Deficiencies were harmless error

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A March 1 opinion from the Wisconsin Court of Appeals provides guidance on objecting to testimony pursuant to the marital privilege, sec. 905.05.

Or perhaps, it would be more accurate to say it provides guidance on how not to object to the testimony.

First and foremost, know what the rule says. When defense counsel objected to his client’s wife testifying at trial, the prosecution countered, without further response, only the testifying spouse can invoke the privilege, rather than the party.

However, the rule permits either to claim the privilege.

Second, the privilege does not bar a spouse from testifying altogether, but only testifying about confidential communications.

Winston B. Eison was charged with armed robbery and false imprisonment, based on a car-jacking in the City of Glendale.

While representing himself pro se, Eison successfully obtained an order prohibiting the arresting officers from testifying about the circumstances of his arrest. The arrest involved the theft of a different vehicle, although Eison was not charged with that theft.

At trial, now represented by counsel, Eison’s attorney objected to admission of the evidence as unduly prejudicial, but did not object to it as being inadmissible “other acts” evidence. The trial court admitted the evidence.

When Eison’s wife was called to testify, counsel objected on marital privilege grounds. But he did not pursue the objection after the State erroneously responded that only his wife could invoke the privilege.

Eison was convicted, and requested a Machner hearing based on ineffective assistance of counsel. The circuit court denied the request and Eison appealed.

In an opinion by Judge Joan Kessler, the Court of Appeals affirmed.

The court first found that Eison’s attorney was not deficient for failing to enforce the ruling that barred the officers from testifying about the circumstance of his arrest.

Noting that the transcript from that hearing, which occurred more than a year before the attorney was appointed, was 132 pages, the court held that counsel was not ineffective, because Eison should have told him about it.

The court further found that admission of the evidence was harmless, even if counsel should have discovered the earlier ruling.

Marital privilege

The court also held that, even if trial counsel failed to properly raise the marital privilege issue and object to inadmissible testimony, the errors also were harmless.

The version of sec. 905.05 in effect at the time of trial provided, in relevant part:

“(1) General rule of privilege. A person has a privilege to prevent the person’s spouse or former spouse from testifying against the person as to any private communication by one to the other made during their marriage.”

“(2) Who may claim the privilege. The privilege may be claimed by the person or by the spouse on the person’s behalf. The authority of the spouse to do so is presumed in the absence of evidence to the contrary.”

Accordingly, the State acknowledged on appeal that its response to the objection at trial was erroneous.

However, the court found that most of the testimony of Eison’s spouse was admissible anyway.

Examining various statements, the court concluded they were not privileged because the testimony either described actions rather than communications, or because the communications occurred over the phone while Eison was in jail, and all telephone calls by inmates are recorded.

The court concluded that, even if the small portion of the testimony that related privileged communications had been excluded, the jury would still have found Eison guilty.

The case is State v. Eison, No. 2010AP909-CR.

David Ziemer can be reached at [email protected].