Ridiculous Conviction--AZ Dog Walker Shooter

[HarryB]

To continue the thread updated here:

http://www.thehighroad.org/showthread.php?t=117022

http://www.azcentral.com/php-bin/cl...l.com/news/articles/0615hikershooting-ON.html

Man convicted in killing of hiker

Peter Corbett
The Arizona Republic
Jun. 15, 2006 11:55 AM

A retired Valley teacher was convicted of second-degree murder by a Coconino County jury that rejected his self-defense argument in the shooting of an unarmed man on a trail north of Payson.

Harold Fish, 59, faces a sentence of 10 to 22 years for killing Grant Kuenzli, 43, in a confrontation involving the victim's dogs May 11, 2004, in the Coconino National Forest.

Coconino County Superior Court Judge Mark Moran will set a sentencing date on Monday in Flagstaff.

Fish, a father of seven, was jailed after the verdict was announced late Wednesday afternoon, following two days of jury deliberation.

Fish's attorney, Melvin McDonald, said he was shocked by the verdict and plans to appeal.

"Ten years in prison for a guy who is attacked on the trail and he has four seconds to react," McDonald said. "He's now convicted of murder. I will never understand that until the day I die."

Fish claimed he was defending himself from a violent attack after two dogs and then Kuenzli charged at him.

McDonald said the judge should have permitted evidence about Kuenzli's character and the fact that he was carrying a screwdriver in his back pocket that could have been used as a weapon. Those two issues will be central to the appeal, he said.

Coconino County Attorney Terry Hance said he thinks the verdict "reflects the sentiment of the community" about the case.

The shooting sparked debate in Arizona and nationally about self-defense, the use of firearms, the dangers of unleashed dogs and the safety of hikers in the wilderness.

Gun-rights advocates also have followed the case.

McDonald said that the National Rifle Association contributed about 5 percent of the cost of defending Fish.

Hance, the county attorney, said the jury sent a clear message about when it is, and is not, appropriate to use deadly force.

 

[Cosmoline]

There are enough facts in the accounts to raise my brows a bit. No bites, no dead dogs, no weapon in the dead man's hands. I think you could call that murder. There is at least a jury question. The excluded evidence probably should have come in, and I think he has some strong appeal points. The possibility of a deadly weapon on the victim's person tends to bolster the claim that he posed an imminent deadly threat, even if the shooter didn't see it. The past psychotic behavior of the victim would also tend to lend credibility to the defendant's version.

 

[TallPine]

I thought this guy had already been acquitted or charges dropped once already

 

[gunsmith]

& what "message" is that?

said the jury sent a clear message about when it is, and is not, appropriate to use deadly force.

Clear as mud!

So having two dogs come at you and a guy charging you despite knowing you have a gun in your hand is not the time for self defense? you need to wait untill you have a screwdriver in your chest and a dog at your throat?

Most of my life has been spent in NY and SF and sooooo many people think crazy homeless people need to be coddled and that they are some how noble because they are smelly and crazy and can not mind their own business.

 

[ball3006]

There must be more to this.....

I haven't seen a dog yet that will continue to approach you after you placed a shot between their front legs......chris3

 

[NavajoNPaleFace]

This case was well publicized when it first happened many months ago.

Even with his live accounts to the news media it was quite clear his justifications were iffy at best.

From what I hear my impression is that his was a bad shoot and he deserves whatever the courts muster out to him.

Just so everyone knows the guy shot at (or hit) the dogs and the dead dogs' owner came running and screaming at the shooter.

Although I would agree the shooter MIGHT have had justification to shoot the dogs at no time was a weapon seen in the hands of the, now, dead guy (nor were there any words given to indicate the shooter could've reasonably and prudently believed the dead guy even had one on him), and with Arizona state law, doesn't justify the use of deadly force.

The article left out many, many facts about the case that was made public and known back in 2004 when the incident happened.

To me it is not sufficient to be allowed to just shoot an irrate dog owner that, albeit dumb, comes running at you screaming.

The conviction is not ridiculous.

 

[WT]

Well, it looks like the shooter screwed the pooch.

 

[Snake Eyes]

...the guy shot at (or hit) the dogs and the dead dogs' owner came running and screaming at the shooter.

No, he did NOT. Fish fired a "warning" shot to scare/stop the charging dogs. The really funny thing is: when every one is justifying his conviction, they always throw in "...there weren't any dead dogs or injuries...". The guy was trying to AVOID killing initially.

it is not sufficient to be allowed to just shoot an irrate dog owner that, albeit dumb, comes running at you screaming.

How about running at you screaming that he's going to kill you, which is what Fish testified to?

and with Arizona state law, doesn't justify the use of deadly force

Wrong. You only have to be in "reasonable fear for your life or grave bodily harm". Some one running up a trail at me, in the woods, screaming like a madman that he is going to kill me, AFTER he KNOWS I HAVE A GUN would make me fear for my life.

Further, the whole altercation took place in 4 seconds. Dog charge, warning shot, Kuenzli charge, 3 shots COM. FOUR SECONDS! That's about 2.5 Tueller drills. Try it at home with your dogs, Cosmoline, (I've seen pictures of those animals) and tell me you think a reasonable man wouldn't be in fear for his life.

FWIW, the news reports I heard yesterday seem to indicate that the prosecutor fixated on the fact that Fish fired 3 rounds into Kuenzli and that 2 of the 3 were "fatal" shots, ergo, Fish was not defending himself because he fired more rounds than strictly necessary to stop the threat.

Of course, how you determine, under adreneline dump, that the first two rounds (fired in ~<1second) are sufficient, the prosecutor failed to demonstrate and Fish's attorney failed to defend.

 

[Creeping Incrementalism]

There are enough facts in the accounts to raise my brows a bit. No bites, no dead dogs, no weapon in the dead man's hands. I think you could call that murder. There is at least a jury question. The excluded evidence probably should have come in, and I think he has some strong appeal points. The possibility of a deadly weapon on the victim's person tends to bolster the claim that he posed an imminent deadly threat, even if the shooter didn't see it. The past psychotic behavior of the victim would also tend to lend credibility to the defendant's version.

Cosmoline, I don't know anything about this other than what has been presented in this thread, but everything seems to follow the shooter's account. Also, I don't know what the deal with having to have a weapon is. Hands and fingers, elbows, knees, feet, and foreheads are weapons that frequently cause great bodily harm or death.

 

[Warren]

Just watched an NBC news special on this case, and yes Fish got screwed over.

Maybe his lawyers cvould have done better I don't know.

They interviewed two of the eight jurors, one was an IT guy and the other...a teacher. And she had the lack of reasoning ability I've come to expect from teachers.

Part of what got her to vote quilty was the fact that Fish used HP ammo. I do not see how that in any way was relavent to the case.

The prosecutor should not have been able to raise that issue or the defense should have a done a better job of showing ammo choice did not matter.

Also the judge let the prosecution present all manners of evidence showing that Grant Kuenzli was a great guy, never hurt a fly type of person. However the defense was very limited in rebuting that characterzation by the judge.

How is that fair?

So we had a headline grabbing DA pandering to a jury, some of whom could not think their way out of a paper bag, put an innocent man in jail.

Hopefully, the appeals process will work out in Fish's favor.

 

[Liberal Gun Nut]

Doesn't sound ridiculous to me. Sounds very possible that it was a heated argument about "you better control your dogs', "oh yeah, you better control your dogs", "oh yeah...", which ended with a pistol shot. I could buy that, and it sounds like the jury did too.

 

[tulsamal]

Coconino County Attorney Terry Hance said he thinks the verdict "reflects the sentiment of the community" about the case.

And here all this time I thought a verdict was supposed to "reflect the law" rather than public sentiment!

Pretty bad when even the county attorney basically says you were tried in the court of public opinion rather than in the courtroom based on the law.

Gregg

 

[strambo]

No bites, no dead dogs, no weapon in the dead man's hands.

I wasn't there, so I'll not comment on the case, but start a general discussion. It is disturbing that wounds on "victims" are often required as "proof" that they were attacked, or in fear for their lives. The law has no requirement that you be wounded, or that there is obvious, incontrovertible evidence that the BG can carry out his threat...just that a "reasonable" person would be in fear for their life in the same situation.

Ironically, the better you get at recognizing deadly force situations and the better trained you are, the less likely it is that you will sustain injuries while defending yourself. Should you stall and wait for the weapon to come out...let them "get a shot" in? Maybe your "Kung Fu" is good enough to maneuver so as to be stabbed (or bit) in a non-vital loction to help you with "problem #2" in the court before you take him out.

 

[strambo]

I could buy that, and it sounds like the jury did too.

I could "buy" just about any explanation that does not defy the laws of physics or go against everything known about human behavior.

However, our laws say you are innocent until "proven" guilty. Yardstick for "proven guilty" is beyond a reasonable doubt. "Yeah, I could buy that" hardly sounds like meeting that standard. The idea is to err on the side of innocence in such matters, not err on the side of "guilty" just because the prosecutor's "theory" of motivation and justification for the charges is plausable.

 

[Biker]

It appears to me that Fish let his anger get the best of him and was too quick on the trigger. Just because you have a gun, doesn't mean you have to use it.

Biker

 

[MDG1976]

I saw the NBC show and I think he got screwed. A juror (a female tracher) said one reason they convicted him was because he used HP ammo which was "designed to kill". Fish, a 57 year old teacher with 7 kids and no criminal history, had 10 people testify that the BG was prone to sudden outbursts of violent behavior. The BG was homeless, on anti-depressants at the time of the incident, and had a long crimiminal history including 2 restraining orders from an ex girlfriend. Fish tended to the BG after he shot him and hailed down a car to call an ambulance. I think what we have here is a ignorant and biased jury. The only mistake I can see is that Fish talked to the police without "lawering up" first.

 

[brerrabbit]

I have to go with biker on this one. Not seeing any other evidence other than testimony by the survivor,,,

 

[AndyC]

Saw it last night on TV. Yeah, I think the point that he used HP ammo counted against him in the eyes of the jury was ridiculous and should have been better explained by the defense.

I also don't like the fact that talking to the police without a lawyer counts in your favour, as far as the jury was concerned.

However, my personal belief is that it was a confrontation between two individuals, neither of whom were willing to back down and one got shot as a result. Bad shoot, IMO, and a bad situation for anyone to have been in.

 

[El Tejon]

Wow, this story blew multiple THR myths out of the water!!!

1) Problem #2 does exist. It is a reality and not El Tejon's fantasy that you can go to jail for shooting someone. Imagine that!

2) Ammo selection may be a big, big factor to a jury. Let me repeat that: ammo selection may be a big, big factor to a jury. I hope poor Mr. Ayoob, who has received so much grief from the Order of the Keyboard Commando of THR, comes on by and gives us other cases where this has happened.

To those that continually ask about "case law" for this proposition, well, you can write this case down.

3) The police do not view CCWers as good people. If you shoot a fellow human being you are prey and not subject to a community service award as many on THR believe. Do not run your mouth.

BTW, this case is not ridiculous. It is what can happen and what usually happens when you kill fellow human beings. Do not think that just because you carry a pistol that you are Batman and immune for the harm you cause for using your pistol.

 

[Helmetcase]

It just doesn't smell right to me (the shooter's side of the story).

I can see why it would have been tough to convince a jury that his life was really in danger; not saying I'd have voted to convict, but I am saying I wouldn't shoot in that situation, if for no other reason than it's too damn easy to see how a jury wouldn't think you were really defending your life.

 

[Don Gwinn]

They interviewed two of the eight jurors, one was an IT guy and the other...a teacher. And she had the lack of reasoning ability I've come to expect from teachers.

Yes, she was wrong because she is a teacher. Just like the shooter is in the wrong because he is also a teacher and therefore his ability to reason is . . . . hey, wait . . . .

I just found out yesterday that I'm officially a "Highly Qualified Teacher" under the No Child Left Behind Act . . . . and I was planning to use power tools later today. Maybe I should rethink that.

 

[Beren]

I have to go with biker on this one. Not seeing any other evidence other than testimony by the survivor,,,

However, my personal belief

Your suppositions as a juror are irrelevant. If it isn't demonstrated beyond a reasonable doubt that the accused is guilty, then the accused is innocent. Facts should guide a jury's decision, not bias or "what if" scenarios unsupported by testimony or physical evidence.

The "HP ammo is designed to kill" issue is one that the defense attorney should've been able to put down. Are the police in that jurisdiction issuing HP ammo? If so, are they "intending to kill" anyone they shoot?

As a reasonable man, I can see why a 59 year-old man would be in fear for his life upon being charged by two dogs and a screaming wildman. What's he supposed to do, wait until his skull is cracked open and his brains are leaking out? Wait until the wildman knocks him down and the dogs are gnawing on him?

Does physical evidence exist to categorically disprove his accounting of events?

Best of luck to the victim on his appeal.

 

[Zonamo]

I think the prosecution was politically motivated to try and skirt AZ's new law on standing one's ground.

Just to be precise, Arizona has always been a "stand your ground" state.

§13-411. Justification; use of force in crime prevention
A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of arson of an occupied structure under section 13-1704, burglary in the second or first degree under section 13-1507 or 13-1508, kidnapping under section 13-1304, manslaughter under section 13-1103, second or first degree murder under section 13-1104 or 13-1105, sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, child molestation under section 13-1410, armed robbery under section 13-1904, or aggravated assault under section 13-1204, subsection A, paragraphs 1 and 2.

B. There is no duty to retreat before threatening or using deadly physical force justified by subsection A of this section.

The recent change in the law had to do with "affirmative defense."

Prior to the change, you could be required to prove in court that your actions were justified. After the change in the law, the court must prove your actions were unjustified. Here is the revised law with changes in blue:

§13-205 Affirmative defenses; burden of proof
A. Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence. Justification defenses under chapter 4 of this title are not affirmative defenses. Justification defenses describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct. If evidence of justification pursuant to chapter 4 of this title is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification.

As for the case in question, it was prosecuted before the change in the law.

 

[brerrabbit]

Beren

Hate to say it but the victim is dead. This was not a good shoot. The lack of injury to the dogs and to the shooter say a lot.

Whether or not the state has to prove a case now is irrevelant. at the time of the shootings, the shooter had to prove that it was a good shoot. That is why he was convicted

Even under current law, it still reeks of a bad shoot.

 

[cropcirclewalker]

I just watched portions of the broadcast again to reinforce what I thought I heard them say last night.

The prosecution argued that the piece Fish was carrying (a 10mm) was MUCH more powerful than what most police officers carry.

So, I guess if he had been carrying a .40 then that argument wouldn't have come up?

I thought a .40 and a 10mm were like identical.