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§ 974.06 Motion: Laches Inapplicable; Newly Discovered Evidence: Generally – Third-Party Guilt (“State v. Denny” Test)

State v. Terry G. Vollbrecht, 2012 WI App 90 (recommended for publication); case activity

§ 974.06 Motion – Laches Inapplicable 

¶17 n. 14:

While we acknowledge the State’s argument that Vollbrecht’s Wis. Stat. § 974.06 motion is barred by laches and its request that we certify the issue to the supreme court, we decline the State’s invitation.  The State concedes that the supreme court has previously held that laches does not apply under § 974.06. See State v. Evans, 2004 WI 84, ¶35, 273 Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900; see also State v. Bembenek, 140 Wis. 2d 248, 251-52, 409 N.W.2d 432 (Ct. App. 1987) (a motion seeking a new trial on the basis of newly discovered evidence may be brought at any time).  To the extent that the State would like the supreme court to revisit this holding, the State is welcome to pursue it on further appeal.

The glancing reference to Bembenek is the only mention of the principle that newly discovered evidence supports a collateral, § 974.06 attack on the conviction – but the very terseness of this discussion simply underlines how non-controversial is the stated principle. Well-settled or not, the idea of NDE-collateral attack might be a bit obscure, hence this mention.

Newly Discovered Evidence, Generally 

¶18      A defendant seeking a new trial on the basis of newly discovered evidence must establish, by clear and convincing evidence, that (1) the evidence was discovered after conviction, (2) the defendant was not negligent in seeking to discover it, (3) the evidence is material to an issue in the case, and (4) the evidence is not merely cumulative.  State v. Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42; State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62.  We review the postconviction court’s decision on whether to grant a new trial based on newly discovered evidence for an erroneous exercise of discretion.  See Plude, 310 Wis. 2d 28, ¶31.  If the defendant satisfies all four criteria, the reviewing court then examines whether it is reasonably probable that, had the jury heard the newly discovered evidence, it would have had a reasonable doubt as to the defendant’s guilt.  See id., ¶32.  This presents a question of law.  Id., ¶33.  A reasonable probability of a different outcome exists if there is a reasonable probability that a jury, looking at both the old evidence and the new evidence, would have a reasonable doubt as to the defendant’s guilt.  Id.

An NDE claim by its very nature is highly fact-specific, so no attempt is made here to summarize all the details. Vollbrecht was convicted of a rape-murder in 1989; he now has evidence that another individual not only raped and murdered a victim close in time and place, but made admissions of guilt for Vollbrecht’s alleged crime. The trial court awarded a new trial, and the court of appeals now affirms. The court’s analysis of “Denny” evidence will probably be of greatest interest, and is summarized separately. At a somewhat higher level of generality: Vollbrecht was informed of relevant information in 1994, the court declines “to impose a duty to act promptly after discovery of the new evidence. … As the State acknowledges, this requirement does not currently exist,” ¶¶21-22. The particulars always matter, though, and it is worth noting (not least because the court does, ¶23 n. 15) that Vollbrecht’s trial counsel made a very broad request for inculpatory information about the very suspect presently at issue, and that the prosecutor denied having anything. “Given Vollbrecht’s broad request and the prosecutor’s response, we reject the State’s contention that Vollbrecht was negligent in not specifically requesting certain documents.” Point is, there is no substitute for good lawyering, which here means thoroughness in the form of a detail-oriented investigation and follow-up. That nothing came of it at the time was not counsel’s doing; what was his doing was a foundation that helped support relief, even if decades later.

Evidence – Third-Party Guilt

Under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), evidence that a third party rather than the defendant committed the crime may be admissible, if the defendant “show(s) that the third party had (1) opportunity; (2) motive; and (3) a direct connection to the crime that is not remote in time, place or circumstances,” ¶25. Because such a showing typically implicates extrinsic misconduct, albeit by the third-party, a § 904.04(2) exception must be found to the rule of general exclusion of “other-acts” misconduct, State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). Vollbrecht satisfied that test, in the context of his newly discovered evidence claim. A viable suspect, Kim Brown, was convicted of a similarly committed rape-murder. He lived within about 30 miles and didn’t have an alibi, therefore he had opportunity to commit this crime as well, ¶26. Motive – sexual assault and murder – is straightforward, ¶27. Brown’s admissions to this offense establish a direct connection, ¶28. Sullivan analysis is separate and more elaborate, with the court stressing the need to show probative value, or “the similarities which tend to identify a third party rather than the defendant,” ¶31, citing State v. Scheidell, 227 Wis. 2d 285, 301, 595 N.W.2d 661 (1999). Similarities were abundant, beginning with the fact that both victims were sexually assaulted in a wooded area, killed by being shot from behind, and then left chained to a tree.

¶32      … The postconviction court also noted that the murders were near in time and place. They took place six weeks apart in the summer of 1987 and occurred approximately thirty miles apart in adjoining rural counties and in wooded areas known for young people partying there.  The postconviction court found that the circumstances of these two crimes were distinct and similar and, therefore, the other-acts evidence regarding the Nachreiner evidence was highly probative as to identity.  It further found that the probative value of the other-acts evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or undue delay.

¶33      We have reviewed the record and we are satisfied that the postconviction court’s findings as to the facts and circumstances of the two crimes are not clearly erroneous.  In reaching its determination that evidence of the Nachreiner murder is admissible other-acts evidence, the court then examined the relevant facts, applied a proper standard of law, and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. …

The court has no difficulty concluding that the existence of “a viable alternative suspect,” when none was presented to the first jury, creates a reasonable probability of a different outcome this time around, ¶¶34-36.

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