State v. Maloney

• Decision Date: 10 June 2005
• Docket Number: No. 2003AP2180.,2003AP2180.
• Citation: 698 N.W.2d 583,281 Wis.2d 595,2005 WI 74
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John R. MALONEY, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

281 Wis.2d 595

2005 WI 74

698 N.W.2d 583

STATE of Wisconsin, Plaintiff-Respondent, v. John R. MALONEY, Defendant-Appellant-Petitioner.

No. 2003AP2180.

Supreme Court of Wisconsin.

Oral argument April 12, 2005.

Decided June 10, 2005.

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.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, John Maloney, seeks review of a published decision of the court of appeals affirming a circuit court order denying his motion for postconviction relief.¹ He contends that he was afforded ineffective assistance of trial counsel.

¶ 2. Maloney asserts three areas of deficient performance: (1) failing to challenge the admissibility of videotape evidence based on an alleged violation of SCR 20:4.2 by the special prosecutor; (2) failing to challenge the admissibility of videotape evidence under Wisconsin's Electronic 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. Rather, we retain jurisdiction and ask the parties to file 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. The facts for the purposes of this review are as follows. John and Sandra Maloney were married in 1978 and had three children together. 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 February 11, 1998, Sandra's corpse was discovered on the 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 Maloney's innocence. 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 fire might have been started when a candlestick fell over. 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, that the government had engaged in outrageous conduct in obtaining the statements, and that his right to counsel had been violated. The circuit court denied the pretrial motion.

¶ 10. At trial, portions of the Las Vegas recordings were played for the jury. Apparently, Paulus was personally involved in the editing process.⁵ Despite this videotape evidence, Maloney maintained his innocence and asserted that Hellenbrand was responsible for the murder. The jury ultimately convicted Maloney of the three charges. 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 (1997-98), alleging ineffective assistance of trial counsel.⁷ He maintained that counsel should have challenged the admissibility of the videotape evidence based on the special prosecutor's alleged violation of SCR 20:4.2 and based on Wisconsin's Electronic Surveillance Control Law (WESCL). Additionally, he argued that counsel impermissibly invited the State's lead investigator, Kim Skorlinski, to comment on Maloney's credibility. ¶ 12. The circuit court denied the motion. The court determined that the pre-charging undercover investigation of Maloney did not violate SCR 20:4.2, and even if it had, suppression was not an available remedy. 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. The court of appeals did not decide whether special 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. Additionally, the court held that there was no violation 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 trial counsel had employed a reasonable, albeit unsuccessful, strategy in his approach to Agent Skorlinksi's cross-examination. Id., ¶ 22-23. Maloney filed a petition for review.⁸

II

¶ 14. The question we address in this case is whether Maloney's trial counsel was ineffective. A claim of ineffective assistance of counsel invokes the analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). To find success, a defendant must demonstrate both that (1) counsel's representation was deficient; and (2) this deficiency was prejudicial. Id. at 687. 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 of counsel claim is a mixed question of fact and law. 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 they are clearly erroneous. Id. However, the ultimate determination of whether the attorney's performance falls below the constitutional minimum is a question of law subject to independent appellate review. 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 lead investigator to comment on Maloney's credibility. 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 been suppressed because Paulus knew Maloney had retained counsel, Paulus was present at the meeting when Hellenbrand agreed to the electronic surveillance, and Paulus was kept generally apprised of the undercover activities throughout the summer by Agent Skorlinski. Trial counsel's failure to make this argument, Maloney 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...