Lykins v. State
| Decision Date | 23 June 1980 |
| Docket Number | No. 111,111 |
| Citation | 415 A.2d 1113,288 Md. 71 |
| Parties | Mitzi Jean LYKINS v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.
William H. Kenety, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, and Neal P. Myerberg, State's Atty., Leonardtown, for St. Mary's County, on brief), for appellee.
Argued before SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
We shall here hold that there is a difference between the circumstances which bar a prosecution, requiring dismissal of an indictment, from those which only bar a prosecutor, although both may involve actions of the prosecutor. In the former situation the indictment or information is dismissed. In the latter situation there is no dismissal of the indictment or information, but the prosecutor is disqualified and the appointment of a special prosecutor becomes necessary. Hence, we shall modify and affirm the judgment of the Court of Special Appeals in State v. Lykins, 43 Md.App. 472, 406 A.2d 289 (1979).
Mitzi Jean Lykins was indicted by the Grand Jury of St. Mary's County for assault and battery and assault with intent to murder George Leo Welch, Jr. 1 The incident took place on January 29, 1979. Neal P. Myerberg, the present State's Attorney for St. Mary's County, became such on January 8, 1979.
Lykins moved to dismiss the indictment. The motion recited that she had been separated from her husband, William Anderson, since May 1978; that prior to that separation she had "maintained a social relationship with the alleged victim in the (case at bar), and immediately subsequent to the said separation, commenced a coresidence with the said alleged victim;" that upon the separation she "commenced a course of conduct designed to effect the termination of her marriage to the said Anderson, including the retention of an attorney;" that the attorney retained by her was Neal P. Myerberg; that she imparted to him "various information regarding her personal and domestic history, including her relationship with the aforesaid Welch, in a confidential relationship protected by the attorney-client privilege;" that the case at bar "is inextricably related to the personal and domestic history of the defendant;" that the evidence upon which the indictment is laid was presented to the Grand Jury for St. Mary's County by Neal P. Myerberg as State's Attorney for that county; that "(t)he presentation of evidence in a matter involving the defendant's personal and domestic life, particularly in a secret proceeding to which the defendant is denied access and of which no record is kept, is tantamount to a breach of the attorney-client privilege;" that "(t)he prosecution of these proceedings by the defendant's attorney is a related matter (which) would raise the spectre of breach of the attorney-client privilege and would deny the defendant her right against self-incrimination and due process of law insofar as the defendant would be subject to cross-examination in an accusatory criminal proceeding by her attorney in a related matter should the defendant elect to testify in her own defense;" and that prosecution of Lykins by Myerberg or his assistants (two of whom are members of the law firm which succeeded Myerberg's practice) "constitutes a conflict of interest with the representation of the defendant by Mr. Myerberg's law firm in the defendant's domestic proceedings, under the premise, inter alia, that conviction in these proceedings resulting in a sentence to imprisonment for three years or more, would render the defendant herein an actionable defendant in proceeding for divorce." 2
Myerberg, the State's Attorney, was called as a witness by Lykins when the motion came on for hearing in the circuit court. In response to a question as to whether he was "familiar with Mitzi Jean Lykins," he said that he "never knew her as Mitzi Jean Lykins until (he) met her in January, but (he was) familiar with her," having known her as Mitzi Jean Anderson. He stated that he became her attorney in July of 1978 when he prepared a separation agreement. He was asked whether in the course of his representation he "discuss(ed) her personal and domestic history." He responded, "I discussed her history with her husband . . . ." He said he had no personal knowledge of whether she had obtained a divorce. He was asked specifically as to whether he ever heard the name of George Leo Welch, the victim, "prior to the prosecution of these proceedings." After he stated that he did not recall hearing the name, he was pressed further and replied:
Well, it's impossible to recall as much as that because you're talking about a period of months and a period of many, many words that are said to me; but I doubt that I ever heard that word, because in examining my file maintained in the office as to Mitzi J. Anderson there has not been any indication of any mention of George Welch. I write down everything.
He had reviewed the file on the morning of the hearing. He said that until the offense occurred he had no knowledge of the fact that Welch and Lykins "were sharing a residence." The record then is:
Q You did not know it until the offense occurred.
A That's right.
Q You are certain of that?
A To the best of my recall.
Q To the best of your recall?
A That's right.
Q But you cannot say with absolute certainty?
A Mr. Sparling, I can't say with absolute certainty that it's raining outside right now unless I go outside and see the rain; but I can tell you to the best of my recall I never knew that she was living with George Welch anywhere until I learned it the time the police brought me a report of this crime.
Myerberg indicated that he appeared for the State at a bond hearing in the District Court on January 29. He stated that he presented the case to the grand jury. Myerberg was asked whether he made any representation to the District Court at the time of the bond hearing "based upon (his) personal knowledge of Miss Lykins." He responded affirmatively, indicating that this "personal knowledge of her was acquired in (his) meeting her back in July of 1978." The record reflects that at the latter hearing the bond was reduced from $7,500 to $5,000.
On cross-examination Myerberg testified that his representation of Lykins began on July 18, 1978, when he met her at his office and that "other than some telephone communication and some correspondence (he) probably never saw her again." He said, "(W)e terminated as of October the 6th, which is the date on which I believe I forwarded the separation agreement to her for signature by herself and her husband." In response to a question as to when his representation in the matter of an uncontested separation agreement would terminate, he stated:
In matters like this where there was a Judicare form involved where the client was sent to me as a result of the Maryland Legal Services Program through the Department of Social Services would be over at the time the separation agreement was prepared. That, again, would have been October the 6th.
On re-direct examination Myerberg again was asked whether he knew George Leo Welch, Jr., the victim, prior to the institution of these criminal proceedings. He responded in the negative. He said he did not know whether Welch had ever been in his office, that he might have been, but if he were he "would have been there without telling (Myerberg) his name," which was "why (Myerberg) can't be sure if he was."
Lykins was the only other witness called in support of the motion. She said that at the time of that hearing she was legally married to William R. Anderson, but had been separated from him since May of the preceding year. She testified that she retained Myerberg to represent her in the preparation of a separation agreement. In response to a question as to with whom she was living at the time of the retention of Myerberg, she replied, "I was in the process of living with George Welch," indicating that he was the individual mentioned as the victim in the indictment. She stated that in connection with the case she had visited Myerberg's office accompanied by Welch. The separation agreement was sent to her with instructions to procure the signature of her husband. The record reflects:
Q In fact, once you received the agreement from me, Miss Anderson, you never had any further correspondence or communication with me directly, did you?
A No, because you had mentioned to me once the papers were drawn up and they were sent to me that I'd just go to a notary public.
At another point the record reflects:
Q You never had any contact with me from October on, did you?
A No; but you were still my lawyer as far as I know.
Q As far as you knew; but I had completed the work you assigned me. You assigned me the preparation of the separation agreement, didn't you?
A Yes.
Q You didn't assign me any divorce; you brought me a form for a separation agreement, didn't you?
A Yes.
Q And that was done as of October 6th, wasn't it?
A Right.
She said that she forwarded the agreement on January 6 to Myerberg and requested an acknowledgment of it. This accounts for the letter of January 22, 1979, to Mitzi J. Anderson, previously identified by Myerberg. It was introduced into evidence at the conclusion of the direct examination of Lykins. The letter was from the firm which succeeded to the Myerberg practice upon his election to the full-time position of State's Attorney for St. Mary's County. It "acknowledge(d) receipt of the original Separation Agreement which was returned by (Mrs. Anderson) to th(at) office." She was "advised that (she) m(ight) any time after May 1, 1979, institute a divorce action on the grounds of a voluntary separation in excess of twelve months." 3
The trial judge quoted from Sinclair v. State, 278 Md. 243, 252-56, 259-60, 363 A.2d 468 (1976). Altho...
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