Capital Sentencing Guide

VICTIM'S ACTIONS

VICTIM'S ACTIONS

[This category contains cases where some action on the victim's part was argued as mitigating. It does not include cases where the defendant argued that there was insufficient evidence to support his conviction. For those cases, see the residual doubt/innocence section. See also duress section for cases arguing that the victim was the initial aggressor.]

State v. Sylvester Smith, 125 Ariz. 412, 610 P.2d 46 (1980)
The trial court did not find sufficient evidence to prove self-defense despite the defendant's detailed testimony regarding his activities, thoughts and actions on the night of the crime. The Court stated that it agreed that the trial court was not compelled to find as a mitigating factor that the defendant was acting in self-defense or fear. The evidence was overwhelming that no such mitigating circumstance existed. The facts were that an argument started at a party between the defendant and the victim. The victim made threats to the defendant and his friend. The defendant and his friend left the party, went to the defendant's apartment and both armed themselves. They returned to the party and threatened the victim. The victim went outside his apartment to talk to the defendant and was shot by the defendant. The defendant testified that he thought the victim had a gun and that the victim tried to jump him. The defendant's friend testified that the victim did not threaten them with a gun and he had no reason to believe that the victim had a gun.

*State v. Watson (Watson III), 129 Ariz. 60, 628 P.2d 943 (1981)
The evidence supported a finding that the victim shot first twice. Together with other mitigation, this was sufficient to overcome the aggravating circumstances. For a discussion of the facts, see Watson I.

State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981)
The defendant argued as mitigation on appeal that the crime was a classic lover's triangle, an emotionally unstable situation and that the victim was in immediate control of a knife at the time of his death. Although the jury rejected the defendant's claim of self-defense, the defendant argued that the evidence supported a conclusion that the victim was a violent person and before his death had violent altercations with several men while armed with a knife. Without further discussion, the Court stated that these contentions did not "constitute sufficiently mitigating factors."

State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983)
The defendant argued that his stormy love-hate relationship with the victim raised a classic provocation situation and that the crime was one induced by the heat of passion. But there was nothing in the record indicating an argument or that the crime was induced by the heat of passion. Several months before the murder, Jeffers learned the victim may have been an informant against him. One week prior to the murder, Jeffers met with the victim and discussed the possibility she had been an informant against him. The victim also advised him that she was now a prostitute and would charge for her favors, but Jeffers testified that he had accepted the situation and was not angry. The Court concluded that even if the victim's actions were sufficient to constitute adequate provocation, there was sufficient time between the provocation and the crime for passions to "cool." The Court agreed with the trial court's finding that Jeffers may have had some reason to be provoked and was under some stress, but "nothing more."

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
The victim had engaged in an illegal act of prostitution with Rebecca Corella near the time of the murder and solicited an act of prostitution with minor Faith Erwin also. The Court made no clear determination of this proffered mitigation, but merely recounted what the trial court did and upheld the sentence.

State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984)
Chaney's claim that not harming the other victims constituted a mitigating circumstance was, in this case, without merit. Each of the other victims was sure that Chaney was about to kill. One victim testified that he waited, as Chaney stood behind him, to hear the rifle and feel the bullet tear into his flesh. Terrorizing victims cannot be considered a mitigating circumstance.

*State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)
The Court found this to be a factor to be considered in mitigation. The defendant argued that the victim had a gun, fired a warning shot at the defendant, threatened the defendant, and may have fired a shot first, causing the defendant to believe that he had to shoot to save his own life. This has previously been considered a mitigating circumstance. Ms. Manross testified that the victim jumped out of the car armed with a gun, fired off a warning shot, and yelled at the defendant. The 911 call indicated that the victim threatened the defendant several times. The victim leveled his gun at the defendant, began to approach and told the defendant to come out before the shots rang out. She told the emergency operator that the victim was excited and had been drinking. It is unclear from the record who shot first. However, from the record is apparent that it was reasonable for the defendant to have felt that his life was in danger. The defendant was indicted and convicted only on felony murder and not premeditated murder. This lent some support to a conclusion that the defendant did not specifically intend to kill.

State v. Barry Jones, 188 Ariz. 388, 937 P.2d 310 (1997)
The defendant argued that the victim's mother was largely responsible for the child's suffering because she did not take the child to the hospital. This attempt to transfer responsibility for the four-year-old child's death to the mother was without merit. The defendant was with the victim for the balance of the evening after he assaulted her. He told others that he had taken the child to the paramedics who said she was fine. He not only did not take the child to the hospital, but also dissuaded others from doing so. Even though Rachel was not his biological child, he had a duty to take her to the hospital.

State v. (Wendi Elizabeth) Andriano, 215 Ariz. 497, 161 P.3d 540 (July 9, 2007)
The defendant presented some evidence that she was a domestic violence victim and may have been sexually abused in her childhood. The court found this mitigation did not warrant substantial weight because the evidence established that Andriano did not kill her husband while defending against a domestic violence attack, and the alleged sexual abuse was remote in time and thus minimally relevant.

State v. (Cody James) Martinez, 218 Ariz. 421, 189 P.3d 348 (2008) Jury Trial/Abuse of Discretion Review
The defendant’s attack on the victim’s supposed contributory conduct was viewed by the Court as a not compelling mitigating factor. The jury did not abuse its discretion in finding this evidence not sufficiently substantial to call for leniency. ¶¶74-75.


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