State v. Fisher

• Decision Date: 22 April 2016
• Docket Number: No. 109,706.,109,706.
• Parties: STATE of Kansas, Appellee, v. Matthew T. FISHER, Appellant.
• Court: Kansas Supreme Court

304 Kan. 242

373 P.3d 781

STATE of Kansas, Appellee,

v.Matthew T. FISHER, Appellant.

No. 109,706.

Supreme Court of Kansas.

April 22, 2016.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jonathon L. Noble, assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by BEIER

, J.:

Defendant Matthew T. Fisher appeals his jury trial convictions of attempted second-degree murder and criminal damage to property, which arose out of a fight with a roommate.

Fisher raises seven issues on appeal: (1) whether the prosecutor ran afoul of Doyle v. Ohio, 426 U.S. 610, 618–19, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)

, during his cross-examination of Fisher; (2) whether the prosecutor committed misconduct during closing argument; (3) whether the district court judge should have instructed the jury on the lesser included offense of attempted voluntary manslaughter; (4) whether the district judge erred by telling the jury at the beginning of the trial that a mistrial attributable to jury misconduct would be a burden on the parties and taxpayers; (5) whether the criminal damage conviction was supported by sufficient evidence; (6) whether cumulative error deprived Fisher of a fair trial; and (7) whether the district judge erred in determining Fisher's criminal history score.

As detailed below, we ultimately reject Fisher's arguments and affirm his convictions and sentence.

Factual and Procedural Background

At the time of the crimes, Fisher lived with his friend Tim Worthen and Tim's ex-wife, Angelique Worthen (Angel). Tim was the sole owner of the house the three shared. Fisher and Tim spent the day drinking, first at Tim's house and then at bars. After Tim left to pick Angel up from work, Fisher headed home on foot. On the way, he encountered police officers twice, the second time right outside of the house.

As a result of the second police encounter, Fisher became belligerent. He kicked a door open inside the house, damaging the door. Then, while back outside the house, Fisher hit Tim, who then went inside next-door neighbor Corby Stevens' house. Eventually, Fisher and Angel ended up in a physical fight that left Angel with life-threatening injuries. Although Stevens' windows were open, both she and Tim denied hearing the fight between Fisher and Angel. Fisher left the scene in Tim's car, but he wrecked the car within a few blocks of the house.

Responding officers and emergency medical technicians would eventually testify that Fisher kept mentioning Tim's address. They also observed that he was covered in an amount of blood inconsistent with the seriousness of his own injuries. A medical technician would testify that Fisher's wounds

appeared to be defensive. Fisher was acting paranoid, refused an IV, and referred to an “assassin.” Based on Fisher's behavior and his repeated references to Tim's address, officers requested a welfare check at the house. Meanwhile, Fisher was transported to the hospital.

When officers arrived at the house, they found Angel lying in a large pool of blood. Her injuries were so extensive that one officer initially thought she was dead, and one of the medical technicians would eventually testify that he could not immediately tell whether the victim was a man or a woman. But Angel was able to tell the police that “Matt” had hurt her.

Soon after Fisher arrived at the hospital, he told officers that Angel had attacked him and that he had defended himself. He also expressed concern for Tim's safety and said that he feared Angel and Stevens had kidnapped him. He claimed to have left the house to go to the hospital for help. After receiving Miranda warnings, Fisher also admitted to telling Angel he would kill her if she did not reveal Tim's whereabouts.

The next morning, Fisher spoke to a different officer, telling her that he had hit Angel because she would not reveal Tim's location. He did not mention self-defense.

The State charged Fisher with attempted murder in the second degree or, in the alternative, aggravated battery. He also was charged with criminal damage to property because of the door he kicked open inside the house.

At trial, after empaneling the jury, the district judge told jurors about the rules and restrictions governing their service. The judge then stated:

“Any juror who violates these restrictions, as I've explained to you, jeopardizes the fairness of these proceedings and a mistrial could result which would require the entire process to start over. As you can imagine, a mistrial is a tremendous expense and inconvenience to the parties, the Court, and the taxpayers.”

At trial, Angel testified that she could not remember much of what happened on the night of the crimes. Tim testified that he had heard Stevens yell out her window that she would not let Tim leave her house.

During direct examination, Fisher said he could not “really remember” talking to police at different times. Fisher testified that Angel had said she received training in hand-to-hand combat while in the Navy. Fisher also testified that Angel started the fight with him by jumping on his back. He asserted that he acted in self-defense when he struck her, pushed her, and stepped on her chest after she had fallen to the ground. Defense counsel asked Fisher if he “ever [got] the opportunity to explain the details of what happened in context.” Fisher responded:

“I had.... [S]everal officers had asked me what had happened.... And I was of the frame of mind that, you know, they're not going to believe you because the first officer that asked me that, I remember asking, he replied like he didn't believe me so, you know, it is kind of hard to believe.”

During cross-examination, the prosecutor and Fisher engaged in the following exchange:

“PROSECUTOR: When you were aware that maybe you didn't quite tell the police exactly what happened, did you ever contact police and tell them you needed to talk to give a more definitive statement about what happened ... that night?

“FISHER: No.

“PROSECUTOR: Never said a word about these things until today?

“DEFENSE COUNSEL: Your honor, in light of the legal proceedings, I believe that encroaches his Constitutional rights, we would object.

“PROSECUTOR: I made—I know the case law, Judge, there's absolutely no reference made to his status. It was only an inquiry as to whether he elected—

“DISTRICT JUDGE: Overruled, you can ask the question about making contact or not making contact.”

During the jury instructions conference, the district judge said he would instruct the jury on attempted second-degree murder, aggravated battery by knowingly causing great bodily harm, and reckless aggravated battery. The judge also intended to give a self-defense instruction. The district judge did not instruct on attempted voluntary manslaughter as a lesser included offense, and Fisher did not object to that omission.

The criminal damage instruction required the State to prove:

“1. [Angel] had an interest in property described as a door;

2. [Fisher] knowingly damaged, destroyed, defaced or substantially impaired the use of property by means other than by fire or explosive;

3. [Fisher] did so without consent of [Angel].”

During closing argument, the prosecutor told the jury,

“And I suggest to you when you look at that evidence what you can see by your common knowledge and experience is that it didn't start [alongside] of that car, and, one, if you believe it's self-defense, it doesn't apply because it's excessive. He had her loosened. He had her away from him. And then he beats the living hell out of her and kills her—about kills her.”

The prosecutor then suggested what had happened on the night of the crimes, focusing on photographs of the scene, the extent of Angel's injuries, and Fisher's testimony that he had hit Angel seven or eight times. He continued:

“The testimony was quite clear. She's lying there motionless. You heard the tape of her trying to say who did it in the hospital.

....

“You can't even tell it's a woman anymore, but he wants you to believe it's self-defense. Whatever triggered it, whatever caused him to decide enough was enough with that woman, he took advantage of that and he beat her and beat her with the intent to kill her ... [T]here is no way in this world the State will assert to you anything but that he intentionally attempted to kill Angel.”

In his closing, Fisher's counsel argued that Angel had started the fight in an attempt to keep Tim's whereabouts hidden from Fisher. He pointed out that Angel had induced Fisher to believe she had hand-to-hand combat training. He said that Fisher was merely concerned for Tim and his own welfare and that the situation got “bad in a hurry.” Fisher caused Angel's injuries but had no intent to kill her, only to repel a perceived attack. Fisher's counsel also pointed out that Angel did not own the interior door that had been damaged.

In the rebuttal portion of his closing, the prosecutor stated:

“The State put every bit of evidence it had and most of that came from that man, himself, whether it was in the hospital or his assertion today that it was self-defense. How self-serving. How self-serving.

“... Well, let's take his theory, it was with an elbow, of course they weren't on his hands. He beat the living heck out of her with his elbow. Pick one. Pick self-defense. His super attack from behind that was going to result in his belief, in imminent death or great bodily harm? Bull ... Take his version. His self-defense isn't allowed at that point. And one way or the other, that blood's still where it was and all over everywhere and she's still laying there dying. I, in my entire life, ... never can you say, well, it wasn't an attempted murder because she didn't die. State will continue to assert self-defense isn't worth the response. He intentionally, for whatever reason, whatever it was that triggered

...