631 P.2d 46 (Cal. 1981)
Defendants Frank Earl Scott and Michael Meredith appeal from convictions for the first degree murder and first degree robbery of David Wade. Meredith’s conviction rests on eyewitness testimony that he shot and killed Wade. Scott’s conviction, however, depends on the theory that Scott conspired with Meredith and a third defendant, Jacqueline Otis, to bring about the killing and robbery. To support the theory of conspiracy the prosecution sought to show the place where the victim’s wallet was found, and in the course of the case this piece of evidence became crucial.1
On the night of April 3, 1976, Wade and Jacqueline Otis entered a club known as Rich Jimmy’s. Defendant Scott remained outside by a shoeshine stand. A few minutes later codefendant Meredith arrived outside the club and told Scott he planned to rob Wade, asking Scott to go into the club, find Jacqueline Otis, and ask her to get Wade to go out to Wade’s car parked outside the club. When Wade and Otis did go out to the car, Meredith attacked Wade from behind. After a brief struggle two shots were fired, Wade fell, and Meredith ran from the scene. Scott went over to the body, picked up the bag containing beer that Wade and Otis had left, and later took it home where Otis and Meredith joined him.2
More than a month after the crime, Scott’s first appointed attorney James Schenk visited Scott in jail and solicited information about the murder. In response Scott told Schenk that he had seen a wallet as well as the paper bag on the ground near Wade, that he picked up the wallet, put it in the paper bag, and placed both behind a parking lot fence, that he later retrieved the bag, found $100 in the wallet and divided it with Meredith, tried to burn the wallet in his kitchen sink, placed the partially burned wallet in a plastic bag, and threw it in a burn barrel behind his house.3
Schenk retained Investigator Stephen Frick and sent Frick to find the wallet. Frick found it in the location described by Scott and brought it to Schenk. After examining the wallet and determining that it contained credit cards with Wade’s name, Schenk turned the wallet and its contents over to Detective Payne.4 The prosecution subpoenaed Attorney Schenk and Investigator Frick to testify at the preliminary hearing.5
At the preliminary hearing Schenk initially refused to answer questions on the ground that he learned about the wallet through a privileged communication. Under threat of contempt, however, he confirmed that his contact with Scott was the sole source of his information as to the wallet’s location. Frick then testified that he found the wallet in a garbage can behind Scott’s residence.6 Prior to trial a third attorney was appointed for Scott and unsuccessfully sought an in limine ruling that testimony concerning the wallet by Schenk or Frick was inadmissible. At trial Frick, called by the prosecution, testified that he found the wallet in a garbage can behind Scott’s residence.7
The jury found both Scott and Meredith guilty of first degree murder and first degree robbery. Both defendants appealed from their convictions to the Supreme Court of California after the Court of Appeal had addressed their remaining contentions.8
Whether the attorney-client privilege protects an investigator's observation of the location of physical evidence when the observation is the product of a confidential communication from the client?9
Evidence Code section 954 protects confidential communications between client and lawyer during the course of the attorney-client relationship.10 The privilege extends beyond the initial communication to encompass observations made by counsel or an investigator as a direct result of that protected communication. This extension follows because the fundamental purpose of the privilege is to encourage full and open disclosure by the client without fear that the attorney may be forced to reveal the information confided.11
Yes. Scott's statements to Schenk regarding the location of the wallet clearly fulfilled the statutory requirements for a confidential communication under Evidence Code section 954.12 Schenk's disclosure of that information to investigator Frick was reasonably necessary to accomplish the purpose for which Schenk had been consulted, so the disclosure did not waive the privilege under Evidence Code section 912, subdivision (d).13 Frick's observation of the wallet in the garbage can behind Scott's residence was the direct product of the privileged communication from Scott to Schenk, and therefore the observation itself receives the same protection as the communication.14
The attorney-client privilege protects an investigator's observation of the location of physical evidence when the observation is the product of a confidential communication from the client.15
Whether the attorney-client privilege is lost with respect to the original location of physical evidence when defense counsel removes the evidence from that location?16
When defense counsel removes or alters physical evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence.17 This exception is required because removal by the defense necessarily deprives the prosecution of the opportunity to observe the evidence in its original condition or location. Extending the privilege in such circumstances would permit the defense to destroy critical information and encourage a race to seize evidence.18
Yes. Schenk retained Frick and sent him to retrieve the wallet from the burn barrel behind Scott's house after Scott described its location in a privileged communication.19 Frick found the wallet in the garbage can and brought it to Schenk, who examined it and turned it over to Detective Payne.20 By removing the wallet, the defense investigator frustrated any possibility that the police might later discover it in the trash can.21
The conduct of the defense thus precluded the prosecution from ascertaining the crucial fact of the location of the wallet, so the prosecution was entitled to present Frick's testimony concerning that location.
The attorney-client privilege is lost with respect to the original location of physical evidence when defense counsel removes the evidence from that location, and the trial court did not err in admitting the investigator's testimony.22