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State v. Dixon6/3/2005
in the DNC offices. About an hour later, Hunt called Liddy. Hunt and Caddy explained to Liddy what they had done to retain an attorney for the burglars. "During this conversation, Liddy indicated that he desired to have Caddy represent him in this matter." 509 F.2d at 443. In closing arguments, the government emphasized the unusual hour at which Liddy retained counsel. The trial court instructed the jury that it "could draw no adverse inferences from the fact that Liddy retained counsel but could 'consider the time and other surrounding circumstances at which Mr. Liddy retained Mr. Caddy with respect to the state of mind of Mr. Liddy only.'" 509 F.2d at 443. Basing his allegation of error on Griffin v. California, 380 U.S. 609, Liddy argued on appeal "that allowing the jury to draw inferences of guilty knowledge from his efforts to obtain counsel imposes a penalty on the exercise of his Sixth Amendment rights." 509 F.2d at 443. The District of Columbia Circuit Court of Appeals approved the first part of the instruction that prohibited drawing adverse inferences from Liddy's retaining counsel. 509 F.2d at 443-44. The court stated:
"To the extent that an inference of criminality is operative, it invites probing of the very process of selection of counsel--who, why, when and where--and pressing the defendant to come forward with evidence concerning this process. The mischief of the approach is underlined by its semantic subtleties, which opens the door to maneuver and misunderstanding. It would be a rare case indeed where the prosecutor could not point out that the incriminating feature of the employment of counsel--in the absence of explanation--rests not in the employment as such but in the time and circumstances surrounding that event, and inferences therefrom that reflect adversely on the defendant." 509 F.2d at 444.
In the circumstances of the Liddy case, however, the Court of Appeals concluded that the error was harmless beyond a reasonable doubt. The court reasoned that
"the effect of the error was mitigated by the fact that evidence of part of Liddy's 5:00 a.m. conversation with Caddy was clearly admissible to show Liddy's involvement in his action of retaining counsel for those arrested during the break-in. His assertion of a right to Sixth Amendment protection against any use of his statements to obtain counsel for himself certainly does not prohibit inquiry into portions of his conversation with Caddy relating to his action in obtaining counsel for others. This evidence of Liddy's efforts on behalf of the five defendants only a few hours after their arrest was probative of his involvement in their venture." 509 F.2d at 445.
In Hunter v. State, 82 Md. App. 679, 573 A.2d 85 (1990), defendant Hunter, after causing a fatal vehicle accident, went to a nearby house to call 911. He also contacted his attorney. In a non-responsive answer to defense counsel's questioning, a state trooper mentioned that defendant called his attorney. When defendant testified, the prosecutor referred back to the officer's testimony and asked Hunter if he had called his lawyer and then asked him why he called his lawyer. Defense counsel's objection was overruled, and Hunter answered, "'To see if he would defend me.'" 82 Md. App. at 684. The prosecutor followed up with this question, "'And the reason you called your lawyer to see if he would defend you is because you were riding down the road with at least a .15 percent ethyl alcohol percentage weight in your blood stream, and you weren't paying attention to your driving, isn't that correct?'" Hunter answered, "'No.'" 82 Md. App. at 684. The prosecutor concluded his closing argument as follows:
"'I suggest to you Mr. Hunter was
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