A retired school teacher was found guilty of second degree murder in Coconino County on June 14, just days after a failed attempt in the Arizona Supreme Court to have the effects of a recently passed self-defense bill retroactively applied to his case.
Harold Fish, a father of seven, adamantly claimed in Coconino County Superior Court that he feared for his life when he shot a homeless man to death on a northern Arizona hiking trail on May 11, 2004.
His defense attorney said he was “devastated” by the verdict and would file a motion for new trial and an appeal as his client, Harold Fish, sits behind bars in Coconino County Jail.
“I have never been more confident going into a jury trial,” said A. Mel McDonald. “The people around the courthouse and familiar with the case thought he would be acquitted after two to three hours (of jury deliberation).”
David Rozema, the chief deputy attorney of the Coconino County Attorney’s Office, supported the decision of the jury, but called the trial a “sad case for everyone.”
“We support the jury’s verdict and appreciate the fact they were able to put emotions aside and apply the law,” he said, adding, “the law simply can’t allow this type of behavior.”
The defense
According to court documents filed by the defense, Fish states while on a six-hour hike, two dogs in the care of Grant Kuenzli, a stranger, suddenly charged him in an “aggressive, unprovoked manner.”
After it became apparent that Mr. Kuenzli was “unable or unwilling” to restrain the dogs, he fired a warning shot in an attempt to deter the animals. At that point, Mr. Kuenzli, began acting erratically and using threatening language, a defense document states. He began to run toward Fish.
After giving several verbal warnings, Fish shot Mr. Kuenzli three times in the chest from five to eight feet away with a pistol he carried to scare off wildlife.
Prompted by media coverage, witnesses — including former roommates, four security guards, a justice of the peace, and a fire marshal — came forward and described Mr. Kuenzli to investigators as a volatile character, but the information was kept from the jury by Coconino County Superior Court Judge Mark Moran, according to court documents filed with the Arizona Court of Appeals.
Mr. McDonald also said the jury was prevented from hearing evidence and expert testimony about Mr. Kuenzli’s psychiatric condition and history of violent behavior, including two suicide attempts and an alleged strangling attempt of a man visiting a woman Mr. Kuenzli had been “stalking.”
The defense alleges the Coconino County Attorney’s Office improperly urged the Coconino Sheriff’s Department to remove Scott Feagan, the original investigator of the case after he concluded that Fish had legitimately acted in self-defense — and that his replacement was instructed to not seek information damaging the reputation of Mr. Kuenzli.
The prosecution’s contention that Mr. Kuenzli was unarmed was not accurate, said Mr. McDonald, adding that Mr. Kuenzli had a large screwdriver in his back pocket. This information was not presented to the jury and will be part of the basis of a motion for new trial and an appeal, he said.
Evidence in the case revealed the two dogs — a male chow named Hank and a female German shepherd named Sheba — had been given to Mr. Kuenzli earlier that day by the Payson Humane Society, who had instructed him to keep the animals on leashes, according to the defense document.
Hank had been seized by animal control workers in 2003 and had a documented history of aggressive behavior toward adults and children, and was once almost shot by a Gila County Sheriff’s detective, according to the document.
The previous owner of Sheba, the German shepherd, said “she would probably run up to someone if she was with another dog” and would “appear aggressive through barking and growling and might run at you.”
A Coconino Sheriff’s Department detective said the dog “would have bitten anybody given the chance” on the night of the shooting of Mr. Kuenzli.
Janet Ostrom, director of the Payson Humane Society, refused to comment to Arizona Capitol Times on the dogs given to Mr. Kuenzli, as instructed by legal counsel of the animal shelter.
The prosecution
Mr. Rozema, of the county attorney’s office, flatly rejected Mr. McDonald’s assertions that character evidence not favorable to Mr. Kuenzli was improperly withheld.
Character evidence was litigated “extensively” during pre-trial motions and Judge Moran set various parameters for evidence at trial, many addressing the character issues of both parties, Mr. Rozema said.
“Our position at trial was allegations of the victim’s bad character were largely irrelevant because Mr. Fish didn’t know the victim,” said Mr. Rozema, who did not try the case but had significant involvement as chief deputy attorney. “These people didn’t know each other.”
A post-conviction document released by the Coconino County Attorney’s Office states that substantial evidence to warrant the conviction was introduced.
According to the document, Fish told Mr. Feagan, the original investigator, that Mr. Kuenzli was yelling “don’t shoot, don’t shoot” with his bare hands out in front of him after the warning shot was fired at the dogs.
He also explained to Mr. Feagan that he thought Mr. Kuenzli was going to “beat on him,” furthering the prosecution’s position that Fish had shot an unarmed man three times in the chest.
Also, based on testimony from Dr. Kevin Horn, a medical examiner who examined Mr. Kuenzli’s body, there was no “conceivable way that a juror could possibly conclude that it was reasonably apparent to Mr. Fish to that Mr. Kuenzli was using or threatening to use deadly force upon him.”
Fish’s failure to issue a warning shot for the victim as he had with the dogs also “begs the question whether full use of deadly force was justified,” the prosecutor’s document states.
The County Attorney’s Office also had strong reservations about Mr. Feagan’s handling of the investigation and made those feelings known to the sheriff’s department on numerous occasions, said Mr. Rozema, citing that Fish was allowed to “wander freely” at the scene and to overhear conversations between law enforcement officers.
Mr. Feagan also reached the opinion that Fish had justifiably shot and killed Mr. Kuenzli “within hours” and that a personal bias prevented him from forming an objective opinion, he said.
“It’s important for the lead detective to set aside those types of things,” he said.
Moreover, the County Attorney’s Office expressed concerns to the sheriff’s department though never requested Mr. Feagan be removed from the case. He stepped down voluntarily from the result of the conversations, Mr. Rozema said.
The law
Earlier this week, the Arizona Supreme Court refused to order the trial court jury to retroactively implement recent changes in self-defense laws when they considered the fate of Fish.
The court’s June 9 decision marked the third setback for Fish’s attorneys to have burden of proof changes granted by the passing of S1145 employed in the defense of their client.
A day before, the Arizona Court of Appeals ruled in a 2-1 decision to not accept jurisdiction of the matter and on May 9, Coconino County Superior Court Judge Moran ruled the justification amendments could not be applied retroactively because they amended a substantive and not procedural change.
Though it contains an emergency clause, making it effective immediately upon becoming law, S1145 made no mention of any clause that would allow it to be used retroactively.
As a result of the ruling, Fish had the burden of proving his innocence by a lower standard preponderance of evidence — as required under self-defense statutes established by the Legislature in 1997, said Mr. Rozema.
The newer bill, which was signed into law by Governor Napolitano in late April, has a two-part effect on the issue of self defense, said Landis Aden, president of the Arizona State Rifle and Pistol Association, an affiliate of the National Rifle Association, which has paid close attention to the case.
The first implements “castle doctrine” which allows potential victims of violent assaults in their homes or vehicles to use lethal force against their attacker. A similar bill was passed in Florida in 2005, said Mr. Aden, a self-described “volunteer lobbyist” with 20 years of experience. He strongly supports the new law and calls the conviction of Fish a “miscarriage of justice.”
The second change shifts the burden of proof from the defendant, who is required to prove that he or she acted legally in the court of law, to the state, which now must prove beyond a reasonable doubt that a defendant acted unlawfully when prosecuting those claiming self-defense.
Sen. Tim Bee, R-30, the principal sponsor of S1145, did not return phone calls to the Arizona Capitol Times, but minute entries indicate in 1997 he was the sole dissenting voice in a 7-1 Senate Judiciary Committee vote to pass a bill establishing the preponderance of burden on defendants.
The enthusiasm and relief of some to S1145 is met with trepidation and outright concern of some prosecutors that the statute changes could result in making it impossible to convict legitimate murderers.
“Every trial will become a challenge as the prosecutor has to find evidence that each of an infinite number of possible scenarios which would create justification didn’t happen,” La Paz County Attorney Martin Brannan wrote lawmakers in an e-mail, as reported by The Arizona Republic. “Modifying Arizona’s justification defenses will not protect the law-abiding but will rather have the effect of protecting those least worthy of protection.”