State v. Fodor

• Decision Date: 11 January 1994
• Docket Number: CA-CR,No. 1,1
• Citation: 880 P.2d 662,179 Ariz. 442
• Parties: STATE of Arizona, Appellee, v. Diane FODOR, Appellant. 91-1524.
• Court: Arizona Court of Appeals

Page 662

880 P.2d 662

179 Ariz. 442

STATE of Arizona, Appellee, v. Diane FODOR, Appellant.

No. 1 CA-CR 91-1524.

Court of Appeals of Arizona, Division 1, Department C.

Jan. 11, 1994.

Review Denied Sept. 20, 1994.

[179 Ariz. 445] Grant J. Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Warren J. Granville, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by James R. Rummage, Deputy Public Defender, Phoenix, for appellant.

OPINION

TOCI, Presiding Judge.

Diane Fodor ("defendant") appeals from her convictions of two counts of perjury, both class 4 felonies, arising from her testimony before the state grand jury investigating a coverup in the bombing death of reporter Don Bolles. At trial, the state introduced evidence of a wiretapped telephone conversation between defendant and attorney Tom Henze to prove that defendant perjured herself in her grand jury testimony.

We must decide the following issues: (1) whether the attorney-client privilege bars admission of the June 18, 1990, wiretapped telephone conversation between defendant and attorney Henze; (2) whether the trial court erred in denying defendant's motions for judgment of acquittal; (3) whether the trial court erred in failing to make a proper initial determination of materiality; and (4) whether the trial court committed fundamental error in admitting in evidence certain grand jury testimony.

We dispose of the above issues as follows: We hold that Henze's potential ethical conflict arising from his representation of James Robison did not prevent the creation of an attorney-client relationship between defendant and Henze. Thus, the trial court erred in not suppressing the transcript of the wiretapped conversation between defendant and Henze. Because we cannot say that the admission of such evidence was harmless error, we reverse. We further hold that the trial court properly denied defendant's motion for acquittal on Count I, but erred in denying defendant's motion for acquittal on Count II. Additionally, we reject defendant's argument that the trial court erred by failing to make a preliminary finding that the statements were "material." Finally, we find that the trial court properly exercised its discretion in admitting in evidence grand jury testimony.

I. FACTUAL AND PROCEDURAL HISTORY

Viewed in a light most favorable to sustaining the jury verdicts, State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992), cert denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993), the evidence is as follows.

In October 1989, the state grand jury began the investigation of a conspiracy to obstruct justice in the alleged coverup of the 1976 car bombing of Don Bolles. In the grand jury proceedings, John Harvey Adamson testified that Max Dunlap hired Adamson to plant the bomb and Robison to "push the button." Adamson also testified that Dunlap promised to take care of Adamson and Robison and their families if they did not disclose Dunlap's involvement.

Robison's former girlfriend, Bette Gleason, made several grand jury appearances. On her first appearance, she denied any knowledge of the Bolles bombing or later events. Later, after she became a witness for the state in exchange for a grant of immunity, she testified a second time. She related her knowledge of Robison's involvement in the Bolles bombing and further testified that she had received approximately $500 a month from Robison's former attorney, Dave Derickson. Gleason believed that the money was being supplied by Dunlap as part of his promise to care for Robison's family while Robison was in prison.

According to the state's evidence at trial, Gleason told special agent George Weisz of the Arizona Attorney General's Office that she had written a letter to Robison shortly after her first grand jury appearance. Although Gleason did not keep a copy of the letter, she described its contents to special agent Weisz. According to Gleason's description, the letter was innocuous--it merely stated that Gleason had been called before the grand jury before Christmas 1989, and described the grand jury experience as a "a lot of B.S." Nevertheless, the state thought it was vital for the grand jury to obtain an exact copy of the letter to find out what was in it and to verify that Gleason was telling the truth. ¹

The state suspected that defendant was involved in the Bolles matter because of her romantic interest in Robison. Defendant had visited Robison in prison every weekend since 1987. She wrote to him frequently, and had been seen calling or visiting the Dunlaps before or after visiting Robison. The state believed that Robison had used his former girlfriend, Gleason, to transmit payments to Robison from Dunlap. Because defendant had taken the place of Gleason as Robison's girlfriend, the state thought defendant was a "conduit for information" between Robison and Dunlap.

On June 6, 1990, Judge O'Toole authorized the state to intercept defendant's telephone communications from June 6, 1990, to June 20, 1990. The affidavit in support of the application to wiretap defendant's telephone was submitted by special agent George Weisz of the Arizona Attorney General's Office. The affidavit alleged that probable cause existed to believe that defendant was involved in a conspiracy to obstruct a criminal investigation or prosecution, influencing a witness, receiving a bribe by a witness and illegally conducting an enterprise.

On June 18, 1990, two days before the expiration of the wiretap on defendant's phone, Assistant Attorney General Judson Roberts and special agent Weisz decided to try to initiate some activity on the wiretap. They made an unannounced visit to defendant's home at six o'clock in the evening to question her about payoffs from Dunlap. ² After the two knocked at the door and identified themselves, defendant came to the door, asked what they wanted, and told them, "I need my attorney." Roberts told her that they wanted to know whether she had received any payments from Dunlap. Defendant said she was "not receiving anything from anybody" and again stated she needed her attorney.

While Roberts and Weisz stood outside the door, defendant returned to the phone and told her friend Carol Frank, with whom she had been speaking, that the police were at the door. Defendant then called James Robison's attorney, Tom Henze, but no one answered at Henze's office. When Carol called back, defendant asked her to get Henze's home phone number and tell him to call defendant because two men from the attorney general's office were at defendant's home. A few minutes later, after defendant called directory assistance twice in an attempt to obtain Henze's phone number, Henze phoned defendant.

In the ensuing wiretapped conversation with Henze, defendant explained to Henze that she told Roberts and Weisz that she had to talk to her attorney and that they wanted to know "who my attorney is." Then Henze specifically asked defendant whether she was asking for legal advice. Defendant indicated that she was seeking his advice. Henze told her that she did not have to talk to Roberts and Weisz if she did not want to. Henze also told defendant that she should inform Roberts and Weisz that any future meeting with her could be arranged through Henze.

Then the subject of the conversation between defendant and Henze shifted to the Gleason letter in the possession of defendant. Earlier, in a June 11, 1990 conversation monitored by the state, defendant had informed her cousin, Norma Hubele, about the letter and stated that she was planning to send the letter to Henze. Now, in the June 18, 1990, conversation, Henze asked defendant about the letter. She told him that it was in an envelope "sealed and ready to mail to you." Henze told defendant to put it in her purse and deliver it to his office the next morning. The following day, defendant was seen going to the Luhrs Building, where Henze's office is located.

On October 15, 1990, defendant testified before the state grand jury. When asked whether she had "ever given Tom Henze letters or documents that you or anyone else wrote to Jim Robison," defendant responded, "No, not that I recall." Later, the prosecutor asked defendant, "Has anybody ever suggested that you give that type of evidence to Tom Henze so that the State couldn't get it?" Defendant answered, "No."

Based on these two questions and answers, the state indicted defendant for two counts of perjury. At trial, the state relied on the June 18, 1990, wiretapped conversation between defendant and Henze to prove that defendant did give the Gleason letter to Henze and that she lied when she stated to the contrary. Defendant moved to suppress the conversation, claiming that it was barred by the attorney-client privilege, was obtained through the use of an illegal wiretap, and should have been minimized. ³ After several days of hearings, the trial court denied defendant's motion to suppress. The court found that no attorney-client relationship existed between defendant and Henze, and that the state had properly minimized the wiretap.

At the close of all the evidence, defendant moved for a judgment of acquittal on both counts. The trial court denied the motion. The jury returned verdicts of guilty on both counts.

The trial court suspended the imposition of sentence and placed defendant on four years of supervised probation. The court also ordered defendant to pay $5,000 in partial reimbursement of legal fees, a $30.00 monthly probation fee, a $200.00 felony penalty assessment, and an $8.00 time payment fee. Additionally, defendant was instructed to complete 120 hours in the Work Order Program and to participate in counseling at the discretion of her probation officer. Defendant filed a timely notice of appeal.

II. DISCUSSION

A. Suppression of June 18, 1990, Wiretapped Conversation

1. Existence of Attorney-Client Privilege

Defendant argues that the trial...