Threats communicated during attorney-client discussion not admissible at trial for criminal threat

Corrine E. Gunning won in State v. Boatwright, No. 115,075 (Kan App. July 28, 2017), obtaining a new trial in a Sedgwick County criminal threat prosecution. During discussions with his attorney regarding other charges, Mr. Boatwright allegedly made some threatening statements about his ex-fiancée. Defense counsel was alarmed by these statement and disclosed them to law enforcement, which  resulted in the later charges. At trial, Mr. Boatwright objected to admission of the statements made to his attorney. After holding that the question regarding admissibility required separate analysis than the ethical question of whether defense counsel was permitted to disclose, the COA agreed with Mr. Boatrwright regarding admissibility: 

Boatwright's communication to [defense counsel] falls squarely within [the definition of attorney-client communication]. The record shows that the communication between Boatwright and [defense counsel] occurred during the course of [defense counsel's] representation of Boatwright, specifically during Boatwright's meeting with her to discuss a plea offer. Although Boatwright's comment is jarring in isolation, the expression of such frustrations is not an uncommon occurrence in the course of an attorney-client relationship, "particularly in an adversarial context, and may serve as a springboard" for discussion and attempts to dissuade the client on the part of the attorney. In re Grand Jury Investigation, 453 Mass. 453, 458, 902 N.E.2d 929 (2009). In fact, "'[a]bout half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.' Quoted in A. Kaufman, Problems in Professional Responsibility (1976)." McCandless v. Great Atlantic and Pacific Tea Co., Inc., 697 F.2d 198, 201-02 (7th Cir. 1983) (attributed to Elihu Root). Thus, Boatwright's threat was privileged, and no exception allowed its admission. The district court's admission of this evidence was in error.

The state's also claimed that any error was harmless in this case because other evidence which was not objected to would have resulted in conviction. The COA disagreed and held that the objections at trial sufficiently covered all evidence related to the statements and therefore reversed.

[Update: the state did not file a PR and the mandate issued on September 11, 2017.]