Cutchin v. State

JAMES R. EYLER, Judge. Appellant, Douglas Alphonso Cutchin, Jr., was convicted by a jury in the Circuit Court for Prince George’s County of manslaughter by motor vehicle, homicide while driving intoxi ⁸⁴ cated, homicide while driving under the influence of alcohol, driving while intoxicated, driving under the influence of alcohol, negligent driving, failure to return to the scene of an accident, and failure to render assistance. After merger for purposes of sentencing, the circuit court sentenced appellant to ten years’ imprisonment for the conviction of manslaughter by motor vehicle and five years’ imprisonment for the conviction of failure to return to the scene of an accident, to be served concurrently. The court suspended all but eighteen months.

Questions Presented 1. Did the trial judge’s admission of hearsay identifying the appellant as the driver violate the appellant’s right of confrontation? 2. Did the trial judge err in ruling that appellant’s statements to his liability insurer about the accident were not protected from disclosure? 3. Did the trial judge err in refusing to grant a new trial after defense counsel discovered that certain exhibits had gone to the jury without the redactions agreed to by the judge?

We shall answer the third question in the affirmative and reverse the judgments. For the guidance of the parties and the circuit court, we shall answer the first two questions in the negative. Facts On August 19,1999, appellant and his friend, Tony Gardner, were in a motor vehicle that went out of control and struck a tree. Gardner died as a result of injuries received in the accident.

Matthew Dellinger, a witness for the State, testified that as he approached the scene of the accident, he noticed someone stagger in the road and then enter a wooded area. He noticed the car that had been involved in the accident, as well as a second car with three unidentified individuals standing near it, ⁸⁵ who had stopped because of the accident. Dellinger explained to the individuals, two males and a female, that he had seen someone in the roadway. One of the individuals stated that the person was the driver of the vehicle involved in the accident.

Dellinger noticed a person, later identified as Gardner, in the back seat of the accident vehicle. Shortly thereafter, the unidentified individuals who had stopped because of the accident left the scene. When the police arrived, Dellinger explained that he had seen a man in the roadway and pointed out where he had seen the man enter a wooded area. The police officers testified that they found appellant lying in the woods.

Appellant was combative and intoxicated but ultimately was subdued and restrained. Subsequent tests reflected a blood-alcohol level of 0.19 percent, and a blood test was positive for marijuana. James St. Hill, a State Farm Insurance Company adjuster, also testified for the State. He stated that appellant’s wife was the holder of a liability policy issued by State Farm, and appellant was a listed driver on the policy.

Gardner was not listed on the policy. St. Hill testified that, on November 2, 1999, he participated in a conference call with appellant and appellant’s attorney. At that time, St. Hill took a recorded statement from appellant. Appellant did not identify the driver of the vehicle in that statement.

St. Hill testified, however, that the recording device apparently stopped and, according to his notes, appellant told him that Gardner was driving the vehicle at the time of the collision. In light of St. Hill’s testimony, which seems favorable to appellant, we elaborate on appellant’s complaint. Appellant explains that the State attacked the credibility of St. Hill and appellant by implying that appellant told St. Hill he was the driver, and St. Hill omitted it from the statement. The State contended St. Hill omitted it because it was in the interest of appellant and State Farm, with respect to appellant’s criminal defense and civil defense, if a civil suit were filed, for Gardner to be the driver. ⁸⁶ Sergeant Robert Stratton testified for the State as an accident reconstruction expert.

He opined that appellant had been seated behind the steering wheel, and Gardner had been seated in the right front seat at the time of the -collision. Charles Pembleton testified for the defense as an accident reconstruction expert. He opined that Gardner had been driving the vehicle at the time of the collision. Discussion 1.

After a hearing out of the presence of the jury, Dellinger was permitted to testify that an unidentified individual at the scene of the accident told him that appellant was the driver of the vehicle. The statement was admitted as an excited utterance or as a present sense impression, both exceptions to the hearsay rule. See Md. Rule 5 — 803(b)(1),(2). Appellant does not contest application of the exceptions; rather, he contends that admission of the evidence violated his constitutional right to be confronted by the witnesses against him.

Appellant states that the Supreme Court has held that a hearsay statement is admissible only if it bears adequate indicia of reliability. Appellant recognizes that the Supreme Court has stated that reliability can be inferred when the evidence falls within a firmly rooted hearsay exception. See Ohio v. Roberts, 448 U.S. 56, 65-66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). Appellant further recognizes that excited utterance and present sense impression are firmly rooted exceptions, but argues (1) there is no way to determine whether the declarant’s statement was based on observations or was merely a conclusion, (2) the identification was not sufficiently connected to the startling event to be reliable, and (3) the declarant was unidentifiable.

In essence, appellant challenges reliability and trustworthiness and maintains that, because the declarant was unidentified, the court should apply a higher standard of scrutiny. See Parker v. State, 365 Md. 299, 315 , 778 A.2d 1096 (2001). ⁸⁷ In Parker , the Court of Appeals evaluated the admissibility of unidentified declarants’ statements, admitted into evidence under the excited utterance exception. The defendant claimed that the trial court erred in admitting the statements because “the officer [testifying] had no knowledge of the declarants’ whereabouts at the time of the shooting and could not, therefore, establish that the women personally observed the incident.” Parker, 365 Md. at 312 , 778 A.2d 1096 . The Court first agreed with the defendant that “where the hearsay declarant is unidentified, heightened scrutiny of the purported excited utterance is appropriate,” because the indi-cia of reliability are less clearly present.

Id. at 315 , 778 A.2d 1096 . The Court then explained that the declarants were merely unnamed, rather than unidentified, since the officer testifying described the declarants, witnessed their emotional condition, and discussed the incident (a shooting) with them. Regarding the personal knowledge requirement, the Court opined that, because the police officer arrived within minutes of the shooting and observed that the women were visibly upset, and because the women said they were present during the shooting and described the event in detail, the State had satisfied its burden. See id. at 315-16 , 778 A.2d 1096 .

The Court concluded by finding that the content of the statements and the surrounding circumstances were sufficient proof that the women personally observed the shooting and that the descriptions of the gunman and the car were given under the excitement of the situation. The trial court properly admitted the statements into evidence. Id. at 318 , 778 A.2d 1096 . The factual situation in the case before us is similar to Parker .

Dellinger testified that the conversation occurred approximately one and one-half minutes after the accident. Dellinger observed that the declarant was visibly agitated. The declarant indicated that she was present when appellant exited the vehicle and described the accident to Dellinger. In addition, Dellinger testified that the driver’s side door was ⁸⁸ open when he arrived.

At a hearing outside the presence of the jury, Dellinger testified that one of the males identified the person as the driver, whereas before the jury, he testified that he thought it was the woman who made that statement. At the hearing outside the presence of the jury, Dellinger also testified, however, that all three persons agreed on the observation. As in Parker , the declarant’s observations with respect to the driver of the vehicle were “ ‘part and parcel of their experience of the startling event.’ ” Id. at 317 , 778 A.2d 1096 (quoting Parker v. State, 129 Md.App. 360, 395-96 , 742 A.2d 28 (2000)). In Parker, the Court stated that the content of the statements and the surrounding circumstances showed that the declarants observed the shooting involved in that case.

In the case before us, the declarant indicated that she was present when appellant exited the vehicle. Even under the heightened scrutiny standard, we perceive no error in the circuit court’s ruling on this issue. 2. Appellant, implicitly recognizing that there is no insured-insurer privilege, contends that his statements,, as an insured, to St. Hill, as a representative of his liability insurer, were protected by the attorney-client privilege. 1 Appellant points out that the driver of the vehicle was not identified in the recorded portion of the statement, but St. Hill testified that, based on his notes of the conversation, appellant told him that Gardner had been driving the vehicle. The State argued that ⁸⁹ the omission in the recorded statement was intentional because it was in the interest of both appellant and State Farm that appellant not be the driver.

In support of his contention that his statements to St. Hill were privileged, appellant acknowledges that there is no Maryland appellate opinion on point and relies on cases from other jurisdictions taking the “broad view” of the attorney-client, privilege in insured-liability and indemnity insurer relationships. The State initially suggests that the issue has not been preserved for appeal. The State maintains that because appellant’s attorney cross-examined St. Hill regarding the substance of appellant’s communications, the right to appeal the issue of privilege has been waived. Prior to trial, appellant’s attorney moved to quash a subpoena directed to St. Hill’s file.

The motion was denied. After the file was produced over objection, its contents were ultimately admitted into evidence over objection. The subsequent cross-examination of St. Hill by appellant’s counsel did not effect a waiver of the privilege. Further, the State argues that, in circuit court, the issue was limited to whether the attorney-client privilege between appellant and his attorney protected the statement in question and whether that privilege was waived by St. Hill’s presence on the telephone.

Appellant’s attorney did reference the privilege now being argued, however, acknowledging that there was no Maryland case on point. While appellant could have made his present argument more clearly, we hold that the issue was preserved. 2 The Maryland attorney-client privilege is contained in Md.Code, Courts and Judicial Proceedings, § 9-108, and reads, “[a] person may not be compelled to testify in violation of the attorney-client privilege.” The attorney-client privilege ⁹⁰ is a rule of evidence that prohibits disclosure of a communication made in confidence by a client to an attorney to obtain legal advice. See Blair v. State, 130 Md.App. 571, 605 , 747 A.2d 702 (2000). The privilege includes communications to agents employed by an attorney.

See Pratt v. State, 39 Md.App. 442, 447 , 387 A.2d 779 , aff'd, 284 Md. 516 , 398 A.2d 421 (1979). In Parler & Wobber v. Miles & Stockbridge, 359 Md. 671 , 756 A.2d 526 (2000), the Court of Appeals discussed the rationale behind, as well as the importance of, the attorney-client privilege. The public policy behind the privilege is to encourage the free flow of information between clients and their attorneys, enabling attorneys to more effectively represent their clients. Because the privilege withholds relevant information from the fact finder, however, it should be narrowly construed.

Parler & Wobber, 359 Md. at 691 , 756 A.2d 526 . Additionally, because this is a criminal case, we note that, “while never granted express constitutional lineage in criminal cases, the privilege is linked to the constitutional guarantee of effective assistance of counsel and that strict limitations on its application could undermine this basic guarantee.” Id. at 691 , 756 A.2d 526 ; see also State v. Pratt, 284 Md. 516, 519-20 , 398 A.2d 421 (1979) (discussing the origin of the attorney-client privilege in Maryland). The applicability of the attorney-client privilege to insured-liability or indemnity insurer communications has yet to be determined in Maryland. 3 Many jurisdictions have addressed the issue, however. As explained in an A.L.R. annotation, “[tjhere are two views as to the application of the attorney-client privilege to communications between an insured and its liability or indemnity insurer: the broad view and the narrow view.” John P. Ludington, Insured-Insurer Communications ⁹¹ as Privileged, 55 A.L.R.4th 336 , 340 (1987).

Those jurisdictions adopting the “broad view” hold that an insured’s communications to its liability or indemnity insurer with respect to an incident potentially giving rise to liability under the policy are protected from disclosure by the attorney-client privilege, 4 and many jurisdictions following the “narrow view” have found no privilege. 5 See Ludington, 55 A.L.R.4th at 340-41. While the annotation classifies the decisions as indicated, our review of them indicates that many turn on their facts and few, if any, truly stand for the proposition that all insured-liability or indemnity insurer communications are privileged, or the proposition that none are privileged. One of the earliest cases to hold insured-insurer communications privileged was People v. Ryan, 30 Ill.2d 456 , 197 N.E.2d 15 (1964). Ryan, an attorney, was found