Beckette v. State

Gilbert, J., delivered the opinion of the Court. On June 3, 1975, James Daniel Beckette, appellant, was convicted, on indictment number 49907, by a jury, in the Circuit Court for Baltimore County, of daytime housebreaking, assault and the use of a handgun in the commission of a felony. Appellant was also convicted, on June 13, 1975, on indictments number 50711 and number 51183, by a jury presided over by Judge Marvin J. Land, in the Circuit Court for Baltimore County, of rape, use of a handgun in the commission of a felony, daytime housebreaking, assault with intent to rape, and assault. The terms imposed upon appellant as a result of both trials aggregate forty years.

Appellant has appealed all judgments of the circuit court. For purposes of clarification in discussing the facts and applicable law, we shall assign to the appeal from the judgment entered on the June 3, 1975, conviction the ⁸⁷ indictment number 49907, and indictment numbers 50711 and 51183 shall refer to the appeal from the judgments entered in the court presided over by Judge Land. We shall treat each appeal separately within the confines of this opinion. Indictment No. 4.9907 The evidence discloses that an intruder unlawfully gained entrance into the home of the prosecutrix and her husband while the prosecutrix’s husband was away at work.

The intruder climbed the stairway to a second floor bedroom where the prosecutrix was reclining on her bed. The room was well lit from sunlight. The prosecutrix pulled her knees to her chest in an effort to ward off the intruder who was armed with a revolver. The intruder climbed onto the bed, stifled the prosecutrix’s screams and pressed himself against her upraised legs.

The woman told the intruder that if he would leave she would not report the matter to the police, and the intruder left the house. The police were called, and a subsequent investigation brought about the appellant’s apprehension. The prosecutrix made a positive judicial identification of the appellant as the intruder. Appellant denied all knowledge of the offense and interposed a defense of alibi.

Superimposed upon the alibi was the testimony of several character witnesses who testified to the appellant’s good reputation for truth and veracity. One of the character witnesses was the appellant’s former attorney in this case. The scope of the State’s cross-examination of the witness, over objection, has led to the appellant’s first contention in this appeal. I “The court erred in permitting the State to impeach the testimony of appellant’s former attorney concerning appellant’s character by introducing a letter written by the attorney to the appellant in the course of his employment as appellant’s counsel in an entirely unrelated civil matter.” ⁸⁸ We do not agree that the letter was written by the attorney “ .. . in the course of his employment ... in an entirely unrelated civil matter.” The lawyer, who had represented appellant in this case prior to the time that the present counsel entered his appearance, struck his appearance in accordance with Md. Rule 125.

Attached to the motion to strike the appearance of counsel was a carbon copy of a letter from then counsel to the appellant. The letter read, in pertinent part: “Re: Legal representation; criminal and domestic matters Dear Mr. Beckette: In accordance with the Maryland Rules of Procedure, Rule 525, l 1 ] you are herewith advised of my intention to strike my appearance from any and all of your cases in which I have been your attorney. Said Motion to Strike Appearance will be filed with the Circuit Court of [sic] Baltimore, [sic] County on or after Monday, February 3, 1975. I regret that this action has become necessary, Jim, but it has.

You have repeatedly sought my advice and counsel in these matters, and then acted in total disregard of the advice given. I find that I have no control over you or the case(s) and their development or resolution. Specifically, you have consistently withheld information from me, material to a criminal case defense. You have given me false information on occasion. . . .” [ 2 ] (Emphasis supplied).

Nevertheless, even if we assume that the letter was written on an “unrelated civil matter,” that fact does not affect our ⁸⁹ disposition. An attorney’s obligation to respect the confidences of his client, with rare exceptions 3 not here applicable, continues after the termination of the lawyer’s services and even survives the death of the attorney or the client. Md. Rule 1230, Appendix F, “Code of Professional Responsibility” § EC4-6; Moore v. Bray, 10 Pa. 519 (1849); 3 Wharton’s Criminal Evidence § 560 (13th ed. C. Torcia 1973).

Of course, the privileged communication status may be waived only by the client. The waiver may be either expressed or implied. McCormick’s Handbook of the Law of Evidence § 93 (2d ed. E. Cleary 1972); 3 Wharton’s Criminal Evidence § 561 (13th ed.

C. Torcia 1973); 8 J. Wigmore, Evidence § 2327 (McNaughton rev. 1961). Patently, the question in the case at bar is: Did the calling of the former lawyer by appellant as a character witness, posing to him an interrogatory which sought the attorney’s personal opinion of appellant’s “ . . . reputation for truthfulness and veracity,” and receiving a favorable answer thereto, open the door for the use of the attorney’s letter as the basis of impeachment? We think it did. We explain why we so believe.

There can be no question but that appellant’s former attorney was the one who made a matter of public record the accusation that appellant had furnished the attorney with “false information.” The filing in the court of a copy of the letter containing the accusation placed the information within the purview of the public. Court files, unless sealed by order of the court, are properly viewable by any person. Md. Ann. Code, Courts and Judicial Proceedings Article § 2-203; Perlman v. United States, 247 U. S. 7 , 38 S. Ct. 417 , 62 L. Ed. 950 (1918); Ex parte Uppercu, 239 U. S. 435 , 36 S. Ct. 140 , 60 L. Ed. 368 (1915). See also Annot., 175 A.L.R. 1260 , § 3 (1948) (Restricting access to judicial records); 66 Am.

Jur. 2d Records and Recording Laws § 15 (1973); 20 Am. Jur. 2d Courts § 62 (1965). In this case, however, the disclosure that appellant had on occasion furnished his erstwhile counsel ⁹⁰ with false information was also communicated by the then attorney to Judge Raine, to the appellant’s employer, and to the Pre-trial Release Division of the circuit court. The communication took the form of a carbon copy of the attorney’s letter to appellant being directed to each of the above named.

We are compelled to deduce that appellant was fully aware, or should have been, that the letter’s content was known to the prosecution. Notwithstanding that knowledge, appellant elected to call his former lawyer as a character witness. The transcript disclosed the following: “Direct Examination. By Mr. Buchman: Q. How long have you known him?

A. I have known Mr. Beckette since I was about twenty-one, which would be about fifteen years. Q. Did you at one time earlier represent him in these proceedings? A. Yes, and other proceedings. Q. As a result of your acquaintance with Mr. Beckette, have you been able to form any opinion as to his reputation for truthfulness and veracity?

A. Yes. Q. What is your opinion? A. I would say yes, Mr. Beckette is truthful. Q. Would you believe him under oath?

A. Yes, sir. Q. Have you formed an opinion of his reputation in the community as a peaceful law-abiding person? A. Yes, sir. I have had an opportunity to do that since we worked together [in] the Essex Council, and I would say his character is ⁹¹ generally peace-loving, and he is an upstanding character in the community.

Cross Examination By Mr. O’Connell [Assistant State’s Attorney]: Q. I believe you were also at one time Mr. Beckette’s attorney, is that correct? A. Yes, sir. Q. Did you have occasion one time to send him correspondence, particularly January 26th, 1975? Mr. Buchman: Your Honor, I would object to a confidential communication between client and lawyer.

The Court: I don’t know what he is getting at. Overruled. What is the answer . . .? A.

(By the witness) I don’t remember it. Mr. O’Connell: May we approach the Bench? It would probably save a lot of trouble. The Court: All right.

(Conference at the Bench.) 1 4 1 The Court: Read back the last question. (Whereupon, reporter read back the following question: Question: Did you have occasion one time to send him correspondence, particularly January 26th,1975?) The Court: There was an objection made, and overruled. ⁹² A. (By the witness) The answer is, Your Honor, I don’t remember. I sent him correspondence.

I could have sent correspondence on that date. Q. (By Mr. O’Connell) In addition, . . . did you file a motion to strike your appearance in this case? Mr. Buchman: Objection.

The Court: Overruled. A. Yes. Q. Along with that, did you file a letter dated January 26th, 1975, addressed to Mr. James Daniel Beckette? Mr. Buchman: Objection.

The Court: Overruled. A. Yes; Q. I believe you just testified that Mr. Beckette has been a truthful man, is that correct? A. Yes. Q. Did you not in that letter — Mr. Buchman: I object to the question he is about to ask.

The Court: Does the question — Mr. Buchman: It refers to something — The Court: Finish the question. Q. Did you not on January 26th, 1975 state to Mr. Beckette — Mr. Buchman: Again, Your Honor, I object. Mr. O’Connell: I quote — The Court: Wait a minute — he has raised an objection. The basis of your objection as we discussed at the Bench is privileged communication between lawyer and client?

Mr. Buchman: Yes. The Court: I think he lost that when he testified as to his reputation in the community where he lives. Overruled. Finish the question.

Q. (By Mr. O’Connell) Did you not also state to Mr. ⁹³ Beckette, ‘You have given me false information on occasion.’ ? A. Yes. Mr. O’Connell: I have no further questions.

Mr. Buchman: Your Honor, I object and move that the question and answer be stricken. The Court: Overruled. Redirect Examination By Mr. Buchman: Q. . . . did that refer to his relationship with his wife? A. Yes.

Q. Nothing to do with this case? A. No. Q. You had asked him to be sure that he stayed away from his wife and he violated that instruction part? A. Yes, and at that time I represented him in a domestic situation between him and his wife. Q. And he did not follow your instructions with respect to this domestic situation?

A. No.” (Emphasis supplied). It is the witness’s testimony, based upon his acquaintance with appellant which led to the witness’s forming and expressing an opinion as to appellant’s truthfulness, that allowed the State to cross-examine the witness for the purpose of impeachment. Recently, in Taylor v. State, 28 Md. App. 560 , 346 A. 2d 718 (1975), cert.