author: ANDERSON, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Sylvester Sigarroa, Defendant-Appellant.

    Court of Appeals

      No. 03-0703-CR.

      Submitted on briefs October 23, 2003.

      Decided December 10, 2003.

    2004 WI App 16
    (Also reported in 674 N.W.2d 894.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John A. Pray of Frank J. Remington Center, University of Wisconsin Law School, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David H. Perlman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 2-24-04.

   ANDERSON, PJ.

¶ 1. Sylvester Sigarroa appeals from a judgment of conviction and an order denying postconviction relief for conspiracy to possess cocaine with intent to deliver contrary to Wis. Stat. §§ 961.41(lx) and 961.41(lm)(cm) (2001-02), maintaining a dwelling that is used for manufacturing, keeping, or delivering controlled substances contrary to Wis. Stat. § 961.42(1); and possession of drug paraphernalia contrary to Wis. Stat. § 961.573(1). Sigarroa argues that the police search of a trash dumpster located outside of his apartment building violated his Fourth Amendment rights because he had a reasonable expectation of privacy in his trash. Sigarroa also contends that the trial court erred in denying his motion for a mistrial made when a key State witness improperly implied to the jury that Sigarroa had a prior criminal record. We conclude that Sigarroa did not have an actual, subjective expectation of privacy; we further conclude that considering the facts and circumstances of this case, society would not recognize an expectation of privacy as reasonable. Finally, we conclude that under the entirety of the case, the impropriety of the statements by the State's witness was not so prejudicial as to affect the verdict, given that the court struck the statements at the time and that at the conclusion of trial, the court instructed the jury to "[disregard entirely any question that the court did not allow to be answered" and provided the jury with written instructions to ignore all things stricken. Therefore, we affirm.

FACTS

¶ 2. The facts are undisputed. On February 13, 2001, at approximately 11:00 p.m., Detective David Janisch went to an apartment complex located at 314 Sentinel Drive in Waukesha. Janisch was acting on the basis of several anonymous tips that Sigarroa, who lived in apartment #2 of the complex, had been involved in recent drug dealings. Janisch planned to engage in a garbage search, a technique he had used "a couple of hundred times" in the past in drug investigations. Janisch drove into the apartment complex parking lot and then walked over to the dumpster, which was visible from the road and located approximately 170 feet from the public street and approximately 53 feet from the apartment building.

¶ 3. Janisch drove his car down the driveway past the apartment building, on which a "Private Property" sign was posted. Janisch testified that he did not see the sign. Janisch did not seek or obtain permission from the owner or from any of the residents to enter the property or to search the contents of the dumpster; he did not have a warrant authorizing an entry or search. Janisch did not have to walk through any barriers or gates to access the dumpster and the lid of the dumpster was open. Janisch testified that he reached into the dumpster and removed three or four black plastic garbage bags, which were knotted at the top. Janisch searched the garbage bags and found marijuana seeds and stems, a handwritten note stating that there was "weed" in a duffel bag in the closet, and some unburned "Chore Boy," an item he knew to be frequently used as a filter for ingesting crack cocaine.

¶ 4. Based on this evidence, along with other information, Janisch procured and executed a search warrant for Sigarroa's apartment on February 15, 2001. The search warrant resulted in the discovery of crack cocaine and drug paraphernalia.

¶ 5. Prior to trial, Sigarroa filed a motion to suppress the evidence the police obtained from the garbage dumpster, claiming that the warrantless search violated his Fourth Amendment rights against unreasonable searches and seizures. Following a suppression hearing, the court denied the motion. The court stated that there was a sufficient basis for the issuance of the search warrant based on the totality of all the evidence, which included that the dumpster was not enclosed and was available for use to the other residents in the apartment building.

¶ 6. Also, before trial, Sigarroa filed a motion in limine requesting, among other things, that the State be prohibited from any mention or use of Sigarroa's prior criminal conviction(s), if any, until a hearing was held to determine admissibility. At a hearing on the motion, the parties informed the court that they had entered into a stipulation as to how to handle Sigarroa's prior record in the event that he would choose to testify at the trial. The parties agreed that if Sigarroa were to testify, the State could ask Sigarroa if he had been convicted of a crime and, if he answered truthfully, the State could ask how many times. In response, Sigarroa would answer, "four." In other words, the parties agreed that mention of Sigarroa's criminal history would be made only if Sigarroa testified and then it would be limited to whether he had a prior record and to his total amount of previous convictions.

¶ 7. A jury trial was held on April 16 and 17,2002. Sigarroa did not testify and called no witnesses in his defense. None of the State's witnesses testified during direct examination as to Sigarroa's criminal history. However, during cross-examination of Detective Paul Piakowski, defense counsel asked what background information Piakowski had been given before interviewing Sigarroa. The following exchange occurred:

[PIAKOWSKI]: The only background I had about the case was that — what we found, it was found on, whose apartment it was supposed to be, and Mr. Sigarroa's criminal history.
[DEFENSE COUNSEL]: So you are basically testifying you had no other conversation with any other police officer concerning this matter before you went in to talk to Mr. Sigarroa?
[PIAKOWSKI]: Just that Mr. Sigarroa had some prior
[DEFENSE COUNSEL]: I move to strike your honor.
[COURT]: Thank you. The jury will disregard anything further. You only testify as to the question that is asked, sir.

¶ 8. During the course of the trial, the State presented the following major blocks of evidence in support of its case against Sigarroa:

1) The police executed the search warrant on Sigarroa's apartment and a vehicle parked outside the apartment and found 13 rocks of crack cocaine, a black postal-type scale, a glass pipe, two single edge razor blades in the kitchen area, several baggies, approximately $250 in cash, and a spiral notebook containing names and numbers appearing to be notations of drug transactions.
2) The comprehensive testimony of a co-conspirator in which she explained to the jury that she and Sigarroa would travel to Milwaukee to purchase crack cocaine, would then return to their apartment in Waukesha to cut up the cocaine into smaller rocks, would then package the smaller cocaine rocks in baggies, and then resell the cocaine. This co-conspirator did not receive any consideration from the district attorney's office for her testimony; the prosecutor recommended a prison sentence pursuant to her conviction on a felony drug charge.
3) Sigarroa's confession, which was introduced through the testimony of Detective Piakowski. Piakowski related to the jury Sigarroa's statement that he could not work because of injuries sustained during a car accident and decided to sell crack cocaine to make ends meet. Piakowski further testified as to how Sigarroa told him how he and his co-conspirator would sell crack cocaine from their apartment, how they made a profit on this enterprise, and how he had placed the rocks of cocaine in his co-conspirator's coat pocket on the date the search warrant was executed. Piakowski reduced Sigarroa's statement to writing and then Sigarroa read the written statement. Sigarroa refused to sign or initial the statement; however, he told Pia-kowski that everything that was written down was true.

¶ 9. At the close of testimony, the court instructed the jury. Part of the court's instruction to the jury included the following:

Disregard entirely any question that the Court did not allow to be answered. Do not guess what the witness' answer might have been. If the question, itself, suggested that certain information might be true, ignore the suggestion; do not consider the evidence.

Additionally, the trial judge provided the jury with a written set of instructions including Wis JI — Criminal 150 which states: "During the trial, the court has ordered certain testimony to be stricken. Disregard all stricken testimony."

¶ 10. After the jury had begun deliberations, the trial judge informed the parties of an incident which occurred during a recess. The judge stated that he had a conversation at lunch with the alternate juror who had been dismissed before the recess. The judge then described the following exchange:

He [the alternate juror] said, that was an interesting experience. I said, I'm glad you enjoyed it, and he said something to the effect that you certainly shut that officer up in a hurry when he tried to talk about the prior act, prior drug or prior something. He used the word "prior." I reported that to the attorneys when I came back just for — because I felt I had an obligation to do so.

¶ 11. Upon hearing of the judge's encounter with the alternate juror, defense counsel moved for a mistrial, arguing that the officer's statement was prejudicial because the statement informed the jury that Sigarroa had a prior criminal conviction. The court took the motion under advisement and ultimately denied the motion, ruling that the curative instruction was sufficient and the evidence against Sigarroa was "overwhelming." After less than two hours of deliberation, the jury returned a guilty verdict on all three counts charged against Sigarroa.

¶ 12. In a postconviction motion, Sigarroa claimed that his trial counsel's objection to Piakowski's statement was inadequate in its failure to ask for a curative instruction telling the jury to disregard the statement. According to the motion, the court's instruction to the jury to "disregard anything further" was insufficient to inform the jury that it must disregard the improper testimony that was already given. However, at the postconviction motion hearing, the court ruled that counsel was not deficient in this regard, and that even if counsel had been deficient, Sigarroa was not prejudiced in view of the strength of the evidence against him. This appeal followed.

LAW AND DISCUSSION

¶ 13. Motion to Suppress and Constitutional Issue. In reviewing a trial court's denial of a motion to suppress evidence, the trial court's findings of fact are to be upheld unless clearly erroneous. Wis. Stat. § 805.17(2); State v. Roberts, 196 Wis. 2d 445, 452, 538 N.W.2d 825 (Ct. App. 1995). However, whether a search passes constitutional muster is a question of law to be decided de novo. Roberts, 196 Wis. 2d at 452. This case is guided by the Fourth Amendment to the United States Constitution, which states: "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]" The Fourth Amendment does not require that every search be made pursuant to a warrant, but the United States Supreme Court has stated that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th Amendment— subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967).

¶ 14. The State and Sigarroa propose different tests for determining the constitutionality of a warrant-less garbage search. Quoting State v. Stevens, 123 Wis. 2d 303, 316, 367 N.W.2d 788 (1985), Sigarroa proposes that whether the Fourth Amendment protects an individual's interest in garbage "depends on whether that individual can claim a reasonable expectation of privacy in that garbage which has been invaded by government action." Under Stevens, this determination involves a two-part test and Sigarroa urges that we apply it to the case at bar: (1) whether the individual by his or her conduct Mas exhibited an actual, subjective expectation of privacy, and (2) whether that expectation is justifiable in that it is one which society will recognize as reasonable. Id.; see also State v. Rewolinski, 159 Wis. 2d 1, 13, 464 N.W.2d 401 (1990).

¶ 15. The State agrees with Sigarroa that the ultimate determination is the individual's reasonable expectation of privacy, but contends that that conclusion can only be determined by applying a different two-step process: (1) whether the garbage was abandoned, and (2) whether the garbage was found within the curtilage or in open fields. Citing United States v. Dunn, 480 U.S. 294, 301 (1987), the State urges that we apply the following four-pronged analysis to separately determine whether an area is within the curtilage or in open fields: (1) the proximity of the area claimed to be in the curtilage of the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature and uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by.

¶ 16. Both parties are able to cite case law in support of their competing approaches. However, upon close review of the relevant cases, it appears to this court that the law has moved away from the strict "curtilage" approach. Fewer and fewer cases speak to curtilage as a separate factor. The modern trend is to look at the issue in terms of the approach advocated by Sigarroa. For example, in California v. Greenwood, 486 U.S. 35 (1988), a case in which the defendant sought Fourth Amendment protection for garbage, the United States Supreme Court did not ground its ruling on the basis of curtilage. In fact, the opinion did not even mention whether Greenwood's garbage was inside or outside the curtilage. Rather, the Court's analysis is entirely geared toward whether Greenwood had a reasonable expectation of privacy in his garbage, which was left at curbside for collection. Id. at 40. Instead of ruling whether the garbage was within the curtilage, the Court ruled that Greenwood could not reasonably expect privacy in his garbage for two reasons: (1) he placed his garbage bags on a public street where they were "readily accessible to animals, children, scavengers, snoops, and other members of the public"; and (2) he placed his garbage bags at the curb for the "express purpose of conveying it to a third party." Id.

¶ 17. Moreover, in United States v. Shanks, 97 F.3d 977, 978-79 (7th Cir. 1996), another case in which the defendant sought Fourth Amendment protection, this time for garbage placed adjacent to a public alley, the court said, "[T]he mere intonation of curtilage does not end the inquiry." There the court concluded that "Shanks could harbor no reasonable expectation of privacy since the garbage was essentially exposed to the public." Id. at 980.

¶ 18. Finally, in State v. Yakes, 226 Wis. 2d 425, 433, 595 N.W.2d 108 (Ct. App. 1999), a garbage case recently decided, we held that the defendant did not have a reasonable expectation of privacy in a dumpster that was in a commercial area because the area was open to the public and the defendant took no steps to privatize the area. Yakes differs from this case because the dumpster was in a commercial area. But Yokes is nonetheless instructive because both residential and commercial property are protected from unreasonable searches and seizures by the Fourth Amendment. Lundeen v. Dep't of Agric., Trade & Consumer Prot., 189 Wis. 2d 255, 261, 525 N.W.2d 758 (Ct. App. 1994). The following excerpt from Yokes, 226 Wis. 2d at 430, demonstrates that the modern trend is to analyze such cases under the approach urged by Sigarroa:

Whether a warrantless search and seizure of garbage is constitutionally reasonable depends on whether the defendant had a legitimate expectation of privacy in the garbage. [See California v. Greenwood, 486 U.S. 35, 39 (1988).] There are two prongs to this determination. See State v. Rewolinski, 159 Wis. 2d 1, 13, 464 N.W.2d 401, 405 (1990). The first question is whether the individual challenging the search had a subjective expectation of privacy. See id. The second question is whether that expectation of privacy is one which society is prepared to recognize as legitimate. See id. In other words, the defendant must show that he or she had a subjective expectation of privacy that was objectively reasonable. [See Greenwood, 486 U.S. at 39-40.] (Footnotes omitted.)

¶ 19. Adhering to the development of the case law, we are persuaded that the proper analysis comes under the two-part test proposed hy Sigarroa: (1) whether the individual by his or her conduct has exhibited an actual, subjective expectation of privacy, and (2) whether that expectation is justifiable in that it is one which society will recognize as reasonable. Stevens, 123 Wis. 2d at 316. This is not to say that the State's analysis is entirely off base. We simply hold that a discussion of curtilage/open fields appropriately falls within an expectation-of-privacy analysis and is not a separate factor as the State suggests.

¶ 20. Turning to the facts at hand, we first must determine whether Sigarroa demonstrated an actual, subjective expectation of privacy regarding the garbage he placed in the dumpster. Sigarroa claims that the following evidence "is sufficient to demonstrate that [he] had an actual, subjective expectation of privacy in his trash":

The apartment was rented in [Sigarroa's] name, so there is no question that he was a resident of the apartment and has proper standing to assert his expectation of privacy. Cf. State v. Whitrock, 161 Wis. 2d at 981. The trash was placed in a black plastic garbage bag that was tied at the top. The bag was placed in a dumpster on private property, well away from the road. The trash was not set out on a curb for collection, and the only practical way to access the dumpster was to travel 173 feet down a private driveway, past a "Private Property" sign. The dumpster had lids, and while the dumpster could be seen from the road, the trash inside could not. On the dumpster were signs warning "[D]o not play in, on or around or occupy this container for any purpose," and "[D]o not play on or around."

¶ 21. We do not agree that the above evidence sufficiently demonstrates that Sigarroa had an actual, subjective expectation of privacy in his trash. We reach this conclusion based on the following evidence. The garbage was placed in a dumpster located at the far rear of the apartment building property. The garbage was placed in the dumpster with the knowledge of and expectation that it would be picked up for disposal by the garbage collection service. While the property was surrounded on three sides by a fence, the fence did not impede access to the property or to the dumpster. Although the property had a "Private Property" sign and signs warning that there should be no playing around the dumpster, the signs did not bar observation of the dumpster from the street or impede access to the dumpster. The dumpster was located in an area totally unassociated with activities that would normally be associated with notions of privacy.

¶ 22. We now turn to the second prong of the two-part test and hold that even if Sigarroa had demonstrated an actual, subjective expectation of privacy, we cannot say that his expectation is justifiable in that it is one which society would recognize as reasonable. In making our determination, we look to whether our society would expect to have privacy in this garbage under the facts of this case. It is our view that society would not recognize a reasonable expectation of privacy when garbage is thrown into a dumpster with the knowledge and the expectation that control of the garbage would be turned over to third parties. Society would expect that while the most immediate third-party recipient of garbage in a dumpster would be a garbage collector, that is not the only third party one can envision taking control of this garbage. It would not be unreasonable under these facts for society to expect access to the garbage by other third parties (i.e., scavengers and the like) when such garbage is easily accessible to the public. As noted, this garbage was abandoned in a dumpster that was both visible from the street and had unimpeded access from the street. See Greenwood, 486 U.S. at 40. Garbage receptacles "cannot he equated to a safety deposit box," United States v. Shelby, 573 F.2d 971, 973 (7th Cir. 1978), and "[t]here is nothing unfair about requiring that people not discard things they want to keep secret, or destroy them before they do." United States v. Kramer, 711 F.2d 789, 792 (7th Cir. 1983). Evaluating this case on its particular facts, we hold that Sigarroa's Fourth Amendment protection claim fails.

¶ 23. Motion for Mistrial. We now address Sigarroa's claim that the trial court erred in denying his motion for a mistrial based on Piakowski's improper implication to the jury that Sigarroa had a prior criminal record.

¶ 24. The decision whether to grant a mistrial lies within the sound discretion of the trial court. State v. Ross, 2003 WI App 27, ¶ 47, 260 Wis. 2d 291, 659 N.W.2d 122, review denied, 2003 WI 91, 262 Wis. 2d 501, 665 N.W.2d 375 (Wis. June 12, 2003) (No. 02-0121-CR). The trial court must determine, in light of the whole proceeding, whether the claimed error was sufficiently prejudicial to warrant a new trial. Id. The denial of a motion for a mistrial will be reversed only on a clear showing of an erroneous use of discretion by the trial court. Id. Generally, an improper but unanswered question is not sufficient error to require reversal on appeal. Genova v. State, 91 Wis. 2d 595, 621, 283 N.W.2d 483 (Ct. App. 1979). Where the trial court gives the jury a curative instruction, this court may conclude that such instruction erased any possible prejudice, unless the record supports the conclusion that the jury disregarded the trial court's admonition. Id. at 622.

¶ 25. Upon this record, Piakowski's improper reference to Sigarroa's prior criminal history was not prejudicial enough to affect the verdict. Sigarroa argues that the alternate juror's comment to the trial judge "proves that not only did the jury hear the comment, the contents of the comment registered . . . with them as well, illustrating the difficulty jurors have in disregarding such negative information regarding a defendant." Sigarroa further argues that the court's instruction failed to give the jury the correct information, which would be to disregard Piakowski's previous answer.

¶ 26. We conclude that the exchange between the trial judge and the alternate juror illustrates something quite different than what Sigarroa contends. The alternate juror's statements to the trial judge signal that this juror understood the judge's earlier ruling as forcefully striking Piakowski's improper testimony referencing Sigarroa's prior record. This, coupled with the judge's jury instruction at the close of testimony, was sufficiently curative. .

¶ 27. Given our interpretation of the exchange between the alternate juror and the trial judge, given the trial judge's instructions to the jury to ignore all things stricken, and given the overwhelming evidence against Sigarroa, we are satisfied that the trial court did not err in holding that the violation was not so prejudicial that it affected the verdict. Thus, the trial court did not err when it denied Sigarroa's request for a mistrial.

¶ 28. We do not end our discussion here. Instead, we are compelled to admonish the increasing pattern of witness and/or attorney violation of in limine orders. On several occasions, we have spent judicial time and resources to make a very similar admonition. Unfortunately, it appears our reproach has fallen on deaf ears because the pattern of these violations continues.

¶ 29. We now reiterate the message of our previous admonitions; our objective is to raise the intensity of our delivery to an appellate shout:

This is not the first time the court of appeals has been faced with [a violation of] an order keeping out prejudicial material.... [W]e fear that this is happening with increasing frequency. The scenarios differ, but a common thread seems to be that it happens in a jury case of some length.- The suspect line of questioning is gone into when the trial is well underway. [In the case of attorney violation of in limine orders,] [i]t is almost as if the attorney takes the risk that the trial court will be more inclined to finish the trial than declare a mistrial due to prejudice. Thus, the jury hears the damaging evidence and the lawyer gets what he or she wants with little more than a rebuke from the trial court.

Gainer v. Koewler, 200 Wis. 2d 113, 121-22, 546 N.W.2d 474 (Ct. App. 1996).

¶ 30. We are convinced that the bar, and, particularly, the bench, should be aware of the increasing phenomenon of violations and should take measures designed to increase the risks to attorneys, witnesses, parties and/or any persons who have a role in violations of motion in limine orders. See id. at 122. In our unremitting effort to eliminate this conduct, we now offer the following suggestions to the trial courts — any of which, if employed, would go a long way in avoiding violations of motion in limine orders:

(1) Prior to trial, outside the presence of the jury, the court could address the attorney bound by the motion in limine order and get that attorney's assurance that each and every witness has been instructed about the order;
(2) Prior to a pertinent witness testifying before the jury, the witness could be put on the stand, outside the presence of the jury, sworn, and then asked:
a. if he or she is aware of the motion in limine order,
b. if he or she understands what evidence is barred and,
c. if he or she will abide by the court's order;
(3) Prior to the witness testimony, reduce the motion in limine order to writing and have a copy served upon each witness.

¶ 31. The practice of flouting motion in limine orders has become nearly epidemic. Trial courts must be proactive in order to end this flagrant misconduct. "[T]his court's warning shot across the bow, we hope, will help alert everyone in the legal profession that it is time for the judiciary to exercise more control." Id. at 124.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The pretrial ruling was made by Reserve Judge John Fiorenza. The jury trial was conducted by Judge Patrick Snyder.

       In Sigarroa's postconviction motion, he also claimed that in the event the court would conclude that the mistrial motion was untimely since it was not made until after the judge's conversation with the alternate juror, counsel was ineffective. In its response to the postconviction motion, the State conceded that the mistrial motion was timely.

       Sigarroa's appellate brief states that his argument that the search in this case violated the United States Constitution includes an assertion that the search violated article I, section 11 of the Wisconsin Constitution. While Sigarroa's brief does not make a separate argument as to the state constitution, we accept his request that we consider his appeal to be an assertion of a violation under both the federal and state constitutions.

       Black's Law Diotionary 389 (7th ed. 1999) defines "curtilage" as follows: "The land or yard adjoining a house, usu. within an enclosure. Under the Fourth Amendment, the curti-lage is an area usu. protected from warrantless searches."
      Black's Law Dictionaby 1118 (7th ed. 1999) defines the "open-fields doctrine" as follows:

        Criminal procedure. The rule permitting a warrantless search of the area outside a property owner's curtilage, which includes the home’and any adjoining land (such as a yard) that is within an enclosure or otherwise protected from public scrutiny. — Also termed open-field doctrine; open fields rule. Cf. PLAIN-VIEW DOCTRINE.

       Detective Piakowski's testimony was an unquestionable violation of the trial court's in limine ruling and it is the catalyst for our decision to spend time at the end of this opinion admonishing this sort of conduct.

       We commend the trial judge for informing the parties and making a record of his encounter with the alternate juror.

       The following are merely a sampling of the many cases illustrating the continuing pattern of witness and/or attorney violations of in limine orders:

        Gainer v. Koewler, 200 Wis. 2d 113, 546 N.W.2d 474 (Ct. App. 1996): In Gainer, David M. and Dana M. Gainer claimed that their child, Justin R. Gainer, was the victim of negligence by two physicians involved in Justin's birth. Id. at 115. Prior to trial, the Gainers moved the trial court for an order that no mention be made at trial of the fact that David had been arrested and convicted of spousal abuse. Id. at 117. The trial court ordered that nothing be said without a hearing. Id. When Dana testified on direct examination, no mention was made of any marital problems caused by Justin's injuries. Id. at 117-18.
      Nonetheless, on cross-examination, Koewler's attorney asked and Dana answered the questions about police contacts after the birth of Justin. Id. at 117-19. The questions also provoked a motion for a mistrial. Id. at 119.
      Although we affirmed the trial court's denial of a mistrial, we expressed concerns about counsel's violation of the in limine order. Id. at 115-16. We wrote that a violation of an in limine order could be considered a breach of counsel's ethical obligation. Id. at 123. We noted that among the specific provisions of Wisconsin rules governing attorney professional conduct, SCR 20:3.4(c) states that a lawyer shall not:
      knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

        Gainer, 200 Wis. 2d at 123.
      We then urged trial courts to exercise greater control over trials in order to avoid these breaches. Id. at 122. Finally, we stated that our concerns were a warning shot across the bow of the profession. Id. at 124.

        Esser v. Myer, No. 95-1994, unpublished slip op. (Wis. Ct. App. Nov. 13, 1996): Esser addressed a claim of legal malpractice. Id. at 1. Within the appeal, we addressed Esser's claim that the jury should have been able to review an appraisal of a home that was a central part of her proof and referred to extensively during trial. Id. at 6.
      We considered this claim "irksome" in light of the trial court's ruling on a motion in limine that the exhibit was inadmissible. Id. We noted that the record reflected that Esser violated the trial court's ruling by asking the bank loan officer about the value based on the appraisal. Id. We noted that Esser then had the "audacity" to suggest that the appraisal should be admitted because the bank officer had already testified to it. Id.

      As did. the trial court, we recognized Esser's conduct as "bootstrapping." Id. We then referred back to Gainer, noting that we had previously "stated our disdain for this type of trial tactic" and reiterated the need to impose some sanctions on litigants who violate motion in limine orders with the assumption that there is no associated risk. Esser, unpublished slip op. at 6.

        State v. Ragan, No. 96-0352-CR, unpublished slip op. (Wis. Ct. App. Jan. 22, 1997): Ragan appealed from a judgment of conviction for filing a false declaration of candidacy. Id. at 1. Prior to trial, the State filed a motion in limine seeking to exclude at trial any reference to the fact that Ragan had won the election but had not been seated for the position of town supervisor. Id. In support of its motion, the State argued that such evidence was inadmissible and that the jury might conclude that Ragan's loss of the position he had won in the election might be sufficient punishment. Id. The trial court agreed and granted the State's motion. Id.

      Contrary to this ruling, a defense witness testified before the jury that Ragan had won the election. Id. at 2. The State moved for a mistrial. Id. The court granted the motion over Ragan's objection. Id.

        State v. English-Lancaster, 2002 WI App 74, 252 Wis. 2d 388, 642 N.W.2d 627, review denied, 2002 WI 48, 252 Wis. 2d 151, 644 N.W.2d 687 (Wis. Apr. 22, 2002) (No. 01-1455-CR):
        English-Lancaster appealed from a judgment of conviction for second-degree sexual assault and an order denying his motion for postconviction relief. Id., ¶ 1. English-Lancaster argued that the trial court should have declared a mistrial when a witness testified as to other acts evidence in violation of a pretrial court order to the contrary based upon a stipulation entered into by both English-Lancaster and the State. Id. English-Lancaster argued that the curative jury instruction provided by the court was insufficient to cure the error. Id.

      English-Lancaster filed a motion in limine seeking to prohibit the State from introducing any evidence concerning alleged acts of criminal or other misconduct by the defendant either prior to or following the date of the alleged offense charged in the complaint. Id., ¶ 4. At a motion hearing, defense counsel conceded that the State had not indicated that it would be introducing other acts evidence but he was concerned that the State's discovery materials alluded to allegations made by another individual which counsel believed could be prejudicial. Id. The prosecutor confirmed that the police had interviewed another person in connection with the investigation but advised the trial court that the State did not intend to introduce that witness's testimony as part of its case-in-chief. Id. The trial court then granted the defense's motion, stating, "Well, at least as to the state's case-in-chief, the court will grant the motion in limine, because it's been indicated there won't be other acts introduced." Id.

      The trial then continued. Id., ¶ 9. During the State's case-in-chief, the prosecutor called a police detective to the stand. Id. The detective testified that during his interview of English-Lancaster:
      I had asked, based upon my interview with [S.G.] and another employee where I was gathering a history of kind of the relationship between these employees, I had asked Mr. English-Lancaster if he had ever made comments of a sexual nature to [S.G.] and another employee, and he stated that he had not and that he always maintained a professional — he always remained professional at the work place.

        Id.

      The prosecutor then asked the detective whether he asked English-Lancaster any other questions about contact between him and the alleged victim. Id. The detective testified:
      Yes, I did. I had asked him if he had ever touched the buttocks of either [S.G.] or this other employee, and he responded "no." Which I then followed up with another question, which was would there be any reason why, when I'm reviewing the videotape surveillance, would there be any reason why I would see you touching the buttocks of either [S.G.] or this other employee. And he said he didn't know, and I asked him if that was a possibility, something that I may see on the video, and he said, 'Yes, it's a possibility."

        Id., ¶¶ 9-10.
      Shortly thereafter, during a court-initiated recess, defense counsel complained that the detective's testimony unwittingly violated the court's ruling on the motion in limine because it referred to English-Lancaster's alleged conduct toward another employee; defense counsel asked the court to instruct the jury to disregard that testimony. Id., ¶ 10. The prosecutor indicated that he was unaware of the court's previous ruling (he had replaced the earlier prosecutor in the case) and the trial court agreed, "[T]here was going to be no mention of any other incidents." Id. The parties then discussed an appropriate curative instruction. Id. Defense counsel did not request a mistrial. Id.

        State v. Seefeldt, 2002 WI App 149, 256 Wis. 2d 410, 647 N.W.2d 894, aff'd, 2003 WI 47, 261 Wis. 2d 383, 661 N.W.2d 822: Like Gainer, this case contained issues regarding attorney violation of a motion in limine order; however, here the defense attorney, rather than the prosecuting attorney, acted improperly. Seefeldt, 256 Wis. 2d 410, ¶ 1. The trial court granted the State's request for a mistrial on the ground that defense counsel's reference to a witness's outstanding warrants violated a pretrial order prohibiting introduction of other acts evidence until the trial court ruled on its admissibility. Id. In addressing the appeal issues, we "assume[d] without deciding that counsel blatantly violated a pretrial order prohibiting any mention of other crimes or acts until the court had a chance to decide their admissibility." Id.


source: Caselaw Access Project

author: VERGERONT, J. LUNDSTEN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Lucian Agnello, Defendant-Appellant.
    Court of Appeals

      No. 00-2599-CR.

      Submitted on briefs August 13, 2003.

      Decided December 11, 2003.

    2004 WI App 2
    (Also reported in 674 N.W.2d 594.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jerome F. Buting, Buting & Williams, S.C., Brookfield.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory M. Weber, asst, attorney general, and James E. Doyle, attorney general.
    Before Dykman, Vergeront and Lundsten, JJ.

       Petition to review denied 2-24-04.

   VERGERONT, J.

¶ 1. Lucien Agnello appeals a judgment of conviction for first-degree intentional homicide, party to a crime. The issues are: (1) whether Agnello's confession was voluntary and therefore admissible; and (2) if we affirm the trial court's ruling that the confession was voluntary, whether Agnello was entitled to a trial because of the Wisconsin Supreme Court's vacation of his original conviction. We conclude the trial court correctly decided his confession was voluntary. We also conclude that Agnello is entitled to a trial. Accordingly, we affirm the order of the trial court denying Agnello's motion to suppress his confession, vacate the judgment of conviction, and remand for trial.

PROCEDURAL HISTORY

¶ 2. On February 18, 1996, the Milwaukee Police Department arrested Agnello in connection with the murder of his foster father, Theodore Agnello. Near the end of several interrogation sessions taking place between 4:30 a.m. to 3:20 p.m. the day after his arrest, Agnello confessed to the murder. After the trial court determined in a Goodchild hearing that Agnello's confession was voluntary, Agnello pleaded guilty. Ag-nello appealed the judgment of conviction, contending that the trial court committed error by allowing the prosecutor to cross-examine him at the Goodchild hearing regarding the truthfulness of his confession, and that the trial court erred in deciding his confession was voluntary. This court affirmed the judgment of conviction.

¶ 3. The supreme court granted Agnello's petition for review and concluded that the prosecutor had improperly questioned Agnello at the Goodchild hearing about the truthfulness of his confession. Because the trial court had based its ruling that Agnello's confession was voluntary in part on his answers to the improper questions, the supreme court reversed that ruling, vacated the conviction and remanded the case to the trial court for a new Goodchild hearing. State v. Agnello, 226 Wis. 2d 164, 182, 593 N.W.2d 427 (1999).

¶ 4. After hearing testimony at the second Good-child hearing, the newly assigned judge determined that Agnello's confession was voluntary. The trial court also reinstated the judgment of conviction. The court reasoned that, after the second hearing, Agnello was returned to the same position he was in after the original judge denied his motion to suppress. Agnello appealed to this court, contending the trial court erred in determining his confession was voluntary and the supreme court's vacation of his conviction meant he was entitled to a new trial. This court certified these issues to the supreme court under Wis. Stat. Rule 809.61, and the supreme court granted certification. However, the supreme court ultimately vacated its order granting certification and remanded the case to this court.

FACTUAL BACKGROUND

¶ 5. The trial court at the second Goodchild hearing found the following facts regarding Agnello's confession. Agnello was arrested at approximately 11:20 p.m. on February 18, 1996. He was transported to the police department at about 2:00 a.m. the following day, February 19. After getting to the station Agnello was placed in a standard interrogation cell estimated to be between eight-by-ten to ten-by-ten feet in size. The room had a table, some chairs, and a ring on the wall at about the level of the table. Agnello was questioned in the room from approximately 4:30 a.m. to 3:20 p.m. in three sessions involving different teams of officers, with breaks during all sessions. The first session took place from approximately 4:30 to 6:00 a.m. The second session took place from approximately 6:00 to 7:30 a.m. The third session began at approximately 10:15 a.m. and ended at approximately 3:20 p.m., with a break from 11:40 a.m. to 1:15 p.m. and a later twenty-minute break. Agnello was advised of his Miranda rights and waived them three times: once at the beginning of the first session and twice more over the course of the interrogation. Agnello began to admit culpability at about 11:40 a.m. By the end of the third session, Agnello had completed his confession that he was involved in the killing of his foster father.

¶ 6. The court found that throughout the interrogation, Agnello was coherent, gave appropriate answers to questions, and was not seen sleeping. There was no indication Agnello was under the influence of alcohol or drugs. The detectives were not armed. Agnello was given food, coffee, water, and cigarettes over the course of the interrogation, and he was allowed to use the bathroom at least once. He was asked if he needed sleep, if it was okay to continue, and he indicated he wanted to go on. The officers did not make promises to Agnello in return for the confession nor did they threaten him. They did not scream or raise their voices.

¶ 7. The trial court found that Agnello was not handcuffed to the ring on the wall when he was being interrogated, but was likely handcuffed to the ring during at least some of the breaks. When handcuffed to the ring, the court found, Agnello would not have been able to move around in the room, but would have been able to rest his head on the desk. The undisputed testimony of the detectives who interrogated Agnello was that he was not handcuffed during the interrogation sessions themselves. Some of the detectives could not recall whether Agnello was handcuffed during breaks in the questioning; others did not believe he was, although one detective testified that Agnello was handcuffed during a break from approximately 11:40 a.m. to 1:15 p.m. Two detectives stated it was department policy to handcuff a suspect if the suspect would be alone in a room for a substantial amount of time. The undisputed testimony on the manner of handcuffing a person to the ring was that one wrist was handcuffed and the other handcuff was on the ring. The location of the ring in relation to the table was such that when a person was handcuffed to the ring, he or she could rest the arm of the handcuffed wrist on the table when sitting down, could stand up, and could move a step or two.

DISCUSSION

I. Voluntariness of Agnello's Confession

¶ 8. Under the due process clause of the Fourteenth Amendment, confessions that are not voluntary are not admissible. Rogers v. Richmond, 365 U.S. 534, 540 (1961). When we review a trial court's determination on the voluntariness of a defendant's confession, we affirm the trial court's findings of historical facts unless they are clearly erroneous. See State v. Kieffer, 217 Wis. 2d 531, 541, 577 N.W.2d 352 (1998); Wis. Stat. § 805.17(2) (2001-02). However, the application of the constitutional standard to historical facts is a question of law, which we review de novo. Kieffer, 217 Wis. 2d at 541. The State has the burden of proving voluntariness by a preponderance of the evidence. Agnello, 226 Wis. 2d at 182.

¶ 9. In deciding whether a confession is voluntary, we inquire whether the confession was procured by coercive means or was the product of improper pressures exercised by the police; this is the focus of our inquiry because it is determinative of whether the inculpatory statement was the product of "free and unconstrained will, reflecting deliberateness of choice." State v. Clappes, 136 Wis. 2d 222, 235-36, 401 N.W.2d 759 (1987). In our inquiry we must determine whether the defendant was "the victim of a conspicuously unequal confrontation in which the pressures brought to bear on [the defendant] .. . exceeded the defendant's ability to resist." Id. at 236. We make this determination after looking at the totality of the circumstances surrounding the confession and balancing the personal characteristics of the defendant against the pressures imposed by the police to induce the defendant to respond to the questioning. Id. The personal characteristics to be considered may include the defendant's age, education and intelligence, physical and emotional condition, and prior experience with police. Id. These must be balanced against police pressures and tactics used to induce admission, such as the duration of the questioning, the general conditions under which the confession took place, any excessive physical or psychological pressure brought to bear on the declarant, any inducements, threats, or other methods used to compel a response, and whether the defendant was informed of his right to counsel and right against self-incrimination. Id. at 236-37. See also State v. Hoppe, 2003 WI 43, ¶¶ 39-40, 261 Wis. 2d 294, 661 N.W.2d 407.

¶ 10. Police conduct does not need to be egregious or outrageous in order to be coercive; subtle pressures are coercive if they exceed the defendant's ability to resist. Hoppe, 261 Wis. 2d 294, ¶ 46. If a defendant's condition renders him or her uncommonly susceptible to police pressures, those pressures may be coercive even though under another set of circumstances, they might not be coercive. Id. "[A]s interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the voluntariness calculus." Colorado v. Connelly, 479 U.S. 157, 164, (1986). A confession's truth or falsity has no direct bearing on the determination of voluntariness. Agnello, 226 Wis. 2d at 177.

¶ 11. Agnello points to several factors that, he asserts, made his confession coerced: (1) being handcuffed to the ring in the interrogation room; (2) the deprivation of sleep; (3) psychological coercion concerning the discussion of his foster mother; and (4) the length of isolation and interrogation, including questioning by "relay teams" of detectives. Considering these factors as part of the totality of the circumstances and balancing Agnello's personal characteristics against the pressures imposed by the officers, we conclude his confession was voluntary.

¶ 12. We will assume for purposes of this decision that Agnello was handcuffed to the ring on the wall for all breaks between interrogations. Agnello states in his brief, "The practice of chaining the accused to the wall has a strikingly medieval flavor that is offensive to basic notions of civilized and humane treatment.... The practice is coercive in and of itself." To support the proposition that this physical restraint, by itself, made his confession involuntary, Agnello cites three cases in which confessions have been ruled involuntary. In United States ex rel. Adams v. Benzinger, 507 F.2d 390, 393-95 (7th Cir. 1974), the recitation of facts included that the defendant was "locked to a radiator" for some period of time; however, that was not one of the three elements the court viewed as rendering the confession involuntary. The three elements were: (1) the defendant was not informed of his right to assistance of counsel and right to remain silent; (2) he was awakened from sleep by the police for questioning; and (3) he was of "low intellect and limited education." Id. at 394-95. In Knight v. State, 518 So. 2d 799, 800 (Ala. Crim. App. 1987), the defendant, who was "essentially illiterate," was handcuffed to a chair for most of a six-hour interrogation by two detectives, one armed, and both detectives used a "rapid-fire" questioning technique. That defendant also testified that he asked for food but was given nothing to eat, asked for a lawyer twice, and was threatened with a whipping. Id. Finally, in State v. Tom, 613 P.2d 842, 844 (Ariz. App. 1980), the defendant was handcuffed with his hands behind him and his face covered in a towel while being interrogated by the same officers who had beaten him and threatened to kill him during his "violent arrest" earlier.

¶ 13. We do not agree that these cases support Agnello's position. In these cases the handcuffing occurred in the context of egregious police conduct that did not occur here, such as beatings, armed officers, failure to honor defendants' constitutional rights and the placement of a towel over the suspect's face. These cases do not stand for the proposition that handcuffing in itself is coercive. In addition, unlike in those cases, Agnello was not handcuffed during the interrogation sessions themselves, but only during breaks when the officers left the room. Also, Agnello's mental capacity, literacy, and education are not factors making it more likely that police conduct was coercive.

¶ 14. Agnello's characterization of this handcuffing during breaks as "medieval" is not supported by the record. The police testimony indicated it was standard procedure to handcuff suspects in this manner when they would be alone for long periods of time, in order to prevent suicide attempts, escape, or property damage to the room. Agnello was able to sit on a chair while handcuffed and he could lay his head on the desk.

¶ 15. We next address Agnello's argument that he was deprived of sleep. Agnello points out that he was not allowed to lie down during his time overnight in custody, and he argues it is common sense that someone detained overnight would require sleep. Clearly, when Agnello was handcuffed to the wall, he was precluded from lying down. However, the trial court found this did not preclude sleep. The court stated:

it would not have been the most comfortable situation in which to sleep, but... it would have been possible certainly for the defendant to catch some sleep, but the ultimate point here is that the uncontroverted testimony was that the defendant never indicated that he wanted to sleep, that he needed to sleep, and that to the contrary, he told the police that he wanted to go on and even appeared impatient to continue with the interrogation.

¶ 16. These findings by the trial court are supported by the record. There was testimony that Agnello did not say he was tired or ask for time to rest, that he "appeared impatient" and that he said he felt well enough to continue with questioning when asked.

¶ 17. Agnello also argues that the detectives put undue psychological pressure on him by discussing his foster mother, Mary Agnello, during the interrogation. Mary had also been taken into custody the night of Agnello's arrest. One of the detectives testified that in the course of the interrogation "any time Mary's name came up... his [Agnello's] outward appearance changed. He seemed to be worried about her." The detective further testified that, at about 11:30 a.m., he told Agnello he was going to take a break with Agnello so he could speak to Mary. At that point Agnello said Mary was not involved and he began to break down and sob. The trial court found that very shortly thereafter, at approximately 11:40 a.m., Agnello began to admit culpability.

¶ 18. We do not agree with Agnello that the references to Mary constituted excessive psychological pressure that coerced his confession. The references to Mary did not in any sense resemble the types of threats and inducements that courts have held to be coercive, such as threatening that a suspect's children would be taken away if she did not cooperate, Lynumn v. Illinois, 372 U.S. 528, 534 (1963), or conditioning outside contact upon accession to police demands. Haynes v. Washington, 373 U.S. 503, 507 (1963). It is true that more subtle psychological pressure was considered coercive in Hoppe, 261 Wis. 2d 294, ¶¶ 55, 60, but only because of the particular vulnerability of the defendant. There the court concluded that the pressures of using emotional topics such as the death of the defendant's parents, the feelings of the victim's family, and the defendant's military service in Vietnam exceeded the defendant's ability to resist because of his "severely debilitated mental and physical condition." Id. Assuming that the police here used the references to Mary to pressure Agnello psychologically, it was not excessive pressure and Agnello was not unusually vulnerable because of any mental or physical condition. In addition, Agnello's prior police contacts made him less vulnerable than someone without that experience.

¶ 19. Finally, we address Agnello's argument that the length of isolation and detention, along with "relay-team" questioning, led to his confessing involuntarily. The trial court estimated the length of Agnello's detention before he began confessing from two different events: twelve hours when measured from Agnello's arrest and nine and one-half hours when measured from his arrival at the police station, because that was, in the trial court's words, when Agnello "probably had a sense of just how serious this situation was." Regardless of which estimate is used, we conclude the length of detention was not impermissibly long. Agnello cites to several cases in which courts have ruled confessions involuntary because they were procured only after long periods of detention and interrogation. The suspects in all but one of these cases, Spano v. New York, 360 U.S. 315 (1959), were detained for longer periods of time, ranging from twenty hours to seven days. In addition, in many of the cases the suspects were denied their right to counsel, whereas the trial court here found that Agnello waived his Miranda rights three times.

¶ 20. Agnello emphasizes that in Spano, the length of detention was only eight hours and the court nonetheless ruled the confession coerced. However, the other relevant circumstances in Spano were significantly different than those in this case. In Spano, the suspect was a twenty-five-year-old man who had "no past history of law violation or of subjection to official interrogation," only one-half year of high school, and a history of "emotional instability"; he was denied his right to counsel and interrogated virtually nonstop for eight hours. Id. at 321-23. In addition, the police had a young officer who was a childhood friend of the suspect interrogate him and falsely state that a phone call the suspect had made to him could cause him (the friend) to lose his job, which would harm the friend's wife and child. Id. at 323. In contrast, Agnello was given breaks during much shorter interrogation sessions and he was not denied counsel. He also had had previous contacts with police, and his mental capacity and education were not factors making it more likely that police conduct was coercive.

¶ 21. We do not agree with Agnello that the questioning methods of the police in this case were "relay-team" tactics. "Relay" questioning implies that different interrogators relieve each other in an effort to put unremitting pressure on a suspect. See 3 William E. Ringel, Searches & Seizures, Arrests & Confessions § 25.2(b) (2d ed. 1979). The trial court here found there were breaks both during and between interrogation sessions and at least one of the changes in interrogation teams was due to a shift change. These findings are supported by the record and do not constitute "relay-team" tactics that put unremitting pressure on Agnello.

¶ 22. We agree with the trial court's statement that "the most troubling thing here with respect to voluntariness is the lapse of time" between arrest and confession. However, considering this factor along with all the other circumstances, we are satisfied the confession was voluntary. We have already concluded that the physical restraint and psychological tactics used were not coercive, and the trial court found that Agnello was not deprived of sleep, food, or water during the interrogation sessions. The trial court also found that the detectives were not armed during the sessions, they did not make promises to Agnello in return for the confession, nor did they threaten him. In addition, the trial court found that Agnello had had multiple contacts with police as a juvenile, which is a factor that makes it less likely he would succumb involuntarily to police questioning. There is no evidence that Agnello was vulnerable because of any personal characteristic. Accordingly, we conclude the police did not coerce Agnello into giving an involuntary confession. The trial court therefore properly denied Agnello's motion to suppress his confession.

II. Interpretation of the Supreme Court's Ruling Vacating Agnello's Conviction

¶ 23. Because we conclude that Agnello's confession is admissible, we next consider whether Agnello was entitled to a trial following the supreme court's vacation of his original conviction. In its decision concerning the first Goodchild hearing, the supreme court stated, "[W]e reverse the court of appeals, vacate Agnello's conviction, and remand the cause to the circuit court for a new Goodchild hearing." 226 Wis. 2d 164 at 182. Agnello asserts that vacation of his conviction entitles him to a new trial. The State argues that the scope of the remand was limited to a new Goodchild hearing. In the State's view, the supreme court intended that, if Agnello's confession were ruled inadmissible, he would be allowed to withdraw his plea; but if his confession were again found voluntary, the error of the first Goodchild hearing would be corrected and the trial court was to reinstate the conviction and sentence.

¶ 24. The State urged us to certify this question to the supreme court if we had doubts about the procedural correctness of the reinstatement, saying, "There is no need for speculation when the supreme court may be called upon to clarify its intent." However, because the supreme court has vacated its acceptance of certification and remanded the case to this court, it is now our task to ascertain the supreme court's intent in using the language it did. We view this as a question of law and therefore decide it de novo.

¶ 25. We conclude that both Agnello's and the State's readings of the supreme court's language are reasonable. The supreme court expressly vacated the conviction and did not direct the trial court to reinstate it if it found the confession voluntary. As Agnello explains, there is a rational basis for not reinstating the conviction even if the trial court decided the confession was voluntary. When Agnello entered his plea, he did so after a Goodchild hearing at which he answered questions about the underlying crime, answers that might have been admissible at trial under some conditions. The second Goodchild hearing corrected the errors of the first hearing, but also arguably changed the circumstances relevant to the decision to enter a plea or go to trial. On the other hand, the State's view is also reasonable: the supreme court may have assumed the trial court would reinstate the conviction if it found the confession voluntary after a proper Goodchild hearing even though the supreme court did not direct the trial court to do so.

¶ 26. To resolve this issue, we have attempted to find cases in which the supreme court vacated convictions in similar circumstances, and we have located State v. Jiles, 2003 WI 66, 262 Wis. 2d 457, 663 N.W.2d 798. Jiles involves a defendant very similarly situated to Agnello. Jiles moved to suppress his statements to police on the grounds that they were involuntary and his Miranda rights were violated. Id., ¶ 3. After the hearing, the court denied his motion. Id., ¶ 19. Jiles then pleaded guilty to one count of first-degree reckless injury by use of a dangerous weapon and one count of armed robbery with the use of force, both as a party to a crime. Id., ¶ 20. Jiles appealed his convictions, contending that he did not receive a full and fair hearing on the motion to suppress. Id., ¶ 28. The supreme court agreed that the Miranda-Goodchild hearing was defective, stating that the trial court judge had "intervened and assumed the State's burden of establishing the existence of proper Miranda warnings and voluntariness." Id., ¶¶ 28, 38. After deciding that Jiles Miranda-Goodchild hearing was inadequate, the court stated: "Jiles is entitled to withdraw his guilty plea and to be granted a new and sufficient Miranda-Goodchild hearing. After this hearing, he is entitled to a trial if he so desires." Id., ¶ 49 (emphasis added).

¶ 27. We find the decision in Jiles instructive on the supreme court's intent when it vacated Agnello's conviction. Jiles was decided just one month after the supreme court issued the order in this case vacating the certification. We therefore assume the supreme court had in mind the lack of specific directions in Agnello when it chose to specify that Jiles was entitled to a trial if he desired. We can discern no reason why the supreme court would treat such similarly situated parties differently. In each case the defendant entered a guilty plea after his motion to suppress his statements was denied. In each case the supreme court determined that the hearing on the motion was defective and the defendant was entitled to another hearing, and it reversed the conviction.

¶ 28. We therefore conclude the supreme court intended that Agnello would be entitled to a trial after the Goodchild hearing if he chose, just as the court granted Jiles that choice. Accordingly, we reverse the trial court's order denying Agnello's request for a trial and remand for trial.

By the Court. — Judgment and order affirmed in part; reversed in part and cause remanded with directions.

LUNDSTEN, J.

¶ 29. (concurring in part; dissenting in part). I join that part of the majority decision affirming the trial court's decision to deny Agnello's motion to suppress his confession. I respectfully dissent from that part of the majority decision remanding with directions that Agnello be permitted to withdraw his guilty plea. It may be that Agnello deserves plea withdrawal, but the appropriate vehicle for determining that issue is a motion for plea withdrawal.

¶ 30. The majority first addresses the language used by the supreme court in 1999 when it vacated Agnello's original conviction. That language is as follows:

Accordingly, we reverse the court of appeals, vacate Agnello's conviction, and remand the cause to the circuit court for a new Goodchild hearing.

State v. Agnello, 226 Wis. 2d 164, 182, 593 N.W.2d 427 (1999).

¶ 31. Agnello argues that by vacating his conviction the supreme court was directing that, regardless whether the decision to deny suppression of his confession is reaffirmed on remand, Agnello's plea is deemed withdrawn and he is returned to the position he was in before he entered his guilty plea. That is, Agnello contends the supreme court was saying: Even if a new suppression hearing yields the same suppression result as the first flawed hearing, we return Agnello to his pre-plea hearing status. Agnello contends that this is a necessary interpretation of the language used above. He also contends that such an interpretation makes sense under the particular facts in this case.

¶ 32. I first address, as does the majority, whether the language used by the supreme court, when viewed in isolation, dictates that Agnello be restored to his pre-plea hearing status. Agnello interprets the language as meaning he is entitled to a new trial, regardless of the result of the new suppression hearing. The State interprets the language as meaning that, if Agnello's confession is found to be inadmissible on remand, he must be permitted to withdraw his plea, but if his confession is found to be admissible, the trial court may reinstate his conviction. Unlike the majority, I do not believe that case law assists in choosing between these two interpretations. Rather, the proper resolution lies in applying simple common sense.

¶ 33. First, I observe that the majority implicitly and correctly assumes that the phrase "vacate Agnello's conviction" is not the equivalent of "vacate Agnello's conviction and vacate his plea." If that were the case, the State's interpretation would not be reasonable.

¶ 34. Second, none of the cases identified by the parties or by the majority resolve the issue. In each of these cases, unlike the supreme court in Agnello, the court specified what should happen on remand if a suppression ruling was affirmed. See State v. Jiles, 2003 WI 66, ¶ 49, 262 Wis. 2d 457, 663 N.W.2d 798 ("Jiles is entitled to withdraw his guilty plea and to be granted a new and sufficient Miranda-Goodchild hearing. After this hearing, he is entitled to a trial if he so desires."); Upchurch v. State, 64 Wis. 2d 553, 564, 219 N.W.2d 363 (1974) (if, on remand, the trial court determines "the statement was made voluntarily by Upchurch, then the conviction should be reinstated. If the statement is found to be involuntary, then a new trial should be granted."); Renner v. State, 39 Wis. 2d 631, 639-40, 159 N.W.2d 618 (1968) (defendant's conviction was not vacated; trial court was directed to grant a new trial if the court determined that defendant's confession was involuntary); Bosket v. State, 31 Wis. 2d 586, 599-600, 143 N.W.2d 553 (1966) (same).

¶ 35. The majority focuses its attention on Jiles and finds it significant that Jiles, like this case, involves a conviction pursuant to a plea rather than a trial. The majority explains that Agnello and Jiles were similarly situated, and the majority "can discern no reason why the supreme court would treat such similarly situated parties differently." Majority at ¶ 27. Likewise, I can discern no reason why, in 1989, in the very same context (a faulty suppression proceeding and a plea), the supreme court treated a defendant differently than Jiles. The mandate in State v. Stevens, 217 Wis. 2d 369, 369-70, 577 N.W.2d 335 (1998), reads:

[T]he cause is remanded to the circuit court with directions to conduct a new suppression hearing to determine ... whether the police officers executing the search warrant had a reasonable suspicion based upon the particular facts of this case that exigent circumstances existed to justify dispensing with the rule of announcement; if the evidence at the new suppression [hearing] satisfies the circuit court that reasonable suspicion existed to justify the no-knock entry accomplished in this case, the circuit court should reinstate the defendant's judgment of conviction.

Although neither Stevens, nor the court of appeals' decision in that same case, State v. Stevens, 213 Wis. 2d 324, 570 N.W.2d 593 (Ct. App. 1997), explains that Stevens pled guilty, we know that to be the situation because of the briefs before the supreme court in Stevens. See Letter Brief of Plaintiff-Respondent at 3, State v. Stevens, 213 Wis. 2d 324, 570 N.W.2d 593 (Ct. App. 1997) (No. 97-0758-CR) (available in Appendices and Briefs, 213 Wis. 2d 308-363, at tab 3).

¶ 36. Accordingly, the question in my mind is this: Why should the defendant in Jiles be entitled to a trial on remand, regardless of the outcome of a new suppression hearing, when the defendants in cases such as Stevens, Upchurch, Renner, and Bosket were not granted that remedy? I cannot answer that question. I certainly cannot conclude that, when Agnello was decided in 1999, the supreme court wanted to discard a well-established pattern and instead follow an approach in a case that would be decided four years later.

¶ 37. Finding no answer in supreme court decisions, I resort to an analysis of the context in which such dispositions are ordered by appellate courts. In the typical appellate case dealing with a challenge to an order denying a defendant's motion to suppress evidence, a decision by an appellate court affirming the circuit court's suppression ruling would, if remanded, put the defendant back in the same place he was in prior to entering his plea (or the same place for purposes of the trial held). For this reason, when appellate courts reverse and remand for a new suppression hearing, they frequently do not vacate the conviction, but instead direct that, if evidence is suppressed on remand, then the defendant must be afforded an opportunity for a new trial. E.g., Renner; Bosket. In other cases, appellate courts use an alternative approach that achieves the same result: they vacate the conviction, but direct reinstatement of the conviction if the suppression ruling is reaffirmed. E.g., Upchurch. Of course, both of these approaches make perfect sense because, absent some unusual circumstance, a decision on remand affirming an earlier suppression ruling validates the propriety of the proceedings in the circuit court, whether those proceedings resulted in either a plea or a conviction after a trial.

¶ 38. It follows that, absent some additional factor or express remand language to the contrary, when the supreme court or this court vacates a conviction and remands for a new suppression hearing, neither court intends that the defendant's plea be vacated if the original suppression ruling is reached a second time. To repeat, in the typical case, a circuit court decision on remand affirming an earlier suppression ruling validates the propriety of the original conviction.

¶ 39. Agnello argues that this is not the typical case. He contends there is an additional factor here that should persuade us that the supreme court intended that his plea be vacated, regardless the result of the new suppression hearing. Agnello writes:

When Mr. Agnello entered his guilty plea, he did so believing that if he exercised his right to a trial, the answers he gave at the first Goodchild hearing, in response to the improper questioning by the prosecutor about the underlying crime, would be admissible against him at trial. Now, as a result of this Court's decision that he should never have been ordered to answer such questions, they cannot be used against him at a trial because they were involuntarily compelled by the trial court's order.

I agree with part of Agnello's assertion. When combined with other case law, the supreme court's Agnello holding, that Agnello's suppression hearing testimony was involuntary, made clear something that was not clear before the decision: that there is a strong argument that Agnello's compelled suppression hearing testimony cannot be used against him at a trial. See New Jersey v. Portash, 440 U.S. 450, 459 (1979) (" 'any criminal trial use against a defendant of his involuntary statement is a denial of due process of law'" (quoting Mincey v. Arizona, 437 U.S. 385, 398 (1978))). The question remains, however, whether the supreme court had this changed circumstance in mind when it wrote its disposition language in Agnello. I agree with the trial court on this point. The trial court stated: "There is nothing in either the majority or the dissent [in Agnello] which makes me think that any thought was given to that issue at all. ..." A review of the briefs submitted to the supreme court supports this conclusion. Nothing in the briefs suggests that Agnello advised the supreme court that a ruling in his favor regarding his suppression hearing testimony was cause for plea withdrawal, regardless of the result of a new suppression hearing. That argument was first made when Agnello returned to the circuit court.

¶ 40. Agnello now argues that he entered his plea in part because of a mistaken assumption about the admissibility of his suppression hearing testimony. However, as the State points out, this is precisely the type of issue that plea withdrawal procedures are designed to address. Agnello could have, and perhaps still should, seek plea withdrawal. Acting on a plea withdrawal motion, the circuit court would have an opportunity to determine whether there is validity to Agnello's asserted misunderstanding and that he entered his plea because of the misunderstanding.

¶ 41. Therefore, I respectfully dissent from the remand portion of the majority opinion. I would affirm the circuit court's order reinstating Agnello's conviction. If Agnello believes there are grounds for plea withdrawal, he should explore the possibility of bringing a plea withdrawal motion. I concur with the remainder of the opinion.

       In State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 264-65, 133 N.W.2d 753 (1965), the court established the procedure for a pretrial hearing on the issue of the voluntariness of a confession.

       The Hon. Elsa C. Lamelas was assigned to the case after the original judge, current Wisconsin Supreme Court Justice Diane Sykes, left the circuit court.

       The supreme court was deadlocked 3-3 on whether to affirm or reverse the judgment of the trial court, with Justice Sykes not participating.

       Agnello indicated on his guilty plea questionnaire that he has completed twelfth grade and obtained a GED.

       Agnello cites to: Darwin v. Connecticut, 391 U.S. 346, 349 (1968) (suspect detained thirty to forty-eight hours); Spano v. New York, 360 U.S. 315, 322 (1959) (eight hours); Turner v. Pennsylvania, 338 U.S. 62, 63-64 (1949) (four days); Watts v. Indiana, 338 U.S. 49, 52-53 (1949) (six days); Ashcraft v. Tennessee, 322 U.S. 143, 149 (1944) (thirty-eight hours); Ward v. Texas, 316 U.S. 547, 551 (1942) (three days); Chambers v. Florida, 309 U.S. 227, 230 (1940) (seven days); Purpura v. United States, 262 F. 473, 477 (4th Cir. 1919) (twenty-four hours); Binns v. State, 344 S.W.2d 841, 842 (Ark. 1961) (fifty-two hours); Wright v. State, 9 A.2d 253, 256 (Md. Ct. App. 1939) (twenty hours). The suspects in Spano, Turner, Chambers, Purpura, and Wright were denied counsel. In addition, in Wright, the defendant was threatened with being hit, 9 A.2d at 256; in Watts, the defendant's "rudimentary" needs for sleep and adequate food were disregarded, 338 U.S. at 53; and in Ward, the defendant was moved several times from one town to another and told there were threats of mob violence. 316 U.S. at 551, 553.

       When there is ambiguity in a trial court's judgment, we defer to that court's construction of its own language, as long as it is reasonable. Estate of Schultz v. Schultz, 194 Wis. 2d 799, 809, 535 N.W.2d 116 (Ct. App. 1995). However, in this case the trial court is in no better position than this court to construe the language of the supreme court.

       Agnello denies in his reply brief that he is now arguing that "his plea was not knowing and voluntary." But, of course, that is exactly what he is arguing. Agnello contends he entered his plea acting under a mistaken understanding of the evidence that might be used against him at trial.


author: BROWN, J.

text:
    Insurance Company of North America, Plaintiff-Respondent, Cold Spring Egg Farm, Inc., Involuntary-Plaintiff-Respondent, v. Cease Electric Inc., d/b/a Zillmer Electric and Pekin Insurance Company, Defendants-Appellants.

    Court of Appeals

      No. 03-0689.

      Submitted on briefs October 8, 2003.

      Decided December 17, 2003.

    2004 WI App 15
    (Also reported in 674 N.W.2d 886.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Monte E. Weiss and J.P. Fernandes of Weiss Law Office, S.C., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Timothy A. Bascom and Amy J. Uhlenbrauck of Bascom, Budish & Ceman, S.C., of Wauwatosa.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review granted 2-24-04.

   BROWN, J.

¶ 1. Cease Electric Inc., d/b/a Zillmer Electric and Pekin Insurance Company appeal from a judgment awarding Cold Spring Egg Farm, Inc., and Insurance Company of North America damages for losses sustained due to the failure of a ventilation system Cease Electric installed in one of Cold Spring's hen harns and double taxable costs pursuant to Wis. Stat. § 807.01(3) (2001-02). The appellants present two primary challenges to the judgment on appeal. First, the appellants argue that the trial court erred in refusing to impose sanctions against Cold Spring for its alleged spoliation of evidence. We conclude that Cold Spring's conduct does not qualify as spoliation because the record fails to demonstrate that Cold Spring knew, or should have known, at the time of the destruction of the evidence that litigation was a distinct possibility and that Cold Spring knew, or should have known, that the evidence would be relevant to such litigation. The appellants also submit that the economic loss doctrine precludes Cold Spring's recovery under any tort theory. We hold that the purpose of the transaction between Cold Spring and Cease Electric was for services and the economic loss doctrine has not been expanded to cover services. We affirm.

¶ 2. Cold Spring raises chickens to produce eggs at its egg farm. In the summer of 1996, Cold Spring hired Cease Electric to upgrade the ventilation system in one of its barns. The ventilation systems are required to bring fresh, cooler air into the barns so that the birds have sufficient oxygen to live. Cold Spring purchased new fans for the system from Aerotech, Incorporated.

¶ 3. Prior to the installation of the new ventilation system, each ventilating fan had its own individual thermostat and operated independently of all other ventilating fans. The new ventilation system was designed so that a single controller would operate all of the fans in stages. As the temperature in the barn rose, the fan control would engage different fans to bring fresh air into the barn. As the temperature in the barn fell, the controller would turn off the fans accordingly. In addition to the primary fan control, the ventilation system was designed by the manufacturer to have a backup thermostat. In its instructions, the manufacturer recommended the use of a backup thermostat as a safety device in the event that the primary fan control failed to operate. The manufacturer also recommended wiring the backup thermostat to a power source that was separate from the power source for the primary fan control. Cold Spring retained Cease Electric to install the ventilation system's component parts, including the primary fan control and the backup thermostat. Brian Cease, who passed away in December 1997, installed the main fan control unit and the backup thermostat.

¶ 4. In November 1996, Cold Spring terminated its relationship with Cease Electric. Cold Spring had become concerned that Cease Electric was not completing the projects correctly or in a timely fashion.

¶ 5. On January 8, 1997, approximately three months after Cease Electric had completed wiring the ventilation system in the barn, the ventilation system failed. As a result of this failure, approximately 17,000 chickens died.

¶ 6. On the day of the loss, Scott Hartwig, the manager of the Cold Spring operation, called Carroll Electric, a Cease Electric competitor, to the barn to respond to the situation. A1 Dittmar, one of Carroll Electric's electricians, replaced the main fan control unit as well as the backup thermostat. Hartwig recalls Dittmar giving him the former primary fan control but not the old backup thermostat. He recalls that the replaced primary fan control had been placed in the office at Cold Spring hut cannot remember what was done with the backup thermostat.

¶ 7. Within one week of the loss, Cold Spring hired Dittmar to conduct a diagnostic investigation to determine why the fans did not operate. Following an investigation, Dittmar reported to Cold Spring that he believed Cease Electric had improperly wired the ventilation system it sold to Cold Spring. Dittmar informed Hartwig that the main fan control unit was wired to the same power circuit as the backup thermostat. Thus, if the circuit breaker tripped, shutting off power to the circuit, then neither the main fan control unit nor the backup thermostat would have the power to turn on the fans. Dittmar then rewired the barn.

¶ 8. Pursuant to the insurance contract, INA paid Cold Spring $118,339.20 for the loss of income and $40,704.89 for the loss of chickens. Cold Spring itself sustained a loss of $39,761.02 due to its deductible. INA then commenced this subrogation action, naming Cold Spring as an involuntary plaintiff and Cease Electric and Pekin Insurance Company, Cease Electric's liability insurer, as defendants. In its complaint, INA alleged the failure of the ventilation system was the result of Cease Electric's negligence.

¶ 9. At some point thereafter, at a mediation, the parties stipulated to the damages in this case and filed the stipulation with the court. Apparently, the stipulated amount was for $198,805.11. Following this stipulation, Cold Spring and INA filed a joint statutory offer of settlement for $198,000.00. The offer allocated the amount as follows: $159,000.00 to INA and $39,000.00 to Cold Spring. Cease Electric presumably rejected the offer.

¶ 10. The appellants subsequently filed a motion to sanction Cold Spring for its alleged spoliation of evidence. The appellants contended that since Cold Spring had misplaced the backup thermostat, and Ditt-mar rewired the barn without documenting the miswir-ing, INA and Cold Spring should be precluded from introducing testimony concerning Dittmar's observations of the miswiring. The trial court, Judge Robert J. Kennedy presiding, concluded that Cold Spring's conduct, while regrettable, did not constitute spoliation of evidence. Shortly before the trial, Judge John R. Race, who replaced Judge Kennedy as a result of judicial rotation, again addressed the issue of spoliation. Judge Race also ruled that Cold Spring's conduct did not rise to the level of spoliation of evidence.

¶ 11. The appellants again raised the issue of spoliation of evidence at the conference on jury instructions, requesting that the court give an instruction on spoliation. The court denied their request on the grounds that they had failed to prove that the conduct of either INA or Cold Spring had risen to such a level as to warrant a spoliation instruction.

¶ 12. Following a two-day trial, the jury returned a verdict in favor of INA and Cold Spring. The trial court inserted the stipulated amount of damages into the jury verdict. The appellants moved for a judgment notwithstanding the verdict and reasserted their motions for a directed verdict at the close of evidence. They argued that INA's and Cold Spring's claims were barred by the economic loss doctrine and that they had spoliated essential evidence and, as a consequence, their claims should be dismissed as a sanction. The trial court denied the motion and entered judgment for INA and Cold Spring totaling $204,065.29. This amount represented the amount of stipulated damages, in addition to $5260.18 in double costs awarded pursuant to Wis. Stat. § 807.01(3). This appeal followed.

¶ 13. We first address the appellants' contention that the trial court applied the incorrect legal standard in refusing to sanction Cold Spring for its alleged spoliation of evidence and it therefore erroneously exercised its discretion. The appellants submit that because Cold Spring intentionally engaged in conduct resulting in the destruction of evidence that ultimately would have been helpful to it in this lawsuit, the doctrine of spoliation applies and the trial court should have sanctioned Cold Spring by dismissing Cold Spring's claims, by excluding the evidence concerning the miswiring of the barn, or by issuing a jury instruction on spoliation.

¶ 14. A response to a request for the imposition of sanctions for the destruction of evidence or the negligent failure to preserve it is a matter subject to the sound discretion of the trial court. See Sentry Ins. v. Royal Ins. Co. of Am., 196 Wis. 2d 907, 916, 539 N.W.2d 911 (Ct. App. 1995); Milwaukee Constructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis. 2d 523, 529, 502 N.W.2d 881 (Ct. App. 1993). The core issue is not whether this court, as an original matter, would have exercised its discretion in the same manner, but whether the trial court exercised its discretion free of error. We shall not find error if the trial court examined the relevant facts, applied a proper standard of law and, utilizing a demonstrated rational process, reached a conclusion that a reasonable judge could reach. See Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273, 470 N.W.2d 859 (1991).

¶ 15. Not all destruction, alteration, or loss of evidence qualifies as spoliation. In Milwaukee Constructors II, 177 Wis. 2d at 532, we adopted the process for evaluating the details, significance and sanctions concerning allegations of destruction of evidence set forth in Struthers Patent Corp. v. Nestle Co., 558 F. Supp. 747, 756 (D.N.J. 1981). Struthers instructs that in reviewing the conduct of the offending party, the trial court should consider not only whether the party responsible for the destruction of evidence knew, or should have known, at the time it destroyed the evidence that litigation was a distinct possibility, but also whether the offending party destroyed documents which it knew, or should have known, would constitute evidence relevant to the pending or potential litigation. See id. at 756, 765 (holding that the destruction of documents which the party knew, or should have known, would be relevant to a pending or potential lawsuit is sanctionable).

¶ 16. This two-part analysis makes perfect sense. The primary purpose behind the doctrine of spoliation is twofold: (1) to uphold the judicial system's truth-seeking function and (2) to deter parties from destroying evidence. Spoliation remedies advance truth by assuming that the destroyed evidence would have hurt the party responsible for the destruction of evidence and act as a deterrent by eliminating the benefits of destroying evidence. The court in Pomeroy v. Benton, 77 Mo. 64, *11 (1882), perhaps stated it best: "[t]he law, in hatred of the spoiler, baffles the destroyer, and thwarts his iniquitous purpose ... by the very means he [or she] had so confidently employed to perpetrate the wrong." Common sense dictates that the purposes of the doctrine are served only if the offending party has notice that the evidence is or is likely to be relevant to pending or foreseeable litigation and proceeds to destroy the evidence anyway.

¶ 17. Here, although the trial court did not expressly apply the Struthers analytical framework, the court clearly understood its role in assessing Cold Spring's conduct. In determining that Cold Spring's actions did not constitute spoliation, both Judge Ken-ney and Judge Race concluded that when Cold Spring authorized Dittmar — the Carroll Electric electrician called to the site on the day of the loss — to rewire the barn, its only concern was to save the remaining birds by making certain that the ventilation system did not fail again and that the thermostat, which Dittmar gave to Hartwig, disappeared long before anyone was even thinking of a lawsuit. The trial court further observed that it was not until a week later that Cold Spring conducted an investigation into why the system failed and it was only then that it discovered that Cease Electric had allegedly miswired the backup thermostat to the same power source as the primary fan control. The testimony of Hartwig, the manager of the Cold Spring operations, and Dittmar concerning the facts surrounding the loss of evidence supports these conclusions. There simply was no reason for Cold Spring, at the time the evidence of the miswiring was destroyed, to have foreseen that litigation concerning the loss was a distinct possibility let alone that the evidence would be relevant to such litigation. Given these circumstances, we conclude that the trial court properly exercised its discretion in concluding that Cold Spring's conduct did not constitute spoliation of evidence and in refusing to impose sanctions.

¶ 18. We now turn to the second argument the appellants raise on appeal — that the economic loss doctrine bars Cold Spring's tort claims. The appellants first reason that Cold Spring was the purchaser of a product, and because its losses were the result of the failure of the product to function properly, the case falls squarely within the purview of the economic loss doctrine. In the alternative, the appellants contend that even if the transaction at issue was purely for services, the economic loss doctrine applies not only to economic loss due to defective products, but also to claims of recovery for economic losses due to the negligent provision of services. In contrast, the respondents counter that Cold Spring was the purchaser of Cease Electric's services and the economic loss doctrine in Wisconsin applies only to transactions involving products, not transactions involving services. Cold Spring maintains that the damages arose out of Cease Electric's negligent workmanship, specifically, failing to wire the backup thermostat to an independent power source.

¶ 19. The economic loss doctrine is a judicially created doctrine that precludes recovery under the tort theories of negligence or strict products liability for damages that are solely "economic" in nature. Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 400, 573 N.W.2d 842 (1998). The doctrine limits the parties involved in commercial transactions to pursue only their contractual remedies when asserting such damages. The application of the economic loss doctrine to a set of facts is a question of law which we review de novo. State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 225 Wis. 2d 305, 314, 592 N.W.2d 201 (1999).

¶ 20. Before we launch into a discussion of whether the economic loss doctrine applies to service contracts, we must first determine whether the transaction involved was one for goods or one for services. The appellants argue that Cold Spring hired it to provide a new ventilation system for the barn and characterizes Cold Spring's claims as "disappointed expectations in the product's performance." The appellants mischaracterize Cease Electric's role and Cold Spring's theory of liability. Other than some wiring, we can find no evidence in the record demonstrating that Cease Electric sold any of the ventilation system's component parts to Cold Spring. The record clearly demonstrates that Cease Electric was hired to take component parts purchased from a third party and wire them into a ventilation system. Further, the respondents are not alleging that the primary fan control unit, the backup thermostat, any component parts, or any of the wires connecting the units to the power sources were defective or failed to perform as expected. Rather, they are alleging that Cease Electric's employees improperly wired the backup thermostat and failed to perform tests that would have revealed their errors. In short, Cold Spring hired Cease Electric to provide a service — the installation of the ventilation system — and claimed not that the product itself was defective, but rather, that Cease Electric negligently installed the otherwise properly functioning component parts and thus breached its professional obligation of due care.

¶ 21. Our supreme court has not yet addressed the issue of whether the economic loss doctrine covers claims of negligent provision of services. In Daanen, recognizing the distinction between cases arising out of the negligent provision of services and cases involving defective products, the court expressly reserved the issue of "whether the [economic loss] doctrine applies with equal force to damages resulting from the provision of services." Daanen, 216 Wis. 2d at 417 (footnote omitted). The court further cautioned that its past allusions to cases from other jurisdictions, which involved economic losses arising out of the provision of services, were not endorsements of an extension of the doctrine. Id. at 417 n.9. Currently, "economic loss" for the purposes of the doctrine is defined as "damage to a product itself or monetary loss caused by the defective product, which does not cause personal injury or damage to other property." Id. at 402. We are not aware of any subsequent case interpreting that definition as encompassing the provision of services.

¶ 22. The appellants contend that Digicorp, Inc. v. Ameritech Corp., 2003 WI 54, 262 Wis. 2d 32, 662 N.W.2d 652, stands for the proposition that the economic loss doctrine applies to service contracts. Digicorp cannot he read so broadly. There, the court expressly framed its holding in narrow terms, recognizing a fraud in the inducement exception to the economic loss doctrine only where the claim of fraudulent inducement is extraneous, rather than interwoven with the contract. Id., ¶ 3. Although Digicorp did arguably involve a service contract, the court did not address whether that fact was even relevant to its decision. There simply was no discussion of whether the economic loss doctrine applies to claims arising out of the negligent provision of services.

¶ 23. Our supreme court, however, has allowed purely economic damages stemming from negligence claims involving parties who predominantly provide services, such as accountants and architects. See Citizens State Bank v. Timm, Schmidt & Co., 113 Wis. 2d 376, 362, 335 N.W.2d 361 (1983); A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 486-87, 214 N.W.2d 764 (1974). Thus, for us to decide that the economic loss doctrine applies when the underlying contract is one for services rather than goods would be an expansion of the economic loss doctrine. We are primarily an error-correcting court, not a law-declaring court. See Cook v. Cook, 208 Wis. 2d 166, 188-89, 560 N.W.2d 246 (1977). The Wisconsin Supreme Court is the appropriate body to make that determination. Accordingly, we hold that the economic loss doctrine does not bar Cold Spring's claims for negligent provision of services.

¶ 24. Finally, the appellants contend that the trial court did not have the authority to exact the penalty provisions of Wis. Stat. § 807.01(3) and award Cold Spring double taxable costs. Section 807.01(3) provides that "the plaintiff may serve upon the defendant a written offer of settlement" and if the defendant rejects the offer and "the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs." The appellants claim that because the offer of settlement was made on behalf of two separate plaintiffs, it ran afoul of § 807.01(3). We can find no evidence in the record establishing that the appellants raised the issue before the trial court; the appellants direct us to none. In fact, notations .on the Bill of Costs submitted by the respondents reveal just the opposite. The Bill of Costs shows that the appellants objected to the referee's fee and the judgment filing fee, but no other costs. Issues not raised or addressed in the trial court will not be considered for the first time on appeal. Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140 (1980), superseded on other grounds by Wis. Stat. § 895.52. We, therefore, deem the issue waived and decline to address it further.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       We note that neither party properly cites to the record. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957).

       Carroll Electric is also referred to as Duck Creek Electric in the record. We will use Carroll Electric for purposes of this appeal.

       We cannot find evidence of the stipulation in the record. However, neither party disputes this fact, so we will proceed upon the assumption that the agreement took place. We observe that it is the appellant's responsibility to ensure that the record is sufficient to facilitate appellate review. See Seltrecht v. Bremer, 214 Wis. 2d 110, 125, 571 N.W.2d 686 (Ct. App. 1997).

       Arguments on the defendants' motions for a directed verdict at the close of the plaintiffs' case and at the close of all evidence were not formally heard; however, the trial court noted on the record that the defendants' arguments were preserved for appeal.

       We note that this conclusion is consistent with the established precedent of other jurisdictions. See, e.g., Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991) (refusing to allow the trier of fact to draw an adverse inference from the destruction of evidence where the offending party did not destroy the evidence in response to litigation and the party was not on notice that the evidence had potential relevance to litigation); Nat'l Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556-57 (N.D. Cal. 1987) (defendant knew or should have known that the destroyed materials were relevant and discoverable); Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984) (a party is under a duty to preserve what it knows, or reasonably should know, is relevant in the action).

       We certified the issue to the supreme court in Barr v. Premier Production Co., 2002 WL 31749954, at *1 (WI App Dec. 10, 2002) (No. 02-0688). However, the case was voluntarily dismissed and the appeal vacated before the supreme court had the opportunity to address the matter.

        See Online CouRT Records, http://www.courts.state.wi.us/global/court_records.html (provides status of cases before the supreme court).

       The appellants also pick apart the costs the trial court awarded. We choose not to address these arguments because, even if error were found, it would only be de minimus. See Preiss v. Preiss, 2000 WI App 185, ¶ 23, 238 Wis. 2d 368, 617 N.W.2d 514.