Harold Fish Defense

Grant Kuenzli ended his life with one aggressive confrontation too many. This time, instead of menacing his girlfriend or other defenseless individuals, Kuenzli attacked a man who could and did 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 Kuenzli and not by Fish.

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 22-year] marriage” to Fish. Harold did not collect semiautomatic or automatic guns. [R.T. 5/23/06, 110]. The Fish couple did attend a “pistol class” at Gun Sight a “prime gun school in the state”; but not a prime “semi-automatic” gun school. [ Id. , 107; Ans. Br. 1].

The State also emphasizes that “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. [Ans. Br. 15-16]. Although the bullets from the van were not connected to the case and did not constitute “other act” evidence (Rule 404(b)) they did hit their intended target at trial, Harold Fish.

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

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

Ms. Gross signed an affidavit prior to trial, stating that the campers arrived at their campsite at 4:00 p.m. [Ex. 200]. At trial, she confirmed that the affidavit was “correct”. [R.T. 4/21/06, 21, 41]. Ms. Goodwin confirmed that the group of friends arrived at the campsite between 4:00 – 4:30 p.m. and heard shots some time before 6:30 p.m. [ Id. 78-79]. Ashley Gross also recalled that the sun was “starting to set” on the way back from Strawberry during the first trip to get propane. [ Id. 24, ln. 1]. The sunset occurred at 7:18 p.m. [Ans. Br. 4, n. 2]. In order for the campers to witness the sunset on the way back to the campsite, the first trip must have begun at 6:30 p.m., rather than 5:30 p.m. Ashley Gross admitted that the “sun was gone” during the second trip to town, but there was a “little bit of light” in the sky. [ Id. 85]. On the way back to the campsite after the first trip, Ms. Goodwin saw a man and a vehicle on the side of the road, which was Mr. Fish and Chet Dieringer. They conducted the On-Star call to authorities from 6:47 p.m. until 7:30 p.m. [Ans. Br. n. 3]. The sighting by Ms. Goodwin confirms that the first trip could not have occurred between 5:30 – 6:30 p.m.

The 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 most reliable conclusions about time that can be gleaned from their testimony is that the shooting occurred at about 6:30 p.m. To be sure, twilight may exist after sunset; but the sun dropped below the horizon at 7:18 p.m., which marked the end of the campers’ first 45-minute trip to Strawberry.

The State briefly summarizes the removal of the dogs,

Sheba

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

Sheba

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

Sheba

) may appear meek and mild, but go into attack mode when they sense that something is wrong. [R.T. 5/11/06, 134-35]. Fish “was afraid” of the dog. [ Id. 74 (Officer Vlieg)].

Fish’s fear of the dogs was explained, at least in part, by the fact that only a few short weeks before the attack by Kuenzli, Fish’s oldest daughter, Ellen, was attacked by a neighbor’s dog. Ellen turned and ran from the neighbor’s dog after it barked at her. The dog chased Ellen and bit her at least three times. 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 recounted that her father told her never to run away from a pursuing dog. [R.T. 5/18/06, 150].

The facts are construed in favor of the State on appeal but they should not be misconstrued. The State claims that Fish called his wife, Debora, on the night of the shooting between 9:00 and 10:00 p.m. and expressed “concern over the possibility of a civil suit”. [Ans. Br. 12-13]. In fact, Mrs. Fish testified that the “civil suit was my concern, to Detective Feagan, not my husband’s concern to me.” [R.T. 5/23/06, 143, ln. 18-19]. Fish actually reported that he was concerned “about all the stuff that was going on”. [ Id. ln. 9-10]. Debora Fish, not Harold Fish, expressed concern about a civil suit only after Detective Feagan told her that he thought Fish may have acted in self-defense [Id. 150 - 153], but the trial court did not allow the jury to hear the explanation.

It is true that Fish 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. ]. Fish was simply wrong about when he would get home.

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

Officer Selby, U.S. Forest Service, did NOT paint a picture of Fish as calm and calculated, giving a rehearsed statement. [Ans. Br. 9 – 10]. Selby testified that Fish was “very cooperative” and quite “sincere”. [R.T. 4/25/06, 191-94]. Selby described Fish as “calm to a point”, “shaking a little bit”, “his voice was cracking, skipping a little bit”, and he “kept talking over and over about what took place”. [Id, 191]. Selby concluded that Fish “was trying to keep it together by talking”. [ Id. 195]. Fish was talking in an effort to vent or release emotion. [ Id. 193].[1] Fish was not evasive and did not try to hide anything. [ Id. 194].

Mr. Fish was asked to give Sgt. Ramos only a “brief rundown of what had occurred.” [R.T. 5/9/06, 49]. While Fish did not repeat to Sgt. Ramos that he tried to call for help immediately after the shooting. [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 [ Id. 8-9], who confirmed the lack of cell phone service in the area. Mr. Dieringer therefore initiated an “On-Star” call at 6:47 p.m. [ Id. 12-14; Ex. 104-05 (tape and transcript)].

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

According to the statement by Fish given to Sgt. Ramos, documented by notes and a written report, Kuenzli did not yell “Don’t shoot” to Fish. [ Id. 67].[2] Instead, Kuenzli yelled that he would kill Fish for shooting his dogs. Fish, in response, told Kuenzli that he did not shoot his dogs and ordered Kuenzli to stop. Kuenzli refused. [ Id. 69]. Fish yelled stop or he would be forced to shoot. [ Id. , 70-71]. Fish was in “fear for his life because the person running at him was saying, I’m going to kill you, you son of a bitch”. [ Id. 71].

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

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

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]. 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. Kuenzli’s pattern of specific, similar violent and aggressive acts over several years confirmed that Fish’s split-second assessment of Kuenzli was correct. [R.T. 12/12/05, 102-135].

The rationale behind the “propensity” rule is not lack of relevance, but rather that the probative value of this evidence might be outweighed by unfair prejudice. See M. Udall & J. Livermore, Arizona Practice: Law of Evidence §83 at 170 (3d ed. 1991); Delozier v. Evans, 158 Ariz. 490 (App. 1988); Michelson v. United States, 335

U.S.

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

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

This arbitrary limitation on character evidence denied Fish his constitutional right to present a complete defense because the specific act evidence of Kuenzli’s propensity for violence had unique and substantial probative value which would have helped the jury identify the first aggressor. Commonwealth v. Adjutant, 824 N. E. 2d 1, 8 ( Mass. 2005); State v. Griffen, 406 P.2d 397, 400 (1965); People v. Lynch, 470 N.E.2d 1018, 1020 ( Ill. 1984). The probative evidence of past acts was necessary after the State opened the door by claiming that Kuenzli was only coming down the trail to rescue his dogs. State v. Tyler, 149 Ariz. 312, 314 (App. 1986). They would also have corroborated Fish’s version of the incident. Adjutant, 824 N.E. 2d at 9. Lynch, 1470 N.E.2d at 1020.

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

Separate from Rule 404(a) and 405 character evidence, used to establish propensity, Kuenzli‘s prior acts of violence and aggression should also have been admissible under Rule 404(b) to establish motive and intent. [Ans. Br. 36]. Rule 404(b) allows specific act evidence to be introduced to prove matters other than propensity, 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, is 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; State v. Cook, 150 Ariz. 470 (1986) (prior acts admissible to corroborate witness testimony); State v. Castaneda, 150 Ariz. 382 (1986) (prior acts admissible to rebut claim of opposing party).

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 v. Superior Court (Roper), 172 Ariz. 232, 236 (App. 1992). The sound discretion of trial judge can be utilized to exclude marginally relevant or grossly prejudicial acts. Limiting instructions can mitigate the potential dangers of prejudice and focus the jury’s attention on the proper scope of specific act evidence.

The Arizona evidentiary rule which precludes specific act evidence is arbitrary and excludes important defense evidence without serving any legitimate interest where the victim’s acts rather than those of the accused are at issue. As a result, due process is implicated. See Holmes v. S. Carolina, 547

U.S.

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

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. [R.T. 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]. Yet, evidence need only have any tendency to make an inference of fact more likely than not. Hawkins v. Allstate, 152 Ariz. 490 733 P.2d 1073 (1987).

The State fails to address the decision in U.S. v. Lavendar, 224 F.3d 939, 941 (9^th Cir. 2000) where the court concluded “there is no doubt that a screwdriver can be used to stab someone in the throat or chest or to gouge out someone’s eye causing serious bodily injury. It was therefore properly characterized by the district court as a dangerous weapon.” Finally, the State cites no authority for its position that (1) the screwdriver was, as a matter of law, not a dangerous weapon or instrument and more importantly that (2) the State could deceive the jury by telling them that Kuenzli was “unarmed” when both parties and the court knew that was not true.

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); State v. Schaffer, 202 Ariz. 592, 595 (App. 2002); State v. Caldera, 141 Ariz. 634, 637 (1984); State v. Bustamante, 122 Ariz. 105, 107 (1979); State v. Moss, 119 Ariz. 4, 9 (1978) (In a case involving a pair of scissors, the Arizona Supreme Court held “… if a weapon’s deadly character depends on the manner and circumstances of its use, it is for the jury to determine if it is a deadly weapon.”).

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 Court’s ruling was at odds with the well established principle that a defendant is “entitled to the benefit of any reasonable opportunity to prepare his defense,” State v. Tyler, 149 Ariz. 312, 314 (App. 1986), particularly self-defense. State v. Zamora , 140 Ariz. 338, 340 (1984).

The State fails to address 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 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.

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. Application of Gault, 387 U.S. 1 (1967); Oshrin v. Coulter, 142 Ariz. 109 (1984). Mr. Fish’s due process rights overcome the statutory physician/patient privilege. Roper, 172 Ariz. at 239; Gould, 212 Ariz. at 545-546.

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

The State relies exclusively on this court’s decision in State v. Connor, 215 Ariz. 553, 557 (2007), where the victim, an intellectually and emotionally challenged young man, was found dead inside his apartment. An autopsy revealed that the victim had been stabbed or cut at least 84 times. Unlike Fish, the defendant in Connor fled after killing the victim. When questioned by the police, unlike Fish, the defendant lied to the police about being at the victim’s apartment or knowing anything about the stabbing. Id.

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. Yet, even 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). Connor at 560.

The records should have been disclosed because they would have contained evidence of Kuenzli’s violent and aggressive character. The records would have disclosed what psychiatric medication Kuenzli should have been taking at the time he attacked Fish.

The court allowed opinion and reputation evidence up to 90 days after the incident occurred. [I.R. 200; Appx. 12]. The State fails to cite authority for its position that there is a “logical relationship between the dogs’ character at the time of the shooting and up to 90 days after the shooting” [Ans. Br. 63] and it fails to address the cases that hold character evidence subsequent to the date of the incident is only admissible when there is a logical relationship between the later act and an earlier state of mind. See U.S. v. Watson, 894 F.2d 1345 (D.C. Cir. 1990) and cases in Op. Br. 43. State v. Tuell, 112 Ariz. 340, 344-45 (1975).

The State elicited substantial testimony about several specific acts. [Ans. Br. 62-64], through Ms. Brogden [R.T. 5/5/06, 121] and Ms. Dupont. [R.T. 5/11/06, 116-118].[3]

Dr. Pitt possessed specialized knowledge beyond the experience or education of jurors about the unique physical and psychological effects severe trauma has on the mind and body. [R.T. 12/12/05, 17-24]. Dr. Pitt 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. [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 stand his ground and defend himself with a gun. [ Id. ].

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

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[4]:

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

The self-defense standard in Arizona (a reasonable person in defendant’s shoes) generally follows the Model Penal Code. Heller, Beyond the Reas. Man?, 26 Am J. Crim. Law 1, 25 and n. 272 (1988). The “reasonableness” of self-defense must be judged from the defendant’s “perception” of the event. Id.

To conclude that “fear and stress are emotions experienced by all of mankind and are not distinctly related to technical or specialized knowledge” is not only erroneous, it fails to appreciate objective, scientific evidence that would have been helpful to a jury. [M.E. 5/11/06; I.R. 299, 3; Appx. 12, citing Braley v. State, 741 P.2d 1061 ( Wyo. 1987)].

In Braley, the defendant went into his house after a confrontation in an urban setting, loaded his rifle, and returned to the scene of the confrontation. He then fired a shot into the air and, after the victim asked whether or not he would shoot him, the appellant did so. He then walked up to the victim and said “get up, you’re not shot.” He then approached his wife and told her that they needed to get their stories together. He called the police, but lied about the event. All participants in the parking lot dispute were intoxicated. Id. In this case, Fish’s contact with Kuenzli and the two dogs drastically differs from the drunken parking lot confrontation discussed in Braley.

The State’s Answering Brief relies almost exclusively on Braley and the Arizona case of State v. Salazar, 182 Ariz. 604, 610 (App. 1995). 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.

“[T]he ‘fight or flight’ response [is] state-of-mind evidence, analogous to battered spouse syndrome testimony that has been approved many times…We conclude that the psychologist testimony could have been permitted to testify about the ‘fight or flight’ response if the trial court concluded such testimony would have aided the jury in understanding the reasonableness of Filomeno’s belief that he was in mortal danger. It seems doubtful to us that the psychologist would have been permitted to testify that Filomeno’s actions were reasonable.” Filomeno v. State, 930 S.2d 821, 822-23 ( Fla. 2006). 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 person in the defendant’s shoes.

The admissibility of expert opinion is the responsibility of the appellate court when it presents an issue of law or logic. State v. Moran, 151 Ariz. 378, 381, (1986), citing State v. Chapple, 135 Ariz. 281, 297, n. 18 (1983). Also see State v. Lujan, 192 Ariz. 448, 452 (1998) (the Arizona Supreme Court applied de novo review).

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

Dr. Pitt would not have attempted to explain to the jury whether or not Fish acted “reasonable”. [Ans. Br. 69]. 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.

If the State’s argument is correct then the medical examiner’s 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 because all of us have faced fear and intimidation.

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

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 on one particular occasion intends to use deadly force or that the use of such force was not justified.

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

Fish was grilled about whether the Kimber 10mm was one of the “most powerful” guns that he owned. [ Id. 193-94]. He was asked about the written training materials that he received when he took a concealed weapons course. [ Id. 199-200].

During the cross-examination of Debora Fish, the State asked her about ammunition that was found in the Fish family van, including .380 caliber bullets. [R.T. 5/23/06, 127]. She was questioned about the CCW courses that she completed including “situational shooting”. [ Id. 130]. She was asked about where in the house the Fish family stored guns. Debora answered that they kept guns in her bedroom in large, metal gun cases. [ Id. 160].

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

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

U.S.

v. Clifford, 640 F.2d 150, 153 (8^th Cir. 1981)[5]. The “history” of gun ownership was irrelevant and prejudicial. Rule 401, 402, 403, Ariz. R. Evid.

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

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

The State, without citing any legal authority, argues that the testimony challenged by Fish was cumulative and consistent with his own defense. Lost in the process, however, is the puzzling allowance by the trial court of Fish’s explanation that “brandishing a weapon” is unlawful in response to grand jury questioning. Fish explained that brandishing a weapon is a crime “in and of itself”. [Ex. 309, p. 254]. It was inappropriate for the trial court to allow Fish to explain the “law” on brandishing a weapon when it was never supported by a jury instruction, statutory reference, or otherwise.

The 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. 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. For similar reasons, questions and answers posed to Fish about the “legal consequences” of injuring someone should not have been allowed.

The questioning by the grand jury was not properly placed in context and in perspective without a brief explanation of Fish’s background. As a result, the exclusion of the “background” testimony did violate Rule 106, Ariz. R. of Evid.

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

The Court of Appeals in U.S. v. Taghipour, 964 F.2d 908, 910 (9^th Cir. 1992), did not rule that transcripts may generally be provided to the jury during deliberation, but only that a transcript of an audio tape may be presented to the petit jury when the audio tape itself has also been admitted into evidence. The transcript in Taghipour not only related to an admitted audio tape, but one translated from another language in part. Id. The grand jury testimony of Fish, however, did not relate to an audio tape. The trial court denied introduction of other transcripts [R.T. 6/26/06, 10] because they would “unduly highlight” the testimony.

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

The State argues that the redaction at pages 173-74 of the grand jury transcript was insignificant. [Ans. Br. 84]. The redacted statement explains why Fish felt that he was forced to shoot Kuenzli, which related directly to the “reasonableness” of his actions. It was unfair to allow part of Fish’s answer yet cut off the remaining portion of the answer, which explained the basis for his “reasonable” action using deadly force. [R.T. 5/9/06, 275-77].

Finally, the trial court forever discounted the testimony of Fish by excluding G.J. 266, lines 3-12 [Appx. 10]. First, Fish explained that he would only shoot a dog “if he could not get the dog to stop…any other way.” Then, particularly important in light of questions from the grand jury, he explained why he was forced to shoot Kuenzli because he could not “get Kuenzli to back off.” The excluded answer by Fish was essential to explain the portion of the answer allowed by the court. [Ans. Br. 85]. The trial court is required to place any portions of grand jury testimony into evidence when necessary to qualify, explain or place into context other portions already introduced. State v. Prasertphong, 210 Ariz. 491, 499 (2005).

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

The admission of Lucien Haag’s testimony regarding the Kimber handgun and its 10mm ammunition was erroneous. State v. Gendron, 168 Ariz. 153, 155 ( Ariz. 1991).

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

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

Arizona law allows lay opinions on numerous similar subjects. See State v. Miller, 186 Ariz. 314, 322 (1996) (grooves 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 lay person allowed; photos allowed).

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

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

The State relied so much upon the testimony of Dr. Horn, especially regarding “defensive wounds” during its closing argument, it is 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]. Fish argued that there was “literally ten possible explanations for why Kuenzli’s right hand [and arm] was in front of his torso. [R.T. 4/19/06, 49]. 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 conceded that Horn’s opinion that Kuenzli suffered defensive wounds was one of three different possibilities and was not supported by any other evidence making it more likely than not that the wounds were “defensive.”[6]

All of the opinions offered by Dr. Horn were supportive of the State’s theory, but all were also speculative at best. On cross-examination, Dr. Horn conceded that Kuenzli could have had a clenched or closed fist wrapped around his thumb at the time of shooting, rather than an open hand. [R.T. 5/2/06, 37]. The tips of the fingers may have been out of the way of the track of the bullet. [ Id. 40]. Dr. Horn 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.

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

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

The trial court’s allowance of the speculative testimony of Dr. Horn, however, must be considered a far-fetched application or extension of State v. Paxson, 203 Ariz. 38 (App. 2002).[7] An expert opinion must be within a reasonable degree of medical probability which is an important evidentiary standard throughout the United States 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”.

The State relies upon State v. Murray, 184 Ariz. 9, 29 (1995), where the trial court allowed testimony about footprint evidence based upon the training and experience of Detective Lent. The court noted that the training and experience of the expert must qualify him or her to render “enlightened opinions and draw sophisticated conclusions from the particular evidence available”, citing State v. Dixon, 153 Ariz. 151, 155 (1987). The appellant merely argued on appeal that Detective Lent was not qualified, not that the expert’s opinion was inappropriate.

The State 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.

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

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

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

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

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

Medical testimony, when “inconclusive” may be of value when considered with other evidence. Id. , citing Butler v. Wong, 117 Ariz. 395, 396 (App. 1977). In Ellevan, the testimony of Dr. Palmer was substantially fortified by the introduction of a scientific study and the testimony of the petitioner, which affirmatively showed that he likely contracted AIDS two years prior to sentencing. The same composite of evidence simply does not exist to support the critical opinion of Dr. Horn that Kuenzli suffered “defensive wounds”, predicated only upon the single fact that his hand and forearm were in front of his torso when he was shot. Nonetheless, the testimony of Dr. Horn effectively transformed Kuenzli from “first aggressor” to helpless victim without any credible evidentiary basis.

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

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

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. Ariz. R. Crim. P. 24.1(c)(3)(i).

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

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

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

Most statutes require not only that you believe that you need to use force but that a reasonable person in the same situation also would have believed that force was necessary. Specifically, you’re justified in killing someone if you honestly and reasonably believe it’s necessary.

Erroneous jury instructions can violate due process and render a trial unfair. Ho v. Carey, 332 F.3d 587 (9^th Cir. 2003)(erroneous instruction on general intent and malice in second degree murder case violated constitutional rights of accused citizen to have jury correctly decide every element of the offense); Powell v. Galaza, 328 F.3d 558 (9^th Cir. 2002)(specific intent); Keating v. Hood, 191 F.3d 1053 (9^th Cir. 1999), cert. denied, 531 U.S. 824 (2000)(jury instruction that omitted mens rea element violated due process of law). Plain error occurs when the trial court fails to instruct on an “element” of the offense because the instruction violates substantial due process rights. U.S. v. Alferahin, 433 F.3d 1148, 1157-58 (9^th Cir. 2006); State v. Ontiveros, 206 Ariz. 539 (App. 2003).

“Then it is our final responsibility to determine law and policy and it becomes our duty to ‘look over the shoulder’ of the trial judge and, if appropriate, substitute our judgment for his or hers.” State v. Chapple, 135 Ariz. 281, 297 n.18 (1983). “[A] trial court has a duty to instruct on the law relating to the facts of the case when the matter is vital to a proper consideration of the evidence, even if not requested by the defense and failure to do so constitutes fundamental error.” State v. Avila , 147 Ariz. 330, 337 (1985); State v. Tittle, 147 Ariz. 339, 342 (1985)(citing numerous Arizona cases).

A trial court’s erroneous instructions on a defendant’s affirmative defense constitutes plain or fundamental error. State v. Preyer, 502 A.2d 858, 861-63 (1985); Omaha Min. Co, v. 1^st Natl. Bank, 415 N.W.2d 111, 115 (1987). Both cases were cited with approval by the Arizona Supreme Court in State v. King, 158 Ariz. 419, n.5 (1988)(fundamental error in insanity instruction).

The State may have been “indifferent” about the “motive” instruction, but neither Fish nor the court were 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.

The Arizona Supreme Court has noted that “standard instructions about the burden of proof provide a poor substitute for a properly supported alibi instruction.” State v. Rodriguez, 192 Ariz. 58, 63 (1998). Likewise, the Arizona Supreme Court has expressly found that the failure to reinstruct the jury on the meaning of proof beyond a reasonable doubt at the close of the evidence, even if the jury has been properly instructed on the concept at the beginning of the case, constitutes fundamental error. State v. Johnson, 173 Ariz. 274, 276-77 (1992). See, State v. Noriega, 187 Ariz. 282, 286-87 (App. 1996)(“mere presence” instruction). Arguments of counsel cannot cure significant flaws in jury instructions because the jury is instructed that the arguments, statements and comments of counsel are not evidence and are to be disregarded if they are not supported by the evidence. State v. Johnson, 169 Ariz. 567, 572 (App. 1991)(Jacobsen J., dissenting), reversed on other grounds, 173 Ariz. 274 (1992). The normal rule is that an erroneous jury instruction presumably results in prejudice. State v. Arceo, 928 P.2d 843, 853 ( Hawaii 1996). See the discussion of legal authorities in part a.

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

The State does not quarrel with the proposition that whether or not an object is a deadly or dangerous weapon or instrument is a jury question. State v. Caldera, 141 Ariz. 634, 637-38 (1984). Nor does the State rebut Arizona law to the effect that a dog may be a dangerous instrument based upon the dog’s history. Schleier v. Alter, 159 Ariz. 397, 398, 400 (App. 1989). [See Op. Br. 60; Ans. Br. 111].

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

Fish asserts that the reasonable doubt instruction approved in State v. Portillo, 182 Ariz. 592 (1995), constitutes fundamental or structural error. [Op. Br. 61]. It denied Fish of due process of law.

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

[Fish] 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…. 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.

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

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

“Reckless”, second degree murder is also inconsistent with self-defense. In other words, the jury instructions given by the court, over objection by Fish, were illogical. The defense of self-defense is NOT applicable to reckless homicide. State v. Moore , 729 A.2d 1021, 1030-31 (N.J. 1999); Duran v. State, 990 P.2d 1005, 1008-09 ( Wyo. 1999). A “directed verdict” should have been issued on recklessness. [R.T. 6/12/06, 12-13, 22-24; R.T. 6/6/06, 25-26, 33-34, 37-38].

After the jury verdict, Fish filed a Motion for New Trial arguing that the lesser-included instruction for “reckless” manslaughter should have been given if and once the “reckless” second-degree murder instruction was provided to the jury. [I.R. 352, 13-14]. Once the trial court approved “reckless” second-degree murder, then reckless manslaughter became a “necessarily included lesser offense” under Rule 23.2, Ariz. R. Crim. Pro. and due process of law. The Defense never waivered from the position that neither “reckless” instruction should have been given. [R.T. 6/6/06, 24-79]. If the greater was given, however, the lesser should have been given. See, Bradley v. Duncan, 315 F.3d 1091 (9^th Cir. 2002), cert. denied, 540 U.S. 963 (2003)(refusal to instruct on entrapment denied “full defense” in violation of due process); Horgan v. Gibson, 197 F.3d 1297 (10^th Cir. 1999), cert. denied, 531 U.S. 940 (2000)(trial court’s failure to give lesser-included instruction violated Beck v. Alabama, 447 U.S. 625 (1980)); Hennessey v. Goldsmith, 929 F.2d 511, 516-17 (9^th Cir. 1991)(failure to instruct on element of crime violates due process, but harmless in Hennessey); Allen v. Morris, 845 F.2d 610, 617 (6^th Cir. 1988), cert. denied, 488 U.S. 1011 (1989)(failure to instruct on lesser included offenses when evidence warrants raises habeas claim); Vujosovic v. Rofferty, 844 F.2d 1023, 1027 (3^rd Cir. 1988)(failure to instruct on lesser included offense supported by evidence violates due process). See also the legal authority above in Section a.

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 oppose the manslaughter instruction, but only because “recklessness” did not apply to the case.

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

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. Cumulative error is an extension of the harmless error doctrine. [Op. Br. 64-65]. Darks v. Mullin, 327 F.3d 1001, 1018 (10^th Cir.), cert. denied, 540 U.S. 968 (2003)(“Cumulative error analysis is an extension of harmless error… [T]he cumulative effect of two or more individual harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.”); U.S. Const. amend XIV; Ariz. Const. art. II, §§ 4, 24. Alcala v. Woodford, 334 F.3d 862, 882-83 (9^th Cir. 2003); Cargle v. Mullin, 317 F.3d 1196, 1206-07, 1208, 1221, 1223 (9^th Cir. 2003). See also, Kyles v. Whitley, 514

U.S.

419, 421-22, 440-41 (1995).

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

Pursuant to Rule 31.13 Arizona Rules of Criminal Procedure, undersigned counsel certifies that this Reply Brief is double spaced, uses 14-point Times New Roman proportionately spaced typeface and contains 9,986 words.

The Reply Brief exceeds the 7,000 word limitation of Rule 31.13(b)(2), but this Court has approved a Reply Brief of 10,000 words.

The original and six copies of this Reply Brief were filed by mail. The Briefs were addressed to the Clerk of Court of Appeals for the State of Arizona and mailed by Fed-Ex for delivery within three calendar days on _________________, 2008. See Rule 31.13(a).

I hereby certify that on this ____ day of April, 2008, I mailed copies of the attached to the following people:

[1] The State formulates its version of statements about the shooting by carefully selecting segments of the testimony of several witnesses; rather than the one complete, cohesive description provided by Fish [Ans. Br., 9 – 10]. The State’s “composite” statement is never in context and, at times, can be misleading.

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

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

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

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

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

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