: JP 1201 FEBZ2"23 8:56 GEORGE E, SILVA SANTA CRUZ COUNTY ATTORNEY Santa Cruz County Complex 2150 N. Congress Dr., Suite 201 Nogales, AZ 85621 520-375-7780 Kimberly Hunley, Chief Deputy County Attorney: State Bar No. 019141 IN THE SANTA CRUZ COUNTY JUSTICE COURT IN AND FOR THE STATE OF ARIZONA. THE STATE OF ARIZONA, Case No. CF2023-041 ' Plaintiff, AMENDED OPPOSITION TO MOTION TO = : MODIFY RELEASE CONDITIONS GEORGE'|ALAN KELLY, Assigned to: Hon. Emilio Velasquez Defendant. COMES NOW the State of Arizona, by and through GEORGE E. SILVA, COUNTY ATTORNEY, and his undersigned Chief Deputy County Attorney, and hereby opposes modification of the Defendant's release conditions. The State's request is based on the factors outlined in A.R.S. Const. Art. Il, § 22 (held unconstitutional on other grounds by State v. Wein, 244 Atiz. 22, 417 P.3d 787 (2018) as to § 22(A)(1)), AR.S. § 13-3967 and Rule 7.2, 7.3 AND Rule 7.4, ARIZ. R. CRIM. PRO. The State believes the bail imposed by the Court is appropriate in this case. The reasons fo ‘this Opposition is more fully set out in the attached Memorandum of Points and Authorities. ‘The State further requests pursuant to Rule 7.3(c), that the Court order no contact with ‘the deceased victim's representatives, J.R., Y.C. and D.C., and also two additional victims of Shatev. George Alan Kelly etAggravated Assault with a Deadly Weapon, R-F-G. and D.R-R. MEMORANDUM OF POINTS AND AUTHORITIES FACTS: Many details of the investigation and the victims’ statements are being withheld at this time because the investigation is on-going and witnesses are still being interviewed. Furthermore, the Court, the County Attorney's Office and the Sheriff's Department have all received disturbing communications, some threatening in nature, that seem to indicate an on- going threat to the safety of the victims. Kelly is charged with one count of First Degree Murder and two counts of Aggravated Assault with a Deadly Weapon involving three separate victims. To date, two victims, R.F-G. and D.R-R., have come forward to report what happened during the murder of victim G.C. (‘Gabrie). The victims report the following. On January 30, 2023, at around 2:30 p.m., a group of approximately 7 to 8 undocumented immigrants were traveling north through the Kino Springs area from Mexico. Contrary to Kelly's account, no one in the group was carrying any weapons. The! group, which included R.F-G, and D.R-R., was within sight of the Kelly residence !when, out of nowhere, Kelly began to shoot at them with an AK-47. Kelly issued no warnings and made no requests. He just started shooting at them. D.R-R. was just one step behind Gabriel when he heard Gabriel call out in Spanish, “I'm hit,” grab his chest, and fall to the ground. He saw Gabriel's eyes roll back in his head and, when he could only see the whites of Gabriel's eyes, he knew that Gabriel was dead. He fet like they were being hunted the way the shooter caine out ofthe brush. Both R.F-G. and D.R-R. continued to run away from the shooter, south towards Mexico, [State v. George Alan Kelly ease20 24 22 23 24 Kelly shot at least 8 rounds at them, without warming and unprovoked, while they fled for their lives, unarmed and unable to defend themselves. The group all ran back south towards Mexico, R.F-G. and D.R-R. both jumped the fence and made it back into Mexico. Both RF-G, and D.R-R, are willing and available to testify. Kelly provided conflicting information to police. When the incident first began, instead of calling 911, he called the Border Patrol Ranch Liaison, Agent Morsell, on his cell phone at around 2:30 p.m.. He told Agent Morsell, “'m being shot at and I'm shooting back.”’ He said he couldn't talk and that they were headed southbound. Approximately 6 minutes later, Kelly called Agent Morsell again. This time Kelly said he lost visual of the subjects running toward Kino Springs. When Agent Morsell asked if he was being shot at, Kelly claimed he heard a gunshot in his direction. He saw his‘horse running by and he was inspecting his horse but he didn't appear to be struck. Kelly said it was "too far to {ell if they had any firearms.” Border Patrol Agents and the Sheriff's Deputies responded to the scene and walked the property near the house. They did not locate anything at that time. Kelly called Agent Morsell again at approximately 4:23 p.m. By this time, his story had significantly changed, He told Agent Morsell that he was sitting in the house with his wife, when "we" heard a gunshot and Kelly went out on his porch and saw his horse running by. He said he saw 10'subjects all loaded down with AR Assault rifles. He said his wife, Wanda, saw it too. He then claimed it was 10 to 15 subjects, ‘Then, at 6:23 p.m., Kelly tried calling Agent Morsell again. He left a voice message saying, "You need to call me immediately. This is serious. Call me immediately. | can't say > Official transcripts are pending, Quotes cited in this Opposition are unofficial. ‘State v George Alan Kelly Page 319 20 24 22 24 26 more over the phone.” Agel Morsell retumed his call at approximately 5:35 p.m. At this point, Kelly's tone had completely changed from the earlier calls. He sounded nervous or scared. Kelly said, "This is worse than you can imagine.” “This is bad.” Kelly told him that he needed Morsell to send the Border Patrol because this is a border related issue. When Morsell requested details, Kelly continued to be evasive and said, “This is bad. | need someone to respond out here.” Then Kelly fold him, “You know how shots were fired earlier, something was possibly shot. | can't say more over the phone." Kelly then asked Morsell if this is being reported. Agent Morsell responded that everything is being reported. The Sheriffs Department received tho cal 911 at approximately 6:56 pm. The Sheriff's Department responded to Kelly's residence and met with him. One of the deputies ‘turned on the recorder on his phone while they talked and walked with Kelly. Kelly told him that ‘there was a shot fired and he didn't know what it was about. He went out to get his horse. He said he ‘walked all over it’ and claimed "maybe this happened after you left,” referring to the earlier visit by deputies. He said, “There's a body right over there. As soon as | saw it | backed away from it” Kelly said he has no way of being a judge of this but claimed the deceased was a mule —he was a drug runner. Kelly sald the deceased had a small pack on his back. He said, “As you know, we saw 5-10 drug runners coming through with large backpacks. He’s in camo. He's. a drug runner.” He said that as soon as he found him, he called border patrol. He claimed he didn't know how to call the Sheriffs Department. He Said he didn’t know what happened to the victim. He then told deputies, “If you were me, you got no idea. You know what I'm si ing. He then said, “You will not need an EMT but you will need a coroner. Wife says they Beate v. George Alan Kelly Page 419 20 24 22 23 24 28 walked all over there. It could be the body could have expired after you all were here. There's stuff running around all over this place all the time.” After deputies located the body, Sgt. Omar Rodriguez began talking with Kelly. Kelly told deputies that he left a flashlight in the tree near the body so they could find it, As they were walking toward the location of Gabriel's deceased body, Kelly told deputies that “rigor’ was starting to set in. Once they arrived at the body, Kelly asked deputies ift was blood on the body. This was inconsistent with his comments about “rigor” setting in, Sgt. Rodriguez checked the body and determined Gabrie! was deceased and rigor was, in fact, setting in. Kelly then mentioned that he had a medical background and that he knew the person was dead. Kelly also mentioned the bullet “going through the lung and heart.” Sgt. Rodriguez then examined the body, which was initially face down, and observed the location of the entry wound was on Gabriel's backtight upper torso and the exit wound appeared to be higher on his body through the center of his chest, Sgt. Rodriguez could not see the exit wound until he repositioned Gabriel's body. However, Kelly's observation that the projectile went through Gabriel's lung and heart was consistent with Sgt. Rodriguez’ examination of the wounds (after repositioning the body), and inconsistent with Kelly's earlier statement that as soon as he saw the body he backed away. Latér, Kelly spoke with Detectives at the Sheriff's Department. After initially denying that he shot at the group, he later admitted shooting. He claimed he directed his shots over the heads of tHe group. LAW AND ANALYSIS: The rules governing conditions of release are codified at A.R.S. Const. Art. Il, § 22, State v. George Alan Relly Page 510 1" 2 3 14 15 16 7 18 19 20 24 22, 23 24 25 JARS. § 13-3967 and Rules 7.2, 7.3 and 7.4, Ariz. R. CRIM, PRO. The purposes of baill and conditions of release are set out in A.R.S. Const. Art. Il, § 22(B) as follows: 4, Asstiring the appearance of the accused. 2, Protecting against the intimidation of witnesses. 3, Protecting the safety of the victim, any other person or the community. Id. Those principles are mirrored in the Court's rules regarding release conditions found in Rule 7.2, Ariz. R. CRIM, PRO. Rule 7.2(a)(2) states as follows: Right to Release. Except as these rules otherwise provide, any defendant charged with an offense bailable as a matter of right must be released pending and during tral) lon the defendant's own recognizance with only the mandatory conditions of release required under Rule 7.3(a), unless the court determines that additional conditions are reasonably necessary to assure the defendant's appearance or protect the victim, any other person, or the community from risk of harm by the defendant. If the court makes such a determination, it must impose the least onerous conditions of release set forth in Rule 7.3(0). Ariz, R. Crim. P. 7.2(a)(2), emphasis added. Rule 7.3(0), Ariz. R, Crim. Pro., provides options for the Court regarding imposition of conditions of release and bail, It provides that the Court: 4. Must impose a no-contact order for victims when “such an order is reasonably necessary to protect a victim from physical harm, harassment, intimidation, or abuse;” and, 2. May impose a monetary bond, including a cash bond, after “an individualized determination of the defendant's risk of non-appearance, risk of harm to others or the tommunity, and the defendant's finanofal circumstances.” Rule 7.2(a)(3), also provides the Court the following direction regarding determining release and/or bond: “Determining Method of Release or Bond Amount. In determining the State v George Man Rely Page 60 "1 12 13 4 15 6 7 18 19 20 24 23 24 25 method of release or a bond amount, the court must take into account all of the factors set forth in ARS. § 13-3067(B).” ‘Those factors include the following: 1. The views of the victim. a. Victim Representatives for Gabri The victim representatives for victim Gabriel oppose release or a reduction in bond in this case. They are scared for their safety. They would like to participate in hearings and court proceedings but do not believe they will be safe in doing so. b. Victim D.R.-R.: Due to receiving information regarding this victim late, and the recent addition of new charges related to this victim, the State has not had adequate time to determine his position regarding release. The State It continues to make efforts to obtain his input. ¢. Victim R.F.-G.: Due to receiving information regarding this victim late, and the recent addition of new charges related to this victim, the State has not had adequate time to determine his position regarding release. The State continues to make efforts to obtain his input. The State has been in touch with family members of the victim and is awaiting a call back. 2. The nature and circumstances of the offense charged, See Facts. 3. Whether the accused has a prior arrest or conviction for a serious offense or violent or aggravated felony as defined in section 13-706 or an offense in another state that would be a serious offense or violent or aggravated felony as defined in section 13- 706 if committed in this state. N/A 4. Evidence that the accused poses a danger to others in the community. See Facts. Kelly shot an unarmed man in the back as he was fleeing, in addition to shooting at other individuals, without warning or provocation. While the individuals were passing through his very large approximately 170 acre property, they posed no threat to him or his family. Despite this, Kelly shot at them repeatedly with an AK.47, striking and killing one of them. This type of unprovoked attack presents a significant danger to the victims and the community. 5. The results of a risk or lethality assessment in a domestic violence charge that is presented to the court. N/A ~ this is not a domestic violence case. 6. The weight of evidence against the accused, ‘State v. Gearge Alan Kelly Page 710 " 12 13 4 5 16 7 18 19 20 a4 23 24 25 | State v: George Alan Kelly See Facts section above. Two eye-witnesses describe Kelly's unprovoked attack upon them and the decedent. 7. The accused's family ties, employment, financial resources, character and mental condition. Keliy is married and his wife is also a local resident. They are local ranchers, who own an extensive property in the Kino Springs area. 8. The results of any drug test submitted to the court. NIA 9. Whether the accused Is using any substance if its possession or use |s illegal pursuant! to chapter 34 of this title, NIA 10. Whether the accused violated section 13-3407, subsection A, paragraph 2, 3, 4 or 7 invdlving methamphetamine or section 13-3407.01. NIA 11. The length of residence in the community. Kelly is a long-term resident of Arizona. 12. The accused's record of arrests and convictions. NIA \ 13. iThe accused's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. N/A 14, Whether the accused has entered or remained in the United States illegally. N/A 15. Whether the accused's residence is in this state, in another state or outside the United States. The residence of the accused is in the Kino Springs area of Santa Cruz County, Arizona. STATE’ POSITION: Itis, ite State's position that the Court has imposed an appropriate bond in this case of $1 million Gash. Kelly shot and killed an unarmed man in the back. He did so with no warming and no apparent provocation. At least two others were in the line of his fire but were thankfully not hit, although not unharmed. (D.R-R. indicates that he is having nightmares and difficulty sleeping due to flashbacks from being shot at and watching Gabriel die.) Page 820 24 23 24 While Kelly is 73 years old, he continues to pose a risk to the community. His apparent disregard for the sanctity of human life poses an immediate and on-going risk to the community, and potentially to the victims in this case. Neary any sentence imposed by the Court for these charges may result in a life sentence in prison for Kelly due to his age. He has significant incentive to flee and significant resources fo do so. CONCLUSION: Based on all these factors, its the State's position that Kell isa significant risk for fight and an of-going danger to the community and the victins. The State respectfully requests that Kelly's bond remain the same. The State also asks that the Court impose a no contact order, purouant to Rule 7.9(¢), Ariz. R. im. Pro, forthe deceased vil’ representatives, JR., D.C. and Y.C.| as well as the other two vietims in this case: R.F-G. and D.R-R, RESPECTFULLY SUBMITTED THIS 22% day of February, 2023. GEORGE E. SILVA ‘SANTA CRUZ COUNTY ATTORNEY By _Kimllorly J. Hunley Kimberly Hunley CHIEF DEPUTY COUNTY ATTORNEY Original lof the foregoing filed {this 22" day of February, 2023: Santa Cruz County Justice Court Copy ernailed this 22 day of February, 2023, to: Brenna Larkin, Esq. brennalarkinattorne Counsel for Kelly ‘State v: George Alan Kelly ree