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State v. Denny

Court of Appeals of Wisconsin

March 23, 2016


         Submitted on Briefs November 23, 2015.

          APPEAL from an order of the circuit court for Ozaukee County: JOSEPH W. VOILAND, Judge. Cir. Ct. No. 1982CF425.

         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. HAGEDORN, J. (concurring in part; dissenting in part).


          NEUBAUER, C.J.

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


         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 found him dead. Mohr had suffered blunt force trauma to his head and 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.

          [¶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 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. 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 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.

          [¶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 had been wearing at the time of the murder. Whitaker recalled being at the Denny house with Denny, Kent, Tod Trierweiler, and Russell Schram. Whitaker saw Schram put shoes into a brown paper bag. Schram told her the shoes were the " murder shoes." Schram put the bag in Trierweiler's car on the backseat. Whitaker and the others drove to a gas station. While Trierweiler put gas in the car and paid inside the station, Denny and Schram moved the bag from the interior of the car to the trunk.

          [¶19] Tod Trierweiler testified that he gave Denny a ride to Port Washington. While stopped at a Clark gas station, Denny asked Trierweiler for the keys. Denny then took the keys and placed a brown grocery bag in the trunk, while Trierweiler filled the car with gas and paid the attendant.

          [¶20] Schram also remembered being at the Denny house with Denny, Kent, Trierweiler, and Whitaker. Schram recalled Denny removing a brown paper grocery bag from a closet, taking it out to a car, and placing it on the backseat. Before Denny put the bag in the car's backseat, Denny told Schram that the " murder shoes" were in the bag. After stopping at a gas station, Denny asked Trierweiler for the keys to the trunk. Trierweiler gave him the keys and Denny placed the grocery bag into the trunk. Denny subsequently contacted Schram on a couple of occasions and told Schram that he had to get the shoes out of the car. Schram told Denny that he could get the shoes from Trierweiler. Denny subsequently called Schram from jail and told Schram not to say anything about the shoes or he would become an accessory to the murder. Schram also recalled a conversation with Denny in which Denny told him how long it takes a person to die.

          [¶21] Sometime after Denny placed the bag with the shoes inside Trierweiler's trunk, Trierweiler looked in the trunk. He opened a bag and saw two pairs of shoes--a pair of blue and white tennis shoes and a pair of brown loafers. Trierweiler gave the loafers to Cindy Otto's brother from Texas. Trierweiler wore the tennis shoes everyday for approximately three months. Trierweiler eventually turned the shoes over to the police.

          [¶22] Otto testified that she remembered Trierweiler finding the shoes in a grocery bag in Trierweiler's trunk. She recalled that Trierweiler wore the tennis shoes and gave a pair of shoes to her brother.

          [¶23] The State compared the shoes recovered from Trierweiler to the bloody footprint on the phone book found in the hallway leading to Mohr's room, but the State could not determine that it was the same shoe or even the same-sized shoe.

          [¶24] None of the blood or hair that was collected at the crime scene was matched to Denny.

          [¶25] The jury returned a verdict finding Denny and Kent guilty of first-degree murder. They were sentenced to life imprisonment. Denny appealed, and the judgment of conviction was affirmed.

         Denny's Motion for Postconviction DNA Testing

          [¶26] In May 2014, Denny moved to have certain evidence recovered from the crime scene tested for DNA. He identified the following items for testing: (1) pieces of a bong pipe, (2) hairs removed from Mohr's hands, (3) stray hairs found on Mohr's body, (4) the yellow hand towel, (5) the gloves found near Mohr, (6) the bloody hat found near Mohr, (7) Mohr's bloody clothing, (8) blood on the metal chair found near Mohr's head, (9) the glass cup found near Mohr, (10) the lighter that was under Mohr's right shoulder, (11) the screens found on Mohr's back and clothing, (12) the two facial breathing masks, and (13) Mohr's hair.

          [¶27] Denny argued that this evidence was relevant to the investigation or prosecution that resulted in his conviction, that it was in the possession of the State, and that this evidence either had not been previously subjected to forensic DNA testing or, if it had been previously tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results. In addition, Denny argued that it was " reasonably probable" that he would not have been prosecuted or convicted if " exculpatory DNA results had been available before" the prosecution or conviction. As such, Denny argued, he was entitled to have these items tested at the public's expense or, at the very least, at private expense.

          [¶28] The trial court denied Denny's motion. It concluded that the evidence requested for testing did not relate to any of the evidence presented against Denny at trial, because the evidence that resulted in his conviction was the inculpatory statements he and Kent made to others. In any event, the trial court noted, Denny was convicted as a party to a crime; thus, even if DNA evidence established that another person was involved in the crime, it would not change the evidence that Denny participated in the murder as a party to a crime. The purpose of Wis. Stat. § 974.07, the trial court said, was to exonerate the innocent, and not to show that someone else was involved in the murder. Finally, the results would not exculpate Denny; rather, it would show that others, in addition to Denny, might have been involved.


         Standard of Review and Statutory Interpretation

          [¶29] Denny's right to obtain and test certain biological material pursuant to Wis. Stat. § 974.07 involves statutory interpretation and the application of that statute to specific facts. State v. Moran, 2005 WI 115, ¶ 26, 284 Wis.2d 24, 700 N.W.2d 884. These are questions of law that we review de novo. Id.

          [¶30] " [S]tatutory interpretation 'begins with the language of the statute,'" and if the meaning of the statute is plain, the inquiry typically ends there. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110 (citation omitted). " Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id. In determining a statute's plain meaning, the scope, context, structure, and purpose are important. Id., ¶ 48.

          [¶31] The determinations of whether the evidence Denny seeks to test is relevant and whether it is reasonably probable that he would not have been convicted if exculpatory DNA tests were available are matters committed to the discretion of the trial court. See Moran, 2005 WI 115, 284 Wis.2d 24, ¶ 45, 700 N.W.2d 884; State v. Hudson, 2004 WI App 99, ¶ 16, 273 Wis.2d 707, 681 N.W.2d 316. Thus, we will uphold a trial court's exercise of discretion if it " examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion using a rational process." State v. Weed, 2003 WI 85, ¶ 9, 263 Wis.2d 434, 666 N.W.2d 485.

         The Text of Wis. Stat. § 974.07

          [¶32] As relevant, Wis. Stat. § 974.07 provides as follows:

At any time after being convicted of a crime, adjudicated delinquent, or found not guilty by reason of mental disease or defect, a person may make a motion in the court in which he or she was convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for an order requiring forensic ...

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