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McKinney v. Israel

July 16, 1984


Author: Wood

Before WOOD and ESCHBACH, Circuit Judges, and HENLEY, Senior Circuit Judge.*fn*

HARLINGTON WOOD, Jr., Circuit Judge.

Appellant Rodney McKinney was convicted by a Wisconsin state court jury of first degree murder and sentenced to life imprisonment for the brutal slaying of his girlfriend. After an unsuccessful attempt to show ineffective assistance of counsel in the state courts,*fn1 McKinney petitioned the federal district court for the Eastern District of Wisconsin for a writ of habeas corpus. The district court denied the petition on the grounds that McKinney failed to prove ineffective performance of trial counsel. We affirm denial of the writ, but on the grounds of lack of prejudice from any possible ineffective assistance.

Under the Supreme Court's recent decision, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant claiming ineffective assistance of counsel must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068. The Court noted that there is no reason to evaluate counsel's performance before turning to the prejudice question, and thus cases often could be disposed of on the ground of lack of sufficient prejudice. Id. at 2070. We are able to dispose of this case on such grounds, and we affirm denial of the petition.*fn2


The turbulent relationship between Rodney McKinney and Margaret Utnehmer ended tragically when McKinney bludgeoned and stabbed Utnehmer to death in the kitchen of his apartment on March 15, 1979. Utnehmer, then seventeen years old, had told McKinney that morning about her infidelity and possible pregnancy by another man. After the attack on Utnehmer, McKinney took two checks payable to Utnehmer and her savings account passbook, cashed the checks at a local bank, and drove west. From Minneapolis, he called the local Wisconsin county sheriff's department and confessed over the telephone. On the advice of a deputy sheriff there, he turned himself in to Minneapolis police.

Upon his return to Wisconsin, appellant, then twenty-three years old, was found competent to stand trial. Appellant entered pleas of not guilty and not guilty by reason of mental disease or defect. The court appointed three psychiatrists to examine McKinney and report their opinions on his mental responsibility for the killing. All three doctors concluded that appellant was not suffering from a mental disease or defect such as to make him not responsible for his actions, but all noted that he lacked self-control and was under great emotional pressure from that day's events.

The state courts of Wisconsin follow a bifurcated trial procedure when a plea of not guilty by reason of insanity is to be tried by a jury. Wis.Stat. § 971.175 (1981-82); see Muench v. Israel, 715 F.2d 1124, 1131-33 (7th Cir.1983), cert. denied, 467 U.S. 1228, 104 S. Ct. 2682, 81 L. Ed. 2d 878 (1984) (historical discussion). In the first phase of the trial to jury determines the defendant's guilt, while in the second phase the jury determines whether the defendant was mentally responsible for the crime. As required by statute, the jury in this case was told that there would be a second phase of the trial in which it would consider the insanity plea. In the first phase of the trial, the jury was instructed on first and second degree murder; the trial judge refused defense counsel's requested instruction on manslaughter in the heat of passion. The jury convicted McKinney of first degree murder. Shortly after the second phase of the trial began, defense counsel withdrew the plea of not guilty by reason of mental disease or defect. The trial judge entered the first degree murder conviction and sentenced McKinney to life imprisonment.


We turn directly to the prejudice analysis. The petition for writ of habeas corpus may be granted only if McKinney can show a reasonable probability that without defense counsel's alleged errors the result of his trial would have been different. See Strickland, 104 S. Ct. at 2068. We review the facts to determine whether evidence was available to cast a reasonable doubt that McKinney was guilty of first degree murder.

A. Second Degree Murder

Under Wisconsin law, first degree murder requires the prosecution to prove beyond a reasonable doubt the defendant's intent to kill, defined as "the mental purpose to take the life of another human being." Wis.Stat. § 940.01(2) (1981-82). Second degree murder is defined to cover either dangerous conduct evincing a depraved mind disregarding human life, or a death flowing from the commission or attempted commission of a felony. Wis.Stat. § 940.02 (1981-82). The critical difference between first and second degree murder is that intent to kill is an element of first degree murder but not of second degree murder. Terrell v. State, 92 Wis. 2d 470, 473, 285 N.W.2d 601, 603 (1979); McAllister v. State, 74 Wis. 2d 246, 253, 246 N.W.2d 511, 515 (1976). A provocation that fails to support manslaughter may not be used to support a reduction from first to second degree murder. See State v. Lee, 108 Wis. 2d 1, 13, 321 N.W.2d 108, 113-14 (1982).

Appellant claims ineffective assistance due to trial counsel's unfamiliarity with the then-current Wisconsin law on admissibility of psychiatric testimony on the issue of intent to kill.*fn3 A review of the psychiatrists' reports and the facts of the case, however, reveals no reasonable probability that a different approach could have raised doubt that McKinney had an intent to kill. Dr. Fosdal, appointed to represent the court, did not comment on the issue of intent to kill in his initial report, but recorded no observations that suggested a lack of intent to kill. At the post-conviction hearing, Dr. Fosdal testified that he could not say whether or not the murder was intentional. Dr. Mulvaney, appointed to represent appellant, reported that he found "no evidence of a psychiatric disorder to motivate or interfere with [McKinney's] intent to carry out his actions. In my opinion, his actions were intended to bring about punishment or physical harm to another individual. Whether his intention was to kill is known only to Rodney." (Revised Conclusion; emphasis in original). Dr. Roberts, appointed to represent the state, did not address intent to kill in his original report. At the request of McKinney's appellate counsel, Dr. Roberts expanded his findings:

It is my opinion that as of the time of that behavior there was a mental impairment present and significant question must be raised regarding the purpose in his mind of his behavior. I am not able to state whether or not [McKinney's] behavior with its probable outcome was an intended behavior. . . . He did behaviorally respond to intense emotions and as of that time ...

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