State v. Martinez, CR-05-0507-AP.

CourtSupreme Court of Arizona
Citation189 P.3d 348,218 Ariz. 421
Docket NumberNo. CR-05-0507-AP.,CR-05-0507-AP.
PartiesSTATE of Arizona, Appellee, v. Cody James MARTINEZ, Appellant.
Decision Date25 July 2008
189 P.3d 348
218 Ariz. 421
STATE of Arizona, Appellee,
Cody James MARTINEZ, Appellant.
No. CR-05-0507-AP.
Supreme Court of Arizona, En Banc.
July 25, 2008.

[189 P.3d 351]

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, Lacey Alexandra Stover Gard, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Law Offices Of Williamson & Young P.C. by S. Jonathan Young, Tucson, Attorneys for Cody James Martinez.


RYAN, Justice.


¶ 1 On June 12, 2003, twenty-one-year-old Cody James Martinez, fifteen-year-old Michael Lopez, and several other adolescents were at a friend's Tucson home smoking marijuana. Johnathon Summey-Montaño

189 P.3d 352

arrived with Francisco Aguilar. Aguilar was sent out with two others to purchase rolling papers for the group.

¶ 2 Summey-Montaño described Aguilar to Martinez as a "baller" (meaning he had money) and suggested that they rob him. Martinez agreed. When Aguilar returned to the house, Martinez first engaged him in a conversation and then punched him in the face. Martinez and Summey-Montaño began beating Aguilar, while other members of the group went outside. Martinez and Summey-Montaño called Aguilar a child molester.2 Martinez directed Lopez to join in kicking Aguilar, threatening to kill Lopez if he did not do so. Summey-Montaño pointed a shotgun at Aguilar. Martinez took the shotgun and hit Aguilar in the head with it. Martinez and Summey-Montaño then bound Aguilar's hands and feet. Aguilar was crying and begging for an explanation for the beating. Martinez and Summey-Montaño took valuables from Aguilar: Summey-Montaño put on Aguilar's necklace and took two dollars from one of Aguilar's shoes; Martinez put Aguilar's gold bracelet in his own pocket.

¶ 3 Lopez and Summey-Montaño then forced Aguilar into the trunk of a car. Martinez, Lopez, Summey-Montaño, and at least one other person got into the car. Martinez drove and Summey-Montaño gave directions to Aguilar's home. When they arrived, Martinez instructed one of the others to watch for Aguilar's family. Martinez and Summey-Montaño entered the house and returned with beer and liquor. Apparently dissatisfied with the haul, Martinez demanded that Aguilar tell him "where's the stuff; where's the shit?" — a reference to "drugs, money, or whatever." Martinez returned to the house and came back with a computer printer.3

¶ 4 When they tried to leave, Martinez could not start the car. The group pushed the car, with Aguilar still in the trunk, to a nearby gas station. They put gas in the car but it still did not start. The group pushed it to a nearby pay telephone and sat there. Aguilar remained in the trunk.

¶ 5 Later, an acquaintance arrived at the gas station. Martinez spoke to this person and showed him a bag of methamphetamine. The acquaintance used Aguilar's mobile telephone to call Fernando Bedoy, who arrived in a Ford Explorer. Using the Explorer, Martinez and the others pushed their vehicle to a side street. The car still would not start.

¶ 6 Summey-Montaño and Martinez then led Aguilar from the trunk of the car to the cargo space of the Explorer, keeping him covered with a blanket. Martinez poked Aguilar with a shotgun when Aguilar did not crawl into the Explorer fast enough.

¶ 7 Martinez, Bedoy, Lopez, and Summey-Montaño got into the Explorer, leaving the rest of the group behind. Bedoy drove. After some discussion between Summey-Montaño and Martinez, Martinez directed Bedoy to the desert. Martinez announced he intended to kill Aguilar and anyone who tried to stop him.

¶ 8 As Bedoy drove, Martinez and the others were laughing and taunting Aguilar. Summey-Montaño stabbed Aguilar in the hand with a knife and hit him with a compact disc he claimed to have stolen from Aguilar. He also mocked Aguilar, asking him to name his favorite track on the disc.

¶ 9 When the group arrived at the desert area, Summey-Montaño pulled Aguilar out of the Explorer. Martinez and Summey-Montaño kicked Aguilar. Aguilar was dragged around the truck, making "noises of pain . . . moaning and groaning." Martinez, Summey-Montaño, and Lopez continued kicking and stomping on Aguilar, while Aguilar begged for his life. Martinez demanded he shut up and ordered Aguilar to march into the desert at gunpoint and then to lie down.

189 P.3d 353

¶ 10 Martinez fired a shot at Aguilar that went "[r]ight above his head," although Martinez stood directly above the victim. Martinez laughed about having missed. As Martinez reloaded the shotgun, Summey-Montaño beat Aguilar with a tire iron and stabbed him in the belly. Martinez fired again, this time hitting Aguilar in the collarbone area, "[a] little lower than the neck," but not killing him. Summey-Montaño refused Martinez's request that he finish off Aguilar, so Martinez fired one more time, hitting Aguilar in the neck, killing him.

¶ 11 Martinez and Summey-Montaño ordered Lopez and Bedoy to wipe out the footprints they had left. Trash was piled on Aguilar's body and Martinez lit the pile on fire. The group returned to the Explorer and drove away.

¶ 12 Moments later, a Tucson Airport Authority police officer on patrol noticed smoke in the distance and the Explorer driving from that direction and initiated a traffic stop. As the police cruiser and the Explorer crossed paths, Martinez hid cocaine and methamphetamine in the vehicle in which he was travelling. He told the group to tell police they were coming from a barbeque at "Cisco's." He told the officer who stopped the Explorer the same. Police detained the group. Tucson firefighters, meanwhile, responded to the blaze and reported that a body had been found. After the body was discovered, Martinez was taken into custody and, incident to that arrest, was searched. Jewelry and marijuana were found in Martinez's possession. Liquor, drugs, and the shotgun were also found in the Explorer.


¶ 13 In the fall of 2005, a jury found Martinez guilty of premeditated first degree murder, felony murder, and kidnapping. The sentencing proceedings followed, and at the aggravation phase, the jury unanimously found that Martinez murdered Aguilar for pecuniary gain and committed the slaying in an especially cruel, heinous, and depraved manner. See Ariz.Rev.Stat. ("A.R.S.") section 13-703(F)(5), (F)(6) (Supp.2003). At the penalty phase, Martinez put on evidence that he had had a terrible childhood, that he had been molested as a child, and that those circumstances led him to murder Aguilar. The jury concluded that the mitigation evidence was not sufficiently substantial to call for leniency, determining that Martinez should be sentenced to death.

¶ 14 An automatic notice of appeal and an appeal from post-trial rulings4 were filed with this Court under Arizona Rules of Criminal Procedure 26.15 and 31.2(b) and A.R.S. §§ 13-4031, -4033 (2001). We have jurisdiction under the Arizona Constitution, Article 6, Section 5(3), and A.R.S. §§ 13-4031, -4033.


¶ 15 Martinez first argues that prosecutorial misconduct warrants a new trial. This Court will reverse a conviction for prosecutorial misconduct only when "(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial." State v. Velazquez, 216 Ariz. 300, 311, ¶ 45, 166 P.3d 91, 102 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2078, 170 L.Ed.2d 811 (2008) (quoting State v. Anderson (Anderson II), 210 Ariz. 327, 340, ¶ 45, 111 P.3d 369, 382 (2005)). Martinez did not object below to any of the prosecution's allegedly improper statements. Absent a trial objection, we review claims of prosecutorial misconduct for fundamental error. Id. at ¶ 47.

¶ 16 Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (citation omitted). "To prevail under this standard of review, a defendant must establish both that fundamental

189 P.3d 354

error exists and that the error in his case caused him prejudice." Id. at ¶ 20 (citation omitted).


¶ 17 When the police stopped the Explorer, Martinez and his companions told investigators that they had been at a barbeque at "Cisco's."5 The jury heard that this cover story came from Martinez. In closing arguments at the aggravation phase, the prosecution told jurors that Martinez provided his friends "a sickening excuse to offer up to the police officers — we were at Cisco's barbecue — so he cannot be connected with this crime."

¶ 18 Martinez claims that the prosecutor knew, based on a series of free talks between the State and other defendants, as well as an interview of Martinez, that the alibi, although a fabrication, was not a "joke" about burning Aguilar because the reference was to another "Cisco."

¶ 19 A prosecutor is entitled to make arguments supported by the record. State v. Hughes, 193 Ariz. 72, 85, ¶ 59, 969 P.2d 1184, 1197 (1998). The prosecutor's comment about the alibi was a suggestion that Martinez's reference to "Cisco" could not credibly be called a coincidence. The police interviews and free talks emphasized by Martinez on appeal do not rule out the possibility that Martinez did, in fact, intend the alibi to refer to the crime. The prosecutor's statement was neither false nor a mischaracterization. There was simply no misconduct in this instance.


¶ 20 Martinez makes several additional attempts to demonstrate prosecutorial misconduct, none of which warrant detailed discussion. He alleges that prosecutors falsely claimed that Martinez "joked" about missing his first shot at Aguilar, wrongly claimed that Martinez had been accused of committing arson at his elementary school, and fallaciously questioned the veracity of...

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