State v. Denny, No. 2015AP202–CR.

CourtCourt of Appeals of Wisconsin
Writing for the CourtNEUBAUER, C.J.
Citation2016 WI App 27,368 Wis.2d 363,878 N.W.2d 679
Parties STATE of Wisconsin, Plaintiff–Respondent, v. Jeffrey C. DENNY, Defendant–Appellant.
Docket NumberNo. 2015AP202–CR.
Decision Date23 March 2016

368 Wis.2d 363
878 N.W.2d 679
2016 WI App 27

STATE of Wisconsin, Plaintiff–Respondent,
v.
Jeffrey C. DENNY, Defendant–Appellant.

No. 2015AP202–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 23, 2015.
Opinion Filed March 23, 2016.


878 N.W.2d 681

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Grunder, assistant state public defender of Madison and Lindsey E. Cobbe of Wisconsin Innocence Project, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Donald V. Latorraca, assistant attorney general, and Brad D. Schimel, attorney general.

A nonparty brief was filed by Robert J. DeBauche of DeBauche Law Firm of Madison, for The Innocence Network.

Before NEUBAUER, C.J., REILLY, P.J., and HAGEDORN, J.

NEUBAUER, C.J.

368 Wis.2d 368

¶ 1 Jeffrey C. Denny appeals from an order denying his motion pursuant to WIS. STAT. § 974.07(2013–14)1 to test certain items at private or public expense for the presence of DNA. We hold that it was error to deny Denny's motion. Denny showed that the items he sought to test were relevant to the investigation or prosecution that resulted in his conviction, that it is reasonably probable that he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction, and the testing he seeks was not available at the time of his conviction. While the test results may be inculpatory, inconclusive or exculpatory, for purposes of this postconviction discovery motion, the statute requires us to assume they will be exculpatory. Therefore,

878 N.W.2d 682

he is entitled to test the items he identified for the presence of DNA either at private or public expense.

FACTUAL BACKGROUND

Discovery of Christopher Mohr's Body and Other Evidence

¶ 2 On January 26, 1982, Jonathan Leatherman went to the home of his friend, Christopher Mohr, and

368 Wis.2d 369

found him dead. Mohr had suffered blunt force trauma to his headand sustained over fifty stab wounds. His clothes, including a torn shirt, jacket, jeans, and socks, were soaked in blood. Small screens or "screened type filters" were imbedded in Mohr's shirt or the flesh of his back. Hairs were collected from Mohr's face, clothing, and his left hand, many of which contained dried blood. There were pieces of a shattered bong pipe strewn around, on, and under his body. A red lighter, found under Mohr's right shoulder, was covered in blood. A metal lawn chair, tipped over and near Mohr's head, had numerous blood stains. On the floor were two gloves, and at least one of them, as testing would later show, contained blood. Near the gloves was a dark blue stocking-type cap, which also had blood on it. A glass containing an orange liquid, with blood on the outside, had spilled. Ice cubes were found near the glass. Two fiber-type facial breathing masks—one clean, one heavily soiled—were found near a beanbag chair. Outside the room where Mohr's body was found, on the floor of a hallway, was a yellow, blood-stained hand towel. A telephone book, marked by a bloody footprint, lay nearby.

¶ 3 After pursuing a number of leads, the police received a tip that Trent Denny (Trent) told an acquaintance that his brother, Kent Denny (Kent), had admitted to committing the crime. The police interviewed Kent, and then settled on the defendant, Jeffrey Denny (Denny), as an additional suspect. Denny and Kent were charged with first-degree murder and tried jointly.

The Trial

¶ 4 At trial, the State presented testimony from multiple witnesses who heard Denny inculpate himself.

368 Wis.2d 370

¶ 5 Trent was granted immunity, and he testified that after Kent told him that he killed Mohr, Trent asked Denny if what Kent had told him was true. Denny asked Trent, "[w]hy did Kent tell?" Denny then said that both he and Kent had stabbed Mohr, but that Kent had stabbed him first and in the stomach. Denny recounted that after Kent stabbed Mohr, Kent asked Mohr how he felt. Kent then gave Denny the knife. Denny was scared, he said, and he and Kent decided that they could not let Mohr live. Denny stabbed Mohr. Mohr came after Denny, and Kent then hit Mohr over the head with a bong.

¶ 6 During another conversation, this time with both Kent and Denny, they discussed the clothes they had worn during the murder. They told Trent that they had to dispose of the clothes. Trent testified that he and Kent left their house with Lori Jacque, who drove them to a cemetery. Kent exited the vehicle and returned five minutes later carrying a paper bag that contained clothes. Trent thought he could smell blood on the clothes in the bag. Kent held up a shirt and asked Trent if he could see blood; he said that he could. Jacque drove Kent and Trent to a dump and Kent tossed the bag, now inside a plastic bag, into the dump.

¶ 7 Later, Denny told Trent that Denny had to dispose of the knife. Denny showed Trent the location of the knife, about a hundred yards behind Trent's residence. Trent only saw the handle of the

878 N.W.2d 683

knife and described it as a hunting knife. The police were unable to locate the knife.

¶ 8 Another time, when the three brothers were together, Trent asked Kent and Denny about the murder, and they both told Trent that they did it.

¶ 9 Jacque, who was also granted immunity, testified that she drove Kent and Trent to a graveyard.

368 Wis.2d 371

Kent exited the vehicle, entered the graveyard, and returned with a bundle of clothes under his arm. Kent held up a shirt to show Trent. Jacque gave Kent a brown paper bag in which to place the clothing. She then drove Kent to a location near a dumpsite in order to dispose of the clothing. The clothing was never found.

¶ 10 Several weeks later, during another car trip, she heard a conversation between Denny and Kent about how they forgot the tennis shoes.

¶ 11 On another occasion, while in Kent's room, Jacque recalled that Denny told her about a scratch on his leg, "from where [Mohr] had scratched him."

¶ 12 Denny's sixteen-year-old girlfriend, Tammy Whitaker, testified that Denny told her about the murder. Denny claimed that Leatherman went to Mohr's house, started fighting with him, and then stabbed him. Denny told Whitaker that Leatherman asked Denny to help, and Denny then hit Mohr.

¶ 13 On another occasion, Denny told Whitaker that he and Kent went to Mohr's house, and Kent started stabbing Mohr. Denny went into the bathroom and asked himself what he had gotten into. Denny did not implicate Leatherman on this occasion. Denny told Whitaker that he got a quarter pound of marijuana from the murder.

¶ 14 Patricia Robran, a friend of Denny, testified regarding a conversation she had with him. She recalled that he was crying, and, when she asked why, he said that he and his brother Kent had killed the "boy in Grafton." According to Denny, Kent had asked Mohr how he was feeling, and Mohr replied that he was fine. Kent then stabbed Mohr, and asked how he felt now. Denny admitted to Robran that he and Kent had stabbed Mohr and hit him with a bong. Kent stabbed

368 Wis.2d 372

the victim first and then handed the knife to Denny, telling him to keep doing what Kent had been doing until he returned. Denny stabbed Mohr, but could not remember if it was "five, ten, or fifteen times." Denny explained that all he got out of the murder was a quarter pound of marijuana.

¶ 15 Steve Hansen testified that Denny told him that he and Kent killed Mohr. Denny explained that they went to Mohr's house and went up to his bedroom. Kent pulled a knife and stabbed Mohr. In a prior statement to police, Hansen recalled that Denny stated that Mohr was standing near a window when Kent pulled out a knife. Kent looked at Mohr and looked at Denny. Denny nodded his head and Kent started stabbing Mohr in the stomach. After Mohr fell to the floor, Denny kicked Mohr in the stomach.

¶ 16 Daniel Johansen, who was an inmate with Denny while housed at Ozaukee county jail, testified that Denny told him that he participated in the murder of Mohr. Johansen explained that Denny and Kent went to Mohr's home. Denny left the room, and then heard Kent ask Mohr, "how does this feel?" Denny returned to the room and saw that Kent had stabbed Mohr in the stomach. "Kent just started stabbing him," he testified. Denny also hit Mohr over the head with a bong and kicked him a couple times. Denny told Johansen that he took some shoes to a sewage treatment plant.

878 N.W.2d 684

¶ 17 Kent made multiple inculpatory statements to others. He also implicated Denny in statements to one witness.

¶ 18 Several witnesses testified regarding the disposal and recovery of the shoes Denny...

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2 practice notes
  • State v. Denny, No. 2015AP202-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • February 28, 2017
    ...KINGSLAND ZIEGLER, J.373 Wis.2d 392¶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 mot......
  • Office of Lawyer Regulation v. Gatzke (In re Gatzke), No. 2013AP1918–D.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 17, 2016
    ...J. GABLEMAN, J. (concurring in part, dissenting in part).¶ 63 I concur in the portion of the opinion suspending Attorney Gatzke's license 878 N.W.2d 679to practice law for three years, imposing full costs, and requiring him, upon reinstatement, to submit to trust account monitoring. I disse......
2 cases
  • State v. Denny, No. 2015AP202-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • February 28, 2017
    ...KINGSLAND ZIEGLER, J.373 Wis.2d 392¶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 mot......
  • Office of Lawyer Regulation v. Gatzke (In re Gatzke), No. 2013AP1918–D.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 17, 2016
    ...J. GABLEMAN, J. (concurring in part, dissenting in part).¶ 63 I concur in the portion of the opinion suspending Attorney Gatzke's license 878 N.W.2d 679to practice law for three years, imposing full costs, and requiring him, upon reinstatement, to submit to trust account monitoring. I disse......

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