Kuenzli instability inadmissible? By LARRY HENDRICKS
Should a man accused of a May 11, 2004, shooting death at a trailhead in the southern part of the county be allowed to present evidence that his victim had unstable character when it came to his dogs?
The prosecution says that because Harold Fish, 58, did not know about dozens of incidents in Grant Kuenzli's past regarding aggressive, violent confrontations about his dogs, the law doesn't allow him to present that evidence to a jury.
But the defense says it's the only way to corroborate Fish's account of what happened that day, and by presenting that evidence, he would be able to receive a fair trial.
On Tuesday, Fish sat quietly, his wife looking on from the gallery, as attorneys for both sides argued motions on what evidence should be allowed at Fish's trial, which begins Feb. 28, 2006 in Coconino County Superior Court.
The case started when Fish came off the Pine Canyon trailhead. As he exited the trailhead from a hike, he was approached by two dogs in the care of Kuenzli, 43.
Fish had originally been indicted for, and pleaded innocent to, second-degree murder in the shooting of Kuenzli, an unemployed man who lived in the woods on the outskirts of Payson. His claim is that after the dogs in Kuenzli's care aggressively charged him and he fired a warning shot with his 10 mm handgun, Kuenzli ran at him threatening death or harm.
Fish also claims Kuenzli would not stop after repeated warnings to do so. Fish shot Kuenzli three times in the chest at close range in self defense, he has consistently maintained. Fish wasn't harmed.
After the shooting, Fish's defense team uncovered more than a dozen incidents involving Kuenzli becoming aggressive and potentially violent when he was confronted by people about his dog.
The defense wants to present that evidence, along with Kuenzli's mental health records and an expert opinion of Kuenzli's character prior to the shooting, to a jury for a proper defense.
The prosecution argued Monday that the evidence the defense wants to enter at trial is irrelevant to the case, which is about Fish shooting an unarmed man. In addition to the evidence being irrelevant, it has the potential to dissuade a jury from being objective in deciding a verdict, and, finally, the evidence isn't allowed according to Arizona law.
Michael Lessler, deputy Coconino County attorney, said that because Fish had never met Kuenzli prior to the shooting, and had no knowledge of Kuenzli's prior conduct, the law precludes those prior acts to be admitted as evidence.
"The law could not be clearer," Lessler said, adding that such evidence would sidetrack a jury away from the important issue.
"This case needs to be about what happened May 11, 2004," Lessler said. The case is one of a man who needlessly used deadly force when a wide array of other options were available. Fish could have run, or fired a warning shot, or wounded Kuenzli. None of those options was considered.
Fish's attorney, A. Melvin McDonald, said that in order for Fish to corroborate what happened to him at that trailhead, he should be allowed to present evidence to do so.
Fish remembered a wild-eyed man with flailing arms coming at him threatening harm. More than a dozen other people, in the months leading up to Kuenzli's death, documented the same type of behavior in Kuenzli. All the incidents related to his dog.
In addition to the prior acts, the defense wants to present context to those acts at trial by calling an expert witness who conducted a "psychiatric autopsy" on Kuenzli. Dr. Steven Pitt made an analysis of Kuenzli's behavior, based on a variety of witness accounts who had run-ins with Kuenzli prior to his death.
Pitt concluded that Kuenzli was violent, threatening, paranoid, suspicious, irritable, had difficulty in controlling his emotions, had an explosive temper and intense anger.
He also was "quirky" about his dogs, Pitt said. Any time he was confronted about his dog, he refused to take responsibility for his actions for not having the dog leashed, or trying to let his dog have access to areas that were prohibited.
"There's remarkable consistency about this man's behavior," Pitt said.
Lessler said that Pitt's analysis contains no psychological diagnosis -- and is merely layperson opinion dressed up by a highly credentialed psychiatrist. Such testimony would unduly prejudice a jury, Lessler said. Besides, Pitt's opinion has an appearance of bias because nobody in Kuenzli's family or his friends were interviewed prior to Pitt's conclusions.
The defense also wants to present Kuenzli's mental-health records at trial. Lessler said that such a move was an attempt to introduce prior-act evidence of Kuenzli through a back door.
Judge Mark Moran will consider the arguments and render a decision prior to trial.
Prosecutors had to file new charges against Fish in March after Moran ruled that prosecutors omitted significant facts and failed to correct misleading testimony of witnesses during the grand jury presentation of the case.
In an effort to have the case thrown out of court, Fish's attorney leveled accusations of prosecutorial misconduct at the Coconino County Attorney's Office. McDonald claimed that prosecutors thwarted efforts of the lead investigator in the case that supported the idea of self-defense.
Prosecutors fired back that the office worked diligently to arrive at the truth of the matter, and the investigator's opinion of self-defense was premature and in error.
Moran found no evidence that prosecutors' actions were improper.
The case garnered significant public interest in the wake of Kuenzli's death after an investigator for the sheriff's office came out with a preliminary determination of self-defense. The investigator is no longer part of the prosecution team.
http://www.azdailysun.com/non_sec/nav_includes/story.cfm?storyID=121072*FW Note:I'm not an attorney in AZ, nor am I so familiar with AZ law that I can quote either statute or section, but it seems to me that it would be impossibly difficult to render a fair verdict without having been allowed to evaluate
all of the evidence.
How is an aggressor commanding two attacking dogs considered to be "unarmed"?
Looks to me like the state is stacking the deck.
:?
