State v. Pelletier

• Decision Date: 10 January 1989
• Docket Number: No. 13161,13161
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lawrence J. PELLETIER, Jr.

Page 805

552 A.2d 805

209 Conn. 564

STATE of Connecticut v. Lawrence J. PELLETIER, Jr.

No. 13161.

Supreme Court of Connecticut.

Argued Oct. 6, 1988.

Decided Jan. 10, 1989.

Kent Drager, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

John O'Meara, Deputy Asst. State's Atty., with whom, on the brief, were Walter Scanlon, Chief Asst. State's Atty., and Patricia King, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ. COVELLO, Justice.

After a jury trial, the defendant, Lawrence J. Pelletier, Jr., was found guilty of three counts of murder in the shooting deaths of three guards at the Purolator Armored Car Garage in Waterbury. ¹ The defendant appealed his conviction and we ordered a new trial. State v. Pelletier, 196 Conn. 32, 490 A.2d 515 (1985) (Pelletier I ). On remand, the defendant was convicted of three counts of felony murder in violation of General Statutes § 53a-54c; and sentenced to a term of incarceration of twenty-five years to life on each count, to run consecutively, for a total effective sentence of seventy-five years to life imprisonment.

The defendant appeals his conviction claiming that the trial court erred in: (1) denying his motion to transfer the prosecution; (2) denying his motion to excuse for cause certain prospective jurors; (3) denying his motion to suppress evidence found in his home; (4) instructing the jury on alternative theories of criminal liability for which there was no evidence or insufficient evidence; (5) refusing to give his requested instruction on intoxication and lesser included offenses; (6) depriving him of his right to confrontation by admitting the hearsay statement of a codefendant; (7) refusing to allow him to present evidence of a potential third party culprit; and (8) imposing three separate punishments for three felony murder convictions based on the same underlying felony. The defendant further claims that: (9) his second trial was barred by double jeopardy because of intentional prosecutorial misconduct at his first trial; (10) the grand jury indictment was improper because of the underrepresentation of hispanics on the grand juries in the Waterbury judicial district and the presence and participation of unauthorized persons in the grand jury room during those proceedings; (11) prosecutorial misconduct in the state's closing summation to the jury deprived him of a fair trial; and (12) he was denied his right to a speedy trial. We find no error.

I

We observe at the outset that the defendant has launched a wholesale attack on every aspect of this prosecution and some aspects of the preceding prosecution which this court has already disposed of in Pelletier I. This torrent of claimed error, including an issue that the defendant himself has directed to be argued, ² serves neither the ends of justice nor the defendant's own purposes as possibly meritorious issues are obscured by the sheer number of claims that are put before us.

" 'Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue] ... [M]ultiplying assignments of error will dilute and weaken a good case and will not save a bad one.' Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951)." Jones v. Barnes, 463 U.S. 745, 752, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983).

" 'Most cases present only one, two, or three significant questions.... Usually ... if you cannot win on a few major points, the others are not likely to help.... The effect of adding weak arguments will be to dilute the force of the stronger ones.' R. Stern, Appellate Practice in the United States 266 (1981)." Jones v. Barnes, supra. ³

II

The jury might reasonably have found that on April 16, 1979, three guards, Leslie Clark, Edward Cody and William West, were shot to death at the Purolator Armored Car garage in Waterbury. Upon investigation police found that the exterior and interior of the garage were littered with twenty-four expended .30 caliber shell casings fired from two M-1 semi-automatic carbines. More than $1.7 million in cash, jewelry, food stamps and checks were missing. During their investigation the police spoke with a witness who claimed to have purchased an M-1 semi-automatic carbine for the defendant. The witness further stated that the defendant had discharged the weapon in the basement of his home at 23 Carmen Street in Waterbury. Based on this information the police obtained a search warrant for the defendant's home. In executing that warrant the police found two cartridge cases and some literature on the M-1 rifle. This material served as the basis for a subsequent search of a codefendant's house where the police later found two M-1 carbines along with the stolen property. The defendant was subsequently arrested and convicted of three counts of felony murder.

III

The defendant first claims that the trial court erred in denying his pretrial motion to transfer the prosecution. The defendant argues that he was denied his right to a fair trial because the publicity surrounding the case was so pervasive that it was impossible for him to empanel an impartial jury. "The determination of whether a transfer of prosecution is necessary is a matter ordinarily entrusted to the sound discretion of the trial court. Nevertheless, 'due to the grave constitutional implications attending such pretrial rulings, "appellate tribunals have the duty to make an independent evaluation of the circumstances." Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, [1522], 16 L.Ed.2d 600 [1966].' State v. Piskorski, [177 Conn. 677, 685-86, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979) ]." State v. Miller, 202 Conn. 463, 477, 522 A.2d 249 (1987). After a review of the record, we conclude that the publicity attending this case did not deprive the defendant of an impartial jury and a fair trial. Therefore, we find no error.

Much of the pretrial publicity was published shortly after the robbery and murders took place and before the defendant's first trial which began on November 12, 1981. Before the start of his first trial the defendant moved to transfer the prosecution to a court location outside the judicial district of Waterbury. The trial court, Hull, J., denied this motion. The defendant did not raise the issue of the denial of this motion in the appeal from his first trial. State v. Pelletier I, supra. Now, however, the defendant claims that the publicity surrounding his first trial, along with the most recent publicity incident to his second trial, which began on January 13, 1987, has precluded him from receiving a fair trial. We disagree.

During his second trial the defendant moved to transfer the prosecution pursuant to Practice Book § 835. That section provides in part that "any pending criminal matter be transferred to any other court location: (1) If ... a fair and impartial trial cannot be had where the case is pending...." This court has stated that " '[a]bsent inherently prejudicial publicity which has so saturated the community as to have a probable impact upon the prospective jurors, there must be some showing of a connection between the publicity ... and the existence of actual jury prejudice' " in order to transfer a prosecution. State v. Piskorski, supra, 177 Conn. at 689, 419 A.2d 866, quoting McWilliams v. United States, 394 F.2d 41, 44 (8th Cir.1968). We find that the defendant has shown neither inherently prejudicial publicity nor actual jury prejudice.

Our review of the record discloses that the pretrial publicity was extensive. The publicity involved television news reports, newspaper articles and radio broadcasts. The stories covered various aspects of the crime, the pretrial proceedings, the first trial, conviction, sentencing and appeal. The publicity also included codefendant Donald Couture's retrial and the initiation of the defendant's jury selection. "Nevertheless, '[w]e cannot accept the position that "prominence brings prejudice." ' " State v. Piskorski, supra, 177 Conn. at 688, 419 A.2d 866, quoting Hale v. United States, 435 F.2d 737, 747 (5th Cir.1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). While the publicity was extensive, it was neither inflammatory nor inaccurate. We are not persuaded that the news coverage created a "trial atmosphere that had been utterly corrupted by press coverage." Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). The media coverage involved "straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness." Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 963, 8 L.Ed.2d 98, reh. denied, 370 U.S. 965, 82 S.Ct. 1575, 8 L.Ed.2d 834 (1962). We conclude, therefore, that the pretrial publicity was not so inherently prejudicial as to deny the defendant his right to a fair trial.

Moreover, the defendant has failed to demonstrate actual jury prejudice. The defendant claims that the best evidence of actual prejudice is found in the results of the voir dire examination of 381 venirepersons. Of those examined, the defendant claims that 199 were excused for cause because of prior knowledge of the case. This fact alone, however, does not establish actual jury prejudice.

Each prospective juror was thoroughly and extensively examined. The parties fully explored the "level and effects of each prospective juror's exposure to the publicity concerning the defendant." State v. Marra, 195 Conn. 421, 431, 489 A.2d 350 (1985). While slightly more than 50 percent of the prospective jurors had prior knowledge of the case that would affect...