State v. Schmidt, 884 N.W.2d 510

Background

In May 2009 Kimberly Rose and her brother Leonard Marsh were shot dead; Schmidt was charged with first‑degree intentional homicide for both killings and convicted by a jury.
Key circumstantial evidence: Schmidt had an affair with Rose, motive arising from conflict over a loan and Rose’s purported journal; witnesses placed Schmidt at or near the victims’ residence in the relevant time window; Schmidt owned a 20‑gauge shotgun he later said was destroyed or disposed of.
Stephanie (Schmidt’s wife) testified Schmidt told her on May 15, 2009: “I’d like to shoot her, then myself.” Schmidt later told police he had said he wanted to kill himself but denied saying he wanted to shoot Rose.
The defense retained Dr. David Thompson, a child‑psychology expert, to testify about how suggestive interview techniques can affect child witnesses; Thompson could not say suggestive techniques were in fact used with the victim’s son, D.R., and had not reviewed recordings or transcripts of the interviews (none existed).
The circuit court admitted Stephanie’s testimony about Schmidt’s statement, finding waiver of the marital privilege, and excluded Thompson’s proffered expert testimony as not sufficiently tied to the facts (and therefore not relevant); Schmidt’s postconviction motion was denied and he appealed.

Issues

Issue	Schmidt's Argument	State's Argument	Held
Sufficiency of evidence for Marsh’s murder	Evidence did not support that Schmidt killed Marsh; differences in wound patterns and ballistic ambiguity meant two killers were possible	Circumstantial evidence (motive, means, opportunity, timing, shotgun possession/disposal) supported a single perpetrator — Schmidt	Conviction affirmed: evidence sufficient when viewed favorably to the State; jury could reasonably infer Schmidt killed both victims
Admissibility of spouse’s statement (marital privilege)	The portion about wanting to shoot Rose was a privileged private communication; waiver did not occur because Schmidt only admitted the suicidal portion to police	Waiver under Wis. Stat. §905.11 occurred when Schmidt voluntarily disclosed a significant part (he admitted telling his wife he wanted to kill himself), which destroys the privilege as to the entire communication	Admissible: waiver found; disclosing the suicidal portion was a voluntary disclosure of a "significant part" and waived the marital privilege as to the whole statement
Exclusion of child‑psychology expert re: suggestive interviewing	Dr. Thompson’s general research testimony was necessary to evaluate D.R.’s changing statements and to challenge their reliability; exclusion violated right to present a defense	Thompson could not tie general research to the facts: no recordings/transcripts, he did not interview D.R., and he could not opine that suggestive techniques were used — thus his testimony lacked relevance and probative value	Exclusion affirmed: expert testimony lacked a factual nexus to D.R.’s interviews and therefore was not relevant; any minimal probative value was substantially outweighed by risk of confusion/prejudice
Constitutional right to present a defense (in context of excluded testimony)	Excluding Thompson deprived Schmidt of a necessary defense tool and violated confrontation/compulsory process guarantees	The right is not absolute; evidence that is not relevant or is unduly prejudicial may be excluded; Thompson’s testimony failed relevancy and necessity prongs	No constitutional violation: the St. George factors not satisfied; exclusion was not arbitrary or disproportionate

Key Cases Cited

State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990) (standard for reviewing sufficiency of the evidence)
State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986) (waiver by voluntary disclosure of significant part of privileged communications)
State v. Denis L.R., 270 Wis. 2d 663, 678 N.W.2d 326 (Ct. App. 2004) (waiver need not be intentional; significance measured by subject matter importance)
State v. Dalton, 98 Wis. 2d 725, 298 N.W.2d 398 (Ct. App. 1980) (partial disclosure to third parties waived marital privilege as to whole statement)
State v. St. George, 252 Wis. 2d 499, 643 N.W.2d 777 (2002) (two‑part test for admissibility and constitutional right to present expert testimony)
Hampton v. State, 92 Wis. 2d 450, 285 N.W.2d 868 (1979) (limits on expert testimony about witness perception and credibility)