A Santa Cruz County rancher being arraigned Monday for second degree murder in the death of a suspected Cartel guide for undocumented border crossers has asked a judge for a new hearing on whether there is really probable cause to support the prosecution.
George Alan Kelly was arrested Jan. 30 and charged with premeditated first degree murder after he reported finding the body of Gabriel Cuen-Buitimea about 100 yards from Kelly’s home. Just hours earlier, Kelly had called the U.S. Border Patrol to report hearing shots fired and seeing armed men on his property carrying large backpacks.
Cuen-Buitimea was found with a camouflaged backpack and a two-way radio. He had been shot in the back with the bullet going through his body. The bullet has not been recovered, according to court documents.
Formal charges were filed by the Santa Cruz County Attorney’s Office on Feb. 2, with Kelly facing just one count – premeditated first degree murder, which is a Class 1 felony that can lead to the death penalty. Eventually two counts of aggravated assault against two men who claim they were with Cuen-Buitimea when he was shot were added.
A Feb. 24 preliminary hearing resulted in Justice of the Peace Emilio Velasquez
ruling there is probable cause to pursue a second degree murder charge without premeditation as well as two counts of aggravated assault.
But Brenna Larkin, who is representing Kelly, argues in a motion filed Friday that Velasquez was presented inaccurate testimony about Kelly’s actions on Jan. 30 in firing “warning shots” above the heads of what he and his wife described as “drug runners” on their property within sight of their home.
The motion asked for a new hearing whether the State has probable cause to prosecute Kelly, 74, in light of the evidence and Kelly’s efforts to protect himself in a high trafficked smuggling area. Probable cause, unlike proof beyond reasonable doubt, only requires a showing that a “reasonable person” would believe that a specific person had committed a specific crime.
In the motion, Larkin cites credibility issues with two “highly suspicious” eyewitness statements obtained by law enforcement after Kelly’s arrest made national headlines. It also accuses investigators of rushing to judgment about what happened on Kelly’s property and of misrepresenting Kelly’s statements about the shooting.
More than a dozen reports were written by various law enforcement officials about the Jan. 30 response. Although Kelly continuously denied shooting at anybody, detectives “decided early on that Mr. Kelly was guilty, and did whatever they could in order to confirm their own conclusions,” Larkin argues.
This especially included law enforcement officials who claimed Kelly shooting “at” a person was the same thing as Kelly shooting “over” a person.
“Mr. Kelly never admitted that he shot at any person. Nevertheless, law enforcement conflated these terms, and claimed in their statement of the offense that Mr. Kelly had admitted to shooting ‘at’ numerous subjects,” the motion argues.
Jan. 30 was not the first time Kelly has had contact with USBP in the last few years concerning illegal border crossings on his property in the Kino Springs area east of Nogales, about two miles from the border.
Numerous reports were made by Kelly and his neighbors the last two years, and like many ranchers Kelly reportedly provided keys to his gate so USBP agents could have easy access to investigate illegal activity.
His troubles on Jan. 30 started shortly after 2:30 p.m. when Kelly called a U.S. Border Patrol Ranch Liaison after he and his wife heard several shots. Kelly advised that one shot appeared to be in the direction of their house and was close enough to spook Kelly’s horse.
“Mr. Kelly went to his back porch with his rifle in order to deter the drug traffickers from approaching his house,” the motion states. “One of the members of the group pointed a rifle at Mr. Kelly, and Mr. Kelly responded by firing several warning shots over the heads of the group.”
The motion contends Kelly’s shots were fired “well over the heads” of the people on his property and that he did not shoot anybody.
USBP agents and Santa Cruz County sheriff’s deputies responded but left without finding anything. One deputy told Kelly that if smugglers returned he should “remain in his house and call 9-1-1,” according to public documents.
Kelly called back to the USBP Ranch Liaison around 6 p.m. to report finding the body later identified as Cuen-Buitimea, 48, a resident of Nogales, Sonora who had multiple conviction in U.S. federal court for illegal entry which resulted in numerous deportations.
The defense attorney contends that upon the second response to Kelly’s property, his comments to various law enforcement officers got conflated and led the justice of the peace to hear testimony that Kelly’s statements were “all over the place” and that he had changed his story about firing warning shots.
According to the USBP Ranch Liaison, Kelly stated during the second call that the people he saw earlier in the day were too far away to tell if they were armed. This, the liaison said, was inconsistent with his previous report that these men were armed.
But when the liaison relayed the call to dispatcher, he noted only that Kelly said he could not tell whether the shots were fired close by or in the distance.
“The Ranch Liaison did not report to the Border Patrol dispatcher that Mr. Kelly stated the men were too far away to tell whether they were armed or not,” the motion states. “In all other statements to law enforcement, Mr. Kelly consistently stated that the men were armed with rifles and carrying large backpacks.”
And while every detail of Kelly’s various statements to investigators were scrutinized, Larkin argues the statements from two men who claim to have been with Cuen-Buitimea at the time of the shooting were accepted at face value by Deputy County Attorney Kimberly Hunley even though they contradict each other and contradict the physical evidence.
One purported eyewitness, identified as R.A.F.G., was arrested by USBP near Sonoita for alien smuggling on Feb. 8, more than a week after Cuen-Buitimea’s body was discovered.
“He claimed that Mr. Kelly just randomly started shooting at a group of unarmed migrants without warning,” the motion states. “He claimed that Gabriel was the
guide for the group, that he had approached the house to get water, and that Mr. Kelly shot him at close range with a rifle” near a gazebo.
R.A.F.G. also claimed Kelly shot a horse and that there was a white sedan at the house.
A second person, identified as D.R.R., was purportedly approached by Cuen-Buitimea’s family in Nogales, Sonora, where he ended up being interviewed by Sheriff David Hathaway.
“This witness was apparently interviewed for approximately 40 minutes, but only 6 minutes of that interview were recorded,” the motion states.
D.R.R. told Hathaway and a SCCSO detective that the shooting involved 15 or 16 rounds being fired from an AK-47 near a road used by USBP and that there was no house in the area, which the witness placed far from Kelly’s ranch. In addition, he claimed Cuen-Buitimea was not a smuggler and was not carrying a radio.
“While the State admits that the witness statements are not consistent with each other or with the physical evidence, the State dismisses the inconsistencies as simply being the result of the witnesses experiencing a traumatic event,” according to the motion. “The State also suggests that these witnesses are too ‘uneducated’ to accurately recall events, but that their statements should be believed regardless.”
The motion for a new probable cause determination also alleged Velasquez, the justice of the peace, violated Kelly’s due process by refusing to delay the preliminary hearing.
Court records show the Feb. 24 hearing was announced on Feb. 22. That prevented the defense from having time to obtain expert opinions about the forensic evidence in this case. It also meant Larkin only had one day to review evidence Hunley shared on Feb. 23, including the first time the defense had access to D.R.R.’s interview.
More importantly, according to the motion, is that Hunley dropped the premeditated first degree murder charge just before the preliminary hearing. This meant the charge of second degree murder by recklessly causing Cuen-Buitimea’s death without premeditation was “an entirely different theory of the case,” Larkin argues.
Yet the justice of the peace again denied a request for a continuance.
“The defense had prepared to cross examine witnesses and present a defense based on the original first degree murder charge,” the motion argues. “Changing the charge at the last moment prejudiced the defense because the defense was not afforded adequate notice of the charge to be defended against. This lack of notice deprived Mr. Kelly of his basic right to due process.”
Kelly was finally able to be released from custody pending trial after his $1 million cash only bail was changed to a $1 million surety bond, which allows property or other assets to be used as collateral.
Judge Thomas Fink of the Santa Cruz County Superior Court will consider the probable cause motion once the State files a response later this month.
Kelly CR Motion new PC