Newman v. State
Decision Date | 13 December 2004 |
Docket Number | No. 31,31 |
Citation | 384 Md. 285,863 A.2d 321 |
Parties | Elsa NEWMAN v. STATE of Maryland. |
Court | Maryland Court of Appeals |
Barry H. Helfand(David A. Martella, Rockville; Michael A. Wein, Greenbelt), on brief, for petitioner.
Byron L. Warnken, Michael P. Lytle, Baltimore, brief of the Maryland Criminal Defense Attorneys' Assoc., for petitioner, amicus curiae.
Edward J. Kelley, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.
Argued before BELL, C.J., and WILNER, CATHELL, HARRELL, BATTAGLIA, John C. ELDRIDGE(Retired Specially Assigned)LAWRENCE F. RODOWSKY(Retired Specially Assigned), JJ.
This case presents the issue of the proper scope of the attorney-client privilege and whether a curative instruction adequately counteracted the prejudice of eliciting testimony about the exercise of a defendant's Miranda rights.Because we find that the communications between Elsa Newman[hereinafter "Newman"] and her former attorney, Stephen Friedman[hereinafter "Friedman"], at issue in the present case fall within the attorney-client privilege and are not subject to the crime-fraud exception, we reverse the decision by the Court of Special Appeals and remand the case to the Circuit Court for a new trial.As guidance for the trial court on remand, we also will address whether the curative instruction adequately dispelled the prejudice caused by eliciting improper testimony about the exercise of Newman's Miranda rights.
Newman and Arlen Slobodow[hereinafter "Slobodow"] married in 1990, and thereafter they had two sons together, Lars and Herbie.In 1999, Newman's marriage to Slobodow deteriorated and the couple began divorce and custody proceedings in the Circuit Court for Montgomery County, Maryland during which Newman was represented by Friedman.During the course of Friedman's representation of Newman in the spring of 2001, Friedman asked Newman's close friend, Margery Landry[hereinafter "Landry"], to be present in his meetings with Newman for a "cool head in the room."Landry and Newman discussed various plans involving harming Newman's children and blaming Slobodow while in Friedman's presence.
On August 31, 2001, Newman met with Friedman in preparation for a custody hearing on September 4, 2001 before Circuit Court Judge James Ryan.At one point during her meeting with Friedman, Newman stated,
Friedman disclosed to Montgomery County Circuit Court Judge Louise Scrivener the statements made by Newman the previous Friday.After Judge Scrivener informed Judge James Ryan of Friedman's disclosure, Judge Ryan announced the substance of Friedman's disclosure during the custody hearing on September 4, 2001.Newman was granted supervised visitation and Friedman's appearance as her counsel of record was stricken.The trial on the merits was postponed until December 7, 2001, and then again to January 28, 2002.
Prior to the trial on the merits, on January 7, 2002, at approximately 3:30 a.m., Landry entered Slobodow's house through an unlocked basement window carrying pornographic materials and a Smith and Wesson 9MM handgun.In Slobodow's bedroom, she found him asleep in bed and fired two shots hitting Slobodow once in the right leg.Slobodow struggled with Landry, pulling off her mask, and Landry fled the bedroom.Slobodow went downstairs, was attacked once more by Landry, and during the altercation bit Landry's finger.Landry left the house.
Later that morning, Montgomery County Police arrested Landry at her home.On January 9, 2002, the State of Maryland filed charges against Newman for conspiracy to commit first degree murder and conspiracy to commit assault in the first degree, and Newman was arrested the following day.Thereafter, Landry pled guilty to assault, burglary, reckless endangerment, use of a handgun in the commission of a felony, and obliterating the serial number on a gun.On December 17, 2002, she was sentenced to fifty years imprisonment, with all but twenty years suspended.
On April 4, 2002, Newman appeared in the Circuit Court for Montgomery County, Maryland and entered a plea of not guilty.On June 28, 2002, the Circuit Court held a pretrial hearing in which it considered the State's oral Motion in Limine to compel Friedman to testify about the matters that he had disclosed to Judge Scrivener.The State called Friedman to the stand.Newman requested that the court clear the courtroom prior to Friedman's testimony to preserve the confidentiality of Friedman's testimony prior to the court's ruling on its status under the attorney-client privilege.After the judge rejected that request, Newman asserted that the attorney-client privilege precluded Friedman's testimony, for which she was granted a standing objection.At the close of Friedman's testimony concerning his relationship with Newman and the content of his disclosure to Judge Scrivener pursuant to Rule 1.6 of the Maryland Rules of Professional Conduct,1the court ruled that Friedman acted reasonably in disclosing Newman's statements under Rule 1.6 and that his disclosure obviated Newman's attorney-client privilege regarding the disclosed statements.
On August 2, 2002, the State called Friedman to the stand at Newman's trial.Under court order, Friedman testified as follows:
(Footnotes added).Newman once again asserted that the attorney-client privilege precluded the admission of Friedman's testimony, which the court rejected.
During the trial, the State also called Detective Mercer, the officer who arrested Newman, to testify in its case in chief, and asked her, "And what rights did you advise [Newman] of?"Detective Mercer responded, Newman objected and moved for a mistrial.The trial court denied her motion and instead gave the jury the following curative instruction:
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