Brown v. State

• Decision Date: 27 April 1983
• Docket Number: No. 982S369,982S369
• Parties: Delores BROWN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 10

448 N.E.2d 10

Delores BROWN, Appellant, v. STATE of Indiana, Appellee.

No. 982S369.

Supreme Court of Indiana April 27, 1983.

Thomas M. Leatherman, Mehl, Mehl, Beeson & Leatherman, Goshen, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia Sue Stanley, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged by way of information with two counts of Felony Murder by Arson. She was tried before a jury and found guilty on both counts. She was sentenced to concurrent terms of imprisonment of thirty (30) years upon each conviction.

The facts are as follows. Appellant lived with her mother, her infant child and her two brothers, James and Bruce, in a two story frame house in Elkhart. In the fall of 1980 she was a tenth grade student in Elkhart Central High School. During this period of time appellant and her mother were frequently at odds over such matters as her attendance and performance at school and her relationship with her current boyfriend.

On September 2, 1980, appellant went to school in the morning with her brother James but left school without permission at about 11:00 A.M. She returned home about 5:00 P.M. and was confronted by her mother about her absence from school. Appellant had already made plans to run away from home with her child and her boyfriend. The three were going to go to Pontiac, Michigan, where the boyfriend had a job and an apartment. That evening appellant packed most of her and the baby's belongings in suitcases and hid them in her room.

Sometime after 10:00 P.M. that evening, after the rest of the family had gone to bed, appellant went to the garage and retrieved a metal can at least partially filled with gasoline. She either intentionally poured or accidentally spilled some gasoline on the living room carpet. She attempted to wipe up the gasoline with a pair of socks. Then she struck a match and put it to the spot where the gasoline had been spilled. When the fire quickly grew out of proportion to her expectations she tried unsuccessfully to smother it with a blanket. She ran upstairs and tried to awaken her brothers to tell them there was a fire downstairs but was also unsuccessful in this effort. Both boys ultimately died as a result of the fire.

After trying to roust her brothers, appellant took her suitcases and her child and exited the house through a bathroom window. Her mother also escaped the fire. A policeman cruising the neighborhood early in the morning of September 3 found the suitcases under some shrubs near the home. Other containers packed with the child's clothing were found in the back seat of appellant's mother's car.

While the fire was being fought, appellant went to the home of an aunt and uncle who lived nearby. At around 2:30 A.M. she and her mother went to the Elkhart police station and were questioned about the fire. Eventually appellant confessed in two separate statements that she started the fire. Both confessions were suppressed by the trial judge.

Appellant claims the trial court erred in permitting State's witness Delbert Thornburg to testify in the State's case in chief.

Following appellant's confession and detention, the State undertook to proceed under I.C. Sec. 31-6-2-4 [Burns 1980 Repl.] to have appellant waived from juvenile court to circuit court where she could be charged with felony murder and tried there as an adult. The required waiver hearing resulted in waiver of appellant into Elkhart Circuit Court.

Thornburg was hired by the attorney who was appointed to represent appellant in the juvenile court proceedings. Thornburg, a licensed polygraph examiner, administered a polygraph examination to appellant on September 24, 1980. During that examination appellant related to Thornburg, in response to his questions, that she started the fire in the manner described in the recitation of facts, that she only intended to burn a small hole in the carpet to let her mother know how unhappy she was with her, and that she did not intend to burn down the house or damage it extensively or harm her brothers. At the waiver hearing in juvenile court Thornburg testified on behalf of appellant as to his administration of the polygraph examination and as to his assessment of the truth of appellant's statements about her intentions on the night of the fire.

At the trial in criminal court the State called Thornburg as a witness. He was asked to relate to the jury the substance of his conversation with appellant, that is, to relate to the jury the questions he asked her and the answers she gave. He was not allowed to state that these communications took place pursuant to the administration of a polygraph examination.

Appellant contends the admission of this testimony is reversible error. First, she argues the admission of this testimony constituted admission of a communication between a client and the agent of an attorney that was protected by the attorney-client privilege. She claims such privilege was not waived by the client. Alternatively she argues the communication was protected from disclosure by the work product doctrine as developed in Hickman v. Taylor, (1947) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.

The State responds with several arguments, however, we will consider only one, that by having Thornburg testify at the waiver hearing in the juvenile court appellant waived any protection afforded to the communications between Thornburg and her under either the work product or attorney-client privilege theories.

The attorney-client privilege has been recognized in this State since 1840. In Jenkinson v. State, (1840) 5 Blackf. 465, 466-67, this Court stated:

"The policy of the law requires, that when an attorney is consulted on business within the scope of his profession, the communication on the subject between him and his client should be treated as strictly confidential. It is not material, whether the evidence relate to what was said by the attorney, or what was said by the client, in their private conversation on the business in which the attorney was professionally employed. The statements of each to the other, in such cases, must be considered as privileged communications; and the attorney should neither be required nor permitted, by any judicial tribunal, to divulge them against his client, if the latter object to the evidence."

This Court continues to recognize the attorney-client privilege as it relates to communications between the client and his attorney, for the purpose of obtaining advice and aid upon the subject of the client's rights and liabilities. See, Colman v. Heidenreich, (1978) 269 Ind. 419, 381 N.E.2d 866. We identified the purpose of the privilege in Colman, supra, as follows:

"It makes provision for a person to give complete and confidential information to an attorney, so that the attorney may be fully advised in his revises to the client. At the same time, it assures the client that these confidences will not be violated." Id. at 422, 381 N.E.2d at 868.

The attorney-client privilege has been recognized by statute in Indiana as well. See, I.C. Sec. 34-1-14-5 [Burns 1973]; I.C. Sec. 34-1-60-4 [Burns 1973]. See also, The Code of Professional Responsibility and the Ethical Considerations and Disciplinary Rules promulgated thereunder.

The attorney-client privilege is recognized as attaching to communications between the agent of an attorney and the client, provided the communication is made to the agent upon the same subject matter about which the attorney was consulted and the agent was retained by the attorney for the purpose of assisting him and rendering legal advice to or conducting litigation on behalf of the client. See, 81 Am.Jur.2d Witnesses Secs. 217, 218 (1976); 97 C.J.S. Witnesses Sec. 276(c)(2) (1957); 2 P. Herrick Underhill's Criminal Evidence Sec. 329 (5th ed. 1956).

Given these principles and the state of the record in this case, we have no difficulty in finding the attorney-client privilege attached to the communications between appellant and Thornburg at the time they took place. The record shows an attorney-client relationship between appellant and the attorney, that the attorney employed Thornburg as his agent for the purpose of assisting him in rendering legal advice to appellant, that the communications between appellant and Thornburg took place while the latter was acting as the attorney's agent, and that the communications related to the same subject matter about which the attorney was consulted.

The State cites the case of United States v. Nobles, (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141, in support of the argument Thornburg's act of testifying at the waiver hearing in juvenile court is a waiver of the privilege. In that case an investigator hired by the defendant's attorney had made a written report to the attorney summarizing statements made to him during pretrial interviews of certain prosecution witnesses. After these witnesses had testified for the prosecution and had given testimony contrary to their pretrial statements to the investigator the defendant called the investigator as a defense witness for the purpose of impeaching the government's witnesses by having him testify about the statements. When the defendant refused to let the prosecutor inspect the investigator's report for the prosecutor's own use in cross-examination, arguing the work product doctrine protected the report from disclosure to the government, the trial court ruled the investigator could not testify at all about the statements of the witnesses. The Supreme Court reversed holding, inter alia, that "electing to present the investigator as a witness waived the privilege with respect to matters covered in his testimony." Id. at 239, 95 S.Ct. at 2170-71, 45 L.Ed.2d at 141.

We agree with the State's argument that Nobles, supra, is applicable in the case at bar.

The case of Simmons v. United States, (1966) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, cited by ...