People v. Fisher

• Decision Date: 16 March 1992
• Docket Number: Docket No. 111264
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Wayne FISHER, Defendant-Appellant. 193 Mich.App. 284, 483 N.W.2d 452
• Court: Court of Appeal of Michigan — District of US

Page 452

483 N.W.2d 452

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Wayne FISHER, Defendant-Appellant.

Docket No. 111264.

193 Mich.App. 284, 483 N.W.2d 452

Court of Appeals of Michigan.

Submitted Oct. 1, 1991, at Grand Rapids.

Decided March 16, 1992, at 9:15 a.m.

Released for Publication May 19, 1992.

[193 MICHAPP 285] State Appellate Defender by Fred E. Bell, for defendant-appellant on appeal.

Before DANHOF, C.J., and SULLIVAN and NEFF, JJ.

SULLIVAN, Judge.

Joyce Fisher disappeared on April 15, 1978. On May 27, 1988, a jury convicted her estranged husband, defendant Jerry Wayne Fisher, of involuntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. No witnesses to Joyce Fisher's death have come forward, and her body has never been found. Defendant appeals his conviction on several grounds. We reverse the conviction because the evidence was insufficient to submit the case to the jury and the trial court erred in denying defendant's motion for a directed verdict at the close of the prosecution's case.

We initially note that the prosecutor failed to file a brief in this appeal and failed to appear for oral argument. We are disturbed by this apparent indifference and abandonment of a case this serious after he elected to proceed with marginal evidence to a fourteen-day trial by jury that generated a great deal of public interest and media coverage.

Defendant claims error in the denial of his motion for a directed verdict, in the admission of evidence of prior and subsequent bad acts, in the admission of hearsay evidence of Joyce's fear of defendant, and in the allowance of improper remarks during the prosecutor's closing argument. We agree that the evidence was insufficient and that the prosecutor overstepped his bounds. Some of the evidence complained of was properly admitted for limited purposes, then improperly argued during the prosecutor's closing argument.

In September 1987, defendant was charged with [193 MICHAPP 286] open murder in connection with the disappearance of his wife more than nine years earlier. In April 1978 defendant and Joyce Fisher were in the process of a divorce following a stormy two-year marriage, marked by Joyce's reports to friends and family of frequent beatings by defendant. Joyce testified at a hearing in connection with the divorce that defendant had threatened to kill her in mid-January 1978, approximately three months before she disappeared. Joyce and their child then moved to Chicago to live with Joyce's parents.

On April 14, 1978, Joyce went to her parents' cottage at Indian Lake for a visit between defendant and their daughter scheduled for April 16. On the morning of April 15, witnesses saw Joyce and defendant having a friendly breakfast at a local drugstore. Later that day, Joyce left with defendant in his car to have a vehicle title transfer notarized. Defendant told investigators that, en route, Joyce discovered that they had the wrong title, so they returned to where Joyce had left her car. No witnesses could either refute or support that claim. Several witnesses testified that Joyce has not been seen or heard from since that time. There was also substantial testimony regarding her reliability, her long- and short-term plans, her devotion to her child, and her close relationship with family and friends. This testimony gave rise to a strong inference that she is dead.

At the close of the prosecution's case, defendant moved for a directed verdict, arguing that the evidence was insufficient to submit the case to the jury on any theory, particularly on a theory of first-degree murder because there was no evidence of premeditation or deliberation. The court denied the motion and instructed the jury with regard to first- and second-degree murder and, over defendant's objection, with regard to voluntary and [193 MICHAPP 287] involuntary manslaughter. The jury found defendant guilty of involuntary manslaughter.

Due process requires that the prosecutor introduce sufficient evidence that could justify a trier of fact in concluding that defendant is guilty beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979). The prosecutor in this case failed to introduce sufficient evidence to support submitting any of the homicide theories to the jury.

The prosecutor offered no evidence of an act that resulted in Joyce Fisher's death. A federal appellate court recently held that "neither the body of the missing person nor evidence of the method used to produce death is required to establish the corpus delicti or to sustain a murder conviction." Virgin Islands v. Harris, 938 F.2d 401, 415 (CA 3, 1991). In Harris, even though the court expressed its holding broadly, the facts included several admissions by the defendant and physical evidence, including bloodstains. This Court has held that the victim's body is not necessary to establish the corpus delicti of homicide. People v. Brasic, 171 Mich.App. 222, 227, 429 N.W.2d 860 (1988); People v. Modelski, 164 Mich.App. 337, 342, 416 N.W.2d 708 (1987). In each of those cases, the defendant either admitted or confessed to the killing. We have found no reported Michigan decisions involving a missing body where there was no direct admission, no physical evidence, and no witness to some part of the killing or the disposal of the body.

The court in Harris, pp. 413-415, ns. 12-14, surveyed "missing body" homicide cases. That survey uncovered only one case upholding a conviction without an admission by the defendant or some physical evidence or a witness to some part of the killing or concealment of the body, People v. Scott, 176 Cal.App.2d 458, 1 Cal.Rptr. 600 (1959). The California court, relying on two Commonwealth of [193 MICHAPP 288] Nations cases, ¹ held that there was sufficient evidence to support the conviction. Much of the case concerned circumstantial evidence of the missing person's death. The court also held that whether the defendant knew that his wife was dead was a question of fact susceptible of proof by circumstantial evidence. Id., p. 496, 1 Cal.Rptr. 600. Finding a chain of such evidence in the record, the court affirmed the conviction.

Even if we were to accept that circumstantial proof tending to show that a defendant knows that a missing person is dead is sufficient to support conviction for that death, we find no such evidence in this record. One witness testified vaguely that a year or two after Joyce's disappearance, while defendant was drinking one evening, he said his wife was gone "and nobody can find her" or "nobody is going to find her or something to that effect." Defendant remarried, but not until more than eight years had passed since Joyce disappeared. He lied to his second wife about the circumstances surrounding the end of his first marriage, but not in any way that reasonably can be construed as an admission that he knew Joyce was dead. Defendant told other people in the years following her disappearance either that he was divorced or that his wife was institutionalized. There was no proof of any of the circumstances present in Scott that led that court to conclude: "Every act, every statement of [the defendant] after the disappearance of his wife was consistent only with knowledge that [she] was dead." Id., p. 499.

In this case, there was no physical evidence, such as bloodstains or a weapon, linking defendant to Joyce's death. He did not admit that he killed [193 MICHAPP 289] his wife, although the prosecutor offered an equivocal statement. One police officer testified that he suggested a possible...