State v. Flynn

[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

–3–

{¶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

–4–

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

–5–

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

–6–

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

–7–

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

–8–

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:

Case No. 23 MA 0076

–9–

“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.