Prosecutors reduced the murder charge against Arizona border rancher George Alan Kelly from first-degree to second-degree, a lesser offense that doesn’t involve premeditation, in court documents filed late Thursday.
Kelly, 74, was arrested after Santa Cruz County sheriff’s deputies found the body of Gabriel Cuen Buitimea, 48, of Mexico, Jan. 30 on Kelly’s property near Nogales and close to the U.S.-Mexico border.
Prosecutor Kim Hunley explained the reduced charge on Friday. She said that even if Kelly shot Cuen Buitimea on accident while intending to fire a warning shot, the state can still establish that he committed second-degree murder because of “extreme indifference” to human life in which “he recklessly caused his death.”
The prosecution alleges there was a group of seven to eight undocumented migrants traveling north through Kelly’s land, unarmed, and that he shot at them without warning or provocation, fatally shooting Cuen Buitimea in the back as he ran away.
Two charges of aggravated assault with a deadly weapon, related to two other alleged victims, were added to the murder charge against Kelly on Tuesday. The two other people are identified only by initials in court documents.
Kelly has pleaded not guilty. His defense says he saw a group of men on his property carrying AK-47s, wearing khakis and camouflaged clothing and carrying large backpacks, and that he fired a warning shot above their heads.
Kelly posted bond and was released from jail Wednesday afternoon, after a judge agreed to change his $1 million cash bond to a surety bond of the same amount, meaning a bail bondsman could post bail, earlier that day.
Bullet casings a match
A detective testified Friday in Nogales in an evidentiary hearing in the case that he found bullet casings around the property that fit an AK-47 and match ammunition connected to Kelly.
The Santa Cruz County Sheriff’s Office discovered a bullet casing on Kelly’s back porch, while executing a search warrant, that can be used in an AK-47 as well as eight additional casings on the property, the lead detective in the case, Jorge Ainza, testified.
Officers who responded to the incident earlier in the day, before Cuen Buitimea’s body was discovered, saw Kelly with an AK-47, he said.
The place detectives found the casings was consistent with shots being fired toward where the body was found behind the house, Ainza said. He also found numerous rounds of ammunition matching the casings found on the property as well as a number of other weapons.
Ainza also said the accounts Kelly gave to law enforcement were inconsistent, including changing his statement on whether he shot his gun and how many people he saw, which was part of why Ainza decided to arrest him on suspicion of murder.
Ainza also said Border Patrol agents told him the area of Kelly’s ranch is a high crime area. One agent told him he had encountered armed people out there before, with both handguns and rifles and that there had been an increased amount of drug trafficking in the area, Ainza said at the hearing.
Alleged victim says group wasn’t armed
One of the other alleged victims in the case, only identified as D.R.-R., said he and Cuen Buitimea were crossing into the U.S. that day to find work in Phoenix. They were in a group of seven men total, and no one was armed, he testified Friday.
D.R.-R. said he’s a field worker in Sonora and has crossed into the U.S. undocumented about a half-dozen times, getting caught by authorities every time. He has been convicted of illegal entry and spent some time incarcerated for it.
Not much has been released about Cuen Buitimea, but federal court records show someone with the same name and age pleaded guilty to unlawfully entering the country at or near Nogales in 2016 and had been either denied entry or deported several times in previous years.
D.R.-R. said at the hearing that he and Cuen Buitimea worked together and were friends.
When they crossed the border on Jan. 30, they walked to where the border wall ends outside Nogales and entered the U.S. near the Kino Springs area, near Kelly’s ranch, he said.
D.R.-R said he arranged with someone he met at work to cross the border and agreed to pay $2,500. He paid half up front and planned to pay the rest with money he hoped to make working in Phoenix, he said.
They were resting close to a dirt road when suddenly they were being shot at, D.R.-R. said. Cuen Buitimea clutched his chest, said he’d been hit and fell. D.R.-R. could see he was dead.
He ran, and when he turned around, he saw Kelly, he said. He said he saw there was something in Kelly’s hands, but he did not know what it was.
D.R.-R. said he knew it was an AK-47 shooting at them because he recognized the sound. When defense attorney Brenna Larkin asked him how he knew what an AK-47 sounded like, he said he was used to hearing people fire them to celebrate during holidays.
Detective Joseph Bonting with the Santa Cruz County Sheriff’s Office also testified Friday.
There is a lot of brush from mesquite trees between Kelly’s house and where the body was found, he said. Shooting someone from that distance, about 120 yards, and through the brush would be a hard shot, he said in response to questions from the defense.
Closing arguments in the hearing were yet to be made as of late Friday.
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