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State v. Christian3/9/2004
admission of Joan Christian's testimony concerning the privileged communication was harmful because that testimony was " critical to the state's case." The defendant contends that it is more probable than not that the jury accorded greater weight to Joan Christian's testimony than to other testimony in the case. Specifically, the defendant points out that he had made his statements to Vorih, Ruggiero and Ford, indicating that he was the driver, when he was still "confused" and intoxicated, and that those statements later were clarified by the testimony of Kirton that the defendant, upon arriving at the hospital, initially believed that he had been the passenger. The defendant's communications to Joan Christian, on the other hand, were made after his intoxication and confusion had receded. In addition, the defendant argues that testimony concerning marital communications frequently is accorded greater weight than other types of testimony. See, e.g., Hall v. State, supra, 720 So. 2d 1049 ("a jury might reasonably be expected to accord substantial weight to . . . a confession, in part because of the very fact that it was made privately by a husband to his wife").
The state contends, in response, that the defendant cannot meet his burden. Specifically, the state argues that "it is unlikely that the jury placed much reliance" upon the privileged testimony because Joan Christian admitted on cross-examination that she and the defendant were getting divorced, that they were involved in a contentious custody dispute and that their relationship was poor. In addition, the state points out that Joan Christian's testimony was cumulative to the testimony of Vorih, Ruggerio and Ford concerning the defendant's similar statements to them that he was the driver. Finally, the state points to the "overwhelming" physical evidence establishing that the defendant was the driver of the vehicle at the time of the accident.
We agree with the state that the admission of the privileged testimony constituted harmless error. As the state correctly points out, Joan Christian's testimony that the defendant had admitted to operating the vehicle is merely cumulative of the testimony of Vorih, Ruggiero and Ford regarding the defendant's similar admission. "It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error." (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 639, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). Moreover, although the defendant presented some evidence that he was not the driver, the state presented an abundance of evidence to support a finding that the defendant had indeed been the driver. Specifically, Wilson testified that she heard a male voice coming from a person sitting in the driver's seat, behind the steering wheel. Bourque testified that, when he arrived at the scene of the accident, the victim "was in the passenger seat with her buttocks fully in the seat." Bourque also testified that, based upon his reenactment of the accident, he had determined that a woman of the victim's height and weight could not have moved from the driver's seat into the passenger's seat. The state also presented Kwasnoski, who testified that, under the circumstances of the accident, the "natural tendency" would have been for the occupants of the car to move "very much forward and slightly to the right . . . ." Finally, the state presented evidence that the injuries to the defendant's left clavicle were consistent with those that might be caused to a driver by a restraining device, such as the driver's side seat belt. In light
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