Rubin v. State

• Decision Date: 01 September 1991
• Docket Number: No. 65,65
• Citation: 602 A.2d 677,325 Md. 552
• Parties: Lisa Joyce RUBIN v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 552

325 Md. 552

602 A.2d 677

Lisa Joyce RUBIN v. STATE of Maryland.

No. 65, Sept. Term, 1991.

Court of Appeals of Maryland.

March 6, 1992.

Motion for Reconsideration Denied April 8, 1992.

Alan M. Dershowitz, Joseph M. Lipner, Jack Zaremski, Rosanna Cavallaro; Claudia M. Marbach, Cambridge, Mass.; Barry Helfand, Rockville; Fred R. Joseph; and Alan Goldstein, Greenbelt, all on brief, for appellant.

Gary E. Bair, Asst. Atty. Gen. and J. Joseph Curran, Jr., Atty. Gen., both on brief, Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

RODOWSKY, Judge.

The principal issues in this murder case involve the evidentiary privilege for confidential communications between attorney and client. Those issues include determining how the privilege operates with respect to tangible evidence received, or simply observed, by counsel or counsel's agent.

Appellant, Lisa Joyce Rubin (Rubin), was found guilty by a jury in the Circuit Court for Montgomery County of the premeditated murder of her estranged husband, Timothy John Warner (Warner), and of the use of a handgun in a crime of violence. Rubin shot and killed Warner on April 24, 1990, in a wooded area in northern Montgomery County. The jury rejected Rubin's self-defense contention. The court sentenced Rubin to life imprisonment, suspended all but thirty years to be followed by five years probation, and made concurrent a twenty year sentence on the handgun charge. Rubin appealed to the Court of Special Appeals. We issued the writ of certiorari on our own motion prior to consideration of the matter by the intermediate appellate court.

Analysis of the attorney-client privilege issues requires a full statement of the facts. Rubin's appeal also complains of the rejection of a defense requested instruction and of the State's rebuttal argument. Additional facts concerning those latter contentions will be stated in Parts V and VI, infra.

Rubin and Warner met in the spring of 1979. She was then twenty-three years old and had graduated summa cum laude from college in 1975. He was a seventeen year old high school student. They married in May 1980. Rubin, who is apparently of independent means, supported the couple while Warner obtained a physics degree. At the time of his death Warner was employed at the Goddard Space Center of the National Aeronautics and Space Administration (NASA).

Rubin's self-defense theory evolves out of an affair which Rubin had carried on for some time with one William Glisson (Glisson), a Secret Service agent. Rubin told Warner of her affair with Glisson. Rubin testified that she began her affair with Glisson only after she learned, by reading Warner's diary sometime in 1985, that Warner had been having an affair. She said that Warner later destroyed the diary.

Rubin ended the relationship with Glisson after approximately one and one-half years. According to Rubin, Glisson was extremely jealous. One day Glisson came to the Warner-Rubin home, argued with Rubin, allegedly grabbed her forcefully by the wrists, and also choked her. Rubin claimed permanent nerve damage to her hand as a result of the assault, and she and Warner sued Glisson in the Circuit Court for Montgomery County for damages. In 1989, while the personal injury action was being tried, someone attempted to murder Glisson by placing cyanide in a bottle of cola in Glisson's refrigerator. The attempted murder was investigated by the Montgomery County Police Department, but no arrests were made.

Rubin testified that Warner hated Glisson for having hurt Rubin, and that in January 1990 Warner admitted to Rubin that Warner had attempted to poison Glisson. The admission, Rubin said, was precipitated by a visit to Warner by an FBI agent inquiring about the attempt on Glisson's life.

Warner moved out of the couple's home on March 11, 1990, leaving behind the Mercedes automobile that Rubin had purchased for him. On March 15, 1990, Rubin engaged Prudential Associates, Inc. (Prudential), a licensed private investigating agency, to prove that Warner was committing adultery. The president of Prudential is Robert Lawrence Miller (Miller), and one of Prudential's investigators was Robert Leopold (Leopold). Leopold was to become a witness for the State in the instant matter.

On March 17 Rubin placed a purchase order at a gun shop for a .38-caliber, Smith & Wesson "LadySmith," five shot revolver. At the same time she applied for the necessary permit from the Maryland State Police.

Warner had moved into the residence in Laurel, Maryland of Debra Ann Servin (Servin), a co-worker at NASA who had recently become separated from her husband. Servin described Rubin's visits to Servin's residence and to NASA, which together with Rubin's notes to Warner, formed the basis for the State's argument that Rubin's motive for murdering Warner was resentment at being scorned.

By April 16 Prudential had completed gathering evidence, including photographs, of the Warner-Servin relationship. The agency submitted its report to Jeffrey Greenblatt, Esq. (Greenblatt), the attorney whom Rubin had engaged to be her principal counsel in the domestic matter with Warner.

Rubin's initial contact at Prudential had been with Miller. During the course of the investigation, Miller developed a "personal relationship" with Rubin. They would have late night dinners together, she would confide in him concerning personal problems, and Miller assisted Rubin in finding a new residence.

Between the fifteenth and thirtieth of March, Rubin told Miller of an admission to her by Warner that he had attempted to poison Glisson. Miller was concerned that Rubin might be exposed to criminal prosecution for failing to report this information to the authorities. Miller advised Rubin to consult counsel, and he recommended Darrel L. Longest, Esq. (Longest) of Longest and Gavin. Longest maintained his office in the same group of townhouses in Rockville as did Prudential. Longest had represented Prudential, Miller and Leopold in various legal matters, Miller had recommended Longest as counsel to Miller's clients, and Longest exclusively used Prudential for investigations required in his law practice.

Rubin, pursuant to an appointment made on March 30, met with Longest on April 4. She paid him a fee of $5,000 which Longest said was not only for advice concerning the possible accessoryship problem, but also for advice concerning financial matters and for assistance to be rendered to Greenblatt in the forthcoming divorce case. Longest, who is a former Deputy State's Attorney for Montgomery County, spoke on behalf of Rubin to Matthew Campbell (Campbell), the then Deputy State's Attorney. By letter of April 10, received by Longest April 16, Campbell represented that the State would not prosecute Rubin if she "tells the truth and cooperates with the police in the investigation" of the attempted murder of Glisson.

At the motions hearing Longest testified that on one occasion prior to the shooting when Rubin was consulting with him, Rubin stated that Miller had related something to her which she had related previously in confidence to Longest. Rubin, Longest testified, expressed surprise that Longest would tell Miller. Longest explained to Rubin that Miller was "part of the team," that Rubin could "tell [Miller] anything and [Longest] can tell him anything, and it is not going to go anyplace." Miller testified at the motions hearing that, as a result of Miller's having referred Rubin to Longest, Prudential had not done, nor had it been asked by Longest to do, any field work investigating the claim that Warner had attempted to kill Glisson.

On April 10, after her gun permit had been issued, Rubin took possession of the LadySmith revolver. At that time she also purchased and took possession of a .22-caliber, seven shot, semi-automatic, Beretta pistol and fifty rounds of ammunition for each handgun. Rubin testified that, because she was afraid of Warner, she intended to carry the smaller semi-automatic on her person when meeting with Warner, while keeping the larger revolver in the drawer of her bedside table.

Following up on the State's Attorney's letter to Longest, Detective Charles M. Shawen (Shawen) of the Montgomery County Police Department met with Longest and Rubin on April 20. Longest did most of the talking. Shawen's unarticulated reaction to the disclosures was skeptical, because of the impending divorce. The detective proposed that Rubin submit to a polygraph examination. Longest said that he and Rubin would discuss that suggestion, and the matter was left on that basis.

On Monday, April 23, Warner telephoned Rubin from work. They agreed that their old, large, allergy-plagued dog, Mutley, should be killed. They agreed to meet for that purpose the next evening at 6:00 p.m. at the Peachtree Veterinary Clinic in northern Montgomery County, where the couple was well known. In the conversation Warner also said that he wanted to discuss divorce when they met.

At 11:30 p.m. on the twenty-third, Rubin met Miller at a diner in Rockville for supper. Miller's memorandum of that meeting, which Rubin introduced at the suppression hearing, reflects that Rubin was saying that Warner still wanted to kill Glisson, that Warner had buried in his mother's yard evidence, indicated to be keys, linking him to Glisson's attempted murder, and that Warner was preparing to leave the area because he had submitted his resignation to NASA and had removed $50,000 from the couple's safety deposit box. Miller's memorandum comments that "the story keeps getting more and more complicated."

Rubin and Warner met at the Peachtree Clinic about 6:00 p.m. on April 24, after Warner had left Servin to wait for him at a shopping center. From all of the evidence, including particularly a trail of the victim's blood leading up to the body, two clusters of five, spent, .38-caliber cartridges next to the...