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State ex rel. Healea v. Tucker

Court of Appeals of Missouri, Eastern District, First Writ Division

June 6, 2017

State of Missouri ex rel Shayne Healea, Relator,
The Honorable Frederick P. Tucker, Respondent.

         Writ of Prohibition and Mandamus Shelby County Circuit Court Cause No. 15SB-CR00046


          Colleen Dolan, Presiding Judge

         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.[1] 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.

         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 ...

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