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                 THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Hillsborough - northern judicial district
No. 2008-945


                        THE STATE OF NEW HAMPSHIRE

                                           v.

                           MICHAEL ADDISON
              (CAPITAL MURDER — PROPORTIONALITY REVIEW)

                          Argued: January 15, 2015
                         Opinion Issued: April 30, 2015

      Joseph A. Foster, attorney general (Jeffery A. Strelzin, senior assistant
attorney general, and John J. Kennedy, assistant attorney general, on the brief,
and Mr. Strelzin orally), for the State.


      David M. Rothstein, deputy director public defender, and Christopher M.
Johnson, chief appellate defender, of Concord, on the brief, and Mr. Rothstein
orally, for the defendant.

       PER CURIAM. In 2008, the defendant, Michael Addison, was convicted
of the 2006 capital murder of Manchester Police Officer Michael Briggs and
sentenced to death. We subsequently affirmed the defendant’s conviction for
capital murder, concluding that his sentence was not imposed under the
influence of passion, prejudice or any other arbitrary factor, and that the
evidence was sufficient to support the jury’s findings of aggravating
circumstances. State v. Addison (Capital Murder), 165 N.H. 381, 412 (2013);
see RSA 630:5, X-XII (2007). At this final stage of our mandatory review, we
are required by statute to address “[w]hether the sentence of death is excessive
or disproportionate to the penalty imposed in similar cases, considering both
the crime and the defendant.” RSA 630:5, XI(c). We conclude that the
defendant’s sentence is neither excessive nor disproportionate and,
accordingly, affirm his sentence of death.

       In State v. Addison, 160 N.H. 732 (2010) (hereinafter, Proportionality
Framework), we set forth the parameters and mechanics of comparative
proportionality review under RSA 630:5, XI(c). After reviewing the relevant
jurisprudential background and the specific language of RSA 630:5, XI(c), we
held that “a death penalty is ‘excessive or disproportionate’ if it is aberrant
from, or substantially out of line with, a pattern of jury verdicts which
demonstrate that juries generally do not impose death in similar cases.”
Proportionality Framework, 160 N.H. at 761. “This appellate monitoring
function serves to ensure that defendants will not incur a death sentence that
is arbitrary and capricious, or wanton and freakish, in relation to penalties
imposed by juries in similar cases, considering both the crime and the
defendant.” Id.

      We construed the procedural and substantive boundaries of “similar
cases” as limited to those cases in which the defendant committed the same
kind of capital murder; a separate sentencing hearing occurred; the jury found
predicate aggravating factors; and the penalty imposed was either death or life
imprisonment without possibility of parole. Id. at 769. As to the mechanics of
comparative proportionality review, we adopted a precedent-seeking approach,
under which we would examine each case in the inventory of similar cases
“considering both the crime and the defendant.” Id. at 772 (quotation omitted).

      In doing so, we will determine whether a germane jury pattern
      emerges demonstrating that the defendant’s death sentence is
      excessive or disproportionate; that is, whether juries generally do
      not impose a death sentence in capital murder cases similar to the
      defendant’s case. This process is not limited to a comparison of
      the aggravating and mitigating factors between the defendant’s
      case and each case in the inventory, or a calculation of the number
      of death and life imprisonment verdicts. Rather, we will review the
      particular facts underlying the substantive characteristics of the
      case (the nature and circumstances of the capital murder, the
      aggravating factors, and any mitigating factors). These
      characteristics found by the jury establish the unique footprint of
      the case within which the jury considered the particular
      circumstances of the crime and the character and background of


                                       2
      the particular defendant to decide whether to impose the death
      penalty or life imprisonment without possibility of parole.

Id. (citation omitted).

       Noting that our ability to conduct comparative proportionality review in
this case is complicated by the practical reality that no other defendant has
been convicted of a capital crime and sentenced to death in this state since the
legislature adopted the current death penalty statute in 1977, we concluded
that we would consider published opinions from out-of-state cases “to the
extent such comparison would be meaningful.” Id. at 779. Because the
defendant in any comparison case must have killed a law enforcement officer
acting in the line of duty, the capital murder case of State v. Brooks is not
included in the inventory of similar cases. See State v. Brooks, 164 N.H. 272,
275-76 (2012) (defendant convicted of capital murder involving solicitation,
capital murder in the course of kidnapping, first degree murder as an
accomplice, and conspiracy to commit capital murder).

      Comparative proportionality review is not a constitutional mandate, but,
rather, is a creature of statute. See Pulley v. Harris, 465 U.S. 37, 45-46 (1984).
Our mandatory appellate review

      “serves as a check against the random or arbitrary imposition of
      the death penalty. In particular, the proportionality review
      substantially eliminates the possibility that a person will be
      sentenced to die by the action of an aberrant jury. If a time comes
      when juries generally do not impose the death sentence in a
      certain kind of murder case, the appellate review procedures
      assure that no defendant convicted under such circumstances will
      suffer a sentence of death.”

Proportionality Framework, 160 N.H. at 744 (quoting Gregg v. Georgia, 428
U.S. 153, 206 (1976)). Our task under proportionality review “[is] not to
determine whether the capital case before [us] in some way [is], on a scale of
moral blameworthiness, roughly equivalent to all other capital cases and,
absent such rough equivalence, to reverse the sentence.” Id. at 761 (quotation
omitted). “Nor [is] that review considered to require that the capital case before
the court must affirmatively be shown, on such a scale, to have been
quantitatively different from all other cases in which the death penalty was not
imposed and, absent such an affirmative showing, to reverse the sentence.” Id.
(quotation omitted). Rather, the question before us is whether the death
penalty imposed in this case is “aberrational . . . with respect to similar cases.”
Id. (quotation omitted).

      Comparative proportionality review is a question of law that we decide de
novo. Id. at 775. Neither party bears the burden of proof. Id. We conduct our
                                         3
review in accordance with the analysis adopted in the Proportionality
Framework decision, with additional modification and clarification as explained
below.

       The defendant asserts that we should reassess three areas of the
Proportionality Framework decision, including: (1) the limitation on reviewing
only cases which resulted in a published opinion; (2) the reliance upon
mitigating factors in comparison cases; and (3) the rejection of the “quantitative
analysis” approach. As to the published decision limitation, the defendant
suggests that, if we have enough information to conduct a comparison,
unpublished opinions should not be excluded from the comparison universe.
The State “does not categorically reject the notion that this Court might look to
sources other than published out-of-state opinions,” asserting that “[w]hile a
decision that has not been designated for publication may not carry legal
precedence, the underlying facts recounted in the opinion are no less valuable
in conducting a comparative proportionality review.” We agree with the parties
and will consider unpublished opinions accessible on either the Westlaw or
Lexis legal databases, to the extent that such opinions contain sufficient
information that they are meaningful for purposes of comparative
proportionality review.

       Regarding mitigating factors in comparison cases, the defendant asks us
to “reassess the use of mitigating evidence as a comparative tool” because
“[n]either the published opinions that serve as the Court’s primary sources for
information, nor newspaper articles, typically include detailed summaries of
mitigating evidence.” He argues that comparing mitigating factors requires
sufficient information to permit this court to assess the correlation between
different categories of mitigating factors and either a life or death sentence, and
that it is “not possible to consistently obtain the details of the mitigation
evidence presented in the majority of out-of-state capital murder cases from
either published opinions or other sources.” The State disagrees, arguing that
“[t]he defendant’s effort to jettison mitigation evidence from the proportionality
analysis should be rejected” because doing so would be contrary to the
statutory mandate that we determine “[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.” RSA 630:5, XI(c). The State
asserts that taking into account mitigating evidence “goes directly to the
background and character of the defendant.”

       As we have stated, the process of conducting proportionality review “is
not limited to a comparison of the aggravating and mitigating factors between
the defendant’s case and each case in the inventory, or a calculation of the
number of death and life imprisonment verdicts.” Proportionality Framework,
160 N.H. at 772. Rather, we consider “the nature and circumstances of the
capital murder, the aggravating factors, and any mitigating factors,” and
determine whether a pattern of verdicts demonstrates that the defendant’s
                                        4
death sentence is excessive or disproportionate. Id. at 761. We noted in
Proportionality Framework that “[c]aution is warranted when considering the
number and nature of aggravating factors, and any mitigating factors” involved
in the comparison case inventory, because “[i]t is left to the jury to determine
the deathworthiness of a particular defendant in light of the circumstances of
that crime and the character and background of that defendant.” Id. at 773,
774. Although we recognize that mitigating factors do not exist in every case,
the absence of such factors does not render an otherwise “similar case”
meaningless to our review.

       The defendant also argues that we should reassess our rejection of the
“quantitative analysis” approach, and he proposes a combined qualitative and
quantitative methodology. He asserts that we should employ “simple frequency
calculations using culpability factors in light of the size of the universe, the
recurrence of factors common to cases in the universe, and the use of
culpability factors to distinguish cases similar to those used in [other] states.”
The defendant provides a spreadsheet that identifies 13 factors that he argues
“tended to appear in capital murder cases in which the defendant killed a law
enforcement officer acting in the line of duty,” and he assigns a numerical
value to each factor to determine the frequency with which juries tended to
impose life or death sentences in approximately 350 cases, depending upon the
presence or absence of the identified factors. In this manner, the defendant
asserts that “[h]is case bears the characteristics of those in which defendants
were sentenced to life, and is an outlier when compared to cases in which
defendants were sentenced to death.” The State argues that the defendant’s
“statistical, mathematical approach to comparative proportionality review
stands in direct contrast” to the qualitative, precedent-seeking approach we
adopted in Proportionality Framework, and that his approach should be
rejected because it “fails to establish any unique footprint of the comparison
cases or the defendant’s case.”

       We have rejected employing a quantitative, frequency method involving
statistical analysis “which seeks to mathematically quantify the various factors
leading to the imposition, or non-imposition, of the death penalty, and the
frequency with which the death penalty is imposed in certain circumstances.”
Id. at 770. We specifically declined to adopt a method of comparative
proportionality review that “involves isolating capital murder cases into
categories based upon certain aggravating and mitigating factors to assess the
frequency with which the death penalty is or is not imposed for capital crimes
within each category.” Id. In doing so, we noted that such a method “may
actually obscure, or at least unnecessarily complicate, the appellate task of
reviewing a death sentence imposed under a process that accounts for all of
the individual circumstances of the particular murder and the particular
defendant.” Id. at 771. We reaffirm that “[t]he plain language of RSA 630:5,
XI(c) anticipates that we conduct comparative proportionality review in a fact-
specific manner by ‘considering both the crime and the defendant,’” and that
                                        5
the precedent-seeking approach to comparative proportionality review “accords
with the individualized sentencing considerations that juries are required to
engage in when deciding whether to impose the death penalty.” Id. at 770.

       Turning to the parameters of “similar cases,” we note at the outset that
the State contends that Proportionality Framework could be interpreted to
include only the defendant’s case in the comparison universe because “New
Hampshire appears to be the only jurisdiction whose capital murder statute
requires a knowing mental state to be proven as a prerequisite for a capital
murder conviction.” Thus, the State asserts, because the defendant’s sentence
is the first sentence subject to comparative proportionality review, there are no
similar cases and his sentence cannot be held to be disproportionate. The
defendant disagrees, arguing that a “one-case universe” approach is contrary to
the language of RSA 630:5, XI(c), which requires that we consider the “penalty
imposed in similar cases,” and would leave us unable to fulfill our appellate
review obligation until another similar in-state case arises. Although we
observed in Proportionality Framework that in-state case comparison is
preferable because “[l]ocal jury verdicts best express contemporary community
values regarding whether the punishment of death is appropriate for a
particular crime committed by a particular defendant,” we, nonetheless,
determined that until “New Hampshire’s death penalty jurisprudence develops
beyond this first death penalty case of its kind,” it is necessary to consider out-
of-state cases for purposes of comparative proportionality review. Id. at 779.

      Recognizing that “the language and tenor” of Proportionality Framework
“indicate that [this court] did not intend to limit the universe to a single case,”
the State identifies a comparison universe of 10 cases drawn from four
jurisdictions in which a defendant can be charged with capital murder for
“intentionally or knowingly,” or “purposely or knowingly,” killing a law
enforcement officer acting in the line of duty. Comparing this case with those
cases, the State argues that, “[t]aking into account . . . all the aggravating
factors proven at trial, the facts of the murder itself, and the lack of compelling
mitigating factors . . . , it would have been an aberration for the defendant’s
jury not to have imposed the death penalty.”


  In this case, the jury found the following statutory aggravating factors: (1) the defendant
purposely inflicted serious bodily injury that resulted in the death of Officer Michael Briggs;
and (2) the defendant murdered Officer Michael Briggs for the purpose of avoiding or
preventing a lawful arrest. The jury found 13 non-statutory aggravating factors. These
included three “other serious acts of violence”: (1) assault and battery and threatening to
commit a crime (1996); (2) assault with intent to kill, assault and battery, and possession of a
firearm without a permit (1996); and (3) armed robbery and two counts of assault and battery
with a dangerous weapon (knife and shod foot) (1997), and nine “other serious criminal
behavior”: (1) false imprisonment (2003); (2) probation violation (2003); (3) armed robbery (El
Mexicano Restaurant) (2006); (4) felon in possession (El Mexicano Restaurant) (2006); (5)
armed robbery and conspiracy to commit robbery (7-Eleven Store) (2006); (6) felon in

                                                6
       The defendant asserts that the State’s case selection methodology is
flawed because, among other reasons, “no death-sentenced defendant in the
State’s pool was clearly found to have committed a merely knowing murder of
an officer,” no jury imposed a death sentence “after specifically rejecting a
finding of a purpose to kill,” and the statutes in the jurisdictions chosen by the
State are not “so uniquely similar as to justify only their inclusion in
comparative proportionality review.” He argues, among other things, that
because the State alleged, but the jury did not find, “purpose to kill” as a
statutory aggravating factor, and because in cases in which defendants did not
purposely kill a police officer they were all sentenced to life imprisonment, his
sentence is comparatively disproportionate.

       We are not persuaded by the defendant’s attempt to negate the
significance of the death penalty cases relied upon by the State. Under New
Hampshire law, a defendant is not eligible for a death sentence unless a
unanimous jury finds beyond a reasonable doubt both that the defendant is
guilty of capital murder for knowingly causing the death of another under one
of seven specific circumstances, and that the State has proved two statutory
aggravating factors, one of which is that the defendant acted purposely when
committing the capital murder. See RSA 630:1 (Supp. 2014),:5, I-II, IV, VII
(2007). The statute provides three variants of the aggravating factor requiring
purposeful conduct:

possession (7-Eleven Store) (2006); (7) accomplice to reckless conduct with a firearm and
conspiracy to commit criminal threatening (345 Edward J. Roy Drive) (2006); (8) felon in
possession (capital murder) (2006); and (9) reckless conduct (disposing of firearm) (2006). In
addition, the jury found the victim impact evidence non-statutory aggravating factor. The jury
found 16 mitigating factors: (1) if not sentenced to death, the defendant would automatically
be sentenced to life imprisonment without parole; (2) the murder did not involve substantial
planning or premeditation; (3) the defendant surrendered without resistance and without
causing additional harm; (4) the defendant’s mother had a history of psychiatric problems,
neglected her prenatal care, and engaged in violence and drug and alcohol abuse during her
pregnancy with him; (5) during the defendant’s childhood, his mother engaged in acts of
violence, substance abuse, and mentally unstable behavior in his presence; (6) the defendant’s
mother was physically abusive to him during his childhood; (7) the defendant’s father was a
drug abuser and engaged in criminal conduct; (8) the defendant was left alone with his mother
in his early childhood despite contrary instructions from the Department of Social Services; (9)
during the defendant’s childhood, family members engaged in substance abuse in the home;
(10) during the defendant’s childhood, he witnessed family members engaged in criminal
behavior including acts of violence; (11) the defendant was in special education programs; (12)
the defendant was able to perform better and maintain his behavior when placed in classrooms
with one-on-one instruction; (13) when he was a young child, the defendant did not receive the
psychological counseling recommended by mental health professionals; (14) the defendant did
not receive the nurturing necessary for healthy development during his childhood; (15) the
defendant was left in the care of many different persons during his childhood; and (16) the
defendant was exposed to crime, violence, drug dealing and drug abuse during his adolescence.


                                               7
      (a) The defendant:

             (1) purposely killed the victim;

             (2) purposely inflicted serious bodily injury which resulted in
             the death of the victim;

             (3) purposely engaged in conduct which:

                   (A) the defendant knew would create a grave risk of
                   death to a person, other than one of the participants in
                   the offense; and

                   (B) resulted in the death of the victim.

RSA 630:5, VII(a). In this case, the jury rejected as “not proven,” that the
defendant purposely killed Officer Briggs. Addison, 165 N.H. at 658 (quotation
omitted). However, the jury unanimously found both that the defendant
purposely inflicted serious bodily injury that resulted in the death of Officer
Briggs, and that the defendant purposely engaged in conduct that he knew
would create a grave risk of death to another and that resulted in the death of
Officer Briggs. See id. We, therefore, conclude that the defendant’s argument
does not draw a meaningful distinction for purposes of our comparative
proportionality review.

       The defendant also asserts that the State’s case analysis is flawed and
that “[i]t has identified no patterns or defining characteristics across a series of
jury verdicts that purport to distinguish defendants sentenced to death from
those sentenced to life.” The defendant identifies a comparison universe of
approximately 350 cases from more than 25 out-of-state jurisdictions in which
defendants killed law enforcement officers acting in the line of duty. The State
argues that “the sheer number of cases included in the defendant’s pool makes
meaningful review inefficient and therefore, not meaningful,” and that “[t]he
defendant makes no attempt to narrow his pool to those cases[ ] which are
most similar to his own in accordance with the criteria set forth” in
Proportionality Framework. The State also asserts that because it proved
purposeful conduct as to the statutory aggravating factors set forth in RSA
630:5, VII(a), it “need not prove that the defendant purposely killed the victim”
and, therefore, the cases cited by the defendant in which purpose to kill is a
statutory requirement for death eligibility are not “similar” and fail to take into
account “the differences between the statutory scheme in New Hampshire and
the schemes in other comparison states.”

       We have reviewed all the cases cited by the parties, and we conclude that
the cases relied upon by the State generally represent those that most closely
fit the parameters laid out in Proportionality Framework. Those cases provide
                                         8
sufficient information about the nature and circumstances of the capital
murder to allow us to determine whether juries generally impose a death
sentence in capital murder cases similar to the defendant’s case, “considering
both the crime and the defendant,” RSA 630:5, XI(c). See State v. Cruz, 181
P.3d 196 (Ariz. 2008) (en banc) (death); State v. Rose, 297 P.3d 906 (Ariz.)
(death), cert. denied (2013); Dickens v. State, 754 N.E.2d 1 (Ind. 2001) (life);
Jeter v. State, 888 N.E.2d 1257 (Ind. 2008) (life); Pruitt v. State, 834 N.E.2d 90
(Ind. 2005) (death); Ritchie v. State, 809 N.E.2d 258 (Ind. 2004) (death); State
v. Simon, 737 A.2d 1 (N.J. 1999) (death); Williams v. Thaler, 602 F.3d 291 (5th
Cir. 2010) (death); Garza v. Thaler, 909 F. Supp. 2d 578 (W.D. Tex. 2012)
(death); Will v. Thaler, No. H-07-CV-1000, 2010 WL 2179680 (S.D. Tex. May
25, 2010) (death). A brief description of these cases is set forth in the Appendix
to this opinion.

       Because “[u]ltimately, no two capital murder defendants are alike,” none
of the comparison cases are identical to the case before us. Proportionality
Framework, 160 N.H. at 774. However, our function is to identify an aberrant
death sentence, not to search for proof that a defendant’s sentence is perfectly
symmetrical with the penalty imposed in all other similar cases. Id. Our
review of the cases does not support a finding that the death penalty is only
rarely imposed for the murder of a law enforcement officer acting in the line of
duty. Rather, the cases reveal “a pattern of jury verdicts” imposing death in
similar cases. Id. at 761. We hold that the death sentence imposed upon the
defendant in this case is not “excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.” RSA
630:5, XI(c). Accordingly, the defendant’s sentence of death is affirmed. RSA
630:5, XII(a).

                                                  Affirmed.

     DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.




                                        9
                                                             Appendix

Source(s)                 Basic Facts            Brief Description
State v. Cruz, 181        Defendant              Aggravating evidence included that victim was an on-duty police officer
P.3d 196 (Ariz. 2008)     sentenced to death     killed in the course of performing his official duties and that defendant
(en banc)                 for killing a police   knew or should have known that the victim was a police officer. Mitigating
                          officer by shooting    factors included: impaired capacity to appreciate the wrongfulness of his
                          him at close range     conduct; impaired capacity to conform his conduct to the law; unusual and
                          during a chase on      substantial duress; unforeseeability that the acts would cause death;
                          foot.                  dysfunctional family; deprivation of necessary nurturing and love from
                                                 family; family history of mental disorders; post-traumatic stress disorder;
                                                 drug addiction; mental state affected by family history of mental disorders
                                                 and drug addiction; unfavorable impact on defendant’s family; existence of
                                                 family support; compliance with prison rules; lack of propensity for future
                                                 violence; capability to adapt to prison life; lack of plan to commit the
                                                 murder.
State v. Rose, 297        Defendant              Jury found four aggravating circumstances: (1) defendant previously
P.3d 906 (Ariz.), cert.   sentenced to death     convicted of a serious offense; (2) defendant committed the offense in
denied (2013)             for shooting a         expectation of the receipt of anything of a pecuniary value; (3) defendant
                          police officer at      committed the offense while on probation for a felony offense; (4) victim
                          close range during     was an on-duty police officer killed in the course of performing his official
                          defendant’s arrest.    duties and defendant knew or should have known the victim was a police
                                                 officer. Defendant presented mitigating evidence including mental health
                                                 problems, multiple head injuries, drug and alcohol addiction, low IQ, use of
                                                 methamphetamine in the days before the murder, and emotional neglect
                                                 from his father.
Dickens v. State,         16-year-old            In a post-conviction proceeding, the court noted that defendant had prior
754 N.E.2d 1 (Ind.        defendant              history of attempted flight from police and history of violence both in and
2001); Dickens v.         sentenced to life      out of custody, and that he had previously “pistol whipped” a person,
State, 997 N.E.2d 56      imprisonment           pointed a gun at another person’s face, and engaged in fights while in
(Ind. 2013)               without parole for     custody.
                          shooting a police
                          officer at close
                          range when the on-
                          duty officer was
                          pursuing him on
                          foot.
                                                                10
Jeter v. State, 888     Defendant            Aggravating evidence included that the victim was a law enforcement officer
N.E.2d 1257 (Ind.       sentenced to life    acting in the course of duty. Defendant presented evidence that he was
2008); State’s          imprisonment         depressed, narcissistic, paranoid, and addicted to marijuana.
Appendix, Exhibit 3     without parole for
                        shooting a police
                        officer at close
                        range as defendant
                        tried to flee.
Pruitt v. State, 834    Defendant            Aggravating evidence included that victim was a law enforcement officer
N.E.2d 90 (Ind.         sentenced to death   killed in the course of his duties. The defendant presented evidence
2005); Pruitt v.        for shooting a       including claims of mental retardation, mental illness, a dysfunctional
State, 903 N.E.2d       police officer at    childhood including physical and verbal abuse by his father, head trauma,
899 (Ind. 2009)         close range during   and ingestion of kerosene and gasoline at a young age.
                        a traffic stop.
Ritchie v. State, 809   Defendant            Aggravating factors included that the victim was a law enforcement officer
N.E.2d 258 (Ind.        sentenced to death   acting in the course of duty, the defendant knew that the victim was a
2004); Ritchie v.       for shooting a       police officer, and at the time the murder was committed the defendant
State, 875 N.E.2d       police officer       was on probation after receiving a sentence for the commission of a felony.
706 (Ind. 2007)         during a chase on    Mitigating evidence included the defendant’s difficulties in school, a
                        foot.                diagnosis of Attention Deficit Disorder, psychiatric hospitalization at the
                                             age of 10, emotional and behavioral problems, head injuries he suffered as
                                             a teenager, his mother’s use of drugs while pregnant with him and during
                                             his childhood, her sexual promiscuity, and drug and alcohol use in the
                                             household.
State v. Simon, 737     Defendant            Aggravating evidence included: (1) defendant murdered a police officer
A.2d 1 (N.J. 1999)      sentenced to death   during the performance of his official duties; (2) victim was murdered while
                        for shooting a       defendant was engaged in flight after committing burglary; (3) the murder
                        police officer at    was committed for the purpose of escaping detection, apprehension, trial,
                        close range during   punishment or confinement for another offense committed by defendant;
                        a traffic stop.      (4) defendant previously was convicted of another murder. Defendant
                                             proffered 126 mitigating circumstances related to his life including physical
                                             and verbal abuse from his parents, drug abuse and petty offenses, and
                                             evidence of mental health issues including that he suffered from an
                                             antisocial personality disorder.



                                                            11
Williams v. Thaler,    Defendant               State presented evidence that several days before the shooting defendant
602 F.3d 291 (5th      sentenced to death      stole a car at gunpoint, defendant committed several previous robberies,
Cir. 2010)             for shooting a          including a robbery-shooting using the same gun as that used in the
                       police officer at       murder. The defendant presented evidence including that he had family
                       close range in          support, he showed a low IQ when tested in high school, he was diagnosed
                       order to avoid          by school officials as emotionally disturbed, he served honorably in the
                       arrest.                 Navy, and was able to hold a job after his discharge.
Garza v. Thaler, 909   Defendant               State presented evidence of 25 prior crimes committed by the defendant
F. Supp. 2d 578        sentenced to death      both as a juvenile and an adult including burglary, motor vehicle theft,
(W.D. Tex. 2012)       for shooting a          possession of three knives and a screwdriver on school property,
                       police officer in the   possession of stolen property including a pistol and ammunition, escape
                       head at close range     from custody, theft, resisting arrest, criminal mischief, unlawful carrying of
                       with the officer’s      a weapon, driving under the influence, and possession of marijuana.
                       service weapon          Defendant presented evidence of his troubled upbringing including verbal
                       during the              and physical abuse by his father, his father’s incarcerations, his father’s
                       defendant’s arrest      drug use in defendant’s presence, and his father’s fatal overdose.
                       following a chase
                       on foot.
Will v. Thaler, No.    Defendant               State presented evidence of defendant’s criminal history of a misdemeanor
H-07-CV-1000, 2010     sentenced to death      conviction for evading arrest, a felony conviction for unauthorized use of a
WL 2179680 (S.D.       for shooting a          vehicle, an aggravated robbery conviction committed while defendant was
Tex. May 25, 2010);    police officer          on community supervision, and three disciplinary rule violations while
Will v. State, No.     during a chase on       incarcerated awaiting trial for murder. Defendant presented evidence that
74,306, 2004 WL        foot.                   he would not likely commit violence in a structured prison environment
3093238 (Tex. Crim.                            and evidence that he had an unstable family background.
App. April 21, 2004)




                                                               12
