State v. Lenarz

• Decision Date: 19 July 2011
• Docket Number: No. 18561.,18561.
• Citation: 301 Conn. 417,22 A.3d 536
• Parties: STATE of Connecticutv.Patrick J. LENARZ.
• Court: Connecticut Supreme Court

301 Conn. 417

22 A.3d 536

STATE of Connecticut

v.Patrick J. LENARZ.

No. 18561.

Supreme Court of Connecticut.

Argued Oct. 28, 2010.Decided July 19, 2011.

Kevin C. Ferry, with whom, on the brief, were Monique S. Foley, New Britain, and Peter G. Billings, for the appellant (defendant).Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Christopher Parakilas, supervisory assistant state's attorney, for the appellee (state).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.^*ROGERS, C.J.

The central issue in this case is whether a prosecutor's intrusion into communications between a defendant and his attorney that are subject to the attorney-client privilege requires the dismissal of the criminal charges against the defendant. The defendant, Patrick J. Lenarz, was charged in three informations, each of which charged the defendant with risk of injury to a child in violation of General Statutes § 53–21(a)(1) and (2), and sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(A). Before trial, the prosecutor came into possession of and read certain written materials belonging to the defendant that were subject to the attorney-client privilege. Upon learning this fact, the defendant filed a motion to dismiss the charges against him, which the trial court denied. After a trial, the jury returned a verdict of guilty on one count of risk of injury to a child in violation of § 53–21(a)(1). The jury found the defendant not guilty of all of the remaining charges, and the trial court rendered judgments in accordance with the verdict. The defendant then appealed,¹ claiming that the trial court improperly denied his motion to dismiss.² We conclude that, because the case is irreversibly tainted by the prosecutor's intrusion into the privileged communications, the only available appropriate remedy is dismissal of the charge of which he was convicted. Accordingly, we reverse the judgment of conviction.

The record reveals the following relevant facts and procedural history.³ The defendant was charged in two informations, each alleging two counts of risk of injury to a child and one count of sexual assault in the fourth degree, in connection with the defendant's alleged conduct toward two children at a karate school in the town of Granby, where the defendant was an instructor (respectively, Docket Nos. H12MCR–03–128673 and H12MCR–03–129740; collectively, Granby cases). Thereafter, the defendant was charged in a third information with two counts of risk of injury to a child and one count of sexual assault in the fourth degree in connection with an incident involving a child at the defendant's residence in Simsbury (Simsbury case). Ultimately, all three cases were consolidated for trial.

As part of its investigation into the incident that formed the basis for the charges in the Simsbury case, the Simsbury police department obtained a search warrant for the defendant's residence. During the search, which took place on November 17, 2004, the police seized a computer, which they sent to the Connecticut Forensic Science Laboratory (state laboratory) to be forensically searched. The next day, at the defendant's arraignment, defense counsel advised the trial court, Scheinblum, J., that certain materials in the computer were subject to the attorney-client privilege and asked the court to fashion orders to protect the defendant's rights. The court ordered that “any communications from [defense counsel] to [the defendant] or from [the defendant] to [defense counsel] remain unpublished [and] unread.” The court entered a similar order with respect to communications to and from the defendant's private investigator.

During its examination of the defendant's computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant's trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department. Defense counsel immediately requested a meeting with Judge Scheinblum in chambers, at which he advised the judge that the prosecutor had read materials that were subject to the attorney-client privilege. The trial court then ordered the police departments in Simsbury and Granby and the prosecutor to turn over any “questionable material” in their possession to the court and ordered that the material be placed under seal. Although it is unclear from the record how long the prosecutor had been in possession of the privileged communications before the September, 2005 meeting, defense counsel represented at a hearing on a motion to suppress the materials seized under the search warrant that the prosecutor had had the materials for six weeks, and the prosecutor did not dispute this claim.⁴

The defendant then filed a motion to dismiss the informations in the Granby cases ⁵ on the ground that the state had intentionally invaded the attorney-client privilege, thereby depriving the defendant of his right to counsel under the sixth amendment to the United States constitution.⁶ The defendant argued that the intrusion had resulted in substantial prejudice to him because the privileged communications contained detailed trial strategy. The state admitted that the prosecutor had read all of the materials and did not dispute that the documents contained trial strategy, but claimed that, because the prosecutor had not conducted any additional investigation and had not interviewed any additional witnesses as a result of reading the materials, the defendant had suffered no prejudice. In addition, the state claimed that the prosecutor had not wilfully violated the attorney-client privilege, but had obtained the privileged materials in good faith. Accordingly, the state argued that the appropriate remedy for its allegedly unintentional invasion of the attorney-client privilege was the suppression of the privileged communications.

The trial court, Olear, J., issued a memorandum of decision on the defendant's motion to dismiss in which it concluded that, because the privileged communications had not been in the form of letters or e-mails between the defendant and his attorney, the state laboratory and the prosecutor had not intentionally violated Judge Scheinblum's order prohibiting the state from publishing or reading any privileged communications. Nevertheless, because the defendant had testified at an ex parte hearing before the trial court that he had in fact delivered the materials to his attorney and had submitted an affidavit to that effect under seal, the trial court concluded that the materials were subject to the attorney-client privilege. Accordingly, the trial court ordered a hearing to determine whether the defendant had been prejudiced by the state's unintentional invasion of the attorney-client privilege and, if so, what was the appropriate remedy.

After an evidentiary hearing, the trial court denied the defendant's motion to dismiss. The court concluded that, because the Simsbury police department had not shared the privileged information with the Granby police department, the defendant had suffered no prejudice in the Granby cases. To ensure a fair trial, however, the trial court ordered that the Simsbury case be tried separately from the Granby cases. The defendant responded that he continued to believe that dismissal was the only appropriate remedy, and that, to avoid further delay in the proceedings, he wanted all of the cases to be tried together. The trial court granted the request to try the cases together.

After a trial, the jury returned a verdict of not guilty on all charges except risk of injury to a child in violation of § 53–21(a)(1) in Docket No. H12MCR–03–128673, and the trial court rendered judgments in accordance with the verdict. The defendant appealed to the Appellate Court from the judgment of conviction. He then filed a motion for articulation of the trial court's reasons for denying his motion to dismiss, which the trial court granted. In its articulation, the court reiterated that, because none of the privileged documents was “in the form of a ‘communication’ from the defendant to counsel, but rather [contained] the narrative thoughts, musings and opinions of a layman,” on their face, they did not appear to be privileged. Nevertheless, because the defendant had testified that he had communicated the documents to his attorney, the court concluded that the documents were covered by the attorney-client privilege. The court also reiterated that, because the privileged documents had not been given to the Granby police department, the defendant had not been prejudiced in the Granby cases and dismissal of the charges in those cases would have been inappropriate.

Thereafter, the trial court denied the defendant's motion for further articulation. The Appellate Court then granted the defendant's motion for review of the denial of his motion and ordered the trial court to render a further articulation on the following two questions: (1) “Whether, in denying the defendant's motion to dismiss, the court considered his argument that the [prosecutor] received and reviewed the documents covered by the attorney-client privilege”; and (2) “What prejudice, if any, it found that the defendant suffered as a result of the [prosecutor's] access to those documents.” In its further articulation, the trial court stated that “[t]he defendant failed to introduce sufficient credible evidence for the court to make factual findings as to the timing, nature and...