State v. Klimas, 78-553-CR
| Decision Date | 20 December 1979 |
| Docket Number | No. 78-553-CR,78-553-CR |
| Citation | 288 N.W.2d 157,94 Wis.2d 288 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Alvin C. KLIMAS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Review Denied.
Donna Tamanaha, argued, Richard L. Cates, State Public Defender, and Charles Bennett Vetzner, Asst. State Public Defender, on brief, for defendant-appellant.
David J. Becker, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., on brief, for plaintiff-respondent.
This is an appeal from an order of the circuit court for Rock County, entered on August 17, 1978, denying a motion for postconviction relief under sec. 974.06, Stats.
Alvin Klimas (defendant) was convicted of second-degree murder after a jury trial on June 8, 1974, for killing his wife, Janice Klimas. He was sentenced to an indeterminate term of not less than five nor more than twenty years of imprisonment. On a direct appeal preceding the present appeal, the defendant challenged only the terms of his sentence. The sentence was affirmed by the Wisconsin Supreme Court in Klimas v. State, 75 Wis.2d 244, 249 N.W.2d 285 (1977).
The present motion and appeal challenge the constitutionality of defendant's conviction. Defendant asserts that the trial court's refusal to allow psychiatric testimony concerning his mental state at the time of the murder, and its refusal to submit a manslaughter instruction to the jury, deprived him of due process of law.
The evidence adduced at trial establishes that defendant and his wife were married in 1960 and had a troubled relationship during most of their marriage. Mrs. Klimas was involved in repeated extra-marital affairs beginning shortly after the couple was married. She left the defendant and the couple's two daughters in 1965, and commenced a divorce action. The defendant successfully defended the action and the two subsequently reconciled. In October, 1973 Mrs. Klimas moved into an apartment, taking the children with her. She again commenced divorce proceedings. Pursuant to a temporary order in that action in January Various witnesses testified at trial as to the defendant's physical and emotional reaction to the breakdown of the marriage. Defendant was employed as an insurance agent, and several of his clients and friends testified that he lost a great deal of weight during the separation and appeared visibly distraught on many occasions. The defendant testified that he was particularly upset at his wife's association with a man named Don Johnson. He said that he had witnessed his wife and Johnson together on several occasions, and that he had overheard and tape recorded many telephone conversations between the two. He said that he had heard Johnson tell his wife to get everything she could out of the divorce. Defendant was concerned that Johnson would receive a half interest in the home he and his wife had purchased just prior to the commencement of the divorce proceedings if Johnson and Janice Klimas got married. He was also concerned, he said, about the welfare of his daughters.
1974, Mrs. Klimas was required to return with the children to the family home in Rockford, Illinois, and the defendant moved to Clinton, Wisconsin where some of his family resided.
During the separation the defendant went out with his wife on dates and had sexual intercourse with her on some occasions. He also threatened her concerning her relationship with Johnson. On one occasion in November, 1973 he pointed an unloaded rifle at her and pulled the trigger. Defendant testified that this incident upset him because he realized that he could have killed her. Various witnesses testified that Janice Klimas told them of an incident in December when the defendant had tried or threatened to strangle her. Defendant denied this, but admitted having tried to frighten his wife on this occasion and asking her if she were "ready to die." Other witnesses testified that about two weeks prior to the killing Janice Klimas had shown them a note which she said she had received from the defendant, along with a bullet, warning her to straighten up and take care of his girls or he would take matters into his own hands.
In early January, the defendant placed an extension and recording device on his wife's phone to intercept her conversations with Johnson. He also followed her on many occasions. He testified that he used the recordings and certain photographs and letters to blackmail his wife into agreeing to place their home in trust for the benefit of their daughters.
On February 4, 1974 the defendant, his wife, and their daughter Lenore met at an attorney's office to discuss the trust agreement. Lenore objected to the agreement, pursuant to which the home would eventually be sold, because she wanted to continue living there. The agreement was not signed, which greatly upset the appellant. He said that although he was not normally a drinking man, he went home from the attorney's office and drank whiskey. Later that evening he visited some friends who testified that he looked sick and was close to tears.
On the morning of the following day, appellant drank whiskey and listened to the tape recordings of his wife's conversations with Johnson. He had arranged on the previous day to take his wife and children out to dinner that night. He said that he drank heavily during the day, but did not feel intoxicated when he went to pick up his family. They had dinner at a restaurant in Rockford. The defendant testified that the atmosphere was tense because of the conflict between him and his daughter over the trust agreement.
After dinner, the defendant took his family for a drive in the country. His wife sat next to him in the front seat of the car and his daughters sat in the rear seat. The defendant testified that he wanted to create an opportunity to be alone with his wife so that he could "scare the daylights out of her" and convince her that he was "desperate." He began to drive towards Clinton. In the car was a bottle of whiskey which he had placed there earlier in the day. In a Kleenex box on the floor of the car near the driver's seat were a .32 and a .22 caliber revolver. He said he had obtained the guns During the drive, the defendant and his wife began arguing about her relationship with Johnson. The radio was on and the children did not hear the conversation. At some point in the conversation defendant requested his wife to give him some whiskey, and she held the bottle while he drank some of it. Later, the defendant pulled the .22 caliber revolver from the Kleenex box, placed it on his lap where the children could not see it, and cocked it. He testified that he was "pretty enraged" at this time. He told his wife to roll down the window on her side of the car, aimed the gun out the window and pulled the trigger three times. The gun misfired each time. The defendant then brought out the .32 caliber revolver and pulled the hammer back. He testified that he told his wife something like "I could kill you."
some weeks previously after an incident during which Johnson and another had followed him. He testified that he bought them for protection, since as an insurance salesman he frequently carried large sums of money in "rough" neighborhoods, and that he had placed them in the car several days beforehand. He also testified that his wife was terrified of guns and that she knew he didn't ordinarily drink much.
Defendant drove to his mother's house in Clinton, intending to drop the children off so he could take his wife to an isolated place and frighten her. Lenore got out of the car and began to walk toward the house. The younger daughter, Dawn, could not get her seatbelt unfastened and remained in the back seat. Mrs. Klimas opened her door and apparently made a move to leave the car, simultaneously pushing defendant's hand and calling to Lenore to get the police. The defendant said that he grabbed for his wife and then pulled the trigger three times. Mrs. Klimas fell from the car, and the defendant sped away. Mrs. Klimas died at the scene from two bullet wounds in her back. The defendant testified that, though he must have meant to pull the trigger, he did not intend to kill his wife and did not "see her" during the shooting.
After leaving the scene of the shooting, the defendant drove to a friend's home 18 miles away and told him he thought he had shot his wife. The defendant then called his attorney and asked him to find out if his wife had been hurt and what had happened to Lenore.
Dawn, who was eleven at the time of trial, testified that during the drive to the friend's house she asked her father why he had shot her mother and he responded that her mother was sinful and that he "just couldn't stand it anymore." The defendant testified that he remembered nothing of this conversation.
The defendant was arrested at his friend's house several hours after the shooting. When told of his wife's death, he cried. He was charged with first-degree murder.
At trial the defendant's sole line of defense was that he was guilty of a crime less than first-degree murder. He entered pleas of not guilty and not guilty by reason of mental disease or defect. Pursuant to sec. 971.175, Stats., a bifurcated trial is required when such pleas are coupled to determine separately the issue of defendant's guilt of the alleged act and the issue of his mental responsibility at the time of the crime. At the outset of the trial the defendant requested a single trial on both issues. After the trial court denied this motion he withdrew his plea of not guilty by reason of mental disease or defect and attempted to introduce psychiatric testimony pertaining to his mental condition at the time of the killing.
The trial court excused the jury and heard a detailed offer of proof in the form of testimony by a court-appointed psychiatrist who...
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