State v. Kosuda-Bigazzi

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STATE OF CONNECTICUT v. LINDA
KOSUDA-BIGAZZI
(SC 20341)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The defendant, who had been charged with murder and tampering with
physical evidence, filed a motion in the trial court to dismiss the charges
against her on the ground that the police prejudiced her prosecution
when they executed search warrants for her home and seized and exam-
ined privileged information that was thereafter published in their arrest
warrant application. The police had gone to the home that the defendant
shared with H, the defendant’s husband, to perform a wellness check
after H’s employer reported that he had not been seen in several months.
After observing human remains in the home, the police executed two
search warrants. During the second search, the police seized three sepa-
rate files from a filing cabinet. The first file, labeled ‘‘INCIDENT 2017,’’
contained about twenty-five pages, most of which were handwritten.
The second file, labeled ‘‘CRIMINAL DEFENSE ATTORNEY Oct 2017,’’
contained about 150 pages. The third file contained estate planning
documents. The police then obtained an arrest warrant for the defen-
dant’s alleged murder of H. The arrest warrant application included the
verbatim text of a handwritten, four page narrative from the seized
material that apparently described the events that led to H’s death. The
defendant alleged that, during the search of her home, the police read
and inspected two documents that were protected by the attorney-client
privilege, namely, the four page narrative and a document that reflected
her trial strategy, both of which, she claimed, the state could use in
preparation of its case against her in violation of her constitutional
rights to a fair trial and the effective assistance of counsel. The trial
court conducted an evidentiary hearing pursuant to State v. Lenarz (301
Conn. 417) to determine the extent of the violation of the attorney-client
privilege and the prejudice to the defendant, and whether the state’s
remedial actions and other remedies could serve to cure any prejudice.
During the hearing, the court accepted the parties’ written stipulation
that the contents of the second file were covered by the attorney-client
privilege. The court also heard the testimony of witnesses from the
state’s attorney’s office, who stated that they had acted to limit additional
exposure to potentially privileged materials by halting the investigation
until after the resolution of the Lenarz hearing and by having the case
handled by a different state’s attorney’s office. The court denied the
defendant’s motion to dismiss, concluding that the defendant failed to
establish that the contents of the first file were protected by the attorney-
client privilege or that much of the contents of the third file were
protected by that privilege. The court further determined that the preju-
dice to the defendant that was caused by the invasion of the attorney-
client privilege could be cured by a remedy short of dismissal of the
charges. The court also ordered the state to take certain remedial actions
to limit further prejudice to the defendant before prosecution could
resume. Following the court’s denial of the defendant’s motion to dis-
miss, the defendant appealed to this court pursuant to the statute (§ 52-
265a) permitting the Chief Justice to certify an appeal involving a matter
of substantial public interest and in which a delay may work a substantial
injustice. Held:
1. The defendant could not prevail on her claim that the trial court committed
clear error in determining that she had failed to establish that the docu-
ments in the first file and many of the documents in the third file were
protected by the attorney-client privilege:
a. The trial court did not abuse its discretion in precluding one of the
defendant’s expert witnesses, D, from testifying regarding the substance
of certain out-of-court statements that the defendant made to D regarding
the fact that she had created the documents in the first file for the
purpose of seeking legal advice, as those statements constituted inadmis-
sible hearsay and were properly admitted only as a basis for D’s expert
opinion, and the record contained no other evidence that would serve
to establish the defendant’s intent when she created those documents;
moreover, the trial court did not abuse its discretion in precluding the
testimony of two other expert witnesses, W and S, as W and S had no
knowledge relating to the defendant’s intent in creating the documents
in the first file and, thus, could not have provided any information that
would have assisted the court as the trier of fact, and W’s and S’s
testimony would have been cumulative of D’s testimony and centered
on the ultimate issue of whether the defendant established that those
documents were privileged, which was a determination for the trial
court alone to make.
b. The defendant could not prevail on her claim that the manner in
which she maintained the documents in the first file established that
they were privileged; the location of the privileged second file next to
the first file in the filing cabinet did not serve to transfer the attorney-
client privilege from one file to another, and the defendant’s proximity
claim was contrary to the well established principle that the attorney-
client privilege must be established for each document separately.
c. The defendant could not prevail on her claim that the documents in
the first file were sufficient in and of themselves to be considered
privileged on the ground that their content was obviously useful to
preparing her defense: the defendant failed to establish whether the
handwritten documents in the first file describing her medical issues
and the incident that led to H’s death were created for the purpose of
seeking legal advice or for some other personal purpose, as the docu-
ments did not reflect notes describing actual communications or memo-
rializations of communications between the defendant and her attorney,
and the defendant did not adduce any additional evidence to establish
that she had created those documents for the purpose of seeking legal
advice or that she had communicated or intended to communicate those
documents to her attorney; moreover, the printouts of the defendant’s
medical records in the first file were preexisting documents that were
outside the scope of the attorney-client privilege, as they predated the
incident that gave rise to the attorney-client relationship at issue by
approximately nine years, and the defendant did not introduce evidence
to establish that those printouts were created for the purpose of seeking
legal advice.
d. Although the documents contained in the first file were substantively
identical to the documents in the privileged second file, the documents
in those two files were not the same and, thus, the first file was not
privileged: both files contained documents containing the narrative
describing the incident that led to H’s death, but they were not exact
copies, and there were many versions of the narrative that were told
in substantively different ways and were of different lengths and detail;
moreover, nothing in the first file suggested that the documents con-
tained therein were communications between the defendant and her
attorney or that they were created at the behest of an attorney for the
purpose of seeking legal advice; furthermore, the first file contained a
variety of documents, some of which appeared like journal entries,
others that were in a narrative style that described traumatic events,
and others that were preexisting documents, and the record did not
support the defendant’s claim that the state’s stipulation that the second
file was privileged should transfer to the first file.
e. The defendant could not prevail on her claim that the estate planning
documents in the third file should be covered by the attorney-client
privilege as communications made to an attorney for the purposes of
drafting a will: that file contained an executed will rather than a draft
of a will that would be considered a communication in the context of
a will dispute; moreover, other records and documents in the third file
were insufficient to support the defendant’s assertion that those records
and documents were communications inextricably linked to the giving
of legal advice, and the records and documents therein did not contain
anything suggestive of the defendant’s trial strategy.
2. The trial court did not abuse its discretion in determining that dismissal
of the charges against the defendant was not warranted and that the
state met its burden of showing, by clear and convincing evidence, that
the remedial steps it took could cure any presumed prejudice and prevent
future prejudice to the defendant: the court credited the testimony of
witnesses at the Lenarz hearing that the police officers’ exposure to
privileged materials was not intentional, and the state, once it was
alerted to the privileged nature of the documents, halted its investigation
of the defendant, created a taint team to remove privileged documents
before they could reach new prosecutors, removed the case from the
original investigative body, and assigned new prosecutors; moreover,
the defendant’s state constitutional (article first, § 19) right to individual
voir dire could serve to mitigate any prejudice by exposing whether
prospective jurors had been exposed to privileged materials and by
uncovering potential biases; furthermore, the trial court’s preclusion of
testimony by the defendant’s expert witness about media exposure of
the privileged materials did not prevent the defendant from demonstra-
ting the extent of the prejudice she suffered, as that expert’s testimony
was not relevant or sufficiently reliable and would not have assisted
the court in determining whether any prejudice could be remedied.
(One justice concurring separately)
Argued October 15, 2019—officially released April 8, 2020*
Procedural History
Information charging the defendant with the crimes
of murder and tampering with physical evidence, brought
to the Superior Court in the judicial district of New Britain,
where the court, Oliver, J., denied the defendant’s motion
to dismiss, and the defendant, upon certification by the
Chief Justice pursuant to General Statutes § 52-265a that
a matter of substantial public interest is involved, appealed
to this court. Affirmed.
Patrick Tomasiewicz, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with whom
were Sarah Hanna, assistant state’s attorney, and, on the
brief, Christian M. Watson, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. The principal issue in this interlocutory
public interest appeal, brought pursuant to General
Statutes § 52-265a,1 is whether police officers executing
a search and seizure warrant for the home of the defen-
dant, Linda Kosuda-Bigazzi, invaded her attorney-client
privilege to the extent that the charges of murder in
violation of General Statutes § 53a-54a and tampering
with physical evidence in violation of General Statutes
§ 53a-155 brought against her should be dismissed pur-
suant to State v. Lenarz, 301 Conn. 417, 22 A.3d 536(2011), cert. denied, 565 U.S. 1156, 132 S. Ct. 1095, 181
L. Ed. 2d 977 (2012). The defendant claims that the
trial court improperly denied her motion to dismiss
the charges because the police prejudiced all further
prosecution against her by examining, reading, and pub-
lishing privileged information that was in the arrest
warrant application, a prejudice so extreme that the
only appropriate remedy is dismissal of the criminal
charges, as we ordered in Lenarz.
The documents the defendant claims are privileged
had been located within three files—exhibits A, B, and
C—in a locked file cabinet in an office in the defendant’s
home. The parties stipulated that the privilege covered
all of the contents of exhibit B, a file labeled ‘‘CRIMINAL
DEFENSE ATTORNEY Oct 2017.’’2 The defendant asserts
that the privilege also covered the two other seized
files: one labeled ‘‘INCIDENT 2017’’ (exhibit A), and
one containing estate planning documents (exhibit C).
She contends that the documents located within exhibit
A are privileged because they are substantively identical
to some of the documents located within and next to
exhibit B. She contends that exhibit C is privileged
because it contains documents communicated to her
attorney for estate planning purposes. Ultimately, she
argues that the invasion of her attorney-client privilege
during the search of her home will prejudice her prose-
cution to such an extent that the only just remedy is
dismissal of the charges against her in connection with
the death of the decedent. She therefore moved to dis-
miss the criminal information, which the trial court
denied after conducting a twelve day hearing pursuant
to Lenarz (Lenarz hearing). For the reasons that follow,
we affirm the trial court’s order and denial of the defen-
dant’s motion to dismiss.
We agree with the trial court that the defendant failed
to establish that the documents within exhibits A and
C are protected by the attorney-client privilege for pur-
poses of the Lenarz hearing. The defendant did not
establish that the documents are communications or
that she created the documents with the intent to com-
municate them to an attorney for the purpose of seeking
legal advice. Regarding exhibit B, the record supports
the trial court’s unchallenged ruling that the privilege
covers certain documents contained within that file.3
We therefore conclude that the trial court did not abuse
its discretion in determining that the defendant was
prejudiced by the examination and seizure of the privi-
leged documents within exhibit B. However, we con-
clude that the trial court properly determined that the
state demonstrated, by clear and convincing evidence,
that the remedial actions the state has taken, and the
order that the trial court entered for further prosecution
of the case, as well as individual jury voir dire, can cure
the prejudice to the defendant. The state’s actions in
the present case therefore do not rise to the level of the
extreme prejudice demonstrated in Lenarz, and dis-
missal of the criminal information is not warranted. We
affirm the order of the trial court and the denial of the
motion to dismiss.
I
The following facts, as found by the trial court, and
procedural history are relevant to our review of the
defendant’s claims. On February 5, 2018, Officer Kevin
Mellon of the Burlington Police Department went to
the residence shared by the defendant and the decedent
to perform a wellness check on the decedent.4 The
decedent’s employer had not seen or heard from him
since August, 2017. Before Mellon entered the residence,
the state police barracks in Litchfield received a phone
call from Attorney Brian S. Karpe, who stated that the
defendant was inside the residence and that the police
should not enter until Karpe arrived at the home. Upon
his arrival, Karpe entered the residence ‘‘for a period
of time’’ and then ‘‘allowed the police inside to conduct
a limited search to check on [the decedent].’’ In the base-
ment of the residence, Mellon observed human remains
covered by a tarp. The Office of the Chief Medical Exam-
iner positively identified the remains as those of the
decedent.
That same evening, at about 11 p.m., Detective Michael
W. Fitzsimons, who was assigned to the state police West-
ern District Major Crime Squad, obtained a search and
seizure warrant for the residence ‘‘for potential evidence
relating to a crime involving the human remains found in
the basement.’’ The following day, a second search war-
rant issued, authorizing the police to search for evidence
relating to the crime of murder.
During the second search of the residence, the police
cut the locks on the file cabinet from which they seized
the three separate files. Those files became (1) defense
exhibit A—a file labeled ‘‘INCIDENT 2017,’’ containing
about twenty-five pages of mostly handwritten pages, (2)
defense exhibit B—a blue accordion file folder labeled
‘‘CRIMINAL DEFENSE ATTORNEY Oct 2017,’’ containing
about 150 pages, and (3) defense exhibit C—a file con-
taining estate planning documents. The day after the exe-
cution of the second search warrant, the police obtained
an arrest warrant charging the defendant with murder and
tampering with physical evidence. At the time the arrest
warrant was issued, the trial court granted the state’s
request to seal for fourteen days after the defendant’s
arrest the police affidavit that was submitted in support
of the arrest warrant application. The arrest warrant
application included the verbatim text of a handwritten,
four page ‘‘narrative,’’ apparently describing the events
leading to the death of the decedent.5
In moving to dismiss the criminal charges, the defen-
dant alleged that the police had read and inspected two
documents protected by the attorney-client privilege—
the narrative and a document reflecting her trial strat-
egy.6 According to the defendant, the state could use the
information in these documents ‘‘in plea negotiations,
witness preparation, jury selection, and case presenta-
tion, including cross-examination and closing argu-
ment, as well as in drafting suggested jury instructions.’’
She further argued: ‘‘Despite the best intentions and
efforts of the state’s attorney’s office, it will be humanly
impossible not to consider the privileged information
during plea negotiations, case preparation and the trial
of the matter.’’ According to the defendant, the actions
of the police will deprive her of her right to a fair trial
and her sixth amendment right to effective counsel.7
The trial court conducted the Lenarz hearing to explore
the extent of the invasion of the attorney-client privi-
lege, the prejudice to the defendant, and whether the
state’s remedial actions and any additional remedies
could serve to cure the prejudice, thereby protecting
the defendant’s rights to the assistance of counsel and
a fair trial.
The Lenarz hearing included testimony from numer-
ous law enforcement witnesses, including the state’s
attorney for the New Britain judicial district, Brian Pre-
leski, and an expert witness for the defendant, Attorney
Mark Dubois. Dubois, who was qualified by the court
as an expert in the field of attorney-client privilege,
reviewed the contents of defense exhibits A, B, and C
and offered his opinion as to whether the privilege
covered each document. State’s Attorney Preleski testi-
fied as to the remedies the state implemented to cure
any prejudice to the defendant as well as recommended
procedures for the future prosecution of the defendant.
The remedies included having the case handled by the
Hartford judicial district and a different state police
investigative unit, and having the New Britain State’s
Attorney’s Office act as an insulated ‘‘taint’’ team to review,
remove, and redact privileged documents, motions, and
transcripts before they could reach the Hartford judi-
cial district.
Having heard the evidence and considered the par-
ties’ positions, the trial court found as follows: Regard-
ing the documents contained within defense exhibit A,
the trial court found that the defendant had failed to
establish that those documents describing the incident
in question were privileged, specifically because she
failed to establish that she had created the documents
with the intent to provide them to counsel for the pur-
pose of obtaining legal advice. The court found that the
defendant failed to establish that the documents describ-
ing her medical condition were privileged because she
had made only vague and generalized assertions about
them that were insufficient to satisfy the narrowly con-
strued attorney-client privilege. The court also found
that, to the extent information in certain documents
could have been construed as trial strategy, it was ‘‘not
sufficiently specific to a defense so as to be prejudicial
to the defendant’’ and that the defendant had failed to
show that she had the intent to establish the attorney-
client relationship. The trial court found that certain
other documents within exhibit A contained eleven year
old information, were preexisting, and not privileged.
Finally, regarding the documents describing the ‘‘tumul-
tuous relationship between the defendant and the dece-
dent,’’ the trial court found that the defendant had not
produced sufficient evidence at the Lenarz hearing ‘‘to
establish either that the document[s] [were] created at
the request of any attorney or with the intent to be
provided to any attorney for the purpose of obtaining
legal advice.’’
Regarding defense exhibit C, the trial court found
that both draft and executed estate planning documents
were not privileged because they were either ‘‘docu-
ments of the sort meant to be made public and provided
to third parties as a matter of course’’ or nonprivileged,
preexisting documents. The court found that the defen-
dant had failed to carry her burden of establishing that
invoices, household bills, and other paperwork con-
tained within exhibit C were privileged because she had
‘‘failed to show the nexus between the exhibits and the
culmination of the legal advice: the executed estate plan-
ning files.’’ The court also found that the defendant had
failed to sustain her burden of establishing that copies
of a document apparently authored by the decedent
were privileged because she failed to adduce sufficient
evidence to establish that the attorney-client privilege
was applicable to them. Regarding documents containing
biographical information about the decedent and docu-
mentation related to his previous marriage, the trial
court found that the defendant had failed to show that
she would be the proper party to be able to invoke the
attorney-client privilege. Finally, as to any privileged
documents within exhibit C, the trial court found that
‘‘the defendant has failed to assert or establish that the
privileged documents contain evidence of the defen-
dant’s trial strategy or position. Accordingly, this court
finds that the defendant suffered no injury for law
enforcement’s invasion of the privilege as to exhibit C,
ending the court’s inquiry as to this exhibit.’’
The court accepted a written stipulation from the
parties that the attorney-client privilege covered the
entire contents of exhibit B.8 On the basis of the stipula-
tion, the evidence presented at the Lenarz hearing, and
its own review of the documents within exhibit B, the
trial court found that the defendant had ‘‘met her burden
of proof in establishing that law enforcement officials
seized from her home communications protected by
the attorney-client privilege.’’ The state conceded, and
the court accepted, that ‘‘certain of the privileged com-
munications [could] be construed to reflect a potential
trial strategy and/or the defendant’s position as a then
potential criminal defendant.’’ Given that invasion of the
privilege and the nature of the documents, the defendant
argued that the presumption of prejudice announced in
Lenarz was applicable. See State v. Lenarz, supra, 301
Conn. 437 (‘‘because the disclosure of [attorney-client com-
munications containing information concerning the defen-
dant’s trial strategy] is inherently prejudicial, prejudice
should be presumed’’ (emphasis omitted)). The state did
not seek to rebut that presumption as to exhibit B but,
rather, sought to establish that the prejudice could be
cured by a remedy short of dismissal of the charges
against the defendant.
Specifically regarding prejudice to the defendant, the
trial court, on the basis of the testimony throughout the
Lenarz hearing, found that the police officers’ initial inva-
sion of the attorney-client privilege was unintentional.
The state presented the testimony of Preleski to describe
the prosecution’s efforts to minimize future prejudice.
Preleski was not present at the search of the defendant’s
home. He was contacted by the prosecuting attorney,
then Assistant State’s Attorney Christian M. Watson, to
review the seized documents and to determine if they
were privileged, as well as to consider potential future
procedures for the defendant’s prosecution. Preleski tes-
tified that the New Britain State’s Attorney’s Office acted
to ‘‘limit additional exposure to potentially privileged
materials with an eye toward future ‘taint-free’ investiga-
tions and prosecution of this matter.’’ The state’s actions
included treating the New Britain State’s Attorney’s
Office as a ‘‘taint team,’’ halting the investigation of the
matter until after the resolution of the Lenarz issue, and
having the case handled by another state’s attorney’s
office that had no knowledge of the privileged communi-
cations.
In accordance with the state’s remedial actions and
recommendations, and to limit any further prejudice to
the defendant, the trial court ordered that (1) the case
was to be transferred out of the New Britain judicial dis-
trict, (2) and no longer prosecuted by the New Britain
state’s attorney, (3) or investigated by the state police
Western District Major Crime Squad, (4) the trial was not
to be held in the New Britain judicial district but that
the case was to be transferred to a judicial district to be
determined by the chief administrative judge for criminal
matters, along with the chief state’s attorney, to be liti-
gated by prosecutors without knowledge of the privi-
leged communications and investigated by a state law
enforcement agency without knowledge of the privi-
leged communications, (5) privileged documents would
remain exhibits under seal in the courthouse clerk’s
office, subject to review only upon prior authorization
by a judge of the Superior Court after submission of a
properly certified written motion, (6) motions and other
filings from the Lenarz hearing on the motion to dismiss,
if filed under seal, would remain under seal and be main-
tained by the clerk of the court with disclosure permitted
only upon authorization by a judge of the Superior Court,
(7) the courthouse clerk’s file from the Lenarz hearing
was not to be disclosed or subject to review by the subse-
quent prosecuting authority or investigative agency, and
requests for copies would be subject to redaction by the
court, (8) audio recordings of the Lenarz hearing were
not to be reviewed by the incoming prosecutors or inves-
tigators, (9) the transcripts of closed court sessions were
not to be available to the successor prosecuting author-
ity or investigating agency, (10) the New Britain State’s
Attorney’s Office would act as an aid to the court and
an additional buffer, having already been exposed to the
privileged materials, (11) transcripts sought by future
prosecutors and investigators would be reviewed and fil-
tered through the New Britain State’s Attorney’s Office
and a judge of the Superior Court, subject to redaction,
and (12) state police troopers from Troop L in Litchfield
with knowledge of the contents were not to be permitted
to discuss the substance of the materials with any other
law enforcement agency or prosecutor’s office.
In light of these ordered remedies, the trial court
denied the defendant’s motion to dismiss on the basis
of three determinations: (1) the defendant had failed to
establish that exhibit A was protected by the attorney-
client privilege, (2) the defendant had failed to establish
that exhibit C was, by and large, protected by the privi-
lege, and (3) the prejudice to the defendant caused by
the invasion of the privilege could be cured by a remedy
short of dismissal of the criminal information. The defen-
dant filed a petition for certification to appeal to this
court pursuant to § 52-265a (a). Because the application
raised a ‘‘matter of substantial public interest . . . in
which delay may work a substantial injustice,’’ the Chief
Justice granted the application. See General Statutes
§ 52-265a (a).
The trial court did not clearly err when it found that
the defendant failed to establish that the documents
within exhibit A and in much of exhibit C are protected
by the attorney-client privilege. Specifically, the defen-
dant did not meet her burden of establishing that the
documents reflect privileged communications between
herself and her attorney, or that she created the docu-
ments with the intent to communicate them to an attor-
ney for the purpose of seeking legal advice, or that she
transformed preexisting documents in such a manner
as to render them privileged. In this appeal, we do not
review the documents within exhibit B to determine
whether the defendant met her burden of establishing
that they were privileged because the state does not
challenge the trial court’s finding that exhibit B contains
privileged documents or the trial court’s acceptance
of the parties’ written stipulation that the contents of
exhibit B are privileged. See footnote 8 of this opinion
and accompanying text. Furthermore, the state does not
challenge the trial court’s finding that the investigating
officers prejudiced the defendant by reading documents
within exhibit B that reflected ‘‘potential trial strategy
and/or the defendant’s position as a then potential crim-
inal defendant.’’ Rather, the state asserts in its brief
to this court that any prejudice to the defendant ‘‘has
already been, and will continue to be, cured by [the]
state’s [previous] prompt actions [to minimize future
prejudice to the defendant] and the remedy fashioned
by the trial court.’’ Therefore, according to the state,
dismissal of the charges against the defendant is not
required. The trial court did not abuse its discretion in
finding that the state demonstrated, by clear and con-
vincing evidence, that the state’s remedial actions can
cure any prejudice to the defendant. The state’s actions
in the present case therefore do not rise to the level of
the extreme prejudice demonstrated in Lenarz, and
dismissal of the criminal information is not warranted.
II
To address the defendant’s claims, we must first eval-
uate whether the trial court correctly determined that
the defendant did not meet her burden of establishing
that the attorney-client privilege protects the docu-
ments contained within exhibits A and C that the police
seized. We review the trial court’s determination that
the defendant did not meet her burden under the clear
error standard. See, e.g., State v. Lenarz, supra, 301 Conn.
424 (applying clearly erroneous standard of review to
trial court’s findings).
‘‘Where legal advice of any kind is sought from a
professional legal adviser in his capacity as such, the
communications relating to that purpose, made in confi-
dence by the client, are at his instance permanently pro-
tected from disclosure by himself or by the legal adviser,
except the protection be waived.’’ (Internal quotation
marks omitted.) Rienzo v. Santangelo, 160 Conn. 391,
395, 279 A.2d 565 (1971), quoting 8 J. Wigmore, Evidence
(McNaughton Rev. 1961) § 2292, p. 554; see also Olson
v. Accessory Controls & Equipment Corp., 254 Conn.
145, 159, 757 A.2d 14 (2000) (evaluating whether com-
munications between defendant’s attorney and entity
she hired to prepare report were inextricably linked to
rendering of legal advice). ‘‘In Connecticut, the attor-
ney-client privilege protects both the confidential giv-
ing of professional advice by an attorney acting in the
capacity of a legal advisor to those who can act on it,
as well as the giving of information to the lawyer to
enable counsel to give sound and informed advice. . . .
The privilege fosters full and frank communications
between attorneys and their clients and thereby pro-
mote[s] the broader public interests in the observation
of law and [the] administration of justice.’’ (Internal
quotation marks omitted.) PSE Consulting, Inc. v. Frank
Mercede & Sons, Inc., 267 Conn. 279, 329–30, 838 A.2d
135 (2004). The privilege applies, however, only when
necessary to achieve its purpose; it is not a blanket
privilege. See Harrington v. Freedom of Information
Commission, 323 Conn. 1, 12, 144 A.3d 405 (2016).
The attorney-client privilege applies to oral and writ-
ten communications. See, e.g., E. Prescott, Tait’s Hand-
book of Connecticut Evidence (6th Ed. 2019) § 5.16.1
(b), p. 262 (‘‘[c]ommunications between an attorney
and a client can be written as well as oral’’); see also
1 Restatement (Third), The Law Governing Lawyers
§ 69, comment (b), p. 525 (2000) (‘‘A communication
can be in any form. Most confidential client communica-
tions to a lawyer are written or spoken words . . . .’’).
The present case involves documents, and our analysis
will focus on that form of communication. The privilege
must be established for ‘‘each document separately con-
sidered’’ and must be narrowly applied and strictly con-
strued. (Internal quotation marks omitted.) Harrington
v. Freedom of Information Commission, supra, 323
Conn. 12. ‘‘The burden of establishing the applicability
of the privilege rests with the party invoking it’’; id.;
see also State v. Hanna, 150 Conn. 457, 466, 191 A.2d
124 (1963) (‘‘[t]he burden of proving the facts essential
to the privilege is on the person asserting it’’); and the
burden applies in both civil and criminal contexts.
First, a party can establish that a document is privi-
leged by showing that the document is itself the record
or memorialization of a communication between the
client and the attorney. See 1 Restatement (Third), supra,
§ 69, p. 525 (‘‘[a] communication . . . is any expression
through which a privileged person . . . undertakes to
convey information to another privileged person and
any document or other record revealing such an expres-
sion’’); see also United States v. DeFonte, 441 F.3d 92,
95 (2d Cir. 2006) (memorializations of private conversa-
tions between client and attorney protected from disclo-
sure by attorney-client privilege). If the document is not
a record of a communication, a party can still establish
privilege by showing that (1) the document was created
with the intent to communicate the contents to an attor-
ney, and (2) the client actually communicated the con-
tents to the attorney. See id., 96 (‘‘A rule that recognizes
a privilege for any writing made with an eye toward legal
representation would be too broad. A rule that allows
no privilege at all for such records would discourage
clients from taking the reasonable step of preparing an
outline to assist in a conversation with their attorney.’’).
Perhaps the most obvious example is a client’s outline
or notes made in preparation for a meeting with an
attorney, or at the attorney’s behest to facilitate commu-
nication between attorney and client, and then the client
and the attorney actually communicate about the con-
tents of the notes. See, e.g., United States ex rel. Locey v.
Drew Medical, Inc., Docket No. 6:06-cv-564-Orl-35KRS,
2009 WL 88481, *2–3 (M.D. Fla. January 12, 2009) (chro-
nology ‘‘prepared at the direction of counsel to commu-
nicate information to counsel for the purposes of seek-
ing legal advice . . . is protected by the attorney-client
privilege’’); Bernbach v. Timex Corp., 174 F.R.D. 9, 10
(D. Conn. 1997) (client’s notes contained in her note-
books were privileged because notes were made for pur-
pose of seeking legal advice and were communicated
to attorney in confidence).
In the context of creating documents for the purpose
of seeking legal advice, one final wrinkle arises when
a party asserting the attorney-client privilege creates a
document with the intent to communicate the contents
to an attorney but, on the basis of the circumstances,
the actual communication does not take place. If, for
example, a party asserting the privilege could establish
creation of a document for the purpose of seeking legal
advice but that the police seized the document prior to
the actual communication to the attorney, the docu-
ment may maintain its privileged status. See State v.
Lenarz, supra, 301 Conn. 441 n.18 (‘‘[i]f a person creates
a document with the intent to communicate it to an
attorney for the purpose of facilitating the attorney’s rep-
resentation of that person, it would be entirely incon-
sistent with the purpose of the attorney-client privilege
to allow third parties to obtain access to the document
up to the time that the person actually communicates
it to the attorney’’).
Last, although more tenuous, there is some support
for the proposition that a party could establish the attor-
ney-client privilege by showing transformation of a pre-
existing document into a communication for the pur-
pose of seeking legal advice and that the document was
communicated to or intended to be communicated to
an attorney. Preexisting documents are documents that
are not a record of a communication and were not
created for the purpose of seeking legal advice. See 1 R.
Mosteller et al., McCormick on Evidence (8th Ed. 2020)
§ 89, p. 632 (‘‘A professional communication in writing,
as a letter from client to lawyer for example, will of
course be privileged. These written privileged commu-
nications are readily to be distinguished from preexist-
ing documents or writings, such as deeds, wills, and ware-
house receipts, not in themselves constituting commu-
nications between client and lawyer.’’ (Footnote omitted.)).
‘‘[Preexisting] documents that are not in themselves
communications . . . are treated in different ways,
depending on how the attorney acquired them.’’ E. Pres-
cott, supra, § 5.16.1 (c), p. 262. A preexisting document
does not become privileged merely because it is ‘‘trans-
ferred to or routed through an attorney.’’ Resolution
Trust Corp. v. Diamond, 773 F. Supp. 597, 600 (S.D.N.Y.
1991); see also 1 Restatement (Third), supra, § 69, com-
ment (j), p. 530 (‘‘[a client authored] document that is
not a privileged document when originally composed
does not become privileged simply because the client
has placed it in the lawyer’s hands’’). However, a preex-
isting document could become privileged if it were
somehow transformed for the purpose of seeking legal
advice and communicated or intended to be communi-
cated to an attorney. See Angst v. Mack Trucks, Inc.,
Docket Nos. 90-3274, 90-4329, 1991 WL 86931, *2 (E.D.
Pa. May 14, 1991) (reasoning that plaintiff’s handwritten
notes made for personal use, not for purpose of securing
attorney, would not fall within privilege, but typed com-
pilation and summary created for purpose of securing
counsel would fall within privilege). The oft stated short-
hand rule for preexisting documents provides: ‘‘If the
client would have to produce [the document], were
the client in possession of [it], then the attorney must
produce it; if the client would not have to produce, the
attorney would not have to produce.’’ E. Prescott, supra,
§ 5.16.1 (c), p. 262, citing Fisher v. United States, 425
U.S. 391, 403–404, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976).
With these principles in mind, we examine the record
to evaluate whether the trial court clearly erred in deter-
mining that the defendant had failed to establish that the
documents within exhibits A and C constitute communi-
cations, or that she had failed to establish that she created
the documents for the purpose of seeking legal advice
and actually communicated the contents or intended
to communicate the contents to her attorney, or that
she failed to establish that she transformed preexisting
documents into nondiscoverable, privileged communi-
cations.
A
The defendant first asserts that the trial court clearly
erred when it found that exhibit A was not privileged.
Specifically, she argues that the court erroneously deter-
mined that she had not met her burden of establishing
that she created the documents with the intent to com-
municate them to her attorney for the purpose of seek-
ing legal advice. The defendant contends that she met
her burden of establishing that the documents war-
rant the protection of the attorney-client privilege on
the basis of (1) expert testimony, (2) the fact that the
documents within exhibit A were located in her file
cabinet directly next to exhibit B, labeled ‘‘CRIMINAL
DEFENSE ATTORNEY Oct 2017,’’ and (3) the fact that
exhibit A contained written statements substantively
identical to the documents within exhibit B. Finally she
asserts that the documents must be privileged on the
basis of the fact that the state stipulated to the privilege
covering exhibit B. We disagree. The trial court record
the defendant developed regarding the factual circum-
stances surrounding the creation of the documents
within exhibit A is sparse, at best, and does not support
her argument that the trial court clearly erred in
determining that she did not establish that she created
the documents within exhibit A for the purpose of seek-
ing legal advice.
1
First, the defendant attempts to rely on the trial
court’s limitation of Dubois’ testimony as well as the
trial court’s preclusion of two additional experts in sup-
port of her position that she established that she had
created the documents within exhibit A for the purpose
of seeking legal advice. We review the trial court’s ruling
on evidentiary matters, as well as its determination con-
cerning the admissibility of testimony from expert wit-
nesses, for abuse of discretion. See, e.g., State v. Iban
C., 275 Conn. 624, 634, 881 A.2d 1005 (2005); see also
State v. Williams, 317 Conn. 691, 701–702, 119 A.3d 1194(2015) (affording trial courts ‘‘wide discretion in deter-
mining whether to admit expert testimony and, unless
the trial court’s decision is unreasonable, made on unten-
able grounds . . . or involves a clear misconception of
the law, we will not disturb its decision’’ (internal quota-
tion marks omitted)).
In her brief, the defendant states that she ‘‘advised
Dubois that the documents in both exhibits A and B
had been created, accumulated and organized prior to
her . . . visits with . . . attorneys, and that the file
was prepared to organize her thoughts and communi-
cate to her lawyers what she had been dealing with and
what happened regarding the untimely death of the
[decedent], for the purpose of seeking legal advice.’’
Indeed, Dubois testified that he met with the defendant
and, on the basis of that meeting, concluded that all of
the documents within exhibit A were privileged. How-
ever, the trial court did not admit Dubois’ testimony
about the defendant’s intent when creating the docu-
ments for the truth of the matter because the statements
constituted inadmissible hearsay. In fact, the trial court
explicitly did not permit Dubois to opine as to the defen-
dant’s intent in creating the documents. The court stated:
‘‘[H]e’s not allowed to opine, it’s my opinion that she
intended to create a privilege—the court will not allow
that.’’ Defense counsel asked if he could make an offer
of proof, and the court responded: ‘‘No. An offer of proof
as to his opinion as to her intent to create the privilege,
no. You can lay out the facts, you can lay out his review,
you can lay out his conversation, but not as to the intent;
that’s up to this court.’’
The trial court did not abuse its discretion in permit-
ting Dubois’ testimony relating to the defendant’s hear-
say statements to him under § 7-4 (b) of the Connecticut
Code of Evidence9 as the basis for his expert opinion
and for no other substantive purpose. See Milliun v.
New Milford Hospital, 310 Conn. 711, 726, 80 A.3d 887(2013) (‘‘[I]nadmissible facts upon which experts cus-
tomarily rely in forming opinions can be derived from
sources such as conversations . . . . [However, § 7-4
(b)] expressly forbids the facts upon which the expert
based his or her opinion to be admitted for their truth
unless otherwise substantively admissible under other
provisions of the [c]ode.’’ (Emphasis omitted; internal
quotation marks omitted.)). Section 7-4 (b) ‘‘does not
constitute an exception to the hearsay rule or any other
exclusionary provision of the [c]ode.’’ (Internal quota-
tion marks omitted.) Id. Any statements the defendant
made to Dubois about her intent in creating the docu-
ments were made out of court, did not fall within any
hearsay exception, and were properly admitted only as
a basis for Dubois’ expert opinion, not for the truth of
whether the defendant created the documents for the
purpose of seeking legal advice.
The record contains no other evidence that would
help establish the defendant’s intent at the time she
created the documents or her intent to communicate
the documents to obtain legal advice.10 The defendant
herself did not testify at any point during the Lenarz
hearing. She did not attest to when, or for what purpose,
she created the documents or that she in fact communi-
cated the documents to her attorney for the primary
purpose of seeking legal advice. Nor did she or anyone
else explain the relationship between the documents
within exhibit A and any corresponding versions con-
tained within exhibit B, which (if any) is an original,
which is a copy, the reason(s) for creating multiple
versions, or any similar information. Under these cir-
cumstances, the trial court did not abuse its discretion
in determining that the ‘‘defendant ha[d] failed to estab-
lish that she created or compiled any of the documents
contained in exhibit A on the advice of counsel,’’ absent
any evidence that the defendant (1) created the docu-
ments for, or at the request of, her attorney, (2) intended
to communicate the contents to an attorney, or (3)
actually communicated them to an attorney.
The defendant also contends that the trial court
improperly precluded expert testimony that would have
supported her argument that the documents within
exhibit A are privileged. Specifically, during the Lenarz
hearing, she proffered Attorney William F. Dow III as
‘‘an expert in criminal law . . . an expert [in] the pro-
tections afforded to [the defendant] under the state
constitution for search and seizure . . . [and] as an
expert as to privilege.’’ Dow also would have opined ‘‘on
the ultimate remedy and . . . on the constitutional vio-
lations that occurred here.’’ The defendant also prof-
fered Attorney Hubert J. Santos as an expert to provide
similar testimony—that the documents were covered
by the attorney-client privilege. The trial court pre-
cluded both experts pursuant to § 7-2 of the Connecticut
Code of Evidence,11 State v. Favoccia, 306 Conn. 770,
51 A.3d 1002 (2012), and State v. Taylor G., 315 Conn.
734, 110 A.3d 338 (2015).
‘‘An expert witness ordinarily may not express an
opinion on an ultimate issue of fact, which must be
decided by the trier of fact. . . . Experts can [however]
sometimes give an opinion on an ultimate issue where
the trier, in order to make intelligent findings, needs
expert assistance on the precise question on which it
must pass.’’ (Internal quotation marks omitted.) State
v. Iban C., supra, 275 Conn. 634–35. But see id., 636–37
(trial court abused its discretion by admitting testimony
on ultimate issue of fact that was not helpful to jury in
deciding precise question on which it had to pass).
In the present case, the trial court determined that
the expert testimony of Attorneys Dow and Santos
would have improperly infringed on the court’s func-
tion, would not have assisted the court as the trier of
fact, improperly included conclusions of law, and would
have been cumulative of the testimony of Dubois. We
conclude that the trial court did not abuse its discretion
in precluding both experts from testifying. The court’s
decision was reasonable because neither Dow nor San-
tos could have provided any information that would
have been of assistance to the court in determining
whether, as a matter of fact, the defendant had created
any of the documents for the purpose of seeking legal
advice. Neither Dow nor Santos could have provided
any additional evidence as to whether the documents
qualified as communications made by the defendant to
her attorney because neither of them had any knowl-
edge relating to the defendant’s intentions in creating
the documents, which is the key element necessary to
establish the applicability of the attorney-client privi-
lege. Moreover, the content of the defendant’s proffer
of the testimony of Dow and Santos was cumulative of
Dubois’ testimony and centered on an ultimate issue—
whether the defendant established that the documents
were privileged—that was a determination for the trial
court alone to make. See Conn. Code Evid. § 7-3 (a)
(‘‘[t]estimony in the form of an opinion is inadmissible
if it embraces an ultimate issue to be decided by the
trier of fact, except that . . . an expert witness may
give an opinion that embraces an ultimate issue where
the trier of fact needs expert assistance in deciding
the issue’’).
2
The defendant next asserts that the manner in which
she maintained the documents is sufficient to establish
that the documents are privileged. We are not per-
suaded. We credit the defendant’s characterization that
exhibits A and B were ‘‘carefully maintained’’ files under
lock and key, located ‘‘centimeters apart from one
another’’ in ‘‘two different folders nestled together,’’
rather than loose pieces of paper left unprotected in
the office in the defendant’s home in which they were
seized. Nothing in the record contradicts that character-
ization. However, the mere fact that exhibit A, labeled
‘‘INCIDENT 2017,’’ was located next to exhibit B,
labeled ‘‘CRIMINAL DEFENSE ATTORNEY Oct 2017,’’
by itself, does not serve to transfer the privilege from
one file to another. That kind of proximity argument—
documents located adjacent to nearby related privileged
documents are also privileged—simply does not mea-
sure up to the well established standard of proof for
establishing privilege and would lead to illogical results.
For example, if an attorney were inadvertently to dis-
close a privileged e-mail communication within a batch
of hundreds of communications, that attorney could
hardly argue that the privilege should somehow transfer
to all the e-mails in the batch simply because they were
‘‘nestled together.’’ See PSE Consulting, Inc. v. Frank
Mercede & Sons, Inc., supra, 267 Conn. 331 n.29 (declin-
ing to ‘‘transfer’’ privilege from one confidential e-mail
covered by privilege to another nonconfidential e-mail,
even though e-mails were related in time and general
subject matter). More troubling is the fact that the
defendant’s proximity argument flies in the face of the
well established principle that the privilege must be
established for each document separately. See, e.g.,
Harrington v. Freedom of Information Commission,
supra, 323 Conn. 12. The defendant cites no case law,
and we have found none, that supports the proposition
that placing a document next to a privileged document
transforms what would be a nonprivileged document
into one protected by the attorney-client privilege.
Instead, the defendant asks us to substitute her pre-
ferred logic—which we do not find inescapable—for
concrete evidence that would establish that she
intended to communicate the documents within exhibit
A for the purpose of seeking legal advice. Practically
speaking, it is at least as plausible an inference that the
defendant created two separate files, labeled differ-
ently, with two different purposes or intentions in mind.
The file labeled ‘‘CRIMINAL DEFENSE ATTORNEY Oct
2017,’’ which contains documents pertaining to trial
strategy, could be viewed as the file the defendant cre-
ated for her current or prospective attorney. Labeling,
after all, can be one indication of whether a communica-
tion is intended to seek or to provide legal advice.12
Compare Lash v. Freedom of Information Commission,
300 Conn. 511, 519–20, 14 A.3d 998 (2011) (document
expressly labeled ‘‘CONFIDENTIAL Attorney-Client
Communication DO NOT DISCLOSE’’ and transmitted
from assistant town attorney to first selectman for pur-
pose of providing legal advice was covered by attorney-
client privilege (internal quotation marks omitted)),
with Cadlerock Properties Joint Venture, L.P. v. Com-
missioner of Environmental Protection, 253 Conn. 661,
675 n.13, 757 A.2d 1 (2000) (memoranda labeled ‘‘CON-
FIDENTIAL-ATTORNEY CLIENT PRIVILEGE,’’ but
‘‘not created for the purpose of obtaining legal advice’’
and in which no legal advice was sought, were not
covered by attorney-client privilege (internal quotation
marks omitted)), cert. denied, 531 U.S. 1148, 121 S. Ct.
1089, 148 L. Ed. 2d 963 (2001). The label on exhibit A,
‘‘INCIDENT 2017,’’ on the other hand, does not, on its
face, manifest the same intent to seek legal advice as
the file labeled ‘‘CRIMINAL DEFENSE ATTORNEY Oct
2017.’’ We need not—and ought not—speculate as to
the defendant’s intent in creating the separately marked
files. Rather, the defendant bore the burden of proving
that her intent in creating the documents within exhibit
A was to communicate the information for the purpose
of seeking legal advice. See Harrington v. Freedom of
Information Commission, supra, 323 Conn. 12. She did
not meet that burden by relying on the proximity of
the documents.
3
The defendant urges us to conclude that the docu-
ments are sufficient in and of themselves to be consid-
ered privileged because their content is obviously use-
ful to preparing her defense. We are not persuaded.
Although it is true that documents containing informa-
tion relating to the actual express communications
between individuals and their attorneys may, on their
face, establish the communication element necessary
to invoke the privilege; United States v. DeFonte, supra,
441 F.3d 95; the documents within exhibit A do not
reflect actual communications between the defendant
and her attorney. Exhibit A contains three categories
of documents: (1) handwritten documents describing
the incident that led to the decedent’s death and the
conditions leading to it, (2) handwritten documents
describing a health related problem of the defendant,
and (3) printouts from a medical provider summarizing
the defendant’s visit and evaluation there in April, 2008,
and containing handwritten phone numbers in the
margins.
The trial court did not clearly err in determining that
the defendant did not establish that the third category
of documents, the medical records, were anything other
than preexisting documents that were outside the scope
of the attorney-client privilege. They predate the inci-
dent that gave rise to the attorney-client relationship
by about nine years, and the defendant introduced no
evidence to establish that they were created for the
purpose of seeking legal advice. If the defendant thought
that the documents could aid in her defense, brought
them to her attorney, and discussed the information
contained therein, she may have been able to establish
that the conversation about the information would be
privileged, but not the documents themselves. See 1
Restatement (Third), supra, § 69, comment (j), pp. 529–
30 (‘‘A client may communicate information to a lawyer
by sending writings or other kinds of documentary or
electronic recordings that came into existence prior to
the time that the client communicates with the lawyer.
The privilege protects the information that the client so
communicated but not the [preexisting] document or
record itself.’’).
On the basis of the record, we agree with the trial
court that the defendant failed to establish whether
the first two categories of documents (the handwritten
notes describing the incident that led to the decedent’s
death and the medical issues) were created for the pur-
pose of seeking legal advice or created for some other
personal purpose and are more properly characterized
as preexisting documents. None of these handwritten
documents reflects notes describing actual communica-
tions or memorializations of communications between
the defendant and her attorney.
Documents that do not reflect actual communica-
tions between attorney and client require additional
evidence by the party asserting the attorney-client privi-
lege to establish that they were created for the purpose
of seeking legal advice and that actual legal advice was
sought or intended to be sought. In the present case,
the defendant did not adduce any additional evidence
to establish that she created the documents for the
purpose of seeking legal advice or that she communi-
cated or intended to communicate the documents to
her attorney. Without more, the defendant has not
established that the trial court clearly erred in determin-
ing that she failed to establish that the documents within
exhibit A are privileged communications.
The defendant asks us to rely on an intermediate
appellate court case from the state of Washington for
the proposition that the content of written materials,
such as those contained within exhibit A, suffices to
establish intent and, therefore, that the documents
within exhibit A warrant the protection of the attorney-
client privilege. See State v. Perrow, 156 Wn. App. 322,
231 P.3d 853 (2010). In Perrow, the Washington Court
of Appeals upheld the trial court’s dismissal of criminal
charges against the defendant on the ground that he was
prejudiced when a police detective seized, reviewed
and analyzed privileged documents that the defendant
had prepared at the direction of his attorney. Id., 325–26.
Perrow is clearly distinguishable from the present case.
In Perrow, the trial court made the following findings:
‘‘(1) . . . [the defendant] retained the services of . . .
an attorney; (2) [the attorney’s] representation involved
. . . representation during the investigative stage of the
potential criminal charges . . . (3) [the defendant] was
aware of [the] allegations based on his conversation
with [the detective] . . . (4) [the attorney] first met
with [the defendant] . . . after previously speaking
with him by telephone and receiving faxed documents
concerning the allegations; (5) [the attorney] asked [the
defendant] to provide him with information about . . .
[the] allegations; (6) during . . . [a] meeting, [the attor-
ney] asked [the defendant] to gather additional informa-
tion and to put that information into writing; (7) [the
defendant] prepared written materials for his attorney
which consisted of a green composition book, a black
composition book, miscellaneous notes located in his
office, and a yellow [notepad]; and (8) [the attorney]
met with [the defendant] . . . to review the informa-
tion and [to] discuss the case.’’ Id., 329. On the basis of
those findings, the trial court concluded: ‘‘An [attorney-
client] relationship had been formed and existed at
the time the papers and notebooks were seized . . . .’’
(Internal quotation marks omitted.) Id. The state, on
appeal, did not challenge those findings, and the appel-
late court agreed that the privilege applied. Id., 329–30.
So far as the elements necessary to establish the applic-
ability of the attorney-client privilege in Washington are
consistent with our jurisprudence on the privilege, the
defendant in the present case has failed to establish
nearly every single element that the defendant in Per-
row established. Although there is evidence within
exhibit B that the defendant spoke to several attorneys,
the defendant did not establish that she retained the
services of her attorney prior to the execution of the
search warrant. Nor did she establish that she met with
her attorney prior to preparing the documents or that
her attorney asked her to prepare information about
the allegations. Finally, she did not establish that she
prepared the written materials for her attorney or that
she met with her attorney for the purpose of having
counsel review those materials. We therefore conclude
that the trial court did not clearly err when it declined
to blanket these documents with the protection of the
attorney-client privilege without evidence of the defen-
dant’s intent to create the documents for the purpose
of seeking legal advice.
4
Relatedly, the defendant argues that the documents
within exhibit A are covered by the attorney-client privi-
lege because they are substantively identical to, or are
copies of, documents contained within exhibit B. The
defendant asserts that, because the parties stipulated
that the contents of exhibit B are privileged, the con-
tents of exhibit A must also be privileged. The defendant
argues that, because almost every one of the approxi-
mately twenty-five pages within exhibit A is substan-
tively identical to some of the approximately 150 pages
within exhibit B, ‘‘[i]t makes no sense that the same
statement and documents that the state admitted were
privileged in one file were not in another [file] . . . .’’
We disagree. Our review of the documents contained
within exhibits A and B confirms that, with the excep-
tion of one document with the name, phone number,
and date of contact with a medical doctor, the entire
contents of exhibit A are substantively identical to docu-
ments also contained within exhibit B. However, on
this record, we are unable to agree with the defendant
that she has demonstrated that the documents within
exhibit A are covered by the attorney-client privilege.13
We disagree with the defendant’s statement that the
documents are ‘‘the same . . . .’’ In fact, the documents
are not ‘‘the same . . . .’’ Both exhibit A and exhibit
B contain ‘‘the narrative’’ document, but they are not
exact copies because the defendant’s initials are in dif-
ferent locations on the pages. See footnote 5 of this
opinion. Additionally, there are many versions of the
narrative describing the incident that led to the dece-
dent’s death that are told in substantively different ways
and are of different lengths and detail. This is not a
case in which a lawyer or client printed an e-mail
exchange that took place (a communication) and kept
one physical copy in a file folder and saved a duplicate
copy in an electronic file. The present case is notably
distinct from that scenario—most importantly because
the documents are not, on their face, communications
between attorney and client. The file contains a variety
of documents—some that appear to be more like jour-
nal entries, others more narrative in style and describ-
ing traumatic events, and others that are clearly preex-
isting documents. See part II A 3 of this opinion. Nothing
within the documents suggests that the writings reflect
communications between the defendant and her attor-
ney. Finally, the defendant has not established, and we
cannot infer, that the documents were created at the
behest of an attorney and for the purpose of seeking
legal advice. The documents could just as easily be viewed
as preexisting documents created for some other per-
sonal reason. Simply stated, nothing in the record sup-
ports the defendant’s position that the documents
within exhibit A are identical copies of privileged com-
munications.
The defendant next claims that the state’s stipulation
as to exhibit B should transfer to exhibit A to render the
documents within exhibit A privileged. This argument
is belied by the trial court record. Notably, the defen-
dant did not raise this issue before the trial court.
Rather, both parties proceeded with the Lenarz hear-
ing under the assumption that the stipulation applied
only to exhibit B, not exhibit A. The defendant initially
proposed the idea of a stipulation toward the end of
the first day of the Lenarz hearing. Defense counsel
addressed the trial court, stating: ‘‘In the effort to
streamline this process because these examinations
have been—they got to be excruciating to listen to—
through the court, I was going to ask that the state, if
[it] would stipulate to the fact that the criminal defense
attorney file, labeled October, 2017 . . . is privileged.
Would the state stipulate to that?’’ The defendant had
first discussed the idea with the state over the preceding
trial court break. The state responded: ‘‘I thought that
was the whole purpose of this hearing, Your Honor.
And, obviously, this is the first that I’m hearing of it. If
counsel had brought this to my attention a week ago,
three days ago, I could have actually reflected on that
and done, you know, my due diligence . . . . I am
remiss at this point to do that at this exact moment.’’
On the second to last day of the Lenarz hearing,
the state agreed to the defendant’s suggestion that the
parties stipulate to the privilege covering the contents
of exhibit B. The written stipulation provided in relevant
part: ‘‘The aforementioned blue accordion folder
marked ‘‘CRIMINAL DEFENSE ATTORNEY Oct 2017’’
and its contents are protected by the attorney-client
privilege . . . .’’ Before accepting the stipulation, the
trial court discussed the matter with the parties on the
record.14 It was clear from this discussion that defense
counsel, the prosecutor, and the trial court all under-
stood that the state had stipulated that the privilege
applied only to the content of exhibit B (as the defen-
dant had initially suggested), and that the state con-
tested the privilege as to the contents of exhibits A and
C. Defense counsel stated that he had discussed the
stipulation with the defendant on multiple occasions
and that she also agreed to the terms of the stipulation.
The record and the written agreement establish that
the parties intended that the attorney-client privilege
would apply only to the contents of exhibit B, not
exhibit A. The parties voluntarily entered into an agree-
ment setting to rest their dispute about the privilege
covering the contents of exhibit B. See, e.g., Gillis v.
Gillis, 214 Conn. 336, 339–40, 572 A.2d 323 (1990). In
this appeal, the defendant would have us alter that agree-
ment by extending the stipulation to protect the con-
tents of exhibit A as privileged. We decline to do so.
See, e.g., id., 340 (a ‘‘stipulation . . . cannot be altered
or set aside without the consent of all the parties, unless
it is shown that the stipulation was obtained by fraud,
accident or mistake’’ (internal quotation marks omit-
ted)). This stipulation, in and of itself, is insufficient to
warrant extending the privilege to the contents of
exhibit A. Under the circumstances of this case, a stipu-
lation as to one document cannot serve to establish that
different versions of substantively identical documents
located in a different file are records of a communica-
tion or that the defendant created the new versions of
the documents for the purpose of seeking legal advice.
To conclude otherwise could expand the privilege to
cover documents that have no indicia of a communica-
tion between attorney and client. The attorney-client
privilege does not serve that purpose. The privilege is
narrowly applied, strictly construed, and applies only
when necessary to foster full and frank communica-
tions between attorneys and their clients. See, e.g., Har-
rington v. Freedom of Information Commission,
supra, 323 Conn. 12. That interest is not served by per-
mitting a blanket application of the privilege to these
documents within exhibit A, for which the defendant
has offered no evidence to establish that she either
communicated with or intended to communicate with
her attorney for the purpose of seeking legal advice.15
B
Exhibit C is referred to by the parties as the defen-
dant’s estate planning file. According to the defendant,
all of the documents within the file should be covered
by the attorney-client privilege as communications
made to an attorney for the purpose of drafting a will,
pursuant to Gould, Larson, Bennet, Wells & McDonnell,
P.C. v. Panico, 273 Conn. 315, 869 A.2d 653 (2005). In
Panico, we reasoned that a draft of an unexecuted will
is a form of communication. Id., 323. We concluded
that communications, in the form of drafts of a will,
between a client and an attorney that do not result in
an executed will are privileged. Id., 320. The defendant’s
reliance on Panico is unavailing, however, because
exhibit C contains an executed will, not a draft of a will
that would be considered a communication within the
context of a will dispute. The estate planning attorney
who prepared the defendant’s will did not testify during
the Lenarz hearing to establish that the documents
within the estate planning file were communicated to
her by the defendant for will preparation purposes or
to develop a trial strategy. The defendant herself did
not testify. The defendant relies exclusively on the testi-
mony of Dubois, who testified that, in his expert opin-
ion, the documents were privileged. The trial court per-
mitted Dubois’ testimony as to the defendant’s hearsay
statements of intent solely as a foundation for his expert
opinion, not for the truth of whether the defendant
actually intended to communicate, or communicated,
the documents to her attorney. See part II A 1 of this
opinion. We therefore have no record as to whether
the documents within the file were in fact documents
created, or communicated to an attorney, for the pur-
pose of seeking legal advice.
The privilege protects communications between cli-
ent and attorney for the purpose of seeking legal advice;
Ullmann v. State, 230 Conn. 698, 711, 647 A.2d 324 (1994);
and the defendant must meet her burden of establish-
ing that what she claims is protected by the privilege
was in fact a communication between herself and her
attorney. Unlike exhibit A, exhibit C contains documents
that appear to be reports or invoices generated by third
parties, for example, a life insurance policy statement.
Such documents could be considered communications
if the defendant has established that they were commu-
nications inextricably linked to the giving of legal
advice. See, e.g., Olson v. Accessory Controls & Equip-
ment Corp., supra, 254 Conn. 168 (upholding Appellate
Court’s conclusion that report compiled by third party
was covered by attorney-client privilege because attor-
ney hired third party to assemble report so attorney
could provide appropriate legal advice to client and
report was ‘‘connected intimately to the rendering of
legal advice’’). In Olson, the attorney had written sug-
gestions on a report compiled by a third party reflecting
the attorney’s legal opinion, and those suggestions
directly related to how the client should respond to a
state environmental compliance order. See id., 167–68.
Additionally, the trial court record in Olson estab-
lished that the attorney had hired the third party to
conduct studies and to assemble a report so that the
attorney ‘‘could utilize . . . facts [contained in the
studies and report] in tendering legal . . . advice to
the defendant in anticipation of possible litigation
. . . .’’ Id., 165. In that case, the record and the docu-
ments supported a conclusion that the report amounted
to a communication between the client and the attor-
ney. See id., 168. The record and the documents in the
present case are insufficient to support the defendant’s
assertion that the documents contained within exhibit
C were communications inextricably linked to the giv-
ing of legal advice.
In light of the defendant’s having offered no evidence
to the trial court that the documents within exhibit C
should be covered by the attorney-client privilege, we
find no factual basis to support a conclusion that many
of the documents within exhibit C are privileged, preex-
isting documents. Exhibit C includes statements and
invoices from home oil deliveries, home electricity and
water company statements, and photocopies of busi-
ness cards. Other documents within exhibit C include
an original and two copies of a power of attorney, an
invoice from the attorney who prepared the power of
attorney, a life insurance premium statement, and two
copies of a document written by the decedent in 2007
describing his wishes for the final disposition of his body
after his death.
More important, the documents within exhibit C do
not contain anything suggestive of the defendant’s trial
strategy. When the state invades an individual’s attor-
ney-client privilege, as long as the documents are not
trial strategy, the defendant bears the burden of estab-
lishing that her prosecution will be prejudiced. See State
v. Lenarz, supra, 301 Conn. 427–28 n.8.
The trial court did not clearly err in determining that
the defendant did not satisfy her burden of establishing
that she communicated, or intended to communicate,
the documents to an attorney for the purpose of seeking
legal advice or that the documents are in any way preju-
dicial to her prosecution.16
III
Having concluded that the trial court correctly deter-
mined that the defendant had failed to establish that
the documents within exhibits A and C are protected
by the attorney-client privilege, we next consider
whether the prejudice to the defendant from the inva-
sion of the privilege regarding exhibit B can be cured
by a remedy short of dismissal of the charges against
her. In doing so, we must consider the state’s conduct
and any prejudice to the defendant. The defendant con-
tends that she was prejudiced in two ways: (1) investiga-
tors and prosecutors had access to privileged communi-
cations that would impact her right to effective counsel
and a fair prosecution—the issue in Lenarz, and (2)
her privileged communications had been exposed to
the general public to the point that she would not be
able to select an impartial or unbiased jury. Cf. State
v. Reynolds, 264 Conn. 1, 224–25, 836 A.2d 224 (2003)
(motion for change of venue properly denied when pre-
trial publicity was not so pervasive or prejudicial as to
require new venue, and there was no reason to believe
that any influence from such publicity could not be
overcome by voir dire process), cert. denied, 541 U.S.
908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). We con-
clude that the trial court’s comprehensive order for the
further prosecution of the case can serve to cure any
prejudice because the state’s conduct and the prejudice
to the defendant did not rise to the level of that in
Lenarz. Individual voir dire of prospective jurors can
serve to mitigate any prejudice that the defendant may
have suffered as a result of the public’s exposure to
privileged materials.
This court reviews the remedy ordered by the trial
court—including the denial of the defendant’s motion
to dismiss the criminal charges—for abuse of discre-
tion. See State v. Lenarz, supra, 301 Conn. 443 (‘‘the
decision to grant or deny a motion to dismiss a criminal
charge rests within the sound discretion of the trial
court, and is one that we will not disturb on appeal
absent a clear abuse of that discretion’’ (internal quota-
tion marks omitted)). For guidance, we look to our
analysis in Lenarz, in which we concluded that the
state’s conduct and the prejudice to the defendant in
that case warranted dismissal of the charge of which
he had been tried and convicted. See id., 419. In Lenarz,
the police seized the defendant’s computer and sent it to
the state forensic science laboratory to be forensically
searched. Id., 420. The next day, defense counsel
advised the trial court that materials in the computer
were attorney-client privileged. Id. The trial court issued
an order providing that any communications between
the defendant and defense counsel should remain
unread. Id. The state laboratory discovered written
materials in the computer containing detailed discus-
sions of the defendant’s trial strategy. Id., 421. One
document, titled ‘‘[s]trategy [i]ssues,’’ listed objectives
for a court appearance by the defendant. (Internal quo-
tation marks omitted.) Id., 442. Another document
stated near the top of its first page that ‘‘[t]he following
material is confidential and I would ask that you review
it.’’ (Internal quotation marks omitted.) Id., 441–42. A
third document stated within its first two sentences that
the defendant had been asked to keep a log of events
pertinent to the case and that ‘‘[t]his document is the
result . . . .’’ (Internal quotation marks omitted.) Id.,
442.
Having found and read the documents, state labora-
tory personnel copied them and sent them to the police
department. Id., 421. The police department forwarded
them to the prosecutor, who provided copies for
defense counsel. Id. The trial court ordered the police
and the prosecutor to turn over any questionable materi-
als to the court and ordered the materials to be placed
under seal. Id. The prosecutor did not dispute that he
had maintained possession of the materials for six
weeks. Id.On appeal, we explained that the documents that the
prosecutor had read, copied, and held contained ‘‘highly
specific and detailed’’ communications about the defen-
dant’s ‘‘trial strategy.’’ Id., 439. The state, by reading those
documents, invaded the defendant’s attorney-client
privilege. Rather than placing the burden on the defen-
dant to establish that he was prejudiced as a result of
the invasion, we concluded that, when the materials
reveal a defendant’s trial strategy, prejudice to the
defendant may be presumed. Id., 425. Knowledge of a
defendant’s trial strategy, after all, threatens a defen-
dant’s sixth amendment right to the assistance of coun-
sel because ‘‘[f]ree two-way communication between
client and attorney is essential if the professional assis-
tance guaranteed by the sixth amendment is to be mean-
ingful.’’ (Internal quotation marks omitted.) Id., 434.
We also explained that the state may then ‘‘rebut that
presumption by clear and convincing evidence.’’ Id.,
425. Ultimately, in Lenarz, we concluded that the state
had failed to rebut the presumption, specifically
because the prosecutor, after reviewing materials con-
taining trial strategy, tried the case to conclusion, and
the prejudice caused by the state’s intrusion into the
defendant’s attorney-client privilege would have been
irreparable on retrial. Id., 426. We therefore reversed
the judgment of conviction and remanded the case to
the trial court with direction to grant the defendant’s
motion to dismiss the charge of which he had been
convicted and to render judgment thereon. Id., 452.
To be sure, some aspects of the search and seizure
of the defendant’s documents in the present case give
us pause, and there is room for improvement in the
training of police officers. No officers should read out
loud the contents of potentially privileged documents.
Once aware that documents are potentially privileged,
officers should take immediate steps to prevent any
further invasion of the privilege or prejudice to any
individual. The officers executing the second search
warrant of the defendant’s home in the present case
clearly should have exercised greater caution in han-
dling the privileged and potentially privileged docu-
ments that they discovered. However, the pretrial reme-
dial measures promptly taken by the state support a
conclusion that the trial court did not abuse its discre-
tion when it concluded that the conduct at issue did
not rise to the extreme level of warranting a dismissal
of the charges against the defendant, as was the case
in Lenarz.
On February 6, 2018, detectives, including Detectives
Corey Clabby and Edmund Vayan, arrived at the defen-
dant’s home to execute a search warrant. Clabby testi-
fied at the Lenarz hearing that, during their search, they
found several locked file cabinets. Before unlocking
any of the file cabinets, they waited ‘‘several hours’’ for
the second search warrant to arrive. Eventually, the
crime scene supervisor, Lieutenant Mark Davison,
decided to proceed, and Vayan cut most of the locks
to examine the contents of the drawers.17 Clabby found
and took out exhibit B, labeled ‘‘CRIMINAL DEFENSE
ATTORNEY Oct 2017.’’ He read through the file in its
entirety.
When defense counsel questioned Clabby as to why
he read through a file clearly marked for a lawyer,
Clabby responded that he could not tell whose file it
was. He stated that there were two people living in the
home—the defendant and the decedent—and that he
did not know who the documents belonged to at the
time. He did not recall seeing the defendant’s name or
signature on any of the documents, and, thus, he could
not verify whether the writings belonged to the defen-
dant. He also testified that, in his experience, contacting
an attorney before an arrest would be unusual and
that he ‘‘had no evidence to support the fact that [the
defendant] had contacted the attorney at that time.’’
After progressing through the file, Clabby began to real-
ize that it was likely that exhibit B did in fact belong
to the defendant. He nonetheless continued to read
through the entire file.
Clabby also looked through exhibit A, labeled ‘‘INCI-
DENT 2017,’’ which was located directly behind the
‘‘CRIMINAL DEFENSE ATTORNEY Oct 2017’’ file. The
trial court credited Clabby’s testimony that he read out
loud from a document located in the incident file but
never read out loud from documents located within the
criminal defense file.18 Several other detectives were
present when Clabby read from the incident file. Clabby
testified that he did not discuss the contents of the files
with the other state troopers on the scene. Clabby fur-
ther testified that, when he realized the gravity of the
contents of the criminal defense file, he called Vayan into
the room, they discussed the matter, and brought it to
the attention of Davison. Clabby testified that he then
placed the documents in a banker’s box so that they
could be moved to the living room for processing. Vayan
corroborated the sequence of events outlined by Clabby,
and the trial court credited Vayan’s testimony as well.
Preleski testified as to how the prosecution of the
defendant proceeded following the February 6, 2018
search and seizure of the documents. Preleski testified
that Watson, the prosecutor, contacted him on March
19, 2018, regarding the seized documents. That same
day, Preleski personally reviewed the documents and
became concerned ‘‘that there may have been docu-
ments that were covered by the attorney-client privi-
lege.’’ The following day, March 20, 2018, Preleski noti-
fied defense counsel, and the administrative judge, who
also was the presiding criminal judge for the New Brit-
ain judicial district, about the nature of the documents.
The materials were then submitted under seal to the
court on either March 21 or 22, 2018. Within those few
days, Preleski also alerted Chief State’s Attorney Kevin
T. Kane to indicate to him that he ‘‘[felt] that we had
a Lenarz issue in the office with respect to . . .
those documents.’’
About two months later, on May 10 and 11, 2018, Pre-
leski and Kane reviewed all of the seized documents
after deciding that Preleski’s office, inclusive of the
prosecutor, Watson, ‘‘would, in substance, become the
taint team’’—‘‘a separate group of government attor-
neys who would be responsible for litigating any issues
that may arise concerning the government examination
of [the] defendant, but who would not communicate
what they learned to the prosecutors.’’ United States
v. Taveras, 233 F.R.D. 318, 320 (E.D.N.Y. 2006). Between
May 17 and 21, 2018, Preleski conducted interviews to
determine whether the state police Western District
Major Crime Squad could continue in an investigatory
role. Preleski and Watson decided that the case would
be removed from the Western District Major Crime
Squad and that any further investigation would be han-
dled by the state police Central District Major Crime
Unit. Individuals from the Western District Crime Squad
were told not to discuss the contents of the documents
they had seized.
Preleski also testified that he and Watson decided
that the case, moving forward, would be handled by the
Hartford judicial district under the direction of Hartford
State’s Attorney Gail P. Hardy and Supervisory Assis-
tant State’s Attorney Vicki Melchiorre. Preleski testified
that he took steps to confirm that the Hartford judicial
district had not had any access to the contents of the
documents. Preleski recommended, and the trial court
adopted, additional steps regarding the sealing of the
documents to prevent exposure to the documents by
others. The trial court did not adopt Preleski’s recom-
mendation to order the case to be handled by the Hart-
ford judicial district. Instead, the court ordered the case
transferred to a judicial district to be determined by
the chief administrative judge for criminal matters, with
input from Kane, to be litigated by prosecutors who
had no knowledge of the privileged communications.
Our review of the trial court’s remedy regarding the
search and seizure of the documents at issue, and the
remedial steps instituted following the seizure, leads
us to conclude that the trial court did not abuse its
discretion by denying the defendant’s motion to dismiss
the criminal charges against her. Rather, the trial court
thoughtfully adopted well reasoned steps that can limit
any unauthorized exposure to documents covered by
the privilege.
The character of the majority of the privileged docu-
ments that prosecutors read in the present case is quite
different from the e-mails between the defendant and
his attorney that were implicated in Lenarz. Many
appear to be common personal documents such as
receipts, bills, invoices, etc. Other documents are clearly
of a personal and private nature in that they describe
a range of traumatic to everyday events of the defendant’s
life but not communications to an attorney or trial strat-
egy. They read like contemporaneous notes, more akin
to journal notes, and, although personal and private,
do not obviously suggest a communication with an
attorney or a trial strategy. The documents that appear
to pose questions for an attorney could have been inter-
preted as the defendant’s thoughts about what a trial
strategy might be but are not as specific or detailed as
the communications in Lenarz. In Lenarz, the defen-
dant and the attorney had communicated about specific
witnesses and what they would potentially say while
testifying during trial. See State v. Lenarz, supra, 301
Conn. 446–47 and n.22. In the present case, it was not
apparent to the detectives reviewing the documents
whether the defendant had actually communicated her
strategies to her attorney, whether the attorney agreed,
who the witnesses might be, or what strategy might be
adopted. Even if we assume, arguendo, that some of
the documents at issue did outline trial strategy, the
state has already conceded that the defendant was prej-
udiced but argues that the prejudice can be cured by
remedial measures.
Also, the trial court in Lenarz had alerted the parties
that there could be privileged materials in the defen-
dant’s computer. See id., 420. The prosecutor in Lenarz
defied a court order, read privileged materials, and held
onto those materials for six weeks before notifying
defense counsel. Id., 421. In contrast, the trial court in
the present case credited the testimony of witnesses
who stated that the exposure to privileged materials
was not intentional. Once alerted to the privileged
nature of the documents, the state halted the investiga-
tion of the defendant, created a taint team, removed
the case from the original investigative body, and
assigned new prosecutors. The state’s action in the pres-
ent case was swift, in contrast to the state’s actions
in Lenarz.
Finally, and critical to the issue of remedying preju-
dice, in Lenarz, the case had proceeded through trial
to the defendant’s conviction with the same prosecutor
who had read and held onto trial strategy materials for
six weeks. See id., 426. Because the prosecutor had
been exposed to the privileged materials, the state had
the use of the information in preparing for trial. Id.,
445. The record even ‘‘strongly’’ suggested that the
‘‘prosecutor may have revealed the defendant’s trial
strategy to witnesses and investigators’’; id.; and, there-
fore, a remedy short of dismissal of the charges of which
the defendant had been convicted, including remand,
would not have been appropriate. See id., 444. We
explicitly stated in Lenarz that one method of curing
prejudice is by appointing a new prosecutor who has
not been exposed to the privileged materials—the exact
remedy that the trial court ordered in the present case
before the investigation, which was in its incipient
stages, proceeded any further. See id., 451. Thus, we
conclude that the trial court in the present case did not
abuse its discretion by not dismissing the charges prior
to trial and, instead, entering an order intended to pro-
tect the defendant from further prejudice.
Regarding the exposure of documents that did occur
and any prejudice that the defendant may have suffered
as a result of the public’s exposure to them, the defen-
dant’s constitutional right to individual voir dire of
potential jurors under article first, § 19, of the state
constitution, which is incorporated in the General Stat-
utes and the rules of practice, can serve to mitigate any
prejudice. See General Statutes § 54-82f; Practice Book
§ 42-12. ‘‘One of the principal purposes of individual
voir dire . . . is the discovery of factors that may pre-
dispose a prospective juror to decide a case on legally
irrelevant grounds . . . . [I]f there is any likelihood
that some prejudice is in the juror’s mind which will
even subconsciously affect his [or her] decision of the
case, the party who may be adversely affected should
be permitted questions designed to uncover that preju-
dice.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) State v. Griffin, 251 Conn.
671, 698–99, 741 A.2d 913 (1999). We are confident that
individual voir dire can mitigate any prejudice to the
defendant by revealing whether prospective jurors have
been exposed to any privileged materials and by uncov-
ering any potential biases. We will not prejudge, before
trial, whether the trial court can or cannot ensure the
defendant a fair trial. See State v. Reynolds, supra, 264
Conn. 223 (‘‘A defendant cannot rely . . . on the mere
fact of extensive pretrial news coverage to establish
the existence of inherently prejudicial publicity. Promi-
nence does not, in itself, provide prejudice.’’ (Internal
quotation marks omitted.)).
The defendant contends that she was unable to dem-
onstrate the extent of the prejudice she suffered as a
result of the public’s exposure to privileged materials
because the trial court precluded her from offering the
testimony of David Lasker, ‘‘an expert witness in the
subject matter of quantifying media exposure to the
general population through the medium of the Internet,
radio and television.’’ According to the defendant,
Lasker ‘‘would have demonstrated [the existence of]
insurmountable prejudice’’ as a result of the publication
in the media of the ‘‘narrative’’ within the arrest warrant
application. The trial court permitted the defendant to
make an extensive offer of proof as to the testimony
of Lasker. On the basis of that proffer, the court deter-
mined that Lasker’s opinion would not be sufficiently
reliable, would not be relevant, and would not assist
the finder of fact in determining whether any prejudice
could be remedied. We conclude that the trial court
did not abuse its discretion in precluding the expert’s
testimony at this stage of the proceeding.
The defendant’s main concern centered on the fact
that the public was exposed to privileged materials
when the police quoted from those materials in the
arrest warrant application, which the media published.
That concern is obviated by our determination that
information in the documents within exhibit A that was
then recited in the arrest warrant application is not
covered by the attorney-client privilege. We conclude
that the trial court did not abuse its discretion in pre-
cluding the testimony of Lasker on the basis of its articu-
lated justifications and our determination that exhibit
A is not covered by the attorney-client privilege. More-
over, we will not presume that the trial court—as in
any case—cannot, through individual voir dire and
instructions to the jury, ensure that the defendant will
not suffer prejudice from media coverage surrounding
this case when it proceeds to trial.
Therefore, we conclude that the trial court did not
abuse its discretion in determining that dismissal of the
charges against the defendant is not warranted and
that the state met its burden of showing, by clear and
convincing evidence, that the remedial steps it took
can cure any presumed prejudice and prevent future
prejudice to the defendant.
The trial court’s order and decision denying the defen-
dant’s motion to dismiss the charges against her are
affirmed.
In this opinion the other justices concurred.
* April 8, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 52-265a (a) provides in relevant part: ‘‘[A]ny party to
an action who is aggrieved by an order or decision of the Superior Court
in an action which involves a matter of substantial public interest and in
which delay may work a substantial injustice, may appeal under this section
from the order or decision to the Supreme Court . . . .’’
2
We describe some of the documents contained within exhibit B only
generally to protect the defendant’s attorney-client privilege.
3
Pursuant to the trial court’s order, exhibit B remains under seal in the
trial court clerk’s office, subject to review only upon prior authorization by
a judge of the Superior Court.
4
In accordance with our policy of protecting the privacy interest of the
victims of family violence, we decline to identify the decedent. See General
Statutes § 54-86e.
5
Two narratives are located within exhibit A, and one narrative is located
within exhibit B. The substance and text of the narratives themselves are
copies in that they are handwritten and exactly identical. Because the defen-
dant did not establish which is the original version of the narrative and
which are copies, we refer to them all as ‘‘copies.’’ Each copy, however, is
marked differently. During the Lenarz hearing, State Police Detective
Edmund Vayan testified, and defense counsel acknowledged, that the docu-
ments are not identical. Copy #1 (exhibit A) has the defendant’s first and
last name in handwriting across the top of page one. No other copy has
that marking. Copies #1 and #2 (exhibit A) have a thin blackout mark at
the top of page one. Copy #3 (exhibit B) has a much thicker blackout mark
at the top of page one. Copies #1 and #2 have the year 2017 handwritten
and circled in the top right corner of the first page, just above the handwritten
initials of the defendant. On Copy #3 (exhibit B), the year 2017 is handwritten
directly above the defendant’s initials, but is not circled, in the top right
corner of the first page. The bottom right corner also contains the handwrit-
ten initials of the defendant. State Police Detective Corey Clabby testified
that the arrest warrant application quoted from the copy contained within
exhibit A, not exhibit B.
6
Although both exhibit A and exhibit B contain the ‘‘narrative,’’ only
exhibit B contains trial strategy documents.
7
The defendant also claimed that the invasion of her attorney-client privi-
lege impacted her fifth amendment right against self-incrimination under
the United States constitution, arguing that she ‘‘is now faced with the heavy
burden of having to waive her privilege of not having to testify and may be
forced to testify to explain’’ the case that the state will mount against her.
The defendant does not pursue this claim in this appeal.
8
Exhibit B contains a plethora of documents—about 150 pages—some
of which are also included in exhibit A. Both exhibit A and exhibit B contain
the ‘‘narrative’’ document. See footnote 5 of this opinion. Exhibit B also
includes multiple trial strategy documents that were not included in
exhibit A.
9
Section 7-4 (b) of the Connecticut Code of Evidence provides in relevant
part: ‘‘The facts in the particular case upon which an expert bases an opinion
may be those perceived by or made known to the expert at or before the
proceeding. . . . The facts relied on pursuant to this subsection are not
substantive evidence, unless otherwise admissible as such evidence.’’
10
In Lenarz, the defendant testified in an ex parte hearing before the trial
court that he prepared the documents in order to obtain advice from counsel
and then communicated those documents to counsel. See State v. Lenarz,
supra, 301 Conn. 423; id., 457–58 (Palmer, J., dissenting). The trial court
credited that testimony and found that the documents were privileged
because the defendant had established the necessary element of communica-
tion. Id., 423; see id., 458 n.5 (Palmer, J., dissenting). On appeal to this
court, the state in Lenarz did not contest the propriety of that procedure.
In the present case, the defendant requested an ex parte hearing and
offered to submit a sworn affidavit. The state objected, and the trial court
did not permit ex parte testimony from the defendant. We express no view
about whether the trial court could appropriately permit the defendant to
create a record in this fashion because the defendant does not brief the
issue in this appeal.
The trial court excluded and did not consider the direct testimony of
Karpe or any of his testimony on cross-examination on the basis of defense
counsel’s invocation of the attorney-client privilege during Karpe’s testimony
on cross-examination. We similarly do not consider any of Karpe’s testimony
on direct or cross-examination, as it is not part of the factual record.
11
Section 7-2 of the Connecticut Code of Evidence provides: ‘‘A witness
qualified as an expert by knowledge, skill, experience, training, education
or otherwise may testify in the form of an opinion or otherwise concerning
scientific, technical or other specialized knowledge, if the testimony will
assist the trier of fact in understanding the evidence or in determining a
fact in issue.’’
12
Although labeling reflects one indication of an intent to communicate
a document or a file of documents to an attorney, certainly, labeling a file
‘‘Confidential Attorney-Client Privilege’’ would not be sufficient on its own
to establish that the privilege covers every document within the file. See
Fisher v. United States, supra, 425 U.S. 403 (‘‘since the privilege has the
effect of withholding relevant information from the [fact finder], it applies
only where necessary to achieve its purpose’’). Indeed, our in camera review
of the documents within exhibit B reveals that it is by no means obvious
that certain documents are privileged, for example, a certificate of baptism
from 1947, a copy of a parking meter receipt, a printout of a facsimile receipt
log from 2012, and printed directions from the website Mapquest. The parties
do not challenge the trial court’s acceptance of their written stipulation that
the contents of exhibit B are privileged, and we, therefore, decline to analyze
each document within exhibit B to evaluate its privilege status. See part I
of this opinion. That conclusion, however, does not prevent this court from
analyzing and deciding the issues on which the parties in fact disagree—
whether the defendant established that the privilege covers the documents
within exhibits A and C, and whether Lenarz compels the dismissal of the
charges against her.
13
Exhibit A is made up not of the original documents seized from the
defendant’s home but of photocopies made by the police. Therefore, our
ability to review the documents is somewhat hampered. The trial court did
not make a finding as to whether the materials in exhibit A were exact
copies of the documents within exhibit B (which is made up of the documents
actually seized from the defendant’s home). Although the contents of the
narratives are identical, the documents have different markings. For exam-
ple, the narratives in exhibits A and B contain the initials of the defendant
and the year in different locations on the pages. See footnote 5 of this
opinion. The defendant did not establish which narrative she handwrote
first, when she made copies, or when and for what purpose she marked
those copies differently. As noted in footnote 3 of this opinion, the trial
court has sealed exhibit B. We have reviewed exhibit B in camera and
necessarily describe the documents within it only generally.
14
The following colloquy took place:
‘‘The Court: . . . That’s a stipulation, the state, stipulating, Attorney Wat-
son, that exhibit B . . . in its entirety [consists of] items protected by the
attorney-client privilege?
‘‘[The Prosecutor]: That’s the basis of the stipulation, Your Honor. What
I’ve discussed with [defense counsel] is that the state didn’t feel as though
it could make an argument to the court in light of the evidence that was
adduced at trial that would support a finding that it wasn’t. So, the state
entered into that stipulation agreement with [defense counsel], specifically
as it pertains to [exhibit B], which is the criminal defense attorney file
marked October . . . 2017; that stipulation doesn’t cover, as it’s—it’s not
specifically indicated in that document, but it doesn’t cover [exhibits A
and C]. . . .
‘‘The Court: And, with specificity, the state is not stipulating and is
contesting whether or not the contents of state police [exhibit A and C]
are privileged?
‘‘[The Prosecutor]: Correct, Your Honor. . . .
‘‘The Court: Had you discuss[ed] this with your client? . . .
‘‘[Defense Counsel]: Yes, Your Honor. . . . I faxed a copy to her. We
reviewed it. We discussed it on multiple occasions over the weekend, and
she agrees with the same.’’ (Emphasis added.)
15
The state asserts in its brief to this court that the defendant waived the
privilege as to exhibit A by failing to claim it at the time of the police search
of her home, at the time of her arrest, or at her arraignment. According to
the state, the defendant was the only person who knew about the existence,
location, and placements of the documents in her home, and she alone had
the ‘‘responsibility to assert and maintain [the attorney-client privilege] . . .
and failed to do so.’’ (Citation omitted.) Our precedent on the issue indicates
that ‘‘[voluntary] disclosure of confidential communications . . . consti-
tutes a waiver of [the] privilege as to those items.’’ (Internal quotation marks
omitted.) Harp v. King, 266 Conn. 747, 767, 835 A.2d 953 (2003). Because
we conclude that the trial court did not err in determining that the defendant
failed to establish that the documents within exhibit A are covered by the
privilege, however, we need not reach the issue of whether she waived
the privilege.
16
The trial court found that a limited number of documents within exhibit
C were covered by the privilege but did not identify those documents. The
state does not challenge the trial court’s conclusion that certain documents
within exhibit C are privileged. Rather, the state contends that, because
none of the documents within exhibit C reflects ‘‘trial strategy,’’ the defen-
dant bears the burden of establishing that she has been prejudiced by any
invasion of the attorney-client privilege as to those documents. See State
v. Lenarz, supra, 301 Conn. 427–28 n.8. The trial court did not abuse its
discretion in determining that the defendant did not put forth evidence to
establish that dismissal of the charges against her is warranted on the basis
of prejudice to her prosecution resulting from the fact that the police read
the contents of exhibit C. See part III of this opinion.
17
The record is unclear as to whether the locks were cut before or after
the second search warrant was issued or after it was brought to the officers
at the defendant’s home by Fitzsimons. The trial court found that the docu-
ments were seized during the execution of the second search warrant.
Neither party challenges this finding in this appeal, and the issue of the
legality of the search under the fourth amendment to the United States
constitution is not before us.
18
To the extent that the defendant argues that Clabby either read from the
criminal defense file or read out loud from the incident file after intentionally
locating a similar document within the incident file, the trial court explicitly
credited Clabby’s testimony as to how the discovery and reading of docu-
ments proceeded. As a reviewing court, we defer to such credibility determi-
nations. See, e.g., State v. Kendrick, 314 Conn. 212, 223, 100 A.3d 821 (2014).