Cochise County Attorney's Office finds border patrol agent justified in fatal shooting

Cochise County Sheriff's Department

ATTN: Detective Hoke

205 N. Judd Dr.

Bisbee, AZ 85603

Via Mail/Office Facsimile

RE: State of Arizona vs. Kendrek Bybee Staheli

DR# 22-03910

Dear Detective Hoke,

Thank you for providing the completed investigation in this matter. After review of

all the available evidence, Agent Staheli’s actions appear to be justified under Arizona law.

A.R.S. 13-409 and 410 govern the use or threatened use of physical force and deadly

physical force in law enforcement. Specifically, A.R.S. 13-410 provides:

C. The use of deadly force by a peace officer against another is justified

pursuant to section 13-409 only when the peace officer reasonably believes

that it is necessary:

1. To defend himself or a third person from what the peace officer reasonably

believes to be the use or imminent use of deadly physical force.

In addition, law enforcement officers are entitled to the same self-defense

protections of any other individual in Arizona. In any prosecution that involves a selfdefense claim in Arizona, the State is required to prove beyond a reasonable doubt that the

conduct was not justified, rather than it being an affirmative defense with the burden on

the Defendant. There is insufficient evidence contradicting the Agent’s explanation of the

events in question to meet this high burden. Indeed, the evidence appears to support the

Agent’s version of events.

The area in which the shooting occurred is a remote, treacherous, landscape, even

during the day. Unsurprisingly, due to lack of available air assets and personnel the

evening of the shooting, the scene was secured overnight and processed the next day once

it was possible to make entry with the necessary equipment and personnel. This is notable

because it also relates to the situation which the Agents were presented with that evening.

As described in the reports, the two horse patrol agents were confronted with a

potential two on ten apprehension scenario and tracking a group in the dark through this

landscape. According to Agents Staheli and Tang, Staheli pursued Mr. Carmelo after

detaining three members of the group. No person, other than Staheli observed the physical

altercation between him and Carmelo. Staheli’s statement that he only fired after Carmelo

picked up a large rock and appeared to be ready to strike him with it is not contradicted by

any physical evidence at the scene. 1While two witnesses who have a familial relationship

indicated they heard a particularly unusual statement uttered by Staheli prior to the

shooting, no other witness reported this information and Staheli’s reported emotional state

after the shooting strongly cuts against this claim. As a result, based upon the available

evidence the shooting was legally justified and there would be no reasonable likelihood of

conviction on any criminal charge if pursued.

As always, thank you for your professionalism and service in this matter. Please let

me know if you have any questions or concerns regarding the above. Should any additional

evidence become available, please submit that information for consideration.

Sincerely yours,

BRIAN M. MCINTYRE

Cochise County Attorney