Wiener v. State

• Decision Date: 09 June 1981
• Docket Number: No. 90,90
• Citation: 430 A.2d 588,290 Md. 425
• Parties: Theodore Scott WIENER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 425

290 Md. 425

430 A.2d 588

Theodore Scott WIENER v. STATE of Maryland.

No. 90.

Court of Appeals of Maryland.

June 9, 1981.

Claudia A. Cortese and George E. Burns, Jr., Asst. Public Defenders, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief) for appellant.

F. Ford Loker, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief) for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

RODOWSKY, Judge.

Appellant, Theodore Scott Wiener (Wiener), was convicted at a court trial of first degree murder and first degree rape in a case removed from the Circuit Court for Anne Arundel County to the Circuit Court for Baltimore County. Consecutive life sentences were imposed. We issued the writ of certiorari prior to consideration of Wiener's appeal by the Court of Special Appeals.

Wiener claims a violation of the constitutional right to effective representation of counsel because of the activities in the office of Wiener's defense attorney, the District Public Defender for Anne Arundel County, of an undercover agent engaged by the Office of the Attorney General of Maryland. We shall remand for a rehearing and redetermination of Wiener's motion raising that issue. Wiener also asserts that certain of his statements to the police were made during a "custodial interrogation" within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the State failed to inform him that it intended to use certain sex and violence magazines at his trial in violation of Md.Rules 741 and 772. These latter contentions are rejected.

The facts relevant to each of the appellant's arguments are presented in the discussion of the particular issue.

I

By letter dated January 31, 1979 the Governor of Maryland, acting pursuant to Maryland Constitution Article V, § 3, authorized and directed the Attorney General to undertake immediately an investigation of allegations involving misuse of state services and personnel by the Public Defender for Anne Arundel County, T. Joseph Touhey, in his private practice of law. The letter further stated that "if criminal charges are brought" as a result of the investigation, the Attorney General was authorized to prosecute in any courts of this state "with the full powers and authority possessed by a State's Attorney." We were advised by Wiener's counsel at oral argument that no prosecution ever came about as a result of this investigation.

Mr. Touhey's private office was located on one floor of a building at 91 Aquahart Road in Glen Burnie and the District Public Defender's Office was located on another floor of the same building. In the course of the investigation it was determined to utilize an undercover agent. Subsequent discovery of this operation led to the filing by Wiener of a pretrial motion to dismiss the indictment and for appropriate relief. An evidentiary hearing was had at which Wiener called three witnesses: Nancy Lee Zinn, a secretary in the District Public Defender's Office; Smedley Clinton, the investigator in that office; and Bruce C. Spizler, an assistant attorney general who instructed the undercover agent and to whom the latter reported. Based on the testimony and exhibits at the evidentiary hearing, the facts may be summarized as follows. ¹

In March 1979 there were three paid law student interns in the Anne Arundel County Public Defender's Office. As a result of a statewide directive dated March 6, 1979, they were terminated as of March 28, 1979 because of the lack of funds. On March 13, 1979 Assistant Attorney General Spizler met for the first time with Steven Vanderbosch, a law student who resided in Annapolis, Anne Arundel County. Vanderbosch agreed to assist in the investigation and was directed to seek employment in Touhey's private law office. If he were unsuccessful in that attempt, he was to seek employment as a paid law clerk in the Public Defender's Office and, if unsuccessful in that, then to volunteer as an uncompensated law clerk for the Public Defender. In any event, Vanderbosch's duties for the Attorney General's Office were to observe the day-to-day activities of Touhey's private office, including particularly the use of the xerox machine, postal meter and telephone lines, and any activities of a secretary, who was employed by the Office of the Public Defender, regarding Touhey's private practice of law. On March 26 Spizler learned that Vanderbosch was to start work, although it was not clear at that time whether this would be in the private law office or in the Public Defender's Office. On March 27, 1979 Vanderbosch started work, on a schedule of Tuesdays and Thursdays only, as a volunteer law clerk in the Public Defender's Office. By letter dated March 28, 1979 Spizler furnished Vanderbosch with directives prepared by the investigations unit of the Attorney General's Office regarding the "minimization of any intrusions into the attorney/client privilege." Vanderbosch was told that "(i)f at all possible, you may not and should not " read correspondence to or from a client, participate in any conferences or telephone conversations with clients or read any memoranda prepared by Touhey in the course of representing his "private" clients. (Emphasis in original.) The letter concluded by stating that "(i)f there should come a time when it is necessary to choose between observing privileged material and revealing your 'cover,' you are to contact me immediately for guidance."

The victim, Robin Lee Crawford, was murdered in the early afternoon of March 28, 1979. A warrant for appellant Wiener's arrest for that murder was obtained early in the morning of April 11, 1979. On instructions from Touhey, investigator Clinton interviewed Wiener at the Anne Arundel County Detention Center on April 12, 1979 and obtained a five-page written statement.

On Tuesday, April 17, Vanderbosch was sitting in the reception area of the Public Defender's suite. Tuesdays were the civil assignment day in the District Court of Maryland sitting in Glen Burnie and Vanderbosch had no clients to interview. Clinton asked Vanderbosch to step into Clinton's office to discuss an unspecified matter. Clinton showed Vanderbosch the Wiener statement, which Vanderbosch read. There then ensued a conversation of some 10 to 15 minutes duration, concerning things which would probably be done in defense of the case and procedures which would probably be followed. Clinton later told Touhey everything which Vanderbosch had discussed with Clinton.

There is no evidence of any other contact by Vanderbosch with the Wiener case.

Spizler, who was called by Wiener's counsel at the hearing on the motion, testified under cross-examination by the State that Vanderbosch had no duties, functions or responsibilities for the Attorney General's Office which were involved with the function of the Public Defender's Office; that Vanderbosch was not asked to report back in any way concerning any activities of the Public Defender's Office involving their clients and the criminal cases that they were involved in, and that it was not until April 30 that Spizler first learned of the allegations involving the Wiener motion and, indeed, of the Wiener case. Spizler testified that at no time did Vanderbosch, either in written reports or orally, discuss anything regarding the Wiener case and that Vanderbosch has never "divulged, hinted, (or) in any way informed (Spizler) of any information that (Vanderbosch) may have obtained or elicited regarding the Wiener case while he was an employee of the Office of the Public Defender."

The trial court denied Wiener's motion. In an oral opinion from the bench it concluded that "(t)here is absolutely nothing before the Court that there was any compromise of this information."

It is clear that the statement which Wiener gave to investigator Clinton was a communication between Wiener and his counsel. People v. Knippenberg, 66 Ill.2d 276, 6 Ill.Dec. 46, 362 N.E.2d 681 (1977). Whether the State's intrusion, through Vanderbosch, into the relationship between Wiener and his attorney results in dismissal of the indictment, as Wiener requests, is controlled by principles set forth in recent decisions of the Supreme Court.

Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) was a civil action under 42 U.S.C. § 1983 against Weatherford, a state undercover agent. Bursey, Weatherford and others had vandalized Selective Service offices. Bursey retained counsel for himself. Weatherford participated in meetings concerning defense strategy between Bursey and his counsel, at their invitation. The district court found that Weatherford did not disclose his role in order to preserve his cover but that Weatherford did not pass on to his superiors in the law enforcement agency or to the prosecuting attorney any information having to do with the criminal action pending against Bursey. At the criminal trial Weatherford testified as to his undercover activities and gave an eyewitness account of the vandalism. Bursey was convicted. In the § 1983 action the district court found against Bursey but the Fourth Circuit reversed. That court held that whenever the prosecution knowingly arranged or permitted an intrusion into the attorney/client relationship it sufficiently endangered the right to counsel to require reversal and a new trial. Under this approach it was immaterial that the agent had not informed other officials about the content of the meetings between the attorney and his client. This per se rule was rejected by the Supreme Court. It recognized the argument that a dutiful agent would surely communicate to the prosecutors defense plans and strategies but noted that the argument foundered on the express findings by the trial court that Weatherford had communicated nothing about the meetings. The Supreme Court pointed out that the case did not present...