State v. Brunson
2022 Ohio 4299
Ohio2022Background
- A robbery and shooting at the Cooley Lounge resulted in the bartender’s death; Nigel Brunson and four codefendants were charged; Brunson pleaded not guilty and was tried by jury.
- Codefendant Garry Lake accepted a plea/proffer agreement and gave a proffer statement; the state’s recording of the proffer also captured a private conversation between Lake, his attorney, and the attorney’s investigator—unknown to them at the time.
- The state produced the full recording in discovery; defense counsel later sought to use the recording to impeach Lake and argued Lake had waived the attorney-client privilege.
- The trial court concluded Lake had not waived the privilege, admitted the recording under seal for appellate review, Lake testified for the state at trial, and the jury convicted Brunson on multiple counts (including aggravated murder).
- At sentencing Brunson waived allocution and remained silent; the court considered that silence as evidence of lack of remorse and imposed life without parole plus additional terms; the Eighth District affirmed and the Ohio Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lake waived the attorney-client privilege for the recorded proffer | Brunson: Lake voluntarily revealed privileged communications (or failed to preserve privilege), so recording may be used at trial | Lake/state: conversation occurred in a setting reasonably believed private; privilege was not waived; counsel did not authorize waiver | Court: No waiver. Under R.C. 2317.02(A) and Jackson/McDermott, waiver requires express client consent or voluntary revelation of substance in a nonprivileged context; this was not shown |
| Whether the attorney-client privilege must yield to Brunson’s Sixth Amendment Confrontation right / Brady claims | Brunson: even if privileged, the recording is required Brady material and confrontation may trump privilege when necessary to cross-examination | State: privilege protects the communication; other effective means of impeachment existed; Brunson forfeited review and cannot show plain-error prejudice | Court: Privilege can yield only in extraordinary circumstances; here Brunson was effectively able to cross-examine Lake and cannot show a reasonable probability of a different outcome absent the recording; claim fails |
| Whether the trial court violated Brunson’s Fifth Amendment right by considering his silence/waiver of allocution as lack of remorse under R.C. 2929.12(D)(5) | Brunson: considering silence as lack of remorse penalizes invocation of the right to remain silent and impermissibly draws a negative inference | State: some adverse inferences at sentencing are permissible; other sentencing factors supported the sentence; any error harmless | Court: Error to consider a defendant’s silence as lack of remorse when the defendant pleaded not guilty and went to trial (such an inference implicates factual determinations barred by Mitchell), but error was harmless here because other sentencing findings (criminal history, postrelease-control status, serious harm to victims) independently support the sentence |
Key Cases Cited
- Jackson v. Greger, 110 Ohio St.3d 488 (2006) (Ohio rule that direct attorney-client communications are waived only by client consent or voluntary disclosure in nonprivileged context)
- State v. McDermott, 72 Ohio St.3d 570 (1995) (reaffirming limited grounds for waiver of attorney-client privilege)
- Mitchell v. United States, 526 U.S. 314 (1999) (trial court may not draw adverse inferences from defendant’s silence at sentencing to establish factual determinations about the offense)
- Swidler & Berlin v. United States, 524 U.S. 399 (1998) (protecting attorney-client privilege even posthumously; privilege justified despite loss of evidence)
- Herbert v. Lando, 441 U.S. 153 (1979) (evidentiary privileges are disfavored and may yield in proper circumstances)
- Davis v. Alaska, 415 U.S. 308 (1974) (Confrontation Clause includes effective cross-examination to expose witness bias)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (Confrontation Clause does not guarantee unlimited cross-examination)
- Estelle v. Smith, 451 U.S. 454 (1981) (Fifth Amendment protections can extend to sentencing-related evidence)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-client privilege encourages full and frank communication)
- State v. Myers, 154 Ohio St.3d 405 (2018) (plain-error prejudice standard for forfeited claims)