MT Supreme Court affirms conviction in murder case

By 
Hunter Herbaugh
Sunday, October 10, 2021
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Todd Fisher

An appeal in the case of Todd Carlisle Fisher has resulted in the trial and conviction of a Glendive native being upheld by the Montana Supreme Court, however the fees the defendant was ordered to pay have been struck. Fisher was convicted of deliberate homicide and tampering with evidence in 2018 for the murder of his father in 2017. In 2019, he was sentenced to the Montana State Prison for 70 years and ordered to pay $25,250 in court costs.

The opinion from the court was filed on Oct. 5, with all five justices concurring on the decision. The opinion was written by Justice Mike McGrath.

Fisher’s father, Wilbur Fisher, was found shot to death in the home they shared in October 2017. Fisher reported the crime and the case was investigated by the Dawson County Sheriff’s Office. Fisher was ultimately arrested and charged with the crime, as well as accused of staging the scene to look like a home invasion.

During Todd Fisher’s trial, the Defense tried to cast doubt on Fisher’s arrest by alluding to another potential suspect; DCSO Chief Deputy Brett Hoagland. Hoagland was a neighbor and friend of Wilbur who had the crime scene cleaned after Fisher’s arrest. Due to this, the defence accused Hoagland of potentially destroying evidence.

In Fisher’s appeal, Apellate Defenders Chad Wright and Kristina Neal argued three issues in which they believed Fisher’s rights had been violated during the initial murder investigation and subsequent trial.

The first issue presented was that Fisher’s due process rights were violated by the State’s conduct during the investigation and releasing of the crime scene. The second claim was that the prosecutor’s comments at trial improperly distorted Fisher’s presumption of innocence and the State’s burden of proof. The third claim was that the District Court erred when it ordered Fisher to pay his public In all, the court affirmed the district court’s ruling on the first two issues but reversed the lower court’s ruling on the third issue.

The primary argument of the first issue was that the State destroyed exculpatory evidence, meaning evidence that could have proven Fisher’s innocence, when the scene was released and subsequently cleaned. In the court’s opinion, McGrath noted several factors that lead to the court rejecting this argument. Firstly, the exculpatory value of the potential evidence that was lost when the scene was cleaned had not been previously proven, so it was at best “potentially exculpatory.” Because of this, Fisher would have to prove that the potential evidence was destroyed in bad faith, which the court determined he failed to do.

“Fisher argues that if ... 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,” McGrath wrote. “...the evidence Fisher complains is missing was left behind because it was inessential to the case absent some new revelation.”

The court also noted that when Hoagland had the scene cleaned, it had been released and was no longer in the State’s custody. Fisher himself and a couple other individuals had been allowed back into the home prior to his arrest and the cleaning. The court also noted that Hoagland did not act as an officer of the state when he had the scene cleaned, but was instead acting in a personal capacity, even having the bill for the cleaning sent to his personal address.

“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 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. 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,” McGrath wrote.

In the second issue, the defence accused the State of burden-shifting during the trial. They argued this happened when the prosecution team questioned one of its expert witnesses.

During the investigation, investigators did not acquire any usable fingerprint samples from Fisher to compare them to samples taken from the crime scene, citing the difficulty in doing so due to Fisher’s callused hands. The witness, a fingerprint expert who collected samples from the scene, testified that there were methods available that would have allowed investigators to collect samples for comparison from Fisher’s hands. The prosecution then asked that if better methods were available, why hadn’t the expert used them.

The defense argued that this line of questioning was unfairly shifting the burden of proof to the defense, as it equated to Fisher having to prove that some incriminating finger prints were not his. However the prosecution argued that since the witness was testifying better methods were available, it was fair to ask why they hadn’t been used. Multiple times during the questioning, the prosecution and the judge reiterated that the burden of proof was on the prosecution.

The Supreme Court agreed with the prosecution, noting that the language used in questioning did not equate to burden-shifting.

“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,” McGrath wrote.

The third issue from the defense argued that the lower court did not consider Fisher’s ability to pay when he was ordered to pay the cost of his public defender fees. Fisher was charged $25,250, though in sentencing, the district court noted this was a smaller amount than what could have been charged due to Fisher’s “relatively stifled” earning capacity due to his 70-year sentence. The district court cited $11,000 in social security payments that accrued in Fisher’s account during the course of the investigation and trial that could be used to pay the court fees, however McGrath noted in his opinion that those funds are now potentially subject to recall.

The State conceded that leveling the fines was most likely an error and agreed that they should be stricken in the interest of justice, which they were.

In response to the Supreme Court’s ruling, Dawson County Attorney Brett Irigoin said it was proof that the jury had convicted the right man while also providing reassurance that the investigation was conducted appropriately.

“I believe the Supreme Court ruling is very vindicating as the Justices disagreed with each of the Defendant’s arguments. It is vindicating for the Department of Criminal Investigation, the Dawson County Sheriff’s Office and Chief Deputy Hoagland personally that the investigation was conducted appropriately. It is vindicating for myself and Mr. Olson. The Supreme Court affirmed that we did not violate the Defendant’s rights in any way in our prosecution. Hopefully the community can take solace in this affirmation of the conviction of Mr. Fisher, that the right man is behind bars,” Irigoin said.

Neal did not return a request for comment.

Reach Hunter Herbaugh at rrreporter@rangerreview.com.

“Hopefully the community can take solace in this affirmation of the conviction of Mr. Fisher, that the right man is behind bars,”

Dawson County Attorney Brett Irigoin

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