Criminal Procedure — new trials — newly discovered evidence

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Wisconsin Supreme Court

Criminal

Criminal Procedure — new trials — newly discovered evidence

“There is not a reasonable probability that a jury, looking at both the evidence presented at trial and the new digital photogrammetry evidence, would have a reasonable doubt as to the defendant’s guilt.

“The circuit court correctly balanced the photogrammetry evidence against the evidence presented at trial. The court considered the two witness identifications at trial of Avery as the robber. Hamdan testified that before he was shot, he looked at Avery two times from two to three feet away. Hamdan identified Avery as the man who kicked his cousin and then stood by the door. Hamdan’s testimony was corroborated by events in the video. While Simmons recanted her identification, the circuit court considered testimony of police officers that Simmons identified Avery in prior interviews, that Simmons knew Avery from the neighborhood, and that Simmons was fearful to testify against Avery. In addition, Avery provided a detailed confession. Avery confessed to details of the robbery that were not on the video. He knew the names or nicknames of the other robbers, and he told police what the robbers did before and after the robberies. Avery wrote an apology and also called his mother after his confession to apologize to her that he had ‘gotten involved.’ While the video was used at trial, it was not used to identify Avery. In fact, the State specifically asked the jury not to identify Avery from the video because it was of such poor quality.”

“Avery’s defense included alibi witnesses and his own testimony recanting his confession. The circuit court noted that Avery’s attorney “did an admirable job attacking the circumstances of the confession to the jury and they didn’t buy it.” Three witnesses testified to seeing Avery at North Division High School watching basketball shortly before the Malone’s robbery. Two other witnesses testified that Avery was at home during the time frame of the Attari robbery. Avery also testified to his whereabouts during both robberies and to why he recanted his confession. The jury heard all of this evidence, and they still found him guilty.”

“The State’s evidence in this case was far stronger than the State’s evidence in McCallum, Edmunds, or Plude. In those cases, where the court afforded a new trial based on newly discovered evidence, the newly discovered evidence struck at the heart of the State’s evidence at trial. Quite unlike those cases, the photogrammetry evidence here does not create a reasonable probability that a jury, looking at the old evidence and the newly discovered evidence, would have a reasonable doubt as to Avery’s guilt.”

Reversed.

2010AP1952 State v. Avery

Ziegler, J.

Attorneys: For Appellant: Findley, Keith A., Madison; Bushnell, Tricia J., Madison; For Respondent: Balistreri, Thomas J., Madison