State v. Poth

Decision Date02 July 1982
Docket NumberNo. 81-1230,81-1230
Citation108 Wis.2d 17,321 N.W.2d 115
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Bradley John POTH, Defendant-Appellant.
CourtWisconsin Supreme Court

Gerald P. Boyle, Milwaukee, for defendant-appellant.

Thomas J. Balistreri, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

BEILFUSS, Chief Justice.

This is an appeal from an order of the circuit court for Sheboygan county which denied the defendant's motion for post-conviction relief pursuant to sec. 974.06(1), Stats. 1 This court granted the State's petition to bypass the court of appeals under sec. 808.05(1). 2

The defendant, Bradley John Poth, was charged with first-degree murder in the shooting death of his wife, Jacqueline. The couple had been married in February, 1972. Their marriage was a stormy one, marked by numerous arguments and some physical altercations. In July of 1974, the defendant vowed he would never strike Jacqueline again. He kept this vow until immediately before the shooting on May 22, 1977. Despite this promise, the parties separated in August of 1974, and Jacqueline served him with divorce papers. The defendant learned that his wife had been involved in several extramarital affairs with other men, but he still attempted to become reconciled with her. In December, 1975, they resumed living together, but on February 20, 1976, Jacqueline left him again. This pattern continued for the next year, with the couple reconciling and then breaking up again on several occasions.

During May, 1977, they attempted to resume their marriage once again. On May 22nd they went to a picnic with some friends. An argument developed and Jacqueline became very upset and demanded that they leave. As they drove away in the defendant's van, Jacqueline was extremely angry and upset. She shouted at Poth, scratched and hit him. She demanded that he stop the van. When he did so, she jumped out. He followed her and she continued to yell at him and to strike him. Thereupon he broke his "vow" and hit her several times in the face. Poth testified that this was all he remembered about the incident until later, when he recalled driving on the freeway towards Milwaukee.

At trial, a witness described what happened when the shooting occurred. The witness saw Jacqueline cross the road, crying for help. She then saw the defendant walk to the van, pull out a gun and walk at a normal pace towards his wife, with the gun pointed at her. He fired three times and then walked back to the van and drove away at a normal rate of speed.

The defendant did not deny killing his wife. His defenses at trial were that he was not responsible for his actions because he suffered from a mental disease or defect, and alternatively, that he acted in the heat of passion and was thus only guilty of manslaughter. A jury trial was waived and the court found him guilty of second-degree murder and sentenced him to a term of 20 years. The court found Poth not guilty of first-degree murder because it found a reasonable doubt as to his ability to form the specific intent necessary for first-degree murder. 3 It found that his conduct did evince a depraved mind, regardless of human life, as required for second-degree murder. 4 The court considered and rejected the possibility of finding him guilty of the lesser offense of heat of passion-manslaughter. 5 In explaining its reasoning, the court stated in part, "The Court has rejected manslaughter because I am not convinced beyond a reasonable doubt that there was a reasonable or adequate provocation if one uses the standard of the ordinary man which is mandated by the case law in this state."

Poth appealed to the court of appeals, which affirmed the conviction. He then petitioned this court for review, arguing for the first time that the above-quoted statement by the trial court indicated that the court had unconstitutionally shifted the burden to him to prove that adequate provocation existed to justify a conviction on the lesser crime of manslaughter. This court declined to grant the petition for review. The defendant then raised this constitutional issue in a petition for a writ of habeas corpus to the United States District Court for the Eastern District of Wisconsin. The district court ruled that Poth had not exhausted his state law remedies because he had not raised this constitutional argument to the trial court or to the court of appeals. The district court ruled that sec. 974.06, Stats., supra, provided an appropriate method to raise this issue in the state courts and should therefore be employed. Poth appealed the denial of the writ to the United States Court of Appeals for the Seventh Circuit, but subsequently filed a notice of voluntary withdrawal of appeal.

In February, 1981, the defendant made a motion in the trial court, pursuant to sec. 974.06, Stats., to vacate the conviction. He argued that the trial court had improperly shifted the burden of proof to him on the manslaughter issue, in violation of his due process rights. The court denied the motion, acknowledging that it had made a misstatement in ruling on the question of manslaughter. Judge Deehr, the trial judge, explained that he had not shifted the burden of proof from the State to the defendant. He attempted to state, in his oral decision, that he was satisfied beyond a reasonable doubt that there was no reasonable or adequate provocation which would properly give rise to the heat of passion. Judge Deehr had previously explained this misstatement in an affidavit submitted by the State in opposition to the defendant's petition for habeas corpus in the federal district court.

Poth appealed this denial of the motion for postconviction relief to the court of appeals. This court then granted the State's petition to bypass the court of appeals.

This case brings up the issue of the proper allocation of the burden of proof when a defendant claims that his conduct amounted to heat of passion-manslaughter, instead of first or second-degree murder. This question is also presented in two similar cases which we decide today (July 2, 1982), State v. Lee, 108 Wis.2d 1, 321 N.W.2d 108 (1982), and State v. Oliver, 108 Wis.2d 25, 321 N.W.2d 119 (1982). In Lee, we discussed the confusion that has arisen in this state over the distribution of the burden of proof when heat of passion is at issue. We held in Lee that when a defendant introduces sufficient evidence to raise the issue of heat of passion-manslaughter, the State must prove beyond a reasonable doubt that the heat of passion did not exist.

In this case we believe that the trial court correctly applied this standard, despite misstating it. The defendant essentially relies on the single statement by Judge Deehr, quoted above. If we were convinced that the court had actually placed the burden on the defendant to prove heat of passion, then a reversal would be in order. However, several factors persuade us that this was merely a misstatement.

First and most important is the sworn statement by Judge Deehr. In it he clearly states that the quoted statement in question was a misstatement, made while orally announcing his findings of fact and conclusions of law. He ruled from the bench without the benefit of a formal written decision or outline. Judge Deehr states in the affidavit that "the Court was in fact attempting to state, as indicated in other parts of the transcript, that it was satisfied beyond a reasonable doubt that there was no reasonable or adequate provocation which would give rise to the element of heat of passion." Absent this affidavit, it would be more difficult to ascertain whether the court actually recognized the proper standard. In this case, however, we attach substantial credence to the sworn affidavit of the trial judge, setting...

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4 cases
  • State v. Moeller, 90-2152-CR
    • United States
    • Wisconsin Court of Appeals
    • May 30, 1991
    ...(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 reaso......
  • State v. Oliver
    • United States
    • Wisconsin Supreme Court
    • July 2, 1982
    ...agree that this issue will be resolved by our decisions in State v. Lee, 108 Wis.2d 1, 321 N.W.2d 108 (1982), and State v. Poth, 108 Wis.2d 17, 321 N.W.2d 115 (1982). In these cases, which we also decide today, we hold that the literal language of sec. 940.05(1), Stats., requiring that a de......
  • State v. Heisler
    • United States
    • Wisconsin Court of Appeals
    • November 8, 1983
    ...instruction and the state then had to disprove, beyond a reasonable doubt, the existence of heat of passion. See State v. Poth, 108 Wis.2d 17, 21, 321 N.W.2d 115, 118 (1982). If he did not present sufficient evidence, he was entitled to neither a manslaughter instruction nor an instruction ......
  • State v. Lee
    • United States
    • Wisconsin Supreme Court
    • July 2, 1982
    ...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......

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