The fate of Harold Fish, charged with second-degree murder, could hinge on Coconino County Superior Court Judge Mark Moran deciding whether to allow evidence that the victim, Grant Kuenzli, might have been unstable.
Since the onset of the case in the summer of 2004, defense attorney A. Melvin McDonald and deputy Coconino County Attorney Mike Lessler, the lead prosecutor, have argued whether Kuenzli's mental health records and evidence of several blustery confrontations were relevant.
Lessler has said a victim's history is not relevant, in fact inadmissible by law. McDonald argues Kuenzli's violent history is proof he did exactly what the defendant claims.
The debate over what should be admitted turned even more heated when McDonald that asked a so-called "psychiatric autopsy" on Kuenzli be admitted into evidence.
The autopsy, done by Scottsdale psychiatrist Steven Pitt, has drawn criticism from Lessler.
"We don't think something like this (psychiatric autopsy) belongs in court," he said.
The two sides met in court Dec. 12 in Flagstaff to argue what evidence a jury could hear once the trial begins Feb. 28, 2006.
After listening to arguments from both sides, Moran will decide what is admissible before the onset of the trial.
McDonald says the autopsy, mental health records and alleged history of instability are relevant to the case, but "they (prosecutors) don't want anything about Kuenzli brought out."
Lessler argues that the defense is trying to smear the reputation of the victim and that the health records are protected by patient-doctor confidentiality.
At the hearing in front of Moran, Lessler said state statues prohibit Kuenzli's medical records and prior history from being admitted as evidence.
He also argued that the jury should be allowed to focus on the events of the (May 11, 2004) day Fish shot Kuenzli to death near a Pine Canyon Trailhead and "not the opinions of a $300-an-hour psychiatrist."
McDonald said for his client to get a fair trial, evidence of Kuenzli's mental state is essential to corroborate Fish's account of what happened before the fatal shots were fired.
"There are things that Fish describes about Kuenzli's behavior -- like the wild look in his eyes -- (that) are things other people had seen when he turned violent," McDonald said.
Fish, 58, said he was in fear for his life when Kuenzli allegedly charged him, screaming death threats.
In claiming self defense, Fish said he fired two warning shots to halt Kuenzli's two dogs as they ran toward him and then shot the victim three times as he advanced.
A Coconino County Medical Examiner report compiled just after the shooting concluded Kuenzli was almost on top of Fish when the shots were fired.
"All three wounds appear to be at very close range, approximately one foot away from the shooter," it states
Toxicology tests on Kuenzli show positive for the antidepressants Desmethylvenlafaxine and Venlafaxine but negative for all other drugs except caffeine.
McDonald said the evidence he wants admitted into court would show that Kuenzli had a history of unstable behavior, especially when it involved dogs.
The defense attorney also wants Pitt's evaluation of Kuenzli's behavior and mental state admitted.
After interviewing several witnesses who had run-ins with Kuenzli, Pitt concluded he was unstable and had trouble controlling his emotions.
Some who knew Kuenzli in Payson say that is nonsense; Kuenzli was a kind man not prone to violence.
He was known locally for his work with Paws in the Park and the Payson Humane Society.
Mental health records of Kuenzli show Feb. 9, 2004 he referred himself to Southwest Behavioral Health Services, checking depression, anxiety and suicidal/homicidal thoughts as reasons.
When asked if he had been thinking of hurting himself or others, he checked "no," but when asked if he had tried to hurt himself or others in the past he checked "yes" and wrote, "last year suicide attempt."
Kuenzli was undergoing therapy and had been prescribed Effexor -- a drug used to treat depression, generalized anxiety disorder and social anxiety disorder.
Records show Kuenzli had also received psychiatric counseling while living in Mesa.
While in the Rim Country, Kuenzli mostly camped out and lived out of his car.
His counselor reported that he did so because he "sleeps better outside."
But in an April 2004 assessment of Kuenzli, a counselor wrote, "his situation discourages him, still camping in the woods."
He also is described as cooperative and alert and with "fair" insight and judgment.