State v. Montoya

554 P.3d 473

STATE of Arizona, Appellee,

v.Christopher Michael MONTOYA, Appellant.

No. CR-22-0106-AP

Supreme Court of Arizona.

Filed August 15, 2024

Appeal from the Superior Court in Maricopa County, The Honorable Michael W. Kemp, Judge, No. CR2017-006253-001, AFFIRMED

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

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 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.

¶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

[1, 2] ¶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, 509 P.3d 1023, 1045 (2022) (quoting State v. Payne, 233 Ariz. 484, 511 ¶ 106, 314 P.3d 1239, 1266 (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, 160 P.3d 203, 214 (2007) (quoting State v. Anderson, 210 Ariz. 327, 340 ¶ 45, 111 P.3d 369, 382 (2005)). Accordingly, we address each assignment of error in turn.

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.

[3–5] ¶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, 279 P.2d 898 (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, 115 P.3d 601, 607 (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.

[6–10] ¶13 "However, raising one objection at trial does not preserve [a different] objection on appeal." State v. Long, 119 Ariz. 327, 328, 580 P.2d 1181, 1182 (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, 66 P.3d 50, 56 (2003). "[W]e wall consider a matter on appeal not raised below [only] if it is a matter of fundamental error." State v. Vickers, 129 Ariz. 506, 510, 633 P.2d 315, 319 (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, 425 P.3d 1078, 1085 (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.

[11, 12] ¶15 Prosecutors "are ordinarily given wide latitude in closing argument." State v. Leon, 190 Ariz. 159, 162, 945 P.2d 1290, 1293 (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, 272 P.3d 1027, 1042 (2012), but "it is improper to argue a non-alleged aggravating circumstance," State v. Nelson, 229 Ariz. 180, 189 ¶ 40, 273 P.3d 632, 641 (2012).

[13, 14] ¶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...