Citation. Clark v. State, 296 Ga. 543, 769 S.E.2d 376, 2015)
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Brief Fact Summary.
The Appellant, Clark (the “Appellant”), was convicted of murder and sentenced to death for shooting his ex-wife with a .38 caliber revolver. The victim was killed in her bed at home.
Synopsis of Rule of Law.
Evidence relevant to an issue may be admissible over attorney client privilege even if it was obtained through eavesdropping by a third party.
Facts.
The Appellant was convicted of murdering his ex-wife and sentenced to death. The deceased was killed by a gunshot wound from a .38 revolver at home in her bed. The Appellant’s former step-daughter testified that she awoke the night of the murder and saw the Appellant standing by her bed. He asked her for help in persuading her mother to come back to him, and she saw that he was carrying a pistol. Tomas Menchaca (“Mr. Menchaca”) testified that he was with the Appellant throughout the night of the murder. Mr. Menchaca’s testimony showed that the Appellant did visit the deceased’s home and that he was carrying pistols throughout the night. He also identified the knife found in the deceased’s home as belonging to the Appellant. A telephone operator in the City of San Angelo testified that she overheard a phone conversation between the Appellant and his lawyer. During the conversation, the Appellant stated “Well, I killed her.” The Appellant testified that he did not remem
ber the events of that night because he was emotionally upset.
The Appellant also made a motion for rehearing arguing that there should have been an affirmative charge to the jury on temporary insanity, and the trial court should have submitted to the jury the question of whether Mr. Menchaca was an accomplice.
Issue.
Did the court err in admitting the testimony of the telephone operator because the conversation she overheard was attorney-client privileged?
Did the trial court err in not charging the jury that Mr. Menchaca was an accomplice witness as a matter of law?
Held.
Judge Morrison issued the opinion for the Texas Court of Criminal Appeals in holding that the trial court properly admitted the evidence of the telephone operator.
The witness was not an accomplice as a matter of law, and the court did not err in refusing to submit the issue to the jury.
Discussion.
The conversation between the Appellant and his attorney was not in the usual course of preparing a legal defense. The Appellant was not seeking legitimate advice worthy of protection under the facts in this case.
