Staff writer
ttjohnso@observer-reporter.com
With jury selection set to begin Monday in the homicide trial of Mark Matthew Fisher, both sides were in Washington County Court Thursday arguing last-minute details.
The trial will be heard before President Judge Debbie O'
Dell Seneca.
Fisher, 23, of 2102 Hastings Crossing, Texarkana, Ark., is charged in the Jan. 29, 2003, death of 89-year-old Freda Dale. She died while bound and gagged with her husband, Shannon Dale, then 90, in their Venetia home in Peters Township. Shannon Dale died Feb. 7, 2008.
Initially, police filed a criminal complaint against Michael Marks after he was identified by Shannon Dale through a police composite as one of four men who entered the house claiming to be gas company employees. Those charges later were dropped.
The case remained stagnant until Fisher was charged Sept. 21, 2007, after DNA evidence linked him to a cigarette butt found outside the house a week after the murders. Police said Fisher's fingerprint was found on an envelope inside the house.
An independent DNA report requested by the defense has not been completed, but Fisher's attorney, public defender Glenn Alterio, said his client does not wish to delay the trial, which will begin on Fisher's 24th birthday.
The defendant's father, Rusty Fisher, said his son does not deny being at and smoking outside the Dales' house in early January to perform driveway work and will seek an alibi defense that he was in Arkansas on the day of the murders.
During Thursday's hearing, Alterio and Washington County Assistant District Attorney Michael Lucas argued whether Fisher's criminal record can be included since any criminal conviction occurred after Freda Dale's death. That record involves a June 11, 2003, robbery of an 80-year-old man in Arkansas for which Fisher entered a guilty plea.
Additionally, Lucas argued to exclude testimony that another man initially was charged, but later cleared.
Shannon Dale died before testifying at any hearing, and both attorneys argued the merits of whether any statements made by him could be considered hearsay.
O'Dell Seneca said she will rule on whether the evidence can by introduced before the trial begins.
She ruled immediately from the bench denying a motion by Alterio to permit Fisher to be released on nominal bond. A defendant may be released from incarceration under the state's Rule 600 if they are held without trial for more than 365 days. Fisher was charged Sept. 21, 2007, and with the trial beginning Monday, there is no violation of Fisher's rights.
The charges for which Fisher is being held are not bailable offenses, O'Dell Seneca said.
In addition to the homicide charge, Fisher faces two counts of robbery, burglary, aggravated assault, unlawful restraint, falsely impersonating persons privately employed, reckless endangerment and criminal conspiracy. The prosecution is not seeking the death penalty.
If the jury is selected in the morning, testimony is expected to begin Monday afternoon.
Outside the courtroom, Alterio said he is ready for trial.
As to whether Fisher will testify, Alterio said, "I will reserve the right to call him," adding he has not made that decision.
Lucas said he was also ready for trial.
Rusty Fisher said he wants the truth to come out and that he doesn't understand why the prosecution is arguing not to introduce that another man initially was charged. He also disputes why his son's criminal record, which occurred after the death, should be introduced.
Regarding Freda and Shannon Dale, Rusty Fisher said, "God bless those people. I'm sure that lady is in heaven and saying, 'You don't got the right person.'"