Such a witness must have had an adequate opportunity to observe the defendant on occasions near the time of the crime. Underwood v. State, 553 S.W.2d 869, 871 (Mo. Ct. App. 1977). Smith v. State, 502 S.W.2d 814, 817 (Tex.Crim.App. 1973).
Appellant's final point is that the court erred in sustaining the objection of the State to testimony of Betty Cason, appellant's adoptive mother, "as to her knowledge of Appellant's mental condition," and "as to her knowledge of [his] ability to premeditate." He relies on Underwood v. State, 553 S.W.2d 869 (Mo.App. 1977), but he does not cite to us the page in the transcript where the ruling can be found. From our study of the transcript it appears that appellant has reference to the court's ruling in sustaining an objection to the following question: "Q.
Testimony by an attorney merely stating his observation of the client's mental condition, as distinguished from disclosure of any private communications, does not violate the attorney-client privilege. Underwood v. State, 553 S.W.2d 869, 871[1] (Mo.App. 1977). This court holds that the challenged testimony was not protected by the attorney-client privilege because of the presence of defendant's daughter.
" Randazzo v. Polizzi, 366 S.W.2d 380, 385 (Mo. 1963). Also see Underwood v. State, 553 S.W.2d 869 (Mo.App. 1977). It is significant that the wife prevented inquiry concerning whether or not she relied upon her attorney. It is the general rule that in the absence of extraordinary circumstances a representation of law cannot be the basis of actionable fraud.
See Darrow v. Gunn, 594 F.2d 767, 774 (9th Cir.), cert. denied, 444 U.S. 849, 100 S.Ct. 99, 62 L.Ed.2d 64 (1979); Malinauskas v. United States, 505 F.2d 649, 655 (5th Cir. 1974); Clanton v. United States, 488 F.2d 1069, 1070-71 (5th Cir.), cert. denied, 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 116 (1974); United States v. Tom, 340 F.2d 127, 128 (2d Cir. 1965); United States v. Kendrick, 331 F.2d 110, 113-14 (4th Cir. 1964); Howell v. United States, 282 F. Supp. 246, 250 (N.D.Ill. 1968), aff'd, 442 F.2d 265 (7th Cir. 1971); Bishop v. Superior Court, 150 Ariz. 404, 724 P.2d 23, 29-30 (1986); People v. Bolden, 99 Cal.App.3d 375, 160 Cal.Rptr. 268, 270 (1979); Jones v. District Court, 617 P.2d 803, 807-08 (Colo. 1980); State v. Jensen, 286 Minn. 65, 174 N.W.2d 226, 230 (1970); Underwood v. State, 553 S.W.2d 869, 871 (Mo.Ct.App. 1977); People v. Kinder, 126 A.D.2d 60, 512 N.Y.S.2d 597, 599-600 (1987). But see Gunther v. United States, 230 F.2d 222, 223 (D.C. Cir. 1956) (Although the Gunther court held that attorney testimony on competence would violate the privilege, this rule may have been overruled in United States v. David, 511 F.2d 355, 360 (D.C. Cir. 1975), in which the court noted that an attorney's input on competency of his client would be very useful, and that the trial court should have inquired further concerning the defendant's competence in light of defense counsel's "misgivings" concerning his client's competence.).
, People v. Hudson, 19 N.Y.2d 137, 140, supra; People v. Wright, 105 A.D.2d 1088; People v. Weech, 105 A.D.2d 1085, 1087, supra), no New York court has discussed the question whether counsel may do so when the client asserts his attorney-client privilege. Federal courts and courts in other States have considered the question and have concluded that testimony by an attorney concerning the competency of his client to stand trial is not precluded by assertion of the privilege (see, Darrow v. Gunn, 594 F.2d 767 [9th Cir 1979], cert denied 444 U.S. 849; Malinauskas v. United States, 505 F.2d 649 [5th Cir 1974]; Clanton v. United States, 488 F.2d 1069 [5th Cir 1974], cert denied 419 U.S. 877; United States v. Tom, 340 F.2d 127 [2d Cir 1965]; United States v Kendrick, 331 F.2d 110 [4th Cir 1964]; Howell v. United States, 282 F. Supp. 246 [ND Ill 1968], affd 442 F.2d 265 [7th Cir 1971]; Bishop v. Superior Ct., 150 Ariz. 404, 724 P.2d 23; People v. Bolden, 99 Cal.App.3d 375, 160 Cal.Rptr. 268; Underwood v. State, 553 S.W.2d 869 [Mo Ct App 1977]; State v. White, 1 NC App 219, 161 S.E.2d 32). Sound reasons support the conclusion reached by these courts. Because the assertion of the attorney-client privilege "`constitutes an "obstacle" to the truth-finding process * * * [its] invocation * * * should be cautiously observed to ensure that its application is consistent with its purpose.'"
Counsel for the defendant on the plea proceedings testified on the postconviction trial that the defendant Parker disclosed to him that he had received money from both Clark and Kramer. The movant testified, on the other hand, that he could not remember whether the money came from both or only one. We do not pass on the propriety of disclosures by employed counsel of private communications from the client in the course of the professional relationship to dispute the later contentions of the erstwhile client which do not impugn the professional conduct of the former attorney so as to waive the privilege of the communication [ Lansdown v. State, 472 S.W.2d 342, 346[3] (Mo. 1971); Jackson v. State 540 S.W.2d 607, 610[10] (Mo.App. 1976)] nor which are matters of ordinary observation, and so open to lay testimony [ Underwood v. State, 553 S.W.2d 869, 871[2, 3] (Mo.App. 1977)]. The movant was indicted and convicted for the sale of a controlled substance under § 195.020, RSMo Supp. 1975. A sale by the definition of § 195.010(30) of the Narcotic Drug Act includes