Hicks v. Nunnery

• Citation: 643 N.W.2d 809,253 Wis.2d 721,2002 WI App 87
• Decision Date: 28 March 2002
• Docket Number: No. 01-0751.,01-0751.
• Parties: Anthony HICKS, Plaintiff-Respondent, v. Willie J. NUNNERY, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

253 Wis.2d 721

2002 WI App 87

643 N.W.2d 809

Anthony HICKS, Plaintiff-Respondent, v. Willie J. NUNNERY, Defendant-Appellant.¹

No. 01-0751.

Court of Appeals of Wisconsin.

Submitted on briefs October 5, 2001.

Decided March 28, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of David J. Hase and Stacy C. Gerber Ward of Cook & Franke, S.C., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeff Scott Olson of The Jeff Scott Olson Law Firm, S.C., Madison.

Before Dykman, Roggensack and Deininger, JJ.

s 1. DEININGER, J.

Attorney Willie Nunnery appeals a judgment entered against him in favor of a former client, Anthony Hicks. A jury found Nunnery had been negligent in his representation of Hicks in a criminal matter, and it awarded Hicks $2,606,950 in damages. Nunnery claims that: (1) the trial court erred in failing to grant his motion for judgment notwithstanding the verdict; (2) he is entitled to judgment in his favor because Hicks failed to prove his innocence; (3) the evidence was insufficient to support the jury's answers on causation; and (4) Nunnery is entitled to a new trial because of errors at trial or in the verdict, or alternatively, in the interests of justice.

s 2. We reject all but one of Nunnery's claims of error. We conclude the trial court erred in not asking the jury to determine whether Hicks was innocent of the offenses of which he was convicted. Accordingly, we reverse the appealed judgment and remand for a trial on the limited issue of Hicks's innocence.

BACKGROUND

s 3. Hicks's legal malpractice claim arose out of Nunnery's representation of him in criminal proceedings which resulted in Hicks being convicted and imprisoned for robbery, burglary and sexual assault. We reversed Hicks's conviction in State v. Hicks (Hicks I), 195 Wis. 2d 620, 536 N.W.2d 487 (Ct. App. 1995), concluding that he had been deprived of effective assistance of counsel. The supreme court affirmed our decision, but on other grounds. State v. Hicks (Hicks II), 202 Wis. 2d 150, 549 N.W.2d 435 (1996) (concluding Hicks was entitled to a new trial in the interests of justice because the real controversy was not fully tried). Hicks was subsequently released after spending more than four years in prison and the State dismissed all charges against him.

s 4. The following summary of background facts from the underlying criminal proceeding is largely taken from our opinion in Hicks I, 195 Wis. 2d at 623-29. D.F., a white female, identified Hicks as her assailant from an eight-man line-up two days after she was sexually assaulted in her apartment. At trial, D.F. testified that she heard a knock on her apartment door, looked through the peephole for approximately ten seconds, and saw a black man who told her that he was her upstairs neighbor. The man asked to use her telephone because his was broken. D.F. let the man into her apartment after which he sexually assaulted her and robbed her of $10. According to D.F., the assailant was in her apartment between 7:25 a.m. and 7:55 a.m. D.F. also testified that, prior to this incident, no black male had ever been in her apartment and that only once, approximately one-and-one-half years before the assault, a black female had been in her apartment to borrow a blanket. Hicks stipulated that he lived in the same apartment complex as D.F., and that the two apartments were a 90-second walk from each other.

s 5. The State presented testimony from a state crime laboratory analyst that, based on microscopic examination, a Negro² head hair found on the comforter of D.F.'s bed, and four Negro pubic hairs found when the police conducted a vacuum sweeping of the apartment approximately fifteen days after the assault, were "consistent" with samples provided by Hicks. The analyst also testified that a Caucasian head hair was found inside the pants Hicks was wearing when he was taken into custody forty-eight hours after the assault. These pants were not "sweat pants," however, which is what D.F. testified her assailant wore. The analyst testified that, based on microscopic examination, the Caucasian head hair was "consistent" with a sample provided by D.F.

s 6. The analyst also explained that all Negro hair shares the same characteristics and all Caucasian hair shares the same characteristics, although not all Negro hair is identical and not all Caucasian hair is identical. She also testified that microscopic comparison of hair, unlike fingerprints, can never yield a definitive identification. She stated that to a reasonable degree of scientific certainty, the Negro and Caucasian hair specimens "could have" come from Hicks and D.F. respectively. Other than the microscopic comparisons, the State performed no other tests on the hair samples. The State performed serological testing on specimens of semen, blood and saliva obtained at the crime scene, but these tests proved inconclusive. The court granted Hicks's motion to have the semen sent to an out-of-state laboratory for DNA analysis, but the results were also inconclusive.

s 7. The jury found Hicks guilty and the court sentenced him to nineteen years in prison. Hicks subsequently obtained DNA testing of the hairs which had been introduced into evidence by the State during the trial. The results of the DNA testing raised questions about Hicks's guilt. Hicks then filed a motion for a new trial on the grounds of ineffective assistance of counsel, newly discovered evidence, and "in the interests of justice."

s 8. At the evidentiary hearing on the motion, Dr. Charlotte Word of Cellmark Diagnostics testified that the Caucasian head hair, the Negro head hair, and two of the Negro pubic hair specimens did not yield sufficient DNA for analysis. One of the two remaining pubic hair specimens, however, revealed the presence of DNA from two sources. This usually indicates, Word said, the presence of a second source of DNA on the hair shaft, such as blood, semen or saliva. Because of the presence of two sources of DNA, the test results as to this specimen were deemed inconclusive. Hicks was excluded as the source of the larger amount of DNA on this specimen, but Word could not come to a conclusion as to the fainter source s 9. The DNA from the remaining specimen was compared to the DNA extracted from Hicks's blood sample. Word testified that Hicks was excluded as the source of the DNA from this specimen. In her opinion to a reasonable degree of scientific certainty, Hicks was not the donor of this hair. Word acknowledged that this opinion was based on the assumption that the DNA on the specimen was from a single source. She also acknowledged that she could not prove the DNA was from a single source, but she stated that was the most reasonable conclusion based on several factors. In addition, she concluded there was no information to suggest it was not from a single source.

s 10. Nunnery testified at the hearing that he was aware that the hair samples would be a major issue in the case. Before Hicks's trial, he knew that the root tissue of hair specimens could be subjected to DNA testing at certain out-of-state laboratories, and he knew of the technology used for that testing. He did not discuss the matter with his client or with the district attorney, however, nor did he petition the court to have this test performed. When asked why he didn't pursue the testing of the hairs, Nunnery testified that he didn't do so for "strategic reasons." He also testified that, "`[o]ne reason obviously would have been costs . . . and in 20-20 hindsight may have been just a failure to further explore these other technologies in hindsight.'" Hicks I, 195 Wis. 2d at 629. He acknowledged that he did not explore the costs of the tests.

s 11. The trial court denied Hicks's motion for a new trial. The court concluded that there was no prejudice to Hicks resulting from Nunnery's failure to obtain DNA test results for trial because it was not reasonably probable that a new trial with the DNA testimony would result in a different verdict. Hicks appealed, and this court reversed the judgment of conviction and ordered a new trial. We concluded that Hicks had received ineffective assistance of counsel because Nunnery failed to pursue available pretrial DNA testing of the hair specimens collected from D.F.'s apartment. We reasoned that there was a "probability sufficient to undermine confidence in the outcome that, but for counsel's failure to subject the hair specimens to DNA analysis, the result of the trial would have been different." Id. at 632.

s 12. On review, the Wisconsin Supreme Court affirmed our decision on the grounds that Hicks was "entitled to [a] new trial in the interests of justice." Hicks II, 202 Wis. 2d at 150. The court concluded that, because the hair evidence was such a critical issue at trial and the major issue in the case was identification, in view of the DNA results, "the issue of identification was not fully tried." Id. at 172. The State subsequently dropped all charges against Hicks, and he was released from custody after spending over four years in prison.

s 13. Hicks then filed a legal malpractice action against Nunnery. In his complaint, Hicks alleged that Nunnery was negligent in failing to have the hair specimens subjected to DNA analysis prior to trial and also in failing to procure testimony from a possible alibi witness. Nunnery and Hicks filed cross-motions for summary judgment, both of which were denied. A jury returned a verdict finding Nunnery negligent for both his failure to obtain DNA testing and his failure to procure the testimony of the possible alibi witness, and it awarded Hicks $2,606,950 in damages. Nunnery filed several post-verdict motions, all of which the trial court denied. Nunnery appeals the judgment against him.

ANALYSIS

I.

s 14. We first address Nunnery's claim that the trial court erred in failing to grant his motion for judgment...