Schmidt v. Foster
| Decision Date | 20 December 2018 |
| Docket Number | No. 17-1727,17-1727 |
| Citation | 911 F.3d 469 |
| Parties | Scott E. SCHMIDT, Petitioner-Appellant, v. Brian FOSTER, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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, Wisconsin Department of Justice, Misha Tseytlin, Ryan J. Walsh, Attorneys, Office of the Solicitor General, Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.
Before Wood, Chief Judge, and Flaum, Easterbrook, Kanne, Rovner, Sykes, Hamilton, Barrett, Scudder, and St. Eve, Circuit Judges.*
Scott Schmidt shot and killed his estranged wife. He confessed at the scene, but come trial he sought to mitigate his crime with the second-degree defense of adequate provocation. The Wisconsin trial court, in deciding whether the defense should go to the jury, asked for an offer of proof and an evidentiary hearing. Schmidt complied with the first request but balked at the second, not wanting to show any more of his defense hand. That concern was well taken, and the trial court ordered an ex parte , in camera examination of Schmidt instead. The trial court added, however, that Schmidt’s lawyer could "not say[ ] anything" and would "just be present" for the examination.
The trial court questioned Schmidt in chambers. Schmidt’s lawyer observed silently. Schmidt rambled, interrupted only by a few open-ended questions from the trial court and a brief break during which he reviewed his offer of proof with his lawyer. After the examination, the trial court ruled that Schmidt did not act with adequate provocation. He therefore could not raise the defense at trial. A jury later convicted Schmidt of first-degree homicide, and he was sentenced to life in prison.
Schmidt petitioned for a writ of habeas corpus, arguing that the trial court’s in camera examination deprived him of counsel and due process. The district court denied Schmidt’s petition, and a divided panel of our court reversed and remanded with instructions to grant it. We vacated that decision, reheard the case en banc, and now affirm the district court’s judgment. The state trial court’s unusual examination of Schmidt was constitutionally dubious, and we discourage the measure. But our habeas review is limited. We ask whether the state court of appeals unreasonably applied clearly established Supreme Court precedent in rejecting Schmidt’s constitutional claims. We answer that it did not.
During an argument on April 17, 2009, Schmidt followed his estranged wife, Kelly Wing-Schmidt, out of her home and onto her driveway. There, he shot her seven times with his revolver. Police arrived and found Schmidt standing over the body with the gun in his hand. He confessed immediately.1
Wisconsin charged Schmidt with first-degree intentional homicide. He never recanted his confession, but he did intend to present an affirmative defense—adequate provocation. See Wis. Stat. § 940.01(2)(a). Under Wisconsin law, that defense mitigates intentional homicide from first degree to second. Id. § 939.44(2). The defense has "both subjective and objective components"—a defendant "must actually believe the provocation occurred" and the provocation must be one "that would cause an ordinary, reasonable person to lack self-control completely." State v. Schmidt , 344 Wis.2d 336, 824 N.W.2d 839, 842 (Wis. Ct. App. 2012) (citing Wis. Stat. § 939.44(1) ; State v. Felton , 110 Wis.2d 485, 329 N.W.2d 161, 172 (1983) ). "Once a defendant successfully places" adequate provocation "in issue," the state must disprove it beyond a reasonable doubt. Id. at 843 (citing State v. Head , 255 Wis.2d 194, 648 N.W.2d 413 (Wis. 2002) ). To place the defense "in issue," a defendant need only present " ‘some’ evidence supporting the defense." Id. (quoting Head , 648 N.W.2d at 439 ).
Before trial, Schmidt filed a motion notifying the trial court and the state that he intended to present the adequate-provocation defense. He intended, specifically, to introduce evidence of Wing-Schmidt’s "false allegations, controlling behaviors, threats, isolation, unfaithfulness, verbal abuse and arguments." The state argued that evidence of the couple’s history, however fraught, did not support a theory of adequate provocation under Wisconsin law.
The trial court held a pretrial hearing in early 2010. At the hearing, the court echoed the state’s concern that Schmidt’s proposed provocation evidence, most of which related to events years before the murder, was irrelevant and would unfairly prejudice the state’s case. The trial court therefore ordered an evidentiary hearing to determine whether Schmidt could meet his threshold burden. It instructed Schmidt that during the hearing his counsel could call witnesses, and, if the court was unsatisfied with the evidence presented, Schmidt could supplement the record. Before the hearing, Schmidt had to file a list of witnesses he intended to call.
Schmidt did so. His counsel filed a list of 29 witnesses with short summaries of their anticipated testimony, a legal analysis of the defense’s applicability, and a five-page offer of proof with a six-year timeline of the couple’s troubled history. A few days later, at another hearing, the trial court noted that it had reviewed Schmidt’s submissions, but its reservations persisted. The trial court did not, however, ask for the presentation of witnesses or evidence from Schmidt, as it had said it would the month before. Instead, the court explained that its review of Wisconsin law—namely, State v. McClaren , 318 Wis.2d 739, 767 N.W.2d 550 (2009) —confirmed that a hearing was appropriate, but that it should hold the hearing in camera to protect the defense from disclosing its trial strategy to the state (a measure McClaren blessed, 767 N.W.2d at 559 n.12 ). Schmidt’s lawyer responded that additional evidence was unnecessary, but he agreed that if the court was going to question Schmidt it should do so in camera and ex parte . Schmidt’s lawyer, in fact, noted that he intended to suggest that, if the court "ask[ed] for evidence from the defendant that goes to his subjective belief for adequate provocation," it should do so through an "ex parte in-camera inspection of the Court and the defendant and seal those records." The state agreed this was the "best way" to handle the court’s examination.
The trial court then asked the state whether it would object to Schmidt’s lawyer silently observing the examination. The state did not object—nor, for that matter, did Schmidt’s lawyer. The state noted, though, that it did not want Schmidt conferring with counsel about how to answer the court’s questions. Before concluding the in-court hearing and beginning the in camera examination, the court offered Schmidt’s lawyer "a few minutes" to consult with his client. Schmidt’s lawyer accepted.
The in camera examination opened with the trial court putting on the record that Schmidt’s lawyer was "present but ... not participating in the hearing." The court then asked Schmidt "what was in your mind" when he confronted Wing-Schmidt. Schmidt’s answer, which went on uninterrupted for 14 transcript pages, addressed the events leading up to the killing, some history between him and his estranged wife, the moment of the killing (though he professed not to remember pulling the trigger), and the immediate aftermath. The trial court stopped Schmidt as he was describing his arrest. It explained to Schmidt that his "attorney has made an offer of proof about other things that had occurred prior to this that had entered into your mind at the time." The trial court asked Schmidt to "tell us how those things entered into your mind at the time?" Schmidt explained that his estranged wife had threatened to take the kids and physically abused him. The trial court asked again; Schmidt continued to detail the couple’s troubled history.
The trial court explained that Schmidt’s testimony did not align with his offer of proof, to which Schmidt replied that he had not even seen the offer. The trial court then suggested a "short break," during which Schmidt could review the offer of proof while the court took a phone call. Schmidt’s lawyer asked if he could consult with his client. The trial court responded, the offer of proof.
Back on the record, the trial court noted that they had taken a break so that Schmidt could "review this offer of proof and different facts contained in it." Then, and again, the trial court asked Schmidt about "what you contemplated at the time" of the killing. Schmidt responded that everything had come "to a head," he was "overwhelmed, and eventually just got—they piled up one after another." Schmidt elaborated upon events that happened in years past—financial struggles, abusive behavior, and fights. The trial court concluded the examination, asked Schmidt and his lawyer to return to the courtroom, and said that it would consider its decision. Schmidt’s lawyer did not ask to supplement his evidentiary presentation with affidavits or additional testimony.
That afternoon, and without further argument, the trial court ruled. It did not detail factual findings, citing the ex parte and in camera nature of the examination. Its conclusion was that the killing "did not involve a provocation and it was not an adequate provocation."
A month later, at another pretrial hearing, the parties discussed whether Schmidt would call one of the witnesses identified in his annotated witness list. The trial court stated that since it had ruled on the defense’s admissibility, it did not see the relevance of the testimony. Schmidt’s lawyer explained that he thought the "issue open" and...
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