STATE v. MARK R., SC 18593

Judicial District of New Britain at G.A. 15


      Criminal; Confidentiality; Whether Defendant's Communications to Pastor were Subject to General Statutes § 52-146b Clergyman's Privilege; Whether Communications to Professional Counselor were Privileged under General Statutes § 52-146s; Whether Cross-Examination was Unduly Restricted.  The defendant was convicted of risk of injury and sexual assault in connection with allegations that he sexually abused his stepdaughter.  After the child reported the abuse to her mother, the mother arranged a meeting with the associate pastor of the family's church in order to confront the defendant with the child's allegations.  At a meeting attended by the defendant, the mother, the child and the pastor, the defendant admitted that he touched the child inappropriately.  During trial, the defendant filed a motion in limine seeking to preclude the state from calling the pastor as a witness, claiming that his communications to the pastor were subject to the clergyman's privilege set forth in General Statutes § 52-146b, which provides that a clergyman shall not disclose confidential communications made to him in his professional capacity unless the person making the confidential communication waives the privilege.  The trial court denied the motion, finding that the meeting with the pastor was not confidential as others were present and that, as the defendant was not seeking spiritual advice, the pastor was not acting in his professional capacity at the meeting.  The pastor subsequently testified that the defendant had acknowledged touching his stepdaughter inappropriately.  On appeal, the defendant claims that the trial court wrongly determined both that the presence of others at the meeting vitiated the clergyman's privilege and that the pastor was not acting in his professional capacity at the meeting.  The defendant also argues that a professional counselor he had consulted should not have been permitted to testify that the defendant told her that he had inappropriately touched his stepdaughter because that communication was privileged under General Statutes § 52-146s.  While § 52-146s provides that communications to a professional counselor shall generally not be disclosed absent the consent of the person who consulted the counselor, the trial court ruled that the privilege did not apply here because § 52-146s (c) (6) dictates that consent to disclosure is not required "[i]f child abuse . . . is known or in good faith suspected. . . ."  Among the defendant's other claims on appeal is that the trial court violated his right to confrontation by not allowing him to cross-examine the child concerning what he characterizes as her dramatic behavioral changes brought on by the family's adoption of two other children.  The defendant contends that such cross-examination would have enabled him to show that the child's allegations were a fabrication formulated by a troubled teenager in response to the diminished level of attention she was receiving at home.