Tuesday, November 27, 2001
Attorney May Testify That Ex-Client Threatened Witnesses, C.A. Rules
By a MetNews Staff Writer
An exception to the attorney-client privilege allows a lawyer to testify that his former client, a defendant in a criminal case, threatened to kill witnesses, this district’s Court of Appeal ruled yesterday.
Div. Four affirmed Chanh Minh Dang’s conviction and sentence for committing multiple crimes of violence against his former girlfriend and the family she was living with.
Dang was arrested in late 1998 and charged with several offenses resulting from a series of incidents, including one in which he allegedly entered the home of the Huynh family without permission, grabbed Loan (Jennifer) Nguyen, threatened to kill her if she didn’t return gifts he had given her, burned her with a cigarette, hit her on the head with a gun, and threatened to kill the Huynhs if they reported him to the police.
Dang was originally represented by attorney Mark Smith. Smith, however, later notified the district attorney that Dang had threatened witnesses. In his motion to be relieved as counsel, which was granted, Smith said Dang had threatened to kill him after he sought to dissuade Dang from interfering with the witnesses.
Prosecutors filed an amended information charging Dang with residential burglary, false imprisonment, 10 counts of felonious assault and four counts four counts of witness intimidation.
At trial, prosecutors called Smith. Dang’s ex-lawyer testified, over defense objection, that Dang said he was going to try to “pay off” the witnesses against him, and if that didn’t work, was going to “whack” them.
Smith said he understood Dang to mean that he intended to bribe or kill the witnesses.
Los Angeles Superior Court Judge Victor Person allowed the testimony, ruling that it was admissible under Penal Code Sec. 956.5 and that the prejudice to defendant did not outweigh the probative value. The judge instructed the jury that if it found that Dang made the comments, it could consider them as evidence of consciousness of guilt, but that the statements by themselves did not prove guilt and that the weight was for the jury to decide.
Jurors found Dang guilty on all 16 counts, and found that he personally used a firearm in the commission of 14 of the offenses. He was sentenced to an aggregate of more than 90 years in prison.
Justice Norman Epstein, writing for the Court of Appeal, said the trial judge correctly interpreted Sec. 956.5 as permitting the defense lawyer’s testimony under the circumstances.
The statute provides, among other things, that the attorney-client privilege does not apply “if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.”
Dang’s threats to the witnesses and Smith “clearly” come within the statute, Epstein said, acknowledging that California courts have not previously interpreted the section.
The issue of an exception to the privilege for threats of future violence, Epstein noted, has been debated in California since the Supreme Court’s 1976 +Tarasoff+ ruling holding that a psychotherapist had a duty to disclose that a patient had threatened violence to a third person during a therapy session.
The debate, he suggested, was resolved in 1993 when lawmakers adopted Sec. 956.5, in the process deleting both a proposed requirement that the threat be one of “imminent” harm and a provision that would have granted immunity from liability if a lawyer did not make the disclosure allowed by the statute.
An attorney who makes the disclosure allowed by the statute, the justice added, would not be subject to discipline for failure to “preserve inviolate’ the confidences of the client under Business and Professions Code Sec. 6068(e) because the State Bar Court has held that the obligations of that subdivision are modified by the statutory exceptions to the privilege.
Nor, the justice went on to say, did the fact that the testimony came from Dang’s ex-lawyer make it more prejudicial than probative. “If the Legislature had wished to exclude admissibility of an attorney’s testimony against a former client in this context,” Epstein wrote, “it could have done so by providing in section 956.5 that the attorney could report the threat to authorities, but could not testify against the client in a trial. Instead, the Legislature did not qualify the provision.”
Any possibility of undue prejudice, he added, was obviated by the limiting instruction given by the trial judge.
In an unpublished portion of his opinion, Epstein said Person did not abuse his discretion in ordering Dang shackled during trial. Dang’s threats to kill Smith and the Huynhs, as well as a past conviction for witness intimidation, justified the trial judge’s concern. Epstein said.
Even if the order was erroneous, it was harmless, the justice added, because there was no evidence that any juror saw the restraints or realized the defendant was shackled.
In another unpublished part, Epstein rejected Dang’s claim that the sentence constituted cruel or unusual punishment. He noted that Dang had a history of convictions for increasingly serious offenses and had committed multiple probation violations.
The justice acknowledged that Dang’s sentence was substantially longer than that of a defendant convicted of first degree murder without special circumstances, but said there was nothing unjust about that since “there were multiple serious offenses against multiple vulnerable victims in this case.”
The case is People v. Dang, B145393.
Copyright 2001, Metropolitan News Company