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Preservation of Issue: Motion in Limine; Ineffective Assistance: Client’s Failure to Reveal Information to Counsel; Harmless Error Review: Cf. IAC-Prejudice; Evidence: § 905.05 Marital Privilege & 3rd-Party

State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Preservation of Issue – Motion in Limine

Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.

¶20      First, Eison’s attorney did not fail to adequately object to the testimony by the Milwaukee police officers.  See State v. Bergeron, 162 Wis. 2d 521, 528, 470 N.W.2d 322 (Ct. App. 1991) (“A defendant who has raised a motion in limine generally preserves the right to appeal on the issue raised by the motion without also objecting at trial.”).  Because both the issue raised on appeal and the issue resolved by the motion in limine concern whether the Milwaukee police officers should have been allowed to testify, the issue is adequately preserved for review.  Id. at 529 (“Whether the motion in limine relieves the party from having to object depends on whether the motion alerted the trial court to the same issue of fact or law that arises at trial.”).

The issue arises in the context of an ineffective assistance claim for failing to object at trial to this evidence. The court holds, in substance, that the challenge was in fact preserved (by the in limine ruling), therefore deficient performance is simply an irrelevant inquiry. That conclusion should have ended the matter but as indicated immediately below, the court goes on to say that counsel – who came into the case late in the process – had no obligation to know about the pretrial proceeding and therefore couldn’t be ineffective anyway.

Ineffective Assistance – Client’s Failure to Reveal Information

Where the defendant litigated a pretrial ruling pro se, and counsel assumed representation well after that point, the defendant’s failure to inform counsel of that pretrial ruling absolved counsel of any obligation to familiarize himself with it.

¶21      Further, a lawyer is not ineffective for not pursuing something the defendant knew, but did not reveal.  See State v. Jones, 2010 WI App 133, ¶33, 329 Wis. 2d 498, 791 N.W.2d 390; see also State v. DeLain, 2004 WI App 79, ¶18, 272 Wis. 2d 356, 679 N.W.2d 562, aff’d, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484.  Eison himself filed the motion in limine that precluded this testimony.  He argued the motion himself and obtained a favorable ruling, nearly a year before he was represented by Attorney Batt.  The order in the court file granting the motion refers to Eison’s various motions by number only and simply indicates whether the motions were granted or denied or whether rulings were reserved.  The transcript of the hearing on that motion, where the court’s substantive decisions are set out, contains 132 pages.  The record before us bristles with motions, the bulk of which are handwritten by Eison.  Attorney Batt, faced with such a record, could not reasonably be expected to excavate significant facts that Eison knew, but did not share.  The existence of an in limine order prohibiting the officers’ testimony is a matter that Eison knew about because he was acting as his own attorney at the time of the in limine motion and order.  Eison should have told Attorney Batt about the order promptly when their relationship began. 

But the principle – counsel can’t be held accountable for not knowing something his client kept to himself – derives from cases involving extra-record details: Jones didn’t tell his attorney whether he had a tattoo on a certain day; DeLain never told his attorney about certain witnesses. Should this principle be extended, as here, to exonerate counsel’s failure to so much as glance at the docket entries of a case he was taking over? Is that too much to ask? The CCAP entry for 11/1/07 (pdf, p. 6) reflects, in part: “Court ordered the state to file a written account of the court’s rulings as to the Motion in Limine. 1. Motions in LIMINE: defense withdrew items 5-10, Court denied items 1-3 and 11; Court granted items 4,12,13,14 and 16, and Court reserved ruling on item 15.” Granted, a bit of legwork would have been required to ferret out just what had been granted and what denied, but is it correct to say that counsel had no such obligation without his client’s prompting?

Harmless Error Review

The test for harmless error is much like the test for ineffective-assistance prejudice, except that the burden of proof shifts to the State, namely, whether it appears beyond a reasonable doubt that the error didn’t contribute to the verdict, ¶11. In this instance, the misconduct evidence noted above (arrest on an unrelated offense) was harmless, in light of strong eyewitness testimony and circumstantial proof of guilt, ¶22.

Marital Privilege, § 905.05

Marital privilege doesn’t cover communications accessible to third-parties. Thus, testimony from Eison’s then-wife, that she didn’t see him until he came home at 2 a.m. the day of the charged offense, didn’t come within the privilege for marital communications; his arrival at his doorstep was a public act that could have been seen by anyone on the street, ¶28. Similarly, telephone communications made by Eison to her while in jail weren’t privileged: “

¶33      This testimony was not protected by the marital privilege because it was not a “private” communication.  Reynolds testified that all of her conversations with Eison about his gambling debts, the reason he did not come home the night of the robbery, and about the gun, were telephone conversations that took place while Eison was in the Milwaukee County Jail. All outgoing telephone calls made by inmates of the jail are recorded, a policy that is disclosed to all inmates.[7]  Because these telephone conversations were monitored, Eison knowingly exposed their contents to a third party.  That constitutes a waiver of any marital privilege that might have applied to Eison’s conversations with Reynolds.  See Wis. Stat. § 905.11.[8]

(The court stresses “that Eison was on notice that his conversations with Reynolds would be recorded,” n. 7.)

The wife’s testimony that Eison had lied to her about his employer not paying him was privileged, and thus erroneously admitted, ¶31. (The court rejects an exception posited by the State for “deceptive” communications, id., and n. 6.) The error was harmless, ¶34.

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