State v. John R. Maloney
Annotate this Case
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2005 WI 74
SUPREME COURT
CASE NO.:
OF
WISCONSIN
2003AP2180
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
John R. Maloney,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
2004 WI App 141
Reported at: 275 Wis. 2d 557, 685 N.W.2d 620
(Ct. App. 2004-Published)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
April 12, 2005
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
Circuit
Brown
Peter Naze
June 10, 2005
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner there were briefs by
Lew A. Wasserman and Kies & Wasserman, Milwaukee, and oral
argument by Lew A. Wasserman.
For the plaintiff-respondent the cause was argued by Daniel
J. O’Brien, assistant attorney general, with whom on the brief
was Peggy A. Lautenschlager, attorney general.
2005 WI 74
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2003AP2180
(L.C. No.
98 CF 693)
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
June 10, 2005
John R. Maloney,
Cornelia G. Clark
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals.
Jurisdiction
is retained until further order of the court.
¶1
ANN WALSH BRADLEY, J.
The petitioner, John Maloney,
seeks review of a published decision of the court of appeals
affirming
a
postconviction
circuit
relief.1
court
He
order
denying
contends
that
his
he
motion
was
for
afforded
ineffective assistance of trial counsel.
1
State v. Maloney, 2004 WI App 141, 275 Wis. 2d 557, 685
N.W.2d 620 (affirming an order of the circuit court for Brown
County, Peter J. Naze, Judge).
No.
¶2
2003AP2180
Maloney asserts three areas of deficient performance:
(1) failing to challenge the admissibility of videotape evidence
based
on
an
prosecutor;
videotape
alleged
(2)
violation
failing
evidence
under
to
of
SCR
challenge
Wisconsin's
20:4.2
the
by
the
special
admissibility
Electronic
of
Surveillance
Control Law; and (3) impermissibly inviting the State's lead
investigator to comment on Maloney's credibility.
Because he
has failed to demonstrate deficient performance, we ultimately
conclude that Maloney has not shown ineffective assistance of
trial counsel.
¶3
However, we do not affirm the decision of the court of
appeals at this time.
the
parties
to
file
Rather, we retain jurisdiction and ask
additional
briefs
on
the
following
two
issues:
(1)
Whether this court has authority to remand to the
circuit
court
for
a
motion
for
postconviction
relief based upon the interest of justice.
(2)
If so, whether this court should act upon that
authority and remand as described above.2
I
¶4
follows.
The
facts
for
the
purposes
of
this
review
are
as
John and Sandra Maloney were married in 1978 and had
2
Although referenced by the court at oral argument, the
question of whether Maloney is entitled to a new trial in the
interest of justice was not before us.
It was neither raised
nor briefed by the parties. Accordingly, we ask for additional
briefs and direct the parties' attention to the order in this
case issued on this date.
2
No.
three children together.
2003AP2180
John Maloney (hereinafter "Maloney")
was employed as a detective with the Green Bay Police Department
and also worked as an investigator for the Brown County Arson
Task Force.
In May of 1997, he moved out of the family home.
Maloney subsequently filed for divorce from his wife Sandra.
¶5
on
the
On February 11, 1998, Sandra's corpse was discovered
living
room
couch.
Her
death
was
caused
by
the
combination of a blunt force blow to the back of the head,
manual strangulation, and suffocation.
The couch, along with
Sandra's body, was then set on fire.3
¶6
Investigators
concluded
that
Sandra's
death
was
a
homicide and her estranged husband, Maloney, became a suspect.
In May of 1998, Maloney's then girlfriend, Tracy Hellenbrand,
encouraged him to hire an attorney.
Maloney retained Attorney
Gerald Boyle, who promptly notified Special Prosecutor Joseph
Paulus of his engagement.4
Paulus sent Boyle a letter indicating
that Maloney was a suspect in the case.
¶7
During
the
course
of
the
murder
investigation,
Hellenbrand approached the State and offered to wear a concealed
recording
device
in
an
attempt,
according
to
her,
to
prove
3
Initial reports from the Green Bay Fire Department and the
Brown County Arson Task Force actually labeled the fire an
accident.
Dr. Gregory Schmunk, the medical examiner in the
case, has since indicated that this evidence was withheld from
him, which may have affected his ruling.
4
The Brown County District Attorney recused himself from
the case because Maloney was a police officer in his
jurisdiction.
Joseph Paulus, the Winnebago County District
Attorney, was appointed Special Prosecutor.
3
No.
Maloney's innocence.
2003AP2180
Subsequent conversations that took place
in Las Vegas between Hellenbrand and Maloney were videotaped,
under supervision of Wisconsin authorities, with Hellenbrand's
consent and cooperation.
¶8
Rather than proving Maloney's innocence, the recorded
conversations contained inculpatory statements from him.
At one
point in the videotape, Maloney admitted to being at the scene
of
the
death.
He
claimed,
however,
that
his
wife's
death
resulted from an accidental fall, that it occurred early in the
morning,
and
that
the
candlestick fell over.
fire
might
have
been
started
when
a
Maloney also stated that he went to his
wife's house to talk about the divorce.
He wanted to get it
over with because he was "sick of the delays" and was doing this
for the children.
¶9
After the Las Vegas recordings, Maloney was arrested
and charged with first-degree intentional homicide, arson, and
mutilation of a corpse, all in connection with the murder of his
wife.
He filed a pretrial motion seeking suppression of the
videotaped conversations on grounds that the statements had been
involuntary,
conduct
in
counsel
had
that
the
obtaining
been
government
the
had
statements,
violated.
The
engaged
and
circuit
that
in
outrageous
his
court
right
denied
to
the
pretrial motion.
¶10
At trial, portions of the Las Vegas recordings were
played for the jury.
Apparently, Paulus was personally involved
4
No.
in
the
process.5
editing
Despite
videotape
this
2003AP2180
evidence,
Maloney maintained his innocence and asserted that Hellenbrand
was responsible for the murder.
Maloney
of
the
three
charges.
The jury ultimately convicted
He
appealed,
renewing
his
challenge to the admissibility of the videotaped conversations.
The court of appeals rejected all of Maloney's arguments and
affirmed his convictions.
State v. Maloney, No. 1999AP3069-CR,
unpublished slip op. (Wis. Ct. App. Sept. 6, 2000).6
¶11
Maloney then hired new counsel and filed a motion for
postconviction
relief
under
Wis.
Stat.
§
974.06
alleging ineffective assistance of trial counsel.7
(1997-98),
He maintained
that counsel should have challenged the admissibility of the
videotape
evidence
based
on
the
special
prosecutor's
alleged
5
Paulus sent the hours of recordings to a private, outside
company, supposedly to cut them down for time, not to alter
their content.
However, there was an initial $27,000 editing
bill, and a note from Paulus to the editor explaining that he
had replaced, modified, or added new excerpts to be included in
the tape. There was also an editor's note indicating that some
of Paulus's clips were so short that they seemed choppy.
6
Since Maloney's first appeal was decided, Paulus has been
convicted of 22 counts of bribery and tax evasion and is serving
a prison term of nearly five years in connection with taking
bribes to fix cases.
Because of concern that Paulus may have
mishandled the investigation, in March 2004, the Wisconsin
Department of Justice launched an independent investigation into
the death of Sandra Maloney.
On February 24, 2005, the
Department released a report, authored by Madison Attorney
Stephen Meyer, confirming that Sandra Maloney's death was a
homicide and not accidental. The report is available online at
http://www.doj.state.wi.us/news/maloney.pdf.
7
All references to the Wisconsin Statutes are to the 199798 version unless otherwise noted.
5
No.
violation
of
SCR
20:4.2
and
based
Surveillance Control Law (WESCL).
on
2003AP2180
Wisconsin's
Electronic
Additionally, he argued that
counsel impermissibly invited the State's lead investigator, Kim
Skorlinski, to comment on Maloney's credibility.
¶12
The
determined
Maloney
circuit
that
did
the
not
court
denied
pre-charging
violate
SCR
the
motion.
undercover
20:4.2,
and
suppression was not an available remedy.
The
court
investigation
even
if
it
of
had,
It further determined
that there was no violation of WESCL because Hellenbrand, being
a party to the Las Vegas encounter with Maloney, consented to
the surveillance.
Finally, the circuit court concluded that
trial counsel made sound strategic decisions in how he examined
Agent Skorlinski to demonstrate to the jury that Skorlinski was
closed-minded and biased against Maloney.
Accordingly, it held
that Maloney failed to prove ineffective assistance of counsel
in any respect.
¶13
The court of appeals affirmed the order of the circuit
court denying the motion for postconviction relief.
of
appeals
did
not
decide
whether
special
The court
prosecutor
Paulus
violated SCR 20:4.2 because it concluded that suppression of
evidence was not an available remedy for an ethics violation.
State v. Maloney, 2004 WI App 141, ¶¶11-12, 275 Wis. 2d 557, 685
N.W.2d 620.
violation
Additionally, the court held that there was no
of
WESCL
because
Hellenbrand
consented
to
the
surveillance and Maloney offered no proof that she did so with
the
intent
to
commit
an
"injurious
act."
Id.,
¶¶15-17.
Finally, the court of appeals agreed with the circuit court that
6
No.
2003AP2180
trial counsel had employed a reasonable, albeit unsuccessful,
strategy
in
examination.
his
approach
to
Agent
Skorlinksi's
cross-
Maloney filed a petition for review.8
Id., ¶22-23.
II
¶14
The
question
we
address
in
this
Maloney's trial counsel was ineffective.
assistance
of
counsel
invokes
the
case
defendant
representation
prejudicial.
must
was
demonstrate
analysis
deficient;
Id. at 687.
both
and
(2)
whether
A claim of ineffective
Strickland v. Washington, 466 U.S. 668 (1984).
a
is
set
forth
in
To find success,
that
(1)
counsel's
this
deficiency
was
We need not address both components
of the inquiry if the defendant makes an insufficient showing on
one.
Id. at 697.
¶15
Our
review
of
an
ineffective
assistance
claim is a mixed question of fact and law.
of
counsel
State v. McDowell,
2004 WI 70, ¶31, 272 Wis. 2d 488, 681 N.W.2d 500 (citing State
v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999)).
We
will not disturb the circuit court's findings of fact unless
8
Shortly before oral argument, the Wisconsin Department of
Justice sent a letter advising the court that on Saturday, March
26, 2005, the CBS Television Network devoted a segment of its
news show "48 Hours" to the investigation and prosecution of
Maloney.
Attached to the letter was a transcript of the show.
Maloney did not object to the court receiving the transcript.
In its letter, the Department of Justice noted that various
statements in the "48 Hours" segment were attributed to
Winnebago County Assistant District Attorney Michael Balskus.
It then disassociated itself from Balskus, explaining that he
lacked any authority to speak on behalf of the State and did not
represent it in the Brown County criminal prosecution, the
direct appeal, or the collateral proceedings.
7
No.
they
are
clearly
erroneous.
Id.
the
However,
2003AP2180
ultimate
determination of whether the attorney's performance falls below
the
constitutional
minimum
is
independent appellate review.
a
question
of
law
subject
to
Id.
III
¶16
In this case, Maloney contends that he was afforded
ineffective assistance of trial counsel in three respects:
(1)
failing to challenge the admissibility of the videotape evidence
based
on
an
alleged
violation
of
SCR
20:4.2
by
special
prosecutor Paulus; (2) failing to challenge the admissibility of
videotape evidence under WESCL; and (3) impermissibly inviting
the
State's
credibility.
lead
investigator
to
comment
on
Maloney's
We examine each claim in turn.
A.
¶17
Maloney's first argument is that his trial counsel was
ineffective for failing to challenge the admissibility of the
videotape evidence based on an alleged violation of SCR 20:4.2
by special prosecutor Paulus.
Supreme Court Rule 20:4.2 is an
ethical rule governing the behavior of members of the Wisconsin
Bar.
It provides:
In
representing
a
client,
a
lawyer
shall
not
communicate about the subject of the representation
with a party the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized by
law to do so.
¶18
According
to
Maloney,
special
prosecutor
Paulus's
conduct in this case constituted an egregious violation of SCR
20:4.2.
He maintains that the Las Vegas videotapes should have
8
No.
been
suppressed
counsel,
agreed
Paulus
to
the
because
was
Paulus
present
electronic
at
knew
the
Maloney
meeting
surveillance,
and
2003AP2180
had
retained
when
Hellenbrand
Paulus
was
kept
generally apprised of the undercover activities throughout the
summer by Agent Skorlinski.
this
argument,
Maloney
Trial counsel's failure to make
asserts,
constitutes
ineffective
assistance of counsel.
¶19 The applicability of SCR 20:4.2 to the investigative
stage of a criminal case is a matter of first impression for
this court.9
Many courts examining the issue have held that pre-
charging noncustodial contact with a represented person during a
criminal investigation is permitted under the applicable rules
of ethics.
See, e.g., Grievance Comm. for the Southern Dist. of
New York v. Simels, 48 F.3d 640, 647-49 (2d Cir. 1995); In re
Criminal Investigation of John Doe, Inc., 194 F.R.D. 375, 377
(D.
Mass. 2000) (and cases
cited
therein);
United
Ward, 895 F. Supp. 1000, 1004-05 (N.D. Ill. 1995).
Restatement (Third) of the Law:
States
v.
See also 2
The Law Governing Lawyers, § 99
cmt. h at 75-76, and Reporter's Note to cmt. h at 83-86 (2000).
¶20
to
the
Consistent with these interpretations, the commentary
ABA
investigative
Model
conduct
Rules
of
recognizes
the
type
9
that
that
pre-charging
occurred
here
is
Although Maloney cites two ethics opinions in support of
his argument, Wisconsin Ethics Opinions, E-91-6 (1992) and E-963 (1997), he ultimately acknowledges that "[t]he issue presented
is one that has not been directly before this court."
9
No.
2003AP2180
"authorized by law" and, therefore, is not prohibited by the
rules of ethics.
Communications authorized by law may also include
investigative
activities
of
lawyers
representing
governmental
entities,
directly
or
through
investigative agents, prior to the commencement of
criminal or civil proceedings.
When communicating
with the accused in a criminal matter, a government
lawyer must comply with this Rule in addition to
honoring the constitutional rights of the accused.
American Bar Association, Model Rules of Professional Conduct,
Rule 4.2 cmt. at 91 (2003).
There is much authority for the proposition that
communication with represented criminal suspects as
part of noncustodial interrogations, before formal
proceedings are initiated, are not subject to the
anticontact rule.
American Bar Association, Annotated Model Rules of Professional
Conduct, Rule 4.2 at 427-28.
¶21
v.
Against these authorities, Maloney cites United States
Hammad,
similar
858
SCR
to
F.2d
20:4.2
subpoena
(2d
Cir.
applicable
setting.10
investigative
counterfeit
834
In
for
an
1988),
in
a
Hammad,
suspect and recorded their conversation.
presented
to
contact"
rule]
prosecutors
the
court
was
"to
what
restrict
the
use
of
prior
to
indictment,
10
prosecutor
who
then
a
rule
criminal
issued
met
with
a
a
The principal question
extent
does
informants
but
held
pre-charging
a
informant,
which
after
by
a
[the
"no-
government
suspect
has
United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) has
been endorsed by other jurisdictions. See, e.g., United States
v. Talao, 222 F.3d 1133, 1139 (9th Cir. 2000); State v. Miller,
600 N.W.2d 457, 467 (Minn. 1999).
10
No.
retained
counsel in connection
criminal investigation."
¶22
In
prosecutor
its
is
with
the
subject
2003AP2180
matter
of
a
Id. at 839.
opinion,
the
"authorized
Hammad
by
law"
court
to
noted
employ
that
a
legitimate
investigative techniques, including the use of informants, when
conducting or supervising criminal investigations.
Id.
Still,
it observed that in some instances prosecutors might overstep
their authority and violate the ethical precepts of the "nocontact" rule.
case,
the
Id. at 839-40.
court
determined
Under the peculiar facts of its
that
the
use
of
the
counterfeit
subpoena "contributed to the informant's becoming that alter ego
of the prosecutor" and therefore violated the "no-contact" rule.
Id.
at
840.
The
court
further
recognized
the
exclusionary
rule's applicability to "breaches of ethical precepts enforced
pursuant to the federal courts' supervisory authority."
841.
Id. at
However, it declined to suppress the recordings, reasoning
that "the government
should
not
have
its
case
prejudiced
by
suppression of evidence when the law was previously unsettled in
this area."
¶23
Id. at 842.
The split of authorities described above is important
in considering whether Maloney's trial counsel was ineffective
in
the
videotape
evidence based on an alleged violation of SCR 20:4.2.
Ignorance
of
failing
to
challenge
well-defined
legal
the
admissibility
principles,
of
of
course,
is
nearly
inexcusable.
Smith v. Singletary, 170 F.3d 1051, 1054 (11th
Cir. 1999).
However, because the law is not an exact science
and may shift over time, "'the rule that an attorney is not
11
No.
2003AP2180
liable for an error of judgment on an unsettled proposition of
law is universally recognized . . . .'"
Id. (quoting 2 Ronald
E. Mallen & Jeffrey M. Smith, Legal Malpractice § 17.4, at 497
(4th ed. 1996) (citing cases));11 United States v. De La Pava,
268
F.3d
157,
166
(2d
Cir.
2001);
Johnson
v.
Carroll,
327
F. Supp. 2d 386, 398 (D. Del. 2004).
¶24
In the end, we need not determine which line of cases
Wisconsin will ultimately follow regarding the applicability of
SCR 20:4.2 to the pre-charging criminal investigative setting.12
Here, we are called upon to decide the narrower question of
whether Maloney's trial counsel was ineffective for failing to
make
this
argument.
As
noted
above,
in
order
to
establish
ineffective assistance of counsel, a defendant must prove that
counsel's
performance
was
Strickland, 466 U.S. at 687.
both
deficient
and
prejudicial.
To prove deficient performance,
defendants must show that their counsel "made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment."
Id.
11
Because a lawyer's performance is evaluated under
prevailing professional norms, see Strickland v. Washington, 466
U.S. 668, 688 (1984), case law and treatises on legal
malpractice can be instructive in our analysis.
As the 11th
Circuit Court of Appeals explained in Smith v. Singletary, 170
F.3d 1051, 1054 n. 5 (11th Cir. 1999), "ordinarily, at least,
lawyers' acts or omissions that do not rise to the level of
professional malpractice, a fortiori, cannot amount to a
constitutional violation."
12
Likewise, we need not decide whether suppression is an
available remedy for an ethics violation.
12
No.
¶25
Judicial
scrutiny
highly deferential.
of
an
Id. at 689.
attorney's
2003AP2180
performance
is
After all, "[i]t is all too
tempting for a defendant to second-guess counsel's assistance
after conviction or adverse sentence, and it is all too easy for
a
court,
examining
counsel's
defense
after
it
has
proved
unsuccessful, to conclude that a particular act or omission of
counsel
was
unreasonable."
Id.
(citation
omitted).
As
a
result, "[a] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight,
to
reconstruct
the
circumstances
of
counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time."
¶26
In
State
v.
Id.
Thayer,
2001
WI
App
51,
¶14,
241
Wis. 2d 417, 626 N.W.2d 811, the court of appeals recognized
that "counsel is not required to argue a point of law that is
unclear."
There, a Wis. Stat. Ch. 980 committed patient named
Thayer alleged that his counsel was ineffective for failing to
present evidence at a Wis. Stat. § 980.09(2)(a) probable cause
hearing.
Id., ¶9.
Counsel subsequently testified that he did
not believe his client had the right to present evidence at such
a
hearing
based
upon
his
reading
of
State
v.
Wis. 2d 432, 570 N.W.2d 626 (Ct. App. 1997).
court of appeals disagreed.
¶27
Paulick,
Id., ¶10.
213
The
Id.
Examining Paulick, the court of appeals explained that
the decision's language implicitly allows for the submission of
a
second,
patient.
independent
Id., ¶15.
medical
examination
by
the
committed
However, the court also noted that there
13
No.
2003AP2180
was no evidence in the record to suggest that Thayer requested
or retained an independent medical examiner at the time of his
reexamination, as required by Wis. Stat. § 980.07(1).
Id.
court
counsel's
of
appeals
therefore
concluded
that
The
understanding of Paulick, that he was prohibited from presenting
any evidence at the probable cause hearing, was a reasonable one
under the circumstances.
¶28
Id.
In State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d
621 (Ct. App. 1994), the court of appeals observed that "counsel
is not required to object and argue a point of law that is
unsettled."
McMahon was convicted of several sexual offenses
involving his first cousin, including one count of incestuous
intercourse, which occurred between October 10 and November 20,
1990.
Id.
at
79.
On
appeal,
he
complained
that
lumping
together in a single count the "sheer number of incidents" which
allegedly
improper
took place
joining
of
during
two
or
that
more
time
period
criminal
amounted
offenses.
to
an
Id.13
McMahon cited State v. Lomagro, 113 Wis. 2d 582, 586, 335 N.W.2d
583 (1983), for the proposition that duplicitous charging may
deprive a defendant of jury unanimity.
Id.
He then argued that
his trial counsel was ineffective for not having made such a
motion.
¶29
Id. at 80.
After
discussing
Lomagro
at
length,
the
court
of
appeals determined that the case could be reasonably analyzed in
13
There were 12 alleged incidents spread out over the
course of the one-and-a-half-month period.
State v. McMahon,
186 Wis. 2d 68, 79, 519 N.W.2d 621 (Ct. App. 1994).
14
No.
two different ways and was therefore unsettled law.
2003AP2180
Id. at 84.
It wrote, "[a]lthough it might have been ideal for counsel to so
object
and
assert
an
interpretation
of
Lomagro
that
would
benefit his client, the fact is that he was not deficient in
failing to do so."
the
area
of
law
Id.
was
Accordingly, the court concluded that
"murky"
enough
that
deficient for failing to raise the issue.
counsel
Id.
was
not
It explained,
"[w]e think ineffective assistance of counsel cases should be
limited to situations where the law or duty is clear such that
reasonable counsel should know enough to raise the issue."
Id.
at 85.
¶30
Given the unclear and unsettled nature of SCR 20:4.2's
applicability
in
Wisconsin
to
the
pre-charging
criminal
investigative setting, we conclude that trial counsel's failure
to challenge the admissibility of the videotape evidence on this
ground did not constitute deficient performance.
Although it
might have been preferred for Maloney's counsel to advance the
Hammad position in his motion to suppress, basing an ineffective
assistance of counsel claim on his failure to do so would be to
engage in the kind of hindsight examination expressly disavowed
by
the
Supreme
Court
in
Strickland,
466
U.S.
at
689.
Accordingly, we reject Maloney's first claim.
B.
¶31
Maloney
contends
next
that
his
trial
counsel
was
ineffective for failing to challenge the admissibility of the
videotape evidence under WESCL.
His claim involves two sections
15
No.
of
WESCL,
Wis.
Stat.
§§
968.31(2)(b)
and
(c).
2003AP2180
Under
these
provisions, it is not unlawful:
(b) For a person acting under color of law to
intercept a wire, electronic or oral communication,
where the person is a party to the communication or
one of the parties to the communication has given
prior consent to the interception.
(c) For a person not acting under the color of law to
intercept a wire, electronic or oral communication
where the person is a party to the communication or
where one of the parties to the communication has
given prior consent to the interception unless the
communication is intercepted for the purpose of
committing any criminal or tortious act in violation
of the constitution or laws of the United States or of
any state or for the purpose of committing any other
injurious act.
¶32
In
pretrial
motions,
Maloney's
counsel
argued
that
Hellenbrand had been acting under color of law, which was a
necessary element to the alleged Miranda14 violation that counsel
also
raised.
Counsel
Machner15 hearing that
later
it
explained
would
have
at
been
the
postconviction
futile
to
raise
a
challenge under Wis. Stat. § 968.31(2)(b) because Hellenbrand
was
a
party
to
the
communication
and
had
consented
to
the
videotaping.
¶33
The circuit court rejected counsel's Miranda argument,
concluding that Hellenbrand had not been acting under color of
14
See Miranda v. Arizona, 384 U.S. 436 (1966).
15
Under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905
(Ct. App. 1979), a hearing may be held when a criminal
defendant's trial counsel is challenged for allegedly providing
ineffective assistance. At the hearing, trial counsel testifies
as to his or her reasoning on the challenged action or inaction.
16
No.
law.
2003AP2180
Maloney now asserts that trial counsel should have argued
in the alternative that if Hellenbrand was not acting under the
color of law, then the tapes were obtained contrary to Wis.
Stat.
§
968.31(2)(c).
Under
that
provision,
consent
is
insufficient if the communication is intercepted to commit an
"injurious act."
According to Maloney, Hellenbrand was taping
their conversations to injure him.
¶34
Again, we need not determine whether Hellenbrand was
operating
under
ineffective
counsel
color
of
law
assistance
of
counsel.
In
no
for
would
have
had
to
resolve
basis
Maloney's
either
claim
event,
objecting
trial
to
admissibility of the videotape evidence under WESCL.
of
the
If, as
Maloney initially argued, Hellenbrand was acting under color of
law, the videotapes were admissible at trial under Wis. Stat. §
968.31(2)(b).
This is because Hellenbrand was a party to the
communication who had clearly given prior consent to the police
interception of her encounter
with
Maloney
in
the
Las
Vegas
hotel room.
¶35
If,
as
Maloney
now
suggests,
Hellenbrand
was
not
acting under color of law, the videotapes were still admissible
at trial under Wis. Stat. § 968.31(2)(c) because she consented
to
their
interception
by
police
and
did
not
do
so
for
the
purpose of committing an illegal act.
Although Maloney contends
that Hellenbrand's attempt
incriminating
was
an
"injurious
act"
to
record
warranting
persuaded.
17
suppression,
we
statements
are
not
No.
¶36
2003AP2180
Like the court of appeals, we know of no law "that
suggests an individual, who volunteers to aid the authorities in
a lawful albeit surreptitious investigation, commits an injury
against
the
investigated
party
Maloney, 275 Wis. 2d 557, ¶16.
simply
surely
realize
that
participation."
Indeed, such a rule would make
"sting" operations a thing of the past.
must
by
evidence
Undercover informants
they
receive
may
be
potentially harmful to the target of the investigation, but this
is not the type of "injurious" act contemplated by the statute.
¶37
Accordingly, we are satisfied that the videotapes were
lawfully obtained in conformity with WESCL and were admissible
at trial.
Counsel does not render deficient performance for
failing
bring
denied.
to
suppression
motion
that
would
have
been
See State v. Harvey, 139 Wis. 2d 353, 380, 407 N.W.2d
235 (1987).
carry
a
the
We therefore conclude that Maloney has failed to
burden
of
demonstrating
ineffective
assistance
of
counsel for his second claim.16
C.
¶38
Finally,
ineffective
for
investigator
to
Maloney asserts that his trial counsel was
impermissibly
comment
on
inviting
Maloney's
16
the
State's
credibility.
lead
Such
a
Even if there were some sort of a violation of WESCL, we
note that Hellenbrand could still have taken the witness stand
at trial and testified about her encounter with Maloney in Las
Vegas.
Only the videotapes of that encounter would be
inadmissible.
State v. Smith, 72 Wis. 2d 711, 714, 242 N.W.2d
184 (1976); State v. Maloney, 161 Wis. 2d 127, 129-32, 467
N.W.2d 215 (Ct. App. 1991).
18
No.
2003AP2180
strategy, Maloney contends, was violative of the rule that no
witness may give an opinion regarding whether another competent
witness
is
telling
the
truth.
State
v.
Haseltine,
120
Wis. 2d 92, 96 352 N.W.2d 673 (Ct. App. 1984).17
¶39
at
Agent Skorlinski was the lead investigator in the case
hand.
At
investigation
Maloney.
trial,
and
the
he
testified
steady
at
compilation
length
of
about
evidence
the
against
There was nothing in Agent Skorlinksi's background or
character that would call into question his credibility.
¶40
Having
no
independent
basis
to
attack
Agent
Skorlinski's credibility, Maloney's trial counsel turned to the
investigation itself.
approximately
brought
Maloney.
out
140
the
In a lengthy cross-examination spanning
pages
fact
of
that
transcript,
Agent
Skorlinski
did
did
repeatedly
not
believe
At one point, counsel asked, "[Y]ou had to say [at
some point] maybe he didn't do it."
"I
counsel
not
believe
[Maloney's]
Agent Skorlinksi replied,
denials."
Agent
Skorlinski
further testified that he believed Maloney lied to Hellenbrand
about a number of things on the Las Vegas videotapes.
17
In State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673
(Ct. App. 1984), the defendant was charged with sexual contact
with his daughter.
At trial, the daughter's psychiatrist
testified that there "was no doubt whatsoever" that the daughter
was an incest victim.
Id. at 95-96.
The court of appeals
determined that this statement invaded the province of the jury,
as it was tantamount to saying that the daughter was telling the
truth. Id. at 96. Accordingly, the court of appeals held that
no witness, expert or otherwise, should be permitted to give an
opinion that another competent witness is telling the truth.
Id.
19
No.
¶41
explained
At
the
that
Machner
his
hearing,
strategy
2003AP2180
Maloney's
been
had
trial
criticize
to
investigative techniques used in this case.
counsel
the
Specifically, he
sought to demonstrate that Agent Skorlinski had focused on his
client
so quickly that
suspects.
he
failed
to
consider
other
possible
Counsel felt that his line of questioning, in which
Agent Skorlinski indicated his belief that Maloney was a liar,
would reveal this fixation.
¶42
The circuit court found trial counsel's strategy to be
a commonly used tactic, particularly for Maloney's theory of
defense.
It observed:
Attorney
Boyle
was
attempting
to
portray
the
investigative team as overly zealous and closed
minded . . .
[T]hey focused on his client as the
prime suspect and did not adequately consider other
suspects. It is a common and widely accepted defense
tactic to criticize the investigation, while not
risking alienation of the jury by making the attack
personal.
. . . [Maloney's] theory of defense was that someone
else committed the murder, and that law enforcement
unreasonably focused on the defendant as the sole
suspect. Part and parcel of that defense would be an
attempt to establish that the lead investigator
[Skorlinski] was closed-minded by showing that he
unreasonably
refused
to
believe
the
defendant's
version of events in spite of evidence supporting that
version.
¶43
When
reviewing
trial
counsel's
cross-examination
of
Agent Skorlinski, we are mindful that, "[t]here are countless
ways to provide effective assistance in any given case.
the
best
criminal
defense
attorneys
particular client in the same way."
20
would
not
Even
defend
a
Strickland, 466 U.S. at
No.
689.
2003AP2180
Accordingly, "a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action
'might
be
considered
sound
trial
strategy.'"
Id.
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
¶44
Again, we conclude that Maloney has failed to show
that his trial counsel's performance was deficient.
purpose
and
effect
of
the
cross-examination
Here, the
was
impermissibly comment on the credibility of Maloney.
not
to
Rather, it
was to impeach Agent Skorlinksi by portraying him as a good but
closed-minded
suspects.
investigator
who
failed
to
consider
other
As such, the questioning was not violative of the
Haseltine rule.
State v. Jackson, 187 Wis. 2d 431, 437-38, 523
N.W.2d 126 (Ct. App. 1994).
See also State v. Johnson, 2004 WI
94, ¶¶2, 19-24, 26, 273 Wis. 2d 626, 681 N.W.2d 901.
The fact
that the strategy ultimately proved unsuccessful does not make
it
any
less
reasonable
for
purposes
of
evaluating
Maloney's
claim.
IV
¶45
counsel.
failing
based
on
In sum, Maloney claims ineffective assistance of trial
He asserts three areas of deficient performance:
to
challenge
an
prosecutor;
alleged
(2)
the
admissibility
violation
failing
to
of
SCR
challenge
of
videotape
20:4.2
the
by
(1)
evidence
the
special
admissibility
of
videotape evidence under WESCL; and (3) impermissibly inviting
the
State's
lead
investigator
21
to
comment
on
Maloney's
No.
credibility.
2003AP2180
Because he has failed to demonstrate deficient
performance, we ultimately conclude that Maloney has not shown
ineffective assistance of trial counsel.
¶46
However, we do not affirm the decision of the court of
appeals at this time.
the
parties
to
file
Rather, we retain jurisdiction and ask
additional
briefs
on
the
following
two
issues:
(1)
Whether
this
court
has
authority
to
remand
to
the
circuit court for a motion for postconviction relief
based upon the interest of justice.
(2)
If so, whether this court should act upon that
authority and remand as described above.
By the Court.—Jurisdiction is retained until further order
of the court.
22
No.
1
2003AP2180
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