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MILLARD COUNTY ATTORNEY LETTER TO MILLARD COUNTY SHERIFF REGARDING THE INVESTIGATION OF DEPUTY DALE JOSSE'S USE OF DEADLY FORCE - DECEMBER 14, 2012
Friday, 14 December 2012 17:12

December 14, 2012

Sheriff Robert Dekker
Millard County Sheriff’s Office
765 South Highway 99
Fillmore, Utah 84631

 Re: Investigation of Deputy Dale Josse’s Use of Deadly Force
       Incident Date:  October 15, 2012
       Incident Location: Northeast of Kanosh, Utah     

Dear Sheriff Dekker,

 The Utah County Sheriff’s Office has completed its investigation of the above referenced deputy-involved shooting and presented its reports and supporting documentation to my office for review.  After independently reviewing the Utah County Sheriff’s Office reports, including audio and video footage, interviews, photographs, medical reports and other documentation, the Millard County Attorney’s Office has now completed its review regarding Deputy Dale Josse’s use of deadly force against Corey Dee Kanosh during an incident that occurred on October 15, 2012.


FACT OVERVIEW

 On October 15, 2012 at approximately 8:34 p.m. Corey Kanosh’s mother, Marlene Pikyavit, called the Millard County Sheriff’s dispatch center and reported that her son, Corey Kanosh and a man identified as Dana Harnes, had taken her white 1991 Chevrolet Cavalier without permission.  Deputy Mike Peacock was sent to Marlene Pikyavit’s home at the Kanosh Paiute Indian Reservation to take a report.  He was told that Corey Kanosh and another individual by the name of Dana Harnes had taken a car without permission and that they were possibly in the area. 

 Deputy Josse was working in the west area of Millard County when a stolen vehicle report was broadcast by dispatch via instant message on the deputy’s computer.  He was asked to drive to the Kanosh Town area to assist with efforts to locate the vehicle.  Deputy Josse met with Deputy Mike Peacock and was advised that the person who took the vehicle was identified as Corey Kanosh whom Deputy Josse knew from previous incidents.  Deputy Josse  was also aware that Kanosh had a criminal history that included Kanosh’s involvement in an armed stand-off with law enforcement personnel and of multiple alcohol related incidents.

 At approximately 10:15 p.m. Deputy Josse located the vehicle at approximately 200 North on 100 East in Kanosh and followed it north toward what is known as “Reservation Road”.  Deputy Josse observed that the vehicle was traveling at a high speed, ran a stop sign and appeared to be running from him.  At this point, Deputy Josse activated his overhead lights and siren.  The suspect vehicle responded to the lights and siren of Deputy Josse’s patrol vehicle by increasing its speed.  Dana Harnes, who was the driver of the car at that time, told Utah County investigators that when he saw that a police officer was trying to pull him over, he and Kanosh made the decision not to stop but to try and get away.

 Deputy Josse pursued the fleeing vehicle east and then north on what is known as “Reservation Drive”.  The vehicle turned around at the end of Reservation Drive and came toward Deputy Josse.  Deputy Josse reported to Deputy Peacock that the suspect vehicle almost rammed his patrol vehicle.  At that time, he visually identified the passenger in the vehicle as Corey Kanosh but did not know the driver.  The vehicle then went south on Reservation Drive, where it turned east and traveled toward the Paiute Indian Cemetery on a gravel road.  Deputy Josse continued to pursue the vehicle with lights and sirens past the cemetery in an east/southeast direction on a two-track road.  Deputy Mike Peacock was trailing a short distance behind Deputy Josse.  During the pursuit there was constant radio traffic between the dispatcher, Deputy Josse, Deputy Peacock and Sergeant Scott Corry documenting their locations and actions.

 At approximately 10:25 p.m. Deputy Josse radioed to dispatch “out on foot.”  The transmission was somewhat broken.  Deputy Peacock requested clarification from the dispatcher  who confirmed that Deputy Josse had called “out on foot.”  He then transmitted to Deputy Peacock that he was “out on the passenger” and that he didn’t see where the driver went.  Deputy Josse told Utah County investigators later that when the car stopped he saw the passenger door open and Kanosh get out.  Kanosh then leaned back into the car and grabbed what turned out to be the remainder of a case of beer.  He also stated that Kanosh had something in his other hand that he could not identify at that time.  (It was later determined that it was probably a cellular phone).  Deputy Josse shined his flashlight into the car and observed that the driver was no longer in the vehicle.  Deputy Josse then pursued Kanosh on foot, identifying himself from the Sheriff’s Office and identifying himself as police officer and calling several times for Kanosh to stop.

 Deputy Josse told Utah County investigators that he chased Corey Kanosh for what he thought was 150 to 200 yards, intermittently gaining ground and losing ground as they ran.  At one point during the foot chase he closed to within approximately ten feet of Kanosh and deployed his taser.  The taser fires two barbs.  Deputy Josse saw that the taser struck Kanosh in the back and was surprised that it seemed to have no effect on Kanosh.   It was later learned that the clothing worn by Kanosh that night included a light gray hoodie, a sleeveless blue t-shirt and a black stretchy dri-fit short sleeved undershirt.  The medical examiner confirmed that one taser prong was embedded in the hoodie.  The bulk of the main taser probe was external with the barb penetrating the hoodie, the blue t-shirt and snagging the inner black undershirt.  There was no injury noted of the skin surface.  There was also a second small puncture hole which continues through the hoodie and forms a hole on the blue t-shirt. However, nothing was noted on the black undershirt.  It appears the taser prongs did not make skin contact which accounts for Kanosh not reacting when he was hit by the taser barbs.  Kanosh continued to run, dragging the spent taser cartridge on the ground behind him.

 Deputy Josse told Utah County investigators that after running a short distance further Kanosh tripped and fell to the ground.  Deputy Josse found Kanosh lying on his stomach with his right hand tucked underneath his body.  The deputy got on top of Kanosh and attempted to restrain him.  Deputy Josse stated that he could smell alcohol when he first had contact with Kanosh.  Deputy Josse gave Kanosh numerous commands to show his hand but Kanosh refused to obey the deputy’s orders.  Deputy Josse was able to eventually remove Kanosh’s hand from underneath his body, however, there was nothing found in Kanosh’s hand.  Kanosh reached back and grabbed Deputy Josse’s leg and attempted to stand up.  Deputy Josse ordered him to stay on the ground.  Kanosh then forced himself and Deputy Josse to a standing position.  Deputy Josse called “10-78”, requesting backup. 

 After Kanosh forced them to a standing position, Deputy Josse and Kanosh were in physical contact with each other and the deputy tried to push off of Kanosh’s chest to create some distance between himself and Kanosh.  At that point, Kanosh grabbed Deputy Josse by the throat with one hand and wrapped the other hand around Deputy Josse’s back.  Deputy Josse reported feeling pressure on his throat and was concerned.  Deputy Josse ordered Kanosh to let go as he was trying to free himself.  He reported that Kanosh began pushing him backwards.  Deputy Josse then struck Kanosh in the face with his flashlight in an attempt to get him to release his grip on Deputy Josse’s throat.  As the struggle continued, the deputy started to stumble backwards, trying to catch his balance with Kanosh still pushing on top of him.  Deputy Josse became fearful that if Kanosh were to force him to the ground he would have no defense and Kanosh would kill him.  As Deputy Josse began to stumble backward with  Kanosh still gripping him, Deputy Josse dropped his flashlight, unholstered his duty weapon and fired two shots from a hip position.  Deputy Josse then fell onto his back and  Kanosh fell on top of him.  Deputy Josse estimated the on-foot chase to last between one and two minutes and the hands-on confrontation until its conclusion to last approximately one minute.  

 Deputy Peacock told Utah County investigators that after he arrived at the scene with his K-9, he could see the light from Deputy Josse’s flashlight as Deputy Josse was chasing  Kanosh.  He heard Deputy Josse yell “Get on the ground”.  The flashlight movement then stopped and waived around in one location.  At that point he could hear noises, but nothing discernable.  He heard Deputy Josse’s call for “10-78” indicating that he needed back up.  As he was running to Deputy Josse’s location, approximately thirty seconds after Deputy Josse called “10-78” and approximately two minutes and twenty five seconds after Deputy Josse called “out on foot”, Deputy Peacock saw muzzle flashes and heard two gun shots.  He immediately called “10-33 shots fired!” on the radio and continued running toward their location.  Deputy Peacock was in close proximity to Deputy Josse and Kanosh when he heard the shots.  When Deputy Peacock arrived at the location of the altercation he saw Deputy Josse lying on his back, not moving.  He noted that Kanosh’s legs were still on top of Deputy Josse’s legs and Kanosh was crawling slowly away.  Deputy Peacock stated that Kanosh crawled a few feet then collapsed.

 Utah County Sheriff’s Office detectives and crime scene investigators responded to Millard County at the Millard County Sheriff’s request, to investigate the shooting.  Crime scene investigators were able to document the path Deputy Josse and Kanosh took on foot by observing ground disturbances as well as by the location of numerous items of evidence dropped during the course of the pursuit, including beer cans, a cellular telephone, taser afid markers, the taser door, taser wires, the spent taser cartridge, and spent .40 caliber ammunition casings.  All of the evidence collected and observations made in the course of the crime scene investigation support and corroborate Deputy Josse’s account of the events leading up to the shooting.

 Utah County detectives interviewed Kanosh’s family members, who reported generally Kanosh’s demeanor when he has been drinking.  Detectives interviewed Deputy Peacock and found his account of the events leading up to the shooting to be consistent with the radio traffic and dash camera data collected in the course of the investigation and supportive of Deputy Josse’s account.  Detectives also interviewed Harnes following his arrest and found his account to be generally consistent with the account of Deputy Josse with the exception of the timing of the events after Harnes and Kanosh ran from the vehicle on foot.  Harnes believed that the events took place in a much shorter time frame than is documented by the Millard County Sheriff’s Office radio traffic and the accounts of Deputy Josse and Deputy Peacock.  It should be noted that Harnes admitted to having consumed a substantial amount of alcohol prior to the car chase.

 Ballistics experts performed tests with Deputy Josse’s duty weapon and determined that the shots were fired from close range in a manner consistent with Deputy Josse’s account of the shooting.  The medical examiner’s autopsy report is likewise consistent and corroborative of Deputy Josse’s account of the shooting.  The toxicology report showed Kanosh’s blood alcohol level to be .31 micrograms per milliliter.


LEGAL STANDARD

 Utah Code Ann § 76-2-404(1)(c) states in pertinent part: “A peace officer . . . is justified in using deadly force when . . . (c) the officer reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury to the officer or another person.” 

CONCLUSIONS

 *  Kanosh and Harnes had made a concerted effort to elude capture by Deputy Josse, including a high speed car chase (felony evasion) and an attempt to flee on foot.
 * Kanosh had consumed alcohol.
 * Deputy Josse identified himself from the Sheriff’s Office and also identified himself numerous times as a police officer, commanding Kanosh to stop while in foot pursuit.  While in contact with each other, Deputy Josse ordered Kanosh to stay down and not to resist.  Kanosh had several opportunities to comply with Deputy Josse’s commands and to give himself up.  He refused to do so and continued with an aggressive behavior toward the deputy.
 *  Photographs show evidence of scrapes on Kanosh’s left and right knee area of the legs, grass stains on both knees of the shorts and abrasions on his left hand above the index finger and his right eye.  Deputy Josse’s clothing showed grass stains and dirt on the pants and shirt and brush protruding from the deputy’s cell phone holder which was attached to his duty belt, all consistent with having a struggle on the ground.
 *  Kanosh demonstrated tremendous strength and resolve during the hands-on altercation with Deputy Josse.  He was able to force himself from a prone position to a standing position with Deputy Josse’s full weight on him.  He was able to turn and face Deputy Josse and grab Deputy Josse’s throat and back.  Deputy Josse feared that he would not have been able to defend himself had Kanosh successfully forced him onto his back.
 *  Deputy Josse had attempted non-lethal methods of enforcing compliance prior to using deadly force.  He attempted to immobilize Kanosh with his taser; he tried to create distance between him and Kanosh using his hands and arms during their struggle; and he tried striking Kanosh with his flashlight.  Kanosh would not release his grip on Deputy Josse.
 *Dispatch logs and recordings support the account of events offered by Deputy Josse and Deputy Peacock.
 * Previous to this encounter, Deputy Josse had knowledge that Kanosh had a criminal history that included his involvement in an armed stand-off with law enforcement.
 Under Section 76-2-404(1)(c), Deputy Josse reasonably believed that the use of deadly force was necessary to prevent death or serious bodily injury to himself.  Consequently, it is the opinion of this office that under the standard enumerated above, Deputy Josse was justified in using deadly force in his encounter with Corey Kanosh on October 15, 2012. 

 In the event you have any questions or concerns and wish to discuss this investigation further, please do not hesitate to contact me. 
 
Sincerely,


Richard T. Waddingham
Millard County Attorney

 

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