Bernard Flattum appeals a judgment convicting him of first-degree murder in the strangulation and knifing death of Margaret Wink. The sole issue on appeal is whether the trial court erred in excluding psychiatric opinion testimony that a person with Flat-turn’s psychiatric and alcohol abuse profile would not be able to form the specific intent to commit first-degree murder.
Flattum contends that the testimony was necessary to show his state of mind at the time of the murder and that its exclusion was a violation of his constitutional due process right to present a defense. Because psychiatric opinion testimony is not competent to prove or disprove a defendant’s capacity to form the specific intent to commit first-degree murder, we affirm.
Flattum does not dispute the sufficiency of the evidence to support the jury’s conclusion that he caused Wink’s death. The primary factual issue at trial was whether Flattum was so intoxicated he could not have formed the specific intent to commit the crime.
Flattum testified that after drinking about twenty-two twelve-ounce cans of beer, he stopped at Wink’s home. Wink was an elderly woman, and Flattum knew her from having previously worked with her and from saying hello to her on occasions when he passed her home. He testified that he was drunk at the time and his memories of the day’s events were vague. He does recall drinking two or three more beers at her home and having a discussion about his young son. Flattum recalls that after using the bathroom, he found Wink lying on the floor with *110 blood on her. Other witnesses testified about Flattum’s alcoholism and their observations of him that day.
The defense expert witness, Dr. Carl Schwartz, testified about the effects of alcohol consumption on the brain and on the thinking and motor response of an individual. He also stated that, in his opinion, if a man five feet eleven inches tall, weighing 160 pounds, consumed twenty-two twelve-ounce cans of beer over a six and one-half hour period, he would be intoxicated. He further testified that, in his opinion, if the same man in the next five hours consumed another eight cans of beer, his intoxication level would be at least the same as after consuming twenty-two cans of beer in six and' one-half hours.
The trial court permitted Dr. Schwartz to describe the effects of alcohol and intoxication, but excluded his testimony when asked the following hypothetical question:
Doctor, Wisconsin law defines first degree murder as being committed by one who causes the death of another human being with the intent to kill that person. The intent to kill is defined by Wisconsin law as the mental purpose to take the life of another human being. Relying on the definitions, Doctor, I ask you to assume the following facts for purposes of this hypothetical question: assume that a man has a longstanding history of alcoholism which is currently diagnosed as being in a chronic phase. Assume further that this man has a chronological history identical to that of Bernard Flattum’s. Assume further that this man has a psychiatric history. Identical to that of Bernard Flattum’s. Assume further that this man is five feet, eleven inches tall and weighs a hundred sixty pounds. Assume further that on a particular day, he consumes no food, but does consume twenty-two cans of beer from eight a.m. until two thirty p.m. Assuming all- of those facts to be true, do you have an opinion to a degree of medical certainty as to whether this man would be able to form the specific intent to commit murder as it has been defined for you ?
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Flattum contends that the trial court erred by excluding the psychiatric opinion evidence offered to show that he lacked the state of mind necessary to commit first-degree murder. He cites
Loveday v. State,
To establish a voluntary intoxication defense, there must be some evidence to show that the defendant’s mental faculties were so overcome by intoxicants that he was incapable of forming the specific intent to kill.
State v. Strege,
No. 82-1710, slip op. at 10-11 (Wis. Jan. 31, 1984). When Flattum claims the psychiatric opinion testimony was necessary to show his state of mind at the time of the offense, he is essentially saying that the testimony would have somehow affected the “intent” element of the first-degree murder charge.
See State v. Repp,
No. 83-531-CR, slip op. at 4-5 (Wis. Ct. App. Dec. 27, 1983). When
Steele
prohibited expert opinion evidence on the capacity to form intent, it excluded the admission of all expert psychiatric opinion evidence on whether the de
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fendant did in fact form the intent to kill.
Steele,
Although Wisconsin has accepted scientific opinion testimony on many subjects, it has also rejected the competency of expert opinion testimony in such areas as the polygraph and now psychiatric opinion testimony dealing with the probabilities of whether a defendant in fact intended to commit the alleged act. Wisconsin may exclude such evidence without infringing on a defendant’s constitutional right to present reliable evidence in his own defense.
Muench v. Israel,
The trial court correctly admitted some of the psychiatric opinion testimony during the trial. As recognized in
Repp
and
Strege,
expert opinion testimony is admissible on areas such as a defendant’s alcoholic condition and history, the effects of alcohol use and abuse, and the likely effect of alcohol on a person of the defendant’s size or with the defendant’s alcohol use history. What a psychiatrist may not do, however, is to offer his opinion as to whether the defendant intended to do what he in fact did.
Steele,
By the Court. — Judgment affirmed.