State v. Fish

Citation222 Ariz. 109,213 P.3d 258
Decision Date30 June 2009
Docket NumberNo. 1 CA-CR 06-0675.,1 CA-CR 06-0675.
PartiesSTATE of Arizona, Appellee, v. Harold Arthur FISH, Appellant.
CourtCourt of Appeals of Arizona

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section, and Joseph T. Maziarz, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Law Office of Lee Phillips, P.C. by Lee Phillips, Flagstaff, Attorney for Appellant.

Law Office of John Trebon, P.C. by John Trebon, Flagstaff, Attorney for Appellant.


KESSLER, Presiding Judge.

¶ 1 Harold Arthur Fish ("Defendant") appeals his conviction and sentence for second degree murder. He challenges various evidentiary rulings made by the superior court, contends two instances of juror misconduct entitle him to a new trial and raises six issues related to the final jury instructions. For the reasons stated below and in our separate memorandum decision, we reverse and remand for a new trial.1


¶ 2 In May 2004, Defendant was completing a solo day-hike in a remote area of Coconino National Forest near Strawberry when he noticed the Victim off to the side of the trail thirty yards ahead of him at the top of a hill or grade apparently lying on the ground in front of a car. After Defendant waved to the Victim, two of three unleashed medium to large sized dogs near the Victim began to run down the hill at "full gallop" as if to attack the Defendant, barking and growling.3 Defendant yelled to the Victim, a forty-three-year-old man, to restrain or control the dogs, but the Defendant did not recall the Victim at that point doing anything or at least Defendant concluded the Victim could not control the dogs. Perceiving the Victim would be unable to control the dogs, Defendant dropped his hiking stick, grabbed his ten millimeter Kimber semiautomatic handgun, and when the dogs were about seven feet from him fired a "warning shot" into the ground in front of the approaching dogs, dispersing them to the sides of the trail.

¶ 3 At this point, the Defendant saw the Victim halfway down the hill accelerating towards the Defendant. The Defendant yelled at the Victim that he had not hurt the dogs, but the Victim continued to come at him, with his eyes crossed and looking crazy and enraged, cursing at the Defendant and yelling that he was going to hurt the Defendant. The Defendant, who was pointing the gun at the ground, yelled to the Victim to get back and leave the Defendant alone, but the Victim continued to race toward him, accelerating, yelling profanities and swinging his arms. The Defendant thought the Victim was going to kill him and he had nowhere to run because the dogs were at either side of the trail. At one point the Defendant yelled to the Victim to stop or he would shoot. The two men continued yelling at each other with the Victim "doing this weird kind of punching thing" until the Victim was about five to eight feet from Defendant, at which point Defendant shot the Victim three times in the chest. Defendant told investigators the entire incident lasted no more than three seconds, or alternatively, five to ten seconds. In various statements he made to investigating officers, Defendant said the Victim yelled something like, "Don't shoot! Don't shoot! Don't shoot my dogs!" At the time of the shooting, Defendant did not know the Victim, had never met him before, and knew nothing about him.

¶ 4 Defendant covered the Victim with a tarp and put Defendant's backpack under the Victim's head. Defendant then walked to nearby Highway 87 where he flagged down a passing motorist who, per Defendant's request, contacted emergency personnel. Paramedics arrived and determined the Victim was dead. Defendant gave statements to the various law enforcement officers who responded to the scene, and he testified in front of the grand jury.

¶ 5 At trial, Defendant argued he was acting in self-defense when he shot the Victim.4 Although Defendant did not testify at trial, his wife and daughter testified, as did numerous character witnesses who offered general opinions as to the Victim's and the dogs' propensity for aggression and violence. In addition, the jury was given portions of Defendant's testimony to the grand jury and heard testimony about Defendant's statements to police after the shooting. After hearing fifteen days of testimony and considering over 145 exhibits, the jury found Defendant guilty as charged. The superior court sentenced Defendant to a mitigated term of ten years' imprisonment. This timely appeal followed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and -4033(A)(1), (3) (Supp.2008).


¶ 6 By our count, Defendant raises approximately twenty-three issues on appeal.5 In this opinion we address the several evidentiary issues and jury instructions.

I. Evidentiary Rulings on Victim's Specific Prior Acts

¶ 7 Defendant contends that the superior court erred in excluding proffered evidence of prior violent acts by the Victim, most of which surrounded instances involving his dog. We conclude that while the court correctly ruled that much of this evidence was inadmissible under Arizona Rule of Evidence ("Rule") 404(a)(2), the court may have erred in precluding evidence of prior specific acts of violence related to the Victim's relationship to dogs under Rule 404(b)(2). Because we reverse and remand for a new trial on other grounds, the superior court should reconsider this evidentiary ruling if such evidence is offered at a new trial.

A. Standard of Review on Evidentiary Issues

¶ 8 We review a superior court's evidentiary rulings for abuse of discretion. State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456, 473 (2004); State v. Salazar, 182 Ariz. 604, 610, 898 P.2d 982, 988 (App.1995). An abuse of discretion occurs when "the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice." State v. Chapple, 135 Ariz. 281, 297, n. 18, 660 P.2d 1208, 1224 n. 18 (1983). An abuse of discretion also occurs when a discretionary finding of fact is not based on any evidence. United Imports and Exports, Inc. v. Superior Court, 134 Ariz. 43, 46, 653 P.2d 691, 694 (1982). If we find there was error in admitting or excluding evidence, we must also determine whether that error was harmless, i.e., whether we can say beyond a reasonable doubt that the error did not contribute to or affect the verdict in the sense that the actual verdict rendered "was surely unattributable to the error." State v. Anthony, 218 Ariz. 439, 446, ¶ 39, 189 P.3d 366, 373 (2008) (internal quotation marks and citations omitted).

B. Procedural History and Arguments of the Parties on Exclusion of Prior Specific Acts of the Victim

¶ 9 The State moved in limine to exclude evidence of the Victim's character as to violence and the Victim's prior acts of violence. Defendant argued that evidence of specific aggressive acts of the Victim, especially when related to his relationship to dogs, was admissible under a number of theories under Rule 404(a), including to show Defendant's justifiable fear of the Victim and that the Victim was the first aggressor. Defendant also argued that the prior act evidence was admissible under Rule 404(b) to show the Victim's motive and intent in attacking Defendant and Defendant's credibility. Defendant attached to his response detailed affidavits from a number of witnesses explaining the basis for their conclusion that the Victim was aggressive and violent especially in any confrontation dealing with his dogs. Those affidavits showed specific instances of violent confrontation by the Victim similar to the same conduct Defendant claimed he encountered with the Victim—that when confronted about his dog, the Victim became irrationally aggressive and threatening, got a wild look in his eyes and began thrashing the air as if to attack the person he was relating to or physically pushing that person.

¶ 10 The superior court granted the State's request in part. It stated that evidence of the Victim's specific acts of prior aggressive behavior to prove the Victim's conduct on the day of the shooting, while relevant to self-defense, was generally inadmissible because it had slight probative value compared to the risk of misuse by the jurors. The court noted that an exception existed if the character or trait was an essential element of the defense, but the court held that the Victim's character or trait for violence was not an essential element of the defense. Moreover, in homicide cases, such specific act evidence was only admissible if a defendant had been aware of such evidence prior to the alleged crime. The court then concluded that the specific act evidence was not relevant to the self-defense claim and on a practical basis could not have influenced Defendant's mind because he was unaware of such acts prior to the shooting. The court also held that such specific act evidence as it related to the Victim's intent or motive was not relevant to the self-defense claim. However, the court held that general reputation or opinion evidence as to the Victim's character for violence was admissible even if not known by the Defendant prior to the shooting to establish whether the Victim or the Defendant was the first aggressor. The court held that such general evidence would be admitted to help the jury decide issues about the Victim's conduct prior to the shooting and to corroborate Defendant's description of the events. The court also held that such general opinion testimony should be admitted under Rule 403.

¶ 11 Defendant moved the court to reconsider its ruling, pointing to his alternative arguments concerning first aggressor, credibility and the Victim's motive or intent. The court summarily denied the motion for reconsideration, holding that it had considered those other arguments, but found them...

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