Kuenzli ended his life with one aggressive confrontation too many. This
time, instead of menacing his girlfriend or other defenseless individuals,
Kuenzli attacked a man who could and did defend himself. The tragedy of
Kuenzli’s death is equaled only by the imprisonment of Harold Fish, a
retired school teacher with a wife and seven children. Despite the
State’s successful effort to paint Fish as a trigger happy gun nut, the
fact remains that the loss of life for one and freedom for the other was
caused by Kuenzli and not by Fish.
was Painted as a Gun Nut
State asserts that Fish “had more than 50 guns and added a couple of
guns to his collection each year”. [Ans. Br. 1]. Debora Fish, however,
testified only that “over 50” guns “may have come and gone over the
course of [her 22-year] marriage” to Fish. Harold did not collect
semiautomatic or automatic guns. [R.T. 5/23/06, 110]. The Fish couple did
attend a “pistol class” at Gun Sight a “prime gun school in the
state”; but not a prime “semi-automatic” gun school. [
, 107; Ans. Br. 1].
State also emphasizes that “targets” were found in Fish’s van,
parked more than one mile away, with “bullet holes” in them. Several
types of bullets including .22 caliber, .22 caliber magnum, .380 and 10 mm
were found in the van. [Ans. Br. 15-16]. Although the bullets from the van
were not connected to the case and did not constitute “other act”
evidence (Rule 404(b)) they did hit their intended target at trial, Harold
Time of Shooting Most Likely Occurred at 6:30 p.m. According to
Fish and the Campers
State contends that Ashley Gross “unequivocally” recalled that shots
were fired at “5:30 p.m. – not 6:30”. [Ans. Br. 4, n. 1]. In fact,
she admitted that she did not carry a watch. [R.T. 4/21/06, 21]. She is
not even sure that she had a cell phone with her, and didn’t recall
using it or looking at it. [
21-22]. Nor did she recall
looking at a clock in the vehicle. [Id, 61-70]. During trial, Ms.
Gross conceded that she could not recall when she heard the shots. [Id,
28-36]. Ms. Gross testified that she and Dannie Goodwin left on the first
of two trips to Strawberry at 5:40 p.m. after the shots were fired
(presumably by Fish). She admitted, however, that both she and Ms. Goodwin
gave time estimates based upon the position of the sun. [
129]. Each trip to Strawberry consumed about 45-minutes to one hour. [
22-23 (Gross), 146 (Baretta), 198 (
Gross signed an affidavit prior to trial, stating that the campers arrived
at their campsite at 4:00 p.m. [Ex. 200]. At trial, she confirmed that the
affidavit was “correct”. [R.T. 4/21/06, 21, 41]. Ms. Goodwin confirmed
that the group of friends arrived at the campsite between 4:00 – 4:30
p.m. and heard shots some time before 6:30 p.m. [
78-79]. Ashley Gross also recalled that the sun was “starting to set”
on the way back from Strawberry during the first trip to get propane. [
24, ln. 1]. The sunset occurred at 7:18 p.m. [Ans. Br. 4, n. 2]. In order
for the campers to witness the sunset on the way back to the campsite, the
first trip must have begun at 6:30 p.m., rather than 5:30 p.m. Ashley
Gross admitted that the “sun was gone” during the second trip to town,
but there was a “little bit of light” in the sky. [
85]. On the way back to the campsite after the first trip, Ms. Goodwin saw
a man and a vehicle on the side of the road, which was Mr. Fish and Chet
Dieringer. They conducted the On-Star call to authorities from 6:47 p.m.
until 7:30 p.m. [Ans. Br. n. 3]. The sighting by Ms. Goodwin confirms that
the first trip could not have occurred between 5:30 – 6:30 p.m.
State’s assertion that the shooting by Fish occurred at 5:30 as
“unequivocal” and a “virtual certainty”, based upon the testimony
of the campers, is pure nonsense. [Ans. Br. 3-5 and n. 1]. The most
reliable conclusions about time that can be gleaned from their testimony
is that the shooting occurred at about 6:30 p.m. To be sure, twilight may
exist after sunset; but the sun dropped below the horizon at 7:18 p.m.,
which marked the end of the campers’ first 45-minute trip to Strawberry.
State briefly summarizes the removal of the dogs,
and Maggie, from Kuenzli’s car. [Ans. Br. 17]. The State leaves out the
fact that both Deputy Deloria and Sgt. Ramos viewed the dogs before Animal
Control Officer Jack Roberts arrived and concluded that
was then aggressive and dangerous. She bared her teeth, the hair was
raised on her back, and she would have bit them. [R.T. 5/5/06, 53-54 (Deloria)
and 5/9/06, 88-90 (Ramos)]. Deputy Shouse, former animal control officer,
explained that “fear biters” (such as
) may appear meek and mild, but go into attack mode when they sense that
something is wrong. [R.T. 5/11/06, 134-35]. Fish “was afraid” of the
74 (Officer Vlieg)].
Fish’s fear of the dogs was explained, at least in part, by the
fact that only a few short weeks before the attack by Kuenzli, Fish’s
oldest daughter, Ellen, was attacked by a neighbor’s dog. Ellen turned
and ran from the neighbor’s dog after it barked at her. The dog chased
Ellen and bit her at least three times. Fish learned from his daughter’s
experience that one must face the attacking dog, rather than running away.
[G.J., 163-64, Ex. 309 (Appx. 10)]. Ellen Fish recounted that her father
told her never to run away from a pursuing dog. [R.T. 5/18/06, 150].
facts are construed in favor of the State on appeal but they should not be
misconstrued. The State claims that Fish called his wife, Debora, on the
night of the shooting between 9:00 and 10:00 p.m. and expressed “concern
over the possibility of a civil suit”. [Ans. Br. 12-13]. In fact, Mrs.
Fish testified that the “civil suit was my concern, to Detective Feagan,
not my husband’s concern to me.” [R.T. 5/23/06, 143, ln. 18-19]. Fish
actually reported that he was concerned “about all the stuff that was
going on”. [
ln. 9-10]. Debora Fish, not Harold Fish, expressed concern about a civil
suit only after Detective Feagan told her that he thought Fish may have
acted in self-defense [Id. 150 - 153], but the trial court did not
allow the jury to hear the explanation.
is true that Fish told Det. Feagan that he thought he would get home at
7:30, 8:00 p.m. [Ex. 305, 12]. However, on the same page of the interview
transcript, Fish told Feagan that he “topped out” of
at 6:30 p.m. [
]. Fish was simply wrong about when he would get home.
State has managed to similarly skew other portions of Fish’s tape –
recorded statement. [Ex. 305]. Fish did describe the crazy look in
Kuenzli’s eyes as he was running toward Fish [Ex. 305, 32] like a
“freight train”. Although he did say that “his life has just gone in
the crapper” [Ans. Br. 21] the State leaves out that he also added that
“[Kuenzli’s life] is in the crapper” as well. Contrary to the
State’s assertions, Fish was remorseful and did what he could to “help
save [Kuenzli’s] life”. [Ex. 305, 51-52].
Selby, U.S. Forest Service, did NOT paint a picture of Fish as calm and
calculated, giving a rehearsed statement. [Ans. Br. 9 – 10]. Selby
testified that Fish was “very cooperative” and quite “sincere”. [R.T.
4/25/06, 191-94]. Selby described Fish as “calm to a point”,
“shaking a little bit”, “his voice was cracking, skipping a little
bit”, and he “kept talking over and over about what took place”. [Id,
191]. Selby concluded that Fish “was trying to keep it together by
195]. Fish was talking in an effort to vent or release emotion. [
Fish was not evasive and did not try to hide anything. [
Mr. Fish was asked to give Sgt. Ramos only a “brief rundown of
what had occurred.” [R.T. 5/9/06, 49]. While
Fish did not repeat
to Sgt. Ramos that he tried to call for help immediately after the
shooting. [Ans. Br. 12, lns. 4-5]; Fish did previously tell Officer Selby
that “he didn’t get cell phone service” and, as a result, “went
out to the road” where he eventually “flagged a vehicle down”. [R.T.
4/25/06, 200 (Officer Selby)]. We know that the vehicle Fish was able to
“flag down” was operated by Chet Dieringer [
8-9], who confirmed the lack of cell phone service in the area. Mr.
Dieringer therefore initiated an “On-Star” call at 6:47 p.m. [
12-14; Ex. 104-05 (tape and transcript)].
Sgt. Ramos described Fish, sitting handcuffed on the tailgate of
Officer Selby’s pickup truck, quite differently than the State presents
his testimony [Ans. Br. 10]. The “very best word” to describe Fish,
according to Sgt. Ramos, was “isolated”. Ramos explained “there was
a lot going through his mind.” [R.T. 5/9/06, 48]. Fish “seemed
appropriately upset for the situation that had occurred as described to me
by Officer Selby.” [
]. “There seemed to be a level of remorsefulness about him…” [
According to the statement by Fish given to Sgt. Ramos, documented
by notes and a written report, Kuenzli did not yell “Don’t shoot” to
Instead, Kuenzli yelled that he would kill Fish for shooting his dogs.
Fish, in response, told Kuenzli that he did not shoot his dogs and ordered
Kuenzli to stop. Kuenzli refused. [
69]. Fish yelled stop or he would be forced to shoot. [
, 70-71]. Fish was in “fear for his life because the person running at
him was saying, I’m going to kill you, you son of a bitch”. [
The State’s description of Fish’s contact with Det. Feagan is
similarly misleading. [Ans. Br. 13]. Fish, according to Feagan, was
“somewhat depressed, that’s my terminology, frustrated, just he was
really down on himself.” [R.T. 5/11/06, 188]. Feagan described Fish as
“down, deep breathing, he was having a hard time with what happened to
In the end, Fish repeatedly stated that he shot Kuenzli, because he
believed Kuenzli intended to kill him and because Kuenzli (and his dogs)
purposefully put Fish in legitimate fear for his life. Kuenzli acted out
of irrational but intense anger. Fish acted out of reasonable, but intense
Mr. Fish is Entitled to a New Trial
Specific Acts of Kuenzli’s Prior Conduct Should Have Been
The “prior acts” of Kuenzli were crucial to establish that
Kuenzli was the “initial aggressor” and to present a “complete
justification defense” – especially…
given that Fish had the burden of proving “self-defense”.
The critical “corroboration” of Fish’s claim that he believed
Kuenzli intended to kill him was kept from the jury, because of
(1) an arbitrary limitation on the type of character evidence an
Arizona jury can consider and (2) the trial court’s misunderstanding of
the relevance of Kuenzli’s “state of mind” at the time he attacked
Fish. [M.E. 2/7/06; I.R. 121; Appx. 12]. If Kuenzli’s intent or motive
was truly only to rescue his dogs, then Fish’s use of force was
excessive. If, on the other hand, Kuenzli intended to kill Fish, Fish’s
use of force was necessary. Kuenzli’s state of mind and intent is
critical in judging the reasonableness of Fish’s conduct. Kuenzli’s
pattern of specific, similar violent and aggressive acts over several
years confirmed that Fish’s split-second assessment of Kuenzli was
correct. [R.T. 12/12/05, 102-135].
The rationale behind the “propensity” rule is not lack of
relevance, but rather that the probative value of this evidence might be
outweighed by unfair prejudice. See
M. Udall & J. Livermore, Arizona Practice: Law of Evidence §83
at 170 (3d ed. 1991); Delozier v. Evans, 158 Ariz. 490 (App. 1988);
Michelson v. United States, 335
469, 475-76 (1948) (discussing Fed. R. Evid. 404).
The rationale behind the exceptions to the propensity rule is that
fundamental fairness requires that the fact finder be provided with the
most complete and informed picture of the incident in question while still
protecting the rights of the accused.
Fed. R. Evid. 404 Advisory Committee’s Note.
The Rule 405(b) Limitation on Specific Act Character
Evidence is Arbitrary and Violates Fish’s Right to
Due Process and to Present a Complete Defense
This arbitrary limitation on character evidence denied Fish his
constitutional right to present a complete defense because the specific
act evidence of Kuenzli’s propensity for violence had unique and
substantial probative value which would have helped the jury identify the
first aggressor. Commonwealth
v. Adjutant, 824 N. E. 2d 1, 8 (
2005); State v. Griffen,
406 P.2d 397, 400 (1965); People
v. Lynch, 470 N.E.2d 1018, 1020 (
1984). The probative evidence
of past acts was necessary after the State opened the door by claiming
that Kuenzli was only coming down the trail to rescue his dogs. State
v. Tyler, 149
312, 314 (App. 1986). They would also have corroborated Fish’s version
of the incident. Adjutant, 824 N.E. 2d at 9.
Lynch, 1470 N.E.2d at 1020.
The Trial Court Erred in Not Allowing Fish to Introduce Specific
Character Evidence Under the Rule 404(b)Exception
Separate from Rule 404(a) and 405 character evidence, used to
establish propensity, Kuenzli‘s prior acts of violence and aggression
should also have been admissible under Rule 404(b) to establish motive and
intent. [Ans. Br. 36]. Rule
404(b) allows specific act evidence to be introduced to prove matters
other than propensity, especially when the specific act evidence is the
most probative evidence available on the issue.
Specific act evidence in a self-defense case should be treated no
differently than any other evidence of prior bad acts which, although not
generally admissible for character purposes, is admissible for the purpose
of showing motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or particular way of doing an
act or particular skill. Udall
§84 at 182-88; State v. Cook, 150
470 (1986) (prior acts admissible to corroborate witness testimony); State
v. Castaneda, 150
382 (1986) (prior acts admissible to rebut claim of opposing party).
The Specific Act Evidence was More Probative Than Prejudicial
The trial court failed to recognize that the concern about
prejudice was of much lesser importance because the prior acts were of the
alleged victim and not the accused. State
v. Superior Court (Roper), 172
232, 236 (App. 1992). The sound discretion of trial judge can be utilized
to exclude marginally relevant or grossly prejudicial acts. Limiting
instructions can mitigate the potential dangers of prejudice and focus the
jury’s attention on the proper scope of specific act evidence.
Fish was Denied his Right to Present his Complete
evidentiary rule which precludes specific act evidence is arbitrary and
excludes important defense evidence without serving any legitimate
interest where the victim’s acts rather than those of the accused are at
issue. As a result, due process is implicated. See Holmes v. S.
319, 325, 328 (2006). Roper,
at 236; State v. Riggs, 189
327, 330 (1997).
The Jury was Misled to Believe Kuenzli was “Unarmed”
The Court granted the State’s motion, finding that Fish did not
know that Kuenzli had the screwdriver in his back pocket at the time of
the shooting, and that, therefore, the existence of the screwdriver was
not relevant to Fish’s mental state or the defense of self defense.
[R.T. 3/30/06 M.E., I.R. 200; Appx. 12]. The court also concluded
that the “existence of the screwdriver is not relevant to the victim’s
motivation or intention”. [Id].
Yet, evidence need only have
any tendency to make an inference of fact more likely than not.
Hawkins v. Allstate, 152
490 733 P.2d 1073 (1987).
The State fails to address the decision in U.S. v. Lavendar,
224 F.3d 939, 941 (9th Cir. 2000) where the court concluded
“there is no doubt that a screwdriver can be used to stab someone in the
throat or chest or to gouge out someone’s eye causing serious bodily
injury. It was therefore
properly characterized by the district court as a dangerous weapon.”
Finally, the State cites no authority for its position that (1) the
screwdriver was, as a matter of law, not a dangerous weapon or instrument
and more importantly that (2) the State could deceive the jury by telling
them that Kuenzli was “unarmed” when both parties and the court knew
that was not true.
Most important, the issues of whether the screwdriver was a deadly
weapon or a dangerous instrument are factual questions for the jury to
determine. See State v.
Pena, 209 Ariz. 503, 506 (App. 2005); State v. Schaffer, 202
Ariz. 592, 595 (App. 2002); State
v. Caldera, 141 Ariz. 634, 637 (1984);
State v. Bustamante, 122 Ariz. 105, 107 (1979); State
v. Moss, 119
4, 9 (1978) (In a case involving a pair of scissors, the Arizona Supreme
Court held “… if a
weapon’s deadly character depends on the manner and circumstances of its
use, it is for the jury to determine if it is a deadly weapon.”).
The parties should have been allowed to argue (1) whether Kuenzli
concealed the screwdriver on his person prior to the attack; (2) whether
Kuenzli came to harm Fish or simply to retrieve his dogs; and (3) whether
the screwdriver was, under the circumstances in this case, a deadly weapon
or dangerous instrument.
Mental Health Records Should Have Been Fully Disclosed
The Court’s ruling was at odds with the well established
principle that a defendant is “entitled to the benefit of any reasonable
opportunity to prepare his defense,” State v. Tyler, 149
312, 314 (App. 1986), particularly self-defense. State v.
338, 340 (1984).
The State fails to address State v. Griffen, 99 Ariz. 43
(1965), where the Arizona Supreme Court concluded that the trial court had
improperly excluded character evidence of the deceased for violence and
aggression while intoxicated even though the defendant was unaware of such
The trial court’s ruling regarding the medical records was itself
at odds with the court’s ruling that opinion and reputation evidence of
Kuenzli’s violent and aggressive history was relevant “on the issue of
who was the initial aggressor in the confrontation and because it
corroborates the defendant’s perception of the danger he faced that
day.” [I.R. 121, 6]. Nevertheless,
the court precluded Fish from obtaining the mental health records of
Kuenzli after reviewing them in camera. [I.R. 52; Appx. 12].
Mr. Fish requests that this Court review the sealed records to determine
whether they should have been disclosed.
If a trial court excludes evidence which precludes a defendant from
presenting a theory of defense, the trial court’s decision results in a
denial of the defendant’s rights to due process that is not harmless. Application
of Gault, 387
1 (1967); Oshrin v. Coulter, 142
109 (1984). Mr. Fish’s due process rights overcome the statutory
physician/patient privilege. Roper, 172
at 239; Gould, 212
The facts of this case are similar to those in Roper in many
significant ways. In both
cases, the defendants alleged that they acted reasonably when using force
and only did so in self-defense; in both cases, the alleged victims were
mental patients who the defendants alleged were manifesting their violent
personalities when they attacked the defendants; and in both cases there
was a long and well documented history of violence and psychotic behavior
by the alleged victims. Roper at 237.
The State relies exclusively on this court’s decision in State
v. Connor, 215
553, 557 (2007), where the victim, an intellectually and emotionally
challenged young man, was found dead inside his apartment. An autopsy
revealed that the victim had been stabbed or cut at least 84 times. Unlike
Fish, the defendant in Connor fled after killing the victim. When
questioned by the police, unlike Fish, the defendant lied to the police
about being at the victim’s apartment or knowing anything about the
Unlike in Roper or in this case, the defendant in Connor
offered no evidence that the victim had a history of prior acts of
violence and aggression which could help establish that he was the initial
aggressor. Yet, even the Connor court noted that: behavior that
results from mental illness when appropriate medication is not taken would
qualify as “a pertinent trait of character offered by the accused,”
and thus be admissible pursuant to Ariz. Rules of Evidence 404(a)(2). Connor
The records should have been disclosed because they would have
contained evidence of Kuenzli’s violent and aggressive character. The
records would have disclosed what psychiatric medication Kuenzli should
have been taking at the time he attacked Fish.
Subsequent Acts of the Dogs Should Not Have Been Admitted
allowed opinion and reputation evidence up to 90 days after the incident
occurred. [I.R. 200; Appx.
12]. The State fails to cite
authority for its position that there is a “logical relationship between
the dogs’ character at the time of the shooting and up to 90 days after
the shooting” [Ans. Br. 63] and it fails to address the cases that hold
character evidence subsequent to the date of the incident is only
admissible when there is a logical relationship between the later act and
an earlier state of mind. See
v. Watson, 894 F.2d 1345 (D.C. Cir. 1990) and cases in Op. Br. 43.
State v. Tuell, 112
340, 344-45 (1975).
State elicited substantial testimony about several specific acts.
[Ans. Br. 62-64], through Ms.
Brogden [R.T. 5/5/06, 121] and Ms. Dupont. [R.T. 5/11/06, 116-118].
or Flight” Syndrome Testimony Should Have Been
Pitt possessed specialized knowledge beyond the experience or education of
jurors about the unique physical and psychological effects severe trauma
has on the mind and body. [R.T. 12/12/05, 17-24]. Dr. Pitt would have
explained the interaction of an increased heart rate, complex motor skill
deterioration, auditory exclusion, visual impairment and the loss of depth
perception, increased respiration, increased blood pressure, loss of bowel
and bladder function, sympathetic nervous system disruption, memory loss,
and cognitive processing deficits. [I.R. 249; R.T. 4/24/06, 15-22]. His
testimony would have included a discussion of adrenaline, cortizol,
aldosterone, and other hormones. Dr. Pitt would have explained
“vasoconstriction and vasodilatation” and how increased and decreased
blood flows affect muscle strength and speed, which was particularly
important because the State argued that Fish should have stepped aside or
shot to wound, rather than stand his ground and defend himself with a gun.
studies show that high levels of stress dramatically affect an
individual’s sensory perception and physical performance…expert
testimony can be crucial in effectively presenting a defense of
justification or excuse…objective, scientific evidence can provide
illuminating insight into the factors that affected the defendant’s
conduct and may be invaluable in accurately assessing whether such conduct
was reasonable under the law.
DuCharme, The Search for Reasonableness in Use-of-Force Cases: Understanding
the Effects of Stress on Perception and Performance 70 Fordham L.Rev.
2515, 2551 (2002). Also see Fuentes v. Thomas, 107 F. Supp. 2d
1288, 1291 (D.Kan. 2000), discussed by DuCharme, supra, at 2554-57 (without [Dr. Lewinski’s testimony, the jury]
would have had no way to understand…Thomas’ perceptions and
recollections of events could have been distorted under the circumstances
of the shooting). Scientific studies, including the Artwohl study:
…show that individuals in dangerous situations are likely to
experience dramatic perceptual distortions that will directly affect their
ability to see, hear, and comprehend environmental stimuli….perceptual
distortions can offer a compelling explanation of seemingly irrational or
supra, at 2558.
self-defense standard in
(a reasonable person in defendant’s shoes) generally follows the Model
Penal Code. Heller, Beyond the Reas. Man?, 26 Am J. Crim. Law 1, 25
and n. 272 (1988). The “reasonableness” of self-defense must be judged
from the defendant’s “perception” of the event.
conclude that “fear and stress are emotions experienced by all of
mankind and are not distinctly related to technical or specialized
knowledge” is not only erroneous, it fails to appreciate objective,
scientific evidence that would have been helpful to a jury. [M.E. 5/11/06;
I.R. 299, 3; Appx. 12, citing Braley v. State, 741 P.2d 1061 (
Braley, the defendant went into his house after a confrontation in
an urban setting, loaded his rifle, and returned to the scene of the
confrontation. He then fired a shot into the air and, after the victim
asked whether or not he would shoot him, the appellant did so. He then
walked up to the victim and said “get up, you’re not shot.” He then
approached his wife and told her that they needed to get their stories
together. He called the police, but lied about the event. All participants
in the parking lot dispute were intoxicated.
In this case, Fish’s contact with Kuenzli and the two dogs drastically
differs from the drunken parking lot confrontation discussed in Braley.
State’s Answering Brief relies almost exclusively on Braley and
the Arizona case of State v. Salazar, 182 Ariz. 604, 610 (App.
1995). As the court noted in Salazar, however, there was no
evidence that the defendant fired his weapon because he feared being
disarmed. Although Salazar noted that expert testimony regarding
the use of force in self-defense as reasonable is “generally” not the
proper subject of expert testimony, the opinion proffered in Fish’s case
‘fight or flight’ response [is] state-of-mind evidence, analogous to
battered spouse syndrome testimony that has been approved many times…We
conclude that the psychologist testimony could have been permitted to
testify about the ‘fight or flight’ response if the trial court
concluded such testimony would have aided the jury in understanding the
reasonableness of Filomeno’s belief that he was in mortal danger. It
seems doubtful to us that the psychologist would have been permitted to
testify that Filomeno’s actions were reasonable.” Filomeno v.
State, 930 S.2d 821, 822-23 (
2006). As recognized in Filomeno, the standard jury instruction for
self-defense requires that the jury consider the defendant’s perceptions
and limitations when assessing reasonableness from the perspective of a
person in the defendant’s shoes.
admissibility of expert opinion is the responsibility of the appellate
court when it presents an issue of law or logic. State v. Moran,
378, 381, (1986), citing State v. Chapple, 135
281, 297, n. 18 (1983). Also see State v. Lujan, 192
448, 452 (1998) (the Arizona Supreme Court applied de novo review).
testimony has been liberally allowed to explain the effect of the
“battered women’s syndrome” on the state of mind of women who defend
themselves, sometimes as first aggressors, because of their feelings of
helplessness. Barnes, Admissibility of Expert Testimony Concerning
Domestic Violence Syndromes to Assist Jury in Evaluating Victim’s
Testimony or Behavior, Vol. 57 A.L.R. 315 (West Publication 1998 and
2007 Supp.); Mason, Admissibility of Expert or Opinion Evidence of
Battered-Women’s Syndrome, on Issue of Self-Defense, Vol. 58 A.L.R.
5th 749 (West Publishing 1998 and 2007 Supp).
Pitt would not have attempted to explain to the jury whether or not Fish
acted “reasonable”. [Ans. Br. 69]. Instead, Dr. Pitt would have
explained the physiological processes that affected Fish, which would have
helped the jury decide whether or not Fish acted reasonable under the
the State’s argument is correct then the medical examiner’s
explanation of how the bullet entered Kuenzli, what organs failed, etc.,
would be completely irrelevant. Moreover, the fear and helplessness faced
by battered women would never be the subject of expert testimony because
all of us have faced fear and intimidation.
State argued that Kuenzli was coming fast down a rocky slope and that Fish
“could have stepped to the side”. “Has he proved to you that it is
more likely than not that he couldn’t shuffle up the side of the hill,
turned around on Kuenzli and pointed the gun at him, maybe firing a
warning shot? Has he proved to you that it is more likely than not that he
could have shot him to injure?” [R.T. 6/2/06, 12:10 p.m., 31]. The State
argued that Fish hadn’t met his “burden of proof” by showing that
“the extent to which he used deadly force is the extent to which a
reasonable person would have used it under the circumstances.” [
, 33]. Based upon Fish’s experience with firearms, the State argued that
Fish should have shot to injure, not to kill Kuenzli. The questioning by
grand jurors revealed that the common juror believes the subject of an
attack should shoot to injure. [Ex. 309, 251-52, 259].
testimony of Dr. Pitt would have placed the jurors’ concern and the
State’s arguments in perspective. The trial court’s refusal to allow
Dr. Pitt’s proffered testimony violated Fish’s right to present a
complete defense in violation of due process of law. (14th
Con. and Art. 2, §§4 and 24,
Exclusion and Inclusion of Grand Jury Testimony
Past Gun Ownership and Use by Fish Was Prejudicial And Not
conceded that he fired a deadly weapon with the admitted intent to stop
Kuenzli. Nevertheless, the
State argued that Fish’s “ownership and experience with guns was
clearly relevant to prove the rather simple proposition that he
intentionally or knowingly killed Grant Kuenzli, and went directly to his
claim of justification…” [Ans. Br. 73]. Three years of gun ownership
and experience is not “relevant”, let alone “clearly relevant”, to
prove that someone who shoots a gun on one particular occasion intends to
use deadly force or that the use of such force was not justified.
the cross-examination of Fish at the grand jury proceeding, he was asked
about first shooting a gun when he was ten or eleven years of age [Ex.
309, p. 180] and target shooting as a kid, testimony well beyond the
“three years” parameter set by the trial court. Fish first began to
acquire firearms after college in the mid-seventies. [
, 182]. Fish was explicitly asked about all handguns he owned, all rifles
that he owned, and all automatic pistols that he owned. [
191]. Fish estimated that he
owned a dozen handguns. [
192]. He estimated that he owned a dozen or two handguns and rifles. [
was grilled about whether the Kimber 10mm was one of the “most
powerful” guns that he owned. [
193-94]. He was asked about the written training materials that he
received when he took a concealed weapons course. [
the cross-examination of Debora Fish, the State asked her about ammunition
that was found in the Fish family van, including .380 caliber bullets. [R.T.
5/23/06, 127]. She was questioned about the CCW courses that she completed
including “situational shooting”. [
130]. She was asked about where in the house the Fish family stored guns.
Debora answered that they kept guns in her bedroom in large, metal gun
State argues that extensive evidence regarding gun ownership, possession
and use was merely “cumulative”. The defense “drew the sting” and
asked Debora Fish about the family ownership of guns in light of the trial
court’s ruling that the State would be allowed to cross-examine her
about three years of gun history and beyond.
that appellant had a gun and that he shot Brewer are uncontroverted. His
reason for carrying a gun does not pertain to the existence of any fact
that is of consequence to determination of the action…Fed. R. Evi. 401.
The mere possession of a gun simply does not go to the issue of whether
its use is justified in self-defense…
640 F.2d 150, 153 (8th Cir. 1981).
The “history” of gun ownership was irrelevant and prejudicial. Rule
401, 402, 403,
Although the screwdriver concealed inside of Kuenzli’s back
pocket was excluded from the jury as relevant, the State was allowed to
present testimony that a “military-appearing pouch” was found inside
of Fish’s backpack that contained magazines for his pistol, including 9
cartridges in the first magazine and 8 cartridges in the second. [R.T.
4/26/06, 2nd Vol., 92-94 (Thomas Ross, Crime Scene
Investigator)]. After extensive argument [R.T. 5/4/06, 21-23, 39] the
Investigator, Mark Christian, was allowed to provide an inventory of the
contents of Fish’s van, which was found more than one mile from the
scene of the shooting. [Ex. 25-31]. Exhibits 132-37 were admitted into
evidence, which constituted items seized from Fish’s van [Id.
31-34], including a .22 caliber magnum shell, .380 caliber ammunition
found in a magazine, 10 mm automatic ammunition found in a box
manufactured by Blazer, other cartridges and cardboard targets. [
40-49]. The admission of this evidence was not only irrelevant, but highly
prejudicial. Rule 401, 402, 403,
Jury Questioning About Warning Shots, Injury to Kuenzli,
and Brandishing a Weapon were Irrelevant and Prejudicial
State, without citing any legal authority, argues that the testimony
challenged by Fish was cumulative and consistent with his own defense.
Lost in the process, however, is the puzzling allowance by the trial court
of Fish’s explanation that “brandishing a weapon” is unlawful in
response to grand jury questioning. Fish explained that brandishing a
weapon is a crime “in and of itself”. [Ex. 309, p. 254]. It was
inappropriate for the trial court to allow Fish to explain the “law”
on brandishing a weapon when it was never supported by a jury instruction,
statutory reference, or otherwise.
grand jury asked Fish repeatedly why he did not fire a “warning shot”
at Kuenzli and why he did not shoot to injure Kuenzli, rather than kill
him. The questioning was irrelevant and prejudicial. It was unfair for
Fish to carry the burden of dissuading the jury that he could have
“winged” Kuenzli, rather than shoot at center mass. For similar
reasons, questions and answers posed to Fish about the “legal
consequences” of injuring someone should not have been allowed.
Background Should Not Have Been Excluded
questioning by the grand jury was not properly placed in context and in
perspective without a brief explanation of Fish’s background. As a
result, the exclusion of the “background” testimony did violate Rule
106, Ariz. R. of Evid.
Transcript of the Grand Jury Testimony Should Not Have Been
Admitted and Presented to the Jury
Court of Appeals in U.S. v. Taghipour, 964 F.2d 908, 910 (9th
Cir. 1992), did not rule that transcripts may generally be provided to the
jury during deliberation, but only that a transcript of an audio tape may
be presented to the petit jury when the audio tape itself has also been
admitted into evidence. The transcript in Taghipour not only
related to an admitted audio tape, but one translated from another
language in part.
The grand jury testimony of Fish, however, did not relate to an audio
tape. The trial court denied introduction of other transcripts [R.T.
6/26/06, 10] because they would “unduly highlight” the testimony.
was Redacted Improperly and Prejudicially
State concedes that it redacted the grand jury transcript incorrectly.
However, the State mistakenly concludes that Fish otherwise testified
regarding the lack of time to fire a “warning shot” at Kuenzli. [Ans.
Br. 81-82]. In fact, however, the omitted testimony from Fish related not
to firing a warning shot, but specifically referred to wounding Kuenzli,
rather than killing him. The grand juror expressly asked Fish whether or
not he could have “maybe shot the man in the leg or something”. [Ex.
309, p. 251]. Fish was in the process of explaining why he shoots at
someone “center mass” rather than in the hand or foot. [
252]. Although Fish may have explained to Officer Selby in another
statement that he had no time to fire a warning shot, the grand jury
testimony of Fish about why he was shooting center mass, rather than
attempting to wound Kuenzli, was equally critical but improperly redacted.
State argues that the redaction at pages 173-74 of the grand jury
transcript was insignificant. [Ans. Br. 84]. The redacted statement
explains why Fish felt that he was forced to shoot Kuenzli, which related
directly to the “reasonableness” of his actions. It was unfair to
allow part of Fish’s answer yet cut off the remaining portion of the
answer, which explained the basis for his “reasonable” action using
deadly force. [R.T. 5/9/06, 275-77].
the trial court forever discounted the testimony of Fish by excluding G.J.
266, lines 3-12 [Appx. 10]. First, Fish explained that he would only shoot
a dog “if he could not get the dog to stop…any other way.” Then,
particularly important in light of questions from the grand jury, he
explained why he was forced to shoot Kuenzli because he could not “get
Kuenzli to back off.” The excluded answer by Fish was essential to
explain the portion of the answer allowed by the court. [Ans. Br. 85]. The
trial court is required to place any portions of grand jury testimony into
evidence when necessary to qualify, explain or place into context other
portions already introduced. State v. Prasertphong, 210
491, 499 (2005).
8. Lucien Haag’s Testimony Magnified the Prejudicial Effect of the Gun
admission of Lucien Haag’s testimony regarding the Kimber handgun and
its 10mm ammunition was erroneous. State
v. Gendron, 168
153, 155 (
Testimony About Hand-to-Hand Combat and the Physical Description
of the Scene of the Shooting Should Have Been Allowed
a. Forensic Investigator
testified that he spent approximately one hour documenting Kuenzli’s
path of travel and that he took photos of the “travel path and things of
that nature” of Kuenzli. [R.T. 5/19/06, 163]. Thompson saw depressions
in the ground, disturbances in the soil, broken twigs and pine needles,
and ground cover, etc. [Id. 168]. Thompson photographed the soil
disturbances in order to document the path taken by Kuenzli. [
169]. It is ironic that a skilled investigator was not able to testify
that he observed Kuenzli’s “tracks” along the trail because it was
“speculation”, but Dr. Horn was allowed to testify that bullet wounds
to the hand and forearm of Kuenzli were “consistent with defensive
wounds” when that was only one of several possible explanations.
Thompson’s testimony would have corroborated Fish and painted an
accurate picture of the scene for the jury.
law allows lay opinions
on numerous similar subjects.
v. Miller, 186
314, 322 (1996) (grooves in sand made by belt buckle and shorts;
vegetation in victim’s hand came from nearby plant; photos admitted); State
v. Amaya-Ruiz¸166 Ariz. 152, 168 (1990) (comparison of footprint and
shoe made by lay person allowed; photos allowed).
b. Corporal Feagan
tactical disadvantage of defending oneself from an attacker charging down
on someone from higher ground simply illuminates an important factor to be
considered by the jury in determining whether Fish had other less lethal
options. It does not intrude upon the juries’ determination of whether
or not Fish acted reasonably. [Ans. Br. 91-92]
Dr. Horn’s Speculative Testimony was Inadmissible, but Acted
as Crucial “Forensic Science” for the State’s Closing
State relied so much upon the testimony of Dr. Horn, especially regarding
“defensive wounds” during its closing argument, it is beyond doubt
that Fish would not have been convicted but for the testimony. Prior to
trial, Fish filed a motion in limine to preclude the State from presenting
expert testimony regarding defensive wounds. [I.R. 205]. Fish argued that
there was “literally ten possible explanations for why Kuenzli’s right
hand [and arm] was in front of his torso. [R.T. 4/19/06, 49]. The State
argued that Dr. Horn could testify that the wounds suffered to his arm and
hand were “consistent” with “defensive wounds”. [I.R. 215]. The
State conceded that Horn’s opinion that Kuenzli suffered defensive
wounds was one of three different possibilities and was not supported by
any other evidence making it more likely than not that the wounds were
of the opinions offered by Dr. Horn were supportive of the State’s
theory, but all were also speculative at best. On cross-examination, Dr.
Horn conceded that Kuenzli could have had a clenched or closed fist
wrapped around his thumb at the time of shooting, rather than an open
hand. [R.T. 5/2/06, 37]. The tips of the fingers may have been out of the
way of the track of the bullet. [
40]. Dr. Horn could not interpret Kuenzli’s motivations at the time of
the shooting. His hands and arms could have been in front of his torso
simply because he was running.
on redirect examination, Dr. Horn testified that the injuries to
Kuenzli’s hands were ultimately “consistent” with defensive wounds.
80-81]. Dr. Horn speculated that it is unusual for someone to carry their
hands in front of their torso while running. In other words, Dr. Horn
could only testify that Kuenzli’s hands were in front of the torso at
the time of the shooting, but could not give an expert opinion about why,
including whether the wounds were defensive rather than offensive. [
43]. The hands could have been in front of the torso without being
“offensive” or “defensive”, by running or pointing or gesturing or
closing argument, the State stressed that “defensive wounds” were
suffered by Kuenzli. [R.T. 6/12/06, 73, 79; R.T. 6/12/06, 12:10 p.m.,
110-11]. The State argued that the “circumstantial evidence” of
defensive wounds, as interpreted by Dr. Horn, is “just as good as direct
74]. The wounds suffered by Kuenzli were “consistent with defensive
postures of other victims” in other homicide cases. [R.T. 6/12/06,
73-74, 75]. The State forcefully argued, based on the opinion of Dr. Horn,
that Kuenzli “was attempting to defend himself against not one, but two
75]. The State described the defensive wounds as a matter of “forensic
trial court’s allowance of the speculative testimony of Dr. Horn,
however, must be considered a far-fetched application or extension of State
v. Paxson, 203 Ariz. 38 (App. 2002).
An expert opinion must be within a reasonable degree of medical
probability which is an important evidentiary standard throughout the
that must be enforced in order to prevent unreliable medical testimony
from swaying juries, which is exactly what happened in Fish’s case. The
State used Dr. Horn’s testimony to support the argument that Kuenzli was
simply running to get his dogs and was shot as he was trying to shield
himself from the aggressive shots fired by Fish. The State argued that
Kuenzli suffered defensive wounds as a matter of “forensic science”.
State relies upon State v. Murray, 184
9, 29 (1995), where the trial court allowed testimony about footprint
evidence based upon the training and experience of Detective Lent. The
court noted that the training and experience of the expert must qualify
him or her to render “enlightened opinions and draw sophisticated
conclusions from the particular evidence available”, citing State v.
151, 155 (1987). The appellant merely argued on appeal that Detective Lent
was not qualified, not that the expert’s opinion was inappropriate.
State cites Saide v. Stanton,
135 Ariz. 76, 78 (1983), which stands for the proposition that the
probability of the expert opinion must be considered on the basis of the
entire record, not simply the magic word or phrase used by the expert,
which is correct. The State’s argument tacitly admits that the expert
opinion, however, must be supported by a logical conclusion of more likely
than not based upon the entire record.
future medical expenses are reasonably probable or certain is determined
“from all the relevant circumstances which are before the court”. The
use or refusal of an expert to use a “magic word” or phrase such as
“probability” is not determinative. The trial court is allowed to
determine probability or lack thereof if the evidence, taken as a whole,
is sufficient to warrant such a conclusion.
at 79 [cite omitted]. As
explained in footnote 1 of the
decision, there was sufficient evidence for the jury to find a
“probability” of the need for future medical care for dental work on
both crowns and bridges. The Court reiterated that the Arizona Rule, even
regarding future medical expenses in light of a documented injury,
must be “reasonably probable”.
at 77. The issue in
related more to “damages” than “causation”. Yet, the standard
employed is higher than the one applied in Fish.
Both Paxson and State v. Ellevan, 179
382, 384 (App. 1994), support the proposition that an expert opinion must
be more likely than not or, at a minimum, equally probable (50-50%). It is
impossible for the State to cite relevant
cases without running across language suggesting the same conclusion.
[Ans. Br. 94]. As noted in Paxson:
It is not necessary that such evidence be sufficient to support a
finding of ultimate fact; it is enough if the evidence, if admitted, would
render the desired inference more probable [than not].
Despite the opinion of Dr. Horn, interpreting one “possible”
inference raised by an injury to someone’s hand or arm by a bullet that
eventually penetrated their chest, there was no other evidence to support
the conclusion that Kuenzli suffered defensive wounds. Dr. Horn’s
interpretation of the wounds as “consistent with defensive wounds” was
nothing more than a speculative judgment about one possibility within an
array of many possible inferences. The State does not argue otherwise.
Medical testimony, when “inconclusive” may be of value when
considered with other evidence.
, citing Butler v. Wong, 117
395, 396 (App. 1977). In Ellevan, the testimony of Dr. Palmer was
substantially fortified by the introduction of a scientific study and the
testimony of the petitioner, which affirmatively showed that he likely
contracted AIDS two years prior to sentencing. The same composite of
evidence simply does not exist to support the critical opinion of Dr. Horn
that Kuenzli suffered “defensive wounds”, predicated only upon the
single fact that his hand and forearm were in front of his torso when he
was shot. Nonetheless, the testimony of Dr. Horn effectively transformed
Kuenzli from “first aggressor” to helpless victim without any credible
misleading, powerful, and unfair to allow Dr. Horn to testify that one of
many “possible” explanations was “consistent with defensive
wounds”. “[E]liciting an expert’s opinion that the victim’s
conduct is consistent with the crime having occurred” carries “a
significant risk that such testimony” will unfairly sway the jury. State
v. Moran, 151
378, 386 (1986); State v. Tucker, 165
340, 349 (1990)(child molestation cases). The testimony of Dr. Horn not
only swayed the jury, it was used as the decisive “evidence” against
Fish. Dr. Horn’s testimony fell below evidentiary standards and was
misleading. It violated due process of law.
The State repeatedly cites State v. Van Adams, 194
408, 416 (1999) for the proposition that “harmless error” has
occurred. Van Adams, however, contains only a conclusionary
statement about “harmless error”, which related to testimony from a
lay witness that “may well have lacked probative value”, but
“constituted only a small portion of her testimony” and was not
unfairly prejudicial. Id.
Dr. Horn’s unreliable but powerful testimony raised a “reasonable
probability that the verdict might have been different had the error not
been committed…To put it differently, is there any reasonable doubt that
the jury would have found the defendant guilty in the absence of [the
inadmissible evidence]?” State v. Williams, 133
220, 225 (1982) (cited in Van Adams).
New Trial Should Have Been Granted for Jury Misconduct
Fish’s motion for new trial was supported by law and three
affidavits. Fish raised three
issues in that motion: a) that the jury received, through juror Kathleen
Ryza, evidence not properly admitted, regarding the drug Effexor, b) that
the jury received information not properly admitted regarding the stay and
appeal of the burden of proof, and c) that juror Rita Guthrie violated the
court’s admonition by speaking with non-jurors about the case, that she
thereby necessarily received evidence not properly admitted, and that she
changed her verdict on the basis of that evidence.
R. Crim. P. 24.1(c)(3)(i).
Jury Instructions Erroneous
Jury Instruction on Self-Defense
instruction on self-defense [I.R. 347, 18; R.T. 6/12/06, 46] expressly
stated that “a person may use deadly force in self-defense only
to protect against another’s use or threatened use of deadly physical
force”, rather than the “apparent” use or threat of deadly force.
The error was critical in Fish’s case because he shot Kuenzli precisely
because of the apparent threat of deadly force.
self-defense instruction submitted by Fish stated that an honest belief in
the necessity of self-defense is “insufficient” [I.R. 328, Inst. 404];
but the trial court stated that it was “immaterial”. The language
employed by the court would encourage the jury to affirmatively disregard
the grand jury testimony and statements made by Fish.
Korzep v. Superior Court, 172
534, 540 (App. 1992), involved A.R.S. §13-411 (crime prevention) rather
than A.R.S. §13-404 (self-defense), the analysis is the same. [Ans. Br.
109]. A.R.S. §13-411 also requires “an objective, third person measure
of reasonableness of a defendant’s preventative force”. Yet, it
includes “both a subjective and objective component”. Korzep,
172 at 540. The same is true of self-defense. Fish’s honest belief may
have been “insufficient”, but was not “immaterial.”
Most statutes require not only that you
believe that you need to use force but that a reasonable
person in the same situation also would have believed that force was
necessary. Specifically, you’re justified in killing someone if you
honestly and reasonably believe it’s necessary.
Samaha, Criminal Law, p. 219 (
, Seventh Ed. 2002).
instructions can violate due process and render a trial unfair. Ho v.
Carey, 332 F.3d 587 (9th Cir. 2003)(erroneous instruction
on general intent and malice in second degree murder case violated
constitutional rights of accused citizen to have jury correctly decide
every element of the offense); Powell v. Galaza, 328 F.3d 558 (9th
Cir. 2002)(specific intent); Keating v. Hood, 191 F.3d 1053 (9th
Cir. 1999), cert. denied, 531 U.S. 824 (2000)(jury instruction that
omitted mens rea element
violated due process of law). Plain error occurs when the trial court
fails to instruct on an “element” of the offense because the
instruction violates substantial due process rights.
v. Alferahin, 433 F.3d 1148, 1157-58 (9th Cir. 2006); State
v. Ontiveros, 206
539 (App. 2003).
“Then it is our final responsibility to determine law and policy
and it becomes our duty to ‘look over the shoulder’ of the trial judge
and, if appropriate, substitute our judgment for his or hers.” State
v. Chapple, 135
281, 297 n.18 (1983). “[A] trial court has a duty to instruct on the law
relating to the facts of the case when the matter is vital to a proper
consideration of the evidence, even if not requested by the defense and
failure to do so constitutes fundamental error.” State v.
330, 337 (1985); State v. Tittle, 147
339, 342 (1985)(citing numerous
A trial court’s erroneous instructions on a defendant’s
affirmative defense constitutes plain or fundamental error. State v.
Preyer, 502 A.2d 858, 861-63 (1985); Omaha Min. Co, v. 1st
Natl. Bank, 415 N.W.2d 111, 115 (1987). Both cases were cited with
approval by the Arizona Supreme Court in State v. King, 158 Ariz.
419, n.5 (1988)(fundamental error in insanity instruction).
b. Jury Instruction on Motive
State may have been “indifferent” about the “motive” instruction,
but neither Fish nor the court were indifferent. [Ans. Br. 109]. The trial
court noted that the “jury always asks” about motive in every case. [R.T.
6/6/06, 124]. The issue of “motive” was a genuine showdown in the case
because the State implied that Fish was salivating at the chance to use
his training to shoot someone.
Arizona Supreme Court has noted that “standard instructions about the
burden of proof provide a poor substitute for a properly supported alibi
instruction.” State v. Rodriguez, 192
58, 63 (1998). Likewise, the Arizona Supreme Court has expressly found
that the failure to reinstruct the jury on the meaning of proof beyond a
reasonable doubt at the close of the evidence, even if the jury has been
properly instructed on the concept at the beginning of the case,
constitutes fundamental error. State v. Johnson, 173
274, 276-77 (1992). See, State v. Noriega, 187
282, 286-87 (App. 1996)(“mere presence” instruction). Arguments of
counsel cannot cure significant flaws in jury instructions because the
jury is instructed that the arguments, statements and comments of counsel
are not evidence and are to be disregarded if they are not supported by
the evidence. State v. Johnson, 169
567, 572 (App. 1991)(Jacobsen J., dissenting), reversed on other grounds,
173 Ariz. 274 (1992). The normal rule is that an erroneous jury
instruction presumably results in prejudice. State v. Arceo, 928
P.2d 843, 853 (
1996). See the discussion of legal authorities in part a.
Dangerous Instrument/Responsibility for Dogs Instruction Should
Have Been Given
State does not quarrel with the proposition that whether or not an object
is a deadly or dangerous weapon or instrument is a jury question. State
v. Caldera, 141
634, 637-38 (1984). Nor does the State rebut
law to the effect that a dog may be a dangerous instrument based upon the
dog’s history. Schleier v. Alter, 159
397, 398, 400 (App. 1989). [See Op. Br. 60; Ans. Br. 111].
State does not argue the merits of the court’s refusal to instruct the
jury on Kuenzli’s legal responsibility for the conduct of his dogs even
though the instruction was affirmatively requested by Fish at trial. [R.T.
6/6/06, 154, Appx. 11]. To be sure, the instruction was offered as part of
Fish’s theory of defense at trial. [6th and 14th
Con. and Art. 2, §§4 and 24,
d. Reasonable Doubt/Burden of Proof
asserts that the reasonable doubt instruction approved in State v.
Portillo, 182 Ariz. 592 (1995), constitutes fundamental or structural
error. [Op. Br. 61]. It denied Fish of due process of law.
Lesser Included Offense
argument over jury instructions, Fish’s attorney, argued that “no
factual basis” existed for a finding of “recklessness” on the part
of Fish because he intentionally and purposefully shot Kuenzli (in
self-defense). [R.T. 6/6/06, 24-26; 6/12/06, 12-13, 22-23]. As a result,
Fish argued that the jury should not be instructed on manslaughter nor
second-degree murder, predicated upon recklessness (rather than knowing or
intentional), because Fish unequivocally acted intentionally and
purposefully. [R.T. 6/6/06, 24-79]. The trial court issued a lengthy,
reasoned “ruling” finding that “recklessness” did not apply:
[Fish] made the conscious decision to un-holster the weapon,
deactivate the safety, cock the weapon, point it directly at the chest of
the victim, and then discharge three rounds…. He did not consciously
disregard a substantial risk that his conduct would cause the victim’s
death, without actually knowing that death or serious physical injury
would occur. He acted precisely to stop the threat by shooting the victim
in the chest, knowing the possible outcome of doing so. When viewed in
light of the preceding cases, the Defendant’s actions here were
deliberate and calculated, not reckless.
[I.R. 240, 4; Appx. 12, M.E. 340, p. 4]. The court and Fish
agreed that “recklessness” was simply not a realistic, factual nor
legal issue in this case - - or so we thought.
the absence of any evidence of reckless conduct, the court nevertheless
gave a second-degree murder instruction that expressly included
“reckless” homicide. [I.R. 347; R.T. 6/12/06, 23-24]. If Fish did not
act “recklessly” in shooting Kuenzli, he did not act “recklessly”
under circumstances manifesting extreme indifference to human life. [R.T.
second degree murder is also inconsistent with self-defense. In other
words, the jury instructions given by the court, over objection by Fish,
were illogical. The defense of self-defense is NOT applicable to reckless
homicide. State v.
, 729 A.2d 1021, 1030-31 (N.J. 1999); Duran v. State, 990 P.2d
1005, 1008-09 (
1999). A “directed verdict” should have been issued on recklessness. [R.T.
6/12/06, 12-13, 22-24; R.T. 6/6/06, 25-26, 33-34, 37-38].
the jury verdict, Fish filed a Motion for New Trial arguing that the
lesser-included instruction for “reckless” manslaughter should have
been given if and once the “reckless” second-degree murder instruction
was provided to the jury. [I.R. 352, 13-14]. Once the trial court approved
“reckless” second-degree murder, then reckless manslaughter became a
“necessarily included lesser offense” under Rule 23.2, Ariz. R. Crim.
Pro. and due process of law. The Defense never waivered from the position
that neither “reckless” instruction should have been given. [R.T.
6/6/06, 24-79]. If the greater was given, however, the lesser should have
been given. See, Bradley v. Duncan, 315 F.3d 1091 (9th
Cir. 2002), cert. denied, 540 U.S. 963 (2003)(refusal to instruct on
entrapment denied “full defense” in violation of due process); Horgan
v. Gibson, 197 F.3d 1297 (10th Cir. 1999), cert. denied,
531 U.S. 940 (2000)(trial court’s failure to give lesser-included
instruction violated Beck v. Alabama, 447 U.S. 625 (1980)); Hennessey
v. Goldsmith, 929 F.2d 511, 516-17 (9th Cir. 1991)(failure
to instruct on element of crime violates due process, but harmless in Hennessey);
Allen v. Morris, 845 F.2d 610, 617 (6th Cir. 1988),
cert. denied, 488 U.S. 1011 (1989)(failure to instruct on lesser included
offenses when evidence warrants raises habeas claim); Vujosovic v. Rofferty, 844 F.2d 1023, 1027 (3rd
Cir. 1988)(failure to instruct on lesser included offense supported by
evidence violates due process). See also the legal authority above in
State does not dispute that “manslaughter” was necessarily a
lesser-included offense. Its arguments of “waiver” and “invited
error” are misplaced. [Ans. Br. 104, 113]. Fish did oppose the
manslaughter instruction, but only because “recklessness” did not
apply to the case.
Endangerment and Threatening and Intimidating
Fish asserts that the trial court’s refusal to instruct the jury
on crimes likely committed by Kuenzli, including aggravated assault,
endangerment, and threatening and intimidating, leads to the inescapable
conclusion that a fundamental aspect of Fish’s theory of defense was not
supported by jury instructions.
Const. Amend. VI, XIV.;
Const. Art. II, §§ 4, 24.
repeated effect of significant error at trial, although deemed harmless in
one circumstance or another, may very well add up to an unfair trial if
each error is not isolated by considering it separately. Cumulative error
is an extension of the harmless error doctrine. [Op. Br. 64-65]. Darks
v. Mullin, 327 F.3d 1001, 1018 (10th Cir.), cert. denied,
540 U.S. 968 (2003)(“Cumulative error analysis is an extension of
harmless error… [T]he cumulative effect of two or more individual
harmless errors has the potential to prejudice a defendant to the same
extent as a single reversible error.”); U.S. Const. amend XIV; Ariz.
Const. art. II, §§ 4, 24. Alcala v. Woodford, 334 F.3d 862,
882-83 (9th Cir. 2003); Cargle v. Mullin, 317 F.3d 1196,
1206-07, 1208, 1221, 1223 (9th Cir. 2003). See also, Kyles v. Whitley, 514
419, 421-22, 440-41 (1995).
Fish was convicted of second-degree murder and sentenced to 10
years in prison because of an unfair trial. His conviction must be
reversed and the case remanded to the trial court for a new trial.
RESPECTFULLY SUBMITTED this ______ day of April, 2008.
Law Office of
LEE PHILLIPS, P.C.
JOHN TREBON, P.C.
to Rule 31.13 Arizona Rules of Criminal Procedure, undersigned counsel
certifies that this Reply Brief is double spaced, uses 14-point Times New
Roman proportionately spaced typeface and contains 9,986 words.
The Reply Brief exceeds the 7,000 word limitation of
Rule 31.13(b)(2), but this Court has approved a Reply Brief of 10,000
Dated this______day of April, 2008.
The original and six copies of this Reply Brief were filed by mail.
The Briefs were addressed to the Clerk of Court of Appeals for the
and mailed by Fed-Ex for
delivery within three calendar days on _________________, 2008.
See Rule 31.13(a).
Dated this______day of April, 2008.
CERTIFICATE OF SERVICE
I hereby certify that on this ____ day
of April, 2008, I mailed copies of the
attached to the following people:
Joseph T. Maziaz
Assistant Attorney General
Criminal Appeals Section
W. Washington St
Honorable Mark Moran