2003AP561-CR State v. Moran

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This case involves the 1994 multiple stabbing of Corrine Pinchard, and the attempted stabbing of Jacob Jensen, by Pinchard’s former boyfriend, defendant James Moran. The issue at bar centers around blood samples collected at the crime scene. In their briefs, the parties focused almost exclusively on § 974.07(7), pertaining to court-ordered DNA testing. However, at oral argument, Moran’s counsel directed our attention to § 974.07(6), under which a movant may request certain biological material from the district attorney.

“The scope of § 974.07(6)(a)2. is problematic because § 974.07 does not define the term ‘biological material.’ A newly adopted supreme court rule regarding record retention, SCR 72.01(46m), provides in part: ‘Any criminal case exhibit identified by the parties, the clerk, or the court as containing biological material and that remains in the court’s custody shall be retained for 50 years after entry of final judgment or until the court otherwise orders the disposition of the evidence under s. 974.07, Stats.’ This rule suggests a process for identifying exhibits that must be retained. However, Wis. Stat. § 974.07(6)(a)2. is more open ended, as it requires a district attorney to disclose ‘physical evidence . . . that contains biological material or on which there is biological material’ that was obtained and retained before the above-cited rule was adopted as well as ‘physical evidence’ that was never used at a trial.”

The State argues that under § 974.07(6)(a)2. it need make available only materials that have already been tested. For good or ill, the plain language of the statute leads us to a different conclusion. We would have to add language “that has been tested” to the statute in order to justify the State’s interpretation.

Subsection (2) imposes three requirements. First, the evidence containing biological material must be “relevant to the investigation or prosecution that resulted in the conviction.” Second, the evidence must be in the government’s possession. Third, the evidence must not have been subjected to forensic DNA testing or, if so tested, “may now be subjected to another test 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.” The third requirement listed in subsection (2) provides an additional reason why subsection (6) does not apply only to material that has already been tested.

“Assuming that the State possesses material that the movant wishes to test, the circuit court must undertake the three-pronged analysis in Wis. Stat. § 974.07(2). If these requirements are satisfied, the plain language of the statute dictates that the movant should receive access to the evidence, and may subject the material to DNA testing at his or her own expense. At that point, the circuit court may set conditions on the testing pursuant to Wis. Stat. § 974.07(6)(c).”

Because the court did not consider Moran’s motion under the standards set out in § 974.07(2) and (6), the circuit court proceeded on the wrong theory of law. Accordingly, we remand this case to the circuit court in order to allow it to analyze Moran’s motion under the proper standard.

“The harsh reality of life is that some persons who have been convicted of crime may have the means to hire attorneys or investigators post-conviction under circumstances that would never justify the expenditure of public money. The court is being asked in this case to prevent a person from conducting DNA testing at his own expense. 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. We encourage the legislature to revisit Wis. Stat. § 974.07 to define undefined terms, set limits to the evidence that must be provided, and give courts clear guidelines in procedure.”

WILCOX, J. (CONCURRING): The plain language of § 974.07(6) leads me to reluctantly join the majority opinion. I write separately, however, to address the serious concerns raised by the broad language in Wis. Stat. § 974.07(6) (2001-02), and I strongly urge the legislature to take a hard look at the practical consequences of this subsection.

“I fully acknowledge the value and importance of DNA evidence and testing to the criminal justice system. However, in light of this court’s holding that recently-discovered DNA evidence not available during trial results in the real controversy not being tried and warrants a reversal of a conviction, see State v. Armstrong, 2005 WI 119, __ Wis. 2d __, __ N.W.2d __, the majority opinion in this case will have far-reaching consequences for the finality of convictions. While I am sensitive to the problem of false convictions, Armstrong and today’s majority opinion have the potential to overburden our justice system and work great mischief for numerous legitimate convictions. …[T]he combined result of Armstrong and the present case is that convicted criminals now have easy access to biological material for DNA testing and a lower threshold to meet to overturn their conviction based on the results of that testing, even if there is a mountain of evidence supporting their conviction….

“Also, I note that the majority opinion seems to open up § 974.07(6) to an attack on equal protection grounds. The majority states that under subsection (6) ‘the movant must conduct any testing of the evidence at his or her own expense.’ Majority op., 3. It would seem that there is no reason why someone who cannot afford to pay for such testing would not be equally entitled to such evidence.”

Court of Appeals, Dane County, Flanagan, J., Prosser, J.

Attorneys:

For Appellant: Colleen D. Ball, Wauwatosa

For Respondent: Daniel J. O’Brien, Peggy A. Lautenschlager, Madison