State v. Brunson

Summary

The Supreme Court of Ohio affirmed Nigel J. Brunson’s convictions and sentence for offenses arising from a robbery and shooting at the Cooley Lounge. The court held that a codefendant did not voluntarily waive attorney-client privilege by participating in a conversation with counsel that was unknowingly recorded and disseminated by the state, and that the codefendant’s suppression-hearing testimony did not reveal the substance of privileged communications. The court further held that the trial court erred by considering Brunson’s silence at sentencing as evidence of lack of remorse, but found the error nonprejudicial.

Holdings

1. Lake did not voluntarily waive the attorney-client privilege because he and his counsel believed they were having a private conversation in an interview room after police left at counsel's request, even though the recording continued without their knowledge.
2. Lake did not waive the attorney-client privilege through his suppression-hearing testimony because, although the testimony was voluntarily given, it did not reveal the substance of the recorded privileged communication.
3. The attorney-client privilege did not yield to Brunson's Sixth Amendment confrontation right on these facts, and Brunson failed to show a reasonable probability that the trial result would have been different without use of the recording.
4. When a defendant has pleaded not guilty, maintained innocence, and taken the case to trial, a sentencing court errs under the Fifth Amendment when it considers the defendant's silence and waiver of allocution as evidence of lack of remorse under R.C. 2929.12(D)(5).
5. The sentencing error was harmless and did not require resentencing because Brunson's sentence would have been the same based on the other recidivism and seriousness factors considered by the trial court.

Questions Presented

1. Whether Lake waived the attorney-client privilege by participating in a recorded private conversation with his attorney in a police-station interview room.
2. Whether Lake waived the attorney-client privilege through testimony at a suppression hearing.
3. Whether Brunson's Sixth Amendment right to confrontation required that he be allowed to cross-examine Lake using the recorded privileged communication.
4. Whether the trial court erred under the Fifth Amendment by considering Brunson's silence and waiver of allocution at sentencing as evidence of lack of remorse under R.C. 2929.12(D)(5).
5. Whether any sentencing error required resentencing.

Disposition

affirmed