State v. RickabaughState v. Rickabaugh
Thе State petitioned for discretionary appeal from an order granting Defendant-Ap-pellee’s, Rickabaugh, motion to suppress statements. We allowed the State’s petition and ordered the proceedings below stayed pending the outcome of the appeal. The circuit court’s decision is affirmed.
On July 9, 1982, Rickabaugh’s combine caught fire and burned. After hearing rumors that the State was investigating the fire’s сause, Rickabaugh contacted Wally Eklund, an attorney from Gregory.
As a result of various phone calls and letters, Eklund and State’s Attorney Steele arranged a polygraph examination for Ric-kabaugh. Eklund suggested and it was agreed that he would hire and pay R.H. White, an independent polygraph tester, instead of using a DCI agent. Eklund then contacted Rickabaugh and in a letter to him stated that “[i]t would also be my intention to make it clear that no statements made during the taking of the polygraph examination or the results of the examination itself could be used as evidence.”
On May 27, 1983, White tested Ricka-baugh at his Sioux City office. Agent Muller, Sheriff Edinger, and Eklund were also present at the examination site, but not in the examinаtion room. The State requested Muller and Edinger’s attendance to assist White if he had any questions concerning the State’s investigation.
At the exаmination’s conclusion, Eklund went into White’s office. White told Ek-lund that Rickabaugh had something to tell him. White indicated that Rickabaugh told him a different version of the facts during the examination and Rickabaugh proceeded to relate those facts to Eklund. Eklund and Rickabaugh spoke and at the еnd of their conversation, Eklund stated that he was not sure he could represent Ricka-baugh anymore. Rickabaugh became upset and wаlked out, but later returned and stated, “I didn’t say anything. If he [White] said I did, I’m going to call you [White] a God damne'd liar.”
Prior to Rickabaugh’s leaving, Eklund asked White if he cоuld mail the examination report to the State. White told Eklund he would send the report to Eklund and he could then do what he wanted to do with the report. Prior to leaving, Eklund instructed White to at least tell Muller and Edinger “what happened.” White then proceeded to tell Muller and Edinger of Rickаbaugh’s confession.
On January 16, 1984, Rickabaugh filed a motion to suppress his statements that he made to White. The lower court granted the motion аnd the State subsequently appealed the order.
On appeal, the State contends that the trial court erred in suppressing Ricka-baugh’s statement to White based on the attorney-client privilege. We are not convinced the trial court’s findings of fact were clearly erroneous, against a clear preponderance of the evidence or not supported by credible evidence.
State v. Spoonemore,
A cliеnt has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client
(1) between himself or his representativе and his lawyer or his lawyer’s representative,
(2) between his lawyer and the lawyer’s representativef.]
Four minimum elements must exist to invoke the privilege: (1) a client; (2) a confidential communication; (3) the commu
The first issue presented to this court is whether Rickabaugh’s statements to White are protected within the attorney-client privilege.
Prior to White’s employment, rumors were circulating concerning an investigation of Rickabaugh’s combine fire. Eklund contacted Steele concerning a polygraph and they agreed that if Rickabaugh passed the polygraph test, the State would not continue its investigation. Because Eklund was not qualified to determine thе truthfulness of Rickabaugh’s statements through a scientific method, he hired White. As a result of his expertise, White was instrumental in assisting Eklund in rendering legal services tо Rickabaugh.
Further, Rickabaugh’s communications were confidential.
The final issue is whether Ricka-baugh waived the attorney-client privilege. Only a client can waive the attorney-client privilege if he voluntarily or through his attorney discloses the communication’s contents or advice to someone outside the relationship. Catch The Bear, supra, at 647. The State has the burden of proving that a waiver occurred. Id.
The facts demonstrated that a waiver did not occur. The record is void of any statements or actions taken by Rickabaugh which indicate that he consented to a waiver. Further, Eklund advised Rickabaugh that anything stated during the polygraph examination could not be used against him.
That State relied heavily on the faсt that Rickabaugh was present when Eklund indicated to White that he should tell Muller and Edinger “what happened” during the examination to demonstrate Riсkabaugh’s waiver of the attorney-client privilege. The State is attempting to turn inadmissible evidence into admissible evidence by playing a game in semantics. The State is stretching the statement “what happened” to mean the entire conversation, instead of the pass-fail result. Therefore, the record does not demonstrate that Rickabaugh impliedly or explicitly consented to his attorney waiving the attornеy-client privilege on his behalf.
The State’s remaining arguments lack merit and we will not address them. We affirm the circuit court’s decision.