Jones v. US, 98-CF-1857.

• Decision Date: 10 July 2003
• Docket Number: No. 98-CF-1857.,98-CF-1857.
• Citation: 828 A.2d 169
• Parties: Stacy N. JONES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

828 A.2d 169

Stacy N. JONES, Appellant, v. UNITED STATES, Appellee.

No. 98-CF-1857.

District of Columbia Court of Appeals.

Argued March 19, 2002.

Decided July 10, 2003.

Tracey D. Weaver, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

David B. Goodhand, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III, and Frederick W. Yette, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY, FARRELL, and WASHINGTON, Associate Judges.

TERRY, Associate Judge:

After a jury trial, appellant was convicted of first-degree burglary, first-degree sexual abuse, first-degree felony murder, and second-degree murder. On appeal he makes three claims of error. First, he contends that the trial court erred when it ruled that the attorney-client privilege did not require the exclusion of testimony about a conversation that appellant had with his girl friend (at the time), who was an attorney employed by the federal government. Second, appellant argues that the trial court erred when it ruled that a search warrant was supported by probable cause. Finally, for the first time on appeal, appellant maintains that the aggravating factor which the court applied to his sentence for first-degree sexual abuse violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We reject the Apprendi argument, affirm on the merits, and remand for the sole purpose of vacating a redundant conviction.

I

On Saturday, March 23, 1996, at about 10:00 a.m., Metropolitan Police officers found Darcie Silver dead in her apartment after they received a call from her concerned co-workers reporting that she had failed to show up for work. The medical examiner determined that the cause of death was asphyxia by strangulation; other injuries indicated that she might also have been smothered. In addition, there were burns around her genital area; pieces of burned newspaper were found in the vicinity of her crotch. A vaginal swab revealed the presence of male deoxyribonucleic acid (DNA). In addition, investigators found semen stains on Ms. Silver's nightgown and on a denim jacket recovered from her apartment. The DNA evidence was later matched to appellant through testing by the FBI.

A police investigation revealed that on Friday evening, March 22, Ms. Silver had dinner with a co-worker from her job at Bread & Circus, a supermarket in the Georgetown area of the city. She returned to her apartment at approximately 10:00 p.m. and spoke to her father on the telephone from 10:47 p.m. on Friday until 12:03 a.m. on Saturday.

Two neighbors in Ms. Silver's apartment building heard a knocking at the front door of the building at about 2:30 a.m. on Saturday. One of the neighbors looked out a window and saw a "stocky" man with a fair to medium complexion at the door. This description was similar to that of appellant, who is a weightlifter and body-builder. Both neighbors heard the man respond to the building intercom using the name "Darcie." They then heard him say that he had locked himself out of his apartment¹ and needed to borrow a telephone. The intercom made a buzzing noise, which unlocked the front door, and the man walked upstairs to the area of Ms. Silver's apartment. About fifteen minutes later, one neighbor heard a "crash" coming from Silver's apartment, and the other heard a loud "thump."

II

Appellant's primary argument on appeal is that the court erred when it ruled that the attorney-client privilege did not attach to a conversation that he had with his girl friend at the time, Tina Ducharme, who was also a lawyer.

After Darcie Silver was murdered, the police interviewed several employees, including appellant, at the Bread & Circus store where Ms. Silver worked. The police requested hair and blood samples from appellant, but he declined to give them. He told the police that his girl friend was a lawyer and that he "wanted to talk to her first and [he] even invited them to come to [his] house to talk to [them] if they wanted to, but only in her company." Later appellant called his girl friend, Tina Ducharme, a lawyer who worked for the federal government. At the time, she was away on business in San Diego. Appellant left a message at her hotel there, and she returned his call some time thereafter.

During their telephone conversation, appellant told Ms. Ducharme about the police interview at Bread & Circus. Defense counsel moved to exclude any testimony from Ms. Ducharme about that conversation. At a pre-trial hearing on the motion, Ms. Ducharme testified that appellant "told me that the police had been by his work and had questioned him and several other people who used to work with Darcie and had asked for blood samples from several individuals ...." Ms. Ducharme's response to appellant's concern was that "obviously he didn't have to [provide the police with a sample] if they didn't have a warrant." She also asked him, however, "why he wouldn't, since it would clear the air. Obviously he didn't have anything to do with [it] or didn't have anything to be concerned about. I didn't understand why he wouldn't just go ahead and do it." Appellant also told her that "he had been in Darcie's apartment before, and he questioned whether or not some fingerprints of his would be remaining in the apartment," particularly on some drinking glasses. Ms. Ducharme replied with the "common sense advice" that "probably Darcie had washed her glasses in the intervening amount of time ...." Finally, appellant asked "what if he had gone to the bathroom and left some sperm in there?" Ms. Ducharme laughed and commented that "unless he was masturbating in her bathroom, I really didn't think that would be a concern." Ms. Ducharme testified that appellant never said anything about her representing him in a criminal matter, nor did she intend to advise appellant as a lawyer, adding, "I wasn't qualified to advise anyone on criminal matters." Appellant, in fact, had never asked her to perform any legal work on his behalf. Besides, she said, she was barred by a regulation from representing any private individual "either criminally or civilly" because she was a government lawyer. Further, she believed the conversation was a typical call between boy friend and girl friend: "when either of us had a problem, we would call the other person to ask their advice or tell them about it."

Appellant's account of the conversation was different. He stated that he telephoned Ms. Ducharme because he "wanted to know what kind of position I would be putting myself in by ... giving ... hair and blood samples." Appellant said that he called her "because she's an attorney" and that he "was seeking legal advice." He testified, "I never thought she could be subpoenaed or anything because she was an attorney." On the basis of his prior experience with other attorneys, appellant believed their conversation would remain confidential.

At the close of the hearing, the court ruled that the conversation was not protected by the attorney-client privilege. Accepting Ms. Ducharme's version of the conversation as credible, the court found appellant's testimony incredible because he "kept switching around on the witness stand . . . as if he was waiting on which way to go." In addition, the court ruled that the only thing Ms. Ducharme "said as a lawyer" was that appellant did not have to give the police hair and blood samples, which he had already elected not to do. Otherwise, said the court, the types of questions appellant asked Ms. Ducharme were "what if" questions that were more scientific than legal:

They were questions about—they're scientific questions. And she wasn't a criminal lawyer to begin with. What if I used a glass, would the fingerprints still be there? Not a legal question. What if I went to the bathroom, would I have semen there? That's not a legal question.

None of these were legal questions. The only legal question in this thing he already knew the answer to.

As a result, the court refused to allow appellant to invoke the attorney-client privilege, and Ms. Ducharme's testimony about the telephone conversation was later introduced into evidence at trial.

There is no controlling precedent governing our review of a trial court ruling on the application of the attorney-client privilege. In Wender v. United Services Automobile Ass'n, 434 A.2d 1372 (D.C.1981), in which the appellant claimed that the trial court had erred in allowing the privilege to be waived, we took a de novo approach but did not explicitly state our standard of review. We note that the federal courts are divided over whether a de novo or a "clear error" standard applies in cases involving both application and waiver of the privilege. Compare, e.g., United States v. Dakota, 197 F.3d 821, 825 (6th Cir.1999)

(de novo standard of review applied), and Ralls v. United States, 52 F.3d 223, 225 (9th Cir.1995) (same), with In re Grand Jury Proceeding Impounded, 241 F.3d 308, 312 (3d Cir.2001) (clear error standard applied); In re Allen, 106 F.3d 582, 601 (4th Cir.1997) (clear error review applied to factual determinations); and United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.1994) (same). Some courts mix their standards of review depending on the issue presented. See Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir.1998) (reviewing factual findings for clear error and "purely legal questions" de novo, but noting that waiver of attorney-client privilege, a question of state law, is reviewed de novo).

In the case at bar, the court heard testimony about the nature and substance of the conversation between appellant and his one-time girl friend, Ms. Ducharme. It made a credibility determination about the contents of the conversation and a factual finding that Ms. Ducharme was not acting as an attorney, but as...