State v. Doster, 21399
| Decision Date | 04 March 1981 |
| Docket Number | No. 21399,21399 |
| Citation | 284 S.E.2d 218,276 S.C. 647 |
| Parties | The STATE, Respondent, v. Fred Lee DOSTER, Appellant. |
| Court | South Carolina Supreme Court |
Howard B. Hammer, of Hammer & Bernstein, Columbia, for appellant.
Atty. Gen., Daniel R. McLeod, Asst. Attys. Gen., Kay G. Crowe and Russell D. Ghent, and Sol., James C. Anders, Columbia, for respondent.
Fred Lee Doster appeals his conviction for conspiracy to possess and distribute marijuana and possession with intent to distribute marijuana.
In mid-November of 1978, Norman Shumard of the Federal Drug Enforcement Administration had a series of meetings with one George Anderson, an unpaid, non-police, confidential informant. On November 27, Shumard had Anderson come by the local DEA office in Columbia to telephone the contact Anderson claimed to have in a marijuana operation. Anderson consented to having the telephone conversation recorded. Testimony at trial subsequently revealed that the number dialed was that of Doster's motel and residence. Shumard identified the voice on the telephone, as recorded, as that of Doster. The conversation concerned plans for a meeting to have 100 pounds of marijuana delivered for a payment of $30,000.
The next evening Shumard met Anderson and Doster at Owens Field Airport in Columbia. Shumard's cover story was that he was purchasing the marijuana for delivery to New York. The three went to a remote area in the airport where Shumard had an aircraft ostensibly waiting. Doster was shown a "flash roll" of money. Apparently satisfied, Doster, according to Shumard, instructed Anderson to go back to "the place" and transfer the marijuana from another car and then come back.
Other law enforcement agents assigned to the case had Anderson under surveillance from the time he left the airport. They testified that Anderson drove towards Lexington but exited on a dirt road off the ramp between Highway 378 and Interstate 20. After a few minutes, the Anderson car emerged followed closely by another vehicle. The other vehicle followed Anderson's car all the way back to Owens Field and parked within one hundred yards of the rendezvous point.
Anderson, upon his return, opened the trunk of his car and thereby revealed two plastic and paper covered bales and one plastic bag containing approximately 100 pounds of marijuana. Shumard immediately arrested Doster. Other agents in the area then apprehended the driver of the second vehicle, identified as Michael Wayne Doster, the 19 or 20 year old son of the appellant. Search of the second vehicle turned up a loaded handgun and, in the trunk, a plastic bag with marijuana in it as well as marijuana residue scattered about the trunk.
During the course of the trial, counsel for appellant expressed an intent to pursue an entrapment defense. Counsel informed the trial court that the defense hoped to demonstrate that Anderson concocted the entire marijuana scheme in an effort to ensnare Doster and thus accomplish some sort of vengeance on him. The matter was complicated by the fact that Anderson was deceased at time of trial.
We are not concerned here with the relative merits of the substantive defense. Our focus is instead upon the propriety of a ruling of the trial judge which appellant Doster alleges blocked his presentation of the entrapment defense and thus denied him a fair trial.
During a hearing held out of the presence of the jury, the defense called Jimmy W. Grimes, an attorney whom Anderson had consulted with. The defense wished to question Grimes concerning matters related to him by Anderson. Grimes, before testifying, stated that what he was going to be called upon to testify on was within the attorney-client privilege.
The attorney-client privilege has long been recognized in this State. The privilege is based upon a public policy that the best interest of society is served by promoting a relationship between the attorney and the client whereby utmost confidence in the continuing secrecy of all confidential disclosures made by the client within the relationship is maintained. The privilege belongs to the client and, unless waived by him, survives even his death. South Carolina State Highway Department v. Booker, 260 S.C. 245, 195 S.E.2d 615 (1973). Generally, the party asserting the privilege must raise it. State v. Love, S.C., 271 S.E.2d 110 (1980).
Many jurisdictions strictly construe the privilege. 81 Am.Jur.2d Witnesses § 174, at 210. The reasoning behind the strict construction is that evidence excluded under the privilege is not necessarily incompetent. See generally, McCormick, Handbook of the Law of Evidence, §§ 87, et seq. (2d Ed. 1972).
We agree that the privilege must be tailored to protect only confidences disclosed within the relationship. The essential elements giving rise to the privilege were stated by Wigmore to be:
"(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived." 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961)
Not every communication within the attorney and client relationship is privileged. The public policy protecting confidential...
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...the Fellerman court interpreted the term "fraud" as almost boundless, other courts have been more cautious. In State v. Doster, 276 S.C. 647, 284 S.E.2d 218, 220 (1981), the South Carolina Supreme Court explained that "the privilege does not extend to communications in furtherance of crimin......
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