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HEAD NOTE : Forbes v . State , No. 1661, September Term, 2005

EVIDENCE; CRO SS EXAMINATION ; PRIVILEGED COM MUNICATION S: Harrison v. State , 276 M d. 122 ( 1975) require s that, before the prosecutor questions the criminal defendant about anything that the defendant did -- or did not -- say to his or her lawyer, (1) the prosecutor must first request the trial judge's permission to pursue that line of inquiry, and (2) after inquiring into all the surrounding facts and circumstances, the trial judge expressly identifies the permissible and the prohibited areas of inquiry. In a jury trial, bo th the req uest an d inqui ry must tak e place out of th e prese nce of the jury.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1661 September Term, 2005 ___________________________________

ELMER CLEVELAND FORBES, JR.

v.

STATE OF MARYLAND

_________________________________ Murp hy, C.J., Salmon, Barbera, JJ. ____________________________________ Opinion by Murphy, C.J. ____________________________________ Filed: September 7, 2007

In the Circuit Court for Baltimore County, a jury convicted Elmer Cleveland Forbes, Jr., appellant, of robbery with a dangerous weapon and use of a handgun in the com miss ion o f tha t felo ny. Despite his argu men t to th e con trary, 1 we hold that the State's evidence was sufficient to establish that he committed those offenses on March 20, 2002 at a Royal Farm Store on North Point Boulevard. He also argues that there are two reasons w hy he is entitled to a new trial: I. THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO QUESTION [APPELLANT ] SO AS TO INSINUATE THAT [APPELLANT] AND HIS COUNSEL HAD AGREED AND ATTEM PTED TO SUBORN PERJURY, IN VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE, AND IN THE ABSENCE OF A G OOD-FAITH BASIS TO ASK SUCH QUESTIONS. THE TRIAL COURT ERRED IN OVERRULING OBJEC TIONS TO CL OSING ARGU MEN T, AND IN DENYING A MOTION FOR MISTRIAL.

II.

For the reasons that follow, we agree with appellant's first argument, as a result of

Appellan t has presen ted three arg uments fo r our review , the third of w hich is his "sufficiency" argument. In the words of his brief: THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTIONS, AND, THEREFOR E, DEFENSE COUNSEL'S FAILURE TO ARGUE WITH PARTICULARITY FOR A JUDGMENT OF ACQUITTAL ON THE OFFENSE OF ROBBERY WITH A DANGEROUS WEAPON AND ON THE ISSUE OF ACCOMPLICE CORROBORATION DEPRIVED [APPELLANT] OF THE EFFECTIVE ASSISTANCE OF COUNSEL. 1

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which ap pellant's seco nd argum ent is hypothetic al and mo ot. We m ust therefore vacate the judg ments a nd rem and fo r a new trial. Relevant Factual Background The State's witnesses against appellant included Steven Gessner, who testified as follows. He and appellant went to the store with the intent to rob a drug dealer they planned to meet behind the store. They entered the store after they could not lure the drug dealer to the lo cation wh ere they intende d to comm it the robbery. A t this point, to Gessner's surprise, appellant committed the robbery. Gessner's testimony was corroborated by John Fouts, who reviewed photographs that had been created from the store's videotape on which the robbery was filmed, and identified appellant as one of the two robbers. Appellant's brief includes the following assertions: [I]n defense, [appellant] adduced evidence that he could not have committed the robbery on March 20, 2002, because he was with family members the entire night. He remembered this, three years later, because Catherine Fouts, the mother of his son, died in March 2002, and the viewing at Connelly's Funeral Home was on March 20, 2002 from 7:00 to 9:00 p.m. Ms. Fo uts's family members had warned M r. Forbes to s tay away, but, acco rding to M r. Forbes an d his sister Helen Forbes, she gave him a ride to the funeral home, but he did not go inside to the room where the viewing took place. According to both Mr. and Ms. Forbes, after the viewing, th ey talked in the p arking lot, an d then w ent to their mother's h ouse, wh ere they spent th e night. Additionally, according to Michael Knighton and Jason Delcidello, Mr. Gessner told them that he had committed the 2

robbery, not w ith Elmer F orbes but h is brother, Sa mmie Forbes, who closely resembles him. Sammie Forbes appeared before the jury, but did not tes tify, as he had inv oked his F ifth Amendment privilege against self-incrimination. The record shows that the following transpired during appellant's crossexamination: [THE PROS ECU TOR :] [APPE LLAN T:] Your brother is Sammie?

Yes, sir. Did you ev er tell Samm ie to lie for you?

[THE PROS ECU TOR :]

[APPE LLAN T:]

To lie for me? Yeah.

[THE PROS ECU TOR :] [APPE LLAN T:] No.

[THE PROS ECU TOR :]

Did you ever tell him wh y don't you come in and testify for you that he did it an d that you didn 't?

[APPE LLAN T:]

No, sir.

[THE PROS ECU TOR :] [APPE LLAN T:]

You ne ver told him to do that?

No, sir. To your knowledge, at a prior trial, [Sammie Forbes] was never here ready to take your directions, is that what you're saying?

[THE PROS ECU TOR :]

[APPE LLAN T:]

He was here at the courthouse one time, yes. 3

[THE PROS ECU TOR :]

He was downstairs, in the lockup, wasn't he?

[APPE LLAN T:]

I don't kno w. They do n't put them with us. I know that. But you wanted your lawyer to get him here to lie for you, didn't you? Objec tion.

[THE PROS ECU TOR :]

[DEF ENSE COU NSEL :] [APPE LLAN T:] THE COURT:

No, sir. Overruled. Did you ev er tell your lawyer tha t, Hey, listen , Samm ie did it. Samm ie will lie. Sam mie will tell a story. Sammie will get up, Samm ie will say he did it. Did you ever say anything like that --

[THE PROS ECU TOR :]

[APPE LLAN T:]

No, sir. Objection. to you r atto rney?

[DEF ENSE COU NSEL :] [THE PROS ECU TOR :] [APPE LLAN T:] THE COURT:

No, sir. Overruled.

The record also sho ws that this cross-examina tion occurred the day before appellan t's br othe r Sam mie a ppeared befo re the jury.

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Discussion In Haley v. S tate , 398 M d. 106, 919 A.2d 12 00 (2007 ), the Court o f Appe als recently awarded a new trial to a robbery defendant who was cross-examined about (1) whether he had provided his lawyer with the information he testified to on direct examination, and (2) when he provided that information.2 In that case, the alleged victim "denied ever having seen [the defendant] prior to the incident." Id . at 116. The defendant, how ever, testified that he and the victim "h ad been dating of f and on for ov er a year," and "[i]n an effort to demonstrate an ongoing relationship with [the alleged victim], [the defendant] described... items inside the [alleged victim's] residence, and [the alleged victim's] dog." Id. at 117-18. According to the Court of Appeals: Petitioner's complaint is not solely that he was crossexamine d about the facts surrou nding his d efense; his complaint is also that the State inquired into the timing of when he disclose d certain info rmation to h is attorney. In fact, the two issues are linked based on the prosecutor's phrasing of questions. *** Haley's communications to his lawyer, and the timing of whe n he told the attorney the critical in formation , fall within the attorney-client privilege. ***

We note that the holding in Haley was not available to the circuit court. The appellate court, however, is required to apply the law as it exists on the date that the opinio n is filed . Snowd en v. State , 156 M d. App . 139, 15 2 n.18 ( 2004) , aff'd , 385 Md. 64 (20 05). 5

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The purpose and object of the prosecutor's questions as to the timin g of wh en petitioner to ld his attorney ab out his relationship with the victim and the information about the victim's hou se was to d iscredit petitione r's testimony an d to convince the jury that petitioner's defense was an afterthought or manufactured on the eve of the trial. It was not the proper subject of cross-examination and put the credibility of petitioner in issu e based o n what an d when he told his attorney. Petitioner's testimony as to the facts of the event at issue did not constitute a waiver of the attorney-client privilege as to what and when h e comm unicated w ith his attorney as to the incident. The prosecutor's repeated questions as to when and what petitioner told his attorney went beyond the scope of proper cross-examination and invade d the atto rney-clien t privileg e. 398 M d. at 129 -31, 919 A .2d at 12 13-14 . Acco rding to the State , Haley is inapplicable to the case at bar because (in the words of its brief): In the instant case, ... [appellant] did not disclose either the content of his communications with his attorney, nor the timing of those communications. In fact, he denied having the c omm unic ation the S tate a sked him about. A ccor ding ly, no privilege was breached. We disagree with the State's argument. We are persuaded that the prosecutor should not have been permitted to ask appellant, in effect, whether, during a confidential communication with his lawyer, appellant (1) confessed that he had committed the robbery, and (2) asked his lawyer to call a defense witness who was prepared to present false testimo ny. It is of no consequence that appellant denied the accusations contained in the

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prosecutor's questions. As this Court pointed out in Garner v. State , 142 Md. App. 94 (2002): Question s alone can impeach . Apart from their mere wording, through voice inflections and other mannerisms of the examiner-things that can not be discerned from the printed record they can insinuate; they can suggest; they can accuse; they can create an aura in the courtroom that the trial judge can sense but about which we could not speculate. The most persistent denials, even from articulate... witnesses, may not suffice to over come the susp icion the y can eng ender.... Elmer v. S tate , 353 Md. 1, 15, 724 A.2d 625, 632 (1999)(quoting Craig v. Sta te , 76 Md. App. 250, 292, 544 A.2d 7 84, 805 (1988 ), rev'd on other grounds, 316 Md. 551, 560 A .2d 112 0 (198 9), jdmt. vacated on other grounds, 497 U.S. 83 6, 110 S .Ct. 315 7, 111 L .Ed.2d 666 (1 990)). Id. at 107. We recognize that the attorney-client privilege does not operate to exclude everything the criminal defendant says to his or her lawyer. In Newm an v. State , 384 Md. 28 5 (2004), th e Court of Appea ls stated that "[t]h e privilege, alth ough esse ntial to an effective attorney-client relationship, is not absolute." Id. at 302. The Newman Court also stated: [W]e ag ree with the Suprem e Court's a ssessmen t that it wou ld be an ab use o f the privilege to pe rmit t he at torneyclient privilege to "extend to communications `made for the purpose of getting ad vice for the comm ission of a fraud' or a crime." United Sta tes v. Zolin , 491 U.S . 554, 563, 1 09 S.Ct. 2619, 2626, 105 L.Ed.2d 469, 485 (1989). Thus, we hold that the crime-fraud exception applies in Maryland to exempt 7

communications seeking advice or aid in furtherance of a crime or fraud, from the protection of the attorney-client privilege. Id. at 309. Newman makes it clea r that, if appellan t had asked his trial couns el to call a defe nse w itnes s wh o wa s pre pare d to p rese nt fa lse exculpato ry testimony, 3 appellant's trial counsel would have been permitted to disclose the fact that appellant made such a reques t. Id. at 310-12. In the case at bar, however, (1) appellant's trial counsel made no such disclosure, and (2) there is no indication in the record that the State could present admissible e vidence th at appellant m ade such a request. 4 Under these circumstances, appellant was unfairly prejudiced by the cross-examination questions accusing him of asking his trial counsel to call Sammie so "Sammie will say he did it." We also recognize that there are situations in which the "opening the door rule" operates as a waiver of the attorney-client privilege. For example, in Casey v. S tate , 124 Md. App. 331 (1999), while ordering a new trial on the ground that the appellant had

In State v. Lloyd, 48 Md. App. 535 (1981), this Court made it "clear that when a defendant tells his attorney before trial that he committed the crime charged and the attorney is convinced that his client is telling the truth, the attorney is precluded... from calling or presenting alibi witnesses who would offer perjured testimony." Id. at 546. On the other hand, the gambit of having Sammie Forbes -- who did not testify -- "appear before the jury" is consistent with defense counsel's "obligation to make the State prove its case." Id . at 547. If a criminal defendant does request that his or her lawyer call a witness who will present false exculpatory testimony, wh ile the lawyer may disclose suc h a reques t, MD. R ULE O F PRO F'L CO NDU CT R. 3 .3(E) (200 6) does no t require the lawyer to do so. 8
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been cross-examined about conversations with his lawyer that were unrelated to those conversa tions with h is lawyer that ap pellant wro te about in a letter to a co-de fendant, this Court stated: We agree with the circuit court that the State was entitled to question appellant about the text of his letter, about those conversations w ith his attorney disclosed in the letter, and abou t the fact that the letter contains a disclosure o f his then existing intent to com municate informatio n to his cou nsel. ... On the record before us, however, we are persuaded that appellant's letter did not open the door to cross-examination about anythin g else that ap pellant did n ot disclose to h is attorney. The privilege at issue protects against "testimony that no such communication was ever made between the client and the attorney." Harris on v. Sta te, 276 Md. 122, 152, 345 A.2d 830 (19 75). Id. at 345-46. In Casey , this Court es tablished the following procedu re to be app lied on retrial: When this issue arises at the n ext trial, the circuit court should resolve it in accordance with the procedure called for in Harrison, supra, 276 Md. at 151, 345 A.2d 830, "a preliminary inquiry out of the presence of the jury" to identify the permiss ible and the prohibited a reas of inq uiry. The State is, of course, entitled to introduce appellant's letter to [codefenda nt]. If appellan t testifies, the State will be entitled to establish on cross-examination (1) that he received from counsel the information disclosed in the letter, and (2) that the letter expressed his then existing intent. U nless appellant's direct examination "opens the door" to other privileged communications, however, the circuit court must not allow the State to question appellant about (1) when he obtained counsel, (2) anything else th at he said -- an d did not sa y -- to his attorney, and (3) anything else that his attorney said -- and did not say -- to him.

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Id. at 346-47. This procedure complies with the "preliminary inquiry" requirement imposed by Harris on, sup ra, in which the Court of Appeals stated: Procedurally, we think [the trial judge] erred in not conducting a preliminary inquiry out of the presence of the jury and hearing testimony of all the surrounding facts and circumstances to determine initially whether a confidential relationship existed between Harrison and [the law yerwitness], and if so, whether or not there had been a waiver of the priv ilege. Id. at 151. We there fore hold th at Harrison prohibits the prosecutor from cross-examining the defendant abou t anything that the defendant did -- or d id not -- say to his or her lawyer, unless and until (1) the pro secutor has expressly requ ested the trial jud ge's perm ission to do so, and (2) after inquiring into "all the surrounding facts and circumstances," the trial judge has expressly identified "the permissible and the prohibited areas of inquiry." We also hold that, in a jury trial, both the request and inquiry must take place out of the presence of the jury. We are confident that, had such a request been made in the case at bar, the inquiry would have resulted in a ruling that prohibited the prosecutor from asking the unfairly pre judicial ques tions. App ellant is entitled to a new trial.

JUDGMEN TS VACATED ; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCON SISTENT WITH THIS OPINION; COSTS TO BE PAID BY BALTIMORE COUNTY. 10



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