State v. Wetter

• Citation: 35 A.3d 962,2011 VT 111
• Decision Date: 10 October 2011
• Docket Number: No. 10–158.,10–158.
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Rebecca WETTER.

2011 VT 111
35 A.3d 962

STATE of Vermont
v.
Rebecca WETTER.

No. 10–158.

Supreme Court of Vermont.

Sept. 16, 2011.Motion for Correction Granted Sept. 28, 2011.Motion for Reargument Denied Oct. 10, 2011.

[35 A.3d 964]

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff–Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

[35 A.3d 965]

REIBER, C.J.

¶ 1. Defendant Rebecca Wetter was charged with and convicted of three counts of endeavoring to incite a felony under 13 V.S.A. § 7 and one count of conspiracy under 13 V.S.A. § 1404. The charges were based on allegations that defendant and her daughter Jennifer ¹ desired to have defendant's husband killed and asked several mutual friends if they would commit the murder or find someone else who would. Defendant contends that the trial court committed reversible error by allowing a detective to testify regarding the contents of a telephone conversation between defendant and an informant which the detective listened to over a speaker phone with the informant's knowledge. Defendant also claims error in the trial court's failure to instruct the jury on the defense of renunciation under 13 V.S.A. § 1406(1) and (3), and argues that the court abused its discretion when it denied defendant's motion for a new trial based upon newly discovered evidence without holding an evidentiary hearing. We affirm.

¶ 2. In January or February 2007, defendant's daughter Jennifer telephoned her friend Ashley and indicated that defendant wanted Ashley's boyfriend Elliot, or someone he knew, to kill defendant's husband. Ashley testified that she knew defendant was present during the telephone call because she could hear her in the background of the conversation. She also testified that defendant herself asked several times whether Elliot would kill her husband or if he could find someone who would do it.

¶ 3. On February 22, 2007, Stephanie, a police informant, met with Detective Robert Estes and told him that defendant and Jennifer “were looking to possibly hire or have someone kill” defendant's husband. According to Stephanie, defendant first told her she wished to have her husband killed in November 2006, and had asked Stephanie if she would do it or if she could find someone to do it. Defendant and Jennifer approached Stephanie about the matter several more times in February 2007. During these conversations, defendant told Stephanie that her husband had a large life insurance policy, that he should be shot on his way home from work, that it should look like an accident, and that Stephanie would have to buy the gun because it would look too suspicious if defendant did.

¶ 4. On February 23, 2007, Detective Estes met with Stephanie again. This time he instructed her to call defendant and tell her that she had someone to use for the murder. Stephanie placed the call with her cell phone on speaker mode. Detective Estes was present and listened to both sides of the conversation. Stephanie did not tell defendant she was on speaker phone.

¶ 5. Evidence of the content of this telephone conversation between defendant and Stephanie was presented at trial through Detective Estes's testimony. He testified that when Stephanie said she might have found a solution for defendant's problem, defendant replied “find one.” Later in the conversation, when Stephanie told defendant a solution to her problem had been found, defendant replied “we can't talk about that over the phone.” Detective Estes testified that defendant was receptive to the idea of meeting with Stephanie's friend “from the city” about “having this done.” The call ended with the understanding that defendant would call Stephanie in a few days so that they could meet with Stephanie's friend.

[35 A.3d 966]

¶ 6. A few hours after that conversation, defendant called Stephanie to ask if she needed to meet with the friend “from the city” in person. Stephanie phoned Detective Estes to relay the question and he instructed her to call defendant back and explain that defendant needed to attend the meeting in person.

¶ 7. On February 26, 2007, the day of the scheduled meeting, defendant called Stephanie to say that she was in town but too scared to attend. It was decided that Jennifer would go to the meeting instead.

¶ 8. Stephanie arrived at the appointed meeting location where she saw defendant dropping Jennifer off. Stephanie and Jennifer entered a hotel room together and met with Detective Estes who posed as the hit man. During the forty-five-minute meeting, Jennifer gave Detective Estes a photo of defendant's husband, relayed his work route, outlined the property he owned, and explained that he had a large life insurance policy. Detective Estes quoted the price of the killing to be $20,000, and Jennifer responded that her mother could not make any payment until the husband was killed. The detective asked if anyone else had been contacted regarding the killing, and Jennifer replied that she had spoken with Elliot and Ashley about it. The meeting ended with the parties in agreement that in a few days they would meet with defendant again to discuss further details. Jennifer received a call from defendant before she left the hotel room.²

¶ 9. Detective Estes gave Jennifer a ride home from the meeting, and she testified that during this ride she began to suspect he was a police officer. When she arrived home she told defendant that she thought the hit man was a police officer and that the plan was a setup. When asked what happened next, Jennifer testified: “Nothing. Just it—it was over and it ended there, because we realized what we were doing and that it was nothing that we wanted to get ourselves into.” Detective Estes testified that when he next spoke with Jennifer and asked how things were looking, she responded that “they were all set as far as needing [his] assistance.” The jury found defendant guilty on all four counts.

¶ 10. Defendant contends that the trial court committed reversible error when it allowed Detective Estes to testify as to what he heard during the February 23 phone call between defendant and Stephanie. Defendant claims that under Chapter I, Article 11 of the Vermont Constitution she had a legitimate expectation of privacy as to the contents of that call and therefore the exclusionary rule precluded Detective Estes from testifying about what he overheard.

¶ 11. “An Article 11 search occurs when the government intrudes into areas or activities that are the subject of legitimate expectations of privacy.” State v. Bryant, 2008 VT 39, ¶ 11, 183 Vt. 355, 950 A.2d 467 (quotations omitted). “Under Article 11, the question of whether an individual has a legitimate expectation of privacy hinges on the essence of underlying constitutional values—including respect for both private, subjective expectations and public norms.” Id. (quotations omitted). Thus, “in order to invoke Article 11 protection, a person must exhibit an actual (subjective) expectation of privacy that society is prepared to recognize as reasonable.” Id. (quotations and alterations omitted).

[35 A.3d 967]

¶ 12. When determining whether a person has a subjective expectation of privacy, we often look to his or her actions for circumstantial evidence of an expectation of privacy. In State v. Rogers, for example, the defendants argued that the visual observation of their garden by a state trooper acting on a tip that defendants were cultivating marijuana was an illegal search under the Vermont and Federal Constitutions and thus could not support a finding of probable cause for the issuance of a search warrant. 161 Vt. 236, 238, 638 A.2d 569, 570–71 (1993). In addressing the question of whether the defendants had a subjective expectation of privacy we looked to the actions they had taken to secure the privacy of the...