Court: Prosecutors shouldn't have said 'murder'

Hartford (AP) - The state Supreme Court on Monday upheld a man's murder conviction despite ruling that prosecutors shouldn't have referred to what he did as a "murder" during the trial or used other language deemed inflammatory.

The ruling came in the case of Jonathan Albino, who was convicted in the 2006 fatal shooting of Christian Rivera in the stairwell of a Waterbury building frequently used for drug deals.

Albino, who lived in Waterbury, testified he fired random shots, fearing for his safety because Rivera, 19, would not remove his sweatshirt hood to show his face or take his hands out of his pockets.

A jury convicted Albino, now 27, in 2008, and he was sentenced to 50 years in prison.

Justice Andrew J. McDonald, writing for the majority, said the prosecutor improperly used terms such as "murder" and "murder weapon" during the trial.

"We also conclude that gratuitous comments about the defendant "executing' Rivera and committing "murder in cold blood' were improper, considering that the defendant's evidence was deemed sufficient to warrant jury instructions on lesser included offenses inconsistent with a wholly unprovoked act of brutality that has been deemed by courts to justify the use of such terms," McDonald wrote.

The court also found the prosecutor improperly told the jury that to find Albino guilty it would have to determine that every other witness in the case was wrong.

But the court found that because defense attorneys did not raise those objections during the trial, they bear some of the responsibility for allowing the improper comments to stand.

The court also found there was "not a reasonable likelihood that the jury's verdict would have been different absent the improprieties."

Physical evidence showed Rivera was shot in the back and side, indicating he was retreating, McDonald wrote.

Chief state's attorney Kevin Kane said he's grateful the court found that the defendant was not deprived of a fair trial but "we do take seriously the admonitions expressed by the majority."

"We do have an obligation to strongly argue in support of what we believe the evidence to be," he said. "We can't be wishy-washy."

Albino's attorney Pamela S. Nagy said she had just received the decision and declined to comment.

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