PEOPLE OF MI V MICHAEL DEVON FISHER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 5, 2010
Plaintiff-Appellee,
v
No. 286412
Calhoun Circuit Court
LC No. 2007-002805-FC
MICHAEL DEVON FISHER,
Defendant-Appellant.
Before: Beckering, P.J., and Cavanagh and M. J. Kelly, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of two counts of first-degree
premeditated murder, MCL 750.316(a); two counts of possession of a firearm during the
commission of a felony, MCL 750.227b(a); and carrying a concealed weapon, MCL 750.227.
Defendant was sentenced to life imprisonment without parole for each of the first-degree murder
convictions, 2 years’ imprisonment for each of the felony-firearm convictions, and 23 to 60
months’ imprisonment for his carrying a concealed weapon conviction. Defendant appeals as of
right. We affirm.
On December 28, 2006, defendant shot and killed his wife, Candy Fisher, and his 12year-old son, Michael Fisher, Jr. at their home. At trial, defendant asserted an insanity defense.
First, defendant argues that MRE 404(b) barred testimony from defendant’s former wife,
Annette Daley, and defendant’s stepdaughter, Nicole Burgdorf, because their testimony was
irrelevant and the prejudicial effect substantially outweighed the probative value of the
testimony. At trial, Daley testified that defendant physically assaulted her during their
relationship and threatened to kill her on multiple occasions. According to Daley, when
defendant threatened to kill her, he told her that he would avoid criminal responsibility for the
murder by pleading insanity. Additionally, Burgdorf testified that defendant talked of robbing
banks and he stated that he would plead insanity to avoid any criminal responsibility for
committing any crimes.
Generally, a trial court’s decision to admit evidence is reviewed for an abuse of
discretion. People v Taylor, 252 Mich App 519, 521-522; 652 NW2d 526 (2002). “A trial court
may be said to have abused its discretion only when its decision falls outside the principled range
of outcomes.” People v Blackston, 481 Mich 451, 460; 751 NW2d 408 (2008). The decision to
admit evidence “frequently involves a preliminary question of law, such as whether a rule of
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evidence or statute precludes the admission of the evidence. We review questions of law de
novo. Therefore, when such preliminary questions are at issue, we will find an abuse of
discretion when a trial court admits evidence that is inadmissible as a matter of law.” People v
Katt, 468 Mich 272, 278; 662 NW2d 12 (2003).
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
Pursuant to MRE 404(b), evidence of other acts committed by a defendant is inadmissible “if the
proponent’s only theory of relevance is that the other acts shows defendant’s inclination to
wrongdoing in general to prove that the defendant committed the conduct in question.” People v
VanderVliet, 444 Mich 52, 63; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).
Evidence is admissible under MRE 404(b) if the evidence is offered for a proper purpose, the
evidence is relevant, and the probative value of the evidence substantially outweighs the
potential of unfair prejudice. Id. at 74-75.
This Court must initially consider whether this evidence was admitted for a proper
purpose. The plain language of MRE 404(b)(1) considers premeditation, intent and plan to be
proper purposes. The prosecution submitted the evidence to demonstrate defendant premeditated
the murders and planned and intended to kill the victims. Based on the plain language of MRE
404(b)(1), the evidence was offered for a proper purpose. MRE 404(b)(1).
If the evidence was admitted for proper purpose, then this Court must determine if the
evidence was relevant. VanderVliet, supra at 74-75. MRE 401 provides:
“Relevant evidence” means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.
A material fact is defined as one that is “in issue” in that “it is within the range of litigated
matters in controversy.” Id. Because defendant’s state of mind was in issue and was material to
the case, the fact that defendant on several previous occasions threatened to kill Daley and stated
to both Daley and Burgdorf that he would avoid criminal responsibility for any criminal act by
pleading insanity was logically relevant to whether defendant was truly insane at the time of the
murders and made it more probable than not that he was not insane. Consequently, the evidence
was relevant. See People v Cramer, 97 Mich App 148, 159-161; 293 NW2d 744 (1980)
(Because the defendant pleaded an insanity defense, his state of mind was in issue and the
prosecution was permitted to present relevant evidence to establish defendant’s state of mind on
the day of the murder).
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This Court must next determine whether the evidence was more probative than
prejudicial. VanderVliet, supra at 74-75. MRE 403 provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.
Here, defendant’s threats to Daley and defendant’s statements to both Daley and Burgdorf about
pleading insanity to avoid criminal responsibility were clearly probative of defendant’s state of
mind at the time of the murders. Though this evidence of defendant’s state of mind was
probative, the evidence that defendant physically abused Daley, attempted to set her afire, and
that he considered robbing a bank was also prejudicial. However, defendant fails to establish
that he was unfairly prejudiced by this evidence as required by MRE 403. See People v Pickens,
446 Mich 298, 336; 521 NW2d 797 (1994) (“The inquiry pursuant to MRE 403, however, is
whether the disputed evidence was unfairly prejudicial. After all, presumably all the evidence
presented by the prosecutor was prejudicial because it attempted to prove that defendant
committed the crime charged.”)
For the foregoing reasons, the trial court did not abuse its discretion when it admitted the
challenged testimony.
Second, defendant contends that statements he made to a word processing assistant and a
security guard at the Kalamazoo Regional Psychiatric Hospital (KRPH) while he sought
admission to the hospital were protected by psychologist-patient privilege. Thus, the trial court
should have suppressed the evidence. “This Court reviews de novo a trial court’s ultimate
decision on a motion to suppress evidence.” People v Akins, 259 Mich App 545, 563-564; 675
NW2d 863 (2003). Though this Court reviews the entire record de novo, a trial court’s factual
findings are reviewed for clear error. People v Daoud, 462 Mich 621, 629; 614 NW2d 152
(2000). “The trial court’s factual findings are clearly erroneous if, after review of the record, this
Court is left with a definite and firm conviction that a mistake has been made.” People v Givans,
227 Mich App 113, 119; 575 NW2d 84 (1997).
MCL 333.18237 provides, in pertinent part:
A psychologist licensed or allowed to use that title under this part or an individual
under his or her supervision cannot be compelled to disclose confidential
information acquired from an individual consulting the psychologist in his or her
professional capacity if the information is necessary to enable the psychologist to
render services.
“The purpose of the privilege statute is to protect the confidential nature of the psychologistpatient relationship.” People v Lobaito, 133 Mich App 547, 562; 351 NW2d 233 (1984). In
addition, the admissibility of privileged communications is governed by MCL 330.1750, which
prohibits the disclosure of “privileged communications” in a criminal case unless the patient has
waived the privilege or an exception applies. MCL 333.1750(1). The Mental Health Code
defines “privileged communications” as “a communication made to a psychiatrist or
psychologist in connection with the examination, diagnosis, or treatment of a patient, or to
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another person while the other person is participating in the examination, diagnosis, or treatment
or a communication made privileged under other applicable state or federal law.” MCL
330.1700(h). Statutory provisions are narrowly defined. People v Childs, 243 Mich App 360,
364-365; 622 NW2d 90 (2000). Privileges therefore are not easily found or endorsed by the
courts. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994).
In this case, the psychologist-patient privilege does not apply to defendant’s statements
that he made to the word processing assistant and the security guard. As noted in Lobaito, supra
at 562, the purpose of the privilege is to protect the relationship between the psychologist and the
patient. Defendant has failed to establish any such relationship existed. Defendant was never
admitted to the hospital and never consulted with a psychologist at KRPH. Defendant relies on
People v Mineau, 194 Mich App 244; 486 NW2d 72 (1992), and People v Farrow, 183 Mich
App 436; 455 NW2d 325 (1990), to support his claim that his communication to Keiser and
Garza was privileged. Defendant’s reliance on these cases is misplaced because in both cases the
defendants consulted with mental health counselors for the purposes of treatment. Mineau,
supra at 245; Farrow, supra at 441. It is undisputed that defendant never consulted with a
mental health professional while at KRPH. The statutory privilege requires that the individual
consult a psychologist in his/her professional capacity, which did not occur here. See MCL
333.18237.
Defendant also failed to establish that the challenged statements made to Keiser or Garza
or both were “necessary to enable the psychologist to render services.” MCL 333.18237.
Further, defendant fails to demonstrate that his communication with Keiser and Garza was
“privileged” as defined by MCL 330.1700(h). The challenged statements were not “to another
person while the other person is participating in the examination, diagnosis, or treatment . . .”
MCL 330.1700(h). There was no evidence in the record to support that defendant was ever
examined, diagnosed, or treated at KRPH. Because statutory privileges are narrowly defined, the
privilege did not exist on the facts of this case. See Childs, supra at 364-365.
Third, defendant argues that the trial court should have suppressed his statements to a
police detective because the statements were elicited during a custodial interrogation before
defendant’s Miranda1 rights had been explained to him. Specifically, defendant challenges the
admission of defendant’s comment that no one was home in response to the detective’s inquiry
into defendant’s telephone number and of defendant’s request that the detective shoot him in the
head.
Both the Fifth Amendment of the United States Constitution and the Michigan
Constitution prohibit the government from compelling a defendant to testify against himself. US
Const, Am V; Mich Const, art 1, § 17. To admit a statement into evidence obtained from a
defendant during a custodial interrogation, the defendant must have voluntarily, knowingly, and
intelligently waived his Fifth Amendment rights. Akins, supra at 564. “[T]he definition of
interrogation can extend only to words or actions on the part of police officers that they should
have known were reasonably likely to elicit an incriminating response.” Rhode Island v Innis,
446 US 291, 301-302; 100 S Ct 1682; 64 L Ed 2d 297 (1980) (emphasis in original).
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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Here, defendant made the challenged statements when the detective asked him standard
identification questions, such as defendant’s name, address, telephone number, and date of birth.
Because these were basic identifying questions, these questions were not likely to elicit any
incriminating response. Contrary to defendant’s assertions, the fact that the detective knew of
defendant’s visit to the hospital the night of the murders did not make the preliminary questions
any more likely to elicit an incriminating answer. In fact, the detective testified that defendant
was calm, was able to respond appropriately to the questions, was not crying, understood where
he was at, and was coherent. Thus, there was no reason for the detective to have known that it
was “reasonably likely” that requesting defendant’s telephone number and other basic
identifying questions would elicit an incriminating response. See Innis, supra at 301-302.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
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