition of the death sentence only upon proof beyond all doubt.  See Id. at 188 (“Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing”); accord State v. Harrod (“I”), 200 Ariz. 309, 317, n.7 (2001), judgment vacate and remanded on other grounds at 536 U.S. 953 (2002) (“residual doubt” is equated with an “absolute certainty” standard that “may be a more appropriate standard for the imposition of the death penalty”).

B.  Heightened Standards of Proof Distinguished

Ideas surrounding residual doubt have been conflated not only with lingering doubt but with arguments regarding heightened standards of proof in capital cases.  Typically a defendant will argue that he is entitled to a residual doubt instruction to take advantage of the “gap” between the jury’s verdict that he is guilty beyond a reasonable doubt, and the jury’s potential uncertainty as to whether he is guilty beyond any and all doubt.  As this example illustrates, the use of residual doubt as a mitigating circumstance can functionally equate to the use of a heightened certainty standard of requiring a conviction of belief “beyond all doubt.”  However, these ideas are not necessarily wedded and parties will often conflate them.  Therefore, arguments for a heightened certainty standard may need to be considered independently of arguments promoting the residual doubt factor.

Absolute certainty standards have been recognized in two main contexts.  First, a defendant may request that the jury be required to find that, in performing the weighing process, aggravation outweighs mitigation “beyond all doubt” (a defendant may instead argue for a “beyond a reasonable doubt” standard).  This has been termed, “measuring the balance.”  Second, a defendant may request that the jury be required to find that there is “no doubt” that death is the appropriate punishment because the mitigation is not sufficiently substantial to call for leniency; if there is any doubt, this doubt should be resolved in favor of life.  This addresses the level of “certitude” required of the jury.  See State v. Rizzo, 833 A.2d 363 (Conn. 2003) (full discussion of these two standards).  These standards are not aimed at securing certainty of the defendant’s guilt, but at the appropriateness of a death sentence in light of all proven mitigation.  Adding such a heightened standard to the actual guilt finding, i.e.: residual doubt, is simply another application of the absolute certainty argument in another context.  Therefore, care should be taken to separately evaluate these arguments, if they are presented in one bundled package.

As noted below, there is Arizona authority for instructing the jury that any doubts about the appropriateness of the death penalty, in light of the mitigating and aggravating circumstances, should be resolved in favor of a life sentence.  State v. Rockwell, 161 Ariz. 5 (1989).  But such an instruction is distinct from the question of whether jurors should be told or even permitted to consider evidence and arguments of actual innocence.

C.  Supreme Court Law – Franklin v. Lynaugh, 487 U.S. 164 (1988)

The Franklin Court, in a plurality opinion written by Justice White and joined by Rehnquist, Scalia and Kennedy, stated plainly, “[the] Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation.”  Id. at 173.  Rather, the Court’s prior decision in Lockhart v. McCree, 476 U.S. 162 (1986) “stands for the simple truism that where ‘States are willing to go to allow defendants to capitalize on “residual doubts,”’ such doubts will inure to the defendant’s benefit.”  Id. (quoting Lockhart, 476 U.S. at 181).  “Lockhart did not “endorse capital sentencing schemes which permit such use of ‘residual doubts,’ let alone suggest that capital defendants have a right to demand jury consideration of ‘residual doubts’ in the sentencing phase.  Even the Lockhart dissent recognized that there have been only a ‘few times in which any legitimacy has been given’ to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase.” Id. (quoting Lockhart, 476 U.S. at 205-06 (Marshall, J., dissenting)) (emphasis in original).  Furthermore, the Court’s prior holding in Lockett v. Ohio, 438 U.S. 586, 604 (1978) - that a sentencer cannot be precluded from considering as a mitigating factor “any aspect of a defendant’s character or record and any of the circumstances of the offense” - was viewed to “in no way mandate[] reconsideration by capital juries, in the sentencing phase, of their ‘residual doubts’ over a defendant’s guilt,” because “[s]uch lingering doubts are not over any aspect of petitioner’s ‘character, ‘ ‘record,’ or a ‘circumstance of the offense.’”  487 U.S. at 174 (emphasis added).

Significantly, the Franklin Court pointed out that the benefits of having a jury consider “residual doubts” as to a defendant’s actual guilt could only be had when the sentencing jury was the same as the guilt-phase jury.  As a result, “[f]inding a constitutional right to rely on a guilt-phase jury’s ‘residual doubts’ about innocence when the defense presents its mitigating case in the penalty phase is arguably inconsistent with the common practice of allowing penalty-only trials on remand of cases where the death sentence, but not the underlying conviction, is struck down on appeal.”  Franklin, 476 U.S. at 173, nt. 6.  The Court noted that, were it to adopt Franklin’s argument, penalty-phase remands would arguably violate the Eighth Amendment, since a defendant so remanded would face a jury that had not heard the guilt phase “in full,” thus preventing the defendant from “hav[ing] the benefit of any potential guilt-phase ‘residual doubts.’”  Id.   The Court opined that it was “quite doubtful that such ‘penalty-only’ trials” were constitutionally unsound under the Eighth Amendment.  Id.  See also Lockhart, 476 U.S. at 181 (Although some states do not allow a defendant to argue “residual doubts” to the jury at sentencing, a defendant’s interest in having the same jury determine both guilt and sentence to take advantage of any possible “residual doubts” is not “wholly vitiate[d];” “it seems obvious to us that in most, if not all, capital cases much of the evidence adduced at the guilt phase of the trial will also have a bearing on the penalty phase; if two different juries were to be required, such testimony would have to be presented twice, once to each jury…. ‘Such repetitive trials could not be consistently fair to the State and perhaps not even to the accused.’”) (quoting Rector v. State, 659 S.W.2d 168, 173 (1983), cert. denied, 466 U.S. 988 (1984)).

*  *  *

Decisions from the Supreme Court since Franklin have reinforced two important principles grounded in that case: first, that jury instructions on mitigation need not specifically address each proffered mitigating circumstance [Boyde v. California, 494 U.S. 370 (1990); Buchanan v. Angelone, 522 U.S. 269 (1998)]; and second, that mitigation evidence continues to remain tethered to the principles of relevance [Tennard v. Dretke, __U.S.__, 124 S. Ct. 2562 (June 24, 2004)].  And, taken together, this group of opinions re-affirm the principle that, while the threshold test for evidentiary relevance in the penalty phase of a capital trial is quite low, it does still exist, and there are facts and circumstances which are irrelevant to mitigation.  The Court has left the ascertainment of what is relevant to the individual determination of the States.  Moreover, while a trial court may elect to give a specific mitigation instruction addressing proffered mitigation, this is not constitutionally required so long as the instructions given do not preclude a jury from considering in mitigating “any aspect of a defendant’s character or record and any of the circumstances of the offense.”  Given the Court’s observations in Franklin regarding the very real problems with finding that a defendant has a federal constitutional right to present evidence of residual doubt, i.e., that such a finding will lead to the inability to conduct re-sentencing trials upon remand, it seems dubious that such a federal right will emerge in the near future.

D.  Arizona Law

1.  Case Law

In State v. Pandeli, our supreme court stated that it “ha[s] not heretofore invoked residual doubt as a mitigating circumstance.” 200 Ariz. 365, 380 (2001), judgment vacated and remanded on other grounds at 536 U.S. 953 (2002).  The court has, however, referred to both “lingering” and “residual” doubt in its prior opinions.  Review of these cases in light of Pandeli makes evident that the court has, despite its inconsistent use of nomenclature, actually considered doubts in two contexts: first, where there were  claims of reasonable doubt concerning the defendant’s guilt; and second, where there were doubts about what weight to accord mitigating circumstances in light of the aggravating factors.

a.  Reasonable Doubts About Guilt

In State v. Atwood, 171 Ariz. 576, 653 (1992), the Arizona Supreme Court rejected a capital defendant’s claim that there were “lingering doubts” about his guilt and that the trial court failed to find those doubts as a mitigating circumstance.  In denying the claim, the Atwood court held that its review of the circumstantial evidence in the case demonstrated that the “jury’s verdict finding defendant guilty beyond a reasonable doubt [wa]s supported by sufficient evidence.”  171 Ariz. at 653.  Because of this fact, “the trial court properly refused to find lingering doubt to be a mitigating circumstance sufficiently substantial to call for leniency.”  Id.  In this context, the court was evidently using “lingering doubt” to describe a sentencing judge’s concern that the evidence did not prove the defendant to be guilty beyond a reasonable doubt.  Other cases support this conclusion.  See State v. Ring (I), 200 Ariz. 267 (2001) (“when a defendant is found guilty beyond a reasonable doubt, supported and unfounded claims of actual innocence do not constitute mitigation for sentencing purposes. Even if residual doubt is a mitigating circumstance, on this record we are left with no residual doubt about Defendant’s guilt”), reversed on other grounds at 536 U.S. 584 (2002); and see State v. Lehr, 201 Ariz. 509, 523 (2002) (court upholds trial judge’s finding that “lingering doubt as to the actual commission of the murder had not been proven by a preponderance of the evidence”), cert denied, 537 U.S. 1020 (2002); State v. Schackart, 190 Ariz. 238, 254 (1997) (“Once a person is found guilty beyond a reasonable doubt, unsupported claims of innocence do not constitute mitigation for sentencing purposes), cert. denied, 525 U.S. 862 (1998);  State v. Spears, 184 Ariz. 277, 295 (1996), cert. denied, 519 U.S. 967 (1996) (“[b]ecause . . . the jury’s verdict finding defendant guilty beyond a reasonable doubt [wa]s supported by very strong evidence, the trial court properly refused to find the non-statutory mitigating circumstance of residual doubt”); State v. Schad, 129 Ariz. 557, 573-74 (1981) (where “there was sufficient evidence to support the verdict,” there was “no merit in [a] defendant’s contention that there was doubt of guilt”), cert. denied, 455 U.S. 983 (1982).

b.  Doubts About the Weight of Mitigation

Many parties cite to State v. Rockwell, 161 Ariz. 5 (1989) and State v. Verdugo, 112 Ariz. 288 (1975), in support of the argument that the Arizona Supreme Court has reversed death sentences on findings of “residual doubt.”  This argument should be viewed cautiously.  As noted above, Rockwell involved misgivings regarding the weight to be given compelling mitigation when weighing it against aggravating circumstances.  When such “doubts” are present, the court concluded they should be resolved in favor of life.  See Rockwell, 161 Ariz. at 16; accord State v. Valencia, 132 Ariz. 248 (1982).  In Verdugo, the court addressed the sufficiency of the evidence to support the aggravating factor: grave risk to another.  Because there was an accomplice to the crime in Verdugo, and there was insufficient evidence to prove that the defendant rather than the accomplice committed the act supporting the found aggravator, the supreme court reversed the trial judge’s determination that this aggravator had been proven beyond a reasonable doubt.  The court did not consider the question of residual doubt of the defendant’s actual guilt.

This line of cases is the justification for presently instructing the jury that, “where there is a doubt whether the death sentence should be imposed, you should resolve that doubt in favor of a life sentence.”  See Rockwell, 161 Ariz. at 16.  Instructing the jury on lingering doubt is proper under Arizona law; however, the propriety of this instruction says nothing about the legitimacy of permitting evidence of, or providing an instruction on, residual doubt.

2.  Statute:  A.R.S. § 13-751.01

A.R.S. §§ 13-751.01(J)-(L) provide for the empanelling of new juries when either the aggravation phase jury, the penalty phase jury, or both of these juries, as originally constituted, are unable to reach verdicts.  Recently the Arizona Supreme Court rejected a challenge to this scheme, holding that this procedure neither violates due process nor subjects the defendant to double jeopardy by “thrust[ing] upon” the sentencing jury the issue of guilt, since the defendant is free to present at the later phase(s) any evidence introduced at an earlier phase.  State v. Frank Winfield Anderson, 210 Ariz. 327, 111P.3d 639 ( 2005).  Moreover, the court concluded, the defendant has no right, under the Arizona sentencing statute, to have the penalty phase jury reconsider issues of his guilt, so any argument that the newly empanelled sentencing jury would not give him the benefit of “residual doubt,” is without merit.  Id.

But knowing that the current sentencing statute does not preclude evidence and argument on residual doubt begs the question of whether a defendant has the right to present such evidence in the first place.  A.R.S. § 13-751(G) provides as follows:

The trier of fact shall consider as mitigating circumstances any factors proffered by the defendant or the state that are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense, including but limited to the following [list of five statutory factors].

The question remains, what does the phrase “any factors” that are “relevant” mean?

State v. Harrod (“I”), as conceded by most, did little to clear the waters on the issue of residual doubt in the face of A.R.S. § 13-751(G).  The actual holding in the case rests upon the conclusion that there was no actual residual doubt concerning Harrod’s guilt, so the claim that the trial judge had erroneously precluded residual doubt evidence because it was proffered only to create residual doubt, did not have to be addressed. 200 Ariz. 309, 317 (2001), judgment vacated and remanded on other grounds at 536 U.S. 953 (2002).  In dicta, Justice Martone made note of the two competing policy interests at play: (1) that precluding residual doubt evidence is essential to avoid permitting the penalty phase from “turn[ing] into an attack on the judgment of conviction itself” and “spawn[ing] a retrial on the guilt phase with the constraints imposed by the rules of evidence,” and (2) that permitting residual doubt evidence – and thereby effectively requiring a heightened certainty standard of guilt beyond all doubt - might be “more appropriate” for the imposition of the death penalty. [3]  Id. at 317, n. 7.  Justice Jones in his concurrence, and Justice Feldman in his special concurrence, each took one of these competing views.  Jones believed that the sentencing statute as written does not permit for the consideration of residual doubt as either a statutory or non-statutory factor, since residual doubt is not related to “any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense.Id. at 321 (quoting A.R.S. § 13-751(G) (emphasis in opinion)).  Feldman concluded that the statute’s reference to the terms “character,” “propensities” and “record” are only meant to identify obvious categories and that they do not occupy the entire field of relevant evidence. [4]  Id. at 322-24.[5]  And, Feldman believed, residual doubt was “relevant” to the circumstances of the offense.

A fair reading of A.R.S. § 13-751(G) reveals that any and all “relevant” evidence, irrespective of its link to a defendant’s character, propensities or record, should be admissible at the penalty phase of a capital trial.  Had the legislature intended to provide an exclusive list of mitigating considerations, it could have replaced the word “including” with the phrase “and that relate to.”

E.  Conclusions

This leads to the question unresolved by Harrod or Franklin: is residual doubt “relevant” evidence?  When A.R.S. § 13-751(G) is considered in conjunction with A.R.S. § 13-751.01(L), it is evident that “relevant” evidence cannot include evidence directed solely at proving that the defendant is not guilty of the crime. A.R.S. § 13-751.01(L) provides that a jury empanelled specially to hear a particular phase of a capital trial after the guilt phase has been completed cannot retry “the issue of the defendant’s guilt” at the prior phase.  And, aside from contravening the language of the sentencing statute, permitting such evidence in mitigation would undermine the very jury process that culminated in the verdict of guilt.  As noted by Justice Marshall in Burr v. Florida, “[t]o the extent that a jury recommendation of life based on doubt can be said to be inconsistent with that same jury’s finding of guilt, the legitimacy of the guilty verdict itself is rendered unreliable and therefore constitutionally suspect.  The remedy for such a defect is not a death sentence, but a new trial.”  474 U.S. 879, 882 (1985) (Marshall, J., dissenting).

Preclusion of evidence that the defendant is not actually guilty from the penalty phase, however, does not preclude exculpatory evidence where it relates to the circumstances of the crime or the aggravating or mitigating circumstances.  See A.R.S. § 13-751(G); and see State v. Teague, 897 S.W.2d 348, 252 (Tenn. 1995) (“[I]f the evidence relate[s] only to the legal issue of guilt or innocence, the issue resolved at the guilt phase of the trial, and d[oes] not relate to the circumstances of the crime or aggravating or mitigating circumstances, it [i]s not admissible”).  Such circumstances might include evidence that the defendant was not the person who actually killed the victim, or that the defendant did not take other alleged actions during the commission of the offense.  See Teague, 897 S.W.2d at 252-53.  Indeed, this was the outcome in Green v. Georgia, 442 U.S. 95 (1979), wherein the Supreme Court held that a trial court could not preclude from the capital sentencing phase the hearsay testimony of a state witness from a separate trial of a co-defendant, regarding that codefendant’s private confession that he was the actual shooter during the commission of the offense.  Such evidence was “highly relevant to a critical issue in the punishment phase,” because it supported defendant’s claim that he was a minor participant in the murder, and that he had been sent away on an “errand” during the time when his co-defendant shot and killed the victim.  Green, 442 U.S. at 97.  Such evidence would not have acquitted Green of the crimes, which involved the planned armed robbery of a convenience store, and the kidnapping, rape and murder of the store clerk.  See McGinnis v. Johnson, 181 F.3d 686, 692-93 (5th Cir. (Tex.) 1999) (defendant’s hearsay statements made to psychological expert not improperly excluded from penalty phase where statements were a recounting of events to show that defendant was actually innocent of the crime), cert. denied, 528 U.S. 1125 (2000); and see State v. Guzek, 86 P.3d 1106, 1131-36 (Gillette, J., concurring and dissenting) (characterizing the evidence in Green as showing “relative culpability for the crime” of murder which could have been under felony-murder theory, and describing  holding as a “species of ‘shocks-the-conscience’ opinion”), cert. granted (April 25, 2005).

Taking this together, judges should carefully consider the type of evidence proffered by a defendant at the penalty phase.  If evidence goes only to the issue of actual guilt, it is most likely not relevant.  If it is somehow exculpatory, even remotely, such as discussed above, it is likely relevant and admissible.  If the defense seeks to argue residual doubts to the jury, this is likely permissible under Franklin v. Lynaugh.  And finally, if the defendant seeks an instruction on lingering doubt, this should be treated apart from the issue of residual doubt and permitted under Rockwell.


[1]   Note   Justice Scalia’s concurring opinion vehemently disagrees with the Court’s inclusion of factor #3 and points out that the Court is “risk[ing] creating doubt where none should exist.”   Scalia warns that capital defendants “might now be tempted to argue that the amount of residual-doubt evidence carried over from the guilt phase in their sentencing hearings is insufficient to satisfy the Court’s third factor” and that “[e]very one of these ‘residual-doubt’ claims will be meritless in light of the Court’s first two factors.”  (emphasis in original).

[2]  The Arizona Supreme Court has often used the term “lingering doubt” to refer to doubt about whether the defendant is guilty beyond a reasonable doubt.  See State v. Atwood, 171 Ariz. 576, 653 (1992) (Defendant contends that “lingering doubt” exists as to his guilt….This contention has no merit.  Although the jury convicted defendant based on circumstantial evidence…we have found that the jury's verdict finding defendant guilty beyond a reasonable doubt is supported by sufficient evidence.”), cert. denied, 506 U.S. 1084 (1993).   This is more fully discussed below.

[3]  Justice McGregor concurred.

[4]  Justice Zlaket concurred with Feldman’s opinion.

[5]  The fact that state representatives have advanced bills that would add residual doubt as a mitigating factor to be considered in capital trials and that these bills have failed, does not evidence that the legislature did not intend at the time that it crafted A.R.S. § 13-751(G) to include residual doubt in mitigation.  This fact says little about whether the legislature ever considered the issue of residual doubt when it enacted the current version of §13-751(G), what the statute as currently written actually permits, or what mitigation must be allowed into evidence under our state and federal constitutions.  See Lockhart, supra.

 


RESIDUAL DOUBT/INNOCENCE
Pre-Pandeli & Harrod Cases

State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981)
The defendant argued on appeal that his conviction was largely due to the testimony of his wife whose hatred for the defendant was evident from her statements. Without further discussion, the Court stated that it did not find this contention to be a sufficiently mitigating factor.

State v. Jeffers ,135 Ariz. 404, 661 P.2d 1105 (1983)
Jeffers argued that the information given to the defense psychiatrist while Jeffers was under the influence of sodium amytal, which according to the doctor was consistent with Jeffers' innocence, was mitigating. The Court noted that although sodium amytal evidence is not admissible in Arizona courts, mitigation evidence need not meet the normal standards for admissibility. The psychiatrists for the defense and the state both agreed that under certain circumstances a sodium amytal interview can be reliable, but that sodium amytal is not a truth serum and people can lie and fabricate while under the influence of the drug. The trial court had this medical testimony before it, and after considering all the evidence, found no mitigating circumstances sufficiently substantial to call for leniency.

State v. McCall (McCall I), 139 Ariz. 147, 677 P.2d 920 (1983)
The defendant urged the trial court to consider in mitigation the testimony of Arnold Merrill. He testified regarding some of the aggravating circumstances. The defendant alleged that other witnesses had contradicted some of his testimony. The sentencing court did not find any such contradictions. The quality of the evidence at the defendant's trial was a proper consideration for the sentencing court. However, any contradictions that may have existed were not of such a magnitude that his testimony should not be considered in sentencing.

State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)
The defendant claimed that the gun accidentally discharged. The trial court did not find this to be a credible statement. The Court agreed with this analysis and conclusion.

State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)
The defendant claimed that the beyond a reasonable doubt standard does not require a jury to find that a defendant committed a crime beyond all doubt. He argues that the difference between absolute certainty and the beyond a reasonable doubt standard should be considered in mitigation in favor of defendants. The Court rejected this claim. No man may be convicted of a crime if there is reasonable doubt as to his guilt. The defendant argued that because he still maintains that he is innocent, that this is a mitigating circumstance. The trial court found that the defendant's refusal to acknowledge his guilt was to be held against him. The Court felt that a convicted defendant's refusal to publicly acknowledge his guilt is irrelevant to the sentencing determination. If a defendant admits his guilt and is truly remorseful, that can be mitigating evidence. The defendant argued that the state's main witness, Robert Dunbar, was so untrustworthy that the state ought not to execute anyone based on his testimony. The Court disagreed. The Court indicated that important aspects of Dunbar's testimony were corroborated by uncontradicted testimony. The jury found this testimony to be reliable and based on the record, the Court could not say that the jury's reliance was unjustified.

State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)
The defendant testified at the sentencing hearing that he was not in Arizona on the date of the murder and did not kill anyone. The Court noted that the jury found just the opposite to be true and that there was ample evidence to support the jury verdict. The claim of innocence was not a mitigating factor.

*State v. Rockwell, 161 Ariz. 5, 775 P.2d 1069 (1989)
Rockwell's background, together with his age at the time of the murder and the "unique circumstances of his conviction" caused the Court to conclude that a sentence of death was inappropriate in this case. Rockwell was convicted of murder for fatally shooting an employee at a truck stop. No weapon was discovered and there was very little evidence to assist the police in solving the crime. The murder was the subject of news stories in the local media. Approximately one year after the murder, Rockwell separately told his then girlfriend, his sister, his brother, and his sister-in-law that he and two others robbed a gas station in Kingman and shot the attendant. These witnesses testified that they had not believed Rockwell's admissions because he often told them stories of criminal exploits to create what he perceived to be a macho image. Rockwell was involved in a tragic motorcycle accident at the age of seventeen and had his right leg amputated. There were repeated references in the record to his difficulty in dealing with the loss of his leg and his need to compensate by projecting a macho image. Rockwell was indicted for the murder more than 7 ½ years after it was committed. The only evidence connecting him to the crime was the four confessions to his friends and relatives. Although the Court did not label the mitigating evidence in this case as "residual doubt" or "insufficiency of the evidence," the Court did find the "unique circumstances of [Rockwell's] conviction" as a mitigating circumstance.

State v. Serna (Serna I), 163 Ariz. 260, 787 P.2d 1056 (1990)
The defendant argued that he was innocent at his sentencing hearing. The trial court rejected this as not being sufficiently mitigating to grant leniency. The Court agreed with that assessment.

State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990)
The defendant argued that an anonymous letter claiming someone other than the defendant committed the murder was mitigating. The trial court was aware of the contents of the letter and defense counsel mentioned it at the sentencing hearing, but apparently the trial court refused to make it a part of the record on appeal because its contents "were not only unsubstantiated, but clearly false." The Court noted that the letter is analogous to a claim of innocence, and once a defendant is found guilty beyond a reasonable doubt, unfounded and unsupported claims of innocence do not constitute mitigation for sentencing purposes.

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
The defendant argued that because the cause of Mary's death was unknown, he should not be sentenced to death. The jury found that the defendant caused her death. Although the cause of a victim's death is relevant for aggravating circumstances, the Court found it irrelevant for purposes of determining mitigating circumstances. The defendant's claim of lingering doubt was without merit. Although the jury convicted the defendant based on circumstantial evidence and in part on the testimony of drug and alcohol abusers, the verdict was supported by sufficient evidence.

State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993)
The alibi evidence was the hearsay statement of a person who worked at a motel where the defendant claimed to have been staying the weekend of the murder. This statement was not admitted at trial. The statement goes to his guilt rather than to the propriety of the death sentence. This was not a mitigating circumstance.

State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)
The Court agreed with the trial court without discussion that any questions regarding the defendant's guilt were not proven as mitigating.

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

State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
The defendant argued for the first time on appeal that there was some residual doubt about his guilt. He claimed that it was mitigating that the state never performed DNA tests on some of the blood found at the murder scene that could have conclusively determined the question of his guilt. The Court rejected this claim. The state was not obligated to perform any particular tests, and upon review of the record, the Court found no residual doubt about the defendant's guilt.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Roger argued that a residual or lingering doubt existed regarding whether he actually participated in the homicides. The Court found no such doubt.

State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)
The jury's verdict finding the defendant guilty beyond a reasonable doubt was supported by very strong evidence. The trial court properly refused to find the nonstatutory mitigating circumstance of residual doubt.

State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)
The defendant argued that his conviction was based on circumstantial evidence in his sentencing memorandum. Because he did not offer any evidence or present witnesses, the Court agreed with the trial court that he did not prove the existence of any mitigation.

State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
The defendant raised the issue of residual doubt, but there was no merit to this contention in this case.

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
Once a person is found guilty beyond a reasonable doubt, unsupported claims of innocence do not constitute mitigation for sentencing purposes. Here, there was ample evidence to support the jury's verdict. The defendant's confession was bolstered by physical evidence. The defendant's claims of doubt were implausible and did not constitute mitigation.

State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
The trial court properly found that this had not been proven by a preponderance of the evidence. The defendant argued that the evidence against him came from paid informants who were unreliable. The jury found these persons credible.

State v. Harrod (I), 200 Ariz. 309, 26 P.3d 492 (2001)
All five justices agreed there was no lingering doubt that the defendant killed the victim. The Court concluded it "thus need not reach the question of whether residual doubt is a mitigating factor which the defendant must prove."

Nevertheless, two justices, the second joined by a third justice, wrote special concurrences to discuss the concept. Justice Jones wrote that consideration of residual doubt at sentencing does not fall within the permissible scope of A.R.S. §13-751(G), because that provision refers to "any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense."

In a separate special concurrence, Justice Feldman, with Justice Zlaket concurring, wrote that "it is time to make clear to the bench and bar that residual doubt is a mitigating factor." Justice Feldman reasoned that residual doubt should be considered, especially given the recent evidence showing wrongful convictions occur in capital cases. He also disagreed with Justice Jones, finding that the statute does not limit mitigation to evidence of the defendant’s character and circumstances of the offense, but only provides examples for the command to consider any factors relevant to sentencing. He concluded, "Residual doubt, properly defined, should be considered a substantial mitigating circumstance, and the court should say so."

State v. Ring (I), 200 Ariz. 1139, 25 P.3d 717 (2001)
The Court rejected the defendant’s claim that he was innocent. The evidence showed that the defendant not only shot the victim, but planned the murder and burglary, and attempted to avoid capture afterwards.

State v. (Julius Jarreau) Moore, 222 Ariz. 1, 213, P.3d 150 (2009)
The court rejected Moore’s argument that residual doubt was a mitigating factor, affirming its prior holding that once a person is found guilty beyond a reasonable doubt, claims of residual doubt or innocence do not constitute mitigation for sentencing purposes.


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