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  • WisBar News
    May 16, 2016

    No Marital Privilege: Appeals Court Upholds Double-Murder Conviction

    Joe Forward

    May 16, 2016 – Daniel Schmidt had an extramarital affair with Kimberly Rose. He was later convicted for killing Rose and Rose’s brother. Recently, a state appeals court upheld the convictions, despite Schmidt’s objection to testimony provided by his wife.

    In May 2009, police found the brother-sister victims, who lived together, with fatal gunshot wounds in the back and face. The investigation led to Schmidt’s arrest.

    At the trial, Schmidt’s wife recounted a conversation in which Schmidt suggested that he wanted to “shoot” Rose, then himself. Schmidt argued that a portion of the statement was not admissible under Wisconsin’s marital privilege, Wis. Stat. section 905.05, which allows spouses to prohibit testimony about “private communications” between spouses.

    The trial court ruled that Schmidt waived the marital privilege. In State v. Schmidt, 2015AP457-CR (May 10, 2016), a three-judge panel for the District III Court of Appeals affirmed, concluding that Schmidt waived the privilege when talking to police.

    The panel also rejected Schmidt’s claim that the evidence was insufficient to support count two for the murder of Rose’s brother, Leonard Marsh. And the panel rejected his claim that excluding his expert witness testimony violated his constitutional rights.

    Murders After Affair Revealed

    In April 2009, Schmidt admitted the affair with Rose to his wife Stephanie. Stephanie decided to continue the marriage but the affair was weighing heavily on her.

    Days before the murders, Stephanie had a conversation with Schmidt. She stated she was heartbroken and Schmidt seemed to be carrying on as usual. Stephanie later testified that Schmidt responded by saying, “I’d like to shoot her, then myself.”

    Stephanie also testified about interactions with Rose and other conversations with Schmidt. Rose had loaned Schmidt $1,000 to help him buy a motorcycle. The loan became a source of tension because it required Schmidt to remain in contact with Rose.

    Stephanie tried to cut this off by delivering marijuana to Rose, as a partial in-kind payment towards Schmidt’s debt. Ultimately, Rose told Stephanie that she had photos of Schmidt and Rose together and kept a journal with details of their affair. She also told Stephanie that Rose and Schmidt had sex in Stephanie’s car and in the Schmidt house.

    Stephanie confronted Schmidt at his workplace and threw her wedding ring at him. She later testified that she packed a bag then drove around all night before returning home. She was home the next morning when Schmidt departed for work at 4 a.m.

    He returned home about four hours later before leaving again in Stephanie’s car. He returned again an hour later. That was the day of the murders.

    Stephanie later testified about some of his unusual behaviors and comments. She also said that when she told Schmidt about the murders, he “had no major reaction” and did not seem upset. Stephanie also testified that Schmidt had different explanations for his whereabouts on the day of the murders, that Schmidt owned a 20-gauge shotgun, and they discussed destroying it. Schmidt later told Stephanie that he had a friend destroy it.

    Other witnesses bolstered the state’s case, including Rose’s 11-year old son, Schmidt’s uncle, and statements attributed to Schmidt’s mother.

    No Marital Privilege

    The defense stipulated that Schmidt waived his marital privilege with respect to many statements he made to Stephanie in private by confirming those statements to police. But Schmidt challenged specific testimony about wanting to shoot Rose.

    Schmidt had confirmed to police that he told Stephanie he wanted to kill himself. But he denied ever saying he wanted to shoot Rose, and raised the marital privilege.

    But the three-judge panel ruled that Schmidt waived the marital privilege with respect to the entire statement by disclosing a portion of it to police.

    The panel concluded that “Schmidt’s admission to police when confronted with his wife’s statement accomplished a waiver of the privilege as to the entire statement, not just the portion concerning Schmidt’s suicidal ideations.”

    Judge Thomas Hruz, examining prior cases, said “the controlling principle of waiver is the privilege holder’s voluntary disclosure of ‘any significant part’ of the matter or communication,’” not whether a small portion of a bigger statement was disclosed.

    “Schmidt’s admission to telling Stephanie he wanted to kill himself was a disclosure of a ‘significant part’ of the total statement” that involved a murder-suicide, Hruz noted.

    Appeals Court Rejects Other Arguments

    The panel also rejected Schmidt’s two other arguments. First, he claimed that there wasn’t enough evidence to support the conviction for murdering Marsh, Rose’s brother.

    Schmidt argued that the state could not establish, beyond a reasonable doubt, that Schmidt killed both victims. He said the evidence should have led the jury to conclude that two different individuals killed the victims separately with different weapons.

    “Schmidt is simply arguing the jury should have come to a different conclusion regarding his culpability for Marsh’s death based on the evidence,” Hruz wrote. “However, the evidence Schmidt cites is not even minimally exculpatory of him as to Marsh’s murder.”

    The panel explained that the evidence fit the state’s theory of the case, which was that Schmidt drove to the Rose-Marsh residence in Stephanie’s car to confront Rose about what she said to his wife. He shot Marsh in the back while he slept, reloaded and shot Rose in the face, then went back and shot Marsh two more times in the back.

    “The evidence adduced at trial, viewed in the light most favorable to the conviction, was sufficient for the jury to conclude beyond a reasonable doubt that Schmidt was guilty of both murders,” wrote Judge Hruz, noting that a reasonable jury could have concluded that Schmidt wanted to eliminate Marsh as a potential witness.

    Finally, the panel rejected Schmidt’s claim that the trial court violated his constitutional right to present a defense by excluding his expert witness, a psychiatrist who was going to testify about influences that can affect a child’s memory.

    Rose’s 11-year-old son testified that he saw Schmidt’s truck at the Rose residence the night before the murders, and he heard people arguing, among other things. The panel ruled that excluding the testimony was appropriate because it lacked relevance.

    Judge Hruz said the psychiatrist relied on scientific studies but could only testify based on generalities and “could not tie these concepts in any meaningful way to the particular circumstances surrounding [the child’s] statements to police.”

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