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State v. Scheidell

Court of Appeals of Wisconsin, District II

March 29, 2017

State of Wisconsin, Plaintiff-Appellant,
Daniel G. Scheidell, Defendant-Respondent.

         APPEAL from an order of the circuit court for Racine County No. 1995CF510: JOHN S. JUDE, Judge. Affirmed.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          REILLY, P.J.

         ¶1 This appeal addresses the ramifications of the discovery of "newly discovered evidence" that had it been known at the time of trial would have resulted in a different legal analysis than that applied by the circuit court. On October 11, 1995, Daniel G. Scheidell was convicted following a "he said, she said" jury trial of attempted first-degree sexual assault and armed burglary against J.D. Nineteen years later, Scheidell brought a motion for a new trial under W . S . § 974.06 (2015-16) with the assistance of the Wisconsin IS TAT [1] Innocence Project (WIP). The circuit court granted Scheidell's motion for a new trial based on newly discovered third-party perpetrator DNA evidence in the first-degree sexual assault of K.C., and the State appealed. We affirm the decision of the circuit court vacating Scheidell's judgment of conviction.


         ¶2 On May 20, 1995, at 4:45 a.m., J.D. was asleep when she heard the sound of a window blind falling onto her bathroom floor. State v. Scheidell, 227 Wis.2d 285, 289, 595 N.W.2d 661 (1999). J.D. investigated and found that the window, which she had left ajar for air, was now open approximately one foot. Id. She shut the window and went back to sleep. Id. Some thirty minutes later, J.D. awoke to a man, wearing a black knit ski mask and a jacket over his head and hair, straddling her waist. Id.

         ¶3 J.D. fought the knife-wielding man and "believed" she recognized the man as her upstairs neighbor, Scheidell. Id. at 289-90. A struggle continued, during which time J.D. would call out Scheidell's nickname, "Danno, " which caused the man to hesitate each time she said his name. Id. J.D. managed to expose the left side of the man's face from the bottom of the eye to the top of the lip and based on the man's "distinctive body and walk, " J.D. was certain the man was Scheidell. Id. at 290.

         ¶4 J.D. was able to kick the man away and retrieve a pistol from her nightstand. Id. J.D. told the man that she would shoot him if he did not leave, and the man left "having never uttered a word." Id.

         ¶5 J.D. promptly called the police. Id. Upon arrival, police found Scheidell coming down the stairs from his upper floor apartment, "and [he] appeared to have just woken up." Id. Scheidell gave a voluntary statement and allowed police to search his apartment, which turned up no evidence. Id. Police also searched the outside alley, finding no evidence. Police returned later with a search warrant and likewise found no evidence implicating Scheidell.

         ¶6 Scheidell was charged with one count of attempted first-degree sexual assault and one count of armed burglary, both while masked. Id. at 290. On the morning of trial, the circuit court heard arguments on Scheidell's intent to offer evidence of a similar crime that occurred five weeks after the attack on J.D. that Scheidell could not have committed as he was in jail. Id. The other crime took place approximately four blocks from J.D.'s residence and the offender was described by K.C., the victim, as a white male, thirty-five to forty, with a thin build, who had entered K.C.'s residence through a window at approximately 5:00 a.m. and was possibly wearing a mask, holding a knife, and had some type of hood on his head. Id. at 291. K.C. awoke to the man on top of her, who then sexually assaulted her. Id.

         ¶7 Scheidell brought a Denny[2] motion to the circuit court seeking admission of the similar crime that occurred to K.C., just weeks after and within blocks of J.D.'s apartment, perpetrated by one who wore a mask, was hooded, utilized a knife, entered through a window in early morning hours, and was of a similar appearance to Scheidell. Scheidell, 227 Wis.2d at 291. In Denny, we held that "as long as motive and opportunity have been shown and as long as there is also some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances, the evidence should be admissible." State v. Denny, 120 Wis.2d 614, 624, 357 N.W.2d 12');">357 N.W.2d 12 (1984). Denny established a "bright line standard" that required three factors to be present: motive, opportunity, and direct connection. Id. at 625.

         ¶8 The circuit court denied the Denny evidence, finding that there was no showing of any direct connection between the crimes. Scheidell, 227 Wis.2d at 291-92. Scheidell was found guilty by a jury on both charges and sentenced to twenty-five years in prison. Id. at 292.

         ¶9 Scheidell appealed the denial of the Denny/other acts evidence of K.C.'s attack, and our supreme court ultimately accepted review to address the appropriate test for the admissibility of other acts evidence committed by an unknown third party when offered by a defendant to prove identity. Scheidell, 227 Wis.2d at 293. The court summarized what Scheidell was attempting to do: "Scheidell attempted to admit evidence of a similar crime that was committed by an unknown third party while he was in jail awaiting trial on the pending matter to prove mistaken identity." Id. at 294.

         ¶10 The court found that the Denny "legitimate tendency" test does not apply where a defendant seeks to show that some unknown third party committed the charged crime based on evidence of another allegedly similar crime as "it would be virtually impossible for the defendant to satisfy the motive or the opportunity prongs of the legitimate tendency test of Denny." Scheidell, 227 Wis.2d at 296. Stated succinctly, a defendant cannot meet his or her burden under the legitimate tendency test when the alleged third party is unknown. Id. at 296-97. Denny "does not apply to this type of other acts evidence." Id. at 297.

         ¶11 In 2010, Scheidell applied to WIP, and in 2013 WIP obtained a DNA profile on the sexual assault kit from K.C.'s assault. The DNA profile returned as a match for Joseph R. Stephen, who is currently serving a prison sentence for a 1998 sexual assault in Racine. Scheidell filed a motion for a new trial under Wis.Stat. § 974.06 based on newly discovered DNA evidence and in the interest of justice. Scheidell now seeks to present evidence that a known perpetrator of the sexual assault against K.C. also committed the crimes that he was convicted of against J.D.

         ¶12 The circuit court held an evidentiary hearing on January 21, 2015. At the hearing, Laura Davis, a law student working with WIP, testified that she interviewed Stephen after the DNA results were returned. Davis stated that Stephen was living in Racine during the time of the 1995 assaults on J.D. and K.C. Stephen did not deny committing either attack, but admitted that he was abusing a lot of drugs during that time and noted that "DNA speaks for itself."[3] According to Davis, Stephen told her to "tell [Scheidell] I'm sorry." Dr. Nick Yackovich, an expert in sex-offender risk assessment, and Dr. Jeffrey Neuschatz, an expert on eyewitness identification, also testified. The late Judge John S. Jude issued an insightful and thorough decision and order granting Scheidell's motion for a new trial. The State appeals.


         ¶13 We begin with the understanding that a defendant has a constitutional right to present a defense. U.S. Const. amend. VI; Wis. Const. art. I, § 7; Chambers v. Mississippi, 410 U.S. 284, 294, 302-03 (1973); Scheidell, 227 Wis.2d at 293-94. Furthermore, "it is unconstitutional to refuse to allow a defendant to present a defense simply because the evidence against him is overwhelming." State v. Wilson, 2015 WI 48, ¶61, 362 Wis.2d 193, 864 N.W.2d 52');">864 N.W.2d 52. We acknowledge, however, that the right to present a defense is not absolute as it is subject to "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence, " including whether the evidence is relevant. Scheidell, 227 Wis.2d at 294 (citation omitted). As Judge Jude so aptly quoted, our system of law has a "twofold aim … that guilt shall not escape or innocence suffer" and that "justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). The question before this court is whether the circuit court properly granted Scheidell's request for a new trial based on newly discovered evidence. We conclude that it did.

         Standard of Review

         ¶14 A judgment of conviction is properly set aside and a new trial granted based on newly discovered evidence where the evidence is "sufficient to establish that the defendant's conviction resulted in a 'manifest injustice.'" State v. Avery, 2013 WI 13, ¶25, 345 Wis.2d 407, 826 N.W.2d 60');">826 N.W.2d 60 (citing State v. Plude, 2008 WI 58, ¶32, 310 Wis.2d 28, 750 N.W.2d 42). The defendant must establish by clear and convincing evidence that "(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative." Plude, 310 Wis.2d 28, ¶32 (citation omitted); State v. McCallum, 208 Wis.2d 463, 473, 561 N.W.2d 707 (1997). Whether to grant a motion for a new trial under the newly discovered evidence standard is a discretionary decision for the circuit court.[4] Plude, 310 Wis.2d 28, ¶31. "A circuit court erroneously exercises its discretion when it applies an incorrect legal standard to newly-discovered evidence." Id.

         ¶15 If a defendant is able to prove all four criteria, then the court must also determine "whether a reasonable probability exists that had the jury heard the newly discovered evidence, it would have had a reasonable doubt as to the defendant's guilt." Id., ¶32. "A reasonable probability of a different outcome exists if 'there is a reasonable probability that a jury, looking at both the [old evidence] and the [new evidence], would have a reasonable doubt as to the defendant's guilt.'" State v. Love, 2005 WI 116, ¶44, 284 Wis.2d 111, 700 N.W.2d 62 (alteration in original; citation omitted). This determination is a question of law that we review de novo. Plude, 310 Wis.2d 28, ¶33; State v. Vollbrecht, 2012 WI.App. 90, ...

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