Muench v. Israel

• Decision Date: 05 May 1982
• Docket Number: Nos. 81-2094,81-2789,s. 81-2094
• Citation: 715 F.2d 1124
• Parties: Robert MUENCH, Petitioner-Appellant, v. Thomas ISRAEL and Attorney General of Wisconsin, Respondents-Appellees. Richard WORTHING, Petitioner-Appellant, v. Thomas R. ISRAEL, Respondent-Appellee. . Argued and Submitted *
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1124

715 F.2d 1124

Robert MUENCH, Petitioner-Appellant, v. Thomas ISRAEL and Attorney General of Wisconsin,

Respondents-Appellees.

Richard WORTHING, Petitioner-Appellant, v. Thomas R. ISRAEL, Respondent-Appellee.

Nos. 81-2094, 81-2789.

United States Court of Appeals, Seventh Circuit.

Argued and Submitted ^* May 5, 1982.

Decided Aug. 15, 1983.

Charles Bennett Vetzner, State Public Defender, Madison, Wis., for petitioner-appellant.

Michael R. Klos, Wis. Dept. of Justice, Madison, Wis., for respondents-appellees.

Before CUDAHY and ESCHBACH, Circuit Judges, and TEMPLAR, Senior District Judge. ^**

ESCHBACH, Circuit Judge.

The appellants in these consolidated appeals are each serving life prison terms in Wisconsin for first-degree murder. Each filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that his murder trial was fundamentally unfair because he was not permitted to introduce expert testimony regarding his capacity to form the intent to kill. The courts below denied the petitions. For the reasons which follow, we affirm the judgments of the district courts.

I

The following facts surrounding the homicide of which Robert Muench was convicted are not in dispute. On the evening of August 2, 1971, Muench and a friend, Dennis Faber, both employees at a local carnival, went to a bar in Chippewa Falls, Wisconsin. A group of fellow carnival employees later arrived at the bar, including the soon-to-be deceased Hippie Bertilson. During the evening, Muench and Faber had several arguments with Bertilson and his friends. When Muench and Faber left the bar, Bertilson and his group did as well, and a series of fights ensued in which both Faber and Muench were struck on the head. Bertilson was the principal aggressor. The fighting ceased and Muench and Faber were told to leave. They went to Faber's car where Faber obtained a gun and Muench obtained a knife. Faber then approached Bertilson with gun in hand. Bertilson jumped Faber and the two fell to the ground, struggling for the gun. Muench grabbed Bertilson by the collar, pulling him away from Faber, and stabbed Bertilson twice in the back. Muench and Faber then fled the scene in Faber's car. The next day, Muench and Faber turned themselves in to the police. Bertilson died from the knife wounds inflicted by Muench.

Muench was charged with first-degree murder under Wisconsin law. Wis.Stat. § 940.01. He pled not guilty; he did not plead the defense of insanity. Muench testified in his own defense that he could not remember anything that happened on the evening of August 2, 1971 from the time he was struck on the head in the initial fight. Faber testified that as they were leaving the scene in his car Muench told him "he thought he might have stabbed someone, but he didn't know," adding, "he didn't know if he stabbed one or two guys or if he stabbed anyone." Other testimony revealed that Muench had been drinking the night in question, and there was conflicting testimony concerning his degree of intoxication.

The defense also called to the stand a psychiatrist who had examined Muench and declared him mentally fit to stand trial. Following a preliminary question by defense counsel asking the psychiatrist if he had recently examined Muench, the following colloquy transpired:

MR. FALKENBERG [prosecutor]: Your Honor, I am going to object to any questions.

THE COURT: Objection sustained. You want to be heard in the absence of the jury, Mr. Sinclair?

MR. SINCLAIR [defense counsel]: Why don't we take a recess.

THE COURT: Well, I will send the jury out. Take the jury out for a few moments.

(At 3:34 p.m. the jury was taken from the courtroom. In their absence the following occurred:)

THE COURT: Well, now in view of the objection and sustaining the objection, Mr. Sinclair, if you would like to make an offer of proof by asking Dr. Chapman the questions that you propose to ask of him, you may do so or you may state in what way you feel the testimony of Dr. Chapman is admissible. My understanding of this case is that the plea is not guilty, there is no counter plea of not guilty by virtue of mental disease.

MR. SINCLAIR: What was the basis of the objection?

MR. FALKENBERG: The basis, your Honor, of the objection is that the examina[ ]tion of Mr. Muench is immaterial in view of the fact there has been a plea of not guilty only here.

THE COURT: Yes, that's what I understood it to be.

MR. SINCLAIR: Well, then let the record show that if some degrees of homicide are submitted as a verdict to this jury, the test of what a reasonable man would do under certain circumstances will be the test and the testimony of Dr. Chapman indicates that Robert Muench has been diagnosed as an inadequate personality and as such I don't think he can be held to the test of a reasonable man.

THE COURT: You are making that in the offer of proof. Is that what you are indicating Dr. Chapman will testify to?

MR. SINCLAIR: Yes.

THE COURT: And does it bear on intent?

MR. SINCLAIR: Yes.

THE COURT: The objection is sustained and the offer of proof is denied.

MR. SINCLAIR: That's all, Doctor.

THE COURT: It's my understanding, gentlemen, that our Supreme Court has answered that question very definitely. I don't know if I remember the title of the case but it's a very recent case. We are at the guilt stage now, we are not at personality deficiencies or mental defect problems. If we were to permit testimony concerning the mental condition, character or otherwise, it would seem to me that we would thwart the statute and we have such a plea available and we have facilities for the treatment in the event there is a finding of not guilty by virtue of it. So I don't see how we can do by indirection what we otherwise could not do, and that's the basis for my ruling. * * *

At the close of the evidence, the trial court instructed the jury on both first-degree and second-degree murder and gave an instruction on voluntary intoxication. Regarding intent, it instructed, inter alia: "When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all of the natural, probable and usual consequences of his deliberate acts."

At the jury's request, the instructions on the two degrees of murder and the foregoing instruction on intent were repeated to them during their deliberations. At no time did the defense object to these instructions.

The jury found Muench guilty of first-degree murder. Muench was sentenced to life imprisonment.

In his appeal before the Wisconsin Supreme Court, defendant asserted only one federal constitutional attack on his conviction: that he was incompetent to stand trial due to his purported amnesia. Moreover, he made several state law claims of error, only two of which are germane here. First he argued that he should be granted a new trial in order to permit him to raise an insanity defense. Second, he argued that the trial court erred under state law in refusing to admit psychiatric testimony "that he suffered from a personality disturbance and that he was not capable of forming the intent necessary for first degree murder." Muench argued that the state rule excluding such testimony in the first phase of a bifurcated trial where the defense of insanity is raised should not apply in a trial in which the insanity defense is not raised.

The Wisconsin Supreme Court affirmed the conviction, holding the following on the psychiatric testimony argument:

If a person is to be found incapable of forming the necessary criminal intent because of mental disease or deficiency such defense must be pursued by a plea of not guilty because of mental disease or deficiency and established in a bifurcated trial.

In State v. Hebard (1971), 50 Wis.2d 408, 418, 184 N.W.2d 156, 162, we stated:

"... If all, or nearly all, of the testimony (predictably psychiatric evaluations of the mental condition of the defendant at the time of the crime) that is relevant on the issue of insanity, is also material on the element of intent, the basis and reason for affording an option to bifurcate the trial are gone. In fact, if testimony as to mental condition relates to both issues, there would seem no sound reason left for a plea of not guilty by reason of insanity. Proof adequate to establish insanity would be at least adequate to raise a doubt as to intent and the long standing dispute as to who is to be held criminally responsible for wrongdoing would be replaced by disputes as to what degree of emotional or mental disorders would be sufficient to cast a doubt as to intent...."

Muench v. State, 60 Wis.2d 386, 395-96, 210 N.W.2d 716, 721 (1973).

Muench instituted a post-conviction proceeding pursuant to Wis.Stat. § 974.06, apparently sometime in early 1980, in which he challenged the constitutionality of excluding the psychiatric testimony, apparently on the authority of our decision in Hughes v. Mathews, 576 F.2d 1250 (7th Cir.), cert. dismissed sub nom., Israel v. Hughes, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978). His petition for relief was apparently dismissed on June 30, 1980 on the basis of the decision of the Wisconsin Supreme Court in Steele v. State, 97 Wis.2d 72, 294 N.W.2d 2 (1980).

On July 10, 1980, Muench filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Wisconsin. The district court denied the petition. 514 F.Supp. 1194 (E.D.Wis.1981).

The first argument considered by the district court was petitioner's contention that the intent instruction given at his trial, in conjunction with the exclusion of the psychiatric testimony, created an impermissible conclusive presumption and relieved the prosecution of its burden of proving the essential element of intent under the analysis set forth in Hughes v. Mathews, supra. The district court noted the factual similarities between Hughes' and Muench's cases, but concluded Hughes...