Scenario: Attacked On The Trail
This is a scenario that really happened here in Payson, Arizona several months ago. I don't have an update on what has happened to date but I will post it if I read any more about it.
You are hiking on a trail through the timber in a mountainous area. Although it is "in the boonies" civilization is close. You have a CCW permit and are armed with a pistol in a fanny pack you are wearing. As you are hiking, two large dogs (on of them a Chow) come running around the bend, coming straight at you. You are convinced by the mannerisms of the dogs that you ARE in danger. Knowing the damage a large dog can do, much less two of them, you draw your weapon from your fanny pack and shoot the larger of the two, the Chow. He hits the ground immediately; the other dog turns abruptly and runs in the direction from which he came. At this point, a wild, unkempt and enraged man comes running around the bend of the trail straight for you. He is screaming that he is "going to kill you". You draw (or just raise) your weapon and fire one shot, killing the man.
Were you justified? What did you do right? What did you do wrong?
Since I am going to be out of town for a couple of days and can't follow up, I will tell you that it turned out that the man killed was a "transient" who walked dogs, as an oddjob, for the local animal shelter.
This is the shooting Bumper
Tempers flare at trail-shooting hearing
By LARRY HENDRICKS
Sun Staff Reporter
The courtroom battle took up where the legal motions left off.
With voices rising and tempers flaring, both sides in the Harold Fish trail-shooting case had to be admonished by the judge Tuesday to tone down the rhetoric.
Fish has been indicted for second-degree murder in the May 11 shooting of Grant Kuenzli, who allegedly charged at Fish after Fish fired a warning shot to scatter Kuenzli's charging dogs.
Fish has pleaded innocent, claiming self-defense. The defense wants the case sent back to the grand jury, alleging prosecutorial "misconduct."
Defense attorney A. Melvin McDonald called it the "most blatant abuse of the grand jury process ever" in his 35 years as an attorney.
Deputy Coconino County attorney Michael Lessler took issue with the characterization, at one point describing a McDonald tactic as "unethical."
That brought a reminder to both parties from Superior Court Judge Mark Moran to be "more respectful" of each other and the court.
'ERROR AFTER ERROR'
McDonald opened the hearing by contending the grand jury proceeding was filled with "error after error."
Even so, he said, the grand jury
only narrowly indicted his client.
"Their one-sided presentation, they were not able to sway one-third of the jurors," McDonald said.
Among the issues McDonald cited were: The prosecution had not told the grand jury that Kuenzli was armed with a screwdriver; The prosecution focused on Fish's martial arts training 25 years earlier as an option to shooting, which wasn't; The prosecution didn't correctly instruct jurors on self-defense training; The prosecution glossed over the aggressiveness of the dogs involved; The prosecution led jurors to believe that Kuenzli did not approach Fish at full bore, but at a walk or a lope.
Each issue alone clearly would require sending the case back to a grand jury, McDonald said.
"Let's give them the truth and what really happened," McDonald said.
Lessler, intent on wanting "to tone down emotion and tune up the logic," jabbed at each issue, point by point.
The screwdriver was not in Kuenzli's hand; Fish could have told jurors that his martial arts training was no longer an option; The laws governing self-defense were covered, not what police and weapons training courses teach; All relevant information about the dogs was disclosed; The tracker who quantified Kuenzli's speed to Fish clarified his initial estimate.
Lessler said that the purpose of a grand jury is not to determine innocence or guilt, but to determine if there is probable cause that a crime was committed and that the accused might have committed the crime.
Even so, Fish was given every opportunity to express his version of the case. He was allowed to testify at the proceeding, which is uncommon.
The problem was not with the grand jury proceedings, Lessler said. The problem was with answers Fish gave to some critical questions.
The likely clincher for the grand jurors, Lessler said, was that when Fish was asked why he did not wound Kuenzli, Fish responded that wounding a person would open him up to a lawsuit.
Therefore, Lessler said, Fish killed Kuenzli to avoid a lawsuit.
Fish stretched his credibility, Lessler added. He stonewalled on his knowledge of guns and gave an "incredulous" answer as to why he didn't shoot to wound.
"He wants a 'do over," Lessler said. "And he doesn't get one ... In short, this was more than fair.
MENTAL RECORDS SOUGHT
Attorneys also argued a motion filed by McDonald seeking mental health records of Kuenzli in order to make a psychological profile of the man to determine why Kuenzli did what he did on the day of the murder. Several accounts of past contacts Kuenzli had with people appeared to demonstrate bizarre and confrontational behavior, especially when it concerned his dog, Maggie.
Lessler argued several points as to why the records are irrelevant at trial and need not be turned over to the defense. Foremost was that the law makes evidence about a victim's prior bad acts irrelevant if the defendant and the victim never met prior. Fish had never meet Kuenzli prior to the meeting at the trailhead.
Fish, a 57-year-old retired schoolteacher, was present, along with his wife and a few supporters.
After arguments were presented, Judge Mark Moran decided to take some time before rendering a decision. He has up to 60 days to do so by law.
McDonald said after the hearing that, depending on how the judge ruled, the defense was ready to proceed. They either go back to the grand jury if the county attorney decides to submit the case again, or they head on track for trial, for which they've been preparing.
"We have a battle plan, but the battle plan is secret," McDonald said.
Lessler said that he would not speculate on what the judge's ruling would be or what would happen next.
Larry Hendricks can be reached at email@example.com or 556-2262.