Conviction reversed due to many errors

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“While we take no position whether the hypnosis session violated Armstrong’s requirements, counsel should have at least presented available expert testimony challenging the hypnosis session and the reliability of Rene’s testimony.” Hon. Thomas Cane Wisconsin Court of Appeals

On Aug. 12, the Wisconsin Court of Appeals held that a defendant is entitled to a new trial where his counsel: (1) failed to introduce DNA test results that excluded him; (2) failed to obtain and present independent medical testimony regarding the victim’s death; and (3) failed to obtain and present expert testimony challenging the hypnotically refreshed testimony of the crime’s only witness.

On Feb. 26, 2000, at about 5:45 a.m., Kathy Thompson’s strangled body was found on a curb on Laurel Street in Eau Claire. Thompson had last been seen walking home from jail around 3 a.m. She and her husband, Robert Miles, had both been taken to jail as a result of a domestic dispute, although Miles was kept overnight on a probation hold.

They had been married the day before, and had been seen fighting at their wedding reception. When leaving the jail,

Thompson refused a police officer’s offer of a ride, saying she wanted to walk home. She began walking in the direction of her apartment, which was a few blocks away and close to the apartment of an ex-boyfriend, Evan Zimmerman.

After a year-long investigation, Zimmerman was charged with Thompson’s murder. At trial, the State’s theory of the crime was that Thompson had met up with Zimmerman after leaving jail, probably at his apartment. The State argued that Thompson’s marriage and her rejection of Zimmerman had angered him and led him to kill her. Finally, the State claimed Zimmerman transported Thompson’s body to Laurel Street upright in the passenger seat of his van.

The trial evidence consisted of the following: (1) Zimmerman’s inconsistent alibis, incriminating statements to police, and suspicious behavior and statements to others on the morning Thompson’s body was discovered; (2) the opportunity he had to kill her; (3) evidence that Zimmerman was obsessed with Thompson; (4) medical testimony regarding the cause of Thompson’s death and the circumstances surrounding it; and (5) the hypnotically refreshed testimony of Brice Rene, who said he saw a van similar to Zimmerman’s with a woman in the passenger seat near the site and close to the time Thompson’s body was discovered.

Zimmerman was found guilty in a trial before Eau Claire County Circuit Court Judge Eric J. Wahl. He filed a motion for post-conviction relief, but the circuit court denied the motion.

Zimmerman appealed, and the court of appeals reversed in a decision by Judge Thomas Cane, finding that Zimmerman received ineffective assistance of counsel, and was prejudiced as a result.

DNA Evidence

The court concluded that Zimmer-man’s counsel was ineffective in several respects. First, counsel failed to present DNA evidence that excluded Zimmer-man.

At trial, the State submitted numerous items for DNA testing, including cigarette butts found near Thompson, hairs found on her pants and sweater, and tissue samples taken from under her fingernails. DNA extracted from these sources was compared against profiles of Zimmerman, Thompson, and Miles. Zimmerman was excluded as the source of any of these items, and all three were excluded as the source of the hairs taken from the pants and the cigarette butts.

At trial, neither the State nor counsel asked questions about the hairs found on Thompson’s pants or the fingernail scrapings and, on direct examination, the officer presenting the evidence testified that no evidence found at the scene provided any insight into the crime. At the postconviction motion hearing, counsel testified he had no strategic reason for not introducing this evidence, admitted he made a mistake by not doing so, and the court of appeals agreed.

The court reasoned, “[T]he only testimony regarding the DNA samples taken from the scene was that they provided no insight into the crime. At best, this statement means the samples were inconclusive. This, however, was not the case. Instead, the samples taken from Thompson’s body and the surrounding area excluded Zimmerman; and one sample excluded Thompson, her husband, and Zimmerman as sources. Counsel’s failure to challenge [the officer’s] testimony with this data had the effect of essentially stipulating that the evidence was inconclusive. Instead, it was potentially exculpatory evidence that Zimmerman was entitled to have the jury
hear.”

Medical Testimony

The court also found that Zimmerman’s counsel was deficient for failing to present alternative medical testimony.

At the postconviction hearing, Dr. Jeffery Jentzen testified that a telephone cord found in Zimmerman’s van, which the State’s medical witness asserted could have been the murder weapon, in fact could not have been, because the mark left on Thompson’s neck was a wide, webbed, fabric-like pattern and contained a buckle mark, and was therefore inconsistent with the telephone cord.

Jentzen also testified that the nasal secretion pattern was consistent with being formed while the body was lying down, rather than sitting up, that Thompson’s wounds were inconsistent with being formed in a vehicle and being strangled by someone in the driver’s seat. The State’s witness testified that hemorrhages on Thompson’s body could have been caused by being pushed against a van door or window by a person in the driver’s seat, whereas Jentzen concluded this was not the case.

Hypnosis

Finally, the court concluded that trial counsel’s handling of Rene’s hypnotically refreshed testimony was deficient as well.

In State v. Armstrong, 110 Wis. 2d 555, 571, n.23, 329 N.W.2d 386 (1983), the Wisconsin Supreme Court set forth nine factors for trial courts to consider when deciding whether to admit hypnotically refreshed testimony.

However, after trial counsel unsuccessfully moved to prevent Rene from testifying on the basis that the testimony would be irrelevant and prejudicial, he never argued that the hypnosis session did not comply with Armstrong. Nor did he retain an expert to testify that the hypnosis session did not comply with Armstrong and other standards for such testimony.

Discussing these errors, the court stated, “If the trial court did not suppress the testimony, an expert would have been able to challenge the hypnotic session as unduly suggestive. … While we take no position whether the hypnosis session violated Armstrong’s requirements, counsel should have at least presented available expert testimony challenging the hypnosis session and the reliability of Rene’s testimony.”

Prejudice

Having found trial counsel deficient in several respects, and examining heir cumulative effect, pursuant to State v. Thiel, 2003 WI 111, the court concluded there is a reasonable probability that, but for the errors, the result would have been different.

The court concluded, “The evidence against Zimmerman, while sufficient to allow a jury to reach a guilty verdict, was far from overwhelming. Counsel’s deficiencies relate to evidence that, if properly challenged, could have reasonably called Zimmerman’s guilt into question.”

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The court noted, “The failure to introduce the exclusionary DNA evidence contributed to the prejudice because, if introduced, it might have allowed the jury to reach the conclusion that because none of Zimmerman’s DNA was found at the scene or on Thompson, he was not responsible for her murder. Instead, all the jury heard was that a cigarette butt found near the body did not provide any insight into the crime.”

The court added, “Similarly, by not seeking independent medical testimony, counsel allowed only the propositions that the telephone cord may have been used in the murder and that Thompson may have been injured in the van to go to the jury. Had counsel considered seeking independent medical testimony, he could have offered the jury testimony that would have allowed them to reject any connection between McGee’s conclusions and Zimmerman.”

The court concluded, “Finally, we conclude that counsel’s failure to challenge Rene’s hypnotically refreshed testimony by attempting to keep it out under Armstrong or by seeking an expert to challenge the reliability of the hypnotic session also contributed to the prejudice. Rene was the only witness placing Zimmerman in the area where Thompson’s body was found. While we agree that Rene’s testimony was contradictory, the potential inferences from it could very well have led the jury to its conclusion that Zimmerman was responsible for Thompson’s murder. Given the ‘popular misconception that hypnotized people always tell the truth,’ Armstrong, 110 Wis. 2d at 573, the jury may have given undue weight to any inferences they might have drawn from Rene’s testimony. Counsel did little to mitigate this concern. He also should have made a stronger attempt to prevent the introduction of Rene’s testimony and, if he failed, sought an expert to challenge the hypnosis session. His failure to adequately challenge the only witness placing Zimmerman in the area where Thompson’s body was found further prejudiced Zimmerman’s defense.”

Accordingly, the court reversed.

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David Ziemer can be reached by email.