Harold Fish Defense

Grant Kuenzli ended his life with one aggressive confrontation too many. This time, instead of menacing his girlfriend or other defenseless individuals, Kuenzli attacked a man who could and would defend himself. The tragedy of Kuenzli’s death is equaled only by the imprisonment of Harold Fish, a retired school teacher with a wife and seven children. Despite the State’s successful effort to paint Fish as a trigger happy gun nut, the fact remains that the loss of life for one and freedom for the other was caused by Mr. Kuenzli and not by Mr. Fish.

The State’s practice of casting Fish as a gun nut continues on appeal.[1] The State asserts that Fish “had more than 50 guns and added a couple of guns to his collection each year”. [Ans. Br. 1]. Debora Fish, however, testified only that “over 50” guns “may have come and gone over the course of [her] marriage” to Fish. They sold guns when they needed money. [R.T. 5/23/06, 109]. The marriage spanned some 22 years.

The State continues its character assassination of Fish by claiming that Debora Fish and Harold Fish attended a gun school for “semi-automatic pistols”. [Ans. Br. 1]. Yet Debora Fish emphasized that Harold did not collect semiautomatic or automatic guns. [R.T. 5/23/06, 110]. The Fish couple did attend a “pistol class” at Gun Sight a “prime gun school in the state”; but not a prime “semi-automatic” gun school. [ Id. , 107].

The State returns to the irrelevant topic of the Fish family gun collection when discussing statements made by Fish to Det. Feagan. [Ans. Br. 15-16]. “Targets” were found in Fish’s van, parked more than one mile away, with “bullet holes” in them. Several types of bullets including .22 caliber, .22 caliber magnum, .380 and 10 mm were found in the van. [Id]. Although the bullets from the van were not connected to the case in any way and did not constitute “other act” evidence (Rule 404(b) they did hit their intended target at trial, Harold Fish.

B. Time of Shooting Most Likely Occurred at 6:30 p.m. According to Fish and the Campers

The State contends that Ashley Gross “unequivocally” recalled that shots were fired at “5:30 p.m. – not 6:30”. [Ans. Br. 4, n. 1]. In fact, she admitted that she did not carry a watch. [R.T. 4/21/06, 21]. She is not even sure that she had a cell phone with her, and didn’t recall using it or looking at it. [ Id. 21-22]. Nor did she recall looking at a clock in the vehicle. [Id, 61-70]. During trial, Ms. Gross conceded that she could not recall when she heard the shots. [Id, 28-36]. At trial, Ms. Gross testified that she and Dannie Goodwin left on the first of two trips to Strawberry at 5:40 p.m. after the shots were fired (presumably by Fish). She admitted, however, that both she and Ms. Goodwin gave time estimates based upon the position of the sun. [ Id. 129]. Each trip to Strawberry consumed about 45-minutes to one hour. [ Id. 22-23 (Gross), 146 (Baretta), 198 ( Flores )]. The position of the sun, however, establishes that the shots actually occurred at approximately 6:30 p.m. rather than 5:30 p.m.

Ms. Gross signed an affidavit prior to trial, stating that the campers arrived at their campsite at 4:00 p.m. [Ex. 200]. At trial, she confirmed that the affidavit was “correct”. [R.T. 4/21/06, 21, 41]. Ms. Goodwin confirmed that the group of friends arrived at the campsite between 4:00 – 4:30 p.m. and heard shots some time before 6:30 p.m. [ Id. 78-79]. Ashley Gross also recalled that the sun was “starting to set” on the way back from Strawberry during the first trip to get propane. [ Id. 24, ln. 1]. The sunset occurred at 7:18 p.m. [Ans. Br. 4, n. 2].

Ms. Gross’ own observations about the sunset is inconsistent with a departure from the campsite for Strawberry at 5:40 p.m., ten minutes after hearing shots fired. The trip took less than one hour. In order for the campers to witness the sunset on the way back to the campsite, it must have begun at 6:30 p.m., rather than 5:30 p.m. Ashley Gross admitted that the “sun was gone” during the second trip to town, but there was a “little bit of light” in the sky. [ Id. 85]. Once again, the second trip obviously occurred after sunset, while the first trip occurred approximately 45 minutes to one hour prior to sunset (approx. 6:30 p.m.). On the way back to the campsite after the first trip, Ms. Goodwin saw a man and a vehicle on the side of the road, which was Mr. Fish and Chet Dieringer. They conducted the On-Star call to authorities from 6:47 p.m. until 7:30 p.m. [Ans. Br. n. 3]. The sighting by Ms. Goodwin confirms that the first trip could not have occurred between 5:30 – 6:30 p.m.

The third camper, Braden Baretta, could not recall time lines, but recalled that the campers set up camp for 30-45 minutes after they arrived, then shot their own guns for 1-2 hours before they heard other gunshots. If they did arrive at 4:00 – 4:30, as recalled by Ms. Goodwin, then they would have heard other gunshots at approximately 6:30 p.m.

The last camper, Gary Flores, recalled on direct examination that the group started shooting at 4:00 p.m. They stopped because they ran out of ammunition. [ Id. 196]. On cross-examination, however, he recalled that they set up camp by 4:45 p.m. [Id. 204] and expended another half hour setting up their shooting range. [ Id. 205]. It was dark by the time Ashley Gross and Dannie Goodwin left for town. [ Id. 209-10]. Gary Flores told the police the next day that he heard shots between 5:00 – 7:00 p.m. [Id. 221].

Ms. Gross heard 3 shots fired without any pause. [ Id. 20, 32]. Ms. Goodwin heard 4 shots without any pause. [ Id. 77]. Mr. Baretta recalled 4 shots. The first shot was followed by a significant pause and then 3 shots were fired in rapid succession. [ Id. 151]. The pause could have been as long as 45 seconds, [Id. 170] or as brief as 2-3 seconds. [ Id. 179]. Gary Flores also heard 4 shots: a single shot followed by three shots. The intervening pause was no more than 10 seconds, according to Flores . [ Id. 199]. Mr. Flores recalled that he heard emergency vehicle sirens about the same time as the girls left to get propane in Strawberry. [ Id. 229].

Mr. Flores thought the distance from the group’s campsite to the Kuenzli shooting was “130 yards”. [ Id. 219]. Braden Baretta estimated the same distance as 1/8 to ¼ mile; Ms. Goodwin estimated ¼ to ½ mile. [ Id. 186-88; 131].

The State’s assertion that the shooting by Fish occurred at 5:30 as “unequivocal” and a “virtual certainty”, based upon the testimony of the campers, is pure nonsense. [Ans. Br. 3-5 and n. 1]. The truth is that there was “virtually” nothing about their testimony that was certain, precise, or consistent. The most reliable conclusions about time, distance, or events that can be gleaned from their testimony is that the shooting occurred at about 6:30 p.m.

Ms. Gross testified that the sun was “starting to set” at the end of the first trip to town; but the State extends the sunset by 1 hour and contends that it set during the second trip to town. [Ans. Br. 7]. In light of the fact that Fish and Chet Dieringer were gone when Ms. Gross and Mr. Baretta returned from the second trip to Strawberry [ Id. ], they must have returned well after 7:30 p.m., when the On-Star call ended. [Ans. Br. n. 3]. To be sure, twilight may exist after sunset; but the sun dropped below the horizon at 7:18 p.m., which marked the end of the campers’ first 45-minute trip to Strawberry.

The State briefly summarizes the removal of the dogs,

Sheba

and Maggie, from Kuenzli’s car. [Ans. Br. 17]. The State leaves out the fact that both Deputy Deloria and Sgt. Ramos viewed the dogs before Animal Control Officer Jack Roberts arrived and concluded that

Sheba

was then aggressive and dangerous. She bared her teeth, the hair was raised on her back, and she would have bit them. [R.T. 5/5/06, 53-54 (Deloria) and 5/9/06, 88-90 (Ramos)]. Deputy Shouse, former animal control officer, explained that “fear biters” (such as

Sheba

) may appear meek and mild, but go into attack mode when they sense that something is wrong. The last thing you want to do is turn around and run from a “fear biter”. [R.T. 5/11/06, 134-35].

The officers confirmed that Fish was sincerely apprehensive of the dogs. He backed away from the dogs as they were removed from Kuenzli’s car by Jack Roberts, animal control officer. [R.T. 5/11/06, 64-65]. Fish “was afraid” of the dog. [ Id. 74 (Officer Vlieg)].

Fish’s fear of the dogs was explained, at least in part, by the fact that only a few short weeks before the attack by Kuenzli, Fish’s oldest daughter, Ellen, was attacked by a neighbor’s dog. Ellen turned and ran from the neighbor’s dog after it barked at her. The dog ran through the neighbor’s front door, chased Ellen, and bit her at least three times. The bites were brutal, ripping a hole into the calf of her leg. It took ten stitches to close the dog bite, which left a substantial scar. As a result, Fish later told his entire family that they should never run from a dog. The running action simply signals to the predatory animal that they are “prey”, initiating their natural instincts to attack. Fish learned from his daughter’s experience that one must face the attacking dog, rather than running away. [G.J., 163-64, Ex. 309 (Appx. 10)]. Ellen Fish testified at trial. She also explained the dog bite incident. She recounted that her father told her never to run away from a pursuing dog. [R.T. 5/18/06, 150].

The facts are construed in favor of the State on appeal but they should not be misconstrued. The State claims that Fish called his wife, Debora, on the night of the shooting between 9:00 and 10:00 p.m. and expressed “concern over the possibility of a civil suit”. [Ans. Br. 12-13]. In fact, Mrs. Fish testified that she raised her “concern” about a civil suit after she had two phone calls with her husband on both May 11 and May 12, 2004. She testified that the “civil suit was my concern, to Detective Feagan, not my husband’s concern to me.” [R.T. 5/23/06, 143, ln. 18-19]. Fish actually reported that he was concerned “about all the stuff that was going on”. [ Id. ln. 9-10]. Debora Fish, not Harold Fish, expressed concern about a civil suit only after Detective Feagan told her that he thought Fish may have acted in self-defense. [ Id. 150, 153]. Nevertheless, the trial court precluded the Defense from placing the civil suit comment in context. [ Id. 151-53]. The State’s appellate reference to Fish’s “concern” about a “civil suit” is not only misleading but unfair. [Ans. Br. 12-13].

Fish gave several statements to law enforcement personnel. It is true that he told Det. Feagan that he thought he would get home at 7:30, 8:00 p.m. [Ex. 305, 12]. However, on the same page of the interview transcript, Fish told Feagan that he “topped out” of Pine Canyon at 6:30” p.m. [Id.]. If Fish was wrong, he was about when he would get home - - not the time of the shooting.

The State has managed to similarly skew other portions of Fish’s tape – recorded statement. [Ex. 305]. Fish did describe the crazy look in Kuenzli’s eyes as he was running toward Fish [Ex. 305, 32] like a “freight train”. Although he did say that “his life has just gone in the crapper” [Ans. Br. 21] the State leaves out that he also added that “[Kuenzli’s life] is in the crapper” as well. Contrary to the State’s assertions, Fish was remorseful and did what he could to “help save [Kuenzli’s] life”. [Ex. 305, 51-52].

Officer Selby, U.S. Forest Service, did NOT paint a picture of Fish as calm and calculated, giving a rehearsed statement. [Ans. Br. 9 – 10]. Selby testified that Fish was “very cooperative” and quite “sincere”. [R.T. 4/25/06, 191-94]. Selby described Fish as “calm to a point”, “shaking a little bit”, “his voice was cracking, skipping a little bit”, and he “kept talking over and over about what took place”. [Id, 191]. Selby concluded that Fish “was trying to keep it together by talking”. [ Id. 195]. Fish was talking in an effort to vent or release emotion. [ Id. 193].[2] Fish was not evasive and did not try to hide anything. [ Id. 194].

Although Fish apparently did not repeat to Sgt. Ramos (the second law enforcement officer at the scene following Selby) that he tried to call for help immediately after the shooting, but could not obtain a signal on his cell phone [Ans. Br. 12, lns. 4-5]; Fish did previously tell Officer Selby that “he didn’t get cell phone service” and, as a result, “went out to the road” where he eventually “flagged a vehicle down”. [R.T. 4/25/06, 200 (Officer Selby)].[3] We know that the vehicle Fish was able to “flag down” was operated by Chet Dieringer [ Id. 8-9], who confirmed the lack of cell phone service in the area. Mr. Dieringer therefore initiated an “On-Star” call at 6:47 p.m., Arizona time. [ Id. 12-14; Ex. 104-05 (tape and transcript)].

Sgt. Ramos described Fish, sitting handcuffed on the tailgate of Officer Selby’s pickup truck, quite differently than the State presents his testimony [Ans. Br. 10]. The “very best word” to describe Fish, according to Sgt. Ramos, was “isolated”. This testimony was completely left out by the State. Ramos explained “there was a lot going through his mind.” [R.T. 5/9/06, 48]. Fish “seemed appropriately upset for the situation that had occurred as described to me by Officer Selby.” [ Id. ]. “There seemed to be a level of remorsefulness about him…” [ Id. 49].

According to the statement by Fish given to Sgt. Ramos, documented by notes and a written report, Kuenzli did not yell “Don’t shoot” to Fish. [ Id. 67].[4] Instead, Kuenzli yelled that he would kill Fish for shooting his dogs. Fish, in response told Kuenzli that he did not shoot his dogs and ordered Kuenzli to stop. Kuenzli refused. [ Id. 69]. Fish yelled stop or he would be forced to shoot. [ Id. , 70-71]. Fish was in “fear for his life because the person running at him was saying, I’m going to kill you, you son of a bitch”. [ Id. 71].

The State’s description of Fish’s contact with Det. Feagan is similarly misleading. [Ans. Br. 13]. Fish, according to Feagan, was “somewhat depressed, that’s my terminology, frustrated, just he was really down on himself.” [R.T. 5/11/06, 188]. Feagan described Fish as “down, deep breathing, he was having a hard time with what happened to him.”

In the end, Fish repeatedly stated that he shot Kuenzli, because he believed Kuenzli meant to kill him and because Kuenzli (and his dogs) purposefully put Fish in legitimate fear for his life. Kuenzli acted out of irrational but intense anger. Fish acted out of reasonable, but intense fear.

Although Kuenzli was a homeless mental patient living out of his car with a pack of aggressive dogs, apparently not taking all of his psychiatric medications and in possession of a seven inch screwdriver, as he ran towards Fish while screaming his intent to kill him; Kuenzli’s character, like his motive and intent at the time he attacked Fish, was so sanitized by the trial court so as to make him unrecognizable to those who knew and feared him. The jury would not know until after their verdict that they had convicted an innocent man. Each witness’ testimony was restricted to their general opinion of Kuenzli’s character. The foundation for each opinion, which would have given the jury a basis to weigh its validity, was so limited by the trial court that the jury was left to speculate about the basis and credibility of the opinions. Fish was denied the opportunity to bring Kuenzli’s violent and unstable character to life before the jury. This denial was fatal to Fish’s defense because it was Kuenzli’s bizarre and violent character that forced Fish to decide, in a matter of seconds, whether he had any other choice but to shoot Kuenzli. Without specific acts of Kuenzli’s prior conduct, the jury could not fairly judge the reasonableness of Fish’s conduct.

The “prior acts” of Kuenzli were crucial to establish that Kuenzli was the “initial aggressor” and to present a “complete justification defense” – especially… given that Fish had the burden of proving “self-defense”. The critical “corroboration” of Fish’s claim that he believed Kuenzli intended to kill him was kept from the jury, because of (1) an arbitrary limitation on the type of character evidence an Arizona jury can consider and (2) the trial court’s misunderstanding of the relevance of Kuenzli’s “state of mind” at the time he attacked Fish. [M.E. 2/7/06; I.R. 121; Appx. 12]. These errors in the admission of relevant evidence stripped the jury of the tools necessary to judge Fish’s terror in the few fleeting seconds before he realized he had no choice but to fire his weapon. If Kuenzli’s intent or motive was truly only to rescue his dogs, then Fish’s use of force was excessive. If, on the other hand, Kuenzli intended to kill Fish, Fish’s use of force was necessary. Kuenzli’s state of mind and intent is critical in judging the reasonableness of Fish’s conduct, especially when Fish’s life depended on gauging Kuenzli’s intent correctly in a matter of seconds. Kuenzli’s pattern of specific, similar violent and aggressive acts over several years confirmed that Fish’s split-second assessment of Kuenzli was correct. Nevertheless, it was kept secret from the jury. The trial court denied the jury the opportunity to make its decision about Fish’s life and liberty based on the most compelling and probative evidence available. [R.T. 12/12/05, 102-135].

The jury should have been told that Kuenzli had a history of mental illness, a history of violent acts, that he often displayed an explosive temper, repeatedly threatened and assaulted people, and was irrationally protective of dogs. [R.T. 12/12/05, 31-37].

For instance, Judge Hamblin could only offer an opinion that Kuenzli had a propensity for aggression and violence, but could not explain why he believed Kuenzli was one of the most dangerous and bizarre human beings that he had ever met. [R.T. 5/16/06, 63-78]. Stephanie Quincey, a 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 he was dangerous was stricken. [Id].

Kuenzli’s former girlfriend, Rocio de Chavarriaga, testified that she had witnessed numerous incidents involving Kuenzli with John Gill, her son, her sister and her mother, but was only allowed to give her opinion that Kuenzli was a violent person. [Id, 84-92]. Similarly, John Gill, a friend of Ms. deChavarria, could only opine that Kuenzli was a violent and aggressive person. The foundation for his opinion, Kuenzli’s prior attempt to choke Gill to death, was kept from the jury. [Id, 94-99; Appx. 8]. Bernie Encinas, Placido Garcia, Steve Corich, Elvis Lynn Bray and John Boylan were also each limited to flaccid statements that Kuenzli was aggressive and violent. The most probative evidence, the details of the violent encounters they had with Kuenzli, were secreted from the jury.

While parties are generally prohibited from introducing character evidence at trial to prove that the person acted in conformity with that character, Ariz. R. Evid. 404, the rationale behind this “propensity” rule is not lack of relevance, but rather that the probative value of this evidence might be outweighed by unfair prejudice. See M. Udall & J. Livermore, Arizona Practice: Law of Evidence §83 at 170 (3d ed. 1991); Delozier v. Evans, 158 Ariz. 490 (App. 1988); Michelson v. United States, 335

U.S.

469, 475-76 (1948) (discussing Fed. R. Evid. 404). The rationale behind the exceptions to the propensity rule is that fundamental fairness requires that the fact finder be provided with the most complete and informed picture of the incident in question while still protecting the rights of the accused. Fed. R. Evid. 404 Advisory Committee’s Note.

a. The Rule 405(b) Limitation on Specific Act Character Evidence is Arbitrary and Violates Fish’s Right to Due Process and to Present a Complete Defense

The trial Court precluded Fish from offering the most probative form of character evidence, specific act evidence, because it concluded that in Arizona, a defendant may normally only use reputation or opinion evidence to prove the alleged victim was the initial aggressor unless the defendant knew of specific acts of aggression by the alleged victim at the time of the confrontation. [I.R. 121; Appx. 12]. The primary rationale for allowing only reputation or opinion evidence and not specific acts evidence is that the latter form, while more convincing and often times more reliable, may be more likely to arouse prejudice in the jury toward the alleged victim. Udall §83 at 170; Fed. R. Evid. 405 Advisory Committee’s Note. The Note explains that: “Of the three methods of providing character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time, it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time …”

This arbitrary limitation on character evidence denied Fish his constitutional right to present a complete defense because the specific act character evidence of Kuenzli’s propensity for violence had unique and substantial probative value which would have helped the jury identify the first aggressor. Commonwealth v. Adjutant, 824 N. E. 2d 1, 8 ( Mass. 2005); State v. Griffen, 99 Ariz. 43, 46 (1965); People v. Lynch, 470 N.E.2d 1018, 1020 ( Ill. 1984). Moreover, Fish had the burden of establishing that Kuenzli was the aggressor in order to prevail with his justification defense. Where a defendant must prove self-defense he should be given the broadest latitude on issues of the admission of evidence, especially in this case once the State opened the door by claiming that Kuenzli was only coming down the trial to rescue his dogs. State v. Tyler, 149 Ariz. 312, 314 (App. 1986).

Had the specific act evidence of Kuenzli’s violent behavior in the past been admitted, it would have both firmly supported the inference that Kuenzli was the first aggressor and strongly corroborated Fish’s version of the incident. Adjutant, 824 N.E. 2d at 9. The diluted and limited reputation and opinion evidence which the trial court allowed grossly misled the jury by painting a picture of Kuenzli as a man who may have been protective of his dogs but had never attempted to kill someone or resorted to physical violence in prior situations.

In this case, the evidence on the critical issue of the reasonableness of using deadly force was both incomplete and conflicting. The jury needed all of the available facts to determine what really occurred, including the specific details of Kuenzli’s prior history of violence and aggression, especially in situations involving his dogs. Lynch, 1470 N.E.2d at 1020. Kuenzli’s aggressive and violent character was relevant to show who was the first aggressor and that Fish’s account was credible regardless of whether Fish, at the time, was aware of the specific prior acts of Kuenzli. Id. The diluted and limited reputation and opinion character evidence which was allowed could never be an adequate substitute.

b. The Trial Court Erred in Not Allowing Fish to Introduce Specific Character Evidence Under the Rule 404(b) Exception

Separate from Rule 404(a) and 405 character evidence, used to establish propensity, Kuenzli‘s prior acts of violence and aggression should also have been admissible under Rule 404(b) to establish motive and intent. [Ans. Br. 36]. The trial court precluded the specific act evidence based on its finding that Kuenzli’s motive or intent, when he charged Fish, were not relevant to whether Fish’s actions were reasonable at the time he was attacked. [Id]. And to the extent that Fish sought to utilize Kuenzli’s prior history of violence to prove his motive or intent or to corroborate his testimony about the attack, the State responds that this “is precisely what Rule 404(b) forbids”. [Id].

Whether Kuenzli intended to use physical violence against Fish when he ran down the hill waving his fists and screaming at Fish is directly relevant to the reasonableness of Fish’s use of force to defend himself. Moreover, the admissions of the prior act evidence to prove Kuenzli’s motive and intent in rushing down the hill towards Fish was critical to rebut the State’s claim that Kuenzli was only coming down the hill to retrieve the dogs. The trial court therefore erred in precluding Fish from introducing specific act evidence under Rule 404(b) to establish Kuenzli’s motive and intent.

Rule 404(b) allows specific act evidence to be introduced to prove matters other than prosperity, especially when the specific act evidence is the most probative evidence available on the issue. Specific act evidence in a self defense case should be treated no differently than any other evidence of prior bad acts which, although not generally admissible for character purposes, are admissible for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or particular way of doing an act or particular skill. Udall §84 at 182-88. This list of exceptions to the character evidence rule is not exhaustive. [Id].

The specific act evidence should also have been admitted under 404(b) to bolster Fish’s credibility and to rebut the State’s argument that Kuenzli did not intend to use physical violence against Fish. State v. Cook, 150 Ariz. 470 (1986) (prior acts admissible to corroborate witness testimony); State v. Castaneda, 150 Ariz. 382 (1986) (prior acts admissible to rebut claim of opposing party).

Even if the specific act evidence was admissible under Rule 404(a), 404(b) or 405(b), the State responds that the trial court acted within its discretion in precluding the evidence pursuant to Rule 403. [Ans. Br. 37].

To the extent the trial Court ever even conducted a Rule 403 balancing, it did so based on the incorrect assumption that Kuenzli’s state of mind, motive and intent were not relevant. Moreover, the trial court failed to recognize that the concern about prejudice was of much lesser importance because the prior acts were of the alleged victim and not the accused. State ex.re. Romley v. Superior Court (Roper), 172 Ariz. 232, 236 (App. 1992).

The State further argues that allowing Fish to present evidence of specific instances of Kuenzli’s prior history of violence or aggressive conduct would have wasted time “litigating these collateral acts” [Ans. Br. 37]. Again, the trial court misunderstood that the issues of Kuenzli’s character, motive and intent were central, not collateral.

On remand, the trial court will have great discretion in correctly weighing the probative and prejudicial value of specific act evidence under Rule 404(b). The sound discretion of trial judge to exclude marginally relevant or grossly prejudicial evidence can be used to prevent the undue exploration of collateral issues, while allowing the jury to fully consider the probative character evidence which is central to Fish’s self-defense claim. The trial court will also be able to mitigate the potential dangers of prejudice and confusion by instructing the jury on the precise and limited purpose of the specific act evidence. Finally, juries should have the ability to draw their own inferences and form their own opinions in assessing how the victim’s prior violent conduct bears on the likelihood that the victim was the first aggressor and that Fish responded to Kuenzli’s threat of death or serious physical harm in an objectively reasonable manner. Under the unique facts of this case, the more probative specific act evidence is preferable to the less probative evidence of the opinions of third parties about the victim.

The State acknowledges that where the evidentiary ruling is arbitrary and “excluded important defense evidence but did not serve any legitimate interest, due process is implicated. [Ans. Br. 38]. The Arizona evidentiary rule which precludes specific act evidence is arbitrary and excludes important defense evidence without serving any legitimate interest where the victim’s acts rather than those of the accused are at issue. As a result, due process is implicated. See Holmes v. S. Carolina, 547

U.S.

319, 325, 328 (2006). Roper, supra, 172 Ariz . at 236; State v. Riggs, 189 Ariz . 327, 330 (1997).

If the jury was capable of hearing opinion or reputation evidence of a victim’s violent history or specific act evidence that was known to a defendant for the limited purposes of determining who was the first aggressor, then the jury was likewise capable of weighing specific act evidence with respect to the first aggressor issue irrespective of whether the defendant had knowledge of the evidence. Excluding specific act evidence, which is accepted as more probative than general reputation or opinion evidence, prejudiced Fish’s claim of self-defense and, given the high stakes involved, the jury should have had as complete a picture of the altercation between Fish and Kuenzli as possible before rendering a verdict. See Adjutant, 824 N.E.2d at 9; Lynch, 470 N.E.2d at 1020.

The error in precluding the specific act evidence was not harmless because Rules 404 and 405, and the Arizona cases interpreting them, are based on concerns about the potential for prejudice that comes with prior act evidence. Prior act evidence of a defendant’s character has been traditionally of concern in Arizona because it can be highly prejudicial, can raise collateral issues that divert the attention of the jury from the issue immediately before it and may lead the jury to convict the defendant because of his perceived bad character. While these concerns are applicable to evidence of the defendant’s character, they do not apply with the same force or consequence to evidence of the victim’s character because the victim is not on trial and criminal defendants should be given greater latitude in presenting exculpatory evidence, especially where in this case, Fish bore the burden of proving that he acted in self defense. Therefore, because admission of the specific act evidence of Kuenzli’s violent character is highly probative on the issue of first aggressor and Fish’s credibility and does not pose the high risk of prejudice in the traditional sense, the preclusion of the evidence was not harmless.

The Court granted the State’s motion, finding that Fish did not know that Kuenzli had the screwdriver in his back pocket at the time of the shooting, and that, therefore, the existence of the screwdriver was not relevant to Fish’s mental state or the defense of self defense. [3/30/06 M.E., I.R. 200; Appx. 12]. The court also concluded that the “existence of the screwdriver is not relevant to the victim’s motivation or intention”. [Id]. The trial court was incorrect because to be relevant evidence need only have any tendency to make an inference of fact more likely than not. Hawkins v. Allstate Insurance Company, 152 Ariz. 490 (1987).

In this case, Fish claimed he feared for his life because Kuenzli was charging at him, waiving his arms in a threatening manner while yelling that he intended to kill Fish. Fish further claimed that he feared Kuenzli could have been armed or would try to arm himself with a weapon or Fish’s own gun. [G.J. 239-240]. The fact that Kuenzli had concealed a seven inch screwdriver in his back pocket was relevant to show the reasonableness of Fish’s fear that Kuenzli would seek to arm himself with a weapon which he would use later to carry out his threat to kill Fish. The State also fails to address the decision in U.S. v. Lavendar, 224 F.3d 939, 941 (9^th Cir. 2000) where the court concluded “there is no doubt that a screwdriver can be used to stab someone in the throat or chest or to gouge out someone’s eye causing serious bodily injury. It was therefore properly characterized by the district court as a dangerous weapon.” Finally, the State cites no authority for its position that (1) the screwdriver was, as a matter of law, not a dangerous weapon or instrument and more importantly that (2) the State could deceive the jury by telling them that Kuenzli was “unarmed” when both parties and the court knew that was not true. Given the significance of whether Kuenzli was armed or not when he attacked Fish, the court’s error in allowing the State to deceive the jury regarding the screwdriver could hardly be harmless.

Most important, the issues of whether the screwdriver was a deadly weapon or a dangerous instrument are factual questions for the jury to determine. See State v. Pena, 209 Ariz. 503, 506 (App. 2005) (whether a razor blade was a dangerous instrument under the circumstances of the case was a jury question); State v. Schaffer, 202 Ariz. 592, 595 (App. 2002) (whether an object was used in such a way that it became a ‘deadly weapon or dangerous instrument’ is for the jury to determine); State v. Caldera, 141 Ariz. 634, 637 (1984)(“…whether or not an object is a deadly or dangerous weapon is a jury question.”); State v. Bustamante, 122 Ariz. 105, 107 (1979); (“where the weapon is such that its deadly character depends on the manner and circumstances of its use, the question is a question of fact for the jury.”); State v. Moss, 119 Ariz. 4, 9 (1978) (In a case involving a pair of scissors, the Arizona Supreme Court held “… if a weapon’s deadly character depends on the manner and circumstances of its use, it is for the jury to determine if it is a deadly weapon. We reaffirm this position and hold that it is for the jury to determine if the manner in which a weapon is used renders it a deadly weapon.”)

The parties should have been allowed to argue (1) whether Kuenzli concealed the screwdriver on his person prior to the attack; (2) whether Kuenzli came to harm Fish or simply to retrieve his dogs; and (3) whether the screwdriver was, under the circumstances in this case, a deadly weapon or dangerous instrument. The jury should also have been made aware that when Kuenzli came down the trail screaming his intent to kill Fish, he had the present ability to use the screwdriver as a weapon. The trial court’s ruling deprived the jury of a chance to determine these critical questions of fact.

Even if the court was correct in precluding the evidence that Kuenzli was armed with a screwdriver when he attacked Fish, it erred when it allowed the State to open the door and affirmatively mischaracterize the evidence by describing Kuenzli as “unarmed”. The false and misleading characterization of Kuenzli as “unarmed” affirmatively misrepresents the evidence in a way which seriously prejudiced Fish. The probative value of allowing the State to misrepresent Kuenzli as “unarmed” is substantially outweighed by the unfair prejudice to Fish when the State was allowed to represent that Fish had a weapon capable of causing serious injury but Kuenzli did not.

The State argues even if the evidence meets the minimal relevance threshold, the trial court could nevertheless preclude the evidence if it determined that its probative value was substantially outweighed by the danger of unfair prejudice or its potential to mislead the jurors. [Ans. Br. 46-47]. The State concludes that “it is shear speculation that (Kuenzli) might have used the screwdriver as a dangerous instrument against appellant.” [Ans. Br. 48]. If it is speculation whether Kuenzli would have attempted to use the screwdriver as a weapon against Fish, then it is equally speculative that he would not have. As a result, evidence of the screwdriver should have been admitted so that the parties could have argued and the jury could have decided if the screwdriver was used as a weapon when Kuenzli concealed it in his back pocket prior to attacking Fish. More importantly, the State should never have been allowed to misstate the evidence by affirmatively telling the jury that Kuenzli was unarmed when the issue of whether the screwdriver was or was not a dangerous weapon or instrument was a jury question.

The trial Court precluded evidence of Kuenzli’s mental illness and related medications based in part, on its earlier finding that Fish was unaware of Kuenzli’s mental illness prior to the confrontation. The court’s ruling was at odds with the well established principle that a defendant is “entitled to the benefit of any reasonable opportunity to prepare his defense.” State v. Tyler, 149 Ariz. 312, 314 (App. 1986).

Even if specific act evidence was not allowed, the medical records should have been available to Fish because they would have necessarily identified additional opinion and reputation witnesses who could testify concerning Kuenzli’s character and reputation for violence, aggression and mental illness. Again, the court’s rulings are contrary to the well established law that, when the defense of self-defense is raised by a defendant, character evidence of the victim is both relevant and admissible. See State v. Zamora , 140 Ariz. 338, 340 (1984).

The State, in its response, fails to address the decision in State v. Griffen, 99 Ariz. 43 (1965), where the Arizona Supreme Court concluded that the trial court had improperly excluded character evidence of the deceased for violence and aggression while intoxicated even though the defendant was unaware of such traits. The Griffen court noted “…. 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 deceased toward third parties when such acts may legitimately and reasonably be an aid 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.” Id, 46-47.

The trial court’s ruling regarding the medical records was itself at odds with the court’s ruling that opinion and reputation evidence of Kuenzli’s violent and aggressive history was relevant “on the issue of who was the initial aggressor in the confrontation and because it corroborates the defendant’s perception of the danger he faced that day.” [I.R. 121, 6]. Nevertheless, the court precluded Fish from obtaining the mental health records of Kuenzli after reviewing them in camera. [I.R. 52; Appx. 12]. Mr. Fish requests that this Court review the sealed records to determine whether they should have been disclosed.

Mr. Fish has a due process right, under the Federal and Arizona Constitutions, to present a defense. Chambers v. Mississippi , 410

U.S.

284 (1973). Fish also has a concomitant right to effective cross examination of the state’s witnesses at trial. Davis v. Alaska , 415

U.S.

308 (1974). Mr. Fish’s due process rights are also guaranteed in the Arizona Constitution at Article II, Section 4. This guarantee is congruent with the U.S. Constitution, Amendments V and XIV. State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 236, (App.1992); State v. Herrera –Rodriguez, 164 Ariz. 49, 52 (App. 1989).

Due process of law is the primary and indispensable foundation of individual freedom in our legal system. In Re Gault, 387

U.S.

1 (1967). The Arizona Supreme Court held that the denial of due process is a denial of fundamental fairness, shocking to a universal sense of justice. Oshrin v. Coulter, 142 Ariz. 109 (1984). If a trial court excludes evidence which precludes a defendant from presenting a theory of defense, the trial court’s decision results in a denial of the defendant’s rights to due process that is not harmless. [Id, 111]. Where a defendant’s constitutional right to due process conflicts with the Arizona Victim’s Bill of Rights, due process is the superior right. Roper, 172 Ariz. at 236; P.M. v. Gould, 212 Ariz. 541, 545-546 (App. 2006). Whenever there is a conflict between rights guaranteed by the United States Constitution with a provision of a state constitution, the United States Constitution must prevail by virtue of the Supremacy Clause, United States Const. Art. VI. Id.

In addition to its reliance on the Victim’s Bill of Rights, the State responds that the Banner Health medical records should not have been disclosed to the defense because they were protected by the physician/patient privilege and that there was no valid waiver of the privilege in this case. Normally, these statutory privileges have been considered waived only when the patient does so in writing or by in court testimony, or when the patient pursues a course of conduct inconsistent with observance of the privilege. Bain v. Superior Court, 148 Ariz. 331 (1986). Nevertheless, where the due process guarantees require disclosure of potentially exculpatory evidence, which are material to the defendant’s theory of the case, or necessary for impeachment of the State’s witnesses relevant to the defense theory, then Mr. Fish’s due process rights to a fundamentally fair trial and to present his justification defense overcomes the statutory physician/patient privilege just as the due process right overcomes the Victim’s Bill of Rights. See Roper, 172 Ariz. at 239; Gould, 212 Ariz. at 545-546.

The facts of this case are similar to those in Roper in many significant ways. In both cases, the defendants alleged that they acted reasonably when using force and only did so in self-defense; in both cases, the alleged victims were mental patients who the defendants alleged were manifesting their violent personalities when they attacked the defendants; and in both cases there was a long and well documented history of violence and psychotic behavior by the alleged victims who had been treated by a number of local mental health professionals and had been instructed to take psychiatric medications to control their behavior. See Roper at 237.

At no time does the State address the application of the Roper decision to the facts of this case. Instead, the State relies exclusively on this court’s decision in State v. Connor, 215 Ariz . 553 (2007). The facts in Connor are readily distinguished from those of Roper and of this case. In Connor, the victim, an intellectually and emotionally challenged young man, was found dead inside his apartment. Connor at 557. Contrary to the defendant’s claim of self-defense, an autopsy revealed that the victim had been stabbed or cut at least 84 times. Id. The injuries included several incisions to his throat, stab wounds to his back, cuts on his face and arms, the near severance of one finger, and numerous wounds to the chest, at least one of which resulted in the collapse of a lung. Id. Unlike Fish, the defendant in Connor fled after killing the victim. Blood spots on the victim’s clothing and saliva found on a cigarette butt at the scene were matched to the defendant through DNA testing. Id. When questioned by the police, unlike Fish, the defendant lied to the police about being at the victim’s apartment or knowing anything about the stabbing. Id. The defendant finally admitted to the stabbing but claimed he acted in self defense. Id.

Unlike in Roper or in this case, the defendant in Connor offered no evidence that the victim had a history of prior acts of violence and aggression which could help establish that he was the initial aggressor in the confrontation with the defendant. Unlike Connor, Fish, like the defendant in Roper, was aware of the alleged victim’s long history of violence and aggression at the time he sought disclosure of Kuenzli’s mental health records from Banner Health and provided the trial court with that evidence.

The Connor decision also recognized the significance of evidence that the victim may not have been taking his prescribed medication at the time of the altercation which could have supported the defendant’s claim of initial aggression and self defense. Connor at 560. In fact, the Connor court noted that: behavior that results from mental illness when appropriate medication is not taken would qualify as “a pertinent trait of character offered by the accused,” and thus be admissible pursuant to Ariz. Rules of Evidence 404(a)(2). Id.

It should also be noted that contrary to the Connor court’s description of the facts of Roper, the Roper court did not order disclosure of the mental health records based on a partial waiver of the physician/patient privilege by the victim. Instead, the Roper decision makes clear that the decision to require disclosure of all of the victim’s medical records was based on two independent grounds. First, the fact that, like Fish, the defense in Roper had established that the victim had a history of violence and mental illness and second, that there may have been partial waiver of the physician/patient privilege by the victim based on his conduct. Roper 172 Ariz. at 234-235.

Finally, the State argues that the trial Court correctly denied the defendant’s request for disclosure of the mental health records because the records were only sought so that a defense expert could conduct a “psychiatric autopsy,” which the Court ruled would, itself, not be admissible. [Ans. Br. 50]. In fact, Mr. Fish sought the disclosure of the medical records for two separate unrelated purposes: first, to provide additional character evidence of Kuenzli’s propensity for violence and aggression [I.R. 19] and second, for purposes of conducting a psychiatric autopsy. [Id]. Therefore, even if the trial court was correct in its decision to preclude evidence of the “psychiatric autopsy”, the records should still have been disclosed because they would have contained additional evidence of Kuenzli’s violent and aggressive character. Moreover, the records would have disclosed what psychiatric medication Kuenzli should have been taking at the time be attacked Fish.

The court allowed opinion and reputation evidence up to 90 days after the incident occurred. [I.R. 200; Appx. 12]. The State fails to cite authority for its position that there is a “logical relationship between the dogs’ character at the time of the shooting and up to 90 days after the shooting” [Ans. Br. 63] and it fails to address the cases that hold character evidence subsequent to the date of the incident is only admissible when there is a logical relationship between the later act and an earlier state of mind. See U.S. v. Watson, 894 F.2d 1345 (D.C. Cir. 1990) and cases in Op. Br. 43.

The Arizona Supreme Court has also held that subsequent act evidence is not admissible if it does not establish an essential element of the crime charged or is not relevant. In determining whether the defendant’s subsequent sale of narcotics two days after the charged incident was relevant, the Tuell court found that the two incidents were “separate, distinct, unconnected offenses committed two days apart” and that “there was nothing novel presented which would aid in identifying the defendant as the guilty party in both instances.” Id. at 345. Therefore, the court held the evidence was not relevant. Id. at 344.

Contrary to the State’s argument that the court limited the evidence to opinion and reputation testimony and did not admit any subsequent acts of the dogs [Ans. Br. 62], the State elicited testimony about several specific acts. For example, the State misrepresents Ms. Mindi Brogden’s testimony as limited to the facts that she found Hank (the Chow mix) “alongside SR 87 only hours after the shooting, brought him home that night, and turned him over to Coconino County Animal Control Officer Jack Roberts on the morning of May 13” and that her opinion of Hank was that he was not aggressive. [Ans. Br. 64]. Ms. Brogden actually went into great detail about coaxing the dog into her lap, carrying the dog to her truck and placing him inside the truck. [R.T. 5/5/06, 115-117]. She further testified that she brought Hank home with her and he slept with her 8 year old daughter in her bed that night. [ Id. 121].

Ms. Brenda Dupont’s testimony also was not limited to her opinion as argued by the State. Ms. Dupont testified that she was with her sister and 10 year old niece when they met Hank at the Humane Society, that she was petting Hank, rubbing his nose and stomach, putting her fingers in his mouth and looking at his tongue, and allowing her dog to go nose to nose with Hank. [R.T. 5/11/06, 116-118]. In addition to the subsequent acts, several specific acts of the dogs prior to the incident were also admitted, which further prejudiced Fish.[5]

The circumstances of the dogs subsequent acts were so different from the circumstances surrounding the Kuenzli incident, resulting in the evidence not only being irrelevant, but highly prejudicial. The dogs’ behavior on the later dates after the incident involved a contained and structured environment, with different people and female caretakers. The subsequent conduct of the dogs is not relevant to Fish’s terrifying encounter with Kuenzli and the unleashed dogs out in the wild. Finally, any probative value of the subsequent act evidence was greatly outweighed by the prejudicial effect.

Dr. Pitt possessed specialized knowledge beyond the experience or education of jurors about the unique physical and psychological effects sever trauma has on the mind and body. Fish only had a second to make a critical decision on how to react to the aggressor, Kuenzli, and his two attacking dogs.

Dr. Pitt has a bachelor’s degree in psychology, received a degree in osteopathic medicine in 1986, and completed a residency in psychiatry. He then did a fellowship in forensic psychology. As part of his practice he deals with issues of forensic psychology. He has acted as a consultant for the government in well known cases, including the murder of Jon Benet Ramsey, the rape charge against Kobe Bryant, and the Columbine massacre. [R.T. 12/12/05, 17-24].

The Defense made an offer of proof that Dr. Pitt would have testified about both physiological and mental responses that occur only during traumatic incidents. His testimony would have explained the interaction of an increased heart rate, complex motor skill deterioration, auditory exclusion, visual impairment and the loss of depth perception, increased respiration, increased blood pressure, loss of bowel and bladder function, sympathetic nervous system disruption, memory loss, and cognitive processing deficits. [Response to State’s Motion in Limine to Preclude Testimony of Dr. Pitt, I.R. 249; R.T. 4/24/06, 15-22]. His testimony would have included a discussion of adrenaline, cortizol, aldosterone, and other hormones. Dr. Pitt would have explained “vasoconstriction and vasodilatation” and how increased and decreased blood flows affect muscle strength and speed, which was particularly important because the State argued that Fish should have stepped aside or shot to wound, rather than stood his ground and defended himself with a gun. [ Id. ].

Scientific studies show that high levels of stress dramatically affect an individual’s sensory perception and physical performance…expert testimony can be crucial in effectively presenting a defense of justification or excuse…objective, scientific evidence can provide illuminating insight into the factors that affected the defendant’s conduct and may be invaluable in accurately assessing whether such conduct was reasonable under the law.

When the law contemplates a reasonable person, does it contemplate that the person is likely to experience such dramatically distorted perceptions of the world around her? Is it fair to ignore these elements in judging an individual’s conduct?

DuCharme, The Search for Reasonableness in Use-of-Force Cases: Understanding the Effects of Stress on Perception and Performance 70 Fordham L.Rev. 2515, 2551 (2002). Also see Fuentes v. Thomas, 107 F. Supp. 2d 1288, 1291 (D.Kan. 2000), discussed by DuCharme, supra, at 2554-57 (without [Dr. Lewinski’s testimony, the jury] would have had no way to understand…Thomas’ perceptions and recollections of events could have been distorted under the circumstances of the shooting). Scientific studies, including the Artwohl study[6]:

…show that individuals in dangerous situations are likely to experience dramatic perceptual distortions that will directly affect their ability to see, hear, and comprehend environmental stimuli….perceptual distortions can offer a compelling explanation of seemingly irrational or culpable behavior…

The self-defense standard in Arizona (a reasonable person in defendant’s shoes) generally follows the Model Penal Code. Heller, Beyond the Reas. Man? A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases, 26 Am J. Crim. Law 1, 25 and n. 272 (1988). The “reasonableness” of self-defense must be judged from the defendant’s “perception” of the event. Id. As a result, the physiological state of Fish at the time of the incident was particularly relevant.

It was the duty of the jury to determine whether or not Fish was justified in his belief that he faced an imminent threat and whether he acted reasonably under all the circumstances. The technical and specialized knowledge of Dr. Pitt was well beyond the common knowledge of the jurors. It covered both physical and mental processes. To conclude that “fear and stress are emotions experienced by all of mankind and are not distinctly related to some science, technical or specialized knowledge” is not only erroneous, it fails to appreciate objective, scientific evidence that would have been helpful to a jury, especially considering how severe the fear and stress experienced by Fish was compared to the every day fear and stress experienced by “all of mankind”. [M.E. 5/11/06; I.R. 299, 3; Appx. 12, citing Braley v. State, 741 P.2d 1061 ( Wyo. 1987)].

The trial court in Braley, which was upheld by the Wyoming Supreme Court, found that a jury should not surrender issues of reasonableness to the judgment of an expert. Braley at 1065. The Wyoming Supreme Court emphasized in “the ordinary self-defense act situation it is not necessary to rely upon expert testimony to explain the perception of the accused at the moment of crisis when he or she resorts to use of deadly force.” The circumstances faced by Fish included being alone with a charging, crazed man and two vicious attacking dogs after hiking all day through a remote forest, hardly the “ordinary self-defense act situation”. [ Id. ] In Braley, the defendant went into his house after a confrontation in an urban setting, loaded his rifle, and returned to the scene of the confrontation. He then fired a shot into the air and, after the victim asked whether or not he would shoot him, the appellant did so. He then walked up to the victim and said “get up, you’re not shot.” He then approached his wife and told her that they needed to get their stories together. He called the police, but lied about the event. All participants in the parking lot dispute were intoxicated. Id. In this case, Fish’s contact with Kuenzli and the two dogs drastically differs from the typical drunken parking lot confrontation discussed in Braley.

The State’s Answering Brief relies almost exclusively on Braley and the Arizona case of State v. Salazar, 182 Ariz. 604, 610 (App. 1995). The expert testimony rejected in Salazar was not the opinion of a medical doctor or psychiatrist, but of a “confrontation expert” that would have reported that there was a 90% likelihood that a person inexperienced with firearms would be disarmed by an assailant if he attempted to use a weapon in self-defense. Id at 610. As the court noted in Salazar, however, there was no evidence that the defendant fired his weapon because he feared being disarmed. Although Salazar noted that expert testimony regarding the use of force in self-defense as reasonable is “generally” not the proper subject of expert testimony, the opinion proffered in Fish’s case was different. To fairly judge the reasonableness of Fish’s conduct, the jury needed to understand how the sudden, traumatic event would have impacted Fish both physically and mentally. Then, the jury could have calculated whether it was “reasonable” for Fish to retreat to higher ground as opposed to shooting in self-defense, options expressly put on the table by the State in argument. The exclusion of Dr. Pitt’s testimony undermined the jurors’ ability to adequately gauge essential factors in reaching its decision. See, Filomeno v. State, 930 So.2d 821 ( Fla. , 2006).

It is overly simplistic to summarize the proffered testimony of Dr. Pitt as merely the “fight or flight” response. Nevertheless, “the ‘fight or flight’ response [is] state-of-mind evidence, analogous to battered spouse syndrome testimony that has been approved many times…We conclude that the psychologist testimony could have been permitted to testify about the ‘fight or flight’ response if the trial court concluded such testimony would have aided the jury in understanding the reasonableness of Filomeno’s belief that he was in mortal danger. It seems doubtful to us that the psychologist would have been permitted to testify that Filomeno’s actions were reasonable.” Filomeno v. State, 930 S.2d 821, 822-23 ( Fla. 2006). Understanding the physiological and psychological impacts that faced by any reasonable person in Fish’s position would experience was critical to his theory of self-defense. As recognized in Filomeno, the standard jury instruction for self-defense requires that the jury consider the defendant’s perceptions and limitations when assessing reasonableness from the perspective of a reasonable person in the defendant’s shoes.

The admissibility of expert opinion is the responsibility of the appellate court when it presents an issue of law or logic. State v. Moran, 151 Ariz. 378, 381, (1986), citing State v. Chapple, 135 Ariz. 281, 297, n. 18 (1983). Also see State v. Lujan, 192 Ariz. 448, 452 (1998) (the Arizona Supreme Court applied de novo review to a judge’s ruling on the admissibility of evidence based upon weighing its prejudicial and probative value).

Expert testimony has been liberally allowed to explain the effect of the “battered women’s syndrome” or the “Stockholm syndrome” on the state of mind of women who defend themselves, sometimes as first aggressors, because of their feelings of helplessness. Barnes, Admissibility of Expert Testimony Concerning Domestic Violence Syndromes to Assist Jury in Evaluating Victim’s Testimony or Behavior, Vol. 57 A.L.R. 315 (West Publication 1998 and 2007 Supp.); Mason, Admissibility of Expert or Opinion Evidence of Battered-Women’s Syndrome, on Issue of Self-Defense, Vol. 58 A.L.R. 5^th 749 (West Publishing 1998 and 2007 Supp).

The State argues that all jurors have experienced fear and are familiar with the emotions that it engenders. [Ans. Br. 69]. The State then argues that the “physiological reasons for those emotions are simply irrelevant”. [ Id. ]. Dr. Pitt would not have attempted to explain to the jury whether or not Fish acted “reasonable”. Instead, Dr. Pitt would have explained the physiological processes that affected Fish, which would have helped the jury decide whether or not Fish acted reasonable under the circumstances. Most of us have never faced an attack by a deranged man and two dogs intent on harming us. As a result, it is simply incorrect to conclude that most jurors have experienced or could comprehend the level of fear and trauma faced by Fish.

If the State’s argument was correct, then there would be no need for the medical examiner to explain at trial how Kuenzli died because all jurors have experienced death in their lifetime. The explanation of how the bullet entered Kuenzli, what organs failed, etc., would be completely irrelevant. Moreover, the fear and helplessness faced by battered women would never be the subject of expert testimony - - if the State’s argument was valid - - because all of us have faced fear and intimidation. The State was able to limit the testimony about Kuenzli and the unique threat he presented while also limiting the issue of Fish’s “reasonableness” to the jurors’ own life experiences. The jury should have been able to decide the issue of “reasonableness” with objective scientific information about Fish’s physiological limitations because they are not only extremely relevant in deciding whether or not he acted reasonable; but they are also well beyond the knowledge and expertise of the common juror.

The State argued that Kuenzli was coming fast down a rocky slope and that Fish “could have stepped to the side”. “Has he proved to you that it is more likely than not that he couldn’t shuffle up the side of the hill, turned around on Kuenzli and pointed the gun at him, maybe firing a warning shot? Has he proved to you that it is more likely than not that he could have shot him to injure?” [R.T. 6/2/06, 12:10 p.m., 31]. The State argued that Fish hadn’t met his “burden of proof” by showing that “the extent to which he used deadly force is the extent to which a reasonable person would have used it under the circumstances.” [ Id. , 33]. Based upon Fish’s experience with firearms, the State argued that Fish should have shot to injure, not to kill Kuenzli. The testimony of Dr. Pitt would have placed the evidence and argument of the State in perspective. The questioning by grand jurors revealed that the common juror believes the subject of an attack should shoot to injure. [Ex. 309, 251-52, 259]. The testimony of Dr. Pitt would have addressed the jurors’ concern about less lethal options and was essential for a fair trial. The trial court’s refusal to allow Dr. Pitt’s proffered testimony violated Fish’s right to present a complete defense in violation of due process of law. (14^th Amendment to U.S. Con. and Art. 2, §§4 and 24, Ariz. Con.).

As detailed in the Opening Brief Statement of Facts, Fish was repeatedly painted as a “gun nut” before the jury. If the physiological process of experiencing fear at the moment of truth is irrelevant, it is hard to imagine how the evidence regarding “three years” of gun ownership, possession, use and storage prior to the shooting to convince the jury that Fish intended to use lethal force in firing at Kuenzli is relevant. Fish conceded that he fired a deadly weapon with the admitted intent to stop Kuenzli. Nevertheless, the State argued that Fish’s “ownership and experience with guns was clearly relevant to prove the rather simple proposition that he intentionally or knowingly killed Grant Kuenzli, and went directly to his claim of justification…” [Ans. Br. 73]. Three years of gun ownership and experience is not “relevant”, let alone “clearly relevant”, to prove that someone who shoots a gun intends to use deadly force or that the use of such force was not justified.

During the cross-examination of Fish at the grand jury proceeding, he was asked about first shooting a gun when he was ten or eleven years of age. [Ex. 309, p. 180]. He was asked about target shooting as a kid, testimony well beyond the “three years” parameter set by the trial court. Fish testified in response that he first began to acquire firearms after college in the mid-seventies. [ Id. , 182]. Fish was explicitly asked about all handguns he owned, all rifles that he owned, and all automatic pistols that he owned. [ Id. 191]. Fish estimated that he owned a dozen handguns. [ Id. 192]. He estimated that he owned a dozen or two handguns and rifles. [ Id. 193].

Fish was grilled about whether the Kimber 10mm was one of the “most powerful” guns that he owned. [ Id. 193-94]. He was questioned extensively about the hollow point bullets that he used. [ Id. 194-95]. Fish was asked about the impact of a hollow point bullet upon a subject, which admittedly causes the bullet to expand. [ Id. 197-98, 257-59]. He was asked about the written training materials that he received when he took a concealed weapons course. [ Id. 199-200]. Fish was questioned extensively about the safety mechanism on the 10mm handgun. [ Id. 201-202]. He was questioned about whether or not the gun was loaded in the automobile during his drive to northern Arizona . [Id]. None of this evidence was relevant to the self-defense issue.

During the cross-examination of Debora Fish, the State again elicited substantial “gun history” testimony. The State asked her about ammunition that was found in the Fish family van, including .380 caliber bullets. [R.T. 5/23/06, 127]. She was questioned about the CCW courses that she completed including “situational shooting”. [ Id. 130]. She was asked about where in the house the Fish family stored guns. Debora answered that they kept guns in her bedroom in large, metal gun cases. [ Id. 160]. Again, other than to bolster the State’s gun nut theory, the evidence was irrelevant.

The State argues that extensive evidence regarding gun ownership, possession and use was merely “cumulative”. However, the State has missed the point. The defense “drew the sting” and asked Debora Fish about the family ownership of guns in light of the trial court’s ruling that the State would be allowed to cross-examine her about three years of gun history and beyond.

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

U.S.

v. Clifford, 640 F.2d 150, 153 (8^th Cir. 1981)[7]. Gun ownership and use is protected by the Second Amendment to the United States Constitution and Article II, §26 of the Arizona Constitution. Nevertheless, the character of Fish was attacked repeatedly before the jury because of the exercise of his Second Amendment rights. The “history” of gun ownership was irrelevant and prejudicial. Rule 401, 402, 403, Ariz. R. Evid.

At trial, the State’s firearm expert, Lucien Haag, described Fish’s handgun as a sophisticated, high-quality target shooting pistol which is “more powerful” than standard police pistols. [R.T. 4/26/06, 2^nd Vol, 121-22]. Mr. Haag described the handgun possessing a five inch barrel. [ Id. 124-26]. Then, Mr. Haag described in detail the Federal Hydra-Shok 180-grain bullet that was used by Fish, including its “mushroom” effect once it hits a target. [ Id. 135-38]. In fact, Mr. Haag presented a diagram of a similar gun [Ex. 84] and a photograph of a Hydra-shok cartridge that was disassembled [Ex. 85]. He also presented a high-speed photograph showing a similar caliber bullet, gun powder, and smoke. He then showed photographs of a Hydra-shok bullet entering and exploding a gelatin block at the velocity of 1,080 feet per second. [ Id. 145-50].

Although the screwdriver concealed inside of Kuenzli’s back pocket was excluded from the jury as relevant, the State was allowed to present testimony that a “military-appearing pouch” was found inside of Fish’s backpack that contained magazines for his pistol, including 9 cartridges in the first magazine and 8 cartridges in the second. [R.T. 4/26/06, 2^nd Vol., 92-94 (Thomas Ross, Crime Scene Investigator)]. After extensive argument [R.T. 5/4/06, 21-23, 39] the Investigator, Mark Christian, was allowed to provide an inventory of the contents of Fish’s van, which was found more than one mile from the scene of the shooting. Photographs, consisting of Exhibits 25-31, were admitted as evidence at trial. [ Id. 28-29]. The photographs revealed cardboard targets and a partial box of 10mm ammunition. Exhibits 132-37 were admitted into evidence, which constituted items seized from Fish’s van [Id. 31-34], including a .22 caliber magnum shell, .380 caliber ammunition found in a magazine, 10 mm automatic ammunition found in a box manufactured by Blazer, other cartridges and cardboard targets. [ Id. 40-49]. The admission of this evidence was not only irrelevant, but highly prejudicial. Rule 401, 402, 403, Ariz. R. Evid.

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

The State, without citing any legal authority, argues that the testimony challenged by Fish was cumulative and consistent with his own defense. Lost in the process, however, is the puzzling allowance by the trial court of Fish’s explanation that “brandishing a weapon” is unlawful. Fish was asked about brandishing a weapon by grand jurors. Fish explained that brandishing a weapon is a crime “in and of itself”. [Ex. 309, p. 254].

It was inappropriate for the trial court to allow Fish to explain the “law” on brandishing a weapon when it was never supported by a jury instruction, statutory reference, or otherwise. The issue of “brandishing a weapon” was never reached in Fish’s case. Fish was not a legal expert nor a firearms expert. It was obviously more prejudicial than probative for Fish to explain the law on brandishing a weapon when he was not charged with brandishing a weapon and the State never asked for a jury instruction on brandishing a weapon.

The grand jury asked Fish repeatedly why he did not fire a “warning shot” at Kuenzli and why he did not shoot to injure Kuenzli, rather than kill him. The questioning was irrelevant and prejudicial. The same questioning would not have been allowed by counsel in front of a petit jury. It was unfair for Fish to carry the burden of dissuading the jury that he could have “winged” Kuenzli, rather than shoot at center mass. Even though an expert witness at trial, Mr. Anthony, testified about shooting at center mass, the same questions and answers should not have been posed to Fish or considered by the petit jury because he was not acting as an expert at trial.

For similar reasons, questions and answers posed to Fish about the “legal consequences” of injuring someone should not have been allowed. The questions did not relate to the issue of justification, but were collateral issues that served to prejudice Fish and a fair assessment of his use of deadly force.

The State contends that “background” information about Fish need not be presented in “fairness” under Rule 106, Ariz. R. of Evid., in light of the admission of other portions of his grand jury testimony. The questioning of Fish about the “legal consequences” of injuring someone with a firearm and questions about brandishing a weapon dictate that a brief summary of his background also be presented to the petit jury in the same fashion that it was presented to the grand jury. The questioning by the grand jury was not properly placed in context and in perspective without a brief explanation of Fish’s background. As a result, the exclusion of the “background” testimony did violate Rule 106, Ariz. R. of Evid.

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

The State does not contest the authorities or reasoning set forth in Fish’s Opening Brief. Instead, the State cites a single case from the Ninth Circuit purporting to provide a minority view contrary to the majority opinion expressed in the Opening Brief. In fact, however, the Court of Appeals in U.S. v. Taghipour, 964 F.2d 908, 910 (9^th Cir. 1992), did not rule that transcripts may generally be provided to the jury during deliberation, but only that it agreed with the apparent minority view of three other circuits that a transcript of an audio tape may be presented to the petit jury when the audio tape itself has also been admitted into evidence. The transcript in Taghipour not only related to an admitted audio tape, but one translated from another language in part. Id. The grand jury testimony of Fish, however, did not relate to an audio tape. The State has not even attempted to rebut the majority view that introduction of the grand jury transcript resulted in unfair advantage to the State. [Fish Op. Br. 47-48]. The trial court denied introduction of other transcripts [R.T. 6/26/06, 10] because they would “unduly highlight” the testimony.

Besides Taghipour, the State cites U.S. v. Williford, 764 F.2d 1493, 1503 (11^th Cir. 1985), which in turn relies upon U.S. v. Costa, 691 F.2d 1358, 1362 (11^th Cir. 1982), which affirmatively provides, once again, that the transcript of an audiotape received into evidence may be shown to the petit jury for consideration. The logical rule is opposite when no audiotape has been admitted. Reversible error has occurred.

The State concedes that it redacted the grand jury transcript incorrectly. However, the State mistakenly concludes that Fish otherwise testified regarding the lack of time to fire a “warning shot” at Kuenzli. [Ans. Br. 81-82]. In fact, however, the omitted testimony from Fish related not to firing a warning shot, but specifically referred to wounding Kuenzli, rather than killing him. The grand juror, Mr. Farren, expressly asked Fish whether or not he could have “maybe shot the man in the leg or something”. [Ex. 309, p. 251]. Fish was in the process of explaining why he shoots at someone “center mass” rather than in the hand or foot. [ Id. 252]. Although Fish may have explained to Officer Selby in another statement that he had no time to fire a warning shot, the grand jury testimony of Fish about why he was shooting center mass, rather than attempting wounding Kuenzli, was equally important but improperly redacted.

The State argues that the redaction at pages 173-74 of the grand jury transcript was insignificant. [Ans. Br. 84]. The redacted statement explains why Fish felt that he was forced to shoot Kuenzli, which related directly to the “reasonableness” of his actions. He explained that he was given a bad choice, but made the decision to live and go home, to be a father and a husband. He also explained that he was sorry for the life he took that day. In light of the fact that the “reasonableness” of his state of mind and actions were an issue at trial, Fish’s own explanation of the basis for his actions should have been allowed. The statement provided to the grand jury was improperly redacted. It was unfair to allow part of Fish’s answer yet cut off the remaining portion of the answer, which explained the basis for his “reasonable” action using deadly force. [R.T. 5/9/06, 275-77].

Finally, the trial court forever discounted the testimony of Fish by excluding G.J. 266, lines 3-12 [Appx. 10]. First, Fish explained that he would only shoot a dog “if he could not get the dog to stop…any other way.” Then, particularly important in light of questions from the grand jury, he explained why he was forced to shoot Kuenzli because he could not “get Kuenzli to back off.” The excluded answer by Fish was essential to explain the portion of the answer allowed by the court. [Ans. Br. 85]. Fish is not “nit-picking”, but asserting that full and complete answers to questions posed by grand jurors should have been presented to the petit jury if significant portions of any of the answers were admitted. The State is correct in that the trial court is required to place any portions of grand jury testimony into evidence when necessary to qualify, explain or place into context other portions already introduced. State v. Prasertphong, 210 Ariz. 491, 499 (2005). The incomplete answers allowed by the court denied prevented the jury from considering Fish’s full and complete explanation of the “reasonableness” of his conduct.

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

The admission of Lucien Haag’s testimony regarding the Kimber handgun and its 10mm ammunition was erroneous. Some issues are so important that overriding considerations concerning the integrity of the system will excuse a party's failure to raise the issue in the trial court. State v. Gendron, 168 Ariz. 153, 155 ( Ariz. 1991). This is especially the case when the trial court’s error involves the loss of federal constitutional rights. [ Id. ].

9. Testimony About Hand-to-Hand Combat and the Physical Description of the Scene of the Shooting Should Have Been Allowed

Medical Examiner Investigator William Thompson should have been allowed to testify regarding obvious disturbances in the soil that he observed while examining the scene of the shooting because it showed the path taken by Kuenzli when he was descending upon Fish from higher ground. Although he could not provide expert “tracker” testimony, he was not offered as a tracker. His testimony of the physical evidence he observed would have confirmed Fish’s testimony and painted an accurate picture of the scene for the jury. The observations of Thompson were documented by photographs. It was an abuse of discretion not to allow the photographs to be displayed to the jury.

Thompson testified that he spent approximately one hour documenting Kuenzli’s path of travel and that he took photos of the “travel path and things of that nature” of Kuenzli. [R.T. 5/19/06, 163]. Thompson saw depressions in the ground, disturbances in the soil, broken twigs and pine needles, and ground cover, etc. [Id. 168]. Thompson photographed the soil disturbances in order to document the path taken by Kuenzli. [ Id. 169]. It is ironic that a skilled investigator was not able to testify that he observed Kuenzli’s “tracks” along the trail because it was “speculation”, but Dr. Horn was allowed to testify that bullet wounds to the hand and forearm of Kuenzli were “consistent with defensive wounds” when that was only one of several possible explanations.

Arizona law allows lay opinions on numerous similar subjects. See State v. Miller, 186 Ariz. 314, 322 (1996) (groves in sand made by belt buckle and shorts; vegetation in victim’s hand came from nearby plant; photos admitted); State v. Amaya-Ruiz¸166 Ariz. 152, 168 (1990) (comparison of footprint and shoe made by personal observation of non-expert allowed; photographs permitted so jury could reach their own conclusions). The testimony and photographs of Thompson would have similarly allowed the jury to reach logical conclusions based on physical evidence that would have corroborated Fish’s description of the event, the path and speed of Kuenzli, the slope of the area at issue and tactical disadvantage held by Fish.

Contrary to the State’s argument, the tactical disadvantage of defending oneself from an attacker charging down on someone from higher ground simply illuminates an important factor to be considered by the jury in determining whether Fish had other less lethal options. It does not intrude upon the juries’ determination of whether or not Fish acted reasonably. [Ans. Br. 91-92]

10. Dr. Horn’s Speculative Testimony was Inadmissible, but Acted as Crucial “Forensic Science” for the State’s Closing

The State relied so much upon the testimony of Dr. Horn, especially regarding “defensive wounds” during its closing argument that it appears beyond doubt that Fish would not have been convicted but for the testimony. Prior to trial, Fish filed a motion in limine to preclude the State from presenting expert testimony regarding defensive wounds. [I.R. 205]. The State argued that Dr. Horn could testify that the wounds suffered to his arm and hand were “consistent” with “defensive wounds”. [I.R. 215]. The State argued that Dr. Horn should be able to opine that the wounds suffered by Kuenzli to his hand and arm were consistent with defensive wounds even though that opinion was, at best, only one of three different possibilities and was not supported by any other evidence making it more likely than not that the wounds were “defensive.”

The trial court found that at least three different scenarios existed to explain the injuries to Kuenzli’s arm and hand and that they were “equally possible”. The court then mistakenly concluded that the competing theories were not speculative even though none of them were more probable than the others and certainly not more probable than not.[8]

All of the opinions offered by Dr. Horn were supportive of the State’s theory, but all were also speculative at best. On cross-examination, Dr. Horn conceded that Kuenzli could have had a clenched or closed fist wrapped around his thumb at the time of shooting, rather than an open hand. [R.T. 5/2/06, 37]. The tips of the fingers may have been out of the way of the track of the bullet. [ Id. 40]. Dr. Horn, at times, admitted that position of the hands was not necessarily indicative of an offensive or defensive wound, but simply meant that his hands were in front of his torso. Dr. Horn could not interpret Kuenzli’s motivations at the time of the shooting. His hands and arms could have been in front of his torso simply because he was running. The wounds could be “offensive” as easily as “defensive”.

Nevertheless, on redirect examination, Dr. Horn testified that the injuries to Kuenzli’s hands were ultimately “consistent” with defensive wounds. [ Id. 80-81]. Dr. Horn speculated that it is unusual for someone to carry their hands in front of their torso while running. In other words, Dr. Horn could only testify that Kuenzli’s hands were in front of the torso at the time of the shooting, but could not give an expert opinion about why, including whether the wounds were defensive rather than offensive. [ Id. 43]. Yet, the hands could have been in front of the torso without being “offensive” or “defensive”, running or pointing or gesturing or balancing.

The State appears to accept the distinct likelihood that Dr. Horn’s testimony was legally inadmissible and, as a result, now argues that the error was harmless. However, the State heavily emphasized the testimony of Dr. Horn in closing argument. The State stressed that “defensive wounds” were suffered by Kuenzli. [R.T. 6/12/06, 73, 79; R.T. 6/12/06, 12:10 p.m., 110-11]. The State argued that the “circumstantial evidence” of defensive wounds, as interpreted by Dr. Horn, is “just as good as direct evidence”. [ Id. 74]. The wounds suffered by Kuenzli were “consistent with defensive postures of other victims” in other homicide cases. [R.T. 6/12/06, 73-74, 75]. The State forcefully argued, based on the opinion of Dr. Horn, that Kuenzli “was attempting to defend himself against not one, but two shots”. [ Id. 75]. The State described the defensive wounds as a matter of “forensic science”. [ Id. 73].

Fish’s motion to preclude the speculative testimony of Dr. Horn was argued before the trial court on April 19, 2006. Fish’s attorney argued that there were “literally ten possible explanations for why Kuenzli’s right hand [and arm]” was in front of his torso. [R.T. 4/19/06, 49]. Therefore, not one of the possible explanations was within a reasonable degree of medical probability. In response, the State argued that the injuries were “consistent” with defense wounds, which was probative according to the State. The testimony of Dr. Horn would illuminate what kind of threat Fish was facing, according to the State. [ Id. , 51-52].

The trial court relied upon State v. Paxson, 203 Ariz. 38 (App. 2002) [9], which was discussed in the opening brief. The trial court’s allowance of the speculative testimony of Dr. Horn, however, must be considered a far-fetched application or extension of Paxson. Medical testimony is particularly persuasive in front of juries. An opinion within a reasonable degree of medical probability is an evidential standard that exists not only in Arizona , but throughout the country. It is an important evidentiary rule that must be enforced in order to prevent unreliable medical testimony from swaying juries, which is exactly what happened in Fish’s case. The State used Dr. Horn’s testimony to support the argument that Kuenzli was simply running to get his dogs and was shot as he was trying to shield himself from the aggressive shots fired by Fish. The State argued that Kuenzli suffered defensive wounds as a matter of “forensic science”.

A careful review of the legal authorities relied upon by the State simply reinforces Fish’s argument that the speculative, “consistent with” testimony of Dr. Horn was not only inadmissible, but clearly more prejudicial than probative. First, the State relies upon State v. Murray, 184 Ariz. 9, 29 (1995), to argue that the trial court had the discretion to allow expert testimony even if it could not be coined in terms of probability. The State then cites several cases for the proposition that expert testimony can be allowed even if not expressed in terms of probability. The State effectively argues that expert testimony may be allowed as long as any possible inference could be gleaned from physical evidence. We contend that the State is not only wrong, but its argument would allow junk opinions to pervade the rational, truth-seeking process of a jury trial. [Ans. Br. 94-96].

In State v. Murray, the trial court allowed testimony about footprint evidence based upon the training and experience of Detective Lent. The court noted that the training and experience of the expert must qualify him or her to render “enlightened opinions and draw sophisticated conclusions from the particular evidence available”, citing State v. Dixon, 153 Ariz. 151, 155 (1987). The appellant merely argued on appeal that Detective Lent was not qualified, not that the expert’s actual form of opinion or testimony was inappropriate.

The State then cites Saide v. Stanton, 135 Ariz. 76, 78 (1983), which stands for the proposition that the probability of the expert opinion must be considered on the basis of the entire record, not simply the magic word or phrase used by the expert, which is correct. The State’s argument tacitly admits that the expert opinion, however, must be supported by a logical conclusion of more likely than not based upon the entire record. In Stanton, the Arizona Supreme Court expressly stated that even future medical expenses, once an injury has been documented as permanent by competent medical evidence, must be supported by the “probable need for and nature of the future treatment, plus evidence of the cost of the treatment.” Id. at 78.

Whether future medical expenses are reasonably probable or certain is determined “from all the relevant circumstances which are before the court”. The use or refusal of an expert to use a “magic word” or phrase such as “probability” is not determinative. The trial court is allowed to determine probability or lack thereof if the evidence, taken as a whole, is sufficient to warrant such a conclusion.

Id. at 79 [cite omitted]. As explained in footnote 1 of the Stanton decision, there was sufficient evidence for the jury to find a “probability” of the need for future medical care for dental work on both crowns and bridges. The Court reiterated that the Arizona Rule, even regarding future medical expenses in light of a documented injury, must be “reasonably probable”. Id. at 77. The issue in Stanton related more to “damages” than “causation”. Yet, the standard employed is higher than the one applied in Fish.

Both Paxson and State v. Ellevan, 179 Ariz. 382, 384 (App. 1994), support the proposition that an expert opinion must be more likely than not or, at a minimum, equally probable (50-50%). It is impossible for the State to cite relevant Arizona cases without running across language suggesting the same conclusion. [Ans. Br. 94]. As noted in Paxson:

It is not necessary that such evidence be sufficient to support a finding of ultimate fact; it is enough if the evidence, if admitted, would render the desired inference more probable [than not].

Despite the opinion of Dr. Horn, interpreting one “possible” inference raised by an injury to someone’s hand or arm by a bullet that eventually penetrated their chest, there was no other evidence to support the conclusion that Kuenzli suffered defensive wounds. Dr. Horn’s interpretation of the wounds as “consistent with defensive wounds” was nothing more than a speculative judgment about one possibility within an array of many possible inferences. No other portion of the trial court record supported his possible interpretation. His “opinion” stands or falls on its own. The State does not argue otherwise.

State v. Ellevan, 179 Ariz. 382 (App. 1994) stands for the proposition that no magic words must be used by the expert, but confirms that the conclusion must be supported by probability, rather than possibility. The fact of the matter is that the inference raised by Dr. Palmer in the Ellevan case was supported by other, strong evidence.

Of two possible alternatives - - the petitioner was affected with HIV before or after sentencing - - the evidence introduced at hearing intended only to support the first… A scientific study received in evidence…showed a statistically probable incubation period of more than seven years, significantly predating sentencing…and petitioner testified without objection that he had shared needles and engaged in sexual relations approximately two years before sentencing with a women who later developed AIDS.

Arizona courts have often held in other context that medical opinions need not be stated in terms of medical probability to be probative even where probability must be shown.

Id. at 384. In other words, medical testimony, when “inconclusive” may be of value when considered with other evidence. Id. , citing Butler v. Wong, 117 Ariz. 395, 396 (App. 1977). In Ellevan, the testimony of Dr. Palmer was substantially fortified by the introduction of a scientific study and the testimony of the petitioner, which affirmatively showed that he likely contracted AIDS two years prior to sentencing. The same composite of evidence simply does not exist to support the critical opinion of Dr. Horn that Kuenzli suffered “defensive wounds”, predicated only upon the single fact that his hand and forearm were in front of his torso when he was shot. Nonetheless, the testimony of Dr. Horn effectively acted to juxtapose the positions of Fish and Kuenzli as the “first aggressor”. The State emphatically relied upon the “forensic science” of Dr. Horn in closing argument to convict Harold Fish. The error was not harmless.

It was misleading, powerful, and unfair to allow Dr. Horn to testify that one of many “possible” explanations was “consistent with defensive wounds”. “[E]liciting an expert’s opinion that the victim’s conduct is consistent with the crime having occurred” carries “a significant risk that such testimony” will unfairly sway the jury. State v. Moran, 151 Ariz. 378, 386 (1986); State v. Tucker, 165 Ariz. 340, 349 (1990)(child molestation cases). The testimony of Dr. Horn not only swayed the jury, it was the decisive “evidence” in favor of the State and against Fish. Yet, Dr. Horn’s testimony fell below evidentiary standards and was misleading. It violated due process of law.

The State repeatedly cites State v. Van Adams, 194 Ariz. 408, 416 (1999) for the proposition that “harmless error” has occurred. Van Adams, however, contains only a conclusionary statement about “harmless error”, which related to testimony from a lay witness that “may well have lacked probative value”, but “constituted only a small portion of her testimony” and was not unfairly prejudicial. Id. Dr. Horn’s unreliable but powerful testimony raised a “reasonable probability that the verdict might have been different had the error not been committed…To put it differently, is there any reasonable doubt that the jury would have found the defendant guilty in the absence of [the inadmissible evidence]?” State v. Williams, 133 Ariz. 220, 225 (1982) (cited in Van Adams). More than a “reasonable doubt” exists that the jury would not have convicted Fish absent the misleading “expert” testimony of Dr. Horn.

The trial court abused its discretion in refusing to grant an evidentiary hearing to consider Fish’s claims of juror misconduct. Fish’s motion for new trial was supported by law and three affidavits. Fish raised three issues in that motion: a) that the jury received, through juror Kathleen Ryza, evidence not properly admitted, regarding the drug Effexor, b) that the jury received information not properly admitted regarding the stay and appeal of the burden of proof, and c) that juror Rita Guthrie violated the court’s admonition by speaking with non-jurors about the case, that she thereby necessarily received evidence not properly admitted, and that she changed her verdict on the basis of that evidence.

The State correctly notes that only the first two claims were explicitly enumerated in Fish’s motion for new trial. Fish may not have framed the issue perfectly on the first attempt, but the fact remains that these issues are, in each case, violations of Ariz. R. Crim. P. 24.1(c)(3)(i). The issue of extrinsic evidence was raised and it was supported by specific facts alleged in sworn affidavits. The affidavits contained more than sufficient evidence that extrinsic evidence was considered. Three people came forth to swear that juror Guthrie spoke at length with them about the case, at length and in blatant violation of the court’s admonition. Three people came forth to swear that juror Guthrie’s verdict was changed. These shocking allegations demanded further inquiry. The failure to conduct it was an abuse of discretion.

The instruction on self-defense [I.R. 347, 18; R.T. 6/12/06, 46] expressly stated that “a person may use deadly force in self-defense only to protect against another’s use or threatened use of deadly physical force”, rather than the “apparent” use or threat of deadly force. The error was critical in Fish’s case because he shot Kuenzli precisely because of the apparent threat of deadly force.

The self-defense instruction submitted by Fish stated that an honest belief in the necessity of self-defense is “insufficient” [I.R. 328, Inst. 404]; but the trial court stated that it was “immaterial”. The language employed by the court would encourage the jury to affirmatively disregard the grand jury testimony and statements made by Fish.

Although Korzep v. Superior Court, 172 Ariz. 534, 540 (App. 1992), involved A.R.S. §13-411 (crime prevention) rather than A.R.S. §13-404 (self-defense), the analysis is the same. [Ans. Br. 109]. A.R.S. §13-411 also requires “an objective, third person measure of reasonableness of a defendant’s preventative force”. Yet, it includes “both a subjective and objective component”. Korzep, 172 at 540. The same is true of self-defense. Fish’s honest belief may have been “insufficient”, but was not “immaterial.” The instruction undercut Fish’s statements and grand jury testimony (unfair comment on the evidence) and erroneously summarized the law of self-defense:

What kind of belief does self-defense require? Is it enough that you honestly believe that someone is going to kill you, seriously injure you, or commit some other serious felony against you or your property? No. Most statutes require not only that you believe that you need to use force but that a reasonable person in the same situation also would have believed that force was necessary. Specifically, you’re justified in killing someone if you honestly and reasonably believe it’s necessary.

The jury instruction on second degree murder invited the jury to convict Fish even if he faced apparent deadly force as long as the jury ultimately found that he did not, in fact, face deadly force. The instruction unfairly discounted Fish’s honest and reasonable belief that deadly force was necessary. Erroneous jury instructions can violate due process and render a trial unfair. Ho v. Carey, 332 F.3d 587 (9^th Cir. 2003)(erroneous instruction on general intent and malice in second degree murder case violated constitutional rights of accused citizen to have jury correctly decide every element of the offense); Powell v. Galaza, 328 F.3d 558 (9^th Cir. 2002)(erroneous jury instruction removed the element of specific intent from the case); Keating v. Hood, 191 F.3d 1053 (9^th Cir. 1999), cert. denied, 531 U.S. 824 (2000)(jury instruction that omitted mens rea element violated due process of law).

Plain error occurs when the trial court fails to instruct on an “element” of the offense because the instruction violates substantial due process rights. U.S. v. Alferahin, 433 F.3d 1148, 1157-58 (9^th Cir. 2006); State v. Ontiveros, 206 Ariz. 539 (App. 2003).

The responsibility to resolve a question of law or logic rests squarely with the appellate court. “Then it is our final responsibility to determine law and policy and it becomes our duty to ‘look over the shoulder’ of the trial judge and, if appropriate, substitute our judgment for his or hers.” State v. Chapple, 135 Ariz. 281, 297 n.18 (1983). “[A] trial court has a duty to instruct on the law relating to the facts of the case when the matter is vital to a proper consideration of the evidence, even if not requested by the defense and failure to do so constitutes fundamental error.” State v. Avila , 147 Ariz. 330, 337 (1985).

If a jury instruction is vital to the rights of an accused citizen, the trial judge is required to instruct the jury on its own motion. State v. Tittle, 147 Ariz. 339, 342 (1985)(citing numerous Arizona cases).

A trial court’s erroneous instructions on a defendant’s affirmative defense constitutes plain or fundamental error. State v. Preyer, 502 A.2d 858, 861-63 (1985); Omaha Mining Co, Inc. v. First National Bank of Bellevue , 415 N.W.2d 111, 115 (1987). Both cases were cited with approval by the Arizona Supreme Court in State v. King, 158 Ariz. 419, n.5 (1988)(fundamental error in insanity instruction).

The State may have been “indifferent” about the “motive” instruction, but neither the Defense nor the court was indifferent. [Ans. Br. 109]. The trial court noted that the “jury always asks” about motive in every case. [R.T. 6/6/06, 124]. The issue of “motive” was a genuine showdown in the case because the State implied that Fish was salivating at the chance to use his training to shoot someone. As a result, it was important to focus the jury’s attention on the fact that Fish had no genuine motive to shoot Kuenzli.

Motive is an issue in many criminal cases, particularly homicide. The Arizona Supreme Court has noted that “standard instructions about the burden of proof provide a poor substitute for a properly supported alibi instruction.” State v. Rodriguez, 192 Ariz. 58, 63 (1998). Likewise, the Arizona Supreme Court has expressly found that the failure to reinstruct the jury on the meaning of proof beyond a reasonable doubt at the close of the evidence, even if the jury has been properly instructed on the concept at the beginning of the case, constitutes fundamental error. Other jury instructions, including a reasonable doubt instruction at the beginning of the case, are insufficient to cure the problem. State v. Johnson, 173 Ariz. 274, 276-77 (1992). Similarly, this Court found in State v. Noriega, 187 Ariz. 282, 286-87 (App. 1996), review dismissed as improvidently granted, that the failure to give a “mere presence” instruction was not cured by consideration of all other instructions in context - - even though other jury instructions would logically require the state to prove the defendant’s complicity in a crime, rather than mere presence. In other words, the curative effect of other instructions is quite limited. Arguments of counsel cannot cure significant flaws in jury instructions because the jury is instructed that the arguments, statements and comments of counsel are not evidence and are to be disregarded if they are not supported by the evidence. State v. Johnson, 169 Ariz. 567, 572 (App. 1991)(Jacobsen J., dissenting), reversed on other grounds urged by Judge Jacobsen, 173 Ariz. 274 (1992). The normal rule is that an erroneous jury instruction presumably results in prejudice. State v. Arceo, 928 P.2d 843, 853 ( Hawaii 1996). See the discussion of legal authorities in part a.

c. Dangerous Instrument/Responsibility for Dogs Instruction Should Have Been Given

Fish has made a strong argument that he was entitled to a jury instruction regarding the attacking dogs constituting “dangerous instruments”. In response, the State does not quarrel with the proposition that whether or not an object is a deadly or dangerous weapon or instrument is a jury question. State v. Caldera, 141 Ariz. 634, 637-38 (1984). Nor does the State rebut Arizona law to the effect that a dog may be a dangerous instrument based upon the dog’s history. Schleier v. Alter, 159 Ariz. 397, 398, 400 (App. 1989). The State does not cite, discuss or refute the fact that dogs have repeatedly been found to constitute dangerous instruments or deadly weapons in numerous cases across the country. [Op. Br. 60; Ans. Br. 111]. The fact that Fish’s attorney argued that the dogs were “dangerous” in closing argument does not negate the fact that his theory of defense should have been supported by a valid, jury instruction.

The State does not argue the merits of the court’s refusal to instruct the jury on Kuenzli’s legal responsibility for the conduct of his dogs even though the instruction was affirmatively requested by Fish at trial. [R.T. 6/6/06, 154, Appx. 11]. To be sure, the instruction was offered as part of Fish’s theory of defense at trial. [6^th and 14^th Amend. to U.S. Con. and Art. 2, §§4 and 24, Ariz. Con.].

Fish asserts that the reasonable doubt instruction approved in State v. Portillo, 182 Ariz. 592 (1995), constitutes fundamental or structural error because it lowers the burden of proof required by the State in criminal cases. [Op. Br. 61]. It denies Fish due process of law.

During argument over jury instructions, Fish’s attorney, argued that “no factual basis” existed for a finding of “recklessness” on the part of Fish because he intentionally and purposefully shot Kuenzli (in self-defense). [R.T. 6/6/06, 24-26; 6/12/06, 12-13, 22-23]. As a result, Fish argued that the jury should not be instructed on manslaughter nor second-degree murder, predicated upon recklessness (rather than knowing or intentional), because Fish unequivocally acted intentionally and purposefully. [R.T. 6/6/06, 24-79]. Based on a long discussion, it was quite clear that Fish objected to instructions on both reckless second-degree murder and manslaughter.[10] The trial court issued a lengthy, reasoned “ruling” finding that “recklessness” did not apply:

In the present case, the Defendant was trained to shoot the gun he used. He was familiar with its power. He made the conscious decision to un-holster the weapon, deactivate the safety, cock the weapon, point it directly at the chest of the victim, and then discharge three rounds. All in a matter of seconds. He did not consciously disregard a substantial risk that his conduct would cause the victim’s death, without actually knowing that death or serious physical injury would occur. He acted precisely to stop the threat by shooting the victim in the chest, knowing the possible outcome of doing so. When viewed in light of the preceding cases, the Defendant’s actions here were deliberate and calculated, not reckless. Therefore the Court concludes that the evidence does not support the giving of the State’s proposed reckless manslaughter instruction.

[I.R. 240, 4; Appx. 12, M.E. 340, p. 4]. The unequivocal conclusion of the trial court followed a careful, analysis of relevant case law. The court and Fish agreed that “recklessness” was simply not a realistic, factual nor legal issue in this case - - or so we thought.

Despite the absence of any evidence of reckless conduct, the court nevertheless gave a second-degree murder instruction that expressly included “reckless” homicide. [I.R. 347; R.T. 6/12/06, 23-24]. If Fish did not act “recklessly” in shooting Kuenzli, he did not act “recklessly” under circumstances manifesting extreme indifference to human life. [R.T. 6/12/06, 44]. It was error to instruct on reckless second-degree murder under the facts of this case.

“Reckless”, second degree murder is also inconsistent with self-defense. In other words, the jury instructions given by the court, over objection by Fish, were illogical. The defense of self-defense is NOT applicable to reckless homicide. State v. Moore , 729 A.2d 1021, 1030-31 (N.J. 1999); Duran v. State, 990 P.2d 1005, 1008-09 ( Wyo. 1999).

After the jury verdict, Fish filed a Motion for New Trial arguing that the lesser-included instruction for “reckless” manslaughter should have been given if and once the “reckless” second-degree murder instruction was provided to the jury. [I.R. 352, 13-14]. Once the trial court approved “reckless” second-degree murder, then reckless manslaughter became a “necessarily included lesser offense” under Rule 23.2, Ariz. R. Crim. Pro. and due process of law. The Defense never waivered from the position that neither “reckless” instruction should have been given. [R.T. 6/6/06, 24-79]. If the greater was given, however, the lesser should have been given. They should have stood or fallen together. Fish did not contend otherwise. It was unfair (due process) to give one and not the other.

The State does not dispute that “manslaughter” was necessarily a lesser-included offense. Its arguments of “waiver” and “invited error” are misplaced. [Ans. Br. 104, 113]. Fish did indeed oppose the manslaughter instruction, but only because “recklessness” did not apply in the case. Fish’s opposition to any “reckless” instruction, expressly including second-degree murder. [R.T. 6/6/06, 25-26, 33-34, 37-38]. A “directed verdict” should have been issued on recklessness. [R.T. 6/12/06, 12-13, 22-24].

The failure to give the lesser included instruction of reckless manslaughter, once reckless second degree murder was approved, violated due process of law, rendered the trial unfair, and constituted not only an abuse of discretion, but fundamental and structural error. Similar errors have violated due process of law (14^th Amend. and Art. 2, §4 and 24 of Ariz. Con.), denied the accused citizen of a complete defense, and led to cognizable claims in federal habeas corpus proceedings. Bradley v. Duncan, 315 F.3d 1091 (9^th Cir. 2002), cert. denied, 540 U.S. 963 (2003)(refusal to instruct on entrapment denied “full defense” in violation of due process); Horgan v. Gibson, 197 F.3d 1297 (10^th Cir. 1999), cert. denied, 531 U.S. 940 (2000)(trial court’s failure to give lesser-included instruction violated Beck v. Alabama, 447 U.S. 625 (1980)); Hennessey v. Goldsmith, 929 F.2d 511, 516-17 (9^th Cir. 1991)(failure to instruct on element of crime violates due process, but harmless in Hennessey); Allen v. Morris, 845 F.2d 610, 617 (6^th Cir. 1988), cert. denied, 488 U.S. 1011 (1989)(failure to instruct on lesser included offenses when evidence warrants raises habeas claim); Vujosovic v. Rofferty, 844 F.2d 1023, 1027 (3^rd Cir. 1988)(failure to instruct on lesser included offense supported by evidence violates due process). See also the legal authority above in Section a.

Fish asserts that the trial court’s refusal to instruct the jury on crimes likely committed by Kuenzli, including aggravated assault, endangerment, and threatening and intimidating, leads to the inescapable conclusion that a fundamental aspect of Fish’s theory of defense was not supported by jury instructions. U.S. Const. Amend. VI, XIV.; Ariz. Const. Art. II, §§ 4, 24.

It was a violation of due process not to consider “cumulative error”. The repeated effect of significant error at trial, although deemed harmless in one circumstance or another, may very well add up to an unfair trial if each error is not isolated by considering it separately. To be sure, cumulative error is an extension of the harmless error doctrine. [Op. Br. 64-65]. Darks v. Mullin, 327 F.3d 1001, 1018 (10^th Cir.), cert. denied, 540 U.S. 968 (2003)(“Cumulative error analysis is an extension of harmless error… [T]he cumulative effect of two or more individual harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.”).

The general standard for harmless error - - mandated for constitutional issues - - is whether the government can prove that the error is harmless beyond a reasonable doubt. Chapman v. California , 386

U.S.

18 (1967). The accumulation of errors that individually do not, but collectively may, make a trial unfair or unreliable violates due process of law. U.S. Const. amend XIV; Ariz. Const. art. II, §§ 4, 24. We submit that it is unconstitutional (due process of law) for Arizona Courts to find that cumulative error is not cognizable as a legal issue. Cumulative error is recognized as a “separate and independent basis for granting” habeas corpus relief in federal court. Alcala v. Woodford, 334 F.3d 862, 882-83 (9^th Cir. 2003); Cargle v. Mullin, 317 F.3d 1196, 1206-07, 1208, 1221, 1223 (9^th Cir. 2003)(cumulative error analysis aggregates all error found to be harmless and reviews whether their cumulative effect may not be harmless). See also, Kyles v. Whitley, 514 U.S. 419, 421-22, 440-41 (1995)(court is required to assess “cumulative” or “net” effect of all suppressed exculpatory evidence to determine if due process was violated; legal error occurs from piecemeal analysis alone).

Fish was convicted of second-degree murder and sentenced to 10 years in prison because of an unfair trial. His conviction must be reversed and the case remanded to the trial court for a new trial.

Pursuant to Rule 31.13 Arizona Rules of Criminal Procedure, undersigned counsel certifies that this Reply Brief is double spaced, uses 14-point Times New Roman proportionately spaced typeface and contains 18,145 words.

The Reply Brief exceeds the 7,000 word limitation of Rule 31.13(b)(2) and Appellant has therefore file a separate motion for permission to exceed the limitation.

The original and six copies of this Reply Brief were filed by mail. The Briefs were addressed to the Clerk of Court of Appeals for the State of Arizona and delivered to a third party commercial carrier for delivery within three calendar days on February 26, 2008. See Rule 31.13(a).

I hereby certify that on this 26^th day of February, 2008, I mailed copies of the attached to the following people:

[1] The State recognized that it would be difficult to convict an otherwise model citizen for murder based simply on the argument that he miscalculated the need for deadly force in one fleeting, charged instant. As a result, the State successfully broadened the case to include gun ownership, collection and use. The State then successfully limited probative character and prior act evidence regarding Kuenzli, keeping his long and violent history a secret from the jury.

[2] The State formulates its version of statements about the shooting by carefully selecting segments from the testimony of paramedics Roggenstein, Groves , and Officer Selby; rather than reiterate one complete, cohesive description provided by Fish [Ans. Br., 9 – 10] to any particular person. The “composite” statement is never in context and, at times, can be misleading.

[3] Mr. Fish was asked to give Sgt. Ramos only a “brief rundown of what had occurred.” [R.T. 5/9/06, 49].

[4] During cross-examination, Selby thought that Fish reported that Kuenzli said “don’t shoot, don’t shoot.” [R.T. 4/25/06, 198]. Fish spoke to Selby in front of the two paramedics and neither Rogenstein nor Groves heard such statements. [ Id. , 73-77; 137-38]. Fish never credited Kuenzli with such a remark when giving statements to Ramos [R.T. 5/9/06, 55-72] nor Feagan [Ex. 305, 311] nor the grand jury. [Ex. 309]. It was not in Selby’s report and Selby conceded on redirect examination by the State that he didn’t “necessarily recall that…I can’t say for sure.” [R.T. 4/25/06, 208].

[5] Animal control officer Spaulding testified that during April of 2004 he would reach through the fence at the Humane Society and scratch Hank’s ear and Hank would lick Mr. Spaulding’s hand. [R.T. 5/10/06 , 72]. Kimberly Garza testified that while she working at the Humane Society in the spring of 2004, Sheba would crawl into her lap, sit with her and put her head under her armpit. [R.T. 5/5/06 , 170]. She also testified about playing with both Sheba and Hank. [ Id. at 172]. Patti Blackmore, a veterinarian who neutered Hank in April of 2004, testified about the specific physical contact she had with Hank during that procedure and how Hank responded positively during the exam. [R.T. 5/10/06 , 44-46].

[6] Artwohl and Christensen, Deadly Force Encounters, 39 (1997).

[7] We withdraw our reliance on U.S. v. Curtain, 443 F.3d 1084 (9^th Cir. 2006) which was vacated upon en banc review, 489 F.3d 935 (2007).

[8] Although the State attempts to splinter Fish’s objection to testimony that Kuenzli’s injuries to his hand and arm were “consistent” with “defensive wounds”, the fact of the matter is that Fish objected to any testimony that injuries to Mr. Kuenzli’s arm or hand were “consistent” with “defensive injures” even though the conclusion was merely one of numerous possibilities and entirely speculative. It was, at best, a mere possibility. Fish has not waived any objection in light of the pretrial motion in limine and the trial court’s definitive decision to allow Dr. Horn to provide speculative testimony before the petit jury. Obviously, the hand and forearm travel together.

[9] Paxson considered two competing theories. One of the two occurred. In Fish, numerous “possibilities” existed, not just three possibilities as now posited by the State. Even so, what if there was 3, 4, 5, or 6 possibilities. What number of possibilities does it take before only one of them is speculative - - unless more likely than not? The issue is particularly sensitive when the possibilities are wielded by a medical doctor as “consistent with” one of the possibilities because physicians hold honored positions in our society.

[10] Fish also objected to manslaughter based upon sudden heat of passion or quarrel, which was upheld by the trial court. [I.R. 240, 4; Appx. 12, M.E. 340, pp. 4].