State v. Brunson
| Citation | 2022 Ohio 4299 |
| Decision Date | 05 December 2022 |
| Docket Number | 2020-1505 |
| Parties | The State of Ohio, Appellee, v. Brunson, Appellant. |
| Court | United States State Supreme Court of Ohio |
2022-Ohio-4299
The State of Ohio, Appellee,
v.
Brunson, Appellant.
No. 2020-1505
Supreme Court of Ohio
December 5, 2022
Submitted January 25, 2022
Appeal from the Court of Appeals for Cuyahoga County, No. 107683, 2020-Ohio-5078.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Katherine Mullin, and Daniel A. Cleary, Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Aaron T. Baker, Assistant Public Defender, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Zachary P. Keller, Deputy Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.
Russell S. Bensing, urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.
Fischer, J.
{¶ 1} Appellant, Nigel J. Brunson, appeals the judgment of the Eighth District Court of Appeals affirming his convictions and sentence. Brunson challenges his convictions based on his inability to cross-examine Garry Lake, a codefendant and a witness for appellee, the state, about a statement Lake made to his attorney that was recorded by the state and turned over to the defendants during discovery ("the recorded statement"). Brunson challenges his sentence based on the trial court's finding that his choice to waive allocution and remain silent at sentencing demonstrated a lack of remorse. We accepted Brunson's appeal on three of his propositions of law relating to the attorney-client privilege and the trial court's consideration of a defendant's silence at sentencing. See 161 Ohio St.3d 1450, 2021-Ohio-534, 163 N.E.3d 581.
{¶ 2} We reaffirm our prior holdings that a person waives the attorney-client privilege with regard to direct communications with his or her attorney either by expressly consenting to the waiver or by voluntarily revealing the substance of
the privileged communications in a nonprivileged context. See Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, paragraph one of the syllabus; State v. McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985 (1995), paragraph one of the syllabus; R.C. 2317.02(A). We agree with the lower courts' determinations that Lake did not waive his attorney-client privilege in this case.
{¶ 3} We also hold that even though there may be circumstances in which the attorney-client privilege yields to a defendant's right to confrontation, those circumstances do not exist in this case. But even if they did, Brunson has not demonstrated a reasonable probability that the result of his trial would have been different but for his inability to utilize the recorded statement to cross-examine Lake.
{¶ 4} Additionally, we hold that a trial court errs in its evaluation of a defendant's lack of remorse when it considers that defendant's decision to waive allocution and remain silent at sentencing if the defendant pleaded not guilty and exercised his or her right to a jury trial. While the trial court erred when it considered Brunson's decision to waive allocution and remain silent in determining whether he lacked remorse, the record demonstrates that the error was not prejudicial.
{¶ 5} Therefore, we affirm the judgment of the Eighth District Court of Appeals.
I. GENERAL BACKGROUND
{¶ 6} This case involves the prosecution of Brunson and four codefendants, Anita Hollins, Dana Thomas, Dwayne Sims, and Lake, for their alleged involvement in a robbery and shooting at the Cooley Lounge in Cleveland, which resulted in the death of a bartender. We provide a general background of the case, focusing on Brunson, and include additional facts relating to the attorney-client-privilege and sentencing issues in later sections.
A. Brunson is indicted for robbery and murder at the Cooley Lounge
{¶ 7} During a robbery of the Cooley Lounge, three men assaulted and robbed the bar's patrons and shot and killed the bartender. The first two men had ordered one drink from the bar to share. They were joined later by a third man, who also shared the drink and then discarded the cup into the trash. The three men then proceeded to assault and rob the bar's patrons, kicking one and throwing another to the ground. Video surveillance footage shows that the third man led the bartender into a back room and shot her twice; it also shows the first man shooting her again before fleeing the scene.
{¶ 8} Law enforcement's investigation led the state to indict Brunson for numerous felony offenses, including aggravated murder, murder, aggravated robbery, kidnapping, felonious assault, and aggravated burglary. The state also indicted Hollins, Thomas, Sims, and Lake for offenses related to the incident. Brunson, Hollins, Thomas, and Sims pleaded not guilty to the offenses. Lake, however, accepted the state's plea deal, proffered a statement, and identified his codefendants as participants in the crimes.
{¶ 9} The state provided the defendants with discovery that included a copy of the recording of Lake's proffer statement and his identifications of the codefendants. The recording also captured a private conversation between Lake, his counsel, and his counsel's investigator-a fact that was unknown to Lake and his counsel and one that would become relevant during later proceedings.
B. Suppression-hearing testimony raises attorney-client-privilege issues
{¶ 10} Sims moved to suppress Lake's identification of the codefendants as participants in the crimes. At the suppression hearing, the state's questioning of Lake and of the detective who showed Lake the photos of his codefendants for identification purposes raised concerns regarding Lake's attorney-client privilege. The answers elicited by the state arguably revealed information about discussions that were had between Lake and his attorney and between Lake's attorney and the
detective concerning Lake's knowledge of the crime. However, Lake was not cross-examined about his attorney-client privilege; rather, the issue was addressed off the record after the suppression hearing.
{¶ 11} The day after the suppression hearing, the trial court, the state, and counsel for each of the defendants went on the record to discuss Lake's attorney-client privilege. Brunson and his codefendants questioned not only whether Lake had waived his attorney-client privilege at the suppression hearing but also whether the recorded statement, i.e., the state's recording of Lake's private conversation with his counsel and his counsel's investigator during his proffer discussions, which the state provided to all defendants in discovery, could be used to cross-examine Lake at trial. Brunson and his codefendants argued that they should be allowed to use the recorded statement as impeachment evidence pursuant to their Sixth Amendment right to confrontation.
{¶ 12} Lake's counsel argued against waiver, testifying before the trial court that he had no intention of waiving Lake's privilege at any time, nor had he been authorized by Lake to waive Lake's attorney-client privilege. The trial-court judge watched the recording and, after significant discussion with everyone involved and consideration of the issue, determined that Lake's attorney-client privilege had not been waived. The court denied the motion to suppress but admitted the recording in its entirety, under seal, for future appellate review.
C. The jury finds Brunson guilty
{¶ 13} The matter proceeded to a joint trial. The state presented recordings of Brunson's phone calls from jail in which he implicated himself, Hollins, Thomas, Sims, and Lake in the crimes. The state also offered DNA evidence linking Thomas and Brunson to the discarded cup from the bar. And based on the weight and height of the male defendants, one detective testified that she believed, based on the surveillance video, that Brunson was the first man to enter the bar, that he struck one of the patrons, and that he fired the last shot at the bartender.
{¶ 14} Lake testified for the state; he identified Brunson and Hollins as the drivers on the evening in question. He claimed that he was sleeping in the car and did not participate in the robbery. Though Lake was cross-examined extensively during the trial, none of the defendants explicitly raised the attorney-client-privilege issue again, despite it being mentioned by the trial court and by Lake's attorney.
{¶ 15} After the presentation of the evidence and closing arguments, the jury found Brunson guilty of 22 felony counts, including 3 counts of aggravated murder, 1 count of murder, 6 counts of aggravated robbery, 7 counts of kidnapping, 3 counts of felonious assault, and 2 counts of aggravated burglary.
D. The trial court sentences Brunson to life in prison
{¶ 16} At sentencing, Brunson remained silent and waived his right to allocute. The trial court considered Brunson's silence and his decision not to allocute to be a demonstration of his lack of remorse. After merging allied offenses of similar import, the trial court sentenced him to life imprisonment without the possibility of parole for aggravated murder with three years for the firearm specification, seven years for each of the five counts of aggravated robbery, six years on the felonious-assault count with three years for the firearm specification, and seven years for the kidnapping count. The court ran some of the sentences consecutively, finding that "consecutive service [was] necessary to protect the public from future crime" or to punish Brunson in proportion to the seriousness of his conduct.
E. The Eighth District affirms Brunson's convictions and sentence
{¶ 17} Brunson appealed to the Eighth District. He alleged that Lake waived his attorney-client privilege, either through the recorded statement or through his testimony at the suppression hearing. Brunson maintained that he should have been allowed to question Lake about the recorded...
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