Murderer claims that he couldn’t rob a dead man

State high court declines to hear appeal of his 104-year sentence

Can you be convicted of robbing someone who is dead?

Joseph Emeterio Montoya, who has been convicted of murder and robbery, insists you can’t. The state courts disagree. The state Supreme Court has declined to hear Montoya’s case in which he was trying to get part of his 104½-year sentence overturned by arguing that his robbery charge was invalid because the person he robbed was already dead — because he killed him — and you can’t rob a dead person.

Montoya and Gary Esquibel killed Angel Arroyo, 32, in 2013 in Las Vegas, N.M.

Las Vegas police at the time said Arroyo was

fatally shot during an argument linked to their methamphetamine distribution in an apartment rented by Esquibel.

A few hours after the killing, Montoya returned to Arroyo’s body, stole cash from his pockets and set him and the apartment on fire.

He was convicted of numerous crimes, including murder and robbery stemming from his act of stealing the cash.

The robbery law in New Mexico says “robbery consists of theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.”

During Montoya’s trial, the jury was instructed to find him guilty —and it did — of robbery if jurors believed he used force to remove the cash from Arroyo’s pocket.

But Montoya appealed his original conviction on the charge arguing that “one cannot rob a corpse” and no force was required to remove the cash.

The Court of Appeals denied Montoya’s attempt, saying in an opinion written by Judge Jonathan B. Sutin that the robbery after Arroyo’s death and arson was “cleanup” to the earlier crimes and “therefore the second robbery can rationally be linked to the murder that enabled the robbery.” Montoya appealed again. Last month, the Supreme Court declined to hear the case.