Akinribade v. State

• Decision Date: 27 January 2023
• Docket Number: Court of Appeals Case No. 22A-CR-1757
• Parties: Akinfemiwa AKINRIBADE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

202 N.E.3d 468

Akinfemiwa AKINRIBADE, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 22A-CR-1757

Court of Appeals of Indiana.

Filed January 27, 2023

Attorney for Appellant: John (Jack) F. Crawford, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General, George P. Sherman, Supervising Deputy Attorney General, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Akinfemiwa Akinribade was charged with rape and provided a DNA sample that was sent to the State's crime lab for testing. In this appeal, he challenges the trial court's order to disclose his expert's summary of the State's lab report. We conclude that Akinribade waived any objection to the disclosure of the one page of the summary that he introduced into evidence at a deposition of the State's DNA analyst, but that the State failed to make the requisite showing of either substantial need or exceptional circumstances to justify the disclosure of the remaining pages of the summary under Indiana Trial Rule 26(B). Accordingly, we affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] In August 2021, Akinribade was charged with rape and provided a DNA sample that was sent to the local crime lab for testing. Crime lab DNA analyst Amanda Wilson generated a DNA profile from that sample and compared it with DNA profiles generated from samples from the alleged victim's sexual assault kit, and she compiled a report of her findings. Akinribade obtained a copy of the report and retained an expert who prepared a seven-page "Consultation Summary" of the report. Appellant's App. Vol. 2 at 175.

[3] In June 2022, Akinribade deposed Wilson. During the deposition, Akinribade handed Wilson the consultation summary's third page, which was entered into the record as Defendant's Exhibit B, and questioned her about it. After the deposition, the State filed a motion for discovery requesting disclosure of the entire summary, among other things. The trial court granted the State's motion without a hearing.

[4] Akinribade filed a motion to reconsider, in which he acknowledged that the State is "entitled to reports and identities of any expert witnesses that [he] intends to call as witnesses at a trial or hearing[,]" but he stated that he did not intend to call any expert witnesses other than Wilson. Id. at 69. He also argued that his expert's consultation summary is protected by the work-product privilege. At a hearing on the motion, the State argued that Akinribade waived the privilege with respect to the entire summary by introducing the single page into evidence at Wilson's deposition. The trial court agreed with the State, and Akinribade now appeals.

Discussion and Decision

[5] "Trial courts have broad latitude with respect to discovery matters, and their rulings receive great deference on appeal." Sisson v. State , 985 N.E.2d 1, 14 (Ind. Ct. App. 2012), trans. denied (2013). "Our standard of review in discovery matters is abuse of discretion." Williams v. State , 819 N.E.2d 381, 384 (Ind. Ct. App. 2004), trans. denied (2005). "Thus, we will reverse only where the trial court has reached an erroneous conclusion which is clearly against the logic and effect of the facts of the case." Id.

[6] Our supreme court has explained that "Indiana's discovery rules are designed to permit ‘liberal discovery’ in order to provide the maximum amount of information possible to both parties as they prepare their cases and reduce the possibility of surprise at trial." Minges v. State , 192 N.E.3d 893, 897 (Ind. 2022) (quoting State ex rel. Keller v. Crim. Ct. of Marion Cnty., Div. IV , 262 Ind. 420, 426, 317 N.E.2d 433, 437 (1974) ). "The Trial Rules govern discovery and, as incorporated by Indiana's Criminal Rules, ‘apply to all criminal proceedings so far as they are not in conflict with any specific rule adopted by this [C]ourt for the conduct of criminal proceedings.’ " Id. (alteration in Minges ) (quoting Ind. Criminal Rule 21 ).

[7] Indiana Trial Rule 26(B) governs scope of discovery and reads in pertinent part as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party ....

....

(3) Trial Preparation: Materials.Subject to the provisions of subdivision (B)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (B)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

....

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (B)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

....

(b) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(B)^[1] or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means [.]

(Bold emphases added.)

[8] Akinribade argues that the consultation summary of his expert, who is not expected to be called as a witness at trial, is not discoverable because the State failed to make the requisite showing of either substantial need or exceptional circumstances under Trial Rule 26(B) and that, in any event, the summary is protected by the work-product privilege. "The purpose of the privilege is to protect the mental impressions and legal theories of attorneys and their clients." Outback Steakhouse of Fla., Inc. v. Markley , 856 N.E.2d 65, 78 (Ind. 2006). It "protects materials prepared by agents for the attorney as well as those prepared by the attorney himself." State ex rel. Keaton v. Cir. Ct. of Rush Cnty. , 475 N.E.2d 1146, 1147 (Ind. 1985), overruled on other grounds by Minges , 192 N.E.3d 893.

[9] The State does not challenge Akinribade's claim that the consultation summary is work product, but it argues that he waived the corresponding privilege with respect to the entire summary "the moment [he] introduced the report during the deposition and provided a copy to the testifying witness." Appellee's Br. at 9. The work-product privilege "is a qualified privilege and, as such, may be waived." Spears v. State , 272 Ind. 647, 650, 403 N.E.2d 828, 830 (1980) (citing United States v. Nobles , 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) ), superseded by rule on other grounds. What constitutes a waiver depends on the circumstances. Nobles , 422 U.S. at 240 n.14, 95 S.Ct. 2160.

[10] We agree with the State that Akinribade waived any privilege with respect to page three of the summary by introducing it into evidence at Wilson's deposition—at that point, its contents were disclosed to the State, so that particular bell cannot be unrung. But as for the remaining six pages of the summary, we agree with Akinribade that the State failed to make the requisite threshold showing of either substantial need or exceptional circumstances under Trial Rule 26(B), and thus we do not even reach the question of whether Akinribade waived the work-product privilege.

[11] The State directs us to Indiana Evidence Rule 501(b), which states in pertinent part, "Subject to the provisions of Rule 502, a person with a privilege against disclosure waives the privilege if the person or person's predecessor while holder of the privilege voluntarily and intentionally discloses or consents to disclosure of any significant part of the privileged matter." Evidence Rule 502(a) provides,

Intentional Disclosure; Scope of a Waiver. When a disclosure is made in a court proceeding and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information only if:

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern the same subject matter; and

(3) they ought in fairness to be considered together.

The State argues,

Here, the intentional disclosure was made when Akinribade entered page 3 of his report into the record as Defense Exhibit B and provided a copy to [Wilson]. This occurred during a deposition in this cause (i.e., court proceeding). Although ... Wilson was not testifying at trial when he disclosed the report to her, the text of Evidence Rule 502 does not limit its application to only disclosures made during trial testimony.

Appellee's Br. at 10. The State further asserts, "Akinribade's proffered report contained various observations about [Wilson's] lab report. By disclosing the author of the report's observations, Akinribade thus opened the door for the provision of the complete context of those observations." Id. at 11 (citation and quotation marks omitted).

[12] We note that the State cites no authority to support its assertion that a deposition is a court proceeding for purposes of Evidence Rule 502(a), and we leave that question for another day. We further note that both the State and the dissent...