Smith v. State

BATTAGLIA, J. This case presents us with the task of determining whether a witness is deprived of his Sixth Amendment right to effective assistance of counsel when he is held in contempt based, in part, on an unauthorized disclosure of privileged information by his counsel. We hold that the witness in this case, ¹⁹⁰ Jeffrey Smith, received ineffective assistance of counsel when his attorney disclosed the nature of his advice to Smith and his opinion regarding the application of the Fifth Amendment. Smith also seeks review of the trial judge’s assessment of the merits of his Fifth Amendment claim and the procedures used by the trial judge to impose sanctions for the direct criminal contempt. We conclude that the trial judge committed multiple errors with respect to her determination that Smith did not have a valid basis for asserting his Fifth Amendment right against self-incrimination and the procedures that she adhered to when she imposed sanctions for Smith’s contempt.

Background On November 7, 2003, while the Petitioner, Jeffrey Smith, was serving a sentence for several drug violations, an Assistant State’s Attorney in Baltimore City had Smith brought from prison to court to testify as a prosecution witness in a case in the Circuit Court for Baltimore City, State v. Morgan, et al., case number 102235018-21. When Smith was called to the stand, the following colloquy occurred: [THE STATE]: Mr. Smith, do you live in Baltimore City? [SMITH]: Yes. [THE STA.TE]: How long have you lived in Baltimore City? [SMITH]: About thirteen, fourteen years. [THE STATE]: And in what district do you live in? [SMITH]: Eastern. [THE STATE]: Eastern District? [SMITH]: Yes. [THE STATE]: Which part of the Eastern District? [SMITH]: East Side. [THE STATE]: I understand that. Can you tell us the street? [SMITH]: No, I can’t. [THE STATE]: Are you refusing to answer? [SMITH]: Yes. ¹⁹¹ [THE STATE]: Are you familiar with the 27 hundred block of East Monument Street? [SMITH]: Yes. [THE STATE]: Have you been there before? [SMITH]: Yes. [THE STATE]: How often? [SMITH]: Excuse me, I’m not even with this program. I would like to plead the 5th.[ 1 ] I don’t want to talk. [THE COURT]: Mr. Smith, there is no Fifth Amendment— how often have you been to the 27 hundred block of East Monument Street? [SMITH]: If I live there, how many times can I say I been there? [THE COURT]: So, you live in the 27 hundred block of East Monument Street.

Next question. [THE STATE]: What is your date of birth? What’s your date of birth? [SMITH]: I’m exercising my right to remain silent. [THE COURT]: There is no Fifth Amendment privilege to your date of birth, Mr. Smith. [SMITH]: I want to remain silent, period. The trial judge stopped the proceedings and sent the jury to lunch, at which time the following discussion ensued: [DEFENSE COUNSEL]: He’s not charged in this case. The question is, does he have a legitimate Fifth Amendment privilege with regard to this matter? [THE STATE]: No, he does not.

He has never been a suspect or has ever been charged. ¹⁹² [THE COURT]: That’s your view. It’s his rights, not your rights. Unless you give him immunity, which guarantees him he’s not going to be prosecuted— [THE STATE]: I’m in no position to do that. But the State believes he is not implicating himself. [THE COURT]: You may not believe that, but it is his rights.

The trial judge, sua sponte, permitted the prosecutor to meet with Smith to discuss the Fifth Amendment issue. After a lunch break, the Circuit Court reconvened: [THE COURT]: I want to put on the record that over the luncheon hour, the Court contacted the Office of the Public Defender and asked ..., who I understand is in charge today, if he could send counsel over and he graciously agreed ... [Speaking to Counsel for Smith], have you had an opportunity to speak to Mr. Smith? [SMITH’S COUNSEL]: Yes. [THE COURT]: Is Mr. Smith ready to invoke his Fifth Amendment privilege? [SMITH’S COUNSEL]: Yes. Also, prior to speaking with Mr. Smith, I spoke with counsel for the State ... to get a background on what the case was all about and what Mr. Smith’s potential involvement might be regarding his Fifth Amendment privilege and, as far as I can determine, after speaking with [the prosecutor] and speaking with Mr. Smith, I have advised him that I could not find any constitutional basis for his pleading the Fifth Amendment in this case. I also advised him of the potential consequences of his continuing to make that plea and disobey any orders from the Court to testify in spite of his wishes.

(Emphasis added). The trial judge informed Smith that if she determined that he could not properly invoke the Fifth Amendment, he could be imprisoned for contempt. Smith indicated that he under ¹⁹³ stood. The State then proffered the testimony of the lead detective in the underlying action that Smith was not a suspect in the case nor was there any evidence against him in the case.

The trial judge declined to hear the detective’s testimony and engaged in the following discussion: [THE COURT]: [Smith’s counsel’s in a better position than anybody to know that and [Smith’s counsel] advises he does not, in your view, have a Fifth Amendment privilege? [SMITH’S COUNSEL]: That’s correct, based upon everything he told me. [DEFENSE COUNSEL]: [Smith’s counsel] is acting as his counsel? [THE COURT]: Yes. [DEFENSE COUNSEL]: And as a friend of the Court for these purposes? [THE COURT]: Yes. The Court appointed counsel to represent Mr. Smith for this purpose. [DEFENSE COUNSEL]: If he is evaluating him, he should be qualified as an expert in his capacity of an attorney. [THE COURT]: No. (Emphasis added). The State recalled Smith, who continued to refuse to respond although without explicitly invoking the protections of the Fifth Amendment. The trial judge then asked Smith: [THE COURT]: You’re invoking your Fifth Amendment privilege? [SMITH]: Refusing to say anything else. [THE COURT]: Well, I want to be clear because it makes a difference, Mr. Smith.

Are you saying that you believe you have a Fifth Amendment privilege and you are not going to answer on the grounds the answers may tend to incriminate you? [SMITH]: I don’t. I’m just not a witness. I’m not saying anything else. [THE COURT]: All right. ¹⁹⁴ You understand that the Court has examined and heard the testimony and it does not believe that you have the right to not be with the program or invoke your Fifth Amendment, do you understand that? * * * [SMITH]: No, I don’t. [THE COURT]: All right. [SMITH]: I’m not going to say anything. I don’t know anything.

I’m not saying anything. [THE COURT]: I understand that, and I’m telling you that the Court has determined that you have no right to not — to invoke your Fifth Amendment privilege, and I’m ordering you to answer the question. [SMITH]: I refuse to say anything else. [THE COURT]: You under stand that, in light of the fact that I’ve ordered you, that you would be in contempt of Court if you refuse to answer the question? [SMITH]: Yes, ma'am. [THE COURT]: All right. Counsel, approach. Is there something that you want to say, [defense counsel]? Come to the Bench.

The jury can hear everything you say when you stand out there. (Whereupon, the parties approached the Bench and the following proceedings ensued on the record:) [DEFENSE COUNSEL]: Keeping it succinct — and I apologize to the Court — I thought you wanted to make an inquiry whether or not he had a Fifth. [THE COURT]: I did make the inquiry. [DEFENSE COUNSEL]: I thought that was the purpose of having him questioned. That’s it. [THE COURT]: Let me explain to you that he has to invoke the Fifth. [DEFENSE COUNSEL]: I understand that. [THE COURT]: Until this moment, he has not invoked the Fifth Amendment. He said I don’t know. ¹⁹⁵ [DEFENSE COUNSEL]: Then you made the determination that he didn’t have the Fifth. [THE COURT]: Based upon the proffer that the State gave me and on [Smith’s counsel]’s statement, I determined that he did not have a Fifth Amendment privilege.

Is there something that you want to bring to the Court’s attention? [DEFENSE COUNSEL]: Just note an objection. [THE COURT]: Objection to what? [DEFENSE COUNSEL]: That even though the State made a proffer and he had counsel, the State was trying to elicit information whether or not he had a Fifth Amendment right. [THE COURT]: I don’t understand. [DEFENSE COUNSEL]: I’m saying, you made a determination that he did not have a Fifth Amendment right and that was based upon what took place at the Bench. [THE COURT]: I just said it was based upon the proffer from the state and [Smith’s counsel]’s statement that, after consulting with his client, he didn’t believe he had a Fifth Amendment privilege. [DEFENSE COUNSEL]: I have nothing further. [THE COURT]: Let the record reflect that Mr. Smith refuses to answer the questions properly put to him by the State, that his contempt has interrupted the order of the Court by refusing to answer the lawful order of the Court by refusing to answer the lawful order to testify, that Mr. Smith has no Fifth Amendment privilege and, therefore, the Court will find him guilty of contempt beyond a reasonable doubt. Now, Mr. Smith, I’m going to hold sentencing in this matter sub curia. If you change your mind and decide to testify, I will consider that as a factor in sentencing you. Otherwise, at the conclusion of this trial, you’ll be sentenced for contempt of court, you understand? ¹⁹⁶ [Speaking to Counsel for Smith], I will let you know when we get closer to sentencing. [SMITH’S COUNSEL]: Yes. [DEFENSE COUNSEL]: I don’t think the witness stated on the record his answer. [THE COURT]: I didn’t hear. [DEFENSE COUNSEL]: The witness didn’t answer on the record to your question. [THE COURT]: He just nodded.

I don’t know what you are talking about. [DEFENSE COUNSEL]: He just nodded yes. [THE COURT]: Thank you. (Emphasis added). The trial proceeded. On November 12, 2002, two days after the conclusion of the case, 2 the same trial judge conducted a separately docketed hearing and imposed a five-month sentence for direct criminal contempt upon Smith.

Six days after that hearing, the trial judge issued an order, which provided: Having found Jeffrey Smith in direct criminal contempt for failing to testify in the case of State v. Anthony Morgan and Carlos Woods, 102235018-21, it is this 18 day of November 2003, by the Circuit Court for Baltimore City, Part 30 hereby ORDERED that Defendant be sentenced to a period of Five (5) Months to the Division of Corrections to be served consecutively to any sentence Mr. Smith is now serving. Smith thereafter filed his notice of appeal to the Court of Special Appeals. The Court of Special Appeals, in an unreported opinion, determined that the trial judge made an adequate independent determination of the validity of Smith’s invocation of the Fifth Amendment. Moreover, the intermediate appellate court concluded that the trial judge’s deferral of sanctions until a ¹⁹⁷ separate hearing did not change the summary nature of the proceedings.

The Court of Special Appeals declined to reach the issue of whether Smith was denied effective assistance of counsel because it determined that the issue should be presented in a post conviction proceeding. On December 6, 2005, Smith filed a petition for writ of certiorari with this Court and presented the following questions for our consideration: 1. (A) Did the Court of Special Appeals err in refusing to address Petitioner’s claim of ineffective assistance of counsel, where Petitioner had no available post conviction remedy, and where the record contained all of the facts necessary to decide the claim? (B) Whether a witness is deprived of his Sixth Amendment right to effective assistance of counsel where the witness is held in contempt as a result of his attorney’s unauthorized disclosure of privileged and confidential information? 2.

Where a non-immunized witness invoked the Fifth Amendment and refuses to testify, must a trial court independently assess the merits of the Fifth Amendment claim, or may a court rely on nothing more than a prosecutor’s assertion and a public defender’s unauthorized disclosure of conclusory legal analysis protected by the attorney-client privilege to hold a witness in contempt for refusing to testify? 3. Whether Maryland Rule 15-204 applies where a court promptly finds that direct contempt has been committed, but declines to impose sanctions until a separately docketed hearing after the conclusion of the proceeding during which the contempt allegedly was committed? We granted the petition and issued the writ. Smith v. State, 391 Md. 114 , 892 A.2d 477 (2006).

We determine that Smith received ineffective assistance of counsel when his attorney disclosed the nature of his advice to Smith and advised the trial judge as to his opinion regarding the application of the Fifth Amendment. Moreover, we conclude that the trial judge committed multiple errors with respect to her determination ¹⁹⁸ that Smith did not have a valid basis for asserting his Fifth Amendment right against self-incrimination and the procedures that she adhered to when she imposed sanctions for Smith’s contempt. Discussion Smith argues that his criminal contempt conviction should be vacated because he was denied his right to effective assistance of counsel under the Sixth Amendment. As a threshold matter, Smith asserts that, although post-conviction proceedings generally are the preferred mechanism for pursuing a claim of ineffective assistance of counsel, the record was adequately developed below for this Court to address the issue on direct appeal.

According to Smith, there is no dispute that Smith’s counsel was appointed by the trial court to represent him and counsel him concerning his Fifth Amendment rights. Nor, in Smith’s view, is there any dispute that Smith’s counsel disclosed legal advice and opinions that were protected by the attorney-client privilege. Therefore, he concludes that he was denied effective assistance of counsel. Smith also contends that the trial judge in the present case failed to consider all of the relevant circumstances when she concluded that he was not entitled to invoke the protections of the Fifth Amendment.

He further asserts that the trial judge was required to conduct an independent inquiry into whether his assertion of the Fifth Amendment privilege against self-incrimination was valid under the circumstances, which did not occur in the present case. As his final argument, Smith further asserts that the trial judge did not summarily impose sanctions following her determination that he was guilty of direct criminal contempt and that, therefore, his contempt conviction must be vacated because the trial court failed to comply with the applicable Maryland Rules governing contempt proceedings. Conversely, the State asserts that Smith’s ineffective assistance of counsel claim is improperly raised on direct appeal. It contends that such a claim is more appropriately brought in ¹⁹⁹ post conviction proceedings.

The State also argues that the trial court properly found Smith in contempt of court based on his refusal to testify when called as a witness. The State contends that the record below demonstrates that the trial court made a thorough inquiry into whether Smith was entitled to invoke the Fifth Amendment privilege against self-incrimination and that it appropriately relied upon the representations made by the prosecutor and Smith’s appointed counsel in so doing. The State also asserts that Smith’s appointed counsel did not disclose any privileged communications because the trial court appointed him to advise Smith concerning the applicability of the Fifth Amendment to his situation as well as the consequences of refusing to testify where the court has determined that the Fifth Amendment does not apply. Therefore, according to the State, the disclosure of any communications between Smith and his counsel were authorized under the circumstances because he was required to inform the court on the record as to whether Smith was entitled to assert his privilege.

With respect to Smith’s argument that the trial court did not follow the proper procedures when it imposed sanctions for contempt, the State counters that the trial court’s decision to defer the imposition of sanctions until after the conclusion of the shooting trial did not alter the summary nature of the sanctions. Thus, the State argues that the trial judge complied with the applicable Maryland Rules and there is no basis for disturbing her ruling. Ineffective Assistance of Counsel We have repeatedly held that a claim of ineffective assistance of counsel generally should be raised in a post-conviction proceeding. 3 See Austin v. State, 327 Md. 375, 394 , 609 A.2d 728, 737 (1992); Johnson v. State, 292 Md. 405 , 434- ²⁰⁰ 35, 439 A.2d 542, 559 (1982); see also In re Parris W., 363 Md. 717, 726 , 770 A.2d 202, 207 (2001) (observing that post-conviction proceedings have generally been the preferred mechanism for addressing ineffective assistance of counsel claims). The main justification for the rule is that, generally, the trial record does not provide adequate detail upon which the reviewing court could base an assessment regarding whether counsel rendered ineffective assistance because the character of counsel’s representation is not the focus of the proceedings and there is no discussion of counsel’s strategy supporting the conduct in issue.

In re Parris W., 363 Md. at 726 , 770 A.2d at 207 ; Johnson, 292 Md. at 434-35 , 439 A.2d at 559 . In In re Parris W., we noted that the general rule, however, is not “absolute and, where the critical facts are not in dispute and the record is sufficiently developed to permit a fair evaluation of the claim, there is no need for a collateral fact-finding proceeding, and review on direct appeal may be appropriate and desirable.” Id. at 726, 770 A.2d at 207 . See also Harris v. State, 299 Md. 511, 517-18 , 474 A.2d 890, 893 (1984); United States v. Stevens, 149 F.3d 747, 748 (8th Cir.1998); United States v. Ortiz, 146 F.3d 25, 27 (1st Cir.1998); United States v. Gwiazdzinski 141 F.3d 784, 789 (7th Cir.1998); United States v. Toms, 136 F.3d 176, 182 (D.C.Cir.1998); United States v. Lightbourne, 104 F.3d 1172, 1178 (9th Cir.1997); United States v. Fry, 51 F.3d 543, 545 (5th Cir.1995); United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir.1993); United States v. Robinson, 967 F.2d 287, 290 (9th Cir.1992); Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d Cir.1984); United States v. Aulet, 618 F.2d 182, 185-86 (2d Cir.1980); Austin, 327 Md. at 394 , 609 A.2d at 737 ; Johnson, 292 Md. at 435 n. 15, 439 A.2d at 559 n. 15; People v. Tello, 15 Cal.4th 264 , 62 Cal.Rptr.2d 437 , 933 P.2d 1134, 1135-36 (1997). Smith argues that the record in the present case is adequately developed so as to permit the issue of ineffective assistance of counsel to be addressed on direct appeal; whereas the State contends that post-conviction proceedings should be undertaken.

Moreover, the State asserts that counsel’s ²⁰¹ error was not so blatant or egregious that direct review is appropriate. Smith’s claim arises out of disclosures in which his counsel revealed allegedly privileged information to the trial court and upon which the judge repeatedly stated that her determination concerning Smith’s Fifth Amendment rights “was based upon the proffer of the state and [Smith’s counselj’s statement that, after consulting with his client, he didn’t believe he had a Fifth Amendment privilege.” As we noted in Newman v. State, 384 Md. 285 , 863 A.2d 321 (2004), “only the client has [the] power to waive the attorney-client privilege.” Id. at 308 , 863 A.2d at 334 . We have defined waiver as “the intentional relinquishment of a known right.” Harrison v. State, 276 Md. 122, 138 , 345 A.2d 830, 840 (1975), quoting Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461, 1466 (1938). Intrinsic to the definition of “waiver” is the recognition that the client must be informed of both the scope and nature of the right being relinquished as well as the consequences of so doing.

In the present case, as we have determined infra, Smith’s counsel had an inherent conflict of interest between his duties to Smith and his asserted duties to the trial court. As such, Smith’s attorney could not impartially advise him regarding any waiver of the attorney-client privilege because the trial court had an interest in learning counsel’s advice to Smith. Thus, regardless of whether Smith waived his attorney-client privilege either expressly or implicitly, the waiver would be ineffective. Moreover, we can conceive of no circumstances that would require Smith’s counsel to reveal the substance of his advice to the court, as such a disclosure could only inure to his client’s detriment.

Therefore, we conclude that a collateral evidentiary hearing concerning Smith’s counsel’s disclosure would be superfluous. Our refusal to address Smith’s claim on direct appeal would constitute a waste of judicial resources. See In re Parris W., 363 Md. at 727 , 770 A.2d at 207 . Because Smith’s assertion of ineffective assistance of counsel is premised on an alleged violation of his attorney- ²⁰² client privilege, which only arises after the creation of an attorney-client relationship, we must first examine whether a client-lawyer relationship existed at the time that Smith’s counsel advised him regarding his Fifth Amendment rights.

Huester v. Clements, 252 Md. 641, 646 , 250 A.2d 855, 859 (1969) (noting that “[o]nce the relationship of attorney and client was established, a fortiori, the communication was confidential, and inadmissible in evidence.”). We have previously noted that “[w]hat constitutes an attorney-client relationship is a rather elusive concept.” Attorney Grievance Comm’n v. Shaw, 354 Md. 636, 650 , 732 A.2d 876, 883 (1999), quoting Folly Farms I, Inc. v. Trustees, 282 Md. 659, 670 , 387 A.2d 248, 254 (1978). In Attorney Grievance Comm’n v. Brooke, 374 Md. 155 , 821 A.2d 414 (2003), we adopted the following test for determining whether an attorney-client relationship exists: A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and ... (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services ....

Id. at 174 , 821 A.2d at 425 , quoting Restatement (Third) of the Law Governing Lawyers § 14 (2000). We noted, however, that an attorney-client relationship may be formed without an express agreement between the parties. Brooke, 374 Md. at 173 , 821 A.2d at 424 , citing Shaw, 354 Md. at 650-51 , 732 A.2d at 883 . As such, “[tjhe relationship may arise by implication from a client’s reasonable expectation of legal representation and the attorney’s failure to dispel those expectations.” Brooke, 374 Md. at 175 , 821 A.2d at 425 .

In the present case, the parties do not dispute that an attorney-client relationship existed between Smith and his appointed counsel at the time that the attorney advised Smith regarding the validity of his invocation of the Fifth Amendment. After Smith’s initial assertion of his Fifth Amendment ²⁰³ right against self-incrimination, the trial judge contacted the Office of the Public Defender, which appointed counsel for Smith, who immediately upon arriving at the court met with Smith to advise him regarding Smith’s refusal to testify under the Fifth Amendment. During the proceedings, the trial judge reaffirmed appointed counsel’s role as Smith’s counsel in response to an inquiry by one of the defense lawyers. Moreover, Smith consulted with counsel concerning his rights under the Fifth Amendment and his attorney rendered legal advice on that issue.

Therefore, we find that an attorney-client relationship existed when Smith and his counsel conferred about the validity of Smith’s invocation of the Fifth Amendment privilege against self-incrimination. Because we have concluded that an attorney-client relationship existed between Smith and his appointed counsel at the time that the attorney advised Smith regarding his rights under the Fifth Amendment, we must determine whether disclosing such advice constituted a violation of the attorney-client privilege. As we observed in Lanasa v. State, 109 Md. 602 , 71 A. 1058 (1909), “[t]o make the communications privileged, they ... must relate to professional advice and to the subject-matter about which the advice is sought.” Id. at 617, 71 A. at 1064. Moreover, we have stated repeatedly that “[o]nl,y the client has [the] power to waive the attorney-client privilege.” Newman, 384 Md. at 308 , 863 A.2d at 335 , citing Parler & Wobber v. Miles & Stockbridge, P.C., 359 Md. 671, 691 , 756 A.2d 526, 537 (2000).

Although we generally have discussed the attorney-client privilege with respect to the disclosure of confidential communications made by the client to the attorney, see Newman, 384 Md. at 302 , 863 A.2d at 330-31 , there are circumstances in which the disclosure of the attorney’s opinions, impressions, or perceptions relating to the attorney-client relationship will result in the indirect disclosure of the substance of the communications. See Burlington Industries v. Exxon Corporation, 65 F.R.D. 26, 37 (D.Md.1974) (stating that “[t]he privilege further extends to the attorney’s legal advice ²⁰⁴ and opinions which encompass the thoughts and confidences of the client.”); United States v. Kendrick, 381 F.2d 110, 115 (4th Cir.1964) (Sobeloff, C.J.concurring) (“The lawyer’s observations were inextricably intertwined with communications which passed between him and his client----The fact that a lawyer may be in a position to give enlightening testimony is not itself sufficient reason for relaxing the client’s privileges. In many cases the client may have confessed his guilt to the lawyer, who would then be in an excellent position to give effective testimony, but our tradition forbids such disclosure.”); Gunther v. United States, 230 F.2d 222, 223-24 (D.C.Cir.1956) (holding that “[i]f trial counsel in a criminal case could be called by the Government and asked to give an opinion as to the accused’s competency and ability to assist in the defense, he could necessarily also be asked for the factual data upon which he premised is opinion.... Such revelations would be a violation of the attorney-client privilege and would also invade an accused’s right to counsel in the trial of the criminal charge.”); State v. Meeks, 263 Wis.2d 794 , 666 N.W.2d 859, 870 (2003) (“We agree with the jurisdictions that hold that an attorney[’]s opinions, perceptions, and impressions ... are protected by the attorney-client privilege.”); State v. Adams, 277 S.C. 115 , 283 S.E.2d 582, 586 (1981) (stating, “We