c. Arizona Cases.

• Jurisdiction: Arizona

i. Two Tasks in Considering Mitigation.

(1) In considering evidence offered in mitigation, the trial court must make two determinations: (1) whether the defendant proved the circumstance by a preponderance of the evidence, and (2) whether the circumstance is in some way mitigating. Ramirez, 178 Ariz. at 131; accord Lee, 189 Ariz. at 607; White, 194 Ariz. at 350, ¶ 19; Clabourne, 194 Ariz. at 388, ¶ 39.

ii. Duty to Consider Mitigation.

(1) The sentencing judge must consider all relevant evidence offered in mitigation. Correll, 148 Ariz. at 482; Fierro, 166 Ariz. at 551; Gulbrandson, 184 Ariz. at 69.

(a) The trial court must consider all possible mitigation. Schackart, 190 Ariz. at 254.

(2) In Djerf, the Court said that Lockett and Eddings require the sentencer to consider proffered mitigation. 191 Ariz. at 598, ¶ 61.

(3) The reason the sentencer must consider all relevant evidence presented in mitigation is to ensure that the death penalty is not imposed in spite of factors that may call for a less severe penalty. McMurtrey, 136 Ariz. at 102.

(4) No preclusion.

(a) Quoting from Lockett, the Court in Sharp said the trial judge must not be precluded from considering, as a mitigating factor, any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. 193 Ariz. at 425, ¶ 45

(b) In Towery, the Court noted that Penry had held that a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as a basis for a sentence less than death. 186 Ariz. at 189.

iii. Extent of Relevant Mitigation.

(1) When considering possible mitigating circumstances, a court must consider any aspect of the defendant’s character or record and any circumstances of the offense relevant to determining whether the death sentence should be imposed. Kiles, 175 Ariz. at 373; accord Stokley, 182 Ariz. at 519; Murray, 184 Ariz. at 38; Gulbrandson, 184 Ariz. at 69; Spreitz, 190 Ariz. at 148.

(a) Relevant to determining whether a sentence less severe than death is appropriate. McCall, 139 Ariz. at 162; accord West, 176 Ariz. at 449; Spears, 184 Ariz. at 293; Jones, 185 Ariz. at 489; Hyde, 186 Ariz. at 282; Clabourne, 194 Ariz. at 388, ¶ 39.

(i) The Court has at times cited Lockett to this effect. E.g., Van Adams, 194 Ariz. at 422, ¶ 52.

(2) The sentencer must consider all statutory and relevant nonstatutory mitigating factors

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