2005 WI 119 S C W UPREME OURT OF ISCONSIN CASE NO.: 2001AP2789 & 2002AP2979 COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Ralph D. Armstrong, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 275 Wis. 2d 275, 683 N.W.2d 93 (Ct. App. 2004 –Unpublished) OPINION FILED: July 12, 2005 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 31, 2005 SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Patrick J. Fiedler JUSTICES: CONCURRED: DISSENTED: ROGGENSACK, J., dissents (opinion filed). WILCOX and PROSSER, J.J., join the dissent. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Jerome Buting and Buting & Williams, S.C., Brookfield, and Barry C. Scheck, Colin Starger, and The Innocence Project, New York, NY and oral argument by Jerome Buting and Barry C. Scheck. For the plaintiff-respondent the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general. An amicus curiae brief was filed by Robert R. Henak and Henak Law Office, S.C., Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers. An amicus curiae brief was filed by Keith A. Findley, Byron C. Lichstein, John A. Pray, and University of Wisconsin Law School, Madison, on behalf of the Wisconsin Innocence Project. 2005 WI 119 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2001AP2789 & 2002AP2979 (L.C. No. 1980CF495) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent, FILED v. JUL 12, 2005 Ralph D. Armstrong, Cornelia G. Clark Defendant-Appellant-Petitioner. Clerk of Supreme Court REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 LOUIS B. BUTLER, JR., J. Ralph Armstrong seeks review of an unpublished court of appeals' decision that affirmed the circuit court's orders denying Armstrong's motions to vacate his judgment of conviction and for reconsideration. State v. Armstrong, Nos. 2001AP2789 and 2002AP2979, unpublished slip. op., ¶1 (Wis. Ct. App. May 27, 2004). The court of appeals determined that newly obtained DNA tests that established Armstrong was not the donor of certain biological evidence found at a 1980 murder scene did not create a No. 2001AP2789 & 2002AP2979 reasonable probability that the outcome would be different on retrial. ¶2 We reverse the court of appeals' decision. Because (1) the DNA evidence excluding Armstrong as the donor of the physical evidence was relevant to the critical issue of identification; (2) the jury did not hear this evidence; and (3) instead, the State used the physical evidence assertively and repetitively as affirmative proof of Armstrong's guilt, we conclude that the real controversy was not fully tried. Therefore, we reverse the circuit court's order and remand this matter to the circuit court with directions to grant Armstrong's motion to vacate the judgment of conviction and to order a new trial.1 I ¶3 On March 24, 1981, Ralph Armstrong was convicted of first-degree sexual assault and first-degree murder of Charise Kamps, contrary to Wis. Stat. §§ 940.225(1)(a) and 940.01 (1979). Armstrong was later sentenced to life plus 16 years' imprisonment. ¶4 On the afternoon of June 24, 1980, Jane May, Armstrong's fiancée, discovered Kamps' body in Kamps' apartment at 134 W. Gorham Street in Madison, Wisconsin. Kamps was found 1 According to representations made by the State at Armstrong's latest postconviction motion hearing, Armstrong has to serve the remainder of a 30- to 150-year sentence in New Mexico. 2 No. 2001AP2789 & 2002AP2979 face down in her bed smeared with blood, naked with a bathrobe belt draped across her back. ¶5 Pathologist Robert Huntington concluded that Kamps most likely died from strangulation. He found substantial injury to Kamps' anus, vagina, and throat consistent with the insertion of a blunt, unyielding object.2 He also found six bruises in tissue below the scalp consistent with being struck by a blunt object. Huntington estimated that the time of death was between midnight and 3:00 a.m. on June 24. ¶6 Although the bed and pillows were blood-soaked, investigators found no traces of blood elsewhere in the apartment, including the bathroom. The police also found no indication the killer attempted to clean the scene or himself or herself in the apartment.3 Police gathered forensic evidence, 2 Brian Dillman, Kamps' boyfriend, testified that a nine to ten inch tall glass flower vase with a wide base and tapering to the top was missing from Kamps' nightstand when he viewed the apartment after Kamps' murder. There is no indication in the record that this glass vase was ever recovered or tested. 3 On this point, we note that Officer Dean Fischer, a uniformed special investigator who works crime scenes, testified that he searched Kamps' apartment to identify anything which potentially was evidence; that he did not observe blood or stains anywhere else in the apartment aside from the bed; that he specifically checked the bathroom; that the bathroom in Kamps' apartment was "orderly and clean"; that he did not observe any stains in the bathroom; and that he found no blood in the bathroom. 3 No. 2001AP2789 & 2002AP2979 including fingerprints, head and pubic hairs found on and around the body and elsewhere in the apartment, purported blood evidence, and a bathrobe found on the floor next to Kamps that later revealed semen stains. ¶7 Armstrong and Kamps knew each other and were friends through Armstrong's fiancée. Armstrong admitted to being in Kamps' apartment for a brief period beginning around 9:15 and 9:25 p.m. the evening of June 23, just hours before Kamps was murdered. However, Armstrong claimed that he was not there at the times when Kamps was murdered. ¶8 The State built its case against Armstrong on the following: (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 When specifically asked, "Was there any evidence, anything which you would have noticed which would have indicated that something had been cleaned up?", Fischer answered, "Nothing that I know of." When specifically asked if any information regarding whether someone had cleaned up in the bathroom had come to his attention, Fischer answered, "No." When asked if Fischer was "specifically looking for anything which would be a clue," Fischer answered "Yes." Thus, the jury heard testimony about whether the murderer cleaned up in Kamps' bathroom before leaving the scene. Compare Roggensack, J., dissenting, ¶172 n.4. That evidence was that the murderer did not. Compare id. 4 No. 2001AP2789 & 2002AP2979 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. ¶9 The following factual background combines the State's points and splits them into two main subheadings: (A) chronology of events on June 23 through June 24, 1980; and (B) evidence that placed Armstrong at the scene. Subsumed under the first subheading includes Armstrong's explanation, and the State's refutation, of his whereabouts. Subsumed under the second subheading includes the witnesses who placed Armstrong at Kamps' apartment around the time of her death, the missing money from Kamps' apartment that implicates Armstrong as the murderer, and, finally, the physical evidence the State claimed that "conclusively" and "irrefutably" established Armstrong was the murderer. A. Chronology of Events on June 23 through June 24, 1980 1. Early Evening ¶10 Charise Kamps spent the evening of June 23, 1980, in the company of her friends, including Ralph Armstrong, and his fiancée, Jane May. May was Kamps' close friend and coworker at the Pipefitter on State Street, Madison, Wisconsin. Kamps was 5 No. 2001AP2789 & 2002AP2979 friends with Armstrong through May. In the early evening of June 23, May invited her coworkers to a small party in her apartment, located above the Pipefitter store at 519 State Street. May, Armstrong, Armstrong's brother (Steve), Kamps, and Armstrong's friend (Greg Kohlhardt) were there. May's coworkers, Judy Marty and Betsy Cornelius, joined the party after the store closed around 5:30 p.m. ¶11 Kamps, Armstrong, and May all consumed alcohol and used cocaine at the party. In addition, Cornelius testified that Kamps, Steve, and Armstrong also smoked marijuana. ¶12 Both Cornelius and Marty testified they observed Armstrong flirting with Kamps, specifically that he sat on her lap and attempted to kiss her. Marty also testified that she overheard Armstrong tell Kamps that they would talk later. Kohlhardt testified that it was Kamps who sat in Armstrong's lap, and that "They were just being——it seems friendly toward each other, laughing and stuff." ¶13 At about 6:00 p.m., Kamps' boyfriend, Brian Dillman, telephoned May's apartment from McGregor, Iowa, and spoke with Kamps. Dillman testified that he loaned Armstrong $500 for the purchase of a car, and that while speaking with Kamps at the party, he overheard Armstrong giving Kamps money and indicating that it was $400 in partial repayment for the loan. May testified that both Kamps and Armstrong had told her about the $400 repayment. Kohlhardt testified that he also witnessed Armstrong giving money to Kamps, but said that he only saw two $20 bills pass between them. 6 No. 2001AP2789 & 2002AP2979 2. 6:30 – 9:00 p.m. ¶14 Following the party at May's apartment, May, Kamps, Kohlhardt, Steve, and Armstrong went to a local restaurant for dinner from about 6:30 to 8:00 p.m., and then bought beer on the way to Kohlhardt's house to watch the television program MASH. A member of the Madison Police verified a newspaper television schedule showing MASH played from 8:00 to 8:30 p.m. that evening. Immediately following the conclusion of MASH, the group left Kohlhardt at Kohlhardt's house. ¶15 There is some confusion as to when the group drove to Armstrong's apartment, located at 5572 Guilford in Fitchburg, Wisconsin, to drop off Steve for the evening. May testified that the group went to Armstrong's apartment after dinner and before watching MASH at Kohlhardt's house. ¶16 However, Kohlhardt testified that Steve joined them watching MASH at Kohlhardt's house following dinner. Further supporting Kohlhardt's testimony was the testimony of Armstrong's neighbor, Patricia Emmerich, who stopped by Armstrong's apartment to meet Steve a few minutes after 9 p.m. and said that Steve, Armstrong, and Kamps were present. Armstrong testified that May was also with them when Emmerich stopped by at 9:00 p.m. but that May was in the bedroom at the time, packing up her things from the previous night's visit. 3. 9:00 p.m. onward ¶17 It is disputed what occurred between 9:00 p.m. and 10:00 p.m. on the evening of June 23, but trial testimony clearly shows that around 10:00 p.m., Armstrong, May, and Kamps 7 No. 2001AP2789 & 2002AP2979 ended up in May's apartment and watched part of the 10:00 p.m. news together while using cocaine. Both May and Armstrong testified that Kamps left May's apartment at about a quarter to 11:00 p.m. and that Armstrong left about 15 minutes later. ¶18 A friend of Kamps, Michael Erdenberger, testified at trial that Kamps called him at his apartment at 10:52 p.m. on June 23. Erdenberger said that Kamps was looking for Dillman. He also said that during their two-minute conversation, Kamps did not seem excited. ¶19 May spoke with Kamps by telephone at some point between 11:00 p.m. and 11:15 p.m. to discuss plans to go water- skiing the next day. May's phone call was the last time any witness admitted to having contact with Kamps. ¶20 Dillman testified that he tried to reach Kamps several times between 2:00 and 2:30 a.m. on June 24 but received a busy signal. Dillman called again between 9:30 and 10:00 a.m. with the same result, and finally called May at about 12:15 p.m. to ask her to stop by Kamps' apartment. ¶21 May testified that at about 12:40 p.m., she discovered Kamps' body, noticing that the telephone receiver was off the hook, as if it had been intentionally placed aside. May then ran back to the Pipefitter and had one of her coworkers call the police. a. Armstrong's Account of His Whereabouts ¶22 Armstrong testified that at about 9:00 p.m., while he, Kamps, and May visited his apartment to drop off his brother, Steve, he telephoned Brent Goodman at 153 Harding Street, 8 No. 2001AP2789 & 2002AP2979 Madison, Wisconsin, to inquire about buying more cocaine. Goodman testified that he had sold cocaine to Armstrong earlier that afternoon and corroborated the 9:00 p.m. telephone conversation with Armstrong, in which Armstrong said that he would stop by Goodman's house in a half-hour. ¶23 Armstrong testified that he, Kamps, and May left Armstrong's apartment and dropped May off at her apartment. In the parking lot behind May's apartment building, Armstrong said that he and Kamps switched from his to Kamps' vehicle, which was parked in the same lot. ¶24 On the way to Goodman's house, Armstrong testified that Kamps invited Armstrong up to her apartment for a beer sometime between 9:15 and 9:25 p.m. Armstrong accepted, and he said he had a half-glass of orange juice and a can of beer. He also testified that he had to move a glass bong off a table so that he could put his drink down, explaining why his fingerprint was found on the bong in Kamps' apartment. Armstrong said he played some music on the stereo and talked with Kamps for a short while before the two continued on to Goodman's. ¶25 At Goodman's, Armstrong testified that he and Kamps purchased about 0.4 grams of cocaine and then returned to May's apartment between 10:00 and 10:30 p.m., where Armstrong, May, and Kamps used the cocaine and watched television. ¶26 Armstrong testified that Kamps left at about 10:45 p.m., and Armstrong said that he left about 15 minutes later to return to his apartment to visit with his brother. Armstrong stated that after he arrived at his apartment, he made several 9