Schmidt v. Pollard, Case No. 13-CV-1150

Decision Date20 March 2017
Docket NumberCase No. 13-CV-1150
PartiesSCOTT ERIC SCHMIDT, Petitioner, v. WILLIAM J. POLLARD, Respondent.
CourtU.S. District Court — Eastern District of Wisconsin

Scott Schmidt filed a petition for writ of habeas corpus challenging his May 12, 2010, judgment of conviction in Outagamie County Circuit Court on one count of first-degree intentional homicide, one count of first-degree recklessly endangering safety, and one count of bail jumping. (Doc. 12-1 at 1-2.) After the jury returned a guilty verdict on the three counts, Judge John A. Des Jardins sentenced Schmidt to life imprisonment with eligibility for extended supervision after forty years. (Doc. 12-1 at 1.) Schmidt filed a post-conviction motion seeking a new trial on the homicide charge, arguing that he was denied his right to present his chosen defense when the trial court refused to permit him to offer the affirmative defense of adequate provocation at trial. (Doc. 12-2 at 18-19.) Additionally, he argued that he was denied his right to counsel during a pretrial in camera hearing when his attorney was not permitted to participate and assist him in tendering an offer of proof respecting the planned defense. (Id.) When the post-conviction motion was denied, Schmidt filed a direct appeal with the Wisconsin Court of Appeals. State v. Schmidt, Appeal No. 2011AP001903. On appeal he raised the same arguments asserted in his post-conviction motion. The Wisconsin Court of Appeals affirmed the conviction, and the Wisconsin Supreme Court denied Schmidt's petition for a writ of certiorari. State v. Schmidt, 2012 WI App 113, cert. denied, 346 Wis. 3d 284 (2013). For the reasons set forth below, the petition before this court will be denied.


On April 17, 2009, Scott Schmidt shot and killed his estranged wife, Kelly Wing-Schmidt, after an argument. Firing his .22 caliber revolver, Schmidt struck Wing-Schmidt three times in the head, twice in the left hand, and twice in the right arm. He also shot his mother-in-law in the chest. The State charged Schmidt with first-degree intentional homicide in the shooting death of Wing-Schmidt, attempted first-degree intentional homicide in the shooting of his mother-in-law, and felony bail jumping.

On September 17, 2009, the defense filed a Motion to Include Other Acts Evidence pursuant Wis. Stat. § 904.04 for use in an adequate provocation defense. An adequate provocation defense mitigates the offense of first-degree intentional homicide to second-degree intentional homicide. A motion hearing was set for November 13, 2009; however, the motion was not addressed. On January 19, 2010, a second motion hearing was conducted and the State asked the court to bar presentation of any such evidence under any theory — other acts, habit evidence, or adequate provocation. The defense offered to supplement the motion, and the court expressed concern that the process would allow for potentially inadmissible evidence to be presented to the jury. "Well, if I were to accept everything you had to say, anytime somebody would raise, the you know, the defense of adequate provocation, then it would open up the door to all kinds of evidence that might be entirely inadmissible before a jury." (Doc. 12-9 at 23-24.) Accordingly, the court advisedthe parties that it would conduct an evidentiary hearing to determine what evidence, if any would be admissible at trial. As the trial court stated, "[I]f the Court were to allow, you know, the adequate provocation to defense to go forward with all of the these loose ends going on, you know, possibly for years and months, all of that potentially could come in and be totally irrelevant to the case if its not tied up properly." (Doc. 12-9 at 28.) The defense was ordered to provide a list of witnesses with a summary before the hearing.

During the February 10, 2010, hearing, the trial court concluded that it could require the defense to disclose a summary of the evidence supporting its motion to determine admissibility prior to trial. In ruling, the trial court relied on State v. McClaren, 2009 WI 69, where the Wisconsin Supreme Court discussed the constitutional implications of disclosing evidence of violent acts committed by the victim that the defendant knew about at the time of the alleged crime to support a claim of self-defense. Id., 2009 WI 69 at ¶ 5. In McLaren, the Wisconsin Supreme Court concluded that measures ensuring fair play and the efficient use of trial time did not invade the Fifth Amendment, violate the Due Process Clause, or otherwise impinge on any "right to surprise a prosecutor." Id. Meanwhile, a trial court has the authority under Wis. Stat. § 906.11 to exercise "'reasonable control' over the presentation of evidence so that it can be done effectively and with minimal waste of time. Id., 2009 WI 69 at ¶ 26. "To hold otherwise could frustrate a circuit court's efforts to try to be certain that a jury is presented with admissible, reliable evidence and to make pretrial rulings so that the trial runs smoothly." Id., 2009 WI 69 at ¶ 47.

After the trial court's ruling, Schmidt's counsel suggested that "in fact, we would do an ex parte in camera inspection of the Court and the defendant and seal those records because I don't think it would be - it should be allowed to the State and should have thatinformation prior to trial." (Doc. 12-10 at 5.) Notwithstanding the court's concern that the hearing would "become a mini-trial," it proceeded with the in camera proceeding. Schmidt filed two documents: (1) an offer of proof identifying at least 29 potential witnesses along with a brief synopsis of their testimony and a legal analysis of the adequate provocation defense; and (2) an offer of proof with a time line of events from 2004 to the day of the shooting.

The in camera proceeding was held in chambers, and the court clearly stated that defense counsel was present but was not participating in the hearing. (Doc. 12-2 at 95.) Schmidt testified about physical, emotional, and verbal abuse by Wing-Schmidt during their marriage. (Doc. 12-2.) The court asked how those things affected his state of mind on the 17th, and Schmidt responded:

I guess to me it just was a combination of everything. There was no way - there was no way out anymore. There was - I went there - I went there to defend my marriage and to keep my marriage together. I knew full well, or thought, I guess, in my mind that Chad was going to come and pick her up, and they were going to go to Chicago. That's what I thought. I did not know that they had cancelled their plans or whatever the police reports say. I - there's a lot of things in the police reports that I didn't know at that time.

(Doc. 12-2 at 113.) Schmidt further testified that he had written numerous suicide notes and letters to the kids "kind of telling them why I couldn't do it anymore." (Doc. 12-2 at 116.) According to Schmidt, he "saw everything gone."

[E]verything I worked for my entire life just gone. My kids were gone. I -and she would — her and Barb would poison the kids' minds, just like they did Scout and Jory, and they would end up hating me, just like Scout and Jory hated John. The writing was on the wall. It just - and I thought about hanging myself. I thought about - I didn't have any guns. I didn't have any guns out at the house. I thought about shooting myself. I did have nothing. The only - I didn't - I totally. I didn't even remember about the pistol till that day. Otherwise, I had nothing. I was going to hang myself. I was going to drive my car into an abutment."

(Doc. 12-2 at 117-118.) The court observed that it appeared that Schmidt was contemplating these things on the date of the shooting. It then recessed and allowed Schmidt to review the offer of proof with his attorney. (Id.) When they reconvened, the court asked how the earlier incidences entered his mind or affected him on the day of the shooting. Schmidt responded:

I guess it just kind of came to a head, overwhelmed, and eventually just got - they piled up one after another, just continuously year after year more stress was added. And I guess really the big turning point for me was when the house fell through - the sale of the house fell through. Um, there were more positives than negatives up to that point kind of. And I could work kind of, you know, points when I got kicked out of the house or things like that. But after that, it's like more negatives than positives. And we - with getting in the accident, Barb being around more, it just added more and more stress to an already stressful situation. It came to a head on the 17th.

(Doc. 12-2 at 121.) The court asked whether any one of these circumstances weighed more heavily than the others, to which Schmidt responded:

The isolation, alienation, the trying to come up with money to pay Barb to watch the kids, to keep food on the table when she was not willing to work the EM, the repeated verbal and physical abuse that nobody would believe me because of who - she's the female and I'm the guy."


The court took the matter under advisement, and later ruled:

The record should reflect that the Court conducted an in camera conference with the defendant. And because it was an in camera conference, the Court feels that it cannot make any extensive findings of fact because that would affect the defense of the defendant, so I'm just going to render a decision.
The Court finds that the circumstances that led to the death of Kelly Wing did not involve a provocation and it was not an adequate provocation and denies the motion."

(Doc. 12-11.)

At trial, defense counsel acknowledged in his opening statement that Schmidt killedWing-Schmidt, but argued as follows:

Where we vary on the State's interpretation of this case is Scott Schmidt's intent. They've been telling you what they think his intent is, but you're going to have to determine as

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