State v. Brunson

Citations

• 218 N.E.3d 765
• 171 Ohio St. 3d 384
• 2022 Ohio 4299

Syllabus

Criminal law—Waiver of attorney-client privilege—Sixth Amendment right to confrontation—R.C. 2929.12(D)(5)—Fifth Amendment right to remain silent—Codefendant who became a state witness pursuant to proffer agreement did not voluntarily waive his attorney-client privilege when state disseminated to all parties during discovery recording of conversation between codefendant and his attorney, because codefendant and his attorney believed they were having private conversation in police-station interview room when recording was made—Codefendant's suppression-hearing testimony did not reveal substance of privileged communications with his attorney and therefore did not constitute voluntary waiver of his attorney-client privilege—Defendant failed to establish a violation of his Sixth Amendment right to confrontation because he did not demonstrate reasonable probability that but for his inability to cross-examine codefendant using recording of attorney-client privileged communication between codefendant and his counsel, result of defendant's trial would have been different—Trial court erred in considering defendant's decision to waive allocution and remain silent at sentencing hearing in its evaluation of defendant's lack of remorse under R.C. 2929.12(D)(5) when defendant pleaded not guilty to offenses with which he was charged and exercised his right to jury trial, but error did not affect sentence imposed, because defendant's sentence would have been the same given other factors trial court considered under R.C. 2929.12(D)—Judgment affirmed.