Morgan v. Krenke

• Decision Date: 09 November 1999
• Docket Number: No. 96-C-1176.,96-C-1176.
• Citation: 72 F.Supp.2d 980
• Parties: Felicia Aries MORGAN, Petitioner, v. Kristine KRENKE, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 980

72 F.Supp.2d 980

Felicia Aries MORGAN, Petitioner, v. Kristine KRENKE, Respondent.

No. 96-C-1176.

United States District Court, E.D. Wisconsin.

November 9, 1999.

As Amended November 17, 1999.

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Robin Shellow, Milwaukee, WI, for Petitioner.

Gregory M. Posner-Weber, Madison. WI, for Respondent.

DECISION AND ORDER

ADELMAN, District Judge.

Petitioner Felicia ("Lisa") Morgan contends that her conviction in state court for first-degree intentional homicide, for which she is now serving a life sentence, was unconstitutionally obtained because the trial court excluded relevant evidence offered to rebut the specific intent required for that offense under Wisconsin law. Specifically, Morgan argues that the exclusion of expert psychiatric testimony, lay "psychosocial" history testimony and her own testimony prevented her from presenting her theory of defense to the charge of first-degree murder and from eliciting a jury instruction for the lesser-included offense of first-degree reckless homicide. See Wis. Stat. §§ 940.01, 939.23, 940.02.¹ Petitioner's claim is at once novel and familiar, and requires this court to confront the "volatile and contentious history"² in state courts and in this federal circuit on the admissibility of psychiatric evidence in Wisconsin criminal trials.

I. FACTUAL BACKGROUND

On the streets of Milwaukee in the early morning hours of October 26, 1991, Morgan, then aged seventeen, participated in a random, fifteen-minute armed robbery spree that culminated in the homicide of Brenda Adams. There is no dispute that petitioner was holding the gun and fired the shot that killed Adams.

Shortly after midnight that morning, petitioner was on her way to a party with fifteen-year-old Manuella ("Marie") Johnson and Kurearte Oliver in Oliver's car. As they approached 35th Street and Villard Avenue, they passed three men who called their attention to a girl wearing a gold herringbone necklace. Oliver gave Morgan a small-caliber handgun that Johnson had stolen from her mother and told the girls to go get the herringbone.

Morgan and Johnson left the car and approached the girl with the necklace and her friend. Morgan had the gun in her right-hand coat pocket. Suddenly, the three men pushed petitioner aside and "jumped" the girl with the necklace, stealing it for themselves. Petitioner returned to the car and told Oliver that the men beat her to the necklace. Johnson, however, managed to steal some shoes from the girl's friend. Oliver wanted to find the men, so Morgan and her friends set out to look for them.

As they were driving, they saw three girls and a boy walking. Oliver asked them if they had seen the three men. They said they hadn't. As Oliver's car began to pull away, Johnson said that she wanted the coat worn by one of the girls. Morgan and Johnson got out of the car and approached the four youths. Morgan held out the gun, and she and Johnson stole the coat, a necklace, the boy's coat, and a baseball hat. They returned to the car.

At this point, Oliver began driving fast. A white station wagon stopped in front of them, and Oliver swerved to avoid hitting the car. Angry, Oliver grabbed the gun and shot at the station wagon. Petitioner later said that this was the first time she knew the gun was loaded.

Oliver then drove back to the area of 35th Street and Villard Avenue, where the party was located. Oliver spotted his friend "T.C." and stopped to talk to him. Meanwhile, Johnson saw Brenda Adams standing near the front of the apartment where the party was. Pointing to Adams's leather trench coat, Johnson said: "I want that trench." T.C. told them not to bother Adams because he had danced with her earlier at the party. Oliver pulled the car around the corner, and petitioner and Johnson exited. Before Morgan shut the car door, Oliver handed her the gun and said: "Let Marie do what she got to do and don't let no niggers get into it."

What occurred next is somewhat unclear, but these facts are not greatly disputed. Morgan and Johnson crossed the street, and Johnson told Adams to "come up out that coat." Adams refused, and she and Johnson began fighting. In the tussle, Johnson dragged Adams across the street. Several people outside the party walked towards the fight. Morgan flashed the handgun, telling them to keep their distance. Petitioner claims that at this point someone across the street started shooting. Many witnesses heard shots being fired, although whether the sound of gunfire preceded the shooting of Adams is not entirely clear. Police later found expended .38-caliber shell casings across the street from where Adams was shot.

Adams was on the ground slumped against a light pole when petitioner closed her eyes and fired one shot into her shoulder. Morgan helped Johnson remove the girl's leather trench coat and then reached for her necklace. At that point, Morgan claims she saw blood running down the girl's shoulder and became scared, dropping the necklace. Moving towards Oliver's car, she heard more gunshots from across the street. Morgan turned and fired one more shot in Adams's direction. Then she got into Oliver's car and drove off with her friends. Adams died as a result of the gunshot wound.

On October 27, 1991, petitioner called police to surrender herself. In her statement to Milwaukee police detective Brian O'Keefe, she said that she didn't mean to kill Adams and doesn't know why she fired the gun.

II. PROCEDURAL HISTORY

Morgan was taken into custody and waived into adult court. She was charged with first-degree intentional homicide, five armed robberies and one attempted armed robbery. She entered pleas of not guilty and not guilty by reason of mental disease or defect, triggering the bifurcated trial procedure set forth in Wis. Stat. § 971.165.³

In Wisconsin, a defendant who wishes to raise an insanity defense but also wants to contest other issues bearing on guilt must do so by coupling a plea of not guilty with a plea of not guilty by reason of mental disease or defect. The statute then requires "a separation of the issues with a sequential order of proof in a continuous trial." Wis. Stat. § 971.165(1)(a). The jury first hears evidence on the question of guilt and must reach a unanimous verdict on the not guilty plea. If the defendant is found guilty, the jury then hears evidence on the plea of not guilty by reason of mental disease or defect. At least five-sixths of the jurors must agree to a verdict reached in this second phase.

On June 11, 1992, Morgan filed a pretrial motion in limine through which she sought to introduce in the first phase of trial: expert psychiatric testimony regarding post-traumatic stress disorder (PTSD) and related conditions that she had been diagnosed repeatedly as suffering from; "psycho-social" history evidence consisting of the testimony of friends and family as to her horrific, violence-fraught childhood; and her own testimony about her state of mind at the time of the shooting. (See Ex. H.⁴) See also Part III infra. All of this testimony was offered for the purpose of casting doubt on the specific intent required for a first-degree intentional homicide conviction in Wisconsin. On June 19, 1992, Milwaukee County Circuit Court Judge Michael D. Guolee held a hearing on the motion and denied the motion.

On June 23, 1992, Morgan filed a second motion in limine to introduce her own testimony regarding her "trance-like" state of mind at the time of the Adams shooting. (See Ex. K.) The record does not disclose that this motion was ever specifically ruled on by the trial court, (see Ex. L at 2 (counsel stating at next pretrial hearing that no motions were pending)), although respondent asserts without citation to the record that Morgan always remained free to take the stand and testify as to her state of mind at the time of the killing, (see Resp't's Br. at 8). Ultimately, Morgan did not testify and presented no evidence in the first phase of her trial.

The jury found Morgan guilty on all counts, including the charge of first-degree murder. During the second phase of her trial, Morgan presented two expert witnesses and several corroborating lay witnesses to support her defense that she suffered from PTSD, brief reactive psychosis and borderline personality disorder at the time of the crimes and therefore was not responsible for her criminal conduct. See Wis. Stat. § 971.15.⁵ She also sought to introduce testimony from another expert witness on the development of PTSD in children living in foreign "war zones." The trial court excluded this testimony as cumulative and irrelevant. The state presented several expert witnesses challenging Morgan's insanity defense. By a vote of ten to two, the jury rejected Morgan's plea of not guilty by reason of mental disease or defect.

Morgan received an automatic sentence of life imprisonment for first-degree intentional homicide and indeterminate terms of no more than ten or no more than five years on the robbery counts, all to run concurrently with the life sentence. She appealed her conviction, which was affirmed in a lengthy, published opinion by the Wisconsin Court of Appeals, discussed in detail later in this decision. The Wisconsin Supreme Court denied Morgan's petition for review.

Morgan's federal habeas petition initially raised the following four claims: (1) the trial court improperly excluded expert and lay testimony on PTSD and on Morgan's psycho-social history — including Morgan's own testimony — in the guilt phase of her bifurcated trial; (2) the trial court improperly failed to instruct the jury on the lesser-included offense of first-degree reckless homicide during the guilt phase of trial; (3) the trial court improperly excluded additional expert testimony during the second phase of trial; and (4) the trial court improperly refused to instruct the jury about certain psychiatric-diseases during the second phase of trial. The...