Felony murder defendant gets new trial in light of new evidence

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 31, 2011 – The District I Wisconsin Court of Appeals used its power of discretionary reversal to grant a new trial to Kenneth Davis, convicted and sentenced to 60 years in prison for felony murder.

In 2000, three men committed a burglary that resulted in the death of a resident. Police hauled Davis in for questioning. The detective testified that Davis admitted being present at the burglarized home, but asked for an attorney when he learned he could not speak off the record.

Police wrote down a summary of the interview with Davis, and asked whether the statements were accurate after Davis asked for an attorney. The detective testified that Davis verified the accuracy of the statement but refused to sign it.

In addition, a co-defendant Armond Henderson, who entered a plea agreement, testified that Davis was a co-actor in the burglary and shooting, and Davis’ former cellmate Richard Ringstad, testified that Davis admitted being involved in the robbery while the two were housed together.

Based on the testimony of the detective, Henderson and Ringstad, Davis was convicted. But after sentencing, Davis learned that Henderson and Ringstad may have lied. In his post-conviction motion, he also asserted that the detective’s testimony was inadmissible.

In State v. Davis, 2010AP1856 (Aug. 23, 2011), the appeals court granted Davis a new hearing, concluding that its power of discretionary reversal was warranted because the real controversy in the case – whether Davis was the third burglar – was not fully tried.

The appeals court ruled that the jury did not have the opportunity to weigh the detective’s testimony against new evidence, regardless of whether admitted in violation of Edwards v. Arizona, 451 U.S. 477 (1981). Thus, it was not harmless error to admit it.

New testimony revealed that Henderson may have told others Davis was not involved. The state argued that such evidence went to Henderson’s credibility and was not affirmative evidence of innocence sufficient to warrant a new trial. The appeals court disagreed.

“In its closing arguments, the State heavily emphasized Henderson’s testimony that Davis was the third robber,” Judge Kessler wrote. “We cannot conclude that the State’s argument and the trial testimony to which it referred had no effect on the jury verdict.”

The appeals court also noted new testimony that Ringstad lied about Davis’ jailhouse confession to increase his chances of a transfer to a minimum security facility.

“This testimony, combined with the testimony already described, directly contradicts Ringstad’s testimony – a key element in the State’s case against Davis. The jury never had an opportunity to weigh these competing versions of the critical facts in the trial,” Judge Kessler explained.