Wiener v. State

Rodowsky, J., delivered the opinion of the Court. Appellant, Theodore Scott Wiener (Wiener), was convicted at a court trial of first degree murder and first degree rape in a case removed from the Circuit Court for Anne Arundel County to the Circuit Court for Baltimore County. Consecutive life sentences were imposed. We issued the writ of certiorari prior to consideration of Wiener’s appeal by the Court of Special Appeals.

Wiener claims a violation of the constitutional right to effective representation of counsel because of the activities in the office of Wiener’s defense attorney, the District Public ⁴²⁸ Defender for Anne Arundel County, of an undercover agent engaged by the Office of the Attorney General of Maryland. We shall remand for a rehearing and redetermination of Wiener’s motion raising that issue. Wiener also asserts that certain of his statements to the police were made during a "custodial interrogation” within the meaning of Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966), and that the State failed to inform him that it intended to use certain sex and violence magazines at his trial in violation of Md. Rules 741 and 772. These latter contentions are rejected.

The facts relevant to each of the appellant’s arguments are presented in the discussion of the particular issue. I By letter dated January 31, 1979 the Governor of Maryland, acting pursuant to Maryland Constitution Article V, § 3, authorized and directed the Attorney General to undertake immediately an investigation of allegations involving misuse of state services and personnel by the Public Defender for Anne Arundel County, T. Joseph Touhey, in his private practice of law. The letter further stated that "if criminal charges are brought” as a result of the investigation, the Attorney General was authorized to prosecute in any courts of this state "with the full powers and authority possessed by a State’s Attorney.” We were advised by Wiener’s counsel at oral argument that no prosecution ever came about as a result of this investigation. Mr. Touhey’s private office was located on one floor of a building at 91 Aquahart Road in Glen Burnie and the District Public Defender’s Office was located on another floor of the same building.

In the course of the investigation it was determined to utilize an undercover agent. Subsequent discovery of this operation led to the filing by Wiener of a pretrial motion to dismiss the indictment and for appropriate relief. An evidentiary hearing was had at which Wiener called three witnesses: Nancy Lee Zinn, a secretary in the District Public Defender’s Office; Smedley Clinton, the ⁴²⁹ investigator in that office; and Bruce C. Spizler, an assistant attorney general who instructed the undercover agent and to whom the latter reported. Based on the testimony and exhibits at the evidentiary hearing, the facts may be summarized as follows. 1 In March 1979 there were three paid law student interns in the Anne Arundel County Public Defender’s Office.

As a result of a statewide directive dated March 6, 1979, they were terminated as of March 28,1979 because of the lack of funds. On March 13, 1979 Assistant Attorney General Spizler met for the first time with Steven Vanderbosch, a law student who resided in Annapolis, Anne Arundel County. Vanderbosch agreed to assist in the investigation and was directed to seek employment in Touhey’s private law office. If he were unsuccessful in that attempt, he was to seek employment as a paid law clerk in the Public Defender’s Office and, if unsuccessful in that, then to volunteer as an uncompensated law clerk for the Public Defender.

In any event, Vanderbosch’s duties for the Attorney General’s Office were to observe the day-to-day activities of Touhey’s private office, including particularly the use of the xerox machine, postal meter and telephone lines, and any activities of a secretary, who was employed by the Office of the Public Defender, regarding Touhey’s private practice of law. On March 26 Spizler learned that Vanderbosch was to start work, although it was not clear at that time whether this would be in the private law office or in the Public Defender’s Office. On March 27, 1979 Vanderbosch started work, on a schedule of Tuesdays and Thursdays only, as a volunteer law clerk in the Public Defender’s Office. By letter dated March 28, 1979 Spizler furnished Vanderbosch with directives prepared by the investigations unit of the Attorney General’s Office regarding the "minimization of any ⁴³⁰ intrusions into the attorney/client privilege.” Vanderbosch was told that "[i]f at all possible, you may not and should not’ read correspondence to or from a client, participate in any conferences or telephone conversations with clients or read any memoranda prepared by Touhey in the course of representing his "private” clients.

(Emphasis in original.) The letter concluded by stating that "[i]f there should come a time when it is necessary to choose between observing privileged material and revealing your 'cover,’ you are to contact me immediately for guidance.” The victim, Robin Lee Crawford, was murdered in the early afternoon of March 28, 1979. A warrant for appellant Wiener’s arrest for that murder was obtained early in the morning of April 11, 1979. On instructions from Touhey, investigator Clinton interviewed Wiener at the Anne Arundel County Detention Center on April 12, 1979 and obtained a five-page written statement. On Tuesday, April 17, Vanderbosch was sitting in the reception area of the Public Defender’s suite.

Tuesdays were the civil assignment day in the District. Court of Maryland sitting in Glen Burnie and Vanderbosch had no clients to interview. Clinton asked Vanderbosch to step into Clinton’s office to discuss an unspecified matter. Clinton showed Vanderbosch the Wiener statement, which Vanderbosch read.

There then ensued a conversation of some 10 to 15 minutes duration, concerning things which would probably be done in defense of the case and procedures which would probably be followed. Clinton later told Touhey everything which Vanderbosch had discussed with Clinton. There is no evidence of any other contact by Vanderbosch with the Wiener case. Spizler, who was called by Wiener’s counsel at the hearing on the motion, testified under cross-examination by the State that Vanderbosch had no duties, functions or responsibilities for the Attorney General’s Office which were involved with the function of the Public Defender’s Office; that Vanderbosch was not asked to report back in any way concerning any activities of the Public Defender’s Office ⁴³¹ involving their clients and the criminal cases that they were involved in, and that it was not until April 30 that Spizler first learned of the allegations involving the Wiener motion and, indeed, of the Wiener case.

Spizler testified that at no time did Vanderbosch, either in written reports or orally, discuss anything regarding the Wiener case and that Vanderbosch has never "divulged, hinted, [or] in any way informed [Spizler] of any information that [Vanderbosch] may have obtained or elicited regarding the Wiener case while he was an employee of the Office of the Public Defender.” The trial court denied Wiener’s motion. In an oral opinion from the bench it concluded that "[t]here is absolutely nothing before the Court that there was any compromise of this information.” It is clear that the statement which Wiener gave to investigator Clinton was a communication between Wiener and his counsel. People v. Knippenberg, 66 Ill. 2d 276 , 6 Ill. Dec. 46 , 362 N.E.2d 681 (1977).

Whether the State’s intrusion, through Vanderbosch, into the relationship between Wiener and his attorney results in dismissal of the indictment, as Wiener requests, is controlled by principles set forth in recent decisions of the Supreme Court. Weatherford v. Bursey, 429 U.S. 545 , 97 S. Ct. 837 , 51 L. Ed. 2d 30 (1977) was a civil action under 42 U.S.C. § 1983 against Weatherford, a state undercover agent. Bursey, Weatherford and others had vandalized Selective Service offices. Bursey retained counsel for himself.

Weatherford participated in meetings concerning defense strategy between Bursey and his counsel, at their invitation. The district court found that Weatherford did not disclose his role in order to preserve his cover but that Weatherford did not pass on to his superiors in the law enforcement agency or to the prosecuting attorney any information having to do with the criminal action pending against Bursey. At the criminal trial Weatherford testified as to his undercover activities and gave an eyewitness account of the vandalism. Bursey was convicted.

In the § 1983 action the district court found against Bursey but the Fourth Circuit reversed. That court ⁴³² held that whenever the prosecution knowingly arranged or permitted an intrusion into the attorney/client relationship it sufficiently endangered the right to counsel to require reversal and a new trial. Under this approach it was immaterial that the agent had not informed other officials about the content of the meetings between the attorney and his client. This per se rule was rejected by the Supreme Court.

It recognized the argument that a dutiful agent would surely communicate to the prosecutors defense plans and strategies but noted that the argument foundered on the express findings by the trial court that Weatherford had communicated nothing about the meetings. The Supreme Court pointed out that the case did not present a situation where the state’s purpose was to learn what it could about legal defense plans. It reasoned that the per se rule would require the informant to refuse to participate in attorney-client meetings, even though invited, and thereby for all practical purposes unmask himself, although the Court had previously recognized the unfortunate necessity of undercover work in law enforcement. The Court concluded by holding: [Ujnless Weatherford communicated the substance of the [attorney-client] conversations and thereby created at least a realistic possibility of injury to Bursey or benefit to the State, there can be no Sixth Amendment violation ....

There being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford, there was no violation of the Sixth Amendment.... [ 429 U.S. at 558 , 97 S. Ct. at 845 , 51 L. Ed. 2d at 41 .] In the present case Wiener predicated his argument on a distinction of Weatherford which was made by the Third Circuit in United States v. Morrison, 602 F.2d 529 (1979). There the defendant was awaiting trial on distribution of heroin charges, as to which she had retained private counsel. Agents of the Drug Enforcement Agency attempted to obtain her cooperation in a related investigation without the knowledge or permission of her counsel. The agents ⁴³³ disparaged her counsel aud suggested she could be better represented by the public defender.

At no time did the defendant incriminate herself or supply any information pertinent to her case. The Third Circuit reversed the conviction and dismissed the indictment for violation of the sixth amendment. Weatherford was said to apply only when there was neither prejudice to the defendant’s case nor any wrongfully motivated intrusion into the attorney-client relationship. Where, however, there was a deliberate attempt to interfere with that relationship, the Third Circuit applied a test which considered the purpose of the interference (Was it wrongfully motivated?), the propriety of the interference (Was it inadequately justified?) and the effect of the interference on the relationship.

After argument of Wiener’s appeal, the Supreme Court reversed and remanded this Third Circuit decision. United States v. Morrison, 449 U.S. 361 , 101 S. Ct. 665 , 66 L. Ed. 2d 564 (1981). We set forth the heart of the rationale. Our approach has thus been to identify and then neutralize the taint by tailoring suitable relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial.

The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition of the defendant’s right to counsel and to a fair trial. More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate. This has been the result reached where a Fifth Amendment violation has occurred, and we have not suggested that searches and seizures contrary to the Fourth ⁴³⁴ Amendment warrant dismissal of the indictment.

The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression. Here, respondent has demonstrated no prejudice of any kind, either transitory or permanent, to the ability of her counsel to provide adequate representation in these criminal proceedings. There is no effect of a constitutional dimension which needs to be purged to make certain that respondent has been effectively represented and not unfairly convicted. The Sixth Amendment violation, if any, accordingly provides no justification for interfering with the criminal proceedings against respondent Morrison, much less the drastic relief granted by the Court of Appeals. [Id. at 101 S. Ct. at 668-69 , 66 L. Ed. 2d at 568-69 (footnotes omitted).] In the instant appeal the relief which Wiener seeks is dismissal of the indictment.

If demonstrable prejudice, or the substantial threat thereof, is absent, dismissal is inappropriate even if the violation was deliberate. Indeed, absent at least a realistic possibility of injury to the accused or benefit to the State, there can be no sixth amendment violation. It is also clear that the ultimate risk of non-persuasion as to presence of prejudice is on the accused, as the moving party on the motion to dismiss. However, as in the proof of any other fact, direct evidence of prejudice is not required; Once an agent of the State has surreptitiously invaded the relationship between an accused and his attorney, the accused is not limited to proving a sixth amendment violation by extracting from the undercover agent, his law enforcement principals or the prosecutors, admissions that communications between the accused and his attorney have been passed on by the informant.

Depending upon the facts directly established by the evidence, prejudice may properly be inferred. Weatherford acknowledges this possibility. After reviewing the absence from that case of elements involving the use by the prosecution of conversátions be ⁴³⁵ tween the accused and his counsel which were overheard by the undercover agent, or even knowledge by the prosecution of the details of those conversations about trial preparations, the Supreme Court said: Nevertheless, it might be argued that Weatherford, a dutiful agent, surely communicated to the prosecutors Bursey’s defense plans and strategy and his attorney’s efforts to prepare for trial, all of which was inherently detrimental to Bursey, unfairly advantaged the prosecution, and threatened to subvert the adversary system of criminal justice. [ 429 U.S. at 555-56 , 97 S. Ct. at 844 , 51 L. Ed. 2d at 40 .] Because the trial court in Weatherford had found that there was no communication by the undercover agent of confidential information, that argument, which is based on inference, foundered at the Supreme Court level. At the same time, the Supreme Court rejected, as cutting much too broadly, a legal rule of per se sixth amendment violation based on intrusion alone so that the rule would operate in the face of a fact finding that there had been no communication.

The Supreme Court has not been called upon to draw a line between its rejection of a rule of automatic violation and a sixth amendment violation established by inference from the direct evidence. The gray area involves the quantum of proof beyond the intrusion itself which is sufficient to establish a violation which is to be remedied in some way. In this case, Wiener demonstrated that Vanderbosch was engaged by the investigative section of the Attorney General’s Office. The Attorney General is the legal advisor to the State’s Attorneys and is counsel for the prosecution in criminal appeals.

In the Touhey investigation the Attorney General was also empowered, in essence, to act as a State’s Attorney. Here, where Wiener’s right to a fair trial is implicated and the integrity of Wiener’s defense by the Public Defender system is put in question, we do not see so great a distinction between the Attorney General and the State’s ⁴³⁶ Attorney • for Anne Arundel County as to insulate Vanderbosch from being an agent for the State in its general function as prosecutor. Wiener also proved that Vanderbosch, while masquerading as a member of the staff of Wiener’s attorney, became privy to one of the most confidential of the communications between an accused and his attorney, the statement of the accused concerning the charges against him. Whether Vanderbosch disclosed that information would principally, if not exclusively, be known by him, by his superiors in the Attorney General’s Office, and by the prosecutorial team on the Wiener case.

These facts shown by Wiener could give rise to an inference of disclosure by the "dutiful agent.” At that stage of the hearing the burden of persuasion effectively shifted to the State to convince the trier of fact that the information obtained as a result of Vanderbosch’s intrusion was not communicated by Vanderbosch. But Vanderbosch was not called as a witness. No police officer responsible for the murder investigation testified. There was no witness from the State’s Attorney Office.

Spizler, on cross-examination by the State, testified, that there was no communication from Vanderbosch to him concerning the Wiener case. Spizler, of course, could not testify one way or the other as to whether Vanderbosch communicated with the prosecution team. The record in this case is not sufficiently clear to permit an appellate determination that the trial court made a finding of fact consistent with the foregoing analysis. Its ruling was that "[t]here is absolutely nothing before the Court that there was any compromise of this information.” This ruling is not phrased as a finding that no information obtained from Wiener was in fact communicated by Vanderbosch.

It is a description of the state of the evidence. We are unable to discern whether the trial court was viewing the burden to be at all times on Wiener or whether the trial court recognized that the burden of persuading it that no disclosure had been made had shifted to the State, so that the trial court was articulating a finding, based on all ⁴³⁷ of the evidence and the legitimate inferences therefrom, that there had been no communication. Further, Wiener produced evidence that Vanderbosch, the only law student clerk or intern then on the District Public Defender’s staff, made suggestions to Clinton, a non-lawyer, relating to Wiener’s defense which Clinton relayed to Touhey. This is unlike the undercover agent in Weatherford who sat by invitation in a defense conference, but who merely said he intended to seek a severance of the trial of his own charges.

Here an agent of the State, acting as a member of the defense counsel’s team, affirmatively contributed to preliminary defense analysis. The trial court made no finding on the presence or absence of detriment to Wiener or benefit to the State resulting therefrom. For these reasons, "the purposes of justice will be advanced by permitting further proceedings in the cause .. ..” Md. Rule 871 a. 2 In Gill v. State, 265 Md. 350 , 289 A.2d 575 (1972) we addressed the use of Rule 1071 a, the companion of Rule 871 a, to effect a limited remand in a criminal case. The Court of Special Appeals had remanded a non-jury case for a redetermination of the voluntariness of a confession.

We assumed that Rule 1071 a could be invoked in criminal causes and commented that "it may be suitable to correct procedures subsidiary to the criminal trial . ...” But we held that a restricted remand "can never be utilized to rectify prejudicial errors committed during the trial itself’ and that the "admissibility of a confession is always an ⁴³⁸ integral part of a trial.” Id. at 357, 289 A.2d at 579 . Here, the hearing to determine the facts underlying Wiener’s motion claiming denial of the right to the effective assistance of counsel was collateral to the criminal trial itself. Unlike the issue relating to the voluntariness of the confession in Gill , evidence given in support of, or in opposition to, Wiener’s motion to dismiss is not presented again in the course of the trial for consideration with all of the evidence bearing on guilt or innocence. Wiener’s non-jury case presents the type of an issue which meets the criteria suggested in Gill for a limited remand in a criminal case and we hold that Rule 871 a may be applied.

Thus, we shall neither affirm nor reverse the judgment of conviction from which this appeal was taken, but the matter will be remanded for the limited purpose of conducting a new hearing on the issue of the claimed violation of the right to counsel. At . this hearing additional evidence may be presented by Wiener and by the State. This may include evidence directed to demonstrating and negating prejudice arising from Vanderbosch’s receipt of information in Wiener’s statement, from defense suggestions made by Vanderbosch, or otherwise. The trial court should thereafter make specific findings of fact in support of its ruling.

If the trial court concludes on the restricted remand that there has been no prejudice in fact resulting to Wiener 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.” United States v. Morrison, supra, 449 U.S. at 365 , 101 S. Ct. at 668 , 66 L. Ed. 2d at 568 . Even if the trial court should find that Wiener was prejudiced by Vanderbosch’s intrusion, dismissal would appear unwarranted. Full recognition of Wiener’s right to counsel and to a fair trial could be afforded, in that event, by a new trial for which the trial court shall appoint, an "assistant counsel for the State” to handle the prosecution.

Md. Code (1974, 1980 Repl. Vol.), § 2-102 of the Courts and Judicial ⁴³⁹ Proceedings Article. In that event, such a special prosecutor is to be an attorney from private practice who had and has no exposure to any of Wiener’s communications to his counsel. Because Wiener’s other contentions look to a new trial in any event, we now address them.

II A two-day hearing was held on Wiener’s motion to suppress oral and written statements which he had given to the police. The thrust of Wiener’s testimony, which the trial court was not required to believe, was that no Miranda warnings were given prior to his oral incriminating statements. From all of the evidence the trial court could have found the following circumstances leading up to the statements. At about 3:00 p.m. on March 28, 1979 the corpse of Robin Crawford, a 20-year-old female, was found by her female roommate.

The victim had been stabbed to death in the bedroom of her home in northern Anne Arundel County. Inquiries developed that at 2:00 a.m. that date Robin Crawford had left the Holiday Inn in Glen Burnie with four men, David Knight, Dennis Hammond, Nick Greenberg, an owner of Vizzini’s Italian Carry Out, and Wiener, an employee at Vizzini’s. Wiener was 19 years of age and is a high school graduate. The group had gone to Robin Crawford’s home and smoked some marijuana.

The men left in the early morning hours. On the evening of that same day Detective Bonnie Lowe went to Vizzini’s and conducted preliminary field interviews of Wiener and Greenberg. Wiener expressed his willingness to give a written statement at a later time at police headquarters in Millersville. At about 1:30 p.m. on March 29 Wiener received at Vizzini’s by telephone the request from the police to give such a statement but he said he had no transportation because his motorcycle had broken down.

The caller offered to furnish transportation. Shortly thereafter Detective Lowe ⁴⁴⁰ came to the pizza shop and drove Wiener to the Millersville station. Wiener waited in a hallway at the station with three other persons who were to be interviewed in the investigation, at least two of whom