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Convicted murderer granted new trial by Court of Appeals

In the words of his wife, Harold Fish has missed a lot during the three years he has spent in prison for shooting and killing a man on a northern Arizona hiking trail during the spring of 2004.

Deborah Fish said the eldest of their seven children embarked on a mission to Cape Town, South Africa, for the Church of Jesus Christ of Latter-day Saints, and their youngest daughter has no recollection of spending a single day with her father.

Two of his children graduated high school. Two others have finished the eighth grade. Another child recovered after suffering a ruptured appendix.

But on June 30, the Arizona Court of Appeals delivered what Deborah Fish considers a godsend. When a reporter told her that the court had ruled to strike down her husband’s conviction, she was full of thanks after a few seconds of silence.

“Thank goodness. Thank the Lord,” she said. “We have been waiting for a long time. We have been hoping and praying for this.”

In a 58-page opinion, a three-judge appellate panel ruled unanimously to overturn a second-degree murder conviction and the 10-year prison sentence handed down to Fish by the Coconino County Superior Court in June 2006.

Fish has argued that he acted in self-defense when he shot Grant Kuenzli three times in the chest at close range. He said Kuenzli charged him in a threatening manner after he fired a warning shot to deter Kuenzli’s unleashed and aggressive dogs.

But at trial, the appellate court determined, Fish was not allowed to present jurors with relevant information that could have proven critical to his defense – primarily, evidence that Kuenzli had a history of violence.

Prosecutors with the Coconino County Attorneys Office contended Kuenzli’s past was largely irrelevant and inadmissible at trial, as Fish would have been unaware of the man’s tendencies or character at the time of the shooting.

That stance was accepted by Coconino County Superior Court Judge Mark Moran, who decided to prohibit the introduction of information that may be prejudicial to jurors or would sidetrack issues at trial.

On appeal, Fish argued that Kuenzli’s extensive history of violence and instability was crucial to prove the man was the initial aggressor in the situation, and that he acted reasonably when he fired at his charging attacker.

The court disagreed, finding that Kuenzli’s past actions could not be presented for the sole purpose of demonstrating his propensity for violence.

However, the three-judge appellate court found Fish should have been able to raise the victim’s history to counter the arguments of prosecutors who said Kuenzli was merely trying to corral his dogs when he was shot, and that Fish’s versions of events were exaggerated or outright false.
The court also found that it was unclear whether the Coconino County Superior Court had sufficiently considered whether the introduction of additional information about Kuenzli would add prejudice to the case before it rejected Fish’s attempt to introduce evidence of Kuenzli’s violent past.
While the trial court found the information had “little probative value,” the appellate panel noted the “key issue” of the self-defense claim “turned upon the credibility” of Fish’s account “because he was the only living human witness to the shooting.”
In writing for the unanimous panel, Presiding Judge Donn Kessler noted that the evidence presented against Kuenzli was “highly sanitized” and failed to demonstrate that several people stepped forward to describe the victim as “irrationally aggressive and violent and extremely frightening.”
The appellate panel also ruled that the members of the Coconino County jury who heard Fish’s case were inadequately instructed to understand Arizona’ self-defense laws pertaining to endangerment, threatening or intimidation and aggravated assault.
The lack of clear instructions left the jury to speculate whether it was unlawful for Kuenzli to charge at Fish, although the victim “could have committed an aggravated assault without ever making contact with the defendant,” Kessler wrote.
Kessler added: “The proposed instructions would have been helpful to the jury in understanding that defendant might have been entitled to defend himself with deadly force given the facts he presented to the jury.”
Kessler also noted the appellate panel’s findings that Kuenzli’s dogs could have been considered at trial to be dangerous instruments, but the omission itself was not proof of “reversible error.”

The court’s opinion remands the case back to the Coconino County Superior Court, but it is not clear how or even whether the case will be retried.

David Rozema, the county’s attorney, was not available for comment.

Also, the Arizona Attorney General’s Office has not decided whether it will appeal the court’s decision to the Arizona Supreme Court. That move could force Fish to continue serving his sentence in a state prison near Buckeye.

Aside from county prosecutors and appeals attorneys from the Attorney General’s Office, relief for the Fish family could come with a quick swipe of a pen wielded by Gov. Jan Brewer.

On July 1, the state Legislature transmitted SB1449 to her desk. The bill, presented by Fish’s state Sen. Linda Gray, would make retroactive a three-year-old law that changed self-defense statutes so that it would apply to Fish’s case.

Fish, a retired school teacher, was for the most part the impetus of the 2006 measure that implemented what is known as “castle doctrine” into state law. The doctrine expands the rights of citizens to use lethal force in cases of self-defense and issues no legal obligation to retreat.

The bill switched the burden of proof in self-defense cases to the state from the defendant, and it changed the degree of proof necessary to achieve convictions in such cases.

Now, the state must prove beyond a reasonable doubt that a defendant acted unlawfully. Before the law was enacted, defendants were required to prove their innocence by the lower standard of preponderance of evidence.

Fish’s trial court defense attorney, Mel McDonald, presented his client’s case before lawmakers and urged the passing of the legislation, which was written to take effect upon approval by the governor.

The bill was signed into law by Gov. Janet Napolitano on April 20, 2006. The signing occurred four days after Fish’s trial began, opening a lengthy and unsuccessful legal attempt to allow Fish to benefit from the law’s protections.

While S1449 sailed easily through the House of Representatives on 52-4 vote, it was not known whether Gov. Jan Brewer would sign or veto it.

The bill is opposed by the Arizona Prosecuting Attorneys’ Advisory Council, a coalition of Arizona county attorneys. The group’s executive director, Paul Ahler, said the legislation may upend an indefinite number of successful convictions of violent criminals.

At home, Deborah Fish said she has never doubted her husband’s innocence and she figures Kuenzli charged him out of a self-destructive impulse similar to the frequent occurrences of what is known as “suicide-by-cop,” where assailants force police officers to use lethal force.

And although her husband will continue to reside in prison until the Arizona Department of Corrections receives instructions on what to do with him, it’s clear that Deborah Fish has never second-guessed the decision that led to his incarceration.

“Some people have said that Hal has had no remorse for what he did,” she said. “It’s not that he doesn’t feel sorry for what he had to do, but he felt he absolutely had to. He had to defend himself or he wasn’t coming home to his wife and kids.”

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