State v. Quentin L. Rogers

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 3, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP759-CR Cir. Ct. No. 2013CF83

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

QUENTIN L. ROGERS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Fond du Lac County: ROBERT J. WIRTZ, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Reilly, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP759-CR

¶1 PER CURIAM. Quentin L. Rogers appeals from a judgment
convicting him after a jury found him guilty of three counts of retail theft as a
repeater. He also appeals from an order denying his motion for postconviction
relief in which he alleged Brady/discovery violations, prosecutorial misconduct,
ineffective assistance of trial counsel, and additionally sought postconviction
testing of physical evidence for fingerprints and DNA.1 We affirm.

Background

¶2 The State charged Rogers with the following three counts of retail
theft stemming from incidents that took place at a Walmart: count one, taking a
computer valued under $500 on February 11, 2013; count two, taking a computer
valued over $500 but less than $5,000 on February 12, 2013; and count three,
intentionally removing an anti-theft device with the intent to steal another
computer, also on February 12, 2013. At trial, Rogers’ defense was one of
misidentification regarding the first two counts. He argued he was not the suspect
observed on surveillance videos from the first two incidents or the suspect who
sold the stolen computers. As to count three, Rogers’ defense was that although
he was the person on the surveillance video, he did not take anything.

¶3 The State’s evidence against Rogers fell into four main categories:
(1) testimony by Walmart employee Lucas Viner who personally observed and
followed Rogers during the incident that formed the basis for count three;
(2) surveillance videos from the store and testimony by Walmart loss prevention
associate Lisa Clark describing the videos; (3) testimony by Darryn Shipton and

1
See Brady v. Maryland, 373 U.S. 83 (1963).

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No. 2020AP759-CR

Erick Johnston claiming Rogers sold them computers, one of which was later
determined to be stolen from Walmart; and (4) testimony from Detective Patrick
Primising related to clothing that was located at the residence of Rogers’ then-
girlfriend, Vicki Brown, which the State argued were worn by the suspect in the
surveillance videos.

¶4 The jury found Rogers guilty of the three counts, and he sought
postconviction relief. Following an evidentiary hearing where both Rogers and his
trial counsel testified, the circuit court denied the motion.

¶5 We will present additional background information pertinent to each
of the issues Rogers pursues on appeal in the discussion that follows.

Discussion

(1) Alleged Brady/discovery violations by the State

¶6 Rogers first asserts that the State violated its obligations under
Brady and WIS. STAT. § 971.23(1) (2019-20) by failing to disclose Shipton’s
deferred agreement and what Rogers contends was an improper single-photo
identification procedure.2 Under Brady, the State must turn over to a defendant
evidence that is material to either guilt or punishment. State v. Harris, 2004 WI
64, ¶12, 272 Wis. 2d 80, 680 N.W.2d 737. “[E]vidence is material only if there is
a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is a

2
WISCONSIN STAT. § 971.23(1) specifies what a prosecutor must disclose to a defendant
as it relates to discovery and inspection. All references to the Wisconsin Statutes are to the 2019-
20 version unless otherwise noted. Although Rogers’ trial took place in 2014, the current version
of § 971.23(1) remains the same in all relevant respects.

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No. 2020AP759-CR

probability sufficient to undermine confidence in the outcome.” Id., ¶14 (citation
omitted). Whether a discovery violation has occurred because the State failed to
disclose required information under § 971.23(1) is a question of law we review
without deference to the circuit court. See State v. Rice, 2008 WI App 10, ¶14,
307 Wis. 2d 335, 743 N.W.2d 517 (2007).

a. Shipton’s deferred agreement status at the time of the investigation.

¶7 Shipton, as noted above, was one of the State’s witnesses claiming
that Rogers sold him a computer. The State informed the defense that it intended
to present testimony from Shipton during its case-in-chief and advised that
Shipton had one criminal conviction. However, just before Shipton testified, the
State sought confirmation that it had correctly specified that Shipton had only one
criminal conviction, explaining that it had learned that Shipton had a deferred
prosecution agreement in addition to the one previously disclosed conviction. The
court told the State that a deferred prosecution agreement was not a conviction,
making the State’s earlier assertion that Shipton had one criminal conviction
accurate.3 Rogers did not disagree.

¶8 Shipton went on to testify that he previously had been convicted of
one crime. He further testified that on February 12, 2013, Rogers arrived at
Shipton’s body shop in a blue car. Shipton said that Rogers offered to sell him a
computer with a Walmart tag on it, which Shipton purchased for $275.

3
At trial, the State said Shipton was subject to a deferred prosecution agreement. In his
postconviction motion, Rogers claimed Shipton was subject to a deferred judgment agreement
and provided supporting documentation to this effect. On appeal, Rogers, at times, more
generally contends that Shipton was subject to a deferred agreement. We will do the same
because the precise nature of the agreement does not impact our analysis.

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No. 2020AP759-CR

¶9 Rogers argues the State violated Brady by failing to disclose
Shipton’s deferred agreement, which gave Shipton a motive to lie to police about
how he received the stolen computer; namely, to avoid revocation of the deferred
agreement. Assuming without deciding that the State erred when it failed to
disclose Shipton’s deferred agreement before trial, Rogers has not shown that
there is a reasonable probability that even if the jury had learned that Shipton had
been convicted not once, but twice, the result of the trial would have been
different. As a result, he has not shown that the deferred agreement was material
evidence. See Harris, 272 Wis. 2d 80, ¶¶14-15

¶10 The closest Rogers comes to making this showing is by speculating
that the deferred agreement motivated Shipton to lie about how he ended up with
the stolen computer. However, there is nothing in the record to suggest that
Shipton was involved in the underlying crimes so as to compel him to lie to shift
suspicion and avoid being implicated. Rogers’ conclusory allegations are
insufficient to support his claim of a Brady violation

¶11 Rogers additionally contends that WIS. STAT. § 971.23(1)(f), which
requires disclosure of the criminal record of witnesses on the State’s witness list,
extends to deferred charges. As support, he relies on State v. White, 2004 WI App
78, ¶25, 271 Wis. 2d 742, 680 N.W.2d 362, where we held that “[a] witness’s
probationary status is relevant [and should be disclosed] because it and the fear of
possible revocation are pertinent to the material issue of whether the witness has
‘ulterior motives’ to shape his or her testimony.” Rogers acknowledges that
Shipton was not on deferred status at the time of trial, but suggests that White
applies because Shipton was on deferred status when the incident was
investigated. We are not persuaded that we should adopt Rogers’ broad reading of
White so as to apply it to the circumstances presented.

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No. 2020AP759-CR

b. Single-photo identification.

¶12 We turn to Rogers’ claim that the use of a single photo, which was
not disclosed to the defense before trial, effectively constituted an improper
showup. Rogers submits that the State’s failure to disclose the improper
identification procedure that was used amounted to the suppression of evidence
that was favorable to him in violation of Brady and WIS. STAT. § 971.23(1).

¶13 During cross-examination, Shipton testified that he was shown a
picture lineup. Outside the presence of the jury, trial counsel objected that the
State had not provided information about a lineup. Detective Primising
subsequently explained that he asked Shipton to identify Rogers by showing him a
single Department of Corrections (“DOC”) photo of Rogers. Trial counsel made
no further objection. Consequently, we agree with the State that Rogers forfeited
his argument that the State violated Brady and WIS. STAT. § 971.23(1) for not
disclosing the single-photo identification procedure.4 See State v. Delgado, 2002
WI App 38, ¶12, 250 Wis. 2d 689, 641 N.W.2d 490 (holding that under the
forfeiture rule, a specific, contemporaneous objection is required to preserve a
claim of error for appeal).

(2) Prosecutorial Misconduct

¶14 Rogers next asserts that the prosecutor committed misconduct by
knowingly asking the jury to draw a false inference, which warrants reversal based
either on plain error or in the interest of justice. During rebuttal, the prosecutor

4
We will, however, address the merits of this issue later in this decision within the rubric
of ineffective assistance of counsel.

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No. 2020AP759-CR

argued that he did not know how long Rogers was in jail following his
February 12, 2013 arrest and suggested that Rogers may have been released from
custody before the suspect sold the computer to Johnston on February 13, 2013.
Rogers argues that this was false and the prosecutor knew or should have known
that this was false. He submits that he remained in jail for months on a probation
hold while he awaited his revocation proceedings.

¶15 Rogers acknowledges that the lack of a contemporaneous objection
precludes direct review, but asserts that the misconduct is subject to review as
plain error. The plain error doctrine permits appellate courts to review
“fundamental” errors that are otherwise forfeited by the failure to object in the
circuit court. State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d
77. Appellate courts will deem an error to be plain only “sparingly” and “[t]o
qualify … the error must be obvious and substantial[,] and so fundamental that a
new trial or other relief must be granted even though the action was not objected
to at the time.” State v. Bell, 2018 WI 28, ¶12, 380 Wis. 2d 616, 909 N.W.2d 750
(internal quotation marks omitted; second set of brackets in Bell). Rogers
additionally contends that prosecutorial misconduct can be grounds for reversal in
the interest of justice when the real controversy was not fully tried, regardless of
the lack of contemporaneous objection. See State v. Weiss, 2008 WI App 72, ¶17,
312 Wis. 2d 382, 752 N.W.2d 372.

¶16 Prosecutorial misconduct violates due process if it “poisons the
entire atmosphere of the trial[.]” State v. Lettice, 205 Wis. 2d 347, 352, 556
N.W.2d 376 (Ct. App. 1996) (citation omitted). Reversal on this basis is drastic
and should be approached with caution. Id. It is the defendant’s burden to
establish that it occurred. State v. Harrell, 85 Wis. 2d 331, 337, 270 N.W.2d 428
(Ct. App. 1978).

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No. 2020AP759-CR

¶17 During closing arguments, trial counsel argued that if the thief sold
Shipton a computer on February 12, 2013, and sold Johnston a computer the next
day, i.e., February 13, 2013, then Rogers could not be the thief because he was
arrested and jailed the night of February 12. During rebuttal, the prosecutor
asserted:

There was testimony—or not testimony, but there was
argument that there’s no way that these computers that
Mr. Shipton had and that … Erick [Johnston]…, that they
bought them from Mr. Rogers. Well, if you look back in
your notes, if any of you took as copious notes as I hope
you did, the first computer was bought on February 12th.
That would be, presumably, between the first two instances
and the third instance. And then, as far as time[ ]wise, time
line goes, we don’t know exactly when the second
computer was sold to [Johnston]. We also don’t know how
long Mr. Rogers was in jail. He’s not in jail now. So, we
don’t know when he got released from jail. Just because he
was arrested that night doesn’t mean that he has lived there
in perpetuity until we’re here today. Clearly, that’s not the
case. So, I think that’s kind of a red herring for you to try
and say oh, well, he couldn’t have done it. He got arrested.
Well, not everyone gets arrested and is kept. I mean, this
wasn’t a homicide. This isn’t a case where he’s—that he’s
been in solitary confinement.

Rogers contends that he was not released from custody on February 13, 2013,
which the prosecutor should have known.

¶18 We agree with the State that Rogers’ argument is based on the hazy
nature of the timeline in the case.5 See State v. Bvocik, 2010 WI App 49, ¶13, 324
5
During her testimony at the Machner hearing, trial counsel testified about the
confusion surrounding the timing of the events and her efforts to use that confusion to Rogers’
advantage by arguing that he was in custody at the time Johnston purchased his computer. See
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). For instance, trial counsel
pointed out that when Shipton and Johnston referred to Johnston buying his computer “the next
day,” the inference was that they meant February 13, 2013, which was helpful to the defense,
even though trial counsel believed the sale to Johnston actually took place later in the day on
February 12, 2013.

(continued)

8
No. 2020AP759-CR

Wis. 2d 352, 781 N.W.2d 719 (explaining that we consider the entire record to
determine whether prosecutorial misconduct affected the fairness of the trial).
Viner testified that he witnessed Rogers stealing a computer the night of
February 10, 2013. He additionally testified that he thwarted Rogers’ next attempt
the following night and called the police. Police officers, however, testified that
they were dispatched to Walmart on February 12, 2013—not February 11, 2013—
to arrest Rogers.

¶19 Meanwhile, Shipton testified he bought the computer from Rogers
on February 12, 2013. Johnston testified that he could not remember the exact
date when he bought his computer from Rogers. However, he testified that after
Rogers sold a computer to Shipton, he bought one the next day.
Detective Primising testified he met with Rogers in jail on February 13, 2013.

¶20 As highlighted by the State, the evidence did not clearly establish
when Johnston bought the computer nor did it show how long Rogers spent in jail.
There were various windows of opportunity when Johnston could have made the
purchase. Moreover, there was no reason for the State to know in advance that
Rogers was going to argue in his closing argument that he could not have been the
thief based on Johnston’s “next day” testimony. The State would have had no
reason to anticipate that the duration of Rogers’ time in jail would have been
relevant. Having reviewed the record, we are not convinced that the prosecutor’s

Indeed, a police report, dated shortly after the incidents, which was accepted as an exhibit
during the Machner hearing indicates that Shipton told police that Johnston purchased a
computer later during the same day as Shipton on February 12, 2013. A separate written
statement from Johnston that was also accepted as an exhibit at the Machner hearing, dated
shortly after the incident also indicates Johnston purchased a computer “a couple hours” after
Shipton. Rogers was not arrested until approximately 11:00 p.m. on February 12.

9
No. 2020AP759-CR

actions constitute misconduct, let alone plain error. As such, there is no reason for
a new trial in the interest of justice.

(3) Ineffective Assistance of Trial Counsel

¶21 Rogers claims his trial counsel was ineffective for failing to present
testimony from Rogers’ probation officer, Raven Berry, and for failing to object to
the previously mentioned errors along with what he contends was improper
testimony from Viner and Detective Primising. To establish a claim of ineffective
assistance of counsel, a defendant must show both that counsel’s performance was
deficient and that such performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). “To prove constitutional deficiency, the
defendant must establish that counsel’s conduct falls below an objective standard
of reasonableness.” State v. Love, 2005 WI 116, ¶30, 284 Wis. 2d 111, 700
N.W.2d 62. “To prove constitutional prejudice, the defendant must show that
‘there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. (citations and
one set of quotation marks omitted). A reviewing court need not address both
prongs of the analysis if the defendant makes an insufficient showing on either
one. Strickland, 466 U.S. at 697.

a. Failure to call Raven Berry as a witness.

¶22 Rogers argues that trial counsel was ineffective for failing to present
testimony from his probation agent, Raven Berry, who was unable to identify
Rogers in some of the surveillance videos. Rogers wanted Berry to be called as a
witness and informed trial counsel of this. Given that his defense was

10
No. 2020AP759-CR

misidentification, Rogers contends that the failure to present this testimony was
objectively unreasonable and deficient.

¶23 At the Machner hearing, Rogers’ trial counsel explained that
although Berry was unable to identify Rogers in two videos, she did identify him
in the third. Trial counsel testified that she considered calling Berry as a witness
but ultimately chose not to for the following reasons:

Because she [i.e., Berry] could identify him on the third
tape, which only went to exacerbate the fact that he was
there, pushing a cart, putting a computer in it, taking a
computer out. Mr. Rogers had a very distinctive walk, gait.
If I recall—I didn’t rewatch the videos, but I think in all
three videos he was holding onto his phone and he held the
phone the same way, he walked the same way. It was very
distinctive.

I felt, if I put her on the stand, it would only, like I said,
exacerbate that was him in that video … and if we would
have had another person to confirm that that was him in
that third video, that that was very likely the person in the
second and the first video. So, I didn’t want to call another
person to point out the fact that it was very clearly Mr.
Rogers in that third video.

Trial counsel made a reasonable strategic decision not to call Berry as a witness
and, therefore, did not perform deficiently. See State v. Elm, 201 Wis. 2d 452,
464-65, 549 N.W.2d 471 (Ct. App. 1996) (explaining that “[a] strategic trial
decision rationally based on the facts and the law will not support a claim of
ineffective assistance of counsel”).

¶24 Berry did not say that the man in the two videos was not Rogers,
only that she could not testify that it was him. Our confidence in the reliability of
the proceedings is not undermined by the failure to present Berry’s inconclusive
testimony on this point. See Love, 284 Wis. 2d 111, ¶30 (explaining that when

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No. 2020AP759-CR

analyzing prejudice, “[t]he focus of the inquiry is not on the outcome of the trial,
but on the reliability of the proceedings” (internal quotation marks omitted)).

b. Failure to object to Viner’s testimony.

¶25 Rogers contends that trial counsel failed to object to hearsay and
confrontation violations by Viner. Viner, a Walmart employee, testified that
during his shift he witnessed a man with a computer in his cart, and that later, an
employee brought Viner a security device that had been removed from a
computer. The prosecutor then asked Viner whether he had heard anything else
about the security device, to which Viner responded:

The next evening when I reported to work at 7:00, I was
informed that my suspicion was correct, that the gentleman
who I saw with the computer in his cart is, in fact, the
person who removed the security device from that
computer and took it and, in fact, he was in the night
previous to that as well.

¶26 The extent of Rogers’ showing as to prejudice is his contention that
“[t]he testimony was prejudicial because it involved an unknown [third] party
opining on the ultimate question for the jury to answer” without allowing the
defense an opportunity to confront the hearsay declarant and question the basis for
this opinion or whether it was actually given. This conclusory assessment of the
significance of the unobjected-to testimony is inadequate to show prejudice. See
Love, 284 Wis. 2d 111, ¶30; see also State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992) (undeveloped legal arguments).

c. Failure to object to Detective Primising’s testimony.

¶27 According to Rogers, trial counsel should have objected to
Detective Primising’s testimony about Brown, Rogers’ then-girlfriend, and the

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No. 2020AP759-CR

items of clothing seized from her apartment. Rogers contends
Detective Primising’s testimony was “an egregious example of narrative
testimony” that included hearsay and improper lay opinion. Detective Primising
testified:

[Brown] indicated that she was not aware of Quentin
stealing anything. He did have some belongings at the
residence. She was the person that paid the rent and he had
been staying there for approximately a week. We asked her
if she could show us where his clothing was. She said she
certainly would. Took us into a bedroom which appeared
to be her bedroom. She pulled some shoes out from under
her bed and there were several jackets that she said were
his behind the door to the bedroom.

Detective Primising additionally testified that various items of clothing retrieved
from Brown’s home matched the clothing the man in the surveillance videos was
wearing.

¶28 Rogers fails to develop an argument as to prejudice related to the
form of Detective Primising’s testimony. As for trial counsel’s lack of an
objection to Detective Primising’s testimony regarding what Brown told him,
Rogers simply states, without further development, that the lack of an objection
allowed the State to pre-emptively discredit Brown’s testimony that was helpful to
Rogers. Again, Rogers’ conclusory assessment of the significance of the
unobjected-to testimony is inadequate to show prejudice. See id.; see also Pettit,
171 Wis. 2d at 646-47.

¶29 Additionally, any objection to the manner of Detective Primising’s
testimony—such as his statement that Rogers wore “the PellePelle jacket” during
“the second incident”—would have only prompted Detective Primising to
rephrase his answer, which does not result in reasonable probability that the

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No. 2020AP759-CR

outcome of Rogers’ trial would have been different. See Love, 284 Wis. 2d 111,
¶30.

d. Failure to object to tainted in-court identification.

¶30 We return to Rogers’ claim that the use of a single photo, which was
not disclosed to the defense before trial, effectively constituted an improper
showup, which tainted Shipton’s in-court identification. Rogers contends that trial
counsel was ineffective for forfeiting an objection on this basis.

¶31 When reviewing challenged identification procedures, the reliability
of the identification is the “linchpin” for determining admissibility. See State v.
Roberson, 2019 WI 102, ¶3, 389 Wis. 2d 190, 935 N.W.2d 813 (citations
omitted). “Due process requires that evidence infected by improper police
conduct from which there is a substantial likelihood of misidentification will be
excluded unless the State proves that under the totality of circumstances bearing
on the identification, it is nonetheless reliable.” See id., ¶44.

¶32 Even if Rogers met his burden of proving an impermissibly
suggestive mode of identification, we conclude that under the totality of the
circumstances, the identification was reliable. Shipton testified that he first met
Rogers when Rogers came to his body shop in February 2013. Shipton spoke to
Rogers for about twenty minutes before buying the computer from him. In total,
Shipton spoke to Rogers for about forty-five minutes. Johnston, Shipton’s
employee, bought a computer from Rogers shortly after Shipton and police found
a text message from February 13, 2013, from Johnston to Rogers in Rogers’
phone. This message bolsters the reliability of Shipton’s identification of Rogers
as the person who sold him the computer.

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No. 2020AP759-CR

¶33 “Due process does not require the suppression of evidence with
sufficient ‘indicia of reliability.’” Id., ¶3 (citation omitted). Given that the circuit
court would have admitted Shipton’s identification over any objection by trial
counsel, our confidence in the reliability of the proceedings is not undermined by
trial counsel’s failure to so object. See Love, 284 Wis. 2d 111, ¶30.

e. Failure to present jail records

¶34 Next, Rogers contends that trial counsel was ineffective for
forfeiting an objection to the prosecutor’s false closing arguments and for failing
to have jail records to show that Rogers was in custody, which would have
supported counsel’s argument. At the Machner hearing, trial counsel offered her
reasons for not objecting, which included not wanting to draw attention to the
prosecutor’s argument and her desire to have the jury follow the instructions it was
given and focus on the exculpatory evidence that had been presented, not the
arguments of counsel.

¶35 Rogers’ disagreement with trial counsel’s strategy in this regard is
insufficient to establish that counsel’s performance fell below an objective
standard of reasonableness. See Love, 284 Wis. 2d 111, ¶30. Moreover, when it
addressed this issue, the circuit court explained that “the idea that the [c]ourt
would have sustained an objection, reopened the testimony, had parties go into an
explanation about what the jail records showed … I think, is far-fetched.” Our

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No. 2020AP759-CR

confidence in the reliability of the proceedings is not undermined by trial
counsel’s failure to object and attempt to introduce jail records.6 See id.

(4) Testing of Evidence

¶36 Lastly, Rogers argues that the circuit court erroneously exercised its
discretion when it denied testing of the physical evidence, specifically, anti-theft
security devices, computers, and computer boxes, for fingerprints and DNA. At
the outset we note that neither State v. Lee, 192 Wis. 2d 260, 531 N.W.2d 351 (Ct.
App. 1995), vacated in part by 197 Wis. 2d 959, 542 N.W.2d 143 (1996), nor
WIS. STAT. § 165.79(1), the authority on which Rogers relies to justify his request
for postconviction fingerprint testing, clearly supports his position. Rogers asserts
that “Lee is no longer of precedential value,” but nevertheless contends that we
should apply its rationale here because “no other published case has established an
alternative standard.” We decline this invitation. Further, Rogers has failed to
develop a convincing argument that WIS. STAT. § 165.79(1) even applies to a
request for the postconviction testing he seeks let alone that the factors articulated
in Lee—where the request for testing took place pretrial—are applicable here.7

6
Rogers argues that the prejudice from trial counsel’s alleged errors “is largely from
their aggregate effect[.]” Whether viewed separately or together, the omissions complained of do
not undermine our confidence in the reliability of the proceedings. “Zero plus zero equals zero.”
Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752 (1976).
7
WISCONSIN STAT. § 165.79 reads in relevant part:

(continued)

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No. 2020AP759-CR

¶37 The applicable statute with regard to postconviction DNA testing is
WIS. STAT. § 974.07. A court may grant such a motion only if the defendant
satisfies a strict set of statutory criteria set forth in § 974.07(7)(a) or (b). See State
v. Denny, 2017 WI 17, ¶71, 373 Wis. 2d 390, 891 N.W.2d 144.

¶38 Here, the circuit court explained that it was “not convinced that
DNA is going to help solve anything in this case.” Rogers did not establish the
applicability of WIS. STAT. § 974.07(7)(a) or (b) criteria. In particular, even if
there was evidence of a third party’s DNA profile or an absence of Rogers’ DNA,
those results would not create a reasonable probability either that Rogers would
not have been prosecuted or convicted, see § 974.07(7)(a)2., or that the outcome
of the proceedings would have been a more favorable outcome for him, see
§ 974.07(7)(b)1., given the other evidence that incriminated him. We additionally
note in passing that it is not even clear that the State possesses the evidence

Evidence privileged. (1) Evidence, information and analyses
of evidence obtained from law enforcement officers by the
laboratories is privileged and not available to persons other than
law enforcement officers nor is the defendant entitled to an
inspection of information and evidence submitted to the
laboratories by the state or of a laboratory’s findings, or to
examine laboratory personnel as witnesses concerning the same,
prior to trial, except to the extent that the same is used by the
state at a preliminary hearing and except as provided in [WIS.
STAT. §] 971.23. Upon request of a defendant in a felony action,
approved by the presiding judge, the laboratories shall conduct
analyses of evidence on behalf of the defendant.

(Emphasis added.) Rogers relies on the italicized language, asserting that there is nothing that
precludes it from applying in the postconviction setting. We note that he does not direct us to any
case law that supports his position.

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No. 2020AP759-CR

Rogers seeks to test, which is a statutory prerequisite.8 See § 974.07(2) (“[A]fter
being convicted of a crime …, a person may make a motion in the court … for an
order requiring forensic [DNA] testing of evidence to which all of the following
apply: … The evidence is in the actual or constructive possession of a government
agency.”).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

8
Insofar as Rogers challenges the State for making this new argument on appeal, there is
a distinction between an appellant’s duty to raise all objections at the circuit court level and the
respondent’s freedom to raise new arguments for the first time on appeal. See, e.g., State v. Holt,
128 Wis. 2d 110, 125, 382 N.W.2d 679 (Ct. App. 1985), superseded by statute on other grounds.

18