Below are two separate accounts of the beating of Raymond Nix as told by the Seattle PI Blog.

May 12, 2010

Raymond Nix was beaten so badly by Seattle Police Officer Zsolt Dornay Jr. and two other cops on July 31, 2003, that he nearly died four days later from a lacerated spleen. This photograph showing his face injuries was taken at the jail right after he was arrested.

Police reports show that Nix punched Bauer, the sergeant. Nix, who also was Tased, told the Seattle P-I in 2008 he doesn’t recall the punch. The man said he quickly lost consciousness.

An investigator working for attorney Paul Richmond, who represented Nix in the unsuccessful lawsuit, interviewed witnesses from a park across the street who said Nix was pummeled long after he lost consciousness. Nix said in court documents he was paraded in front of others at the jail by one of the officers who said, “this is what happens when you mess with the sergeant in charge of narcotics.”

But Nix’s court claim indicates Woollum was not involved with the jail incident and may not have participated in his beating — but allegedly did nothing to intercede.

Nix, a Haida Indian who suffers from arthritis, collapsed four days later in a jail shower from a ruptured spleen and other internal injuries. His heart stopped twice on the operating table, medical records indicate.

Police internal investigators had problems obtaining the mandatory after-action report of the incident in the weeks afterward. The use-of-force report, normally written by officers and their sergeant immediately after an incident, was missing when internal investigations asked for it. Parts or all of the report had to be “re-created,” according to the police records obtained from the prosecutor’s office.

Marijuana and money from the Supplemental Security Income check he cashed the day of the incident were found on Nix, and traces of cocaine were found in his bloodstream, records showed.

But the King County Prosecutor’s Office dropped assault charges against Nix, and also didn’t pursue drug charges.

Dornay, who also was named in the suit that was dismissed, is a controversial officer who has been described as “a good investigator” by West Precinct Capt. Steve Brown, but also has a history of excessive force.

Officer Zsolt Dornay Jr. was for years the public face of the toughest squad of street-fighting cops in Seattle.

His remarkable history — revealed in documents and his own words — paints a picture of an aggressive, proactive cop. Critics and fans alike can find grist in his tale, which is as complex as the graffiti in the territory he patrolled.

The same cop who was officer of the year in the North Precinct in 2000 — before he transferred to the West Precinct — was nearly fired before he passed probation as a rookie. Off duty, Dornay chased a man to Woodinville in a violent road rage incident in 1995, held a gun to his head and rubbed his face into the surface of a parking lot, records show.

He said the other motorist had a gun, but it was never found. He was suspended for 30 days, half of it held in advance, but spared termination because his supervisors believed “this guy had real potential,” said Norm Stamper, who was police chief at the time.

An amateur boxer, Dornay was known as a great backup for other officers in the Anti-Crime Team at the department’s West Precinct, known as ACT, where he served for years before he transferred recently to an auto-theft detail.

The son of a cop, he was given a dose of tough love at 15 when his dad turned him in to police for a minor break-in and theft at a community pool.

“While I was on the West ACT Team, we typically made 500-700 arrests per year. Most of those arrests were for felonies such as drug dealing,” Dornay wrote in an e-mail. “I would typically be dressed as a transient to blend in as I tried to purchase drugs or protect other undercover officers who were trying to purchase drugs during buy-bust operations (dangerous stuff, no?).”

With that action comes citizen complaints and obstruction arrests, he said.

He tagged people for obstructing a public officer more often than 99 percent of the other commissioned folks in the department, records show. Depending on which of his obstructing cases you count over the past six years — the stand-alone ones or the ones that accompanied other charges — he ranked from 12th to third in a department of 1,200 officers, according to court data analyzed by the P-I.

Dornay racked up 25 obstruction arrests over a six-year period, which resulted in four dropped cases with one charge pending, records showed.

‘A good investigator’

Capt. Steve Brown, commander of the West Precinct, called Dornay a highly skilled and experienced narcotics officer.

“He’s a good investigator,” Brown said. “You’ve got to be curious about what’s going on with the street dynamic.”

Brown defended the obstruction arrests made by Dornay and his West Precinct ACT colleagues, citing the dangerous situations they face. He said the “alcohol-fueled” concentration of people outside the late-night bars is just one example.

It was one of those alcohol-fueled situations that saw the police guild rally around Dornay two years ago. The union paid for a newspaper ad featuring Dornay’s bloodied face seeking witnesses to an angry mob that had beat him nearly unconscious in Post Alley just before he shot a lawyer in the stomach in self-defense.

Dornay’s account of that incident was viewed skeptically by Sam Pailca, the civilian director of the Police Department’s Office of Professional Accountability, who felt he riled the mob in the alley that night, though was justified in shooting. She asked for an internal investigation of his behavior in the alley leading up to the shooting, but the review apparently never happened, records show.

Dornay, 38, said in an e-mail to the P-I that Post Alley “spiraled into the most traumatic incident of my life.” He asked for understanding.

Dornay implored people to get some “insight on what Anti-Crime Teams go through” before judging things such as obstruction arrests and fistfights with unruly citizens.

He invited a reporter to call his cell phone in December, but he never answered it. Over the months, Dornay communicated through a few e-mails and a letter written by an attorney hired by the city to defend him against litigation.

“The ACT teams spend a large portion of their time dealing with gang members, career criminals and drug addicts. Quite often, we were also assigned to deal with bar closing on Friday and Saturday nights in Pioneer Square and Belltown,” he wrote. “While dealing with intoxicated patrons, the slightest perceived threat can easily lead to mob mentality violence.

“Myself and my co-workers have been shot at, punched in the face, slammed to the ground, kicked in the head, bit and spit upon during our investigations and arrests.”

On the other hand, records show some arrestees have been mistreated by West Precinct ACT, and some investigators raised eyebrows about it.

Three ACT officers, including Dornay, were ordered to undergo retraining after an incident in June 2005, where they strip-searched three men in the same room, a rule violation.

Capt. Neil Low, the commander of internal investigations, wrote a memo six months after the event in which he said a preponderance of the evidence “supports” more serious allegations against some of the officers who participated in the strip-search, though their names were not released to the P-I. Dornay was there, but his role was unclear. Names were redacted before the P-I received the memo.

A black male suspect in his late 20s told investigators one of the officers pulled up and down on his testicles, “which made my knees buckle and I fell to the ground,” according to the memo.

The investigators were also told that an officer stuck his finger into a suspect’s rectum to retract a narcotics pill, a job reserved under the rules for medical staff, the memo said.

Low proposed sustaining violations in both instances, but the department found a violation only for the simultaneous strip-search.

Dornay said in an e-mail there was confusion over strip-search rules, and he noted all three suspects were “convicted felons” from whom “we recovered Ecstasy and crack cocaine.”

Dornay was investigated by internal affairs for four other unnecessary-force allegations, not counting the strip-search case, during the past five years, records show. Investigators decided against all the complainants.

The complaints included a 2003 incident when Dornay and two other officers manhandled a 65-year-old Native American so badly the man nearly died of a lacerated spleen.

“I’m definitely not against the police, but I think it’s terrible they don’t get rid of these guys,” said Marianne Scott, 57, a Pike Place Market facilities employee and friend of Raymond Nix, the Native American man. “It’s really sickening the way they take care of them, the way they cover things up.”

The Nix beating case

On July 31, 2003, Dornay and a partner, Sgt. Joe Bauer, arrested Nix, subjecting him to Taser jolts, punches and body blows so hard some witnesses told a private investigator they could hear the impacts from across the street, records show. Dornay’s own after-action report indicated he probably landed the most blows as well as the Taser jolts and pepper spray.
Raymond Nix photo
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Raymond Nix was beaten so badly by police officers outside of a Denny Regrade bar that he nearly died four days later from a lacerated spleen. This photo was taken shortly after his July 31, 2003, arrest. (Photo provide by King County Prosecutor’s Office)

Nix, a Haida Indian who suffers from arthritis, collapsed four days later in a jail shower from a ruptured spleen and other internal injuries. His heart stopped twice on the operating table, medical records indicate.

Dornay and Bauer were wearing black clothing with SPD markings and they descended on Nix rapidly as he exited a Denny Regrade bar, believing they heard him make a remark sounding like a drug deal to a woman who was a known crack cocaine dealer.

Nix punched Bauer when he grabbed him, police reports say; Nix said he doesn’t recall doing that. He also doesn’t remember much of the beating, which began immediately.

Nix said he lost consciousness very quickly and didn’t have a chance to resist. He doesn’t remember much of the experience. “I didn’t have a chance to be scared,” he said. “They shot me with a Taser and beat me mercilessly.”

An investigator working for attorney Paul Richmond, who represented Nix in an unsuccessful lawsuit, interviewed witnesses from a park across the street who said Nix was pummeled long after he lost consciousness. Nix said he was paraded in front of others at the jail by one of the officers who said “this is what happens” to anyone who punches a sergeant.

Raymond Nix photo 2

Andy Rogers / P-I
Raymond Nix, 69, is shown outside Kelly’s Bar downtown Seattle on Dec. 31, 2007.

Police internal investigators had problems obtaining the mandatory after-action report of the incident in the weeks afterward. The use-of-force report, normally written by officers and their sergeant immediately after an incident, was missing when internal investigations asked for it. Parts or all of the report had to be “re-created,” according to the police records obtained from the prosecutor’s office.

Marijuana and money from the Supplemental Security Income check he cashed the day of the incident were found on Nix, and traces of cocaine were found in his bloodstream, records showed.

The King County Prosecutor’s Office dropped assault charges against Nix, and also didn’t pursue drug charges.

“If he is, in fact, just startled and believes he is being accosted by strange people, you have a right to defend yourself,” said Mark Larson, chief criminal deputy in the prosecutor’s office. Larson said his office analyzed the case carefully and believe the police moved on Nix so quickly he may not have understood who they were.

“I won’t even comment on how silly that claim is,” said Ted Buck, the attorney representing Dornay, in a letter to the P-I. “If (Nix) couldn’t make out the three-inch-high reflective letters spelling “POLICE” on the officers’ shirts and couldn’t hear Bauer identifying himself as a police officer, it was because he was hopelessly impaired by drugs and alcohol.”

Scott, Nix’s friend, filed an internal investigations complaint, but the inquiry ended quickly when police investigators were unable to contact Nix, records show.

Nix’s lawsuit petered out when Nix and his lawyer failed to pursue it. Richmond, a new lawyer at the time, acknowledged that Nix’s own history — two-dozen misdemeanors when he was much younger — would have made him a poor witness.

Post Alley melee

What Dornay calls the “most traumatic incident of my life” began just after midnight on June 24, 2006, right after work. Dornay drove his personal Honda Goldwing touring motorcycle into a narrow Pike Place Market alley jammed with 75 to 100 pedestrians, by his own count, who were exiting the nightclubs.

He drove at walking speed, gunning the engine to get people out of the way. Some witnesses afterward said he acted like an aggressive biker; others felt his approach was unremarkable.

But an inebriated woman took umbrage. She mounted the wide wheel guard on the front of his bike and grabbed the windshield, to force him to stop. He did once, rummaging through his cargo compartment, presumably for his police identification. Failing to find his ID, he drove his bike ahead, carrying the woman on the front of his bike up to a dozen yards down the alley.

The woman’s employer, a male lawyer, walked alongside, making nasty comments to Dornay. Dornay said the crowd size prevented him from turning around. Witnesses said the biker became extremely angry.

Dornay shoved the woman against a restaurant door, which infuriated onlookers.
Zsolt Dornay injured photo
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Seattle Police Officer Zsolt Dornay Jr. lies in the hospital after a group of men in June 2006 attacked him in Post Alley, kicking and beating him to the point where he briefly lost consciousness. The photo was distributed as public fliers by the Seattle Police Officers Guild.

A half-dozen men attacked Dornay, pulling his coat over his head and kicking and beating him to a point where he briefly lost consciousness. Nearly every witness account points to the fact that Dornay had a reason to fear death or permanent brain damage. He pulled out his police handgun and shot the lawyer, James Walker, in the stomach.

Many readers know the outcome of this publicized event: The lawyer survived. Seattle police were called off the investigation in favor of Kent police investigators. The Prosecutor’s Office declined to prosecute anyone.

Pailca, the former OPA director, was critical of the initial investigation of the Post Alley incident by Seattle homicide officers. “Their early probe suffered from a strong appearance of early judgment and partiality,” Pailca wrote in a Nov. 3, 2006, report. “This serves no one’s interest, least of all the officers whose actions were under scrutiny.”

On June 28, four days after the incident, Kent police asked Seattle officers to obtain the video from two cameras mounted in the alley, but were later told no video existed.

Pailca wrote: “I could see no discussion (in the SPD homicide investigation file) about a search for or identification of any video of the incident.”

On July 11, a Kent officer returned to the alley and spoke to a building owner whose surveillance camera had not been examined. By then, the video in the camera, which was behind a nearly opaque door, had recycled, as it does every seven days, so nothing was available.

“The door is fairly solid, but has oval holes cut in it,” building owner Dave Martin told the P-I. “What might have appeared would have been the impact of the woman being hurled against the door.”

Pailca also requested an internal investigation of Dornay’s behavior in the alley leading up to the shooting. But when she left the department a year ago, OPA had not been asked under the procedures to open a case. “There is ample evidence to support that his actions contributed to the need to fire,” Pailca wrote in 2006.

Buck, the lawyer, said concerns about Dornay at the Post Alley shooting were misplaced: “You focus on the acts of a sober man dealing with an undeniably belligerent, aggressive and intoxicated woman who, along with Walker, simply wouldn’t leave him alone. How about some focus on the drunken thugs that nearly killed Zsolt?”

“In my opinion, to say that this shooting was justified is ridiculous,” said Michael Frost, Walker’s former attorney. “Dornay fired six shots at a group of unarmed civilians who had come to the aid of a woman Dornay had just assaulted. It’s a miracle no one was killed.”

The city has paid Buck and his firm $76,000 to defend Dornay from litigation, two-thirds for the Nix case and the remainder to prepare for a possible suit by the shot lawyer, records show.

By Doc.

Well I guess two wrongs does make it right. Recently the King County Prosecutor chose a unacceptable plea bargain. But I guess it’s a standard brought on by corrupt  fat cats with insurance company’s that influence legal prosecution.

THE LAW

RCW 46.52.020

Duty in case of personal injury or death or damage to attended vehicle or other property — Penalties.

(1) A driver of any vehicle involved in an accident resulting in the injury to or death of any person or involving striking the body of a deceased person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to, and in every event remain at, the scene of such accident until he or she has fulfilled the requirements of subsection (3) of this section; every such stop shall be made without obstructing traffic more than is necessary.

(2)(a) The driver of any vehicle involved in an accident resulting only in damage to a vehicle which is driven or attended by any person or damage to other property must move the vehicle as soon as possible off the roadway or freeway main lanes, shoulders, medians, and adjacent areas to a location on an exit ramp shoulder, the frontage road, the nearest suitable cross street, or other suitable location. The driver shall remain at the suitable location until he or she has fulfilled the requirements of subsection (3) of this section. Moving the vehicle in no way affects fault for an accident.

(b) A law enforcement officer or representative of the department of transportation may cause a motor vehicle, cargo, or debris to be moved from the roadway; and neither the department of transportation representative, nor anyone acting under the direction of the officer or the department of transportation representative is liable for damage to the motor vehicle, cargo, or debris caused by reasonable efforts of removal.

(3) Unless otherwise provided in subsection (7) of this section the driver of any vehicle involved in an accident resulting in injury to or death of any person, or involving striking the body of a deceased person, or resulting in damage to any vehicle which is driven or attended by any person or damage to other property shall give his or her name, address, insurance company, insurance policy number, and vehicle license number and shall exhibit his or her vehicle driver’s license to any person struck or injured or the driver or any occupant of, or any person attending, any such vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying or the making of arrangements for the carrying of such person to a physician or hospital for medical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person or on his or her behalf. Under no circumstances shall the rendering of assistance or other compliance with the provisions of this subsection be evidence of the liability of any driver for such accident.

(4)(a) Any driver covered by the provisions of subsection (1) of this section failing to stop or comply with any of the requirements of subsection (3) of this section in the case of an accident resulting in death is guilty of a class B felony and, upon conviction, is punishable according to chapter 9A.20 RCW.

(b) Any driver covered by the provisions of subsection (1) of this section failing to stop or comply with any of the requirements of subsection (3) of this section in the case of an accident resulting in injury is guilty of a class C felony and, upon conviction, is punishable according to chapter 9A.20 RCW.

(c) Any driver covered by the provisions of subsection (1) of this section failing to stop or comply with any of the requirements of subsection (3) of this section in the case of an accident involving striking the body of a deceased person is guilty of a gross misdemeanor.

(d) This subsection shall not apply to any person injured or incapacitated by such accident to the extent of being physically incapable of complying with this section.

(5) Any driver covered by the provisions of subsection (2) of this section failing to stop or to comply with any of the requirements of subsection (3) of this section under said circumstances shall be guilty of a gross misdemeanor: PROVIDED, That this provision shall not apply to any person injured or incapacitated by such accident to the extent of being physically incapable of complying herewith.

(6) The license or permit to drive or any nonresident privilege to drive of any person convicted under this section or any local ordinance consisting of substantially the same language as this section of failure to stop and give information or render aid following an accident with any vehicle driven or attended by any person shall be revoked by the department.

(7) If none of the persons specified are in condition to receive the information to which they otherwise would be entitled under subsection (3) of this section, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsections (1) and (3) of this section insofar as possible on his or her part to be performed, shall forthwith report such accident to the nearest office of the duly authorized police authority and submit thereto the information specified in subsection (3) of this section.

[2002 c 194 § 1; 2001 c 145 § 1; 2000 c 66 § 1; 1990 c 210 § 2; 1980 c 97 § 1; 1979 ex.s. c 136 § 80; 1975-'76 2nd ex.s. c 18 § 1. Prior: 1975 1st ex.s. c 210 § 1; 1975 c 62 § 14; 1967 c 32 § 53; 1961 c 12 § 46.52.020; prior: 1937 c 189 § 134; RRS § 6360-134; 1927 c 309 § 50, part; RRS § 6362-50, part.]

RCW 9A.20.020

Authorized sentences for crimes committed before July 1, 1984.

(1) Felony. Every person convicted of a classified felony shall be punished as follows:

(a) For a class A felony, by imprisonment in a state correctional institution for a maximum term fixed by the court of not less than twenty years, or by a fine in an amount fixed by the court of not more than fifty thousand dollars, or by both such imprisonment and fine;

(b) For a class B felony, by imprisonment in a state correctional institution for a maximum term of not more than ten years, or by a fine in an amount fixed by the court of not more than twenty thousand dollars, or by both such imprisonment and fine;

(c) For a class C felony, by imprisonment in a state correctional institution for a maximum term of not more than five years, or by a fine in an amount fixed by the court of not more than ten thousand dollars, or by both such imprisonment and fine.

(2) Gross Misdemeanor. Every person convicted of a gross misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than one year, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine.

(3) Misdemeanor. Every person convicted of a misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars, or by both such imprisonment and fine.

(4) This section applies to only those crimes committed prior to July 1, 1984.

[1982 c 192 § 9; 1981 c 137 § 37; 1975-'76 2nd ex.s. c 38 § 2; 1975 1st ex.s. c 260 § 9A.20.020.]

RCW 9A.04.080
Limitation of actions.

(1) Prosecutions for criminal offenses shall not be commenced after the periods prescribed in this section.

(a) The following offenses may be prosecuted at any time after their commission:

(i) Murder;

(ii) Homicide by abuse;

(iii) Arson if a death results;

(iv) Vehicular homicide;

(v) Vehicular assault if a death results;

(vi) Hit-and-run injury-accident if a death results (RCW 46.52.020(4)).

DUI-The law (exerpt)

Washington Criminal Status: Gross misdemeanor for per se and high, misdemeanor for anyone under 21 years of age.

Jail: BAC Per Se: 1st offense: No less than one day nor more than one year imprisonment. Imprisonment may not be suspended or deferred unless the court finds that imprisonment would impose a substantial risk to the offender’s physical or mental well-being. Instead of imprisonment, the court may order a 15-day electronic home monitoring (EHM) device be installed at the offender’s expense. EHM may also include an alcohol detection breathalyzer.

High BAC: Imprisonment of not less than 2 days nor more than one year. Imprisonment may not be suspended or deferred unless the court finds that imprisonment would impose a substantial risk to the offender’s physical or mental well-being. Instead of imprisonment, the court may order a 15-day electronic home monitoring (EHM) device be installed at the offender’s expense. EHM may also include an alcohol detection breathalyzer.

Washington DUI Fines/Costs:
BAC Per se: Not less than $350 nor more than $5,000.
High BAC or test refusal: Not less than $500 nor more than $5,000.
In addition:

• A $125 fee is assessed to a person who is either convicted, sentenced to a lesser charge, or given deferred prosecution, as a result of an arrest. The fee goes to the WA State Toxicology Laboratory.
• A $500 fee is assessed to support the victim’s compensation fund and an assessment of 60% of the fine imposed to fund safety and education programs.

The Citations for cases involving “Impaired Vehicular Homocide”

State v. West,  176 Ariz. 432, 862 P.2d 192 (1993)
The defendant claimed his intoxication was a mitigating circumstance, but the trial court was “justified” in rejecting intoxication as a mitigating factor because the defendant’s own evidence refuted his claim. A defense expert testified that he was unwilling to offer any opinion on whether the defendant was under the influence at the time he committed the murder. The trial court was “justified” in finding that the defendant’s chemical dependency did not significantly impair his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law under the (G)(1) statutory mitigating circumstance. Although the defendant presented evidence that his chemical dependency made choices in life more difficult, and that he made poor choices as a result of his addiction, the defense expert would not testify that the defendant could not differentiate right from wrong or could not conform his conduct to the requirements of the law.

The Court agreed that the defendant had proven his substance abuse problem by a preponderance of the evidence, and that it was a nonstatutory mitigating circumstance, but was insufficient to call for leniency in this case. The defendant had ample opportunities to overcome his substance abuse problem. He declined three separate referrals to drug treatment. The Court would not “ascribe much weight in mitigation to a problem for which the defendant refuses to take responsibility.” The defendant argued that his failure to complete a drug rehabilitation program should have been considered in mitigation. The trial judge was “justified” in rejecting this claim of mitigation because the evidence suggested that the defendant turned down an opportunity to enter such a program on three separate occasions.

State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)
The Court agreed with the trial court that Gallegos’ impairment on the night of the murder did not rise to the level of “significant” impairment contemplated by the (G)(1) mitigating circumstance. Gallegos testified that he smoked marijuana and may have consumed as many as 18 to 21 beers on the day of the murder. Additionally, he testified that he drank some tequila and shared a half-gallon of scotch with two others. But Gallegos’ alcohol consumption was largely uncorroborated by physical evidence, or by other testimony. Further, his testimony and his confession revealed his state of mind immediately following the murder and that he had tried to conceal evidence. It was clear that he appreciated the wrongfulness of his conduct and that he acted with significant forethought. Despite evidence in the record indicating that Gallegos was impaired to some degree on the night of the murder, that impairment alone was insufficient to establish the (G)(1) mitigating circumstance.

But the trial court should have considered whether Gallegos’ impairment, when viewed in light of his alleged history of alcohol and drug abuse, constituted a nonstatutory mitigating circumstance. After considering the evidence that Gallegos was impaired to some degree on the night of the murder, as well as his history of drug and alcohol abuse, the Court found that his impairment constituted a nonstatutory mitigating circumstance. The Court remanded for resentencing because it could not clearly ascertain whether the trial court would have sentenced Gallegos to death if it had considered Gallegos’ impairment as a nonstatutory mitigating circumstance.

State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
Dr. McMahon concluded that the defendant’s capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired because of his psychological makeup and the alcohol/cocaine intoxicated state he was in at the time of the murder. There was no evidence in the record to contradict this finding, so the defendant proved the (G)(1) mitigating circumstance. The defendant argued his chronic substance abuse in mitigation. The Court noted that the trial court correctly found this to be a nonstatutory mitigating factor, but did not discuss it.

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)
The Court agreed with the trial court that Wood’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired. Wood offered expert testimony in support of his claim that his actions were due largely to his chronic alcohol and drug dependency and his impulsive personality. Neither of the psychologists who evaluated Wood could directly address Wood’s conduct on the date of the murders because Wood maintained that he had no recollection of the events. One of the psychologists testified that Wood’s substance abuse history had a significant impact on his behavior at the time of the killings. This testimony was weakened, however, by the fact that the psychologist, before examining Wood but after studying prior evaluations and records, stated in a letter to defense counsel that Wood’s “drug and alcohol use was not of an early enough onset and chronicity to result in significant impairment in impulse control or other maturation affecting the ability to process feelings and behavior.”

Both psychologists who evaluated Wood said that he did not suffer from any form of mental illness, but only from a form of personality trait that drug and alcohol abuse often exacerbated. Wood admitted, however, that he had used no drugs for three days prior to the murders and had consumed only two alcoholic drinks over twelve hours before the murders. This case fell “far short” of those meeting the (G)(1) mitigating circumstance. The Court also considered whether Wood’s history of substance abuse merited any weight as nonstatutory mitigation. The Court gave it “little, if any” weight, noting that he was not under the influence of any intoxicating substance at the time of the murders. See also mental impairment discussion.

State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
The Court adopted the findings of the trial court that the defendant did not prove that his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired by drug usage. Although the defendant spent over two years at a state hospital because of alcohol, marijuana and cocaine abuse, there was no evidence in the record to suggest that the use of any drugs or alcohol contributed to the conduct in causing the victim’s death. The Court adopted the findings of the trial court that the defendant failed to prove this nonstatutory mitigating circumstance. The defendant argued in mitigation that he had a long history of alcohol abuse and addiction.

State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)
Dr. McMahon concluded that the defendant was intoxicated to some degree at the time of the murders, and that therefore his ability to fully appreciate the consequences of his actions was impaired. When pressed on cross-examination, the doctor stated that the defendant told him he was drunk. Later the doctor indicated that the defendant simply told him that he did not commit the crimes. There is nothing in the record to indicate that the defendant was intoxicated at the time of the murders or how much, if any, alcohol was consumed that day by the defendant. There is a dramatic difference between the ability to appreciate the wrongfulness of one’s conduct and the ability to appreciate the full consequences of one’s conduct. The fact that the defendant wiped the guard’s holster indicates that the defendant knew enough to try to cover up his acts.

Dr. McMahon also testified that people with post-traumatic distress have difficulty controlling their emotions. Impulsivity is not the same as inability to conform one’s conduct to the requirements of the law. The Court affirmed the trial court’s conclusion that the (G)(1) mitigating factor was not proven. The trial court found that the defendant had proven that he had a substance abuse problem. The Court agreed with this conclusion without discussion.

*State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
Richmond argued that in the event of a remand for a third sentencing hearing, he would present evidence of his significant psychological disability, which was enhanced by his alleged drug addiction, at the time of the murder more than twenty years earlier. The record suggested that Richmond may have been impaired by drugs at the time of the killing. But this Court had not interpreted the (G)(1) mitigating factor as including impairment by intoxication until three months after Richmond’s second sentencing. Consequently, Richmond’s drug use and its possible connection to the murder was neither considered nor argued in mitigation. Although the Court could not evaluate the potential evidence at a resentencing as part of this reweighing, the Court was reminded that this case was “engulfed in a quagmire of complexity” because capital sentencing laws had changed so significantly over the years. After reweighing, the Court found the mitigation in this case sufficiently substantial to call for leniency, and reduced Richmond’s sentence to life.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Stokley argued that he was significantly impaired, under the (G)(1) mitigating circumstance, because of alcohol consumption. Voluntary intoxication may be mitigating if a defendant proves by a preponderance of the evidence that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was significantly impaired. Here, there was evidence that Stokley and his codefendant consumed alcohol on the day of the murders. Several witnesses testified that they saw him consuming beer and whiskey the afternoon and night of the murders, but they testified that the codefendant was drinking and appeared more intoxicated than Stokley. The morning after the murders, the owner of the campsite where the victims had camped found an empty quart bottle of whiskey, an empty half-pint bottle of whiskey and an empty six-pack of beer, but these items were never tied to Stokley. Based entirely on Stokley’s self-reported consumption and blackout on the night of the murders, a clinical psychologist said that Stokley’s capacity to appreciate the wrongfulness of his conduct was significantly impaired at the time of the crime. But there was a great deal of evidence that Stokley did not suffer a blackout and was not significantly impaired by alcohol at the time of the murders. He disposed of the bodies and burned the clothing of the victims, demonstrating that he knew the conduct was wrongful. He was able to accurately guide officers back to the crime scene and he had substantial recall of the events. The Court agreed with the trial court that Stokley was not significantly impaired and the (G)(1) mitigating circumstance did not exist.

Even if impairment does not rise to the level of the (G)(1) mitigating circumstance, the trial court should still consider whether such impairment constitutes nonstatutory mitigation, when viewed in light of a defendant’s history of alcohol and drug abuse. Here, various acquaintances testified that Stokley was an alcoholic and considered himself to be one. A clinical psychologist agreed with that assessment. Stokley claimed to have consumed at least a pint of whiskey every day and to have used various illicit drugs in the past. He was arrested twice for drunkenness and was convicted twice for driving while intoxicated. The Court noted that the trial judge was very thorough in considering both statutory and nonstatutory mitigating circumstances. The trial judge concluded that “alcohol abuse over an extended period of defendant’s life, and his drinking at the time of the killings are not mitigating circumstances under the facts of this case.” The Court agreed with the trial court that Stokley failed to prove that his alcohol or drug use was a nonstatutory mitigating factor.

State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)
Use of drugs is a statutory mitigating circumstance only if the evidence shows that, at the time of the offense, drugs significantly impaired the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. If impairment does not rise to the level of a statutory mitigating circumstance, such impairment may constitute a nonstatutory mitigating circumstance when viewed in light of a history of alcohol or drug abuse.

A witness testified that the defendant started using cocaine about six months prior to murdering the victim and that he became more violent on cocaine. This witness testified that the defendant told her that he was using drugs the day before the murder. The defendant, however, denied that he ever used drugs. There was no evidence that the defendant was intoxicated when he murdered the victim or that he was impaired at that time. Without a showing of impairment, drug use cannot be a mitigating circumstance.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Evidence was presented that Roger and Robert consumed alcohol on the night of the crimes. In the presentence investigation, Roger reported that he was a regular consumer of alcohol and a user of illicit drugs, including cocaine, methamphetamine, heroin, and crack cocaine. Although Dr. Potts concluded that Roger’s abilities to conform his conduct to the requirements of the law were markedly diminished because of illicit substance abuse, the trial court found no evidence that Roger was intoxicated at the time of the offense. The Court found that Roger failed to show alcohol or illicit drugs impaired his ability to appreciate wrongfulness or conform his behavior to the requirements of the law. The Court also considered whether Roger’s impairment evidence constituted nonstatutory mitigation, when viewed in light of his alleged history of alcohol and drug abuse. The Court concluded that Roger failed to prove his alcohol or drug use as nonstatutory mitigation, primarily because the historical substance abuse was self-reported and uncorroborated.

State v. Medrano (Medrano II), 185 Ariz. 192, 914 P.2d 225 (1996)
Dr. Pitt, a psychiatrist, testified that the defendant has paranoid personality traits, was cocaine dependent, cocaine use often leads to violence, and the defendant was not malingering. Dr. Pitt could not say if the defendant was impaired at the time of the murder, but could only say that he would have been significantly impaired if he were under the influence of cocaine when the crimes were committed. The defendant provided most of the information regarding his drug use in general and on the night of the murder. Even Dr. Pitt did not believe the defendant’s claims regarding the prodigious amounts of cocaine he supposedly used before the murder. While the Court did not question whether the defendant used cocaine on the night of the murder, he has not presented sufficient evidence to support a finding of impairment from that cocaine use. From testimony of witnesses, the defendant was able to drive around the city, find a bar, his friend’s house, the victim’s house, and a store on the night of the murder. If he used cocaine that night, it did not overwhelm his ability to control his physical behavior.

The defendant further argued that because he is a nonviolent person, cocaine must have caused his actions on the night of the murder. The defendant’s past criminal record and testimony from friends and family did not establish impairment or any causation between drug use and the murder. The defendant similarly argues that the absence of any motive for his actions, other than cocaine intoxication, proves that he was unable to conform his conduct to the requirements of the law or to appreciate the wrongfulness of his conduct. While lack of a motive may reinforce a finding that mental impairment was a contributing cause of the murder, there was evidence in this case that the defendant killed the victim to prevent her from telling her husband about the rape. The defendant’s actions belie his claim of significant impairment. The defendant was able to provide details of the crime to the police and articulate what he was thinking immediately before and after the murder. He disposed of the murder weapon upon leaving the house also. There was simply insufficient evidence to show that he was significantly impaired. This evidence also fails to support cocaine use as a nonstatutory mitigating circumstance.

State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d 1056 (1996)
In Gallegos I, the Court agreed with the trial court that Gallegos was not “significantly impaired,” but concluded that the evidence of Gallegos’ impairment from alcohol was a nonstatutory mitigating circumstance and remanded for resentencing. On remand, the trial court found Gallegos’ alcohol impairment as a nonstatutory mitigating circumstance, but not sufficiently substantial to call for leniency, and resentenced Gallegos to death. The Court agreed, concluding that Gallegos’ alcohol impairment at the time of the murder, and his past substance abuse, were worthy of little, if any, weight in mitigation. See Gallegos I.

State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
The trial court found that the defendant had a long-standing substance abuse problem and that he was under the influence of alcohol and drugs at the time of the offense. His substance abuse problem may have been caused by genetic factors and aggravated by head trauma. The history of substance abuse is well documented. The defendant’s stepfather testified that by the age of 17 the defendant had attended two drug rehabilitation programs and had used many types of drugs, and was an alcoholic.

The evidence of intoxication on the night of the murders is based on the defendant’s self-reporting. He testified that he was under the influence of alcohol and methamphetamines on the night of the murders and had not slept for three or four days. However, a witness who saw the defendant and one of the victims shortly before the murders testified that although he knew that the defendant was drinking, the defendant was not visibly intoxicated. The Court gave this circumstance some weight in mitigation, but it was not sufficiently substantial to call for leniency.

State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)
A psychologist’s testimony regarding the effect of defendant’s crack cocaine abuse was properly excluded for lack of foundation. The expert did not know how often or in what quantities the defendant had taken crack cocaine before the murder. Therefore, the expert had no basis upon which to render an opinion about the effects of crack cocaine use at the time of the murder. Furthermore, there was no evidence that the defendant was under the influence of drugs at the time of the murder. He had used drugs in the weeks before the murder, but admitted that he had not used drugs on the day of the murder. The bald assertion that he abused drugs the night before the murder does not satisfy the (G)(1) circumstance.

State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)
The Court noted, without further discussion, that the trial court found some mitigation in the defendant’s drug use because it “may have impaired” his ability to conform his conduct to the requirements of the law. The trial court concluded that the mitigating evidence in this case was not sufficiently substantial to require leniency.

State v. Laird, 186 Ariz. 203, 920 P.2d 769 (1996)
There was no evidence that the defendant was drunk at the time of the murder. The witnesses who saw him the day before the murder saw no signs of intoxication. There was no mention of intoxication when the defendant spoke with his friends that night or the next morning. See also mental impairment section.

State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)
The defendant did not raise this issue at the presentence hearing nor on appeal. The state presented some expert testimony about the defendant’s habitual substance abuse at the presentence hearing, but it was insufficient to meet the defendant’s burden of proof. See also mental impairment section.

State v. Miller,  186 Ariz. 314, 921 P.2d 1151 (1996)
Miller argued that the trial court erred in failing to find his intoxication mitigating. The Court noted that intoxication is mitigating, under the (G)(1) circumstance, when it impairs a defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Miller claimed he had consumed a large amount of alcohol and had taken several Percocets, a narcotic painkiller, before the murder. His roommates told the police that he had consumed a large quantity of alcohol. Miller also claimed he usually was not violent toward other people and the murder would not have happened had he not been intoxicated. But the trial court rejected intoxication as mitigating in this case, relying primarily on Miller’s ability to drive down Mt. Lemmon at night, at a high rate of speed, right before he pulled the living victim from the vehicle and shot her five times. In addition, Miller had once assaulted a group of students with a .22 caliber handgun, which tended to refute his claim that he usually was not violent toward other people. The Court agreed with the trial court that Miller’s intoxication did not impair either his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law.

State v. Detrich (Detrich II), 188 Ariz. 57. 932 P.2d 1328 (1997)
On the night of the murder, Detrich consumed between 12 and 24 cans of beer in a two-hour period at one bar, and later visited several more bars and consumed more beer. The trial court found that Detrich was “significantly impaired” as provided for in the (G)(1) mitigating circumstance, but found that the mitigating evidence in this case was not sufficiently substantial to outweigh the aggravating circumstance of having committed this offense in an especially cruel, heinous or depraved manner. Detrich argued that his mitigating evidence should have been given greater weight. The Court concluded that Detrich’s mitigating evidence was less significant than it initially might seem. “Although the trial judge found that defendant’s alcoholic state significantly impaired him, the judge noted that defendant was cognizant of his surroundings and was capable of carrying on conversations with [the codefendant] and the victim.”

State v. Barry Jones, 188 Ariz. 388, 937 P.2d 310 (1997)
The defendant argued that his methamphetamine use was a mitigating circumstance. Voluntary intoxication may be a mitigating factor if the defendant proves by a preponderance of the evidence that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired. The defendant self reported heavy methamphetamine use at the time of the murder. Expert testimony corroborated this along with testimony of other witnesses who indicated that the defendant used the drug the day before the murder. However, no testimony established that either because of the drugs or because he was coming down off the drugs that the defendant could not appreciate the wrongfulness of his conduct or conform his conduct to the law. There was insufficient evidence to show that the defendant was impaired by methamphetamine use to constitute either statutory or nonstatutory mitigation.

State v. Henry (Henry II), 189 Ariz. 542, 944 P.2d 57 (1997)
The trial court found that the (G)(1) statutory mitigating circumstance existed because the defendant’s intoxication at the time of the murder impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

Henry claimed that the trial court improperly failed to find his intoxication and history of alcohol and drug abuse as nonstatutory mitigating circumstances. Because the trial court found that the defendant’s intoxication impaired his capacity under A.R.S. §13-751(G)(1), it “would have been redundant to count this evidence again as nonstatutory mitigation.” Further, the Court found insufficient proof of historical substance abuse. Even if there were sufficient proof, it would provide no additional mitigation without evidence of a causal connection to the crime. Following its independent review, the Court “affirmed” the (G)(1) mitigating circumstance found by the trial court, but concluded that the mitigation in this case was not sufficiently substantial to call for leniency.

State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)
The Court found that the record demonstrated the defendant’s longtime substance abuse problems. But the Court noted that the “defendant’s general problems with substance abuse are not essential to our decision here.” The Court declined to conclude that the defendant was impaired by alcohol consumption to an extent that it interfered with his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
In support of his claim of significant impairment, the defendant cites his treatment at a mental health center and psychiatric testimony that he acted impulsively in strangling the victim. Dr. Bendheim testified that the defendant was raised in a disturbed home and was more likely than others to act impulsively. The defendant was acutely emotionally disturbed and extremely vulnerable toward violence. The Court found that this falls short of the significant impairment required by (G)(1). Dr. Bendheim did not believe the defendant’s story that while in the motel he had periods where he mistook the victim for his estranged wife. The psychiatrist opined that the defendant knew right from wrong and was aware that he was committing a wrongful act. The state’s expert found no indication of mental illness that would keep the defendant from knowing right from wrong. The police confirmed that three beer cans were found in the room. However, this was insufficient evidence that the defendant was too intoxicated to conform his conduct to the requirements of the law or appreciate its wrongfulness. The Court did not find either aspect of (G)(1) to have been proven.

State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)
A defendant’s claim of alcohol or drug impairment fails when there is evidence that the defendant took steps to avoid prosecution shortly after the murder, or when it appears that intoxication did not overwhelm the defendant’s ability to control his physical behavior. The defendant had consumed some alcohol on the night of the murder. There is no evidence providing even a rough estimate of how much alcohol was consumed by him. However, there is evidence that the defendant took steps to avoid prosecution by transporting his victim to a remote location, dislodging his stuck vehicle from a rock, summoning his girlfriend for aid, and calling the owner of the car to apologize for damage done to it. This factor does not exist.

There is substantial evidence in this record of the defendant’s history of drug and alcohol abuse. However, this is not a mitigating circumstance when there is no evidence of a causal connection between the substance abuse and the crime. There was no evidence of that causal connection so the Court rejected this mitigating factor. Even if there had been evidence of a causal connection, it would not have been sufficient to warrant leniency. See also mental impairment section.

State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998)
Alcohol intoxication on the night of the murder may have caused some impairment, but it did not significantly impair his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The Court also noted without discussion that the defendant’s history of substance abuse was not sufficiently substantial to call for leniency.

State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998)
The Court agreed with the trial court that Greene failed to establish the existence of the (G)(1) mitigating circumstance. Greene argued that he was significantly impaired due to his drug use and withdrawal. He testified that at the time of the murder he was withdrawing from drugs. Other than his own statement, he presented no evidence of the effect the withdrawal had on his capacity to appreciate the wrongfulness of his conduct or his ability to conform his conduct to the requirements of the law at the time of the murder. Moreover, his behavior showed that he did appreciate the wrongfulness of his conduct because he tried to change clothes and to cover-up the blood stains on him and the car seats.

The Court also rejected Greene’s drug use and withdrawal as a nonstatutory mitigating circumstance in this case. Greene had a 12-year history of substance abuse. His drug use on the days before the murder was undisputed. He used methamphetamine every day for each of the four days prior to the day of the murder, and he ate very little and did not sleep. The Court noted that it has previously given “some weight” to a history of drug abuse and a defendant’s own statement’s about his drug use at the time of the murder. But in this case, Greene testified that he was not under the influence of drugs at the time he killed. Nor was there expert testimony of any causal connection between drug use or withdrawal and the murder. Although Greene killed to get money to buy drugs, that is not the sort of causal connection that would support a claim of mitigation. “To hold that a motivation to kill fueled in part by a desire for drugs is mitigating would be anomalous indeed.”

State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998)
The trial court accepted the defendant’s claim that he was an alcoholic, but found no proof of a causal connection to the crime. The defendant argues that because of his history, stated intent to go drinking that night, his confused state when the officers arrived, and the victim’s high blood alcohol level, that he was probably intoxicated. Alcohol or drug impairment may constitute a statutory mitigating circumstance when viewed together with a history of abuse. The defendant failed to establish that he was intoxicated at the time of the offense. The police officers testified that they did not smell alcohol on the defendant when they first arrived and there were no defense witnesses to corroborate the defendant’s self-reporting. The defendant did not drink on the job and abided by his employer’s rule against drinking and driving the company truck. The trial judge properly concluded that the defendant failed to establish this mitigating circumstance where a finding of intoxication could only be based on self-reporting, personal history, the employer’s testimony that he gave the defendant money to go drinking, and the victim’s blood alcohol content.

State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)
The defendant reported a long history of alcohol and drug abuse. This was not corroborated and so cannot be given substantial weight. Furthermore, there was no causal connection between this history and the defendant’s actions on the night of the murder. See also mental impairment section.

State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
The evidence was insufficient to establish the existence of the (G)(1) mitigating circumstance. The evidence did not support a finding that Smith was impaired by, or even under the influence of, drugs or alcohol at the time of the murders. Smith’s own statements to police were that he was not intoxicated before the murders, but had been taking methamphetamine after the murders. The trial court found that Smith proved by a preponderance of the evidence his long-term addiction to drugs and alcohol, which was a nonstatutory mitigating circumstance. The Court agreed with the trial court’s findings and concluded that the mitigating circumstances in this case, individually and collectively, were not sufficiently substantial to call for leniency.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
The defendant was under the influence of alcohol, marijuana and paint fumes at the time of the murder. Two experts testified that these substances could have significantly impaired defendant’s ability to conform his conduct to the law. The Court found that the defendant established a significantly impaired capacity to conform his conduct to the law’s requirements.

State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
There is some indication that the defendant and codefendants consumed large quantities of alcohol before and during the crime. But the defendant has failed to prove intoxication by a preponderance of the evidence. The defendant was able to recall details of the murder more than a year after it occurred.

State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999)
The defendant argued that his history of mental illness, the history of alcoholism in his family and his own polysubstance abuse established this factor. The Court indicated that while voluntary intoxication, substance abuse, or mental illness can support a (G)(1) finding, personality or character disorders usually are not sufficient to meet the requirements of this mitigator. There must be a causal link between the alcohol abuse, substance abuse or mental illness and the crime itself to meet the preponderance standard. The defendant here did not establish the threshold existence of any of these factors, let alone their impact on his ability to conform his conduct to the requirements of the law. Voluntary intoxication, polysubstance abuse or claimed mental illness will not satisfy the (G)(1) mitigator where the evidence is speculative, conflicting or nonexistent.

The Court looked to impairment caused by intoxication, and the defendant’s past diagnosis and treatment for a bipolar or manic depressive condition. The defendant had consumed some beer on the way back to the victim’s house and historically had been a polysubstance abuser. The trial judge discussed a prior Rule 11 evaluation which indicated some unusual results in the MMPI and some paranoia, as well as an incident in which the defendant carried a cyanide pill to a mental health evaluation which he brought in case he needed to kill himself. Mary Durand speculated that the defendant had mental difficulties based on her interviews with family members and review of reports. However, the record is insufficient to show the existence of any impairment. Nor has any causal relationship been shown to indicate that a mental impairment affected the defendant’s actions or judgment at the time of the murder. The trial judge correctly ruled that impairment was not established as a nonstatutory mitigating circumstance. See also mental impairment section.

State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
The defendant claimed that he did not appreciate the wrongfulness of his conduct based on his continual drug use. Voluntary intoxication can be a mitigating factor if it impairs the defendant’s ability to comprehend the nature of his crimes. It may also be a factor where the defendant has a long history of drug abuse. The defendant here proved he used drugs since his early teens when he was introduced to them by his stepfather. A neuropsychologist found that the defendant had an amphetamine dependence. On the night of the Moon Smoke Shop murders the defendant had only a small amount of beer, and nothing on the night of the Fire Fighters Union Hall murders. A long history of drug dependence does not meet the statutory requirement when the defendant is not under the influence of drugs at the time of the killing. The defendant is not a murderer because of drugs; he is a murderer who has used drugs in the past.

State v. Poyson, 198 Ariz. 70, 7 P.3d 79 (2000)
The defendant argued that his drug use in the days leading up to, and on the day of, the murder caused significant impairment. The trial court concluded that it was unlikely that he was impaired by drugs because he was able to carry out the plan to murder the three victims. The Court agreed with the trial court that the defendant has not proven either that he was unable to conform his conduct to the requirements of the law or that he could not appreciate the wrongfulness of his conduct.

The defendant reported smoking some marijuana six hours before killing Delahunt and eleven hours before killing Wear and Kagen. This is insufficient evidence to prove substantial impairment. The defendant also claimed to have a PCP “flashback” during the murder of Delahunt. There was no evidence in the record other than the defendant’s self-reporting. Even if this did occur, it appears to have lasted only a few moments, which would not explain the defendant’s conduct during the 45 minute attack on Delahunt, or the killings of Wear and Kagen.

Other evidence indicates that the defendant was not impaired. He concocted a story to get bullets from a neighbor, cut the telephone line, and tested the rifle. He made efforts to conceal his crimes. He had Kimberly Lane sneak him into the main trailer to wash the blood off from murdering Delahunt. He also covered Wear’s body with debris to delay its discovery. The defendant was also able to remember in remarkable detail the specifics of the crimes. These actions indicate that the defendant was aware of the wrongfulness of his actions.

State v. Sansing, 200 Ariz. 347, 26 P.3d 1118 (2001)
The defendant presented evidence that drugs dominated his life, that he sounded excited and anxious before the crime, and that he was acting differently than normal and was “spaced out” during commission of the crime. Although it was undisputed that the defendant used cocaine on the day of the murder and for several days before, his actions before, during and after the offenses showed an ability to appreciate the wrongfulness of his actions and to conform his conduct to the law under (G)(1). And because there was no causal nexus between the drug use and the offense, it deserved limited weight as non-statutory mitigation.

State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
The defendant failed to prove cocaine impaired him or even that he used cocaine when he committed the robberies and murder. The trial court thus did not err in finding the defendant failed to prove significant impairment.

State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002)
The defendant presented minimal evidence that he used crack cocaine when he committed a robbery/murder. And he presented no evidence he was impaired during the event. The trial court thus did not err in finding the defendant failed to prove significant impairment under (G)(1).

For the same reasons, although the defendant presented some evidence of substance abuse, he offered no proof that his abuse caused him to commit the robberies/murder. Therefore, he failed to establish substance abuse as a non-statutory mitigating factor.

State v. (John Edward) Sansing, 206 Ariz. 232, 77 P.3d 70 (Sept. 24, 2003) (Ring)
(G)(1) NOT FOUND.  “Mere evidence of drug ingestion or intoxication is insufficient to establish statutory mitigation.  The defendant must also prove a causal nexus between his drug use and the offense.”  Sansing presented no expert testimony to support his assertion that his use of cocaine impaired his ability to control his physical behavior during the killing.   Furthermore, Sansing took steps shortly after the murder to hide the body and the victim’s truck so as to avoid detection, and he lied to the victim’s pastor when he made a telephone call to Sansing inquiring after the victim, thereby negating his claim that intoxication overwhelmed his ability to control his physical behavior.

State v. Murdaugh, 209 Ariz. 19, 97 P.3d 844 (2004) (Ring)
(G)(1) NOT FOUND.  The trial court considered defense expert testimony that Murdaugh evinced “various paranoid thoughts” featuring the belief that the government had placed a tracking device in his head.  The expert testified that Murdaugh also suffered from a personality disorder which may have been “amplified” by the methamphetamine use.  Counterbalancing this was significant evidence that Murdaugh took actions to cover up the crime and avoid detection.  He dismembered the body, taking care to remove the identifying teeth and finger pads and scattering them, and buried the parts separately.  He had others clean up the bloody garage where the murder was committed, and he attempted to sanitize and dispose of the victim’s van.   When Murdaugh learned that he was being tracked through the victim’s cell phone, he broke it into pieces and buried it.  Murdaugh also had the presence of mind to seek medical treatment when he received an injury cleaning his horse’s hoof after burying the victim’s body.

From this, the Supreme Court concluded, as did the trial court, that there was both a “complete lack of evidence of a causal connection between Murdaugh’s drug use and the murder” and there was evidence that Murdaugh made “numerous efforts to avoid detection.”  As a result, no rational jury would have found that Murdaugh established the (G)(1) mitigating circumstance.

State v. (Albert Martinez) Carreon, 210 Ariz. 54, 107 P.3d 900 (2005) Jury Trial/Indep. Review
(G)(1) NOT FOUND.  Carreon claimed that he used drugs on the day of the murder.  The court, however, found that because Carreon had failed to present any “substantial evidence of impairment” on the day of the crime, this factor 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. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
Although it is more likely that he suffered some mental or emotional damage due to a combination of his upbringing, physical and sexual abuse, physical deformity, and drug and alcohol use, Ellison failed to provide any specific evidence that his brain chemistry was actually altered by his past alcohol and drug abuse so as to cause or contribute to his participation in the murders. The Court found that Ellison failed to prove diminished capacity to appreciate the wrongfulness of his conduct.

State v. (Tracy Allen) Hampton, 213 Ariz. 167, 140 P.3d 950 (2006) Jury Trial/Indep. Review
Hampton’s long-time drug abuse, while mitigating, was accorded less weight because he did not tie it to his murderous behavior.

State v. (Darrel) Pandeli (Pandeli IV), 215 Ariz. 514, 161 P.3d 557 ( 2007) (Ring)
The defendant presented evidence that he began abusing drugs and alcohol when he was extremely young, in conjunction with his sexual abuse. The court found that he failed to demonstrate by a preponderance of the evidence that he was intoxicated on the night of the murder and that his substance abuse caused or contributed to his commission of the crime. This mitigation was therefore accorded minimal weight.

State v. (Julius Jarreau) Moore, 2009 WL 2194863__ Ariz. __, __ P.3d __ (July 23, 2009)
The record showed a temporal, spatial and motivational relationship between the murders.  The temporal element was satisfied by the surviving victim’s testimony that within seconds she saw Moore shoot her and Mata, and then heard multiple gunshots.  The other two victims, Guadalupe and Delia, were shot inside their house, while Mata was shot just outside the front door, satisfying the spatial element.  And because it was difficult to imagine a motive for the murders of Delia and Guadalupe unrelated to Mata’s murder, the motivational element was satisfied.

State v. Alvie Copeland Kiles, __ Ariz. __, 213 P.3d 174 (August 10, 2009)
The Court found that Kiles did not establish intoxication as a statutory mitigating circumstance, because he cleaned up the crime scene and disposed of the bodies of two of his victims. His chronic drug abuse did not overwhelm his ability to control his behavior.

The case referenced above:

KOMO NEWS

A Seattle driver accused of hitting and killing a pedestrian has reached a plea deal with prosecutors.

Rose M. Dorsey on Monday pleaded guilty to vehicular homicide in the death of Michael Lindsay, who was hit by a car while walking along an Interstate 5 exit ramp to James St. last October. The impact sent Lindsay over a guardrail and killed him.

Investigators said Dorsey fled the scene, but a witness followed her car to Tukwila, where it crashed into a semi truck. Dorsey has denied allegations of being drunk at the time of the incident.

The 46-year-old woman initially pleaded not guilty to vehicular homicide and felony hit-and-run in February. However, she changed her plea on Monday when prosecutors announced the hit-and-run charge will be dismissed.

Dorsey is scheduled to be sentenced on June 11. She faces up to 41 months in prison.

ANOTHER HIT AND RUN CASE

SEATTLE – A man has turned himself in in connection with a fatal hit-and-run accident that occurred early Sunday on I-405 in Kirkland.

The 30-year-old Bellevue man turned himself in at the Snohomish County Sheriff’s south precinct office in Mill Creek.

A pedestrian was struck and killed while trying to cross southbound Interstate 405 near the 124th Street off-ramp just before 2 a.m. Sunday.

The driver of a red Kia Spectra fled the scene without stopping. A witness followed the car until she got license plate information.

The Washington State Patrol says the suspect turned himself in on Sunday afternoon. He provided a full statement and turned the vehicle over.

The State Patrol says the man, originally from India, has been in the U.S. for about 2 1/2 years. He said he was unfamiliar with the United States legal system and was not sure what to do. After contacting a friend he realized that he should contact police.

The man was released to his family while prosecutors decide on possible charges.

Bottom Line: It’s open season on the runned downed and gunned downed. Further proof that if you are homeless-your life has no priority!

Footnote: Satterfield is an admitted homeless phobic.