People v. Fisher, No. 92897

CourtSupreme Court of Michigan
Writing for the CourtROBERT P. GRIFFIN; CAVANAGH; LEVIN; Levin
Citation442 Mich. 560,503 N.W.2d 50
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Erick FISHER, Defendant-Appellee. Calendar
Decision Date30 June 1993
Docket NumberNo. 4,No. 92897

Page 50

503 N.W.2d 50
442 Mich. 560
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Richard Erick FISHER, Defendant-Appellee.
No. 92897.
Calendar No. 4.
Supreme Court of Michigan.
Argued Dec. 8, 1992.
Decided June 29, 1993.
Dissent by Judge LEVIN June 30, 1993.

Page 51

[442 Mich. 563] Jeffrey L. Sauter, Pros. Atty., William M. Worden, Asst. Pros. Atty., Charlotte, for plaintiff-appellant.

Donald L. Correll, Lansing, for defendant-appellee.

OPINION

ROBERT P. GRIFFIN, Justice.

In this criminal appeal, we must decide whether the marital communications privilege provided by M.C.L. § 600.2162; M.S.A. § 27A.2162 may be invoked in a sentencing proceeding to preclude consideration by the sentencing court of certain extrajudicial statements made by defendant's estranged wife and set forth in the presentence report. Because defendant's spouse was not examined as a witness, we conclude that the privilege was not available in the circumstances presented here.

We are required also to determine whether the circuit court properly applied the second edition of the sentencing guidelines when this defendant was last resentenced in light of the fact that he earlier had been sentenced and resentenced for the same crime while the first edition was still in effect. We find no error in the application of the guidelines.

I

During an altercation with defendant Richard Fisher, William Tappert was stabbed with a hunting knife at the home of Mary Fisher, defendant's estranged wife. Tappert died the next day, and defendant was charged with first-degree murder. M.C.L. § 750.316; M.S.A. § 28.548.

The prosecutor maintained that the killing was premeditated and motivated by jealousy. Although defendant and his wife were separated, he visited the home almost daily to see his children. The prosecution contended that defendant was disturbed[442 Mich. 564] because Tappert, who was Mary Fisher's boyfriend, had been staying at the house during several of the nights which preceded the altercation.

In testimony at his trial before an Eaton County jury, defendant claimed that Tappert was physically abusing Mary Fisher, and that he was coming to her aid when Tappert was stabbed. According to defendant, the two men engaged in a scuffle, he took out a small hunting knife merely to scare Tappert, and the stabbing was accidental.

The jury rejected defendant's version of the events, and convicted him of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549. Thereafter, he was sentenced by Circuit Judge Richard M. Shuster to forty to sixty years in prison. On appeal in the Court of Appeals, defendant's conviction was affirmed. However, because the sentence exceeded the then-recommended minimum sentencing guideline range of seven to sixteen years, the case was remanded to the circuit court for resentencing with instructions to provide a more adequate articulation on the record of reasons for departure from the guidelines. 166 Mich.App. 699, 420 N.W.2d 858

On remand, the circuit judge reread parts of the original sentencing transcript and again sentenced defendant to forty to sixty years. The judge reasoned that when individuals reach the age of sixty they seldom commit violent acts; therefore, by sentencing the twenty-seven-year-old defendant to a minimum of forty years, society would be given some degree of assurance that he would not commit a similar crime. Defendant again appealed in the Court of Appeals, which found the rationale given for the sentence to be "totally inappropriate" and ordered that the defendant be resentenced[442 Mich. 565] by a different judge. 176 Mich.App. 316, 318, 439 N.W.2d 343 (1989).

Upon return to the circuit court for further proceedings, the matter was assigned to visiting Judge Patrick McCauley, who sentenced defendant to a prison term of twenty-five to fifty years. Judge McCauley made clear that he had considered the recommended minimum of ten to twenty-five years set forth in the revised, or second, edition of the sentencing guidelines, which had not been in effect when defendant

Page 52

was earlier sentenced. 1

Defendant appealed for a third time, and the Court of Appeals once again reversed. This time the panel ruled that the lower court erred in two respects: first, in considering for sentencing purposes certain statements in the presentence investigation report that were attributed to Mary Fisher, and, second, by utilizing the revised, or second, edition of the sentencing guidelines. Once again, the case was remanded for resentencing by yet another judge. 190 Mich.App. 598, 476 N.W.2d 762 (1991). After the prosecutor unsuccessfully sought rehearing in the Court of Appeals, this Court granted leave to appeal. 2

II

At the sentencing proceeding conducted by Judge McCauley, defendant challenged the truthfulness of certain statements in the presentence report attributed to Mary Fisher, and he objected on the ground of marital privilege to use of the statements for sentencing purposes. Brief excerpts from the report that include the emphasized challenged statements are:

[442 Mich. 566] " While there Rick [defendant] looked into the bedroom area and said to Mary [Fisher], 'Is your fuckin boyfriend here? Tell him to come in here so I can stick him a couple of times.' "

" Bill Tappert fell to the ground and Mary saw that he was bleeding. She started to cry and asked Rick, 'Did you stab him?', to which he replied, 'Fuck yes I stuck him.' "

" Mary followed Rick outside of the house and Rick told her to tell the police that Tappert had fallen into the knife."

Addressing the issue of marital privilege, the visiting circuit judge noted that defendant and Mary Fisher were no longer married, having divorced during the period between the first and third sentencing proceedings. The court found that the challenged statements implicated only the spousal privilege, and that it was inapplicable because the spousal privilege "terminated at the divorce."

After holding an evidentiary hearing at which defendant and the police investigator testified, the court concluded that the statements as reported were truthful. 3 Thereafter, in explaining its reasons for imposition of the twenty-five to fifty-year sentence, the court left no doubt that each of the challenged statements was taken into account.

Responding to defendant's third appeal, the Court of Appeals disagreed with the trial court's disposition of defendant's claim of statutory [442 Mich. 567] spousal privilege. While acknowledging that the spousal privilege (precluding one spouse from testifying against the other) does not survive divorce, the panel emphasized that the communications privilege encompassed within the same statute precludes testimony by one who is, or was, a spouse "with regard to any confidential communication that occurred during the marriage irrespective of a subsequent divorce." 190 Mich.App. at 603, 476 N.W.2d 762. The panel concluded that at least "the third statement at issue, which was a request by defendant to his estranged wife asking her to lie to the police, was barred by the confidential communications privilege." 4 Id.

Page 53

For reasons other than those articulated by either the trial court or the Court of Appeals, we conclude that the three statements at issue were not precluded from consideration as part of the presentence report by the privilege statute, M.C.L. § 600.2162; M.S.A. § 27A.2162.

Privileges are governed by the common law, except as modified by statute or court rule. MRE 501. Because there is no court rule governing marital privileges, the statute controls. People v. Love, 425 Mich. 691, 699, 391 N.W.2d 738 (1986) (opinion of Cavanagh, J.).

[442 Mich. 568] M.C.L. § 600.2162; M.S.A. § 27A.2162 provides, in pertinent part:

"A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent ... nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage...."

In People v. Hamacher, 432 Mich. 157, 161-162, 438 N.W.2d 43 (1989), this Court distinguished between the spousal privilege and the marital communication privilege:

"Section 2162 of the RJA provides two distinct privileges. The first, the spousal privilege, is only applicable when the witness and the spouse are married at the time of trial. This privilege bars one spouse from testifying for or against the other without the other's consent except in (1) actions for divorce, (2) prosecutions for bigamy or for a crime committed against the children of either or both, (3) actions growing out of a personal wrong or injury done by one to the other or the refusal or neglect to furnish the spouse or children with suitable support, (4) cases of desertion or abandonment, and (5) certain cases relating to marriage and title to property.

"The second privilege, the communication privilege, bars one spouse from testifying 'as to any communications made by one to the other during the marriage' without the consent of the other. The communication privilege applies whether the testimony is sought 'during the marriage or afterwards,' as long as the communication occurred during the marriage. Section 2162 of the RJA states no exceptions with respect to the communication privilege." 5

[442 Mich. 569] Because the spousal privilege is not available except during the marriage, and defendant and Mary Fisher were divorced when Judge McCauley conducted the sentencing proceeding, it is clear that only the applicability of the communications privilege could be at issue. However, the prosecution contends that the marital communication privilege is inapplicable because it is testimonial in nature; since Mary Fisher was not "examined as a witness" either at trial or during the evidentiary hearing, her statements given to the police and written into the presentence report were not subject to...

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35 practice notes
  • Brown v. State, No. 83
    • United States
    • Court of Appeals of Maryland
    • June 9, 2000
    ...the "prohibition against adverse spousal testimony," and sometimes even referred to as "spousal privilege," see, e.g., People v. Fisher, 442 Mich. 560, 566, 503 N.W.2d 50, 53 (1993), as relevant to the issues presented, is, generally, a rule of testimonial incompetency. The rule governs whe......
  • Sington v. Chrysler Corporation, Docket No. 119291, Calendar No. 7.
    • United States
    • Supreme Court of Michigan
    • July 31, 2002
    ...v. Frederick & Herrud, Inc., 443 Mich. 358, 505 N.W.2d 820 (1993); In re Hatcher, 443 Mich. 426, 505 N.W.2d 834 (1993); People v. Fisher, 442 Mich. 560, 503 N.W.2d 50 (1993). 27. Sington; Hardiman, supra; Cornell, supra; Koontz, supra; Robertson, supra; Pohutski, supra; Hanson, supra; Brown......
  • State v. Perez, No. 2005-2364.
    • United States
    • United States State Supreme Court of Ohio
    • December 2, 2009
    ...contends that the admission of Perez's tape-recorded statements to Debra did not violate the statute. {¶ 114} In People v. Fisher (1993), 442 Mich. 560, 503 N.W.2d 50, the court construed Michigan's privilege statute, which 920 N.E.2d 126 provided that one spouse could not, without the othe......
  • State v. Jones, No. 2008–0525.
    • United States
    • United States State Supreme Court of Ohio
    • December 6, 2012
    ...(Emphasis sic.) Id. at ¶ 113. {¶ 123} In so holding, we agreed with the Michigan Supreme Court's analysis in People v. Fisher, 442 Mich. 560, 503 N.W.2d 50 (1993). Perez at ¶ 114. In Fisher, the court held that Michigan's spousal-privilege statute, which provided that one spouse could not, ......
  • Request a trial to view additional results
36 cases
  • Brown v. State, No. 83
    • United States
    • Court of Appeals of Maryland
    • June 9, 2000
    ...the "prohibition against adverse spousal testimony," and sometimes even referred to as "spousal privilege," see, e.g., People v. Fisher, 442 Mich. 560, 566, 503 N.W.2d 50, 53 (1993), as relevant to the issues presented, is, generally, a rule of testimonial incompetency. The rule governs whe......
  • Sington v. Chrysler Corporation, Docket No. 119291, Calendar No. 7.
    • United States
    • Supreme Court of Michigan
    • July 31, 2002
    ...v. Frederick & Herrud, Inc., 443 Mich. 358, 505 N.W.2d 820 (1993); In re Hatcher, 443 Mich. 426, 505 N.W.2d 834 (1993); People v. Fisher, 442 Mich. 560, 503 N.W.2d 50 (1993). 27. Sington; Hardiman, supra; Cornell, supra; Koontz, supra; Robertson, supra; Pohutski, supra; Hanson, supra; Brown......
  • State v. Perez, No. 2005-2364.
    • United States
    • United States State Supreme Court of Ohio
    • December 2, 2009
    ...contends that the admission of Perez's tape-recorded statements to Debra did not violate the statute. {¶ 114} In People v. Fisher (1993), 442 Mich. 560, 503 N.W.2d 50, the court construed Michigan's privilege statute, which 920 N.E.2d 126 provided that one spouse could not, without the othe......
  • State v. Jones, No. 2008–0525.
    • United States
    • United States State Supreme Court of Ohio
    • December 6, 2012
    ...(Emphasis sic.) Id. at ¶ 113. {¶ 123} In so holding, we agreed with the Michigan Supreme Court's analysis in People v. Fisher, 442 Mich. 560, 503 N.W.2d 50 (1993). Perez at ¶ 114. In Fisher, the court held that Michigan's spousal-privilege statute, which provided that one spouse could not, ......
  • Request a trial to view additional results

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