NOGALES, Ariz.—A 73-year-old Arizona man will go on trial for the alleged second-degree murder of an illegal immigrant on his ranch property in January.
Justice of the Peace Emilio Velasquez determined at an evidentiary hearing in Nogales Justice Court on Feb. 24 that there was probable cause against George Alan Kelly to proceed to a trial in Superior Court.
Police initially charged Kelly with first-degree murder in the Jan. 30 shooting death of 43-year-old Mexican national Gabriel Cuen-Butimea, based mainly on inconsistent statements that Kelly made during an interview.
The incident allegedly occurred on Kelly’s ranch located near Nogales, a city of 20,837 in Arizona’s Santa Cruz County.
During the Feb. 24 court hearing, the prosecution announced that Kelly would face a reduced charge of second-degree murder, which doesn’t require proof that the alleged crime was premeditated.
Prosecutors didn’t elaborate on the downgraded felony charge. Kelly faces two additional charges of aggravated assault with a deadly weapon.
Kelly’s attorney, Brenna Larkin, asked the judge to grant a continuance since the state’s case had “changed drastically” with new disclosures, requiring time for her to prepare a response.
“In my experience, it is routine to grant continuances,” Larkin said. “Mr. Kelly should not be treated any differently.”
“Frankly, I am amazed at the state’s opposition [to a request for a continuance],” she said.
The judge denied the defense’s motion and the hearing moved forward to determine whether there was sufficient evidence that Kelly committed second-degree murder.
Kelly, wearing a blue long-sleeved shirt and a vest, was present in the courtroom at the Feb. 24 hearing. He remains free after posting a $1 million surety bond on his property.
Murder or Self-Defense?
The defense says that Kelly and his wife were having lunch in their kitchen when they heard a single gunshot at about 2 p.m. on Jan. 30.
In court documents, Kelly told police that he went out onto his porch and saw a horse running in his direction and then a group of 10 to 15 men in camouflage clothing, wearing backpacks, and armed with AK-47 assault rifles.
Kelly claimed he fired multiple warning shots from his AK-47 over the heads of the men when they pointed their weapons at him. The men then scattered and ran off his property.
During the alleged confrontation, Kelly called a U.S. Customs and Border Patrol liaison on his cell phone to report the incident.
An initial search of his property by Border Patrol agents and sheriff’s deputies failed to locate any of the men or the deceased.
Later in the day, Kelly texted the Border Patrol liaison and left a voice message saying the matter was “worse than he could imagine” and that he “might have shot at something.”
Kelly reportedly told police he discovered the body of a man after he went to check on his horses around 5 p.m. that day and used a flashlight to mark the location of the body.
A second search of the property found Cuen-Butimea lying face down with a single gunshot wound in his back.
Police were issued a warrant to search Kelly’s house; during a second search, they discovered Kelly’s AK-47, ammunition, and at least eight shell casings on and around his porch.
During the defense cross-examination of a Santa Cruz County detective, Larkin alluded to a federal agent who described the location near Kelly’s ranch as a “high crime area” used for drug trafficking and criminals who steal drugs from the cartels.
The detective testified that during an interview, he told Kelly it was time to “come forward with the truth” and that the charge of first-degree murder rested largely on Kelly making “inconsistent statements.”
“I arrested him based on the totality of the circumstances,” the detective testified.
Prosecutors called a man identified only by the initials D.R.R., who testified that he was with Cuen-Butimea on Jan. 30 when Kelly allegedly started shooting at the group.
The witness, wearing a blue hoodie and medical mask to conceal his identity, testified using a Spanish interpreter.
“[The group was] walking when this gentleman shot at us,” the witness testified. “I saw Gabriel hold his chest.”
He added that then, Cuen-Butimea rolled his eyes and fell to the ground sideways.
“I ran. I couldn’t help him.”
The witness testified that the gunshots, about 15 in total, sounded like rounds from an AK-47 rifle. He said he thought “the government” had shot at him as the group fled back across the border fence and into Mexico.
Witness Testimony ‘Not Credible’
Before the judge’s ruling on probable cause, Larkin said there was “no reason” to believe the “absolutely incredible” testimony of the witness and said that police found no shell casings in the quantity matching the witness description.
“It’s not conceivable that Mr. Kelly aimed from his porch, somehow saw this person, and made this long, difficult shot,” she said.
“Obviously, there is a dead body here,” she added. “There needs to be probable cause that this crime took place [and that] this specific person committed this crime.”
Larkin asked the judge to “do the right thing” and find no probable cause in the case.
In the meantime, a fundraising campaign on GiveSendGo had raised $344,460 toward Kelly’s legal defense.
Shannon Pritchard, who created the campaign, wrote that the original goal was $250,000, calling the amount raised “astounding, miraculous, a blessing to the Kelly family beyond belief.”
“It is a tragedy that a simple farmer, who should be protected by the government has been abandoned and had to defend himself. That is bad enough, but the government that caused this, now wishes to persecute him,” Pritchard wrote.
A Change.org petition that urges the charges against Kelly be dropped collected 11,526 signatures, toward a goal of 15,000.
At a House Judiciary Committee hearing on the border crisis in Yuma, Arizona, on Feb. 23, Pinal County Sheriff Mark Lamb said he thought the $1 million bond set for Kelly was “a little excessive” based on what he has seen.
“Just from what I’ve seen, it seemed a little excessive for a guy who doesn’t have a criminal history and claiming self-defense and is claiming he didn’t even shoot him.”
Lamb told The Epoch Times that a first-degree murder charge seemed unusual for the case, given the evidence presented.
“I heard the term premeditated. Premeditated first-degree is pretty hard to prove. From what I’ve heard, it’s going to be tough. But I don’t know the case.”
Santa Cruz County Chief Sheriff’s Deputy Geraldo Castillo told The Epoch Times that the department has “not investigated a crime of this magnitude [previously] involving a migrant and a rancher.”
“The investigation continues. There’s a lot still ongoing. I will not be able to comment at this time,” Castillo said.
While prosecutors argued that Kelly shot Cuen-Butimea without provocation, Larkin said the case has been “highly political” from the start.
“This essentially lit a match over an incredibly intense political powder keg and, predictably, there was an explosion,” Larkin said at a court hearing on Feb. 22.
Kelly declined to comment to The Epoch Times at the probable cause hearing on Feb. 24.
From The Epoch Times
