SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-05-0507-AP 

 Appellee, ) 

 ) Pima County 

 v. ) Superior Court 

 ) No. CR20031993 

CODY JAMES MARTINEZ, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N 

_________________________________ ) 

Appeal from the Superior Court in Pima County 

The Honorable Howard L. Fell, Judge Pro Tempore

Affirmed

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Chief Counsel, 

 Capital Litigation Section

 Lacey Alexandra Stover Gard, Tucson 

 Assistant Attorney General 

Attorneys for State of Arizona

LAW OFFICES OF WILLIAMSON & YOUNG P.C. Tucson

 By S. Jonathan Young

Attorneys for Cody James Martinez

________________________________________________________________

R Y A N, Justice

I 

A1

¶1 On June 12, 2003, twenty-one-year-old Cody James 

Martinez, fifteen-year-old Michael Lopez, and several other 

 

1

 We review the facts in the “light most favorable to 

sustaining the verdict[s].” State v. Tucker (Tucker I), 205 

Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003). 
2 

adolescents were at a friend’s Tucson home smoking marijuana. 

Johnathon Summey-Montaño arrived with Francisco Aguilar. 

Aguilar was sent out with two others to purchase rolling papers 

for the group. 

¶2 Summey-Montaño described Aguilar to Martinez as a 

“baller” (meaning he had money) and suggested that they rob him. 

Martinez agreed. When Aguilar returned to the house, Martinez

first engaged him in a conversation and then punched him in the 

face. Martinez and Summey-Montaño began beating Aguilar, while 

other members of the group went outside. Martinez and SummeyMontaño called Aguilar a child molester.2

 Martinez directed 

Lopez to join in kicking Aguilar, threatening to kill Lopez if 

he did not do so. Summey-Montaño pointed a shotgun at Aguilar. 

Martinez took the shotgun and hit Aguilar in the head with it. 

Martinez and Summey-Montaño then bound Aguilar’s hands and feet. 

Aguilar was crying and begging for an explanation for the 

beating. Martinez and Summey-Montaño took valuables from 

Aguilar: Summey-Montaño put on Aguilar’s necklace and took two 

dollars from one of Aguilar’s shoes; Martinez put Aguilar’s gold 

bracelet in his own pocket. 

¶3 Lopez and Summey-Montaño then forced Aguilar into the 

trunk of a car. Martinez, Lopez, Summey-Montaño, and at least 

 

2

 Martinez claimed that Summey-Montaño had told him that 

Aguilar had raped Summey-Montaño’s eleven-year-old cousin.
3 

one other person got into the car. Martinez drove and SummeyMontaño gave directions to Aguilar’s home. When they arrived, 

Martinez instructed one of the others to watch for Aguilar’s 

family. Martinez and Summey-Montaño entered the house and 

returned with beer and liquor. Apparently dissatisfied with the 

haul, Martinez demanded that Aguilar tell him “where’s the 

stuff; where’s the shit?” - a reference to “drugs, money, or 

whatever.” Martinez returned to the house and came back with a 

computer printer.3

¶4 When they tried to leave, Martinez could not start the 

car. The group pushed the car, with Aguilar still in the trunk, 

to a nearby gas station. They put gas in the car but it still 

did not start. The group pushed it to a nearby pay telephone 

and sat there. Aguilar remained in the trunk. 

¶5 Later, an acquaintance arrived at the gas station. 

Martinez spoke to this person and showed him a bag of 

methamphetamine. The acquaintance used Aguilar’s mobile 

telephone to call Fernando Bedoy, who arrived in a Ford 

Explorer. Using the Explorer, Martinez and the others pushed 

 

3

 Martinez was seen with women’s jewelry after leaving 

Aguilar’s house. Fritzie Gonzalez, the woman with whom Aguilar 

lived, told jurors that her house had been “turned upside down.” 

She was missing beer and liquor, a computer printer, jewelry, 

and jewelry boxes. Gonzalez identified jewelry found on 

Martinez as including a bracelet she had given Aguilar and other 

items that belonged to her. 
4 

their vehicle to a side street. The car still would not start.

¶6 Summey-Montaño and Martinez then led Aguilar from the 

trunk of the car to the cargo space of the Explorer, keeping him 

covered with a blanket. Martinez poked Aguilar with a shotgun 

when Aguilar did not crawl into the Explorer fast enough. 

¶7 Martinez, Bedoy, Lopez, and Summey-Montaño got into 

the Explorer, leaving the rest of the group behind. Bedoy 

drove. After some discussion between Summey-Montaño and 

Martinez, Martinez directed Bedoy to the desert. Martinez 

announced he intended to kill Aguilar and anyone who tried to 

stop him. 

¶8 As Bedoy drove, Martinez and the others were laughing 

and taunting Aguilar. Summey-Montaño stabbed Aguilar in the 

hand with a knife and hit him with a compact disc he claimed to 

have stolen from Aguilar. He also mocked Aguilar, asking him to 

name his favorite track on the disc. 

¶9 When the group arrived at the desert area, SummeyMontaño pulled Aguilar out of the Explorer. Martinez and 

Summey-Montaño kicked Aguilar. Aguilar was dragged around the 

truck, making “noises of pain . . . moaning and groaning.” 

Martinez, Summey-Montaño, and Lopez continued kicking and 

stomping on Aguilar, while Aguilar begged for his life. 

Martinez demanded he shut up and ordered Aguilar to march into 
5 

the desert at gunpoint and then to lie down.

¶10 Martinez fired a shot at Aguilar that went “[r]ight 

above his head,” although Martinez stood directly above the 

victim. Martinez laughed about having missed. As Martinez 

reloaded the shotgun, Summey-Montaño beat Aguilar with a tire 

iron and stabbed him in the belly. Martinez fired again, this 

time hitting Aguilar in the collarbone area, “[a] little lower 

than the neck,” but not killing him. Summey-Montaño refused 

Martinez’s request that he finish off Aguilar, so Martinez fired 

one more time, hitting Aguilar in the neck, killing him.

¶11 Martinez and Summey-Montaño ordered Lopez and Bedoy to 

wipe out the footprints they had left. Trash was piled on 

Aguilar’s body and Martinez lit the pile on fire. The group 

returned to the Explorer and drove away. 

¶12 Moments later, a Tucson Airport Authority police 

officer on patrol noticed smoke in the distance and the Explorer 

driving from that direction and initiated a traffic stop. As 

the police cruiser and the Explorer crossed paths, Martinez hid 

cocaine and methamphetamine in the vehicle in which he was 

travelling. He told the group to tell police they were coming 

from a barbeque at “Cisco’s.” He told the officer who stopped 

the Explorer the same. Police detained the group. Tucson 

firefighters, meanwhile, responded to the blaze and reported 
6 

that a body had been found. After the body was discovered, 

Martinez was taken into custody and, incident to that arrest, 

was searched. Jewelry and marijuana were found in Martinez’s 

possession. Liquor, drugs, and the shotgun were also found in 

the Explorer. 

B 

¶13 In the fall of 2005, a jury found Martinez guilty of 

premeditated first degree murder, felony murder, and kidnapping. 

The sentencing proceedings followed, and at the aggravation 

phase, the jury unanimously found that Martinez murdered Aguilar 

for pecuniary gain and committed the slaying in an especially 

cruel, heinous, and depraved manner. See Ariz. Rev. Stat. 

(“A.R.S.”) section 13-703(F)(5), (F)(6) (Supp. 2003). At the 

penalty phase, Martinez put on evidence that he had had a 

terrible childhood, that he had been molested as a child, and 

that those circumstances led him to murder Aguilar. The jury 

concluded that the mitigation evidence was not sufficiently 

substantial to call for leniency, determining that Martinez 

should be sentenced to death. 

¶14 An automatic notice of appeal and an appeal from posttrial rulings4

 were filed with this Court under Arizona Rules of 

 

4

 In early 2006, Martinez filed a motion for new trial under 

Arizona Rule of Criminal Procedure 24.1, raising many of the 
7 

Criminal Procedure 26.15 and 31.2(b) and A.R.S. §§ 13-4031, -

4033 (2001). We have jurisdiction under the Arizona 

Constitution, Article 6, Section 5(3), and A.R.S. §§ 13-4031, -

4033. 

II 

A

¶15 Martinez first argues that prosecutorial misconduct 

warrants a new trial. This Court will reverse a conviction for 

prosecutorial misconduct only when “(1) misconduct is indeed 

present; and (2) a reasonable likelihood exists that the 

misconduct could have affected the jury’s verdict, thereby 

denying [the] defendant a fair trial.” State v. Velazquez, 216 

Ariz. 300, 311, ¶ 45, 166 P.3d 91, 102 (2007), cert. denied, 128 

S. Ct. 2078 (2008) (quoting State v. Anderson (Anderson II), 210 

Ariz. 327, 340, ¶ 45, 111 P.3d 369, 382 (2005)). Martinez did 

not object below to any of the prosecution’s allegedly improper 

statements. Absent a trial objection, we review claims of 

prosecutorial misconduct for fundamental error. Id. at ¶ 47. 

¶16 Fundamental error is “error going to the foundation of 

the case, error that takes from the defendant a right essential 

to his defense, and error of such magnitude that the defendant 

could not possibly have received a fair trial.” State v. 

 

issues he now advocates on appeal. The superior court denied 

the motion after a hearing. 
8 

Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) 

(citation omitted). “To prevail under this standard of review, 

a defendant must establish both that fundamental error exists 

and that the error in his case caused him prejudice.” Id. at ¶ 

20 (citation omitted). 

1 

¶17 When the police stopped the Explorer, Martinez and his 

companions told investigators that they had been at a barbeque 

at “Cisco’s.”5

 The jury heard that this cover story came from 

Martinez. In closing arguments at the aggravation phase, the 

prosecution told jurors that Martinez provided his friends “a 

sickening excuse to offer up to the police officers – we were at 

Cisco’s barbecue – so he cannot be connected with this crime.” 

¶18 Martinez claims that the prosecutor knew, based on a 

series of free talks between the State and other defendants, as 

well as an interview of Martinez, that the alibi, although a 

fabrication, was not a “joke” about burning Aguilar because the 

reference was to another “Cisco.” 

¶19 A prosecutor is entitled to make arguments supported 

by the record. State v. Hughes, 193 Ariz. 72, 85, ¶ 59, 969 

P.2d 1184, 1197 (1998). The prosecutor’s comment about the 

alibi was a suggestion that Martinez’s reference to “Cisco” 

 

5

 Francisco Aguilar had been called “Cisco.” 
9 

could not credibly be called a coincidence. The police 

interviews and free talks emphasized by Martinez on appeal do 

not rule out the possibility that Martinez did, in fact, intend 

the alibi to refer to the crime. The prosecutor’s statement was 

neither false nor a mischaracterization. There was simply no 

misconduct in this instance. 

2 

¶20 Martinez makes several additional attempts to 

demonstrate prosecutorial misconduct, none of which warrant 

detailed discussion. He alleges that prosecutors falsely 

claimed that Martinez “joked” about missing his first shot at 

Aguilar, wrongly claimed that Martinez had been accused of 

committing arson at his elementary school, and fallaciously 

questioned the veracity of Martinez’s claims that he killed 

Aguilar because he believed Aguilar was a child molester. All 

of the prosecutors’ comments are supported by evidence, 

including, in some cases, evidence proffered by Martinez 

himself.6

 These additional allegations, therefore, are 

 

6

 For example, both Bedoy and Lopez testified that Martinez 

laughed about missing his first, close-range shot at Aguilar. 

Evidence of the school arson allegations against him was in the 

records provided by Martinez to the jury. Further, the 

prosecutor’s comments as to Martinez’s motive properly 

questioned the link between the alleged motive and Martinez’s 

own claim of having been victimized as a child. The prosecution 

pointed to the absence in the same documents of any complaint by 
10 

meritless. 

B 

¶21 The jury returned separate verdicts finding that 

Martinez committed felony murder and premeditated murder. 

Martinez argues that there was insufficient evidence to convict 

him of felony murder. He does not challenge the jury’s finding 

of premeditated murder. 

¶22 Because felony murder is an alternate theory of first 

degree murder, State v. Tucker (Tucker I), 205 Ariz. 157, 167, ¶ 

50, 68 P.3d 110, 120 (2003), this Court need not consider a 

challenge to the sufficiency of the evidence of felony murder 

when the jury also returns a separate verdict of guilt for 

premeditated murder. Anderson II, 210 Ariz. at 343, ¶ 59, 111 

P.3d at 385 (“In any event, the jury returned separate guilty 

verdicts for both felony murder and premeditated murder as to 

each victim; therefore, the first-degree murder convictions 

would stand even absent a felony murder predicate.”); cf. State 

v. Smith (Todd), 193 Ariz. 452, 460, ¶¶ 34-36, 974 P.2d 431, 439 

(1999) (declining to address issue with premeditation 

instruction because defendant failed to challenge conviction for 

felony murder). 

¶23 We are, however, concerned about the felony murder 

 

Martinez that when he was a child he had been the victim of 

molestation. 
11 

instruction in this case. The instruction stated: 

The crime of first degree felony murder 

requires proof of the following two things: 

The defendant committed or attempted to 

commit a kidnapping; and 

In the course of and in furtherance of this 

crime or immediate flight from this crime, 

the defendant or another person caused the 

death of any person. 

With respect to the felony murder rule, 

insofar as it provides the basis for a 

charge of first degree murder, there is no 

requirement that the killing occurred “while 

committing” or “engaged in” the felony, or 

that the killing be a part of the felony. 

The homicide need not have been committed to 

perpetrate the felony. 

It is enough if the felony and the killing 

were part of the same series of events. 

(Emphasis added.) The instruction used language long absent 

from Arizona’s felony murder statute. We have discouraged the 

use of this instruction because the emphasized sentence is not 

an accurate description of Arizona’s felony murder statute. 

State v. Miles, 186 Ariz. 10, 15, 918 P.2d 1028, 1033 (1996). 

Although Martinez cannot show prejudice, the instruction does 

not accurately state the law and we disapprove of its future 

use. 

C 

¶24 The State granted Lopez and Bedoy testimonial immunity 

as part of plea agreements under which each was permitted to 
12 

plead to kidnapping, with a maximum sentence of twelve years. 

Each testified against Martinez at trial. Summey-Montaño 

pleaded guilty to first degree murder and was sentenced to life 

imprisonment; his post-conviction relief proceedings, see Ariz. 

R. Crim. P. 32, were pending at the time of Martinez’s trial. 

Martinez sought to compel Summey-Montaño to testify. SummeyMontaño invoked his Fifth Amendment right against selfincrimination. The trial judge held that Summey-Montaño 

retained that right during the pendency of his initial postconviction proceedings. See State v. Rosas-Hernandez, 202 Ariz. 

212, 217, ¶ 14, 42 P.3d 1177, 1182 (App. 2002) (“[I]f a witness’ 

Fifth Amendment privilege survives during a direct appeal, it 

also survives pending post-conviction relief.”).

¶25 Martinez now claims that his Sixth Amendment right to 

compel a witness to testify on his behalf was violated by the 

trial court’s failure to require Summey-Montaño to testify. We 

review the denial of a motion to compel for an abuse of 

discretion. State v. Corrales, 138 Ariz. 583, 588-89, 676 P.2d 

615, 620-21 (1983). 

¶26 A defendant has a right under the Sixth Amendment to 

compel witness testimony, but the right is “not absolute” and 

will give way when the witness’s preservation of his own Fifth 

Amendment rights would prevent him from answering relevant 
13 

questions. State v. Harrod (Harrod III), 218 Ariz. 268, ___, ¶¶ 

20-21, 183 P.3d 519, 527 (2008). 

¶27 Citing Chavez v. Martinez, 538 U.S. 760 (2003), 

Martinez argues that Summey-Montaño enjoyed no Fifth Amendment 

right to avoid testifying because such a right is implicated 

only by the government’s use of compelled testimony. Chavez

stands for the proposition that a person subject to 

interrogation suffers no constitutional injury from the 

interrogation itself for the purpose of federal civil rights 

statutes. Id. at 766 (“We fail to see how, based on the text of 

the Fifth Amendment, Martinez can allege a violation of this 

right, since Martinez was never prosecuted for a crime, let 

alone compelled to be a witness against himself in a criminal 

case.”) (plurality). We do not read Chavez as thus requiring 

the government to compel defense witnesses to testify. Rather, 

as we recently reiterated, when a witness has continued reason 

to fear prosecution, the defendant’s Sixth Amendment right to 

compel that witness’s testimony may be properly limited. Harrod 

III, 218 Ariz. at ___, ¶ 23, 183 P.3d at 527; see also RosasHernandez, 202 Ariz. at 217, ¶ 16, 42 P.3d at 1182 (stating that 

a defendant who pleaded guilty “retained the right not to 

incriminate himself during the . . . period in which a timely 

initial petition for post-conviction relief may be filed”) 
14 

(emphasis added). 

¶28 Martinez also claims that the prosecution attempted to 

skew the jury’s understanding of the circumstances of the crimes 

by failing to offer immunity to Summey-Montaño, and therefore 

his Fourteenth Amendment due process rights were violated. This 

allegation of prosecutorial misconduct is not reflected in the 

record below; we therefore review for fundamental error. 

Velazquez, 216 Ariz. at 311, ¶ 47, 166 P.3d at 102. 

¶29 “The state’s refusal to grant a particular witness 

immunity does not violate a defendant’s right to due process 

absent . . . a showing that the witness would present clearly 

exculpatory evidence and that the state has no strong interest 

in withholding immunity.” State v. Doody, 187 Ariz. 363, 376, 

930 P.2d 440, 453 (App. 1996). There is no such showing here. 

¶30 Martinez claims that the prosecution manipulated the 

sentencing agreements to prevent co-defendant Summey-Montaño 

from testifying to the “real reason” for the murder, which was 

not to cover up a robbery, but to punish Aguilar for the alleged 

molestation of Summey-Montaño’s cousin. But that argument is 

refuted by the record. The jury heard this information. Both 

Lopez and Bedoy testified that Martinez knew of the allegations 
15 

against Aguilar.7

D 

¶31 During jury selection, a juror asked the trial judge 

about the appellate process. The judge described the process, 

noting that “anybody who is convicted of a crime has various 

Post-Conviction Relief rights. In other words, they can appeal 

the conviction. A higher court can review it and see if I did 

anything wrong, or if I made any improper rulings, if Mr. 

Martinez’s constitutional rights were violated, that kind of 

thing.” 

¶32 Martinez claims that the trial judge’s comments 

improperly minimized the jury’s role in sentencing him to death. 

In Caldwell v. Mississippi, 472 U.S. 320, 333 (1985), the 

Supreme Court stated that “[because] the sentence [is] subject 

to appellate review [only upon] a sentence of death, the chance 

that an invitation to rely on that review will generate a bias 

toward returning a death sentence is simply too great.” 

¶33 No Caldwell error occurred here. Caldwell applies 

“only to certain types of comment[s] – those that mislead the 

jury as to its role in the sentencing process in a way that 

allows the jury to feel less responsible than it should for the 

 

7

 To the extent that evidence of the “real motive” was 

relevant as mitigation, Martinez himself told the jury in the 

penalty phase that this was the reason he killed Aguilar. 
16 

sentencing decision.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994); 

Anderson II, 210 Ariz. at 337, ¶ 22, 111 P.3d at 379 (same); see 

also Caldwell, 472 U.S. at 343 (O’Connor, J., concurring in part 

and concurring in the judgment) (prosecutor’s “misleading 

emphasis on appellate review misinformed the jury . . . creating 

an unacceptable risk that the death penalty [may have been] 

meted out arbitrarily or capriciously”) (quotation marks 

omitted). 

¶34 In contrast, the trial court here properly explained 

that appellate review largely pertains to the court’s legal 

decisions; further, in preliminary instructions given shortly 

after the complained-of statement, the court told the jury that 

the “decision to impose or not impose the death penalty is made 

by you, the jury, not by the Judge. Your decision to sentence 

or not sentence the defendant to death is not a recommendation. 

Your decision to sentence or not sentence the defendant to death 

will be binding.” 

E 

¶35 Martinez contends that he was improperly forced to use 

a peremptory challenge to strike a juror whom the trial court 

should have struck for cause. We need not address this argument 

because the juror in question was not seated and Martinez makes 

no claim that any of the jurors who decided his case should have 
17 

been struck for cause. See State v. Glassel, 211 Ariz. 33, 46-

47, ¶ 41, 116 P.3d 1193, 1206-07 (2005); State v. Hickman, 205 

Ariz. 192, 200-01, ¶¶ 34-36, 40-41, 68 P.3d 418, 426-27 (2003). 

F 

¶36 Defense counsel claimed at trial that he was unaware 

that the State had alleged the (F)(5) pecuniary gain aggravator. 

Martinez now argues the consequences of trial counsel’s apparent 

lack of preparation. This issue is not appropriate for review 

on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 

P.3d 525, 527 (2002) (“[I]neffective assistance of counsel 

claims are to be brought in Rule 32 proceedings.”). 

G 

¶37 Martinez next claims that during the jury’s 

deliberations, the trial judge improperly answered jury 

questions without notice to him or counsel. This alleged lack 

of notice was a principal claim in Martinez’s motion for a new 

trial. At the evidentiary hearing on that motion, members of 

his defense team (but not lead counsel) and Martinez testified 

that they had no knowledge, or did not remember, that the jury 

had posed questions; they also claimed that if they had known, 

they would have responded. The trial judge found, however, 

based on his recollection, and the affidavit of his bailiff, 

that the attorneys had, in fact, been contacted and lodged no 
18 

objection to the trial court’s proposed answers. The trial 

court rejected Martinez’s factual contentions. Because the 

trial court’s conclusion has factual support in the record, we 

defer to that ruling.8

¶38 In any event, the trial court committed no error in 

its responses addressing the jurors’ questions. As the 

questions and answers set out in the footnote indicate, there 

was simply nothing erroneous or prejudicial in the trial court’s 

responses.9

 

8 The better practice is to make a contemporaneous record 

with counsel about any jury questions and proposed responses. 

Cf. State v. Mata, 125 Ariz. 233, 240-41, 609 P.2d 48, 55-56 

(1980) (trial court contacted counsel and offered opportunity to 

make record). 

9

 The questions and answers were: 

[Q] Is murder as an attempt to cover up a 

robbery considered a murder for pecuniary 

gain? 

[A] You must rely on the Court’s instructions 

and make your determination. No further 

explanation is appropriate at this time.

[Q] B. If some jurors agree that there are 

mitigating circumstances must all jurors be 

in agreement that a mitigating circumstance 

exists. A. Must we be unamous [sic] to find 

for life. [It appears from the record that 

Judge Fell added the letter designations to 

this jury question, then answered the 

question correspondingly]. 
19 

¶39 For similar reasons we reject Martinez’s additional 

claim that the judge wrongfully failed to recognize jury 

confusion from the questions and to clarify the jury 

instructions. See State v. Ramirez, 178 Ariz. 116, 125-27, 871 

P.2d 237, 246-48 (1994) (“[W]hen a jury asks a judge about a 

matter on which it has received adequate instruction, the judge 

may in his or her discretion refuse to answer, or may refer the 

jury to the earlier instruction.”) (citation omitted). The 

trial court acted within its discretion here. It simply 

referred the jury to the original instructions in two instances 

and in the third correctly stated the requirement that any 

verdict be unanimous. The original instructions properly noted 

that jurors did not have to settle on any single mitigator in 

order to return a life sentence. 

H 

¶40 Martinez argues the trial court committed fundamental 

error in instructing the jury that, if it was unable to reach a 

 

[A] A. See [Instruction] #1 re: unanimous. 

B. You must rely on the instructions given. 

No further instructions will be provided.

[Q] The instructions have confused some. 

Does the verdict have to be unanimous for 

death or life? Some think only death 

sentence has to be unanimous[.] 

[A] Your verdict must be unanimous no matter 

what your decision is. 
20 

verdict at the aggravation phase, the judge would then impose a 

life sentence. Martinez argues that this misstatement of the 

law10 amounted to coercion of the verdict. Although the State 

conceded at oral argument that the jury instruction was 

incorrect, there was no coercion here. Indeed, the mistaken 

instruction favored Martinez by suggesting a single holdout 

juror could forestall death. Cf. Mills v. Maryland, 486 U.S. 

367, 375 (1988) (death penalty arbitrary when a holdout juror 

can prevent otherwise unanimous jury from finding mitigating

factor). The trial court’s misstatement of the law did not 

prejudice Martinez. 

I 

1 

¶41 During the penalty phase of the sentencing proceeding, 

Martinez introduced numerous documents, including Child 

Protective Service (“CPS”) reports, police reports, and other 

records. For example, Martinez introduced documents reporting 

that he had committed arson at his elementary school, including 

 

10 Compare A.R.S. § 13-703.01(E) (Supp. 2007) (“If the trier 

of fact unanimously finds no aggravating circumstances, the 

court shall then determine whether to impose a sentence of life 

or natural life on the defendant.”), with id. § 13-703.01(J) 

(“At the aggravation phase, if the trier of fact is a jury, the 

jury is unable to reach a verdict on any of the alleged 

aggravating circumstances and the jury has not found that at 

least one of the alleged aggravating circumstances has been 

proven, the court shall dismiss the jury and shall impanel a new 

jury.”) (emphasis added).
21 

school reports and court records. He also introduced pages of 

disciplinary records from schools and the juvenile justice 

system, as well as reports from psychologists and psychiatrists 

who had interviewed him. Martinez attempted to show that his 

mother was inattentive and used drugs during pregnancy, that he 

was of limited intelligence, and that he had been sexually 

abused. Martinez’s expert testified that a combination of drug 

use, lack of sleep, and his own unresolved feelings about the 

molestation, along with Aguilar’s refusal to admit his own 

conduct as an alleged child molester, likely triggered the 

episode that resulted in Aguilar’s death. 

¶42 The State’s rebuttal evidence suggested that 

Martinez’s family life was not as bad as he claimed, that his 

mother had made efforts to follow up on counseling and control 

his behavior, and that he exhibited behavior consistent with 

being a psychopath. The State also argued that in all of the 

evidence of prior violence by Martinez, nothing indicated a 

sexual trigger and Martinez himself never reported any sexual 

abuse until after a half-dozen sessions with his mental health 

expert in preparation for trial. The State also pointed out 

that a CPS report submitted as mitigation indicated that a prior 

suspicion that Martinez had been sexually abused had not been 

substantiated. 
22 

2

¶43 Martinez argues that the State’s efforts to rebut his 

mitigation evidence in the penalty phase violated his rights 

under the Sixth Amendment’s Confrontation Clause and deprived 

him of due process. He objects principally to “hearsay” 

testimony by juvenile probation officers regarding his behavior, 

the victim impact statement provided by Aguilar’s birth mother, 

and the claim he committed arson at his elementary school. 

Because he did not raise these objections at trial, we review 

for fundamental error. E.g., State v. Ellison, 213 Ariz. 116, 

132, ¶ 54, 140 P.3d 899, 915 (2006), cert. denied, 127 S. Ct. 

506 (2006). 

¶44 As Martinez recognized, we rejected a similar 

Confrontation Clause argument in State v. McGill, 213 Ariz. 147, 

160, ¶¶ 54-56, 140 P.3d 930, 943 (2006), cert. denied, 127 S. 

Ct. 1914 (2007) (holding hearsay evidence admissible at the 

penalty phase, consistent with due process, when the “defendant 

knew about the statements and had an opportunity to either 

explain or deny them” and when the testimony has “sufficient 

indicia of reliability to be responsible evidence”) (citation 

omitted). We decline Martinez’s invitation to revisit McGill.11

 

11 Martinez also argues that reports that he committed arson 

against his elementary school should have been excluded on other 

evidentiary grounds. His argument that Rule 404(b), Ariz. R. 
23 

¶45 Martinez’s assertions regarding the victim impact 

statement compel no different result. The statement, which was 

unsworn and not subject to cross-examination, explained that 

Aguilar aspired to make something of his life and was well-loved 

by his family. Martinez claims that Aguilar’s birth mother 

should have been subjected to cross-examination, that the 

statement was false, and that the State should have corrected 

it. But victim impact evidence is not put on by the State, nor 

is cross-examination permitted or placing the victim’s mother 

under oath necessary. See A.R.S. § 13-4426.01 (Supp. 2007) 

(“[T]he victim’s right to be heard is exercised not as a 

witness, the victim’s statement is not subject to disclosure to 

the state or the defendant or submission to the court[,] and the 

victim is not subject to cross-examination.”).12 Finally, the 

fact that the mother gave Aguilar up for adoption is immaterial 

 

Evid., and this Court’s related case law addressing the standard 

for admitting other acts evidence in criminal trials should 

preclude this evidence is misplaced. Section 13-703(C) (Supp. 

2007) mandates that “the prosecution . . . may present any 

information that is relevant to any of the mitigating 

circumstances . . . regardless of its admissibility under the 

rules governing admission of evidence at criminal trials” in the 

penalty phase of a capital proceeding. 

12 Martinez also claims that the falsity of the victim 

statement is demonstrated by the State’s later “disavowal” of 

it. This is not an accurate statement of the State’s position. 

In post-trial proceedings, the prosecution merely noted that 

Aguilar’s mother’s opinions were her own. See A.R.S. § 13-

4426.01. 
24 

to her status as a victim by consanguinity. See A.R.S. § 13-

703.01(S)(2). 

J 

1 

¶46 Martinez raises several arguments relating to jury 

instructions in the penalty phase. These arguments focus on the 

trial court’s characterization of the role of jurors in 

assessing the proper penalty. 

¶47 Martinez requested the following jury instruction 

about assessing mitigation evidence: 

[I]n this phase, the defendant has got to 

present any relevant evidence which he and 

his attorneys believe are mitigating factors 

which will persuade one or more [of you] 

that the defendant shall be shown leniency 

and not receive the death sentence. 

The State may also present evidence to you 

in an attempt to demonstrate the defendant 

should not be shown leniency. 

Rather than creating the risk of an unguided 

emotional response against the defendant, 

full consideration of evidence that 

mitigates against the death penalty is 

essential if you are to give a reasoned 

moral response to the defendant’s 

background, character and crime. 

¶48 The trial court rejected this instruction and offered 

an alternative that did not include the word “moral”; it also 

precluded the defense from making a “moral judgment” argument in 

its opening statement. 
25 

¶49 “A trial court’s refusal to give a jury instruction is 

reviewed for abuse of discretion.” Anderson II, 210 Ariz. at 

343, ¶ 60, 111 P.3d at 385 (citing State v. Bolton, 182 Ariz. 

290, 309, 896 P.2d 830, 849 (1995)). The legal adequacy of an 

instruction, however, is reviewed de novo. State v. Johnson, 

212 Ariz. 425, 431, ¶ 15, 133 P.3d 735, 741 (2006), cert. 

denied, 127 S. Ct. 559 (2006). 

¶50 Martinez contends that the trial court erred in 

“convert[ing] a moral decision into a factual decision.” He 

argues that the court misled the jurors in describing their role 

as reaching a “reasoned” decision, “uninfluenced by sympathy.” 

His argument hinges on the absence of the word “moral” from the 

instructions. 

¶51 The Supreme Court has described the capital sentencing 

decision as a “reasoned moral response” to mitigation evidence. 

Penry v. Lynaugh, 492 U.S. 302, 328 (1989), abrogated on other 

grounds by Atkins v. Virginia, 536 U.S. 304 (2002). 

¶52 The Supreme Court’s use of the phrase a “reasoned 

moral response” describes the result of individualized 

sentencing that appropriately considers “any aspect of the 

defendant’s character, propensities or record and any of the 

circumstances of the offense” relevant to determine whether the 

defendant should be shown leniency. A.R.S. § 13-703(G); see 
26 

also Kansas v. Marsh, 548 U.S. 163, 173-74 (2006) (jury must 

reach reasoned decision); Anderson II, 210 Ariz. at 349, ¶ 92, 

111 P.3d at 391 (rejecting claim that instruction that jury 

should not be “swayed by mere sentiment, conjecture, sympathy, 

passion, prejudice, public opinion, or public feeling” violated 

the Eighth Amendment). The superior court here made clear to 

the jury that it should consider all possible mitigating 

evidence. The omission of the word “moral” from the final 

instructions did not render the instructions, as a whole, 

incorrect or misleading. 

¶53 Likewise, we reject Martinez’s claim that the court 

prevented him from urging the jury to employ “moral judgment” in 

his favor. As the State notes, Martinez explicitly asked jurors 

to consider the case “in accordance with thousands of years of 

the Judeo-Christian tradition” and, in fact, traced that 

tradition from the Exodus to the Sermon on the Mount. 

Consequently, Martinez was effectively allowed to argue that a 

death verdict involved a “moral” judgment. 

2 

¶54 Martinez also challenges two other jury instructions. 

First, he contends that the court erred in instructing the jury 

that the “defendant has the burden of proving any mitigating 

circumstance by a preponderance of the evidence” and that “[i]f 
27 

your decision is that there are no mitigating circumstances or 

that mitigating circumstances are not sufficiently substantial 

to call for leniency, your verdict must be that the defendant be 

sentenced to death.” He claims that “[b]oth statements are 

technically accurate, but they leave the impression that the 

defendant bears the burden of proving that the mitigation is 

sufficiently substantial to call for leniency,” contrary to 

State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 123 

P.3d 662 (2005).13

¶55 Baldwin rejected the state’s contention that a jury 

should be instructed that the defendant bore the burden of 

proving that the mitigation was substantial enough to call for 

leniency, finding that neither the state nor the defendant has 

such a burden of proof. Id. at 472, ¶¶ 13-14, 124 P.3d at 666. 

The rejected instruction dealt with the burden of proof, not the 

burden of production. Our subsequent cases have held that the 

jury can properly be told that if it concludes that there is no 

mitigation or the mitigation is not sufficiently substantial to 

call for leniency, a death verdict should result. State v. 

Tucker (Tucker II), 215 Ariz. 298, 318, ¶ 74, 160 P.3d 177, 197 

(2007), cert. denied, 128 S. Ct. 296 (2007); accord Velazquez, 

216 Ariz. at 310, ¶ 43, 166 P.3d at 101 (instruction requiring a 

 

13 The trial here occurred before this Court issued its 

opinion in Baldwin. 
28 

verdict of death if jury unanimously finds no mitigating 

circumstances sufficiently substantial to call for leniency 

proper “as long as the jury is allowed to consider all relevant 

mitigating evidence”). 

¶56 Second, Martinez claims that an instruction requiring 

jurors to “individually weigh . . . mitigating circumstances 

against the aggravating circumstances” and describing the manner 

in which such weighing can be performed, was error. We rejected 

this argument in Velazquez. 216 Ariz. at 310, ¶ 39, 166 P.3d at 

101 (noting that term “weigh” may be used to describe juror’s 

decision). 

K 

¶57 Having received a note indicating that the jury was at 

an impasse, the trial judge stated in open court, with only 

counsel and Martinez present, that he was “going to bring [the 

jury] in and declare a mistrial.” When the jury returned, the 

court asked if further deliberations would be helpful. The 

jurors said yes. The court therefore dispatched the jury to 

continue deliberating. Martinez now argues that the trial had 

“ended,” and the judge erred by allowing further deliberation. 

As Martinez’s brief concedes, however, the judge “announced 

[the] intention to declare a mistrial”; he never actually 

granted a mistrial. Because no mistrial had been declared and 
29 

the jury indicated that further deliberations would be helpful, 

the superior court did not abuse its discretion in allowing 

further deliberations. 

L 

¶58 Martinez next claims he was entitled to a jury 

determination of his “defense” of mental retardation. The 

Eighth Amendment bars the execution of mentally retarded 

defendants. Atkins v. Virginia, 536 U.S. 304, 321 (2002). We 

noted in State v. Grell that Arizona’s proceedings for 

determining mental retardation operate like an affirmative 

defense. 212 Ariz. 516, 522, ¶ 26, 135 P.3d 696, 702 (2006), 

cert. denied, 127 S. Ct. 2246 (2007). But our analogy in Grell 

simply illustrated why the burden of proving retardation could 

be placed on the defendant; no affirmative defense was created. 

See State v. Casey, 205 Ariz. 359, 362, ¶ 10, 71 P.3d 351, 354 

(2003) (explaining that the power to create affirmative defenses 

lies with the legislature). 

M 

¶59 Martinez raises several Eighth Amendment and statutory 

challenges to this Court’s review of death penalty verdicts 

under A.R.S. § 13-703.05.14 “All legal and constitutional 

 

14 We decline to consider two of Martinez’s Eighth Amendment 

challenges. The first, that Martinez’s sentence is 

disproportionate compared to the sentences imposed upon other 
30 

questions are reviewed de novo.” Harrod III, 218 Ariz. at ___, 

¶ 38, 183 P.3d at 530. 

1

¶60 In 2002, the legislature ended our independent review 

of death penalty verdicts for murders committed after August 1, 

2002. See 2002 Ariz. Sess. Laws, ch. 1, § 7(B) (5th Spec. 

Sess.); see also A.R.S. § 13-703.04 (Supp. 2003); A.R.S. § 13-

703.05. Section 13-703.05 provides that this Court now only

determines whether the trier of fact abused its discretion in 

finding aggravating factors and determining that a death 

sentence is appropriate. 

¶61 The Eighth Amendment prohibits cruel and unusual 

punishment; however, the provision also “guarantees individuals 

the right not to be subjected to excessive sanctions.” Roper v. 

 

murderers, is settled against him, as his counsel correctly 

conceded at oral argument. Pulley v. Harris, 465 U.S. 37, 50-51 

(1984) (“There is . . . no basis in our cases for holding that 

comparative proportionality review by an appellate court is 

required in every case in which the death penalty is imposed and 

the defendant requests it.”); State v. Salazar, 173 Ariz. 399, 

417, 844 P.2d 566, 584 (1992) (rejecting proportionality 

review). 

The other, that the Eighth Amendment is violated as applied 

to his case, is waived for lack of argument. Ariz. R. Crim. P. 

31.13(c)(1)(vi) (proper argument “shall contain . . . the 

reasons therefor, with citations to the authorities, statutes 

and parts of the record relied on”). In any event, given that 

the jury properly found aggravating circumstances making 

Martinez eligible for a capital sentence, the argument is simply 

another way of arguing proportionality. 
31 

Simmons, 543 U.S. 551, 560 (2005). Martinez therefore argues 

that this Court must review the propriety of death penalty 

verdicts under a de novo standard, just as he claims the Supreme 

Court reviews excessive fines and punitive damages de novo. 

¶62 The Supreme Court, however, has never required de novo 

review of death sentences; review need only be “meaningful.” 

Clemons v. Mississippi, 494 U.S. 738, 749 (1990). “It is a 

routine task of appellate courts to decide whether the evidence 

supports a jury verdict and in capital cases . . . to consider 

whether the evidence is such that the sentencer could have 

arrived at the death sentence that was imposed.” Id. at 748-49. 

De novo review of the sentencing decision is not 

constitutionally required. See Jurek v. Texas, 428 U.S. 262, 

276 (1976) (providing judicial review enough to “promote the 

evenhanded, rational, and consistent imposition of death 

sentences under law”). 

2 

¶63 Martinez also argues that A.R.S § 13-4037(B) (2001), 

which directs that “[u]pon an appeal . . . from the sentence on 

the ground that it is excessive, the court shall have the power 

to reduce the extent or duration of the punishment imposed, if, 

in its opinion . . . the punishment imposed is greater than 

under the circumstances of the case ought to be inflicted” 
32 

preserves this Court’s independent review. 

¶64 At one time this Court purported to ground its power 

for independent review of death sentences in this provision’s 

predecessor. State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 

41, 51 (1976), abrogated in part by State v. Salazar, 173 Ariz. 

399, 417, 844 P.2d 566, 584 (1992). The Court subsequently has 

relied exclusively on A.R.S § 13-703.04 and its predecessors for 

such authority. E.g., Velazquez, 216 Ariz. at 313, ¶ 58, 166 

P.3d at 104. Because the legislature expressly abolished 

independent review for murders committed after August 1, 2002, 

any reliance on A.R.S § 13-4037 in the context of capital 

sentencing is misplaced. 

N 

¶65 Martinez challenges both the jury’s finding of 

aggravators and its determination that the mitigation evidence 

presented was not sufficiently substantial to call for leniency. 

We review to determine whether “the trier of fact abused its 

discretion in finding aggravating circumstances and imposing a 

sentence of death.” A.R.S. § 13-703.05(A). Consequently, “we 

uphold a decision if there is any reasonable evidence in the 

record to sustain it.” State v. Morris, 215 Ariz. 324, 340-41, 

¶ 77, 160 P.3d 203, 219-20 (2007), cert. denied, 128 S. Ct. 887 

(2008) (quotation marks and citation omitted). 
33 

1 

¶66 Under A.R.S § 13-703(F)(5), a first degree murder is 

aggravated if the homicide was committed “as consideration for 

the receipt, or in expectation of the receipt, of anything of 

pecuniary value.” Martinez argues that the (F)(5) aggravator 

was not proven as a matter of law because the State failed to 

establish that “but for” his pecuniary gain motive, the slaying 

would not have occurred. See State v. Garza, 216 Ariz. 56, 68, 

¶ 52, 163 P.3d 1006, 1018 (2007), cert. denied, 128 S.Ct. 890 

(2008) (“To establish the (F)(5) aggravator, ‘the state must 

prove that the murder would not have occurred but for the 

defendant’s pecuniary motive.’”) (quoting State v. Ring (Ring 

III), 204 Ariz. 534, 560, ¶ 75, 65 P.3d 915, 941 (2003)). 

Pecuniary gain, however, need only be a motive for the murder, 

not the sole motive. See State v. Hyde, 186 Ariz 252, 280, 921 

P.2d 655, 683 (1996) (“Pecuniary gain need not be the exclusive 

cause for a murder.”); accord State v. Boggs, ___ Ariz. ___, 

___, ¶¶ 73-74, 185 P.3d 111, 126 (2008). The notion of a “but 

for” relationship merely means that “[t]he state must establish 

the connection between the murder and motive through direct or 

strong circumstantial evidence.” Ring III, 204 Ariz. at 560, ¶ 

76, 65 P.3d at 941.

¶67 The jury did not abuse its discretion in finding the 
34 

(F)(5) aggravator here. It heard substantial evidence that 

Aguilar was beaten and his jewelry taken. The jury heard that 

he was ferried, while bound, to his own home where more property 

was taken and was interrogated about the location of other 

property. In addition, the jury heard evidence that Martinez 

agreed to “rob” Aguilar. Martinez and his companions took steps 

throughout the course of the crime to conceal Aguilar from 

public view: Martinez kept him hidden in the trunk of a car and 

helped ensure their broken down car was moved to a side street 

before transferring Aguilar into the Explorer, which prevented 

the victim from being seen at the gas station. When Aguilar was 

conducted to the Explorer, Martinez parked the Explorer behind 

the other car to obscure it from view, and Aguilar was covered 

with a blanket. Finally, Aguilar’s body was burned, an attempt 

to cover up the kidnapping, the robbery, and the murder itself. 

¶68 These facts support the jury’s finding that Aguilar 

was murdered to allow Martinez to keep the stolen property and 

avoid capture. See Ellison, 213 Ariz. at 143, ¶¶ 124-25, 140 

P.3d at 926 (record indicated that the defendant’s “motive for 

the murders was to facilitate the burglary” where the defendant 

went to the victims’ house with the intent to burglarize it, 

knew the area and the victims, and did not conceal identity). 

 
35 

2 

¶69 Under A.R.S. § 13-703(F)(6), a first degree murder is 

aggravated when “[t]he defendant committed the offense in an 

especially heinous, cruel or depraved manner.” “The ‘heinous, 

cruel, or depraved’ aggravator is written in the disjunctive and 

the state need prove only one of the three conditions to trigger 

application of the aggravating circumstance.” Grell, 212 Ariz. 

at 519 n.2, ¶ 8, 135 P.3d at 699 n.2. Accordingly, “[a] finding 

of cruelty alone is sufficient to establish the F.6 aggravator.” 

Morris, 215 Ariz. at 341, ¶ 80, 160 P.3d at 220. 

¶70 “Cruelty involves the pain and distress visited upon 

the victims” and “may be found when the victim consciously 

experienced physical or mental pain prior to death, and the 

defendant knew or should have known that suffering would occur.” 

Anderson II, 210 Ariz. at 352 n.18, ¶ 109, 111 P.3d at 394 n.18 

(quotation marks, substitution, and citations omitted). 

Substantial evidence supports the jury’s conclusion that the 

killing was “especially cruel.” Martinez was a major 

participant in beating, kidnapping, and slaying Aguilar. 

Indeed, he pulled the trigger for the shot that ultimately 

killed Aguilar. 

¶71 The State conclusively established that Martinez’s 

ongoing physical violence against Aguilar caused Aguilar mental 
36 

anguish that Martinez knew or should have known would have 

occurred. Ellison, 213 Ariz. at 142, ¶¶ 120-21, 140 P.3d at 925 

(mental anguish shown when victims “experienced significant 

uncertainty as to [their] ultimate fate”) (citation omitted). 

Because the jury heard overwhelming evidence that the slaying 

was especially cruel, we need not examine “whether the jury 

abused its discretion in finding that the murders were also 

heinous or depraved.” Morris, 215 Ariz. at 341, ¶ 80, 160 P.3d 

at 220. 

¶72 Martinez also argues that the (F)(6) aggravator is 

“inapplicable” because “[e]verything that was cruel was done by 

Mr. Summey-Montaño.” The record, however, is replete with 

evidence of Martinez’s cruelty and the superior court expressly 

instructed the jury not to impute Summey-Montaño’s conduct to 

Martinez. Id. at 215 Ariz. at 337, ¶ 55, 160 P.3d at 216 

(“Jurors are presumed to follow the judge’s instructions.”).

3 

¶73 At the penalty phase, Martinez focused on claims of 

family problems, including parental inattention. He also argued 

the more lenient sentences given to Lopez, Bedoy, and SummeyMontaño were mitigating circumstances and that Summey-Montaño 

was more culpable. Martinez further pointed to the availability 

of a life sentence, his age, family ties and remorse, his 
37 

impaired intelligence, and impairment from the use of drugs and 

alcohol. 

¶74 On appeal, however, Martinez focuses almost entirely 

on his contention that the evidence presented to the jury showed 

that the victim had committed “contributory conduct” and that 

Martinez, because he claimed to have been abused as a child, 

could not control himself when he was informed of Aguilar’s 

alleged molestation of Summey-Montaño’s cousin. 

¶75 Martinez’s attack on the victim’s supposed conduct is 

not a compelling mitigating factor. Moreover, much of 

Martinez’s argument is not supported by the record. The very 

foundation of the claim — that Martinez was himself sexually 

abused — was undermined by the absence of any evidence that 

Martinez himself claimed abuse until his life depended on it. 

The remainder of his mitigation evidence was unfocused and 

largely rebutted by the State. The jury did not abuse its 

discretion in finding this evidence not sufficiently substantial 

to call for leniency. 

O 

¶76 The jury also convicted Martinez of kidnapping. See

A.R.S. § 13-1304(A)(3) (2001). It found that the offense was 

dangerous and involved the intentional or knowing infliction of 

serious physical injury. See A.R.S. § 13-604(I) (Supp. 2003). 
38 

¶77 At sentencing, the trial court found aggravating 

circumstances, including the presence of accomplices, Martinez’s 

criminal history, his use of drugs and alcohol, and “all factors 

found by the jury that were considered by the jury as 

aggravating factors including, but not limited to the pecuniary 

gain” aggravator. The court sentenced Martinez to an aggravated 

term of twenty years, to be served consecutively to his death 

sentence. Martinez did not object to the trial judge, rather 

than the jury, finding factors to justify an aggravated 

sentence. 

¶78 In Blakely v. Washington, the Supreme Court held that, 

generally, any fact that increased a defendant’s sentence beyond 

a “statutory maximum” must be proved to the jury beyond a 

reasonable doubt. 542 U.S. 296, 301-05 (2004). Martinez now 

claims his aggravated sentence for kidnapping was error. 

¶79 Because Martinez did not object, we review this claim 

for fundamental error and require that the “defendant . . . 

establish . . . that fundamental error exists and that the error 

in his case caused him prejudice.” Henderson, 210 Ariz. at 567, 

¶¶ 19-20, 115 P.3d at 607 (citation omitted). 

¶80 The State argues that no reasonable jury could fail to 

find the aggravators the court identified. We agree. It was 

uncontested that the kidnapping involved accomplices, a 
39 

statutory aggravating factor. A.R.S. § 13-702(C)(4) (Supp. 

2003). Likewise, overwhelming evidence demonstrates that 

Martinez and his cohorts restrained Aguilar, took jewelry from 

him, and took him to his home where other property was taken 

from him. A.R.S. § 13-702(C)(6). On this record, the trial 

court did not commit fundamental error in aggravating Martinez’s 

sentence for kidnapping. 

III 

¶81 Martinez raises seventeen issues to avoid preclusion 

for federal review. They are presented as in his opening brief: 

1. The reasonable doubt instruction of State v. Portillo, 

182 Ariz. 592, 898 P.2d 970 (1995), dilutes and shifts 

the burden of proof in violation of the Sixth 

Amendment to the United States Constitution. Rejected 

in Ellison, 213 Ariz. at 133, ¶ 63, 140 P.3d at 916. 

2. The (F)(5) pecuniary gain aggravator is 

unconstitutionally overbroad and fails to narrow in 

violation of Arave v. Creech, 507 U.S. 463 (1993), and 

the Eighth Amendment to the United States 

Constitution. Rejected in State v. Greenway, 170 

Ariz. 155, 163, 823 P.2d 22, 30 (1991). 

3. The (F)(6) cruel, heinous and depraved aggravator is 

unconstitutionally vague and overbroad because the 
40 

jury does not have enough experience or guidance to 

determine when the aggravator is met. The finding of 

this aggravator by a jury violates the Eighth and 

Fourteenth Amendments to the United States 

Constitution because it does not sufficiently place 

limits on the discretion of the sentencing body, the 

jury, which has no narrowing constructions to draw 

from and give substance to the otherwise facially 

vague law. Rejected in State v. Cromwell, 211 Ariz. 

181, 188-90, ¶¶ 40-45, 119 P.3d 448, 455-57 (2005). 

4. Arizona’s death penalty statute creates an 

unconstitutional presumption of death and 

impermissibly shifts to him the burden of proving that 

mitigation is sufficiently substantial to call for 

leniency in violation the Eighth and Fourteenth 

Amendments to the United States Constitution and 

Article 2, Section 15, of the Arizona Constitution. 

Rejected in Baldwin, 211 Ariz. at 471-72, ¶¶ 9-17, 123 

P.3d 665-66. 

5. The death penalty is cruel and unusual under any 

circumstances and violates the Eighth and Fourteenth 

Amendments to the United States Constitution and 

Article 2, Section 15, of the Arizona Constitution. 
41 

Rejected in Gregg v. Georgia, 428 U.S. 153, 186-87 

(1976); State v. Harrod, 200 Ariz. 309, 320, ¶ 59, 26 

P.3d 492, 503 (2001), judgment vacated on other 

grounds by Harrod v. Arizona, 536 U.S. 953 (2002). 

6. Execution by lethal injection is cruel and unusual 

punishment in violation of the Eighth and Fourteenth 

Amendments to the United States Constitution and 

Article 2, Section 15, of the Arizona Constitution. 

Rejected in State v. Van Adams, 194 Ariz. 408, 422, ¶ 

55, 984 P.2d 16, 30 (1999). 

7. The prosecutor’s discretion to seek the death penalty 

has no standards and therefore violates the Eighth and 

Fourteenth Amendments to the United States 

Constitution and Article 2, Sections 1, 4, and 15, of 

the Arizona Constitution. Rejected in State v. 

Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d 1118, 1132 

(2001), judgment vacated on other grounds by Sansing 

v. Arizona, 536 U.S. 954 (2002). 

8. Proportionality review serves to identify which cases 

are above the norm of first degree murder, thus 

narrowing the class of defendants who are eligible for 

the death penalty. The absence of proportionality 

review of death sentences by Arizona courts denies 
42 

capital defendants due process of law and equal 

protection and amounts to cruel and unusual punishment 

in violation of the Fifth, Eighth, and Fourteenth 

Amendments to the United States Constitution and 

Article 2, Section 15, of the Arizona Constitution. 

Rejected in State v. Gulbrandson, 184 Ariz. 46, 73, 

906 P.2d 579, 606 (1995). 

9. Arizona’s capital sentencing scheme is 

unconstitutional because it does not require the state 

to prove the death penalty is appropriate or require 

the jury to find beyond a reasonable doubt that the 

aggravating circumstances outweigh the accumulated 

mitigating circumstances. Instead, Arizona’s death 

penalty statute requires defendants to prove their 

lives should be spared, in violation of the Fifth, 

Eighth, and Fourteenth Amendments to the United States 

Constitution and Article 2, Section 15, of the Arizona 

Constitution. Rejected in State v. Fulminante, 161 

Ariz. 237, 258, 778 P.2d 602, 623 (1988). 

10. Section 13-703 provides no objective standards to 

guide the sentencer in weighing the aggravating and 

mitigating circumstances in violation of the Eighth 

and Fourteenth Amendments to the United States 
43 

Constitution and Article 2, Section 15, of the Arizona 

Constitution. Rejected in State v. Pandeli (Pandeli 

I), 200 Ariz. 365, 382, ¶ 90, 26 P.3d 1136, 1153 

(2001), judgment vacated on other grounds by Pandeli 

v. Arizona, 536 U.S. 953 (2002). 

11. Arizona’s death penalty scheme is unconstitutional 

because it does not require the sentencer to find 

beyond a reasonable doubt that the aggravating 

circumstances outweigh the accumulated mitigating 

circumstances in violation of the Eighth and 

Fourteenth Amendments to the United States 

Constitution and Article 2, Section 15, of the Arizona 

Constitution. Rejected in State v. Poyson, 198 Ariz. 

70, 83, ¶ 59, 7 P.3d 79, 92 (2000). 

12. Arizona’s death penalty scheme does not sufficiently 

channel the sentencing jury’s discretion. Aggravating 

circumstances should narrow the class of persons 

eligible for the death penalty and reasonably justify 

the imposition of a harsher penalty. Section 13-

703.01 is unconstitutional because it provides no 

objective standards to guide the jury in weighing the 

aggravating and mitigating circumstances. The broad 

scope of Arizona’s aggravating factors encompasses 
44 

nearly anyone involved in a murder, in violation of 

the Eighth and Fourteenth Amendments to the United 

States Constitution and Article 2, Section 15, of the 

Arizona Constitution. Rejected in Pandeli I, 200 

Ariz. at 382, ¶ 90, 26 P.3d at 1153. 

13. The fact-finder in capital cases must be able to 

consider all relevant mitigating evidence in deciding 

whether to give the death penalty. Woodson v. North 

Carolina, 428 U.S. 280, 303-04 (1976). The trial 

court’s failure to allow the jury to consider and give 

effect to all mitigating evidence in this case by 

limiting its consideration to that proven by a 

preponderance of the evidence is unconstitutional 

under the Eighth and Fourteenth Amendments to the 

United States Constitution and Article 2, Section 15, 

of the Arizona Constitution. Rejected in McGill, 213 

Ariz. at 161, ¶ 59, 140 P.3d at 944. 

14. By allowing victim impact evidence at the penalty 

phase of the trial, the trial court violated 

Defendant’s constitutional rights under the Fifth, 

Sixth, Eighth, and Fourteenth Amendments to the United 

States Constitution and Article 2, Sections 1, 4, 13, 

15, 23, and 24 of the Arizona Constitution. Rejected 
45 

in Lynn v. Reinstein, 205 Ariz. 186, 191, ¶¶ 15-17, 68 

P.3d 412, 417 (2003). 

15. The trial court improperly omitted from the penalty 

phase jury instructions language to the effect that 

the jury may consider mercy or sympathy in deciding 

the value to assign the mitigation evidence, instead 

telling the jury to assign whatever value it deemed 

appropriate. The court also instructed the jury that 

it must not be influenced by mere sympathy or by 

prejudice in determining these facts, thus limiting 

the mitigation the jury could consider in violation of 

the Fifth, Sixth, Eighth, and Fourteenth Amendments to 

the United States Constitution and Article 2, Sections 

1, 4, 13, 15, 23, and 24 of the Arizona Constitution. 

Rejected in State v. Carreon, 210 Ariz. 54, 70-71, ¶¶ 

83-87, 107 P.3d 900, 916-17 (2005). 

16. The death penalty is an irreversible denial of human 

rights and international law. Rejected in State v. 

Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67 (1983). 

17. Consecutive sentences for the felony murder conviction 

and the underlying felony of kidnapping violate A.R.S. 

§ 13-116 (2001) and the double jeopardy clause of the 

Fifth Amendment to the United States Constitution. 
46 

Rejected in State v. Girdler, 138 Ariz. 482, 489, 675 

P.2d 1301, 1308 (1983) (holding that consecutive 

punishments for felony murder and predicate felony do 

not violate double jeopardy). 

IV 

¶82 For the forgoing reasons, we affirm Martinez’s 

convictions and sentences. 

 _______________________________________

 Michael D. Ryan, Justice

CONCURRING:

_______________________________________

Ruth V. McGregor, Chief Justice

_______________________________________

Rebecca White Berch, Vice Chief Justice

_______________________________________

Andrew D. Hurwitz, Justice

_______________________________________

W. Scott Bales, Justice