Of note, the defense will argue to bar any mention by the state of other or past criminal activity, including a prior conviction for damaging jail property, as well as any mention of crimes committed by Fisher or associates.
Evidentiary motions related to potentially prejudicial information figures to play heavily in the case of Aaron Michael Fisher, the former Brumley resident charged with the felony assault of his infant daughter in October of 2009.
Attorney Adam Cartwright, a public defender from Poplar Bluff, was assigned to the case on October 24 by Circuit Judge Peggy Richardson after Fisher’s initial attorney, Kimberly Kollmeyer, withdrew from the case and the public defender’s office filed a motion to decline representation for the five-day trial set to begin on January 8, 2018. Cartwright filed two motions in limine on November 19.
On Monday, Fisher appeared in custody with Cartwright and Hamner for a pre-trial conference with Judge Richardson on the status of the case. Cause was set to proceed to trial, but first Judge Richardson will have to rule on the two motions filed on behalf of the defense.
The motions deal with evidentiary protocols and arguments to block certain pieces of evidence from being presented to the jury. Of note, the defense will argue to bar any mention by the state of other or past criminal activity, including a prior conviction for damaging jail property, as well as any mention of crimes committed by Fisher or associates.
It’s unclear if the state will be allowed to mention accusations or facts presented from Fisher’s prior case stemming from the same incident that was thrown out by a Cole County judge several years ago when it was determined the defendant’s right to a speedy trial had been violated. The new, separate charges were filed on November 16, 2016, after Fisher had moved back to Toledo, Ohio.
“I’ll have to wait and see how that evidence is presented,” Richardson said.
Missouri voters approved the Missouri Evidence in Sexual Crimes Against Minors, Amendment 2, in 2014. The measure allowed relevant evidence of prior criminal acts, also known as propensity evidence, to be admissible in court in prosecutions of sexual crimes involving a victim under 18 years old.
On Jan. 31, 2017, the Missouri Supreme Court unanimously ruled that Amendment 2 applies to all trials occurring on or after the effective date of December 2014, regardless of when the crime occurred.
Uncharged prior actions and prior convictions are the two main types of propensity evidence and both come with legal issues that can complicate a case due to the potential for prejudicing a jury which is supposed to consider a defendant innocent until proven guilty.
Another motion in limine filed by Fisher’s defense dealt with Fisher’s appearance in court with his attorney requesting he not appear in orange jail clothing, restrained by handcuffs or shackles, or transported by deputies where potential jurors can see him to avoid any prejudicial judgments.
A precedent on defendants’ appearance before a jury was set in a Missouri death penalty case appealed to the United States Supreme Court. In a 7-2 decision in 2011, SCOTUS ruled that shackling could only be done for certain reasons for specific defendants, otherwise it could be a violation of Constitutional rights to shackle a defendant in either the sentencing or guilt phase of a trial.
Miller County Prosecuting Attorney Ben Winfrey along with Special Prosecutor Sherrie Nichole Hamner are trying the case that originated in Miller County but was transferred to Laclede County when a change of venue motion was granted.
Fisher, 29, stands charged of first degree assault - serious physical injury or special victim, stemming from an October 27, 2009 incident in which his infant daughter was allegedly beaten and sustained serious injuries. This Class A felony carries a punishment of 10 to 30 years or life imprisonment in the Missouri Department of Corrections.
Special Prosecutor Hamner said no depositions have been taken yet in the case, but Cartwright said the defense would be able to proceed with trial in January.
A jury pool of no less than 100 people are expected to be called in for voir dire and Richardson told both sides to prepare for opening statements, though it will depend on how long jury questioning lasts.
Fisher was initially arrested in October 2009. Former Miller County Prosecuting Attorney Matt Howard charged him with two counts of forcible sodomy against the man’s five-month-old infant daughter from an October 27, 2009, incident.
Fisher was released in 2015 by order of Cole County Circuit Judge Patricia Joyce. He was awaiting trial on the two counts when his defense attorney successfully argued his right to a speedy and fair trial was violated by the Miller County judicial system due to several continuances and delays. An initial request by Fisher for a speedy trial was followed by unclear documentation regarding which party was responsible for multiple subsequent continuances.
On the afternoon of October 28, 2009, the victim was admitted to Lake Regional Hospital with apparent signs of physical and sexual child abuse, according to investigators.
“Specifically, the child was diagnosed with numerous facial bruises, a left acute mildly displaced comminuted left parietal and non-displaced left occipital skull fracture, a large scalp contusion; an acute bilateral frontal subarachnoid and parafalcine subdural hemorrhages; and extensive pre, intra, and sub retinal hemorrhages,” according to the probable cause statement.
The infant and a 2-year-old sibling were placed in emergency protective care and were later adopted after Fisher and the mother, Samantha Widman, lost their parental rights. Widman pled guilty to child endangerment and was placed on probation.
“The above named defendant further disclosed that [the victim] wouldn’t stop crying after he sodomized her, so he hit her in the head with his fist as hard as he could. The above defendant stated he wanted [victim)] to die,” according to the statement.
According to court documents, Fisher was considered a danger to the public. His mother allegedly fled to another state after reportedly being assaulted by him. Fisher was considered a flight risk because he had previously lived most of his life in Michigan and Ohio, according to the document.
On October 29, 2009, Fisher confessed to assaulting and sodomizing his infant daughter, but later recanted before a scheduled court hearing and claimed to have forgotten what happened. The confession was thrown out of the record.