Morrow v. Superior Court, B085297

• Decision Date: 09 December 1994
• Docket Number: No. B085297,B085297
• Citation: 30 Cal.App.4th 1252,36 Cal.Rptr.2d 210
• Court: California Court of Appeals Court of Appeals
• Parties: Robert Lee MORROW, Petitioner, v. SUPERIOR COURT of Ventura County, Respondent; PEOPLE of the State of California, Real Party in Interest.

Page 210

36 Cal.Rptr.2d 210

30 Cal.App.4th 1252

Robert Lee MORROW, Petitioner, v. SUPERIOR COURT of Ventura County, Respondent PEOPLE of the State of California, Real Party in Interest.

No. B085297.

Court of Appeal, Second District, Division 6, California.

Dec. 9, 1994.

As Modified Jan. 5, 1995.

Kenneth I. Clayman, Public Defender, County of Ventura, Christina L. Briles and Bryant Villagran, Deputy Public Defenders, for petitioner.

Glen Mowrer, Public Defender, Michael C. McMahon, Asst. Public Defender, and Mary L. Fielder, Deputy Public Defender, as amicus curiae, on behalf of petitioner.

No appearance for respondent.

Michael D. Bradbury, Dist. Atty. County of Ventura and Kevin G. Denoce, Deputy Dist. Atty., for real party in interest.

YEGAN, Associate Justice.

It has been said, and it is doubtless true, that the "... courtroom is a temple of justice." (Featherston v. United States (1974) 491 F.2d 96, 97, fn. 1.) A prosecutor may not use the courtroom as a place to intentionally and surreptitiously listen to, i.e., eavesdrop upon, a defendant's conversation with his attorney. Indeed, eavesdropping on an attorney-client is inappropriate anywhere and cannot be tolerated.

"[T]he prosecutor is not only the defendant's adversary, but is also the '... guardian of the defendant's constitutional rights....' [Citation.]" (People v. Sherrick (1993) 19 Cal.App.4th 657, 660, 24 Cal.Rptr.2d 25.) These rights include the right to remain silent and the right to counsel. Exercise of these rights necessarily embraces the attorney-client privilege. (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600, 208 Cal.Rptr. 886, 691 P.2d 642.) "[I]f an accused is to derive the full benefits of his right to counsel, he must have the assurance of confidentiality and privacy of communication with his attorney." (Barber v. Municipal Court (1979) 24 Cal.3d 742, 751, 157 Cal.Rptr. 658, 598 P.2d 818.) The intentional breach of the prosecutor's duty is the antithesis of his or her obligation.

Where the prosecutor uses the courtroom as a place to eavesdrop upon privileged attorney-client communications which results in the acquisition of confidential information, the conscience of the court is shocked and dismissal is the appropriate remedy. The sanction is severe but, as we shall explain, it pales when compared to the conduct which compels this court to so hold.

The Eavesdropping ¹

Robert Lee Morrow (hereafter petitioner) is charged with residential burglary. (Pen.Code, §§ 459, 460, subd. (a).) He was arrested therefor on September 14, 1993. Since that date he has been unable to post bail and has remained in custody.

On the day trial was to commence, the assigned deputy district attorney (hereafter the prosecutor) met with petitioner's deputy public defender in court. The prosecutor opined that petitioner had no defense because an alibi witness had recanted. The prosecutor told the deputy public defender that she intended to go on a skiing vacation in a few days and would have to cancel her plans should the case go to trial. The prosecutor said she wanted either a guilty plea or a waiver of time and continuance. The deputy public defender said she would discuss the matter with her client and went into the courtroom holding area to speak with petitioner.

The door to the holding area was slightly ajar. A bailiff was seated nearby and another criminal matter was being heard by the court. The prosecutor told her investigator to sit next to the holding cell and listen to the conversation between defense counsel and petitioner. The bailiff, a 24-year veteran of the Ventura County Sheriff's Department with 14 years experience as a bailiff, testified that the investigator "... appear[ed] to be listening in on the conversation that was going on ... in the vicinity of five minutes or so." At the conclusion of the conversation, the investigator walked back to the prosecutor and whispered something to her.

Petitioner did not stipulate to a continuance. The trial court granted, over his objection, the prosecutor's motion to continue the case.

The Investigations

The next day, the bailiff, who had observed what he considered to be eavesdropping, told the judge what had occurred and prepared a crime report. The Ventura County District Attorney conducted an internal investigation and removed the prosecutor and the investigator from the case.

The Attorney General also commenced an investigation. On March 7, 1994, a report was prepared by Dennis Flood, a special agent with the Attorney General's office. It stated as follows: The investigator refused to offer any explanation of her conduct or disclose what she overheard. The prosecutor, in the presence of her counsel, spoke to Flood. She said that she had heard a loud male voice coming from the holding cell and that she feared for the public defender's safety. Her "... sole purpose for sending ... [the investigator] over to the cell area was one of safety...." She claimed further that because the bailiff appeared to be inattentive, she told the investigator to find out what was happening. The prosecutor said she had a very strong case and did not send the investigator over to the holding cell for the purpose of gathering information. The investigator told her that petitioner was not going to agree to a continuance. Flood asked the prosecutor why the investigator had not discussed the issue of the deputy public defender's safety. The prosecutor did not answer.

The prosecutor offered an inconsistent explanation to the Ventura County District Attorney. In a report dated January 29, 1994, the prosecutor told an agent for the district attorney that her "intent in requesting ... [the investigator to] reposition herself was merely so that ... [the investigator] could hear if Morrow made any statement about continuing the trial date until the following Tuesday to accommodate her scheduled ski trip."

In a report dated March 18, 1994, the investigator told an agent for the district attorney that she only heard petitioner tell his attorney that he would not agree to a continuance and that the alibi witness' recantation was untruthful.

The Attorney General filed criminal charges against the prosecutor and the investigator for eavesdropping upon a conversation between an in-custody defendant and his or her attorney. (Pen.Code, § 636.)

The prosecutor and the investigator successfully demurred to the information. The charges were dismissed on the grounds that section 636 was ambiguous and only applied to electronic interceptions of private conversations. The Attorney General did not appeal therefrom.

The Motion to Dismiss

Petitioner moved to dismiss because of prosecutorial misconduct. Attached to the motion were redacted copies of the investigative reports that had been prepared by the Ventura County District Attorney and by the Attorney General. The hearsay explanations of the prosecutor and the investigator were offered to prove misconduct. It was the only evidence available to petitioner.

Petitioner called the prosecutor and the investigator as witnesses at the hearing on the motion to dismiss. They exercised the right to remain silent and refused to answer questions claiming the privilege against self-incrimination. The privilege was sustained. ²

The prosecution did not dispute any of the material facts relied upon by petitioner. It took the position that dismissal was inappropriate because petitioner had not proven prejudice by the misconduct. (See United States v. Morrison (1981) 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564, 569; People v. Zapien (1993) 4 Cal.4th 929, 967, 17 Cal.Rptr.2d 122, 846 P.2d 704; People v. Benally (1989) 208 Cal.App.3d 900, 908-911, 256 Cal.Rptr. 483.) Respondent court repeatedly denied petitioner's requests to reveal, in camera, the content of the conversation that was overheard by the investigator.

The deputy public defender made a lengthy argument as to why the case should be dismissed. Two passages are particularly insightful: "The conduct in Boulas [Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 233 Cal.Rptr. 487] is outrageous, but in my mind it certainly is not as outrageous as the conduct in Mr. Morrow's case where we were in the sanctity of the courtroom where everyone in this country expects to be the one place that justice is meted out, and yet what we have is a prosecutor directing her investigator to violate the defendant's most sacred right of having a private consultation with his attorney.... [p] I think it's upsetting to every client of every public defender and every criminal defense attorney in this county to think that you cannot have a confidential interview or conversation with your attorney in this building in a custody holding area and believe that that's going to stay confidential and that the courts are going to allow a prosecutor to direct, deliberately have her investigator go and listen in to that conversation, go back and communicate it and that that's okay, no harm, no foul, this is an in-custody client, so what."

The prosecution's argument focused on a claimed lack of prejudice. It also argued "... that the issue of [the prosecutor's] intent is not part of the court's determination with respect to a motion to dismiss. It's just simply not relevant."

Respondent Court's Ruling

On June 10, 1994, respondent court denied the motion to dismiss. Relying on People v. Benally, supra, 208 Cal.App.3d 900, 908-911, 256 Cal.Rptr. 483, it ruled that dismissal was inappropriate because petitioner had not been prejudiced. It found that the eavesdropping had occurred and that confidential matters were discussed. However, respondent court found that there was no evidence that the investigator overheard any essential or strategic information. Respondent court said that the investigator only heard that petitioner refused to have the matter continued and that the alibi witness had lied.

Presumption of Prejudice and Burden of...