Sufficiency of Evidence

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WI Court of Appeals: District III

Case Name: State of Wisconsin v. Daniel L. Schmidt

Case No.: 2015AP457-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Sufficiency of Evidence

Daniel Schmidt appeals a judgment of conviction for two counts of intentional homicide and an order denying his postconviction motion. A jury determined that Schmidt killed Kimberly Rose, with whom he had an affair, and her brother, Leonard Marsh. Schmidt challenges the sufficiency of the evidence supporting only his conviction for killing Marsh. He also argues he is entitled to a new trial because the circuit court erroneously concluded he had waived the marital privilege with respect to his statement to his wife that he would like to “shoot [Rose], then myself.” Finally, Schmidt asserts the court erroneously, and unconstitutionally, excluded expert witness testimony from a child psychologist whom Schmidt retained to testify regarding potential suggestive interview techniques used during police interviews with Rose’s son, D. R. We reject Schmidt’s arguments and affirm the judgment and order. The evidence was plainly sufficient to support the homicide conviction for killing Marsh. The circuit court also correctly concluded Schmidt waived the marital privilege pursuant to WIS. STAT. § 905.11 by disclosing a “significant part” of the communication at issue to a third party when he confirmed to authorities that he told his wife he wanted to kill himself but denied saying he wanted to shoot Rose. 1 Finally, we conclude Schmidt was not constitutionally entitled to present his desired expert testimony regarding suggestive interview techniques, and the circuit court did not otherwise err in excluding it. There was no evidence such techniques were used with D. R., and Schmidt’s expert offered no opinion in that regard. Accordingly, Schmidt failed to establish his expert’s testimony constituted relevant evidence with probative value that was not substantially outweighed by the risk of unfair prejudice to the State.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.