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

_______________
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

2

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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

3

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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

4

¶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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

5 

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. 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

6

¶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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

7

¶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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

8 

¶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” 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

9 

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. 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

10 

§ 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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

11

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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

12 

¶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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

13

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

14 

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

15 

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. 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

16 

¶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. 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

17 

(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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

18

¶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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

19 

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

20

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?
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

21

□ 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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

22

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

23

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).
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

24 

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— 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

25

[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.)
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

26

¶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?
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

27

[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?
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

28

[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. 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

29

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

30

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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

31 

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

32

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. 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

33

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

34

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. 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

35

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

36 

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

37

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.
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

38

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

39 

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

40

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

41

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

42

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

43

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

44

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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

45

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).
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

46 

¶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 
STATE V. CHRISTOPHER MICHAEL MONTOYA

Opinion of the Court

47

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.