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Postconviction Motion Denied

By: Derek Hawkins//January 8, 2019//

Postconviction Motion Denied

By: Derek Hawkins//January 8, 2019//

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jose A. Reas-Mendez

Case No.: 2017AP2452-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Postconviction Motion Denied

Jose A. Reas-Mendez appeals an order denying his 2017 postconviction motion for DNA testing of a jacket, a kitchen knife, and latent fingerprint cards containing fingerprints lifted from the outside window of the victim’s apartment. In 2008, Reas-Mendez was convicted by a jury of armed robbery with the threat of force, armed burglary with a dangerous weapon, and second-degree sexual assault with the use of force. The convictions were in connection with events that occurred in the early morning hours of May 20, 2008, when an intruder sexually assaulted and robbed a 21-year-old college student at knifepoint in her bed and then fled the apartment.  Reas-Mendez appealed the conviction, asserting that his trial counsel had been ineffective for failing to challenge the out-of-court identification procedures as impermissibly suggestive. State v. Reas-Mendez, No. 2010AP1485-CR, unpublished slip op. ¶12 (WI App Aug. 23, 2011). This court concluded that the “pretrial identification was proper” and affirmed. Id., ¶20.

The issue presented in this appeal is what the “reasonably probable” requirement of WIS. STAT. § 974.07(7)(a)2. means. Our supreme court interpreted the “reasonably probable” condition of the postconviction DNA testing statute in State v. Denny, 2017 WI 17, 373 Wis. 2d 390, 891 N.W.2d 144. Jeffrey Denny had sought postconviction DNA testing of twelve items found at the crime scene, and the question presented was whether “[i]t is reasonably probable that [Denny] would not have been prosecuted [or] convicted” of first-degree intentional homicide “if exculpatory [DNA] testing results had been available before the prosecution [or] conviction.” Id., ¶76. The court stated that it was to “assume for purposes of this analysis that if DNA testing were to occur, the results would be ‘exculpatory.’” Id.

Denny had argued that “[t]hree types of DNA test results would create a reasonable probability of a different result: DNA that matches a convicted offender; DNA that excludes Denny and [a co-defendant] on all items; or DNA on multiple items matching the same unknown third party.” Id. Our supreme court concluded that in light of the other evidence presented at trial, exculpatory results “may only reveal the identity of others who may have been involved” but that “[f]inding DNA from persons other than Denny—even convicted offenders—would not prove Denny’s innocence.” Id., ¶78. It concluded that “the absence of DNA belonging to Denny and [the co-defendant] would not be particularly compelling, either.” Id. “The idea that the DNA results Denny seeks would tip the scales and cause police or a jury to reject the substantial evidence against Denny is simply conjecture.” Id., ¶80. It therefore affirmed the order denying his motion.

This case presents the same question, and we apply the analytical framework set out by Denny. We start by assuming that the results of the testing of the jacket, knife, and latent prints would be “exculpatory” but we interpret what that assumption means in the context of the evidence in this case. We consider the evidence supporting Reas-Mendez’s conviction, including that he was found hiding in an attic of a building a hundred yards away from the victim’s apartment about eight hours after the crime, and, most significantly, that the victim positively identified him with certainty in a procedure that we previously ruled was not impermissibly suggestive. We conclude that in light of the strength of the evidence, even if DNA test results excluded him from all three items, it is not “reasonably probable” that Reas-Mendez would not have been prosecuted or convicted. See id., ¶53. We therefore affirm.

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Derek A. Hawkins is a trademark corporate counsel attorney for Harley-Davidson, where he concentrates his practice on brand protection and strategy.

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