NOGALES, Ariz.—A detective in the George Alan Kelly murder case testified at the trial that an interview with the sole eyewitness to the fatal shooting of an illegal immigrant in Arizona was partially recorded in an empty hotel lounge in Mexico.
On April 11, the 12th day of the trial, defense co-counsel Brenna Larkin asked the prosecution witness, “Why did you go into Mexico to interview him?”
Detective Mario Barba of the Santa Cruz County Sheriff’s Office Criminal Investigations Division replied it was because the witness “couldn’t cross into the United States legally. ” He also didn’t have a phone or a computer.
“You could have spoken to Mexican officials to arrange something? Correct?” Ms. Larkin asked.
“Correct,” the detective responded.
“And you didn’t do that. Did you?” Ms. Larkin said.
“No,” the detective replied.
On the first day of the trial, Daniel Ramirez, the prosecution’s first witness, testified to being present with the victim on the defendant’s property when they encountered a hail of gunfire around 2:30 p.m. on Jan. 30, 2023.
One of the bullets allegedly struck the victim, Gabriel Cuen-Buitimea, 48, killing him almost instantly, the witness testified.
Mr. Kelly, 75, faces charges of second-degree murder and aggravated assault with a deadly weapon.
The defendant told investigators he was making lunch when he saw a group of men in camouflage clothing carrying rifles walking along the fence line of his property.
He then heard a gunshot, told his wife to stay quiet, grabbed his AK-47 rifle, and went outside onto the porch, where he allegedly fired warning shots in the air.
His wife, Wanda Kelly, testified to looking through a living room window and seeing the men walking east to west.
She said she then heard several gunshots from close by, looked out, and saw her husband walking south in the group’s direction.
The state recalled prosecution witness David Monreal, a Santa Cruz County sheriff’s deputy, who testified on April 10 that Mrs. Kelly could not remember the number of shots fired “due to being startled” by the incident.
Law enforcement found Mr. Kelly walking along a dirt road, cradling an AK-47 rifle on his shoulder, according to court testimony.
A joint search of the Kelly’s property by sheriff’s deputies and Border Patrol, however, found no sign of the men.
When the defendant later went to check on his horse around 5:30 p.m., he discovered the victim lying face down in the grass near a mesquite tree 116 yards south of the ranch house.
Law enforcement photos showed the deceased man wearing tan pants and a camouflage jacket, carrying a partially unzipped camouflage backpack, and a fanny pack with a broken buckle.
The backpack covered the back of the victim’s head.
Mr. Ramirez testified the victim had died face up.
Investigators have yet to locate the bullet that allegedly killed the deceased.
Detective Barba testified that investigators obtained a warrant to conduct a “geofence” search of the Kelly’s property.
This would determine whether multiple cell phones were active in the area at the time of the alleged shooting, but the search could not find any.
Mr. Barba also testified that a forensic examination of the victim’s cellphone produced two text messages before and on the day that he died.
“I have not received it yet,” the first message said in Spanish, time-stamped around 9 p.m. on Jan. 29, 2023.
A midnight text message on Jan. 30, 2023, also in Spanish read, “They’re going to call you, buddy.”
On Jan. 21, 2023, Mr. Cuen-Buitimea appeared in a social media photograph wearing a tan jacket over a black hooded sweatshirt, tan pants, and tactical boots.
He carried a fanny pack over his chest, binoculars around his neck, and a handheld radio on his waistband.
“Why did you believe this photo was important?” Ms. Larkin asked the prosecution witness.
“Similar clothing,” Mr. Barba replied.
“Similar clothing on a different day?” Ms. Larkin asked.
“Correct,” Mr. Barba said.
A forensic examination of Mr. Kelly’s cellphone yielded several text messages exchanged with a Border Patrol agent about heavy illegal immigrant and smuggling activity in the area.
Mr. Barba testified that in several of the messages, Mr. Kelly had used the acronym “LNL,” which stands for “Locked And Loaded.”
The defense said it will present a video of Santa Cruz County Sheriff’s Office Detective Jorge Ainza, the lead investigator, saying during an interview with the defendant, “You shot him ... If you keep lying, it’s going to get worse for you.”
On April 11, the dozen jury members viewed 14 locations on the Kelly ranch before traveling 1.5 miles south to view the border fence where Mr. Ramirez allegedly ran back into Mexico after the shooting.
At first, Mr. Barba testified that the meeting in the hotel lounge in Nogales, Sonora, Mexico was to obtain a statement from Mr. Ramirez.
Santa Cruz County Sheriff David Hathaway accompanied the detective and recorded about six minutes of the 40-minute interview, Mr. Barba further testified.
“You and Sheriff Hathaway crossed into Mexico to conduct a criminal investigation there, correct?” Ms. Larkin asked.
“Well, it was a witness statement,” Mr. Barba said.
“Is taking a witness interview part of a criminal investigation?” Ms. Larkin asked.
“Sometimes,” he replied.
“Was taking this witness interview part of a criminal investigation?”
“Yes,” Mr. Barba answered.
Mr. Barba said his concern was that a tape recorder would “bring some eyes” onto the witness, given the high-profile case, and that he took notes instead.
“I didn’t want those extra eyes to contaminate the interview,” he said.
“When you interviewed Daniel in Mexico, you did not record it, right? But Sheriff Hathaway recorded a portion of this after you spoke with Daniel. Correct?” Ms. Larkin asked.
“Well, it was not like there was a break in between. It was kind of immediately,” Mr. Barba responded.
“And you stated that you didn’t record this interview because you were concerned about privacy. Correct?”
“Correct,” Mr. Barba replied.
“But Sheriff Hathaway went ahead and recorded the interview. Correct?” Ms. Larkin continued.
“Correct,” Mr. Barba said.
“So he didn’t share your concerns. Correct?” Ms. Larkin asked.
“Right,” Mr. Barba replied.
Ms. Larkin then asked, “Is it standard practice to do an interview and only record a small portion of that interview? That’s not standard practice. Right?”
“No,” the detective replied.
“Did Daniel—did he ever tell you his last name was really Varela?” she asked next.
“I don’t recall,” he replied.
“You never noted in your report that his last name could be Varela. Right?” she said.
“No,” Mr. Barba answered.
“And also present at that interview were two family members of Gabriel. Right?”
“That’s correct,” he responded.
“And some guy by the name of Juan Carlos Rodriguez. Is that correct?” she asked.
“Right,” he said.
“You didn’t look into him at all, did you?” she asked.
“Well, he was identified as an ongoing facilitator of the interview,” the detective replied.
“That’s what he told you. Right? And the daughters confirmed that he was not a relative. And you didn’t confirm that independently. Right?” she inquired.
“Right,” Mr. Barba responded.
Prosecutors said they expect to rest the state’s case on April 12.
Concerned that the trial would drag out longer than three weeks, Judge Thomas Fink told attorneys on both sides that he would consider time limits on questioning witnesses.
The judge then told Ms. Larkin that she had five more minutes to question Mr. Barba.
“Judge, I have to object,“ Ms. Larkin responded. ”This witness is very crucial to the defense. I’ve never been limited to just five minutes of cross-examination. And this witness has testified to all sorts of involvement in this case.
“Judge, limiting me to five minutes of cross-examination with this witness violates Mr. Kelly’s constitutional rights.”
“You now have four minutes. Call the witness,” Judge Fink said.
