State v. Avery

2013 WI 13, 826 N.W.2d 60, 345 Wis. 2d 407, 2013 WL 335921, 2013 Wisc. LEXIS 12

• Court: Wisconsin Supreme Court
• Decided: January 30, 2013
• Docket: No. 2010AP1952
• Status: Published

Opinions

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1. This is a review of a published decision of the court of appeals,¹ which reversed the decision of the Milwaukee County Circuit Court, Judge Dennis Cimpl presiding, denying Brian Avery's (Avery) motion for a new trial.

¶ 2. In 1995, a jury convicted Avery of two counts of robbery, party to a crime. Twelve years later, in 2007, Avery brought a motion for postconviction relief. Avery argued that he should be entitled to a new trial under the theories of newly discovered evidence and in the interest of justice. Both arguments were based on new expert analysis of a video of one of the robberies. By applying new technology, digital photogrammetry,² one expert concluded that Avery was too tall to be the robber in the video. After an evidentiary hearing, the circuit court denied Avery's motion for a new trial. The court of appeals reversed. We now reverse the court of appeals and conclude that Avery is not entitled to a new trial under either theory.

¶ 3. We conclude that 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 Avery's guilt. We also conclude that the court of appeals erroneously exercised its discretion when it failed to properly analyze whether this was an exceptional case that entitled Avery to a new trial in the interest of justice. Avery is not entitled to a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 4. In July 1994, Avery was charged with two counts of armed robbery, party to a crime, in violation of Wis. Stat. §§ 943.32(l)(b), (2)³ and 939.05 (1993-94).⁴ The first count related to a robbery that occurred at Malone's Fine Foods (Malone's) on the evening of July 7, 1994. The second count related to a robbery that occurred at Attari Food Market (Attari) the afternoon of July 8, 1994.

¶ 5. During the four-day jury trial in April 1995, the State introduced two witnesses who had identified Avery as the perpetrator, Avery's confession, Avery's written apology, and a telephone conversation Avery had with his mother wherein he apologized for getting involved. The first identification witness was Alcherie Simmons (Simmons), a witness to the Malone's robbery. During the trial, she recanted and told the jury that she had never identified Avery to the police. However, Detectives James Kraft and Ralph Spano testified that they each interviewed Simmons shortly after the robbery, and that during those interviews, Simmons had identified Avery as the robber from a set of photographs. They also testified that she recognized Avery from a local Boys and Girls Club and Sherman Park. Detective William Blumenberg (Blumenberg) testified that Simmons told him she feared the robbers would retaliate against her if she spoke to the police. Officer Eduardo Negron testified that Simmons told him if she was put on the stand, she would "look stupid" and would say she did not know anything. The second identification witness was Mueen Hamdan (Hamdan), who witnessed the Attari robbery. Hamdan identified Avery from a set of photographs about three weeks after the robbery. He also identified Avery in the courtroom as one of the robbers.

¶ 6. Blumenberg also testified that Avery had confessed to participating in both robberies. Avery was 19 years old at the time of his arrest and was a high school graduate. Blumenberg testified that he had interrogated Avery on the afternoon of July 10, 1994, and that Avery told him the robbers met up at Sherman Park before both robberies, drove over to the stores, committed the robberies, and drove back to Sherman Park. Blumenberg relayed that Avery confessed to being the person with the sawed-off shotgun in the video of the Malone's robbery and that Avery identified the rest of the robbers by their names or nicknames.⁵ Blumenberg testified that Avery had signed the interrogation form detailing the robberies and that Avery personally wrote an apology on the form. Finally, Blumenberg testified that after the interrogation, he overheard Avery call his mother and apologize to her that he had "gotten involved."

¶ 7. The jury was shown the video of the Malone's robbery during the trial to provide context for witness testimony. In closing arguments, however, the prosecutor asked the jury not to rely on the video for identification because it was of such poor quality.

¶ 8. Throughout the trial, Avery maintained his innocence. Three alibi witnesses testified that Avery was watching basketball at North Division High School shortly before the Malone's robbery.⁶ Two witnesses testified to seeing Avery as they left the gym at approximately 8:15 p.m.; one witness testified to seeing Avery as the witness left the gym at approximately 8:05 p.m. Two of Avery's family members testified that Avery was at home when the Attari robbery occurred.

¶ 9. Avery testified that on July 7, the date of the Malone's robbery, he and his friends watched basketball at North Division High School from about 7 p.m. until approximately 8:30 p.m. He testified that after the games, he went to two friends' houses and got home about 11 p.m. He also testified that on July 8, the date of the Attari robbery, he was at home and talking on the telephone with a high school friend. That testimony was corroborated by the friend and by phone company records. Finally, Avery testified that his confession was coerced. He testified that he maintained his innocence throughout the first interview in the early morning hours of July 10; that he did not sleep between the end of the first interview at approximately 5:30 a.m. and the beginning of the second interview, at approximately 12 p.m.; and that the detectives told him he could go home only if he cooperated. He testified that when he confessed, he was simply agreeing to the information that the detectives relayed to him, and that he wrote the apology because the detectives told him the prosecutor would not come down as hard on him.⁷ He testified that he was not involved in the robberies.

¶ 10. On April 7,1995, the jury found Avery guilty of both robberies.

¶ 11. On June 17, 1996, Avery filed a motion for postconviction relief under Wis. Stat. § 809.30 (1993-94). The motion was partially granted and partially denied by the circuit court on October 1,1996, granting an evidentiary hearing. On December 4, 1996, the circuit court held a Machner⁸ hearing to determine if Avery's trial counsel was ineffective. On January 9, 1997, the circuit court issued a decision and order denying all of Avery's postconviction motions. Avery appealed his conviction and trial court orders denying his motions for postconviction relief. On December 1,1998, the court of appeals affirmed the circuit court judgment and orders.⁹ Thereafter, Avery petitioned this court for review which was denied on April 27, 1999.

¶ 12. Over 12 years after his conviction, on October 31, 2007, Avery filed a motion under Wis. Stat. § 974.06 (2005-06) for a new trial based on the theories of newly discovered evidence and in the interest of justice. His motion was based on analysis of VISARenhanced¹⁰ frames from the video of the robbery at Malone's Fine Foods (the video). Gene Grindstaff¹¹ (Grindstaff) analyzed the video using digital photogrammetry, and concluded that the person in the video believed to be Avery (the robber) was several inches shorter than Avery.

¶ 13. On February 1, 2008, the circuit court denied Avery's motion for a new trial. Avery appealed and on March 20, 2009, the court of appeals reversed the postconviction order and remanded the matter, concluding that Avery had made a prima facie claim of newly discovered evidence, and that he was entitled to an evidentiary hearing. In March 2010, the circuit court held a four-day evidentiary hearing.

¶ 14. At the hearing, Grindstaff testified that he conducted an analysis of the video. He explained how he applied the VISAR software to enhance the images and then used photogrammetry to estimate the robber's height. He explained the inherent uncertainties in photogrammetry analysis and the steps he took to minimize inaccuracies in his measurements. For instance, his analysis was based on images where the robber's foot appeared to be against the door frame and where the robber was standing, not walking. Grindstaff estimated that the robber was five feet, ten and one-half inches, with a one-inch margin of error. Grindstaff did not believe the robber could have been six feet, three inches tall, Avery's height.

¶ 15. The court also heard testimony from the State's witness, Richard Vorder Bruegge (Vorder Bruegge).¹² Vorder Bruegge conducted his own analysis of the robber's height and reviewed Grindstaffs analysis. Vorder Bruegge similarly explained his method of enhancing the video then applying photogrammetry to the images to determine the robber's height. He explained the inherent uncertainties in the process, including the low-quality video; obstructions; out of plane error; that the process works best when both feet are in view and planted on the ground; that the process works best when the robber has his shoulders back, locked knees, and is standing close to an object that can be used as a scale; and that to produce the most accurate estimate of the robber's height, the expert must know the height of the camera. Vorder Bruegge testified that these factors made the analysis of the Malone's video less certain. Vorder Bruegge analyzed images other than those analyzed by Grindstaff because he did not believe Grindstaffs images would produce the most accurate estimate. Vorder Bruegge estimated that the robber in the video was six feet, one-half inch, with a one-inch margin of error, but he did not rule out that the robber could be Avery's height.¹³

¶ 16. On March 11, 2010, the circuit court concluded that Avery was not entitled to new trial on the basis of newly discovered evidence. It concluded that the photogrammetry evidence met the four prongs of the newly-discovered evidence test, but that there was not a reasonable probability that a jury would have reasonable doubt as to Avery's guilt.¹⁴ The circuit court noted its belief that photogrammetry is an inherently subjective analysis:

And Vorder Brugge [sic] .. . says Grindstaff didn't take into account things such as whether or not somebody is out of plane, how high was the camera, how far was the camera from the door, the posture of the subject. A big assumption is made that his foot is against the wall. You can't tell from even the enhanced video as to whether or not his knees are bent, even the knee you can see, because of the baggy pants that he's wearing. You can't tell if he's bent over from the knees, from the waist, from the neck....

... These are all variables which affect the reliability of the analysis of Mr. Grindstaff.

¶ 17. The circuit court weighed the photogrammetry evidence against the evidence at trial: Hamdan's identification, police officers' testimony of Simmons's identification, Avery's confession, Avery's written apology, Avery's apology to his mother, Avery's alibi defense, and Avery's retraction of his confession. The circuit court concluded that the new evidence is "simply not going to make a difference." The new evidence was "not reliable enough." The circuit court stated that photogrammetry is "an inexact science," unlike DNA.

¶ 18. At a hearing on July 1, 2010, the circuit court also denied Avery's request for a new trial in the interest of justice. The circuit court stated that granting a new trial in the interest of justice is done only in exceptional cases. It stated that the photogrammetry evidence did not "destroy" the State's case, but merely "chip[ped] away" at the case and thus, was not an exceptional case so as to warrant a new trial.

¶ 19. In October 2011, the court of appeals reversed and remanded for a new trial. State v. Avery, 2011 WI App 148, 337 Wis. 2d 560, 807 N.W.2d 638. Concerning the newly-discovered evidence argument, the court of appeals determined that the circuit court improperly weighed the credibility of Grindstaff against the credibility of Vorder Bruegge. Id., ¶ 34. It concluded that the circuit court erroneously exercised its discretion because it is the jury's task to weigh the credibility of testimony. Id. The court of appeals concluded that Avery was entitled to a new trial based on the photogrammetry evidence because "if a jury believes the height of the video suspect as put forth by expert analysis of new video enhancement technology, it is reasonably probable that a reasonable doubt as to Avery's guilt would exist." Id., ¶ 35. The court of appeals also concluded that Avery was entitled to a new trial in the interest of justice because the "jury was precluded from hearing photogrammetry evidence," and therefore, the real controversy — Avery's involvement in the robberies — was not fully tried. Id., ¶ 45.

¶ 20. Judge Brennan dissented from the court of appeals' decision. Id., ¶ 47. As to the newly-discovered evidence claim, she concluded that the majority's analysis took the circuit court's comment out of context. Id., ¶ 51. Instead of weighing the credibility of one expert against the other, Judge Brennan determined that the circuit court was balancing the new evidence, which is unlike DNA because it is an inexact science, against the old evidence, which the circuit court found to be strong. Id. Judge Brennan agreed with the circuit court, and concluded that the new evidence would not create a reasonable doubt as to Avery's guilt. Id., ¶ 55. She also concluded that Avery was not entitled to a new trial in the interest of justice because the real controversy of Avery's identification had been fully tried. Id., ¶¶ 57-58. The State had presented strong evidence that included two eyewitnesses and Avery's confession; Avery presented an alibi defense and recanted his confession. Id., ¶ 58. Judge Brennan concluded that the real controversy was fully tried because the jury had the opportunity to hear all of that evidence and made its own credibility determination when it found him guilty. Id.

¶ 21. The State petitioned this court for review and we granted the petition on February 23, 2012.

II. STANDARD OF REVIEW

¶ 22. Avery requests a new trial because the photogrammetry evidence constitutes newly discovered evidence that creates a reasonable probability that the jury would have a reasonable doubt as to Avery's guilt. The decision to grant or deny a motion for a new trial based on newly discovered evidence is committed to the circuit court's discretion. State v. Plude, 2008 WI 58, ¶ 31, 310 Wis. 2d 28, 750 N.W.2d 42. We review the circuit court's determination for an erroneous exercise of discretion. State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997).

¶ 23. Avery also contends that he is entitled to a new trial in the interest of justice because the effect of the photogrammetry evidence is that the real controversy was not fully tried. The court of appeals has the discretionary power to reverse a conviction in the interest of justice. Wis. Stat. § 752.35;¹⁵ State v. Armstrong, 2005 WI 119, ¶ 113, 283 Wis. 2d 639, 700 N.W.2d 98. We review a discretionary determination for an erroneous exercise of discretion. See Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶ 22, 339 Wis. 2d 493, 811 N.W.2d 756. The court erroneously exercises its discretion when it applies the wrong legal standard or makes a decision not reasonably supported by the facts of record. See id.; State v. McConnohie, 113 Wis. 2d 362, 371, 334 N.W.2d 903 (1983).

III. ANALYSIS

A. Newly Discovered Evidence

¶ 24. We conclude that 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 Avery's guilt.

¶ 25. To set aside a judgment of conviction based on newly discovered evidence, the evidence must be sufficient to establish that the defendant's conviction resulted in a "manifest injustice." Plude, 310 Wis. 2d 28, ¶ 32 (citation omitted). In a motion for a new trial based on newly discovered evidence, the defendant must prove, by clear and convincing evidence, that " '(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.'" Id. (quoting McCallum, 208 Wis. 2d at 473). If the defendant is able to make this showing, then "the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial." McCallum, 208 Wis. 2d at 473. A reasonable probability of a different result exists if there is a reasonable probability that a jury, looking at both the old and the new evidence, would have a reasonable doubt as to the defendant's guilt. State v. Love, 2005 WI 116, ¶ 44, 284 Wis. 2d 111, 700 N.W.2d 62. A court reviewing the newly discovered evidence should consider whether a jury would find that the evidence "had a sufficient impact on other evidence presented at trial that a jury would have a reasonable doubt as to the defendant's guilt." Plude, 310 Wis. 2d 28, ¶ 33. While the court must consider the new evidence as well as the evidence presented at trial, the court is not to base its decision solely on the credibility of the newly discovered evidence, unless it finds the new evidence to be incredible. See McCallum, 208 Wis. 2d at 474-75.

¶ 26. For example, in McCallum, the defendant was convicted of second-degree sexual assault. Id. at 468. The State's primary evidence of guilt was the victim's statement. Id. After the defendant entered an Alford plea, the victim recanted her accusation. Id. The circuit court denied the defendant's motion to withdraw his plea, finding that the victim's recantation was less credible than her accusation. Id. at 474. This court concluded that the circuit court erred in basing its decision solely on the victim's recantation being less credible than her accusation. Id. at 474-75. This court remanded the matter to the circuit court for a determination of whether there was a reasonable probability that a jury would have a reasonable doubt as to McCallum's guilt. Id. at 480.

¶ 27. Similarly, in Edmunds, the court of appeals concluded that the circuit court improperly weighed the credibility of the witnesses. State v. Edmunds, 2008 WI App 33, ¶ 18, 308 Wis. 2d 374, 746 N.W.2d 590. Edmunds was convicted of first-degree reckless homicide based on expert testimony that a child had died of shaken baby syndrome while in Edmunds' care. Id., ¶¶ 2-4. Ten years after her conviction, Edmunds brought a motion for a new trial based on medical testimony that now challenged whether the cause of death was shaken baby syndrome. Id., ¶ 6. Edmunds' newly discovered evidence consisted of six expert witnesses, who testified that "there is now significant debate in the medical community" concerning shaken baby syndrome. Id. The circuit court weighed the credibility of Edmunds' new experts and the credibility of the State's new expert, and it denied Edmunds' motion after finding that the State's new expert was more convincing. Id., ¶ 18. The court of appeals reversed, concluding that it was improper to decide whether a new trial is warranted by weighing the State's new evidence against Edmunds' new evidence. Id. Instead, the court of appeals concluded "that the record establishes that there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds' guilt." Id., ¶ 23.

¶ 28. A reasonable doubt as to a defendant's guilt has been found to exist when the reliability of a witness critical to the State's case is completely called into question by newly discovered evidence, such as that witness's false credentials. For example, in Plude, the main issue at trial was whether Plude drowned his wife Genell by forcing her head in the toilet. 310 Wis. 2d 28, ¶ 4. The testimony of several doctors was inconclusive as to the cause of death, but the testimony of the State's expert, Saami Shaibani, was that Plude drowned his wife. Id., ¶ 25. Shaibani testified that he was an expert in "injury mechanism analysis," a combination of physics, trauma, and engineering. Id., ¶ 23. He conducted a series of experiments and concluded that Genell could not have inhaled toilet bowl water on her own. Id., ¶ 37. After Plude was convicted, newly discovered evidence revealed that Shaibani falsified his credentials. Id., ¶ 36. This court concluded that "in a trial rife with conflicting and inconclusive medical expert testimony . .. there exists a reasonable probability that, had the jury discovered that Shaibani lied about his credentials, it would have had a reasonable doubt as to Plude's guilt." Id.

¶ 29. The State argues that Avery is not entitled to a new trial based on newly discovered photograminetry evidence because the newly discovered evidence is not enough to overcome the strong evidence at trial.

¶ 30. Avery argues that he is entitled to a new trial based on the newly discovered evidence because if the jury believes that the robber is shorter than Avery, Avery would not be found guilty.

¶ 31. In this case, it is undisputed that the four prongs of the newly-discovered evidence test are satisfied. First, the photogrammetry evidence was "discovered after conviction" because in 1994, experts could not have enhanced the images and applied photogrammetry to estimate the robber's height. Both Grindstaff and Vorder Bruegge testified that in 1994, the software used to enhance the images was not available, and the process would have been prohibitively expensive. Second, Avery was not negligent in seeking the evidence because it was not available at the time of his trial. Third, the evidence is material to the issue of Avery's participation in the robberies. Fourth, the evidence is not merely cumulative. There was no evidence in the trial regarding the robber's height.

¶ 32. The parties dispute the ultimate question of whether there is a reasonable probability that a jury, looking at the evidence presented at trial and the new digital photogrammetry evidence, would have a reasonable doubt as to Avery's guilt.¹⁶ The circuit court has discretion to grant a new trial based on newly discovered evidence, and we cannot say that it erroneously exercised its discretion here. Plude, 310 Wis. 2d 28, ¶ 31; McCallum, 208 Wis. 2d at 473. Not all new evidence or new technology warrants a new trial. The question is not whether the evidence could create a reasonable doubt. When weighing the new evidence against the evidence presented at trial, we cannot say that the circuit court erroneously exercised its discretion when it concluded that the photogrammetry evidence would not create a reasonable doubt in the minds of the jury.

¶ 33. We disagree with the court of appeals' determination that "[b]y concluding that Grindstaffs opinions were 'not reliable enough' to entitle Avery to a new trial, the trial court gave one opinion from a credible witness greater weight than a competing opinion from a different credible witness." Avery, 337 Wis. 2d 560, ¶ 31. Instead, we conclude that the circuit court did not merely weigh the credibility of the experts. See id., ¶ 51 (Brennan, J., dissenting). The circuit court did not conclude that the new evidence was less credible than the old evidence or that one expert was more credible than another. See Edmunds, 308 Wis. 2d 374, ¶ 18; McCallum, 208 Wis. 2d at 474-75. In fact, a circuit court must consider the new evidence in order to properly determine whether the newly discovered evidence warrants a new trial. In so doing, the circuit court here noted that the photogrammetry evidence was different than DNA or a third-party confession. Indeed, unlike DNA or a third-party confession, the photogrammetry evidence here depends upon dozens of different variables. A different or incorrect assumption on even one variable could lead to a different result.

¶ 34. 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.

¶ 35. 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.

¶ 36. The State's evidence in this case was far stronger than the State's evidence in McCallum, Edmunds, or Elude. 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.

B. Interest of Justice

¶ 37. We also conclude that Avery is not entitled to a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence.

¶ 38. The supreme court and the court of appeals may set aside a conviction through the use of our discretionary reversal powers, though the circuit court does not have such discretionary powers.¹⁷ See State v. Burns, 2011 WI 22, ¶ 24, 332 Wis. 2d 730, 798 N.W.2d 166; State v. Henley, 2010 WI 97, ¶ 98, 328 Wis. 2d 544, 787 N.W.2d 350. However, such discretionary reversal power is exercised only in "exceptional cases." Id., ¶ 25; State v. Hicks, 202 Wis. 2d 150, 161, 549 N.W.2d 435 (1996). The power to grant a new trial in the interest of justice is to be exercised "infrequently and judiciously." State v. Ray, 166 Wis. 2d 855, 874, 481 N.W.2d 288 (Ct. App. 1992). "This court approaches a request for a new trial with great caution. We are reluctant to grant a new trial in the interest of justice. . . ."¹⁸ Armstrong, 283 Wis. 2d 639, ¶ 114 (citation omitted).

¶ 39. The real controversy here was fully tried. To prove Avery's guilt, the State presented evidence in the form of eyewitness identifications, officers' testimony, Avery's confession, Avery's written apology, and Avery's apology to his mother for getting involved.

¶ 40. Avery presented an alibi defense at trial. 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 jurors had the opportunity to hear all of that evidence and made their own credibility determination when they found him guilty." Avery, 337 Wis. 2d 560, ¶ 58 (Brennan, J., dissenting).

¶ 41. Avery's new photogrammetry evidence does not meet the standard set forth in Hicks or Armstrong. Clearly, it does not "discreditO one of the pivotal pieces of evidence forming the foundation of the State's case." Hicks, 202 Wis. 2d at 171. In Hicks and Armstrong, the State "assertively and repetitively" used physical evidence to prove a defendant's guilt. That specific evidence later turned out to be seriously compromised. See also Maloney, 288 Wis. 2d 551, ¶ 40 ("[U]nlike Hicks and Armstrong, where the newly discovered evidence compromised evidence on which the prosecution relied, Maloney has alleged no facts that would substantiate allegations that evidence on which the prosecution relied was compromised.").

¶ 42. The video was not used at trial for identification purposes. Though the jury saw the video of the Malone's robbery, the State asked the jury not to make identifications from the video because it was of such poor quality. We have no indication that the video played any part in the jury's verdict. The State did not "assertively and repetitively" use the video of the Malone's robbery to prove Avery's identification. Moreover, the photogrammetry evidence does not discredit two witness identifications of Avery as the robber, Avery's confession, his written apology, or his call apologizing to his mother for getting involved. At most, the photogrammetry evidence "chip[s] away" at the State's case. Hicks, 202 Wis. 2d at 171.

¶ 43. In Hicks, this court granted the defendant a new trial in the interest of justice when subsequent DNA tests refuted hair evidence the State presented repeatedly at trial as being "consistent" with the defendant's hair. Id. at 153. The hair evidence at trial was critically important to the State's case. Hicks was convicted of burglary, robbery, and two counts of sexual assault. Id. at 152. At trial, the victim, D.F., testified that she heard a knock at her door, that she saw a black man standing outside, that the man said he was her upstairs neighbor, that he came in to use her phone, and that he assaulted her. Id. at 152-54. D.F., a white female, had limited visual contact with the assailant, but she picked Hicks out of a lineup two days after the assault. Id. at 154.

¶ 44. During the investigation, the police found several hairs in D.F.'s apartment. Id. One "Negro" head hair was found on D.F.'s comforter, and four "Negro" pubic hairs were found in the vacuum sweepings of D.F.'s apartment approximately 15 days after the assault. Id. During trial, an analyst testified that four of the hairs were "consistent" with Hicks' hair, and one hair was "similar" to Hicks' hair. Id. at 154, 166. Additionally, a "Caucasian" head hair was found inside the pants Hicks was wearing when he was arrested, and the analyst testified that this hair was "consistent" with D.E's hair. Id. at 154. The hairs were not tested for DNA. Id. at 155.

¶ 45. The State's theory at trial was that all of the hairs came from the same person, Hicks. Id. at 165-66. At trial, the State relied heavily on the hair evidence and argued that the hair was "strong" and "powerful" evidence of Hicks' guilt. Id. at 167. In its opening statement, the State told the jury that hairs found in D.F.'s apartment were "consistent with the hair of Anthony Hicks." Id. at 165. An analyst testified that the hairs found at the crime scene were consistent with Hicks' hair, and, over objection, an enlarged photograph of the hair evidence was shown to the jury. Id. at 166. The State argued that "I don't see, here, any prejudice, except for the fact that it's probative. And it (the hair evidence) is probative evidence. That's for sure!" Id. at 167. During closing argument, the State again emphasized that Hicks should be convicted because the hairs "were compared and found consistent" to both Hicks' hair and the victim's hair. Id. at 167-68.

¶ 46. Hicks' defense at trial was that he had never been in D.F.'s apartment. Id. at 163. He presented alibi testimony but none for the exact time of the offense. Id. at 155. The jury convicted Hicks. Id. at 152.

¶ 47. Postconviction, an analyst conducted DNA tests on the five hairs. Id. at 156. The DNA evidence excluded Hicks as the source of two of the hairs. Id. The other hairs did not yield sufficient DNA for analysis. Id. Hicks then brought a motion for a new trial in the interest of justice, arguing that the real controversy— whether he was the man that entered D.F.'s apartment and assaulted her — had not been fully tried. Id. at 157-58. The circuit court rejected his argument. Id. at 152. The court of appeals reversed, granting Hicks a new trial, and the State appealed to this court. Id. at 157.

¶ 48. This court agreed with the court of appeals and concluded that it was an exceptional case. Id. at 161. "[T]he jury did not hear important DNA evidence that bore on an important issue of the case," and "the testimony the jury heard with respect to the hair as affirmative proof of guilt was inconsistent with what the later DNA analysis revealed, thus clouding the crucial issue of identification." Id. The court noted:

By itself, the fact that Hicks obtained post-conviction DNA evidence might not persuade us to remand this matter for a new trial in the interest of justice. The determinative factor in the present case is the fact that the State assertively and repetitively used hair evidence throughout the course of the trial as affirmative proof of Hicks' guilt. The State went to great lengths to establish that the hairs found at the scene came from the assailant. In opening and closing arguments, the State relied heavily upon its expert's opinion that the hairs found at the scene were consistent with known standards provided by Hicks. At various times, the State referred to a 'match' between the hairs, thus elevating and highlighting the importance of the hair evidence to the jury.

The combination of these two factors leads us to the conclusion that the real controversy was not fully tried.

Id. at 164. The DNA evidence did more than "chip away at the accumulation of evidence produced by the State to prove guilt. The DNA test result, in conjunction with D.F.'s testimony about the source of the Negro hairs in her apartment, discredits one of the pivotal pieces of evidence forming the foundation of the State's case." Id. at 171. Such is not the case with respect to Avery's photogrammetry evidence.

¶ 49. Similar to Hicks, in Armstrong, the State used physical evidence forcefully during the trial to prove that Armstrong was guilty of the sexual assault and murder of Charise Kamps. 283 Wis. 2d 639, ¶¶ 87-89. Later tests disproved Armstrong as the source of two hairs and semen found near the body, and he brought a motion for a new trial in the interest of justice based on the DNA evidence. Id., ¶¶ 94-95.

¶ 50. The State's case against Armstrong consisted of five parts:

(1) that Armstrong could not have been at Kamps' apartment before her murder; (2) two witnesses made observations that placed Armstrong at Kamps' apartment around the time she was murdered; (3) physical evidence conclusively and irrefutably established Armstrong's guilt, including (a) a fingerprint identified as Armstrong's found on a water bong in Kamps' apartment; (b) semen stains on the victim's bathrobe that came from a similar secretor type as Armstrong; (c) four head hairs found in the apartment characterized by the State's expert as "consistent" and "similar" to Armstrong's; (d) traces of blood underneath Armstrong's fingernails and toenails detected the evening following the murder; (4) Armstrong had a romantic interest in Kamps that she did not return; and (5) Armstrong paid Kamps $400 in repayment of a debt and following her murder, the $400 could not be found in her apartment, while Armstrong made a $315 cash deposit the next day.

Id., ¶ 8.

¶ 51. Critical to the State's case and the conviction was certain physical evidence. Armstrong's fingerprint was found on a bong in Kamps' apartment. Id., ¶ 64. A robe next to Kamps' body tested positive for semen, and the semen was consistent with a type-A secretor. Id., ¶ 65. An analyst testified that Armstrong, as well as 80 percent of the population, are type-A secretors. Id. The State also presented evidence that Armstrong had blood underneath his fingernails and toenails within a day after the murder. Id., ¶¶ 68-69. Finally, the State presented hair evidence. Police recovered a total of five hairs, all head hairs, that were "consistent" with Armstrong's hair. Id., ¶¶ 80-83. The hairs were recovered from the bathrobe belt draped over Kamps' body, the bathroom, the bodily fluid around Kamps' body, and the fan. Id.

¶ 52. Similar to Hicks, the State used the physical evidence "assertively and repetitively as affirmative proof of Armstrong's guilt." Id., ¶ 139. During closing arguments, the State emphasized the physical evidence and stated: "There was physical evidence at the scene. Physical evidence to demonstrate conclusively that Ralph Armstrong is the person who murdered Charise Kamps. There is also physical evidence on Ralph Armstrong that ties him precisely with the scene of the crime." Id., ¶ 140. The State told the jury that "[t]wo of the defendant's hairs" were on the bathrobe belt across Kamps' body. Id., ¶ 142. The State further argued that semen from a type-A secretor, like Armstrong, was found on the bathrobe next to Kamps¹ body. Id., ¶ 144. The State told the jury that "there was blood under every fingernail, every single one. That was Charise Kamps¹ blood." Id., ¶ 143.

¶ 53. In Armstrong, the State "flaunted powerful conclusions before the jury that the physical evidence conclusively and irrevocably established Armstrong as the murderer." Id., ¶ 154. The new evidence did more than " ’chip away¹" at the accumulation of the State's case, it" ’discredited] one of the pivotal pieces of proof forming the very foundation of the State's case.'" Id., ¶ 155 (quoting Hicks, 202 Wis. 2d at 171). Such is not the case with respect to Avery's new photogrammetry evidence.

¶ 54. In the case at issue, Avery argues that the real controversy of his involvement in the robberies was not fully tried because the jury was precluded from hearing the photogrammetry evidence during the trial. Avery argues that we should affirm the court of appeals and grant him a new trial in the interest of justice.

¶ 55. The State argues that this case, unlike Hicks and Armstrong, is not a truly exceptional one. We agree. The court of appeals erroneously exercised its discretion by granting a new trial in the interest of justice without undertaking any analysis to determine that this was such an exceptional case.¹⁹

¶ 56. In both Hicks and Armstrong, the real controversy was not fully tried. In Hicks, the new DNA tests alone were not enough to grant a new trial, but it was the combination of the new evidence with the State's reliance on that specific evidence at trial that made the case so exceptional to warrant a new trial in the interest of justice. 202 Wis. 2d at 164. The same cannot be said with respect to Avery's trial. The jury saw the video, and it did not hear the photogrammetry evidence. However, we cannot say that the photogrammetry evidence discredits a pivotal piece of evidence presented to the jury such that the real controversy was not fully tried. The State did not meaningfully rely on the video at trial and it certainly did not do so with respect to the issue of identification.

¶ 57. A new trial is not warranted every time new technology affects evidence admitted at an earlier trial:

It strains the meaning of 'fully tried' to suggest that [a] case was not fully tried because the scientific bases for physical evidence set forth in the trial were only state-of-the-art at the time of the trial, but not state-of-the-art at present. Using the majority's standard, the real controversy can never be fully tried because scientific advances in evidence gathering and analysis will continue to improve.

Armstrong, 283 Wis. 2d 639, ¶ 188 (Roggensack, J., dissenting).

The judicial system has limited resources, and judicial policy favors finality of convictions. See Love, 284 Wis. 2d 111, ¶ 58 (Prosser, J., dissenting). In a truly exceptional case, those interests do not trump the defendant's interest in having the real controversy fully tried. However, this is not such an exceptional case.

¶ 58. Aveiy's photogrammetry evidence does not discredit a pivotal piece of evidence that the State used "assertively and repetitively" at trial to prove Avery's guilt. Hicks, 202 Wis. 2d at 165, 171-72. The photogrammetry evidence, at most, merely "chip[s] away" at the State's case. Id. at 171. Thus, the real controversy was fully tried. This is not an exceptional case that warrants granting Avery a new trial in the interest of justice.

IV CONCLUSION

¶ 59. We conclude that 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 Avery's guilt. We also conclude that the court of appeals erroneously exercised its discretion when it failed to properly analyze whether this was an exceptional case that entitled Avery to a new trial in the interest of justice. Avery is not entitled to a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence.

By the Court. — The decision of the court of appeals is reversed.

1 State v. Avery, 2011 WI App 148, 337 Wis. 2d 560, 807 N.W.2d 638.

2 Photogrammetry is the "process of making precise measurements by means of photography." The American Heritage Dictionary of the English Language 1364 (3d ed. 1992).

3 Wisconsin Stat. § 943.32, "Robbery," states in part:

(1) Whoever, with intent to steal, takes property from the person or presence of the owner by [] the following means is guilty of a Class C felony:

(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.

(2) Whoever violates sub. (1) by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon is guilty of a Class B felony.

4 Wisconsin Stat. § 939.05, "Parties to crime" states in part:

(1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

5 In Avery's confession, he identified one of the robbers as "Dope Fiend." Blumenberg showed Avery a picture of DeShawn Rodgers, and Avery identified Rodgers as "Dope Fiend" and stated that Rodgers was a participant in the robberies. Rodgers, who was also arrested and prosecuted for his participation in the robberies, implicated Avery when he told the police that he committed the robberies with "Brian" who he knew from Sherman Park and the Boys and Girls Club.

6 A map in the State's brief shows that North Division High School, located at 1011 W Center Street in Milwaukee, Wisconsin, is approximately 13 blocks away from the Malone's Fine Foods, located at 3610 N. Teutonia Avenue. Detective Spano testified that in a car, it took him two minutes and 40 seconds to drive from North Division High School to Malone's. The exact time of the Malone's robbery is not clear. There is no time stamp on the video. One officer testified that, based on his investigation, he believed the Malone's robbery occurred at approximately 8:30 p.m. The complaint also states that the robbery occurred at approximately 8:30 p.m., which was based on the statement of a witness, Ahmed Hasan. The State argues that Avery's testimony that he was at North Division High School shortly before the Malone's robbery is actually inculpatory, not exculpatory.

7 On appeal, Avery does not argue that his confession was involuntary. There is no dispute that Avery waived his Miranda rights before both interrogations began.

8 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

9 State v. Avery, No. 97-0317-CR, unpublished slip op. (Wis. Ct. App. Dec. 1, 1998).

10 VISAR, or video image stability and registration, is used to improve the quality of images and videos by removing background noises, making the images clearer, and correcting horizontal and vertical camera motion.

11 Grindstaff was qualified as an expert by the circuit court. He has a bachelor's and master's degree in electrical engineering, he graduated from the United States Air Force Metrology School, he is a certified metrologist (the science of measurement), and he teaches courses at the FBI and CIA on how to make measurements using his company's software.

12 Vorder Bruegge was qualified as an expert by the circuit court. He works in the digital-evidence section of the FBI, has a Ph.D. in geological sciences, and has extensive training in photogrammetry.

13 The circuit court also heard testimony from several other witnesses that Avery could not be the robber in the video for a variety of reasons. We agree with the circuit court that since this testimony was available at the time of the trial, it did not qualify as newly discovered evidence. See State v. Love, 2005 WI 116, ¶ 43, 284 Wis. 2d 111, 700 N.W.2d 62 (requiring "newly discovered evidence" to be discovered after the conviction).

14 To prevail on a claim for newly discovered evidence, a defendant must first prove, by clear and convincing evidence, that "(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative." Love, 284 Wis. 2d 111, ¶ 43. (citation omitted). If the defendant makes this showing, "the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial." Id., ¶ 44 (citation omitted). The State does not challenge that the photogrammetry evidence meets the four prongs of the test; it challenges only the final test.

15 All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.

16 The State argues that "reasonable probability" means it is more likely than not a jury would have a reasonable doubt as to a defendant's guilt. In support of its argument, the State cites State v. [Steven A.] Avery, 213 Wis. 2d 228, 570 N.W.2d 573 (Ct. App. 1997), and Strickland v. Washington, 466 U.S. 668, 693-94 (1984) ("[A] defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths.... [I]t comports with the widely used standard for assessing motions for new trial based on newly discovered evidence.").

Avery argues that the standard is whether the new evidence undermines the confidence in the outcome. See Kyles v. Whitley, 514 U.S. 419, 434 (1995) (defining "reasonable probability" as undermining confidence in the result); State v. Armstrong, 2005 WI 119, ¶ 162, 283 Wis. 2d 639, 700 N.W.2d 98 (withdrawing language from [Steven A] Avery that a defendant must prove a reasonable probability of a different outcome by clear and convincing evidence).

We need not decide this issue because even under the definition of "reasonable probability" favorable to Avery — that the new evidence undermines the confidence in the outcome — we conclude that Avery is not entitled to a new trial based on the newly discovered evidence.

17 The State argues that the court of appeals may not reverse a criminal conviction in the interest of justice on a motion made under Wis. Stat. § 974.06. The State relies upon State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990). However, State v. Armstrong is instructive on this issue: "we need not decide whether our statutory power is constrained according to Allen because this court has 'both inherent power and express statutory authority to reverse a judgment of conviction and remit a case for a new trial in the interest of justice.'" 2005 WI 119, ¶ 113, 283 Wis. 2d 639, 700 N.W.2d 98 (quoting State v. Hicks, 202 Wis. 2d 150, 159, 549 N.W.2d 435 (1996)). "This court has recently reaffirmed that our inherent power to reverse in the interest of justice is not limited to a direct appeal." State v. Maloney, 2006 WI 15, ¶ 14, 288 Wis. 2d 551, 709 N.W.2d 436. The discretionary reversal power of this court and the court of appeals is coterminous. Armstrong, 283 Wis. 2d 639, ¶ 113; Vollmer v. Luety, 156 Wis. 2d 1, 17-18, 456 N.W.2d 797 (1990) ("[W]e conclude that, because secs. 751.06 and 752.35, Stats., are identical, the legislature did not intend for the court of appeals' power to reverse under sec. 752.35 to be less than that of the supreme court under sec. 751.06.").

18 This court may grant a new trial in the interest of justice (1) whenever "the real controversy has not been fully tried," or (2) whenever "it is probable that justice has for any reason miscarried." Wis. Stat. § 751.06. Cases where the real controversy has not been fully tried have generally been limited to two situations: (1) when the jury was erroneously denied the opportunity to hear important evidence bearing on an important issue in the case or (2) when the jury had before it evidence not properly admitted that "so clouded" a crucial issue that it may be fairly said that the real controversy was not tried. Hicks, 202 Wis. 2d at 160.

19 While the court of appeals need not necessarily use the word "exceptional" in its analysis, it does have an obligation to analyze why a case is so exceptional to warrant a new trial in the interest of justice. In other words, the court of appeals erroneously exercised its discretion by granting a new trial in the interest of justice without properly analyzing why this was such an exceptional case. The court of appeals' analysis seems to simply restate the interest of justice test: "The jury was precluded from hearing photogrammetry evidence because, at the time of trial, the specific technique to sufficiently enhance the video surveillance evidence did not exist. We conclude, as a result, that the real controversy of whether Avery was actually involved in the robberies was not fully tried." Avery, 337 Wis. 2d 560, ¶ 45. The court of appeals never analyzed whether the jury was erroneously denied the opportunity to hear important evidence bearing on an important issue in the case, or whether the jury had before it evidence not properly admitted that so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried. See Hicks, 202 Wis. 2d at 160.

1 Wisconsin Stat. § 751.06 reads as follows:

Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.