Archive for May, 2004

May 30, 2004

Wichita, Kansas

From the Wichita Eagle of May 30, 2004

Intruder shot near Friends

A man trying to break into a home on All Hollow Street early Saturday was shot by the home’s occupant, police said.

Police said the resident was sleeping about 3:30 a.m. when he heard someone trying to break through his bedroom window. The resident told police he grabbed a rifle and fired after warning the intruder, whom he knew, to leave.

The wounded man went to an area hospital for treatment. Police did not release further details of the shooting.

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May 28, 2004

Cincinnati, Ohio

From Cincinnati’s ChannelCincinnati.com of May 28, 2004

Store Clerk Allegedly Shoots, Kills Robber

Employee Questioned, Released By Police

A clerk in a convenience store shot and killed a man who was trying to rob him, according to police.

The shooting happened just before 10 p.m. at the Shop Rite store on Reading Road in Avondale, WLWT Eyewitness News 5 reported.

Police and paramedics found David A. Billups, 40, of Forest Park, Ohio, … on the floor in the back of the store with a gunshot wound.

Billups was pronounced dead at the scene. He was wearing a ski mask and black leather gloves and was armed with a handgun when he was found, police said.

The clerk who pulled the trigger reportedly called 911. He was questioned by Cincinnati police investigators and then released.

Update from Cincinnati’s ChannelCincinnati.com of June 3, 2004

No Charges For Store Owner Who Shot Suspected Robber

Gun Turned Out To Be Toy

No charges will be filed against a storekeeper who fatally shot a man who entered the store and pointed what turned out to be a toy gun, the Hamilton County prosecutor said Thursday.

The statement that storekeeper Abdrab Ashishi gave police was consistent with what investigators found at the scene and the coroner’s autopsy report on the victim, Prosecutor Michael Allen said. Allen said the May 27 shooting of David Billups (pictured), 40, of Forest Park, was in self-defense.

“Police do not believe a crime was committed, nor do I,” he said.

May 27, 2004

Logan, Utah

From Salt Lake City’s KSL.com of May 26, 2004

Courier Clobbers Would-be Robber

A would-be robber pepper-sprayed a money courier, who then clobbered him with his gun and held him at gunpoint until officers arrived, police said.

The Loomis Fargo and Co. courier, Tyler Kerby, 23, “is more of a hero than anything,” Logan Police Capt. Eric Collins said.

Jason C. Wiberg, 35, Hyrum, was arrested Tuesday afternoon at the Wells Fargo bank branch where the courier had been trying to deliver cash.

Another courier waiting outside in the armored car wasn’t aware of the attack, police said.

Police transported Wiberg to Logan Regional Hospital, where he was treated for the wound to his head.

Kerby was treated at the scene, and was not hospitalized.

May 26, 2004

San Antonio, Texas

From San Antonio’s WOAI.com of May 25, 2004:

Would-Be Burglars Hit Wrong House

Two would-be burglars picked the wrong house on Monday. The owner was inside asleep, and armed.

The men broke into what they thought was an empty home on the northeast side.

“He heard them bust a window from the back. It piqued his interest and he was waiting in the bedroom,” said Sergeant Pat Michalec.

He was waiting with a large handgun. When police arrived, they found the homeowner had the suspect right where he wanted him.

“They did find the homeowner holding one of the suspects inside the house at gunpoint,” said Michalec.

The other ran away after the homeowner opened fire.

“It’s unknown if the other suspect was hit,” said Michalec.

Michael Belcher saw him.

“It may have looked like he was limping or something. He kept looking back down this way,” said Belcher.

Meanwhile, police took the suspect to jail. No charges will be filed against the homeowner.

May 26, 2004

Bergen, New York

From the Rochester Democrat and Chronicle of May 26, 2004:

Homeowner foils break-in; 3 arrested

A homeowner interrupted a burglary at his residence on Tuesday, and State Police arrested three people.

Arrested were Michael Skavarek, 45, of Rochester, charged with first-degree burglary; and David Johnston, 49, of Gates and Jacqueline Vasquez, 32, of Rochester, who were charged with second-degree burglary. All were to be arraigned in Bergen Town Court on Tuesday night.

The burglary occurred at a home on Route 19. The homeowner returned home about 10 a.m., saw people burglarizing his home and confronted them with a legally owned pistol, troopers said. No shots were fired.

Skavarek and Johnston tried to get away in a van and the homeowner punched out a window. Troopers said Skavarek then threw gasoline from a can that was in the van at the homeowner, and Skavarek and Johnston ran away.

A trooper showed up and immediately arrested Vasquez, whom the homeowner was holding at bay. Troopers searched the area and found Skavarek in woods about three miles away. Johnston broke into a neighboring house and hid, troopers said; that homeowner offered Johnston a ride, and turned him over to State Police at the command post they had assembled.

Additional charges are pending, police said.

May 25, 2004

Los Angeles, California

From Los Angeles’ NBC4.tv of May 24, 2004

Store Owner’s Son Protects Mom, Kills Would-Be Robber

Police say a potential holdup at a Colton convenience store Monday ended with one of the would-be robbers dead and two others wounded after the owner’s son pulled out a handgun and began firing.

Lt. Robert Miller says Colton police received the call of a robbery at the store at 10:15 a.m.

Three men entered the store and one of them pointed a handgun at the store’s owner and demanded she empty the cash register, said Miller.

Miller said the owner’s son took quick action, pulled out a handgun from underneath the register and opened fire.

One suspect died at the scene. The second was found in the parking lot and taken to a hospital.

Miller says a third suspect also was shot. Police arrested him at Arrowhead Regional Medical Center.

May 25, 2004

Rosemont, California

From the Sacramento Bee of May 25, 2004

Intruder killed, man hurt during robbery at home

An intruder was killed and a man was injured from an exchange of gunfire during a robbery early Monday in the Rosemont area near Jackson Highway, a Sacramento County sheriff’s spokesman said.

Sheriff’s officials believe the motive was drug related, and the residents of the home face drug charges.

At about 3:30 a.m. a woman who lives in the 9000 block of Bramble Trail Way called 911 reporting that someone had broken into her home and that her boyfriend had been shot, Sacramento County Sheriff’s Sgt. R.L. Davis said.

When sheriff’s deputies arrived they found a man lying in a back bedroom of the home. The intruder and the boyfriend had exchanged gunfire.

Devin Brown, 34, was listed in fair condition at UC Davis Medical Center for a gunshot wound to the knee.

The intruder, who had no identification on him, was pronounced dead at the scene.

Investigators said they found evidence of drug activity and obtained a search warrant for the home and vehicles. They said they discovered more than a pound of powder cocaine.

Brown faces charges of possession for sale of cocaine and possession of a firearm while possessing narcotics. Clarisa Ogo, 24, also faces charges of possession for sale of cocaine.

Davis said Brown will not be charged with murder.

“He was defending himself,” Davis said.

California law allows someone to use deadly force whenever a reasonable person believes an intruder poses a threat to kill.

May 22, 2004

Payson, Arizona

From the (Phoenix) Arizona Republic of May 22, 2004:

Shooting of dog-walker called justified

Coconino County sheriff’s detectives say the shooting of 43-year-old Grant Kuenzli was a justifiable homicide. But the victim’s friends say he was a peaceful man who had volunteered to take a couple of dogs from an animal shelter out for exercise and didn’t deserve to die.

The encounter occurred 11 days ago near Payson, when Kuenzli was hiking through the woods on the Pine Canyon Trail with his dog, a yellow Labrador retriever named Maggie, and two other dogs, a chow and a German shepherd mix.

The dogs, which were not on leashes, ran ahead and apparently startled Harold Fish, a 57-year-old retiree from Phoenix, according to sheriff’s Detective Scott Feagan.

Fish, who was carrying a 10mm semiautomatic pistol in a holster, felt threatened, Feagan said, and fired a warning shot into the ground near the dogs and then three shots at Kuenzli, all of which hit him in the chest.

“Our investigation leads us to believe this is a situation of self-defense,” Feagan said. “(Fish) was under attack.”

UPDATE (by Clayton): This report indicates that murder charges have been filed–although it doesn’t give what I would call a clear-cut explanation of why.

Coconino County Attorney Terry Hance filed second-degree murder charges today against a Phoenix man who claimed self-defense in the fatal shooting last month in the woods north of Payson.

Detective Scott Feagan said last month that the evidence would show that Fish acted in self-defense.

But after reviewing the evidence, Hance decided to file second-degree murder charges. The county attorney said he could not talk about the evidence.

“The case will speak for itself,” Hance said.

I can see why Fish would have shot the dogs; shooting the person with the dogs does sound like an arguable case that requires the justice system to work.

Flagstaff, Arizona

From the Phoenix Arizona Sun of March 24, 2005

Murder charge in hiking-trail shooting tossed out

A judge today threw out the murder charge against a Valley man who shot to death a hiker during a confrontation over the hiker’s dogs in southeastern Coconino County.

Coconino County Superior Court Judge Mark Moran’s ruling will give Harold Fish another chance before a grand jury if prosecutors choose to take the case back to the grand jury.

Last summer, the grand jury indicted Fish, a retired teacher, on a count of second-degree murder in the May 11 killing of Grant Kuenzli, who was camped in the forest with his three dogs.

Moran ruled that prosecutors omitted significant facts and did not correct misleading testimony in a daylong presentation of their case against Fish.

Melvin McDonald, a Phoenix attorney representing Fish, said he was “absolutely thrilled” by Moran’s decision on remanding the case back to the grand jury.

McDonald also said he hopes this will be the end of the case against Fish “since it should have never been brought in the first place.”

Fish was completing a hike on the Pine Canyon Trail when, he said, Kuenzli’s dogs charged at him.

Flagstaff, Arizona

From the Arizona Republic of April 1, 2005

Charges refiled in trail shooting

A second-degree murder complaint has been refiled against retired Tolleson teacher Harold Fish in the shooting of another hiker on a forest trail near Payson last year, the Coconino County Attorney’s Office announced Thursday.

This time, prosecutors are changing their tactics, said Dave Rozema, chief deputy county attorney.

The case against Fish, 57, will be made to Superior Court Judge Dan Slayton in a seldom-used preliminary hearing, which is expected to be held in mid-May. Fish’s initial appearance is scheduled for 8 a.m. on April 11.

“We filed the same count and feel confident that the case will move forward,” Rozema said.

Phoenix attorney Melvin McDonald, who is representing Fish, said he expected the hearing to last three to four days. “We’re sorry they are going this route but it will give us a chance to publicly cross-examine their witnesses. We’ll do our best to get this complaint tossed out,” he said, adding that he expected the state to call their lead detectives on the case “and we will respond with some of our experts.”

Last week, Judge Mark Moran of Coconino County Superior Court tossed out a grand jury indictment of Fish in the slaying of 43-year-old Grant Kuenzli of Payson. Moran also ordered that Kuenzli’s mental-health records be released.

Fish said he shot Kuenzli in self-defense last May after he was attacked by Kuenzli and two of his dogs. The original detective also said he believed Fish acted in self-defense.

There were no witnesses in the highly publicized case, which has raised questions about what constitutes self-defense, the danger of unleashed dogs and hiker safety on public lands. Moran wrote that the grand jury was not told of the aggressive past of the two dogs and that there was misleading testimony about how fast Kuenzli approached Fish.

Fish fired two warning shots to stop the dogs from advancing toward him. He said he shot Kuenzli three times with a semiautomatic pistol because Kuenzli ran at him while yelling a death threat.

Deputy Jeff Palmer of the Coconino County Sheriff’s Office testified to the grand jury that Kuenzli approached Fish at a speed slower than jogging. But Moran noted in his ruling that Palmer had told other deputies that Kuenzli ran toward Fish.

Some prosecutors have too much time on their hands.

Flagstaff, Arizona

From the Arizona Republic of April 18, 2006

Ex-teacher’s trial to begin in death of dog lover on trail near Payson

A retired Valley schoolteacher will go on trial this week in Flagstaff, accused of second-degree murder in a forest-trail shooting near Payson two years ago that he claims was self-defense.

Harold Fish, 58, gunned down Grant Kuenzli, 43, along the Pine Canyon Trail after a confrontation with Kuenzli and his dogs.

Fish claims his life was in danger after the dogs and then Kuenzli charged at him.

The trial could begin as early as today, but Mel McDonald, Fish’s attorney, said he does not expect opening arguments to begin until Thursday.

Jury selection began last week in Coconino County Superior Court.

The case has sparked debate on whether the shooting was justified and the threat posed by unleashed dogs.

Fish told investigators that he shot Kuenzli three times with a 10mm pistol when Kuenzli charged at him, shouting death threats.

Flagstaff, Arizona

From the Arizona Republic of April 21, 2006

No witnesses, evidence offer challenge in murder case

Most murder cases come down to how many holes the defense can poke in the prosecution’s case.

There is nothing typical about Arizona vs. Harold Fish.

The state’s case against the 59-year-old hiker, who shot and killed a camper north of Payson on May 11, 2004, boils down to picking apart Fish’s claim of self-defense. The prosecution has no eyewitnesses. It has no forensic evidence. It has nothing but Fish’s story.

And he says he was protecting himself when he shot 43-year-old Grant Kuenzli of Payson three times in the chest. When he testifies in his second-degree murder trial, which is under way in Coconino County Superior Court, Fish will say he was attacked by Kuenzli and his two dogs near the end of a strenuous day of hiking up the Mogollon Rim on Pine Canyon Trail.

“This is going to be a real challenge for the prosecutors,” said Jack Chin, a law professor at the University of Arizona and a Tucson legal analyst. “They’ve had several opportunities to reconsider and walk away, and the indictment was even thrown out once. They must think this is a righteous case, and circumstances suggest there is something more than meets the eye here.”

Making the state’s case even more difficult is Fish himself: He was a longtime Tolleson teacher, devoted family man and churchgoer with no prior record.

The prosecution’s strategy is to attack Fish’s story.

In opening statements Thursday before Superior Court Judge Mark Moran, prosecutors said there were discrepancies in the accounts of the shooting Fish gave to sheriff’s deputies and to the grand jury. For example, he gave differing accounts of the time of day and light conditions, said Michael Lessler, a deputy Coconino County attorney.

Lessler also said the small timeframe in which the encounter and shooting occurred made it “impossible” for Fish to have a conversation with Kuenzli. Fish has said he told the victim to stop, stop or be shot and that Kuenzli yelled obscenely and threatened to kill him. “And why shoot Grant Kuenzli not in the leg but the chest? He (Fish) said he didn’t want to cause legal problems because if he just injured a person they might sue,” Lessler said. “It was anger and frustration in as much as any fear that caused him to kill another human being.”

Melvin McDonald, Fish’s Phoenix attorney, said that the numerous firearm training courses Fish had taken had taught him to shoot at “center mass” if his life were in imminent danger.

He said his client had been minding his own business, even waving at Kuenzli, before Kuenzli’s dogs – a male Chow and female German Shepherd – charged at him with teeth bared. McDonald said Kuenzli was close behind and that Fish was terrified.

Scott Feagan, a detective for Coconino County Sheriff’s Office who was the original investigator on the case, said he believed Fish acted in self-defense. But that led to a major row between the sheriff’s office and the county attorney’s office, which contended that the case hadn’t been adequately investigated. Feagan was later removed from the investigation.

Former Williams Police Chief Frank Manson, was later hired by the county to conduct an independent investigation of the case.

“In my opinion, I thought that it was unusual that he would give warning shots to dogs but not a human being,” Manson said. “It’s also my opinion that the language he used during his interviews didn’t support the immediacy of having to shoot him.”

During the trial, which could last a month, the seven-woman, four-man jury will visit the scene of the shooting. They also will hear of the victim’s reputation for aggressive behavior, but the judge ruled they could not be told specific details.

At the time of the shooting, Kuenzli had a screwdriver in his back pocket. It was not brandished, and Fish told investigators he did not know about it.

While Fish has to prove that he was justified in using deadly force, others who act in self-defense may not have to. The Senate gave final approval to a bill Wednesday that shifts the burden to the state to prove that using physical force in self-defense isn’t justified. Gov. Janet Napolitano can sign or veto the measure. It is unclear Thursday what she would do.

McDonald, Fish’s attorney, said he advised those who worked for passage of the bill.

Charles Heller, secretary of the gun rights advocates Arizona Civil Defense League and host of a Tucson radio talk show about weapons, said the Fish case has been the talk of his show.

“The consensus is that Hal Fish has been victimized twice, once in a vicious attack and later by an even more vicious attack by the prosecutor,” Heller said.

Paul Bender, an Arizona State University law professor and longtime Valley legal analyst, said he questions why charges were filed.

“This seems to me to be an unfortunate accident that seems out of place with the rest of his life,” Bender said. “If you think you are attacked and your life is in danger you are going to shoot. Maybe a civil action and trying to get money for damages would have been the best way to go here.”

Payson, Arizona

From the Payson Roundup of May 16, 2006

New self-defense law won’t apply in Fish trial

A county judge has ruled a new law that makes it easier for people to claim self defense will not be applied in the case of Harold Fish, accused of shooting Grant Kuenzli at a trailhead in Pine on May 11, 2004.

In response, the defense has requested Fish’s trial be put on hold until the matter can be appealed to a higher court. The judge denied that request.

Coconino County Superior Court Judge Mark Moran ruled Tuesday that the new law, which changes the burden of proof from the defense to the prosecution, does not apply in Fish’s case, currently in trial.

The defense argued the law applies to the Fish case because the change is a procedural one, which state law allows to be applied to cases filed before the law went into effect.

The prosecution argued that the law does not apply because the change is a substantive one, and therefore, because Fish was charged under the old law, the old law still applies.

A substantive change is defined as, “That portion of the law which creates, defines and regulates rights,” according to court documents.

“The court finds that the statutory change is substantive in nature,” Moran wrote in his ruling, citing case law. Moran added that the new law also does not contain a special provision making the law apply to cases filed before the law went into effect.

Fish, 59, is accused of second-degree murder in connection with the shooting death of Kuenzli. Fish has pleaded not guilty to the charge, claiming he shot Kuenzli in self-defense.

Fish maintains that two dogs in Kuenzli’s care rushed at him as he exited the trail. To protect himself, Fish said he pulled a 10 mm handgun and fired a warning shot to keep the dogs away. He also maintains that Kuenzli then rushed at him threatening harm or death.

After several warnings for Kuenzli to stop, Fish shot Kuenzli three times in the chest at close range. Fish was not harmed, and Kuenzli did not have a weapon in his hands at the time he was killed.

County prosecutors filed murder charges against Fish, claiming that Fish went beyond the circumstances of the moment and needlessly killed an unarmed man when other options were available.

During the course of Fish’s trial, the Arizona Legislature passed a new law regarding self defense.

Gov. Janet Napolitano signed the legislation in late April. The new law, in part, now requires prosecutors to prove, beyond a reasonable doubt, that a person did not kill another person in self-defense.

Before, defendants had the burden to prove it was more likely than not that they acted in self-defense.

(More)

Flagstaff, Arizona

From the Arizona Daily Sun of May 18, 2006

Attorneys clash as officer testifies

Argument was heated in Coconino County Superior Court on Tuesday and Wednesday, with words like “ethical pygmy” being bandied about before the prosecution rested its case in the trial of a Valley man accused of shooting a man at a remote county trailhead.

The detective investigating the case said Harold Fish’s claim of self-defense when he shot and killed Grant Kuenzli on a remote trailhead May 11, 2004, was consistent with evidence found at the scene.

The prosecution, which has charged Fish with second-degree murder, is at odds with the detective’s opinion and does not want the jury to hear it. The prosecution opted instead to portray to the jury that the detective, who voluntarily resigned from the case, “did a lousy job.”

The defense countered by portraying the detective as thorough and accurate. And after being ordered by a judge not to present the detective’s opinion of self-defense to the jury, the defense did so anyway Tuesday afternoon.

The ensuing objection by the prosecution and heated argument that following led the judge hearing the case to admonish both attorneys.

In the end, the information the jury received that the detective believed Fish acted in self defense was stricken from the record and they cannot consider that information at the time they begin to deliberate.

(More background)

Flagstaff, Arizona

From Tucson’s KVOA.com of May 19, 2006

Appeals court to decide if new self-defense law affects trial

The state’s new self-defense law may be applied to the case of a retired Phoenix schoolteacher now on trial for killing a hiker near Flagstaff in 2004.

An appeals court says the jury can’t start deliberating until it rules if the new law applies to Harold Fish’s case.

Fish shot a man to death who [sic] he encountered on a trail while out hiking.

Fish says the man’s dogs charged him and he fired warning shots. Then he says Grant Kuenzli came after him and he had to shoot in self defense.

Prosecutors charged him with second-degree murder.

The legislature passed a law designed to apply to similar cases last month. It makes prosecutors disprove a self-defense claim, instead of forcing a defendant to prove the action was justified.

The appeals court says it will decide if the new law applies before closing arguments and jury instructions are given.

Flagstaff, Arizona

From the Payson Roundup of May 26, 2006

Defense rests, Fish doesn’t take stand in murder trial

The defense rested Tuesday without calling the only surviving witness to a 2004 shooting, who claims he shot and killed another man in self-defense.

Harold A. Fish, 59, is accused of second-degree murder in connection with the May 11, 2004, shooting death of Grant Kuenzli at a trailhead near Pine.

On Tuesday, the defense, led by Phoenix attorney A. Melvin McDonald, rested its case without calling Fish to the stand. McDonald had said in opening statements that the jury would hear Fish testify.

After rebuttal witnesses, the trial, being held in Coconino County Superior Court, must wait until the Arizona Court of Appeals decides whether a new law governing self-defense will apply to Fish.

Whichever way the court rules will likely postpone the trial further.

The newly enacted law places less of a burden on the defendant, forcing the prosecution to prove without a reasonable doubt the defendant was not acting in self-defense. The old law held the defendant responsible for the burden of proof.

The appellate court has promised a ruling by June 8. The trial is scheduled to resume at that point. But David Rozema, chief deputy attorney, Coconino County, said whichever way the appellate court rules, the judgment will likely be appealed to the Arizona Supreme Court.

Phoenix, Arizona

From Tucson’s KVOA.comPublication of June 8, 2006

Court rebuffs appeal in hiker shooting case

A state court today turned away an appeal asking that a new state law on self-defense be applied retroactively to the second-degree murder trial of a retired Phoenix-area school teacher in a 2004 fatal shooting on a hiking trail in remote southeastern Coconino County.

The state Court of Appeals today declined to consider the appeal filed on behalf of Harold Arthur Fish in the May 2004 shooting death of Grant Kuenzli.

Fish has said he shot Kuenzli when Kuenzli charged him and ignored warnings to stop after Fish fired a warning shot to keep two dogs away.

The new self-defense law passed by the Legislature this spring took effect immediately with Governor Napolitano’s signature. The law shifts the burden of proof from a person claiming self-defense to the prosecution and also elevates the level of proof needed.

Fish’s trial was interrupted while the appeal was pending, and closing arguments are now set for Monday. However, a lawyer for Fish says he’ll ask the Arizona Supreme Court to take the case.

Flagstaff, Arizona

From Flagstaff’s Arizona Daily Sun of June 10, 2006

Fish trial resumes Monday

Closing arguments in the Harold Fish murder trial will begin Monday morning in Coconino County Superior Court.

The Arizona Supreme Court on Friday decided against issuing a continued stay of the trial, which has been on hold for three weeks while attorneys argued motions over whether a new, more lenient self-defense law should be applied retroactively to the case.

(More)

Coconino County, Arizona

From Tucson’s KVOA.com of June 15, 2006

Retired teacher convicted in shooting death on hiking trail

A retired Phoenix-area teacher is facing a prison sentence after being convicted of second-degree murder in the 2004 shooting death of a man at a remote northern Arizona hiking trail.

Harold Fish, 59, was taken into custody after the Coconino County Superior Court jury’s verdict Wednesday.

Fish’s sentencing date will be announced Monday. According to state law, a person convicted of second-degree murder faces a minimum prison sentence of 10 years, a standard prison sentence of 16 years and a maximum prison sentence of 22 years.

Fish maintained at trial that two dogs in the care of Grant Kuenzli rushed at him on May 11, 2004, as he exited the trail on the southeastern edge of Coconino County.

To protect himself, Fish said he pulled a 10 mm handgun and fired a warning shot to keep the dogs away. He also said Kuenzli then rushed at him threatening death or harm.

Authorities said Kuenzli was shot three times in the chest and two of the wounds were fatal.

The prosecution argued that Fish overreacted and took a man’s life when other options were available and that self defense was not justified.

A. Melvin McDonald, one of Fish’s attorneys, said the verdict would be appealed.

McDonald said jurors were not allowed to hear evidence such as Kuenzli’s history of violence and aggression, and the fact that he was armed with a screwdriver at the time of the shooting.

Phoenix, Arizona

From Bullhead City’s Mohave Daily News of June 16, 2006

Self defense law before state high court

Faced with conflicting rulings by lower courts, the Arizona Supreme Court will consider a request that the justices decide whether a new state law on self defense should apply retroactively.

The law, which took effect immediately upon Gov. Janet Napolitano’s signature on April 24, is more favorable to defendants than a now-replaced statute.

Justice Michael D. Ryan on Wednesday ordered expedited consideration of Maricopa County prosecutors’ appeal of a trial judge’s decision in a Maricopa County case that the law should apply retroactively to the case because it was pending when the law took effect.

The Supreme Court will consider the matter on Sept. 26, Ryan’s order stated.

The petition filed by the Maricopa County Attorney’s Office noted that two other trial judges – one in Maricopa County and one in Pima County – had ruled in other cases that the law was not retroactive.

‘‘The legal issue raised in the state’s petition is certain to recur statewide until this court issues an opinion settling the matter,” Deputy County Attorney Diane Gunnels Rowley wrote.

The state Court of Appeals’ Phoenix division declined to consider special-action appeals of the judges’ rulings in the Maricopa County and Coconino County cases while the same appellate court’s Tucson division is considering whether to uphold the trial judge’s ruling in the Pima County case.

Ryan on June 9 refused to block the resumption of the murder trial of Harold Arthur Fish, a retired Phoenix-area teacher who claimed self defense in the fatal shooting of another man during a 2004 confrontation on a hiking trail north of Payson.

After the trial resumed with closing arguments and legal instructions earlier this week, a Coconino County Superior Court jury on Wednesday convicted Fish of second-degree murder in the 2004 killing of Grant Kuenzli. According to Fish, he shot Kuenzli with a pistol when Kuenzli charged him after Fish fired a warning shot to keep away two dogs accompanying Kuenzli.

(More)

Flagstaff, Arizona

From Phoenix’ Arizona Republic of August 3, 2006

10-year term in deadly confrontation on hiking trail

Defendant could get new trial, however

A former Valley schoolteacher who claimed self-defense was sentenced to the minimum 10 years in prison on Thursday for the shooting death of another man on a forest trail north of Payson two years ago.

But 59-year-old Harold Fish could be granted a new trial by the end of the year depending on whether the state Supreme Court decides that a new state law more sympathetic to those who use deadly force would apply to his case.

At issue is whether the law, which shifts the burden to prosecutors to prove that using physical force in self-defense is unjustified, should be retroactive to the May afternoon in 2004 when Fish shot 43-year-old Grant Kuenzli three times in the chest. Gov. Janet Napolitano signed the measure into law in April during Fish’s trial.

Coconino County Superior Court Judge Mark Moran had ruled before Fish’s trial that the law at the time of Kuenzli’s death, which put the burden on those using physical force to prove that their life was in danger, would be the guidepost for the jury deciding Fish’s case. Fish was convicted of second-degree murder after two days of deliberations in June.

Fish claimed that two dogs of Kuenzli, who was camping near a trail where Fish was hiking, attacked him, followed closely by an angry Kuenzli. There were no witnesses to the shooting.

After the trial, jurors said they didn’t buy the self-defense claim from Fish, who did not take the stand.

Both the medical examiner who performed an autopsy on Kuenzli and firearm experts testified that Kuenzli’s wounds likely were defensive. They testified that Kuenzli’s side was turned toward Fish and that one of the shots first struck him in the right hand as he was thought to move his arm in front of himself for protection.

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Phoenix, Arizona

From Tucson’s KVOA.com of September 5, 2006

Court rules that self defense law applied retroactively

Ruling on a legal issue at play in cases across the state, an appellate court ruled Tuesday that a new law on self defense applied retroactively to pending cases in which alleged crimes had already been committed.

Overturning a ruling by a Pima County Superior Court judge, a three-judge Tucson panel of the Arizona Court of Appeals said a murder defendant awaiting trial in a 2004 homicide can cite the new law in his trial.

The issue is already pending before the state Supreme Court because of an appeal filed in a Maricopa County case. The same issue is also being appealed in a Coconino County case.

The new law, which took effect immediately upon Gov. Janet Napolitano’s signature on April 24, is more favorable to defendants than a now-replaced statute.

Instead of making a defendant prove he or she acted in self defense by the relatively low standard of proof of more likely than not, the new law requires that prosecutors prove by the stiffer standard of beyond a reasonable doubt that a self-defense claim was unfounded.

In the ruling issued Tuesday, the Court of Appeals said it appeared from legislative records that lawmakers intended to be retroactive and that nothing in state law prevents that from being the case with the new self-defense statute.

The Supreme Court plans Sept. 26 to consider an appeal in the Maricopa County case.

The trial judge in that case ruled that the law applied retroactively to a pending case while the trial judges in the cases in Coconino County and Pima County said it did not.

In the Tucson case, David Garcia is charged with first-degree murder in the 2004 killing of Alexis Samaniego in an early morning shooting in an apartment.

The Coconino County case involved the since-concluded murder trial of Harold Arthur Fish, a retired Tolleson teacher who claimed self defense in the fatal shooting of another man during a 2004 confrontation on a hiking trail north of Payson. He was convicted of second-degree murder in the death of Grant Kuenzli and sentenced to 10 years in prison.

The Maricopa County case stems from a 2005 shooting in which Marcos Carrasco Mendez was charged with aggravated assault and unlawful discharge of a firearm. Another man was shot after two fistfights between him and Mendez at and outside a party.

Phoenix, Arizona

From the Tucson Citizen of February 10, 2007

Justices rule self-defense law not retroactive

The Arizona Supreme Court on Friday ruled that a self-defense justification law friendly to defendants wasn’t retroactive to offenses committed before the law took effect in April.

The 2006 law shifted the burden of proof in cases where a defendant is claiming self-defense. Instead of making a defendant prove he acted to protect himself by the relatively low standard of proof of more likely than not, the new law says prosecutors must prove beyond a reasonable doubt that a self-defense claim was unfounded.

The law took effect when Gov. Janet Napolitano signed it April 24, and supporters hoped it would be included in instructions given weeks later to jurors in the murder trial of Harold Arthur Fish in a 2004 killing.

However, the trial judge disagreed that the law could be applied retroactively. The Supreme Court’s ruling, which was from a different case, supports the trial judge’s decision and overturns a Court of Appeals ruling that said the law could be applied retroactively..

Fish, a retired Phoenix-area teacher, was convicted June 14 in Coconino County Superior Court of second-degree murder in the 2004 shooting death of Grant Kuenzil. The shooting happened during a confrontation on a trail near Payson in 2004.

Friday’s ruling came four days after a Senate committee endorsed new legislation to explicitly make the 2006 change retroactive to cases that were pending at the time. A lobbyist for prosecutors told the lawmakers they were opening a legal can of worms.

The court issued its unanimous ruling in the case of David Garcia, a man charged in Pima County Superior Court with murder in the 2004 shooting death in Tucson of Alexis Samaniego.

It was Fish’s case that prompted lawmakers to pass the law. He had claimed self-defense, saying that Kuenzil charged him in a threatening manner after Fish shot a dog that he considered a threat.

The Supreme Court said the law did not apply retroactively to cases stemming from offenses committed before April 24 because the law didn’t contain a clear statement that it was retroactive. It didn’t matter what legislative intent was because the law’s wording – namely the lack of a retroactivity provision – was clear, Justices Michael D. Ryan wrote.

The new bill would provide the retroactivity that the Supreme Court decided Friday wasn’t in the 2006 law, former Fish attorney A. Melvin McDonald Jr. said.

Ed Cook, executive director for the Arizona Prosecuting Attorneys Advisory Council, told the Senate committee on Monday that making the change retroactive could affect numerous cases.

With retroactivity, other defendants might argue that they are entitled to have their cases decided under the 2006 standard, acknowledged Sen. Linda Gray of Glendale, the bill’s sponsor.

Phoenix, Arizona

From Phoenix’ KTAR.com of March 2, 2007

Napolitano Vetoes Bill to Make Self-Defense Change Retroactive

Gov. Janet Napolitano on Friday vetoed a bill that would have made a 2006 self-defense law apply retroactively to cases pending at the time the law was passed, a change intended to help a hiker sent to prison for a fatal trail shooting that drew national notice among gun-rights supporters.

Napolitano said county prosecutors advised her that the retroactivity change would have allowed reopening of numerous criminal cases, and she said the time to make the 2006 law retroactive was when it was passed, not a year later.

“Otherwise, too many cases that have proceeded through our overburdened criminal justice system need to be resolved again,” she wrote in her veto letter.

The vetoed bill (SB1302) to make the 2006 change apply retroactively was approved 29-0 by the Senate and 42-17 by the House.

Those margins are above the two-thirds votes needed in each chamber _ 20 in the 30-member Senate and 40 in the 60-member House _ to override a veto, but Napolitano’s position could influence the votes by some lawmakers if an override is attempted.

The bill’s sponsor, Republican Sen. Linda Gray of Glendale, did not immediately return calls for comment on the veto and the possibility of an override attempt.

Phoenix, Arizona

From Tucson’s KVOA.com of April 7, 2007

Lawmakers trying again to make self-defense law retroactive

A month after their first attempt got vetoed, legislators are taking another stab at making a 2006 self-defense law retroactive.

The 2006 law made it easier for defendants to claim self-defense, and many supporters expected it would help Harold Arthur Fish, a hiker convicted in an eastern Arizona trailside shooting.

The 2006 law shifted the burden of proof in cases where people charged with a crime are claiming self-defense.

With the change, prosecutors must prove beyond a reasonable doubt that a self-defense claim was unfounded. Before the law was changed in 2006, defendants had to prove that they acted to protect themselves.

However, the trial judge in Fish’s case said the 2006 law didn’t apply retroactively to him, and the judge’s ruling was effectively upheld by an Arizona Supreme Court decision in another man’s case.

That prompted the legislative attempt earlier this year to make the 2006 law apply retroactively to cases pending when it took affect just under a year ago.

A new retroactivity version now advancing in the state House states it would apply only to cases in which the defendant did not plead guilty or no-contest and that hadn’t been submitted for a verdict as of April 24, 2006.

The requirement that a defendant not have pleaded guilty or no-contest is a narrowing from the vetoed version, which prosecutors warned could affect large numbers of cases.

While hundreds of gun-rights advocates sent e-mails to Gov. Janet Napolitano urging her to sign the bill, the prosecutors wanted Napolitano to veto the original retroactivity bill.

She vetoed the bill, citing the prosecutors’ concerns.

Hopefully, said Republican Sen. Linda Gray of Glendale, the new language will answer some of Napolitano’s concerns.

Gray said surveys indicate the new bill would apply only to 13 cases statewide.

(More)


From AZCentral.com of April 17, 2007

House rejects latest bill to make self-defense law retroactive

The House on Tuesday rejected the latest attempt to make a 2006 self-defense law favorable to defendants apply retroactively in some cases.

The House voted 31-26 against a bill (SB1166) that would have made the law apply to cases pending in trial court when the law took effect on April 24, 2006.

That time limit and a requirement that defendants had not pleaded guilty or no-contest would have limited the law’s reach to about a dozen cases, supporters said.

Gov. Janet Napolitano vetoed a broader retroactivity bill earlier this year, agreeing with prosecutors who argued it would have applied to numerous cases.

The 2006 law made it easier for defendants to claim self-defense, and many supporters expected it would help Harold Arthur Fish, a hiker convicted in a trailside shooting in Coconino County.

Fish wasn’t mentioned by name during Tuesday’s vote, but Republican Rep. Russell Pearce of Mesa said the bill would have provided an appropriate right to claim self defense to “good people defending their lives.”

Rep. Pete Rios, D-Hayden, said he voted for the 2006 legislation with the impression that the change would apply to future cases, not past ones.

The 2006 law shifted the burden of proof in cases where people charged with a crime are claiming self-defense.

With the change, prosecutors must prove beyond a reasonable doubt that a self-defense claim was unfounded. Before the law was changed in 2006, defendants had to prove that they acted to protect themselves.

Fish supporters hoped the 2006 law would be included in instructions given to jurors in his trial on charges he fatally shot Grant Kuenzli during a 2004 confrontation on a trail near Payson. Fish had claimed self-defense, saying that Kuenzli charged him in a threatening manner after Fish shot a dog that he considered a threat.

A Coconino County Superior Court judge denied a request by Fish to apply the new self-defense law retroactively to his case, and the Arizona Supreme Court on Feb. 9 ruled in another defendant’s case that the 2006 law didn’t apply retroactively.

From the Tucson Citizen of April 23, 2007

House OKs bill to make self-defense law retroactive in some cases

The House on Monday reversed itself and approved the latest attempt to make a 2006 self-defense law favorable to defendants apply retroactively in some cases.

The House approved the bill on a 32-23 vote, six days after rejecting the bill 31-27. Four Republicans and one Democrat who voted against the bill on April 17 cast votes for it on Monday.

They were: Republican Reps. Bill Konopnicki of Safford, Jennifer Burns of Tucson, Lucy Mason of Prescott and Jim Weiers of Phoenix, as well as Democratic Rep. Barbara McGuire of Kearny.

None explained their changed votes during the floor session.

The bill would make the 2006 law apply to cases pending in trial court when the law took effect on April 24, 2006.

That time limit and a requirement that defendants had not pleaded guilty or no-contest would have limited the law’s reach to about a dozen cases, supporters said.

Gov. Janet Napolitano vetoed a broader retroactivity bill earlier this year, agreeing with prosecutors who argued it would have applied to numerous cases.

The 2006 law made it easier for defendants to claim self-defense, and many supporters expected it would help Harold Arthur Fish, a hiker convicted in a trailside shooting in Coconino County.

Fish wasn’t mentioned by name during either House floor debate, but Republican Rep. Russell Pearce of Mesa on April 17 said the bill would have provided an appropriate right to claim self defense to “good people defending their lives.”

The 2006 law shifted the burden of proof in cases where people charged with a crime are claiming self-defense. With the change, prosecutors must prove beyond a reasonable doubt that a self-defense claim was unfounded. Before the law was changed in 2006, defendants had to prove that they acted to protect themselves.

Fish supporters hoped the 2006 law would be included in instructions given to jurors in his trial on charges he fatally shot Grant Kuenzli during a 2004 confrontation on a trail near Payson.

Fish had claimed self-defense, saying that Kuenzli charged him in a threatening manner after Fish shot a dog that he considered a threat.

A Coconino County Superior Court judge denied a request by Fish to apply the new self-defense law retroactively to his case, and the Arizona Supreme Court on Feb. 9 ruled in another defendant’s case that the 2006 law didn’t apply retroactively.

From Tucson’s KVOA.com of May 2, 2007

Governor gets another bill to make self-defense law retroactive

The Senate on Wednesday approved and sent to Gov. Janet Napolitano a bill that would make a 2006 self-defense law that’s favorable to defendants apply retroactively.

Earlier this year, Napolitano vetoed a similar bill that prosecutors had warned could apply to numerous case. So, supporters said the new version (SB1166) would apply to only about a dozen cases.

The cases would have to be ones in which the defendant did not plead guilty or no-contest and had been pending in trial court when the 2006 law took effect on April 24, 2006. The bill already passed the House.

The 2006 law made it easier for defendants to claim self-defense, and many supporters expected it would help Harold Arthur Fish, a hiker convicted in a trail-side shooting in Coconino County.

The 2006 law shifted the burden of proof in cases where people charged with a crime are claiming self-defense.

With the change, prosecutors must prove beyond a reasonable doubt that a self-defense claim was unfounded. Before the law was changed in 2006, defendants had to prove that they acted to protect themselves.

Fish supporters hoped the 2006 law would be included in instructions given to jurors in his trial on charges he fatally shot Grant Kuenzli during a 2004 confrontation on a trail near Payson. Fish had claimed self-defense, saying that Kuenzli charged him in a threatening manner after Fish shot at a dog that he considered a threat.

A Coconino County Superior Court judge denied a request by Fish to apply the new self-defense law retroactively to his case, and the Arizona Supreme Court on Feb. 9 ruled in another defendant’s case that the 2006 law didn’t apply retroactively.

May 22, 2004

Memphis, Tennessee

From the Memphis Commercial Appeal of May 22, 2004

(Requires Registration)

Druggist, robbery suspect wounded

A Hickory Hill pharmacist and a man trying to rob his business shot each other Friday evening just minutes before the business was to close for the day, police said.

Rodney Tubbs, owner of The Rx Shoppe, 3701 Riverdale, and the unidentified 20-year old robbery suspect were both in critical condition and in surgery late Friday at the Regional Medical Center at Memphis.

Police were looking for one or more men in a small silver car with Mississippi license plates that several witnesses believed had been casing the parking lot of the Germantown Plaza shopping center, which includes the pharmacy, just before the shootings.

May 21, 2004

Mesquite, Texas

From the Mesquite News of May 22, 2004:

Store clerk takes shot at would be robber

According to police, Anthonial Brock Jr., 23, was arrested in connection with an attempted aggravated robbery with a deadly weapon Friday night.

The plan included having a partner remain outside the store in a getaway car to bolt with the loot.

What the plan didn’t include was a store clerk packing a gun himself and not afraid to use it.

MPD Public Information Officer Sgt. Shannon Greenhaw said Brock entered the Sadler’s Food Mart location in the 1500 block of Hickory Tree Road at about 10:30 p.m.

She said he brandished a handgun and demanded money from the clerk.

“The clerk removed a handgun from under the counter and fired on the suspect — hitting him in the chest region,” she said.

Greenhaw said Brock fled the store and jumped into a 2000 Chrysler driven by Christopher Drews, 22. Together, they sped away from the location — Brock suffering from a gunshot wound to the upper body.

“A Mesquite police officer was patrolling in the area and responded to the call of the shooting over the radio,” Greenhaw said. “He witnessed the Chrysler moving away from the scene at a high rate of speed.

“He made a traffic stop and made an arrest on the two subjects — noticing that one of them had indeed been shot.”

Greenhaw said Drews was taken into custody and booked into the city jail.

Brock was remotely booked into jail as he was immediately transported to Baylor Medical Center Dallas for treatment of the injury.

No charges are being pursued at this time against the store clerk.