Mazzone v. State

WILNER, Chief Judge. Appellant, Roland Mazzone, was convicted in the Circuit Court for Baltimore County on four counts of conspiracy to violate the controlled dangerous substance laws, for which he received substantial terms of imprisonment. He makes four complaints in this appeal, three of which concern wiretaps that were placed on his home and business telephones. His fourth complaint goes to the court’s refusal to permit one of his two attorneys to remain in the case because that attorney also represented appellant’s wife, who had been charged as well.

It will not be necessary for us to address most of the issues raised by appellant, for we find that the wiretap orders were invalid and that the court erred in denying appellant’s motion to suppress the evidence obtained as a result of them. Underlying Facts The relevant facts are not in dispute. In June, 1989, the Harford County Narcotics Task Force began an investigation into suspected cocaine distribution by one Carl Briscoe. In the course of that investigation, the task force came to suspect that appellant was associated with Briscoe in the distribution ring.

Appellant lived and did business in Baltimore County. On June 19, 1991, the State’s Attorney for Baltimore County filed with a judge of the Circuit Court for that county ex parte applications to intercept and record conversations to and from two telephones — one at appellant’s home and one at his business, Valley View Inn — for a 30-day period commencing June 20 and ending July 20, 1991. The judge promptly granted the State’s Attorney’s application. On June 19, he signed four orders authorizing the requested interceptions.

Two of the orders were directed to the telephone company; they required the company to furnish assistance to the designated police officers to accomplish the two wiretaps. The other two orders specifically authorized the interceptions, more or less as requested, subject to certain conditions. In those orders, the court directed that the interceptions be conducted “in such a way as to minimize the ⁴⁹³ interception of communications not otherwise subject to interception of communications under Title 18, United States Code, Section 2510-2520 , and the Courts and Judicial Proceedings Article, Section 10-401 through 10-414, of the Annotated Code of Maryland.” Contemporaneously with these orders, the judge also approved in writing Minimization Guidelines which were to apply to the authorized interceptions. In those Guidelines was a section dealing with privileged communications.

It stated, in relevant part: “Under Maryland Law, we will be concerned with privileged communications involving lawyer-client, husband-wife, priest-penitent, accountant-client and psychiatrist/psychologist-patient relationship. Contact the above listed Assistant State’s Attorneys for Baltimore County for instructions if you anticipate that you are about to monitor such a conversation and cannot affirmatively decide to minimize it completely. If it appears that the communication does discuss the commission of a designated crim,e itself the privilege is breached and the whole conversation is to be monitored. If it appears that the communication might discuss the commission of a designated crime then spot monitoring shall be employed.

If the communication does not involve the commission of a crime then the privilege applies absolutely and must be completely minimized as soon as the speakers identify themselves. All husband and wife communications are privileged; but discussions which involve the commission of the designated crime may be intercepted. All other communications must be minimized and spot monitoring must be employed carefully” (Emphasis added.) On July 12, 1991, pursuant to further ex parte applications by the State’s Attorney, the court terminated the interceptions authorized by the June 19 order and entered new orders authorizing a continuation of the interceptions on the two telephones that were the subject of the June 19 order and two ⁴⁹⁴ additional telephones located at Valley View Inn. As it had done before, the court implemented this new authority through four orders directed to the telephone company (one for each telephone), four orders authorizing the interceptions (one for each telephone), and one set of Minimization Guidelines approved in writing by the court.

In the Minimization Guidelines approved on July 12, the court stated initially that the Minimization Guidelines approved on June 19 “will also apply to the operational procedures” authorized on July 12, except that “the following changes will be incorporated.” Among those changes was a section dealing with privileged communications, which stated: “Information gathered from the wiretaps conducted over Roland Mazzone’s residence telephone as well as the business telephone of the Valley View Inn has identified Mazzone’s wife, Elizabeth Ann, as being involved in this illegal controlled dangerous substance operation. Thus the privilege that is afforded to them under Maryland Law as husband and mfe is breached during the interception of conversations that pertain to Mazzone’s illegal drug activity. All other instructions found under this subheading in the attached Minimization Guidelines dated June 19, 1991, will be followed during the intercept of the telephone lines identified herein.” (Emphasis added.) The record indicates that some conversations between appellant and his wife were intercepted and recorded, although it is not entirely clear how many. 1 One of the officers monitor ⁴⁹⁵ ing the operation acknowledged during the suppression hearing that “information obtained as a result of the intercepted calls between Mazzone and his wife, either the information directly or indirectly obtained as a result of those calls was used before the Grand Jury.” The content of two such conversations was admitted into evidence at trial. The first was a call from Mazzone to his wife at home on June 24,1991, during which Mrs. Mazzone insisted that appellant bring some cocaine home with him — that he should not “come home empty handed.” The second was a call from Mrs. Mazzone to appellant at the Valley View Inn, in which she informed him that David Vita had arrived at their house.

Evidence was presented that Mr. Vita was appellant’s supplier. Discussion Appellant urges that, in authorizing the wiretaps, the court erred in its conclusion that the privilege for marital communications did not apply (or was waived or breached) with respect to conversations between appellant and his wife dealing with criminal activity and that, as a result, the order was not in strict compliance with the requirements of applicable State law. The entire order, he therefore asserts, was invalid, and all communications that were intercepted pursuant to those orders must be suppressed. The State acknowledges that, under the holdings in Coleman v. State, 281 Md. 538, 380 A.2d 49 (1977) and State v. Enriquez, 327 Md. 365 , 609 A.2d 343 (1992), marital communications remain privileged even if they concern criminal activity, and that, to the extent the Minimization Guidelines stated otherwise, they were wrong.

The State argues, however, that the Minimization Guidelines are not part of, or “preconditions” to, the ex parte orders themselves but merely implement those orders and that, as a “post condition,” minimization is not required to be in strict compliance with the statutory requirements but only in substantial compliance. Regarding the offending intercepts as mere “snippets,” it contends that there was substantial compliance and that the orders themselves should not be declared invalid because of this minor ⁴⁹⁶ transgression. This, of course, goes to appellant’s broad-scale attack on the wiretap orders themselves. The State defends the admission of the two offending conversations into evidence solely on the ground of harmless error.

We begin our analysis by reviewing briefly the nature of the privilege for marital communications. In Coleman v. State, supra, 281 Md. 538 , 380 A.2d 49 , the Court discussed the origin and scope of that privilege, as currently set forth in Md.Code Cts. & Jud.Proc. art., § 9-105. It explained, first, the jurisprudential basis for the privilege: “The policy reasons underlying the privilege for confidential communications between husband and wife are (1) that the communications originate in confidence, (2) the confidence is essential to the relation, (3) the relation is a proper object of encouragement by the law, and (4) the injury that would inure to it by disclosure is probably greater than the benefit that would result in the judicial investigation of truth.” Id. at 541, 380 A.2d 49 . In considering the application of the privilege, the Court held that communications between husband and wife occurring during the marriage are deemed confidential “if expressly made so, or if the subject is such that the communicating spouse would probably desire that the matter be kept secret, either because its disclosure would be embarrassing or for some other reason.” Id. at 542 , 380 A.2d 49 .

It is not necessary, the Court continued at 543, 380 A.2d 49 , that the spouse claiming the privilege establish the confidential nature of the communication, for “[gjenerally, the courts have presumed that communications between husband and wife are confidential and privileged----” That presumption can be rebutted, and it is rebutted where it is shown that the communication “was not intended to be confidential, or was made to, or in the presence of a third party.” Addressing more particularly the issue raised here, the Coleman Court noted that the presumption of confidentiality applies particularly where “the marital communication amounts to an admission or confession of a crime.” In that ⁴⁹⁷ regard, the Court reversed a holding of this Court that the privilege was not applicable “where the confidential communication is made in furtherance of a crime.” Id. at 545 , 380 A.2d 49 . Rather, it held that, as no such exception was stated in the statute, the privilege was indeed applicable to those kinds of communications, citing as authority a 1946 Louisiana case and a 1936 Missouri case. This holding was confirmed in State v. Enriquez, supra, 327 Md. 365 , 609 A.2d 343 , where the Court held privileged and inadmissible a statement by the defendant to his wife apologizing for having viciously assaulted her. It noted that, in the 15 years since Coleman had been decided, the Legislature had taken no action to add any express exceptions to § 9-105, and so “we conclude that it intended that our interpretation of the statute in Coleman should obtain.” Id. at 373, 609 A.2d 343 .

These two cases establish that (1) marital communications are presumed to be privileged, and (2) because they are privileged, they are also inadmissible in evidence. Although, as we indicated, the Coleman Court held that the presumption of privilege may be rebutted by evidence that the communication was not intended to be confidential, as where it is made in the presence of a third party, we do not take that to mean that the presumption is rebutted where, as here, the presence of the third party is unknown to the couple. Indeed, the Legislature has made that unmistakably clear in this particular context by declaring in Cts. & Jud.Proc.