Hitch v. Pima County Superior Court, 18080-SA

• Decision Date: 01 October 1985
• Docket Number: No. 18080-SA,18080-SA
• Citation: Hitch v. Pima County Superior Court, 708 P.2d 72, 146 Ariz. 588 (Ariz. 1985)
• Parties: , 54 USLW 2242 Michael Thomas HITCH, Petitioner, v. PIMA COUNTY SUPERIOR COURT, The Honorable Gilbert Veliz, Division II, Respondents, and STATE of Arizona, Real Party in Interest.
• Court: Arizona Supreme Court

Page 72

708 P.2d 72

146 Ariz. 588, 54 USLW 2242

Michael Thomas HITCH, Petitioner, v. PIMA COUNTY SUPERIOR COURT, The Honorable Gilbert Veliz, Division II, Respondents and STATE of Arizona, Real Party in Interest.

No. 18080-SA.

Supreme Court of Arizona In Banc.

Oct. 1, 1985.

Frederic J. Dardis, Pima County Public Defender by Lawrence H. Fleischman and David Sherman, Deputy Public Defenders, Tucson, for petitioner.

Stephen D. Neely, Pima County Atty. by Rick Unklesbay, Deputy County Atty., Tucson, for respondents.

Nat. Legal Aid and Defender Ass'n by Richard J. Wilson, Washington, D.C., for amicus curiae.

CAMERON, Justice.

This is a special action brought by defendant from an order of the trial court compelling defendant's attorney to deliver potentially inculpatory, physical evidence to the state and requiring that the attorney withdraw from representation. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and Rule 7, R.P.Sp.Act., 17A A.R.S.

We must decide three questions:

1. Does a defense attorney have an obligation to turn over to the state potentially inculpatory, physical evidence obtained from a third party?

2. If so, in what manner may this be done?

3. Must he then withdraw as attorney for the defendant?

The essential facts are not in dispute. Defendant was indicted for first degree murder and is currently awaiting trial on that charge. In the course of their investigation, the police interviewed defendant's girlfriend, Diane Heaton, who told them that the victim was in possession of a certain wristwatch shortly before his death. Subsequently, an investigator for the Pima County Public Defender's Office contacted Ms. Heaton and she informed him that she had found a wristwatch in defendant's suit jacket. She also stated that she did not want to turn the evidence over to the police. The investigator contacted defendant's attorney who told him to take possession of the watch and bring it to the attorney's office. The attorney indicated that he did this for two reasons. First, he wanted to examine the watch to determine whether it was the same one that Ms. Heaton had described to the police. Second, he was afraid that she might destroy or conceal the evidence. Shortly thereafter, defendant informed the police that he had taken a watch from the victim. The police were, however, unaware of the location of that watch.

On 11 June 1984, defendant's attorney filed a petition with the Ethics Committee of the Arizona State Bar, requesting an opinion concerning his duties with respect to the wristwatch. The Ethics Committee informed the attorney that he had a legal obligation to turn over the watch to the state and that he also might be compelled to testify as to the original location and source of the evidence. Opinion No. 85-4 (14 March 1985). ¹

Defendant's attorney informed the Respondent Judge of the Committee's decision. Judge Veliz ordered that the watch be turned over to the state and that the attorney withdraw from the case. He also stayed the order to allow the filing of this petition for special action. We accepted jurisdiction because this case presents an issue of statewide importance in an area of the law that is unsettled.

I. Must Defendant's Attorney Turn the Evidence Over to the State?

We have previously held that an attorney need not turn over physical evidence obtained from his client if the evidence was such that it could not be obtained from the client against the client's will, State v. Superior Court, 128 Ariz. 253, 625 P.2d 316 (1981). We have not, however, ruled as to physical evidence obtained from a third party. As to this question, cases from other jurisdictions are few in number. We do note, however, two cases that have dealt with the issue before us and have found that a defense attorney, as an officer of the court, has an obligation to turn over to the state material evidence obtained from third parties.

The Alaska Supreme Court was confronted with a case in which the defendant's attorney in a kidnapping case had received from a third party written plans for the kidnapping drawn by the client. In reviewing whether counsel violated defendant's right to adequate representation by making the existence of the plans known to the state, the court stated:

As Morrell notes, authority in this area is suprisingly sparse. The existing authority seems to indicate, however, that a criminal defense attorney has an obligation to turn over to the prosecution physical evidence which comes into his possession, especially where the evidence comes into the attorney's possession through acts of a third party who is neither a client of the attorney nor an agent of a client. After turning over such evidence, an attorney may have either a right or a duty to remain silent as to the circumstances under which he obtained such evidence, but Morrell presents no authority which establishes that a criminal defendant whose attorney chooses to testify regarding to these matters is denied effective assistance of counsel. Morrell v. State, 575 P.2d 1200, 1207 (Alaska 1978).

The California Court of Appeals, in a case in which the defendant's wife had given his attorney a pair of shoes, linked to the murder, which the state seized from defendant's attorney, stated:

In any event, in the final analysis the controlling question is whether the State's seizure of the evidence violated defendant's rights. It did not. Neither the public defender nor substituted counsel for defendant had the right to withhold the evidence from the State by asserting an attorney-client privilege.

People v. Lee, 3 Cal.App.3d 514, 526, 83 Cal.Rptr. 715, 722 (1970).

Both cases relied on dictum from State v. Olwell, 64 Wash.2d 828, 394 P.2d 681 (1964), in finding that counsel had acted properly. In Olwell, defense counsel was served with a subpoena duces tecum in which he was asked to produce, at a coroner's inquest, all knives in his possession and control relating to the defendant. The attorney refused to indicate whether or not he was in possession of these knives, arguing that to do so would violate the confidential relationship of attorney and client. The Washington Supreme Court found that the subpoena was defective on its face because it required the attorney to reveal information given to him in the course of discussions with his client. The court stated, however:

The attorney should not be a depository for criminal evidence * * * which in itself has little, if any, material value for the purposes of aiding counsel in the preparation of the defense of his client's case. Such evidence given the attorney during legal consultation for information purposes and used by the attorney in preparing the defense of his client's case, whether or not the case ever goes to trial, could clearly be withheld for a reasonable period of time. It follows that the attorney, after a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution.

Id. 394 P.2d at 684-85.

Of course, if the physical evidence is contraband, the attorney may be required to turn over the property even if he obtained that evidence from his client. For example, in a case where the attorney obtained from his client the money taken in a bank robbery and a sawed-off shotgun used in the crime, the attorney was required to turn the property over to the state. In Re Ryder, 381 F.2d 713 (4th Cir.1967). See Comment, The Right of a Criminal Defense Attorney to Withhold Physical Evidence Received from his Client, 38 U.Chi.L.Rev. 211 (1970); Note, An Attorney in Possession of Evidence Incriminating his Client, 25 Wash. and Lee L.Rev. 133 (1968).

At issue is the conflict between a defense attorney's obligation to his client and to the court. As the Preamble to the Rules of Professional Conduct notes, a lawyer is both "a representative of [his] clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice." As a representative of his client, a lawyer must act as a zealous advocate, demonstrating loyalty to his client and giving him the best legal advice possible within the bounds of the law. As part of this zealous representation, the lawyer is admonished not to reveal information relating to representation of his client. ER 1.6.

The Comment to ER 1.6 states:

The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. ²

Because clients are aware that their lawyers will not repeat their communications, they feel that they may make both full and honest disclosure. Trial counsel is thus better able to evaluate the situation and prepare a proper defense. Thus, it has been said that "it is in the interest of public justice that the client be able to make full disclosure." Clark v. State, 159 Tex.Crim.App. 187, 199, 261 S.W.2d 339, 346, cert. denied, 346 U.S. 855, 74 S.Ct. 69, 98 L.Ed. 369 (1953).

We note also that the lawyer's role as a zealous advocate is an important one, not only for the client but for the administration of justice. We have chosen an adversary system of justice in which, in theory, the state and the defendant meet as equals--"strength...