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Adequate Provocation Defense, §§ 939.44(1), 940.01(2)(a): Test for Admissibility; Counsel: No Right to Participate, in camera Hearing

State v. Scott E. Schmidt, 2012 WI App 113 (recommended for publication); case activity

Adequate Provocation Defense, §§ 939.44(1),  940.01(2)(a) – Test for Admissibility

The “some evidence,” rather than Schmidt’s proposed less stringent “mere relevance,” standard controls admissibility of evidence of adequate provocation that would reduce first- to second-degree intentional homicide:

¶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.”  [State v. Head, 2002 WI 9], ¶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).

¶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. …  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.

The court also rejects the State’s attempt to limit provocation evidence to “conduct which occurs just prior to the crime,” ¶¶13-18.

¶18      We further observe that the State has not argued that Wis. Stat. § 939.44(1)(b), which defines “provocation,” itself imposes any temporal restrictions upon the evidence that may be considered.  Rather, the statute requires only that the proffered acts had a causal effect upon the defendant’s loss of self-control at the time of the crime.  See id.  Thus, if the victim’s prior acts could contribute to a reasonable person’s loss of self-control at the time of the crime, the acts are relevant to the objective component of the defense.[6]

On the merits: Schmidt argues that he shot his estranged wife after finally snapping in response to her emotional, psychological, and physical abuse. After reciting the proffer at some length, the court holds that while “it is a close question,” Schmidt nonetheless failed to satisfy his “some evidence” burden of production that a reasonable person would have completely lost self-control, ¶¶34-35.

¶41      As in Muller, here Schmidt was not suddenly surprised by his wife’s infidelity, much less did he come upon Wing-Schmidt’s paramour in her bedroom in the middle of the night.  Schmidt had already called Lindsley eight days before the shooting and told him, “Stay away from my fucking wife or I’ll kill you.” Thus, Schmidt’s prior knowledge of Wing-Schmidt’s affair negated the objective component of that provocation because there was an adequate cooling off period.  See also Williford, 103 Wis. 2d at 116-17 (“even the most unreasonable of human beings would have cooled off and had time to reflect or deliberate” about events occurring two weeks or more prior).

¶42      The same reasoning applies equally to Wing-Schmidt’s stated intent to prevent Schmidt from seeing his children. … Thus, this too was nothing new to Schmidt.[9]

¶44      Thus, the immediate provocation—Wing-Schmidt’s arguing with or taunting Schmidt prior to the shooting—cannot constitute objective adequate provocation.  Schmidt himself was the initial provocateur.  A reasonable person in Schmidt’s situation would have expected that confronting Wing-Schmidt about her paramour would result in the very conduct which she undertook.  If Schmidt acted in the heat of passion, it was because he deliberately chose to ignite the fire.  Schmidt cannot incite a contentious argument and then legitimately argue that Wing-Schmidt’s reciprocal provocation should mitigate his culpability.  Cf. Root v. Saul, 2006 WI App 106, ¶26, 293 Wis. 2d 364, 718 N.W.2d 197 (“[A] defendant who is the initial aggressor can lose the right to claim self-defense, unless the defendant abandons the fight and gives notice to his adversary that he has done so.”); Wis. Stat. § 939.48(2)(c) (“A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.”).

Counsel – Right to Participate at in camera Hearing 

At the in camera hearing to assess admissibility of the provocation evidence, the trial court excluded the prosecutor altogether while permitting defense counsel to be present, but not to participate. The hearing thus was comprised of Schmidt’s testimony without questioning from counsel. Schmidt argues that this procedure worked a denial of the right to counsel at a “critical stage” of the trial. The court rejects the argument:

¶46      The problem with Schmidt’s argument is that the in camera hearing was merely a supplementary proceeding conducted for his benefit.  The intent of the closed hearing was to prevent prejudice to him by minimizing disclosure of his defense to the State.  Our supreme court  suggested this very procedure recently in a self-defense affirmative defense case, State v. McClaren, 2009 WI 69, ¶34 n.12, 318 Wis. 2d 739, 767 N.W.2d 550.  There the court explained:

Any concerns that a defendant has concerning the disclosure potentially being used by the prosecutor in the case-in-chief could be addressed by an in camera review by the circuit court.  Such a mechanism has been endorsed by the United States Supreme Court as a fair way of resolving disclosure disputes.

Id. (citing Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987)).  While, in retrospect, it may have been more efficient to have counsel guide Schmidt’s testimony rather than having the court elicit an unguided narrative, a court has broad discretion in the conduct of its proceedings. See Wis. Stat. § 906.11(1); State v. Payette, 2008 WI App 106, ¶59, 313 Wis. 2d 39, 756 N.W.2d 423.  We agree with the State that, since the prosecutor was barred from the hearing, preventing defense counsel from questioning Schmidt in a nonadversarial atmosphere was a reasonable accommodation and not a violation of Schmidt’s right to counsel.

¶47      Schmidt contends, however, that the in camera hearing was a “critical stage” of the trial at which he was entitled to the assistance of counsel.  See Bell v. Cone, 535 U.S. 685, 695-96 (2002).  Fatal to Schmidt’s argument, the supplemental hearing was not the only opportunity for Schmidt to present his provocation evidence to the court.  Indeed, Schmidt had already presented written offers of proof, and had the option to present whatever additional oral testimony he desired in open court.  Schmidt merely chose not to present additional affidavits or testimony, of his own or from others, despite the court’s explicit prior pronouncement that additional evidence would be permitted.  Because the in camera hearing did not supplant Schmidt’s opportunity to present evidence in support of his affirmative defense, we hold that it was not a critical stage.

¶48      In any event, we observe that, in the middle of the hearing, the court recessed to allow Schmidt to review his attorney’s written offer of proof and speak with his attorney.  Counsel was present for the entire in camera hearing.  Thus, if counsel felt Schmidt or the court was overlooking something, or had any other concerns, there was an opportunity to so advise Schmidt.  Likewise, Schmidt had the opportunity to present any concerns or questions he had to his attorney.

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