An appeals court on Wednesday determined a former Appleton firefighter convicted of his estranged wife’s murder can’t claim he acted in the heat of passion, because he initiated the fatal confrontation.
Wisconsin’s District 3 Court of Appeals based in Wausau upheld Scott E. Schmidt’s Outagamie County conviction on a count of first-degree intentional homicide in the 2009 death of Kelly Wing Schmidt.
Schmidt, 41, sought a new trial, arguing he was wrongly prohibited from presenting an adequate provocation, or “heat of passion,” defense at trial. He said he lost control after taunting and threats that day, which followed years of emotional abuse and recent financial troubles. Schmidt claimed he heard the shots, but had no memory of pulling the trigger.
“If Schmidt acted in the heat of passion, it was because he deliberately chose to ignite the fire,” the decision says.
Schmidt shot Wing Schmidt three times in the head with a handgun on April 17, 2009, outside the home they once shared on E. Edgewood Drive in Grand Chute. She died hours later.
The adequate provocation defense requires a showing that a victim acted so provocatively that an ordinary person would’ve completely lost self control. Outagamie Judge John Des Jardins took testimony in chambers from Schmidt at a pre-trial hearing before determining the defense wouldn’t be allowed.
Schmidt claimed Wing Schmidt was “emotionally and psychologically abusive” throughout their relationship. He said she threatened to his children from him in the time that led up to the shooting.
“I don’t know where she was or where I was,” he told Des Jardins. “I just heard the shot. I don’t remember seeing the gun or nothing.”
Schmidt claims he went to the home that day to gather some tools from the garage. He said he and Wing Schmidt had normal conversation for a time before the situation became heated.
The appeals court noted several flaws in Schmidt’s argument. Among them was Schmidt’s acknowledgment he confronted Wing Schmidt about her relationship with another man in the moments that led up to the shooting.
“Schmidt himself was the initial provocateur,” the decision said.
The court also questioned Schmidt’s explanation for having a loaded gun on his person during the confrontation.
Schmidt said he recalled having the pistol stored in a garage cabinet when he went into get some bicycles down for the children. He said he grabbed it and put it in his pants, because it wasn’t safe to keep there.
“No reasonable person would leave a loaded handgun stored in a garage where multiple children might access it,” the decision says. “Thus, the only reasonable inference is that he loaded the pistol that morning.”
The appeals court said Schmidt’s argument further failed because he had prior knowledge of Wing Schmidt’s relationship with another man and endured past threats regarding his children. Both provided “an adequate cooling off period.”
Had a judge allowed and a jury accepted Schmidt’s heat of passion defense, the charge would have been reduced from first- to second-degree intentional homicide. First-degree intentional homicide carries an automatic life sentence, while a second-degree conviction carries up to 40 years in prison and 20 years of extended supervision.
Schmidt also sought a new trial on the grounds he was denied assistance of counsel during the hearing in Des Jardins’ chambers. The appeals court also rejected that argument
Schmidt also was convicted of bail jumping and first-degree reckless endangerment. He didn’t address those convictions in his appeal.
Schmidt is serving a life prison sentence. He will be eligible to apply for release onto extended supervision on Jan. 1, 2050, when he will be 79 years old.
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