State v. Schmidt

• Citation: 2012 WI App 113,824 N.W.2d 839,344 Wis.2d 336
• Decision Date: 05 September 2012
• Docket Number: No. 2011AP1903–CR.,2011AP1903–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Scott E. SCHMIDT, Defendant–Appellant.
• Court: Court of Appeals of Wisconsin

344 Wis.2d 336

824 N.W.2d 839

2012 WI App 113

STATE of Wisconsin, Plaintiff–Respondent,

v.Scott E. SCHMIDT, Defendant–Appellant.^†

No. 2011AP1903–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 22, 2012.

Opinion Filed Sept. 5, 2012.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna L. Hintze, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, assistant attorney general, and J.B. Van Hollen, attorney general.

Before HOOVER, P.J., PETERSON and MANGERSON, JJ.

HOOVER, P.J.

[344 Wis.2d 340]¶ 1 Scott Schmidt appeals a judgment of conviction for first-degree intentional homicide and an order denying postconviction relief. ¹ Schmidt argues he was denied his right to present a defense when the trial court ruled before trial that Schmidt could not present any evidence in support of an adequate provocation mitigation defense. Alternatively, Schmidt argues the court deprived him of his right to counsel during an in camera hearing where Schmidt testified in support of his mitigation defense. We conclude Schmidt's proffered evidence was inadequate to raise a provocation issue, as a matter of law. We also reject Schmidt's right-to-counsel argument. We therefore affirm.

BACKGROUND

¶ 2 Schmidt shot and killed his estranged wife Kelly Wing–Schmidt on Friday, April 17, 2009. Schmidt fired multiple rounds from his .22 caliber revolver, striking Wing–Schmidt three times in the head, twice in the left hand, and twice in the right arm.

[344 Wis.2d 341]¶ 3 The State charged Schmidt with first-degree intentional homicide. Prior to his trial, Schmidt moved to introduce other acts evidence in support of an adequate provocation defense. Schmidt asserted the provocative acts consisted of “false allegations, controlling behaviors, threats, isolation, unfaithfulness, verbal abuse and arguments.” The State responded that the motion lacked specificity regarding the identity of the witnesses, a summary of their testimony, or the specific items of evidence the defense wanted to introduce to establish adequate provocation.

¶ 4 Schmidt ultimately replied by submitting two documents. The first was an offer of proof listing twenty-nine potential witnesses, along with a brief synopsis of their testimony. The second document included a legal analysis of the adequate provocation defense and an offer of proof with a timeline of events from 2004 to the day of the shooting. The trial court later heard Schmidt testify in camera. Following the in camera testimony, the court denied Schmidt's motion to introduce evidence in support of an adequate provocation defense.

¶ 5 The case proceeded to trial with the defense acknowledging in its opening statement that Schmidt shot and killed Wing–Schmidt, but contending he did not act with an intent to kill. The jury found Schmidt guilty. In a postconviction motion, Schmidt argued that he was denied his right to present a defense when the court excluded all adequate provocation evidence and that he was denied his right to counsel at the in camera hearing. The court denied the motion, and Schmidt appeals.

DISCUSSION

Adequate Provocation Defense

¶ 6 Schmidt argues he was entitled to present evidence to the jury in support of an adequate provocation defense. Adequate provocation is an affirmative defense to first-degree intentional homicide that mitigates the offense to second-degree intentional homicide. Wis. Stat. § 940.01(2)(a). ² The defense applies if “[d]eath was caused under the influence of adequate provocation as defined in s. 939.44.” Id. Adequate provocation is defined as follows:

(a) “Adequate” means sufficient to cause complete lack of self-control in an ordinarily constituted person.

(b) “Provocation” means something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death.

Wis. Stat. § 939.44(1). “ ‘Complete loss of self-control’ is an extreme mental disturbance or emotional state. It is a state in which a person's ability to exercise judgment is overcome to the extent that the person acts uncontrollably. It is the highest degree of anger, rage, or exasperation.” Wis JI—Criminal 1012 (2006).³

¶ 7 Adequate provocation includes both subjective and objective components. State v. Felton, 110 Wis.2d 485, 508, 329 N.W.2d 161 (1983). As to the subjective component, the defendant must actually believe the provocation occurred, and the lack of self-control must be caused by the provocation. SeeWis. Stat. § 939.44(1); Felton, 110 Wis.2d at 508, 329 N.W.2d 161. As to the objective component, the provocation must be such that would cause an ordinary, reasonable person to lack self-control completely, and the defendant's belief that the provocative acts occurred must be reasonable. SeeWis. Stat. § 939.44(1); Felton, 110 Wis.2d at 508, 329 N.W.2d 161.

¶ 8 Once a defendant successfully places an affirmative defense in issue, the State is required to disprove the defense beyond a reasonable doubt. State v. Head, 2002 WI 99, ¶¶ 106–07, 255 Wis.2d 194, 648 N.W.2d 413;see alsoWis. Stat. § 940.01(3). Thus, the lack of the defense becomes an element of the crime. SeeWis. Stat. § 940.05(1)(a). “To place a mitigating factor in issue, there need be only ‘some’ evidence supporting the defense.” Head, 255 Wis.2d 194, ¶ 112, 648 N.W.2d 413 (citing Felton, 110 Wis.2d at 507, 329 N.W.2d 161). Our supreme court explained:

“The burden upon the defendant where a heat-of-passion defense is projected is merely the burden of production as opposed to the burden of persuasion. It is for the accused to come forward with some evidence in rebuttal of the state's case—evidence sufficient to raise the issue of the provocation defense. The burden of persuasion, of course, always remains upon the state.”

Id., ¶ 111 (quoting Felton, 110 Wis.2d at 507, 329 N.W.2d 161).

[344 Wis.2d 344] ¶ 9 When applying the some evidence standard, “the circuit court must determine whether a reasonable construction of the evidence will support the defendant's theory viewed in the most favorable light it will reasonably admit of from the standpoint of the accused.” Id., ¶ 113 (quotation marks and citations omitted). “In other words, ‘if under any reasonable view of the evidence the jury could have a reasonable doubt as to the nonexistence of the mitigating circumstance, the burden has been met.’ ” Id. (quoting Walter Dickey, David Schultz & James L. Fullin, Jr., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L.Rev. 1323, 1347).

¶ 10 Schmidt and the State dispute the proper formulation of the test for determining the admissibility of provocation evidence at trial, the scope of evidence that may be considered, and, ultimately, whether the evidence presented here was sufficient to raise an issue of adequate provocation.

A. Test for admissibility

¶ 11 Schmidt first argues that the standard for introducing evidence of adequate provocation at trial is lower than the “some evidence” standard that applies when later determining whether the defendant is entitled to a jury instruction on the defense. This argument arises from the following commentary in Head:

We think that the standard for giving a jury instruction on self-defense may, in some circumstances, be higher than the standard for admitting self-defense evidence at trial, because a defendant's claim of self-defense may be so thoroughly discredited by the end of the trial that no reasonable jury could conclude that the state had not disproved it. In any event, the threshold for admitting evidence at trial is either lower or the same as the threshold for giving a jury instruction. This means that if, before trial, the defendant proffers “some” evidence to support her defense theory and if that evidence, viewed most favorably to her, would allow a jury to conclude that her theory was not disproved beyond a reasonable doubt, the factual basis for her defense theory has been satisfied.

Head, 255 Wis.2d 194, ¶ 115, 648 N.W.2d 413. Schmidt contends that unless an offer of proof is to become a mini-trial, a defendant must be given some latitude in the admission of provocation evidence.

Thus, he asserts, a trial court should admit any evidence that is relevant to a mitigation defense. In Schmidt's view, a court should examine “the relevancy and admissibility of each piece of proffered evidence,” rather than whether the totality of the defendant's proffered evidence is sufficient to raise an issue as to adequate provocation.⁴

¶ 12 The some evidence standard is already a low bar. See State v. Peters, 2002 WI App 243, ¶ 27 n. 4, 258 Wis.2d 148, 653 N.W.2d 300 (“The ‘some’ evidence standard is a relatively low threshold, in part because of the distinct functions of judge and jury.”). Schmidt's proposed lower standard is really no standard at all. It would permit the wholesale introduction of evidence that would otherwise be inadmissible or irrelevant and would unnecessarily prolong and complicate trials. A defendant could introduce all matter of unsavory evidence about his or her victim regardless of whether there was any potentially viable provocation defense. This would ultimately require the striking of substantial amounts of testimony, potentially from numerous witnesses. While the same risk necessarily exists under the already low “some evidence” standard, Schmidt's proposal opens the door too wide. We therefore reject Schmidt's “mere relevance” standard. The defendant's proffered evidence of provocation must be examined as a whole to determine whether the some evidence threshold is satisfied. It is an all-or-nothing determination as to whether the jury hears any evidence of the affirmative defense.

B. Scope of evidence considered

¶ 13 We next address, and reject, the State's argument that, when undertaking the some evidence analysis, the only...