Steele v. State

• Decision Date: 11 August 1980
• Docket Number: No. 77-061-CR,77-061-CR
• Citation: 97 Wis.2d 72,294 N.W.2d 2
• Parties: Richard A. STEELE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 2

294 N.W.2d 2

97 Wis.2d 72

Richard A. STEELE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 77-061-CR.

Supreme Court of Wisconsin.

Argued Nov. 28, 1978 and Nov. 7, 1979.

Decided June 27, 1980.

Reconsideration Denied Aug. 11, 1980. ^*

Ruth S. Downs, Deputy State Public Defender (argued), Howard B. Eisenberg, State Public Defender, Richard L. Cates, State Public Defender, on brief, for plaintiff in error.

Pamela Magee-Heilprin, Asst. Atty. Gen. (argued) and Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.

Frank J. Remington, Madison, amicus curiae brief, on behalf of the Legal Assistance to Institutionalized Persons Program.

James R. Glover, James M. Shellow and Shellow & Shellow, Milwaukee, amicus curiae brief, on behalf of the National Association of Criminal Defense Lawyers.

HEFFERNAN, Justice.

Richard A. Steele was charged and found guilty of the first degree murder of his wife, Joan. After a bifurcated trial in response to appropriate pleas, a jury found him guilty and found that he did not have a mental disease or defect which would exonerate him of criminal responsibility. Judgment of conviction was entered on July 22, 1974.

Appeal was brought on the grounds that the trial court erred when it excluded, at the guilt phase of the trial, expert opinion testimony that Steele lacked the capacity to intend to kill his wife. The appeal was predicated on the theory that Wisconsin's rule excluding expert testimony in respect to the defendant's mental state at the guilt phase of the bifurcated trial deprived him of the right to offer a defense.

While the case was pending on appeal, the United States Court of Appeals decided Hughes v. Mathews, 576 F.2d 1250 (7th Cir., June 6, 1978). Hughes reversed a Wisconsin conviction because, "by instructing the jury to presume intent if not rebutted, and by excluding psychiatric evidence offered to rebut the presumption, Wisconsin set up a conclusive presumption which unconstitutionally relieved the prosecution of the burden of proving the element of specific intent beyond a reasonable doubt." Hughes at 1255. ¹

Following the Hughes mandate of the Seventh Circuit, this court, on June 30, 1978, decided Schimmel v. State, 84 Wis.2d 287, 267 N.W.2d 271. Although Hughes related only to a single-phase trial and expressly reserved the applicability of its holding in respect to a bifurcated trial, this court, incorrectly we now conclude, extended the rationale of Hughes to Schimmel, where there was a trial based on the bifurcated-sequential order of proof mandated by sec. 971.175, Stats. We held in Schimmel that, during the guilt phase of a bifurcated trial, competent psychiatric evidence relevant to the defendant's mental state at the time of the crime was admissible and that the refusal to admit such evidence for the purpose of rebutting the presumption of intent was prejudicial error.

Close on the heels of Schimmel came Steele's predictable motion for summary reversal. That motion was denied, and the appeal was argued on its merits during the 1978 term of court. Shortly before the intended release of the opinion in June of 1979, the United States Supreme Court decided the cases of Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Because of the potential impact of these opinions, and because of other problems, not briefed by the parties, which had surfaced during the course of the court's consideration, this court, on June 29, 1979, ordered further briefs and oral argument. The parties were asked to address themselves to the following questions:

"1. Whether, following Schimmel v. State, 84 Wis.2d 287, 267 N.W.2d 271 (1978), and Hughes v. Mathews, 576 F.2d 1250 (7th Cir. 1978), a bifurcated trial is workable when the defendant wishes to present psychiatric testimony on the issue of capacity to form the specific intent required for first-degree murder and also relies on the defense that he is not guilty by reason of mental disease or defect?

"2. Whether a defendant wishing to present psychiatric testimony on the issue of specific intent to commit murder should be required to give notice to the state that such testimony will be offered in order for the testimony to be admissible?

"3. Whether an instruction to the jury that the law presumes that a person intends the ordinary consequences of his voluntary acts is constitutionally infirm in view of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)?"

The case was reargued in its new posture in November of 1979.

On the appeal in the posture originally brought three questions were posed:

1. Is expert evidence in respect to the mental capacity to form an intent to kill admissible in the guilt phase of a bifurcated trial for first degree murder.

2. In the instant case, was the proffered testimony of a psychiatrist, a psychologist, and a psychiatric social worker admissible for this purpose.

3. Under the facts revealed in this record, should the jury have been instructed on second degree murder, as well as first degree murder.

We conclude that our decision in Schimmel, supra, to apply the rationale of Hughes, supra, to a bifurcated trial was incorrect, and we expressly overrule that portion of Schimmel. Accordingly, based on the rationale of State ex rel. La Follette v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967); Curl v. State, 40 Wis.2d 474, 162 N.W.2d 77 (1968); and State v. Hebard, 50 Wis.2d 408, 184 N.W.2d 156 (1971), we conclude that expert opinion evidence in respect to Steele's mental capacity to form an intent was properly excluded in the guilt phase of the trial. Because we conclude that expert testimony was inadmissible, we do not have reason to answer either the second or third question.

We set forth only the skeletal facts pertinent to this appeal.

The record shows that the defendant, Richard Steele, did not dispute the fact that he shot his wife on February 11, 1974, and that she died from the gunshot wounds. His defense in the guilt phase of the trial was that he did not intend to kill her.

Prior to trial on the question of guilt, it was stipulated Steele bought a .22 caliber revolver and shells on the morning of the killing, that he then went to the Emil Hanson residence in Sparta, Wisconsin, where his estranged wife and child were living, and he there fired six shots into the body of his wife and that she died almost immediately thereafter.

It was also stipulated that Richard and Joan Steele were separated, although no legal proceeding for divorce or separation had been commenced. They were the parents of a son, Richard A. Steele, Jr., who was temporarily in a foster home, the Emil Hanson residence, where Joan Steele was also living at the time of the killing.

Prior to the death of Joan Steele, she had been receiving hospital psychiatric care. Apparently Steele expected that Joan would return to the couple's home upon being discharged from the hospital. On January 28, 1974, he learned, however, that Joan was temporarily living at the foster home with the couple's child. On that day he went to the Monroe County Welfare Office and saw Janet Frost, a social worker, to get an explanation of Joan's residence in the foster home. Frost testified that Steele became angry when she attempted to explain the temporary residence, and he threatened that, if Joan stayed there, he would get a gun and blow her head off.

On February 4, 1974, Joan and Richard Steele had a joint conference at the Gundersen Clinic in La Crosse. According to Steele, the session began with Dr. Anderson stating, "I'm not going to counsel I think you two should just get a divorce." This angered Steele, and after the conference Steele struck his wife in the face and knocked her to the ground. Later in the day, Steele saw Frost and he told her, "You can't guard her all the time. I'll get her sooner or later."

On February 5, 1974, the county judge of Monroe county awarded the custody of the child to the Monroe County Welfare Department, with the placement to continue in the Hanson residence. That afternoon, Steele went to Frost's office and there made the threat that, if he was not allowed to see his son, "there would be bodies from here to Winona." He also threatened to kill his wife. He later returned to Frost's office and stated that he did not mean these threats and that he made them because he had been drinking. He also went to see Dennis C. Stamberger, a psychiatric social worker at the Monroe County Guidance Clinic, and Steele told Stamberger that he was sorry that he struck his wife, that he still loved her, and that he did not mean the threats.

On February 7, Steele attempted to make arrangements for a twenty-four-hour visitation with the child on February 11, the child's third birthday. The social worker, Frost, said it would be up to the county judge. When Steele visited the judge, he was told that the doctor had recommended against it.

There was additional evidence produced which showed that Steele, who was a cab driver, drove his car with extreme recklessness following the interview with the judge. A cab customer stated that he ran off the road several times and that he looked "wild."

He had nothing to eat from 1:30 p.m. on Saturday until the shooting on Monday morning. On Sunday evening, according to the testimony of his mother, he was very upset, sat on a couch holding a blanket and was "hollering and crying." He took four Valium tablets and two Mellaril tablets that evening.

On Monday morning, he went to see Stamberger, the psychiatric social worker, who said that Steele was very upset, cried in the office, and looked tired. He again went to see the county judge, who again refused to allow him to visit the child. Steele then went to a sporting goods shop and bought a .22 caliber revolver. He then went to the Hansons to see his son.

Whe...