State v. Couture

• Decision Date: 02 October 1984
• Citation: 482 A.2d 300,194 Conn. 530
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Donald COUTURE.

Page 300

482 A.2d 300

194 Conn. 530

STATE of Connecticut v. Donald COUTURE.

Supreme Court of Connecticut.

Argued May 9, 1984.

Decided Oct. 2, 1984.

[194 Conn. 531] John R. Williams, New Haven, for appellant (defendant).

Catherine J. Capuano, Sp. Asst. State's Atty., and Walter H. Scanlon, Acting State's Atty., with whom, on brief, was Francis M. McDonald, State's Atty., for appellee (state).

Before PETERS, HEALEY, PARSKEY, GRILLO and MENT, JJ.

PARSKEY, Justice.

After a trial to the jury, the defendant was convicted of three counts of murder and was sentenced by the court to three terms of imprisonment of twenty-five years to life, such sentences to run consecutively, for a total effective sentence of seventy-five years to life. In his appeal the defendant claims that his conviction was vitiated by (1) the denial of his motion to suppress certain evidence seized in violation of his rights under the fourth amendment; (2) the composition of the grand jury and the conduct of its proceedings; (3) the court's unauthorized amendment of the indictment The jury could reasonably have found the following facts. 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.

                and (4) the prejudicial summation of the prosecutor.   The defendant also claims that the consecutive sentences which the court imposed were illegal
                

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 AA05518, 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 Donald Couture 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 Couture's premises in Wallingford. The search warrant was issued, and before dawn on the 17th the police entered the home of Donald Couture. There they found Donald Couture 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. Couture 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 AA05518, bought for Pelletier, were examined and compared with expended cartridge cases and bullets found at the Purolater 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 defendant. On April 13, Pelletier and Donald Couture 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 defendant'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 Couture'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 Couture'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 Couture'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.

The jury heard evidence that when the police found the money in Couture's home one officer stated: "We found the money," at which time the defendant stated: "Anybody could have put it in the basement," although no one had stated where the money had been found.

Donald Couture's defense consisted of cross-examination of the state's witnesses and the presentation of three defense witnesses. One defense witness was Hurlburt Dolphin, a brother-in-law of Patricia Dolphin, who attacked the credibility of Patricia Dolphin and stated Mrs. Dolphin once asked him for firearms. A second defense witness was Barbara Ranando of the Colonial Bank and Trust Company who identified a bank deposit bag found with the robbery loot as a Colonial Bank deposit bag given in 1975 to Richard Demonte, the last Couture witness. Demonte testified he had been a partner of the defendant, Donald Couture in a luncheonette business which closed in 1975.

I SEIZURE OF EVIDENCE

On April 16, 1979, three guards of Purolator Security, Inc., were murdered and over 1.7 million dollars worth of U.S. currency, jewelry and other items were stolen in an armed robbery at the Purolator Security (Purolator) building at 20 Dunbar Lane, Waterbury. On April 17, 1979, pursuant to a search warrant issued by Judge Henebry, law enforcement authorities entered the defendant's residence at 227 Hall Avenue in Wallingford and seized, inter alia, two M-1 carbine rifles and seven bags of currency containing more than $800,000. The defendant challenges the seizure on the grounds that (1) there was insufficient probable cause for the issuance of the search warrant and (2) the currency was not properly seized under the plain view doctrine. We disagree.

A PROBABLE CAUSE TO SEARCH

"Under existing law, valid warrants may be issued to search any property ... at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found." (Emphasis in original.) Zurcher v. Stanford Daily, 436 U.S. 547, 554, 98 S.Ct. 1970, 1975, 56 L.Ed.2d 525, reh. denied, 439 U.S. 885, 99 S.Ct. 231, 58 L.Ed.2d 200 (1978). Whether there is probable cause is to be determined upon facts stated in the affidavit purporting to establish grounds for issuing the warrant. United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723 (1971); State v. DeChamplain When a warrant is sought to search specific premises for certain objects the information appearing in the affidavit should demonstrate a nexus between the objects to be seized and the premises to be searched. United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.1979). That nexus "[does] not have to rest on direct observation, but can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide a [weapon] used in the commission of a murder." Id.; see United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970); Mills v. State, 278 Md. 262, 363 A.2d 491 (1976); Bollinger v. State, 556 P.2d 1035 (Okla.Crim.App.1976).

                79 Conn. 522, 530, 427 A.2d 1338 (1980).   In considering the sufficiency of the affidavit we confine ourselves to the facts which appear on the face of the affidavit or which properly may be inferred therefrom;   State v. Williams, 170 Conn. 618, 629, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S.Ct. 174, 50 L.Ed.2d 145 (1976);  testing those facts with common sense and reality;   United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965);  and with great deference to the fact that the issuing magistrate

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