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.
was Painted as a Gun Nut
State’s practice of casting Fish as a gun nut continues on appeal.
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.
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. [
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.
Time of Shooting Most Likely Occurred at 6:30 p.m. According to
Fish and the Campers
State contends that Ashley Gross “unequivocally” recalled that shots
were fired at “5:30 p.m. – not 6:30”. [Ans. Br. 4, n. 1]. In fact,
she admitted that she did not carry a watch. [R.T. 4/21/06, 21]. She is
not even sure that she had a cell phone with her, and didn’t recall
using it or looking at it. [
21-22]. Nor did she recall
looking at a clock in the vehicle. [Id, 61-70]. During trial, Ms.
Gross conceded that she could not recall when she heard the shots. [Id,
28-36]. 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. [
129]. Each trip to Strawberry consumed about 45-minutes to one hour. [
22-23 (Gross), 146 (Baretta), 198 (
)]. The position of the sun,
however, establishes that the shots actually occurred at approximately
6:30 p.m. rather than 5:30 p.m.
Gross signed an affidavit prior to trial, stating that the campers arrived
at their campsite at 4:00 p.m. [Ex. 200]. At trial, she confirmed that the
affidavit was “correct”. [R.T. 4/21/06, 21, 41]. Ms. Goodwin confirmed
that the group of friends arrived at the campsite between 4:00 – 4:30
p.m. and heard shots some time before 6:30 p.m. [
78-79]. Ashley Gross also recalled that the sun was “starting to set”
on the way back from Strawberry during the first trip to get propane. [
24, ln. 1]. The sunset occurred at 7:18 p.m. [Ans. Br. 4, n. 2].
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. [
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.
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.
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
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. [
205]. It was dark by the time Ashley Gross and Dannie Goodwin left
for town. [
209-10]. Gary Flores told the police the next day that he heard shots
between 5:00 – 7:00 p.m. [Id. 221].
Gross heard 3 shots fired without any pause. [
20, 32]. Ms. Goodwin heard 4 shots without any pause. [
77]. Mr. Baretta recalled 4 shots. The first shot was followed by a
significant pause and then 3 shots were fired in rapid succession. [
151]. The pause could have been as long as 45 seconds, [Id. 170] or
as brief as 2-3 seconds. [
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
199]. Mr. Flores recalled that he heard emergency vehicle sirens about the
same time as the girls left to get propane in Strawberry. [
Flores thought the distance from the group’s campsite to the Kuenzli
shooting was “130 yards”. [
219]. Braden Baretta estimated the same distance as 1/8 to ¼ mile; Ms.
Goodwin estimated ¼ to ½ mile. [
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.
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 [
], 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.
State briefly summarizes the removal of the dogs,
and Maggie, from Kuenzli’s car. [Ans. Br. 17]. The State leaves out the
fact that both Deputy Deloria and Sgt. Ramos viewed the dogs before Animal
Control Officer Jack Roberts arrived and concluded that
was then aggressive and dangerous. She bared her teeth, the hair was
raised on her back, and she would have bit them. [R.T. 5/5/06, 53-54 (Deloria)
and 5/9/06, 88-90 (Ramos)]. Deputy Shouse, former animal control officer,
explained that “fear biters” (such as
) may appear meek and mild, but go into attack mode when they sense that
something is wrong. The last thing you want to do is turn around and run
from a “fear biter”. [R.T. 5/11/06, 134-35].
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. [
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].
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”. [
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. [
150, 153]. Nevertheless, the trial court precluded the Defense from
placing the civil suit comment in context. [
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].
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
State has managed to similarly skew other portions of Fish’s tape –
recorded statement. [Ex. 305]. Fish did describe the crazy look in
Kuenzli’s eyes as he was running toward Fish [Ex. 305, 32] like a
“freight train”. Although he did say that “his life has just gone in
the crapper” [Ans. Br. 21] the State leaves out that he also added that
“[Kuenzli’s life] is in the crapper” as well. Contrary to the
State’s assertions, Fish was remorseful and did what he could to “help
save [Kuenzli’s] life”. [Ex. 305, 51-52].
Selby, U.S. Forest Service, did NOT paint a picture of Fish as calm and
calculated, giving a rehearsed statement. [Ans. Br. 9 – 10]. Selby
testified that Fish was “very cooperative” and quite “sincere”. [R.T.
4/25/06, 191-94]. Selby described Fish as “calm to a point”,
“shaking a little bit”, “his voice was cracking, skipping a little
bit”, and he “kept talking over and over about what took place”. [Id,
191]. Selby concluded that Fish “was trying to keep it together by
195]. Fish was talking in an effort to vent or release emotion. [
Fish was not evasive and did not try to hide anything. [
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)].
We know that the vehicle Fish was able to “flag down” was operated by
Chet Dieringer [
8-9], who confirmed the lack of cell phone service in the area. Mr.
Dieringer therefore initiated an “On-Star” call at 6:47 p.m.,
12-14; Ex. 104-05 (tape and transcript)].
Sgt. Ramos described Fish, sitting handcuffed on the tailgate of
Officer Selby’s pickup truck, quite differently than the State presents
his testimony [Ans. Br. 10]. The “very best word” to describe Fish,
according to Sgt. Ramos, was “isolated”. 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.” [
]. “There seemed to be a level of remorsefulness about him…” [
According to the statement by Fish given to Sgt. Ramos, documented
by notes and a written report, Kuenzli did not yell “Don’t shoot” to
Instead, Kuenzli yelled that he would kill Fish for shooting his dogs.
Fish, in response told Kuenzli that he did not shoot his dogs and ordered
Kuenzli to stop. Kuenzli refused. [
69]. Fish yelled stop or he would be forced to shoot. [
, 70-71]. Fish was in “fear for his life because the person running at
him was saying, I’m going to kill you, you son of a bitch”. [
The State’s description of Fish’s contact with Det. Feagan is
similarly misleading. [Ans. Br. 13]. Fish, according to Feagan, was
“somewhat depressed, that’s my terminology, frustrated, just he was
really down on himself.” [R.T. 5/11/06, 188]. Feagan described Fish as
“down, deep breathing, he was having a hard time with what happened to
In the end, Fish repeatedly stated that he shot Kuenzli, because he
believed Kuenzli 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
Mr. Fish is Entitled to a New Trial
Specific Acts of Kuenzli’s Prior Conduct Should Have Been
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.
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
, 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.
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
469, 475-76 (1948) (discussing Fed. R. Evid. 404).
The rationale behind the exceptions to the propensity rule is that
fundamental fairness requires that the fact finder be provided with the
most complete and informed picture of the incident in question while still
protecting the rights of the accused.
Fed. R. Evid. 404 Advisory Committee’s Note.
The Rule 405(b) Limitation on Specific Act Character
Evidence is Arbitrary and Violates Fish’s Right to
Due Process and to Present a Complete Defense
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 (
2005); State v. Griffen,
43, 46 (1965); People v.
Lynch, 470 N.E.2d 1018, 1020 (
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
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.
The diluted and limited
reputation and opinion character evidence which was allowed could never be
an adequate substitute.
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
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
470 (1986) (prior acts admissible to corroborate witness testimony); State
v. Castaneda, 150
382 (1986) (prior acts admissible to rebut claim of opposing party).
The Specific Act Evidence was More Probative Than Prejudicial
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
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.
Fish was Denied his Right to Present his Complete
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].
evidentiary rule which precludes specific act evidence is arbitrary and
excludes important defense evidence without serving any legitimate
interest where the victim’s acts rather than those of the accused are at
issue. As a result, due process is implicated. See Holmes v. S.
319, 325, 328 (2006). Roper,
at 236; State v. Riggs, 189
327, 330 (1997).
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
The error in precluding the specific act evidence was not harmless
because Rules 404 and 405, and the
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
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
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,
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
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.
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
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.
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
284 (1973). Fish also has a
concomitant right to effective cross examination of the state’s
witnesses at trial.
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
232, 236, (App.1992); State v. Herrera –Rodriguez, 164
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
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
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.
at 236; P.M. v. Gould, 212
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
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
at 239; Gould, 212
The facts of this case are similar to those in Roper in many
significant ways. In both
cases, the defendants alleged that they acted reasonably when using force
and only did so in self-defense; in both cases, the alleged victims were
mental patients who the defendants alleged were manifesting their violent
personalities when they attacked the defendants; and in both cases there
was a long and well documented history of violence and psychotic behavior
by the alleged victims 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.
. 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.
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.
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
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 defendant finally admitted to the stabbing but claimed he acted in
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
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.
Subsequent Acts of the Dogs Should Not Have Been Admitted
allowed opinion and reputation evidence up to 90 days after the incident
occurred. [I.R. 200; Appx.
12]. The State fails to cite
authority for its position that there is a “logical relationship between
the dogs’ character at the time of the shooting and up to 90 days after
the shooting” [Ans. Br. 63] and it fails to address the cases that hold
character evidence subsequent to the date of the incident is only
admissible when there is a logical relationship between the later act and
an earlier state of mind. See
v. Watson, 894 F.2d 1345 (D.C. Cir. 1990) and cases in Op. Br. 43.
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.”
at 345. Therefore, the court
held the evidence was not relevant.
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.
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.
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.
“Fight or Flight” Syndrome Testimony Should Have Been
Pitt possessed specialized knowledge beyond the experience or education of
jurors about the unique physical and psychological effects 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
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.
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. [
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:
…show that individuals in dangerous situations are likely to
experience dramatic perceptual distortions that will directly affect their
ability to see, hear, and comprehend environmental stimuli….perceptual
distortions can offer a compelling explanation of seemingly irrational or
supra, at 2558.
The self-defense standard in
(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.
As a result, the physiological state of Fish at the time of the incident
was particularly relevant.
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
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”. [
] 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.
In this case, Fish’s contact with Kuenzli and the two dogs drastically
differs from the typical drunken parking lot confrontation discussed in Braley.
State’s Answering Brief relies almost exclusively on Braley and
the Arizona case of State v. Salazar, 182 Ariz. 604, 610 (App.
1995). 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 (
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 (
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.
admissibility of expert opinion is the responsibility of the appellate
court when it presents an issue of law or logic. State v. Moran,
378, 381, (1986), citing State v. Chapple, 135
281, 297, n. 18 (1983). Also see State v. Lujan, 192 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).
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).
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”.
]. 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.
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.
State argued that Kuenzli was coming fast down a rocky slope and that Fish
“could have stepped to the side”. “Has he proved to you that it is
more likely than not that he couldn’t shuffle up the side of the hill,
turned around on Kuenzli and pointed the gun at him, maybe firing a
warning shot? Has he proved to you that it is more likely than not that he
could have shot him to injure?” [R.T. 6/2/06, 12:10 p.m., 31]. The State
argued that Fish hadn’t met his “burden of proof” by showing that
“the extent to which he used deadly force is the extent to which a
reasonable person would have used it under the circumstances.” [
, 33]. Based upon Fish’s experience with firearms, the State argued that
Fish should have shot to injure, not to kill Kuenzli. The 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. (14th Amendment to U.S. Con. and Art. 2, §§4 and 24,
Exclusion and Inclusion of Grand Jury Testimony
Past Gun Ownership and Use by Fish Was Prejudicial And Not
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.
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. [
, 182]. Fish was explicitly asked about all handguns he owned, all rifles
that he owned, and all automatic pistols that he owned. [
191]. Fish estimated that he
owned a dozen handguns. [
192]. He estimated that he owned a dozen or two handguns and rifles. [
was grilled about whether the Kimber 10mm was one of the “most
powerful” guns that he owned. [
193-94]. He was questioned extensively about the hollow point bullets that
he used. [
194-95]. Fish was asked about the impact of a hollow point bullet upon a
subject, which admittedly causes the bullet to expand. [
197-98, 257-59]. He was asked about the written training materials that he
received when he took a concealed weapons course. [
199-200]. Fish was questioned extensively about the safety mechanism on
the 10mm handgun. [
201-202]. He was questioned about whether or not the gun was loaded in the
automobile during his drive to northern
. [Id]. None of this
evidence was relevant to the self-defense issue.
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”. [
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
160]. Again, other than to bolster the State’s gun nut theory, the
evidence was irrelevant.
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.
that appellant had a gun and that he shot Brewer are uncontroverted. His
reason for carrying a gun does not pertain to the existence of any fact
that is of consequence to determination of the action…Fed. R. Evi. 401.
The mere possession of a gun simply does not go to the issue of whether
its use is justified in self-defense…
640 F.2d 150, 153 (8th Cir. 1981).
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,
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,
2nd Vol, 121-22]. Mr. Haag described the handgun possessing a
five inch barrel. [
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. [
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. [
Although the screwdriver concealed inside of Kuenzli’s back
pocket was excluded from the jury as relevant, the State was allowed to
present testimony that a “military-appearing pouch” was found inside
of Fish’s backpack that contained magazines for his pistol, including 9
cartridges in the first magazine and 8 cartridges in the second. [R.T.
4/26/06, 2nd Vol., 92-94 (Thomas Ross, Crime Scene
Investigator)]. After extensive argument [R.T. 5/4/06, 21-23, 39] the
Investigator, Mark Christian, was allowed to provide an inventory of the
contents of Fish’s van, which was found more than one mile from the
scene of the shooting. Photographs, consisting of Exhibits 25-31, were
admitted as evidence at trial. [
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. [
40-49]. The admission of this evidence was not only irrelevant, but highly
prejudicial. Rule 401, 402, 403,
Jury Questioning About Warning Shots, Injury to Kuenzli,
and Brandishing a Weapon were Irrelevant and Prejudicial
State, without citing any legal authority, argues that the testimony
challenged by Fish was cumulative and consistent with his own defense.
Lost in the process, however, is the puzzling allowance by the trial court
of Fish’s explanation that “brandishing a weapon” is unlawful. 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].
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.
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.
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.
Background Should Not Have Been Excluded
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.
Transcript of the Grand Jury Testimony Should Not Have Been
Admitted and Presented to the Jury
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 (9th
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.
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.
Taghipour, the State cites U.S. v. Williford, 764 F.2d 1493,
1503 (11th Cir. 1985), which in turn relies upon U.S. v.
Costa, 691 F.2d 1358, 1362 (11th 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.
was Redacted Improperly and Prejudicially
State concedes that it redacted the grand jury transcript incorrectly.
However, the State mistakenly concludes that Fish otherwise testified
regarding the lack of time to fire a “warning shot” at Kuenzli. [Ans.
Br. 81-82]. In fact, however, the omitted testimony from Fish related not
to firing a warning shot, but specifically referred to wounding Kuenzli,
rather than killing him. The grand juror, 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. [
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
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].
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
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
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
153, 155 (
1991). This is especially the
case when the trial court’s error involves the loss of federal
constitutional rights. [
About Hand-to-Hand Combat and the Physical Description of the Scene of the Shooting Should Have Been
a. Forensic Investigator
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.
testified that he spent approximately one hour documenting Kuenzli’s
path of travel and that he took photos of the “travel path and things of
that nature” of Kuenzli. [R.T. 5/19/06, 163]. Thompson saw depressions
in the ground, disturbances in the soil, broken twigs and pine needles,
and ground cover, etc. [Id. 168]. Thompson photographed the soil
disturbances in order to document the path taken by Kuenzli. [
169]. It is ironic that a skilled investigator was not able to testify
that he observed Kuenzli’s “tracks” along the trail because it was
“speculation”, but Dr. Horn was allowed to testify that bullet wounds
to the hand and forearm of Kuenzli were “consistent with defensive
wounds” when that was only one of several possible explanations.
law allows lay opinions
on numerous similar subjects.
v. Miller, 186
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
b. Corporal Feagan
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]
Dr. Horn’s Speculative Testimony was Inadmissible, but Acted
as Crucial “Forensic Science” for the State’s Closing
State relied so much upon the testimony of Dr. Horn, especially regarding
“defensive wounds” during its closing argument 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.”
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.
of the opinions offered by Dr. Horn were supportive of the State’s
theory, but all were also speculative at best. On cross-examination, Dr.
Horn conceded that Kuenzli could have had a clenched or closed fist
wrapped around his thumb at the time of shooting, rather than an open
hand. [R.T. 5/2/06, 37]. The tips of the fingers may have been out of the
way of the track of the bullet. [
40]. Dr. Horn, 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”.
on redirect examination, Dr. Horn testified that the injuries to
Kuenzli’s hands were ultimately “consistent” with defensive wounds.
80-81]. Dr. Horn speculated that it is unusual for someone to carry their
hands in front of their torso while running. In other words, Dr. Horn
could only testify that Kuenzli’s hands were in front of the torso at
the time of the shooting, but could not give an expert opinion about why,
including whether the wounds were defensive rather than offensive. [
43]. Yet, the hands could have been in front of the torso without being
“offensive” or “defensive”, running or pointing or gesturing or
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”. [
74]. The wounds suffered by Kuenzli were “consistent with defensive
postures of other victims” in other homicide cases. [R.T. 6/12/06,
73-74, 75]. The State forcefully argued, based on the opinion of Dr. Horn,
that Kuenzli “was attempting to defend himself against not one, but two
75]. The State described the defensive wounds as a matter of “forensic
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. [
trial court relied upon State v. Paxson, 203 Ariz. 38 (App. 2002),
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
, 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”.
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.
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].
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.
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.
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.”
future medical expenses are reasonably probable or certain is determined
“from all the relevant circumstances which are before the court”. The
use or refusal of an expert to use a “magic word” or phrase such as
“probability” is not determinative. The trial court is allowed to
determine probability or lack thereof if the evidence, taken as a whole,
is sufficient to warrant such a conclusion.
at 79 [cite omitted]. As
explained in footnote 1 of the
decision, there was sufficient evidence for the jury to find a
“probability” of the need for future medical care for dental work on
both crowns and bridges. The Court reiterated that the Arizona Rule, even
regarding future medical expenses in light of a documented injury,
must be “reasonably probable”.
at 77. The issue in
related more to “damages” than “causation”. Yet, the standard
employed is higher than the one applied in Fish.
Both Paxson and State v. Ellevan, 179
382, 384 (App. 1994), support the proposition that an expert opinion must
be more likely than not or, at a minimum, equally probable (50-50%). It is
impossible for the State to cite relevant
cases without running across language suggesting the same conclusion.
[Ans. Br. 94]. As noted in Paxson:
It is not necessary that such evidence be sufficient to support a
finding of ultimate fact; it is enough if the evidence, if admitted, would
render the desired inference more probable [than not].
Despite the opinion of Dr. Horn, interpreting one “possible”
inference raised by an injury to someone’s hand or arm by a bullet that
eventually penetrated their chest, there was no other evidence to support
the conclusion that Kuenzli suffered defensive wounds. Dr. Horn’s
interpretation of the wounds as “consistent with defensive wounds” was
nothing more than a speculative judgment about one possibility within an
array of many possible inferences. 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
The state introduced no evidence to the contrary.
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.
at 384. In other words,
medical testimony, when “inconclusive” may be of value when considered
with other evidence.
, citing Butler v. Wong, 117
395, 396 (App. 1977). In Ellevan, the testimony of Dr. Palmer was
substantially fortified by the introduction of a scientific study and the
testimony of the petitioner, which affirmatively showed that he likely
contracted AIDS two years prior to sentencing. The same composite of
evidence simply does not exist to support the critical opinion of Dr. Horn
that Kuenzli suffered “defensive wounds”, predicated only upon the
single fact that his hand and forearm were in front of his torso when he
was shot. Nonetheless, the testimony of Dr. Horn effectively 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.
misleading, powerful, and unfair to allow Dr. Horn to testify that one of
many “possible” explanations was “consistent with defensive
wounds”. “[E]liciting an expert’s opinion that the victim’s
conduct is consistent with the crime having occurred” carries “a
significant risk that such testimony” will unfairly sway the jury. State
v. Moran, 151
378, 386 (1986); State v. Tucker, 165
340, 349 (1990)(child molestation cases). The testimony of Dr. Horn not
only swayed the jury, it was 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
408, 416 (1999) for the proposition that “harmless error” has
occurred. Van Adams, however, contains only a conclusionary
statement about “harmless error”, which related to testimony from a
lay witness that “may well have lacked probative value”, but
“constituted only a small portion of her testimony” and was not
unfairly prejudicial. Id.
Dr. Horn’s unreliable but powerful testimony raised a “reasonable
probability that the verdict might have been different had the error not
been committed…To put it differently, is there any reasonable doubt that
the jury would have found the defendant guilty in the absence of [the
inadmissible evidence]?” State v. Williams, 133
220, 225 (1982) (cited in Van Adams). More than a “reasonable
doubt” exists that the jury would not have convicted Fish absent the
misleading “expert” testimony of Dr. Horn.
New Trial Should Have Been Granted for Jury Misconduct
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.
Jury Instructions Erroneous
Jury Instruction on Self-Defense
instruction on self-defense [I.R. 347, 18; R.T. 6/12/06, 46] expressly
stated that “a person may use deadly force in self-defense only
to protect against another’s use or threatened use of deadly physical
force”, rather than the “apparent” use or threat of deadly force.
The error was critical in Fish’s case because he shot Kuenzli precisely
because of the apparent threat of deadly force.
self-defense instruction submitted by Fish stated that an honest belief in
the necessity of self-defense is “insufficient” [I.R. 328, Inst. 404];
but the trial court stated that it was “immaterial”. The language
employed by the court would encourage the jury to affirmatively disregard
the grand jury testimony and statements made by Fish.
Korzep v. Superior Court, 172
534, 540 (App. 1992), involved A.R.S. §13-411 (crime prevention) rather
than A.R.S. §13-404 (self-defense), the analysis is the same. [Ans. Br.
109]. A.R.S. §13-411 also requires “an objective, third person measure
of reasonableness of a defendant’s preventative force”. Yet, it
includes “both a subjective and objective component”. Korzep,
172 at 540. The same is true of self-defense. Fish’s honest belief may
have been “insufficient”, but was not “immaterial.” The
instruction undercut Fish’s statements and grand jury testimony (unfair
comment on the evidence) and erroneously summarized the law of
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
Samaha, Criminal Law, p. 219 (
, Seventh Ed. 2002).
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 (9th Cir.
2003)(erroneous instruction on general intent and malice in second degree
murder case violated constitutional rights of accused citizen to have jury
correctly decide every element of the offense); Powell v. Galaza,
328 F.3d 558 (9th Cir. 2002)(erroneous jury instruction removed
the element of specific intent from the case); Keating v. Hood, 191
F.3d 1053 (9th Cir. 1999), cert. denied, 531 U.S. 824
(2000)(jury instruction that omitted mens
rea element violated due process of law).
Plain error occurs when the trial court fails to instruct on an
“element” of the offense because the instruction violates substantial
due process rights.
v. Alferahin, 433 F.3d 1148, 1157-58 (9th Cir. 2006); State
v. Ontiveros, 206
539 (App. 2003).
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
281, 297 n.18 (1983). “[A] trial court has a duty to instruct on the law
relating to the facts of the case when the matter is vital to a proper
consideration of the evidence, even if not requested by the defense and
failure to do so constitutes fundamental error.” State v.
330, 337 (1985).
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
339, 342 (1985)(citing numerous
A trial court’s erroneous instructions on a defendant’s
affirmative defense constitutes plain or fundamental error. State v.
Preyer, 502 A.2d 858, 861-63 (1985); Omaha Mining Co, Inc. v. First
National Bank of
, 415 N.W.2d 111, 115 (1987). Both cases were cited with approval by
the Arizona Supreme Court in State v. King, 158 Ariz. 419, n.5
(1988)(fundamental error in insanity instruction).
b. Jury Instruction on Motive
State may have been “indifferent” about the “motive” instruction,
but neither 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.
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
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
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
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 (
1996). See the discussion of legal authorities in part a.
Dangerous Instrument/Responsibility for Dogs Instruction Should
Have Been Given
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
634, 637-38 (1984). Nor does the State rebut
law to the effect that a dog may be a dangerous instrument based upon the
dog’s history. Schleier v. Alter, 159
397, 398, 400 (App. 1989). 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
State does not argue the merits of the court’s refusal to instruct the
jury on Kuenzli’s legal responsibility for the conduct of his dogs even
though the instruction was affirmatively requested by Fish at trial. [R.T.
6/6/06, 154, Appx. 11]. To be sure, the instruction was offered as part of
Fish’s theory of defense at trial. [6th and 14th
Con. and Art. 2, §§4 and 24,
d. Reasonable Doubt/Burden of Proof
asserts that the reasonable doubt instruction approved in State v.
Portillo, 182 Ariz. 592 (1995), constitutes fundamental or structural
error because it lowers the burden of proof required by the State in
criminal cases. [Op. Br. 61]. It denies Fish due process of law.
Lesser Included Offense
argument over jury instructions, Fish’s attorney, argued that “no
factual basis” existed for a finding of “recklessness” on the part
of Fish because he intentionally and purposefully shot Kuenzli (in
self-defense). [R.T. 6/6/06, 24-26; 6/12/06, 12-13, 22-23]. As a result,
Fish argued that the jury should not be instructed on manslaughter nor
second-degree murder, predicated upon recklessness (rather than knowing or
intentional), because Fish unequivocally acted intentionally and
purposefully. [R.T. 6/6/06, 24-79]. Based on a long discussion, it was
quite clear that Fish objected to instructions on both reckless
second-degree murder and manslaughter.
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
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.
second degree murder is also inconsistent with self-defense. In other
words, the jury instructions given by the court, over objection by Fish,
were illogical. The defense of self-defense is NOT applicable to reckless
homicide. State v.
, 729 A.2d 1021, 1030-31 (N.J. 1999); Duran v. State, 990 P.2d
1005, 1008-09 (
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
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].
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 (14th 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 (9th Cir. 2002), cert. denied, 540
U.S. 963 (2003)(refusal to instruct on entrapment denied “full
defense” in violation of due process); Horgan v. Gibson, 197 F.3d
1297 (10th Cir. 1999), cert. denied, 531 U.S. 940 (2000)(trial
court’s failure to give lesser-included instruction violated Beck v.
Alabama, 447 U.S. 625 (1980)); Hennessey v. Goldsmith, 929 F.2d
511, 516-17 (9th Cir. 1991)(failure to instruct on element of
crime violates due process, but harmless in Hennessey); Allen v.
Morris, 845 F.2d 610, 617 (6th Cir. 1988), cert. denied,
488 U.S. 1011 (1989)(failure to instruct on lesser included offenses when
evidence warrants raises habeas claim); Vujosovic v. Rofferty, 844 F.2d 1023, 1027 (3rd
Cir. 1988)(failure to instruct on lesser included offense supported by
evidence violates due process). See also the legal authority above in
Endangerment and Threatening and Intimidating
Fish asserts that the trial court’s refusal to instruct the jury
on crimes likely committed by Kuenzli, including aggravated assault,
endangerment, and threatening and intimidating, leads to the inescapable
conclusion that a fundamental aspect of Fish’s theory of defense was not
supported by jury instructions.
Const. Amend. VI, XIV.;
Const. Art. II, §§ 4, 24.
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 (10th
Cir.), cert. denied, 540 U.S. 968 (2003)(“Cumulative error
analysis is an extension of harmless error… [T]he cumulative effect of
two or more individual harmless errors has the potential to prejudice a
defendant to the same extent as a single reversible error.”).
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.
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 (9th Cir. 2003); Cargle v. Mullin, 317 F.3d
1196, 1206-07, 1208, 1221, 1223 (9th 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.
RESPECTFULLY SUBMITTED this
Law Office of
LEE PHILLIPS, P.C.
JOHN TREBON, P.C.
to Rule 31.13 Arizona Rules of Criminal Procedure, undersigned counsel
certifies that this Reply Brief is double spaced, uses 14-point Times New
Roman proportionately spaced typeface and contains 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.
Dated this______day of February, 2008.
The original and six copies of this Reply Brief were filed by mail.
The Briefs were addressed to the Clerk of Court of Appeals for the
and delivered to a third party commercial carrier for delivery within
three calendar days on February 26, 2008.
See Rule 31.13(a).
Dated this______day of February, 2008.
CERTIFICATE OF SERVICE
I hereby certify that on this 26th
day of February, 2008, I mailed copies of the
attached to the following people:
Joseph T. Maziaz
Assistant Attorney General
Criminal Appeals Section
W. Washington St
Honorable Mark Moran