A man accused of killing a 16-year old high school student in 2001 may not have intended to kill the girl but is still responsible for first-degree murder, a prosecutor told jurors.

"I'm telling you he didn't try to kill Tanee Natividad," Deputy Pima County Attorney Mark Diebolt said in his opening statements Tuesday in the trial of Max Montijo LaMadrid, 36.

But whether he intended to kill her doesn't matter, Diebolt said. Under the law, he's still responsible.

Natividad was shot in the head and died in November 2001. She was with her boyfriend at a fast-food drive-thru shortly after 2 a.m. when two groups started fighting in the parking lot. Shots were fired and one man was killed.

In retaliation, Diebolt said, LaMadrid shot at vehicles fleeing the scene on Speedway. He mistakenly thought the people he was trying to shoot were in the car driven by Natividad's boyfriend, the prosecutor said. One bullet crashed through the rear window of the boyfriend's car, hitting the Palo Verde High School student in the head.

"Tanee Natividad was truly an innocent victim in this incident," Diebolt told the jury in Pima County Superior Court Judge Howard Hantman's courtroom.

LaMadrid's attorney, Dan Cooper, didn't dispute that his client fired the weapon. But, Cooper said, there's no evidence it was a bullet from LaMadrid's gun that killed Natividad. He said casings from as many as eight guns were found at and around the crime scene.

"The bullet that lodged in Tanee's head could not be matched to any casing," Cooper told jurors.

He also told jurors that Natividad's boyfriend changed his story repeatedly when police questioned him. Cooper also said police ignored evidence pointing to other suspects. "Max LaMadrid did not kill Tanee. He is not guilty," Cooper said.

This is the third time LaMadrid has been tried in the case. Jurors could not reach unanimous verdicts in two previous trials.

Contact reporter Patrick McNamara at 573-4241 or pmcnamara@azstarnet.com