People v. Joly

• Decision Date: 11 March 2021
• Docket Number: 354379
• Citation: 970 N.W.2d 426,336 Mich.App. 388
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Nichole Christine JOLY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

336 Mich.App. 388

970 N.W.2d 426

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Nichole Christine JOLY, Defendant-Appellee.

No. 354379

Court of Appeals of Michigan.

Submitted January 7, 2021, at Lansing.

Decided March 11, 2021, at 9:25 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jerard M. Jarzynka, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

The Abood Law Firm (by Andrew P. Abood, East Lansing, Carrie J. Koerber, and Austin A. Zima) for defendant.

Before: Swartzle, P.J., and Ronayne Krause and Rick, JJ.

Swartzle, P.J.

The government knowingly breached defendant's attorney-client privilege. Rather than try to mitigate the breach, the government deliberately used information obtained from the privileged communication to obtain incriminating physical evidence. The government then charged defendant with several crimes, and it made clear that it intended to use the physical evidence at trial. Thus, the record on appeal confirms that the government knew of the privilege; deliberately intruded into it; and defendant was actually and substantially prejudiced.

This constituted a violation of due process, not just the common-law privilege. Accordingly, for the reasons more fully explained below, we affirm the trial court's suppression of the physical evidence.

I. BACKGROUND

This is the second time that this case has been before our Court. As the prior panel of this Court explained,

Defendant's home was intentionally set on fire and his two dogs perished in the blaze. Detective Aaron Grove investigated defendant as a suspect. Detective Grove obtained a warrant to search defendant's new home and the electronic devices of defendant and his partner, Christina Moore-Sharon. Detective Grove forwarded the seized electronic devices to a laboratory for forensic analysis. The analyst searched for certain words related to the arson and discovered an email. In that email, defendant shared the names of the individuals to whom he had given his lawnmower and gas can. Detective Grove had been searching for those items because he believed they were connected to the fire. Detective Grove interviewed the individuals named in the email and retrieved the gas can and lawnmower.

Defendant moved to suppress the email on the ground that is [sic] was protected by the attorney-client privilege, as well as the derivative evidence obtained from it. The trial court determined that the email was not privileged and denied his motion. [ People v. Joly , unpublished per curiam opinion of the Court of Appeals, issued January 21, 2020 (Docket No. 348672) (Joly I ), pp. 1-2, 2020 WL 359658.]

The panel concluded that the attorney-client privilege protected the e-mail. Id. at 3. It remanded the case to the "trial court to address defendant's contention that there was a constitutional violation requiring suppression of the derivative evidence via the fruit-of-the-poisonous-tree doctrine." Id. at 4. The derivative evidence is the lawnmower and gas can.

On remand, the parties submitted a set of stipulated facts to the trial court. The stipulation and the undisputed record establish the following additional facts: In August 2017, the Jackson Police Department opened an investigation into the suspected arson. In September 2017, the Abood Law Firm advised the Jackson County Prosecutor's Office that defendant had retained the firm as legal counsel. Several months later, in February 2018, law enforcement executed a search warrant for a tablet computer. From this tablet, law enforcement intentionally pulled an e-mail between defendant and Jeffrey John Abood, an employee of the Abood Law Firm. Abood's e-mail address was jabood@aboodlaw.com.

In September 2018, the government charged defendant with one count of first-degree arson, MCL 750.72, and two counts of animal torture, MCL 750.50b. At the preliminary examination, Detective Grove testified that the Michigan State Police (MSP) forensic laboratory produced the e-mail to him. Detective Grove testified that he knew that defendant and defendant's attorney were parties to the e-mail. As the parties stipulated, "That based on the foregoing, the Government was objectively aware of an ongoing personal attorney-client relationship" and "Detective Grove had not obtained a waiver of attorney-client privilege from the Defendant." The stipulation continued:

10. That because the email was from Defendant and addressed to jabood@aboodlaw.com, on its face, the email appeared to be covered by the attorney-client privilege. The technician intentionally opened and viewed the email and other emails of the Defendant. The substance of the email looked like it was attorney-client privileged subject matter. The technician intentionally turned that email over to law enforcement.

11. That Detective Grove testified that he knew that one of the parties on the email was Defendant's attorney. Detective Grove intentionally viewed the email, conducted an investigation based on its contents, included its contents in a written incident report, and turned it over to the Prosecutor's Office. Acting on information contained in the email, Detective Grove recovered certain evidence. Said evidence was used against Defendant at his preliminary examination.

12. That the People likewise intend to use the aforementioned evidence against Defendant at trial.

During the trial court's evidentiary hearing, defense counsel argued that defendant's rights to remain silent and due process were violated by the breach of the attorney-client privilege. Defense counsel argued that suppression of the derivative evidence was the proper remedy. The prosecutor rejoined that the prosecution did not intend to introduce the e-mail at trial. The prosecutor also claimed that defendant was asking the trial court to constitutionalize the attorney-client privilege.

The trial court issued a written opinion suppressing the derivative evidence. At the outset of its opinion, the trial court drew guidance from two federal appellate court decisions, United States v. Voigt , 89 F.3d 1050 (C.A. 3, 1996), and United States v. Kennedy , 225 F.3d 1187 (C.A. 10, 2000). Using the three-part test set forth in those decisions, the trial court first found as a factual matter that the government was aware of the attorney-client relationship between defendant and the Abood Law Firm. It next concluded, in its words, "easily" that "the government deliberately intruded" into the attorney-client relationship. The trial court noted that the detective admitted to knowing about the relationship, "and with that knowledge availed himself to the contents of the email, nonetheless." Finally, the trial court determined that defendant would suffer actual and substantial prejudice if the evidence derived from the email was not suppressed. The trial court recognized that, while the detective was aware of a lawnmower and gas can and that those items might be relevant to the investigation, "there is nothing to indicate that the state, except for information contained in the email, would have acquired the evidence."

(The prosecutor did not argue inevitable discovery.) Accordingly, although the trial court observed that the government's actions did not necessarily "shock it's [sic] conscience," the actions did violate defendant's right to due process under the test found in Voigt and Kennedy .

This interlocutory appeal followed.

II. ANALYSIS

On appeal, the prosecutor maintains that the trial court erred by "constitutionalizing" the attorney-client privilege. The trial court has done something that no other court in the nation has done—suppress derivative evidence, so-called "fruit of the poisonous tree," based solely on the violation of the common-law privilege. In doing so, the trial court misread and extended Voigt and its progeny beyond their intended scope. On these grounds, the prosecutor asks that we reverse the trial court. As we explain, however, the trial court did not do what the prosecutor claims it did, and, as the record makes quite clear, the government's actions here violated defendant's right to due process.

This Court reviews de novo a trial court's decision on a motion to suppress. People v. Hyde , 285 Mich. App. 428, 436, 775 N.W.2d 833 (2009). We also review de novo questions of constitutional law. People v. Sadows , 283 Mich. App. 65, 67, 768 N.W.2d 93 (2009). A trial court's findings of fact are reviewed for clear error. Hyde , 285 Mich. App. at 436, 775 N.W.2d 833.

A. THE ATTORNEY-CLIENT PRIVILEGE

Our judicial system is predicated on the adversarial process. Unlike some other legal systems, the American system, brought here by English colonists and subsequently evolved over the centuries, "is grounded on competing factual and legal arguments presented by adverse parties." In re Smith , 335 Mich. App. 514, 521, 967 N.W.2d 857 (2021). The truth-seeking function of the judicial process depends on a party subjecting all of the evidence—its own and the opposing party's evidence—to the crucible of critical analysis, cross-examination, and forceful argument.

This adversarial process requires several components to achieve its public end. These include, among other things, a neutral arbiter, even-handed procedures, rational evidentiary rules, and well-prepared advocates. With respect to the latter, for an advocate to be well-prepared, the advocate must have the opportunity to be well-informed by the client.

The attorney-client privilege is one of the means for ensuring well-prepared, well-informed advocates. See People v. Johnson , 203 Mich. App. 579, 585, 513 N.W.2d 824 (1994). "Indeed, the attorney-client privilege is based upon the wise policy that considers that the interests of society are best promoted by inviting the utmost confidence on the part of the client in disclosing secrets to this professional advisor." 81 Am. Jur. 2d, Witnesses, § 319, p. 324. For this and other reasons, "[t]he attorney-client privilege is the oldest of...