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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 attorney, 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 conversations between the defendant and Jacqueline Becker,

which were recorded with Becker’s, but not the defendant’s, consent. The principal issue on appeal2

is

whetherthe 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 consent 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 competency was not improper. We therefore affirm the judgment of the trial court.

The jury reasonably could have found that the defendant 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 friendship 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 themselves. 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 problem 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 retirement 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 grandson 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 signature had been forged.

When Becker relayed these problems to the defendant, 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 investigator, orthe 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

forthe purported payments that Stuart Skok, the private

investigator, and the attorney required for their services. 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 deposited 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 investigator.

As time went on and Becker’s payments amassed,

the defendant’s story spiraled into an even more implausible 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 settlement 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 defendant’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. Beckerthen recorded multiple conversations 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 defendant, 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 references 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 telephone 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 warrantrequirement 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 violation . . . 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 provides 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 reasonable expectation of privacy, although we have previously 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 protection for such rights.’’ (Internal quotation marks omitted.) 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 Connecticut precedents; (3) persuasive federal precedents; (4)

persuasive precedents of other state courts; (5) historical insights into the intent of [the] constitutional [framers]; 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]factoris relevantin 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.’’(Citation 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 defendant 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 thatthe constitutional 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 subsequent police action has no constitutional ramifications.’’ [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 precedent supports the defendant’s argument that recording

her telephone conversations with Becker’s consent violated 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 underthe 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 parties’’ 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 ‘‘constitutional 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 susceptible of impeachment’’).

Although Lee, Hoffa, and Lopez all preceded the adoption 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 conversations 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 precedents, the court explained: ‘‘If the law gives no protection 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 thatrecording

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 approvingly 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 conclusion that it is not unconstitutional to record a telephone 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 party’s consent to do so.10 See, e.g., Commonwealth v.

Rekasie, 566 Pa. 85, 96, 778 A.2d 624 (2001) (‘‘A telephone 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 individual on the call. Extension telephones and speakerphones 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 constitution 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 electronic 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 unconstitutional the warrantless audio recording of face-to-face

conversations between the defendant and a police informant. 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 conversation with only one party’s consent because these cases

stand for the proposition that ‘‘it is perfectly reasonable

forindividuals to expectthattheir 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., Commonwealth 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 permissible underits state constitution forthe 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 electronically 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.’’); Commonwealth v. Rekasie, supra, 566 Pa. 97 (The expectation 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 reasonably 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 reasonable expectation of privacy in face-to-face conversations 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 policy of intolerance for the surreptitious recording of

telephone conversations. We first note that the legislature 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 telephonic . . . 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 private 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, wideranging 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 recipient of a telephonic communication which conveys

threats of extortion, bodily harm or other unlawful
requests or demands, records such telephonic communication . . . .’’14 General Statutes § 52-570d (b) (3).

This statute, therefore, does not reflect a sweeping policy against recording all private telephone conversations as the defendant suggests, but rather

demonstrates that the legislature has carefully balanced

the concern for protecting citizens’ privacy against multiple other countervailing policy interests.15

In sum, the Geisler factors clearly counsel against

concluding that the defendant had an objectively reasonable expectation of privacy in her telephone conversations when Becker consented to having them

recorded. Although she may have had a subjective

expectation that their conversations would remain private, 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 conclude 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 competency 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 defendant’s ability to understand the proceedings against her

or to assist in her defense. In support of this claim, the

defendantrelies on various statements made by defense

counsel to the court before the trial began regarding

the defendant’s health. Those statements, broadly characterized, indicated that the defendant suffered from a

chronic heart condition, that she experienced drowsiness 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 defendant with some continuing back pain, trial judge properly 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 condition 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 provided to the court before trial in support of her unsuccessful 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 inadequate 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 omitted]). Moreover, even assuming thatthe defendant accurately 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 difference 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 altogether’’), 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 prohibition 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 selection early because the defendant felt faint.

Thus, because there was no evidence before the trial

court indicating that the defendant could not understand 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 omitted]). 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 considerably 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 unknowingly, 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. CoronaChavez, 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 conversation 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 Wn. 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 defendant’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’’); Commonwealth 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 orrecording’’ [emphasis 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 atissue in this case would satisfy one ofthe 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 repeatedly or at an extremely inconvenient hour, or[d] which relate to communications 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 knowingly 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 defendant 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 specifically 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 forthe defendantrepeatedly eschewed the notion that the defendant

needed such an evaluation.