The defense attorney for a 74-year-old Arizona rancher accused of fatally shooting an unarmed illegal immigrant trespasser lost her bid on March 6 for a 60-day delay in setting her client’s trial date.
Brenna Larkin argued for the continuance so that the court would have time to review the ruling of a lower court that found probable cause in the second-degree murder case of defendant George Alan Kelly.
“We do have experts that we’ve engaged. We hope to get forensic evidence looked at in this case hopefully fairly soon,” Larkin told Santa Cruz County Superior Court Judge Thomas Fink.
“There is some extensive investigation the defense has gotten to accomplish in this case.”
Larkin said she learned that authorities executed a third search warrant of Kelly’s property on March 6, and the findings of that search were as yet unknown.
For that reason, the case required a continuance, she said.
“So the state is continuing to collect evidence to continue an investigation. We need disclosure of the results of all of that stuff,” Larkin said.
However, Fink held to his original decision to begin the trial on Sept. 6 and to keep to that date “at the present time.”
“If extenuating circumstances during the proceedings and a continuance is needed, file a motion, and the state will have a chance to respond to the motion,” he said.
Kelly, who owns a border ranch in Santa Cruz County, pleaded not guilty to second-degree murder at his arraignment in Santa Cruz County Superior Court on March 6.
He initially faced a charge of first-degree murder in the shooting death of Mexican national Gabriel Cuen-Buitimea, 43, who was found dead on Kelly’s property hours after a Jan. 30 run-in with a group of illegal immigrants dressed in camouflage.
‘Numerous Armed Men’
In late February, a Nogales justice of the peace ruled that there was probable cause for Kelly to stand trial for second-degree murder and aggravated assault with a deadly weapon.Kelly remains free after posting a $1 million surety bond on his property.
In a motion for review of probable cause, the defense argued that on Jan. 30, Kelly and his wife were having lunch when he heard a shot fired and saw his horse running.
The couple claimed “numerous armed men” were carrying rifles and large backpacks and “running through the trees.”
According to the motion, Kelly told his wife to be quiet as he called the U.S. Customs and Border Protection ranch liaison for help.
“Mr. Kelly went to his back porch with his [AK-47] rifle to deter the drug traffickers from approaching his house,” the motion reads. “[He] fired warning shots over the heads of armed drug traffickers” on his property.
Shot ‘Well Over’ Heads
The defense motion states that Kelly shot “well over” the heads of the trespassers and that he “did not shoot anybody during the incident.”“The group of traffickers ran away through the desert, and Mr. Kelly called the ranch liaison again for assistance,” it reads.
The motion concedes that Kelly made an “inconsistent” statement when interviewed by authorities that the men had firearms.
Sheriff’s deputies and Border Patrol agents failed to locate the men during the first search of Kelly’s property.
A second search of Kelly’s property revealed Kelly’s AK-47, ammunition, and eight spent shell casings on and around the porch.
Later in the day, Kelly walked to his pasture to check on his horse. His dogs then located the body of a man lying face down near a mesquite tree about 100 yards from Kelly’s house.
Political Climate on Border ‘Volatile’
Law enforcement later identified the man as Cuen-Buitimea, an illegal immigrant who reportedly made several previous border crossings into the United States.The prosecution argued that Kelly, who’s white, confronted a group of unarmed men on his property and began shooting at them, striking Cuen-Buitimea and killing him.
A male witness testified at Kelly’s probable cause hearing on Feb. 24 that he saw Kelly shoot Cuen-Buitimea and that Cuen-Buitimea clutched his chest and fell to the ground.
“Without doing any real forensic investigation, law enforcement decided to arrest Mr. Kelly and charge him with first-degree premeditated murder,” the defense motion reads.
Mexico Intervenes
The Mexican government believes that Kelly should stand trial for first-degree murder, which carries a potential death sentence in Arizona. Mexican diplomat Vanessa Calva said Mexican officials told U.S. prosecutors that the circumstances regarding Cuen-Buitimea’s manner of death appear premeditated.In the meantime, several people “claiming to be witnesses” have come forward in the case, according to the defense motion.
“The more likely conclusion was that [Cuen-Buitimea] was shot by someone else while Mr. Kelly was eating lunch, and Mr. Kelly heard the fatal shot before seeing the armed traffickers running through the trees,” it reads.
