State v. Sherwood

Johnson, J.,

dissenting. If the right to counsel guaranteed by 23 V.S.A. § 1202(c) is to have any meaning, it must entail, at the very least, the right to consult with one’s attorney in relative privacy. The Court’s holding that although the police department violated defendant’s right to counsel, defendant is not entitled to any remedy, eviscerates that right and mocks the hallmark of consultation with a lawyer — the confidentiality of attorney-client communications. Because I believe that when a police department routinely and deliberately creates a video and audio record of a defendant’s conversation with his attorney, the only appropriate remedy is dismissal of the charge, I respectfully dissent.

It is axiomatic that client communications with an attorney are confidential. It is this confidentiality that allows for a free and uninhibited conversation between attorney and client, and .without the assurance of which, a client in defendant’s position might not reveal information crucial to his defense. “The statutory right to counsel... includes the right to communicate freely with an attorney in private.” Pfeil v. Rutland Dist. Ct., 147 Vt. 305, 309, 515 A.2d 1052, 1055 (1986). The practice at issue here, surreptitiously videotaping defendant while he speaks on the telephone with his attorney, is no different from stationing a police officer in the room with the defendant. The effect is the same — it destroys the basis for open conversation with an attorney by burdening the defendant with the fear that what he says may be heard and used against him by the police.1

*35To evaluate whether the right to counsel has been violated, our inquiry is, as the majority recognizes, an objective one. State v. West, 151 Vt. 140, 145, 557 A.2d 873, 876 (1988). We must formulate that inquiry in a manner that focuses on the police conduct, because “[t]o allow unauthorized police action to cloud the otherwise voluntary nature of the decision to refuse testing would be inconsistent with” the right to counsel. State v. Carmody, 140 Vt. 631, 636, 442 A.2d 1292, 1295 (1982). We ask, therefore:

whether, under the totality of the circumstances, reasonable efforts were made to afford defendant an opportunity to communicate privately with counsel. Neither the subjective beliefs of the defendant nor those of the police are determinative; rather, the test focuses on the nature of the physical setting within which the events take place and, in order to avoid reliance on after-the-fact, self-serving declarations of either the police or defendant, how a reasonable person in the defendant’s position would have understood his situation.

West, 151 Vt. at 145, 557 A.2d at 876-77 (emphasis added). Under the facts of this case, the appropriate inquiry is whether a reasonable person would feel free and uninhibited to consult with his attorney if he knew the police were monitoring his every word.

According to this standard, the trial court’s error is clear. The court applied a subjective test by focusing on whether this defendant actually felt inhibited, not whether a reasonable person, apprised of his situation, would have felt inhibited. The result of the court’s error is that it rewards the police for their subterfuge. Had police officers physically sat in oh defendant’s conversation, it is quite possible that defendant would have been inhibited in his conversation with his attorney. But because this monitoring was done without defendant’s knowledge, the police avoided the chilling effect that their physical presence might have had. Indeed, the court’s determination that, defendant did not feel inhibited under the circumstances is a meaningless finding because defendant did not know that his conversation was being videotaped. It is certainly no surprise that defendant did not feel inhibited in his conversation when he was unaware of the intrusion into that conversation. Thus, defendant’s state of mind is not at all probative of the relevant legal criteria.

*36Applying a truly objective inquiry, there can be no doubt, as the majority concludes, that there was a violation of the statutory right to counsel. Defendant’s openness and lack of inhibition can be attributed to his mistaken assumption that his conversation was private. A reasonable person who knew that his conversation was being listened to would not conclude that he was afforded “the right to communicate freely with an attorney in private.” Pfiel, 147 Vt. at 309, 515 A.2d at 1055.

The majority, however, concludes that in order to determine whether defendant was prejudiced by this violation depends, in part, on his subjective experience.2 The majority’s conclusion “mak[es] clearly impermissible police practices permissible, depending on how they might have been perceived by the defendant.” West, 151 Vt. at 148, 557 A.2d at 878 (Mahady, J., dissenting). Such analysis compounds the error made in West, where the Court failed to apply the objective inquiry that it purported to adopt. In West, the Court held that there was no violation of the defendant’s right to counsel when, in fact, the defendant spoke with his attorney while “one police officer remained near the cubicle, and another paced the adjacent aisle, periodically checking on defendant.” West, 151 Vt. at 141, 557 A.2d at 874. The Court relied heavily on the defendant’s own testimony that he did not request more privacy, even though he knew he was entitled to it. West is distinguishable, however, because in that case the defendant at least knew that he was being monitored by the police, and thus it is conceivable that his testimony approximates the perspective of the reasonable person. Here, defendant was completely unaware that he was under watch and his conversation was being recorded, so it makes no sense to rely on defendant’s testimony.

Thus, the majority’s contention that defendant must show prejudice fails to recognize that a defendant would be hard-pressed to present evidence that surreptitious videotaping interfered with his contact with his attorney. The effect of the majority’s reasoning is to condone secret videotaping as long as a defendant is unaware he is being monitored. This error demands a remedy in part because the taping of *37defendant’s conversation with his attorney was not an isolated incident, but an ingrained practice of these barracks, one that outwardly flaunts its disrespect for the importance of confidential attorney communication.3

The remedy for the violation of the right to counsel in this case ought to be outright dismissal. The facts of this case show that at every possible opportunity both the police and the state’s attorney demonstrated a flagrant disregard for defendant’s right to consult an attorney in private. After the police violated defendant’s statutory right, the state’s attorney exacerbated the error by printing defendant’s conversation in the record so as to demonstrate that defendant was not inhibited. Because “the impact of actions seen as coercive or restrictive is almost impossible to measure after the fact... we are compelled to the position that a mere demonstration that such actions occurred creates a flaw in the procedure.” Carmody, 140 Vt. at 636, 442 A.2d at 1295. To deter this conduct by the police and to protect the right to counsel in these cases, dismissal is the only appropriate remedy. The New Jersey Supreme Court warned that dismissal is the appropriate remedy where the violation recurs: “If it becomes clear that such eavesdropping is not an isolated occurrence, any indictment founded upon this surveillance shall be dismissed. Fundamental fairness would require [us] to eliminate the risk of apparent judicial tolerance and to deter more effectively the illegal practices themselves.” State v. Sugar, 417 A.2d 474, 481 (N.J. 1980).

Additionally, the assurance that the conversation was not listened to or will not be used in defendant’s prosecution rings hollow. Because the prosecution has already viewed the videotape of the conversation, there is no way to ensure that defendant will not be harmed by the information contained therein. Defendant could suffer a detriment more subtle than the explicit use of the contents of the conversation against him. As the Third Circuit concluded under similar circumstances, “it is highly unlikely that a court can ... arrive at a certain conclusion as to how the government’s knowledge of any part of the defense strategy might benefit the government in its further investigation of the case.” United States v. Levy, 577 F.2d 200, 208 (3d *38Cir. 1978). Although a DUI prosecution is a relatively simple matter, the point remains that any knowledge by the prosecution of a defendant’s private contact with his attorney undermines the integrity of the entire process. Here that concern is justified because the state’s attorney spread the whole conversation on the record to establish that defendant was not inhibited. Even if the state’s attorney had not acted so carelessly, however, disclosure of the conversation to at least the trial court would be required to determine whether defendant was prejudiced by the violation of his right to consult an attorney.4 Given the sensitivity of the information contained in an attorney-client conversation and the uncertainty of assertions of its nonuse, other cases that have confronted the violation of attorney-client confidence have concluded that dismissal is the only remedy that would “effectively discourage the odious practice of eavesdropping on privileged communication between attorney and client.” State v. Cory, 382 P.2d 1019, 1023 (Wash. 1963).

Finally, I am persuaded that dismissal of the case is warranted in light of the reason advanced by the State to justify its routine procedure. The State claims that the reason the videotape is not stopped during conversation with attorneys is to avoid accusations that the tape had been tampered with. It cannot be the case, however, that the state police may commit one flagrant violation of the law by taping confidential conversations in order to avoid potential, future allegations of another. Even if the concerns for these potential allegations are valid, recording conversations with attorneys is hardly the only solution. For instance, the police could at least inform the suspect that he was being recorded, the tape could be stopped and started with consent from the suspect, or the police could disconnect the recording of volume leaving only the image for that period of time. Thus, the State has failed to identify any exigency that would necessitate such an intrusive violation into defendant’s rights.

Almost twenty years ago, we found no violation of the right to counsel when police officers were nearby the defendant when he spoke with his attorney because the defendant posed “a legitimate security risk.” State v. Lombard, 146 Vt. 411, 415, 505 A.2d 1182, 1185 (1985). At *39the conclusion of that opinion we warned that “we in no way sanction or approve of police conduct which effectively prevents defendants from freely communicating with their attorneys in private. Defendants must be afforded a meaningful opportunity to consult with counsel before submitting to a breath test. Police practices [that] unjustifiably interfere with this right cannot be tolerated.” Id. Today, the Court repeats this warning at the end of its opinion. 174 Vt. at 33, 800 A.2d at 467-68. We cannot expect police to take these admonitions seriously if there are no consequences for failing to heed the Court’s own cautions. I respectfully dissent.

I am authorized to state that Justice Skoglund joins this dissent.

There are, however, circumstances where such monitoring may be necessary, such as when the defendant poses a security risk. In those cases, the need for confidentiality *35must be balanced against the requirements of public safety. Here, both the trial court and the majority acknowledge that defendant did not pose a security risk.

A prejudice inquiry asks whether defendant was harmed by the use of the taped conversation in the criminal proceeding. Although I disagree with the majority on the answer to this question, see 174 Vt. at 37-38, 800 A.2d at 470-71, 1 recognize that this is the proper question on the prejudice element of defendant’s claim. Requiring defendant to prove that he was subjectively inhibited in order to show “prejudice” muddles the line between the objective test for a violation the majority purports to adopt and the subjective test used by the trial court, and in West, 151 Vt. at 145, 557 A.2d at 877.

Although the State represented at oral argument there was no practice of videotaping attorney-client conversations, that contradicts the testimony of the trooper involved in this case. At the suppression hearing, Trooper Whitcomb testified as follows:

Q: As a matter of usual processing do you videotape?
A: Yes... we do not cut the videotape off.

The majority acknowledges this error and suggests that such information could be viewed in camera or under seal. See 174 Vt. at 30 n.*, 800 A.2d at 465 n.*. Nevertheless, dismissal obviates the need for even this limited disclosure. The content of defendant’s discussion with his attorney is irrelevant to the question of whether he was denied the right to consult with his attorney in private, and it should be protected as vigorously as possible, including avoiding divulgence to a judge, when possible.