Harold Fish Defense

This Court has jurisdiction over this appeal pursuant to Rule 31, Arizona Rules of Criminal Procedure, and A.R.S. §13-4033.

Mr. Fish, then age 57, was indicted for second-degree murder because he shot Grant Kuenzli on the “Arizona Trail” in the northern part of the State after Mr. Kuenzli and two dogs charged Fish in a threatening, menacing manner on May 11, 2004. Kuenzli verbally threatened to kill Fish. [R.T. 2/23/06 , pp. 114-16].^{^[1]} Fish called for help, cooperated with the authorities, and immediately reported that Kuenzli left him with no choice. He feared for his life.

Mr. Fish is a retired school teacher with no criminal history whatsoever, while Mr. Kuenzli had a well-earned reputation for mental instability, irritability and uncontrolled rages - - especially related to his dogs. Fish felt that he would be seriously injured or killed by Kuenzli after he fired a warning shot at two dogs that charged him and then quickly faced a charging maniac that would not stop nor heed any warnings. Fish shot Kuenzli just a few feet short of a tumultuous encounter with a crazed man bent on hurting him. Fish was then surrounded by Kuenzli and two of three dogs that were camping with him in the woods out of his car. Fish had previously drawn his gun because of a “dog attack” and felt that he reasonably had no other choice.

Although Kuenzli had placed a screwdriver in his back pocket, the State argued that Kuenzli was “unarmed” with the blessing of the trial court. [R.T., 4/19/06 , 104-105 (court’s ruling); See also R.T., 4/20/06 , p.14, line 22-23 (State’s Opening Statement); R.T., 5/19/06 , 122 (questioning by State’s attorney); R.T., 6/2/06 , 12:10 p.m. , p.22, line 23 (State’s Closing Argument)]. Kuenzli’s celebrated history of violence, confrontation, and uncontrolled rages, as well as, his documented mental history of instability was also kept from the jury.

On the other hand, Fish was painted as a “gun nut” before the petit jury. While sanitizing information about Mr. Kuenzli, Judge Moran inexplicitly allowed the State to explore Fish’s use or possession of guns for the past three years and beyond. In the end, Fish won the battle for his life against Kuenzli, but lost his battle for freedom. He was sentenced to serve a mitigated term of ten years in prison.

By the time of trial, Harold Fish was 59 and had been married for more than 20 years. He and his wife Debora are blessed with seven children. Before his retirement, Mr. Fish taught Spanish at Tolleson High School for 28 years. [R.T. 4/20/06 , 50-52]. He is a graduate of both NAU and BYU and holds an MA in Education. He was actively involved with the Boy Scouts for many years. [R.T. 5/23/06 , 110, 113, 124]. Fish also collected guns - a practice that he learned from his stepfather.

Fish started his hike in the Mazatzal Wilderness at 11:30 a.m. on May 11, 2004 . He was armed with a handgun. Gunfire was heard in the area all that afternoon, which was not unusual. Indeed, the two paramedics who responded to the scene of the shooting testified that they always carry firearms when they hike in the forest above the Mogollon Rim. [R.T. 4/20/06 , 104, 168].

Fish had hiked nearly 12 miles when he made it to the top of the switchbacks, a climb in elevation of 1,000 ft. As he crested the Mogollon Rim, he was tired but “happy”. He was absolutely unprepared for the encounter he was about to have with Kuenzli.

Grant Kuenzli was homeless and living in his car with three dogs. He had a dramatic emotional attachment to dogs which led directly to the termination of his employment and into confrontations with numerous people. Kuenzli was taking psychiatric medications for a variety of mental disorders. Prior to the encounter, he had a screwdriver concealed in his back pocket.

As Fish was coming out of the canyon, he was suddenly met by Kuenzli’s two unleashed and aggressive dogs. The dogs charged at Fish. Fish felt threatened and cried out, drew his weapon and fired once to scare the dogs off. Neither of the dogs were injured and they scattered momentarily, but Fish was then confronted by a man (Kuenzli) running down the trail, flailing his arms, and yelling: “why did you shoot my dogs?!” The man was rapidly descending on Fish, from the high ground. [R.T. 4/26/06 , 60] The man screamed that he would “kill” Fish. [ Id. , 75]. Fish described that man’s eyes as “crazy” and himself as “terrified.” Fish warned the man to stop, but he did not.

Fish held off as long as he could, but the wild-eyed man kept running toward him – despite the fact that Fish had just fired his gun. When the man did not slow down, Fish became convinced he was coming “to hurt” him and it “scared the crap out of” him. [Ex. 305, 32] Kuenzli was “coming like a freight train” and had “this look in his eyes.” Fish was terrified that Kuenzli would “take my gun away and shoot me with it.” [Ex. 305, 33] The legitimacy of this fear was later confirmed by firearm safety instructor Michael Anthony. Fish knew that his only choices were “to take my chances with him and the dogs…or use the gun to defend myself. It was a lousy choice…I can’t win…” [Ex. 305, 38-39]

At the moment of decision, Fish found himself surrounded by Kuenzli and his dogs. Fish feared for his life. Fish waited until the last possible instant before firing and shot Kuenzli just a few feet short of a physical encounter. [ Id. , 76-77, 98-99]. Fish was “scared to death” [Ex. 305, 48] and did not have time to use the sights on his gun, but simply pointed the gun at “center mass” [Ex. 305, 51] as he had been trained. He didn’t “really remember pulling the trigger,” [Ex. 305, 49] but he estimated that Kuenzli was 5-8 feet away.

The state’s firearms expert, Lucien Haag was unable to refute Fish’s account of the shooting, including the fact that Kuenzli was 5-8 feet away. [R.T. 5/02/06 , 202-203]. Haag also testified that the number of bullets in the gun, the bullet found at the scene, the placement of the ejected casings, the angle of the entry wounds were all consistent with Fish’s account. [R.T. 5/02/06 , 219; 222-223; 235]. Haag confirmed that Kuenzli, if running, would have been upon Fish is less than one second. [R.T. 5/02/06 , 223-224].

Fish did everything he could to save Kuenzli’s life. He attempted to call for help, but received no cellular service and was forced to hike on for assistance. [Ex. 305, 53] Before leaving Kuenzli, he put his backpack under Kuenzli’s head and covered him with a blanket to keep him warm. [Ex. 305, 52-53] At 6:40 p.m. , Chad Dieringer and his wife were driving on Highway 87 nearby when they were waved down by Fish. [R.T. 4/26/06 , 8-9].

Fish asked him if he had a cell phone, but Dieringer confirmed that there was no cell phone coverage. Instead, Dieringer used his On-Star system to call authorities. [R.T. 4/26/06 , 12-13; Ex. 105]. Fish left twice to check on Kuenzli. Though Fish was upset, the Dieringers never felt threatened by him. [ Id. , 26-28.]

The Strawberry Fire Station responded to the scene at 7:30 pm. Fish flagged the paramedics down, urged them to hurry, and led the paramedics to Kuenzli, jogging beside the ambulance. [ Id. , 55-63]. Fish exclaimed: “you have to help this guy, you have to help this guy!” [ Id. , 65]. Paramedic Raymond Groves did not feel threatened by Fish. [ Id. , 88]. He believed Fish genuinely wanted to help Mr. Kuenzli. Grove came upon Kuenzli and determined that he was dead. Fish became visibly upset, pale, and depressed. Watching the color drained from “Hal’s face,” Groves became concerned that Fish would himself become a patient. Groves described the phenomenon as “letting the air out of a balloon”. Fish “collapsed inside”. The second paramedic, Mike Roggenstein, added that Fish kept saying “why didn’t he just stop, why didn’t he just stop?” [ Id. , 164-67].

John Selby was the first law enforcement officer to arrive on the scene. Fish kept talking over and over about what took place even though Selby was not questioning him. Fish was “calm to a point”, but was “shaking a bit and his voice was cracking and skipping.” The first officer from the Sheriff’s Department, Sergeant Ramos, noted that Fish was “appropriately upset” for the situation. [R.T. 5/09/06 , 45-48] Ramos described Fish as someone who “looked like a victim” [R.T. 5/09/06 , 164] and Fish was permit to remain on the scene during the investigation and stay the night in a hotel. [R.T. 5/17/06, 78].

Although there were no eyewitnesses, some nearby campers (Ashley Gross, Dannie Goodwin, Gary Flores and Braden Baretta) claim to have heard shots fired. They, too, were shooting guns in the forest that evening. Their memories were not consistent. To cite just one example: Gross claimed to have heard approximately three shots at around 4:00 pm [R.T. 4/21/06 , 67] or 5:30 pm [R.T. 4/21/06 , 23] [R.T. 4/21/06 , 20]; Goodwin heard four shots at 6:30 . [ Id. , 72-77]. Gross later admitted that her memory was not clear.

Fish explained the shooting before the grand jury, and this was later read to the petit jury. Fish was questioned about hunting with his father as a child. [Ex. 309, 179-80]. He was questioned about target shooting. Id. He was asked about buying and collecting guns. He was asked about every gun that he acquired, owned, or shot after college. [Ex. 309, 180-96] Even the storage location of guns at Mr. Fish’s home was allowed. [ Id. , 215-33]. Fish was questioned about his “hollow-point” ammunition, when he loaded the gun, why he didn’t carry the gun loaded in his automobile, whether he put a bullet in the chamber, etc. [Ex. 309, 196-204] None of these activities were illegal, but Fish’s answers would later be used extensively by the State to argue that he had been dishonest. This questioning was irrelevant and prejudicial and should have been excluded.

Fish was questioned about the fact that he fired a warning shot at the dogs [Ex. 309, 216-218, Appx. 9] and grand jurors asked Fish why he failed to give a warning shot to the human being. [Ex. 309, 251, Appx. 9]. Fish responded that his concealed weapons course trained him not to fire a warning shot, and he did not have time to do so. [ Id. ]. Fish was asked why he didn’t try to shoot Kuenzli in the arm or leg. Fish answered that he was trained to shoot at “center mass”. [Ex. 309, 252, Appx. 9] Fish stated there were “tremendous legal problems” with attempting to “wing” an attacker. The grand jury asked “what kind of legal problems do you incur?” [Ex. 309, 259, Appx. 9] – a legal question Fish was in no position to answer. Judge Moran also admitted Fish’s grand jury testimony regarding the “reasonable man legal construct” and his explanation of “brandishing a weapon.” [Ex. 309, 267, Appx. 9].

The jury was never fairly informed of the unique threat Kuenzli posed because his mental illness and prior acts of violence were sanitized prior to the trial. The State, however, was allowed to present good character testimony that Kuenzli was an animal lover who volunteered at the Payson Humane Society by taking dogs from the shelter on hikes. His fondness and generosity towards animals was emphasized, while details of his violent confrontations with people were kept from the jury.

The defense was permitted to present only “opinion evidence” regarding Kuenzli’s character for violence; they could not present the critical specific acts that formed the basis of the opinions. For instance, Judge Hamblen testified that Kuenzli had a “capacity to do bodily harm” and a propensity for aggression and violence, but could not describe why Kuenzli was one of the most dangerous and bizarre human beings he had ever met. [R.T. 5/16/06, 63-78] Stephanie Quincey, a labor lawyer from Phoenix , was stopped, literally mid-sentence, from offering her “opinion” that Kuenzli was an unstable and aggressive person “that was capable of violence.” [ 5/23/06 , 20-21]. Ms. Quincey’s testimony that she would only meet Kuenzli at the courthouse because she was afraid of him was “stricken” as evidence in the case. Id. Jury question 81 concerning whether or not Kuenzli actually injured anyone was not asked by the trial court. [ Id. , 132.]

The trial court, however, allowed Kuenzli’s “prior good acts.” In response to juror questions and over Defense objections, Barbara Brenkey testified that Kuenzli was happy when he picked up the dogs on the day of the shooting and was looking forward to exercising them. As a “volunteer”, he was very responsible and took good care of the dogs. [R.T. 5/5/05 , 100-03]

Judge Moran refused to allow the Defense to obtain, review and analyze Kuenzli’s mental health records. [M.E. 2/7/06 ; I.R. 121; R.T. 12/12/05 , 137-39]. He ruled that Kuenzli’s mental state was not in “issue” and, therefore, even discovery into his mental instability would not be allowed. Dr. Steven Pitt, an experienced psychiatrist, was not allowed to testify regarding Kuenzli’s pertinent character traits or the way humans respond to critical traumatic situations. [M.E. 2/7/06 ; I.R. 121]. Judge Moran similarly precluded Dr. Pitt’s psychiatric assessment of Grant Kuenzli. [R.T. 12/12/05 , 16-99]. Dr. Pitt analyzed numerous affidavits of historical events to determine Kuenzli’s pertinent character traits, including his explosive temper, intense anger, paranoid ideation, irritability, inability to accept responsibility for his dogs, etc. Judge Moran precluded Pitt’s testimony in its entirety. [M.E. 2/07/06 , 7 (mental traits of Kuenzli); 5/11/06 , 3-4 (fight or flight) Appx. 12].

Judge Moran allowed all questions before the grand jury relating to gun ownership and practices as long as they related to events that occurred or guns that were possessed within the three years. [R.T. 5/10/06 , 14]. The Defense repeatedly objected to questioning about guns and ammunition, including a “continuing objection”. [ Id. , 15-26].

Prior to trail, the court granted the State’s motion to preclude evidence of the screwdriver found in Kuenzli’s back pocket [M.E. 5/11/06 , 4; I.R. 299]. The court found it “not relevant to the victim’s motivations or intentions.” [M.E. 3/30/06 ; I.R. 200].

Judge Moran rejected Fish’s request to submit “habit” evidence that Kuenzli reflexively reacted violent to anyone whom interfered with his dogs. [M.E. 3/30/06 ; I.R. 200]. Similarly, the court granted the State’s motion to preclude “character evidence” of the dogs that attacked Fish. [M.E. 3/30/06 ], despite substantial evidence that dogs were aggressive and vicious. [see e.g. R.T. 5/5/06 , 53-54; 88-90; 195-96]. The trial court utilized Evidence Rules 404, 406, and 608 to guide its ruling on the dogs. The court noted that the Rules were designed to apply to people, not dogs. Still, the Defense was once again limited to “opinion or reputation” evidence [M.E. 3/30/06 ; I.R. 200]. Judge Moran also allowed the State to present “opinion and reputation” evidence about the dogs up to 90 days after the shooting. [R.T. 2/23/06 , 123-33; 3/30/06 , 197-207]. In addition, as with Kuenzli, the State managed to elicit testimony regarding the dogs subsequent “good” specific acts.

Kevin Horn testified as the medical examiner for the State, offering his opinion that the wounds were consistent with defensive injuries. The Defense had previously moved to preclude the testimony as speculative, because it was not supported by a reasonable degree of medical probability. He could have termed the wounds as “offensive” as easily as “defensive”. Dr. Horn’s opinions were allowed and were heavily relied upon heavily by the State in closing argument. [M.E. 4/20/06 , 1-2; I.R. 247] Horn also testified that the drug Effexor was present in Mr. Kuenzli’s blood at a concentration of 333 nanograms per milliliter of blood. [ Id. , 52-53]. The parties stipulated to the admission of Exhibit 180, which confirmed that someone can become agitated or confused even on a therapeutic dosage of Effexor. [ Id. , 90.]

The testimony of Detective Scott Feagan, the initial lead investigator in the case, who concluded Fish acted in self-defense, was severely limited by the court. Jurors specifically asked Feagan if his investigation substantiated whether or not Fish’s life was in danger, but the question was refused. [ Id. , 75]. Then, the jurors asked whether or not anything other than Kuenzli’s angry demeanor would have scared Fish. Once again, the Court declined to allow Feagan to answer the question. [ Id. ]. The jurors also asked if it was normal protocol for someone who admitted shooting another person to spend the night at a motel, but Judge Moran refused to allow Mr. Feagan’s answer to the question. [ Id. , 78]. The tape recorded interview between Feagan and Fish was admitted as Exhibit 304. The transcript was admitted as Exhibit 305. [R.T. 5/16/06 , 21]. [Appx. 1].

Anthony testified about the protocols of concealed weapon (“CCW”) training. An ex-cop and attorney, Anthony helped draft Arizona ’s concealed weapons statutes, served on the Review Board for use of force by the Phoenix Police Department, and contributed to numerous publications.

Anthony, like Dr. Pitt, was precluded from testifying about training that relates to reaction under stress for people facing a traumatic situation. Anthony attempted to testify that police officers are trained with the same principles in the CCW course, but objections by the State were sustained. The witness could not refer to any police training. [ Id. , 34-37]. The ruling by the Court was problematic because the same principle applies to police officers as well. See. A.R.S. §§13-405, 410. In response to juror questions, Mr. Anthony testified that hollow-point bullets are widely used. [ Id. , 102-04]. The Federal Hydra-Shok bullet is a common self-defense cartridge. [ Id. , 106].

The jury asked questions about whether or not it is ever appropriate to use deadly force against an unarmed man. Anthony stated that one must examine the totality of the circumstances, but the Defense’s question about whether or not it is permissible to use deadly force against an unarmed man in varying circumstances was not allowed. [ Id. , 120-22]. Yet, the State was able to emphasize the “fact” that someone is “unarmed” is an important factor. The inference being that the shooting of an unarmed person could not be justified.

Cornish testified that he took over as a lead investigator after Feagan resigned. [R.T. 5/23/06 , 31-36]. The Court refused to allow Cornish to confirm that Anthony’s testimony about CCW training was correct. [ Id. , 36]. Cornish did admit, however, that he had been instructed by the Coconino County Attorney’s Office not to investigate Kuenzli’s background or reputation for violence. [ Id. , 39]. In response to juror questions, Cornish testified that it is common practice to investigate the decedent, even when the two parties involved in the shooting did not know each other. [ Id. , 60]. Cornish admitted that Fish’s character was investigated. [ Id. , 61].

Wells testified that he did not believe that they were any “problems, issues or deficiencies” with Feagan’s investigation. Nevertheless, he was asked by the Coconino County Attorney’s Office to remove Feagan from the case. The two agencies held a meeting on June 10, 2004 . The Sheriff’s Office informed the County Attorney ’s Office that Feagan was competent and they refused to remove him from the case. However, Feagan then voluntarily removed himself from the case. [ Id. , 73-75].

Fish’s wife Debora testified that Fish and his family owned several dozen guns and that Fish typically carried a gun while he was hiking. [ Id. , 126]. On cross-examination, Debora was asked if when honesty and loyalty are in conflict “to be loyal to someone, you might have to fudge the truth a little bit?” [ Id. , 135]. An objection to the question was sustained. However, Debora later stated that honesty would come first. Although the State insinuated that honesty and loyalty were in conflict, the Court precluded the Defense from asking Debora if they were in conflict. [ Id. , 157]. The State emphasized the supposed “conflict” in closing argument.

The law in Arizona on self-defense changed in the beginning of Fish’s trial because of his case. Tragically, Mr. Fish did not benefit from the change in the law caused by his case because the law was enacted as an “emergency measure, rather than retroactively”. The law was intended to and should have applied to Fish’s case. See, Garcia v. Browning, 214 Ariz. 250, 151 P.2d 533 (2007)(Senate Bill 1145 became effective on April 24, 2006 , prior to the end of Fish’s trial).

Closing arguments occurred on June 12, 2006 . The State emphasized that an honest belief on the part of Fish that deadly force was appropriate is “immaterial”. [R.T. 6/12/06 , 69-70; R.T. 6/12/06 , 12:10 p.m. , 111]. The State stressed “defensive” wounds that were suffered by Kuenzli, according to Dr. Horn. [ Id. , 73, 99; R.T. 6/12/06 , 12:10 p.m. , 110-11.] The State argued that the “circumstantial evidence” of defensive wounds, as interpreted by Horn, is “just as good as direct evidence”. [ Id. , 74]. The State forcefully argued, based upon the opinion of Dr. Horn, that Kuenzli “was attempting to defend himself against not one, but two shots”.” [ Id. , 75]. The State described the defensive wounds as a matter of “forensic science”. [ Id. , 73].

The State argued that Kuenzli did not present “reasonably apparent deadly force” to Fish because there was “nothing in either hand.” [ Id. , 88]. The State accused Fish of making up the story about Kuenzli in order to justify the shooting. [ Id. , 76-98]. It argued that Fish was desperate and lied. Prosecutor Lessler admitted that he has similarly lied when faced with desperate situations in his life. [ Id. , 91].

Although Mr. Kuenzli’s mental state was supposedly not an issue, the State argued that Kuenzli was simply “coming to get his dogs” when he was shot by Fish. [R.T. 6/12/06 , 12:10 p.m. , 5]. Evidence of the presence of the screwdriver would have more objectively and honestly allowed the jury to evaluate Kuenzli’s intent but this was not allowed. The State expressly argued that Kuenzli was “unarmed”. [R.T. 6/2/06 , 12:10 p.m. , 22, line 23.]

The State then turned to the dogs and argued “[w]e’re not here because Fish fired a warning shot at the dogs, we’re here because he didn’t fire a warning shot at Mr. Kuenzli.” [ Id. , 12]. The State emphasized that it was Fish’s “burden of proof” to establish self-defense for a reasonable person, not Fish. [ Id. , 20]. The State argued that Fish used “more force than a reasonable person would use under the same circumstances”. [ Id. ].

After legally burying the screwdriver in Kuenzli’s back pocket, the State argued that Fish was not entitled to use deadly force even though he was following the protocol learned in a CCW course. [ Id. , 22]. The State effectively argued that Fish used excessive force by not giving a warning shot to Mr. Kuenzli, who represented the same type of threat as the dogs. According to Mr. Lessler:

Same distance, serious threat, but yet what does he do? He fires a warning shot at the dogs, but no warning shot at Mr. Kuenzli.

The State was also able to argue that “even though retreat is not a specific requisite to using self-defense, it is a consideration that you may think about and factor into your deliberations and determine whether Fish acted reasonably under all the circumstances. I suggest to you that there were a number of alternatives that a reasonable man might have considered pursuing.” [ Id. , 30]. The State then argued that Kuenzli was coming fast down a rocky slope and that Fish “could have stepped aside.” Lessler continued: “Has he proved to you that it more likely than not that he couldn’t have shuffled up the side of the hill, turned around on Mr. Kuenzli and point 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?” [ Id. , 31].

Despite the fact that no duty to retreat or to “wing” someone exists, the State utilized Fish’s testimony before the grand jury to the effect that Fish deliberately did not simply injure Kuenzli because he was afraid of the legal consequences. [ Id. , 31-32]. The State argued that Fish was afraid that he would “get sued”. [ Id. , 32]. The State expressly argued that the right to use deadly force “to the extent that Fish did…. [is] a question of degree.” [ Id. , 33]. The State forcefully 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.” [ Id. , 33]. Based upon Fish’s extensive experience with firearms, the State argued, Fish should have shot to “wing”, not shot to stop or kill Kuenzli.

The State closed its argument by asserting that Fish had not “proved that its more likely than not that the extent or the degree of deadly force that he used was no more than was necessary in the eyes of a reasonable person. In short, he has not shown it’s more likely than not that his response was disproportionate, that it was reasoned, to use Mr. McDonald’s words, restrained as it was with the dogs.” [R.T. 6/12/06 , 12:10 p.m. , 119].

The jury returned with a verdict of guilty on June 14, 2006 . [R.T. 6/14/06 , 20, 24]. The Court found that Fish “feared for his safety and was under unusual duress or substantial duress at the time of the commission of the offense”. The Court also found in mitigation that Fish had “no criminal history”, his “public service as a teacher in the public schools in Arizona for 28 years”, “very strong family and community support” and the fact that Fish “cooperated with the authorities in the investigation of this case.” Judge Moran concluded without equivocation that Fish “is a man of moral principle and strong family ties. He has given much to the community before this tragic day.” [R.T. 8/3/06 , 156-57]. Fish “reacted out of fear and instinct when he shot and killed Grant Kuenzli”. Judge Moran concluded that the “circumstances that led Fish to kill Grant Kuenzli may be unprecedented”, but concluded that the trial court had a duty to uphold the rule of law. A request for a petition for clemency was denied. [ Id. , 159]. Fish received the mitigated sentence of 10 years in prison.

(1) Did the trial court abuse its discretion when it excluded specific acts of Kuenzli’s prior conduct?

(2) Did the trial court abuse its discretion by permitting the State to characterize Kuenzli as “unarmed?”

(3) Did the trial court err by failing to compel disclosure of Kuenzli’s medical records?

(4) Did the trial court abuse its discretion by excluding the prior behavior of Kuenzli’s dogs?

(5) Did the trial court abuse its discretion by admitting the subsequent behavior of Kuenzlis’s dogs?

(6) Did the trial court abuse its discretion by permitting Lucien Haag to testify regarding the guns and ammunition owned and used by Fish?

(7) Did the trial court abuse its discretion by excluding testimony regarding “Fight or Flight” Syndrome? [Appx. 12].

(8) Did the trial court err by admitting grand jury testimony regarding past gun ownership and use by Mr. Fish?

(9) Did the trial court err by allowing Mr. Fish to be cross-examined about warning shots, injury to Kuenzli, and brandishing a weapon?

(10) Did the trial court abuse its discretion by excluding grand jury testimony regarding Mr. Fish’s background?

(11) Did the trial court err or abuse its discretion by admitting a transcript of the grand jury testimony and presenting it to the petit jury?

(12) Did the trial court abuse its discretion by excluding testimony about the tactical disadvantage of hand-to-hand combat with an aggressor approaching from higher ground?

(13) Did the trial court abuse its discretion by excluding the physical description of the scene of the shooting?

(14) Did the trial court abuse its discretion by admitting Dr. Horn’s speculative testimony regarding “defensive” wounds?

(15) Did the trial court abuse its discretion by failing to grant a motion for new trial for jury misconduct?

(17)Did the trial court err by refusing to give several requested jury instructions?

Mr. Fish is a retired school teacher with no criminal history. Kuenzli, by contrast, had an exhaustively-documented history of rage, mental instability, violence and confrontation - - especially related to his dogs. At trial, this crucial contextual information was kept from the jury. Indeed, although Kuenzli had placed a screwdriver in his back pocket, the State argued that Kuenzli was “unarmed” with the blessing of the trial court. [M.E. 3/30/06 ; I.R. 200; R.T. 4/11/06 , 104-05]. While sanitizing information about Mr. Kuenzli, Judge Moran improperly allowed the State to cast Fish as a trigger happy gun nut.

A “substantial right” is affected by the erroneous admission of evidence, including non-constitutional error which may have had a “material affect” upon or “substantially swayed” the deliberations of a jury. Graham, Handbook of Federal Evidence, §103:1 (Thompson West 6^th Ed. 2006). The burden is on the government to show the harmlessness of the error. The conviction must be overturned if non-constitutional error occurred unless the Court can confidently conclude that the error did not affect the trial court deliberations with “fair assurance”.

U.S.

v. Brooke, 4 F.3d 1480, 1487-88 (9^th Cir. 1983). As noted by Professor Graham, “the Supreme Court itself seems to be moving toward the ‘guilty as hell test’. [ Id. §103:1, n. 8] In other words, the wrongful admission of evidence requires reversal unless the disputed evidence had no meaningful influence on the jury’s decision. The erroneous admission or exclusion of evidence falls under and abuse of discretion standard. State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208 (1983).

The denial of discovery of Kuenzli’s mental health records is a question of law subject to de novo review. Austin v. Alfred, 163 Ariz. 397, 399, 788 P.2d 130, 132 (App. 1990). The admissibility of expert testimony is generally reviewed for abuse of discretion, but may be a question of law or logic. State v. Speers, 209 Ariz. 125, 129, 98 P.3d 560, 564 (App. 2004). The failure to give a requested jury instruction is generally reviewed for abuse of discretion, but a deficient jury instruction leading to a conviction constitutes fundamental error. State v. Johnson, 205 Ariz. 413, 417, 72 P.3d 343, 347 (App. 2003). A defense “theory of the case” instruction raises a constitutional issue of due process and the right to a complete defense. The admission of exhibits for jury deliberation is reviewed de novo. State v. Nieto, 186 Ariz. 449, 456-571, 924 P.2d 453, 460-461 (App. 1996). The denial of a motion for new trial is reviewed for abuse of discretion. State v. Rutledge, 205 Ariz. 7, 10, 66 P.3d 50, 53 (2003).

Fish offered several specific prior acts of Kuenzli, as well as reputation and limited opinion evidence, that Kuenzli was a violent and aggressive person, especially in matters relating to his dogs. The court allowed opinion and reputation testimony, but precluded specific acts. The specific act evidence was relevant and was essential to prove that Kuenzli (1) was the initial aggressor; (2) intended to harm Fish; (3) had a motive to attack Fish; and (4) to corroborate Fish’s account of Kuenzli’s violent and threatening conduct. Examples of this evidence were set forth in the affidavits attached to Fish’s Response [I.R. 66, Appx. 1-7] and included the following:

a. Four security guards, with 63 collective years of law enforcement experience, contacted defense counsel to describe Kuenzli's bizarre behavior regarding his dog on two separate occasions. (Affidavits of John Boylan, Placido Garcia, Steve Corich & Lynn Bray, Appx. 2). These witnesses described Kuenzli's unstable appearance, his aggressive tone of voice, and their inability to reason with him over something as simple as keeping his dog on a leash. Not once, but twice, they prepared for what they believed was an imminent physical attack. Security staff was instructed to allow Kuenzli to violate campus rules by allowing his dog to run wild, rather than risk a future confrontation.

b. Various records were found in Kuenzli's automobile documenting other bizarre, aggressive behavior also focused around his dog. For example, Kuenzli’s dog snapped at a person at the security table at Justice Court when Kuenzli attempted to enter through court security with his dog. When Kuenzli was told that he couldn't bring his dog into the courthouse, he stormed away and threatened a lawsuit against the judge. (Affidavit of Clayton Hamblen, Appx. 3). The judge described Kuenzli as one of the three most disturbing people he met during his 13 years as a Justice of the Peace.

c. When officials at Banner Health complained about Kuenzli bringing his dog to the workplace and leaving him in a car, Kuenzli sued Banner Health. Stephanie Quincey, the attorney for Banner Health, was so terrified of Kuenzli that she would only meet with him at the federal courthouse, and only after he had cleared the security scanner.

d. In an aggressive driving incident two months before his death, Kuenzli refused to allow a truck driver of a fully-loaded truck to pass on a downhill grade. (Affidavit of Stephen James, Appx. 4). After nearly running the truck off the road, Kuenzli confronted the trucker ten miles later at a convenience store. Kuenzli aggressively approached the trucker “waving his arms in a spastic like motion,” yelling “you were trying to kill us, you’re in big trouble now.” Id. at 2. The trucker was very intimidated by Kuenzli, even though they were the same physical size, and never took his eyes off Kuenzli, fearing a personal and violent attack. After inspecting Kuenzli’s vehicle while he was in the store, the trucker realized that when Kuenzli accused him of trying to kill “us,” Kuenzli was referring to himself and his dog. The dog (and a large poster of the dog) were on the passenger side where Kuenzli claimed the vehicles had sideswiped.

e. Residents at Kuenzli’s apartment complex were also very fearful of him. (Affidavits of Ernest Jurado & Doug Hopkins, Appx. 5). One man, whose small dog was attacked by Kuenzli’s large dog while off leash at the apartment complex, picked up his dog and yelled at Kuenzli to get his dog under control. Kuenzli became irate, cursed and yelled at the man, then bumped him in the chest twice and shoved him. After the incident, Kuenzli stalked and threatened the man until he was forced to ask the apartment manager to call the police. On the day Kuenzli was finally evicted due to numerous complaints from residents, the man’s car was vandalized and damaged.

f. A Fire Marshal terminated Kuenzli’s employment due to numerous problems involving his quick temper, irate behavior when confronted and disregard for rules, including his refusal to stop taking his dog with him in the government van. (Affidavit of Ernie Encinas, Appx. 6). Fire department personnel, including the Marshal, were fearful of Kuenzli, and changed all locks after his termination. Years later, the Marshal was shocked and extremely frightened when he was being transported for surgery and looked up to see Kuenzli as the hospital orderly. The Marshal covered his face so Kuenzli would not see him and explode while transporting him on the gurney.

g. While he volunteered for a different fire department, Kuenzli befriended a woman whose husband died shortly after they moved to the United States from Columbia . (Affidavits of Rocio Campos DeChavarriaga and Santiago DeChavarriaga, Appx. 7). Kuenzli soon became extremely controlling and terrorized the woman and her nine year old son for 1 ½ years through acts and threats of violence, stalking, harassment, entering their home without permission, and kidnapping. Kuenzli would not relent even in the face of several restraining orders. On one occasion, Kuenzli violently attacked and almost killed a man who came to Ms. DeChavarriaga’s home simply to assist her in obtaining a better job. (Affidavit of John Gill, Appx. 8).

In granting the state’s motion as to specific act evidence, the court found that Arizona courts have held that a victim’s character as an aggressive person “is not an essential element of the defendant’s defense of self defense.” [M.E. 2/7/06 ; I.R. 121,p.3]. Further, that in homicide cases where self defense has been raised, Arizona Courts have admitted evidence of specific acts of violence by a decedent only when the defendant was aware of those acts or was aware of the decedent’s reputation before the killing.” [ Id. ] The court found that it is “clear from the reading of Arizona cases and the interpretation of the rules cited that any specific act or evidence of prior aggressive behavior by the victim is not relevant to the defendant’s defense of self-defense.” [ Id. ]

The evidence admissible in support of the justification defense under Arizona law was recently summarized by this court in State v. Connor, 2007, Ariz. App. LEXIS, 161 P.3d 596 (2007):

When the defendant raises a justification defense, he is entitled to offer at least some ‘proof’ of the victim’s reputation for violence. State v. Zamora , 140 Ariz. 338, 341, 681 P.2d 921, 923 (App. 1984). However, he may do so only in limited ways. The defendant may offer into evidence specific instances of violence committed by the victim but ‘only if the defendant knew of them… or if they are directed toward third persons relating to or growing out of the same transaction, or so proximate in time and place and circumstances as would legitimately reflect upon conduct or motives of the parties at the time of the affray’. Id. at 340, 681 P.2d at 923. The defendant may also offer reputation or opinion evidence that the victim had a violent or aggressive character trait. See Ariz. R. Evid. 404(a)(2) (permitting evidence of a pertinent trait of character of the victim offered by an accused; Ariz. R. Evid. 405(a) (where evidence of a character trait is admissible, such evidence is limited on direct examination to reputation or opinion evidence.

The issue that the jury must decide is whether the defendant’s actions were reasonable given everything the defendant was aware of at the time he acted. It is the defendant’s state of mind, not the decedent’s that is in issue. Whatever the decedent’s intentions or motivations were when he came at the defendant, they are irrelevant to any essential elements of the offense or defense raised. Therefore, specific acts of decedent’s aggression or violence are not relevant and not admissible…

Although the court accurately stated the traditional, general rule regarding other act evidence, it ignored the more specific rule/exceptions that apply in this context. (Discussed below). It also does not reflect the modern tendency to admit evidence of other relevant acts by the victim, and it fails to take into account the fact that at the time of Mr. Fish’s trial, he bore the ultimate burden of proof on a self-defense claim.

Under the Arizona Rules of Evidence, like the Federal Rules of Evidence, parties at trial are generally prohibited from introducing character evidence to prove that the person against whom the character evidence if offered acted in conformity with that character Ariz.R.Evid. 404. The rationale for the rule is that propensity evidence is prejudicial. See FRE 405 advisory committee notes. This is why, under both the Arizona and Federal Rules, the defendant may generally use only reputation or opinion evidence to prove the alleged victim was the initial aggressor. However, character evidence is not always propensity evidence, and propensity evidence is not always prejudicial. As such, several exceptions exist.

A defendant asserting a self-defense claim may offer character evidence under several theories.^{^[5]} The defendant may seek to establish (a) that he acted reasonably, (b) that the victim was the initial aggressor, or (c) that the victim’s character corroborates the defendant’s story.

When offered to prove the defendant reasonably feared for his safety and used a reasonable degree of force in light of the fear, character evidence is not propensity evidence – it is offered to prove the defendant’s state of mind and the reasonableness of his or her actions.^{^[6]} It is therefore admissible, but only when the defendant had knowledge of the victim’s character. State v. Connor, supra. at 601-602. Similarly, when offered to prove the alleged victims state of mind or to corroborate the defendant’s version of what occurred during the confrontation, character evidence is not propensity evidence and is admissible. Rule 404(b). Rule 404(b) only precludes evidence that is offered to show the character of a defendant to prove disposition to acts of a particular type. State v. Ramirez Enriquez, 153 Ariz. 431, 432, 737 P.2d 407, 408 (App. 1987). Evidence relevant for any purpose other than showing propensities to act in a certain way remains admissible. State v. Jeffers, 135 Ariz. 404, 417, 661 P.2d 1105, 1118 (1983) (citations omitted). If the evidence is relevant to prove a proper purpose, the trial court must determine if the probative value is substantially outweighed by the danger of unfair prejudice. State v. Dickens, 187 Ariz. 1, 19, 926 P.2d 468, 486 (1996). So long as the decision to admit the other-act evidence is supported by facts before the court, the trial court’s decision will be affirmed on appeal unless a clear abuse of discretion appears. Jeffers, 135 Ariz. at 417, 661 P.2d at 1118. See also, State v. Connor, supra, at 606.

A defendant may also offer character evidence of the alleged victim to prove that the victim was the initial aggressor.^{^[7]} This is propensity evidence – it is offered to support the inference that the victim acted in conformity with his violent character during the incident in question. However, it is admissible under Ariz.R.Evid. 404(a) (2) and Fed.R.Evid. 404(a) (2), in the form of reputation or opinion. The rationale behind this and other exceptions to the propensity evidence rule is to provide the fact finder with the most complete and informed picture of the incident in question, while still protecting the rights of the accused. See Fed.R.Evid. 404 advisory committee’s note.

Specific acts have traditionally not been admissible under this theory because, while more convincing and often times more reliable than reputation and opinion, they may arouse unfair prejudice in the jury towards the alleged victim.^{^[8]} However, specific act evidence is admissible for a variety of other legitimate purposes,^{^[9]} and the modern trend recognizes that where specific acts are highly probative, and the danger of prejudice is minimal, they should be admitted. Commonwealth v. Adjutant, 824 N.E. 2d 1 ( Mass. 2005).

In Adjutant, Massachusetts’ Supreme Court surveyed the extensive body of character evidence law and for the first time ruled that specific act evidence is admissible in Massachusetts to prove that the victim was the initial aggressor. Adjutant was charged with voluntary manslaughter after she stabbed a man to death who she claimed was attempting to sexually assault her. Id. at 3. She offered specific acts of the victim’s violence, unknown to her at the time of the incident, to prove that the alleged victim was the alleged aggressor. Id. at 3-5. The trial court, like the trial court in this case, relying on previous authority, refused to admit such evidence. Id. at 3. The jury found the defendant guilty and the appellate court affirmed her conviction. Id. The Supreme Court granted certiorari on the issue of whether the lower courts properly excluded the evidence in question. Id. at 6.

In reversing, the Massachusetts court noted that all federal jurisdictions and a vast majority of states now allow character evidence of an alleged victim’s violent character to prove that the victim was the initial aggressor. Id. at 6-7. The court explained that such evidence is highly probative and that the threshold for the admission of any evidence is low. Id. at 8-9. The court then considered the form such evidence should take. Id. at 11. Citing the heightened reliability of specific act evidence over reputation evidence, the court stated that it preferred the “concrete and relevant evidence of specific acts over more general evidence of the victim’s reputation for violence.” Id. at 14. The court explained:

In this case, had Adjutant offered the testimony of Whitings’ neighbors that Whiting was known to be a violent man, without the corroborating details of the victim’s specific acts, such evidence would have been little more than a few neighbor’s accumulated opinions. Juries should have the ability to draw their own inferences in assessing the bearing of the victim’s prior violent conduct on the probability that he was the first aggressor.

The court rejected the argument that allowing such evidence in this context would confuse the jury, pointing out that admitting specific act evidence to prove who was the initial aggressor is no different than the already established admissibility of identical evidence in the “reasonable belief/state of mind” context. Id. at 9. In “initial aggressor” cases, any potential for jury misunderstanding is outweighed by the much greater danger of prejudice to a defendant’s case. Id. at 9. The court was “persuaded that the sound discretion of trial judges to exclude marginally relevant or grossly prejudicial evidence can prevent the undue exploration of collateral issues.” Id. at 13. The court provided additional safeguards, including the limitation of specific acts evidence admissibility to self-defense cases, and the requirement that defendants to provide notice to the court and to the prosecution of their intent to introduce specific act evidence as well as the specific evidence they intend to offer. Id. at 10-11, 14.

See, also State v. Mitchell, 214 W.Va. 516, 590 S.E.2d 709 (2003)(past act evidence admissible to show victim’s violent conduct was consistent with his past acts of violence and that defendant’s apprehension for imminent fear of serious bodily harm or death was reasonable); Chandler v. State, 241 Ga. 402, 405 S.E.2d 669 (1991)(although traditionally excluded, evidence of specific acts of violence by the victim against third persons shall be admissible from this point forward where the defendant claims justification); State v. Marsh, 71 Ohio App.3d 64, 593 N.E.2d 35 (1990)(evidence of victim’s propensity for violence when intoxicated was admissible even without defendant’s knowledge of such propensity); People v. Lynch, 470 N.E.2d 1018 (Ill.1984) (evidence of prior convictions for violent offense are relevant, probative, and should be admissible to prove victim’s violent character and contemporaneous knowledge is not required under “initial aggressor” theory); People v. Mizchele, 142 Cal.App.3d 686 (1983)(evidence of specific acts of victim’s violence is admissible on issue of defendant’s credibility); see generally 15 Am. Jur. Proof of Facts 2d 167 (September 2005); People v. Wright, 703 P.2d 1106, 1113 ( Cal. 1985) (allowing specific acts of victim on third persons as well as general reputation evidence in a self-defense case); State v. Smith, 608 A.2d 63, 72 ( Conn. 1992) (allowing general reputation evidence and victim’s convictions for crimes of violence).

As noted by Judge McClennen, even in Arizona the modern test is to allow other act evidence and to rule on the side of inclusion, rather than excluding, unless some exception applies. See McClennen , Arizona Courtroom Evidence Manual (3^rd Ed.) Sec. 404. McClennen notes that older cases dealing with the admissibility of specific act evidence that describe it as an “exception” to the general rule prohibiting other act evidence to prove character do not accurately reflect the proper analysis under the rules of evidence which is as follows:

“Rule 402 precludes admission of evidence of other crimes, wrongs, or acts only if such evidence is offered to prove character, but allows admission of such evidence.”

The proper inquiry is whether the other act evidence is relevant and is not offered for an improper purpose. Id.

Judge Livermore also acknowledges this shift, noting that under the modern general rule, evidence of other crimes, wrongs or acts is admissible when offered for any relevant purpose other than to prove the character of the person. See M.Udall & J. Livermore , Arizona Practice: Law of Evidence 84 at 178 (2^nd ed. 1982). (emphasis added). Arizona courts have adopted this modern approach particularly with regard to evidence of the victim’s other crimes, wrongs or acts. See State v. Oliver, 158 Ariz 22, 28, 760 P.2d 1071, 1077 (1988)(evidence of sexual assault victim’s other acts admissible if offered for any relevant purpose other than showing the victim acted in conformity therewith); State v. Castro, 163 Ariz. 465, 788 P.2d 1216 (App. 1989)(same); State v. Plew, 155 Ariz. 44, 745 P.2d 102 (1987)(evidence of victim’s cocaine habit admissible if offered to show victim was the aggressor).

State v. Williams, 141 Ariz. 127, 685 P.2d 764 (App. 1984), and the other specific acts cases relied on by the trial court, are inapposite because they predate substantial changes in Arizona evidentiary law. In 1997, the Legislature shifted the burden of proof for a justification defense to the defendant. See A.R.S. § 13-205 (affirmative defenses; burden of proof). Prior to 1997, that burden rested with the State.^{^[10]} Under the pre-1997 law, once a defendant made a prima facie showing of justification, the State then had the burden of proving that the shooting was not justified beyond a reasonable doubt. See, e.g., State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984); State v. Walters, 155 Ariz. 548, 748 P.2d 777 (App. 1987). Under the law in effect at the time of Fish’s trial, he had to prove that his actions were reasonable, that Kuenzli's acts of aggression were “illegal,” and led him to believe that deadly physical force was necessary. He further had the burden to show that force was immediately necessary to protect himself. See State v. Casey, 205 Ariz. 359, 71 P.2d 351 (2003); State v. Sierra-Cervantes, 201 Ariz. 459, 37 P.2d 432 (App. 2001). The legal landscape had transformed, rendering the pre-1997 authority inapposite.

A defendant’s constitutional right to present a complete defense may be violated by a rule limiting the admissibility of evidence. Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 163 L. Ed.2d 1147 (2006); State v. Gilfillan, 196 Ariz. 396, 998 P.2d 1069 (App. 2000); California v. Trombetta, 467 U.S. 479 (1984); see also State v. Melendez, 172 Ariz. 68, 834 P.2d 154 (1992). This is especially crucial where, as here, the defendant bears the ultimate burden of proof. In any self-defense case, the jury should have “as complete a picture of the (often fatal) altercation as possible before deciding on the defendant’s guilt.” Adjutant, supra at 9. Judge Moran’s decision to exclude specific acts evidence deprived Fish of his fundamental right to present a full defense. See also Davis v. Alaska, 415 U.S. 308 (1974); Ferguson v. Georgia, 365 U.S. 570 (1961).

Rule 404(b), Ariz.R.Evid., provides that evidence of other crimes, wrongs or acts is admissible “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Thus, even traditionally, although other act evidence is generally inadmissible under Rule 404(b) to show action in conformity therewith, it is admissible for other purposes.

Evidence of Kuenzli’s prior specific acts of violence and aggression in other situations where he perceived that his dogs were in danger should have been admitted in order to prove his intent and/or motive when he charged Fish while screaming that he was going to kill Fish for having fired his gun at the dogs. In other words, specific act evidence of prior situations where Kuenzli responded to a perceived threat to his dogs with violence and aggression should have been admissible in order to prove his intent and/or motive when he assaulted Fish. See State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994) (Evidence that defendant had assaulted a person he thought stole his property was relevant to show his later intent to kill a second person once he learned that the second person was the one who actually stole his property); State v. Hines, 130 Ariz. 68, 633 P.2d 1384 (1981) (Prior possession of similarly packaged marijuana was admissible on the issue of intent and knowledge in a later prosecution for possession of marijuana). Similarly, prior acts of Kuenzli, including his prior assaults on other persons and his attempted suicide, should also have been admissible in order to show that Kuenzli was the initial aggressor and/or that he had the intent or motive to assault Fish and may also have been attempting to end his own life when he charged at Mr. Fish knowing he was armed with a pistol. See State v. De Piano, 187 Ariz. 41 926 P.2d 508 (App. 1995), overruled on other grounds in State v. Davis, 206 Ariz. 377, 79 P.3d 64 (2003). (Evidence that a woman had wrongfully taken money from her ex-boyfriend’s bank account was admissible to show she was sufficiently depressed over her financial condition to be suicidal where the issue was whether she had intended to kill herself and her two children). See also State v. Salman, 182 Ariz. 359, 897 P.2d 661 (App. 1994) (Defendant’s prior act of pointing gun at a person to help a friend was admissible to show defendant’s intent in later firing bullets at a home of another person who had angered one of the defendant’s friends); State v. Curiel, 130 Ariz. 176, 634 P.2d 988 (App. 1981) (Evidence of prior sale of narcotics under similar circumstances admissible on issue of possession with intent to sell and prosecution of possession of narcotics for sale).

Evidence of Mr. Kuenzli’s prior acts of aggression and violence directed at people he perceived threatened his dogs should also have been admitted to rebut the State’s claim that Kuenzli was simply rushing towards Fish to retrieve his dogs at the time he was shot. Specifically, the State argued that Kuenzli’s intent in rushing forward at Fish was simply to recover his dogs. [R.T., 6/12/06 , p.5,1.7 (closing argument); R.T., 4/20/06 , P.28, line 5-16 (opening argument)]. Even if Kuenzli’s state of mind was not initially relevant, the State opened the door to his state of mind when they made this argument to the jury. See State v. Alvarez, 145 Ariz. 370, 701 P.2d 1178 (1985) (Defendant’s attorney argued that evidence showed that burglar was familiar with victim’s home and therefore must have known victim; State permitted to argue that “good crook” could have gained knowledge of victim’s home while waiting for victim to return home); State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996) (One defendant claimed his lack of prior felony record was a mitigating factor, evidence that he once assaulted a group of students with a handgun was properly admitted as rebuttal to this mitigation once defendant “opened the door”); State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996) (Evidence defendant was several months in arrears on child support payments was relevant to rebut in his opening statement which implied that he did not need money at the time the murders were committed).

Finally, the details of Kuenzli’s prior acts of violence and aggression should also have been admitted in order to confirm Fish’s credibility and to corroborate his statements about how Kuenzli attacked him, threatened to kill him and caused him to reasonably fear he was in imminent danger of physical injury or death. State v. Lindsey, 149 Ariz. 493, 720 P.2d 94 (App. 1985) (Evidence that the defendant previously took nude photographs of several other girls corroborated the victim’s testimony that the defendant took nude photographs of her) vacated in part on other grounds. 149 Ariz. 472, 720 P.2d 73 (1986); State v. Crum, 150 Ariz. 244, 722 P.2d 971 (App. 1986) (Testimony that defendant showed the victim pornographic magazines while they engaged in sexual activity made the magazines relevant and admissible as evidence to corroborate the victim’s testimony).

The prior act evidence showed that, time and time again, when Kuenzli was confronted in any way, particularly in situations involving his dogs, he became aggressive and dangerous. This evidence demonstrated a clear pattern in which Kuenzli’s manic attachment to his dogs resulted in a motivation to protect the dogs’ freedom of movement at any cost and an intent to retaliate against anyone who he perceived as a threat to that freedom. These incidents illustrate a pattern of conduct which demonstrates Kuenzli’s motivation and intent to harm anyone he viewed as a threat to his dog[s]’ safety and/or freedom of movement. The prior act evidence strongly supports the reasonableness of Fish’s belief that deadly force was immediately necessary to prevent Kuenzli from causing Fish serious bodily harm or death.

The State moved in limine to preclude evidence that Kuenzli had placed a screwdriver in his back pocket prior to attacking Fish. 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 the Fish’s “mental state or the defense of self-defense.” [I.R.200, 47]. The court also concluded that the “existence of the screwdriver is not relevant to the victim’s motivations or intentions.” [ Id. ]

Rule 401, Ariz. R. of Evid., defines relevant evidence as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 provides that all relevant evidence is admissible. The evidence does not have to be sufficient to support a finding of fact in a case, rather, it is a minimal test that need only have “any tendency” to make an inference of fact more likely than not. Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 733 P.2d 1073 (1987); Rossell v. Volkswagen of America , 147 Ariz. 160, 709 P.2d 517 (1985).

A screwdriver is without question, a deadly weapon. See A.R.S. §13-3101;

U.S.

v. Lavender, 224 F.3d 939, 941 (9^th Cir. 2000). (“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.”). Evidence that Kuenzli was armed with a screwdriver, which could be used as a deadly weapon, is relevant and should have been admitted as evidence of Kuenzli’s motive and present ability to inflict serious bodily harm or death on Fish during the attack. The mere fact that Fish did not see the screwdriver is not dispositive. Clearly, evidence that Kuenzli had a loaded handgun tucked into the back of his pants would have been admissible evidence of his motive, intent and present ability to harm Fish. Moreover, while the parties could have argued whether or not Kuenzli intended to use the screwdriver as a deadly weapon or not, the jury should have been made aware that he had the ability to do so. In addition, the fact that Kuenzli chose to conceal a screwdriver in his back pocket prior to attacking Fish, was a fact that jury should have been allowed to consider. See State v. Fowler, 101 Ariz. 561, 422 P.2d 125 (1967); State v. Waldrop, 111 Ariz. 84, 523 P.2d 781 (1974). Due process requires that a defendant receive a “meaningful opportunity to present a complete defense.” Holmes v. S.Carolina, 547

U.S.

319, 126 S.Ct. 1727, 1728, 164 L.Ed. 2d 503 (2006) quoting Crane v. Kentucky, 476

U.S.

683, 690, 106 S.Ct. 2142, 90 L.Ed. 2d 636 (1986). In this case, where Fish’s only defense was that the shooting was justified, he should have been allowed to present evidence of the mental state exhibited by Kuenzli, whether Kuenzli was armed with a weapon from which he might have been able to inflict death or serious physical injury on Fish, any evidence of Kuenzli’s motive or intent in attacking him, and that Kuenzli was in fact the first aggressor. These issues have long been recognized as central components of the justification defense in Arizona .

“…the accused testified that deceased fired upon him before accused made any demonstration toward deceased. It was for the jury to determine from all the facts and circumstances tending to throw light upon the question, the truth in that respect. The mental state exhibited by deceased, shortly prior to the affray, whether deceased was armed with a weapon from which he might have fired a shot at the accused, anything he might have said concerning the accused, or expression of his intention in the future carrying out of threats made, if he made threats, and such like matters would tend to throw light upon what subsequently took place and which of the two combatants was the aggressor, and from which and other facts and circumstances in evidence, the jury could more accurately arrive at the guilt or innocence of the defendant. …

The mental state of the deceased, as exhibited by threats made by him, are circumstances properly to be considered by the jury in determining who was the aggressor, and the probability or improbability of the claim of the accused. … to reject such evidence so tending to explain the acts of defendant is equivalent to denying to defendant a right to a defense given him by law in a case where the commission of a homicide by the defendant is proven, or as here, admitted.”

Even if the court was correct in precluding evidence that Kuenzli was armed with a screwdriver, it erred when it allowed the state to open the door and characterize Kuenzli as “unarmed.” [R.T., 4/19/06 , 104-105 (court’s ruling); See also R.T., 4/20/06 , p.14, line 22-23 (State’s Opening Statement); R.T., 5/19/06 , 122 (questioning by State’s attorney); R.T., 6/2/06 , 12:10 p.m. , p.22, line 23 (State’s Closing Argument)]. In response to the court’s decision allowing the State to claim that Kuenzli was unarmed, defense counsel requested the following clarification:

MR. McDONALD: So in other words, your Honor, are you saying you are going to allow him to tell the jury that Kuenzli was unarmed when we all know in this courtroom that he had a screwdriver which can be and is definitely a weapon if used as such.

MR. McDONALD: Judge, with all due respect, I think that is a fundamental reversible error if you allow it.

THE COURT: Well, I guess I’ll be reversed then on the earlier ruling which says the screwdriver is not relevant, so at least I’m being consistent.

While the mere fact that Kuenzli had the ability to access and use a dangerous weapon may have been excluded because Fish was unaware of the screwdriver at the time of the shooting, the false characterization of Kuenzli as “unarmed” affirmatively misrepresents the evidence in a way which seriously prejudiced Fish. Rule 403, Ariz. Rules of Evid. precludes otherwise relevant evidence if its probative value is substantially outweighed by unfair prejudice. Allowing the state to characterize Kuenzli as “unarmed” when he attacked Fish not only misrepresents the truth but introduces affirmatively the claim that Kuenzli was unarmed when, in fact, he had concealed a screwdriver in his back pocket. The probative value of allowing the State to misrepresent Kuenzli as “unarmed” is substantially outweighed by the unfair prejudice to Fish.

Finally, the State’s intentional mischaracterization opened the door and Fish should have been allowed to rebut the false claim with evidence of Kuenzli’s possession of the screwdriver.

The court precluded evidence of Kuenzli’s mental illness and related medications based on its earlier finding that Fish was unaware of Kuenzli’s history of mental illness prior to the shooting.

Generally speaking, justice dictates that a defendant “is entitled to the benefit of any reasonable opportunity to prepare his defense.” State v. Tyler, 149 Ariz. 312, 314, 718 P.2d 214 (App. 1986). Even if the mental health records contained information about Kuenzli’s prior specific acts of violence or aggression, and that evidence was properly precluded, the court nevertheless erred when it granted the State’s motion in limine because those same mental health records would necessarily contain the identity of additional opinion and reputation witnesses who could testify concerning the Kuenzli’s character and reputation for violence and aggression. The mental health records therefore should have been discoverable because they bore directly upon the issue of the Kuenzli’s character and reputation in the community as a violent aggressive and unstable individual. The defense, based upon a review of the mental health records, would have discovered additional witnesses or information that would have led them to witnesses who would have had an opinion about the Kuenzli’s character and reputation as a violent or aggressive person. When the defense of self defense is raised by a defendant, this type of character evidence is both relevant and admissible. See State v. Zamora , 140 Ariz. 338, 340, 681 P.2d 921, 922 (App. 1984); State v. Birdsall, 116 Ariz. 196, 568 P.2d 1094 (App. 1977).

In State v. Griffin, 99 Ariz. 43, 46-47, 406 P.2d 397 (1965), the court concluded that the trial court had improperly excluded evidence of the reputation of the deceased for violence and aggression while intoxicated even though the defendant was unaware of such traits. The Griffin court wrote:

“It is the rule that where it is questionable as to which was the aggressor, or where the state of mind of defendant at the time of the affray is in issue under the claim of justification, that the general reputation of the deceased as a dangerous, turbulent and violent man may always be shown … the trend … of the more recent decisions appears to be in the direction of allowing to go before the jury evidence of particular acts of violence and turbulence by the deceased toward third persons when such acts may legitimately and reasonably be of aide to the jury in determining whether defendant’s claim of self defense was bonified and rooted in an honest belief of impending danger at the time he acted.”

In this case, the trial court itself concluded that opinion and reputation evidence of Kuenzli’s aggression or violence was in fact relevant “on the issue of who was the initial aggressor in the confrontation, and because it could corroborate the defendant’s perceptions of the danger he faced that day.” [See I.R. 121, 6]. Nevertheless, the court precluded the defense from obtaining the mental health records and identifying additional witnesses who could offer opinion testimony about Kuenzli’s reputation for violence and aggression, including the mental health professionals who treated Kuenzli.

In Arizona , a defendant may present evidence of a trait of a victim’s character “by testimony as to reputation or by testimony in the form of an opinion”. Ariz. R. Evid. 405. Nevertheless, pursuant to the physician-patient privilege, this Court has recently concluded:

[A] defendant may not seek to establish a victim’s character trait through the testimony of the victim’s doctor or psychologist, or by using the victim’s medical records without the victim’s consent. A.R.S. §13-4062(4)(2002) (“a person shall not be examined in the following cases: a physician … without consent of the physician’s patient, as to any information acquired in attending the patient which was necessary to enable the physician … to prescribe or act for the patient”); A.R.S. §32-2085 (2002) (“unless the client waives the psychologist-client privilege in writing or in court testimony, a psychologist shall not … divulge information that is received by reason of the confidential nature of the psychologist’s practice”) Once the privilege attaches, it prohibits “not only testimonial disclosures in court but also pretrial discovery of information within the scope of the privilege”. Bain, 148 Ariz. at 333, 714 P.2d at 826. Thus, a defendant cannot seek to use either the testimony of the victim’s doctors or the doctor’s medical records to provide either an opinion as to the victim’s character trait, or to establish a reputation for such a trait.

Although this Court ruled that, under the facts presented in Connor, the defendant was not entitled to discovery of the medical records of the victim, Id. at 601, our Supreme Court has previously held that “if a trial court excludes essential evidence, thereby precluding a defendant from presenting a theory of defense, the trial court’s decision results in a denial of the defendant’s right to due process that is not harmless.” State ex.rel. Romley v. Superior court (Roper), 172 Ariz. 232, 236, 836 P.2d 445 (App. 1992), citing Oshrin v. Coultier, 142 Ariz. 109, 111, 688 P.2d 1001, 1003 (1984).

In Romley, this Court found, in another medical records case, that a defendant’s due process rights to discover evidence necessary to present his theory of defense prevail over both the stationary physician patient privilege and Arizona ’s Victim Bill of Rights.

If the medical records have not been made available to the prosecution (or any agent of the state such as law enforcement officers), then the victim has the right to refuse defendant’s discovery request under the victim’s Bill of Rights. However, if the trial court determines that Brady and due process guarantees require disclosure of exculpatory evidence and, further, if presentation of the defendant’s theory of the case, or necessary for impeachment of the victim relevant to the defense theory, then the defendant’s due process right to a fundamentally fair trial and to present the defense of self-defense overcomes the statutory physician patient privilege on the facts as presented here, just as the due process right overcomes the Victim’s Bill of Rights on these facts. See Hospital Corp. of America v. Superior Court, 157 Ariz. 210, 755 P.2d 1198 (App. 1988).

Consistent with due process, when, as in this case, the defendant demonstrates a sufficient potential need for additional information, not in the possession of the prosecutor, the trial court should order third parties to produce it so long as, in the exercise of the court’s discretion, the defendant, (1) “has a substantial need in the preparation of the defendant’s case for material or information … and, (2) the defendant is unable without undue hardship to obtain the substantial equivalent by other means.” Ariz. R. Crim. P. 15.1(g). Moreover, in a case such as this where due process required the disclosure of the evidence, and where ordering any production of the information sought would have also infringed on the victim’s constitutional and statutory privileges, the court should also have ordered an in camera production of the materials for its review, once the defendant demonstrated that his “substantial need” for the information would, at least potentially, amount to one of constitutional dimension. State v. Connor, 161 P.3d 596, 604 (2007). Once these prerequisites were met, the trial court should have ordered the production of the sought information for its in camera review in which it could then have carefully balanced the competing rights to the information sought in context. Id. The court then would also have to carefully circumscribe the disclosure to the extent permissible consistent with the defendant’s exercise of the constitutional right to a fair trial. Id.

U.S.

v. Hansen, 955 F.Supp. 1225 ( Mo. 1997), the defendant was charged with murder and asserted that he killed the deceased in self-defense. The defendant sought the disclosure of the mental health records of the deceased on the grounds that the likely evidentiary benefit was great because the deceased’s mental and emotional conditions at the time of death was a central element in the claim of self-defense. In this case, contrary to the trial court’s ruling, the victim’s motive and intent in charging Fish and threatening to kill him was a central element in Fish’s reasonable belief that he faced the threat of another’s use or threatened used of apparent deadly force. The records should therefore have been discoverable.

The court in U.S. v. Alperin, 128 F.Supp. 2d 1251 (N.D. CA 2001) reached a similar conclusion in a case involving an alleged assault on a federal customs inspector. In Alperin, the defendant sought disclosure of the inspector’s psychiatric records. Id. at 1252. The inspector/victim objected claiming the records were privileged communications between a doctor and a patient. Id. In support of this position, the government relied heavily on Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L.Ed 2d 337 (1996). In ordering the disclosure of the records the court noted:

Jaffee does not discuss how the privilege is to be applied when a criminal defendant’s constitutional rights are implicated. At least one noted commentator has concluded that an exception to Jaffee will be established when necessary to vindicate a defendant’s constitutional rights to a fair trial. 3 Weinstein’s Federal Evidence, §504.07[9], 504-24 (2cd ed. 2000).

The Alperin court went on to conclude that “the Inspector’s mental health could be material to defendant’s claim that she began the physical altercation, …” Id. at 1255. The court went on to acknowledge the Inspector’s strong interest in keeping her communications confidential, “the potential evidentiary benefit and materiality of those records to defendant’s claim of self-defense mandates that I conduct an in camera review of the records.” Id. See also U.S. v. Haworth, 168 F.R.D. 660 (D.N.Nex. 1996)(District Court granted defendants’ motion to compel mental health records of government’s key witness but after reviewing the records in camera, concluded that the records should not be disclosed).

In Jaffee, the Court found that the important public and private interests underlying the privilege outweighed the “modest” evidentiary benefit that would likely result from denial of the privilege. Jaffee, 116 S. Ct. at 1929. Here, in contrast, the likely evidentiary benefit was great: Fish was charged with homicide and faced a possible significant loss of liberty. The mental and emotional condition of the deceased was a central element of his claim of self-defense. The holder of the privileges had little private interest in preventing disclosure, because he was dead. The public does have an interest in preventing disclosure, since persons in need of therapy may be less likely to seek help if they fear their most personal thoughts will be revealed, even after their death. See Jaffee, 116 S.Ct. at 1928-29. However, a defendant’s need for the privileged material outweighs this interest. Hansen, 955 F.Supp. at 1226. The Hansen court further recognized that the psychotherapist had standing to assert the privilege on behalf of a deceased patient but found that due process required the disclosure of the mental health records. Id.

The Iowa Supreme Court reached the same conclusion in St. v. Heemstra, 721 N.W.2d 549 (2006). In Heemstra, the defendant was charged with first degree murder and claimed he shot the victim in self-defense. Heemstra attempted to subpoena the victim’s mental health records contending that the medical records would show that the victim had character traits of “unmanageable anger, aggression and violence and that he sought and received medical treatment for those problems within months of his death.” Id. at 559. The victim’s doctor asserted the medical privilege and the trial court, after reviewing the records for evidence of direct threats against the defendant, denied the request for disclosure. Id. On appeal, Heemstra argued that he needed the records, not for the purpose of admitting them as evidence, but to further investigate the victim’s “propensity toward violence.” Id. at 561. Heemstra argued that, like Fish, his constitutional right to confront witnesses, compulsory process, and right to present a defense were all impaired by the denial of access to the medical records. Id.

The Iowa Supreme Court agreed with Heemstra and concluded that the rights of a criminal defendant must prevail over the medical privilege. In reaching its conclusion the court emphasized the fact that this was a criminal case in which the defendant was charged with murder and faced a severe penalty; the subject of the privilege was deceased; and at least some of the information about the deceased was already in the public domain. Id. The court concluded by emphasizing that “the information sought might reasonably bear on the defendant’s possibility of success in supporting his claim of self-defense.” Id.

It was also error to deny access to the medical records because they would have provided information concerning the psychiatric medications Kuenzli was supposed to be taking, the reason for the medication and the possible effects of not taking the medication. Behavior that results from a 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. R. Evid. 404(a)(2). State v. Connor, 161 P.3d 596, 603 (2007); See also, e.g. State v. Williams, 141 Ariz. 127, 130, 685 P.2d 764, 767 (App. 1984). (“Evidence of a victim’s tendency to engage in violent acts while under the influence of intoxicating liquor is properly considered character evidence”).

The court precluded any evidence of specific prior acts involving Hank and

Sheba

, the two dogs that attacked Mr. Fish. These acts include:

1. Hank’s “attempted attack” on Gila County Detective Ratliff. Ratliff’s partner Havey stated that Ratliff pulled his gun and was prepared to shoot the dog due to its vicious nature.

2. Hank was seized by animal control (Spaulding) in 2003 and 2004 and identified as a “fear biter” and “aggressive dog.”

3. Hank terrorized a neighbor (Ippolito) and chased his daughters. His owners at the time were cited for failing to control the dog.

Sheba

’s prior owner stated that the dog was aggressive and would run at people barking and growling.

[See Motion to Remand, Exhibit 1, 2/2/05 , State v. Fish CR2004-0818] (Appx. 13)

The court held that the prior history of these dogs was not known to Mr. Fish at the time of the incident and therefore, it was not relevant. The court did acknowledge that evidence of a dog’s propensity for aggression has been admitted in both civil and criminal cases. [I.R. 200, 4] However, the court concluded that because Fish was not aware of the dogs’ prior acts, the evidence of prior acts is inadmissible. [ Id. at 6].

Although, the court held that Rules 404, 406, and 608 are applicable to persons, and not dogs, it found that the dogs’ prior history was being offered to show they acted aggressively in the past and probably did so on this occasion and therefore is inadmissible (showing action in conformity with character). The court further held that this evidence of prior acts was also not relevant to the motives or intentions of the dogs. [ Id. at 5].

The specific act evidence precluded by the court in this case was especially probative of the aggressive and frightening character of the dogs and the reasonableness of Fish’s response. The proffered evidence concerning the character of the dogs that attacked Fish was not unfairly prejudicial. Evidence that is merely adverse to a party is not unfairly prejudicial. Yauch v. Southern Pacific Co., 198 Ariz. 394, 10 P.3d 1181 (2000). Unfair prejudice means an undue tendency to suggest a decision on an improper basis, such as emotion, sympathy or horror. State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993). Evidence of dogs’ aggressive character would not have had a tendency to suggest a decision on an improper basis.

The court allowed opinion/reputation evidence concerning the dogs Hank and

Sheba

for the time period preceding the incident and up to 90 days after the incident. Opinion and reputation based upon events subsequent to Kuenzli’s death were irrelevant and prejudicial and should have been excluded. ARE 401, 402, 403. see also e.g. U.S. v. Gallo, 543 F.2d 361 (D.C. Cir. 1976); U.S. v. Boyd, 595 F.2d 120 (3d Cir. 1978). Jurisdictions admitting evidence of misconduct or bad acts after the date of the incident have limited such evidence and have only allowed it only to prove intent, knowledge or common plan or scheme. There must be a temporal and logical relationship between a defendant’s later act and his earlier state of mind.

U.S.

v. Watson, 894 F.2d 1345 (D.C. Cir. 1990). The later act must be “fairly recent and in some significant way connected with prior material events.”

U.S.

v. Childs, 598 F.2d 169, 174 (D.C. Cir. 1979).

In this case, there was no logical relationship between the evidence and the incident. The trial court ruled that the dogs’ motive or intent in attacking Fish was not at issue. If the dogs’ state of mind was not an issue, the testimony concerning the dogs’ acts, reputation and opinion, months after the incident occurred was erroneously admitted.

The court improperly precluded Dr. Pitt’s expert medical testimony on the human response to critical traumatic incidents - the “fight or flight” syndrome. The court relied on Braley v. State, 741 P.2d 1061 ( Wyo. 1987) in concluding that this testimony would “not offer information beyond that ken of the average juror.”

The testimony in Braley is easily distinguished from the proffered testimony of Dr. Pitt. Braley involved a defendant who shot and killed the decedent following a verbal dispute over a parking space. The court precluded the testimony of a psychiatrist as to: whether the defendant was in fear and whether his actions were reasonable. The court held that both whether there was an assault and whether the defendant’s response was justified were within the common experience of the jury. Dr. Pitt, on the other hand, would not have been called as a fact-specific witness. Rather, he would have testified about the impact the “fight or flight” response has on a person during an especially traumatic event. Dr. Pitt would not have testified as to what was actually reasonable, he would have testified to what type of response was biologically possible. [R.T., 5/5/05 , p.53-55; I.R. 249, 3-6]. It should have been permitted. See e.g. Filomeno v. State, 930 So.2d 821 (2006); Patton v. State, 2004 Tex. App. LEXIS 5531 (2004); Warrington v. Tempe Elementary School District, 197 Ariz. 68, 71, 3 P.3d 988 (App. 1999). (In a wrongful death action, plaintiff’s expert testified that it was reasonably foreseeable that a person would react unpredictably when being attacked by another as a result of the psychological reflex known as “fight or flight” where the nervous system and adrenaline causes someone to either act or run.)

Judge Moran ruled that gun and ammunition use and ownership was relevant and admissible within a three-year window:

The Court denies the Defendant’s Motion. This evidence is relevant. Any possible prejudice to the Defendant would be slight. The Court finds that the probative value of the evidence is not outweighed by the danger of unfair prejudice. The Court will limit evidence on this issue to a period not to exceed three years prior to the incident.

The State grilled Fish before the grand jury about his relationship with guns. See Statement of Facts, supra. A transcript of this testimony was later provided to the petit jury. [Ex. 309, 179-184, 190-98, Appx. 9]. The extensive admission of evidence about Fish’s use, ownership, and collection of guns for the past three years, both from Fish and his wife Debora, was more prejudicial than probative under Rule 403.

U.S.

v. Clifford, 640 F.2d 150, 153 (8^th Cir. 1981).

b. Grand Jury Questioning About Warning Shots, Injury to Kuenzli, and Brandishing a Weapon Were Irrelevant and Prejudicial

Fish was questioned about the fact that he did not want to shoot the dogs and fired a warning shot at the dogs. [Ex. 309, 216-18, Appx. 9]. The grand jurors then asked Fish why he failed to give a warning shot to the human being, but provided one to the dogs. [ Id. ] Fish responded that he did not have time to fire a warning shot at Kuenzli and the CCW course trained him not to fire a warning shot. [ Id. ] The questioning should not have been permitted - warning shots are not required by Arizona law.

Fish was also asked by a grand juror - - shockingly approved by Judge Moran - - why he didn’t try to shoot Kuenzli in the arm or leg. Fish answered that he was trained to shoot at “center mass”. [ Id. ] Fish admittedly misspoke by suggesting that there was “tremendous legal problems” in doing so. Of course, the grand jury wanted to know “what kind of legal problems do you incur?” [ Id. , 259] - - a legal conclusion Fish was in no position to answer. Judge Moran also allowed the grand jury to question Fish about the “reasonable man legal construct”. [ Id. , 267].

Over defense objection, Judge Moran allowed Fish to explain to the grand jury that “brandishing a weapon” was unlawful because, according to Judge Moran, Fish provided a “pretty good description of the law”. [R.T. 5/11/06, 23; Ex. 309. 255, Appx. 9]. Fish’s opinion that brandishing a weapon is always illegal was never supported before the petit jury with a proper jury instruction referenced to statutory authority or otherwise. Why would Judge Moran allow Fish to define the law on “brandishing a weapon” if it was not a legal issue in the case, it was not supported by a jury instruction or legal reference, Fish was not a legal expert, and Fish was not charged with illegally brandishing a weapon? Nevertheless, the reference was prejudicial because it opened the door to allow the jury to speculate that Fish had illegally brandished his weapon.

Fish was also not legally required to give a “warning shot” if he was justified in using deadly force. It is unreasonable, let alone short of any recognized legal standard, to expect a gun owner to “wing” or injure an attacker only. Fish was not a legal expert and the questions relating to “brandishing” a weapon, warning shots and shooting to “wing” were extremely prejudicial. See , U.S. v. Clifford, 640 F.2d 150, 153 (8^th Cir. 1981); U.S. v. Ravich, 421 F.2d 1196, 1204-05 (2^nd Cir. 1970); and U.S. v. Woods, 613 F.2d 629 (6^th Cir. 1980); U.S. v. Curtain, 443 F.3d 1084, 1091 (9^th Cir. 2006); Rule 401, 403, Ariz. R. Evid.

Rule 401, Arizona Rules of Evidence, “makes clear” that evidence which is essentially background in nature, offered as an aid to understanding the evidence at trial, may be admitted. Graham, Handbook of Federal Evidence, §401:1 (Thomson West 6^th Ed. 2006). Background evidence bears on the credibility of the witness by showing the witness to be a stable person and assist the jury in evaluating the defendant’s credibility. Government of Virgin Islands v. Grant, 775 F.2d 508, 513 (3^rd Cir. 1985). It was error for the State to ask Fish about three years of gun ownership and practice when the jury was not allowed to know about Fish’s education at NAU and BYU and other general background information. Fish simply explained that he attended NAU, went on a two-year mission in the middle of his college education, and then continued his education at BYU. [G.J. 177, lines 14-25, 178, lines 1-25, 179, lines 1-20, Appx. 10]. The general background information should have been presented to the petit jury.

When transcripts of recorded testimony given at a trial, deposition or hearing such as before the grand jury have been received, courts are reluctant to send the exhibits with the jury… they present an unfair advantage to the proponent in having only this single segment of the entire trial testimony before the jury during deliberations. [The concern] applies as well to request by the jury for videotape recordings, tape recordings, transcripts of testimony, or for having portions of testimony reread.

Graham, Handbook of Federal Evidence, §403:2. The possibility of undue inferences on a small part of the testimony given in a six week trial justified the denial of the jury’s request. U.S. v. Morrow, 537 F.2d 120, 148 (5^th Cir. 1976), cert. denied, 430 U.S. 956 (1977); U.S. v. Abbas, 504 F.2d 123, 125 (9^th Cir. 1974), cert. denied, 421 U.S. 988 (1975); U.S. v. Rodgers, 109 F.3d 1138, 1143 (6^th Cir. 1997) (“First, the jury may accord ‘undue inferences’ to the testimony; second, the jury may apprehend the testimony ‘out of context.’) In U.S. v. Hernandez, 27 F.3d 1403, 1409 (9^th Cir. 1994), cert. denied, 513

U.S.

1171 (1995), the Ninth Circuit granted a new trial because the trial court sent transcripts to the jury without giving precautionary instructions. The Sixth Circuit similarly reversed a judgment of a guilt fostered by the District Court’s decision to allow a transcript of the grand jury testimony to be sent to the jury room without “an appropriate instruction with regard to the proper use” of the transcript. U.S. v. Smith, 419 F.3d 521, 527-29 (6^th Cir. 2005), cert. denied, 126 Sup. Ct. 1110 (2006);

U.S.

v. Rodgers, 109 F.3d 1138, 1141 (6^th Cir. 1997).

The redacted grand jury transcript was not only read to the jury by Detective Cornish during the middle of Corporal Feagan’s testimony [R.T. 5/16/06, 29-34, Appx. 9] but also admitted into evidence and affirmatively presented to the jury during its deliberations. [R.T. 6/12/06 , 125]. The prejudicial effect of the testimony before the grand jury was amplified by the fact that a transcript was presented to the petit jury, while the presentation of other witnesses were not presented to the jury in a transcribed form.

The Court’s rulings regarding the grand jury transcript were not properly implemented by the State before Exhibit 309 (Appx. 9) was allowed into evidence. For instance, Judge Moran specifically ruled that lines 14-18 on page 252 of the G.J. transcript should have been admitted. [R.T. 5/11/06 , 18]. However, the exhibit presented to the petit jury did not include lines 14-18, which includes an explanation by Fish why he did not attempt to shoot at an arm or a leg of Kuenzli. In light of the other testimony from the grand jury that was allowed, the answer by Fish that was approved by the trial court was prejudicially removed from exhibit 309 and the petit jury:

Mr. Fish: Number one I was told not to do that and, number two, I had no time. This man was running, you know. And just - - I know it’s hard - - it’s hard to - - you know to put yourself in that place and realize how difficult it is.

G.J. 252 at lines 14-18. (Fish explaining why he could not shoot Kuenzli in the leg.)

Several portions of the grand jury transcript were also excluded by Judge Moran even though they were relevant, especially in light of the remaining portions of the grand jury transcript allowed. First, Judge Moran excluded Fish’s explanation of why he perceived Kuenzli to be a serious threat. The trial court inexplicably excluded G.J. 165, lines 21-25, Appx. 10, where Fish was explaining how Kuenzli put him in fear of his life. Fish also attempted to explain why he believed that Kuenzli would kill or hurt him. Fish believed that Kuenzli would beat him, use a rock, the dogs, or “combination thereof or just beat me and choke me.” He also feared that Kuenzli would use his own handgun against him. Fish then explained that he knew Kuenzli was going to kill or beat him because of the feeling existed in his gut when he faced Kuenzli. The critical explanation was improperly excluded from the petit jury. Id.

Fish’s attempt to explain why Kuenzli was so dangerous also should not have been cut short. Judge Moran explicitly excluded for the third time Fish’s attempt to explain why he shot Kuenzli. G.J. 266, lines 3-12 [Appx. 10] were excluded. Fish explained that he tried to get Mr. Kuenzli to “back off”. He explained that Kuenzli was very “close” when he shot him. Importantly, Fish explained that “I didn’t want to shoot him. I tried not to shoot him. I was not out there to shoot dogs. I was not out there to shoot people. I was hiking, going home, and that’s all I wanted to do.” Id. The answer by Fish was extremely important and should not have been excluded.

Again, on pages 173-74 of the grand jury transcript, Fish’s consistent explanation that he was sure Kuenzli would kill him is excluded, in part. In explaining his certainty regarding Kuenzli as a threat, Fish added:

I am as certain of that as certain I am sitting here today. Sometimes you just got bad choices in life. Sometimes there’s no good choice. My choice was to live and go home and be a father and a husband. I am sorry for him. I am sorry for the life, you know that was lost that day. If I could bring him back, I would, but I can’t. But I was going home.

The redacted version grossly distorted Fish’s testimony and did not present a full or fair explanation of his basis for self-defense. See Rules 401-03, 106, Ariz. R. Evid.

8. Lucien Haag’s Testimony Magnified the Prejudicial Effect of the Gun History

The State’s effort to cast Fish as a “gun nut” was greatly aided by the court’s decision to allow the state’s gun expert, Lucien Haag, to testify that the gun and ammunition used by Mr. Fish were unusually powerful and expensive. [R.T. 5/2/06 , 123; see also discussion: “Lucien Haag, Criminalist” supra]. Haag used photographs of the gun (Exhibit 81) and bullets (Exhibit 85) to illustrate his testimony that the Kimber 10mm is more powerful than standard police pistols. He also testified that the Hydra-Shock bullets Mr. Fish used are unusually powerful [R.T. 5/2/06 , 132] and expensive [ Id. , 138]. Haag explained in gruesome terms that these “hollow-points” [ Id. at 138] expand upon contact with soft material [ Id. , 135] creating a “shock cavity.” He emphasized their explosive nature using high-speed photographs. [ Id. , 142, 150].

There was no dispute (a) that Fish shot Kuenzli with his pistol, (b) that the pistol was a Kimber 10mm, (c) that he used Hydra-Shock bullets. Given the lack of any material dispute, the introduction of this evidence was irrelevant and prejudicial. Either Mr. Fish was justified in using deadly force to defend himself or he was not. All evidence, questions, and arguments relating to the handgun and ammunition should have been precluded. ARE 401, 402, 403.

The fact that appellant had a gun and that he shot Brewer are uncontroverted. His reason for carrying the gun does not pertain to ‘the existence of any fact that is of consequence to the determination of the action…. Fed. R. Evid. 401. The mere possession of a gun simply does not go to the issue of whether its use is justified in self-defense….

Gun ownership and use is constitutionally-protected. In an analogous area of the law, courts have been careful to exclude sexually explicit reading material that is lawful under the First Amendment.

Both [Guam v. Shymanovitz, 157 F.3d 1154 (9^th Cir. 1998)], and this appeal address whether the reading material at issue was admissible under Rule 404(b). We concluded that in Shymanovitz that the magazine articles failed to constitute a Rule 404(b) bad act. Possession of lawful reading material is simply not the type of conduct contemplated by Rule 404(b). Id. at 1159.

U.S.

v. Curtain, 443 F.3d 1084, 1091 (9^th Cir. 2006). The Court of Appeals concluded that a “wide gulf” separates the lawful possession of sexually explicit material and criminal conduct. Possession of these materials was not misconduct and did not enlighten the jury as to whether subsequent criminal conduct occurred.

9. Testimony About the Tactical Disadvantage of Hand-To-Hand Combat With An Aggressor Approaching from Higher Ground and the Physical Description of the Scene of the Shooting Should Have Been Allowed

William Thompson was employed for three years as the Forensic Investigator for the Coconino County Medical Examiner’s Office. He previously performed the same job in Maricopa County for three years and worked as a Technician in the Mesa Lutheran Hospital emergency department for four years. He has investigated approximately 300 homicide cases and attended more than 1,000 autopsies. [R.T. 5/19/06 , 137-39]. He responded to the scene of the shooting on the evening of May 11, 2004 , and returned early the next morning. [ Id. , 143-47].

Thompson investigated the route of travel traversed by Kuenzli prior to the shooting. Thompson worked with Palmer, the “tracker”, and other officers to determine the route of travel. Thompson took photographs of yellow flags or markings placed at the scene. [ Id. , 150-60]. Nevertheless, the trial court precluded the Defense from asking Thompson about the investigation and markings documenting Kuenzli’s path of travel. Judge Moran refused to allow photographs taken by Thompson to be admitted since the “tracker” Palmer was not called as a witness. Interestingly, Palmer was not called as a witness because he was fired for dishonesty after an internal investigation. [ Id. , 159-61]. Nevertheless, Thompson was not allowed to testify that he took photos of the shoes and travel path of Kuenzli - - even though he did so. [ Id. , 163].

Mr. Thompson personally observed disturbances of the soil, depressions in the ground, and drew a clear impression regarding the distance between Fish and Kuenzli at the time of the shooting. It was his job to pass on such information to the medical examiner completing the autopsy. [ Id. , 165-68]. Nevertheless, Judge Moran would not even allow Mr. Thompson to identify where disturbances in the trail were observed. [ Id. ] Eventually, Mr. Thompson was only able to say that he observed fifteen areas of disturbances and four feet was the greatest distance between them. [ Id. , 180-83].

Corporal Feagan was not allowed to testify to the dangerous, tactical disadvantage that Fish faced because Kuenzli was approaching him at a fast pace, downhill. Judge Moran precluded Feagan, an expert in martial arts and self-defense, from explaining “the problems that one might experience attempting to take on somebody coming from the high ground in a hand-to-hand combat”. [R.T. 5/16/06 , 85]. The States’ witness, Thomas Ross, described the angle of the slope as eleven degrees, quite steep. [R.T. 4/20/06 , 60]. The Court’s refusal to allow the State’s lead investigator to explain the tactical disadvantage of engaging in hand-to-hand combat with someone running down a steep grade was prejudicial, if not pivotal error.

Police officers commonly testify about areas of particular knowledge relating to their training and experience. Bliss v. Treece, 134 Ariz. 516, 658 P.2d 169 (1983)(police officer permitted to express opinion that plaintiff was following defendant too closely because it would assist the jurors); State v. Williams, 132 Ariz. 153, 644 P.2d 889 (1982)(testimony about vulnerability of neck area and danger of a sharp stick in spite of protective gear admissible); State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981)(detective’s demonstration and testimony about position of person to conform to trajectory of bullet admissible); State v. Murray, 184 Ariz. 9, 906 P.2d 542 (1995)(testimony about shoe print comparison admissible).

10. Dr. Horn’s Speculative Testimony Was Inadmissible, But Acted As Crucial “Forensic Science” for the State’s Closing

Dr. Horn admitted during a pretrial interview that he could not say that Kuenzli’s wounds were “defensive” within a reasonable degree of medical certainty. [R.T. 4/19/06 , 46]. The trial court allowed the “opinion” of Horn under the authority of State v. Paxson, 203 Ariz. 38, 49 P.3d 310 (App. Div. 1, 2002). [M.E. 4/20/06 , 1-2].

In State v. Paxson, the trial court allowed the testimony of Dickerson, an engineer, to testify about “which of these two scenarios actually occurred” because “it is a certainty that one of these did occur. Fairly construed, Dickerson’s testimony was that the probability of one scenario was approximately equal to the other.” 203 Ariz. 38, 41, 49 P.3d 310, 313. The unique facts of Paxson, however, do not change the standard rule that medical testimony may only be provided if it is supported by an opinion within a reasonable degree of medical probability (more probably true than not true). In other words, the proponent of expert testimony bears the burden of establishing that the opinion is established by at least a preponderance of the evidence. See Rule 104(a), Ariz. R. Evid.; Bourjaily v. U.S. , 483

U.S.

171 (1987); Graham, Handbook of Federal Evidence, §702:1. To be reasonably probable, a conclusion must be more likely than not. State v. Nunes, 800 A.2d 1160, 1175-76 ( Conn. 2002). In other words, the opinion must be “probable” rather than merely “possible”. State v. Weinberg, 575 A.2d 1003 ( Conn. ), cert. denied, 498 U.S. 967 (1990). Medical expert testimony regarding causation based upon possibility or speculation is insufficient. The opinion must be stated as being at least “probable”, more likely than not. Doe v. Zedek, 587 N.W.2d 885, 893 (Nebr. 1999); Stinson v. England, 633 N.E.2d 532, 537 (Ohio 1994)(an expert must state her opinion in terms of probability, meaning that she must express that there is greater than fifty-percent likelihood that a certain act or failure to act caused a given result). “A doctor’s testimony that a certain thing is possible is no evidence at all. His opinion as to what is possible is no more valid than the jury’s own speculations as to what is or is not possible.” Primm v. Wickes Lumber Company, 845 S.W.2d 768, 771 ( Tenn. App. 1992); State Compensation Fund v. Keefe, 22 Ariz. App. 311, 314, 526 P.2d 1266, 1269 (1974)(reas. degree of medic. prob.); State v. Bolton, 182 Ariz. 290, 304, 896 P.2d 830, 844 (1995)(Four requirements of expert testimony include reliability and more probative than prejudicial).

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 which were presented to the trial court. First, 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 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. [I.R. 352, 12].

Second, 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. Defense counsel was advised that the jury would have acquitted Fish had the new law been applied to his case. The jurors’ knowledge and discussion of the purposes and reasons for the stay were improper, and damaged Mr. Fish's right to a fair trial. Id. at 12-13.

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).

The trial court gave improper instructions regarding the use of deadly force, depriving Mr. Fish of his right to due process and a fair trial, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article II, Sections 4, 24 of the Arizona Constitution. In this case, the trial court gave the following instruction, in pertinent part:

A defendant is justified in using or threatening physical force in self defense if the following two conditions exist:

(1) a reasonable person in the defendant’s situation would have believed that physical force was immediately necessary to protect against another’s use or attempted use of unlawful physical force; and

(2) The defendant used or threatened no more physical force than would have appeared necessary to a reasonable person in the defendant’s situation.

However, a person may use deadly force in self-defense only to protect against another’s use or threatened use of deadly physical force.

Apparent deadly force can be met with deadly force so long as the defendant’s belief as to apparent deadly force was a reasonable one. [I.R. 347].(emphasis added). (Appx. 11).

This portion of the self defense instruction incorrectly led the jury to believe that “actual deadly force” rather than “reasonably apparent deadly force” was necessary to justify the use of deadly force in the response. Although the initial description in paragraphs (1) and (2) of when self defense is justified correctly reflect the statutory language of A.R.S. §13-404(A), the next two paragraphs regarding the use of deadly force are incorrect. Specifically, the portion of the instruction which states: “However, a person may use deadly force in self defense only to protect against another’s use or threatened use of deadly force” (emphasis added), could easily be interpreted as a limitation on the entire self defense instruction. By instructing the jury that a defendant may “only” use deadly force to protect himself from another’s use or attempted use of deadly force, the instruction suggests that “only” actual deadly force could justify defendant’s response with deadly force. Immediately after instructing the jury that the “only” situation in which deadly force may be used is in response to another’s use or threatened use of deadly physical force, the instruction then states in the very next paragraph that “apparent” deadly force can also be met with deadly force so long as the defendant’s belief as to the apparent deadly force was a reasonable one. The use by the court of the term “deadly physical force” as the “only” threatened force which can be met with deadly physical force mislead the jury because the law in fact also allows deadly force to be used in response to both “actual deadly force” and “reasonably apparent deadly force.” St. v. Grannis, 183 Ariz. 52, 900 P.2d (1995).

In Grannis, 183 Ariz. at 61, 900 P.2d at 10, the trial court had instructed the jury that “[a] defendant may only use deadly physical force in self-defense to protect himself from another’s use or attempted use of deadly physical force.” On appeal, the Supreme Court found that the instruction misstated the law because it “may” have led the jury to believe that deadly force could be used only to protect against “actual deadly force” even though §§13-404 and 13-405 also allow deadly force to protect against “reasonable apparent deadly force.” Id.

In this case, Fish did not claim in his defense that the victim was actually armed or attempting to use deadly force against him; instead, Fish claimed that he reasonably believed, even if incorrectly, that deadly force was necessary based on the victim’s actions. As a result, Fish was entitled to have the jury properly consider whether his use of deadly force was justified under A.R.S. §13-405. The jury could not adequately consider this question without being properly instructed as to the correct standard set forth in §13-405. See e.g., State v. Grannis, 183 Ariz. 52, 61, 900 P.2d 1(1995) (Reversing conviction for murder where trial court failed to properly instruct jury on self defense); Everett v. State, 88 Ariz. 293, 299, 356 P.2d 394, 398 (1960) (Reversing conviction of assault with a deadly weapon where trial court failed to properly instruct jury on self defense).

The trial court’s self-defense instruction also affirmatively stated that “the defendant’s belief was honest is immaterial.” The instruction requested by Fish stated that an honest belief was “insufficient”, rather than “immaterial.” [Appx. 11].

The jury should have been allowed to consider Fish’s good faith belief that deadly force was necessary to repel Kuenzli as one factor, which is expressly suggested by RAJI 4.04, fn.4, [Appx. 11] in cases where “there is an issue of defendant’s honest but mistaken belief.” Gerber, Criminal Law of Arizona , 404-2C (State Bar of Az 1993). Both an “objective” and “subjective” component of self-defense or justification exists in Arizona , Korzep v. Superior Court, 172 Ariz.534, 542, 838 P.2d 1295; 1303 (App. 1991) (construing crime prevention in A.R.S.§13-411); State v. Martinez, 202 Ariz. 507, 511, 47 P.3d 1145, 1149 (App. 2002). Both a “subjective” and “objective” component exists in a self-defense case. The objective/subjective components arise from common law. Carson v. State, 742 P.2d 782, 783 (Ak.1987).

In this case, Fish requested that the jury be instructed on the issue of “motive” as defined in Revised Arizona Jury Instructions – Criminal, Standard Criminal Instruction Number 38. [Appx. 11]. Standard Criminal 38 states: “The state need not prove motive, but you may consider motive or lack of motive in reaching your verdict.” The jury should be instructed on the issue of motive whenever a proper request for the instruction is made by either party. State v. Milke, 177 Ariz. 118, 122-23, 865 P.2d 779, 783-84 (1993); State v. Tucker, 157 Ariz. 433, 446-47, 759 P.2d 579, 592-93 (1988); State v. Ferguson , 149 Ariz. 200, 717, P.2d 879 (1986); State v. Hunter, 136 Ariz. 45, 664 P.2d 195 (1983).

The court agreed to give Fish’s requested instruction on motive, but failed to do so, apparently as an oversight. Although motive is not an element of the crime of murder, State v. Tuttle, 58 Ariz. 116, 118 P.2d 88 (1941), nevertheless, it is well settled that in a murder prosecution, the presence or absence of motive is relevant.

[T]he fact that the defendant had some motive, good or bad, for committing the crime is one of the circumstances which, together with other circumstances, may lead the fact finder to conclude that he did in fact commit the crime; whereas, lack of any discernable motive is a circumstance pointing in the direction of his innocence.”

State v. Hunter, 136 Ariz. 45, 50; 664 P.2d 195, 200 (1983) (quoting W. LaFave and A. Scott, Handbook on Criminal Law Section 29, at 208 (1972). See also Pointer v. U.S., 151

U.S.

396, 414, 14 S.Ct. 410, 417, 38 L.Ed. 208, 216 (1894). (The absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favor of the accused, to be given such weight as the jury deems proper). This is true whether the defendant denies the killing altogether or admits the killing but claims it was in self defense or argues for a lesser degree of homicide. Hunter at 50.

c. “Dangerous Instrument”/ “Responsibility for Dogs” Jury Instructions Should Have Been Given

Fish proposed the dangerous instrument jury instruction [Statutory Instruction 1.058, Appx. 11] based on the dangerous nature presented by the two dogs, off leash, which were aggressively running toward Fish. He also requested the instruction based on the accessibility of other dangerous instruments (e.g. rocks) to Kuenzli. The State argued that Mr. Fish told one of the detectives that he did not hear Kuenzli sic the dogs on him. The State argued further that there was no evidence that the dogs were used as an instrument by Kuenzli. The court agreed with the State and rejected the dangerous instrument instruction. [R.T., 6/6/06, 130].

The determination of whether or not an object is a deadly or dangerous weapon or instrument is a jury question. St. v. Caldera, 141 Ariz. 634, 688 P.2d 642 (1984). In Schleier v. Alter, 159 Ariz. 397, a civil case concerning a dog owner’s strict liability for the injuries caused by a dog bite, the court held that the dog was a dangerous instrument based on the dog’s history. In a criminal context, many jurisdictions have concluded that dogs are dangerous instruments or deadly weapons. (See e.g. People v. Kay, 121 Mich. App. 440 (Mich. App. 1982); State v. Michels, 726 So. 2d 449 (La.App. 1999); Commonwealth v. Tarrant, 326 N.E.2d 710 ( Mass. 1975); People v. Torrez, 382 N.Y.S.2d 233 (N.Y. Sup. Ct. 1976); Michael v. State, 286 S.E.2d 314 (Ga. Ct. App. 1981); State v. Bodoh, 582 N.W.2d 440 (Wis. Ct. App. 1998); Duke v. State, 72 S.W.3d 907 (Ark. Ct. App. 2002); People v. Nealis, 283 Cal. Rptr. 376 (Cal. Ct. App. 1991).

A “dangerous instrument” is defined as “anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.” A.R.S. §13-105. In St. v. Tamplin, 146 Ariz. 377, the court held that the definition of dangerous instrument does not require intentional conduct, but rather “one can use a dangerous instrument recklessly.” Id. at 380. Kuenzli was, at the very least, reckless in his handling of the two dogs, which both had a history of violence and aggressive acts. The trial court’s refusal to instruct the jury on the definition of dangerous instrument, which in turn denied the jury the opportunity to determine whether the dogs were dangerous and presented a threat of death or serious physical injury, resulted in fundamental error.

The court also erred in refusing to instruct the jury on Kuenzli’s legal responsibility for the conduct of his dogs as requested by the Defense. [R.T., 6/6/06 , 154, Appx. 11].

The court instructed the jury that: “Proof beyond a reasonable doubt is proof that leaves you firmly convinced of defendant’s guilt … if, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty.” (Reasonable Doubt Instruction). This portion of the reasonable doubt instruction is taken verbatim from St. v. Portilo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995).

The court’s instruction is constitutionally deficient because it improperly lowers the state’s burden of proof to a clear and convincing standard in a criminal case. This prevented Fish from receiving a fair trial and constitutes reversible error. St. v. King, 158 Ariz. 419, 423, 763 P.2d 239, 243 (1988). The giving of this instruction also constitutes fundamental error because the foundation of the case was affected and Mr. Fish was deprived of his essential rights. St. v. Walton, 159 Ariz. 571, 572, 582, 769 P.2d 1017, 1028 (1989). This error is not subject to the “harmless error” analysis. Sullivan v. Louisiana , 508

U.S.

275, 281-282, 113 S.Ct. 2078, 2082-83 (1993).

Prior to closing argument, the State moved the court to instruct the jury on the lesser included offense of manslaughter. Fish objected on the grounds that the evidence did not support a theory that Fish acted recklessly when he shot Kuenzli. The court denied the State’s request and did not instruct on manslaughter. However, when instructing the jury, the court included a recklessness instruction together with the instruction for Second Degree Murder.^{^[11]}

Fish’s objection to the lesser included instruction of manslaughter was necessarily predicated on the court not allowing any instruction regarding a theory of recklessness. However, once the court instructed on recklessness, it was required to also give manslaughter as a lesser included offense instruction. By instructing the jury that Fish could be found guilty of second degree murder based on recklessness, without allowing the jury to find Fish’s recklessness constituted manslaughter, the court deprived Fish of a fair trial in violation of the due process clauses of the United States and Arizona Constitutions.

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, the court unfairly prejudiced Fish by essentially telling the jury that if you consider Fish to be reckless, you 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. §13-105(9)(c), definition of “recklessly”). Once the 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 Fish objected to the State’s motion for the manslaughter instruction. Cruz, 189 Ariz. at 32, 938 P.2d at 81. Had the court properly instructed the jury, it is highly likely on the facts of this case that the jury would have found Fish guilty only of manslaughter, instead of Second Degree Murder. The court’s failure to provide a manslaughter instruction once it gave a recklessness instruction constituted prejudicial, reversible error.

Fish requested that the jury be instructed on the crimes of aggravated assault, endangerment and threatening and intimidating. (Appx. 11). He requested these instructions so that he could argue, based on the evidence, that Kuenzli had committed these offenses and that his conduct was therefore “unlawful.” This was a central component of Fish’s justification defense which required that he establish that he was responding to “unlawful” force from Mr. Kuenzli. The trial court’s refusal to instruct the jury on the law of these criminal offenses was an unreasonable application of clearly established Supreme Court precedent.

It has long been established that whether “rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” Crane v. Kentucky , 476 U.S.683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). It is equally well established that a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. Matthews v. U.S., 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); See also, Stevenson v. U.S., 162

U.S.

313, 16 S.Ct. 839, 40 L.Ed. 980 (1896).

Although “cumulative error” is recognized by many courts, including the Ninth Circuit^{^[12]} it is not recognized as a separate claim by Arizona . State v. Hughes, 193 Ariz. 72, 79-80, 969 P.2d 1184, 1191-1192 ( Ariz. 1998); State v. White, 168 Ariz. 500, 815 P.2d 869 (1991); State v. Ellison, 213 Ariz. 116, n. 11, 140 P.3d 899, n.11 (2006). However, Arizona courts will consider the “cumulative effect” of related errors. Id. Therefore, we request that the Court consider the cumulative effect of numerous, related errors including the improper exclusion/inclusion of portions of Fish’s testimony before the grand jury; the repeated allowance of Mr. Haag to emphasize the “powerful” gun and ammunition used by Fish and the repeated questions to Fish and his wife, Debora, about Fish’s gun ownership, use and practices over the course of three years and beyond.

It is illogical and unjust not to consider cumulative error. Evidentiary error, for example, never “stands alone”. Repeated or cumulative evidentiary errors may have a dramatic affect upon the trial even though any individual error, standing alone, may not have singularly altered the outcome of the trial. Kyles v. Whitley, 514 U.S. 419, 421-22 (1995); O’Neal v. McAninch, 513

U.S.

432, 435-36 (1995); Alcala v. Woodford, 334 F.3d 862, 882-83 (9^th Cir. 2003). Cumulative error is an extension of the harmless error doctrine. Darks v. Mullin, 327 F.3d 1001, 1018 (10^th Cir.), cert. denied, 540 U.S. 968 (2003). If combined, harmless errors adversely affect the outcome of the trial in an aggregate manner, cumulative error exists because the defendant has faced substantial prejudice and an unfair trial. Cargle v. Mullin, 317 F.3d 1196, 1206-08, 1221, 1223 (10^th Cir. 2003). As a result, we also request that the Court find cumulative error for all issues raised.

A series of erroneous evidentiary and jury instruction decisions by the trial court denied Mr. Fish a fair trial and led to his unjust conviction. Justice requires that Mr. Fish be granted a new trial.

I hereby certify that on this 19^th day of September, 2007, I delivered the original and six copies of Appellant’s Opening Brief in Cause No. 1CA-CR06-0675 to Arizona Specialty Courier to be filed with the Arizona Court of Appeals. In addition, I delivered two copies of Appellant’s Opening Brief to the following people:

Pursuant to Rule 31.13 Arizona Rules of Criminal Procedure, undersigned counsel certified that this brief is 1.5 spaced, uses 14-point Times New Roman and contains 20,909 words.

^{^[1]}^{“R.T.” shall refer to the Reporter’s Transcript, followed
by the date and page of referred testimony.
“I.R.” will refer to the index of record of documents filed
with the Clerk of the Superior Court.
“M.E.” will refer to Minute Entries.}

^{^[2]} R.T. 8/03/06, 156-157, characterization by Judge Moran.

^{^[3]}Supra, note 2.

^{^[4]}Supra, note 2.

[5] See James A. Adams, Admissibility of proof of an assault victim’s specific instances of conduct as an essential element of a self-defense claim under Iowa Rule of Evidence 405, 39 Drake L.Rev. 401(1990) (Identifying theories under which character evidence may be used in self-defense cases).

[6] See Adams , supra, at 406 (distinguishing “reasonableness” theory from “initial aggressor” theory).

[7] Id.

^{^[8]} The rule is, however, not universal. Several jurisdictions have also concluded that the alleged victim’s prior acts of violence or aggression are an “essential element of the self-defense claim”. See, e.g. State v. Dunson, 433, N.W. 2d 676, 680-81( Iowa 1988) (determining admission of specific acts and essential element of defendant’s defense); Heidel v. State, 587 So. 2d 835, 846 ( Miss. 1991) (admitting prior specific acts as “essential element” of self-defense defense); State v. Sims, 331 N.W. 2d 255, 258 ( Neb. 1983) (allowing specific act evidence as “essential element of defense”). Other jurisdictions allow specific act evidence of the victim, but only in homicide cases. See Harris v. U.S., 618 A.2d 140, 144 (DC1992) (allowing specific act evidence of alleged victim’s violent conduct but only in homicide cases). Or require that the defendant provide advance notice to the prosecutor of their intent to introduce specific act evidence. See Chandler v. State, 405 S.E. 2d 669, 673-74 ( Ga. 1991) (allowing specific acts of alleged victim, but requiring notice.)

^{^[9]}See Ariz.R.Evid. 404(b) and Fed.R.Evid. 404(b), both which provide for the admission of specific act character evidence for “other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. …”

[10] The legislature recently again amended the statute to make the justification defense a non-affirmative defense and shifted the burden back to the State to prove beyond a reasonable doubt that the defendant did not act with justification. A.R.S. §13-205(A)(Supp.2006).

^{^[11]}Fish also claims that instructing the jury on Reckless Second Degree Murder was error.

[12] [12] U.S. v. Necoechea, 986 F.2d 1273, 1282 (9^th Cir. 1992); Solis v. Garcia, 219 F.3d 922, (9^th Cir. 2000). It is a separate claim that must be exhausted.