State v. Cascone

487 A.2d 186, 195 Conn. 183, 1985 Conn. LEXIS 680
CourtSupreme Court of Connecticut
DecidedFebruary 5, 1985
Docket11527
StatusPublished
Cited by50 cases

This text of 487 A.2d 186 (State v. Cascone) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cascone, 487 A.2d 186, 195 Conn. 183, 1985 Conn. LEXIS 680 (Colo. 1985).

Opinion

Peters, C. J.

The narrow issue presented by this appeal is the scope of the attorney-client privilege of an accomplice who testifies at a criminal trial. The defendant, Thomas Cascone, was charged in a two-count substitute information with robbery in the first [185]*185degree in violation of General Statutes § 53a-134 (a) (4),1 and with conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48.2 After a jury trial, the defendant was found guilty as charged on both counts and judgment was rendered accordingly. The defendant appeals from that judgment.

The jury could have reasonably found the following facts. On July 13,1980, Peter Fuller robbed a Kentucky Fried Chicken store in Avon. The store was at that time managed by the defendant. Fuller carried out the robbery at the defendant’s direction in return for a promise of one hundred dpllars and a trip to Florida. After the robbery, Fuller was charged with first degree robbery, but the state promised him that in return for his testimony against the defendant the charge would be reduced to second degree robbery and Fuller’s cooperation would be brought to the court’s attention. Before recruiting Fuller, the defendant had unsuccessfully attempted to persuade one Kevin Maloney to rob the store.

The defendant, who denied any complicity in the robbery, raises only one issue on appeal. He contends that the trial court erred when it granted the state’s motion in limine to preclude defense counsel from asking either Fuller or Attorney Peter Zaccagnino, who had formerly [186]*186represented both Fuller and the defendant, about allegedly exculpatory pretrial statements made by Fuller to Zaccagnino. The defendant asserts that at a time when both Fuller and the defendant were represented by Zaccagnino on charges arising from the Avon robbery, Fuller twice told Zaccagnino that the defendant had not been involved in the crime. The defendant alleges that Fuller made one such statement during a conference among Fuller, the defendant and Zaccagnino in Zaccagnino’s office. The defendant further alleges that Fuller repeated this statement when Fuller and Zaccagnino were in court to enter a plea to an information filed against Fuller in which he was accused of having committed the robbery. Arguing that the trial court misconstrued the attorney-client privilege, the defendant maintains that he was prejudiced by his inability to attack Fuller’s credibility through the presentation of this evidence.

We agree with the defendant’s claim in part. In the circumstances of this case, the first statement should have been admitted because it does not fall within the attorney-client privilege. We cannot, however, judge the propriety of the exclusion of the second statement because we lack an adequate factual record.

The basic principles of the attorney-client privilege are undisputed. Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice. Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931); Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 12.5. By contrast, statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality. State v. Colton, 174 Conn. 135, 138-39, 384 A.2d 343 (1977); McCormick, Evidence (2d Ed. 1972) § 91, p. 188.3 When [187]*187two or more people consult an attorney together on a matter of joint interest, these competing considerations are normally resolved by allowing their communications to be privileged as to the outside world, though not as to each other in a later controversy between themselves. See Grand Trunk Western R. Co. v. H. W. Nelson Co., 116 F.2d 823, 835 (6th Cir. 1941); Hellyer v. Hellyer, 129 Ariz. 453, 456, 632 P.2d 263 (1981); McCormick, Evidence, supra, pp. 189-90; 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2312. In the context of criminal proceedings, this compromise has been applied to protect communications between codefendants and their joint attorney when the conversation related to their participation in the charged offense. See People v. Kor, 129 Cal. App. 2d 436, 440-43, 277 P.2d 94 (1954); cf. Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 29 (N.D. Ill. 1980); Matter of Grand Jury Subpoena, 406 F. Sup. 381, 388-89 (S.D.N.Y. 1975) (privilege applies to discussions between codefendants and their several attorneys regarding the presentation of a common defense).

These principles, when applied to the statement allegedly made in Zaccagnino’s office, compel the conclusion that the communication was privileged when made. Both Fuller and the defendant were then represented by Zaccagnino on charges arising out of one and the same robbery. The privilege was not per se destroyed by the fact that, before the defendant’s trial, both Fuller and the defendant had retained new counsel.

The question that remains is whether Fuller’s later cooperation with the state and his willingness to testify against the defendant destroyed the privilege previously established. We can identify two conflicting lines [188]*188of cases that address this issue. On the one hand, the state urges us to rely on cases that hold that a privilege involving joint clients survives any later controversy between them unless, in subsequent litigation, the clients are opposing parties. In State v. Archuleta, 29 N.M. 25, 31, 217 P. 619 (1923), the court upheld a claim of privilege, reasoning that an accomplice who testifies for the state “is in no sense a party to the proceeding, and is in no legal sense in controversy or litigation with the [defendant].” See Matter of Grand Jury Subpoena, supra, 393-94. On the other hand, in support of the defendant’s claim, we have found cases holding that an accomplice who appears as a witness for the prosecution waives all evidentiary privileges. See People v. Gallagher, 75 Mich. 512, 516, 42 N.W. 1063 (1889); Jones v. State, 65 Miss. 179, 183-84, 3 So. 379 (1887); annot., 51 A.L.R.2d 521, § 4 (1957).

We decline to adopt either of these categorical alternatives. It is important to accommodate the conflicting values that the attorney-client privilege implicates in this case. Although the existence of the privilege encourages the candor that is necessary for effective legal advice; see Rienzo v. Santangelo, 160 Conn. 391, 395, 279 A.2d 565 (1971); Goddard v. Gardner, 28 Conn. 172, 174-75 (1859); the exercise of the privilege tends to prevent a full disclosure of the truth in court. See Turner’s Appeal, 72 Conn. 305, 318, 44 A. 310 (1899). Indeed, in the case at bar the state itself “asserted” the privilege by filing its motion in limine4 and transformed the privilege from a shield into a sword.

[189]

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Bluebook (online)
487 A.2d 186, 195 Conn. 183, 1985 Conn. LEXIS 680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cascone-conn-1985.