Morgan v. Krenke

• Decision Date: 13 November 2000
• Docket Number: No. 99-4160,99-4160
• Citation: 232 F.3d 562
• Parties: (7th Cir. 2000) FELICIA ARIES MORGAN, Petitioner-Appellee, v. KRISTINE KRENKE, Respondent-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 562

232 F.3d 562 (7th Cir. 2000)

FELICIA ARIES MORGAN, Petitioner-Appellee, v. KRISTINE KRENKE, Respondent-Appellant.

No. 99-4160

In the United States Court of Appeals For the Seventh Circuit

Argued September 7, 2000

Decided November 13, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96-C-1176--Lynn Adelman, Judge.

Before BAUER, POSNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Early one morning in October of 1991, 17-year-old Felicia Morgan and two friends went on a senseless and incomprehensible 15-minute crime spree on Milwaukee's north side. They committed several armed robberies, motivated by nothing more meaningful than the desire to steal jewelry or clothing from a bevy of victims. But robbery target Brenda Adams did not go quietly. When Adams refused to give up her leather trench coat, Morgan shot and killed her. Morgan then ran off with the coat.

At her state trial on multiple charges growing out of these chilling events, Morgan entered pleas of not guilty and not guilty by reason of mental disease or defect pursuant to a Wisconsin procedural statute, sec. 971.165. Under that statute, a trial is bifurcated into two parts. The first deals with guilt and the second with responsibility.

Morgan proceeded to trial before a jury in the Milwaukee courtroom of Circuit Judge Michael D. Guolee. In the guilt phase, Morgan was convicted of first degree intentional homicide while armed, five counts of armed robbery, and one count of attempted armed robbery. In the second phase, the jury rejected her plea of not guilty by reason of mental disease or defect. She was sentenced to a life term on the homicide and assorted other terms on the robberies. The Wisconsin Court of Appeals upheld her convictions (see State v. Morgan, 195 Wis. 2d 388 (1995)) and the Wisconsin Supreme Court denied review. Morgan then filed a habeas corpus petition pursuant to 28 U.S.C. sec. 2254 in the federal district court. The district court granted the petition, adecision the State of Wisconsin now appeals.

In her habeas petition, Morgan claimed that the state trial judge's exclusion of lay and expert opinion testimony regarding her mental condition during the guilt phase of her trial violated her constitutional rights to due process of law, to present a defense, and to testify in her own behalf. Morgan said she suffered from post-traumatic stress disorder and that events just prior to the murder triggered a trance-like state, consistent with PTSD, which cast doubt on whether she had the specific intent to shoot Adams. In granting her habeas petition, the district court parsed her evidence into four categories: expert opinion testimony on the ultimate issue of capacity to form intent; other expert psychiatric testimony that Morgan suffered from PTSD; lay testimony regarding Morgan's "psycho-social history"; and Morgan's own testimony. With the exception of the first, the district court found that exclusion of the evidence violated Morgan's constitutional rights.

To state more precisely what Morgan's claim is requires a brief explanation of Wisconsin's bifurcated trial system, which in one form or another dates back to 1878. The current version, codified at sec. 971.165 Wis. Stat., controls the admission of psychiatric testimony on a defendant's intent to commit a crime. In general, the Wisconsin law sets out a sequential order of proof in which psychiatric testimony regarding a defendant's capacity to form intent is relevant only in the responsibility (second) phase of the trial, not the guilt phase. The precise scope of the exclusion of psychiatric testimony as to intent has been the subject of a fair number of decisions of the Wisconsin courts and, from time to time, from this court as well. An interesting series of cases reveals the federal-state tension this procedure has provoked. In Hughes v. Mathews, 576 F.2d 1250 (7th Cir. 1987), we held a conviction invalid where psychiatric testimony as to intent was excluded in a single-stage trial. For a short time the Wisconsin Supreme Court went along with us and, in Schimmel v. State, 84 Wis. 2d 287 (1978), applied our rationale to the Wisconsin bifurcated trial system. But just 2 years later, the Wisconsin Supreme Court took a closer look at the issue in Steele v. State, 97 Wis. 2d 72 (1980), and reasserted its former stand excluding psychiatric testimony as to a defendant's capacity to form intent during the guilt (first) phase of a bifurcated trial. We, in turn, reconsidered the issue in Muench v. Israel, 715 F.2d 1124 (7th Cir. 1983), concluding that a state may constitutionally exclude expert testimony offered to show that a defendant lacked the capacity to form specific intent.

Steele, authored by former Chief Justice Nathan S. Heffernan, is Wisconsin's definitive opinion on the issue at hand. Its holding is premised on Wisconsin's skepticism about the reliability of psychiatric opinion evidence offered to show a causal link between a defendant's mental disease and the capacity to form an intent to commit the crime alleged. The court found evidence of that sort to be lacking in trustworthiness and reliability. It is, in Justice Heffernan's words, "neither competent, relevant, nor probative . . . ." 97 Wis. 2d at 97. In other words, in Wisconsin "a finding of insanity is not a finding of an inability to intend." State v. Repp, 122 Wis. 2d 246, 261 (1985). It is important to note that psychiatric evidence is admissible during a trial's responsibility phase where the issue involves more a moral than a legal question; the determination of capacity to form intent in the criminal law sense requires "a fine tuning of an entirely different nature" than that required for the determination of whether or not there should be criminal responsibility: "Whether or not there should be criminal responsibility is essentially a moral issue." Steele, at 96.

There has been some erosion of the general principle set out in Steele. For instance, psychiatric evidence regarding the capacity to form intent based solely on a defendant's voluntary intoxication is admissible. State v. Flattum, 122 Wis. 2d 282 (1985), reaffirmed that under Steele psychiatric opinion testimony is prohibited on the issue of capacity to form intent when the opinion is based on a defendant's mental health history and restated Wisconsin's skepticism "in the ability of psychiatry to causally link psychiatric disorders to a lack of capacity to form specific intent." At 297. The court concluded, however, that such testimony is admissible if the opinion is based solely on a defendant's intoxicated condition. Nevertheless, exclusion of the testimony was upheld in Flattum because the opinion of the psychiatrist regarding the defendant's capacity to form intent was based on both the defendant's intoxication and his mental health history, which rendered it inadmissible under Steele. Then the court added that psychiatric testimony as to a defendant's mental health history, stopping short of a conclusion regarding a capacity to form intent, could be admissible to cast doubt as a factual matter on whether a defendant had the specific intent to commit the crime alleged. At the same time, the court granted trial judges considerable discretion to evaluate the evidence as to relevance, reliability, and the possibility of prejudice and confusion. See also State v. Repp, 122 Wis. 2d 246 (1985).

Taking heart from Flattum and Repp, Morgan contends that in the guilt phase of her trial she was prevented from introducing admissible evidence regarding her mental health history. In general, her claim is that in the environment in which she grew up, she lived through several traumatic incidents which caused her to suffer from PTSD and Brief Reactive Psychosis. These conditions caused her to "act unintentionally" in killing Adams. She wanted to present expert psychiatric evidence regarding her condition; lay testimony regarding 17 specific incidences of trauma and violence she experienced which trigger symptoms of PTSD, one of which goes back to an incident when she was 3 years old when her father shot at her mother "because there was too much salt in the gravy"; and her own testimony that she was in a trance-like state of mind when she killed Adams. Morgan contends that, in excluding this evidence, the Wisconsin courts were confused as to the "use of ultimate opinion testimony and the use of causation testimony." In an attempt to clarify the distinction, she says "It was not Felicia Morgan's post-traumatic stress disorder which caused her to unintentionally kill Brenda Adams, but the flashbacks and resulting trance-like states which were unavoidable symptoms of PTSD." Apparently she believes that it might be proper to exclude evidence that the disorder itself made her incapable of forming intent, but not to exclude evidence that the symptoms of the disorder caused her actions to be unintentional. This is a razor-thin distinction, to say the least. In any case, the essence of her argument is that her evidence does not go to the ultimate issue of her capacity to form intent, and therefore its exclusion is not supported by the Steele-Flattum rule. So banning the evidence, Morgan says, violated her constitutional rights to due process, to present a defense, and to testify in her own behalf.

We proceed under sec. 2254 which, even prior to the amendments made to the habeas statute by the Antiterrorism and Effective Death Penalty Act (AEDPA), placed constraints on the issues federal courts may consider when reviewing state convictions. There were limits to our review of state fact-finding set out under the previous version of sec. 2254(d). For instance, when a petitioner has had a "full and fair opportunity" to litigate a Fourth Amendment claim in state court, we will not grant habeas relief on a claim based on an unconstitutional search and seizure. Stone v. Powell, 428 U.S. 465 (1976). And...