Criminal Procedure — new trials — newly discovered evidence

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — new trials — newly discovered evidence

Where a third party committed a similar crime nearby, and allegedly confessed to the crime for which the defendant is imprisoned, a new trial is warranted.

“In addressing whether the newly discovered evidence presented by Vollbrecht entitled him to a new trial, the postconviction court wrote: The Court has considered all of the evidence presented at Vollbrecht’s trial, and the evidence adduced at the most recent, lengthy post-conviction motion hearing, including the demeanor of all of the witnesses at the hearing. The Court finds there is a reasonable probability that after a jury considered all of the evidence presented at Vollbrecht’s trial and the newly discovered evidence of Brown’s specific and distinct motive—to fasten women to trees with a chain, to shoot them, and to burn them—and Brown’s alleged confessions to the Hackl homicide, it would have a reasonable doubt that Vollbrecht is guilty. Having reviewed the record and deferring to the postconviction court’s extensive findings of fact, we independently conclude that there is a reasonable probability that a jury, looking at both the old evidence and the new evidence, would have a reasonable doubt as to Vollbrecht’s guilt.”

“During the first trial, Vollbrecht was the only suspect in Hackl’s murder. The newly discovered evidence would now present the jury with a viable alternative suspect: an individual who had expressed a desire to commit such a crime, who had confessed to committing a similar crime, and—if Pepin and Schultz are deemed credible—who had allegedly confessed to committing this crime. The State sets forth in great detail the circumstantial evidence against Vollbrecht, including his statements as to his whereabouts on the morning of the homicide. We nevertheless conclude that the newly discovered evidence establishes a reasonable probability that a jury would have a reasonable doubt as to Vollbrecht’s guilt. See Plude, 310 Wis. 2d 28, ¶33.”

Affirmed.

Recommended for publication in the official reports.

2011AP425 State v. Vollbrecht

Dist. II, Sauk County, Bauer, J., Neubauer, J.

Attorneys: For Appellant: Moeller, Marguerite M., Madison; For Respondent: Barrett, Patricia A., Baraboo; For Respondent: Hurley, Stephen P., Madison; Findley, Keith A., Madison; Guenther, Erik R., Madison; Meyn, Ion B., Madison