State v. T. Fisher ( 2021 )

10/05/2021
DA 19-0301
Case Number: DA 19-0301
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 255STATE OF MONTANA,
Plaintiff and Appellee,
v.
TODD CARLISLE FISHER,
Defendant and Appellant.
APPEAL FROM: 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
COUNSEL OF RECORD:
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
Submitted on Briefs: July 28, 2021
Decided: October 5, 2021
Filed:
c ir-641.—if
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶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.
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¶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.
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¶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.
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¶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.
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¶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.
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¶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 taint of improper burden-shifting.
¶22 Trial lasted seven days. The jury found Fisher guilty of the homicide and of
tampering with evidence, for staging a burglary. At a sentencing hearing a few months
later, the District Court imposed a 70-year prison term for the two offenses. The District
Court also ordered Fisher to pay $25,250 in costs for the assistance of assigned counsel.
Fish challenges this financial penalty as a violation of requirements in Montana law that
courts first inquire into a defendant’s ability to pay.
STANDARD OF REVIEW
¶23 This Court exercises plenary review over constitutional questions like the scope of
due process. State v. Fillion, 2020 MT 283, ¶ 8, 402 Mont. 84, 475 P.3d 725. We review
a lower court’s findings of fact to determine whether they are clearly erroneous. State v.
Colvin, 2016 MT 129, ¶ 10, 383 Mont. 474, 372 P.3d 471.
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¶24 We review legal questions about prosecutorial error de novo, considering the
context of the entire proceeding and the impact on a defendant’s substantial rights. State
v. Labbe, 2012 MT 76, ¶ 11, 364 Mont. 415, 276 P.3d 848; State v. Lawrence, 2016 MT
346, ¶ 14, 386 Mont. 86, 385 P.3d 968.
¶25 Criminal sentences are reviewed for legality only. State v. Hirt, 2005 MT 285, ¶ 11,
329 Mont. 267, 124 P.3d 147. “A district court’s determination of a defendant’s ability to
pay an imposed fine, fee, cost, or other charge is essentially a finding of fact that this Court
will reverse only if it is clearly erroneous.” State v. Hotchkiss, 2020 MT 269, ¶ 13, 402
Mont. 1, 474 P.3d 1273 (internal quotations omitted).
DISCUSSION
¶26 Issue One: Were Fisher’s due process rights violated by the State’s conduct
investigating and releasing the crime scene?
¶27 Both the United States Constitution and the Montana Constitution assure criminal
defendants due process of law. Part of due process includes “what might loosely be called
the area of constitutionally guaranteed access to evidence.” United States v.
Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446 (1982). The seminal United
States Supreme Court case describing this guarantee is Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963). Challenges like Fisher’s are thus often termed Brady matters.
¶28 Brady concerned prosecutors suppressing evidence favorable to the defense;
someone else had confessed to a homicide defendant’s crime, and prosecutors kept that to
themselves. Failing to turn over such evidence, regardless of the good or bad faith of the
State’s prosecutors, violates due process because it deprives defendants of a “meaningful
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opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485,
104 S. Ct. 2528, 2532 (1984); State v. Giddings, 2009 MT 61, ¶ 48, 349 Mont. 347, 208
P.3d 363. While Montana statutes governing discovery require the hand-over of Brady
material and more, in constitutional challenges like Fisher’s, the defendant bears the burden
of showing three requirements of a Brady violation: (1) favorable evidence in State hands;
(2) suppression by the State, willful or not; and (3) prejudice to the defendant. State v.
Ellison, 2012 MT 50, ¶ 16, 364 Mont. 276, 272 P.3d 646.
¶29 Parties have further litigated the contours of all three elements. For example, we
include within the concept of “favorable evidence” things with the “potential to lead
directly to admissible exculpatory evidence.” State v. Weisbarth, 2016 MT 214, ¶ 24, 384
Mont. 424, 378 P.3d 1195. However, we also require “more than mere speculation” that
evidence would be favorable. State v. Robertson, 2019 MT 99, ¶ 33, 395 Mont. 370, 440
P.3d 17. And we have noted that the exculpatory value of lost evidence can be apparent
due simply to its centrality in the case and its inherent connection to material questions.
See State v. Halter, 238 Mont. 408, 777 P.2d 1313 (1989) (concerning a stolen bull, with
key branding evidence, lost to slaughter); State v. Colvin, 2016 MT 129, 383 Mont. 474,
372 P.3d 471 (concerning a car containing evidence of the distance of a gunshot, which
was key to proving or disproving the essential element of intent). Further, while a showing
of “prejudice to the defendant” does not require showing the evidence would guarantee
acquittal, we do ask “that the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.” Robertson, ¶ 33
(internal quotations omitted); Colvin, ¶ 13.
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¶30 We have also considered different characterizations of what is and is not State
suppression. The State has no constitutional duty to collect evidence that would assist the
defense. State v. Wagner, 2013 MT 47, ¶ 26, 369 Mont. 139, 296 P.3d 1142. However,
the State cannot “frustrate” the defense’s evidence-gathering efforts “through either
affirmative acts or their rules and regulations.” State v. Swanson, 222 Mont. 357, 361-62,
722 P.2d 1155, 1158 (1986); State v. Saxton, 2003 MT 105, ¶ 32, 315 Mont. 315, 68 P.3d
721. And when defendants challenge the State’s failure to preserve exculpatory evidence,
we have required that the exculpatory value of the evidence was apparent before its
destruction or loss, that the defendant could not have gotten it by other reasonable means,
and that the evidence was expected to play a significant role in the defense. Halter, 238
Mont. at 413; see also Trombetta, 467 U.S. at 489.
¶31 Case law has also evaluated what due process requires for potentially exculpatory
evidence, evidence with relatively speculative defensive value. For this kind of evidence,
we generally look for proof of bad faith on the part of the State. Giddings, ¶ 48 (citing
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333 (1988)). “Failure-to-collect” or
“failure-to-preserve” claims in this category can also only succeed if the State acted with
bad faith, for example out of animosity to the defense or to deceptively secure conviction.
Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989); see Bad Faith, Black’s Law Dictionary,
171 (Bryan Garner, 11th ed. 2019) (“dishonesty of belief, purpose, or motive”).
¶32 Applied to Fisher’s case, all these rules create a series of alternative hurdles: for a
true Brady claim, Fisher must show that evidence lost from Wilbur’s bedroom was
favorable to him or had apparent exculpatory value. Without such a showing, the evidence
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lost or uncollected was merely potentially exculpatory. If the evidence was potentially
exculpatory, Fisher must prove bad faith from State investigators. And finally, Fisher’s
failure-to-preserve and frustration-of-collection arguments regarding potentially
exculpatory evidence retain the Brady requirement that the evidence lost was in possession
of the State.
¶33 Fisher misses the first hurdle because the evidence he lacks cannot be fairly
characterized as “exculpatory” in the Brady sense. Fisher argues that if Waldo’s evidence
collection were more thorough before the cleaners scrubbed the room, it might have
revealed means to rule out Fisher as the culprit—but this is pure speculation. Fisher
conflates exculpatory and potentially exculpatory evidence, and he points generally to the
idea that the missing items are self-evidently important, being irreplaceable blood,
footprints, or hairs. But unlike in Halter and Colvin, where the lost evidence was material
to both the State’s and the defense’s cases regarding an essential element of the crime, the
evidence Fisher complains is missing was left behind because it was inessential to the case
absent some new revelation. The fact that Waldo might have missed the bloody footprint
of, say, a CIA spy, does not render the carpet favorable or exculpatory—that evidence is
potentially exculpatory because of the speculation required.
¶34 Fisher misses the next hurdle—bad faith at the collection stage—because he cannot
show that Waldo’s forensic efforts were limited by bad faith motivations. Although
Fisher’s defense relied heavily on the inference that the jury might doubt his guilt if the
State’s evidence could have been more exhaustive, Fisher has done little to argue that the
scope of the crime scene investigation was limited in bad faith. In fact, Waldo’s decision
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to call his work complete and vacate the house, allowing Fisher back on the property the
following day, is patently inconsistent with any dishonest design to bolster conviction.
Releasing the crime scene allowed Fisher or anybody else to damage overlooked evidence.
The District Court was correct to credit Waldo’s testimony about the value of the evidence
collected and the lack of value of any evidence left, and it was correct to conclude that
Fisher failed to demonstrate bad faith.
¶35 At the next hurdle, Fisher argues that the actions of Sheriff Canen and Deputy
Hoagland were unlawful because they destroyed, failed to preserve, or frustrated his access
to the potentially exculpatory evidence. Not only would such arguments hinge on a
showing of bad faith, but they also require that a state actor lost evidence in the State’s
possession. The District Court correctly found the state possession requirement
dispositive.
¶36 When Waldo and his investigators left the crime scene Tuesday night and Sheriff
Canen returned Fisher home Wednesday morning, the crime scene was “released” and, the
State argues, was no longer in its custody. Fisher points out that later, the executor of
Wilbur’s estate collected keys to the house from the sheriff’s office. There had been some
confusion in the weeks after Wilbur’s death regarding who would watch the house and
animals; some of Wilbur’s family and the lawyer who drafted Wilbur’s will had called but
had not requested keys. A neighbor borrowed the keys from the sheriff’s department in
January to respond to frozen pipes, and the estate lawyer refilled the propane tank. Finally,
in February 2018, the co-administrator of Wilbur’s estate picked up the keys from the
sheriff’s department for good. While these events might create some doubt as to who
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among the neighbors, family, and others involved had control of the property’s upkeep,
they do not bear on the State’s culpability for loss of evidence. As the District Court
correctly pointed out, Fisher’s complaint hinges on Hoagland’s activity the Friday and
Saturday after the murder. At that time, Sheriff Canen had left the keys in the house, fully
out of State possession, and assumed that someone like the estate attorney was in charge
of the property.
¶37 Fisher argues in response that because Hoagland worked as a deputy, he “re-seized”
the house on behalf of the State that Friday and Saturday when he ordered the cleaning.
The District Court analyzed Hoagland’s activities and his testimony that his conduct was
“unofficial,” and the District Court credited Hoagland’s and the sheriff’s remarks. We
agree. Hoagland went to the property out of uniform, and that Friday was one in a series
of vacation days he was not at work at the department. The cleaning company mailed
Hoagland, personally, the invoice, billed to Wilbur’s estate. Sheriff Canen had told
Hoagland he could go to the property when Hoagland called asking about his horses there,
wanting to make sure Fisher would not be present if he went to check on them. Sheriff
Canen told Hoagland he could check on the animals, and he recommended securing the
exposed house, but he did not sanction the clean-up and did not consider the area within
the custody of the State.
¶38 What all these circumstances demonstrate is that after October 17, the Tuesday
following the murder, Wilbur’s property was a former crime scene, returned to Fisher but
then left vacant upon his arrest. Subsequent activities with the keys (and Hoagland’s
cleaning decision that would embroil him in drama) illustrate a community unsure, for a
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while, who might look after the place. They do not amount to State possession of the
property as evidence or State culpability for evidentiary preservation after October 17.
¶39 Because the material Fisher lacked from the crime scene was only potentially
exculpatory, because he cannot demonstrate that anything was left behind in bad faith, and
because he cannot show State responsibility for its subsequent loss, we affirm the District
Court’s order finding that Fisher’s due process rights were not violated and denying his
motion to dismiss.
¶40 Issue Two: Did the prosecutor’s comments at trial improperly distort Fisher’s
presumption of innocence and the State’s burden of proof?
¶41 The State bearing the burden of proof in a criminal trial is “[o]ne of the fundamental
principles of the criminal justice system.” State v. Price, 2002 MT 284, ¶ 33, 312 Mont.
458, 59 P.3d 1122. Sometimes, a prosecutor may try to skew that burden in the minds of
the jury, to give them the impression that a defendant must establish his or her innocence
rather than have it presumed absent the State’s proof. Such actions violate a defendant’s
rights and impair “the integrity of the judicial process.” Price, ¶ 34. Fisher asks us to view
the prosecutor’s comments about his fingerprint expert as attempting this improper
burden-shifting and corrupting his conviction. He points to our language in State v. Favel,
2015 MT 336, ¶ 26, 381 Mont. 472, 362 P.3d 1126: “The risk is simply too great that the
State’s burden of proof in the mind of a juror will be diminished by the repeated use of
burden of proof language—such as demonstrate, show, and prove—in reference to what
the defendant could have done.”
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¶42 Here, the prosecutor asked Fisher’s expert witness whether he had sought any prints
to make the comparisons he testified were valuable. When Fisher’s counsel objected, the
prosecutor responded as follows, with the jury present: “I’m not shifting the burden. I
agree the State carries a burden in this case. However, if they’re going to raise issues on
investigation, and do investigations affirmatively, and say things should have been done, I
think it’s fair to ask why didn’t they do them?”
¶43 Fisher argues that these comments suggested Fisher needed to prove that some
incriminating fingerprints were not his, which would be burden-shifting. The State argues
that the comments, in contrast, merely aimed to deflate Fisher’s claim that the lack of
fingerprints was an important source of doubt; they questioned whether that evidence was
really as crucial and easily collected as the expert claimed.
¶44 The District Court agreed with the State. When the jury was out of the room, the
judge commented to the parties that he “saw the State’s questions as a challenge to
credibility . . . to the credibility of the actual perceived value of the additional steps that
were being advocated by the witness.” We concur and affirm that the comments are not
cause for retrial. Here, the prosecutor and the judge both reinforced, more than once, that
the State bore the burden of proof and that Fisher was presumed innocent, with no duty to
bring his own evidence. The prosecutor did not use language stressing Fisher must
“demonstrate” or “prove” anything, instead interrogating the expert’s claim that the State
was wrong to call the fingerprinting inconclusive. By pointing out that the expert had
pursued no conclusive comparisons either, the prosecutor was countering the idea that
fingerprints mattered, not asking for proof of Fisher’s innocence.
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¶45 Issue Three: Did the District Court err when it ordered Fisher to pay his public
defender fees?
¶46 Section 46-8-113, MCA, allows district courts to charge convicted defendants with
the costs of their attorneys from the public defender’s office. However, this law does not
permit such charges “unless the defendant is or will be able to pay the costs.” Section 46-8-
113(4), MCA. We have required that to satisfy this limitation, a sentencing court must first
“scrupulously and meticulously examine the defendant’s ability to pay.” State v. Gable,
2015 MT 200, ¶ 22, 380 Mont. 101, 354 P.3d 566.
¶47 Here, after issuing Fisher a 70-year prison sentence, the District Court also ordered
him to pay $25,250 in fees for appointed attorneys. The District Court told Fisher this was
a diminishment from the total chargeable amount due to his “relatively stifled” earning
capacity considering what may be a life sentence. As funds from which Fisher could pay
the $25,250, the District Court cited only approximately $11,000 in social security
payments that had accumulated in Fisher’s account since he was arrested, money
potentially subject to recall.
¶48 Fisher argues that this imposition of costs did not follow the scrupulous and
meticulous examination we require and argues that any finding that he is able to pay the
fines was in error. The State concedes this point on appeal and recommends that the costs
be stricken in the interests of justice. We agree with the parties, and we reverse this
component of Fisher’s sentence and remand with instructions to strike the costs imposed.
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CONCLUSION
¶49 The District Court’s March 14, 2019 order denying Fisher’s motion to dismiss is
affirmed. Fisher’s conviction is affirmed, and the District Court’s March 28, 2019
judgment and sentencing order is affirmed. We reverse the imposition of public defender
fees and remand to the District Court to strike payment of the fees from his sentence.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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