State court: Harold Fish no longer convicted felon

The Arizona Supreme Court lets stand a state appellate court’s overturning the second-degree murder conviction of trailside shooter Harold A. Fish.

By LARRY HENDRICKS
Assistant City Editor
Wednesday, December 02, 2009

Harold A. Fish, 62, convicted of second-degree murder in a Coconino County trailside shooting death of Grant Kuenzli, is no longer a convicted felon.

The Arizona Supreme Court Tuesday declined a request by Attorney General Terry Goddard to review the state appellate court’s overturning of Fish’s conviction. “He’s now a free man,” said Fish’s Flagstaff-based attorney Lee Phillips. “He’s no longer convicted of an offense, and justice has prevailed.”

Fish was convicted in June 2006 for the May 2004 shooting death of Kuenzli on a National Forest trail in the far southeast corner of the county. He argued at trial that he fired in self-defense after Kuenzli came at him aggressively after firing a warning shot at two dogs in Kuenzli’s care.

He hit Kuenzli three times in the chest and two wounds were fatal. Kuenzli did not have a weapon in his hands at the time of the shooting.

The prosecution argued that Fish overreacted and took a man’s life when other, less lethal options were available. A forensic report suggested that Kuenzli was in a defensive position when he was shot.

In June, the appellate court ruled that the jury was not instructed properly as to what constitutes “unlawful physical force.” The court also decided the jury should have heard evidence that Kuenzli was known to act violently when confronted about dogs in his care.

After the appellate court’s decision, Coconino County Attorney David Rozema said his office would not seek to retry Fish and did not oppose Fish’s release as the case made its way through the courts.

Fueling Rozema’s decision was the appellate court decision and Gov. Jan Brewer signing a law in July that made a new self-defense law apply retroactively to Fish. The new law shifted the burden of proof of having acted in self-defense from defendant to the prosecution.

Larry Hendricks can be reached at 556-2262 or lhendricks@azdailysun.com.

Keep on Glockin’ 10mm-style

Morgan

No retrial for trailside shooter

By LARRY HENDRICKS
Assistant City Editor
Friday, July 17, 2009

Coconino County Attorney David Rozema said Thursday his office will not retry convicted trailside shooter Harold Fish.

The decision comes in the wake of a state appellate court decision to throw out Fish’s second-degree murder conviction and the governor signing a bill that applies a new self-defense law retroactively to Fish’s case. And, although the appellate case for Fish, 62, a retired Mesa schoolteacher, continues and will likely take months, attorneys for both sides are working on his release from prison.

Harold Fish faces the Judge.

“It’s wonderful news,” said Lee Phillips, Fish’s co-counsel with John Trebon. “And we very much appreciate the state agreeing to Mr. Fish’s immediate release. And we are even more pleased with the decision not to pursue a second trial.”

Fish’s wife, Debbie, said she’s not sure when her husband will be released.

“But the fact that they’re not, at this point, intending to retry my husband is absolutely wonderful news,” Debbie said.

IMPROPER JURY INSTRUCTIONS

Fish was convicted in June 2006 of second-degree murder in the May 2004 shooting death of Grant Kuenzli on a national forest trail in the southeastern corner of Coconino County. He fired at Kuenzli after he said Kuenzli came at him aggressively after Fish fired a warning shot to keep dogs in Kuenzli’s care away from him.

Rozema said that two developments prompted his decision not to retry the case. First, the Arizona Court of Appeals overturned Fish’s conviction. Phillips and Trebon had filed a petition with the appellate court on multiple grounds that the trial court made errors. At the end of June, the appellate court decided the jury was not instructed properly as to what constitutes “unlawful physical force.” The court also decided the jury should have heard evidence that Kuenzli was known to act violently when confronted about dogs in his care.

Second, Gov. Jan Brewer signed a bill into law Monday that applied retroactively to the Fish case a new law on self-defense. Whereas Fish had to prove at his trial that he acted in self-defense, it is now up to the prosecution to prove at trial that Fish did not act in self-defense.

“In a case like this one, where there is limited physical evidence and no eyewitnesses other than the defendant himself, a prosecution under the new law is not appropriate,” Rozema said in a prepared statement.

Rozema continued: “For these reasons and due to the enormous strain that these types of cases place on the limited resources of our office, we have decided in the interests of justice that we will not conduct a second trial in this case.”

VICTIM’S SISTER ‘NOT THRILLED’

Michael Lessler, chief deputy Coconino County Attorney, phoned Kuenzli’s sister, Linda Almeter, several times this week to discuss the legal developments in Fish’s case.

“Her view can be accurately stated that she’s not thrilled with the idea of Mr. Fish being released, but if it allows the appellate process to work through to conclusion, then she accepts it,” Lessler said.

She will accept and respect any decision by the appellate court ultimately, Lessler added.

Phillips said the question now becomes who has authority to release Fish from prison. He and the prosecution will have a hearing with the trial judge, Mark Moran, at Coconino County Superior Court Wednesday to petition Moran for Fish’s release.

A possible drawback to Fish’s release is if the Attorney General files a petition with the Arizona Supreme Court to review the appellate court’s reversal, Phillips said. Such a petition might require Fish to remain in prison until the appellate process has concluded.

Rozema said that because a delay of months could happen while the Arizona Supreme Court makes a decision in the case and determining if the new law is constitutional, he is working with Fish’s attorneys for his release from prison.

The only possible way Fish can be sent back to prison if he is released before the appellate process is completed is if the Arizona Supreme Court overturns the appellate court’s reversal of the conviction and the newly enacted retroactivity provision of the now 3-year-old new self-defense law is declared unconstitutional.

A spokesperson for the AG’s office said no decision has been reached yet on whether to file an appeal with the Supreme Court.

VICTIM IN DEFENSIVE POSITION

At trial, Fish argued that he acted in self-defense when two dogs in the care of Kuenzli 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 said Kuenzli then rushed at him, threatening death or harm.

Fish shot Kuenzli three times in the chest. Two of the wounds were fatal. Kuenzli did not have a weapon in his hands at the time of the shooting, and Fish was unharmed.

The prosecution argued that Fish overreacted and took a man’s life when other options were available. Self-defense was not justified, particularly when a forensic report suggested Kuenzli was in a defensive position when the bullets struck him.

The jury agreed with the prosecution and convicted Fish of second-degree murder in June 2006.

As the trial got under way, the Legislature passed a self-defense law that changed the burden of proof from a criminal defendant to prove self-defense to the prosecution to prove that a defendant did not act in self-defense.

Fish argued to Judge Moran that the jury should be instructed to find facts in the case using the new law. Moran ruled that the new law did not apply retroactively to Fish and that the jury would be instructed in the old law.

Twice, the Legislature attempted to craft self-defense bills that would apply retroactively to Fish. Gov. Janet Napolitano vetoed both bills.

Larry Hendricks can be reached at 556-2262 or lhendricks@azdailysun.com.

By LARRY HENDRICKS
Assistant City Editor
Wednesday, July 01, 2009

The state Court of Appeals has granted a new trial to a Valley man convicted of second-degree murder in the May 2004 shooting death of a man on a national forest trail in Coconino County.

Harold Fish gets another chance

The court decided that the jury in the trial of Harold A. Fish, 62, was not allowed to hear evidence that might have supported his claim of self defense when he shot and killed Grant Kuenzli. The court concluded that a jury should have heard evidence that Kuenzli acted violently when he was confronted about his dogs.

The court also concluded that the jury should have been instructed more clearly on definitions of self- defense and crimes considered “unlawful physical force” to determine if Kuenzli had been committing a crime when he approached Fish on the trail.

Lee Phillips, Fish’s Flagstaff- based appellate attorney, said, “We’re thrilled that after several years in prison that Hal Fish might finally be getting the justice he deserved.”

Fish’s wife Debbie said, “I’m not really surprised. We had very valid reasons for making the appeal.”

She continued: “We’re ecstatic we finally got the answer back and hopeful that my husband will be home soon pending the new trial. It’s been a long, hard road.”

Phillips added that Fish’s release won’t be immediate because the state will likely file an appeal to the Arizona Supreme Court.

Michael Lessler, chief deputy county attorney who prosecuted the case, said that the Coconino County Attorney’s Office and the Attorney General’s Office will review the 110 pages of opinions issued by the appellate court.

“But at this point we have made no final decisions about how we will be proceeding,” Lessler added.

Fish maintained at trial that two dogs in the care of Grant Kuenzli care rushed at him as he exited a trail off Highway 87 near Pine and Strawberry. 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.

He shot Kuenzli three times in the chest. Two of the wounds were fatal. Kuenzli was unarmed and Fish was not injured in the incident.

The prosecution argued that Fish overreacted and took a man’s life when other options were available. Self defense was not justified, it contended, and a forensic report suggested Kuenzli was in a defensive posture when the bullets struck him.

The jury agreed and convicted Fish of second-degree murder in June 2006. Judge Mark Moran sentenced Fish to 10 years in prison

In the appellate court’s opinion, the judges ruled that Fish should have been able to present evidence to establish his credibility because the prosecution had said Kuenzli was “merely trying to retrieve his dogs,” at the time of the shooting.

Fish had told investigators the dogs had charged him, so he should have been able to present evidence of specific acts to which Kuenzli would react violently when confronted about his dogs, according to the opinion.

Additionally, the court ruled that jurors were not given clarity on what constituted “unlawful physical force.”

Fish had wanted to produce instructions to the jury that included crimes in the category of unlawful physical force, which includes endangerment, threatening or intimidating and aggravated assault.

Judge Moran did not allow the instructions to the jury.

By excluding such instructions, the jury may have been able to conclude that what Kuenzli did when he came at Fish did not constitute unlawful physical conduct, when, in actuality, it could have.

Particularly concerning to the court was that the jury had actually requested a definition of “attack” during their deliberations. The jury was instructed that all the direction they needed was in the jury instructions they had been given.

“Whether the question referred to the dogs or the victim’s alleged attack on the Defendant, this uncertainty underscores the need for the jury to have understood that the Victim may have unlawfully attacked defendant without physically touching him.”

The court continued: “Because there was evidence supporting Defendant’s self-defense claim and because the flawed jury instruction allowed the jury to disregard this evidence, we cannot say that the state met its burden to show harmless error,” wrote the court.

While Fish is undergoing the appellate process, the Legislature is working to pass a self- defense law that would apply retroactively in Fish’s case and give him a new trial.

Just days after Fish’s trial started, the Legislature passed a self-defense law that changed the burden to prove self-defense from the defendant to the prosecution.

Moran, the judge hearing the case, ruled that the law did not apply to Fish because the law had been created after Fish had been charged under the old law.

Last week, the state Senate voted to overturn Fish’s conviction by stating that the new law was specifically meant to apply to cases like Fish. The House of Representatives has yet to vote on the bill.

The Legislature has approved similar bills in the past, but Gov. Janet Napolitano vetoed those efforts.