In re Grand Jury Case

• Decision Date: 01 June 1995
• Docket Number: 93CA10,93CA12,93CA09,95-LW-3820
• Parties: IN RE GRAND JURY Case
• Court: Ohio Court of Appeals

IN RE GRAND JURY

No. 93CA09, 93CA10, 93CA12.

95-LW-3820 (4th)

Court of Appeals of Ohio, Fourth District Washington

June 1, 1995

David Bodiker, Ohio Public Defender, and Pamela Prude-Smithers and Randy D. Ashburn, Assistant Public Defenders, Columbus, Ohio and Janet A. Fogle, Assistant Public Defender, Marietta Ohio, for Appellant, Michael Elkins.

Wallace & Warner Co., L.P.A., Roger Warner, Columbus, Ohio, and James F. Dunn, Marietta, Ohio, for Appellant, Sam Metz.

James F. Dunn, Marietta, Ohio,Appellant Pro Se.

Alison L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio for Appellee, State of Ohio.

DECISION

Stephenson J.

This is a consolidated appeal of various judgments entered by The Washington County Court of Common Pleas with regard to the conduct of certain proceedings before the Washington County Grand Jury Appellant, Michael Elkins, assigns the following errors for our review:

I. "Communications between appellant Mike Elkins and Attorney James Dunn are protected under the Attorney-Client privilege."

II. "The tape recording of conversations between Appellant Elkins and his attorney for the benefit of the Prosecutor was so outrageous that it violated Appellant Elkins' right to Due Process under the Fifth, Ninth and Fourteenth Amendments to the United States Constitution."

III. "The tape recordings made by Attorney James Dun [sic] are protected under the Work Product Doctrine."

The following assignments of error are then posited by appellant, James Metz.

I. "The decision of the lower court overruling the assertion of the Work Product privilege is in error in that it is based on a finding that the information is not sought for use against Mr. Metz and that finding is not supported by the evidence."

II. "The decision of the lower court overruling the assertion of the Work Product privilege is in error in that it is based on a finding that the information is not otherwise available and that finding is not supported by the evidence."

III. "The decision of the lower court is in error in that the Work Product privilege is applicable in this action."

IV. "The decision of the lower court is in error in that, even if the Work Product privilege is determined not to be applicable, the lower court's decision does not set out with sufficient particularity the exact information that must be provided."

V. "The lower court erred in refusing to consider [Appellant's] request that it enforce the plea agreement made between the [Appellant] and the State."

VI. It is a violation of the right of counsel and due process under the constitutions of both the United States and Ohio in regard to the Appellant, Sam Metz, for the court below to order the disclosure of a tape recorded statement to a defense attorney by a witness during the attorney's preparation for litigation."(fn1)

Appellant, James Dunn, then advances the following assignment of error for our consideration:

"The trial court erred by ordering compliance with its order to produce the information sought by the State prior to appellate review and finding Appellant in contempt for failing to comply with that order."

The cause sub judice emanates from a complicated array of proceedings which transpired in the court below and, accordingly, we present here only an abbreviated summary of the facts pertinent thereto. Additional facts will be discussed when necessary for resolution of a particular assignment of error. The record reveals that this case stems from the October, 1992, killing of Mr. Luther Perdue in Washington County, Ohio. On October 29, 1992, Metz was charged with being a delinquent child (under R.C. 2151.02) in that he was supposed to have committed the aggravated murder of Mr. Perdue (in violation of R.C. 2903.01) as well as aggravated robbery (in violation of R.C. 2911.01) and aggravated burglary (in violation of R.C. 2911.11). The State then initiated proceedings pursuant to R.C. 2151.26(A) and Juv.R. 30(A) to have Metz bound over and tried as an adult for these crimes.

Dunn was the attorney representing Metz on these charges of juvenile delinquency. During the course of such representation, Dunn was contacted by Elkins who expressed a desire to help his friend (Metz) defend against the criminal charges facing him. Elkins then proceeded to give Dunn a taped confession. Although he confirmed that Metz had participated in the robbery/burglary of the home, Elkins admitted that he had, in fact, been the one to kill Mr. Perdue. On January 8, 1993, Dunn approached the Prosecutor of Washington County and proposed a "deal" whereby his client (Metz) would be tried for his crimes as a juvenile in exchange for evidence that somebody else had committed the murder. The parties involved each remember the negotiation of this "deal" differently. Dunn contends that the Prosecuting Attorney agreed to this arrangement provided there was some degree of corroborating evidence. Without such corroboration, Dunn recalled being told, there could be no "deal." The prosecutor denied having ever agreed to such an arrangement. In any event, Dunn played the tape of Elkin's confession for him hoping to obtain such a "deal" for his client (Metz). No "deal" was ever struck. However, the Prosecutor encouraged that such taped confession be revealed in court to assist Metz with his defense.(fn2)

Dunn was then subpoenaed, duces tecum, to appear before the Washington County Grand Jury on February 8 & 9, 1993, and to produce the taped confession given to him by Elkins. Although he appeared before the Grand Jury as the subpoena required, Dunn refused to produce the taped confession, or to answer any questions concerning Elkins, claiming that these were privileged matters. This was the point at which the lower court became involved with these proceedings. The Prosecutor, apparently, went before the court below and made an oral motion for an order to compel Dunn to comply with the subpoena, produce the tape and respond to questions concerning Elkins.(fn3) Dunn informed the court that he would not comply with the inquiry into these matters because they were privileged. No transcript, or other record, was made of that particular portion of the proceeding. Later, however, the court entered judgment finding "that if the matters are privileged, the [c]ourt may not order the witness to answer." The court then went on to state that it "made no findings concerning the issue of privilege." Although the issue was not resolved at this point, the parties were given time to get the matter on record.

On February 12, 1993, the lower court held a more formalized hearing on the matter at which point the course of proceedings were reviewed. Dunn, again, announced that he would not comply with the Grand Jury subpoena asserting that it sought out information protected by the attorney-client privilege. Dunn further asserted that the information being sought was attorney "work product" and, therefore, was shielded from attempts at collateral discovery through the grand jury process. The lower court took the matter under advisement and directed the parties to file (1) formal written motions detailing the relief being requested (so as to get the matter on record), and (2) memoranda addressing the legal issues involved. It further ordered that Dunn "not dispose of, alter, or permit anyone else access to the tape ... at issue in this cause"; that all proceedings held in the matter would be sealed by the Clerk of Courts; that the parties were forbidden to discuss the matter with the news media; and that Elkins be made a party to the proceedings in order to protect his interest (and that he be represented by the office of the Ohio Public Defender until such time as he was proven otherwise ineligible for such representation).

On February 26, 1993, Elkins (through the offices of the Washington County Public Defender) filed a motion to quash the grand jury subpoena arguing that it sought privileged information and that the forced production of such information would violate his constitutional rights. On March 3, 1993, the state filed an extensive memorandum in support of the subpoena arguing that the taped confession constituted neither privileged material nor attorney work product. The State further argued that, even if the tape was protected under an attorney/client privilege, that privilege had been waived when Dunn played the tape and revealed its contents to the Prosecutor. Finally, the State requested an in camera inspection of the tape so that the lower court could determine that there was no attorney/client relationship between Dunn and Elkins when the confession was given. Both Metz and Elkins filed briefs opposing the grand jury subpoena. On March 12, 1993, Metz also filed a motion to compel the State to prosecute him through the juvenile system, rather than as an adult, pursuant to the "deal" which Dunn had allegedly obtained for him from the prosecutor.

The lower court issued its decision on the motion(s) to quash/compel the grand jury subpoena on April 22, 1993. The court found that there was nothing to establish an attorney/client relationship between Dunn and Elkins when the tape was made. Thus, the court ruled, the tape was not protected by an attorney/client privilege. The court further opined that, even if the tape had been privileged, that privilege was waived when the tape was played to the prosecutor. It was also determined that production of the tape was not shielded under the attorney work product doctrine. A judgment to this effect was filed the next day granting the motion to compel, denying the motion to quash and ordering Dunn to provide the tape to the grand jury and "answer questions in regard to it." On May 13 1993, the court also entered judgment denying the motion to compel ...