State v. Jeffrey C. Denny , 373 Wis. 2d 390 ( 2017 )

2017 WI 17
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP202-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Jeffrey C. Denny,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: February 28, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 26, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ozaukee
JUDGE: Joseph W. Voiland
JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: ROGGENSACK, C.J. concur and dissent (opinion
filed).
DISSENTED: ABRAHAMSON, J., dissents (Opinion filed).
BRADLEY, A. W. J. dissents, joined by
ABRAHAMSON, J. (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner the cause was
argued by Misha Tseytlin, solicitor general, with whom on the
brief was Daniel P Lennington, deputy solicitor general, Donald
V. Latorraca, assistant attorney general, and Brad D. Schimel
attorney general.
For the defendant-appellant, there was a brief and oral
argument by Keith A. Findley, and Wisconsin Innocence Project,
with whom on the brief was Steven D. Gunder, assistant state
public defender.
2017 WI 17
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP202-CR
(L.C. No. 1982CF425)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. FEB 28, 2017
Jeffrey C. Denny, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
published decision of the court of appeals, State v. Denny, 2016
WI App 27, 368 Wis. 2d 363, 878 N.W.2d 679, which reversed the
Ozaukee County circuit court's1 order denying Jeffrey C. Denny's
("Denny") postconviction motion for forensic deoxyribonucleic
acid ("DNA") testing of evidence pursuant to Wis. Stat. § 974.07
(2013-14)2 and remanded the case for forensic DNA testing at
private or public expense. Denny, 368 Wis. 2d 363, ¶¶1, 64.
1
The Honorable Joseph W. Voiland presided.
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
No. 2015AP202-CR
¶2 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.
2
No. 2015AP202-CR
§ 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
3
The Honorable Warren A. Grady presided.
4
We provide the following account of the trial proceedings
because, as will become apparent, these details are relevant to
our evaluation of whether, in the words of the postconviction
forensic DNA testing statute, "[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.
This summary is not intended to provide a comprehensive
discussion of the testimony given at Denny's jury trial or of
the cross-examination of the witnesses discussed. The witnesses
are not presented in this section in the exact order in which
they testified at trial.
3
No. 2015AP202-CR
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
4
No. 2015AP202-CR
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
5
No. 2015AP202-CR
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
6
No. 2015AP202-CR
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
7
No. 2015AP202-CR
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,
8
No. 2015AP202-CR
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
9
No. 2015AP202-CR
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."
10
No. 2015AP202-CR
¶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,
11
No. 2015AP202-CR
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
12
No. 2015AP202-CR
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
13
No. 2015AP202-CR
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."
14
No. 2015AP202-CR
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.
15
No. 2015AP202-CR
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
16
No. 2015AP202-CR
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
17
No. 2015AP202-CR
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
18
No. 2015AP202-CR
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
19
No. 2015AP202-CR
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.
20
No. 2015AP202-CR
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.
21
No. 2015AP202-CR
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).
22
No. 2015AP202-CR
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
23
No. 2015AP202-CR
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).
24
No. 2015AP202-CR
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).
25
No. 2015AP202-CR
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).
26
No. 2015AP202-CR
¶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.
27
No. 2015AP202-CR
§ 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.
28
No. 2015AP202-CR
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).
29
No. 2015AP202-CR
¶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.
30
No. 2015AP202-CR
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),
31
No. 2015AP202-CR
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)).
32
No. 2015AP202-CR
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)
33
No. 2015AP202-CR
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
34
No. 2015AP202-CR
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
35
No. 2015AP202-CR
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
36
No. 2015AP202-CR
"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.
37
No. 2015AP202-CR
¶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
38
No. 2015AP202-CR
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.
39
No. 2015AP202-CR
¶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.
40
No. 2015AP202-CR
¶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.
41
No. 2015AP202-CR
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.").
42
No. 2015AP202-CR
¶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.
43
No. 2015AP202-CR
¶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
21
The parties offer nuanced, and differing, interpretations
of the phrase "reasonably probable." Wis. Stat.
§ 974.07(7)(a)2. The State asserts that "reasonably probable"
means a "reasonable probability that a jury, looking at both the
[old evidence] and the [new evidence], would have a reasonable
doubt as to the defendant's guilt." State v. McCallum, 208
Wis. 2d 463, 475, 561 N.W.2d 707 (1997). In contrast, Denny
believes that "reasonably probable" means "a probability
sufficient to undermine confidence in the outcome." Strickland
v. Washington, 466 U.S. 668, 694 (1984). We decline to resolve
the parties' dispute over the precise meaning of "reasonably
probable," given that Denny's motion should be denied under
either standard. See Maryland Arms Ltd. P'ship v. Connell,
2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 ("Issues that
are not dispositive need not be addressed." (citing Gross v.
Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938)).
44
No. 2015AP202-CR
State in 1982 is not so easily displaced.22 The circuit court
below correctly denied Denny's motion.23
IV. CONCLUSION
¶82 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.
22
This is not to say that Wis. Stat. § 974.07(7)(a)2. will
only be satisfied in cases involving a single perpetrator. For
instance, there may be cases involving multiple actors in which
the preconviction evidence establishes that the movant could
only have played one role in the crime and postconviction
forensic DNA testing sufficiently discredits that possibility.
Because those circumstances are not present here, we need not
analyze this issue further.
23
Citing State v. Hudson, 2004 WI App 99, ¶16, 273
Wis. 2d 707, 681 N.W.2d 316, for the proposition that a circuit
court's determination under Wis. Stat. § 974.07(7)(a)2. is
reviewed for an erroneous exercise of discretion, the court of
appeals below concluded that the circuit court applied multiple
"improper standards of law" in reaching its ultimate decision
regarding § 974.07(7)(a)2. Denny, 368 Wis. 2d 363, ¶59. More
specifically, the court of appeals found error in certain
conclusions of the circuit court relating to the relevance of
the evidence that Denny sought to test and whether those results
would be exculpatory or could exculpate Denny. Id., ¶¶38, 59.
Regardless of the propriety of these conclusions or of the
technical accuracy of the court's phrasing of certain legal
propositions, review of the circuit court's entire decision
makes clear that it properly analyzed the question at issue
here, namely whether § 974.07(7)(a)2. was met. Cf., e.g.,
Englewood Cmty. Apartments Ltd. P'ship v. Alexander Grant & Co.,
119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App. 1984)
("[R]emand directing the trial court to make an explicit finding
where it has already made unmistakable but implicit findings to
the same effect would be both superfluous and a waste of
judicial resources.").
45
No. 2015AP202-CR
By the Court.—The decision of the court of appeals is
reversed.
46
No. 2015AP202-CR.pdr
¶83 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part,
dissenting in part). Although the majority opinion correctly
overrules Moran's interpretation of Wis. Stat. § 974.07(6), in
which portion of the opinion I concur and join, I dissent from
the part of the majority opinion that concludes that Jeffrey
Denny is not entitled to DNA testing of evidence collected at
the crime scene. I conclude that Denny met the statutory
requirements of Wis. Stat. § 974.07(7)(a); and therefore, the
circuit court was required to grant Denny's motion for forensic
DNA testing. Accordingly, I respectfully concur in part and
dissent in part with, and from, the majority opinion.
I. BACKGROUND
¶84 The majority opinion ably sets forth the facts that
underlie the dispute before us. I will not repeat them, in
full, here. However, I do relate a few facts to turn the
reader's attention to my discussion that follows.
¶85 On January 26, 1982, Christopher Mohr was found dead
in his home by Jonathan Leatherman. Police received a tip that
Kent Denny was involved in the crime. Eventually, the police
pursued Kent's brother, Jeffrey Denny (Denny), as a suspect.
Both Denny and Kent were charged with first-degree homicide and
were tried together. On November 15, 1982, the jury found Denny
and Kent guilty.
¶86 On May 1, 2014, Denny filed a motion for
postconviction forensic DNA testing pursuant to Wis. Stat.
§ 974.07(7)(a). As the majority opinion notes, Denny claimed he
1
No. 2015AP202-CR.pdr
was innocent of the murder and sought DNA testing of several
objects recovered from the crime scene. These items include:
"(1) the large section of a bong pipe; (2) the base of the bong
pipe; (3) the hairs collected from the victim's left hand;
(4) stray hairs found on various items of clothing from the
victim's body; (5) a yellow hand towel; and (6) facial breathing
masks found at the scene."1 In a supplemental memorandum, Denny
asked for DNA testing of several additional items:
"(1) additional pieces of the bong pipe; (2) blood from the
metal chair found by the victim's head; (3) the victim's bloody
clothing; (4) the bloody hat found near the victim; (5) the
bloody gloves found near the victim; (6) stray hairs found on
various items of clothing from the victim's body; (7) the
victim's hair; (8) the lighter found under the victim's body;
(9) the screens found on the victim's body; and (10) the glass
cup found near the victim."2
¶87 The circuit court denied Denny's motion, but the court
of appeals reversed. We granted the State's petition for
review.
1
Denny's Mot. for Postconviction DNA testing (May 1, 2014).
2
Denny's Supp. Mot. for Postconviction DNA testing (August
4, 2014).
2
No. 2015AP202-CR.pdr
II. DISCUSSION
A. Standard of Review
¶88 This case requires us to interpret and apply Wis.
Stat. § 974.07. "Questions of statutory interpretation and
application are questions of law that we review independently."
State v. Hanson, 2001 WI 4, ¶14, 338 Wis. 2d 243, 808 N.W.2d
390.
B. General Wis. Stat. § 974.07 Principles
¶89 Denny sought DNA testing pursuant to Wis. Stat.
§ 974.07(7)(a). Unlike § 974.07(7)(b) in which the circuit
court has discretion, paragraph § 974.07(7)(a) requires the
circuit court to order DNA testing if the movant satisfies the
criteria set forth therein. The difference in the two
provisions, as the majority opinion correctly notes, is that a
movant is required to maintain his innocence in order to prevail
on a motion for DNA testing made pursuant to paragraph (a).
¶90 Wisconsin Stat. § 974.07(7)(a) has four requirements a
movant must meet in order to be successful. First, as mentioned
above, the defendant must maintain "that he or she is innocent
of the offense." Wis. Stat. § 947.07(7)(a)1.
¶91 Second, it must be "reasonably probable that the
movant would not have been . . . convicted . . . if exculpatory
deoxyribonucleic acid testing results had been available before
the prosecution, [or] conviction, . . . ." Wis. Stat.
§ 947.07(7)(a)2.
¶92 "Reasonably probable" is an outcome determinative test
akin to the test we apply when determining if newly discovered
evidence warrants a new trial. Similar to the test we apply in
3
No. 2015AP202-CR.pdr
that context, "we must determine whether there is a reasonable
probability that a jury, looking at all the relevant evidence in
regard to whether the defendant did or did not commit the crime,
would have reasonable doubt as to the defendant's guilt. This
examination requires an assessment of all the evidence to
determine what effect, if any, the newly discovered evidence
would be reasonably probable to have on a jury's verdict at a
new trial." State v. Armstrong, 2005 WI 119, ¶167, 283 Wis. 2d
639, 700 N.W.2d 98 (Roggensack, J., dissenting) (internal
citation marks omitted). Moreover, under this prong, the plain
language of Wis. Stat. 947.07(7)(a)2. requires that we are to
assume, as we consider Denny's motion, that all of the evidence
he seeks to have tested will be exculpatory because the test he
must meet, which is set out in subdivision (a)2., concerns
"exculpatory deoxyribonucleic acid testing results."3 Stated
otherwise, if we did not assume that the DNA testing results
would be exculpatory, we could not decide whether it would be
reasonably probable that Denny would not have been convicted if
the DNA testing results had been available at trial.
¶93 Third, pursuant to Wis. Stat. § 974.07(7)(a)3., the
movant must meet the criteria set forth in § 974.07(2)(a)-(c).
Section 974.07(2)(a) provides that "[t]he evidence [must be]
relevant to the investigation or prosecution that resulted in
the conviction." The evidence must be in the possession of a
3
Exculpatory evidence is defined as "Evidence tending to
establish a criminal defendant's innocence." Exculpatory
Evidence, Black's Law Dictionary 637 (9th ed. 2009).
4
No. 2015AP202-CR.pdr
government agency. Wis. Stat. § 974.07(2)(b). Finally, the
evidence was not "previously [] subjected to forensic
deoxyribonucleic acid 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)(c). If a movant meets each of these
criteria, then he has satisfied the third statutory requirement
necessary to obtain DNA testing.
¶94 Fourth, "The chain of custody of the evidence to be
tested [must] establish[] 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." Wis. Stat. § 974.07(7)(a)4. This requirement
ensures the integrity of the evidence the defendant seeks to
test.
¶95 As discussed above, Wis. Stat. § 974.07(7)(a) provides
that a movant who meets each of these statutory criteria is
entitled to DNA testing of evidence relevant to the crime of
which he was convicted.
5
No. 2015AP202-CR.pdr
C. Denny's Motion for DNA Testing
¶96 In the present case, we must decide whether Denny
satisfied the criteria set forth in Wis. Stat. § 974.07(7)(a).
Contrary to the majority, I would conclude that Denny has met
the statutory requirements, and therefore his motion for
postconviction DNA testing must be granted.
¶97 Without discussion of the remaining statutory
requirements,4 the majority concludes that Denny has not
fulfilled the second statutory criteria. In essence, the
majority holds that it is not "reasonably probable that [Denny]
would not have been prosecuted. . . [or] convicted of his crime
if exculpatory [DNA] testing results had been available."5
¶98 Consistent with the circuit court's analysis, the
majority reasons that the State did not present this to the jury
as a single-perpetrator crime. The majority's analysis can be
summed up simply: the State theorized that other individuals
were involved in the crime, and some witnesses testified that
Denny was minimally involved, so a lack of Denny's DNA on the
4
There is no dispute that Denny has satisfied the other
three statutory requirements. First, as required by
§ 974.07(7)(a)1., Denny has consistently maintained his
innocence. See Denny's motion for postconviction DNA testing
(May 1, 2013). Likewise, Denny has satisfied the criteria set
forth in the third factor: the DNA evidence is relevant; in the
possession of the Ozaukee County Clerk of Courts office, which
is a government entity; and neither party contends that the
evidence has previously been tested. Similarly, Denny satisfied
the fourth criteria as the State does not contend that the
evidence has been tampered with or that the chain of custody has
been broken, and nothing in the record suggests otherwise.
5
Majority op., ¶76.
6
No. 2015AP202-CR.pdr
objects retrieved from the scene of the crime is not
exculpatory.
¶99 However, the majority's conclusion is misplaced for
two interrelated reasons. First, it understates the importance
of the manner in which the State actually tried the case.
Specifically, the State presented witness after witness that
testified Denny was at the scene of the crime, including
specific details about Denny's active participation in
physically attacking Mohr. Second, if Denny's DNA is not found
on any of the objects for which DNA testing is sought, the
majority's analysis undervalues the potential of this lack of
DNA evidence. This is so because it would suggest that
testimony placing Denny at the scene of the crime and physically
attacking Mohr was not reliable.
¶100 For example, Trent Denny, Denny's brother, testified
that Denny admitted he had stabbed Mohr. According to Trent,
Mohr "was coming after [Denny] while [Denny] was stabbing him."
Another witness, Lori Ann Jastor Commons, related that Kent
stated Denny had stabbed Mohr. Steven Hansen testified at trial
that Denny had kicked Mohr. Patricia Robran testified that
Denny had informed her 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." An inmate
at Ozaukee County Jail testified that Denny confessed he "hit
[Mohr] over the head with a bong and kicked him a couple times."
Tammy Whitaker testified that Denny told her two versions of how
7
No. 2015AP202-CR.pdr
the murder occurred, both of which involved Denny's active
participation in the murder. Another witness testified that
Denny stated he had a scratch on his leg where Mohr had
scratched him during their struggle.
¶101 Consequently, the State relied on the testimony of
numerous witnesses to prove Denny's direct involvement in the
murder by physically attacking Mohr. DNA testing of the
evidence from the scene of the crime may well impact whether
this testimony about Denny's involvement was true. Stated
otherwise, if none of Denny's DNA is on any of the articles for
which DNA testing is requested, the jury could have a reasonable
doubt whether Denny committed the crime.
¶102 Additionally, this is not a case in which a dearth of
material recovered from the scene of the crime would make DNA
testing futile; rather, the police obtained numerous articles
that likely contain DNA. The sheer number of articles to be
tested makes Denny's point all the more compelling. If he was
actively involved in the murder by physically attacking Mohr,
one or more of the objects should contain traces of his DNA.
And, as discussed above, Wis. Stat. § 974.07(7)(a)2. requires us
to assume that there will be no trace of Denny's DNA because we
assume the evidence is exculpatory as we consider whether to
grant his postconviction motion.
¶103 A brief description of what the police recovered from
the scene of the crime is helpful to understand the import of
this evidence. When police arrived at the scene, a bong pipe
was shattered around Mohr's body. An officer that was at the
8
No. 2015AP202-CR.pdr
crime scene testified that there were large amounts of blood on
pieces of the bong pipe. Denny seeks testing of this pipe and
its broken pieces to determine if it contains DNA. The bong
pipe is particularly relevant to Denny's claim of innocence
because the State presented testimony at trial that Denny struck
Mohr in the head with the bong pipe. A lack of Denny's DNA on
the bong pipe could suggest that Denny had not touched it, and
directly undermine this trial testimony.
¶104 Moreover, Denny seeks testing of several hairs that an
officer found in Mohr's left hand. It requires little
speculation to surmise that these hairs likely belong to an
individual that was actively involved in the crime. And the
State presented testimony at trial that Denny was one of these
individuals. If the hairs do not belong to Denny, it could lead
a juror to doubt testimony about his active involvement.
¶105 The same analysis applies to the numerous strands of
hair stuck to Mohr's body by dried blood. The State's theory of
the crime involved a struggle between Denny and Mohr. And,
several witnesses testified that Denny stabbed Mohr. A juror
could justifiably question the credibility of this testimony if
none of the hairs found belonged to Denny.
¶106 Accordingly, the articles that Denny seeks to have
tested for DNA are not only numerous, but also highly relevant
to the testimony the State presented against Denny at trial.
Evidence that could show Denny was not at the scene of the crime
could affect the credibility of the State's witnesses.
9
No. 2015AP202-CR.pdr
¶107 Of course, this is not to imply that the testimony
against Denny at trial was not substantial. Yet, if the large
quantity of evidence found at the scene is presumed to be
exculpatory, i.e. none of it contains Denny's DNA, then the
testimony proffered against Denny at his trial would be
significantly undercut. And, this is where the majority errs.
It does not adequately view the evidence in light of the State's
trial presentation of the case.
¶108 If the DNA testing shows none of Denny's DNA, given
the State's trial presentation of the case, it is reasonably
probable that one or more jurors would have had reasonable doubt
as to Denny's involvement in the crime. Stated more fully, one
juror could have concluded that the State's theory that Denny
actively participated in the murder of Mohr was untenable given
the lack of Denny's DNA at the scene of the crime, which could
suggest that Denny was not there.
¶109 Accordingly, I conclude that Denny is entitled to
forensic DNA testing in the present case. Finally, I note that
Denny is not necessarily entitled to a new trial regardless of
the results of the DNA tests. Supreme court review is limited
to whether Denny met the statutory criteria to entitle him to
DNA testing.6
6
Likewise, I do not address whether this testing should be
at Denny's or the public's expense as that is a matter reserved
for the circuit court.
10
No. 2015AP202-CR.pdr
III. CONCLUSION
¶110 In light of the foregoing, although the majority
opinion correctly overrules Moran's interpretation of Wis. Stat.
§ 974.07(6), in which decision I concur, I dissent from its
conclusion affirming the circuit court's refusal to order
forensic DNA testing. Accordingly, I would affirm the court of
appeals, although on a different basis, and I respectfully
concur in part and dissent in part from the majority opinion.
11
No. 2015AP202-CR.ssa
¶111 SHIRLEY S. ABRAHAMSON, J. (dissenting). I join
Justice Ann Walsh Bradley's excellent dissent.
¶112 I write separately on the substance of the order the
court issued on August 12, 2016. The order denied Jeffrey C.
Denny's (the defendant's) motion to strike Issue III of the
State of Wisconsin's opening brief. My separate writing at that
time stated I would be filing this writing.1
¶113 Let me set the background for this separate writing.
The State petitioned the court for review, seeking reversal of
the decision of the court of appeals. The court granted the
State's petition.
¶114 The State filed its initial brief in this court. The
defendant, Jeffrey Denny, moved to strike the third issue of the
State's initial brief, i.e., whether this court's decision in
State v. Moran,2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884,
should be overruled. The court denied the motion on August 12,
1
I wrote as follows on the order dated August 12, 2016:
I write to note my objections to the procedure
followed in issuing this order and the substance of
the order. Chief Justice Roggensack ordered the
release of this order despite my request that it be
held pending my completion of research and writing a
dissent to be circulated at the beginning of this
coming week. Issuing the order next week would not
delay the oral argument of this case at the end of
October. Justice Ann Walsh Bradley's vote was
awaiting her reading my dissent. I thus note my
objections at this time; a separate writing will
follow.
I wrote my procedural objection in my writing on August 12,
2016. I now write my objection on the substance of the order
denying the defendant's motion to strike.
1
No. 2015AP202-CR.ssa
2016, without explanation. I would have either granted the
motion or denied the motion to strike part of the State's brief.
In either event I would have advised the State it had erred in
briefing the issue without seeking the court's consent to do so.
¶115 The rules of appellate practice support the
defendant's motion. The rules of appellate practice do not
support the court's order denying the defendant's motion without
commenting on the rule of appellate practice involved.
¶116 I write because this is not the only case in which the
court seems to be ignoring the rules of appellate practice. The
litigants ought to know whether the court is adhering to its own
rules of appellate practice, so they can determine whether they
should adhere to the appellate practice rules.
¶117 The rules provide that a petition for review "must
contain [a] statement of the issues the petitioner seeks to have
reviewed . . . ." See Wis. Stat. (Rule) § 809.62(2)(a).
Furthermore, the rules clearly state the consequences for
failure of the petition for review to state an issue to be
reviewed: "If a petition [for review] is granted, the parties
cannot raise or argue issues not set forth in the petition
unless ordered otherwise by the supreme court." See Wis. Stat.
(Rule) § 809.62(6); Michael Heffernan, Appellate Practice and
Procedure in Wisconsin § 23.8 D (6th ed. 2014); id., § 23.8 D
(Supp. 23-1 Dec. 2015) ("Failure to raise an issue in the
petition for review is deemed a waiver of any claim that the
supreme court should consider the issue.").
2
No. 2015AP202-CR.ssa
¶118 Strict adherence to the statement of the issues in the
petition for review is important for at least two reasons.
¶119 First, the statement of the issues in the petition for
review gives notice to the other party to enable it to respond
to the petition for review.
¶120 Second, the statement of the issues in the petition
for review and the opposing party's response (and sometimes an
amicus curiae filing) are the basis for the court's determining
whether it will grant the petition to decide the issue(s)
presented. If the court grants a petition for review, the court
might accept all issues for review, might limit review to
certain stated issues, or might add one or more issues for
review.
¶121 With this procedure in mind, I turn to the State's
petition for review in the instant case. It raised four issues.2
2
The State's petition for review framed the four issues
presented for review as follows:
1. Did the court of appeals misapply Moran when it
held that a defendant seeking postconviction DNA
testing of "relevant" evidence under Wis. Stat.
§ 974.07(2) need not demonstrate that the
physical evidence "contains biological material
or on which there is biological material" as
provided under subparagraph 974.07(6)(a)2.?
2. In reviewing a motion for DNA testing at State
expense under Wis. Stat. § 974.07(7)(a), must a
circuit court always assume that a DNA test
result will be exculpatory?
3. In assessing whether it is "reasonably probable"
that a defendant would not have been convicted if
exculpatory DNA results had been available,
(continued)
3
No. 2015AP202-CR.ssa
No issue sought the overruling of this court's decision in
Moran. The petition for review refers to the interpretation and
application of Moran in the instant case, not its overruling.
¶122 The State's brief in this court now raises three
issues, one seeking the overruling of the Moran case.3
¶123 The order granting the State's petition for review
(which was the court's standard order granting a petition for
review) succinctly limited the issues to be briefed or argued by
the State as follows: The State "may not raise or argue issues
should a circuit court apply a newly discovered
evidence standard?
4. Did the circuit court erroneously exercise its
discretion under Wis. Stat. § 974.07(7)(a) when
it found that the jury would have convicted Denny
even if exculpatory DNA results were present?
3
The State's initial brief framed the three issues
presented as follows:
1. To obtain post-conviction DNA testing of
evidence, must the movant show that the evidence
"contains biological material" that "will be
relevant to his prosecution," State v. Moran,
2005 WI 115, ¶¶3, 46, 284 Wis. 2d 24, 700
N.W.2d 884?
2. To obtain post-conviction DNA testing at state
expense, must the movant also show that there is
a "reasonable probability that a jury,"
considering exculpatory DNA results, "would have
reasonable doubt as to the defendant's guilt,"
State v. McCallum, 208 Wis. 2d 463, 475, 561
N.W.2d 707 (1997)?
3. Should this court overrule State v. Moran, 2005
WI 115, 284 Wis. 2d 24, 700 N.W.2d 884?
4
No. 2015AP202-CR.ssa
not set forth in the petition for review unless otherwise
ordered by the court."
¶124 It is not always easy to tell the difference between
an issue, an argument, and a subsidiary issue.4 A subsidiary
issue is deemed to be included in the statement of an issue.
Wis. Stat. § 809.62 (4)(a).
¶125 In the instant case it is easy to conclude that the
request to overrule Moran is an issue, not an argument or a
subsidiary issue. Requesting the court to overturn a prior
decision has not been viewed by this court as an argument (when
the petition for review seeks interpretation of the decision)
and has not been viewed as subsidiary to the issue of
interpreting and applying a prior court decision.
¶126 The State conceded in its initial brief that it did
not raise the issue of overruling Moran in its petition for
review. The State's brief at 41, n.11 states: "The Court may
consider this argument [of overruling Moran] even though it was
not expressly raised in the Petition for Review." In its reply
to the defendant's motion to strike this argument, the State's
defense was that the need to raise an issue in the petition for
review is only a "general rule," "not a hard-and-fast rule" that
bars briefing in every case. The State cites no case or other
authority supporting its contention that the need to raise an
issue in the petition for review is only a general rule that
does not bar briefing in every case. I could find none.
4
Michael Heffernan, Appellate Practice and Procedure in
Wisconsin § 3.4 at 4 (6th ed. 2014; Supp. 3-2 Dec. 2015).
5
No. 2015AP202-CR.ssa
¶127 The State bases its right to brief the issue of
overruling Moran on the court's discretion to consider issues
not raised by the petition for review. The court does have the
power to consider issues not raised by the petitioner.5 But the
court's power to consider issues not raised by the petitioner
does not pass to the State (or any petitioner filing a petition
for review) the right to brief issues it did not raise in its
petition for review. If a petitioner wishes to raise a new
issue, it must seek the court's consent. Michael Heffernan,
5
If this court addresses an issue not raised by the
parties, the court should give the parties an opportunity to
tackle the issue. A defendant has a due process right to notice
of issues to be resolved and to be heard in a meaningful way.
See, e.g., Lankford v. Idaho, 500 U.S. 110, 126 (1991) (notice
of "issues to be resolved by the adversary process is a
fundamental characteristic of fair procedure"); California v.
Trombetta, 467 U.S. 479, 486 (1984) ("criminal prosecutions must
comport with prevailing notions of fundamental fairness");
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950) (due process requires that "adjudication be preceded by
notice and opportunity for hearing appropriate to the nature of
the case"); City of Janesville v. CC Midwest, Inc., 2007 WI 93,
¶68, 302 Wis. 2d 599, 734 N.W.2d 428 (Bradley, J., concurring)
("The rule of law is generally best developed when issues are
raised by the parties and then tested by the fire of adversarial
briefs and oral arguments."); Bloomer v. Gibson, 912 A.2d 424,
433–34 (Vt. 2006) ("The opportunity to present arguments on the
legal issue upon which a case is to be decided is fundamental to
sound legal process . . . .") (citing Adam A. Milani & Michael
R. Smith, Playing God: A Critical Look at Sua Sponte Decisions
by Appellate Courts, 69 Tenn. L. Rev. 245 (2002).
6
No. 2015AP202-CR.ssa
Appellate Practice and Procedure in Wisconsin § 23.14 at 17 (6th
ed. 2014).6
¶128 In sum, adhering to the rules of appellate practice
and procedure, I would have either granted the motion to strike
or denied the motion to strike but advised the State it had
erred in briefing the issue without seeking the court's consent
to do so.
¶129 Fortunately, the defendant in the instant case had an
opportunity to respond to the State's challenge to the Moran
case. The first issue the defendant addressed in its brief was
whether the court should abandon the court's unanimous “plain
language” reading of Wis. Stat. § 974.07 in Moran.
¶130 I join Justice Ann Walsh Bradley's dissent, and for
the reasons set forth I write separately on an issue Justice Ann
Walsh Bradley's dissent does not address.
6
In a recent case, Coyne v. Walker, 2016 WI 38, 368
Wis. 2d 444, 879 N.W.2d 520, the court recognized that an
argument to overrule a prior decision raises a different issue
than an argument relating to the interpretation and application
of the prior case. The parties' briefs in Coyne argued about
the interpretation and application of Thompson v. Craney, 199
Wis. 2d 674, 546 N.W.2d 123 (1996). The amicus brief in Coyne
argued that the Craney case should be overruled. Because the
court was going to consider this new issue raised by the amicus,
the court allowed the parties to brief this new issue.
7
No. 2015AP202-CR.awb
¶131 ANN WALSH BRADLEY, J. (dissenting). One of the
essential tenets of our criminal justice system is that the
"administration of justice is and should be a search for the
truth." Garcia v. State, 73 Wis. 2d 651, 655, 245 N.W.2d 654
(1976). It is undisputed that DNA testing is "one of the most
significant scientific advancements of our era" and the most
powerful technology we have for revealing the truth. Maryland
v. King, 133 S. Ct. 1958, 1966 (2013).
¶132 Making several missteps along the way, the majority
limits the contours of this search. Dedicating almost half of
its lengthy opinion to an exposition of the facts, it emphasizes
the strong evidence of Denny's guilt as a reason to circumscribe
his ability to conduct DNA testing. Of course there is strong
evidence of guilt. Denny, as well as the multitude of convicted
persons who have been exonerated after DNA testing, were all
found guilty beyond a reasonable doubt.
¶133 The question is not whether there is strong evidence
of guilt. Rather, the question is whether the legislature has
written a statute that gives Denny the opportunity to test
evidence that has the potential to exonerate him. More
precisely, at issue in this case is whether Wisconsin's post-
conviction DNA testing statute allows a defendant to test, at
his own expense, evidence containing biological material that is
relevant to the investigation or prosecution that resulted in
his conviction.
¶134 This same question was answered eleven years ago, when
this court unanimously determined that the plain meaning of the
1
No. 2015AP202-CR.awb
post-conviction DNA testing statute "gives the defendant the
right to test the sought-after evidence . . . ." State v.
Moran, 2005 WI 115, ¶57, 284 Wis. 2d 24, 700 N.W.2d 884.
Nothing in the DNA testing statute has changed in the decade
since this court decided Moran, nor has the State presented any
evidence that the statute has been unworkable in practice. The
only thing that has changed is the composition of this court.
¶135 In reaching its conclusion, the Moran court issued an
invitation to the legislature. See id., ¶56 ("We encourage the
legislature to revisit Wis. Stat. § 974.07 . . . ."); see also
id., ¶59 (Wilcox, J. concurring) (" . . . I strongly urge the
legislature to take a hard look at the practical consequences of
[subsection (6)].").
¶136 The legislature did not respond to the invitation.
Throwing caution (as well as any semblance of judicial
restraint) to the wind, the majority steps in to perform the
legislature's job.
¶137 It now overrules Moran and runs roughshod over the
fundamental doctrine of stare decisis. To justify overturning
unanimous precedent, the majority unearths a heretofore unknown
test which it labels "principles of policy." Majority op., ¶71.
Apparently not very convinced of the legitimacy of its own
discovery, the majority obscures the application of the new test
by tucking it away in a footnote. Id., ¶70 n.16.
¶138 In overruling Moran, not only does the majority apply
a test that courts have never before used, it also attempts to
justify its action by relying on an "imagine[d]" purpose that
2
No. 2015AP202-CR.awb
the legislature never stated. Garnering a trifecta of "nevers,"
it then embarks upon rewriting the plain meaning of Wis. Stat.
§ 974.07 by inserting a limitation that the legislature never
created.
¶139 Ultimately, the majority arrives at a determination
that pursuant to Wis. Stat. § 974.07(6), all Denny can do is
look at evidence with the naked eye when its potential to
exonerate him is invisible until it is tested. Id., ¶71. Such
a useless procedure renders the majority's determination absurd.
¶140 The majority further missteps when it deprives Denny
of the opportunity to test for potentially exculpatory evidence
under an alternative statutory procedure. Whether analyzed
under Wis. Stat. § 974.07(6) or (7), the majority impedes the
search for the truth by erroneously limiting access to post-
conviction DNA testing.
¶141 Contrary to the majority, I would adhere to this
court's unanimous decision in Moran. The plain meaning of Wis.
Stat. § 974.07(6) gives the defendant the right to test, at his
own expense, evidence containing biological material that is
relevant to the investigation or prosecution that resulted in
his conviction. In the alternative, I conclude that Denny has
met the requirements under Wis. Stat. § 974.07(7)(a) for post-
conviction DNA testing.
¶142 Accordingly, I respectfully dissent.
I
¶143 This court follows the doctrine of stare decisis
"scrupulously because of our abiding respect for the rule of
3
No. 2015AP202-CR.awb
law." Johnson Controls Inc. v. Employers Ins. of Wausau, 2003
WI 208, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257. A court's decision
to depart from precedent is not to be made casually and we
should not depart from precedent without sufficient
justification. Id.
¶144 In this case "stare decisis carries enhanced force"
because this court's decision in Moran interpreted a statute.
See Kimble v. Marvel Ent., LLC, 135 S. Ct. 2401, 2409 (2015)
(without "special justification," the decision to correct
statutory interpretation should be left to the legislature); see
also State v. Lynch, 2016 WI 66, ¶¶208-209, 371 Wis. 2d 1, 885
N.W.2d 1 (Ziegler, J., dissenting) ("[I]t is not alone
sufficient that we would decide a case differently now than we
did then. To reverse course, we require as well what we have
termed a 'special justification'——over and above the belief
"that the precedent was wrongly decided.") (quoting Kimble, 135
S. Ct. at 2409).
A
¶145 By overruling Moran, the majority disregards the
fundamental principle of stare decisis and manufactures a
heretofore unknown test for overturning precedent.
¶146 According to the majority, its decision to overrule
Moran is justified because stare decisis is a "'principle of
policy,' rather than an 'inexorable command.'" Majority op.,
¶71 (citing Hohn v. United States, 524 U.S. 236, 251 (1998)
(quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991))). In
Johnson Controls, this court explained what is meant by the
4
No. 2015AP202-CR.awb
phrase "principle of policy." Stare decisis is a "principle of
policy" because it is "a policy judgment that 'in most matters
it is more important that the applicable rule of law be settled
than that it be right.'" Johnson Controls, 264 Wis. 2d 60, ¶97.
¶147 In asserting that "sometimes stare decisis must yield
to other important principles of policy," the majority blatantly
mischaracterizes the law. Majority op., ¶71. It transposes the
single stated "principle of policy" underlying stare decisis
(that settled law is of the utmost importance), into an unknown
and potentially unlimited number of "principles of policy" that
could justify overruling precedent. What are these principles?
Whose are they? Are they legislative policies or policies that
this court develops as the need arises?
¶148 Further, the majority fails to meet its newly minted
"principles of policy" test because it does not offer a
compelling policy reason for overturning Moran. Indeed, the one
policy the majority identifies is one it admits is "not
dispositive in the case at issue . . . ." Id., ¶70 n.16.
¶149 Apparently not convinced about the legitimacy of its
principle of policy, the majority tucks it away in a footnote——
asserting that overruling Moran is "the best way to protect the
rights and interests of crime victims in Wisconsin." Id., ¶70
n.16.
¶150 The majority's footnoted justification for overruling
Moran is at odds with the rational offered by now-governor Scott
Walker who co-authored this legislation. In an interview, then
former state representative Scott Walker explained that post-
5
No. 2015AP202-CR.awb
conviction DNA testing is focused on keeping us all safe——
victims and the public alike:
Whether it's proving someone's guilt or someone's
innocence, in either case, it keeps us safer because
if somebody is innocent, that means somebody who's
guilty is still out there, and we can use that
evidence to get them off the streets.1
¶151 Unsurprisingly, there is nothing in the record
indicating that victims have suffered any more harm since Moran
was decided. Faced with this void in the record, the majority
resorts to imagination: "it is not difficult to imagine why
such testing might cause significant distress to
victims . . . ." Majority op., ¶70 n.16.
¶152 Based on this speculation, supported and advanced by
its collective imagination, the majority divines a "principle of
policy" in its attempt to justify overruling Moran. It
concludes that upholding Moran "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." Id., ¶70 n.16.
¶153 The rights and interests of crime victims are
undeniably important considerations, which the legislature has
already addressed through the notice provisions in Wis. Stat.
1
Dee J. Hall, Nine people freed on strength of DNA testing
in Wisconsin, WisconsinWatch.org, Dec. 13, 2009,
http://wisconsinwatch.org/2009/12/nine-people-freed-on-strength-
of-dna-testing-in-wisconsin/.
6
No. 2015AP202-CR.awb
§ 974.07(4).2 However, relying on an "imagined" policy reason to
limit the availability of DNA testing strays too far from
subsection (4)'s victim-notification mandate. See State ex rel.
Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶48, 271
Wis. 2d 633, 681 N.W.2d 110. There is nothing in the text of
the statute that suggests the legislature intended to limit
post-conviction DNA testing due to the speculative concerns the
majority identifies here.
¶154 Contrary to the majority's assertions, allowing DNA
testing does not undermine finality or lead to "the possibility
of 'inequitable results'" due to "open[ing] up cases that have
long been thought by everyone, including crime victims, to be
final." Majority op., ¶70 n.16 (citation omitted). Performing
DNA testing on relevant evidence is only the first step in a
process where the defendant must next demonstrate that the
results of the testing support his claim. See Moran, 284
Wis. 2d 24, ¶47 (allowing DNA testing does not guarantee a new
trial or even an evidentiary hearing).
¶155 If the DNA test results do not support a defendant's
claim, the case is not reopened. And if the DNA testing results
do support a defendant's claim of innocence, victims will have
little interest in finality if the true criminal perpetrator is
still at large. See majority op., ¶70 n.16.
2
Pursuant to Wis. Stat. § 974.07(4)(a), if a motion for
post-conviction DNA testing is made under sub. (2), the circuit
court shall send a copy of the motion to the victim. Likewise,
if a hearing on the motion is scheduled, a notice of the hearing
shall be sent to the victim. Wis. Stat. § 974.07(4)(a).
7
No. 2015AP202-CR.awb
¶156 Likewise, there is no evidence that post-conviction
DNA testing has lead to "inequitable results." If the majority
intends to speculate that post-conviction DNA testing might lead
to the "possibility" of wrongfully exonerating a criminal
defendant, it has a very steep hill to climb. The State has
introduced no evidence that legitimate convictions have been
overturned. Additionally, courts have widely acknowledged that
DNA testing is unparalleled in its ability to exonerate the
wrongly convicted and identify the guilty. Maryland v. King,
133 S. Ct. at 1966.
B
¶157 Turning away from the majority's newly created
"principles of policy" test and instead considering the well-
established criteria this court has always applied in
determining whether it may overrule precedent, it becomes clear
why the majority saw the need to create a new test justifying
its decision. This case satisfies none of the well-established
criteria that would warrant departing from the doctrine of stare
decisis and overruling Moran.
¶158 In Johnson Controls, we identified several criteria in
Wisconsin for overruling our prior cases: (1) if "changes or
developments in the law have undermined the rationale behind a
decision"; (2) "there is a need to make a decision correspond to
newly ascertained facts"; or (3) "there is a showing that the
precedent has become detrimental to coherence and consistency in
the law." 264 Wis. 2d 60, ¶98. We explained further that other
"relevant considerations in determining whether to depart from
8
No. 2015AP202-CR.awb
stare decisis are whether the prior decision is unsound in
principle, whether it is unworkable in practice, and whether
reliance interests are implicated." Id., ¶99.
¶159 Addressing the first two factors, the majority argues
that the Moran court did not consider Wis. Stat. § 974.07(12) in
reaching its analysis. Majority op., ¶70 (citing Johnson
Controls, 264 Wis. 2d 60, ¶98). According to the majority,
"[r]econsideration of the statute with the benefit of a clear
understanding of [subsection (12)] convinces us that our
interpretation of sub. (6) must be modified to take account of
sub. (12)." Id.
¶160 The majority's analysis suffers from a glaring
mistake. Subsection (12) was a part of the statute at the time
Moran was decided and has not been changed in the interim.
Although the majority may place a different emphasis on
subsection (12) than did the Moran court, it would be
meaningless to require "changes or developments in the law" if
those changes originate from only this decision. Likewise,
there are no newly ascertained facts in this case aside from the
majority's new interpretation of the statute.
¶161 Equally flawed are the majority's unsubstantiated
claims that Moran's interpretation of Wis. Stat. § 974.07(6) has
"become detrimental to coherence and consistency in the law,"
that it has rendered "the rest of the statute incoherent in a
manner we obviously did not contemplate in Moran," and that it
is "unsound in principle." Id. (citing Johnson Controls, 264
Wis. 2d 60, ¶¶98-99).
9
No. 2015AP202-CR.awb
¶162 The sole justification the majority offers here is
that "allowing testing under sub. (6) would require only the
barest of showings." Id., ¶66. According to the majority, it
is "difficult to believe that the statute is most properly read
to permit convicted offenders who are unable to meet the
surmountable sub. (7) standard to engage in postconviction
fishing expeditions in attempts to cast doubt upon and upset
those convictions." Id.
¶163 The majority's prospective concerns carry little
weight when there is no evidence that Moran's interpretation of
the statute has lead to frivolous requests for testing over the
last decade. Indeed, the State has offered no evidence that it
has been overwhelmed by demands for post-conviction DNA testing
or that legitimate convictions have been overturned.
¶164 At oral argument, Denny's counsel explained that the
Wisconsin Innocence Project "probably does the vast majority, if
not almost all of the post-conviction DNA testing in this
State."3 Counsel affirmed that there are very few post-
conviction motions for DNA testing filed each year, explaining
that "we're talking about a handful of cases each year. There's
no overwhelming burden on the system. It's a handful of cases."
3
The Wisconsin Innocence Project (WIP) is a clinical legal
education program that is part of the Frank J. Remington Center
at the University of Wisconsin Law School. It seeks to
"exonerate the innocent, educate students, and reform the
criminal justice system by identifying and remedying the causes
of wrongful convictions." Wisconsin Innocence Project,
University of Wisconsin Law School,
http://law.wisc.edu/fjr/clinicals/ip/index.html.
10
No. 2015AP202-CR.awb
¶165 Contrary to the majority's assertions, there is no
evidence that Moran's interpretation of the post-conviction DNA
testing statute is incoherent or inconsistent in ways that have
become detrimental to the law. In fact, it appears that the
current statutory scheme has worked well for both defendants and
the State.
¶166 Post-conviction DNA testing pursuant to subsection (6)
avoids litigation and saves judicial resources because a
defendant does not need a court order to test evidence.
Additionally, it saves the State the cost of paying for the
testing and relieves the State from having to acknowledge that
the defendant has met the reasonably probable standard set forth
in Wis. Stat. § 974.07.
¶167 Given the legal and logical gymnastics the majority
performs in order to justify overruling Moran, one would hope
that its decision at least advances a sound interpretation of
the statute. Unfortunately, such hope is unrealized.
II
¶168 By rewriting Wis. Stat. § 974.07, the majority inserts
a limitation the legislature never created and arrives at an
unreasonable and absurd result.
¶169 In Moran, this court determined that if a defendant
met the threshold requirements set forth in Wis. Stat.
§ 974.07(2), he had two avenues for pursuing post-conviction DNA
testing.4 284 Wis. 2d 24, ¶55. Moran explained that "the
4
Wis. Stat. § 974.07(2) provides in relevant part that a
defendant may bring a motion for an order requiring DNA testing
(continued)
11
No. 2015AP202-CR.awb
statutory text makes clear that subsections (6) and (7) are
intended for different purposes." Id. Subsection (6) allows a
defendant access to test results and evidence containing
biological material, but he must decide whether to test the
material and pay for the testing himself.5 Id. Subsection (7)
pertains to court-ordered testing at the State's expense. Id.6
if the evidence: (a) is relevant to the investigation or
prosecution that resulted in the conviction; (b) is in the
actual or constructive possession of a government agency; and
(c) has not been previously subject to DNA testing or, if it has
been previously tested, it may now be tested again using a
technique not previously available or utilized and that provides
a reasonable likelihood of more accurate and probative results.
5
Wis. Stat. § 974.07(6)(a) provides in relevant part:
(6)(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
available to the movant or his or her attorney the
following material:
. . .
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 materials.
6
Wis. Stat. § 974.07(7)(a) provides in relevant part:
A court in which a motion under sub. (2) is filed
shall order forensic deoxyribonucleic acid testing if
all of the following apply:
1. The movant claims that he or she is innocent
of the offense at issue in the motion under sub.
(2).
2. It is reasonably probable that the movant
would not have been prosecuted [or] convicted
. . . if exculpatory deoxyribonucleic acid
(continued)
12
No. 2015AP202-CR.awb
¶170 The majority does not dispute that "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)) . . . " Majority op., ¶67.7
However, it overrules Moran because "we do not find this to be
the most sensible interpretation of the statute." Id.
¶171 Contrary to Moran, the majority now concludes that all
motions for post-conviction DNA testing must proceed by court-
order under Wis. Stat. § 974.07(7). Id., ¶68. Additionally,
the majority determines that Wis. Stat. § 974.07(6) allows a
defendant with only the naked eye to look at, but not test,
relevant evidence containing biological material. Id.
testing results had been available before the
prosecution [or] conviction . . .
Wis. Stat. § 974.07(7)(b) provides in relevant part:
A court in which a motion under sub. (2) is filed may
order forensic deoxyribonucleic acid testing if all of
the following apply:
1. It is reasonably probable that the outcome of
the proceedings that resulted in the
conviction . . . would have been more favorable
to the movant if the results of deoxyribonucleic
acid testing had been available before he or she
was prosecuted [or] convicted . . .
7
The payment of costs for post-conviction DNA testing are
set forth in Wis. Stat. § 974.07(12). Subsection 12(a) provides
that a 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." Subsection (12)(c) provides
that "[t]he state crime laboratories shall pay for testing
ordered under this section . . . if the court does not order the
movant to pay for testing."
13
No. 2015AP202-CR.awb
¶172 Not only are the majority's complaints about Moran
unpersuasive,8 its analysis violates a basic premise that it is
the legislature that writes the statutes——not the courts. The
majority usurps the legislature's role when it writes its own
inspection limitation into subsection (6) that prohibits DNA
testing of evidence.9
8
The majority asserts that Moran erred in its statutory
interpretation because:
 Subsection (6) says nothing about allowing the movant
to conduct forensic testing or sending the evidence
away for testing. Majority op., ¶64.
 Moran did not discuss subsection (12). Id., ¶67.
 Subsection (6) does not reference testing by "court
order" like other subsections in the statute. Id.,
¶68.
Each of these points are easily rebutted:
 Even the majority acknowledges that "sub. (6) does not
explicitly prohibit a movant from testing evidence,
either." Id., ¶64.
 Moran harmonized subsection (12) with subsections (6)
and (7) when it determined that one provided for
private payment of costs and the other provided for
public payment of costs. See 284 Wis. 2d 24, ¶57.
 There is no reason why DNA testing must proceed by
court-order unless the court is ordering the State to
conduct and pay for the costs of that testing.
9
Not only does the majority fail to exercise deference to
the legislature, its decision in this case is out of step with
the legislature's commitment to utilizing DNA testing. For
example, the legislature recently enacted 2013 Wis. Act 20,
which expanded the collection, analysis, and maintenance of DNA
samples as part of a larger initiative to expand the State's DNA
databank. See, e.g., Wis. Stat. § 165.77(2)(a)1&3 (setting
forth the requirement that the DOJ provide for the analysis of
collected samples and maintain a state DNA databank).
14
No. 2015AP202-CR.awb
¶173 In contrast, the Moran court explicitly declined to
"add language to the statute in order to justify the State's
interpretation." Moran, 284 Wis. 2d 24, ¶39. After careful
analysis, the Moran court determined that "[w]e 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." Id., ¶54.
¶174 Additionally, the majority violates a well-established
canon of statutory construction that we interpret statutes
"reasonably, to avoid absurd or unreasonable results." Kalal,
271 Wis. 2d 633, ¶46. The majority's interpretation of the
statute, unlike the interpretation set forth in Moran, leads to
an absurd and unreasonable result because without DNA testing,
the ability only to look at evidence containing biological
material is essentially useless.
¶175 Apparently recognizing this fundamental flaw in its
reasoning, the majority asserts that "the facts in the case at
issue demonstrate why inspection is useful." Majority op., ¶71
n.17. It then explains that in his supplemental motion for
post-conviction DNA testing, Denny reviewed the physical
evidence on file and identified additional relevant items that
were previously overlooked. Id. Thus, according to the
majority, "the ability to inspect allows one to ascertain what,
if any, testing should be sought." Id.
¶176 Contrary to the majority's explanation, the facts of
this case demonstrate the futility of examining evidence without
15
No. 2015AP202-CR.awb
being able to test it. Although Denny identified additional
relevant items that were overlooked, there is nothing he can do
with that evidence.
¶177 According to the majority, he can no longer test the
evidence at his own expense pursuant to subsection (6) and the
majority has denied his claim for court-ordered testing pursuant
to subsection (7). All Denny can do is look at the evidence
when its potential to exonerate him is invisible until it is
tested. This is an absurd and unreasonable result that
contravenes the plain language of the statute.
III
¶178 Finally, I address the majority's conclusion that
Denny's motion for post-conviction testing does not entitle him
to court-ordered testing pursuant to Wis. Stat. § 974.07(7)(a)2.
According to the majority, Denny has failed to meet the
reasonably probable standard. It determines that "[e]ven 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 because of his crime." Id., ¶81.
¶179 The majority begins by correctly stating that for the
purposes of this analysis, we are to assume that if DNA testing
were to occur, the results would be exculpatory. Id., ¶76. It
errs, however, when it denies Denny the opportunity to test
potentially exculpatory evidence by failing to acknowledge how
the witness testimony could be undermined by exonerating DNA-
evidence.
16
No. 2015AP202-CR.awb
¶180 Rather than analyze the testimony against Denny in the
context of exculpatory physical evidence, the majority rests its
analysis on the broad assertion that "[t]he evidence
incriminating Denny was, to put it mildly, extensive." Id.,
¶77; see also id., ¶81 (citing State v. Denny, 2016 WI App 27,
¶86, 368 Wis. 2d 363 (Hagedorn, J., concurring in part and
dissenting in part) ("As put by the separate writing below,
'[t]he evidence was vast, overwhelming, and damning. It was not
even close.'")).
¶181 Although the majority opinion begins with an expansive
exposition of facts, its analysis relies on a brief summary of
the conflicting testimony of multiple unreliable witnesses in
denying Denny's motion for testing. According to the majority,
"[t]estimony indicated that Denny confessed, made inculpatory
statements to, and took inculpatory actions in front of,
multiple witnesses." Id., ¶77.
¶182 The majority's reliance on the "extensive" and
"overwhelming" evidence presented against Denny is misplaced.
It ignores the reality that by definition his conviction was
premised on strong evidence of guilt. Denny, like all convicted
persons who have been exonerated after DNA testing, was found
guilty beyond a reasonable doubt. Additionally, the majority
ignores the ways that witness testimony is undermined by
exonerating DNA-evidence.
¶183 Denny argues that three types of DNA test results
would create a reasonable probability of a different result:
(1) DNA that matches a convicted offender; (2) DNA that excludes
17
No. 2015AP202-CR.awb
Denny and his brother Kent on all items; or DNA on multiple
items matching the same unknown third party ("redundant DNA").
¶184 The majority dispenses with a DNA result that matches
a convicted offender or multiple items matching the same unknown
third party by agreeing with the circuit court that "Mohr's
killing has never been presented as a single-perpetrator
crime . . . " Id., ¶78. Although this is true, the vast
majority of the evidence against Denny was testimony in which
Denny and Kent were the only perpetrators. In a handful of
accounts, an individual named Leatherman was also implicated.
¶185 Contrary to the majority's assertion, DNA evidence
matching an unknown third party or a convicted offender would
undermine every piece of testimony in which Denny and Kent were
presented as the only two perpetrators of the crime. The
majority does not acknowledge this possibility. Instead it
speculates that if more than one person committed the crime,
finding a third person's DNA could not change the result because
any number of people could have committed the crime in addition
to Kent and Denny.
¶186 Further, the majority contends that the absence of DNA
belonging to Denny and Kent would not be "particularly
compelling." Id., ¶78. The majority dismisses the effect of
exculpatory evidence excluding both Denny and Kent because there
was no single account of what transpired in this case and
various inconsistencies among the accounts of the witnesses. As
discussed above, however, Denny and Kent were implicated in
every account of the crime.
18
No. 2015AP202-CR.awb
¶187 Excluding both brothers would undermine all of the
testimony introduced against Denny in which both brothers played
a role in the crime. Given the obvious struggle and the violent
crime scene in which evidence containing DNA was spread
throughout the bedroom and into the hallway, it is reasonably
probable that the result at trial would have been different if
there was no physical evidence connecting Denny and Kent to the
crime.
¶188 The majority even contends that the "various
inconsistencies between the accounts of the witnesses actually
serves to insulate Denny's conviction." Id., ¶78. This strains
credulity, given the fact that the witnesses were unreliable in
various ways, admitting to drug and alcohol use at relevant
times and given grants of immunity so that they would testify.
Rather than weigh the effect of exculpatory DNA evidence against
this unreliable testimony, the majority contends that it is not
persuaded by this argument because the jury was not. Id., ¶80.
This ignores the essential fact that the jury, in weighing the
testimony of the witnesses, was not presented with exculpatory
DNA evidence.
¶189 Ultimately, the majority's summary of conflicting
testimony does not support its conclusion. Given the various
inconsistencies in the testimony from unreliable witnesses, it
is reasonably probable that exculpatory DNA results would have
lead to a different outcome.
IV
¶190 In sum, the majority opinion offers no persuasive
legal, logical or factual reason for its decision to overrule
19
No. 2015AP202-CR.awb
Moran. Instead it discards the doctrine of stare decisis,
unearths a test never before used to justify overruling
precedent, "imagine[s]" a statutory purpose, rewrites the
statute and ultimately ends with an absurd result. And for
what?
¶191 As we learned at oral argument, only a handful of
motions for post-conviction DNA testing are filed each year.
But for the handful of potentially innocent people, the
majority's decision limiting access to post-conviction DNA
testing is devastating.
¶192 Daryl Dwayne Holloway's recent exoneration provides a
compelling example of how Moran's interpretation of the statute
worked well in practice for both the State and defendants. On
October 5, 2016, three weeks before oral argument in this case,
Holloway was exonerated based on new DNA evidence after spending
24 years in prison. At the request of counsel, the State
reviewed the evidence against Holloway and agreed to DNA testing
pursuant to Wis. Stat. § 974.04(6)(a). "In collaboration with
the District Attorney's Office, the Wisconsin Innocence Project
had new DNA testing done." The testing results exonerated
Holloway and "[t]he Milwaukee District Attorney's office and the
Wisconsin Innocence Project drafted a stipulation agreeing that
Holloway's conviction should be vacated . . . ."10
¶193 The prosecutors were praised for taking on the case
and serving as "ministers of justice, not just advocate[s] for
10
Innocence Project, Daryl Dwayne Holloway,
http://www.innocenceproject.org/cases/daryl-dwayne-holloway/.
20
No. 2015AP202-CR.awb
convictions."11 Given the majority's approach, no such accolades
are deserved here.
¶194 If the majority opinion were the law when prior
exonerees sought post-conviction DNA testing, who knows if some
would still be serving time in prison for crimes they never
committed. Rather than retaining an established statutory
pathway enabling a search for the truth, the majority blocks it
and provides yet another avenue for sustaining convictions——even
potentially wrongful convictions.
¶195 Before a jury begins its deliberations, the circuit
judge instructs: "Let you verdict speak the truth, whatever the
truth may be." Such an instruction falls on the deaf ears of
the majority. By erroneously limiting access to post-conviction
DNA testing, it impedes the criminal justice system's search for
truth.
¶196 Contrary to the majority, I would adhere to this
court's unanimous decision in Moran. The plain meaning of Wis.
Stat. § 974.07(6) gives the defendant the right to test, at his
own expense, evidence containing biological material that is
relevant to the investigation or prosecution that resulted in
his conviction. Additionally, the majority errs when it denies
Denny the opportunity to test potentially exculpatory evidence
by failing to acknowledge how the witness testimony could be
undermined by exonerating DNA-evidence.
11
Ashley Luthern, Milwaukee man exonerated by DNA after 24
years in prison, Milwaukee Journal Sentinel, Oct. 5, 2016,
http://www.jsonline.com/story/news/crime/2016/10/05/milwaukee-
man-exonerated-dna-after-24-years-prison/91615854/.
21
No. 2015AP202-CR.awb
¶197 Accordingly, I respectfully dissent.
¶198 I am authorized to state that SHIRLEY S. ABRAHAMSON
joins this dissent.
22
No. 2015AP202-CR.awb
1