If the defendant shows “some impairment at the time of the offense,” he is entitled to an instruction on “substantial impairment” as a non-statutory mitigating circumstance, irrespective of whether he previously did or did not receive an instruction on impairment under G(1).  State v. Carreon, 210 Ariz 54¶¶ 75-80 (2005) (citing to State v. Gallego, 178 Ariz. 1, 17-18, 870 P.2d 1097, 113-14 (1994).

This circumstance considers the same criteria as that included in the (G)(1) statutory aggravator, significant impairment.  For a full discussion of mental/drug impairment, see the (G)(1) section.


State v. McCray, 218 Ariz. 252, 183 P.3d 503 (2008)
The defendant’s mental health problems were accorded little weight because he presented evidence only of an undiagnosed mental illness and failed to establish that it caused the crime or inhibited his ability to appreciate the wrongfulness of his conduct or conform his conduct to the law. He did not offer any expert testimony that he suffered from any mental illness, but only testimony from family and other witnesses about his behavior.

State v. Boggs, Steve, 218 Ariz. 325, 185 P.3d 111 (2008) Jury Sentencing/Indep. Review
Defendant's experts established he had post-traumatic stress disorder from a traumatic childhood and was bipolar.  A defense expert opined that the defendant may have been delusional at the time of the crime but was not in a manic state. A state's expert opined that the Defendant was not bipolar but exhibited characteristics of anti-social, narcissistic and borderline personality disorders.  The mental health problems were given less weight for two reasons: 1) there was no causal nexus between the problems and the crimes, and 2) the problems did not affect the ability to conform or appreciate the wrongfulness of his conduct. ¶89-¶91, ¶96.

State v. (Shad Daniel) Armstrong (Armstrong III) , 218 Ariz. 451, 189 P.3d 378 (2008)
Little weight given to diagnosis of bipolar disorder because no showing of a causal nexus to the crime.

State v. (Wayne Benoit) Prince, 226 Ariz. 516, 250 P.3d 1145 (2011)
The Court found Prince had failed to prove by a preponderance of the evidence the statutory mitigator of significant impairment (A.R.S. § 13-751(G)(1)) but had established his mental health as a non-statutory mitigator. However, it gave this mitigator little weight due to a lack of causal connection to the murder.

State v. (Trent Christopher) Benson, 232 Ariz. 452, 307 P.3d 19 (2013)
Non-statutory mitigating factors included “his difficult early childhood in South Korea, where he was found wandering on the streets before being placed in an orphanage, and evidence of [PTSD].”  Absent evidence as to how the PTSD related to his mental state at the time of the murders and the concession by defense experts that he knew right from wrong, the jury may have given the mitigation little weight.


State v. (John Edward) Sansing, 206 Ariz. 232, 77 P.3d 70 (2003) (Ring)
Drug Use:  Sansing was doing crack cocaine on the day of the murder.  But he failed to provide even a “rough estimate” of his level of intoxication.  He was capable to telephoning his wife and telling her that he was saving some crack for her when she returned from work.  His wife said that he was not “acting normal” when she arrived home, but she also testified that his actions were “thought out” and that he was not acting as if he were in a “trance.”  Sansing was able to call two churches in an attempt to lure his victim to the home in order to rob them.  While Sansing’s drug impairment qualified as a non-statutory mitigator, because Sansing failed to provide any expert testimony as to how his drug use was connected to his inability to control himself, no reasonable jury would have given this factor “more than minimal weight.”

State v. Murdaugh, 209 Ariz. 19, 97 P.3d 844 (2004) (Ring)
Drug Use (coupled with personality disorder) Murdaugh had an extensive history of methamphetamine use and had used crystal methamphetamine on the day of the murder.  The Supreme Court accorded this very little weight, since no expert found a “causal nexus” between this condition and the murder.  This analysis applied to the (G)(1) statutory factor as well.

State v. (Albert Martinez) Carreon, 210 Ariz. 54, 107 P.3d 900 (2005)
Drug Use.  Carreon claimed that he used drugs on the day of the murder.  The court found that there was some evidence that he had a history of drug abuse and that he might have been impaired when he was arrested on the following day.  But there was no evidence that he used drugs or alcohol on the night of the murder.  Therefore, this non-statutory mitigator did not apply.  Notably, this decision was made after the court found that the trial judge had not abused his discretion in precluding the defense’s mental health expert from testifying at the penalty phase, since Carreon had refused to submit to a State expert’s examination.

*State v. Bocharski, 218 Ariz. 476, 189 P.3d 403 (2008)
Alcohol abuse. The defendant’s parents and grandparents were severe alcoholics and he became an alcoholic at a very young age. His alcoholism, combined with depression, limited his ability to control and manage his feelings and reactions. Although the Court found this evidence did not establish the (G)(1) statutory mitigator, it did consider the evidence as a non-statutory mitigating circumstances.

State v. (Brian Jeffrey) Dann, 220 Ariz. 351, 207 P.3d 604 (2009)
Drug and alcohol abuse. Dann presented evidence that he suffered from poly substance abuse. Although he may have been drugs and/or alcohol when he committed the murders, due to his tolerance based on long-term use, his expert was unable to state whether this use affected his actions that night. The court found that the evidence did not support a finding that intoxication overwhelmed Dann’s ability to control his behavior, and gave this mitigation little weight.

State v. (Julius Jarreau) Moore, 222 Ariz. 1, 213 P.3d 150 (2009)
The court gave some weight to Moore’s addiction to crack cocaine as a mitigating factor.  Moore’s use of crack cocaine, combined with his relative youth and early-onset drug use, likely impacted his mental development.

State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010)
The Court gave minimal weight to Garcia’s drug addiction because he failed to tie it to the crime or to his mental functioning when the murder occurred.