Supreme Court Affirms Death Penalty In Case Argued In Payson

Justices order execution of a man allegedly sexually abused as a child who beat, bound and shot a man he said was a child molester

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The Arizona Supreme Court has upheld the death sentence of a man who said he bound, beat, robbed, shotgunned and set on fire a Tucson man, in part because he believed the murdered man was a child molester.

The high court had previously heard at a special session in Payson the arguments on both sides of the case of Cody James Martinez, whose lawyers argued that the jury didn't adequately consider Martinez's alleged history of childhood sexual abuse, drugs, alcohol and mental retardation.

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Chief Justice Ruth V. McGregor

Defense attorneys raised a host of issues, including the judge's allegedly flawed, coercive and prejudicial instructions, misleading arguments by prosecutors and a challenge of the state law that sharply limits the grounds on which the Supreme Court can overturn a jury's death sentence.

But the closely reasoned 46-page supreme court decision inexorably rejected each of the legal arguments detailed in court papers and argued earlier this year in a crowded Payson High School auditorium.

The high court found some mistakes by the trial court judge, but concluded none of those mistakes directly affected the outcome of the trial. Moreover, the justices held that the defense at trial had presented the still disputed evidence that Martinez was sexually abused as a child and killed Francisco Aguilar because he believed Aguilar had abused a friend's 11-year-old cousin, not for the CDs, jewelry and other small items Martinez and several friends stole from Aguilar's house and pockets before killing him and setting his body on the fire in the desert.

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Justice W. Scott Bales

Trial testimony laid out the facts of the brutal and senseless killing -- and demonstrated that the three or four other men who bound, beat and stabbed Aguilar before Martinez shot him twice all got much lighter sentences. Two testified against Martinez and one invoked his right not to incriminate himself to avoid testifying at Martinez's trial.

One argument the Supreme Court rejected was that prosecutors should have given that key accomplice immunity to testify at the trial, since he could have backed Martinez's claim that the real motive for the murder was revenge against a child molester.

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Justice Rebecca White Berch

The trial testimony indicated that in 2003 Martinez, then 21, and Jonathon Summey-Montano were smoking pot at a friend's house when Summey-Montano asked Martinez to help him kill and rob Aguilar, who Summey-Montano claimed had raped his 11-year-old cousin.

When Aguilar arrived, Martinez, Summey-Montano, a 15-year-old friend and one other man seized him, tied him up and beat him as he rolled on the ground crying and begging for an explanation for the attack. They took two dollars from his shoe, and a gold bracelet from his pocket, before loading him into the trunk of a car.

The four men then drove their victim over to Aguilar's house, where they stole beer and liquor then roughed up Aguilar to make him tell them where "the stuff" was hidden. They then went back into the house and took a computer printer and some CDs.

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Justice Andrew D. Hurwitz

When the car wouldn't start, they called a friend and transferred the terrified Aguilar to the back of a Ford Explorer, covering him with a blanket. They then drove him out into the desert, taunting, hitting and stabbing him as they drove.

In the desert, not far from the Tucson airport, Martinez fired a shot into the ground near Aguilar's head that wounded him. When Summey-Montano refused to finish him off, Martinez killed Aguilar with a shot to the neck. The men then piled debris on top of the body and set the pile on fire.

The smoke attracted the attention of security guards at the airport, who called police and intercepted the four men as they were leaving the area. Martinez said they had come back from a barbecue at "Cisco's house," which was Aguilar's nickname. After the prosecutor described this alibi as a cruel and insensitive joke, Aguilar argued he meant another friend named Cisco and argued that the prosecutor's comments were misleading and prejudicial. The supreme court rejected that claim.

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Justice Michael D. Ryan

But the Supreme Court, operating under a 2002 state law that limited the review of death sentences to fundamental legal errors, inexorably rejected every argument in the thick stack of legal briefs. In the one or two cases, the supreme court did fault the trial judge but then dismissed the mistakes as not central to the jury's conclusion.

Key points in the court's decision included:

-- A jury has to find that a murder was committed in the course of another felony, like kidnapping or that it was premeditated to impose the death penalty. The defense claimed that sticking Aguilar in the trunk didn't constitute kidnapping and so shouldn't trigger the felony murder rule. However, the court concluded that didn't matter since the prosecution did present plenty of evidence the murder was premeditated.

-- The defense argued that the judge used a jury instruction the supreme court had already rejected because it misstated the law. The high court agreed and once again banned use of that jury instruction, but decided its use did not affect the outcome of the case in this instance.

-- The defense argued it was unfair to execute Martinez when the three other men who had participated in the murder all got plea bargains and that prosecutors cut the deal in such a way that the man who set everything in motion didn't testify at all. But the Supreme Court said Summey-Montano had a right to invoke his Fifth Amendment right against self-incrimination.

-- The defense argued that the judge essentially declared a mistrial after receiving a note from the jury that it was deadlocked. But when he called the jurors, they said they would benefit from more time to deliberate -- so he sent them back in. The court ruled the judge acted properly

-- The defense argued that the judge improperly told the jury that if they didn't unanimously agree on the death penalty, he would have to sentence Martinez to life in prison. In fact, the judge would have to bring in a new jury to decide on the punishment. The Supreme Court agreed the judge misstated the law, but said the mistake didn't prejudice the jury against Martinez or affect the outcome.

-- The defense said Martinez never had a chance to adequately present the evidence he'd been sexually abused as a child and that this played a factor in his reaction to the claim that Aguilar was a child molester. Moreover, the defense objected to the second-hand nature of much of the testimony in the penalty phase, which brought before the jury problems Martinez had as a child and statements by the victim's mother, who actually gave him up for adoption as a baby. The court ruled that such "hearsay" evidence was all right in the penalty phase -- and much of it was introduced by the defense.

-- The defense asked the court to declare unconstitutional a 2002 state law that prevented the supreme court from reviewing the evidence in a murder trial and deciding whether the jury acted reasonably. In other kinds of criminal cases, appeals courts can decide that no reasonable jury could have voted for a conviction given the evidence. But now in death penalty cases, state law limits appeals courts to deciding whether the trial court abused its discretion in deciding that aggravating factors merited the death penalty. In the questioning during the session in Payson, the justices grappled with the irony that they could offer the least review in the most serious cases. However, in the opinion affirming the death sentence the court refused take issue with that law.

-- The law provided for the death penalty when a murder is committed for financial gain, but the defense argued that the thefts were incidental and not the reason for the killing. But the court ruled that the jury could reasonably conclude that the thefts were at least a contributing factor.

-- The law allows for the death penalty in the case of a murder that is especially "heinous, cruel or depraved." The defense objected that the prosecution hadn't proved this murder qualified. But the court ruled that a reasonable juror could conclude that the long imprisonment, taunts, stabbing, threats, and three different blasts of the shotgun qualified as especially cruel.

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