Opinion
No. ED105348
06-06-2017
State of Missouri ex rel Shayne Healea, Relator, v. The Honorable Frederick P. Tucker, Respondent.
Writ of Prohibition and Mandamus Shelby County Circuit Court
Cause No. 15SB-CR00046 OPINION
Shayne Healea ("Relator") has filed a petition seeking a Writ of Prohibition and/or Mandamus to (1) prevent the trial court ("Respondent") from unsealing a Special Master's report (the "Report") that contains attorney-client privileged communications; (2) order Respondent to hold a hearing and issue a ruling on Relator's objections to the Report; (3) order Respondent to disqualify the Attorney General's Office and appoint a replacement special prosecutor; (4) order Respondent to order the Columbia Police Department (the "CPD") to purge its server of any recorded, privileged conversation between Relator and his attorney; (5) order Respondent "to exclude all evidence gained after the attorney-client phone conversation recording"; and/or (6) "[i]f this Court finds Relator's ability to receive a fair trial has been irretrievably broken," Relator prays for our Court to direct Respondent to dismiss all pending charges against Relator. Our Court issued a preliminary order in prohibition directing Respondent to file his answer and suggestions in opposition and ordered him to refrain from all action in the premises until further notice.
Our preliminary order in prohibition is made permanent in part and quashed in part. We make our preliminary order in prohibition permanent with regard to language in the Report which references the contents of Relator's privileged communication with his attorney. Our preliminary order of prohibition is made permanent in part and quashed in part as it pertains to the unsealing of certain documents. We also issue a permanent writ of mandamus and order Respondent to disqualify the Attorney General's Office and appoint a special prosecutor. We quash our preliminary order with regards to Relator's request to exclude all evidence obtained subsequent to his privileged conversation with his attorney. We further issue a permanent writ of mandamus and direct Respondent to hold a hearing and rule on Relator's request to have the servers of the CPD purged of any conversation Relator had with his attorney. We also order Respondent to notify the CPD so that it may be present and participate in the hearing.
Relator sought both writs of prohibition and mandamus. Initially, we issued only a preliminary order in prohibition. We have made the preliminary order in prohibition permanent in part as to some relief and issued a permanent writ of mandamus, in the first instance, as to some relief. We have done this to more accurately reflect the remedies granted by our Court. The distinction is more technical than substantive, and our Court places much greater value in the latter than the former. See St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 148 (Mo. App. E.D. 1984) ("The distinction between mandamus and prohibition is at best blurred, at worst nonexistent...[s]ince prohibition would lie here, we see no reason to deny the applicability of mandamus. Under the circumstances of the present case, we will not engage in fine, anachronistic distinctions of nomenclature. We refuse to revert to the hypertechnical niceties of Common Law Pleading where the title of a pleading was of more importance than its content."). Moreover, [t]he purpose of requiring a preliminary order at the outset of a writ proceeding is to require some judicial evaluation of the claim to determine if the respondent should even be required to answer the allegations...[it] satisfies notice to a person that an action has been filed so that the person may appear and defend against the action, because the preliminary order often prohibits further action until further order of the court U.S. Dep't of Veterans Affairs v. Boresi, 396 S.W.3d 356, 365 (Mo. banc 2013). In the case before us, the preliminary order in prohibition gave Respondent notice of all the issues addressed, which Respondent did in fact respond to by filing his Answer and Suggestions in Opposition to Writ of Prohibition and/or Mandamus. (emphasis added).
I. Factual and Procedural Background
Relator is charged with four counts of second-degree assault and one count of leaving the scene of a motor vehicle accident. These charges stem from Relator backing his truck into a restaurant, injuring four patrons, and then leaving the scene of the accident. The accident occurred on October 24, 2014. After fleeing the scene, Relator was arrested by the CPD.
At the CPD station, Relator twice asked to call his attorney and speak with him privately. The arresting officer placed Relator in a holding cell where the officers of the CPD can, and did, record the audio and video of Relator's conversation with his attorney. Relator was unaware that he was being recorded. Eventually, the recording was given to the Office of the Attorney General. More than two years after receiving the recording, the recording was finally relinquished to Relator.
Based on Relator's belief his Sixth Amendment right to a fair trial and attorney-client privilege had been violated, he filed a Motion to Suppress Evidence. Relator requested Respondent to appoint a special master to conduct a hearing to address Defendant's Memorandum of Law Regarding Violation of the Sixth Amendment Attorney Client Privilege and Right to a Fair Trial, in which Relator prayed that "all pending charges be dismissed with prejudice and for all other relief deemed proper." Respondent granted Relator's request to appoint a special master. The Special Master held a closed hearing for the State and Relator to argue their cases. On December 29, 2016, the Special Master filed his Report and accompanying exhibits with the Shelby County Circuit Court; the Report and exhibits were sealed to protect any privileged communications between Relator and his attorney. The Special Master found the CPD committed a Sixth Amendment violation, which he noted in the Report. However, he did not recommend what the appropriate remedy should be, aside from opining that "a remedy less drastic than complete dismissal of the charges will be adequate to protect Defendant's right to a fair trial."
After Relator received a copy of the Report, he noticed the Report "contained portions of the actual content of the attorney-client phone call." On January 26, 2017, Relator filed his objections to the Report. Respondent held a hearing to discuss the appropriate remedy for the violation on February 9, 2017. At that hearing, Respondent agreed to exclude any evidence "regarding whether or not defendant refused a breath test," however, he declined to exclude evidence of Relator's blood samples. On February 17, 2017, Relator filed a Motion to Reconsider based on his previous objections to the use of the Report. On March 2, 2017, Respondent heard the parties' arguments regarding Relator's Motion to Reconsider and his Motion to Suppress Evidence, which sought to exclude "all evidence of [the CPD's unconstitutional] search and/or seizure(s) and the fruits thereof." At the hearing, Respondent directed the Circuit Clerk to seal the Report and all exhibits at that time, and then unseal the Report on March 10, 2017, "and make [it] available for public viewing."
In response to Respondent ordering the Report to be unsealed on March 10, Relator petitioned our Court for a Writ of Prohibition and/or Mandamus seeking various forms of relief. After reviewing the record and giving due consideration to both parties' arguments, we dispense with further briefing as permitted under Rule 84.24(i), and we address each of Relator's requests for relief infra in Sections III - VII.
II. Attorney-Client Privilege
The importance of protecting an individual's attorney-client privilege cannot be overstated. Missouri courts have emphasized it is vital that this privilege be preserved:
The Missouri Supreme Court "has spoken clearly of the sanctity of the attorney-client privilege. The relationship and the continued existence of the giving of legal advice by persons accurately and effectively trained in the law is of greater societal value ... than the admissibility of a given piece of evidence in a particular lawsuit. Contrary to the implied assertions of the evidence authorities, the heavens will not fall if all relevant and competent evidence cannot be admitted.State ex rel. Behrendt v. Neill, 337 S.W.3d 727, 729 (Mo. App. E.D. 2011) (quoting State ex rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604, 607 (Mo. banc 1993)). "Confidentiality is essential if attorney-client relationships are to be fostered and effective." Id. (citing State ex rel. Great American Ins. Co. v. Smith, 574 S.W.2d 379, 383-84 (Mo. banc 1978)). The attorney-client privilege is "absolute in all but the most extraordinary situations[.]" State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 366 n.3 (Mo. banc 2004). Accordingly, we seek to protect a client from any infringement upon her privilege to any extent within reason.
III. Writ of Prohibition for Unsealing Special Master's Report
The Report was scheduled to be unsealed on March 10, 2017. We issued a preliminary order to temporarily prevent the Report's unsealing. After reviewing the record, we find Relator's Sixth Amendment and due process rights are sufficiently compelling interests to make our preliminary order in prohibition permanent and seal portions of the Report from public view. A. Standard of Review—Writ of Prohibition
A writ of prohibition is an extraordinary remedy, and its issuance is only appropriate in one of three circumstances: "(1) to prevent the usurpation of judicial power when the trial court lacks jurisdiction; (2) to prevent the court from acting in excess of jurisdiction or to remedy an abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not made available in response to the trial court's order." State ex rel. Dep't of Soc. Servs., Div. of Children Servs. v. Tucker, 413 S.W.3d 646, 647 (Mo. banc 2013).
Relator requests we issue a writ of prohibition to prevent the unsealing of the Report. "Application of the attorney-client privilege is a matter of law, not judicial discretion, and is properly a matter for prohibition." State ex rel. Chase Resorts, Inc. v. Campbell, 913 S.W.2d 832, 838 (Mo. App. E.D. 1995). "Where disclosure of 'privileged material' is alleged, prohibition is available, since an erroneous disclosure cannot be repaired on appeal." State ex rel. Polytech, Inc. v. Voorhees, 895 S.W.2d 13, 14 (Mo. banc 1995). Accordingly, Relator's request falls under the second and third circumstances, where a writ of prohibition may be appropriate to prevent a lower court from exceeding its authority to act and/or prevent Relator from suffering irreparable harm.
B. Discussion
First, we must note that our discussion may be limited to a fairly cursory review of the relevant facts in some instances. This is done out of necessity to prevent any further infringement upon Relator's Sixth Amendment and due process rights.
While cognizant of the importance of protecting these rights, we must also consider the significant right of the public to have access to our courts. "Missouri's constitution expressly provides in Article 1, Section 14 that the courts of justice shall be open to every person." State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 713 (Mo. App. E.D. 2000). There is a presumption in favor of upholding the public's right to access court records, but the presumption may be overcome if there is a "compelling justification" for sealing court records. State ex rel. Winkler v. Goldman, 485 S.W.3d 783, 788 (Mo. App. E.D. 2016) (citing Transit Cas. Co. ex rel. Pulitzer Publ'g Co. v. Transit Cas. Co. ex rel. Intervening Emps., 43 S.W.3d 293, 301 (Mo. banc 2001)). We are obligated to "demonstrate a recognition" of the public's presumptive right to access and explain our basis for preventing such access. Id. Nonetheless, as the United States Supreme Court has noted, this "right is qualified and must be carefully balanced with the defendant's absolute Sixth Amendment right to a fair trial[.]" Autrey, 19 S.W.3d at 713 (citing Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 9 (1986)).
Although Winkler concerns a writ of mandamus to keep privileged communications sealed, the case is instructive on this matter. Like our Court found in Winkler, we find protecting Relator's Sixth Amendment and due process rights—including his right to a fair trial—are compelling justifications for preventing portions of the Report from being unsealed. Winkler, 485 S.W.3d at 788. As our Court noted in Winkler, we are "keenly aware of the gravity of the public's interest in open proceedings," as well as the presumption favoring the public's right to access court records. Id. at 788-89. Nevertheless, our Court found these concerns were overridden by the potential threat to the relator's Sixth Amendment and due process rights. Id. at 789. As in the case before us, the relator in Winkler was engaged in an ongoing criminal case. Id. Because unsealing the court records may have infringed on the relator's attorney-client privilege and her right to a fair trial, our Court made its preliminary order in mandamus permanent, prohibiting the court records from being unsealed. Id. at 789-91.
See supra note 1.
The facts of the present case are strikingly similar to the facts in Winkler. Although we understand the importance of permitting the public to access court records, Relator's Sixth Amendment rights and due process rights would be jeopardized if privileged portions of the Report were unsealed, and he would be left without an adequate remedy on appeal. Accordingly, our preliminary order of prohibition is made permanent in part and quashed in part. Respondent is prohibited from ordering the Circuit Clerk of Shelby County to unseal paragraph 10 of the Report. Respondent shall order the Circuit Clerk of Shelby County to unseal the Report except for paragraph 10. Respondent will have a continuing duty to not allow anything to be filed which contains attorney-client privileged communications, unless it is filed under seal.
IV. Disqualifying the Prosecuting Attorney and Replacing with a Special Prosecutor
A. Standard of Review — Writ of Mandamus
"Missouri appellate courts have the authority to issue and determine original remedial writs, including the extraordinary writ of mandamus." Id. at 789 (citing Mo. Const., art. V, § 4.1). Mandamus is not a writ of right; it is a discretionary writ that will only lie when there is a clear, unequivocal, and specific right. State ex rel. Hewitt v. Kerr, 461 S.W.3d 805 (Mo. banc 2015). However, a writ of mandamus cannot be used to establish a legal right. State ex rel. Isselhard v. Dolan, 465 S.W.3d 496, 498 (Mo. App. E.D. 2015). It may only be used to enforce an already existing right. Id. "Mandamus is appropriate where a party has no remedy through appeal, and ordinarily does not control the exercise of discretionary powers." Winkler, 485 S.W.3d at 789.
Winkler is the only Missouri case that addresses disqualification of a prosecuting attorney's office and appointment of a special prosecutor when a criminal defendant's Sixth Amendment rights are in question. Id. at 791. ("This case is unique. The parties have not provided, and our research has not revealed, Missouri cases regarding motions to disqualify a prosecuting attorney's office for violating a criminal defendant's Sixth Amendment rights."). Although we defer to the trial court's factual findings, we review the application of the law to those facts de novo. Id. at 789. In Winkler, our Court determined we should apply "strict scrutiny" to requests for disqualification of a prosecuting attorney's office, and "we resolve any doubts in favor of disqualification." Id. at 791. Winkler highlights the importance of preserving the public trust in the judicial system. Id.
B. Appearance of Impropriety
Unlike concerns relating to Relator's Sixth Amendment and due process rights, protecting the integrity of criminal proceedings concerns society at large. See State v. Boyd, 560 S.W.2d 296, 297 (Mo. App. W.D. 1977). "The preservation of the public trust in both the scrupulous administration of justice and in the integrity of the bar is paramount." Winkler, 485 S.W.3d at 791. Obviously, we strive to ensure criminal proceedings are fair, "[b]ut that alone is not sufficient. Instead, 'justice must satisfy the appearance of justice.'" State v. Lemasters, 456 S.W.3d 416, 422-23 (Mo. banc 2015) (emphasis in original) (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)).
Society's confidence in the judicial system—and, in particular, the criminal justice system—depends on society's perception that the system is fair and its results are worthy of reliance. For that reason, it is essential that trials be fair...[a] procedure that appears to be unfair can jeopardize society's confidence in the judicial system as a whole even if the procedure is—in fact—fair. Accordingly, this Court must pursue fairness both in the law's substance and in its appearance.Id. (emphasis added). Our Supreme Court has held that the same standard used for determining judicial disqualification should be used to determine disqualification of a prosecutor: disqualification should occur when "a reasonable person would have factual grounds to find an appearance of impropriety and doubt the impartiality of the court." Id. at 423 (quoting Anderson v. State, 402 S.W.3d 86, 91 (Mo. banc 2013)). If a prosecutor is disqualified under this standard, then the remainder of that prosecutor's office "must be disqualified if a reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial." Id.
Respondent makes numerous references to "prejudice" in his suggestions in opposition, contending that Relator must show prejudice to warrant some of his requested relief. Respondent specifically references two cases from Connecticut: State v. Lenarz, 301 Conn. 417, 451 (Conn. 2011) and State v. Abbate, Superior Court, judicial district of New Britain, Docket No. H15NMV100365585, 2011WL 4953495, *4 (Sep. 28, 2011). Indeed, both cases are consistent with the Special Master's position. In the Report, the Special Master relies on a case from the Supreme Court of Nebraska to contend a remedy only needs to be "sufficient to eliminate any prejudice to [Relator's] fundamental right to a fair trial before an impartial jury." See State v. Bain, 292 Neb. 398, 872 N.W.2d 777 (Neb. 2016). We agree that a prejudicial effect against a defendant's opportunity to have a fair trial is an important concern. Nonetheless, Missouri case law has made it clear that a showing of prejudice is not a requirement to provide a drastic remedy, such as disqualifying a prosecuting attorney's office. In cases determining the fitness of a prosecutor, "a reasonable person may well conclude that the facts create an appearance of impropriety and cast doubt on the fairness of the trial, even though there is no actual prejudice [.]" Lemasters, 456 S.W.3d at 425 (emphasis added); see also State ex rel. Burns v. Richards, 248 S.W.3d 603, 605 (Mo. banc 2008) (explaining that Missouri's appellate courts have "correctly held that the defendant need not prove actual knowledge, prejudice, or even actual impropriety" in deciding to "revers[e] convictions because the trial court erred in refusing to grant a motion to disqualify...the prosecuting attorney") (emphasis in original).
Presumably, this is the case referenced in the report. The actual cite given is "State v. Blair, 292 N.W. 398, 872 N.W. 2nd 777 (Supreme Court of Nebraska 2016)."
C. Discussion
In the case before us, members of the Attorney General's Office were in possession of the secretly recorded communication for over two years before relinquishing it to Relator. Despite the Attorney General's Office's contention that "no member of [its office] has personal knowledge of the content of the disc" and that the recording did not contain discussions of trial strategy (according to the Report), the lengthy delay in surrendering the recording to Relator reflects poorly on the criminal justice system—especially when an individual's Sixth Amendment and due process rights are at issue. Moreover, the Attorney General's Office never logged the recording as evidence, and to this date, it has not offered an explanation for the unique treatment of the recording compared to its other evidence. "In making our decision, we apply strict scrutiny to motions to disqualify," and "we resolve any and all doubts in favor of disqualification." Winkler, 485 S.W.3d at 791. After reviewing all of the facts and circumstances, we believe a reasonable person would have doubts about the fairness of the trial if handled by the Attorney General's Office. Therefore, we direct Respondent to disqualify the Attorney General's Office from Relator's case and appoint a special prosecutor.
V. Ordering a Hearing on Relator's Objections to the Special Master's Report
This issue is now effectively moot, as we have addressed the concerns raised in Relator's objections and granted him several remedies: we have ordered Respondent to disqualify the Attorney General's Office, appoint a special prosecutor, and hold a hearing and make a ruling on Relator's request to require the CPD to purge its servers (See Sec. VI).
The aim of Relator's objections was to have the trial court "dismiss all pending charges" due to the violation of Relator's constitutional rights, or, if the court deemed a "remedy less than outright dismissal [was] proper," the Relator suggested two of the same remedies as he requests in the writ before us: (1) the exclusion of all evidence acquired after the privileged conversation began; and (2) have the CPD purge its computers of all recorded privileged communication. Accordingly, the petition for writ of mandamus with regard to this issue is quashed.
Moreover, we find Respondent has already heard Relator's objections and made a ruling on them. Relator, the Attorney General's Office, and Respondent discussed the objections at the February 9 hearing. Furthermore, similar to Rule 68.01 ("Masters in Circuit Courts") in civil cases, we believe Respondent had discretion to adopt, modify, or reject all or any part of the Report. Country Club of the Ozarks, LLC v. CCO Investments, LLC, 338 S.W.3d 325, 329 (Mo. App. S.D. 2011). We also note that Missouri Rules of Criminal Procedure do not address "special masters," but our Supreme Court has appointed a special master pursuant to Rule 68.03 ("Masters in Appellate Courts") in criminal matters concerning constitutional rights. State ex rel. Clemons v. Larkins, 475 S.W.3d 60, 63 (Mo. banc 2015). Relator filed a motion to reconsider, and the arguments on this motion and Relator's motion to suppress—which greatly overlaps with Relator's motion to reconsider—were heard by Respondent at a hearing on March 2, 2017.
VI. Purging Video Server of Privileged Communications
Relator has established a clear, unequivocal right to have his constitutional rights protected. It is clear Relator's attorney-client privilege was breached because of the CPD's conduct, which the Special Master deemed to be a violation of the CPD's own policies. Furthermore, he found the CPD violated Missouri law; law enforcement agencies are required "to make a room or place available therein where any person held in custody under a charge or suspicion of a crime will be able to talk privately with his or her lawyer, lawyer's representative, or any authorized person responding to a request for an interview concerning his or her right to counsel." § 600.048.3. In sum, the Special Master found the CPD violated (1) Relator's Sixth Amendment rights, (2) the CPD's own policies, and (3) Missouri law (§ 600.048.3). Relator clearly has a right to keep his privileged conversations with his attorney confidential.
Section 900.8 of the CPD's policy manual reads: "Telephone calls between the detainee and his attorney shall be paid by the Department and shall be deemed confidential and shall not be monitored, eavesdropped upon or recorded." Moreover, § 900.9(3) of the policy manual states "[i]nterviews between attorneys and their clients shall not be monitored or recorded."
We see no justification for the CPD retaining access to the surreptitiously recorded conversation between Relator and his attorney. That being said, the CPD, is not a "party" to this litigation and has not had a chance to provide justification for keeping the recording on its servers. Accordingly, we order Respondent to rule on Relator's request to purge the servers after he holds a hearing on the matter and gives reasonable notice to all relevant parties: Relator, the CPD, and the special prosecutor.
VII. Excluding All Evidence Obtained After Recording the Privileged Conversation
Relator also requests our Court to direct Respondent to exclude all evidence obtained after the privileged phone conversation. At minimum, the evidence Relator seeks to suppress includes: (1) evidence of his blood test and (2) testimony from any CPD officer who was present at the department the night of Relator's privileged conversation (or any officer who had access to the recording). "Prohibition will lie when there is an important question of law decided erroneously that would otherwise escape review by this Court, and the aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision." Polish Roman Catholic St. Stanislaus Par. v. Hettenbach, 303 S.W.3d 591, 598 (Mo. App. E.D. 2010). Additionally, the Missouri Supreme Court has stated the "general rule [is] that mandamus will not lie if a specific and adequate remedy by appeal exists." State ex rel. Reser v. Martin, 576 S.W.2d 289, 290 (Mo. banc 1978).
Like in the vast majority of pretrial evidentiary rulings, neither an extraordinary writ of prohibition nor a writ in mandamus would be appropriate here; Relator has an adequate remedy by way of appeal. If Relator believes inadmissible evidence is being offered by the State, his appropriate course of action would be to (1) have his attorney make a timely objection to the evidence at trial to preserve it for appeal; and (2) in the event Relator is convicted, present the issue on appeal. "A defendant in a criminal case cannot challenge a pretrial evidentiary ruling...by seeking an extraordinary writ...[i]nstead, the defendant's objections must be timely raised at trial, preserved for appeal, and—if the defendant is convicted—properly presented on appeal." State ex rel. Tipler v. Gardner, 506 S.W.3d 922, 923-24 (Mo. banc 2017). Accordingly, the requested relief to exclude evidence obtained after the privileged communications is denied, as neither mandamus nor prohibition would be appropriate. Furthermore, we uphold Respondent's rulings regarding what evidence is admissible in Relator's case. However, we must add that Respondent shall have a continuing duty to prevent the use of privileged information and take reasonable steps to ensure the protection of Relator's constitutional rights. We also order the Attorney General's Office to avoid discussing or sharing any excluded information with the special prosecutor.
VIII. Conclusion
The preliminary order in prohibition is made permanent in part as to the unsealing of the Special Master's report and quashed in part; the privileged portions of the Report shall remain sealed. A permanent order of mandamus is issued directing Respondent to disqualify the Attorney General's Office from Relator's case and appoint a special prosecutor. The petition for writ of mandamus is quashed as to Relator's objections to the Special Master's report. A permanent writ of mandamus is issued directing Respondent to set a hearing, after giving reasonable notice to Relator, the CPD, and the special prosecutor, and make a ruling on Relator's request for the CPD to purge its servers. Additionally, the petition for writ of mandamus is quashed as to the exclusion of evidence obtained after Relator's privileged conversation. Finally, the relief granted will preserve Relator's right to a fair trial, and we deny his request to dismiss all of the charges against him.
We take this opportunity to reiterate the Supreme Court of Missouri's determination of the proper nomenclature when making a final determination on preliminary writs: "To facilitate greater clarity, this Court from this point forward will change its terminology in mandamus and prohibition cases by abandoning the words and phrases 'alternative writ,' 'absolute' and 'peremptory.' All initially issued writs in such cases shall be preliminary writs of mandamus or prohibition, as the case may be, that, upon final determination, shall be made quashed or made permanent." Unnerstall, 298 S.W.3d at 516. --------
/s/_________
Colleen Dolan, Presiding Judge Lisa S. Van Amburg, J., concurs.
Sherri B. Sullivan, J., concurs.