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WESCL, §§ 968.31(2)(b) and (c) – Intent to Commit Injurious Act

State v. John R. Maloney, 2004 WI App 141, affirmed2005 WI 74

Issue/Holding: The WESCL bars interception of a communication where the intent is to commit an “injurious act,” a showing that Maloney can’t make:

¶16. Generally, intent presents a question of fact that we are not allowed to resolve. See, e.g., State v. Lossman, 118 Wis. 2d 526, 543, 348 N.W.2d 159 (1984). However, the only basis Maloney offers for Hellenbrand’s motive is speculation.8 Additionally, we know of no law, and Maloney cites none, that suggests an individual, who volunteers to aid the authorities in a lawful albeit surreptitious investigation, commits an injury against the investigated party simply by participation. Indeed, such a rule would severely hamper investigatory options available to officials.

¶17. While Maloney makes much of Hellenbrand’s apparent use immunity, this would simply go to the credibility of any evidence she offered, not its admissibility. Because Maloney offers no real evidence to support his claim that Hellenbrand attempted to injure him,9 we reject that contention as a matter of law. Because there is no evidence that Hellenbrand intercepted communications with the intent to commit an injurious act, and because Hellenbrand consented to the taping, whether we rely on Wis. Stat. § 968.31(2)(b) or (c), the tapes were lawfully obtained. As a result, counsel was not ineffective by failing to challenge them.10


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