State v. Jones6/15/2000
ided a sufficient basis for finding the F.8 factor for the other one, and that each of the Fire Fighters Union Hall murders provided a sufficient basis for finding the factor for each other. However, because this finding essentially counts the same murders previously counted in the F.1 analysis, we find the trial court erred. See State v. Styers, 177 Ariz. 104, 116, 865 P.2d 765, 777 (1993) (noting that the trial court may not consider the same fact to satisfy different aggravating factors). Although it is mathematically possible to satisfy both the F.1 and F.8 factors in this case without ever counting a single murder twice, we cannot determine from the record whether the trial judge actually did so. We find, however, that even if the trial judge did double count the murders under the F.1 and F.8 factors, on this record, the error is harmless.
First, either the F.1 or F.8 factor, once combined with the F.2, F.5, and F.7 factors, outweighs the mitigating factors for sentencing, regardless of whether the other is applied. Second, as we have noted, it is possible to mathematically apply the murders to satisfy both the F.1 and F.8 factors without double counting any single murder. The clear facts show that Jones committed four of the six murders, and aided in the other two. For these reasons, we find that even if the trial court improperly double-counted the murders for purposes of finding the F.8 factor, any error was harmless.
B.
Although Jones did not raise any issues regarding mitigating factors on appeal, we review them independently here. The defendant must prove the mitigating factors in A.R.S. § 13-703 by a preponderance of the evidence. See State v. Laird, 186 Ariz. 203, 207-08, 920 P.2d 769, 773-74 (1996).
In his pre-sentence mitigation memorandum, Jones argued that he did not have the capacity to appreciate the wrongfulness of his conduct. See A.R.S. § 13-703.G.1. Although a defendant must prove that his ability to conform to the law was significantly impaired, see State v. King, 180 Ariz. 268, 288-89, 883 P.2d 1024, 1044-45 (1994), the impairment need not have been so severe that it constitutes a complete defense to the crime. See State v. Richmond, 114 Ariz. 186, 197, 560 P.2d 41, 52 (1976). In this case, Jones argued (1) that his continual drug use impaired his ability to appreciate the nature of his crimes, and (2) that his antisocial personality disorder did the same.
Voluntary intoxication may be considered a mitigating factor if it impairs the defendant's ability to comprehend the nature of his crimes. See State v. Kiles, 175 Ariz. 358, 374, 857 P.2d 1212, 1228 (1993). Furthermore, voluntary intoxication may be a factor when the defendant has a long history of substance abuse. See State v. Jones, 185 Ariz. 471, 489, 917 P.2d 200, 218 (1996). Here, the evidence presented shows that Jones has used drugs since he was introduced to them in his early teens by his stepfather. Furthermore, Dr. Jill T. Caffrey, a neuropsychologist, found Jones had an amphetamine dependence. Yet, under the evidence presented at trial, Jones drank only a small amount of beer on the night of the Moon Smoke Shop murders, and nothing at all on the night of the Union Hall murders. Although Jones had a long history of drug dependence, this fact alone does not meet the statutory mitigation requirement when the defendant is not actually under the influence of drugs at the time of the killings. See State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996) (holding that the defendant could not present evidence of drug abuse because there was no evidence that the he was under the influence at the time of the crime). Not only did Jones fail to present any evidence that he was un
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