Arizona appeals court sides with prosecutors in Nogales rancher murder case
An Arizona Court of Appeals has ruled in favor of state prosecutors in the murder case of the Nogales-area rancher accused of shooting and killing a Mexican citizen in January.
The Arizona Court of Appeals Division Two sided with Kimberly Hunley, chief deputy Santa Cruz County attorney, in both special action requests she made to the court in August.
The appeals court vacated Santa Cruz County Superior Court Judge Thomas Fink’s order that denied the prosecution from further deposing defendant George Alan Kelly’s wife, Wanda. The court also directed Fink to reconsider Hunley’s request to admit Kelly’s inflammatory text messages into trial.
The appeals court offered no opinion on how the trial court should rule on the admissibility of any texts.
The decision was handed down on Nov. 7.
Hunley is the lead prosecutor in the case against Kelly, 75, who is accused of killing Gabriel Cuen Buitimea on Jan. 30 when Buitimea was walking through Kelly’s nearly 170-acre Kino Springs property.
Kelly is facing one count each of second-degree murder and aggravated assault.
Appeals court hearing: Prosecutors argue to include inflammatory texts in Nogales rancher murder trial
Court clears way for further deposition of Wanda Kelly
On the day of the shooting, Wanda Kelly made voluntary statements to Santa Cruz County Sheriff’s Office detectives. During a subsequent deposition, Wanda Kelly testified about statements that Kelly made to her but refused to answer questions about what her husband told her about what happened on the day of the incident.
Kelly’s attorneys argued that the conversations between Wanda Kelly and her husband were privileged under spousal privilege, which protects spouses from being forced to testify against each other in a criminal case.
Prosecutors asked Fink to rule that spousal privilege did not apply to Wanda Kelly, given that she had already given voluntary statements to detectives and thus waived her privilege.
During a September appeals court hearing, Hunley claimed that Wanda Kelly used a “sword-and-shield” tactic in her conversations with detectives. She answered questions that were beneficial to her husband but refused to answer ones that were not, Hunley argued.
George Alan Kelly case refresher: Here's what you missed in the murder trial of Nogales-area rancher George Alan Kelly
Fink ruled that marital privilege did not apply to any pre-arrest conversations between Wanda Kelly and her husband, given that she gave voluntary statements to investigators. However, Fink concluded, any conversations after Kelly’s arrest remained protected by spousal privilege.
Hunley asked the appeals court to review Fink’s decision. The appeals court agreed with Hunley and determined that Fink was mistaken in concluding that Wanda Kelly’s post-arrest conversations with her husband were still privileged.
The privilege no longer applied once Wanda Kelly made voluntary statements to detectives, even if her husband was subsequently arrested, the court found.
Appeals court remands text message question to lower court
Prosecutors argued to include incendiary text messages that Kelly sent to his son, a U.S. Border Patrol agent and a couple friends as evidence in the jury trial.
Kelly said in text messages that he put 27 migrants in the ground where they were “growing daisies,” and claimed he dealt with 33 migrants with his AK-47, which was “hot!,” court documents show.
Hunley argued that the texts showed Kelly’s motive for the alleged crime and displayed his animosity toward migrants. Kelly’s attorney chalked the messages up to “off-color” comments and “guy talk” between friends while characterizing the texts as “intentionally outrageous.”
In August, Fink ruled to exclude all of the texts from trial because the jurors would give “undue weight” to the messages and draw strong opinions about Kelly. Fink described the messages as informal and a very “off-hand” manner of communication.
Hunley argued that Fink failed to consider the text messages individually and only ruled on them as a whole. The text messages were sent to different people on different days and represent distinct pieces of evidence, Hunley argued.
Inflammatory texts: Prosecutors compare Nogales rancher to Unabomber as his texts cite 'mowing down migrants'
The appeals court found that it was unclear if Fink applied the correct legal standard when excluding the messages. The court ruled to direct Fink to reconsider admitting the messages into trial.
The trial was set to start Sept. 6 but was vacated by the appeals court after Hunley requested a stay in the case.
A new trial date has not yet been set.
Have a news tip or story idea about the border and its communities? Contact the reporter at josecastaneda@arizonarepublic.com or connect with him on X, formerly known as Twitter, @joseicastaneda.
This article originally appeared on Arizona Republic: Appeals court sides with prosecutors in George Alan Kelly murder case
