People v. Mitchell

OPINION OF THE COURT

Defendant has been convicted after a jury trial of murder, second degree, for the stabbing death of a prostitute named O’Hare McMillon. He contends that his conviction must be reversed because it rests on evidence of privileged statements he made in his lawyer’s office and statements improperly solicited by a police guard while he was in custody, and because the court’s charge to the jury violated the rule in Sandstrom v Montana ( 442 US 510 ). The

Defendant was a resident of Waterloo, New York, and, at the time these events occurred, he was under indictment for causing the stabbing death of his girlfriend, Audrey Miller, in February, 1976. He was represented on that charge by Rochester attorney Felix Lapine. In January, 1977 defendant went to Rochester to take care of some personal matters and registered at the Cadillac Hotel. On the evening of January 5 while sitting at the hotel bar, he met O’Hare McMillon. They had two or three highballs and then were seen to leave the bar about 11:00 p.m. and take the elevator to the floor on which Mitchell’s room was located. No one saw either of them leave defendant’s room that night or the next. morning, but in the afternoon of January 6, on a tip from attorney Lapine, the police went to defendant’s hotel room and found the partially clad dead body of O’Hare McMillon on the bed. She had been stabbed 11-12 times in the face, chest and back. At least four of the wounds were sufficient to cause her death by exsanguination.

After leaving the hotel room that morning, defendant went to attorney Lapine’s office. Lapine was not in but defendant met and spoke to a legal secretary, Molly Altman, in the reception area. She testified that he seemed nervous and as if he was looking for someone. Apparently he could not find whomever it was he was looking for so he left only to return a minute later and start telling her about what happened the night before. She testified that he said: “he wanted to go out and have a last fling * * * he had been out drinking and met a girl and then he woke up in the morning and she was dead. He had stayed there all night and then he walked out again”.

Ms. Pope-Johnson entered the room. She asked defendant what was wrong and he told her: “that there was a dead body and he felt that he had done it and that the person was dead, that she was dead because of being stabbed.”

Shortly thereafter, Lapine entered the office and talked privately with defendant. After defendant left Lapine called the police and had them check defendant’s hotel room. The body was discovered, defendant’s identification learned from the hotel registration and defendant found and arrested at a bar near the courthouse.

At the police station while defendant was waiting to be processed, he was placed in a room and guarded by a Sergeant Page. He had been given his Miranda rights, and attorney Lapine had visited him privately and advised the police not to interrogate his client. It was Page’s testimony, credited by the trial court and the Appellate Division, that defendant, while so guarded, spontaneously asked Page if the police had found the knife and then stated: “I must have killed her like I did Audrey and I don’t remember that either.” “I picked her up in a bar last night.” At trial the statements were redacted to eliminate the reference to Audrey and received by the court as spontaneous statements. That finding of fact was supported by the evidence (see People v Lynes, 49 NY2d 286 , 294; cf. People v Lanahan, 55 NY2d 711 ). Molly Altman, Judy Peacock and Robin Pope-Johnson also testified at trial about defendant’s inculpatory statements made in the law office after the court determined that the statements were not privileged.

Defendant sought to foreclose the testimony of Pope-Johnson, Altman and Peacock, contending that because of Lapine’s prior retainer by defendant for the homicide of his girlfriend there was an ongoing attorney-client relationship which made any statements of defendant uttered in Lapine’s office or waiting room privileged. The court excused the jury and conducted a voir dire of Mr. Lapine and

Attorney Lapine testified that he was first retained by defendant in February, 1976 and that he was retained by defendant on this indictment the afternoon of January 6, 1977; that he was not present when Mitchell entered his office at noon on January 6 and that he did not know who was. Lapine did not talk with defendant about this charge until after defendant’s conversations with Ms. Pope-Johnson, Ms. Mitchell and Ms. Peacock. He testified further that he had one employee working for him at the time, Ms. Pope-Johnson. On cross-examination he testified that he occupied the offices with attorneys named Napier and Bushorr and that he and Napier were partners “[i]n a vague sort of way.” The relationship between Lapine and Napier was never clarified but Lapine did testify that Bushorr was not associated with either Napier or himself but was given free office space near Ms. Pope-Johnson’s desk in exchange for the work he did for them.

After Lapine testified, defense counsel moved to exclude the testimony of Ms. Pope-Johnson on the grounds of privilege. The court refused to accept defense counsel’s contention that there was continuous representation originating with Lapine’s retainer to represent defendant on the unrelated indictment for the February, 1976 homicide and held also that the employee could not establish an attorney-client- relationship for her employer in his absence. The court ruled that Ms. Pope-Johnson could testify to any conversation with defendant before Lapine returned to the office.

Defense counsel then conducted a voir dire of Ms. Pope-Johnson. She testified that she knew of the representation on the 1976 homicide but that she had, at most, said hello to defendant prior to January 6 and that she did not speak to him on the telephone about this case that day before he came to the office. Defense counsel then considered checking Lapine’s telephone logs or offering defendant’s testimony that there .had been a morning telephone call to Ms. Pope-Johnson to establish the retainer. The court did not foreclose the evidence but indicated that in its judgment it

On this state of the record, we conclude that defendant has not met his burden of establishing that when he spoke to these unknown women in a common reception area, his statements were intended to be confidential and made to an employee of his attorney for the purpose of obtaining legal advice. The only evidence identifying the women came from Lapine who responded to a question whether he had “any female employees” by saying “Yes, Robin Pope-Johnson”. She, it turns out, was the last woman in the office to hear defendant’s inculpatory statements and even if statements made to her at the time could have been privileged, the privilege was lost because of the prior publication to nonemployees and the utterance of the statements to Pope-Johnson in front of the nonemployees (see People v Buchanan, 145 NY 1 , 26; People v Belge, 59 AD2d 307 , 309). Taking this view we need not consider whether the statements could be privileged because of an ongoing retainer between defendant and Lapine or if they could be privileged if made to the attorney’s employee before a formal retainer was agreed upon.

Over defendant’s objection, the court charged the jury that a “person is presumed to intend the natural and probable consequences of his act and, accordingly, if the consequences are natural and probable, he will not be heard to say that he did not intend them.” We agree with

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.