State v. Davaloo ( 2016 )

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STATE OF CONNECTICUT v. SHEILA DAVALLOO
(SC 19416)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 14, 2015—officially released January 12, 2016
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom were James M. Bernardi, supervisory assistant
state’s attorney, and, on the brief, David I. Cohen, for-
mer state’s attorney, and Maureen Ornousky, senior
assistant state’s attorney, for the appellee (state).
Opinion
ROGERS, C. J. This certified appeal addresses the
scope of the marital communications privilege codified
in General Statutes § 54-84b.1 The defendant, Sheila
Davalloo, was convicted, after a jury trial, of murder in
violation of General Statutes § 53a-54a. The defendant
appeals from the judgment of the Appellate Court
affirming that conviction after concluding that her state-
ments to her husband, Paul Christos, did not fall within
the protection of § 54-84b. State v. Davalloo, 153 Conn.
App. 419, 436, 449, 101 A.3d 355 (2014). Because we
conclude that the defendant’s statements were not
‘‘induced by the affection, confidence, loyalty and integ-
rity of the marital relationship,’’ as § 54-84b (a) requires,
we hold that the statements were not protected by the
marital communications privilege. Accordingly, we
affirm the judgment of the Appellate Court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
defendant’s claim.2 This case involves a love triangle
that took a deadly turn. The defendant became infatu-
ated with Nelson Sessler, her coworker at Purdue Pha-
rma, Inc., a pharmaceutical company in Stamford. State
v. Davalloo, supra, 153 Conn. App. 421. The victim, Anna
Lisa Raymundo, also was a fellow Purdue Pharma, Inc.,
employee and the third member of the love triangle.
Id. In late 2000, Sessler met Raymundo at an after work
happy hour and, in the summer of 2001, Sessler met
the defendant for the first time at another after work
happy hour. The defendant told Sessler that she was
divorced, although she was still married to Christos.
Sessler began separate sexual relationships with both
the defendant and Raymundo. Id.During their relationship, the defendant and Sessler
would rendezvous periodically at the defendant and
Christos’ condominium unit in Pleasantville, New York.
Before Sessler would visit, the defendant would tell
Christos that her mentally ill brother was coming over
and that Christos should leave and take his belongings
with him because her brother would react badly if he
found out that she was married. Id., 421–22. Christos
believed this because he had been told by the defen-
dant’s parents that the defendant, in fact, had a mentally
ill brother. Id., 422.
In the summer of 2002, Sessler focused his attentions
on Raymundo, and the two became a couple. Id. Even
though Sessler maintained his separate apartment in
Stamford, ‘‘he spent the majority of [his] time at Ray-
mundo’s apartment, located at 123 Harbor Drive, apart-
ment 105, in Stamford. . . . Sessler’s relationship with
Raymundo continued after Raymundo left Purdue Pha-
rma [Inc.] in 2002 and began a new job at another
pharmaceutical company, Pharmacia, in New Jersey.
Despite working in New Jersey, Raymundo continued
to live at her apartment in Stamford.’’ Id.Also in 2002, the defendant concocted a story about a
love triangle among three fictional coworkers at Purdue
Pharma, Inc.: ‘‘Melissa,’’ ‘‘Jack,’’ and ‘‘Anna Lisa.’’ Id.Nearly every day, she recounted the tale to Christos
from the perspective of her purported friend ‘‘Melissa.’’
Id. In actuality, ‘‘Melissa’’ was the defendant; ‘‘Jack’’
was Sessler; and ‘‘Anna Lisa’’ was Raymundo. Id. The
defendant told Christos intimate details about Melissa
and Jack including that Melissa was upset when Jack
rebuffed her sexual advances. Id., 422–23. Additionally,
‘‘[s]he once said that Melissa had discovered Jack’s
travel plans and had flown to Jack’s destination. She
then conveniently ran into him at the airport as he was
boarding a plane home and sat next to him on the return
flight.3 The defendant constantly asked Christos for
advice ‘on behalf’ of Melissa with questions such as
why Jack was in a relationship with two women and
why Jack was cheating on one woman with the other.
Christos listened to these stories to ‘humor’ the
defendant.
‘‘Eventually, the defendant told Christos that she
‘wanted to go on a stakeout’ with Melissa in order to
‘spy on Jack.’ Although Christos thought the proposed
surveillance was ‘a little odd,’ he did not believe it would
actually occur; he gave the defendant a pair of night
vision binoculars. The defendant told Christos that she
had purchased a lock pick set for Melissa because
Melissa wanted to break into Anna Lisa’s apartment to
look at photographs in order to ‘get a sense of the
relationship between Jack and Anna Lisa.’ The defen-
dant practiced with the lock pick set on the front door
of their Pleasantville condominium unit. The defendant
also asked Christos for an eavesdropping device that
she knew he owned in order to assist Melissa in planting
the device in Jack’s office so they could listen in on
his conversations. Early one morning, the defendant
telephoned Christos to inform him that she and Melissa
were outside Anna Lisa’s apartment and asked Christos
if Melissa should confront Anna Lisa. Christos told the
defendant that Anna Lisa had a ‘right to know her boy-
friend is cheating on her . . . .’ In time, Christos
became ‘sick’ of the stories of the love triangle and ‘. . .
got angry’ with the defendant.
‘‘The defendant also related the story of the love
triangle to Emilio Mei and Tammy Mei, friends of the
defendant and Christos, to Christos’ parents and to ‘one
or two other friends as well.’ The defendant told Tammy
Mei about Melissa ‘[a]lmost every time [they] spoke’
and would ask her questions such as whether she
thought Jack would break up with Anna Lisa and date
Melissa. The defendant told Tammy Mei that Melissa
had access to Jack’s voice mail and would listen to it
on a daily basis to see if he was still seeing Anna Lisa
or any other woman. She also told Tammy Mei that
Jack ‘tried to set Melissa up with one of his friends,’
but that it did not go well because ‘Melissa just wanted
to be with Jack.’4 The defendant ‘quite a few times’
asked Tammy Mei if Melissa should confront Anna Lisa
to ‘let her know that she [Melissa] was also seeing Jack.’
Tammy Mei advised against this confrontation, but
sensed that the defendant wanted her to say that Melissa
should confront Anna Lisa.
‘‘A few minutes after noon on November 8, 2002,
the Stamford Police Department received a 911 call in
which the caller reported that a man was assaulting
someone at 123 Harborview, apartment 105; the caller
claimed to be a neighbor [but was later identified at
trial as the defendant]. The dispatcher knew that Har-
borview was a commercial area without apartments
and knew the given address had to be incorrect. After
the caller ended the call, the dispatcher called back the
number and discovered that the call had come from a
pay phone at a Dutchess restaurant on Shippan Avenue
in Stamford. The dispatcher telephoned the Dutchess
restaurant and spoke to a manager, who had not noticed
anyone at the pay phone. The dispatcher sent officers
to 123 Harbor Drive, apartment 105, which she knew
was a residential facility near the Dutchess restaurant.
‘‘An officer knocked on the door of apartment 105
and received no answer. He pushed the door open and
saw the deceased victim, Raymundo, on the floor of
the front foyer. The officers saw no signs of forced
entry, burglary, or ransacking. [Raymundo] had died
from multiple stab wounds and her injuries indicated
a violent struggle.
‘‘In the course of [the] investigation, officers found
details whose relevance later became apparent. At 11:57
a.m. [on the day of the murder, Raymundo’s] home
telephone had been used to place a call to Sessler’s
office; Sessler had not answered the call and no voice
message had been left. Officers discovered a bloodstain
on the handle of a bathroom sink, which suggested that
the assailant had tried to clean up after the crime. The
bloodstain much later was determined to contain ‘all
of the different genetic elements that [were] present’
in the DNA profiles of both the defendant and [Ray-
mundo]. The state’s expert testified that due to the fact
that [Raymundo] cleaned her apartment regularly, as
testified to by Sessler and [Raymundo’s] parents, and
the fact that the sink handle was nonporous, it was
‘extremely, extraordinarily unlikely’ that any DNA left
by the defendant on the sink handle prior to November
8, 2002, would have lasted or remained ‘very long
. . . .’ ’’ (Footnotes altered.) Id., 423–25. Additionally,
Christos noticed one day in late November, 2002, that
the defendant came home from work with a ‘‘ ‘nasty
cut’ ’’ on her thumb. Id., 426. She explained to Christos
that she had cut her thumb opening a can of dog food
for their two dogs. Id.‘‘When Sessler returned after work to [Raymundo’s]
apartment, where he frequently stayed, police officers
questioned him. Sessler gave officers the names of two
other women he dated who suffered from mental ill-
nesses. He did not at that time tell police officers about
his overlapping sexual relationships with [Raymundo]
and the defendant. After several hours of questioning,
the police released Sessler. The police were unaware,
at this point, of any connection between the defendant
and the crime.
‘‘After [Raymundo’s] death, the defendant pursued
Sessler. She sent him a care package, consoled him,
and was one of the few people willing to talk to Sessler
about Raymundo at a time when most people ‘. . .
shunned him.’ In January, 2003, the defendant invited
Sessler to go on a group ski trip. The ‘group’ turned
out to be only Sessler and the defendant. Sessler again
entered into a sexual relationship with the defendant.
The defendant would invite Sessler to her residence,
but, again, only after having first told Christos that her
mentally ill brother was visiting.’’ Id., 425–26.
‘‘As part of his work, on November 13, 2002, Christos
had a meeting with representatives from Pharmacia,
where Anna Lisa had worked. The representatives men-
tioned that a colleague of theirs had been recently mur-
dered. Although a name was not mentioned, Christos
began to wonder if Melissa did something to Anna Lisa.
Christos mentioned to the defendant that an employee
at Pharmacia had been killed and asked whether
Melissa was involved and if Anna Lisa was ‘okay. . . .’
The defendant did not seem shocked or surprised and
responded, without elaboration, that Anna Lisa was
‘fine.’ Christos testified at trial that he believed that, at
that point, the defendant thought that he had made
that connection. In late 2002, the defendant reported
to Christos that Jack and Anna Lisa had ‘broken up’
and that Melissa and Jack were together exclusively.
But also in late 2002, the defendant asked Christos for
information about fingerprints and DNA.
‘‘On December 8, 2002, during dinner, the defendant
also asked Emilio Mei and Tammy Mei about DNA and
fingerprints, and questioned whether ‘they have every-
body’s DNA on file.’ In early 2003, Tammy Mei noticed
that, although the defendant continued to talk about
Jack and Melissa, she had not spoken about Anna Lisa
in a while. Tammy Mei asked the defendant about Anna
Lisa, and the defendant responded that Jack and Melissa
were a happy couple; Anna Lisa had moved to New
Jersey because she had obtained a job there.
‘‘In 2003, the frequency of trysts at the Pleasantville
condominium—under the guise, so far as the defendant
told Christos, of her mentally ill brother’s visiting—
increased. Christos was [frustrated with] . . . leaving
when the defendant’s ‘brother’ visited and told the
defendant that her brother ‘ha[d] to be told that [they
were] married.’
‘‘On March 22, 2003, the defendant described a guess-
ing game to Christos. The game involved one person’s
being handcuffed and blindfolded while the other
placed objects against the bound person’s skin; the
bound person was to guess the identity of the object.
The following day, the defendant asked Christos if he
wanted to play the guessing game. The defendant was
the first to be bound and blindfolded. She guessed vari-
ous household items.
‘‘Then it was Christos’ turn. He lay on the floor, blind-
folded and handcuffed to a chair. Christos guessed vari-
ous common household items. The defendant then went
to the kitchen to retrieve ‘one last item . . . to guess.’
She sat on Christos’ midsection and touched the item
to his face; Christos guessed the item was a candle.
The item was a knife. The defendant thrust the knife
into Christos’ chest, paused and then again thrust the
knife into Christos’ chest. The defendant said, ‘Oh, my
God, I think I hurt you. You’re bleeding.’ Still blindfolded
and handcuffed, Christos asked the defendant what had
happened. She explained that ‘something fell on you. I
think the candle hurt you.’ Christos asked the defendant
to remove the blindfold, and she did. But when he asked
her to remove the handcuffs, she stated that she could
not find the key. At Christos’ request, the defendant
helped him break the chair to which the handcuffs
were attached.
‘‘Christos asked the defendant to call 911. He heard
the defendant seem to make a 911 call, but, after a
significant amount of time had passed, no ambulance
arrived. Christos asked the defendant to call 911 again
and he asked to talk to the operator. The defendant
told Christos that the operator did not want to talk to
him, but rather wanted him to lie on the floor. The
defendant at this point instead telephoned Sessler and
invited him over to the condominium for dinner.
‘‘Eventually, Christos, still conscious, asked the
defendant to take him to a nearby hospital, and the
defendant obliged. She drove slowly, according to
Christos, and parked in the rear of the Behavioral Health
Center of Westchester Medical Center in Valhalla, New
York. The defendant got out of the car and opened the
rear driver’s side door. Christos thought the defendant
was going to help him out of the car until he saw an
angry expression on her face and saw her lunge at him
with the knife. Christos managed to get out of the car
and attempted to wrestle the knife out of the defen-
dant’s hands. The melee moved to a grassy spot in the
parking lot, while Christos visibly was bleeding through
his shirt. The defendant begged Christos to ‘stay with
me, talk to me . . . .’ Christos broke free, ran about
200 feet, and yelled to a medical resident and another
person, who were near the entrance to the Behavioral
Health Center. The resident called 911. The defendant
asked the resident to let her take Christos to the emer-
gency room. The resident refused. The defendant was
arrested, in New York, for attempted murder in connec-
tion with this incident.
‘‘When Sessler arrived at the defendant’s condomin-
ium for dinner, he found police officers searching the
residence. Police officers informed him that there had
been a domestic dispute and that Christos was in a
hospital. Later, after reading an article in a newspaper
about the stabbing, Sessler contacted the Stamford
police and informed them that they should consider the
defendant to be a suspect in the death of Raymundo.
Eventually, Sessler told officers about his concurrent
affairs with the defendant and Raymundo. Days after
Christos’ stabbing, the Stamford police contacted
Christos about the death of Raymundo. Christos gave
the officers several written statements and the defen-
dant’s phone records.’’ Id., 426–29.
Christos survived his injuries and testified in the Con-
necticut jury trial of the defendant for the murder of
Raymundo. Id., 429. Prior to trial, however, the defen-
dant filed a motion in limine seeking to prevent Christos’
testimony on the basis of the marital communications
privilege. Id. The state also filed a motion in limine,
requesting a determination that certain statements
between the former spouses were admissible. Id. The
testimony at issue dealt with the defendant’s statements
and actions during the course of the marriage pertaining
to the relevant events.5
On June 3, 2011, the court heard arguments relating
to the motions in limine and ruled that ‘‘ ‘these state-
ments . . . were not made in furtherance or induced
by affection, confidence, loyalty, and integrity of the
relationship; quite the contrary. It is just the opposite.
The statements made to the run-up of the murder of
[Raymundo], the description of a faux triangle, again,
for lack of a better word, it would be bizarre to classify
those as in furtherance of the sanctity of the marital
relationship. The plan here was to do in a potential
third party suitor of [Sessler] . . . and, ultimately,
[Christos], have him removed from the scene either by
way of divorce and/or physically remove him from the
scene. And, in fact, this defendant was convicted of the
attempted murder of her husband in those [New York]
proceedings. So, those statements leading up to the run-
up in this triangle and whatnot for various reasons don’t
fall within the purview of the marital privilege. To rule
that way would be . . . bizarre. Statements after the
death of Raymundo to accommodate the relationship
with Sessler fall in the same category, as well as the
statements leading up to and relative to the attack and
attempted murder of [Christos].’ ’’ Id., 430. The trial
court further stated that, ‘‘[t]o argue that these [state-
ments] were in furtherance of the marital relationship
defies common sense, are in fact bizarre, and could
only be applicable to some parallel universe . . . with
which I am not acquainted.’’ The court then granted
the state’s motion and denied the defendant’s motion.
After a jury trial, the defendant was convicted of
murder in violation of § 53a-54a. She was sentenced to
fifty years imprisonment to be served consecutively to
a sentence she received in New York for her conviction
based on the attempted murder of Christos.
On appeal to the Appellate Court, the defendant
argued that her statements to Christos were improperly
admitted by the trial court in violation of the marital
communications privilege6 because the trial court had
inquired into the quality of the marriage, contrary to
this court’s holding in State v. Christian, 267 Conn.
710, 841 A.2d 1158 (2004), and because the communica-
tions at issue, which pertained to personal matters, fell
within the statutory parameters of the privilege. State v.
Davalloo, supra, 153 Conn. App. 433–34. The Appellate
Court disagreed, concluding that the trial court properly
had focused on the nature of the communications, and
not the quality of the marriage. Id., 434. According to the
Appellate Court, ‘‘[t]he [defendant’s] statements quite
clearly were meant to deceive Christos, so that he would
leave the marital home and her affair with Sessler would
be enabled, would give advice and assistance to her so
that she could further her affair with Sessler, [and]
would assist in his own demise by submitting to being
restrained and by accepting the defendant’s false assur-
ances that she was trying to secure medical assistance.’’
Id., 435–36. Thus, the Appellate Court concluded that
the defendant’s statements were not ‘‘induced by the
affection’’ of the marital relationship. Id., 435. This
appeal followed.7
The defendant claims that the Appellate Court, in
holding that the marital communications privilege was
inapplicable, misconstrued § 54-84b to require that the
privileged statement must strengthen a marital relation-
ship, thereby necessitating an improper examination of
the state of that relationship. The defendant argues that
the language in § 54-84b (a), which requires that the
communication must be ‘‘induced by the affection, con-
fidence, loyalty and integrity of the marital relation-
ship,’’ simply reflects the common-law requirement that
the confidential statements must relate to the marital
relationship and not to everyday conversations inciden-
tal to marriage. According to the defendant, the state-
ments at issue were thinly veiled confessions of adultery
and, therefore, fell squarely within the privilege. The
state argues that the legislature, by including the lan-
guage at issue, plainly and unambiguously intended to
add an additional element, and thereby narrow, the
common-law privilege as articulated in Christian, and
that the Appellate Court, like the trial court, correctly
concluded that the defendant’s statements fell far short
of satisfying that element. We agree with the state that
the language does plainly and unambiguously add an
element to the marital privilege.8
As a preliminary matter, we address the proper stan-
dard of review. ‘‘The scope of an evidentiary privilege
is a question of law, which we review de novo. . . . The
application of the privilege presents a mixed question of
law and fact.’’ (Citation omitted.) State v. Mark R., 300
Conn. 590, 597, 17 A.3d 1 (2011). Thus, ‘‘[t]he scope of
our appellate review depends upon the proper charac-
terization of the rulings made by the trial court. To the
extent that the trial court has made findings of fact,
our review is limited to deciding whether such findings
were clearly erroneous. When, however, the trial court
draws conclusions of law, our review is plenary and
we must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) State v. Christian, supra, 267 Conn. 732–33.
‘‘[B]ecause testimonial privileges prevent full disclosure
of the truth, they are to be strictly construed.’’ State v.
Mark R., supra, 598.
To the extent that our review requires us to interpret
§ 54-84b, the statute codifying the marital communica-
tions privilege, our review is plenary. See State v.
Adams, 308 Conn. 263, 269–70, 63 A.3d 934 (2013).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Internal
quotation marks omitted.) State v. Fernando A., 294
Conn. 1, 13–14, 981 A.2d 427 (2009).
On appeal, the parties do not dispute the underlying
facts regarding what the defendant told Christos, but
only the question of whether, given those facts, the
marital communications privilege should have applied.
Because our review concerns the scope of the privilege
based on an interpretation of § 54-84b and its applica-
tion to undisputed facts, our review is plenary.
We begin our analysis with a review of the develop-
ment of the marital communications privilege under
Connecticut law. In State v. Christian, supra, 267 Conn.
730, this court recognized, for the first time, the exis-
tence of the marital communications privilege as part of
Connecticut’s common law.9 In that case, the defendant
was involved in a fatal automobile accident that killed
an occupant of a car in which the defendant was riding.
Thereafter, while in the hospital, the defendant quietly
confided in his wife, when no others were present, that
he, rather than the deceased individual, had been the
driver of the car. Id., 722. At trial, the defendant sought
to prevent his wife from testifying about this communi-
cation. During voir dire, the defendant’s wife conveyed
that she and the defendant were separated and in the
process of divorcing, that the marriage ‘‘ ‘was very
rocky’ ’’ at the time of the accident, and that, because
the marriage was ‘‘over,’’ preserving the confidentiality
of the defendant’s statement would not repair it. Id.
Relying on this testimony, the trial court ruled that the
privilege, to the extent it existed, did not apply, even
though the communications were private and occurred
during a valid marriage, because that ‘‘marriage irre-
trievably had broken down.’’ Id., 723.
On appeal, this court confirmed that the marital com-
munications privilege, which we previously had alluded
to, was in fact ‘‘a fixture of our common law.’’ Id.,
730. We determined that a marital communication is
privileged if (1) the communication was made to a
spouse during a valid marriage and (2) the communica-
tion was confidential. Id., 731–32. We ultimately con-
cluded that the trial court improperly had refused
application of the privilege on the basis of the acrimoni-
ous state of the parties’ marriage because that marriage,
at the time of the communications, nevertheless was
intact. Id., 735. Accordingly the first requirement was
satisfied.
In formally adopting the privilege, we explained the
well recognized principles underlying it: ‘‘The basis of
the immunity given to communications between
[spouses] is the protection of marital confidences,
regarded as so essential to the preservation of the mar-
riage relationship as to outweigh the disadvantages to
the administration of justice which the privilege
entails.’’ (Internal quotation marks omitted.) Id., 728.
‘‘The marital communications privilege protects infor-
mation privately disclosed between [spouses] in the
confidence of the marital relationship—once described
. . . as the best solace of human existence. . . . [T]he
primary purpose of the confidential marital communica-
tion privilege is to foster marital relationships by
encouraging confidential communication between
spouses . . . . The privilege permit[s] [spouses] to
communicate freely with one another without fear that
their communications will be used against them at some
future date. . . . We encourage married people to con-
fide in each other by protecting their statements from
later scrutiny in court.’’ (Citations omitted; internal quo-
tation marks omitted.) Id., 728–29. The marital commu-
nications privilege ‘‘exists to [e]nsure that spouses . . .
feel free to communicate their deepest feelings to each
other without fear of eventual exposure in a court of
law.’’ (Internal quotation marks omitted.) Id., 729.
After Christian was decided, the legislature codified
the privilege by enacting § 54-84b. That provision
defines ‘‘confidential communications’’ as ‘‘any oral or
written communication made between spouses during
a marriage that is intended to be confidential and is
induced by the affection, confidence, loyalty and integ-
rity of the marital relationship.’’ General Statutes § 54-
84b (a). Accordingly, we agree with the state that the
legislature adopted the elements stated in Christian,
but also added a third element, effectively narrowing
the scope of the privilege.
‘‘We ordinarily do not read statutes so as to render
parts of them superfluous or meaningless.’’ (Internal
quotation marks omitted.) Lostritto v. Community
Action Agency of New Haven, Inc., 269 Conn. 10, 37,
848 A.2d 418 (2004); see State v. Drupals, 306 Conn. 149,
159, 49 A.3d 962 (2012) (‘‘[s]tatutes must be construed, if
possible, such that no clause, sentence or word shall be
superfluous, void or insignificant’’ [internal quotation
marks omitted]). Section 54-84b (a) provides the com-
mon-law elements that the communication must be
made between spouses during a marriage and be
intended to be confidential;10 see State v. Christian,
supra, 267 Conn. 710; but then adds the ‘‘induced by
the affection’’ language, which is not found in the Con-
necticut common law, in the conjunctive. See State v.
Davalloo, supra, 153 Conn. App. 433. Thus, the plain
language of the statute compels us to view the ‘‘induced
by the affection’’ requirement as a separate element
that limits the privilege to those confidential communi-
cations made between spouses in a valid marriage that
are ‘‘induced by the affection, confidence, loyalty and
integrity of the marital relationship.’’11 General Statutes
§ 54-84b (a). Consequently, in order for a communica-
tion to be privileged under § 54-84b, the communication
must be: (1) made to a spouse during a marriage; (2)
confidential; and (3) induced by the affection, confi-
dence, loyalty and integrity of the marital relationship.
To aid in our analysis we look to the language of the
statute. The word ‘‘induce’’ means ‘‘to bring on or bring
about’’ or, alternatively, to ‘‘cause . . . .’’ Webster’s
Third New International Dictionary (2002). Accord-
ingly, the statements must be ‘‘brought about’’ or
‘‘caused’’ by the affection, confidence, loyalty and integ-
rity of the marital relationship. It therefore follows that
if the statements are instead influenced by precisely
the opposite, they would not qualify. The language of
the statute, read as a whole, clearly contemplates one
spouse confiding personal information truthfully in the
other due to the special trust existing between the two,
and not to the active concealment of a secret, nefarious
undertaking designed to destroy the marriage.
In the present case, there are three categories of
statements the trial court identified: (1) ‘‘ ‘statements
made to the run-up of the murder of [Raymundo],’ ’’
including the ‘‘ ‘description of a faux triangle’ ’’; (2)
‘‘ ‘[s]tatements after the death of Raymundo to accom-
modate the relationship with Sessler’ ’’; and (3) ‘‘ ‘state-
ments leading up to and relative to the attack and
attempted murder of [Christos].’ ’’12 State v. Davalloo,
supra, 153 Conn. App. 430. As for the statements made
during the period immediately preceding the murder
of Raymundo, all of them were meant to deceive the
defendant’s spouse by being dishonest about her ‘‘broth-
er’s visits,’’ the real actors in the faux love triangle, and
the reasons she requested items from Christos. The
statements after the death of Raymundo were meant
not only to deceive and further her obsessive relation-
ship with Sessler, but also to conceal her involvement
in Raymundo’s death. Finally, with regard to the state-
ments leading up to the defendant’s attempted murder
of Christos, it is self-evident that her violence against
her spouse vitiates any reasonable argument that these
statements were ‘‘induced by . . . affection’’13 as
required by § 54-84b (a).
Because the defendant’s purpose in making the state-
ments at issue was to further her extramarital affair
with Sessler and to ultimately eliminate, by murdering,
both Raymundo and Christos, whom she perceived as
obstacles to that affair,14 we agree with the determina-
tion by the trial court and the Appellate Court that the
statements at issue here do not fall within the language
of § 54-84b (a) because we simply cannot conceive of
any scenario whereby the statements could have been
‘‘induced by the affection, confidence, loyalty and integ-
rity’’ of the defendant’s marital relationship as required
under that statute.15 In short, the defendant made state-
ments to Christos that were indisputably not induced
by affection or loyalty and, in the end, engaged in the
ultimate betrayal of the spousal relationship, attempting
to murder her husband. We, therefore, agree with the
trial court that application of the marital communica-
tions privilege, in the particular facts and circumstances
of this case, would be nothing short of bizarre.
The defendant argues that the trial court and the
Appellate Court wrongfully looked at the state of the
defendant’s marriage, contrary to our holding in Chris-
tian.16 We make short work of this argument because
the Appellate Court explicitly stated that the nature of
the marriage was not the focus of its analysis. State v.
Davalloo, supra, 153 Conn. App. 434. Consistent with
Christian, the Appellate Court agreed with the defen-
dant that the nature of the marriage, whether acrimoni-
ous or harmonious, is not a factor in determining
whether the privilege applies.17 Id. Similarly, the trial
court did not attempt to evaluate the quality of the
defendant’s marriage at the time she made the state-
ments at issue, but rather, focused on the characteris-
tics of the statements themselves. Indeed, the only fair
reading of the trial court’s and the Appellate Court’s
decisions is that they focused on the nature of the
communication. Id. On the basis of the undisputed facts
presented in this case, we conclude that the defendant’s
communications fall well outside the marital communi-
cations privilege.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 54-84b provides: ‘‘(a) For the purposes of this section,
‘confidential communication’ means any oral or written communication
made between spouses during a marriage that is intended to be confidential
and is induced by the affection, confidence, loyalty and integrity of the
marital relationship.
‘‘(b) Except as provided in subsection (c) of this section, in any criminal
proceeding, a spouse shall not be (1) required to testify to a confidential
communication made by one spouse to the other during the marriage, or
(2) allowed to testify to a confidential communication made by one spouse
to the other during the marriage, over the objection of the other spouse.
‘‘(c) The testimony of a spouse regarding a confidential communication
may be compelled, in the same manner as for any other witness, in a criminal
proceeding against the other spouse for (1) joint participation with the
spouse in what was, at the time the communication was made, criminal
conduct or conspiracy to commit a crime, (2) bodily injury, sexual assault
or other violence attempted, committed or threatened upon the spouse, or
(3) bodily injury, sexual assault, risk of injury pursuant to section 53-21, or
other violence attempted, committed or threatened upon the minor child
of either spouse, or any minor child in the care or custody of either spouse.’’
(Emphasis added.)
2
The facts, while undisputed, have a direct bearing on the analysis of the
privilege, which necessitates a longer discussion.
3
Sessler’s testimony confirmed that this interaction had occurred, in real-
ity, with the defendant on his return flight from a bachelor party in Las
Vegas. See State v. Davalloo, supra, 153 Conn. App. 423 n.2.
4
In reality, Sessler did attempt to set up a date between a friend and the
defendant. See State v. Davalloo, supra, 153 Conn. App. 424 n.3.
5
The defendant and Christos were divorced in 2004. State v. Davalloo,
supra, 153 Conn. App. 421 n.1.
6
Specifically, the defendant argued that admission of testimony regarding
the following topics was improper: ‘‘(1) stories about Melissa, Jack and Anna
Lisa, (2) fictional visits from the defendant’s brother, (3) the defendant’s
informing Christos that she bought a lock pick set to get into [Raymundo’s]
house to look for photographs, and her attempts to use the lock pick set
on the front doors of their [own] condominium, (4) conversations about an
eavesdropping device that the defendant wanted to place in Jack’s office
to listen to his conversations, (5) the defendant’s questioning of Christos
in late 2002 about DNA and fingerprints, (6) stories about Melissa’s becoming
upset when Jack rebuffed her sexual advances and Melissa’s arranging to
run into Jack at an airport and fly back home in the seat next to him, (7)
in November, 2002, Christos’ asking the defendant about Anna Lisa, and the
defendant’s reporting that Jack had ended his relationship with Anna Lisa
and was dating Melissa exclusively, (8) in late November, 2002, the defen-
dant’s explaining that she had cut her thumb on a can of dog food, and (9)
the events of the stabbing on March 23, 2003.’’ State v. Davalloo, supra, 153
Conn. App. 430–31.
7
This court granted the petition for certification to appeal, limited to the
following issue: ‘‘Did the Appellate Court properly construe . . . § 54-84b
in concluding that the statements made by the defendant were not subject
to the marital communication privilege?’’ State v. Davalloo, 314 Conn. 949,
103 A.3d 977 (2014).
8
Because we decide the issue on the basis of our interpretation of the
marital communication privilege, we need not address the state’s arguments
regarding disclosure and waiver, which it has presented as alternative
grounds for affirming the Appellate Court’s judgment.
9
The other related testimonial privilege, the adverse spousal testimony
privilege, had already been previously codified in General Statutes § 54-84a.
State v. Christian, supra, 267 Conn. 725. ‘‘Under that privilege, the husband
or wife of a criminal defendant has a privilege not to testify against his or
her spouse in a criminal proceeding, provided that the couple is married at
the time of trial.’’ Id. In contrast, the marital communications privilege
survives divorce. Id., 733.
10
As the Appellate Court stated, the codified marital communications
privilege does not entirely displace the common-law privilege. See State v.
Davalloo, supra, 153 Conn. App. 433 n.5; Conn. Code Evid. § 5-1 (‘‘[e]xcept
as otherwise required by the constitution of the United States, the constitu-
tion of this state, the General Statutes or the Practice Book, privileges shall
be governed by the principles of the common law’’).
11
Although the ‘‘induced by’’ language does not appear in any other state’s
codification of the marital communications privilege, some courts have
invoked it in determining whether particular statements constitute a ‘‘confi-
dential communication,’’ subject to that privilege. See, e.g., People v. Fediuk,
66 N.Y.2d 881, 883, 489 N.E.2d 732, 498 N.Y.S.2d 763 (1985) (‘‘[n]ot protective
of all communications, the privilege attaches only to those statements made
in confidence and that are induced by the marital relation and prompted
by the affection, confidence and loyalty engendered by such relationship’’
[internal quotation marks omitted]). Frequently, the ‘‘induced by’’ language
is used to refine what kind of communications between married spouses
are confidential. See, e.g., People v. Melski, 10 N.Y.2d 78, 80, 176 N.E.2d
81, 217 N.Y.S.2d 65 (1961) (finding that New York’s marital privilege was
‘‘designed to protect not all the daily and ordinary exchanges between the
spouses, but merely those which would not have been made but for the
absolute confidence in, and induced by, the marital relationship’’); State
v. Freeman, 302 N.C. 591, 597–98, 276 S.E.2d 450 (1981) (in determining
‘‘[w]hether a particular segment of testimony includes a ‘confidential com-
munication’ . . . the question is whether the communication, whatever it
contains, was induced by the marital relationship and prompted by the
affection, confidence, and loyalty engendered by such relationship’’); State
v. Richards, 182 W. Va. 664, 668, 391 S.E.2d 354 (1990) (‘‘[t]he test of whether
the acts of the spouse come within the privilege against disclosure of confi-
dential marital communications is whether the act or conduct was induced
by or done in reliance on the confidence of the marital relation, i.e., whether
there was an expectation of confidentiality’’ [internal quotation marks omit-
ted]). Nevertheless, our legislature chose to add the language as a distinct
element and thus, while related, the language must mean something more
than communications made during a marriage that are confidential. See
State v. Davalloo, supra, 153 Conn. App. 434 (‘‘[i]f, as the defendant contends,
the ‘induced by affection’ language merely describes the nature of marital
relationships in general and is intended to protect ‘personal feelings,’ the
language adds nothing to the ‘during marriage’ and confidentiality
requirements’’).
12
See also footnote 6 of this opinion.
13
The legislature has indicated its disapproval of spousal violence. It
expressly excluded from the privilege’s protection the testimony of a spouse
regarding a confidential communication in a criminal proceeding against the
other spouse for ‘‘bodily injury, sexual assault or other violence attempted,
committed or threatened upon the spouse . . . .’’ General Statutes § 54-84b
(c) (2); see also People v. Trzeciak, 2013 IL 114491, paras. 50–52, 5 N.E.3d
141, 152–53 (Ill. 2013) (holding that defendant’s spousal abuse and state-
ments made during that abuse could not have been ‘‘made in reliance on
the confidences of his marriage’’ and citing cases in accord from multiple
jurisdictions).
14
We reject the defendant’s characterization of her statements, on appeal,
as thinly veiled confessions of adultery. The trial court did not so find, and
nothing about their content or the overall circumstances remotely suggests
that they were confessional in nature.
15
Because the applicability of the marital communications privilege neces-
sarily depends on the facts and circumstances of a particular matter, we
do not endeavor to articulate an all-encompassing explanation of what types
of statements are ‘‘induced by the affection, confidence, loyalty and integrity
of the marital relationship.’’ General Statutes § 54-84b (a); see People v.
Fediuk, 66 N.Y.2d 881, 883, 489 N.E.2d 732, 498 N.Y.S.2d 763 (1985) (under
particular circumstances of case, presumption that communication between
spouses was made under ‘‘mantle of confidentiality’’ not rebutted by fact
that parties were not living together at time of communication or that
marriage had deteriorated); People v. Melski, 10 N.Y.2d 78, 80, 176 N.E.2d
81, 217 N.Y.S.2d 65 (1961) (‘‘since each case contains peculiar circumstances
it is, as a practical matter, impossible to formulate an all-embracing definition
or an infallible guide’’ [internal quotation marks omitted]).
16
Additionally, the defendant seems to argue that the Appellate Court’s
interpretation only protects statements that further a harmonious marital
relationship. The defendant mischaracterizes the Appellate Court’s interpre-
tation. The Appellate Court found, as do we, that the statements made
simply cannot be said to be ‘‘induced by . . . affection,’’ not that, in order for
any statement to be protected by the privilege, it must further a harmonious
marriage. The state concedes that it is not necessary that the information
communicated has to be positive vis-a-vis the likely effect on the marriage
for the communication to be protected. For example, in State v. Christian,
supra, 267 Conn. 722, the admission of drunk driving may not have been
positive for the marriage but could have been induced by the perceived
loyalty in the marriage.
17
As we explained in State v. Christian, supra, 267 Conn. 734–35, ‘‘the
reasons justifying the marital communications privilege . . . apply with
equal force to married couples who, despite the appearance to outsiders of
an irretrievably broken marriage, may still share hopes of reconciliation.
. . . Although the defendant’s marriage may have been acrimonious at the
time that he had made the communications to his wife, the marital communi-
cations privilege nonetheless was valid.’’ (Citation omitted; internal quota-
tion marks omitted.) Despite the statutory addition of the ‘‘induced by’’
element in § 54-84b (a), we reaffirm this principle today. See, e.g., People
v. Fediuk, 66 N.Y.2d 881, 883, 489 N.E.2d 732, 498 N.Y.S.2d 763 (1985)
(‘‘Communication between spouses is presumed to have been conducted
under the mantle of confidentiality . . . . This presumption is not rebutted
by the fact . . . that [the parties’] marriage has deteriorated, for even in a
stormy separation disclosures to a spouse may be induced by absolute
confidence in the marital relationship . . . .’’ [Citations omitted; emphasis
added; internal quotation marks omitted.]).