holding that, even assuming the trial court erred in precluding a defendant’s hearsay statements that he was drunk and did not intend to kill the victim, the error was harmless because the statements were “merely cumulative” to other trial testimony
How later courts described this case
- holding that, even assuming the trial court erred in precluding a defendant’s hearsay statements that he was drunk and did not intend to kill the victim, the error was harmless because the statements were “merely cumulative” to other trial testimony
- approving without comment jury instruction that “crime of sexual conduct with a minor under age fifteen requires proof of the following two things: (1) The defendant knowingly penetrated the anus of another person with a part of his body; and (2) the other person had not reached her fifteenth birthday”
- Stating, without citing Gendron, that “a trial judge’s failure to give an instruction sua sponte provides grounds for reversal only if such failure is fundamental error.”
- finding (F)(9) aggravating factor where defendant was tried as an adult and the victim was younger than 15
Written by the judges who cited it.
The opinion
MARTONE, Justice,
dissenting in part.
I do not agree that we must remand for resentencing. The trial judge “considered and weighed each of the mitigating circumstances offered by the defendant.” Special verdict at 10. This included all of the impairment evidence. The defendant argued it as a statutory mitigating circumstance, and did not argue it as a non-statutory mitigating circumstance below or on appeal. While a judge must consider all relevant mitigating evidence offered by the defendant, he did so here. The judge need not refer to arguments the defendant does not make. In State v. Lopez, 175 Ariz. 407 , 857 P.2d 1261 (1993), we specifically said:
The burden of proving mitigation is on the defendant, A.R.S. § 13—703(C), and the duty to call such evidence to the court’s attention also is on the defendant.
Id. at 415-16, 857 P.2d at 1269-70 . We also said that “the defendant did not argue in the trial court what he argues here, i.e., that the trial court should expressly consider the intoxication evidence as mitigation even if it fell short of statutory mitigation.” Id. at 416 , 857 P.2d at 1270 .
State v. Watson, 120 Ariz. 441, 445 , 586 P.2d 1253, 1257 (1978), is not to the contrary. It just holds that a defendant has a right to present non-statutory mitigating evidence. It does not hold that in addition to considering such evidence, the court must also consider it again in a category not argued by the defendant. State v. McMurtrey, 136 Ariz. 93, 102 , 664 P.2d 637, 646 (1983) contains *24 dicta which can be read to support the court’s decision here today. But I read McMurtrey more narrowly. I see it as a case suggesting remand where a trial judge in fact does not consider the mitigating evidence offered. But here, the trial judge specifically said that he considered and weighed “each of the mitigating circumstances offered by the defendant.” Special verdict at 10. In addition, the trial judge said “each aggravating circumstance standing alone outweighs the total mitigation.” Special verdict at 11.
It is, thus, a triumph of form over substance to remand this case to the trial judge to consider already considered evidence under the rubric of a non-statutory argument. The result should not change. We serve no purpose but to extend the delay that has become the hallmark of capital sentencing nationwide. Dobbs v. Zant, — U.S. -, -, 113 S.Ct. 835, 836 , 122 L.Ed.2d 103 (1993) (Scalia, J., concurring). We also add to that “impenetrable complexity and hence a propensity to error” that infect the capital sentencing process. Richmond v. Lems, — U.S. -, -, 113 S.Ct. 528, 538 , 121 L.Ed.2d 411 (1992) (Scalia, J., dissenting).
I do not believe that today’s decision, or the court’s advice, will in any way promote the trustworthiness of capital sentencing. Instead, in order to avoid being blind-sided, trial judges will understandably add to every special verdict language of this sort:
I have considered all of the evidence the defendant has offered in mitigation, whether statutory or non-statutory, whether argued or not, and whether known to me at the time of the special verdict or not.
This adds nothing to the quality of the process. I respectfully dissent.