on Briefs November 23, 2015.
from an order of the circuit court for Ozaukee County: JOSEPH
W. VOILAND, Judge. Cir. Ct. No. 1982CF425.
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.
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.
nonparty brief was filed by Robert J. DeBauche of DeBauche
Law Firm of Madison, for The Innocence Network.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J. HAGEDORN, J.
(concurring in part; dissenting in part).
[¶1] Jeffrey C. Denny appeals from an order
denying his motion pursuant to Wis. Stat. § 974.07
(2013-14) 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.
of Christopher Mohr's Body and Other
[¶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.
[¶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
[¶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
[¶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.
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
[¶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.
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.
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 ...