Appendix — Connecticut v. Couture

y Office -Supreme Court, U.S.

- '

F s i ‘ E D

4-887

Supreme Court of the Gnited States

October Term, 1984

THE STATE OF CONNECTICUT,

Petitioner,

v.

DONALD COUTURE,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of Connecticut

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

CONNECTICUT

JOHN A. CONNELLY

State’s Attorney and Counsel of Record

WALTER H. SCANLON

Chief Assistant State’s Attorney

CATHERINE J. CAPUANO

Deputy Assistant State’s Attorney

300 Grand Street

P. O. Box 2157

Waterbury, CT 06722-2157

(203) 756-4431

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A - Decision of the

Connecticut Supreme Court la-43a

i(a)

APPENDIX A

STATE OF CONNECTICUT v. DONALD COUTURE

(11294)

PETERS, HEALEY, PARSKEY, GRILLO and MENT, Js.

Following his indictment by a grand jury, the defendant was tried

and convicted of the crimes of murder and of felony murder

arising out of a shooting incident at an armored car garage in

the city of Waterbury, which resulted in the deaths of three

guards. Missing from the garage after the incident was some

$1.8 million in cash and other property. On appeal by the

defendant to this court, held:

1. The defendant’s claim to the contrary notwithstanding, there

was, in the affidavit supporting the application for a warrant

to search his residence, a substantial basis from which the

issuing judge could conclude that the murder weapon would

be found there.

2. The seizure by the police, during the search of the defendant’s

residence, of some $800,000 in cash was valid under the plain

view doctrine; the defendant’s claim that the discovery of the

cash was not inadvertent and, thus, that the seizure was not

justified under the plain view doctrine, was unavailing since

inadvertence is not required if the property seized is contraband,

stolen property or property dangerous in itself.

3. Although the trial court erred in determing that the defendant

could not raise a due process challenge to the composition of

the grand jury, this court could not conclude that the under-

representation of Hispanics on grand juries in Waterbury,

which the defendant claimed required dismissal of the indict-

ment, was constitutionally significant.

4. This court could not consider the defendant’s claims that the

presence of his codefendants’ attorneys at the grand jury pro-

ceeding and their conduct while they were present required

la

dismissal of the indictment; the defendant did not object to

their presence and his use of the grand jury transcript in chal-

lenging their conduct is not authorized by the statute (§ 54-

45a) which limits the evidentiary uses of grand jury transcripts.

. There was no merit to the defendant's claim that because certain

allegedly exculpatory matter was withheld from the grand

jury the indictment should have been dismissed; none of that

matter, had it been before the grand jury, would have precluded

a finding of probable cause.

. The defendant’s claim that the trial court impermissibly

amended certain counts of the indictment and that his con-

victions on those counts should thus be reversed was unavail-

ing.

. The trial court erred both in overruling the defendant’s objec-

tions to certain improper remarks made by the prosecuting

attorney during his summation and in denying the defendant’s

motion for a new trial; the prosecutor’s deliberate, facially im-

proper, persistent and pronounced remarks which were dis-

paraging of the defendant's character, so tainted the trial as

to deny him due process »f law notwithstanding the trial court’s

cautionary instructions and the overwhelming evidence of the

defendant’s guilt.

(One judge dissenting)

. The trial court did not err in sentencing the defendant to three

consecutive terms of twenty-five years to life.

Argued May 9—decision released October 2, 1984

Indictment charging the defendant with the crimes, in count

four, of intentional murder and felony murder, in count five, of

felony murder and, in count six, of intentional murder and felony

murder, brought to the Superior Court in the judicial district of

Waterbury and tried to the jury before Hull, J.; verdict and judg-

ment of guilty in counts four and five, and verdict and judgment

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of guilty of felony murder in count six, and appeal by the defen-

dant to this court. Error; new trial.

John R. Williams, for the appellant (defendant).

Catherine J. Capuano, special assistant state’s attorney, and

Walter H. Scanlon, acting state’s attorney, with whom, on the

brief, was Francis M. McDonald, state’s attorney, for the appellee

(state).

PARSKEY, J. After a trial to the jury, the defendant was con-

victed 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 to

suppress certain evidence seized in violation of his rights under

the fourth amendment, (2) the composition of the grand jury

and the conduct of its proceedings; (3) the court’s unauthorized

amendment of the indictment; and (4) the prejudicial summation

of the prosecutor. The defendant also claims that the consecutive

sentences which the court imposed were illegal.

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 ex-

pended 30 caliber shell casings fired from two M-1 semi-automatic

carbines. The truck which Cody and West had driven from Hart-

ford 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

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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 warrant for Lawrence Pelletier’s telephone toll

records. The search warrants were issued very early on the morn-

ing of April 17 and they were executed shortly thereafter.

Found at Pelletier’s home where Pelletier and Evelyn Vega

lived were an attache case containing money, literature for a 30

caliber M-1 carbine and two expended shell casings ejected from

the same M-1 carbine fired at the murder scene. The weapon itself

and the robbery loot were not, however, at the Pelletier home.

The telephone tol! 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-1 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 AAO5518, bought for Pelletier, were

examined and compared with expended cartridge cases and bullets

found at the Purolater garage and with bullets recovered from the

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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 carbine. Bullets from the bodies of all three victims had

been fired from the Iver Johnson carbine and bullets from the

bodies of Leslie Clark and Edward Cody had been fired from the

Inland Marine weapon. Six bullet jacket fragments and one bullet

fired from the Inland Marine weapon were also found at the Puro-

lator garage, as well as two such fragments fired from the Iver

Johnson carbine. These bullets and fragments were bloody.

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 defen-

dant. 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 Water-

bury 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.

Sa

The jury heard evidence that when the police found the money

in Couture’s home one officer stated: “We found the money,”

at which time the defendant stated: “Anybody could have put it

in the basement,” although no one had stated where the money

had been found.

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.

6a

A

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 USS.

885, 99 S. Cr. 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 demon-

strate 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. 1979). That nexus “[does] not have to rest on direct

observation, but can be inferred from the type of crime, the nature

of the items sought, the extent of an opportunity for concealment

and normal inferences as to where a criminal would hide a

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[weapon] used in the commission of a murder.” Id.; see United

States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970); Malls v.

State, 278 Md. 262, 363 A.2d 491 (1976); Bollinger v. State,

556 P.2d 1035 (Okla. Crim. App. 1976).

The affidavit’ stated that on April 16, 1979, a murder and

robbery occurred at the Purolator Security office in Waterbury

and about 1.7 million dollars and other items were stolen. It

further stated that on that same day Patricia Dolphin, a friend of

Evelyn Pelletier, the live-in girl friend of Lawrence Pelletier, re-

lated to the affiant in specific detail chat the defendant and Lawrence

Pelletier planed, cased and participated in the Purolator robbery,

that they had gained access to the Purolator garage building using

. “AFFIDAVIT AND APPLICATION

SEARCH AND SEIZURE WARRANT

TO: A JUDGE OF THE SUPERIOR COURT

“The undersigned, being duly sworn, complains on oath that the under-

signed has probable cause to believe that certain property, to wit: .30 cali-

ber M1 carbine rifle Serial # AAo5518 or bearing another or no serial #,

magazines for said M1 carbine rifle, ammunition for said M1 Carbine rifle,

spent cartridge case or cases for said M1 Carbine rifle, spent projectiles

for said M1 carbine rifle, hacksaws, wrenches, wire cutters and fingerprints

of Donald Couture. 1973 Cadillac HT color grey, Ce. Reg. UG-1799, 1973

GMC pick up color green Cr. Reg CW3105: 1970 Mercury HT color

black Cr. 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 rob-

bery in the first degree. Sums of United States currency, jewelry, food

stamps, cancelled checks, checks, containers and or envelopes for said cur-

rency, jewelry, food stamps, cancelled checks, checks, which aggregated

1.7 million dollass.

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

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wire and bolt cutters, and that Pelletier borrowed the wire cutters

from a neighbor and stated to Dolphin that the cutters were needed

to cut the wires on the fence for the “job.” It also stated that the

type of weapon used in the murder of the three Purolator guards

was an M-1 carbine rifle, that on April 7, 1979, Dolphin, at

Evelyn Pelletier’s request, purchased an M-1 carbine rifle which,

according to a forensic ballistics expert had been used in the mur-

der, and that spent shell casings from such rifle were found at the

scene of the crime and matching casings were found, pursuant to

a search warrant, at Pelletier’s residence but that no carbine rifle

was found there. The affidavit did not mention the recovery of

any of the stolen money, but it did further state that Pelletier,

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:

“1. That on April 16, 1979 three guards of Purolator Security, Inc.,

were murdered and over 1.7 million dollars worth of US. Currency, jew-

elry, food stamps, cancelled checks and or checks were stolen in an armed

robbery at the Purolator Security armored garage at 20 Dunbar Lane,

Waterbury, Ce. The crime scene was observed by the affiants, C. 1. Griffin,

a Waterbury Police Officer directing the investigation and Special Agent

Raymond Looney of the F.B.1. coordinator with the F.B.1. Waterbury Police

“2. That on April 16, 1979 Patricia Campbell Dolphin came to the

police and related the following information to the affiants:

"3. That Mrs. Doiphin stated that she is a friend of Evelyn Pelletier

aka Evelyn Vega, who is the girlfriend of Lawrence J. Pelletier of 23 Car-

men St., Waterbury, Ct. lives with him and in whose name a 1970 Dodge

automobile bearing Ce. 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

M1 carbine rifle bearing S.N.AA05518, in Meriden for said Pelletier on

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according to Dolphin, customarily uses a 1970 green Dodge with

a black top, that this vehicle was observed by Detective Bouley at

the Pelletier premises on the evening of April 16, 1979, and that

the defendant, who had according to Dolphin participated with

Pelletier in numerous crimes in the past, had no police record.

The issuing magistrate, Henebry, J., found that there was probable

cause to believe that the items referred to in the affidavit would

be found either on the person of the defendant or at his residence

in Wallingford.

The crime occurred on April 16, 1979. The application and

affidavit were submitted to the issuing magistrate in the very early

hours of the next day. Included in the items stolen from Purolator

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 cart-

ridge 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 alhants by said McDonald.

“5. Thar within the past cwo 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 afhants.

“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

at night and left with a loud sounding truck 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.

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were almost two million dollars of U.S. currency. With that huge

amount of money to secrete, the magistrate could infer that the

perpetrators were faced with the elephant dilemma (where do

you hide an elephant?). An earlier search of the Pelletier resi-

dence uncovered neither the weapon nor the huge amount of stolen

money. That the search warrant, for whatever reason, did not

authorize a search for the money does not mean that the magis-

trate could not utilize the information and inferences respecting

the money in drawing an inference concerning the likely location

of the murder weapon. In these circumstances it was reasonable

for the issuing magistrate to infer that the money, because of its

bulk and because of the time constraints, would likely be stored

“7. That according to James McDonald, the high wire fence surround-

ing 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 cut-

ting tools.

“8. That according to Evelyn Pelletier aka Evelyn Vega, who so in-

formed Mrs. Dolphin the idea to commit the robbery arose during a break-

ing 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, Cr.,

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. Mc-

Donald, 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 by the perpetrators, wrenches were used to remove the fence bolts to

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at a convenient “safe” house. United States v. Lucarz, supra. It

is also a logical inference that a criminal who believes his identity

is concealed would utilize his residence as such a safe place;

Bollinger v. State, supra, 1039; not only for storage of the loot

but also as a temporary depository for the weapon used in the

crime. The magistrate could consider that the defendant had no

reason to suspect that, at that early stage, the investigative probe

would move in his direction. He had participated with Pelletier

in other crimes in the past and had remained unscathed. Although

with the passage of time the situation might change; United States

v. Charest, supra, 1018; at the time of the issuance of the warrant

ic was reasonable for the magistrate to infer that the defendant's

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 greer «itomobile with a black vinyl top, which according to Mrs.

Dolphin is used by Pelletier.

“14. According to Mrs. Dolphin, as told to the afhants, Pelletier 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 Pelletier to Mrs. Dolphin, had

done many other crimes with Pelletier. Both would call each other over

Pelletier’s telephone, whose number, often called by Mrs. Dolphin, is

Waterbury, 756-7335. Donald, Mrs. Dolphin related would often meet

Pelletier 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 re-

vealed a great number of calls to 269-0495 listed to Donald and Donna

Couture, 227 Hall Avenue, Wallingford, Ct. According to Mrs. Dolphin,

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residence was the logical place to conceal not only the fruits but

also the instrumentalities of the crime. 1 LaFave, Search and

Seizure, A Treatise on the Fourth Amentment § 3.7, p. 709. “In

considering the situation realistically, the logical inference is that

a criminal, who believes his identity has been concealed, would

return [the weapon] and property to his home. Such an inference

is not certainty, but a certainty is not required. And, we are of the

opinion that, at the least, a probability existed that the property

sought was indeed at the residence of the defendant.” Bollinger

v. State, supra, 1039.

State v. DeChamplain, supra, does not require a different result.

In that case, we held that the affidavit was insufficient to support

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 M1 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 Cr. Reg. CW-3105, a 1973

Cadillac HT color grey, Ct. Reg. VG-1799, are now registered to Donald

Couture, 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, Cr.

"19. That Mrs. Dolphin stated that during March 1979 she saw Donald

Couture driving a Cadillac.

"20. That James McDonald a forensic criminalistics 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. Mc-

Donald 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 Wall-

ingford, Cr. 269-0495 and had a listing in the September 1977 telephone

directory at 39 Martin Ave., Wallingford, Cr.

13a

Ae

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 build-

ing, 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 conclu-

sion that there was probable cause to believe that there was

marihuana in the apartment. Id., 530.

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.

“/s/ John Griffin Chief Insp.

Signed at Wtby., Conn. This 17 day of April, 1979.

“/s/ 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 War-

rant 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 Warrant, such probable cause being the following:

From said Affidavit and the undersigned finds that there is probable cause

for the undersigned to believe that the property described in the foregoing

14a

In DeChamplain there was not enough evidence connecting the

marihuana with the apartment. In the present case the affidavit

contained substantial facts from which the magistrate could con-

clude that there was probable cause to believe the weapon was

located in the defendant’s house. The magistrate knew from the

affidavit that a search of Pelletier’s house had not revealed the

money or the weapon. He also knew that the amount of money

was substantial and hence not easily disposed of. Further, the

magistrate knew that the defendant had no criminal record. From

this the magistrate could reasonably infer that the defendant be-

lieved his identity was unknown and that his house was at least

temporarily a secure place in which to store the money. These

Affidavie 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 here-

by command any Police Officer of a tegularly organized police department

or any State Policeman to whom these presents shall come within a rea-

sonable time after the date of this warrant to

Enter into or upon and search the place or thing described in the forego-

ing affidavit and application, to wit: premises at 227 Hali Avenue, Wall-

ingford, 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 Cr. Reg. CW-3105; and a 1970

Mercury HT color black bearing Cr. Reg. UG-3794 which is registered

to Donna Couture and the premises of Donald Couture at 39 Martin St.,

Wallingford, 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 M1

Carbine rifle, spent cartridge case or cases for said M1 carbine rifle, spent

projectiles for said M1 carbine rifle, hacksaws, wrenches, wire cutters and

15a

reasonable inferences would have sufficed to establish probable

cause to believe that the money would be found at the defendant's

home. In contradistinction to DeChamplain, therefore, the de-

fendant’s residence was factually implicated in the defendant's

criminal activity.

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 defen-

dant 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

fingerprints of Donald Couture. 1973 Cadillac HT color grey, Ct. Reg.

UG-1799; 1973 GMC pickup color green Cr. Reg. CW-3105; 1970 Mer-

cury 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

Donald Couture, Cadillac bearing Cr. Reg. VG-1799, 1973 GMC pickup

green Cr. 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 RE-

QUIREMENT, PURSUANT TO P.A. 76-155, CONCERNING THE

DELIVERY OF APPLICATIONS FOR AND AFFIDAVITS IN SUP-

PORT 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.

16a

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 es-

pecially compelling, at least in those cases where the perpetrator

is unaware that the victim has been able to identify him to the

police.” 1 LaFave, Search and Seizure, supra.

In reviewing the sufficiency of an affidavit for a search warrant

we do not conduct a de novo review. Illinois v. Gates, US.

, 103 S. Ct. 2317, 76 L. Ed. 24527, reh. denied, US. ,

104 S. Cr. 33, L. Ed. 2d (1983). Rather, the traditional

standard of review is whether the magistrate had a substantial basis

for concluding that a search would uncover evidence of wrong-

doing. 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

“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 PRO-

HIBITED FROM BEING DISCLOSED BY CHAPTER 959a.

“SIGNED /s/ John Griffin C. Insp.

/s/ Raymond M. Looney

Special Agent, FBI”

“4/17/79

“THE FOREGOING APPLICATION IS GRANTED

JFH

“/s/ Henebry, J.

JUDGE”

17a

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 resi-

dence pursuant to a valid search warrant the next question is

whether they were justified in seizing the money which was ob-

served in a number of transparent bags. The defendant argues

that under Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct.

2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26,

30 L. Ed. 2d 120 (1971), the police could seize under the plain

view doctrine only articles which they came upon inadvertently

and that the money was not in that category, since in their applica-

tion they sought permission to search for the money but that the

warrant contained no such authority. While it is true that seizure

of items in plain view is limited to those items which police come

upon inadvertently, inadvertence is not required if the items seized

fall under the category of contraband, stolen property or objects

dangerous in themselves. See Coolidge v. New Hampshire, supra,

466; United States v. Liberti, 616 F.2d 34, 38 (2d Cir. 1980)

(Newman, J. concurring); State v. Gold, 180 Conn. 619, 649,

431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L.

Ed. 2d 148 (1980). The seizure of the seven bags of U.S. currency

was valid.

2 Because of our holding that the warrant was supported by probable

cause, we need not decide whether the good faith exception to the exclu-

sionary rule, recently announced in United States v. Leon, US.

(52 US.L.W. 5155, July 5, 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 arti-

cle first, § 7 of the Connecticut constitution.” State v. Delmonaco, 194

Conn. 331, 334 4, A.2d (1984).

18a

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;*

(2) the presence and participation of unauthorized persons in the

grand jury proceedings; and (3) the withholding of allegedly

exculpatory evidence from the grand jury. The trial court, Pickett,

J., denied the motion and the defendant assigns this as error.

A

CHALLENGE TO GRAND JURY ARRAY

The defendant claims that the underrepresentation of Hispanics*

on grand juries in the judicial district of Waterbury violated his

rights to equal protection and due process as provided by the feur-

teenth amendment to the United States constitution and as a result

3 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, US.

(52 US.L.W. 5001, 5003, July 2, 1984), the court held: “No one per-

sox: can possibly represent all the ‘qualities of human nature and varieties

of human experience,’ [ Peters v. Kiff, 407 U.S. 493, 503, 92 S. Cr. 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.) Accord-

ingly, 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 chat this claim

should be considered apart from the challenge to the entire grand jury.

4 The defendant's claims of underrepresentation of other groups, not

having been briefed, are considered abandoned. Kiniry v. Danbury Hos-

pital, 183 Conn. 448, 449, 439 A.2d 408 (1981).

19a

the indictment should have been dismissed. In support of his claim

the defendant presented the following relevant evidence. During

the period of January 1, 1973, until June 6, 1979, the date of the

defendant’s indictment, there were thirty-four grand juries in the

judicial district of Waterbury. Of the 612 grand jurors composing

the array, only six or .98 percent were Hispanic. The Hispanic

population during the relevant period constituted 4.5 percent of

the population of the judicial district of Waterbury.°

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 amendment have not been made applicable to the states

by the due process clause; Hurtado v. California, 110 US. 516,

4 §. Ct. 111, 28 L. Ed. 232 (1884); and therefore any right to a

representative grand jury applies only to federal grand juries. Con-

sequently, the court did not reach the issue of whether the disparity

between the percentage of Hispanics in the population and their

representation on the array was constitutionally significant.

We agree with the trial court that the defendant’s equal pro-

tection 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 C. Ct. 1272, 51 L. Ed. 2d 498 (1977). We do not agree,

however, that the defendant is precluded from raising a due pro-

cess challenge.

S 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 con-

tested,

20a

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. Cr. 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. Cr. 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]

[s]tate 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 selec-

tion procedures cast doubt on the integrity of the whole judical

process.” Though this holding commanded only three votes,® it

has never been overruled. Indeed, its vitality has most recently

been affirmed in Hobby v. United States, US. (52 US.

L.W. 5001, 5003, July 2, 1984).

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, A.2d (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).

6 Three justices relied on 18 U.S.C. § 243 which imposes criminal penal-

ties for racial discrimination in the selection of grand or petit jurors. Peters

v, Kiff, 407 US. 493, 505-507, 92 S. Cr. 2163, 33 L. Ed. 2d 83 (1972)

(White, j., concurring).

2la

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);7

State v. Acosta, 125 Ariz. 146, 608 P.2d 83 (1980); Common-

wealth v. Bastarache, 414 N.E.2d 984 (Mass. 1980). The clear

weight of authority is, however, to the contrary. Sec, e.g., Obregon

v. United States, 423 A.2d 200 (D.C. App. 1980), cert. denied,

452 US. 918, 101 S. Ce. 3054, 69 L. Ed. 2d 422 (1981); Colvin

v. Commonwealth, 570 S.W.2d 281 (Ky. 1978); State v. Law-

rence, 351 So. 2d 493 (La. 1977); Adler v. State, 594 P.2d 725

(Nev. 1979); State v. Porro, 158 N.J. Super. 269, 385 A.2d

1258 (1978); People v. Guzman, 60 N.Y.2d 403, 409 n.3, 457

N.E.2d 1143, 469 N.Y.S.2d 916 (1983), cert. denied, US.

, 104 S. Ce. 2155, L. Ed. 2d (1984); State v. Bowen,

45 Or. App. 17, 607 P.2d 218 (1980); State v. Jenison, 405

A.2d 3 (R.L 1979); Post v. State, 580 S.W.2d 801 (Tenn. Crim.

App. 1979). We hold that the defendant's due process challenge

to the composition of the grand jury is cognizable. Accordingly,

we will consider the merits of that claim.

In State v. Castonguay, 194 Conn. 114, 421-22, A.2d

(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

7 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 petic jury, in-

volves 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 US. 947, 96 S, Ce. 1419, 47

L. Ed. 2d 354 (1976).

22a

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 US. 357],

364, (99 S. Cr. 664, 58 L. Ed. 2d 579 (1979)]. Once the de-

fendant has established this prima facie case, the burden then shifts

to the state to prove that the selection system resulting in a non-

representative 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.

It is in the second element, proof of substantial underrepresen-

tation; State v. Castonguay, supta, 425-26; State v. Haskins, 188

Conn. 432, 440, 450 A.2d 828 (1982); that the defendant fails.

In Castonguay, supta, 427-30, we examined various methods used

to describe and evaluate underrepresentation. We concluded that

in a due process challenge where the distinct group constitutes a

small percentage of the population in the community, the most

accurate method is the substantial impact test. “Its focus is not on

numbers and percentages but rather on whether the underrepre-

sentation substantially affects the composition of the grand jury.”

Id., 430. When we apply that method to this case, the defendant

cannot prevail.

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-cight Hispanics (4.5 percent of 612). The

array included six Hispanics. Hispanics were therefore underrepre-

sented 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’ dis-

parities or ‘substantial’ departures from a ‘fair cross section’ re-

quire judicial intervention”; United States v. Test, 550 F.2d 577,

23a

590 (10th Cir. 1976); we cannot conclude that this underrepre-

sentation 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 during the taking of testimony. The court

ruled that any of the accused called as a witness had the right to

an attorney's presence during the time he or she was testifying,

but none of the defendant's attorneys would otherwise be permitted

to attend the proceedings. The court explicitly instructed the grand

jury: “In the event that any of the accused is called as a witness,

your foreman or forelady shall instruct that person that he or she

has a right to remain silent, right to consult and have an attorney

present and a right to stop answering any questions at any time

without giving any reason... . If an attorney is present, he shall

not participate in the questioning but rather be present for the sole

purpose of conferring with his or her client. When the witness

has finished testifying counsel shall be excused from the Grand

Jury room.” The defendant did not object to this instruction.

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 attor-

neys, 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

24a

Es

urges us to adopt a per se rule similar to that in the federal courts;

see, e.g., United States v. Phillips Petroleum Co., 453 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 failed to preserve

properly this claim for appeal. Though he had ample opportunity

to do so, at no time did the defendant object to the trial court's

decision to permit the attorneys’ presence. Practice Book § 288.

The issue of who is authorized to be present in the grand jury

room is a matter of practice embodied in Practice Book § 609.®

It does not implicate a fundamental constitutional right. Conse-

quently, the defendant, having failed to object below, cannot claim

error on appeal. See Practice Book § 3063.

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.? This he cannot do.

& 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.”

9 Art the hearing on the motion to dismiss, Attorney Rosen conceded

that he questioned his cliente but was precluded from testifying to the

substance of that questioning.

25a

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 state-

ments 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, 187 Conn. 281, 287, 445

A.2d 895 (1982), we construed the substance’? of this statute

strictly and concluded that a defendant may not prevail on claims

of error that depend on the unauthorized use of the grand jury

transcript. Because the defendant's use of the grand jury transcript

is not authorized by the statute we cannot consider this claim."'

Cc

EVIDENCE NOT PRESENTED TO THE GRAND JURY

The state and the defendant have stipulated that certain infor-

mation'* was withheld from the grand jury. The defendant claims

that it was exculpatory and that because it was withheld from the

grand jury his indictment should be dismissed. There is no merit

to this claim.

10 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).

11 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.

12 “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

26a

Since the grand jury does not consider the guilt or innocence

of the accused but only determines whether he or she should stand

trial, the accused “is not allowed to testify or to introduce evidence

tending to prove his innocence except insofar as his questioning

of the state’s witnesses may disclose the weakness of the state’s

case.” State v. Menillo, 159 Conn. 264, 274-75, 268 A.2d 667

(1970); State v. Stepney, 181 Conn. 268, 274, 435 A.2d 701

(1980), cert. denied, 449 U.S. 1077, 101 S. Ct. 856, 66 L. Ed.

2d 799 (1981). The purpose of the grand jury is not to duplicate

the trial but rather to satisfy itself that “there is probable cause to

believe that the accused is in danger of conviction of ‘the crime

charged].” State v. Menillo, supra, 275.

The Connecticut grand jury system is almost unique in that

the state’s role in the proceedings is minimal. The state’s attorney

payments from the United States Government and had been relocated at

Government expense under the witness protection program.

"C. 1. Before any statement was taken from Donna Couture and before

she appeared as a witness before the Grand Jury, the State made the fol-

lowing 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,

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 invelvement 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 follow-

ing 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

27a

is not permitted in the grand jury room and his task is confined to

submitting to the grand jury a list of witnesses who he believes

will testify in support of the indictment. The grand jury is not at

all bound by this list. Id., 276; see Lung’s Case, 1 Conn. 428

(1815); Practice Book § 614. The defendant, with the court's

permission, is allowed in the room during the presentation of

evidence; Practice Book § 609; and can question the witnesses.

Thus, unlike in the federal system and in other states, the grand

jury is not dependent on the state’s attorney for both advice and

information. See, e.g., United States v. Ciambrone, 601 F.2d 616,

622 (2d Cir. 1979); Frink v. State, 597 P.2d 154 (Alaska 1979).

Consequently, in the absence of a request by the grand jury, the

state is not obligated to present the grand jury with every piece of

relevant 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 respect to this case. We will, however, seek the felony murder in-

dictment 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 agree-

ment entered into berween the State and Miss Vega at this time.’

“D. The witness Patricia Dolphin had, previous to her testimony des-

cribed 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.”

28a

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 in-

formation and conclude that none of it would have precluded a

finding o: 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 should be dismissed. Count five’? initially

charged the defendant both with intentional and felony murder

of guard Edward Cody. Because the indictment did not contain

an allegation that the defendant intended to cause Cody’s death,

at an earlier stage of the proceedings, that part of the indictment

13 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

/s/ Gerald M. Noonan

Foreman

June 6, 1979.”

29a

was dismissed. Count six'* charged the defendant both with in-

tentional and felony murder of William West. The jury found the

defendant guilty of felony murder in counts five and six and not

guilty of intentional murder in count six.

General Statutes § 53a-54a'> in subsection (a) defines inten-

14 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 rob-

bery 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

/s/ Gerald M. Noonan

Foreman

June 6, 1979.”

1S [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, men-

tal defect or other mental abnormality is admissible, in a prosecution under

30a

int tots

tional murder. Section 53a-54c'® defines felony murder. Sub-

section (c) of § 53a-54a prescribes the punishment for both

intentional and felony murder. It is, therefore, proper in an in-

dictment for felony murder to allege violation of §$ 53a-54c and

53a-54a (c). See State v. Derrico, 181 Conn. 151, 153, 434 A.2d

356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed.

2d 607 (1980). The fact that the indictment alleged violation

of § 53a-54a without specifically alluding to subsection (c) is of

no consequence. “The language of an indictment serves two pri-

mary purposes: it informs the accused of the nature of the crime

charged and it acts as a bar to future criminal proceedings on the

same cause.” State v. Cofone, 164 Conn. 162, 167, 319 A.2d

381 (1972). An indictment charging an accused with intentional

and felony murder of a particular victim charges a single offense,

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 sub-

division (2) of section 53a-35a unless it is a capital felony.”

16 “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.”

3la

committed conjunctively in two different ways. Id., 166; State v.

Edwards, 163 Conn. 527, 532, 316 A.2d 387 (1972). Counts

five and six initially charged both intentional and felony murder.

Under such counts the jury may convict if it finds that the murder

was committed in either or both of the ways alleged. When the

first part of count five was dismissed the second part charging the

defendant with felony murder remained. The defendant was on

proper notice of the offense with which he was charged.

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 defendant and his codefendant,

” ac

characterizing them, inter alia, as “murderous fiends,” “rats,”

“utterly merciless killers” and “inhumane, unfeeling and repre-

hensible creatures.” The defendant’s repeated objections to these

remarks on the defendant’s character were overruled and his re-

quests for curative instructions were denied. At the conclusion of

this opening summation, the defendant moved in the alternative

for a mistrial or for the court to strike Scanlon’s entire summation

32a

or those portions which the defendant recited on the record,'”

together with “the strongest possible instructions to the jury to

disregard all such comments.” The trial court denied the motion

but at the conclusion of its instructions to the jury stated the fol-

lowing: “I specifically charge you not to be inflamed by the pas-

sionate nature of State’s Attorney Scanlon’s argurnent or by his

repeated personal comments on the defendants. The defendants’

character is not in issue. With respect to Mr. Scanlon’s argument

before you, I specifically charge you that you are not to consider

any personal observations of his as to the guilt or innoc.1se of the

defendants, or as to the credibility of any witness.” '®

In State v. Carr, 172 Conn. 458, 470, 374 A.2d 1107 (1977)

we stated “that a prosecutor should avoid arguments which are

17 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, des-

picable 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.”

18 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.

33a

calculated to influence the passions or prejudices of the jury, or

which would have the effect of diverting the jury’s attention from

their duty to decide the case on the evidence.” Measured against

this standard Scanlon’s argument was improper. “It is no part

of a district attorney's duty, and it is not his right, to stigmatize a

defendant. He has a right to argue that the evidence proves the

defendant guilty as charged in the indictment, but for the district

attorney himself to characterize the defendant as ‘a cold-blooded

killer’ is something quite different. No man on trial for murder

can be officially characterized as a murderer or as ‘a cold-blooded

killer, until he is adjudged guilty of murder or pleads guilty to

that charge.” (Emphasis in original.) Commonwealth v. Capalla,

322 Pa. 200, 204, 185 A. 203 (1936).

But that is not the end of the inquiry. Because the right im-

plicated 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. “[TJhe 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 US.

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 could remove their prejudicial impact. If the charac-

terization of the defendant consisted of an isolated remark we

would conclude that the potential prejudicial impact on the jury

could be obviated by a curative instruction. But here, where the

prosecutor persisted in his invective and the defendant’s repeated

objections were overruled, the jury could only be left with the

impression that the comments were proper. To suggest that an

34a

rere

instruction would neutralize the prejudicial impact is to defy reality.

“Not even appellate judges can be so naive as really to believe

that all twelve jurors succeeded in performing what Judge L. Hand

aptly called ‘a mental gymnastic which is beyond, not only their

powers, but anybody’s else.’ Nash v. United States, 54 F.2d 1006,

1007 (2d Cir. 1932).” United States v. Bozza, 365 F.2d 206,

215 (2d Cir. 1966).

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 inno-

cence. “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 with-

out 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. Cr. 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 neces-

sarily depends on its own facts and circumstances. If the challenged

remarks occurred in the heat of a summation, if they were only

isolated or brief episodes in a lengthy summation and if they were

followed by a curative instruction, the weight of the evidence

against the defendant could be a significant factor in upholding his

conviction. See annot. 40 L. Ed. 2d 886, Due Process-Prosecutor’s

Statements. But here the prosecutor’s prepared remarks were de-

liberate, facially improper, persistent and pronounced. In these

circumstances the prosecutor’s assertion that because of the strong

evidence of the defendant’s guilt his remarks should be found

harmless has a hollow ring. “[A]ppeals to passion and prejudice

may so poison the minds of jurors even in a strong case that an

35a

accused may be deprived of a fair trial.” United States v. Socony-

Vacuum Oil Co., 310 US. 150, 240, 60 S. Ce. 811, 84 L. Ed.

1129, rch. denied, 310 U.S. 658, 60 S. Cr. 1091, 84 L. Ed. 1421

(1940). The prosecutor cannot pollute the waters and then claim

that we should ignore his actions because the fish are not worth

saving. Given the egregious nature of the prosecutor's remarks,

a failure on our part to reverse the defendant's conviction would

suggest that in a strong case the defendant is not entitled to a fair

trial and therefore anything goes. We conclude that in his open-

ing summation the prosecutor's character assassination of the de-

fendant so tainted the trial as to deny the defendant due process

of law.

Article first, § 8 of the Connecticut constitution provides that

“Lalo 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)

“[bly 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 force-

ful, but fair, because he represents the public interest, which de-

mands no victim and asks no conviction through the aid of passion,

prejudice, or resentment.” The trial court erred not only in over-

tuling the defendant's objections to the prosecutor's improper re-

marks but also in denying the defendant's motion for a new trial.

Vv

CONSECUTIVE SENTENCES—FELONY MURDER

The defendant was convicted of both the intentional and the

felony murder of Leslie Clark and of the felony murder 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

36a

fifth amendment to the United States constitution. We do nor

agree with the defendant's position in either respect.

Felony murder is a crime against the person. General Statutes

§ $3a-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 par-

ticipant . . . 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 cssential 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 conduct of another. People are neither

fungible nor amorphous. Where crimes against persons are in-

volved, a separate interest of society has been invaded for cach

violation. Therefore when two or more persons are the victims

of a single episode there are as many offenses as there are victims.

State v. Gunter, 132 Ariz. 64, 70, 643 P.2d 1034 (1982); State

v. Irvin, 603 $.W.2d 121 (Tenn. 1980); Vigil v. State, 563 P.2d

1344, 1351 (Wyo. 1977). As the Wyoming Court so aptly

stated in Vigil, (at p. 1351): “Ie must be noted that ‘any human

being’ is in the singular and there is no indication that the defen-

dant can get a bargain rate if he assaults a group of human beings.”

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 US. 711,717,

89 S. Ce. 2072, 23 L. Ed. 2d 656 (1969). “With respect to

cumulative sentences imposed in a single trial, che Doubie Jeopardy

Clause does no more than prevent the sentencing court from

prescribing greater punishment than the legislature intended.”

Missouri v. Hunter, 459 US. 359, 366, 103 S. Ce. 673, 74 L. Ed.

37a

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.

ARTHUR H. HEALEY, J., 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 prosecutor's remarks to be improper and unbecoming

a representative of the state who, by virtue of his office, has the

privilege of addressing the jury. “Cases brought on behalf of the

(state of Connecticut) should be conducted with a dignity worthy

of the client.” United States v. Sober, 281 F.2d 244, 251 (3d

Cir.) (Biggs, C.J., and Hastie, J., concurring), cert. denied, 364

US. 879, 81 S. Ce. 167, 5 L. Ed. 2d 101 (1960); see United

States v. Benter, 457 F.2d 1174, 1177 (2d Cir.), cert. denied,

409 U.S. 842, 93 S. Ce. 41, 34 L. Ed. 2d 82 (1972). Further,

I believe that the trial court, in view of the plaintiff's objections,

should have ruled the prosecutor's remarks improper and should

have given an immediate curative instruction. The analysis of

whether a defendant in such circumstances is denied a fair trial,

however, does not stop with these conclusions.

The defendant's claim is unquestionably aimed at a denial of

his right to due process and a fair trial. Juse last year in State v.

Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied,

US. , 104 S. Ce. 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 co the court that as a result of some

occurrence during trial a party has been deprived of the oppor-

tunity for a fair trial. ... When a mistrial is sought on the ground

that a prosecutor's improper remarks violated the defendant's con-

stitutional right to due process of law the same standard applies.

..» The burden on the defendant is to show that the prosecutor's

38a

aii

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 misconduct which de-

liberately circumvents trial court rulings. .. .” (Emphasis added. )

Id., 569. Significantly, alchough we concluded that the prosecu-

torial misconduct in Ubaldi required a new trial in the absence of

the showing of prejudice to the defendant, we reached that con-

clusion through the invocation of our supervisory powers. It is

only in the context of circumstances such as those presented in

Ubaldi which demand the exercise of our supervisory power that

prosecutorial misconduct may require a new trial without a show-

ing of prejudice to the defendant. Indeed, we expressly stated in

Ubaldi that “(we are not. . . abandoning the due process analysis

we have consistently applied to constitutional claims of prosecu-

torial misconduct not involving purposeful disregard of a ruling,

which requires the defendant to prove that he was deprived of a

fair trial as the result of the misconduct in order to secure a new

trial.” (Emphasis added.) Id., 575.

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 prose-

cutorial misconduct in defiance of a trial court ruling.” (Empha-

sis 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 tria! 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.

39a

The majority in this case has determined that certain improper

remarks of the prosecutor were so egregious that no curative in-

struction could remove their prejudicial impact and, therefore, the

defendant was denied a fair trial. This is so, according to the

majority, because the prosecutor persisted in his improper remarks

and the defense counsel’s objections were overruled, thus leaving

the jury with the impression that the remarks were proper despite

the trial court’s subsequent forceful curative instruction. In doing

so, the majority has taken a quantum leap from the impropriety

of the remarks to the conclusion that the defendant is entitled to

a new trial without any meaningful analysis as to how the defen-

dant was prejudiced to such a degree that he was denied his con-

stitutional right to a fair trial. “The law is not indifferent to con-

siderations of degree.” Schechter Poultry Corporation v. United

States, 295 U.S. 495, 554, 55 S. Ct. 837, 79 L. Ed. 1570 (1935)

(Cardozo, J., dissenting and concurring.) A conclusion that a

prosecutor's remarks are egregiously improper does not, a fortiori,

mean that a defendant is ipso facto entitled to a new trial where

the trial court did not consider the remarks to be improper or

calling for immediate action by the court. 4

In taking their giant step from the impropriety of the prose-

cutor’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 mean-

ingful analysis of how the defendant has established that the prose-

cutor’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.”

In thé context of this case, I cannot subscribe to the majority's

“defy reality” rationale and I dissociate myself from their cynical

view of the ability of the jury in this case to winnow the wheat

; 40a

that constitutes the evidence from the chaff that comes from the

prosecutor s improper remarks. Indeed, even Judge Hand, in the

very case in which he indulged in his “mental gymnastic” charac-

terization of the inability of jurors to follow certain instructions,

conceded that a direction to the jury to disregard certain matters

“probably furthers, rather than impedes, the search for truth ... .”

Nash v. United States, supra; see Bruton v. United States, 391

US. 123, 135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). More-

over, this court has taken the position that “Lilt is essential to any

orderly trial that the jury be presumed, in the absence of a fair

indication to the contrary, to have followed the instructions of the

court as to the law.” State v. Bausman, 162 Conn. 308, 314, 294

A.2d 312 (1972); State v. Barber, 173 Conn. 153, 157, 376 A.2d

1108 (1977); State v. Coleman, 167 Conn. 260, 268, 355 A.2d

11 (1974); State v. Smith, 156 Conn. 378, 383, 242 A.2d 763

(1968). The majority does not point to anything in the record

to show that this well settled principle should not apply in this

case where a forceful curative instruction was given to the jury

before it began its deliberations. It must be remembered that

“[uJnless we proceed on the basis that the jury will follow the

court’s instructions where those instructions are clear and the cir-

cumstances are such that the jury can reasonably be expected to

follow them, the jury system makes little sense.” Delli Paoli v.

United States, 352 U.S. 232, 242, 77 S. Ct. 294, 1 L. Ed. 2d 278

(1957); Bruton v, United States, supra. That makes good sense

to me here particularly where the record shows nothing to the

contrary.

I cannot conclude on this record that the prosecutor’s improper

remarks were so prejudicial that they “granitized” the jury into a

fixed position against the defendant leaving it unable to render a

true verdict on the law and the evidence in keeping with the juror’s

oath. Reasonably viewed, even the human and practical limitations

of the jury system does not justify the majority's cautious silence

that this jury just could not and did not follow the trial court's

instructions and decide this case solely on the law and the evidence.

In Mapp v. Ohio, 367 U.S. 643, 657, 81 S. Ct. 1684, 6 L. Ed. 2d

4la

1081 (1961), the United States Supreme Court said that “[t]here

is no war between the Constitution and common sense.” I have

grave concerns when I place that statement alongside the major-

ity’s view that this judgment must be set aside and a new trial

ordered. It must not be overlooked that this case was not a “thin

case” such as that in State v. Binet, 192 Conn. 618, 473 A.2d 1200

(1984). This case was one where the jury was presented with

overwhelming evidence of guilty. While this does not and should

not, in and of itself, operate to erase the impropriety of the prose-

cutor’s remarks, it does “defy reality” for the majority aggressively

to dilute the significance of that factor in assessing whether those

remarks were so prejudicial that the defendant was denied a fair

trial in the light of the entire proceeding.

The question then comes down to this: In this case of over-

whelming 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?

“[TJhe touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not the culpa-

bility 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 US. 83, 87, 83 S. Ce. 1194, 10 L. Ed. 2d 215 (1963); State

v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982).

The aim of due process “‘is not punishment of society for the

misdeeds of the prosecutor but avoidance of an unfair trial to the

accused.’” Smith v. Phillips, supra, 219, quoting Brady v. Mary-

land, supra. “As applied to a criminal trial, denial of due process

is the failure to observe that fundamental fairness essential to the

very concept of justice. In order to declare a denial of iy we must

find that the absence of that fairness fatally infected the trial; the

acts complained of must be of such quality as necessarily prevent

a fair trial.” Lisenba v. People of the State of California, 314 US.

219, 236, 62 S. Ct. 280, 86 L. Ed. 166(1941), reh. denied, 315

US. 826, 62 S. Ct. 620, 85 L. Ed. 122 (1942).

42a

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.’ The record provides

no basis and the majority offers no reasoning which could demon-

strate that the jury could not and did not follow these instructions.

Moreover, the prosecutor’s remarks at issue are the only prose-

cutorial misconduct complained of during this long trial. Signifi-

cantly, the state’s case against the defendant was so overwhelming

that the jury in all probability would have returned a verdict of

guilty on the law and the evidence even if the prosecutor had not

made his improper remarks. It seems to me that it is proper to

ask what effect the improper remarks had or may reasonably be

taken to have had upon the jury and its decision; that is the effect

on the minds of twelve other people, not ours, viewed in light

of the entire trial and not in isolation. Even weighing how others

might react, we still cannot weigh our appellate reaction without

at least conceding, absent some definite contrary indication, that

this jury was capable of acting reasonably. I believe they were so

capable. I must therefore conclude that this record does not

demonstrate that prejudice which would enable me to conclude

that this defendant was deprived of his constitutional right to a

fair trial under either the United States or Connecticut constitu-

tions. I would find no error on this appeal.

Accordingly, I dissent.

1 At the conclusion of the charge, before the exceptions were taken, the

trial court told the jury, inter alia: “Let me explain about exceptions. Coun-

sel, 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.

43a