State v. Moeller, 90-2152-CR

Decision Date30 May 1991
Docket NumberNo. 90-2152-CR,90-2152-CR
Citation163 Wis.2d 527,472 N.W.2d 248
CourtWisconsin Court of Appeals

Appeal from a judgment and an order of the circuit court for Wood county: James M. Mason, Judge.

Circuit Court, Wood County.


Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

EICH, Chief Judge.

Brian Moeller appeals from a judgment convicting him of first degree murder and from an order denying his motion for a new trial. The issues are: (1) whether the trial court improperly refused to instruct the jury on the lesser-included offense of manslaughter (heat of passion) and to give two proposed theory-of-defense instructions; (2) whether Moeller was deprived of the effective assistance of counsel; and (3) whether we should exercise our discretionary authority to grant a new trial in the interest of justice because the real controversy was not fully tried. We resolve all issues against Moeller and affirm the judgment and order.

Moeller, who was seventeen at the time, killed his mother, Shirley Moeller, by clubbing her with a baseball bat and choking her during an argument over his arrest for underage drinking. After a jury trial, he was found guilty of first degree murder and sentenced to life imprisonment.


Moeller argues first that the trial court's refusal to instruct the jury on the lesser-included offense of manslaughter was error. Whether the evidence adduced at trial justifies a lesser-included offense instruction is a question of law which we decide de novo, without deference to the trial court's decision. State v. Wilson, 149 Wis.2d 878, 898, 440 N.W.2d 534, 541 (1989).

The burden of producing sufficient evidence to justify a lesser-crime instruction is on the defendant. State v. Poth, 108 Wis.2d 17, 22-23, 321 N.W.2d 115, 118 (1982). And "[t]o justify submitting lesser degrees of homicide than that charged in the information, there must be a reasonable ground in the evidence for acquittal on the greater charge and for conviction on the lesser charge." Ross v. State, 61 Wis.2d 160, 169, 211 N.W.2d 827, 831 (1973) (citation omitted). The evidence is not to be weighed but is to be considered in the light most favorable to the defendant. Id. at 172-73, 211 N.W.2d at 833.

In cases where, as here, the lesser offense is heat-of-passion manslaughter, the test is part objective and part subjective. The objective element considers whether the provocation was sufficient: whether, under the circumstances of the case, an ordinarily constituted person might have been adequately provoked. State v. Heisler, 116 Wis.2d 657, 660, 344 N.W.2d 190, 192 (Ct.App.1983). The subjective factor looks to the defendant's state of mind at the time the crime was committed: whether it actually was done in the heat of passion. State v. Felton, 110 Wis.2d 485, 508, 329 N.W.2d 161, 172 (1983).

In State v. Williford, 103 Wis.2d 98, 113-14, 307 N.W.2d 277, 283 (1981), the supreme court discussed the two elements in greater detail. As to the objective, or "provocation" element, the court stated:

[T]he heat of passion which 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 [person] as to render his [or her] mind for the time being deaf to the voice of reason: make him [or her] incapable of forming and executing that distinct intent to take human life essential to murder in the first degree, and to cause him [or her], 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....



* * *

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. Williford, 103 Wis.2d at 113, 307 N.W.2d at 283 (citations omitted).

The subjective "state of mind" element of heat-of-passion manslaughter is established by showing that the provocation "actually did produce such a mental disturbance (heat of passion) in the defendant at the time of the homicide." Williford, 103 Wis.2d at 114, 307 N.W.2d at 284.

The trial court declined to give the instruction in this case because it believed that the objective element of the test had not been met--that there was insufficient evidence of provocation to support the instruction.

Moeller argues to the contrary. He contends that the test was met because his mother was such an overbearing, domineering woman that even an ordinarily constituted person in his circumstances would have been sufficiently provoked to react with violence toward her. In support of that theory, he offered extensive evidence on the history of his relationship with his mother and the events occurring on the night of her death.

Two social workers described Shirley Moeller as an "over-involved," "over-protective," "smothering" mother. A third stated that theirs was the most "intense" parent-child relationship he had seen in twenty-four years of practice. A staff member at Brian's high school testified that she had observed Shirley escorting Brian to the very door of the school, to Brian's embarrassment and humiliation, a few months before the murder.

A friend of Brian's testified that when Brian visited his house, Shirley would telephone every few minutes and sometimes would drive by the house while he was there. The friend's parents, repeating the testimony about her telephone calls, also described Shirley's insistence on driving Brian to and from their house, despite the fact that they lived only two or three blocks away. They described Shirley as "extremely domineering" and felt that her "overconcern" for Brian was "not natural."

Brian testified that he and Shirley argued nearly every day and that he would often lock himself in his room to avoid her. He also stated that for several years Shirley had him give her back-rubs while she was under the covers of her bed, unclothed from the waist up, and that he found this to be a disturbing experience. He acknowledged, however, that he and his mother had never had any "physical confrontation" prior to the night of her death.

Brian had been picked up by the police on that night for underage drinking and Shirley was called to the police station. Brian returned home first and began packing clothes in a plastic bag, intending to run away. When Shirley returned home a short time later, Brian went to his room and closed the door. Hearing Shirley pounding on the door, he turned the knob and it "came flying open." According to Brian, Shirley was angry and started arguing with him about his drinking and other matters. When she saw the plastic bag full of clothes, she said that he was "mistaken" if he thought he would run away and told him she would sleep in a chair in his room that night so she could watch him. She then got a screwdriver and began removing the lock on Brian's door. At that point, he threw a camera at her and picked up a baseball bat.

Brian testified that when his mother saw the bat she said to him: "Try it and see what will happen," whereupon he began hitting her with the bat. He could not recall how many times he hit her before he dropped the bat and began choking her with his hands. At some point, he picked up the bat again, holding it against her neck, and eventually choked her to death. He testified that his actions that night were the result of his anger, that he had no "control over [his] actions" and did not intend to kill his mother.

Other evidence argued on appeal as supporting a heat-of-passion theory related Brian's own personality and family history: that he and Shirley had an unstable home life in that they had moved several times during his childhood; that he had been in and out of special education programs all his life; and that he was unsophisticated and appeared immature for his age.

Still other evidence indicated that Brian first told police officers that while he was strangling his mother she said to him, "[d]on't be stupid, Brian," which he understood to be a plea that he not kill her. 1 He also told the officer that he started choking his mother with his hands, then he put the bat across her throat to choke her, and when "that did not work," he continued choking her with his hands. In addition, there was testimony that he had told a friend about his recurring dreams of killing his mother and when the friend suggested that he "couldn't get away with it," he replied that he could and would flee to Iowa, where he had once lived, to escape--which in fact he was attempting to do when he was apprehended after the incident.

Moeller, relying primarily on the supreme court's decision in Felton, a "battered spouse" case, argues that we should consider the subjective heat-of-passion test not just in light of how an ordinary person would react in the circumstances, but how an ordinary person of Moeller's age, intellect and life experience would have reacted. He equates his position with that of the battered wife in Felton and maintains that when the evidence of Shirley's dominance and overprotection is considered, the trial court's error in refusing to instruct on heat-of-passion manslaughter becomes plain. We disagree.

In Felton, the defendant, Rita Felton, was convicted of killing her husband in his sleep, after being physically abused by him throughout their twenty-three-year marriage. He beat her, regularly and severely, and the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT