State v. Avery

• Decision Date: 30 January 2013
• Docket Number: No. 2010AP1952.,2010AP1952.
• Parties: STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Brian K. AVERY, Defendant–Appellant.
• Court: Wisconsin Supreme Court

345 Wis.2d 407

826 N.W.2d 60

2013 WI 13

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,

v.Brian K. AVERY, Defendant–Appellant.^†

No. 2010AP1952.

Supreme Court of Wisconsin.

Argued Oct. 5, 2012.

Decided Jan. 30, 2013.

For the plaintiff-respondent-petitioner, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant, the brief was filed by Keith A. Findley and Tricia J. Bushnell, and the Wisconsin Innocence Project, University of Wisconsin Law School, Madison, and oral argument by Keith A. Findley.

An amicus curiae brief was filed by Robert R. Henak and Henak Law Office, S.C., Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers.

An amicus curiae brief was filed by James Friedman and Godfrey & Kahn, S.C., Madison, Lori R. Mason and Cooley, LLP, Palo Alto, Kyle C. Wong and Maco Stewart, and Cooley, LLP, San Francisco, on behalf of the Innocence Network.

An amici curiae brief was filed by Michael B. Van Sicklen and Foley & Lardner, LLP, Madison, on behalf of the following: Professor D. Michael Risinger, the John J. Gibbons Professor of Law at Seton Hall University School of Law; Thomas L. Bohan, Ph.D., J.D., a Former President of the American Academy of Forensic Sciences; Simon Cole, Member of the American Judicature Society's Commission on Forensic Science and Public Policy; Dr. Itiel E. Dror, Institute of Cognitive Neuroscience at University College, London, and is also the principal consultant and researcher at Cognitive Consultants, International; Professor Gary Edmond, Director of the Program in Expertise, Evidence and Law and an Australian Research Council Research Fellow in the School of Law at The University of New South Wales, Sydney, Australia; Dr. Allan Jamieson, Director of The Forensic Institute in Glasgow, Visiting Professor of Forensic Sciences at Staffordshire University, and a Fellow of the British Society of Biology (formerly the British Institute of Biology); Dr. Roger Koppl, Director of the Institute for Forensic Science Administration of Fairleigh Dickinson University, where he is also a Professor of Economics and Finance; Irving L. Kornfield, Ph.D., Professor of Biology and Molecular Forensics, University of Maine; Dr. Dan Krane, Professor of Molecular Biology at Wright State University; Professor Jennifer L. Mnookin, Professor of Law at the UCLA School of Law; Professor Christopher T. Robertson, Associate Professor of Law at the University of Arizona Rogers College of Law; Dr. Michael J. Saks, the Regents' Professor of Law and Psychology and Faculty Fellow, Center for Law, Science & Innovation at Arizona State University; Dr. William C. Thompson, Professor at the University of California at Irvine (UCI), holding joint appointments in the School of Law and Department of Psychology and Social Behavior.

ANNETTE KINGSLAND ZIEGLER, J.

[345 Wis.2d 413]¶ 1 This is a review of a published decision of the court of appeals,¹ which reversed the decision of the Milwaukee County Circuit Court, Judge Dennis Cimpl presiding, denying Brian Avery's (Avery) motion for a new trial.

¶ 2 In 1995, a jury convicted Avery of two counts of robbery, party to a crime. Twelve years later, in 2007, Avery brought a motion for postconviction relief. Avery argued that he should be entitled to a new trial under the theories of newly discovered evidence and in the interest of justice. Both arguments were based on new expert analysis of a video of one of the robberies. By applying new technology, digital photogrammetry,² one expert concluded that Avery was too tall to be the robber in the video. After an evidentiary hearing, the circuit court denied Avery's motion for a new trial. The court of appeals reversed. We now reverse the court of appeals and conclude that Avery is not entitled to a new trial under either theory.

¶ 3 We conclude that there is not a reasonable probability that a jury, looking at both the evidence presented at trial and the new digital photogrammetry evidence, would have a reasonable doubt as to Avery's guilt. We also conclude that the court of appeals erroneously exercised its discretion when it failed to properly analyze whether this was an exceptional case that entitled Avery to a new trial in the interest of justice. Avery is not entitled to a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 4 In July 1994, Avery was charged with two counts of armed robbery, party to a crime, in violation of Wis. Stat. §§ 943.32(1)(b), (2)³ and 939.05 (1993–94).⁴The first count related to a robbery that occurred at Malone's Fine Foods (Malone's) on the evening of July 7, 1994. The second count related to a robbery that occurred at Attari Food Market (Attari) the afternoon of July 8, 1994.

¶ 5 During the four-day jury trial in April 1995, the State introduced two witnesses who had identified Avery as the perpetrator, Avery's confession, Avery's written apology, and a telephone conversation Avery had with his mother wherein he apologized for getting involved.The first identification witness was Alcherie Simmons (Simmons), a witness to the Malone's robbery. During the trial, she recanted and told the jury that she had never identified Avery to the police. However, Detectives James Kraft and Ralph Spano testified that they each interviewed Simmons shortly after the robbery, and that during those interviews, Simmons had identified Avery as the robber from a set of photographs. They also testified that she recognized Avery from a local Boys and Girls Club and Sherman Park. Detective William Blumenberg (Blumenberg) testified that Simmons told him she feared the robbers would retaliate against her if she spoke to the police. Officer Eduardo Negron testified that Simmons told him if she was put on the stand, she would “look stupid” and would say she did not know anything. The second identification witness was Mueen Hamdan (Hamdan), who witnessed the Attari robbery. Hamdan identified Avery from a set of photographs about three weeks after the robbery. He also identified Avery in the courtroom as one of the robbers.

¶ 6 Blumenberg also testified that Avery had confessed to participating in both robberies. Avery was 19 years old at the time of his arrest and was a high school graduate. Blumenberg testified that he had interrogated Avery on the afternoon of July 10, 1994, and that Avery told him the robbers met up at Sherman Park before both robberies, drove over to the stores, committed the robberies, and drove back to Sherman Park. Blumenberg relayed that Avery confessed to being the person with the sawed-off shotgun in the video of the Malone's robbery and that Avery identified the rest of the robbers by their names or nicknames.⁵Blumenberg testified that Avery had signed the interrogation form detailing the robberies and that Avery personally wrote an apology on the form. Finally, Blumenberg testified that after the interrogation, he overheard Avery call his mother and apologize to her that he had “gotten involved.”

¶ 7 The jury was shown the video of the Malone's robbery during the trial to provide context for witness testimony. In closing arguments, however, the prosecutor asked the jury not to rely on the video for identification because it was of such poor quality.

¶ 8 Throughout the trial, Avery maintained his innocence. Three alibi witnesses testified that Avery was watching basketball at North Division High School shortly before the Malone's robbery.⁶Two witnesses testified to seeing Avery as they left the gym at approximately 8:15 p.m.; one witness testified to seeing Avery as the witness left the gym at approximately 8:05 p.m. Two of Avery's family members testified that Avery was at home when the Attari robbery occurred.

¶ 9 Avery testified that on July 7, the date of the Malone's robbery, he and his friends watched basketball at North Division High School from about 7 p.m. until approximately 8:30 p.m. He testified that after the games, he went to two friends' houses and got home about 11 p.m. He also testified that on July 8, the date of the Attari robbery, he was at home and talking on the telephone with a high school friend. That testimony was corroborated by the friend and by phone company records. Finally, Avery testified that his confession was coerced. He testified that he maintained his innocence throughout the first interview in the early morning hours of July 10; that he did not sleep between the end of the first interview at approximately 5:30 a.m. and the beginning of the second interview, at approximately 12 p.m.; and that the detectives told him he could go home only if he cooperated. He testified that when he confessed, he was simply agreeing to the information that the detectives relayed to him, and that he wrote the apology because the detectives told him the prosecutor would not come down as hard on him.⁷ He testified that he was not involved in the robberies.

¶ 10 On April 7, 1995, the jury found Avery guilty of both robberies.

¶ 11 On June 17, 1996, Avery filed a motion for postconviction relief under Wis. Stat. § 809.30 (1993–94). The motion was partially granted and partially denied by the circuit court on October 1, 1996, granting an evidentiary hearing. On December 4, 1996, the circuit court held a Machner⁸ hearing to determine if Avery's trial counsel was ineffective. On January 9, 1997, the circuit court issued a decision and order denying all of Avery's postconviction motions. Avery appealed his conviction and trial court orders denying his motions for postconviction relief. On December 1, 1998, the court of appeals affirmed the circuit court judgment and orders.⁹ Thereafter, Avery petitioned this court for review which was denied on April 27, 1999.

¶ 12 Over 12 years after his conviction, on October...