[This is a catch-all category for cases that do not fit within the other categories. It appears that the arguments presented here were only presented in that particular case and have not been repeated in other cases. Some of these arguments are specific to the particular case. Others argue more generally about the cost or efficacy of the death penalty.]
State v. Arnett (Arnett II),125 Ariz. 201, 608 P.2d 778 (1980)
Did not kill earlier
The trial judge noted that the defendant had refrained from killing a security guard when he was arrested in California. This, among other things, was insufficient to call for leniency. The Court agreed with this assessment.
State v. Vickers (Vickers I (Ponciano murder)) , 129 Ariz. 506, 633 P.2d 315 (1981)
Responsibility of prison officials
The defendant argued that prison officials bear some responsibility for the murder of his cellmate because they were aware of his history of violence and still housed the defendant with the victim. He further argued that this created a situation in which a murder could occur. The Court found that while the prison officials may have known of the danger the defendant posed, there was also evidence that both the defendant and the victim independently requested to be cellmates. The Court did not believe that this constituted a mitigating circumstance.
State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1982)
Length of jury deliberations
The Court noted that the trial court found that the length of the jury deliberations was not a mitigating circumstance under the facts of this case. Without further discussion, the Court concluded that the defendant's mitigation evidence was not sufficiently substantial to call for leniency.
State v. Adamson (Adamson II), 136 Ariz. 250, 665 P.2d 972 (1983)
Length of legal proceedings
The defendant asked the Court to consider the length of the legal proceedings from inception in mitigation. The Court did consider it in mitigation, but found that it was not sufficiently substantial to call for leniency.
State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)
Conducted survey of death-row inmates to determine why some people kill
This was found to be immaterial, and if mitigating, was not given much weight. The defendant conducted a survey of other death-row inmates to determine what makes some people kill. The defendant indicated he did not know why he was working on this survey. The state successfully showed that this survey was not the result of genuine interest. No adequate evidence was produced which would indicate that the survey would be useful.
Writes poetry, fiction and paints
The Court mentioned that the defendant argued that the fact that he writes poetry, fiction and paints as mitigating evidence. The Court, however, did not discuss this in its evaluation of the mitigating evidence.
State v. Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)
Opposition to the death penalty
After noting that defense counsel argued at sentencing that the death penalty was immoral, the Court stated that the defendant's opposition to the death penalty "is not a mitigating circumstance sufficiently substantial to outweigh the aggravating circumstances."
State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)
Circumstances surrounding prior convictions
The defendant had two prior convictions for murder. He argued that there were mitigating circumstances surrounding both convictions. The key witness in the first trial has allegedly recanted, and the second conviction for felony murder is based only on his participation in a prison escape, not in the actual killing. Although these factors were not insignificant, they did not rise to the level of mitigation. These two convictions warrant aggravation, not mitigation.
*State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)
No plea offer made that would have excluded the death penalty
The defendant proffered the fact that the state refused to make a plea offer that would have excluded the possibility of the death penalty as mitigation. The Court noted this, but did not discuss it.
State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
Not causing his prior felonies
The defendant argued that his prior felonies were the result of drug abuse, his being molested as a minor, and his relationship with his parents. The trial court properly found that these were not mitigating circumstances. The Court previously addressed the defendant's drug use and his concern for his parents. Being molested as a minor did not justify, excuse or otherwise mitigate his crimes here. The remedy for being molested is not to molest others and ask to be excused, but rather to submit to therapy which the defendant has repeatedly failed to do.
State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
Germany does not have the death penalty
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. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)
Although there was testimony that the defendant cared for the child victim at times, the defendant's "actions and participation in his murder speak volumes to that."
State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)
The Court agreed with the trial court without discussion that the defendant's gender was not proven as mitigating.
State v. Hinchey (Hinchey II), 181 Ariz. 307, 890 P.2d 602 (1995)
Jury foreman's affidavit
Upon defense counsel's request, the jury foreman signed an affidavit stating that the defendant did not deserve the death penalty. The trial court could reasonably have found that the affidavit was not mitigating because a person who did not attend the aggravation/mitigation hearing wrote it.
Original life sentence
The defendant originally plead guilty in exchange for receiving a life sentence, but later withdrew from this plea. After trial and conviction, he was sentenced to death. He now argued that his original life sentence should be considered a nonstatutory mitigating circumstance. The Court disagreed. Because the life sentence resulted from a plea agreement and not from a weighing of all the relevant facts of the case, the sentence was not mitigating.
State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Disproportionality of the death penalty
The trial court correctly held that "the claimed right to leniency in the context of the harshness and disproportionality of the death penalty is not a mitigating circumstance."
State v. Aryon Williams, 183 Ariz.368, 904 P.2d 437 (1995)
The defendant argued that his race, as an African-American, should be a mitigating factor. The Court rejected race as a mitigating circumstance.
State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)
The defendant argues that the 40 minute delay by the police in entering the hotel room was negligent and should be considered as a nonstatutory mitigating factor because the victim may have lived if the police had entered the room earlier. While a court must consider any aspect of the defendant's character and record and any of the circumstances of the offense in mitigation, the police delay in this case is not relevant to a circumstance of the offense or to any aspect of the defendant's character or record. No evidence existed in the record that if the police had acted more quickly that the victim would have been alive. She was already dead when the paramedics arrived. The victim died because the defendant strangled her, not because the police delayed in entering the room.
State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
Economic cost of death penalty
The Court disagreed with the resentencing court that the economic cost of seeking the death penalty as opposed to a life sentence was mitigating. This was unrelated to the defendant's character or record, or to the circumstances of the crime. The cost/benefit analysis of the death penalty is a legislative decision initially, and later a decision made by the state.
The defendant as the victim of codefendant Langston
The defendant argued that the fact that codefendant Langston was the mastermind of the killing should be a nonstatutory mitigating factor. The Court was not persuaded that this fact is mitigating. See discussion under duress.
Length of time on death row
The defendant has been sentenced to death for 18 years. He argued that this is mitigating because he has a mental illness and the other two participants have not had to face execution for this period of time. These facts are unrelated to the defendant's character, record or the circumstances of the murder. The Court rejected this as mitigation.
State v. White (White II), 194 Ariz. 344, 982 P.2d 819 (1999)
The defendant asked the trial court to find the murder to be aberrant behavior by the defendant and pointed to his lack of a prior felony record or any record of violent behavior. The absence of such a record may be mitigating. The trial judge in both sentencings, however, considered that. The Ninth Circuit created the aberrant behavior concept as an exception to the federal sentencing guidelines. The doctrine has been applied in cases that would result in a fundamentally unfair sentence, but not in a capital case. Even if this were to be considered a mitigator, the defendant's behavior in this case would not qualify as aberrant behavior. Looking to the federal cases, the lack of a criminal record is not synonymous with aberrant behavior. See general discussions of good character, and criminal history for similar topics.
The defendant argues that the Yavapai County Attorney's Office, as a matter of policy, seeks the death penalty in all first degree murder cases where at least one aggravating factor exists. The defendant contended that this policy violated the Eighth and Fourteenth Amendments to the U.S. Constitution. The Court disagreed and further found that this policy, even if it were erroneous, would not rise to the level of fundamental error. The Court was asked to consider this policy as nonstatutory mitigation by the defendant. The Court noted only that it had previously addressed this matter.
State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999)
High cost of execution
The high cost of execution as opposed to life imprisonment is not a mitigating circumstance. This was a legislative choice made by the people's representatives regarding the level of punishment for Arizona's most serious offenders and transcends a financial cost/benefit analysis. The United States Supreme Court has determined that nothing in the Constitution forbids states from making this choice as long as constitutional requirements are met. This does not relate to the defendant's character, propensities, record or the circumstances of the offense.
Ability to contribute to society
The defendant's ability to contribute to society is not a mitigating factor that addresses his character, propensities, record or the circumstances of the offense. The Court here agreed with the trial court that this was not a mitigating circumstance.
State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
Motivated by need for money to be used to gain custody of children
State v. Murdaugh, 209 Ariz. 19, 97 P.3d 844 (2004) (Ring)
Pled guilty to avoid inflicting pain on family and victim’s family.
This received little weight in light of the strength of the aggravators (F)(1) & (F(6).
State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111P.3d 639 (2005) Jury Trial/Indep. Review
Christian Ministry Aiding Inmates
There was evidence that Anderson had made efforts to assist fellow inmates through his Christian ministry. Laudable, but insufficient to call for leniency.
State v. (Patrick Wade) Bearup, 221 Ariz. 163, 211 P.3d 684 (2009)
Bearup’s decision to not present mitigating evidence at the penalty phase of trial was not a mitigating circumstance.
State v. (Edward James) Rose, 231 Ariz. 500, 297 P.3d 906 (2013)
Mitigation included evidence of alleged mental health problems, multiple head injuries, drug and alcohol addiction, low IQ, methamphetamine use in the days before the murder, and emotional neglect. Although defendant characterized mitigation as “overwhelming [such that] a death sentence is not justified by the evidence,” the State rebutted much of the mitigation. The Court upheld the jury’s finding that leniency was not warranted.
State v. (Eric Deon) Boyston, 231 Ariz. 539, 298 P.3d 887 (2013)
Boyston alleged thirty-four mitigating circumstances, including diminished mental capacity, troubled family background, PCP intoxication, love and support of his family, impact of execution on his family, and remorse. The State presented evidence to rebut many of those mitigating factors. The jury did not find the proffered mitigation sufficiently substantial to call for leniency.The Supreme Court held that the jury did not abuse its discretion in concluding that leniency was not warranted.
State v. (Robert) Hernandez, 232 Ariz. 313, 305 P.3d 378 (2013)
Perhaps considered as non-statutory mitigating factors, defendant also explained his motive, his criminal history, and his religious conversion.
State v. (Christopher Mathew) Payne, 233 Ariz. 484, 314 P.3d 1239 (2013)
Defendant’s mitigation evidence included several risk factors for becoming an abuser; “insufficient protective factors” to help him parent appropriately; a difficult childhood, lack of family support, substance abuse, lack of felony criminal history, and the inability to appreciate the wrongfulness of his conduct. The State rebutted some mitigators and questioned the weight to be given others.(Penalty Phase Rebuttal Evidence) Where the trial court limited criminal history evidence to eliminate details that would cause undue prejudice, defendant’s criminal history was properly admitted to rebut his claim that “risk factors” made him a poor parent.
To rebut defendant’s claim that he was a caring person, the State showed a DVD of a jailhouse visit where defendant was berating his father and family members for not caring for his living son. Although “marginally probative,” the DVD also demonstrated that he did care about his son.
State v. (Efren) Medina, 232 Ariz. 391, 306 P.3d 48 (2013)
Gang affiliation was not a mitigating factor. Other proffered mitigation, including his rehabilitation as an artist; posing no future threat; disparity in sentence compared to (less-culpable) co-defendant; family support received minimal weight; and remorse were given little weight.
State v. Stephen Douglas Reeves, 233 Ariz. 182, 310 P.3d 970 (2013)
“During the penalty phase, Reeves allocuted and apologized for the pain he had caused the victim and her family. As both a statutory and non-statutory mitigating circumstance, he presented evidence in support of his claim that he was intoxicated from drugs and alcohol at the time of the murder. As additional mitigating factors, Reeves offered evidence to support allegations that (1) he suffers from a longstanding substance abuse disorder, (2) he has a co-occurring mental disorder, (3) his conditions are treatable, (4) his parents abused alcohol, (5) he was emotionally abused and neglected as a child, (6) he had made positive contributions to the community through his previous military service and work as an electrician, (7) he behaved well while incarcerated, (8) he was remorseful, and (9) he loves and is loved by his family.
In rebuttal, the State offered evidence to dispute many of the claimed mitigating circumstances, including Reeves's alleged intoxication, mental condition, and remorse, and it urged the jurors to give little weight to any mitigation.”
State v. Israel Joseph Naranjo, 234 Ariz. 233, 321 P.3d 398 (2014)
In mitigation, defendant offered evidence of intellectual disability, mental illness, and difficult upbringing and argued that a life sentence would protect the public. The State cross-examined and rebutted each. The jury’s conclusion that mitigation was not sufficiently substantial to call for leniency was not an abuse of discretion.
State v. Burns, 237 Ariz. 1, 344 P.3d 303 (2015)
During the penalty phase, Burns presented mitigation evidence regarding his difficult childhood, his dysfunctional family, his diagnosed learning disabilities, his impulsivity, the personality disorders from which he suffered, and whether he would be able to be safely housed in prison while serving a life sentence.
NOTE: Not sentencing the defendant on the kidnapping, sexual assault, and misconduct involving weapons convictions before the jury returned a sentence for the first-degree murder conviction prevents the defendant from arguing to the jury at the penalty phase that any consecutive sentence on the non-capital counts imposed would effectively require that he spend the rest of his life in prison, this argument is irrelevant as a mitigating factor.
State v. Michael Carlson, 237 Ariz. 381, 351 P.3d 1079
The jury also considered mitigation evidence, which included that Carlson had a difficult childhood and suffered several mental-health crises, lacked support systems, did not premeditate his crime, felt remorse, had a protective nature, and did not pose a risk of future dangerousness in prison. The jury’s conclusion that mitigation was not sufficiently substantial to call for leniency was not an abuse of discretion.
State v. Andre Michael Leteve, 237 Ariz. 516, 354 P.3d 393 (2015), cert. denied, 136 S. Ct. 898 (2016).
Defendant presented extensive mitigation evidence, including that he was thirty-nine years old at the time of the murders; his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was substantially impaired; he was a good father and son and tried to be a good husband and a good provider for his family; he was a good friend and employee; he suffered from alcoholism; he suffered from bipolar disorder and other mental illnesses and did not receive proper treatment; he self-medicated with drugs and alcohol; he was devastated by the collapse of his marriage; he lacked support from his family; he suffered financial ruin, overwhelming stress, and abuse and neglect as a child; he tried to make the best of his life; he was a good student and consistently tried to improve himself; and he lacked a positive male role model.
Prison expert’s testimony – The trial court precluded in the penalty phase the testimony by Carson Williams, a former warden in the Department of Corrections, that Leteve would have a very difficult time in prison because he was a child-killer. The Supreme Court found this speculative evidence did not constitute a mitigating circumstance and therefore the trial court did not abuse its discretion by precluding it.
State v. Vincent Joseph Guarino, 238 Ariz. 437, 362 P.3d 484 (2015)
The defendant presented mitigation evidence, that included his age, mental illness, severe cognitive impairment, low IQ, dysfunctional family background, drug abuse, genetic propensity for drug addiction, genetic propensity for mental illness, lack of future dangerousness, good behavior during pretrial incarceration, love of family, good conduct during the trial, and ability to adapt to a prison environment. The defendant also presented evidence that he had been the victim of bullying, had suffered a personal tragedy, and had acted under the influence of his brother and other members of the Aryan Brotherhood.
The Court determined that much of the defendant’s presented mitigation could reasonably be given little weight by jurors or was heavily rebutted by the State. Thus, reasonable jurors might conclude, in light of the four aggravating circumstances, that the evidence was insufficient to warrant leniency, despite the mitigation evidence presented.
State v. (Mark) Goudeau, 239 Ariz. 421, 372 P.3d 945 (2016)
During trial, the defendant presented limited mitigation evidence through his mental health expert that he suffered from adverse developmental factors that affected his culpability, including “probable fetal alcohol exposure,” learning disorders, genetic predisposition to substance abuse and psychological disorders, neglect, inadequate supervision, and exposure to community violence and drug abuse. The expert further opined that the defendant would not pose a danger in prison.
On cross-examination, the State elicited evidence to rebut the alleged mitigating factors.
State v. (Jasper) Rushing, 243 Ariz. 212, 404 P.3d 240 (2017)
Rushing presented mitigation evidence that he suffered from “bipolar mood disorder,” “unspecified trauma and stressor-related disorder,” “attention deficit hyperactivity disorder,” drug-related disorders, and “unspecified personality disorder with antisocial traits.” He also offered evidence that his childhood was “extremely chaotic and filled with turmoil,” and that he suffered from posttraumatic stress disorder (PTSD) resulting from being sexually abused during childhood. He also presented evidence connecting his mitigation evidence to the murder: that he “just went crazy” and killed him. Dr. Grassian concluded that Rushing “snapped” as “happens to people with bipolar mood disorder, people in solitary confinement, [and] people with PTSD.” Dr. Jon Conte, an expert on child abuse, related similar testimony. He opined that Rushing was an “untreated victim” of child abuse who lacked the skills to refrain from “acting out” when confronted with distressing circumstances.
On the other hand, the State cross-examined the expert witnesses and discredited some of their assertions. And the jury may have concluded that Rushing had lied to his experts about being driven to kill Shannon by the latter’s talk about sex with children. The murder was committed in a disturbing manner and, at the time of the offense, Rushing was imprisoned for a different murder. Even if we assume that Rushing proved all his mitigating circumstances, we cannot find that the jury abused its discretion because a reasonable juror could have concluded that the mitigation was not sufficiently substantial to warrant leniency.
State v. (Bryan Wayne) Hulsey, 243 Ariz. 367, 408 P.3d 408 (2018)
The Court outlined the substantial mitigation evidence presented by Hulsey that included “evidence of mental illness and brain damage, his early childhood in a dysfunctional home, his father’s drug use, the transfer of guardianship to his cruel grandmother, then a transfer to his father’s strict household where he was physically abused.” Additionally, multiple family members also testified, and Hulsey presented evidence about his ability to function in a structured prison environment.
The State in closing called into question whether Hulsey’s difficult childhood was still having an effect on him, as he was thirty-three when he shot Officer Holly. The prosecutor also reminded the jury about Hulsey’s past instances of violence, rebutted his evidence of good behavior in prison, and stated that his mental tests showed he had an above-average IQ. The Court found “even if we assume that each juror accepted all of the mitigating factors identified by Hulsey, a juror could reasonably have concluded they were not sufficiently substantial to warrant leniency.”
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