Harrison v. State

Smith, J.,

dissenting:

I would affirm.

There is no room for misunderstanding here. After Harrison’s earlier statement that he told his lawyer “all about it,” referring to his conversation with Strait, the record reflects the following on cross-examination by the State:

“MR. KOLMAN: Based on the Court’s questions, I have one other. Did you tell your attorney, Mr. Daneman, about this case?

*159 “THE WITNESS: Yes, I did.

“BY MR. KOLMAN:

“Q. About this conversation?

“A. Yes, I did.”

It thus was abundantly plain that Harrison was saying that he told his then lawyer, Mr. Daneman, about the conversation with Strait.

Public policy should militate against sustaining Harrison’s position here. What he did was to testify in his defense to a statement by a key State’s witness to him inconsistent with the testimony of that witness and thus damaging to the State’s case. When asked, he stated, without objection from his trial attorney, that he had advised his earlier attorney of this conversation. Then he objected when the earlier attorney was called for the purpose of impeaching this statement by denying that the defendant had ever advised him of such a conversation. Public policy can be read behind the statement of Judge Pattison for this Court in Shawmut Mining Co. v. Padgett, 132 Md. 397, 404 , 104 A. 40 (1918), that a witness “can not be allowed, after disclosing as much as he pleases [of a communication to an attorney], to withhold the remainder.” Shawmut was relied upon by the Court of Special Appeals.

The attorney-client privilege is intended to be a shield, not a sword. The opinion of the majority in this case turns it into a sword. Reason, the authorities, and what I regard as the better reasoned cases support my view here. The fact that Harrison testified on cross-examination does not make his testimony any less a waiver of the attorney-client privilege in the view of eminent authority. In 8 J. Wigmore, Evidence § 2327 (McNaughton rev. ed. 1961) the author rejected intention as the sole criterion for waiver of the privilege. He pointed out:

“In deciding [what constitutes a waiver by implication], regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also *160 the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.” Id. at 635-36. (Emphasis added.)

Wigmore, op. cit., § 2327, n. 3 at 637 rejects the position of the court in Foley v. Poschke, 66 Ohio App. 227 , 32 N.E.2d 858 (1940), that testimony on cross-examination cannot be considered voluntary for the purposes of a statute requiring “voluntary testimony” for waiver of the attorney-client privilege, stating, “this ruling seems incorrect since the client could have refused to testify on cross-examination by invoking the privilege.” In McCormick, Evidence § 93 (2d ed. Cleary 1972) that author also rejects the notion that failure to assert the privilege on cross-examination makes the disclosure involuntary, stating:

“Waiver includes, as Wigmore points out, not merely words or conduct expressing an intention to relinquish a known right, but conduct, such as a partial disclosure, which would make it unfair for the client to insist on the privilege thereafter.

“Of course, if the holder of the privilege fails to claim his privilege by objecting to disclosure by himself or another witness when he has an opportunity to do so, he waives his privilege as to the communications so disclosed.” Id. at 194.

* * *

“What if the client is asked on cross-examination about the communications with his lawyer, and he responds without asserting his claim of privilege? Is this a waiver? Unless there are some circumstances *161 which show that the client was surprised or misled, it seems that the usual rule that the client’s failure to claim the privilege when to his knowledge testimony infringing it is offered, would apply here, and that the decisions treating such testimony on cross-examination as being involuntary and not constituting a waiver are hardly supportable. ” Id. at 195. (Emphasis added.)

Support for the view I take here is also found in 3 Jones, Evidence § 21:22 at 804 (6th ed. S. A. Gard 1972); H. Underhill, Criminal Evidence § 333 at 840 (5th ed. 1956); and 2 Wharton, Criminal Evidence § 561 at 83 (13th ed. C. Torcia 1972). (These references do not deal specifically with cross-examination.) Wigmore, McCormick, and Wharton were cited by the Court of Special Appeals in support of its decision.

I think a correct statement of the law is found in Steen v. First Nat. Bank, 298 F. 36 (8th Cir. 1924), where the court said:

“The owner of the privilege of preventing the disclosure of confidential communications cannot, after testifying to or about them, or to or about any substantial part of them, without claiming his privilege, or objecting to testify on the ground of his privilege, invoke that privilege to prevent other parties to the communications from testifying to them. He cannot by his silence lay down the shield of his privilege, and assail another with the sword of his own testimony to the privileged communications, and, when his adversary essays to defend himself, or to attack him by his version of the testimony, or by the testimony of other parties or witnesses to such communications, again seize the shield of his privilege and shut out all testimony as to the confidential communications but his own. He has waived his privilege and ‘such waiver is in no sense contrary to public policy; indeed, it is in the interest of truth and justice.’ *162 Kelly v. Cummens, 143 Iowa 148,151,152 , 121 N.W. 540, 542 (20 Ann. Cas. 1283); McKinney v. Grand Street, etc., R. R. Co., 104 N.Y. 352, 355 , 10 N.E. 544 ; Yardley v. State, 50 Tex. Cr. R. 644 , 100 S.W. 399 , 400; Hunt v. Blackburn, 128 U. S. 464, 470 , 9 Sup. Ct. 125, 32 L.Ed. 488 ; People v. Patrick, 182 N.Y. 131 , 74 N.E. 843 ; Union Pacific R. R. Co. v. Thomas, 152 Fed. 365, 368 , 81 C. C. A. 491 ; People v. Gerold, 265 Ill. 448 , 107 N.E. 165 , Ann. Cas. 1916A, 636; Grant v. Harris, 116 Va. 642 , 82 S.E. 718, 719, 720 , Ann. Cas. 1916D, 1081; Hendrickson v. People, 10 N.Y. 13, 27, 29 , 61 Am. Dec. 721 ; People v. Molineux, 168 N.Y. 264, 333 , 61 N. E. 286 , 62 L. R. A. 193; Inhabitants of Woburn v. Henshaw, 101 Mass. 193, 200 , 3 Am. Rep. 333 ; In re Bendheim (D. C.) 180 Fed. 918, 919 ; 28 R. C. L. p. 430.

“Nor does the fact that the testimony of Mr. Boyd to the privileged communications to Mr. Crowder was given on his cross-examination upon the preliminary hearing seem to us to deprive the waiver it wrought of its efficacy. It is neither proved nor claimed that he, the bank, or the state objected to his testifying at the preliminary examination on his cross-examination upon the ground that the subject of his testimony was privileged, or on the ground that the subject of it was not germane to his testimony upon his direct examination and legitimate cross-examination thereon. The legal presumption is that the cross-examination was legitimate, germane to and warranted by the direct examination of Mr. Boyd. That is the legal presumption, and there was no offer or claim to the contrary at the trial. In this state of the case, although we are aware that there is authority to the effect that such a waiver may not arise to matters disclosed upon cross-examination on the ground that such disclosure is not a voluntary one (Burgess v. Sims Drug Co., 114 Iowa 275, 280 , 86 N.W. 307 , 54 L. R. A. 364, 84 Am. St. Rep. 359 ), we are unable to resist *163 the conclusion that the stronger reasons and the more persuasive authorities sustain the rule that the waiver extends to every disclosure of the privileged communications made in a legitimate cross-examination upon the subject-matter of the testimony given upon the direct examination.” Id. at 41-42.'

After citing 28 Ruling Case Law, Witnesses § 30 at 443 (1921), concluding with the statement, “Even a party to the action who voluntarily becomes a witness on his own behalf, and thus waives his privilege, cannot, on cross-examination, refuse to answer in reference to any matter testified to by him in his testimony in chief, on the ground that his answer would criminate him,” the court went on to say:

“Much less can a witness do so on the ground that his testimony on his legitimate cross-examination tends to disclose a privileged confidential communication against the disclosure of which he did not assert his privilege before or when he testified regarding the transaction upon either direct or cross examination. Inhabitants of Woburn v. Henshaw, 101 Mass. 193, 200 , 3 Am. Rep. 333 ; State v. Andrews, 82 Vt. 314 , 73 Atl. 586 , 137 Am. St. Rep. 1008 ; Commonwealth v. Mullen, 97 Mass. 545, 546 ; Ex parte Senior, 37 Fla. 1 , 19 South. 652 , 653, 32 L. R. A. 133; State v. Fay, 43 Iowa 651, 653 ; State v. Wentworth, 65 Me. 234, 240, 243, 246, 247 , 20 Am. Rep. 688 ; Foster v. Pierce, 11 Cush. (Mass.) 437, 439; Commonwealth v. Price, 10 Gray (Mass.) 472 , 476, 71 Am. Dec. 668 ; State v. Nichols, 29 Minn. 357, 358 , 13 N.W. 153 ; State v. K., 4 N. H. 562, 563; State v. Foster, 23 N.H. 348, 354 , 55 Am. Dec. 191 .” Id. at 42.

Willard C. Beach Air Brush Co. v. General Motors Corp., 118 F. Supp. 242 (D. N.J. 1953), aff'd 214 F. 2d 664 (3rd Cir. 1954), cited the opinion of this Court in Shawmut Mining Co., supra, stating:

“On the other hand, let us give plaintiff the *164 benefit of the remaining alternative — the consideration of Atwater’s testimony. Of course, if Atwater’s testimony is to be considered, at least insofar as the communications as to the motivation for settlement are concerned between Beach and Brown, at Brown’s office, these normally confidential communications between attorney and client are immediately divested of their privilege if Atwater, as the agent of Beach, testifies in open court as to them. This act as Beach’s agent is that of Beach, and Beach, by testifying and telling the public of these confidential communications, has turned what was once a confidence into public property. He cannot open the door to part of the facts and close it as to the remainder. 8 Wigmore, (3rd Ed.) Sec. 2327; Shawmut Mining Co. v. Padgett, 1918, 132 Md. 397 , 104 A. 40 ; Wild v. Payson, D.C.S.D.N.Y. 1946, 7 F.R.D. 495 ; Roper v. State, Sup. Ct. 1896, 58 N.J.L. 420 , 33 A. 969 .” Id. at 247. (Emphasis added.)

Knowlton v. Fourth-Atlantic Nat. Bank, 264 Mass. 181 , 162 N. E. 356 (1928), concerned a suit between an individual, Chamberlain, and a bank. Chamberlain died and Knowlton, the executrix, was substituted in his stead. Chamberlain testified on cross-examination that he told his attorney, Bailey, of a conversation with the president of the bank, which conversation was the basis of the agreement then before the court. The attorney was called as a witness on behalf of the defendants and asked by counsel for the bank, as one of the defendants, whether Chamberlain had told him that he had entered into an agreement with the bank president as outlined. The court said:

“This question was excluded, and the bank made the offer of proof, namely, that the witness if required to answer would testify that Chamberlain never did tell him the things contained in the defendant’s question, that is, that his answer would be ‘No.’ It is said in Woburn v. Henshaw, 101 Mass. 193 , at page 200: ‘The policy of the law will not *165 allow the counsel himself to make disclosures of confidential communications from his client; but if the client sees fit to be a witness, he makes himself liable to full cross-examination like any other witness’; and it was said in Gossman v. Rosenberg, 237 Mass. 122 , at page 124, ‘a voluntary witness waives every personal privilege.’ The privilege against the disclosure of confidential communications between attorney and client is personal to the client and may be waived by him. Phillips v. Chase, 201 Mass. 444, 450 . See Montgomery v. Pickering, 116 Mass. 227 ; McCooe v. Dighton, Somerset, & Swansea Street Railway, 173 Mass. 117 . The evidence was admissible. The exception argued must be sustained.” Id. at 196 .

Also see Hunt v. Blackburn, 128 U. S. 464 , 32 L. Ed. 488, 491 , 9 S. Ct. 125 (1888) (cited in Steen); Louisville & N.R.R., 115 Ala. 334, 349-50 , 22 So. 163 (1897); Tripp v. Chubb, 69 Ariz. 31, 35 , 208 P. 2d 312 (1949); People v. Ottenstror, 127 Cal.App.2d 104, 110 , 273 P. 2d 289 (1954); Key v. State, 235 Ind. 172, 174-177 , 132 N.E.2d 143 (1956); Fluty v. State, 224 Ind. 652, 659 , 71 N.E.2d 565 (1947); Oliver v. Pate, 43 Ind. 132, 142-43 (1873); Swanson v. Domning, 251 Minn. 110, 118 , 86 N.W.2d 716 (1957) (citing and quoting from Steen); Cerney v. Paxton & Gallagher Co., 83 Neb. 88, 92 , 119 N. W. 14 (1908) (“We think that, when the plaintiff testified to a conversation between himself and his attorney, he waived the privilege of such attorney, who thereupon became a competent witness to testify concerning the matters already disclosed in open court by his client. Any other rule would enable the client to use as a sword the protection which is awarded him as a shield.”); People v. Farmer, 194 N. Y. 251 , 269, 87 N. E. 457 (1919); State v. Sullivan, 230 Ore. 136 , 368 P. 2d 81 , cert. denied 370 U. S. 957 (1962); Martin v. Shaen, 22 Wash. 2d 505, 513, 156 P. 2d 681 (1945); and Bennett v. Bennett, 137 W. Va. 179, 186-87 , 70 S.E.2d 894 (1952). In the light of the majority’s reliance upon People v. Kor, 129 Cal.App.2d 436 , 277 P. 2d 94 (1955), I find of interest that McCormick, op. cit., § 93 at 194 in n. 15 states relative to *166 that case, “The decision is criticized, it seems soundly, in Note 2 U.C.L.A.L. Rev. 573.”

On the second point the Court of Special Appeals said in its unreported opinion:

“Appellant contends that there was error, prejudicial to him, in permitting Strait to testify . . . that Gary Wilson, appellant’s employer, was a dealer in narcotics ....

“Evidence by which the State sought to show activities of Gary Wilson in addition to operating the Black Orchid nightclub, and, at least by inference, activities of appellant as Wilson’s employee, were directed at showing motive for the same crime for which appellant was on trial. Evidence that Wilson was a marihuana dealer led also to cross examination of appellant on that point, and brought out that when appellant was arrested on 2 August 1970 the police found several packets of marihuana in one of his boots. The trial judge limited this phase of appellant’s cross examination to questions designed to bring out appellant’s relationship to his employer’s activities as a marihuana dealer.

“Appellant argues that all of this evidence was an attack on his character, and thus on his credibility, by showing other unrelated criminal activity.

“We held in Neam v. State, 14 Md. App. 180 (1972) that the fact of narcotics addiction could not be considered on the issue of credibility of the witness. See also Jones v. State, 17 Md. App. 504 (1973) .

“The Court of Appeals, through Chief Judge Sobeloff, said in Lowery v. State, 202 Md. 314 (1953), at 318:

‘As a general rule, it is reversible error for the prosecution to attack the character of the accused before it has been put in issue by him, *167 or to show other unrelated crimes or misconduct likely to cause prejudice against him. Dobbs v. State, 148 Md. 34 , 129 A. 275 .

‘But the rule is equally established that where the testimony shows motive or intent it is entitled to be admitted.’

“In its quest for evidence of a motive the State produced very little of any substantial weight, but failure to succeed does not affect the relevancy of the attempt. We think the evidence was relevant to motive or intent, and was admissible for that purpose. It did not become inadmissible because it may have involved overtones of character.”

The prosecutor’s attempt to show a motive for the killing was probative, just as was the case in Lowery , cited by the Court of Special Appeals. The weight of the evidence should be left to the jury. The prosecutor’s theory was neither outrageous nor ridiculous. It was his theory that Harrison was an “enforcer” in Gary Wilson’s drug trafficking operation and that he was in the process of collecting money due from the victim when the murder occurred. This would explain why the victim was holding Harrison’s arms and why the right side of the pants of the victim, including the pocket, had been ripped out.

I think in both instances the Court of Special Appeals correctly stated the law and correctly applied it to the facts of this case. Chief Judge Murphy authorizes me to say that he joins in the views here expressed as to the first point only.