Pratt v. State

Thompson, J., delivered the opinion of the Court. The appellant, Margaret Melton Pratt, was convicted in the Circuit Court for Montgomery County of murder in the second degree and use of a handgun in the commission of a crime of violence. A fifteen year sentence, seven of which were suspended, was imposed on the murder charge along with a concurrent five year sentence for the handgun conviction. The murder scenario which led to this appeal began on October 22, 1976 when appellant removed a .32 caliber automatic pistol from her husband’s business vault. 1 At that time she was emotionally distressed and planned to use the gun to commit suicide.

After removing the weapon appellant went home, stopping only at a local grocery store to purchase some food for the evening meal. When she arrived home, her husband, William Pratt, who had left work early because of illness, was watching television. Appellant prepared the evening meal and after dinner she and her husband spent an uneventful evening watching television before retiring for the night. Appellant could not sleep thinking about her contemplated suicide and the consequences of such an act on her husband because she handled the family finances, and tended to his personal needs which were many because of general ill health.

There was also some question as to the financial position of the business which worried her. At approximately 7:00 the next morning, after a sleepless night, appellant entered her husband’s bedroom, placed a gun against his head, and shot him. After the initial shot was fired Mr. Pratt began to breathe erratically so appellant fired a second shot to end any possible suffering. ⁴⁴⁵ After the shooting, appellant packed an overnight bag and traveled to the farm of friends near Front Royal, Virginia. Her dog was buried on the farm and she spent two or three hours praying at its gravesite.

As the friends were not at home, she spent the night in a nearby motel before returning to her home the next day. When appellant arrived home, she wandered around in her car visiting the neighborhood in which she and her husband formerly lived. Realizing she would eventually be apprehended, she went to the police and informed them of her crime. After the police verified the commission of the murder, appellant was formally arrested and ultimately transported to Springfield Hospital Center for psychiatric evaluation.

During the trial the defense did not contest the accusation that appellant had killed her husband, but contended she was insane at the time of the crime. In support of her contention appellant presented two psychiatrists, Dr. Gerald Polin and Dr. Leon Yochelson. They testified that at the time of the crime appellant was suffering from a mental illness and lacked substantial capacity to conform her conduct to the requirements of the law. In order to counter this testimony the State produced three psychiatrists.

All expressed the opinion that appellant was suffering from a mental disorder at the time of the offense; two of the three psychiatrists felt she was legally responsible for her act. On appeal appellant attacks the validity of her convictions, contending the trial judge committed reversible error in: (1) Admitting the testimony of Dr. Brian Crowley, one of the State’s psychiatrists, who originally examined appellant at the request of defense counsel; (2) Refusing to admit testimony corroborative of the factual basis of the opinions given by the defense psychiatrists, even though the State attacked their basis of knowledge; (8) Refusing to admit a video tape of an interview between appellant and Dr. Polin; ⁴⁴⁶ (4) Admitting a report written by Dr. McClelland stating appellant was criminally responsible for her acts, after he was unable to express an opinion on the question at trial; (5) Unduly restricting cross-examination of a police officer concerning the amount of money appellant had at the time of her arrest; (6) Admitting pictures of the body of the deceased; and (7) Denying her right to argument of counsel regarding a possible recommendation of mercy by the jury. I Dr. Brian Crowley’s Testimony One of the three psychiatrists presented by the State, Dr. Crowley, had originally been retained by the defense. Dr. Crowley testified that although appellant was suffering from a mental disorder at the time of the offense, she did not lack substantial capacity to conform her conduct to the requirements of the law.

Appellant mounts a multifaceted attack on the admission of this testimony arguing it should have been excluded on the grounds of: (1) the attorney-client privilege, (2) the psychiatrist-patient privilege, or (3) the work product doctrine. We conclude admission of the testimony violated the attorney-client privilege so we will not discuss the other arguments in any detail. 2 The attorney-client privilege was defined in Harrison v. State, 276 Md. 122, 135 , 345 A. 2d 830, 838 (1975) as follows: “ ‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as ⁴⁴⁷ 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 be waived.’ ” Quoting 8 J. Wigmore, Evidence § 2292 at 554 (McNaughton rev. 1961). The theory behind the creation of the privilege is that a lawyer can act effectively only when he is fully advised of the facts and the client’s knowledge that a lawyer cannot reveal his secrets promotes full disclosure. Harrison v. State, supra, 276 Md. at 133-134 , 345 A. 2d at 837 ; Trupp v. Wolff, 24 Md. App. 588, 608-609 , 335 A. 2d 171, 183-184, cert. denied, 275 Md. 757 (1975).

The privilege is not confined in scope to communications made solely between an attorney and his client but includes communications made to agents employed by the attorney, such as a stenographer, secretary, clerk, or any employee necessary for effective operation. 8 J. Wigmore, Evidence § 2301 at 583; C. McCormick, Handbook of the Law of Evidence § 91 at 188-189 (2d. ed. E. Cleary 1972). In cases where a question arises concerning a client’s criminal responsibility for an act, a psychiatrist is indispensable for his help in the planning and preparation of the defense as well as his testimony at trial. The attorney could hardly explore the basis of adverse testimony intelligently, without such help.

See United States v. Taylor, 437 P. 2d 371 , 377 n.9 (4th Cir. 1971); United States v. Alvarez, 519 F. 2d 1036, 1046 (3rd Cir. 1975); United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1047-1048 (E.D.N.Y. 1976), aff’d mem. 556 F. 2d 556 (2nd Cir. 1977); People v. Lines, 13 Cal. 3d. 500, 531 P. 2d 793, 800 (1975); United States v. Kovel, 296 F. 2d 918, 921 (2nd. Cir. 1961) (Friendly J.). 3 As the assistance of a psychiatrist is essential where the criminal responsibility of a client is in question, we hold that ⁴⁴⁸ communications made to a psychiatrist for the purpose of seeking legal advice are within the scope of the attorney-client privilege. This position is supported by the overwhelming majority of courts and commentators that have considered the question. 4 The State, not seriously disputing that communications made to a psychiatrist in conjunction with the preparation of an insanity defense should be afforded the protection of the attorney-client privilege, argues appellant waived any claim of privilege by placing her sanity in issue.

Although there can be no question that a client may expressly or impliedly waive the attorney-client privilege, Harrison v. State, supra, 276 Md. at 136-138 , 345 A. 2d at 839 ; Shawmut Mining Co. v. Padgett, 132 Md. 397, 404 , 104 A. 40, 43 (1918), we do not think a waiver occurs when an accused places his sanity in issue. There is no precise formula for determining whether the privilege has been waived in a particular case. In deciding this question various factors such as the client’s intent to waive, fairness, and consistency of conduct must be considered in view of the purpose of the privilege. See Harrison v. State, supra, 276 Md. at 138 , 345 A. 2d at 840 ; 16 Minn.

L. Rev. 818 , 823 (1932). In arguing that fairness dictates that the privilege should be deemed to have been waived the State relies on the rationale of People v. Edney, 39 N.Y.2d 620 , 350 N.E.2d 400 (1976). That court concluded there was no need to protect communications made to a psychiatrist once the issue of the client’s sanity was placed in issue. The court’s reasoning was predicated on several factors.

First, under New York law once an accused pleads insanity he is required to disclose the underlying basis of his affliction to prosecution psy ⁴⁴⁹ chiatrists. 5 Thus, the court reasoned that if an insanity plea is entered the facts in question will be available to the prosecution in any event and, as a result, the waiver rule would not deter a client from communicating with a psychiatrist hired to assist his attorney. Second, the court noted that under the work product doctrine an attorney could consult a psychiatrist without fear of future disclosure as long as the attorney, and not the client, conveyed the necessary facts to the expert. 6 Despite Edney we think the better approach is that the client does not waive the attorney-client privilege by placing sanity in issue. See particularly, United States v. Alvarez, supra at 1046-1047; People v. Lines, supra, 531 P. 2d at 799-802 ; State v. Kociolek, supra, 129 A. 2d at 425-426. Cf., Pouney v. State, 353 So. 2d 640 (Fla.

App. 1977) (accused does not waive privilege by placing sanity in issue unless trier of fact is so deprived of a valuable witness as to undermine public interest in the administration of justice). The waiver rule urged by the State would seriously undermine the purpose of the privilege by impairing effective assistance of counsel in several respects. Even though the work product doctrine serves to protect communications between the attorney and the psychiatrist, as a practical matter the advice of an expert based exclusively on an attorney’s communications will be worth much less than advice given after an examination of the client. In addition, as expert testimony is essential to a defense of insanity, the attorney will eventually have to submit his client for examination before formulating a defense strategy.

In so doing he will be running the risk that the psychiatrist will later be called to testify by the State. As a result the client might be less open and candid in communicating with the psychiatrist. This in turn impairs the value of the psychiatrist’s advice and lessens the effectiveness of counsel. The problem posed was ⁴⁵⁰ convincingly stated by the Court in United States v. Alvarez, supra at 1046-1047. “The issue here is whether a defense counsel in a case involving a potential defense of insanity must run the risk that a psychiatric expert whom he hires to advise him with respect to the defendant’s mental condition may be forced to be an involuntary government witness.

The effect of such a rule would, we think, have the inevitable effect of depriving defendants of the effective assistance of counsel in such cases. A psychiatrist will of necessity make inquiry about the facts surrounding the alleged crime, just as the attorney will. Disclosures made to the attorney cannot be used to furnish proof in the government’s case. Disclosures made to the attorney’s expert should be equally unavailable, at least until he is placed on the witness stand.

The attorney must be free to make an informed judgment with respect to the best course for the defense without the inhibition of creating a potential government witness.” Another reason the psychiatrist’s testimony should be rejected is because his employment by the other side tends to add undue weight to his testimony. In the instant case, the State emphasized this in its closing argument to the jury. This problem, however, could be eliminated by prohibiting evidence concerning the expert’s original employer from being presented to the jury. See, United States ex rel.

Edney v. Smith, supra at 1053. Cf., Mayor of Baltimore v. Zell, 279 Md. 23, 28 , 367 A. 2d 14, 17 (1977) (admission of evidence indicating an expert was originally retained by the other party is within the sound discretion of the trial court). It has been suggested that application of the attorney-client privilege to psychiatrists allows the defense to suppress unfavorable experts while shopping around for an expert that supports its position. See United States ex rel.

Edney v. Smith, supra at 1052. 7 When one considers this possibility it ⁴⁵¹ seems that fairness would dictate that the State be granted access to all psychiatrists employed by the defense, even though it does not intend to use them at trial. A close examination of this argument, however, reveals that the State would not significantly benefit from access to these individuals. The State already has access to the underlying factual basis of the accused’s mental affliction for use by its psychiatrists. See Md. Code, Art. 59, § 25 (b) (1972 Repl.

Vol.). Hence, the actual information disclosed would not be of any real value to the State. As long as there is a sufficient number of experts available, there is no real danger, as a practical matter, of the defense using the cloak of the privilege to remove “unfriendly” experts. 8 II The Refusal to Admit Corroborative Testimony In formulating their opinions, both defense psychiatrists considered the history given by appellant dealing with her concern over Mr. Pratt’s health, his increasing vanity, and the deteriorating finances of the family to be significant. During cross-examination the State asked several questions concerning what attempts the psychiatrists had made to verify the information given by appellant.

The natural implication of these questions was that the history given by appellant might have been falsified and the diagnoses of the psychiatrists would, therefore, be inaccurate. Defense counsel attempted to rehabilitate the testimony of Dr. Polin and Dr. Yochelson by offering testimony to corroborate the factual basis of their opinion. Several witnesses were offered in this regard. 9 Through these witnesses the defense ⁴⁵² attempted to verify that Mr. Pratt was in poor health; he had become increasingly demanding of appellant; the family business was experiencing financial difficulties; and appellant was deeply concerned over these matters. The trial judge ruled that since the psychiatrists had not relied on these witnesses to prepare appellant’s history they could not be used as corroborative witnesses.

The trial judge did, however, admit evidence bearing on appellant’s state of mind within a month of the murder, apparently ruling that it was independently relevant. Once the testimony of a witness has been impeached, a party is generally allowed to introduce corroborative evidence. See Mayor of Baltimore v. Zell, supra, 279 Md. at 27 , 367 A. 2d at 16 ; Gill v. Staylor, 93 Md. 453 , 49 A. 650 (1901). This same rule, with certain exceptions which are not relevant here, applies to the testimony of expert witnesses. 2 E. Conrad, Modern Trial Evidence § 695 at 590 (1956).

Such corroborative evidence is not restricted in form; any evidence corroborative of the testimony may be used. In the case sub judice, the action of the trial judge, in effect, restricted the availability of such evidence to the testimony of appellant. While the admissibility of corroborative evidence is largely within the trial court’s discretion, 2 F. Wharton, Criminal Evidence § 494 at 475 (13th ed. C. Torcía 1972), we think the trial court here was unduly restrictive in ruling as he did under the facts of this case.

Ill Admissibility of the Video Tape The third error claimed by appellant is that the trial judge should not have prohibited defense counsel from using a video tape of