Couture v. Comm'r of Corr.

• Decision Date: 27 October 2015
• Docket Number: No. 36629.,36629.
• Citation: 160 Conn.App. 757,126 A.3d 585
• Court: Connecticut Court of Appeals
• Parties: Donald COUTURE v. COMMISSIONER OF CORRECTION.

160 Conn.App. 757

126 A.3d 585

Donald COUTURE

v.COMMISSIONER OF CORRECTION.

No. 36629.

Appellate Court of Connecticut.

Argued May 27, 2015.

Decided Oct. 27, 2015.

Evan K. Buchberger, Glastonbury, with whom, on the brief, was Michael D. Day, Plainville, for the appellant (petitioner).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

ALVORD, PRESCOTT and MULLINS, Js.

PRESCOTT, J.

The petitioner, Donald Couture, appeals from the judgment of the habeas court denying in part his petition for a writ of habeas corpus.¹ The petitioner claims that the habeas court improperly (1) concluded that he failed to establish that his appellate counsel rendered ineffective assistance by failing to raise a double jeopardy claim in the petitioner's direct criminal appeal, and (2) rejected his freestanding double jeopardy claim. We disagree and, therefore, affirm the judgment of the habeas court.

This habeas petition arises out of the petitioner's conviction of the infamous murder and robbery of three guards at an armored car garage in Waterbury in 1979. The petitioner and a codefendant, Lawrence Pelletier, were tried jointly and convicted in 1981, but the convictions were overturned by our Supreme Court on the ground that the prosecutor had committed serious improprieties during closing arguments. State v. Couture, 194 Conn. 530, 560–65, 482 A.2d 300 (1984) (Couture I ), cert. denied, 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985). The petitioner's second trial ended in a mistrial as a result of juror misconduct and the inability of another juror to complete service because of a personal reason (Couture II ). The petitioner subsequently was tried and convicted after a third trial of three counts of felony murder. State v. Couture, 218 Conn. 309, 589 A.2d 343 (1991) ( Couture III ). He received a total effective sentence of incarceration for seventy-five years to life, and his conviction was affirmed on appeal. Id.

In Couture III, our Supreme Court set forth the following facts that reasonably could have been found by the jury, quoting from its prior decision in Couture I: "On the early morning of April 16, 1979, the police were called to the Purolator Armored Car garage in Waterbury where three guards, Leslie Clark, Edward Cody and William West, were found shot to death. Each body suffered multiple gunshot wounds

, and the exterior and interior of the garage were littered with 24 expended 30 caliber shell casings fired from two M–1 semi-automatic carbines. The truck [which] Cody and West had driven from Hartford early that morning into the Waterbury garage where Clark was working alone was riddled with bullet holes, and its contents, a shipment of approximately 1.8 million dollars in cash, checks, food stamps and jewelry, were missing." Id., at 312, 589 A.2d 343.

"Late in the afternoon of April 16, 1979, Patricia Dolphin came to the police with information that she had purchased an Iver Johnson M–1 carbine, serial number AAO5518, at the request of Evelyn Vega for Lawrence Pelletier of Waterbury. Mrs. Dolphin related that Pelletier had been recently planning an armed robbery of the Purolator garage with a ‘Donald’ whom Pelletier would talk to on the telephone. Mrs. Dolphin did not then know Donald's last name, but at the trial Mrs. Dolphin later identified [the petitioner] as ‘Donald.’

"Acting on this information, the police sought a search warrant for the Waterbury home of Lawrence Pelletier to search for the murder weapons, other tools and the stolen armored car shipment. They also sought a warrant for Lawrence Pelletier's telephone toll records. The search warrants were issued very early on the morning of April 17 and they were executed shortly thereafter.

"Found at Pelletier's home where Pelletier and Evelyn Vega lived were an attache case containing money, literature for a 30 caliber M–1 carbine and two expended shell casings ejected from the same M–1 carbine fired at the murder scene. The weapon itself and the robbery loot were not, however, at the Pelletier home.

"The telephone toll record search revealed that Lawrence Pelletier often called a Donald Couture of Wallingford. On the basis of this and other information, during the early morning hours of April 17, 1979, the police sought a search warrant for [the petitioner's] premises in Wallingford. The search warrant was issued, and before dawn on the 17th the police entered the home of [the petitioner]. There they found [the petitioner] hiding under his bed. In the basement of that home were located the stolen armored car shipment, consisting of approximately $1,800,000 in cash, checks, food stamps, jewelry, empty deposit bags, and deposit slips made out by Purolator customers and a gun locker containing two 30 caliber M–1 carbines. [The petitioner] was later found to have the key to the gun cabinet on his key chain.

"The two M–1's, one an Inland Marine model and the other the Iver Johnson, serial number AAO5518, bought for Pelletier, were examined and compared with expended cartridge cases and bullets found at the Purolator garage and with bullets recovered from the bodies and clothing of the slain guards. These latter bullets did not, as did other bullets, pass through the guards' bodies. Ten of the ejected cartridge cases at the murder scene came from the Iver Johnson carbine and fourteen had been ejected from the Inland Marine carbine. Bullets from the bodies of all three victims had been fired from the Iver Johnson carbine and bullets from the bodies of Leslie Clark and Edward Cody had been fired from the Inland Marine weapon. Six bullet jacket fragments and one bullet fired from the Inland Marine weapon were also found at the Purolator garage, as well as two such fragments fired from the Iver Johnson carbine. These bullets and fragments were bloody.

"On April 12, 1979, the Inland Marine M–1 carbine had been purchased under a fictitious name from the North Haven Gun Company by Donna Couture as a gift for her husband, the [petitioner]. On April 13, Pelletier and [the petitioner] were seen going into the woods near Wallingford and a great number of shots were heard in those woods. A bullet and seven expended cartridge cases recovered from the woods were found to have been fired from the Iver Johnson and one such expended cartridge case was found to have been ejected from the Inland Marine M–1 carbine.

"A pair of Hit 800 bolt cutters was also found in the [petitioner]'s gun locker. These cutters had been used to cut a Page metal fence surrounding the Purolator garage to allow entry into the area. These same cutters had previously been borrowed from a Waterbury neighbor of Lawrence Pelletier by Pelletier's son. Found in [the petitioner]'s basement gun locker were also two ski masks with the eye openings narrowed by thread which Pelletier's girlfriend, Evelyn Vega, had prepared for the robbery, as well as trousers recognized as Pelletier's. In [the petitioner]'s gun locker the police also found an attache case, of the same type as the one found in Pelletier's house, filled with money. A footlocker was also found in [the petitioner]'s basement together with store boxes for the two attache cases. All three pieces of luggage had been purchased by Pelletier and Vega on April 16." Couture I, supra, 194 Conn. at 532–34, 482 A.2d 300.

The petitioner filed this habeas petition on January 2, 2009. In October, 2013, the habeas court conducted a trial on the petitioner's third amended petition. In addition to raising claims of ineffective assistance of trial and appellate counsel, the petitioner also raised claims involving his speedy trial rights, double jeopardy, and sentence review. In a written memorandum of decision filed February 18, 2014, the habeas court, Newson, J., restored the petitioner's right to sentence review, but denied the petition in all other respects. The habeas court granted certification to appeal, and this appeal followed.

Both claims raised by the petitioner in this appeal arise from the same underlying contention that the prosecutor in Couture I made improper statements during summation with the intent to subvert the petitioner's rights under the double jeopardy clause of the fifth amendment to the United States constitution and that such conduct should have barred his retrial. Accordingly, before we turn to the specific claims raised on appeal, we briefly set forth the relevant substantive law underlying the petitioner's double jeopardy argument.

"The basic contours of double jeopardy jurisprudence are well established. The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.... This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment.... The Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy....

"The [d]ouble [j]eopardy [c]lause of the [f]ifth [a]mendment protects a criminal defendant from repeated prosecutions for the same offense.... As a part of this protection against multiple prosecutions, the [d]ouble [j]eopardy [c]lause affords a criminal defendant a valued right to have his trial completed by a particular tribunal.... Ordinarily, the prohibition against double jeopardy does not apply [if] a defendant has requested that a mistrial be declared.... [United States Supreme Court] cases, however, have indicated that even [if] the defendant moves for a mistrial, there is a narrow exception to the rule that the [d]ouble [j]eopardy [c]lause is no bar to retrial....

"In Oregon v. Kennedy, [456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) ], the United States Supreme Court stated that [o]nly [if] the governmental conduct in question is intended to goad the...