State v. Kosuda-Bigazzi

• Decision Date: 08 April 2020
• Docket Number: SC 20341
• Citation: 250 A.3d 617,335 Conn. 327
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Linda KOSUDA-BIGAZZI

335 Conn. 327

250 A.3d 617

STATE of Connecticut

v.Linda KOSUDA-BIGAZZI

SC 20341

Supreme Court of Connecticut.

Argued October 15, 2019

Officially released April 8, 2020^*

Patrick Tomasiewicz, Hartford, 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).

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

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 defendant, 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 pursuant 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 publishing 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 prosecution 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 dismiss 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 defendant'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 purposes of the Lenarz hearing. The defendant did not establish that the documents are communications or that she created the documents with the intent to communicate 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 privileged documents within exhibit B. However, we conclude 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 dismissal 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 basement of the residence, Mellon observed human remains covered by a tarp. The Office of the Chief Medical Examiner 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 Western 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 warrant 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 containing estate planning documents. The day after the execution 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 defendant alleged that the police had read and inspected two documents protected by the attorney-client privilege—the narrative and a document reflecting her trial strategy.⁶ According to the defendant, the state could use the information in these documents "in plea negotiations, witness preparation, jury selection, and case presentation, including cross-examination and closing argument, 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 privilege, 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 numerous law enforcement witnesses, including the state's attorney for the New Britain judicial district, Brian Preleski, 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 testified 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 judicial district.

Having heard the evidence and considered the parties' positions, the trial court found as follows: Regarding 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 purpose of obtaining legal advice. The court found that the defendant failed to establish that the documents describing her medical condition were privileged because she had made only vague and generalized assertions about them that were insufficient to satisfy the narrowly construed 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...