McClelland v. State

Orth, J., delivered the opinion of the Court. The appellant was found guilty of the crime of riot at a court trial in the Criminal Court of Baltimore and sentenced to imprisonment for a term of 10 years “consecutive with any sentence now serving.” On appeal from this judgment the appellant first presents the question, accepted by the State, “Was the defendant, Harry LaRue McClelland, denied his constitutional right of the effective assistance of counsel guaranteed by Amendment VI of the Federal Constitution?” The question was raised below by three motions filed by the appellant prior to the trial on the merits. 1 A motion to dismiss the indictments was filed on 28 March 1967. It was denied at a hearing thereon on 10 April 1967, without evidence being produced, for the reason that accepting the al ²⁰ legations set forth in the motion as true, they would not affect the validity of the indictment. Upon denial of the motion, a motion “for appropriate relief” was filed, setting forth the same allegations contained in the motion to dismiss.

Evidence was received with regard to this motion. During the period 19 December to 30 December 1966 the appellant had written eight letters and during the period 19 January to 3 February 1967 at least five letters, each addressed to his counsel and submitted to the prison authorities to be mailed. 2 Several of the letters were returned to him by the prison authorities because they were sealed contrary to prison regulations. 3 On 16 January 1967 the appellant was placed in solitary confinement and he claimed that when he was returned to his cell on 19 January carbon copies of letters he had written to his attorney were missing. Upon his transfer to Patuxent Institution on 3 February three letters that had been returned to him unmailed and carbon copies of certain other letters to his attorney were taken. 4 On 6 April the warden of the penitentiary gave the Assistant State’s Attorney of Baltimore City prosecuting the instant case certain documents from the institution’s records pertaining to the appellant. Included among those documents were two photocopies and three carbon copies of letters from the appellant to his attorney.

Defense counsel’s personal secretary testified that she received and recorded all mail to counsel from the appellant and that her records showed that six letters had been received, ²¹ two of which bore the same date as the two photocopies and two of which bore the same date as the carbon copies in the possession of the State. Prison records showed that defense counsel had private interviews with the appellant at the penitentiary on 19 December 1966 and 19 January 1967.® The appellant testified that he knew that his unsealed letters to his attorney would be censored by prison authorities. He stated that he wrote the letters because his atttorney was not able to come to the penitentiary as frequently as he would have liked and that he had too much material to memorize and tell his attorney at a personal interview. An inmate of the penitentiary testified that the assistant warden “threatened” him on 13 July 1966, a few days after the riot, telling him that if he testified at the appellant’s trial or told “anybody what has occurred in these cells,” he would not be released from the mental observation cell where he was confined. 5 6 He further said that shortly after 10 February 1967 when he was awarded a new trial on a post conviction hearing both the warden and assistant warden told him that if he testified at the appellant’s trial “they would push for a re-trial” on his charges and “if I didn’t they wouldn’t retry me on those charges.” A proffer by the appellant of the testimony of five inmates was accepted by the court.

The proffer was to the effect that the inmates were threatened by prison authorities with reprisals if they testified at the appellant’s trial. One would also testify that he was told his name had been in a letter written by the appellant and another would testify that he was shown a letter from the appellant to his attorney in which it was stated that the appellant had valuable information and wanted to see the attorney. ²² The lower court denied the motion, whereupon the appellant filed a second motion “for appropriate relief” containing the same allegations as in the prior motion and as an additional ground in support thereof stated that the prosecuting authorities had received copies of letters from the appellant to his attorney. By agreement all the evidence received with regard to the prior motion was accepted as to the second motion and in addition the testimony of the Assistant State’s Attorney was received. He testified that he received two photocopies of letters and three carbon copies of letters from the appellant to his attorney from the warden on 6 April 1967.

He read the letters for the first time on 8 April and did so because, in his opinion, they would be relevant to the motion to dismiss which alleged that certain letters of the appellants had been censored and seized. He said that no information in the letters was utilized to prepare for the prosecution of the case and that, in fact, there was no information in the letters helpful to the prosecution. The letters, admitted in evidence, did not contain information about the crime for which the appellant was charged, but about irregularities in the conduct of the prison and the treatment of its inmates. The lower court denied the second motion “for appropriate relief.” In disposing of the two motions the lower court, noting that the appellant had been indicted for certain offenses which occurred while he was an inmate in the penitentiary, said that “in an institution of a penal nature, a certain amount of security regulation is basic, that discipline is necessarily strict to insure security and the general welfare of the institution; that censorship of mail is a recognized part of these precautions, and that all of these security regulations, and types of activities are known to the inmates.” It found that there was no evidence to show that the appellant was “any exception to this rule,” or that he was not in a position to know of the regulations, and to be constrained to conform to them.” It found as a fact that arrangements had been made to give an unlimited number of visits-by attorneys to their clients and that the visits could be made, not only at the regular visiting hours, but at unusual hours and that privacy would be insured between attorney and client. “So-that the basic way of communicating confidential information ²³ from a client to attorney, in an atmosphere where the client knows that the letters are going to be censored, * * * would be by a face to face confrontation and disclosure of information.” It further found that no letters from the appellant to his attorney were improperly intercepted, confiscated or destroyed and no-showing that the mail handling was improper and that even if it had been improper, there was no showing that it had “any detrimental effect on the communication of information proper and necessary to the defendant’s defense.” Although there were allegations that since the appellant made statements in his letters that other inmates “were going to testify to certain events or transactions,” the censorship of the letters enabled the prison authorities to learn of this and “that they then intimidated these witnesses to the extent that they would not thereafter testify beneficially to the defendant,” the lower court found that “the evidence does not disclose that any testimony which McClelland thinks is beneficial to him, and which he thinks would come from these inmates, has been suppressed; or, he has been deprived of it, by virtue of these alleged threats and intimidations.” The lower court stated that “a communication between attorney and client lacks the element of confidentiality when it is made under such circumstances that its revelation is to be expected.

So that if it is discussed in the presence of a third party, and particularly an adverse third party, then the law will assume that the attorney and the client intended to communicate something confidential in the presence of some party whose interests were adverse to theirs.” The court reasoned that both the appellant and his attorney “knew or had very good reason to believe” that what was put into a letter would be “subject to scrutiny of the penitentiary authorities” and therefore was no different than communicating something in the presence of a third person and therefore lacked “the neccessary element of confidentiality.” Correspondence between the appellant and his attorney was shown by the evidence to have been one method and “at best an imperfect method” of communicating information, particularly where the attorney and his client were separated only by “some fifteen or twenty city blocks, with an unlimited right of private visitation available.” The court found as a fact that the communications by letter between the appellant and his attorney ²⁴ lacked the element of confidentiality. The lower court further found the photocopying of the appellant’s letters was not done for the purpose of supplying the prosecuting authorities with information to be used in the prosecution of the case or in obtaining the indictments which were returned some months before the acts of which the appellant complained. The prosecuting authorities received the copies of the letters only a few days before trial “when presumably all of the prosecution’s witnesses had been interviewed and the case was ready for trial, apparently, for some time * * * It certainly would seem to have had little purpose in attempting to intercept these allegedly confidential communications, to transmit to the State’s Attorney many months after the case had already reached trial state.” We think that the evidence before the court was sufficient to support its factual findings and we find that it did not err in denying the motions. The relief sought by the appellant in all of his motions was included in his prayer for relief in the third motion filed by him.

As stated in his brief he requested: “(1) A continuance until the taint of unlawful interference with communication between client and attorney has been removed; or (2) That the Court find, as a fact, that the confidential relationship between lawyer and client had been so severely impaired as to prevent a fair trial; or (3) A dismissal of the indictments.” The lower court found that there was “no sufficient showing to justify the relief prayed.” The second and third motions were again offered at the conclusion of all the evidence at the trial on the merits and denied. The Sixth Amendment to the Constitution of the United States provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” Gideon v. Wainwright, 372 U. S. 335 held that this right was made obligatory on the states through the Fourteenth Amend ²⁵ ment and that an accused has a right to counsel at his trial. He is also entitled to the assistance of counsel at other critical stages of the proceedings against him, for example at his appearance in a line-up, 7 during the conduct of a custodial interrogation 8 and on direct appeal from his conviction. 9 When he has the assistance of counsel, that counsel must afford him a genuine and effective representation going to the fundamental fairness of the trial, and if such representation is not afforded him, by reason of his counsel’s competency or conduct, his conviction cannot stand. 10 In the instant case the appellant was represented by highly competent counsel, experienced in the defense of criminal cases, and, it is not alleged, nor does the record in any way show, that the representation by counsel himself was other than genuine and effective. But an essential ingredient of the Sixth Amendment’s right to counsel is the right of the defendant and his counsel to prepare for trial without intrusion upon their confidential relationship by an agent of the state, the defendant’s trial adversary. 11 Such an intrusion may vitiate a conviction and afford the defendant a new trial, not because of the fact of the intrusion but because the effect of it was to deny the defendant a fair trial. 12 Thus the question presented by the appellant ²⁶ must be related to his trial and the motions made by him are properly considered as of the time they were denied when re-offered at the conclusion of all the evidence at the trial on the merits.

We think that the true issue before us is more clearly stated in the following form: Did the conduct of the State and its agents render the trial at which the appellant was convicted unfair to him? We are supported in our conclusion as to the proper posture of the issue before us by other cases involving the right of a defendant and his counsel to prepare for trial without intrusion upon their confidential relationship by the prosecuting authorities or their agents. Both Caldwell v. United States, 92 U. S. App. D. C. 355, 205 F. 2d 879 and Coplon v. United States, 89 U. S. App. D. C. 103, 191 F. 2d 749 dealt with government intrusion of the grossest kind upon the confidential relationship between the defendant and his counsel. “In Coplon , the defendant alleged that government agents deliberately intercepted telephone consultations between the defendant and her lawyer before and during trial.” Quote from Hoffa v. United States, supra, 385 U. S. at 306-307. In Caldwell , the agent, “[i]n his dual capacity as defense assistant and Government agent * * * gained free access to the planning of the defense. * * *