COURT OF APPEALS

DECISION

DATED AND FILED

November 3, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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).
No. 2020AP759-CR

3

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’ thengirlfriend, 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. 
No. 2020AP759-CR

4

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. 
No. 2020AP759-CR

5

¶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. 
No. 2020AP759-CR

6

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. 
No. 2020AP759-CR

7

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).
No. 2020AP759-CR

8

¶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)
No. 2020AP759-CR

9

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. 
No. 2020AP759-CR

10

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 
No. 2020AP759-CR

11

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 
No. 2020AP759-CR

12

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 
No. 2020AP759-CR

13

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 
No. 2020AP759-CR

14

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. 
No. 2020AP759-CR

15

¶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 
No. 2020AP759-CR

16

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)
No. 2020AP759-CR

17

¶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. 
No. 2020AP759-CR

18

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.