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Due Process – Right to Present Defense – “Denny” Evidence

State v. Matthew J. Knapp, 2003 WI 121, on certificationvacated and remanded on other grounds for further consideration in light of United States v. Patane, 542 U. S. ____ (2004), Wisconsin v. Knapp, No. 03-590); subsequent decision on remand, Miranda issue: State v. Knapp (II), 2005 WI 127
For Knapp: Robert G. LeBell

Issue/Holding: The defendant may obtain admission of evidence implicating other suspects if such evidence “creates ‘a “legitimate tendency” that the third person could have committed the crime.’” ¶160, quoting, State v. Denny, 120 Wis. 2d 614, 623, 357 N.W.2d 12 (Ct. App. 1984).

¶179. In summary, Denny expressly states that “as long as motive and opportunity have been shown and as long as there is also some evidence to directly connect a third person to the crime charged which is not remote in time, place, or circumstances, the evidence should be admissible.” Id.¶180. The State concedes that motive and opportunity regarding Brunner are not at issue in this case. Therefore, this court must determine whether the testimony of Maas and Farrell presents evidence showing a “direct connection” between Brunner and the murder with which Knapp is charged….

¶182. The evidence at issue in this case connects Brunner and Maas to the crime in a number of ways: (1) It establishes that Brunner lied to investigators about his whereabouts at the time of the murder; (2) Maas was with Brunner at the time his [Brunner’s] wife was murdered, and Maas was observed a short time after Mrs. Brunner’s death carrying a paper bag and getting into Brunner’s waiting truck; and (3) most importantly, the evidence puts Brunner in Watertown in relative proximity to the location where the homicide occurred and near the time of the murder.

¶183. Based upon that information, we hold that the circuit court correctly determined that the evidence established Brunner’s motive, opportunity and connection to the crime. Further, we hold that the circuit court applied the proper legal standard and appropriately exercised its discretion in admitting this evidence under Denny.

For a more recent survey of U.S. Supreme Court cases discussing right to present defense, seeHolmes v. South Carolina, No. 04-1327, 5/1/06 (may not exclude evidence of 3rd-party guilt merely on the strength of case against defendant, regardless of probative value or any tendency to undermine strength of prosecution’s case: “by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt”). In a footnote, the Court cites Denny, among other cases, as not running afoul of this principle. (Amicus brief in support of Holmes, here.)


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