TexasRifleman
Moderator Emeritus
For information here is the appeals court ruling itself.
http://www.cofad1.state.az.us/opinionfiles/CR/CR060675OP.pdf
Among the reasons for the new trial:
And again it seems to be in a big way about the dogs being "dangerous instruments".
Apparently the judge initially instructed the first jury that they could not consider the dogs as dangerous instruments in Fish's decision not to flee.
The Fish police statement, apparently not heard by the jury:
This was not allowed, the judge said the jury couldn't consider the dogs a threat, which to me is just ridiculous.
http://www.cofad1.state.az.us/opinionfiles/CR/CR060675OP.pdf
Among the reasons for the new trial:
the
court may have erred in precluding evidence of prior specific acts
of violence related to the Victim’s relationship to dogs under Rule
404(b)(2). Because we reverse and remand for a new trial on other
grounds, the superior court should reconsider this evidentiary
ruling if such evidence is offered at a new trial.
And again it seems to be in a big way about the dogs being "dangerous instruments".
Apparently the judge initially instructed the first jury that they could not consider the dogs as dangerous instruments in Fish's decision not to flee.
55
Defendant may have initially thought that the situation
with the dogs was diffused, but when he saw the Victim charging at
him “breathing out threats and swinging,” and realized the Victim
was not coming to restrain the dogs, the presence of the dogs again
may have become a threat. Accordingly, an instruction that the
Victim’s dogs could be considered dangerous instruments and that
they may have presented a threat of death or serious physical
injury would have been proper in light of the need for an
instruction dealing with unlawful force by the Victim.
The Fish police statement, apparently not heard by the jury:
I can’t go this way. There’s a dog right
there. I can’t go over here because there’s
too much brush and there’s a dog in there
somewhere. I can’t run uphill. [The
Victim’s] there. I can’t run downhill. It’s
steep. There’s a loose rock . . . . This
guy’s going -- if I turn and run, the dogs
will get me, he’ll get me. I’ll be dead.
I’ll be, you know, bitten by the dogs.
This was not allowed, the judge said the jury couldn't consider the dogs a threat, which to me is just ridiculous.