State v. Skok

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STATE OF CONNECTICUT v. JOANNE A. SKOK
(SC 19415)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa and Robinson, Js.
Argued February 11—officially released September 15, 2015
John L. Cordani, Jr., with whom was Damian K.
Gunningsmith, for the appellant (defendant).
Lawrence J. Tytla, supervisory assistant state’s attor-
ney, with whom, on the brief, was Michael L. Regan,
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. After a jury trial, the defendant,
Joanne A. Skok, was convicted of larceny in the first
degree in violation of General Statutes § 53a-122,1 and
conspiracy to commit larceny in the first degree in
violation of General Statutes §§ 53a-48 and 53a-122. The
convictions were based in part on evidence that
included warrantless recordings of telephone conversa-
tions between the defendant and Jacqueline Becker,
which were recorded with Becker’s, but not the defen-
dant’s, consent. The principal issue on appeal2 is
whether the recording of those telephone conversations
without a warrant or the defendant’s consent violates
the prohibition on unreasonable searches and seizures
under article first, § 7, of the Connecticut constitution.
The defendant also argues that she was denied due
process because the trial court failed to conduct an
independent inquiry regarding her competence to stand
trial pursuant to Pate v. Robinson, 383 U.S. 375, 386,
86 S. Ct. 835, 15 L. Ed. 2d 815 (1966), after she alleged
that her physical condition prevented her from sitting
for trial for an extended period of time.3 We conclude
that recording a telephone conversation with the con-
sent of one party to that conversation does not violate
article first, § 7, of the state constitution, and that the
trial court’s failure to inquire into the defendant’s com-
petency was not improper. We therefore affirm the judg-
ment of the trial court.
The jury reasonably could have found that the defen-
dant defrauded Becker, an elderly widow, of tens of
thousands of dollars when, after befriending Becker,
she devised and developed a story designed to make
Becker believe that the defendant was helping her
resolve a legal dispute and that a supposed mob boss
was involved in that dispute. The jury reasonably could
have found the following facts in support of its verdict
with respect to the crimes of which the defendant
was convicted.
The defendant and Becker developed a close friend-
ship after they worked together to organize a town fair.
They talked on the telephone daily, visited each other’s
houses, and occasionally spent a holiday together. The
two frequently discussed the happenings of their
respective families, the town fair, financial and health
problems, and other topics of common discussion
among friends. As close friends are wont to do, Becker
and the defendant shared confidences between them-
selves. When the defendant shared with Becker that
she was unable to pay some of her medical bills related
to various health problems she was suffering, Becker
loaned her money to cover those expenses. Becker,
too, at one point confided in the defendant and the
defendant’s husband, John Skok, regarding a legal prob-
lem she was facing. It was that revelation by Becker
that provided the catalyst for the defendant’s elaborate
ruse aimed at defrauding Becker out of her retire-
ment savings.
Becker’s legal issue first arose after she agreed to
cosign a loan for her grandson to purchase a car. Becker
submitted the application paperwork, but when she did
not hear back from the automobile dealership and her
grandson later came to her house with the car, Becker
assumed that someone else had cosigned the loan
because she never ‘‘sign[ed] the deed.’’ Becker’s grand-
son was later involved in a car accident and a legal
action was brought against Becker after the car was
repossessed. Though Becker claimed that the car was
not hers, she later learned that the loan and the car’s
registration were in her name alone, and that her signa-
ture had been forged.
When Becker relayed these problems to the defen-
dant, the defendant offered to help. She told Becker
that John Skok’s nephew, Stuart Skok, was employed
by the Federal Bureau of Investigation (FBI) and could
‘‘quietly check’’ into what had happened with the car’s
registration. The defendant told Becker not to discuss
Stuart Skok’s involvement in the matter with anyone
because he could get in trouble with the FBI if they
knew he was working on a private case. The defendant
later informed Becker that Stuart Skok’s investigation
had uncovered that a mob boss owned the dealership
where the car was purchased. The defendant advised
Becker that she needed to hire a private investigator
and an attorney, and later informed her that a legal
action would be filed on Becker’s behalf against the
mob boss. Becker never personally met or spoke with
anyone named Stuart Skok, the purported private inves-
tigator, or the purported attorney. Rather, the defendant
claimed that she would serve as the conduit for all of
the necessary information between Becker and those
individuals.
The defendant also claimed to serve as the conduit
for the purported payments that Stuart Skok, the private
investigator, and the attorney required for their ser-
vices. The defendant periodically told Becker how
much was supposedly owed and requested that a check
for that amount be paid from Becker directly to the
defendant and John Skok or that Becker deliver to the
defendant or John Skok the requested amount in cash.
Additionally, instead of repaying Becker for the loans
she had made to the defendant to cover the defendant’s
medical costs, the defendant offered to reduce the
amount Becker owed in litigation costs by whatever
amount the defendant owed Becker.
In total, Becker gave the defendant more than
$40,000. Although all of Becker’s payments were depos-
ited into a joint bank account belonging to the defendant
and John Skok, there were never any withdrawals from
that account that corresponded with the amounts
deposited, nor any checks made out to Stuart Skok, or
to anyone who appeared to be an attorney or an inves-
tigator.
As time went on and Becker’s payments amassed,
the defendant’s story spiraled into an even more implau-
sible tale. The defendant explained that, in settlement of
Becker’s claims against the supposed mob boss, Becker
was to receive proceeds from the sale of the mob boss’
property in California to a South American diplomat.
Unfortunately, according to the defendant, the settle-
ment proceeds never arrived because the attorney to
whom the diplomat’s check was given had been hit by
a car, and his briefcase, with the check inside, was
missing.
In an effort to conceal her scheme, the defendant
insisted that Becker not allow her family to overhear
their conversations and admonished Becker to not tell
her family about the defendant’s involvement in the
legal action against the mob boss. One of Becker’s
granddaughters, who had been living with her at the
time, nevertheless became suspicious of the defen-
dant’s activities after she overheard Becker talking on
the telephone with the defendant about an attorney in
Brazil who had been struck by a car and lost a check that
was supposed to be given to Becker. Becker’s family
members then contacted the police, who were unable to
find any FBI personnel records associated with anyone
named Stuart Skok.
When police officers met with Becker at her home
to discuss the defendant’s conduct, she agreed to allow
them to set up recording equipment on her telephone.
The officers instructed Becker on how to use the
recording equipment and told her that, if the defendant
called and began discussing Becker’s legal action, she
should try to coax further conversation on that topic
from the defendant. Becker then recorded multiple con-
versations with the defendant wherein the defendant
insisted that Becker not allow her family members to
overhear their conversations and then made references
to ‘‘Stu’’—referring to Stuart Skok—‘‘lawyers,’’ and ‘‘the
mob.’’ The defendant also expressed her concern that
an attorney sent to South America to receive funds from
the sale of a mob boss’ house had been intentionally
hit by a car and demanded that Becker ask her financial
advisor to disperse funds from her retirement account
immediately so that Becker could pay the defendant
for attorney’s fees.
A state police officer was later present for and
recorded a conversation between Becker and the defen-
dant, after he coached Becker on the types of questions
to ask during the call. During that call, in response to
Becker’s allegations that the defendant had stolen her
money, the defendant asserted that she was only trying
to help Becker and claimed that the money went ‘‘where
it was supposed to go.’’ The defendant again made refer-
ences to an attorney, the mob, and Stuart Skok, and
insisted that ‘‘Stu’’ was a real person. The recordings
were admitted as full exhibits at trial and were played
for the jury without objection by the defendant.
Following trial, the jury returned a verdict of guilty
on both counts alleging larceny in the first degree and
conspiracy to commit larceny in the first degree. The
trial court thereafter rendered judgment in accordance
with the verdict, and this appeal followed. See footnote
2 of this opinion.
I
We begin with the defendant’s claim that the recorded
telephone conversations between Becker and herself
were obtained in violation of article first, § 7, of the
Connecticut constitution. The defendant contends that
she had a reasonable expectation of privacy in her tele-
phone conversations with Becker, notwithstanding
Becker’s consent to record them. She therefore argues
that recording the conversations without first obtaining
a warrant was unconstitutional because no exception
to the warrant requirement applies in this case. Because
the defendant did not object to the admission of the
recordings at trial, however, she seeks review under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989). See id. (permitting defendant to prevail on
unpreserved claim only if: ‘‘[1] the record is adequate
to review the alleged claim of error; [2] the claim is
of constitutional magnitude alleging the violation of a
fundamental right; [3] the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a
fair trial; and [4] if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt’’ [footnote omitted]); see also In re Yasiel R., 317
Conn. 773, 781, A.3d (2015) (modifying third
prong of Golding). The state agrees with the defendant
that the first two prongs of Golding are satisfied and
concedes that if the admission of the tape recordings
was improper, it was not harmless error. The state
argues, however, that the defendant’s constitutional
rights were not violated, and, therefore, her claim fails
under the third prong of Golding. We agree.
Article first, § 7, of the Connecticut constitution pro-
vides in relevant part: ‘‘The people shall be secure in
their persons, houses, papers and possessions from
unreasonable searches or seizures . . . .’’ In defining
the scope of that right, we focus on the defendant’s
reasonable expectation of privacy. State v. Davis, 283
Conn. 280, 324, 929 A.2d 278 (2007). If a defendant has
no reasonable expectation of privacy in the object of the
search, ‘‘subsequent police action has no constitutional
ramifications.’’ (Internal quotation marks omitted.)
State v. Boyd, 295 Conn. 707, 718, 992 A.2d 1071 (2010),
cert. denied, 562 U.S. 1224, 131 S. Ct. 1474, 179 L. Ed.
2d 314 (2011). To determine whether a defendant has
a reasonable expectation of privacy, we use the two
part test that Justice Harlan set forth in his concurrence
in Katz v. United States, 389 U.S. 347, 361, 88 S. Ct.
507, 19 L. Ed. 2d 576 (1967). That test asks, first, whether
the defendant manifested a subjective expectation of
privacy, and, second, whether that expectation is one
that society would consider reasonable. Id.; see State
v. Boyd, supra, 718; see also, e.g., State v. DeFusco, 224
Conn. 627, 636, 620 A.2d 746 (1993) (no reasonable
expectation of privacy in garbage placed on curb in
front of defendant’s house because myriad of intruders
could have sorted through it).
This court has not yet considered whether, under
article first, § 7, of the state constitution, recording a
telephone conversation with the consent of only one
party violates the nonconsenting individual’s reason-
able expectation of privacy, although we have pre-
viously upheld such recordings as constitutional under
the fourth amendment to the federal constitution. See
State v. Grullon, 212 Conn. 195, 207 n.7 and 207–208,
562 A.2d 481 (1989). A practice permitted under the
fourth amendment, however, may still be prohibited
under the Connecticut constitution because the federal
constitution ‘‘establishes a minimum national standard
for the exercise of individual rights and does not inhibit
state governments from affording higher levels of pro-
tection for such rights.’’ (Internal quotation marks omit-
ted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225
(1992). ‘‘In determining the contours of the protections
provided by our state constitution, we employ a
multifactor approach that we first adopted in Geisler.
The factors that we consider are (1) the text of the
relevant constitutional provisions; (2) related Connecti-
cut precedents; (3) persuasive federal precedents; (4)
persuasive precedents of other state courts; (5) histori-
cal insights into the intent of [the] constitutional [fram-
ers]; and (6) contemporary understandings of
applicable economic and sociological norms [otherwise
described as public policies].’’ (Internal quotation
marks omitted.) State v. Kelly, 313 Conn. 1, 14, 95 A.3d
1081 (2014); see also State v. Lockhart, 298 Conn. 537,
546–47, 4 A.3d 1176 (2010). We have noted, however,
that ‘‘these factors may be inextricably interwoven, and
not every [such] factor is relevant in all cases.’’4 (Internal
quotation marks omitted.) State v. Kelly, supra, 14–15.
At the outset, we recognize that two Geisler factors—
the first and the fifth—do not support the defendant’s
claim that the conduct at issue in the present case
violated her rights under article first, § 7, and indeed,
the defendant concedes as much. With respect to those
factors, this court recently explained: ‘‘[N]either the
text nor the history of article first, § 7, [of the state
constitution] provides any reason to depart from the
United States Supreme Court’s interpretation of the
federal constitution . . . . As we have previously held,
the text of article first, § 7, is similar to the text of the
fourth amendment.5 . . . Moreover, [w]ith respect
. . . to . . . the historical circumstances surrounding
the adoption of article first, § 7 . . . we have stated
that [t]he declaration of rights adopted in 1818 appears
to have its antecedents in the Mississippi constitution
of 1817, which in turn derived from the federal bill of
rights and the Virginia declaration of rights of 1776.
. . . The language of article first, § 7, which was based
upon the fourth amendment, was adopted with little
debate. . . . Thus, the circumstances surrounding the
adoption of article first, § 7, lend weight to the view that,
in most cases, a practice permitted under the fourth
amendment is permissible under article first, § 7.’’ (Cita-
tion omitted; footnote added; internal quotation marks
omitted.) State v. Williams, 311 Conn. 626, 634, 88 A.3d
534 (2014).
Furthermore, because Connecticut courts have not
yet considered whether article first, § 7, provides
greater protection than the federal constitution with
respect to recording telephone conversations with only
one party’s consent, the second Geisler factor also does
not support the defendant’s claim. See State v. Davis,
supra, 283 Conn. 310 (where issue was left unresolved
by prior Connecticut cases, second Geisler factor did
not support defendant’s claim). The cases on which
the defendant relies in support of her argument to the
contrary are inapposite in the present case. The defen-
dant cites cases that support the proposition that a
warrant is generally required when law enforcement
officials seek to search a place or object in which a
defendant has a reasonable expectation of privacy. See,
e.g., id., 311. The defendant also argues that the constitu-
tional preference for a warrant is only overcome in
specific and limited circumstances. See, e.g., State v.
Joyce, 229 Conn. 10, 24–25, 639 A.2d 1007 (1994); State
v. Miller, 227 Conn. 363, 382–85, 630 A.2d 1315 (1993).
These principles, however, do not enlighten our analysis
for determining whether a defendant has a reasonable
expectation of privacy in the object of the search, such
that a warrant would be required in the first instance.
See State v. Brown, 198 Conn. 348, 355, 503 A.2d 566
(1986) (‘‘Because the constitutional prohibition against
unreasonable searches and seizures affords protection
only against invasions of reasonable expectations of
privacy . . . our threshold inquiry is whether the
defendant in fact possessed a reasonable expectation
of privacy . . . . Absent such an expectation, the sub-
sequent police action has no constitutional ramifica-
tions.’’ [Citations omitted.]). Accordingly, we are not
persuaded by the defendant’s argument as to the second
Geisler factor.
Our resolution of this claim, then, is guided by our
analysis of the third, fourth and sixth prongs of Geisler.
Consequently, we next consider whether federal prece-
dent supports the defendant’s argument that recording
her telephone conversations with Becker’s consent vio-
lated her constitutional rights. Through a series of
cases, the United States Supreme Court has made it
apparent that the fourth amendment does not prohibit
such recordings. In Lee v. United States, 343 U.S. 747,
72 S. Ct. 967, 96 L. Ed. 1270 (1952), the court held that
it was not unconstitutional under the fourth amendment
for a ‘‘false friend’’; id., 757; i.e., an individual working
as an undercover agent for law enforcement, to enter
the defendant’s place of business and, while wired for
sound, engage the defendant in a conversation wherein
he made incriminating statements. Id., 749–51. The
court noted in that case that the defendant was simply
‘‘talking . . . indiscreetly with one he trusted,’’ and
that the fact that he was overheard by the use of a
wire had no constitutional ramifications because the
recording was ‘‘with the connivance of one of the par-
ties’’ to the conversation. Id., 753–54. This holding was
reaffirmed in subsequent cases. See, e.g., Hoffa v.
United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed.
2d 374 (1966) (fourth amendment does not protect ‘‘a
wrongdoer’s misplaced belief that a person to whom
he voluntarily confides his wrongdoing will not reveal
it’’); Lopez v. United States, 373 U.S. 427, 439, 83 S. Ct.
1381, 10 L. Ed. 2d 462 (1963) (permissible to record in
person conversations because defendant has no ‘‘con-
stitutional right to rely on possible flaws in the agent’s
memory, or to challenge the agent’s credibility without
being beset by corroborating evidence that is not sus-
ceptible of impeachment’’).
Although Lee, Hoffa, and Lopez all preceded the adop-
tion of the reasonable expectation of privacy test in
Katz, in United States v. White, 401 U.S. 745, 749–50,
91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971), a plurality of
the court concluded that the principles announced in
those cases were ‘‘left undisturbed by Katz.’’6 In White,
the court concluded that, although the defendant may
have had a subjective expectation of privacy in conver-
sations that were transmitted by a wire concealed on
a government informant, such an expectation was not
objectively reasonable, and, therefore, the defendant’s
fourth amendment claim failed on the second prong of
the Katz test. Id., 751–52. Pointing to its prior prece-
dents, the court explained: ‘‘If the law gives no protec-
tion to the wrongdoer whose trusted accomplice is or
becomes a police agent, neither should it protect him
when that same agent has recorded or transmitted the
conversations which are later offered in evidence to
prove the [s]tate’s case.’’ Id., 752. The court further
explained that ‘‘one contemplating illegal activities
must realize and risk that his companions may be
reporting to the police,’’ and that, in determining
whether to confide in or conspire with another person
regarding those illegal activities, it seemed unlikely that
a defendant ‘‘would distinguish between probable
informers on the one hand and probable informers with
transmitters on the other.’’ Id. Although White involved
the recording of in person conversations between a
defendant and an informant, the reasoning in White has
been uniformly applied in subsequent federal cases to
conclude that recording telephone conversations with
only one party’s consent, without a warrant, is also
permissible under the fourth amendment.7 See, e.g.,
United States v. Santillo, 507 F.2d 629, 635 (3d Cir.),
cert. denied sub nom. Buchert v. United States, 421
U.S. 968, 95 S. Ct. 1960, 44 L. Ed. 2d 457 (1975); United
States v. Bonanno, 487 F.2d 654, 658 (2d Cir. 1973);
Holmes v. Burr, 486 F.2d 55, 60 (9th Cir.), cert. denied,
414 U.S. 1116, 94 S. Ct. 850, 38 L. Ed. 2d 744 (1973).
Notwithstanding White, the defendant contends that
federal precedent supports her argument that recording
telephone conversations with the consent of only one
party violates her constitutional rights. She argues that
White should have little persuasive value in our analysis
because it was a plurality opinion which has been the
subject of academic criticism.8 We disagree. We first
note that the fact that academics have criticized the
rule in White does not mean that its precedential value
was altered. Moreover, the defendant’s argument
ignores that the plurality’s decision was the logical
extension of the court’s prior precedent, and that,
although the rule in White only garnered the support
of four justices at the time it was decided, the so-called
third-party consent rule in White has been cited approv-
ingly by a majority of the court in subsequent cases
and has been followed in every federal court of appeals.
See, e.g., United States v. Caceres, 440 U.S. 741, 744,
99 S. Ct. 1465, 59 L. Ed. 2d 733 (1979) (‘‘[n]either the
[c]onstitution nor any [a]ct of Congress requires that
official approval be secured before conversations are
overheard or recorded by [g]overnment agents with
the consent of one of the conversants’’).9 Thus, federal
cases considering reasonable expectations of privacy
under the fourth amendment strongly support the con-
clusion that it is not unconstitutional to record a tele-
phone conversation with only one party’s consent, and,
therefore, the third Geisler factor also does not support
the defendant’s claim.
With respect to the fourth Geisler factor, namely,
persuasive sister state precedents, an overwhelming
majority of states have concluded, in varying contexts,
that it is permissible under their state constitutions
for law enforcement officials to overhear or record
conversations without a warrant, if they have one par-
ty’s consent to do so.10 See, e.g., Commonwealth v.
Rekasie, 566 Pa. 85, 96, 778 A.2d 624 (2001) (‘‘A tele-
phone call received by or placed to another is readily
subject to numerous means of intrusion at the other
end of the call, all without the knowledge of the individ-
ual on the call. Extension telephones and speak-
erphones render it impossible for one to objectively
and reasonably expect that [a call] will be free from
intrusion.’’). Indeed, our research has revealed only one
state—Montana—that has found it unconstitutional to
record telephone conversations with only one party’s
consent.11 State v. Allen, 357 Mont. 495, 516, 241 P.3d
1045 (2010). That decision, however, was based in large
part on the court’s recognition that the Montana consti-
tution contains a provision that protects the ‘‘right of
individual privacy’’; id., 511; and that during the debates
of the 1972 state constitutional convention adopting
that provision, delegates specifically ‘‘decried elec-
tronic monitoring and eavesdropping in general’’ when
considering the adoption of that provision. Id., 514.
In support of her argument, the defendant also relies
on the decisions of six states that have held unconstitu-
tional the warrantless audio recording of face-to-face
conversations between the defendant and a police infor-
mant. See State v. Glass, 583 P.2d 872, 879 (Alaska
1978); Commonwealth v. Blood, 400 Mass. 61, 70, 507
N.E.2d 1029 (1987); State v. Goetz, 345 Mont. 421, 439,
191 P.3d 489 (2008); Commonwealth v. Brion, 539 Pa.
256, 257, 652 A.2d 287 (1994); State v. Blow, 157 Vt. 513,
519, 602 A.2d 552 (1991); State v. Mullens, 221 W. Va.
70, 91, 650 S.E.2d 169 (2007). She contends that these
cases support her position that it is unconstitutional to
record, without a warrant, a private telephone conversa-
tion with only one party’s consent because these cases
stand for the proposition that ‘‘it is perfectly reasonable
for individuals to expect that their private conversations
are not being electronically monitored . . . .’’ In all
but one of these cases, however, the court reached its
conclusion in large part because the conversations that
were recorded took place entirely within the confines
of the defendant’s home, and the court recognized that
activities occurring within the home have been given
the utmost constitutional protection. See, e.g., Com-
monwealth v. Brion, supra, 260 (‘‘[i]f nowhere else, an
individual must feel secure in his ability to hold a private
conversation within the four walls of his home’’).12
Moreover, three of those courts that concluded that it
is unconstitutional to record in person conversations
later distinguished that factual scenario from a situation
like the one at issue in the present case, where one
party to a telephone conversation consents to having
that conversation overheard or recorded by the police.
See Commonwealth v. Eason, 427 Mass. 595, 600, 694
N.E.2d 1264 (1998) (The court held that it was permissi-
ble under its state constitution for the police to overhear
conversations between the defendant and an informant
because the ‘‘defendant knew, when speaking on the
telephone, that his words were being transmitted elec-
tronically beyond his home. . . . [H]e had no reason
to assume that the conversation would not be heard by
a third party. A person cannot control the conditions
at the other end of a telephone conversation.’’); Com-
monwealth v. Rekasie, supra, 566 Pa. 97 (The expecta-
tion of privacy in a face-to-face conversation occurring
solely within the home is ‘‘[q]ualitatively different’’ than
a telephone call, where ‘‘an individual has no ability to
create an environment in which he or she can reason-
ably be assured that the conversation is not being
intruded upon by another party. On the telephone, one
is blind as to who is on the other end of the line.’’);
State v. Wetter, 190 Vt. 476, 483, 35 A.3d 962 (2011)
(‘‘[w]hile a person may have a reasonable expectation
that face-to-face conversations with another person in
his or her own home are not being broadcast outside
the home,’’ no reasonable expectation of privacy in
telephone conversation because individual has no
‘‘knowledge of the circumstances at the other end of
the conversation’’).13 Even assuming, without deciding,
that we agree with those courts that have found a rea-
sonable expectation of privacy in face-to-face conversa-
tions occurring within the home, we believe that there
is a logical distinction between those situations and the
one at issue in the present case. Thus, the fourth Geisler
factor also weighs strongly against expanding the reach
of article first, § 7, to protect those situations where
an individual who is voluntarily cooperating with law
enforcement officers consents to the recording of a
telephone conversation.
As for the final Geisler factor—public policy—the
defendant argues that our legislature has evinced a pol-
icy of intolerance for the surreptitious recording of
telephone conversations. We first note that the legisla-
ture has not made it a criminal offense to record a
private telephone conversation when one party to the
conversation consents to the recording. See General
Statutes § 53a-187 (a) (1) (defining ‘‘ ‘[w]iretapping’ ’’
as ‘‘the intentional overhearing or recording of a tele-
phonic . . . communication . . . by a person other
than a sender or receiver thereof, without the consent
of either the sender or receiver’’); General Statutes
§ 53a-188 (a) (2) (person is guilty of tampering with
private communication only where ‘‘he does not have
the consent of the sender or receiver’’). The legislature
has, however, created a civil cause of action against a
person who records a private telephone conversation
without the consent of all parties to the communication.
General Statutes § 52-570d (a) prohibits the use of ‘‘any
instrument, device or equipment to record an oral pri-
vate telephonic communication unless the use of such
instrument, device or equipment . . . is preceded by
consent of all parties to the communication,’’ or other
statutorily defined signals are provided that warn a
party to the communication that it is being recorded.
Although this statute does exhibit a policy concern for
privacy, we note that it also contains multiple, wide-
ranging exceptions, including that it does not apply to
‘‘[a]ny federal, state or local criminal law enforcement
official who in the lawful performance of his duties
records telephonic communications’’; General Statutes
§ 52-570d (b) (1); or to ‘‘[a]ny person who, as the recipi-
ent of a telephonic communication which conveys
threats of extortion, bodily harm or other unlawful
requests or demands, records such telephonic commu-
nication . . . .’’14 General Statutes § 52-570d (b) (3).
This statute, therefore, does not reflect a sweeping pol-
icy against recording all private telephone conversa-
tions as the defendant suggests, but rather
demonstrates that the legislature has carefully balanced
the concern for protecting citizens’ privacy against mul-
tiple other countervailing policy interests.15
In sum, the Geisler factors clearly counsel against
concluding that the defendant had an objectively rea-
sonable expectation of privacy in her telephone conver-
sations when Becker consented to having them
recorded. Although she may have had a subjective
expectation that their conversations would remain pri-
vate, the defendant’s repeated insistence that Becker
should not allow her family members to overhear their
conversations demonstrates that even the defendant
assumed that there was a reasonable possibility that
they could or would do so. Cf. State v. Wetter, supra,
190 Vt. 482 (defendant’s assertion that she could not
discuss certain topic on telephone ‘‘demonstrated [that]
she did not want to get caught speaking about the crime,
[but] also demonstrated that she did not expect the
telephone conversation to be private’’). Thus, we con-
clude that the defendant did not have a reasonable
expectation of privacy in the telephone conversations
recorded with Becker’s consent and, therefore, that the
recordings were not obtained in violation of article first,
§ 7, of the Connecticut constitution.
II
We next consider the defendant’s claim that she was
denied due process because the trial court failed to
conduct an inquiry, pursuant to Pate v. Robinson, supra,
383 U.S. 385, regarding her competence to stand trial.
The defendant contends that, even though defense
counsel repeatedly disavowed the need for a compe-
tency hearing and only requested a continuance of the
trial to allow the defendant to obtain medical treatment
for a chronic medical condition,16 there was sufficient
evidence before the court to require that it, sua sponte,
conduct an independent inquiry regarding the defen-
dant’s ability to understand the proceedings against her
or to assist in her defense. In support of this claim, the
defendant relies on various statements made by defense
counsel to the court before the trial began regarding
the defendant’s health. Those statements, broadly char-
acterized, indicated that the defendant suffered from a
chronic heart condition, that she experienced drowsi-
ness during jury selection, and that she is prescribed a
long list of medications to control her health problems.17
We find this claim wholly lacking merit.
It is well settled that ‘‘the due process clause of the
fourteenth amendment to the United States constitution
prohibits the criminal prosecution of a defendant who
is not competent to stand trial.’’ (Internal quotation
marks omitted.) State v. Dort, 315 Conn. 151, 162, 106
A.3d 277 (2014); see also Medina v. California, 505 U.S.
437, 439, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992).
A defendant is deemed incompetent if she lacks the
‘‘present ability to consult with [her] lawyer with a
reasonable degree of rational understanding’’ or if she
lacks ‘‘a rational as well as factual understanding of the
proceedings against [her].’’ (Internal quotation marks
omitted.) Drope v. Missouri, 420 U.S. 162, 172, 95 S.
Ct. 896, 43 L. Ed. 2d 103 (1975); see also General Statutes
§ 54-56d (a) (codifying constitutional mandate).18
Although all defendants are presumed to be competent,
in Pate, the United States Supreme Court held that due
process requires that a trial court conduct an ‘‘adequate
hearing’’ regarding a defendant’s competency, once her
competency ‘‘has been sufficiently called into question
. . . .’’ State v. Dort, supra, 162, citing Pate v. Robinson,
supra, 383 U.S. 386. A trial court has an independent
obligation to inquire, sua sponte, into a defendant’s
competency when there is sufficient evidence before
the court to raise a reasonable doubt as to whether the
defendant can understand the proceedings or assist in
her defense. See State v. Connor, 292 Conn. 483, 523,
973 A.2d 627 (2009); State v. DeAngelis, 200 Conn. 224,
242, 511 A.2d 310 (1986).
We begin by noting that it is only in rare cases that
a defendant’s physical disability would render her
incompetent to withstand trial. See, e.g., United States
v. Doran, 328 F. Supp. 1261, 1263–64 (S.D.N.Y. 1971)
(defendant unfit to stand trial when he appeared gravely
ill, there was substantial chance that trial may kill him,
and court noted that it was more than ten years since
alleged wrongs occurred); cf. United States v. Schaffer,
433 F.2d 928, 930 (5th Cir. 1970) (where fall left defen-
dant with some continuing back pain, trial judge prop-
erly permitted trial to proceed on basis that defendant
was competent to assist in his own defense). In the
present case, there is no evidence indicating how the
defendant’s physical ailments, such as her heart condi-
tion or the fact that she takes multiple prescription
medications for that condition or other undisclosed
conditions, would have rendered her incapable of
understanding the proceedings against her or assisting
in her defense. The defendant contends, however, that
a note from her primary care physician, which she pro-
vided to the court before trial in support of her unsuc-
cessful request for a continuance, indicated that,
because her heart condition was recently complicated
by an ‘‘acute illness,’’ she was unable to withstand a
trial for the following three to four weeks. That note,
however, was never made part of the record by the
defendant. Thus, to the extent the defendant relies on
it as evidence of her incompetency, the record is inade-
quate for our review. See, e.g., Finan v. Finan, 287
Conn. 491, 495, 949 A.2d 468 (2008) (‘‘[t]he purpose of
marking an exhibit for identification is to preserve it
as part of the record and to provide an appellate court
with a basis for review’’ [internal quotation marks omit-
ted]). Moreover, even assuming that the defendant accu-
rately represents the contents of that note, the
defendant’s inability to sit for trial for several weeks
would have no bearing on whether she was able to
understand the proceedings against her or assist in her
defense, but rather would be relevant only to whether
a continuance should have been ordered, a claim that
the defendant does not make on appeal.
With respect to the defendant’s alleged drowsiness
during jury selection, our research leads us to conclude
that such a condition does not render a defendant
incompetent to withstand trial. See Woods v. McBride,
430 F.3d 813, 819 (7th Cir. 2005) (‘‘there is a big differ-
ence between the sort of temporary incompetence
stemming from [the defendant’s medically] induced
drowsiness during voir dire and the sort that would
render [the defendant] incapable of standing trial alto-
gether’’), cert. denied, 549 U.S. 958, 127 S. Ct. 391, 166
L. Ed. 2d 279 (2006); Watts v. Singletary, 87 F.3d 1282,
1287 (11th Cir. 1996) (‘‘there is no constitutional prohi-
bition against the trial and conviction of a defendant
who fails to pay attention in court—whether out of
indifference, fear, confusion, boredom, or sleepiness—
unless that defendant also cannot understand the nature
of the proceedings against him or adequately assist
counsel in conducting a defense’’). The defendant
points to no authority to the contrary. Moreover,
although the trial court denied defense counsel’s
requests for a continuance, it did agree to provide her
with accommodations throughout the trial should a
health issue arise. Indeed, the record reflects that such
accommodations were provided when, for example,
defense counsel requested that the court end jury selec-
tion early because the defendant felt faint.
Thus, because there was no evidence before the trial
court indicating that the defendant could not under-
stand the proceedings against her or assist in her
defense, the court did not violate the defendant’s right
to due process by failing to conduct, sua sponte, an
independent inquiry regarding her competence.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER,
ESPINOSA and ROBINSON, Js., concurred.
1
We note that § 53a-122 was amended by the legislature in 2009 during
the events underlying the present case; see Public Acts 2009, No. 09-138,
§ 1; that amendment has no bearing on the merits of this appeal. We refer
to the current revision of the statute in this opinion.
2
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-2.
3
It is not clear whether the defendant’s due process claim is predicated
on the state or federal constitution, but, because she has not provided an
independent analysis of this issue under State v. Geisler, 222 Conn. 672,
684–86, 610 A.2d 1225 (1992), we deem abandoned any state constitutional
due process claim. See, e.g., Barros v. Barros, 309 Conn. 499, 507 n.9, 72
A.3d 367 (2013) (‘‘we will not entertain a state constitutional claim unless
the defendant has provided an independent analysis under the particular
provisions of the state constitution at issue’’ [internal quotation marks omit-
ted]). Accordingly, we analyze the defendant’s due process claim under the
federal constitution only.
4
Although Justice Zarella raises a concern in his concurring opinion
regarding this court’s application of the Geisler factors, because the parties
have not asked us to reconsider how we apply Geisler, we need not address
this issue.
5
The fourth amendment to the United States constitution provides in
relevant part: ‘‘The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated . . . .’’
6
Four justices agreed with this conclusion. United States v. White, supra,
401 U.S. 746. Justice Black concurred in the judgment, but adhered to his
position that Katz was wrongly decided. Id., 754.
7
Cf. Rathbun v. United States, 355 U.S. 107, 111, 78 S. Ct. 161, 2 L. Ed.
2d 134 (1957) (A telephone conversation that is overheard with one party’s
consent is not ‘‘interception’’ under the federal wiretap act because ‘‘[e]ach
party to a telephone conversation takes the risk that the other party may have
an extension telephone and may allow another to overhear the conversation.
When such takes place there has been no violation of any privacy of which
the parties may complain.’’).
8
See, e.g., G. Ashdown, ‘‘The Fourth Amendment and the ‘Legitimate
Expectation of Privacy,’ ’’ 34 Vand. L. Rev. 1289, 1311 (1981) (arguing that
reasoning in White is flawed because privacy expectations are altered consid-
erably when conversations are electronically transmitted, and that, even
if one may reasonably expect that remarks ‘‘will [not] remain absolutely
confidential, it is unlikely that he appreciates the risk of their disclosure to
the government’’); S. Brenner & L. Clarke, ‘‘Fourth Amendment Protection
for Shared Privacy Rights in Stored Transactional Data,’’ 14 J.L. & Policy
211, 215 (2006) (arguing that third-party consent doctrine should not allow
government to ‘‘reap a windfall’’ in technology age where, perhaps unknow-
ingly, significant amount of private data is disclosed to third parties); A.
Loewy, ‘‘The Fourth Amendment as a Device for Protecting the Innocent,’’
81 Mich. L. Rev. 1229, 1256–63 (1983) (arguing that third-party consent
doctrine inappropriately focuses on rights of guilty, rather than innocent,
persons).
9
See also United States v. Jacobsen, 466 U.S. 109, 122–23, 104 S. Ct. 1652,
80 L. Ed. 2d 85 (1984); United States v. Jones, 533 Fed. Appx. 562, 571 (6th
Cir.), cert. denied, U.S. , 134 S. Ct. 834, 187 L. Ed. 2d 693 (2013);
United States v. Novak, 531 F.3d 99, 101 (1st Cir. 2008); United States v.
Brathwaite, 458 F.3d 376, 380 (5th Cir. 2006); United States v. Corona-
Chavez, 328 F.3d 974, 978 (8th Cir. 2003); United States v. Longoria, 177
F.3d 1179, 1183–84 (10th Cir. 1999); In re Askin, 47 F.3d 100, 104–105 (4th
Cir.), cert. denied, 516 U.S. 944, 116 S. Ct. 382, 133 L. Ed. 2d 305 (1995);
United States v. Smith, 918 F.2d 1551, 1558 (11th Cir. 1990); United States
v. Chiavola, 744 F.2d 1271, 1275 (7th Cir. 1984); United States v. Scios, 590
F.2d 956, 991 n.73 (D.C. Cir. 1978); United States v. Santillo, supra, 507 F.2d
635; United States v. Bonanno, supra, 487 F.2d 658; Holmes v. Burr, supra,
486 F.2d 60; see also People v. Collins, 438 Mich. 8, 24, 475 N.W.2d 684
(1991) (noting that United States Supreme Court’s decision in United States
v. Caceres, supra, 440 U.S. 741, ‘‘made crystal clear’’ that fourth amendment
to federal constitution does not require warrant to record telephone conver-
sation with informant’s consent).
10
Multiple courts have reached this conclusion specifically in the context
of police recording of telephone conversations. See, e.g., People v. Strozzi,
712 P.2d 1100, 1102–1103 (Colo. App. 1985), cert. denied, 476 U.S. 1105, 106
S. Ct. 1950, 90 L. Ed. 2d 359 (1986); State v. Graham, 70 Haw. 627, 638–40,
780 P.2d 1103 (1989); People v. Shinkle, 128 Ill. 2d 480, 486, 539 N.E.2d 1238
(1989); Carrier v. Commonwealth, 607 S.W.2d 115, 117 (Ky. App. 1980);
People v. Collins, 438 Mich. 8, 40, 475 N.W.2d 684 (1991); State v. Geraldo,
68 Ohio St. 2d 120, 126, 429 N.E.2d 141 (1981), cert. denied, 456 U.S. 962,
102 S. Ct. 2038, 72 L. Ed. 2d 486 (1982); Commonwealth v. Rekasie, 566 Pa.
85, 98–99, 778 A.2d 624 (2001); State v. Ahmadjian, 438 A.2d 1070, 1081–82
(R.I. 1981); State v. Andrews, 324 S.C. 516, 520, 479 S.E.2d 808 (App. 1996);
State v. Corliss, 123 Wash. 2d 656, 663–64, 870 P.2d 317 (1994); Blackburn v.
State, 170 W. Va. 96, 105, 290 S.E.2d 22 (1982); see also Commonwealth v.
Eason, 427 Mass. 595, 600, 694 N.E.2d 1264 (1998) (no violation to eavesdrop
on telephone conversation with one party’s consent); State v. Wetter, 190
Vt. 476, 483, 35 A.3d 962 (2011) (same). Although Eason and Wetter involved
situations in which police eavesdropped on, rather than recorded, telephone
conversations, we find these cases equally persuasive, and, indeed, at oral
argument before this court, counsel for the defendant agreed that a defen-
dant’s expectation of privacy is the same regardless of whether the police
merely overhear, but do not record, a telephone conversation. Furthermore,
because the defendant relies on cases involving the police recording of in
person conversations, we also note that multiple other courts, using the
reasoning in White, have not found those situations where the police fit an
informant with a body wire to overhear the contents of such a conversation
to be unconstitutional. See, e.g., Smithey v. State, 269 Ark. 538, 544, 602
S.W.2d 676 (1980); Lawhorn v. State, 452 N.E.2d 915, 918–19 (Ind. 1983);
Lee v. State, 489 So. 2d 1382, 1386 (Miss. 1986); State v. Engleman, 634
S.W.2d 466, 477 (Mo. 1982); State v. Kilgus, 128 N.H. 577, 591, 519 A.2d 231
(1986); People v. McGee, 49 N.Y.2d 48, 61, 399 N.E.2d 1177, 424 N.Y.S.2d 157
(1979) (Meyer, J., concurring), cert. denied sub nom. Waters v. New York,
446 U.S. 942, 100 S. Ct. 2166, 2167, 64 L. Ed. 2d 797 (1980); State v. Levan,
326 N.C. 155, 172, 388 S.E.2d 429 (1990); State v. Loh, 780 N.W.2d 719, 724
(N.D. 2010); State v. Sanders, 452 S.W.3d 300, 315 (Tenn. 2014); State v.
Boone, 581 P.2d 571, 573 (Utah 1978); Almada v. State, 994 P.2d 299, 311
(Wyo. 1999).
11
Although the defendant contends that ‘‘[o]ver a dozen state [s]upreme
[c]ourts have rejected the [third-party consent] doctrine’’ under their state
constitutions, in support of that proposition, she cites to a law review article
that examined the third-party consent doctrine more broadly. See O. Kerr,
‘‘The Case for the Third-Party Doctrine,’’ 107 Mich. L. Rev. 561, 564 (2009);
id., 564 n.11, citing S. Henderson, ‘‘Learning from All Fifty States: How To
Apply the Fourth Amendment and Its State Analogs To Protect Third Party
Information from Unreasonable Search,’’ 55 Cath. U. L. Rev. 373 (2006).
Henderson’s article notes that several states have held various police actions
unconstitutional, including, inter alia, the installation of a pen register, the
search of garbage left for collection, and the search of bank records. S.
Henderson, supra, 396–405. We are not persuaded that decisions of our
sister states addressing these different factual circumstances should alter
our analysis in the present case.
12
See also State v. Glass, supra, 583 P.2d 881 n.35 (‘‘[w]e have previously
recognized the high degree of protection surrounding the home’’); Common-
wealth v. Blood, supra, 400 Mass. 70 (‘‘it is objectively reasonable to expect
that conversational interchange in a private home will not be invaded
surreptitiously by warrantless electronic transmission or recording’’ [empha-
sis added]); State v. Blow, supra, 157 Vt. 518 (one ‘‘deeply-rooted legal
and societal principle [is] that the coveted privacy of the home should be
especially protected’’); State v. Mullens, supra, 221 W. Va. 90 (‘‘[A]ctivities
which take place within the sanctity of the home merit the most exacting
[constitutional] protection. . . . For this reason, the jurisprudence of this
[c]ourt . . . has drawn a firm line at the entrance to the house.’’ [Citations
omitted; internal quotation marks omitted.]); but see State v. Goetz, supra,
345 Mont. 433 (impermissible under state constitutional provision protecting
right to privacy to record conversations occurring in home and vehicle).
13
We also note that, in Mullens, the Supreme Court of Appeals of West
Virginia explicitly limited its holding to those cases in which the police send
an informant into a defendant’s home to record communications therein.
State v. Mullens, supra, 221 W. Va. 91. That court had earlier concluded that
the warrantless electronic recording of a defendant’s telephone conversation
with the consent of a participant of the conversation did not violate the
state constitution. Blackburn v. State, 170 W. Va. 96, 105, 290 S.E.2d 22 (1982).
14
We note that the defendant does not argue that § 52-570d (a) was in
fact violated when her calls with Becker were recorded. While we need not
decide that issue in the present case, it may well be that the recordings in
this case fall within the exception for recording a conversation ‘‘which
conveys threats of extortion . . . or other unlawful requests or demands,’’
as the state claims, or another exception to the statute. To the extent that
the conduct at issue in this case would satisfy one of the statutory exceptions,
the defendant certainly could not claim that she had a reasonable expectation
of privacy in her conversations with Becker on the basis of this statute alone.
15
The defendant also relies on statutes from multiple other states which
prohibit, in certain circumstances, recording telephone conversations. We
are not persuaded that those statutes should alter our analysis because,
first, they do not represent Connecticut public policy, and, second, those
statutes do not all support the defendant’s contention that there is such a
broad policy against recording private conversations. Notably, many of the
statutes on which the defendant relies simply adopt the Katz reasonable
expectation of privacy test; see, e.g., Flanagan v. Flanagan, 27 Cal. 4th 766,
777, 41 P.3d 575, 117 Cal. Rptr. 2d 574 (2002) (statute prohibiting recording
of confidential communications absent consent of all parties only applies
where one ‘‘has an objectively reasonable expectation that the conversation
is not being overheard or recorded’’); or contain multiple exceptions to the
prohibition on recording conversations with only one party’s consent. See,
e.g., Wn. Rev. Code § 9.73.030 (2) (2014) (permissible to record, with one
party’s consent, telephone conversations ‘‘[a] of an emergency nature . . .
[b] which convey threats of extortion, blackmail, bodily harm, or other
unlawful requests or demands . . . [c] which occur anonymously or repeat-
edly or at an extremely inconvenient hour, or [d] which relate to communica-
tions by a hostage holder or barricaded person’’).
16
We note that the state does not argue that the defendant waived this
claim. Indeed, the United States Supreme Court has explained that ‘‘it is
contradictory to argue that a defendant may be incompetent, and yet know-
ingly or intelligently ‘waive’ his right to have the court determine his capacity
to stand trial.’’ Pate v. Robinson, supra, 383 U.S. 384. The court has also
noted, however, that ‘‘judges must depend to some extent on counsel to
bring issues into focus,’’ and that an inartfully drawn motion for continuance
may not provide the appropriate assistance to the trial court in determining
whether an inquiry into the defendant’s competence is necessary. Drope v.
Missouri, 420 U.S. 162, 176–77, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). Thus,
although defense counsel’s disclaimer of any competency issues would not
preclude review of a claim that the trial court abused its discretion by failing
to conduct an independent inquiry on that matter, such assertions would
be relevant to deciding the merits of that issue.
17
The defendant also relies on defense counsel’s allegations that the defen-
dant was confined to a wheelchair, had to wear a neck brace, that her hand
was twitching at times after she discontinued certain medications in an
effort to avoid drowsiness, and that she ‘‘look[ed] unhealthy.’’ Because these
allegations in no way relate to the defendant’s competence, they merit
no response.
18
The defendant, somewhat contradictorily, asserts that defense counsel
requested a competency evaluation pursuant to § 54-56d but ‘‘did not specifi-
cally demand that the trial court conduct a Pate inquiry.’’ Because § 54-56d
codifies the due process standard required by Pate v. Robinson, supra, 383
U.S. 378, the request for one is a request for the other. See State v. Ross,
269 Conn. 213, 270–71, 849 A.2d 648 (2004). In any event, the defendant’s
assertion that defense counsel requested a § 54-56d evaluation is a gross
misrepresentation of the record. Although the record reflects that defense
counsel for John Skok requested a competency evaluation, the record is
absent of any indication that one was requested for the defendant. Rather,
counsel for the defendant repeatedly eschewed the notion that the defendant
needed such an evaluation.