Newman v. State
| Decision Date | 11 December 2003 |
| Docket Number | No. 3002,3002 |
| Citation | 156 Md. App. 20,845 A.2d 71 |
| Parties | Elsa NEWMAN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Barry H. Helfand, David A. Martella, Rockville, for appellant.
Edward J. Kelley (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee. Argued before DAVIS, ADKINS and GREENE, JJ.
Appellant, Elsa Newman, was convicted in a jury trial before the Circuit Court for Montgomery County, (Rupp, J., presiding) of conspiracy to commit murder in the first degree, attempted murder in the first degree, first degree assault, first degree burglary, and use of a handgun in the commission of a felony or crime of violence. She was sentenced to a total of twenty years incarceration. Appellant filed a timely appeal in this Court alleging a panoply of errors.
Perceiving no reversible error, we affirm the conviction.
Appellant presents eight questions of varying degrees of validity for our review:
1. Did the trial court err in denying appellant's motion to order the disqualification of the Montgomery County State's Attorney's Office for violations of the attorney-client privilege?
2. Did the trial court err in allowing appellant's domestic relations attorney to testify about confidential attorney-client communications?
3. Did the trial court err in denying appellant's requested voir dire concerning the potential bias of members of the jury panel?
4. Did the trial court err in denying appellant's motion for a mistrial upon the State's eliciting testimony about appellant's exercise of her constitutional rights to counsel?
5. Did the court err in allowing the State to introduce evidence in its case in chief?
A. Characterizations of Ms. Newman and her relationship with Ms. Landry.
B. Evidence of an unrelated fraud allegedly committed by appellant and Ms. Landry.
C. Testimony about the credibility of child abuse allegations against appellant's ex-husband and in limiting appellant's ability to cross-examine that opinion.
D. Testimony about the conveyance of funds between Ms. Newman and Ms. Landry during the divorce proceedings.
6. Did the trial court err in denying appellant's requested instructions regarding the law of self-defense?
7. Was the evidence sufficient to convict appellant of any count?
8. Did the trial court err in denying appellant's motion for a new trial
After a six-day jury trial, appellant was found guilty of a number of charges arising from the attack on appellant's ex-husband, Arlen Slobodow, by her best friend, Margery Landry.1 During the trial, the State proved to the jury's satisfaction that appellant and Landry conspired to kill Slobodow because they believed he was sexually abusing the couple's two sons, Lars and Herbie.
The State's theory of the case was that appellant and Landry had grown increasingly desperate to protect the two boys from Slobodow after their numerous complaints of child abuse were closed "unfounded." In their desperation, appellant and Landry conspired to have Landry break into Slobodow's house and kill him while appellant was in New Jersey at a family wedding. The plan also included planting child pornography in Slobodow's house to "prove" that the allegations of child abuse were correct, thereby vindicating appellant and returning custody of the children to her.
The State offered testimony of appellant's former domestic relations attorney, Steven Friedman, that appellant and Landry had conspired to kill Slobodow, as well as to kill one of the children in his presence in an effort to "save" the other. They also offered the testimony of Friedman's former secretary, Sandra Ashley, who said that, while at dinner together, appellant told her that Landry had connections to organized crime and could obtain an untraceable gun. She also told Ashley that she wanted to kill Slobodow.
Appellant took the stand in her own defense and denied the conspiracy. She argued that the evidence establishing her motive, the bitter custody dispute, was also evidence of why appellant would know that she would be a prime suspect and, therefore, likely have her children taken from her. Furthermore, the threats attributed to her were made during a divorce/custody battle, and taken in context, were emotional outbursts not uncommon to the situation. Lastly, she contended that Landry had her own reasons for wanting to kill Slobodow because of her close relationship as Godmother to the boys.
With these theories in mind, we turn to the facts of the evening in question. On January 6, 2002, Arlen Slobodow was asleep in his bed with his five-year old son Lars, when he was pulled from his bed by an assailant wearing all black and a mask. He immediately heard two gunshots and felt a pain in his right leg. One of the bullets went through Mr. Slobodow's right leg above the knee. A struggle ensued in which Slobodow pulled the mask off of the assailant and discovered Margery Landry.
Slobodow knocked the gun out of Landry's hands and attempted to call the police. Landry grabbed the phone and hit Slobodow about the head and face with the receiver. Slobodow yelled for his sons to call the police. Landry instructed the children to return to their beds. She then left the bedroom.
After Landry left the bedroom, Slobodow dragged himself to the kitchen to try and call the police. While in the kitchen, Landry again attacked him. He was able to bite her hand and she fled. The police responded at 4:31 a.m. and found Slobodow in the dining room with his two sons.
Investigation at the house revealed a broken basement window believed to be the entry location. Blood was found on the windowsill and on leaves just outside of the window. A trail of blood was found leading down the stairs to the kitchen, to the basement, and out the open window. In the basement, the police found a fanny pack containing a box of .9 MM ammunition, a pornographic video tape, books, and magazines. Landry's finger prints were found on the books and ammunition.
In the bedroom, police found signs of a struggle. There was blood on the floor of the room and a potted plant had been overturned. The police found a Smith & Wesson .9 MM handgun with the serial number scratched out in the room with an empty magazine and two shell casings. Above the bed were two bullet holes. A black knit mask with a pair of eyeglasses inside and a torn latex glove were also found in the room.
Additional facts will be provided throughout the discussion section.
Appellant's first ground for appeal is that the trial court erred by not disqualifying the entire Montgomery County State's Attorney's office for violations of the attorney-client privilege during the discovery process. The violations allegedly occurred during the screening of information removed from appellant's home pursuant to search warrants issued after the shooting of Mr. Slobodow.2
Appellant argues that the privileged documents taken from her home were "inappropriately inspected" by prosecutors in the State's Attorney's office and that "[t]heir access to the documents gave them insight into this case that they otherwise might not have had." In short, appellant's argument is that the State relied on the contentious divorce and custody battle between appellant and the victim to show motive for the attempted murder, the State's access to the privileged documents allowed them greater insight into the proceedings, and the proper remedy for the violation is disqualification of the entire Montgomery County State's Attorney's office. For the following reasons we do not agree.
At the beginning of the June 14, 2002, hearing on the Motion to Disqualify, the trial court properly evaluated the issue. The court said that the State relied on the divorce and custody issues in their case in chief:
[A]ccordingly, unless counsel disagrees, it appears to me that there is a substantial relationship which exists between the subject matter of the privileged communications which were seized pursuant to the search warrant and the prosecution of [appellant] which would make it incumbent upon the State to have established a screening device to preclude the prosecutors in this case from having access or using the information which is privileged communication between Ms. Newman and her attorney or attorneys in the divorce and custody proceedings.
The trial court then heard evidence to determine the adequacy of the screening process.3
Former Assistant State's Attorney Thomas Eldridge testified that a screening system was established by the State's Attorney's office in which "thousands" of documents were separated into three categories: "clearly privileged," "could be privileged," and "clearly not privileged."4 Deputy State's Attorney Katherine Winfree, the lead prosecutor in the case, instructed Mr. Eldridge to review the documents in accordance with the above screening procedure.
Mr. Eldrige reviewed the documents for two days at the Bethesda police district before they were moved to a locked room at the State's Attorney's office. When asked to characterize his ability to identify "privileged," "potentially privileged," and "not privileged," documents, Mr. Eldridge testified that:
Well, I found it was, it was easy to see the things that were clearly privileged and so, I found it fairly easy when they were clearly communications to put those into that category. I found it more difficult because I believe Ms. Newman's a lawyer and because many of the things that she did with her written material weren't necessarily clearly directed at her lawyer, those were the ones that were a little harder to categorize, and I tried to err on the side of considering those potentially privileged because, for all I knew, they did, in fact, get sent to one of her lawyers. So, I tried to be conservative, to answer your question.
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Holloway v. Commonwealth of Va..
...to create theories that the evidence does not support. This Court should “not base its holdings on ‘what ifs.’ ” Newman v. State, 156 Md.App. 20, 845 A.2d 71, 99 (2002), rev'd on other grounds, 384 Md. 285, 863 A.2d 321 (2004). Were we to do so there is no limit to the theories that may ari......
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Holloway v. Commonwealth Of Va.
...create theories that the evidence does not support. This Court should “not base its holdings on ‘what ifs.’ ” Newman v. State, 156 Md.App. 20, 845 A.2d 71, 99 (Md.Ct.Spec.App.2002), rev'd on other grounds, 384 Md. 285, 863 A.2d 321 (Md.Ct.App.2004). Were we to do so there is no limit to the......
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Baker v. State
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