State of Arizona v. Christopher Michael Montoya

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

CHRISTOPHER MICHAEL MONTOYA,
Appellant.

No. CR-22-0106-AP
Filed August 15, 2024

Appeal from the Superior Court in Maricopa County
The Honorable Michael W. Kemp, Judge
No. CR2017-006253-001
AFFIRMED

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Jason D. Lewis (argued),
Deputy Solicitor General/Section Chief of Capital Litigation, Phoenix,
Jason P. Gannon, Assistant Attorney General Capital Litigation Section
Chief Counsel, Capital Litigation Section, Tucson, Attorneys for State of
Arizona

Steve Koestner, Office of the Legal Advocate, Kerri L. Chamberlin, Michelle
DeWaelsche (argued), Deputy Legal Advocates, Phoenix, Attorneys for
Christopher Michael Montoya
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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ, and JUSTICES
BRUTINEL, BEENE, KING, and PELANDER joined. *
_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 This appeal arises from Christopher Montoya’s convictions
and sentences for first degree murder, second degree burglary, kidnapping,
aggravated identity theft, unlawful use of means of transportation, theft,
and two counts of animal cruelty. For the murder offense, Montoya was
sentenced to death. We have jurisdiction under article 6, section 5(3) of the
Arizona Constitution and A.R.S. §§ 13-4031 and -4033(A)(1). We affirm
Montoya’s convictions and sentences.

BACKGROUND

¶2 As a juvenile, Montoya received multiple referrals for reckless
burning, possession of marijuana and drug paraphernalia, and unlawful
use of a motor vehicle. As an adult, Montoya was convicted of vehicle theft,
possession of a stolen checkbook, possession of burglary tools, second
degree burglary, and aggravated assault. Montoya served two prison terms
and was placed on probation numerous times in connection with his
convictions. Additionally, Montoya abused marijuana and Coricidin, an
over-the-counter cough-and-cold medication, throughout his life and
around the times he committed the crimes at issue in this case.

¶3 In April 2017, Montoya met A.R. on a dating app. Almost
immediately after they started dating, Montoya brought his belongings to
A.R.’s house and frequently stayed the night there. But in June 2017, A.R.
broke up with Montoya after she discovered that he was still using dating
apps to connect with other women.

¶4 The day after she broke up with Montoya, A.R. changed her
door locks and garage code and took her garage door remote back from

* Justice William G. Montgomery is recused from this matter. Pursuant to
article 6, section 3 of the Arizona Constitution, Justice John Pelander (Ret.)
of the Arizona Supreme Court was designated to sit in this matter.
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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

him. In the months that followed, Montoya repeatedly called and texted
A.R., and he often parked outside A.R.’s house and waited for her.
Montoya’s refusal to leave A.R. alone made both A.R. and her family
nervous. A.R. considered obtaining a restraining order against Montoya,
but she was scared to contact the police or take other action against him

¶5 On October 13, 2017, Montoya broke into A.R.’s house and
waited in the dark for her to return. When A.R. arrived home that evening,
Montoya attacked her. At some point during the attack, Montoya
handcuffed A.R.’s hands behind her back, tied her feet together with a belt,
and took her to the master bedroom. Then, Montoya tortured A.R. with a
knife. Montoya extracted from A.R. her passwords and pin codes for her
cell phone, debit card, and email account. Then, Montoya killed A.R. by
hitting her in the head with a hammer at least fourteen times. After killing
her, Montoya wrapped A.R.’s body in a comforter and several tarps secured
by bungee cords and ropes, and he placed her on the floor in the master
bathroom. Montoya also killed one of A.R.’s dachshunds by covering him
with a pillow and lying on top of him until he was smothered, although it
is not clear if he did this before or after he killed A.R. Montoya placed the
dog’s dead body in a dog crate in the master bathroom with A.R.’s other,
still living, dog.

¶6 During the week following the fatal attack, Montoya made
several purchases through A.R.’s Amazon account and used her debit card
to make purchases throughout Phoenix. Montoya spent approximately
$13,713 of A.R.’s money before he was apprehended. He also removed
most of A.R.’s personal belongings from her home. Additionally, Montoya
drove around in A.R.’s vehicle.

¶7 To evade suspicion, Montoya used A.R.’s phone to text A.R.’s
family, friends, and coworkers. A.R.’s loved ones became suspicious
because the text messages were atypical. On October 24, 2017, A.R.’s family
and friends requested a welfare check for A.R., and police discovered A.R.’s
body. A.R.’s back door was shattered, the walls were covered in blood
spatter, and a substantial amount of blood was on the master bed. Police
also discovered A.R.’s living dog trapped in the crate, on the brink of death
himself, with his dead companion. Montoya quickly became the primary
suspect in A.R.’s murder.

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

¶8 The State indicted Montoya on first degree murder, second
degree burglary, kidnapping, aggravated identity theft, unlawful use of
means of transportation, theft, and two counts of animal cruelty. Roughly
three years into the case, Montoya pleaded guilty to the charges in the
indictment. He also admitted to two capital aggravators: that he committed
previous serious offenses and that he murdered A.R. in an especially cruel
and especially heinous manner. Montoya waived the presentation of
mitigation evidence, except he permitted his attorneys to submit the
records of his guilty pleas and mitigation waiver hearings as evidence of
acceptance of responsibility. He also agreed his attorneys could
cross-examine witnesses called by the State and, during closing argument,
argue for any mitigating circumstances that arose during
cross–examination.

¶9 After the penalty phase of the trial, the jury returned a death
verdict. The court sentenced Montoya to death for the first degree murder
of A.R. and to a combined 103 years in prison for the seven non-capital
counts. This automatic appeal followed.

DISCUSSION

A. Prosecutorial Error

¶10 Montoya argues the prosecutor committed persistent and
pervasive errors that denied him the rights to due process, to a fair trial,
and to be free from arbitrary and capricious punishment. “Typically, we
review each alleged incident individually for error, after which we decide
whether the cumulative effect of any errors we find ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due
process.’” State v. Robinson, 253 Ariz. 121, 143 ¶ 64 (2022) (quoting State v.
Payne, 233 Ariz. 484, 511 ¶ 106 (2013)). To that end, a defendant must
demonstrate that “(1) [error] exists and (2) ‘a reasonable likelihood exists
that the [error] could have affected the jury’s verdict, thereby denying [the]
defendant a fair trial.’” State v. Morris, 215 Ariz. 324, 335 ¶ 46 (2007)
(quoting State v. Anderson, 210 Ariz. 327, 340 ¶ 45 (2005)). Accordingly, we
address each assignment of error in turn.

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

1. Argument of unproven aggravator

¶11 Montoya claims that the prosecutor erred by arguing an
unproven aggravator, specifically the relishing theory of heinousness,
during closing argument. While discussing the moments leading up to
A.R.’s death, the prosecutor stated: “One can only imagine the control he
had over her and how he may have enjoyed it.” Defense counsel objected
for lack of foundation but did not move to strike the statement. The court
sustained the objection.

¶12 The parties dispute whether Montoya’s objection preserved
the issue for harmless error analysis. “The purpose of an objection is to
permit the trial court to rectify possible error and to enable the opposition
to obviate the objection if possible.” State v. Hoffman, 78 Ariz. 319, 325 (1955)
(internal citation omitted). If a defendant properly objects to a prosecutor’s
statement, we review the statement for harmless error. State v. Henderson, 210 Ariz. 561, 567 ¶ 18 (2005). Under the harmless error standard, we must
discern (1) whether the statement was error, and (2) if it was error, whether
the State has proven beyond a reasonable doubt that the error did not affect
Montoya’s sentence. See id.

¶13 “However, raising one objection at trial does not preserve [a
different] objection on appeal.” State v. Long, 119 Ariz. 327, 328 (1978).
Thus, to preserve the issue of prosecutorial error, defense counsel’s
objection must have “adequately raise[d] the claim of prosecutorial [error]
in the trial court.” State v. Rutledge, 205 Ariz. 7, 13 ¶ 30 (2003). “[W]e will
consider a matter on appeal not raised below [only] if it is a matter of
fundamental error.” State v. Vickers, 129 Ariz. 506, 510 (1981). “A defendant
establishes fundamental error by showing that (1) the error went to the
foundation of the case, (2) the error took from the defendant a right essential
to his defense, or (3) the error was so egregious that he could not possibly
have received a fair trial. If the defendant establishes fundamental error
under prongs one or two, he must make a separate showing of
prejudice . . . .” State v. Escalante, 245 Ariz. 135, 142 ¶ 21 (2018).

¶14 We need not decide if Montoya’s objection was sufficient to
preserve this issue for harmless error analysis. The prosecutor did not
commit error.

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

¶15 Prosecutors “are ordinarily given wide latitude in closing
argument.” State v. Leon, 190 Ariz. 159, 162 (1997). A “prosecutor may
argue the facts and reasonable inferences from the evidence at the penalty
phase,” State v. Cota, 229 Ariz. 136, 151 ¶ 80 (2012), but “it is improper to
argue a non-alleged aggravating circumstance,” State v. Nelson, 229 Ariz.
180, 189 ¶ 40 (2012).

¶16 Capital aggravators are listed in A.R.S. § 13-751(F) (2012), 1
and they include that “[t]he defendant committed the offense in an
especially heinous, cruel or depraved manner,” § 13-751(F)(6). Because the
(F)(6) aggravator is written in the disjunctive, the State need only establish
that the murder was especially heinous or especially cruel or especially
depraved to support a finding of the aggravating circumstance. State v.
Gretzler, 135 Ariz. 42, 51 (1983). The (F)(6) aggravator may be counted only
once, but a finding of two or more of the (F)(6) factors may increase the
weight accorded to the aggravator. State v. Miller, 186 Ariz. 314, 327 (1996).

¶17 There are numerous facts that support a finding of
heinousness, including “the infliction of gratuitous violence on the victim,”
which Montoya admitted, and “the apparent relishing of the murder by the
killer,” which Montoya did not admit. See Gretzler, 135 Ariz. at 52. To
establish relishing, the State must establish “that the defendant sa[id] or
d[id] something, other than the commission of the crime itself, to show he
savored the murder.” State v. Roscoe, 184 Ariz. 484, 500 (1996).

¶18 Here, the prosecutor did not argue relishing as an unproven
aggravator. As an initial matter, the prosecutor’s statement did not even
reference facts that could be used to support a finding of relishing because
the prosecutor did not assert Montoya did something, other than the
commission of the crimes themselves (which is not enough to prove
relishing), that showed he savored murdering A.R. Moreover, although the
prosecutor said Montoya “may have enjoyed” the control he exercised over
A.R. in relation to kidnapping her, the prosecutor did not suggest he savored
murdering her.

1 All references to § 13-751 refer to the 2012 version, the version in effect at
the time of Montoya’s penalty phase and sentencing.
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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

¶19 Even if the prosecutor’s statement did reference facts that
would support a finding of relishing, merely referencing a fact that could
be used to support the (F)(6) aggravator does not always amount to alleging
an unproven aggravator. Nelson, 229 Ariz. at 189–90, ¶¶ 40–41. In Nelson,
the prosecutor described the victim as “a helpless victim” and asked “why
did [the defendant] have to kill [the victim]?” Id. at 189 ¶ 40. We rejected
the defendant’s contention that the prosecutor argued an unproven
aggravator, reasoning that “[a]lthough ‘helpless’ and ‘senseless’ are terms
used to describe the (F)(6) aggravator, the prosecutor did not suggest its
existence by using these words, nor did she argue that such an aggravator
be considered.” Id. at 190 ¶ 41. Moreover, “the jury was unaware of the
legal significance of these words because the State did not allege and the
court did not instruct on the (F)(6) aggravator.” Id. Like in Nelson, the jury
in this case was not aware of the legal significance of relishing because the
prosecutor did not argue that the jury should consider relishing as an
aggravating factor, and the court did not instruct the jury on relishing as an
aggravating factor. Thus, the prosecutor’s statement did not constitute
arguing an unproven aggravator. There was no error.

¶20 Even if the prosecutor had argued an unproven aggravator,
Montoya could not show that the error “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” See Robinson,
253 Ariz. at 143 ¶ 64 (quoting Payne, 233 Ariz. at 511 ¶ 106). As discussed
above, the jury was unaware of the legal significance of relishing.
Additionally, the court sustained Montoya’s objection to the statement and
the court instructed jurors that closing arguments were not evidence. See
State v. Moody, 208 Ariz. 424, 460 ¶¶ 151–52 (2004) (concluding a statement
did not require reversal where it “was promptly objected to, and was
rendered less harmful by instructions by the court”); State v. Gallardo, 225
Ariz. 560, 569 ¶ 40 (2010) (stating that this Court presumes “that jurors
follow the court’s instructions”). Even Montoya acknowledges that the
State “was practically guaranteed a death verdict,” in light of his decision
to plead guilty, admit two capital aggravators, and present very little
mitigation evidence. See State v. Comer, 165 Ariz. 413, 427 (1990) (“In light
of the overwhelming evidence of [the defendant’s] guilt, it is evident that
the prosecutor’s comments did not contribute to the verdict.”).
Accordingly, there was no error, and, even if there had been error, such
error would not require reversal.

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

¶21 Montoya also argues the prosecutor’s statement caused the
(F)(6) aggravator to be broadly construed, and therefore resulted in an
arbitrary and capricious death verdict. Although the (F)(6) aggravator is
facially vague, it may be constitutionally applied if the jury instructions
“provide[] a sufficiently ‘narrowed construction.’” Anderson, 210 Ariz.
at 352–53 ¶¶ 109–14. Here, the jury instructions defined “especially,”
“especially cruel,” and “especially heinous” in a manner that provided a
sufficiently narrowed construction. The instructions stated what
aggravators Montoya admitted and required the jury to accept those
admissions. The jury instructions specified that Montoya admitted that he
committed the murder in an especially cruel manner because he caused
A.R. to consciously suffer pain, distress, or anguish prior to her death, and
that he knew or should have known that she would suffer. The instructions
also specified that Montoya admitted that he committed the murder in an
especially heinous manner because he inflicted gratuitous violence on A.R.
beyond what was necessary to cause her death. The jury was not instructed
on the relishing theory of heinousness. The prosecutor’s statement did not
change the scope or meaning of these instructions. Accordingly, the
prosecutor’s statement did not result in the imposition of an arbitrary and
capricious verdict.

2. Appeal to jurors’ emotions

¶22 Montoya argues that the prosecutor invited the jury to impose
the death penalty based on emotion. In closing argument, the prosecutor
stated: “The punishment in this case should reflect the horror, the shock,
and the disgust that all of you must have felt when you learned of the cruel
death this defendant chose to impose upon [A.R.].” Because Montoya did
not object, we review the statement for fundamental error. See State v.
Bocharski, 218 Ariz. 476, 491 ¶ 74 (2008).

¶23 Prosecutors may not improperly “appeal to the passions and
fears of the jury,” but they “may comment on the vicious and inhuman
nature of the defendant’s acts.” Comer, 165 Ariz. at 426. We approved of a
similar prosecutorial statement in State v. Riley, 248 Ariz. 154 (2020). There,
the prosecutor stated in closing argument: “We can show our outrage at
this crime through your verdict. We can show outrage at this crime through
the punishment of the defendant.” Id. at 193 ¶ 154. We concluded “i[t]
[was] not clear that [the] statement appealed to the jury’s passions at all”

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

because “[a]n invitation to show ‘outrage’ at the crime does not invite the
jury to punish the defendant on anything other than the evidence presented
at trial.” Id. ¶ 155.

¶24 Here, the prosecutor’s statement that Montoya’s punishment
should “reflect the horror, the shock, and the disgust” the jurors felt when
they “learned of the cruel death [Montoya] chose to impose upon [A.R.]”
was a permissible comment on Montoya’s “vicious and inhuman” crime,
see Comer, 165 Ariz. at 426, not an improper appeal to the jurors’ passions.
The prosecutor’s characterization of A.R.’s “cruel death” as horrifying,
shocking, and disgusting was germane to the aggravating factor that
Montoya murdered A.R. in an especially cruel and especially heinous
manner. We also note that the prosecutor immediately followed up the
statement in question by telling the jurors they “must not be swayed by
mere sympathy or emotion.” Thus, the statement did not invite the jury to
punish Montoya based “on anything other than the evidence presented at
trial.” Riley, 248 Ariz. at 193 ¶ 155. Accordingly, the court did not err by
failing to sua sponte strike the statement.

3. Use of victim impact statements to argue for death

¶25 Next, Montoya argues the prosecutor impermissibly used the
victim impact statements to argue for death by “parroting” their “running
theme” of theft. A.R.’s family members provided victim impact statements
which made several references to what Montoya had “taken” or “robbed”
from them and “denied” them. These included statements that Montoya
took A.R.’s life, their ability to make amends with A.R. after an argument,
and their ability to grow their relationship with A.R.; that Montoya robbed
A.R.’s family from having her as a great family member; and that Montoya
denied A.R. decency in her death. In closing argument, the prosecutor
referenced what Montoya “stole” and “took” from A.R. and her family,
including A.R.’s life, her moral constituency and dignity, and the ability of
A.R.’s family to give her an open-casket funeral. The prosecutor also stated
that Montoya assumed A.R.’s identity to prolong his ability to steal A.R.’s
money and possessions. Because Montoya did not object, we review for
fundamental error. See Bocharski, 218 Ariz. at 491 ¶ 74.

¶26 A murder victim’s surviving family members are victims
under Arizona’s Victims’ Bill of Rights. Ariz. Const. art. 2, § 2.1(C); A.R.S.

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

§ 13-752(S)(2). Victims have a right to be heard at sentencing proceedings
and to present victim impact statements. Ariz. Const. art. 2, § 2.1(A)(4);
§ 13-752(R). Although victims are permitted to provide victim impact
statements, “they may not offer any opinion or recommendation about an
appropriate sentence.” Ariz. R. Crim. P. 19.1(e)(3); see also Lynn v. Reinstein, 205 Ariz. 186, 191 ¶ 17 (2003) (holding the Eighth Amendment bars victims
from offering sentencing recommendations).

¶27 “Because the jury may consider victims’ statements in making
its sentencing decision, the prosecutor may discuss them in his closing
argument.” State v. Roque, 213 Ariz. 193, 225 ¶ 132 (2006), abrogated in part
on other grounds by State v. Escalante-Orozco, 241 Ariz. 254 (2017); see also
Payne v. Tennessee, 501 U.S. 808, 827 (1991) (holding a prosecutor may use
victim impact statements to argue for death); State v. Hulsey, 243 Ariz. 367,
391–92 ¶¶ 108–11 (2018) (holding prosecutor’s recitation of victim impact
statement was “not unduly prejudicial and no fundamental error
occurred”).

¶28 Here, it is not even clear that the prosecutor referenced the
victim impact statements. The prosecutor’s reference to Montoya’s stealing
and taking from A.R. and her family were common ways to describe
Montoya’s crimes and the harm he caused. A.R.’s family members’
references to what Montoya robbed and took from them and denied them
did not preempt the prosecutor from using those terms. To the extent the
prosecutor did reference the victim impact statements, the prosecutor was
permitted to do so. See Roque, 213 Ariz. at 225 ¶ 132; Hulsey, 243 Ariz.
at 391–92 ¶¶ 108–11; Payne, 501 U.S. at 827. The prosecutor’s statements
were supported by the evidence—Montoya did in fact take A.R.’s life and
dignity, and he stole her identity, money, vehicle, phone, and other
personal belongings. See Cota, 229 Ariz. at 151 ¶ 80 (stating that a
“prosecutor may argue the facts and reasonable inferences from the
evidence at the penalty phase”). We do not find error, much less
fundamental error.

4. Use of comparative life arguments

¶29 Montoya argues that the prosecutor erred by making
improper comparative life arguments. At closing argument, the prosecutor
stated: “When you hear the word mercy, think of the mercy that the

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

defendant showed [A.R] in her last moments. How he must have looked
down on her with each blow, inflicting pain and death.” Additionally, in
her victim impact statement, A.R.’s sister explained that she and A.R. had
argued the last time that they spoke and now could not make amends, and
the sister also recounted A.R.’s thirty-second birthday. Then in closing
argument, the prosecutor stated: “A life sentence in this case will guarantee
[Montoya] birthdays, talking to loved ones, having visitations, and
resolv[ing] any unresolved issues with family and friends.” Because
Montoya did not object, we review for fundamental error. See Bocharski, 218
Ariz. at 491 ¶ 74.

¶30 Prosecutors are permitted to draw comparisons between a
defendant and a victim. See, e.g., Roque, 213 Ariz. at 225 ¶ 133. However,
“[c]ourts in other states have found that comparative life arguments are
improper and constitute grounds for reversal.” State v. Allen, 248 Ariz. 352,
365 ¶ 49 (2020). A comparative life argument is an argument that asks the
jury to value the defendant’s and victim’s lives and weigh those values
against each other when determining the appropriate punishment. We
have never decided whether comparative life arguments are proper, see
Roque, 213 Ariz. at 225 ¶ 133, and we decline to decide the issue today
because the prosecutor in this case did not make a comparative life
argument.

¶31 We have upheld similar statements of comparison made by
prosecutors in closing argument. For example, in Roque, the prosecutor
compared the defendant and the victim but stopped short of making a
value comparison: “Defendant worked numerous years in the American
aircraft industry. That’s true. That’s true. [The victim] worked a number
of years in this country driving a cab [and] working behind the counter of
a store. The defendant is married. [The victim] was married.” Id.
at 224 ¶ 131 (second alteration in original). We determined that we did not
need to “decide whether a prosecutor’s statement comparing the value of
the life of the defendant with that of the victim is proper because in [that]
case the prosecutor stopped before making a value argument. He
summarized evidence that both [the defendant] and [the victim] worked
and were married. This was a comparison of the two, but not a valuation
of the two.” Id. at 225 ¶ 133.

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Opinion of the Court

¶32 Here, the prosecutor merely summarized the brutality
Montoya inflicted on A.R. and the opportunities that would be afforded to
Montoya through a life sentence. She did not link these opportunities to
ones lost by A.R. The prosecutor made no reference to the respective values
of A.R.’s and Montoya’s lives and did not encourage the jury to weigh the
values of their lives against one another. Thus, we do not find error, much
less fundamental error.

5. Use of mitigation as non-statutory aggravation

a. Acceptance of responsibility

¶33 Montoya argues the prosecutor erred by using his acceptance
of responsibility as a non-statutory, aggravating circumstance. Roughly
three years into the case, Montoya pleaded guilty to the indictment without
the benefit of a plea agreement. Although Montoya generally waived the
presentation of mitigation evidence, he permitted his attorneys to submit
the records of his guilty plea and mitigation waiver hearings as evidence of
his acceptance of responsibility, a mitigating circumstance. In closing
argument, the prosecutor argued that the jury should not give much weight
to Montoya’s acceptance of responsibility in light of the overwhelming
evidence of his guilt. The prosecutor also intimated that Montoya’s
acceptance of responsibility could have been disingenuous, rhetorically
asking: “Or was this a calculated decision by the defendant, knowing that
it could be argued by his lawyers as mitigating?” Additionally, the
prosecutor referenced testimony that stated that defendants often plead
guilty in exchange for more lenient sentences. Because Montoya did not
object, we review for fundamental error. See Bocharski, 218 Ariz. at 491 ¶ 74.

¶34 “Acceptance of responsibility is a non-statutory mitigating
circumstance, and the trial court is constitutionally required in capital cases
to admit proffered evidence of this aspect of a defendant’s character.”
Busso-Estopellan v. Mroz, 238 Ariz. 553, 554 ¶ 6 (2015) (internal citations
omitted). “[T]he Eighth and Fourteenth Amendments require that the
sentencer . . . not be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than
death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978). Due process prohibits a

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Opinion of the Court

jury from considering a mitigating circumstance as a non-statutory
aggravating circumstance. See Zant v. Stephens, 462 U.S. 862, 885 (1983).

¶35 However, “[o]nce the jury has heard all of the defendant’s
mitigation evidence, there is no constitutional prohibition against the State
arguing that the evidence is not particularly relevant or that it is entitled to
little weight.” Anderson, 210 Ariz. at 350 ¶ 97; see also State v. Johnson, 247
Ariz. 166, 187 ¶ 54 (2019) (“The State may rebut the motivation of the plea
offers by showing that some motivating factor compelled the plea offer
other than remorse or an acceptance of responsibility.”). “A prosecutor
may properly urge the jury to give more weight to a defendant’s crimes
than to the mitigation evidence.” State v. Goudeau, 239 Ariz. 421, 468 ¶ 212
(2016).

¶36 Here, the prosecutor’s argument that Montoya’s acceptance
of responsibility was entitled to little weight in light of the overwhelming
evidence of guilt was proper. Additionally, it was reasonable for the
prosecutor to question whether Montoya’s acceptance of responsibility was
calculated as mitigation evidence or a true expression of responsibility for
his crimes. Montoya pleaded guilty around three years into the case.
Although Montoya argues that he did not know his guilty plea could be
used as mitigation, evidence to the contrary exists. Specifically, he
permitted his attorneys to submit the transcript of his guilty plea as
mitigation, and he even participated in a second mitigation-waiver
colloquy to record a video that he could play for the jury.

¶37 Also, the prosecutor’s reference to testimony stating that
defendants often plead guilty in exchange for a more lenient sentence was
proper because, although Montoya did not receive a plea agreement in this
case, the statement was relevant to Montoya’s argument that his decision
to plead guilty in prior criminal cases demonstrated that he always
accepted responsibility for his crimes. Thus, the statements were not error.

b. Family ties

¶38 Montoya also argues the prosecutor erred by using Montoya’s
abandonment by his biological and adoptive fathers and his having a
daughter as non-statutory, aggravating circumstances. In closing
argument, the prosecutor argued that the fact that Montoya’s biological and

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

adoptive fathers abandoned him was entitled to little weight as mitigating
evidence because he had abandoned his own daughter; further, his having
a daughter was entitled to little weight as a mitigating circumstance
because he had no relationship with her. Because Montoya did not object,
we review these statements for fundamental error. See Bocharski, 218 Ariz.
at 491 ¶ 74.

¶39 A defendant’s family ties and abandonment by his family are
mitigating circumstances. State v. Moore, 222 Ariz. 1, 22 ¶ 134 (2009); State
v. Dann, 220 Ariz. 351, 375 ¶ 137 (2009). As we have already discussed, the
State may argue that mitigating “evidence is not particularly relevant or
that it is entitled to little weight.” Anderson, 210 Ariz. at 350 ¶ 97. Here, the
prosecutor’s statements were proper rebuttal to Montoya’s mitigation
arguments.

6. Misstatement of law

¶40 Montoya argues the prosecutor misstated the law on
mitigation during closing argument. The prosecutor stated: “If you find a
fact or circumstance to be nothing more than an excuse or a justification for
the murder, then it isn’t mitigating.” The jury instructions provided:
“Mitigating circumstances are not an excuse or justification for the offense,
but are factors that in fairness or mercy may reduce the defendant’s moral
culpability.” Because Montoya did not object, we review for fundamental
error. See Bocharski, 218 Ariz. at 491 ¶ 74.

¶41 A prosecutor “may not misstate the law to the jury.” State v.
Serna, 163 Ariz. 260, 266 (1990). But a prosecutor may rephrase the jury
instructions if doing so does not create a conflict with the court’s
instructions. State v. Allen, 253 Ariz. 306, 359 ¶¶ 198–99 (2022). We
previously found no error where a prosecutor restated a mitigation jury
instruction in a manner almost identical to how the prosecutor restated the
instructions in this case. Id. In Allen, the prosecutor stated in closing
argument: “[I]f you find a fact or circumstance that was offered to be
nothing more than an excuse or a justification for the murder, then it isn’t
mitigating.” Id. ¶ 198. We held the statement was not error “in light of the
jury’s other instructions on mitigation” and because “[a]lthough the
statement may have rephrased the jury instruction’s standard, it did not
necessarily conflict with the instructions’ clarification that mitigating

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

circumstances are not an excuse or justification for the crime.” Id. ¶ 199. We
do not find error, much less fundamental error.

7. Vouching

¶42 Montoya argues the prosecutor engaged in improper
vouching in relation to a detective’s testimony. On direct examination, the
prosecutor asked the detective whether cell phone activity evidence in the
case was overwhelming, and the detective answered that it was “the largest
amount that [he] ha[d] seen in 25 years.” Then in closing argument, the
prosecutor referenced the detective’s characterization of the evidence as
“the largest amount” he had seen. Because Montoya did not object, we
review for fundamental error. See Bocharski, 218 Ariz. at 491 ¶ 74.

¶43 There are two forms of prosecutorial vouching: “(1) where the
prosecutor places the prestige of the government behind its witness; [or] (2)
where the prosecutor suggests that information not presented to the jury
supports the witness’s testimony.” State v. Vincent, 159 Ariz. 418, 423 (1989).
Montoya alleges the prosecutor’s statements constitute the latter. This
“type of vouching involves prosecutorial remarks that bolster a witness’s
credibility by reference to matters outside the record.” State v. King, 180
Ariz. 268, 277 (1994) (internal quotation mark omitted) (quoting United
States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). Here, the prosecutor did
not make a “reference to matters outside the record” to support the
detective’s testimony. Id. Thus, the prosecutor did not engage in improper
vouching.

¶44 Montoya also argues that the prosecutor engaged in improper
vouching in her questioning of a forensic anthropologist. Multiple medical
professionals examined A.R.’s body. One professional noted fourteen head
injuries, whereas another professional noted eight. In response to
questioning by the prosecutor, the forensic anthropologist explained that
the medical professionals used different techniques to reach their
conclusions. She also explained that the professional who reported
fourteen head injuries was a specialist at identifying impact sites, whereas
the professional who noted eight head injuries was a generalist. Because
Montoya did not object, we review for fundamental error. See Bocharski, 218
Ariz. at 491 ¶ 74.

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Opinion of the Court

¶45 Montoya alleges the prosecutor placed the prestige of the
government behind the medical professional that reported fourteen head
injuries because her questioning “involve[d] personal assurances of [the
medical professional’s] veracity.” See King, 180 Ariz. at 277 (internal
quotation mark omitted) (quoting Roberts, 618 F.2d at 533). But the
prosecutor did not place the prestige of the State behind this witness. The
prosecutor did not make any personal assurances about the forensic
anthropologist’s background. Instead, the prosecutor asked the forensic
anthropologist to educate the jury on how different medical experts,
applying different methods, could report a different number of impact sites.
The prosecutor’s questioning was proper solicitation of “cold” expert
testimony. See State v. Salazar-Mercado, 234 Ariz. 590, 591 ¶ 1 (2014)
(“‘[C]old’ expert testimony . . . educates the fact-finder about general
principles without considering the particular facts of the case.”). Thus, the
prosecutor did not engage in improper vouching.

8. Solicitation of character evidence

¶46 Montoya argues the prosecutor erred by questioning Larry
Binkley, Montoya’s uncle, about the crimes Montoya committed against
him and about Montoya’s character. We review “a trial court’s admission
of evidence during the penalty phase for abuse of discretion.” State v.
Champagne, 247 Ariz. 116, 142 ¶ 87 (2019). “The threshold for relevance is a
low one . . . .” Roque, 213 Ariz. at 221 ¶ 109. Because Montoya did not
object, we review any abuse of discretion for fundamental error. See
Bocharski, 218 Ariz. at 491 ¶ 74.

¶47 The scope of mitigation rebuttal evidence is broad. Section
13-752(G) provides:

At the penalty phase, the defendant and the state may present
any evidence that is relevant to the determination of whether
there is mitigation that is sufficiently substantial to call for
leniency. In order for the trier of fact to make this
determination, regardless of whether the defendant presents
evidence of mitigation, the state may present any evidence that
demonstrates that the defendant should not be shown
leniency including any evidence regarding the defendant’s
character, propensities, criminal record or other acts.

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Opinion of the Court

(Emphasis added); see also § 13-751(G) (“The trier of fact shall consider as
mitigating circumstances any factors proffered by the defendant or the state
that are relevant in determining whether to impose a sentence less than
death, including any aspect of the defendant’s character, propensities or
record and any of the circumstances of the offense . . . .”).

¶48 Under §§ 13-752(G) and -751(G), rebuttal evidence need not
be relevant to the mitigation evidence proffered by the defendant.
Champagne, 247 Ariz. at 142 ¶ 90. The statutes plainly provide that evidence
relating to a defendant’s character is relevant rebuttal evidence. Id. ¶ 89.
Additionally, “[f]acts underlying a prior criminal conviction are relevant to
show that a defendant is not entitled to leniency and may be properly
admitted when not unduly prejudicial.” Id. at 143 ¶ 92. For example, in
Champagne, we held the trial court did not abuse its discretion by admitting
testimony from prior victims that discussed the details of the defendant’s
prior crimes and the victims’ resulting injuries and an audio recording of a
prior shootout that the defendant was criminally involved in (that included
some audio of a victim screaming) because the evidence demonstrated the
defendant’s character and propensities. Id. at 142–45 ¶¶ 91–93, 99–101.

¶49 Here, Binkley provided proper testimony regarding
Montoya’s prior crimes and character. This testimony was plainly within
the scope of § 13-752(G). Montoya has not demonstrated that the evidence
was so unduly prejudicial that its admission violated his due process rights.
Thus, the prosecutor’s questioning of Binkley was proper.

9. Commenting on Montoya’s decision not to allocute

¶50 Montoya argues that the prosecutor impermissibly
commented on his decision not to allocute. In closing argument and while
discussing the especially cruel and heinous aggravator, the prosecutor
stated:

We also know that [A.R.’s] phone code, debit pin, and
password were on a sheet of paper found in the defendant’s
truck in Mineral County, [Nevada]. When [A.R.] had to give
those up, any threats that went along with that, whether
smothering Spike, her beloved puppy, had anything to do
with giving up that information, we will never know.

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

¶51 Then, while arguing that Montoya did not deserve leniency,
the prosecutor stated:

He then chose to get all of her passwords. We don’t know how
he got them from her. The only witness to him during these
moments was [A.R.]. Then the brutal death with the hammer
to her head over and over and over again. We don’t know
why he chose to kill in such a manner. Only he does.

....

We don’t know if she pled for mercy or leniency. We don’t
know what he said to her. We don’t know a lot because he did
everything he could to get away with this crime and go on
living his life.

Because Montoya did not object, we review for fundamental error. See
Bocharski, 218 Ariz. at 491 ¶ 74. “Although an improper comment on
defendant’s failure to [allocute] can be harmless error in some cases, in
other cases it can be fundamental error.” State v. Hughes, 193 Ariz. 72, 86
¶ 63 (1998) (internal citation omitted). “The error can be fundamental
whether the comment is direct or indirect.” Id.

¶52 Criminal defendants have a constitutional and statutory right
to refuse to allocute. U.S. Const. amends. V, XIV; Ariz. Const. art. 2, § 10;
A.R.S. § 13-117(A). A prosecutor’s statement that “naturally and
necessarily” draws the jury’s attention to a defendant’s failure to allocute is
improper if it (1) “supports an unfavorable inference against the
defendant,” and (2) operates “as a penalty for [a] defendant’s exercise of his
constitutional right.” State v. Schrock, 149 Ariz. 433, 438 (1986); see also
§ 13-117(B). To determine “whether the jury would naturally and
necessarily perceive” a comment to be “on the defendant’s failure to
[allocute],” we examine the comment in context, looking “to the entire
record and to the totality of the circumstances.” Rutledge, 205 Ariz. at 13
¶ 33.

¶53 Here, the prosecutor’s statements correctly reflected the fact
that many details surrounding A.R.’s death were unknown. The prosecutor
properly used A.R.’s family’s statements that much of their grief stemmed
from the unknown aspects of A.R.’s death to rebut Montoya’s acceptance
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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

of responsibility mitigation and to argue for death. See Payne, 501 U.S.
at 827. The prosecutor’s statements also properly called attention to
Montoya’s deception following his murder of A.R. The statements that it
was unknown how Montoya extracted A.R.’s passwords and whether she
pled for mercy spoke to a reasonable inference that A.R. likely experienced
anguish and suffering during the process, whether through threats or
Montoya’s killing of her dog. This inference was germane to the strength
of the especially cruel aggravator. The statement that it was unknown why
Montoya chose to kill A.R. by striking her in the head fourteen times with
a hammer—a close and personal manner of killing—highlighted Montoya’s
indifference to A.R.’s suffering. This statement was also germane to the
especially cruel and heinous aggravator. We cannot say the prosecutor’s
statements were calculated to draw attention to Montoya’s failure to
allocute, or that the statements operated as a penalty against Montoya for
exercising his constitutional right, especially given that guilt and
aggravators were established. We do not find error.

10. Cumulative effect of prosecutorial error

¶54 Montoya argues that the cumulative effect of the alleged
errors denied him due process of law and warrants reversal of his death
sentence. “We consider whether ‘persistent and pervasive’ [error] occurred
and whether the ‘cumulative effect of the [errors] shows that the prosecutor
intentionally engaged in improper conduct and did so with indifference, if
not a specific intent, to prejudice the defendant.’” Gallardo, 225 Ariz. at 570
¶ 46 (quoting Morris, 215 Ariz. at 335 ¶ 47). Here, we have identified no
instances of prosecutorial error. We hold the cumulative effect of the
prosecutor’s above-board conduct did not deprive Montoya of a fair trial.

B. Voir Dire

¶55 Montoya argues that the court violated his right to a fair and
impartial jury by limiting his use of a hypothetical question and asking
rehabilitative questions during voir dire. Montoya requested permission to
ask the following hypothetical question during voir dire, without
mentioning mitigation:

Imagine that you have been selected to be on a jury for
another case where you and your fellow jurors listened to all

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Opinion of the Court

the evidence and decided that the defendant was guilty of a
first-degree premeditated murder of an innocent victim. The
evidence showed the defendant decided to kill the victim and
did so. He wasn’t intoxicated, insane or intellectually
disabled. This wasn’t self-defense, in the heat of passion or
duress. There was no legal justification. This was a
meant-to-do-it, cold blooded killing of an innocent victim and
you and the jury found him guilty. How then do you feel
about the death penalty as the only appropriate punishment
for this guilty murderer?

¶56 The judge ruled that defense counsel could ask potential
jurors the hypothetical question only if defense counsel also discussed
mitigation. The judge further explained that if he “need[ed] to jump in and
clarify or further explain” mitigation that he would do so.

¶57 Potential jurors completed a jury questionnaire. The
questionnaire contained the following questions:

96. Do you believe that a person who had pled guilty to First
Degree Murder should always be sentenced to death?
□ Yes □ No
Please explain:
97. Will you, for whatever reason, automatically vote for the
death penalty for someone convicted of First Degree Murder
without considering the evidence about the Defendant’s
background, propensities, character, criminal records, or the
circumstances of the offense?
□ Yes □ No
If yes, please explain:
....
101. If chosen for this jury, you will not decide whether the
Defendant is guilty of First Degree Murder because he has
taken responsibility and pled guilty.
Would this impact your ability to consider a natural life
sentence in any way?

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

□ Yes □ No
Please explain:
....
103. Do you agree that it would be wrong for a juror to sit
through the entire sentencing proceeding and then, for the
first time, state during deliberations that regardless of the
facts, he or she would never vote for the death penalty, or
alternatively, would always vote for the death penalty?
□ Yes □ No
If No, please explain:

¶58 During voir dire, defense counsel repeatedly posed the
hypothetical to potential jurors without mentioning mitigation (although
the definition of mitigation was projected onto a visible screen). Each time,
the State objected, and the judge, as promised, asked the potential juror
whether the juror would be able to consider mitigation.

¶59 We review de novo whether Montoya was constitutionally
entitled to ask his proposed hypothetical without discussing mitigation. See
State v. Thompson, 252 Ariz. 279, 293 ¶ 45 (2022). Because Montoya argued
below that he should be allowed to ask his hypothetical question without
mentioning mitigation, we review any error for abuse of discretion. See id.

¶60 A criminal defendant has a right to a fair and impartial jury.
Ariz. Const. art. 2, §§ 23, 24; U.S. Const. amends. VI, XIV. Concomitant with
this right “is an adequate voir dire to identify unqualified jurors.” Morgan
v. Illinois, 504 U.S. 719 (1992).

¶61 During voir dire for a capital offense, the court must permit
inquiry into “whether a potential juror would automatically impose the
death penalty upon conviction of the defendant” without giving due
consideration to mitigation. Id. at 721. “Any juror who would impose
death regardless of the [aggravating and mitigating] facts and
circumstances of conviction cannot follow the dictates of law.” Id. at 735.
General questions, like whether a juror will follow the law or be fair and
impartial, are inadequate because potential jurors may in good faith

21
 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

respond affirmatively, despite their unwillingness to consider mitigating
evidence. Id.

¶62 Montoya misrepresents Morgan’s holding in suggesting it
stands for the proposition that capital defendants have a right to question
potential jurors, without mentioning mitigation, on whether they think the
death penalty is appropriate upon conviction. Instead, Morgan guarantees
capital defendants the right to ask questions that illuminate whether
potential jurors will refuse to consider mitigation because they have
“predetermined” to vote for death regardless of the law and facts. Id. at 736;
see also State v. Jones, 197 Ariz. 290, 303 ¶ 27 (2000) (“Morgan recognizes
[that] . . . defendants have a right to know whether a potential juror will
automatically impose the death penalty once guilt is found, regardless of
the law. Thus, defendants are entitled to address this issue during voir
dire.”); Thompson, 252 Ariz. at 294 ¶¶ 48–49 (explaining Morgan permits
inquiry into “which prospective jurors may have predetermined to impose
the death penalty”).

¶63 We have previously rejected the argument that a court abuses
its discretion by requiring a capital defendant “to mention mitigation in a
hypothetical question” and interjecting when the defendant fails to do so.
State v. Patterson, 230 Ariz. 270, 274 ¶ 10 (2012). Here, Montoya’s
hypothetical paired with a mention of mitigation enabled him to discern
whether potential jurors would refuse to consider mitigating evidence. In
fact, by requiring Montoya to discuss mitigation when posing the
hypothetical, the court ensured Montoya’s hypothetical got to the heart of
the Morgan inquiry. See State v. Glassel, 211 Ariz. 33, 46 ¶ 40 (2005)
(explaining that questions that do “not address the issue of whether a juror
would automatically impose the death sentence regardless of the jury
instructions or mitigation evidence” do “not further the Morgan inquiry”).
Additionally, the juror questionnaire contained questions that fully
addressed the Morgan issue. Thus, Montoya had an adequate opportunity
to participate in voir dire in compliance with Morgan. See State v. Johnson, 212 Ariz. 425, 435 ¶ 34 (2006) (holding “the trial court clearly complied with
Morgan requirements” where “the trial court required each potential juror
to fill out a 23-page juror questionnaire that fully addressed Morgan issues”
and the “court also conducted individual voir dire of every prospective juror
whose responses raised impartiality concerns”); State v. Smith, 215 Ariz. 221,
231 ¶ 43 (2007) (holding the court complied with Morgan where “[t]he jurors

22
 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

filled out questionnaires, which contained the Morgan question, along with
other questions about the death penalty, and [the defendant] had ample
opportunity to question potential jurors”).

¶64 Next, Montoya argues the court violated Rule 18.5(f) of the
Arizona Rules of Criminal Procedure by asking rehabilitative questions
during voir dire. Rule 18.5(f) states in relevant part: “The court retains the
discretion to manage voir dire, including to preclude improper, excessive,
or abusive questioning.” The 2022 comment to Rule 18.5(f) provides: “The
court should refrain from attempting to rehabilitate prospective jurors by
asking leading, conclusory questions that encourage prospective jurors to
affirm that they can set aside their opinions and neutrally apply the law.”
However, this comment does not “strip away what the rule expressly
provides by giving courts ‘the discretion to manage voir dire.’” State v.
Fournier, 256 Ariz. 33, 41 ¶ 13 (App. 2023) (quoting Ariz. R. Crim. P. 18.5(f)),
paragraphs 19–21 depublished in part on other grounds by 543 P.3d 1034, 2024
WL 1003709, (Ariz. 2024) (mem. decision).

¶65 Here, the court acted within its discretion in determining that
Montoya’s hypothetical, without a mention of mitigation, was misleading
to potential jurors and by interjecting when defense counsel failed to
mention mitigation. See Johnson, 247 Ariz. at 197 ¶ 111 (characterizing a
“hypothetical that presupposed guilt and an aggravating circumstance,
omitted mitigation, and risked implying that a death sentence was
required” as “misleading”); Patterson, 230 Ariz. at 274 ¶¶ 10–11 (discussing
with approval a court’s determination that a capital defendant posing a
hypothetical without mentioning mitigation “intentionally ‘bait[ed]’
[potential jurors] into suggesting they would not consider mitigation” (first
alteration in original)). A court does not err in properly instructing jurors
on the law and forbidding confusing hypothetical questions. Patterson, 230
Ariz. at 274 ¶ 12. “Because the trial judge is responsible for ensuring that
voir dire is conducted in a manner that results in a fair and impartial jury
for both sides, a judge may interject to make certain a juror
understands . . . the law on a particular subject, and the question being
asked.” Smith, 215 Ariz. at 231 ¶ 45 (internal citation omitted). Thus, the
court complied with Rule 18.5(f).

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

C. Juror Designation

1. Juror 17

¶66 Montoya argues the court’s refusal to strike Juror 17 violated
his right to a fair and impartial jury. On the jury questionnaire, Juror 17
rated his overall opinion of the death penalty at ten, strongly in favor, on a
scale of one to ten. He wrote that he felt the death and natural life penalties
should be imposed based on the severity and circumstances of the crime.
He also indicated that he agreed with the law regarding mitigating
circumstances, he did not believe that people who plead guilty to first
degree murder should always be sentenced to death, and he would not
automatically vote for the death penalty without considering mitigation.

¶67 During voir dire, defense counsel and Juror 17 had the
following exchange:

[DEFENSE COUNSEL]: Okay. Same hypothetical to you as
posed before. Cold-blooded, meant-to-do-it murder of an
innocent victim. You considered all the evidence. You
considered all the mitigation. How do you feel about the
death penalty as the only appropriate penalty of a guilty
murderer of an innocent victim?
[JUROR 17]: Well, based on that scenario, everything was
pretty clear, cut, and dry. So definitely I would lean towards
the death penalty in that case.
[DEFENSE COUNSEL]: A little louder, please.
[THE COURT]: Yeah. I can’t hear you, sir. You need to repeat
that answer.
[JUROR 17]: I said, based on the scenario that you gave, it was
pretty cut and dry with the information you gave, that you
would definitely have to lean towards the death penalty, but
not every case is that cut and dry.
[DEFENSE COUNSEL]: Okay.
[JUROR 17]: So that’s why you have to review the facts and the
circumstances before you could make—

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

[DEFENSE COUNSEL]: Okay. You wrote in your
questionnaire that death penalty should be used based on the
severity of the crime and natural life based on the
circumstances. Can you talk a little bit more about that?
[JUROR 17]: Sure. The circumstances we’re talking about, the
severity of the crime, based on what I read, it was a pretty
severe crime, but based on natural life, as like he indicated
there too, was there circumstances behind it? Was the guy mentally
ill? Was he—you know, a passion? Was it a fit of rage because he
found out his ex-girlfriend was seeing someone else, or he caught
them in the act or whatever it might be? That’s what I refer to there.
[DEFENSE COUNSEL]: Same kind of question to you that I
posed to the other jurors. What if those things aren’t present?
[JUROR 17]: Good question.
[DEFENSE COUNSEL]: Or what if it takes a different form
than—than those—those few details?
[JUROR 17]: I would have to dissect the details first before I could
honestly give you an answer to that.
[DEFENSE COUNSEL]: Correct me if I’m wrong, but it kind
of sounds to me like—like that the severity of the crime
weighs a little bit more heavily to you than the circumstances.
[JUROR 17]: Yes.
[DEFENSE COUNSEL]: Okay. So that—that’s going to be
more important to you?
[JUROR 17]: No, not based—until I hear everything.
[DEFENSE COUNSEL]: Okay.
[JUROR 17]: I mean, there might be a reason for the severity.
There might not be a reason for the severity, but you asked
me a specific question—
[DEFENSE COUNSEL]: I did.
[JUROR 17]: —about the severity, and I gave you an honest
answer.

(Emphasis added.)

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

¶68 On the juror questionnaire, Juror 17 wrote that the State’s
decision to seek the death penalty should not be based on whether a
defendant accepts responsibility for a crime. He also wrote that he had
strong feelings about people who abuse hard drugs, specifically the actions
they take to maintain their habits. He wrote that people who abuse
over-the-counter medications need to seek help and that he thought
marijuana should be legalized.

¶69 During voir dire, defense counsel and Juror 17 also had the
following exchange:

[DEFENSE COUNSEL]: I appreciate that. Okay. You wrote
that you strongly favor the death penalty, and that, even if the
person accepts responsibility, it should be no different
whether they accept responsibility or are tried. Can you talk
about that a little bit?
....
[JUROR 17]: I didn’t say it was—it should be automatic.
[DEFENSE COUNSEL]: I’m not—I’m not suggesting that you
said it was automatic, but you wrote that you favor the death
penalty, and that, even if the person accepts responsibility, it
should be no different that they accept responsibility or if
they’re—or if they are tried and found guilty by a jury.
[JUROR 17]: When you say it that way, yes. I mean, I favor the
death penalty. If it’s warranted, it should be applied, but
circumstances dictate whether it should be applied or not. That’s
what the answer is.
[DEFENSE COUNSEL]: So it doesn’t matter to you that he
accepted responsibility?
[JUROR 17]: No. It should.
....
[DEFENSE COUNSEL]: The question that you answered in
the—in the questionnaire was about the fact that the
defendant accepted responsibility. How do you feel about
that?

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

[JUROR 17]: Well, I mean, if he did accept responsibility, then
all of the circumstances or information leading up to it, yeah,
you would definitely—what’s the word I want to use—not
favor but, you know, lean towards he accepted it. Based on
what I’ve read, it was a pretty heinous crime, but I don’t know all
the answers or all the circumstances around it.
[DEFENSE COUNSEL]: Okay. But does his acceptance of
responsibility, what does that mean to you?
[JUROR 17]: Acceptance of responsibility is that he admitted
he’s wrong, but in the case that he mentioned too, just because
he admitted responsibility, I mean, like does he have, like he
said, remorse? I mean, is there other circumstances? He just
wanted to be done with it? Is there something there where,
you know—
[DEFENSE COUNSEL]: Uh-huh. Okay. You didn’t check
either of the boxes, but there was a question about people
who—who use drugs in the questionnaire. And you wrote,
those who abuse hard drugs—you put meth, et cetera, in
parentheses—and what they could do to keep the habit going.
Can you talk a little bit about that?
[JUROR 17]: What was the question?
[DEFENSE COUNSEL]: You were asked a question about
how do you feel about people who abuse drugs?
[JUROR 17]: Well, the people that abuse drugs, from what I—
[DEFENSE COUNSEL]: If you need to refer to the
questionnaire, that’s okay.
[JUROR 17]: No. That’s fine. I can—people that use hard
drugs, like meth and everything like that, they do a lot of
hideous things in order to keep that habit going, whether to
rob a store, whether it’s to rob someone and kill them, you
know, and, at the same time, they’re doing that, I mean, you
have to take that into a factor, too, is his background, was how
many times has he been incarcerated before, you know.
[DEFENSE COUNSEL]: So you’re kind of talking about the
vicious cycle that goes into that?

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

[JUROR 17]: Correct, yes.

(Emphasis added.)

¶70 Defense counsel moved to strike Juror 17 for cause, arguing
that Juror 17 presumed death was the appropriate sentence, would weigh
the severity of the crime more heavily than mitigation, and would treat
substance abuse as aggravation. The court overruled defense counsel’s
motion. Juror 17 deliberated on the jury that returned Montoya’s death
verdict.

¶71 Montoya argues that we should not defer to the court’s
discretion in deciding motions to strike because Arizona no longer permits
peremptory strikes. He similarly argues that, for the same reason, if the
decision of whether to strike Juror 17 was a “close call,” we should hold the
court abused its discretion. We reject these arguments. Arizona’s
elimination of peremptory strikes did not remove trial courts from being in
the best position to assess potential jurors’ fairness and impartiality, and it
did not alter the abuse-of-discretion standard, which requires affirmance
unless the court’s action was “clearly untenable, legally incorrect, or
amount[ed] to a denial of justice.” State v. Chapple, 135 Ariz. 281, 297 n.18
(1983), superseded on other grounds by A.R.S. § 13–756.

¶72 Thus, we review the court’s refusal to dismiss Juror 17 for
cause for abuse of discretion. See Glassel, 211 Ariz. at 45 ¶ 36. Because
defense counsel objected to Juror 17, we review any error for harmless error.
See Henderson, 210 Ariz. at 567 ¶ 18.

¶73 Before beginning our analysis, we pause to clarify the role of
the court and counsel during voir dire. Montoya argues that the court had
a duty to sua sponte question Juror 17 further, even though Montoya did
not request additional voir dire of Juror 17. He asserts this duty spawned
when Arizona eliminated peremptory strikes. But “[t]he party challenging
a juror for cause”—not the court—“has the burden to establish by a
preponderance of the evidence that the juror cannot render a fair and
impartial verdict.” Ariz. R. Crim. P. 18.5(h). The elimination of peremptory
strikes did not shift the burden of proof away from the moving party to the
court. The court conducts, controls, and manages voir dire, Ariz. R. Crim.

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 STATE V. CHRISTOPHER MICHAEL MONTOYA
Opinion of the Court

P. 18.5(f), but it is not required to participate in voir dire in the manner
Montoya suggests.

¶74 “The court, on motion or on its own, must excuse a
prospective juror or jurors from service in the case if there is a reasonable
ground to believe that the juror or jurors cannot render a fair and impartial
verdict.” Ariz. R. Crim. P. 18.4(b). “In making its determination, the court
must consider the totality of a prospective juror’s conduct and answers
given during voir dire . . . .” Ariz. R. Crim. P. 18.5(h). A criminal defendant
has a right to a fair and impartial jury. Ariz. Const. art. 2, §§ 23, 24; U.S.
Const. amends. XI, XIV. A juror who would impose death regardless of the
aggravating and mitigating evidence is not impartial. Morgan, 504 U.S.
at 728–29.

¶75 Juror 17’s strong opinion in favor of the death penalty did not
preclude him from deliberating on the jury. “Simply because a juror favors
the death penalty does not . . . necessarily preclude the juror from serving
on a jury; if the juror is ‘willing to put aside his opinions and base his
decisions solely upon the evidence, he may serve.’” State v. Velazquez, 216
Ariz. 300, 307 ¶ 19 (2007) (quoting State v. Martinez, 196 Ariz. 451, 459 ¶ 28
(2000)); see also Johnson, 247 Ariz. at 197 ¶ 109 (“[A] prospective juror is not
precluded from serving on the jury simply because he favors the death
penalty.”). In fact, excusing a juror because of his “views on capital
punishment” is structural error that requires reversal, State v. Ring, 204
Ariz. 534, 552 ¶ 46 (2003), unless the juror is “irrevocably committed” to
vote for or against the death penalty “regardless of the facts and
circumstances,” Davis v. Georgia, 429 U.S. 122, 123 (1976) (internal quotation
mark omitted) (quoting Witherspoon v. Illinois, 391 U.S. 510, 522 n.21 (1968));
see also Morgan, 504 U.S. at 728–29.

¶76 Additionally, we have previously rejected the argument that
a potential juror’s response that the death penalty is the appropriate penalty
under a hypothetical means the potential juror cannot be fair or impartial
as explained in Morgan. See Johnson, 247 Ariz. at 196–97 ¶¶ 107–11. In
Johnson, potential jurors stated during voir dire that “they could not
imagine a situation where the totality of someone’s character could warrant
mercy” when defense counsel posed a hypothetical of a defendant who was
“guilty of intentional premeditated killing of an innocent victim.” Id.
¶¶ 107–08. We held the court did not abuse its discretion in denying the

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Opinion of the Court

defendant’s motion to strike those potential jurors because they “all stated
they would keep an open mind during the trial, could consider mitigation
evidence, and would not automatically vote for the death penalty.” Id.
at 197 ¶¶ 110–11.

¶77 Here, like in Johnson, Juror 17 repeatedly and consistently
indicated on the juror questionnaire and during voir dire that he would not
vote to impose the death penalty automatically upon conviction, that he
would consider mitigating evidence, and that he felt whether the death
penalty was appropriate depended on the facts and circumstances of each
individual case. Indeed, although Juror 17 indicated he would “lean
towards” the death penalty under Montoya’s hypothetical, he immediately
qualified his answer by stating “not every case is that cut and dry” and
explaining he would need to examine the facts and circumstances.

¶78 Moreover, Juror 17’s responses regarding his feelings
surrounding acceptance of responsibility and drug abuse did not indicate
that he would view Montoya’s mitigating evidence as aggravation. On the
juror questionnaire, Juror 17 wrote that acceptance of responsibility should
not affect whether the State seeks the death penalty—not whether a jury
imposes the death penalty. During voir dire, Juror 17 stated the death
penalty should not be automatic when the defendant accepts responsibility,
and he stressed that the particular facts and circumstances surrounding the
acceptance of responsibility would be important to him. Although Juror 17
indicated negative feelings towards individuals who abuse hard drugs and
commit crimes to maintain their drug habits, he also stated that he would
consider the factors that led a defendant to abuse drugs and would not push
his feelings onto other jurors. On the juror questionnaire, Juror 17 wrote
that people who abuse over-the-counter medication should seek help and
that marijuana should be legalized.

¶79 Ultimately, the “court was in the best position to observe the
prospective jurors and determine whether they were impaired.” Johnson,
247 Ariz. at 197 ¶ 111. Juror 17’s repeated affirmations that he would
consider all the facts and circumstances and follow the law regarding
mitigation demonstrate that Juror 17 was not substantially impaired or
unable to perform his duty as a juror. Thus, the court did not abuse its
discretion in denying Montoya’s motion to strike Juror 17.

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2. Juror 6

¶80 Montoya argues the court abused its discretion by
designating Juror 6 as an alternate because there was no reasonable ground
to believe she could not render a fair and impartial verdict. Alternatively,
Montoya argues the court’s designation of Juror 6 as an alternate was
structural error because the designation amounted to a for-cause strike.

¶81 The judge and prosecutor observed Juror 6 repeatedly falling
asleep during the presentation of evidence. The judge brought Juror 6 into
the courtroom for a colloquy about her difficulty staying awake. Juror 6
apologized for her apparent lack of attention but stated she did not feel like
she was falling asleep. Juror 6 also explained she took medication, but that
she did not think it made her drowsy during the day.

¶82 Defense counsel researched Juror 6’s medication and
informed the court that one of the side effects was rapid blinking. Defense
counsel asked the judge if he wanted to question Juror 6 further about her
medication and eye blinking, but he declined.

¶83 After the parties filed written pleadings and made an oral
record on Juror 6, the court designated Juror 6 as an alternate. The judge
recounted that he had observed Juror 6 sleeping during a “significant” and
“important” part of the State’s presentation, and that at other times it had
appeared like she was having a difficult time staying awake. Additionally,
the judge explained his ruling was based solely on his position that neither
side could obtain a fair and impartial verdict if a deliberating juror had slept
through portions of evidence.

¶84 We review a court’s investigation of juror misconduct and
juror dismissal for abuse of discretion. State v. Davolt, 207 Ariz. 191, 207
¶ 56 (2004); State v. Lavers, 168 Ariz. 376, 390 (1991). We “will not set aside
the trial court’s findings of fact unless they are clearly erroneous.” Schade
v. Diethrich, 158 Ariz. 1, 7 (1988). Montoya argues we should not defer to
the court’s findings of fact because COVID-19 protocols hindered the
judge’s ability to observe Juror 6. However, the fact that Juror 6 wore a
mask covering her nose and mouth did not affect the judge’s ability to see
Juror 6 closing her eyes and jerking her body. Despite COVID-19 protocols,
we still defer to the judge’s findings of fact because he remained in the best

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position to observe Juror 6. Because Montoya objected to the court’s
designation of Juror 6 as an alternate, we review any error for harmless
error. Henderson, 210 Ariz. at 567 ¶ 18.

¶85 Rule 18.4(b) provides: “The court, on motion or on its own,
must excuse a prospective juror or jurors from service in the case if there is
a reasonable ground to believe that the juror or jurors cannot render a fair
and impartial verdict.” A reasonable ground for dismissal under Rule 18.4
may arise during trial. See State v. Trostle, 191 Ariz. 4, 12–13 (1997).

¶86 We previously held that a court’s refusal to dismiss a juror
who fell “asleep for a short time” where “no evidence show[ed] that the
sleeping juror ‘missed large portions of the trial or that the portions missed
were particularly critical’” is not reversible error. State v. Prince, 226 Ariz.
516, 533 ¶ 57 (2011) (quoting United States v. Freitag, 230 F.3d 1019, 1023 (7th
Cir. 2000)). But a court does not necessarily abuse its discretion by excusing
a sleeping juror. This is especially true where, as here, the juror was
observed by the judge sleeping multiple times during the presentation of
“significant” and “important” evidence. See Freitag, 230 F.3d at 1023 (“If
sleep by a juror makes it impossible for that juror to perform his or her
duties or would otherwise deny the defendant a fair trial, the sleeping juror
should be removed from the jury.”).

¶87 Additionally, Juror 6’s assurances that she was not sleeping
did not override the judge’s actual observations of her sleeping. “The
conduct of the juror in open court was a matter of which the trial court had
judicial knowledge and could take judicial notice.” Cota, 229 Ariz. at 151
¶ 74 (quoting United States v. Curry, 471 F.2d 419, 422 (5th Cir. 1973)); see
also Brooks v. Zahn, 170 Ariz. 545, 550 (App. 1991) (noting appellate courts
“defer to the trial court’s resolution of conflicting evidence with respect to
alleged juror misconduct”). Here, the judge’s determination that Juror 6
could not be a fair or impartial juror due to her sleeping is supported by the
record. Thus, the court had reasonable grounds to excuse Juror 6.

¶88 But instead of excusing Juror 6, the court designated her as an
alternate. This violated Rule 18.5(j)(2), which provides: “Just before the jury
retires to begin deliberations, the clerk or court official must determine the
alternate juror or jurors by lot or stipulation.” (Emphasis added.)
Designating Juror 6 as the alternate was neither by lot nor by stipulation.

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However, an errant “designation of alternates by the trial judge does not
require reversal in the absence of resulting prejudice.” Cota, 229 Ariz. at 147
¶ 44; see also Ariz. Const. art. 6, § 27 (“No cause shall be reversed for
technical error in pleadings or proceedings when upon the whole case it
shall appear that substantial justice has been done.”); State v. Blackhoop, 162
Ariz. 121, 122 (1989) (“Technical errors in jury selection do not require a
new trial.”); State v. Arnett, 119 Ariz. 38, 50 (1978) (“A defendant in a
criminal case is entitled to a fair and impartial jury for the trial of his case,
but he is not entitled to be tried by any particular jury; therefore, unless the
record affirmatively shows that such a fair and impartial jury was not
secured, the conviction must be affirmed.”). Here, the court’s technical
violation of Rule 18.5 does not require reversal because the court
unquestionably had the authority to excuse Juror 6. The court’s decision to
designate her as an alternate instead of excusing her altogether could not
have harmed Montoya because Juror 6 did not serve on the jury during
deliberations. Montoya has neither argued nor shown that he was deprived
of a fair and impartial jury. In sum, the error was harmless.

¶89 Next, Montoya argues that the court abused its discretion by
refusing his request to voir dire Juror 6 further about whether she suffered
from rapid eye blinking as a side effect from her medication. “When a trial
court becomes aware of possible juror misconduct, it should ‘conduct
whatever investigation it deems warranted.’” Cota, 229 Ariz. at 150 ¶ 74
(quoting State v. Cook, 170 Ariz. 40, 55 (1991)). We have previously rejected
the argument that a judge abuses his discretion by declining to voir dire a
sleeping juror and instead relying on his personal observations. Id.
at 150–51 ¶¶ 73–74. Here, it is not clear that additional voir dire would have
been of any use. If additional voir dire revealed that Juror 6 did in fact
experience rapid eye blinking as a side effect from her medication, the
question of whether Juror 6 was sleeping or exhibiting eye-blinking
symptoms would have remained unanswered. In any event, the judge
relied on both a prior colloquy with Juror 6 as well as his personal
observations in designating Juror 6 as an alternate. This satisfied the
investigation requirement for juror misconduct. Thus, the court did not
abuse its discretion by refusing Montoya’s request to voir dire Juror 6
further.

¶90 Finally, Montoya argues that the court’s designation of Juror
6 as an alternate was effectively a for-cause strike based on her negative

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view towards the death penalty and therefore constituted structural error.
See Ring, 204 Ariz. at 552 ¶ 46; State v. Anderson, 197 Ariz. 314, 324 ¶ 23 &
n.5 (2000). Excusing a juror because of her “views on capital punishment”
is structural error that requires reversal. Ring, 204 Ariz. at 552 ¶ 46.
Montoya’s argument, though, is belied by the record. The court repeatedly
denied the State’s requests to strike Juror 6 for cause during voir dire.
Although the court acknowledged the State did not want Juror 6 to
deliberate because of her negative views about the death penalty, the court
made clear that its decision to designate Juror 6 as an alternate had nothing
to do with her views on capital punishment. The court’s sole professed
reason for designating Juror 6 as an alternate was because she slept through
the presentation of critical evidence, and nothing in the record suggests
otherwise. As explained above, there were reasonable grounds to excuse
Juror 6. Thus, the court did not deprive Montoya of his constitutional rights
by designating Juror 6 as an alternate.

D. Admission of Photographs

¶91 Montoya argues the court’s admission of certain autopsy
photographs deprived him of his right to a fair trial because the
photographs were irrelevant and unduly prejudicial. The photographs
show A.R.’s handcuffed wrists, legs bound with a bungee cord and belt,
and injured head. The State published the photographs to the jury in
connection with testimony from a forensic anthropologist. The forensic
anthropologist referenced the photographs to explain A.R.’s state of
decomposition; how tightly A.R. was bound by the handcuffs, bungee cord,
and belt; A.R.’s injuries related to the bindings; the possibility that A.R.’s
shirt sleeve was cut; and the extent of A.R.’s head injuries.

¶92 We generally review the admission of photographs for an
abuse of discretion. See State v. Rushing, 243 Ariz. 212, 219 ¶ 24 (2017).
“Whether the trial court abused its discretion in admitting a photograph
turns on (1) the photograph’s relevance, (2) its tendency to inflame the jury,
and (3) its probative value compared to its potential to cause unfair
prejudice.” Cota, 229 Ariz. at 147 ¶ 46. Before the State moved to admit the
autopsy photographs, Montoya filed a general objection to irrelevant,
unfairly prejudicial, or duplicative photographs. After the State informed
Montoya of the photographs the State intended to use, Montoya objected to
nine specific photographs, none of which were the ones he now challenges.

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Opinion of the Court

Because Montoya did not object to the admission of the photographs, we
review for fundamental error. Moody, 208 Ariz. at 455 ¶ 120; see also State v.
Lopez, 217 Ariz. 433, 434 ¶ 4 (App. 2008) (“[A] general objection is
insufficient to preserve an issue for appeal.”).

¶93 For his argument, Montoya relies on Chapple, where we held
a court abused its discretion by admitting photographs during the guilt
phase of a trial that depicted the victim’s charred body because the
photographs’ probative value was outweighed by the risk of unfair
prejudice. 135 Ariz. at 289–90. But Chapple does not definitively decide the
issue before us because, here, the photographs were admitted during the
penalty phase of Montoya’s trial. “The Rules of Evidence do not apply to
the admission of evidence during the penalty phase of a capital trial.” State
v. Burns, 237 Ariz. 1, 28 ¶ 130 (2015). Instead, § 13-752(G) governs, which
provides:

At the penalty phase, the defendant and the state may present
any evidence that is relevant to the determination of whether
there is mitigation that is sufficiently substantial to call for
leniency. In order for the trier of fact to make this
determination, regardless of whether the defendant presents
evidence of mitigation, the state may present any evidence
that demonstrates that the defendant should not be shown
leniency including any evidence regarding the defendant’s
character, propensities, criminal record or other acts.

see also § 13-751(G) (“The trier of fact shall consider as mitigating
circumstances any factors proffered by the defendant or the state that are
relevant in determining whether to impose a sentence less than death,
including any aspect of the defendant’s character, propensities or record
and any of the circumstances of the offense . . . .”). Of course, the court
should not admit evidence that is irrelevant or unduly prejudicial during
the penalty phase. Burns, 237 Ariz. at 29 ¶ 130.

¶94 Here, the photographs were properly admitted under
§§ 13-751 and -752 because the circumstances of A.R.’s death were relevant
to whether Montoya should be shown leniency. “[T]he fact and cause of
death are always relevant in a murder prosecution,” even if the defendant
does not contest these elements. Goudeau, 239 Ariz. at 459 ¶ 154 (quoting

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Chapple, 135 Ariz. at 288). The photographs showed the “location of [A.R.’s]
mortal wounds,” showed “how the crime was committed,” and aided “the
jury in understanding the testimony of [the medical examiner].” See State
v. Mohr, 106 Ariz. 402, 403 (1970).

¶95 Additionally, the photos were not so unduly prejudicial as to
deny Montoya the right to a fair trial. “There is nothing sanitary about
murder,” and the court may properly admit gruesome photographs at the
penalty phase. See State v. Rienhardt, 190 Ariz. 579, 584 (1997). “[T]he state
cannot be compelled to try its case in a sterile setting.” Chapple, 135 Ariz.
at 289–90. After reviewing all the autopsy photographs, it is clear to us that
the State was judicious in selecting the photographs it sought to admit into
evidence. The photographs were relatively much less gruesome than others
available to the State because they did not show A.R’s face or naked body.
Moreover, the photographs were not duplicative of one another, and they
were not more inflammatory than other photographs we have previously
found admissible. See, e.g., Burns, 237 Ariz. at 19 ¶¶ 59–62 (holding court
did not abuse its discretion by admitting photographs of victim’s body as it
was discovered in the desert after animals severed the victim’s head and
photographs of victim’s skull); Goudeau, 239 Ariz. at 458–60 ¶¶ 150–58
(holding court did not abuse its discretion by admitting photograph of
victim with a metal trajectory rod depicting bullet’s travel through victim’s
left hand, neck, and shoulder, a second visible gunshot wound, and visible
blood); Cota, 229 Ariz. at 147–48 ¶¶ 45–47 (holding court did not abuse its
discretion by admitting photographs of victims as they were received by
the medical examiner’s office and during their autopsies). Thus, we hold
that the court did not abuse its discretion by admitting the photographs.

E. Waiver Of The Presentation Of Mitigation Evidence

¶96 Montoya argues that the court’s acceptance of his partial
waiver of the presentation of mitigation evidence violated his constitutional
rights. We review questions of constitutional interpretation de novo. Smith,
215 Ariz. at 228 ¶ 20.

1. Eighth Amendment challenge

¶97 Montoya argues the court’s acceptance of his waiver of the
presentation of most mitigation evidence violated his Eighth Amendment

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Opinion of the Court

right to an individualized sentence. “[A] State cannot preclude the
sentencer from considering ‘any relevant mitigating evidence’ that the
defendant proffers in support of a sentence less than death.” Payne, 501 U.S.
at 822 (quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). The decision
to impose the death penalty must be an “individualized determination on the
basis of the character of the individual and the circumstances of the crime.”
Zant, 462 U.S. at 879–78. The requirement for an individualized
determination “is met when the jury can consider relevant mitigating
evidence of the character and record of the defendant and the circumstances
of the crime.” Tuilaepa v. California, 512 U.S. 967, 972 (1994); see also Blystone
v. Pennsylvania, 494 U.S. 299, 307 (1990) (“The requirement of individualized
sentencing in capital cases is satisfied by allowing the jury to consider all
relevant mitigating evidence.”).

¶98 Montoya correctly points out that the Supreme Court has not
expressly held whether a defendant may waive the presentation of
mitigation evidence under the Eighth Amendment. However, “the
Supreme Court has suggested that there is no constitutional violation when
a defendant chooses to put on no mitigating evidence.” Roscoe, 184 Ariz.
at 499.

¶99 For example, in Blystone, the Supreme Court considered the
constitutionality of Pennsylvania’s death penalty statute, which mandated
a verdict of death if the jury found at least one aggravator and no mitigators.
494 U.S. at 301. The defendant did not present any mitigating evidence
during the penalty phase of his trial. Id. at 306 n.4. The defendant argued
the mandatory nature of the statute unconstitutionally prevented the jury
from returning an individualized sentence determination. Id. at 306. The
Court rejected this argument, explaining:

The requirement of individualized sentencing in capital cases
is satisfied by allowing the jury to consider all relevant
mitigating evidence. In petitioner’s case the jury was
specifically instructed to consider, as mitigating evidence, any
“matter concerning the character or record of the defendant,
or the circumstances of his offense.” This was sufficient to
satisfy the dictates of the Eighth Amendment.

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Id. at 307–08 (internal citation omitted); see also Schriro v. Landrigan, 550 U.S.
465, 479 (2007) (stating that the Supreme Court has “never imposed an
‘informed and knowing’ requirement upon a defendant’s decision not to
introduce evidence” and that the Court has “never required a specific
colloquy to ensure that a defendant knowingly and intelligently refused to
present mitigating evidence”); Burger v. Kemp, 483 U.S. 776, 794–95 (1987)
(holding defense counsel was not “constitutionally compelled” to
investigate or present mitigating evidence where he had reasonable reasons
not to do so (internal quotation mark omitted) (quoting United States v.
Cronic, 466 U.S. 648, 665 n.38 (1984))).

¶100 Despite the lack of clarity in Supreme Court jurisprudence on
the issue, we have repeatedly and consistently held that competent
defendants may constitutionally waive the presentation of mitigating
evidence, so long as they do so knowingly, voluntarily, and intelligently.
See, e.g., Riley, 248 Ariz. at 200 ¶ 195. Contrary to Montoya’s assertions,
such waiver does not prevent the jury from considering mitigating evidence
as required by the Eighth Amendment. “[T]he Eighth Amendment requires
only that a jury be allowed to consider mitigating evidence; it does not
require a jury to be presented with that evidence over a defendant’s
objections.” Id. ¶ 198; see also Roscoe, 184 Ariz. at 499 (“The hallmark of the
Eighth Amendment is that the sentencer be allowed to consider any
mitigation that the defendant proffers.”). It does not require that a jury be
presented with all possibly mitigating evidence in existence. See Riley, 248
Ariz. at 200 ¶ 195; Roscoe, 184 Ariz. at 499–500; cf. Kemp, 483 U.S. at 794–95.
In practice, such a requirement would be unruly and nearly impossible to
comply with, even with a cooperative defendant. We decline to overrule
our precedent holding a defendant may waive the presentation of
mitigation because Montoya has failed to demonstrate that the cases are
“clearly erroneous or manifestly wrong.” See Laurence v. Salt River Project
Agric. Improvement & Power Dist., 255 Ariz. 95, 100 ¶ 17 (2023) (quoting State
v. Agueda, 253 Ariz. 388, 391–92 ¶ 20 (2022)); see also State v. Johnson, 401
S.W.3d 1, 15 & n.8 (Tenn. 2013) (noting “a greater number of jurisdictions”
have held the Eighth Amendment does not prevent a defendant from
waiving the presentation of mitigation evidence).

¶101 Here, Montoya’s mitigation evidence waiver was only partial
because he submitted the records of his guilty plea and mitigation waiver
hearings as evidence of his acceptance of responsibility. The court found

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Opinion of the Court

Montoya’s waiver to be knowing, voluntary, and intelligent after multiple
colloquies and a competency evaluation, and Montoya does not dispute this
finding. It is clear from the record that Montoya’s waiver was sufficient.
See Riley, 248 Ariz. at 201 ¶ 201. Additionally, the court repeatedly
instructed the jury on the definition of mitigation, to consider all mitigating
evidence apparent from the record, and that the jury could find mitigation
even though Montoya did not present mitigating evidence. Thus, the court
did not violate Montoya’s Eighth Amendment rights by permitting him to
waive the presentation of some mitigation evidence.

2. Sixth Amendment challenge

¶102 Montoya argues the court’s acceptance of his waiver of the
presentation of most mitigation evidence deprived him of his Sixth
Amendment right to the assistance of counsel. The Sixth Amendment
guarantees criminal defendants the right to self-representation and to
assistance of counsel. U.S. Const. amend. VI. Generally, a represented
defendant’s attorney oversees trial management, but some decisions, like
“whether to plead guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal,” are reserved for the defendant. McCoy v.
Louisiana, 584 U.S. 414, 422 (2018).

¶103 For Montoya’s argument to succeed, we must accept the
proposition that a defendant relinquishes any influence over all decisions
except the few that a defendant exercises exclusive control over—but the
opposite is true. “The choice [between self-representation and the
assistance of counsel] is not all or nothing: To gain assistance, a defendant
need not surrender control entirely to counsel.” Id. at 421. And an
attorney’s actions “may be determined or substantially influenced by the
defendant’s own statements or actions.” See Strickland v. Washington, 466
U.S. 668, 691 (1984); see also Weaver v. Massachusetts, 582 U.S. 286, 295 (2017)
(noting a defendant’s right to conduct his own defense is “based on the
fundamental legal principle that a defendant must be allowed to make his
own choices about the proper way to protect his own liberty”).

¶104 As we have previously noted, the Supreme Court has
discussed with approval defendants’ waiver of the presentation of
mitigation over their attorneys’ objections. See Blystone, 494 U.S. at 306–08
& n.4; Landrigan, 550 U.S. at 476, 481. Moreover, we have previously

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rejected the argument that “the Sixth Amendment requires the defense to
present mitigation despite the defendant’s waiver.” State v. Hausner, 230
Ariz. 60, 85 ¶ 119 (2012); see also Roscoe, 184 Ariz. at 499 (holding a
defendant’s decision to not present mitigating evidence is a “personal
decision . . . within his discretion” and does not result “in ineffective
assistance or an invalid waiver of counsel”); State v. Kayer, 194 Ariz. 423, 437
¶ 46 (1999) (holding a defendant is allowed “not to cooperate with a
mitigation specialist and thereby potentially limit the mitigation evidence
that is offered”). In fact, “requiring the defense to present mitigating
evidence over the defendant’s opposition arguably would conflict with the
defendant’s Sixth Amendment right to self-representation.” Hausner, 230
Ariz. at 85 ¶ 119; see also Kayer, 194 Ariz. at 436–37 ¶ 45 (“An anomaly
would exist were we to accept defendant’s argument that counsel
exclusively controls the presentation of all mitigation evidence: a defendant
could waive counsel at sentencing and thereby have exclusive control over
the presentation of all mitigation evidence; yet if a defendant accepts
counsel, he would have no input on what mitigating factors to offer.”).

¶105 Montoya also argues that permitting a represented defendant
to waive the presentation of mitigation evidence creates an appearance of
unfairness that outweighs the defendant’s right to control his own defense.
For this proposition, he relies on Indiana v. Edwards, 554 U.S. 164, 174–78
(2008), where the Supreme Court held a state may require an incompetent
defendant to be represented by counsel over his objection for many reasons,
including that holding otherwise would undermine the appearance of
fairness in judicial proceedings. Edwards is inapposite to a competent
defendant’s right to waive the presentation of mitigation. As we have
discussed, a competent defendant may waive many rights, including the
right to present mitigation evidence. See Blystone, 494 U.S. at 306–08 & n.4;
Landrigan, 550 U.S. at 476, 481; Hausner, 230 Ariz. at 85 ¶ 119; Roscoe, 184
Ariz. at 499; Kayer, 194 Ariz. at 437 ¶ 46. Any appearance of unfairness that
arises from such waiver by a competent defendant is so minimal that it does
not justify categorically denying defendants their constitutional right to do
so.

¶106 Montoya asks us to overrule our precedent, but we decline to
do so because, again, he has failed to demonstrate that the cases are “clearly
erroneous or manifestly wrong.” See Laurence, 255 Ariz. at 100 ¶ 17
(quoting Agueda, 253 Ariz. at 391–92 ¶ 20); see also State v. Arguelles, 63 P.3d

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Opinion of the Court

731, 753 ¶ 82 (Utah 2003) (noting the “vast majority of courts” have
concluded “that a defendant’s Sixth Amendment right to represent himself
and control the course of the proceedings carries with it the right to choose
how much—if any—mitigating evidence is offered”).

¶107 Here, Montoya knowingly, intelligently, and voluntarily
waived the presentation of mitigation evidence, except for evidence that
supported a finding of his acceptance of responsibility. The Sixth
Amendment did not require his attorneys to admit mitigation evidence
over his objection. His attorneys cross-examined witnesses and asked the
jury to find numerous mitigating circumstances in closing argument. Thus,
the court did not deprive Montoya of his Sixth Amendment right to the
assistance of counsel by accepting his partial waiver of the presentation of
mitigation.

F. Scope Of Victim Impact Statements

¶108 Montoya argues the victim impact statements offered
impermissible opinions and characterizations about Montoya and the crime
in violation of the Eighth Amendment. Because Montoya did not object to
any portion of the victim impact statements, we review their admission for
fundamental error. See Henderson, 210 Ariz. at 567 ¶ 19.

¶109 Victims have the right to be heard at sentencing proceedings.
Ariz. Const. art. 2, § 2.1(A)(4). The Eighth Amendment does not prohibit
the admission of relevant victim impact statements “relating to the victim
and the impact of the victim’s death on the victim’s family” during the
sentencing phase of a capital trial. Payne, 501 U.S. at 827, 830 n.2. However,
“the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate sentence
violates the Eighth Amendment.” Id.; see also Booth v. Maryland, 482 U.S.
496, 508–09 (1987), overruled in part by Payne, 501 U.S. at 830 n.2.
Additionally, the Fourteenth Amendment prohibits the introduction of a
victim impact statement “that is so unduly prejudicial that it renders the
trial fundamentally unfair.” Payne, 501 U.S. at 825.

¶110 At the outset, we note that, despite the State’s offer to make
the victim impact statements available, the judge declined to review the
statements before they were presented to the jury. We have cautioned

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Opinion of the Court

prosecutors and courts to “exercise restraint when presenting this type of
victim impact evidence.” Burns, 237 Ariz. at 30 ¶ 141. We do so again
today. We emphasize that “a trial judge must take an active role in
reviewing victim impact evidence to screen for potential unfair prejudice.”
Id. ¶ 139. By taking on this active role, judges contribute to the fair and
efficient administration of justice in the Arizona court system.

¶111 Here, the court did not abuse its discretion in admitting most
portions of the victim impact statements about which Montoya complains.
The victim’s statements that Montoya seemed like “the only person
remembered” and focused on in court and that the victims refused to say
Montoya’s name or acknowledge him after he took A.R.’s dignity, did not
offer characterizations or opinions about Montoya. Instead, these
statements permissibly explained the grief, confusion, and anger A.R.’s
family experienced after her death.

¶112 Additionally, most of the victim impact statements’
references to the crime itself were to undisputed facts, and therefore not
impermissible characterizations or opinions about the crime. It was not
disputed that A.R.’s body was initially unable to be identified due to her
decomposition, that Montoya threatened A.R. with a hammer and killed
one of her dogs around the time of her death, and that her belongings went
missing (due to Montoya stealing them) after her death. See State v. Bush, 244 Ariz. 575, 593–94 ¶¶ 78, 82 (2018) (finding a victim impact statement
describing how the victim “was shot at close range, like she was worth
nothing” and “[c]lose enough to almost blow her face completely off”
permissible (alteration in original) (internal quotation mark omitted));
Burns, 237 Ariz. at 30 ¶ 141 (finding a victim impact statement speculating
how the “victim may have felt during the crime” permissible). These
references spoke to the victims’ understanding of the crime and provided a
foundation for the impact it had on them.

¶113 However, the court abused its discretion in admitting the
portions of the victim impact statements that characterized Montoya as “the
worst kind of person” and a “bad guy” and the crime itself as “[s]imply
gruesome” and “brutal.” Unlike previous factual statements that we have
approved, see State v. Rose, 231 Ariz. 500, 513 ¶ 57 (2013) (finding victim
impact statement referring to defendant as a “cop killer” permissible); Cota,
229 Ariz. at 150 ¶¶ 71–72 (finding victim impact statement referring to

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Opinion of the Court

victim’s body as “mutilated” and “tortured” permissible), these descriptors
amounted to impermissible opinions. Although these parts of the victim
impact statements were impermissible under the Eighth Amendment, we
find no fundamental error because Montoya cannot demonstrate that he
was prejudiced by the statements in light of the strong aggravation
evidence and limited mitigation offered by Montoya, the fleeting nature of
the impermissible statements, and the court’s jury instruction to only
consider the victim impact statements insofar as they rebutted mitigation.
See Rose, 231 Ariz. at 513 ¶ 57.

G. Section 13-751(F)(6) Aggravator Jury Instruction

¶114 Montoya argues the jury instruction on the (F)(6) aggravator
was incomplete because it provided definitions for especially cruel and
especially heinous but did not explicitly state that the aggravator could be
counted only once. He argues the allegedly incomplete instruction
permitted the jury to impermissibly count the aggravator twice in violation
of his rights to due process and to be free from arbitrary and capricious
punishment. The jury instructions stated, in relevant part:

[T]he Defendant admitted to the existence of the following
two aggravating circumstances that make the Defendant
eligible for the death penalty: (1) the murder was committed
in an especially cruel or heinous manner; and (2) the
defendant has been convicted of a serious offense. You must
accept his admission.
“Especially” means “unusually great or significant.”
The term “especially cruel” focuses on the victim’s pain and
suffering. The defendant admitted that the murder was
committed in an “especially cruel” manner and that the
victim consciously suffered physical or mental pain, distress
or anguish prior to death, and the defendant knew or should
have known that the victim would suffer.
“Especially heinous” is used to describe the defendant’s state
of mind by looking to the defendant’s words and actions at or
near the time of the offense. A murder is especially heinous if
it is hatefully or shockingly evil, in other words, grossly bad.
The defendant admitted the murder was especially heinous

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Opinion of the Court

and that he exhibited such a mental state at the time of the
killing by inflicting gratuitous violence on the victim beyond
that necessary to kill. The defendant “inflicted gratuitous
violence” by intentionally inflicting violence clearly beyond
what was necessary to kill the victim, and that the defendant
continued to inflict this violence after the defendant knew or
should have known that the defendant had inflicted a fatal
injury.
“A serious offense,” as referred to in these instructions,
includes the offenses of burglary, kidnapping, and
aggravated assault.

¶115 We review whether jury instructions adequately stated the
law de novo. State v. McCray, 218 Ariz. 252, 258 ¶ 25 (2008). “We consider
the jury instructions as a whole to determine whether the jury received the
information necessary to arrive at a legally correct decision.” Dann, 220
Ariz. at 363 ¶ 51. Because Montoya did not object to the jury instructions,
we review any error for fundamental error. State v. Fierro, 254 Ariz. 35, 41
¶ 20 (2022).

¶116 The (F)(6) aggravator may be counted only once, but a finding
of two or all of the (F)(6) factors may increase the strength of the aggravator.
Miller, 186 Ariz. at 327. Here, the jury instruction was adequate. It
explicitly stated that Montoya had admitted to two—not
three—aggravating circumstances. The jury instruction also numbered out
the aggravators, lumping especially cruel and heinous together: “(1) the
murder was committed in an especially cruel or heinous manner; and
(2) the defendant has been convicted of a serious offense.” A layperson
would understand the instruction to mean that Montoya’s admission to
murdering A.R. in an especially cruel and heinous manner amounted to a
single aggravator. Thus, we conclude that the jury instruction adequately
stated the law.

¶117 Additionally, the prosecutor repeatedly reminded jurors that
especially cruel and especially heinous were two prongs of a single
aggravator. Specifically, the prosecutor stated: “Please remember that just
because there are two components of this aggravator proven does not mean
this constitutes more than one aggravating factor. This is just one
aggravating factor. However, you can consider that both especially cruel

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Opinion of the Court

and heinous are proven while determining the value that you give to that
one aggravating factor when you deliberate.” Later, the prosecutor
reiterated: “Again, we’re still talking about one aggravating factor. There’s
just two components, the cruelty and the heinousness.” This averted any
confusion that the definitions of “especially,” “especially cruel,” and
“especially heinous” might have otherwise engendered. “Appellate courts
do not evaluate jury instructions out of context. Closing arguments of
counsel may be taken into account when assessing the adequacy of jury
instructions.” State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989) (internal
citation omitted); see also State v. Felix, 237 Ariz. 280, 285 ¶ 18 (App. 2015)
(“[A]lthough ‘arguments of counsel generally carry less weight with a jury
than do instructions from the court,’ in some trials, the arguments of
counsel can cure or obviate instructional ambiguity or error.” (citations
omitted)). Accordingly, there was no fundamental error.

H. Montoya’s Non-Capital Guilty Pleas

¶118 Montoya argues that his guilty pleas to the non-capital counts
were not knowing, intelligent, and voluntary because the court did not
inform him that, by pleading guilty, he would be waiving his Sixth
Amendment right for post-conviction counsel to raise any ineffective
assistance of counsel claims. Because Montoya did not object below, we
review for fundamental error. See Henderson, 210 Ariz. at 567 ¶ 19.

¶119 Montoya’s argument is premised on the incorrect assumption
that he does not have a right to post-conviction counsel. We “will not
resolve an ineffective assistance of counsel claim on direct appeal unless the
record clearly indicates that the claim is meritless.” State v. Maturana, 180
Ariz. 126, 133 (1994). But if we affirm a pleading capital defendant’s death
sentence, the defendant may pursue Rule 32 post-conviction relief. Ariz. R.
Crim. P. 32.1; Ariz. R. Crim. P. 32.3(c). Ineffective assistance of counsel is a
ground for relief under Rule 32. Ariz. R. Crim. P. 32.1(a) & cmt. In a Rule
32 post-conviction proceeding, a defendant may argue ineffective
assistance of counsel with regards to both his trial and appellate counsel.
Arizona statute and court rules require a court to appoint counsel to an
indigent pleading capital defendant for his or her first petition for Rule 32
post-conviction relief. A.R.S. § 13-4041(B), (E); Ariz. R. Crim. P. 32.5(b).

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¶120 Thus, Montoya has a right to counsel in his first
post-conviction proceeding, and his counsel can raise an ineffective
assistance of counsel claim there. For this reason, his argument that the
court failed to inform him that, by pleading guilty, he would be waiving his
right to counsel, fails.

¶121 Montoya also argues that the court erred in advising him that,
in pleading guilty, he waived his right to directly appeal his non-capital
matters and that, if he wished to seek post-conviction relief, he was required
to file for relief within ninety days. Only defendants who plead guilty in
non-capital cases waive their right to direct appeal. Ariz. R. Crim. P. 17.1(e).
Because Montoya was sentenced to death, he possessed an automatic right
of direct appeal for the non-capital matters in his case. Ariz. R. Crim. P.
31.2(b); Ariz. R. Crim. P. 32.4(b)(3)(C); State v. Ovante, 231 Ariz. 180, 184 ¶ 10
(2013) (stating that, if a defendant pleads guilty to capital and non-capital
crimes in the same case, this Court will review the validity of the
non-capital guilty plea on direct appeal). Thus, the court erred by telling
Montoya that he waived his right to direct appeal. Nonetheless, after he
was sentenced to death, the court informed Montoya through a written
notice of his automatic right to direct appeal on all convictions and
judgments to this Court, his right to post-conviction relief if this Court
affirmed his convictions, and his right to representation in both
proceedings. Montoya has since, evidenced by this appeal, exercised his
right to direct appeal and representation on direct appeal. Montoya cannot
show that he was prejudiced by possessing, and actually exercising, more
rights than he thought would be available to him at the time of his guilty
plea. Accordingly, the court’s error was not fundamental.

I. Independent Review Of Jury’s Verdict

¶122 We independently review the propriety of a death sentence,
even if the defendant does not raise the issue. A.R.S. § 13-756(A); Allen, 253
Ariz. at 363–64 ¶ 224. In our independent review, we “review the jury’s
finding of aggravating circumstances and the imposition of a death
sentence for abuse of discretion, viewing the facts in the light most
favorable to sustaining the verdict.” Allen, 253 Ariz. at 363–64 ¶ 224
(internal quotation mark omitted) (quoting State v. Gunches, 240 Ariz. 198,
207 ¶ 41 (2016)). We “will not reverse the jury’s decision so long as any
reasonable jury could have concluded that the mitigation established by the

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Opinion of the Court

defendant was not sufficiently substantial to call for leniency.” Id. at 364
¶ 224 (quoting Morris, 215 Ariz. at 341 ¶ 81).

¶123 Here, a reasonable jury could have returned a death verdict
for Montoya’s murder of A.R. Montoya admitted guilt to first degree
murder and two capital aggravators: his prior serious convictions and that
he murdered A.R. in an especially cruel and heinous manner. The
mitigating circumstances that Montoya argued—acceptance of
responsibility, waiver of the presentation of mitigation evidence, personal
and family history of substance abuse, abandonment, good behavior while
in prison, and having a daughter—were relatively insubstantial. This is
especially true considering the State’s argument that these mitigating
circumstances deserved little weight in light of Montoya’s initial denial of
responsibility for his murder of A.R. and his abandonment of his own
daughter. Thus, the jury did not abuse its discretion by returning a death
verdict.

J. Issues Preserved For Federal Review

¶124 Montoya seeks to preserve nineteen issues for federal review.
We decline to revisit these previously rejected arguments.

CONCLUSION

¶125 We affirm Montoya’s conviction for first degree murder and
the imposition of the death sentence for his murder of A.R. We also affirm
his convictions and sentences for second degree burglary, kidnapping,
aggravated identity theft, unlawful use of means of transportation, theft,
and two counts of animal cruelty.

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