State v. Lowe
| Decision Date | 25 July 1989 |
| Docket Number | No. 89-0209-CR,89-0209-CR |
| Citation | 151 Wis.2d 786,447 N.W.2d 395 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Wayne O. LOWE, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Bayfield county: DENNIS C. BAILEY, Judge.
Before CANE, P.J. and MYSE and SUNDBY, JJ.
Wayne O. Lowe appeals a judgment of conviction of one count of first-degree murder, contrary to sec. 940.01, Stats. (1985-86), 1 and one count of attempted murder, contrary to secs. 940.01 and 939.32, Stats. In June, 1987, Lowe entered a tavern in which his ex-wife, Elizabeth Peterson, and her boyfriend, John McNamara, were seated at the bar eating and drinking. Lowe approached the couple from behind, and, without saying a word, he shot each of them in the back of the head. McNamara was killed instantly while Peterson survived. Lowe does not dispute the shootings; instead, he asserts that the shootings were done in the heat of passion and, as such, justify manslaughter and attempted manslaughter convictions. On appeal, Lowe argues that:
1) He was denied a full and fair chance to present his heat of passion defense during the trial's guilt phase;
2) The trial court improperly admitted repetitious, irrelevant, nonprobative and unfairly prejudicial evidence;
3) The relationship between the guilt phase (Phase I) and the criminal responsibility phase (Phase II) was handled in such a manner that precluded serious consideration of Lowe's heat of passion defense during the guilt phase;
4) He was denied a full and fair chance to present his case during the trial's criminal responsibility phase (Phase II);
5) A new trial should be granted in the interest of justice.
We reject Lowe's arguments and affirm the judgment.
At the time of the shootings, Lowe was approximately sixty years old. As a youth, Lowe overcame many adversities. He was born premature with a congenital birth defect. As a result, he was disabled and unable to walk without assistance until his eighth or ninth birthday. Moreover, he never grew taller than five feet. Because of his physical condition, Lowe suffered verbal abuse from adults and children. Nevertheless, Lowe graduated from high school and attended business college for two years. In 1952, Lowe successfully ran for the position of Washburn city clerk. Lowe held this position for approximately thirty-four years until his suspension following his arrest for this offense. In the 1950's, Lowe married. This union, which lasted approximately eleven years, produced four daughters.
After his first divorce, Lowe and Elizabeth Peterson were married in 1967. The couple had two children. During this second marriage, Lowe discovered that Peterson was not only promiscuous, but also had developed a drinking problem. Lowe and Peterson were divorced in 1979. However, the couple still maintained an intimate relationship and, in 1983, moved back together. This was due in part to their relationship and in an effort to raise together their youngest child, Wayne, Jr. Upon moving back together, Lowe and Peterson agreed to share living expenses equally; however, Lowe assumed the financial burden of running the household, including the mortgage. In fact, Lowe lost his son's college fund that was used as collateral for a low interest home loan. Their attempted reconciliation began to deteriorate when the couple disagreed over the rearing of Wayne, Jr., and Lowe's discovery of Peterson's involvement with other men, especially with an alleged pornographic photographer. In January, 1987, Lowe asked Peterson to move from the house, which she eventually did in May, 1987. Between January and May, 1987, Lowe became increasingly aware of Peterson's romantic involvement with other men, including John McNamara. Sometime before the shootings, Lowe learned that Peterson and McNamara were dating. Peterson testified that during this time frame, Lowe threatened her and any man in her company.
Despite this turbulent relationship, Lowe and Peterson maintained contact after Peterson moved out in May, 1987. This was in part due to Wayne, Jr.'s young age. Lowe testified that their contact was not without confrontation and that Peterson had ridiculed Lowe about his physical condition in public and, further, that they continued to disagree over Peterson's care of their young son. Three days before the shooting, Lowe confronted Peterson about allowing Wayne, Jr., to frequent bars with her and keeping him out until the early morning hours. Lowe also testified that sometime before the shootings, he became increasingly despondent and unable to cope with life, that he had difficulty concentrating on his work, that sleeping was difficult, and that he was subject to crying spells.
The day before the shootings, Lowe drove to Ames, Iowa, with a friend who was transporting his grandchildren. They left at 4 a.m. and returned that next day at 2 a.m.; Lowe went to bed upon returning home and arose around 8:30 a.m. Upon rising, Lowe did his laundry and some yard work. Later in the day, he went to his friend's cabin to visit him, but his friend was not yet awake. Lowe then went into the woods near his own cabin to target shoot with a .45 caliber revolver. When he was done, he returned to his friend's cabin, where his friend greeted him. They talked awhile, and Lowe left, driving north to Cornucopia, Wisconsin, where he stopped for a beer at a local tavern.
After leaving the tavern, Lowe drove along various lakes where he noticed picnickers and bathers. He stopped several times along the way to talk to individuals for no particular reason, other than to make contact. While driving back to town, Lowe realized that he had not eaten so he stopped for a sandwich. He stopped at the tavern where Peterson and McNamara were eating and drinking. After climbing the steps to the tavern, he saw their cars parked outside; however, he does not recall carrying his revolver into the tavern. Lowe entered the tavern and shot Peterson and McNamara from behind.
The state charged Lowe with one count of first-degree murder and one count of attempted first-degree murder. Lowe entered pleas of not guilty and not guilty by reason of mental disease or defect. A bifurcated trial was held. At trial, the court instructed the jury on the elements of first-degree murder and attempted first-degree murder as well as the lesser-included offenses of heat of passion manslaughter and attempted heat of passion manslaughter. The jury found Lowe guilty of first-degree murder and attempted murder and criminally responsible. The trial court sentenced Lowe to life and eight years to run consecutively.
Lowe argues that the trial court improperly excluded psychiatric and lay testimony that would have supported his heat of passion defense and thereby deprived him of an opportunity to present his defense. Before we address the issue of admissibility, we must first determine whether sufficient evidence exists to raise a heat of passion defense. See State v. Lee, 108 Wis.2d 1, 11-12, 321 N.W.2d 108, 113 (1982).
Under sec. 940.05(1), Stats. (1985-86), 2 whoever causes the death of another without intent to kill and while in the heat of passion is guilty of manslaughter. Essentially, the heat of passion element of this offense requires two inquiries: one, whether an ordinary person under the same circumstances would have been provoked to act in the heat of passion; and two, whether the provocation was sufficient to cause the defendant to act in the heat of passion. State v. Williford, 103 Wis.2d 98, 113-14, 307 N.W.2d 277, 283-84 (1981).
The first inquiry, whether adequate provocation exists, is an objective test requiring provocation to cause an ordinary person to be overcome with such emotion or mental disturbance, as defined by heat of passion. The type and degree of heat of passion necessary to reduce 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....
Id. at 113, 307 N.W.2d at 283 (quoting Johnson v. State, 129 Wis. 146, 160, 108 N.W. 55, 60-61 (1906)).
"The provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror."
Id. (quoting 21 Am. & Eng.Ency. of Law (2d ed. 177). Whether adequate provocation exists is a question of law that we decide without deference to the trial court. See id. at 112-14, 307 N.W.2d at 283-84. 3 In deciding this question, we view the evidence most favorable to the defendant. Id. at 114, 307 N.W.2d at 284.
The second inquiry, whether the provocation actually did produce heat of passion in the defendant at the time of the incident, is a subjective test that requires an examination of the defendant's state of mind. See id. at 113-14, 307 N.W.2d at 283-84. This is a question of fact, and we give deference to the fact finder.
The state has the burden of disproving beyond a reasonable doubt the existence of adequate provocation. Lee, 108 Wis.2d at 11, 321 N.W.2d at 113. Before this burden is placed upon the state, however, the defendant must introduce sufficient evidence to...
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