State v. Schmidt, Appeal No. 2015AP457-CR

• Court: Wisconsin Court of Appeals
• Writing for the Court: HRUZ, J.
• Parties: STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. DANIEL L. SCHMIDT, DEFENDANT-APPELLANT.
• Decision Date: 10 May 2016
• Docket Number: Appeal No. 2015AP457-CR

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
DANIEL L. SCHMIDT, DEFENDANT-APPELLANT.

Appeal No. 2015AP457-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

May 10, 2016

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Cir. Ct. No. 2012CF156

APPEAL from a judgment and an order of the circuit court for Oconto County: MICHAEL T. JUDGE, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 HRUZ, J. Daniel Schmidt appeals a judgment of conviction for two counts of intentional homicide and an order denying his postconviction motion. A jury determined that Schmidt killed Kimberly Rose, with whom he had an affair, and her brother, Leonard Marsh. Schmidt challenges the sufficiency of the

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evidence supporting only his conviction for killing Marsh. He also argues he is entitled to a new trial because the circuit court erroneously concluded he had waived the marital privilege with respect to his statement to his wife that he would like to "shoot [Rose], then myself." Finally, Schmidt asserts the court erroneously, and unconstitutionally, excluded expert witness testimony from a child psychologist whom Schmidt retained to testify regarding potential suggestive interview techniques used during police interviews with Rose's son, D. R.

¶2 We reject Schmidt's arguments and affirm the judgment and order. The evidence was plainly sufficient to support the homicide conviction for killing Marsh. The circuit court also correctly concluded Schmidt waived the marital privilege pursuant to WIS. STAT. § 905.11 by disclosing a "significant part" of the communication at issue to a third party when he confirmed to authorities that he told his wife he wanted to kill himself but denied saying he wanted to shoot Rose.¹ Finally, we conclude Schmidt was not constitutionally entitled to present his desired expert testimony regarding suggestive interview techniques, and the circuit court did not otherwise err in excluding it. There was no evidence such techniques were used with D. R., and Schmidt's expert offered no opinion in that regard. Accordingly, Schmidt failed to establish his expert's testimony constituted relevant evidence with probative value that was not substantially outweighed by the risk of unfair prejudice to the State.

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BACKGROUND

¶3 In September 2012, the State charged Schmidt with two counts of first-degree intentional homicide for the shooting deaths of Rose and Marsh on Tuesday, May 19, 2009. The bodies were discovered in a residence Rose and Marsh shared. Marsh was found lying face down on a bed, having suffered wounds to the back from what authorities believed were three, 20-gauge shotgun blasts. Rose had suffered fatal wounds to the head, neck and chest from a single shotgun blast at close range. Over time, police eliminated several suspects, leading them to focus on Schmidt.

¶4 Stephanie, Schmidt's wife, testified at the trial. Stephanie became suspicious in late 2008 that Schmidt was having an affair with Rose. Stephanie's suspicions were confirmed at the end of April 2009 when Schmidt admitted to the affair. Schmidt and Stephanie decided to stay together, and Stephanie stated from that point Schmidt was "just about kissing the ground [Stephanie] walked on."

¶5 Stephanie offered testimony discussing the events between Friday, May 15, and Tuesday, May 19, 2009, the day of Rose's and Marsh's deaths. Stephanie testified that on Friday, five days before the murders, she and Schmidt had a discussion about the affair. Stephanie was "heartbroken" and "felt like [Schmidt] was carrying on with every day doings." Stephanie stated Schmidt responded with a comment about his concern for their marriage, and then he said: "I'd like to shoot her, then myself."

¶6 Stephanie testified about a $1,000 loan Rose had given Schmidt in early 2009 to help him purchase a motorcycle. After Stephanie learned of the affair, the loan was a source of tension in Schmidt and Stephanie's relationship because it required continuing contact with Rose. In addition, Stephanie had

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recently lost her job and had no income. On Schmidt's behalf, Stephanie delivered to Rose what was supposed to be one hundred dollars' worth of marijuana from Schmidt's grow operation as a partial, in-kind payment of the debt.

¶7 On Sunday, two days before the murders, Stephanie received a text message from Rose stating, among other things, "[p]ay back is a bitch," which Stephanie took to suggest Rose felt cheated by the amount or quality of the marijuana. The text message contained a picture that Stephanie could not open on her phone, so Stephanie went to Rose and Marsh's residence to confront Rose about the picture and determine what it was. There, Rose told Stephanie that she had other pictures with Schmidt and that the two had sex one time in Stephanie's car. Rose also told Stephanie she kept a written journal documenting the affair. Stephanie made arrangements with Rose to return on Thursday, May 21, to view the journal.

¶8 After leaving Rose's house, Stephanie went to Schmidt's workplace and confronted him. Schmidt denied having sex in the car and told Stephanie to ignore Rose's claim that she kept a journal. Stephanie was upset and threw her wedding ring at Schmidt. She returned to her residence on Sunday night and packed some clothes, then drove around by herself until very early in the morning on Monday, when she returned home. Stephanie testified that on Monday night, she stayed at home with Schmidt. However, when interviewed prior to trial, Stephanie had been equivocal about her whereabouts that night.

¶9 Stephanie testified she was also at her and Schmidt's residence the next morning, the Tuesday of the murders. According to Stephanie, Schmidt left for work at his normal time, approximately 4:00 a.m. Schmidt arrived back home

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between 9:15 and 9:20 a.m. and appeared irritated and upset. Schmidt left again at 9:30 a.m. in Stephanie's car. Stephanie told police that before leaving, Schmidt made a comment about him picking up their daughter from preschool, which Stephanie thought was "bizarre" because she did not need to be picked up until 11:00 a.m. Schmidt returned home between 10:30 and 10:35 a.m. He appeared to be in a better mood. When Schmidt returned, he parked the car in the garage, which Stephanie found unusual. When Stephanie questioned him about this, he responded he wanted to "keep the sunlight off of it because it's getting kind of beat up." Schmidt was home a very short time before he left to pick up their daughter.

¶10 Stephanie learned of Rose's and Marsh's murders in the afternoon that Tuesday. When Stephanie told Schmidt about the murders, he had "no major reaction" and did not seem upset.

¶11 According to Stephanie, Schmidt offered different explanations for his disappearance on the morning of the murders. Schmidt initially claimed he just "went for a ride" to "clear his mind." Later, Schmidt claimed he intended to visit a friend, Robert Koeller, in Clintonville, Wisconsin, but while en route he realized he did not have enough time to complete the trip before he had to pick up their daughter, and he turned around. Stephanie investigated this assertion by requesting video footage from businesses along the route Schmidt claimed to have taken. The footage Stephanie requested from a bar did not show Stephanie's vehicle passing by at any time. When Stephanie confronted Schmidt with this information, he said it was possible he took a different route.

¶12 Stephanie also testified Schmidt owned a 20-gauge shotgun with a rusty barrel and a wooden stock. She saw the gun at their residence prior to the

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murders. On Tuesday, when Stephanie learned of the murders and discussed them with Schmidt, he talked about the idea of getting rid of the gun. Eventually, believing the gun would implicate Schmidt in the murders, Stephanie agreed he should get rid of it, although she testified she later changed her mind. On Wednesday, May 20, Schmidt told Stephanie he was giving the gun to a friend, Orlin Sanapaw. Stephanie saw a new gun at the residence two days after the murders, which Schmidt claimed was the same gun. Eventually, Schmidt told Stephanie that Sanapaw had destroyed the rusty shotgun.

¶13 Rose's son, D. R., who was eleven-and-one-half years old at the time of the homicides, also testified at trial. D. R. was living with Rose and Marsh when they were murdered. He testified Schmidt and Stephanie "came around a lot," and he confirmed his mother had loaned Schmidt money to buy a motorcycle. D. R. overheard arguments between Schmidt and Rose about the loan and their relationship, and he in particular recalled arguments about a loan payment in marijuana. D. R. testified Rose was not pleased with the amount of marijuana and threatened to go to the police, presumably about Schmidt's grow operation.

¶14 D. R. thought Stephanie and Schmidt came to his house the Monday night before the murders, but he was not certain because he could not see the faces of the two individuals. D. R. testified his mother and Marsh were drinking and fighting that evening, and he went to bed. D. R. woke up sometime between 11:00 and 11:30 p.m. and went to the bathroom. D. R. saw a man and woman sitting on the couch and heard them arguing with his mother about money and marijuana. D. R. went back to bed, but he was curious about who was at the house and looked out the window. He saw a green truck that looked like Schmidt's in the driveway. The man and woman were gone when D. R. awoke at 3:30 a.m.

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¶15 Defense counsel cross-examined D. R. using his prior statements made to the police. D. R. testified at trial that he recognized the man's and woman's voices, but he had previously told police he did not recognize...