State v. Tate

• Citation: 294 N.C. 189,239 S.E.2d 821
• Decision Date: 24 January 1978
• Docket Number: No. 97,97
• Parties: STATE of North Carolina v. John Calvin TATE.
• Court: United States State Supreme Court of North Carolina

Page 821

239 S.E.2d 821

294 N.C. 189

STATE of North Carolina v. John Calvin TATE.

No. 97.

Supreme Court of North Carolina.

Jan. 24, 1978.

Rufus L. Edmisten, Atty. Gen., by Jane Rankin Thompson, Associate Atty., Raleigh, for the State of North Carolina.

Michael S. Scofield, Public Defender, and Grant Smithson, Asst. Public Defender, Charlotte, for defendant appellant.

HUSKINS, Justice:

Defendant's first two assignments of error concern evidentiary rulings of the trial court relating to a communication between defendant and the attorney who represented him in connection with another criminal charge. These assignments require further examination of the evidence adduced at trial.

State's witness Margaret Ann Robinson testified that during the course of his assault on her defendant stated: "I got a letter from my lawyer saying that I was going to make ten years for shooting in your house. . . . You are not going to live to testify." State's witness Malinda Ann Robinson testified: "(Defendant) said he was going to kill all of us because he got a paper from his lawyer saying he was going to make ten years for shooting in our house." Attorney Tate Sterrett was then called as a witness for the State and testified that he represented defendant in connection with a charge of shooting into an occupied dwelling. Sterrett was then asked: "Did you have an occasion to communicate with the defendant by letter on December 22nd of 1976?" Over defendant's objection the witness was directed to respond and his answer was in the affirmative. No further questions were asked. The trial court's ruling admitting this testimony constitutes defendant's first assignment of error.

It is well established that the substance of communications between attorney and client is privileged under proper circumstances. See generally 1 Stansbury's North Carolina Evidence § 62 (Brandis rev. 1973); McCormick on Evidence §§ 87-95 (2nd ed. 1972). Not all facts pertaining to the lawyer-client relationship are privileged, however. "(T)he authorities are clear that the privilege extends essentially only to the substance of matters communicated to an attorney in professional confidence. Thus the identity of a client, or the fact that a given individual has become a client are matters which an attorney normally may not refuse to disclose, even though the fact of having retained counsel may be used as evidence against the client." Colton v. United States, 306 F.2d 633, 637 (2nd Cir. 1962). We are of the opinion that the fact that an attorney did communicate with his client in a certain manner on a certain date is likewise not normally privileged information. "It is the substance of the (attorney-client) communication which is protected, however, not the fact that there have been communications." United States v. Kendrick, 331 F.2d 110, 113 (4th Cir. 1964). Accord, State v. Manning, 162 Conn. 112, 291 A.2d 750 (1971). We hold that the trial court properly admitted Attorney Sterrett's testimony that he had sent a letter to defendant on 22 December 1976. Defendant's first assignment of error is overruled.

Following Attorney Sterrett's testimony that he had written a letter to John Calvin Tate, defense counsel sought to cross-examine Sterrett concerning the letter's contents. Sterrett testified in the absence of the jury that the letter he had written to defendant contained no statement that Tate was likely to receive a ten-year sentence for shooting into the Robinson apartment. Judge Grist ruled that if such testimony were elicited in the presence of the jury by defendant's questioning, such action would constitute a waiver of the attorney-client privilege with respect to the entire contents of the letter. This ruling constitutes defendant's second assignment of error.

It is well settled that the privilege afforded a confidential communication between attorney and client may be waived by the client when he offers testimony concerning the substance of the communication. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540 (1956); State v. Artis, 227 N.C. 371, 42 S.E.2d 409 (1947); Jones v. Marble Co., 137 N.C. 237, 49 S.E. 94 (1904); McCormick on Evidence § 93 (2nd ed. 1972); 8 Wigmore, Evidence § 2327 (McNaughton rev. 1961). Defendant contends, however, that questions concerning what statements a confidential communication does not contain should not constitute a waiver of the attorney-client privilege with respect to the entire communication.

We are of the opinion that the trial court's ruling was correct. The letter itself is the best evidence of what it does and does not contain. Even if the letter contained no statement that defendant was likely to receive a ten-year sentence for shooting into the Robinson residence, it may have contained other statements of similar import. The privilege which preserves the confidentiality of the letter is deemed to be waived if Sterrett's testimony concerning the letter's contents is put into evidence before the jury. Hayes v. Ricard, supra. Defendant's second assignment of error is overruled.

Defendant's third assignment of error relates to the failure of the trial court to order the district attorney to disclose a statement by State's witness Mary Harrell given prior to trial.

Mrs. Harrell testified at trial that defendant spent Christmas Eve at her family's home and that she saw defendant knocking on the door to Mrs. Robinson's apartment on Christmas morning between 9 and 10 a. m. On cross-examination defense counsel established that Mrs. Harrell had previously given a statement to police officers in connection with their investigation of the murder of Tamara Robinson. Defendant then moved that he be allowed to inspect this prior statement, and the motion was denied. No in camera inspection of the witness' prior statement was conducted, and no findings of fact were made respecting the court's refusal to permit defendant to inspect the prior statement of Mary Harrell.

The trial court's denial of defendant's motion was error. This question is thoroughly discussed in State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977):

"(W)e believe justice requires the judge to order an in camera inspection when a specific request is made at trial for disclosure of evidence in the State's possession that is obviously relevant, competent and not privileged. The relevancy for impeachment purposes of a prior statement of a material State's witness is obvious.

We do not hold as the United States Supreme Court has held, as a matter of federal criminal procedure, that a defendant is automatically entitled to such statements at trial. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), a holding that Congress subsequently approved and codified in the Jencks Act, 18 U.S.C. § 3500. State v. Chavis, 24 N.C.App. 148, 210 S.E.2d 555 (1974), cert. denied, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S.Ct. 868, 47 L.Ed.2d 91 (1976).

Instead, we hold that since realistically a defendant cannot know if a statement of a material State's witness covering the matters testified to at trial would be material and favorable to his defense, (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)) and (United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)) require the judge to at a minimum, order an in camera inspection and make appropriate findings of fact. As an additional measure, if the judge, after the in camera examination, rules against the defendant on his motion, the judge should order the sealed statement placed in the record for appellate review." 293 N.C. at 127-28, 235 S.E.2d at 842.

In our opinion, however, the trial court's error was harmless beyond a reasonable doubt. Defense counsel's cross-examination of Mary Harrell established that she was uncertain of the time at which she saw defendant knocking on the door of the Robinson family's apartment. Even if her pretrial statement to police officers would have enabled counsel to completely destroy Mrs. Harrell's credibility, the uncontradicted testimony of Margaret and Malinda Ann Robinson indicates defendant was the person who went on a rampage in their home on Christmas morning. Moreover, State's witness Michael Walker, a local newspaper boy, testified that he saw defendant leaving the Robinsons' apartment on Christmas morning about twenty to thirty minutes before police officers arrived. The officers first arrived at the Robinson apartment at about 11 a. m. according to the testimony of Officer J. C. Boatman. We are satisfied beyond a reasonable doubt that the error of the trial court in summarily denying defendant's motion had no impact on the jury's verdict and did not contribute to defendant's conviction. See Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).

In response to questions propounded by the district attorney, Mrs. Margaret Robinson testified that at one time between summer and Christmas of 1976 defendant had come to her house armed with a pistol, forced her to have sexual relations with him, and threatened to kill her if she called the police. Motion to strike this testimony was overruled. Defendant grounds his fourth assignment on this ruling.

It is a well settled rule of evidence in this jurisdiction that proof of crimes other than those for which defendant is being tried is generally inadmissible. This rule, however, is subject to a number of exceptions. The rule itself and the numerous exceptions thereto are discussed and documented by Justice Ervin in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). The second exception noted in McClain is pertinent here:

"2. Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses...