Opinion
No. 348672
01-21-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. NICOLE CHRISTINE JOLY, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Jackson Circuit Court
LC No. 18-002466-FC Before: BOONSTRA, P.J., and TUKEL and LETICA, JJ. PER CURIAM.
In this interlocutory appeal by leave granted, defendant, Nicole Christine Joly, challenges the trial court's denial of his motion to suppress evidence. Defendant is charged with one count of first-degree arson, MCL 750.72, and two counts of torturing or killing animals, MCL 750.50b. We reverse and remand for further proceedings consistent with this opinion.
People v Joly, unpublished order of the Court of Appeals, entered August 26, 2019 (Docket No. 348672).
Defendant identifies as a man and we will use masculine pronouns when referring to him.
The trial court stayed the proceedings pending the outcome of this appeal.
Defendant's home was intentionally set on fire and his two dogs perished in the blaze. Detective Aaron Grove investigated defendant as a suspect. Detective Grove obtained a warrant to search defendant's new home and the electronic devices of defendant and his partner, Christina Moore-Sharon. Detective Grove forwarded the seized electronic devices to a laboratory for forensic analysis. The analyst searched for certain words related to the arson and discovered an email. In that email, defendant shared the names of the individuals to whom he had given his lawnmower and gas can. Detective Grove had been searching for those items because he believed they were connected to the fire. Detective Grove interviewed the individuals named in the email and retrieved the gas can and lawnmower.
Defendant moved to suppress the email on the ground that is was protected by the attorney-client privilege, as well as the derivative evidence obtained from it. The trial court determined that the email was not privileged and denied his motion. We disagree and conclude that the email itself is protected by the attorney-client privilege.
I. STANDARDS OF REVIEW AND LEGAL STANDARDS
"This Court reviews de novo a trial court's ruling on a motion to suppress." People v Steele, 292 Mich App 308, 313; 806 NW2d 753 (2011). However, we review a trial court's findings of fact for clear error. People v Hrlic, 277 Mich App 260, 262-263; 744 NW2d 221 (2007). We review questions of law regarding a motion to suppress de novo. People v Booker, 314 Mich App 416, 419; 886 NW2d 759 (2016). We also review constitutional challenges de novo. Hrlic, 277 Mich App at 262.
The United States Supreme Court has held that "[t]he attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co v United States, 449 US 383, 389; 101 S Ct 677; 66 L Ed 2d 584 (1981). Our legislature has codified the attorney-client privilege:
Any communications between attorneys and their clients . . . are hereby declared to be privileged and confidential when those communications are necessary to enable the attorneys . . . to serve as such attorney . . . . [MCL 767.5a(2).]Stated otherwise, communications are "privileged when they are made to counsel who is acting as a legal adviser and made for the purpose of obtaining legal advice." People v Compeau, 244 Mich App 595, 597; 625 NW2d 120 (2001). A defendant must "take reasonable precautions to keep his remark[s] confidential" in order to maintain the privilege. Id. at 597-598. "The purpose of the privilege is to enable a client to confide in an attorney, secure in the knowledge that the communication will not be disclosed." People v Johnson, 203 Mich App 579, 585; 513 NW2d 824 (1994). The privilege belongs to the client and only the client may waive it. Id.
II. ANALYSIS
In this case, Detective Grove testified that he started investigating defendant in January 2018 and he seized all electronic devices from defendant's new residence thereafter. An analyst searched those devices. And Detective Grove later located and seized the gas can and lawnmower that three witnesses had earlier reported seeing in defendant's backyard around the time of the fire. When asked how he had learned about the gas can, Detective Grove explained:
One of the parts of my portion of this investigation w[as] to seize electronic devices from [defendant and his partner]. I first started with a search warrant for their [new] residence on . . . just down the road from the incident location for this fire and seized electronic devices from them there. Those devices went to the State Police Lab in Lansing and I received a report for one of their phones or tablet, I don't recall which device, but it had an email referencing the gas can and who had it.The prosecution later clarified that the email was found in an electronic device belonging to Moore-Sharon. As described in the trial court's order, the email read:
My neighbor John has secured the gas can and my neighbor Eric has the mower[.] John believes he saw someone on the porch immediately before the fire[.] He says the city police have ignored him[.]The email led Detective Grove to talk to defendant's neighbor, Johnathon Church, about the gas can. Detective Grove asked Church about the gas can and how he obtained it. Church also testified that defendant asked him to hold onto the gas can. Defendant's email also led Detective Grove to defendant's other neighbor, Eric Sexton. Detective Grove retrieved the lawnmower from him. Detective Grove admitted that he knew the email was from defendant to someone in defense counsel's law firm. He also admitted that he was aware that defendant was corresponding with his attorney in the email.
About nine months after Detective Grove initiated his investigation, a warrant was issued for defendant's arrest. After defendant was bound over, he filed a motion to suppress the email and derivative evidence obtained from it. The trial court held that the attorney-client privilege did not protect the email because it "merely [contained] statements made by the defendant, [that were] not [made] for the purpose of obtaining legal advice, trial strategy or legal theories." The trial court further determined that defendant shared the email's contents with third parties when he gave the lawnmower and gas can to others and those "communications . . . severed the attorney-client privilege even if it existed." Because the trial court denied the motion, finding the email was not privileged, it did not address whether the derivative evidence should be suppressed.
We conclude that the trial court erred in denying defendant's motion to suppress the email because it was protected by the attorney-client privilege. We also remand to the trial court to address defendant's argument that the derivative evidence must be suppressed because a constitutional violation occurred.
On appeal, the prosecution does not dispute that the email was privileged. Instead, it asserts that it will not introduce the email at trial and that suppression of the derivative evidence is not warranted for a violation of the attorney-client privilege.
The record establishes that the attorney-client relationship had already formed between defendant and defense counsel when defendant emailed an employee of defense counsel's law firm about the location of the lawnmower and gas can. Detective Grove testified that the email was from defendant to an attorney from defense counsel's law firm and he knew that defendant was corresponding with his attorney. Additionally, the email to defense counsel involved legal advice or strategy because defendant disclosed information about the gas can and lawnmower to defense counsel, and it is undisputed that both the gas can and lawnmower were implicated in this criminal investigation. See Compeau, 244 Mich App at 597; Johnson, 203 Mich App at 584-585. Although the trial court correctly recognized that defendant was making statements to defense counsel in the email, it failed to consider the relationship between defendant and defense counsel and the context in which the email was sent. The record supports defendant's contention that he gave defense counsel information about the lawnmower and gas can in order for defense counsel to represent and advise him. Notably, defendant relayed additional information in his email suggesting that the police investigation was deficient. In context, this demonstrated that he was seeking legal advice or developing a trial strategy in the event that he was criminally charged. Therefore, the trial court clearly erred when it found that the email was not made "for the purpose of obtaining legal advice, trial strategy or legal theories."
The employee acted as an agent of the attorney. See Grubbs v K Mart Corp, 161 Mich App 584, 589; 411 NW2d 477 (1987).
Moreover, the trial court erred by determining that the email was not privileged because its contents were communicated to third parties. The trial court noted that defendant's communication to defense counsel was conveyed to third parties because defendant engaged in the "act[] of giving Church the gas can and the act of giving the mower to [Sexton] . . . ." However, the privilege is only waived when defendant discloses the privileged communications between defense counsel and defendant. Compeau, 244 Mich App at 597-598; see also In re Grand Jury Proceedings Oct. 12, 1995, 78 F3d 251, 254 (CA 6, 1996). Thus, defendant's earlier actions here did not waive the privilege as to the email itself. Moreover, although the email was found in Moore-Sharon's electronic device, there is no indication from the record that Moore-Sharon saw or read the email or that defendant communicated the contents of the email to her.
In conclusion, defendant's email was protected by the attorney-client privilege and should not be entered into evidence at trial. Because the trial court held that the email was not privileged, it did not analyze whether the fruit of the poisonous tree doctrine applies. We decline to address this issue for the first time on appeal.
We remand because defendant argues that the police action here violated his constitutional rights and not merely the attorney-client privilege. People v Marsack, 231 Mich App 364, 379; 586 NW2d 234 (1998) (stating that the fruit of the poisonous tree doctrine applies only when a defendant's constitutional rights are violated). --------
Accordingly, we reverse the trial court's denial of defendant's motion to suppress the email and we remand for the trial court to address defendant's contention that there was a constitutional violation requiring suppression of the derivative evidence via the fruit-of-the-poisonous-tree doctrine.
We do not retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Jonathan Tukel
/s/ Anica Letica