# Rubin v. State

> Court of Appeals of Maryland · March 6, 1992 · 325 Md. 552

URL: https://www.frixlaw.com/law-library/cases/9718243

## Case

- **Full name:** Lisa Joyce RUBIN v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** March 6, 1992
- **Citations:** 325 Md. 552; 602 A.2d 677; 1992 Md. LEXIS 33
- **Precedential status:** Published
- **Opinion:** Concurrence by McAULIFFE
- **Judges:** Murphy, Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, Bell
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718243

## How later opinions describe it (automated extraction)

- finding the admission of testimony that should have been excluded harmless beyond a reasonable doubt because of overwhelming evidence of guilt, including unchallenged forensic evidence refuting the appellant's self-defense defense
- stating that, “ “with respect to errors of law generally, an appellate court may in its discretion in an exceptional case take cognizance of plain error even though the matter was not raised in the trial court.’ ”
- noting that “as the cases hold with respect to errors of law generally, an appellate court may in its discretion in an exceptional case take cognizance of plain error even though the matter was not raised in the trial court”
- explaining that “[t]he unobjected-to, improper argument in the case before us does not rise to the level of the deprivation of a fair trial

## Opinion text

McAULIFFE, Judge,
concurring.
I disagree with the Court’s holding in Part II B that it was error to admit evidence of the presence of .22-caliber bullets in Rubin’s purse shortly after the shooting. If we assume Leopold’s observations of the contents of the Rubin’s purse were subject to the protection of the attorney-client privilege, they are also subject to the concomitant ethical obligations of disclosure by virtue of the change in condition of the evidence.
After an excellent discussion of the perplexing problems created by an attorney’s receipt of tangible evidence from a client, and after seemingly accepting the principles set forth in People v. Meredith, 29 Cal.3d 682 , 175 Cal.Rptr. 612 , 631 P.2d 46 (1989), the Court concludes that the attorney may with impunity destroy significant evidentiary value flowing from the relative location of those objects one to the other by altering their position before surrendering them. I disagree.
The principal significance of the .22-caliber bullets is that they were located in Rubin’s purse when that purse was given by the client to the attorney or to the attorney’s investigative agents. Assuming, as a majority of the cases seem to hold, that the privilege would have prevented Longest from telling the State he had gotten the purse from Rubin, the privilege would not have protected the disclosure of other relevant information. Longest would have been required to inform the State, at the time he surrendered the *590 tangible property, of the condition it was in when received, i.e., that the baggie containing six .22-caliber bullets was within the purse.
[W]henever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question. We thus view the defense decision to remove evidence as a tactical choice. If defense counsel leaves the evidence where he discovers it, his observations derived from privileged communications are insulated from revelation. If, however, counsel chooses to remove evidence to examine or test it, the original location and condition of that evidence loses the protection of the privilege.
People v. Meredith, supra, 175 Cal.Rptr. at 620 , 631 P.2d at 54 (footnote omitted; emphasis added).
Longest would also have been required to disclose the location where he or his agents took possession of the purse, and the date and time of that possession. The State would then have been permitted to place before the jury the tangible objects, together with information that on a particular date and at a particular time and location the purse was present and the bullets were within the purse. 1 The State would have been required to tie the purse to Rubin, but if this could have not been done by the contents of the purse, Leopold could have testified concerning non-privi *591 leged observations he made of Rubin and the purse before Longest arrived on the scene.
There is a fine and delicate balance to be struck here between two very important principles: the attorney-client privilege on the one hand, and the high ethical obligation of an attorney on the other hand. Neither the client nor the attorney should be permitted to hide or alter evidence of criminal activity by the simple expedient of delivering it to the attorney. If the Court is correct in the instant case, however, an attorney may successfully destroy the evidentiary value of the .22-caliber bullets by separating them from the purse in which he received them. I think it entirely reasonable, in an attempt to fairly accommodate both principles, to permit the introduction of evidence that the attorney is required to promptly disclose to the State. For this purpose, we should consider to have been done that which should have been done.
CHASANOW, J., joins in this opinion.
. Precisely how such information is presented to a jury is, of course, a problem calling for careful consideration by the trial judge. The "location," for example, might best be described as the area of Olney, rather than by the name of the hospital. The preferred solution for the presentation of such evidence is probably a stipulation, to the form of which the defendant's trial counsel could agree while still preserving an objection as to privilege. Alternatively, the trial judge might approve a statement of evidence which the prosecutor could read to the jury, perhaps accompanied by instructions from the court that the statement is to be received by the jury as evidence. I have not endeavored to exhaust the possible options — the goal is simply to place before the jury, in some form in which the jury understands the information to be evidence, the factual information that is not privileged.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718243. Public record. Not legal advice.