THE STATE OF OHIO, APPELLEE, v. BRUNSON, APPELLANT.
No. 2020-1505
SUPREME COURT OF OHIO
December 5, 2022
Slip Opinion No. 2022-Ohio-4299
Submitted January 25, 2022. APPEAL from the Court of Appeals for Cuyahoga County, No. 107683, 2020-Ohio-5078.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Slip Opinion No. 2022-Ohio-4299
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Brunson, Slip Opinion No. 2022-Ohio-4299.]
Criminal law-Waiver of attorney-client privilege-Sixth Amendment right to confrontation-
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
{¶ 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.
{¶ 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
{¶ 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.
{¶ 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 statement on cross-examination under his Sixth Amendment right to confrontation and under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brunson also alleged that the trial court improperly considered his silence at sentencing.
{¶ 18} The Eighth District found that the trial court did not abuse its discretion by denying Brunson‘s request to use the recorded statement to impeach Lake on cross-examination. The court of appeals determined that Lake‘s testimony at the suppression hearing did not constitute a waiver of his attorney-client privilege, because the record did not clearly establish that Lake testified about the contents of the recorded statement. 2020-Ohio-5078, ¶ 31. The court did not address Brunson‘s veiled assertion that Lake waived his privilege prior to the suppression hearing, nor did it address Brunson‘s Confrontation Clause and Brady arguments.
{¶ 19} The Eighth District also held that the trial court properly considered Brunson‘s silence as a demonstration of his lack of remorse under
{¶ 20} Thus, the appellate court affirmed.
II. PROPOSITIONS OF LAW
{¶ 21} We accepted Brunson‘s appeal on three of his propositions of law, 161 Ohio St.3d 1450, 2021-Ohio-534, 163 N.E.3d 581, including his first proposition of law, which concerns the trial court‘s consideration of a defendant‘s silence at sentencing:
[First Proposition of Law:] A trial court violates a defendant‘s right to remain silent, in violation of both the Ohio Constitution and the U.S. Constitution, when it relies upon that silence as part of the basis for imposing a sentence of life without the possibility of parole.
We also accepted Brunson‘s appeal on his third and fourth propositions of law, which relate to the attorney-client privilege and concern a defendant‘s ability to use privileged statements during cross-examination:
[Third Proposition of Law:] A witness waives attorney-client privilege with respect to a subject when he or she offers testimony on the same subject.
[Fourth Proposition of Law:] The attorney-client privilege of a State‘s witness must yield to a defendant‘s right to present a full defense and confront his accuser when the information that is purportedly the subject of that privilege is Brady material in the possession of the State.
{¶ 22} We review these propositions of law out of order.
III. ANALYSIS
A. Attorney-client privilege
1. Brunson forfeited all but plain error
{¶ 23} In his third proposition of law, Brunson asserts that a witness waives the attorney-client privilege on a subject when that witness offers testimony on that same subject. Brunson makes no argument about Lake‘s testimony at the suppression hearing. Rather, Brunson focuses solely on Lake‘s alleged failure to assert his privilege and Lake‘s alleged waiver of the privilege based on his failure
{¶ 24} This court is not obligated to formulate legal arguments on behalf of the parties, because acting as an appellate court, we preside as arbiters of the legal questions presented and argued by the parties. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19. Although Brunson did not raise the argument that Lake waived his attorney-client privilege through his testimony at the suppression hearing, the state did raise the issue and Brunson addressed it briefly at oral argument. Therefore, we address it in our resolution of the waiver issue.
{¶ 25} While we recognize that Brunson raised the issue whether Lake waived his attorney-client privilege immediately prior to opening statements, he did not renew the motion during Lake‘s examination at trial. Thus, he has forfeited all but plain error. See State v. Grubb, 28 Ohio St.3d 199, 203, 503 N.E.2d 142 (1986) (an order denying a motion in limine is a preliminary ruling about an evidentiary issue that is anticipated, and the issue is preserved only by a timely objection when the issue is actually reached during the trial); State v. West, ___ St.3d ___, 2022-Ohio-1556, ___ N.E.3d ___, ¶ 22 (appellate court applies plain-error review when the defendant has forfeited the right to assert an error on appeal). To prevail on this issue, Brunson must demonstrate “a reasonable probability” that the trial court‘s error in denying his request to cross-examine Lake about the recorded statement “resulted in prejudice,” such that “the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” (Cleaned up.) State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 130.
{¶ 26} We acknowledge that a trial court has broad discretion to determine the admissibility of evidence in a case, so long as that discretion is exercised “in line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). And determining whether a statement may be used to cross-examine a witness is an evidentiary issue. But the trial court‘s discretion comes into play only when it is balancing whether admissible evidence may be used at trial. See State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22, 30. A trial court‘s discretion does not extend to determining whether a statement is protected by the attorney-client privilege; that is a question of law. See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35 (a trial court does not have discretion when making a determination of law). Thus, we review de novo whether Lake‘s recorded statement is protected by the attorney-client privilege, and we emphasize that the trial court‘s discretion comes into play only if the evidence would be lawfully admissible.
3. Attorney-client privilege is governed by statute and the common law
{¶ 27} “‘The attorney-client privilege is one of the oldest recognized privileges for confidential communications.‘” Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 16, quoting Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). It encourages “‘full and frank communication’ between clients and their attorneys to allow attorneys to be fully informed so that they may provide sound legal advice. Id. at ¶ 16, quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
{¶ 28} The attorney-client privilege is governed by statute,
{¶ 29} Though
{¶ 30} Accordingly, the direct communications between Lake and his attorney are protected by the attorney-client privilege under
4. Lake did not waive his attorney-client privilege
{¶ 31} Brunson‘s argument that Lake waived his attorney-client privilege rests solely on the assertion that Lake voluntarily revealed attorney-client-privileged communications. Whether a client “voluntarily reveals the substance of attorney-client communications in a nonprivileged context” under
a. The recorded statement is protected by the attorney-client privilege
{¶ 32} After reviewing the facts surrounding the recorded statement, we hold that Lake did not waive his attorney-client privilege, because the communication between Lake and his attorney that was recorded and disseminated to the other parties was not made in a “nonprivileged context.”
{¶ 33} “Nonprivileged context” is not a defined term in the statute. See
{¶ 34} Brunson seems to argue that Lake‘s knowledge of the possibility that the conversation he had with his attorney in the interview room could be recorded and his decision to speak with his attorney in that room despite that knowledge are enough to establish that Lake revealed privileged communications voluntarily in a nonprivileged context. He is mistaken. Lake was in the state‘s custody, so moving to another room or speaking elsewhere was an unlikely possibility. The police left the interview room at the request of Lake‘s attorney so that he and his client could speak privately. There is no reason for this court to conclude that Lake somehow inadvertently waived his attorney-client privilege because there was a possibility that the state could be listening to what was meant to be a private conversation between him and his attorney. Such a holding would inhibit attorneys and their clients from engaging in open and honest conversations in places where they expect privacy but where they could possibly be recorded, which nowadays could be anywhere.
{¶ 35} Furthermore, we have expressly declined on multiple occasions to recognize the doctrine of implied waiver of the attorney-client privilege for communications falling under
b. Lake did not waive his attorney-client privilege at the suppression hearing
{¶ 36} Additionally, we hold that Lake did not waive his attorney-client privilege by voluntarily revealing the substance of attorney-client communications in a nonprivileged context.
{¶ 37} Lake testified in a nonprivileged context at a public hearing on Sims‘s motion to suppress. Thus, we consider whether Lake‘s testimony at the suppression hearing was given voluntarily and whether he revealed the substance of attorney-client-privileged communications during his testimony, thereby opening the door for Brunson to cross-examine him at trial using the recorded statement. We find that while Lake‘s suppression-hearing testimony was voluntarily given, he did not reveal the substance of attorney-client-privileged communications in his testimony and, therefore, did not open the door to the admission of the recorded statement.
(1) Lake‘s testimony was voluntarily given
{¶ 38} The General Assembly did not define what it means for a client to “voluntarily” reveal privileged statements in
{¶ 39} Here, we must decide whether Lake gave his suppression-hearing testimony of his own volition. The state argues that Lake‘s testimony was not voluntarily given, because his testimony was elicited on direct examination during
{¶ 40} Some of the facts in this case generally support the conclusion that Lake did not voluntarily provide attorney-client-privileged information through his suppression-hearing testimony. Lake testified and could have been held in contempt of court if he had failed to answer the questions asked of him. See
[Prosecutor:] Okay. And before you had this-this interview on April 6th that we have here on the screenshot, State‘s 1, did you let your attorney know what you were going to tell law enforcement on that day?
[Lake:] I let him know what I was going to tell them?
[Prosecutor:] Correct.
[Lake:] No.
[Prosecutor:] All right. Did you ever indicate that you knew the names or identification or individuals that committed this crime on October 24th, 2016?
[Lake:] You said did I tell them who the names was?
[Prosecutor:] Correct.
[Lake:] Yes.
This questioning tends to support the argument that Lake‘s suppression-hearing testimony was not voluntarily given.
{¶ 41} However, we must also consider that Lake was the state‘s witness under the terms of his plea agreement. Though he may not have wanted to testify in this case, Lake chose to do so. Additionally, Lake‘s counsel, who was present at the hearing, did not object to the state‘s line of questioning. Though it is a close call under the facts of this case, we find that the evidence supports the conclusion that Lake‘s testimony at the suppression hearing was voluntarily given.
{¶ 42} Since Lake‘s testimony was voluntarily given, we must determine whether it revealed “the substance of attorney-client communications,”
{¶ 43} Lake made two statements during his suppression-hearing testimony that may have concerned privileged communications with his attorney. First, Lake answered “No” to the state‘s question about whether he told his attorney what he would tell police on the day of the proffer. Second, Lake testified that he told “them” the names of the individuals involved in the crime. We cannot discern from this record whether “them” refers to Lake‘s counsel or to law enforcement. See 2020-Ohio-5078 at ¶ 31. We acknowledge that there is a strong possibility that Lake was referring to his counsel and his counsel‘s investigator when he said “them,” especially given the state‘s belief that Lake‘s counsel had revealed to detectives the persons Lake had identified as the perpetrators in this case. But we cannot be sure. Thus, we review whether the recorded statement included a discussion between Lake and his attorney about what Lake planned on telling law enforcement when making his proffer.
{¶ 45} Additionally, we make clear that even though there was inconsistent testimony concerning whether Lake‘s attorney had informed law enforcement about matters discussed between him and his client, which Lake‘s attorney denies doing, any such disclosures do not waive Lake‘s attorney-client privilege. See Jackson, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, at paragraph one of the syllabus; State v. Doe, 101 Ohio St.3d 170, 2004-Ohio-705, 803 N.E.2d 777, ¶ 15 (“The attorney-client privilege belongs solely to the client-not the attorney“). Counsel may reveal attorney-client-privileged communications only with the express consent of the client or after the client voluntarily reveals the substance of privileged communications in a nonprivileged context. We have no evidence that either occurred here; rather, the evidence before us supports the conclusion that neither situation occurred. So Lake‘s counsel‘s statements to law enforcement also do not support waiver.
{¶ 46} Therefore, we conclude that Lake did not waive his attorney-client privilege through his testimony at the suppression hearing and, therefore, did not open the door for Brunson to use the recorded statement during cross-examination of Lake at trial.
{¶ 47} Brunson also argues that Lake‘s attorney-client privilege was not preserved because the state, not Lake, asserted it. This argument is without merit.
{¶ 48} There is no doubt that the attorney-client privilege belongs to Lake, see Doe at ¶ 16, and that it is his privilege, not the government‘s, to assert, see United States v. Rainone, 32 F.3d 1203, 1206 (7th Cir.1994). But it is a mischaracterization to say that in this case only the state asserted Lake‘s attorney-client privilege and defended it when challenged.
{¶ 49} Lake‘s counsel, once apprised of the issue, argued that Lake did not waive his attorney-client privilege with regard to the recorded statement and that Lake did not waive the privilege through his suppression-hearing testimony. Both Lake‘s counsel and the state argued against waiver, and Lake‘s counsel provided sworn testimony in support of his client‘s position. See Waldmann v. Waldmann, 48 Ohio St.2d 176, 178, 358 N.E.2d 521 (1976) (the party who seeks to exclude testimony based on the attorney-client privilege has the burden of proving that the privilege was not waived). Thus, the privilege was properly asserted.
{¶ 50} But even assuming arguendo that Lake‘s attorney could not assert the attorney-client privilege on behalf of his client and that it was error for him to do so, it is apparent that Brunson not only forfeited the error but invited it. While it is true that Lake did not expressly assert his attorney-client privilege at the suppression hearing, no one raised the issue at the suppression hearing during Lake‘s examination, while Lake‘s counsel was still present. And when the issue came up again prior to trial and Brunson was provided with an opportunity to clarify this issue, he did not call Lake to testify or argue that he should testify on the issue. Rather, Brunson‘s codefendant Sims called Lake‘s attorney to testify regarding the attorney-client-privilege issue. So, to the extent that allowing Lake‘s counsel to assert the privilege without Lake being present was error, it was invited. See Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d 145 (1943), paragraph one of the syllabus (a
B. Right to confrontation
{¶ 51} In his fourth proposition of law, Brunson argues that even if Lake did not waive his attorney-client privilege when the state disseminated the recorded statement as evidence under Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the privilege must yield to Brunson‘s constitutional right to confront his accuser. This argument was presented by Hollins‘s counsel after the suppression hearing but prior to opening statements and the presentation of evidence. It is unclear whether Brunson joined in Hollins‘s argument. Nevertheless, the argument was not preserved during Lake‘s examination at trial. Thus, Brunson has forfeited all but plain error. Grubb, 28 Ohio St.3d at 203, 503 N.E.2d 142. Reviewing this issue for plain error, we determine whether Brunson, pursuant to his Sixth Amendment right to confront the witnesses against him, should have been allowed to cross-examine Lake using the recorded statement, which we have determined to be protected by the attorney-client privilege.
1. Sixth Amendment right to confrontation and the attorney-client privilege
{¶ 52} The Sixth Amendment to the United States Constitution guarantees defendants the right to confront the witnesses against them, which specifically includes the right to cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); see also Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Cross-examination presents an opportunity for counsel to impeach a witness by introducing evidence that the witness has possible biases or ulterior motives that may relate to the case. Davis at 316. The exposure of a witness‘s motivation in testifying is a proper and important function of the defendant‘s Sixth Amendment right. Id. at 316-317.
{¶ 54} The attorney-client privilege, in contrast, is not a right found in either the
{¶ 55} Neither this court nor the United States Supreme Court has addressed whether a defendant‘s constitutional right to cross-examination may trump a witness‘s statutory and common-law right to the attorney-client privilege. The Supreme Court has left the issue unresolved, but its case law indicates that if the privilege were to ever yield to the Confrontation Clause, it would be under only the most extraordinary circumstances.
{¶ 56} The United States Supreme Court has stated that “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances.” Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). “The fundamental basis upon which all rules
{¶ 57} The Supreme Court opined that certain privileges, even those as important as the President‘s privileges, could yield to a defendant‘s right to cross-examination when there is a demonstrated specific need for the evidence. Herbert at 175. However, in speaking about the attorney-client privilege in the context of a posthumous disclosure of privileged statements, the Supreme Court protected the privilege and expressed that “the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place.” Swidler & Berlin at 408; see also Peña-Rodriguez v. Colorado, 580 U.S. 206, 137 S.Ct. 855, 874, 197 L.Ed.2d 107 (2017) (Alito, J., dissenting) (to preserve our system of justice, courts have often protected confidential communications of great value at the expense of losing important evidence). This statement is an important one; it indicates that even when the attorney-client privilege applies to a communication between a witness and his or her attorney, the loss of the evidence that is protected by that privilege could be justified, because without that protection, the witness may never have made the communication in the first place.
{¶ 58} For the attorney-client privilege to have meaning in our society, “the attorney and the client must be able to predict with some degree of certainty whether particular discussions will be protected.” Upjohn Co., 449 U.S. at 393, 101 S.Ct. 677, 66 L.Ed.2d 584. If the privilege were to yield to a defendant‘s
{¶ 59} Brunson, however, encourages us to look to the federal courts that have addressed the alleged conflict between a defendant‘s right to confrontation and the witness‘s attorney-client privilege and to adopt a balancing test to determine whether the attorney-client privilege yields to the defendant‘s right to confrontation. Federal courts that have addressed this alleged conflict have found that the privilege may yield if it is necessary to ensure the level of cross-examination guaranteed by the
{¶ 60} While the federal courts employ various analyses to reach their conclusions, a consistent question is asked: whether the defendant has other means to effectively cross-examine the witness without the privileged statements. See Blackwell at 501; Jenkins at 1392. Most courts answering this question have determined that use of the privileged statement is unnecessary for the defendant to have constitutionally effective cross-examination when other means to cross-examine the witness are available. See Neku at 263-264. In very few circumstances have the federal courts found that a defendant‘s right to confrontation has trumped a person‘s attorney-client privilege. See Salem v. North Carolina, 374 F.Supp. 1281, 1283 (W.D.N.C.1974); Imwinkelried, The New Wigmore: A Treatise on Evidence: Evidentiary Privileges, at Section 11.4.2.
2. Lake was cross-examined effectively without the recorded statement
{¶ 61} The parties agree that this situation is unique. The state‘s disclosure of the recorded statement “let the cat out of the bag” so to speak, providing Brunson with Lake‘s thoughts and Lake‘s attorney‘s advice on Lake‘s proffer statement; this
{¶ 62} Lake‘s credibility and his involvement in the crime was raised numerous times at trial and during his cross-examination. The jury heard evidence about Lake‘s lifestyle—his use of marijuana and his delinquency at work. The jury also heard evidence that Lake may have played a role in the crime despite his assertions that he was not involved. Lake made inconsistent statements about how he ended up riding in a car with Hollins and Brunson to the Cooley Lounge. And Lake made inconsistent statements about being asleep in the car during the robbery; he also described to officers the types of bags the defendants allegedly brought back with them after robbing the bar. Additionally, one bar patron testified that Lake sent her daughter a friend request on Facebook months after the incident. The bar patron informed police of the request because Lake was not a family friend, and she was concerned that his request was connected to the homicide. This testimony effectively places Lake‘s credibility, involvement in the crime, and character in question.
{¶ 63} But even if we were to conclude that Brunson could not cross-examine Lake effectively without using the recorded statement, we need not determine whether Brunson‘s right to cross-examination trumps Lake‘s attorney-client privilege, because it is apparent from the facts presented at trial that Brunson cannot demonstrate a reasonable probability that but for his inability to cross-examine Lake using the recorded statement, the result of the trial would have been different. See Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, at ¶ 130. Even without Lake‘s testimony, the evidence against Brunson is strong. Brunson‘s phone calls from jail implicated him in the crime. DNA evidence from the discarded cup affirmatively places Brunson at the crime scene as one of the
{¶ 64} Therefore, we reject Brunson‘s argument that Lake‘s attorney-client privilege should have yielded to Brunson‘s right to confrontation.
C. Silence at sentencing
1. Brunson has forfeited all but plain error
{¶ 65} In his first proposition of law, Brunson challenges the trial court‘s consideration of his decision to remain silent and waive allocution in finding that he lacked remorse under
{¶ 66} The state maintains that Brunson has forfeited this issue because his counsel did not object to that specific consideration at the trial level. The state concedes that Brunson‘s counsel raised an issue about the court‘s consideration of Brunson‘s silence at the presentence investigation meeting but notes that Brunson‘s counsel failed to challenge the trial court‘s assertion that it could use Brunson‘s waiver of allocution in its lack-of-remorse consideration. The state argues, however, that the trial court did properly consider Brunson‘s silence as evidence of his lack of remorse because some adverse inferences are permissible at sentencing. Additionally, the state contends that even if the trial court erred, the sentence would have been the same given the other factors considered by the trial court that demonstrate Brunson‘s lack of remorse.
{¶ 67} We find that Brunson has forfeited all but plain error because his attorney failed to object to this specific sentencing issue at trial. West, ___ Ohio St.3d ___, 2022-Ohio-1556, ___ N.E.3d ___, at ¶ 2. And because Brunson has failed
2. This proposition of law is reviewable
{¶ 68} The parties do not contest the reviewability of this issue. However, given our recent decisions in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, and State v. Bryant, ___ Ohio St.3d ___, 2022-Ohio-1878, ___ N.E.3d ___, regarding an appellate court‘s ability to review a trial court‘s sentencing findings under
{¶ 69} This proposition of law challenges whether a trial court properly considered a certain factor in its sentencing decision under
{¶ 70} Brunson‘s challenge of the trial court‘s consideration of his constitutional right to remain silent in its evaluation of his lack of remorse—a sentencing factor under
3. Lack of remorse and the Fifth Amendment right to remain silent
{¶ 71} The issue presented in this case is whether a defendant‘s silence may be considered by a trial court as a demonstration of that defendant‘s lack of remorse for purposes of sentencing. We find that the trial court did err in considering Brunson‘s silence as a factor in its lack-of-remorse analysis.
a. For a person to have remorse, that person must have committed a wrong
{¶ 72} A trial court is required to consider whether “the offender shows no genuine remorse for the offense” in its recidivism determination in developing a defendant‘s sentence.
{¶ 73} The
{¶ 74} The right to remain silent is “as broad as the mischief against which it seeks to guard.” Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), overruled in part on other grounds by Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Estelle at 468. And the
{¶ 75} A defendant‘s right to remain silent extends past trial and through sentencing, Estelle at 462-463, because liability for the crime with which the defendant is charged continues until the sentence has been imposed, Mitchell v. United States, 526 U.S. 314, 328-330, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). “‘The essence of this basic constitutional principle is “the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel
{¶ 76} Though the rule about negative inferences arguably goes beyond the text, history, and purpose of the
{¶ 77} While Mitchell did not answer whether a negative inference about a defendant‘s silence may bear upon a remorse or responsibility determination, the Supreme Court‘s decision in White v. Woodall, 572 U.S. 415, 422, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014), is informative. In Woodall, the Supreme Court commented that Mitchell, in fact, may permit some negative inferences regarding a
c. A lack of remorse is necessarily related to factual determinations about the crime
{¶ 78} Based on the Supreme Court‘s precedent, we know generally that negative inferences from a defendant‘s silence are not permitted under the
{¶ 79} It is true that the state has no burden under
{¶ 81} Because “remorse” is a loaded term and showing remorse requires a person to acknowledge that he or she committed an offense, a finding of a lack of remorse necessarily goes “to factual determinations respecting the circumstances and details of the crime” (emphasis sic), Mitchell, 526 U.S. at 328, 119 S.Ct. 1307, 143 L.Ed.2d 424, because it implicates the defendant‘s role in the crime. For a criminal defendant who pleaded not guilty and took the case to trial, thus maintaining his or her innocence, a finding of a lack of remorse based on the defendant‘s silence is to use that silence to infer the defendant‘s involvement in the crime. If the trial court is permitted to use the defendant‘s silence to infer his or her involvement in the crime, the defendant “might reasonably feel compelled to trade the certainty of incrimination by silence for the possibility of incrimination by statement.” State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 40 (O‘Connor, J., concurring). Such an inference would violate the
{¶ 83} For these reasons, we conclude that when a defendant has maintained his or her innocence by pleading not guilty and has taken the case to trial, the trial court errs when it considers the defendant‘s silence to be a demonstration of that defendant‘s lack of remorse for purposes of sentencing under
4. Brunson cannot demonstrate a reasonable probability that but for the trial court‘s consideration of his silence, his sentence would have been different
{¶ 84} Brunson maintains that the trial court‘s error guarantees him a new sentencing hearing. The state maintains that the error had no significant effect on Brunson‘s sentence because there were many other factors that supported the trial court‘s recidivism determination and the overall sentence imposed. After reviewing the record, we agree with the state that this error did not affect Brunson‘s sentence.
{¶ 85} A defendant‘s lack of remorse is only one of five factors a trial court considers when evaluating the defendant‘s risk of recidivism under
{¶ 86} Additionally, the trial court is required to consider the seriousness of the conduct and other relevant factors to achieve the purposes and principles of sentencing. As for the seriousness of the crime, the trial court considered the harm to the victims and the manner in which that harm was inflicted, reciting the details
{¶ 87} Therefore, Brunson cannot prevail on this issue.
IV. CONCLUSION
{¶ 88} We reaffirm our prior holdings that a person waives the attorney-client privilege with regard to direct communications had with his or her attorney either by expressly consenting to the waiver or by voluntarily revealing privileged communications on the same subject in a nonprivileged context. See Jackson, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, at paragraph one of the syllabus; McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985, at paragraph one of the syllabus;
{¶ 89} We also hold that while there may be circumstances in which the attorney-client privilege may yield 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 cross-examine Lake at trial using the recorded statement.
{¶ 90} Additionally, we hold that a trial court errs when it considers a defendant‘s decision to waive allocution and remain silent at sentencing as demonstrating that defendant‘s lack of remorse when the defendant pleaded not guilty and took the case to trial. While the trial court erred in considering Brunson‘s
Judgment affirmed.
DONNELLY, STEWART, and BRUNNER, JJ., concur.
O‘CONNOR, C.J., and KENNEDY, J., concur in judgment only.
DEWINE, J., concurs in judgment only, with an opinion.
DEWINE, J., concurring in judgment only.
{¶ 91} I concur in the majority‘s judgment affirming Nigel Brunson‘s convictions and sentence. As the majority notes, every proposition of law raised by Brunson in this appeal has been forfeited and he has failed to establish plain error. I would decide the case on that basis alone. But because the majority goes further, I add a few observations concerning some of the dicta in the majority opinion.
{¶ 92} First, I am skeptical that
{¶ 93} Additionally, I cannot join the majority‘s conclusion that the trial court violated Brunson‘s constitutional protection against self-incrimination in considering Brunson‘s silence at sentencing as being indicative of his lack of remorse. Because Brunson did not assert his right against self-incrimination at the sentencing hearing, it makes no sense to decide whether a court may consider the
{¶ 94} The
{¶ 95} The United States Supreme Court has expounded on the history of the right:
[T]he privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber—the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. The major thrust of the policies undergirding the privilege is to prevent such compulsion.
(Citations omitted.) Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). Thus, the privilege protects those who are suspected of having committed a crime from being subjected to “the cruel trilemma of self-accusation, perjury or contempt that defined the operation of the Star Chamber, wherein
{¶ 96} It is true that the United States Supreme Court has recognized that the privilege against self-incrimination can in some contexts be invoked during the sentencing phase of a criminal proceeding. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (applying the
{¶ 97} But the Supreme Court has stopped well short of endorsing the view advocated by the majority opinion today. In Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), a divided court held that a sentencing judge may not consider a defendant‘s failure to testify in “determining facts of the offense at the sentencing hearing,” id. at 330. Significantly, though, Mitchell was a case in which the state had the burden of establishing additional facts at sentencing. See id. (“The Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege” [emphasis added]). Thus, Mitchell prohibits only the drawing of an adverse inference for the purpose of establishing adjudicative facts at sentencing. See also id. at 341 (Scalia, J., dissenting) (pointing out the complete lack of historical support for the notion that the
{¶ 98} There is little to support the notion that the protection against self-incrimination precludes consideration of a defendant‘s lack of remorse evinced through a refusal to make an unsworn statement at sentencing. See, e.g., Burr v. Pollard, 546 F.3d 828, 832 (7th Cir.2008) (“silence can be consistent not only with exercising one‘s constitutional right, but also with a lack of remorse,” the latter of
{¶ 99} We need not resolve these questions here, however, for the simple reason that Brunson did not assert his
{¶ 100} Thus, I would not find that the trial court plainly erred in violation of Brunson‘s
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.