State v. Betts

• Decision Date: 18 March 2008
• Docket Number: No. 17994.,17994.
• Citation: 286 Conn. 88,942 A.2d 364
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. William BETTS.

942 A.2d 364

286 Conn. 88

STATE of Connecticut v. William BETTS.

No. 17994.

Supreme Court of Connecticut.

Argued January 4, 2008.

Decided March 18, 2008.

Carlos E. Candal, special assistant public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Gail Hardy, state's attorney, and Anne Mahoney, senior assistant state's attorney, for the appellee (state).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and SCHALLER, Js.

NORCOTT, J.

The dispositive issue in this appeal is whether the victim's mother was an agent of the police for purposes of the fourth amendment to the United States constitution,¹ and article first, § 7, of the state constitution,² when, after telling police officers about an incriminating letter authored by the defendant, she retrieved that letter at their request from the bedroom that she shared with him. The defendant, William Betts, appeals³ from the judgment of conviction, rendered after a jury trial, of three counts of the crime of risk of injury to a child in violation of General Statutes § 53-21, and one count each of the crimes of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(A), assault in the third degree in violation of General Statutes § 53a-61, unlawful restraint in the first degree in violation of General Statutes § 53a-95, and interfering with an emergency call in violation of General Statutes § 53a-183b. On appeal, the defendant claims, inter alia, that the trial court improperly denied his motion to suppress evidence of an incriminating letter that he had written to the victim because the police had seized it from his bedroom without his consent or a warrant. We affirm the judgment of the trial court.

The record reveals the following procedural history and relevant facts that the jury reasonably could have found. On February 29, 2004, A.L.,⁴ the thirteen year old victim, visited the home of T.H., her mother, as she did typically once every other week. During that visit, A.L. and the defendant, who was T.H.'s fiance', watched television together in the living room while T.H. slept in a downstairs bedroom that she shared with the defendant. A.L., who initially was sitting on the floor, then moved to lay down on the couch, at which time the defendant put his hand in her shirt and touched her breasts before moving his hand down to rub her "privates" with his right hand. A.L. told the defendant to stop touching her or else she would kick him, and then started to bang on the floor to wake T.H. The defendant stopped briefly, but then lay on top of A.L. and continued to touch her and grab her breasts with even more force.

At that time, T.H. entered the room, witnessed the defendant lying on top of A.L., and began to yell at both of them; T.H. then ran downstairs intending to call the police. Thereafter, an argument ensued between T.H. and the defendant, at which point he called A.L. into the room and asked her to say that nothing had happened between them. A.L. complied with the defendant's request and then left the room, at which point T.H. and the defendant started arguing again about who was lying. At that point, A.L., who had overheard the conversation, became angry, returned to the room and told the defendant to tell T.H. the truth. A.L. then told T.H. that the defendant had "rap[ed]" and "sexually harass[ed]" her.⁵

T.H. then went back down to the bedroom to call the police. The defendant followed her downstairs and began to choke, beat and spit on her. A.L. also tried to call the police, but was unable to do so because the telephone in the room was disconnected. The defendant then stopped choking T.H., and she left the bedroom. At this time, A.L. gave T.H. a letter that the defendant had written expressing his sexual desire for A.L.⁶ The defendant then took the letter and hid it in the bedroom that T.H. and the defendant shared before T.H. could read it.

Thereafter, the police arrived at the house, and T.H. then gave the letter to Robin Gibson, a Manchester police officer who had responded to her call for help.⁷ Subsequently, the defendant was arrested and charged with numerous counts of risk of injury to a child, sexual assault in the third degree, assault in the third degree, unlawful restraint in the first degree and interfering with an emergency call.⁸ After hearing the trial testimony of A.L., T.H. and Gibson, the trial court denied the defendant's motion to suppress the letter from him to A.L. Thereafter, the trial court rendered a judgment of conviction in accordance with the jury's verdict of guilty on all counts of the information except for three and four. See footnote 8 of this opinion. The trial court sentenced the defendant to a total effective sentence of forty-three years imprisonment, suspended after twenty-three years, followed by thirty-five years of probation. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his motion to suppress the letter that he had written to A.L. expressing his sexual desire for her.⁹ The defendant argues that the trial court improperly determined that T.H. was not an agent of the police when she went to the bedroom that she shared with the defendant and retrieved the letter for them. The defendant contends that the actions of the police, through T.H., constituted a search and seizure that violated the federal and state constitutions because it was performed without his consent or a warrant. The state argues in response that the trial court's decision is supported by substantial evidence in the record, and also contends that the admission of the letter was proper under the inevitable discovery doctrine.¹⁰ We conclude that T.H.'s search of the bedroom did not implicate federal or state constitutional protections because the trial court properly determined that she was not an agent of the police when she retrieved the letter.

The record reveals the following additional relevant facts, which were articulated by the trial court in response to the defendant's motion for articulation pursuant to Practice Book §§ 64-1 and 66-5. The trial court found that it was undisputed that the letter belonged to A.L., who had turned it over to T.H. Noting that the jury had convicted the defendant of assault, the trial court then stated that he then took the letter from T.H. by force and "hid it in the marital bedroom." The trial court then stated that T.H. searched for the letter and found it between the mattresses in the bedroom, after which she took it and turned it over to Gibson.¹¹ The trial court then reiterated its decision, made at trial, that, "under the totality of [the] circumstances ... [T.H.] was acting as a private agent and ... any government action was merely incidental and not instrumental in the search and seizure of the letter."

The trial court acknowledged that T.H. had testified during cross-examination that Gibson had instructed her to "`go into the bedroom and see if I can find [the letter], and I found it,'"¹² but found that this statement was not inconsistent "with the conclusion she was acting on her own" because it was T.H. and A.L. who brought up "the letter's existence [and] importance, and [T.H.], not the police, searches and seizes it and gives it to the police without any further requests." The trial court further noted that the police had not coerced or supervised T.H.'s conduct in any way, and credited Gibson's testimony that T.H. had acted on her own because she and A.L. wanted the police to know about the letter from the defendant.¹³

Our review of the trial court's determination about whether a private individual acted as an agent of the police, despite its "constitutional context, is primarily a question of fact ... 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."¹⁴ (Citations omitted internal quotation marks omitted.) State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985); accord State v. Swinton, 268 Conn. 781, 855, 847 A.2d 921 (2004) (same inquiry and standard of review in sixth amendment context).

"As we have noted, a wrongful search or seizure conducted by a private party does not violate the [f]ourth [a]mendment and ... such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully.... A private citizen's actions may be considered state action, however, if he acts as an instrument or agent of the state.... Although there is no bright line test for determining when a private citizen is acting as an agent of the police, we have stated that the existence of an agency relationship ... 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 ... whether the police have asked the informant to obtain incriminating evidence and placed him in a position to receive it ... and whether the information is secured as part of a government initiated, preexisting plan." (Citations omitted; internal quotation marks omitted.) State v. Lasaga, 269 Conn. 454, 463-64, 848 A.2d 1149 (2004), citing, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Alexander, supra, 197 Conn. at 184-85, 496 A.2d 486.

This well established inquiry is consistent with Professor Wayne R. LaFave's observation that, "[when] police have been called to the scene and are thus present while a private...