Lanari v. People

• Decision Date: 10 March 1992
• Docket Number: No. 90SC646,90SC646
• Citation: 827 P.2d 495
• Parties: Robert Brad LANARI, Petitioner, v. PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 495

827 P.2d 495

Robert Brad LANARI, Petitioner, v. PEOPLE of the State of Colorado, Respondent.

No. 90SC646.

Supreme Court of Colorado,

En Banc.

March 10, 1992.

Rehearing Denied April 6, 1992.

David F. Vela, Colorado State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

We granted certiorari to review the judgment of the Colorado Court of Appeals in People v. Lanari, 811 P.2d 399 (Colo.App.1989), affirming jury verdicts convicting Robert Brad Lanari, the defendant, of offenses of first degree murder, ¹ attempted first degree murder, ² and four counts of crime of violence. ³ When, prior to trial, the defendant sought to introduce expert psychiatric testimony to describe characteristics of the offense of heat of passion manslaughter, section 18-3-104(1)(c), 8 C.R.S. (1978 & 1985 Supp.), ⁴ and to establish that at the time the defendant participated in the events underlying his prosecution his mental state was consistent with the state of mind requisite for that offense, the prosecution filed a motion to prohibit the introduction of such testimony. The trial court granted the motion, and later denied a motion filed by the defendant to prohibit prosecutorial use for impeachment purposes of statements made by the defendant to the psychiatrist. The Court of Appeals affirmed those rulings. We affirm in part, reverse in part, and remand with directions.

I

On June 10, 1986, the defendant shot and severely wounded his estranged wife, Beth Lanari, and killed his friend, Mark Ferguson. The Lanaris were married in 1982. When their marriage began to deteriorate in early 1986, Beth Lanari informed the defendant that she wished to obtain a separation and moved out of the family residence. Soon thereafter she and Ferguson developed a close personal relationship.

On May 30, 1986, the Lanaris filed a joint petition for dissolution of their marriage. The defendant, who was depressed and, according to some evidence admitted at trial, exhibited suicidal tendencies, desired a reconciliation.

On June 10, 1986, the defendant's wife informed him of her relationship with Ferguson and the defendant agreed to meet her at Ferguson's residence that evening to discuss the situation. The defendant arrived wearing a heavy coat. The three conversed at a dining room table, and at some point during the heated discussion the defendant asked his wife to continue in the marriage. She refused, indicated that she preferred her new relationship, and asked the defendant why he was wearing a coat. He stood up, produced a handgun, and stated that he was going to shoot Ferguson and then kill her.

Ferguson began to run, and the defendant fired two shots, one of which struck Ferguson. The defendant chased Ferguson outside, shot him two more times, and reentered the house. He then grabbed his wife by her hair, shot her in the neck, and fled. The defendant testified at trial that prior to leaving the house he placed the gun to his head and pulled the trigger, but that no bullets remained in the chamber.

On June 17, 1986, an information was filed against the defendant alleging six offenses, including, inter alia, first degree murder and attempted first degree murder. After entering not guilty pleas, the defendant filed a motion to endorse expert witnesses containing a notification that he would rely on defenses of self defense, intoxication and heat of passion. The defendant subsequently endorsed Dr. Dean J. Plazak, a psychiatrist who had been retained by defense counsel to assist in preparing defenses to the charges and who had conducted an examination of the defendant, as an expert witness. After interviewing Dr. Plazak and obtaining limited information concerning his potential testimony, the prosecutor filed a motion in limine to prohibit Dr. Plazak from testifying as an expert witness. The trial court granted the motion.

At trial, the defendant testified on his own behalf. Prior to the commencement of cross-examination, the defendant requested the trial court to prohibit the prosecution from referring to any statements made by the defendant to Dr. Plazak, asserting that any such reference would violate the attorney-client privilege established by section 13-90-107(1)(b), 6 C.R.S. (1973 & 1986 Supp.), and the defendant's constitutionally protected right to counsel and privilege against self-incrimination. The trial court denied the motion, and the prosecution then cross-examined the defendant by reference to statements he had made to Dr. Plazak which were inconsistent with the defendant's direct testimony. The jury was instructed on the elements of heat of passion manslaughter, but found the defendant guilty of first degree murder with respect to the death of Ferguson.

II

As previously noted, the defendant endorsed Dr. Plazak as an expert witness. During pretrial discovery, pursuant to the disclosure requirements of Rule 16 of the Colorado Rules of Criminal Procedure (Crim.P. 16), ⁵ the prosecution interviewed Dr. Plazak and obtained several statements made by the defendant during an examination conducted by the doctor at the request of the defendant's attorney. The defendant asserts that in view of the trial court's order excluding Dr. Plazak's testimony, the prosecution's use of the defendant's statements for impeachment purposes violated the attorney-client privilege established by section 13-90-107(1)(b), 6 C.R.S. (1973 & 1986 Supp.), the defendant's right to effective assistance of counsel and the defendant's privilege against self-incrimination. We disagree.

The statute defining the attorney-client privilege states in pertinent part as follows:

(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:

....

(b) An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.

§ 13-90-107(1)(b), 6 C.R.S. (1973 & 1986 Supp.). The privilege is personal to the client, Mountain States Tel. & Tel. v. DiFede, 780 P.2d 533 (Colo.1989); Law Offices of Bernard D. Morley v. MacFarlane, 647 P.2d 1215 (Colo.1982), and therefore may be waived by the client. A, B, C, D, E, F, G and H v. District Court, 191 Colo. 10, 550 P.2d 315 (1976); Losavio v. District Court, 188 Colo. 127, 533 P.2d 32 (1975). The trial court and the Court of Appeals concluded that by listing Dr. Plazak as a potential witness pursuant to Crim.P. 16(II)(b), thus rendering him available for pretrial interview by the prosecution, the defendant impliedly waived the attorney-client privilege with respect to the information obtained by the prosecution during the course of such interview. We agree with that conclusion.

The discovery rules in criminal proceedings are designed to further the truth-seeking process. See Crim.P. 2, 7B C.R.S. (1984). By permitting the prosecution and defense to obtain relevant information prior to trial, the rules also promote fairness in the criminal process by reducing the risk of trial by ambush. People v. Small, 631 P.2d 148 (Colo.1981); People v. District Court, 187 Colo. 333, 531 P.2d 626 (1975). To the extent the requirements of Crim.P. 16 purport to require disclosure of information arguably protected from disclosure by statute or court rule, a party asserting such protection may object to such discovery. ⁶

The defendant's statements to Dr. Plazak are to be deemed statements to the defendant's attorney for purposes of the attorney-client privilege. Miller v. District Court, 737 P.2d 834 (Colo.1987). However, the privilege applies only to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential. United States v. Noriega, 917 F.2d 1543, 1551 (11th Cir.1990); United States v. Liebman, 742 F.2d 807, 810 (3d Cir.1984); United States v. Melvin, 650 F.2d 641, 645 (5th Cir.1981). Furthermore, statements made initially in confidence to an attorney lose the shield of the attorney-client privilege if the statements are subsequently disclosed to third parties. United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir.1990); In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir.1984); see Mauro v. Tracy, 152 Colo. 106, 380 P.2d 570 (1963).

In this case, the defendant voluntarily endorsed Dr. Plazak as a witness, did not object to the prosecution's interview of the witness, and did not request the trial court to enter protective orders with respect to any statements of the defendant obtained during the course of that interview. The statements lost the cloak of confidentiality essential to the statutory attorney-client privilege when the defendant endorsed the physician as a defense witness, thus authorizing disclosure of those statements pursuant to the discovery process.

However, the disclosure of information by an accused required by Crim.P. 16(II) is expressly subject to "constitutional limitations." Crim.P. 16(II)(b)-(c), 7B C.R.S. (1984). Absent a waiver thereof, the accused retained the right to assert that prosecutorial use of his statements to Dr. Plazak violated his constitutional rights. It is well-established that any waiver of the right to counsel or of the privilege against self-incrimination must be knowing, intentional and unequivocal. Brady v....