Twenty years ago Simmons was convicted of three counts of recklessly endangering safety for shooting into a car carrying three people, one of whom Simmons had been fighting with in a bar shortly before the shooting. The court of appeals affirms the circuit court’s denial of Simmons’s request under § 974.07 for DNA testing of physical evidence found in the car he was supposedly in at the time of the shooting.
A number of eyewitnesses identified Simmons as the shooter, though one later recanted and claimed she was the shooter, and a defense witness said it couldn’t have been Simmons. (¶¶2-12). The items Simmons wanted tested from the car he was said to be in included bullet casings, a baseball cap, a head wrap, shoes, and bottles of alcohol, the theory being they would show another person’s DNA, fingering him or her as the shooter. (¶18).
To get postconviction DNA testing of evidence, the defendant has to show, among other things, that there is a reasonable probability that exculpatory DNA testing results would undermine confidence in the outcome. § 974.07(7)(a)2.; State v. Hudson, 2004 WI App 90, ¶¶13-16, 273 Wis. 2d 707, 681 N.W.2d 316. The decision whether to grant DNA testing is discretionary (¶28), and the circuit court properly exercised its discretion when it found the presence of others’ DNA on the items wouldn’t necessarily exonerate Simmons. (¶19).
¶30 …[T]he circuit court stated that [it] was “not persuaded that there is a reasonable probability that DNA testing of the bullet casings would have had any material impact on the prosecution of this case or the outcome of the trial”—the second condition of Wis. Stat. § 974.07(7)(a). In particular, the court noted the eyewitness testimony of J.S.G., P.S.G., A.C., and Ramsey, who all identified Simmons as the shooter. The circuit court stated that even without any DNA evidence linking Simmons to the shooting, the jury was “obviously satisfied about [Simmons’] guilt beyond a reasonable doubt,” based on that testimony as well as other evidence presented by the State.
As it happens, all the items except the bullet casings had been destroyed, and so couldn’t have been tested even if the circuit court ordered it. This prompted Simmons to argue his due process rights had been violated because the state destroyed potentially exculpatory evidence. Under the flagrantly ridiculous standard established in Youngblood v. Arizona, 488 U.S. 51 (1988) (and adopted in Wisconsin in State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994), and still, in this day and age, inexplicably adhered to), the destroyed items were only potentially (rather than apparently) exculpatory, so Simmons has to allege the state acted with bad faith in failing to preserve them. He doesn’t make such an allegation or provide a factual basis to support such a allegation, so the circuit court properly rejected his due process argument, too. (¶¶34-40).