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State of Wisconsin v. Jeffrey C. Denny
Date: 03-05-2017
Case Number: 2015AP202-CR
Judge: ANNETTE KINGSLAND ZIEGLER
Court: SUPREME COURT OF WISCONSIN
Plaintiff's Attorney:
Misha Tseytlin, solicitor general,
Daniel P Lennington, deputy solicitor general, Donald V. Latorraca, assistant attorney general, and Brad D. Schimel attorney general
Defendant's Attorney:
Keith A. Findley, and Wisconsin Innocence Project, with Steven D. Gunder, assistant state public defender.
Description:
MoreLaw Receptionist Services
On November 15, 1982, a jury found Denny and his
brother Kent guilty of the murder of Christopher Mohr ("Mohr").
Denny was sentenced to life imprisonment. Over three decades
later, in 2014, Denny filed a motion claiming innocence and
requesting forensic DNA testing of evidence taken from the scene
of Mohr's murder. Denny asked the circuit court to order that
the testing occur at public expense, or, in the alternative, at
Denny's own expense.
¶3 Whether, and the conditions under which, a court will
order such postconviction forensic DNA testing are questions
governed by Wis. Stat. § 974.07 ("Motion for postconviction
deoxyribonucleic acid testing of certain evidence.").
Interpreting this statute, the circuit court below concluded
that Denny was not entitled to testing either at public or at
private expense. The court of appeals disagreed. We are asked
to determine whether Denny has met the statutory requirements
for forensic DNA testing of the evidence he has identified.
¶4 We conclude that the circuit court did not err in
denying Denny's postconviction motion for forensic DNA testing
of certain evidence. Consequently, we reverse the decision of
the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶5 On January 26, 1982, police discovered Mohr's body in
a room on the second floor of a house in Grafton, Wisconsin. On
June 25, 1982, a criminal complaint was filed against Denny in
Ozaukee County circuit court charging him as party to the crime
of the first-degree murder of Mohr, contrary to Wis. Stat.
§ 940.01 (1981-82) and Wis. Stat. § 939.05 (1981-82). Denny's
brother Kent was also charged.
¶6 From November 9 to November 15, 1982, Denny and Kent
were tried jointly before a jury.3 At trial, the State presented
its case against Denny and Kent in the following general4 manner.
¶7 Jonathan Leatherman ("Leatherman") testified that on
January 26, 1982, at around 9:30 a.m., he spoke to Mohr on the
phone about traveling to Mohr's house to smoke marijuana.
Around 10:45 or 10:50 a.m., Leatherman began walking to Mohr's
house, arriving there minutes later. Leatherman entered the
house, went upstairs, and upon opening the door to "[Mohr's]
room" saw Mohr's body on the floor. Leatherman called the
"rescue squad" and reported a suicide. He then returned to
Mohr's room to retrieve a quarter pound of marijuana which he
suspected was in Mohr's room in order to "save [Mohr] from
trouble," but ultimately went outside to wait for the police
empty-handed.
¶8 Later that day, Leatherman received a call from Kent.
When asked when he had last spoken to Kent prior to that call,
Leatherman replied, "I'm not sure, maybe a week, I'm not sure,
maybe more." Kent asked Leatherman if he "knew to [sic] get any
pot" and after Leatherman said he did not, Kent "said what about
[Mohr]," and Leatherman informed Kent that Mohr had killed
himself. Kent asked Leatherman if he wanted to "stop over"
later that day, and Leatherman did so. At Kent's house,
Leatherman had a conversation with Kent and Denny about
Leatherman's experiences that day.
¶9 Gary Helm ("Helm") testified that he worked for the
Grafton Street Department and was also part of the Grafton
rescue squad. On January 26, 1982, at around 10:55 a.m. to
11:00 a.m., Helm was "picking up garbage" as part of his
employment when he received notification of an attempted
suicide. Helm traveled to the reported address where he met a
police officer outside of Mohr's house. There, "a fella in
front of the house . . . was yelling help him, please help him,
I don't believe he did it." According to Helm's testimony, Helm
and the officer went inside and up to Mohr's room. Helm tried
but failed to obtain a pulse reading.
¶10 Daniel Palkovic ("Officer Palkovic") of the Grafton
Police Department testified that he was dispatched to Mohr's
residence on January 26, 1982, and that he accompanied Helm to
Mohr's room. Officer Palkovic described a number of items
retrieved from the scene of Mohr's murder, from areas nearby, or
from Mohr's body at the autopsy. These items were introduced as
exhibits at trial and included: (1) a jacket found in Mohr's
room which appeared to have blood on it; (2) a torn shirt
removed from Mohr which had blood on it; (3) jeans removed from
Mohr which had blood on them; (4) socks removed from Mohr which
had blood on them; (5) "under briefs" removed from Mohr which
had blood on them; (6) a hat found in Mohr's room which had
blood on it; (7) gloves found in Mohr's room; (8) a yellow towel
taken from the hallway directly outside of Mohr's room which had
blood on it; (9) samples of Mohr's head and pubic hair; (10)
hair that had been "clenched in . . . Mohr's left hand"; (11)
hair located between the fingers of Mohr's right hand, which was
"closed somewhat, but . . . not fully clenched"; (12) hair stuck
to Mohr's chin and neck by dried blood; (13) loose hair "taken
from [Mohr's] mouth area" which "[a]ppeared to be" "stuck" there
by "a combination of dried blood and possibly saliva"; (14) hair
at least apparently stuck to Mohr's pants by dried blood; (15)
hair, "a possible seed of some type," and some glass fragments
stuck to Mohr's skin and shirt in his "upper chest area"; (16)
the "top or main portion of a bong pipe" found in Mohr's room
which "appear[ed] to have been shattered or broken on one end"
and which appeared to have blood on its "tube"; (17) the "base
portion" of the bong pipe, which was found in Mohr's room; (18)
the "bowl portion" of the bong pipe, which was found in Mohr's
room and which had blood on it; (19) "fragments of . . . maroon
plexiglass material, similar to the top portion of the bong
No. 2015AP202-CR
6
pipe," found "scattered about" Mohr's room in "[r]oughly the
immediate area of [Mohr's] body itself" and which had blood on
them; (20) "pieces of the maroon plexiglass portion of the bong
pipe and . . . a metallic[-]type of rod which was found to be
located on the floor under [Mohr] after his body was moved"
which had blood on them; (21) a "rubber-type of grommet" used
with the bong pipe and found "just inside of the doorway leading
into" Mohr's room; (22) a "glass drinking container" which was
found on the floor next to an ice cube, had blood on it, and had
"a small amount of orange liquid at the bottom of the glass";
(23) ice cubes (by the time of trial, water) collected from
various areas of Mohr's room and observed around 11:30 a.m.; and
(24) a phone directory found in the hallway on the second floor
of Mohr's house with a "footwear impression on the cover" which
appeared to be caused at least in part by blood. On cross
examination, Officer Palkovic conceded that the "shoe bottom
pattern" imprinted on the phone book was a common one.
¶11 There were additional items discussed during Officer
Palkovic's testimony which were not, ultimately, received by the
court: (1) a yellow stool which was taken from a room of Mohr's
house different from the room Mohr was found in and which
appeared to have blood on it; (2) a "small water faucet-type
screen" stuck to Mohr's shirt by dried blood, similar to other
screens found in Mohr's room; (3) "several screens, safety pins
and some screws and some thumb tacks" which "gave the
appearance, were attached to the back of the victim's neck and
head area, the hair area itself" by "blood which had
No. 2015AP202-CR
7
coagulated"; (4) certain "fragments or pieces of the plexiglass
portion of the bong pipe" found "on the floor of . . . [Mohr's]
bedroom alongside" Mohr's body; (5) scissors found in Mohr's
room; (6) a red disposable lighter found in Mohr's room under
Mohr's right shoulder which appeared to have blood on it; and
(7) blood samples removed from an overturned "metal lawn chair"
found in Mohr's room.
¶12 Samples of the defendants' head and pubic hair taken
directly from the defendants were also introduced.
¶13 Ozaukee County Deputy Coroner Ruth Heiser testified
that on January 26, 1982, she was dispatched to Mohr's house and
that she pronounced Mohr dead at 12:05 p.m. that day.
¶14 Dr. Hellen Young ("Dr. Young"), who performed an
autopsy of Mohr, discussed the nature and extent of the wounds
on Mohr's body and her opinion of the cause of Mohr's death.
According to Dr. Young, Mohr's death was caused by "massive
hemorrhage due to multiple incised wounds." Dr. Young described
over 50 wounds on Mohr's body and opined that at least some of
these wounds were caused by a knife. One wound in particular
was a "good-sized gaping wound" in Mohr's "back directly over
the area of where the heart would be reflected" requiring "at
least two to three" "gashes." Mohr's heart, however, was
"intact within [his] body." Mohr had a "large gaping wound" on
his throat. He had two wounds in his stomach "made by one stab
wound" which Mohr would have sustained "early in the series of
wounds that were received." Dr. Young further discussed
injuries to Mohr's head caused by "blunt trauma" and agreed that
No. 2015AP202-CR
8
at least a portion of the bong pipe introduced into evidence
could have produced such injuries.
¶15 The "meat and potatoes of the case," in the State's
words, were the collection of witnesses called by the State who
testified as to numerous statements made by Denny and Kent about
Mohr's murder.
¶16 Trent Denny ("Trent"), Denny and Kent's brother,
testified that "two, three days" after Trent was released from
the Ozaukee County Jail on February 21, 1982, Kent told Trent
that Kent had killed Mohr. On a separate occasion ("I think it
was the day after I talked to Kent," according to Trent), Trent
asked Kent "if he really did it," and Kent replied "yes." Two
or three days after that, Trent asked Denny "if it was true."
Denny "asked [Trent] why did Kent tell[?]" After Trent told
Denny that "Kent told [Trent] he killed" Mohr, Denny "looked at
[Trent] like he was mad." Trent offered his assistance to
Denny. Denny told Trent that Denny and Kent had stabbed Mohr.
Specifically, Kent asked Mohr "how he felt," then stabbed Mohr
once in the stomach, then asked Mohr "how he felt now," then
gave the knife to Denny, after which Denny stabbed Mohr. Mohr
"was coming after [Denny] while [Denny] was stabbing him." Kent
"hit [Mohr] over the head with the bong." On yet another
occasion, Trent again asked Kent "if it was true," and Kent
affirmed that it was.
¶17 "Maybe two, three" weeks after Trent spoke with Denny,
Trent had a conversation with Kent and Denny. They told Trent
"we had to get rid of the clothes." That night, Kent, Trent,
No. 2015AP202-CR
9
and Lori Jacque ("Jacque") drove to a cemetery. Kent got out of
the car and went to the cemetery. Five minutes later, he
returned carrying a paper bag and the three drove away. Kent
"said something that there was blood on the clothes," and "asked
[Trent and Jacque] if [they] could smell it." At some point
while in the car that night, Kent pulled a shirt out of the bag
and Trent saw a "stain" on it. On cross-examination, Trent
agreed that he did not "really know what was in [the] bag," and
instead "just assumed it was the clothes." Eventually the three
drove to Jacque's house, Jacque retrieved a plastic bag, and
Kent put the paper bag into the plastic bag. The three then
drove to a dump in either "Port or Fredonia," and Kent "shot the
bag into the dump."
¶18 On another date, behind Trent's house, Denny showed
Trent what Denny said was a knife. Trent saw the handle, but
not the blade. Finally, a separate time Trent asked Kent and
Denny together "if they did it," and "[t]hey told [Trent] yes."
¶19 Jacque testified that on February 20, 1982, while at a
party in "the Denny room" (referred to later as Kent's bedroom),
Kent "looked very upset" and told Jacque that he had killed
Mohr. Later that night, Kent indicated to Jacque that "[h]e
wanted to go get the clothing back from the graveyard." "About
a week after that," Kent again spoke with Jacque about the
clothing. A "couple weeks after" the initial conversation,
according to Jacque, Jacque, Trent, and Kent drove to a
"graveyard." Kent exited the car and came back "with a bundle
of clothes under his arm." Back in the car, Kent held up a
No. 2015AP202-CR
10
shirt. The three stopped at Jacque's house, where they
retrieved a paper bag. They then drove to the town dump in the
"Town of Port." Kent had placed the clothing in the bag. He
exited the car and walked to the dump. Jacque and Trent "drove
down the road and turned around and came back and picked him
up." That night, Kent said that he was "glad to get rid of the
clothes."
¶20 On another date, Jacque was in a car with Kent and
Denny. She heard Kent and Denny have a conversation about how
"they forgot the tennis shoes." On another date, "Kent had said
that he wanted to turn himself in" because "[i]t was just
getting to be too much." Kent was crying at the time. On
another date, in Kent's room, Denny "said something about a
scratch on his leg," namely "[t]hat that was from where [Mohr]
had scratched him." Jacque did not actually see any scratches.
Finally, when asked "Were there any other conversations that you
remember?" Jacque replied, "Well, several times there was
things said about it." However, Jacque did not "remember any of
those in any specifics besides what [she had] already stated."
¶21 On cross-examination, Jacque testified that on
separate occasions Kent had told her, with regard to the reason
for Mohr's murder, that "somebody put a gun to his head" and
that "he did it to prove it to his brother." Jacque was also
asked "on another occasion did he do it to say it was because it
was either him or [Mohr]?", and she replied "Yes, I think I
heard something like that done."
No. 2015AP202-CR
11
¶22 Diane Hansen ("Hansen") testified that "approximately
a week after" Mohr's death, at the Sundance Tavern, Kent told
Hansen that "he killed [Mohr]," and then, after Hansen started
crying, that "he was only kidding." On cross-examination Hansen
agreed that Kent also said "do you think I'd do something like
that?" A "[c]ouple weeks later," Kent told Hansen that he went
to Mohr's house, that Mohr was "standin' by the fish tank and
[Kent] stabbed" Mohr in the stomach, then left the room and
"[g]ot sick."
¶23 "[A] long time after that," Hansen asked Kent "if
there was any truth to the rumor that [Mohr's] heart was cut
out," and Kent told Hansen "[y]es." Hansen also testified, in
response to the question of whether Kent had, at any time, told
Hansen "that he saw anyone walking up the street as he got out
of [Mohr's] house," that "[Kent] said he thought he
saw . . . Leatherman," specifically "[o]n a road behind a
garbage truck." On cross-examination, Hansen testified that in
her "very first" conversation with Kent about Mohr's death, Kent
told Hansen that Leatherman "had found [Mohr] and [Mohr] was
dead," and that "it was an accidental death." On re-direct,
Hansen explained that the conversation was the "same day" as
Mohr's death.
¶24 Lori Ann Jastor Commons ("Commons") testified that,
while at a party at Kent's house the night before Trent "got out
of jail," she heard Kent say:
[Mohr] was at his fish tank and Kent went up to him and stabbed him and asked him how he felt,
No. 2015AP202-CR
12
and . . . [Mohr] replied that he felt all right and that he proceeded to stab him one more time and he had gotten sick and run into the bathroom and [Denny] had taken over.
At that point Denny "just stabbed him." Commons clarified that
Kent told Commons that he stabbed Mohr "[i]n his side."
¶25 Commons also discussed a conversation she heard that
occurred "approximately three weeks after the murder" at the
"Sundance Bar in Port":
[Kent] was talking to a friend of mine, . . . Hansen, when I came out of the bathroom, and [Hansen] was crying and I went up to her to see what was wrong and Kent was talking to her and said that he had to do it, otherwise it would have been him.
¶26 Robin Doyle ("Doyle") testified that she asked Kent
"how, out of curiosity if he had killed" Mohr. Kent said "[y]es
he did." Kent also told Doyle that "he had told everybody, that
he ever told, something different so that the stories wouldn't
match up."
¶27 Kent's coworker, Carl Winker ("Winker"), testified
that at the end of April 1982 Kent told him that he "knew the
guy" who killed, in the words of the State, "a boy in Grafton."
Kent told Winker that "the guy started stabbin' him and he just
kept doin' it," that "the guy" "liked it, got into it," and that
"the guy's heart was cut out." Kent also told Winker that the
killing "was for drug money." Some time later, Kent told Winker
that he would not be coming to work anymore. When asked why,
Kent stated it was because he was going to jail. When asked why
he was going to jail, Kent said "because of that guy that got
No. 2015AP202-CR
13
killed." Winker asked Kent, "[W]hy, do you know something about
it?" Kent replied, "[N]o, I'm the guy that did it." On another
occasion, Kent told Winker "there was a coat and a knife and a
dump in Sheboygan and the coat was full of blood."
¶28 Steven Hansen ("Steve H.") testified that in early
March 1982 Denny told Steve H. that "[Denny] and Kent had
killed" Mohr. Denny told Steve H. that Denny and Kent went to
Mohr's bedroom, that Kent "pulled out a knife
and . . . proceeded to stab" Mohr. Steve H. also testified that
he remembered telling Officer Palkovic that Denny told Steve H.
the following:
Mohr was facing the window when the Denny boys were in the bedroom and Kent pulled a knife out and looked at [Mohr], and looked at . . . Denny and then . . . Denny nodded his head and Kent started stabbing [Mohr] in the stomach[.]
. . .
Mohr would not fall, but subsequently he did fall to the floor and . . . [Denny] kicked . . . Mohr[.]
. . .
[Denny] and Kent . . . walked out of the house and they didn't think anyone saw them[.]
. . .
[Either Kent or Denny told Steve H. that] Kent and [Denny] might have seen . . . Leatherman when they
No. 2015AP202-CR
14
were leaving the . . . Mohr residence the day of the murder[.]5
¶29 Patricia Robran ("Robran") testified that in either
March or April 1982 she was present in the basement of her
parents' house with Denny. Denny was crying. Eventually Denny
told Robran "that him and . . . Kent were the ones who killed
that one boy in Grafton," that "him and Kent stabbed him and
they hit him" with a bong, that "there was no reason for it and
alls I got was a quarter pound [of marijuana] out of it." Denny
informed Robran that "Kent stabbed [Mohr] first and he handed
[Denny] the knife and Kent told him to continue what he was
doing until he got back, so [Denny] did, and he didn't remember
if he did it five or ten or fifteen times." Robran added that
Denny told her that before the stabbing occurred, "Kent had
asked [Mohr] how he was feeling, he said he was feeling fine,
and then Kent stabbed him and asked him how he'd feel now. They
just kept doin' it."
¶30 Daniel Johansen ("Johansen"), an inmate at the Ozaukee
County Jail, testified that Denny told him about Mohr's murder.
Johansen stated that Denny told him:
[Denny] and Kent went over to . . . Mohr's house, and I'm not sure, but it was either the, that [Mohr] owed Kent money or they were going to pick up some pot, and [Denny] . . . went out of the room and that [Mohr] and Kent were in and he said all of a sudden he heard how 5 These statements were read to Steve H. by the State, and Steve H. simply assented to having told them to Officer Palkovic. On cross-examination, Steve H. agreed that he did not "really remember how these statements which [the State] ha[d] read to [him] got to Officer Palkovic or into his report."
No. 2015AP202-CR
15
does this feel, and he came back in the room and Kent had stabbed him in the stomach.
. . .
[T]hen he said that Kent just started stabbing him and then he went to the bathroom and looked in the mirror at himself because he couldn't believe it.
. . .
[Denny] . . . hit [Mohr] over the head with a bong and kicked him a couple times.
. . .
[Denny] said the shoes he, he took 'em over to some sewage plant in here, in Port or some sewage plant around here.
. . .
[H]e . . . threw 'them in.
¶31 Tod Trierweiler ("Trierweiler") testified that in late
March of 1982 he was in the Denny house with Russ Schram
("Schram"), Tammy Whitaker ("Whitaker"), Kent, and Denny.
Trierweiler left with Denny in a car.6 They stopped at a gas
station in Grafton. Denny asked for and obtained the keys to
Trierweiler's car and put a brown bag "rolled about half-way"
into the trunk of the car. Trierweiler drove Denny to the
Sundance Tavern, then went to his girlfriend Cindy Otto's
("Otto") house, where he told Otto "about the keys." Later,
Trierweiler found a bag that "looked like it was half-way down
and it was rolled up" in his car and opened it. Inside were a
6 It is unclear from the testimony whether, in Trierweiler's account, other individuals accompanied the two.
No. 2015AP202-CR
16
pair of tennis shoes and a pair of brown loafers. Trierweiler
wore the tennis shoes for about three months. As to the
loafers, Trierweiler testified, "[M]y girlfriend's brother came
up from Texas with no pairs of shoes . . . and I guess he took
'em." Eventually Trierweiler gave the tennis shoes to Sergeant
Fred Goetz ("Sergeant Goetz"), who was "looking for the shoes."
Trierweiler stated on cross-examination that when he retrieved
the tennis shoes from his car he examined them and there was no
blood on them. For his part, Sergeant Goetz testified as to
receiving the shoes from Trierweiler, and as to the chain of
custody following his receipt of the shoes. Sergeant Goetz
agreed that Trierweiler had told him that "he could not state
for certain if [the shoes] were the ones that . . . Denny had
placed in his trunk." These shoes were admitted into evidence.
¶32 Otto testified that she and Trierweiler had a
conversation about the keys, that she and Trierweiler discovered
a "brown grocery bag" which contained two pairs of shoes in the
trunk of Trierweiler's car, that Trierweiler wore the tennis
shoes, and that her brother took the second pair of shoes, which
she described as "suede tied shoes." Otto also discussed an
occasion when Denny asked Trierweiler "if he could go back to
look at [Trierweiler's] house to look in or at [Trierweiler's]
car." Trierweiler refused at the time because he was late to
drop Otto off at home. Otto also discussed how Trierweiler came
to give the tennis shoes to Sergeant Goetz.
¶33 Whitaker testified that she was at a party in late
March 1982 with Kent, Denny, Schram and Trierweiler at the Denny
No. 2015AP202-CR
17
house. At one point Schram, Trierweiler, and Whitaker went
outside. Schram "put the shoes in, on the bag, I should say,
into the back seat [sic]" of a car and told Whitaker "those were
the murder shoes." Denny then exited the house and the four
went to a gas station. At the gas station, Schram and Denny
"put the bag in the trunk." Whitaker described the bag as a
"rolled," "brown paper bag."
¶34 Whitaker further explained that she was Denny's
girlfriend of about eight months and testified to two accounts
of Mohr's murder Denny had related to her, though she prefaced
her testimony with the statement that her account was "a rough
estimate of what [she] remember[ed]." First, Denny told
Whitaker "[t]hat . . . Leatherman and [Denny] went over
to . . . Mohr's house and [Leatherman] got in a fight with
[Mohr] and started stabbing him, and then . . . [Leatherman]
asked [Denny] to help 'im so [Denny] hit him." Second, Denny
told Whitaker "[t]hat him and Kent went over to . . . Mohr's
house and then they went up there . . . [and] Kent started
stabbin' him and then [Denny] went into the bathroom, looked in
the mirror and said my God, what'd I get myself into." Denny
also told Whitaker that "they got" a quarter pound of "[p]ot"
out of the murder.
¶35 Schram testified to events that occurred at a party in
late March of 1982 at the Denny house. Schram, Trierweiler,
Whitaker, Kent, and Denny were at the party. Schram stated, "We
were gonna leave" and that Denny "took a bag out of the closet
and took it with us." Schram described the bag as a "[r]egular
No. 2015AP202-CR
18
brown paper bag." Denny put the bag in the back seat of a car.
At some time before Denny placed the bag in the car, he told
Schram that the bag contained "[m]urder shoes." Schram
testified that although he did not "exactly" remember who
brought the shoes out to the car, he was "pretty sure it was"
Denny. Schram continued that he and at least some of the others
drove to a gas station, where Denny asked Trierweiler for the
keys to the trunk of his car. Trierweiler gave Denny the keys
and Denny "put the bag in there." The bag was "rolled up so you
could carry it with a handle like." The parties eventually
"dropped [Denny] off at a bar." Afterwards, Denny contacted
Schram a "couple times, saying to get it out of the car."
Schram told Denny that "he knew where [Trierweiler] lived and
that he could get it from him anytime."
¶36 On another occasion, Schram, Kent, Denny, Whitaker,
and Jacque were together in Grafton. Denny told Schram, "you'd
be surprised how long it took a person to die." Another time
"between March and April," according to Schram, Denny "was mad
at Trent and . . . said that he'd take him out and put an arrow
through him" because of "something about testifying."
Additionally, on September 1, Schram received a call from Denny
"from jail." Denny told Schram "[t]o not say anything about the
shoes because [Schram would] be an accessory" to "[m]urder."
¶37 The State called Jeffrey Nilsson ("Nilsson"), who
previously worked for the Wisconsin State Crime Laboratory and
who analyzed blood and hair from the crime scene. Certain of
the blood tested came from an individual of the same
No. 2015AP202-CR
19
international blood group to which Mohr belonged. Other testing
produced inconclusive results or was not possible. Nilsson also
examined "over two hundred hairs" and only two were inconsistent
with the samples taken from Mohr when analyzed by "microscopic
comparison." These two hairs were also not consistent with
samples taken from Denny and Kent. The hairs were retrieved
from a sterile sheet used to wrap Mohr's body and from Mohr's
shirt. These hairs were admitted into evidence.
¶38 Arthur Varriale of the State Crime Lab testified that
he examined the phone book found in Mohr's house and "was able
to detect the presence of human blood stains upon" the book. He
was not able to detect any blood on the shoes allegedly worn by
Trierweiler. Charles Hannah ("Hannah") of the State Crime Lab,
who compared the tread on one of the shoes allegedly recovered
from Trierweiler to the impression on the phone book, also
testified. Hannah explained that while the pattern on the
bottom of the shoe was the same pattern as the incomplete
impression on the phone book, he could not determine whether the
shoe in fact made the impression.
¶39 Neither Kent nor Denny testified at trial. Denny's
attorney did not call any witnesses to testify. Kent's attorney
attempted to call several witnesses, but ultimately obtained
meaningful testimony from only one: Gordon Denny ("Gordon"), the
father of Kent, Trent, and Denny. Gordon testified that his
sons had been competing with each other "all their lives"; that
Trent and Kent had a poor relationship; that Kent was sometimes
No. 2015AP202-CR
20
a practical joker, with some jokes being "quite elaborate"; and
that Kent had "a habit of fabulation" or of "tell[ing] stories."
¶40 During closing arguments, the State pointed to, inter
alia, the dozens of inculpatory statements allegedly made by
Kent and Denny to various of the witnesses who had testified,
the evidence relating to the alleged destruction of clothing,
the episode in which Denny allegedly showed Trent the knife, and
the evidence relating to the shoes allegedly worn by
Trierweiler, including Hannah's opinion as to the similarity
between the impression on the phone book and the pattern on one
of those shoes. The attorneys for Kent and Denny, in turn,
attacked the State's witnesses and the State's physical evidence
on numerous grounds, arguing that the State had not met its
burden of proving their clients guilty beyond a reasonable
doubt. To take one example, Denny's attorney characterized some
of the State's evidence as consisting of:
[S]tatements which in my view have been made by unreliable, incredible braggarts, liars, to equal[ly] unreliable persons, who in my view, are drug users, possibly alcoholics, certainly drunkards, people who, themselves admitted on that witness stand to being people who exaggerate, who lie, who make up stories, who had faulty memories, who had to have their recollections refreshed by police.
¶41 According to the record, on November 15, 1982, the
jury departed the courtroom to deliberate at 4:56 p.m. At
10:49 p.m. the court reconvened and the jury's verdict was read.
The jury found Denny (and Kent) guilty of first-degree murder.
No. 2015AP202-CR
21
On November 16, 1982, the circuit court sentenced Denny to life
imprisonment and a judgment of conviction was filed.
¶42 On April 14, 1983, Denny filed a motion for
postconviction relief. On July 1, 1983, an order was filed
denying that motion. On July 8, 1983, Denny filed a notice of
appeal. On December 5, 1984, the court of appeals affirmed
Denny's conviction. State v. Denny, No. 1983AP1311-CR,
unpublished slip op. (Wis. Ct. App. Dec. 5, 1984). On
February 5, 1985, this court denied review of that appeal.
¶43 Since that time, Denny has unsuccessfully attempted to
upset his conviction on a number of occasions. See Denny v.
Gudmanson, 252 F.3d 896, 898-99 (7th Cir. 2001).
¶44 On May 1, 2014, Denny filed a motion for
postconviction forensic DNA testing under Wis. Stat. § 974.07.
On August 4, 2014, he supplemented the motion.7 Denny claimed he
was innocent and sought to prove his innocence through forensic
DNA testing of various items of evidence related to Mohr's
murder and comparison of "any genetic profile found on the
evidence with the DNA profiles of offenders in" state and
federal DNA databanks. The items Denny sought to test included:
(1) pieces of the bong pipe; (2) hair found on different areas
of Mohr's body and on the sterile sheet used to wrap Mohr's
body; (3) the yellow towel; (4) blood removed from the metal
chair; (5) articles of Mohr's clothing; (6) the hat; (7) the 7 There appear to be related filings in the record, but Denny directs us to these two.
No. 2015AP202-CR
22
gloves; (8) the lighter; (9) the screens; (10) the glass cup;
(11) "facial breathing masks found at the scene," "one of which
appeared to be quite heavily soiled," according to a
supplemental report of the Grafton Police Department authored by
Officer Palkovic; and (12) Mohr's hair. Denny theorized that
the perpetrator's DNA was left at the crime scene, and that
testing could produce several types of results supportive of
Denny's claim: (1) "testing on many or most of the items [could]
exclude[] [Denny]"; (2) "the same unknown third-party profile
[could be] found on multiple items"; and (3) "DNA results on one
or more items could exclude [Denny] and match a convicted
offender in the state or federal databank." Denny claimed he
was entitled to forensic DNA testing at public expense, or, in
the alternative, at his own expense.
¶45 On January 2, 2015, the circuit court denied Denny's
motion. On January 22, 2015, Denny filed a notice of appeal.
On March 23, 2016, the court of appeals reversed the circuit
court's order denying Denny's motion and remanded the case for
forensic DNA testing at private or public expense. Denny, 368
Wis. 2d 363, ¶¶1, 64. The court of appeals concluded that
Denny's motion met the pertinent requirements of Wis. Stat.
§ 974.07. See id.8 On April 21, 2016, the State filed a 8 Judge Hagedorn concurred in part and dissented in part, concluding that while Denny was entitled to testing at private expense, the circuit court's determination regarding testing at public expense should not be disturbed. State v. Denny, 2016 WI App 27, ¶89, 368 Wis. 2d 363, 878 N.W.2d 679 (Hagedorn, J., concurring in part and dissenting in part).
No. 2015AP202-CR
23
petition for review in this court. On June 15, 2016, this court
granted the petition.
II. STANDARD OF REVIEW
¶46 In this case we interpret and apply Wis. Stat.
§ 974.07. "The interpretation and application of a statute
present questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court." State v. Alger, 2015 WI 3, ¶21, 360
Wis. 2d 193, 858 N.W.2d 346 (citing State v. Ziegler, 2012 WI
73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238).
[W]e have repeatedly held that statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted)
(quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211,
612 N.W.2d 659). The standard of review applicable to the
circuit court's denial of Denny's motion will be discussed
below.
III. ANALYSIS
¶47 Our analysis proceeds in three basic parts. First, we
provide an overview of the postconviction forensic DNA testing
statute, Wis. Stat. § 974.07. Second, we discuss State v.
Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, our 2005
No. 2015AP202-CR
24
decision interpreting portions of that statute, and overrule a
part of Moran's interpretation of Wis. Stat. § 974.07(6).
Finally, we examine whether the circuit court erred in denying
Denny's postconviction motion for forensic DNA testing of
certain evidence, and conclude that it did not.
A. Wisconsin Stat. § 974.07
¶48 We begin with an overview of Wis. Stat. § 974.07,
"Motion for postconviction deoxyribonucleic acid testing of
certain evidence." Wis. Stat. § 974.07. The statute is
composed of 13 subsections, but the core of the testing regime
is contained in subsections (2), (6), (7), (9)-(10), and (12).
Respectively, these subsections govern: making a motion for
postconviction forensic DNA testing; the sharing of pertinent
information and evidence between the district attorney and the
movant; the circuit court's decision on the movant's motion;
disposition of the case; and payment of the costs of testing.
¶49 The process begins in sub. (2) when one of a few types
of persons entitled to do so——here, a person "convicted of a
crime"——"make[s] a motion [in the proper court] for an order
requiring forensic [DNA] testing of evidence". Wis. Stat.
§ 974.07(2).9 Critical to an understanding of the entire statute
is that the framework functions to dispose of a
"motion . . . for an order." Id. (emphases added).
9 Subsection (1) contains definitions. See Wis. Stat. § 974.07(1).
No. 2015AP202-CR
25
Importantly, the evidence sought to be tested must meet three
requirements under sub. (2):
(a) The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect.
(b) The evidence is in the actual or constructive possession of a government agency.
(c) The evidence has not previously been subjected to forensic [DNA] testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.
Wis. Stat. § 974.07(2)(a)-(c).
¶50 Next, sub. (6) enables "the movant" to obtain access
to certain information and evidence possessed by "the district
attorney," and vice versa.10 Specifically:
(a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make
10 Subsections (3) and (4) involve notice requirements aimed at apprising the appropriate district attorney's office and the victim of the motion proceedings and giving the district attorney the chance to "respond" to the motion. See Wis. Stat. § 974.07(3)-(4).
Subsection (5) requires the district attorney, upon receipt of the motion or notice from a court of the motion, to "take all actions necessary to ensure that all biological material that was collected in connection with the investigation or prosecution of the case and that remains in the actual or constructive custody of a government agency is preserved pending completion of the proceedings under this section." Wis. Stat. § 974.07(5).
No. 2015AP202-CR
26
available to the movant or his or her attorney the following material:
1. Findings based on testing of biological materials.
2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.
(b) Upon demand the movant or his or her attorney shall disclose to the district attorney whether biological material has been tested and shall make available to the district attorney the following material:
1. Findings based on testing of biological materials.
2. The movant's biological specimen.
Wis. Stat. § 974.07(6)(a)-(b). This information and material
must be "relevant to the movant's claim at issue in the motion
made under sub. (2)." § 974.07(6)(d). Subsection (6) also
enables the court to "impose reasonable conditions on
availability of material requested under pars. (a) 2. and (b) 2.
in order to protect the integrity of the evidence."
§ 974.07(6)(c).
¶51 Subsection (7) governs the circuit court's decision on
the movant's motion. Subsection (7) sets forth two means by
which a movant may obtain forensic DNA testing under the
statute: first, the court "shall order" testing if the four
requirements of Wis. Stat. § 974.07(7)(a) "apply"; second, the
court "may order" testing if the three requirements of
§ 974.07(7)(b) "apply." § 974.07(7)(a)-(b).
No. 2015AP202-CR
27
¶52 Both avenues to testing require that "[t]he evidence
to be tested meets the conditions under sub. (2)(a) to (c)" (set
forth above). Wis. Stat. § 974.07(7)(a)3., (b)2. Both also
require that the "chain of custody of the evidence to be tested
establishes that the evidence has not been tampered with,
replaced, or altered in any material respect or, if the chain of
custody does not establish the integrity of the evidence, the
testing itself can establish the integrity of the evidence."
§ 974.07(7)(a)4., (b)3.
¶53 The two sets of requirements differ in two crucial
respects. First, a court "may order" testing if, among other
things:
It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under s. 971.17, or the disposition under ch. 938, would have been more favorable to the movant if the results of [DNA] testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.
Wis. Stat. § 974.07(7)(b)1. In contrast, a court "shall order"
testing if, among other things:
It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory [DNA] testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.
No. 2015AP202-CR
28
§ 974.07(7)(a)2.
¶54 Second, the mandatory testing scheme includes an
additional requirement: "[t]he movant [must] claim[] that he or
she is innocent of the offense at issue in the motion under sub.
(2)." Wis. Stat. § 974.07(7)(a)1.
¶55 Subsections (9) and (10) govern disposition of the
case following the circuit court's decision under sub. (7) and
any testing that occurs.11 Under sub. (9), if the court does not
order forensic DNA testing, "or if the results of forensic [DNA]
testing ordered under this section are not supportive of the
movant's claim, the court shall determine the disposition of the
evidence specified in the motion subject to" certain
particulars. Wis. Stat. § 974.07(9)(a)-(b).
¶56 Under sub. (10)(a):
If the results of forensic [DNA] testing ordered under this section support the movant's claim, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. After the hearing, and based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice . . . .
Wis. Stat. § 974.07(10)(a). Subsection (10)(a) provides
examples of orders the court may enter, such as "[a]n order
11 Subsection (8) authorizes the court to "impose reasonable conditions on any testing ordered under this section in order to protect the integrity of the evidence and the testing process." Wis. Stat. § 974.07(8). The subsection also discusses where testing may take place. Id.
No. 2015AP202-CR
29
granting the movant a new trial or fact-finding hearing."
§ 974.07(10)(a)2.
¶57 Finally, sub. (12) pertains to payment of the costs of
testing.12 First, "[t]he court may order a movant to pay the
costs of any testing ordered by the court under this section if
the court determines that the movant is not indigent." Wis.
Stat. § 974.07(12)(a). Indigency is defined via guidelines set
forth in § 974.07(12)(b). Second, "[t]he state crime
laboratories shall pay for testing ordered under this section
and performed by a facility other than the state crime
laboratories if the court does not order the movant to pay for
the testing." § 974.07(12)(c).13
¶58 Having set forth the relevant provisions of Wis. Stat.
§ 974.07, we now discuss Moran.
B. State v. Moran
12 Subsection (10)(b) exempts a court ordering a new trial under (10)(a) from the necessity of "making the findings specified in s. 805.15 (3)(a) and (b)." Wis. Stat. § 974.07(10)(b). Wisconsin Stat. § 805.15(3) relates to new trials "ordered on the grounds of newly-discovered evidence." Wis. Stat. § 805.15(3).
Subsection (11) requires a court to "refer the movant to the state public defender for determination of indigency and appointment of counsel under s. 977.05(4)(j)" under specified circumstances. Wis. Stat. § 974.07(11).
13 The final subsection of the statute, sub. (13), explains that "[a]n appeal may be taken from an order entered under this section as from a final judgment." Wis. Stat. § 974.07(13).
No. 2015AP202-CR
30
¶59 As shown above, whether a movant may obtain
postconviction forensic DNA testing of evidence depends on,
among other things, whether one of the two "reasonably probable"
formulations set forth in Wis. Stat. § 974.07(7) applies in the
case. Before this court, Denny argues that "[i]t is reasonably
probable that [he] would not have been prosecuted . . . [or]
convicted" of his crime "if exculpatory [DNA] testing results
had been available before the prosecution . . . [or]
conviction." § 974.07(7)(a)2.14 As we explain in the next
section, this contention fails.
¶60 But we must first discuss our decision in Moran
because Denny claims that under Moran he is entitled to forensic
DNA testing under Wis. Stat. § 974.07(6) even if
§ 974.07(7)(a)2. remains unmet. While we agree that Moran
supports this claim, we overrule this interpretation of
§ 974.07(6).
¶61 The movant in Moran——who had been convicted of crimes
relating to an incident during which he allegedly injured two
individuals with a knife——sought postconviction forensic DNA
testing of certain blood samples pursuant to Wis. Stat.
§ 974.07. Moran, 284 Wis. 2d 24, ¶¶5-20, 22-24. Before
assessing the merits of the case, we explained:
In their briefs, the parties focused our attention almost exclusively on § 974.07(7), 14 Denny does not develop an argument suggesting that testing under Wis. Stat. § 974.07(7)(b)1. is appropriate. We do not address application of that provision.
No. 2015AP202-CR
31
pertaining to court-ordered DNA testing. However, at oral argument on April 12, 2005, [defense] counsel directed our attention to § 974.07(6), under which a movant may request certain biological material from the district attorney. We requested supplemental briefs from both parties regarding the impact of [the movant's] argument under § 974.07(6).
Id., ¶25. Proceeding to the interpretation of the statute, we
concluded that § 974.07(6) provided the movant not only access
to "[p]hysical evidence that is in the actual or constructive
possession of a government agency and that contains biological
material or on which there is biological material,"
§ 974.07(6)(a)2., but also "the right to test the sought-after
evidence containing biological material" at his own expense,
assuming other statutory conditions were met. Moran, 284
Wis. 2d 24, ¶¶43, 57.
¶62 We did "acknowledge the plausibility of the position
that all motions for testing, as opposed to inspection, should
proceed under Wis. Stat. § [974].07(7)." Id., ¶49. But we
rejected this interpretation. In our view, "[s]ubsection (6)
allows the movant access to the test results and/or material
under some circumstances, but the movant must decide whether to
test the material and must pay for the testing himself.
Subsection (7), on the other hand, pertains to court-ordered
testing at the State's expense." Id., ¶55. We thus drew a
distinction between testing at private expense under Wis. Stat.
§ 974.07(6) and testing at public expense under § 974.07(7).
See id., ¶57 ("Moran must conduct any testing of the evidence at
his own expense. If a movant seeks DNA testing at public
expense, the movant must proceed under § 974.07(7)(a) or (b),
No. 2015AP202-CR
32
and satisfy the heightened requirements in subsection (7).");
id., ¶56 ("We are unable to discern from the plain language of
§ 974.07 a clear legislative intent to block testing demanded by
a person willing and able to pay until that person satisfies the
requirements for publicly funded DNA testing.").
¶63 Today we conclude that, for several reasons, this
interpretation constitutes an error which we must now correct.15
¶64 To begin with, Wis. Stat. § 974.07(6) says nothing
about allowing the movant to conduct forensic DNA testing of
evidence. See § 974.07(6). Subsection (6)(a) states only that
the district attorney must "make available" the specified
physical evidence. § 974.07(6)(a). It does not authorize the
movant to send away the evidence for testing. We understand
the argument that sub. (6) does not explicitly prohibit a movant
from testing evidence, either. But "[c]ontext" and "the
structure of the statute in which the operative language
appears" are "important to meaning." Kalal, 271 Wis. 2d 633,
¶46. "A statute's purpose . . . may be readily
apparent . . . from its context or the structure of the statute
as a coherent whole." Id., ¶49.
¶65 Review of the whole statute leads us to conclude that
the "textually [and] contextually manifest statutory purpose" of
15 Although the State did not raise this issue in its petition for review, we exercise our discretion to address it anyway. See, e.g., State v. Moran, 2005 WI 115, ¶¶29-31, 284 Wis. 2d 24, 700 N.W.2d 884 (citing Apex Elecs. Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998)).
No. 2015AP202-CR
33
Wis. Stat. § 974.07 is for a movant to obtain "an order
requiring forensic [DNA] testing" of certain evidence.
§ 974.07(2). In fact, the subsection from which this language
is taken, sub. (2), is cited in subs. (3), (4), (5), (6), (7),
(9), and (11) of the statute. See § 974.07(3)-(7), (9), (11).
Subsection (2) is the linchpin of the testing regime.
Subsection (6) in particular contains a provision explaining
that sub. (6) "does not apply unless the information being
disclosed or the material being made available is relevant to
the movant's claim at issue in the motion made under sub. (2)
[for an order requiring forensic DNA testing]." § 974.07(6)(d).
Subsection (7) explains the conditions under which an order will
issue, and subsection (12) of the statute determines whether
testing occurring pursuant to this order will take place at
public or private expense. See § 974.07(7), (12). The "order"
continually referred to is undoubtedly the "order" discussed in
sub. (7). § 974.07(7)(a)-(b).
¶66 We find it unlikely that the legislature would set
forth detailed requirements regarding whether DNA testing may
occur (sub. (7)) and who will pay for that testing (sub. (12)),
only for a movant to bypass these provisions and obtain testing
at private expense using a subsection of the statute that does
not say a word about such testing. Further, allowing testing
under sub. (6) would require only the barest of showings. See
Moran, 284 Wis. 2d 24, ¶3. It is equally difficult to believe
that the statute is most properly read to permit convicted
offenders who are unable to meet the surmountable sub. (7)
No. 2015AP202-CR
34
standard to engage in postconviction fishing expeditions in
attempts to cast doubt upon and upset those convictions.
¶67 Moran did not even discuss sub. (12). In Moran we
suggested that sub. (6) related to testing at private expense,
while sub. (7) related to testing at public expense. See id.,
¶¶55, 57. But review of the entirety of the statute makes clear
that sub. (12) governs whether a movant must pay for court
ordered testing. Pursuant to sub. (12), a non-indigent movant
who prevails under sub. (7) may yet have to pay for the DNA
testing that results. See Wis. Stat. § 974.07(12). Moran's
interpretation of § 974.07(6) ignores sub. (12) entirely. While
it is possible to read § 974.07 as creating two systems for
testing at private expense (under subs. (6) and (12)) and one
system for testing at public expense (under sub. (12)), we do
not find this to be the most sensible interpretation of the
statute. Again, given that the legislature took such pains in
sub. (12) to explain how courts should determine who pays for
testing, it would be strange for the legislature to fail to
mention the costs of testing at all in sub. (6), even to explain
that the movant must fund such testing himself.
¶68 Other subsections of the statute also cast doubt on
Moran's interpretation of Wis. Stat. § 974.07(6). As explained,
in Moran we concluded that sub. (7), as opposed to sub. (6),
"pertain[s] to court-ordered DNA testing." Moran, 284
Wis. 2d 24, ¶25; see id., ¶55 ("Subsection (6) allows the movant
access to the test results and/or material under some
circumstances, but the movant must decide whether to test the
No. 2015AP202-CR
35
material and must pay for the testing himself. Subsection (7),
on the other hand, pertains to court-ordered testing at the
State's expense."). Indeed, sub. (6) says nothing about court
ordered testing. § 974.07(6). But subs. (9) and (10), which
govern disposition of the case following testing——including,
presumably, Moran's sub. (6) testing——speak solely in terms of
testing pursuant to court order. See § 974.07(10)(a) ("If the
results of forensic [DNA] testing ordered under this section
support the movant's claim, the court shall schedule a hearing
to determine the appropriate relief to be granted to the
movant." (Emphasis added.)); § 974.07(9) ("If a court in which
a motion under sub. (2) is filed does not order forensic [DNA]
testing, or if the results of forensic [DNA] testing ordered
under this section are not supportive of the movant's claim, the
court shall determine the disposition of the evidence specified
in the motion subject to the following: . . . ." (Emphases
added.)). The link between subs. (9) and (10) and sub. (7) is
evident, while no such link between subs. (9) and (10) and sub.
(6) appears in the text of the statute. Moran did not resolve
this inconsistency. See Moran, 284 Wis. 2d 24, ¶47 ("[I]f the
testing [at Moran's expense] is done, the circuit court will
determine whether or not the results 'support the movant's
claim.' Wis. Stat. § 974.07(9)-(10).").
¶69 "This court follows the doctrine of stare decisis
scrupulously because of our abiding respect for the rule of
law." State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863
N.W.2d 592 (quoting Johnson Controls, Inc. v. Employers Ins. of
No. 2015AP202-CR
36
Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257);
Hilton v. South Carolina Public Railways Comm'n, 502 U.S. 197,
202 (1991) ("Time and time again, this Court has recognized that
'the doctrine of stare decisis is of fundamental importance to
the rule of law.'" (quoting Welch v. Texas Dep't of Highways and
Public Transp., 483 U.S. 468, 494 (1987) (plurality opinion))).
"[A]ny departure from the doctrine of stare decisis demands
special justification." Johnson Controls, 264 Wis. 2d 60, ¶94
(quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19,
653 N.W.2d 266). We conclude that such special justification is
present in the current case, and overrule Moran's interpretation
of Wis. Stat. § 974.07(6) as independently authorizing forensic
DNA testing at private expense under certain circumstances.
Moran, 284 Wis. 2d 24, ¶3.
¶70 For the reasons already explained, Moran's
interpretation of Wis. Stat. § 974.07(6) is simply "unsound in
principle." Johnson Controls, 264 Wis. 2d 60, ¶99. But the
error also is not a containable one; it renders the rest of the
statute incoherent in a manner we obviously did not contemplate
in Moran. The decision has thus "become detrimental to
coherence and consistency in the law." Id., ¶98. Moreover, in
Moran we did not attempt to undertake a comprehensive
examination of § 974.07; we did not analyze sub. (12) of that
statute. Reconsideration of the statute with the benefit of a
clear understanding of that subsection convinces us that our
interpretation of sub. (6) must be modified to take account of
sub. (12). Cf. Johnson Controls, 264 Wis. 2d 60, ¶98 (among the
No. 2015AP202-CR
37
"criteria in Wisconsin for overturning prior cases" are whether
"changes or developments in the law have undermined the
rationale behind a decision" and whether "there is a need to
make a decision correspond to newly ascertained facts").16
16 Also material to our decision to overrule Moran's understanding of the function of sub. (6) is the potential effect of that case on the legislature's determinations regarding the best way to protect the rights and interests of crime victims in Wisconsin. Although postconviction forensic DNA testing is important, and although a crime victim assuredly has an interest in seeing that the true criminal offender in a case is prosecuted, it is not difficult to imagine why such testing might cause significant distress to victims of Wis. Stat. § 974.07 movants and prevent these victims from obtaining some amount of closure following the infliction of harm upon them. Cf., e.g., State ex rel. Brown v. Bradley, 2003 WI 14, ¶25, 259 Wis. 2d 630, 658 N.W.2d 427 ("consider[ing] the interests that the State, crime victims, and others have in the finality of cases" and noting the possibility of "inequitable results" due to "open[ing] up cases that have long been thought by everyone, including crime victims, to have been final").
While not dispositive in the case at issue, we note that the legislature appears to have had crime victims in mind when enacting Wis. Stat. § 974.07. See § 974.07(4) (providing for notification of the victim of the movant's crime). It understandably needed to strike a balance between the rights and interests of convicted offenders attempting to establish their innocence and the rights and interests of crime victims, while at the same time ensuring prosecution of the actual perpetrators of crimes. Thus, although in some cases it is appropriate for this court to acquiesce in an erroneous prior decision, see, e.g., Kimble v. Marvel Entm't, LLC, 576 U.S. ___, 135 S. Ct. 2401, 2409 (2015) ("Respecting stare decisis means sticking to some wrong decisions."), doing so here is especially troubling. In essence, we would be purposefully perpetuating a much more expansive postconviction forensic DNA testing regime than the legislature saw fit to enact, to the possible detriment of Wisconsin crime victims.
No. 2015AP202-CR
38
¶71 Ultimately stare decisis is a "'principle of policy'
rather than 'an inexorable command.'" Hohn v. United States,
524 U.S. 236, 251 (1998) (quoting Payne v. Tennessee, 501 U.S.
808, 828 (1991)). Each suggestion that one of our cases must be
overturned must be scrutinized individually, and sometimes stare
decisis must yield to other important principles of policy.
This is one such occasion. We thus overrule Moran insofar as it
concluded that "the plain language of § 974.07(6) gives a movant
the right to conduct DNA testing of physical evidence that is in
the actual or constructive possession of a government agency and
that contains biological material or on which there is
biological material, if the movant meets several statutory
prerequisites." Moran, 284 Wis. 2d 24, ¶3 (emphasis omitted).
Henceforth, we adopt the interpretation we "acknowledge[d]" as
"plausib[le]" in Moran: that "all motions for
testing . . . should proceed under Wis. Stat. § [974].07(7)."
Id., ¶49. Wisconsin Stat. § 974.07(6) should be applied
according to its terms, allowing the district attorney and the
movant to share information and "make available" specified
material. See § 974.07(6)(a)-(b). Of course, § 974.07(6)
provides "the movant or his or her attorney" with the ability to
obtain "whether biological material has been tested,"
"[f]indings based on testing of biological materials," and
"[p]hysical evidence that is in the actual or constructive
possession of a government agency and that contains biological
material or on which there is biological material," as long as
No. 2015AP202-CR
39
the requirements of the statute are otherwise met.
§ 974.07(6)(a)1.-2.17
¶72 This opinion should not be read to denigrate the
importance of postconviction forensic DNA testing. "The advent
of DNA technology is one of the most significant scientific
advancements of our era," and "the utility of DNA identification
in the criminal justice system is already undisputed." Maryland
v. King, 569 U.S. ___, 133 S. Ct. 1958, 1966 (2013). Under Wis.
Stat. § 974.07, properly interpreted, convicted offenders can
obtain postconviction forensic DNA testing of evidence. This
opinion simply recognizes the existence of, and applies, the
limits that the legislature set on such testing.18
C. Whether the Circuit Court Erred in Denying Denny's Postconviction Motion for Forensic DNA Testing of Certain Evidence
17 For those who would argue that sub. (6) is of little value because it only allows inspection and does not independently allow for testing, the facts in the case at issue demonstrate why inspection is useful. For example, in his supplemental motion for postconviction forensic DNA testing, Denny explained that after filing his initial motion, two law students assisting him "reviewed the physical evidence on file at the Ozaukee County Clerk of Courts" and "found additional items with which the perpetrator likely came into contact that were previously overlooked." Denny then supplemented his initial request, "seek[ing] to have additional items subjected to DNA testing." Thus, the ability to inspect allows one to ascertain what, if any, testing should be sought.
18 We note also that, in some cases, the parties may stipulate to testing. We deal here with a contested motion for DNA testing.
No. 2015AP202-CR
40
¶73 We now address the merits of Denny's postconviction
motion for forensic DNA testing. Although there are a number of
conditions that Denny must meet before a court may conclude he
is entitled to testing, see, e.g., Wis. Stat. § 974.07(2), we
find it appropriate to decide this case on the basis of
§ 974.07(7)(a)2. alone. Because this provision is fatal to
Denny's claim, we need not address whether he has satisfied
other portions of the statute. See, e.g., Maryland Arms Ltd.
P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786
N.W.2d 15 ("Typically, an appellate court should decide cases on
the narrowest possible grounds." (citing State v. Blalock, 150
Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989)).
¶74 In State v. Hudson, 2004 WI App 99, 273 Wis. 2d 707,
681 N.W.2d 316, decided before Moran, the court of appeals
addressed the proper standard of review to apply to the circuit
court's decision regarding whether a movant has satisfied Wis.
Stat. § 974.07(7)(a)2. See Hudson, 273 Wis. 2d 707, ¶¶13-16.
The court concluded that an erroneous exercise of discretion
standard should be used. Id., ¶16. In Moran the parties
briefed the question of the standard of review that this court
should apply in reviewing circuit court decisions pertaining to
§ 974.07(7)(a)2. and (b)1. The movant argued that a de novo
standard was appropriate for the former, and an erroneous
exercise of discretion standard was appropriate for the latter.
The State's position was somewhat more complicated. However,
Moran did not definitively settle the issue.
No. 2015AP202-CR
41
¶75 Here, the parties barely addressed the standard of
review applicable to Wis. Stat. § 974.07(a)2., although the
State suggests that a deferential approach is appropriate. We
need not decide this issue without adequate briefing, because
Denny's claim fails whether we review the circuit court's
conclusions under a deferential standard or de novo.
¶76 The question before this court is whether "[i]t is
reasonably probable that [Denny] would not have been prosecuted
[or] convicted" of his crime "if exculpatory [DNA] testing
results had been available before the prosecution [or]
conviction." Wis. Stat. § 974.07(7)(a)2. The State does not
dispute that we are to assume for purposes of this analysis that
if DNA testing were to occur, the results would be
"exculpatory." Denny argues that "[t]hree types of DNA test
results would create a reasonable probability of a different
result: DNA that matches a convicted offender; DNA that excludes
Denny and Kent on all items; or DNA on multiple items matching
the same unknown third party."19
¶77 Like the circuit court, we are convinced that Wis.
Stat. § 974.07(7)(a)2. has not been met. The evidence
19 Whether we are bound to consider each of Denny's hypothetical sets of test results exactly as he has presented them is not settled. For example, the State does not necessarily concede that "exculpatory" means that the DNA would "match[] a convicted offender." Regardless, we will assume without definitively resolving the issue that Denny's interpretation of the statute is valid given that it does not change the result in this case.
No. 2015AP202-CR
42
incriminating Denny was, to put it mildly, extensive. Testimony
indicated that Denny confessed, made inculpatory statements to,
and took inculpatory actions in front of, multiple witnesses.
"[T]he statements were . . . made at different times and places,
in some instances corroborated by physical evidence." Denny v.
Gudmanson, 252 F.3d at 905.20 20 In 1987 Denny attempted to obtain a new trial "arguing that the admission of Kent['s] . . . confessions violated his rights under the Confrontation Clause of the Sixth Amendment as interpreted in the Supreme Court's decision of" Cruz v. New York, 481 U.S. 186 (1987). Denny v. Gudmanson, 252 F.3d 896, 899 (7th Cir. 2001). The court of appeals affirmed the circuit court order denying Denny's motion, concluding that "Kent's statements were directly admissible against [Denny]," but that "even if Kent's statements were not directly admissible, it was harmless error to admit them." State v. Denny, 163 Wis. 2d 352, 355, 359, 471 N.W.2d 606 (Ct. App. 1991). Thereafter, Denny filed a petition for a writ of habeas corpus in federal court, and both the Seventh Circuit and the district court below it denied relief. See Denny v. Gudmanson, 252 F.3d at 899, 905. The Supreme Court of the United States denied certiorari. Denny v. Gudmanson, 534 U.S. 938 (2001).
Case law pertaining to the Confrontation Clause has developed in the time since these other proceedings. Compare, e.g., Denny v. Gudmanson, 252 F.3d at 902-03 (discussing Ohio v. Roberts, 448 U.S. 56 (1980)), with Crawford v. Washington, 541 U.S. 36, 69 (2004) (Rehnquist, C.J., concurring in the judgment) (criticizing "the Court's decision to overrule" Roberts). Denny does not now suggest that consideration of certain portions of the testimony presented at the trial against him is improper. Consequently, in our discussion of the background of this case, above, we provided the testimony introduced at Denny's trial as it actually occurred, including statements allegedly made by both Kent and Denny. Nevertheless, and without expressing an opinion on any constitutional question, we observe that our decision would be the same even if we did not consider Kent's statements. Cf. State v. Denny, 163 Wis. 2d at 359 ("Upon reviewing the record, we conclude there is evidence sufficient to convict [Denny] even without the statements made by Kent.").
No. 2015AP202-CR
43
¶78 Additionally, given the way this case proceeded, the
reasoning of the circuit court below is sound: "Mohr's killing
has never been presented as a single-perpetrator
crime. . . . Finding DNA from persons other than Denny"——even
convicted offenders——"would not 'prove Denny's innocence.' It
may only reveal the identity of others who may have been
involved." In light of this fact, and given that there is no
single account of what transpired in this case, the absence of
DNA belonging to Denny and Kent would not be particularly
compelling, either. Indeed, the fact that there were various
inconsistencies between the accounts of the witnesses actually
serves to insulate Denny's conviction.
¶79 We note (as did the circuit court) that the jury in
Denny's case was even presented with a less-sophisticated
preview of what Denny now seeks to obtain through DNA testing:
two of the hairs tested by Nilsson using "microscopic
comparison" were not consistent with samples taken from Mohr,
Denny, or Kent. In other words, the jury was aware of the
possibility that an unknown third party might have been
involved.
¶80 Denny suggests that the witnesses in his case were not
credible——because of, for example, grants of immunity or of
admitted drug and alcohol use at pertinent times——but of course
the jury was not convinced by this line of argument. The idea
that the DNA results Denny seeks would tip the scales and cause
police or a jury to reject the substantial evidence against
Denny is simply conjecture.
No. 2015AP202-CR
44
¶81 In sum, Wis. Stat. § 974.07(7)(a)2. has not been met.21
Even if exculpatory DNA testing results were available before
prosecution and conviction, we are unable to conclude that it is
reasonably probable that Denny would not have been prosecuted or
convicted of his crime. As put by the separate writing below,
"The evidence was vast, overwhelming, and damning. It was not
even close." Denny, 368 Wis. 2d 363, ¶86 (Hagedorn, J.,
concurring in part and dissenting in part). The circuit court
below compared this case to hypothetical cases in which the
truth of who really committed the crime is more readily verified
through DNA testing, such as one involving "a semen match in a
single assailant sexual assault." The evidence provided by the
State in 1982 is not so easily displaced.22 The circuit court
below correctly denied Denny's motion.23
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On November 15, 1982, a jury found Denny and his
brother Kent guilty of the murder of Christopher Mohr ("Mohr").
Denny was sentenced to life imprisonment. Over three decades
later, in 2014, Denny filed a motion claiming innocence and
requesting forensic DNA testing of evidence taken from the scene
of Mohr's murder. Denny asked the circuit court to order that
the testing occur at public expense, or, in the alternative, at
Denny's own expense.
¶3 Whether, and the conditions under which, a court will
order such postconviction forensic DNA testing are questions
governed by Wis. Stat. § 974.07 ("Motion for postconviction
deoxyribonucleic acid testing of certain evidence.").
Interpreting this statute, the circuit court below concluded
that Denny was not entitled to testing either at public or at
private expense. The court of appeals disagreed. We are asked
to determine whether Denny has met the statutory requirements
for forensic DNA testing of the evidence he has identified.
¶4 We conclude that the circuit court did not err in
denying Denny's postconviction motion for forensic DNA testing
of certain evidence. Consequently, we reverse the decision of
the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶5 On January 26, 1982, police discovered Mohr's body in
a room on the second floor of a house in Grafton, Wisconsin. On
June 25, 1982, a criminal complaint was filed against Denny in
Ozaukee County circuit court charging him as party to the crime
of the first-degree murder of Mohr, contrary to Wis. Stat.
§ 940.01 (1981-82) and Wis. Stat. § 939.05 (1981-82). Denny's
brother Kent was also charged.
¶6 From November 9 to November 15, 1982, Denny and Kent
were tried jointly before a jury.3 At trial, the State presented
its case against Denny and Kent in the following general4 manner.
¶7 Jonathan Leatherman ("Leatherman") testified that on
January 26, 1982, at around 9:30 a.m., he spoke to Mohr on the
phone about traveling to Mohr's house to smoke marijuana.
Around 10:45 or 10:50 a.m., Leatherman began walking to Mohr's
house, arriving there minutes later. Leatherman entered the
house, went upstairs, and upon opening the door to "[Mohr's]
room" saw Mohr's body on the floor. Leatherman called the
"rescue squad" and reported a suicide. He then returned to
Mohr's room to retrieve a quarter pound of marijuana which he
suspected was in Mohr's room in order to "save [Mohr] from
trouble," but ultimately went outside to wait for the police
empty-handed.
¶8 Later that day, Leatherman received a call from Kent.
When asked when he had last spoken to Kent prior to that call,
Leatherman replied, "I'm not sure, maybe a week, I'm not sure,
maybe more." Kent asked Leatherman if he "knew to [sic] get any
pot" and after Leatherman said he did not, Kent "said what about
[Mohr]," and Leatherman informed Kent that Mohr had killed
himself. Kent asked Leatherman if he wanted to "stop over"
later that day, and Leatherman did so. At Kent's house,
Leatherman had a conversation with Kent and Denny about
Leatherman's experiences that day.
¶9 Gary Helm ("Helm") testified that he worked for the
Grafton Street Department and was also part of the Grafton
rescue squad. On January 26, 1982, at around 10:55 a.m. to
11:00 a.m., Helm was "picking up garbage" as part of his
employment when he received notification of an attempted
suicide. Helm traveled to the reported address where he met a
police officer outside of Mohr's house. There, "a fella in
front of the house . . . was yelling help him, please help him,
I don't believe he did it." According to Helm's testimony, Helm
and the officer went inside and up to Mohr's room. Helm tried
but failed to obtain a pulse reading.
¶10 Daniel Palkovic ("Officer Palkovic") of the Grafton
Police Department testified that he was dispatched to Mohr's
residence on January 26, 1982, and that he accompanied Helm to
Mohr's room. Officer Palkovic described a number of items
retrieved from the scene of Mohr's murder, from areas nearby, or
from Mohr's body at the autopsy. These items were introduced as
exhibits at trial and included: (1) a jacket found in Mohr's
room which appeared to have blood on it; (2) a torn shirt
removed from Mohr which had blood on it; (3) jeans removed from
Mohr which had blood on them; (4) socks removed from Mohr which
had blood on them; (5) "under briefs" removed from Mohr which
had blood on them; (6) a hat found in Mohr's room which had
blood on it; (7) gloves found in Mohr's room; (8) a yellow towel
taken from the hallway directly outside of Mohr's room which had
blood on it; (9) samples of Mohr's head and pubic hair; (10)
hair that had been "clenched in . . . Mohr's left hand"; (11)
hair located between the fingers of Mohr's right hand, which was
"closed somewhat, but . . . not fully clenched"; (12) hair stuck
to Mohr's chin and neck by dried blood; (13) loose hair "taken
from [Mohr's] mouth area" which "[a]ppeared to be" "stuck" there
by "a combination of dried blood and possibly saliva"; (14) hair
at least apparently stuck to Mohr's pants by dried blood; (15)
hair, "a possible seed of some type," and some glass fragments
stuck to Mohr's skin and shirt in his "upper chest area"; (16)
the "top or main portion of a bong pipe" found in Mohr's room
which "appear[ed] to have been shattered or broken on one end"
and which appeared to have blood on its "tube"; (17) the "base
portion" of the bong pipe, which was found in Mohr's room; (18)
the "bowl portion" of the bong pipe, which was found in Mohr's
room and which had blood on it; (19) "fragments of . . . maroon
plexiglass material, similar to the top portion of the bong
No. 2015AP202-CR
6
pipe," found "scattered about" Mohr's room in "[r]oughly the
immediate area of [Mohr's] body itself" and which had blood on
them; (20) "pieces of the maroon plexiglass portion of the bong
pipe and . . . a metallic[-]type of rod which was found to be
located on the floor under [Mohr] after his body was moved"
which had blood on them; (21) a "rubber-type of grommet" used
with the bong pipe and found "just inside of the doorway leading
into" Mohr's room; (22) a "glass drinking container" which was
found on the floor next to an ice cube, had blood on it, and had
"a small amount of orange liquid at the bottom of the glass";
(23) ice cubes (by the time of trial, water) collected from
various areas of Mohr's room and observed around 11:30 a.m.; and
(24) a phone directory found in the hallway on the second floor
of Mohr's house with a "footwear impression on the cover" which
appeared to be caused at least in part by blood. On cross
examination, Officer Palkovic conceded that the "shoe bottom
pattern" imprinted on the phone book was a common one.
¶11 There were additional items discussed during Officer
Palkovic's testimony which were not, ultimately, received by the
court: (1) a yellow stool which was taken from a room of Mohr's
house different from the room Mohr was found in and which
appeared to have blood on it; (2) a "small water faucet-type
screen" stuck to Mohr's shirt by dried blood, similar to other
screens found in Mohr's room; (3) "several screens, safety pins
and some screws and some thumb tacks" which "gave the
appearance, were attached to the back of the victim's neck and
head area, the hair area itself" by "blood which had
No. 2015AP202-CR
7
coagulated"; (4) certain "fragments or pieces of the plexiglass
portion of the bong pipe" found "on the floor of . . . [Mohr's]
bedroom alongside" Mohr's body; (5) scissors found in Mohr's
room; (6) a red disposable lighter found in Mohr's room under
Mohr's right shoulder which appeared to have blood on it; and
(7) blood samples removed from an overturned "metal lawn chair"
found in Mohr's room.
¶12 Samples of the defendants' head and pubic hair taken
directly from the defendants were also introduced.
¶13 Ozaukee County Deputy Coroner Ruth Heiser testified
that on January 26, 1982, she was dispatched to Mohr's house and
that she pronounced Mohr dead at 12:05 p.m. that day.
¶14 Dr. Hellen Young ("Dr. Young"), who performed an
autopsy of Mohr, discussed the nature and extent of the wounds
on Mohr's body and her opinion of the cause of Mohr's death.
According to Dr. Young, Mohr's death was caused by "massive
hemorrhage due to multiple incised wounds." Dr. Young described
over 50 wounds on Mohr's body and opined that at least some of
these wounds were caused by a knife. One wound in particular
was a "good-sized gaping wound" in Mohr's "back directly over
the area of where the heart would be reflected" requiring "at
least two to three" "gashes." Mohr's heart, however, was
"intact within [his] body." Mohr had a "large gaping wound" on
his throat. He had two wounds in his stomach "made by one stab
wound" which Mohr would have sustained "early in the series of
wounds that were received." Dr. Young further discussed
injuries to Mohr's head caused by "blunt trauma" and agreed that
No. 2015AP202-CR
8
at least a portion of the bong pipe introduced into evidence
could have produced such injuries.
¶15 The "meat and potatoes of the case," in the State's
words, were the collection of witnesses called by the State who
testified as to numerous statements made by Denny and Kent about
Mohr's murder.
¶16 Trent Denny ("Trent"), Denny and Kent's brother,
testified that "two, three days" after Trent was released from
the Ozaukee County Jail on February 21, 1982, Kent told Trent
that Kent had killed Mohr. On a separate occasion ("I think it
was the day after I talked to Kent," according to Trent), Trent
asked Kent "if he really did it," and Kent replied "yes." Two
or three days after that, Trent asked Denny "if it was true."
Denny "asked [Trent] why did Kent tell[?]" After Trent told
Denny that "Kent told [Trent] he killed" Mohr, Denny "looked at
[Trent] like he was mad." Trent offered his assistance to
Denny. Denny told Trent that Denny and Kent had stabbed Mohr.
Specifically, Kent asked Mohr "how he felt," then stabbed Mohr
once in the stomach, then asked Mohr "how he felt now," then
gave the knife to Denny, after which Denny stabbed Mohr. Mohr
"was coming after [Denny] while [Denny] was stabbing him." Kent
"hit [Mohr] over the head with the bong." On yet another
occasion, Trent again asked Kent "if it was true," and Kent
affirmed that it was.
¶17 "Maybe two, three" weeks after Trent spoke with Denny,
Trent had a conversation with Kent and Denny. They told Trent
"we had to get rid of the clothes." That night, Kent, Trent,
No. 2015AP202-CR
9
and Lori Jacque ("Jacque") drove to a cemetery. Kent got out of
the car and went to the cemetery. Five minutes later, he
returned carrying a paper bag and the three drove away. Kent
"said something that there was blood on the clothes," and "asked
[Trent and Jacque] if [they] could smell it." At some point
while in the car that night, Kent pulled a shirt out of the bag
and Trent saw a "stain" on it. On cross-examination, Trent
agreed that he did not "really know what was in [the] bag," and
instead "just assumed it was the clothes." Eventually the three
drove to Jacque's house, Jacque retrieved a plastic bag, and
Kent put the paper bag into the plastic bag. The three then
drove to a dump in either "Port or Fredonia," and Kent "shot the
bag into the dump."
¶18 On another date, behind Trent's house, Denny showed
Trent what Denny said was a knife. Trent saw the handle, but
not the blade. Finally, a separate time Trent asked Kent and
Denny together "if they did it," and "[t]hey told [Trent] yes."
¶19 Jacque testified that on February 20, 1982, while at a
party in "the Denny room" (referred to later as Kent's bedroom),
Kent "looked very upset" and told Jacque that he had killed
Mohr. Later that night, Kent indicated to Jacque that "[h]e
wanted to go get the clothing back from the graveyard." "About
a week after that," Kent again spoke with Jacque about the
clothing. A "couple weeks after" the initial conversation,
according to Jacque, Jacque, Trent, and Kent drove to a
"graveyard." Kent exited the car and came back "with a bundle
of clothes under his arm." Back in the car, Kent held up a
No. 2015AP202-CR
10
shirt. The three stopped at Jacque's house, where they
retrieved a paper bag. They then drove to the town dump in the
"Town of Port." Kent had placed the clothing in the bag. He
exited the car and walked to the dump. Jacque and Trent "drove
down the road and turned around and came back and picked him
up." That night, Kent said that he was "glad to get rid of the
clothes."
¶20 On another date, Jacque was in a car with Kent and
Denny. She heard Kent and Denny have a conversation about how
"they forgot the tennis shoes." On another date, "Kent had said
that he wanted to turn himself in" because "[i]t was just
getting to be too much." Kent was crying at the time. On
another date, in Kent's room, Denny "said something about a
scratch on his leg," namely "[t]hat that was from where [Mohr]
had scratched him." Jacque did not actually see any scratches.
Finally, when asked "Were there any other conversations that you
remember?" Jacque replied, "Well, several times there was
things said about it." However, Jacque did not "remember any of
those in any specifics besides what [she had] already stated."
¶21 On cross-examination, Jacque testified that on
separate occasions Kent had told her, with regard to the reason
for Mohr's murder, that "somebody put a gun to his head" and
that "he did it to prove it to his brother." Jacque was also
asked "on another occasion did he do it to say it was because it
was either him or [Mohr]?", and she replied "Yes, I think I
heard something like that done."
No. 2015AP202-CR
11
¶22 Diane Hansen ("Hansen") testified that "approximately
a week after" Mohr's death, at the Sundance Tavern, Kent told
Hansen that "he killed [Mohr]," and then, after Hansen started
crying, that "he was only kidding." On cross-examination Hansen
agreed that Kent also said "do you think I'd do something like
that?" A "[c]ouple weeks later," Kent told Hansen that he went
to Mohr's house, that Mohr was "standin' by the fish tank and
[Kent] stabbed" Mohr in the stomach, then left the room and
"[g]ot sick."
¶23 "[A] long time after that," Hansen asked Kent "if
there was any truth to the rumor that [Mohr's] heart was cut
out," and Kent told Hansen "[y]es." Hansen also testified, in
response to the question of whether Kent had, at any time, told
Hansen "that he saw anyone walking up the street as he got out
of [Mohr's] house," that "[Kent] said he thought he
saw . . . Leatherman," specifically "[o]n a road behind a
garbage truck." On cross-examination, Hansen testified that in
her "very first" conversation with Kent about Mohr's death, Kent
told Hansen that Leatherman "had found [Mohr] and [Mohr] was
dead," and that "it was an accidental death." On re-direct,
Hansen explained that the conversation was the "same day" as
Mohr's death.
¶24 Lori Ann Jastor Commons ("Commons") testified that,
while at a party at Kent's house the night before Trent "got out
of jail," she heard Kent say:
[Mohr] was at his fish tank and Kent went up to him and stabbed him and asked him how he felt,
No. 2015AP202-CR
12
and . . . [Mohr] replied that he felt all right and that he proceeded to stab him one more time and he had gotten sick and run into the bathroom and [Denny] had taken over.
At that point Denny "just stabbed him." Commons clarified that
Kent told Commons that he stabbed Mohr "[i]n his side."
¶25 Commons also discussed a conversation she heard that
occurred "approximately three weeks after the murder" at the
"Sundance Bar in Port":
[Kent] was talking to a friend of mine, . . . Hansen, when I came out of the bathroom, and [Hansen] was crying and I went up to her to see what was wrong and Kent was talking to her and said that he had to do it, otherwise it would have been him.
¶26 Robin Doyle ("Doyle") testified that she asked Kent
"how, out of curiosity if he had killed" Mohr. Kent said "[y]es
he did." Kent also told Doyle that "he had told everybody, that
he ever told, something different so that the stories wouldn't
match up."
¶27 Kent's coworker, Carl Winker ("Winker"), testified
that at the end of April 1982 Kent told him that he "knew the
guy" who killed, in the words of the State, "a boy in Grafton."
Kent told Winker that "the guy started stabbin' him and he just
kept doin' it," that "the guy" "liked it, got into it," and that
"the guy's heart was cut out." Kent also told Winker that the
killing "was for drug money." Some time later, Kent told Winker
that he would not be coming to work anymore. When asked why,
Kent stated it was because he was going to jail. When asked why
he was going to jail, Kent said "because of that guy that got
No. 2015AP202-CR
13
killed." Winker asked Kent, "[W]hy, do you know something about
it?" Kent replied, "[N]o, I'm the guy that did it." On another
occasion, Kent told Winker "there was a coat and a knife and a
dump in Sheboygan and the coat was full of blood."
¶28 Steven Hansen ("Steve H.") testified that in early
March 1982 Denny told Steve H. that "[Denny] and Kent had
killed" Mohr. Denny told Steve H. that Denny and Kent went to
Mohr's bedroom, that Kent "pulled out a knife
and . . . proceeded to stab" Mohr. Steve H. also testified that
he remembered telling Officer Palkovic that Denny told Steve H.
the following:
Mohr was facing the window when the Denny boys were in the bedroom and Kent pulled a knife out and looked at [Mohr], and looked at . . . Denny and then . . . Denny nodded his head and Kent started stabbing [Mohr] in the stomach[.]
. . .
Mohr would not fall, but subsequently he did fall to the floor and . . . [Denny] kicked . . . Mohr[.]
. . .
[Denny] and Kent . . . walked out of the house and they didn't think anyone saw them[.]
. . .
[Either Kent or Denny told Steve H. that] Kent and [Denny] might have seen . . . Leatherman when they
No. 2015AP202-CR
14
were leaving the . . . Mohr residence the day of the murder[.]5
¶29 Patricia Robran ("Robran") testified that in either
March or April 1982 she was present in the basement of her
parents' house with Denny. Denny was crying. Eventually Denny
told Robran "that him and . . . Kent were the ones who killed
that one boy in Grafton," that "him and Kent stabbed him and
they hit him" with a bong, that "there was no reason for it and
alls I got was a quarter pound [of marijuana] out of it." Denny
informed Robran that "Kent stabbed [Mohr] first and he handed
[Denny] the knife and Kent told him to continue what he was
doing until he got back, so [Denny] did, and he didn't remember
if he did it five or ten or fifteen times." Robran added that
Denny told her that before the stabbing occurred, "Kent had
asked [Mohr] how he was feeling, he said he was feeling fine,
and then Kent stabbed him and asked him how he'd feel now. They
just kept doin' it."
¶30 Daniel Johansen ("Johansen"), an inmate at the Ozaukee
County Jail, testified that Denny told him about Mohr's murder.
Johansen stated that Denny told him:
[Denny] and Kent went over to . . . Mohr's house, and I'm not sure, but it was either the, that [Mohr] owed Kent money or they were going to pick up some pot, and [Denny] . . . went out of the room and that [Mohr] and Kent were in and he said all of a sudden he heard how 5 These statements were read to Steve H. by the State, and Steve H. simply assented to having told them to Officer Palkovic. On cross-examination, Steve H. agreed that he did not "really remember how these statements which [the State] ha[d] read to [him] got to Officer Palkovic or into his report."
No. 2015AP202-CR
15
does this feel, and he came back in the room and Kent had stabbed him in the stomach.
. . .
[T]hen he said that Kent just started stabbing him and then he went to the bathroom and looked in the mirror at himself because he couldn't believe it.
. . .
[Denny] . . . hit [Mohr] over the head with a bong and kicked him a couple times.
. . .
[Denny] said the shoes he, he took 'em over to some sewage plant in here, in Port or some sewage plant around here.
. . .
[H]e . . . threw 'them in.
¶31 Tod Trierweiler ("Trierweiler") testified that in late
March of 1982 he was in the Denny house with Russ Schram
("Schram"), Tammy Whitaker ("Whitaker"), Kent, and Denny.
Trierweiler left with Denny in a car.6 They stopped at a gas
station in Grafton. Denny asked for and obtained the keys to
Trierweiler's car and put a brown bag "rolled about half-way"
into the trunk of the car. Trierweiler drove Denny to the
Sundance Tavern, then went to his girlfriend Cindy Otto's
("Otto") house, where he told Otto "about the keys." Later,
Trierweiler found a bag that "looked like it was half-way down
and it was rolled up" in his car and opened it. Inside were a
6 It is unclear from the testimony whether, in Trierweiler's account, other individuals accompanied the two.
No. 2015AP202-CR
16
pair of tennis shoes and a pair of brown loafers. Trierweiler
wore the tennis shoes for about three months. As to the
loafers, Trierweiler testified, "[M]y girlfriend's brother came
up from Texas with no pairs of shoes . . . and I guess he took
'em." Eventually Trierweiler gave the tennis shoes to Sergeant
Fred Goetz ("Sergeant Goetz"), who was "looking for the shoes."
Trierweiler stated on cross-examination that when he retrieved
the tennis shoes from his car he examined them and there was no
blood on them. For his part, Sergeant Goetz testified as to
receiving the shoes from Trierweiler, and as to the chain of
custody following his receipt of the shoes. Sergeant Goetz
agreed that Trierweiler had told him that "he could not state
for certain if [the shoes] were the ones that . . . Denny had
placed in his trunk." These shoes were admitted into evidence.
¶32 Otto testified that she and Trierweiler had a
conversation about the keys, that she and Trierweiler discovered
a "brown grocery bag" which contained two pairs of shoes in the
trunk of Trierweiler's car, that Trierweiler wore the tennis
shoes, and that her brother took the second pair of shoes, which
she described as "suede tied shoes." Otto also discussed an
occasion when Denny asked Trierweiler "if he could go back to
look at [Trierweiler's] house to look in or at [Trierweiler's]
car." Trierweiler refused at the time because he was late to
drop Otto off at home. Otto also discussed how Trierweiler came
to give the tennis shoes to Sergeant Goetz.
¶33 Whitaker testified that she was at a party in late
March 1982 with Kent, Denny, Schram and Trierweiler at the Denny
No. 2015AP202-CR
17
house. At one point Schram, Trierweiler, and Whitaker went
outside. Schram "put the shoes in, on the bag, I should say,
into the back seat [sic]" of a car and told Whitaker "those were
the murder shoes." Denny then exited the house and the four
went to a gas station. At the gas station, Schram and Denny
"put the bag in the trunk." Whitaker described the bag as a
"rolled," "brown paper bag."
¶34 Whitaker further explained that she was Denny's
girlfriend of about eight months and testified to two accounts
of Mohr's murder Denny had related to her, though she prefaced
her testimony with the statement that her account was "a rough
estimate of what [she] remember[ed]." First, Denny told
Whitaker "[t]hat . . . Leatherman and [Denny] went over
to . . . Mohr's house and [Leatherman] got in a fight with
[Mohr] and started stabbing him, and then . . . [Leatherman]
asked [Denny] to help 'im so [Denny] hit him." Second, Denny
told Whitaker "[t]hat him and Kent went over to . . . Mohr's
house and then they went up there . . . [and] Kent started
stabbin' him and then [Denny] went into the bathroom, looked in
the mirror and said my God, what'd I get myself into." Denny
also told Whitaker that "they got" a quarter pound of "[p]ot"
out of the murder.
¶35 Schram testified to events that occurred at a party in
late March of 1982 at the Denny house. Schram, Trierweiler,
Whitaker, Kent, and Denny were at the party. Schram stated, "We
were gonna leave" and that Denny "took a bag out of the closet
and took it with us." Schram described the bag as a "[r]egular
No. 2015AP202-CR
18
brown paper bag." Denny put the bag in the back seat of a car.
At some time before Denny placed the bag in the car, he told
Schram that the bag contained "[m]urder shoes." Schram
testified that although he did not "exactly" remember who
brought the shoes out to the car, he was "pretty sure it was"
Denny. Schram continued that he and at least some of the others
drove to a gas station, where Denny asked Trierweiler for the
keys to the trunk of his car. Trierweiler gave Denny the keys
and Denny "put the bag in there." The bag was "rolled up so you
could carry it with a handle like." The parties eventually
"dropped [Denny] off at a bar." Afterwards, Denny contacted
Schram a "couple times, saying to get it out of the car."
Schram told Denny that "he knew where [Trierweiler] lived and
that he could get it from him anytime."
¶36 On another occasion, Schram, Kent, Denny, Whitaker,
and Jacque were together in Grafton. Denny told Schram, "you'd
be surprised how long it took a person to die." Another time
"between March and April," according to Schram, Denny "was mad
at Trent and . . . said that he'd take him out and put an arrow
through him" because of "something about testifying."
Additionally, on September 1, Schram received a call from Denny
"from jail." Denny told Schram "[t]o not say anything about the
shoes because [Schram would] be an accessory" to "[m]urder."
¶37 The State called Jeffrey Nilsson ("Nilsson"), who
previously worked for the Wisconsin State Crime Laboratory and
who analyzed blood and hair from the crime scene. Certain of
the blood tested came from an individual of the same
No. 2015AP202-CR
19
international blood group to which Mohr belonged. Other testing
produced inconclusive results or was not possible. Nilsson also
examined "over two hundred hairs" and only two were inconsistent
with the samples taken from Mohr when analyzed by "microscopic
comparison." These two hairs were also not consistent with
samples taken from Denny and Kent. The hairs were retrieved
from a sterile sheet used to wrap Mohr's body and from Mohr's
shirt. These hairs were admitted into evidence.
¶38 Arthur Varriale of the State Crime Lab testified that
he examined the phone book found in Mohr's house and "was able
to detect the presence of human blood stains upon" the book. He
was not able to detect any blood on the shoes allegedly worn by
Trierweiler. Charles Hannah ("Hannah") of the State Crime Lab,
who compared the tread on one of the shoes allegedly recovered
from Trierweiler to the impression on the phone book, also
testified. Hannah explained that while the pattern on the
bottom of the shoe was the same pattern as the incomplete
impression on the phone book, he could not determine whether the
shoe in fact made the impression.
¶39 Neither Kent nor Denny testified at trial. Denny's
attorney did not call any witnesses to testify. Kent's attorney
attempted to call several witnesses, but ultimately obtained
meaningful testimony from only one: Gordon Denny ("Gordon"), the
father of Kent, Trent, and Denny. Gordon testified that his
sons had been competing with each other "all their lives"; that
Trent and Kent had a poor relationship; that Kent was sometimes
No. 2015AP202-CR
20
a practical joker, with some jokes being "quite elaborate"; and
that Kent had "a habit of fabulation" or of "tell[ing] stories."
¶40 During closing arguments, the State pointed to, inter
alia, the dozens of inculpatory statements allegedly made by
Kent and Denny to various of the witnesses who had testified,
the evidence relating to the alleged destruction of clothing,
the episode in which Denny allegedly showed Trent the knife, and
the evidence relating to the shoes allegedly worn by
Trierweiler, including Hannah's opinion as to the similarity
between the impression on the phone book and the pattern on one
of those shoes. The attorneys for Kent and Denny, in turn,
attacked the State's witnesses and the State's physical evidence
on numerous grounds, arguing that the State had not met its
burden of proving their clients guilty beyond a reasonable
doubt. To take one example, Denny's attorney characterized some
of the State's evidence as consisting of:
[S]tatements which in my view have been made by unreliable, incredible braggarts, liars, to equal[ly] unreliable persons, who in my view, are drug users, possibly alcoholics, certainly drunkards, people who, themselves admitted on that witness stand to being people who exaggerate, who lie, who make up stories, who had faulty memories, who had to have their recollections refreshed by police.
¶41 According to the record, on November 15, 1982, the
jury departed the courtroom to deliberate at 4:56 p.m. At
10:49 p.m. the court reconvened and the jury's verdict was read.
The jury found Denny (and Kent) guilty of first-degree murder.
No. 2015AP202-CR
21
On November 16, 1982, the circuit court sentenced Denny to life
imprisonment and a judgment of conviction was filed.
¶42 On April 14, 1983, Denny filed a motion for
postconviction relief. On July 1, 1983, an order was filed
denying that motion. On July 8, 1983, Denny filed a notice of
appeal. On December 5, 1984, the court of appeals affirmed
Denny's conviction. State v. Denny, No. 1983AP1311-CR,
unpublished slip op. (Wis. Ct. App. Dec. 5, 1984). On
February 5, 1985, this court denied review of that appeal.
¶43 Since that time, Denny has unsuccessfully attempted to
upset his conviction on a number of occasions. See Denny v.
Gudmanson, 252 F.3d 896, 898-99 (7th Cir. 2001).
¶44 On May 1, 2014, Denny filed a motion for
postconviction forensic DNA testing under Wis. Stat. § 974.07.
On August 4, 2014, he supplemented the motion.7 Denny claimed he
was innocent and sought to prove his innocence through forensic
DNA testing of various items of evidence related to Mohr's
murder and comparison of "any genetic profile found on the
evidence with the DNA profiles of offenders in" state and
federal DNA databanks. The items Denny sought to test included:
(1) pieces of the bong pipe; (2) hair found on different areas
of Mohr's body and on the sterile sheet used to wrap Mohr's
body; (3) the yellow towel; (4) blood removed from the metal
chair; (5) articles of Mohr's clothing; (6) the hat; (7) the 7 There appear to be related filings in the record, but Denny directs us to these two.
No. 2015AP202-CR
22
gloves; (8) the lighter; (9) the screens; (10) the glass cup;
(11) "facial breathing masks found at the scene," "one of which
appeared to be quite heavily soiled," according to a
supplemental report of the Grafton Police Department authored by
Officer Palkovic; and (12) Mohr's hair. Denny theorized that
the perpetrator's DNA was left at the crime scene, and that
testing could produce several types of results supportive of
Denny's claim: (1) "testing on many or most of the items [could]
exclude[] [Denny]"; (2) "the same unknown third-party profile
[could be] found on multiple items"; and (3) "DNA results on one
or more items could exclude [Denny] and match a convicted
offender in the state or federal databank." Denny claimed he
was entitled to forensic DNA testing at public expense, or, in
the alternative, at his own expense.
¶45 On January 2, 2015, the circuit court denied Denny's
motion. On January 22, 2015, Denny filed a notice of appeal.
On March 23, 2016, the court of appeals reversed the circuit
court's order denying Denny's motion and remanded the case for
forensic DNA testing at private or public expense. Denny, 368
Wis. 2d 363, ¶¶1, 64. The court of appeals concluded that
Denny's motion met the pertinent requirements of Wis. Stat.
§ 974.07. See id.8 On April 21, 2016, the State filed a 8 Judge Hagedorn concurred in part and dissented in part, concluding that while Denny was entitled to testing at private expense, the circuit court's determination regarding testing at public expense should not be disturbed. State v. Denny, 2016 WI App 27, ¶89, 368 Wis. 2d 363, 878 N.W.2d 679 (Hagedorn, J., concurring in part and dissenting in part).
No. 2015AP202-CR
23
petition for review in this court. On June 15, 2016, this court
granted the petition.
II. STANDARD OF REVIEW
¶46 In this case we interpret and apply Wis. Stat.
§ 974.07. "The interpretation and application of a statute
present questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court." State v. Alger, 2015 WI 3, ¶21, 360
Wis. 2d 193, 858 N.W.2d 346 (citing State v. Ziegler, 2012 WI
73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238).
[W]e have repeatedly held that statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted)
(quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211,
612 N.W.2d 659). The standard of review applicable to the
circuit court's denial of Denny's motion will be discussed
below.
III. ANALYSIS
¶47 Our analysis proceeds in three basic parts. First, we
provide an overview of the postconviction forensic DNA testing
statute, Wis. Stat. § 974.07. Second, we discuss State v.
Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, our 2005
No. 2015AP202-CR
24
decision interpreting portions of that statute, and overrule a
part of Moran's interpretation of Wis. Stat. § 974.07(6).
Finally, we examine whether the circuit court erred in denying
Denny's postconviction motion for forensic DNA testing of
certain evidence, and conclude that it did not.
A. Wisconsin Stat. § 974.07
¶48 We begin with an overview of Wis. Stat. § 974.07,
"Motion for postconviction deoxyribonucleic acid testing of
certain evidence." Wis. Stat. § 974.07. The statute is
composed of 13 subsections, but the core of the testing regime
is contained in subsections (2), (6), (7), (9)-(10), and (12).
Respectively, these subsections govern: making a motion for
postconviction forensic DNA testing; the sharing of pertinent
information and evidence between the district attorney and the
movant; the circuit court's decision on the movant's motion;
disposition of the case; and payment of the costs of testing.
¶49 The process begins in sub. (2) when one of a few types
of persons entitled to do so——here, a person "convicted of a
crime"——"make[s] a motion [in the proper court] for an order
requiring forensic [DNA] testing of evidence". Wis. Stat.
§ 974.07(2).9 Critical to an understanding of the entire statute
is that the framework functions to dispose of a
"motion . . . for an order." Id. (emphases added).
9 Subsection (1) contains definitions. See Wis. Stat. § 974.07(1).
No. 2015AP202-CR
25
Importantly, the evidence sought to be tested must meet three
requirements under sub. (2):
(a) The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect.
(b) The evidence is in the actual or constructive possession of a government agency.
(c) The evidence has not previously been subjected to forensic [DNA] testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.
Wis. Stat. § 974.07(2)(a)-(c).
¶50 Next, sub. (6) enables "the movant" to obtain access
to certain information and evidence possessed by "the district
attorney," and vice versa.10 Specifically:
(a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make
10 Subsections (3) and (4) involve notice requirements aimed at apprising the appropriate district attorney's office and the victim of the motion proceedings and giving the district attorney the chance to "respond" to the motion. See Wis. Stat. § 974.07(3)-(4).
Subsection (5) requires the district attorney, upon receipt of the motion or notice from a court of the motion, to "take all actions necessary to ensure that all biological material that was collected in connection with the investigation or prosecution of the case and that remains in the actual or constructive custody of a government agency is preserved pending completion of the proceedings under this section." Wis. Stat. § 974.07(5).
No. 2015AP202-CR
26
available to the movant or his or her attorney the following material:
1. Findings based on testing of biological materials.
2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.
(b) Upon demand the movant or his or her attorney shall disclose to the district attorney whether biological material has been tested and shall make available to the district attorney the following material:
1. Findings based on testing of biological materials.
2. The movant's biological specimen.
Wis. Stat. § 974.07(6)(a)-(b). This information and material
must be "relevant to the movant's claim at issue in the motion
made under sub. (2)." § 974.07(6)(d). Subsection (6) also
enables the court to "impose reasonable conditions on
availability of material requested under pars. (a) 2. and (b) 2.
in order to protect the integrity of the evidence."
§ 974.07(6)(c).
¶51 Subsection (7) governs the circuit court's decision on
the movant's motion. Subsection (7) sets forth two means by
which a movant may obtain forensic DNA testing under the
statute: first, the court "shall order" testing if the four
requirements of Wis. Stat. § 974.07(7)(a) "apply"; second, the
court "may order" testing if the three requirements of
§ 974.07(7)(b) "apply." § 974.07(7)(a)-(b).
No. 2015AP202-CR
27
¶52 Both avenues to testing require that "[t]he evidence
to be tested meets the conditions under sub. (2)(a) to (c)" (set
forth above). Wis. Stat. § 974.07(7)(a)3., (b)2. Both also
require that the "chain of custody of the evidence to be tested
establishes that the evidence has not been tampered with,
replaced, or altered in any material respect or, if the chain of
custody does not establish the integrity of the evidence, the
testing itself can establish the integrity of the evidence."
§ 974.07(7)(a)4., (b)3.
¶53 The two sets of requirements differ in two crucial
respects. First, a court "may order" testing if, among other
things:
It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under s. 971.17, or the disposition under ch. 938, would have been more favorable to the movant if the results of [DNA] testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.
Wis. Stat. § 974.07(7)(b)1. In contrast, a court "shall order"
testing if, among other things:
It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory [DNA] testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.
No. 2015AP202-CR
28
§ 974.07(7)(a)2.
¶54 Second, the mandatory testing scheme includes an
additional requirement: "[t]he movant [must] claim[] that he or
she is innocent of the offense at issue in the motion under sub.
(2)." Wis. Stat. § 974.07(7)(a)1.
¶55 Subsections (9) and (10) govern disposition of the
case following the circuit court's decision under sub. (7) and
any testing that occurs.11 Under sub. (9), if the court does not
order forensic DNA testing, "or if the results of forensic [DNA]
testing ordered under this section are not supportive of the
movant's claim, the court shall determine the disposition of the
evidence specified in the motion subject to" certain
particulars. Wis. Stat. § 974.07(9)(a)-(b).
¶56 Under sub. (10)(a):
If the results of forensic [DNA] testing ordered under this section support the movant's claim, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. After the hearing, and based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice . . . .
Wis. Stat. § 974.07(10)(a). Subsection (10)(a) provides
examples of orders the court may enter, such as "[a]n order
11 Subsection (8) authorizes the court to "impose reasonable conditions on any testing ordered under this section in order to protect the integrity of the evidence and the testing process." Wis. Stat. § 974.07(8). The subsection also discusses where testing may take place. Id.
No. 2015AP202-CR
29
granting the movant a new trial or fact-finding hearing."
§ 974.07(10)(a)2.
¶57 Finally, sub. (12) pertains to payment of the costs of
testing.12 First, "[t]he court may order a movant to pay the
costs of any testing ordered by the court under this section if
the court determines that the movant is not indigent." Wis.
Stat. § 974.07(12)(a). Indigency is defined via guidelines set
forth in § 974.07(12)(b). Second, "[t]he state crime
laboratories shall pay for testing ordered under this section
and performed by a facility other than the state crime
laboratories if the court does not order the movant to pay for
the testing." § 974.07(12)(c).13
¶58 Having set forth the relevant provisions of Wis. Stat.
§ 974.07, we now discuss Moran.
B. State v. Moran
12 Subsection (10)(b) exempts a court ordering a new trial under (10)(a) from the necessity of "making the findings specified in s. 805.15 (3)(a) and (b)." Wis. Stat. § 974.07(10)(b). Wisconsin Stat. § 805.15(3) relates to new trials "ordered on the grounds of newly-discovered evidence." Wis. Stat. § 805.15(3).
Subsection (11) requires a court to "refer the movant to the state public defender for determination of indigency and appointment of counsel under s. 977.05(4)(j)" under specified circumstances. Wis. Stat. § 974.07(11).
13 The final subsection of the statute, sub. (13), explains that "[a]n appeal may be taken from an order entered under this section as from a final judgment." Wis. Stat. § 974.07(13).
No. 2015AP202-CR
30
¶59 As shown above, whether a movant may obtain
postconviction forensic DNA testing of evidence depends on,
among other things, whether one of the two "reasonably probable"
formulations set forth in Wis. Stat. § 974.07(7) applies in the
case. Before this court, Denny argues that "[i]t is reasonably
probable that [he] would not have been prosecuted . . . [or]
convicted" of his crime "if exculpatory [DNA] testing results
had been available before the prosecution . . . [or]
conviction." § 974.07(7)(a)2.14 As we explain in the next
section, this contention fails.
¶60 But we must first discuss our decision in Moran
because Denny claims that under Moran he is entitled to forensic
DNA testing under Wis. Stat. § 974.07(6) even if
§ 974.07(7)(a)2. remains unmet. While we agree that Moran
supports this claim, we overrule this interpretation of
§ 974.07(6).
¶61 The movant in Moran——who had been convicted of crimes
relating to an incident during which he allegedly injured two
individuals with a knife——sought postconviction forensic DNA
testing of certain blood samples pursuant to Wis. Stat.
§ 974.07. Moran, 284 Wis. 2d 24, ¶¶5-20, 22-24. Before
assessing the merits of the case, we explained:
In their briefs, the parties focused our attention almost exclusively on § 974.07(7), 14 Denny does not develop an argument suggesting that testing under Wis. Stat. § 974.07(7)(b)1. is appropriate. We do not address application of that provision.
No. 2015AP202-CR
31
pertaining to court-ordered DNA testing. However, at oral argument on April 12, 2005, [defense] counsel directed our attention to § 974.07(6), under which a movant may request certain biological material from the district attorney. We requested supplemental briefs from both parties regarding the impact of [the movant's] argument under § 974.07(6).
Id., ¶25. Proceeding to the interpretation of the statute, we
concluded that § 974.07(6) provided the movant not only access
to "[p]hysical evidence that is in the actual or constructive
possession of a government agency and that contains biological
material or on which there is biological material,"
§ 974.07(6)(a)2., but also "the right to test the sought-after
evidence containing biological material" at his own expense,
assuming other statutory conditions were met. Moran, 284
Wis. 2d 24, ¶¶43, 57.
¶62 We did "acknowledge the plausibility of the position
that all motions for testing, as opposed to inspection, should
proceed under Wis. Stat. § [974].07(7)." Id., ¶49. But we
rejected this interpretation. In our view, "[s]ubsection (6)
allows the movant access to the test results and/or material
under some circumstances, but the movant must decide whether to
test the material and must pay for the testing himself.
Subsection (7), on the other hand, pertains to court-ordered
testing at the State's expense." Id., ¶55. We thus drew a
distinction between testing at private expense under Wis. Stat.
§ 974.07(6) and testing at public expense under § 974.07(7).
See id., ¶57 ("Moran must conduct any testing of the evidence at
his own expense. If a movant seeks DNA testing at public
expense, the movant must proceed under § 974.07(7)(a) or (b),
No. 2015AP202-CR
32
and satisfy the heightened requirements in subsection (7).");
id., ¶56 ("We are unable to discern from the plain language of
§ 974.07 a clear legislative intent to block testing demanded by
a person willing and able to pay until that person satisfies the
requirements for publicly funded DNA testing.").
¶63 Today we conclude that, for several reasons, this
interpretation constitutes an error which we must now correct.15
¶64 To begin with, Wis. Stat. § 974.07(6) says nothing
about allowing the movant to conduct forensic DNA testing of
evidence. See § 974.07(6). Subsection (6)(a) states only that
the district attorney must "make available" the specified
physical evidence. § 974.07(6)(a). It does not authorize the
movant to send away the evidence for testing. We understand
the argument that sub. (6) does not explicitly prohibit a movant
from testing evidence, either. But "[c]ontext" and "the
structure of the statute in which the operative language
appears" are "important to meaning." Kalal, 271 Wis. 2d 633,
¶46. "A statute's purpose . . . may be readily
apparent . . . from its context or the structure of the statute
as a coherent whole." Id., ¶49.
¶65 Review of the whole statute leads us to conclude that
the "textually [and] contextually manifest statutory purpose" of
15 Although the State did not raise this issue in its petition for review, we exercise our discretion to address it anyway. See, e.g., State v. Moran, 2005 WI 115, ¶¶29-31, 284 Wis. 2d 24, 700 N.W.2d 884 (citing Apex Elecs. Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998)).
No. 2015AP202-CR
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Wis. Stat. § 974.07 is for a movant to obtain "an order
requiring forensic [DNA] testing" of certain evidence.
§ 974.07(2). In fact, the subsection from which this language
is taken, sub. (2), is cited in subs. (3), (4), (5), (6), (7),
(9), and (11) of the statute. See § 974.07(3)-(7), (9), (11).
Subsection (2) is the linchpin of the testing regime.
Subsection (6) in particular contains a provision explaining
that sub. (6) "does not apply unless the information being
disclosed or the material being made available is relevant to
the movant's claim at issue in the motion made under sub. (2)
[for an order requiring forensic DNA testing]." § 974.07(6)(d).
Subsection (7) explains the conditions under which an order will
issue, and subsection (12) of the statute determines whether
testing occurring pursuant to this order will take place at
public or private expense. See § 974.07(7), (12). The "order"
continually referred to is undoubtedly the "order" discussed in
sub. (7). § 974.07(7)(a)-(b).
¶66 We find it unlikely that the legislature would set
forth detailed requirements regarding whether DNA testing may
occur (sub. (7)) and who will pay for that testing (sub. (12)),
only for a movant to bypass these provisions and obtain testing
at private expense using a subsection of the statute that does
not say a word about such testing. Further, allowing testing
under sub. (6) would require only the barest of showings. See
Moran, 284 Wis. 2d 24, ¶3. It is equally difficult to believe
that the statute is most properly read to permit convicted
offenders who are unable to meet the surmountable sub. (7)
No. 2015AP202-CR
34
standard to engage in postconviction fishing expeditions in
attempts to cast doubt upon and upset those convictions.
¶67 Moran did not even discuss sub. (12). In Moran we
suggested that sub. (6) related to testing at private expense,
while sub. (7) related to testing at public expense. See id.,
¶¶55, 57. But review of the entirety of the statute makes clear
that sub. (12) governs whether a movant must pay for court
ordered testing. Pursuant to sub. (12), a non-indigent movant
who prevails under sub. (7) may yet have to pay for the DNA
testing that results. See Wis. Stat. § 974.07(12). Moran's
interpretation of § 974.07(6) ignores sub. (12) entirely. While
it is possible to read § 974.07 as creating two systems for
testing at private expense (under subs. (6) and (12)) and one
system for testing at public expense (under sub. (12)), we do
not find this to be the most sensible interpretation of the
statute. Again, given that the legislature took such pains in
sub. (12) to explain how courts should determine who pays for
testing, it would be strange for the legislature to fail to
mention the costs of testing at all in sub. (6), even to explain
that the movant must fund such testing himself.
¶68 Other subsections of the statute also cast doubt on
Moran's interpretation of Wis. Stat. § 974.07(6). As explained,
in Moran we concluded that sub. (7), as opposed to sub. (6),
"pertain[s] to court-ordered DNA testing." Moran, 284
Wis. 2d 24, ¶25; see id., ¶55 ("Subsection (6) allows the movant
access to the test results and/or material under some
circumstances, but the movant must decide whether to test the
No. 2015AP202-CR
35
material and must pay for the testing himself. Subsection (7),
on the other hand, pertains to court-ordered testing at the
State's expense."). Indeed, sub. (6) says nothing about court
ordered testing. § 974.07(6). But subs. (9) and (10), which
govern disposition of the case following testing——including,
presumably, Moran's sub. (6) testing——speak solely in terms of
testing pursuant to court order. See § 974.07(10)(a) ("If the
results of forensic [DNA] testing ordered under this section
support the movant's claim, the court shall schedule a hearing
to determine the appropriate relief to be granted to the
movant." (Emphasis added.)); § 974.07(9) ("If a court in which
a motion under sub. (2) is filed does not order forensic [DNA]
testing, or if the results of forensic [DNA] testing ordered
under this section are not supportive of the movant's claim, the
court shall determine the disposition of the evidence specified
in the motion subject to the following: . . . ." (Emphases
added.)). The link between subs. (9) and (10) and sub. (7) is
evident, while no such link between subs. (9) and (10) and sub.
(6) appears in the text of the statute. Moran did not resolve
this inconsistency. See Moran, 284 Wis. 2d 24, ¶47 ("[I]f the
testing [at Moran's expense] is done, the circuit court will
determine whether or not the results 'support the movant's
claim.' Wis. Stat. § 974.07(9)-(10).").
¶69 "This court follows the doctrine of stare decisis
scrupulously because of our abiding respect for the rule of
law." State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863
N.W.2d 592 (quoting Johnson Controls, Inc. v. Employers Ins. of
No. 2015AP202-CR
36
Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257);
Hilton v. South Carolina Public Railways Comm'n, 502 U.S. 197,
202 (1991) ("Time and time again, this Court has recognized that
'the doctrine of stare decisis is of fundamental importance to
the rule of law.'" (quoting Welch v. Texas Dep't of Highways and
Public Transp., 483 U.S. 468, 494 (1987) (plurality opinion))).
"[A]ny departure from the doctrine of stare decisis demands
special justification." Johnson Controls, 264 Wis. 2d 60, ¶94
(quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19,
653 N.W.2d 266). We conclude that such special justification is
present in the current case, and overrule Moran's interpretation
of Wis. Stat. § 974.07(6) as independently authorizing forensic
DNA testing at private expense under certain circumstances.
Moran, 284 Wis. 2d 24, ¶3.
¶70 For the reasons already explained, Moran's
interpretation of Wis. Stat. § 974.07(6) is simply "unsound in
principle." Johnson Controls, 264 Wis. 2d 60, ¶99. But the
error also is not a containable one; it renders the rest of the
statute incoherent in a manner we obviously did not contemplate
in Moran. The decision has thus "become detrimental to
coherence and consistency in the law." Id., ¶98. Moreover, in
Moran we did not attempt to undertake a comprehensive
examination of § 974.07; we did not analyze sub. (12) of that
statute. Reconsideration of the statute with the benefit of a
clear understanding of that subsection convinces us that our
interpretation of sub. (6) must be modified to take account of
sub. (12). Cf. Johnson Controls, 264 Wis. 2d 60, ¶98 (among the
No. 2015AP202-CR
37
"criteria in Wisconsin for overturning prior cases" are whether
"changes or developments in the law have undermined the
rationale behind a decision" and whether "there is a need to
make a decision correspond to newly ascertained facts").16
16 Also material to our decision to overrule Moran's understanding of the function of sub. (6) is the potential effect of that case on the legislature's determinations regarding the best way to protect the rights and interests of crime victims in Wisconsin. Although postconviction forensic DNA testing is important, and although a crime victim assuredly has an interest in seeing that the true criminal offender in a case is prosecuted, it is not difficult to imagine why such testing might cause significant distress to victims of Wis. Stat. § 974.07 movants and prevent these victims from obtaining some amount of closure following the infliction of harm upon them. Cf., e.g., State ex rel. Brown v. Bradley, 2003 WI 14, ¶25, 259 Wis. 2d 630, 658 N.W.2d 427 ("consider[ing] the interests that the State, crime victims, and others have in the finality of cases" and noting the possibility of "inequitable results" due to "open[ing] up cases that have long been thought by everyone, including crime victims, to have been final").
While not dispositive in the case at issue, we note that the legislature appears to have had crime victims in mind when enacting Wis. Stat. § 974.07. See § 974.07(4) (providing for notification of the victim of the movant's crime). It understandably needed to strike a balance between the rights and interests of convicted offenders attempting to establish their innocence and the rights and interests of crime victims, while at the same time ensuring prosecution of the actual perpetrators of crimes. Thus, although in some cases it is appropriate for this court to acquiesce in an erroneous prior decision, see, e.g., Kimble v. Marvel Entm't, LLC, 576 U.S. ___, 135 S. Ct. 2401, 2409 (2015) ("Respecting stare decisis means sticking to some wrong decisions."), doing so here is especially troubling. In essence, we would be purposefully perpetuating a much more expansive postconviction forensic DNA testing regime than the legislature saw fit to enact, to the possible detriment of Wisconsin crime victims.
No. 2015AP202-CR
38
¶71 Ultimately stare decisis is a "'principle of policy'
rather than 'an inexorable command.'" Hohn v. United States,
524 U.S. 236, 251 (1998) (quoting Payne v. Tennessee, 501 U.S.
808, 828 (1991)). Each suggestion that one of our cases must be
overturned must be scrutinized individually, and sometimes stare
decisis must yield to other important principles of policy.
This is one such occasion. We thus overrule Moran insofar as it
concluded that "the plain language of § 974.07(6) gives a movant
the right to conduct DNA testing of physical evidence that is in
the actual or constructive possession of a government agency and
that contains biological material or on which there is
biological material, if the movant meets several statutory
prerequisites." Moran, 284 Wis. 2d 24, ¶3 (emphasis omitted).
Henceforth, we adopt the interpretation we "acknowledge[d]" as
"plausib[le]" in Moran: that "all motions for
testing . . . should proceed under Wis. Stat. § [974].07(7)."
Id., ¶49. Wisconsin Stat. § 974.07(6) should be applied
according to its terms, allowing the district attorney and the
movant to share information and "make available" specified
material. See § 974.07(6)(a)-(b). Of course, § 974.07(6)
provides "the movant or his or her attorney" with the ability to
obtain "whether biological material has been tested,"
"[f]indings based on testing of biological materials," and
"[p]hysical evidence that is in the actual or constructive
possession of a government agency and that contains biological
material or on which there is biological material," as long as
No. 2015AP202-CR
39
the requirements of the statute are otherwise met.
§ 974.07(6)(a)1.-2.17
¶72 This opinion should not be read to denigrate the
importance of postconviction forensic DNA testing. "The advent
of DNA technology is one of the most significant scientific
advancements of our era," and "the utility of DNA identification
in the criminal justice system is already undisputed." Maryland
v. King, 569 U.S. ___, 133 S. Ct. 1958, 1966 (2013). Under Wis.
Stat. § 974.07, properly interpreted, convicted offenders can
obtain postconviction forensic DNA testing of evidence. This
opinion simply recognizes the existence of, and applies, the
limits that the legislature set on such testing.18
C. Whether the Circuit Court Erred in Denying Denny's Postconviction Motion for Forensic DNA Testing of Certain Evidence
17 For those who would argue that sub. (6) is of little value because it only allows inspection and does not independently allow for testing, the facts in the case at issue demonstrate why inspection is useful. For example, in his supplemental motion for postconviction forensic DNA testing, Denny explained that after filing his initial motion, two law students assisting him "reviewed the physical evidence on file at the Ozaukee County Clerk of Courts" and "found additional items with which the perpetrator likely came into contact that were previously overlooked." Denny then supplemented his initial request, "seek[ing] to have additional items subjected to DNA testing." Thus, the ability to inspect allows one to ascertain what, if any, testing should be sought.
18 We note also that, in some cases, the parties may stipulate to testing. We deal here with a contested motion for DNA testing.
No. 2015AP202-CR
40
¶73 We now address the merits of Denny's postconviction
motion for forensic DNA testing. Although there are a number of
conditions that Denny must meet before a court may conclude he
is entitled to testing, see, e.g., Wis. Stat. § 974.07(2), we
find it appropriate to decide this case on the basis of
§ 974.07(7)(a)2. alone. Because this provision is fatal to
Denny's claim, we need not address whether he has satisfied
other portions of the statute. See, e.g., Maryland Arms Ltd.
P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786
N.W.2d 15 ("Typically, an appellate court should decide cases on
the narrowest possible grounds." (citing State v. Blalock, 150
Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989)).
¶74 In State v. Hudson, 2004 WI App 99, 273 Wis. 2d 707,
681 N.W.2d 316, decided before Moran, the court of appeals
addressed the proper standard of review to apply to the circuit
court's decision regarding whether a movant has satisfied Wis.
Stat. § 974.07(7)(a)2. See Hudson, 273 Wis. 2d 707, ¶¶13-16.
The court concluded that an erroneous exercise of discretion
standard should be used. Id., ¶16. In Moran the parties
briefed the question of the standard of review that this court
should apply in reviewing circuit court decisions pertaining to
§ 974.07(7)(a)2. and (b)1. The movant argued that a de novo
standard was appropriate for the former, and an erroneous
exercise of discretion standard was appropriate for the latter.
The State's position was somewhat more complicated. However,
Moran did not definitively settle the issue.
No. 2015AP202-CR
41
¶75 Here, the parties barely addressed the standard of
review applicable to Wis. Stat. § 974.07(a)2., although the
State suggests that a deferential approach is appropriate. We
need not decide this issue without adequate briefing, because
Denny's claim fails whether we review the circuit court's
conclusions under a deferential standard or de novo.
¶76 The question before this court is whether "[i]t is
reasonably probable that [Denny] would not have been prosecuted
[or] convicted" of his crime "if exculpatory [DNA] testing
results had been available before the prosecution [or]
conviction." Wis. Stat. § 974.07(7)(a)2. The State does not
dispute that we are to assume for purposes of this analysis that
if DNA testing were to occur, the results would be
"exculpatory." Denny argues that "[t]hree types of DNA test
results would create a reasonable probability of a different
result: DNA that matches a convicted offender; DNA that excludes
Denny and Kent on all items; or DNA on multiple items matching
the same unknown third party."19
¶77 Like the circuit court, we are convinced that Wis.
Stat. § 974.07(7)(a)2. has not been met. The evidence
19 Whether we are bound to consider each of Denny's hypothetical sets of test results exactly as he has presented them is not settled. For example, the State does not necessarily concede that "exculpatory" means that the DNA would "match[] a convicted offender." Regardless, we will assume without definitively resolving the issue that Denny's interpretation of the statute is valid given that it does not change the result in this case.
No. 2015AP202-CR
42
incriminating Denny was, to put it mildly, extensive. Testimony
indicated that Denny confessed, made inculpatory statements to,
and took inculpatory actions in front of, multiple witnesses.
"[T]he statements were . . . made at different times and places,
in some instances corroborated by physical evidence." Denny v.
Gudmanson, 252 F.3d at 905.20 20 In 1987 Denny attempted to obtain a new trial "arguing that the admission of Kent['s] . . . confessions violated his rights under the Confrontation Clause of the Sixth Amendment as interpreted in the Supreme Court's decision of" Cruz v. New York, 481 U.S. 186 (1987). Denny v. Gudmanson, 252 F.3d 896, 899 (7th Cir. 2001). The court of appeals affirmed the circuit court order denying Denny's motion, concluding that "Kent's statements were directly admissible against [Denny]," but that "even if Kent's statements were not directly admissible, it was harmless error to admit them." State v. Denny, 163 Wis. 2d 352, 355, 359, 471 N.W.2d 606 (Ct. App. 1991). Thereafter, Denny filed a petition for a writ of habeas corpus in federal court, and both the Seventh Circuit and the district court below it denied relief. See Denny v. Gudmanson, 252 F.3d at 899, 905. The Supreme Court of the United States denied certiorari. Denny v. Gudmanson, 534 U.S. 938 (2001).
Case law pertaining to the Confrontation Clause has developed in the time since these other proceedings. Compare, e.g., Denny v. Gudmanson, 252 F.3d at 902-03 (discussing Ohio v. Roberts, 448 U.S. 56 (1980)), with Crawford v. Washington, 541 U.S. 36, 69 (2004) (Rehnquist, C.J., concurring in the judgment) (criticizing "the Court's decision to overrule" Roberts). Denny does not now suggest that consideration of certain portions of the testimony presented at the trial against him is improper. Consequently, in our discussion of the background of this case, above, we provided the testimony introduced at Denny's trial as it actually occurred, including statements allegedly made by both Kent and Denny. Nevertheless, and without expressing an opinion on any constitutional question, we observe that our decision would be the same even if we did not consider Kent's statements. Cf. State v. Denny, 163 Wis. 2d at 359 ("Upon reviewing the record, we conclude there is evidence sufficient to convict [Denny] even without the statements made by Kent.").
No. 2015AP202-CR
43
¶78 Additionally, given the way this case proceeded, the
reasoning of the circuit court below is sound: "Mohr's killing
has never been presented as a single-perpetrator
crime. . . . Finding DNA from persons other than Denny"——even
convicted offenders——"would not 'prove Denny's innocence.' It
may only reveal the identity of others who may have been
involved." In light of this fact, and given that there is no
single account of what transpired in this case, the absence of
DNA belonging to Denny and Kent would not be particularly
compelling, either. Indeed, the fact that there were various
inconsistencies between the accounts of the witnesses actually
serves to insulate Denny's conviction.
¶79 We note (as did the circuit court) that the jury in
Denny's case was even presented with a less-sophisticated
preview of what Denny now seeks to obtain through DNA testing:
two of the hairs tested by Nilsson using "microscopic
comparison" were not consistent with samples taken from Mohr,
Denny, or Kent. In other words, the jury was aware of the
possibility that an unknown third party might have been
involved.
¶80 Denny suggests that the witnesses in his case were not
credible——because of, for example, grants of immunity or of
admitted drug and alcohol use at pertinent times——but of course
the jury was not convinced by this line of argument. The idea
that the DNA results Denny seeks would tip the scales and cause
police or a jury to reject the substantial evidence against
Denny is simply conjecture.
No. 2015AP202-CR
44
¶81 In sum, Wis. Stat. § 974.07(7)(a)2. has not been met.21
Even if exculpatory DNA testing results were available before
prosecution and conviction, we are unable to conclude that it is
reasonably probable that Denny would not have been prosecuted or
convicted of his crime. As put by the separate writing below,
"The evidence was vast, overwhelming, and damning. It was not
even close." Denny, 368 Wis. 2d 363, ¶86 (Hagedorn, J.,
concurring in part and dissenting in part). The circuit court
below compared this case to hypothetical cases in which the
truth of who really committed the crime is more readily verified
through DNA testing, such as one involving "a semen match in a
single assailant sexual assault." The evidence provided by the
State in 1982 is not so easily displaced.22 The circuit court
below correctly denied Denny's motion.23
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of State of Wisconsin v. Jeffrey C. Denny?
The outcome was: We conclude that the circuit court did not err in denying Denny's postconviction motion for forensic DNA testing of certain evidence. Consequently, we reverse the decision of the court of appeals.
Which court heard State of Wisconsin v. Jeffrey C. Denny?
This case was heard in SUPREME COURT OF WISCONSIN, WI. The presiding judge was ANNETTE KINGSLAND ZIEGLER.
Who were the attorneys in State of Wisconsin v. Jeffrey C. Denny?
Plaintiff's attorney: Misha Tseytlin, solicitor general, Daniel P Lennington, deputy solicitor general, Donald V. Latorraca, assistant attorney general, and Brad D. Schimel attorney general. Defendant's attorney: Keith A. Findley, and Wisconsin Innocence Project, with Steven D. Gunder, assistant state public defender..
When was State of Wisconsin v. Jeffrey C. Denny decided?
This case was decided on March 5, 2017.