Grabert v. State

Thompson, J.,

delivered the opinion of the Court.

On June 15, 1973, Charles F. Grabert, appellant, was convicted for possessing and selling LSD on September 15, 1972 and for possessing and selling cocaine on June 30, 1972. Although the cases were not formally consolidated, they were consecutively tried on the same day before Judge Joseph A. Mattingly, sitting without a jury in the Circuit Court for St. Mary’s County. A single opinion covering both cases was filed. Upon motion by the State, the appeals were formally consolidated in this Court. Both cases present the contention that the State unconstitutionally interfered with the appellant’s right to counsel at his respective trials.

During the course of the trials, it developed that the appellant, along with four others including John Lawrence Orgel, an undercover agent working with St. Mary’s County Sheriff’s Office, were arrested on several marijuana charges which arose out of a raid on September 11, 1972. On September 12, the day after the raid, all of the defendants gathered in the office of attorney Charles A. Norris. Mr. Orgel admitted going to Mr. Norris’s office pursuant to an agreement among the five to retain the same lawyer to represent them. Mr. Orgel further testified that he went to the office reluctantly and only to preserve his cover; and that he was not directed to go there by any official. Indeed, the statements of counsel show that when the intrusion was brought to th^, attention of the State’s Attorney all of the charges resulting from the marijuana raid were promptly dismissed. Mr. Orgel testified not only that he went to the office reluctantly but that he arrived late, stayed for only twenty minutes and left. He did admit that while he was there there was some discussion as to the nature of the defense to the marijuana charges; but he testified affirmatively that no evidence was obtained from the conference that was used in the prosecution of the instant cases. He testified, moreover, that the arrests and purchases in the present cases were not the result of any information obtained from his being in Mr. Norris’s office. No other witness testified concerning what transpired in Mr. Norris’s office.

Other testimony in the case established that Mr. Grabert sold cocaine to Mr. Orgel on June 30, 1972; and that he sold LSD to Mr. Orgel and Cynthia Conley, another undercover agent, on September 15, 1972.

To support his argument that his right to counsel was unconstitutionally infringed, appellant relies on Caldwell v. United States, 92 U. S. App. D. C. 355, 205 F. 2d 879, 881 (1953) ¹ and Coplon v. United States, 89 U. S. App. D. C. 103, 191 F. 2d 749, 759 (1951). In those cases, the appellants were awarded new trials on the basis that they had been denied the effective assistance of counsel and due process. In both cases, the government availed itself of information by the surreptitious intrusion of its agents into conferences between the accused and his counsel. The Court laid down the broad rule that any invasion into the right privately to communicate between an accused and his attorney would result in vacation or reversal of the conviction. The Supreme Court, however, in Hoffa v. United States, 385 U. S. 293, 87 S. Ct. 408, 17 L.Ed.2d 374 (1966), limited the broad language of Coplon and Caldwell to their facts which involved “government intrusion of the grossest kind upon the confidential relationship between the defendant and his counsel.” Id. at 306, 87 S. Ct. at 416.

In McClelland v. State, 4 Md. App. 18, 240 A. 2d 769 (1968), cert. denied, 395 U. S. 914, this Court reviewed the Caldwell and Coplon cases, as construed in Hoffa, together with all cases which bore upon this subject and, in the absence of a gross invasion, held:

“We conclude that an intrusion into an attorney-defendant relationship, even if improper, does not, in itself, bar prosecution. Nor does it vitiate a conviction unless it so taints the trial at which the conviction was obtained as to render that trial unfair to the defendant.” Id. at 28.

We find subsequent cases are in accord with our holding: United States v. Arroyo, 494 F. 2d 1316, 1322-23 (2d Cir. 1974); United States v. Rosner, 485 F. 2d 1213, 1225 (2d Cir. 1973); United States v. Mosca, 475 F. 2d 1052, 1061 (2d Cir. 1973), cert. denied, 93 S. Ct. 3003; United States v. Brown, 484 F. 2d 418, 424-25 (5th Cir. 1973); Manuel v. Salisbury, 446 F. 2d 453, 456-57 (6th Cir. 1971). Compare, however, the earlier case of Washington v. Cory, 62 Wash. 2d 371, 382 P. 2d 1019, 5 A.L.R.3d 1352 (1963).

It is apparent that in the instant case there was no evidence to show that the undercover agent in any way intruded into a conversation between the appellant and his counsel concerning the two trials presently under consideration. The poor judgment evidenced by the undercover agent in attending the conference in the lawyer’s office was promptly disavowed by the prosecutor when he dismissed the charges about which the conference was involved. We reiterate the rule laid down by this Court in McClelland that, absent a gross invasion, where the record shows there to be an intervention into conferences between an accused and his counsel, there must be a showing of prejudice to overturn a subsequent conviction. The intrusion in the instant case was minimal and we are impressed by the State’s promptness in revealing to the accused and his counsel the true status of the undercover agent. There was, of course, a complete absence of prejudice in the cases actually tried.

Judgments affirmed.

Appellant to pay the costs.

1 . Caldwell’s conviction, upon retrial, was affirmed. Caldwell v. United States, 95 U. S. App. D. C. 35, 218 F. 2d 370 (1954), cert. denied, 349 U. S. 930, 75 S. Ct. 773.