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State v. Stokley

6/27/1995

avior during post-sentence incarceration has been recognized as a possible mitigating factor, Watson, 129 Ariz. at 63-64, 628 P.2d at 946-47, we, like the trial court, reject it here for pretrial and presentence incarceration. See State v. Lopez, 175 Ariz. 407, 416, 857 P.2d 1261, 1270 (1993) ("Defendant would be expected to behave himself in county jail while awaiting [sentencing]."), cert. denied, 128 L. Ed. 2d 221, 114 S. Ct. 1578 (1994).


11. Lack of Future Dangerousness if Confined to Prison


Although defendant presented some evidence that he would no longer be dangerous if confined to prison for life, we find that he fails to prove this by a preponderance of the evidence, particularly in view of his history of violence and threats of violence and his actions in this case.


12. Felony Murder Instruction


Defendant claims that a felony murder instruction was given and that this should be considered in mitigation. See supra part V(B) (statutory mitigation). However, there was no felony murder instruction.


13. Remorse


Although remorse may be considered in mitigation, Brewer, 170 Ariz. at 507, 826 P.2d at 804, State v. Tittle, 147 Ariz. 339, 344, 710 P.2d 449, 454 (1985), defendant failed to prove by a preponderance of the evidence that he was remorseful. A criminal Justice consultant testified that defendant had feelings of remorse. In addition, during defendant's statement to the court prior to sentencing, defendant stated,


I think it's very clever the way I have been made a scapegoat in this case. I do not deny culpability, but there was no premeditation on my part. What I am guilty of is being an irresponsible person for most of my life, running from responsibility, living in a fantasy world and it was my irresponsibility on the night that this incident occurred that involved me in the incident. There is no words that can express the grief and the sorrow and the torment I have experienced over this, but I am just going to leave everything in the hands of God because that's where it is anyway.


Defendant's statement and the testimony of the consultant were inadequate to prove the mitigating circumstance by a preponderance of the evidence.


14. Lack of Evidence Showing that Defendant Actually Killed or Intended to Kill Mary


Although defendant claims that there was insufficient evidence to show that he killed or intended to kill Mary, the evidence, including his own statement to police, proves that he and Brazeal agreed that the girls must be killed. In his statement to the detective, defendant acknowledged the agreement to kill the girls and admitted stabbing both girls. Clearly, he was an active participant in the killing of both girls. The jury, in its guilty verdict, and the trial court, in its special verdict, so found. After a review of the entire record, we agree that defendant personally killed Mandy and, at the least, intended that Mary be killed.


Conclusion


There are three statutory aggravating circumstances. There are no statutory mitigating circumstances. We have considered the nonstatutory mitigating factors of lack of prior felony record and his mental condition and behavior disorders. We find the mitigation, at best, minimal. Certainly, there is no mitigating evidence sufficiently substantial to call for leniency. We have searched the record for fundamental error and found none. The convictions and sentences are affirmed.


James Moeller


Vice Chief Ju

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