Aaron Fisher seeks dismissal of assault case

Defense attorney Kimberly Kollmeyer filed three motions Tuesday to dismiss the case against Aaron Fisher, who now faces a felony assault charge stemming from alleged sodomy of a 5-month-old girl in 2009.

Kollmeyer's motion alleges violation of the double jeopardy clause and the right to speedy trial, as well as "res judicata," as the case previously had been dismissed.

These filings come along with a motion for bond reduction and motion for speedy trial. That was three days before Fisher's arraignment hearing was scheduled at the Laclede County Courthouse in Lebanon, where proceedings in this case were moved following a change of venue in November from Miller County.

A motion hearing on these filings is scheduled at 9 a.m. Friday in front of 26th Circuit Court Judge Peggy Richardson in Lebanon.

The double jeopardy clause present in both the U.S. and Missouri constitutions states no person should be put in jeopardy of life or liberty twice for the same offense, Kollmeyer explains in court documents. As such, double jeopardy bars successive prosecution if the offenses are comprised of the same elements, she said.

On Nov. 16, Miller County Prosecuting Attorney Benjamin Winfrey filed a new felony assault charge against Fisher for the October 2009 attack on the then 5-month-old girl.

A Sept. 8 probable cause statement reports Fisher had admitted to Miller County law enforcement officers he sodomized the infant and also said the infant "wouldn't stop crying after he sodomized her, so he hit her in the head with his fist as hard as he could." The statement also said Fisher told investigators he wanted the infant to die.

Fisher was charged previously in Miller County based on the same circumstances as the current case, including probable cause statements from both cases as exhibits, Kollmeyer explained.

Two counts of statutory sodomy were filed against Fisher on Oct. 28, 2009, she said. On Nov. 4, 2009, the state filed an amended complaint charging two counts of forcible sodomy, abuse of a child and class A felony assault in the first degree. On June 1, 2010, information was filed for only two counts of forcible sodomy, with amended information filed for only two counts of forcible sodomy on July 28, 2014, according to court documents.

On July 28, 2014 - almost five years after he was charged - Fisher pleaded guilty to two counts of statutory sodomy. That
plea was set aside Nov. 7, 2014, which the appeals court panel noted was "based on Fisher's statements to the Sentencing Assessment Report writer regarding the commission of the crimes, where Fisher told the writer 'I know I did it, but I honestly don't remember.'"

Fisher was arrested Oct. 28, 2009, and spent six years in the Miller County Jail waiting for trial in the original case, receiving a change of judge and venue to Cole County. The case was dismissed with prejudice on on Oct. 27, 2015, for violating the defendant's speedy trial rights.

The state appealed the case's dismissal, with the Western District Court of Appeals taking up the case and upholding the trial court's order to dismiss it with prejudice, according to court documents. The Court of Appeals ruling was appealed Dec. 7.

Kollmeyer further discusses "the myriad of shifting charges in the original case, including assault in the first degree, as part of a 'same elements test,'" according to the court document.

"Assault in the first degree was originally charged against (Fisher) in the previous case within a week of filing the original case, and that charge remained pending against (Fisher) until June 1, 2010, over six months later, when the state filed information that did not include assault in the first degree," the court document said, later stating, "While the state may have had the luxury of shifting opinions on what charges they were proceeding on, (Fisher) was still required to defend himself against all of them, including assault in the first degree."

Kollmeyer's motion to dismiss on violation of speedy trial right references the proceedings that took place in the original case, as well as Fisher's six-year jail time awaiting trial and dismissal of the case after the court found Fisher's motion for a speedy trial violated.

In February 2011, Fisher submitted his own handwritten "Motion for Speedie Trial."

After Miller County Circuit judges Stan Moore and Kenny Hayden recused themselves from the case, the Missouri Supreme Court in January 2015 named Cole County Circuit Judge Pat Joyce to be the special judge.

On Sept. 9, 2015, Winfrey asked for a new trial date, which Joyce set for Nov. 23. In mid-September 2015, Fisher's public defender, Jason Emmons, asked Joyce to dismiss the case because it had taken so long.

In a Oct. 27, 2015, order, Joyce agreed, ruling "the State has failed to bring (Fisher) to trial without any reason."

On Jan. 12, Winfrey filed a motion to appoint Sherrie Hamner as special assistant prosecuting attorney of Miller County to Fisher's case.