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defendantattorneyappealtrialtestimonyattorney-client privilegepiracy
defendantattorneyappealtrialattorney-client privilege

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State v. Cascone, 195 Conn. 183, 487 A.2d 186

Facts

The defendant, Thomas Cascone, was convicted of first-degree robbery and conspiracy to commit robbery after his accomplice, Peter Fuller, testified against him. Fuller had robbed a Kentucky Fried Chicken store at Cascone's direction and was promised a reduced charge in exchange for his testimony. During the trial, the defendant sought to introduce statements made by Fuller to their shared attorney, Peter Zaccagnino, which allegedly indicated that Cascone was not involved in the robbery. The trial court excluded these statements based on attorney-client privilege, leading to the appeal.

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 dollars and a trip to Florida.

Issue

The main legal issue was whether the attorney-client privilege protected statements made by an accomplice to their shared attorney, particularly when the accomplice was testifying against the defendant.

The narrow issue presented by this appeal is the scope of the attorney-client privilege of an accomplice who testifies at a criminal trial.

Rule

Communications between a client and attorney are privileged when made in confidence for legal advice, but statements made in the presence of third parties are generally not privileged. The privilege may not apply if the communication is relevant to a later controversy between the clients.

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.

Analysis

The court applied a fact-specific balancing test to determine whether the attorney-client privilege should protect Fuller's statements. It concluded that the privilege did not apply to the statement made in Zaccagnino's office because Fuller was no longer represented by Zaccagnino at the time of the trial, and the disclosure of the statement would not significantly harm the attorney-client relationship. Furthermore, Fuller's prior admissions of guilt and cooperation with the state diminished any claim of confidentiality.

Applying this test to the instant appeal, we conclude that the attorney-client privilege should not have protected the statement allegedly made by Fuller in Zaccagnino's office. Disclosure of the statement would not have greatly harmed Fuller's attorney-client relationship with Zaccagnino. Since Zaccagnino was no longer Fuller's attorney at the time of the defendant's trial there was no possibility of impairing an ongoing relationship.

Conclusion

The court found that the trial court's exclusion of the evidence was an error that was not harmless, necessitating a new trial.

The trial court erred in excluding this evidence and its error was not harmless.

Who won?

The defendant, Thomas Cascone, prevailed in the appeal as the court ordered a new trial due to the improper exclusion of evidence that could have affected the outcome of the trial.

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.

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