State v. Flynn , 2024 Ohio 941 ( 2024 )

[Cite as State v. Flynn, 2024-Ohio-941.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellant,
v.
BRIAN FLYNN,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 23 MA 0076
Criminal Appeal from the
Youngstown Municipal Court, Mahoning County, Ohio
Case Nos. 2022 CRB 1356Y – 2022 CRB 1369Y
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. James Vivo and Atty. Adam V. Buente, Youngstown City Law Department, for
Plaintiff-Appellant and
Atty. Keith A. Washburn and Atty. Kay E. Cremeans, Fraternal Order of Police, for
Defendant-Appellee.
Dated: March 13, 2024
–2–
HANNI, J.
{¶1} Plaintiff-Appellant, the State of Ohio, appeals from a Youngstown Municipal
Court judgment dismissing 14 misdemeanor counts of dereliction of duty against
Defendant-Appellee, Brian Flynn.
{¶2} At all relevant times, Flynn was employed by the Youngstown Police
Department (YPD) as a lieutenant. Flynn’s job duties included investigating potential
Internet Crimes Against Children (ICAC). Suspicions arose that Flynn was not properly
following procedures regarding these investigations. These suspicions lead to an Internal
Affairs (IA) investigation by the YPD. Lieutenant Brian Butler, a staff inspector for the
YPD, was assigned to handle the IA investigation.
{¶3} In February 2021, Lt. Butler gave Flynn a “Garrity” notice. In the next month,
Flynn made several statements in the IA investigation, which were reduced to writing (the
Garrity material). The Garrity material, along with other material that Lt. Butler compiled,
was delivered to Attorney Jeffrey Moliterno, an assistant prosecutor with the Youngstown
City Law Director’s Office, where it remained for some time.
{¶4} The Youngstown City Law Director at the time, Attorney J. Jeffrey Limbian,
arranged for an outside agency to conduct a criminal investigation into Flynn’s actions,
separate from the IA investigation. He contracted with Detective Brian Breeden from the
Summit County Sheriff’s Office to investigate the matter. In reviewing material provided
to him from the Law Director’s Office, Det. Breeden identified some Garrity materials,
which he kept separate from his criminal investigation.
{¶5} On October 24, 2022, 14 complaints were filed against Flynn in the
Youngstown Municipal Court. The complaints alleged Flynn was the designated contact
person within the YPD to receive, assess, and act upon “Cyber Tips” from the ICAC Data
System and although Cyber Tips were received, Flynn intentionally failed to review,
assess, and act upon them. The complaints further alleged Flynn intentionally instructed
subordinate officers to ignore and disregard the Cyber Tips. Each complaint charged
Flynn with one count of dereliction of duty, a second-degree misdemeanor in violation of
R.C. 2921.44(B). The affidavit of Attorney Limbian accompanied each complaint.
{¶6} This case concerns the potential use of “Garrity” materials.
Case No. 23 MA 0076
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{¶7} A Garrity statement is “a public employee’s statement given during an
internal investigation under the threat of the employee's termination from office[.]” State
v. Jackson, 125 Ohio St.3d 218, 2010-Ohio-621, 927 N.E.2d 574, ¶ 1, citing Garrity v.
New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The United States
Supreme Court has held that the protection against self-incrimination prohibits the use of
statements made under threat of removal from office in later criminal proceedings. Id. at
¶ 13, citing Garrity, at 499-500.
{¶8} The Supreme Court later held that when a person is granted immunity to
compel his or her testimony, that testimony and any evidence derived from it cannot be
used against the declarant in a later criminal proceeding. Id. at ¶ 14, citing Kastigar v.
United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The State may not
make direct or derivative use of an employee’s statement that was compelled under threat
of the employee’s removal from office in a subsequent criminal proceeding. Id.{¶9} On February 23, 2023, Flynn filed motions for a Kastigar hearing and orders
prohibiting any use of Garrity statements/evidence and an alternative motion to dismiss
the charges against him.
{¶10} The trial court held a hearing on Flynn’s motions on May 4, 2023, where it
heard testimony from Det. Breeden and Lt. Butler. The trial court found there was no
evidence to contradict Det. Breeden’s testimony that he did not use any Garrity materials
in conducting his criminal investigation or in reaching his conclusions. The court noted,
however, there was no evidence presented by either party to indicate whether the Garrity
materials were or were not used in the criminal investigation by individuals other than Det.
Breeden. It also stated there was no evidence presented as to whether Garrity materials
were or were not used by the State in deciding to charge Flynn nor was there any
evidence presented as to whether Garrity materials have or have not been used by the
State in the preparation of the criminal case for trial. The court found the State did not
prove that the evidence it intended to use at trial was derived from legitimate sources
wholly independent of the Garrity materials.
{¶11} Based on its findings, the trial court found that Det. Breeden was aware of
the Garrity materials but that he did not use them in completing his part of the criminal
investigation. However, the court also found that the State failed to affirmatively prove
Case No. 23 MA 0076
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that no other person was involved with the criminal investigation. And furthermore, the
court found the evidence clearly showed that the Garrity materials were in the possession
of the Law Director’s Office for months prior to the charges being filed. Thus, the court
found that the State failed to affirmatively establish that the Garrity materials were not
used in the criminal investigation nor in the Law Director’s decision to file charges.
Additionally, it found the State did not affirmatively prove that the evidence it intended to
use at trial was derived from legitimate sources wholly independent of the Garrity
materials. Accordingly, the court dismissed the charges against Flynn.
{¶12} The State filed a timely notice of appeal on July 5, 2023. It now raises three
assignments of error.
{¶13} The State’s first assignment of error states:
THE TRIAL COURT ERRED IN ITS APPLICATION OF THE
GARRITY/KASTIGAR PRONGS BECAUSE THE STATE OF OHIO
SUCCESSFULLY PRODUCED SUFFICIENT EVIDENCE NECESSARY
TO PERMIT THE CASE TO PROCEED TO TRIAL.
{¶14} Here, the State asserts that it met its burden of proof at the Garrity hearing.
It claims it proved by way of Det. Breeden’s testimony that the evidence he compiled was
derived from legitimate, independent sources. The State asserts that Det. Breeden’s
testimony was itself the required denial of the use of Garrity material. And it points to Det.
Breeden’s testimony that he knew to keep his investigation separate from any internal
investigation and that he did not use any personnel information. Finally, the State notes
that the trial court found there was no evidence to contradict Det. Breeden’s testimony
that he did not use any Garrity materials in his investigation and there was no evidence
indicating whether Garrity materials were used by someone other than Det. Breeden.
{¶15} Quoting State v. Conrad, 50 Ohio St.3d 1, 4, 552 N.E.2d 214 (1990), the
Ohio Supreme Court has explained the relevant test:
“[T]he Kastigar court established a two-prong[ed] test that the prosecution
must satisfy where a witness makes the claim that his or her immunized
testimony was used: (1) the government must deny any use of the
accused’s own immunized testimony against him or her in a criminal case;
Case No. 23 MA 0076
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and (2) the government must affirmatively prove that all of the evidence to
be used at trial is derived from sources wholly independent of immunized
testimony.” (Emphasis sic.)
Jackson, 2010-Ohio-621, at ¶ 18. The Court went on to hold that: “the state makes
derivative use of a Garrity statement both when the prosecutor presents to the grand jury
testimony from a witness to a Garrity statement and when the prosecutor reviews a Garrity
statement in preparation for trial.” Id. at ¶ 25. Again citing Conrad, the Court stated that
when compelled testimony is used against the witness who provided it, any error cannot
be harmless. Id. at ¶ 29, citing Conrad, at 5. The remedy is dismissal of the indictment.
Id. “When the state fails to prove that it did not make any use of a Garrity statement in
obtaining an indictment, the indictment must be dismissed.” Id.
{¶16} In the present case, Flynn was charged with misdemeanors, not felonies.
So there was no indictment. But Garrity and Kastigar apply equally to misdemeanors.
See State v. Kirk, 12th Dist. Clinton No. CA2009-09-015, 2010-Ohio-1287; State v.
Brocious, 2d Dist. Clark No. 2002CA89, 2003-Ohio-4708. The burden then was on the
State at the hearing to prove that it did not use any Garrity materials in deciding to file the
misdemeanor charges against Flynn or in preparation of trial.
{¶17} At the hearing, Det. Breeden testified as follows. In 2021, Det. Breeden’s
supervisor assigned him to investigate the matter regarding Flynn after his supervisor
was contacted by the YPD. (Tr. 20-21). The detective testified that when his investigation
involves a police officer, he proceeds in a manner so as to avoid using information
gathered in the officer’s personnel or disciplinary file. (Tr. 22-23). He stated that his
criminal investigation must be conducted separately from any internal investigation so as
to comply with Garrity. (Tr. 23).
{¶18} In investigating Flynn, Det. Breeden stated that he requested certain
information from the YPD. In an email “dump”, he did receive an email between internal
affairs and Flynn. (Tr. 25). Det. Breeden testified that he disregarded that email because
he could not include it in his investigation. (Tr. 25). He compiled a binder of all of the
information he obtained during his investigation. (Tr. 25). The detective delivered that
binder to the YPD. (Tr. 26). Det. Breeden testified that he was fully aware of the inability
of the State to use Flynn’s IA investigation in a criminal case and that he prepared his
Case No. 23 MA 0076
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binder relating to the criminal case independently of any of the prohibited areas of
information. (Tr. 27).
{¶19} As part of his investigation, Det. Breeden requested from the YPD all emails
and communications related to ICAC and Flynn. (Tr. 36). A few of the emails he was
provided in response contained Garrity material. Exhibit C was an email between Flynn
and Flynn’s FOP representative discussing responses to the IA questions. (Tr. 31-32).
Exhibit E was an email from Lt. Butler to Flynn containing follow-up questions in the IA
investigation. (Tr. 33-34). Exhibit I was an email from Flynn to Lt. Butler containing the
answers to the lieutenant’s IA questions. (Tr. 38). Det. Breeden saw and disregarded
each of these Garrity emails. (Tr. 32, 34, 38, 40). When Det. Breeden returned the
records he had received to the Youngstown City Law Department, he advised the law
director that there were some items within his records request that he believed were IA
related and which the detective disregarded. (Tr. 40).
{¶20} Lt. Butler also testified. He stated that he runs the IA division at the YPD.
Lt. Butler testified that Flynn was given his Garrity rights on February 23, 2021. (Tr. 60).
He stated that at some point during his investigation, the Youngstown City Law
Department asked him for a copy of his IA file dealing with Flynn. (Tr. 60). In response,
Lt. Butler provided the law department with a binder containing his IA investigation. (Tr.
61). The lieutenant stated that the binder included Flynn’s answers to IA questions, in
other words, Garrity materials. (Tr. 61, 71). He could not remember the date he provided
the binder to the law department but he testified the binder remained with the law
department for months before he retrieved it. (Tr. 61). Lt. Butler stated that he gave the
binder to the law department at the request of law department attorney, Jeff Moliterno,
who was representing the city at a pre-disciplinary meeting with Flynn. (Tr. 62). Atty.
Moliterno’s supervisor was Atty. Limbian, the city law director. (Tr. 62).
{¶21} The evidence presented supports the trial court’s findings. It revealed the
following.
{¶22} Lt. Butler conducted the IA investigation. Det. Breeden conducted the
criminal investigation. Thus, the two investigations were conducted independently from
each other. Det. Breeden became aware of the existence of Garrity materials obtained
during the IA investigation, but he was able to put them aside and not consider them. The
Case No. 23 MA 0076
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trial court believed Det. Breeden’s testimony that he did not consider the Garrity material
in conducting his investigation.
{¶23} But “Jackson, Conrad, and Kastigar specifically prohibit any use by the
prosecutor of a witness' immunized statement.” Kirk, 2010-Ohio-1287, ¶ 18. Prior to the
criminal charges being filed, Lt. Butler turned over his binder containing all of the
information obtained during his IA investigation, including the Garrity materials, to the
Youngstown City Law Department. Turning over the Garrity materials from the IA
investigation to the law department created a substantial burden for the City to overcome
to comply with the Kastigar test. The city law department, at the request of one of its
attorneys, was in possession of the IA binder including the Garrity materials for quite
some time. When Lt. Butler was asked how long the binder was in the possession of the
city law department, he responded: “You know, I want to say months. But I, it seemed
like a longer period. To my memory it seemed like a very long time.” (Tr. 62). And each
of the misdemeanor complaints filed against Flynn was accompanied by a probable cause
affidavit of the city law director.
{¶24} The State bears the burden to prove that “no use was made of the
immunized statement[.]” Id. In this case, the State was unable to meet its burden. While
the State was able to prove that Det. Breeden did not use the Garrity materials, it did not
offer any evidence, let alone prove, that the Garrity materials were not used by the law
department in deciding to file the complaints against Flynn. The Garrity materials were
in the possession of the law department for a significant amount of time and the law
director is the one who filed the probable cause affidavits to charge Flynn. The State
could not explain exactly how long the Garrity materials were with the city law department
or how those materials were protected from infiltrating the criminal investigation. In light
of these facts, the State had to present evidence demonstrating that it did not use the
Garrity material at all in deciding to file charges against Flynn. The burden was on the
State and it did not meet this burden
{¶25} Accordingly, the State’s first assignment of error is without merit and is
overruled.
{¶26} The State’s second assignment of error states:
Case No. 23 MA 0076
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THE TRIAL COURT ERRED IN DISMISSING THE CHARGES AGAINST
FLYNN BECAUSE THE LAW DEPARTMENT’S MERE POSSESSION OF
THE GARRITY MATERIALS DID NOT, IN ITSELF, CONSTITUTE A
GARRITY VIOLATION.
{¶27} The State claims the fact that it possessed both Garrity-protected material
and an independent investigation report at the same time is not dispositive of whether a
Garrity violation occurred. Instead, it claims the court was to look to whether it used the
immunized material.
{¶28} The State is correct so far as the fact that it possessed Garrity materials is
not dispositive of whether a Garrity violation occurred. But as discussed in the first
assignment of error, the burden was on the State to prove that it did not use the Garrity
materials in its possession. And the State did not offer any evidence to prove this. It only
presented evidence that Det. Breeden did not use the Garrity materials in his
investigation. The burden was not on Flynn to show that the State used the Garrity
materials.
{¶29} Accordingly, the State’s second assignment of error is without merit and is
overruled.
{¶30} The State’s third assignment of error states:
THE TRIAL COURT ERRED BECAUSE ITS DISMISSAL OF THE
CHARGES IS INCONSISTENT WITH THE APPLICATION OF FIFTH
AMENDMENT PROTECTIONS.
{¶31} The State argues here that the trial court erred in dismissing the indictment
after it found that neither party provided evidence that a Garrity violation in fact occurred.
It asserts there was no evidence that the internal affairs investigation was used to procure
the charges against Flynn. Thus, the State contends dismissal of the charges was
inconsistent with the application of the Fifth Amendment.
{¶32} The State’s argument here takes issue with the fact that the trial court found
neither party provided evidence that a Garrity violation in fact occurred.
{¶33} In examining a Garrity case, the Second District set out the protections of
the Fifth Amendment:
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“The Fifth Amendment provides that no person ‘shall be compelled in any
criminal case to be a witness against himself.’ The Amendment not only
protects the individual against being involuntarily called as a witness against
himself in a criminal prosecution but also privileges him not to answer official
questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal
proceedings.”
State v. Schimmel, 2017-Ohio-7747, 85 N.E.3d 774, ¶ 16 (2d Dist.), quoting Lefkowitz v.
Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), citing McCarthy v.
Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924).
{¶34} And the Ohio Supreme Court has held that when the State fails to prove
that it did not make any use of a Garrity statement in obtaining an indictment, dismissal
is the appropriate remedy. Jackson, 2010-Ohio-621, ¶ 29. Thus, dismissal of the charges
against Flynn in this case was the proper remedy.
{¶35} Accordingly, the State’s third assignment of error is without merit and is
overruled.
{¶36} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, J., concurs.
Robb, P.J., concurs.
Case No. 23 MA 0076
[Cite as State v. Flynn, 2024-Ohio-941.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Youngstown Municipal Court, Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.