Lead Opinion
¶ 1. This is a review of a published decision of the court of appeals,
¶ 2. In 1995, a jury convicted Avery of two counts of robbery, party to a crime. Twelve years later, in 2007, Avery brought a motion for postconviction relief. Avery argued that he should be entitled to a new trial under the theories of newly discovered evidence and in the interest of justice. Both arguments were based on new expert analysis of a video of one of the robberies. By applying new technology, digital photogrammetry,
¶ 3. We conclude that there is not a reasonable probability that a jury, looking at both the evidence presented at trial and the new digital photogrammetry evidence, would have a reasonable doubt as to Avery's guilt. We also conclude that the court of appeals erroneously exercised its discretion when it failed to properly analyze whether this was an exceptional case that entitled Avery to a new trial in the interest of justice. Avery is not entitled to a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence.
¶ 4. In July 1994, Avery was charged with two counts of armed robbery, party to a crime, in violation of Wis. Stat. §§ 943.32(l)(b), (2)
¶ 5. During the four-day jury trial in April 1995, the State introduced two witnesses who had identified Avery as the perpetrator, Avery's confession, Avery's written apology, and a telephone conversation Avery had with his mother wherein he apologized for getting in
¶ 6. Blumenberg also testified that Avery had confessed to participating in both robberies. Avery was 19 years old at the time of his arrest and was a high school graduate. Blumenberg testified that he had interrogated Avery on the afternoon of July 10, 1994, and that Avery told him the robbers met up at Sherman Park before both robberies, drove over to the stores, committed the robberies, and drove back to Sherman Park. Blumenberg relayed that Avery confessed to being the person with the sawed-off shotgun in the video of the Malone's robbery and that Avery identified the rest of the robbers by their names or nicknames.
¶ 7. The jury was shown the video of the Malone's robbery during the trial to provide context for witness testimony. In closing arguments, however, the prosecutor asked the jury not to rely on the video for identification because it was of such poor quality.
¶ 8. Throughout the trial, Avery maintained his innocence. Three alibi witnesses testified that Avery was watching basketball at North Division High School shortly before the Malone's robbery.
¶ 9. Avery testified that on July 7, the date of the Malone's robbery, he and his friends watched basketball at North Division High School from about 7 p.m. until approximately 8:30 p.m. He testified that after the games, he went to two friends' houses and got home about 11 p.m. He also testified that on July 8, the date of the Attari robbery, he was at home and talking on the telephone with a high school friend. That testimony was corroborated by the friend and by phone company records. Finally, Avery testified that his confession was coerced. He testified that he maintained his innocence throughout the first interview in the early morning hours of July 10; that he did not sleep between the end of the first interview at approximately 5:30 a.m. and the beginning of the second interview, at approximately 12 p.m.; and that the detectives told him he could go home only if he cooperated. He testified that when he confessed, he was simply agreeing to the information that the detectives relayed to him, and that he wrote the apology because the detectives told him the prosecutor would not come down as hard on him.
¶ 10. On April 7,1995, the jury found Avery guilty of both robberies.
¶ 11. On June 17, 1996, Avery filed a motion for postconviction relief under Wis. Stat. § 809.30 (1993-94). The motion was partially granted and partially denied by the circuit court on October 1,1996, granting an evidentiary hearing. On December 4, 1996, the circuit court
¶ 12. Over 12 years after his conviction, on October 31, 2007, Avery filed a motion under Wis. Stat. § 974.06 (2005-06) for a new trial based on the theories of newly discovered evidence and in the interest of justice. His motion was based on analysis of VISARenhanced
¶ 13. On February 1, 2008, the circuit court denied Avery's motion for a new trial. Avery appealed and
¶ 14. At the hearing, Grindstaff testified that he conducted an analysis of the video. He explained how he applied the VISAR software to enhance the images and then used photogrammetry to estimate the robber's height. He explained the inherent uncertainties in photogrammetry analysis and the steps he took to minimize inaccuracies in his measurements. For instance, his analysis was based on images where the robber's foot appeared to be against the door frame and where the robber was standing, not walking. Grindstaff estimated that the robber was five feet, ten and one-half inches, with a one-inch margin of error. Grindstaff did not believe the robber could have been six feet, three inches tall, Avery's height.
¶ 15. The court also heard testimony from the State's witness, Richard Vorder Bruegge (Vorder Bruegge).
¶ 16. On March 11, 2010, the circuit court concluded that Avery was not entitled to new trial on the basis of newly discovered evidence. It concluded that the photogrammetry evidence met the four prongs of the newly-discovered evidence test, but that there was not a reasonable probability that a jury would have reasonable doubt as to Avery's guilt.
And Vorder Brugge [sic] .. . says Grindstaff didn't take into account things such as whether or not somebody is out of plane, how high was the camera, how far was the camera from the door, the posture of the subject. A big assumption is made that his foot is against the wall. You can't tell from even the enhanced video as to whether or not his knees are bent, even the knee you can see, because of the baggy pants that he's wearing. You can't tell if he's bent over from the knees, from the waist, from the neck....
... These are all variables which affect the reliability of the analysis of Mr. Grindstaff.
¶ 17. The circuit court weighed the photogrammetry evidence against the evidence at trial: Hamdan's identification, police officers' testimony of Simmons's identification, Avery's confession, Avery's written apology, Avery's apology to his mother, Avery's alibi defense, and Avery's retraction of his confession. The circuit court concluded that the new evidence is "simply not going to make a difference." The new evidence was "not reliable enough." The circuit court stated that photogrammetry is "an inexact science," unlike DNA.
¶ 18. At a hearing on July 1, 2010, the circuit court also denied Avery's request for a new trial in the interest of justice. The circuit court stated that granting a new trial in the interest of justice is done only in exceptional cases. It stated that the photogrammetry evidence did not "destroy" the State's case, but merely "chip[ped] away" at the case and thus, was not an exceptional case so as to warrant a new trial.
¶ 19. In October 2011, the court of appeals reversed and remanded for a new trial. State v. Avery,
¶ 20. Judge Brennan dissented from the court of appeals' decision. Id., ¶ 47. As to the newly-discovered evidence claim, she concluded that the majority's analysis took the circuit court's comment out of context. Id., ¶ 51. Instead of weighing the credibility of one expert against the other, Judge Brennan determined that the circuit court was balancing the new evidence, which is unlike DNA because it is an inexact science, against the old evidence, which the circuit court found to be strong. Id. Judge Brennan agreed with the circuit court, and concluded that the new evidence would not create a reasonable doubt as to Avery's guilt. Id., ¶ 55. She also concluded that Avery was not entitled to a new trial in the interest of justice because the real controversy of Avery's identification had been fully tried. Id., ¶¶ 57-58. The State had presented strong evidence that included two eyewitnesses and Avery's confession;
¶ 21. The State petitioned this court for review and we granted the petition on February 23, 2012.
II. STANDARD OF REVIEW
¶ 22. Avery requests a new trial because the photogrammetry evidence constitutes newly discovered evidence that creates a reasonable probability that the jury would have a reasonable doubt as to Avery's guilt. The decision to grant or deny a motion for a new trial based on newly discovered evidence is committed to the circuit court's discretion. State v. Plude,
¶ 23. Avery also contends that he is entitled to a new trial in the interest of justice because the effect of the photogrammetry evidence is that the real controversy was not fully tried. The court of appeals has the discretionary power to reverse a conviction in the interest of justice. Wis. Stat. § 752.35;
III. ANALYSIS
A. Newly Discovered Evidence
¶ 24. We conclude that there is not a reasonable probability that a jury, looking at both the evidence presented at trial and the new digital photogrammetry evidence, would have a reasonable doubt as to Avery's guilt.
¶ 25. To set aside a judgment of conviction based on newly discovered evidence, the evidence must be sufficient to establish that the defendant's conviction resulted in a "manifest injustice." Plude,
¶ 26. For example, in McCallum, the defendant was convicted of second-degree sexual assault. Id. at 468. The State's primary evidence of guilt was the victim's statement. Id. After the defendant entered an Alford plea, the victim recanted her accusation. Id. The circuit court denied the defendant's motion to withdraw his plea, finding that the victim's recantation was less credible than her accusation. Id. at 474. This court concluded that the circuit court erred in basing its decision solely on the victim's recantation being less credible than her accusation. Id. at 474-75. This court remanded the matter to the circuit court for a determination of whether there was a reasonable probability that a jury would have a reasonable doubt as to McCallum's guilt. Id. at 480.
¶ 27. Similarly, in Edmunds, the court of appeals concluded that the circuit court improperly weighed the credibility of the witnesses. State v. Edmunds,
¶ 28. A reasonable doubt as to a defendant's guilt has been found to exist when the reliability of a witness critical to the State's case is completely called into question by newly discovered evidence, such as that witness's false credentials. For example, in Plude, the main issue at trial was whether Plude drowned his wife Genell by forcing her head in the toilet.
¶ 29. The State argues that Avery is not entitled to a new trial based on newly discovered photograminetry evidence because the newly discovered evidence is not enough to overcome the strong evidence at trial.
¶ 30. Avery argues that he is entitled to a new trial based on the newly discovered evidence because if the jury believes that the robber is shorter than Avery, Avery would not be found guilty.
¶ 31. In this case, it is undisputed that the four prongs of the newly-discovered evidence test are satisfied. First, the photogrammetry evidence was "discovered after conviction" because in 1994, experts could not have enhanced the images and applied photogrammetry to estimate the robber's height. Both Grindstaff and Vorder Bruegge testified that in 1994, the software used to enhance the images was not available, and the process would have been prohibitively expensive. Second, Avery was not negligent in seeking the evidence because it was not available at the time of his trial. Third, the evidence is material to the issue of Avery's participation in the robberies. Fourth, the evidence is not merely cumulative. There was no evidence in the trial regarding the robber's height.
¶ 33. We disagree with the court of appeals' determination that "[b]y concluding that Grindstaffs opinions were 'not reliable enough' to entitle Avery to a new trial, the trial court gave one opinion from a credible witness greater weight than a competing opinion from a different credible witness." Avery,
¶ 34. The circuit court correctly balanced the photogrammetry evidence against the evidence presented at trial. The court considered the two witness identifications at trial of Avery as the robber. Hamdan testified that before he was shot, he looked at Avery two times from two to three feet away. Hamdan identified Avery as the man who kicked his cousin and then stood by the door. Hamdan's testimony was corroborated by events in the video. While Simmons recanted her identification, the circuit court considered testimony of police
¶ 35. Avery's defense included alibi witnesses and his own testimony recanting his confession. The circuit court noted that Avery's attorney "did an admirable job attacking the circumstances of the confession to the jury and they didn't buy it." Three witnesses testified to seeing Avery at North Division High School watching basketball shortly before the Malone's robbery. Two other witnesses testified that Avery was at home during the time frame of the Attari robbery. Avery also testified to his whereabouts during both robberies and to why he recanted his confession. The jury heard all of this evidence, and they still found him guilty.
¶ 36. The State's evidence in this case was far stronger than the State's evidence in McCallum, Edmunds, or Elude. In those cases, where the court afforded a new trial based on newly discovered evidence, the newly discovered evidence struck at the heart of the State's evidence at trial. Quite unlike those cases, the photogrammetry evidence here does not create a reasonable probability that a jury, looking at
B. Interest of Justice
¶ 37. We also conclude that Avery is not entitled to a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence.
¶ 38. The supreme court and the court of appeals may set aside a conviction through the use of our discretionary reversal powers, though the circuit court does not have such discretionary powers.
¶ 39. The real controversy here was fully tried. To prove Avery's guilt, the State presented evidence in the form of eyewitness identifications, officers' testimony, Avery's confession, Avery's written apology, and Avery's apology to his mother for getting involved.
¶ 40. Avery presented an alibi defense at trial. Three witnesses testified to seeing Avery at North Division High School watching basketball shortly before the Malone's robbery. Two other witnesses testified that Avery was at home during the time frame of the Attari robbery. Avery also testified to his whereabouts during both robberies and to why he recanted his confession. "The jurors had the opportunity to hear all of that evidence and made their own credibility deter
¶ 41. Avery's new photogrammetry evidence does not meet the standard set forth in Hicks or Armstrong. Clearly, it does not "discreditO one of the pivotal pieces of evidence forming the foundation of the State's case." Hicks,
¶ 42. The video was not used at trial for identification purposes. Though the jury saw the video of the Malone's robbery, the State asked the jury not to make identifications from the video because it was of such poor quality. We have no indication that the video played any part in the jury's verdict. The State did not "assertively and repetitively" use the video of the Malone's robbery to prove Avery's identification. Moreover, the photogrammetry evidence does not discredit two witness identifications of Avery as the robber, Avery's confession, his written apology, or his call apologizing to his mother for getting involved. At most, the photogrammetry evidence "chip[s] away" at the State's case. Hicks,
¶ 43. In Hicks, this court granted the defendant a new trial in the interest of justice when subsequent DNA tests refuted hair evidence the State presented repeatedly at trial as being "consistent" with the defendant's hair. Id. at 153. The hair evidence at trial
¶ 44. During the investigation, the police found several hairs in D.F.'s apartment. Id. One "Negro" head hair was found on D.F.'s comforter, and four "Negro" pubic hairs were found in the vacuum sweepings of D.F.'s apartment approximately 15 days after the assault. Id. During trial, an analyst testified that four of the hairs were "consistent" with Hicks' hair, and one hair was "similar" to Hicks' hair. Id. at 154, 166. Additionally, a "Caucasian" head hair was found inside the pants Hicks was wearing when he was arrested, and the analyst testified that this hair was "consistent" with D.E's hair. Id. at 154. The hairs were not tested for DNA. Id. at 155.
¶ 45. The State's theory at trial was that all of the hairs came from the same person, Hicks. Id. at 165-66. At trial, the State relied heavily on the hair evidence and argued that the hair was "strong" and "powerful" evidence of Hicks' guilt. Id. at 167. In its opening statement, the State told the jury that hairs found in D.F.'s apartment were "consistent with the hair of Anthony Hicks." Id. at 165. An analyst testified that the hairs found at the crime scene were consistent with Hicks' hair, and, over objection, an enlarged photograph of the hair evidence was shown to the jury. Id. at 166. The State argued that "I don't see, here, any prejudice,
¶ 46. Hicks' defense at trial was that he had never been in D.F.'s apartment. Id. at 163. He presented alibi testimony but none for the exact time of the offense. Id. at 155. The jury convicted Hicks. Id. at 152.
¶ 47. Postconviction, an analyst conducted DNA tests on the five hairs. Id. at 156. The DNA evidence excluded Hicks as the source of two of the hairs. Id. The other hairs did not yield sufficient DNA for analysis. Id. Hicks then brought a motion for a new trial in the interest of justice, arguing that the real controversy— whether he was the man that entered D.F.'s apartment and assaulted her — had not been fully tried. Id. at 157-58. The circuit court rejected his argument. Id. at 152. The court of appeals reversed, granting Hicks a new trial, and the State appealed to this court. Id. at 157.
¶ 48. This court agreed with the court of appeals and concluded that it was an exceptional case. Id. at 161. "[T]he jury did not hear important DNA evidence that bore on an important issue of the case," and "the testimony the jury heard with respect to the hair as affirmative proof of guilt was inconsistent with what the later DNA analysis revealed, thus clouding the crucial issue of identification." Id. The court noted:
By itself, the fact that Hicks obtained post-conviction DNA evidence might not persuade us to remand this matter for a new trial in the interest of justice. The determinative factor in the present case is*436 the fact that the State assertively and repetitively used hair evidence throughout the course of the trial as affirmative proof of Hicks' guilt. The State went to great lengths to establish that the hairs found at the scene came from the assailant. In opening and closing arguments, the State relied heavily upon its expert's opinion that the hairs found at the scene were consistent with known standards provided by Hicks. At various times, the State referred to a 'match' between the hairs, thus elevating and highlighting the importance of the hair evidence to the jury.
The combination of these two factors leads us to the conclusion that the real controversy was not fully tried.
Id. at 164. The DNA evidence did more than "chip away at the accumulation of evidence produced by the State to prove guilt. The DNA test result, in conjunction with D.F.'s testimony about the source of the Negro hairs in her apartment, discredits one of the pivotal pieces of evidence forming the foundation of the State's case." Id. at 171. Such is not the case with respect to Avery's photogrammetry evidence.
¶ 49. Similar to Hicks, in Armstrong, the State used physical evidence forcefully during the trial to prove that Armstrong was guilty of the sexual assault and murder of Charise Kamps.
¶ 50. The State's case against Armstrong consisted of five parts:
(1) that Armstrong could not have been at Kamps' apartment before her murder; (2) two witnesses made observations that placed Armstrong at Kamps' apart*437 ment around the time she was murdered; (3) physical evidence conclusively and irrefutably established Armstrong's guilt, including (a) a fingerprint identified as Armstrong's found on a water bong in Kamps' apartment; (b) semen stains on the victim's bathrobe that came from a similar secretor type as Armstrong; (c) four head hairs found in the apartment characterized by the State's expert as "consistent" and "similar" to Armstrong's; (d) traces of blood underneath Armstrong's fingernails and toenails detected the evening following the murder; (4) Armstrong had a romantic interest in Kamps that she did not return; and (5) Armstrong paid Kamps $400 in repayment of a debt and following her murder, the $400 could not be found in her apartment, while Armstrong made a $315 cash deposit the next day.
Id., ¶ 8.
¶ 51. Critical to the State's case and the conviction was certain physical evidence. Armstrong's fingerprint was found on a bong in Kamps' apartment. Id., ¶ 64. A robe next to Kamps' body tested positive for semen, and the semen was consistent with a type-A secretor. Id., ¶ 65. An analyst testified that Armstrong, as well as 80 percent of the population, are type-A secretors. Id. The State also presented evidence that Armstrong had blood underneath his fingernails and toenails within a day after the murder. Id., ¶¶ 68-69. Finally, the State presented hair evidence. Police recovered a total of five hairs, all head hairs, that were "consistent" with Armstrong's hair. Id., ¶¶ 80-83. The hairs were recovered from the bathrobe belt draped over Kamps' body, the bathroom, the bodily fluid around Kamps' body, and the fan. Id.
¶ 52. Similar to Hicks, the State used the physical evidence "assertively and repetitively as affirmative proof of Armstrong's guilt." Id., ¶ 139. During closing
¶ 53. In Armstrong, the State "flaunted powerful conclusions before the jury that the physical evidence conclusively and irrevocably established Armstrong as the murderer." Id., ¶ 154. The new evidence did more than " ’chip away
¶ 54. In the case at issue, Avery argues that the real controversy of his involvement in the robberies was not fully tried because the jury was precluded from hearing the photogrammetry evidence during the trial. Avery argues that we should affirm the court of appeals and grant him a new trial in the interest of justice.
¶ 55. The State argues that this case, unlike Hicks and Armstrong, is not a truly exceptional one. We agree. The court of appeals erroneously exercised its discretion by granting a new trial in the interest of
¶ 56. In both Hicks and Armstrong, the real controversy was not fully tried. In Hicks, the new DNA tests alone were not enough to grant a new trial, but it was the combination of the new evidence with the State's reliance on that specific evidence at trial that made the case so exceptional to warrant a new trial in the interest of justice.
It strains the meaning of 'fully tried' to suggest that [a] case was not fully tried because the scientific bases for physical evidence set forth in the trial were only state-of-the-art at the time of the trial, but not state-of-the-art at present. Using the majority's standard, the real controversy can never be fully tried because scientific advances in evidence gathering and analysis will continue to improve.
Armstrong,
The judicial system has limited resources, and judicial policy favors finality of convictions. See Love,
¶ 58. Aveiy's photogrammetry evidence does not discredit a pivotal piece of evidence that the State used "assertively and repetitively" at trial to prove Avery's guilt. Hicks,
IV CONCLUSION
¶ 59. We conclude that there is not a reasonable probability that a jury, looking at both the evidence presented at trial and the new digital photogrammetry
By the Court. — The decision of the court of appeals is reversed.
Notes
State v. Avery,
Photogrammetry is the "process of making precise measurements by means of photography." The American Heritage Dictionary of the English Language 1364 (3d ed. 1992).
Wisconsin Stat. § 943.32, "Robbery," states in part:
(1) Whoever, with intent to steal, takes property from the person or presence of the owner by [] the following means is guilty of a Class C felony:
(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.
(2) Whoever violates sub. (1) by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon is guilty of a Class B felony.
Wisconsin Stat. § 939.05, "Parties to crime" states in part:
(1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
In Avery's confession, he identified one of the robbers as "Dope Fiend." Blumenberg showed Avery a picture of DeShawn
A map in the State's brief shows that North Division High School, located at 1011 W Center Street in Milwaukee, Wisconsin, is approximately 13 blocks away from the Malone's Fine Foods, located at 3610 N. Teutonia Avenue. Detective Spano testified that in a car, it took him two minutes and 40 seconds to drive from North Division High School to Malone's. The exact time of the Malone's robbery is not clear. There is no time stamp on the video. One officer testified that, based on his investigation, he believed the Malone's robbery occurred at approximately 8:30 p.m. The complaint also states that the robbery occurred at approximately 8:30 p.m., which was based on the statement of a witness, Ahmed Hasan. The State argues that Avery's testimony that he was at North Division High School shortly before the Malone's robbery is actually inculpatory, not exculpatory.
On appeal, Avery does not argue that his confession was involuntary. There is no dispute that Avery waived his Miranda rights before both interrogations began.
State v. Machner,
State v. Avery, No. 97-0317-CR, unpublished slip op. (Wis. Ct. App. Dec. 1, 1998).
VISAR, or video image stability and registration, is used to improve the quality of images and videos by removing background noises, making the images clearer, and correcting horizontal and vertical camera motion.
Grindstaff was qualified as an expert by the circuit court. He has a bachelor's and master's degree in electrical engineering, he graduated from the United States Air Force Metrology School, he is a certified metrologist (the science of measurement), and he teaches courses at the FBI and CIA on how to make measurements using his company's software.
Vorder Bruegge was qualified as an expert by the circuit court. He works in the digital-evidence section of the FBI, has a Ph.D. in geological sciences, and has extensive training in photogrammetry.
The circuit court also heard testimony from several other witnesses that Avery could not be the robber in the video for a variety of reasons. We agree with the circuit court that since this testimony was available at the time of the trial, it did not qualify as newly discovered evidence. See State v. Love,
To prevail on a claim for newly discovered evidence, a defendant must first prove, by clear and convincing evidence, that "(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative." Love,
All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.
The State argues that "reasonable probability" means it is more likely than not a jury would have a reasonable doubt as to a defendant's guilt. In support of its argument, the State cites State v. [Steven A.] Avery,
Avery argues that the standard is whether the new evidence undermines the confidence in the outcome. See Kyles v. Whitley,
We need not decide this issue because even under the definition of "reasonable probability" favorable to Avery — that the new evidence undermines the confidence in the outcome — we conclude that Avery is not entitled to a new trial based on the newly discovered evidence.
The State argues that the court of appeals may not reverse a criminal conviction in the interest of justice on a motion made under Wis. Stat. § 974.06. The State relies upon State v. Allen,
This court may grant a new trial in the interest of justice (1) whenever "the real controversy has not been fully tried," or (2) whenever "it is probable that justice has for any reason miscarried." Wis. Stat. § 751.06. Cases where the real controversy has not been fully tried have generally been limited to two situations: (1) when the jury was erroneously denied the opportunity to hear important evidence bearing on an important issue in the case or (2) when the jury had before it evidence not properly admitted that "so clouded" a crucial issue that it may be fairly said that the real controversy was not tried. Hicks,
While the court of appeals need not necessarily use the word "exceptional" in its analysis, it does have an obligation to analyze why a case is so exceptional to warrant a new trial in the interest of justice. In other words, the court of appeals erroneously exercised its discretion by granting a new trial in the interest of justice without properly analyzing why this was such an exceptional case. The court of appeals' analysis seems to simply restate the interest of justice test: "The jury was precluded from hearing photogrammetry evidence because, at the time of trial, the specific technique to sufficiently enhance the video surveillance evidence did not exist. We conclude, as a result, that the real controversy of whether Avery was actually involved in the robberies was not fully tried." Avery,
Wisconsin Stat. § 751.06 reads as follows:
Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
Concurrence Opinion
¶ 60. (concurring). This case presents an important issue of statutory construction affecting postconviction review. If the court approves the application of Wis. Stat. §§ 751.06 or 752.35 to postconviction motions under Wis. Stat. § 974.06, it will seriously jeopardize the high standards and finality in § 974.06. I write separately to express this concern.
I
¶ 61. Two statutes, Wis. Stat. § 751.06
¶ 62. There is no dispute that the two statutes apply in a direct appeal from a judgment of conviction and/or a direct appeal from the denial of a postconviction motion under Wis. Stat. § 974.02. The question in dispute is whether the two statutes apply in a collateral attack — that is, in an appeal from a postconviction motion under Wis. Stat. § 974.06. A "yes" answer will undermine this court's decisions in State v. Escalona-Naranjo,
II
¶ 63. The language found in Wis. Stat. § 751.06 first appeared in the Wisconsin Statutes in 1913. See ch. 214, Laws of 1913.
751.06. Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
§ 76, ch. 187, Laws of 1977.
¶ 64. Wisconsin Stat. § 752.35 was created by § 112, ch. 187, Laws of 1977, to accommodate the newly created court of appeals.
¶ 66. First, both statutes are unquestionably intended to apply to civil cases as well as criminal cases. See Hamilton v. State,
¶ 67. For example, if the two statutes may be used for collateral attacks in criminal cases, they should be available for collateral attacks in civil cases as well.
¶ 68. Graff v. Roop,
The appellant has misconceived the basis on which this court will exercise its discretionary reversal power under sec. 251.09, Stats. This section was not intended*445 to bring before the court issues which should have been raised by appeal from the judgment involving such issues. The section presupposes a timely appeal from a judgment involving the issues and should not be the basis of abrogating or rendering inoperative the time within which an appeal must be taken under sec. 274.01. In the exercise of its discretionary power to reverse, the court can disregard the failure to make proper motions, objections, or exceptions before the trial court, but in such instances there is a judgment properly on review before the court.
Id. at 606 (emphasis added) (citation omitted).
¶ 69. In my view, both statutes presuppose a timely appeal, so that discretionary reversal is part of a direct appeal. If this were not true, the court would have to manufacture time limitations for use of the two statutes unless it were to determine that the statutes have no time limitations.
¶ 70. Second, if the statutes are not tied to a direct appeal, the court of appeals will likely be asked, sooner or later, to vacate or overrule a published decision it made on direct appeal when the new appeal is part of a collateral attack on the challenged judgment. The court of appeals might even be asked to overrule a decision of the supreme court.
¶ 71. In Cook v. Cook,
¶ 72. Cook problems are avoided by confining application of the two statutes to direct appeals.
Our power of discretionary reversal under sec. 752.35, Stats., may be exercised only in direct appeals from judgments or orders.... When an appeal is taken from an unsuccessful collateral attack under sec. 974.06, Stats., against a judgment or order, that judgment or order is not before us. All that is before us is an order which refuses to vacate and set the judgment of conviction aside or to grant a new trial or to correct a sentence. Section 752.35 does not permit us to go behind a sec. 974.06 order to reach the judgment of conviction.
¶ 74. Fourth, both statutes explain that the respective appellate courts have discretionary reversal authority "regardless of whether the proper motion or objection appears in the record." Wis. Stat. §§ 751.06, 752.35. This language specifically overrides statutory and common law rules on waiver or forfeiture of objections. See State v. Schumacher,
¶ 75. Fifth, there are two distinct avenues for relief in the discretionary reversal statutes: (1) the real controversy has not been fully tried, and (2) it is probable that justice has for any reason miscarried. The second avenue — and only the second avenue — requires the appellate court to determine "that there would be a substantial probability that a different result would be likely on retrial." Id. (citing State v. Wyss,
Ill
¶ 76. Having examined why Wis. Stat. §§ 751.06 and 752.35 are not consistent with collateral attack, I turn to Wis. Stat. § 974.06 to show why it does not mesh with the two "discretionary reversal" statutes.
¶ 77. Wisconsin Stat. § 974.06 was created by the legislature in 1969.
¶ 78. "With the exception of subsection (4), [Wis. Stat. §] 974.06 is a direct adaptation of 28 U.S.C. sec. 2255." Escalona-Naranjo,
¶ 79. The policy behind the subsection is thoroughly discussed in Escalona-Naranjo and Lo; namely, "a goal of finality in the criminal appeals process. This finality is inherently related to the purpose of vindicating justice via a simplified and adequate postconviction remedy." Lo,
¶ 80. Several points must be made about Wis. Stat. § 974.06 in the context of this case.
¶ 81. First, the statute was adopted in 1969, more than half a century after the supreme court discretionary reversal statute became law in 1913. If there is a
¶ 82. Second, the scope of a Wis. Stat. § 974.06 motion is limited by § 974.06(1), as interpreted by Wisconsin court decisions. "A sec. 974.06 motion is limited in scope to matters of jurisdiction or constitutional dimensions." Lo,
¶ 83. Wisconsin Stat. §§ 751.06 and 752.35 do not mesh with Wis. Stat. § 974.06 because these discretionary reversal statutes are not limited "to matters of jurisdiction or constitutional dimensions." After all, they apply in civil cases. See ¶ 7, supra.
¶ 84. Third, Wis. Stat. § 751.06 might have meshed with Wis. Stat. § 974.06 if the Wisconsin legislature had adopted section 1 of the 1966 Uniform Post-Conviction Procedure Act, which read in part:
§ 1. [Remedy — To Whom Available — Conditions].
(a) Any person who has been convicted of, or sentenced for, a crime and who claims:
(4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest ofjustice[.]
Unif. Post-Conviction Procedure Act § 1, 11 U.L.A. 666 (Master ed. 2003) (emphasis added).
¶ 85. But, as we noted in Lo, Wisconsin chose not to adopt section 1 of the UPCPA. Instead, it adopted language taken directly from 28 U.S.C. § 2255. Lo,
Allowing motions in the interest of justice under § 805.15(1) at any time renders limitations under § 974.02 and § 974.06 irrelevant. These statutes would make no sense if motions under § 805.15(1) could be brought at any time. No criminal defendant would limit themselves to bringing a motion under § 974.06 .. . if the broader grounds in § 805.15 were always available. ...
Id., ¶ 55 (emphasis added). "[T]here is no authority for the circuit court to grant a new trial in the interest of justice under § 974.06." Id., ¶ 98 (Prosser, J., concurring).
¶ 87. Thus, it is not logical to believe that the discretionary reversal statutes give appellate courts power to reverse circuit courts in appeals from Wis. Stat. § 974.06 proceedings.
IV
¶ 88. In this case, the defendant was convicted of two counts of armed robbery at a jury trial in April 1995. He was unsuccessful on appeal. In October 2007 he moved for postconviction relief under Wis. Stat. § 974.06, asking for a new trial based on (1) newly discovered evidence, and (2) the interest of justice.
¶ 89. I have no objection to a motion for a new trial under Wis. Stat. § 974.06, based on newly discovered evidence, if the newly discovered evidence satisfies
¶ 90. The majority explains the passage in a footnote, which reads:
The State argues that the court of appeals may not reverse a criminal conviction in the interest of justice on a motion made under Wis. Stat. § 974.06. The State relies upon State v. Allen,159 Wis. 2d 53 ,464 N.W.2d 426 (Ct. App. 1990). However, State v. Armstrong is instructive on this issue: "we need not decide whether our statutory power is constrained according to Allen because this court has 'both inherent power and express statutory authority to reverse a judgment of conviction and remit a case for a new trial in the interest of justice.'"2005 WI 119 , ¶ 113,283 Wis. 2d 639 ,700 N.W.2d 98 (quoting State v. Hicks,202 Wis. 2d 150 , 159,549 N.W.2d 435 (1996)). "This court has recently reaffirmed that our inherent power to reverse in the interest of justice is not limited to a direct appeal." State v. Maloney,2006 WI 15 , ¶ 14,288 Wis. 2d 551 ,709 N.W.2d 436 . The discretionary reversal power of this court and the court of appeals is coterminous. Armstrong,283 Wis. 2d 639 , ¶ 113; Vollmer v. Luety,156 Wis. 2d 1 , 17-18,456 N.W.2d 797 (1990) ("[W]e conclude that, because secs. 751.06 and 752.35, Stats., are identical, the legislature did not intend for the court of appeals' power to reverse under sec. 752.35 to be less than that of the supreme court under sec. 751.06.").
Majority op., ¶ 38 n.17.
¶ 92. Of course, the supreme court has statutory authority to grant a new trial in the interest of justice where the circuit court has denied a new trial under Wis. Stat. § 974.02. But the only case cited by Armstrong that arguably supports discretionary reversal in a collateral attack under Wis. Stat. § 974.06 is State v. McConnohie,
¶ 93. The other cases cited by Armstrong are inapplicable. Hicks and State v. Penigar,
¶ 94. In truth, then, the Armstrong court relied exclusively on "inherent authority." Armstrong,
¶ 95. In sum, the only basis for the supreme court to exercise discretionary reversal in a case involving Wis. Stat. § 974.06 is the court's inherent power. The majority now bestows the same power on the court of appeals.
¶ 97. For the foregoing reasons, I respectfully concur.
Wisconsin Stat. § 752.35 reads as follows:
*442 Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
Section 1. There is added to the statutes a new section to read:
*443 Section 2405m. In any action or proceeding brought to the supreme court by appeal or writ of error, if it shall appear to that court from the record, that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the supreme court may in its discretion reverse the judgment or order appealed from, regardless of the question whether proper motions, objections, or exceptions appear in the record or not, and may also, in case of reversal, direct the entry of the proper judgment or remit the case to the trial court for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with the statutes governing legal procedure, as shall he deemed necessary to accomplish the ends of justice.
§ 1, ch. 214, Laws of 1913.
Wisconsin Stat. § 974.06(7) provides that, "An appeal may he taken from the order entered on the motion as from a final judgment." (Emphasis added.) This does not mean, however, that the "order" under § 974.06 is the same as a "judgment" under the two discretionary reversal statutes.
The legislature created Wis. Stat. § 974.06 in § 63, ch. 255, Laws of 1969, effective July 1, 1970.
Dissenting Opinion
¶ 98. {dissenting). The majority reverses the court of appeals not because of any legal or factual error. Rather, the majority in essence disregards the standard of review and reverses the court of appeals simply because it does not agree with the outcome.
¶ 99. The standard of review in this case requires us to determine whether the court of appeals erroneously exercised its discretion because it committed a legal or factual error. In order to appear as if it reviews this matter for an erroneous exercise of discretion, the majority takes the court of appeals to task for failing to analyze whether this case is "truly exceptional." Majority op., ¶ 55.
¶ 100. The problem with the majority's analysis is that what constitutes an "exceptional" case is in the eye of the beholder. What the majority is really doing is substituting its own evaluation of whether this is such an exceptional case in place of the court of appeals' reasoned determination that this case warrants a new trial in the interest of justice.
¶ 101. By conducting what is really an independent review, the majority subverts the court of appeals' discretion to order a new trial in the interest of justice. Vollmer v. Luety,
I
¶ 102. The majority correctly sets forth the two-part test for determining whether a new trial should be granted in the interest of justice when the controversy has not been fully tried. Majority op., ¶ 38 n.18. This court has concluded that the real controversy was not fully tried in two situations. State v. Hicks,
¶ 103. The majority also correctly states the standard of review for an order of the court of appeals granting a new trial in the interest of justice: we review to determine whether the court of appeals erroneously exercised its discretion. See Majority op., ¶ 38. Nevertheless, in the very next paragraph, the majority concludes that "[t]he real controversy here was fully tried," in essence deciding the issue on its merits de novo. Id., ¶ 39.
¶ 104. Although the majority pays lip service to the correct standard of review, its approach to this case is evident from its declaration that Avery asks this court to "grant him a new trial in the interest of justice." Id., ¶ 54. Here, however, there is a fly in the majority's ointment — a new trial has already been granted. The court of appeals analyzed this very issue and concluded
¶ 105. The majority mines through the facts of Hicks and Armstrong
¶ 106. The majority then proceeds to independently evaluate the merits of the photogrammetry evidence and its effects on the trial. Id., ¶ 56. Although it acknowledges that the jury saw the video in this case but did not hear the photogrammetry evidence, it dismissively concludes that the photogrammetry evidence does not "discredit[] a pivotal piece of evidence" at trial. Id. Because the State "did not meaningfully rely on the video at trial," the majority dismisses the photogrammetry evidence's effect on the proceeding entirely. Id. Finally, although it cloaks its conclusion with the term "erroneous exercise of discretion," it determines that this is not an exceptional case and that Avery is not entitled to a new trial in the interest of justice. Id., ¶ 59.
II
¶ 107. The problem with the majority's analysis is that one person's "exceptional" is another person's "routine." The "exceptional" is to be found in the eyes of the beholder. The exact outline of what constitutes an exceptional case is merely a matter of opinion based on one's view of the facts. That is precisely the reason this
¶ 108. In Vollmer, this court recognized that the discretionary power of reversal is "compatible with doing justice in an individual case, which is primarily the duty of the court of appeals." Id. That power is consistent with the court of appeals' error-correcting function, which this court has recognized means that the court of appeals is the court of last resort in many cases. State v. Schumacher,
¶ 109. Therefore, the proper role of this court on review is solely to determine whether the court of appeals committed an error of fact or law that requires reversal. See Stivarius v. DiVall,
¶ 110. Ultimately, the majority today has sent a message to the court of appeals that regardless of the statutory authority given to the court of appeals to grant a new trial in the interest of justice pursuant to Wis. Stat. § 752.35, it should not be entrusted to exercise that discretion. Instead, this court will not be bound by the standard of review and will second-guess the court of appeals' discretionary determination even though there is no mistake of law or fact in its decision.
¶ 111. A straightforward application of the correct standard of review reveals no error of fact or law that requires reversal. As I note above, the court of appeals' grant of a new trial in the interest of justice is properly reviewed solely for an erroneous exercise of discretion. No one argues that the court of appeals committed an error of fact, so the sole question on review should be whether the court of appeals' exercise of discretion was based on an error of law.
¶ 112. This court has concluded that the real controversy was not fully tried in two situations. Hicks,
¶ 113. Here, the first situation is arguably satisfied. The photogrammetry evidence was not heard by the jury but bears on a critical issue in the case. Identification is nearly always an important issue in a criminal case, but in this case it was Avery's principal defense. He testified that he was not a participant to the robberies and that his confession was coerced. Avery produced several alibi witnesses who corroborated his version of the events.
¶ 114. In contrast, the State's case was heavily dependent on two eyewitnesses to the robberies. This court has been critical of the reliability of eyewitness identification testimony, observing that studies confirm that eyewitness testimony is often "hopelessly unreli
The research strongly supports the conclusion that eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined. In a study conducted by the United States Department of Justice of 28 wrongful convictions, it determined that 24 (85 percent) of the erroneous convictions were based primarily on the misidentification of the defendant by a witness.
Id. (Citations omitted.)
¶ 115. Studies also reveal an alarming number of false confessions. Since 1992 the Innocence Project has used DNA evidence to help exonerate 301 people who
¶ 116. It is not an error of law to conclude if the jury believed the photogrammetry evidence, Avery could not have been present for the Malone's Fine Foods robbery. His alibis for both robberies are likely to be viewed much more favorably by a jury if he could show, as the photogrammetry evidence arguably does, that he was not involved in at least one of the two robberies.
State v. Armstrong,
Wisconsin Stat. § 752.35 states the following:
Discretionary Reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
The court of appeals has granted only a handful of new trials in the interest of justice in recent years. See, e.g., State v. Tanon, No. 2009AP491, unpublished slip op. (Ct. App. Mar. 18, 2010); State v. Vandenberg, No. 2009AP1242, unpublished slip op. (Ct. App. Aug. 24,2010); State v. Louis, No. 2009AP2502-CR, unpublished slip op. (Ct. App. Mar. 15, 2011); State v. Davis,
Not one example cited above mentions the word "exceptional," much less analyzes what exceptional circumstances led the court of appeals to grant a new trial. It appears that under the majority's analysis, nearly every instance where the court of appeals has ordered a new trial in the interest of justice in recent years was an erroneous exercise of discretion. See also State v. Plude,
In light of the voluminous body of scientific knowledge that questions the reliability of eyewitness identifications, the Oregon Supreme Court recently established new procedures for the admissibility of eyewitness identifications. These procedures include shifting the burden of proof to the State to show that eyewitness identifications are sufficiently reliable to be admissible as evidence. State v. Lawson,
Innocence Project, http://www.innocenceproject.org/index.php (last visited Nov. 20, 2012).
Innocence Project, False Confessions, http://www.innocenceproject.org/understand/False-Confessions.php (last visited Nov. 20, 2012).
Several academic studies find that false confessions are surprisingly easy to induce from innocent confessors. See, e.g., Jennifer T. Perillo & Saul M. Kassin, Inside Interrogation: The Lie, The Bluff, and False Confessions, 35 Law & Hum. Behav. 327 (2011); False Confessions: Silence is Golden, The Economist, Aug. 12, 2011.
The court had the benefit of a non-party brief filed by distinguished academics and forensic scientists. The brief criticizes the methodology used by the prosecutor's expert for the "radically non-blind" nature of his evaluation. It concludes that "[a]ny rational factfinder should give it little weight, and it certainly should not be treated as dispositive in this case."
The majority opinion repeatedly refers to and applies the "reasonable probability test." Its holding in footnote 16 leaves for another day the standard for the reasonable probability test.