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Sentencing judge could conclude defendant made choice to kill despite stipulation to adequate provocation

State v. Ashlee A. Martinson, 2017AP1889-CR, District 3, 2/20/19 (not recommended for publication); case activity (including briefs)

Martinson was charged with two counts of first-degree intentional homicide for killing her mother and stepfather. She pled to second-degree intentional homicide based on her claim of adequate provocation, which is premised on a complete lack of self-control, § 939.44(1)(a). That mitigating defense didn’t preclude the sentencing court from basing its sentence on the conclusion the defendant “had a choice” whether to kill the victims.

¶25     Martinson’s only argument is one of law, and it is a narrow claim at that. Namely, she contends the statutes governing adequate provocation (which are Wis. Stat. §§ 940.01, 940.05, and 939.44) prohibit a circuit court, in cases such as this one, from basing the defendant’s sentence in part upon a consideration that the defendant had a choice in his or her actions…. Although Martinson concedes that she could be convicted of intentional homicide in that she “had the choice not to pull the trigger,” she argues that by operation of the statutorily based adequate provocation defense, she was, “as a matter of law, unable to exercise that choice, even if she had perceived it.” Thus, Martinson reasons, the circuit court’s consideration at sentencing of any “choices” she made regarding her offenses is necessarily an improper exercise of discretion.


¶31    While Martinson focuses on the definitional aspects of adequate provocation [in § 939.44(1)(a) and (b)], the key to this case lies in the statutory directives regarding the burden of proof. The defendant initially bears the burden of producing some evidence to support an adequate provocation defense…. [State v. Schmidt, 2012 WI App 113], ¶8[, 344 Wis. 2d 336, 824 N.W.2d 839]; Wis. Stat. § 940.01(3). “Once a defendant successfully places an affirmative defense in issue, the State is required to disprove the defense beyond a reasonable doubt.” Schmidt, 344 Wis. 2d 336, ¶8. Within this burden-shifting framework, it is important to note that this scheme represents only the mitigation of the crime’s severity based upon the “complete lack of self-control,” § 939.44(1)(a), that derives from a person being under the “highest degree of anger, rage, or exasperation,” Schmidt, 344 Wis. 2d 336, ¶35. It is not a complete defense that absolves the defendant of criminal liability. Id.


¶33     Reading Wis. Stat. §§ 940.01 and 940.05 together, it is apparent the effect of the State’s stipulation and amendment to the charges in this case was to agree that it could not meet its burden of showing beyond a reasonable doubt that Martinson was not acting under the influence of adequate provocation when she committed the murders. There is a critical distinction between a concession that the State could not meet its burden of disproving adequate provocation and a concession that adequate provocation existed. Although Martinson argues that the State’s stipulation has the latter effect, the statutes unambiguously provide that the stipulation had only the former effect. Accordingly, nothing in the text of Wis. Stat. §§ 940.01, 940.05, and 939.44 precludes a circuit court from remarking upon and independently evaluating the defendant’s volitional capacity at sentencing in cases of stipulated second-degree intentional homicide based on adequate provocation.

¶34     Having concluded that the circuit court’s comments regarding Martinson’s volitional capacity were not incompatible with the statutes governing the adequate provocation defense, we next observe that existing sentencing law generally permits the consideration of such matters. Martinson’s argument blurs the well-recognized distinction between the fact finder’s function at the guilt stage of criminal proceedings—where the fact finder must determine whether the government has proven a defendant’s guilt beyond a reasonable doubt—and the sentencing judge’s role—which is to “assess the defendant’s character using all available information,” unconstrained by the rules of evidence that govern in the guilt phase. State v. Arredondo, 2004 WI App 7, ¶53, 269 Wis. 2d 369, 674 N.W.2d 647 (2003).

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