State v. Ashby ( 2021 )

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STATE v. ASHBY—CONCURRENCE AND DISSENT
MULLINS, J., concurring in part and dissenting in
part. I respectfully disagree with part I of the majority
opinion1 because, in my view, there is ample support
in the record for the trial court’s factual finding that
Kenneth Pladsen, Jr., was not acting as an agent of the
state when he elicited certain incriminating statements
from the defendant, Lazale Ashby. Accordingly, I would
conclude that the trial court correctly denied the defen-
dant’s motion to suppress those statements because the
state did not obtain them in violation of the defendant’s
sixth amendment right to counsel under Massiah v.
United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d
246 (1964). I would therefore affirm the defendant’s
convictions stemming from the December 1, 2002 mur-
der of the victim.2
Consistent with the majority of jurisdictions across
the country, this court has recognized that an informant
who obtains incriminating information from a defen-
dant is not an agent of the state for purposes of Massiah
unless the state had expressly or implicitly directed the
informant to obtain information, or offered the infor-
mant some type of benefit in exchange for information.
See, e.g., State v. Swinton, 268 Conn. 781, 858, 847 A.2d
921 (2004) (jailhouse informant was not state agent when
he obtained information without having been directed
to do so or offered reward). Pladsen’s testimony at
the suppression hearing, which this court is bound to
accept on appeal because the trial court explicitly cred-
ited it, establishes that these requirements are not pres-
ent in this case.
Pladsen testified that, during his single meeting with
Detective Andrew Weaver of the Hartford Police Depart-
ment on January 5, 2007, (1) Weaver never instructed
him to obtain information from or do ‘‘anything relative
to’’ the defendant, (2) he and Weaver made no ‘‘agree-
ment of any sort,’’ (3) it was not ‘‘implied’’ to him that
he should obtain information, and (4) Weaver made
‘‘very clear’’ he was not offering any benefits or deals
and, in fact, lacked the authority to do so. Pladsen fur-
ther testified that his subsequent decision, made several
months later, to obtain the incriminating statements
from the defendant was one that he made ‘‘on [his]
own,’’ rather than in response to any directive from
Weaver, and that he did so on the ‘‘spur of the moment’’
when ‘‘the opportunity presented itself . . . .’’ This tes-
timony provides ample—if not overwhelming—support
for the trial court’s finding that Pladsen was not a state
agent.
This case also lacks any of the other circumstances
typically characteristic of an agency relationship. The
state had no preexisting arrangement with Pladsen or
any plan to use his services. Pladsen had no history of
serving as an informant; indeed, Weaver was completely
unaware of Pladsen until he reached out to Weaver
and requested a meeting. Nor did the police have any
involvement in or control over Pladsen’s activities. They
were uninvolved in the placement of Pladsen in the cell
next to the defendant, and Weaver’s single meeting with
Pladsen occurred several months before Pladsen
obtained the incriminating information from the defen-
dant. During the intervening months, Weaver never
communicated directly with Pladsen and did not direct
or control his interactions with the defendant. Most
important, no state official ever asked, directed or sug-
gested that Pladsen obtain any information from the
defendant. In light of this evidence, I simply do not see
how the trial court’s finding that Pladsen was acting
on his own initiative, rather than as an agent of the
state, is not supported by substantial evidence.
The majority does not dispute most of these points.
Instead, it approaches the agency question from an
entirely different road—one that, in my view, cannot
be reconciled with this court’s prior cases. In so doing,
the majority implicitly overrules or abrogates numerous
of this court’s prior decisions addressing agency ques-
tions in the context of sixth amendment and other con-
stitutional claims. For instance, this court has long rec-
ognized that a trial court’s agency determination is a
factual question that must be upheld on appeal as long
as it is supported by substantial evidence. Today, how-
ever, the majority reverses that line of cases and con-
cludes that it is a mixed question of law of fact subject
to plenary review.
Furthermore, and far more significant, the majority
abandons this court’s long settled test for determining
whether an informant acted as a state agent—a test
requiring some showing that the police had expressly
or impliedly asked for information or offered an induce-
ment for obtaining it—in favor of a new standard under
which the dispositive question is whether the police
‘‘knew or should have known’’ that the conversation
with the informant ‘‘was likely to end in further deliber-
ate elicitation.’’ I respectfully disagree with this new
standard. In my view, it is based on a misreading of
the United States Supreme Court’s decision in United
States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L.
Ed. 2d 115 (1980), a case widely regarded as largely
irrelevant to the agency prong of Massiah, and is at odds
with precedent from this court and other jurisdictions.
Finally, even accepting the majority’s framing of the
correct standard, I disagree that Weaver ‘‘knew or
should have known’’ that his meeting with Pladsen, as
opposed to Pladsen’s own preexisting desire to curry
favor with the police, would have prompted Pladsen to
attempt to elicit additional incriminating information
from the defendant. In my view, the majority’s analysis
reads more into the testimony at the suppression hear-
ing than is appropriate, relies on factors that have lim-
ited or no relevance to agency, and is based primarily on
the majority’s own assumptions about what motivated
Pladsen and how he interpreted his meeting with
Weaver, some of which are undermined by Pladsen’s
own testimony.
To be sure, the majority raises some legitimate con-
cerns about the way in which Weaver handled his inter-
actions with Pladsen. In particular, Weaver asked Plad-
sen if he would be willing to wear a wire sometime in
the future in order to record his conversations with the
defendant. Although Weaver never pursued the wire
and made clear to Pladsen that he was not authorizing
such a tactic and, in fact, lacked authority to proceed
any further, such a statement, when considered in isola-
tion, could arguably have suggested to Pladsen that
additional incriminating information was desired. Ulti-
mately, however, the significance the majority accords
this statement is directly contradicted by Pladsen’s own
testimony—which was credited by the trial court—that
he had not been offered anything or directed to do
anything, and that he obtained the information from
the defendant, not as a result of anything Weaver had
said to him, but on his own initiative.
I
APPLICABLE LEGAL PRINCIPLES
I begin with the general principles governing the
defendant’s claim. Under Massiah v. United States,
supra, 377 U.S. 201, a defendant’s sixth amendment
right to counsel is violated if a state agent deliberately
elicits incriminating information from the defendant
after formal charges have been brought and outside the
presence of the defendant’s counsel. Id., 205–206. ‘‘[T]he
prosecutor and police have an affirmative obligation
not to act in a manner that circumvents and thereby
dilutes the protection afforded by the right to counsel.’’
Maine v. Moulton, 474 U.S. 159, 171, 106 S. Ct. 477, 88
L. Ed. 2d 481 (1985).
To prevail on a Massiah claim, the defendant must
demonstrate that the informant both (1) was acting as
an agent of the state, and (2) ‘‘deliberately elicited’’ the
incriminating statements from him. (Internal quotation
marks omitted.) State v. Swinton, supra, 268 Conn.
855–56. Under this dual pronged analysis, ‘‘the agency
inquiry is precedent to and distinct from determining
whether [the] agent ‘deliberately elicits’ information.’’
(Emphasis added.) Creel v. Johnson, 162 F.3d 385, 393
(5th Cir. 1998), cert. denied, 526 U.S. 1148, 119 S. Ct.
2027, 143 L. Ed. 2d 1038 (1999); see, e.g., State v. Swin-
ton, supra, 855–56 (analyzing separately questions of
agency and deliberate elicitation).
In the present case, the state does not contest that
Pladsen deliberately elicited information from the
defendant. The sole issue is whether Pladsen was acting
as an agent of the state when he did so. As I will explain;
see part II of this opinion; there is ample support in
the record for the trial court’s finding that he was not.
A
Standard of Review
Before addressing the substantive agency question,
however, I must note my disagreement with the majori-
ty’s treatment of the trial court’s finding that Pladsen
was not acting as an agent of the state as a question
of law that is subject to plenary review. I would adhere
to this court’s long line of decisions, all of which recog-
nize that such determinations are factual findings that
are entitled to deference on appeal.
It is well settled in Connecticut that ‘‘[t]he issue of
agency, even in a constitutional context, is primarily a
question of fact . . . .’’ (Citations omitted.) State v.
Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985); see
also State v. Swinton, supra, 268 Conn. 855 (agency is
‘‘issue of fact’’). Ordinarily, this court cannot overturn
factual findings unless they are clearly erroneous.
‘‘When, however, [a question of fact is essential to the
resolution of a constitutional claim and] the credibility
of the witnesses is not the primary issue, our customary
deference to the trial court is tempered by the necessity
for a scrupulous examination of the record to ascertain
whether such a factual finding is supported by substan-
tial evidence.’’ (Internal quotation marks omitted.) State
v. Alexander, supra, 185.
This ‘‘substantial evidence’’ standard of review, how-
ever, although less deferential than the clearly errone-
ous standard, does not amount to plenary review. See
State v. Pinder, 250 Conn. 385, 421, 736 A.2d 857 (1999)
(‘‘the ‘substantial evidence’ language’’ is ‘‘inconsistent
with the plenary review that we in fact conduct’’ when
reviewing legal question of whether confession is volun-
tary); see also State v. Johnson, 253 Conn. 1, 124–26, 751
A.2d 298 (2000) (Schaller, J., dissenting) (scrupulously
reviewing record for substantial evidence is more defer-
ential than plenary review). In other words, we cannot
disregard the trial court’s finding and make our own
independent determination as to whether Pladsen was
an agent of the state. Rather, the trial court’s conclusion
is ‘‘entitled to deference so long as [it is] supported by
substantial evidence . . . .’’ State v. Whitaker, 215
Conn. 739, 754, 578 A.2d 1031 (1990). That is why this
court has upheld findings that no agency relationship
existed on appeal, even when the record revealed some
evidence tending to show such a relationship. See State
v. Alexander, supra, 197 Conn. 187 (trial court’s finding
that private citizen was not state agent was supported
by substantial evidence despite extensive police
involvement and encouragement because ‘‘[b]alanced
against these factors’’ was evidence that ‘‘support[ed]
the trial court’s conclusion’’); see also State v. Lasaga,
269 Conn. 454, 466–67, 848 A.2d 1149 (2004) (upholding
finding of no agency relationship despite ‘‘conflicting
testimony regarding whether the police had asked [the
private citizen] to continue to provide them with more
information’’).
The majority acknowledges this ‘‘substantial evi-
dence’’ limitation on our scope of review in passing but
then proceeds to treat agency as a mixed question of
law and fact, deferring only to the trial court’s subsid-
iary factual findings, while reviewing de novo the
court’s ultimate determination of whether those facts
created an agency relationship.3
This court, however, has uniformly recognized that
the ultimate determination of agency is itself a factual
finding; see State v. Swinton, supra, 268 Conn. 855;
State v. Alexander, supra, 197 Conn. 185; that must be
upheld on appeal as long as there is substantial evidence
to support it. See State v. Betts, 286 Conn. 88, 101, 942
A.2d 364 (2008) (‘‘there was substantial evidence to
support the trial court’s conclusion that [the private
actor] was not an agent of the police’’); State v. Lasaga,
supra, 269 Conn. 466 (‘‘our examination of the record
reveals that there was substantial evidence for the trial
court’s conclusion’’ that private actor was not state
agent); State v. Alexander, supra, 185 (‘‘there was sub-
stantial evidence for the trial court’s conclusion that
[the private actor] was not acting as an agent of the
state’’); see also State v. Betts, supra, 95 n.14 (emphasiz-
ing that agency issues are correctly reviewed under
substantial evidence rather than plenary standard).
In footnote 19 of its opinion, the majority expressly
disavows the substantial evidence method of review
applied in these prior decisions—thereby rendering the
conclusions reached in those decisions of virtually no
precedential value—in favor of the de novo standard
employed by many of the federal courts of appeals.4
Although I welcome any tacit concession from the
majority that the trial court’s determination that Plad-
sen was not a state agent is supported by substantial
evidence and would have to be upheld under that stan-
dard, I see no compelling reason to take the drastic
step of overturning this body of case law, particularly
when neither party in the present case has explicitly
asked us to do so, and when federal courts of appeals
are split on the issue.5 See State v. McCleese, 333 Conn.
378, 412–13, 215 A.3d 1154 (2019) (‘‘when no party has
asked us to overrule precedent, we are particularly
reluctant to address . . . much less disturb’’ such prec-
edent).
The majority’s use of a plenary standard of review
colors its analysis in substantive ways. Rather than limit
itself to the question of whether there is adequate sup-
port in the record for the trial court’s finding, the major-
ity bases its analysis largely on its own assumptions
about Pladsen’s subjective motivations and how he
likely interpreted his conversation with Weaver. For
instance, the majority posits that Weaver’s meeting with
Pladsen must have ‘‘indicate[d]’’ to Pladsen that the
state wanted incriminating information about the defen-
dant; that Pladsen must have ‘‘readily infer[red]’’ that
the state only wanted verifiable evidence about this
particular case, ‘‘such as a recording or writing’’; that
their conversation suggested to Pladsen that the state
would be willing to provide him with a benefit in
exchange for information; and that the state’s decision
not to object to Pladsen’s subsequent request for modifi-
cation of his sentence ‘‘provided something objectively
valuable [to Pladsen] in exchange for [his] coopera-
tion.’’
Pladsen, however, who was questioned extensively
at the suppression hearing, never testified that he inter-
preted his meeting with Weaver in the manner that the
majority suggests. Nor did the trial court make any
such factual findings. I, of course, acknowledge that
our scrupulous review of the record ‘‘must take account
of any undisputed evidence that does not support the
trial court’s ruling . . . but that the trial court did not
expressly discredit.’’ State v. Edmonds, 323 Conn. 34,
39, 145 A.2d 861 (2016); see also State v. DeMarco, 311
Conn. 510, 520 and n.4, 88 A.3d 491 (2014). This basic
proposition does not, however, permit this court to
draw its own factual inferences from the evidence and
then use those inferred facts as the basis for reversing
the trial court’s ultimate finding that Pladsen was not
a state agent. The limited question before us is whether
the trial court’s finding is supported by substantial evi-
dence, not whether we, ourselves, would draw a differ-
ent conclusion on the basis of that evidence.
Indeed, a number of the majority’s assumptions about
how Pladsen interpreted his meeting with Weaver are
directly contradicted by Pladsen’s own testimony,
which the trial court expressly credited.6 For instance,
contrary to the majority’s supposition that the meeting
confirmed in Pladsen’s mind that the state would treat
him favorably in exchange for information about the
defendant, Pladsen testified that Weaver made it ‘‘very
clear’’ that he could offer no deals or benefits, and flatly
denied that he and Weaver had reached any mutual
understanding by ‘‘implication,’’ that anything had been
‘‘implied’’ to him, or that there was any ‘‘meeting of the
minds . . . .’’ Further, any suggestion by the majority
that Pladsen’s decision to elicit information from the
defendant was spurred on by Weaver is hard to square
with Pladsen’s testimony that, when he left the meeting,
he did not necessarily intend to seek information from
the defendant, and that his subsequent decision to do
so (made several months later) was one that he made
‘‘on [his] own.’’
Accordingly, I would adhere to this court’s prior deci-
sions and review the trial court’s determination of
agency only for substantial evidence. The majority’s
resort to plenary review, in addition to its overruling
of these prior cases, results in an analysis that is unteth-
ered to the trial court’s factual findings and is based
entirely on its own independent interpretation of the
evidence. Such an approach invades the province of
the trial court as principal fact finder. See, e.g., State v.
Johnson, supra, 253 Conn. 124 (Schaller, J., dissenting)
(application of de novo rather than substantial evidence
review to factual determination ‘‘invad[es] the province
of the jury’’).
B
Legal Standard for Determining Agency
I also disagree with the legal standard the majority
applies for determining whether Pladsen was a state
agent. Abandoning the multifactor test recognized in
this court’s prior agency cases, the majority relies on
United States v. Henry, supra, 447 U.S. 264, to conclude
that Pladsen was a state agent because Weaver ‘‘knew
or should have known’’ that the conversation with the
informant ‘‘was likely to end in further deliberate elicita-
tion.’’ I disagree with the majority’s adoption of this
new standard. As case law from this court and other
jurisdictions has recognized, agency depends not on
what the officer knew or should have known, but on
whether the officer’s conduct amounted to an express
or implied request for information or offer of a benefit
in exchange for information.
As an initial matter, Henry is of limited import in the
present case because it was decided in the context of
the deliberate elicitation prong of Massiah, rather than
the agency prong. Indeed, the agency relationship
between the inmate and the government was clear and
virtually undisputed in Henry. The inmate had been
serving the government as a paid informant for more
than one year pursuant to a contingency fee arrange-
ment under which the government would compensate
him only when he provided favorable information.7
United States v. Henry, supra, 447 U.S. 270. Govern-
ment officers directed the inmate to approach the defen-
dant, who was housed in the same jail awaiting trial,
and instructed him ‘‘not to initiate’’ any conversations
with the defendant but to ‘‘be alert to any statements’’
that the defendant might make about the crimes for
which he was charged. Id., 266. Despite these instruc-
tions, the inmate engaged the defendant in conversa-
tions and extracted incriminating statements from him,
which later were admitted against him at trial. Id., 266–
67. The government paid the inmate for this assistance.
Id., 266.
The United States Supreme Court framed the issue
as being ‘‘whether under the facts of this case a [g]overn-
ment agent ‘deliberately elicited’ incriminating state-
ments from [the defendant] within the meaning of Mas-
siah.’’ Id., 270. In answering this question in the affirmative,
the court relied on three factors: ‘‘First, [the informant]
was acting under instructions as a paid informant for
the [g]overnment; second, [the informant] was ostensi-
bly no more than a fellow inmate of [the defendant];
and third, [the defendant] was in custody and under
indictment at the time he was engaged in conversation
by [the informant].’’ Id. In response to the govern-
ment’s argument that the informant had been specifi-
cally instructed not to affirmatively seek information,
the court made the following observation, which the
majority seizes on in the present case: ‘‘Even if the
[officer’s] statement that he did not intend that [the
informant] would take affirmative steps to secure
incriminating information is accepted, he must have
known that such propinquity likely would lead to that
result.’’ (Emphasis added.) Id., 271.
I do not believe that Henry stands for the proposition
that agency depends on whether the officer who meets
with the informant ‘‘must have known’’ that their con-
versation would cause the informant to later attempt
to seek additional information from the defendant. See
State v. Willis, 496 S.W.3d 653, 709 (Tenn. 2016)
(Rejecting argument that ‘‘the defendant may establish
that an informant was a government agent by a mere
showing that the [s]tate ‘must have known that its agent
was likely to obtain incriminating statements’ from the
defendant without counsel present . . . . We must
reject any test that would deem an informant to be a
government agent simply because the government was
aware or ‘must have known’ that the informant would
likely receive incriminating statements from the defen-
dant.’’), cert. denied, U.S. , 137 S. Ct. 1224, 197
L. Ed. 2d 466 (2017).
Indeed, as courts have consistently recognized,
Henry says little about agency at all. The United States
Supreme Court ‘‘essentially assumed the existence of
agency’’ in Henry because the informant’s contingency
fee arrangement with the government made agency a
nonissue. Thomas v. Cox, 708 F.2d 132, 135 n.2 (4th
Cir.), cert. denied, 464 U.S. 918, 104 S. Ct. 284, 78 L.
Ed. 2d 262 (1983). Instead, the focus in Henry was on
the distinct question of whether the statements were
‘‘deliberately elicited . . . .’’ United States v. Henry,
supra, 447 U.S. 277 (Powell, J., concurring) (‘‘I under-
stand that the decision today rests on a conclusion
that this informant deliberately elicited incriminating
information’’); see also Creel v. Johnson, supra, 162
F.3d 393 (declining to adopt principle from Henry as
standard for determining agency because Henry con-
cerned only deliberate elicitation prong); United States
v. York, 933 F.2d 1343, 1356 (7th Cir.) (‘‘Henry . . .
focused more directly on whether the challenged state-
ments had been deliberately elicited rather than the
question of whether the informants were acting as gov-
ernment agents’’) (overruled in part on other grounds
by Wilson v. Williams, 182 F.3d 562, 565 (7th Cir. 1999)),
cert. denied, 502 U.S. 916, 112 S. Ct. 321, 116 L. Ed. 2d
262 (1991); United States v. Watson, 894 F.2d 1345,
1347–48 (D.C. Cir. 1990) (fact that informant was in
custody, which was relied on as relevant factor in
Henry, is irrelevant to agency); State v. Swinton, supra,
268 Conn. 858 (noting that Henry did not discuss
agency); State v. Alexander, supra, 197 Conn. 184(‘‘Henry did not specifically address the question of
agency’’). Thus, the majority’s reliance on Henry for the
governing standard on agency questions in misplaced.
Moreover, this court has never interpreted Henry as
suggesting that an agency relationship depends on what
the officer who met with the informant knew or should
have known. Instead, this court explained in Alexander:
‘‘In Henry, the [c]ourt considered it critical that the
informant, previously in the government’s paid employ
in similar missions, was specifically contacted by the
government and given his charge respecting the pro-
curement of possibly incriminating information from
[the defendant]. Also important to the Henry [c]ourt
was the fact that the informant’s mission was on a
[contingent fee] basis . . . thereby demonstrating a
formal prearrangement . . . between [the] state and
[the] informant . . . . From these circumstances the
[c]ourt in Henry was able to characterize the informant
as a [g]overnment agent expressly commissioned to
secure evidence . . . from the accused.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Alexander, supra, 197 Conn. 184, quoting Thomas v.
Cox, supra, 708 F.2d 135; see also State v. Swinton,
supra, 268 Conn. 858 (characterizing Henry as case in
which ‘‘government officials . . . identified [a] specific
[prisoner] from whom they wanted information and
found [an informant] to retrieve that information’’).8
Thus, it was the officers’ specific instructions to the
informant and their preexisting fee arrangement with
him—and not the officers’ constructive knowledge—
that drove the United States Supreme Court’s agency
analysis in Henry.
Consistent with this interpretation of Henry, this
court, in Alexander, established the following standard
for addressing agency questions: ‘‘The existence of an
agency relationship . . . turns [on] a number of factual
inquiries into the extent of police involvement with
the informant. Those inquiries include the following:
whether the police have promised the informant a
reward for his cooperation or whether he is self-moti-
vated . . . whether the police have asked the infor-
mant to obtain incriminating evidence and placed him
in a position to receive it . . . and whether the informa-
tion is secured as part of a government initiated, [preex-
isting plan].’’ (Citations omitted.) State v. Alexander,
supra, 197 Conn. 184–85. Since Alexander, this court
has consistently relied on these factors as ‘‘the primary
factors to be considered in determining when an other-
wise private citizen has become an agent of the govern-
ment.’’ State v. Gordon, 197 Conn. 413, 421, 504 A.2d
1020 (1985); see id. (relying on factors in context of
sixth amendment right to counsel); see also State v.
Betts, supra, 286 Conn. 89, 96 (fourth amendment search
and seizure); State v. Lasaga, supra, 269 Conn. 463–64
(fourth amendment search and seizure); State v. Swin-
ton, supra, 268 Conn. 855–59 (sixth amendment right
to counsel).
As the Alexander factors indicate on their face, an
agency analysis turns not on the officer’s constructive
knowledge about the informant’s likely future conduct,
but on whether the officer said or did anything that
amounted to an express or implied request for informa-
tion or offer of a reward for information. A review of
this court’s sixth amendment cases demonstrates that,
in the absence of these minimal requirements, there is
no agency relationship.
Alexander, this court’s leading agency decision in the
sixth amendment context, is perhaps the most compel-
ling example. In that case, the defendant was incarcer-
ated while awaiting trial on arson charges. State v. Alex-
ander, supra, 197 Conn. 181, 188. At the time, the victim,
who had been implicated as an accomplice in that arson,
was missing. Id., 181. James Papagolas, who had
befriended both the defendant and the victim, encoun-
tered two police officers by chance and informed them
that he was planning to visit the defendant in jail. Id.,
182, 186. Papagolas ‘‘agreed to contact the police if he
heard anything about the victim.’’ Id., 186. During a
subsequent visit, the defendant admitted to Papagolas
that he had killed the victim. Id. Papagolas immediately
informed the officers of the defendant’s confession. Id.
After learning of the defendant’s admission, the offi-
cers drove Papagolas to the jail on three subsequent
occasions for additional visits with the defendant. Id.
Each time, the officers waited for Papagolas outside
the jail, and, on the ride home, Papagolas told them
what he had learned from the defendant. Id. During
the final visit, the defendant told Papagolas where the
victim’s body was located. Id., 186–87. At his trial for
the murder, the defendant moved to suppress the
incriminating statements he made to Papagolas on the
ground that they were elicited from him without his
counsel present, in violation of Massiah. Id., 182–83.
The trial court found that Papagolas was not acting as
a state agent and admitted the statements. Id., 183.
This court affirmed, concluding that there was ‘‘sub-
stantial evidence’’ to support the trial court’s finding
because, ‘‘[a]lthough the police may have supported
and even encouraged Papagolas’ efforts to obtain infor-
mation from the defendant, their involvement was not
so extensive as to create an agency relationship.’’ Id.,
185–86. This court acknowledged that ‘‘[t]he transporta-
tion service provided by the police is the strongest
evidence of a possible agency relationship’’ and that
there was evidence that, ‘‘by the time of his final visit,
Papagolas was motivated, at least in part, by a feeling
of responsibility toward the police.’’ Id., 187. ‘‘There was
also conflicting testimony about whether [the officers]
ever asked Papagolas to go to the jail to get information
as opposed to simply supporting his own decision to
go there.’’ Id. Nonetheless, this court concluded that,
‘‘[i]n sum,’’ the record provided adequate support for the
trial court’s finding because ‘‘[b]alanced against these
factors, which tend to show police involvement, is the
fact that the police neither initiated contact with Papa-
golas nor directed his activities. Papagolas had no previ-
ous affiliation with the police and was neither rewarded
monetarily nor promised any favors in return for his
cooperation.’’ Id.
Given the officers’ extensive involvement with Papa-
golas—they drove him to visit the defendant multiple
times after learning he had elicited a confession from
the defendant—they surely ‘‘knew or should have
known’’ that their conduct would lead to Papagolas’
attempt to elicit additional incriminating statements
from the defendant. See State v. Betts, supra, 286 Conn.
98 (‘‘[Alexander] illustrates how extensive police con-
tact with a private citizen may be without creating an
agency relationship’’). Nonetheless, this court upheld
the trial court’s finding that Papagolas was not an agent
of the state, demonstrating that agency does not depend
on what the officers must have known but, rather, on
whether they ‘‘directed [the informant’s] activities’’ or
promised something ‘‘in return for [the informant’s]
cooperation.’’9 State v. Alexander, supra, 197 Conn. 187.
Indeed, as I will explain; see part II of this opinion;
Alexander cannot be reconciled with the majority’s con-
clusion in the present case.10
This court also emphasized these baseline agency
requirements in the jailhouse informant context in State
v. Swinton, supra, 268 Conn. 781. In Swinton, an inmate
assisted the police in multiple cases unrelated to the
defendant. Id., 852–53. While still serving as an infor-
mant in one of those unrelated cases, the inmate had
numerous conversations with the defendant, during
which the defendant made incriminating statements.
Id., 853. This court held that the inmate was not an
agent of the state when he obtained these statements
because the police had given him ‘‘no instructions what-
soever . . . that he was to gather information about
crimes . . . or that he would be rewarded if he pro-
vided any such information.’’ (Internal quotation marks
omitted.) Id., 858. This court emphasized that, in the
absence of any such directive or promise, ‘‘a trial court
[correctly] may determine that an informant was not
so much a government agent . . . as he was an entre-
preneur who hoped to sell information to the govern-
ment.’’ (Internal quotation marks omitted.) Id.; see also
State v. Lasaga, supra, 269 Conn. 466 (private citizen
was not state agent when police promised him no favors
in return for cooperation); State v. Gordon, supra, 197
Conn. 422–23 (private citizen was not state agent when
there was no evidence to support claim of ‘‘implied
exchange of promises [to] obtain information for the
state’’ in exchange for benefit).
Consistent with Alexander and Swinton, courts in
other jurisdictions similarly recognize that some type
of state directive or promise is an essential prerequisite
to an agency relationship under Massiah. ‘‘Although
there are some differences in the approaches of the
various jurisdictions, they are unified by at least one
common principle: to qualify as a government agent,
the informant must at least have some sort of agreement
with, or act under instructions from, a government offi-
cial.’’ Manns v. State, 122 S.W.3d 171, 183–84 (Tex.
Crim. App. 2003); see, e.g., United States v. Ocean, 904
F.3d 25, 33 (1st Cir. 2018) (‘‘[a] successful Massiah
objection requires a defendant to show, at a bare mini-
mum, that the person with whom he conversed had
previously been enlisted for that purpose by the authori-
ties’’ (internal quotation marks omitted)), cert. denied
sub nom. Mitchell v. United States, U.S. , 139
S. Ct. 931, 202 L. Ed. 2d 656 (2019), and cert. denied,
U.S. , 139 S. Ct. 1362, 203 L. Ed. 2d 596 (2019);
Creel v. Johnson, supra, 162 F.3d 394 (‘‘[i]n the absence
of a quid pro quo between [the informant] and [the
police], and in the absence of instruction or control
by the [s]tate, we hold that [the informant] was not a
government agent’’); United States v. Birbal, 113 F.3d
342, 346 (2d Cir.) (‘‘[o]ther circuits agree that an infor-
mant becomes a government agent . . . only when the
informant has been instructed by the police to get infor-
mation about the particular defendant’’), cert. denied,
522 U.S. 976, 118 S. Ct. 433, 139 L. Ed. 2d 333 (1997);
United States v. Brink, 39 F.3d 419, 423 (3d Cir. 1994)
(‘‘[a]n inmate who voluntarily furnishes information
without instruction from the government is not a gov-
ernment agent’’); Depree v. Thomas, 946 F.2d 784, 794
(11th Cir. 1991) (‘‘[a]t a minimum . . . there must be
some evidence that an agreement, express or implied,
between the individual and a government official
existed at the time the elicitation takes place’’); Com-
monwealth v. Foxworth, 473 Mass. 149, 158, 40 N.E.3d
1003 (2015) (‘‘[a]n individual’s actions will not be attrib-
uted to the [s]tate if no promises are made for that
individual’s help and if nothing was offered to or asked
of that individual’’ (emphasis omitted; internal quota-
tion marks omitted)).11
In adopting this new ‘‘must have known’’ standard
from Henry, under which there need not be any show-
ing that the officer expressly or tacitly asked for infor-
mation or offered a benefit in exchange for it, the major-
ity impliedly overrules all of this court’s aforementioned
agency decisions, which had explicitly recognized these
elements as the minimum requirements needed to
establish an agency relationship under Massiah. In my
view, this prior approach, which is fully consistent with
decisions from other jurisdictions, ‘‘gives better guid-
ance to law enforcement authorities’’ about ‘‘what they
can or cannot do’’; United States v. LaBare, 191 F.3d
60, 65 (1st Cir. 1999); than the amorphous ‘‘must have
known’’ test that the majority announces today.
I would therefore adhere to the agency standard
employed in this court’s prior decisions. With that stan-
dard in mind, I turn to an analysis of the evidence in
the present case.
II
ANALYSIS
In my view, and in light of the authorities discussed
in part I of this opinion, there is substantial evidence
in the record to support the trial court’s finding that
Pladsen was not acting as a state agent when he elicited
the incriminating information from the defendant.
Indeed, Pladsen’s testimony at the suppression hearing,
which this court is bound to accept on appeal because
the trial court credited it; see, e.g., State v. DeMarco,
supra, 311 Conn. 519–20; is itself sufficient to support
the trial court’s finding because it directly undermines
the essential requirements of agency. Pladsen testified
that he and Weaver entered into no ‘‘agreement of any
sort,’’ including by ‘‘implication.’’12 Pladsen further testi-
fied that Weaver did not offer him any benefits but had
in fact made ‘‘very clear’’ that he ‘‘wasn’t allowed to
make any deals’’ or ‘‘do anything’’ without authorization
from the Office of the State’s Attorney.13 See, e.g.,
United States v. Johnson, 4 F.3d 904, 912 (10th Cir.
1993) (there was no agency relationship when govern-
ment indicated it was offering no benefit in exchange
for information), cert. denied, 510 U.S. 1123, 114 S. Ct.
1082, 127 L. Ed. 2d 398 (1994), and cert. denied sub
nom. Carroll v. United States, 510 U.S. 1123, 114 S. Ct.
1081, 127 L. Ed. 2d 398 (1994), and cert. denied sub
nom. Nottingham v. United States, 510 U.S. 1123, 114
S. Ct. 1081, 127 L. Ed. 2d 398 (1994); Commonwealth
v. Foxworth, supra, 473 Mass. 158 (jailhouse informant
was not state agent when police told him they lacked
authority to enter into any agreements with him and
that no promises were being made).
Furthermore, Pladsen testified that Weaver did not
direct him to take any action relative to the defendant
and that he decided to elicit the incriminating informa-
tion on his own accord:
‘‘[The Prosecutor]: With respect to any of those
actions . . . up to the point when [the defendant] gave
you the [note] or even [when] subsequently talking to
[the defendant] again this week, did Detective Weaver
ever direct you to do anything relative to [the defen-
dant]?
‘‘[The Prosecutor]: You did this on your own?
‘‘[Pladsen]: Yes.
***
‘‘[Defense Counsel]: Did you talk to Detective Weaver
about different ways to obtain information from [the
defendant]?
‘‘[Pladsen]: No. No, not at all.
‘‘[Defense Counsel]: Did Detective Weaver ever speak
to you about getting information from [the defendant]
by asking him questions about his cases?
‘‘[Pladsen]: No. He never told me to ask [the defen-
dant] questions about his cases.’’ (Emphasis added.)
In fact, Pladsen testified that, when he asked Weaver
if he should obtain information from the defendant,
Weaver told him to ‘‘just wait’’ until he could speak to
the Office of the State’s Attorney to determine how, or
if, to proceed. Despite this admonishment, and despite
not having communicated directly any further with
Weaver for several months, Pladsen took it upon him-
self to convince the defendant to write a note containing
details about the crime under the guise that Pladsen
would use it to discredit Weaver as a trial witness.
Regarding his decision to seek the note, Pladsen testi-
fied:
‘‘[Defense Counsel]: And was it your testimony that
it was your idea to try to get [the defendant] to write
something down?
‘‘[Pladsen]: Yes. It was. It was kind of a spur of the
moment type of thing. It wasn’t like I planned on like
doing it, but the opportunity presented itself, so I took
advantage of it if you want to say.’’
Pladsen’s testimony conclusively demonstrates that
he did not elicit the information in response to any
express or implied agreement with or directive from
Weaver. Rather, Pladsen obtained the information on
his own initiative, or, as Pladsen put it, ‘‘on [his] own,’’
as a ‘‘spur of the moment’’ decision he made when ‘‘the
opportunity presented itself . . . .’’ This testimony
alone permitted the trial court to find that Pladsen ‘‘was
not so much a government agent . . . as he was an
entrepreneur who hoped to sell information to the gov-
ernment.’’ (Internal quotation marks omitted.) State v.
Swinton, supra, 268 Conn. 858; see also United States v.
Birbal, supra, 113 F.3d 346 (‘‘[t]he [s]ixth [a]mendment
rights of a talkative inmate are not violated when a
jailmate acts in an entrepreneurial way to seek informa-
tion of potential value, without having been deputized
by the government to question that defendant’’); United
States v. York, supra, 933 F.2d 1356 (Massiah is not
violated when ‘‘an individual, acting on his own initia-
tive, deliberately elicits incriminating information’’
(internal quotation marks omitted)).
Moreover, the state’s minimal contact with Pladsen
and lack of control over his activities provides even
further support for the trial court’s finding that he was
not acting as an agent of the state. See Thomas v. Cox,
supra, 708 F.2d 137 (single meeting between inmate
and officer, at which officer instructed inmate to listen
but not to ask questions, did not demonstrate ‘‘requisite
degree of . . . ongoing cooperation between [the]
state and [the] witness required to implicate the state’’14
(internal quotation marks omitted)). Indeed, the police
involvement in the present case was far less extensive
than the officer provided ‘‘transportation service’’ that
this court held was insufficient to establish agency in
State v. Alexander, supra, 197 Conn. 186–87. See part
I B of this opinion.
Pladsen and Weaver had a single meeting on January
5, 2007. The police did not seek out Pladsen. It was
Pladsen who initiated the meeting by representing in
his December 27, 2006 letter to Weaver that he had
incriminating information he wanted to provide. Plad-
sen had no history of serving as an informant, and
Weaver was completely unaware of Pladsen until
receiving his letter. The police also did not put Pladsen
in a position to obtain information from the defendant.
They were uninvolved in placing Pladsen in the cell
next to the defendant, and no one instructed Pladsen
to cultivate a relationship with him. Moreover, following
their meeting, Weaver had no control over whether, or
how, Pladsen interacted with the defendant. See, e.g.,
United States v. Li, 55 F.3d 325, 328 (7th Cir. 1995)
(cooperating witness was not government agent when
‘‘[t]he evidence demonstrated no government control
over [the witness’] actions; most importantly, there was
no control over [the witness’] decision to arrange a
meeting with [the defendant]’’); United States v. Sur-
ridge, 687 F.2d 250, 255 (8th Cir.) (there was no Massiah
violation when ‘‘[the] police do nothing to direct or
control or involve themselves in the questioning’’), cert.
denied, 459 U.S. 1044, 103 S. Ct. 465, 74 L. Ed. 2d 614(1982).
I recognize that, as the majority points out, there
were certain aspects of Weaver’s meeting with Pladsen
that could serve as evidence of the existence of an
implied agency relationship. See, e.g., Ayers v. Hudson,
623 F.3d 301, 311–12 (6th Cir. 2010) (agency may be
established through implicit conduct because, other-
wise, ‘‘the [s]tate [could] accomplish with a wink and
a nod what it cannot do overtly’’ (internal quotation
marks omitted)); Commonwealth v. Foxworth, supra,
473 Mass. 158 (‘‘[a]n agency relationship may arise other
than by express agreement, and may evolve . . . by
implication from the conduct of the parties’’ (internal
quotation marks omitted)). Specifically, Weaver told
Pladsen that the police were ‘‘always interested’’ in and
would ‘‘listen’’ to verifiable information, asked Pladsen
if he would be willing to wear a wire at some point in the
future, and left Pladsen with his contact information.
In light of the entire record, however, these facts
do not justify overturning the trial court’s finding that
Pladsen was not a state agent. First, none of these
statements or actions amounts to an express or implied
request for information or offer of a benefit.15 Second,
and most important, Pladsen’s testimony demonstrates
that he did not interpret Weaver’s actions as tacitly
suggesting that he should obtain information from the
defendant or that he would receive a benefit for doing
so.16 Pladsen testified that he and Weaver had no mutual
understanding or ‘‘meeting of the minds,’’ and that
‘‘there was nothing implied . . . there was no implica-
tion, and there was no contractual agreement of any
sort.’’ Pladsen further testified that Weaver never told
him to ask the defendant questions about Weaver’s
cases or to ‘‘do anything relative to’’ the defendant, that
he obtained the information from the defendant ‘‘on
[his] own,’’ and that Weaver had made it ‘‘very clear’’
that he ‘‘couldn’t do anything’’ or offer any benefits.17
Whether this court believes Pladsen’s testimony that
Weaver had not implied to him that he would receive
a benefit in exchange for information is beside the point.
The trial court credited Pladsen’s testimony, and this
court must defer to that credibility assessment on
appeal.18 I see nothing in the record to suggest that
Pladsen’s testimony that he and Weaver entered into no
express or implied quid pro quo was false or mistaken.
Indeed, Weaver’s account of the meeting was fully con-
sistent with Pladsen’s account in this regard.19
On the basis of this evidence—Pladsen’s testimony
that he was acting on his own initiative rather than in
response to an express or implied agreement with or
directive from the state, and the absence of any signifi-
cant police involvement or control—there is substantial
evidence in the record to support the trial court’s finding
that Pladsen was not acting as an agent of the state
when he elicited the incriminating information from the
defendant.20
III
THE MAJORITY’S ANALYSIS
Even accepting the majority’s premise that agency
depends on whether Weaver ‘‘knew or should have
known’’ that his meeting with Pladsen was likely to
cause Pladsen to attempt to elicit additional information
from the defendant, I disagree that such a standard
has been satisfied in the present case. As previously
explained, Weaver gave Pladsen no directives and
offered him no rewards, and even ignored his calls in
the months following their meeting. Nor is there any
evidence that Pladsen ever informed Weaver that he
intended to obtain information from the defendant. This
is a far cry from Henry, in which the government had
a long-standing agreement with the informant to pay
him only when he obtained favorable information and
specifically directed the informant to approach the
defendant and to attempt to obtain incriminating state-
ments.21 See United States v. Henry, supra, 447 U.S.
266, 270.
In concluding otherwise, the majority contends, first,
that Pladsen’s meeting with Weaver ‘‘appears to have
focused Pladsen’s efforts’’ on this particular case, as
opposed to the defendant’s other then pending criminal
matters. I disagree that this is a fair inference on this
record. Neither Weaver nor Pladsen testified to this
effect. Although they discussed the defendant’s case
during their meeting, there is no evidence that Weaver
was the one to bring it up or that the information Plad-
sen had hoped to convey to Weaver during this meeting
concerned only unrelated cases.
To the contrary, the record suggests that the opposite
inference is far more reasonable. Pladsen’s letter to
Weaver dated December 27, 2006, stated that Pladsen
had ‘‘some information that could be very useful to
[him] and one of [his] cases.’’ The investigation of the
victim’s murder was one of Weaver’s cases, and Weaver
testified at the suppression hearing that, during their
meeting, Pladsen provided him with information that
Pladsen had already obtained about the victim’s mur-
der. This strongly suggests that the ‘‘information’’ Plad-
sen offered to provide to Weaver in the letter concerned
this case.22 Moreover, Weaver testified that Pladsen had
asked whether he would receive a benefit if he provided
information ‘‘about the [victim’s] investigation,’’ sug-
gesting that Pladsen was the one to broach the topic.
On this same point, the majority goes on to conclude
that Pladsen’s discussion with Weaver must have sug-
gested to Pladsen that ‘‘the state was principally inter-
ested in objectively verifiable forms of evidence regard-
ing the defendant’s involvement in this particular case,
such as a recording or writing,’’ and that, ‘‘[a]lthough
Weaver made no explicit requests during this meeting,
the handwritten note that Pladsen ultimately produced
during the state’s case-in-chief mirrored those require-
ments precisely.’’ The majority appears to suggest that
the similarities between what Pladsen and Weaver dis-
cussed, and what Pladsen ultimately obtained, indicate
that Weaver had specifically requested that information.
I disagree.
The note hardly ‘‘mirror[s]’’ what Pladsen and Weaver
discussed in their meeting; it may be consistent with
what was discussed, but only on the most general of
levels, i.e., it concerned this case and was ‘‘verifiable’’
in that it was handwritten by the defendant, as opposed
to being based on Pladsen’s word alone. This does not
evidence the existence of an agency relationship. If
Weaver had mentioned a specific detail in the case,
such as the type of weapon used in the murder, and
Pladsen returned with information about that specific
detail, it might have suggested that Weaver had
requested that information. See Ayers v. Hudson, supra,623 F.3d 315–16 (inferring agency relationship when
informant ‘‘knew exactly what questions to ask [the
defendant] regarding the details of the murder’’ after
meeting with police). Nothing of the sort occurred here;
Pladsen and Weaver discussed the victim’s case in only
general terms. In any event, Pladsen’s testimony at the
suppression hearing forecloses any claim that Weaver
suggested that he obtain any information, verifiable or
otherwise, from the defendant. See part II of this opin-
ion.
Second, the majority places substantial significance
in the fact that Pladsen ‘‘sought assurance from Weaver
that a benefit would be made available in exchange for
his cooperation.’’ The fact that Pladsen hoped or even
expected to receive a benefit, however, did not render
him an agent. ‘‘We must not confuse speculation about
[an informant’s] motives for assisting the police for
evidence that the police promised [the informant] con-
sideration for his help or, otherwise, bargained for his
active assistance. [The informant’s] motives alone can-
not make him an agent of the police even if the police
knew and understood that his motives probably were
self-serving and related to getting police cooperation
in his own case.’’ Lightbourne v. Dugger, 829 F.2d 1012,
1021 (11th Cir. 1987), cert. denied, 488 U.S. 934, 109 S.
Ct. 329, 102 L. Ed. 2d 346 (1988). Indeed, ‘‘most inmates
who provide information to law enforcement officials
harbor the hope that their service will not go unre-
warded. . . . That inmates realize there is a market for
information about crime does not make each inmate
who enters the market a government agent.’’ (Citation
omitted.) United States v. York, supra, 933 F.2d 1357;
see also State v. Swinton, supra, 268 Conn. 858–59.
Relatedly, the majority appears to suggest that
Weaver encouraged Pladsen’s hope of receiving a bene-
fit. As the basis for this assertion, the majority contends
that, although Weaver told Pladsen that he could not
offer any deals or benefits, Weaver ‘‘(1) informed Plad-
sen that the Office of the State’s Attorney would have
to approve any ‘deals,’ and (2) made Pladsen ‘generally
aware’ of the fact that ‘any information received’ would
be conveyed to the Office of the State’s Attorney.’’ I
disagree.
Even if Weaver had said these things to Pladsen,
which is not clearly borne out by the record,23 it would
not change the analysis. Courts have addressed similar
statements and held that, without more, they do not
establish agency. See, e.g., United States v. Taylor, 800
F.2d 1012, 1015 (10th Cir. 1986) (statements to jailhouse
informant that information about cooperation would
be ‘‘passed on’’ to appropriate authorities were insuffi-
cient to demonstrate agency in absence of agreement
or offer of benefit (internal quotation marks omitted)),
cert. denied, 484 U.S. 838, 108 S. Ct. 123, 98 L. Ed.
2d 81 (1987); Commonwealth v. Foxworth, supra, 473
Mass. 157–58 (there was no implied agency, despite
police statements to jailhouse informant that informa-
tion provided would be forwarded to officials with deal-
making capacity, when police made no express or
implied promises).
If anything, the record reflects that Pladsen was
merely acting in accordance with his own long-standing
desire to curry favor with law enforcement when he
elicited the statements from the defendant. In August,
2006, months before meeting with Weaver, Pladsen
began cultivating a relationship with the defendant for
the specific purpose of using that relationship to coax
the defendant into divulging incriminating information
that he could then provide to law enforcement in
exchange for favorable treatment. Once Pladsen did so,
he initiated the meeting with Weaver, hoping Weaver
could help him secure a reduction in the twenty-five
year sentence he was serving for assaulting a prison
guard.
Far from encouraging that hope, Weaver made
‘‘clear’’ to Pladsen that he could not provide him with
any deals or benefits. Pladsen testified that this admon-
ishment had the effect of discouraging any hope or
expectation that he would receive anything in exchange
for his cooperation. See footnote 17 of this opinion and
accompanying text. Moreover, Pladsen testified—and
the trial court credited—that he obtained the informa-
tion from the defendant on his own accord. Accordingly,
it is pure speculation to conclude, on this record, that
‘‘the animating force for securing [the] information
[was] . . . attributable to the [state]’’; Schmitt v. True,
387 F. Supp. 2d 622, 640 (E.D. Va. 2005), aff’d sub nom.
Schmitt v. Kelly, 189 Fed. Appx. 257 (4th Cir.), cert.
denied, 549 U.S. 1028, 127 S. Ct. 577, 166 L. Ed. 2d
425 (2006); rather than to Pladsen’s own preexisting,
subjective hope that he might obtain a benefit. Pladsen
conducted himself exactly the same way before his
meeting with Weaver as he did after it.
Third, the majority contends that the fact that the
state did not object to Pladsen’s subsequent attempt to
obtain a reduction in his sentence is relevant because
it amounts to the provision of a benefit. Under the
specific circumstances of the present case, I disagree.
To have any bearing on the agency analysis, the benefit
must have ‘‘already been promised at the time the infor-
mant elicited the information; if not, later receipt of a
benefit is of no consequence.’’ Manns v. State, supra,
122 S.W.3d 188; see also Creel v. Johnson, supra, 162
F.3d 393 (decision of police not to prosecute was irrele-
vant to agency because there was no evidence that
‘‘anyone promised . . . not to pursue [the] charges in
exchange for [the informant’s] assistance’’ (emphasis
added)); Lightbourne v. Dugger, supra, 829 F.2d
1020–21 (agreement to assist informant in obtaining
bail did not create agency relationship because it was
not made until after informant elicited incriminating
statements); Commonwealth v. Foxworth, supra, 473
Mass. 158–59 (fact that informant received favorable
treatment was irrelevant to agency ‘‘[in the absence of]
evidence that such treatment had been promised in
exchange for information yet to be obtained’’).
Although I agree with the majority that the subse-
quent receipt of a benefit can, under some circum-
stances, serve as circumstantial evidence that an agency
relationship previously had existed, or that the benefit
previously had been offered, the record in this case
forecloses any such inference. Pladsen’s testimony at
the suppression hearing, which, again, this court must
accept because the trial court credited it, was that
Weaver offered him no benefits during their January 5,
2007 meeting. Weaver testified to the same effect.
Weaver and Pladsen had no further direct communica-
tions until months later, after Pladsen had obtained
the note.
Moreover, Pladsen testified at the defendant’s trial
that he was not expecting to receive a benefit because
Weaver had disclaimed any authority to provide him
with any benefit. See footnote 17 of this opinion. This
evidence demonstrates that any benefit Pladsen ulti-
mately received for his assistance had not been offered
to him before he elicited the incriminating information
from the defendant. In fact, this evidence strongly sug-
gests that the state’s decision to provide Pladsen with
a benefit had not even been made until after he obtained
the statements. Accordingly, Pladsen’s later receipt of
a benefit does not provide any evidence of agency.
Finally, the majority relies on the fact that the defen-
dant was incarcerated when Pladsen elicited the incrim-
inating statements from him. The majority cites the
United States Supreme Court’s observation in United
States v. Henry, supra, 447 U.S. 274, that ‘‘the mere fact
of custody imposes pressures on the accused; confine-
ment may bring into play subtle influences that will
make him particularly susceptible to the ploys of under-
cover [g]overnment agents.’’ The fact of custody, how-
ever, although relevant to the deliberate elicitation
prong of a Massiah claim, has no bearing on the thresh-
old question of agency, which focuses not on the sus-
ceptibility of the defendant to ploys, but on the ‘‘extent
of police involvement with the informant.’’ State v. Alex-
ander, supra, 197 Conn. 184.
Indeed, the United States Supreme Court clarified in
a footnote that ‘‘the fact of custody bears on whether
the [g]overnment ‘deliberately elicited’ the incriminat-
ing statements from [the defendant].’’ United States v.
Henry, supra, 447 U.S. 274 n.11. Relying on this foot-
note, the United States Court of Appeals for the District
of Columbia held that ‘‘it is of no moment that the incrim-
inating conversations took place while the accused was
incarcerated’’ because the fact of custody is relevant
only to the question of deliberate elicitation and ‘‘does
not bear [on] the anterior question whether th[e] [infor-
mant] was acting on behalf of the [g]overnment [which]
depends solely [on] whether he was acting [on] the
instruction of a government official.’’ United States v.
Watson, supra, 894 F.2d 1347–48; see also United States
v. Johnson, 196 F. Supp. 2d 795, 855, 860 (N.D. Iowa
2002) (fact that defendant was in custody demonstrated
deliberate elicitation but was not relevant to agency),
rev’d on other grounds, 338 F.3d 918 (8th Cir. 2003);
Wallace v. Price, Docket No. 99-231, 2002 WL 31180963,
*68 and n.54 (W.D. Pa. October 1, 2002) (fact of custody
relates to ‘‘the mental state of the defendant, his vulner-
ability while incarcerated, his susceptibility to artifice,
and the likelihood that he will expose incriminating
information to others,’’ none of which is relevant to
agency); State v. Willis, supra, 496 S.W.3d 714 (fact
of incarceration ‘‘do[es] not bear on the question of
whether [the informant] was acting as a government
agent’’).24 The fact that the defendant was in custody
when Pladsen elicited the incriminating information
from him, although pertinent to whether the statements
were deliberately elicited, is simply not relevant to the
question of whether Pladsen was an agent of the state.
For these reasons, I see no basis in the record to
conclude that Weaver knew or should have known that
his meeting with Pladsen or his subsequent telephone
call with him; see footnote 20 of this opinion; as opposed
to Pladsen’s obvious own preexisting desire to provide
the police with information in exchange for leniency,
was likely to result in Pladsen’s seeking further informa-
tion from the defendant. Accordingly, I would not con-
clude that Pladsen was a state agent, even under the
majority’s new formulation of the agency standard.
IV
CONCLUSION
In summary, courts should always scrutinize law
enforcement’s dealings with jailhouse informants to
ensure that the state is not circumventing criminal
defendants’ sixth amendment rights by ‘‘a wink and a
nod . . . .’’ Ayers v. Hudson, supra, 623 F.3d 312. At
the same time, not every encounter between the police
and an inmate establishes an agency relationship so as
to render inadmissible any incriminating information
that the inmate subsequently obtains from the defen-
dant. ‘‘[A]ll citizens . . . have a duty to report informa-
tion about criminal activities, and [although] the [s]ixth
[a]mendment may limit the government’s ability to
encourage such reporting behavior, the government
should not be required to actively discourage such
behavior either.’’ (Emphasis in original; internal quota-
tion marks omitted.) State v. Willis, supra, 496 S.W.3d
713; see also United States v. Johnson, supra, 4 F.3d
912 (‘‘we decline to handicap legitimate investigations
by assuming that any time the government is
approached by a would-be informant and eventually
uses evidence obtained by that informant, an implicit
agency relationship is established’’); United States v.
Malik, 680 F.2d 1162, 1165 (7th Cir. 1982) (rejecting
argument that ‘‘[g]overnment must go to extraordinary
lengths to protect defendants from their own loose
talk’’).
Under today’s decision, which holds that the trial
court was required to find agency even though the state
did not affirmatively request information from Pladsen
or offer any benefit in exchange for that information,
virtually every inmate who seeks out a state official to
provide information will be regarded as having become
an agent of the state unless the official responds with
complete silence or affirmatively dissuades the inmate
from seeking further information.25 See Thomas v. Cox,
supra, 708 F.2d 137 (declining to find agency on basis
of single meeting between police and inmate at which
no offers or promises were made, because ‘‘[t]o do so
would be in practical effect to establish the principle
that any voluntary proffer of inmate informer assistance
not met with silence or actually repudiated by state
officials would make inadmissible any inculpatory dis-
closures . . . subsequently made by an accused,’’
which neither Henry nor sixth amendment requires).
In my view, this stretches Massiah too far.
For the foregoing reasons, I would conclude that the
trial court’s finding that Pladsen was not acting as an
agent of the state is supported by substantial evidence.
Accordingly, I respectfully dissent in part.
1
I agree with and join parts II and III of the majority opinion.
2
I have reviewed the numerous other claims of error that the defendant
has raised in the present case; see footnote 2 of the majority opinion; and
conclude that none of them warrants a reversal of any of his convictions,
either because they lack merit, or because they constitute harmless error.
With respect to the trial court’s improper failure to instruct the jury on
third-party culpability; see part III of the majority opinion; I would conclude
that, assuming without deciding that such errors are subject to the constitu-
tional harmless error standard; see State v. Arroyo, 284 Conn. 597, 614, 935
A.2d 975 (2007); the error was harmless beyond a reasonable doubt. The
absence of the instruction did not preclude the defendant from advancing
his third-party culpability defense, as evidence of third-party culpability—
DNA from unknown individuals found on the victim and around her apart-
ment—was admitted into evidence at trial, and defense counsel argued
during closing argument that one of these unknown individuals could have
killed the victim. Further, the state’s case against the defendant was strong.
Among other things, the defendant’s DNA was found on the vaginal swab
taken from the victim and he provided a written, sworn statement to the
police in which he confessed in detail to having stabbed and strangled the
victim. See footnote 5 of the majority opinion and accompanying text.
3
After referencing the substantial evidence test, the majority observes in
the very next sentence that, ‘‘to the extent that the resolution of [the agency]
question calls for application of the controlling legal standard to the histori-
cal facts, it presents a . . . question of law . . . which [this court reviews]
de novo.’’ (Internal quotation marks omitted.) As support for this proposition,
the majority quotes State v. Castillo, 329 Conn. 311, 322–23, 186 A.3d 672(2018), a decision addressing whether the defendant was in custody for
purposes of a fifth amendment claim, which is an issue that, unlike the
issue of agency, has long been recognized as a mixed question of law and
fact subject to de novo review.
4
As a justification for its departure from this court’s prior cases, the
majority notes that ‘‘questions of law abound in [the] context’’ of an agency
analysis. See footnote 19 of the majority opinion. But Alexander and its
progeny were not incorrect in applying substantial evidence review merely
because the question of agency involves the application of a legal standard.
Many disputed issues require a legal standard to be applied to underlying
facts, yet are not treated as questions of law subject to de novo review.
See, e.g., Ferndale Dairy, Inc. v. Geiger, 167 Conn. 533, 537–38, 356 A.2d
91 (1975) (‘‘it [was] a question of fact to be determined by the jury in applying
established legal principles whether the manner in which the [defendant’s]
car was operated and brought to a stop was the proximate cause of the
accident’’).
5
There also are federal courts of appeals that, consistent with Connecticut
case law, treat the ultimate finding of agency as a question of fact. See
United States v. Li, 55 F.3d 325, 328 (7th Cir. 1995); United States v. Van
Scoy, 654 F.2d 257, 261 (3d Cir.), cert. denied, 454 U.S. 1126, 102 S. Ct. 977,
71 L. Ed. 2d 114 (1981).
6
The trial court rejected the defendant’s claim that Pladsen’s testimony
at the suppression hearing should be discounted in light of his extensive
criminal history and mental health issues. Instead, the trial court observed
that his testimony was ‘‘intelligent and responsive . . . .’’ The trial court
then found: ‘‘[T]he court had sufficient evidence to assess the credibility of
Pladsen’s hearing testimony, and the court did credit Pladsen’s testimony.’’
7
The majority’s characterization of Henry as a case in which the informant
‘‘previously had been paid for providing information,’’ fails to adequately
capture how clear and indisputable the agency relationship was in that case.
The informant in Henry had not merely been paid for information in the
past; he also was subject to a formal, ongoing agreement with government
officials under which he would be compensated if, and only if, he provided
information that proved to be favorable. See United States v. Henry,
supra, 270.
8
See also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 893 (3d
Cir.) (characterizing Henry as concluding that informant was agent ‘‘because
he was paid and acting under instructions from the government,’’ and noting
that Henry did not ‘‘generalize these factors into a rule defining government
agency for future cases’’ (internal quotation marks omitted)), cert. denied
sub nom. Matteo v. Brennan, 528 U.S. 824, 120 S. Ct. 73, 145 L. Ed. 2d 62(1999); Manns v. State, 122 S.W.3d 171, 179 (Tex. Crim. App. 2003)
(‘‘[although] not addressing directly what makes an informant a government
agent, the [c]ourt’s [decision in Henry] at least indicates that an informant
qualifies if he has a prior arrangement with the government to be paid for
obtaining information and is directed in some manner to obtain information
from the defendant’’).
9
The majority suggests that Alexander was overruled by the United States
Supreme Court’s subsequent decision in Maine v. Moulton, supra, 474 U.S.
171, which recognized the police’s ‘‘affirmative obligation’’ not to circumvent
defendants’ sixth amendment right to counsel. I disagree. As with Henry,
Moulton involved a clear and indisputable case of agency and was decided
solely on the basis of the ‘‘deliberate elicitation’’ prong of Massiah. The
informant in Moulton had entered into an agreement to assist the police
in their investigation in exchange for leniency and, acting under police
instruction, secretly recorded a series of conversations between him and
his codefendant. Id., 163–64. The sole question in that case was whether
the informant had not ‘‘deliberately elicited’’ the statements because the
codefendant, rather than the informant, had been the one to initiate the
conversations. Id., 174–75. Because agency was not at issue, Moulton neither
overruled nor abrogated this court’s discussion of agency principles in Alex-
ander. See Creel v. Johnson, supra, 162 F.3d 393 (defendant’s ‘‘reliance on
Moulton [for applicable agency standard] is misplaced because Moulton,
which involved a clear case of agency, addressed the different issue of
whether the prohibition on using undisclosed agents to ‘deliberately elicit’
information extended to [when] the accused initiates contact with the
agent’’); United States v. Li, supra, 55 F.3d 328 (reference in Moulton to
government’s ‘‘affirmative obligation’’ to preserve sixth amendment rights
did not affect agency analysis because agency was not at issue); Common-
wealth v. Murphy, 448 Mass. 452, 460, 862 N.E.2d 30 (2007) (‘‘[a]gency was
not a contested issue in . . . Moulton’’ (citation omitted)); State v. Willis,
supra, 496 S.W.3d 709 and n.19 (Moulton addressed only deliberate elicitation
and was irrelevant to agency); Manns v. State, 122 S.W.3d 171, 179 (Tex.
Crim. App. 2003) (‘‘Moulton . . . adds little to the present discussion
[regarding agency]’’).
10
In addition to concluding that Alexander was overruled by Moulton;
see footnote 9 of this opinion; the majority writes Alexander off as being
of ‘‘limited utility’’ in the present case because the informant in Alexander
(1) had not been offered anything in exchange for his cooperation, and
(2) was not an inmate. Neither of these factors provides a valid basis for
distinguishing Alexander. Although it is true that the informant in Alexander
was offered no reward in exchange for information, the same is true of
Pladsen in the present case. Weaver testified that he offered Pladsen no
benefits or deals. Similarly, Pladsen testified that Weaver had offered him
no benefits and, in fact, told him that he lacked authority to do so, and the
trial court credited that testimony. This court cannot second-guess that
credibility determination on appeal. See part III of this opinion.
I also disagree that Alexander is inapplicable merely because the infor-
mant in that case was not an inmate. As I explain more fully in part III of
this opinion, courts have consistently recognized that, although the fact
of incarceration is relevant to whether the statements were ‘‘deliberately
elicited,’’ it is not relevant to whether the informant was an agent. See, e.g.,
United States v. Watson, supra, 894 F.2d 1347–48.
Moreover, I do not subscribe to the view that the informant in Alexander
had less of an incentive to cooperate with the police than Pladsen (or the
average jailhouse informant) and, thus, could not as easily become an agent
of the state, merely because he was not incarcerated. Although inmates
have obvious incentives to obtain information from fellow inmates to provide
to the police, individuals who are not incarcerated often have strong incen-
tives of their own to cooperate with law enforcement. See State v. Bruneau,
131 N.H. 104, 110, 552 A.2d 585 (1988) (Souter, J.) (observing that inducement
giving rise to agency relationship under Massiah ‘‘may derive its force from
any one of a wide variety of [third-party] interests: the good citizen may
respond from a sense of civic obligation, while the common informer may
be looking for prosecutorial leniency or even payment in cash’’). Indeed,
there was evidence that this was especially true of the informant in Alexan-
der, who was friends with the missing victim that the defendant had admitted
to murdering, and whose visits with the defendant admittedly were ‘‘moti-
vated, at least in part, by a feeling of responsibility toward the police.’’ State
v. Alexander, supra, 197 Conn. 182, 187. I would not provide incarcerated
defendants with diminished sixth amendment protections merely because
the informant who seeks information from them is not a fellow inmate.
11
The majority cites a number of cases that, in its view, support the
proposition that the ‘‘must have known’’ standard from Henry governs the
agency analysis. I respectfully disagree with the majority’s characterization
of these cases. Although a number of them discuss Henry, none of them
holds, as the majority does today, that an informant becomes a government
agent merely because the police ‘‘must have known’’ that their conversation
with an informant might result in that informant’s seeking information from
the defendant. Rather, consistent with the case law cited in the body of this
opinion, these cases all recognize that the critical inquiry is whether the
informant was acting pursuant to an express or implied agreement with
police. See Ayers v. Hudson, 623 F.3d 301, 310–16 (6th Cir. 2010) (observing
that agency may be established with evidence of either explicit directive to
obtain information or ‘‘implied agreement,’’ and concluding that agency had
been demonstrated by evidence showing that informant and police ‘‘were
working in conjunction with each other’’ to elicit information from defen-
dant); Randolph v. California, 380 F.3d 1133, 1139, 1144 (9th Cir. 2004)
(characterizing Henry as case addressing deliberate elicitation prong of
Massiah and concluding that informant acted as state agent when police
had returned him to cell that he shared with defendant after he had met
multiple times with state officials to provide incriminating information about
defendant, because evidence demonstrated that state ‘‘made a conscious
decision to obtain [the informant’s] cooperation and that [the informant]
consciously decided to provide that cooperation’’); Matteo v. Superinten-
dent, SCI Albion, 171 F.3d 877, 893 (3d Cir.) (characterizing decision in
Henry as case in which informant was found to be agent ‘‘because he was
paid and acting under instructions from the government,’’ and noting that
Henry did not ‘‘generalize these factors into a rule defining government
agency for future cases’’ (internal quotation marks omitted)), cert. denied
sub nom. Matteo v. Brennan, 528 U.S. 824, 120 S. Ct. 73, 145 L. Ed. 2d 62(1999); United States v. Johnson, 4 F.3d 904, 912 (10th Cir. 1993) (holding
that informant was not state agent because government offered no benefit
in exchange for informant’s cooperation, did not direct informant, and did
not assist informant in eliciting statements), cert. denied, 510 U.S. 1123, 114
S. Ct. 1082, 127 L. Ed. 2d 398 (1994), and cert. denied sub nom. Carroll v.
United States, 510 U.S. 1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994), and
cert. denied sub nom. Nottingham v. United States, 510 U.S. 1123, 114 S.
Ct. 1081, 127 L. Ed. 2d 398 (1994); Depree v. Thomas, supra, 946 F.2d 794(‘‘[a]t a minimum . . . there must be some evidence that an agreement,
express or implied . . . existed’’); Thomas v. Cox, supra, 708 F.2d 137(admonition by police to informant to ‘‘listen but don’t ask’’ does not estab-
lish agency ‘‘with no express or implicit quid pro quo undergirding it’’ (inter-
nal quotation marks omitted)).
12
Pladsen testified:
‘‘[Defense Counsel]: When Detective Weaver gave you his business card
with the numbers you described, is it correct it was your understanding
that if you were to obtain any information about [the defendant] that you
were to contact him?
‘‘[Pladsen]: I don’t think that would be a proper way of saying it because
that implies that we had some type of an agreement. What I would say
that what [Weaver] did was hey . . . if you want to contact me again,
because like I told you some of the time when he was up there we just kind
of talked about . . . different things like . . . he was telling me about the
Internet because I’ve never seen the Internet . . . I don’t know what that’s
about. So he was kind of friendly, but it could have been for just a casual
conversation. There was nothing implied one way or the other. It’s not
saying he would come up and b[e] my friend. I’m not saying that either, but
I’m saying it wasn’t implied one way or the other. There was no implication
and there was no contractual agreement of any sort.
‘‘[Defense Counsel]: Didn’t have a meeting of the minds?
‘‘[Pladsen]: Right. . . . There’s no meeting of the minds, no.’’ (Empha-
sis added.)
13
Likewise, Weaver testified that he made ‘‘clear’’ to Pladsen that he lacked
authority to enter into any deals or offer any benefits of any kind.
14
In this case, the question of whether an officer’s instruction to ‘‘listen
but not ask questions’’ is sufficient to create an agency relationship is not
at issue. Unlike the officer in Thomas, Weaver did not instruct Pladsen to
listen for information, or to do anything relative to the defendant. Weaver
testified that he merely told Pladsen that he ‘‘would be willing to listen’’ to
any information Pladsen wanted to provide. The present case thus, presents
an even weaker case for agency than the one rejected by the United States
Court of Appeals for the Fourth Circuit in Thomas. See footnotes 15 and
18 of this opinion.
15
Any reliance on Weaver’s statement that the police were ‘‘always inter-
ested’’ in and would ‘‘listen’’ to verifiable information as proof of agency is
especially dubious because it is not even clear that Weaver made this state-
ment in reference to information Pladsen might obtain in the future, as
opposed to information Pladsen had already obtained but was withholding
from Weaver. Weaver testified that he had the impression that Pladsen ‘‘knew
more’’ about the victim’s murder than he had let on during their meeting.
16
Even if Pladsen had subjectively believed that any of Weaver’s state-
ments constituted requests for information, it is unclear that such a belief,
alone, would have created an agency relationship. See Fairbank v. Ayers,
650 F.3d 1243, 1256 (9th Cir. 2011) (‘‘even if [the informant] subjectively
believed that the officer’s statement [that he was looking for the murder
weapon] was a request [for that information], this does not constitute the
requisite state involvement’’), cert. denied, 565 U.S. 1276, 132 S. Ct. 1757,
182 L. Ed. 2d 558 (2012).
17
Weaver’s admonishment that he lacked authority to provide any deals
or benefits evidently had an impact on Pladsen. At the defendant’s trial, a
few days after the suppression hearing, Pladsen testified:
‘‘[Defense Counsel]: And am I correct that as you sit there now today,
you’re still hoping for some sort of benefit?
‘‘[Pladsen]: No. [Weaver] made it perfectly clear to me that he’s not author-
ized to do anything of the [sort] on that.’’
18
I note that courts have frequently held that, in the absence of an express
or implied agreement, generalized instructions to listen for information are
insufficient to demonstrate agency. See, e.g., State v. Alexander, supra, 197
Conn. 186 (‘‘[t]he police had simply asked [the informant] to let them know
if he heard anything . . . [and] that request alone did not create an agency
relationship’’); see also Thomas v. Cox, supra, 708 F.2d 137 (admonition to
‘‘ ‘keep your ears’ open or to ‘listen but don’t ask’ ’’ was insufficient to
establish agency ‘‘with no express or implicit quid pro quo undergirding
it’’). As I have emphasized; see footnote 14 of this opinion; the facts of the
present case fall even further short of establishing agency than those at
issue in these prior decisions because Weaver did not instruct Pladsen to
listen for information (or to do anything at all) but merely said that he
generally would be willing to listen to whatever information Pladsen was
willing to provide.
19
The majority relies on the Superior Court’s decision in State v. Howell,
Superior Court, judicial district of New Britain, Docket No. CR-05-222048-
S (January 30, 2007) (Sheldon, J.), but that case is nothing like the present
case. First, the Superior Court in Howell, as a trial court viewing the evidence
on a clean slate, was required to conduct a plenary review of the evidence
and independently determine whether the informant was a state agent. In
the present case, however, our appellate review of the trial court’s finding
that Pladsen was not an agent is far more circumscribed, both by the substan-
tial evidence rule and by the trial court’s credibility findings. Second, the
facts of Howell are distinguishable. In Howell, during a telephone conversa-
tion with the informant, the officer affirmatively instructed the informant
to listen to incriminating information the defendant was providing, and even
told the informant that their conversation had made him an agent of the
state. See id. There are no such facts in the present case.
20
The majority contends that, even if Pladsen had not become a state
agent as a result of his January 5, 2007 meeting with Weaver, ‘‘surely, such
a relationship would have been established after Pladsen offered, and the
state affirmatively accepted,’’ the note that Pladsen elicited from the defen-
dant. Footnote 34 of the majority opinion. After Pladsen read the note to
Weaver over the telephone, Pladsen was confronted by the defendant, who
was angry that Pladsen had given the note to Weaver and asked Pladsen
to falsely claim authorship of the note. The majority contends that the
elicitation of this statement itself constitutes a Massiah violation that inde-
pendently justifies a reversal of the defendant’s convictions. Id. I disagree.
There is no evidence that Weaver said or did anything during that call
with Pladsen to suggest that he wanted Pladsen to obtain any additional
information from the defendant. Weaver merely accepted the information
Pladsen provided to him, which does not establish agency. See State v.
Willis, supra, 496 S.W.3d 712–13 (‘‘[t]he government’s willing acceptance of
information provided . . . by an . . . informant did not make the infor-
mant the government’s agent under the [s]ixth [a]mendment’’ (internal quota-
tion marks omitted)); Manns v. State, supra, 122 S.W.3d 189 (government’s
‘‘accept[ance] [of] the information [the informant] had to offer’’ was insuffi-
cient to establish agency).
21
I respectfully disagree with the majority’s suggestion that ‘‘Weaver told
Pladsen that he was interested in hearing new evidence relating to the
victim’s death . . . .’’ I see no evidence of any such statement in the record.
Although Weaver asked if Pladsen would be willing to wear a wire sometime
in the future should the Office of the State’s Attorney authorize such an
operation, this is hardly the same thing as telling Pladsen that he himself
was ‘‘interested in hearing new evidence’’ about the victim’s death. Again,
Pladsen’s own testimony at the suppression hearing demonstrates he did
not interpret Weaver’s comment in this manner. See part II of this opinion.
22
The majority contends that Pladsen’s December 27, 2006 letter to Weaver
‘‘referenced only unrelated criminal charges.’’ Although the majority is cor-
rect in noting that certain other references in the letter concerned unrelated
cases; see footnote 30 of the majority opinion; there is no indication that
Pladsen’s reference to ‘‘information that might be very useful’’ was not
related to this case.
23
I disagree with the majority that the record reflects that Weaver made
either of these statements to Pladsen. As to the first statement, Weaver
testified that he never mentioned to Pladsen anything about what the Office
of the State’s Attorney ‘‘could or could not do’’ in terms of approving deals
or offering benefits.
As to the second statement, the record is, at best, unclear as to whether
Weaver told Pladsen that he would convey any information he received to
the Office of the State’s Attorney. Pladsen testified that Weaver did not make
any such statement. Weaver testified to similar effect but was somewhat
equivocal. He testified:
‘‘[Defense Counsel]: Did you indicate to . . . Pladsen that you would
report any information you got from him to the [Office of the State’s Attor-
ney]?
‘‘[Weaver]: No.
‘‘[Defense Counsel]: Didn’t make that clear to him?
‘‘[Weaver]: No. I didn’t tell him that, if you tell me something right now,
I’m going to go back and tell the [Office of the State’s Attorney]. I listened
to what he had to say.
‘‘[Defense Counsel]: Isn’t it a fact that you indicated to him that any
contact you had with him would have to be reported to [the Office of the
State’s Attorney]?
‘‘[Weaver]: I did tell him that because I wanted to make sure that the
[Office of the State’s Attorney] knew that I was having contact with someone
about an ongoing case they’re investigating, so I thought it was important.
‘‘[Defense Counsel]: All right. So you made him generally aware that any
contact you had and any information received would go to the [Office of
the State’s Attorney]?
‘‘[Weaver]: Yes.’’
24
Although the Third Circuit Court of Appeals suggested that custody is
relevant to the agency analysis in Matteo v. Superintendent, SCI Albion,
171 F.3d 877, 894–95 (3d Cir.), cert. denied sub nom. Matteo v. Brennan,
528 U.S. 824, 120 S. Ct. 73, 145 L. Ed. 2d 62 (1999), this aspect of Matteo
has been widely criticized as being based on a misreading of Henry. See
United States v. Johnson, supra, 196 F. Supp. 2d 855, 860 (generally relying
on Matteo but noting that ‘‘[t]he court in Matteo may have gone too far’’
when it considered custody as relevant to agency); Wallace v. Price, supra,
2002 WL 31180963, *68 and n.54 (considering factors relied on in Matteo
but declining to grant weight to custody); State v. Willis, supra, 496 S.W.3d
713 n.22 (‘‘We note that the [lower court] correctly cited Matteo as stating
that [the fact of custody was] pertinent to the question of whether the
informant was a government agent. . . . We disagree with this portion of
Matteo’s analysis, as Matteo . . . incorrectly cited Henry for the proposition
that [this factor was] pertinent to the question of agency, rather than the
question of interrogation or deliberate elicitation.’’ (Citation omitted.)).
25
I endorse the majority’s assurance in footnote 24 of its opinion that
some affirmative action on the part of the state is necessary in order to
establish an agency relationship. I find it difficult, however, to reconcile
this assurance with the majority’s analysis in the present case, which relies
in substantial part on innocuous statements Weaver made to Pladsen, as
well as on Weaver’s failure to affirmatively dissuade Pladsen from seeking
further information.