State Of Wis. v. Henley, 2008AP697-CR.

• Decision Date: 21 July 2010
• Docket Number: No. 2008AP697-CR.,2008AP697-CR.
• Citation: 787 N.W.2d 350,2010 WI 97
• Parties: STATE of Wisconsin, Plaintiff-Appellant,v.Dimitri HENLEY, Defendant-Respondent.
• Court: Wisconsin Supreme Court

787 N.W.2d 350

2010 WI 97

STATE of Wisconsin, Plaintiff-Appellant,v.Dimitri HENLEY, Defendant-Respondent.

No. 2008AP697-CR.

Supreme Court of Wisconsin.

Argued Oct. 20, 2009.

Decided July 21, 2010.

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For the plaintiff-appellant the cause was argued by Katherine D. Lloyd, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-respondent there were briefs by Keith A. Findley, John A. Pray, Byron Lichstein, and the Frank J. Remington Center, University of Wisconsin Law School, Madison, and oral argument by Keith A. Findley.

An amicus curiae brief was filed by Colleen D. Ball, first assistant state public defender, Nicholas L. Chiarkas, state public defender, and William J. Tyroler, assistant state public defender, Milwaukee, on behalf of the Office of the State Public Defender.

MICHAEL J. GABLEMAN, J.

¶ 1 This case comes before us on certification following the circuit court's order granting a new trial to Dimitri Henley eight years after his conviction of five counts of second degree sexual assault. The court of appeals certified five questions ¹ to us regarding the authority of Wisconsin courts to order a new trial in the interest of justice.

¶ 2 The facts of this case put the issues plainly into focus. Following his conviction, Henley utilized the normal procedural mechanisms to seek a new trial on multiple grounds, including on the ground that the interest of justice required giving him a new trial because testimony that he viewed as crucial had not been presented. He first filed a postconviction motion in the circuit court under Wis. Stat. § 974.02 (2007-08),² which was denied. He appealed to the court of appeals under § 974.02 and lost there too. He then filed a petition for review in this court, which we denied. After that, Henley filed a petition for a writ of habeas corpus in federal court; his petition was denied. A year after that petition was denied, he filed a motion in federal court seeking relief from that denial, which was also denied. Henley did not appeal his case to the Seventh Circuit.

¶ 3 Years later, after charges against his two co-defendants had been dismissed Henley moved for a new trial under Wis. Stat. § 805.15(1) in the interest of justice on the same grounds-the absence of the purportedly crucial testimony-that had already been rejected by five different courts. The same trial judge who presided over Henley's conviction and sentencing, and who rejected his original postconviction motion on the same grounds, this time granted him a new trial. The State appealed, and the court of appeals certified the case to us. Several important procedural questions await our review.

¶ 4 The first two issues concern whether and when certain provisions governing civil procedure in Wisconsin may be utilized by a convicted criminal defendant seeking a new trial. The second two issues relate to the inherent power of Wisconsin courts to order a new trial in the interest of justice. The issues we address are as follows:

1. May a circuit court award a new trial to a convicted criminal defendant in the interest of justice under Wis. Stat. § 805.15(1)? Relatedly, is such a challenge subject to the time limitations contained in Wis. Stat. § 805.16(1), or may a convicted criminal defendant file a motion for a new trial under § 805.15(1) at any time?

2. May a circuit court award a new trial to a convicted criminal defendant in the interest of justice under Wis. Stat. § 806.07(1)(g) or (h)?

3. Do Wisconsin circuit courts possess inherent authority to order a new trial in the interest of justice at any time for a convicted criminal defendant?

4. Should this court exercise its inherent or statutory authority in this case to order a new trial in the interest of justice?

¶ 5 We hold that neither Wis. Stat. § 805.15(1) nor § 806.07(1)(g) or (h) are available procedural mechanisms for a convicted criminal defendant to challenge his or her conviction or sentence. We further hold that Wisconsin circuit courts do not have the inherent authority to order a new trial in the interest of justice when a case is not before the court under a proper procedural mechanism. Therefore, the circuit court did not have the authority to order a new trial in this case. Finally, we decline to exercise our authority to order a new trial for Henley because his case was fully tried and justice has not miscarried. Accordingly, the decision of the circuit court is reversed with instructions to deny Henley's motion for a new trial.

I. FACTS

¶ 6 These facts are taken from Henley's second trial.³ Testimony that would have contradicted some of these facts (but was not presented in Henley's trial) is explained later as needed.

¶ 7 S.E.S., an 18-year-old female freshman, had recently moved into the residence dorms of the University of Wisconsin-Whitewater. On the night of September 5, 1998, before classes had started, S.E.S. and her roommate, Heidi Sheets, returned to their dorm building from a party where each had drunk a few beers. They first stopped in the dorm room of Shawn Demain, where they met Dimitri Henley, Jarrett Adams, and Rovaughn Hill, all of whom had traveled from Chicago to sell cologne.

¶ 8 Around 1:00 a.m. on September 6, S.E.S. left to go to her room. S.E.S testified that she walked up to her room alone, but that after she entered her room, she turned and was surprised by Henley, Adams, and Hill. Sheets testified that she and S.E.S. invited all three men up to her room, and that they left together (although the plan was for Sheets to visit a friend and join them 20-30 minutes later).

¶ 9 Once in the room, one of the men put on a CD, and Adams began to dance with S.E.S. and fondle her breasts and groin, even though she told him to stop. Henley danced with and fondled her as well. Hill then pulled S.E.S. over to Sheets' bed and pulled his pants down. At this point, Sheets entered the room and saw Hill with his pants down. Sheets assumed that S.E.S. was performing or was going to perform oral sex. Hill then said “Do you want some of this, baby?” and Sheets ran out. S.E.S. followed, unrestrained by the men, and tried to talk to Sheets. But Sheets refused to speak with her, at one point calling her a “slut.”

¶ 10 S.E.S. went back down the hallway to leave the floor via a staircase, but Hill blocked her path and “directed” her back to her room, although he did not force her to do so. Adams then told her to lay on the floor, which she did. Adams tried to take her pants and underwear off, which she resisted at first, and then permitted. Over the next several minutes, S.E.S. engaged in three acts of vaginal intercourse, though she did not know who those acts were with. ⁴ While one of the other men was having sex with S.E.S., one of the men rubbed his penis on her face, trying to get her to perform oral sex, which she did not do. This happened a second time when another of the sexual acts was taking place. The three men left immediately after the assault, and S.E.S. called her new boyfriend, who consoled her and eventually convinced her to go to the hospital and report the sexual assaults.

II. PROCEDURAL HISTORY

¶ 11 The procedural history of this case is unusually complex, and vital to understanding the issues in this case, so we relate it in detail.

¶ 12 On December 1, 1998, the State charged Henley, Hill, and Adams each with five counts of first degree sexual assault, one count of second degree sexual assault, and one count of false imprisonment, all as party to a crime. After a three-day jury trial beginning on August 24, 1999, the State moved to amend the charges, which the court granted.⁵ The defendants responded by moving for a mistrial, which the court also granted.

¶ 13 After this, the State proceeded to try the defendants again. Hill, but not the other two defendants, moved for dismissal on double jeopardy grounds. The court denied the motion, and Hill appealed. The court of appeals ordered Hill's case stayed pending appeal, and the circuit court, on the State's motion, severed Hill's case so that trial could proceed against Henley and Adams.

¶ 14 The case against Henley and Adams went to trial on February 8, 2000, wherein the facts noted above were adduced. The jury found both men guilty of five counts each of second degree sexual assault. Henley was sentenced to five concurrent sentences of 20 years each (in effect, a 20-year sentence). ⁶

¶ 15 With the aid of new postconviction counsel, Henley moved for postconviction relief under Wis. Stat. § 974.02.⁷ Among the grounds Henley alleged for dismissal was that his trial counsel was constitutionally deficient.

¶ 16 During this time, Hill's appeal was unsuccessful and he was retried on February 12, 2001. The trial resulted in a hung jury with 11 jurors voting for acquittal and one holding out for conviction. During that trial, Hill testified on his own behalf. He also called Shawn Demain, the resident of the dorm room where S.E.S. first met the defendants, as a witness. Demain testified that of the three African-American men that visited his dorm room that night, two of them left with S.E.S. and Sheets, while the third remained and played video games for 20-30 minutes before departing.⁸ Demain further testified that at some point later that evening, he saw S.E.S. and the defendants together outside in the smoking area.

¶ 17 After learning of Hill's partial success, Henley amended his § 974.02 postconviction motion to allege that his counsel was ineffective for failing to call Demain.

¶ 18 The State attempted to try Hill a third time on May 7, 2001, but on the second day of trial the State moved to dismiss the case with prejudice based on newly-discovered evidence, including notes written by a police investigator regarding her conversation with Hill.⁹ The charges against Hill were then dropped.

¶ 19 After being provided with this previously undisclosed evidence, Henley amended his...