“This case involves a dual tragedy: the death of one innocent man and the conviction of another.” (Initial Brief at 1). Not one of the many eyewitnesses to this homicide, which occurred during a large house party, saw Wilber shoot Diaz, the deceased. In fact, Diaz was shot in the back of the head and fell face first toward Wilber, not away from him. The State’s theory was that the shot spun Diaz around causing him to fall toward the shooter. It offered no expert to prove that this was possible.
The “facts” of this case drove the court of appeals decision to affirm the circuit court’s denial of Wilber’s §974.06 motion. However, the “fact section” in the court of appeals’ opinion bears little resemblance to the “fact section” in Wilber’s brief-in-chief. It is interesting to skim both.
Wilber raised 7 issues in a 40-page appellate brief. The court of appeals quickly disposed of all of them with an 8-page analysis (recitation of the procedural history consumed most of the opinion).
Newly-discovered evidence. Wilber sought a new trial based on newly-discovered evidence: an affidavit from one eyewitness who saw a different person, Muniz, shoot Diaz from behind, and an affidavit from a second eyewitness who said that Muniz confessed to the shooting. (Muniz is now deceased.) The circuit court denied this claim without a hearing, and the court of appeals affirmed because the first eyewitness’ statements allegedly were not “newly-discovered.” Wilber asked his defense lawyer to investigate this witness but he didn’t do it. And the second eyewitness’ statements allegedly were inadmissible hearsay. (Opinion ¶¶30-34).
Postconviction discovery. The State gave Wilber’s trial counsel 141 crime scene photos, but he didn’t keep copies of them. So Wilber asked to see them to prove a claim of ineffective assistance of trial counsel in his §974.06 motion. The court of appeals held that he was not entitled to them based on State v. O’Brien, 223 Wis. 2d 303, 323, 588 N.W.2d 8 (1999), which authorizes postconviction discovery when there is a reasonable probability that the requested evidence would have altered the result of the trial. According to the court of appeals, it did not matter what the 141 photos showed because some of the trial witnesses testified that Wilber behaved aggressively that night and was seen with a gun immediately after the shooting. (Opinion, ¶37).
Wilber argued that O’Brien doesn’t apply here because he wasn’t seeking postconviction “discovery.” He just wanted a copy of the photos that the State previously gave to trial counsel in order to recreate the crime scene and show that the State’s theory was physically impossible. The court of appeals’ refusal to allow him access to the photos makes no sense for numerous reasons. For one thing, the witnesses’ testimony does not prove that Wilber shot Diaz or refute Wilber’s theory that it was physically impossible for him to have been the shooter. Also, the court of appeals ignores the fact after the shooting Wilber was seen with semi-automatic handgun, not with the murder weapon (a revolver).
Ineffective assistance of trial and postconviction counsel. There are multiple claims here but an interesting one is that trial counsel failed to retain an expert to explain how the physical evidence contradicted the State’s speculative theory of that Wilber shot Diaz. The court of appeals denied all of the claims on the grounds that Wilber failed to prove prejudice. It held–succinctly–“the evidence was sufficient to support a conviction.” (Opinion, ¶42).
Request for remand to amend postconviction motion. Wilber appealed the denial of his §974.06 motion. then His current appellate (Rob Henak) filed a notice of appearance and requested a remand to amend defects in his motion as encouraged by State v. Sutton, 2012 WI 23, 339 Wis. 2d 27, 810 N.W.2d 210 (2012). The court of appeals refused to remand on the grounds that the amendment wouldn’t do any good. Wilber raised the issue again in his appellate brief. The court of appeals held that raising this issue in his brief was “inappropriate.”
Sutton involved a request for remand to amend a §809.30 postconviction motion rather than a §974.06 postconviction motion. That should not matter. Either way, a remand allows the defendant to get his ducks in a row–especially in cases like this one where Wilber filed his appeal pro se but retained appellate counsel before filing his briefs. If the court of appeals denies a Sutton-type remand request, then what is the defendant to do?
New trial in the interests of justice. Wilber claimed that the real controversy (whether he shot Diaz) was not tried because new evidence pointed to Muniz as the shooter, and his theory (unlike the State’s) fit the undisputed physical evidence. The court of appeals flicked this claim off with a simple “we already explained why the newly-discovered evidence did not warrant a new trial.” (Opinion, ¶¶46-47).
Honestly, this decision reads like a concerted effort to prevent Wilber from making and supporting some very compelling claims.