1st-degree intentional homicide — adequate provocation defense

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Wisconsin Court of Appeals

Criminal

1st-degree intentional homicide — adequate provocation defense

Where the defendant knew of his wife’s infidelity and her desire to prevent him from ever seeing their children for months, he was not entitled to present an adequate provocation defense to her homicide.

“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).”

“The same reasoning applies equally to Wing-Schmidt’s stated intent to prevent Schmidt from seeing his children. Schmidt’s offer of proof indicates that, beginning four months before the shooting, Wing-Schmidt repeatedly threatened that she would take Schmidt’s children from him and that he would not see them. Schmidt’s similar threats on the morning of her murder were merely more of the same. Likewise, Schmidt acknowledged that Wing-Schmidt had accepted him back only to reject him again some twenty times in the past. Thus, this too was nothing new to Schmidt.”

Affirmed.

Recommended for publication in the official reports.

2011AP1903-CR State v. Schmidt

Dist. III, Outagamie County, Des Jardins, J., Hoover, J.

Attorneys: For Appellant: Hintze, Donna L., Madison; For Respondent: Moeller, Marguerite M., Madison; Schneider, Carrie A., Appleton