PEOPLE OF MI V MICHAEL DEVON FISHER
Annotate this Case
Download PDF
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UNPUBLISHED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.
BECKERING, J. (concurring).
I concur in the outcome of my colleagues in affirming defendant’s conviction. I write
separately to express my disagreement with the majority’s conclusion regarding the admissibility
of defendant’s statements to Michelle Keiser and Joel Garza, two employees of Kalamazoo
Psychiatric Hospital (KPH).
On December 28, 2006, defendant shot and killed his wife and 12-year-old son in the
living room of their home. Afterward, he drove himself to KPH and sought to be admitted.
Keiser handled admissions and discharges at the hospital. In addition to obtaining general
personal information from prospective patients, Keiser was responsible for inquiring why the
person wished to be admitted. Keiser met with defendant to ascertain his reason for presenting
to KPH. Due to potential safety concerns associated with walk-in patients arriving at KPH in
distressed mental states, safety officer Garza was required to be present during the intake
meeting with defendant. Keiser and Garza testified that throughout his approximate one-hour
stay at KPH, defendant was extremely distraught and crying so forcefully that he had difficulty
communicating. When Keiser attempted to determine why defendant sought admission,
defendant stated that he wanted to go to sleep and not wake up, that he needed rest, and that he
had done something that was unforgivable and beyond redemption.1 Defendant stated, “Even
God can’t help me now.” Calhoun Community Mental Health did not accept defendant’s private
insurance, so his request for admission to KPH was denied, and he was advised to go to Borgess
Hospital for treatment.2 Keiser feared defendant would harm himself if left alone, so she helped
1
Garza testified that defendant asked if the hospital had a medication that could put him to sleep
forever, so that he would never wake up.
2
Keiser testified that in order to approve admissions, she is required to contact the screening
(continued…)
-1-
coordinate his transfer by ambulance to Borgess Hospital and ensured that a bed was available
for him upon arrival. Garza assisted in comforting defendant and putting him on a gurney for
medical transport.
At trial, the prosecutor elicited from Keiser and Garza the statements defendant made
during the course of his attempt to be admitted to KPH. Contrary to the opinion of my
colleagues, I would hold that defendant’s statements to Keiser and Garza at the time of his
request for admission fall within the scope of privileged communications under MCL
330.1700(h), and that no statutory exception to the privilege applies under the circumstances of
this case.
Except under certain statutory exceptions, MCL 330.1750(1) explicitly protects
privileged communications against disclosure in criminal proceedings and other matters:
Privileged communications shall not be disclosed in civil, criminal, legislative, or
administrative cases or proceedings, or in proceedings preliminary to such cases
or proceedings, unless the patient has waived the privilege, except in the
circumstances set forth in this section.
MCL 330.1700(h) of the Mental Health Code, MCL 330.1001 et seq., defines the scope
of privileged communications with respect to psychiatric and psychological care as follows:
“Privileged communication” means a communication made to a psychiatrist or
psychologist in connection with the examination, diagnosis, or treatment of a
patient, or to 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 (emphasis added).
While the majority focuses on the non-medical job titles of Keiser and Garza, MCL
330.1700(h) focuses instead on the nature and purpose of the communication. Communications
are considered privileged when made to another “person”–without limitation to medically trained
or licensed persons—while that person is participating in the examination, diagnosis or treatment
of a patient. As such, Keiser’s and Garza’s job titles are irrelevant. Rather, the pertinent
question is whether Keiser (and constructively Garza, who was required by the hospital to be
present for security purposes) was participating in the examination, diagnosis or treatment of
defendant.
It is undisputed that defendant was seeking admission and treatment at KPH, and that he
could not obtain such treatment until he first met with Keiser. Keiser was required to inquire
into and ascertain defendant’s reason for seeking psychiatric care. She was the liaison between
defendant and the off-site licensed psychologist in determining whether defendant could be
admitted to KPH.3 Keiser testified that she routinely documents her observations and
(…continued)
licensed psychologist at the community mental health agency of the county in which the
prospective patient resides.
3
Keiser’s role at KPH is analogous to that of an admissions clerk in an emergency room, to
(continued…)
-2-
information obtained from prospective patients, and if the person is granted admission to KPH,
her notes become part of the patient’s medical chart. The only reason Keiser did not admit
defendant to KPH was because he did not have the proper form of insurance coverage. Given
her concerns that defendant required medical care and was not safe to be left alone, Keiser
coordinated his transfer by ambulance to Borgess Hospital. Under these circumstances, I would
conclude that Keiser was participating in the examination, diagnosis, and treatment process and
that the statements defendant made to her, in the presence of Garza whose attendance was
mandatory, fell within the scope of privileged communications under MCL 330.1700(h).
While defendant could have waived the privilege and permitted admission of his
statements to Keiser and Garza in furtherance of his claim of insanity under MCL 330.1750(1),
he chose not to do so. As such, the next pertinent question is whether any of the statutory
exceptions apply that would enable defendant’s statements to be disclosed in his criminal trial.
MCL 330.1750(2) sets forth the following exceptions to the privilege:
Privileged communications shall be disclosed upon request under 1 or more of the
following circumstances:
(a) If the privileged communication is relevant to a physical or mental condition
of the patient that the patient has introduced as an element of the patient's claim or
defense in a civil or administrative case or proceeding or that, after the death of
the patient, has been introduced as an element of the patient's claim or defense by
a party to a civil or administrative case or proceeding.
(b) If the privileged communication is relevant to a matter under consideration in
a proceeding governed by this act, but only if the patient was informed that any
communications could be used in the proceeding.
(c) If the privileged communication is relevant to a matter under consideration in
a proceeding to determine the legal competence of the patient or the patient's need
for a guardian but only if the patient was informed that any communications made
could be used in such a proceeding.
(d) In a civil action by or on behalf of the patient or a criminal action arising from
the treatment of the patient against the mental health professional for malpractice.
(e) If the privileged communication was made during an examination ordered by a
court, prior to which the patient was informed that a communication made would
(…continued)
whom we must confide our reason for presentation before being seen by a triage nurse or a
doctor. It cannot reasonably be argued that we may have no expectation of privacy through the
physician-patient privilege when divulging our personal medical concerns to the person serving
as the gatekeeper to such care. See, e.g., People v Bland, 52 Mich App 649, 653; 218 NW2d 56
(1974) (physician-patient privilege applied to the defendant’s letters to a jail official requesting
medical treatment), and McCormick, Evidence (6th ed), § 101 (“the preferable view is that of the
courts that have based their decisions upon whether the communication was functionally related
to diagnosis and treatment.”)
-3-
not be privileged, but only with respect to the particular purpose for which the
examination was ordered.
(f) If the privileged communication was made during treatment that the patient
was ordered to undergo to render the patient competent to stand trial on a criminal
charge, but only with respect to issues to be determined in proceedings concerned
with the competence of the patient to stand trial.
The only statutory exception that comes close to the circumstances presented here is
MCL 330.1750(2)(a), given that defendant’s communications to Keiser were relevant to his
physical or mental condition, which defendant introduced as an element of his defense in this
case. However, MCL 330.1750(2)(a) applies only in “a civil or administrative case or
proceeding,” not criminal proceedings. By pleading insanity at trial, defendant did not invoke an
automatic waiver of his entitlement to maintain the psychiatrist-patient privilege. See People v
Plummer, 37 Mich App 657, 660; 195 NW2d 328 (1972), and People v Wasker, 353 Mich 447,
450-451; 91 NW2d 866 (1958). As such, I find no basis to except defendant’s statements from
the statutory protections of MCL 330.1750(1).
While I would hold that the trial court abused its discretion in permitting Keiser and
Garza to testify regarding defendant’s statements at the time of his presentation and request for
admission to KPH, any error was harmless, as there was substantial other evidence of
defendant’s guilt such that the testimony did not likely undermine the reliability of the verdict in
this bench trial. See People v Whittaker, 465 Mich 422, 427; 635 NW2d 687 (2001) (the
standard of review for preserved, nonconstitutional error is whether it is more probable than not
that the error in question was outcome determinative).
/s/ Jane M. Beckering
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
