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State v. Jones6/15/2000
der the influence at the time of the murders, but Dr. Caffrey even noted that Jones committed other crimes when he was not on drugs. The state said it best in its reply to the mitigation memorandum: "Robert Jones is not a murderer because of drugs--he is a murderer who has used drugs in the past." (R.O.A. at 791.) For these reasons, the trial court properly found that Jones did not prove his incapacity to understand his crimes.
Jones also claims his personality disorder prevented him from understanding his crime. An antisocial personality disorder, combined with other factors, may be a mitigating circumstance. See State v. McMurtrey I, 136 Ariz. 93, 102, 664 P.2d 637, 646 (1983). Dr. Caffrey's report concludes that Jones did, in fact, have such a disorder. The trial court, however, held that no evidence showed this factor was a major and contributing cause of Jones's actions. Character or personality disorders alone are not sufficient to constitute significant impairment. See State v. Murray, 184 Ariz. 9, 42, 906 P.2d 542, 575 (1995). The defendant must also show that he was substantially impaired. Here, Jones made no showing that his condition significantly impaired his ability to understand the crimes. Furthermore, this Court has rejected the substantial impairment argument for defendants with more serious disorders than Jones. See, e.g., State v. Laird, 186 Ariz. 203, 208, 920 P.2d 769, 774 (1996) (rejecting the G.1 factor because, for a defendant with serious mental problems, he still understood the significance of his actions). For these reasons, the trial court properly found that Jones did not prove the G.1 factor by a preponderance of the evidence.
Jones next argued in his pre-sentence mitigation memorandum that he had proved the G.3 factor, relatively minor participation, by a preponderance of the evidence. Jones argued that the primary evidence presented at trial came from David Nordstrom and Lana Irwin. David Nordstrom had an obvious motive to lie to protect himself and his brother. Lana Irwin was unreliable because she could not remember events clearly. For these reasons, Jones argued that it is possible he never actually pulled the trigger in any of the murders. Scott Nordstrom could have done them all and simply blamed them on Jones. The evidence, however, suggests otherwise. Testimony from the surviving witnesses at the Moon Smoke Shop indicated that the two suspects were shooting at different times in different places. Thus, Jones could not have been a "minor participant" as required under the language of G.3. Furthermore, the jury found the evidence sufficiently credible to convict Jones. In the absence of any evidence that Jones was not a full participant in the crimes, the trial court properly found that the G.3 factor had not been proven by a preponderance of the evidence.
C.
Finally, this Court independently re-weighs the trial court's findings concerning non-statutory mitigation factors, which also must be proven by a preponderance of the evidence.
The trial court held that although the defendant was able to relate to others in a socially acceptable way, given his criminal history, lack of employment history, and Dr. Caffrey's report, Jones did not prove the good character factor. Jones presented testimony from two witnesses who stated that he was extremely polite. Testimony concerning good character, however, is not a mitigating factor when contradicted by evidence that the defendant has been involved in other crimes. See State v. Gonzales, 181 Ariz. 502, 515, 892 P.2d 838, 851 (1995). Here, Jones committed crimes as a juvenile, and has been in and out of prison for felony convictions since that time. In fact, he committed the
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