State v. Jeffrey C. Denny

2017 WI 17

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP202-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Jeffrey C. Denny,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: February 28, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 26, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ozaukee
JUDGE: Joseph W. Voiland

JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: ROGGENSACK, C.J. concur and dissent (opinion
filed).
DISSENTED: ABRAHAMSON, J., dissents (Opinion filed).
BRADLEY, A. W. J. dissents, joined by
ABRAHAMSON, J. (Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

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.
 2017 WI 17
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP202-CR
(L.C. No. 1982CF425)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner,
FILED
v. FEB 28, 2017

Jeffrey C. Denny, Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 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, which reversed the
Ozaukee County circuit court's1 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, ¶¶1, 64.

1
The Honorable Joseph W. Voiland presided.
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
 No. 2015AP202-CR

¶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.
2
 No. 2015AP202-CR

§ 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 general4 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

3
The Honorable Warren A. Grady presided.
4
We provide the following account of the trial proceedings
because, as will become apparent, these details are relevant to
our evaluation of whether, in the words of the postconviction
forensic DNA testing statute, "[i]t is reasonably probable that
[Denny] would not have been prosecuted . . . [or] convicted" of
his crime "if exculpatory [DNA] testing results had been
available before the prosecution . . . [or] conviction." Wis.
Stat. § 974.07(7)(a)2.

This summary is not intended to provide a comprehensive
discussion of the testimony given at Denny's jury trial or of
the cross-examination of the witnesses discussed. The witnesses
are not presented in this section in the exact order in which
they testified at trial.

3
 No. 2015AP202-CR

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
4
 No. 2015AP202-CR

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
5
 No. 2015AP202-CR

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
6
 No. 2015AP202-CR

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
7
 No. 2015AP202-CR

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,
8
 No. 2015AP202-CR

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
9
 No. 2015AP202-CR

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."

10
 No. 2015AP202-CR

¶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,

11
 No. 2015AP202-CR

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

12
 No. 2015AP202-CR

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

13
 No. 2015AP202-CR

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
5
These statements were read to Steve H. by the State, and
Steve H. simply assented to having told them to Officer
Palkovic. On cross-examination, Steve H. agreed that he did not
"really remember how these statements which [the State] ha[d]
read to [him] got to Officer Palkovic or into his report."

14
 No. 2015AP202-CR

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

6
It is unclear from the testimony whether, in Trierweiler's
account, other individuals accompanied the two.

15
 No. 2015AP202-CR

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
16
 No. 2015AP202-CR

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
17
 No. 2015AP202-CR

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
18
 No. 2015AP202-CR

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

19
 No. 2015AP202-CR

a practical joker, with some jokes being "quite elaborate"; and

that Kent had "a habit of fabulation" 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.

20
 No. 2015AP202-CR

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

7
There appear to be related filings in the record, but
Denny directs us to these two.

21
 No. 2015AP202-CR

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, ¶¶1, 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
8
Judge Hagedorn concurred in part and dissented in part,
concluding that while Denny was entitled to testing at private
expense, the circuit court's determination regarding testing at
public expense should not be disturbed. State v. Denny, 2016 WI
App 27, ¶89, 368 Wis. 2d 363, 878 N.W.2d 679 (Hagedorn, J.,
concurring in part and dissenting in part).

22
 No. 2015AP202-CR

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

23
 No. 2015AP202-CR

decision interpreting portions of that statute, and overrule a

part of Moran'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).

9
Subsection (1) contains definitions. See Wis. Stat.
§ 974.07(1).

24
 No. 2015AP202-CR

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

10
Subsections (3) and (4) involve notice requirements aimed
at apprising the appropriate district attorney's office and the
victim of the motion proceedings and giving the district
attorney the chance to "respond" to the motion. See Wis. Stat.
§ 974.07(3)-(4).

Subsection (5) requires the district attorney, upon receipt
of the motion or notice from a court of the motion, to "take all
actions necessary to ensure that all biological material that
was collected in connection with the investigation or
prosecution of the case and that remains in the actual or
constructive custody of a government agency is preserved pending
completion of the proceedings under this section." Wis. Stat.
§ 974.07(5).

25
 No. 2015AP202-CR

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).

26
 No. 2015AP202-CR

¶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)1. 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.

27
 No. 2015AP202-CR

§ 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

11
Subsection (8) authorizes the court to "impose reasonable
conditions on any testing ordered under this section in order to
protect the integrity of the evidence and the testing process."
Wis. Stat. § 974.07(8). The subsection also discusses where
testing may take place. Id.

28
 No. 2015AP202-CR

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

12
Subsection (10)(b) exempts a court ordering a new trial
under (10)(a) from the necessity of "making the findings
specified in s. 805.15 (3)(a) and (b)." Wis. Stat.
§ 974.07(10)(b). Wisconsin Stat. § 805.15(3) relates to new
trials "ordered on the grounds of newly-discovered evidence."
Wis. Stat. § 805.15(3).

Subsection (11) requires a court to "refer the movant to
the state public defender for determination of indigency and
appointment of counsel under s. 977.05(4)(j)" under specified
circumstances. Wis. Stat. § 974.07(11).
13
The final subsection of the statute, sub. (13), explains
that "[a]n appeal may be taken from an order entered under this
section as from a final judgment." Wis. Stat. § 974.07(13).

29
 No. 2015AP202-CR

¶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 . . . [or]

conviction." § 974.07(7)(a)2.14 As we explain in the next

section, this contention fails.

¶60 But we must first discuss our decision in Moran

because Denny claims that under Moran he is entitled to forensic

DNA testing under Wis. Stat. § 974.07(6) even if

§ 974.07(7)(a)2. remains unmet. While we agree that Moran

supports this claim, we overrule this interpretation of

§ 974.07(6).

¶61 The movant in Moran——who had been convicted of crimes

relating to an incident during which he allegedly injured two
individuals with a knife——sought postconviction forensic DNA

testing of certain blood samples pursuant to Wis. Stat.

§ 974.07. Moran, 284 Wis. 2d 24, ¶¶5-20, 22-24. Before

assessing the merits of the case, we explained:

In their briefs, the parties focused our
attention almost exclusively on § 974.07(7),
14
Denny does not develop an argument suggesting that
testing under Wis. Stat. § 974.07(7)(b)1. is appropriate. We do
not address application of that provision.

30
 No. 2015AP202-CR

pertaining to court-ordered DNA testing. However, at
oral argument on April 12, 2005, [defense] counsel
directed our attention to § 974.07(6), under which a
movant may request certain biological material from
the district attorney. We requested supplemental
briefs from both parties regarding the impact of [the
movant's] argument under § 974.07(6).
Id., ¶25. Proceeding to the interpretation of the statute, we

concluded that § 974.07(6) provided the movant not only access

to "[p]hysical 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,"

§ 974.07(6)(a)2., but also "the right to test the sought-after

evidence containing biological material" at his own expense,

assuming other statutory conditions were met. Moran, 284

Wis. 2d 24, ¶¶43, 57.

¶62 We did "acknowledge the plausibility of the position

that all motions for testing, as opposed to inspection, should

proceed under Wis. Stat. § [974].07(7)." Id., ¶49. But we

rejected this interpretation. In our view, "[s]ubsection (6)

allows the movant access to the test results and/or material

under some circumstances, but the movant must decide whether to

test the material and must pay for the testing himself.

Subsection (7), on the other hand, pertains to court-ordered

testing at the State's expense." Id., ¶55. We thus drew a

distinction between testing at private expense under Wis. Stat.

§ 974.07(6) and testing at public expense under § 974.07(7).

See id., ¶57 ("Moran must conduct any testing of the evidence at

his own expense. If a movant seeks DNA testing at public
expense, the movant must proceed under § 974.07(7)(a) or (b),

31
 No. 2015AP202-CR

and satisfy the heightened requirements in subsection (7).");

id., ¶56 ("We are unable to discern from the plain language of

§ 974.07 a clear legislative intent to block testing demanded by

a person willing and able to pay until that person satisfies the

requirements for publicly funded DNA testing.").

¶63 Today we conclude that, for several reasons, this

interpretation constitutes an error which we must now correct.15

¶64 To begin with, Wis. Stat. § 974.07(6) says nothing

about allowing the movant to conduct forensic DNA testing of

evidence. See § 974.07(6). Subsection (6)(a) states only that

the district attorney must "make available" the specified

physical evidence. § 974.07(6)(a). It does not authorize the

movant to send away the evidence for testing. We understand

the argument that sub. (6) does not explicitly prohibit a movant

from testing evidence, either. But "[c]ontext" and "the

structure of the statute in which the operative language

appears" are "important to meaning." Kalal, 271 Wis. 2d 633,

¶46. "A statute's purpose . . . may be readily
apparent . . . from its context or the structure of the statute

as a coherent whole." Id., ¶49.

¶65 Review of the whole statute leads us to conclude that

the "textually [and] contextually manifest statutory purpose" of

15
Although the State did not raise this issue in its
petition for review, we exercise our discretion to address it
anyway. See, e.g., State v. Moran, 2005 WI 115, ¶¶29-31, 284
Wis. 2d 24, 700 N.W.2d 884 (citing Apex Elecs. Corp. v. Gee, 217
Wis. 2d 378, 384, 577 N.W.2d 23 (1998)).

32
 No. 2015AP202-CR

Wis. Stat. § 974.07 is for a movant to obtain "an order

requiring forensic [DNA] testing" of certain evidence.

§ 974.07(2). In fact, the subsection from which this language

is taken, sub. (2), is cited in subs. (3), (4), (5), (6), (7),

(9), and (11) of the statute. See § 974.07(3)-(7), (9), (11).

Subsection (2) is the linchpin of the testing regime.

Subsection (6) in particular contains a provision explaining

that sub. (6) "does not apply unless the information being

disclosed or the material being made available is relevant to

the movant's claim at issue in the motion made under sub. (2)

[for an order requiring forensic DNA testing]." § 974.07(6)(d).

Subsection (7) explains the conditions under which an order will

issue, and subsection (12) of the statute determines whether

testing occurring pursuant to this order will take place at

public or private expense. See § 974.07(7), (12). The "order"

continually referred to is undoubtedly the "order" discussed in

sub. (7). § 974.07(7)(a)-(b).

¶66 We find it unlikely that the legislature would set
forth detailed requirements regarding whether DNA testing may

occur (sub. (7)) and who will pay for that testing (sub. (12)),

only for a movant to bypass these provisions and obtain testing

at private expense using a subsection of the statute that does

not say a word about such testing. Further, allowing testing

under sub. (6) would require only the barest of showings. See

Moran, 284 Wis. 2d 24, ¶3. It is equally difficult to believe

that the statute is most properly read to permit convicted
offenders who are unable to meet the surmountable sub. (7)
33
 No. 2015AP202-CR

standard to engage in postconviction fishing expeditions in

attempts to cast doubt upon and upset those convictions.

¶67 Moran did not even discuss sub. (12). In Moran we

suggested that sub. (6) related to testing at private expense,

while sub. (7) related to testing at public expense. See id.,

¶¶55, 57. But review of the entirety of the statute makes clear

that sub. (12) governs whether a movant must pay for court-

ordered testing. Pursuant to sub. (12), a non-indigent movant

who prevails under sub. (7) may yet have to pay for the DNA

testing that results. See Wis. Stat. § 974.07(12). Moran's

interpretation of § 974.07(6) ignores sub. (12) entirely. While

it is possible to read § 974.07 as creating two systems for

testing at private expense (under subs. (6) and (12)) and one

system for testing at public expense (under sub. (12)), we do

not find this to be the most sensible interpretation of the

statute. Again, given that the legislature took such pains in

sub. (12) to explain how courts should determine who pays for

testing, it would be strange for the legislature to fail to
mention the costs of testing at all in sub. (6), even to explain

that the movant must fund such testing himself.

¶68 Other subsections of the statute also cast doubt on

Moran's interpretation of Wis. Stat. § 974.07(6). As explained,

in Moran we concluded that sub. (7), as opposed to sub. (6),

"pertain[s] to court-ordered DNA testing." Moran, 284

Wis. 2d 24, ¶25; see id., ¶55 ("Subsection (6) allows the movant

access to the test results and/or material under some
circumstances, but the movant must decide whether to test the
34
 No. 2015AP202-CR

material and must pay for the testing himself. Subsection (7),

on the other hand, pertains to court-ordered testing at the

State's expense."). Indeed, sub. (6) says nothing about court-

ordered testing. § 974.07(6). But subs. (9) and (10), which

govern disposition of the case following testing——including,

presumably, Moran's sub. (6) testing——speak solely in terms of

testing pursuant to court order. See § 974.07(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." (Emphasis added.)); § 974.07(9) ("If a court in which

a motion under sub. (2) is filed 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 the following: . . . ." (Emphases

added.)). The link between subs. (9) and (10) and sub. (7) is

evident, while no such link between subs. (9) and (10) and sub.
(6) appears in the text of the statute. Moran did not resolve

this inconsistency. See Moran, 284 Wis. 2d 24, ¶47 ("[I]f the

testing [at Moran's expense] is done, the circuit court will

determine whether or not the results 'support the movant's

claim.' Wis. Stat. § 974.07(9)-(10).").

¶69 "This court follows the doctrine of stare decisis

scrupulously because of our abiding respect for the rule of

law." State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863
N.W.2d 592 (quoting Johnson Controls, Inc. v. Employers Ins. of
35
 No. 2015AP202-CR

Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257);

Hilton v. South Carolina Public Railways Comm'n, 502 U.S. 197,

202 (1991) ("Time and time again, this Court has recognized that

'the doctrine of stare decisis is of fundamental importance to

the rule of law.'" (quoting Welch v. Texas Dep't of Highways and

Public Transp., 483 U.S. 468, 494 (1987) (plurality opinion))).

"[A]ny departure from the doctrine of stare decisis demands

special justification." Johnson Controls, 264 Wis. 2d 60, ¶94

(quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19,

653 N.W.2d 266). We conclude that such special justification is

present in the current case, and overrule Moran's interpretation

of Wis. Stat. § 974.07(6) as independently authorizing forensic

DNA testing at private expense under certain circumstances.

Moran, 284 Wis. 2d 24, ¶3.

¶70 For the reasons already explained, Moran's

interpretation of Wis. Stat. § 974.07(6) is simply "unsound in

principle." Johnson Controls, 264 Wis. 2d 60, ¶99. But the

error also is not a containable one; it renders the rest of the
statute incoherent in a manner we obviously did not contemplate

in Moran. The decision has thus "become detrimental to

coherence and consistency in the law." Id., ¶98. Moreover, in

Moran we did not attempt to undertake a comprehensive

examination of § 974.07; we did not analyze sub. (12) of that

statute. Reconsideration of the statute with the benefit of a

clear understanding of that subsection convinces us that our

interpretation of sub. (6) must be modified to take account of
sub. (12). Cf. Johnson Controls, 264 Wis. 2d 60, ¶98 (among the
36
 No. 2015AP202-CR

"criteria in Wisconsin for overturning prior cases" are whether

"changes or developments in the law have undermined the

rationale behind a decision" and whether "there is a need to

make a decision correspond to newly ascertained facts").16

16
Also material to our decision to overrule Moran's
understanding of the function of sub. (6) is the potential
effect of that case on the legislature's determinations
regarding the best way to protect the rights and interests of
crime victims in Wisconsin. Although postconviction forensic
DNA testing is important, and although a crime victim assuredly
has an interest in seeing that the true criminal offender in a
case is prosecuted, it is not difficult to imagine why such
testing might cause significant distress to victims of Wis.
Stat. § 974.07 movants and prevent these victims from obtaining
some amount of closure following the infliction of harm upon
them. Cf., e.g., State ex rel. Brown v. Bradley, 2003 WI 14,
¶25, 259 Wis. 2d 630, 658 N.W.2d 427 ("consider[ing] the
interests that the State, crime victims, and others have in the
finality of cases" and noting the possibility of "inequitable
results" due to "open[ing] up cases that have long been thought
by everyone, including crime victims, to have been final").

While not dispositive in the case at issue, we note that
the legislature appears to have had crime victims in mind when
enacting Wis. Stat. § 974.07. See § 974.07(4) (providing for
notification of the victim of the movant's crime). It
understandably needed to strike a balance between the rights and
interests of convicted offenders attempting to establish their
innocence and the rights and interests of crime victims, while
at the same time ensuring prosecution of the actual perpetrators
of crimes. Thus, although in some cases it is appropriate for
this court to acquiesce in an erroneous prior decision, see,
e.g., Kimble v. Marvel Entm't, LLC, 576 U.S. ___, 135 S. Ct.
2401, 2409 (2015) ("Respecting stare decisis means sticking to
some wrong decisions."), doing so here is especially troubling.
In essence, we would be purposefully perpetuating a much more
expansive postconviction forensic DNA testing regime than the
legislature saw fit to enact, to the possible detriment of
Wisconsin crime victims.

37
 No. 2015AP202-CR

¶71 Ultimately stare decisis is a "'principle of policy'

rather than 'an inexorable command.'" Hohn v. United States,

524 U.S. 236, 251 (1998) (quoting Payne v. Tennessee, 501 U.S.

808, 828 (1991)). Each suggestion that one of our cases must be

overturned must be scrutinized individually, and sometimes stare

decisis must yield to other important principles of policy.

This is one such occasion. We thus overrule Moran insofar as it

concluded that "the plain language of § 974.07(6) gives a movant

the right to conduct DNA testing of 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, if the movant meets several statutory

prerequisites." Moran, 284 Wis. 2d 24, ¶3 (emphasis omitted).

Henceforth, we adopt the interpretation we "acknowledge[d]" as

"plausib[le]" in Moran: that "all motions for

testing . . . should proceed under Wis. Stat. § [974].07(7)."

Id., ¶49. Wisconsin Stat. § 974.07(6) should be applied

according to its terms, allowing the district attorney and the
movant to share information and "make available" specified

material. See § 974.07(6)(a)-(b). Of course, § 974.07(6)

provides "the movant or his or her attorney" with the ability to

obtain "whether biological material has been tested,"

"[f]indings based on testing of biological materials," and

"[p]hysical 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," as long as

38
 No. 2015AP202-CR

the requirements of the statute are otherwise met.

§ 974.07(6)(a)1.-2.17

¶72 This opinion should not be read to denigrate the

importance of postconviction forensic DNA testing. "The advent

of DNA technology is one of the most significant scientific

advancements of our era," and "the utility of DNA identification

in the criminal justice system is already undisputed." Maryland

v. King, 569 U.S. ___, 133 S. Ct. 1958, 1966 (2013). Under Wis.

Stat. § 974.07, properly interpreted, convicted offenders can

obtain postconviction forensic DNA testing of evidence. This

opinion simply recognizes the existence of, and applies, the

limits that the legislature set on such testing.18

C. Whether the Circuit Court Erred in Denying
Denny's Postconviction Motion for Forensic
DNA Testing of Certain Evidence

17
For those who would argue that sub. (6) is of little
value because it only allows inspection and does not
independently allow for testing, the facts in the case at issue
demonstrate why inspection is useful. For example, in his
supplemental motion for postconviction forensic DNA testing,
Denny explained that after filing his initial motion, two law
students assisting him "reviewed the physical evidence on file
at the Ozaukee County Clerk of Courts" and "found additional
items with which the perpetrator likely came into contact that
were previously overlooked." Denny then supplemented his
initial request, "seek[ing] to have additional items subjected
to DNA testing." Thus, the ability to inspect allows one to
ascertain what, if any, testing should be sought.
18
We note also that, in some cases, the parties may
stipulate to testing. We deal here with a contested motion for
DNA testing.

39
 No. 2015AP202-CR

¶73 We now address the merits of Denny's postconviction

motion for forensic DNA testing. Although there are a number of

conditions that Denny must meet before a court may conclude he

is entitled to testing, see, e.g., Wis. Stat. § 974.07(2), we

find it appropriate to decide this case on the basis of

§ 974.07(7)(a)2. alone. Because this provision is fatal to

Denny's claim, we need not address whether he has satisfied

other portions of the statute. See, e.g., Maryland Arms Ltd.

P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786

N.W.2d 15 ("Typically, an appellate court should decide cases on

the narrowest possible grounds." (citing State v. Blalock, 150

Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989)).

¶74 In State v. Hudson, 2004 WI App 99, 273 Wis. 2d 707,

681 N.W.2d 316, decided before Moran, the court of appeals

addressed the proper standard of review to apply to the circuit

court's decision regarding whether a movant has satisfied Wis.

Stat. § 974.07(7)(a)2. See Hudson, 273 Wis. 2d 707, ¶¶13-16.

The court concluded that an erroneous exercise of discretion
standard should be used. Id., ¶16. In Moran the parties

briefed the question of the standard of review that this court

should apply in reviewing circuit court decisions pertaining to

§ 974.07(7)(a)2. and (b)1. The movant argued that a de novo

standard was appropriate for the former, and an erroneous

exercise of discretion standard was appropriate for the latter.

The State's position was somewhat more complicated. However,

Moran did not definitively settle the issue.

40
 No. 2015AP202-CR

¶75 Here, the parties barely addressed the standard of

review applicable to Wis. Stat. § 974.07(a)2., although the

State suggests that a deferential approach is appropriate. We

need not decide this issue without adequate briefing, because

Denny's claim fails whether we review the circuit court's

conclusions under a deferential standard or de novo.

¶76 The question before this court is whether "[i]t is

reasonably probable that [Denny] would not have been prosecuted

[or] convicted" of his crime "if exculpatory [DNA] testing

results had been available before the prosecution [or]

conviction." Wis. Stat. § 974.07(7)(a)2. The State does not

dispute that we are to assume for purposes of this analysis that

if DNA testing were to occur, the results would be

"exculpatory." Denny argues that "[t]hree types of DNA test

results would create a reasonable probability of a different

result: DNA that matches a convicted offender; DNA that excludes

Denny and Kent on all items; or DNA on multiple items matching

the same unknown third party."19
¶77 Like the circuit court, we are convinced that Wis.

Stat. § 974.07(7)(a)2. has not been met. The evidence

19
Whether we are bound to consider each of Denny's
hypothetical sets of test results exactly as he has presented
them is not settled. For example, the State does not
necessarily concede that "exculpatory" means that the DNA would
"match[] a convicted offender." Regardless, we will assume
without definitively resolving the issue that Denny's
interpretation of the statute is valid given that it does not
change the result in this case.

41
 No. 2015AP202-CR

incriminating Denny was, to put it mildly, extensive. Testimony

indicated that Denny confessed, made inculpatory statements to,

and took inculpatory actions in front of, multiple witnesses.

"[T]he statements were . . . made at different times and places,

in some instances corroborated by physical evidence." Denny v.

Gudmanson, 252 F.3d at 905.20

20
In 1987 Denny attempted to obtain a new trial "arguing
that the admission of Kent['s] . . . confessions violated his
rights under the Confrontation Clause of the Sixth Amendment as
interpreted in the Supreme Court's decision of" Cruz v. New
York, 481 U.S. 186 (1987). Denny v. Gudmanson, 252 F.3d 896,
899 (7th Cir. 2001). The court of appeals affirmed the circuit
court order denying Denny's motion, concluding that "Kent's
statements were directly admissible against [Denny]," but that
"even if Kent's statements were not directly admissible, it was
harmless error to admit them." State v. Denny, 163 Wis. 2d 352,
355, 359, 471 N.W.2d 606 (Ct. App. 1991). Thereafter, Denny
filed a petition for a writ of habeas corpus in federal court,
and both the Seventh Circuit and the district court below it
denied relief. See Denny v. Gudmanson, 252 F.3d at 899, 905.
The Supreme Court of the United States denied certiorari. Denny
v. Gudmanson, 534 U.S. 938 (2001).

Case law pertaining to the Confrontation Clause has
developed in the time since these other proceedings. Compare,
e.g., Denny v. Gudmanson, 252 F.3d at 902-03 (discussing Ohio v.
Roberts, 448 U.S. 56 (1980)), with Crawford v. Washington, 541
U.S. 36, 69 (2004) (Rehnquist, C.J., concurring in the judgment)
(criticizing "the Court's decision to overrule" Roberts). Denny
does not now suggest that consideration of certain portions of
the testimony presented at the trial against him is improper.
Consequently, in our discussion of the background of this case,
above, we provided the testimony introduced at Denny's trial as
it actually occurred, including statements allegedly made by
both Kent and Denny. Nevertheless, and without expressing an
opinion on any constitutional question, we observe that our
decision would be the same even if we did not consider Kent's
statements. Cf. State v. Denny, 163 Wis. 2d at 359 ("Upon
reviewing the record, we conclude there is evidence sufficient
to convict [Denny] even without the statements made by Kent.").

42
 No. 2015AP202-CR

¶78 Additionally, given the way this case proceeded, the

reasoning of the circuit court below is sound: "Mohr's killing

has never been presented as a single-perpetrator

crime. . . . Finding DNA from persons other than Denny"——even

convicted offenders——"would not 'prove Denny's innocence.' It

may only reveal the identity of others who may have been

involved." In light of this fact, and given that there is no

single account of what transpired in this case, the absence of

DNA belonging to Denny and Kent would not be particularly

compelling, either. Indeed, the fact that there were various

inconsistencies between the accounts of the witnesses actually

serves to insulate Denny's conviction.

¶79 We note (as did the circuit court) that the jury in

Denny's case was even presented with a less-sophisticated

preview of what Denny now seeks to obtain through DNA testing:

two of the hairs tested by Nilsson using "microscopic

comparison" were not consistent with samples taken from Mohr,

Denny, or Kent. In other words, the jury was aware of the
possibility that an unknown third party might have been

involved.

¶80 Denny suggests that the witnesses in his case were not

credible——because of, for example, grants of immunity or of

admitted drug and alcohol use at pertinent times——but of course

the jury was not convinced by this line of argument. The idea

that the DNA results Denny seeks would tip the scales and cause

police or a jury to reject the substantial evidence against
Denny is simply conjecture.
43
 No. 2015AP202-CR

¶81 In sum, Wis. Stat. § 974.07(7)(a)2. has not been met.21

Even if exculpatory DNA testing results were available before

prosecution and conviction, we are unable to conclude that it is

reasonably probable that Denny would not have been prosecuted or

convicted of his crime. As put by the separate writing below,

"The evidence was vast, overwhelming, and damning. It was not

even close." Denny, 368 Wis. 2d 363, ¶86 (Hagedorn, J.,

concurring in part and dissenting in part). The circuit court

below compared this case to hypothetical cases in which the

truth of who really committed the crime is more readily verified

through DNA testing, such as one involving "a semen match in a

single assailant sexual assault." The evidence provided by the

21
The parties offer nuanced, and differing, interpretations
of the phrase "reasonably probable." Wis. Stat.
§ 974.07(7)(a)2. The State asserts that "reasonably probable"
means 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. McCallum, 208
Wis. 2d 463, 475, 561 N.W.2d 707 (1997). In contrast, Denny
believes that "reasonably probable" means "a probability
sufficient to undermine confidence in the outcome." Strickland
v. Washington, 466 U.S. 668, 694 (1984). We decline to resolve
the parties' dispute over the precise meaning of "reasonably
probable," given that Denny's motion should be denied under
either standard. See Maryland Arms Ltd. P'ship v. Connell,
2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 ("Issues that
are not dispositive need not be addressed." (citing Gross v.
Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938)).

44
 No. 2015AP202-CR

State in 1982 is not so easily displaced.22 The circuit court

below correctly denied Denny's motion.23

IV. CONCLUSION

¶82 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.

22
This is not to say that Wis. Stat. § 974.07(7)(a)2. will
only be satisfied in cases involving a single perpetrator. For
instance, there may be cases involving multiple actors in which
the preconviction evidence establishes that the movant could
only have played one role in the crime and postconviction
forensic DNA testing sufficiently discredits that possibility.
Because those circumstances are not present here, we need not
analyze this issue further.
23
Citing State v. Hudson, 2004 WI App 99, ¶16, 273
Wis. 2d 707, 681 N.W.2d 316, for the proposition that a circuit
court's determination under Wis. Stat. § 974.07(7)(a)2. is
reviewed for an erroneous exercise of discretion, the court of
appeals below concluded that the circuit court applied multiple
"improper standards of law" in reaching its ultimate decision
regarding § 974.07(7)(a)2. Denny, 368 Wis. 2d 363, ¶59. More
specifically, the court of appeals found error in certain
conclusions of the circuit court relating to the relevance of
the evidence that Denny sought to test and whether those results
would be exculpatory or could exculpate Denny. Id., ¶¶38, 59.
Regardless of the propriety of these conclusions or of the
technical accuracy of the court's phrasing of certain legal
propositions, review of the circuit court's entire decision
makes clear that it properly analyzed the question at issue
here, namely whether § 974.07(7)(a)2. was met. Cf., e.g.,
Englewood Cmty. Apartments Ltd. P'ship v. Alexander Grant & Co.,
119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App. 1984)
("[R]emand directing the trial court to make an explicit finding
where it has already made unmistakable but implicit findings to
the same effect would be both superfluous and a waste of
judicial resources.").

45
 No. 2015AP202-CR

By the Court.—The decision of the court of appeals is

reversed.

46
 No. 2015AP202-CR.pdr

¶83 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part,

dissenting in part). Although the majority opinion correctly

overrules Moran's interpretation of Wis. Stat. § 974.07(6), in

which portion of the opinion I concur and join, I dissent from

the part of the majority opinion that concludes that Jeffrey

Denny is not entitled to DNA testing of evidence collected at

the crime scene. I conclude that Denny met the statutory

requirements of Wis. Stat. § 974.07(7)(a); and therefore, the

circuit court was required to grant Denny's motion for forensic

DNA testing. Accordingly, I respectfully concur in part and

dissent in part with, and from, the majority opinion.

I. BACKGROUND
¶84 The majority opinion ably sets forth the facts that

underlie the dispute before us. I will not repeat them, in

full, here. However, I do relate a few facts to turn the

reader's attention to my discussion that follows.

¶85 On January 26, 1982, Christopher Mohr was found dead
in his home by Jonathan Leatherman. Police received a tip that

Kent Denny was involved in the crime. Eventually, the police

pursued Kent's brother, Jeffrey Denny (Denny), as a suspect.

Both Denny and Kent were charged with first-degree homicide and

were tried together. On November 15, 1982, the jury found Denny

and Kent guilty.

¶86 On May 1, 2014, Denny filed a motion for

postconviction forensic DNA testing pursuant to Wis. Stat.
§ 974.07(7)(a). As the majority opinion notes, Denny claimed he

1
 No. 2015AP202-CR.pdr

was innocent of the murder and sought DNA testing of several

objects recovered from the crime scene. These items include:

"(1) the large section of a bong pipe; (2) the base of the bong

pipe; (3) the hairs collected from the victim's left hand;

(4) stray hairs found on various items of clothing from the

victim's body; (5) a yellow hand towel; and (6) facial breathing

masks found at the scene."1 In a supplemental memorandum, Denny

asked for DNA testing of several additional items:

"(1) additional pieces of the bong pipe; (2) blood from the

metal chair found by the victim's head; (3) the victim's bloody

clothing; (4) the bloody hat found near the victim; (5) the

bloody gloves found near the victim; (6) stray hairs found on

various items of clothing from the victim's body; (7) the

victim's hair; (8) the lighter found under the victim's body;

(9) the screens found on the victim's body; and (10) the glass

cup found near the victim."2

¶87 The circuit court denied Denny's motion, but the court

of appeals reversed. We granted the State's petition for
review.

1
Denny's Mot. for Postconviction DNA testing (May 1, 2014).
2
Denny's Supp. Mot. for Postconviction DNA testing (August
4, 2014).

2
 No. 2015AP202-CR.pdr

II. DISCUSSION

A. Standard of Review
¶88 This case requires us to interpret and apply Wis.

Stat. § 974.07. "Questions of statutory interpretation and

application are questions of law that we review independently."

State v. Hanson, 2001 WI 4, ¶14, 338 Wis. 2d 243, 808 N.W.2d

390.
B. General Wis. Stat. § 974.07 Principles
¶89 Denny sought DNA testing pursuant to Wis. Stat.

§ 974.07(7)(a). Unlike § 974.07(7)(b) in which the circuit

court has discretion, paragraph § 974.07(7)(a) requires the

circuit court to order DNA testing if the movant satisfies the

criteria set forth therein. The difference in the two

provisions, as the majority opinion correctly notes, is that a

movant is required to maintain his innocence in order to prevail

on a motion for DNA testing made pursuant to paragraph (a).

¶90 Wisconsin Stat. § 974.07(7)(a) has four requirements a

movant must meet in order to be successful. First, as mentioned

above, the defendant must maintain "that he or she is innocent
of the offense." Wis. Stat. § 947.07(7)(a)1.

¶91 Second, it must be "reasonably probable that the

movant would not have been . . . convicted . . . if exculpatory

deoxyribonucleic acid testing results had been available before

the prosecution, [or] conviction, . . . ." Wis. Stat.

§ 947.07(7)(a)2.

¶92 "Reasonably probable" is an outcome determinative test

akin to the test we apply when determining if newly discovered
evidence warrants a new trial. Similar to the test we apply in

3
 No. 2015AP202-CR.pdr

that context, "we must determine whether there is a reasonable

probability that a jury, looking at all the relevant evidence in

regard to whether the defendant did or did not commit the crime,

would have reasonable doubt as to the defendant's guilt. This

examination requires an assessment of all the evidence to

determine what effect, if any, the newly discovered evidence

would be reasonably probable to have on a jury's verdict at a

new trial." State v. Armstrong, 2005 WI 119, ¶167, 283 Wis. 2d

639, 700 N.W.2d 98 (Roggensack, J., dissenting) (internal

citation marks omitted). Moreover, under this prong, the plain

language of Wis. Stat. 947.07(7)(a)2. requires that we are to

assume, as we consider Denny's motion, that all of the evidence

he seeks to have tested will be exculpatory because the test he

must meet, which is set out in subdivision (a)2., concerns

"exculpatory deoxyribonucleic acid testing results."3 Stated

otherwise, if we did not assume that the DNA testing results

would be exculpatory, we could not decide whether it would be

reasonably probable that Denny would not have been convicted if
the DNA testing results had been available at trial.

¶93 Third, pursuant to Wis. Stat. § 974.07(7)(a)3., the

movant must meet the criteria set forth in § 974.07(2)(a)-(c).

Section 974.07(2)(a) provides that "[t]he evidence [must be]

relevant to the investigation or prosecution that resulted in

the conviction." The evidence must be in the possession of a

3
Exculpatory evidence is defined as "Evidence tending to
establish a criminal defendant's innocence." Exculpatory
Evidence, Black's Law Dictionary 637 (9th ed. 2009).

4
 No. 2015AP202-CR.pdr

government agency. Wis. Stat. § 974.07(2)(b). Finally, the

evidence was not "previously [] subjected to forensic

deoxyribonucleic acid 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)(c). If a movant meets each of these

criteria, then he has satisfied the third statutory requirement

necessary to obtain DNA testing.

¶94 Fourth, "The chain of custody of the evidence to be

tested [must] establish[] 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." Wis. Stat. § 974.07(7)(a)4. This requirement

ensures the integrity of the evidence the defendant seeks to

test.
¶95 As discussed above, Wis. Stat. § 974.07(7)(a) provides

that a movant who meets each of these statutory criteria is

entitled to DNA testing of evidence relevant to the crime of

which he was convicted.

5
 No. 2015AP202-CR.pdr

C. Denny's Motion for DNA Testing

¶96 In the present case, we must decide whether Denny

satisfied the criteria set forth in Wis. Stat. § 974.07(7)(a).

Contrary to the majority, I would conclude that Denny has met

the statutory requirements, and therefore his motion for

postconviction DNA testing must be granted.

¶97 Without discussion of the remaining statutory

requirements,4 the majority concludes that Denny has not

fulfilled the second statutory criteria. In essence, the

majority holds that it is not "reasonably probable that [Denny]

would not have been prosecuted. . . [or] convicted of his crime

if exculpatory [DNA] testing results had been available."5

¶98 Consistent with the circuit court's analysis, the

majority reasons that the State did not present this to the jury

as a single-perpetrator crime. The majority's analysis can be

summed up simply: the State theorized that other individuals

were involved in the crime, and some witnesses testified that

Denny was minimally involved, so a lack of Denny's DNA on the

4
There is no dispute that Denny has satisfied the other
three statutory requirements. First, as required by
§ 974.07(7)(a)1., Denny has consistently maintained his
innocence. See Denny's motion for postconviction DNA testing
(May 1, 2013). Likewise, Denny has satisfied the criteria set
forth in the third factor: the DNA evidence is relevant; in the
possession of the Ozaukee County Clerk of Courts office, which
is a government entity; and neither party contends that the
evidence has previously been tested. Similarly, Denny satisfied
the fourth criteria as the State does not contend that the
evidence has been tampered with or that the chain of custody has
been broken, and nothing in the record suggests otherwise.
5
Majority op., ¶76.

6
 No. 2015AP202-CR.pdr

objects retrieved from the scene of the crime is not

exculpatory.

¶99 However, the majority's conclusion is misplaced for

two interrelated reasons. First, it understates the importance

of the manner in which the State actually tried the case.

Specifically, the State presented witness after witness that

testified Denny was at the scene of the crime, including

specific details about Denny's active participation in

physically attacking Mohr. Second, if Denny's DNA is not found

on any of the objects for which DNA testing is sought, the

majority's analysis undervalues the potential of this lack of

DNA evidence. This is so because it would suggest that

testimony placing Denny at the scene of the crime and physically

attacking Mohr was not reliable.

¶100 For example, Trent Denny, Denny's brother, testified

that Denny admitted he had stabbed Mohr. According to Trent,

Mohr "was coming after [Denny] while [Denny] was stabbing him."

Another witness, Lori Ann Jastor Commons, related that Kent
stated Denny had stabbed Mohr. Steven Hansen testified at trial

that Denny had kicked Mohr. Patricia Robran testified that

Denny had informed her 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." An inmate

at Ozaukee County Jail testified that Denny confessed he "hit

[Mohr] over the head with a bong and kicked him a couple times."
Tammy Whitaker testified that Denny told her two versions of how

7
 No. 2015AP202-CR.pdr

the murder occurred, both of which involved Denny's active

participation in the murder. Another witness testified that

Denny stated he had a scratch on his leg where Mohr had

scratched him during their struggle.

¶101 Consequently, the State relied on the testimony of

numerous witnesses to prove Denny's direct involvement in the

murder by physically attacking Mohr. DNA testing of the

evidence from the scene of the crime may well impact whether

this testimony about Denny's involvement was true. Stated

otherwise, if none of Denny's DNA is on any of the articles for

which DNA testing is requested, the jury could have a reasonable

doubt whether Denny committed the crime.

¶102 Additionally, this is not a case in which a dearth of

material recovered from the scene of the crime would make DNA

testing futile; rather, the police obtained numerous articles

that likely contain DNA. The sheer number of articles to be

tested makes Denny's point all the more compelling. If he was

actively involved in the murder by physically attacking Mohr,
one or more of the objects should contain traces of his DNA.

And, as discussed above, Wis. Stat. § 974.07(7)(a)2. requires us

to assume that there will be no trace of Denny's DNA because we

assume the evidence is exculpatory as we consider whether to

grant his postconviction motion.

¶103 A brief description of what the police recovered from

the scene of the crime is helpful to understand the import of

this evidence. When police arrived at the scene, a bong pipe
was shattered around Mohr's body. An officer that was at the

8
 No. 2015AP202-CR.pdr

crime scene testified that there were large amounts of blood on

pieces of the bong pipe. Denny seeks testing of this pipe and

its broken pieces to determine if it contains DNA. The bong

pipe is particularly relevant to Denny's claim of innocence

because the State presented testimony at trial that Denny struck

Mohr in the head with the bong pipe. A lack of Denny's DNA on

the bong pipe could suggest that Denny had not touched it, and

directly undermine this trial testimony.

¶104 Moreover, Denny seeks testing of several hairs that an

officer found in Mohr's left hand. It requires little

speculation to surmise that these hairs likely belong to an

individual that was actively involved in the crime. And the

State presented testimony at trial that Denny was one of these

individuals. If the hairs do not belong to Denny, it could lead

a juror to doubt testimony about his active involvement.

¶105 The same analysis applies to the numerous strands of

hair stuck to Mohr's body by dried blood. The State's theory of

the crime involved a struggle between Denny and Mohr. And,
several witnesses testified that Denny stabbed Mohr. A juror

could justifiably question the credibility of this testimony if

none of the hairs found belonged to Denny.

¶106 Accordingly, the articles that Denny seeks to have

tested for DNA are not only numerous, but also highly relevant

to the testimony the State presented against Denny at trial.

Evidence that could show Denny was not at the scene of the crime

could affect the credibility of the State's witnesses.

9
 No. 2015AP202-CR.pdr

¶107 Of course, this is not to imply that the testimony

against Denny at trial was not substantial. Yet, if the large

quantity of evidence found at the scene is presumed to be

exculpatory, i.e. none of it contains Denny's DNA, then the

testimony proffered against Denny at his trial would be

significantly undercut. And, this is where the majority errs.

It does not adequately view the evidence in light of the State's

trial presentation of the case.

¶108 If the DNA testing shows none of Denny's DNA, given

the State's trial presentation of the case, it is reasonably

probable that one or more jurors would have had reasonable doubt

as to Denny's involvement in the crime. Stated more fully, one

juror could have concluded that the State's theory that Denny

actively participated in the murder of Mohr was untenable given

the lack of Denny's DNA at the scene of the crime, which could

suggest that Denny was not there.

¶109 Accordingly, I conclude that Denny is entitled to

forensic DNA testing in the present case. Finally, I note that
Denny is not necessarily entitled to a new trial regardless of

the results of the DNA tests. Supreme court review is limited

to whether Denny met the statutory criteria to entitle him to

DNA testing.6

6
Likewise, I do not address whether this testing should be
at Denny's or the public's expense as that is a matter reserved
for the circuit court.

10
 No. 2015AP202-CR.pdr

III. CONCLUSION

¶110 In light of the foregoing, although the majority

opinion correctly overrules Moran's interpretation of Wis. Stat.

§ 974.07(6), in which decision I concur, I dissent from its

conclusion affirming the circuit court's refusal to order

forensic DNA testing. Accordingly, I would affirm the court of

appeals, although on a different basis, and I respectfully

concur in part and dissent in part from the majority opinion.

11
 No. 2015AP202-CR.ssa

¶111 SHIRLEY S. ABRAHAMSON, J. (dissenting). I join

Justice Ann Walsh Bradley's excellent dissent.

¶112 I write separately on the substance of the order the

court issued on August 12, 2016. The order denied Jeffrey C.

Denny's (the defendant's) motion to strike Issue III of the

State of Wisconsin's opening brief. My separate writing at that

time stated I would be filing this writing.1

¶113 Let me set the background for this separate writing.

The State petitioned the court for review, seeking reversal of

the decision of the court of appeals. The court granted the

State's petition.

¶114 The State filed its initial brief in this court. The

defendant, Jeffrey Denny, moved to strike the third issue of the

State's initial brief, i.e., whether this court's decision in

State v. Moran,2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884,

should be overruled. The court denied the motion on August 12,

1
I wrote as follows on the order dated August 12, 2016:

I write to note my objections to the procedure
followed in issuing this order and the substance of
the order. Chief Justice Roggensack ordered the
release of this order despite my request that it be
held pending my completion of research and writing a
dissent to be circulated at the beginning of this
coming week. Issuing the order next week would not
delay the oral argument of this case at the end of
October. Justice Ann Walsh Bradley's vote was
awaiting her reading my dissent. I thus note my
objections at this time; a separate writing will
follow.

I wrote my procedural objection in my writing on August 12,
2016. I now write my objection on the substance of the order
denying the defendant's motion to strike.

1
 No. 2015AP202-CR.ssa

2016, without explanation. I would have either granted the

motion or denied the motion to strike part of the State's brief.

In either event I would have advised the State it had erred in

briefing the issue without seeking the court's consent to do so.

¶115 The rules of appellate practice support the

defendant's motion. The rules of appellate practice do not

support the court's order denying the defendant's motion without

commenting on the rule of appellate practice involved.

¶116 I write because this is not the only case in which the

court seems to be ignoring the rules of appellate practice. The

litigants ought to know whether the court is adhering to its own

rules of appellate practice, so they can determine whether they

should adhere to the appellate practice rules.

¶117 The rules provide that a petition for review "must

contain [a] statement of the issues the petitioner seeks to have

reviewed . . . ." See Wis. Stat. (Rule) § 809.62(2)(a).

Furthermore, the rules clearly state the consequences for

failure of the petition for review to state an issue to be
reviewed: "If a petition [for review] is granted, the parties

cannot raise or argue issues not set forth in the petition

unless ordered otherwise by the supreme court." See Wis. Stat.

(Rule) § 809.62(6); Michael Heffernan, Appellate Practice and

Procedure in Wisconsin § 23.8 D (6th ed. 2014); id., § 23.8 D

(Supp. 23-1 Dec. 2015) ("Failure to raise an issue in the

petition for review is deemed a waiver of any claim that the

supreme court should consider the issue.").

2
 No. 2015AP202-CR.ssa

¶118 Strict adherence to the statement of the issues in the

petition for review is important for at least two reasons.

¶119 First, the statement of the issues in the petition for

review gives notice to the other party to enable it to respond

to the petition for review.

¶120 Second, the statement of the issues in the petition

for review and the opposing party's response (and sometimes an

amicus curiae filing) are the basis for the court's determining

whether it will grant the petition to decide the issue(s)

presented. If the court grants a petition for review, the court

might accept all issues for review, might limit review to

certain stated issues, or might add one or more issues for

review.

¶121 With this procedure in mind, I turn to the State's

petition for review in the instant case. It raised four issues.2

2
The State's petition for review framed the four issues
presented for review as follows:

1. Did the court of appeals misapply Moran when it
held that a defendant seeking postconviction DNA
testing of "relevant" evidence under Wis. Stat.
§ 974.07(2) need not demonstrate that the
physical evidence "contains biological material
or on which there is biological material" as
provided under subparagraph 974.07(6)(a)2.?

2. In reviewing a motion for DNA testing at State
expense under Wis. Stat. § 974.07(7)(a), must a
circuit court always assume that a DNA test
result will be exculpatory?

3. In assessing whether it is "reasonably probable"
that a defendant would not have been convicted if
exculpatory DNA results had been available,
(continued)
3
 No. 2015AP202-CR.ssa

No issue sought the overruling of this court's decision in

Moran. The petition for review refers to the interpretation and

application of Moran in the instant case, not its overruling.

¶122 The State's brief in this court now raises three

issues, one seeking the overruling of the Moran case.3

¶123 The order granting the State's petition for review

(which was the court's standard order granting a petition for

review) succinctly limited the issues to be briefed or argued by

the State as follows: The State "may not raise or argue issues

should a circuit court apply a newly discovered
evidence standard?

4. Did the circuit court erroneously exercise its
discretion under Wis. Stat. § 974.07(7)(a) when
it found that the jury would have convicted Denny
even if exculpatory DNA results were present?
3
The State's initial brief framed the three issues
presented as follows:

1. To obtain post-conviction DNA testing of
evidence, must the movant show that the evidence
"contains biological material" that "will be
relevant to his prosecution," State v. Moran,
2005 WI 115, ¶¶3, 46, 284 Wis. 2d 24, 700
N.W.2d 884?

2. To obtain post-conviction DNA testing at state
expense, must the movant also show that there is
a "reasonable probability that a jury,"
considering exculpatory DNA results, "would have
reasonable doubt as to the defendant's guilt,"
State v. McCallum, 208 Wis. 2d 463, 475, 561
N.W.2d 707 (1997)?

3. Should this court overrule State v. Moran, 2005
WI 115, 284 Wis. 2d 24, 700 N.W.2d 884?

4
 No. 2015AP202-CR.ssa

not set forth in the petition for review unless otherwise

ordered by the court."

¶124 It is not always easy to tell the difference between

an issue, an argument, and a subsidiary issue.4 A subsidiary

issue is deemed to be included in the statement of an issue.

Wis. Stat. § 809.62 (4)(a).

¶125 In the instant case it is easy to conclude that the

request to overrule Moran is an issue, not an argument or a

subsidiary issue. Requesting the court to overturn a prior

decision has not been viewed by this court as an argument (when

the petition for review seeks interpretation of the decision)

and has not been viewed as subsidiary to the issue of

interpreting and applying a prior court decision.

¶126 The State conceded in its initial brief that it did

not raise the issue of overruling Moran in its petition for

review. The State's brief at 41, n.11 states: "The Court may

consider this argument [of overruling Moran] even though it was

not expressly raised in the Petition for Review." In its reply
to the defendant's motion to strike this argument, the State's

defense was that the need to raise an issue in the petition for

review is only a "general rule," "not a hard-and-fast rule" that

bars briefing in every case. The State cites no case or other

authority supporting its contention that the need to raise an

issue in the petition for review is only a general rule that

does not bar briefing in every case. I could find none.

4
Michael Heffernan, Appellate Practice and Procedure in
Wisconsin § 3.4 at 4 (6th ed. 2014; Supp. 3-2 Dec. 2015).

5
 No. 2015AP202-CR.ssa

¶127 The State bases its right to brief the issue of

overruling Moran on the court's discretion to consider issues

not raised by the petition for review. The court does have the

power to consider issues not raised by the petitioner.5 But the

court's power to consider issues not raised by the petitioner

does not pass to the State (or any petitioner filing a petition

for review) the right to brief issues it did not raise in its

petition for review. If a petitioner wishes to raise a new

issue, it must seek the court's consent. Michael Heffernan,

5
If this court addresses an issue not raised by the
parties, the court should give the parties an opportunity to
tackle the issue. A defendant has a due process right to notice
of issues to be resolved and to be heard in a meaningful way.
See, e.g., Lankford v. Idaho, 500 U.S. 110, 126 (1991) (notice
of "issues to be resolved by the adversary process is a
fundamental characteristic of fair procedure"); California v.
Trombetta, 467 U.S. 479, 486 (1984) ("criminal prosecutions must
comport with prevailing notions of fundamental fairness");
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950) (due process requires that "adjudication be preceded by
notice and opportunity for hearing appropriate to the nature of
the case"); City of Janesville v. CC Midwest, Inc., 2007 WI 93,
¶68, 302 Wis. 2d 599, 734 N.W.2d 428 (Bradley, J., concurring)
("The rule of law is generally best developed when issues are
raised by the parties and then tested by the fire of adversarial
briefs and oral arguments."); Bloomer v. Gibson, 912 A.2d 424,
433–34 (Vt. 2006) ("The opportunity to present arguments on the
legal issue upon which a case is to be decided is fundamental to
sound legal process . . . .") (citing Adam A. Milani & Michael
R. Smith, Playing God: A Critical Look at Sua Sponte Decisions
by Appellate Courts, 69 Tenn. L. Rev. 245 (2002).

6
 No. 2015AP202-CR.ssa

Appellate Practice and Procedure in Wisconsin § 23.14 at 17 (6th

ed. 2014).6

¶128 In sum, adhering to the rules of appellate practice

and procedure, I would have either granted the motion to strike

or denied the motion to strike but advised the State it had

erred in briefing the issue without seeking the court's consent

to do so.

¶129 Fortunately, the defendant in the instant case had an

opportunity to respond to the State's challenge to the Moran

case. The first issue the defendant addressed in its brief was

whether the court should abandon the court's unanimous “plain

language” reading of Wis. Stat. § 974.07 in Moran.

¶130 I join Justice Ann Walsh Bradley's dissent, and for

the reasons set forth I write separately on an issue Justice Ann

Walsh Bradley's dissent does not address.

6
In a recent case, Coyne v. Walker, 2016 WI 38, 368
Wis. 2d 444, 879 N.W.2d 520, the court recognized that an
argument to overrule a prior decision raises a different issue
than an argument relating to the interpretation and application
of the prior case. The parties' briefs in Coyne argued about
the interpretation and application of Thompson v. Craney, 199
Wis. 2d 674, 546 N.W.2d 123 (1996). The amicus brief in Coyne
argued that the Craney case should be overruled. Because the
court was going to consider this new issue raised by the amicus,
the court allowed the parties to brief this new issue.

7
 No. 2015AP202-CR.awb

¶131 ANN WALSH BRADLEY, J. (dissenting). One of the

essential tenets of our criminal justice system is that the

"administration of justice is and should be a search for the

truth." Garcia v. State, 73 Wis. 2d 651, 655, 245 N.W.2d 654

(1976). It is undisputed that DNA testing is "one of the most

significant scientific advancements of our era" and the most

powerful technology we have for revealing the truth. Maryland

v. King, 133 S. Ct. 1958, 1966 (2013).

¶132 Making several missteps along the way, the majority

limits the contours of this search. Dedicating almost half of

its lengthy opinion to an exposition of the facts, it emphasizes

the strong evidence of Denny's guilt as a reason to circumscribe

his ability to conduct DNA testing. Of course there is strong

evidence of guilt. Denny, as well as the multitude of convicted

persons who have been exonerated after DNA testing, were all

found guilty beyond a reasonable doubt.

¶133 The question is not whether there is strong evidence

of guilt. Rather, the question is whether the legislature has
written a statute that gives Denny the opportunity to test

evidence that has the potential to exonerate him. More

precisely, at issue in this case is whether Wisconsin's post-

conviction DNA testing statute allows a defendant to test, at

his own expense, evidence containing biological material that is

relevant to the investigation or prosecution that resulted in

his conviction.

¶134 This same question was answered eleven years ago, when
this court unanimously determined that the plain meaning of the

1
 No. 2015AP202-CR.awb

post-conviction DNA testing statute "gives the defendant the

right to test the sought-after evidence . . . ." State v.

Moran, 2005 WI 115, ¶57, 284 Wis. 2d 24, 700 N.W.2d 884.

Nothing in the DNA testing statute has changed in the decade

since this court decided Moran, nor has the State presented any

evidence that the statute has been unworkable in practice. The

only thing that has changed is the composition of this court.

¶135 In reaching its conclusion, the Moran court issued an

invitation to the legislature. See id., ¶56 ("We encourage the

legislature to revisit Wis. Stat. § 974.07 . . . ."); see also

id., ¶59 (Wilcox, J. concurring) (" . . . I strongly urge the

legislature to take a hard look at the practical consequences of

[subsection (6)].").

¶136 The legislature did not respond to the invitation.

Throwing caution (as well as any semblance of judicial

restraint) to the wind, the majority steps in to perform the

legislature's job.

¶137 It now overrules Moran and runs roughshod over the
fundamental doctrine of stare decisis. To justify overturning

unanimous precedent, the majority unearths a heretofore unknown

test which it labels "principles of policy." Majority op., ¶71.

Apparently not very convinced of the legitimacy of its own

discovery, the majority obscures the application of the new test

by tucking it away in a footnote. Id., ¶70 n.16.

¶138 In overruling Moran, not only does the majority apply

a test that courts have never before used, it also attempts to
justify its action by relying on an "imagine[d]" purpose that

2
 No. 2015AP202-CR.awb

the legislature never stated. Garnering a trifecta of "nevers,"

it then embarks upon rewriting the plain meaning of Wis. Stat.

§ 974.07 by inserting a limitation that the legislature never

created.

¶139 Ultimately, the majority arrives at a determination

that pursuant to Wis. Stat. § 974.07(6), all Denny can do is

look at evidence with the naked eye when its potential to

exonerate him is invisible until it is tested. Id., ¶71. Such

a useless procedure renders the majority's determination absurd.

¶140 The majority further missteps when it deprives Denny

of the opportunity to test for potentially exculpatory evidence

under an alternative statutory procedure. Whether analyzed

under Wis. Stat. § 974.07(6) or (7), the majority impedes the

search for the truth by erroneously limiting access to post-

conviction DNA testing.

¶141 Contrary to the majority, I would adhere to this

court's unanimous decision in Moran. The plain meaning of Wis.

Stat. § 974.07(6) gives the defendant the right to test, at his
own expense, evidence containing biological material that is

relevant to the investigation or prosecution that resulted in

his conviction. In the alternative, I conclude that Denny has

met the requirements under Wis. Stat. § 974.07(7)(a) for post-

conviction DNA testing.

¶142 Accordingly, I respectfully dissent.

I

¶143 This court follows the doctrine of stare decisis
"scrupulously because of our abiding respect for the rule of

3
 No. 2015AP202-CR.awb

law." Johnson Controls Inc. v. Employers Ins. of Wausau, 2003

WI 208, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257. A court's decision

to depart from precedent is not to be made casually and we

should not depart from precedent without sufficient

justification. Id.

¶144 In this case "stare decisis carries enhanced force"

because this court's decision in Moran interpreted a statute.

See Kimble v. Marvel Ent., LLC, 135 S. Ct. 2401, 2409 (2015)

(without "special justification," the decision to correct

statutory interpretation should be left to the legislature); see

also State v. Lynch, 2016 WI 66, ¶¶208-209, 371 Wis. 2d 1, 885

N.W.2d 1 (Ziegler, J., dissenting) ("[I]t is not alone

sufficient that we would decide a case differently now than we

did then. To reverse course, we require as well what we have

termed a 'special justification'——over and above the belief

"that the precedent was wrongly decided.") (quoting Kimble, 135

S. Ct. at 2409).

A
¶145 By overruling Moran, the majority disregards the

fundamental principle of stare decisis and manufactures a

heretofore unknown test for overturning precedent.

¶146 According to the majority, its decision to overrule

Moran is justified because stare decisis is a "'principle of

policy,' rather than an 'inexorable command.'" Majority op.,

¶71 (citing Hohn v. United States, 524 U.S. 236, 251 (1998)

(quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991))). In
Johnson Controls, this court explained what is meant by the

4
 No. 2015AP202-CR.awb

phrase "principle of policy." Stare decisis is a "principle of

policy" because it is "a policy judgment that 'in most matters

it is more important that the applicable rule of law be settled

than that it be right.'" Johnson Controls, 264 Wis. 2d 60, ¶97.

¶147 In asserting that "sometimes stare decisis must yield

to other important principles of policy," the majority blatantly

mischaracterizes the law. Majority op., ¶71. It transposes the

single stated "principle of policy" underlying stare decisis

(that settled law is of the utmost importance), into an unknown

and potentially unlimited number of "principles of policy" that

could justify overruling precedent. What are these principles?

Whose are they? Are they legislative policies or policies that

this court develops as the need arises?

¶148 Further, the majority fails to meet its newly minted

"principles of policy" test because it does not offer a

compelling policy reason for overturning Moran. Indeed, the one

policy the majority identifies is one it admits is "not

dispositive in the case at issue . . . ." Id., ¶70 n.16.
¶149 Apparently not convinced about the legitimacy of its

principle of policy, the majority tucks it away in a footnote——

asserting that overruling Moran is "the best way to protect the

rights and interests of crime victims in Wisconsin." Id., ¶70

n.16.

¶150 The majority's footnoted justification for overruling

Moran is at odds with the rational offered by now-governor Scott

Walker who co-authored this legislation. In an interview, then
former state representative Scott Walker explained that post-

5
 No. 2015AP202-CR.awb

conviction DNA testing is focused on keeping us all safe——

victims and the public alike:

Whether it's proving someone's guilt or someone's
innocence, in either case, it keeps us safer because
if somebody is innocent, that means somebody who's
guilty is still out there, and we can use that
evidence to get them off the streets.1
¶151 Unsurprisingly, there is nothing in the record

indicating that victims have suffered any more harm since Moran

was decided. Faced with this void in the record, the majority

resorts to imagination: "it is not difficult to imagine why

such testing might cause significant distress to

victims . . . ." Majority op., ¶70 n.16.

¶152 Based on this speculation, supported and advanced by

its collective imagination, the majority divines a "principle of

policy" in its attempt to justify overruling Moran. It

concludes that upholding Moran "would be purposefully

perpetuating a much more expansive postconviction forensic DNA

testing regime than the legislature saw fit to enact, to the

possible detriment of Wisconsin crime victims." Id., ¶70 n.16.

¶153 The rights and interests of crime victims are

undeniably important considerations, which the legislature has

already addressed through the notice provisions in Wis. Stat.

1
Dee J. Hall, Nine people freed on strength of DNA testing
in Wisconsin, WisconsinWatch.org, Dec. 13, 2009,
http://wisconsinwatch.org/2009/12/nine-people-freed-on-strength-
of-dna-testing-in-wisconsin/.

6
 No. 2015AP202-CR.awb

§ 974.07(4).2 However, relying on an "imagined" policy reason to

limit the availability of DNA testing strays too far from

subsection (4)'s victim-notification mandate. See State ex rel.

Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶48, 271

Wis. 2d 633, 681 N.W.2d 110. There is nothing in the text of

the statute that suggests the legislature intended to limit

post-conviction DNA testing due to the speculative concerns the

majority identifies here.

¶154 Contrary to the majority's assertions, allowing DNA

testing does not undermine finality or lead to "the possibility

of 'inequitable results'" due to "open[ing] up cases that have

long been thought by everyone, including crime victims, to be

final." Majority op., ¶70 n.16 (citation omitted). Performing

DNA testing on relevant evidence is only the first step in a

process where the defendant must next demonstrate that the

results of the testing support his claim. See Moran, 284

Wis. 2d 24, ¶47 (allowing DNA testing does not guarantee a new

trial or even an evidentiary hearing).
¶155 If the DNA test results do not support a defendant's

claim, the case is not reopened. And if the DNA testing results

do support a defendant's claim of innocence, victims will have

little interest in finality if the true criminal perpetrator is

still at large. See majority op., ¶70 n.16.

2
Pursuant to Wis. Stat. § 974.07(4)(a), if a motion for
post-conviction DNA testing is made under sub. (2), the circuit
court shall send a copy of the motion to the victim. Likewise,
if a hearing on the motion is scheduled, a notice of the hearing
shall be sent to the victim. Wis. Stat. § 974.07(4)(a).

7
 No. 2015AP202-CR.awb

¶156 Likewise, there is no evidence that post-conviction

DNA testing has lead to "inequitable results." If the majority

intends to speculate that post-conviction DNA testing might lead

to the "possibility" of wrongfully exonerating a criminal

defendant, it has a very steep hill to climb. The State has

introduced no evidence that legitimate convictions have been

overturned. Additionally, courts have widely acknowledged that

DNA testing is unparalleled in its ability to exonerate the

wrongly convicted and identify the guilty. Maryland v. King,

133 S. Ct. at 1966.

B

¶157 Turning away from the majority's newly created

"principles of policy" test and instead considering the well-

established criteria this court has always applied in

determining whether it may overrule precedent, it becomes clear

why the majority saw the need to create a new test justifying

its decision. This case satisfies none of the well-established

criteria that would warrant departing from the doctrine of stare
decisis and overruling Moran.

¶158 In Johnson Controls, we identified several criteria in

Wisconsin for overruling our prior cases: (1) if "changes or

developments in the law have undermined the rationale behind a

decision"; (2) "there is a need to make a decision correspond to

newly ascertained facts"; or (3) "there is a showing that the

precedent has become detrimental to coherence and consistency in

the law." 264 Wis. 2d 60, ¶98. We explained further that other
"relevant considerations in determining whether to depart from

8
 No. 2015AP202-CR.awb

stare decisis are whether the prior decision is unsound in

principle, whether it is unworkable in practice, and whether

reliance interests are implicated." Id., ¶99.

¶159 Addressing the first two factors, the majority argues

that the Moran court did not consider Wis. Stat. § 974.07(12) in

reaching its analysis. Majority op., ¶70 (citing Johnson

Controls, 264 Wis. 2d 60, ¶98). According to the majority,

"[r]econsideration of the statute with the benefit of a clear

understanding of [subsection (12)] convinces us that our

interpretation of sub. (6) must be modified to take account of

sub. (12)." Id.

¶160 The majority's analysis suffers from a glaring

mistake. Subsection (12) was a part of the statute at the time

Moran was decided and has not been changed in the interim.

Although the majority may place a different emphasis on

subsection (12) than did the Moran court, it would be

meaningless to require "changes or developments in the law" if

those changes originate from only this decision. Likewise,
there are no newly ascertained facts in this case aside from the

majority's new interpretation of the statute.

¶161 Equally flawed are the majority's unsubstantiated

claims that Moran's interpretation of Wis. Stat. § 974.07(6) has

"become detrimental to coherence and consistency in the law,"

that it has rendered "the rest of the statute incoherent in a

manner we obviously did not contemplate in Moran," and that it

is "unsound in principle." Id. (citing Johnson Controls, 264
Wis. 2d 60, ¶¶98-99).

9
 No. 2015AP202-CR.awb

¶162 The sole justification the majority offers here is

that "allowing testing under sub. (6) would require only the

barest of showings." Id., ¶66. According to the majority, it

is "difficult to believe that the statute is most properly read

to permit convicted offenders who are unable to meet the

surmountable sub. (7) standard to engage in postconviction

fishing expeditions in attempts to cast doubt upon and upset

those convictions." Id.

¶163 The majority's prospective concerns carry little

weight when there is no evidence that Moran's interpretation of

the statute has lead to frivolous requests for testing over the

last decade. Indeed, the State has offered no evidence that it

has been overwhelmed by demands for post-conviction DNA testing

or that legitimate convictions have been overturned.

¶164 At oral argument, Denny's counsel explained that the

Wisconsin Innocence Project "probably does the vast majority, if

not almost all of the post-conviction DNA testing in this

State."3 Counsel affirmed that there are very few post-
conviction motions for DNA testing filed each year, explaining

that "we're talking about a handful of cases each year. There's

no overwhelming burden on the system. It's a handful of cases."

3
The Wisconsin Innocence Project (WIP) is a clinical legal
education program that is part of the Frank J. Remington Center
at the University of Wisconsin Law School. It seeks to
"exonerate the innocent, educate students, and reform the
criminal justice system by identifying and remedying the causes
of wrongful convictions." Wisconsin Innocence Project,
University of Wisconsin Law School,
http://law.wisc.edu/fjr/clinicals/ip/index.html.

10
 No. 2015AP202-CR.awb

¶165 Contrary to the majority's assertions, there is no

evidence that Moran's interpretation of the post-conviction DNA

testing statute is incoherent or inconsistent in ways that have

become detrimental to the law. In fact, it appears that the

current statutory scheme has worked well for both defendants and

the State.

¶166 Post-conviction DNA testing pursuant to subsection (6)

avoids litigation and saves judicial resources because a

defendant does not need a court order to test evidence.

Additionally, it saves the State the cost of paying for the

testing and relieves the State from having to acknowledge that

the defendant has met the reasonably probable standard set forth

in Wis. Stat. § 974.07.

¶167 Given the legal and logical gymnastics the majority

performs in order to justify overruling Moran, one would hope

that its decision at least advances a sound interpretation of

the statute. Unfortunately, such hope is unrealized.

II
¶168 By rewriting Wis. Stat. § 974.07, the majority inserts

a limitation the legislature never created and arrives at an

unreasonable and absurd result.

¶169 In Moran, this court determined that if a defendant

met the threshold requirements set forth in Wis. Stat.

§ 974.07(2), he had two avenues for pursuing post-conviction DNA

testing.4 284 Wis. 2d 24, ¶55. Moran explained that "the

4
Wis. Stat. § 974.07(2) provides in relevant part that a
defendant may bring a motion for an order requiring DNA testing
(continued)
11
 No. 2015AP202-CR.awb

statutory text makes clear that subsections (6) and (7) are

intended for different purposes." Id. Subsection (6) allows a

defendant access to test results and evidence containing

biological material, but he must decide whether to test the

material and pay for the testing himself.5 Id. Subsection (7)

pertains to court-ordered testing at the State's expense. Id.6

if the evidence: (a) is relevant to the investigation or
prosecution that resulted in the conviction; (b) is in the
actual or constructive possession of a government agency; and
(c) has not been previously subject to DNA testing or, if it has
been previously tested, it may now be tested again using a
technique not previously available or utilized and that provides
a reasonable likelihood of more accurate and probative results.
5
Wis. Stat. § 974.07(6)(a) provides in relevant part:

(6)(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:
. . .

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 materials.
6
Wis. Stat. § 974.07(7)(a) provides in relevant part:

A court in which a motion under sub. (2) is filed
shall order forensic deoxyribonucleic acid testing if
all of the following apply:

1. The movant claims that he or she is innocent
of the offense at issue in the motion under sub.
(2).

2. It is reasonably probable that the movant
would not have been prosecuted [or] convicted
. . . if exculpatory deoxyribonucleic acid
(continued)
12
 No. 2015AP202-CR.awb

¶170 The majority does not dispute that "it is possible to

read § 974.07 as creating two systems for testing at private

expense (under subs. (6) and (12)) and one system for testing at

public expense (under sub. (12)) . . . " Majority op., ¶67.7

However, it overrules Moran because "we do not find this to be

the most sensible interpretation of the statute." Id.

¶171 Contrary to Moran, the majority now concludes that all

motions for post-conviction DNA testing must proceed by court-

order under Wis. Stat. § 974.07(7). Id., ¶68. Additionally,

the majority determines that Wis. Stat. § 974.07(6) allows a

defendant with only the naked eye to look at, but not test,

relevant evidence containing biological material. Id.

testing results had been available before the
prosecution [or] conviction . . .

Wis. Stat. § 974.07(7)(b) provides in relevant part:
A court in which a motion under sub. (2) is filed may
order forensic deoxyribonucleic acid testing if all of
the following apply:

1. It is reasonably probable that the outcome of
the proceedings that resulted in the
conviction . . . would have been more favorable
to the movant if the results of deoxyribonucleic
acid testing had been available before he or she
was prosecuted [or] convicted . . .
7
The payment of costs for post-conviction DNA testing are
set forth in Wis. Stat. § 974.07(12). Subsection 12(a) provides
that a 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." Subsection (12)(c) provides
that "[t]he state crime laboratories shall pay for testing
ordered under this section . . . if the court does not order the
movant to pay for testing."

13
 No. 2015AP202-CR.awb

¶172 Not only are the majority's complaints about Moran

unpersuasive,8 its analysis violates a basic premise that it is

the legislature that writes the statutes——not the courts. The

majority usurps the legislature's role when it writes its own

inspection limitation into subsection (6) that prohibits DNA

testing of evidence.9
8
The majority asserts that Moran erred in its statutory
interpretation because:

 Subsection (6) says nothing about allowing the movant
to conduct forensic testing or sending the evidence
away for testing. Majority op., ¶64.

 Moran did not discuss subsection (12). Id., ¶67.

 Subsection (6) does not reference testing by "court
order" like other subsections in the statute. Id.,
¶68.

Each of these points are easily rebutted:

 Even the majority acknowledges that "sub. (6) does not
explicitly prohibit a movant from testing evidence,
either." Id., ¶64.

 Moran harmonized subsection (12) with subsections (6)
and (7) when it determined that one provided for
private payment of costs and the other provided for
public payment of costs. See 284 Wis. 2d 24, ¶57.

 There is no reason why DNA testing must proceed by
court-order unless the court is ordering the State to
conduct and pay for the costs of that testing.
9
Not only does the majority fail to exercise deference to
the legislature, its decision in this case is out of step with
the legislature's commitment to utilizing DNA testing. For
example, the legislature recently enacted 2013 Wis. Act 20,
which expanded the collection, analysis, and maintenance of DNA
samples as part of a larger initiative to expand the State's DNA
databank. See, e.g., Wis. Stat. § 165.77(2)(a)1&3 (setting
forth the requirement that the DOJ provide for the analysis of
collected samples and maintain a state DNA databank).

14
 No. 2015AP202-CR.awb

¶173 In contrast, the Moran court explicitly declined to

"add language to the statute in order to justify the State's

interpretation." Moran, 284 Wis. 2d 24, ¶39. After careful

analysis, the Moran court determined that "[w]e are unable to

discern from the plain language of § 974.07 a clear legislative

intent to block testing demanded by a person willing and able to

pay until that person satisfies the requirements for publicly

funded DNA testing." Id., ¶54.

¶174 Additionally, the majority violates a well-established

canon of statutory construction that we interpret statutes

"reasonably, to avoid absurd or unreasonable results." Kalal,

271 Wis. 2d 633, ¶46. The majority's interpretation of the

statute, unlike the interpretation set forth in Moran, leads to

an absurd and unreasonable result because without DNA testing,

the ability only to look at evidence containing biological

material is essentially useless.

¶175 Apparently recognizing this fundamental flaw in its

reasoning, the majority asserts that "the facts in the case at
issue demonstrate why inspection is useful." Majority op., ¶71

n.17. It then explains that in his supplemental motion for

post-conviction DNA testing, Denny reviewed the physical

evidence on file and identified additional relevant items that

were previously overlooked. Id. Thus, according to the

majority, "the ability to inspect allows one to ascertain what,

if any, testing should be sought." Id.

¶176 Contrary to the majority's explanation, the facts of
this case demonstrate the futility of examining evidence without

15
 No. 2015AP202-CR.awb

being able to test it. Although Denny identified additional

relevant items that were overlooked, there is nothing he can do

with that evidence.

¶177 According to the majority, he can no longer test the

evidence at his own expense pursuant to subsection (6) and the

majority has denied his claim for court-ordered testing pursuant

to subsection (7). All Denny can do is look at the evidence

when its potential to exonerate him is invisible until it is

tested. This is an absurd and unreasonable result that

contravenes the plain language of the statute.

III

¶178 Finally, I address the majority's conclusion that

Denny's motion for post-conviction testing does not entitle him

to court-ordered testing pursuant to Wis. Stat. § 974.07(7)(a)2.

According to the majority, Denny has failed to meet the

reasonably probable standard. It determines that "[e]ven if

exculpatory DNA testing results were available before

prosecution and conviction, we are unable to conclude that it is
reasonably probable that Denny would not have been prosecuted or

convicted because of his crime." Id., ¶81.

¶179 The majority begins by correctly stating that for the

purposes of this analysis, we are to assume that if DNA testing

were to occur, the results would be exculpatory. Id., ¶76. It

errs, however, when it denies Denny the opportunity to test

potentially exculpatory evidence by failing to acknowledge how

the witness testimony could be undermined by exonerating DNA-
evidence.

16
 No. 2015AP202-CR.awb

¶180 Rather than analyze the testimony against Denny in the

context of exculpatory physical evidence, the majority rests its

analysis on the broad assertion that "[t]he evidence

incriminating Denny was, to put it mildly, extensive." Id.,

¶77; see also id., ¶81 (citing State v. Denny, 2016 WI App 27,

¶86, 368 Wis. 2d 363 (Hagedorn, J., concurring in part and

dissenting in part) ("As put by the separate writing below,

'[t]he evidence was vast, overwhelming, and damning. It was not

even close.'")).

¶181 Although the majority opinion begins with an expansive

exposition of facts, its analysis relies on a brief summary of

the conflicting testimony of multiple unreliable witnesses in

denying Denny's motion for testing. According to the majority,

"[t]estimony indicated that Denny confessed, made inculpatory

statements to, and took inculpatory actions in front of,

multiple witnesses." Id., ¶77.

¶182 The majority's reliance on the "extensive" and

"overwhelming" evidence presented against Denny is misplaced.
It ignores the reality that by definition his conviction was

premised on strong evidence of guilt. Denny, like all convicted

persons who have been exonerated after DNA testing, was found

guilty beyond a reasonable doubt. Additionally, the majority

ignores the ways that witness testimony is undermined by

exonerating DNA-evidence.

¶183 Denny argues that three types of DNA test results

would create a reasonable probability of a different result:
(1) DNA that matches a convicted offender; (2) DNA that excludes

17
 No. 2015AP202-CR.awb

Denny and his brother Kent on all items; or DNA on multiple

items matching the same unknown third party ("redundant DNA").

¶184 The majority dispenses with a DNA result that matches

a convicted offender or multiple items matching the same unknown

third party by agreeing with the circuit court that "Mohr's

killing has never been presented as a single-perpetrator

crime . . . " Id., ¶78. Although this is true, the vast

majority of the evidence against Denny was testimony in which

Denny and Kent were the only perpetrators. In a handful of

accounts, an individual named Leatherman was also implicated.

¶185 Contrary to the majority's assertion, DNA evidence

matching an unknown third party or a convicted offender would

undermine every piece of testimony in which Denny and Kent were

presented as the only two perpetrators of the crime. The

majority does not acknowledge this possibility. Instead it

speculates that if more than one person committed the crime,

finding a third person's DNA could not change the result because

any number of people could have committed the crime in addition
to Kent and Denny.

¶186 Further, the majority contends that the absence of DNA

belonging to Denny and Kent would not be "particularly

compelling." Id., ¶78. The majority dismisses the effect of

exculpatory evidence excluding both Denny and Kent because there

was no single account of what transpired in this case and

various inconsistencies among the accounts of the witnesses. As

discussed above, however, Denny and Kent were implicated in
every account of the crime.

18
 No. 2015AP202-CR.awb

¶187 Excluding both brothers would undermine all of the

testimony introduced against Denny in which both brothers played

a role in the crime. Given the obvious struggle and the violent

crime scene in which evidence containing DNA was spread

throughout the bedroom and into the hallway, it is reasonably

probable that the result at trial would have been different if

there was no physical evidence connecting Denny and Kent to the

crime.

¶188 The majority even contends that the "various

inconsistencies between the accounts of the witnesses actually

serves to insulate Denny's conviction." Id., ¶78. This strains

credulity, given the fact that the witnesses were unreliable in

various ways, admitting to drug and alcohol use at relevant

times and given grants of immunity so that they would testify.

Rather than weigh the effect of exculpatory DNA evidence against

this unreliable testimony, the majority contends that it is not

persuaded by this argument because the jury was not. Id., ¶80.

This ignores the essential fact that the jury, in weighing the
testimony of the witnesses, was not presented with exculpatory

DNA evidence.

¶189 Ultimately, the majority's summary of conflicting

testimony does not support its conclusion. Given the various

inconsistencies in the testimony from unreliable witnesses, it

is reasonably probable that exculpatory DNA results would have

lead to a different outcome.
IV
¶190 In sum, the majority opinion offers no persuasive

legal, logical or factual reason for its decision to overrule
19
 No. 2015AP202-CR.awb

Moran. Instead it discards the doctrine of stare decisis,

unearths a test never before used to justify overruling

precedent, "imagine[s]" a statutory purpose, rewrites the

statute and ultimately ends with an absurd result. And for

what?

¶191 As we learned at oral argument, only a handful of

motions for post-conviction DNA testing are filed each year.

But for the handful of potentially innocent people, the

majority's decision limiting access to post-conviction DNA

testing is devastating.

¶192 Daryl Dwayne Holloway's recent exoneration provides a

compelling example of how Moran's interpretation of the statute

worked well in practice for both the State and defendants. On

October 5, 2016, three weeks before oral argument in this case,

Holloway was exonerated based on new DNA evidence after spending

24 years in prison. At the request of counsel, the State

reviewed the evidence against Holloway and agreed to DNA testing

pursuant to Wis. Stat. § 974.04(6)(a). "In collaboration with
the District Attorney's Office, the Wisconsin Innocence Project

had new DNA testing done." The testing results exonerated

Holloway and "[t]he Milwaukee District Attorney's office and the

Wisconsin Innocence Project drafted a stipulation agreeing that

Holloway's conviction should be vacated . . . ."10

¶193 The prosecutors were praised for taking on the case

and serving as "ministers of justice, not just advocate[s] for

10
Innocence Project, Daryl Dwayne Holloway,
http://www.innocenceproject.org/cases/daryl-dwayne-holloway/.

20
 No. 2015AP202-CR.awb

convictions."11 Given the majority's approach, no such accolades

are deserved here.

¶194 If the majority opinion were the law when prior

exonerees sought post-conviction DNA testing, who knows if some

would still be serving time in prison for crimes they never

committed. Rather than retaining an established statutory

pathway enabling a search for the truth, the majority blocks it

and provides yet another avenue for sustaining convictions——even

potentially wrongful convictions.

¶195 Before a jury begins its deliberations, the circuit

judge instructs: "Let you verdict speak the truth, whatever the

truth may be." Such an instruction falls on the deaf ears of

the majority. By erroneously limiting access to post-conviction

DNA testing, it impedes the criminal justice system's search for

truth.

¶196 Contrary to the majority, I would adhere to this

court's unanimous decision in Moran. The plain meaning of Wis.

Stat. § 974.07(6) gives the defendant the right to test, at his
own expense, evidence containing biological material that is

relevant to the investigation or prosecution that resulted in

his conviction. Additionally, the majority errs when it denies

Denny the opportunity to test potentially exculpatory evidence

by failing to acknowledge how the witness testimony could be

undermined by exonerating DNA-evidence.

11
Ashley Luthern, Milwaukee man exonerated by DNA after 24
years in prison, Milwaukee Journal Sentinel, Oct. 5, 2016,
http://www.jsonline.com/story/news/crime/2016/10/05/milwaukee-
man-exonerated-dna-after-24-years-prison/91615854/.

21
 No. 2015AP202-CR.awb

¶197 Accordingly, I respectfully dissent.

¶198 I am authorized to state that SHIRLEY S. ABRAHAMSON

joins this dissent.

22
 No. 2015AP202-CR.awb

1