If you are thinking about filing a motion under § 974.07 or are in the middle of litigating such a motion, you’ll want to read this decision. The court of appeals holds Denny is entitled to DNA testing of certain evidence because he showed that the items he sought to test are “relevant to the investigation or prosecution that resulted in [his] conviction….” The court also holds he is entitled to testing at public expense because it is reasonably probable he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction.
Denny was convicted of being party to the homicide of Christopher Mohr in 1982. There was an abundance of physical evidence collected at the crime scene, including clothing and other objects with blood on them, though none of the evidence was matched to Denny; however, Denny and his co-defendant made inculpatory statements to various people, and they testified to the statements at Denny’s trial. (¶¶2-25).
In 2014 Denny filed a motion under § 974.07 for testing of some of the evidence collected at the scene. The circuit court denied the motion, but the court of appeals reverses in an opinion adopting each of Denny’s arguments for why he is entitled to testing at public expense.
First, the circuit court erred in applying § 974.07(2)(a), which requires that the evidence to be tested be “relevant to the investigation or prosecution that resulted in [his] conviction.” The circuit court read this language to cover only inculpatory evidence presented at trial, and concluded that Denny wasn’t entitled to testing because the evidence he wanted tested wasn’t used against him at trial and therefore didn’t result in his conviction. This is incorrect:
¶37 …. [T]he plain language of Wis. Stat. § 974.07(2)(a) is not limited to either inculpatory evidence or to evidence presented at trial. It includes “relevant” evidence, meaning “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Wis. Stat. § 904.01. Such “relevant” evidence may be generated during the investigation “that resulted in the conviction,” whether or not that evidence was ever presented at trial. Sec. 974.07(2)(a). ….
Applying the correct interpretation of § 974.07(2)(a) to the facts shows that the evidence Denny wants tested meets the requirements. “Each of the items Denny seeks to test were recovered during the processing of the crime scene and were either presented as exhibits and/or testified to at trial…. Given the nature of the crime scene, and the manner in which Mohr was murdered, the perpetrator(s) might have left DNA evidence, whether in the form of blood, hair, saliva, skin, sweat or other biological material, on the items Denny identified for testing.” (¶39).
The circuit court was also wrong to say that because Denny was convicted as a party to the crime, DNA testing would not change the evidence that Denny participated in the murder as a party to a crime even if it established that another person was involved:
¶41 …. The trial court construed Denny’s motion as made for the purpose of “show[ing] that someone other than Denny inflicted the wounds,” which would have been futile since he was charged as a party to the crime. The trial court considered that “[a] jury could have found Denny guilty as a party to the crime if he acted in concert with the others who inflicted the wounds, while Denny stood lookout in the hallway, leaving none of his DNA at the scene.” But, this was not the State’s theory at trial. Denny was not a mere “lookout,” but described by multiple witnesses, as recounted in the State’s closing argument, as having stabbed Mohr, possibly “five, ten, fifteen times.” If, as Denny argues, testing of the items should show that another person’s DNA is on several of the items, and that the DNA of Denny is not on any of the items identified, such would call into doubt Denny’s participation in the murder of Mohr.
The court of appeals also rejects the state’s claim that to meet § 974.07(2)(a)’s relevancy test Denny must show it is reasonably likely DNA will be found on the evidence to be tested. (¶36). That requirement is not in the statute, and the court declines to graft it onto the statute. (¶42). Furthermore, the statute puts the burden on the state to identify and produce evidence containing biological material when the movant establishes relevance, and “[p]utting the onus on a defendant to prove that an item contains biological material would pose serious impediments, and perhaps insurmountable barriers, to him or her ever obtaining testing since these items are in the possession of the State.” (¶44). Also, the state prematurely argues that the DNA may have degraded or been cross-contaminated or may have been deposited at some time other than the murder. At this point, Denny seeks only to test these items, and “‘[r]elevant results’ need not be established before a defendant is able to test relevant ‘evidence.’” (¶46).
The circuit court was also wrong to conclude Denny didn’t meet the “heightened requirements,” State v. Moran, 2005 WI 115, ¶57, 284 Wis. 2d 24, 700 N.W.2d 884, to qualify for publicly funded testing. The circuit court held Denny didn’t show that “[i]t is reasonably probable that [he] would not have been … convicted … for the offense … if exculpatory [DNA] testing results had been available before the … conviction.” § 974.07(7)(a)2. The court of appeals first settles the question of what “reasonably probable” means:
¶48 …. The parties dispute the meaning of “reasonably probable,” with Denny asserting that we should apply the standard in Strickland v. Washington, 466 U.S. 668, 694 (1984)—“a probability sufficient to undermine confidence in the outcome” or the undermine-confidence test—whereas the State asserts that we should apply the standard on a motion for a new trial based on newly discovered evidence—“a reasonable probability that a jury, looking at both the [old evidence] and the [new evidence], would have a reasonable doubt as to the defendant’s guilt” or the outcome-determinative test. State v. Love, 2005 WI 116, ¶44, 284 Wis. 2d 111, 700 N.W.2d 62 ….
¶49 …[W]e are persuaded that Denny’s interpretation is the correct one. The standard the State invokes concerns a motion for a new trial based on newly discovered evidence. While the evidence here would be new in a sense, in what it reveals, Denny is not, at this point, seeking a new trial. Rather, he is seeking the disclosure of certain items in the State’s possession containing “biological material” for the purpose of testing them for DNA, using Wis. Stat. § 974.07, which is a “post-conviction discovery statute,” to do so. Moran, 284 Wis. 2d 24, ¶¶35, 47 (“Allowing [a defendant] to test the evidence … does not guarantee that he [or she] will get a new trial, or even an evidentiary hearing.”). Wisconsin’s statute does not explicitly employ a new trial analysis until after the DNA testing has been done. Sec. 974.07(10)(a) and (b).
Next, the court of appeals holds that the plain language of § 974.07(7)(a)2. requires a court to assume that the results of DNA testing will be exculpatory. The court rejects the state’s claim that a DNA result can only be exculpatory if it is “reasonably probable that the movant would not have been prosecuted or convicted” because that interpretation would alter the commonly understood meaning of “exculpatory” (that is, evidence tending to establish innocence) and render the reasonable probability of a different outcome requirement superfluous. (¶¶53-54). Moreover, given the important statutory goals of exonerating the wrongly convicted and identifying and apprehending perpetrators who may be at large, the court holds that it must assume the most favorable possible test results in light of the evidence at trial. “Thus, here, Denny is entitled to assumed exculpatory test results showing that another identified individual’s DNA is found on all of the collected evidence, and none of Denny’s is found.” (¶57).
The final step is to weigh the assumed exculpatory evidence against the inculpatory evidence presented at trial to determine if it is reasonably probable that Denny would not have been convicted. Here there was no physical evidence linking Denny to the crime and there were no eyewitnesses to the crime. While the multiple inculpatory statements Denny made to several witnesses was powerful evidence, defense counsel was able to question the credibility of several of those witnesses. Thus, assuming that the profile on all the items does not match Denny, but does match that of a convicted offender, the test results could cast the case in a completely different light. (¶¶60-61, 63).
¶62 When we take all of this into account—the lack of physical evidence connecting Denny to the scene, the inculpatory statements he made, the manner in which the credibility of certain witnesses was called into question, and an identified third party in the DNA test results and none of Denny’s—we conclude that it is reasonably probable that Denny would not have been convicted, that is, a probability sufficient to undermine confidence in the outcome. ….
Judge Hagedorn concurs with the majority’s analysis of the relevance requirements of § 974.07(2)(a), but dissents from the majority’s conclusion that Denny has met the requirements under § 974.07(7)(a)2. for publicly funded testing. (¶¶65-66). He concludes it’s tough to choose between the undermine-confidence and outcome-determinative approaches to defining “reasonably probable” and that the supreme court may want to take a look at that question (¶¶67-80); in any event, he concludes, under either approach the circuit court properly concluded Denny wasn’t entitled to public funds for testing (¶¶81-89).