ARGUMENT: October 26, 2016
Court of Ozaukee County, L.C. No. 1982CF425 Joseph W. Voiland
OF A DECISION OF THE COURT OF APPEALS
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
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
ANNETTE KINGSLAND ZIEGLER, J.
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 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) and remanded the
case for forensic DNA testing at private or public expense.
Denny, 368 Wis.2d 363, ¶¶l, 64.
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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
From November 9 to November 15, 1982, Denny and Kent were
tried jointly before a jury. At trial, the State presented its
case against Denny and Kent in the following
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
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.
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.
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.
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.
Samples of the defendants' head and pubic hair taken
directly from the defendants were also introduced.
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.
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.
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.
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.
"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."
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."
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
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."
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."
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
"[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
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."
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
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."
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
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[.]
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."
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
[H]e . . . threw 'them in.
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
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.
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.
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."
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.
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."
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."
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.
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.
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
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.
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
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.
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) .
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. 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.
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. On April 21, 2016, the State filed a
petition for review in this court. On June 15, 2016, this
court granted the petition.
STANDARD OF REVIEW
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
[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
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.
Wisconsin Stat. § 974.07
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.
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). 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.
(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
Wis. Stat. § 974.07(2)(a)-(c).
Next, sub. (6) enables "the movant" to obtain
access to certain information and evidence possessed by
"the district attorney, " and vice
(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) .
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) .
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.
The two sets of requirements differ in two crucial respects.
First, a court "may order" testing if, among other
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
§ 974.07 (7) (a)2.
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.
Subsections (9) and (10) govern disposition of the case
following the circuit court's decision under sub. (7) and
any testing that occurs. 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. §
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.
Finally, sub. (12) pertains to payment of the costs of
testing. 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)
Having set forth the relevant provisions of Wis.Stat. §
974.07, we now discuss Moran.
State v. Moran
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 . . . ...