State v. Pelletier

490 A.2d 515, 196 Conn. 32, 1985 Conn. LEXIS 738

Opinions

Peters, C. J.

The appeal of this defendant from his conviction of three counts of murder is governed by our decision in State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. , 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). The defendant, Lawrence Pelletier, Jr., like Donald Couture, was charged with the murder of three guards at the Purolator Armored Car garage in Waterbury. The defendant and Couture were tried together. In the defendant’s appeal, he, like Couture, raises a number of issues concerning the fairness of his trial. In light of our holding in State v. Couture, we need address only one of these issues, the propriety of the prosecutor’s summation.

We need not rehearse the prosecutorial remarks that the entire court found to be improper in State v. Couture. This court there concluded that “in his opening summation the prosecutor’s character assassination of the defendant so tainted the trial as to deny the defendant due process of law.” Id., 565. The prosecutor’s summation addressed, without distinction, the character of Couture and his codefendant, Pelletier, who is the defendant in this case.

The only issue before us is whether this defendant is entitled to a new trial, the relief that we ordered in State v. Couture, when his counsel did not object as extensively to the prosecutor’s remarks as did counsel for Couture. The state reminds us that in each instance where this defendant’s counsel took objection to the prosecutor’s remarks, the trial court agreed with the objection and took curative action. Counsel for this defendant did not expressly join in other objections by counsel for his codefendant Couture or in that counsel’s request for a mistrial, all of which the trial court denied.

Despite the defendant’s failure, at trial, to take proper exception to the prosecutor’s summation, the defendant’s claim of error is reviewable by this court. His appeal falls squarely within the second “exceptional circumstance” of the rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because he has raised a claim, adequately supported by the record, that he “has clearly been deprived of a fundamental constitutional right and a fair trial.” Indeed, one of the claims that we expressly held to be reviewable in State v. Evans was a claim of constitutionally impermissible comment in a prosecutor’s summation to the jury. Id., 71-73. Even if State v. Evans were not controlling, the failure by this defendant fully to challenge the conduct of the prosecutor at trial would not be dispositive, since his codefendant adequately alerted the trial court to the possibility of error in a timely fashion. See State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984).

We therefore hold that the summation by the prosecutor in this case, as in State v. Couture, violated the defendant’s right to due process of law under the fourteenth amendment to the United States constitution and under article first, § 8 of the Connecticut constitution. The defendant is entitled to a new trial.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion, Dannehy and Santaniello, Js., concurred.