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Nearly 15 years after her husband was bludgeoned to death, Nicole Pelletier is seeking to overturn her accessory to murder conviction, claiming the state used unduly prejudicial character evidence to inflame the jury against her. Pelletier also contends the trial court improperly handled a juror misconduct issue that arose after deliberations had begun. The appeal, initially made to the Connecticut Supreme Court, was sent down to the Appellate Court, where Judges Anne C. Dranginis, Paul M. Foti and Joseph P. Flynn heard oral arguments June 1. “In this case, a dance and a kiss becomes an affair and a prayer becomes a confession,” Pelletier’s lawyer, Assistant Public Defender James B. Streeto, told the panel. “The problem at its root is this is murder case, but the defendant was tried for adultery.” Streeto’s comment refers to testimony describing Nicole Pelletier’s behavior just days after the attack in which her husband was killed. While he lay in the hospital, Nicole attended a birthday party where she “had a very passionate dance” and “a very passionate kiss” with a man she met there, her husband’s relative alleged. Representing the state on appeal, Assistant State’s Attorney Christopher Godialis defended the relative’s testimony. “What [Pelletier] did while her husband lay dying is part and parcel with her state of mind,” Godialis argued. On Oct. 2, 1989, then 19-year-old Jose Rubert entered the Pelletiers’ Terryville home and beat 31-year-old Olidor Pelletier with a baseball bat. Olidor lived for 13 days before succumbing to his injuries. During the police investigation, Pelletier admitted to police she’d been having an affair with Rubert, and told investigators she had feared he would kill her husband. In 1990, Rubert pled guilty to murder and was sentenced to 30 years in prison. Five years later, Rubert approached prosecutors, offering to testify against Nicole Pelletier in exchange for a sentence reduction. By that time, Pelletier had moved to Canada. After years of fighting extradition, she was returned to Connecticut in 2001 and tried in May 2002. When she arrived in Connecticut, police found a handwritten prayer in her possession — a prayer prosecutors later used as evidence at trial. The prayer, written in longhand by Nicole Pelletier, makes no mention of her husband, his death or any crime, but is heavy on seeking forgiveness for sins. It also includes the lines, “Look deep inside of me Lord, my trouble, pain, suffering. Let me promise you a new life. Please God answer my prayer, give me my freedom” and “God, I am a good person that made a bad choice and mistake. With your help I could be on the safe path again.” Such written statements, according to the prosecutor at trial and Godialis in appellate arguments, are admissible as an admission and consciousness of guilt. “It has to be capable of being inferred as having a connection to the crime,” Godialis argued. “This writing is in her possession at the time she was caught.” But Streeto argued in his briefs that “the vague sense of guilt” embodied in the prayer is “an almost universal feature in prayers of most Christian denominations.” The issue in this case, he added, “is whether the defendant is guilty of murder, not some unspecified offense to God.” NO RECORD TO REVIEW The two other defense claims concerned the court’s method of investigating and dismissing a juror, and the seating of an alternate after deliberations began. Shortly after 10 a.m. on the first day of jury deliberations, the foreman sent the judge a note saying one of the jurors admitted to looking up the definition of “doubt” in the dictionary in defiance of more-than-daily admonitions to do no outside research. Judge Carmen E. Espinosa, in presence of the defense attorney and the prosecutor, questioned the juror in chambers off the record. Pelletier was not in the room and there is debate over whether she waived her right to be present. The juror was dismissed and Espinosa called one of the alternate jurors, questioned him and asked the jury to return to court. When the court went back in session, the judge gave a brief recitation of the events for the record and then proceeded ahead as usual. Streeto asserted that Pelletier had a right to be personally present during the discussions because substantive issues were being decided. Further, he argued, because there is no record of what actually transpired in chambers, there is no way for the state to prove the deviation from Practice Book procedures was “harmless error.” Godialis dismissed the claim as “a quibble over how we excused a juror, not whether the juror should be excused.” “We’re quibbling over the procedure used to get a result that had to occur, a result that was inevitable, a result that isn’t challengeable,” he told the Appellate Court judges. “If the defendant’s presence in chambers would not have added anything to the mix, then there’s no harm.” But Streeto argued there were options other than empanelling an alternate. Pelletier, he said, “could have moved for a mistrial or allowed the jury to continue with 11 [members]. We don’t know what was considered because we don’t have a record.”

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