court of appeals decision (not recommended for publication); for Louis: Edward J. Hunt; amicus, Wis. Innocence Project: Keith A. Findley, Peter Shawn Moreno; case activity
Interest of Justice – Shaken Baby Syndrome
Trial court grant of new trial in interest of justice upheld as proper exercise of discretion: the issue in controversy wasn’t fully and fairly tried, given failure to adduce at trial medical testimony that the deceased baby’s injuries didn’t result from shaken baby syndrome.
A number of State’s experts testified at trial that the injuries were consistent with shaken baby syndrome, while the defense presented no expert testimony. On postconviction motion, however, the defense presented experts who testified either that cause of death could not be determined or that it was definitively not attributable to shaken baby syndrome. One of the State’s own experts also testified that his opinion had changed in critical respects. Thus, although “the one-sided testimony at trial suggested unanimity in medical opinion regarding shaken baby syndrome,” postconviction evidence revealed that this picture was distorted, ¶16.
Interest of Justice – Shaken Baby Syndrome
Trial court grant of new trial in interest of justice upheld as proper exercise of discretion: the issue in controversy wasn’t fully and fairly tried, given failure to adduce at trial medical testimony that the deceased baby’s injuries didn’t result from shaken baby syndrome.
A number of State’s experts testified at trial that the injuries were consistent with shaken baby syndrome, while the defense presented no expert testimony. On postconviction motion, however, the defense presented experts who testified either that cause of death could not be determined or that it was definitively not attributable to shaken baby syndrome. One of the State’s own experts also testified that his opinion had changed in critical respects. Thus, although “the one-sided testimony at trial suggested unanimity in medical opinion regarding shaken baby syndrome,” postconviction evidence revealed that this picture was distorted, ¶16.
¶14 Circuit courts have the discretion to set aside a verdict and order a new trial in cases where the real controversy was not fully tried, regardless of the type of error involved. See State v. Harp, 161 Wis. 2d 773, 775, 469 N.W.2d 210 (Ct. App. 1991); see also Henley, 328 Wis. 2d 544, ¶65 (criminal defendants may request a new trial in the interest of justice as part of their postconviction motions and appeal). The court need not find a substantial likelihood of a different result on retrial. Harp, 161 Wis. 2d at 775. A new trial may be justified where competent and persuasive evidence was not introduced. See id. at 778 (citing Lien v. Pitts, 46 Wis. 2d 35, 44, 174 N.W.2d 462 (1970)). For example, in State v. Hicks, 202 Wis. 2d 150, 152-53, 549 N.W.2d 435 (1996), our supreme court concluded Hicks was entitled to a new trial because the jury did not hear DNA evidence relevant to the critical identification issue in the case and the state “assertively and repetitively” used the hair sample from which the DNA evidence was derived as proof of Hicks’ guilt.
¶15 Here, the jury did not hear testimony on three topics relevant to the medical diagnosis of shaken baby syndrome. First, no testimony offered at trial advised the jury of the legitimate medical debate surrounding shaken baby syndrome. Second, the jury was not adequately advised about the possibility of a lucid interval between the trauma and the onset of specific symptoms. Third, the jury was not adequately informed of the medical findings regarding Madelyn’s purported spinal injury. All of these topics are highly relevant to the diagnosis of shaken baby syndrome and directly challenge the State’s theory at trial.
The court reviews this discretionary grant of interest-of-justice relief deferentially, ¶13 n. 3 (State argument in favor of de novo review rejected). The trial court properly applied law to facts, and its conclusion is therefore sustained, ¶19. (Louis confessed, but the court “note(s) that the jury may view Louis’s confession in a different light with the aid of the new medical testimony.”)
Confessions – Voluntariness¶23 While a close case, we conclude, as did the circuit court, that Louis’s confession was voluntary. Louis was a twenty-four-year-old of average intelligence. He was short on rest and no doubt grieving over the loss of his child, but was generally alert during the questioning. Louis acknowledged all of the officers’ questions and gave responsive, coherent answers. The circuit court concluded Louis’s grief and lack of sleep did not render him particularly susceptible to coercion.
¶24 Against that backdrop, we do not view the confession as the product of overwhelming police pressure. Louis was interviewed at the police station, but was told he was free to leave. He was offered breaks during the approximately three-hour questioning. And although the officers used aggressive tactics to elicit the confession, none were so overbearing that we must consider Louis’s confession the product of police stratagem rather than free will. The two interviewing officers adopted a permissible “good cop/bad cop” strategy. See State v. Owen, 202 Wis. 2d 620, 642, 551 N.W.2d 50 (Ct. App. 1996). They confronted Louis with incriminating medical evidence that they believed inconsistent with his explanation of events, an acceptable tactic that does not amount to “the utilization of overwhelming force or psychology.” Barrera v. State, 99 Wis. 2d 269, 292, 298 N.W.2d 820 (1980) (citing Krueger v. State, 53 Wis. 2d 345, 356, 192 N.W.2d 880 (1972)). The exchange between Louis and the interviewing officers became heated at times, but a confrontational tone to the questioning does not establish coercion. See State v. Markwardt, 2007 WI App 242, ¶¶41-42, 306 Wis. 2d 420, 742 N.W.2d 546.
¶25 We conclude the circuit court properly denied Louis’s suppression motion. Louis’s confession is therefore admissible at his new trial.
