State v. Hicks

• Decision Date: 25 June 1996
• Docket Number: No. 94-2256-CR,94-2256-CR
• Citation: 202 Wis.2d 150,549 N.W.2d 435
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Anthony T. HICKS, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 435

549 N.W.2d 435

202 Wis.2d 150

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Anthony T. HICKS, Defendant-Appellant.

No. 94-2256-CR.

Supreme Court of Wisconsin.

Argued May 31, 1996.

Decided June 25, 1996.

For the petitioner-respondent-petitioner the cause was argued by James M. Freimuth, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief by Stephen P. Hurley, John D. Hyland and Hurley, Burish & Milliken, S.C., Madison and oral argument by Stephen P. Hurley.

WILLIAM A. BABLITCH, Justice.

The State of Wisconsin (State) seeks review of a published decision of the court of appeals which reversed a judgment of conviction and remanded the matter for a new trial. Anthony Hicks (Hicks) was convicted of one count of burglary, one count of robbery, and two counts of second degree sexual assault. The court of appeals concluded that Hicks received ineffective assistance of trial counsel because defense counsel failed to have pubic hair specimens found at the crime scene subjected to DNA analysis.

We affirm the court of appeals but on different grounds. We perceive the issue as whether Hicks should be granted a new trial in the interest of justice because the real controversy of identification was not fully tried. See Wis.Stat. § 751.06. ¹ Our examination of the record leads us to conclude that the real controversy was not fully tried inasmuch as: (1) the DNA evidence excluding Hicks as the donor of one of the hair specimens was relevant to the critical issue of identification; (2) the jury did not hear this evidence; and (3) instead, the State used the hair evidence assertively and repetitively as affirmative proof of Hicks' guilt. We cannot say with any degree of certainty that the hair evidence used by the State during trial played little or no part in the jury's verdict. We therefore must conclude the real controversy of identification was not fully tried. Accordingly, we remand the case for a new trial in the interests of justice.

The relevant facts, as summarized by the court of appeals, 195 Wis.2d 620, 623-27, 536 N.W.2d 487 (1995), are as follows. The convictions are the result of charges that on the morning of November 15, 1990, Hicks gained entry into the apartment of D.F., a Caucasian female, with intent to commit a felony, and that once inside the apartment he forced her into two separate acts of sexual intercourse and robbed her of $10.

At trial, D.F. testified that she heard a knock on her apartment door, looked through the peephole for approximately 10 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 and led him to the phone, all the while facing him. While she was in the bathroom getting ready for work, she saw the man's face behind her in the mirror. He threw a scarf around her head and neck, blinding her with both the scarf and her hair. During the assault that followed, she caught glimpses of his face and he spoke to her intermittently. According to D.F., the assailant was in her apartment between 7:25 a.m. and 7:55 a.m. D.F. picked out Hicks as her assailant from an eight-man line-up two days after the assault.

It was stipulated that Hicks was living in the same apartment complex as D.F., and that the two apartments were 90 seconds away by walking.

The State presented testimony from a State Crime Lab analyst that, based on a microscopic examination, a Negro 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 15 days after the assault were "consistent" with the samples provided by Hicks. The analyst, Karen Doerfer, also testified that a Caucasian head hair was found inside the pants Hicks was wearing when he was taken into custody 48 hours after the assault. These pants were not the sweat pants D.F. testified were worn by her assailant. The Caucasian head hair was found when the pants were examined a few weeks later. Doerfer testified that, based on a microscopic examination, the Caucasian head hair was "consistent" with a sample provided by D.F.

Doerfer 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 a microscopic comparison of hair, unlike fingerprints, can never yield a definitive identification. She stated that to a reasonable degree of scientific certainty, the unknown 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. These results were inconclusive. Pursuant to the motion of Hicks' trial counsel, the semen was sent to a laboratory outside the state for DNA analysis. These results were inconclusive due to insufficient sample size.

D.F. testified that no black male had ever been in her apartment before the assault and that only once, almost two years before the assault, was a black female in her apartment. This woman wanted to borrow a blanket.

A defense witness, Savannah Williams, testified that she was living with Hicks at the time of the assault. On that morning, Hicks left their apartment at about 6:40 a.m. to meet his ride for work. He had been complaining that he was not feeling well. According to Williams, Hicks returned after about 20 minutes saying he was not going to work that morning. She was with him, she testified, until about 7:00 a.m., when she left for Rockford, Illinois. She identified a call on the telephone bill made to her mother's house in Rockford at 8:12 a.m., which she said was made by Hicks, reaching her just after she arrived at her mother's.

Hicks' employer testified that Hicks called his place of employment sometime between 7:00 a.m. and 7:30 a.m. that morning to say he would not be in.

After Hicks' conviction and sentencing, Hicks had a DNA analysis performed at Cellmark Diagnostics in Germantown, Maryland, on the hair specimens. He then moved for a new trial contending, among other claims, that his trial counsel had been ineffective in not having DNA testing done on the hair specimens. Hicks asserted that the DNA test result was evidence which, under the circumstances of this case, required a new trial. Hicks also moved for a new trial in the interests of justice. This motion was based, in part, upon the specific theory that the controversy had not been fully tried because the jury had not received the newly-discovered DNA evidence.

At the evidentiary hearing on the motion, Dr. Charlotte Word of Cellmark testified that the unknown Caucasian head hair, the unknown Negro head hair, and two of the unknown Negro pubic hair specimens did not yield DNA sufficient for analysis. Specimens 012 and 013 were the two pubic hair specimens for which enough DNA was obtained. Word testified that specimen 012 revealed the presence of DNA from two sources. This usually indicates, Word said, the presence of a second source of DNA on the hair itself, such as blood, semen or saliva. Because of the two sources of DNA, the results as to this specimen were inconclusive. Hicks was excluded as the source of the main amount of DNA on specimen 012, but Word could not come to a conclusion as to the fainter source of DNA on specimen 012.

As for specimen 013, the DNA from this sample was compared to the DNA extracted from Hicks' blood sample. Word testified that Hicks was excluded as the source of the DNA from this specimen. Word testified that, in her opinion to a reasonable degree of scientific certainty, Hicks was not the donor of hair specimen 013. Word acknowledged that this opinion was based on the assumption that the DNA on specimen 013 was from a single source. Word 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, there was no information to suggest it was not from a single source.

The circuit court, the Honorable Robert R. Pekowsky, denied Hicks' motion for a new trial. The court concluded that there was no prejudice to Hicks as a result of his counsel'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.

The court of appeals reversed the judgment of conviction and ordered a new trial. The court determined that Hicks had received ineffective assistance of counsel under the Sixth Amendment because defense counsel failed to pursue pretrial DNA testing of the pubic hair specimens collected from D.F.'s apartment. The court 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." State v. Hicks, 195 Wis.2d 620, 632, 536 N.W.2d 487 (Ct.App.1995). The State seeks review of the court of appeals' decision.

The State contends that Hicks was not prejudiced by the failure of counsel to obtain these DNA test results and present them to the jury because the results would not have affected the outcome of the trial. According to the State, the court of appeals' decision creates a conundrum for defense counsel whenever counsel is faced with biological evidence recovered by the State that has not been submitted for DNA analysis.

Although the parties' briefs and oral arguments before this court framed the issue in various ways, ² the parties' arguments revolve largely around the fact that the jury did not hear the DNA evidence.

We frame the issue as follows:...