COURT OF APPEALS DECISION DATED AND RELEASED November 7, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
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No. 95-0257-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TIMOTHY T. MORGAN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Timothy T. Morgan appeals from the judgment
of conviction, following a jury trial, for first-degree intentional homicide
while armed. He also appeals from the
trial court order denying his motion for postconviction relief. He argues that the trial court erred
by: (1) allowing reference to his gang affiliation;
(2) allowing testimony that a State's witness was brought to trial
pursuant to a body attachment; and (3) excluding a psychologist's
testimony that Morgan had a non-violent character. We affirm.
Morgan, age sixteen at
the time of the crime, killed fifteen-year-old Jeffrey Griffin in what appeared
to be a senseless, gang-related retaliation.
Jerald Jenkins, a State's witness, testified that he and Morgan were
members of the Vice Lords. He testified
that Griffin belonged to a gang, the “McKinley Street Players,” and that a
couple of weeks before the shooting, there had been a confrontation between a
group of youths that included Griffin and a group of youths that included
Morgan. Jenkins testified that the
confrontation so angered Morgan that he (Morgan) “said he was going to pop them
before they pop him.” Jenkins stated
that he saw Morgan shoot Griffin once, causing him to fall, and two more times
as Griffin lay on the ground.
Morgan did not deny
shooting Griffin, but maintained that he acted in self-defense when he panicked
in response to Griffin making a gesture toward his (Griffin's) pocket. This theory of defense, however, was offered
only in defense counsel's opening statement.
Counsel stated:
[I]t
is very likely that [Morgan] will take the stand and tell you ... that when he
saw Jeffrey Griffin's hands coming out of his pocket, he realized that this is
the real thing. There is no place to go
anymore. There is no place to hide, and
he pulled out his gun and he started firing.
And when the gun ran out of bullets, he ran away because he was scared
to death.
Evidence
supporting this theory, however, was not introduced. Morgan never testified, and none of the defense's five witnesses
saw the shooting.
Morgan first argues that
the trial court erred in allowing witnesses to refer to gang affiliations. Jenkins testified that both he and Morgan
were associated with the Vice Lords.
Detective Olson testified that Jenkins told him that Morgan was “a Vice
Lord from the Cabrini Green housing projects in Chicago.” Morgan did not object to Jenkins's
testimony. Although defense counsel did
object to the question of Olson regarding whether Jenkins knew Morgan was a
gang member, counsel indicated that he would “state my objection on the
sidebar.” The sidebar then was conducted
but not reported, and defense counsel made no further record of the basis for
his objection. We conclude that Morgan
waived any challenge to testimony about gang affiliations.
Section 901.03(1)(a), Stats., in relevant part provides that
“[e]rror may not be predicated upon a ruling which admits ... evidence unless
... a timely objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not apparent from the
context.” Morgan failed to object to
Jenkins's gang reference. Morgan also
failed to make an adequate record of the basis for his objection to Olson's
testimony. See State v.
Peters, 166 Wis.2d 168, 174, 479 N.W.2d 198, 200 (Ct. App. 1991) (“a
defendant must apprise the trial court of the specific grounds upon which the
objection is based” to preserve the matter for appellate review). Here, the specific ground is “not apparent
from the context,” see § 901.03(1)(a), Stats.,
because this gang reference was one of many throughout the trial, some elicited
by the defense, which apparently related to a clearly relevant aspect of the
trial—the antagonism between Morgan and Griffin. As the trial court noted in its decision denying postconviction
relief, “[t]he defense relied on the existence of gangs, or rival groups, in
its effort to establish that the defendant felt fear for his own safety.”
Morgan next argues that
the trial court erred in allowing Milwaukee Police Detective Gary Temp to
testify that William Long had to be brought to the trial pursuant to a body
attachment. Long testified that he was
the boyfriend of Morgan's aunt and that, shortly after midnight on the night of
the shooting, Morgan appeared at his apartment in Madison, Wisconsin. Long testified about certain admissions that
Morgan made to him involving how he obtained the gun and other circumstances of
the shooting. Later in the trial,
Detective Temp testified that he met with Madison police to secure the
appearance of Long who was in custody on a body attachment warrant for failing
to respond to a subpoena. Again,
however, Morgan did not object. Thus,
he waived this issue as well.
Finally, Morgan argues
that the trial court erred in not allowing Dr. Itzhak Matusiak, a
psychologist who had examined Morgan for purposes of the juvenile waiver
hearing, to testify that Morgan had a non-violent character. At the waiver hearing, Dr. Matusiak
testified regarding Morgan's “non-assaultiveness and non-aggressiveness.” Morgan presented Dr. Matusiak's waiver
hearing testimony as an offer of proof to the trial court.
The State concedes that
the trial court erroneously concluded that Matusiak's opinion lacked sufficient
foundation. As the State acknowledges,
the supreme court has concluded that “[e]vidence of a defendant's character for
nonviolence has been recognized as a pertinent character trait in a prosecution
for first degree murder.” State
v. Brecht, 143 Wis.2d 297, 322, 421 N.W.2d 96, 106 (1988). The State argues, however, that even if Dr.
Matusiak's testimony would have qualified as an admissible opinion of Morgan's
character under § 904.05(1), Stats.,
it was properly excluded under § 904.03, Stats.,
because it “was only marginally relevant to defendant's claim of self-defense
and was cumulative of other opinion testimony that defendant has a character
for nonviolence.” Alternatively, the
State argues that the exclusion of Dr. Matusiak's testimony was harmless error.
We conclude that any
error in the exclusion of Dr. Matusiak's testimony was harmless because there
is no reasonable possibility that the admission of Dr. Matusiak's testimony
would have altered the jury's verdict. See
State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-232
(1985). As the State convincingly
argues, this is clear for several reasons.
First, Dr. Matusiak's
testimony regarding Morgan's non-violent character would have been
substantially compromised by additional testimony he offered at the waiver
hearing. Perhaps most significantly,
Dr. Matusiak testified that Morgan “does have some problems with impaired
perceptions,” “has some difficulties modulating his emotions,” and “forming
peer relationships,” has “a negative and oppositional orientation,” “may not be
willing to tolerate some of the refined compromises involved in the course of
social contacts,... [a]nd he may occasionally react with anger and with
oppositional realism especially when he feels wronged.” Further, Dr. Matusiak conceded in his
testimony at the waiver hearing that his “diagnostic statement ... doesn't tell
us about what that person really is like and in the real world.”
Second, other defense
witnesses testified that Morgan had a non-violent character.
Third, the defense
offered no evidence to support Morgan's opening statement claim of
self-defense. See State v.
Camacho, 176 Wis.2d 860, 872, 501 N.W.2d 380, 384 (1993) (defendant
must meet “initial requirement” “to show that he reasonably believed that he
was preventing or terminating an unlawful interference with his person” to
support a self-defense claim).
Finally, the State's
case was overwhelming. It included
evidence that Morgan intended to “pop” those in a group of youths including
Griffin, borrowed a gun before the shooting, crossed the street to confront
Griffin, and shot him multiple times, even after Griffin fell to the ground.
In light of the
foregoing, there is no reasonable possibility that admission of Dr. Matusiak's
testimony would have altered the jury's verdict and, therefore, any error in
its exclusion was harmless.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.