State v. Mortoro

• Decision Date: 03 February 1971
• Citation: 279 A.2d 546,160 Conn. 378
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ort MORTORO.

Page 546

279 A.2d 546

160 Conn. 378

STATE of Connecticut v. Ort MORTORO.

Supreme Court of Connecticut.

Feb. 3, 1971.

Richard R. Stewart, Hartford, for appellant (defendant).

Edmund W. O'Brien, State's Atty., for appellee (state).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

ALCORN, Chief Justice.

The defendant, Ort Mortoro, was convicted by a jury of the crime of being an accessory to an attempted sale of narcotic drugs. In this appeal from the judgment rendered on the verdict the defendant contends that the court erred in denying his motion for a separate trial, in denying his motion to set aside the verdict, in admitting evidence obtained by an electronic listening device and a tape recording, and in admitting prejudicial evidence.

We find the determinative issue in this case to be the prejudicial effect of one of the recordings which were admitted in evidence. However, in view of the new trial which must be ordered, we find it necessary to consider the rulings on evidence which were attacked on the ground that they violated the defendant's rights under the fourth amendment to the constitution of the United States. That question is distinct from the attack made on one recording on the ground of prejudice.

The defendant claims that the introduction into evidence of two tape recordings and the testimony of a police officer relating to conversations between the defendant and a police informer were a violation of his rights under the fourth amendment to the constitution of the United States.

The state claimed to have proved that an individual, whom we will refer to as the informer, had sold several cases of stolen liquor to the defendant in March or April, 1967. At that time, the defendant asked the informer if he knew of anyone who would be interested in acquiring a quantity of narcotics and took the informer to the home of Joseph Harb, where narcotics were displayed and the sale price was discussed. The informer told the defendant that he would get in touch with him if he found anyone interested. In August, 1967, while confined in the Montville Correctional Center, the informer sent for a county detective and told him of the narcotics which he had seen under the circumstances described.

In March, 1968, the informer telephoned to the defendant and, with the informer's consent, the call was monitored by a county detective and a tape recording of it was made. In the conversation the informer asked the defendant whether Harb still had the narcotics and the defendant said he did not know but that he would find out and asked the informer to call him the next day. On April 2, 1968, the informer went to the defendant's place of business and at that time he had a tape recorder concealed under his coat. At this meeting there was a further conversation relative to whether Harb still had narcotics on hand.

During the trial, the county detective who had listened in on the March telephone call was permitted, over the defendant's objection, to relate the conversation which he had overheard between the informer and the defendant. Later, the defendant was asked, on cross-examination, for his version of the March telephone conversation and, to contradict his version, the tape recording of the conversation was played and a transcription of it was read to the jury over the defendant's objection. During the same cross-examination the defendant denied having any conversation with the informer regarding narcotics and the state offered the tape recording of the April 2 conversation and a transcription of it, both of which were admitted into evidence over the defendant's objection. Both recordings were offered for the purpose of attacking the defendant's credibility.

In this appeal the defendant claims that the county detective's recital of the overheard telephone conversation, the recording of that conversation, the recording of the April 2 conversation, and the transcriptions thereof were inadmissible. Thus, we are confronted with (1) the testimony by a witness for the state concerning a telephone conversation overheard with the consent of one of the parties to the conversation, (2) the admission into evidence of a recording of that conversation in order to attack the defendant's version of the conversation which he did not know was overheard, and (3) the admission into evidence of a recording of a conversation with the defendant, made by a device carried by a consenting informer without the knowledge of the defendant and used to attack the defendant's credibility. We are satisfied that the admission of this evidence, in each instance, did not violate the defendant's fourth amendment rights.

In On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, the Supreme Court sustained a conviction which had been attacked on fourth amendment grounds. The conviction was based on the testimony of a federal agent concerning a conversation between the accused and an undercover agent transmitted by an electronic device concealed on the person of the undercover agent to a receiving device over which the federal agent listened. The court said (pp. 753-54, 72 S.Ct. p. 972): 'The presence of a radio set is not sufficient to suggest more than the most attenuated analogy to wiretapping. Petitioner was talking confidentially and indiscreetly with one he trusted, and he was overheard. This was due to aid from a transmitter and receiver, to be sure, but with the same effect on his privacy as if agent Lee had been eavesdropping outside an open window.'

In Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, the Supreme Court upheld a conviction for attempted bribery of an internal revenue agent based on the testimony of an undercover federal agent concerning conversations which he had with the accused and the recording of one of the conversations made by a pocket wire recorder which he carried and which was introduced to corroborate his testimony. The court said (p. 438, 83 S.Ct. p. 1387): 'Once it is plain that Davis could properly testify about his conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective.'

Fourth amendment rights were again relied on in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374. In that case, however, the Supreme Court upheld a conviction for jury tampering based on the testimony of a government informer who had gained access to the accused's hotel room by deception and testified to coversations which he had overheard. The court found no fourth amendment rights violated. See also Lee v. Florida, 392 U.S. 378, 381, 88 S.Ct. 2096, 20 L.Ed.2d 1166; Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394; Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312; Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134.

On its facts, Lopez is directly in point as authority for the proposition that the recording of the April 2 conversation was admissible. On Lee, Lopez and Hoffa establish the principle that the fourth amendment does not protect against the risk that the party with whom a defendant converses will not repeat, transmit or record the conversation, or allow it to be recorded. Applying this principle to the present case, the monitoring and recording of the telephone conversation was permissible and the recording was admissible.

The defendant claims, in effect, that the aforementioned cases are no longer good law. In support of his position he relies mainly on the interpretation which the United States Circuit Court of Appeals for the Seventh Circuit has given in United States v. White, 405 F.2d 838, to the decision of the United States Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. The White case is pending on appeal to the Supreme Court (certiorari granted, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559) so that we may expect, in due course, a conclusive answer to the question with which, in the interim, we are presented by the present appeal.

In Katz v. United States, supra, the Supreme Court reversed a conviction based on evidence of the petitioner's telephone conversations which were overheard by the FBI agents by means of an electronic listening and recording device which they had, without the knowledge of any of the parties to the conversation, attached to the public telephone booth from which he had made his calls. In United States v. White, supra, the Seventh Circuit, by a divided court, concluded that the Katz decision required a holding that, in the absence of a search warrant or court authorization, eavesdropping by a federal agent on a conversation between an informer equipped with an electronic transmitter and the defendant who was unaware of the eavesdropping was a violation of the defendant's fourth amendment rights.

In United States v. Kaufer, 406 F.2d 550, aff'd, 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414, our own Second Circuit has reached an opposite result and expressly repudiated the interpretation of Katz made by the Seventh Circuit in White. The Kaufer case involved recordings of conversations by electronic devices and the use of an extension telephone. Internal revenue agents who listened in on the conversations testified about them and a tape recording of one of the conversations was admitted into evidence. The court said (p. 551): 'A recording here, as distinguished from that in Katz, merely serves to preserve the consenting participant's recollection.' Of the same tenor is United States v. Polansky, 418 F.2d 444, 447 (2d Cir.).

The Circuit Court of Appeals for the Fourth Circuit has also disagreed with the White decision in United States v. DeVore, 423 F.2d 1069, saying (p. 1074): 'Since the participants in a conversation are privileged to tell what was said, it necessarily must follow that a recording of what was said may either be used to corroborate the revelation,...