State v. Fisher

• Decision Date: 05 October 2021
• Docket Number: DA 19-0301
• Citation: 2021 MT 255
• Parties: STATE OF MONTANA, Plaintiff and Appellee, v. TODD CARLISLE FISHER, Defendant and Appellant.
• Court: Montana Supreme Court

2021 MT 255

STATE OF MONTANA, Plaintiff and Appellee, v. TODD CARLISLE FISHER, Defendant and Appellant.

No. DA 19-0301

Supreme Court of Montana

October 5, 2021

Submitted on Briefs: July 28, 2021

District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DC 2017-090 Honorable Michael B. Hayworth, Presiding Judge

For Appellant:

Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Tammy K Plubell, Appellate Bureau Chief, Katie F. Schulz, Assistant Attorney General Helena, Montana

Brett J. Irigoin, Dawson County Attorney, Glendive, Montana

Mike McGrath, Chief Justice

¶1 Todd Carlisle Fisher (Fisher) appeals a March 14, 2019 order from the Seventh Judicial District Court in Dawson County denying his motion to dismiss the deliberate homicide case against him. Fisher also appeals his jury conviction and the judgment and sentencing order.

¶2 We restate the issues on appeal as follows:

Issue One: Were Fisher's due process rights violated by the State's conduct investigating and releasing the crime scene?

Issue Two: Did the prosecutor's comments at trial improperly distort Fisher's presumption of innocence and the State's burden of proof?

Issue Three: Did the District Court err when it ordered Fisher to pay his public defender fees?

¶3 We affirm as to Issues One and Two and reverse and remand on the matter of Issue Three.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The medical examiner estimated Wilbur Fisher's time of death as Saturday evening, October 14, 2017. He was shot in the face in his bed. Wilbur was the father of Todd Fisher (Fisher). They lived together in an isolated area not far from Glendive, on a 320-acre property of rolling pastureland draining into Sevenmile Creek on its way toward town. Wilbur had a horse and a cat. He was 80 years old and a triple amputee since an electrical accident in the 1960s. His physical and mental fitness were a matter of minor conflict at trial.

¶5 On Monday morning, October 16, Fisher called 911 to report discovering his father's body. He stated several details "I've been on the river bottoms for two days the side door was kicked in . . . and the gun, the .237 is missing." Fisher then said his dad had been murdered. The dispatcher testified she found Fisher's lack of urgency and delayed detail of the death unusual.

¶6 When a deputy arrived, Fisher calmly repeated his impression of the scene and his whereabouts before that morning. Dawson County Sheriff Ross Canen and other deputies arrived that same day, and they arranged for the state Division of Criminal Investigation (DCI) to send personnel to assist the investigation. Sheriff Canen took Fisher to Glendive for an interview that afternoon, then put Fisher up in a hotel room that night while investigators probed the house.

¶7 DCI agent Jeremy Waldo directed the collection of evidence. The process lasted into late Tuesday evening. An officer had watched the crime scene overnight between Monday and Tuesday, but all authorities were off the property after Waldo concluded work Tuesday night. Sheriff Canen interviewed Fisher again on Tuesday but did not arrest him. Fisher stayed at the hotel again that night. Wednesday morning, with the investigators' work complete, the sheriff drove Fisher back to the house, where he remained for two nights.

¶8 On Thursday, agents interviewed other potential suspects and collected information. On Friday, back on the property, the sheriff and deputies arrested Fisher. They left the keys to the house in the kitchen.

¶9 Fisher was charged with deliberate homicide and felony tampering with evidence. The State's case relied on oddities in his behavior, physical evidence, and his personal and financial motives for the crime. Waldo and his investigators concluded that the scene looked more like a staged burglary: the busted-in side door was damaged only from the inside, and though Wilbur's safe was ajar, rooms were tidy and valuable items undisturbed. Fisher's narrative under questioning changed or contradicted itself several times, and he spun an unlikely hypothesis of a CIA plot.

¶10 Fisher and his father had fought. Fisher had little income, from social security and cutting firewood, and he clashed with his father over financial support, over his own mental health, and over caregiving for Wilbur's physical health. Wilbur was in decline but dismissed Fisher's wishes to move him to a home. The gun Fisher said was missing from the kitchen lay in the bushes outside the house, one cartridge spent. Tests showed gunshot residue on Fisher's jeans and sweatshirt. The prosecutor told the jury the case was "sadly, sadly simple," describing Fisher violently snapping under the stress.

¶11 Fisher's defense hammered evidentiary defects and a narrative about an alternative suspect: Sheriff's Deputy Brett Hoagland. Hoagland and his wife lived along Sevenmile Creek, about a mile and a half from the Fishers. Their land was smaller, so they pastured their draft horses on Wilbur's acreage. After some years of friendship, Hoagland had heard Wilbur might have named him in his will. That was apparently true: the Hoaglands were the secondary beneficiaries after Fisher. When Hoagland mentioned this on Monday, Sheriff Canen ordered him to refrain from any work on the case.

¶12 On Friday, however, with Fisher behind bars, Sheriff Canen told Hoagland he could go back to the property to check on his horses and on Wilbur's horse and cat. The sheriff also recommended Hoagland lock up the place-for one thing, the door had been removed by Waldo's team. Hoagland and Sheriff Canen stressed he was there off the clock, in his capacity as friend and neighbor to the deceased.

¶13 Hoagland did more than lock the door. The bedroom remained bloody, and things stank. Worried about what rodents and bugs would do, Hoagland called a janitorial service. The service came on Saturday and deep-cleaned the bedroom. It was the same janitorial company the department typically used for crime scenes, and the cleaner initially thought it was an official job. He later billed Wilbur's estate, however, and mailed the invoice to Hoagland's personal address.

¶14 Agent Waldo heard about Hoagland's clean-up a couple days later and said he was pretty upset: "I felt like it was a boneheaded move, and that he had created a lot of problems for himself and this investigation."

¶15 Fisher agreed. Fisher argued Hoagland was a suspect with financial motive to kill and that he had scrubbed the scene of evidence that could dispute Fisher's guilt. Prior to trial, Fisher filed a motion to dismiss the charges against him, citing his constitutional due process rights to have access to exculpatory evidence. The District Court held a thorough hearing on the matter but concluded that the timing of the release of the crime scene, Hoagland's lack of "state actor" status that Friday and Saturday, and the absence of bad faith vitiated any due process concerns.

¶16 At trial, Fisher's attorneys developed the Hoagland narrative. They cited Fisher's diagnosis of Tourette's syndrome and the possibility of Asperger's to explain his impassive temperament and his non-linear or fantastic explanations. They stressed that Wilbur provided for Fisher, downplaying financial tensions or Fisher's cognizance of any potential windfall. And they excoriated the State for sloppy treatment of the crime scene.

¶17 In addition to taking photographs, Fisher argued, Waldo's team should have preserved the bed sheets and items like Wilbur's prosthetics that were spattered in blood. These were lost to Hoagland's cleaners. And Waldo concluded without collecting and preserving trace evidence-hairs and other tiny samples Fisher speculated could exonerate him-from the broader scene of the crime. Fisher also questioned if investigators did enough to pursue fingerprint comparisons.

¶18 One reason the prosecution did not rely on fingerprint evidence was that analysts had lifted only one usable print, from the handle of Wilbur's safe. They could not say whether it was Fisher's or someone else's because authorities could not get accurate fingerprint samples from Fisher's calloused and stiff fingers, and they had tested no others' prints for comparison with the print on the safe.

¶19 Fisher called an expert witness at trial who cast doubt on these explanations. The expert said he considered several more prints to be legible. He testified that there were better methods for getting fingerprints from hands like Fisher's, which would have allowed the State to make a comparison that might rule Fisher out. In response to this testimony, the prosecutor questioned the expert why, if superior comparisons were possible, he had not attempted to acquire them.

¶20 Fisher objected to this line of questioning. His counsel cast the inquiry as an improper attempt by the prosecutor to insinuate that Fisher had the burden of proving his innocence, rather than the other way around. The judge told the jurors he would allow a "limited inquiry," and he reiterated the State's burden and that Fisher had no duty to bring substantive evidence. Later, during his final rebuttal statements, the prosecutor repeated his fingerprint analysis counterargument: if Fisher's expert "said he could have done one," the prosecutor asked, "but, then, he didn't, then the question is: well, why not? . . . [I]f it's so dang important then why didn't [the expert] do it?"

¶21 Fisher's lawyer again objected, and the judge issued another cautionary statement to the jury noting that Fisher "has no burden here." Fisher appeals this matter as well, asking this Court to remand for a new trial given the...