*1 (1989), Ind., (defen- presumption prejudice 539 N.E.2d 959 State rebuttable argue dent testified that he didn’t or be may the error be deemed Grey harmless. did, angry jury come but even if found he (1990),Ind., v. State passion it not evidence of such intense (1988), Ind., v. State Wickliffe might presumed to have obscured his jury 1386. Inasmuch as the could reason); (1985), Ind., Fowler v. State 483 properly guilty only have found Burris (defendant N.E.2d 739 confessed he shot upon presented, murder the evidence it is argument hay decedent because over reasonably likely that the result of the transaction). v. also Sears proceedings would Cf. have been different had Ind., (evidence 494 N.E.2d 1286 open counsel been informed in court of the require voluntary manslaughter verdict jury’s request for a definition of sudden decedent, where who refused to leave de heat. residence, defendant, fendant’s swore at reason, For the same we are convinced fought boyfriend, with defendant’s deprivation the constitutional sus- year kill made threat to defendant one be by beyond tained Burris was harmless homicide). fore impinge upon reasonable doubt and did not The State’s evidence which es rights. his substantial Burris’ final conten- only tablished that the decedent had loud tion, that the trial court committed funda- words with Burris over Burris’ treatment responded error it mental when angry of his niece and that Burris was over jury’s notifying without him of question had com vandalism to car which required communication the manner mitted someone other than the decedent statute, is therefore merit also without insufficient of itself to an in warrant and does not necessitate reversal. manslaughter; voluntary struction post-conviction correctly de- hence, the burden rested with Burris to petition post-conviction Burris’ re- nied produce “appreciable some evidence” of judgment affirmed. lief. That Burris’ sudden heat. version of events possibility excludes the he acted under Judgment affirmed. sudden heat. Where there is no evidence heat, STATON, RATLIFF, C.J., J., of sudden an incorrect instruction on concur. manslaughter voluntary is not reversible (1986), Ind., Hensley

error. See v. State Appellate 1127. N.E.2d counsel unreasonably

therefore did not act when he forego argument, decided to Davis, raised as of trial counsel or and John F. ineffectiveness Gordon HUECK giving as fundamental error in the of an Attorney, Appellants- voluntary manslaughter Defendants, incorrect instruct ion.6 appellate Neither can counsel Indiana, Appellee-Plaintiff. STATE failing argue trial

be faulted for No. 82A010-9106-CR-184. ineffective counsel had been rendered Appeals Court challenged in communications over the First District. jury struction Burris’ and trial between Although parte judge. ex communications April 1992. deliberating judge jury are between Rehearing Denied June prejudicial they presumed to be deny criminal defendant the federal and present right

state constitutional to be stages proceedings, the

all of the criminal outcome, irregularities light Where will not address assistance of counsel. standing of this we error, they appellate do not amount claims of trial and counsel alone Burris’ gain error taken the stature of reversible ineffectiveness as it relates to the omission of cannot together. Grey Ind., heat, N.E.2d v. State definition of sudden or his assertion that cumulatively the errors denied him the effective *2 Office, Bench, In- Bench T. Law

Stuart dianapolis, for Hueck. Gordon Evansville, Canada, F. for John Robert Pearson, Atty. Linley E. Gen. of Gen., Worden, Atty. Deputy Michael Gene Gen., Atty. Indianapolis, for Office State. THE OF CASE

STATEMENT RATLIFF, Judge. Chief (“Hueck”) F. and John Hueck Gordon deny- (“Davis”) from an appeal quash a attorney Davis’s motion to ing against testify him to subpoena issued to charging Hueck in a criminal case Dealing a Schedule II Controlled Substance,1 felony; Conspir- B Class 1. IND.CODE 35-48-4-2.

aey to Deliver a Schedule II Controlled cause numbers 8542 April 2, and 8545. On Substance,2 B felony. Class We affirm. Davis filed a motion to

subpoenas. A third count was filed against Hueck on May 1991. Count ISSUE *3 (3) three of the indictment charged Hueck attorney-client privilege prevent Does the conspiracy with to a II Schedule deliver disclosing Davis identity from controlled substance. One of the overt payer? alleged (3) acts count three April May 1988, on or about paid attorney represent FACTS Davis to Johnson. Davis filed another quash motion to Attorney represented Phillip Davis John- 10, May 1991. (“Johnson”) son in Vanderburgh Circuit Court, cause number The attorney 6756. 16, 1991, May On the trial court entered paid fees for par- Johnson were a third findings of fact and conclusions of law and ty. subsequent grand jury investiga- In a quash denied Davis’s motions to the sub- tion, paid Johnson testified that Hueck had poenas. petition Davis filed a certify attorney fees to Davis. Johnson also interlocutory appeal. accept- We signed a limited waiver as to his jurisdiction 7, ed on October respect represen- to his tation Davis. Record at 197. DISCUSSION AND DECISION 14, 1990, grand jury On December sub- Davis does not contend that his rela poena grand and a jury subpoena duces tionship with prevent Johnson would him ordering attorney tecum were issued Davis identity from of the third appear grand jury before the on Decem- Rather, payer. Davis contends 18, provide ber 1990. Davis was to testi- that his with the third mony and documents the amount constitutes an re and paid source of fees to him to lationship precludes which Davis from re represent Johnson. Davis filed a motion to vealing party. quash subpoenas contending that the attorney-client privilege applies attorney-client privilege prevented him proceedings may in which an “... testifying. An hearing in camera be called as witness or otherwise re- was held on the motion to the sub- quired produce concerning evidence poenas 19, on December 1990. The court Ind. client.” Professional Conduct Rule accepted affidavits from Davis and Hueck addition, 1.6. In IND.CODE 34-1-14-5 questioned and the State Davis. On Janu- following persons states that shall “[t]he 13, 1991, ary Hueck filed a third competent witnesses: Third. Attor- be petition petition to intervene. The to inter- neys, as to confidential communication granted vene was at a second in camera profes- made to them the course of their hearing 18, January held on 1991. At the business, given sional and to such hearing, second it was decided that attorney-client privilege cases.” The estab- apply depositions provision person give lishes a for a com- grand jury proceedings.3 trial as well as the plete and confidential information to an 17,1990, On December Hueck was indict- attorney, may fully so the be ad- charges. ed on various Davis received two vised his services to this client. Colman 422, subpoenas: testify 419, additional one to at a v. Heidenreich deposition and the other trial in the case 868. At the same time it Hueck, of State Indiana v. Gordon assures the client that the confidences will ever, jury subpoenas grand §§ IND.CODE 35-48-4-2 & 35-41-5-2. have not been withdrawn. grand jury 3. The has since returned a three Hueck; against count indictment Gordon how- However, it has hired be revealed. Johnson, privilege prevents attorney fees Davis since the on behalf cautioned that confi- of relevant information the transactions were believed truth, privi However, for the impedes quest dential. Record at 58. Davis narrowly construed. In re lege should not certain whether he related to the (2d Cir.1984), 742 Shargel that he believed Special, September privileged. re fees was (S.D.Ind.1985), (Klein) F.Supp. explained Record at 59. 628; Fisher v. aff'd, 776 F.2d accord if there was a con- States United and the flict interest between Johnson 1577, 48 L.Ed.2d S.Ct. party, responsibility his first *4 “ to Johnson. Record at privilege provides The ‘that when attorney on within is consulted business In an the affidavit of scope profession, communica the the quash, party alleged third motion the him and his subject tions on the between sought regard he had Davis’s that advice ” treated confidential.’ money ing delivery the of for Johnson’s 423, Colman, at Ind. at 269 by fees and harassment law discussed 869, 5 (quoting Jenkinson and matters. enforcement officers other 466). privilege applies The Blackf. Further, at 80. the Record third attorney the to an for all communications that him the at stated Davis advised that obtaining professional legal ad purpose of prevented Davis torney-client privilege regarding rights aid the and vice or client’s delivery disclosing of the fees. from liabilities. Record at Neither affidavit revealed attorney-client that the Davis contends payer sought aid or that the third fee prevents revealing him the privilege from for the matter in which the fee was advice party’s identity the time of third because at the paid. Davis’s mistaken assertion that fees, sought payment the of the third attorney-client privilege prevented communica- legal advice and confidential of a third Thus, were to reveal the tions revealed. enough. Nor third payer not is the party’s identity arrange- or third the fee sought he ad party’s bare assertion of ment to reveal the substance delivery of vice communications. State the confidential relationship attorney-client does fees. attorney-client privilege counters that no gain only purpose is to not exist where its party. and existed Davis between confidentiality to use for the third or mere conduit for the grant deny a as a A trial court's decision Jury subpoena money. re of In re payment will be Grand motion (Hirsch), It 803 F.2d at 499. Subpoenas for In re viewed an abuse discretion. (Hirsch) (9th Cir. be inferred from evidence Jury Subpoenas could Grand 493, 496; 1986), Jury relationship between Davis and In re F.2d Grand (5th payer-payee and not Cir. was as Subpoena Reyes-Requena [I] denied, attorney-client. The trial did not err 1990), 913 F.2d cert. - -, concluding attorney-client no rela 113 in S.Ct. existed, party fee person tionship since the third is the L.Ed.2d 646. It burden See, not his burden. asserting attorney- payer has sustained privilege show an exists, (Pavlick) Jury Proceedings relationship that a confi In re Grand and Cir.1982), (Rubin, (5th 680 F.2d communication involved. Col dential Randall, J., Clark, con man, J. and joined 381 N.E.2d at 869. J. Ind. at (even sought curring result) if fee Here, John represent hired Davis was attorney’s client attorney’s legal advice and became At two of the three son. least matters, that not estab regard to some payments Davis were made mat attorney’s he client for the party. camera lish was In an affidavit for in paid). examination, time for which the fee Davis stated that at the ters also, Colman, Assuming arguendo that an attor see ney-client 427-28, (client’s existed between identi- party, ty). Further, Davis it is still neces whether the information sary to sought establish communications privileged is a communication does privileged. argues that iden depend the disclosure of tifying party payer or the the information has incriminated client. attorney-client violates the Special Matter Witnesses Before party sought Jury, Grand F.2d at confidential communica Davis and the third contend pay tions were revealed at the time the fact situations Matter Grand ment of the fees. (7th Cir.1990), Jury Proceedings, Cherney rule, As re 898 F.2d In re Jury Sub- garding pro client’s fees is not poena, (5th Cir.1991), Reyes-Requena [II] tected be are similar to the case at cause the fees is considered bar, thus, dispositive. disagree. We a confidential communication between at Cherney and Reyes-Requena [II] torney and client. Matter Witness Be the courts found that there an attor- Special March 1980 Grand *5 fore ney-client relationship with the third Cir.1984), Likewise, 729 F.2d the prior to the time the were is- usually identification a client is not con Moreover, in sued. district cases the Colman, privileged sidered information. the court found and circuit court affirmed 269 at 871. Ind. at that in camera documents submitted were sufficient fee

As Davis and third to establish that the the cor out, sought rectly legal from the re- point developed courts advice have exception garding charges. general Identity potential to the or the criminal As rule. explained arrangements may privileged the attor- Reyes-Requena [II], be where identity ney the party’s the third or the could claim for third arrangement party only demonstrating would tantamount a connection be attorney’s the disclosure of a fees and the confidential communicat between client’s the third Special purpose ion.4 Matter confidential which Witnesses Before attorney’s Jury, party sought legal F.2d at 491- advice. Id., (discussion agree of other circuits in at 1433. The can demonstrate ment); also, Colman, only by revealing 269 Ind. at this that the see 427- connection concerning (client’s identity 381 N.E.2d at 871 consulted had very so which the client been privileged where much has matter for important to note divulged regard legal charged. It is also services Cherney and sought Reyes-Requena the advice that to re that in both rendered or identity of the third veal client’s name would be to disclose [II] however, unknown; here, has re- Johnson whole and confidential commu nications). told Hueck that identity Whether or fee vealed that he was client’s privileged depends care” of arrangement on the would “take his “ fees. Record ‘Information facts of each case. In re Grand (Jones) (5th Cir.1975), appears likely less known client’s fees far Proceedings cases, exception general Pavlick, Similarly, applying in a see 4. A to the rule. few few cases refer Jones, implicating at 1027 and F.2d at when would result in 680 F.2d disclosure excep- very activity applied link criminal for which he the courts have the last in the applies legal E.g., Hodge exception sought advice. States v. tion. The to the rule United Cir.1977) identity (9th Zweig & but when the disclosure the client’s 548 F.2d Cir.1983) (9th e.g., supply last link chain of in- see re Osterhoudt 722 F.2d would in the In likely (criticizing Hodge Zweig criminating lead to the for formu- evidence that is & Pavlick, principle at 1027. lating exception client’s not in terms itself indictment. exception interpretation does example excep- but in terms of an where This narrow rather likely apply). apply has al- not case because Hueck tion is The third incor- this rectly ready this as a been indicted. cites second tial trial to reveal a communication than communication. We find that the would revelation of an unknown client’s its in re- did not abuse discretion ” identity.’ F.2d at 568. Chemey, 898 fusing subpoenas. bar, In the the trial court case argues subpoe Davis also correctly the information re found oppressive nas are and unreasonable be identity garding party’s and the sought cause is cumulative arrangement not disclose a confi would jury testimony. grand of Johnson’s We do Davis’s affidavit dential communication. agree. necessarily Information is not allege party sought does not oppressive or unreasonable similar party’s concerning rights advice gleaned another evidence can be regarding and liabilities the matter which source. Ind. See Stone rather, charged; the “... Johnson but App., denied trans. paying transactions of were confi [Davis] (relevant rejected evidence will sim be Likewise, dential.” at 59. Record ply because it is unless it cre cumulative sought party’s states that he affidavit parade of prejudice, ates undue such as a delivery offering testimony). witnesses consistent at 79. The third fees for Johnson. Record and the con- Finally, Davis allegation party also that he makes a broad reasonably tend that Hueck believed discussed other confidential matters with identity arrangement and the fee would Id. The third has failed to confidential, therefore, showing meet his burden of They rely apply. should the fee Cir.1924), States Smale v. United convey a confidential communica position. their sought tion. the information Smale, in dicta the Seventh Circuit stated *6 subpoenas merely the source and was made under an erroneous statements the amount of fees This Davis. impression an relation- attorney-client request limited of information does not con protected. Id., ship should be at exists stitute communication. fundamentally from the different Smale simply Davis and assert First, respects. in ease bar in two Sma- conclusions, unsupported they but have referring to a situation le court was any presented to this court or in the facts was where a confidential communication camera to meet their affidavits burden Second, made. the Smale establishing requested of informa good faith but erroneous belief had a privilege. tion comes within See provide Hirsch, (affidavits hiring that he 803 F.2d at 497-98 applying representation. The rationale for fee-payer sought personal legal not show any exist here no confi- underlying connection with Smale does not drug conspiracy lawyer’s one made case where dential communication was ever affidavit stated that

attorney had ongoing relationship requested subpoenas in the necessary obtaining the other’s he and the third in- stated not a matters); advice, discussed various re Oster formed which the (9th Cir.1983), protect. houdt privilege seeks to See Fish- (substance er, confidential communications S.Ct. at would not be revealed disclosure of We find the trial court L.Ed.2d at 51. payments); amounts and dates refusing did not its discretion abuse cf. (client Reyes-Requena [I], F.2d at 1126 subpoenas to Davis. issued attorney-client to in referred assertion Affirmed. for whom attor was the client ney’s fees paid). ROBERTSON, J., concurs. protects identity only in a client’s HOFFMAN, J., separate dissents with limited circumstances where disclosure convey opinion. substance of a confiden- HOFFMAN, Judge, dissenting. parties such, tween the and as protect- are Therefore, ed. issued respectfully I dissent. The affidavits of quashed. Davis and Hueck state that a discus- sion was had on the payment representation

fees for the par- another

ty confidential. Davis avers that he

“conveyed message impression

TPC that the transactions of his [Hueck]

paying me confidential,” these fees were and Hueck states that Davis advised that BRANE, Richison, Paul H. Kenneth of fees would be confidential. Dawes, Ralph Thompson, John et information, Based on that provided al., Appellants-Defendants, payment services. v. incompetent Indiana’s statute on witness- ROTH, al., Appellees- Porter E. et specifically provides es attorneys shall Plaintiffs. competent “as witnesses to confi- No. 52A02-9102-CV-501 . dential communications made to them in professional business, the course of their Appeals Court of given and as to advice in such cases.” First District. (1991 IND.CODE Supp.) 34-1-14-5 Sim- ilarly, long Indiana April case law has held “that when an is consulted on business Rehearing Denied June scope within the profession, the com- subject munications on the between him

and his client strictly should be treated as

confidential.” (1978), v.

Colman Heidenreich

Jenkinson Blackf.

466;

Borum v. Fouts Ind. 50. *7 requested legal

Hueck advice from Davis confidentiality paying le-

gal person. provid- fees for another

ed this advice in course of his

professional Subsequently, business. fees. This whole part

transaction occurred of the confi- protected

dential communications be- Hueck and

tween analysis,

Under above rule in federal law that a

third-party’s identity arrange- or the fee

ment would to the disclo- be tantamount ap-

sure confidential communication is

plicable. Spe- Matter Witnesses Before cial 1980 Grand Cir.

1984), Certainly, 729 F.2d 489. Hueck’s and fee with Davis confidential communications be- Judge February

1. This case was transferred to this office of the Chief