Connolly v. State

Citation500 So.2d 57
Decision Date10 December 1985
Docket Number1 Div. 965
PartiesRodney CONNOLLY v. STATE.
CourtAlabama Court of Criminal Appeals

James H. Lackey, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant and William D. Little, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

Rodney Connolly was charged in a two-count indictment with the capital offenses of murder during the commission of a robbery and murder for hire. Alabama Code 1975, §§ 13A-5-40(a)(2) and (7). At trial, the trial court granted Connolly's motion to exclude as to count two charging murder for hire, finding that the State had not presented any evidence to support that charge. The jury found Connolly "guilty of the capital offense as charged in the indictment" and recommended a sentence of life without parole. Following this recommendation, the trial court sentenced Connolly to life without parole. Three issues are raised on this appeal.

I

Connolly argues that the trial court erred in permitting Attorney Al Pennington to testify against him over his objection of attorney-client privilege.

Jack Herriman II was Connolly's accomplice in the murder of Kathy Jo Sands. Before Connolly was tried, Herriman was separately tried and convicted for the capital murder of Ms. Sands. Herriman's retained attorney, both at trial and on appeal, was Al Pennington.

After Herriman was convicted, Connolly was indicted for the capital murder of Ms. Sands. Connolly had been previously convicted for the theft of Ms. Sands' automobile.

In May of 1984, Attorneys Reynolds Alonzo and Wilson Hawkins were appointed to represent Connolly on the capital charges. In July of 1984, Connolly retained attorneys Robert Clark and Jeff Deen. These two attorneys represented Connolly at trial.

While incarcerated in the Mobile County Jail awaiting trial, Connolly had some "grievances" about jail conditions and also "some complaints or some questions" about one of his attorneys. Connolly spoke with Fritz Nahrgang, a minister with a prison fellowship group who frequented the jail. Nahrgang suggested that he contact the "jail monitor" concerning his grievances. At that time, one of the "jail monitors" was Al Pennington.

Nahrgang contacted Pennington and told him that Connolly wanted to talk to him. Connolly telephoned Pennington several days later. As a result of their conversation, Pennington and his law partner, Dan McCleave, went to the jail and spoke to Connolly.

Pennington testified that Connolly told him that "he [not Herriman] was the one who went through, rifled the purse and took ... a money machine card and whatever was taken out of her purse." Connolly also told Pennington that "he and Stacey Brunner discussed getting rid of Kathy Sands," and that "he sort of felt responsible for Kathy Sands being dead." Connolly stated "that Jack Herriman was a whimp [sic] and that he could pretty much get Jack to do whatever he wanted him to do."

Pennington used the information he obtained from Connolly in an attempt to extract certain post-conviction "concessions" from the District Attorney for Herriman. However, no deal was ever reached.

The State subpoenaed Pennington to testify at Connolly's trial to the substance of his conversation with Connolly at the Mobile County Jail. Pennington moved to quash the subpoena, asserting "work-product" and "attorney-client privilege" as grounds for the motion. Connolly's attorney also objected to the State's attempt to elicit Pennington's testimony.

The trial court denied both Pennington's and Connolly's motions. Pennington sought review of the ruling by "Petition for Writ of Prohibition" in this Court alleging "work product" and "attorney-client privilege" as grounds for issuance of the writ. The petition was denied without opinion in Ex parte Pennington, 461 So.2d 60 (Ala.Cr.App.1984), cert. denied, 459 So.2d 1017 (Ala.1984).

Connolly now contends that the trial court erred in permitting or ordering Pennington's testimony alleging a violation of the attorney-client privilege.

The attorney-client privilege is statutorily defined at § 12-21-161, Code of Alabama 1975:

"No attorney or his clerk shall be competent or compelled to testify in any court in this state for or against the client as to any matter or thing, knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing the knowledge of which may have been acquired in any other manner."

The basic elements of this privilege have been stated by Dean Wigmore in the following manner:

"(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." C. Gamble, McElroy's Alabama Evidence § 388.01 (3d ed. 1977).

The burden of establishing the privilege rests with the client or the party objecting to the disclosure of the communication. "The burden of showing the confidential character of a communication rests on the party objecting to the introduction of evidence. This party must establish the relationship of attorney and client as well as other facts demonstrating the claim of privileged information. See Harris v. State, 281 Ala. 622, 206 So.2d 868 (1968). The client must also show that the admission of this privileged information into evidence will be prejudicial to the client. See Rowland & Co. v. Plummer, 50 Ala. 182 (1874). Because, however, invocation of this privilege is solely the client's prerogative, the privilege may be waived, either directly or constructively, by the client. See Rowland & Co., supra." Swain v. Terry, 454 So.2d 948, 953-54 (Ala.1984).

" 'Whether a communication by a client to his attorney is privileged is a question of fact to be determined by the court. A witness, be he attorney or client, is not entitled to decide the question for himself.' " Harris v. State, 281 Ala. 622, 625, 206 So.2d 868, 871 (1968), quoting, Ex parte Griffith, 278 Ala. 344, 350, 178 So.2d 169, 176 (1965), cert. denied, 382 U.S. 988, 86 S.Ct. 548, 15 L.Ed.2d 475 (1966).

At the pretrial hearing on this issue, Connolly testified that, while in the Mobile County Jail, he had some "complaints" about jail conditions and "questions" about one of his attorneys. He asked Nahrgang about securing legal assistance. Nahrgang suggested that Connolly talk to one of the "jail monitors". Nahrgang told Connolly that Al Pennington worked in such a capacity and Connolly requested that Nahrgang contact Pennington on his behalf. Connolly himself later called Pennington from the jail. Pennington and his law partner went to the jail and spoke to Connolly. Connolly contended that he "address[ed] Pennington in his capacity as an attorney." He "assumed" that the conversation would be confidential. Connolly's stated purpose in contacting Pennington was "to secure an opinion and to discuss the possibility of legal services."

Connolly acknowledged on cross examination that Pennington told him that he represented Herriman, but denied that Pennington told him that he could not also represent him.

Al Pennington testified that, at the time Connolly contacted him, he was employed by Mobile County as a "jail monitor". In this capacity, Pennington was "[t]o advise ... the Circuit Court and District Court judges concerning bonds of people who had been in jail for long periods of time in what appeared to be bondable offenses."

Pennington stated that he was contacted by Nahrgang and informed that Connolly wanted to talk to him, but Nahrgang did not say what Connolly wanted to talk about. Pennington refused to speak to Connolly unless Connolly made direct contact with him and requested such a meeting. Pennington testified at a suppression hearing conducted during the trial that, "I told Mr. Nahrgang that I would not just go and see Rodney Connolly on his word. But that if Mr. Connolly wanted to contact me that he should do so, and then I would come see him." Connolly telephoned Pennington a few days later and Pennington and his law partner, Dan McCleave, went to the county jail and spoke to Connolly.

Connolly informed Pennington of "one grievance," but they got into "conversation about other things as well." Connolly's "complaint ... didn't have anything to do with bond."

Pennington stated that he advised Connolly at the very beginning of their conversation that he represented Jack Herriman and was still representing him on appeal. Pennington told Connolly, "that any part of our conversation that concerned Mr. Herriman would be used by me for the benefit of Mr. Herriman and Mr. Herriman only," and that he "could only represent Jack Herriman." Pennington could not recall telling Connolly that he could not represent him on any matter, just not "anything that involved Jack Herriman." Pennington testified that Connolly never asked him to represent him as a lawyer.

Under these facts and circumstances, we find that the trial court did not err in compelling Pennington to testify at Connolly's trial.

The question of whether the communication was privileged was a question of fact for the court to resolve, Harris v. State, supra, especially considering the conflicting testimony of Connolly and Pennington. While Connolly testified that he assumed his conversation with Pennington was "confidential," Pennington testified that he told Connolly that he would use any information obtained during the course of their conversation to benefit Herriman. Connolly maintained that Pennington never told him that he could not represent him. Yet, Pennington...

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