State v. (John Edward) Sansing, 206 Ariz. 232, 77 P.3d 70 (2003) (Ring)
Given the “shocking circumstances of this crime,” no reasonable jury could have given more than minimal weight to Sansing’s argument that he presents no future threat.

State v. (Brian Jeffrey) Dann, 220 Ariz. 351, 207 P.3d 604 (2009)
Defense expert testified that past significant violence, specifically a triple homicide, and drug abuse are indicators of future dangerousness. He also testified that protective factors, those that would decrease someone’s risk for future violence, include a sufficient IQ, social support, and involvement in a structured work environment while incarcerated.

Because the record also showed other acts of violence in Dann’s past, the court found Dann had not established lack of future dangerousness.

State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010)
The fact that Garcia will never be released from prison provides only minimal weight for mitigation purposes.

State v. (Scott Alan) Lehr (Lehr II), 227 Ariz. 140, 254 P.3d 379 (2011)
Lehr presented evidence to show that a natural life sentence would be a viable alternative to the death penalty because he has been sentenced to at least 716 years imprisonment for his non-capital convictions, he has been a well-behaved inmate with few disciplinary problems, and he poses little risk of violent conduct in prison. The Court gave all this mitigation little weight.

State v. Lynch (Lynch II), 238 Ariz. 84, 357 P.3d 119 (2015)
Lynch's low risk of misbehavior in prison and consecutive non-capital sentences were entitled to little value as mitigation. Lynch presented evidence that he would not be a danger to prison staff, inmates, or the general public if he received a life sentence. He also offered as mitigation his twenty-one-year sentence for the non-capital crimes that would run consecutively to the sentence he received for the first-degree murder.

In Escalante-Orozco, the Arizona Supreme Court held the Lynch instruction should have been given even though the state did not explicitly place the defendant’s future dangerousness at issue. The Court stated, “The prosecutor did not have to explicitly argue future dangerousness for it to be at issue; instead, it is sufficient if future dangerousness is “a logical inference from the evidence” or is “injected into the case through the State’s closing argument.” 241 Ariz. at ¶119 (quoting Kelly v. South Carolina, 534 U.S. 246, 252 (2002)). The Court noted that “[p]ast instances of violent behavior, however, can raise a strong implication of generalized...future dangerousness. …As recognized by the Court in Kelly, ‘[a] jury hearing evidence of a defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free ... as a parolee.’ Id. at 253–54.” Id. at ¶124 (some internal quotations and citations omitted). See, State v. Rushing, 243 Ariz. 212, 404 P.3d 240 (2017), cert. pet. docketed (2018); State v. Hulsey, 243 Ariz. 367, 408 P.3d 408 (2018); but see, State v. Sanders , --- P.3d ---, 2018 WL 4354906 (2018) (holding that the trial court did not error in failing to give a parole –eligibility instruction; as to this “non-stranger” encounter the State had not placed “future dangerousness” at issue; the Court considered (1) whether the circumstances surrounding [the] murder suggested that the death penalty was the only means to protect society; (2)whether evidence, extrinsic to the murder, showed the defendant’s propensity for violence; and (3) whether the State emphasized the brutality of the murder or the defendant’s propensity for violence.).

Lynch v. Arizona, --- S.Ct. ---, 2016 WL 3041088 (May 31, 2016) holds that a trial court cannot refuse to instruct the jury that a capital defendant is not eligible for parole where the State raised concern about the defendant’s “future dangerousness.” 

Lynch was sentenced to death by a judge for a 2001 murder.  Following Ring v. Arizona, his death sentence was vacated and his case remanded for resentencing.  He was again sentenced to death by a jury, but on appeal, the Arizona Supreme Court again vacated the sentence due to flawed jury instructions in the penalty phase.  Following a third penalty phase, a jury again sentenced Lynch to death.  He claimed on appeal, inter alia, that because the State had put his future dangerousness at issue, the trial court erred by refusing to instruct the jury that he was ineligible for parole and a life sentence was without possibility of parole.  The Arizona Supreme Court affirmed, holding that although Lynch was parole ineligible (because parole was abolished for crimes occurring on or after January 1, 1994), the requested instruction was an incorrect statement of the law because a life sentence could be with the possibility of release after 25 years rather than solely without the possibility of release.

The U.S. Supreme Court reversed, holding that Lynch was entitled to the instruction under Simmons v. South Carolina (“where a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole,” the Due Process Clause “entitles the defendant ‘to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.’).  The Court stated that “Simmons expressly rejected the argument that the possibility of clemency diminishes a capital defend­ant’s right to inform a jury of his parole ineligibility.”

Justice Thomas, joined by Justice Alito, dissented.  He stated that “[t]he trial court accurately told the jury that Lynch could receive a life sentence with or without the possibility of early release, and that should suffice.”


Upon request in a capital case where “future dangerousness” is an issue, the court should permit an instruction that informs the jury that the defendant is not eligible for parole.  One might argue that where the issue is leniency/life or death, “future dangerousness” is always at least implicitly at issue. And it can be argued that alleging the F2 aggravating factor (current or previous serious offense convictions) implicates “future dangerousness.”

Arizona statutes distinguish between “parole eligibility” and “release eligibility.” Although “parole-ineligibility” is not the same as “release-ineligibility,” the U.S. Supreme Court suggests that where only executive clemency is available, Simmons applies to either and the instruction must be given.


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