State v. Denny
878 N.W.2d 679
Wis. Ct. App.2016Background
- In 1982 Christopher Mohr was found brutally murdered; extensive blood, hairs, a shattered bong, gloves, a bloody hat, a hand towel, and other items were recovered from the scene.
- Jeffrey C. Denny and his brother Kent were tried jointly for first-degree murder; Denny was convicted based primarily on multiple out-of-court inculpatory statements by Denny and others; no physical evidence at trial was matched to Denny.
- Years later (May 2014) Denny moved under Wis. Stat. § 974.07 to have numerous crime-scene items (bong pieces, hairs, towel, gloves, hat, clothing, cup, lighter, screens, masks, etc.) tested for DNA at public or private expense.
- The trial court denied the motion, reasoning the requested items were not the evidence that “resulted in his conviction” (which relied on admissions) and that DNA showing other participants would not exculpate Denny because he was convicted as a party.
- The court of appeals reviewed statutory interpretation de novo and discretionary findings for erroneous exercise of discretion and reversed, ordering DNA testing (public expense) because statutory prerequisites were met and assumed exculpatory results could undermine confidence in the verdict.
Issues
| Issue | Plaintiff's Argument (Denny) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether items are “relevant to the investigation or prosecution” under § 974.07(2)(a) | Items recovered at the scene are relevant because they have any tendency to prove or disprove facts in the investigation and may contain biological material for DNA testing | Items are irrelevant because conviction rested on inculpatory statements, not these items; speculation that items contain DNA is insufficient | Reversed: Relevance is satisfied if the items were recovered in the investigation and could reasonably contain biological material; § 904.01 relevance standard applies |
| Whether movant must show a reasonable likelihood biological material/DNA exists on items before testing | No—statute requires identification of relevant evidence; § 974.07(6)(a) obliges the State to disclose whether items contain biological material | State urged an additional requirement (reasonable likelihood DNA exists) because of concerns about degradation/contamination | Rejected State’s extra burden; movant need only show relevance and State must disclose which items contain biological material |
| Standard for ordering state-funded DNA testing under § 974.07(7)(a)2. (“reasonably probable…would not have been convicted if exculpatory DNA results had been available”) | Apply Strickland’s “undermine confidence” standard (reasonable probability sufficient to undermine confidence in outcome) | Apply the higher newly-discovered-evidence/outcome-determinative test (would jury have reasonable doubt) | Court adopts the undermine-confidence (Strickland) test for this postconviction discovery context and applies it here |
| Whether assumed exculpatory results must be credited and how to assess impact | Exculpatory results must be assumed for the motion and weighed against trial evidence; assume best realistically possible results for movant (e.g., other person’s DNA on items and none of Denny’s) | Argues exculpatory should not be presumed and even if other DNA found it wouldn’t exculpate because Denny convicted as party | Court holds statute requires assuming exculpatory results and weighing them against trial evidence; under that assumption it is reasonably probable Denny would not have been convicted, so testing at state expense ordered |
Key Cases Cited
- State v. Moran, 284 Wis. 2d 24, 700 N.W.2d 884 (statutory framework for DNA testing; private vs public expense) (2005)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633, 681 N.W.2d 110 (statutory interpretation principles) (2004)
- Strickland v. Washington, 466 U.S. 668 (definition of reasonable probability as undermining confidence in the outcome) (1984)
- State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (due-process/materiality standard for postconviction discovery) (1999)
- State v. Hudson, 273 Wis. 2d 707, 681 N.W.2d 316 (prior appellate discussion of § 974.07 guidance) (2004)
- Kyles v. Whitley, 514 U.S. 419 (materiality/reasonable probability framework in Brady context) (1995)