Burnett v. State ( 1982 )

OPINION

CLINTON, Judge.

This is an automatic appeal¹ from a conviction for capital murder² in which the punishment assessed is death.

The sufficiency of the evidence is not challenged, and, because they are unnecessary to our disposition of appellant’s fifth ground of error, the facts constituting the offense need not be recited. We are constrained to reverse.

By her fifth ground of error, appellant contends the trial court erred by admitting a tape recorded conversation between her and James Michael Boulch, a hypnotist hired by her attorneys, over her objection that such admission was in violation of the attorney-client privilege and Article 38.10, VA.C.C.P.³

Though much of the testimony adduced upon this issue conflicts, a few things, to which we now advert, are clearly established. Appellant hired attorneys Bill Howell and Helmutt Erwing to represent her in the defense of this cause on or about October 15,1978. Thereafter, Joe Clark, an investigator in the employ of Howell and Erwing approached James Michael Boulch about hypnotizing appellant. Clark explained that appellant’s attorneys were interested in a hypnotic interview in order to refresh the memory of the client, to give them better details as to the circumstances of the offense and, specifically, to see if she could recall if there had been witnesses at the scene.

All witnesses⁴ testified it was their understandings from the beginning, that Boulch’s interview with appellant was for the purpose of assisting her attorneys in the preparation of her defense. All agreed that any communications to be made would be confidential.

On the morning of November 14, 1978, Boulch arrived at Howell’s law offices where the interview took place through the day. Boulch testified he first conducted a “rapport building” interview with appellant, in which she related what she could recall about the offense.⁵ The evidence conflicts as to how much time was spent in this endeavor, when the tape recorder was stopped and started, and exactly who was present when;⁶ but plainly, attorney Erw-ing was present through the entire interview between Boulch and appellant, conducted while the latter was under hypnosis, and also participated in the questioning. All also agree that, as Boulch prepared to depart, he was asked by Erwing or Howell to leave the tape.

According to Howell, Erwing and appellant, Boulch explained that he had brought a reel to reel tape recorder in order to tape the six or seven hour interview on a slow speed; this had avoided interruptions in taping. The attorneys agreed they only had cassette equipment and would be unable to use the large reel. Boulch told them he would re-record the interview on a cassette and turn it over to them. Howell and Erwing testified it was their understanding that Boulch would also at that time give them the original. Boulch was in a great hurry, so Howell and Erwing allowed him to leave with the tape.

Boulch testified he was not in a hurry and had already told Howell and Erwing the original tape would be his.

All agree nevertheless that Erwing called Boulch within the next couple of days solely to inquire as to whether the tape was safe. Further, when Joe Clark went by Boulch’s office a few days later to re-record the interview on a cassette, he also asked for the original tape. Boulch explained to Clark that he would have to keep the original.

The record establishes that on November 29, 1978, Boulch was served with a writ of attachment ordering his appearance before the Jefferson County Grand Jury on the next day, and his production at that time of the tape containing Boulch’s interview with appellant conducted November 14. The grand jury thereafter returned a new indictment against appellant.

At trial, the State sought to introduce a portion of the tape as State’s Exhibit No. 126.⁷ In the hearing conducted outside the jury’s presence, appellant testified she would not have submitted to the interview with Boulch but for her understanding that, as agent of her attorneys, Boulch was constrained by the same terms of confidentiality as they. She further testified that she had never given anyone permission to disseminate or otherwise disclose any part of her November 14 conversation with Boulch. Neither had appellant given permission that a written transcript be made from the tape. She claimed the attorney-client privilege as to the entire conversation.

The trial court nevertheless admitted the “pre-hypnotic” portion of the tape into evidence.

I. The Privilege

In Texas the privilege as to communications between attorney and client extends to “persons who are the media of communication between him and the client,” 61 Tex.Jur.2d 671, Witnesses, § 106; Morton v. Smith, 44 S.W. 683, 684 (Tex.Civ.App.1898). Since at least 1885 the privilege has been held to include “a witness or friend who acted with the attorney for his client,” Rosebud v. State, 50 Tex.Cr.R. 475, 98 S.W. 858, 859 (1906), following Hernandez v. State, 18 Tex.App. 134, 152-154, 51 Am.Rep. 295 (Ct.App.1885).⁸

The State would have us conclude the communications contained on the tape are not privileged, pointing to suggestions contained in the record that the “purpose” of the interview was other than to assist appellant’s attorneys in preparation of her defense. The State argues we should defer to the trial court’s determination since the mentioned suggestions raise an issue of fact. But regardless of the purpose of the session with Boulch asserted by the State after the fact, the function of such a recorded interview with an accused pretrial is self-evident. And neither of the purposes asserted by the State to have joined a fact issue is inconsistent with the function of testing the recall of appellant under hypnosis.

Whatever appellant’s lawyers had in mind when the session was arranged, introducing its fruits in evidence at trial could hardly have been a feasible idea. Hypnotic evidence is generally not admissible at a criminal trial, Greenfield v. Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974), and related Annotation, 92 ALR3d 442, and counsel is charged with that knowledge of the law. See McMann v. Richardson, supra, 397 U.S. at 771, 90 S.Ct. at 1449. From its reading of State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), the State informs us that acceptable practice prior to actual hypnosis features a recitation by the subject of a detailed account of the facts as they are recalled, exclusion of all but hypnotist and subject from the session, and making a recording of it.

Because it appears from the facts that the hypnotist hired by defense counsel here followed substantially the accepted practice, appellant’s attorneys no doubt anticipated that what the State calls the “pre-hypnotic interview,” would take place and be recorded. Since that interview preceded hypnosis, the dialogue between Boulch and appellant was not, therefore, inflicted with revealed frailties of hypnotic evidence.⁹ Thus, the parties offer various characterizations of the tape recording of the interview that went on before actual hypnosis — work product of defense counsel, personal property of the hypnotist and the like — but when all is said and done, the tape recording, as with deeds, notes, vouchers, documents and papers of a client, is the property of appellant.¹⁰ This is so because, although it is clear Boulch was acting as “agent” of her counsel, the unique services he rendered were on behalf of appellant.¹¹ Therefore, the attorney-client privilege extended to the “pre-hypnotic” interview with Boulch, and the tape recording of it. People v. Goldbach, 27 Cal.App.3d 563, 103 Cal.Rptr. 800 (1972).¹²

The tape recording Boulch was compelled by grand jury subpoena to produce was obviously incriminatory of appellant. Had the prehypnotic interview been held and recorded on her own initiative, rather than being arranged by her attorneys, the question would be whether the tape recording in her hands would be privileged from compelled production by the safeguards of the Fifth Amendment and of Article I, § 10 of our Bill of Rights against selfincrimination.¹³ If she thereafter placed the recording in the hands of her attorneys, it is whether they could be required to produce it. Fisher v. United States, supra, U.S. at 404, 96 S.Ct. at 1577.¹⁴ Here, however, her statements in the interview with Boulch were made as a communication for her attorneys, and as such “is not to be produced, whether it was made by the client by word of mouth or by writing,” 8 Wigmore, op. cit., supra, § 2307, p. 594: “Since a document which is itself a communication is within the privilege, the test is whether the document first came into existence as a part of a communication to the attorney.” The conclusion is inescapable that the recording was protected from production ordered by grand jury subpoena directed to Boulch — made by him as agent for her attorneys. Id., at 595.

II. Waiver of the Privilege

The law is “perfectly plain that the waiver [of the client-attorney privilege], like the privilege, belongs solely to the client, and not to the attorney.” 8 Wig-more (McNaughton Revision) § 2327. “Since ... it is the client who is the holder of the privilege, the power to waive it is his, and he alone, or his attorney or agent acting with his authority, may exercise this power.” E. Cleary, McCormick’s Handbook of the Law of Evidence 194 (2d ed. 1972). In Cruz v. State, 586 S.W.2d 861, 865 (Tex.Cr.App.1979), Judge Dally, speaking for a unanimous Court, reasoned thus:

“It is clear from the language of Article 38.10 that the privilege protected is personal to the client and cannot be waived solely by the attorney. The application of that view to this case is consistent with the chief purpose of the privilege, which is the promotion of communication between attorney and client unrestrained by fear that these confidences may later be revealed. * * * Nor can it be said that appellant by signing the statement after it was given to the police, had waived a privilege so vitally important to him in this case. Waiver will not be ‘lightly inferred’ and this act alone, done by appellant at the behest of attorney Hill, fails to show either an intention,, by appellant to waive his rights or a significant awareness of the nature and significance of his conduct.”

We therefore cannot agree with the State that the defense attorneys’ “disclosure” of the tape to two investigators waived the privilege;¹⁵ there is no suggestion in the record before us that this was authorized by Linda May Burnett, their client. Even if appellant had authorized the disclosure of the tape to an investigator, it still would have been privileged. Goldstein v. Great A & P Tea Co., 118 So.2d 253 (Fla.App.1960). This is because “the privilege must include all the persons who act as the attorney’s agents.” Wigmore, supra, at § 2301. The privilege extends to communications between the lawyer and “one employed by the lawyer to assist the lawyer in the rendition of professional legal services.” Uniform Rule of Evidence 502.

Accordingly, appellant’s claim of privilege before the trial court was good and valid, and the judgment of conviction must be reversed and the cause remanded.

It is so ordered.

1 . See Article 37.071(f), V.A.C.C.P.

2 . V.T.C.A. Penal Code, § 19.03, provides in part relevant to this case:

“(a) A person commits an offense if he [intentionally or knowingly causes the death of an individual] under Section 19.02(a)(1) of this code and:

(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping....”

3 .Article 38.10, V.A.C.C.P. provides:

“All other persons, except those enumerated in Articles 38.06, 38.101, and 38.11, whatever may be the relationship between the defendant and witness, are competent to testify, except that an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship.”

4 . Those witnesses being attorneys Erwing and Howell, Boulch, and, of course, Linda May Burnett. ,

5 . Boulch explained the purpose of this “rapport building session” was to offer a comparison between appellant’s memory without, then with, the aid of hypnosis.

6 . Attorneys Howell and Erwing, appellant and Boulch were present in varying combinations during the first couple of hours.

7 . That portion was the “rapport building,” prehypnotic interview.

8 . And axiomatic in the constitutional proposition that “defendants facing felony charges are entitled to the effective assistance of competent counsel,” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), is the very practical consideration that the criminal defense lawyer controls the progress of a case — including the employment of investigators or other agents — while the client confronts only three personal decisions: his plea to the charge, whether to be tried by a jury and whether to testify in his own behalf. See view of the Chief Justice when in 1969, as a United States Circuit Judge, he discussed the respective roles of the accused and his counsel at 5 CrL 2161, 2162; Sapata v. State, 574 S.W.2d 770, 771 (Tex.Cr.App.1978); see also King v. State, 631 S.W.2d 486, 501, n. 29 (Tex.Cr.App.1982); and State Bar of Texas, Rules and Code of Professional Responsibility, EC 7-7 (1972).

9 . “Most experts agree that hypnotic evidence is unreliable because a person under hypnosis can manufacture or invent false statements, [citing authorities] A person under a hypnotic trance is also subject to heightened suggestibility. McCormick, Law of Evidence, § 208 at 510 [2nd ed. 1972],” Greenfield v. Commonwealth, supra, 92 ALR3d at 439. See also People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (Cal.Sup.Ct.1982) in which it was observed: “Beyond any doubt ... at the present time the use of hypnosis to restore the memory of a potential witness is not generally accepted as reliable by the relevant scientific community.”

10 . Thus, Disciplinary Rule 2-110(A)(2) directs the lawyer who withdraws from employment to deliver “to the client all papers and property to which the client is entitled;” Ethical Consideration 4-6 contemplates that a lawyer who terminates his practice “might provide for the personal papers of the client to be returned to him.” While in his possession, however, the practicing lawyer has a passive common law lien on papers and other property of the client, but he may not sell to foreclose his lien since it extends only to the right to retain property of the client until the debt is paid. Thomson v. Findlater Hardware Co., 156 S.W. 301, 303 (Tex.Civ.App.—Austin, 1913) and on certified question, 109 Tex. 235, 205 S.W. 831, 832 (1918), quoting approvingly from Mechem on Agency: “An attorney has a general lien upon all the papers, deeds, vouchers, and other documents of his client, which come into the possession of the attorney while he is acting for his client in a professional capacity. * * * ”

11 . The dissenting opinion cites Wigmore on Evidence, § 2301, but it turns the meaning of what the treatise actually states. Thus, the dissent would have it that the privilege “protects communications to the attorney’s agents who are indispensable to the communication between the attorney and client,” whereas Wig-more says, “The assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney’s agents.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

12 . The privilege attaches to confidential communications made by an accused to a psychiatrist serving as consultant to defense counsel. On the civil side in Texas, even a statement made by a person to a claims adjuster for his insurance company, meant to be delivered to its attorney, is privileged. Gass v. Baggerly, 332 S.W.2d 426, 430 (Tex.Civ.App.—Dallas 1960).

13 . See Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976): “It is also clear that the Fifth Amendment ... applies only when the accused is compelled to make a testimonial communication that is incriminating,” id., at 408, 96 S.Ct. at 1579 (original emphasis), and as “private papers” the holding of Boyd v. United States, 116 U.S. 616, 634-635, 6 S.Ct. 524, 534-535, 29 L.Ed. 746 (1886); that would bear on whether appellant could be compelled to produce the tape recording. Fisher v. United States, supra, U.S. at 414, 96 S.Ct. at 1582.

14 . The rule is excerpted from 8 Wigmore (McNaughton Revision) § 2307, p. 592, vj'z: “It follows, then, that when the client himself would be privileged from production of the document, either as a party at common law ... or as exempt from self-incrimination, the attorney having possession of the document is not bound to produce.” (original emphasis)

15 . The dissent points to the fact that attorney Erwing admitted turning his cassette copy of the tape over to David Lee Salmon, an investigator, so that it could be tested and transcribed. What is deleted, however, is the fact that this occurred after the privilege had been violated by Boulch’s forced production of the original before the grand jury; thus, the original tape was in the possession of the prosecutors at that time. And during the suppression hearing, the trial court agreed with defense counsel that the State’s repeated refusal to produce the tape on the defense’s request, had been in violation of his discovery order.

Clearly then, the only way for the defense to determine the content of the tape, was to have an expert transcribe the cassette copy which was described by all asked to do so, as “mangled” and of such “poor quality” as to be unintelligible to an untrained ear.

The other investigator referenced is Joe Clark, who plainly had been assisting counsel in preparing appellant’s defense from the beginning.