Schmidt v. Foster, No. 17-1727

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtHamilton, Circuit Judge.
Citation891 F.3d 302
Parties Scott SCHMIDT, Petitioner-Appellant, v. Brian FOSTER, Respondent-Appellee.
Docket NumberNo. 17-1727
Decision Date29 May 2018

891 F.3d 302

Scott SCHMIDT, Petitioner-Appellant,
v.
Brian FOSTER, Respondent-Appellee.

No. 17-1727

United States Court of Appeals, Seventh Circuit.

Argued January 4, 2018
Decided May 29, 2018


Craig W. Albee, Attorney, FEDERAL DEFENDER SERVICES OF EASTERN WISCONSIN, INCORPORATED, Milwaukee, WI, Shelley M. Fite, Attorney, FEDERAL DEFENDER SERVICES OF WISCONSIN, INC., Madison, WI, for Petitioner-Appellant.

Sarah Burgundy, Attorney, OFFICE OF THE ATTORNEY GENERAL, Madison, WI, for Respondent-Appellee.

Before Wood, Chief Judge, and Hamilton and Barrett, Circuit Judges.

Hamilton, Circuit Judge.

Petitioner Scott Schmidt murdered his wife, Kelly Wing-Schmidt. He admitted the murder but tried to rely on the state-law defense of "adequate provocation" to mitigate the crime from first- to second-degree homicide. A state trial judge denied Schmidt the assistance of his counsel while the judge questioned Schmidt in a pretrial hearing on that substantive issue. Under law clearly established by the Supreme Court of the United States, the evidentiary hearing on that substantive issue was a "critical stage" of Schmidt's prosecution. By denying Schmidt the assistance of counsel in that critical stage, the state court violated his Sixth Amendment right to counsel.

The Sixth Amendment guarantees the accused in a criminal case "the Assistance of Counsel for his defence." Because "an unaided layman" has "little skill in arguing the law or in coping with an intricate procedural system," the Supreme Court has long held that the right to counsel extends beyond the trial itself. United States v. Ash , 413 U.S. 300, 307, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). Criminal prosecutions involve "critical confrontations" before trial "where the results might well settle the accused's fate." United States v. Wade , 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The Sixth Amendment therefore guarantees defendants "the guiding hand of counsel" at all " ‘critical’ stages of the proceedings." Id. at 224–25, 87 S.Ct. 1926, quoting Powell v. Alabama , 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

Since Schmidt admitted having murdered his wife, the only substantive issue in the prosecution was whether he acted under "adequate provocation," which in Wisconsin would mitigate homicide from first to second degree. The prosecution opposed Schmidt's intended defense, arguing before trial that he had failed to offer "some evidence" of provocation, which would be sufficient to shift the burden of persuasion to the state to disprove provocation beyond a reasonable doubt. The trial court chose to address this critical substantive issue before trial.

After a hearing where counsel debated the defense's written summary of evidence of provocation, the trial court held an unprecedented ex parte , in camera hearing. The judge allowed Schmidt's counsel to attend the hearing but, critically, did not allow him to speak or participate. Instead, the judge questioned Schmidt directly. After listening to Schmidt's answers, the judge ruled that Schmidt could not present the adequate provocation defense at trial. A jury convicted Schmidt of first-degree intentional homicide, and he was sentenced to life in prison.

891 F.3d 306

Schmidt sought post-conviction relief, and the Wisconsin Court of Appeals held that the trial court did not violate Schmidt's Sixth Amendment right to counsel. That decision was an unreasonable application of clearly established Supreme Court precedent guaranteeing counsel at all critical stages of criminal proceedings, including whenever "potential substantial prejudice to defendant's rights inheres in the particular confrontation." Wade , 388 U.S. at 227, 87 S.Ct. 1926. Schmidt therefore meets the stringent standards for habeas corpus relief under 28 U.S.C. § 2254(d)(1).1

I. Factual & Procedural Background

In April 2009, Schmidt shot his wife, Kelly Wing-Schmidt, seven times. She died in their driveway. When police officers arrived, they found Schmidt standing by her body. He quickly admitted he had shot her.

A. The Trial Court Proceedings

Wisconsin charged Schmidt with first-degree intentional homicide. Schmidt never denied shooting and killing Kelly, but he intended to argue at trial that he acted with "adequate provocation." In Wisconsin, adequate provocation is an affirmative defense that mitigates intentional homicide from first to second degree for defendants who "lack self-control completely at the time of causing death." Wis. Stat. §§ 939.44 ; 940.01(2)(a). To be "adequate," the provocation must be "sufficient to cause complete lack of self-control in an ordinarily constituted person." § 939.44. If the defendant can produce "some" evidence supporting adequate provocation before trial, then the defendant may introduce evidence of the defense at trial. State v. Schmidt , 344 Wis.2d 336, 824 N.W.2d 839, 843 (Wis. App. 2012), citing State v. Head , 255 Wis.2d 194, 648 N.W.2d 413, 439 (2002). The prosecution must then disprove the defense beyond a reasonable doubt. Schmidt , 824 N.W.2d at 843, citing Head , 648 N.W.2d at 437–38.

Schmidt filed a pretrial motion disclosing that he would present evidence of provocation through "false allegations, controlling behaviors, threats, isolation, unfaithfulness, verbal abuse and arguments." Schmidt planned to present evidence that his wife had abused him emotionally and physically throughout their marriage. He would have testified that right before the shooting, he and Kelly had a heated argument in which Kelly taunted him about an affair he had just discovered, told him their children were not actually his, and threatened to make up stories so that he would never see their children again. According to Schmidt, he lost self-control and shot his wife. The State objected to the evidence, arguing that Schmidt's disclosure lacked specificity and that the circumstances did not support an adequate provocation defense. The State also argued that Schmidt did not clarify the timeframe covered by his proposed evidence and that evidence dating back too far would be irrelevant and prejudicial.

The court acknowledged the State's concerns. Over Schmidt's objection, the court scheduled a hearing to determine whether Schmidt had met the some-evidence standard and could present the defense at trial. Before the hearing, Schmidt submitted

891 F.3d 307

two documents: an offer of proof summarizing the testimony of twenty-nine potential witnesses and a legal analysis of the provocation defense with a timeline of events from 2004 through the 2009 shooting.

The evidentiary hearing began in court with Schmidt, his lawyer, and the prosecutor present. The judge was not prepared to decide on the paper submissions alone whether Schmidt could meet the "some evidence" threshold for the provocation defense. Schmidt's lawyer objected to having to expose his defense evidence before trial. The judge decided that he should question Schmidt ex parte to assess the provocation defense. Schmidt's counsel agreed that if the court intended to question Schmidt, it should do so in chambers outside of the prosecutor's presence. The court then proposed to the prosecutor that Schmidt's counsel would attend the hearing in chambers, but would "just be present" and "not saying anything." The prosecutor agreed. Schmidt's counsel did not object, but nobody asked Schmidt if he was willing to go forward in this hearing, so critical to his fate, without the assistance of his lawyer.

The trial judge, court reporter, Schmidt, and Schmidt's counsel proceeded to the judge's chambers. The judge stated that Schmidt "appears in person" and that "his attorney is also present but is not participating in the hearing." The court then asked Schmidt an open-ended question about what was on his mind when he shot Kelly. Schmidt gave the first of what would be several rambling narrative responses:

The day I went over was April 17th. I hadn't slept in at least a week, week-and-a-half. And I—it was like two days before that, I believe the 14th of April, the 14th or 15th of April I think it was, that I found an e-mail on my work computer from a—of a reservation for my wife and a guy that she supposedly was a friend with that worked for Gold Cross Ambulance. And I found that when I was at the fire station. I knew of him, up until that point, that they were friends.

Um, I had been out of the house for a couple of weeks. And I walked there. I went to the fire station, and I walked up to the house, because I knew there were some issues with, um, Kelly had threatened to take—these aren't my f'ing kids, that if she saw me at the house that she didn't want—I wasn't going to be part of the kids' lives anymore, our two youngest children. I just had a feeling that she'd probably call the cops if I pulled in the driveway. So I parked at the station, Fire Station 6, over on Lightning, and I walked to the house.

Actually, my main goal was, um, I had a job to do. I was going to build a house for a retired battalion chief up in Door County. And all my tools, my job trailer, and everything was at our house on JJ on Edgewood. I was at the time staying out at the lake—the lake house that I had—had owned prior to us being married in Stockbridge. And there's—I didn't have any heat, slept on the couch, there was no blankets. I mean, it was—there were no dishes. I
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2 practice notes
  • Schmidt v. Foster, No. 17-1727
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 20, 2018
    ...court granted a certificate of appealability. See id. § 2253(c).A divided panel of our court reversed and remanded. Schmidt v. Foster , 891 F.3d 302 (7th Cir. 2018). The majority reasoned that Schmidt had a clearly established right to counsel at critical stages, and, in this case, there wa......
  • United States v. Peterson, No. 17-2062
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 29, 2018
    ...findings and explanation of its reasoning as to the § 3553(a) factors, we have recognized the need to consider the context and practical 891 F.3d 302realities of sentencing hearings in determining whether the procedural requirements are met. United States v. Reed , 859 F.3d 468, 472 (7th Ci......
2 cases
  • Schmidt v. Foster, No. 17-1727
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 20, 2018
    ...court granted a certificate of appealability. See id. § 2253(c).A divided panel of our court reversed and remanded. Schmidt v. Foster , 891 F.3d 302 (7th Cir. 2018). The majority reasoned that Schmidt had a clearly established right to counsel at critical stages, and, in this case, there wa......
  • United States v. Peterson, No. 17-2062
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 29, 2018
    ...findings and explanation of its reasoning as to the § 3553(a) factors, we have recognized the need to consider the context and practical 891 F.3d 302realities of sentencing hearings in determining whether the procedural requirements are met. United States v. Reed , 859 F.3d 468, 472 (7th Ci......

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