Pratt v. State

• Decision Date: 07 June 1978
• Docket Number: No. 857,857
• Citation: 387 A.2d 779,39 Md.App. 442
• Parties: Margaret Melton PRATT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 442

39 Md.App. 442

387 A.2d 779

Margaret Melton PRATT v. STATE of Maryland.

No. 857.

Court of Special Appeals of Maryland.

June 7, 1978.

Robert C. Heeney and John M. Quinn, Rockville, with whom were Heeney, McAuliffe, Rowan & Abell, Rockville, on the brief, for appellant.

Stephen Rosenbaum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Laurence D. Beck, Asst. State's Atty. for Montgomery County, on the brief, for appellee.

Argued before THOMPSON, LOWE and COUCH, JJ.

THOMPSON, Judge.

The appellant, Margaret Melton Pratt, was convicted in the Circuit Court for Montgomery County of murder in the second degree and use of a handgun in the commission of a crime of violence. A fifteen year sentence, seven of which were suspended, was imposed on the murder charge along with a concurrent five year sentence for the handgun conviction.

The murder scenario which led to this appeal began on October 22, 1976 when appellant removed a .32 caliber automatic pistol from her husband's business vault. ¹ At that time she was emotionally distressed and planned to use the gun to commit suicide. After removing the weapon appellant went home, stopping only at a local grocery store to purchase some food for the evening meal. When she arrived home, her husband, William Pratt, who had left work early because of illness, was watching television. Appellant prepared the evening meal and after dinner she and her husband spent an uneventful evening watching television before retiring for the night.

Appellant could not sleep thinking about her contemplated suicide and the consequences of such an act on her husband because she handled the family finances, and tended to his personal needs which were many because of general ill health. There was also some question as to the financial position of the business which worried her. At approximately 7:00 the next morning, after a sleepless night, appellant entered her husband's bedroom, placed a gun against his head, and shot him. After the initial shot was fired Mr. Pratt began to breathe erratically so appellant fired a second shot to end any possible suffering.

After the shooting, appellant packed an overnight bag and traveled to the farm of friends near Front Royal, Virginia. Her dog was buried on the farm and she spent two or three hours praying at its gravesite. As the friends were not at home, she spent the night in a nearby motel before returning to her home the next day. When appellant arrived home, she wandered around in her car visiting the neighborhood in which she and her husband formerly lived. Realizing she would eventually be apprehended, she went to the police and informed them of her crime. After the police verified the commission of the murder, appellant was formally arrested and ultimately transported to Springfield Hospital Center for psychiatric evaluation.

During the trial the defense did not contest the accusation that appellant had killed her husband, but contended she was insane at the time of the crime. In support of her contention appellant presented two psychiatrists, Dr. Gerald Polin and Dr. Leon Yochelson. They testified that at the time of the crime appellant was suffering from a mental illness and lacked substantial capacity to conform her conduct to the requirements of the law.

In order to counter this testimony the State produced three psychiatrists. All expressed the opinion that appellant was suffering from a mental disorder at the time of the offense; two of the three psychiatrists felt she was legally responsible for her act.

On appeal appellant attacks the validity of her convictions, contending the trial judge committed reversible error in:

(1) Admitting the testimony of Dr. Brian Crowley, one of the State's psychiatrists, who originally examined appellant at the request of defense counsel;

(2) Refusing to admit testimony corroborative of the factual basis of the opinions given by the defense psychiatrists, even though the State attacked their basis of knowledge;

(3) Refusing to admit a video tape of an interview between appellant and Dr. Polin (4) Admitting a report written by Dr. McClelland stating appellant was criminally responsible for her acts, after he was unable to express an opinion on the question at trial;

(5) Unduly restricting cross-examination of a police officer concerning the amount of money appellant had at the time of her arrest;

(6) Admitting pictures of the body of the deceased; and

(7) Denying her right to argument of counsel regarding a possible recommendation of mercy by the jury.

I Dr. Brian Crowley's Testimony

One of the three psychiatrists presented by the State, Dr. Crowley, had originally been retained by the defense. Dr. Crowley testified that although appellant was suffering from a mental disorder at the time of the offense, she did not lack substantial capacity to conform her conduct to the requirements of the law. Appellant mounts a multi-faceted attack on the admission of this testimony arguing it should have been excluded on the grounds of: (1) the attorney-client privilege, (2) the psychiatrist-patient privilege, or (3) the work product doctrine. We conclude admission of the testimony violated the attorney-client privilege so we will not discuss the other arguments in any detail. ²

The attorney-client privilege was defined in Harrison v. State, 276 Md. 122, 135, 345 A.2d 830, 838 (1975) as follows:

" '(1) Where legal advice of kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.' " Quoting 8 J. Wigmore, Evidence § 2292 at 554 (McNaughton rev. 1961).

The theory behind the creation of the privilege is that a lawyer can act effectively only when he is fully advised of the facts and the client's knowledge that a lawyer cannot reveal his secrets promotes full disclosure. Harrison v. State, supra, 276 Md. at 133-134, 345 A.2d at 837; Trupp v. Wolff, 24 Md.App. 588, 608-609, 335 A.2d 171, 183-184, cert. denied, 275 Md. 757 (1975). The privilege is not confined in scope to communications made solely between an attorney and his client but includes communications made to agents employed by the attorney, such as a stenographer, secretary, clerk, or any employee necessary for effective operation. 8 J. Wigmore, Evidence § 2301 at 583; C. McCormick, Handbook of the Law of Evidence § 91 at 188-189 (2d ed. E. Cleary 1972).

In cases where a question arises concerning a client's criminal responsibility for an act, a psychiatrist is indispensable for his help in the planning and preparation of the defense as well as his testimony at trial. The attorney could hardly explore the basis of adverse testimony intelligently, without such help. See United States v. Taylor, 437 F.2d 371, 377 n. 9 (4th Cir. 1971); United States v. Alvarez, 519 F.2d 1036, 1046 (3rd Cir. 1975); United States ex rel. Edney v. Smith, 425 F.Supp. 1038, 1047-1048 (E.D.N.Y.1976), aff'd mem. 556 F.2d 556 (2nd Cir. 1977); People v. Lines, 13 Cal.3d 500, 119 Cal.Rptr. 225, 531 P.2d 793, 800 (1975); United States v. Kovel, 296 F.2d 918, 921 (2nd Cir. 1961) (Friendly J.). ³

As the assistance of a psychiatrist is essential where the criminal responsibility of a client is in question, we hold that communications made to a psychiatrist for the purpose of seeking legal advice are within the scope of the attorney-client privilege. This position is supported by the overwhelming majority of courts and commentators that have considered the question. ⁴

The State, not seriously disputing that communications made to a psychiatrist in conjunction with the preparation of an insanity defense should be afforded the protection of the attorney-client privilege, argues appellant waived any claim of privilege by placing her sanity in issue. Although there can be no question that a client may expressly or impliedly waive the attorney-client privilege, Harrison v. State, supra, 276 Md. at 136-138, 345 A.2d at 839; Shawmut Mining Co. v. Padgett, 132 Md. 397, 404, 104 A. 40, 43 (1918), we do not think a waiver occurs when an accused places his sanity in issue. There is no precise formula for determining whether the privilege has been waived in a particular case. In deciding this question various factors such as the client's intent to waive, fairness, and consistency of conduct must be considered in view of the purpose of the privilege. See Harrison v. State,supra, 276 Md. at 138, 345 A.2d at 840; 16 Minn.L.Rev. 818, 823 (1932).

In arguing that fairness dictates that the privilege should be deemed to have been waived the State relies on the rationale of People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976). That court concluded there was no need to protect communications made to a psychiatrist once the issue of the client's sanity was placed in issue. The court's reasoning was predicated on several factors. First, under New York law once an accused pleads insanity he is required to disclose the underlying basis of his affliction to prosecution psychiatrists. ⁵ ] Thus, the court reasoned that if an insanity plea is entered the facts in question will be available to the prosecution in any event and, as a result, the waiver rule would not deter a client from communicating with a psychiatrist hired to assist his attorney. Second, the court noted that under the work product doctrine an attorney could consult a psychiatrist without fear of future disclosure as long as the attorney, and not the client, conveyed the necessary facts to the expert. ⁶

Despite Edney we think the better approach is that the client does not waive the attorney-client privilege by placing sanity in issue. See particularly, United States v. Alvarez, supra at...