STATE v. HENLEY

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rmstrong-122700 N.W.2d 98. It follows, then, that this standard also applies to a circuit court's inherent authority to grant a new trial.

In Harp, the court of appeals addressed the proper standard with which a circuit court must decide a motion for a new trial under § 805.15 brought by a criminal defendant. It is important to note that, in my view, and consistent with the majority's holding, Wis. Stat. § 805.15 is not an available means for a criminal defendant to seek postconviction relief. The court of appeals did not directly address this issue in Harp, but its holding, that a circuit court may grant a new trial only when the real controversy has not been fully tried or justice has miscarried, is instructive and consistent with the appropriate standard I am satisfied should be applied.

¶ 123. Thus, I would hold that a circuit court may grant a new trial under its inherent authority only where (1) "the real controversy has not been fully tried," or (2) "it is probable that justice has for any reason miscarried." Wis. Stat. §§ 751.06, 752.35; see State v. Hicks, 202 Wis.2d 150, 160-61, 549 N.W.2d 435 (1996). As we have previously noted, a request for a new trial is an extraordinary remedy, and a court should grant such a request only "in exceptional cases." See Armstrong, 283 Wis. 2d 639, ¶ 114.

¶ 124. With this standard and these limitations, recognizing a circuit court's inherent authority to grant a new trial does not give a defendant endless opportunities for a new trial or upset the principle of finality as the majority asserts. Majority op., ¶¶ 74-76. Rather such a remedy is restricted to a limited number of defendants. Henley is within the standard and the limitations since he remains without the opportunity for a full trial of the real controversy in this case unless he receives a new trial.

¶ 125. The majority insists that a circuit court's inherent authority is restricted by statutory procedures and time limits, id., ¶¶ 76, 86; however, a court's inherent authority is entirely independent of its statutory authority. The Wisconsin Constitution confers circuit court jurisdiction, and therefore circuit court authority is not constrained by legislative directives. Wis. Const. art. VII § 2; In the Matter of the Guardianship of Eberhardy v. Circuit Court for Wood County, 102 Wis.2d 539, 548, 307 N.W.2d 881 (1981). We have continuously affirmed that a circuit court's inherent authority is entirely independent of any statutory authority. Pulaski, 23 Wis.2d at 142-43 (noting the circuit court's authority to allow withdrawal of a guilty plea is not derived from a statute, but rather stands upon the circuit court's inherent authority).

¶ 126. In Lee, we addressed whether this independent authority was subject to time limits imposed by statute and conclusively stated that it is not. 88 Wis.2d at 245-47. We concluded that the statutory time limit was "regulatory only" and not a jurisdictional bar to the circuit court's consideration of a motion to withdraw a guilty plea. Id. at 246-47. We held that the statute was not a jurisdictional constraint on the authority of the court. Moreover, we stated that any "contention that [the statute] imposes a legislative restriction on the power of the courts to do justice would pose a serious constitutional question." Id. at 247. We concluded that such a limitation was not the legislature's intent, and the circuit court has the authority to consider a motion to withdraw a guilty plea filed after the statutory deadline. Id. Despite this clear statement, neither the majority nor the concurrence acknowledges the consistency with which this court has explicitly affirmed the circuit court's inherent authority:

It is clear, therefore, that Pulaski did not set a jurisdictional time limit for considering a motion to withdraw a plea. Pulaski also makes clear that a motion to withdraw a plea could be made beyond the one-year regulatory period but, unless exceptional circumstances were shown, it would be an abuse of discretion to consider a motion made beyond the time period.

The analysis of Pulaski conclusively demonstrates that a defendant who seeks to withdraw a plea after the regulatory time period would indeed have to show by clear and convincing evidence that exceptional circumstances warranted the invocation of the court's inherent power. Pulaski holds that a defendant has the right to move for withdrawal of his plea within the one-year period but that it is within the discretion of the court, in its inherent power to do justice, to entertain the motion at a later date.

Pulaski did not set a jurisdictional time limit. Neither, we conclude, does the statute. In the interests of sound court administration, the statute reduces the regulatory time to one hundred twenty days. The statute, however, does not deprive the court of jurisdiction. . . .

We conclude that it was within the power and jurisdiction of the county court to consider the motion even though it was brought after the one-hundred-twenty-day period set forth in the statute.

Id. at 246-47 (emphasis added). Thus, the circuit court's use of its inherent authority is not constrained by statutory limitations.

The Escalona bar is similarly not a restriction on a court's inherent authority to grant a new trial in the interest of justice. See State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994). As discussed above, legislatively created limits are not applicable to a court's inherent authority, which is derived from the Wisconsin Constitution. Eberhardy, 102 Wis.2d at 548; Lee, 88 Wis.2d at 247. We emphasized throughout Escalona that our decision was based on an interpretation of the language, purpose, and legislative history of the postconviction relief statute. 185 Wis.2d at 175-78. It would appear, then, that the limitations on postconviction relief described in Escalona do not apply to a case invoking a court's inherent authority.

¶ 127. This does not mean that the statutory framework for postconviction relief under Wis. Stat. ch. 974 is meaningless, however, or that a defendant may ignore the statutory time limits and instead seek relief only under a court's inherent authority. As we have stated, a court should grant a new trial in the interest of justice under its inherent authority only "in exceptional cases" because it is such an extraordinary remedy. Armstrong, 283 Wis.2d 639, ¶ 114. Therefore, a defendant who ignored statutory means for postconviction relief would do so at his peril.

¶ 128. Recognizing the circuit court's inherent authority to perform its justice-seeking function will ensure that the justice system is not so inflexible that it cannot correct errors. As explained above, this will not upset the principle of finality as the majority asserts. Therefore, I would hold that the circuit court had the inherent authority to grant a new trial here because the real controversy in this case has not been fully tried, as I now explain in detail.

B. Review of the Circuit Court's Decision.

¶ 129. I would hold that the circuit court has inherent authority to grant a new trial where the case has not been fully tried or there has been a miscarriage of justice. I would then carefully review the circuit court's decision to grant a new trial. The circuit court mistakenly based its authority to hear Henley's motion for a new trial on Wis. Stat. § 805.15, but there was a valid basis for that determination, so a review of its determination is therefore proper. The circuit court's decision should not be disturbed unless there is "a clear showing" of an erroneous exercise of discretion. Totsky, 233 Wis.2d 371, ¶ 46; Behning, 57 Wis.2d at 186 ("An order for a new trial in the interest of justice is within the discretion of a trial judge and will be reversed only upon a clear showing there has been an abuse of discretion."); McFarlin v. Hewitt, 5 Wis.2d 488, 493, 93 N.W.2d 445 (1958) (stating that the court in reviewing a trial court's order for a new trial "seeks to determine whether the trial court abused its discretion in ordering a new trial. It seeks reasons to sustain the finding of the trial judge."); McCoy v. Terhorst, 188 Wis. 512, 517, 205 N.W. 420 (1925) ("[W]e do not reverse [a trial court's grant of a new trial in furtherance of justice] merely because, upon the record before us, we come to a different conclusion. It must clearly appear that there was an abuse of discretion before we reverse."); John v. Pierce, 176 Wis. 220, 224-25, 186 N.W. 600 (1922) ("A discretion is vested in the trial court to grant a new trial when he feels that the verdict is against the weight of the evidence, and this court will not disturb his action in that respect where the evidence is such that conflicting conclusions may be reached by different persons."). I am satisfied that the circuit court did not erroneously exercise its discretion in granting Henley a new trial.

As is evident from the majority's discussion of the standard of review, the majority does not address whether the circuit court's decision to grant Henley a new trial was an appropriate exercise of its discretion. Majority op., ¶¶ 28-29. Since I would hold the circuit court has the authority to grant a new trial here, I would review that decision under the erroneous exercise of discretion standard. Totsky, 233 Wis.2d 371, ¶ 46; Pulaski, 23 Wis.2d at 142 ("A motion to withdraw a plea of guilty and for a trial, as we deem the defendant's motions to be . . . is a motion directed to the discretion of the court in the interest of justice which the court has the inherent power to hear."); Lee, 88 Wis. 2d at 246 (quoting Pulaski for this proposition); Schill, 93 Wis.2d at 378 (holding a motion to withdraw a guilty plea and grant trial "is addressed to the sound discretion of the trial court and [the supreme court] will not upset the court's ruling unless there is a sufficient showing of abuse of discretion"); Behning, 57 Wis.2d at 186 ("An order for a new trial in the interest of justice is within the discretion of a trial judge and will be reversed only upon a clear showing there has been an abuse of discretion."); Van Gheem v. Chi. Northwestern R.R. Co., 33 Wis.2d 231, 236, 147 N.W.2d 237, 239 (1967) (stating that order granting a new trial in interest of justice will be reversed only where there has been a clear abuse of discretion); Bartell v. Luedtke, 52 Wis.2d 372, 377, 190 N.W.2d 145, 148 (1971) (citing Van Gheem); Werren v. Allied American Mut. Fire Ins. Co., 3 Wis.2d 313, 315, 316, 88 N.W.2d 348 (1958) ("An order for a new trial in the interests of justice is highly discretionary and, in the absence of a clear showing of an abuse of discretion, it will be affirmed.").

¶ 130. The circuit court determined that a new trial was warranted because the real controversy, S.E.S.'s consent, had not been fully tried. A case or controversy has not been fully tried "when the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue in the case. . . ." Hicks, 202 Wis.2d at 160. The court need not find "the probability of a different result on retrial" to find that the real controversy was not fully tried. Id. In its ruling that the real controversy was not fully tried here, the circuit court seemed persuaded by the Seventh Circuit's reasoning in Adams, 453 F.3d at 436, as am I.

¶ 131. In Adams, the Seventh Circuit analyzed Adams' trial and the testimony given by Demain at Hill's trial, and concluded that Adams' counsel made an unreasonable decision in failing to call Demain, as Demain's testimony could have "shed considerable, perhaps conclusive, light on the events of that night." Id., at 436-37. The Seventh Circuit noted several points that would have made Demain's testimony particularly valuable to Adams', and thus also Henley's, defense. First, Demain was "a witness to several key moments in the chronology" of what occurred that night, "where the evidence [was] sharply conflicting." Id. Second, unlike all the other parties involved in the events of that night, Demain had no prior relationship with anyone involved, "thus rendering him [an] impartial and independent" witness. Id. Third, Demain could have testified that the women invited the men up to their room, corroborating Sheets' testimony and "completely undercut[ting] S.E.S.'s version of uninvited strangers bursting into her room." Id. at 437. Fourth, Demain could have testified to seeing S.E.S. and the three men together later in the night, "support[ing] a plausible theory of a consensual encounter." Id.

¶ 132. The Seventh Circuit's description of Demain's testimony and the transcript of Demain's testimony at Hill's trial sharply contradict the majority's characterization of this evidence. The majority dismisses the importance of Demain's testimony as "largely duplicative of what Sheets related in her testimony," and thus concludes that "[i]t cannot be said that such evidence was not placed before the jury." Majority op., ¶ 82. To the contrary, the fact that Demain's testimony would have corroborated Sheets' testimony and contradicted the statements by S.E.S. supports the argument that this evidence would have been extremely valuable to the jury's credibility determination, which was the crux of this case. One such critical point is Demain's testimony that Sheets and S.E.S. invited the men up to their room. This testimony would have significantly undermined S.E.S.'s credibility since he would have been a second witness who contradicted S.E.S. and confirmed Sheets' statements.

¶ 133. The majority also asserts that Demain's testimony on seeing the group smoking outside together "is not critical." Id. The majority further down-plays the importance of this testimony by stating that "we do not know whether this was before or after the sexual assault." Id., ¶ 83. This mischaracterizes Demain's testimony. While Demain was unsure of the exact time he saw the group outside, his testimony demonstrates that it was at least twenty minutes after S.E.S., Adams, and Henley left Demain's room together. Thus, according to S.E.S.'s own testimony, this would have been sometime during or after the assault had begun. Also, while Demain did not specifically name Adams, Henley, and Hill, it is clear from the context of his testimony that he was referring to them when he said "[a]ll three of them were out there." Demain further identified S.E.S. by referring to her as the "tall one," which is how he had previously described her when distinguishing her from Sheets. Such testimony certainly seems to undermine S.E.S.'s credibility because she did not mention smoking outside with the men later that night, and it also "support[s] a plausible theory of a consensual encounter between the men and S.E.S." Adams, 453 F.3d at 437.

¶ 134. Furthermore, as the majority points out, there is a police report that further undermines S.E.S.'s credibility, which was not presented at Henley's trial but contributed to the State's dismissal of Hill's case during his third trial. Majority op., ¶ 18 n. 9. This report indicates that Hill previously told a police investigator that (1) Hill and Demain remained downstairs together for approximately twenty minutes after S.E.S., Henley, and Adams went up to S.E.S.'s room, and (2) S.E.S., Henley, Adams, and Hill rolled marijuana joints together in S.E.S.'s room that they later smoked together downstairs. This documentation of Hill's statements to the police further corroborates Demain's testimony, and thus Henley's version of the events, and calls S.E.S.'s credibility into question.

¶ 135. Thus, the circuit court, armed with the analysis and ruling by the Seventh Circuit, did not err in determining that the real controversy was not fully tried, where the jury was denied the opportunity to hear Demain's critical testimony that went to the heart of the case: S.E.S's credibility and the issue of consent.

C. Court of Appeals' Statutory and Inherent Authority.

¶ 136. The majority's holding that the circuit court lacked any inherent authority to grant a new trial in this case would seem to require the majority to address whether the court of appeals has such inherent authority. However, the majority does not answer that certified question. Of course, this court is not required to answer all of the certified questions when we accept a certification, but generally there should be a good reason for not doing so. See, e.g., State v. Konkol, 221 Wis. 184, 266 N.W. 174 (1936) (refusing to answer a certified question where we determined that jurisdiction was lacking).

In passing the majority notes that the court of appeals has the discretionary authority under Wis. Stat. § 752.35 to grant a new trial in the interest of justice. Majority op., ¶ 63. However, the majority does not further address this issue, nor does it address the question of whether the court of appeals also has the inherent authority to grant a new trial where the real controversy has not been fully tried or there has been a miscarriage of justice.

¶ 137. In this case, where the majority has found that the circuit court did not have the inherent or statutory authority to grant a new trial, even though that court held that the real controversy has not been fully tried, it is appropriate to address whether the court of appeals has such authority. While under the majority's holding this court can still hear a motion for a new trial, "the question of whether justice has been done in an individual case is primarily and initially the concern of the court of appeals." State v. McConnohie, 113 Wis. 2d 362, 368, 334 N.W.2d 903 (1983). For the reasons stated below, I would hold that the court of appeals has both statutory and inherent authority to grant a new trial when the real controversy has not been fully tried or when justice has miscarried.

¶ 138. The legislature has given the court of appeals broad statutory reversal authority:

In an appeal to the court of appeals, 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 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.

Wis. Stat. § 752.35.

¶ 139. In State v. Allen, the court of appeals adopted a narrow interpretation of its own statutory authority, concluding that it authorized the court of appeals to grant such relief only on a direct appeal, and not on a collateral attack. 159 Wis.2d 53, 55-56, 464 N.W.2d 426 (Ct. App. 1990); Wis. Stat. § 752.35. The court in Allen reached that conclusion by focusing on the language authorizing it to "reverse the judgment or order appealed from" and determined that the language limited its authority to a direct appeal from a judgment and did not authorize the court of appeals to go around a motion for postconviction relief to reverse the underlying judgment. 159 Wis.2d at 55-56.

¶ 140. We criticized that holding in Armstrong and have found no such limitation on our own statutory discretionary reversal authority under a nearly identical statute. 283 Wis.2d 639, ¶ 113 n. 25; Wis. Stat. § 751.06. We determined that the language of the statute need not be read so narrowly and that the court of appeals has the authority to "vacate the trial court's order denying the motion for new trial with directions for the circuit court to grant the motion." Armstrong, 283 Wis.2d 639, ¶ 113 n. 25. Because I conclude that Allen improperly interpreted § 752.35, I would clearly overrule Allen and hold that the court of appeals has statutory authority to grant a new trial, both on a direct appeal and on a collateral attack, where the real controversy has not been fully tried or there has been a miscarriage of justice.

¶ 141. Furthermore, the court of appeals has the same broad inherent authority to grant a new trial where the case has not been fully tried or there has been a miscarriage of justice, as this court and the circuit court. See State v. Johannes, 229 Wis.2d 215, 229, 598 N.W.2d 299 (Ct. App. 1999); Wis. Const. art. VII §§ 2, 5; Cannon, 196 Wis. at 536 ("The inherent power of the court is . . . the power to administer justice whether any previous form or remedy has been granted or . . . and the power to provide process where none exists.") (quoting In re Bruen, 172 E 1152 (Wash. 1918)). Thus, consistent with the reasoning above regarding the circuit court's inherent authority, I would hold that the court of appeals also has the inherent authority to grant Henley a new trial in this case.

D. Our Statutory and Inherent Authority.

¶ 142. While the majority recognizes that we have the inherent and statutory authority to grant a new trial, majority op., ¶¶ 79-81, given the majority's desire to limit the lower court's authority in this respect, it is important to emphasize that we retain the authority to do so. As we unequivocally stated in Hicks and Armstrong, this court has "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, even where the circuit court has exercised its power to order or to deny a new trial." Hicks, 202 Wis.2d at 159; Armstrong, 283 Wis.2d 639, ¶ 113; Wis. Stat. § 751.06. This case is an appropriate one to emphasize our inherent and express statutory authority.

¶ 143. Furthermore, for the same reasons that I would hold that the circuit court did not erroneously exercise its discretion in granting Henley a new trial, I would hold that since the real controversy in this case was not fully tried, and in order to avoid a miscarriage of justice, we must affirm the order of the circuit court for a new trial.

III. CONCLUSION

¶ 144. In its pursuit of finality at all costs, the majority has ignored the analysis and reasoning of the Seventh Circuit, has failed to apply the correct standard of review to the appropriate exercise of discretion by the circuit court, and has unnecessarily restricted the circuit court's inherent authority and limited its ability to ensure that defendants get a fair trial in every case.

¶ 145. For the reasons set forth herein, I respectfully dissent.

¶ 146. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.