State ex rel. Hyder v. Superior Court of Maricopa County
| Decision Date | 27 January 1981 |
| Docket Number | No. 15022,15022 |
| Citation | 128 Ariz. 253,625 P.2d 316 |
| Parties | STATE of Arizona ex rel. Charles F. HYDER, Maricopa County Attorney, Petitioner, v. The SUPERIOR COURT OF MARICOPA COUNTY, Arizona; Honorable William P. French, Judge of the Superior Court; Craig Mehrens, Attorney At Law, for Realtor; and Realtor in 32 G.J. 191, real party in interest, Respondents. |
| Court | Arizona Supreme Court |
Charles F. Hyder, Maricopa County Atty. by Myrna J. Parker, Deputy County Atty., Phoenix, for petitioner.
Thomas A. Thinnes, Phoenix, for respondents.
This special action was brought to vacate the order of the Honorable William P. French, Judge of the Superior Court of Maricopa County, Arizona, quashing a subpoena duces tecum. The subpoena was directed to Craig Mehrens, an attorney licensed to practice in Arizona. It ordered him to appear and testify before a grand jury, and to produce "all personal letters written to SANDRA MARIE WAYMAN by RONALD A. WAYMAN between August 1979, and March 1980 * * *." Ronald Wayman is a client of Mehrens. He has been charged with two counts of sexual conduct with a minor, his daughter, Sandra Marie. Judge French, on Mehrens' motion, quashed the subpoena, being of the view that the letters were protected by the attorney-client privilege. Since we agree that the letters are protected by the attorney-client privilege, the relief requested is denied.
It is the State's position that Wayman engaged in certain sexual conduct with a minor, his daughter, in 1979. Subsequent thereto, she left Arizona to live in California. While she was in California, Wayman wrote and mailed certain letters to her in which, assertedly, the sexual conduct was discussed. In March, 1980, Sandra returned to her parents' home in Arizona, bringing the letters with her. On July 3, 1980, she left home again, but did not take the letters with her. One week later, the criminal complaint in this case was filed. A search warrant was issued to obtain certain incriminating items from the Waymans' residence, including the letters. The letters, however, were not found in the search because prior to the search Wayman delivered the letters to Mehrens. They were being kept by Mehrens when a subpoena duces tecum issued in Maricopa County Grand Jury Proceeding 32 GJ 191 on August 5, 1980, directed him to appear and bring the letters. Mehrens moved to quash the subpoena and delivered the letters under seal to Judge French, who ruled quashing the subpoena, as stated.
The State asserts that Wayman stole the letters from his daughter and that they were delivered to Mehrens so their discovery would be impeded. There are, however, no evidentiary facts before this Court which support these assertions. Mehrens, on the other hand, filed certain affidavits. The affidavit of Wayman's wife implies that the letters were not stolen but were abandoned by Sandra when she left the Waymans' residence. Mehrens' affidavit says the letters were given to him in order that he might advise Wayman as to his legal rights. Since the affidavits support Mehrens' position, we assume for the purpose of this decision that the letters were not stolen and were delivered to Mehrens in furtherance of his legal representation.
In a special action, an appellate court will ordinarily not weigh the evidence on which the decision in the court below was made. We will only consider whether the decision either totally lacks any evidence to support it or is contrary to uncontradicted and unconflicting evidence. Bishop v. Law Enforcement Merit Sys. Council, 119 Ariz. 417, 421, 581 P.2d 262 (App.1978); Arizona Dept. of Public Safety v. Dowd, 117 Ariz. 423, 426, 573 P.2d 497 (App.1977).
The record here establishes that the subpoena was quashed because of the attorney-client privilege. 1 The attorney-client privilege prevents a lawyer from being compelled to produce a document of a client which pre-exists the attorney-client relationship if the document was transferred to the attorney to further his legal advice and if the client himself would be privileged from producing the document. Fisher v. United States, 425 U.S. 391, 403-405, 96 S.Ct. 1569, 1577-1578, 48 L.Ed.2d 39 (1976). Cf. Buell v. Superior Court of Maricopa County, 96 Ariz. 62, 68-69, 391 P.2d 919 (1964) ().
We therefore turn to the question of whether the respondent judge was correct in holding that under the circumstances of this case the privilege against self-incrimination would invalidate a subpoena directed at Mehrens' client. This question was left open in Fisher v. United States, supra, 425 U.S. at 414, 96 S.Ct. at 1582, the Court saying:
"Whether the Fifth Amendment would shield the taxpayer from producing his own tax records in his possession is a question not involved here; for the papers demanded here are not his 'private papers,' * * *."
The Fifth Amendment to the federal constitution, which applies to the states through the Fourteenth Amendment's due process clause, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653 (1964), provides in its relevant part:
"No person * * * shall be compelled in any criminal case to be a witness against himself * * *." United States Const., Amend V.
The reference to "a witness" in the federal constitution prohibits not only compulsory incriminating oral testimony but any compulsory incriminating communicative act. Schmerber v. State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1831-1832, 16 L.Ed.2d 908 (1966).
The Court in Fisher acknowledged numerous decisions have held that the Fifth Amendment prohibits the production of a person's private papers against his wishes. 425 U.S. at 408-409, 96 S.Ct. at 1580. These cases were based on the idea, apparently first articulated in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), that the self-incrimination clause is intimately related to the search and seizure prohibition of the Fourth Amendment and creates, like the Fourth Amendment, a private enclave where an individual may lead a private life without governmental intrusion. See id., 116 U.S. at 633, 6 S.Ct. at 534; Fisher v. United States, 425 U.S. at 416, 96 S.Ct. at 1583 (Brennan concurring). The Fisher Court, however, rejected the idea that the Fifth Amendment is based on privacy principles, holding instead that the purpose of the self-incrimination clause was not to achieve a general protection of privacy but to prevent the specific evil of compelled self-incrimination. 2 425 U.S. at 399-400, 96 S.Ct. at 1575-1576. Compelled self-incrimination occurs when an individual is forced to make an incriminating communicative act. Fisher v. United States, 425 U.S. at 408, 96 S.Ct. at 1579; In re Grand Jury Proceedings United States, 626 F.2d 1051, 1055 (1st Cir. 1980); United States v. Beattie, 541 F.2d 329 (2nd Cir. 1976); Matter of Grand Jury Empanelled, 597 F.2d 851, 859-860 (3rd Cir. 1979); United States v. Authement, 607 F.2d 1129, 1131 (6th Cir. 1979); United States v. Osborn, 561 F.2d 1334, 1338 (9th Cir. 1977); Note, 18 Bost.Co.Ind. & Comm.L.Rev. 998, 1008-1016 (1977). While most federal appellate courts accept the foregoing statement as the test, some have taken the Court's reservation of the question in Fisher to mean that the per se prohibition against the compelled production of private papers of Boyd is still viable. See In re Grand Jury Proceedings (Johanson), 632 F.2d 1033 (3rd Cir. 1980); In re Grand Jury Proceedings (McCoy), 601 F.2d 162, 167 (5th Cir. 1979). We do not, however, think the Supreme Court could have been more specific in rejecting privacy as the predicate for the Fifth Amendment.
The documents sought from the taxpayers' attorneys in Fisher were the workpapers created by accountants in preparing the taxpayers' returns. Letters were also sought, but the Court stressed that these letters were written by the accountants and sent to the taxpayers. 425 U.S. at 413, n. 13, 96 S.Ct. at 1582, n. 13. By responding to the subpoena, the taxpayers would admit the existence of the papers and their possession of them. The Court noted, however, that such admissions would not be incriminating for "it is not illegal to seek accounting help in connection with one's tax returns or for the accountant to prepare workpapers and deliver them to the taxpayer." Id., 425 U.S. at 412, 96 S.Ct. at 1581. The Court said:
425 U.S. at 412-413, 96 S.Ct. at 1582 (footnotes omitted).
The subpoena in the instant case is directed to "Any and all personal letters written * * * by RONALD A. WAYMAN * * *." Unlike Fisher, compliance with this subpoena would authenticate these letters since in producing them Wayman admits, by the wording of the subpoena, that he is their author. If the letters contain incriminating information, they would be relevant and could be admitted under Rule 801(d)(2), Arizona Rules of Evidence, 17A A.R.S., as admissions by party-opponent. They would be admissible, however, only if there were proof that the letters were written by Wayman. See 7 Wigmore, Evidence §§ 2129, 2130 (Chadbourn rev. 1978). Since...
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