NOGALES, Ariz.—A jury on April 18 will hear closing arguments in the monthlong trial of an Arizona man accused of murdering an illegal immigrant on his ranch property near the U.S.-Mexico border.
George Alan Kelly, 75, faces charges of second-degree murder and aggravated assault with a deadly weapon in the alleged shooting death of Mexican citizen Gabriel Cuen-Buitimea, 48, on Jan. 30, 2023.
Prosecutors claim the evidence proves beyond a reasonable doubt that Mr. Kelly fired an AK-47 at a group of men who were trespassing on his property and that one of the bullets struck and killed Mr. Buitimea. However, investigators did not recover a bullet.
Defense lawyers argue the case is largely circumstantial, lacking physical proof that the bullet came from the same rifle Mr. Kelly used in the incident when he fired warning shots over the men as they fled south.
Investigators recovered the victim’s body with a single perforating gunshot wound lying face down in the grass about 116 yards away from the defendant’s east-facing property. An alleged eyewitness to the shooting testified the victim died face up.
The victim was also wearing a backpack, fanny pack, tactical clothing, and had a two-way radio.
On April 17, the defense rested its case after a second day of questioning of Santa Cruz County Sheriff David Hathaway, who testified to his involvement in the investigation and traveling to Mexico to interview the eyewitness.
Mr. Hathaway testified that the interview with Daniel Ramirez Ruiz (Varela) on Feb. 15, 2023, lasted about an hour and that only a small portion was recorded on video.
The sheriff said his goal was to assess the “veracity” of the witness.
Mr. Kelly’s defense co-counsel Brenna Larkin asked, “How were you planning to test Daniel’s credibility?”
“I know probably more than anyone else in the sheriff’s office about the overall aspects of this case since I am the sheriff and I was briefed continually on it,” Mr. Hathaway responded.
“I did not go to the crime scene, but I can attest, for example, that an AK-47 was fired, that [Ramirez] recognized the sound, that I know an AK-47 was recovered, and that shell casings from an AK-47 [were found at the scene], so that’s one example of testing.”
Mr. Hathaway testified he was aware of two other potential eyewitnesses named Ramon and Miguel.
“Were you aware that Ramon was also claiming that he was at the shooting? That he was there?” Ms. Larkin asked.
Mr. Hathaway responded that he was aware of an initial group of seven migrants that split up when they spotted a Border Patrol vehicle near the border wall and Mr. Kelly’s property in Nogales.
“And you’re aware of that because Daniel told you that? Is that where that came from?” Ms. Larkin asked.
Mr. Hathaway replied, “That would be one way I was aware of that.”
“What was the other way you were aware of that?”
“Um. [Paused]. I don’t know.”
“That’s what Daniel told you?”
“That’s what Daniel told me.”
Ms. Larkin suggested a better way to test the credibility would have been to ask the witness who else was with him at the time of the alleged shooting.
“Tell me about [the interview],” Ms. Larkin said. “What did you record? What did you not record? And why?”
Mr. Hathaway responded that he recorded six minutes and 40 seconds of the interview on his cellphone video camera.
“So it was a summary—just a thought I had at the end of the interview,” he said. “If something happened to this witness, if he disappeared [or] wound up getting killed, um. I wanted to have something other than my word and Detective Barba’s word that we actually talked to the witness. It was a summary of the events of that day. I’m sure there were things covered in the overall interview that are not captured in that video interview.”
“So you spoke to him for a while and then recorded this six-minute portion after you had substantially finished the interview?” Ms. Larkin asked. “Why didn’t you record the whole thing?”
“I didn’t think of it until we were at the end.”
“You didn’t think of recording a witness interview?”
“I think most interviews on the street are not video recorded. But I did think the nature of this individual—he didn’t have legal documents to the U.S. I just thought maybe I’ll never see this witness again. Maybe it would be a good idea to do a summary to show that we had actually met with an interview,” he said. “We just did the best we could in Mexico.”
“Who is Big Super?” Ms. Larkin later asked.
“Um, he has a YouTube channel,” Mr. Hathaway responded.
“Is this a person that you talked to about this case? Did you make comments to Big Super about Mr. Kelly’s case?”
“Um. As a public information officer for the sheriff’s office, I try to be transparent and talk to anybody,” Mr. Hathaway answered. “This Big Super individual wanted to do a border tour, and while we were doing that border tour, he asked me what about vigilantes. Do you have vigilantes on the border? I gave an answer—I didn’t say Mr. Kelly’s name—I said we have a situation where there’s a rancher that shot at two migrants and killed one of them, and the other one got away. I did mention that incident, but I didn’t say George Kelly’s name in that interview.”
Mr. Larkin then asked, “Did you say that he just ‘wanted to go hunt him some Mexicans’?”
“No. After that comment, I did segue into a collective pronoun, the word ‘they,’ that there is a type that they want to go hunt themselves some Mexicans. That they want to have the mystique of the old west—the border, get some excitement. There are individuals that do that. There’s one called ‘Take The Border Back’ that just came in not too long ago—a bunch of armed individuals. I told Big Super that this was rare. It was not common. But it does happen occasionally.”
Mr. Hathaway appeared in the 52-minute interview titled “Sheriff Serving & Living On US/Mexico Border Tour Both Sides,” published on the Big Super channel on Feb. 17, 2024.
Ms. Larkin pressed the witness further, “You told Big Super we caught this rancher shooting at migrants. And then you said some people want to hunt some Mexicans. You made that statement.”
“Yeah. I did kind of colloquial—there are some people that they want to come hunt them some Mexicans. I did say that statement.”
“Right after referencing Mr. Kelly’s case,” Ms. Larkin said.
“I didn’t mention Mr. Kelly, but I did refer generically to a type that has that attitude,” Mr. Hathaway responded.
“You didn’t say Mr. Kelly’s name, but that’s who you meant. Right?”
“That is who I meant,” the sheriff answered.
The witness also testified that he believe some Arizona ranchers frequently exaggerate their concerns over illegal immigration to the media.
He referred to these people as “pet ranchers.”
Santa Cruz County Superior Court Judge Thomas Fink later met with the defense and prosecution lawyers to hash out jury instructions.
Of the eight men and four women sitting on the jury, eight will actually deliberate the facts in the cases, and the other four will serve as alternates.
