Arthur Fish Jr. died Saturday, Sept. 8, 2012 at 1:35PM from cancer.
He was 65 years old. A fourth generation Arizona native was
born Feb 17, 1947 in Phoenix to Harold Arthur and Clara Jane
(Wilkins) Fish. He married
Debora George on June 8, 1985 in the Mesa Arizona Temple of The
Church of Jesus Christ of Latter-day Saints.
Hal taught Spanish at Tolleson Union High School for 20+
years. He is survived by his
wife Debora, and 7 children: Porter David, Ellen Irene (James)
Eastin, Hyrum Thomas, Brigham Neal, Heber Allen, Parley Michael, and
Marian May Fish. The funeral
service will begin 10:30am Friday September 21, 2012 at the Sunburst
Ward Chapel of The Church of Jesus Christ of Latter-day Saints, 5250
W. Thunderbird Rd. in Glendale AZ where the viewingwill begin
9:00am. The interment will be
at 2:00pm in the City of Mesa Cemetery, 1212 N. Center Street in
Mesa, AZ. In lieu of flowers, donations may be made to: Fish
Children’s Fund at Desert Schools FCU PO Box 2942, Phx. AZ 85062
08/17/09: Cross Petition
< Click here for a copy of the
Cross Petition >
07/29/09: Attorney General Terry Goddard is pushing the case to the Supreme
< Click here for a copy of the
Petition for Review >
(What possible purpose does that serve? Let's keep this in
mind in future elections.)
07/21/09 12:00 Noon: Hal Fish was released and returned home with
< Harold Fish Released from Prison in Self-Defense Case >
07/13/09: Governor Jan Brewer
This makes the Castle
Doctrine law (SB1145)
retroactive enough to apply to
this case in the event of a retrial.
AM The Arizona State House PASSED
(52 to 4)!
06/22/09: The Arizona State Senate
(19 to 10) to make the 2006 law retroactive, which makes that law
applicable to this case. This is a critical bill for this case.
page at the Arizona State Legislature >
On 06/30/2009 Harold Fish's case was
AND REMANDED by the Court of Appeals, State of Arizona, Division 1.
30, 2009 . . . . . . . . . . .CR 06-0675 . . . . . . . State v. Fish
1. Did the superior court err in excluding evidence of specific
acts of violence by the victim when the defendant did not know of
those acts at the time of the shooting?
2. Did the superior court err in refusing defendant's offered
concerning what is an unlawful act as it related to the alleged victim's
conduct and defendant's self-defense claim?
3. Did the superior court err in not giving an instruction that the
who were allegedly charging the defendant and were under the victim's
custody might have constituted dangerous instruments as that related
to the self-defense claim?
4. Did the superior court err in not giving a lesser-included
of reckless manslaughter when defendant requested the court not to
give such an instruction, but the court gave an instruction on reckless
second degree murder?
Harold Fish was hiking
in Coconino County when a man with a violent history and his two dogs
attacked him. Mr. Fish fired a warning shot at the dogs to keep them
from attacking him. Grant Kuenzli then attacked Mr. Fish while
yelling death threats. Mr. Fish was forced to fire at Kuenzli, killing
him at point blank range.
What Mr. Fish did not know, and could not know, was the violent history of
Grant Kuenzli. A history, among many other facts of the case, that the judge and
prosecutor would not
allow in court for the jury to consider.
Since the attack on Harold Fish
took place, but before the trial, the
Arizona Legislature returned the law from "guilty until proven
innocent", back to "innocent until proven guilty" in self defense
Among the myriad of "mistakes" made by the judge
and prosecutor (and our fine education system), the judge would not allow the trial to take place under
the corrected law, nor did he educate the jury members on Jury
Nullification, a concept that our judicial system is founded upon which
addresses the rights and responsibilities of jury members as the final
check and balance on government as they vote with their conscience, in this case, that they are under
no obligation to find a man guilty of an unjust law.
The purpose of this site is
1. Raise money for Harold Fish to pay his
almost half million dollars in legal fees.
2. To make all available facts surrounding this
incident known, a privilege that the jury did not enjoy.
3. To bring to the public attention just one
instance of why we need to pay attention to whom we elect into the office,
in this case, those of Superior Court Judge, and County Prosecutor.
How did the state law originally
get corrupted that it needed repair by the current legislature?
Why are juries unaware of their responsibilities as jury members to judge
the law as well as the facts of the case?
What controls need to be put on a
judiciary branch that currently has no functional check and balance?
Residents of Arizona: As you read this ask yourself if you, for
exercising your God
given right to protect yourself, would like to:
be tried (railroaded) by a court
that is hell bent on a conviction at any cost,
be sent to prison for
over half a million dollars in legal fees,
never again be allowed to lawfully own a firearm to defend
yourself or your family, or other innocent people from armed attackers.
Is this a responsible use of the
heavy hand of government?
Residents of Coconino County:
You have some cleanup to do in the next few elections.
*** The motion for retrial also appears on
this page. ***
Here are many of the roles/personalities in this
The defendant / shooter: Harold Fish.
A retired school teacher. Father
of seven children.
The assailant / decedent: Grant Kuenzli
The Prosecutor: Mike Lessler,
The Judge: Mark Moran, Arizona Superior Court,
***I have excluded certain names to protect
their privacy. It appears like this: [rape
victim] [strangulation victim]
Melvin McDonald, Bar #002298
Skelton & Hochuli, P.L.C.
North Central Avenue, Suite 800
Phoenix, Arizona 85012
S. Griffen, Bar #005673
WATKINS & DIESEL, P.L.L.C.
North San Francisco, Suite 300
Flagstaff, Arizona 86001
Attorneys for Defendant
SUPERIOR COURT OF THE STATE OF ARIZONA
COUNTY OF COCONINO
FOR NEW TRIAL
to the Honorable Mark Moran)
COMES NOW Harold Fish, by and through his counsel
undersigned, and pursuant to Rule 24.1, Arizona Rules of Criminal
Procedure, moves for a new trial or, in the alternative, for judgment
notwithstanding the verdict. This
Motion is supported by the attached Memorandum of Points and Authorities.
Respectfully submitted this _____ day of _________, 2006.
SKELTON & HOCHULI, P.L.C.
WATKINS & DIESEL, P.L.L.C
MEMORANDUM OF POINTS AND AUTHORITIES
On June 14, 2006, after a two month trial, the jury in this case returned a verdict of guilty to the charge of murder, second degree, a class one felony. Because of both trial and pretrial rulings made by the Court, and prejudicial actions, policies and decisions implemented before the trial by the prosecutor, the defendant Fish did not receive a fair trial. For the reasons set forth hereafter, the Court should enter an order granting a new trial or, in the alternative, set aside the verdict and enter a finding of "not guilty."
I. BURDEN OF PROOF
During the course of the trial, the Arizona State Legislature changed Arizona law relating to
the burden of proof in self-defense
cases. The law was changed effective April 24, 2006 when Governor Napolitano signed the new legislation. The self-defense burden was restored to 1997 standards and self defense no longer became an
The defendant requested that the Court instruct the jury pursuant to the law that took effect on April 24, 2006. The Court denied that request. A petition for special action was taken to the Court of Appeals. Jurisdiction was rejected by a two to one vote, with the dissenting judge voting that jurisdiction should be accepted and that the burden of proof in State v. Fish should be shifted to the state. The defendant immediately filed a Petition for Review to the Arizona Supreme Court. It is the defendant's understanding that even though Justice Michael Ryan refused to extend the "stay," that the Supreme Court of Arizona will soon be considering issues raised with the Court of Appeals in State v. Fish since the issue is one of state-wide importance.
The defendant maintains it was error for this Court to give instructions which shifted the burden of proof to the defendant once the new law took effect on April 24, 2006. That "old law" jury instruction needlessly confused the jury, who were unable to know what burdens to attach to individual factual issues (i.e., was the burden of proof beyond a reasonable doubt on the state or the preponderance of the evidence on the defendant when weighing the testimony of the four campers? Was the burden of proof on the state to show decedent was not running towards Fish or was it on the defendant to show that he was?) In addition, the jury foreman indicated to counsel that had the new law been applied, defendant would have been found not guilty. Failure to instruct according to the new law was fundamental error and a new trial should be granted.
The defendant Fish incorporates by reference the original pleadings filed with this Court requesting that the new law be applied, together with the Petition for Special Action, the Response, the Reply, the Petition for Review, and the Amicus Brief, all of which have been previously provided to this court.
II. EXCLUSION OF REFERENCE TO THE SCREWDRIVER
The issue involving the screwdriver has been an issue fiercely debated for almost one and a half years beginning with the Motion for Remand on the original grand jury indictment and carrying forward to this trial. The defendant adamantly maintains that decedent Kuenzli was armed when he charged the defendant. A screwdriver could have killed or maimed Fish, creating deadly disfiguring injuries. The defendant maintains that the jury should at least have been allowed to consider that evidence and to give the screwdriver in the decedent's rear pocket whatever weight that they deemed appropriate.
This Court committed fundamental error when it allowed the prosecutor to argue to the jury that decedent Kuenzli was "unarmed" when, in fact, he was armed with a seven inch screwdriver concealed in his back pocket. The Court's ruling allowed the prosecutor to mislead and deceive the trial jury regarding the existence of this critical evidence. Grant Kuenzli was armed. The prosecutor’s claim that Kuenzli was unarmed was an egregious misstatement, and utterly false. The damage caused by that ruling was irreparable.
The Court had previously ruled that since defendant Fish did not see the screwdriver in decedent's rear pocket, the existence of the screwdriver could not be considered as justification for the shooting. However, the latitude granted to the prosecutor went far beyond this issue. The Court allowed the prosecutor to open the door, and disallowed the defense from presenting evidence refuting the claim that decedent was unarmed.
The importance of the screwdriver was not a fact lost on the state. If it was so insignificant, why did the state send the screwdriver to the state crime lab for forensic investigation and analysis? The Court's ruling took from the jury critical evidence which denied the jury any ability of determining what weight, if any, to give to the screwdriver. By allowing the State to deceive the jury into believing that decedent Kuenzli was unarmed, their verdict was predicated upon a misleading and deceptive state of facts.
This ruling denied to defendant Fish any ability to provide a "complete defense." It prevented him from showing the decedent's capability of inflicting serious physical injury. It created an environment where the jury falsely believed that Grant Kuenzli was unarmed, allowing the prosecutor to argue that one of the two combatants had a powerful 10 mm gun loaded with hollow point bullets while the other had nothing. Under the Court’s rationale, the State would have been allowed to deceive the grand jury into believing that the decedent was unarmed while carrying a loaded .45 caliber pistol concealed in his back pocket based solely upon the fact that the concealed loaded gun could not be seen by Mr. Fish.
The day after the jury verdict, the jury foreman contacted undersigned counsel expressing shock that the decedent was armed with a screwdriver. He indicated that the jury was not aware of that fact and opined that such information may have had a significant impact on their deliberations. The error was critical and fundamental. In support of this point, the defendant incorporates by reference all prior memoranda filed with the Court on the issue of the screwdriver, together with arguments made by the defense at the time of the Court's ruling, are incorporated with this motion by reference.
III. PROSECUTORIAL MISCONDUCT
Near the beginning of these proceedings, defendant moved to disqualify the Coconino County Attorney's Office from prosecuting this case because of prosecutorial misconduct directed against Detective Scott Feagan. At the time, it was alleged that the actions of Mike Lessler and Roberta McVickers, in seeking Scott Feagan's ouster as lead investigator and later pressing for criminal charges against Feagan, had created a chilling effect on the search for truth and constituted a grievous deviation of the prosecutor's responsibilities to do justice. The extent of this prosecutorial misconduct was unknown until May 24, 2006, the last day of trial. Detective Cornish admitted under oath the extent of the prosecutorial misconduct. Cornish first admitted that one of the primary investigative functions of the Coconino County Sheriff’s Department was to thoroughly investigate the history, background and characters of both the decedent and shooter in this confrontation. Detective Cornish testified:
Q. You agree, do you not, Detective Cornish, that in this investigation, the responsibility of law enforcement is to find whatever evidence is out there, whether it helps or hurts the prosecution?
Q. And that part of the investigative responsibility of an investigator would be to look at the evidence at the scene and investigate the history and background of the people involved?
On the final day of trial, Detective Cornish admitted that he had been instructed to deviate from this investigative standard by the Coconino County Attorney’s office and to specifically abstain from any investigative pursuit that would have reflect unfavorably on Grant Kuenzli. Having seen the heavy hand of the prosecutors in action with Detective Feagan, Detective Cornish had little choice. This directive from the prosecutor’s is contained in Detective Cornish’s trial testimony. After admitting that he had purposely failed to follow up on leads that could have led to damaging evidence against Kuenzli (and exculpatory information involving Harold Fish), he testified:
Q. In other words, for whatever reason, was it clear to you that information that may prove damaging to Grant
Kuenzli, you were directed not to go there and not to look for that type of information?
See State v. Minnitt,____Ariz. ____, 55 P. 3d 774 (2002); Pool v. Superior Court, 139 Ariz. 98, 677 P. 2d 261 (1984) where cases were dismissed with prejudice based upon prosecutorial misconduct. The prosecution has been guilty of misconduct under Rule 24(c)(2), Arizona Rules of Criminal Procedure. The memorandum previously cited in the defendant’s motion to disqualify the Coconino County Attorney’s office is incorporated by reference.
IV. FAILURE TO ADMIT TESTIMONY OF DR. STEVEN PITT ON DECEDENT'S MENTAL HEALTH HISTORY AND FAILURE TO ADMIT PSYCHIATRIC MENTAL HEALTH RECORDS
The Court committed fundamental error by excluding both the psychiatric records of Southwest Behavioral Health Center as evidence in the case, by precluding the defense from having access to the Banner Health Records following Grant Kuenzli's attempted suicide, and by precluding Dr. Steven Pitt from giving opinions based (in part) upon contents of the Southwest Behavior files, including opinions relating to:
1. Grant Kuenzli's post traumatic stress disorder,
2. Decedent's prior documented history of aggression and violence and how those earlier acts demonstrated to a reasonable medical probability that Harold Fish's life was in danger when Grant Kuenzli charged him on May 11, 2004.
3. The psychological impact that a traumatic event would have on any victim like Harold Fish when confronted with an unforeseen, terrifying series of events with no opportunity for reflection.
There is no factual dispute regarding the decedent's prior mental health history. Grant Kuenzli had been diagnosed as suffering from post traumatic stress disorder. The date before his death, he had consulted with a mental health advisor at Southwest Behavioral Health Center. The decedent had described his fears about living in the National Forest. This information was highly relevant to the jury's consideration of Mr. Kuenzli's mental stability and was directly related to the actual danger presented to Harold Fish by Grant
In the preceding two years, the decedent had attempted suicide not once, but twice. In earlier pretrial proceedings, Dr. Steven Pitt, who had evaluated decedent Kuenzli's psychiatric background, had opined on the serious threat that Kuenzli posed on the Pine Canyon Trail on May 11, 2004. Dr. Pitt felt that Grant Kuenzli, given his medical background, was a serious threat to Harold Fish as he charged him on May 11, 2004. By denying Steven Pitt's testimony both as to the psychiatric dangers about Grant Kuenzli and the physiological impact of Mr. Kuenzli's charge on the mental and emotional psyche of Harold Fish, the defendant was denied a fair trial.
The Court similarly erred by denying to defendant Fish any access to the Banner Health records. The defense is aware that decedent Kuenzli was admitted to Banner Health after an attempted suicide. The trial jury was entitled to know that the unbalanced, deranged man that Harold Fish encountered on the Pine Canyon Trail was an ongoing psychiatrically impaired patient. Dr. Pitt, having reviewed the affidavits of the ten character witnesses, was uniquely qualified to explain how the decedent's uncontrolled temper and aggressive behavior, particularly when it related to his dog, made him a unique danger on the Pine Canyon Trail on May 11, 2005. The Court instructed the jury that before deadly physical force was used, a defendant had to be facing actual or apparent deadly physical force. The jury was never able to find out how much danger Harold Fish confronted on the Pine Canyon Trail because the psychiatric opinions of Grant Kuenzli were excluded by the Court. This denied defendant Fish an opportunity of providing a complete defense and deprived him of the right to a fair trial. Because of this fundamental error, the Court should grant the motion for new trial.
The defense incorporates by reference all prior pleadings and oral argument relating to admissibility of the Southwest Behavior health records, requesting production of the Banner Health records, and multiple responses to the state's various motions in limine seeking to admit the testimony of Steven Pitt as a witness. The defense would similarly incorporate by reference, as part of this response, the pretrial testimony of Dr. Steven Pitt given before this court
V. FAILURE TO ADMIT SPECIFIC ACTS EVIDENCE FROM THE TEN "ANTI-KUENZLI" CHARACTER WITNESSES
The record before this Court is irrefutable regarding the troubled violent history of Grant Kuenzli. Witness after witness, in pretrial motions, and under oath, provided this Court with "specific act" evidence about the character for violence of Grant Kuenzli. The decedent raped and kidnapped
[Rape Victim], then threatened her son with death as well as her mother and sister while hold
[Rape Victim] and her son hostage in their home. The decedent, without any warning, assaulted and strangled
[strangulation victim] without provocation and without warning.
[strangulation victim]'s offense was simply delivering self help materials to
[Rape Victim]. The decedent was involved in numerous violent or aggressive encounters with former police officers Steve Corich, John Boylan, and Lynn Bray at Mesa Community College. They were so troubled by these actions that they contacted defense counsel after reading news accounts of Kuenzli's death. The decedent had two aggressive confrontations with Placido Garcia who, through affidavit, described his fears to the court. Stephanie Quincy was so terrified of the defendant because of bizarre and threatening behavior over the telephone that she would not meet with him face to face unless he had cleared court security. Judge Clayton Hamblin had a twenty minute encounter in his courtroom that so terrified him that he warned court staff to be beware of Kuenzli and to be cautious of him. The judge feared that the decedent might shoot him through a window connected to his courtroom. Ernie Encinas terminated the decedent from employment at the Gilbert Fire Marshall's office because of repeated violent outbursts with Mr. Encinas, with fellow employees, and with customers of the town. The fear of Kuenzli was so prevalent that the Fire Marshall changed all of their locks at all locations at the request of Kuenzli’s fellow employees because of fears that Mr. Kuenzli would return and inflict harm. A mere two weeks before his death, decedent charged Steve James with James observing the same spastic arm movements, the terrifying anger and verbiage, and the irrational behavior that was seen on May 11, 2004. These specific acts were critical to show, on occasion after occasion, that rational people could not reason with Grant Kuenzli, that he had character patterns of uncontrolled violent behavior, and that Kuenzli inflicted terror in the minds and hearts of each of these witnesses because of his unpredictable volatility and patterns of violence and aggression.
The state, throughout the trial, challenged the credibility of Harold Fish. They claimed that the verbal exchange between Fish and Kuenzli could not have taken place in the short time span between the confrontation of Kuenzli and his dogs to the moment of Kuenzli's death. The state challenged defendant Fish's estimate of time. They challenged the speed of the decedent's movement toward Fish. They challenged the alleged aggression of Hank and Sheba. They argued that the defendant was armed with too much fire power on May 11, 2004. They suggested that there were other options available rather than shooting Kuenzli. The central theme of the prosecutor's theory of the case was challenging, time and again, that Harold Fish was in genuine serious danger of imminent serious bodily injury or death.
The above witnesses were absolutely critical in enabling Harold Fish to provide a complete defense and to challenge the arguments and evidence suggesting that the defendant acted unreasonably when confronting the decedent. This evidence conclusively demonstrated that when Grant Kuenzli threatened to kill Fish, he meant what he said -- and his track record provided compelling evidence that he had the ability and lack of self control and discipline, to carry out these threats.
The Court knows beyond any doubt that Harold Fish confronted a potential killer on the trail that day. The specific facts provided to the Court have established beyond any rational doubt that Kuenzli was unafraid of rape of a terrified girlfriend, threats to death to small children, choking adults or charging complete strangers. The rules of society regarding his own dog did not apply to him.
In conversing with jurors after the verdict, they were shocked when learning about the specific information that had been withheld from them by the Court rulings. The jurors had the false impression that Grant Kuenzli may have had a temper but that this temper could never have resulted in him inflicting serious injury or death to defendant Fish. Kuenzli had used his hands as a weapon in the past, beating and strangling
The Court, by excluding this critical evidence, precluded defendant Fish from providing a complete defense. It similarly tied his hands by preventing him from meeting the evidentiary attacks of the state with specific evidence that proved that his life was in genuinely in danger when Kuenzli uttered his threat to kill and then charged Fish with his thrashing hands. The defense incorporates by reference all prior responses to the state's motion to exclude this specific evidence, together with the motions for reconsideration filed by the defense. Defendant Fish further incorporates the specific affidavits of the anti-Kuenzli character filed in earlier proceedings with this court.
VI. CHARACTER EVIDENCE OF HANK AND SHEEBA
The Court, by applying the same standard to the two humane society dogs that the Court applied to prior bad acts involving humans, committed fundamental error and denied defendant Fish a fair trial. A single incident will highlight the unfairness and misleading nature of the Court's prior rulings.
Early in the investigation, Sheriff's deputies learned of a violent incident involving two Gila County Sheriff's deputies with the Chow mix, Hank. They had gone to Hank's home to speak with a resident who was one of the custodians of Hank. While one detective was at the front door, Hank charged him from behind, biting at his buttocks. The startled deputy wheeled around, pulling his gun from his holster, and prepared to shoot Hank to death. At that moment, Hank's owner came around from the side of the house and engaged in a verbal sparring match with the two deputies. Because the two Gila County deputy sheriffs had only had seen Hank one time in their lives, they were unwilling to give opinions on the character of violence by Hank based upon that one experience. This critical evidence of the genuine dangers posed by Hank was banned by the court because of the unreasonably strict character rule applied to the dogs.
Will Ippolito, the next door neighbor, endured years of terror from Hank. Ippilito's incidents of terror caused by Hank were far more serious than that described by fire paramedic Mike Roggenstein, who had seen Hank chew on a chain link fence until his mouth and gums would bleed. Ippolito installed a six foot chain link fence around his front yard to protect his daughters from Hank. By excluding evidence of specific acts of violence by Hank, the jury did not appreciate the risk that Hank posed to Harold Fish on May 11, 2004.
During a pretrial interview the evening before Roggenstein testified, the defense learned that Roggenstein would not allow his daughter to leave their vehicle unless Hank was secured on a chain. Both Ippolito and Roggenstein carried weapons to protect themselves should Hank break free and attack them. There was no precedent for the Court's ruling limiting specific acts of violence, particularly to an animal. This ruling distorted the actual danger that Hank realistically presented to Harold Fish and consequently denied him a fair trial. All prior pleadings and arguments on this issue are incorporated by this reference.
VII. THE JURY CONSIDERED AND DISCUSSED INFORMATION AND EVIDENCE WHICH CONSTITUTED JURY MISCONDUCT
Rule 24.1 (c)(3)(i), Arizona Rules of Criminal Procedure, provides that the court shall order a new trial if there is evidence of jury misconduct. There are two instances of jury misconduct.
1. During the course of deliberations, the trial jury considered evidence of the drug Effexor that had been prescribed to a member of the jury. Rather than base their decision upon evidence presented in court, the juror described her own personal experiences with the drug. There was no conceivable justification for such discussions, and the jury considered the juror's own experiences in assessing the likely effect of the drug upon Grant Kuenzli. The juror's own comments on the reaction of the drug upon her own circumstances was highly prejudicial and constituted consideration of critical information outside of the record. The jury improperly considered the one juror's information/evidence on how the drug Kuenzli was taking affected her over the evidence presented in court.
2. The defense has learned that the jury knew that the "stay" granted by the Court of Appeals related to the "Burden of Proof" issues presented to the panel for Division 1. It is defense counsel's understanding that the jury agreed that they would acquit Harold Fish had the new law been applied to his case. Defendant believes that the juror's knowledge and discussion of the purposes and reasons for the stay were improper, and damaged defendant Fish's right to a fair trial.
There is a presumption of prejudice when extraneous issues become a part of the juror deliberations. See Dunn v. Maras,182 Ariz. 412, 897 P.2d 714 (App. 1995); Kirby v. Rosell, 133 Ariz. 42, 648 P.2d 1048 (App. 1982); State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982). Defendant requests an evidentiary hearing so that each juror, under oath, can be questioned on these two critical issues.
VIII. LESSER INCLUDED OFFENSE INSTRUCTION
Prior to closing argument, the State moved this Court to instruct the jury on the lesser included offense of manslaughter. Defendant objected on the grounds that the evidence did not support a theory that Mr. Fish acted recklessly when he shot Mr. Kuenzli. This Court denied the State's request and did not instruct on manslaughter. However, when instructing the jury, this Court included a recklessness instruction together with the instruction for Second Degree Murder.
Defendant's objection to the lesser included instruction of manslaughter was necessarily predicated on this Court not allowing any instruction regarding a theory of recklessness. It is Defendant's position that, once this Court instructed on recklessness, it was required to give manslaughter as a lesser included offense instruction. By instructing the jury that Defendant could be found guilty of second degree murder based on recklessness without allowing the jury to find Defendant's recklessness constituted manslaughter, this Court deprived Defendant of a fair trial in violation of the due process clauses of the United States and Arizona Constitutions.
As this Court is aware, Rule 23.3, Ariz.R.Crim.P., provides in part that "forms of verdicts shall be submitted to the jury for all offenses necessarily included in the offense charged . . ." (emphasis added); see also State v. Cruz, 189 Ariz. 29, 32, 938 P.2d 78, 81 (App. 1996), superseded by statute on other grounds as stated in State v. Sierra-Cervantes, 201 Ariz. 459, 37 P.3d 432 (App. 2001). The Comment to Rule 23.3 states that, "this rule permits the jury to find the defendant guilty of any offense necessarily included in the offense charged . . . a necessarily included offense is one where 'some of the elements of the crime charged themselves constitute a lesser crime.'" Moreover, "the rule places the responsibility for deciding what verdicts the jury may return on the court, restricting the jury to returning verdicts for which forms have been submitted to it." See Comment to Rule 23.3, Ariz.R.Crim.P. (emphasis added).
Additionally, Rule 13.2(c), Ariz.R.Crim.P., specifically provides that the indictment/information provides notice to the defendant that the trial will concern all necessarily included offenses as well as the offense specified. Both Rules 13.2(c) and 23.3 make it clear that the prosecutor and defendant are entitled to an instruction on any offense "for which there is evidentiary support and for which a verdict form is submitted to the jury." By instructing the jury on recklessness without instructing them on manslaughter, this Court unfairly prejudiced Defendant by essentially telling the jury that if they considered Mr. Fish to be reckless, they must find him guilty of Second Degree Murder.
"A charge that a defendant killed another person knowing that his conduct would cause death or serious physical injury necessarily includes an allegation that the defendant acted recklessly by being aware of and consciously disregarding a substantial and unjustifiable risk that his conduct could result in death." State v. Hurley, 197 Ariz. 400, 403, 4 P.3d 455, 458 (App. 2000)(citing A.R.S. s 13-105(9)(c), definition of "recklessly"). Once this Court decided to give the jury an instruction on "recklessly" it was required under Hurley and State v. Govan, 154 Ariz. 611, 615, 744 P.2d 712, 716 (App. 1987), to instruct the jury on manslaughter. This is true regardless of whether Defendant objected to the State's motion for the manslaughter instruction. Cruz, 189 Ariz. at 32, 938 P.2d at 81. Had this Court properly instructed the jury, it is highly likely on the facts of this case that the jury would have found Mr. Fish guilty only of manslaughter, instead of Second Degree Murder. This Court's failure to provide a manslaughter instruction once it gave a recklessness instruction constituted prejudicial, reversible error.
IX. ADDITIONAL INSTRUCTION ERROR
Over Defendant’s objection, the Court, at the State’s request, included within the
self-defense instruction language that Fish’s good faith belief was “immaterial”. Defendant submits, given the facts and circumstances of this case, such instruction was error. Instructing the jury that it was to consider all facts and circumstances, as an objective person, in determining self-defense, but at the same time removing honesty and sincerity from that equation, was erroneous and paradoxical.
Defendant also submitted instructions providing knowledge, to the jury, as to whether the conduct by Kuenzli was illegal (i.e., threatening and intimidating, assault, endangerment, etc.) The Court declined to provide any such instruction to the jury. It is clear, from some of the juror questions generated during deliberation, (i.e., the desire for the definition of “attack”) that this was an important factual concept to the jury.
The Court also failed to include, in the final instructions, the agreed instruction on “motive”. Defendant understands this was oversight by the Court and staff. Similarly, it was oversight by the prosecution and defense not to catch the error (oversight also resulted in several other instructions being initially omitted… but the parties recognized the error and corrected the same in time). This error was not intentionally or knowingly waived by the Defendant.
X. THE VERDICT IS CONTRARY TO THE EVIDENCE
Despite the damaging rulings restricting evidence otherwise relevant for juror consideration, the verdict rendered by the jury is contrary to the evidence. The defendant clearly established his burden of proving by a preponderance of the evidence that his split second decisions were reasonable given the existence of the aggressive behavior of both the dogs and the decedent. The defendant would urge the Court after considering his overwhelming evidence of self defense to order either a new trial or to render a judgment notwithstanding the verdict.
submitted this _____ day of _________, 2006.
SKELTON & HOCHULI, P.L.C.
North Central Avenue, Suite 800
Phoenix, Arizona 85012
WATKINS & DIESEL, P.L.L.C
North San Francisco, Suite 300
Flagstaff, Arizona 86001
COPY of the
this ___ day of
June, 2006, to:
Judge of the
200 North San
110 E. Cherry