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Jury deliberates in 2010 Kearns shooting

Published April 4, 2013 6:28 pm

Courts • Prosecutors say Joshua James Montoya meant to murder, but defense attorneys say it was self-defense.
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The fate of a 29-year-old Kearns man accused of gunning down a man who he said threatened him rests with an eight person jury after prosecutors and defense attorneys presented their closing arguments Thursday afternoon.

Joshua James Montoya, who said he acted in self-defense in the 2010 shooting, could spend the rest of his life behind bars if the jury finds him guilty of the charges against him: first-degree felony murder and second-degree felony obstruction of justice.

Both sides told the jury Thursday to look to science as well as eyewitness testimony in reaching their decision. But each side said the testimony proved opposite narratives:

According to prosecutors, Montoya walked out of his home, near 5700 South and 4600 West, intending to kill Amos Pacheco on March 5, 2010. He had a gun in his pocket as he walked past his children, who Pacheco had come to drop off along with their mother, and picked a fight with the 25-year-old man.

Pacheco, who was dating the mother of Montoya's three children at the time, was seated inside his girlfriend's car. He was tired, prosecutors said, he didn't feel well, he meant no harm.

"The defendant came out of the house, went around the car, picked an argument with Amos then took out a gun," prosecutor Chou Chou Collins said. "When you shoot someone at that close range, the intent is clear."

But defense attorneys said Montoya neither owned a gun nor knew Pacheco would be outside his home that day. Several witnesses testified that no one told him he was accompanying the children's mother, Ana Torres, to the house.

"There was no paraphernalia associated with a gun found in [Montoya's] house," defense attorney Isaac McDougall said. "And yet, we're supposed to believe that [Montoya] knows they're coming, goes out with a gun in front of his father, his uncle, his cousin, who could all be in danger, past his three small children and his ex-wife and just shoots someone? In broad daylight?"

Defense attorneys said Montoya was angry when he saw Pacheco because Pacheco had been making threats for months, saying he was going to shoot Montoya in front of family members, friends and mutual acquaintances.

When Montoya saw Pacheco pull out something metal, his fears were confirmed, they said.

As both men wrestled for the gun, defense attorneys said, a shot rang out.

"That doesn't show an intent to kill," McDougall said. "That's an accident. You're allowed to protect yourself with an appropriate amount of force if you're in fear for your life. Josh was in fear for his life."

Torres was on the phone with police when Pacheco was shot. She testified Monday that she was standing right next to the men and could see Montoya draw the weapon and shoot.

But defense attorneys questioned why no bang was audible on the 911 recordings if she was so near the .357 Magnum revolver — a big, loud gun. They called Torres a "liar."

"This poor girl, who watched her boyfriend killed by her kids' dad, who was brave enough to testify here — to call her a liar is totally offensive," Collins said.

After Montoya realized he had shot Pacheco, he testified Wednesday, he ran. He told the jury he was afraid of retaliation, that Pacheco had gang ties.

This instinct to run, the prosecution said, proves his guilt.

The defense countered that running proves his fear, and therefore, his innocence.

Both sides pointed to forensic evidence to prove their case: Montoya's DNA was found on the weapon though Pacheco's was not; but a medical examiner testified the shooting happened at an indeterminable range — which can indicate a struggle took place.

The jury began deliberations just before 4 p.m. Thursday.


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