State v. Lawonn, 3231

• Citation: 113 Ariz. 113,547 P.2d 467
• Decision Date: 26 March 1976
• Docket Number: No. 3231,3231
• Parties: STATE of Arizona, Appellee, v. Leah Lorraine LAWONN, Appellant.
• Court: Arizona Supreme Court

Page 467

547 P.2d 467

113 Ariz. 113

STATE of Arizona, Appellee, v. Leah Lorraine LAWONN, Appellant.

No. 3231.

Supreme Court of Arizona, In Banc.

March 26, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Jr., Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

This matter was previously before us and was remanded to the trial court by a memorandum decision filed October 22, 1975. On appeal the defendant contended that prior to her plea of guilty, she was not informed of her privilege against self-incrimination as required by Rule 17.2, Rules of Criminal Procedure; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State v. Darling, 109 Ariz. 148, 506 P.2d 1042 (1973). In the remand order we sent the case to the trial court for a determination as to whether the defendant knew that her privilege against self-incrimination would be waived by a plea of guilty.

Subsequently, the trial court held a hearing pursuant to our order of remand, and returned findings and a reporter's transcript of the hearing. The defendant filed objections to the findings of the court.

The basic issue presented at this time is whether a defendant who attacks the validity of a guilty plea because she was not aware that the entry of the plea waived her privilege against self-incrimination, can thereafter assert the attorney-client privilege to keep her attorney from testifying as to information he gave her in this regard.

At the remand hearing, the deputy public defender who had represented the defendant at the guilty-plea proceeding was subpoenaed by the county attorney. He declined to testify, asserting the attorney - client privilege and referring the court to a recent Michigan Supreme Court case, People v. Nicholson, 395 Mich. 96, 235 N.W.2d 132 (1975). Pursuant to stipulation, he filed an affidavit in a sealed envelope which contained the substance of the testimony he might have given at the hearing to be forwarded to this court.

The defendant attacks the finding of the trial court which finds the defendant knew that a plea of guilty waived her privilege against self-incrimination. The court, in making this finding, referred to specific pages in the transcript in support thereof, among which is the following testimony of the defendant who took the stand:

'Q And what right is it that you are contending that you were not informed of at the time that you offered your plea?

'A I don't know my rights--I mean--is it all right if I talk?

'Q Yes.

'A It stated that I've been sentenced so many times that I should have known my rights. Well, I didn't. I mean, I go before a Judge and I get scared. I don't--I'm sure I've been told my rights at other times, but I don't know them.'

In view of our position on the assertion of the attorney-client privilege, we need not address the issues raised by defendant's objections.

In State v. Darling, supra, we said:

'We hold, therefore, that in cases of pleas of guilty, if on appeal the complete record is deficient as to some of the matters required by Boykin, but otherwise reflect a voluntary, knowing, uncoerced plea and it appears that the record could be expanded to reflect the truth of what happened, the matter will be remanded to the trial court for further proceedings.

'In deciding as we do, we reject the assertion that an accused person cannot know anything except what the judge has told him. We take judicial notice that defendants know many things which are not told to them by the judge, and if the record will support a finding that the defendant did, in fact, know these things, we will not reverse merely because he did not hear it from the judge.' 109 Ariz. at 152, 506 P.2d at 1046.

In People v. Nicholson, supra, the Michigan Supreme Court flatly says:

'The attorney-client privilege precludes questioning the defendant's lawyer to establish that he was informed by his lawyer of the omitted right.' 395 Mich. at 121, 235 N.W.2d at 141.

With this position we do not agree. By raising on appeal the issue of lack of knowledge of a right waived by a guilty plea, we hold that defendant has waived the attorney-client privilege as to this issue. Although differing in mode of presentation and stage of proceedings, this is within the spirit of Rule 32.8, Rules of Criminal Procedure, which permits the state to call the defendant to the stand. Nor do we find a due process problem here. As the United States Supreme Court indicated in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the adversary system is not a poker game. We are still involved in a search for truth.

The following quote from United States v. Woodall, 438 F.2d 1317 (5 Cir., 1970), expresses our position:

'Courts earnestly pursuing reality would be hard put to justify a rule that would allow a defendant circumstanced as Woodall here to assert that his solemn pleas of guilty were negated for lack of accurate information of sentence consequences, then permit him to run a procedural trap play that would block the development of the plain truth which shows his own attorney told him exactly what he could expect. Not only does this specious sophistry fail to protect confidential relationships, it trifles with the truth--it scoffs at justice--and we reject it flatly.' 438 F.2d at 1326.

Having decided that the testimony of the defendant's attorney at the guilty proceeding is not privileged, we look to his affidavit. The pertinent part reads as follows:

'I would have testified that I have no independent recollection of what specific conversations I had with Defendant Lawonn regarding advising her of the rights which she would waive by pleading guilty. However, it has always been my practice and habit to inform all clients prior to them entering a plea of guilty of all of the constitutional rights which they are giving up, including the right against self-incrimination.'

With the affidavit testimony and the testimony taken at the remand hearing, there can be no doubt that the defendant, by pleading guilty, knew that she waived her privilege against self-incrimination.

Judgment of conviction affirmed.

CAMERON, C.J., and HOLOHAN and GORDON, JJ., concur.

STRUCKMEYER, Vice Chief Justice (specially concurring).

I concur in the opinion of the Court in this matter, feeling that it is not in the interest of justice to extend the attorney-client privilege to instances where the client's position is an attack on the adequacy of the representation of the attorney.

While I concurred in the first opinion of this Court remanding the case for a determination as to whether the defendant knew that her privilege against self-incrimination was waived by her plea of guilty, I...