State v. Martinez

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