State v. Alexander

• Decision Date: 06 August 1985
• Citation: 197 Conn. 180,496 A.2d 486
• Parties: STATE of Connecticut v. Wayne B. ALEXANDER.
• Court: Connecticut Supreme Court

Page 486

496 A.2d 486

197 Conn. 180

STATE of Connecticut v. Wayne B. ALEXANDER.

Supreme Court of Connecticut.

Argued June 12, 1985.

Decided Aug. 6, 1985.

Jean E. Blue, Sp. Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Susan C. Marks, Sp. Asst. State's Atty., with whom, on the brief, were Harry S. Gaucher, Jr., State's Atty., and John M. Massameno, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

PETERS, Chief Justice.

The principal issue in this case is whether a private citizen was acting as an agent of the police when he engaged the defendant in conversations in the course of which the defendant made incriminatory statements. The defendant, Wayne B. Alexander, was charged by indictment with having committed the crime of murder in violation of General Statutes § 53a-54a. A jury found the defendant guilty as charged and the trial court rendered judgment in accordance with the jury verdict. The defendant appeals from the judgment of conviction.

The jury could reasonably have found the following facts. The victim, Vern Alan Cook, and the defendant were scheduled to appear in court at Rockville in January of 1979 to answer to criminal charges of larceny in the third degree. In the early morning of the date on which they were to appear, the courthouse was seriously damaged by fire, and their court appearances were continued to February 6, 1979. On February 5, 1979, the victim made arrangements with his mother for a ride to court on the following day, but he failed to meet his mother as planned, and never appeared in court.

The defendant admitted to the police, on March 9, 1979, that he had set the Rockville courthouse fire and he implicated the victim as his accomplice in the arson. As a consequence of these admissions, he was arrested and incarcerated at the Hartford correctional center. At his own request, he was there visited on several occasions by James Papagolas, who had befriended both the defendant and the victim. On March 19, 1979, the defendant acknowledged to Papagolas that he had killed the victim. Papagolas immediately informed the police about his conversation with the defendant. In part because Papagolas' driver's license had been suspended and his car was out of order, the police thereafter drove Papagolas to the correctional center whenever he paid further visits to the defendant. On March 29, 1979, the defendant told Papagolas where the victim's body had been buried. Papagolas led the police to the wooded area that the defendant had described, where they found the body.

The defendant raises two issues in his appeal from his conviction for murder. He claims that the trial court erred: (1) in refusing to suppress the testimony of James Papagolas concerning the incriminatory statements made to him by the defendant; (2) in refusing to dismiss the grand jury indictment against him.

I

In the defendant's challenge to the admissibility of testimony concerning his incriminating statements, the defendant relies upon his constitutional rights under the fifth and sixth amendments to the United States constitution. He maintains that he was unconstitutionally interrogated in violation of his privilege against self-incrimination under the fifth amendment because he did not receive the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-31, 16 L.Ed.2d 694 (1966), before he made the statements to Papagolas. Alternatively, he argues that he was unconstitutionally interrogated in violation of his rights under the sixth amendment because his conversations with Papagolas took place in the absence of his counsel, in contravention of the rule of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). ¹ As the defendant concedes, however, a necessary predicate to both constitutional claims is a determination that the incriminating statements to Papagolas that the defendant seeks to suppress were in fact elicited from the defendant as a result of interrogation by Papagolas acting as a police officer or as an agent of the police. See United States v. Henry, 447 U.S. 264, 269-70, 100 S.Ct. 2183, 2186-87, 65 L.Ed.2d 115 (1980) (sixth amendment); State v. Zeko, 176 Conn. 421, 424, 407 A.2d 1022 (1979) (fifth amendment). ² In order to prevail on these claims, therefore, the defendant must persuade us that the trial court erred in its conclusion, after a suppression hearing, ³ that "[t]he incriminating statements challenged were made by the defendant to a private citizen, not a 'police agent or informer.' " We are unpersuaded and accordingly find no error.

There is no bright line test for determining when a private citizen is acting as an agent of the police. Thomas v. Cox, 708 F.2d 132, 136 (4th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). Courts in various jurisdictions considering the question of agency, primarily in the context of a claimed right to counsel under the sixth amendment, have sought guidance from the United States Supreme Court's opinion in United States v. Henry, supra. In Henry, the court held that the government had "deliberately elicited" incriminating statements from an incarcerated defendant in violation of his sixth amendment right to counsel when it placed a paid undercover informant in close proximity to the defendant. United States v. Henry, supra, 447 U.S., 270, 276, 100 S.Ct. 2186, 2189. Although Henry did not specifically address the question of agency, the court's opinion identified some of the basic characteristics of the agency relationship. "In Henry, the Court 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 procurement of possibly incriminating information from Henry. Also important to the Henry Court was the fact that the informant's mission was on a 'contingent-fee' basis, Henry, 447 U.S. at 270, 100 S.Ct. at 2187, thereby demonstrating a formal 'prearrangement,' id. at 273, 100 S.Ct. at 2188, between state and informant.... From these circumstances the Court in Henry was able to characterize the informant as a 'Government agent expressly commissioned to secure evidence,' id. at 273, 100 S.Ct. at 2188, from the accused." Thomas v. Cox, supra, 135.

The existence of an agency relationship thus turns upon 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-motivated; see Thomas v. Cox, supra, 135; Lightbourne v. State, 438 So.2d 380, 386 (Fla.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); whether the police have asked the informant to obtain incriminating evidence and placed him in a position to receive it; see United States v. Brown, 466 F.2d 493, 495 (10th Cir.1972); People v. Odierno, 121 Misc.2d 330, 334, 467 N.Y.S.2d 968 (1983); and whether the information is secured as part of a government initiated, pre-existing plan. See United States v. Panza, 750 F.2d 1141, 1152 (2d Cir.1984); Thomas v. Cox, supra, 136.

The issue of agency, even in a constitutional context, is primarily a question of fact; see Thomas v. Cox, supra, 135; State v. Brooks, 38 Wash.App. 256, 261-62, 684 P.2d 1371 (1984); cf. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982); and ordinarily we defer to factual findings made by the trial court. When, however, a defendant raises a question of this nature that is vitally affected by trial court factfinding, in a setting in which 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 substantial evidence. State v. Frazier, [185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982) ]." State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S.Ct. 1785, 76 L.Ed.2d 354 (1983); cf. State v. Ostroski, supra, 186 Conn., 291-92, 440 A.2d 984.

Examination of the record before us in this case reveals that there was substantial evidence for the trial court's conclusion that Papagolas was not acting as an agent of the state in his conversations with the defendant. Although the police may have supported and even encouraged Papagolas' efforts to obtain information from the defendant, their involvement was not so extensive as to create an agency relationship.

The police did not seek out Papagolas and were not involved in his initial decision to visit the defendant. Rather, Officers John Jacewicz and John Rearick first encountered Papagolas by chance on March 14, 1979, as he was cleaning out the defendant's car. Papagolas informed the police that he was visiting the defendant at the defendant's request, had seen the defendant earlier that day and would be visiting him again. The three discussed the disappearance of Vern Cook and Papagolas agreed to contact the police if he heard anything about the victim. A similar conversation occurred at a meeting arranged by Papagolas on March 16, 1979. Without notifying the police, Papagolas again visited the defendant on March 19, 1979. He asked the defendant whether he had killed Cook and the defendant answered in the affirmative. At the time he elicited this confession, Papagolas had had only minimal contact with the police and it is clear that he was acting by himself and on his own initiative. The police had simply asked him to let them know if he heard anything; that request alone did not create an agency relationship. See Thomas v. Cox, ...