## Facts

- Raymond E. Godlewski arranged for his father to be killed and hired Gene Flack; Flack enlisted Michael Brown.
- On July 4, 1989, Brown drove Flack to the victim’s home; Flack shot the victim once in the head with a shotgun and Brown drove Flack away.
- After the killing, Flack told another person he committed the murder, and police were alerted; Godlewski and Brown were arrested, and Flack was later apprehended after fleeing out of state.
- The defendants were jointly tried using dual juries: one for Godlewski and another for Flack/Brown; each jury was excluded from certain portions of the prosecution’s case, but both heard all defense evidence.
- Godlewski testified he hired Flack due to alleged lifelong abuse and recent threats from his father; he was convicted of second-degree murder.
- Flack testified he did not commit the murder and claimed Godlewski was the shooter; Flack was convicted of first-degree murder with a true financial-gain special circumstance.
- Brown did not testify and argued the circumstantial evidence was insufficient; he was convicted.
- A jail inmate, Steve White, claimed he overheard a lockup conversation between Godlewski and Godlewski’s attorney suggesting Godlewski should say he committed the killing; Flack sought to introduce this testimony to support his defense.
- Godlewski objected that the overheard attorney–client communication remained privileged.

## Issues

1. Whether an attorney–client communication remains privileged when inadvertently overheard by a third party in a courthouse lockup.
2. Whether excluding testimony about such a communication, offered by a co-defendant, violates the co-defendant’s state or federal due process right to present a defense.

## Decision

- The court affirmed the convictions.
- The court held the overheard communication between Godlewski and counsel remained protected by attorney–client privilege and was properly excluded.
- The court held exclusion of the evidence did not deny Flack a fair trial or due process, despite Flack’s claim the testimony was exculpatory corroboration.
- The court noted the trial court took steps to reduce prejudice, including restricting prosecutorial argument about lack of corroboration for related defense testimony.

## Legal Principles

- Attorney–client privilege is not waived merely because a confidential communication is inadvertently overheard by a third party, absent waiver by the holder and where confidentiality was reasonably expected.
- A criminal defendant’s right to present a defense is subject to established evidentiary limits, including non-waived privileges.
- Due process does not require overriding attorney–client privilege to admit a particular item of exculpatory evidence, especially where the excluded evidence is corroborative rather than uniquely decisive and the trial remains fundamentally fair.

## Conclusion

The court upheld exclusion of an inadvertently overheard attorney–client communication as privileged and ruled that enforcing the privilege did not violate a co-defendant’s constitutional right to present a defense, affirming the murder convictions.


People v. Godlewski, 17 Cal. App. 4th 940 (Cal. Ct. App. 1993)