OF THE ESTATE OF LOUIS R. LAFONTAINE vs. MARY ANN YALANIS
CV 00 0500379 S
SUPERIOR COURT OF CONNECTICUT
JUDICIAL DISTRICT OF NEW BRITAIN AT NEW BRITAIN
2003 Conn. Super. LEXIS 3636
December 12, 2003, Decided
December 12, 2003, Filed
OPINION: MEMORANDUM OF DECISION AND ORDER
RE: MOTION TO QUASH AND FOR PROTECTIVE ORDER
By way of an amended complaint dated July 17, 2000, the plaintiff alleges in pertinent part as follows:
Louis R. LaFontaine died on February 10, 1998. On February 1, 2000, a Probate Court Within the State of Connecticut appointed plaintiff as Administrator c.t.a., d.b.n. and that he is acting in this matter in said capacity.
On February 10, 1998, at approximately 6:30 a.m. the defendant entered into a premises known as 187 Stafford Avenue, Bristol Connecticut and found the plaintiff’s decedent dead, by virtue of multiple gunshot wounds to the head. The plaintiff further alleges that said gunshot wounds were not self inflicted by the plaintiff’s decedent.
At the time of the plaintiff’s decedent’s death, the decedent and the defendant who had previously lived together at the aforementioned premises, had separated. For in excess often years the defendant and the plaintiffs decedent had worked together on a daily basis at a business that was originally owned by the decedent.
In late 1980 the defendant invested money in the decedent’s business and said investment resulted in numerous arguments, physical violence and death threats.
Prior to the decedent’s death, the relationship between the decedent and the defendant worsened and degenerated to the extent that there were three to five episodes of physical violence and mutual threats at the aforementioned place of business.
The defendant was named as the primary beneficiary under the decedent’s last will and testament dated October 30, 1988. The defendant was also named as primary beneficiary on an insurance policy on the life of the decedent taken out on December 31, 1986 with a face value of one hundred twenty eight thousand dollars ($128,000.00).
In the summer of 1997 the parties separated. Subsequent to the separation the decedent demanded that the defendant convey her interest in 187 Stafford Avenue back to him.
In addition to arguing over the property at 187 Stafford Avenue, the defendant and the decedent argued repeatedly over the ownership of the business with the decedent demanding that the defendant convey her interest back to the decedent.
Following the homicide of the decedent, the Bristol Police Department commenced an investigation and determined that the defendant was a suspect in the decedent’s death.
Although there is no direct evidence that the defendant actually fired the weapon that claimed the life of the decedent, the plaintiff believes that based on the totality of the circumstances the defendant intentionally, willfully, wantonly, maliciously and unlawfully caused the injuries, losses and wrongful death of his decedent.
On October 12, 2003, two detectives of the Bristol Police Department filed the instant Motion to Quash and for Protective Order. The movants allege that they have received subpoenas in connection with the instant action seeking their appearance at a deposition to be taken by the plaintiff. The subpoenas further required the detectives to bring:
A. Copies of all written statements taken from witness.
B. All photos taken as a result of your investigation.
C. Reports made by all Detectives.
D. Individual notes.
Sec. 13-2 of the Practice Book concerns the scope of discovery. This section provides that:
In any civil action, in any probate appeal, or in any administrative appeal where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged…
The movants assert that the information sought by the plaintiff is covered by the qualified law enforcement privilege.
The information requested by the plaintiffs is protected by a qualified law enforcement privilege that the Supreme Court has long recognized.
“Information disclosed to a State’s Attorney for the purpose of enabling him to perform the duties of the office is privileged upon grounds of public policy, and an adverse party has no right to demand its production.” Seebeck v. State, 246 Conn. 514, 546, 717 A.2d 1161 (1998). “The reason for this privilege is to aid the State’s Attorney and the police in conducting investigations by encouraging people to disclose information without fear or embarrassment.” Id., 546, quoting State v. Zimnaruk, 128 Conn. 124, 127, 20 A.2d 613 (1941)…
Shuckra v. Sencio, No. 02-0816539 (Oct. 23, 2002, Hennessey, J.) 2002 Ct. Sup. 13997, 33 CLR 390.
In addition to our own courts, courts throughout this nation have recognized that certain records within the possession of law enforcement officials are subject to a qualified privilege against discovery in civil litigation both during and after criminal investigations. For example In re Marriage of Daniels, 240 Ill. App. 3d 314, 607 N.E.2d 1255, 1264, 180 Ill. Dec. 742 (Ill. App. Ct. 1992) (Considering, but not extending privilege in civil discovery when ongoing police investigation); State of Iowa, ex rel. Shanahan v. Iowa Dist. CT for Iowa County, 356 N.W.2d 523 (Iowa 1984) (applying in civil discovery when ongoing police investigation); City of Tampa v. Harold, 352 So. 2d 944, 946 (Fla. Dist. Ct. App. 1977).
Courts have expressed a rather uniform purpose in motivating the adoption of the privilege, which is in essence:
To prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation. ..
In re Marriage of Daniels, 607 N.E.2d at 1264.
The plaintiff asserts that any law enforcement privilege that was available in the instant action has been waived:
…Although the Office of the State’s Attorney in New Britain originally asserted the qualified law enforcement privilege, the State’s Attorney recently consented to the resumption of depositions in the case at bar, thereby, effectively waiving the privilege. The State’s Attorney waived the privilege with full knowledge of the present nature and status of the allegedly ongoing criminal investigation and the possible risks involved.
See Plaintiff’s Brief in Opposition to Defendant’s Motion to Quash and for a Protective Order, dated October 22, 2003, at page 3.
The court notes that the movants have not disputed the plaintiff’s allegation that the State’s Attorney has “consented to the resumption of depositions in the case at bar.”
The plaintiff goes on to argue that the movants are agents of the State and therefore the State’s Attorney’s waiver of the privilege is binding upon the movants. This court agrees with the plaintiff that for the purpose of a criminal prosecution a police officer or police department may be the agent of the State’s Attorney. However the plaintiff has not cited any case law or other binding authority that shows that the State’s Attorney is the agent of the police for the purpose of waiving the privilege for police investigations so that a waiver by his/her office is binding on police department investigating a homicide.
In the current situation, the movants allege that the public interest would be harmed because there is a continuing investigation into the homicide of the plaintiffs decedent. Although there is a continuing homicide investigation, there are no criminal prosecutions pending concerning the homicide of the plaintiffs decedent. Furthermore no evidence was submitted to this court that a prosecution related to this matter might commence in the near future.
The plaintiff’s decedent’s cause of death was multiple gunshot wounds to the head. In light of the nature of the homicide one of the possible charges that may arise out of a police investigation is murder.
In balancing the interest of the public of nondisclosure of the subject material against the plaintiffs interest of having access in order to prosecute his action, the court notes that murder is a very serious crime.
Section 53a-45 of the Connecticut General Statutes concerns the crime of murder. Subsection 53a-45(a) provides that murder is punishable as a class A felony.
Section 54-193 of the Connecticut General Statutes concerns the limitation of prosecution for certain offenses. Subsection 54-193(a) provides that:
(a) There shall be no limitation of time within which a person may be prosecuted for a capital felony, a class A felony or a violation of section 53a-54d or 53a-169.
While the court takes into account the serious nature of the criminal investigation in this matter, it also takes into account that there is no limitation of time within to prosecute an individual for the crime of murder, therefore an investigation of a murder case can theoretically continue without ever coming to a conclusion. Under such a scenario, the plaintiff in this matter would never be permitted to obtain access to the information.
Although the movants are claiming the information requested by the plaintiff is protected by a qualified law enforcement privilege, other then the conclusory statement that there is a continuing homicide investigation, the movants do not provide any substantive evidence as to why the privilege should attach to particular documents or testimony under the current circumstances. The subject homicide occurred almost six years ago. There is no prosecution pending or expected to commence in the near future.
Although the law enforcement privilege has been recognized in this jurisdiction, it is not an absolute privilege, but a “qualified” privilege. As such it is limited to instances where the public interest would be harmed by the disclosure because of the adverse effect on the ability of law enforcement to carry out its investigative functions.
The movants and the respondent appear to be relying more on principles of law in the subject area and less on substantive facts presented by the current situation. The movants assert that they are entitled to the privilege merely because there is a pending homicide investigation. On the other hand the plaintiff has failed to make any substantive showing that his private interest in obtaining the subject material outweighs the aforementioned public interests.
Although a balancing test is required to balance the competing public interest of confidentiality of the investigation with the need of civil litigants to receive relevant information for the prosecution or defense of their civil actions, this court concludes that neither party has provided it with sufficient information to strike such a balance.
In order to make a proper decision concerning the determination of the balance that must be struck in the instant action, this court orders the following:
1) Before any deposition related to the movants or the may take place, or a related subpoena is honored by the movants or the police department to which they are assigned, the movants shall turn over all of the requested discovery of which the movants do not have any objections; and
2) Counsel for the movants shall create and submit to this court a privilege log of all discovery to which the movants have any objections to releasing. Counsel shall further enter into said log any objections to questions posed at any related deposition of the movants. The privilege log shall identify each document claimed to be privileged by a general description, date, author, recipient(s); the privileged claimed and a succinct explanation of the legal and factual basis as to why the particular document comes within said privilege. The privilege log shall further identify each question to which the movants do not wish to answer at a deposition taken of them and shall state a succinct explanation of the legal and factual basis as to why the response to said question comes within the privilege; and
3) Upon receipt of the discovery material and or notice of the filing of the privilege log, the plaintiff shall have the right to file a motion to compel seeking an in camera review of anything that has been objected to; and
4) Due to the nature of the material sought to be discovered, any material that the parties wish to submit to this court for an in camera review shall be filed in according with the Superior Court’s rules concerning sealing. n1
n1 In the event that the movants deem it to be necessary the privilege log may also be filed in accordance with the sealing rules.
Richard A. Robinson, J.
December 12, 2003