SANTA CRUZ COUNTY, Ariz. (Court TV) — A mistrial has been declared in the trial of a 75-year-old rancher accused of fatally shooting a Mexican citizen who was found dead on his nearly 100-acre ranch just outside the U.S.-Mexico border.
On Monday, Judge Thomas Fink accepted the jury’s second impasse and declared a mistrial in the case against George Alan Kelly. It will be up to the Santa Cruz County Attorney to decide if Kelly will face a new trial in the case.
FILE – George Alan Kelly exits the Santa Cruz County Courthouse with defense attorney Kathy Lowthorp after the first day of his trial in Santa Cruz County Superior Court Friday, March 22, 2024 in Nogales, Ariz. (Angela Gervasi/Nogales International, via AP, File)
Kelly was charged with second-degree murder and two counts of aggravated assault for the shooting death of 48-year-old Gabriel Cuen-Buitimea, a migrant from Nogales, Mexico, on Jan. 30, 2023.
Prosecutors accused Kelly of ambushing Cuen-Buitimea, who was unarmed and headed away from Kelly’s residence with a group of migrants. The County Attorney’s Office also accused Kelly of prejudicial malice, pointing to text messages that they say demonstrate his “propensity for violence toward the victim’s race, ethnicity, national origin and/or immigration status.”
Defense attorneys argued Kelly was protecting himself, his wife Wanda Kelly and his home by firing shots into the air above the migrants. They said Kelly had seen people with rifles and backpacks passing through his Kino Springs property.
The defense said it wasn’t until hours later when Kelly went to check on his horse and dogs, that he discovered a body about 100 yards away from his house near a mesquite tree on his property. Kelly called the Border Patrol Ranch Liaison to return to his property and told them that “something was possibly struck earlier.”
Eventually, Kelly was handcuffed, placed in a patrol car, and taken to the Sheriff’s department for questioning. There, he was mirandized and provided a statement. The defense has called Kelly’s arrest “illegal” and argued to suppress his statements and all evidence gathered from them.
Kelly’s wife, Wanda Kelly, gave two depositions at the Santa Cruz County Attorney’s office on July 6, 2023, and Feb. 15, 2024, during which she told investigators about other instances when armed individuals traveled onto their property, which led her husband to start carrying an AK-47 while patrolling their property.
DAILY TRIAL HIGHLIGHTS
DAY 17 – 4/22/24
- After the jury failed to agree whether Kelly was guilty or not guilty in the shooting death of a Mexican National Crossing his ranch, Judge Thomas Fink declared a mistrial in the case.
- The Santa Cruz County Attorney will decide if George Alan Kelly will face a new trial in the case.
- READ MORE: MISTRIAL: Jury does not reach verdict in George Alan Kelly trial
- WATCH: AZ v. George Alan Kelly: Border Migrant Murder Trial Ends in Mistrial
DAY 16 – 4/19/24
- Jurors deliberated for 7.5 hours on Friday for a total of 8 hours and 45 minutes over two days without reaching a verdict.
- At about 2:00pm local time the 8-person jury declared they were at an impasse, but the judge asked them to continue deliberating and gave them the option of breaking early for the day.
- They requested police reports about 30 minutes after they were asked to resume deliberations and were advised that they had all the evidence they needed.
- Jurors will resume deliberations on Monday.
DAY 15 – 4/18/24
- The jury hears closing arguments
DAY 14 – 4/17/24
- The defense rested without Kelly testifying in his own defense.
- Throughout the trial, investigators have testified that Kelly’s story kept changing about the incident.
- A second degree murder charge does not ask jurors if someone meant to kill anyone. All that’s required for a conviction is to prove Kelly was reckless when he fired his rifle and that a man died as a result.
- READ MORE: Defense in rancher murder trial rests without George Alan Kelly taking stand
DAY 13 – 4/16/24
- The prosecution has rested its case in the second degree murder trial of George Alan Kelly.
- Kelly’s attorneys say he heard a shot, and fired a shot over the heads of a group of five men who had rifles and large backpacks. But the lead detective on the case says there’s no evidence of a five-person group, nor evidence that anyone other than Kelly fired a gun that day.
- Jorge Ainza, the lead detective, told Kelly’s attorney he believes Kelly deliberately pointed at the victim — and there is nothing to back up Lowthorp’s suggestion bandits are really the ones who shot Buitimea.
- “There is no other shot involved in this. The victim sustained a serious injury from a high powered rifle, an AK-47 rifle with a trajectory directly from Mr Kelly’s residence.”
- Investigators say they found nine shell casings outside Kelly’s house, in a pattern consistent with shots fired toward the dead man.
- There is no ballistics test to match the fatal bullet to Kelly’s gun. The bullet went through the victim and was never recovered.
- Defense attorney Kathy Lowthorp has suggested again and again that George Alan Kelly did not fire the shot that killed Gabriel Cuen-Buitimea. Lowthorp has suggested the victim was involved in smuggling and that other smugglers shot him to steal money, drugs or guns.
- Now that the prosecution has rested, Kelly’s lawyers are presenting their case. They have called David Hathaway, Santa Cruz County’s elected sheriff. Hathaway and one of his detectives went into Mexico to interview a witness who says he saw Gabriel Cuen-Buitimea shot and killed.
- Judge Thomas Fink expects final arguments in the case Thursday. That could allow jury deliberations to begin later that day.
- READ MORE: Defense begins its case in rancher’s murder trial
DAY 12 – 4/11/24
- Jurors visited George Alan Kelly’s ranch on Thursday in order to better understand distances, layouts and sight lines, which are important to the case.
- Judge Thomas Fink briefed the jurors on what to expect. The plan is to simply view 14 key locations but not discuss what they see among themselves, with the jurors being able to ask questions when they return to the courtroom.
- Judge Fink prodded attorneys to pick up the pace of the trial, with the trial expected to take three weeks—but three weeks have gone by with the prosecution still presenting its part of the case.
- The defense has been running prosecution witnesses through long cross examinations and Judge Fink said he will set limits on how long questioning can go, which Kelly’s attorney Brenna Larkin did not like, telling the judge “Limiting me to five minutes of cross examination violates Mr Kelly’s Constitutional rights.” Judge Fink replied: “You now have four minutes. Call the witness.”
- The defense says it expects to need about two days to present its side of the case. Kelly’s lawyers say they may or may not call Kelly as a witness to defend himself.
- Judge Fink now says he expects the case to go to the jury next Thursday.
- READ MORE: George Alan Kelly jurors leave courthouse, visit site of shooting
DAY 11 – 4/10/24
- Deputy Cristobal Castaneda testified that, “Ms. Kelly told me that she was sitting by… at the living room, and that she observed approximately five subjects running south, through the living room window.”
- Jurors in the case are scheduled to visit Kelly’s ranch on Thursday.
- READ MORE: Kelly trial continues with state calling back law enforcement witnesses
DAY 10 – 4/9/24
- Sheriff’s Sergeant Joseph Bunting talked about how he collected evidence at the scene. Looking at where the shell casings fell from Kelly’s gun, he concluded Kelly shot once, moved, and shot eight more times.
- Sergeant Bunting says he found nothing when he checked Kelly’s house for bullet holes that would show anyone fired towards Kelly.
- DPS Firearms specialist Aaron Brudenell said AK-47’s like Kelly’s fire ammunition less powerful than many hunting rifles. He said the wound is consistent with a bullet from an AK style of rifle but it produced irregular wounds as if the bullet had begun to wobble.
- He said, “If the projectile loses its stability for some reason, that bullet may not be pointed nose first when it impacts and it will have a different hole produced based on the part of the bullet it strikes and the profile as it hits.”
- READ MORE: Law enforcement testify about George Kelly’s rifle
4/8/24 | OUTSIDE THE PRESENCE OF THE JURY
- Attorneys for both sides asked Judge Thomas Fink to allow jurors to see the ranch for themselves. The ranch visit is tentatively set for Thursday afternoon. The media is not allowed to attend.
- READ MORE: Jurors to visit George Kelly’s property
DAY 9 – 4/5/24
- Sheriff’s Sergeant Omar Rodriguez took the stand for a second day of testimony.
- The defense questioned Rodriguez about his handling of the crime scene and he responded by explaining the procedures followed in obtaining a search warrant.
- Rodriguez clarified that he hadn’t instructed any deputies to arrest Kelly as a suspect.
- The prosecution honed in on a comment Kelly made to Rodriguez regarding rigor mortis, which, according to Rodriguez, “was a statement not commonly used by a civilian or a regular person that doesn’t work in law enforcement.” He said. “That made me think that if he knows that rigor has set in, he was already with the body.”
- READ MORE: Kelly trial continues with more witness testimony
DAY 8 – 4/4/24
- DNA experts found no DNA connection between rancher George Alan Kelly and the man he is accused of killing.
- Clothing on the victim showed that man’s DNA but also another weak sample on the shoulder of Cuen Buitimea’s jacket that cannot be matched to Kelly.
- DPS forensics specialist Heather Rivera-Reyes told the jury: “So when I do a comparison to the known profile for Mr George Kelly it’s inconclusive, again meaning there’s not enough information there to make an inclusion or an exclusion.”
- Sheriff’s Sergeant Omar Rodriguez testified he was the first deputy to reach the victim’s body and that he touched the man’s shoulder while lifting him to see if he might still be alive.
- Kelly’s wife, Wanda Kelly, completed her testimony. Part of her time on the stand involved questions about whether she gave investigators conflicting stories about the number of trespassers, and the number of shots her husband fired.
- READ MORE: DNA analysts testify in rancher’s murder trial
DAY 7 – 4/3/24
- Wanda Kelly, wife of defendant George Kelly, told the jury she had just finished lunch and her husband was making his when he told her he heard a gunshot.
- Wanda said she looked out their window and saw two men walking on their property wearing backpacks and carrying guns. She said George grabbed his AK-47 to fire warning shots.
- READ MORE: Wife testifies in rancher’s murder trial
DAY 6 – 4/2/24
- Deputy Christobal Castaneda, who involved in the first search, testified. The defense raised doubts about whether someone other than Kelly shot the victim after Kelly called law enforcement to his ranch
- Assistant Pima County Medical Examiner Doctor Krista Timm autopsied the victim for Santa Cruz County. She described how the bullet hit bones, went through a lung and punctured the main artery to the victim’s heart. But under questioning by Kelly’s attorney conceded she could not rule out that Cuen-Buitema could have been shot by a powerful handgun, instead of Kelly’s rifle
- READ MORE: Rancher’s murder trial – Was someone else the real killer?
DAY 5 – 3/29/24
- Only one witness appeared Friday – Rick Wyant, a forensic scientist with special expertise in firearms and ballistics. Notably, the bullet that killed Gabriel Cuen-Buitimea was never recovered, a fact which the defense seized on in cross-examination.
DAY 4 – 3/28/24
- The day’s testimony primarily consisted of testimony from deputies with the Santa Cruz Sheriff’s Office who responded to Kelly’s home on Jan. 30 to investigate his shots-fired report.
- WATCH: Agent Says George Kelly ‘Didn’t Look Like He Was Afraid’
DAY 3 – 3/27/24
- The jury heard testimony from Daniel Ramirez, who was with Gabriel Cuen-Buitimea at the time of the shooting.
DAY 2 – 3/26/24
- Arizona Dept. of Public Safety Trooper Oscar Reyna testified to drone imagery showing the line from the house to where the body was found.
- Reyna testified that the distance between the home’s patio and where the body was found was approximately 350 feet, covered by vegetation.
- On cross, Kelly’s attorney introduced a zoomed-in first-person view from the alleged location of the shooter, showing the limited visibility.
- The jury heard a voicemail Kelly left for Agent J. Morsell, a ranch liaison with the U.S. Border Patrol, saying to “call me immediately.”
- Call logs showed five phone calls and messages to Morsell on the day of the incident.
DAY 1 – 3/22/24
- Both sides delivered lengthy opening statements that presented starkly contrasting narratives of the victim and what happened.
- Prosecutor Kimberly Hunley said Kelly shot at Gabriel Cuen-Buitimea and Daniel Ramirez without warning or provocation from 115 yards away, then gave conflicting statements that exaggerated the threat they posed. In a call with a dispatcher, he called the victim an “animal.”
- WATCH: Border Migrant Murder Trial: George Kelly’s Views Come Into Question
- Hunley said Kelly had nothing to fear from them as they walked past his property following a brush with border agents that separated them from their group and made them decide to return to Mexico so they could try the journey into the United States for work another day.
- WATCH: George Kelly Accused Of Killing Migrant Walking Through His Property
- Hunley said injuries to the victim’s body combined with ballistics evidence on Kelly’s patio suggest Kelly shot at him from the patio and that Cuen-Buitimea was not shot at from close range.
- Defense lawyer Breanna Larkin said Gabriel Cuen-Buitimea’s clothing, radio and pictures on his phone suggest he was a trafficker who was shot by someone else and left on Kelly’s property.
- Daniel Ramirez was one of at least three people who claimed to witness the shooting but he made several verifiably false claims that suggest he wasn’t actually there, the defense lawyer said.
- Kelly was living in a state of fear of armed traffickers who regularly crossed his property and on one occasion shot at him, Larkin said.
- Kelly never denied firing a warning shot into the air after he saw a group of armed men wearing backpacks on his property, one of whom pointed a gun at him, but Larkin said law enforcement twisted Kelly’s words to make it sound like he admitted to firing at the men without provocation.
