IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

OPENING BRIEF

LAW OFFICE OF LEE PHILLIPS, P.C.
323 N. Leroux Street
Flagstaff , Arizona   86001
(928) 779-1560
(928) 779-2909 Facsimile
LeePhillips@NotGuilty1.com
State Bar No.  009540

LAW OFFICE OF JOHN TREBON, P.C.
         308 N. Agassiz Street
         Flagstaff , AZ   86001
         (928) 779-1713
         (928) 774-1265
         Trebon@unneedspeed.net
         State Bar No. 005375

September 19, 2007

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................ iv

I. STATEMENT OF THE CASE...................................................................... 1         

A. Appellate Jurisdiction......................................................................... 1

B. Nature of the Case.............................................................................. 1

II. STATEMENT OF FACTS AND COURSE OF PROCEEDINGS............... 2

          A.“A Man of Moral Principle”................................................................ 2

          B. Fish “Reacted Out of Fear and Instinct”............................................. 3

          C. Mr. Fish “Cooperated with the Authorities”...................................... 4

          D. Grand Jury Testimony....................................................................... 6

          E. Evidentiary Rulings and Trial............................................................. 7

                 1. Medical Examiner........................................................................ 9

                 2. Scott Feagan, Investigator............................................................ 9

                3. Michael Anthony, Firearms Safety Instructor............................. 10

                4. Bruce Cornish, New Lead Investigator for State......................... 11

                5. Sergeant Dean Wells (Scott Feagan’s Supervisor)...................... 11

                6. Debora Fish................................................................................ 11

                7. Change in Law: Burden Shift...................................................... 12

         F. Closing Arguments and Sentencing................................................... 12

                1. Sentencing................................................................................... 14

III.     ISSUES PRESENTED.......................................................................... 15

IV.     ARGUMENT........................................................................................ 16

     A.  Standard of Review.............................................................................. 17

B. Mr. Fish Is Entitled To A New Trial ..................................................... 18

1.     Specific Acts of Kuenzli’s Prior Conduct Should Have Been Admitted     18

a.  The Modern Test for Admissibility of Other Act Evidence 22       

b.  1997 Shift in Burden of Proof on Self-Defense................ 27

c.  Mr. Fish’s Right to Present a Complete Defense............. 28

d.  Prior Act Evidence Permitted for Victim’s Motive and Intent        29

2.     The Jury Was Misled to Believe Kuenzli Was “Unarmed”........... 31

3.     Mental Health Records Should Have Been Fully Disclosed......... 35

            a.  Doctor-Patient Privilege................................................... 36

            b.  Victim’s Bill of Rights..................................................... 37

4.     Prior Behavior of Dogs Should Have Been Admitted.................. 42

5.     Subsequent Acts of the Dogs Should Not Have Been Admitted.. 43

6.     “Fight or Flight” Syndrome Testimony Should Have Been Admitted        44

7.     Improper Exclusion and Inclusion of Grand Jury Testimony...... 45

a.     Past Gun Ownership and Use by Mr. Fish Was Prejudicial and Not Probative......................................................................... 45

b.     Grand Jury Questioning About Warning Shots, Injury to Kuenzli, and Brandishing a Weapon Were Irrelevant and Prejudicial... 45

c.      Mr. Fish’s Background Should Not Have Been Excluded 47

d.     Transcript of the Grand Jury Testimony Should Not Have Been Admitted and Presented to the Jury................................................. 47

e.      Transcript Was Redacted Improperly and Prejudicial..... 48

8.     Lucien Haag’s Testimony Magnified the Prejudicial Effect of the Gun History   50

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...................... 51

a.     Forensic Investigator....................................................... 51

b.     Corporal Feagan.............................................................. 53

10.                                                                                                                                                                                                                                                                         Dr. Horn’s Speculative Testimony Was Inadmissible, But Acted As Crucial “Forensic Science” for the State’s Closing Argument.................................. 53

11.                                                                                                                                                                                                                                                                          New Trial Should Have Been Granted for Jury Misconduct......................... 55

12.                                                                                                                                                                                                                                                                          Jury Instructions Erroneous................................................................ 56

a.     Jury Instruction of Use of Force/Self Defense.................. 56

b.     Jury Instruction on Motive.............................................. 58

c.      “Dangerous Instrument” Jury Instruction Should Have Been Given        59

d.     Reasonable Doubt / Burden of Proof Instruction............. 61

e.      Lesser Included Offense Instruction................................. 61

                                                                                           i.      Manslaughter......................................................... 61

                                                                                         ii.      Aggravated Assault, Endangerment,

Threatening and Intimidating................ 63

               13.  Cumulative Error...................................................................... 64

V.               CONCLUSION..................................................................................... 65

Certificate of Service............................................................................. 66

Certificate of Compliance...................................................................... 67

I.       STATEMENT OF THE CASE

A.      Appellate Jurisdiction

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

B.      Nature of the Case

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.

II.      STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

          A. “A Man of Moral Principle”^[2]

          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].

                   B.  Fish “Reacted Out of Fear and Instinct”^[3]

          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].    

                   C.  Mr. Fish “Cooperated with the Authorities”^[4]

          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. 

                    D. Grand Jury Testimony

          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].

                   E.  Evidentiary Rulings and Trial

          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.  

                              1.  Medical Examiner

          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.]

                             2.  Scott Feagan, Investigator

          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].    

                             3. Michael Anthony, Firearms Safety Instructor

          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.

4. Bruce Cornish, New Lead Investigator for State

          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].

                             5. Sergeant Dean Wells (Scott Feagan’s Supervisor)

          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].

                             6. Debora Fish

          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.

                             7.  Change in Law: Burden Shift

          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).

                    F.  Closing Arguments and Sentencing   

          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. 

Id. , 29.

          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].

                    6. Sentencing

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.

III.    ISSUES PRESENTED

(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?

(16) Did the trial court give an erroneous instruction on self-defense?

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

(18) Does the cumulative effect or error require a new trial?

IV.    ARGUMENT

          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.  Standard of Review

          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.