Criminal Procedure — new trials

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — new trials

Where the trial court weighed the evidence at a motion for a new trial on its own, it usurped the function of the jury.

“In the case at bar, the trial court clearly weighed the expert testimony on its own. It found that the new evidence was ‘simply not going to make a difference’ in a new trial because ‘[i]t’s not like D.N.A. evidence … [i]t’s not like a retraction of a confession … [i]t’s not like when somebody else confesses to a crime.’ In making this finding, the trial court applied the wrong standard and erroneously exercised its discretion. See State v. Plude, 2008 WI 58, ¶31, 310 Wis. 2d 28, 750 N.W.2d 42. A trial court is to determine only whether there is a reasonable probability that the new credible testimony would create a reasonable doubt as to the defendant’s guilt. See Edmunds, 308 Wis. 2d 374, ¶19. It is not the function of the trial court in a motion for a new trial to weigh competing credible evidence. Id., ¶18.”

“In applying the test that the trial court should have used, we conclude that if a jury believes the height of the video suspect as put forth by expert analysis of new video enhancement technology, it is reasonably probable that a reasonable doubt as to Avery’s guilt would exist. The alibi testimony from friends, family members and former coaches, which tends to indicate that Avery was not involved in either robbery, could become more persuasive when the video suspect’s height is considered. The failure of any of the robbery victims to identify Avery in the physical line up conducted within a day or two of the robberies takes on added significance in the context of the evidence that the video suspect is inches shorter than Avery, as does Avery’s initial denial of his involvement in either robbery. As to Avery’s confession, it is reasonably probable that a jury would have a reasonable doubt as to the truth of the confession if it believes that the suspect on the video is shorter than Avery. All of the trial evidence, combined with the new evidence from two experts, each of whom explained their methods of analysis and concluded that the video suspect is several inches shorter than Avery, establishes a reasonable probability that a jury would have a reasonable doubt as to Avery’s guilt.”

Reversed and Remanded.

2010AP1952 State v. Avery

Dist. I, Milwaukee County, Cimpl, J., Kessler, J.

Attorneys: For Appellant: Findley, Keith A., Madison; For Respondent: Loebel, Karen A., Milwaukee; Freimuth, James M., Madison