807 N.W.2d 638
Wis. Ct. App.2011Background
- Avery was convicted in 1994 of Malone's and Atari armed robberies and sentenced to 10 and 20 years, consecutive.
- In 2007 Avery moved under Wis. Stat. § 974.06 and § 752.35 for a new trial based on newly discovered photogrammetry of enhanced surveillance video.
- The enhancement technology (VISAR) and photogrammetry were not available at trial; new expert testimony contested the suspect’s height.
- The trial court denied the motion after an evidentiary hearing, finding the new evidence not reasonably likely to change the outcome.
- The appellate court summarily reversed to allow an evidentiary hearing; the subsequent hearing produced conflicting expert analyses concluding the video suspect is shorter than Avery.
- The court ultimately held Avery entitled to a new trial on newly discovered evidence and in the interest of justice, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by weighing competing expert testimony | Avery argues the court trespassed into jury function weighing credibility | State contends the court properly weighed credibility in ruling | Yes; the court erred and must not weigh competing credible evidence. |
| Whether the five-prong test for newly discovered evidence was satisfied | Avery asserts all five prongs were met by the new photogrammetry evidence | State contends the evidence failed to produce a reasonable probability of a different outcome | Yes; the five-prong test was satisfied on the record. |
| Whether § 752.35 supports a new trial because the real controversy was not fully tried | Avery asserts photogrammetry evidence not available at trial means real controversy not fully tried | State maintains no reversal under Hicks/Allen without total destruction of the prosecution’s theory | Yes; real controversy not fully tried, constituting basis for new trial under § 752.35. |
| Whether due process and structure of review require independent assessment of new scientific evidence | Avery argues due process requires independent jury-like assessment of credibility | State argues deference to trial court’s discretion applies | Court must independently assess whether new credible testimony would create reasonable doubt. |
Key Cases Cited
- State v. McCallum, 208 Wis. 2d 463 (Wis. 1997) (establishes test: reasonable probability of a different outcome; jury credibility role)
- State v. Edmunds, 2008 WI App 33 (Wis. Ct. App. 2008) (new trial based on newly discovered evidence—erroneous exercise of discretion if misapplied standard)
- State v. Hicks, 202 Wis. 2d 150 (Wis. 1996) (DNA-like evidence may trigger new trial; not required to fully exonerate to warrant relief)
- State v. Armstrong, 283 Wis.2d 639 (Wis. 2005) (DNA-like identification evidence can warrant new trial when pivotal to State's case)
- State v. Wyss, 124 Wis. 2d 681 (Wis. 1985) (real controversy not fully tried under youthful circumstances; formulation of review under 752.35)