194 Conn. 530 | Conn. | 1984
Lead Opinion
After a trial to the jury, the defendant was convicted of three counts of murder and was sentenced by the court to three terms of imprisonment of twenty-five years to life, such sentences to run consecutively, for a total effective sentence of seventy-five years to life. In his appeal the defendant claims that his conviction was vitiated by (1) the denial of his motion
The jury could reasonably have found the following facts. On the early morning of April 16,1979, the police were called to the Purolator Armored Car garage in Waterbury where three guards, Leslie Clark, Edward Cody and William West, were found shot to death. Each body suffered multiple gunshot wounds, and the exterior and interior of the garage were littered with 24 expended 30 caliber shell casings fired from two M-l semi-automatic carbines. The truck which Cody and West had driven from Hartford early that morning into the Waterbury garage where Clark was working alone was riddled with bullet holes, and its contents, a shipment of approximately 1.8 million dollars in cash, checks, food stamps and jewelry, were missing.
Late in the afternoon of April 16, 1979, Patricia Dolphin came to the police with information that she had purchased an Iver Johnson M-1 carbine, serial number AA05518, at the request of Evelyn Vega for Lawrence Pelletier of Waterbury. Mrs. Dolphin related that Pelletier had been recently planning an armed robbery of the Purolator garage with a “Donald” whom Pelletier would talk to on the telephone. Mrs. Dolphin did not then know Donald’s last name, but at the trial Mrs. Dolphin later identified Donald Couture as “Donald.”
Acting on this information, the police sought a search warrant for the Waterbury home of Lawrence Pelletier to search for the murder weapons, other tools and the stolen armored car shipment. They also sought a war
Found at Pelletier’s home where Pelletier and Evelyn Vega lived were an attache case containing money, literature for a 30 caliber M-l carbine and two expended shell casings ejected from the same M-l carbine fired at the murder scene. The weapon itself and the robbery loot were not, however, at the Pelletier home.
The telephone toll record search revealed that Lawrence Pelletier often called a Donald Couture of Wallingford. On the basis of this and other information, during the early morning hours of April 17,1979, the police sought a search warrant for Couture’s premises in Wallingford. The search warrant was issued, and before dawn on the 17th the police entered the home of Donald Couture. There they found Donald Couture hiding under his bed. In the basement of that home were located the stolen armored car shipment, consisting of approximately $1,800,000 in cash, checks, food stamps, jewelry, empty deposit bags, and deposit slips made out by Purolator customers and a gun locker containing two 30 caliber M-l carbines. Couture was later found to have the key to the gun cabinet on his key chain.
The two M-1’s, one an Inland Marine model and the other the Iver Johnson, serial number AA05518, bought for Pelletier, were examined and compared with expended cartridge cases and bullets found at the Purolator garage and with bullets recovered from the bodies and clothing of the slain guards. These latter bullets did not, as did other bullets, pass through the guards’ bodies. Ten of the ejected cartridge cases at the murder scene came from the Iver Johnson carbine and fourteen had been ejected from the Inland Marine
On April 12,1979, the Inland Marine M-1 carbine had been purchased under a fictitious name from the North Haven Gun Company by Donna Couture as a gift for her husband, the defendant. On April 13, Pelletier and Donald Couture were seen going into the woods near Wallingford and a great number of shots were heard in those woods. A bullet and seven expended cartridge cases recovered from the woods were found to have been fired from the Iver Johnson and one such expended cartridge case was found to have been ejected from the Inland Marine M-1 carbine.
A pair of Hit 800 bolt cutters was also found in the defendant’s gun locker. These cutters had been used to cut a Page metal fence surrounding the Purolator garage to allow entry into the area. These same cutters had previously been borrowed from a Waterbury neighbor of Lawrence Pelletier by Pelletier’s son. Found in Couture’s basement gun locker were also two ski masks with the eye openings narrowed by thread which Pelletier’s girlfriend, Evelyn Vega, had prepared for the robbery, as well as trousers recognized as Pelletier’s. In Couture’s gun locker the police also found an attache case, of the same type as the one found in Pelletier’s house, filled with money. A footlocker was also found in Couture’s basement together with store boxes for the two attache cases. All three pieces of luggage had been purchased by Pelletier and Vega on April 16.
Donald Couture’s defense consisted of cross-examination of the state’s witnesses and the presentation of three defense witnesses. One defense witness was Hurlburt Dolphin, a brother-in-law of Patricia Dolphin, who attacked the credibility of Patricia Dolphin and stated Mrs. Dolphin once asked him for firearms. A second defense witness was Barbara Ranando of the Colonial Bank and Trust Company who identified a bank deposit bag found with the robbery loot as a Colonial Bank deposit bag given in 1975 to Richard Demonte, the last Couture witness. Demonte testified he had been a partner of the defendant, Donald Couture in a luncheonette business which closed in 1975.
I
Seizure of Evidence
On April 16, 1979, three guards of Purolator Security, Inc., were murdered and over 1.7 million dollars worth of U.S. currency, jewelry and other items were stolen in an armed robbery at the Purolator Security (Purolator) building at 20 Dunbar Lane, Waterbury. On April 17,1979, pursuant to a search warrant issued by Judge Henebry, law enforcement authorities entered the defendant’s residence at 227 Hall Avenue in Wallingford and seized, inter alia, two M-1 carbine rifles and seven bags of currency containing more than $800,000. The defendant challenges the seizure on the grounds that (1) there was insufficient probable cause for the issuance of the search warrant and (2) the currency was not properly seized under the plain view doctrine. We disagree.
PROBABLE CAUSE TO SEARCH
“Under existing law, valid warrants may be issued to search any property ... at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.” (Emphasis in original.) Zurcher v. Stanford Daily, 436 U.S. 547, 554, 98 S. Ct. 1970, 56 L. Ed. 2d 525, reh. denied, 439 U.S. 885, 99 S. Ct. 231, 58 L. Ed. 2d 200 (1978). Whether there is probable cause is to be determined upon facts stated in the affidavit purporting to establish grounds for issuing the warrant. United States v. Harris, 403 U.S. 573, 579, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); State v. DeChamplain, 179 Conn. 522, 530, 427 A.2d 1338 (1980). In considering the sufficiency of the affidavit we confine ourselves to the facts which appear on the face of the affidavit or which properly may be inferred therefrom; State v. Williams, 170 Conn. 618, 629, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); testing those facts with common sense and reality; United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); and with great deference to the fact that the issuing magistrate did determine that probable cause existed. Jones v. United States, 362 U.S. 257, 270-71, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). The limited issue in the present case is whether it was reasonable to infer from the facts appearing in the affidavit that the weapons which were used in the robbery and murder at Purolator would be found at the defendant’s residence.
When a warrant is sought to search specific premises for certain objects the information appearing in the affidavit should demonstrate a nexus between the objects to be seized and the premises to be searched. United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.
The affidavit
State v. DeChamplain, supra, does not require a different result. In that case, we held that the affidavit was insufficient to support a finding of probable cause that marihuana was located in the defendant’s apartment. There the affidavit revealed that a drug transaction was arranged over the phone located in the apartment. The police then observed the defendant leave the building in which the apartment was located, enter a car parked near the building, drive directly to the designated meeting place and consummate the transaction. Id., 524-25. The affidavit did not state whether, when the defendant left the apartment building, he was carrying a package. Id., 532. We concluded that these observations of activity around the building did not sufficiently support the conclusion that there was probable cause to believe that there was marihuana in the apartment. Id., 530.
The affidavit also disclosed that the murder weapon was recently purchased and bore a serial number which made it easily traceable to Pelletier. The magistrate could reasonably infer that the defendant would have an interest in secreting this weapon or dismantling it, before it could be associated with the defendant. The magistrate was aware that all of this had to be accomplished in the relatively short period of time that had elapsed since the crime, and in a safe place. It was reasonable for the magistrate to conclude that, if the defendant believed that his house was a safe place for the money, it was also a safe place temporarily to hide the weapon. “Where the object of the search is a weapon used in the crime . . . the inference that the items are at the offender’s residence is especially compelling, at least in those cases where the perpetrator
In reviewing the sufficiency of an affidavit for a search warrant we do not conduct a de novo review. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). Rather, the traditional standard of review is whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Id. In considering the quantum of certainty required, it is only a probability, and not a prima facie showing of criminal activity, that is the standard of probable cause. United States v. Travisano, 724 F.2d 341, 346 (2d Cir. 1983). If there is a fair probability that the premises to be searched will yield the objects specified in the search warrant, the fourth amendment has been satisfied even where many localities were available to the guilty parties to secrete the fruits and instrumentalities of the crime. Id. Applying these standards, we agree with the trial court that there was a substantial basis for the issuing magistrate to conclude that the weapon used in the murder would be found at the defendant’s residence.
B
SEIZURE OF MONEY - PLAIN VIEW
Given the lawful entry of the police into the defendant’s residence pursuant to a valid search warrant the next question is whether they were justified in seizing the money which was observed in a number of trans
II
On August 29,1979, the defendant filed an omnibus motion to dismiss the indictment which challenged, inter alia, (1) the underrepresentation of certain groups on Waterbury grand juries;
A
CHALLENGE TO GRAND JURY ARRAY
The defendant claims that the underrepresentation of Hispanics
The trial court, in an exhaustive memorandum of decision, held that since the defendant was not Hispanic he had no standing to raise an equal protection challenge. It further concluded that the defendant could not raise a due process challenge because the sixth amendment requirement that state juries reflect a fair cross-section of the community was inapplicable to state grand juries. The court reasoned that unlike the sixth amendment, the grand jury provisions of the fifth
We agree with the trial court that the defendant’s equal protection claim is not cognizable. It is well settled that in order to bring such a challenge, the defendant must be a member of the underrepresented class. Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). We do not agree, however, that the defendant is precluded from raising a due process challenge.
Although a state is not required to utilize a grand jury as part of its criminal justice system, when it chooses to do so it must “hew to federal constitutional criteria.” Carter v. Jury Commission of Greene County, Alabama, 396 U.S. 320, 330, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970); Cobbs v. Robinson, 528 F.2d 1331, 1334 (2d Cir. 1975), cert. denied, 424 U.S. 947, 96 S. Ct. 1419, 47 L. Ed. 2d 354 (1976); State v. Cobbs, 164 Conn. 402, 407, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973). In Peters v. Kiff 407 U.S. 493, 502, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972) (plurality opinion), the court recognized a due process challenge to a state grand jury, without requiring the defendant to be a member of the underrepresented class. “[A] [sjtate cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole
This court has implicitly acknowledged the applicability of the due process clause to the selection of the grand jury. Just this term in State v. Castonguay, 194 Conn. 416, 481 A.2d 56 (1984), we exhaustively considered the defendant’s due process challenge to the composition of the grand jury. Previously, in State v. Cobbs, supra, 407-11, we discussed the defendant’s claim that the grand jury was not drawn from a fair cross-section of the community. See also State v. Reinosa, 29 Conn. Sup. 117, 274 A.2d 452 (1970).
We recognize that there is some authority for the trial court’s position. See, e.g., Castaneda v. Partida, supra, 509 (Powell, J., dissenting); Villafane v. Manson, 504 F. Sup. 78, 82 n.6 (D. Conn.), aff d without opinion, 639 F.2d 770 (2d Cir. 1980);
In State v. Castonguay, 194 Conn. 416, 421-22, 481 A.2d 56 (1984), we set out the proper analysis for a fair cross-section challenge: “ ‘In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ Duren v. Missouri, [439 U.S. 357], 364, [99 S. Ct. 664, 58 L. Ed. 2d 579 (1979)]. Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest. Id., 367.”
It is beyond dispute that Hispanics constitute a distinct group in the community. Id., 424; State v. Villafane, 164 Conn. 637, 325 A.2d 251 (1973). The defendant has satisfied this element of his burden of proof.
The grand jury array during the relevant period was composed of 612 grand jurors. If the array reflected the number of Hispanics in the judicial district (4.5 percent), it should have included approximately twenty-eight Hispanics (4.5 percent of 612). The array included six Hispanics. Hispanics were therefore underrepresented by almost twenty-two grand jurors. In substantial impact terms, slightly more than one Hispanic should have been included on every other grand jury. Since “only ‘gross’ or ‘marked’ disparities or ‘substantial’ departures from a ‘fair cross section’ require judicial intervention”; United States v. Test, 550 F.2d 577, 590 (10th Cir. 1976); we cannot conclude that this underrepresentation is constitutionally significant. Cf. State v. Castonguay, supra, 430-31.
B
PRESENCE AND CONDUCT OF UNAUTHORIZED PERSONS BEFORE THE GRAND JURY
During the course of the grand jury proceedings, counsel for the defendant and counsel for his codefendant Lawrence Pelletier requested the trial court’s permission to accompany their clients in the grand jury room
Since the defendant did not testify, his counsel was not present in the grand jury room at any time. His codefendants Evelyn Vega and Donna Couture did testify, however, and their respective attorneys, David Rosen and Hugh Keefe, were permitted by the court to be present during their testimony. The defendant, whose counsel was present when permission was granted, did not object. In disregard of the trial court’s express instructions, both counsel participated in the questioning of their clients. The defendant claims that the attorneys’ presence and conduct require dismissal of the indictment.
The first aspect of the defendant’s claim is addressed to the trial court’s action in authorizing the attorneys’ presence. The defendant urges us to adopt a per se rule similar to that in the federal courts; see, e.g., United States v. Phillips Petroleum Co., 435 F. Sup. 610, 618 (N.D. Okla. 1977), and cases cited therein; and hold that the presence of any unauthorized person in the grand jury room vitiates the indictment. The defendant has
The issue of who is authorized to be present in the grand jury room is a matter of practice embodied in Practice Book § 609.
Nor can we consider the second aspect of the defendant’s claim, that the attorneys, in disregard of the trial court’s instructions, elicited testimony from their clients. In support of his claim that he was prejudiced by this questioning the defendant relied on the transcript of the grand jury proceedings.
At the time of the offense, General Statutes (Rev. to 1979) § 54-45a limited the evidentiary use of the grand jury transcript in any proceeding against the accused to “impeaching a witness, attacking the credibility of a witness or proving inconsistent statements of a witness. Such transcript may also be used as evidence in a prosecution for perjury committed by a witness while giving such testimony.” In State v. Canady,
C
EVIDENCE NOT PRESENTED TO THE GRAND JURY
The state and the defendant have stipulated that certain information
We do believe, however, that since the state has no interest in accusing the wrong person, it is obliged to present the grand jury with any substantial evidence that would negate the accused’s guilt, that is evidence which “might reasonably be expected to lead the jury not to indict.” United States v. Ciambrone, supra, 623. It is unnecessary for us to discuss each piece of information contained in the stipulation. Suffice it to say that we have examined the information and conclude that none of it would have precluded a finding of probable cause. We find no error.
Ill
“Amendment” to Indictment
The defendant asserts that the trial court impermissibly amended the indictments contained in counts five and six and therefore the defendant’s convictions on these counts should be reversed and these indictments
The court quite properly instructed the jury to disregard § 53a-54a in its consideration of the felony murder indictments. The jury is concerned only with the elements of the crime charged. The defendant does not claim nor is there a basis for a claim that the jury was not properly instructed on the elements of the crime of felony murder. The penalty provisions of § 53a-54a were not matters for the jury’s consideration since it is not the jury’s duty to pass upon the punishment of the accused. State v. Wade, 96 Conn. 238, 243, 113 A. 458 (1921); State v. Main, 75 Conn. 55, 63, 52 A. 257 (1902).
IV
Prosecutor’s Summation
During the opening summation, Walter Scanlon, chief assistant state’s attorney, reading from a prepared text, made a number of disparaging comments about the
But that is not the end of the inquiry. Because the right implicated is the defendant’s due process right to a fair trial, we proceed next to an examination of the remarks to determine their likely impact. “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Cosgrove, 186 Conn. 476, 489, 442 A.2d 1320 (1982). “The question before us on this appeal is not, primarily, whether the remarks in question were proper or improper, but it is whether the action of the trial court in refusing to grant a new trial on account of them, in the exercise of its discretion, so far exceeded or abused the discretion committed to it in a matter of this kind as to warrant us in granting a new trial.” State v. Laudano, 74 Conn. 638, 646, 51 A. 860 (1902). The question then is whether the remarks of the prosecution were so egregious that no curative instruction
When a defendant has been convicted of committing a number of heinous crimes on a record that does not permit serious doubt of his guilt, it is painful to reverse his conviction. Our constitution, however, does not condition constitutional rights on guilt or innocence. “Indeed, it is ‘well established that serious prosecutorial misconduct, regardless of the prosecutor’s intentions, may so pollute a criminal prosecution as to require a new trial, even without regard to the prejudice to the defendant.’ State v. Hafner, [168 Conn. 230,] 251, [362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975)]. Crucial considerations in appellate adjudication of such questions are not only the need, where demonstrated, to discipline prosecutors where reprehensible conduct is present but to assure ultimate fairness to the defendant. State v. Hafner, supra, 252; see Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).” State v. Binet, 192 Conn. 618, 629, 473 A.2d 1200 (1984). Each case necessarily depends on its own facts and circumstances. If the challenged remarks occurred in the heat of a sum
Article first, § 8 of the Connecticut constitution provides that “[n]o person shall be . . . deprived of . . . liberty . . . without due process of law . . . .’’It is the prosecutor’s duty to ensure that a defendant’s conviction comports with this provision. As we stated in State v. Ferrone, 96 Conn. 160, 168-69, 113 A. 452 (1921) “[b]y reason of his office, [the prosecutor] usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because
V
Consecutive Sentences — Felony Murder
The defendant was convicted of both the intentional and the felony murder of Leslie Clark and of the felony murders of Edward Cody and William West. He received separate sentences for the murder of each guard, the term (twenty-five years to life) of each sentence to be served consecutively. The defendant challenges the legality of these consecutive sentences both as a matter of statutory construction and as a violation of the double jeopardy clause of the fifth amendment to the United States constitution. We do not agree with the defendant’s position in either respect.
Felony murder is a crime against the person. General Statutes § 53a-54c, which proscribes felony murder, provides in pertinent part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits . . . robbery . . . and, in the course of and in furtherance of such crime ... he, or another participant . . . causes the death of a person other than one of the participants . . . .” Death caused in the course of and in furtherance of the underlying felony is an essential element of the crime of felony murder. State v. MacFarlane, 188 Conn. 542, 550, 450 A.2d 374 (1982); State v. Morin, 180 Conn. 599, 605, 430 A.2d 1297 (1980).
The statute refers to the death of “a person” in the singular. A fundamental purpose of the criminal law is to protect individual citizens from the criminal con
There are no double jeopardy obstacles to our construction of the felony murder statute. The double jeopardy clause of the United States constitution protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). It does not prevent either multiple convictions or multiple punishment for multiple offenses. State v. James, 631 P.2d 854, 855-56 (Utah 1981).
There is error, the judgment is set aside and a new trial is ordered.
In this opinion Peters, Grillo and Ment, Js., concurred.
“AFFIDAVIT AND APPLICATION
SEARCH AND SEIZURE WARRANT
TO: A JUDGE OF THE SUPERIOR COURT
“The undersigned, being duly sworn, complains on oath that the undersigned has probable cause to believe that certain property, to wit: .30 caliber Ml carbine rifle Serial # AAo5518 or bearing another or no serial #, magazines for said Ml carbine rifle, ammunition for said Ml Carbine rifle, spent cartridge case or cases for said Ml Carbine rifle, spent projectiles for said Ml carbine rifle, hacksaws, wrenches, wire cutters and fingerprints of Donald Couture. 1973 Cadillac HT color grey, Ct. Reg. UG-1799; 1973 GMC pick up color green Ct. Reg. CW3105:1970 Mercury HT color black Ct. Reg. VG-3794 is possessed, controlled, designed or intended for use as a means of committing the crime of Murder and Robbery in the first degree and which constitutes evidence that Donald Couture participated in the crime of murder and robbery in the first degree, is or has been or may be used as the means of committing said crimes of Murder and robbery in the first degree. Sums of United States currency, jewelry, food stamps, cancelled checks, checks, containers and or envelopes for said currency, jewelry, food stamps, cancelled checks, checks, which aggregated 1.7 million dollars.
were stolen from Purolator Security, Inc., 20 Dunbar Lane, Waterbury, Ct., on or about April 16, 1979.
and is within or upon a certain person, place or thing, to wit — Donald Couture and his premises at 227 Hall Avenue, Wallingford, Ct., including all out buildings, garages, garbage areas, attic and basement and a 1973 Cadillac HT color grey bearing Ct. Reg. UG-1799; a 1973 GMC pickup color green bearing Ct. Reg. CW-3105; and a 1970 Mercury HT color black bearing Ct. Reg. UG-3794 which is registered to Donna Couture and the premises of Donald Couture at 39 Martin St., Wallingford, Ct., including all buildings.
and that the facts establishing the grounds for issuing a Search and Seizure Warrant are the following:
*538 “1. That on April 16,1979 three guards of Purolator Security, Inc., were murdered and over 1.7 million dollars worth of U.S. Currency, jewelry, food stamps, cancelled checks and or checks were stolen in an armed robbery at the Purolator Security armored garage at 20 Dunbar Lane, Waterbury, Ct. The crime scene was observed by the affiants, C. I. Griffin, a Waterbury Police Officer directing the investigation and Special Agent Raymond Looney of the F.B.I. coordinator with the F.B.I. Waterbury Police investigation.
“2. That on April 16,1979 Patricia Campbell Dolphin came to the police and related the following information to the affiants:
“3. That Mrs. Dolphin stated that she is a friend of Evelyn Pelletier aka Evelyn Vega, who is the girlfriend of Lawrence J. Pelletier of 23 Carmen St., Waterbury, Ct., lives with him and in whose name a 1970 Dodge automobile bearing Ct. Reg. WS-1109 is registered and which vehicle said Pelletier uses. A vehicle being green with black top was observed by Det. Bouley at the premises on 4-16-79. It was used by Pelletier.
“4. That Mrs. Dolphin stated that she (Mrs. Dolphin) purchased an Ml carbine rifle bearing S.N.AA05518, in Meriden for said Pelletier on April 7, 1979, at Evelyn Pelletier aka Evelyn Vega’s request. Such a weapon according to James E. McDonald, a forensic criminalistics and ballistic expert, who examined the crime scene and removed spent cartridge cases therefrom on April 16, 1979, was fired over 30 times at the scene where the three guards were victims of multiple and deadly gunshot wounds and the armored car was fired upon many times in said robbery. This information was given to said affiants by said McDonald.
“5. That within the past two weeks said Pelletier discussed with Evelyn Pelletier aka Evelyn Vega in the presence of Mrs. Dolphin that he was going to do a big job. On April 12, 1979 Evelyn Pelletier aka Evelyn Vega had pointed out a Purolator Security armored truck to Mrs. Dolphin as the job that was going to occur. Mrs. Dolphin so informed the affiants.
“6. That Mrs. Dolphin saw Pelletier also borrow a pair of wire cutters through his son from his neighbor to use in the job. At this time, Pelletier, stated in Mrs. Dolphin’s presence that the cutters were needed to cut the fence for the job as they could not be seen climbing over the fence. Before Thursday, April 12,1979, said Pelletier took said cutters out of the house*539 at night and left with a loud sounding track owned by Donald (last name unknown) and then returned to the house with the clippers where Mrs. Dolphin saw them on Saturday, April 14, 1979. On April 12, 1979, Mrs. Pelletier aka Mrs. Vega purchased two inch surgical tape to use to gag the guards for the job, but the tape would not hold as Mrs. Dolphin observed Mrs. Pelletier aka Mrs. Vega use the tape on Pelletier but it would not hold. Mrs. Dolphin observed this during the week of April 8, 1979 to April 14, 1979.
“7. That according to James McDonald, the high wire fence surrounding the Purolator Security Inc., garage where the crime occurred was cut in numerous places and chains and bolts also cut with a pair of wire cutting tools.
“8. That according to Evelyn Pelletier aka Evelyn Vega, who so informed Mrs. Dolphin the idea to commit the robbery arose during a breaking and entering of the Franco American Club adjoining the murder scene. Pelletier had cased the job and watched the place at night and Mrs. Dolphin heard Pelletier and Mrs. Pelletier aka Mrs. Vega discussing this and then Donald and Pelletier left the house every night for a week at 2 A.M. and returned at 5 A.M. in April, 1979. The job referred to in this paragraph is the big job that Pelletier was to do. That the Franco American Club was broken into and entered on March 5, 1979 according to police records.
“9. That the Franco American Club was broken into and entered on March 5, 1979 according to police records.
“10. That Pelletier in April 1979 had according to Mrs. Dolphin, test fired the carbine rifle in the basement of 23 Carmen St., Waterbury, Ct., as she had heard the and smelled the powder. Mrs. Dolphin purchased two clips for the weapon and ammunition for the same on April 7,1979 in Meriden. She purchased one box of ammunition.
“11. That in the course of said robbery according to James E. McDonald, who reported same to the affiants, a hacksaw was used to cut an interior bolt securing a trap door in the Purolator garage which was forced open*540 by the perpetrators, wrenches were used to remove the fence bolts to open the surrounding fence, cutters used to cut the fence, other bolts and fence chains.
“12. That Mrs. Dolphin also heard Pelletier and Mrs. Pelletier aka Mrs. Vega discussing the use of wire to tie up the guards, in April 1979.
“13. That on the evening of April 16, 1979, Det. Bouley observed the residence of Lawrence J. Pelletier at 23 Carmen St., Waterbury, Ct., and saw a green automobile with a black vinyl top, which according to Mrs. Dolphin is used by Pelletier.
“14. According to Mrs. Dolphin, as told to the affiants, Pellitier was actively engaged with Donald, last name unknown, a white male about 25 years old in planning the job and using Donald’s truck to case the job. Donald, who had no record, according to Pelliteier to Mrs. Dolphin, had done many other crimes with Pellitier. Both would call each other over Pellitier’s telephone, whose number, often called by Mrs. Dolphin, is Waterbury, 756-7335. Donald, Mrs. Dolphin related would often meet Pellitier in Cheshire.
“15. That on one night last week Mrs. Dolphin overheard Donald and Pelletier discussing the fact that they were so close to the building that they could hear the guards talking inside the building.
“16. The toll records of Pelletier’s telephone number 756-7335 were examined under search warrant in the possession of S.N.E.T. Co. and revealed a great number of calls to 269-0495 listed to Donald and Donna Couture, 227 Hall Avenue, Wallingford, Ct. According to Mrs. Dolphin, the Donald referred to in this warrant had a wife named Donna and was in regular contact with Pelletier.
“17. That found at Pelletier’s residence by the affiant C.I. Griffin and men under his direction were spent shell casings, bullets and a phamplet for an Ml carbine rifle. Pelletier’s neighbor confirmed that he had lent Pelletier a pair of wire cutters. However the carbine, and the wire cutters were not located at Pelletier’s residence.
“18. That a 1973 GMC green pick up Ct. Reg. CW-3105, a 1973 Cadillac HT color grey, Ct. Reg. VG-1799, are now registered to Donald Couture,*541 and a 1970 Mercury HT color black Ct. Reg. VG-3794 was until recently registered to Donna Couture. Said vehicles are registered to Donna and Donald Couture at 39 Martin St., Wallingford, Ct.
“19. That Mrs. Dolphin stated that during March 1979 she saw Donald Couture driving a Cadillac.
“20. That James McDonald a forensic criminalistics and ballistic expert stated that the shell casings recovered at the home of Pelletier matched the shell casings found at the scene of the Purolator Security Inc. armed robbery and murders which took place on or about April 16,1979. McDonald stated this on April 17, 1979.
“21. That according to the records of S.N.E. T. Co. Donald Couture and Donna Couture have service as of this time at 227 Hall Ave., in Walling-ford, Ct. 269-0495 and had a listing in the September 1977 telephone directory at 39 Martin Ave., Wallingford, Ct.
The undersigned has not presented this application in any other court or to any other judge.
Wherefore the undersigned prays that a warrant may issue commanding a proper officer to search said person or to enter into or upon said place or thing, search the same, and take into custody all such property.
"Isl John Griffin Chief Insp.
Signed at Wtby., Conn. This 17 day of April, 1979.
"Isl Raymond M. Looney, Special Agent, FBI, Wtby, Ct.
Signed at Wtby., Conn. This 17 day of April, 1979.
“JURAT
Subscribed and sworn before me this 17th day of April, 1979.
Signed a judge of Sup. Court Henebry, J.”
“SEARCH AND SEIZURE WARRANT
“STATE OF CONNECTICUT SUPERIOR COURT
“The foregoing Affidavit and Application for Search and Seizure Warrant having been presented to and been considered by the undersigned, a Judge of the Superior Court, the undersigned (a) is satisfied therefrom that grounds exist for said application, and (b) finds that said Affidavit establishes grounds and probable cause for the undersigned to issue this Search and Seizure Warrrant, such probable cause being the following: From said Affidavit and the undersigned finds that there is probable cause for the*542 undersigned to believe that the property described in the foregoing Affidavit and Application is within or upon the person, if any, named or described in the foregoing Affidavit and Application, or the place or thing, if any, named or described in the foregoing Affidavit and Application, under the conditions and circumstances set forth in the foregoing Affidavit and Application, and that, therefore, a Search and Seizure Warrant should issue for said property.
“NOW THEREFORE, by Authority of the State of Connecticut, I hereby command any Police Officer of a regularly organized police department or any State Policeman to whom these presents shall come within a reasonable time after the date of this warrant to
Enter into or upon and search the place or thing described in the foregoing affidavit and application, to wit: premises at 227 Hall Avenue, Wallingford, Ct., including all outbuildings, garages, garbage areas, attic and basement and a 1973 Cadillac HT color grey bearing Ct. Reg. UG-1799; a 1973 GMC pickup colo- green bearing Ct. Reg. CW-3105; and a 1970 Mercury HT color black bearing Ct. Reg. UG-3794 which is registered to Donna Couture and the premises of Donald Couture at 39 Martin St., Walling-ford, Ct., including all buildings.
Search the person described in the foregoing Affidavit and application, to wit: Donald Couture
for the property described in the foregoing Affidavit and Application, to wit: .30 caliber M1 carbine rifle Serial #AA05518 or bearing another or no serial #, magazines for said M1 carbine rifle, ammunition for said Ml Carbine rifle, spent cartridge case or cases for said M1 carbine rifle, spent projectiles for said Ml carbine rifle, hacksaws, wrenches, wire cutters and fingerprints of Donald Couture. 1973 Cadillac HT color grey, Ct. Reg. UG-1799; 1973 GMC pick up color green Ct. Reg. CW3105; 1970 Mercury HT color black Ct. Reg. VG-3794 and upon finding said property to seize the same, take and keep it in custody until the further order of the court, and with reasonable promptness make due return of this warrant accompanied by a written inventory of all property seized.
“SIGNED AT Waterbury, Connecticut, This 17th day of April, 1979.
/s/ Henebry, J.
A JUDGE OF THE SUPERIOR COURT”
“APPLICATION TO DISPENSE WITH REQUIREMENTS OF P.A. 76-155.
“RE: SEARCH WARRANT APPLICATION DATED 4-17-79 FOR A CERTAIN PERSON, PLACE OR THING TO WIT .... person of*543 Donald Couture, Cadillac bearing Ct. Reg. VG-1799, 1973 GMC pick up green Ct. Reg. CW-3105,1970 Mercury black Ct. Reg. VG-3794, premises at 227 Hall Ave., and 39 Martin St., Wallingford, Ct.
“THE UNDERSIGNED HEREBY REQUESTS THAT THE REQUIREMENT, PURSUANT TO P.A. 76-155, CONCERNING THE DELIVERY OF APPLICATIONS FOR AND AFFIDAVITS IN SUPPORT OF A SEARCH WARRANT BE DISPENSED WITH FOR THE FOLLOWING REASON(S):
“THE PERSONAL SAFETY OF A CONFIDENTIAL INFORMANT WOULD BE JEOPARDIZED BY THE GIVING OF A COPY OF THE AFFIDAVITS AT SUCH TIME.
“THE SEARCH IS PART OF A CONTINUING INVESTIGATION WHICH WOULD BE ADVERSELY AFFECTED BY THE GIVING OF A COPY OF THE AFFIDAVITS AT SUCH TIME.
“THE GIVING OF SUCH AFFIDAVITS AT SUCH TIME WOULD REQUIRE DISCLOSURE OF INFORMATION OR MATERIAL PROHIBITED FROM BEING DISCLOSED BY CHAPTER 959a.
“SIGNED Isl John Griffin C. Insp.
Isl Raymond M. Looney Special Agent, FBI”
“4/17/79
“THE FOREGOING APPLICATION IS GRANTED
JFH
7s/ Henebry, J. JUDGE”
Because of our holding that the warrant was supported by probable cause, we need not decide whether the good faith exception to the exclusionary rule, recently announced in United States v. Leon, 468 U.S. , 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), is applicable to this case. “For the same reason, we need not decide whether the modification of the exclusionary rule made by Leon would sufficiently uphold the rights guaranteed by article first, § 7 of the Connecticut constitution.” State v. Delmonaco, 194 Conn. 331, 334 n.4, 481 A.2d 40 (1984).
The defendant also contended that the exclusion of blacks and women from the positions of grand jury foreperson and grand jury attorney was unconstitutional. We do not reach these claims.
With respect to the foreperson challenge, the United States Supreme Court has recently rejected this claim. In Hobby v. United States, 468 U.S. , 104 S. Ct. 3093, 3097, 82 L. Ed. 2d 260 (1984), the court held: “No one person can possibly represent all the ‘qualities of human nature and varieties of human experience,’ [Peters v. Kiff, 407 U.S. 493, 503, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972)], that may be present in a given community. So long as the composition of the federal grand jury as a whole serves the representational due process values expressed in Peters, discrimination in the appointment of one member of the grand jury to serve as its foreman does not conflict with those interests.” (Emphasis in original.) Accordingly, this claim is not cognizable.
With respect to the attorney member challenge, the reasoning in Hobby applies with equal force to this claim. We do not believe that this claim should be considered apart from the challenge to the entire grand jury.
The defendant’s claims of underrepresentation of other groups, not having been briefed, are considered abandoned. Kiniry v. Danbury Hospital, 183 Conn. 448, 449, 439 A.2d 408 (1981).
Prior to the hearing, the state and the defendant stipulated to the number of grand juries and the estimate of the Hispanic population. The evidence of the number of Hispanics who actually served was not contested.
Three justices relied on 18 U.S.C. § 243 which imposes criminal penalties for racial discrimination in the selection of grand or petit jurors. Peters v. Kiff, 407 U.S. 493, 505-507, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972) (White, J., concurring).
Villafane v. Manson, 504 F. Sup. 78 (D. Conn.), aff’d without opinion, 639 F.2d 770 (2d Cir. 1980), was an equal protection challenge to a grand jury array. Thus the statement in footnote 6 that “[a] challenge to the composition of state grand juries, unlike a challenge to the petit jury, involves only the fourteenth amendment equal protection clause. No fifth or sixth amendment due process considerations are invoked,” is dicta. The validity of this dicta is questionable since the second circuit has analyzed a due process challenge to a state grand jury. See Cobbs v. Robinson, 528 F.2d 1331 (2d Cir. 1975), cert. denied, 424 U.S. 947, 96 S. Ct. 1419, 47 L. Ed. 2d 354 (1976).
Practice Book § 609 provides:
“Sec. 609. —who may be present
“The following persons may be present while the grand jury is hearing evidence:
“(1) The witness under examination;
“(2) Interpreters when needed;
“(3) Such security personnel as the judicial authority shall deem necessary;
“(4) The defendant, within the discretion of the judicial authority; and
“(5) A court reporter.
No persons other than the jurors may be present while the grand jury is deliberating or voting.”
At the hearing on the motion to dismiss, Attorney Rosen conceded that he questioned his client but was precluded from testifying to the substance of that questioning.
In Public Acts 1980, No. 80-313, § 4, General Statutes § 54-45a was amended. The provision discussed above was unchanged however. See General Statutes (Rev. to 1981) § 54-45a (b).
Even if the defendant attempted to press his claim without relying on the transcript, we would find no error in the face of all the evidence before the grand jury that inculpated the defendant. We could hardly say that it was the testimony elicited by Donna Couture’s and Evelyn Vega’s attorneys that led to the grand jury’s conclusion that the defendant should stand trial.
“13. The State’s Attorney’s Office had information as follows in its files or in police files at the time of the Grand Jury hearing:
“A. No latent fingerprints of Donald Couture or Lawrence Pelletier were developed at the scene of the murders.
“B. At the time she testified, Patricia Dolphin was receiving subsistence payments from the United States Government and had been relocated at Government expense under the witness protection program.
“C. I. Before any statement was taken from Donna Couture and before she appeared as a witness before the Grand Jury, the State made the following statement to Mrs. Couture and her attorney:
“Mr. McDonald: ‘In this matter, the matter of Donna Couture, Mr. Keefe and Mrs. Couture are here present and before any statement is taken the State’s Attorney’s Office states that we do not at this time seek a capital felony indictment for the June 4,1979 Grand Jury. We will, however, seek a felony murder indictment as described in Counts four, five and six of the proposed indictment.
“If cooperation, and by that we mean one hundred percent cooperation,*556 is received, we will bring this matter to the attention of the sentencing judge if Mrs. Couture wishes us to do so and if she is at any time sentenced for any criminal involvement with respect to this case.’
“II. Before any statement was taken from Evelyn Vega and before she appeared as a witness before the Grand Jury, the State made the following statement to Mrs. Vega and her attorney:
“Mr. McDonald: ‘Miss Vega is here with her lawyers, Mr. Rosen and Miss MacKinnon, and we are stating that we are agreeing not to seek a capital felony indictment at the June 4,1979, session of the Grand Jury with respect to this case. We will, however, seek the felony murder indictment against Miss Vega and others as set forth in Counts four, five and six of the proposed indictment.
“ ‘If cooperation is received, and that is one hundred percent cooperation, we will bring that to the attention of the sentencing judge, should Miss Vega be brought before a judge for sentencing in connection with her conduct in this case.
“ ‘If there is this type of cooperation, of course, we will not oppose an application for reasonable bail.
“ ‘Our agreement not to seek the capital felony count applies to Evelyn Vega and Donna Couture only. That is the sole consideration and agreement entered into between the State and Miss Vega at this time.’
“D. The witness Patricia Dolphin had, previous to her testimony, described the person she identified as Donald Couture before the Grand Jury as having blond curly hair.
“E. Mary Haseronck, a former employee of Purolator, had informed the police that two former Purolator employees were users of narcotics and she suspected them of the crimes.
“F. Robert Stokes of Wallingford confessed to participating in the crimes subject of the indictments.”
Count five of the indictment reads, in pertinent part, as follows:
“THE GRAND JURORS WITHIN AND FOR THE SAID COUNTY OF NEW HAVEN, accuse Donald Couture of murder in that, in violation of Section 53a-54a of the General Statutes, said . . . Donald Couture . . . did with intent to cause the death, cause the death of Edward Cody at Waterbury on or about April 16,1979 and in that in violation of Section 53a-54 (c) of the General Statutes, said . . . Donald Couture ... did commit robbery and in the course of and in furtherance of such robbery said participants or any one of them did cause the death of Edward Cody, not a participant in said robbery, at Waterbury on or about April 16,1979, and in violation of Section 53a-54a.
A True Bill Is/ Gerald M. Noonan Foreman
June 6, 1979.”
Count six of the indictment reads, in pertinent part, as follows:
“THE GRAND JURORS WITHIN AND FOR THE SAID JUDICIAL DISTRICT OF WATERBURY, accuse Donald Couture of murder in that, in violation of Sec. 53a-54a of the General Statutes, said . . . Donald Couture . . . did with intent to cause the death, cause the death of William West at Waterbury on or about April 16, 1979 and in that in violation of Section 53a-54 (c) of the General Statutes said . . . Donald Couture . . . did commit robbery and in the course of and in furtherance of such robbery said participants or any one of them did cause the death of William West, not a participant in said robbery, at Waterbury on or about April 16, 1979, and in violation of Section 53a-54a.
A True Bill Isl Gerald M. Noonan Foreman
June 6, 1979.”
“[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, providing nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
“(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
“(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”
“[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
A sample of the objectionable comments are as follows:
“I implore you not to forget that . . . the lives of three good men . . . were literally sacrificed to satisfy the greed of two murderous fiends.”
“Now, it did not take you long, did it, ladies and gentlemen, to discover that this was not a case about cats and mice. No, ladies and gentlemen. It was a case about rats. And what else would you call some people who would lay in wait and shoot three men in the back except maybe cowards.”
“After asking the dutiful wife [Donna Couture] a number of questions, the officers walked through the kitchen and entered the bedroom and found Couture beneath the bed garbed in only a pair of shorts, the macho, despicable coward number one.”
“We have learned . . . they are cold blooded and merciless killers that took the lives of three good, decent and hard working men . . . .”
“What kind of person would lay in wait and attack three unsuspecting and almost defenseless men but shoot them in the back? They must be the most inhumane, unfeeling and reprehensible creatures that God has damned to set loose upon us.”
It is apparent from the record that the court and counsel discussed in advance the court’s planned instructions. As a result of this discussion, the court incorporated in its instructions recommendations from counsel respecting several aspects of its charge.
Dissenting Opinion
dissenting. I agree with the majority except for their resolution of the defendant’s claim concerning the prosecutor’s summation. At the outset, it must be made clear that I consider the prose
The defendant’s claim is unquestionably aimed at a denial of his right to due process and a fair trial. Just last year in State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916,104 S. Ct. 280, 78 L. Ed. 2d 259 (1983), we declared that “[t]he general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. . . . When a mistrial is sought on the ground that a prosecutor’s improper remarks violated the defendant’s constitutional right to due process of law the same standard applies. . . . The burden on the defendant is to show that the prosecutor’s remarks were prejudicial in light of the entire proceeding. . . . The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. ...” (Citations omitted.)
The dispositive issue in Ubaldi was “whether we should grant a new trial in order to deter prosecutorial
It cannot fairly be said that there was any purposeful disregard of a trial court ruling in this case such as there was in Ubaldi where we recognized that “upsetting a criminal conviction is a drastic step, but it is the only feasible deterrent to flagrant prosecutorial misconduct in defiance of a trial court ruling. ” (Emphasis added.) State v. Ubaldi, supra, 571. Although the prosecutor in this case “persisted” in his remarks despite repeated objections by defense counsel, these objections were overruled and, therefore, his persistence was hardly in defiance of a trial court ruling. The issue of the prosecutor’s summation should, therefore, be decided under the due process analysis which we have “consistently applied.” State v. Ubaldi, supra. In my view, the majority has unnecessarily departed from our well established and consistently applied due process analysis.
The majority in this case has determined that certain improper remarks of the prosecutor were so egre
In taking their giant step from the impropriety of the prosecutor’s remarks and the concomitant overruling of the defendant’s objections to the conclusion that the defendant was denied his constitutional right to a fair trial, the majority, without any meaningful analysis of how the defendant has established that the prosecutor’s remarks denied him a fair trial, invokes Judge Learned Hand’s chilling regard of a jury’s ability to perform the “mental gymnastic” of actually disregarding certain matters when instructed to do so by the court. See Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932). The majority states that “[t]o suggest that an instruction would neutralize the prejudicial impact [of the prosecutor’s remarks] is to defy reality.”
I cannot conclude on this record that the prosecutor’s improper remarks were so prejudicial that they “grani
The question then comes down to this: In this case of overwhelming evidence of guilt did the prosecutor’s improper remarks cause substantial prejudice to the defendant so as to deprive him of his constitutional right to a fair trial?
“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); see Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982).
The prosecutor’s remarks, as already pointed out, were not in defiance of the trial court’s rulings. The trial court’s instructions to the jury concerning the prosecutor’s argument, although not given immediately, were forceful and clear.
Accordingly, I dissent.
At the conclusion of the charge, before the exceptions were taken, the trial court told the jury, inter alia: “Let me explain about exceptions. Counsel, all of them, have been most cooperative, and we have been over the charge together at length ahead of time so that many of what might have now been taken as objections or exceptions to my charge have been ironed out. And, I have accepted his, or his, or his recommendation. ... So, we sat down together and went over all of this.” Thereafter, the jury was excused and the exceptions taken.
I am now constrained, on December 18, 1984, to write the following addendum to my dissenting opinion, originally released on October 2,1984, because I note that the amendment now made to the majority opinion, at page 565, inserts the language: “Because the prosecutor’s remarks denied the defendant a fair trial in violation of both the federal and state constitution.”
Without analyzing whether the apparent ambiguity of the exact basis of the majority’s disposition of this issue is augmented by this amendment, I readily admit that I, like the majority, overlooked one significant matter in originally writing my dissent. I refer to the ground of the defendant’s claim as stated in his brief on the issue of the prosecutor’s summation. His appellate brief, at pages ii and 32, frames this claim as follows: “The prosecutor’s improper and inflammatory summation deprived the appellant of his fourteenth amendment right to due process of law.” There is nothing ambiguous about this claim as stated; it is specifically made, not under the Connecticut constitution, but rather under the United States constitution. Moreover, the defendant's brief on this issue does not disclose a single reference to our state constitution. The state’s appellate brief on the summation issue, which argues that the prosecutor’s summation was proper, responds to the defendant’s due process claim that was asserted under the fourteenth amendment of the federal constitution.
We have often said that a claim of error not briefed is considered to have been abandoned. See, e.g., State v. Perez, 183 Conn. 225, 228 n.3, 439 A.2d 305 (1981); State v. Ruiz, 171 Conn. 264, 265, 368 A.2d 222 (1976). We have pointed out that where a violation of the fourteenth amendment to the United States constitution was not claimed in the appellant’s preliminary statement of issues, in addition to not being briefed, that claim was not part of the appeal. Bencivenga v. Milford, 183 Conn. 168, 176 n.10, 438 A.2d 1174 (1981). This court has also determined that “[a]ssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court . . . [and] [t]his also applies to constitutional claims.” (Citations omitted.) Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982). Several months ago we invoked this well established practice in refus
There can be no question about a state court’s independent responsibility for its state constitutional law. Recently the United States Supreme Court reiterated: “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.” Michigan v. Long, 468 U.S. 1032, 1041, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), quoting Minnesota v. National Tea Co., 309 U.S. 551, 557, 60 S. Ct. 676, 84 L. Ed. 920 (1940). The statement that independent interpretation of state constitutional provisions is now well established does not require citation of authority. On the other hand, the determination by the majority that our state constitution has been violated without any such claim having been made not only subserves our well established appellate practice, but also in this case impermissibly exceeds any recognized right of independent interpretation of our state constitution.
In view of the fact that the majority has now amended its opinion, I maintain the position that this defendant’s right to a fair trial was not violated under either the federal or the Connecticut constitution.