Judge: Murder charge vs. Arizona border rancher will move forward

A judge ruled late Friday that the prosecution of a rancher on charges including second-degree murder will proceed to trial in Santa Cruz County Superior Court.

Santa Cruz County Justice of the Peace Emilio G. Velasquez found that the state established probable cause, or adequate evidence, at a hearing Friday in Nogales to prosecute George Alan Kelly on the charges. Both the state and the defense called witnesses at the hearing.

Kelly, 74, was arrested after sheriff’s deputies found the body of Gabriel Cuen Buitimea, 48, of Nogales, Sonora, Jan. 30 on the rancher’s property near Nogales and close to the U.S.-Mexico border. He has pleaded not guilty.

“Do I think there was some testimony that there might have been some holes on? Yes. I do,” the judge said, according to the Associated Press. “But at the end of the day ... the court does find that the offenses were committed by this defendant and I will be binding this over to Superior Court.”

Velasquez said Kelly can remain free on $1 million bail pending his March 6 arraignment, with restrictions including no contact with witnesses or Cuen-Buitimea’s family and a ban on possessing firearms.

Kelly was initially charged with first-degree murder but prosecutors lowered the charge to second-degree, a lesser offense that doesn’t involve premeditation.

Kimberly Hunley, chief deputy county attorney, explained the reduced charge, saying Friday 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.”

Judge weighed arguments

Prosecutors allege Kelly opened fire with an AK-47 rifle, without warning or provocation, on a group of seven to eight undocumented migrants traveling north through his land, unarmed, and that he fatally shot Cuen Buitimea in the back as he ran away.

Kelly’s defense counters that 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. His attorney Brenna Larkin has said Kelly feared for his and his wife’s safety.

Kelly is also charged with two counts of aggravated assault against two of the migrants, who told authorities Kelly also shot at them but they weren’t hit and escaped back into Mexico. One of the two testified Friday.

Defense attorney Larkin argued Friday that probable cause could not be established for reasons including that if people shot at Kelly, he would be justified in shooting over their heads; and that the witness testimony was inconsistent during the hearing and contradicts the testimony of the other witness not at the hearing.

“It’s easy, after the fact, for anybody to come forward and cook up a story,” said Larkin. “I’m only surprised that the stories that were cooked up were so full of holes and so inconsistent with the physical evidence that they’re literally impossible to believe.”

Hunley, the prosecutor, said there is probable cause to move forward because even based on Kelly’s own admission, he went out and shot in the direction of people who were 80 yards or more away.

“There’s no justification for running out of your property and shooting at people … There is certainly no justification for shooting an unarmed man in the back,” the prosecutor said.

Hunley also said Kelly’s statements to law enforcement about the incident were inconsistent and that witness testimony insinuates Kelly was closer to Cuen Buitimea than he says when the victim was shot.

Kelly posted bond and was released from jail Wednesday afternoon, after Velasquez agreed to change his $1 million cash bond to a surety bond of the same amount, which allowed Kelly to put up his ranch and home as collateral rather than come up with the cash.

‘Held his chest and said ‘I’m hit’’

The migrant who testified Friday was only identified by the initials D.R.-R. Hunley has said her office, the court and the sheriff’s department “have all received disturbing communications, some threatening in nature, that seem to indicate an ongoing threat to the safety of the victims.”

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D.R.-R., speaking through a Spanish-language interpreter, 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 said.

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, , he said, which is near Kelly’s ranch.

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.

“I saw Gabriel,” he said. “He held his chest and said ‘I’m hit.’ He rolled his eyes and fell down.” D.R.-R. said he 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.

Detectives describe scene

A detective testified 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, said the lead detective in the case, Jorge Ainza.

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.

Sheriff’s detective Joseph Bonting also testified.

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.