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State v. Kunzer

Court of Appeals of Ohio, Third District, Crawford

July 22, 2019


          Appeal from Crawford County Common Pleas Court Trial Court No. 18-CR-0044

          Howard A. Elliott for Appellant

          Micah R. Ault for Appellee


          ZIMMERMAN, P.J.

         {¶1} Defendant-appellant, Matthew Kunzer ("Kunzer"), appeals the August 17, 2018 judgment entry of sentence of the Crawford County Court of Common Pleas. For the reasons that follow, we affirm the judgment of the trial court.

         {¶2} On February 6, 2018, Kunzer was indicted by the Crawford County Grand Jury on nineteen counts: Counts One, Two, Three, Eight, Ten, Eleven, Thirteen, Fifteen, Seventeen, and Nineteen of intimidation in violation of R.C. 2921.03, third-degree felonies; Counts Four, Five, and Six of aggravated menacing in violation of R.C. 2903.21(A), first-degree misdemeanors; Count Seven of resisting arrest in violation of R.C. 2921.33(A), a second-degree misdemeanor; and Counts Nine, Twelve, Fourteen, Sixteen, and Eighteen of retaliation in violation of R.C. 2921.05(A), third-degree felonies. (Doc. No. 7). Kunzer appeared for arraignment on February 20, 2018 and entered pleas of not guilty. (Doc. No. 6).

         {¶3} After a jury trial on July 11, 2019, Kunzer was convicted of the nineteen counts in the indictment. (July 11, 2018 Tr. at 1-5, 291-294); (Doc. Nos. 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31).

         {¶4} On August 17, 2018, the trial court sentenced Kunzer to 36 months in prison on Counts One, Two, Three, Eight, Ten, Eleven, Thirteen, Fifteen, Seventeen, and Nineteen, respectively. (Doc. Nos. 34, 38). The prison terms imposed by the trial court in Counts One and Two were ordered to be served consecutively and the prison terms in Counts Three, Seven, Eight, Ten, Eleven, Thirteen, Fifteen, Seventeen, and Nineteen were ordered to be served concurrently to the consecutive terms imposed in Counts One and Two, for an aggregate sentence of 72 months in prison. (Id.); (Id.). For the purposes of sentencing, the trial court merged Counts Four, Five, Six, Nine, Twelve, Fourteen, Sixteen, and Eighteen.[1](August 17, 2018 Tr. at 20); (Doc. No. 34). Kunzer filed a notice of appeal on September 17, 2018 and raises five assignments of error. (Doc. No. 41). For ease of discussion, we will discuss Kunzer's second assignment of error, followed by his first assignment of error, and thereafter, we will conclude with his fifth, third, and fourth assignments of error together.

         Assignment of Error No. II

         The trial court erroneously admitted testimony in contravention of the defendant-appellant's right to attorney-client privilege where the defendant-appellant asserted such right.

         {¶5} In his second assignment of error, Kunzer argues that the trial court abused its discretion by admitting evidence in contravention of the Ohio Rules of Evidence that were protected by attorney-client privilege. In particular, he contends that he had a reasonable expectation that his communications with his trial counsel's law clerk and secretary were privileged and could not be used against him at trial. Kunzer argues that the trial court abused its discretion by admitting his statements made to a law clerk during a jail-house interview and the questions posed to his prior trial counsel's secretary about the consequences of failing to return from a medical furlough.

         Standard of Review

         {¶6} Generally, the admission or exclusion of evidence lies within the trial court's discretion, and a reviewing court should not reverse absent an abuse of discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). See also State v. Doe, 101 Ohio St.3d 170, 2004-Ohio-705, ¶ 14 (applying this standard to the admissibility of attorney-client privilege claims). An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).


         {¶7} Kunzer argues that his statement to trial counsel's law clerk that he was going to "bury these mother fuckers six feet under" and the question he posed to his prior trial counsel's secretary were protected by attorney-client privilege, and therefore, inadmissible. (July 11, 2018 Tr. at 164, 168, 170, 176, 178, 181, 232).

         {¶8} "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, ¶ 16, quoting Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081 (1998). Its ancient roots can be traced to the reign of Queen Elizabeth I. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 660 (1994), superseded by state statute on other grounds, Cobb v. Shipman, 11th Dist. Trumball No. 2011-T-0049, 2012-Ohio-1676, ¶ 34, citing 8 Wigmore, Evidence, Section 2290 (McNaughton Rev.1961) and Spitzer v. Stillings, 109 Ohio St. 297, 302 (1924). The attorney-client privilege "recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." McFarland v. W. Congregation of Jehovah's Witnesses, Lorain, Ohio, Inc., 9th Dist. Lorain No. 15CA010740, 2016-Ohio-5462, ¶ 67, quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677 (1981).

         {¶9} "In Ohio, the attorney client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law." State v. Hendron, 9th Dist. Summit Nos. 28067 and 28119, 2017-Ohio-352, ¶ 22 citing State ex rel. Leslie v. Ohio House Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 18. See State v. McDermott, 72 Ohio St.3d 570, 574 (1995). See also Evid.R. 501 (providing that: [t]he privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience.) R.C. 2317.02 reads in its pertinent part:

          {¶10} The following persons shall not testify in certain respects:

(A)(1) An attorney, concerning a communication made to the attorney by a client in that relation or concerning the attorney's advice to a client, except that the attorney may testify by express consent of the client or, if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client. However, if the client voluntarily reveals the substance of attorney-client communications in a nonprivileged context or is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the attorney may be compelled to testify on the same subject.

Hendon at ¶ 22, quoting R.C. 2317.02(A)(1).

         {¶11} "[T]he statutory privilege governs communications directly between an attorney and a client." McFarland at ¶ 66, quoting Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, ¶ 7. The statutory privilege only applies to the in-court testimony of the attorney and does not include agents, employees, or representatives of the attorney. McDermott at 573-574; See also R.C. 2317.02(A). But see McFarland at ¶ 66, citing State ex rel Dawson v. Bloom-Carroll Local Sch. Dist, 131 Ohio St.3d 10, 2011-Ohio-6009, ¶ 27. But see R.C. 2317.021 (noting the extension of the privilege to attorney's "agents, employees, and other representatives" has been recognized in cases of dissolved corporations within the definition of the "client" in civil cases).

R.C. 2317.02(A) provides a testimonial privilege - i.e., it prevents an attorney from testifying concerning communications made to the attorney by a client or the attorney's advice to a client. A testimonial privilege applies not only to prohibit testimony at trial, but also to protect the sought-after communications during the discovery process.

Hendon at ¶ 22, quoting Squire, Sanders & Dempsey, L.L.P. at ¶ 18, quoting Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, ¶ 7, fn. 1. Accordingly, "[a]n attorney under R.C. 2317.02(A) cannot be compelled to testify concerning a communication made to him by his client absent a waiver of the attorney-client privilege." Hendon at ¶ 22, quoting McDermott at 693. R.C. 2317.02(A) "provides the exclusive means by which privileged communications directly between an attorney and a client can be waived." Id. at ¶ 23, citing Greger at paragraph one of the syllabus.

         {¶12} Although the statutory privilege applies only to the in-court testimony of the attorney, "the common law attorney-client privilege reaches beyond the proscription against testimonial speech and protects against any dissemination of the information obtained from the confidential relationship. Hendon at ¶ 23, citing State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port. Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 24, quoting Leslie at ¶ 18. See also, McFarland at ¶ 66 citing Am. Motors Corp., v. Huffstutler, 61 Ohio St.3d 343, 348 (1991). See also State v. Post, 32 Ohio St.3d 380, 385 (1995), overruled in part on other grounds, McDermott at 574 (concluding that a defendant's statements to a polygraph expert retained by and assisting defense counsel were protected by common law attorney-client privilege). Common law attorney-client privilege pertains to circumstances:

(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.

Hendon at ¶ 22-23, quoting Nageotte v. Boston Mills Brandywine Ski Resort, 9th Dist. Summit No. 26563, 2012-Ohio-6102, ¶ 8. See also McFarland at ¶ 67, quoting Leslie at ¶ 21, quoting Reed v. Baxter, 134 F.3d 351, 355-356 (6th Cir.1998). The common law attorney-client privilege protects against the disclosure of oral, written, and recorded information, unless the privilege is waived. Greger at ¶ 25, quoting Leslie at ¶ 26, quoting Am. Motors Corp. at 348. At common law, a client may waive the attorney-client privilege either expressly or by conduct implying a waiver. Id.

         {¶13} Nevertheless, there are situations where a lawyer may disclose privileged information without the client's waiver. See Prof.Cond.R. 1.6(b) (waiver of the statutory attorney-client privilege). See also Moskovitz at 661 (concluding "the privilege does not attach in a situation where the advice is sought by the client and conveyed by the attorney relates to some future or fraudulent transaction" applying the crime-fraud exception to common law attorney-client privilege). Squire, Sanders, & Dempsey, L.L.P. at ¶ 3 (recognizing common-law exceptions to attorney-client privilege which include the crime-fraud exception "to prevent the concealment of * * * client wrongdoing").

         {¶14} Statutory waiver involves the client's relinquishment of the protections afforded by R.C. 2317.02(A) once they have attached; however, there are exceptions to attorney-client privilege when the disclosure falls into the category of situations in which the privilege does not attach to the communications in the first instance and is therefore excluded from the operation of the statute as those outlined in Prof.Cond.R. 1.6(b), and similarly, common-law-waiver based on recognized exceptions to the common-law attorney-client privilege. See Squire, Sanders, & Dempsey, L.L.P. at ¶ 3. See also Restatement of the Law 3d, Governing Lawyers, Chapter 5, Topic 2, Title C, Introductory Note (distinguishing between waivers of the privilege and exceptions to it) and § 82 (Client Crime or Fraud); Black's Law Dictionary (11th Ed.2019) (defining "exception," "statutory exception," "exemption," and "waiver") available at Westlaw.

         {¶15} The applicability of a privilege * * * is a question of law that this Court reviews de novo. State v. Miller, 2018-Ohio-1172, ¶ 9 citing McFarland at ¶ 65. "A de novo review requires an independent review of the trial court's decision without any deference to [its] determination." Id. citing State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.

         {¶16} In order to address the applicability of the statutory or common law attorney-client privilege, we must review the record. We note that since Kunzer made his statement at issue to a law clerk and a secretary, not his lawyer, the statutory privilege is not applicable here. See McDermott at 573-574. See also R.C. 2317.02(A). However, we now must determine whether the common law attorney-client privilege applied in this instance, and whether the statement made and question posed are, therefore, admissible.

         {¶17} Kunzer's prior trial counsel's law clerk testified to the following statements:

Q I'm going to ask you to, if you could, do you recall specifically what Mr. Kunzer said?
A Specifically what was said, something to the effect of, I'm going to bury these motherfuckers six feet under or put ...

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