State v. Sullivan, 36114

Decision Date12 July 1962
Docket NumberNo. 36114,36114
Citation60 Wn.2d 214,373 P.2d 474
PartiesThe STATE OF WASHINGTON, RESPONDENT, v. Irene SULLIVAN, Appellant.
CourtWashington Supreme Court

Stanley L. Conroy, Everett, for appellant.

Arnold R. Zempel, Pros. Atty., Jack N. Bishop, Deputy Pros. Atty., Everett, for respondent.

WEAVER, Judge.

A jury found Mrs. Irene Sullivan guilty of murder in the first degree. She appeals from a judgment and sentence committing her to the state penitentiary for the remainder of her natural life.

Two days after defendant's husband purportedly went fishing, she reported him missing. January 19, 1961, some four weeks later, Mr. Sullivan's body and fishing gear were exhumed by members of the Snohomish county sheriff's office from a flower bed on land occupied by Mr. and Mrs Sullivan's house trailer. Mr. Sullivan had been shot through the right temple.

In support of her contention that she did not receive a fair trial, defendant makes four assignments of error that may be grouped in two categories: (1) it was error for the trial court to require defense counsel to testify for the state; and (2) it was error to permit Paulus Vanderwielen, M.D., to testify concerning confidential statements defendant made while under his observation, examination, treatment and care in Northern State Hospital, where she had been sent by an order of court.

I.
A. Privileged communication between attorney and client.

Prior to the discovery of Mr. Sullivan's body, defendant consulted Stanley L. Conroy, a member of the bar of this state. He subsequently defended Mrs. Sullivan on the charge of first-degree murder.

After the state had examined 17 witnesses, the prosecuting attorney called defense counsel to the witness stand. Surprise could not have been claimed. Mr. Conroy was named on the list of state witnesses filed by the prosecuting attorney, pursuant to RCW 10.37.030. In addition, the deputy prosecuting attorney said in his opening statement: 'We will have Mr. Conroy on the stand * * *.' He then outlined evidence the state would adduce from Mr. Conroy.

Introductory to later objections, defense counsel testified:

'Q. On the 18th day of January, 1961 did you call Robert Twitchell, the sheriff of this county? A. Yes, sir, I think it was the 18th. I called him one evening, at any rate. Q. And do you recall what it was about that you were calling him? A. Yes, I had some information that I thought would be of value. Q. And what was that information? A. It was regarding a missing person. Q. And who was the missing person? A. The missing person was Lloyd Sullivan. * * * Q. * * * What did you inform Mr. Twitchell as to Lloyd Sullivan.'

In the absence of the jury, defense counsel objected to this line of questioning on two grounds: (1) it involved privileged communication between attorney and client; and (2) it was hearsay.

The trial court sustained the objection to conversations between defense counsel and Sheriff Twitchell, but overruled the objection that a privileged communication was involved.

Thereafter, defense counsel testified:

'Q. Mr. Conroy, on the 18th day of January, 1961, did you give information to the sheriff of Snohomish County as to where the body of Lloyd Sullivan was? A. More or less, in an indirect way, I did. Q. Where it might be found? A. Where it might be, yes, uh-huh. Q. Then, the following morning did you again see Mr. Twitchell? A. Yes. Q. And the following morning you accompanied Mr. Twitchell to the Sullivan trailer, or to the Sullivan Property, did you not? A. Yes, Sir. About twenty people, I would say, went.'

RCW 5.60.060 provides, in part:

'The following persons shall not be examined as witnesses:

* * *

* * *

'(2) An attorney or counselor shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.'

In State v. Emmanuel, 42 Wash.2d 799, 815, 259 P.2d 845 (1953), this court said:

'The same privilege accorded the attorney is extended to the client under the common law rule. State v. Ingels, 4 Wash.2d 676, 104 P.2d 944. Certiorari denied. 311 U.S. 708, 61 S.Ct. 318, 85 L.Ed. 460. Such statutes are merely declaratory of the common law. 58 Am.Jur., Witnesses, § 463.'

The privilege is that of the client and only he can waive it. State v. Ingels, supra; State v. Emmanuel, supra. Although a third party overhearing a conversation between an attorney and client may testify, the attorney is not thereby qualified. Hartness v. Brown, 21 Wash. 655, 59 P. 491 (1899); State v. Falsetta, 43 Wash. 159, 86 P. 168 (1906).

Although a client's communications to his lawyer are not confidential or privileged when conveyed to counsel for the purpose of public disclosure (Green v. Fuller, 159 Wash. 691, 294 P. 1037 (1930)), the gravity of the charge in the instant case, and the character of the evidence sought do not permit the inference that Mrs. Sullivan consulted defense counsel for the purpose of having him disclose the nature of her communication. In fact, the contrary appears.

The following occurred in the absence of the jury:

'[Q.] Mr. Zempel: * * * Did your client ask you to give the sheriff this information? [A.] Mr. Conroy: My client didn't even know what she was doing when I talked to her. Mr. Zempel: That is not answering the question. Mr. Conroy: Of course she didn't. She belonged in the hospital when I talked to her. It is obvious.'

We believe it immaterial that the lawyer, when called upon to testify, was questioned concerning what he told others, but was not questioned converning the confidential communication of his client to him. If the former must be obviously based upon the latter, the client's privilege prohibits the attorney from testifying.

'The rule as to privileged communications between attorney and client applies regardless of the manner in which it is sought to put the communications in evidence, whether by direct examination, cross-examination, or indirectly as by bringing out facts brought to knowledge solely by reason of a confidential communication.' 58 Am.Jur., Witnesses, § 466, p. 262. (Italics ours.)

The prosecuting attorney could have had only one intent and purpose when he called defense counsel as a state witness: to prejudice the jury by giving it an opportunity to draw the inescapable inference that defendant had told defense counsel where she had buried her husband's remains. This was privileged under the statute, and it was prejudicial error to force Mr. Conroy to testify concerning it.

B. Defense Counsel as State Witness.

The second facet of defense counsel's testimony presents a question that is not susceptible of categorical answer, but one that, on a retrial of this case, may be presented to the trial court.

Following Mr. Conroy's previous testimony, the prosecuting attorney examined Mr. Conroy at length on his participation in the search for Mr. Sullivan's body January 19, 1961; whether he took part in the search of the trailer house; what he had seen; what was found; discovery of the gun; uncovering of the body; identification of numerous exhibits, including photographs taken at the scene--one showing the presence of defense counsel.

Although the evidence was not cumulative at the time Mr. Conroy was called as a witness, it became repetitious by the end of the trial, for everything to which defense counsel testified was established with particularity by numerous other witnesses. to prejudice the jury by giving it an opportunity change or modify, the rule that a lawyer in a cause is not disqualified as a witness; his testimony is admissible, if otherwise competent. Ryan v. Ryan, 48 Wash.2d 593, 599, 295 P.2d 1111 (1956).

We recognize, and do not wish to change or modify, the rule that a lawyer in a cause is not disqualified as a witness; his testi- mony is admissible, if otherwise competent. Ryan v. Ryan, 48 Wash. 2d 593, 599, 295 P.2d 1111 (1956).

In at least two prior decisions, this court has recognized the right of the prosecuting attorney to call defense counsel as a witness. State v. Cresto, 130 Wash. 436, 227 P. 856 (1924); State v. Allgood, 50 Wash.2d 618, 313 P.2d 695 (1957).

In the Cresto case, supra, husband and wife were being tried jointly. The state believed it had not sufficiently identified appellant's wife as the person who had previously been convicted in justice court on another charge. The state called defense counsel, the former prosecuting attorney, as a witness to furnish the identification. This court said:

'* * * The state had a right to make the necessary proof in any way it saw fit, and the mere fact that it made it through a person who happened at the time to be appellant's attorney cannot alter the situation nor make the testimony improper. Besides, all this part of the proceeding was with reference to the action against appellant's wife, and did not touch him, and it is difficult for us to see how the matters complained of here could have been prejudicial to him.'

In the Allgood case, supra, defense counsel had notarized an affidavit signed by his client. It was not error for the court to permit defense counsel to identify the signature, for a notary public '* * * may not refuse to prove the authenticity of signatures so notarized.' (p. 620, 313 P.2d p. 697)

Neither case is directly in point on the question now before us. In the first, defendant's rights were not invaded; in the second, the evidence concerned the authenticity of proof.

As we pointed out in Ryan v. Ryan, supra, when trial counsel is a witness, except as to merely formal matters, he stakes his oath and word against the oath of his client's adversary. This is true whether he testifies with consent of his client or under compulsion, as in the instant case.

'* * * When this occurs, he [counsel] becomes something more, in the eyes of the court or jury, than a professional representative of his client's interest.' Ryan v....

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