Haworth v. State

840 P.2d 912, 1992 WL 297120

• Court: Wyoming Supreme Court
• Decided: November 19, 1992
• Docket: 90-276
• Status: Published

Opinions

GOLDEN, Justice.

A jury found appellant Steven Haworth guilty of aggravated assault and battery¹ for his use of a pocketknife during a fight with Rod Risk on May 23, 1990, outside a bar near Casper, Wyoming. Haworth had claimed he used the knife in self-defense.

On appeal, Haworth raises one issue:

Whether the prosecution’s deliberate and covert intrusion into appellant’s trial preparations, alerting the prosecution of appellant’s defense strategy, violated appellant’s fifth and sixth amendment rights to a fair trial and effective assistance of counsel, respectively.

We affirm.

FACTS

The fight in which Haworth used the knife occurred on May 23, 1990. A few days later, law enforcement authorities arrested and charged Haworth. Unable to make bail, he remained incarcerated in the county jail through July 23, 1990, when his trial began.

For the weekend period immediately preceding the first day of trial on Monday, Haworth’s defense counsel made arrangements with the county sheriff’s office that enabled defense counsel to spend several hours each weekend day with Haworth in the same courtroom in which the trial was to be held. Haworth and his defense counsel used these weekend sessions to prepare for trial.

Since Haworth was unable to make bail and was in the sheriff’s custody, the sheriff required that one of his deputies remain with Haworth during these trial preparation sessions. According to Haworth’s defense counsel, and this fact is not challenged by the state, defense counsel paid the deputy sheriff’s overtime wage necessitated by this custodial security arrangement. According to defense counsel, he expressly told the deputy sheriff who remained with Haworth during these trial preparation sessions that the deputy sheriff was working for defense counsel and “none of this goes out of this room.”²

During the first day of trial, when the prosecutor was on the last part of his direct examination of the state’s first witness, Rod Risk, the victim, it became apparent to Haworth’s defense counsel that the prosecutor had learned not only about Ha-worth’s weekend trial preparation sessions with defense counsel but also about the substance of some of the conversations between Haworth and defense counsel during those sessions. During the examination of Rod Risk, the prosecutor, contendably setting 'the stage for his later cross-examination of Haworth and his still later closing argument to the jury, pointedly asked Risk whether he had practiced his testimony in the courtroom before testifying that day. The victim-witness answered he had not.

As a result of that questioning, at the start of the second day of trial the defense counsel and the prosecutor met with the trial judge in chambers to discuss defense counsel’s concern that the prosecutor intended to cross-examine Haworth about the weekend trial preparation sessions. During this discussion, the trial judge learned about defense counsel’s weekend trial preparation sessions with Haworth and the prosecutor’s discovery of them. It was clear that the prosecutor had learned about the sessions, including the substance of some of the conversations between defense counsel and Haworth, from the deputy sheriff who had provided custodial security of Haworth during those sessions.

As a result of the in-chambers discussion, the trial judge ruled that the prosecutor could not talk about the defense’s “rehearsals in this courtroom.” The trial then resumed. The issue in question did not surface again until the third day of trial.

On the third day of trial, after the state had rested and all defense witnesses had testified except Haworth, defense counsel and the prosecutor again met with the trial judge in chambers. They again discussed defense counsel’s concern that his work product had been compromised by the deputy sheriff’s having divulged to the prosecutor the substance of some of the conversations between defense counsel and Ha-worth he had overheard during the weekend trial preparation sessions. Specifically, it was evident the prosecutor had learned from the deputy sheriff that defense counsel and the accused had discussed that the accused should, in his trial testimony, describe his use of the knife in the fight with the word “cut” instead of the word “stab.” The prosecutor’s main concern was that Haworth had been impermissibly coached; he wanted to expose this on cross-examination.³

During this in-chambers discussion, the prosecutor disputed the defense counsel’s representation to the trial judge that he had expressly instructed the deputy sheriff at the weekend sessions that confidentiality attached to all that was said during the sessions. The prosecutor, however, failed to present the deputy sheriff, place him under oath, and offer his testimony about what defense counsel had told him.

As a result of this in-chambers discussion, the trial judge ruled that the conversations between the defense counsel and Haworth during the weekend sessions were work product. The trial judge instructed the prosecutor, “You can’t inquire into that area as being quoted from a lawyer to a client.” After further discussion, the trial court said:

I think there are ways that the State is protected in their cross examination to get at what you are getting at. I think in view of the fact that the information of someone telling him, you know, the play on words, whether it is stabbed or cut, resulted from a conveyance of information by the deputy that had to be there. In other words, the defendant has to prepare his case and I suppose that had you called me, I would have said, shackle him and have the deputy step outside. But nobody called me. * * * And what we are after here is a fair trial

That just strikes me as being unfair. Not only that, but it strikes me as being a potential reversible error.

I think you can get at it in cross-examination without referring to the conversations between counsel and the Defendant. That would be my ruling.

The prosecutor then proposed that he would ask Haworth this question on cross-examination: “You have been specifically instructed to use the word ‘cut’ versus ‘stabbed’ ”? The trial judge declared that that question was objectionable. On that point, the in-chambers discussion ended and the trial resumed.

Defense counsel called Haworth to testify on his own behalf. After answering a few preliminary questions about his background and employment disability, Ha-worth answered his own counsel’s questions concerning their previous discussions about the case:

Q. Now, Steve, you and I have discussed this case a great deal?

A. Yes.

Q. Could you give an idea to the Jury what I have told you to tell them 1

A. Just to tell the truth, just state facts as they are, and tell the truth. (Emphasis added).

Following this exchange, defense counsel then conducted direct examination about the facts and circumstances of the fight. In several of his answers to questions about the fight, Haworth used the word “cut” in describing what happened. Thus, after describing how he had been knocked down, how the victim Rod Risk had straddled him and had been swinging his fists and hitting him as he lay on his back pn the ground, Haworth testified, in relevant part:

A. Well, Rod was swinging and I just moved up to either block his blow. I wasn’t going to cut him. • He was coming down to hit me again and the next thing I know, blood is going everywhere * * *.

Q. Did you know at that time whether you had cut Rod?

A. No, no, and I don’t think that he knew that he had been cut either because he didn’t stop.

* * * * * *

Q. Then what happened?

A. Well, like I said, he didn’t stop swinging. He didn’t know that he had been hurt. I didn’t know that I cut him except for I did after that initial cut because blood came all over me, but that didn’t stop him. He kept swinging and kept hitting me. I was just striking out. (Emphasis added).

Following Haworth’s direct examination, the prosecutor conducted his cross-examination. He asked several questions covering how Haworth, during the second day of trial while seated in the courtroom and in response to defense counsel’s request, had practiced opening the pocketknife with one hand in order to be able to demonstrate the maneuver when he testified on direct examination. Next, the prosecutor asked, without drawing defense counsel’s objection, “You have specifically used the word ‘cut’ versus ‘stabbed’ in your testimony today, correct?” Haworth answered, “True.” The prosecutor then moved on and covered other aspects of Haworth’s direct examination testimony concerning the facts and circumstances of the fight.

After Haworth’s testimony, the defense rested, the prosecution had no rebuttal, and the evidence was closed.

On the fourth and final day of trial, in the prosecutor’s closing argument, he reviewed the testimony of the various witnesses. In his review of Haworth’s testimony, the prosecutor said, in relevant part, again without drawing defense counsel’s objection:

He is the only witness that you heard from who had to practice his presentation to you. He told you, his testimony was that [defense counsel] wanted me to practice opening the knife before I actually testified.

You know, he told you that he deliberately in his testimony used the word “cut” versus “stabbed.”

Following the prosecutor’s first phase of closing argument, defense counsel delivered his closing argument. Then, the prosecutor completed the final phase of his closing argument, which contained no further reference to Haworth’s having practiced his presentation or deliberately used the word “cut.”

After the jury deliberated, it found Ha-worth guilty. Haworth filed no post-trial motions. This appeal followed.

DISCUSSION

Haworth asserts the prosecution violated his rights to effective assistance of counsel and a fair trial as guaranteed by the Federal and Wyoming Constitutions. U.S. Const. Amends. V, VI; Wyo. Const. art. 1, §§ 6, 10. He avers this occurred when the government deliberately and surreptitiously invaded the defense camp, learned the nature of the defense strategy which was to use the word “cut” instead of the word “stabbed” to describe Haworth’s self-defense use of the pocketknife, and used that information to discredit Haworth on cross-examination and in closing argument by pointing out that Haworth specifically used the word “cut” instead of “stabbed” in his testimony.

To support his assertion, Haworth refers this court to respectable authority that appropriately describes the nature and scope of the attorney-client relationship in the criminal setting. We agree that “[t]he essence of the sixth amendment right to effective assistance of counsel is, indeed, privacy of communication with counsel. Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 461, 86 L.Ed. 680 (1942); United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir.1973).” United States v. Brugman, 655 F.2d 540, 546 (4th Cir.1981). Like the court in Rosner, “[w]e do not lightly regard so serious a constitutional claim [as government intrusion into an accused’s right privately and freely to consult his counsel] * * *.” Id. at 1224. See also State v. Milligan, 40 Ohio St.3d 341, 533 N.E.2d 724 (Ohio 1988).

We have carefully read the numerous opinions treating the issue of the government’s intrusion into the confidential relationship between the criminally accused and defense counsel. They present a variety of fact situations involving undercover agents, government informants, co-defendants, and law enforcement personnel who have either participated in attorney-client meetings, engaged in wiretapping or electronic eavesdropping, or overheard conversations. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Brugman, 655 F.2d 540; United States v. Irwin, 612 F.2d 1182 (9th Cir.1980); United States v. Levy, 577 F.2d 200 (3rd Cir.1978); Caldwell v. United States, 205 F.2d 879 (D.C.Cir.1953); Coplon v. United States, 191 F.2d 749 (D.C.Cir.1951); Blackmon v. State, 653 P.2d 669 (Alaska Ct.App.1982); Milligan, 533 N.E.2d 724. See also Annotation, Propriety of Governmental Eavesdropping on Communications Between Accused and His Attorney, 44 A.L.R.4th 841 (1986). Although these cases are factually distinguishable from our case at hand, those factual distinctions do not overshadow the important factors which all have in common and are usually considered “[i]n determining whether there has been an invasion such as to be violative of the Sixth Amendment right to effective assistance of counsel * * Brugman, 655 F.2d at 546.

The four factors are:

1. Whether the government purposely caused the informant’s presence in order to obtain confidential information or whether the informant’s presence was a result of an innocent occurrence;

2. Whether as a result of the informant’s intrusion the government obtained, directly or indirectly, any evidence which the prosecutor then used at trial;

3. Whether as a result of the informant’s intrusion the government obtained any other information which the prosecutor then used in any other manner to the substantial detriment of the accused; and

4. Whether the government learned the details about the trial preparation.

Weatherford, 429 U.S. at 554, 97 S.Ct. at 843, 51 L.Ed.2d at 39. See also, Brugman, 655 F.2d at 546.

Considering the opinions in the above and foregoing cases and the nature of the derived factors,

it is apparent that mere government intrusion into the attorney-client relationship, although not condoned by the court, is not of itself violative of the Sixth Amendment right to counsel. Rather, the right is only violated when the intrusion substantially prejudices the defendant. Prejudice can manifest itself in several ways. It results when evidence gained through the interference is used against the defendant at trial. It also can result from the prosecution’s use of confidential information pertaining to the defense plans and strategy, from government influence which destroys the defendant’s confidence in his attorney, and from other actions designed to give the prosecution an unfair advantage at trial.

Irwin, 612 F.2d at 1186-87.

Having identified the element of substantial prejudice to the accused as being the focus of our overriding concern in this area of the law, we also agree with the authorities that “[t]o determine the precise degree of prejudice sustained by [an accused] as a result of the [government’s intrusion] is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser, 315 U.S. at 75-76, 62 S.Ct. at 467, 86 L.Ed. at 702.

Applying the factors identified above to our case at hand and keeping in mind that our overriding concern is whether the accused has been substantially prejudiced, we have determined that, under the facts of this case, the prosecution’s intrusion into the attorney-client relationship of Haworth and his defense counsel did not substantially prejudice Haworth’s defense. First, the deputy sheriff’s presence at the weekend trial preparation sessions with Haworth and defense counsel was not purposely caused by the prosecution in order to obtain privileged information. Second, the only information which the prosecution obtained and used in any manner was that Haworth would consciously employ the word “cut” instead of the word “stabbed” to describe his use of the pocketknife during the fight. The trial judge, however, severely restricted the extent to which the prosecutor could use that information for the purpose of discrediting Haworth’s testimony. The prosecutor obeyed the trial court’s ruling by not inquiring into that matter “as being quoted from a lawyer to a client.” Finally, the only details about trial preparation which the prosecution learned were those relating to the choice of words just mentioned. Although the prosecutor asked one question of Haworth about his choice of the word “cut,” and a day later made passing reference about that word choice in closing argument to the jury, use of the word “cut” was de minimis considering the nature and amount of the other evidence in the case describing the fight.

In our consideration of whether Haworth was substantially prejudiced, we have also taken into account several factors relating to Haworth’s testifying in his own behalf. He voluntarily took the stand. On direct examination, his own counsel opened the door to a potentially much broader and more damaging cross-examination by the prosecutor than actually occurred. His own counsel raised the very subject of their confidential, privileged conversations and asked Haworth to tell the jury what defense counsel told him to say. In answer to that dangerous question, Haworth replied he had only been told to tell the truth. Fortunately for Haworth, the prosecutor did not seize the opportunity and bore in on cross-examination to have Haworth testify fully and completely about the other matter defense counsel told him to say, namely, use the word “cut” instead of the word “stabbed.” A consistent line of Wyoming decisions informs us that

a defendant who has voluntarily testified may be cross-examined the same as any other witness and the latitude of cross-examination is largely within the discretion of the court. Porter v. State, Wyo., 440 P.2d 249, 250 (1968). Cross-examination of a witness is not, however, without its limitations. When cross-examination is not confined to matters testified to in the examination in chief, it must be limited to those things which affect the credibility of the witness. See, Johnson v. State, 8 Wyo. 494, 508, 58 P. 761, 764 (1899).

Roby v. State, 587 P.2d 641, 644 (Wyo.1978). And, in a later case we said:

The credibility of a defendant in a criminal case may be tested and his testimony impeached like that of any other witness. When he testifies in his own behalf he has no right to set forth to the jury facts favorable to him without laying himself open to cross-examination upon those facts. Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).

MacLaird v. State, 718 P.2d 41, 47 (Wyo.1986).

With these principles in mind, we recall that Haworth testified in his own behalf and, as part of his effort to establish self-defense, chose the word “cut” to describe his use of the knife. That testimony on direct examination was properly subject to cross-examination the same as any other witness’ direct testimony would be. Here, the prosecutor respected the trial judge’s in-chambers rulings in his cross-examination on that specific piece of testimony, making no reference to Haworth’s private conversations with his defense counsel during their trial preparation sessions. It is, perhaps, an interesting question whether those judicial rulings continued to apply in light of defense counsel’s subsequent direct examination of Haworth in which he opened the door to the subject of his conversations with his client.⁴ We need not comment further on that point.

After carefully examining the record and the authorities, we are convinced that the prosecution’s one cross-examination question relating to Haworth’s choice of words and one closing argument remark to the jury about that matter properly related to matters to which Haworth testified on direct examination. After reviewing the evidence, we do not find that the nature of the question, the answer to it, and the remark to the jury could have had any influence on the jury to materially affect its result in reaching the verdict. Consequently, we hold that the prosecution’s intrusion into the attorney-client relationship of Haworth and his defense counsel, under the facts of this case, did not substantially prejudice Haworth’s defense.

Affirmed.

1 . Wyo.Stat. § 6-2-502 (1988):

(a) A person is guilty of aggravated assault and battery if he:

(i) Causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

(ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon;

(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another; or

(iv)Intentionally, knowingly or recklessly causes bodily injury to a woman whom he knows is pregnant.

(b) Aggravated assault and battery is a felony punishable by imprisonment for not more than ten (10) years.

2 . The prosecutor challenged the defense counsel’s version of what he told the deputy but failed to present the deputy sheriff to testify about the matter, infra, p. 3.

3 . The subject of "coaching" was discussed in a United States Supreme Court case where the court held that the trial court’s order preventing the accused from consulting with his counsel about any subject during a 17-hour overnight recess between the accused's direct-and-cross-examination violated the accused’s sixth amendment right to counsel. In relevant part, Chief Justice Burger writing for the Court said:

The opposing counsel in the adversary system is not without weapons to cope with "coached” witnesses. A prosecutor may cross-examine a defendant as to the extent of any "coaching” during a recess, subject, of course, to the control of the court. Skillful cross-examination could develop a record which the prosecutor in closing argument might well exploit by raising questions as to the defendant’s credibility, if it developed that defense counsel had in fact coached the witness as to how to respond on the remaining direct examination and on cross-examination.

Geders v. United States, 425 U.S. 80, 89-90, 96 S.Ct. 1330, 1336, 47 L.Ed.2d 592, 600 (1976).

For a useful and comprehensive analysis of the witness preparation problem, see John S. Applegate, Witness Preparation, 68 Texas L.Rev. 277 (1989). Although Professor Applegate examines the many aspects of the problem in the civil litigation context, his article is illuminating to the criminal law practitioner as well. With respect to the specific issue in the case at bar, a lawyer’s suggesting actual language to be used by a witness, Professor Applegate, relying on District of Columbia Bar, Legal Ethics Comm., Op. No. 79 (1979) (hereinafter Op. No. 79), notes that that practice “may be appropriate, as long as the ultimate testimony remains truthful and is not misleading.” Applegate, supra note 5 at 279, and accompanying text.

Op. No. 79 specifically concerned a witness’ written testimony submitted in an adjudicatory hearing before a federal regulatory agency. Nevertheless, the opinion states

that the particular words in which testimony, whether written or oral, is cast originated with a lawyer rather than the witness whose testimony it is has no significance so long as the substance of that testimony is not, so far as the lawyer knows or ought to know, false or misleading * * *. [Tjhat a lawyer suggests particular language to a witness means only that the lawyer may be affecting the testimony as respects its clarity and accuracy; and not necessarily that the effect is to debase rather than improve the testimony in these respects.

Op. No. 79 at 139 (provided by the Texas Law Review, Austin, Texas).

4 . Applegate, supra note 3 at 290 n. 52, points out, “Logically, the [attorney-client] privilege should apply only to factual communications from the client to the lawyer. In practice this distinction is difficult to maintain, because much communication from the lawyer to the client reveals privileged client communications.”

With respect to the issue of waiver of the attorney-client privilege, "[a] privilege-holder who testifies * * * at trial about his privileged communications with his attorney * * * waives his right to invoke a privilege against cross-examination or testimony by others with regard to the same matter.” Developments in the Law — Privileged Communications, 98 Harv. L.Rev. 1450, 1633 (1985).