State v. Ledbetter

• Docket Number: S23A0900,S23X0901
• Decision Date: 05 March 2024
• Citation: State v. Ledbetter, 899 S.E.2d 222 (Ga. 2024)
• Parties: The STATE v. LEDBETTER. Ledbetter v. The State.
• Court: Georgia Supreme Court

899 S.E.2d 222

The STATE

v.LEDBETTER.

Ledbetter

v.The State.

S23A0900

S23X0901

Supreme Court of Georgia.

Decided: March 5, 2024

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta Georgia 30334, Michael Scott Carlson, A.D.A, Fani T. Willis, District Attorney, Kevin Christopher Armstrong, Senior A.D.A., Mario Kladis, A.D.A, Fulton County District Attorney’s Office, 136 Pryor Street, 3rd Floor, Atlanta Georgia 30303, for Appellant in S23A0900.

Bruce Steven Harvey, Law Offices of Bruce S. Harvey, 146 Nassau Street, N.W., Atlanta Georgia 30303, Brian Steel, The Steel Law Firm, P.C., 1800 Peachtree Street, NW., Suite 300, Atlanta Georgia 30309, for Appellee in S23A0900.

Bruce Steven Harvey, Law Offices of Bruce S. Harvey, 146 Nassau Street, N.W., Atlanta Georgia 30303, Brian Steel, The Steel Law Firm, P.C., 1800 Peachtree Street, N.W., Suite 300, Atlanta Georgia 30309, for Appellant in S23X0901.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta Georgia 30334, Michael Scott Carlson, A.D.A., Fani T. Willis, District Attorney, Adam Robert Abbate, Mario Kladis, A.D.A., Fulton County District Attorney’s Office, 186 Pryor Street, 3rd Floor, Atlanta Georgia 30303, for Appellee in S23X0901.

Warren, Justice.

In October 2018, John Ledbetter was indicted for murder and other crimes associated with the January 2016 shooting death of Jeremy Miller and the unrelated February 2015 shooting death of Damian Stinchcomb.Before trial, Ledbetter filed two motions to suppress evidence.One motion sought to suppress evidence related to Miller’s shooting provided to Detective Kevin.Leonpacher by Ledbetter’s previous attorney, Dennis Scheib, on the ground that the information was protected by attorney-client privilege.The other motion sought to suppress cell phone records related to Miller’s shooting and cell phone records related Stinchcomb’s shooting on the ground that the two warrants authorizing the search of his cell phone records were defective in several respects, including not being supported by probable cause.The trial court granted the first motion to suppress, and the State appeals.SeeOCGA § 5-7-1 (a)(5)(permitting the State to appeal from a pretrial order excluding evidence under certain conditions).The trial court denied the second motion to suppress, and Ledbetter cross-appeals.SeeOCGA § 5-7-1 (b)("In any instances in which any appeal is taken by and on behalf of the State of Georgia in a criminal case, the defendant shall have the right to cross appeal.").For the reasons explained below, we affirm both orders.Because each appeal has its own relevant facts and legal issues, we discuss them separately, addressing the State’s pretrial appeal first.

1.The State’s Appeal,Case No. S23A0900

(a) Miller was shot during a drug transaction on January 19, 2016, and later died in the hospital.¹During the investigation into the shooting, Scheib, Ledbetter’s attorney at the time, contacted law enforcement, and on February 5, 2016, he met with Detective Leonpacher about the investigation and gave the detective information about the shooting, as well as physical evidence related to the shooting.Ledbetter was later arrested for Miller’s murder.

After Ledbetter changed attorneys, his new trial counsel moved to suppress "all evidence provided to law enforcement" by Scheib based on attorney-client privilege.²At a hearing on this motion, the following evidence about Scheib’s meeting with Detective Leonpacher was presented.

Detective Leonpacher testified that Scheib contacted him shortly, after Miller’s shooting, "essentially gauging what the police knew about the incident."Scheib was "very clear about having some limited information from his client and he proffered some generalized details of the incident … in somewhat hypothetical terms."In a second call later that day, Scheib stated that Ledbetter was his client.The detective then met with Scheib at Scheib’s office.

The meeting at Scheib’s office was audio-recorded by the detective, and the recording was played at the hearing.Scheib first gave the detective information about the vehicle involved in the shooting.He explained that it was a rental car and gave the detective the name and number of the person at the rental car company to contact about the car.Scheib then provided the following account of the shooting.³Ledbetter knew Miller "from before," and he and Miller arranged to meet each other in the parking lot to "talk about" a marijuana transaction.In the parking lot, Miller got into the passenger’s side of Ledbetter’s car and then pulled out a "chrome and black automatic pistol."Ledbetter put his hands up in the air and then reached out and grabbed the gun.They struggled.As Ledbetter pushed the gun away, it went off.Miller told Ledbetter that he had another gun.Ledbetter threw himself over Miller, and as soon as Ledbetter had control over the gun, he"fired twice."

Scheib also gave the detective physical evidence, including a backpack that Ledbetter said Miller was carrying when he entered the vehicle, the clothes Ledbetter was wearing on the night of the shooting, and two guns, at least one of which Scheib indicated Ledbetter had taken from Miller.⁴At the end of the meeting, Scheib told Detective Leonpacher that Ledbetter had said that if the detective secured an arrest warrant for Ledbetter, Ledbetter would turn himself in within 24 hours because he did not want the "fugitive squad" looking for him.Scheib further explained that Ledbetter had said, "I’m not gonna run," and "I gotta deal with this."Scheib never stated that Ledbetter had waived attorney-client privilege or given Scheib permission to share any of this information.

Detective Leonpacher testified that when talking to Scheib, he was under the impression that Scheib was acting as an agent for Ledbetter, noting that Scheib used Ledbetter’s and Miller’s names in his description of the incident, rather than using hypothetical names.The detective also recalled that as Scheib was providing details, Scheib referred to his notes, leading the detective to "presume[ ] .. that [Scheib] had spoken with his client and made some notes and was trying to reproduce to me the information provided by his client to him."Scheib did not provide and the detective never saw "anything that said that there was some sort of waiver of attorney-client privilege" allowing Scheib to provide this proffer.

Scheib testified that he was trying to use "hypotheticals" to "guide [Detective Leonpacher] toward looking into Mr. Miller as a robber" who had a weapon.Scheib explained, "I was using hypotheticals because I knew I couldn’t say my client has actually said this without my client giving up the attorney-client privilege."⁵Scheib testified that Ledbetter had not waived attorney-client privilege or given him permission to share what Ledbetter told Scheib with "the police, the prosecution, or anybody else"; Scheib also did not have authority from Ledbetter to say that any of the items he gave the detective came from Ledbetter.Scheib further testified that Ledbetter wrote him a letter with specific information about what he wanted to do "as far as turning himself in."⁶

Ledbetter testified that he never gave Scheib permission to reveal private communications or share physical evidence.When he learned in 2018 that Scheib had given information to Detective Leonpacher, he"contact[ed] the fee arbitration people" because he"felt like [Scheib] needed to be disbarred and I needed my money returned."⁷And Ledbetter hired a different attorney to represent him going forward.

(b) On December 6, 2021, the trial court granted Ledbetter’s motion to suppress evidence provided by Scheib, finding, based on the evidence presented at the hearing that:

Scheib obtained privileged information from Defendant Ledbetter during the course of legal representation.This information included statements as well asphysical evidence.Attorney Scheib, unilaterally and without knowledge or permission of Defendant Ledbetter, and in violation of the attorney-client privilege, violated this statutory privilege and unlawfully shared this privileged information/evidence with law enforcement.This was error.

Citing OCGA § 24-5-501 (a)(2) and several cases, the trial court therefore ruled that "[i]n order to cure this error, the prosecution as well as all of its witnesses are hereby notified that they are not to use, directly or indirectly, any privileged evidence obtained from Attorney Scheib which includes, but is not limited to, Defendant’s statements as well as physical evidence provided by Attorney Scheib to Homicide Detective Leonpacher."The order further held that "it cannot be mentioned that Attorney Scheib ever met with the police … and Attorney Scheib cannot be called as a witness at trial by the State."

The State appeals the trial court’s grant of Ledbetter’s motion to suppress, arguing that Ledbetter has not shown a violation of attorney-client privilege through any of Scheib’s communications.The State further argues that, even if there was a violation of Ledbetter’s attorney-client privilege, the physical evidence provided by Scheib to Detective Leonpacher should not be suppressed, and the State should be permitted to present evidence of the source of the physical evidence, i.e., that it came from Scheib, Ledbetter’s attorney.Finally, the State argues that the trial court erred by suppressing "derivative evidence"—that is, evidence derived from Scheib’s statements to Detective Leonpacher.

For the reasons discussed below, we agree with the trial court that Ledbetter has shown that his attorney-client privilege was violated through Scheib’s disclosures to...