A prosecutor's rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade. Included within the deceptive or reprehensible methods that constitute prosecutorial misconduct are personal attacks on the integrity of opposing counsel.
On October 3, 1988, Aissa Marie Wayne and her friend Roger Luby were brutally assaulted by two men. Four men were arrested, including defendant Thomas Gionis, Wayne's former husband. At defendant's trial, the prosecutor argued that Wayne and defendant had been locked in a bitter custody battle over their young daughter, Anastasia, and that defendant was behind the assault. John Leuck, an attorney, was permitted to testify for the prosecution that defendant had told him, among other things, that Wayne had no idea how easy it would be for defendant to hire someone to "really take care of her," and that if defendant were to do something, he would wait until an opportune time to act in order to avoid suspicion. The jury convicted defendant of conspiracy to commit an assault, conspiracy to commit a trespass, assault with a deadly weapon on Luby, and assault with a firearm on Wayne. Defendant was sentenced to an aggregate term of five years in state prison. The Court of Appeal reversed defendant's convictions. It determined that the trial court prejudicially erred in admitting the evidence of defendant's statements to Lueck in derogation of the attorney-client privilege, even though the statements were made after Lueck had explicitly refused to represent defendant in the legal proceedings involving Wayne. The court also found that defendant was prejudiced by the prosecutor's misconduct and improper disparagement of defense counsel in closing arguments.
Were the defendant's communications with John Lueck protected by the attorney-client privilege? Moreover, did the prosecutor's arguments constitute prejudicial misconduct?
The Court held that there was sufficient evidence to support the trial court's determination that no attorney-client relationship existed between defendant and the attorney at the time of defendant's incriminating statements. Defendant had asked the attorney to come to his home because he was upset over having been served with dissolution of marriage papers, but, before defendant made any incriminating disclosure, the attorney unequivocally refused to represent defendant in the dissolution proceedings. According to the Court, the attorney-client privilege does not extend to disclosures made after the attorney refuses to undertake representation; a person could have no reasonable expectation of being represented by an attorney after such a refusal is explicitly made. The Court also held that the trial court acted well within its broad discretion under Evid. Code, § 352, in concluding that the potential for prejudice from the attorney's testimony was outweighed by its probative value. The Court further ruled that the Court of Appeals erred in reversing defendant's convictions on the basis of prosecutorial misconduct during rebuttal argument, since, taken in context, nearly all of the challenged remarks properly served to remind the jury of its duty to render a decision based on the evidence and nothing else, and any possible misleading effect of the one clearly improper remark was adequately addressed by admonitions by the trial court.