Opinion
No. H15N-MV 10-0365585
September 28, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS
On March 25, 2010, the defendant, Christopher Abbate (hereinafter "Abbate" or "defendant"), was arrested and charged with one count of operating a motor vehicle under the influence of alcohol ("DUI") in violation of Conn. Gen. Stat. § 14-227a(a)(1) and failure to drive in the proper lane in violation of Conn. Gen. Stat. § 14-236, all of which arose out of a motor vehicle stop. At the time of his arrest, the defendant was on probation. On May 19, 2010, the defendant was also served with a warrant for violation of probation which alleged that he violated his conditions of probation by testing positive for cocaine and by his arrest for DUI on March 25, 2010.
A hearing on the violation of probation charge was conducted on December 22, 2010. At the hearing, the state opted to pursue only the technical violation of probation and not rely on the arrest for DUI until the disposition phase. At the conclusion of the adjudicatory phase, the court found that the defendant had violated a standard condition of his probation not to violate the law by possessing and using cocaine. On January 11, 2011, the defendant's probation was revoked and he was sentenced to two years of incarceration to be suspended after 18 months and 2 years of probation. The defendant has appealed the conviction for violation of probation.
The charges relating to the DUI arrest on March 25, 2010 were scheduled for jury trial. On July 7, 2011 the defendant filed a motion for speedy trial. The motion was granted on the same day and, at the request of the defense, the matter set down for jury trial on August 4, 2011.
On August 4, 2011, the defendant moved to dismiss the charges pending against him claiming that his sixth amendment rights were violated because the police tape recorded the defendant while he was in a booking room and at a time he was consulting with his attorney on whether or not to take a Breathalyzer test. While the defendant was aware of the existence of the booking tape prior to the probation violation hearing in December of 2010, he did not file the motion to dismiss until becoming aware of the recent Supreme Court decision in State v. Lenarz, 301 Conn. 417, 22 A.3d 536 (2011).
PROCEDURAL BACKGROUND
On August 4, 2011, the court conducted an evidentiary hearing on defendant's motion to dismiss. The court heard the testimony of Officer Jeffrey Poulin, the arresting officer. The court continued the hearing to allow the defendant an opportunity to contact any additional witnesses. On August 17, 2011, both parties agreed that the court did not need to hear from additional witnesses. The parties further stipulated to the admission of a CD-ROM copy of the videotape recording of the booking process. The court set a briefing schedule and requested that counsel advise as to whether oral argument was requested. On September 8, 2011, the defendant filed a post-hearing brief in support of his motion to dismiss. The State filed a response on September 26, 2011. Neither party requested oral argument.
While the prosecutor initially requested oral argument, the request was subsequently withdrawn.
FINDINGS OF FACT
The court finds the following facts by a fair preponderance of the evidence. On March 25, 2010, the defendant was stopped by officer Poulin, pursuant to a motor vehicle stop, on the Berlin Turnpike in the Town of Wethersfield. Officer Poulin, who has been employed as a member of the police force since December of 2003, suspected the defendant was driving under the influence. After conducting field sobriety tests at the scene, the officer placed the defendant under arrest for DUI and failure to drive in the proper lane. At the scene, Officer Poulin advised the defendant of his rights prescribed in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He then transported the defendant to the police station for processing.
At the station, the defendant was placed in a separate room used for booking of DUI cases. The room contains a bench, a desk and a Breathalyzer machine. He was given a notice of rights form and advised of his statutory rights and warnings related to the results of or refusal to take a blood, breath or urine test as chosen by the officer. The officer advised the defendant that he had selected the Breathalyzer test and that the defendant had a right to consult with an attorney prior to deciding whether or not to take the test. The defendant elected to speak with an attorney.
According to Officer Poulin, it was the police department's protocol to videotape and record the events in that room. As reflected in the videotape, Officer Poulin assisted the defendant in placing a phone call to his attorney. After a failed attempt to connect, the attorney is reached. Officer Poulin exited the room but stood outside the doorway to observe the defendant. He testified that until the processing is complete, police policy requires the officer to keep visual observation of the defendant. "so they don't put anything in their mouth."
Once the defendant initiated the conversation, he told Officer Poulin, "can you shut that door?" He then pointed to Officer Poulin and yelled out "shut the door." The officer responded that he could not close the door because he had to observe him but that he was not listening to the conversation. The defendant then told his attorney "yeah, he's standing outside the door, shouldn't he shut it?" In an apparent attempt to keep others from hearing his conversation, he turned his back to the door and leaned against the corner wall to continue speaking with his lawyer. While the conversation is hard to decipher, the following statements can be heard on the tape:
Kevin listen to me, listen to me, not good news, I am at the Wethersfield Police Department right now, they pulled me over on the Berlin Turnpike suspicion of DWI about 8:15 . . . excuse me [he yells to officer to shut the door and then leans against the wall-conversation continues but hard to decipher] . . . I'm probably over, it's been 3 to 4 hours . . . you see I really didn't eat either that's the problem . . . yeah he did . . . yeah but I am on probation and I have two years hanging over my head, will this be a violation? . . . Do I want to? No, I was there . . . no no I am at the police station . . . yeah he did, I wasn't 100% perfect, that is impossible to do that you know that Kevin . . . hello yeah . . . Kevin you're cutting out . . . I don't feel comfortable doing this thing, you know what I am saying? And so how is that going to affect my current case? . . . I am going to have 2 more cases right man, I am going to have the violation of probation cases . . . Alright Look . . . I am going to stretch it out as long as I can . . . I need you to represent me . . . Do I have? No I don't why . . . are they going to put me on a bond . . . can you get me a bondsmen down here . . . Kevin can you do me a favor, can you call my wife too, she's going to kill me dude, she's going to kill me . . . get me a bondsmen down there ASAP, who do you use? Nick what? Nick who? . . . He'll bring me home and we will give him his money . . . Alright, please I am going to hire you on this case Jesus . . . I F$%# # it up.
Once the defendant completed the phone call and hung up the phone, the officer returned to the room. The officer asked the defendant if he was willing to take the Breathalyzer test, to which he responded "no." They stepped out of the room into a larger booking area and the conversation continued. Again, the communications between the defendant and the officer in the adjacent room are hard to decipher.
After the defendant's refusal to take the test, Officer Poulin completed the A-44 form with the defendant and asked him the same or similar questions to those asked at the scene. According to the A-44, the defendant refused to answer any questions relating to when, where, what and how much he had to drink. The first time that Officer Poulin viewed the tape recording was just prior to the probation violation hearing and in preparation for that hearing. He did not use the contents of the tape to further his investigation and it did not factor into the determination of the charges. His investigation was complete with the arrest and charges.
Both counsel reported to the court that they first became aware of the existence of the tape recording in December of 2010, prior to the start of the violation of probation hearing. Both counsel viewed the booking videotape together and the prosecutor advised defense counsel that the state would not seek to use the tape or introduce it during trial. The tape was not introduced into evidence at the probation violation hearing.
DISCUSSION
The first inquiry here is whether the communications were protected by the attorney client privilege. "Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice . . . [but] statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality." State v. Burak, 201 Conn. 517, 526, 518 A.2d 639 (1986), citing State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985); State v. Colton, 174 Conn. 135, 138-39, 384 A.2d 343 (1977)
In this case, the defendant and his attorney were aware that the officer was standing close by and observing the defendant and, as such, his conversation might not be confidential. However, there was no question that the defendant was consulting with an attorney for the purposes of seeking legal advice and sought to do so in confidence. While the sixth amendment right to counsel does not apply to an accused's decision whether to consent to a chemical test or prior to the initiation of judicial criminal proceedings, State v. Cichowski, 203 Conn. 97, 102 (1987), "once access is provided, privacy must be ensured." State v. Ferrell, 191 Conn. 37, 45, 463 A.2d 573 (1983). The unilateral decision of the police to tape record the booking process, including the phone call to counsel, does not defeat the privilege.
While the police department may have had sound policy reasons for tape recording the booking process or observing a suspect prior to the administration of sobriety tests, the tape recording of a phone call to counsel is ill advised. See State v. Cichowski, 203 Conn. 97, 99 (1987) (court noted that police were present to observe whether the defendant smoked, ate, drank, belched or vomited because those actions might affect the results of the intoximeter). Certainly measures could be taken to preserve the integrity of the booking process and yet afford confidential communications with counsel such as suspension of recording during the consultation and observation of suspects in the booking room through a glass window.
The next inquiry is whether the invasion into the attorney client privilege by the state was so prejudicial to warrant dismissal of the charges as set forth in the Lenarz case.
In Lenarz, our Supreme Court concluded that "prejudice may be presumed when [a] prosecutor has invaded the attorney-client privilege by reading privileged materials containing trial strategy, regardless of whether the invasion of the attorney-client privilege was intentional." Id., 425. The court further concluded that "the state may rebut that presumption by clear and convincing evidence . . . [W]hen a prosecutor has intruded into privileged communications containing a defendant's trial strategy and the state has failed to rebut the presumption of prejudice, the court, sua sponte, must immediately provide appropriate relief to prevent prejudice to the defendant." Id., 425-26.
In Lenarz, the court concluded that the communications in question contained trial strategy. Nonetheless, the court, while analyzing the law governing governmental intrusion on the attorney-client privilege, noted that "[i]n cases in which the communications do not contain the defendant's trial strategy, the burden is on the defendant to establish a sixth amendment violation by showing that he was prejudiced by the government's intrusion into the communications." State v. Lenarz, supra, CT Page 20725 301 Conn. 427 n. 8.
In determining that a presumption applies, the court reasoned that "the burden is not on the defendant to establish that he was prejudiced when the prosecutor has intruded on attorney-client communications that contain information concerning the defendant's trial strategy. Rather, because the disclosure of such information is inherently prejudicial, prejudice should be presumed, regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on that question." Id., 436-37.
In Lenarz, the court specifically noted that "even if the prosecutor could not have known that [the subject] document was privileged when he read it, we would still conclude that the defendant was prejudiced by his knowledge of its contents." Id., 449.
However, the court also noted that "mere unintentional intrusion into privileged information containing trial strategy" does not automatically constitute a sixth amendment violation. Id., 437 n. 14. "For example, if the government can establish that it notified the defendant and the court immediately of [an] intrusion, that it ensured that no government official with knowledge of the information had any contact with witnesses or investigators and that it ensured that no such person was involved in the prosecution of the case, the disclosure could well be harmless." Id.
Although subjective intent has no bearing on the burden shift when trial strategy communications are disclosed to the government, the presumption of prejudice may be rebuttable. Id., 437-38. "For example, the state may be able to show that no person with knowledge of the privileged communications had any involvement in the investigation or prosecution of the case, the privileged communications contained only minimal information or that the state had access to all of the privileged information from other sources." Id., 438. Nonetheless, "[i]n light of the important constitutional right at issue," the Lenarz court concluded that "the state must rebut the presumption of prejudice by clear and convincing evidence." (Emphasis added.) Id.
Should the government fail to rebut the presumption of prejudice by clear and convincing evidence, "the burden is [then] on the state to prove by clear and convincing evidence that any prejudice to the defendant can be cured by a less drastic remedy than dismissal, such as the appointment of a new prosecutor who has not been exposed to the privileged materials." Id., 443-44. Moreover, whenever the court learns that the state has obtained knowledge of a defendant's trial strategy, the court must, sua sponte, "require the state to prove by clear and convincing evidence that prejudice to the defendant could be prevented by the proposed remedy and, if the state meets its burden, to order that relief, even in the absence of a request by the defendant." Id., 444.
The present matter is distinguishable from Lenarz. Here, the audible portions of the communications that were in the possession of the state appear to be of no strategic value. The present communications, in contrast to those in Lenarz, do not involve the credibility of potential witnesses, suggestions for witness examination or discussions of potential evidence.
Nor do they concern specific arguments or defenses. Rather, the communications involve a one-sided discussion of the defendant's options regarding a Breathalyzer test and the potential impact of such test on his pending probation status. At no time can the defendant be heard discussing how best to proceed at trial, the veracity of evidence, or the relative strengths and weaknesses of potential witnesses. At most, the communications imply that the defendant was concerned about his blood alcohol level and was presumably advised by his counsel to refuse the test — a fact that would have been available to the state in the absence of the recording.
Even assuming, arguendo, the court were to construe the communications as privileged trial strategy, it is apparent that the defendant was not substantially prejudiced by the state's intrusion on the conversation. The defendant claims that he was prejudiced because the police gathered "inside knowledge" from listening to and recording the defendant's side of the conversation. He claims that it will impinge on his ability to make a decision regarding testifying. He does not elaborate on what that "inside knowledge" is or how it would interfere with his decision to testify at trial. To the extent the defendant made any admissions or inculpatory statements to his attorney, the state does not intend nor would it be permitted to use those statements either in its case in chief or in cross-examination of the defendant. See Ferrell, supra, 191 Conn. at 45 ("statements obtained in violation of the privacy required to effectuate Miranda rights may not be admitted into evidence against the defendant's case in chief, without violating the defendant's due process right to a fair trial").
Other than an admission to his lawyer that he did not want to take the test, all that can be gleaned from the muffled conversation is that he was nervous about what would happen to the status of his probation and his wife's reaction to this DUI arrest. To the extent the refusal to take the Breathalyzer test affects trial strategy, that information would be available to the state. Likewise, his probation status would also be known to the state. Thus, the defendant was not prejudiced by the intrusion.
In sum, the defendant's motion to dismiss lacks merit and is denied.