State of Arizona v. Robert Allen Poyson

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

ROBERT ALLEN POYSON,
Appellant.

No. CR-98-0510-AP
Filed November 2, 2020

Appeal from the Superior Court in Mohave County
The Honorable Steven F. Conn, Judge
No. CR-96-865
DEATH SENTENCES AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III,
Solicitor General, Lacey Stover Gard, Chief Counsel, David R. Cole, Senior
Litigation Counsel, Capital Litigation Section, Phoenix, Attorneys for State
of Arizona

Emily Skinner, Arizona Capital Representation Project, Phoenix, Attorney
for Robert Allen Poyson
_______________

STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
GOULD, and MONTGOMERY joined*.
_______________

JUSTICE BOLICK, opinion of the Court:

¶1 The Ninth Circuit Court of Appeals found this Court erred on
independent review of Robert Allen Poyson’s death sentences and
remanded the case to federal district court with instructions to grant a writ
of habeas corpus unless the State initiates proceedings either to correct the
constitutional error in Poyson’s death sentences or to vacate the sentences.
We granted the State’s motion to conduct a new independent review and
now affirm Poyson’s death sentences.

BACKGROUND

¶2 As a child, Poyson suffered delayed development, physical
abuse, the tragic loss of the only true father figure he knew, and rape at the
age of eleven by a family friend. Following these traumatic events, he
struggled academically, abused alcohol and drugs, committed numerous
juvenile offenses, failed to maintain stable employment, and ultimately
ended up homeless. In 1996, Elliot and Leta Kagen met Poyson and let him
stay on their remote property in Golden Valley, Arizona, for $100 a month.
Poyson became angry with the Kagens after learning they charged him the
entire cost of their monthly rent and, along with fellow tenants Frank
Anderson and Kimberly Lane, plotted to kill the Kagens, their son, and
another tenant, Roland Wear, so they could steal Wear’s truck and flee to
Chicago.

¶3 Poyson’s first victim was Leta’s son, Robert Delahunt, whom
Poyson and Anderson beat and stabbed to death over the course of
forty-five minutes. Poyson then killed Leta in her bed with a single shot to
the face and beat Wear to death as he tried to flee. Poyson, Anderson, and
Lane proceeded to steal Wear’s truck and flee to Illinois, where they were
arrested. See State v. Poyson (“Poyson I”), 198 Ariz. 70, 74 ¶¶ 4–6 (2000).

*Justice John R. Lopez, IV and Justice James P. Beene have recused
themselves from this case.
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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

¶4 A jury convicted Poyson on three counts of first-degree
murder. Id. During sentencing, the trial court found three aggravating
factors beyond a reasonable doubt: (1) each murder was committed in
expectation of pecuniary gain, (2) the murders of Delahunt and Wear were
committed in an especially cruel manner, and (3) multiple homicides were
committed. Id. at 78 ¶ 23. Finding only one mitigating factor, cooperation
with law enforcement, the trial court sentenced Poyson to death. Id. at 73
¶ 1, 81 ¶ 41.

¶5 On direct review, this Court found additional mitigating
factors of age, family support, and potential for rehabilitation, but
nevertheless upheld Poyson’s sentence because the mitigating evidence
was not sufficiently substantial to call for leniency. Id. at 82 ¶ 48.

¶6 In 2003, Poyson filed a petition for post-conviction relief,
which the trial court denied. This Court denied his subsequent petition for
review. See Poyson v. Ryan (“Poyson III”), 879 F.3d 875, 886 (9th Cir. 2018),
cert. denied, 138 S. Ct. 2652 (2018). Poyson then filed a petition for a writ of
habeas corpus in the United States District Court for the District of Arizona,
which was denied. Poyson v. Ryan (“Poyson II”), 685 F. Supp. 2d 956, 961 (D.
Ariz. 2010). The Ninth Circuit reversed and granted relief, concluding that
habeas relief was warranted because this Court erred in its independent
review of the death sentences when considering Poyson’s mitigation
evidence. Poyson III, 879 F.3d at 890–93. The Ninth Circuit reasoned that
this Court’s application of the “unconstitutional causal nexus test” to
Poyson’s mitigation evidence of a troubled childhood and mental health
issues constituted error under Eddings v. Oklahoma, 455 U.S. 104 (1982), and
this error “had [a] ‘substantial and injurious effect or influence’” on the
sentencing decision. Poyson III, 879 F.3d at 890–93 (quoting McKinney v.
Ryan, 813 F.3d 798, 822 (9th Cir. 2015).

¶7 Consistent with State v. Hedlund, 245 Ariz. 467, 470 ¶ 4 (2018),
cert. denied, 140 S. Ct. 1270, we granted the State’s motion to conduct a new
independent review. We have jurisdiction under article 6, section 5(6) of
the Arizona Constitution and A.R.S. §§ 13-755(A), -4031, and -4032(4).

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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

DISCUSSION

I. Scope of Review

¶8 In granting the State’s motion, we ordered the parties to
submit briefing on “[w]hether the proffered mitigation is sufficiently
substantial to warrant leniency in light of the existing aggravation.” This
order reflects that our new independent review is focused on correcting the
constitutional error identified by the Ninth Circuit. See, e.g., Hedlund, 245
Ariz. at 470 ¶ 5.

¶9 The Ninth Circuit found error with our application of an
unconstitutional causal nexus test to exclude Poyson’s mitigating evidence
of childhood abuse and mental health issues. Thus, our independent
review is limited to considering the mitigating factors without the causal
nexus requirement and reweighing them against the established
aggravators in this case. See id.; State v. Styers, 227 Ariz. 186, 188 ¶ 7 (2011).

¶10 Poyson argues, however, that his case is non-final and
therefore he should be entitled to jury resentencing under Hurst v. Florida, 577 U.S. 92 (2016), and Ring v. Arizona, 536 U.S. 584 (2002). We recently
rejected this same argument in Hedlund, 245 Ariz. at 470 ¶ 6, and do so again
here, reaffirming the scope of review established in our prior cases. See, e.g.,
State v. McKinney (“McKinney I”), 245 Ariz. 225, 227 ¶ 6 (2018); Hedlund, 245
Ariz. at 470 ¶ 6; Styers, 227 Ariz. at 188 ¶ 7.

¶11 Poyson’s case became final in 2001 after the Supreme Court
denied his writ of certiorari. Poyson v. Arizona, 531 U.S. 1165 (2001). See
Styers, 227 Ariz. at 187 ¶ 5 (finding a “case is final when ‘a judgment of
conviction has been rendered, the availability of appeal exhausted,
and . . . a petition for certiorari finally denied . . . .’” (quoting Griffith v.
Kentucky, 479 U.S. 314, 321 n.6 (1987))). As such, Poyson’s case is here on
collateral review. See McKinney v. Arizona (“McKinney II”), 140 S. Ct. 702,
708 (2020) (“As a matter of state law, the reweighing proceeding in
McKinney’s case occurred on collateral review.”). Because his case became
final before Ring and Hurst were decided, Poyson is not entitled to the
benefit of jury resentencing in this collateral proceeding. See id. (“Ring and
Hurst do not apply retroactively on collateral review.”); Hedlund, 245 Ariz.
at 470 ¶ 6 (holding that jury resentencing proceedings under Ring do not
apply to cases deemed final).
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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

¶12 Finally, for the same reasons as in Hedlund, we decline
Poyson’s invitation to consider evidence developed after the original
proceedings as part of our independent review. Hedlund, 245 Ariz. at 470–
71 ¶ 9 (“[A]dditional evidence should be admitted first in the trial court
rather than in this Court.”).

II. Independent Review

¶13 In 2000, this Court upheld Poyson’s death sentences, finding
that the mitigation evidence was not “sufficiently substantial to call for
leniency.” Poyson I, 198 Ariz. at 82 ¶ 48. However, the Ninth Circuit
concluded this Court failed to consider mitigating evidence that was not
causally related to Poyson’s crimes. Poyson III, 879 F.3d at 889.
Accordingly, we conduct a new independent review of the mitigation
evidence and balance it against the aggravators.

Aggravator

¶14 The jury found, and this Court agreed on direct review, that
the State proved the existence of three statutory aggravators: A.R.S.
§ 13-703(F)(5) (murder committed for pecuniary gain); -703(F)(6) (murder
committed in an especially cruel manner); and -703(F)(8) (multiple murders
committed). 1 Poyson I, 198 Ariz. at 81 ¶ 40.

¶15 Poyson challenges the trial court’s finding of the (F)(5) and
(F)(8) aggravators, arguing they were not proven beyond a reasonable
doubt and that the plain language of § 13-755 requires us to reconsider
aggravating factors in our independent review. Because the Ninth Circuit
found no error in the aggravating factors, we reject this argument. See
Hedlund, 245 Ariz. at 470 ¶ 5 (review limited to mitigating factors and
reweighing them against the established aggravators); Styers, 227 Ariz.
at 188 ¶ 7 (“Because no error was found regarding these aggravating
factors, in this independent review we deem those factors established.”).

1 After Poyson’s sentencing, Arizona’s capital sentencing statutes were
reorganized and renumbered as A.R.S. §§ 13-751 to -759 (2009). 2008 Ariz.
Sess. Laws, ch. 301, §§ 26, 38–41 (2d Reg. Sess.). We cite to the previous
versions, as used in Poyson’s sentencing, for consistency.
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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

Mitigating Factors

¶16 Poyson “has the burden of proving mitigating factors by a
preponderance of the evidence.” Hedlund, 245 Ariz. at 471 ¶ 12. “When he
fails to do so, the asserted mitigation is entitled to no weight.” Id. When
assessing the weight and quality of a mitigating factor, we can consider how
the mitigating factor relates to the offense. Styers, 227 Ariz. at 189 ¶ 12. This
Court will consider all mitigating evidence presented without requiring a
causal nexus between the evidence and the crime. But “we may consider
the failure to show such a connection as we assess ‘the quality and strength
of the mitigation evidence,’” and may attribute less mitigating weight to
evidence that lacks a connection to the crime. Id. (quoting State v. Newell, 212 Ariz. 389, 405 ¶ 82 (2006)); see also Poyson III, 879 F.3d at 888.

¶17 In this proceeding, Poyson claims the existence of two
statutory mitigating factors and six non-statutory mitigating factors. For
each, we determine if the factor has been proved by a preponderance of the
evidence and then assign mitigating weight to that factor. In so doing, we
consider only the evidence presented at sentencing.

A. Impairment

¶18 Poyson claims the existence of the statutory mitigator of
impairment as well as non-statutory mitigating factors of substance abuse
and mental health issues. Because all these mitigating factors deal with
some aspect of the defendant’s impairment, we address them together.

¶19 Impairment is a statutory mitigator when “[t]he defendant’s
capacity to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired, but not so
impaired as to constitute a defense to prosecution.” A.R.S. § 13-751(G)(1).
Personality or character disorders do not typically satisfy this statutory
mitigator. State v. Medina, 232 Ariz. 391, 412 ¶ 103 (2013). Yet even when
mental health issues or substance abuse fail to satisfy this statutory
mitigator, we often consider such evidence as non-statutory mitigation.
State v. Prince, 226 Ariz. 516, 542 ¶ 113 (2011); State v. Moore, 222 Ariz. 1, 21
¶ 121 (2009).

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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

¶20 Substance abuse and mental health issues are entitled to little
weight when there is no connection to the crime and no effect on the
defendant’s ability to conform to the requirements of the law or appreciate
the wrongfulness of his conduct. Prince, 226 Ariz. at 542 ¶ 113 (noting
mental health mitigation is weighed in proportion to the defendant’s ability
to conform or appreciate the wrongfulness of his conduct); State v. Garcia, 224 Ariz. 1, 22 ¶ 104 (2010) (finding evidence of long-term drug addiction
entitled to little weight because no connection to crime or mental function
at time of murder).

¶21 We will not find that a defendant’s ability to conform or
appreciate the wrongfulness of his conduct was impaired when the
defendant’s actions were planned and deliberate, or when the defendant
seeks to cover up his crime. See Hedlund, 245 Ariz. at 472–73 ¶ 20 (finding
that evidence showing the defendant “acted lucidly in planning and
executing the crimes and in attempting to dispose of and hide the murder
weapon” undermines arguments of significant impairment); McKinney I,
245 Ariz. at 227 ¶ 10 (finding PTSD mitigation evidence insufficiently
substantial to warrant leniency when defendant’s actions during the
murder were “planned and deliberate”); State v. Bocharski, 218 Ariz. 476, 499
¶ 111 (2008) (finding weight of defendant’s alcohol impairment weakened
by his “purposeful steps to avoid prosecution”); State v. Rienhardt, 190 Ariz.
579, 591–92 (1997) (“[A] defendant’s claim of alcohol or drug impairment
fails when . . . 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.”).

¶22 On direct review, we agreed with the trial court’s conclusion
that Poyson did not prove the statutory impairment mitigator, finding
“scant evidence that [Poyson] was actually intoxicated on the day of the
murders.” Poyson I, 198 Ariz. at 79 ¶ 32. We also found Poyson’s mental
health issues did not control his conduct or impair his judgment and
therefore afforded them no mitigating weight. Id. at 81–82 ¶ 43.

¶23 As an initial matter, we reaffirm our finding that Poyson
failed to prove the existence of the (G)(1) statutory impairment mitigator.
Our independent review similarly finds “scant evidence” of Poyson’s
intoxication at the time of the murders. Although Poyson drank heavily the
night before the murders, he did not drink the day of the murders. On the
day of the murders, Poyson smoked marijuana to allay the effects of his
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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

hangover and claimed he had a PCP “flashback” during the murder of
Delahunt. But as we determined in our direct review, this evidence is
insufficient to show Poyson was substantially impaired when he murdered
Delahunt, Leta, and Wear. Poyson exhibited numerous examples of “goal-
oriented” behavior that belie a claim of substantial impairment. Indeed,
Poyson took preparatory steps, such as cutting the telephone wires to
prevent calls for help, checking the murder weapon to ensure proper
functioning, and obtaining bullets beforehand. Additionally, he made
conscious attempts to conceal his crimes after the fact, such as covering
Wear’s body with debris. These deliberate actions indicate that Poyson’s
drug and alcohol use neither rendered him unable to conform his conduct
to the requirements of the law nor left him unable to appreciate the
wrongfulness of his actions.

¶24 Poyson also provided evidence of long-term substance abuse
and mental health issues. As an adolescent, he had “a clear and chronic
history of substance abuse.” Before trial, he was variously diagnosed with
depression, polysubstance dependence, and antisocial personality
disorder. Dr. Celia Drake, who conducted a forensic evaluation of Poyson,
concluded that “there are a multitude of factors which have predisposed
Robert Poyson to his history of delinquency and subsequent criminal acts.”
Thus, the evidence shows that Poyson suffered from mental health issues,
and we find the non-statutory mitigating factor established. See Prince, 226
Ariz. at 542 ¶ 114. Nevertheless, no evidence developed at trial suggests
that Poyson’s mental health issues significantly impaired his capacity to
conform his behavior to the law or appreciate the wrongfulness of his
conduct. As explained above, supra ¶ 23, Poyson took deliberate and
calculated steps to ensure that his murderous plot and flight from Golden
Valley would be successful and that he would avoid capture by law
enforcement. Moreover, Poyson’s own statements demonstrate he knew
his actions were wrong, morally and legally. Accordingly, we assign little
weight to this mitigation evidence.

¶25 Ultimately, despite some evidence of drug abuse and his
mental health issues, the record indicates Poyson was capable of
conforming to the law and appreciated the wrongfulness of his conduct.
His actions were not intoxicated and impulsive but constituted a planned
and deliberate attack on his three victims over the course of a night. And
despite his low intelligence, he was able to flee across the country and

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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

briefly evade capture by law enforcement. As a result, we give little weight
to his drug use or mental health issues as mitigation evidence.

B. Age

¶26 Poyson was nineteen years old at the time of the murders. A
defendant’s age can be a statutory mitigating factor. A.R.S. § 13-751(G)(5).
The mitigating weight of a defendant’s age depends upon the “defendant’s
level of intelligence, maturity, involvement in the crime, and past
experience.” McKinney I, 245 Ariz. at 227 ¶ 11 (quoting State v. Jackson, 186
Ariz. 20, 30 (1996)). As such, the mitigating weight is less when the
defendant was a major participant in the crime or has a substantial criminal
history. Id. at 227–28 ¶¶ 11–12 (attributing little mitigating weight to
twenty-three-year-old defendant who took a leading role in executing and
planning burglaries leading to murder); State v. Hargrave, 225 Ariz. 1, 18
¶ 80 (2010) (“We discount age as a mitigating factor when the defendant
had a significant criminal record or actively participated in the murders.”);
State v. Womble, 225 Ariz. 91, 104 ¶¶ 57–58 (2010) (finding significance of a
nineteen-year-old defendant diminished when he is a major participant and
helps plan the crime in advance).

¶27 While the trial court found Poyson failed to establish the
(G)(5) mitigator, this Court attributed some mitigating weight to this factor
on direct review. Poyson I, 198 Ariz. at 81 ¶ 39. However, this weight was
ultimately diminished by Poyson’s criminal history, as well as his extensive
participation in these crimes. Id. A review of the record leads us to
conclude the same today.

¶28 First, Poyson had a long history of adjudicated offenses as a
juvenile, including sexual assault of a minor and multiple violent offenses.
Second, despite Poyson now claiming he was manipulated by Anderson,
his own testimony clearly demonstrates he was a major participant in the
murders of Delahunt, Leta, and Wear. Regarding the murder plans, he
claimed, “I came up with most of it but [Anderson] came up with a little
bit.” Poyson was the one who searched for murder weapons beforehand
and who devised a plan to goad Anderson into killing Delahunt when
Anderson hesitated. Ultimately, Poyson delivered the fatal blow to each of
his victims.

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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

¶29 Given Poyson’s substantial role in these murders and his
previous juvenile offenses, we afford his age little mitigating weight.

C. Abusive Childhood

¶30 When childhood abuse is established by a preponderance of
the evidence, its mitigating weight depends on the age of the defendant at
the time of the murder and the causal connection between the abuse and
crime committed. Prince, 226 Ariz. at 541 ¶ 109. The mitigating weight of
childhood abuse may diminish as a defendant ages. See State v. Hidalgo, 241
Ariz. 543, 558 ¶ 68 (2017) (defendant did not “convincingly” explain how
admittedly “cruel and traumatic” childhood conditions caused murders
committed by twenty-three-year-old adult). The mitigating weight of
childhood abuse is also reduced when there is no causal link between the
abuse and the murder. Hedlund, 245 Ariz. at 473 ¶ 25 (assigning evidence
of defendant’s abusive childhood little weight when it did not affect
defendant’s ability to conform his behavior to the law or render him
“unable to differentiate right from wrong”). And evidence that murders
were planned or deliberate and not motivated by passion or rage decreases
the mitigating effect of prior childhood abuse. State v. Cropper, 223 Ariz.
522, 529 ¶ 30 (2010); State v. Armstrong, 218 Ariz. 451, 465 ¶¶ 75–76 (2008).

¶31 The trial court found Poyson proved he suffered from a
dysfunctional childhood, physical abuse, mental abuse, neglect, sexual
abuse, and family tragedy. The record establishes that as a child, Poyson
was subjected to physical abuse by his caregivers, was forced to consume
alcohol at the age of three or four, was raped at eleven years old by a family
friend, and had an unstable childhood with multiple stepfathers.
Following the suicide of a stepfather he had grown close to and the sexual
assault, Poyson began to struggle academically, frequently got into trouble,
and started drinking alcohol. Evaluations taken while he was a juvenile
and undergoing treatment attributed his antisocial behavior to his chaotic
upbringing and childhood abuse. During trial, Poyson introduced a report
from Dr. Drake, who attributed his behavioral problems and need for
attention to his inconsistent parenting and the lack of treatment he received
as a juvenile.

¶32 Because Poyson was only nineteen when he committed the
triple murder, the childhood abuse he endured is temporally proximate to
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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

his crimes. However, the causal link is weak. While Poyson’s situation and
mental health issues may be attributed to his childhood abuse, any
connection is weakened by the fact that the murders were not spontaneous
or motivated by rage or passion but were planned, deliberate, and
calculated. Poyson planned the murders ahead of time with Anderson and
Lane. He engaged in planning and preparation by finding ammunition to
use, disabling the Kagens’ telephone so they could not call for help, and
tricking Delahunt to join in their plan so he would not expose them. Even
after the murders, Poyson demonstrated his ability to appreciate the
wrongfulness of his conduct was not impaired by seeking to conceal Wear’s
body and suggesting Anderson get rid of Wear’s truck so they would not
be caught.

¶33 While Poyson’s abusive childhood is given some mitigating
weight because of his age, its weight is not substantial because Poyson has
not proved his abuse impacted his ability to conform his behavior to follow
the law or to know right from wrong.

D. Remorse and Cooperation with Law Enforcement

¶34 When established, the presence of remorse can serve as a non-
statutory mitigating factor, Prince, 226 Ariz. at 543 ¶ 121, as can admissions
of guilt or cooperation with law enforcement. State v. Miller, 186 Ariz. 314,
326 (1996). But when the sincerity of the remorse is in question, its
mitigating weight is reduced. Medina, 232 Ariz. at 413 ¶¶ 112–113 (finding
sincerity of defendant’s remorse doubtful when grounded in fear of being
caught); Cropper, 223 Ariz. at 529 ¶¶ 27–28 (sincerity of remorse doubted
when defendant’s behavior contradicted his expressions of remorse).
Similarly, admissions of guilt or cooperation with law enforcement are
afforded little mitigating weight when the defendant has nothing to lose by
cooperating or confessing. See, e.g., State v. Murdaugh, 209 Ariz. 19, 36 ¶ 84
(2004) (concluding evidence of cooperation entitled to little mitigating
weight when defendant agreed to cooperate only after learning police
found the crime scene).

¶35 During sentencing, the trial court found Poyson established
he was remorseful by a preponderance of the evidence but that his remorse
was not mitigating because it did not stop him from going through with a

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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

procession of murders and did not lead him to turn himself in. On direct
review, this Court agreed. Poyson I, 198 Ariz. at 82 ¶ 45.

¶36 In fact, the record is replete with evidence that Poyson had
some remorse for the murders he committed. Poyson stated he had second
thoughts about going through with it, even at the beginning of the spree
while killing Delahunt, until Anderson talked him back into it. During his
interview with police, Poyson explicitly expressed remorse for what he had
done, especially as to the murder of Delahunt, with whom he had a
particularly close relationship. Both officers who interviewed Poyson, as
well as his mitigation specialist, testified that they believe Poyson had
remorse for what he did. Ultimately, Poyson’s remorse is mitigating but
pales in significance when compared to the strong aggravating factors.

¶37 Regarding Poyson’s cooperation with law enforcement, both
the trial court and this Court on direct review found his cooperation to be
mitigating. Id. ¶ 48. The record demonstrates that while on the run with
Anderson and Lane, Poyson wanted to turn himself in. But once he was
finally apprehended, he initially falsely downplayed Lane’s involvement in
the murders while confessing to his part in the murders. Given that Poyson
had little to gain from not cooperating and that he originally sought to
conceal Lane’s involvement in the murders, his confessions and
cooperation are given little mitigating weight.

E. Potential for Rehabilitation and Good Behavior

¶38 The potential for rehabilitation can be considered a mitigating
factor. State v. Villalobos, 225 Ariz. 74, 82 ¶ 34 (2010). During sentencing,
the trial court determined there was insufficient evidence to prove this as a
mitigating factor. But on direct review, this Court disagreed and found the
rehabilitation factor was entitled to some mitigating weight because expert
testimony showed Poyson was able to be rehabilitated in institutional
settings. Poyson I, 198 Ariz. at 82 ¶ 46. We find no reason to disagree with
that conclusion.

¶39 Although we do not consider evidence that was not before the
trial court on direct review, Poyson now wants us to consider the mitigating
weight of his good behavior in prison and his status as a model inmate. He
cites Skipper v. South Carolina, 476 U.S. 1, 7 (1986), for the premise that this
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STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

Court cannot exclude and refuse to consider evidence of good behavior in
prison. Poyson also cites our previous decision in State v. Richmond, where
we found that the defendant’s good behavior in prison was sufficiently
mitigating to warrant leniency. 180 Ariz. 573, 580–81 (1994), abrogated on
other grounds by State v. Mata, 185 Ariz. 319 (1996). Yet Richmond is
distinguishable. The procedural posture of Richmond was significantly
different; the Court was considering evidence presented in a prior
resentencing, not new evidence developed in post-conviction proceedings.
See id. at 580 n.8. Moreover, the defendant presented “quite persuasive and
most unusual” testimony from guards and prison counselors who gave
specific examples about how the defendant had gone out of his way to
better not only himself but also the lives of his fellow inmates. Id. at 580–
81. Here, Poyson has not presented such compelling evidence of reform
beyond being a model prisoner. Furthermore, in more recent cases, this
Court has assigned very little mitigating weight to good behavior because
inmates are expected to be good. See, e.g., State v. Payne, 233 Ariz. 484, 518
¶ 157 (2013); State v. Kiles, 222 Ariz. 25, 42 ¶ 89 (2009); State v. Dann, 220
Ariz. 351, 375 ¶ 141 (2009). Thus, even if we consider Poyson’s good
behavior in prison to be mitigating, we would only assign it minimal
weight.

F. Family Support

¶40 Family ties and support may be mitigating, but general
statements of support are entitled to little weight. Medina, 232 Ariz. at 413
¶ 111; State v. Jones, 197 Ariz. 290, 313 ¶ 77 (2000). While the trial court
found Poyson failed to establish meaningful family support, on direct
review this Court found evidence of family support from the testimony,
cooperation, and written letters of Poyson’s relatives but accorded it
minimal mitigating weight. Poyson I, 198 Ariz. at 82 ¶ 47. We do the same
today.

Leniency is Not Warranted

¶41 When conducting independent review, “we must consider
the aggravator[s] . . . and all mitigating evidence presented to determine
whether the mitigation evidence individually or cumulatively is
sufficiently substantial to call for leniency.” Hedlund, 245 Ariz. at 475 ¶ 34.

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STATE OF ARIZONA V. ROBERT ALLEN POYSON
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“We consider the quality and the strength, not simply the number, of
aggravating and mitigating factors.” Hidalgo, 241 Ariz. at 558 ¶ 69.

¶42 Here, all three aggravating factors are particularly weighty.
The cruelty aggravator is “entitled to great weight.” McKinney I, 245 Ariz.
at 228 ¶ 15. The evidence of the prolonged and brutal way Poyson
murdered both Delahunt and Wear strongly supports assigning
considerable weight to this aggravator. The pecuniary gain aggravator is
also especially strong and “weighs heavily in favor of a death sentence,” id.
¶ 14, when pecuniary gain is the “catalyst for the entire chain of events
leading to the murders.” State v. McKinney, 185 Ariz. 567, 584 (1996). See
also Hedlund, 245 Ariz. at 475 ¶ 34. Given that the murders of Delahunt,
Leta, and Wear were not simply incidental to the stealing of Wear’s truck
but were an integral part of the plan, the pecuniary gain aggravator is
especially strong here.

¶43 Of the three aggravators, the strongest is the multiple
homicides aggravator. Compared to other aggravators, we have
consistently given “extraordinary weight” to this aggravator. See, e.g.,
Hidalgo, 241 Ariz. at 558 ¶ 69; State v. Garza, 216 Ariz. 56, 72 ¶ 81 (2007).
Even when the multiple homicides aggravator is the only aggravator
weighed against multiple mitigating factors, we have found the mitigation
insufficient to warrant leniency. See, e.g., Moore, 222 Ariz. at 23 ¶¶ 137–38
(finding significant mitigating evidence of age and drug abuse insufficient
to warrant leniency in light of multiple murders aggravator); Dann, 220
Ariz. at 376–77 ¶¶ 137–39, 145–49, 152 (finding mitigating evidence of
childhood abuse, impairment, and family support insufficient to warrant
leniency in light of sole aggravator of multiple murders); Armstrong, 218
Ariz. at 466 ¶ 83–84 (similar).

¶44 In arguing for leniency, Poyson likens his case to three
decisions where we reduced the death sentence to a life sentence: Bocharski;
State v. Roque, 213 Ariz. 193 (2006); and Richmond. Yet these cases can easily
be distinguished. First, unlike Poyson, all the defendants in these cases
were convicted and sentenced for only one count of murder and did not
have the multiple murder aggravator. Bocharski, 218 Ariz. at 481 ¶ 1; Roque,
213 Ariz. at 203 ¶ 9; Richmond, 180 Ariz. at 575. Considering the
extraordinary weight we apply to this aggravator, this is a significant
difference. Second, each of these cases involve the presence of only one

14

STATE OF ARIZONA V. ROBERT ALLEN POYSON
Opinion of the Court

aggravator, unlike Poyson’s case involving three, and none of the
aggravators in Poyson’s case are present in these other cases. Bocharski, 218
Ariz. at 499 ¶ 112; Roque, 213 Ariz. at 231 ¶ 170; Richmond, 180 Ariz. at 580.

¶45 Finally, the mitigating evidence in these other cases had much
more support and weight than the evidence Poyson presented. In Bocharski,
we noted how the evidence of the defendant’s childhood abuse was unique
in its depth and that experts specifically testified that the defendant’s
childhood abuse helped cause the defendant to commit murder. 218 Ariz.
at 498–99 ¶¶ 109–10. Unlike Bocharski, Poyson had no expert testify in
definite terms as to whether his childhood abuse would have caused him
to commit murder. In Roque, we gave substantial mitigating weight to the
defendant’s mental health issues, as all four mental health experts who
testified agreed his mental health issues impaired his capacity to conform
with the law. 213 Ariz. at 230–31 ¶ 168. In addition to Poyson lacking such
a definite diagnosis, the record actually demonstrates that Poyson’s
capacity to conform to the law was not impaired. And in Richmond, we
found the defendant’s reformation in prison to be mitigating as the
defendant presented substantial evidence of how he bettered himself and
the lives of other inmates from both prison counselors and guards. 180
Ariz. at 580–81. But beyond some evidence of self-improvement and a light
disciplinary history, Poyson has not presented any similar substantial
evidence.

¶46 Having considered all the mitigating evidence, we conclude
it is not sufficient to warrant leniency in light of the three aggravators
proven by the State, especially given the extraordinary weight of the
multiple murders aggravator and the particular weightiness of the other
two aggravators. See McKinney I, 245 Ariz. at 227 ¶¶ 7–10 (affirming
defendant’s death sentence upon weighing pecuniary gain and especially
cruel aggravators against childhood abuse and mental health mitigators);
Hargrave, 225 Ariz. at 19 ¶ 86 (affirming defendant’s death sentence
involving same three aggravators as Poyson); State v. Boggs, 218 Ariz. 325,
340–342 ¶¶ 73–83, 344 ¶¶ 94–95 (2008) (affirming death sentence in light of
same three aggravators weighed against similar mitigation evidence).

CONCLUSION

¶47 We affirm Poyson’s death sentences.

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