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State v. Denny

Supreme Court of Wisconsin

February 28, 2017

State of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Jeffrey C. Denny, Defendant-Appellant.

          ORAL ARGUMENT: October 26, 2016

         Circuit Court of Ozaukee County, L.C. No. 1982CF425 Joseph W. Voiland Judge

         REVIEW OF A DECISION OF THE COURT OF APPEALS

          For the plaintiff-respondent-petitioner the cause was argued by Misha Tseytlin, solicitor general, with whom on the brief was Daniel P Lennington, deputy solicitor general, Donald V. Latorraca, assistant attorney general, and Brad D. Schimel attorney general.

          For the defendant-appellant, there was a brief and oral argument by Keith A. Findley, and Wisconsin Innocence Project, with whom on the brief was Steven D. Gunder, assistant state public defender.

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶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');">878 N.W.2d 679, which reversed the Ozaukee County circuit court's[1] order denying Jeffrey C. Denny's ("Denny") postconviction motion for forensic deoxyribonucleic acid ("DNA") testing of evidence pursuant to Wis.Stat. § 974.07 (2013-14)[2] and remanded the case for forensic DNA testing at private or public expense. Denny, 368 Wis.2d 363, ¶¶l, 64.

         ¶2 On November 15, 1982, a jury found Denny and his brother Kent guilty of the murder of Christopher Mohr ("Mohr"). Denny was sentenced to life imprisonment. Over three decades later, in 2014, Denny filed a motion claiming innocence and requesting forensic DNA testing of evidence taken from the scene of Mohr's murder. Denny asked the circuit court to order that the testing occur at public expense, or, in the alternative, at Denny's own expense.

         ¶3 Whether, and the conditions under which, a court will order such postconviction forensic DNA testing are questions governed by Wis.Stat. § 974.07 ("Motion for postconviction deoxyribonucleic acid testing of certain evidence."). Interpreting this statute, the circuit court below concluded that Denny was not entitled to testing either at public or at private expense. The court of appeals disagreed. We are asked to determine whether Denny has met the statutory requirements for forensic DNA testing of the evidence he has identified.

         ¶4 We conclude that the circuit court did not err in denying Denny's postconviction motion for forensic DNA testing of certain evidence. Consequently, we reverse the decision of the court of appeals.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         ¶5 On January 26, 1982, police discovered Mohr's body in a room on the second floor of a house in Grafton, Wisconsin. On June 25, 1982, a criminal complaint was filed against Denny in Ozaukee County circuit court charging him as party to the crime of the first-degree murder of Mohr, contrary to Wis.Stat. § 940.01 (1981-82) and Wis.Stat. § 939.05 (1981-82). Denny's brother Kent was also charged.

         ¶6 From November 9 to November 15, 1982, Denny and Kent were tried jointly before a jury.[3] At trial, the State presented its case against Denny and Kent in the following general[4] manner.

         ¶7 Jonathan Leatherman ("Leatherman") testified that on January 26, 1982, at around 9:30 a.m., he spoke to Mohr on the phone about traveling to Mohr's house to smoke marijuana. Around 10:45 or 10:50 a.m., Leatherman began walking to Mohr's house, arriving there minutes later. Leatherman entered the house, went upstairs, and upon opening the door to "[Mohr's] room" saw Mohr's body on the floor. Leatherman called the "rescue squad" and reported a suicide. He then returned to Mohr's room to retrieve a quarter pound of marijuana which he suspected was in Mohr's room in order to "save [Mohr] from trouble, " but ultimately went outside to wait for the police empty-handed.

         ¶8 Later that day, Leatherman received a call from Kent. When asked when he had last spoken to Kent prior to that call, Leatherman replied, "I'm not sure, maybe a week, I'm not sure, maybe more." Kent asked Leatherman if he "knew to [sic] get any pot" and after Leatherman said he did not, Kent "said what about [Mohr], " and Leatherman informed Kent that Mohr had killed himself. Kent asked Leatherman if he wanted to "stop over" later that day, and Leatherman did so. At Kent's house, Leatherman had a conversation with Kent and Denny about Leatherman's experiences that day.

         ¶9 Gary Helm ("Helm") testified that he worked for the Grafton Street Department and was also part of the Grafton rescue squad. On January 26, 1982, at around 10:55 a.m. to 11:00 a.m., Helm was "picking up garbage" as part of his employment when he received notification of an attempted suicide. Helm traveled to the reported address where he met a police officer outside of Mohr's house. There, "a fella in front of the house . . . was yelling help him, please help him, I don't believe he did it." According to Helm's testimony, Helm and the officer went inside and up to Mohr's room. Helm tried but failed to obtain a pulse reading.

         ¶10 Daniel Palkovic ("Officer Palkovic") of the Grafton Police Department testified that he was dispatched to Mohr's residence on January 26, 1982, and that he accompanied Helm to Mohr's room. Officer Palkovic described a number of items retrieved from the scene of Mohr's murder, from areas nearby, or from Mohr's body at the autopsy. These items were introduced as exhibits at trial and included: (1) a jacket found in Mohr's room which appeared to have blood on it; (2) a torn shirt removed from Mohr which had blood on it; (3) jeans removed from Mohr which had blood on them; (4) socks removed from Mohr which had blood on them; (5) "under briefs" removed from Mohr which had blood on them; (6) a hat found in Mohr's room which had blood on it; (7) gloves found in Mohr's room; (8) a yellow towel taken from the hallway directly outside of Mohr's room which had blood on it; (9) samples of Mohr's head and pubic hair; (10) hair that had been "clenched in . . . Mohr's left hand"; (11) hair located between the fingers of Mohr's right hand, which was "closed somewhat, but . . . not fully clenched"; (12) hair stuck to Mohr's chin and neck by dried blood; (13) loose hair "taken from [Mohr's] mouth area" which "[a]ppeared to be" "stuck" there by "a combination of dried blood and possibly saliva"; (14) hair at least apparently stuck to Mohr's pants by dried blood; (15) hair, "a possible seed of some type, " and some glass fragments stuck to Mohr's skin and shirt in his "upper chest area"; (16) the "top or main portion of a bong pipe" found in Mohr's room which "appear[ed] to have been shattered or broken on one end" and which appeared to have blood on its "tube"; (17) the "base portion" of the bong pipe, which was found in Mohr's room; (18) the "bowl portion" of the bong pipe, which was found in Mohr's room and which had blood on it; (19) "fragments of . . . maroon plexiglass material, similar to the top portion of the bong pipe, " found "scattered about" Mohr's room in "[r]oughly the immediate area of [Mohr's] body itself" and which had blood on them; (20) "pieces of the maroon plexiglass portion of the bong pipe and ... a metallic [-] type of rod which was found to be located on the floor under [Mohr] after his body was moved" which had blood on them; (21) a "rubber-type of grommet" used with the bong pipe and found "just inside of the doorway leading into" Mohr's room; (22) a "glass drinking container" which was found on the floor next to an ice cube, had blood on it, and had "a small amount of orange liquid at the bottom of the glass"; (23) ice cubes (by the time of trial, water) collected from various areas of Mohr's room and observed around 11:30 a.m.; and (24) a phone directory found in the hallway on the second floor of Mohr's house with a "footwear impression on the cover" which appeared to be caused at least in part by blood. On cross-examination, Officer Palkovic conceded that the "shoe bottom pattern" imprinted on the phone book was a common one.

         ¶11 There were additional items discussed during Officer Palkovic's testimony which were not, ultimately, received by the court: (1) a yellow stool which was taken from a room of Mohr's house different from the room Mohr was found in and which appeared to have blood on it; (2) a "small water faucet-type screen" stuck to Mohr's shirt by dried blood, similar to other screens found in Mohr's room; (3) "several screens, safety pins and some screws and some thumb tacks" which "gave the appearance, were attached to the back of the victim's neck and head area, the hair area itself" by "blood which had coagulated"; (4) certain "fragments or pieces of the plexiglass portion of the bong pipe" found "on the floor of . . . [Mohr's] bedroom alongside" Mohr's body; (5) scissors found in Mohr's room; (6) a red disposable lighter found in Mohr's room under Mohr's right shoulder which appeared to have blood on it; and (7) blood samples removed from an overturned "metal lawn chair" found in Mohr's room.

         ¶12 Samples of the defendants' head and pubic hair taken directly from the defendants were also introduced.

         ¶13 Ozaukee County Deputy Coroner Ruth Heiser testified that on January 26, 1982, she was dispatched to Mohr's house and that she pronounced Mohr dead at 12:05 p.m. that day.

         ¶14 Dr. Hellen Young ("Dr. Young"), who performed an autopsy of Mohr, discussed the nature and extent of the wounds on Mohr's body and her opinion of the cause of Mohr's death. According to Dr. Young, Mohr's death was caused by "massive hemorrhage due to multiple incised wounds." Dr. Young described over 50 wounds on Mohr's body and opined that at least some of these wounds were caused by a knife. One wound in particular was a "good-sized gaping wound" in Mohr's "back directly over the area of where the heart would be reflected" requiring "at least two to three" "gashes." Mohr's heart, however, was "intact within [his] body." Mohr had a "large gaping wound" on his throat. He had two wounds in his stomach "made by one stab wound" which Mohr would have sustained "early in the series of wounds that were received." Dr. Young further discussed injuries to Mohr's head caused by "blunt trauma" and agreed that at least a portion of the bong pipe introduced into evidence could have produced such injuries.

         ¶15 The "meat and potatoes of the case, " in the State's words, were the collection of witnesses called by the State who testified as to numerous statements made by Denny and Kent about Mohr's murder.

         ¶16 Trent Denny ("Trent"), Denny and Kent's brother, testified that "two, three days" after Trent was released from the Ozaukee County Jail on February 21, 1982, Kent told Trent that Kent had killed Mohr. On a separate occasion ("I think it was the day after I talked to Kent, " according to Trent), Trent asked Kent "if he really did it, " and Kent replied "yes." Two or three days after that, Trent asked Denny "if it was true." Denny "asked [Trent] why did Kent tell[?]" After Trent told Denny that "Kent told [Trent] he killed" Mohr, Denny "looked at [Trent] like he was mad." Trent offered his assistance to Denny. Denny told Trent that Denny and Kent had stabbed Mohr. Specifically, Kent asked Mohr "how he felt, " then stabbed Mohr once in the stomach, then asked Mohr "how he felt now, " then gave the knife to Denny, after which Denny stabbed Mohr. Mohr "was coming after [Denny] while [Denny] was stabbing him." Kent "hit [Mohr] over the head with the bong." On yet another occasion, Trent again asked Kent "if it was true, " and Kent affirmed that it was.

         ¶17 "Maybe two, three" weeks after Trent spoke with Denny, Trent had a conversation with Kent and Denny. They told Trent "we had to get rid of the clothes." That night, Kent, Trent, and Lori Jacque ("Jacque") drove to a cemetery. Kent got out of the car and went to the cemetery. Five minutes later, he returned carrying a paper bag and the three drove away. Kent "said something that there was blood on the clothes, " and "asked [Trent and Jacque] if [they] could smell it." At some point while in the car that night, Kent pulled a shirt out of the bag and Trent saw a "stain" on it. On cross-examination, Trent agreed that he did not "really know what was in [the] bag, " and instead "just assumed it was the clothes." Eventually the three drove to Jacque's house, Jacque retrieved a plastic bag, and Kent put the paper bag into the plastic bag. The three then drove to a dump in either "Port or Fredonia, " and Kent "shot the bag into the dump."

         ¶18 On another date, behind Trent's house, Denny showed Trent what Denny said was a knife. Trent saw the handle, but not the blade. Finally, a separate time Trent asked Kent and Denny together "if they did it, " and "[t]hey told [Trent] yes."

         ¶19 Jacque testified that on February 20, 1982, while at a party in "the Denny room" (referred to later as Kent's bedroom), Kent "looked very upset" and told Jacque that he had killed Mohr. Later that night, Kent indicated to Jacque that " [h] e wanted to go get the clothing back from the graveyard." "About a week after that, " Kent again spoke with Jacque about the clothing. A "couple weeks after" the initial conversation, according to Jacque, Jacque, Trent, and Kent drove to a "graveyard." Kent exited the car and came back "with a bundle of clothes under his arm." Back in the car, Kent held up a shirt. The three stopped at Jacque's house, where they retrieved a paper bag. They then drove to the town dump in the "Town of Port." Kent had placed the clothing in the bag. He exited the car and walked to the dump. Jacque and Trent "drove down the road and turned around and came back and picked him up." That night, Kent said that he was "glad to get rid of the clothes."

         ¶20 On another date, Jacque was in a car with Kent and Denny. She heard Kent and Denny have a conversation about how "they forgot the tennis shoes." On another date, "Kent had said that he wanted to turn himself in" because "[i]t was just getting to be too much." Kent was crying at the time. On another date, in Kent's room, Denny "said something about a scratch on his leg, " namely "[t]hat that was from where [Mohr] had scratched him." Jacque did not actually see any scratches. Finally, when asked "Were there any other conversations that you remember?" Jacque replied, "Well, several times there was things said about it." However, Jacque did not "remember any of those in any specifics besides what [she had] already stated."

         ¶21 On cross-examination, Jacque testified that on separate occasions Kent had told her, with regard to the reason for Mohr's murder, that "somebody put a gun to his head" and that "he did it to prove it to his brother." Jacque was also asked "on another occasion did he do it to say it was because it was either him or [Mohr]?", and she replied "Yes, I think I heard something like that done."

         ¶22 Diane Hansen ("Hansen") testified that "approximately a week after" Mohr's death, at the Sundance Tavern, Kent told Hansen that "he killed [Mohr], " and then, after Hansen started crying, that "he was only kidding." On cross-examination Hansen agreed that Kent also said "do you think I'd do something like that?" A "[c]ouple weeks later, " Kent told Hansen that he went to Mohr's house, that Mohr was "standin' by the fish tank and [Kent] stabbed" Mohr in the stomach, then left the room and "[g]ot sick."

         ¶23 "[A] long time after that, " Hansen asked Kent "if there was any truth to the rumor that [Mohr's] heart was cut out, " and Kent told Hansen "[y]es." Hansen also testified, in response to the question of whether Kent had, at any time, told Hansen "that he saw anyone walking up the street as he got out of [Mohr's] house, " that "[Kent] said he thought he saw . . . Leatherman, " specifically "[o]n a road behind a garbage truck." On cross-examination, Hansen testified that in her "very first" conversation with Kent about Mohr's death, Kent told Hansen that Leatherman "had found [Mohr] and [Mohr] was dead, " and that "it was an accidental death." On re-direct, Hansen explained that the conversation was the "same day" as Mohr's death.

         ¶24 Lori Ann Jastor Commons ("Commons") testified that, while at a party at Kent's house the night before Trent "got out of jail, " she heard Kent say: [Mohr] was at his fish tank and Kent went up to him and stabbed him and asked him how he felt, and . . . [Mohr] replied that he felt all right and that he proceeded to stab him one more time and he had gotten sick and run into the bathroom and [Denny] had taken over. At that point Denny "just stabbed him." Commons clarified that Kent told Commons that he stabbed Mohr "[i]n his side."

         ¶25 Commons also discussed a conversation she heard that occurred "approximately three weeks after the murder" at the "Sundance Bar in Port":

[Kent] was talking to a friend of mine, . . . Hansen, when I came out of the bathroom, and [Hansen] was crying and I went up to her to see what was wrong and Kent was talking to her and said that he had to do it, otherwise it would have been him.

         ¶26 Robin Doyle ("Doyle") testified that she asked Kent "how, out of curiosity if he had killed" Mohr. Kent said "[y]es he did." Kent also told Doyle that "he had told everybody, that he ever told, something different so that the stories wouldn't match up."

         ¶27 Kent's coworker, Carl Winker ("Winker"), testified that at the end of April 1982 Kent told him that he "knew the guy" who killed, in the words of the State, "a boy in Grafton." Kent told Winker that "the guy started stabbin' him and he just kept doin' it, " that "the guy" "liked it, got into it, " and that "the guy's heart was cut out." Kent also told Winker that the killing "was for drug money." Some time later, Kent told Winker that he would not be coming to work anymore. When asked why, Kent stated it was because he was going to jail. When asked why he was going to jail, Kent said "because of that guy that got killed." Winker asked Kent, "[W]hy, do you know something about it?" Kent replied, "[N]o, I'm the guy that did it." On another occasion, Kent told Winker "there was a coat and a knife and a dump in Sheboygan and the coat was full of blood."

         ¶28 Steven Hansen ("Steve H.") testified that in early March 1982 Denny told Steve H. that "[Denny] and Kent had killed" Mohr. Denny told Steve H. that Denny and Kent went to Mohr's bedroom, that Kent "pulled out a knife and . . . proceeded to stab" Mohr. Steve H. also testified that he remembered telling Officer Palkovic that Denny told Steve H. the following:

Mohr was facing the window when the Denny boys were in the bedroom and Kent pulled a knife out and looked at [Mohr], and looked at . . . Denny and then . . . Denny nodded his head and Kent started stabbing [Mohr] in the stomach[.]
Mohr would not fall, but subsequently he did fall to the floor and . . . [Denny] kicked . . . Mohr[.]
[Denny] and Kent . . . walked out of the house and they didn't think anyone saw them[.]
[Either Kent or Denny told Steve H. that] Kent and [Denny] might have seen . . . Leatherman when they were leaving the . . . Mohr residence the day of the murder[.][5]

         ¶29 Patricia Robran ("Robran") testified that in either March or April 1982 she was present in the basement of her parents' house with Denny. Denny was crying. Eventually Denny told Robran "that him and . . . Kent were the ones who killed that one boy in Grafton, " that "him and Kent stabbed him and they hit him" with a bong, that "there was no reason for it and alls I got was a quarter pound [of marijuana] out of it." Denny informed Robran that "Kent stabbed [Mohr] first and he handed [Denny] the knife and Kent told him to continue what he was doing until he got back, so [Denny] did, and he didn't remember if he did it five or ten or fifteen times." Robran added that Denny told her that before the stabbing occurred, "Kent had asked [Mohr] how he was feeling, he said he was feeling fine, and then Kent stabbed him and asked him how he'd feel now. They just kept doin' it."

         ¶30 Daniel Johansen ("Johansen"), an inmate at the Ozaukee County Jail, testified that Denny told him about Mohr's murder. Johansen stated that Denny told him:

[Denny] and Kent went over to . . . Mohr's house, and I'm not sure, but it was either the, that [Mohr] owed Kent money or they were going to pick up some pot, and [Denny] . . . went out of the room and that [Mohr] and Kent were in and he said all of a sudden he heard how does this feel, and he came back in the room and Kent had stabbed him in the stomach.
[T]hen he said that Kent just started stabbing him and then he went to the bathroom and looked in the mirror at himself because he couldn't believe it.
[Denny] . . . hit [Mohr] over the head with a bong and kicked him a couple times.
[Denny] said the shoes he, he took 'em over to some sewage plant in here, in Port or some sewage plant around here.
[H]e . . . threw 'them in.

         ¶31 Tod Trierweiler ("Trierweiler") testified that in late March of 1982 he was in the Denny house with Russ Schram ("Schram"), Tammy Whitaker ("Whitaker"), Kent, and Denny. Trierweiler left with Denny in a car.[6] They stopped at a gas station in Grafton. Denny asked for and obtained the keys to Trierweiler's car and put a brown bag "rolled about half-way" into the trunk of the car. Trierweiler drove Denny to the Sundance Tavern, then went to his girlfriend Cindy Otto's ("Otto") house, where he told Otto "about the keys." Later, Trierweiler found a bag that "looked like it was half-way down and it was rolled up" in his car and opened it. Inside were a pair of tennis shoes and a pair of brown loafers. Trierweiler wore the tennis shoes for about three months. As to the loafers, Trierweiler testified, "[M]y girlfriend's brother came up from Texas with no pairs of shoes . . . and I guess he took 'em." Eventually Trierweiler gave the tennis shoes to Sergeant Fred Goetz ("Sergeant Goetz"), who was "looking for the shoes." Trierweiler stated on cross-examination that when he retrieved the tennis shoes from his car he examined them and there was no blood on them. For his part, Sergeant Goetz testified as to receiving the shoes from Trierweiler, and as to the chain of custody following his receipt of the shoes. Sergeant Goetz agreed that Trierweiler had told him that "he could not state for certain if [the shoes] were the ones that . . . Denny had placed in his trunk." These shoes were admitted into evidence.

         ¶32 Otto testified that she and Trierweiler had a conversation about the keys, that she and Trierweiler discovered a "brown grocery bag" which contained two pairs of shoes in the trunk of Trierweiler's car, that Trierweiler wore the tennis shoes, and that her brother took the second pair of shoes, which she described as "suede tied shoes." Otto also discussed an occasion when Denny asked Trierweiler "if he could go back to look at [Trierweiler' s] house to look in or at [Trierweiler' s] car." Trierweiler refused at the time because he was late to drop Otto off at home. Otto also discussed how Trierweiler came to give the tennis shoes to Sergeant Goetz.

         ¶33 Whitaker testified that she was at a party in late March 1982 with Kent, Denny, Schram and Trierweiler at the Denny house. At one point Schram, Trierweiler, and Whitaker went outside. Schram "put the shoes in, on the bag, I should say, into the back seat [sic]" of a car and told Whitaker "those were the murder shoes." Denny then exited the house and the four went to a gas station. At the gas station, Schram and Denny "put the bag in the trunk." Whitaker described the bag as a "rolled, " "brown paper bag."

         ¶34 Whitaker further explained that she was Denny's girlfriend of about eight months and testified to two accounts of Mohr's murder Denny had related to her, though she prefaced her testimony with the statement that her account was "a rough estimate of what [she] remember[ed]." First, Denny told Whitaker "[t]hat . . . Leatherman and [Denny] went over to . . . Mohr's house and [Leatherman] got in a fight with [Mohr] and started stabbing him, and then . . . [Leatherman] asked [Denny] to help 'im so [Denny] hit him." Second, Denny told Whitaker "[t]hat him and Kent went over to . . . Mohr's house and then they went up there . . . [and] Kent started stabbin' him and then [Denny] went into the bathroom, looked in the mirror and said my God, what' d I get myself into." Denny also told Whitaker that "they got" a quarter pound of "[p]ot" out of the murder.

         ¶35 Schram testified to events that occurred at a party in late March of 1982 at the Denny house. Schram, Trierweiler, Whitaker, Kent, and Denny were at the party. Schram stated, "We were gonna leave" and that Denny "took a bag out of the closet and took it with us." Schram described the bag as a "[r]egular brown paper bag." Denny put the bag in the back seat of a car. At some time before Denny placed the bag in the car, he told Schram that the bag contained "[m]urder shoes." Schram testified that although he did not "exactly" remember who brought the shoes out to the car, he was "pretty sure it was" Denny. Schram continued that he and at least some of the others drove to a gas station, where Denny asked Trierweiler for the keys to the trunk of his car. Trierweiler gave Denny the keys and Denny "put the bag in there." The bag was "rolled up so you could carry it with a handle like." The parties eventually "dropped [Denny] off at a bar." Afterwards, Denny contacted Schram a "couple times, saying to get it out of the car." Schram told Denny that "he knew where [Trierweiler] lived and that he could get it from him anytime."

         ¶36 On another occasion, Schram, Kent, Denny, Whitaker, and Jacque were together in Grafton. Denny told Schram, "you'd be surprised how long it took a person to die." Another time "between March and April, " according to Schram, Denny "was mad at Trent and . . . said that he'd take him out and put an arrow through him" because of "something about testifying." Additionally, on September 1, Schram received a call from Denny "from jail." Denny told Schram "[t]o not say anything about the shoes because [Schram would] be an accessory" to "[m]urder."

         ¶37 The State called Jeffrey Nilsson ("Nilsson"), who previously worked for the Wisconsin State Crime Laboratory and who analyzed blood and hair from the crime scene. Certain of the blood tested came from an individual of the same international blood group to which Mohr belonged. Other testing produced inconclusive results or was not possible. Nilsson also examined "over two hundred hairs" and only two were inconsistent with the samples taken from Mohr when analyzed by "microscopic comparison." These two hairs were also not consistent with samples taken from Denny and Kent. The hairs were retrieved from a sterile sheet used to wrap Mohr's body and from Mohr's shirt. These hairs were admitted into evidence.

         ¶38 Arthur Varriale of the State Crime Lab testified that he examined the phone book found in Mohr's house and "was able to detect the presence of human blood stains upon" the book. He was not able to detect any blood on the shoes allegedly worn by Trierweiler. Charles Hannah ("Hannah") of the State Crime Lab, who compared the tread on one of the shoes allegedly recovered from Trierweiler to the impression on the phone book, also testified. Hannah explained that while the pattern on the bottom of the shoe was the same pattern as the incomplete impression on the phone book, he could not determine whether the shoe in fact made the impression.

         ¶39 Neither Kent nor Denny testified at trial. Denny's attorney did not call any witnesses to testify. Kent's attorney attempted to call several witnesses, but ultimately obtained meaningful testimony from only one: Gordon Denny ("Gordon"), the father of Kent, Trent, and Denny. Gordon testified that his sons had been competing with each other "all their lives"; that Trent and Kent had a poor relationship; that Kent was sometimes a practical joker, with some jokes being "quite elaborate"; and that Kent had "a habit of tabulation" or of "tell[ing] stories."

         ¶40 During closing arguments, the State pointed to, inter alia, the dozens of inculpatory statements allegedly made by Kent and Denny to various of the witnesses who had testified, the evidence relating to the alleged destruction of clothing, the episode in which Denny allegedly showed Trent the knife, and the evidence relating to the shoes allegedly worn by Trierweiler, including Hannah's opinion as to the similarity between the impression on the phone book and the pattern on one of those shoes. The attorneys for Kent and Denny, in turn, attacked the State's witnesses and the State's physical evidence on numerous grounds, arguing that the State had not met its burden of proving their clients guilty beyond a reasonable doubt. To take one example, Denny's attorney characterized some of the State's evidence as consisting of:

[S]tatements which in my view have been made by unreliable, incredible braggarts, liars, to equal[ly] unreliable persons, who in my view, are drug users, possibly alcoholics, certainly drunkards, people who, themselves admitted on that witness stand to being people who exaggerate, who lie, who make up stories, who had faulty memories, who had to have their recollections refreshed by police.

         ¶41 According to the record, on November 15, 1982, the jury departed the courtroom to deliberate at 4:56 p.m. At 10:49 p.m. the court reconvened and the jury's verdict was read. The jury found Denny (and Kent) guilty of first-degree murder. On November 16, 1982, the circuit court sentenced Denny to life imprisonment and a judgment of conviction was filed.

         ¶42 On April 14, 1983, Denny filed a motion for postconviction relief. On July 1, 1983, an order was filed denying that motion. On July 8, 1983, Denny filed a notice of appeal. On December 5, 1984, the court of appeals affirmed Denny's conviction. State v. Denny, No. 1983AP1311-CR, unpublished slip op. (Wis. Ct. App. Dec. 5, 1984) . On February 5, 1985, this court denied review of that appeal.

         ¶43 Since that time, Denny has unsuccessfully attempted to upset his conviction on a number of occasions. See Denny v. Gudmanson, 252 F.3d 896, 898-99 (7th Cir. 2001) .

         ¶44 On May 1, 2014, Denny filed a motion for postconviction forensic DNA testing under Wis.Stat. § 974.07. On August 4, 2014, he supplemented the motion.[7] Denny claimed he was innocent and sought to prove his innocence through forensic DNA testing of various items of evidence related to Mohr's murder and comparison of "any genetic profile found on the evidence with the DNA profiles of offenders in" state and federal DNA databanks. The items Denny sought to test included: (1) pieces of the bong pipe; (2) hair found on different areas of Mohr's body and on the sterile sheet used to wrap Mohr's body; (3) the yellow towel; (4) blood removed from the metal chair; (5) articles of Mohr's clothing; (6) the hat; (7) the gloves; (8) the lighter; (9) the screens; (10) the glass cup; (11) "facial breathing masks found at the scene, " "one of which appeared to be quite heavily soiled, " according to a supplemental report of the Grafton Police Department authored by Officer Palkovic; and (12) Mohr's hair. Denny theorized that the perpetrator's DNA was left at the crime scene, and that testing could produce several types of results supportive of Denny's claim: (1) "testing on many or most of the items [could] exclude[] [Denny]"; (2) "the same unknown third-party profile [could be] found on multiple items"; and (3) "DNA results on one or more items could exclude [Denny] and match a convicted offender in the state or federal databank." Denny claimed he was entitled to forensic DNA testing at public expense, or, in the alternative, at his own expense.

         ¶45 On January 2, 2015, the circuit court denied Denny's motion. On January 22, 2015, Denny filed a notice of appeal. On March 23, 2016, the court of appeals reversed the circuit court's order denying Denny's motion and remanded the case for forensic DNA testing at private or public expense. Denny, 368 Wis.2d 363, ¶¶l, 64. The court of appeals concluded that Denny's motion met the pertinent requirements of Wis.Stat. § 974.07. See id.[8] On April 21, 2016, the State filed a petition for review in this court. On June 15, 2016, this court granted the petition.

         II. STANDARD OF REVIEW

         ¶46 In this case we interpret and apply Wis.Stat. § 974.07. "The interpretation and application of a statute present questions of law that this court reviews de novo while benefitting from the analyses of the court of appeals and circuit court." State v. Alger, 2015 WI 3, ¶21, 360 Wis.2d 193, 858 N.W.2d 346 (citing State v. Ziegler, 2012 WI 73, ¶37, 342 Wis.2d 256, 816 N.W.2d 238).

[W]e have repeatedly held that statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." 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.

State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110 (citations omitted) (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis.2d 211, 612 N.W.2d 659) . The standard of review applicable to the circuit court's denial of Denny's motion will be discussed below.

         III. ANALYSIS

         ¶47 Our analysis proceeds in three basic parts. First, we provide an overview of the postconviction forensic DNA testing statute, Wis.Stat. § 974.07. Second, we discuss State v. Moran, 2005 WI 115, 284 Wis.2d 24, 700 N.W.2d 884, our 2005 decision interpreting portions of that statute, and overrule a part of Morgan's interpretation of Wis.Stat. § 974.07(6) . Finally, we examine whether the circuit court erred in denying Denny's postconviction motion for forensic DNA testing of certain evidence, and conclude that it did not.

         A. Wisconsin Stat. § 974.07

         ¶48 We begin with an overview of Wis.Stat. § 974.07, "Motion for postconviction deoxyribonucleic acid testing of certain evidence." Wis.Stat. § 974.07. The statute is composed of 13 subsections, but the core of the testing regime is contained in subsections (2), (6), (7), (9)-(10), and (12). Respectively, these subsections govern: making a motion for postconviction forensic DNA testing; the sharing of pertinent information and evidence between the district attorney and the movant; the circuit court's decision on the movant's motion; disposition of the case; and payment of the costs of testing.

         ¶49 The process begins in sub. (2) when one of a few types of persons entitled to do so-here, a person "convicted of a crime"-"make[s] a motion [in the proper court] for an order requiring forensic [DNA] testing of evidence". Wis.Stat. § 974.07(2).[9] Critical to an understanding of the entire statute is that the framework functions to dispose of a "motion . . . for an order." Id. (emphases added). Importantly, the evidence sought to be tested must meet three requirements under sub. (2):

(a) The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect.
(b) The evidence is in the actual or constructive possession of a government agency.
(c) The evidence has not previously been subjected to forensic [DNA] testing or, if the evidence has previously been 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.

Wis. Stat. § 974.07(2)(a)-(c).

         ¶50 Next, sub. (6) enables "the movant" to obtain access to certain information and evidence possessed by "the district attorney, " and vice versa.[10] Specifically:

(a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:
1. Findings based on testing of biological materials.
2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.
(b) Upon demand the movant or his or her attorney shall disclose to the district attorney whether biological material has been tested and shall make available to the district attorney the following material:
1. Findings based on testing of biological materials.
2. The movant's biological specimen.

Wis. Stat. § 974.07(6)(a)-(b). This information and material must be "relevant to the movant's claim at issue in the motion made under sub. (2)." § 974.07 (6) (d) . Subsection (6) also enables the court to "impose reasonable conditions on availability of material requested under pars, (a) 2. and (b) 2. in order to protect the integrity of the evidence." § 974.07 (6) (c) .

         ¶51 Subsection (7) governs the circuit court's decision on the movant's motion. Subsection (7) sets forth two means by which a movant may obtain forensic DNA testing under the statute: first, the court "shall order" testing if the four requirements of Wis.Stat. § 974.07(7) (a) "apply"; second, the court "may order" testing if the three requirements of § 974.07(7) (b) "apply." § 974 . 07 (7) (a)-(b) .

         ¶52 Both avenues to testing require that "[t]he evidence to be tested meets the conditions under sub. (2) (a) to (c)" (set forth above). Wis.Stat. § 974.07 (7) (a) 3., (b)2. Both also require that the "chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence." § 974.07 (7) (a)4., (b)3.

         ¶53 The two sets of requirements differ in two crucial respects. First, a court "may order" testing if, among other things:

It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under s. 971.17, or the disposition under ch. 938, would have been more favorable to the movant if the results of [DNA] testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.

Wis. Stat. § 974.07(7) (b)l. In contrast, a court "shall order" testing if, among other things:

It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory [DNA] testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.

§ 974.07 (7) (a)2.

         ¶54 Second, the mandatory testing scheme includes an additional requirement: "[t]he movant [must] claim[] that he or she is innocent of the offense at issue in the motion under sub. (2)." Wis.Stat. § 974.07(7)(a)1.

         ¶55 Subsections (9) and (10) govern disposition of the case following the circuit court's decision under sub. (7) and any testing that occurs.[11] Under sub. (9), if the court does not order forensic DNA testing, "or if the results of forensic [DNA] testing ordered under this section are not supportive of the movant's claim, the court shall determine the disposition of the evidence specified in the motion subject to" certain particulars. Wis.Stat. § 974.07(9)(a)-(b).

         ¶56 Under sub. (10)(a):

If the results of forensic [DNA] testing ordered under this section support the movant's claim, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. After the hearing, and based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice ....

Wis. Stat. § 974.07 (10) (a) . Subsection (10) (a) provides examples of orders the court may enter, such as "[a]n order granting the movant a new trial or fact-finding hearing." § 974.07(10) (a)2.

         ¶57 Finally, sub. (12) pertains to payment of the costs of testing.[12] First, "[t]he court may order a movant to pay the costs of any testing ordered by the court under this section if the court determines that the movant is not indigent." Wis.Stat. § 974.07(12) (a) . Indigency is defined via guidelines set forth in § 974.07 (12) (b) . Second, "[t]he state crime laboratories shall pay for testing ordered under this section and performed by a facility other than the state crime laboratories if the court does not order the movant to pay for the testing." § 974 . 07 (12) (c) .[13]

         ¶58 Having set forth the relevant provisions of Wis.Stat. § 974.07, we now discuss Moran.

         B. State v. Moran

         ¶59 As shown above, whether a movant may obtain postconviction forensic DNA testing of evidence depends on, among other things, whether one of the two "reasonably probable" formulations set forth in Wis.Stat. § 974.07(7) applies in the case. Before this court, Denny argues that "[i]t is reasonably probable that [he] would not have been prosecuted . . . [or] convicted" of his crime "if exculpatory [DNA] testing results had been available before the prosecution . . . ...


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