People v. Meredith

• Decision Date: 20 July 1981
• Docket Number: Cr. 21291
• Citation: 29 Cal.3d 682,175 Cal.Rptr. 612,631 P.2d 46
• Parties: , 631 P.2d 46 The PEOPLE, Plaintiff and Respondent, v. Michael MEREDITH et al., Defendants and Appellants.
• Court: California Supreme Court

Page 612

175 Cal.Rptr. 612

29 Cal.3d 682, 631 P.2d 46

The PEOPLE, Plaintiff and Respondent, v. Michael MEREDITH et al., Defendants and Appellants.

Cr. 21291.

Supreme Court of California.

July 20, 1981.

As Modified on Denial of Rehearing Aug. 19, 1981.

John T. Ketelsen, Sacramento, under appointment by the Supreme Court, Quin Denvir and Paul Halvonik, State Public Defenders, Gary S. Goodpaster, Chief Asst. State Public Defender, Richard E. Shapiro and Ezra Hendon, Deputy State Public Defenders, and Raul A. Ramirez, Sacramento, under appointments by the Court of Appeal, for defendants and appellants.

David Michael Bigeleisen, San Francisco, as amicus curiae for defendant and appellant Scott.

George Deukmejian and Evelle J. Younger, Attys. Gen., Robert H. Philibosian and Jack R. Winkler, Chief Asst. Attys. Gen., Arnold O. Overoye, Asst. Atty. Gen., Marjory Winston Parker, Joel Carey, J. Robert Jibson and John R. Duree, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Stanley M. Roden, Dist. Atty., Santa Barbara, and Gerald McC. Franklin, Deputy Dist. Atty., as amici curiae for plaintiff and respondent.

TOBRINER, Justice.

Defendants Frank Earl Scott and Michael Meredith appeal from convictions for the first degree murder and first degree robbery of David Wade. Meredith's conviction rests on eyewitness testimony that he shot and killed Wade. Scott's conviction, however, depends on the theory that Scott conspired with Meredith and a third defendant, Jacqueline Otis, to bring about the killing and robbery. To support the theory of conspiracy the prosecution sought to show the place where the victim's wallet was found, and, in the course of the case this piece of evidence became crucial. The admissibility of that evidence comprises the principal issue on this appeal.

At trial the prosecution called Steven Frick, who testified that he observed the victim's partially burnt wallet in a trash can behind Scott's residence. Scott's trial counsel then adduced that Frick served as a defense investigator. Scott himself had told his former counsel that he had taken the victim's wallet, divided the money with Meredith, attempted to burn the wallet, and finally put it in the trash can. At counsel's request, Frick then retrieved the wallet from the trash can. Counsel examined the wallet and then turned it over to the police.

The defense acknowledges that the wallet itself was properly admitted into evidence. The prosecution in turn acknowledges that the attorney-client privilege protected the conversations between Scott, his former counsel, and counsel's investigator. Indeed the prosecution did not attempt to introduce those conversations at trial. The issue before us, consequently, focuses upon a narrow point: whether under the circumstances of this case Frick's observation of the location of the wallet, the product of a privileged communication, finds protection under the attorney-client privilege.

This issue, one of first impression in California, presents the court with competing policy considerations. On the one hand, to deny protection to observations arising from confidential communications might chill free and open communication between attorney and client and might also inhibit counsel's investigation of his client's case. On the other hand, we cannot extend the attorney-client privilege so far that it renders evidence immune from discovery and admission merely because the defense seizes it first.

Balancing these considerations, we conclude that an observation by defense counsel or his investigator, which is the product of a privileged communication, may not be admitted unless the defense by altering or removing physical evidence has precluded the prosecution from making that same observation. In the present case the defense investigator, by removing the wallet, frustrated any possibility that the police might later discover it in the trash can. The conduct of the defense thus precluded the prosecution from ascertaining the crucial fact of the location of the wallet. Under these circumstances, the prosecution was entitled to present evidence to show the location of the wallet in the trash can; the trial court did not err in admitting the investigator's testimony.

The other contentions presented by Scott, and all contentions raised by codefendant Meredith, were fully addressed in the Court of Appeal opinion. We affirm the convictions, as modified, for the reasons stated in that opinion.

We first summarize the evidence other than that relating to the discovery and location of the victim's wallet. Our summary is based upon the testimony of Jacqueline Otis ¹ and Laurie Ann Sam, the key prosecution witnesses, upon the statement given the police by defendant Scott, and upon Scott's trial testimony.

On the night of April 3, 1976, Wade (the victim) and Jacqueline Otis, a friend of the defendants, entered a club known as Rich Jimmy's. Defendant Scott remained outside by a shoeshine stand. A few minutes later codefendant Meredith arrived outside the club. He told Scott he planned to rob Wade, and asked Scott to go into the club, find Jacqueline Otis, and ask her to get Wade to go out to Wade's car parked outside the club.

In the meantime, Wade and Otis had left the club and walked to a liquor store to get some beer. Returning from the store, they left the beer in a bag by Wade's car and reentered the club. Scott then entered the club also and, according to the testimony of Laurie Ann Sam (a friend of Scott's who was already in the club), Scott asked Otis to get Wade to go back out to his car so Meredith could "knock him in the head."

When Wade and Otis did go out to the car, Meredith attacked Wade from behind. After a brief struggle, two shots were fired; Wade fell, and Meredith, witnessed by Scott and Sam, ran from the scene.

Scott went over to the body and, assuming Wade was dead, picked up the bag containing the beer and hid it behind a fence. Scott later returned, retrieved the bag, and took it home where Otis and Meredith joined him. ²

We now recount the evidence relating to Wade's wallet, basing our account primarily on the testimony of James Schenk, Scott's first appointed attorney. Schenk visited Scott in jail more than a month after the crime occurred and solicited information about the murder, stressing that he had to be fully acquainted with the facts to avoid being "sandbagged" by the prosecution during the trial. In response, Scott gave Schenk the same information that he had related earlier to the police. In addition, however, Scott told Schenk something Scott had not revealed to the police: that he had seen a wallet, as well as the paper bag, on the ground near Wade. Scott said that he picked up the wallet, put it in the paper bag, and placed both behind a parking lot fence. He also said that he later retrieved the bag, took it home, found $100 in the wallet and divided it with Meredith, and then tried to burn the wallet in his kitchen sink. He took the partially burned wallet, Scott told Schenk, placed it in a plastic bag, and threw it in a burn barrel behind his house.

Schenk, without further consulting Scott, retained Investigator Stephen Frick and sent Frick to find the wallet. Frick found it in the location described by Scott and brought it to Schenk. After examining the wallet and determining that it contained credit cards with Wade's name, Schenk turned the wallet and its contents over to Detective Payne, investigating officer in the case. Schenk told Payne only that, to the best of his knowledge, the wallet had belonged to Wade.

The prosecution subpoenaed Attorney Schenk and Investigator Frick to testify at the preliminary hearing. When questioned at that hearing, Schenk said that he received the wallet from Frick but refused to answer further questions on the ground that he learned about the wallet through a privileged communication. Eventually, however, the magistrate threatened Schenk with contempt if he did not respond "yes" or "no" when asked whether his contact with his client led to disclosure of the wallet's location. Schenk then replied "yes," and revealed on further questioning that this contact was the sole source of his information as to the wallet's location.

At the preliminary hearing Frick, the investigator who found the wallet, was then questioned by the district attorney. Over objections by counsel, Frick testified that he found the wallet in a garbage can behind Scott's residence.

Prior to trial, a third attorney, Hamilton Hintz, was appointed for Scott. Hintz unsuccessfully sought an in limine ruling that the wallet of the murder victim was inadmissible and that the attorney-client privilege precluded the admission of testimony concerning the wallet by Schenk or Frick.

At trial Frick, called by the prosecution, identified the wallet and testified that he found it in a garbage can behind Scott's residence. On cross-examination by Hintz, Scott's counsel, Frick further testified that he was an investigator hired by Scott's first attorney, Schenk, and that he had searched the garbage can at Schenk's request. Hintz later called Schenk as a witness: Schenk testified that he told Frick to search for the wallet immediately after Schenk finished talking to Scott. Schenk also stated that Frick brought him the wallet on the following day; after examining its contents Schenk delivered the wallet to the police. Scott then took the stand and testified to the information about the wallet that he had disclosed to Schenk.

The jury found both Scott and Meredith guilty of first degree murder and first degree robbery. It further found that Meredith, but not Scott, was armed with a deadly weapon. Both defendants appeal from their convictions.

Defendant Scott concedes, and we agree, that the wallet itself was admissible in evidence. Scott maintains, however, that Evidence Code section 954 bars the testimony of the investigator concerning the location of the wallet. We...