State v. Morgan, 93-2611-CR

• Decision Date: 20 June 1995
• Docket Number: No. 93-2611-CR,93-2611-CR
• Citation: 536 N.W.2d 425,195 Wis.2d 388
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Felicia MORGAN, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 425

536 N.W.2d 425

195 Wis.2d 388

STATE of Wisconsin, Plaintiff-Respondent, v. Felicia MORGAN, Defendant-Appellant. ^d

No. 93-2611-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 7, 1994.

Opinion Released June 20, 1995.

Opinion Filed June 20, 1995.

For the defendant-appellant the cause was submitted on the briefs of Robin Shellow, Milwaukee.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and G.M. Posner-Weber, Asst. Atty. Gen.

Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.

SULLIVAN, Judge.

Felicia Morgan appeals from a judgment of conviction, after a bifurcated jury trial, for one count of first-degree intentional homicide, while armed, as a party to a crime; one count of attempted armed robbery, as a party to a crime; and five counts of armed robbery, as a party to a crime. ¹ After an overview of the issues raised by Morgan on appeal and an explication of the undisputed facts, we address each of the four issues Morgan raises seriatim. A more detailed discussion of the facts relevant to each issue is set forth in the appropriate section below.

Morgan presents four issues for our review. The first two arise out of the first phase of her bifurcated trial:

1. Did the trial court erroneously exercise its discretion by excluding expert psychiatric and psychological testimony on post-traumatic stress disorder and expert and lay testimony on Morgan's psycho-social history?

2. Did the trial court err by denying Morgan's requested lesser-included offense jury instruction for first-degree reckless homicide?

The last two issues arise out of the second phase of her bifurcated trial:

3. Did the trial court violate Morgan's constitutional right to present a defense by excluding the expert testimony of a psychologist from the responsibility phase of her bifurcated trial on the grounds that it was irrelevant and cumulative to evidence already presented?

4. Did the trial court err by refusing to give Morgan's "theory of the case" special instruction to the jury?

After a careful review of the arguments presented by the parties and our own review of the applicable law, we conclude that there are no grounds for reversing Morgan's judgment of conviction. Accordingly, we affirm.

I. BACKGROUND

This case comes before us as a result of a senseless fifteen-minute crime spree carried out by seventeen-year-old Morgan and Manuella Johnson ("Marie"), a fifteen-year-old juvenile. Their crime spree left in its wake a trail of victims and ended with the homicide of Brenda Adams, a young woman who was shot and killed--ostensibly for the leather trench coat she was wearing.

In the early morning hours of October 26, 1991, Morgan, Johnson, and Kurearte Oliver were traveling in Oliver's car to a party. As they approached 35th Street and Villard Avenue in the City of Milwaukee, they passed three men standing by the street who called out to Oliver, "You see that white bitch back there? She got on a herringbone dog." Morgan knew this meant that the girl was wearing a gold herringbone necklace. Oliver then gave Morgan a small-caliber handgun that Johnson had supposedly stolen from her mother. Oliver told Morgan and Johnson to "get the herringbone for me."

Morgan and Johnson left the car and approached the girls. Morgan had the gun in her right-hand coat pocket. Suddenly, the three men who had originally yelled out to Oliver pushed Morgan aside and "jumped" the girl, stealing the necklace. Morgan went back to the car and told Oliver, "Them dudes beat me to it and got the herringbone." Johnson stated that she had stolen some shoes from one of the girls. Oliver said that he wanted to know where the three men went, so Morgan and Johnson got back into the car to search for the men.

As they were driving, they saw three girls and a boy walking down the street. Oliver asked them if they had seen the three men and they stated that they had not. As Oliver's car pulled away from them, Johnson said that she wanted the coat that one of the girls was wearing. Morgan and Johnson got out of the car, approaching the four youths. Morgan held out the gun, and she and Johnson then stole a necklace, the boy's coat, and a baseball hat from them.

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

What occurred next is disputed. Several witnesses at the scene (including Johnson) stated that Johnson and Morgan crossed the street and told Adams to "give up" her coat. Adams refused, and Johnson began fighting with her. Several people outside the party walked towards the fight and Morgan flashed the handgun, telling them to stay away. Morgan and Johnson fought with Adams until Adams was eventually pulled across the street. She was on the ground, slumped against a light pole when Morgan pointed the handgun near Adams's shoulder and fired one shot. Several witnesses heard other shots being fired and the police later found expended .38-caliber shell casings across the street from where Adams was shot. Morgan and Johnson stole Adams's trench coat and then ran back to Oliver's car.

Morgan turned herself in to the police the following day and gave a different account of the events leading to Adams's homicide. Morgan stated that after Johnson dragged Adams across the street, Oliver and "T.C." pulled up in the car. Morgan stated that she heard shots being fired from across the street. Morgan closed her eyes and fired one shot, and when she opened her eyes, her arm was pointed at Adams's shoulder. She helped Johnson steal the coat and then she (Morgan) grabbed Adams's necklace. She saw blood running down Adams's shoulder and dropped the necklace. She then moved towards Oliver's car when she heard more gunshots from across the street. Morgan turned back and fired one more shot at Adams. She got in the car and they drove off. Adams died as a result of the gunshot wound.

Morgan was taken into custody and the State filed both a delinquency petition and a petition to waive Morgan into adult court. The juvenile court granted the waiver petition, Morgan waived her preliminary hearing, and the State filed a seven-count information charging Morgan with five armed robberies, one attempted armed robbery, and first-degree intentional homicide. Morgan entered pleas of not guilty and not guilty by reason of mental disease or defect and the case was set for a bifurcated trial.

Morgan filed a pretrial motion in limine through which she sought to introduce (during the first phase of her trial) expert and lay testimony on both post-traumatic stress disorder and Morgan's psycho-social history. The trial court denied the motion.

The jury found Morgan guilty of all counts in the first phase of her trial. During the second phase of her trial, Morgan presented two expert witnesses and several corroborating lay witnesses to support her claim that Morgan was not criminally responsible for her actions because she suffered from post-traumatic stress disorder and brief reactive psychosis at the time of the crimes. She also sought further testimony from another expert witness on the development of post-traumatic stress disorder in children living in foreign "war zones." The trial court excluded this testimony. After the State presented several expert witnesses challenging Morgan's claim, the jury, by a vote of ten-to-two, found that Morgan was not suffering from a mental disease at the time of the crimes. The trial court entered judgment and sentenced Morgan. She now appeals.

II. PSYCHIATRIC AND LAY TESTIMONY IN GUILT PHASE OF TRIAL

We first address the issues arising out of the first phase of Morgan's bifurcated trial. Morgan argues that the trial court erroneously exercised its discretion when it denied her motion in limine to introduce expert testimony on post-traumatic stress disorder and expert and lay testimony on her psycho-social history during the guilt phase of her bifurcated trial. We conclude the trial court acted within its discretion in excluding such evidence.

A. Psychiatric and Psychological Testimony Evidence in Bifurcated Trial.

This case presents another attempt to expand the scope of "mind science" ² testimony within the framework of Wisconsin's "insanity plea" bifurcated trial system. ³ At the outset, we note that the use of psychiatric and psychological expert testimony in criminal trials has a volatile and contentious history in Wisconsin, particularly in the last twenty-five years. See Haas v. Abrahamson, 910 F.2d 384, 389-92 (7th Cir.1990) (discussing recent appellate history of using psychiatric testimony in Wisconsin criminal trials); see also infra note 15 and accompanying text. Nevertheless, Wisconsin's bifurcated trial system dates back to the 1878 Revised Statutes that "provided for the trial of the plea of insanity prior to the determination of the general question of guilt." Steele v. State, 97 Wis.2d 72, 85, 294 N.W.2d 2, 8 (1980) (citation omitted); Muench v. Israel, 715 F.2d 1124, 1131-32 (7th Cir.1983) ("If the jury found the defendant to be sane beyond a reasonable doubt, the guilt phase of the trial commenced, during which proof of insanity was inadmissible."), cert. denied sub nom., Worthing v. Israel, 467 U.S. 1228, 104 S.Ct. 2682, 81 L.Ed.2d 878 (1984). ⁴ While the present formulation under § 971.165, STATS., ⁵ has little in common with its statutory...