Harold Fish Conviction: Overturned & remanded per Az. Ct. App. [Archive] - Glock Talk

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MB-G26
07-01-2009, 16:36
http://www.azcentral.com/arizonarepublic/news/articles/2009/07/01/20090701selfdefense0701.html
Hiker [HAROLD FISH] to get new trial in slaying case

by Michael Kiefer - Jul. 1, 2009 12:00 AM
The Arizona Republic

The Arizona Court of Appeals on Tuesday threw out a murder conviction of a hiker who claimed self-defense after he shot a man to death on a hiking trail north of Payson in May 2004.

The court ordered a new trial for Harold Fish, 62, convicted of second-degree murder in June 2006 for shooting Grant Kuenzli, 43. Fish said Kuenzli ran at him waving his arms because Fish had fired a warning shot into the ground to scare away Kuenzli's aggressive dogs. Fish was sentenced to 10 years in prison and already has served three years.

His case was sent back to Coconino County Superior Court because the trial court judge had not given adequate instruction on what constituted self-defense. The panel of appellate judges scolded Superior Court Judge Mark Moran [b]for not answering a jury request to define the word "attack." The panel remarked that the jury may not have understood that someone can commit aggravated assault on another person without actually touching the person.

The case sparked a rewrite of Arizona's self-defense laws in 2006 to force prosecutors to disprove a defendant's claims.

The panel also noted that the lower court had "sanitized" evidence of prior incidents in which Kuenzli had become enraged and had frightened people during encounters with the dogs. That opens the door for defense attorneys to bring into evidence prior bad behavior of victims, especially if they corroborate a defendant's story when there are no witnesses. Many times, in criminal trials, such "prior bad acts" are excluded.

Flagstaff attorney Lee Phillips, who handled Fish's appeal, said the biggest issue was about how much the jury should have been told about either man's background.

"They kind of painted (Fish) as a gun nut looking for someone to shoot," Phillips said. "And, on the other hand, what we thought was an even bigger error, is (the judge) refused to allow any of Kuenzli's prior acts of violence, many of which involved his dogs."

The court also said Moran could have allowed the defense to classify dogs as potentially "dangerous instruments," furthering the self-defense claim.

Fish's wife, Deborah, said she is hopeful that her husband will be released from the Arizona State Prison Complex-Lewis near Buckeye if the case is retried.

That could be delayed if the Arizona Attorney General's Office## appeals the ruling to the Arizona Supreme Court.

"We feel good about the ruling," she said. "It would be nice if the County Attorney's Office would listen to the ruling."

If the case is retried, a bill under consideration by the Arizona Legislature could affect Fish's trial. It would make the state's revised self-defense law retroactive to Fish's case.

Kuenzli's sister, Linda Almeter of Illinois, had called for the maximum sentence during the trial. She could not be reached for comment.

According to the court record, Fish was hiking near Strawberry on May 11, 2004, when he saw Kuenzli resting on the ground near a car. Fish waved.

Kuenzli had three dogs; two ran toward Fish, and when Kuenzli did not or could not restrain them, Fish pulled out a 10mm pistol and fired a round into the ground in front of the dogs to scare them.

Then, according to Fish, Kuenzli became enraged and charged at him, waving his arms and shouting profanities. Fish yelled for him to stop advancing and then shot him three times in the chest.

At the trial, Fish's defense attorney, Mel McDonald, argued to admit into evidence at least 10 other incidents in which Kuenzli had gotten violent with people, charged them in a manner similar to Fish's description and even assaulted them. Some of the incidents involved dogs. The jury didn't hear much about that behavior, and after 15 days of testimony, Fish was found guilty.

The prosecution maintained that Kuenzli was only trying to restrain his dogs.

"I walked out of the courtroom three years ago and told the media that this case would most certainly be reversed," McDonald said. "The tragedy was that three years of his life has been taken from him because of rulings that denied him any semblance of a fair trial."

Fish will remain in custody until the court issues a mandate.

It remains to be seen if the Arizona Attorney General's Office will appeal the ruling and, if not, whether the Coconino County Attorney's Office will retry the case. Both agencies said that they could not comment until they had weighed their options.

Two weeks after Fish's trial began, the Arizona Legislature rewrote the state's self-defense statutes to force prosecutors to better disprove self-defense claims. It wasn't applied retroactively.

Sen. Linda Gray, R-Glendale, said her pending legislation could change that. Senate Bill 1449, which was awaiting final action late Tuesday in the House, would clarify that the 2006 law applies in a retrial. It would allow the court to accept testimony on the character of the victim.

"The best-case scenario is Coconino County would drop the charges,"** Gray said.

Reporters Peter Corbett and Mary Jo Pitzl contributed to this article.

** David W. Rozema, Coconino County Attorney
110 E Cherry Avenue, Flagstaff, Arizona 86001-4627
Phone: (928) 679-8200 Toll Free: (800) 559-9289 Fax: (928) 679-820
http://www.coconino.az.gov/ca.aspx?id=15728
Email webform: http://www.coconino.az.gov/contact/form.aspx

## Terry Goddard, Arizona Attorney General
Office of the Attorney General
1275 West Washington Street
Phoenix, AZ 85007
602.542.5025
800.352.8431 (toll free)
Fax 602.542.4085
aginfo@azag.gov
http://www.azag.gov/

BillR
07-17-2009, 13:17
The CA is not going to retry him wiith the new law in place.
He should be home soon.:thumbsup:
http://www.azdailysun.com/articles/2009/07/17/news/20090717_front_200040.txt

I hope he wins a HUGE lawsuit from the county!:cool:

Sam Spade
07-17-2009, 14:08
I hope he wins a HUGE lawsuit from the county!:cool:
Why do you think he would win any such?

And just a reminder that the state is appealing up the ladder. He's not un-convicted yet.

ICARRY2
07-17-2009, 18:16
http://www.azcentral.com/news/articles/2009/07/17/20090717selfdefense17-ON.html

Coconino County Attorney will not retry Harold Fish. HE'S FREE AT LAST!