Hiker convicted of murder after ruling doesn't apply new law

Daily Record and the Kansas City Daily News-Press, Jun 19, 2006 by Christian Palmer

A retired school teacher was found guilty of second-degree murder in Coconino County, Ariz., on June 14, just days after a failed attempt in the Arizona Supreme Court to have the effects of a recently passed self-defense bill retroactively applied to his case.

Harold Fish, a father of seven, adamantly claimed in Coconino County Superior Court that he feared for his life when he shot a homeless man to death on May 11, 2004, on a northern Arizona hiking trail.

His defense attorney said he was devastated by the verdict and would file a motion for new trial and an appeal as his client, Harold Fish, sits behind bars in Coconino County Jail.

I have never been more confident going into a jury trial, A. Mel McDonald said. The people around the courthouse and familiar with the case thought he would be acquitted after two to three hours (of jury deliberation).

David Rozema, the chief deputy attorney of the Coconino County Attorney's Office, supported the decision of the jury but called the trial a sad case for everyone.

We support the jury's verdict and appreciate the fact they were able to put emotions aside and apply the law, he said. The law simply can't allow this type of behavior.

The defense

According to court documents filed by the defense, Fish said that while on a six-hour hike, two dogs in the care of Grant Kuenzli, a stranger, suddenly had charged him in an aggressive, unprovoked manner.

After it became apparent that Kuenzli was unable or unwilling to restrain the dogs, he fired a warning shot in an attempt to deter the animals. At that point, Kuenzli began acting erratically and used threatening language, a defense document states. He began to run toward Fish.

After giving several verbal warnings, Fish shot Kuenzli three times in the chest from five to eight feet away with a pistol he carried to scare off wildlife.

Prompted by media coverage, witnesses - including former roommates, four security guards, a justice of the peace and a fire marshal - came forward and described Kuenzli to investigators as a volatile character, but the information was kept from the jury by Coconino County Superior Court Judge Mark Moran, according to court documents filed with the Arizona Court of Appeals.

McDonald also said the jury was prevented from hearing evidence and expert testimony about Kuenzli's psychiatric condition and history of violent behavior, including two suicide attempts and an alleged strangling attempt of a man visiting a woman Kuenzli had been stalking.

The defense alleges the Coconino County Attorney's Office improperly urged the Coconino Sheriff's Department to remove Scott Feagan, the original investigator of the case after he concluded that Fish had legitimately acted in self-defense - and his replacement was instructed to not seek information damaging the reputation of Kuenzli.

The prosecution's contention that Kuenzli was unarmed was not accurate, McDonald said, adding that Kuenzli had a large screwdriver in his back pocket. This information was not presented to the jury and will be part of the basis of a motion for new trial and an appeal, he said.

Evidence in the case revealed the two dogs - a male chow named Hank and a female German shepherd named Sheba - had been given to Kuenzli earlier that day by the Payson Humane Society, which had instructed him to keep the animals on leashes, according to the defense document.

Hank had been seized by animal-control workers in 2003 and had a documented history of aggressive behavior toward adults and children and was once almost shot by a Gila County Sheriff's detective, according to the document.

The previous owner of Sheba said, She would probably run up to someone if she was with another dog and would appear aggressive through barking and growling and might run at you.

A Coconino Sheriff's Department detective said the dog would have bitten anybody given the chance on the night of the shooting of Kuenzli.

Janet Ostrom, director of the Payson Humane Society, declined to comment on the dogs given to Kuenzli, as instructed by legal counsel of the animal shelter.

The prosecution

Rozema of the county attorney's office flatly rejected McDonald's assertions that character evidence not favorable to Mr. Kuenzli had been improperly withheld.

Character evidence was litigated extensively during pretrial motions, and Judge Moran set various parameters for evidence at trial, many addressing the character issues of both parties, Rozema said.

Our position at trial was allegations of the victim's bad character were largely irrelevant because Mr. Fish didn't know the victim, said Mr. Rozema, who did not try the case but had significant involvement as chief deputy attorney. These people didn't know each other.

A post-conviction document released by the Coconino County Attorney's Office states that substantial evidence to warrant the conviction was introduced.

According to the document, Fish told Feagan, the original investigator, that Kuenzli was yelling, Don't shoot. Don't shoot, with his bare hands out in front of him after the warning shot was fired at the dogs.