Harris v. Com., 84-CA-841-MR
| Decision Date | 23 November 1984 |
| Docket Number | No. 84-CA-841-MR,84-CA-841-MR |
| Citation | 688 S.W.2d 338 |
| Parties | Eddie Paul HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Robert Alan Riley, Asst. Public Advocate, LaGrange, for appellant.
David L. Armstrong, Atty. Gen., Bruce R. Hamilton, Sp. Asst. Atty. Gen., LaGrange, for appellee.
Before HOWARD, LESTER and WHITE, JJ.
This appeal is from the Order of the Oldham Circuit Court by which appellant's RCr 11.42 motion was overruled.
In October 1982 Mr. Harris filed, pro se, the 11.42 which cited various contentions of ineffective assistance of counsel. Relief was denied without a hearing; however, this determination was subsequently vacated under a 60.02 motion dated November 1982.
The following October a supplement to the 11.42 was filed. Together with the original charge of ineffective assistance of counsel the Circuit Court was asked to consider whether such ineffectiveness affected appellant's entry of a voluntary, knowing guilty plea to his 1980 indictment for murder.
An evidentiary hearing was held in January 1984. At that time Wendell Simpson, Mr. Harris's attorney at the murder proceedings, was called as appellant's first witness. However, Mr. Simpson's testimony was interrupted when Mr. Harris attempted to assert the KRS 421.210(4) attorney-client privilege. The lower Court held that if Mr. Simpson testified, waiver was thereupon effected. Further, the Court noted that certain allegations in appellant's 11.42 complaint in and of themselves constituted waiver.
Choosing not to pursue the examination of his former counsel, Mr. Harris rested upon the pleadings. Reviewing such, the Circuit Court held that effective counsel had been rendered.
On appeal we are first asked to consider the lower Court's position concerning attorney-client privilege. It is argued that appellant should have been permitted to have attempted to prove his case through testimony on non-privileged matters. As long as privileged information was not revealed, it is urged that the privilege would not be waived.
Mr. Harris further asserts that only the issues raised by him existed and that he alone was to choose what proof to offer in support thereof. This, however, overlooks CR 43.06, made applicable to criminal proceedings under RCr 13.04. In pertinent part it states: "[A]ny witness called by a party and examined as to any matter material to any issue may be examined by the adverse party upon all matters material to every issue of the action." (Emphasis added.)
Clearly, therefore, under this Rule Pandora's box was opened when questioning began. Additionally, just as mental health is immediately placed into issue in custody proceedings, thereby resulting in an automatic waiver of the psychiatrist-patient privilege [ Atwood v. Atwood, Ky., 550 S.W.2d 465 (1976) ], it must be held that when ineffective assistance of counsel is raised via an 11.42, the statutory attorney-client privilege is lost. Only when all aspects of the relationship are explored can it be determined whether counsel was reasonably likely to render effective assistance. Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982...
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