State v. Charles Edward Hennings

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Appeal No. 2012AP2229-CR Cir. Ct. No. 1999CF2788

WISCONSIN COURT OF APPEALS

DISTRICT I
STATE OF WISCONSIN,
FILED
PLAINTIFF-RESPONDENT,
y. ocT 3, 2013
CHARLES EDWARD HENNINGS, clerk oe Supreme eure

DEFENDANT-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Lundsten, Higginbotham and Kloppenburg, JJ.

This case concerns the construction of the statutory test for
postconviction deoxyribonucleic acid (DNA) testing at public expense.
Specifically, this case hinges on the proper interpretation of the language of WIS.
STAT. § 974.07(7)(a)2.' The State argues, and Judge Richard J. Sankovitz of the
Milwaukee County Circuit Court agreed, that the interpretation urged by Charles
Hennings, the defendant, could result in an unreasonably high volume of
speculative motions for ultimately non-exculpatory postconviction DNA testing at
public expense, contrary to the intent of the legislature as expressed in the statute

as a whole.

' All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise
noted.

No. 2012AP2229-CR
2
Because the resolution of this dispute is of statewide significance
and will have statewide impact on the courts, law enforcement, criminal
defendants, crime victims and, potentially, a significant effect on the functioning
of the State Crime Laboratory, we certify this appeal to the Wisconsin Supreme
Court for its review and determination.
Background
Charles Hennings was convicted of felony murder after a second
trial, and sentenced to a sixty-year prison term. He filed a motion for
postconviction DNA testing under WIS. STAT. § 974.07(2) and (7)(a), requesting
testing of the evidence collected from the scene of the victim’s murder. He sought
to have the genetic profiles obtained from the DNA testing compared with the
DNA profiles of offenders stored in DNA databanks. Hennings asserted that
“‘redundant profiles,’” meaning DNA of the same person found on more than one
of the items, would establish a pattern pointing to another person “who had ‘no
innocent reason for leaving the evidence behind.’”
The circuit court denied Hennings’ motion for DNA testing at public
expense, but granted his request to conduct the DNA testing at his own expense.
The circuit court’s resolution of Hennings’ motion turned on its interpretation of
the requirements of WIS. STAT. § 974.07(7)(a). As discussed below, the circuit
court adopted a view of the statute advanced by the State on appeal. This
interpretation led the court to deny Hennings’ motion because Hennings failed to
demonstrate a sufficient probability that the results of the DNA testing would be
exculpatory.

No. 2012AP2229-CR
3
Discussion
WISCONSIN STAT. § 974.07(2) provides that at any time after being
convicted a person may move for an order requiring DNA testing of evidence that
meets certain conditions, including that “[t]he evidence is relevant to the
investigation or prosecution that resulted in the conviction.” WIS. STAT.
§ 974.07(2)(a). A movant who meets the conditions in § 974.07(2) is entitled to
DNA testing at public expense if the movant meets certain additional conditions,
including that, “[i]t is reasonably probable that the movant would not have been
prosecuted [or] convicted ... for the offense at issue in the motion under sub. (2), if
exculpatory [DNA] testing results had been available before the prosecution [or]
conviction ... for the offense.” WIS. STAT. § 974.07(7)(a)2.2
2 WISCONSIN STAT. § 974.07(7)(a)2. is a subdivision of § 974.07(7)(a), which states:
A court in which a motion under sub. (2) is filed shall order
forensic [DNA] testing if all of the following apply:
1. The movant claims that he or she is innocent of
the offense at issue in the motion under sub. (2).
2. It is reasonably probable that the movant would
not have been prosecuted [or] convicted … for the offense
at issue in the motion under sub. (2), if exculpatory [DNA]
testing results had been available before the prosecution
[or] conviction … for the offense.
3. The evidence to be tested meets the conditions
under sub. (2) (a) to (c).
4. The chain of custody of the evidence to be tested
establishes that the evidence has not been tampered with,
replaced, or altered in any material respect or, if the chain
of custody does not establish the integrity of the evidence,
the testing itself can establish the integrity of the evidence.

No. 2012AP2229-CR
4
Hennings argues that the plain language of WIS. STAT.
§ 974.07(7)(a)2. requires the court to presume that the DNA testing results will be
exculpatory and then to assess whether such presumed exculpatory results would
lead to a reasonable probability that he would not have been prosecuted or
convicted. Hennings also argues that the circuit court’s interpretation of
§ 974.07(7)(a)2., which requires him to show a reasonable probability that the
results of the DNA testing will be exculpatory, defies the plain language and the
purpose of the statute.
The circuit court observed, “[i]f the meaning of the statute is as plain
as grammar suggests, there isn’t much more to talk about ….” We understand the
circuit court to have been suggesting that a grammatically correct interpretation of
WIS. STAT. § 974.07(7)(a)2. appears to require a court to presume that the DNA
testing results will be exculpatory. This presumption flows from the italicized
language in this quote from the statute: “It is reasonably probable that the movant
would not have been prosecuted [or] convicted ... if exculpatory [DNA] testing
results had been available.” (Emphasis added.)
According to the State and the circuit court, Hennings’ grammatical
reading of WIS. STAT. § 974.07(7)(a)2. leads to absurd results and renders other
sections of the statute superfluous. The State argues that the plain language
interpretation of § 974.07(7)(a)2. leads to absurd results because:
If the court must presume to be “exculpatory” any
piece of evidence obtained by police from a crime scene
that is arguably “relevant to the investigation or
prosecution” and might have someone’s DNA on it, there is
no practical limit to mandatory postconviction testing at
public expense. Taken literally, this approach would
require postconviction DNA testing in every single case
where items of evidence that conceivably could contain
DNA are recovered from a crime scene.

No. 2012AP2229-CR
5
The State contends that this will “impose an intolerable burden on law
enforcement agencies and the State Crime Lab.”
Whether or not the State is correct in its prediction that Hennings’
interpretation would require testing of all items recovered from a crime scene that
could “conceivably” contain DNA evidence, we understand both the State’s and
the circuit court’s concern to be that Hennings’ interpretation could not have been
intended by the legislature because it would unreasonably burden the already
strained resources of the State Crime Laboratory.
Hennings counters that his reading of the statute will not so readily
require DNA testing at public expense, because the evidence must still be relevant
to the investigation or prosecution that resulted in conviction under WIS. STAT. §
974.07(2)(a). Hennings adds that “presuming favorable results is never alone
enough for mandatory testing. The statute still requires an additional showing of a
reasonable probability of a different result.” (Emphasis omitted.) Relying on
State v. Hudson, 2004 WI App 99, ¶¶19-21, 273 Wis. 2d 707, 681 N.W.2d 316
(finding that the defendant could not demonstrate a reasonable probability that he
would not have been prosecuted or convicted even if exculpatory DNA testing
results were presumed, “given the overwhelming evidence of his guilt”), Hennings
argues that presuming favorable results does not mandate DNA testing at public
expense in every case, and that floodgates have not been opened in other states
where exculpatory results are presumed.

No. 2012AP2229-CR
6
The State also argues that the plain language interpretation of WIS.
STAT. § 974.07(7)(a)2. renders § 974.07(6) and (7)(b) superfluous.3 According to
the State, if exculpatory DNA testing results are presumed, a defendant must
merely make the “threshold showing that the evidence to be tested is ‘relevant to
the investigation or prosecution that resulted in the conviction’” to satisfy the
requirements of § 974.07(7)(a). The State contends that nearly all defendants will
be able to make this showing, and will therefore be eligible for mandatory DNA
testing at public expense. Consequently, no defendants will seek testing at their
own expense under § 974.07(6) or at the discretion of the court under
§ 974.07(7)(b), rendering those portions of the statute superfluous.
Hennings counters that his reading of the statute does not make WIS.
STAT. §§ 974.07(6) or 974.07(7)(b) superfluous. A defendant who moves for
DNA testing at public expense under § 974.07(7)(a) must in addition to showing
that the evidence is relevant, also show that it is reasonably probable that he or she
would not have been prosecuted or convicted had exculpatory DNA testing results
been available before trial. WIS. STAT. § 974.07(7)(a)2. Again relying on
Hudson, 273 Wis. 2d 707, ¶¶19-21, Hennings argues that not every defendant will
3 WISCONSIN STAT. § 974.07(6) applies to exchanges of information related to the
sharing of evidence containing biological material and of findings related to testing of that
material between the district attorney and the movant, and is the provision by which defendants
may obtain DNA testing at their own expense. This provision requires only that “the information
being disclosed or the material being made available is relevant to the movant’s claim.” The
circuit court found that Hennings satisfied this requirement here.
WISCONSIN STAT. § 974.07(7)(b) authorizes (“may”), but unlike WIS. STAT.
§ 974.07(7)(a) does not require (“shall”), a circuit court to order DNA testing at public expense if
the defendant shows that it is reasonably probable that “the outcome of the proceedings that
resulted in the conviction ... would have been more favorable” had DNA testing results been
available before the defendant was prosecuted. This provision does not contain the presumption
that the DNA testing results be exculpatory, and does not use the term “exculpatory” at all.

No. 2012AP2229-CR
7
be able to show that exculpatory DNA testing results would have changed the
outcome of the case so that he or she would not have been prosecuted or
convicted. Defendants who cannot make that additional showing may therefore
have recourse to DNA testing at their own expense under § 974.07(6).
Defendants may also have recourse to WIS. STAT. § 974.07(7)(b),
which permits a circuit court in its discretion to order DNA testing at public
expense if it is reasonably probable that the results of the testing would lead to a
more favorable outcome of the proceedings that led to the conviction. The parties
agree that a defendant who can show that the defendant would have benefited in
terms of a reduced charge or a lesser sentence, may seek testing at public expense
at the court’s discretion under § 974.07(7)(b). Yet, the State argues that a
defendant will never need to resort to § 974.07(7)(b) if the DNA testing is
presumed exculpatory under § 974.07(7)(a)2. As the circuit court noted, “if the
evidence in the government’s possession [must be presumed] exculpatory, who
cares if it is mitigatory?”
The circuit court rejected Hennings’ “grammatical” construction in
favor of an interpretation that the court reasoned “preserves and makes sense of
more of the statute.” The circuit court based its interpretation in part on an
understanding of the term “exculpatory” as embracing the concept of “tending” to
exonerate, or likely to be true. Such an understanding, the court reasoned, would
preserve the independent meaning of other parts of the statute, from requiring that
the court then assess whether the tendency to be exculpatory is sufficient to
establish a reasonable probability that the defendant would not have been
prosecuted or convicted (under WIS. STAT. § 974.07(7)(a)2.), to directing
defendants unable to show any tendency to be exculpatory to the other subsections

No. 2012AP2229-CR
8
that allow testing, at private or public expense, under other circumstances (under
WIS. STAT. § 974.07(6) and (7)(b)).
The circuit court ultimately grounded its interpretation on the
concern that Hennings’ “grammatical” interpretation would lead to absurd results,
adding to the burden of the already overburdened court system without effectively
serving the statute’s purpose. The circuit court believed that construing the statute
as urged by Hennings would lead to absurd results because it would be too easy
for defendants to obtain DNA testing at public expense in cases where there was
no reasonable likelihood of there being exculpatory test results. As the court
stated:
The statute applies to any and all evidence “relevant to the
investigation or prosecution that resulted in the conviction”
that is still in the possession of the government. WIS. STAT.
§§ 974.07(2)(a), (b). Think about how much evidence
tends to be collected by the police as they investigate a
crime scene, and how much of it ultimately ties any suspect
to the crime.
It is often the case that when the police arrive at a
crime scene – say, a shooting that appears to have erupted
from a robbery or a botched drug deal – they know little of
the details of the shooting. So they collect and preserve
everything that might help them solve the crime, every item
that seems like it might relate to the crime they are
investigating. They pick up all kinds of items lying about
in the vicinity. They pick up obvious (or seemingly
obvious) items such as weapons and shell casings and
clothing. And they also pick up personal items that may
not have been instrumental in the crime, but nonetheless
may link a suspect to the scene, such as cell phones and
sunglasses and plastic bags and pipes and bottles and
innumerable other items.
Frequently, however, these potential leads do not
pan out. The presence of these items at the scene of the
crime is merely coincidental. Compare the items listed on
the typical police inventory marked as a trial exhibit in a
typical shooting case with the items that actually are
introduced as evidence. It is common for such inventories

No. 2012AP2229-CR
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to list many more items than ever come into play. Of items
that are collected by the police but not introduced at trial,
their presence at a crime scene may say much more about
the prevalence of other crime in the neighborhood, or of the
general state of litter, than about who committed the crime.
But because these items seemed relevant at the
outset of the investigation and have found their way into
the possession of the police, they are available for DNA
testing. And if it is presumed that these items contain DNA
evidence that exculpates the defendant, then all of these
items must be tested. The potential absurdity of this
arrangement is not hard to conceive: Consider a case
where none of the physical evidence collected by the police
at the scene of a shooting turns out to be inculpatory, yet
because all of the evidence is “relevant to the
investigation,” WIS. STAT. § 974.07(2)(a), and all of it is in
the possession of the government, WIS. STAT.
§ 974.07(2)(b), if all of it is presumed exculpatory, as Mr.
Hennings contends, then all of it must be tested, at public
expense.
We acknowledge that the State’s and the circuit court’s warnings of
unreasonably high numbers of motions for ultimately unfounded DNA testing at
public expense are mere assertions, and we cannot discern whether such absurd
results will follow from Hennings’ construction of the statute. Nevertheless, if the
State and circuit court are correct, then the prospect of such a significant statewide
impact warrants guidance from the Wisconsin Supreme Court. For the reasons
above, we conclude that the dispute over the test to be applied when a defendant
seeks DNA testing at public expense is a matter of statewide concern which is in
need of prompt and final resolution by the Wisconsin Supreme Court.

No. 2012AP2229-CR