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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 |

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.

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.

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."

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.