REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals
affirming an order of the circuit court for Dane County, David T. Flanagan,
Judge. The circuit court denied a
motion by James M. Moran (Moran) for post-conviction deoxyribonucleic acid
(DNA) testing of certain blood samples pursuant to
Wis. Stat. § 974.07 (2001-02),
enacted by the legislature in 2001.
¶2 We granted Moran's pro se petition for review which raised broad
issues about § 974.07, and we appointed Attorney Colleen D. Ball to serve
as Moran's pro bono counsel. Attorney
Ball posed three questions focusing on § 974.07(7). The applicability of § 974.07(6) was
raised at oral argument. After
supplemental briefing by the parties, we determined that this case should be
decided on the basis of § 974.07(6).
¶3 We conclude that the plain language of § 974.07(6) gives a
movant the right to conduct DNA testing of physical evidence that is in the
actual or constructive possession of a government agency and that contains
biological material or on which there is biological material, if the
movant meets several statutory prerequisites.
First, the movant must show that the evidence meets the conditions under
Wis. Stat. § 974.07(2).
Second, the movant must comply with all reasonable conditions imposed by
the court to protect the integrity of the evidence. Third, the movant must conduct any testing of the evidence at his
or her own expense. If a movant seeks
DNA testing at public expense, the movant must proceed under
§ 974.07(7)(a) or (b), and satisfy the heightened requirements in
subsection (7).
¶4 We remand this case to the circuit court to allow it to address
whether Moran's motion satisfies the requirements in § 974.07(2) and (6),
and if it does, to set conditions on the availability and integrity of the
evidence.
I.
FACTS AND PROCEDURAL HISTORY
¶5 Moran met Corrine Pinchard (Pinchard) at an exotic pet store he
owned and operated in Madison. The two
became romantically involved, but their relationship ended. The parties dispute who decided to break off
the relationship. Pinchard eventually
became involved with another man, Jacob Jensen (Jensen), who was also employed
at Moran's pet store.
¶6 At about 1:00 A.M. on June 17, 1994, Pinchard and Jensen were
together in Pinchard's apartment. They
became concerned that Moran would make an unwanted visit to the apartment after
Pinchard received an anonymous phone call from someone pretending to be a
maintenance man for the apartment building.
Pinchard believed she recognized the anonymous caller as Moran. Pinchard knew that the outer back door to
the apartment building had been tied open, and so she and Jensen decided to go
downstairs to shut it. Before leaving
the apartment, Jensen armed himself with a brick he found in Pinchard's
apartment.
¶7 Jensen and Pinchard never made it downstairs. When Jensen opened the stairwell fire door,
he saw Moran on the stairs. The
subsequent events were disputed at trial.
Jensen claimed that Moran charged at him while holding a knife and
pushed him down. According to both
Pinchard and Jensen, Moran then pushed Pinchard into her apartment and locked
the door while yelling that he planned to kill both Pinchard and himself. While Moran and Pinchard were locked inside
the apartment, he stabbed her multiple times.
¶8 Jensen testified that he ran down the hallway to a nearby
apartment. He alerted the occupants of
what was happening and convinced them to call "911." Jensen testified that as he re-entered the
hallway area and began to walk back, Moran emerged from Pinchard's apartment
door. Leaving the apartment, Moran
"charged" Jensen in the hallway, wielding the knife, and attempted to
stab him in the chest. He succeeded
only in slashing Jensen's hand and arm.
Neither Pinchard nor Jensen could recall how or why Moran left the
scene.
¶9 Pinchard and Jensen both testified that after the stabbings, they
did not re-enter Pinchard's apartment.
Instead, they waited for the police in the apartment down the hall where
Jensen had earlier convinced the occupants to dial "911."
¶10 Moran's version of these events was very different. He admitted that he entered the building
through the open back door. He claimed
that after he saw Jensen in the stairwell, he pushed past Jensen to try to
reach Pinchard. Moran claimed that
after he passed Jensen, Jensen struck him in the back of the head with a blunt
object, dazing him. A struggle between
the two men ensued in Pinchard's apartment.
Moran claimed that Pinchard attempted to intervene in the struggle, and
while she did so, she was inadvertently stabbed multiple times.
¶11 Moran also admitted that he "cut" Jensen. Dr. Stuart Stitgen testified that Jensen
suffered permanent muscle damage to his left wrist and that Moran severed
nerves and tendons in Jensen's hand.
Moran also cut Jensen deeply enough that he chipped one of the bones in
Jensen's hand. Moran argued, however,
that he inflicted all these injuries in self-defense while the two men
struggled inside Pinchard's apartment, not in the hallway, as Jensen
claimed.
¶12 Moran admitted that after this altercation, he fled the scene,
discarded his shirt into a storm drain, and threw away his knife. He then either attempted or faked his own
suicide, stole a vehicle, and drove to La Crosse. Upon arriving in La Crosse, he turned himself in to authorities
and confessed to the stabbings, making no mention of self-defense.
¶13 During the investigation of the crime scene, the police obtained
numerous blood samples in Pinchard's apartment, some of which are at issue
here. Specifically, the police obtained
a blood sample from the kitchen floor, a sample from a bloody brick near the
bedroom, and a sample from the bedroom door.
A private detective working for Moran obtained blood samples from the
door of an apartment across the hall.
¶14 On the day of the incident, June 17, 1994, the State charged Moran
with two counts of attempted first-degree intentional homicide, contrary to
§ 939.32(1)(a) and § 940.01(1).
On August 11, 1994, the State amended the complaint, adding the element
of "using a dangerous weapon" (contrary to § 939.63(1)(a)2.) to
each of the two attempted homicide counts and adding one count of taking and
driving a vehicle without the owner's consent in violation of
§ 943.23(2). On January 13, 1995,
the State again amended the complaint, adding two counts of first-degree
reckless injury while using a dangerous weapon in violation of § 940.23(1)
and § 939.63(1)(a)2.
¶15 Attorney Dennis E. Burke was initially appointed to represent
Moran, but he withdrew on the grounds that his continued representation could
result in a violation of the Code of Professional Responsibility.
¶16 Moran thereafter declined counsel and represented himself. The jury trial was held between February 27
and March 3, 1995. During trial, Moran
pled guilty to one count of reckless injury and to the charge of taking and
driving a vehicle without the owner's consent.
¶17 The jury trial on the remaining three counts developed into a
credibility contest among Pinchard, Jensen, and Moran. Essentially, Pinchard and Jensen testified
that the injuries they sustained occurred during separate encounters with
Moran——Pinchard's after Moran locked her inside her apartment with him, and
Jensen's in the hallway after Moran emerged from the apartment. By contrast, Moran testified that all the
injuries to Pinchard and Jensen occurred at the same time, inside the
apartment, while the three of them grappled together.
¶18 While testifying on his own behalf in narrative form, Moran decided
to play for the jury the tape of his confession to the La Crosse police. He was later subjected to devastating
cross-examination by the State. In
addition to exposing the inconsistencies between Moran's trial theory of the
case and his confession to the police, the State successfully introduced
multiple letters and statements in which Moran repeated his confession to the
stabbings.
¶19 In a rambling closing argument, Moran turned repeatedly to the subject
of the "bloody brick," with which he alleged Jensen assaulted him.
It wasn't even taken into evidence. It was never tested for the type of blood on
it. It was never tested for skin on
it. It was never tested for hair.
. . . .
I wish nothing more than to
have that brick as evidence. I wish
nothing more than blood samples would have been taken from all over that
apartment. One drop of Jake's blood in
that apartment and both their stories is a lie, all lies, because Jake was
never inside the apartment[,] so he says.
. . . .
How did the blood get on that brick? Is it Jake's blood? It doesn't have to be my blood. See if it is Jake's blood, that puts Jake in
possession of that brick right there.
Right? He has to have a hold of
the brick before I cut him, or he has to have the brick after I cut him. But, in any case, he has still got that
brick. You can't refute the fact that
Jake was in possession of that brick at the time he received his injuries.
¶20 Ultimately, the jury accepted Pinchard and Jensen's version of the
facts and convicted Moran on the remaining counts on March 3, 1995. On July 18, 1995, Dane County Circuit Judge
Mark A. Frankel sentenced Moran to 72 years in prison.
¶21 Moran appealed, still proceeding pro se. An attorney appointed to represent him filed a "no
merit" brief pursuant to Wis. Stat. § (Rule) 809.32 and Anders
v. California, 386 U.S. 738 (1967). Moran filed a pro se response to the no
merit brief and several amendments to his response. The court of appeals, upon consideration of
the no merit brief and Moran's responses, affirmed. It also independently reviewed the record
and found no additional potentially meritorious issues for review. This court denied Moran's petition for
review on September 2, 1997.
¶22 Some time after the denial of his appeal, Moran retained Attorney
George A. Limbeck. On November 15,
1999, Attorney Limbeck sent a letter to Assistant District Attorney Jac G.
Heitz "ask[ing] your consent and cooperation in having DNA typing done on
all four[] blood
samples . . . ."
Attorney Limbeck promised that "my client would pay all expenses
associated with the testing . . . ."
¶23 Approximately three years later, on April 22, 2002, Moran filed a
motion seeking DNA testing of a number of blood samples found at the scene,
including three "unknown blood samples" taken from inside Pinchard's
apartment and the blood sample from the door across the hall. The motion did not reference
Wis. Stat. § 974.07, which was in effect at the time Moran filed
his motion, having been included in the 2001 Budget Bill. See 2001 Wis. Act 16,
§ 4028j. Instead, Moran cited State
v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996), and
"point[ed] out to the court that the defendant has tried to have D.N.A.
evidence tested for years." The
circuit court denied the motion on August 21, 2002, stating that "[t]he
defendant's motion offers no explanation as to how the testing of the five
blood samples could have impact upon . . . the jury
verdicts in this matter," and that "[s]uch evidence would not make
more credible the defendant's absurd theory that he stabbed Ms. Pinchard nine
times inadvertently."
¶24 In response, Moran filed another motion, this time citing
Wis. Stat. § 974.07.
Specifically, Moran alleged that his motion satisfied all the criteria
set out in § 974.07(2). The
circuit court denied this second motion on February 5, 2003. On February 13, 2003, Moran filed a
"motion for reconsideration."
The circuit court denied this "motion," stating that Moran had
the right to appeal the order. Moran
appealed, and the court of appeals affirmed. Moran filed a petition for review, which we
granted on November 16, 2004.
¶25 In their briefs, the parties focused our attention almost
exclusively on § 974.07(7), pertaining to court-ordered DNA testing. However, at oral argument on April 12, 2005,
Moran's counsel directed our attention to § 974.07(6), under which a
movant may request certain biological material from the district attorney. We requested supplemental briefs from both
parties regarding the impact of Moran's argument under § 974.07(6).
II.
STANDARD OF REVIEW
¶26 We must determine whether, under
Wis. Stat. § 974.07, Moran has a right to obtain and test
certain biological material. Statutory interpretation and the application of a
statute to specific facts are questions of law that we review de novo. See State v. Harris, 2004 WI 64, ¶25, 272
Wis. 2d 80, 680 N.W.2d 737.
This court clarified the proper method of statutory interpretation last
term in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI
58, 271 Wis. 2d 633, 681 N.W.2d 110. In Kalal, we stated: "statutory interpretation
'begins with the language of the statute.
If the meaning of the statute is plain, we ordinarily stop the
inquiry.'" Id., ¶45
(internal citations omitted). The court
should assign the words in the statute their ordinarily accepted meaning. Id.
The court may also consider the context and structure of the
statute. Id., ¶46. "'If this process of analysis yields a
plain, clear statutory meaning, then there is no ambiguity, and the statute is
applied according to this ascertainment of its meaning.' Where statutory language is unambiguous,
there is no need to consult extrinsic sources of interpretation, such as
legislative history." Id.
(internal citations omitted).
III.
ANALYSIS
¶27 Moran seeks to test blood samples obtained from the crime scene
pursuant to Wis. Stat. § 974.07. That statute provides, in relevant part:
974.07 Motion for postconviction deoxyribonucleic acid
testing of certain evidence.
. . . .
(2) At any time after being convicted of a
crime . . . a person may make a motion in the court in
which he or she was convicted . . . for an order requiring
forensic deoxyribonucleic acid testing of evidence to which all of the
following apply:
(a) The evidence is relevant to the investigation or prosecution that
resulted in the conviction . . . .
(b) The evidence is in the actual or constructive possession of a
government agency.
(c) The evidence has not previously been subjected to forensic
deoxyribonucleic acid testing or, if the evidence has previously been tested,
it may now be subjected to another test using a scientific technique that was
not available or was not utilized at the time of the previous testing and that
provides a reasonable likelihood of more accurate and probative results.
. . . .
(6)(a) Upon demand the district attorney shall disclose to the movant or
his or her attorney whether biological material has been tested and shall make
available to the movant or his or her attorney the following material:
1. Findings based on testing of biological materials.
2. Physical evidence that is in the actual or constructive possession
of a government agency and that contains biological material or on which there
is biological material.
(b) Upon demand the movant or his or her attorney shall disclose to the
district attorney whether biological material has been tested and shall make
available to the district attorney the following material:
1. Findings based on testing of biological materials.
2. The movant's biological specimen.
(c) Upon motion of the district attorney or the movant, the court may
impose reasonable conditions on availability of material requested under pars.
(a)2. and (b)2. in order to protect the integrity of the evidence.
(d) This subsection does not apply unless the information being
disclosed or the material being made available is relevant to the movant's
claim at issue in the motion made under sub. (2).
(7)(a) A court in which a motion under sub. (2) is filed shall order
forensic deoxyribonucleic acid 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 . . . convicted . . . if
exculpatory deoxyribonucleic acid testing results had been available before the
prosecution [or] conviction . . . .
3. The evidence to be tested meets the conditions under sub.(2)(a) to
(c).
. . . .
(b) A court in which a motion under sub.(2) is filed may order forensic
deoxyribonucleic acid testing if all of the following apply:
1. It is reasonably probable that the outcome of the proceedings that
resulted in the conviction . . . would have been more
favorable to the movant if the results of . . . testing
had been available before he or she was prosecuted [or]
convicted . . . .
2. The evidence to be tested meets the conditions under sub.(2)(a) to
(c).
. . . .
¶28 Moran argues that he is entitled to testing under either
Wis. Stat. § 974.07(6) or § 974.07(7).
A. Waiver
¶29 Before addressing the substance of Moran's position, we must
address the State's argument that Moran has waived any reliance on
Wis. Stat. § 974.07(6) by not raising that argument until very
late in this appeal. The State notes
that (1) Moran never filed a motion in the circuit court citing
§ 974.07(6); (2) Moran did not mention § 974.07(6) in his briefs to
the court of appeals and, therefore, that court did not mention the subsection
in its opinion; (3) Moran did not cite § 974.07(6) in his petition for
review to this court, and this court did not mention that subsection in
granting the petition; (4) Moran did not mention § 974.07(6) in his briefs
to this court, except for a "passing reference" in his reply brief;
and (5) Moran "expressly abandoned" any claim for relief under
§ 974.07(6) in his pro se brief to the court of appeals.
¶30 Moran responds that while he "did not precisely label the
relief he sought, the substance of [the] request [was] clear enough." See bin-Rilla v. Israel, 113
Wis. 2d 514, 521, 335 N.W.2d 384 (1983) ("Neither a trial
nor an appellate court should deny a prisoner's pleading based on its label
rather than on its allegations. If
necessary the court should relabel the prisoner's pleading and proceed from
there.").
¶31 While we agree with the State that "the general rule is that
issues not raised in the circuit court are deemed waived," State v.
Polashek, 2002 WI 74, ¶25, 253 Wis. 2d 527, 646 N.W.2d 330,
the rule is not absolute. Id. The waiver rule articulates this court's
general policy of judicial administration, not the extent of our power to hear
issues. See Wirth v. Ehly,
93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980).
Thus, when an issue involves a question of law, has been briefed by the
opposing parties, and is of sufficient public interest to merit a decision,
this court has discretion to address the issue. Apex Elecs. Corp. v. Gee, 217 Wis. 2d 378, 384,
577 N.W.2d 23 (1998). Having determined
that the interpretation of § 974.07(6) presents an issue of sufficient
public interest to merit a decision, we gave both parties the right to fully
brief the issue of § 974.07(6).
They did so, and we now exercise our discretion to address the issue.
B. Section 974.07(6)
¶32 We begin our interpretation of § 974.07(6) with the plain
language of the statute.
¶33 First, subsection (6) requires that, upon demand, the district
attorney must disclose "whether biological material has been
tested . . . and make
available . . . [f]indings based on testing of biological
materials."
Wis. Stat. § 974.07(6)(a)1. This provision serves as a limited post-conviction discovery
statute that complements Wis. Stat. § 971.23.
¶34 The pretrial "discovery and inspection" statute
requires a district attorney, "upon demand," to disclose
any reports . . . of experts made
in connection with the case or, if an expert does not prepare a report or
statement, a written summary of the expert's findings or the subject matter of
his or her testimony, and the results of
any . . . scientific test, experiment or comparison that
the district attorney intends to offer in evidence at trial.
Wis. Stat. § 971.23(1)(e)
(emphasis added). The district attorney
is also required to turn over "[a]ny physical evidence that the
district attorney intends to offer in evidence at the trial,"
§ 971.23(1)(g), and "[a]ny exculpatory evidence." § 971.23(1)(h) (emphasis added).
¶35 The post-conviction discovery statute, § 974.07(6)(a), permits
a person to obtain information about findings based on testing of biological
materials that the district attorney was not required to disclose before trial or
that a government agency obtained after trial.
¶36 The statute also requires the district attorney to disclose
"[p]hysical evidence that is in the actual or constructive possession of a
government agency and that contains biological material or on which there is
biological material."
Wis. Stat. § 974.07(6)(a)2.
¶37 The scope of § 974.07(6)(a)2. is problematic because
§ 974.07 does not define the term "biological material." A newly adopted supreme court rule regarding
record retention, SCR 72.01(46m), provides in part: "Any criminal case exhibit
identified by the parties, the clerk, or the court as containing biological
material and that remains in the court's custody shall be retained for 50 years
after entry of final judgment or until the court otherwise orders the
disposition of the evidence under s. 974.07, Stats." (Emphasis added.) This rule suggests a process for identifying exhibits that must
be retained. However,
Wis. Stat. § 974.07(6)(a)2. is more open ended, as it requires a
district attorney to disclose "physical evidence . . . that
contains biological material or on which there is biological material"
that was obtained and retained before the above-cited rule was adopted as well
as "physical evidence" that was never used at a trial.
¶38 The State argues that it need make available only materials that
have already been tested.
Essentially, the State claims that the statute requires the district
attorney to "make those test results available to the
defense . . . along with the biological material that
has been so tested." (Emphasis
added.) For good or ill, the plain
language of the statute leads us to a different conclusion.
¶39 We would have to add language to the statute in order to justify
the State's interpretation. If the
State's interpretation were correct, the following underlined language would
have to be added to § 974.07(6)(a)2:
(6)(a) Upon demand the district attorney shall disclose to the
movant . . . whether biological material has been tested
and shall make available to the movant . . . the following
material:
1. Findings based on testing of biological materials.
2. Physical evidence that has been tested and is in the actual
or constructive possession of a government agency and that contains biological
material or on which there is biological material.
Wis. Stat. § 974.07(6)
(underlined text supplied).
¶40 The second subdivision does not contain the emphasized
language. By contrast, subdivision
(6)(a)1. does contain language specifying that the State must release
findings "based on testing."
The second subdivision contains no such qualification, and it is not
this court's role to supply such language.
We are simply "'not at liberty to disregard the plain, clear words
of the statute.'" Kalal,
271 Wis. 2d 633, ¶46 (citation omitted).
¶41 Nonetheless, because subdivision (6)(a)2. is so open ended in terms
of the "physical evidence" that a district attorney is required to
disclose, there is a practical necessity that a motion to disclose should
comply with Wis. Stat. § 971.30(2), stating "with
particularity" the evidence or the type of evidence that the movant is
seeking.
¶42 Second, the plain language of the statute requires that the
requested material be "relevant to the movant's claim at issue in the
motion made under sub. (2)."
Wis. Stat. § 974.07(6)(d). Subsection (2), in turn, imposes three requirements. First, the evidence containing biological
material must be "relevant to the investigation or prosecution that
resulted in the conviction . . . ." Second, the evidence must be in the
government's possession. Third, the
evidence must not have been subjected to forensic DNA testing or, if so tested,
"may now be subjected to another test that was not available or was not
utilized at the time of the previous testing and that provides a reasonable
likelihood of more accurate and probative results." The third requirement listed in subsection
(2) provides an additional reason why subsection (6) does not apply only to
material that has already been tested.
¶43 Assuming that the State possesses material that the movant wishes
to test, the circuit court must undertake the three-pronged analysis in
Wis. Stat. § 974.07(2).
If these requirements are satisfied, the plain language of the statute
dictates that the movant should receive access to the evidence, and may subject
the material to DNA testing at his or her own expense. At that point, the circuit court may set
conditions on the testing pursuant to
Wis. Stat. § 974.07(6)(c).
¶44 In this case, the circuit court did not evaluate whether the
evidence met the requirements in sub. (2) because it concluded that "[t]he
defendant's motion offers no explanation as to how the testing of the five
blood samples could have impact upon . . . the jury
verdicts in this matter," and that "[s]uch evidence would not make
more credible the defendant's absurd theory that he stabbed Ms. Pinchard nine
times inadvertently."
¶45 Because the circuit court did not analyze the language of
§ 974.07(2), it did not specifically determine whether the evidence was
relevant.
Wisconsin Stat. § 904.01 defines "relevant
evidence" as "evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." We have noted that the circuit court has
"considerable discretion" in determining whether a particular piece
of evidence is "relevant." Chart
v. Gen. Motors Corp., 80 Wis. 2d 91, 102, 258 N.W.2d 680
(1977). We have described the
appropriate inquiry as "'whether there is a logical or rational connection
between the fact which is sought to be proved and a matter of fact which has
been made an issue in the case.'" Shapiro
v. Klinker, 257 Wis. 622, 626, 44 N.W.2d 622 (1950) (citation
omitted).
¶46 It will be Moran's burden on remand to show that the tests he seeks
to conduct will be relevant to his prosecution (namely, his conviction or his
sentence). For instance, Moran will
have to show that the determination of whose blood is on the "bloody
brick" is evidence having a tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.
¶47 We note that allowing Moran to test the evidence at his expense
does not guarantee that he will get a new trial, or even an evidentiary
hearing. Rather, if the testing is
done, the circuit court will determine whether or not the results "support
the movant's claim."
Wis. Stat. § 974.07(9)-(10). If the results support the claim, the court will hold an
evidentiary hearing to determine the appropriate relief. Wis. Stat. § 974.07(10).
¶48 Because it did not consider Moran's motion under the standards set
out in § 974.07(2) and (6), the circuit court proceeded on the wrong
theory of law. Accordingly, we remand
this case to the circuit court in order to allow it to analyze Moran's motion
under the proper standard.
¶49 We acknowledge the plausibility of the position that all motions
for testing, as opposed to inspection, should proceed under
Wis. Stat. § 947.07(7).
Nonetheless, our conclusion that a person willing to pay for the testing
himself may proceed under subsection (6) is buttressed by State v. Hudson,
2004 WI App 99, 273 Wis. 2d 707, 681 N.W.2d 316. In Hudson, the court of appeals
considered a prisoner's motion for DNA testing under § 974.07(6) and (7). In Hudson, the State "concede[d]
the trial court erred by construing [subsection 6] to prevent independent
testing of certain items at [the defendant's] expense, subject to protective
conditions imposed by the trial court," id., ¶12, so that the court
of appeals did not address the issue.
¶50 Although it had argued before the circuit court that
§ 974.07(6) did not apply, the State changed its position in Hudson
before the court of appeals and conceded that the defendant had a right to test
the qualifying material at his own expense.
In its brief in Hudson, the State argued that § 974.07(6) is
ambiguous because it "does not state the purposes for which the state must
make the biological material available . . . nor does it
impose any limitations on what the defendant may do with the
material." Significantly, the
State did not advance the argument it makes in this case that subsection (6)
applies only to material that has already been tested.
¶51 After examining the legislative history of the statute, the State's
Hudson brief concluded that, "the better interpretation of sub.
(6)(a) is that if the defendant has the ability to have the requested material
tested at his own expense, the statute requires the state to make those
materials available for testing subject to any protective order entered under
sub. (6)(c) to protect the integrity of that material."
¶52 In the present case, the State has reversed course and reasserts
the position it took at the circuit court level in Hudson. The State argues that "Moran has no
right to relief under § 974.07(6) because he has demonstrated no right to
relief under sub. (7)." The State
correctly notes that when a movant invokes subsection (6), the court must
determine whether the "material being made available is relevant to the
movant's claim at issue in the motion made under sub. (2)."
Wis. Stat. § 974.07(6)(d). However, the State then jumps to the conclusion that, "[a]
claim for relief under sub. (2) then channels directly and narrowly into a
request for mandatory testing under sub. (7)(a), and/or for discretionary
testing under sub. (7)(b)."
¶53 That interpretation of sub. (6) was advanced by the circuit court
in Hudson. On appeal, the State
took the position that such an interpretation was incorrect and the court of
appeals therefore reversed the circuit court as to that issue. Hudson, 273 Wis. 2d 707,
¶12. We think the position the State
advanced in Hudson is more defensible than the position it takes here,
and we disagree that resort to legislative history is necessary to reach the Hudson
result.
¶54 In this case, the State relies on legislative history to support
its interpretation that a motion under sub. (6) "channels directly and
narrowly" into sub. (7). Nothing
in the plain language of the statute "channels" subsection (6) or
subsection (2) "directly and narrowly" into subsection (7). Indeed, subsection (7) is not even mentioned
in either of the other two subsections.
Because we resolve this case based on the plain language of the statute,
we "stop the inquiry." Kalal,
271 Wis. 2d 633, ¶45. Murky
legislative history should not be permitted to undermine plain statutory
language.
¶55 Because we conclude that § 974.07(6) applies, we need not
address the parties' arguments relating to § 974.07(7), except to note our
disagreement with the State's argument that our holding marginalizes the
importance of (7). As we see it, the
statutory text makes clear that subsections (6) and (7) are intended for
different purposes. Subsection (6)
allows the movant access to the test results and/or material under some
circumstances, but the movant must decide whether to test the material and must
pay for the testing himself. Subsection
(7), on the other hand, pertains to court-ordered testing at the State's
expense.
¶56 The harsh reality of life is that some persons who have been
convicted of crime may have the means to hire attorneys or investigators
post-conviction under circumstances that would never justify the expenditure of
public money. The court is being asked
in this case to prevent a person from conducting DNA testing at his own
expense. We are unable to discern from
the plain language of § 974.07 a clear legislative intent to block testing
demanded by a person willing and able to pay until that person satisfies the
requirements for publicly funded DNA testing.
We encourage the legislature to revisit
Wis. Stat. § 974.07 to define undefined terms, set limits to the
evidence that must be provided, and give courts clear guidelines in procedure.
IV.
CONCLUSION
¶57 We conclude that the plain language of § 974.07(6) gives the
defendant the right to test the sought-after evidence containing biological
material if the circuit court determines that Moran meets all statutory
prerequisites. First, Moran must show
that the evidence meets the conditions under
Wis. Stat. § 974.07(2).
Second, Moran must comply with all reasonable conditions imposed by the
court to protect the integrity of the evidence. Third, Moran must conduct any testing of the evidence at his own
expense. If a movant seeks DNA testing
at public expense, the movant must proceed under § 974.07(7)(a) or (b),
and satisfy the heightened requirements in subsection (7). Subsection (6) provides free access to
evidence but it does not provide free testing.
Moran must pay for any testing permitted under subsection (6)
himself.
¶58 We remand this case to the circuit court to allow it to address
whether Moran's motion satisfies the requirements in
Wis. Stat. § 974.07(2) and (6), and if it does, to set
conditions on the availability and integrity of the evidence.
By the Court.—The decision of the court of
appeals is reversed and the cause is remanded to the circuit court.
