State v. Denny

• Citation: 373 Wis.2d 390,891 N.W.2d 144
• Decision Date: 28 February 2017
• Docket Number: No. 2015AP202-CR,2015AP202-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jeffrey C. DENNY, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

373 Wis.2d 390

891 N.W.2d 144

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.Jeffrey C. DENNY, Defendant-Appellant.

No. 2015AP202-CR

Supreme Court of Wisconsin.

Oral Argument: October 26, 2016

Opinion Filed: February 28, 2017

For the plaintiff-respondent-petitioner the cause was argued by Misha Tseytlin, solicitor general, with whom on the brief was Daniel P. Lennington, deputy solicitor general, Donald V. Latorraca, assistant attorney general, and Brad D. Schimel attorney general.

For the defendant-appellant, there was a brief and oral argument by Keith A. Findley, and Wisconsin Innocence Project, with whom on the brief was Steven D. Gunder, assistant state public defender.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of a published decision of the court of appeals, State v. Denny , 2016 WI App 27, 368 Wis.2d 363, 878 N.W.2d 679, which reversed the Ozaukee County circuit court's¹ order denying Jeffrey C. Denny's ("Denny") postconviction motion for forensic deoxyribonucleic acid ("DNA") testing of evidence pursuant to Wis. Stat. § 974.07 (2013-14)² and remanded the case for forensic DNA testing at private or public expense. Denny , 368 Wis.2d 363, ¶¶1, 64, 878 N.W.2d 679.

¶2 On November 15, 1982, a jury found Denny and his brother Kent guilty of the murder of Christopher Mohr ("Mohr"). Denny was sentenced to life imprisonment. Over three decades later, in 2014, Denny filed a motion claiming innocence and requesting forensic DNA testing of evidence taken from the scene of Mohr's murder. Denny asked the circuit court to order that the testing occur at public expense, or, in the alternative, at Denny's own expense.

¶3 Whether, and the conditions under which, a court will order such postconviction forensic DNA testing are questions governed by Wis. Stat. § 974.07 ("Motion for postconviction deoxyribonucleic acid testing of certain evidence."). Interpreting this statute, the circuit court below concluded that Denny was not entitled to testing either at public or at private expense. The court of appeals disagreed. We are asked to determine whether Denny has met the statutory requirements for forensic DNA testing of the evidence he has identified.

¶4 We conclude that the circuit court did not err in denying Denny's postconviction motion for forensic DNA testing of certain evidence. Consequently, we reverse the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶5 On January 26, 1982, police discovered Mohr's body in a room on the second floor of a house in Grafton, Wisconsin. On June 25, 1982, a criminal complaint was filed against Denny in Ozaukee County circuit court charging him as party to the crime of the first-degree murder of Mohr, contrary to Wis. Stat. § 940.01 (1981-82) and Wis. Stat. § 939.05 (1981-82). Denny's brother Kent was also charged.

¶6 From November 9 to November 15, 1982, Denny and Kent were tried jointly before a jury.³ At trial, the State presented its case against Denny and Kent in the following general⁴ manner.

¶7 Jonathan Leatherman ("Leatherman") testified that on January 26, 1982, at around 9:30 a.m., he spoke to Mohr on the phone about traveling to Mohr's house to smoke marijuana. Around 10:45 or 10:50 a.m., Leatherman began walking to Mohr's house, arriving there minutes later. Leatherman entered the house, went upstairs, and upon opening the door to "[Mohr's] room" saw Mohr's body on the floor. Leatherman called the "rescue squad" and reported a suicide. He then returned to Mohr's room to retrieve a quarter pound of marijuana which he suspected was in Mohr's room in order to "save [Mohr] from trouble," but ultimately went outside to wait for the police empty-handed.

¶8 Later that day, Leatherman received a call from Kent. When asked when he had last spoken to Kent prior to that call, Leatherman replied, "I'm not sure, maybe a week, I'm not sure, maybe more." Kent asked Leatherman if he "knew to [sic] get any pot" and after Leatherman said he did not, Kent "said what about [Mohr]," and Leatherman informed Kent that Mohr had killed himself. Kent asked Leatherman if he wanted to "stop over" later that day, and Leatherman did so. At Kent's house, Leatherman had a conversation with Kent and Denny about Leatherman's experiences that day.

¶9 Gary Helm ("Helm") testified that he worked for the Grafton Street Department and was also part of the Grafton rescue squad. On January 26, 1982, at around 10:55 a.m. to 11:00 a.m., Helm was "picking up garbage" as part of his employment when he received notification of an attempted suicide. Helm traveled to the reported address where he met a police officer outside of Mohr's house. There, "a fella in front of the house ... was yelling help him, please help him, I don't believe he did it." According to Helm's testimony, Helm and the officer went inside and up to Mohr's room. Helm tried but failed to obtain a pulse reading.

¶10 Daniel Palkovic ("Officer Palkovic") of the Grafton Police Department testified that he was dispatched to Mohr's residence on January 26, 1982, and that he accompanied Helm to Mohr's room. Officer Palkovic described a number of items retrieved from the scene of Mohr's murder, from areas nearby, or from Mohr's body at the autopsy. These items were introduced as exhibits at trial and included: (1) a jacket found in Mohr's room which appeared to have blood on it; (2) a torn shirt removed from Mohr which had blood on it; (3) jeans removed from Mohr which had blood on them; (4) socks removed from Mohr which had blood on them; (5) "under briefs" removed from Mohr which had blood on them; (6) a hat found in Mohr's room which had blood on it; (7) gloves found in Mohr's room; (8) a yellow towel taken from the hallway directly outside of Mohr's room which had blood on it; (9) samples of Mohr's head and pubic hair; (10) hair that had been "clenched in ... Mohr's left hand"; (11) hair located between the fingers of Mohr's right hand, which was "closed somewhat, but ... not fully clenched"; (12) hair stuck to Mohr's chin and neck by dried blood; (13) loose hair "taken from [Mohr's] mouth area" which "[a]ppeared to be" "stuck" there by "a combination of dried blood and possibly saliva"; (14) hair at least apparently stuck to Mohr's pants by dried blood; (15) hair, "a possible seed of some type," and some glass fragments stuck to Mohr's skin and shirt in his "upper chest area"; (16) the "top or main portion of a bong pipe" found in Mohr's room which "appear[ed] to have been shattered or broken on one end" and which appeared to have blood on its "tube"; (17) the "base portion" of the bong pipe, which was found in Mohr's room; (18) the "bowl portion" of the bong pipe, which was found in Mohr's room and which had blood on it; (19) "fragments of ... maroon plexiglass material, similar to the top portion of the bong pipe," found "scattered about" Mohr's room in "[r]oughly the immediate area of [Mohr's] body itself" and which had blood on them; (20) "pieces of the maroon plexiglass portion of the bong pipe and ... a metallic[-]type of rod which was found to be located on the floor under [Mohr] after his body was moved" which had blood on them; (21) a "rubber-type of grommet" used with the bong pipe and found "just inside of the doorway leading into" Mohr's room; (22) a "glass drinking container" which was found on the floor next to an ice cube, had blood on it, and had "a small amount of orange liquid at the bottom of the glass"; (23) ice cubes (by the time of trial, water) collected from various areas of Mohr's room and observed around 11:30 a.m.; and (24) a phone directory found in the hallway on the second floor of Mohr's house with a "footwear impression on the cover" which appeared to be caused at least in part by blood. On cross-examination, Officer Palkovic conceded that the "shoe bottom pattern" imprinted on the phone book was a common one.

¶11 There were additional items discussed during Officer Palkovic's testimony which were not, ultimately, received by the court: (1) a yellow stool which was taken from a room of Mohr's house different from the room Mohr was found in and which appeared to have blood on it; (2) a "small water faucet-type screen" stuck to Mohr's shirt by dried blood, similar to other screens found in Mohr's room; (3) "several screens, safety pins and some screws and some thumb tacks" which "gave the appearance, were attached to the back of the victim's neck and head area, the hair area itself" by "blood which had coagulated"; (4) certain "fragments or pieces of the plexiglass portion of the bong pipe" found "on the floor of ... [Mohr's] bedroom alongside" Mohr's body; (5) scissors found in Mohr's room; (6) a red disposable lighter found in Mohr's room under Mohr's right shoulder which appeared to have blood on it; and (7) blood samples removed from an overturned "metal lawn chair" found in Mohr's room.

¶12 Samples of the defendants' head and pubic hair taken directly from the defendants were also introduced.

¶13 Ozaukee County Deputy Coroner Ruth Heiser testified that on January 26, 1982, she was dispatched to Mohr's house and that she pronounced Mohr dead at 12:05 p.m. that day.

¶14 Dr. Hellen Young ("Dr. Young"), who performed an autopsy of Mohr, discussed the nature and extent of the wounds

on Mohr's body and her opinion of the cause of Mohr's death. According to Dr. Young, Mohr's death was caused by "massive hemorrhage due to multiple incised wounds." Dr. Young described over 50 wounds on Mohr's body and opined that at least some of these wounds were caused by a knife. One wound in particular was a "good-sized gaping wound" in Mohr's "back directly over the area of where the heart would be reflected" requiring "at least two to three" "gashes." Mohr's heart, however, was "intact within [his] body." Mohr had a "large gaping wound

" on his throat. He had two wounds in his stomach "made by one stab wound" which Mohr would have sustained "early in the series of wounds that were received." Dr. Young further discussed...