People v. Mitchell

• Decision Date: 30 March 1983
• Citation: 461 N.Y.S.2d 267,58 N.Y.2d 368,448 N.E.2d 121
• Parties: , 448 N.E.2d 121 The PEOPLE of the State of New York, Respondent, v. John C. MITCHELL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 267

461 N.Y.S.2d 267

58 N.Y.2d 368, 448 N.E.2d 121

The PEOPLE of the State of New York, Respondent, v. John C. MITCHELL, Appellant.

Court of Appeals of New York.

March 30, 1983.

Alfred P. Kremer, Rochester, for appellant.

Donald O. Chesworth, Jr., Dist. Atty., Rochester (Melvin Bressler, Rochester, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted after a jury trial of murder, second degree, for the stabbing death of a prostitute named O'Hare McMillon. He contends that his conviction must be reversed because it rests on evidence of privileged statements he made in his lawyer's office and statements improperly solicited by a police guard while he was in custody, and because the court's charge to the jury violated the rule in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. T Appellate Division affirmed the judgment by a divided court. The majority agreed with the trial court that defendant's statements made in the lawyer's office were not privileged and that his statements to the jail guard were spontaneous. It held that the court's charge though erroneous was harmless (People v. Mitchell, 86 A.D.2d 976, 448 N.Y.S.2d 352). The dissenter at the Appellate Division voted to reverse on the Sandstrom issue and to conduct a hearing on the question of privilege. There should be an affirmance.

Defendant was a resident of Waterloo, New York, and, at the time these events occurred, he was under indictment for causing the stabbing death of his girlfriend, Audrey Miller, in February, 1976. He was represented on that charge by Rochester attorney Felix Lapine. In January, 1977 defendant went to Rochester to take care of some personal matters and registered at the Cadillac Hotel. On the evening of January 5 while sitting at the hotel bar, he met O'Hare McMillon. They had two or three highballs and then were seen to leave the bar about 11:00 p.m. and take the elevator to the floor on which Mitchell's room was located. No one saw either of them leave defendant's room that night or the next morning, but in the afternoon of January 6, on a tip from attorney Lapine, the police went to defendant's hotel room and found the partially clad dead body of O'Hare McMillon on the bed. She had been stabbed 11-12 times in the face, chest and back. At least four of the wounds were sufficient to cause her death by exsanguination.

After leaving the hotel room that morning, defendant went to attorney Lapine's office. Lapine was not in but defendant met and spoke to a legal secretary, Molly Altman, in the reception area. She testified that he seemed nervous and as if he was looking for someone. Apparently he could not find whomever it was he was looking for so he left only to return a minute later and start telling her about what happened the night before. She testified that he said: "he wanted to go out and have a last fling * * * he had been out drinking and met a girl and then he woke up in the morning and she was dead. He had stayed there all night and then he walked out again".

While he was talking to Ms. Altman, Judith Peacock, another legal secretary, enter the reception area. She testified that defendant was kind of rambling on but he said that: "he had laid next to someone all night and they didn't move, and he [was] in a bar and * * * in a hotel * * * this person who he had laid next to was black and he was worried because when the black people found out about it, they protect their own and he would be in danger". She also testified that he muttered something about a knife.

Ms. Pope-Johnson entered the room. She asked defendant what was wrong and he told her: "that there was a dead body and he felt that he had done it and that the person was dead, that she was dead because of being stabbed."

Shortly thereafter, Lapine entered the office and talked privately with defendant. After defendant left Lapine called the police and had them check defendant's hotel room. The body was discovered, defendant's identification learned from the hotel registration and defendant found and arrested at a bar near the courthouse.

At the police station while defendant was waiting to be processed, he was placed in a room and guarded by a Sergeant Page. He had been given his Miranda rights, and attorney Lapine had visited him privately and advised the police not to interrogate his client. It was Page's testimony, credited by the trial court and the Appellate Division, that defendant, while so guarded, spontaneously asked Page if the police had found the knife and then stated: "I must have killed her like I did Audrey and I don't remember that either." "I picked her up in a bar last night." At trial the statements were redacted to eliminate the reference to Audrey and received by the court as spontaneous statements. That finding of fact was supported by the evidence (see People v. Lynes, 49 N.Y.2d 286, 294, 425 N.Y.S.2d 295, 401 N.E.2d 405; cf. People v. Lanahan, 55 N.Y.2d 711, 447 N.Y.S.2d 139, 431 N.E.2d 624). Molly Altman, Judy Peacock and Robin Pope-Johnson also testified at trial about defendant's inculpatory statements made in the law office after the court determined that the statements were not privileged.

I

The attorney-client privilege, developed at common law, is now contained in our statute (CPLR 4503, subd. [a] ). Its purpose is to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidence will not later be revealed to the public to his detriment or his embarrassment. The court recently formulated the elements of the privilege as follows: "First, it is beyond dispute that no attorney-client privilege arises unless an attorney-client relationship has been established. Such a relationship arises only when one contacts an attorney in his capacity as such for the purpose of obtaining legal advice or services. (CPLR 4503, subd [a]; see, e.g., People v. Belge, 59 A.D.2d 307, 309, 399 N.Y.S.2d 539; United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358-359, supra; 8 Wigmore, § 2292.) Second, not all communications to an attorney are privileged. In order to make a valid claim of privilege, it must be shown that the information sought to be protected from disclosure was a 'confidential communication' made to the attorney for the purpose of obtaining legal advice or services. (Matter of Jacqueline F., 47 N.Y.2d 215, 219, 417 N.Y.S.2d 884, 391 N.E.2d 967, supra; People ex rel. Vogelstein v. Warden of County Jail of County of N.Y., 150 Misc. 714, 717-718, 270 N.Y.S. 362; 8 Wigmore, § 2292.) Third, the burden of proving each element of the privilege rests upon the party asserting it. (Matter of Gavin, 39 A.D.2d 626, 628, 331 N.Y.S.2d 188; Matter of Grand Jury Empanelled Feb. 14, 1978, (3 Cir.), 603 F.2d 469, 474.) Finally, even where the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure. (Matter of Jacqueline F., 47 N.Y.2d 215, 417 N.Y.S.2d 884, 391 N.E.2d 967, supra; People ex rel. Vogelstein v. Warden of County Jail of County of N.Y., 150 Misc. 714, 270 N.Y.S. 362, supra.)" (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69, 431 N.Y.S.2d 511, 409 N.E.2d 983.)

Defendant sought to foreclose the testimony of Pope-Johnson, Altman and Peacock, contending that because of Lapine's prior retainer by defendant for the homicide of his girlfriend there was an ongoing attorney-client relationship which made any statements of defendant uttered in Lapine's office or waiting room privileged. The court excused the jury and conducted a voir dire of Mr. Lapine a Robin Pope-Johnson, Lapine's paralegal, correctly ruling that defendant bore the burden of establishing that his statements were privileged.

Attorney Lapine testified that he was first retained by defendant in February, 1976 and that he was retained by defendant on this indictment the afternoon of January 6, 1977; that he was not present when Mitchell entered his office at noon on January 6 and that he did not know who was. Lapine did not talk with defendant about this charge until after defendant's conversations with Ms. Pope-Johnson, Ms. Mitchell and Ms. Peacock. He testified further that he had one employee working for him at the time, Ms. Pope-Johnson. On cross-examination he testified that he occupied the offices with attorneys named Napier and Bushorr and that he and Napier were partners "[i]n a vague...