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11/08/83 STATE WISCONSIN v. BERNARD A. HEISLER

November 8, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
BERNARD A. HEISLER, DEFENDANT-APPELLANT



Appeal from a judgment and an order of the circuit court for Shawano county: Ronald D. Keberle, Judge.

Foley, P.j., Dean and Cane, JJ.

The opinion of the court was delivered by: Dean

Bernard Heisler appeals from a judgment of conviction for second-degree murder, sec. 940.02(1), Stats., and an order denying his motion for post-conviction relief. He argues that the trial court's jury instructions impermissibly relieved the state of its burden of disproving beyond a reasonable doubt the existence of heat of passion upon adequate provocation, and that the trial court improperly excluded expert testimony that would have supported his manslaughter/heat-of-passion defense. *fn1 Because we conclude that Heisler could not have introduced sufficient evidence to raise a reasonable doubt as to the existence of heat of passion upon adequate provocation, we affirm the judgment and order.

On September 25, 1981, Heisler and his girlfriend, Doreen Jacquist, left Chicago and drove to a trailer in Shawano County. They drank, smoked marijuana, and consumed a large quantity of amphetamines throughout their trip. They continued to take amphetamines after they arrived at the trailer. At some point after arriving, they argued and Heisler hit Jacquist, blackening her eye. They eventually reconciled and went to bed together. Sometime later, Jacquist got up, took a wooden dowel and hit Heisler in the head while he lay in bed. The blow loosened his teeth and split his lip. Heisler took the dowel and "went berserk," beating Jacquist with it. She eventually died from the blows.

Heisler was charged with second-degree murder. He attempted to present a defense of heat of passion upon adequate provocation to reduce the offense to manslaughter. He offered the testimony of Dr. Leigh Roberts, a psychiatrist, as an expert witness. In an offer of proof, Heisler showed that Dr. Roberts would have testified that (1) to a reasonable degree of medical certainty, Heisler's drug consumption resulted in his heightened stimulation and impaired judgment; (2) as a result of the drug consumption, Heisler did not demonstrate utter lack of concern for Jacquist's life and safety; and (3) to a reasonable degree of medical certainty, the circumstances faced by Heisler, considering his state of intoxication, would have been sufficient provocation to overcome the judgment of a reasonable, ordinary person. The trial court excluded Dr. Roberts' testimony.

The trial court submitted jury instructions on second-degree murder and manslaughter/heat of passion. The instructions did not specifically tell the jury that the prosecution had to disprove beyond a reasonable doubt the existence of heat of passion before the jury could find Heisler guilty of second-degree murder. The jury returned a verdict of guilty of second-degree murder.

The issues Heisler presents on appeal are questions of law. This court will decide these questions independently. See Nelson v. Union National Bank, 111 Wis. 2d 313, 315, 330 N.W.2d 225, 226-27 (Ct. App. 1983).

Before addressing the specific issues Heisler raises, we must decide whether Heisler presented sufficient evidence to raise a heat-of-passion defense and warrant a jury instruction on manslaughter/heat of passion. If he introduced or, with Dr. Roberts' testimony, would have introduced sufficient evidence to raise the issue of manslaughter/heat of passion (a burden of production), he was entitled to the jury instruction and the state then had to disprove, beyond a reasonable doubt, the existence of heat of passion. See State v. Poth, 108 Wis. 2d 17, 21, 321 N.W.2d 115, 118 (1982). If he did not present sufficient evidence, he was entitled to neither a manslaughter instruction nor an instruction that the state had to disprove the existence of heat of passion before he could be found guilty of second-degree murder.

The heat-of-passion defense consists of both objective and subjective facets, and Heisler had to meet the burden of production on both facets. See State v. Lee, 108 Wis. 2d 1, 12, 321 N.W.2d 108, 113 (1982). The objective test required a showing that sufficient provocation existed to cause an ordinary, reasonable person to be overcome by the highest degree of exasperation, rage, anger, sudden resentment, or terror. See Johnson v. State, 129 Wis. 146, 159, 108 N.W. 55, 69 (1906); State v. Lee, 108 Wis. 2d at 12, 321 N.W.2d at 113. The subjective test required a showing that the provocation actually caused this reaction in Heisler. See id.

Heisler presented sufficient evidence to meet the production burden on the subjective test. On the objective test, he offered Dr. Roberts' testimony as his sole evidence. Dr. Roberts offered to testify that an ordinary, reasonable person, in circumstances similar to those faced by Heisler and under the influence of the intoxicants Heisler had taken, would have been provoked into a heat of passion and attacked Jacquist. We must decide, however, whether the objective test looks at a reasonable person under the influence of intoxicants or looks at a reasonable, sober person. *fn2

Voluntary intoxication as a defense is nearly universally rejected. See Annot. 8 A.L.R.3d 1236 (1966). While Wisconsin generally rejects voluntary intoxication as a defense, *fn3 see sec. 939.42(1), Stats., our supreme court has recognized the existence of a heat-of-passion, stimulated by intoxication, defense to a first-degree murder charge. See Hempton v. State, 111 Wis. 127, 142, 86 N.W. 596, 601 (1901); Lee v. State, 65 Wis. 2d 648 n. 6, 223 N.W.2d 455, 458 n. 6 (1974). *fn4 Since a heat-of-passion defense can be used to reduce second-degree murder to manslaughter, see Poth, 108 Wis. 2d at 19-20, 321 N.W.2d at 117, we conclude that a heat-of-passion, stimulated by intoxication, defense can also be used to reduce second-degree murder to manslaughter. *fn5

The supreme court, however, has never made it clear whether the circumstances of voluntary intoxication are applied to both the objective and subjective tests, or to only the subjective test, when the heat-of-passion, stimulated by intoxication, defense is raised. Other jurisdictions that apply an objective test similar to Wisconsin's hold that the circumstances that provoked the defendant must be sufficient to provoke a reasonable, sober person to act in the heat of passion. See Bishop v. United States, 107 F.2d 297, 303 (D.C. Cir. 1939); Commonwealth v. Williams, 416 A.2d 1131, 1132 (Pa. 1979); Brine v. State, 264 A.2d 530, 534 (Me. 1970). These jurisdictions, however, do not consider voluntary intoxication as a defense unless it negates an element of intent. Iowa, which allows juries to consider voluntary intoxication when deciding whether a defendant killed in the heat of passion brought on by provocation, permits intoxication to be viewed only for its subjective effect on the defendant. State v. Hall, 214 N.W.2d 205, 210 (Iowa 1974). Iowa's objective test looks at a sober person under similar provocation. Id.

We agree with Iowa's approach and conclude that when a heat-of-passion, stimulated by intoxication, defense is raised, voluntary intoxication is considered only for its subjective effect on the defendant. The objective test looks at the reasonable, sober person under similar provocation. This interpretation limits the degree to which a voluntarily intoxicated defendant can exempt himself from the legal responsibilities he would face if he were sober and is consistent with the general refusal to recognize voluntary intoxication as a defense to homicide. *fn6

We therefore hold that Heisler could not have introduced sufficient evidence on the objective facet to raise the heat-of-passion issue. A reasonable, sober person facing similar provocation would not have been sufficiently provoked to kill Jacquist. Being struck in the face with a dowel, as Heisler was, is not adequate provocation to suspend the exercise of judgment of an ordinary, sober person, notwithstanding the other events that occurred the day of Jacquist's death. Since Heisler did not meet the production burden on the heat-of-passion issue, any error the trial court made in instructing the jury on heat of passion as a defense to the ...


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