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Vol. 72, No. 8, August 1999 |
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Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
| Appellate Procedure
| Attorneys |
| Campaign Contributions | Criminal Law | Criminal
Procedure |
| Evidence | Frivolous Actions
| Trade Secrets |
Criminal Procedure
Confessions - Admissibility of Statements Obtained After
Invocation of Miranda Right to Counsel
State v. Franklin,
Nos. 98-2420-CR and 98-2421-CR (filed 20 May 1999) (ordered published
30 June 1999)
The defendant was arrested and brought to the police station
for questioning regarding a drug-related killing in which he
was identified as being the driver of the getaway car. It was
undisputed that police detectives, hoping to learn the identity
of the shooter from the defendant, intentionally elected to continue
questioning the defendant after he had invoked his Miranda
right to counsel. The detectives knew that, because they were
violating the defendant's rights under Edwards v. Arizona,
451 U.S. 477 (1981), they would lose the opportunity to use any
self-incriminatory statements obtained from the defendant as
substantive evidence against him. During the interrogation the
defendant identified the person who had done the shooting.
The defendant moved to suppress the statements he made to
the police. The circuit court ruled that, while the Edwards violation
required suppression of any evidence of the defendant's
statements in the state's case-in-chief, because the statements
were voluntarily made, they could be used by the state for impeachment
or rebuttal purposes should the defendant elect to testify at
his trial.
In a decision authored by Judge Eich, the court of appeals
affirmed. An accused person has an absolute right to have counsel
present during custodial interrogation. Miranda v. Arizona,
384 U.S. 436 (1966). Once the Fifth Amend-ment right to counsel
is invoked, all police-initiated questioning must stop until
counsel is present - unless the accused initiates further
communication with the police. See Edwards, supra.
An involuntary statement obtained in violation of these principles
is inadmissible at trial for any purpose. The court concluded,
though, that if the statement is voluntary, even if it was secured
by the police in violation of Miranda and/or Edwards,
it may be used to impeach the defendant's conflicting testimony
- although it is inadmissible in the prosecution's
case-in-chief.
In so holding the court declined to adopt the position of
the defendant that a presumption of involuntariness should attach
to all statements obtained by police after the suspect's
invocation of his or her right to counsel. Instead, the court
looked to those cases that have held that a statement is voluntary
or involuntary depending upon whether it was compelled by coercive
means or improper police practices, a determination that involves
an examination of the "totality of the circumstances"
weighing the defendant's personal characteristics against
coercive police conduct.
Interrogation - Right to Counsel -
Invoking Massiah Right to Counsel
State v. Dagnall,
No. 98-2746-CR (filed 27 May 1999) (ordered published 30 June
1999)
The defendant was charged with first-degree intentional homicide
in Dane County and a warrant was issued for his arrest. He was
thereafter arrested in Florida and two Dane County detectives
traveled to Florida to interview him and return him to Wisconsin.
They were aware that, before leaving for Florida, the sheriff's
department in Dane County had received a letter from a Madison
attorney indicating that he was representing the defendant and
was aware that he had been arrested in Florida. The letter concluded
by stating that counsel did not want anyone to question the defendant
unless he was present.
Upon arrival in Florida, the detectives met with the defendant
in jail. When the officers identified themselves, the defendant
responded: "My lawyer told me that I shouldn't talk
to you guys." The defendant was then told that the officers
had received information from others implicating the defendant
in the murder and "were interested in obtaining his account."
The defendant was told that it was up to him whether he wanted
to give the officers a statement. After the Miranda warnings
were read to the defendant, the defendant apparently indicated
that he would talk to the officers until he felt that he would
be at a point where he would incriminate himself. During the
hour-long interrogation that followed, the detectives elicited
inculpatory information from the defendant. The circuit court
denied the defendant's motion to suppress the statements
made to the police officers. In a decision authored by Judge
Eich, the court of appeals reversed.
The Sixth Amendment provides a person who has been charged
with a crime the right to counsel at all critical stages of the
proceedings. Massiah v. United States, 377 U.S. 201 (1964).
The right attaches upon formal commencement of prosecution -
the filing of the complaint or issuance of a warrant. Once the
right has attached and been asserted, all further uncounseled
police-initiated interrogation concerning the charged crime is
barred, and any subsequent waivers on the part of the accused
are presumed to be invalid.
In this case there was no dispute that the defendant's
Sixth
Amendment right to counsel attached when the criminal complaint
was filed in Dane County prior to his interrogation by the detectives.
There was disagreement, however, as to whether the defendant
ever "asserted" that right.
The precise degree of clarity required to invoke the Massiah
right to counsel under the Sixth Amendment is unsettled in the
law. In the related context of invoking the Miranda right to
counsel, the U.S. Supreme Court has indicated that a defendant
must articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an attorney.
See Davis v. United States, 512 U.S. 452 (1994).
In this case the court thought that greater leeway should be
afforded to charged defendants and that, therefore, a charged
defendant may invoke his or her Sixth Amendment right to counsel
with statements or actions that are somewhat less than the standard
articulated in Davis. Applying this conclusion to the facts of
this case, the court was satisfied that the circumstances known
to and facing the detectives when they questioned the defendant
in Florida, which are summarized above, would warrant a reasonable
officer to understand that the defendant was invoking his right
to counsel. They continued the interrogation after the defendant
had invoked his right to counsel and therefore the statements
made by the defendant should have been suppressed.
Evidence
Experts - Qualifications - Directed Verdict
Tanner v. Shoupe,
No. 97-1566 (filed 20 May 1999) (ordered published 30 June 1999)
The plaintiff brought this products liability action involving
a battery that exploded and injured him. The trial judge directed
a verdict in the defendant's favor after the plaintiff rested
his case-in-chief. The plaintiff appealed the exclusion of his
expert witness and the trial judge's decision to direct
verdicts on other issues.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. In its primary discussion, the court held that the
expert was properly barred from testifying about the battery's
defective design and the cause of the explosion, but the witness
should have been permitted to testify about a damaged vent cap
and the adequacy of the warnings. The court of appeals agreed
that the expert was not qualified despite his having worked with
batteries for more than 30 years as a mechanic, consultant, and
technical school instructor. His actual experience investigating
"only two" battery explosions also rendered him unqualified
on the causation issue. There was, however, no requirement that
the expert have "expertise" on warnings in order to
testify about their adequacy. Considering the erroneously excluded
expert evidence, the record did not support the directed verdict
in favor of the defense on the damage to the vent cap and the
adequacy of the warnings.
Attorney-client Privilege - Work Product - Videotaped
Interviews
Estrada v. State,
No. 98-3055 (filed 25 May 1999) (ordered published 30 June 1999)
The issue in this case was whether "a videotaped interview
of the victim conducted by the alleged perpetrator's spouse
is privileged as either attorney communication or attorney work
product." The court of appeals, in an opinion written by
Judge Hoover, upheld a finding that this interview was not so
protected.
Ramiro and Tammy Estrada were husband and wife. Tammy ran
an in-home day care service. A child, S.J., complained that Ramiro
had sexually assaulted her. When Tammy contacted her lawyer,
he advised her that it would be helpful to have more information.
Tammy videotaped her interview of S.J. and gave the tape to her
attorney the next day. During a criminal investigation, the state
subpoenaed the videotape pursuant to section
968.135 of the Wisconsin Statutes. The Estradas moved to
quash the subpoena.
The videotape clearly failed to qualify as a confidential communication
under section
905.03, the lawyer-client privilege. The presence of a third
person, S.J., standing totally outside the privileged relationship,
stripped the interview of any confidentiality. Nor was the videotape
work product. Counsel never submitted "an affidavit indicating
that he directed Tammy to make the videotape or claiming that
he has adopted the videotape as his own work product." Nor
did Tammy show that counsel directed her to interview S.J. or
to ask particular questions.
Frivolous Actions
Attorney's Conduct - Bad Faith
Elmakias v. Wayda,
No. 98-3222 (filed 13 May 1999) (ordered published 30 June 1999)
The court of appeals, in an opinion written by Judge Dykman,
upheld an order against a lawyer compelling him to pay the opponent's
attorney fees because the lawyer maintained a frivolous action
under section
814.025(3)(a) of the Wisconsin Statutes. The order arose
out of a "highly contentious landlord-tenant dispute."
The lawyer continued to pursue the client's "claims
and defenses when he should have known they were meritless and
being maintained for improper purposes." (Emphasis original.)
Here the lawyer had irrefutable evidence "after the suit
was commenced that the 'unauthorized' entry was, in
fact, authorized, and that his client had a history of harassing
and intimidating" the tenant. The court closed with this
admonition: "An attorney who knows that his or her client
is asserting a claim solely to harass or injure the opposing
party, and still agrees to proceed with that claim, will be held
to have the same motive as his or her client."
Trade Secrets
Particularity of Allegations - Impact of Confidentiality
Agreements
ECT International
Inc. v. Zwerlein, No. 98-2041 (filed 19 May 1999) (ordered
published 30 June 1999)
In this case the plaintiff alleged that the defendant, its
former products manager, misappropriated trade secrets, including
knowledge of the workings of certain software for which the plaintiff
is the sole North American distributor.
The circuit court granted summary judgment to the defendant.
One of the issues on appeal involved the specificity required
regarding allegations of mis-appropriated trade secrets. In a
decision authored by Judge Anderson the court of appeals held
that a party asserting a protectable trade secret must describe
it with sufficient particularity to identify the specific trade
secret at risk. In this case the plaintiff's complaint repeated
statutory language from the trade secrets statute but these generalizations
were not sufficient. The court looked to a decision from the
California Court of Appeals for guidance on what is required
of a party who seeks to protect trade secrets. The California
court required "the complainant to describe the subject
matter of the trade secret with sufficient particularity to separate
it from matters of general knowledge in the trade or of special
knowledge of those persons who are skilled in the trade, and
to permit the defendant (and the court) to ascertain at least
the boundaries within which the secret lies." See
Diodes Inc. v. H.D. Franzen, 67 Cal. Rptr. 19 (Cal. Ct.
App. 1968).
Another issue in the case involved the impact of a confidentiality
agreement signed by the defendant. That agreement contained a
time limit and the defendant agreed not to divulge any trade
secret "during or for a period of one year after the termination
of [his] employment." The court of appeals concluded that
by limiting the period in which the employee agreed not to divulge
trade secrets, the plaintiff manifested its intent that after
one year there was no need to maintain the secrecy of any sensitive
and confidential information the defendant learned while employed.
Prof. Daniel D. Blinka and Prof. Thomas
J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
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