SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0507-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR20031993
CODY JAMES MARTINEZ, )
)
Appellant. )
) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Pima County
The Honorable Howard L. Fell, Judge Pro Tempore
Affirmed
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Lacey Alexandra Stover Gard, Tucson
Assistant Attorney General
Attorneys for State of Arizona
LAW OFFICES OF WILLIAMSON & YOUNG P.C. Tucson
By S. Jonathan Young
Attorneys for Cody James Martinez
________________________________________________________________
R Y A N, Justice
I
A1
¶1 On June 12, 2003, twenty-one-year-old Cody James
Martinez, fifteen-year-old Michael Lopez, and several other
1
We review the facts in the “light most favorable to
sustaining the verdict[s].” State v. Tucker (Tucker I), 205
Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003).
adolescents were at a friend’s Tucson home smoking marijuana.
Johnathon Summey-Montaño arrived with Francisco Aguilar.
Aguilar was sent out with two others to purchase rolling papers
for the group.
¶2 Summey-Montaño described Aguilar to Martinez as a
“baller” (meaning he had money) and suggested that they rob him.
Martinez agreed. When Aguilar returned to the house, Martinez
first engaged him in a conversation and then punched him in the
face. Martinez and Summey-Montaño began beating Aguilar, while
other members of the group went outside. Martinez and Summey-
Montaño called Aguilar a child molester.2 Martinez directed
Lopez to join in kicking Aguilar, threatening to kill Lopez if
he did not do so. Summey-Montaño pointed a shotgun at Aguilar.
Martinez took the shotgun and hit Aguilar in the head with it.
Martinez and Summey-Montaño then bound Aguilar’s hands and feet.
Aguilar was crying and begging for an explanation for the
beating. Martinez and Summey-Montaño took valuables from
Aguilar: Summey-Montaño put on Aguilar’s necklace and took two
dollars from one of Aguilar’s shoes; Martinez put Aguilar’s gold
bracelet in his own pocket.
¶3 Lopez and Summey-Montaño then forced Aguilar into the
trunk of a car. Martinez, Lopez, Summey-Montaño, and at least
2
Martinez claimed that Summey-Montaño had told him that
Aguilar had raped Summey-Montaño’s eleven-year-old cousin.
2
one other person got into the car. Martinez drove and Summey-
Montaño gave directions to Aguilar’s home. When they arrived,
Martinez instructed one of the others to watch for Aguilar’s
family. Martinez and Summey-Montaño entered the house and
returned with beer and liquor. Apparently dissatisfied with the
haul, Martinez demanded that Aguilar tell him “where’s the
stuff; where’s the shit?” - a reference to “drugs, money, or
whatever.” Martinez returned to the house and came back with a
computer printer.3
¶4 When they tried to leave, Martinez could not start the
car. The group pushed the car, with Aguilar still in the trunk,
to a nearby gas station. They put gas in the car but it still
did not start. The group pushed it to a nearby pay telephone
and sat there. Aguilar remained in the trunk.
¶5 Later, an acquaintance arrived at the gas station.
Martinez spoke to this person and showed him a bag of
methamphetamine. The acquaintance used Aguilar’s mobile
telephone to call Fernando Bedoy, who arrived in a Ford
Explorer. Using the Explorer, Martinez and the others pushed
3
Martinez was seen with women’s jewelry after leaving
Aguilar’s house. Fritzie Gonzalez, the woman with whom Aguilar
lived, told jurors that her house had been “turned upside down.”
She was missing beer and liquor, a computer printer, jewelry,
and jewelry boxes. Gonzalez identified jewelry found on
Martinez as including a bracelet she had given Aguilar and other
items that belonged to her.
3
their vehicle to a side street. The car still would not start.
¶6 Summey-Montaño and Martinez then led Aguilar from the
trunk of the car to the cargo space of the Explorer, keeping him
covered with a blanket. Martinez poked Aguilar with a shotgun
when Aguilar did not crawl into the Explorer fast enough.
¶7 Martinez, Bedoy, Lopez, and Summey-Montaño got into
the Explorer, leaving the rest of the group behind. Bedoy
drove. After some discussion between Summey-Montaño and
Martinez, Martinez directed Bedoy to the desert. Martinez
announced he intended to kill Aguilar and anyone who tried to
stop him.
¶8 As Bedoy drove, Martinez and the others were laughing
and taunting Aguilar. Summey-Montaño stabbed Aguilar in the
hand with a knife and hit him with a compact disc he claimed to
have stolen from Aguilar. He also mocked Aguilar, asking him to
name his favorite track on the disc.
¶9 When the group arrived at the desert area, Summey-
Montaño pulled Aguilar out of the Explorer. Martinez and
Summey-Montaño kicked Aguilar. Aguilar was dragged around the
truck, making “noises of pain . . . moaning and groaning.”
Martinez, Summey-Montaño, and Lopez continued kicking and
stomping on Aguilar, while Aguilar begged for his life.
Martinez demanded he shut up and ordered Aguilar to march into
4
the desert at gunpoint and then to lie down.
¶10 Martinez fired a shot at Aguilar that went “[r]ight
above his head,” although Martinez stood directly above the
victim. Martinez laughed about having missed. As Martinez
reloaded the shotgun, Summey-Montaño beat Aguilar with a tire
iron and stabbed him in the belly. Martinez fired again, this
time hitting Aguilar in the collarbone area, “[a] little lower
than the neck,” but not killing him. Summey-Montaño refused
Martinez’s request that he finish off Aguilar, so Martinez fired
one more time, hitting Aguilar in the neck, killing him.
¶11 Martinez and Summey-Montaño ordered Lopez and Bedoy to
wipe out the footprints they had left. Trash was piled on
Aguilar’s body and Martinez lit the pile on fire. The group
returned to the Explorer and drove away.
¶12 Moments later, a Tucson Airport Authority police
officer on patrol noticed smoke in the distance and the Explorer
driving from that direction and initiated a traffic stop. As
the police cruiser and the Explorer crossed paths, Martinez hid
cocaine and methamphetamine in the vehicle in which he was
travelling. He told the group to tell police they were coming
from a barbeque at “Cisco’s.” He told the officer who stopped
the Explorer the same. Police detained the group. Tucson
firefighters, meanwhile, responded to the blaze and reported
5
that a body had been found. After the body was discovered,
Martinez was taken into custody and, incident to that arrest,
was searched. Jewelry and marijuana were found in Martinez’s
possession. Liquor, drugs, and the shotgun were also found in
the Explorer.
B
¶13 In the fall of 2005, a jury found Martinez guilty of
premeditated first degree murder, felony murder, and kidnapping.
The sentencing proceedings followed, and at the aggravation
phase, the jury unanimously found that Martinez murdered Aguilar
for pecuniary gain and committed the slaying in an especially
cruel, heinous, and depraved manner. See Ariz. Rev. Stat.
(“A.R.S.”) section 13-703(F)(5), (F)(6) (Supp. 2003). At the
penalty phase, Martinez put on evidence that he had had a
terrible childhood, that he had been molested as a child, and
that those circumstances led him to murder Aguilar. The jury
concluded that the mitigation evidence was not sufficiently
substantial to call for leniency, determining that Martinez
should be sentenced to death.
¶14 An automatic notice of appeal and an appeal from post-
trial rulings4 were filed with this Court under Arizona Rules of
4
In early 2006, Martinez filed a motion for new trial under
Arizona Rule of Criminal Procedure 24.1, raising many of the
6
Criminal Procedure 26.15 and 31.2(b) and A.R.S. §§ 13-4031, -
4033 (2001). We have jurisdiction under the Arizona
Constitution, Article 6, Section 5(3), and A.R.S. §§ 13-4031, -
4033.
II
A
¶15 Martinez first argues that prosecutorial misconduct
warrants a new trial. This Court will reverse a conviction for
prosecutorial misconduct only when “(1) misconduct is indeed
present; and (2) a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby
denying [the] defendant a fair trial.” State v. Velazquez, 216
Ariz. 300, 311, ¶ 45, 166 P.3d 91, 102 (2007), cert. denied, 128
S. Ct. 2078 (2008) (quoting State v. Anderson (Anderson II), 210
Ariz. 327, 340, ¶ 45, 111 P.3d 369, 382 (2005)). Martinez did
not object below to any of the prosecution’s allegedly improper
statements. Absent a trial objection, we review claims of
prosecutorial misconduct for fundamental error. Id. at ¶ 47.
¶16 Fundamental error is “error going to the foundation of
the case, error that takes from the defendant a right essential
to his defense, and error of such magnitude that the defendant
could not possibly have received a fair trial.” State v.
issues he now advocates on appeal. The superior court denied
the motion after a hearing.
7
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)
(citation omitted). “To prevail under this standard of review,
a defendant must establish both that fundamental error exists
and that the error in his case caused him prejudice.” Id. at ¶
20 (citation omitted).
1
¶17 When the police stopped the Explorer, Martinez and his
companions told investigators that they had been at a barbeque
at “Cisco’s.”5 The jury heard that this cover story came from
Martinez. In closing arguments at the aggravation phase, the
prosecution told jurors that Martinez provided his friends “a
sickening excuse to offer up to the police officers – we were at
Cisco’s barbecue – so he cannot be connected with this crime.”
¶18 Martinez claims that the prosecutor knew, based on a
series of free talks between the State and other defendants, as
well as an interview of Martinez, that the alibi, although a
fabrication, was not a “joke” about burning Aguilar because the
reference was to another “Cisco.”
¶19 A prosecutor is entitled to make arguments supported
by the record. State v. Hughes, 193 Ariz. 72, 85, ¶ 59, 969
P.2d 1184, 1197 (1998). The prosecutor’s comment about the
alibi was a suggestion that Martinez’s reference to “Cisco”
5
Francisco Aguilar had been called “Cisco.”
8
could not credibly be called a coincidence. The police
interviews and free talks emphasized by Martinez on appeal do
not rule out the possibility that Martinez did, in fact, intend
the alibi to refer to the crime. The prosecutor’s statement was
neither false nor a mischaracterization. There was simply no
misconduct in this instance.
2
¶20 Martinez makes several additional attempts to
demonstrate prosecutorial misconduct, none of which warrant
detailed discussion. He alleges that prosecutors falsely
claimed that Martinez “joked” about missing his first shot at
Aguilar, wrongly claimed that Martinez had been accused of
committing arson at his elementary school, and fallaciously
questioned the veracity of Martinez’s claims that he killed
Aguilar because he believed Aguilar was a child molester. All
of the prosecutors’ comments are supported by evidence,
including, in some cases, evidence proffered by Martinez
himself.6 These additional allegations, therefore, are
6
For example, both Bedoy and Lopez testified that Martinez
laughed about missing his first, close-range shot at Aguilar.
Evidence of the school arson allegations against him was in the
records provided by Martinez to the jury. Further, the
prosecutor’s comments as to Martinez’s motive properly
questioned the link between the alleged motive and Martinez’s
own claim of having been victimized as a child. The prosecution
pointed to the absence in the same documents of any complaint by
9
meritless.
B
¶21 The jury returned separate verdicts finding that
Martinez committed felony murder and premeditated murder.
Martinez argues that there was insufficient evidence to convict
him of felony murder. He does not challenge the jury’s finding
of premeditated murder.
¶22 Because felony murder is an alternate theory of first
degree murder, State v. Tucker (Tucker I), 205 Ariz. 157, 167, ¶
50, 68 P.3d 110, 120 (2003), this Court need not consider a
challenge to the sufficiency of the evidence of felony murder
when the jury also returns a separate verdict of guilt for
premeditated murder. Anderson II, 210 Ariz. at 343, ¶ 59, 111
P.3d at 385 (“In any event, the jury returned separate guilty
verdicts for both felony murder and premeditated murder as to
each victim; therefore, the first-degree murder convictions
would stand even absent a felony murder predicate.”); cf. State
v. Smith (Todd), 193 Ariz. 452, 460, ¶¶ 34-36, 974 P.2d 431, 439
(1999) (declining to address issue with premeditation
instruction because defendant failed to challenge conviction for
felony murder).
¶23 We are, however, concerned about the felony murder
Martinez that when he was a child he had been the victim of
molestation.
10
instruction in this case. The instruction stated:
The crime of first degree felony murder
requires proof of the following two things:
The defendant committed or attempted to
commit a kidnapping; and
In the course of and in furtherance of this
crime or immediate flight from this crime,
the defendant or another person caused the
death of any person.
With respect to the felony murder rule,
insofar as it provides the basis for a
charge of first degree murder, there is no
requirement that the killing occurred “while
committing” or “engaged in” the felony, or
that the killing be a part of the felony.
The homicide need not have been committed to
perpetrate the felony.
It is enough if the felony and the killing
were part of the same series of events.
(Emphasis added.) The instruction used language long absent
from Arizona’s felony murder statute. We have discouraged the
use of this instruction because the emphasized sentence is not
an accurate description of Arizona’s felony murder statute.
State v. Miles, 186 Ariz. 10, 15, 918 P.2d 1028, 1033 (1996).
Although Martinez cannot show prejudice, the instruction does
not accurately state the law and we disapprove of its future
use.
C
¶24 The State granted Lopez and Bedoy testimonial immunity
as part of plea agreements under which each was permitted to
11
plead to kidnapping, with a maximum sentence of twelve years.
Each testified against Martinez at trial. Summey-Montaño
pleaded guilty to first degree murder and was sentenced to life
imprisonment; his post-conviction relief proceedings, see Ariz.
R. Crim. P. 32, were pending at the time of Martinez’s trial.
Martinez sought to compel Summey-Montaño to testify. Summey-
Montaño invoked his Fifth Amendment right against self-
incrimination. The trial judge held that Summey-Montaño
retained that right during the pendency of his initial post-
conviction proceedings. See State v. Rosas-Hernandez, 202 Ariz.
212, 217, ¶ 14, 42 P.3d 1177, 1182 (App. 2002) (“[I]f a witness’
Fifth Amendment privilege survives during a direct appeal, it
also survives pending post-conviction relief.”).
¶25 Martinez now claims that his Sixth Amendment right to
compel a witness to testify on his behalf was violated by the
trial court’s failure to require Summey-Montaño to testify. We
review the denial of a motion to compel for an abuse of
discretion. State v. Corrales, 138 Ariz. 583, 588-89, 676 P.2d
615, 620-21 (1983).
¶26 A defendant has a right under the Sixth Amendment to
compel witness testimony, but the right is “not absolute” and
will give way when the witness’s preservation of his own Fifth
Amendment rights would prevent him from answering relevant
12
questions. State v. Harrod (Harrod III), 218 Ariz. 268, ___, ¶¶
20-21, 183 P.3d 519, 527 (2008).
¶27 Citing Chavez v. Martinez, 538 U.S. 760 (2003),
Martinez argues that Summey-Montaño enjoyed no Fifth Amendment
right to avoid testifying because such a right is implicated
only by the government’s use of compelled testimony. Chavez
stands for the proposition that a person subject to
interrogation suffers no constitutional injury from the
interrogation itself for the purpose of federal civil rights
statutes. Id. at 766 (“We fail to see how, based on the text of
the Fifth Amendment, Martinez can allege a violation of this
right, since Martinez was never prosecuted for a crime, let
alone compelled to be a witness against himself in a criminal
case.”) (plurality). We do not read Chavez as thus requiring
the government to compel defense witnesses to testify. Rather,
as we recently reiterated, when a witness has continued reason
to fear prosecution, the defendant’s Sixth Amendment right to
compel that witness’s testimony may be properly limited. Harrod
III, 218 Ariz. at ___, ¶ 23, 183 P.3d at 527; see also Rosas-
Hernandez, 202 Ariz. at 217, ¶ 16, 42 P.3d at 1182 (stating that
a defendant who pleaded guilty “retained the right not to
incriminate himself during the . . . period in which a timely
initial petition for post-conviction relief may be filed”)
13
(emphasis added).
¶28 Martinez also claims that the prosecution attempted to
skew the jury’s understanding of the circumstances of the crimes
by failing to offer immunity to Summey-Montaño, and therefore
his Fourteenth Amendment due process rights were violated. This
allegation of prosecutorial misconduct is not reflected in the
record below; we therefore review for fundamental error.
Velazquez, 216 Ariz. at 311, ¶ 47, 166 P.3d at 102.
¶29 “The state’s refusal to grant a particular witness
immunity does not violate a defendant’s right to due process
absent . . . a showing that the witness would present clearly
exculpatory evidence and that the state has no strong interest
in withholding immunity.” State v. Doody, 187 Ariz. 363, 376,
930 P.2d 440, 453 (App. 1996). There is no such showing here.
¶30 Martinez claims that the prosecution manipulated the
sentencing agreements to prevent co-defendant Summey-Montaño
from testifying to the “real reason” for the murder, which was
not to cover up a robbery, but to punish Aguilar for the alleged
molestation of Summey-Montaño’s cousin. But that argument is
refuted by the record. The jury heard this information. Both
Lopez and Bedoy testified that Martinez knew of the allegations
14
against Aguilar.7
D
¶31 During jury selection, a juror asked the trial judge
about the appellate process. The judge described the process,
noting that “anybody who is convicted of a crime has various
Post-Conviction Relief rights. In other words, they can appeal
the conviction. A higher court can review it and see if I did
anything wrong, or if I made any improper rulings, if Mr.
Martinez’s constitutional rights were violated, that kind of
thing.”
¶32 Martinez claims that the trial judge’s comments
improperly minimized the jury’s role in sentencing him to death.
In Caldwell v. Mississippi, 472 U.S. 320, 333 (1985), the
Supreme Court stated that “[because] the sentence [is] subject
to appellate review [only upon] a sentence of death, the chance
that an invitation to rely on that review will generate a bias
toward returning a death sentence is simply too great.”
¶33 No Caldwell error occurred here. Caldwell applies
“only to certain types of comment[s] – those that mislead the
jury as to its role in the sentencing process in a way that
allows the jury to feel less responsible than it should for the
7
To the extent that evidence of the “real motive” was
relevant as mitigation, Martinez himself told the jury in the
penalty phase that this was the reason he killed Aguilar.
15
sentencing decision.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994);
Anderson II, 210 Ariz. at 337, ¶ 22, 111 P.3d at 379 (same); see
also Caldwell, 472 U.S. at 343 (O’Connor, J., concurring in part
and concurring in the judgment) (prosecutor’s “misleading
emphasis on appellate review misinformed the jury . . . creating
an unacceptable risk that the death penalty [may have been]
meted out arbitrarily or capriciously”) (quotation marks
omitted).
¶34 In contrast, the trial court here properly explained
that appellate review largely pertains to the court’s legal
decisions; further, in preliminary instructions given shortly
after the complained-of statement, the court told the jury that
the “decision to impose or not impose the death penalty is made
by you, the jury, not by the Judge. Your decision to sentence
or not sentence the defendant to death is not a recommendation.
Your decision to sentence or not sentence the defendant to death
will be binding.”
E
¶35 Martinez contends that he was improperly forced to use
a peremptory challenge to strike a juror whom the trial court
should have struck for cause. We need not address this argument
because the juror in question was not seated and Martinez makes
no claim that any of the jurors who decided his case should have
16
been struck for cause. See State v. Glassel, 211 Ariz. 33, 46-
47, ¶ 41, 116 P.3d 1193, 1206-07 (2005); State v. Hickman, 205
Ariz. 192, 200-01, ¶¶ 34-36, 40-41, 68 P.3d 418, 426-27 (2003).
F
¶36 Defense counsel claimed at trial that he was unaware
that the State had alleged the (F)(5) pecuniary gain aggravator.
Martinez now argues the consequences of trial counsel’s apparent
lack of preparation. This issue is not appropriate for review
on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39
P.3d 525, 527 (2002) (“[I]neffective assistance of counsel
claims are to be brought in Rule 32 proceedings.”).
G
¶37 Martinez next claims that during the jury’s
deliberations, the trial judge improperly answered jury
questions without notice to him or counsel. This alleged lack
of notice was a principal claim in Martinez’s motion for a new
trial. At the evidentiary hearing on that motion, members of
his defense team (but not lead counsel) and Martinez testified
that they had no knowledge, or did not remember, that the jury
had posed questions; they also claimed that if they had known,
they would have responded. The trial judge found, however,
based on his recollection, and the affidavit of his bailiff,
that the attorneys had, in fact, been contacted and lodged no
17
objection to the trial court’s proposed answers. The trial
court rejected Martinez’s factual contentions. Because the
trial court’s conclusion has factual support in the record, we
defer to that ruling.8
¶38 In any event, the trial court committed no error in
its responses addressing the jurors’ questions. As the
questions and answers set out in the footnote indicate, there
was simply nothing erroneous or prejudicial in the trial court’s
responses.9
8
The better practice is to make a contemporaneous record
with counsel about any jury questions and proposed responses.
Cf. State v. Mata, 125 Ariz. 233, 240-41, 609 P.2d 48, 55-56
(1980) (trial court contacted counsel and offered opportunity to
make record).
9
The questions and answers were:
[Q] Is murder as an attempt to cover up a
robbery considered a murder for pecuniary
gain?
[A] You must rely on the Court’s instructions
and make your determination. No further
explanation is appropriate at this time.
[Q] B. If some jurors agree that there are
mitigating circumstances must all jurors be
in agreement that a mitigating circumstance
exists. A. Must we be unamous [sic] to find
for life. [It appears from the record that
Judge Fell added the letter designations to
this jury question, then answered the
question correspondingly].
18
¶39 For similar reasons we reject Martinez’s additional
claim that the judge wrongfully failed to recognize jury
confusion from the questions and to clarify the jury
instructions. See State v. Ramirez, 178 Ariz. 116, 125-27, 871
P.2d 237, 246-48 (1994) (“[W]hen a jury asks a judge about a
matter on which it has received adequate instruction, the judge
may in his or her discretion refuse to answer, or may refer the
jury to the earlier instruction.”) (citation omitted). The
trial court acted within its discretion here. It simply
referred the jury to the original instructions in two instances
and in the third correctly stated the requirement that any
verdict be unanimous. The original instructions properly noted
that jurors did not have to settle on any single mitigator in
order to return a life sentence.
H
¶40 Martinez argues the trial court committed fundamental
error in instructing the jury that, if it was unable to reach a
[A] A. See [Instruction] #1 re: unanimous.
B. You must rely on the instructions given.
No further instructions will be provided.
[Q] The instructions have confused some.
Does the verdict have to be unanimous for
death or life? Some think only death
sentence has to be unanimous[.]
[A] Your verdict must be unanimous no matter
what your decision is.
19
verdict at the aggravation phase, the judge would then impose a
life sentence. Martinez argues that this misstatement of the
law10 amounted to coercion of the verdict. Although the State
conceded at oral argument that the jury instruction was
incorrect, there was no coercion here. Indeed, the mistaken
instruction favored Martinez by suggesting a single holdout
juror could forestall death. Cf. Mills v. Maryland, 486 U.S.
367, 375 (1988) (death penalty arbitrary when a holdout juror
can prevent otherwise unanimous jury from finding mitigating
factor). The trial court’s misstatement of the law did not
prejudice Martinez.
I
1
¶41 During the penalty phase of the sentencing proceeding,
Martinez introduced numerous documents, including Child
Protective Service (“CPS”) reports, police reports, and other
records. For example, Martinez introduced documents reporting
that he had committed arson at his elementary school, including
10
Compare A.R.S. § 13-703.01(E) (Supp. 2007) (“If the trier
of fact unanimously finds no aggravating circumstances, the
court shall then determine whether to impose a sentence of life
or natural life on the defendant.”), with id. § 13-703.01(J)
(“At the aggravation phase, if the trier of fact is a jury, the
jury is unable to reach a verdict on any of the alleged
aggravating circumstances and the jury has not found that at
least one of the alleged aggravating circumstances has been
proven, the court shall dismiss the jury and shall impanel a new
jury.”) (emphasis added).
20
school reports and court records. He also introduced pages of
disciplinary records from schools and the juvenile justice
system, as well as reports from psychologists and psychiatrists
who had interviewed him. Martinez attempted to show that his
mother was inattentive and used drugs during pregnancy, that he
was of limited intelligence, and that he had been sexually
abused. Martinez’s expert testified that a combination of drug
use, lack of sleep, and his own unresolved feelings about the
molestation, along with Aguilar’s refusal to admit his own
conduct as an alleged child molester, likely triggered the
episode that resulted in Aguilar’s death.
¶42 The State’s rebuttal evidence suggested that
Martinez’s family life was not as bad as he claimed, that his
mother had made efforts to follow up on counseling and control
his behavior, and that he exhibited behavior consistent with
being a psychopath. The State also argued that in all of the
evidence of prior violence by Martinez, nothing indicated a
sexual trigger and Martinez himself never reported any sexual
abuse until after a half-dozen sessions with his mental health
expert in preparation for trial. The State also pointed out
that a CPS report submitted as mitigation indicated that a prior
suspicion that Martinez had been sexually abused had not been
substantiated.
21
2
¶43 Martinez argues that the State’s efforts to rebut his
mitigation evidence in the penalty phase violated his rights
under the Sixth Amendment’s Confrontation Clause and deprived
him of due process. He objects principally to “hearsay”
testimony by juvenile probation officers regarding his behavior,
the victim impact statement provided by Aguilar’s birth mother,
and the claim he committed arson at his elementary school.
Because he did not raise these objections at trial, we review
for fundamental error. E.g., State v. Ellison, 213 Ariz. 116,
132, ¶ 54, 140 P.3d 899, 915 (2006), cert. denied, 127 S. Ct.
506 (2006).
¶44 As Martinez recognized, we rejected a similar
Confrontation Clause argument in State v. McGill, 213 Ariz. 147,
160, ¶¶ 54-56, 140 P.3d 930, 943 (2006), cert. denied, 127 S.
Ct. 1914 (2007) (holding hearsay evidence admissible at the
penalty phase, consistent with due process, when the “defendant
knew about the statements and had an opportunity to either
explain or deny them” and when the testimony has “sufficient
indicia of reliability to be responsible evidence”) (citation
omitted). We decline Martinez’s invitation to revisit McGill.11
11
Martinez also argues that reports that he committed arson
against his elementary school should have been excluded on other
evidentiary grounds. His argument that Rule 404(b), Ariz. R.
22
¶45 Martinez’s assertions regarding the victim impact
statement compel no different result. The statement, which was
unsworn and not subject to cross-examination, explained that
Aguilar aspired to make something of his life and was well-loved
by his family. Martinez claims that Aguilar’s birth mother
should have been subjected to cross-examination, that the
statement was false, and that the State should have corrected
it. But victim impact evidence is not put on by the State, nor
is cross-examination permitted or placing the victim’s mother
under oath necessary. See A.R.S. § 13-4426.01 (Supp. 2007)
(“[T]he victim’s right to be heard is exercised not as a
witness, the victim’s statement is not subject to disclosure to
the state or the defendant or submission to the court[,] and the
victim is not subject to cross-examination.”).12 Finally, the
fact that the mother gave Aguilar up for adoption is immaterial
Evid., and this Court’s related case law addressing the standard
for admitting other acts evidence in criminal trials should
preclude this evidence is misplaced. Section 13-703(C) (Supp.
2007) mandates that “the prosecution . . . may present any
information that is relevant to any of the mitigating
circumstances . . . regardless of its admissibility under the
rules governing admission of evidence at criminal trials” in the
penalty phase of a capital proceeding.
12
Martinez also claims that the falsity of the victim
statement is demonstrated by the State’s later “disavowal” of
it. This is not an accurate statement of the State’s position.
In post-trial proceedings, the prosecution merely noted that
Aguilar’s mother’s opinions were her own. See A.R.S. § 13-
4426.01.
23
to her status as a victim by consanguinity. See A.R.S. § 13-
703.01(S)(2).
J
1
¶46 Martinez raises several arguments relating to jury
instructions in the penalty phase. These arguments focus on the
trial court’s characterization of the role of jurors in
assessing the proper penalty.
¶47 Martinez requested the following jury instruction
about assessing mitigation evidence:
[I]n this phase, the defendant has got to
present any relevant evidence which he and
his attorneys believe are mitigating factors
which will persuade one or more [of you]
that the defendant shall be shown leniency
and not receive the death sentence.
The State may also present evidence to you
in an attempt to demonstrate the defendant
should not be shown leniency.
Rather than creating the risk of an unguided
emotional response against the defendant,
full consideration of evidence that
mitigates against the death penalty is
essential if you are to give a reasoned
moral response to the defendant’s
background, character and crime.
¶48 The trial court rejected this instruction and offered
an alternative that did not include the word “moral”; it also
precluded the defense from making a “moral judgment” argument in
its opening statement.
24
¶49 “A trial court’s refusal to give a jury instruction is
reviewed for abuse of discretion.” Anderson II, 210 Ariz. at
343, ¶ 60, 111 P.3d at 385 (citing State v. Bolton, 182 Ariz.
290, 309, 896 P.2d 830, 849 (1995)). The legal adequacy of an
instruction, however, is reviewed de novo. State v. Johnson,
212 Ariz. 425, 431, ¶ 15, 133 P.3d 735, 741 (2006), cert.
denied, 127 S. Ct. 559 (2006).
¶50 Martinez contends that the trial court erred in
“convert[ing] a moral decision into a factual decision.” He
argues that the court misled the jurors in describing their role
as reaching a “reasoned” decision, “uninfluenced by sympathy.”
His argument hinges on the absence of the word “moral” from the
instructions.
¶51 The Supreme Court has described the capital sentencing
decision as a “reasoned moral response” to mitigation evidence.
Penry v. Lynaugh, 492 U.S. 302, 328 (1989), abrogated on other
grounds by Atkins v. Virginia, 536 U.S. 304 (2002).
¶52 The Supreme Court’s use of the phrase a “reasoned
moral response” describes the result of individualized
sentencing that appropriately considers “any aspect of the
defendant’s character, propensities or record and any of the
circumstances of the offense” relevant to determine whether the
defendant should be shown leniency. A.R.S. § 13-703(G); see
25
also Kansas v. Marsh, 548 U.S. 163, 173-74 (2006) (jury must
reach reasoned decision); Anderson II, 210 Ariz. at 349, ¶ 92,
111 P.3d at 391 (rejecting claim that instruction that jury
should not be “swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion, or public feeling” violated
the Eighth Amendment). The superior court here made clear to
the jury that it should consider all possible mitigating
evidence. The omission of the word “moral” from the final
instructions did not render the instructions, as a whole,
incorrect or misleading.
¶53 Likewise, we reject Martinez’s claim that the court
prevented him from urging the jury to employ “moral judgment” in
his favor. As the State notes, Martinez explicitly asked jurors
to consider the case “in accordance with thousands of years of
the Judeo-Christian tradition” and, in fact, traced that
tradition from the Exodus to the Sermon on the Mount.
Consequently, Martinez was effectively allowed to argue that a
death verdict involved a “moral” judgment.
2
¶54 Martinez also challenges two other jury instructions.
First, he contends that the court erred in instructing the jury
that the “defendant has the burden of proving any mitigating
circumstance by a preponderance of the evidence” and that “[i]f
26
your decision is that there are no mitigating circumstances or
that mitigating circumstances are not sufficiently substantial
to call for leniency, your verdict must be that the defendant be
sentenced to death.” He claims that “[b]oth statements are
technically accurate, but they leave the impression that the
defendant bears the burden of proving that the mitigation is
sufficiently substantial to call for leniency,” contrary to
State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 123
P.3d 662 (2005).13
¶55 Baldwin rejected the state’s contention that a jury
should be instructed that the defendant bore the burden of
proving that the mitigation was substantial enough to call for
leniency, finding that neither the state nor the defendant has
such a burden of proof. Id. at 472, ¶¶ 13-14, 124 P.3d at 666.
The rejected instruction dealt with the burden of proof, not the
burden of production. Our subsequent cases have held that the
jury can properly be told that if it concludes that there is no
mitigation or the mitigation is not sufficiently substantial to
call for leniency, a death verdict should result. State v.
Tucker (Tucker II), 215 Ariz. 298, 318, ¶ 74, 160 P.3d 177, 197
(2007), cert. denied, 128 S. Ct. 296 (2007); accord Velazquez,
216 Ariz. at 310, ¶ 43, 166 P.3d at 101 (instruction requiring a
13
The trial here occurred before this Court issued its
opinion in Baldwin.
27
verdict of death if jury unanimously finds no mitigating
circumstances sufficiently substantial to call for leniency
proper “as long as the jury is allowed to consider all relevant
mitigating evidence”).
¶56 Second, Martinez claims that an instruction requiring
jurors to “individually weigh . . . mitigating circumstances
against the aggravating circumstances” and describing the manner
in which such weighing can be performed, was error. We rejected
this argument in Velazquez. 216 Ariz. at 310, ¶ 39, 166 P.3d at
101 (noting that term “weigh” may be used to describe juror’s
decision).
K
¶57 Having received a note indicating that the jury was at
an impasse, the trial judge stated in open court, with only
counsel and Martinez present, that he was “going to bring [the
jury] in and declare a mistrial.” When the jury returned, the
court asked if further deliberations would be helpful. The
jurors said yes. The court therefore dispatched the jury to
continue deliberating. Martinez now argues that the trial had
“ended,” and the judge erred by allowing further deliberation.
As Martinez’s brief concedes, however, the judge “announced
[the] intention to declare a mistrial”; he never actually
granted a mistrial. Because no mistrial had been declared and
28
the jury indicated that further deliberations would be helpful,
the superior court did not abuse its discretion in allowing
further deliberations.
L
¶58 Martinez next claims he was entitled to a jury
determination of his “defense” of mental retardation. The
Eighth Amendment bars the execution of mentally retarded
defendants. Atkins v. Virginia, 536 U.S. 304, 321 (2002). We
noted in State v. Grell that Arizona’s proceedings for
determining mental retardation operate like an affirmative
defense. 212 Ariz. 516, 522, ¶ 26, 135 P.3d 696, 702 (2006),
cert. denied, 127 S. Ct. 2246 (2007). But our analogy in Grell
simply illustrated why the burden of proving retardation could
be placed on the defendant; no affirmative defense was created.
See State v. Casey, 205 Ariz. 359, 362, ¶ 10, 71 P.3d 351, 354
(2003) (explaining that the power to create affirmative defenses
lies with the legislature).
M
¶59 Martinez raises several Eighth Amendment and statutory
challenges to this Court’s review of death penalty verdicts
under A.R.S. § 13-703.05.14 “All legal and constitutional
14
We decline to consider two of Martinez’s Eighth Amendment
challenges. The first, that Martinez’s sentence is
disproportionate compared to the sentences imposed upon other
29
questions are reviewed de novo.” Harrod III, 218 Ariz. at ___,
¶ 38, 183 P.3d at 530.
1
¶60 In 2002, the legislature ended our independent review
of death penalty verdicts for murders committed after August 1,
2002. See 2002 Ariz. Sess. Laws, ch. 1, § 7(B) (5th Spec.
Sess.); see also A.R.S. § 13-703.04 (Supp. 2003); A.R.S. § 13-
703.05. Section 13-703.05 provides that this Court now only
determines whether the trier of fact abused its discretion in
finding aggravating factors and determining that a death
sentence is appropriate.
¶61 The Eighth Amendment prohibits cruel and unusual
punishment; however, the provision also “guarantees individuals
the right not to be subjected to excessive sanctions.” Roper v.
murderers, is settled against him, as his counsel correctly
conceded at oral argument. Pulley v. Harris, 465 U.S. 37, 50-51
(1984) (“There is . . . no basis in our cases for holding that
comparative proportionality review by an appellate court is
required in every case in which the death penalty is imposed and
the defendant requests it.”); State v. Salazar, 173 Ariz. 399,
417, 844 P.2d 566, 584 (1992) (rejecting proportionality
review).
The other, that the Eighth Amendment is violated as applied
to his case, is waived for lack of argument. Ariz. R. Crim. P.
31.13(c)(1)(vi) (proper argument “shall contain . . . the
reasons therefor, with citations to the authorities, statutes
and parts of the record relied on”). In any event, given that
the jury properly found aggravating circumstances making
Martinez eligible for a capital sentence, the argument is simply
another way of arguing proportionality.
30
Simmons, 543 U.S. 551, 560 (2005). Martinez therefore argues
that this Court must review the propriety of death penalty
verdicts under a de novo standard, just as he claims the Supreme
Court reviews excessive fines and punitive damages de novo.
¶62 The Supreme Court, however, has never required de novo
review of death sentences; review need only be “meaningful.”
Clemons v. Mississippi, 494 U.S. 738, 749 (1990). “It is a
routine task of appellate courts to decide whether the evidence
supports a jury verdict and in capital cases . . . to consider
whether the evidence is such that the sentencer could have
arrived at the death sentence that was imposed.” Id. at 748-49.
De novo review of the sentencing decision is not
constitutionally required. See Jurek v. Texas, 428 U.S. 262,
276 (1976) (providing judicial review enough to “promote the
evenhanded, rational, and consistent imposition of death
sentences under law”).
2
¶63 Martinez also argues that A.R.S § 13-4037(B) (2001),
which directs that “[u]pon an appeal . . . from the sentence on
the ground that it is excessive, the court shall have the power
to reduce the extent or duration of the punishment imposed, if,
in its opinion . . . the punishment imposed is greater than
under the circumstances of the case ought to be inflicted”
31
preserves this Court’s independent review.
¶64 At one time this Court purported to ground its power
for independent review of death sentences in this provision’s
predecessor. State v. Richmond, 114 Ariz. 186, 196, 560 P.2d
41, 51 (1976), abrogated in part by State v. Salazar, 173 Ariz.
399, 417, 844 P.2d 566, 584 (1992). The Court subsequently has
relied exclusively on A.R.S § 13-703.04 and its predecessors for
such authority. E.g., Velazquez, 216 Ariz. at 313, ¶ 58, 166
P.3d at 104. Because the legislature expressly abolished
independent review for murders committed after August 1, 2002,
any reliance on A.R.S § 13-4037 in the context of capital
sentencing is misplaced.
N
¶65 Martinez challenges both the jury’s finding of
aggravators and its determination that the mitigation evidence
presented was not sufficiently substantial to call for leniency.
We review to determine whether “the trier of fact abused its
discretion in finding aggravating circumstances and imposing a
sentence of death.” A.R.S. § 13-703.05(A). Consequently, “we
uphold a decision if there is any reasonable evidence in the
record to sustain it.” State v. Morris, 215 Ariz. 324, 340-41,
¶ 77, 160 P.3d 203, 219-20 (2007), cert. denied, 128 S. Ct. 887
(2008) (quotation marks and citation omitted).
32
1
¶66 Under A.R.S § 13-703(F)(5), a first degree murder is
aggravated if the homicide was committed “as consideration for
the receipt, or in expectation of the receipt, of anything of
pecuniary value.” Martinez argues that the (F)(5) aggravator
was not proven as a matter of law because the State failed to
establish that “but for” his pecuniary gain motive, the slaying
would not have occurred. See State v. Garza, 216 Ariz. 56, 68,
¶ 52, 163 P.3d 1006, 1018 (2007), cert. denied, 128 S.Ct. 890
(2008) (“To establish the (F)(5) aggravator, ‘the state must
prove that the murder would not have occurred but for the
defendant’s pecuniary motive.’”) (quoting State v. Ring (Ring
III), 204 Ariz. 534, 560, ¶ 75, 65 P.3d 915, 941 (2003)).
Pecuniary gain, however, need only be a motive for the murder,
not the sole motive. See State v. Hyde, 186 Ariz 252, 280, 921
P.2d 655, 683 (1996) (“Pecuniary gain need not be the exclusive
cause for a murder.”); accord State v. Boggs, ___ Ariz. ___,
___, ¶¶ 73-74, 185 P.3d 111, 126 (2008). The notion of a “but
for” relationship merely means that “[t]he state must establish
the connection between the murder and motive through direct or
strong circumstantial evidence.” Ring III, 204 Ariz. at 560, ¶
76, 65 P.3d at 941.
¶67 The jury did not abuse its discretion in finding the
33
(F)(5) aggravator here. It heard substantial evidence that
Aguilar was beaten and his jewelry taken. The jury heard that
he was ferried, while bound, to his own home where more property
was taken and was interrogated about the location of other
property. In addition, the jury heard evidence that Martinez
agreed to “rob” Aguilar. Martinez and his companions took steps
throughout the course of the crime to conceal Aguilar from
public view: Martinez kept him hidden in the trunk of a car and
helped ensure their broken down car was moved to a side street
before transferring Aguilar into the Explorer, which prevented
the victim from being seen at the gas station. When Aguilar was
conducted to the Explorer, Martinez parked the Explorer behind
the other car to obscure it from view, and Aguilar was covered
with a blanket. Finally, Aguilar’s body was burned, an attempt
to cover up the kidnapping, the robbery, and the murder itself.
¶68 These facts support the jury’s finding that Aguilar
was murdered to allow Martinez to keep the stolen property and
avoid capture. See Ellison, 213 Ariz. at 143, ¶¶ 124-25, 140
P.3d at 926 (record indicated that the defendant’s “motive for
the murders was to facilitate the burglary” where the defendant
went to the victims’ house with the intent to burglarize it,
knew the area and the victims, and did not conceal identity).
34
2
¶69 Under A.R.S. § 13-703(F)(6), a first degree murder is
aggravated when “[t]he defendant committed the offense in an
especially heinous, cruel or depraved manner.” “The ‘heinous,
cruel, or depraved’ aggravator is written in the disjunctive and
the state need prove only one of the three conditions to trigger
application of the aggravating circumstance.” Grell, 212 Ariz.
at 519 n.2, ¶ 8, 135 P.3d at 699 n.2. Accordingly, “[a] finding
of cruelty alone is sufficient to establish the F.6 aggravator.”
Morris, 215 Ariz. at 341, ¶ 80, 160 P.3d at 220.
¶70 “Cruelty involves the pain and distress visited upon
the victims” and “may be found when the victim consciously
experienced physical or mental pain prior to death, and the
defendant knew or should have known that suffering would occur.”
Anderson II, 210 Ariz. at 352 n.18, ¶ 109, 111 P.3d at 394 n.18
(quotation marks, substitution, and citations omitted).
Substantial evidence supports the jury’s conclusion that the
killing was “especially cruel.” Martinez was a major
participant in beating, kidnapping, and slaying Aguilar.
Indeed, he pulled the trigger for the shot that ultimately
killed Aguilar.
¶71 The State conclusively established that Martinez’s
ongoing physical violence against Aguilar caused Aguilar mental
35
anguish that Martinez knew or should have known would have
occurred. Ellison, 213 Ariz. at 142, ¶¶ 120-21, 140 P.3d at 925
(mental anguish shown when victims “experienced significant
uncertainty as to [their] ultimate fate”) (citation omitted).
Because the jury heard overwhelming evidence that the slaying
was especially cruel, we need not examine “whether the jury
abused its discretion in finding that the murders were also
heinous or depraved.” Morris, 215 Ariz. at 341, ¶ 80, 160 P.3d
at 220.
¶72 Martinez also argues that the (F)(6) aggravator is
“inapplicable” because “[e]verything that was cruel was done by
Mr. Summey-Montaño.” The record, however, is replete with
evidence of Martinez’s cruelty and the superior court expressly
instructed the jury not to impute Summey-Montaño’s conduct to
Martinez. Id. at 215 Ariz. at 337, ¶ 55, 160 P.3d at 216
(“Jurors are presumed to follow the judge’s instructions.”).
3
¶73 At the penalty phase, Martinez focused on claims of
family problems, including parental inattention. He also argued
the more lenient sentences given to Lopez, Bedoy, and Summey-
Montaño were mitigating circumstances and that Summey-Montaño
was more culpable. Martinez further pointed to the availability
of a life sentence, his age, family ties and remorse, his
36
impaired intelligence, and impairment from the use of drugs and
alcohol.
¶74 On appeal, however, Martinez focuses almost entirely
on his contention that the evidence presented to the jury showed
that the victim had committed “contributory conduct” and that
Martinez, because he claimed to have been abused as a child,
could not control himself when he was informed of Aguilar’s
alleged molestation of Summey-Montaño’s cousin.
¶75 Martinez’s attack on the victim’s supposed conduct is
not a compelling mitigating factor. Moreover, much of
Martinez’s argument is not supported by the record. The very
foundation of the claim — that Martinez was himself sexually
abused — was undermined by the absence of any evidence that
Martinez himself claimed abuse until his life depended on it.
The remainder of his mitigation evidence was unfocused and
largely rebutted by the State. The jury did not abuse its
discretion in finding this evidence not sufficiently substantial
to call for leniency.
O
¶76 The jury also convicted Martinez of kidnapping. See
A.R.S. § 13-1304(A)(3) (2001). It found that the offense was
dangerous and involved the intentional or knowing infliction of
serious physical injury. See A.R.S. § 13-604(I) (Supp. 2003).
37
¶77 At sentencing, the trial court found aggravating
circumstances, including the presence of accomplices, Martinez’s
criminal history, his use of drugs and alcohol, and “all factors
found by the jury that were considered by the jury as
aggravating factors including, but not limited to the pecuniary
gain” aggravator. The court sentenced Martinez to an aggravated
term of twenty years, to be served consecutively to his death
sentence. Martinez did not object to the trial judge, rather
than the jury, finding factors to justify an aggravated
sentence.
¶78 In Blakely v. Washington, the Supreme Court held that,
generally, any fact that increased a defendant’s sentence beyond
a “statutory maximum” must be proved to the jury beyond a
reasonable doubt. 542 U.S. 296, 301-05 (2004). Martinez now
claims his aggravated sentence for kidnapping was error.
¶79 Because Martinez did not object, we review this claim
for fundamental error and require that the “defendant . . .
establish . . . that fundamental error exists and that the error
in his case caused him prejudice.” Henderson, 210 Ariz. at 567,
¶¶ 19-20, 115 P.3d at 607 (citation omitted).
¶80 The State argues that no reasonable jury could fail to
find the aggravators the court identified. We agree. It was
uncontested that the kidnapping involved accomplices, a
38
statutory aggravating factor. A.R.S. § 13-702(C)(4) (Supp.
2003). Likewise, overwhelming evidence demonstrates that
Martinez and his cohorts restrained Aguilar, took jewelry from
him, and took him to his home where other property was taken
from him. A.R.S. § 13-702(C)(6). On this record, the trial
court did not commit fundamental error in aggravating Martinez’s
sentence for kidnapping.
III
¶81 Martinez raises seventeen issues to avoid preclusion
for federal review. They are presented as in his opening brief:
1. The reasonable doubt instruction of State v. Portillo,
182 Ariz. 592, 898 P.2d 970 (1995), dilutes and shifts
the burden of proof in violation of the Sixth
Amendment to the United States Constitution. Rejected
in Ellison, 213 Ariz. at 133, ¶ 63, 140 P.3d at 916.
2. The (F)(5) pecuniary gain aggravator is
unconstitutionally overbroad and fails to narrow in
violation of Arave v. Creech, 507 U.S. 463 (1993), and
the Eighth Amendment to the United States
Constitution. Rejected in State v. Greenway, 170
Ariz. 155, 163, 823 P.2d 22, 30 (1991).
3. The (F)(6) cruel, heinous and depraved aggravator is
unconstitutionally vague and overbroad because the
39
jury does not have enough experience or guidance to
determine when the aggravator is met. The finding of
this aggravator by a jury violates the Eighth and
Fourteenth Amendments to the United States
Constitution because it does not sufficiently place
limits on the discretion of the sentencing body, the
jury, which has no narrowing constructions to draw
from and give substance to the otherwise facially
vague law. Rejected in State v. Cromwell, 211 Ariz.
181, 188-90, ¶¶ 40-45, 119 P.3d 448, 455-57 (2005).
4. Arizona’s death penalty statute creates an
unconstitutional presumption of death and
impermissibly shifts to him the burden of proving that
mitigation is sufficiently substantial to call for
leniency in violation the Eighth and Fourteenth
Amendments to the United States Constitution and
Article 2, Section 15, of the Arizona Constitution.
Rejected in Baldwin, 211 Ariz. at 471-72, ¶¶ 9-17, 123
P.3d 665-66.
5. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments to the United States Constitution and
Article 2, Section 15, of the Arizona Constitution.
40
Rejected in Gregg v. Georgia, 428 U.S. 153, 186-87
(1976); State v. Harrod, 200 Ariz. 309, 320, ¶ 59, 26
P.3d 492, 503 (2001), judgment vacated on other
grounds by Harrod v. Arizona, 536 U.S. 953 (2002).
6. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and
Article 2, Section 15, of the Arizona Constitution.
Rejected in State v. Van Adams, 194 Ariz. 408, 422, ¶
55, 984 P.2d 16, 30 (1999).
7. The prosecutor’s discretion to seek the death penalty
has no standards and therefore violates the Eighth and
Fourteenth Amendments to the United States
Constitution and Article 2, Sections 1, 4, and 15, of
the Arizona Constitution. Rejected in State v.
Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d 1118, 1132
(2001), judgment vacated on other grounds by Sansing
v. Arizona, 536 U.S. 954 (2002).
8. Proportionality review serves to identify which cases
are above the norm of first degree murder, thus
narrowing the class of defendants who are eligible for
the death penalty. The absence of proportionality
review of death sentences by Arizona courts denies
41
capital defendants due process of law and equal
protection and amounts to cruel and unusual punishment
in violation of the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution and
Article 2, Section 15, of the Arizona Constitution.
Rejected in State v. Gulbrandson, 184 Ariz. 46, 73,
906 P.2d 579, 606 (1995).
9. Arizona’s capital sentencing scheme is
unconstitutional because it does not require the state
to prove the death penalty is appropriate or require
the jury to find beyond a reasonable doubt that the
aggravating circumstances outweigh the accumulated
mitigating circumstances. Instead, Arizona’s death
penalty statute requires defendants to prove their
lives should be spared, in violation of the Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution and Article 2, Section 15, of the Arizona
Constitution. Rejected in State v. Fulminante, 161
Ariz. 237, 258, 778 P.2d 602, 623 (1988).
10. Section 13-703 provides no objective standards to
guide the sentencer in weighing the aggravating and
mitigating circumstances in violation of the Eighth
and Fourteenth Amendments to the United States
42
Constitution and Article 2, Section 15, of the Arizona
Constitution. Rejected in State v. Pandeli (Pandeli
I), 200 Ariz. 365, 382, ¶ 90, 26 P.3d 1136, 1153
(2001), judgment vacated on other grounds by Pandeli
v. Arizona, 536 U.S. 953 (2002).
11. Arizona’s death penalty scheme is unconstitutional
because it does not require the sentencer to find
beyond a reasonable doubt that the aggravating
circumstances outweigh the accumulated mitigating
circumstances in violation of the Eighth and
Fourteenth Amendments to the United States
Constitution and Article 2, Section 15, of the Arizona
Constitution. Rejected in State v. Poyson, 198 Ariz.
70, 83, ¶ 59, 7 P.3d 79, 92 (2000).
12. Arizona’s death penalty scheme does not sufficiently
channel the sentencing jury’s discretion. Aggravating
circumstances should narrow the class of persons
eligible for the death penalty and reasonably justify
the imposition of a harsher penalty. Section 13-
703.01 is unconstitutional because it provides no
objective standards to guide the jury in weighing the
aggravating and mitigating circumstances. The broad
scope of Arizona’s aggravating factors encompasses
43
nearly anyone involved in a murder, in violation of
the Eighth and Fourteenth Amendments to the United
States Constitution and Article 2, Section 15, of the
Arizona Constitution. Rejected in Pandeli I, 200
Ariz. at 382, ¶ 90, 26 P.3d at 1153.
13. The fact-finder in capital cases must be able to
consider all relevant mitigating evidence in deciding
whether to give the death penalty. Woodson v. North
Carolina, 428 U.S. 280, 303-04 (1976). The trial
court’s failure to allow the jury to consider and give
effect to all mitigating evidence in this case by
limiting its consideration to that proven by a
preponderance of the evidence is unconstitutional
under the Eighth and Fourteenth Amendments to the
United States Constitution and Article 2, Section 15,
of the Arizona Constitution. Rejected in McGill, 213
Ariz. at 161, ¶ 59, 140 P.3d at 944.
14. By allowing victim impact evidence at the penalty
phase of the trial, the trial court violated
Defendant’s constitutional rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution and Article 2, Sections 1, 4, 13,
15, 23, and 24 of the Arizona Constitution. Rejected
44
in Lynn v. Reinstein, 205 Ariz. 186, 191, ¶¶ 15-17, 68
P.3d 412, 417 (2003).
15. The trial court improperly omitted from the penalty
phase jury instructions language to the effect that
the jury may consider mercy or sympathy in deciding
the value to assign the mitigation evidence, instead
telling the jury to assign whatever value it deemed
appropriate. The court also instructed the jury that
it must not be influenced by mere sympathy or by
prejudice in determining these facts, thus limiting
the mitigation the jury could consider in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution and Article 2, Sections
1, 4, 13, 15, 23, and 24 of the Arizona Constitution.
Rejected in State v. Carreon, 210 Ariz. 54, 70-71, ¶¶
83-87, 107 P.3d 900, 916-17 (2005).
16. The death penalty is an irreversible denial of human
rights and international law. Rejected in State v.
Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67 (1983).
17. Consecutive sentences for the felony murder conviction
and the underlying felony of kidnapping violate A.R.S.
§ 13-116 (2001) and the double jeopardy clause of the
Fifth Amendment to the United States Constitution.
45
Rejected in State v. Girdler, 138 Ariz. 482, 489, 675
P.2d 1301, 1308 (1983) (holding that consecutive
punishments for felony murder and predicate felony do
not violate double jeopardy).
IV
¶82 For the forgoing reasons, we affirm Martinez’s
convictions and sentences.
_______________________________________
Michael D. Ryan, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
46