Newman v. State

GREENE, J. Appellant, Elsa Newman, was convicted in a jury trial before the Circuit Court for Montgomery County, (Rupp, J., presiding) of conspiracy to commit murder in the first degree, attempted murder in the first degree, first degree assault, first degree burglary, and use of a handgun in the commission of a felony or crime of violence. She was sentenced to a total of twenty years incarceration. Appellant filed a timely appeal in this Court alleging a panoply of errors. Perceiving no reversible error, we affirm the conviction. ³⁰ Issues Appellant presents eight questions of varying degrees of validity for our review: 1.

Did the trial court err in denying appellant’s motion to order the disqualification of the Montgomery County State’s Attorney’s Office for violations of the attorney-client privilege? 2. Did the trial court err in allowing appellant’s domestic relations attorney to testify about confidential attorney-client communications? 3. Did the trial court err in denying appellant’s requested voir dire concerning the potential bias of members of the jury panel? 4. Did the trial court err in denying appellant’s motion for a mistrial upon the State’s eliciting testimony about appellant’s exercise of her constitutional rights to counsel? 5.

Did the court err in allowing the State to introduce evidence in its case in chief? A. Characterizations of Ms. Newman and her relationship with Ms. Landry. B. Evidence of an unrelated fraud allegedly committed by appellant and Ms. Landry. C. Testimony about the credibility of child abuse allegations against appellant’s ex-husband and in limiting appellant’s ability to cross-examine that opinion.

D. Testimony about the conveyance of funds between Ms. Newman and Ms. Landry during the divorce proceedings. 6. Did the trial court err in denying appellant’s requested instructions regarding the law of self-defense? 7. Was the evidence sufficient to convict appellant of any count? 8. Did the trial court err in denying appellant’s motion for a new trial ³¹ FACTS AND PROCEEDINGS After a six-day jury trial, appellant was found guilty of a number of charges arising from the attack on appellant’s ex-husband, Arlen Slobodow, by her best friend, Margery Landry. 1 During the trial, the State proved to the jury’s satisfaction that appellant and Landry conspired to kill Slobodow because they believed he was sexually abusing the couple’s two sons, Lars and Herbie.

The State’s theory of the case was that appellant and Landry had grown increasingly desperate to protect the two boys from Slobodow after their numerous complaints of child abuse were closed “unfounded.” In their desperation, appellant and Landry conspired to have Landry break into Slobo-dow’s house and kill him while appellant was in New Jersey at a family wedding. The plan also included planting child pornography in Slobodow’s house to “prove” that the allegations of child abuse were correct, thereby vindicating appellant and returning custody of the children to her. The State offered testimony of appellant’s former domestic relations attorney, Steven Friedman, that appellant and Landry had conspired to kill Slobodow, as well as to kill one of the children in his presence in an effort to “save” the other. They also offered the testimony of Friedman’s former secretary, Sandra Ashley, who said that, while at dinner together, appellant told her that Landry had connections to organized crime and could obtain an untraceable gun.

She also told Ashley that she wanted to kill Slobodow. Appellant took the stand in her own defense and denied the conspiracy. She argued that the evidence establishing her motive, the bitter custody dispute, was also evidence of why appellant would know that she would be a prime suspect and, therefore, likely have her children taken from her. Furthermore, the threats attributed to her were made during a ³² divorce/custody battle, and taken in context, were emotional outbursts not uncommon to the situation.

Lastly, she contended that Landry had her own reasons for wanting to kill Slobodow because of her close relationship as Godmother to the boys. With these theories in mind, we turn to the facts of the evening in question. On January 6, 2002, Arlen Slobodow was asleep in his bed with his five-year old son Lars, when he was pulled from his bed by an assailant wearing all black and a mask. He immediately heard two gunshots and felt a pain in his right leg.

One of the bullets went through Mr. Slobodow’s right leg above the knee. A struggle ensued in which Slobo-dow pulled the mask off of the assailant and discovered Margery Landry. Slobodow knocked the gun out of Landry’s hands and attempted to call the police. Landry grabbed the phone and hit Slobodow about the head and face with the receiver.

Slobodow yelled for his sons to call the police. Landry instructed the children to return to their beds. She then left the bedroom. After Landry left the bedroom, Slobodow dragged himself to the kitchen to try and call the police.

While in the kitchen, Landry again attacked him. He was able to bite her hand and she fled. The police responded at 4:31 a.m. and found Slobo-dow in the dining room with his two sons. Investigation at the house revealed a broken basement window believed to be the entry location.

Blood was found on the windowsill and on leaves just outside of the window. A trail of blood was found leading down the stairs to the kitchen, to the basement, and out the open window. In the basement, the police found a fanny pack containing a box of .9 MM ammunition, a pornographic video tape, books, and magazines. Landry’s finger prints were found on the books and ammunition.

In the bedroom, police found signs of a struggle. There was blood on the floor of the room and a potted plant had been overturned. The police found a Smith & Wesson .9 MM ³³ handgun with the serial number scratched out in the room with an empty magazine and two shell casings. Above the bed were two bullet holes.

A black knit mask with a pair of eyeglasses inside and a torn latex glove were also found in the room. Additional facts will be provided throughout the discussion section. DISCUSSION I. Disqualification of the Montgomery County State’s Attorney’s Office Appellant’s first ground for appeal is that the trial court erred by not disqualifying the entire Montgomery County State’s Attorney’s office for violations of the attorney-client privilege during the discovery process. The violations allegedly occurred during the screening of information removed from appellant’s home pursuant to search warrants issued after the shooting of Mr. Slobodow. 2 Appellant argues that the privileged documents taken from her home were “inappropriately inspected” by prosecutors in the State’s Attorney’s office and that “[t]heir access to the documents gave them insight into this case that they otherwise might not have had.” In short, appellant’s argument is that the State relied on the contentious divorce and custody battle between appellant and the victim to show motive for the attempted murder, the State’s access to the privileged documents allowed them greater insight into the proceedings, and the proper remedy for the violation is disqualification of the entire Montgomery County State’s Attorney’s office.

For the following reasons we do not agree. At the beginning of the June 14, 2002, hearing on the Motion to Disqualify, the trial court properly evaluated the ³⁴ issue. The court said that the State relied on the divorce and custody issues in their case in chief: [Accordingly, unless counsel disagrees, it appears to me that there is a substantial relationship which exists between the subject matter of the privileged communications which were seized pursuant to the search warrant and the prosecution of [appellant] which would make it incumbent upon the State to have established a screening device to preclude the prosecutors in this case from having access or using the information which is privileged communication between Ms. Newman and her attorney or attorneys in the divorce and custody proceedings. The trial court then heard evidence to determine the adequacy of the screening process. 3 Former Assistant State’s Attorney Thomas Eldridge testified that a screening system was established by the State’s Attorney’s office in which “thousands” of documents were separated into three categories: “clearly privileged,” “could be privileged,” and “clearly not privileged.” 4 Deputy State’s Attorney Katherine Winfree, the lead prosecutor in the case, instructed Mr. Eldridge to review the documents in accordance with the above screening procedure.

Mr. Eldrige reviewed the documents for two days at the Bethesda police district before they were moved to a locked room at the State’s Attorney’s office. When asked to characterize his ability to identify “privileged,” “potentially privileged,” and “not privileged,” documents, Mr. Eldridge testified that: ³⁵ Well, I found it was, it was easy to see the things that were clearly privileged and so, I found it fairly easy when they were clearly communications to put those into that category. I found it more difficult because I believe Ms. Newman’s a lawyer and because many of the things that she did with her written material weren’t necessarily clearly directed at her lawyer, those were the ones that were a little harder to categorize, and I tried to err on the side of considering those potentially privileged because, for all I knew, they did, in fact, get sent to one of her lawyers. So, I tried to be conservative, to answer your question.

Mr. Eldridge left the State’s Attorney’s office during his review of the documents. He was replaced by Assistant State’s Attorney Eric Nee of the Economic Crimes Unit of the Silver Spring team. Mr. Nee testified that, in preparation for taking over for Mr. Eldridge, he researched the attorney-client privilege and discussed the procedure with Eldridge. The majority of the documents were reviewed over a two-week period by Mr. Nee.

Nee testified that “I got to the point where I thought if it was possibly privileged just out of—I just, if it was possibly privileged, I’d just put it in the privileged pile.” He further testified that with regard to the final report of appellant’s computer hard drive, he redacted and shredded the privileged material that could be separated from non-privileged information, and blacked-out the privileged information that could not be separated. 5 The blacked-out original was then photocopied so no one could read what was under the blacked-out sections and the original was shredded. The documents deemed “privileged” were returned to the defense and had not been seen by either the State’s attorneys prosecuting the case or the investigators investigating the case. Those documents deemed “not privileged” were turned ³⁶ over to the prosecution and investigation teams and eventually, through discovery, the defense team. On appeal, appellant relies on two documents in particular that she claims were privileged and yet disclosed to the prosecution.

The first is a document taken from appellant’s hard drive that is, to use appellant’s words in the actual document, a “rough list” of events that took place between appellant and Steve Friedman, 6 addressed to an unknown recipient. The second is a series of e-mails back and forth between appellant and Robert E. Juceam, an attorney and friend of appellant’s, discussing a letter appellant was intending to send to the State Department regarding disclosures made by State Department employees to a Montgomery County court appointed attorney for her children in the divorce case. Because there is no case specifically on point, we analogize to similar situations where an agent of the State gains access to information falling within the attorney-client privilege, thereby causing the appearance of impropriety. We find Young v. State, 297 Md. 286 , 465 A.2d 1149 (1983)(Davidson, J. dissenting), and the cases discussed therein, instructive.

In Young , the Court of Appeals was asked to decide if an entire prosecutor’s office should be disqualified when the Assistant Public Defender that was assigned to Young’s case was appointed to the State’s Attorney’s office before the case came to trial. Young argued for a per se disqualification rule. The Court reviewed case law from neighboring states that had addressed the issue. Although some states had adopted a per se disqualification rule based on the appearance of impropriety, others had chosen to allow the trial court to determine if any actual impropriety was to be found.

Id. at 290-295 , 465 A.2d 1149 . The Court of Appeals in Young concluded that a per se rule was not necessary: [T]he mere appearance of impropriety is not of itself sufficient to warrant disqualification of an entire State’s Attor ³⁷ ney’s office, based upon one member’s prior representation of a defendant presently under prosecution. Where disqualification is sought, the trial court must make inquiry as to whether the defendant’s former counsel participated in the prosecution of the case or divulged any confidential information to other prosecutors. Absent an abuse of discretion, the trial court’s judgment on the matter will not be disturbed on appeal.

The Young Court relied heavily on the case of Lykins v. State, 288 Md. 71 , 415 A.2d 1113 (1980), in formulating its position. Lykins also addressed the ramifications of the appearance of impropriety by the State’s Attorney’s office. In Lykins , an Assistant State’s Attorney presented evidence to a grand jury regarding the defendant. The conflict arose because the attorney previously had represented, in an unrelated civil matter, the defendant.

Lykens argued for dismissal of the indictment on the ground that the previous relationship of the attorney and defendant created the appearance of impropriety. The Court held: The proper action to be taken by a trial judge, when he encounters circumstances similar to those in the case at bar which he determines to be so grave as to adversely affect the administration of justice but which in no way suggest the bringing of a prosecution for improper motives ... is to supplant the prosecutor, not bar the prosecution. Of course, a trial judge may determine that the facts presented to him are not sufficiently grave to require even this action. Normally, the evaluation of such circumstances is left to the sound discretion of the trial judge who is upon the scene and able to sense the nuances of that before him.

Ordinarily an appellate court will not interfere with his conclusions as to the proper course of action to be followed in the absence of a showing of an abuse of discretion upon the part of the trial judge. Id. at 85 , 415 A.2d 1113 . In Wiener v. Stale, 290 Md. 425 , 430 A.2d 588 (1981), the Court of Appeals addressed the issue of whether the presence ³⁸ in the Public Defender’s office of an undercover agent of the State in an unrelated matter violated the defendant’s right to effective assistance of counsel. 7 The facts indicated that the agent, a law student, had discussed defense strategy and procedure of Wiener’s case with an investigator in the Public Defender’s office. Relying on the Supreme Court’s opinions in Weatherford v. Bursey, 429 U.S. 545 , 97 S.Ct. 837 , 51 L.Ed.2d 30 (1977) and United States v. Morrison, 449 U.S. 361 , 101 S.Ct. 665 , 66 L.Ed.2d 564 (1981), the Wiener Court remanded the case for a factual determination by the trial court of any prejudice resulting from the agent’s exposure to privileged communication.

Specifically, the Court held: If the trial court concludes on the restricted remand that there has been no prejudice in fact resulting to [the defendant] from the intrusion, then the motion to dismiss should be denied. If the trial court concludes that prejudice has resulted, then the approach should be to neutralize the taint by tailoring suitable relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. Wiener, 290 Md. at 438 , 430 A.2d 588 (internal quotation omitted). Appellant distinguishes Young and Wiener from the instant case by arguing that “[u]nlike in Young and Wiener , however, privileged information was communicated by the reviewing attorneys to the prosecuting attorneys.” The trial court addressed this issue and found that even if documents that should have been screened because of their privileged nature were disclosed to the State, that material was obtained in good faith by the prosecution pursuant to a lawfully executed search warrant and after an ³⁹ appropriate screening mechanism was established to preclude the disclosure of this information.

It’s disclosure to the assigned prosecutors was at best inadvertent, and there is absolutely no prosecutorial misconduct involved in the review of this material that was disclosed to the assigned prosecutors. Even assuming that the assigned prosecutors have inadvertently obtained possession of material that is protected by the attorney-client privilege, the appropriate remedy is to bar the State from using the material in its prosecution of Ms. Newman. 8 Appellant relied on Zaal v. State, 326 Md. 54 , 602 A.2d 1247 (1992), both at trial and on appeal to assert that the State was required to turn all of the seized documents over to the court for its review and privilege classification, in camera. The trial court found Zaal inapplicable because it involved privileged information held by a third party. Zaal involved a request by a defendant in a sexual abuse case to view the student records of his accuser.

The trial court in Zaal conducted an in camera review of the school records. The court determined that there was no information in the documents that would be of such benefit to the defense as to outweigh the privacy interests of the accuser. The court in Zaal found that there were alternatives to in camera review. Quoting from the Supreme Court of Massachusetts in Massachusetts v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991), the Zaal court wrote: Trial judges have a broad discretion to control the proceedings before them.

There is no reason why they cannot take ⁴⁰ steps to ensure that breaches of confidentiality attending discovery are limited only to those absolutely and unavoidably necessary to the preparation and presentation of the defendant’s defense. Zaal, 326 Md. at 84 , 602 A.2d 1247 . The Court went on to list a number of alternative ways to screen privileged information that allowed inspection by the attorneys. The Court concluded that if precautions are taken “such breaches of confidentiality need not be any more intrusive or harmful than those attending in camera review of records by the judge alone.” Id.

(quoting Stockhammer , 409 at 1002). The Zaal court held that on remand “the court may elect to review the records alone, to conduct the review in the presence of counsel, or to permit review by counsel alone, as officers of the court, subject to such restrictions as the court requires to protect the records’ confidentiality.” Zaal, 326 Md. at 88 , 602 A.2d 1247 . We fail to see how Zaal holds, as appellant suggests, that the only appropriate review procedure of privileged information is by in camera review. Our reading of Zaal is that the Court recognized any number of alternative, yet appropriate, review procedures. 9 We find that the screening procedure employed by the State in this case was sufficient to protect appellant’s privacy interest.

Accordingly, we find that the trial court properly exercised its discretion in denying the motion to disqualify the entire Montgomery County State’s Attorney’s office. As in Young , the mere appearance of impropriety is not itself suffi ⁴¹ cient to warrant disqualification of an entire State’s Attorney’s office. Furthermore, if privileged information was disclosed, the proper remedy would be to bar use of the material at trial, not to disqualify the State’s Attorney’s office. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 414 , 718 A.2d 1129 (1998)(holding that the attorney-client privilege is a rule of evidence).

We analogize to situations where the State’s Attorney is privy to confessions later deemed to be in violation of Miranda. The result is suppression of the confession, not disqualification of the prosecuting office, notwithstanding the fact that the prosecution has gained insight, through the confession, that it would otherwise not have had. See New York v. Quarles, 467 U.S. 649 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984)(discussing the exclusionary rule and violations of Miranda); see also Andrew V. Jezic, Frank Molong, & William E. Nolan, Maryland Law of Confessions ch. 14 (2003)(discussing use of evidence from a Miranda violation).

II

The Crime-Fraud Exception to the Attorney-Client Privilege Appellant’s second ground on appeal is that the trial court erred in allowing appellant’s domestic relations lawyer, Steven Friedman, to testify regarding statements made by appellant during his representation of her in the custody and divorce case. As a preliminary matter, we note that the only ground for objection to Mr. Friedman’s testimony that has been preserved for review by this Court is on the basis of privilege. See Md. Rule 4-323(a)( [a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon as the grounds for the objection become apparent.) 10 Furthermore, it is clear from the briefs and transcript in this ⁴² matter that the issue presented by Mr. Friedman’s testimony has been obfuscated. The issue before this Court is not whether Mr. Friedman acted properly when he disclosed certain information to a Circuit Court before the custody hearing on September 4, 2001.

That determination is for another court on another day. 11 This Court is only concerned with the appeal in this case, Elsa Newman v. State, a criminal prosecution for conspiracy to commit murder, among other things. Our review of the relevant case law reveals that the proper issue is whether Mr. Friedman’s court ordered testimony was proper under the attorney-client privilege, not Rule 1.6 of the Maryland Rules of Professional Conduct. 12 Although the two concepts are commonly used interchangeably, there is a legal distinction. Both concepts provide protection from disclosure of confidential information; however, the former controls court ordered testimony and the latter is an ethical obligation to either disclose or refrain from disclosing certain information. The distinction between the ethical rules that govern confidentiality and the evidentiary rule of attorney-client privilege were thoroughly discussed by the Court of Appeals in In re Criminal Investigation No. 1/242Q, 326 Md. 1 , 602 A.2d 1220 (1992) and Parler & Wobber v. Miles & Stockbridge, P.C., 359 Md. 671 , 756 A.2d 526 (2000). ⁴³ As discussed in In re Criminal Investigation No. 1/242Q, [t]he attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. 326 Md. at 5, 602 A.2d 1220 (internal citation omitted). When information is sought from an attorney by compulsion of law, “only the attorney-client privilege, not the broader rule of confidentiality, protects against disclosure.” Id. See also Parler, 359 Md. at 689 , 756 A.2d 526 (quoting In re Criminal Investigation No. 1/242Q). The result is that information sought through discovery must be produced unless protected by the attorney-client privilege.

Parler, 359 Md. at 690 , 756 A.2d 526 (“Thus, relevant evidence sought through discovery, unless protected by the attorney-client privilege, must be produced and the ethical duty of confidence takes a back seat to the quest for truth.”). As Mr. Friedman was under court order to testify in this matter, we find that our inquiry is thus governed by the narrower attorney-client privilege rather than by the broad confidentiality provisions of the Rules of Professional Conduct. The attorney-client privilege is codified in Md.Code (1974, 2002 Repl.Vol.), § 9-108 of the Courts and Judicial Proceedings Article, and reads, “A person may not be compelled to testify in violation of the attorney-client privilege.” The Maryland courts have adopted Wigmore’s definition of the attorney-client privilege: (1) Where legal advice of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser,(8) except the protection [may] be waived. ⁴⁴ Parler, 359 Md. at 691 , 756 A.2d 526 (internal citations omitted). Although the attorney-client privilege has long been a part of our legal system (see Harrison v. State, 276 Md. 122, 131 , 345 A.2d 830 (1975)(tracing the history of the privilege back as far as the reign of Elizabeth I (1558-1603))), it is not an “inviolable seal upon the attorney’s lips.” Parler, 359 Md. at 691 , 756 A.2d 526 (internal citation omitted).

The purpose of the privilege is to encourage the free flow of communication between client and attorney without fear of disclosure. Id. at 690 , 756 A.2d 526 . It does, however, “create evidentiary inequities between parties during discovery and the absence of fact and truth at trial.” Id. at 691 , 756 A.2d 526 . Because the privilege withholds valuable information from the fact finder, it is narrowly construed by the courts.

Id. See also United States v. Zolin, 491 U.S. 554, 562 , 109 S.Ct. 2619 , 105 L.Ed.2d 469 (1989); Cutchin v. State, 143 Md.App. 81, 90 , 792 A.2d 359 (2002); E.I. du Pont de Nemours & Co. v. Forma-Pack Inc., 351 Md. 396, 415 , 718 A.2d 1129 (1998). The privilege is not absolute. “It does not restrict disclosure of every aspect of what occurs between the attorney and the client.” In re Criminal Investigation No. 1/242Q, 326 Md. at 11, 602 A.2d 1220 . For instance, it does not protect communication made in furtherance of future crimes. 13 It is the seeking of advice in furtherance of a future wrongful act that implicates the crime/fraud exception.

See Clark v. United States, 289 U.S. 1 , 53 S.Ct. 465 , 77 L.Ed. 993 (1933);In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir.l994)(“The crime fraud exception to the attorney-client privilege provides ⁴⁵ that a client’s communications with an attorney wall not be privileged if made for the purpose of committing or furthering a crime or fraud.”)(quoting In re Grand Jury Subpoena, 884 F.2d 124, 127 (4th Cir.1989)); Carter v. Maryland, 149 Md. App. 509, 520 , 817 A.2d 277 (2003)(The attorney-client privilege does not apply to a request by a client to his attorney to present perjured testimony.) (Citing Stale v. Lloyd, 48 Md. App. 535, 546 , 429 A.2d 244 (1981).) 14 Tn 1933 the Supreme Court of the United States, in an opinion by Justice Cardozo, eloquently stated the nature of the crime/fraud exception: There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told....

To drive the privilege away, there must be “something to give color to the charge;” there must be “prima facie evidence that it has some foundation in fact.” When that evidence is supplied, the seal of secrecy is broken.... A privilege surviving until the relation is abused and vanishing when abuse is shown to the satisfaction of the judge has been found to be a workable technique for the protection of the client and attorney. Clark v. United States, 289 U.S. 1, 15-16 , 53 S.Ct. 465 , 77 L.Ed. 993 (1933)(internal citations omitted). Having identified the proper issue before us, we turn now to the testimony presented at appellant’s trial by her former counsel. ⁴⁶ The record indicates that on June 28, 2002, the trial court held a hearing on a motion by appellant to exclude the testimony of Mr. Friedman.

Under order of the court, Mr. Friedman testified that on September 4, 2001, the morning of trial in the custody dispute, he disclosed to Judge Scrivener of the Family Court in Montgomery County that during his representation of appellant she had made statements that he believed were credible and fell within the crime exception to Rule 1.6. Although the court was unaware of the exact statements, it held that, based on Mr. Friedman’s background, experience, and almost two-year relationship with appellant, Mr. Friedman acted in accordance with the requirements of Rule 1.6 for disclosure of confidential information. Although the proper inquiry was whether the information to be disclosed fell within an exception to the attorney-client privilege rather than the crime exception to the ethical rule, the outcome in this case is the same. The information was within the crime exception to the attorney-client privilege and thus admissible.

At trial, still under order of the court, Mr. Friedman testified to the following occurrences: On Friday, August 31, 2001, he arrived at his office to find appellant in “an absolute rage.” The purpose of the meeting was to go over appellant’s testimony for the custody trial taking place on the following Tuesday. Friedman testified that appellant said “a lot of things that concerned [him]” during the course of the day. Specifically, there came a time when “she stopped being in a rage, got very quiet, very thoughtful, and tilted her head a little, and her eyes rolled up, and spoke in a voice that was different from her normal voice.” She then said “You know, I don’t have to kill both children. I only need to kill Lars because I can save Herbie, and then Arlen will go to jail and get what he deserves because he is a criminal, and I can at least save Herbie.” Friedman continued by stating that appellant had told him, his associate Beth Rogers, and his secretary on different occasions when she ⁴⁷ would get upset and despondent that, “they are being tortured.

I am going to kill them[,]” referring to her children. When asked if appellant and Landry had ever discussed killing Slobodow in front of him, Friedman testified that they had on two occasions. Specifically: FRIEDMAN: I was reading a report about something, and [Elsa] was talking to Margie about shooting him and framing Arlen, and I will have to have an alibi—you know, if— you know, should I do it, or how should we do it? Should we hire someone, and she said, “No. No. Ruthann said always do it yourself because when you try and hire somebody you get caught.” I mean, that is what happened to Ruthann, she hired a cop. 15 When asked who said that they should frame Arlen, Mr. Friedman replied: FRIEDMAN: It was a discussion.

THE STATE: Back and forth? FRIEDMAN: Correct, that we—that if they—if—if Elsa killed—if Elsa or Margery killed Lars, Arlen would be blamed, and then he would go to jail. They talked about planting evidence in his house. They—■ THE STATE: What kind of evidence?

FRIEDMAN: Pornography. They—they were convinced that—Elsa was convinced that Arlen was taking pornographic pictures of the kids, and the kids were saying things to get.... If the kids were saying what she said they were saying, that is pretty serious, and she thought that he was using his video business to take pornographic pictures of the kids. So they would sit in my office, and one time they said they were going through the trash—they were going into his backyard, and they also had Margery going through his ⁴⁸ garbage, and I said “You can’t do that.

That is illegal. I can’t hear that kind of stuff,” and they were bringing me into this relationship, and it is why I had to bar Margery from coming in the office. I—I couldn’t be in that position. THE STATE: Did this conversation occur on more than one occasion?

FRIEDMAN: Yeah. I can recall two distinct conversations. I can see them sitting in front of my desk in their—each in a chair. 16 Applying the standard enunciated many years ago by the Supreme Court, to wit, a requirement that there be “something to give color to the charge” and “prima facie evidence that it has some foundation in fact,” we are satisfied that the testimony of Mr. Friedman falls squarely within the crime-fraud exception. Appellant argues in her brief that the State failed to meet its burden in establishing the crime-fraud exception.

Appellant states “Mr. Friedman did not testify to any facts that would reasonably indicated [sic.] that statements he heard from Ms. Newman caused him to act ‘to the extent’ to ‘prevent’ Ms. Newman from causing harm to anyone.” This argument, however, while applicable to a challenge to disclosure under Rule 1.6, is not relevant to a challenge to attorney-client privilege. As discussed above, to defeat the attorney-client privilege there is no requirement that the information be disclosed ⁴⁹ “to the extent” necessary to “prevent” a crime. Rather, it is the nature of the statement itself, language contemplating a future crime or fraud that destroys the protection embodied in the privilege. To defeat the privilege, the State was required to supply evidence sufficient to “give color to the charge [that the statements contemplated future criminal or fraudulent acts]” and to establish “prima facie evidence that it has some foundation in fact.” When this burden was met the seal of secrecy arising from the attorney-client privilege was broken.

Clark, 289 U.S. at 15 , 53 S.Ct. 465 . Mr. Friedman testified to statements made by appellant that clearly showed an intent to commit future crimes, to wit, the murder of her child, the murder of her ex-husband, and the planting of child pornography in her ex-husband’s home. Based on Mr. Friedman’s two-year relationship with appellant and his obligations as an officer of the court, there was sufficient evidence to believe that the statements had a foundation in fact. We, therefore, hold that the State satisfied its burden and the trial court did not err in allowing the testimony of Mi'.

Friedman.

III

Voir Dire Appellant’s third ground for appeal is that the trial court erred in denying appellant’s requested voir dire questions concerning potential bias of the venire. Appellant wanted the court to ask the following questions: Has any member of the jury been accused or charged with child abuse, physical abuse, or domestic violence? Is any member of the jury a member of groups advocating father’s rights in divorce and custody hearings? As a preliminary matter, appellee raises the issue of whether appellant properly preserved the voir dire issue for review by this Court.

Appellee argues that appellant failed to make a timely objection at trial when the court refused to ask the requested questions. ⁵⁰ Md. Rules 4-323(c) and (d) govern the method of making objections to rulings or orders, other than evidentiary, by the trial court. They read: 4-323(c): For purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time of the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. The grounds for the objection need not be stated unless these rules expressly provide otherwise or the court so directs. 4—323(d): A formal exception to a ruling or order of the court is not necessary. Applying Rules 4-323(c) and (d) to the facts in this case, we find that the objection was properly preserved.

The record reflects that appellant made two requests of the trial court to ask the questions listed above, first in writing and second at the close of the questioning section of voir dire. The discussion of the matter consisted of the following: THE COURT: Is there any other request that any of you have concerning jurors that— DEFENSE ATTORNEY H: Can I take a look? 17 THE COURT: Yes. DEFENSE ATTORNEY H: We did ask you to give the two questions (inaudible). DEFENSE ATTORNEY M: We did ask you in our written voir dire to ask question [sic.] does any member of the jury panel a member of any (inaudible) a group that would advocate for the rights of (inaudible).

Also ask if you do, a question has anyone in the jury panel been accused, charged, tried, convicted in a criminal or civil court in any case of child abuse? Again, ask you that— ⁵¹ DEFENSE ATTORNEY H: At any (inaudible). THE COURT: Hold on just a second. I think the questions I have asked have covered those.

I am not going to give any additional questions. We find that appellant’s counsel made known to the court the action that they wished it to take. Furthermore, the rule does not require the objection to be stated with particularity or specific language. We hold, therefore, that the objection was properly preserved.

We turn now to the question presented, whether the trial court abused its discretion in failing to ask the venire the requested voir dire questions. The trial court asked the venire a series of questions and had them stand when their answer was yes. The court then had each person who had answered a question in the affirmative approach the bench one at a time. The judge then repeated the question that the potential juror had answered affirmatively, inquired about the basis of their answer, and asked if the reason for their answer would impair their ability to be fair and impartial in this case.

As the Court of Appeals stated in State v. Thomas, 369 Md. 202, 206 , 798 A.2d 566 (2002), the principles governing the conduct and scope of voir dire are well-known and well-settled in Maryland. Maryland employs a significantly limited voir dire practice, Dingle v. State, 361 Md. 1, 32 , 759 A.2d 819 (2000), with two underlying principles to guide the trial courts of the State. First, “the scope of voir dire and the form of the questions propounded rest firmly within the discretion of the trial judge.” Id. (quoting Perry v. State, 344 Md. 204, 218 , 686 A.2d 274 (1996)(internal citations omitted)).

And second, “the sole purpose for the inquiry is to establish cause for disqualification.” Id. at 33, 759 A.2d 819 (quoting Burch v. State, 346 Md. 253, 293 , 696 A.2d 443 (1997)). The disqualification inquiry focuses on two grounds: (1) an examination to determine whether prospective jurors meet the minimum statutory qualifications for jury service, ⁵² see Maryland Code (1974, 1989 Repl.Vol., 1992 Cum. Sup.), Courts & Judicial Proceedings Article, § 8-207; or (2) “ ‘an examination of a juror ... conducted strictly within the right to discover the state of mind of the juror in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.’ ” Davis v. State, 333 Md. 27, 35-36 , 633 A.2d 867 (1993)(quoting Bedford v. State, 317 Md. 659, 671 , 566 A.2d 111 (1989)(inter-nal citation omitted)). In Boyd v. State, 341 Md. 431, 436 , 671 A.2d 33 (1996), the Court of Appeals clarified the scope of voir dire further by saying that the right to an impartial jury is the right to have questions asked that “concern a specific cause for disqualification.” Furthermore, “the questions should focus on issues particular to the defendant’s case so that biases directly related to the crime, the witnesses, or the defendant may be uncovered.” Thomas, 369 Md. at 208 , 798 A.2d 566 .

In Dingle , the Court wrote: If there is any likelihood that some prejudices in the jurors’ mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case. Dingle, 361 Md. at 11 , 759 A.2d 819 (quoting Bedford, 317 Md. at 671 , 566 A.2d 111 ). Applying these principles to the case at bar, we hold that the trial court did not abuse its discretion in refusing to ask the requested voir dire questions.

The questions asked by the trial court were sufficient to identify potential bias related to child abuse or custody as they relate to appellant’s prosecution for conspiracy to commit murder. 18 ⁵³ At the beginning of the voir dire process, the trial court informed the venire of the basic facts of the case, including the fact that the State relied on appellant’s failed attempts to gain custody of her children as the motive for the conspiracy. The court then asked a series of questions designed to draw out possible bias of the venire, including: Does any member of the prospective jury panel feel such sympathy for persons in the defendant’s circumstances that you would be biased in the defendant’s favor. Likewise, does anyone harbor feelings that would bias you in favor of the prosecution? 19 This question, in fact, did draw out potential bias relating to appellant’s concerns. In response to the question, two members of the venire informed the court that they felt they could not be objective; one, because of a sister’s drawn out custody battle and the other because of her relationship with children.

Having thoroughly reviewed the voir dire conducted in this matter and the relevant case law, we find no abuse of discretion. We therefore hold that the trial court did not err in refusing to ask the venire all of appellant’s requested questions. ⁵⁴ IV. Mistrial and Right to Counsel Appellant’s fourth ground for appeal is that the trial court erred in denying her motion for a mistrial upon the State eliciting testimony about appellant’s exercise of her constitutional right to counsel. Our review of the question presented is governed by the abuse of discretion standard.

See Klauen-berg v. State, 355 Md. 528, 555 , 735 A.2d 1061 (1999) (“As this Court has said time and again, the decision whether to grant a motion for a mistrial is within the sound discretion of the trial court.” (internal citations omitted)). Furthermore, “a reviewing court will not reverse the trial court unless the defendant clearly was prejudiced by the trial court’s abuse of discretion.” Hunt v. State, 321 Md. 387, 422 , 583 A.2d 218 (1990). For the following reasons we hold that the trial court did not abuse its discretion. On August 1, 2002, the State called Detective Susan Mercer, the lead investigator in the case to testify.

During the course of direct exam the following colloquy occurred: THE STATE: And did you have any conversation with Ms. Newman? WITNESS: Yes. THE STATE: Okay. Did you advise her of her rights?

WITNESS: Yes, sir. THE STATE: And what rights did you advise her of? WITNESS: That she has the right to remain silent, she had the right to an attorney. At which time she advised that she would like to consult with an attorney.

Actually, she had an attorney waiting in the station lobby for her. Defense counsel made a motion for a mistrial based on the elicitation of testimony concerning appellant’s exercise of her constitutional right to counsel. The court inquired of the State the reason for eliciting the testimony: THE STATE: Well, I agree that it shouldn’t have been elicited, your Honor, but I don’t think under the circumstances that it—having it stopped where it was, I think it can be cured either with an instruction, if they want one, if ⁵⁵ not, we can simply move on to the rest of her testimony. There has been no extensive testimony about it, and I do think that we can simply move on and—and leave it up to them if they want a curative instruction.

THE COURT: All right. I am going to deny the motion for a mistrial. I propose to give an instruction to the jury to disregard testimony by the witness as to the contacts that she had with Ms. Newman after her initial observations of Ms. Newman. DEFENSE COUNSEL H: I think under the rules I have to—I have to protect myself, say that I have to ask you to give such a cautionary instruction, but with all due respect, I would suggest to you there is no cautionary instruction that overcomes the prejudice that the courts have said occurs when this event happens.

So with that, I object, and I appreciate your cautionary instruction. A brief recess was held. When they returned the court made the following observation outside the presence of the jury: THE COURT: I have reviewed the testimony of Detective Mercer that was prepared by cassette tape. Counsel has listened to that testimony in chambers, and I have prepared an instruction to give to the jury at this point which is as follows: You have heard testified that Elsa Newman was accompanied by an attorney when she appeared at the police station on January 10, 2002.

This is not evidence to be considered by you. Ms. Newman is presumed to be innocent of the charges against her. You have heard evidence that Ms. Newman’s ex-husband, Arlen Slobodow was shot on January 7 of 2002. Ms. Newman’s house was searched following the shooting.

She was aware of this on January 10, 2002. It is fully consistent with the presumption of innocence that anyone under these circumstances would appear and consult with an attorney at the police station to protect his or her interests, that is the instruction I propose to give. I would be glad to hear any suggestions or modifications by anyone concerning this, but after listen ⁵⁶ ing to the testimony of Detective Mercer, I do not feel that a mistrial is warranted under the circumstances. The instruction was then given to the jury.

Appellant argues that “the mere mention that a defendant had been advised of his rights is reversible error.” In Dupree v. State, 352 Md. 314 , 722 A.2d 52 (1998), which appellant argues, “the court unanimously found that the mere mention that a defendant had been advised of his rights is reversible error” was decided on an evidentiary basis with the Court intentionally refraining from deciding the constitutional question. The Court, in fact, held that “because the disputed testimony lacked the threshold relevancy necessary for admissibility, the trial court abused its discretion in allowing its presentation to the jury.” In explaining how the Court came to its conclusion, it reviewed a number of cases, including the Court of Special Appeals’ case, Zemo v. State, 101 Md.App. 303 , 646 A.2d 1050 (1994). In Zemo , the Court of Special Appeals wrote: What legitimate relevance to the appellant’s guilt or innocence, we ask initially, did it possibly have that he has been “read ... Miranda? ” If he had given a “Mirandized” statement that the State were offering in evidence, then, to be sure, the State might have to show its compliance with Miranda at the very threshold of admissibility.

Where no statement was being offered and tested for admissibility, on the other hand, the appellant’s silence in response to the Miranda warnings was immaterial. Indeed, the very fact that appellant had even been interviewed was immaterial. Zemo, 101 Md.App. at 315 , 646 A.2d 1050 . The passage carried with it the following caveat: Our mention of the gratuitous reference to the giving of Miranda warnings is only for the purpose of placing in fuller context the subsequent gratuitous reference to the appellant’s silence in response to those warnings.

We are by no means intimating that a gratuitous reference to the ⁵⁷ giving of Miranda warnings