Death Penalty Case Asks: Was Killer A Psychopath Or Avenger?

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Perhaps Cody James Martinez is a brutal psychopath, who murdered a supposed friend for a CD, two bucks and a gold chain.

Then again, maybe he's the mentally retarded, drug-addicted victim of childhood sexual abuse driven to inflict revenge on a man he thought was a child molester.

In any case, Johnathan Summey-Montano told exactly the wrong person about the molestation of his nephew by Francisco "Cisco" Aguilar, a conversation that led to Aguilar's murder on June 12, 2003. The case will be the subject of complex legal arguments before the state's highest court which will meet Tuesday in the Payson High School auditorium.

As it turned out, the mentally retarded Martinez had himself been molested repeatedly as a child, which laid the foundation for a life of drugs, petty crime and street-tough impulse. In the midst of a three-day drug and alcohol binge, Montano 's revelation led to a brutal murder of the alleged child molester -- and a death sentence for Martinez, court documents say.

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Members of the Supreme Court are Andrew Hurwitz, Rebecca Berch, Ruth McGregory, Michael Ryan and Scott Bales as they appeared when they held court in Snowflake.

At the Tucson trial, prosecutors presented the killing as a kidnapping and robbery by a psychopathic semi-gang banger, committed for money with the cruelty necessary to earn the death penalty. By contrast, the defense portrayed events as the surrender to rage by a dysfunctional man, triggered by a compulsion to seek revenge on a child molester.

That contrast in stories and motivations lies at the heart of the appeal of Martinez 's death sentence that attorneys on both sides will argue Tuesday in Payson, part of the Arizona Supreme Court's effort to take justice on the road to educate the public as to how the legal system works.

The tragedy of Martinez 's life and the violence of Aguilar's death emerges even in the legal pleadings.

Court documents describe a violent chain of events which started on a June morning in Tucson, when Montano showed up at a house where Martinez and some friends were drinking and smoking pot.

Montano took Martinez aside and explained that Aguilar, known to his friends as Aguilar, had a "big mouth" and allegedly had molested his 12-year old nephew. The prosecution's version of events minimizes the child abuse allegation and stressed the elements of theft. The defense version suggests that revenge was the motivation.

Aguilar showed up a short time later. After some small talk, Martinez confronted Aguilar about the alleged molestation. Aguilarbrushed it off, saying he didn't know how old the cousin was. Enraged by the seeming confirmation, Martinez started hitting Aguilar.

Martinez and Montano with help from one other man proceed to tape Aguilar's feet together and tie his hands with a cell phone charger cord. Even then, Martinez beat the helpless Aguilar with the butt of the shotgun.

They stripped Aguilar of some jewelry and $2, wrapped him in the sheet and stuffed him in the trunk of one man's car. They drove to Aguilar's house and stole some liquor, an 18-pack of beer, a CD and a computer printer. Those thefts prompted the prosecution to argue that the murder was motivated by money, one element that would qualify it for the death penalty.

When the car wouldn't start, they called yet another friend -- to provide a Ford Explorer, in which the group drove Aguilar to a spot in the desert known as the "shooting range." On they way they taunted him and at one point Montano stabbed him in the hand, according to court testimony.

Once they arrived in the desert, they dragged Aguilar from the car and resumed beating him. As Aguilar begged for his life, Martinez told him to shut up and shot into the dirt above his head. Prosecutors said he missed on purpose to terrify Aguilar in arguing the murder was cruel enough to qualify for the death penalty.

Montano in the meantime beat Aguilaro with a tire iron and stabbed him superficially in the stomach. Martinez fired a second shot, which hit Aguilar near the collarbone, then tried to get Montano to finish him off. When Montano refused, Martinez fired a final shot to Aguilar's neck -- which the coroner later concluded was the shot that killed him.

The group then piled palm fronds and trash on top of the body and set it on fire, hoping to destroy any possible fingerprint evidence, according to testimony.

But the fire attracted the attention of a Tucson Airport Authority police officer, who stopped them as they sped away. They told her that they were trying to get to a barbecue at "Aguilar's house," since they knew another guy named Aguilar who lived in the area. Later, the prosecutor presented this as a cruel joke, which was another element in the appeal of the death penalty sentence.

The officer detained them until fire crews reached the scene and found the body.

Later, prosecutors offered plea deals to everyone except Martinez . Montano got 25 years to life, the others got lesser terms. Only Martinez ended up facing the death penalty. Prosecutors didn't require Montano to testify as part of the plea deal, another element in the Martinez 's appeal.

The arguments on appeal go to the way in which prosecutors allegedly misstated or manipulated the evidence to suggest Martinez committed the murder for money and inflicted "depraved" cruelty and suffering.

The prosecution introduced incriminating evidence from Martinez 's childhood and teenage years, most of which the appeals attorneys have challenged as inadmissible.

Those records indicate that Martinez 's mother put beer in his baby bottle, failed to protect him from abuse, allowed him to use drugs as a child and used drugs herself. His stepfather's brother allegedly sexually abused him -- along with another man who sometimes served as a baby sitter.

Martinez allegedly set a fire at his school, although the police dropped the charges for lack of evidence. Prosecutors later combined this incident with his chronic bedwetting to suggest that he had the hallmarks of being "psychopathic."

Martinez had repeated run-ins with the law as a teenager. His record included frequent petty crimes, repeated failures in various placements and treatment programs and descriptions by probation officers as "aggressive, violent and incorrigible."

A court-appointed psychologist examined Martinez and reported that he scored in the mentally retarded range, although he was highly functional for a person with an IQ of 66. The psychologist concluded he had "very severe problems with ...psychological adjustment" and harbored "prejudice" against child molesters.

Although Martinez did not testify at his own trial, at the "mitigation" hearing before the jury's deliberations on the death penalty he said he was "deeply ashamed" of having murdered Aguilar for "no reason." He said he'd been awake for three days and was "sky high and crazy off drugs." He said he and Montano never intended to kill or rob Aguilar, only to beat him -- but that he had simply lost control. Moreover, Martinez said he could not even remember the murder itself.

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