Thursday, October 10, 2013
C.A. Upholds Contempt Citation Against Murder Suspect’s Lawyer
Panel Says Court Not Bound by Attorney’s Representation She Received Portfolio From Client’s Agent
By KENNETH OFGANG, Staff Writer
The Fourth District Court of Appeal has upheld a contempt citation against the former counsel for a woman accused of killing an elderly man for his money.
Div. One late Tuesday denied a writ of prohibition sought by San Diego Deputy Public Defender Terry Zimmerman, who was ordered jailed last month by San Diego Superior Court Judge Charles Rogers. The court said Zimmerman must report to jail or answer questions as to how she came into possession of a leather portfolio that belonged to Gerald Eugene Rabourn, as well as eight pieces of unopened mail addressed to him.
Rogers imposed the order of continuing contempt last month, but stayed it while Zimmerman sought the writ. The appellate panel granted a further stay , but lifted it, effective next Tuesday.
Rabourn, 89, disappeared in October 2010 and his body has never been found. News accounts say his daughter reported him missing the following February, saying she was sure he was dead because he did not send her a card on her birthday.
The daughter told reporters she had asked Rabourn to move to the Midwest, where she lived, but he said he was planning to live with a woman named Denise. Denise Michelle Goodwin, 46, a caretaker for Rabourn’s wife before her death from cancer, was charged with first degree murder with a financial-gain special circumstance after having been arrested two years ago while boarding a flight for Europe.
Goodwin allegedly began converting assets to her own use within days of the death of Rabourn’s wife.
In April of last year, shortly before being transferred to the public defender’s Vista office, Zimmerman turned over to the trial court the portfolio—which contained Rabourn’s will and other estate planning documents—and the unopened mail. The evidence was released to the prosecution, without objection.
Prosecutors then requested that the defense identify the source or sources from whom Zimmerman obtained the evidence. When counsel declined, prosecutors filed a discovery motion.
Rogers, after proceedings that took place partially in open court and partially in camera, ruled that Zimmerman had to answer questions about who supplied her with the evidence and when and where it was obtained, and to identify anyone who participated in the pickup or delivery of the evidence. When Zimmerman refused, the judge held her in contempt.
Justice Richard Huffman, writing for the Court of Appeal, said the trial judge was correct.
Proof Found Lacking
The attorney-client privilege, he explained, does not apply to the delivery of physical evidence to a lawyer unless the person transmitting the evidence is the defendant or the defendant’s agent. In this case, he said, there was no claim that the evidence came from Goodwin, who is in jail, and the court cannot accept a naked representation that it came from one or more unidentified agents of the defendant.
The jurist cited People v. Lee (1970) 3 Cal.App.3d 514, in which the court rejected the contention that the defendant’s wife, who provided her husband’s counsel with a pair of shoes that may have been used to batter the victim, was acting as the defendant’s agent, so that employees of the public defender’s office did not have to testify as to who gave them the shoes, which they turned over to the court.
The justice wrote:
“Here…the evidence of agency is meager. The record contains little more than Zimmerman’s claim that an agency situation exists. There is a dearth of evidence a court could even consider to determine if agency exists.”
“We have scoured the record, including the transcripts filed under seal. We determine there is not any evidence that could establish agency. We do not know if Zimmerman received the portfolio and the mail at the same time. We do not know if Zimmerman contends there is more than one agent. We do not know the identity of the alleged agent(s). In short, we know very little of the circumstances regarding how Zimmerman came into possession of the portfolio and mail. On such a sparse record, we cannot contemplate how the superior court would have been able to find agency. We certainly cannot.”
The case is Zimmerman v. Superior Court (People), 13 S.O.S. 5216.
Copyright 2013, Metropolitan News Company