*1 Plaintiff-Respondent,† Wisconsin, State
v. Ralph D. Armstrong, Defendant-Appellant-Petitioner.
Supreme Court argument & Oral No. 2001AP2789 2002AP2979. 12, July
March 2005. Decided
For the the cause was by Sally attorney general, Wellman, L. assistant Lautenschlager, Peggy whom on the briefs was A. attor- ney general. by
An R. amicus curiae brief was filed Robert Henak S.C., Milwaukee, and Henak Law on behalf of the Office, Lawyers. Defense Wisconsin Association Criminal Findley, An amicus curiae brief was filed Keith A. *3 Byron Pray, University Lichstein, C. John A. and of School, Madison, Law on behalf of the Wis- Wisconsin Project. consin Innocence Ralph BUTLER, JR., 1. LOUIS B. J. unpublished appeals' of
seeks review an court of deci- denying sion that affirmed the circuit court's orders Armstrong's judgment motions to vacate his of convic- Armstrong, tion and for State v. Nos. reconsideration. unpublished slip, op., 2002AP2979, and 2001AP2789 (Wis. 2004). App. May appeals ¶ 1 Ct. The court of newly determined that obtained tests that estab- DNA biologi- of certain lished was not the donor at a murder scene did not cal evidence found probability create a that the outcome would reasonable different on retrial. be appeals'
¶ 2. We reverse the court of decision. (1) excluding Armstrong as Because the DNA evidence physical the donor of the evidence was relevant to the (2) jury hear identification; critical of did not issue (3) evidence; instead, this physical and the State used the assertively repetitively as affir- proof Armstrong's guilt, mative we conclude that the controversy fully real Therefore, was not tried. we reverse circuit court's order and remand this matter grant Armstrong's to the circuit court with directions to judgment motion to vacate the conviction to order a new trial.1
W Ralph Armstrong 24, 1981, 3. On March first-degree first-degree convicted of sexual assault and Kamps, contrary §§ murder of Charise to Wis. Stat. 940.225(l)(a) (1979). Armstrong and 940.01 was later plus years' imprisonment. sentenced life May, ¶ 4. On the 24, 1980, afternoon of June Jane body Kamps' fiancée, discovered apartment at 134W Street in Madison, Gorham Wiscon- Kamps sin. was found face down in her bed smeared with draped blood, naked with a bathrobe belt across her back. Pathologist Huntington
¶ Robert concluded Kamps likely strangulation. most died from He injury Kamps' vagina, found anus, substantial unyield- throat consistent with the insertion a blunt, object.2 ing He also found six bruises in tissue below the
1According to representations *4 by made the State at postconviction latest hearing, Armstrong motion has to the 150-year serve remainder of a 30- to in sentence New Mexico. Dillman, Brian Kamps' boyfriend, testified that a nine to glass ten inch tall flower vase with a tapering wide base and to top missing nightstand the was from Kamps' when he viewed consistent scalp with being struck a blunt object. Huntington estimated that the time of death was be- tween midnight and 3:00 a.m. on June 24. the Although bed and pillows were blood-
soaked, found investigators no traces of blood else- in where the apartment, including bathroom. The police also found no indication the killer to attempted clean the scene or or in himself herself the apartment.3 Police gathered evidence, forensic including finger- head prints, and pubic hairs found on and around the and elsewhere in body the apartment, purported blood evidence, and a bathrobe found on the floor next later Kamps revealed semen stains. apartment after Kamps' murder. There is no in indication glass record that this vase was ever recovered or tested. 3 On point, this Fischer, we note that Officer Dean special
uniformed investigator scenes, who works crime testi fied that he searched Kamps1 apartment identify anything potentially evidence; which that he did not observe blood anywhere or stains else in apartment bed; aside specifically bathroom; checked the that the bathroom in Kamps' apartment "orderly clean"; that he did not any bathroom; observe in stains and that he found no blood the bathroom. asked,
When specifically any evidence, anything 'Was there you which would have noticed which would have indicated that something answered, had been up?", cleaned "Nothing Fischer I specifically know of." When any asked if information regarding whether someone had cleaned up the bathroom attention, had come answered, to his Fischer "No." When asked if "specifically Fischer was looking anything for which would be clue," Fischer answered 'Tes."
Thus, jury testimony heard about the mur- whether up derer cleaned in Kamps' leaving bathroom before the scene. Compare Roggensack, J., dissenting, 172 n.4. That was that the murderer did Compare not. id. *5 Armstrong Kamps and each other
¶ and knew 7. Armstrong Armstrong's through fiancée. friends were Kamps' apartment being a for brief in admitted to evening p.m. beginning period and 9:25 around 9:15 Kamps just murdered. before hours of June Armstrong not there at he was claimed that However, Kamps was murdered. when the times Armstrong against its case The State built (1) Armstrong following: have been could not that (2) Kamps' apartment wit- murder; her two before at Armstrong placed at made observations nesses apartment murdered; Kamps' around the time she was (3) irrefutably conclusively physical estab- and evidence (a) fingerprint including Armstrong's guilt, lished bong Armstrong's in on a water found as identified Kamps' apartment; (b) victim's stains on the semen type secretor as from a similar that came bathrobe (c) apartment Armstrong; in the head hairs found four expert as "consistent" the State's characterized (d) Armstrong's; of blood underneath traces "similar" to fingernails detected the and toenails (4) evening following had murder; Kamps return; and that she did not interest romantic (5) repayment Armstrong paid Kamps of a debt $400 following found could not be murder, her the $400 apartment, cash made a while $315 in her day. deposit next background following factual combines The splits points main sub- into two them
the State's (A) chronology headings: events on June (B) placed through 24, 1980; and June the first under at the scene. Subsumed Armstrong's explanation, subheading and the includes under refutation, his whereabouts. Subsumed State's subheading the witnesses who includes second placed Armstrong Kamps' apartment around the missing money time death, of her apartment implicates Armstrong as the murderer, *6 finally, physical and, evidence the State claimed "conclusively" "irrefutably" that and established Arm- strong was the murderer.
A. Chronology Events on June 23 through 24,
June Early Evening Kamps spent evening ¶ 10. Charise of June company including Ralph 23,1980, in the friends, of her Armstrong, May.May Kamps' fiancée, and his Jane Pipefitter close friend and coworker at the on State Kamps Street, Madison, Wisconsin. was friends with Armstrong through May. early evening In the of June May party invited her coworkers to a small in her apartment, Pipefitter located above the store at 519 May, Armstrong, Armstrong's State Street. brother (Steve), Kamps, (Greg and friend Kohl- hardt) May's Judy Marty were there. coworkers, and Betsy joined party Cornelius, after the store closed p.m. around 5:30 Kamps, Armstrong, May
¶ 11. and all consumed party. alcohol and used cocaine at the In addition, Kamps, Armstrong Cornelius testified Steve, that and marijuana. also smoked Marty they 12. Both Cornelius and testified Armstrong flirting Kamps, specifically
observed with lap attempted Marty that he sat on her and to kiss her. Armstrong Kamps also testified that she overheard tell they would talk later. Kohlhardt testified that it "They Armstrong's lap, Kamps and who sat friendly being just other, each toward seems were —it laughing and stuff." boyfriend, p.m., Brian At 6:00 about McGregor, May's apartment telephoned
Dillman, Kamps. spoke he Dillman testified that Iowa, and with purchase car, for the loaned $500 party, Kamps speaking he over- at the that while indicating money giving Kamps heard May repayment partial for the loan. it was $400 Kamps her had told that both testified repayment. that he Kohlhardt testified about the $400 money Kamps, Armstrong giving but also witnessed pass only them. bills between saw two $20 said that - p.m. 2. 6:30 9:00 *7 May, May's apartment, Following party at
¶ 14. Kamps, went to a local Kohlhardt, Steve, and p.m., to and from about 6:30 8:00 restaurant for dinner way bought to Kohlhardt's house on the to then beer program A MASH. member television watch the newspaper television schedule Police verified a Madison p.m. played showing to 8:30 that from 8:00 MASH Immediately following evening. MASH, conclusion of group at Kohlhardt's house. left Kohlhardt ¶ to when the There is some confusion as 15. Armstrong's apartment, group at 5572 located drove to drop Fitchburg, for Wisconsin, to off Steve in Guilford group May evening. went to testified Armstrong's apartment watch- after dinner and before ing at Kohlhardt's house. MASH
¶ testified that Steve However, Kohlhardt 16. joined watching house at Kohlhardt's MASH them supporting following Kohlhardt's testi- Further dinner. Armstrong's neighbor, mony testimony Pa- was by Armstrong's apart- stopped Emmerich, who tricia p.m. and minutes after 9 said ment to meet Steve few Armstrong, Kamps present. Arm- and were Steve, strong May them when was also testified with p.m. May stopped but that Emmerich at 9:00 things packing up her time, at the the bedroom night's previous visit. onward p.m. 3. 9:00 disputed
¶ 9:00 It is what occurred between 17. evening p.m. p.m. of June but trial and 10:00 on the p.m., testimony clearly Arm- that around 10:00 shows May's apartment May, Kamps up strong, ended p.m. together part while of the 10:00 news and watched using May testified that cocaine. Both May's apartment quarter Kamps at about a to 11:00 left p.m. later. left about 15 minutes and that Erdenberger, Kamps, A friend of Michael Kamps apartment called him at his testified at trial that Erdenberger Kamps p.m. said that 10:52 on June 23. at during looking their Dillman. He also said that for Kamps did not seem excited. conversation, two-minute Kamps by telephone May spoke p.m. point p.m. 11:15 between 11:00 some day. May's water-skiing plans go the next discuss any phone admitted to call was the last time witness having Kamps. contact with
¶ to reach Dillman testified that he tried 20. Kamps and 2:30 a.m. on June times between 2:00 several again busy signal. Dillman called received a but result, and and 10:00 a.m. with the same between 9:30 stop p.m. finally May to ask her to called at about 12:15 by Kamps' apartment. May p.m.,
¶ testified that at about 12:40 she body, noticing telephone Kamps' discovered intentionally hook, off the as if it had been receiver was May Pipefitter placed aside. then ran back to the and police. had one of her coworkers call the a. Account of His
Whereabouts Armstrong p.m., ¶ 22. that at about 9:00 testified May apartment Kamps, he, visited his while drop telephoned brother, Steve, Brent off his he Good- Harding Street, Madison, Wisconsin, man at 153 inquire buying about more cocaine. Goodman testified Armstrong that he had sold cocaine to earlier that p.m. telephone afternoon and corroborated 9:00 Armstrong, Armstrong in conversation with which stop by said that he would Goodman's house half-hour. Armstrong Kamps, he, testified that
May Armstrong's apartment dropped May left off at apartment. parking May's apart- her In the lot behind building, Armstrong Kamps ment said that he and parked vehicle, switched from his to which was in the same lot. way house, 24. On the to Goodman's Kamps up
testified that invited to her apartment for a beer sometime between 9:15 and 9:25 p.m. Armstrong accepted, and he said he had a half- juice glass orange and a can of beer. He also testified glass bong that he had to move off a table so that he put explaining why finger- down, drink could his his print bong Kamps' apartment. was found on the played said some music on the stereo and Kamps talked with for a short while before the two on to continued Goodman's. *9 Armstrong that he
¶ Goodman's, testified 25. At grams Kamps purchased and of cocaine about 0.4 and apartment May's between 10:00 returned to then May, Kamps Armstrong, p.m., used the 10:30 where and watched television. cocaine Kamps Armstrong at
¶ left testified 26. Armstrong p.m., said that he left about about 10:45 apartment return to his to visit 15 minutes later to Armstrong arrived at that after he his stated brother. attempting phone apartment, calls, he made several his cocaine, for more but was find a different source to phone Armstrong he then tried to unsuccessful. said Kamps more he was unable to find let her know that busy signal. cocaine but received May's Armstrong drove back to said then apartment he arrived at about 1:00 and estimated that judging traffic around State Street. a.m., from the bar May's he returned to that when testified through escape apartment, at the the fire he entered building, staircase. not the front back building explained generally enter the that he would key using escape, he did not have a the fire because through get front door.4 May the time testified that she estimated evening apartment for the returned to her defense testified Lulling, investigator an for the Charles unlocked. escape the doors to the fire were building Fink, May's apartment and who
Terry a resident that she had once used May's apartment, below testified lives get into the keys lost her and could not escape the fire when she However, Fink testified that building through the front. also alley path from the behind shrubs and bushes blocked path it not a building escape to the fire and that is apartment normally Additionally, Fink stated that choose. that one would 3:30 a.m. and apartment in her between while she was awake a.m., somebody up the front stairwell. 5:00 she heard come a.m.,
was around 1:00 from the noise judging outside However, bar time. resembling May admitted stating the John Doe hearing return could *10 have been as late 3:00 or Also, as 3:30 a.m. May acknowl- edged that she told two coworkers the next morning that was not her Armstrong that later night, explaining that it was a false comment, remark." "flip
b. The State's Refutation
Armstrong's Whereabouts 29. The State presented ¶ that testimony distances between May's, and Goodman's apartments were too for great Armstrong's version of events to be plausible. Madison Police Detective The- odore Mell testified that he drove the routes between the various at apartments five to ten miles hour per faster than the speed limit and stated that the time between Armstrong's apartment at 5572 Guilford and May's at apartment 519 State Street ten was minutes and 27 He seconds. further testified that the driving time between May's apartment Goodman's, and lo- cated at 153 Street, Harding was ten minutes and 22 seconds. above, As noted Emmerich
¶ testified that she visited in his apartment a few minutes after 9:00 p.m. Goodman testified that Kamps and Arm- strong at stopped by about 9:30 p.m. Goodman did not note the time precise but estimated that Armstrong and left Kamps his home between 9:35 and p.m. 9:45 p.m. Armstrong returned Kamps to May's apartment at about 10:00 The p.m. State argued given that times, driving could not have visited Kamps' apartment at the time Armstrong stated —around 9:30 Kamps placed Armstrong p.m. Goodman —because away, at the moment.5 ten minutes same his house Armstrong's story he re- refute 31. To May's apartment a.m., the State at about 1:00 turned to May's building presented the State two residents of who argued if he have seen or heard had would Terry Fink entered at that hour. testified making promotional was musician Jackson Browne including filming outside the Street, film on State Pipefitter. ten Fink stated that five or minutes a.m., until she on the sidewalk before 1:00 a.m. 1:45 observing apartment door, within feet of the front ten chatting Fink with friends. testified film crew Armstrong in enter the area or she never saw during apartments that time. manager for Zuba the resident 32. Jeff *11 directly Pipefitter.
apartments Zuba testified above the p.m., waiting apartment for 9:00 the he in his at turning the film lights, to contact him about store's crew apartment in his with the door and remained evening. open throughout The front door the the security propped apartment building lock but was had open night for the of the film a brick that benefit oppo- apartment door testified that his crew. Zuba top front staircase and that he site the door at the of the building. anyone entering leaving or the could hear 5 Armstrong argued driving the presented that times unreasonable, creating driving speed an average State were had 26 hour. If been slightly per more than miles hour, speed the difference in driving average per an of miles Armstrong's of his enough explanation time for would create Additionally, Kamps' apartment to become reasonable. visit to gave the time precise provided not about he Goodman was rough Kamps arrived and estimates of time stay. their duration of ¶ stated that 10:00 Zuba between and 10:15 p.m., Kamps poked say her head in hello. also to Zuba stairway Armstrong's heard voice in the but did see him.
¶ 34. said he Zuba went to the downstairs side- Pipefitter evening walk in front of three times that progress, to check on the crew's did but claimed he apartment's not wander far from the entrance. Zuba apartment returned to for the last time his about 12:45 kept apartment open a.m. and his door until he went to bed at about a.m. He or 1:15 did not see hear building. leave or return to regard Armstrong's testimony ¶ 35. With May's apartment he returned about a.m. 1:00 through escape building, the fire at the back Zuba admitted that he would not heard have someone enter- ing leaving by stairway. or the back
¶ 36. A Officer, Madison Police Beckwith, Vivian during testified on behalf the State rebuttal. She shortly issued ticket for vehicle before parking private 11:00 a.m. on June for in the lot adjacent Pipefitter. argued to the The State ticket was concrete evidence that contradicted Armstrong's testimony parked that he in the lot behind building entry through made his the back door likely. much less Placing Armstrong
B. Evidence at the Mur- der Scene
1. Witnesses *12 presented ¶ sup- 37. The State two witnesses to port theory Armstrong Kamps' apart- its that went midnight, p.m., ment after instead of before 10:00 as Armstrong asserted.
652 Laura Chafee a. She Laura Chafee.6 witness was The first directly apartment in the Gorham
lived at 134 West seemed to Kamps' music, which heard some below starting upstairs, 12:05 a.m. coming about at from be from music not heard she had that Chafee testified evening. Detectives apartment Kamps' in the earlier Department Chafee sit had Police Madison from the Kamps' played in apartment to music and listen her similar. apartment. the sound was Chafee testified he Officer, testified Police Rut, a Madison Josef Kamps' stereo. Funk album a Grand removed Armstrong boyfriend, Kamps' testified that Dillman, Dillman played for him. Funk Survival Grand had once copy turntable was on of the album that a said walk-through investigators accompanied on a he when Judy days her murder. apartment after several of her May's Pipefitter at Marty, and was at the worked who Armstrong had party testified 23, also on June among his Funk Survival her that Grand once told played her.7 for he the album and that favorites Riccie Orebia b. witness the second Orebia was 39. Riccie Kamps' apart- place presented
State refreshed apparently were recollections Laura Chafee's by at trial However, explored not this was through hypnosis. Armstrong. by State or either the Survival Funk argued that Grand trial, Armstrong At including many, and owned liked album popular noted, previously As May, Kamps. Armstrong, 9:00 between Kamps' apartment he visited
testified that however, remember, whether could p.m. 10:00 receiver. on her just or turned her stereo a record on put *13 ment at the time murder.8 Orebia lived at 120 W. porch shortly Gorham and on his from sat after 10:30 p.m. night 4 until a.m. on the of June and almost 23 during early morning of June Orebia did not passer-by have a clock a available, watch or but asked p.m. for the time was told it was about 11:45 time, on that Based Orebia estimated that p.m., top about a car a 12:30 saw white black pass on West Gorham and described the as driver having shoulder-length dark, car hair.9 Orebia saw the pass park a second time and out of view across street. later, 41. About five or ten minutes Orebia saw person parking
a lot, walk from the direction of the apartment building. street, cross the and enter person Orebia described he observed as lean and very muscular.10 About five that, to ten minutes after building the same man left and headed back the direction he had come. Orebia testified that another passed, person five minutes and the same crossed the building street, entered the time, then, second staying again after another minutes, inside five left this wearing time without a shirt. Orebia stated five passed, person more minutes and the same ran across building stayed the street time, to the a third for about living Riccie Orebia was as a transvestite at the time of trial and was referred to in the In feminine. the record from postconviction hearing motion and in the court of appeals opinion, Orebia identified in is the masculine. We will do same. 9Armstrong bought testified that he a black-over-white Plymouth with the money Satellite he borrowed from Dillman. 10Greg Kohlhardt, friend, testified Arm strong strong was particularly he had once witnessed deck of rip full cards in half. "shining" running very fast, as left minutes, and then oily. the black-over- then observed Orebia if he were parking away speeding lot. car white resident Anderson, another ¶ 42. Thomas *14 building, of afternoon that on the testified Orebia's following description of the shared June Orebia night man a muscular the before: observed what he of large ran in and out flat stomach arms and a with building a on and that black- a shirt without away sped from the scene. vehicle over-white Hypnotically i. Orebia's Memory Enhanced prior days to murder and ¶ after the Several procedure, any police underwent Orebia identification memory.11 Roger A. McK- hypnosis Dr. to enhance his hypnosis, inley performed Detective Robert the Department was Madison Police of the Lombardo present McKinley provide during process with to McKinley important areas to cover. about information gave hypnosis, prior him Orebia to that testified indicating that description observed, man Orebia of the shoulder-length build, and that hair, a muscular he had sweating running he left the scene. when he was during hypnotic McKinley testified particular features session, Orebia described long suspect including suspect's had face, McKinley bushy eyebrows. if admitted that nose detail make out the able to not have been would Orebia lighting Armstrong's conditions, then of face because of credibility on Orebia's Armstrong's attack to response In hypnosis, effect of and the regard to his recantations his matched early description that Orebia's emphasized State testimony. trial
any gave Armstrong's description eyebrows, nose, of and other would features have to be "confabulation."12 Photographs
¶ 45. of and the vehicle passed McKinley during were between Lombardo and hypnotic McKinley session, in front Orebia. of presence testified his that in Orebia never shown photographs Armstrong. However, of Lombardo stated photographs that Orebia saw vehicle McKinley during when he them handed to the session photos prior and that had Orebia also seen the car hypnosis. McKinley hypnosis procedure defended his non-suggestive. with Orebia as trial, 46. At was critical of the deci- subject hypnosis. argued sion to Orebia to Lombardo prior hypnosis Orebia stated he would have been identify person able to he had seen.13 Armstrong presented testimony ¶ 47. Dr. *15 psychology professor Kihlstrom, John F. a who testified hypnosis memory. to the effects of on Kihlstrom stated hypnosis that can be used to access memories that are ordinarily not hypnotist memorable the wakened state, but the equal
also runs an of risk confabulation.14 precautions Kihlstrom that stated to limit the introduc- suggestion keeping tion of inadvertent include the hypnotist the case, blind to facts of the and to conduct Kihlstrom, Dr. Armstrong's hypnosis expert, defined "confabulation" the as creation or alteration of memories through such suggestion subject that the could the wake from hypnotic something state and remember that actually never occurred.
13 Orebia also testified that he would have been to able make a positive identification hypnosis without the suggestion undergo to hypnosis was Lombardo's. 14See 11 for Armstrong's expert's footnote definition of confabulation. presence investigator of an who
the session out of the suggest particular views. could testimony, presented During ¶ Kihlstrom 48. his McKinley videotaped excerpts between from the session in the noted that Lombardo was and Orebia. Kihlstrom initially during session, that Orebia room being suspect five-feet, to as three inches described McKinley suggestively tall, five-inches but five-feet height inquired a of Armstrong's attorney feet tall until Orebia about six agreed height. with that stated Armstrong tall. six-feet, inches is two of Line-up
ii. Identification Orebia's Armstrong early July morning 1980, In hours of undergone hypnosis, Madison Orebia had
after arranged line-up procedure Department a at Police Armstrong's attorney Den- time, at Gorham. West Armstrong cooperate and Burke, not to nis instructed police Armstrong complied direction. The with Burke's Armstrong jail.15 line-up The then returned to morning July early of held in the hours rescheduled and Again, to had 3,1980. Burke instructed McCoy cooperate. testified that Detective Francis July requested 3, about 4:00 a.m. on jeans cowboy pair put pair of and a boots shirt, line-up participants, but match the other refused. up, police At line officers walked two line-up participants across West
with each the five apartment up porch Kamps' at 134 Gorham, *16 opposite and then back the direction. Gorham, West in connection with Armstrong previously arrested murder. Armstrong person go was the second and he went limp accompanying as soon as he and the two officers him standing came into view of the observers on the porch Roger of 120 West Gorham. Detective Attoe and patrolman accompanied Armstrong dragged him up porch Kamps' apartment again. to the and back Detective Attoe testified that lost his shoes along way and made the statement, "better a little pain imprisonment now than police life later." The remaining participants along took the three the same route. line-up participants 51. The five were then each police police
held two officers in front of a van and brought parking Orebia was down to the lot to observe. Orebia participants walked down to view the at a testimony distance of about 25 feet. The of the State's McCoy, witness, Detective and the witness, defense's Attorney Burke, differ as to whether slumping standing height or at full at the time Orebia line-up viewed the in front of the van.
¶ upon trial, At seeing Orebia testified that during por- head come into view the first line-up, gasped tion of police he and mentioned to standing officers with him that was the person leaving he saw the murder scene. recognized 53. Orebia also stated that line-up participants, including
the other par- the first ticipant, wearing shoulder-length wigs were and men- tioned standing that observation to the officers police him. Orebia him they testified that the told custody had a man in line-up, who would be in police however, the pick also instructed Orebia not to anyone telling unless he was sure. Orebia admitted to Attorney Burke that far as as he was concerned, the line-up was fixed. *17 to Ability Make
iii. Orebia's Observations. Armstrong presented Fournier, an
¶ Dr. John 54. ability ophthalmologist, of Orebia to make to refute the the distances Fournier measured observations. certain vantage point lighting on conditions Orebia's and porch the route of the Gorham to the person of 120 West night vision
he observed. Fournier testified daytime acuity vision, and that that of is about Vio given made his which Orebia the conditions under feet and low distance of to 134 observations —a glare lamps in illumination from the street person physically possible foreground a for was not —it position make out facial features. in Orebia's iv. Orebia's Recantation gave a ¶ 1980, Orebia state- 5, 55. On November (At- Armstrong's attorney's office at ment under oath torney presence Krueger), a in the of court Edward attorney's investigator, reporter directly Lulling, contradicted in Orebia Charles which police. In that to the his identification absolutely could said that person statement, Orebia running and out not have he saw been 134 West Gorham. Attorney gave second statement Orebia indicating
Krueger's 10, 1980, office on November given through he had five he the statement had read days prior correct. true and that it was his recan- However, trial Orebia recanted positive he and stated that tation Kamps' apart- person and leave he saw enter building night 24, June three times ment gave on that the statements 1980. Orebia testified purposely untruthful, 1980, were November credibility told as deliberate lies to undermine his as a hopefully witness and result in his as withdrawal witness.
2. Missing Money from Kamps' Apartment *18 ¶ 58. The also State theorized that after Arm- strong Kamps, Kamps murdered he stole the from $400 given evening. early that he had her earlier in the In the 24, afternoon of June the State established that Armstrong deposited in cash into his bank ac- $315 opening closing count. In both the statements, emphasized missing Kamps' apart- State $400 Armstrong's deposit following ment and cash $315 asserting together afternoon, that both instances were Armstrong's guilt. an indication of Renzaglia, ¶ 59. Karen a teller bank at First Wis- Armstrong Bank, consin West Towne was familiar with and testified on behalf the State. She said that Armstrong usually deposit large large did not bills or gave amounts, but on 24,1980, June he her at least one along bills, bill and least 20s, $100 two $50 with five five, a ten a and then a check. While typically quiet talkative, he was that afternoon.16 presented testimony
¶ 60. The State from several investigators detectives that were unable to find Armstrong gave Kamps partially in cash that $400 to satisfy Kamps' boyfriend, his debt to Dillman. Dean special investigator a Fisher, uniformed with the Madi- Department Police son testified that he and another "just any place officer looked in about conceivable we figured money there would be Drawers, hidden. dress-
16Armstrong explained any that if he was less talkative in drive-through, chatting it was because he was with his sitting passenger brother in Renzaglia seat. testified she could not be sure if was alone in the vehicle. including clothing, Kaxnps' anything," in cabinets, ers, finding apartment without the $400. a member of the Dane Meicher, James Department,
County Fisher with Sheriffs assisted pair in a that he found scene. Meicher testified $136 top halfway jeans of a from the located blue clothing Kamps' apartment, fairly large pile of in stat- ing bills, three five denominations were six $20 that the single Dillman testified one dollar bill. bills, dollar and morning Kamps 23,1980, left on the of June when gave McGregor, in Iowa, her his $133 home The State 20's, ten, and three ones. attrib- cash—six Kamps' apartment Dillman uted the found $136 argued investigators could not locate that the $400 account and in the found in bank could be custody. person when he was taken into on his $61 brother, Steve, testified that his *19 Armstrong gave repayment clothes $300, him for bought trial, rent.17 At him and for Steve's summer explained Armstrong in car he was involved a also that May received an insurance in the middle of accident company. insurance on June 20 for from his check $600 salvaged for car roommate He to his also sold the hearing May at the John Doe another testified $250. evidence to refute whether Steve presented State The 23, Armstrong spent On June give Armstrong. to had to $300 luggage on the bus Steve, had his on clothes for who lost $140 Armstrong admitted that several weeks to Madison. also ride money arrived, Armstrong to had asked send before Steve Steve to his travel costs. cover of Armstrong's other sources
Additionally, regard to Armstrong to borrow had money, testified Brent Goodman on the cocaine from Goodman purchase from to Kamps cash he Armstrong Kamps heard tell night 23, as Goodman of June was a little short. Armstrong
that she was with when cashed the Armstrong insurance check and that she witnessed large receive bills. Physical Evidence Crime Scene police specimens The collected hair and se- samples Kamps' apartment,
men fingerprints as well as two bong. police
that were found on a The also gathered purported what to be blood evidence from Armstrong's fingernails underneath and toenails. The argued jury physical State "conclusively" "irrevocably" established as killer. Fingerprints
a. Rut, 64. Josef Officer, Madison Police testified fingerprints bong that one of the two on the matched print and that the source of the other unknown.
b. Semen Stains on the Robe Wegner, microanalyst ¶ 65. Coila J. at the State Laboratory samples Crime Bureau, tested semen found on the bathrobe recovered from the floor next Kamps' body.Wegner testified that she found nine areas positive presence on the robe that tested for the seminal material. She tested the stain nearest the hem of the robe and it determined that was indicative Wegner a type A secretor. testified both type percent and Dillman are secretors, A as are 80 *20 population. the world's Wegner
¶ 66. On cross-examination, testified that the location of at least seven of the nine seminal stains person having on the robe were consistent with a sexual the sitting wearing down while intercourse and then remain on these stains would stated Wegner robe. washed. Dillman testi- until was garment the robe often, in the usually the robe fied that wore Kamps1 retired in and when she got before she dressed morning the evening. about argued following 67. The State
¶ argument: in closing semen evidence (Indicat- Kamps' robe. This shows Charise picture testimony You right next to the bed. heard ing.) It's it Wegner performed tests on and that robe. Jill about it. Found material and she found she looked for seminal analysis trying that. to of She did an on She spots it. put who seminal type person the blood determine So, it found that it analyzed she and fluids on the robe. type A blood who secreted his person from a came saliva, semen, fluid, in in in body his his type blood his Armstrong's analyzed blood and Ralph And she his tears. Ralph Armstrong's type A secreter. saliva. his - Blood Evidence Hemosticks c. at to the station police drove 24 to wait for June 2:15 afternoon p.m.
about to After asked to statement May, give police. who was asked station, at Officer arriving interviews, After three a statement. Hathoway give for consent forms Armstrong signed 8:30 p.m., about took car, Wegner person, apartment. searches of his head a standard Armstrong, including samples Armstrong's hair, sample, a saliva tested hair, pubic traces of blood. hands and feet for running after Wegner testified pads with treated absorbent plastic strips hemosticks — found proteins react certain presence toes fingers the nails of blood —under *21 presumptive cuticles, and around the she found a positive every finger reaction on and on several toes.18 Wegner scraped
¶ 70. then material from under- Armstrong's large neath thumbs and tested toes, the samples, and determined the that material indicated origin. Wegner of However, blood human testified that she did not have material to sufficient run additional identify tests and could not from whom the blood came Wegner agreed fact, or it In how old was. that in her experience, one-year produce she had blood over old positive hemostick results. Wegner agreed sensitivity
¶ 71. of trigger presumptive 300,000 is one in hemosticks positive. agreed simply She also hemosticks particular react iron, chemicals within blood— plant peroxide are also found in other sub- —which stances besides blood. Armstrong presented supporting
¶ 72. explanations presence alternative for the of human large During blood under his thumbnails and toenails. evening tests of June 1980, in the presence Roger Jergovic, of Detectives Attoe and Rudolf trial, and at stated that he fallen and had scraped previous day his and his elbow knee the in a footrace with his brother the Arboretum. explained days preceding also that in the tests May, had sex and had taken fiancée, showers with his experiencing period she while her menstrual profusely. that she tended to bleed Wegner Indeed, testified showed her the scab on his knee when she conducted Armstrong presented photographs tests, his
18Wegner Armstrong's watch, also used hemosticks on finding a presumptive positive blood, for but did have sufficient amounts origin. to determine the blood's testing Wegner's scrapes also found trial exhibit. in a Armstrong's pants that was blood the inside scraped other traces knee. No with his consistent clothing or or inside found on blood were *22 of his boots. outside Armstrong's May's testimony
¶ corroborated 74. during explanation and about his fall footrace about intimacy May's during Armstrong's physical her and sought May period. specifically she stated that menstrual heavy regarding particularly her attention medical bleeding May days Kamps' prior murder. bleeding heavily during a shower testified that she was surgery to correct and that she later had with her condition. spent Wegner
¶ two full also testified that she 75. Armstrong's examining working days car the interior of Wegner for blood in the car's blood. tested for traces of compartment, including and focused interior, the trunk steering gearshift wheel, lever, lock button on the ceiling, front and floor, and the door, driver's anywhere Wegner no traces of blood rear found seats. appear as that it did not the vehicle and testified within attempt clean the car. if there had been an Wegner's findings ¶ The characterized State of underneath of amounts blood trace following: closing fingers with the and toenails at the fingers tested down The defendant's were ran the hemosticks around Wegner station. Jill police and under the nails and under the thumb the cuticles finger lo and every of behold and around the cuticles every every fingernail, single one. blood under there was added.) Kamps' (Emphasis blood. That was Charise Evidence d. Hair Huntington Wegner his Dr. assisted body. Wegner
postmortem re- of examination combings pubic pubic covered hair and head and hair Kamps comparison. standards for A78. number of hairs were recovered from Kamps' apartment, Wegner compared which to the pubic Armstrong, Kamps, standard head and hairs from Wegner explained process trial, and Dillman. At comparison her jury, elaborating to the on the characteris- importance tics surface, scales on the hair's or —the pigmenta- cuticle; form, color, distribution consistency tion; center, of the medulla, or hair; shed, broken, whether the hair has been or forcibly any removed; characteristics, unusual such as physical double medulla cuticles; or cracked condi- tion of the hair. Wegner
¶ 79. testified that there are 60 to 70 compares characteristics she between hairs to deter- Only mine are whether two "similar" or "consistent." majority is needed to determine two hairs are "consis- *23 Wegner tent." stated in that almost all instances —99.9 percent say through analy- microscopic could not —one specific specific sis that a hair came from a individual. Wegner analysis that testified hair can include or ex- person identify clude a but not could them. Wegner
¶ 80. testified that two head hairs and pubic one hair were removed from the bathrobe belt draped Kamps' body. that was across One head hair was Armstrong's consistent and one was similar with hair. pubic The hair from removed the belt was consistent Kamps. with Kamps'
¶ investigators 81. From bathroom sink, fragments. two recovered head hairs and two head hair Wegner testified one head hair was similar with Kamps, Armstrong, two were consistent with and one Kamps Armstrong. could be attributed either or testimony May counsel elicited from routinely May, Kamps, shared same May hairbrushes, and identified hairbrush photograph counter as one of bathroom May's own. Wegner analyzed
¶ hairs from blood and 82. including scene, five collected at fecal-like matter body pubic hairs, hairs, three and one four hairs, head Wegner hair one head those, hair. Of found animal pubic Armstrong's. All with four of consistent Kamps. were consistent with hairs Kamps' apartment, ¶ investi- From fan gators hairs, head one of which was recovered four Armstrong's, consistent with and three were similar Kamps. Wegner recovered one head hair attributed Kamps' apartment to Dillman. from Wegner ¶ collected one itself, From the robe Kamps, and three with hair, was consistent head pubic which pubic from Two of the hairs removed hairs. Kamps, was not and one were consistent with robe Kamps Armstrong. either or consistent with Kamps apartment, bedspread 85. On the pubic Wegner nine hairs. Five hair and found one head pubic Kamps, pubic four hairs were consistent with "forcibly removed,"19were incon- hairs, which had been Kamps Armstrong. sistent with both sweep- in the 86. Of the hairs collected vacuum ing bed,20 consistent none were found to be around Armstrong. pubic hairs, five of which were Ten a hair Wegner one could determine whether testified that shed, broken, removed, on the cut, forcibly or based had been *24 lack of a follicle. presence the hair and or condition of hairs, head six hair 20 Wegner testified that seven head hairs, fragments, hair seven fragments, pubic two pubic 20 from the hairs, body recovered animal and three hairs were sweeper. vacuum
667 forcibly sweepings the removed, in vacuum were not Kamps Armstrong. attributable to either or Wegner agreed in that half about of all pubic sexual assault cases hair is transferred from the assailant to the victim or from the to victim the Wegner pubic assailant. stated no that hairs collected Kamps' apartment were be determined to consis- Armstrong, tent with and no hairs were found on Armstrong, or on articles in search seized Armstrong’s apartment, that were consistent with Ka- mps. closing arguments, argued In the State draped head two found on hairs the bathrobe belt (one Kamps' body Wegner
across of which determined to be consistent with and the other to be similar to Armstrong's hair), the two head hairs found sink (which hair), Armstrong's were consistent with (which head hair found in the fan similar to Armstrong's hair), and the hair head (which found the fecal body near matter was consistent with hair) Armstrong's proved murdered Kamps. following The State made statements char- acterizing the hair evidence:
Now, you an opportunity have to see what right scene looked like after Ralph Armstrong commit- (indicating).21 ted murder That's what they saw on the bed (indicating). Kamps. Charise That Charise 21The indications State made were crime scene photographs "nude, depicting Kamps' body face, on lying her back, with blood smeared her thighs." buttocks and State v. 555, (1983). Armstrong, 110 2dWis. N.W.2d These are the photographs same this court concluded in appeal direct were properly jury sent back to the room aid the jury in physical its assessment of the produced at trial. Id. stated, This court "We judge conclude that the trial could *25 I look at marks on the Kamps. you want the smear (indicat- angle it real well from this legs. You can't see You ing). You have heard Officer Fisher describe it. like May says finger Jane it. it was heard describe It So, was (indicating).22 Kamps Charise found paints and on lying in blood and feces her bed with that robe (indicating) lying Kamps1 it of Charise top on. This is this body. Two hairs were on robe. the of defendant's body Kamps' right hairs there across the One Charise (indicating). they find
They hairs. Where did the hair looked for it in bathroom apartment? in that Found the sink. in, fan, in the it robe tie. it Found on the Found feces underneath they pile found in a on the floor it every place hair in in that body. The defendant's killing Ka- with his Charise apartment was consistent mps. Right open. in the was
The cabinet bathroom The defendant kept open. the towels were were where gone up in there to clean after murdered had in hair was that sink.23 Charise his that hair you The defendant would want to believe it was and has a kind of floats around and lands where why for explanation of its There is no mind own. assist
reasonably photograph question could decide that connecting jury physical in their assessment merely was not purpose to the crime and that the defendant jury." prejudice or Id. to inflame noted, no indication the killer cleaned As there was Further, apartment. Wegner found or herself at
himself car. traces of blood no indication, there above, noted no police As found establish, himself or that the killer cleaned no evidence to was following the murder. Kamps' apartment herself place hair found in every that the defendant that he Charise except Kamps. (Emphasis murdered added.) closing, Armstrong disputed In the State's *26 length. Specifically, characterization of hair evidence at argued Armstrong sharing of hairbrushes Kamps, among May, Armstrong provided and an inno- explanation why Armstrong's cent Kamps' for hair was found in Armstrong many
bathroom sink. noted that forcibly pubic scene, hairs removed were found at the all hair, of which were inconsistent with belong person and that the asserted hairs to the who Kamps. killed jury Armstrong
¶ The convicted on all counts. History Newly C. Procedural Discovered Evidence. Armstrong
¶
convictions,
91. After the
filed a
postconviction
requested
argu
trial,
motion that
a new
(1)
ing:
Orebia's identification of
should
have been inadmissible because of the State's use of
(2)
hypnosis
memory;
line-up
enhance
to
his
iden
tification of
unreliable
was there
(3)
erroneously
inadmissible;
fore
trial
court
exer
by allowing
cised its discretion
two color murder scene
photographs Kamps'
jury
of
to be sent to
room;
(4)
duty
exculpatory
the State breached its
to disclose
by failing
provide
copy
to
an accurate
of a
parking
ticket received
the defendant. See State v.
Armstrong,
555,
110 Wis.
559-60,
2d
a new trial based of him as the source evidence that excluded cally DNA for Dane The circuit court robe. Kamps1 semen Jr., denied the Michael B. Torphy, Honorable County, this evidence would not motion, prob concluding See State v. different result on retrial. ably produce 1992AP232-CR, slip op. Armstrong, unpublished No. 1993). (Wis. The court of appeals June App. Ct. affirmed. Id. at 1. determined appeals 93. The court "an of circum- piece insignificant
semen evidence and to Kamps evidence linking stantial Id. Further, at 2. the court appeals her apartment." stated: the state's case was greater importance much
Of neighbor unshaken who saw testimony Kamps' *27 going in and out of Armstrong acting strangely while building during the hours when the Kamps' apartment present an Armstrong attempted crime occurred. effectively demolished. alibi for that time that state evidence, and hair such as blood physical Other scene, body crime also on his and at the samples found Additionally, day after the Armstrong. inculpated large unusually deposit made an Armstrong murder known to Kamps in his bank account. in cash $315 day that previous in her apartment have had $400 of the cash Armstrong was aware never found. satisfy her to a paid had it to because it was who guilty a ver- likely produce debt. This evidence would proof Armstrong's conclusive on retrial even with dict apartment. in Kamps' leave his semen that he did not Id. at May Armstrong 17, 2001, 94. On filed another newly
motion for new trial based on discovered findings, evidence. This motion was based on three dispute. which the State did not testing First, DNA conducted Dr. Edward Armstrong, Kamps1boyfriend, Blake excluded as well as Dillman, as source of the two hairs found on the robe belt. As noted above, trial, the State's forensic expert using microscopic analysis, testified that she concluded that one hair was "similar" and one "consis- Armstrong's tent" with Second, hair. Blake found no examining piece traces of blood when of cloth accom- panying allegedly prepared slides from the hemostick scrapings swabs thumbs and large Third, toes. reasserted that the DNA analysis conducted 1990 excluded as the source of the semen on the bathrobe. only ¶ 96. The issue was whether this new evi- probability dence created a reasonable that the result would be different aat trial. claimed that it did, while State contended: things you do,
[0]ne of the you analyze is, when what strength was the of the scientific evidence that we presented? earlier— n Frankly- you alluded to this —and
[Armstrong's superb job counsel] did a of cross- examining Wegner in deflating Miss the significance of this evidence. brought
He out the fact that 80 percent of the population clear, by is secretors. It was the time she was testifying, done boyfriend or the defendant *28 could semen, have been contributors of the but we didn't say know —we couldn't precisely who.
He were, cross-examined her and elicited that there think, pubic spread forcibly I hairs on the bed origin. extracted of unknown
I believe that there were 50 not consistent with either the victim or the defendant. Five in the vacuum sweepings around the bed with the same characteris- the bathrobe itself. tics. One on bevy hair to that
There was a that was testified not have included either the defendant or the would victim, but was attributable to no one that we knew of point. at that [Armstrong's argued very effectively counsel]
And significant. hair not that that the evidence was goes everywhere. hair He intro- . . . He talked about concerning sharing of hairbrushes duced evidence Kamps, May, Jane who was the between Charise I think girlfriend, defendant's and the defendant. two those hairbrushes were at scene.
And, beyond, which we have the defendant's admis- sion, night that he in the on the apartment murder. there,
So the fact that there's hair that is seen as defendant, surprise. is no consistent with correctly I out that pointed Now think the Court that hairs are now— the defendant's contention these Wegner's testimony, that the hairs were that Miss defendant's, to" the does "consistent with" or "similar somebody clear that to the extent wants not fall—it's are the you the inference that those hairs to draw defendant's, any- inference you can't that draw more, to her at the but she stated what was known fact, time, indication, kind and there's no at, looking these hairs of characteristics she was *29 They aren't or "similar to" the defendant's. "consistent" aren't the simply defendant's. response, Armstrong argued In the follow-
ing: see, a crime expert
[Y]oudon't even need scene to as the already indicated, your here, preface Court has this; belt, importance critical of because it is the death, good that there's a chance was the instrument of beyond that, right body but it's over the where the murder, killer had to during have been the course of the it, and the I top hairs are and can't think of a expert, expert, forensic a crime scene who would be the case, appropriate expert say in this who wouldn't extremely probative, highly probative. that was That it deposited or around the time of the murder. they say, It's common sense. It's what would be- in cause it's accord with the usual principles transfer of and, indeed, know, you jury? who [The said to the attorney.] prosecuting just say He didn't indicative of guilt, in argument; conclusive, as he said his he said irrevocable, and he it persuasively, said notwithstand- ing praise colleague, [Armstrong's our of our trial counsel,] pointing for out percent there's an 80 chance serology somebody could have meant else. That wasn't it. fact, important very
What's here? The fact that on, you're isolating very, very and that is these are probative pieces right of evidence. The on top hairs belt, scene, right over the crime with the semen below. juror looking evidence,
A reasonably at this listen- ing attorney] said, prosecuting [the what what the was, timing explanations rebuttal about all for things, these different kind opportunity and Orebia's observe, everything else, people what ordi- do narily way? do a common sense
They say the physical show me evidence that's most highly probative, way we can or use one another to corroborate, here, very and what the State said *30 conclusive, terms, irrevocable, forceful it's it's the hair there, hair, obviously is high that's and that there's a likelihood, extraordinarily high left likelihood the killer, found, below, because of where it's and the semen obviously that not be could demonstrated at the trial Armstrong. conclusively didn't come from semen, going Both the hair and the to be a it's not question They of it's a opinion; question of fact. are not Ralph Armstrong. sure, something jury,
That was that this I'm would rely on they everything, when considered as the tipping point, highly probative. because is so it is so It critical to who committed crime. this 98. The circuit court for Dane Honor- County,
¶ Fiedler, able Patrick J. denied motion. Armstrong's the Regarding they hemostick tests and how did not blood, show the the presence any of circuit court found that all the blood Wegner's analysis expended of found. The court Wegner's further concluded that testimony underneath regarding finding blood nails was proper. semen, the the circuit Regarding court de- Moreover,
termined that this evidence was minor. the court observed that established that 80 of the are A percent Type secretors and that population there was no semen way knowing of when the stains Thus, placed were on the robe. the circuit court con- cluded, the jury well-apprised weight of to be to the evidence. given regard evidence, hair the court With
acknowledged the bulk of the scientific that analysis. However, the new hair the hair concerned sufficiently tip scale in tests did DNA Armstrong's favor, the circuit court concluded. The persuaded by the fact that the evidence was court was given properly the science the times and admitted presentation a fair the evidence the State made viewing closing arguments. opening Also, in its closing entirety presentation argu- its State's played ment, the concluded the hair evidence but court If the role in the State's case. case were be a small posited: retried, the circuit court jury it is I am would also hear satisfied any impossible precision to ascertain with when way on That be hairs found their the belt. this would hairs, give consistent other to which we cannot to, apartment, are in the includ- ownership found animal, ing that of an and that with advancement *31 it years, in science the course of the last while over may analysis certainly be hair would he that the different, satisfied, given way it be I am the that would entirety, dealt with in its that the result would remain the same.
¶ 101. The court said that the critical most evi- testimony was time-distance it related dence the as Armstrong's Thus, the whereabouts. court concluded Armstrong that did meet his burden of clear and convincing newly that evidence evidence the discovered probability created reasonable the outcome would be different retrial. Armstrong appealed, ap-
¶ 102. court of peals appeals The court of first determined affirmed. judicial against estoppel did not State. Armstrong, 2002AP2979-CR, Nos. 2001AP2789-CR unpublished slip op., Armstrong ¶ 31. noted that at his argued trial in State that the semen and hairs unmistakably implicated found on the victim's bathrobe Armstrong light Id., ¶ as the murderer. In argued tests, new DNA State now that neither the semen nor hair was connected to the murder and that explain why physical innocuous reasons present. was Id. claimed the State should be judicially estopped making from this turnabout. Id. The appeals disagreed, concluding court of that because asserting newly discovered evidence, Id., ¶ facts could not be the same. Therefore, appeals judicial estoppel the court reasoned, did not against lie the State. Id. appeals
¶ 103. The court of next turned to newly Id., discovered DNA tests. Initially, appeals ¶¶ 32-34. the court of had to decide newly applied. whether the Id., discovered evidence test Armstrong proposed ¶ 32. that it did not and that a seeking Id., harmless error test did. 33. Rather than to add new and relevant evidence fold, to the sought powerful guilt to remove a inference of utterly hair and semen that is now known to be establishing guilt. irrelevant to his See id. it As was now erroneously known that the evidence was introduced Armstrong argued used, the State bore the burden proving the error Id. harmless. appeals ¶ 104. The court of concluded that newly proper, discovered evidence test was but wrestled writing: conclusion, with this significance.
Which test we use is of potential This extremely is an possible close case. It is not to tell from *32 this record whether guilty. is innocent or While affirm we the trial court's decision to use the newly test, discovered evidence the of a use harmless-
677 reversing in our probably error test would result Armstrong's argu- agree with trial court's order. We doubt on evidence innovations in science cast ment that technology, at trial. These advancements admitted evidentiary however, render the trial court's do not "A they made. at the time were rulings erroneous newly-discovered evi- for a new trial based on motion that there were errors dence does not claim deficiency in trial the trial or counsel's conduct of Brunton, 195, 203 Wis. 2d [State v. performance." (Ct. 1996).] 206-07, The distinc- App. 552 N.W.2d452 newly evi- Armstrong makes between discovered tion jury and evidence later presented dence not to the Additional to be false is a rational distinction. shown from evidence from conceptually is different argued But this the State false conclusions. which recognized and we cannot has not been distinction evi- escape undisputed fact that DNA newly may It be that we dence is discovered. anomalous use a more strict test where the State benefits than where the State benefits false factual conclusions ruling. evidentiary an But test for from erroneous court newly supreme discovered evidence is the test continue to use. and this court Id., ¶ Arm- only The State whether disputed had "clearly convincingly" proven strong " create a reasonable probability [s]
new 'evidence Id., be different on retrial.'" 36 outcome would 234, v. 213 Wis. 2d Avery, State (quoting (Ct. 1997)). The court App. appeals N.W.2d " there is a '[i]f observed that determined Avery that a would harbor jury reasonable probability doubt as to it follows that there exists guilt, reasonable of a different result.'" Id. reasonable probability 241). 2d at The court of 213 Wis. (quoting Avery, is not to determine job "[its] determined that appeals *33 jury how, all, if at the false evidence influenced the proper inquiry, Id., ¶ Instead, the the first trial." 37. appeals hypothetical, stated, of "is whether court jury guilty at retrial find future would totality including evidence, the new based on testing." from advances in Id. evidence obtained DNA reviewing record, After the court con- 106. "[d]espite case, of Arm- cluded that strong the closeness this newly persuaded that the discovered has not us jury reasonably evidence would cause a new to discredit incriminating Id., ¶ circumstantial evidence." Although easily possible jury "it is that a new could appeals id., held verdict," reach a different the court of "Armstrong newly not shown that the discov- has clearly convincingly a reason- ered evidence and creates probability that the outcome would be different able Id., ¶ 44. retrial." Finally, appeals questioned of the court authority grant a new trial
whether it had the justice direct interests of because the case was not on power, appeal, that even if it had the it but it decided ¶¶ Id., 4, The court would decline to exercise it. 46-47. distinguished appeals Hicks, 150, v. 2d State Wis. (1996), where this court concluded 549 N.W.2d fully controversy the real of identification was not assertively hair tried when "the State used the guilt" repetitively proof as affirmative of Hicks' excluded Hicks as the donor when later DNA tests appeals the hair. Id. at 48. The court stated: Here, Arm- the sole issue of the case was whether jury eye wit- strong Kamps. murdered The considered testimony, along other circumstantial evi- ness dence, Kamps. murdered and found that misleading evidence did not "so The hair semen jury deliberating this issue. cloud" or distract Likewise, excluding Dillman [the the DNA evidence boyfriend] of the hair and semen victim's as source important enough testimony bearing is not on the controversy to warrant a new trial. We conclude that controversy fully. tried the real Id., ¶ 50. *34 Armstrong
¶ 108. seeks review. multiple arguments ¶ 109. raises as to why reverse, this court should one of which is that we discretionary power. Armstrong should use our reversal requests that this court order a new trial the interest justice controversy of the real because has not been fully agree physical tried. with that the We evidence now known to exclude as the donor say any was used in a manner such we cannot degree certainty controversy real that the has been fully tried.
A citing ¶ outset, State, 110. At the v. State (Ct. 1990), App. Allen, 159 Wis. 2d N.W.2d disputes whether this court can order a new trial in the justice, Armstrong's appeal interests of as current is not appeal, premised a direct denying rather an but is order (2001-02). §
him relief under Wis. Stat. 974.06 conclude that even if correct, We Allen is we have the authority inherent trial, to order new even where a appeal defendant's is not direct. Allen, 55-56, In 2d at 159 Wis. the court of
appeals statutory concluded that it did not have author- (1989-90) ity § under Wis. Stat. 752.35 to discretion- judgment arily of conviction because reverse Allen's denying appeal an order him relief was from Allen's (1989-90).24 § There, in a 974.06 under Wis. Stat. § contended that he was denied motion, Allen 974.06 jury improperly process instructions due because proof to him. Id. He conceded that the burden of shifted objection contemporaneous at the he had raised right jury and thus lost the instruction conference appellate the court of However, review. Id. asked discretionary power appeals reversal to exercise its judgment § 752.35 and reverse his under Wis. Stat. conviction. Id. at 55-56. rejected appeals Allen's re- 112. The court of statutory appeals power
quest. cited to its The court of provided "may discretionary reversal, it re- which may judgment appealed from,... or order verse the judgment entry proper or remit the direct the of the entry proper judgment case to the trial court for (quoting n.2 Stat. a new trial. . .." Id. at 55 Wis. or for *35 (1989-90)). appeals § However, the court of 752.35 24 statutory appeals The court of noted that its discretion ary power reversal stated: appeals, appears appeal if it from the In an to the court of tried, controversy fully not been or that it
record that the real has miscarried, any probable jústice the court that has for reason is from, regardless may judgment appealed of reverse the or order objection appears proper in the record and the motion or whether may entry proper judgment the or remit the case to the direct the of trial, entry proper judgment or a new and trial court the for making of for pleadings in and the of such amendments direct the court, adoption procedure of in that not inconsistent such justice. rules, necessary accomplishthe ends of or as are statutes (Ct. Allen, n.2, App. 464 426 159 2d 55 N.W.2d State v. Wis. 1990) (1979)) added (emphasis § 752.35 (quoting Wis. Stat. appeals). of court appeal "[w]hen
stated that an is taken from an unsuc- [§ 974.06, cessful collateral attack under Stats. (1989-90)] against judgment judgment order, a or that "[a]ll or order Instead, is before us." Id. at 55. before an order is us is which refuses to vacate and set judgment grant of conviction aside or to a new trial or to correct a sentence." Id. Thus, at 55-56. the court appeals statutory discretionary of concluded that its power permit go reversal did not it "to a behind [§ 974.06] judgment order to reach the of conviction." Id. at 56. appeals'
¶ 113. While the court of
and this court's
discretionary
powers
reversal
are coterminous, Vollmer
Luety,
(1990),
1, 18,
v.
2dWis.
court
or
new
for
for
*36
making
pleadings
direct
the
of such amendments
in the
and the
court,
adoption
procedure
of such
in that
not inconsistent with
necessary
accomplish
justice.
rules,
are
as
to
the ends of
statutes or
DiVall,
145, 153,
2d
v.
121 Wis.
358 N.W.2d
Stivarius
McConnohie,
362,
v.
2d
(1984);
State
113 Wis.
(1983).
369-70,
From the statute's this court "reverse may entry proper direct the of the appealed or order ... and entry the or remit the to the trial court for the judgment case trial." Id. or for first of the judgment part a new The proper clearly says can an "order this court reverse sentence appealed appealed The order from here is the order from." court original judgment aside the that refused to vacate and set and order a trial. conviction new
However, order, not appeal if an is here from that it does underlying court to the powerless this is reverse follow provides that the of the sentence judgment. part Note second power entry proper remit the case the trial court for "to to or for a new trial." The fact that the "order" is judgment word may power court's to language this not affect this reverse order, is, an underlying judgment. appeal That if an is taken from order a or reach the may power we retain to new trial still discretionary underlying judgment power. via reversal our Nonetheless, directly reach the under- power even if our "order" is not lying judgment is restricted because word sentence, language, this contained in that then statute's that denied may properly still reverse order court for a new Armstrong's motion for a trial and remit the case new for denying order the motion trial. We can vacate trial court's grant court the motion. trial with directions for the circuit new day. event, leave of this another any In we resolution issue for *37 (citations omitted). 325, 2d 659 N.W.2d We conclude exceptional case, this is an invoke our inherent powers denying the and reverse circuit court's order Armstrong's request for a new trial remand this grant Armstrong case with directions new trial.26
B
Vollmer,
noted in
115. As
this court
con-
has
controversy
fully
cluded
real
that
was not
tried
important
erroneously
where
evidence was
or
excluded
where the evidence was admitted that should have been
Vollmer,
excluded.
¶ 116. Because of the similarities be- present Hicks, tween the case we set forth a detailed discussion the Hicks case. assume, decide, We will but not our inherent author
ity applies statutory discretionary the same criteria as our power. reversal Under the statutory discretionary reversal power, controversy when real fully tried, has not been court required is not to find a probability substantial of a different Luety, 1, 19, result on retrial. Vollmer v. 156 Wis. 2d (1990). 456 N.W.2d 797 our discretionary although
We also add that power, reversal exceptional circumstances, to be invoked in plenary is and not necessarily by any possible restrained other means of relief. J., Compare Roggensack, dissenting, ¶¶
c Hicks, defendant was convicted In robbery, burglary, sexual assault. and two counts of The convictions stemmed Hicks, 2d at 152. 202 Wis. allegations defendant, who was a black apartment was a victim, who man, entered the *38 felony, a forced the commit female, with intent to white separate intercourse, and acts of sexual into two victim Id. at 153. then stole $10. she that while
¶ trial, At the victim testified morning, ready getting heard a she for work one apartment a.m. Id. at around 7:25 her door knock at peephole through the door's looked 153-54. She the man The victim said man. Id. at 153. saw a black neighbor upstairs and asked her himself as identified phone phone, Id. It his was broken. her as he said use stipulated in the same defendant lived to that the apart- complex apartment and that their as the victim walking of each distance 90 seconds ments were within Id. at 154. other. apartment, her
¶ the man into The victim let phone to the was, and then went him where showed ready getting Id. at 153. for work. finish bathroom mirror. her in the face the man's behind then saw She neck to her head and a scarf around The man threw Id. sexually her twice over assaulted her and then blind During assault, at 153-54. minutes. Id. next 30 caught glimpses and heard the man's face victim intermittently. victim speak at 154. The Id. to her man apartment a.m. around 7:55 left the stated assailant Id. days the victim identified later, 120. Two line-up. eight-man from an as the assailant
defendant police arrested, the seized defendant was Id. After the they "Caucasian" head-hair found on the inside of the pants wearing. pants the defendant was Id. The were apparently pants not the same the victim said the wearing defendant was at the time of the Id. assault. "Negro" ¶ 121. A head hair was found on the days addition, victim's comforter. In after the as- police sweep sault, the conducted a vacuum of the apartment physical victim's for evidence and found four "Negro" pubic only hairs. Id. The victim said one other person apartment black had been in her before the years assaults, a woman two earlier who asked to borrow blanket. Id. at 155. apartment 122. Also recovered from the were
specimens semen, blood, and saliva. Id. at 155. analyses specimens However, DNA were incon- sampling clusive due to insufficient sizes. Id. at 155. ¶ 123. To bolster the victim's identification of the presented defendant as the assailant, the State testi- mony analyst from a State Crime Lab who conducted *39 analyses of the various hairs that had been recovered. analyst opined physical Id. at 154. The that the char- apart- acteristics four of the five hairs found in the ment were "consistent," while the other hair was "simi- lar," with hairs obtained from the defendant. Id. at analyst opined physical 166. The also that the charac- teristics the hair recovered from the defendant's pants was "consistent" with the victim's hair. Id. at 154. analyst agreed fingerprints, The that unlike micro- scopic comparisons yield hair can never a definitive Thus, identification. Id. degree she stated to a reasonable certainty, of scientific that the hairs recovered "could have" come from the defendant and the victim. Id. at 154-55. The State claimed all that of the hairs person, Id. at 166. from same the defendant. came However, the did not have DNA tests conducted State hairs. 155. on the Id. at theory he 124. The defendant's at trial that apartment. at 163.
had never been in the victim's Id. girlfriend, living The defendant's who was with day time, at testified that on the of the defendant apartment left 6:40 assaults, the defendant around go However, to Id. at she stated a.m. to work. 155. about 20 minutes later because he was returned feeling apartment well. go she left the at 7:00 She stated presented Rockford, also Illinois. Id. She a.m. telephone made bill showed a call their apartment at in Rock- 8:12 a.m. to her mother's house girlfriend made The testified that the defendant ford. employer testified call. Id. The defendant's also this called in sick sometime between the defendant Id. 7:00 a.m. and a.m. 7:30 words, In could not 125. other the defendant during for his the time
otherwise account whereabouts a.m. 7:55 assault from 7:25 a.m. until ¶ used hair evidence to show The State likely [the defendant] committed that it was "more Indeed, trial, the State the crime." Id. at "strong" "powerful" evidence as characterized the argu- guilt. During closing Id. State's relying on the victim's identifica- ment, addition to expert's opinion heavily tion, the State relied at the were that the hairs found scene consistent provided by Id. at "matched" the defendant. or those argued: The State 167-69. only positive as it positive Not do we have —as *40 [the of this crime of
gets victim —identification that, defendant]; there are the [i]n but .. . addition to standards, hair unknowns, the hair standards and compared were and found consistent.
[Defense complains days! counsel] about 15 The mighty and powerful Madison Police Department waits days to vacuum up the foot of [the victim's] bed!
Well, you let me remind that one of those hair samples came from the comforter. One of the hair his, samples, that matched his, that was consistent with came from the comforter that very was seized that morning.
The other hair samples came from the vacuumings. And did it they matter that days were 15 later? There were still hairs there that were consistent They with his! were still laying there. . .. Those hairs there, been, were still they where they had where had fallen when he was in that apartment. They were still there, to be matched up with his.
Id. 167-69 (emphasis added.) 127. Regarding the consistency the hair recovered from the defendant's leg, State claimed:
The other Remember, hairs. the one that came out of pants, his head, that matched her diligently was taken when [the victim] was taken for an exam and her hair standards pulled. were
And when custody, he's taken into pants those are And, taken custody. behold, into lo and that's where her comparison, her hair comparison comes from!
Id. at 169. 128. The State best summarized its case with following argument closing: *41 description. Let's guy
"Here's a that matches the in a line-up." him put behold, says, him.
And, [the victim] lo and "That's him." I'm certain that's behold, And, right lo minute and a lives —a away from her!
half up. his hair matches And, behold, lo and And her in his Her hair is in his hair is clothes! clothes. added.) (emphasis 169-70 at
Id. jury all ¶ the defendant on 129. The convicted charges. testing, re- however, 130. Postconviction DNA hair inconclusive results as to the source
vealed pants, head hair obtained on the defendant's found pubic hairs comforter, two of the from the victim's sweep. Id. Of the vacuum obtained actually pubic hairs, one of them revealed other two presence sources, other with the of two different DNA possibly stemming from blood or semen DNA source main defendant excluded as the the hair. The Id. expert testing DNA, the DNA could source of but other to his connection with the form a conclusion as testing pubic of the other Id. From DNA DNA source. agreed may expert also have contained hair, which expert sources, testified that different DNA two pubic source of that hair. defendant was not the Id. court denied the defendant's 131. The circuit In an ineffective for a trial. at 157. motion new Id. analysis, the trial court concluded assistance counsel reasonably probable DNA it was not testimony new in a verdict at a would result different appeals
trial. Id. at 157. The court of reversed, conclud- ing that the defendant's counsel was ineffective for failing pubic subjected analy- to have the hair to DNA sis. Id. at 152. This affirmed, court but on different grounds. discretionary This court used its reversal powers controversy fully because the real was not tried. Id. at 152-53.
¶ 132. This court determined that the sole issue [the in the case was identification: "whether defen- dant] [the apart- victim's] was the man that entered ment jury and assaulted her." Id. at However, the opportunity "did not have an to hear and evaluate testing [the evidence of DNA which excluded defen- dant] pubic as the source of one of the four hairs found at contrary, the Quite scene." Id. to the the State presented consistency the hair evidence as "affirmative proof guilt," by of an assertion later discredited the DNA 161, tests. Id. at 163. Because the defendant's theory was that he had never been in the victim's apartment, and because of the of inconclusiveness the other results, DNA this court concluded the conclusive DNA test that excluded the defendant as the source of the hair piece "could have crucial, been a material evidence."27Id. at 164.
¶ 133. That DNA tests were done, later however, discretionary did not of itself warrant reversal, this court stated. Instead, the determinative factor was assertively "that repetitively the State used hair throughout the course of the trial as affirma- proof [the guilt." defendant's] tive Id. This court observed: recognized This court jury the did not hear of the DNA evidence not because the trial erroneously court excluded it, but because the yet results did Hicks, exist. State v. 150, (1996).
Wis. 2d
ici. attempted appeal, the State down- 134. On play trial and went so far use of the hair evidence at its 165,166. Id. of the evidence. the value as to discount persuaded, stating "a review of the This court was not opposite The State conclusion. record leads us to throughout the trial as affirma- this hair evidence used [the defendant's] proof guilt." Indeed, Id. this tive the evidence as State characterized court noted that the "strong" "powerful" in trial court. Id. 166-67. detailing the evi- use of 135. After State's closing argument, concluded that in its this court dence "[b]ased *43 simply say cannot record, on of the we a review any degree certainty this hair evidence did of with In court's verdict." Id. at 171. this not influence the merely more than view, results did much the new DNA away" "chip case leaned case, as the State's State's that no the victim's identification and assertion on years. apartment person in in two had been her black "[t]o that the the extent This court concluded Id. [the accuracy questions jury may of about the have had questions likely victim's] were an- identification, these use of the hair evi- the State's affirmative swered Therefore, Id. this court held: dence." controversy fully not tried inasmuch as: real [T]he (1) excluding defendant] as the [the the DNA evidence donor of one specimens of hair relevant (2) identification; critical issue of jury did not hear (3) evidence; instead, this and the State used the hair assertively repetitively evidence as affirmative [the proof guilt. defendant's] of Id. at 172.28
D
attempts
distinguish
136. The State
(1)
present
following grounds:
case from Hicks on the
appeal
appeal
Hicks,
in
shortly
the defendant's
was on direct
Armstrong's appeal
after the conviction, whereas
(2001-02)
§
premised
a
is
on Wis. Stat. 974.06
motion
(2)
years
Hicks,
filed 20
after
trial;
his
in
there was no
explanation
reasonable
for the defendant's hair to
inbe
apartment
the victim's
there,
unless he was
where here
(3)
being Kamps' apartment;
admitted to
in
prosecutor
repeatedly
Hicks,
focused
on the hair
proof
guilt,
prosecutor
of
evidence as
argued
whereas here the
physical
only provided
evidence
an inference
(4)
guilt
focusing
while
evidence;
all the other
strong,
Hicks,
the State did not have an abundance of
guilt,
circumstantial evidence of
whereas here the State
persuaded.
claims it does.
are We
already
First,
we have
concluded that we
power
have inherent
to reverse a conviction and
order
reading
Even
casual
of Hicks reveals how the dissent's
distilled
discussion
holding.
case does violence to its
Hicks,
Compare
692 timing justice. Further, in the interests new trial years Armstrong's appeal his conviction is 20 after Armstrong's meaningful that distinction. It is true not a testing. long before the advent DNA trial occurred only agree it was However, we with testing through technological happenstance that DNA in Hicks on his direct to the defendant available was appeal.
2 escapes us. ¶ second distinction 138. The State's in Hicks claimed was the defendant It is true that apartment. However, here, Arm- in victim's never Ramps' apartment strong not in he was claims the hair evidence murder. The State used time of her prove apartment must have in the been Ramps is, the State used the was murdered. That when exactly Hicks, and, manner as the same evidence just below, as the evidence was based on our discussion Armstrong.29 damaging against disingenu- is The State's third distinction simply use the more than trial, At the State did ous. guilt; it physical inference of an evidence establish "finding argues that hair consistent The dissent J., Roggensack, did undermine his defense." Armstrong's not If defense dissenting, point 186. This is absurd. murdered, Kamps there was that he was when hair as repetitive use of the State's affirmative absolutely the murderer proof "conclusive" his defense. undermined
used the physical assertively evidence and repetitively as affirmative proof guilt. of Armstrong's closing In argument, the State presented its case as boiling down to five points:
All the evidence we have presented demon- beyond any strates doubt that Ralph was at Kamps' apartment early Charise morning in the hours 24, 1980, murdering of sexually June assaulting her.
. . . We divided evidence that presented has been at trial into this five areas. The first area is times. The defendant could Kamps' not have been at Charise at a he time said he And exclusively was. the evidence shows impossible. that it was
The second area evidence deals with the testi- mony of Riccie Orebia and Laura Chafee at West Gorham and 120 West Gorham and who made certain to put Ralph Armstrong observations at Charise Ka- mps' apartment midnight after of June physical
There was Physical evidence at the scene. evidence to demonstrate conclusively Ralph Arm- strong person is the who murdered Kamps. Charise
There physical Ralph is also evidence on that ties him precisely the scene the crime. That's the third area.
The fourth is the defendant's interest in Charise Kamps by testified number of witnesses and grudgingly admitted the defendant. And very clearly evening 23, 1980, of June he May with Jane later in evening went when he out and, finally, with her when he went apart- over to her conveniently ment and he murdered her. cred- of the defendant's
Finally, there is issue through here and lied his got up defendant ibility. The added.) (Emphasis teeth. could why 141. After arguing the time he claimed where
have been on the murder, physical the State focused *46 evidence: physical about the description lot of have heard
You scene, of describ- people at the that was found that were col- body, about items of evidence ing the scene, hairs, samples, analyses blood lected called to subsequent police to that. The were conducted 24,1980. go They one o'clock on June the scene at about they pictures thing they did was took The first there. and check preserve the scene they wanted because the evidence afterwards. robe, found on Kamps' the hairs Regarding
¶ the State claimed:
Now,
what
an
see
you
opportunity
have
Armstrong commit-
right
Ralph
looked like
after
scene
they
on
what
saw
(indicating).30
That's
ted
murder
Charise
That was
(indicating).
Kamps.
Charise
the bed
you
marks on the
I
to look at
smear
Kamps. want
(indicat-
angle
real
from this
You can't see it
well
legs.
it. You
Officer Fisher describe
ing). You have heard
finger
it
like
May
says
It
Jane
describe it.
heard
So,
found in
Kamps was
(indicating).
Charise
paints
on. This
with that robe
feces and on her bed
blood and
body.
Kamps'
on
of Charise
(indicating) lying
top
is it
made were to
above, the
the State
indications
As noted
body "nude, lying on
depicting Kamps'
photographs
crime scene
back,
thighs."
buttocks and
face,
on her
her
with blood smeared
Armstrong,
Two hairs were on this robe. One of defendant's (indi- Kamps' right Charise body hairs there across the cating). Regarding findings trace amounts of thumbnails,
blood underneath Armstrong's the State maintained:
The fingers defendant's were tested down at the police Wegner station. Jill ran the hemosticks around cuticles under the thumb and under nails every finger and around the cuticles of lo behold there every fingernail, was blood under every single one. That Kamps' (Emphasis was Charise blood. added.) 144. Finally, regarding the on semen Kamps' robe, the State argued: picture
This shows Charise robe. (Indicating.) right It's next to the bed. testimony You heard about Wegner that robe. Jill performed tests it and she looked for seminal material and she found it. Found *47 spots of it. analysis She did an on trying that. She was to determine the type person blood of the put who So, seminal fluids on the analyzed robe. she it and found that it came from a person with Atype blood who secreted type body fluid, semen, this blood in his in his saliva, in his in his tears. And analyzed she Ralph Armstrong's Armstrong's blood and Ralph saliva. a type A secretor. 145. rebuttal, In the State summed
¶ up physical evidence as follows: physical
The evidence on Ralph Armstrong at the scene him irrevocably ties to the murder Kamps. Charise of Ralph Armstrong That was in the apartment of Charise Kamps. certainty And that's that that's not impor- less added.) tant that the (Emphasis defendant is a liar. 696 attempts Hicks, to the State now 146. As in physical significance downplay of its use Hicks, at An Wis. 2d 165. examina- See 202 evidence.31 argument, closing however, belies tion the State's merely evidence to that it used the assertion State's guilt." in con- Indeed, stark an "inference of establish argued the hairs Hicks, where the State trast in this case went defendants, the State "matched" physi- argued The State that the much further. further, "conclusively" that Arm- demonstrated cal evidence argued strong there The State the murderer. was Kamps' apartment explanation in for the hair nowas except And the the murderer. for the fact that was argued underneath the blood found State blood.32 nails stronger Finally, argues had a the State it against than it case circumstantial evidence including eyewit- against Hicks, in the defendant did argue: goes The State so far as now most, is, proof hairs that the two head The new DNA evidence at unidentified, person an time an unknown unknown came from hair, mobility of the source in an unknown manner. Given the Kamps1 may person be who was never even of the two hairs body apartment, until after the or was never there who probable that the evidence makes it discovered. The new DNA simply to the crimes at all. hairs are not connected "mobility hat, this as put The State has defense's to the argument presented is precisely hair" buy it. jury jury The did not arguably only presented that evidence the State The guilt was the nothing more than an inference established *48 evidence, type came a A secretor noted it from as State semen Armstrong such secretor. only noted that and then 697 testimony Armstrong ness that identified as the man Kamps' apartment who entered and exited at the cru- Armstrong's time, demolished, cial that alibi was deposit money day made of after Kamps' murder that was similar to an amount that was missing Kamps' apartment, jury and that credibility Armstrong's light evaluated in of the fact prior light Hicks, that he had six In of convictions. we persuaded are not this circumstantial evidence weighs heavily, at all, if in the State's favor. Regarding
¶ 148. identifications, Orebia saw the perpetrator from some distance. While Orebia vacil- (and multiple lated on although occasions about what he saw appears it that his recollection was later by hypnosis),33 ultimately refreshed firm remained person was the he saw. By Hicks, contrast, the victim saw the perpetrator up-close person. Hicks, 2dWis. reading Hicks, at 154. of From our no there is indication that the victim on her wavered identification. Never- theless, this court still reversed because of the State's proof guilt. of use the hair as affirmative jury may This court wrote: "To the extent that questions accuracy [the victim's] have had about the questions likely identification, these were answered the State's affirmative of the hair use evidence." Id. at 171. The same true is here. Regarding
¶ alibi evidence, has argument why crafted an intricate to show the State's impossible wrong. assertion that his alibi was is The Armstrong, 565-76, In 110 Wis. 2d at which was appeal, direct this court established framework determining admissibility for hypnotically refreshed rec ollection and procedures concluded that to hypnotically used testimony impermissibly refresh Orebia's suggestive. were not *49 jury by noting not the did State, course, of refutes this Armstrong's explanation accept of his whereabouts. Armstrong. against not However, does militate this Hicks, lived in the ¶ defendant, the who 151. In apartment complex the and within as victim same walking-distance, prove he was could not 90-seconds Id. at 154. at the time assaults. somewhere else he in the victim's that was not He had evidence show apartment assaults, after the but before and both during the time of the where he was could confirm 154-55, id. at a.m. 7:55 a.m. See from 7:25 assaults the because of Nevertheless, this court reversed 163. evidence as in the used the hair manner which proof State guilt. at 172. The State has done of Id. affirmative thing here. the same money respect deposit
¶ of Last, 152. with to the morning murder and how the after the made deposit him, character for and with was out of such juiy's respect of credibil- to the assessment place prior light ity convictions, we cannot of his six weight propensity great and character evidence. on this Surely case, the evidence can it to the State's but adds proof hardly categorized strong as circumstantial be light Hicks, in from realm of removes this case hair, semen and blood we know about how what now by it used the State. evidence and how was persuaded Therefore, are not we presented the State distin- evidence circumstantial guishes case Hicks. this
E simply record, we on review the Based any certainty physi- say degree cannot jury's verdict. See did not influence cal evidence Hicks, 2d at 171. The Wis. sole issue the case was one of identification: whether Orebia saw Kamps1apartment enter time of murder. Compare id. at 163. To bolster Orebia's identification, powerful jury the State flaunted conclusions before the physical conclusively irrevocably that the However, established as the murderer. *50 jury presented based conclusions on evidence that key are now found to be with the The inconsistent facts. draped Kamps' on hairs the belt bathrobe that was over body Armstrong's are not the semen found on Kamps' Armstrong's. In addition, robe is not there is no any may indication that blood that have been the Kamps.34 hemosticks of was that jury opportunity ¶ 155. The did an not have to hear and the evaluate DNA evidence that excludes Armstrong as the source of hairs the and the semen. "chip away" This is not evidence to tends at the Compare accumulation of the State's evidence. id. at pivotal 171. The DNA evidence discredits one of the pieces proof forming very of the foundation of the theory If correct, State's case. the State's is that the is from semen the murderer and that the murderer's draped fell on hairs the bathrobe belt that was across body, Kamps' person Armstrong. then that not is To the jury testimony extent the had doubts about Orebia's or Armstrong's deposit the inference draw of money day Kamps' questions the murder, after those
34 By making observation, do disregard any this we not of Contra findings. the Roggensack, J., circuit court's dissenting, Instead, simply recognize we the limitation of this physical Wegner evidence: herself testified that could she not determine of source the human blood found underneath Armstrong's toenails, fingernails big yet argued the State it was in fact blood. by physical likely of use were answered State's ("To Hicks, the extent See 202 Wis. 2d at evidence. questions jury may accu- had about the have that racy questions [the victim's] identification, these of likely of affirmative use answered State's were evidence."). the hair Arm- The now DNA evidence excludes
strong physical certain evidence as the donor of identity; jury did to the critical issue of was relevant physical evidence, and used the not hear this the State repetitively assertively as affirmative affinity guilt. proof Armstrong's Because Hicks, reverse this case and we between justice judgment be- the interests conviction fully controversy There- real tried. cause new trial. fore, remand this matter for a we H-1 H-C H-! arguments parties con-
¶ 157. Both have briefed cerning new trial entitled whether is *51 newly discovered the DNA results constitute because on the interests of Because our decision rests evidence. justice, new decide whether a trial should we decline to newly evidence.35Nev- be based on discovered ordered clarify proper opportunity to the ertheless, we take this newly analyzing evidence. discovered test for the "moun problems note that there are dissent's We not incriminating is tain of other at here." any DNA results issue way by test affected J., prob of those dissenting, 174. Here are some Roggensack, lems. eyewitness testimony
First,
the dissent contends that
Armstrong's
apartment
"at
placed
Kamps’
vehicle
of the murder." Id.
the best the State could
Actually,
the time
anywhere from mid-
Kamps was murdered
determine was that
228,
158. Quoting
Avery,
State v.
213 Wis. 2d
(Ct.
1997),
(1) moving The party's evidence must have come (2) trial; knowledge after moving party must not Thus, night to 3:00 a.m. placed Armstrong the evidence and his around, building at, apartment vehicle at not time the murder.
Second, the dissent contends that there "human blood Armstrong's fingers around all 10 of and on his toes . . . Id. ." Actually, Wegner's hemostick test results presumptive were positives alone, the presence blood. From Wegner this for could human not determine whether the blood was or whether it was blood in even the first instance. See Wegner I.B.3.C.infra. did scrapings take Armstrong's from underneath thumbs big did toes and determine that there human blood under- neath both thumbnails and big toes. She did conduct scrapings under Armstrong's fingers the rest of or toes.
Third, the dissent Armstrong's contends that failure to call his brother at trial as a material witness to corroborate Armstrong's testimony weighs against Armstrong. Id. is This little than shifting, more burden and the dissent has not explained anyway how this is in proper.
Fourth, the Armstrong's dissent states that brother did not file an affidavit with current motion for a new trial. However, Id. explain dissent does not how this affects whether a result different would occur at a new trial. While affidavit, filed, such an if would be relevant to support his motion, the converse is not true. The statement is irrelevant.
Properly viewing evidence, the dissent's "mountain may However, evidence" be little more than a molehill. See id. we *52 do not of reach issue whether there is a probabil- reasonable ity that a different would result be reached at a new trial.
702 (3) it; seeking in to discover negligent been have (4) issue; the testi- material to the evidence must be testimony merely cumulative to the mony must not be (5) trial; and it must be was introduced which be reasonably that a different result would probable a trial. reached on new
Armstrong, 2002AP2979-CR, Nos. 2001AP2789-CR op., unpublished slip ¶ 32. Avery clear An was whether the issue prob- convincing applies to the reasonable standard agreed
ability that the standard factor. The defendant newly proof claim was "clear discovered evidence of a argued convincing evidence," that the standard but proof facts were undis- because the of was irrelevant Avery, puted The 2d at 235. court in his case. Wis. "[a] stating rejected argument, appeals fact this of operate Rather, the fact in a vacuum. finder does not necessarily by to mea- a standard which finder needs sought." the relief certain facts warrant sure whether appeals concluded that Thus, the court Id. at 236. convincing by evi- clear and defendant must establish probability that a a reasonable dence that there is reached on a new trial. result would be different Project contends Amicus for the Innocence Avery imposing a double burden on court erred probability defendants, that there is a reasonable first second, that that there is different result and then of a prob- convincing evidence of that reasonable clear and ability. Project argues that the "reason- The Innocence proof.36 probability" We factor is itself burden able agree. Armstrong argues that we should at least Alternatively, the evidence. preponderance the burden to a
lower *53 ¶ McCallum, 463, 473, 161. In State v. 2dWis. (1997), specifically court 561 N.W.2d707 this attached proof convincing the burden of of clear and only newly in on the first four criteria discovered evidence. This court stated:
First, prove, by the defendant must clear and convinc- (1) ing evidence, that: the evidence was discovered (2) conviction; negligent after the defendant was not (3) seeking evidence; the evidence is material to an (4) case; merely issue in the and the evidence is not If cumulative. the defendant four criteria proves these by convincing evidence, clear and the circuit court must probability determine whether a reasonable that exists a different result would be reached a trial. only
¶ In words, other there need be a rea- probability sonable that a different result would be gradations reached in a trial. There are no of a reason- probability; one, able either there is or there is not. language Avery Therefore, we withdraw probability concludes the reasonable determination convincing must made clear be evidence.
IV sum, In we conclude that is justice entitled to a trial in new the interest of because controversy fully the real Therefore, was not tried.37 we appeals' reverse the court of decision and remand this grant case to the circuit court with directions to his judgment motion to vacate the conviction order a new trial.
37 Hicks, In this court question "[t]here observed is no very capably professionally State presented case its jury." agree to the Id. at 172. We with that sentiment here. Nevertheless, justice require interests of now a new trial. By appeals the Court.—The decision of the court and the remanded to the circuit court is reversed cause proceedings opinion. for further consistent with this ROGGENSACK, J. 164. PATIENCE DRAKE (dissenting). majority opinion The reverses the court appeals affirming of denying Ralph Armstrong's decision the circuit court's order judg-
motion to vacate his Arm- conviction, ment of and it then concludes that *54 strong Majority op., ¶ is entitled to a new trial. 2. The majority opinion does so based its conclusion recently com- the results of DNA tests that have been controversy fully pleted prove the real was not tried. Majority op., ¶ However, 2. in this case actual issue newly evidence, is whether the which is discov- DNA probability a of a different ered, creates reasonable McCallum, at a new trial. See State v. 208 Wis. outcome (1997). majority 463, 474, 2d 707 The 561 N.W.2d juris- opinion side-step is able to our well-established prudence newly for discovered evidence and conclude only by to a new trial is entitled avoiding analysis the crucial of whether this DNA probability a creates a reasonable differ- a Because I ent result would be reached at new trial. create a conclude that this evidence does not reasonable probability a that a different result would be reached at I conclude that the real contro- new trial because versy, raped Charise whether and murdered Kamps, fully respectfully I tried dissent majority opinion. Accordingly, I affirm from the would appeals. the court of
I. DISCUSSION newly claim of discovered evi- dence sufficient to vacate his conviction is based on testing hairs found recent DNA two apartment Kamps1 found on semen stains bathrobe showing hair neither the nor the semen is his. DNA testing was not available in 1981 when tried. Newly
A. Discovered Evidence judgment In order to a set aside of convic newly tion, discovered evidence must be sufficient to that a defendant's conviction establish was manifest injustice. Krieger, 241, 255, State v. 2dWis. (Ct. 1991). App. determining N.W.2d 599 The test for proffered "newly whether the evidence is discovered" injustice" and whether it meets the test of "manifest has explained many appeals clearly been times. The court of set out criteria defendant must meet in order to allegation newly overturn a conviction on an based discovered evidence as follows:
(1) moving The evidence must have come to the party's (2) trial; knowledge moving after a party must not (3) negligent it; in seeking have been to discover *55 (4) issue; evidence must be material to the the testi- mony merely must not be testimony cumulative (5) trial; which introduced at it must be reasonably probable that a different result would be reached on a new trial. (Ct. Avery, 228, 234,
State v.
213 Wis. 2d
570 N.W.2d573
1997)
omitted).
App.
(quotation
proves
If a defendant
by
the first four criteria set out above
clear and con
vincing evidence, then "the circuit court must deter
probability
mine whether a reasonable
exists that a
different result would be reached" at a new trial.
McCallum,
¶ 167. The fifth criterion law, sets legal i.e., whether the facts of the case meet probability standard of a reasonable of a different assessing legal outcome at a new trial.1 Id. In this standard, we must determine whether there ais rea- probability jury, looking sonable that a at all the rel- regard evant evidence in to whether the defendant did or did not crime, commit the would have reasonable guilt. doubt as to the defendant's See id. at 474. This requires examination an assessment of all the evidence any, newly to determine what if effect, discovered reasonably probable evidence would be have on jury's verdict at a new trial. See id. proffered by
¶ 168. Part of the new evidence Arm- strong testing is DNA that shows that two head hairs found on the belt of bathrobe did not come from previously him. One of these hairs had been character- Armstrong's ized as "consistent" with hair and the other had been characterized as "similar" to hair. Wegner, expert, trial, At Coila J. the State's testified eight about her examination of exhibits that contained samples Kamps' apartment. hair taken from She ex- plained that the ran tests she could exclude donors of identify hair, but not them. When she described the eight explained hair from exhibits, she that for 36 of the Kamps hairs she could not donor, exclude as the but she 1 1 apply would newly discovered evidence test as it repeatedly stated, has change been rather than it to omit the requirement the fifth proved by criterion be clear and evidence, convincing majority as the opinion Majority does. op., However, I further, do not it address and I do not require the fifth criterion to met convincing be clear and evidence in dissent, this appears change because it this in the law was inserted, any albeit without explanation, into State v. McCal *56 lum, (1997). 463, 474, 208 2dWis. 561 707 N.W.2d
707 For as the donor. six Armstrong exclude could donor, as the Armstrong not exclude hairs,2 she could hairs of the six Only two Kamps. she could exclude but donor be excluded as the could not for which hairs, For thirteen both subjected testing. DNA were donors, and were excluded as Kamps A animal hairs. she examined were nine of the hairs said she about what she testimony of Wegner's review hair the donors of the relative to could determine how important to a consideration of is samples helpful of all is the context discovered evidence newly this as trial. testified Wegner presented the evidence follows: comparison?
Q: the result of that And what was microscopic consistent A: The head hair was head hair from characteristics with the standard in micro- It was not consistent Kamps. Miss Mr. the hair from scopic characteristics with Armstrong. hair
Q: something. me understand With Now let consistent, you you say it can analysis when eliminated testimony or she cannot be say that the source of the hair? as That is correct. A: consistent, you are
Q: you say And when it is not is saying person or that standard of the hair? eliminated as a source not be excluded as the Hairs for which could (hair taken from the belt of in Exhibit 27 donor were found (hair bathrobe), bathroom taken from the Kamps' sink) Exhibit (hair from blood and fecal-like and Exhibit 43 taken body). material near
A: That is correct.
Q: only So this is a hair or examination which person, person?
excludes a it never includes a them, identify A: It could include but not them.
Q: identify It can't them? No,
A: sir. Q: there any any Is method whatsoever similar to — fingerprints identifying given for a hair with a
given person you say where can certainty with a degree or to a reasonable certainty scientific person? that this hair came from this (99.9%) In ninety-nine point percent A: nine of the you say time a specific could not that hair came specific from a individual.
Wegner very probative clear about the value of the analyses completed. hair she closing argument, attorney In the district
argued Armstrong that the hairs for which could not be Kamps1 excluded as a donor and tied him were his Armstrong's attorney argued murder. that the hair analyses identify Armstrong did not as the donor of only hairs, that could not be excluded as the donor. argued being He also admitted to Kamps' apartment evening earlier in the of her murder freely place place, and because hairs move from presence of those hairs did not show com mitted the crimes. He hair said that the movement of by presence was demonstrated of animal hairs Kamps1apartment pet. when a she never had testing proffered also DNA they samples Kamps1bathrobe that showed
semen newly Kamps' flaneé, Dillman, Brian as came from Wegner trial, At testified that evidence. discovered bathrobe was stain that was found semen Type-A secretor. She testified both made Wegner Type-A Armstrong and Dillman are secretors. Type-A population are also testified 80% *58 attorney closing argument, the district In secretors. by Type-A stains were made a said that the semen Type-A a and that was secretor. secretor attorney carefully Armstrong's explained that Dillman Kamps a lovers, and because Dillman was and were repeated Type-A He also secretor, the semen was his. testimony population Wegner's are of the 80% jury Type-A Therefore, could not have secretors. weight reaching given its verdict this evidence much Kamps. Armstrong raped and murdered ¶ on the There is another fact that bears 171. anally testimony Kamps raped semen. about object. injuries vaginally a hard Her were with body part. by being raped Therefore, it is caused perpetrator of that semen from the this understandable crime crime was not left at the scene. important keep in mind that the It is Armstrong proffers exonerating is not
DNA evidence Instead, as DNA evidence can sometimes be. evidence only part one this evidence affects one of of five jury. presented categories evidence the State to the Armstrong's not affect defense: that he And, it does Kamps' apartment, not at the time of her was at but Physical presented that was to the murder. jury Armstrong's fingerprint bong in on a included possible Kamps' apartment;3 hairs; connection to six Kamps1 bathrobe; on human blood the semen stains Armstrong's fingers and around his around all 10 of except toes, for little and blood on his toes, his two smearing Kamps' body face, as watch; blood though "finger-painted" with her own had been she Armstrong's deposit later on the morn blood;4 of $315 paid ing had murder, when $400 missing Kamps apartment from her after the entry murder; and the lack of a forced into night apartment the murder. The DNA test physical evidence. do not affect most this results majority opinion implies that the tes- 173. The timony detect of Dr. Edward Blake that he could not piece accompa- of cloth and blood when he examined nying prepared scrapings slides from the great Armstrong's toes undermines thumbs Wegner's testimony human blood that she detected fingers most of his around all and around Majority op., ¶ court However, the circuit toes. testimony regard in this was not found that Blake's *59 finding are not free to This is a that we credible. Gregory, disregard. Micro-Managers, 147 Wis. 2d Inc. v. (Ct. 1988) (the App. determi- 500, 512, 434 N.W.2d97 court). credibility is for the circuit nation of a witness's linking potentially Arm- Therefore, the blood evidence 3 in the only fingerprint This the found is given Armstrong testified that apartment, which is curious that juice, played beer and glass orange half a bottle of he drank a Kamps' turntable when he was there. music on the bathroom Wegner that she did not check Ms. testified Therefore, jury the was not asked to do so. for blood because she in up the murderer cleaned testimony heard no about whether leaving the scene. Kamps' bathroom before by strong to the murder has not been refuted the part defense, and remains of the State's case. refusing apply newly In the discovered majority improperly ignores opinion test, the incriminating Arm- the mountain of other evidence any way by strong in that is not affected the DNA test (1) presented results at issue here: the time evidence Armstrong showing State, the that could not have Kamps' apartment p.m. been at between 9:10 9:30 (2) Armstrong's was; as he testified at trial that he (3) fingerprint Kamps' apartment; eyewitness the testimony placed Armstrong's Kamps' apart- car at (4) eyewitness murder; at the time of the the ment testimony placing Kamps' apartment at (5) missing murder; the time of the Kamps' $400 Armstrong's deposit apartment and $315 (6) day;5 entry next apartment, suggesting the lack of a forced into voluntarily
she let in her mur- (7) derer; romantic interest had (8) Kamps and her interest; rebuff of that the human Armstrong's fingers all 10 of blood around and on his (9) parking watch; toes and the blood on his ticket showing Armstrong's parked car near the was not back (10) May's apartment door of entered; where said he testimony entering May's that someone was heard bank, trip did not mention his but leaving May's apartment, instead said after he drove in Brittingham parks looking around and James Madison for a going source of to Kamps’ apartment. cocaine before He told police got that he some cocaine from a African- "well-dressed" "five-seven, American male who was about nine" five with a medium "afro" and "a mustache turns into sideburns." Armstrong changed story detailed after he this learned that law morning that he deposited enforcement knew had $315 Kamps’ body was discovered.
712 morning and 5:00 the between 3:30 building apartment (11) killed; lies repetitive Kamps (12) lack of jury; and to the law enforcement told to brother, could have who testimony by Armstrong's trial that his brother testimony Armstrong's corroborated Armstrong deposited the source of the $315 alibi; and Armstrong's part could have verified who (13) brother lack of an affidavit from in errs its utter opinion motions. The majority for these of evidence. of this mountain disregard time, majority In the issue of regard to mantra that he left his repeats Armstrong's opinion to May's in at 9:10 drove Fitchburg p.m., apartment off, her drove to in Madison and dropped apartment at Kamps' about 15 minutes Kamps' apartment, spent juice beer, drinking orange some drinking apartment Brent music and then drove to Goodman's and playing cocaine, p.m.6 there 9:30 arriving to buy house 6 court, Armstrong "Mapquest" includes In brief to this his times, that he showing driving implies, which he show printouts going to Brent alleges that he before could have done all objected to this properly The State p.m. at 9:30 Goodman's However, presented at trial. as evidence never presentation do possible it to using Mapquest, the times from is even to apartment from his Armstrong said he did because what minutes; Kamps' from address, 12 Mapquest lists Kamps' minutes, a Kamps' minute and from to Goodman's May's one the route that 23 minutes. This is not total of he went drove, regard stop Kamps' to his before he testified May off at her Goodman's, dropped he first because said However, changed his car to car. from apartment of 23 Mapquest lapse shows a adding the numbers even he had Fitchburg, when apartment he left his minutes after he was at Goodman testified only minutes available before includes no time Mapquest minutes from also his house. The 23 car, going changing cars and in and out of the getting people for *61 Majority op., Armstrong place ¶¶ 22-24. had to himself Kamps' at between 9:10 and his arrival at Goodman's at any may 9:30, if he was to cover for he have Kamps' apartment left at at the time of the murder. possible Armstrong says However, it is not to do all apart- did the 20 minutes between when he left his agree I ment and arrived at Goodman's. with the circuit jury Armstrong's court that if the had believed time evidence, he would not have been convicted. majority opinion ignores
¶ 176. The also how the unwavering description immediate and of a car that Armstrong's Kamps' matched apartment car as the vehicle seen at strengthens murder,
at the time of the eyewitness's identification of the man as who drove that car and went and out of apartment midnight night three times after on the Kamps majority opinion was murdered. The diminishes Riccie Orebia's identification of as the man Orebia saw because Orebia was reluctant witness hypnotized. gave had description Armstrong's However, been Orebia an accurate long being hypno- car before description changed. tized. That never jury's ¶ 177. The decision reflects its consider- categories7 pre- of all ation of evidence the State five ignored jury sented. It cannot be that if had believed into Kamps' apartment for 15 minutes as said he did, out, coming starting up driving the car and to Goodman's. The nothing 23 minutes also allocates all lights for the traffic along the routes shown on the Mapquest printouts. However you it, Armstrong slice could not have done all that he said he did in 20 minutes.
7 In order to summarize the evidence the State presented, attorney suggested district it represented categories: five evidence, time testimonial evidence of Riccie Orebia and Laura Chafee, evidence, physical testimonial Armstrong's evidence of being Kamps' testimony Armstrong's his trial About believing evening, the two in the while also earlier jury acquitted his, hair would have were strands expla- jury an is so was offered him. This because could have attached of how hairs nation photo shows, the belt. As the crime scene the bathrobe Kamps placed over after she was bathrobe belt was Therefore, blood. and smeared with her own murdered apartment, in the must been elsewhere that belt have *62 picked up easily could have the hairs that were it where being Kamps' body. prior placed If it, on to its found they jury Armstrong, have had would believed Armstrong's attorney pro- explanation believed Armstrong jury testify. The However, vided. saw newly By refusing apply jury to did not him. believe ignores majority opinion test, the evidence discovered credibility crucial determination. extraordinary presented an 178. The State eyewitness fingerprint to evidence, amount Armstrong prove car, and his of both identification question Kamps' Armstrong murderer. The was presented was, at trial "Given the evidence the evidence Taking Kamps?" you, did murder before presented away piece in from that was all question. change Arm- does the ultimate case not this apartment. Kamps' strong His he was in testified that not she killed. was that he was there when was defense part he was his brother for time He said testify May part did not for of it. His brother with May say apartment. to her returned could when at could not have been that would show he Evidence apartment eyewitness said he was when the regard significant new in at a be results would Armstrong's lies to Kamps she rebuffed and interest in which police and on the stand. witness presented
trial. The DNA evidence here does not affect testimony eyewitness testimony the time and the Armstrong's both car him, and of which were critical to his conviction. newly
¶ 179. The discovered evidence offered impact here is much different in its from the evidence presented that was Hicks, State v. Wis. 2d (1996).8 question Hicks, N.W.2d 435 In whether apartment. Hicks had ever been in the victim's only pieces tying There were two of evidence him to apartment that proved. trial, one of which was later dis impact cry
The of the evidence in Hicks is a far impact from the prof of the DNA evidence overwhelming fers because of the amount of evidence presented jury to the case. Accordingly, newly I conclude that the discovered DNA reasonably probable evidence does not make it that a different result would be reached. Controversy Fully
B. Real
Not
Tried
applying
newly
Instead of
discovered
evidence test as I
*63
have above, a test that
pass,
majority
fails to
Armstrong's judg-
the
reverses
theory
ment of conviction on the
that the real contro-
versy
fully
Majority op.,
was not
doing
tried.
156. In
majority opinion misapplies
so, the
precedent
our
equates
being fully
the idea of the "matter not
tried"
procedures
with new
way
scientific identification
in a
reopen
threatens to
every
convictions statewide
8
Hicks,
State v.
150,
202 Wis. 2d
(1996),
716 occurs, regardless time a scientific improvement the a effect on the issues probable underlying lack of meet of case not Because the facts this do jury's verdict. to a conviction under necessary reversing the criteria reed con- long-standing jurisprudence regarding our tried, I not court being would reverse the troversy fully of on this basis. appeals to a of court set aside ability 181. The this of discretionary-reversal the use our through
conviction In State v. Schuma often has been discussed.9 powers cher, 388, (1988), we 144 Wis. 2d N.W.2d real two for its use: when the identified avenues has has tried and when there controversy fully not been Id. at 400. The justice. proper been a miscarriage of a to set aside a conviction based motion analysis laid out carefully powers our discretionary-reversal then. Schumacher many cases since [Ujnder controversy fully category, not tried" "real (1) Either the different were included: two situations given opportunity important to hear jury was an case, testimony that on an issue in the important bore (2) testimony or jury had before it or admitted, and had this material improperly which been prevented issue and real contro- obscured crucial versy being fully from tried. discretionary- prong
Under
the second
statute,
justice"
"miscarriage
prong,
reversal
that,
grant
order to
discretion-
case law made clear
prong,
reversal
this
the court would have
ary
under
probability
be
that there would
a substantial
conclude
likely on retrial.
a different result would be
judgments
arises
discretionary power
Our
reverse
Luety,
2d
law. Vollmer v.
156 Wis.
both statute
common
(1990).
13,
717 (citing Wyss, 741, Id. at State 124 681, 400-01 v. Wis. 2d (1985)). explained 370 745 As we in N.W.2d Schumacher many repeated since, and have times "this broad discretionary-review power spar ... ... is be used ingly, only exceptional in circumstances." Schuma (citing Cuyler, cher, 2d 407 v. Wis. Wis. State (1983)). 2d 141, 327 N.W.2d662 majority opinion rely ¶ 182. The seems to on a testimony belief that thereby preventing issue," the hair "obscured a crucial controversy being
the real fully Majority op., ¶ tried. Its discussion focuses mainly Majority op., majority ¶¶ 117-35. Hicks. The opinion bases its decision on it as what characterizes "striking similarities" between Hicks and present Majority op., ¶ case. agree present
¶ 183. I not do that Hicks and the explain Instead, case are below, similar. as I two respects are cases dissimilar all that are material to controversy fully Hicks, whether the real was tried. In majority opinion upon the issue the turned was whether Hicks' claim that he had never been in fully apartment victim's due to tried Hicks' attor- ney choosing pursue testing DNA of hairs recov- Hicks, ered there. 202 Wis. 2d at 163-64. presence apartment,
¶ 184. Hicks' in the victim's presence, pivotal or the lack of his to the case because an Hicks is African-American and the victim
said that no other African-American male had been apartment except perpetrator her of the crime. Id. at 155. Five African-American hairs were found in apartment. theory victim's It was the State's at trial person: that all five hairs came from the same perpetrator. Id. at 165. It was Hicks' defense "that he [the apartment victim's] had never been in and could not have been the source of hairs that were found *65 Although testing was available Id. at 163. DNA there." trial, his chose not to of Hicks' trial counsel at the time Id. 155. evidence DNA tested. at have the hair analysis ¶ conviction, was After Hicks' DNA 185. specimens. performed The obtained results on the hair specimens inconclusive, but on of the were from some specimens, of the ruled out as the source two Hicks was following syllogism Therefore, was Id. 156. the DNA. at person, up: the the hair came from the same if all set only and the African-American, from an hairs were apart- had been in the victim's African-American who perpetrator crime, Hicks could was of the then ment the Accordingly, perpetrator. we con- not have been Hicks had in the of whether been cluded that the issue fully apartment not tried and Hicks was was victim's a new trial. Id. 171-72. entitled to present Hicks, ¶ hair recov- case, In the as inculpatory crime scene was of ered from the it was later trial, the time of and some of defendant at proved However, there the to be the defendant's. not similarity he had been Hicks ends. said to finding Kamps' apartment. Therefore, hair consistent Armstrong's The not his defense. did undermine with eyewitness his identifications of time during Kamps' apartment the time him at car and of exten- undermined his defense she was murdered when sively. point that bears mention- There is another regard
ing at issue here. the DNA evidence presented evidence," not at trial "false What ap- court of of that the characterization Armstrong, picked up. peals 2001AP2789 State v. Nos. (Wis. slip op., unpublished 2002AP2979, Ct. 2004). testimony Wegner's May App. her about analyses samples explained that hair could not excluded the donor six be as hairs explained tests that ran. She also she that those tests identify nothing could hair's donor. There was testimony. accurately "false"about this It described capability tests she conducted relative to the analyzed. hairs That there are more accurate DNA tests change capability now available does not Wegner's testimony tests or cause her about them become "false." *66 present majority opinion
¶ In case, 188. the the jury important states, the "First did not hear DNA important evidence bore that on an issue case." Majority op., jury ¶ 115. Of course the did not hear the DNA evidence. It did exist at not the time of the trial. expert testimony regarding Likewise, the the hairs Kamps' apartment properly found in was admitted at meaning "fully the the time of trial. It strains the suggest fully tried" to that case not physical tried because the scientific bases for evidence only set forth the in trial were at the state-of-the-art present. trial, time the but not state-of-the-art Using majority's controversy standard, the real can fully never be tried because scientific in advances gathering analysis evidence will continue to im- prove. majority opinion's explanation The of how the theory DNA evidence fits into the the real that contro- versy fully fallacy using was not tried shows the in why proper test and anis additional reason avenue to handle cases where new evidence is obtained I is, as explained newly have above, discovered evidence newly test. The discovered evidence test is best suited analyzing the new evidence the context of its impact presented on all the other evidence at trial. reject foregoing Therefore, for the reasons, I use discretionary real rubric of the under the reversal controversy fully tried.
II. CONCLUSION Accordingly, I conclude because probability not create a reasonable does DNA trial, at a new reached result would be that a different controversy, real I conclude and because Armstrong raped Ka- murdered Charise whether mps, fully respectfully 1981,1 dissent tried majority opinion. JON state that Justices I am authorized to join dissent. this T. PROSSER and DAVID R WILCOX