State v. Wakeman, No. 2007AP1955-CR (Wis. App. 8/12/2008)

Decision Date12 August 2008
Docket NumberNo. 2007AP1955-CR.,2007AP1955-CR.
PartiesState of Wisconsin, Plaintiff-Respondent, v. Susan L. Wakeman, Defendant-Appellant.
CourtWisconsin Court of Appeals

APPEAL from a judgment of the circuit court for Forest County: ROBERT A. KENNEDY, JR., Judge. Affirmed.

Before Hoover, P.J., Peterson and Brunner, JJ.


Susan Wakeman appeals a judgment of conviction, entered upon a jury's verdict, on one count of first-degree intentional homicide. Wakeman asserts multiple trial court errors and further contends the jury erred when it concluded that, although she suffered a mental disease or defect, she was able to appreciate the wrongfulness of her conduct or conform her behavior to the law. We reject Wakeman's arguments and affirm the judgment.


¶ 2 On February 22, 2004, following a night of drinking, Wakeman and others ended up at Louis Shepard's home. While at the house, Shepard allegedly attempted to sexually molest Wakeman. Further, a fight of some sort erupted and Wakeman was physically assaulted by Shepard and others. Wakeman was able to call 911, then break away from the crowd and flee to her home less than one-quarter of a mile away.

¶ 3 At her home, Wakeman retrieved two knives. She also woke her grandson who, armed with a loaded gun, returned with her to Shepard's house. There, Wakeman fatally stabbed Shepard twice. She was arrested almost immediately and confessed multiple times. The jury convicted her of first-degree intentional homicide.1

¶ 4 Wakeman, however, had asserted she was not guilty by reason of mental disease or defect, and her trial thus proceeded to the mental responsibility phase. Wakeman contended that a history of depression and mood-altering medication, some of which she had ingested on the 22nd, coupled with her night of heavy drinking and the toll of the assault caused her to "snap."

¶ 5 The jury concluded that Wakeman did, in fact, have a mental disease or defect. However, it also determined that she did not lack the capacity to appreciate the wrongfulness of her actions or conform herself to the requirements of the law. Wakeman was sentenced to life in prison with the possibility of extended supervision after twenty-four years. She appeals, alleging multiple errors. Additional facts will be included as necessary in the discussion.

I. Evidence in the Mental Responsibility Phase

¶ 6 Wakeman argues that she "proved by the great weight of the evidence that she was not criminally responsible for her conduct" and, therefore, the jury erred when it found her culpable. Under WIS. STAT. § 971.15(1)2, a defendant

is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law.

The defendant must establish this affirmative defense "to a reasonable certainty by the greater weight of the credible evidence." WIS. STAT. § 971.15(3). Whether the defendant has met this burden of proof is a question of fact for the jury. State v. Leach, 124 Wis. 2d 648, 660, 370 N.W.2d 240 (1985). We therefore will not upset the jury's determination if it is supported by sufficient credible evidence. State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 725 (1979).

¶ 7 Here, although the jury concluded Wakeman had a mental disease or defect, it also found she did not lack the "substantial capacity either to appreciate the wrongfulness of [her] conduct or conform [her] conduct to the requirements of law." WIS. STAT. § 971.15(1); WIS JI—CRIMINAL 605. But Wakeman argues the jury should have found otherwise—that she lacked the ability to appreciate the error of her ways—because she presented two experts to support her position, whereas the State presented testimony from a single expert who applied an incorrect legal standard.

¶ 8 "Greater weight" of the evidence is not the same as a greater quantity of evidence. The jury is the sole arbiter of credibility and weight to be assigned to testimony. Morden v. Continental AG, 2000 WI 51, ¶39, 235 Wis. 2d 325, 611 N.W.2d 659. Therefore, even uncontradicted expert opinion need not be accepted by the jury. Sarinske, 91 Wis. 2d at 48. Here, it is evident that the jury rejected the experts' opinion in favor of Wakeman's own explanation for her behavior: she testified she was angry and drunk. It was therefore within the jury's province to conclude that, although Wakeman may in fact suffer from a mental disease or defect, the illness was not a factor in the homicide.

II. Required Testimony

¶ 9 Wakeman next argues the trial court erred by requiring her to testify, contrary to her Fifth Amendment rights. While a pretrial order states Wakeman "must testify in order to raise the issue of self-defense[,]" a review of the record indicates that the written document is overly broad and does not accurately reflect the trial court's intent. See Cashin v. Cashin, 2004 WI App 92, ¶22, 273 Wis. 2d 754, 681 N.W.2d 255 (resolving conflicts between oral and written pronouncements hinges on the court's intent).

¶ 10 During a jury instruction conference held the day before Wakeman ultimately testified, the court had opined that Wakeman's statement to police appeared to support a theory of self-defense, whether she testified or not. Further, the court concluded both the perfect and imperfect self-defense instructions were warranted.

¶ 11 It appears that the reason a discussion about Wakeman testifying occurred because she was contemplating offering evidence under McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973). McMorris evidence is evidence "of prior specific acts of violent behavior of the victim of an assault or homicide where self-defense is in issue" and which is within [the defendant's] knowledge at the time of the incident. McAllister v. State, 74 Wis. 2d 246, 250, 246 N.W.2d 511 (1976) (quoting McMorris, 58 Wis. 2d at 152).

¶ 12 Because "only evidence as to specific acts of which the defendant had knowledge is admissible[,]" McAllister, 74 Wis. 2d at 250, a defendant will frequently have to testify about how he or she came by the knowledge. Here, the court indicated that before it would permit corroborating evidence of Shepard's prior violence, Wakeman would first have to testify to establish how she came to know of these incidents.

¶ 13 It is therefore evident that the trial court meant to indicate Wakeman had to testify to lay the foundation for McMorris evidence, not to warrant a self-defense jury instruction. Even if that were not the case, the record reveals that the court had already decided to instruct the jury on self-defense before Wakeman testified. Wakeman does not challenge the court's analysis of the admissibility of the McMorris evidence, and the court did not actually require Wakeman to testify to receive a self-defense instruction.

III. Erroneous Jury Instructions

¶ 14 The jury was given WIS JI—CRIMINAL 810 on a duty to retreat. Wakeman contends the instruction was erroneous because there is no such duty in Wisconsin and the instruction therefore confused the jury.

¶ 15 So long as a jury instruction fully and fairly informs the jury of the law applicable to the case, determining which instructions to give is a matter of discretion for the trial court. See State v. Mayhall, 195 Wis. 2d 53, 57, 535 N.W.2d 473 (Ct. App.1995).

¶ 16 WISCONSIN JI—CRIMINAL 810 states:

There is no duty to retreat. However, in determining whether the defendant reasonably believed the amount of force used was necessary to prevent or terminate the interference, you may consider whether the defendant had the opportunity to retreat with safety, whether such retreat was feasible, and whether the defendant knew of the opportunity to retreat.

This instruction is proper when there is evidence the defendant had an opportunity to retreat, because such a chance reflects on the reasonableness of the defendant's use of force. State v. Wenger, 225 Wis. 2d 495, 503-04, 593 N.W.2d 467 (Ct. App. 1999). Here, there was evidence Wakeman could and did retreat to the safety of her own home before choosing to return to the victim's house. The jury instruction was therefore proper. It is not confusing—it adequately and accurately states the law, specifically acknowledging there is no duty to retreat. Id. at 502.

¶ 17 Wakeman also asked the court to give WIS JI—CRIMINAL 1012 on adequate provocation, arguing she "was provoked to the point, considering her intoxication and her state of mind, that provocation was a legitimate defense... ." She claims she "is entitled to any instruction she requests, provided it is supported by some evidence at trial."

¶ 18 This jury instruction indentifies two elements of the adequate provocation defense: "that the defendant actually believed that there was provocation and that the defendant's belief was reasonable." WIS JI—CRIMINAL 1012. The first element is subjective; the second is objective. Assuming Wakeman fulfills the subjective test, there is no evidence to support the objective prong here. This is because the objective test "looks at a reasonable sober person under similar provocation." State v. Heisler, 116 Wis. 2d 657, 662, 344 N.W.2d 190 (Ct. App. 1983) (emphasis added). A reasonable sober person assaulted by drunken party revelers would not be provoked to flee the scene, go home, obtain a weapon and potential accomplice, return to the scene of the attack, and repeatedly and fatally stab one of her alleged assailants. The court therefore properly refused the adequate provocation instruction.

IV. Restrictions on Voir Dire

¶ 19 Wakeman contends the trial court impermissibly restricted voir dire. The court did, on more than one occasion, ask defense counsel to speed up or end the process. However, no contemporaneous objection was raised to the court's comments, and the matter is therefore not...

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