State v. Santello

• Decision Date: 05 November 1935
• Court: Connecticut Supreme Court
• Parties: STATE v. SANTELLO.

181 A. 335

120 Conn. 486

STATE v. SANTELLO.

Supreme Court of Errors of Connecticut.

November 5, 1935

Appeal from Superior Court, Fairfield County; John Richards Booth Judge.

Dominick Santello was convicted of murder, and he appeals.

Where state had burden to prove circumstances of killing, admitting as exhibit over defendant's objection sweater allegedly worn by decedent and through which fatal shot passed held proper.

Louis Feinmark, Israel J. Jacobs, and James D. Clyne, all of New Haven, for appellant.

William H. Comley, State's Atty., of Bridgeport, and John V Donnelly, of Bridgeport, Sp. Atty., for the State.

Argued before MALTBIE, C.J., and HINMAN, HAINES, BANKS, and AVERY JJ.

HINMAN, Judge.

On the night of Saturday, November 10, 1934, a number of young men were engaged in playing games in premises occupied by a club called the Red Wing Athletic Club in the ground floor of a building at the corner of Ely avenue and Knapp street in Norwalk. Shortly after midnight two men entered the rooms one wearing a black mask and carrying two revolvers, and the other having upon his face a white silk muffler and carrying a sawed-off shotgun. The man in the black mask, holding a revolver in each hand and menacing the men who were in the front room, forced them to move through a doorway into a rear room. The other man, holding the shotgun, followed him. In the doorway a scuffle ensued between the man in the black mask and one of the young men in the back room, and the man with the shotgun thereupon shot and killed Patsy DeLuca, who was in the front room and had not immediately put up his hands as commanded.

Upon the trial the state offered evidence to prove and claimed to have proved that the man who fired the shot was the defendant, Dominick Santello, and the other man was John Mazello; that they and Cosmo (generally known as Gus) Scarpello had been together on Thursday and Friday nights and had discussed and planned certain holdups, including this club; that pursuant to a plan already made and agreed to between them they met Saturday night and came to the vicinity of the club in an automobile owned and driven by Scarpello, bringing with them the two revolvers and shotgun, furnished by the defendant, their purpose being to hold up and rob members of the club whom they expected to find assembled at the time; that shortly after midnight Mazello and Santello left Scarpello in the car and proceeded to the club, Scarpello then driving past the building and parking his car a short distance away on Knapp street ready to receive the other two on their return; that after the occurrences in the club above related culminating in the shooting of DeLuca, Mazello and Santello retreated from the club rooms, rejoined Scarpello, and were driven away by him in his car; that both the defendant, who resided in Norwalk with his family, and Mazello then left the city, and the defendant remained absent until arrested in Bridgeport a week later.

The defendant offered evidence and claimed to have proved that he was at home at Thursday and Friday nights, and on Saturday evening left home at about 9:30, went to New Haven and was there at the time of the shooting, and claimed that Scarpello either did the actual killing himself or was associated therein with other persons and not with the accused. His further claim was that his leaving and absence from home was through fear that he might be taken into custody and returned to jail for failure to pay the balance of a fine imposed by the city court of New Haven some time previous.

The trial resulted in a verdict of guilty of murder in the first degree. The defendant appealed from the denial of his motions to set aside the verdict and in arrest of judgment, and subsequently filed an additional appeal under which error was assigned in refusing to grant certain requests to charge, in the charge, and in rulings made in the course of the trial. As we find one of the latter decisive, we proceed to it immediately.

The finding discloses that during the cross-examination of Scarpello, who was called as a witness by the state, the following occurred: Counsel for the accused asked:

" Q. Now, by the way, you have told us that you haven't received any promises or inducements for your testimony here. You have never been indicted by the Grand Jury, have you? A. No.

" Q. And you know you are not going to be, don't you? In return for your testimony? A. I don't know.

" Q. You don't know? A. I don't know anything.

" Q. Do you read the newspapers, sir? A. How can I get newspapers in jail?

" Q. Do you read them? A. I haven't seen a newspaper since I have been in jail.

" Q. You haven't seen the Norwalk papers? A. I haven't seen them, no.

" Q. You didn't see the Norwalk paper of January 11, in which it sets forth-

" Mr. Comley: Now I object to any reading from the Norwalk newspapers, Your Honor. If there is any privilege of exemption to be given to this man it comes from me, not from any reporter of the Norwalk newspapers. I can only say that no such promise has been made."

Counsel for the defendant thereupon objected to this declaration by the state's attorney and asked to have the jury excused while he argued a motion. The state's attorney responded that he felt the conduct of counsel to be improper and that he was warranted in protecting himself from the insinuation. The jury were excused and counsel for the defendant made and argued a motion for a mistrial on the ground that the statement made by the state's attorney constituted evidence which would influence the jury to the prejudice of the defendant. The court denied the motion, recalled the jury, and the trial proceeded without, so far as the record shows, any further reference to the incident or instruction to the jury to disregard the statement in question. The denial of this motion is assigned as error.

A well-established rule is that a statement by counsel, not under oath, of a material fact pertinent to the issues unsupported by evidence, and prejudicial to the opposing party, constitutes reversible error unless it appears that the prejudicial effect has been effectively averted by an instruction to disregard the statement, or otherwise. 2 R.C.L. pp. 435, 437; 65 C.J. p. 264; Lowdon v. United States (C. C. A.) 149 F. 673, 677. It must, of course, be an unsworn assertion on counsel's own authority of the existence of the fact, as distinguished from an appeal to the jury's recollection of the evidence or inferences claimed therefrom. Keefe v. Sullivan County Railroad, 78 N.H. 139, 97 A. 565; Kambour v. Boston & Maine Railroad, 77 N.H. 33, 86 A. 624, 45 L.R.A. (N. S.) 1188. Such a statement, although technically improper, will afford ground for reversal only when of a material fact of potential prejudice to a party and seasonably objected to. State v. Leopold, 110 Conn. 55, 59, 147 A. 118. In determining as to the probable effect, the nature and materiality of the stated fact and the facts and surroundings of the particular case are to be regarded; under certain circumstances such a statement might be highly prejudicial, but under others not so regarded. Silver v. State, 110 Tex. Cr. R. 512, 521, 8 S.W.(2d) 144, 9 S.W.(2d) 358, 60 A.L.R. 290. It is common knowledge that trials are often facilitated by statements of fact, especially those which are relatively unimportant, made by counsel, and accepted as such by express or tacit agreement. General statements not actually supported by evidence may be so made, in the heat of debate or argument, without protest or objection at the time serving to especially emphasize or call them to the attention of the jury, as to nullify any prejudice which might otherwise arise therefrom. State v. Leopold, supra. Hoxie v. Home Ins. Co., 33 Conn. 471, 475; Combs v. State, 75 Ind. 215, 220. In many cases appropriately pointed directions to the jury to disregard the statement may operate to so withdraw it from their consideration as to obviate prejudicial effect. In others, the injurious effect is such that it cannot be neutralized by instructions to disregard. People v. Mull, 167 N.Y. 247, 255, 60 N.E. 629, 632, cited in L.R.A. 1918D, p. 35. It is the duty of the appellate court to weigh the probable effect of the statement upon the issues of the case, then look to the action of the trial court in dealing with it, and if it is reasonably clear that the effect has not been eliminated, reversal is required. Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256, 259, 85 S.W. 428; People v. Pantages (Cal. App.). 292 P. 500.

The situation in the present case as revealed by the record including all of the evidence, which is before us under the appeal from the verdict and by reference made part of the finding for the purposes of the assignment now under discussion, was such as to render the fact asserted by the statement in question more material and its probable effect more potent than the incident, above quoted, might indicate when considered by itself. Proof of the identity of Santello as a participant in the attempted robbery in the course of which the homicide was committed depended entirely on the testimony of Scarpello, aside from such corroboration as was afforded by testimony of a police officer that Santello and another man were with Scarpello in the latter's car on the Thursday night preceding, and the conduct of Santello in absenting himself from Norwalk after the homicide. The state frankly concedes in its brief that Scarpello was shown, on the state's own evidence, " to be a worthless scamp and a cringing coward," that reliance upon his confessions after being taken into custody and his testimony on the stand " could not be based on any estimate of his probity or integrity," and that it might be assumed that...