From the Sierra Vista Herald of June 11, 2006
County attorney's office: Deadly SV shooting justified
A Cochise County Attorney’s Office investigation of the July 23, 2005, shooting that left a local man dead and his wife injured has determined the shooting is legally justifiable as self-defense.
The office made its findings public in a letter Wednesday addressed to the Sierra Vista Police Department, which was the investigative agency. The case will not be sent to a grand jury or a preliminary court hearing after the office’s review, Cochise County Attorney Ed Rheinheimer said.
Sierra Vista police and family members of the man killed expressed disappointment Friday that the case won’t be reviewed by a grand jury.
Office says shooting was justified
The justification decision occurred because of the intensity of the confrontation between Frank Pence, 35, and the boy who was 16 years old at the time. Another factor in the decision was consideration of evidence and the “totality of the circumstances” during the incident, the county attorney’s office stated in the letter.
Because of the boy’s age at the time of the shooting, and the fact he was not charged with any crime, the Herald/Review decided not to publish his name.
“(The boy who shot Pence) was legally entitled to use deadly force in defending himself, his younger brother and their residence from Frank Pence,” the letter from the county attorney’s office stated. “Under Arizona law, he had no duty to retreat before resorting to the use of deadly force.”
Physical evidence in the case, including Pence’s blood and cigarette butt on the inside of the boy’s residence noted by Sierra Vista police investigators, combined with witness statements, indicate justification, “i.e., Frank Pence entering the residence with the intent to assault” the boy’s younger brother. “Keep in mind that Mr. Pence had already assaulted (the 16-year-old boy) outside the residence,” and the younger brother had physically pushed Mr. Pence off of the older brother and then ran inside, the county attorney’s letter stated.
In the incident last summer, a car with several teenage boys evidently exchanged verbal barbs, middle fingers and threats with Pence in front of the Pence residence on Avenida Escuela.
Pence then followed the boys in his own vehicle, and both parties eventually ended up in the yard of one of the boys in the car, specifically the boy who later shot Pence and his wife by firing a single round, according to police, witness and victim reports.
The boy’s younger brother and several other teenage witnesses were at the scene of the shooting. Pence’s wife, Kathy, and the Pences’ 6-year-old son arrived and were at the scene before the deadly shot was fired at the residence located in the 2700 block of Quail Run Drive.
During the altercation, the 16-year-old boy called 9-1-1 to report Pence’s trespassing at his residence, at which time Pence is said to have temporarily backed off.
As the altercation grew more heated, the boy apparently shot Pence with a semi-automatic 9 mm handgun, according to witnesses in the police reports. The bullet went through Pence’s torso and then hit his wife in her left arm, according to city police investigation reports.
Pence’s young son was interviewed by police and indicated he saw his father being shot.
The handgun belonged to the shooter’s father.