State v. Quattlebaum

• Citation: 338 S.C. 441,527 S.E.2d 105
• Decision Date: 24 January 2000
• Docket Number: No. 25051.,25051.
• Parties: The STATE of South Carolina, Respondent, v. Robert Joseph QUATTLEBAUM, Appellant.
• Court: United States State Supreme Court of South Carolina

338 S.C. 441

527 S.E.2d 105

The STATE of South Carolina, Respondent, v. Robert Joseph QUATTLEBAUM, Appellant.

No. 25051.

Supreme Court of South Carolina.

Heard November 30, 1999.

Decided January 24, 2000.

Assistant Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, of Columbia; and Joseph M. McCulloch, Jr., of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Robert E. Bogan, of Office of the Attorney General, of Columbia; and Solicitor Donald V. Myers, of Lexington, for respondent.

BURNETT, Justice:

Appellant was convicted of murder, first degree burglary, armed robbery, assault and battery with intent to kill, and possession of a firearm during the commission of a violent crime. He was sentenced to death. We reverse.

FACTS

Appellant voluntarily presented himself to the Lexington County Sheriff's Department on May 29, 1995, for questioning concerning his involvement in a murder, armed robbery, and assault which took place earlier that day. He agreed to take a polygraph examination. After administering the examination, the detective left appellant in the polygraph room and returned to his own office. A video camera in the polygraph room fed into the detective's office. Appellant's attorney joined appellant in the polygraph room. While appellant and his attorney conferred, several sheriffs officers and a deputy solicitor were present in the detective's office where the privileged conversation between appellant and his attorney was monitored and recorded. Several of the detectives present testified at appellant's trial that when one of the detectives asked the deputy solicitor, "Can we use this?," the deputy solicitor replied, "I'm not sure, but if we do, it will be an interesting Supreme Court case." The fact of the eavesdropping and the existence of the videotape were not revealed to appellant or his attorneys for two years.

Appellant was subsequently arrested and indicted. While in jail awaiting trial, appellant made incriminating statements to a cellmate who testified against him at trial. The deputy solicitor who participated in the eavesdropping was an active participant in appellant's trial and gave the closing argument in the guilt phase of the trial. The jury convicted appellant and recommended a sentence of death. This appeal follows.

ISSUES

I. Did the trial judge err in refusing to disqualify the Eleventh Circuit Solicitor's Office from prosecuting appellant?

A. Was appellant's Sixth Amendment right to counsel violated?

B. Should the solicitor's office have been disqualified to protect the integrity of the judicial system?

II. Did the trial judge err in refusing to allow appellant to impeach law enforcement witnesses with their participation in the videotaping?

III. Did the trial judge err in ruling appellant's cellmate was not a government agent at the time appellant made incriminating statements to him?

IV. Did the trial judge err in refusing to allow appellant to call the solicitor and deputy solicitor to testify?

V. Did the trial judge err in admitting evidence drugs were mailed to appellant at the detention center?

DISCUSSION

I. Did the trial judge err in refusing to disqualify the Eleventh Circuit Solicitor's Office from prosecuting appellant?

Appellant contends the trial court erred in refusing to disqualify the solicitor's office from prosecuting him after a deputy solicitor participated in the videotaping of appellant's conversation with his attorney. Appellant makes two arguments for disqualification. First, he argues his Sixth Amendment right to counsel¹ was violated when investigators and the deputy solicitor eavesdropped on his conversation with his attorney, and disqualification of the solicitor's office is an appropriate remedy for the violation. Second, he argues the solicitor's office should have been disqualified because the deputy solicitor's misconduct and his subsequent participation in appellant's trial was an affront to the integrity of the judicial system. We agree with each of these contentions.

A. Was appellant's Sixth Amendment right to counsel violated?

Appellant argues his Sixth Amendment right to counsel was violated and the solicitor's office should have been disqualified as a result. We agree.²

The Sixth Amendment right to counsel protects the integrity of the adversarial system of criminal justice by ensuring that all persons accused of crimes have access to effective assistance of counsel for their defense. The right is grounded in "the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense." United States v. Levy, 577 F.2d 200, 209 (3d Cir.1978). Although the Sixth Amendment right to counsel is distinguishable from the attorney-client privilege, the two concepts overlap in many ways. The right to counsel would be meaningless without the protection of free and open communication between client and counsel. See id. The United States Supreme Court has noted that "conferences between counsel and accused ... sometimes partake of the inviolable character of the confessional." Powell v. Alabama, 287 U.S. 45, 61, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

In 1932, the United States Supreme Court declared the Sixth Amendment applicable to the states through the due process clause of the Fourteenth Amendment. Id. However, South Carolina had recognized the fundamental nature of the right to counsel as early as 1731. See id. ("[I]n South Carolina, the original Constitution of 1776 did not contain the provision as to counsel, but it was provided as early as 1731 that every person charged with treason, murder, felony, or other capital offense, should be admitted to make full defense by counsel learned in the law.") (citing Act of August 20, 1731, § XLIII, Grimke, S. Car. Pub.Laws, 1682-1790, p. 130).

This is, fortunately, a case of first impression in South Carolina. Never before have we addressed a case involving deliberate prosecutorial intrusion into a privileged conversation between a criminal defendant and his attorney. Federal jurisprudence in this area is decidedly ambiguous, and we have found no precedent dealing with a prosecutor deliberately eavesdropping on an accused and his attorney.

In the 1950s and 1960s, when first faced with cases involving government eavesdropping on attorney-client conversations, federal courts refused to examine either the government's motives or the degree of prejudice to the defendant. Note, Government Intrusions Into the Defense Camp: Undermining the Right to Counsel, 97 Harv.L.Rev. 1143, 1146 (1984). Over time, the rule that began to emerge would have required either a showing of deliberate prosecutorial misconduct or prejudice, but not both. See State of South Dakota v. Long, 465 F.2d 65 (1972)

("It is certainly true that where there is gross misconduct on the part of the Government, no prejudice need be shown.") (citing Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966),

O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967),

Caldwell v. United States, 205 F.2d 879 (D.C.Cir.1953),

Coplon v. United States, 191 F.2d 749 (D.C.Cir.1951)); Fajeriak v. State, 520 P.2d 795 (Alaska 1974) ("Following Coplon, courts have agreed that proof of deliberate eavesdropping upon attorney-client communications automatically invalidates a conviction. The United States Supreme Court implicitly adopted this rule in Black v. United States.").

In 1977, the United States Supreme Court appeared to alter this standard in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Weatherford involved an informant/codefendant who attended meetings between Bursey and his attorney. The Supreme Court found no Sixth Amendment violation where there was no tainted evidence, no communication of defense strategy to the prosecution, and no purposeful intrusion by the government. Id. at 558, 97 S.Ct. 837. The Court held that establishing a violation of a defendant's Sixth Amendment right to counsel requires a showing of "at least a realistic possibility" of prejudice. Id.

Because the government interceptions in Weatherford were "unintended and undisclosed" (id. at 565, 97 S.Ct. 837, Marshall, J., dissenting), the Court did not address whether the rule would be different in a case involving deliberate misconduct by the government. Nor did the Court decide who bears the burden of proving prejudice. In 1988, the Supreme Court declined to hear a case that would have resolved a hopeless conflict among the circuits on that issue. See Cutillo v. Cinelli, 485 U.S. 1037, 108 S.Ct. 1600, 99 L.Ed.2d 915 (1988). Dissenting from the denial of certiorari, Justice White, joined by the Chief Justice and Justice O'Connor, summarized the positions taken by the various circuits. At one extreme are those courts which require the defendant to prove prejudice. At the other extreme are those which find a per se violation of the Sixth Amendment when the prosecution improperly obtains confidential defense strategy information or intentionally places an informer in the defense camp. In the middle are those courts which hold that where confidential defense strategy information is transmitted to the prosecution and the defendant makes a prima facie showing of prejudice, the burden then shifts to the prosecution to prove there was no prejudice to the defendant from the disclosure. Id. Thus, we have little guidance from the federal courts on this issue.

Weatherford is inapplicable to the case sub judice, where a member of the prosecution team intentionally eavesdropped on a confidential defense conversation. We conclude, consistent with existing federal precedent, that a defendant must show either deliberate prosecutorial misconduct or prejudice to make out a violation of the Sixth Amendment, but not both....