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Privilege re: desire to shoot victim waived by statement of desire to shoot self

State v. Daniel L. Schmidt, 2016 WI App 45; case activity (including briefs)

The court of appeals rejects three challenges to Schmidt’s jury-trial conviction of two homicides.

Schmidt first asserts that the evidence was insufficient to convict him as to one of the homicides, though not the other. After a lengthy recitation of the substantial evidence implicating Schmidt in both crimes (including, perhaps most notably, the fact that the two victims’ bodies were discovered together, both shot to death), the court finds “ample evidence from which a jury could reasonably infer that Schmidt committed both murders.” (¶¶18-34).

The next issue (presumably the one the panel believes merits publication) concerns the introduction of Schmidt’s wife’s testimony that he told her, four days before the homicides, that he wanted to “shoot [one victim], then myself.” (¶35). Schmidt moved to exclude the statement on the ground that it was subject to the marital privilege of Wis. Stat. § 905.05(1). The state responded that general privilege-waiver rule of Wis. Stat. § 905.11 permits the introduction of privileged statements where the privilege holder “voluntarily discloses or consents to disclosure of any significant part of the matter or communication.” Per the state, Schmidt had made such a disclosure during the following exchange with police:

when an officer asked Schmidt directly whether he had made a comment prior to the murders about shooting Rose and then himself, Schmidt stated: “Maybe myself I guess, possibly.” Schmidt continued: “If I may, if I, if I may have said it, it may be myself cuz I … think I told her something like ahh, well I if at least did myself you wouldn’t have to look at me see the thoughts, I guess.” The officer then attempted to clarify Schmidt’s statement and determine whether Schmidt was denying that he said anything about taking Rose’s life. Schmidt stated he could not recall saying anything about taking Rose’s life, but he thought if he killed himself Stephanie “wouldn’t have to look at [him] and see the pain and agony.”

(¶39 n.7).

Schmidt argues that the “only significant part of the statement was the part which was not disclosed, i.e., the incriminating part.” The court of appeals recites three state cases, but acknowledges that there is little law on what constitutes a “significant part” of a given conversation. (¶¶43-51). Nevertheless it concludes that the

significance of any portion of a communication is measured by the importance of its subject matter to the overall communication. This conclusion is clear not only as a matter of statutory interpretation, but also from Dalton, which teaches that any inferences drawn from a particular statement— which in the present case include the degree of incrimination to the privilege holder—are “irrelevant to the question of waiver.” Dalton, 98 Wis. 2d at 733. Here, there were only two “parts” to the communication at issue: Schmidt’s statement that he wanted to shoot Rose, and his immediately subsequent statement that he wanted to then shoot himself. The latter statement was of sufficient importance to the overall communication, such that Schmidt’s disclosure of it to police operated to waive the privilege as to the entire statement.


The court finally considers Schmidt’s claim that he was unconstitutionally prevented from putting on a defense by the circuit court’s exclusion of expert testimony regarding “suggestive interviewing techniques,” as they might relate to the testimony of a particular child witness. The court rejects this claim as well, noting that there was no evidence that the child had been subjected to any such techniques, rendering the expert’s testimony irrelevant. (¶86).

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