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State v. Christian3/9/2004
e of her motive, bias or interest, in that, had it been heard and credited by the jury, the jury could have inferred that Joan Christian would benefit from the defendant's conviction by virtue of its effect on her civil proceedings against him for divorce and custody of their child. Therefore, the testimony improperly was excluded as collateral.
Furthermore, the trial court improperly determined that admission of Bobryk's testimony would have violated the attorney-client privilege held by Joan Christian. We previously have stated that, " ommunications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice." (Internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., supra, 265 Conn. 10. "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. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985). The only recognized exceptions to this rule are when the third party was an interpreter, clerk or agent of the client's attorney; see Olson v. Accessory Controls & Equipment Corp., supra, 254 Conn. 158; which Bobryk clearly was not. At oral argument before this court, the state conceded that, because the communication had been made in the presence of a third party, it was not protected by the attorney-client privilege. Therefore, because the communication at issue was made in her presence, Bobryk should have been allowed to testify.
In light of our conclusion that Bobryk's testimony improperly was excluded, we next must consider whether that impropriety violated the defendant's constitutional rights, or whether the error was merely evidentiary in nature.
We already have concluded that Bobyrk's testimony was relevant impeachment evidence and that the trial court's exclusion of that testimony improperly denied the defendant meaningful access into a legitimate area of inquiry. Whether that impropriety violated the constitutional protection of the confrontation clause depends, however, upon a variety of factors. " e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the crossexamination viewed in relation to the issues actually litigated at trial." (Internal quotation marks omitted.) State v. Clark, 260 Conn. 813, 828, 801 A.2d 718 (2002).
We begin by noting that the defendant effectively cross-examined Joan Christian, during which time he was able to extract several admissions concerning her interest in the outcome of the litigation in the present case. For example, the defendant questioned her regarding the pending divorce and child custody proceedings. Joan Christian acknowledged that those proceedings were "hotly contested . . . ." She admitted that, in a discussion with the defendant concerning those proceedings, she had told him that she had been "keeping up" with the status of the present case. She also admitted that she had contacted the state's attorney and had given a statement to the Suffield police department concerning the present case. In addition, the defendant cross-examined Joan Christian regarding her bias against him. Specifically, she testified that the defendant had abandoned her and their young son, and admitted that she was not "too happy" with the fact that he had left her without paying their bills. Finally, she acknowledged that her conflicts with the defendant had "escalated over time." Accordingly, the defendant exposed numerous facts from which the jury could have concluded that Joan Christian's testimony was tainted by motive, bias or interest, and, therefore, was not credible.
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