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Postconviction DNA Testing, § 974.07; Sentencing – Harsh and Excessive Review

State v. Dwain M. Staten, 2011AP916-CR, District 1, 5/8/12

court of appeals decision (not recommended for publication); for Staten: Michael J. Steinle; case activity

Postconviction DNA Testing, § 974.07 

Postconviction testing at state expense requires, among other things, that the defendant show a reasonable probability he wouldn’t have been prosecuted or convicted with exculpatory test results. Staten, whose defense to sexual assault was consent rather than misidentification, argues that he would be exonerated if testing showed semen from another man; the court rejects the claim:

¶13      As noted, the vaginal and cervical swabs showed the presence of one man’s semen.  The DNA from that semen matched Staten’s DNA.  Staten, in fact, admitted that he had sex with S.P. on the day of the crime.  Contrary to the theme underlying Staten’s argument, the issue here is not mistaken identity but, rather, consent.  Staten admits that he had consensual sex with S.P., and S.P. testified that she did not consent. Whether S.P. had sex with Ace or someone else is not material to whether she consented to have sex with Staten.  See Wis. Stat. § 972.11(2)(b) (“If the defendant is accused of a crime under s. 940.225 … any evidence concerning the complaining witness’s prior sexual conduct … shall not be admitted into evidence during the course of the … trial, nor shall any reference to such conduct be made in the presence of the jury,” with exceptions not material here.).

S.P. alleged that she was sexually assaulted by a lone individual during a break-in; Staten claimed that he had consensual sex with S.P. immediately after another man (“Ace”). By invoking the rape-shield law, § 972.11(2)(b), and deeming Staten’s claim “not material” in any event, the court seems to be saying that evidence of Ace’s consensual sex with S.P. at the same time as Staten wasn’t admissible, ¶8. (Well, perhaps not literally at the same time, but more accurately, part of the same alleged event.) True, the rape-shield law is constitutional on its face, State v. Pullizzano, 155 Wis.2d 633, 456 N.W.2d 325 (1990), but Staten might have an argument in the first instance, that this isn’t really prior, but more or less same-time, sexual conduct. Of course, the easy rejoinder is that Staten’s account made S.P.’s alleged conduct with Ace to be “prior” – whether prior by minutes or weeks, the whole point of the rape-shield law is to preclude a defense that just because a victim consented to sex with one individual doesn’t mean she consented to sex with another; precisely the point, really, made by the court of appeals. And so Staten would have to argue that under the circumstances, such a rigid and mechanistic construction of the rape-shield law would violate his right to present a defense, Chambers v. Mississippi, 410 U.S. 284, 294-95 (1973). He was, after all, permitted to testify that S.P. had sex with Ace immediately before he did; and if his story seemed to be outlandishly confected, it surely would have been rendered plausible by corroboration in the form of DNA.

Sentencing – Harsh and Excessive Review 

The 35-year sentence, based on “appropriate” factors such as the aggravated nature of the offense and Staten’s prior serious record, wasn’t harsh and excessive, ¶¶14-19. General standard of review recited:

¶15      Sentencing is within the discretion of the trial court, and our review is limited to determining whether the trial court erroneously exercised that discretion.  McCleary v. State, 49 Wis. 2d 263, 277–278, 182 N.W.2d 512, 519–520 (1971).  The trial court must consider the three primary sentencing factors:  the gravity of the offense, the character of the defendant, and the need to protect the public.  Id., 49 Wis. 2d at 274–275, 182 N.W.2d at 518.  We will find an erroneous exercise of discretion “only where the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”  Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461 (1975).

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