Harold Fish Defense
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| 7. Appeal: Shortened Final Reply | |
| 6. Appeal: Fish's Reply Too Long. | |
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4. Appeal: The State's Answering Brief (coming) |
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* Conversation with County Attorney Office and Sheriff Department |
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5. Napolitano
Vetoes Self Defense Bill
AGAIN! |
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4. Bill: SB1166 |
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2. Bill:
SB1302 |
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* SB 1145 self-defense; home protection (restores "innocent until proven guilty") |
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1997
- 43rd Legislature
HB2408 - The "innocent until proven guilty" 1997 law.
Look for 13-103, 13-205.
Did anyone read ARS 13-115. Presumption of innocence and benefit of doubt; degrees of guilt? Was this in conflict prior to SB1145 (2007)? YES!
NRA
Article on
AZ Castle Doctrine
Payson
Roundup
Dateline's "Trail of Evidence"
"Trail of Evidence" transcript
...about the Webmaster
Fish's reply to the State's response on
the Appeal
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I. STATEMENT
OF FACTS 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. A. Fish
was Painted as a Gun Nut 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. [ 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. [ 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. [ 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. [ 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. [ Ms.
Gross heard 3 shots fired without any pause. [ Mr.
Flores thought the distance from the group’s campsite to the Kuenzli
shooting was “130 yards”. [ 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 [ C. The
Dogs The
State briefly summarizes the removal of the dogs, 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. [
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]. D. Fish
Statements 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”. [ 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”. [
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 [
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.” [
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. [
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. II. ARGUMENT A.
Mr. Fish is Entitled to a New Trial
1.
Specific Acts of Kuenzli’s Prior Conduct Should Have Been
Admitted
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
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
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 (
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.
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
c.
The Specific Act Evidence was More Probative Than Prejudicial
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
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.
d.
Fish was Denied his Right to Present his Complete
Defense
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
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
2.
The Jury was Misled to Believe Kuenzli was “Unarmed”
The Court granted the State’s motion, finding that Fish did not
know that Kuenzli had the screwdriver in his back pocket at the time of
the shooting, and that, therefore, the existence of the screwdriver was
not relevant to Fish’s mental state or the defense of self defense.
[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
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 (9th Cir. 2000) where the court concluded
“there is no doubt that a screwdriver can be used to stab someone in the
throat or chest or to gouge out someone’s eye causing serious bodily
injury. It was therefore
properly characterized by the district court as a dangerous weapon.”
Finally, the State cites no authority for its position that (1) the
screwdriver was, as a matter of law, not a
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
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.
3.
Mental Health Records Should Have Been Fully Disclosed
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
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.
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.
Due process of law is the primary and indispensable foundation of
individual freedom in our legal system.
In Re Gault, 387
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
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
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).
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
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.
4.
Subsequent Acts of the Dogs Should Not Have Been Admitted
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
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.” 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.
[ 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.
5.
“Fight or Flight” Syndrome Testimony Should Have Been
Admitted 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. [ 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… DuCharme,
supra, at 2558.
The self-defense standard in 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 ( 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”. [ 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 ( 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 ( 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 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. 5th 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”.
[ 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.” [ 6. Improper
Exclusion and Inclusion of Grand Jury Testimony
a.
Past Gun Ownership and Use by Fish Was Prejudicial And Not
Probative 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. [ Fish
was grilled about whether the Kimber 10mm was one of the “most
powerful” guns that he owned. [ 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”. [ 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…
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