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MINOR PARTICIPATION
A.R.S. §
13-751(G)(3) provides that it shall be a mitigating circumstance where
“[t]he defendant was legally accountable for the conduct of another
under the provisions of A.R.S. § 13-303, but his participation was
relatively minor, although not so minor as to constitute a defense to
prosecution.”
History: This circumstance was among
the original mitigating circumstances enacted by the Arizona
Legislature in 1973. It
encompasses situations in which the defendant’s responsibility for
the murder is sufficient to support conviction, but may nonetheless be
attenuated by the degree of his participation.
See Model Penal Code
§ 210.6 (1980).
(G)(3) Compared to the Enmund/Tison Finding
(status as “accomplice” versus threshold level of intent)
The issue of felony murder liability as a
mitigating circumstance is closely related to this mitigating factor,
and often both are asserted in cases where the murder conviction might
have been based on felony murder liability.
There are, however, some differences.
The (G)(3) circumstance applies only in accomplice liability
cases. By the statute’s
very language, the (G)(3) circumstance applies to instances where a
defendant is held legally accountable under A.R.S. § 13-303 for the
conduct of another. The
key issue is whether the defendant’s participation was relatively
minor vis-à-vis the other participants.
But felony murder liability may exist in cases
involving not only accomplices, but situations where a defendant was
the sole actor, making accomplice liability a non-issue.
In such cases, the evidence may establish only that the
defendant had the intent to commit a felony (e.g.
armed robbery or sexual assault), and in the course or furtherance of
committing the felony the defendant caused the death of the victim.
The potential mitigating value there lies in the possibility
that the defendant lacked the intent to kill, and not that the (G)(3)
mitigating circumstance applied.
The reason for this intertwining of (G)(3) and
felony murder issues is that, in 1973, at the time the (G)(3)
mitigating circumstance was enacted, the United States Supreme Court
had not yet issued its decisions in Enmund
v. Florida, 458 U.S. 782 (1982), and Tison
v. Arizona, 481 U.S. 137 (1987), which established a culpability
floor of “recklessly indifferent to human life” for capital
defendants who did not themselves kill the victim but were convicted
of felony murder for their actions.
Pursuant to Enmund/Tison, unless the trier of fact finds
that the defendant convicted of felony-murder acted with at least this
minimum level of intent, he cannot be subjected to the death penalty.
Therefore, the (G)(3) mitigating circumstance provided a means
for a sentencing court to find that a death sentence was not
appropriate for a relatively minor participant, who nonetheless was
held accountable for first-degree murder as an accomplice.
In today’s post-Enmund/Tison world, a
relatively minor participant often is excluded from death eligibility
on the basis of the Enmund/Tison
threshold finding.
(G)(3) Compared to the Felony-Murder
Non-Statutory Circumstance:
Although the Enmund/Tison
analysis may largely control the analysis of the (G)(3) mitigating
circumstance, the same may not be said about the use of the fact of
felony murder as a non-statutory mitigating circumstance.
For example, where a defendant’s conviction is based on
felony murder liability, but he was the sole actor and is not being
held accountable for the acts of another, the Enmund/Tison
standard is met because the defendant caused the death of the victim,
or “actually killed.” But
it is still possible that the defendant lacked the intent to kill,
which may be a mitigating circumstance.
Likewise, where death eligibility has been established by the
Enmund/Tison
standard in a case where the defendant did act with accomplices
but did not, himself kill, the felony murder circumstance can be
argued to show that he was not as bad as the accomplice who actually
killed. See
State
v. Henry, 189 Ariz. 542, 558, 944 P.2d 57 (1997).
MINOR
PARTICIPATION
State v. Greenawalt,
128 Ariz. 150, 624 P.2d 828 (1981)
There was no evidence from which the trial court could
determine that this defendant's involvement was relatively minor. The defendant argued
that there was no evidence of his actual participation and that this met his burden of
proof. The Lyons family and Theresa Tyson were shot in the desert for their automobile so
that it could be used by the defendant and his codefendants to escape the authorities
after their prison breakout. The Court noted that the burden of proof of mitigating
circumstances is not met by the lack of proof, but by the production of some evidence from
which it could be inferred that the defendant's participation was minor. The Court has
already rejected the contention that the state must assume the burden of proving the
nonexistence of mitigating circumstances.
State v. Ricky
Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
The Court
agreed with the trial court that Tison's participation in the murders was not relatively
minor. His participation in the crimes was substantial. Tison and his brother planned
their father's escape from prison for months. They gathered an arsenal of lethal weapons
that were used against others in the prison breakout. Those weapons later were used to
kidnap, rob and murder the victims. Tison and his brother stated that the murders were
actually committed by their father and Randy Greenawalt. Even so, Tison's participation up
to the moment of the firing of the fatal shots was substantially the same as that of the
father and Greenawalt. Although Tison's participation at the moment of firing may not have
equaled that of his father and Greenawalt, his standing and watching them, while armed
himself, cannot be characterized as relatively minor participation. The deaths would not
have occurred but for his participation.
State v.
Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
The
defendant argues his minor participation in the murders was mitigating. He joins with his
brother in arguing that neither of them was involved in the actual shooting of the
victims. Neither one intended the deaths of the victims. The Court notes that this is not
controlling as both brothers took part in the robbery and kidnapping, and assisted in the
detention of the victims while the murders were committed.
State v.
Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
The Court agreed with the
trial court that Smith's participation in the murder was not minor. The record supported
the trial court's finding that Smith was a major participant in the crime. Along with his
codefendant Lambright, Smith planned the murder, premeditated it, and consummated the act.
The Court found that Smith actually killed and intended to kill.
State v.
Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984)
The Court agreed with the
trial court that Libberton's participation in the crime was not minor. After beating the
victim, Libberton and his codefendant James agreed that the only thing to do was to kill
him. Libberton also agreed to hide the body in a mineshaft and pointed a gun at the victim
during the trip to the mineshaft. When the victim was struggling with James over the gun,
Libberton struck the victim with a rock. As the victim lay on the ground, Libberton
pointed and fired a gun at the victim's head from close range. He then slammed large rocks
into the victim's head, and finally, helped throw the victim into a mineshaft. These facts
establish beyond a reasonable doubt that Libberton intended to kill the victim and he was
a major participant in the crime.
State
v. Martinez-Villarreal, 145 Ariz. 441, 702 P.2d 670 (1985)
The defendant
claimed in his statements to the police that he acted only as a lookout and was forced to
drive the victim's truck. He said that someone else had gone berserk during the robbery of
the two men on the ranch. The jury rejected this in its verdict. The trial judge also
rejected this claim in his finding that the defendant intended to kill by himself or
through his companion. The defendant had bragged to a friend that he had killed because he
was very "macho."
State v. Correll,
148 Ariz. 468, 715 P.2d 721 (1986)
Correll argued that his participation in each
of the three murders was so minor as to warrant leniency. He argued that he had not
personally killed two of the victims and that he did not participate at all in the killing
of the third victim. The Court found that Correll intended that two of the victims be
killed, and he played a major role in those murders, even though he did not do the actual
killing. Regarding the third victim, the evidence established that Correll did not
actually kill or attempt to kill and there was insufficient evidence to support a finding
beyond a reasonable doubt that he intended to kill that victim. As a result, the Court
found the Enmund finding as to the third victim unsupported by the evidence and
modified that sentence to life imprisonment.
State
v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)
Washington
maintains that his participation in the crime was minor. However, the defendant gave a
post-arrest statement indicating that he was advised by Robinson prior to going to the
Hills' home that the mission was to steal cocaine and money from a drug trafficker and
that it might be necessary to kill the residents. The defendant carried a .38 caliber
handgun into the Hills' home, helped ransack it, and did nothing to prevent the killing of
Sterleen and the shooting of Ralph. This defendant was not a minor participant.
State v. White
(White I), 168 Ariz. 500, 815 P.2d 869 (1991)
There was no evidence that the
defendant's participation in the crime was minor.
State v. Salazar,
173 Ariz. 399, 844 P.2d 566 (1992)
The Court agreed with the trial court's
finding that Salazar was a major participant in the crime. Salazar testified that he left
the victim's house before the murder, which was committed by his codefendant. But physical
evidence negated Salazar's attempt to minimize his degree of participation in the crime.
Fresh scratches were observed on Salazar's chest shortly after the murder and Salazar's
fingerprints, in what appeared to be blood, were found in the house.
State
v. William Herrera, Sr., 176 Ariz. 9, 859 P.2d 119 (1993)
The
defendant's participation in the kidnapping and murder of Deputy Marconnet was
substantial. In its discussion of (F)(6), the Court reviewed the defendant's actions
during the crime. The defendant was actively engaged in causing the victim pain and
anguish. He participated with his sons in physically overpowering the victim, and forcing
him to lay on the ground unarmed. He intended to kill the victim by commanding his son to
shoot the victim. The Court found no error in the trial court's findings.
State
v. William Herrera, Jr., 176 Ariz. 21, 859 P.2d 131 (1993)
The defendant
argued that his participation in the murder was relatively minor and that it was a
mitigating circumstance under (G)(3). The Court disagreed, finding that he was not a minor
participant in these events. The defendant and his brother purposely attacked the officer
and disarmed him. The two of them together committed the aggravated robbery. After his
brother gained control of the gun and held it on the officer, the defendant shouted,
"shoot him" to encourage his brother to carry out the crime.
State v. Rudi
Apelt, 176 Ariz. 369, 861 P.2d 654 (1993)
The defendant alleges that his
participation in this crime was minor. On the contrary, his proposal of a secret marriage
to Annette shows that he and Michael were plotting, long before Cindy's murder, to find a
woman to marry one of them so they could insure her and kill her. In addition, his
reservation of a rental car with the large trunk in early December indicates that he was
in league with Michael. He and Anke played along with Michael that they had returned to
Germany and never interacted with the victim when in fact they saw Michael every day. The
defendant was convicted of conspiracy to commit murder. The Court cannot conclude that the
defendant's participation was minor.
The defendant's other mitigation arguments are variations
on this same theme. The defendant argued that he was under duress, he was convicted as an
accomplice and his participation was minor, he felt great remorse over his inability to
stop Michael from killing the victim, he had a good possibility of rehabilitation if
separated from Michael, and he had shown a great concern for others and had sporadically
attempted to thwart Michael's plans. All of these arguments, presented through the
testimony of the defense psychiatrist, revolve around his claim that he was Michael's
pawn, unaware of Michael's intentions until shortly before the murder and unable to resist
Michael's influence at that time. There is no evidence to support that other than the
testimony of the defendant.
State v. Maturana,
180 Ariz. 126, 882 P.2d 933 (1994)
The Court adopted the findings of the trial court that
the defendant's participation was not minor. Although the defendant was accountable for
the conduct of his codefendant, this defendant's participation was not minor. The
defendant's conduct and planning resulted in the victim's murder.
State v. Stokley,
182 Ariz. 505, 898 P.2d 454 (1995)
Stokley argued on appeal that the trial court
should have considered the (G)(3) mitigating circumstance, "given the overwhelming
possibility that the jury's guilty verdict was based upon the felony-murder theory."
But, as the Court noted, the trial court did not instruct the jury on felony murder, and
the jury found Stokley guilty of two counts of first degree premeditated murder. Stokley
brutally killed one victim and intended that the other one be killed. His actions were
substantial.
State
v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Roger
failed to show by a preponderance of the evidence that he was a minor participant in the
crimes. The trial court concluded that Roger and Robert acted in concert, considering the
footprint evidence, the fact that both defendants were armed at the time of arrest, and
that the victims suffered numerous bullet wounds from different weapons.
State v. Danny
Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
The defendant argued that
another individual participated in these crimes. This was not proven. See discussion
under duress section.
State v. Darrel
Lee, 185 Ariz. 549, 917 P.2d 692 (1996)
This claim was unconvincing and
contrary to the overwhelming weight of the evidence. This defendant and a codefendant
kidnapped, robbed and murdered the victim. The defendant actually hit the victim on the
head with a rock which fractured his skull.
State v. Hyde,
186 Ariz. 252, 921 P.2d 655 (1996)
The defendant was physically present at the Joyland
Market when the burglary and the murders occurred. He was an active participant. The jury
found him guilty of premeditated first degree murder. Minor participation was not proven.
State v. Dickens,
187 Ariz. 1, 926 P.2d 468 (1996)
The defendant argued that he was an accomplice and only a
minor participant in the murders. The Court rejected this argument and noted that it
believed that the defendant was a major participant in the crime. The robberies were
premeditated, planned on and agreed to by both the defendant and Amaral. The defendant
furnished the gun to Amaral or knew Amaral had the weapon with him for the robberies. The
defendant drove Amaral to the scene, picked him up after the crime, witnessed the
destruction of evidence and did not report the crimes. All of these facts indicate that
the defendant was a major participant.
*State v. Trostle,
191 Ariz. 4, 951 P.2d 869 (1997)
Although there was no proof that Trostle shot
and killed the victim, the evidence conclusively showed that he was a major participant in
the murder. Trostle's own statements to police supported a conclusion that he was not a
minor participant. He said that he intended to help steal the victim's truck and knew from
the beginning that its owner would likely be killed, that he tied the victim up and told
her to kneel prior to being shot, and that he kept her quiet in the desert when the
reservation police officer stopped to investigate. Trostle's claim that his role was minor
compared to the codefendant's failed to qualify as mitigating circumstance under A.R.S.
§13-751(G)(3), or as nonstatutory mitigation.
State v.
Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
The
defendant argues 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.
State v. Robert
Jones,
197 Ariz. 290, 4 P.3d 345 (2000)
The defendant argued that the primary
evidence against him at trial came from unreliable witnesses. He argues
that it is possible that his codefendant did all the killings and blamed
it on the defendant. The Court agreed with the trial court that (G)(3) had
not been proven as surviving witnesses at the Moon Smoke Shop testified
that the two suspects were shooting at different times in different
places. The jury found sufficient credible evidence to convict the
defendant. The defendant was not a minor participant in these murders.
State v.
Hoskins,
199 Ariz. 127, 14 P.3d 997 (2000)
The defendant was a major participant in
the murder. The jury found him guilty of premeditated murder. There was no
evidence in the record that his participation was minor.
State
v. Ring, 200 Ariz. 1139, 25
P.3d 717 (2001)
The Court agreed with the trial
court that the defendant was the shooter and major participant in the crime.
The circumstance, however, is inapplicable because the defendant claimed to
have not participated in the crime at all.
State
v. Harrod, 200 Ariz. 309, 26
P.3d 492 (2001)
Because of evidence proving the
defendant was the contract killer of a wealthy heiress, there was no evidence
to support this factor.
State v. Phillips,
202 Ariz. 427, 46 P.3d 1048 (2002)
The defendant initiated the robbery/murder by opening fire
into a bar full of customers. In response, two patrons tried to flee, but the
co-defendant shot and killed one of them. Because defendant’s conduct
recklessly endangered human life, he failed to prove minor participation.
State
v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
The
defendant’s participation was not minor. She planned the murder of her mother-in-law to gain access to her trust
and annuity, hired the killers, gave them money for gloves, a key and a ride to
the victim’s apartment, and waited for them to return.
State v. (Frank Winfield) Anderson,
210 Ariz. 327, 111 P.3d 369 (2005) Jury Trial/Indep. Review
Given Anderson’s “substantial role in each of the murders,” the court rejected the
characterization of his participation as “minor.”
State v.
(Patrick Wade) Bearup, 2009 WL 2060231__ Ariz. __, __ P.3d __
(July 17, 2009)
Although Bearup did not strike the death blows, the evidence showed
that he was not a minor participant in the crimes.
State v. (Alfredo Lucero) Garcia, 224 Ariz. 1,
226 P.3d 370 (2010)
Garcia failed to establish this statutory mitigator because
circumstantial evidence established that he was actively involved in
the murder.
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