Schmidt v. Foster, Case No. 18-CV-29

DANIEL SCHMIDT, Petitioner, v. BRIAN FOSTER, Respondent.

Case No. 18-CV-29

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

August 26, 2019

REPORT AND RECOMMENDATION

1. Facts and Procedural History

On the morning of May 19, 2009, Holly Kleczka arrived at the home of her friend, Kimberly Rose, in the rural town of Gillette, Wisconsin. She knocked but received no answer. The friends had spoken within the hour and Rose had told Kleczka she would leave the door unlocked; if she did not answer, Kleczka should just come in. Kleczka entered through the unlocked door, sat her two children on the couch, and turned the television on for them before continuing through the home, calling for her friend. Kleczka pushed open the partially closed door to Rose's bedroom and there found Rose, sitting on the floor against the wall, covered in blood, dead.

Kleczka ran from the home, locked her children in her car, and called 911. Paramedics arrived, followed shortly thereafter by a police officer. After seeing Rose, the police officer told the paramedics to leave the home with him. It was only when other law enforcement officers arrived that they checked to see if anyone else was in the home. In doing so, they entered another bedroom and found a man lying on a mattress and covered with a blanket, seemingly asleep. The man did not respond to the officers' commands, and only after an officer removed the blanket did the officers recognize a hole in his back. Leonard Marsh, Rose's brother, was also dead. Rose had been shot once and Marsh three times, all with a 20-gauge shotgun.

Investigators learned that Rose had talked to her mother from 10:12 to 10:19 AM that morning. When Rose's mom called back at 10:47 AM, there was no answer. Kleczka found Rose shortly thereafter. Because there were no signs of forced entry and it did not appear anything was missing from the home, investigators suspected that they were murdered by someone who knew at least one of them.

Investigation into Rose's ex-boyfriend revealed he was over two hours away at the time of the murders. And Marsh's boyfriend, with whom Marsh had recently gotten into a fight, was also over two hours away. The investigation then turned to Daniel Schmidt, with whom Rose had been having an affair.

Schmidt's wife, Stephanie, had recently found out about the affair. In an argument about the affair on May 15, four days before the murders, Schmidt told his wife, "I'd liketo shoot her, then myself." (ECF No. 10-13 at 199.) Although Schmidt and Stephanie agreed to continue with their marriage despite the affair, Stephanie felt Rose was making it difficult. For example, Rose told Stephanie upsetting details of the affair, including that she and Schmidt had had sex in the Schmidts' home and in Stephanie's car. On hearing that they had had sex in her car, on May 17, 2009, Stephanie drove to the farm where Schmidt worked and angrily confronted him, taking off her wedding ring and throwing it at him.

Also on May 17, 2009, Rose sent Stephanie a text message with words to the effect of "pay back is a bitch," attached to which was a photograph. Stephanie was unable to view the photograph on her phone but understood it was an image of Schmidt and Rose. Upon learning that Rose kept a journal that included details of her affair with Schmidt, Stephanie demanded to see it. Stephanie arranged to get the journal from Rose on May 21. No such journal was found in Rose's home after her death.

Rose had also loaned Schmidt $1,000 for a motorcycle. The loan created tension between Schmidt and Stephanie because it required Schmidt to continue to have contact with Rose. Moreover, Stephanie had just lost her job, straining the Schmidts' ability to repay the loan. In light of the Schmidts' financial circumstances, Rose had agreed to accept an installment payment in the form of marijuana, which Schmidt grew in his garage. But Rose was dissatisfied with the quality and quantity of the marijuana and was demanding to be fully compensated.

The night before the murders, on May 18, 2009, Rose's 11-year-old son awoke at about 11:00 PM. He saw a man and a woman sitting on the couch in his home, arguing with his mother about money and marijuana. Although he was familiar with Schmidt and Stephanie, he could not see the faces of these visitors. Rose's son went back to his room and looked outside. He saw a green and silver pickup truck in the driveway, which is consistent with the truck that Schmidt drove. However, Rose's son's recollection of this night varied over time. For example, at a preliminary hearing he testified that he could not see the color of the truck. Stephanie denied that she went to Rose's home that night.

Around this same time—roughly 11:00 PM on May 18, 2009—Marsh called a friend, asking her to pick him up from Rose's house. Marsh was very upset and crying. Marsh told his friend that a man and woman whom he did not like were at his house, and he wanted to leave. His friend could hear a woman telling Rose to "shut up" and heard some discussion about money. Marsh told his friend their names, but she could not recall them other than that the man's name was short and the woman's name was long. A few hours later, around 1:00 AM on the morning of May 19, Rose called Marsh's twin brother, asking him to pick up Marsh because she and Marsh were fighting. He refused, saying it was too late and too far of a drive.

On May 19, Schmidt got home from work as he usually did between 9:15 and 9:30 AM, and soon told Stephanie he was going to pick up their daughter from preschool. This struck Stephanie as odd because it was only 9:30 and their daughter did not need to bepicked up until 11:00 AM. Nonetheless, Schmidt left, alone, and returned home at about 10:30 or 10:35, telling his wife he went for a drive to clear his mind. Uncharacteristically, when he returned he parked the car in the garage. A neighbor of the Schmidts testified he saw Schmidt arrive home at 10:37 and park in the garage. Schmidt then left again at about 10:40 or 10:45, this time taking his pickup truck and the couple's young son to get their daughter from preschool. The drive from Schmidt's home to Rose's home would be about 21 minutes each way if the driver drove the speed limit and came to a complete stop at all stop signs.

Later, Schmidt told Stephanie that on his drive he went to a friend in a nearby town. He told her the route he took, and Stephanie went to businesses along the route to see if any surveillance camera might have captured images of his car. After a business reported to her that it reviewed its security footage but did not see the car, Schmidt told Stephanie that maybe he took a different route to his friend's house. He told investigators that he started to drive to a friend's house but realized he did not have enough time to make it back in time to get his daughter from preschool, and so turned around and went home.

Schmidt had owned a 20-gauge shotgun. When questioned by law enforcement, he lied and said he had sold the gun years ago. Schmidt actually gave his 20-gauge shotgun to a friend the day after the murders, and the friend destroyed it.

Schmidt was not charged until September of 2012, over three years later. Beginning on October 11, 2013, the state presented its circumstantial case against Schmidt to a jury. On October 17, 2013, the jury found Schmidt guilty of two counts of first-degree intentional homicide. The court sentenced Schmidt to two consecutive terms of life in prison without the possibility of extended supervision. (ECF No. 10-1.)

Schmidt appealed, and the Wisconsin Court of Appeals affirmed his conviction. State v. Schmidt, 2016 WI App 45, 370 Wis. 2d 139, 884 N.W.2d 510. The Wisconsin Supreme Court denied Schmidt's petition for review.

Proceeding pro se, Schmidt filed a petition for a writ of habeas corpus. He presents three grounds for relief. First, he argues he was denied his right to present a defense when the trial court refused to let him present testimony from a child psychologist regarding child memory. Second, the trial court erred in finding that he waived spousal privilege. Third, there was insufficient evidence to sustain his conviction for the murder of Marsh.

The court reviewed Schmidt's petition in accordance with Rule 4 of the Rules Governing Section 2254 cases and ordered the respondent to answer the petition. (ECF No. 5.) The court also ordered Schmidt to submit a brief. (ECF No. 5.) The respondent answered the petition (ECF No. 10), but Schmidt did not submit a brief. Therefore, the briefing on Schmidt's petition is closed and the matter is ready for resolution.

2. Standard of Review

A federal court may consider habeas relief for a petitioner in state custody "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Following the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court generally may grant habeas relief only if the state court decision was "either (1) 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) 'based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Miller v. Smith, 765 F.3d 754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(1), (2)).

3. Analysis

a. Right to Present a Defense

"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Holmes v. South Carolina, 547 U.S. 319, 324, (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). The right, however, is not absolute. For example, a defendant does not have a constitutional right to present irrelevant...