State v. Denny, No. 83-1856-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtBefore SCOTT; BROWN
Citation120 Wis.2d 614,357 N.W.2d 12
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Kent A. DENNY, Defendant-Appellant. d
Docket NumberNo. 83-1856-CR
Decision Date19 September 1984

Page 12

357 N.W.2d 12
120 Wis.2d 614
STATE of Wisconsin, Plaintiff-Respondent,
v.
Kent A. DENNY, Defendant-Appellant. d
No. 83-1856-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs July 6, 1984.
Opinion Released Sept. 19, 1984.
Opinion Filed Sept. 19, 1984.

Page 13

[120 Wis.2d 616] Kenneth L. Lund, Asst. State Public Defender, for defendant-appellant.

[120 Wis.2d 617] Bronson C. La Follette, Atty. Gen., and Barry M. Levenson, Asst. Atty. Gen., for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and ROBERT W. HANSEN, Reserve Judge.

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BROWN, Presiding Judge.

Kent A. Denny was convicted of first-degree murder following a jury trial in which his brother was a co-defendant. Denny raises three issues on appeal. First, he argues that he and his brother should have been tried separately. Second, Denny complains he was denied his constitutional right to present a defense when the trial court refused to allow evidence suggesting that any one of a number of third parties had motive and opportunity to murder Christopher Mohr and that he was also denied the opportunity to produce evidence showing that he has a tendency to fabricate stories. Third, Denny asserts that the trial court erred in refusing to allow defense counsel to review police investigation reports he claims would have supported his theory that others could have killed the victim. We are unpersuaded by any of Denny's arguments and affirm.

Christopher Mohr was found dead on January 26, 1982. An autopsy revealed that Mohr had been stabbed fifty-seven times and had bruises on his head. Police investigation ultimately centered on Kent and Jeff Denny. Both of them had made various inculpatory remarks concerning the murder to a third brother, as well as to friends and acquaintances. After a jury trial, Kent and Jeff Denny were convicted of first-degree murder. Further facts will be presented as necessary.

SEVERANCE

Kent Denny claims that the trial court erred when it refused to sever his trial from that of his co-defendant [120 Wis.2d 618] brother. He maintains that severance was mandated because the state intended to introduce testimony of inculpatory statements by his co-defendant. When reviewing a denial of a motion for severance, our standard of review is whether the trial court abused its discretion. Cranmore v. State, 85 Wis.2d 722, 755, 271 N.W.2d 402, 419 (Ct.App.1978).

Denny bases his argument for severance on the ruling of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), as codified in sec. 971.12(3), Stats. The Court in Bruton held that severance is warranted where a co-defendant's statement will necessarily implicate another co-defendant. In a subsequent United States Supreme Court case, Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), the Bruton rule was modified. A plurality in Parker held that the admission of interlocking confessions, with proper limiting jury instructions, did not violate the defendant's right of confrontation guaranteed by the sixth and fourteenth amendments. Id. 442 U.S. at 75, 99 S.Ct. at 2140. Interlocking inculpatory statements are those statements that clearly demonstrate the involvement of each defendant as to crucial facts such as time, place and activity and an awareness of an overall plan or scheme. Id. at 67-68, 99 S.Ct. at 2136.

Here, the trial court decided that the rule in Parker controlled this situation because the prosecution intended to present testimony of interlocking inculpatory statements by both co-defendants. The defendant, Kent Denny, objects to the court's ruling for three reasons. First, Denny claims that his statements and his brother's do not actually interlock because Jeff's statements are more comprehensive and detailed than Kent's statements and because Jeff's statements constitute a line of evidence that is relevant only to Jeff's culpability.

We review the inculpatory statements de novo to determine whether they were substantially similar on critical[120 Wis.2d 619] points. State v. Smith, 117 Wis.2d 399, 412, 344 N.W.2d 711, 717 (Ct.App.1983). Upon review, we conclude that even if Jeff's statements were more detailed and comprehensive than Kent's, that does not prevent them from being interlocking. There are no apparent inconsistencies in the inculpatory statements, and the statements are substantially similar in terms of the crucial facts and an awareness of an overall plan. Although the statements are not identical, there is little doubt that the statements of the two brothers describe the same crime.

Page 15

See United States v. Fleming, 594 F.2d 598, 604 (7th Cir.), cert. denied, 442 U.S. 931, 99 S.Ct. 2863, 61 L.Ed.2d 299 (1979). In response to the line of evidence objection, we are convinced that Jeff's statements about the disposal of the "murder shoes" coincides with Kent's admissions about the disposal of the "murder shirt" and corroborates their reliability. The statements suggest mutual activity to further the overall scheme of the crime and its concealment. 1

[120 Wis.2d 620] Second, Denny asserts that the trial court's reliance on the Parker ruling is misplaced because a plurality decision cannot be given precedential authority when a "narrower" concurring opinion has been filed. We need not decide that point because the rule of the Parker plurality has been adopted by this court in State v. Smith, 117 Wis.2d at 411-12, 344 N.W.2d at 716-17. The court in Smith held that interlocking co-defendants' statements are per se admissible. Id. 117 Wis.2d at 412, 344 N.W.2d at 716-17. Therefore, the Parker rule is now the rule in this state, and we are bound to follow it.

Third, the defendant maintains that sec. 971.12(3), Stats., mandates severance whenever a co-defendant's inculpatory statements are to be used at trial notwithstanding the Parker decision. The statute, however, is based on the Bruton ruling. Because Parker is an exception to Bruton, it is also an exception here. We conclude that sec. 971.12(3) does not apply to a situation where there is testimony that both co-defendants made interlocking inculpatory statements. 2

Denny challenges the denial of severance for one additional reason. He claims that severance was required because of the antagonistic defenses asserted by the co-defendants and cites Jung v. State, 32 Wis.2d 541, 546, 145 N.W.2d 684, 687 (1966), cert. denied, 386 U.S. 999, 87 S.Ct. 1321, 18 L.Ed.2d 349 [120 Wis.2d 621] (1967), in support of that proposition. Jung does not apply here, however, because it was not the defenses that were antagonistic but, rather, the tactics of respective counsel. Counsel differed several times on the degree of emphasis and on the lines of questioning. Although these differences represent different defense tactics, they do not constitute antagonistic defense theories. In fact, the same defense theory was pursued by both of the Denny brothers. The theory was that neither Kent Denny, nor his brother Jeff, perpetrated the murder and all of the state's witnesses who gave testimony about the defendants' inculpatory statements were liars or could not otherwise be considered credible witnesses. We conclude that defense counsel did not present antagonistic defenses but, rather,

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employed different tactics. We further point out that Wisconsin courts have been reluctant to find that assertions of antagonistic defenses justify severance. See Haldane v. State, 85 Wis.2d 182, 190, 270 N.W.2d 75, 79 (1978). We hold that the trial court's denial of severance was not an abuse of discretion.

TRIAL COURT'S REFUSAL TO ADMIT CERTAIN EVIDENCE

Part of Kent Denny's theory of the case was that he was not the perpetrator of the crime and his inculpatory statements were due to his proclivity for storytelling. He claims he had no motive to murder Mohr but others did. Denny attempted to present evidence by means of an offer of proof to support his theory that others had the motive to kill Mohr. At the same time, Denny sought to prove that he had a reputation as a liar, which would explain his inculpatory statements. The trial court refused to allow Denny to present evidence suggesting that others might have had a motive, ruling it irrelevant. Denny [120 Wis.2d 622] challenges the trial court's rulings as a denial of his right to present a defense.

Denny correctly notes that even though the right to present witnesses in his...

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150 practice notes
  • State v. Grega, No. 96-106.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 10, 1998
    ...evidence to directly connect [the] third person to the crime charged.'" Gilman, 158 Vt. at 214, 608 A.2d at 663 (quoting State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12, 17 (Wis.Ct.App.1984)); see generally D. McCord, "But Perry Mason Made It Look So Easy!": The Admissibility of Evidence Offe......
  • State v. Scheidell, No. 97-1426-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 1999
    ...an unknown third party which is proffered by the accused on the issue of identity. Instead, the State urges us to apply State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct.App.1984) when an accused seeks to use such other acts ¶2 We do not agree that Denny can be molded to fit the facts of th......
  • State v. Koedatich
    • United States
    • United States State Supreme Court (New Jersey)
    • August 3, 1988
    ...State v. Echols, 203 Conn. 385, 524 A.2d 1143 (1987); State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987); accord State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (1984). Courts faced with this issue must necessarily articulate a standard by which to determine the "amount of probative force (......
  • State v. Knapp, No. 00-2590-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 22, 2003
    ...to address this argument. 265 Wis.2d 345 XII.ISSUE SIX—ADMISSION OF HEARSAY EVIDENCE ¶ 157. Knapp filed a motion under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), to admit evidence of other potential suspects including the victim's husband, Brunner. Knapp sought permissi......
  • Request a trial to view additional results
146 cases
  • State v. Grega, No. 96-106.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 10, 1998
    ...evidence to directly connect [the] third person to the crime charged.'" Gilman, 158 Vt. at 214, 608 A.2d at 663 (quoting State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12, 17 (Wis.Ct.App.1984)); see generally D. McCord, "But Perry Mason Made It Look So Easy!": The Admissibility of Evidence Offe......
  • State v. Scheidell, No. 97-1426-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 1999
    ...an unknown third party which is proffered by the accused on the issue of identity. Instead, the State urges us to apply State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct.App.1984) when an accused seeks to use such other acts ¶2 We do not agree that Denny can be molded to fit the facts of th......
  • State v. Koedatich
    • United States
    • United States State Supreme Court (New Jersey)
    • August 3, 1988
    ...State v. Echols, 203 Conn. 385, 524 A.2d 1143 (1987); State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987); accord State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (1984). Courts faced with this issue must necessarily articulate a standard by which to determine the "amount of probative force (......
  • State v. Knapp, No. 00-2590-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 22, 2003
    ...to address this argument. 265 Wis.2d 345 XII.ISSUE SIX—ADMISSION OF HEARSAY EVIDENCE ¶ 157. Knapp filed a motion under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), to admit evidence of other potential suspects including the victim's husband, Brunner. Knapp sought permissi......
  • Request a trial to view additional results
2 books & journal articles
  • Weekly Case Digests March 14, 2022 - March 18, 2022.
    • United States
    • Wisconsin Law Journal Nbr. 2022, January 2022
    • March 18, 2022
    ...important fingerprint evidence of a third party's guilt. Hassel contends that this evidence was admissible pursuant to State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). Denny requires the application of a three-prong test in which the defendant must show the third party's (1) ......
  • Motion for New Trial Admissible Evidence.
    • United States
    • Wisconsin Law Journal Nbr. 2022, January 2022
    • March 16, 2022
    ...important fingerprint evidence of a third party's guilt. Hassel contends that this evidence was admissible pursuant to State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). Denny requires the application of a three-prong test in which the defendant must show the third party's (1) ......

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