State v. Lee

Decision Date02 July 1982
Docket NumberNo. 81-227,81-227
Citation321 N.W.2d 108,108 Wis.2d 1
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. John Lewis LEE, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Ben Kempinen, Madison, Supervising Atty., Legal Assistance to Institutionalized Persons Program, for defendant-appellant-petitioner.

Sally L. Wellman, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

David E. Schultz, Madison, Reporter, Wisconsin Criminal Jury Instructions Committee, for amicus curiae.

BEILFUSS, Chief Justice.

This is a review of a decision of the court of appeals which affirmed an order denying a motion for a new trial pursuant to sec. 974.06(1), Stats. 1 The petitioner, John Lewis Lee, was convicted of first-degree murder in 1972. His conviction was affirmed by this court in 1974 in Lee v. State, 65 Wis.2d 648, 223 N.W.2d 455 (1974). In 1979, Lee filed a motion for postconviction relief under sec. 974.06, Stats. The trial court, Honorable Leander J. Foley, Jr., denied the motion and the court of appeals affirmed.

The issues in this case, as well as in the similar cases of State v. Poth, 108 Wis.2d 17, 321 N.W.2d 115 (1982), and State v. Oliver, 108 Wis.2d 25, 321 N.W.2d 119 (1982) (mandated July 2, 1982), involve the distinction between first-degree murder, defined in sec. 940.01, Stats., and manslaughter committed in the heat of passion, contrary to sec. 940.05(1). We conclude that when a defendant introduces sufficient evidence to raise the issue of heat of passion, the burden falls upon the State to prove beyond a reasonable doubt that the defendant did not act in the heat of passion.

The record in this case reveals the following facts: 2 Lee was married and had two children when he met Shirley Adams on January 8, 1972. He started to associate with her and saw her often over the next several weeks. On February 2d he forged a check for $200 from the fraternal lodge of which he was the treasurer, giving Adams some of the proceeds. On that same date, Lee's wife discovered Lee and Adams together in a tavern. Lee and his wife engaged in a heated argument which continued intermittently until February 4th, the day the shooting occurred.

Lee seems to have spent most of the afternoon of February 4th drinking in several taverns. He also took four prescription pills for relief from asthma. At approximately 5 p.m., he returned home and again argued with his wife. He agreed to leave the house if his wife would give him his revolver. He took the gun and resumed drinking at several bars. At about 9:45 p.m., he went to the Flamingo Tavern where he encountered Shirley Adams. They quarreled and she left the bar with Lee following her. Their argument continued outside until she dared him to shoot her. Lee fired several shots at her; five bullets were recovered from her body.

Lee was arrested and at trial the jury was instructed as to first and second-degree murder and the heat of passion-manslaughter. The jury returned a verdict of first-degree murder.

On appeal to this court, Lee argued that the trial court erred in not giving an instruction, sua sponte, to the jury on intoxication as a defense. This court held that the defense had elected as a strategic choice to pursue the theory that Lee had acted in the heat of passion, stimulated by intoxication, rather than claiming that he had been so intoxicated that he lacked the requisite state of mind for commission of the offense. Therefore, we held that the trial court was not required to act on its own initiative and give the instruction for the alternative defense. Lee v. State, supra at 655-58, 223 N.W.2d 455.

In July of 1979, Lee filed a motion challenging his conviction under sec. 974.06, Stats. His principal argument was that the trial judge misread the heat of passion-manslaughter instruction, which shifted the burden to him to show the presence of heat of passion, in violation of due process. The trial court denied the motion, ruling that the evidence failed to show adequate provocation to support a manslaughter verdict, and thus the instruction on manslaughter should not even have been given. The court of appeals agreed, affirming the denial of the motion. In order to attempt to resolve the confusion between manslaughter as contrasted to first or second-degree murder, this court granted the petition for review.

The issue in this case arises as a result of inconsistencies between the homicide statutes, the Wisconsin Jury Instructions uniformly given in cases of this type, and past decisions of this court.

Sec. 940.01, Stats., defines first-degree murder as causing "the death of another human being with intent to kill...." This intent is further defined in sub. (2) as "the mental purpose to take the life of another human being." Sec. 940.02 describes second-degree murder as a killing perpetrated by an act imminently dangerous to others and evincing a depraved mind, regardless of human life. The manslaughter statute involved in this case is sec. 940.05(1), which states: "Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony: (1) Without intent to kill and while in the heat of passion."

At the trial in this case the jury was instructed on first- and second-degree murder and on manslaughter. The pattern Wisconsin Criminal Jury Instruction, # 1130, was given. This instruction first defines the elements of first- and second-degree murder. It then informs the jury about the crime of manslaughter:

"1130 MANSLAUGHTER: HEAT OF PASSION: FIRST AND SECOND

DEGREE MURDER SUBMITTED

"Manslaughter, as defined in section 940.05(1) of the Criminal Code of Wisconsin, is committed by one who causes the death of another human being without intent to kill and while in the heat of passion.

"Before the defendant may be found guilty of manslaughter while in the heat of passion, you must be satisfied by the evidence beyond a reasonable doubt that there were present all of the elements of either first degree murder or of second degree murder as I have defined them to you, except that you find that the defendant killed ... while in the heat of passion caused by a reasonable, adequate provocation, or you have a reasonable doubt thereof.

"The phrase 'heat of passion,' which under the Criminal Code will reduce what would otherwise be murder to manslaughter, is such mental disturbance caused by a reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason, make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree, and to cause him, uncontrollably, to act from the impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition. It is not inconsistent with intelligent action, with consciousness of what one is doing, and of the responsibility therefore.

"The provocation, in order to be sufficient in law, must be such as to produce naturally and instantly in the mind of a person ordinarily constituted, and which did produce in the mind of the defendant, the highest degree of exasperation, rage, anger, sudden resentment, or terror.

"If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant caused the death of ..., and that under the instruction I have given you, the defendant caused ...'s death under circumstances which would otherwise be murder in the first degree, or murder in the second degree, but you find that the defendant committed the act causing ...'s death while in the heat of passion produced by adequate provocation, or you have a reasonable doubt thereof, and you are satisfied beyond a reasonable doubt that the defendant committed all of the elements of the offense of manslaughter as previously defined to you, then you should find the defendant ... guilty of manslaughter.

"If, however, you are not so satisfied, then you must find the defendant (not guilty) (not guilty of manslaughter)."

Judge Foley read this instruction properly in this case except that he twice substituted the word "and" in place of the word "or." As delivered by the judge, the second paragraph quoted above, stated:

"Before the defendant may be found guilty of manslaughter while in the heat of passion, you must be satisfied by the evidence beyond a reasonable doubt that there were present all of the elements of either first degree or second degree murder as I have defined them to you, except that you find that the defendant killed Shirley Adams while in the heat of passion caused by a reasonable, adequate provocation and you have a reasonable doubt thereof." (Emphasis added.)

The judge made a similar misstatement in the fifth paragraph quoted above.

The petitioner argues that if the instruction had been correctly given, the jury would have been informed that it should return a verdict of manslaughter if it found reasonable, adequate provocation for the killing, or if it believed there was at least a reasonable doubt that such provocation existed. As the instruction was read, it required the jury to find adequate provocation and to have a reasonable doubt thereof. Read that way the instruction did not make any sense. Because of this confusion and because of the use of the term "find" in the instructions, the petitioner argues that the jury might well have become confused and believed that the burden of proof as to the existence of provocation was placed upon the defendant. This is alleged to be a violation of Lee's constitutional right of due process, for the burden should have been placed upon the State to disprove the existence of reasonably adequate provocation.

Lee relies upon the United States Supreme Court case of Mullaney v. Wilbur, ...

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28 cases
  • State v. Rewolinski
    • United States
    • Wisconsin Supreme Court
    • December 20, 1990
    ...The "heat of passion" argument that the defendant wishes to make has a subjective element and an objective element. State v. Lee, 108 Wis.2d 1, 12, 321 N.W.2d 108 (1982). The district attorney conceded at trial that the defendant, subjectively, acted in the "heat of passion." With respect t......
  • Haas v. Abrahamson
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 7, 1990
    ...difference between the two offenses being the specific intent to kill required for a first-degree murder conviction. State v. Lee, 108 Wis.2d 1, 321 N.W.2d 108 (1982). Thus, Haas' proffer of the psychiatrist and psychologist to state that, due to the stress-induced disillusionment Haas was ......
  • State v. Harp, 87-0212-CR
    • United States
    • Wisconsin Court of Appeals
    • May 11, 1989
    ...were defective. Because intent to kill is an element of first-degree murder but not of second-degree murder, State v. Lee, 108 Wis.2d 1, 13, 321 N.W.2d 108, 114 (1982), the trial court inferred from the guilty verdict on second-degree murder that the jury found defendant had not intended to......
  • State v. Felton
    • United States
    • Wisconsin Supreme Court
    • February 3, 1983
    ...lawyer would, had he known the law, been able to introduce sufficient evidence to raise the heat-of-passion issue. State v. Lee, 108 Wis.2d 1, 11, 321 N.W.2d 108 (1982). The burden upon the defendant where a heat-of-passion defense is projected is merely the burden of production as opposed ......
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1 books & journal articles
  • Malice in Nebraska
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 76, 2021
    • Invalid date
    ...(Md. 1990); State v. Hes-lop, 639 A.2d 1100 (N.J. 1994); State v. Hatcher, No. 95-279, 1997 WL 659359 (Vt. Oct. 24, 1997); State v. Lee, 321 N.W.2d 108 (Wis. 1982). Other states place the burden on the defendant to prove provocation. See, e.g., State v. Kingsley, 851 P.2d 370 (Kan. 1993); S......

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