Mayberry v. State

• Decision Date: 19 July 1996
• Docket Number: No. 32S00-9411-CR-1076,32S00-9411-CR-1076
• Citation: 670 N.E.2d 1262
• Parties: Elizabeth MAYBERRY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1262

670 N.E.2d 1262

Elizabeth MAYBERRY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 32S00-9411-CR-1076.

Supreme Court of Indiana.

July 19, 1996.

Rehearing Denied Dec. 23, 1996.

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General of Indiana, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

We affirm defendant Elizabeth Mayberry's conviction for the murder of minister Roland Phillips, committed as he concluded his Sunday sermon at the North Salem United Methodist Church.

Background

In May, 1992, defendant met Phillips, a student pastor at the North Salem United Methodist Church, at a singles retreat sponsored by the United Methodist Church. Defendant and Phillips dated for several months after the retreat. During the course of their relationship, defendant, then 35 years old, claims that Phillips encouraged her to allow him to kiss her using his tongue, engage in consensual, mutual, oral sex with him, fondle and kiss her breasts, and digitally penetrate her vagina. Defendant had never before had intimate physical contact with a man. Phillips would later deny to church officials that he had ever engaged in oral sex with defendant. Defendant's relationship with Phillips took a turn for the worse in August of 1992. In an attempt to salvage the relationship, defendant wrote Phillips letters inquiring into the status of their relationship. In one of these letters, she asked Phillips to attend counseling with her. In November, 1992, defendant received a letter from Phillips in which he stated that their relationship was over. This letter deeply hurt defendant and made her angry.

In December, 1992, defendant filed a complaint with the United Methodist Church (UMC) in which she alleged that Phillips had engaged in sexual misconduct. When speaking about her relationship with Phillips to Reverend Harry Coleman, defendant stated: "My concern is for the next woman with whom he chooses to have a relationship. What kind of damage will he do to her life? He says his behavior is a pattern. I believe it is one which must be broken." After several hearings on defendant's complaint, the UMC Committee on Ordained Ministry determined, in May, 1993, that Phillips was to retain his position as a student pastor. Upon learning the result of her complaint, the defendant became extremely distraught.

Although defendant continued to work, she became withdrawn and cut everyone off. Defendant no longer believed in God and felt like the church had treated her terribly. Despite the fact that defendant sought counseling, in June, 1993, she started having thoughts about killing herself. She also began writing a book on her personal computer. She thought if she wrote down what had happened to her, she might be able to make some sense of it. On August 2, 1993, defendant purchased a handgun and box of ammunition in Bloomington. On August 19, 1993, a firearms expert and trainer spent two hours with defendant at her house showing her how to use and care for the gun.

On September 18, 1993, defendant loaded the gun with five cartridges. On Sunday morning September 19, defendant, with the gun concealed in her purse, drove to North Salem United Methodist Church. Defendant arrived in front of the church at about 11:00 a.m. and parked her car across the street. Upon entering the sanctuary, defendant never took her eyes off of Phillips, who was delivering a sermon from the pulpit. Defendant walked down the center aisle toward the pulpit. As she approached the pulpit, Phillips turned and looked at her and told her that he would speak with her after the service concluded. Defendant stood silently at the left side of the pulpit and watched Phillips finish his sermon. Phillips finished his sermon, asked the congregation to stand, and announced the last hymn. Defendant pulled the gun out of her purse, aimed it directly at Phillips and fired twice. Phillips's knee's buckled and he fell to the floor. Defendant exclaimed: "You raped me! You raped me!" Phillips responded: "No I didn't. No I didn't." Defendant walked closer to Phillips and fired the gun two more times. Two members of the congregation ran to the altar, pushed defendant down, and pried the gun from her hand. Another member of the congregation sat on defendant until the police came. Phillips's daughter, who was in the congregation, walked up to the altar, leaned over and kissed her father, and told him that she loved him. Phillips told his daughter that he loved her. The paramedics arrived shortly thereafter and took Phillips to the hospital where he died due to loss of blood from gunshot wounds to the neck, chest, wrist, and leg.

Officer John Hancock arrived at the church and confiscated defendant's gun. Inside defendant's purse, the officer found a box of bullets as well as a note that stated: "He is not worth dying for, but the innocent woman he killed is." Approximately two hours after the killing, defendant gave a statement to Officer Susan Austin in which she described in detail her relationship with Phillips, her devastation when the relationship ended, and her plan to kill Phillips. Defendant also told Austin that she had saved the fifth bullet in the gun to kill herself, but she was subdued before she could shoot herself.

On September 20, 1993, the State filed an information charging defendant with Murder. ¹ On October 11, 1993, defendant filed a notice of insanity pursuant to Indiana Code § 35-36-2-1 (1993). Defendant's jury trial commenced on June 13, 1994. The jury found defendant guilty but mentally ill ² of Murder on June 22, 1994. The trial court sentenced defendant to a term of sixty years on July 20, 1994.

Discussion

I

A

In a hearing outside the presence of the jury, defense witness Jennie Maretto, a friend of Phillips and a paralegal for a law firm in Fishers, Indiana, testified that Phillips contacted her at work to obtain legal advice regarding a letter he wrote to the UMC in response to the complaint that defendant had filed. Maretto testified that she felt that she was not legally able to give Phillips legal advice but would have to consult with an attorney. Maretto stated that Phillips asked her to consult an attorney. Maretto also testified that she gave a statement regarding her conversations with Phillips to Officer Danny Williams. When defense counsel inquired about the letter Phillips asked Maretto to look over, the State asserted the attorney-client privilege on Maretto's behalf as to any communication between Maretto and the victim. The trial court sustained the State's objection to the admission of Maretto's testimony.

In an offer to prove, the defense introduced into evidence a police report prepared by Officer Williams. In the report, Officer Williams states that when he spoke with Maretto she informed him that Phillips had contacted her to obtain legal advice. The report also states that Maretto advised the officer that Phillips stated that Phillips and defendant had engaged in consensual, mutual oral sex.

Defendant contends that the trial court erroneously determined that the attorney-client privilege attached to comments Phillips made to Maretto because Maretto did not adequately establish that Phillips contacted her in an effort to employ an attorney for professional advice or aid. In Colman v. Heidenreich, 269 Ind. 419, 381 N.E.2d 866 (1978), this court made the following observations:

The attorney-client privilege is a very important provision in our law for the protection of persons in need of professional legal help. It makes provision for a person to give complete and confidential information to an attorney, so that the attorney may be fully advised in his services to the client. At the same time, it assures the client that these confidences will not be violated.

Colman, 269 Ind. at 421, 381 N.E.2d at 868. Indiana Code § 34-1-14-5 (1993) provides that attorneys shall not be competent witnesses "as to confidential communications made to them in the course of their professional business, and as to advice given in such cases." This "attorney-client privilege not only plays a role in our law of evidence but is also fundamental to our rules of professional conduct which forbid attorneys from revealing 'information relating to representation of a client unless the client consents after consultation.' See Ind.Professional Conduct Rule 1.6." Corll v. Edward D. Jones & Co., 646 N.E.2d 721, 724 ( Ind.Ct.App.1995). As long as an attorney is consulted on business within the scope of the attorney's profession, "it is of no moment to the privilege's application that there is no pendency or expectation of litigation. Neither is it of any moment that no fee has been paid." Colman, 269 Ind. at 423, 381 N.E.2d at 869 (citations omitted). Rather, the essential prerequisites to invocation of the privilege are to establish by a preponderance of the evidence (i) the existence of an attorney-client relationship and (ii) that a confidential communication was involved. See Colman, 269 Ind. at 423, 381 N.E.2d at 869. To meet the burden of showing that an attorney client relationship existed, the State had to, at the very least, establish that the communication at issue occurred in the course of an effort to obtain legal advice or aid, on the subject of the client's rights or liabilities, from a professional legal advisor acting in his or her capacity as such. Id.; United States v. Demauro, 581 F.2d 50, 55 (2nd Cir.1978).

Defendant suggests that Phillips's communications with his friend Maretto are privileged "only if his asking her to have an attorney look over his papers can be construed to be an attempt by Phillips to employ legal counsel." Defendant also states that the State failed to meet its burden of establishing that Maretto's communications with Phillips were privileged...