Several items of testimony, coming to light after trial, directly contradict the trial testimony of the main State’s witnesses, leading the court to conclude that the real issue in controversy – Davis’s alleged involvement in a drug-house robbery and murder of an occupant – wasn’t fully tried and a new trial is therefore required. These include:
- State witness Henderson (promoted at trial by the State as “truthful and credible”) admitted to postconviction witness Derrick Griffin that he committed the robbery, and named several other participants without mentioning Davis’s name: “Griffin’s testimony about Henderson’s admission directly contradicts Henderson’s testimony at trial,” ¶¶19-20.
- Henderson, similarly, told another postconviction witness (Reed) that Henderson was in jail for a shooting, and named two others – neither of whom was Davis – as participating; and, that Henderson was willing to testify against Davis though Davis wasn’t involved in the shooting: “Reed’s testimony directly contradicts Henderson’s trial testimony. Henderson’s statements to Reed do not merely serve as impeachment evidence, but rather as affirmative evidence of Davis’s innocence,” ¶24.
- State witness Ringstad testified that Davis, a pretrial cellmate, admitted his participation in the crime but postconviction witness Winkler testified that before trial Ringstad said he had gone into Davis’s footlocker, rifled through his files, and planned to use that information to get better prison treatment: “Winkler’s testimony goes directly to the issue of Davis’s presence at the robbery and participation in Matthew’s murder. This testimony, combined with the testimony already described, directly contradicts Ringstad’s testimony—a key element in the State’s case against Davis,” ¶29.
Davis gave an in-custody statement – a detective testified at trial that Davis admitted having been present at the robbery; Davis testified at trial and disputed the accuracy of the detective’s account, ¶33. This detail doesn’t affect the decision to grant relief: “we conclude that the evidence which the jury should have heard, but did not, made it impossible for the jury to weigh all appropriate factors in considering the importance of Davis’s properly admitted confession,” ¶34. (Davis also raises an Edwards violation, which the court discusses in passing without reaching the merits, ¶¶30-34; ¶36 (concurrence).)
If there is a theme, it is that the jury didn’t hear testimony that went to the very heart of (“directly contradicts”) the State’s theory. Thus, the court isn’t impressed by possible infirmities in the new-witness testimony, ¶20: “The State contends that Griffin’s testimony is ‘conflicting and confused.’ It is up to a jury to determine how much weight and credibility to give to Griffin’s testimony. State v. Nelson, 2006 WI App 124, ¶52, 294 Wis. 2d 578, 718 N.W.2d 168.”
The holding is necessarily fact-specific, which is in the nature of interest-of-justice caselaw. But the test, of course, is a question of law and therefore recurrent and worth mention:
¶16 We possess a broad power of discretionary reversal pursuant to Wis. Stat. § 752.35, which provides authority to achieve justice in individual cases. See Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990). We may exercise our power of discretionary reversal where it appears from the record that the real controversy has not been fully tried, or if it is probable that justice has for any reason miscarried. See§ 752.35. We also “may exercise [our] power of discretionary reversal under the first part of Wis. Stat. § 751.06, without finding the probability of a different result on retrial [if we conclude] that the real controversy has not been fully tried.” See State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996). “‘[T]he real controversy has not been tried if the jury was not given the opportunity to hear and examine evidence that bears on a significant issue in the case, even if this occurred because the evidence or testimony did not exist at the time of trial.’” State v. Maloney, 2006 WI 15, ¶14 n.4, 288 Wis. 2d 551, 709 N.W.2d 436 (citation omitted). The only factor under § 752.35 applicable here is whether the real controversy, which is whether Davis’s alleged involvement in the robbery of the drug house and the murder of Matthews, was fully tried. This requires us to determine whether, considering the totality of circumstances, a new trial is required to accomplish the ends of justice. See State v. Wyss, 124 Wis. 2d 681, 735-36, 370 N.W.2d 745 (1985).
(The opening sentence is an especially nice statement of the standard of review, “We possess a broad power of discretionary reversal pursuant to Wis. Stat. § 752.35, which provides authority to achieve justice in individual cases.”).
As indicated above, the initial decision was withdrawn – this, in response to a State’s motion for reconsideration challenging the court’s authority to grant relief in the interest of justice outside the direct appeal process. The court rejects this idea in the reissued opinion, ¶35 n. 7. Although arguably restrictive language may be found in State v. Allen, 159 Wis. 2d 53, 55, 464 N.W.2d 426 (Ct. App. 1990) (“Our power of discretionary reversal under sec. 752.35, Stats., may be exercised only in direct appeals from judgments or orders.”), the court now places that language in context and gives it a narrow application: “We did not discuss the expansive authority of discretionary reversal explained by the supreme court in Vollmer,” ¶35 n.7. Instead, the court of appeals has a “primary duty of ‘doing justice in an individual case …. ‘Doing justice’ under the authority of Wis. Stat. § 752.35 is what this court attempted to do in this decision. Our reversal of a trial court order denying a new trial is specifically permitted by § 752.35 …. ” Id. And if any inconsistency may be found between Allen and Vollmer, the latter controls. Id.