Shelton v. State, A92A1089

Decision Date03 December 1992
Docket NumberNo. A92A1089,A92A1089
Citation426 S.E.2d 69,206 Ga.App. 579
PartiesSHELTON v. The STATE.
CourtGeorgia Court of Appeals

Donaldson & Bell, George P. Donaldson, III, R. Ripley Bell, Jr., Albany, for appellant.

Britt R. Priddy, Dist. Atty., for appellee.

BEASLEY, Judge.

An alleged rape occurred on March 15, 1991. On March 15, GBI officers conducted a custodial interrogation of defendant in the presence of his attorney. Defendant refused to answer questions directly but did allow and instruct his attorney to provide information and certain items (clothing and samples of bodily substances) in defendant's presence. The information was given orally. Three days later the attorney delivered a letter to the GBI, signed by him, which stated that it was "to correct misinformation which was given to you in the course of our conversations on Friday of last week." It set out in detail the defendant's version of the incident. The record does not contain a description of the content of the earlier verbal statement.

Just short of four weeks prior to the scheduled trial date, the State subpoenaed the attorney to appear and be sworn as a witness for the State. He moved to quash the subpoena as being in violation of OCGA § 24-9-25 and the federal and state constitutional guarantees of right to counsel. According to the trial court's order on the matter, he added at the hearing, as a ground, the defendant's right against compulsory self-incrimination under both constitutions.

At the hearing, the State limited the scope of its subpoena to cover only the authentication of the letter of March 18 and rebuttal testimony, in the event defendant testified inconsistently "with the verbal statement given by his attorney to the GBI agents." The court allowed the subpoena to stand but ruled that defendant's attorney could be called only to answer questions "regarding the authenticity of the ... letter ... and for the purpose of testifying in rebuttal to any inconsistent statements that the defendant may make in the event he testifies in his own defense." The State acknowledges in its brief that this refers to inconsistencies between what the GBI testifies the attorney related during the interrogation and what the defendant, if he is a witness, testifies was related in his presence.

OCGA § 24-9-25 is not implicated, as the testimony to which the subpoena is limited would not relate to confidential communications but rather to information which defendant instructed his counsel to convey to third persons, the officers. As to this, defendant recognizes, as stated in his brief: "To the extent the defendant's attorney, in the presence of the defendant and with his consent, disseminated information to the agents of the [GBI], there is no claim of privilege." Defendant cites Riley v. State, 180 Ga. 869, 181 S.E. 154 (1935). That is correct, as "[c]ommunications made by a client to an attorney for the purpose of being imparted by him to others do not fall within the inhibitions of the law that render an attorney as a witness incompetent to testify to statements or disclosures made to him by his client." Fowler v. Sheridan, 157 Ga. 271(1), 121 S.E. 308 (1923); Riley, supra at 870(1), 181 S.E. 154. Thus, he is competent to testify. See Washington v. Sullivan, 60 Wash.2d 214, 373 P.2d 474, 476(3) (1962). Compare Gilbert v. State, 169 Ga.App. 383, 384(1), 313 S.E.2d 107 (1984), where the State's cross-examination of defendant's prior counsel invaded the area of communications protected by the attorney-client privilege recognized in OCGA § 24-9-24 and protected by OCGA § 24-9-25.

Defendant does not otherwise challenge, in this effort to quash the subpoena, the admissibility of the oral statements; he challenges only the right of the State to compel his counsel to give rebuttal testimony about them. Is he, at this stage, compellable?

One of the authorities invoked by defendant below and here is the state constitution, which provides: "Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel; ..." Ga. Const.1983, Art. I, Sec. I, Par. XIV. We find no case in Georgia which addresses the clash presented here, between the right of defendant to the effective assistance of his chosen counsel and the interest of the State in its purported need for counsel's testimony, where counsel is allegedly a material witness and the attorney-client privilege does not bar counsel's testimony. Other courts have balanced these two interests. See, e.g., Washington v. Sullivan, supra, 373 P.2d at 477(5); United States v. Gomez, 584 F.Supp. 1185, 1188(1) (D.C.R.I.1984).

It has been uniformly recognized by the courts which have been presented with the question, that requiring the defendant's attorney to testify against him on a contested, material issue so diminishes the persuasive force of his advocacy on behalf of the defendant in the eyes of the jury that the defendant is denied his right to effective assistance of counsel. Williams v. District Court, 700 P.2d 549, 555-556(9) (Colo.1985); Uptain v. United States, 692 F.2d 8, 10(1) (5th Cir.1982); People v. Rodriguez, 115 Cal.App.3d 1018, 171 Cal.Rptr. 798, 800(3) (4th Dist.1981); Missouri v. Reynolds, 564 S.W.2d 874(2) (Mo.1978); Ohio v. Livingston, 30 Ohio App.2d 232, 285 N.E.2d 75, 77(1) (1972); People v. Lathrom, 192 Cal.App.2d 216, 13 Cal.Rptr. 325 (88 ALR2d 785) (2d Dist.1961). Compare United States v. Gomez, supra, 584 F.Supp. at 1190(3) (holding that counsel could continue to represent the defendant other than before the jury); Strong v. Indiana, 538 N.E.2d 924, 925-926(1) (Ind.1989) (allowing another attorney to represent the defendant while counsel was testifying outside the presence of the jury where the testimony did not provide evidence of any elements of the offense charged).

It has also been held that it is only where defense counsel's testimony is both necessary and unobtainable from other sources that counsel may be called as a prosecution witness. Perez v. Florida, 474 So.2d 398, 400(2, 3) (Fla.App.1985); United States v. Crockett, 506 F.2d 759, 760-761(1) (5th Cir.1975); Washington v. Sullivan, supra, 373 P.2d at 476-478(4, 5); see also Williams v. District Court, supra (holding that the government must have a compelling need for counsel's testimony).

"Balanced against [the defendant's "right to complete and unhampered representation"] ... is the possibility that defense counsel's testimony is necessary to the state's case in the interest of justice and for the protection of the...

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7 cases
  • Johnson v. State
    • United States
    • Georgia Court of Appeals
    • September 11, 1996
    ...an instruction that necessarily authorized Johnson's attorney to disclose their existence and content to others. Shelton v. State, 206 Ga.App. 579, 580(1), 426 S.E.2d 69 (1992). It is true, as pointed out by Johnson, that he did not specifically authorize his divorce attorney to disclose th......
  • Moclaire v. State
    • United States
    • Georgia Court of Appeals
    • November 3, 1994
    ...to testify to statements or disclosures made to him by his client." (Citations and punctuation omitted.) Shelton v. State, 206 Ga.App. 579, 580, 426 S.E.2d 69 (1992). In the instant case, there is no evidence that McKenna made the communications to his attorney for the purpose of having the......
  • State v. Hawes
    • United States
    • Nebraska Supreme Court
    • December 13, 1996
    ...A.2d 324 (1994) (in criminal case, compelling need test applies to call attorney professionally involved in case); Shelton v. State, 206 Ga.App. 579, 426 S.E.2d 69 (1992); Perez v. State, 474 So.2d 398 Although the record contains self-serving statements by the prosecuting attorneys involve......
  • Thorne v. State
    • United States
    • Georgia Court of Appeals
    • November 9, 2000
    ...ends and that such advice or advocacy depends upon the lawyer's being fully informed.") (punctuation omitted.). 6. Shelton v. State, 206 Ga.App. 579, 580, 426 S.E.2d 69 (1992). 7. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 8. See Wright v. State, 267 Ga. 496, 497(2)(b), 480 S.E.2d 13 (199......
  • Request a trial to view additional results
12 books & journal articles
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part I - Testimonial Evidence
    • July 31, 2015
    ...When 11 Lahr v. State, 731 N.E.2d 479 (Ind.App. 2000); Stirum v. Whalen , 811 F.Supp. 78 (N.D.N.Y. 1993); Shelton v. State , 426 S.E.2d 69, 206 Ga.App. 579 (1992). Attorney-client privilege did not protect information concerning two forged letters that defendant provided to his attorney for......
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2017 Testimonial evidence
    • July 31, 2017
    ...communications. 11 Lahr v. State, 731 N.E.2d 479 (Ind.App. 2000); Stirum v. Whalen , 811 F.Supp. 78 (N.D.N.Y. 1993); Shelton v. State , 426 S.E.2d 69, 206 Ga.App. 579 (1992). Attorney-client privilege did not protect information concerning two forged letters that defendant provided to his a......
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part I - Testimonial Evidence
    • July 31, 2014
    ...communications. 11 Lahr v. State, 731 N.E.2d 479 (Ind.App. 2000); Stirum v. Whalen , 811 F.Supp. 78 (N.D.N.Y. 1993); Shelton v. State , 426 S.E.2d 69, 206 Ga.App. 579 (1992). Attorney-client privilege did not protect information concerning two forged letters that defendant provided to his a......
  • Privilege
    • United States
    • James Publishing Practical Law Books Is It Admissible? Part I. Testimonial Evidence
    • May 1, 2022
    ...communications. 12 Lahr v. State, 731 N.E.2d 479 (Ind.App. 2000); Stirum v. Whalen , 811 F.Supp. 78 (N.D.N.Y. 1993); Shelton v. State , 426 S.E.2d 69, 206 Ga.App. 579 (1992). Attorney-client privilege did not protect information concerning two forged letters that defendant provided to his a......
  • Request a trial to view additional results

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