Couture v. Commissioner of Correction ( 2015 )

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DONALD COUTURE v. COMMISSIONER
OF CORRECTION
(AC 36629)
Alvord, Prescott and Mullins, Js.
Argued May 27—officially released October 27, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Evan K. Buchberger, with whom, on the brief, was
Michael D. Day, for the appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
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 dou-
ble 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 convic-
tions were overturned by our Supreme Court on the
ground that the prosecutor had committed serious
improprieties during closing arguments. State v. Cou-
ture, 194 Conn. 530, 560–65, 482 A.2d 300 (1984) (Cou-
ture 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 subse-
quently 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 fol-
lowing 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 exte-
rior 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 ship-
ment of approximately 1.8 million dollars in cash,
checks, food stamps and jewelry, were missing.’’ Id.,
312.
‘‘Late in the afternoon of April 16, 1979, Patricia Dol-
phin 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 Pel-
letier 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 Eve-
lyn 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 Law-
rence Pelletier often called a Donald Couture of Wall-
ingford. 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 Puro-
later 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. Bul-
lets 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 frag-
ments 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 neigh-
bor 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 Pel-
letier’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. 532–34.
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 deci-
sion 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 pros-
ecutor 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. Accord-
ingly, 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 jurispru-
dence 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 pro-
vides coextensive protection, with the federal constitu-
tion, 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 defendant into mov-
ing for a mistrial may a defendant raise the bar of double
jeopardy to a second trial after having succeeded in
aborting the first on his own motion. In so holding, the
court acknowledged that its language in cases such as
United States v. Dinitz, 424 U.S. 600, 611, 96 S. Ct.
1075, 47 L. Ed. 2d 267 (1976), appeared to broaden the
test from one of intent to provoke a motion for a mistrial
to a more generalized standard of bad faith conduct or
harassment on the part of the judge or prosecutor. . . .
In Oregon v. Kennedy, [supra, 675–76], however, the
court explicitly repudiated the harassment standard
. . . as the law, [holding [p]rosecutorial conduct that
might be viewed as harassment or overreaching, even
if sufficient to justify a mistrial on defendant’s motion,
therefore, does not bar retrial absent intent on the part
of the prosecutor to subvert the protections afforded
by the [d]ouble jeopardy clause]. Instead, the court con-
cluded that the circumstances under which such a
defendant may invoke the bar of double jeopardy in a
second effort to try him are limited to those cases in
which the conduct giving rise to the successful motion
for a mistrial was intended to provoke the defendant
into moving for a mistrial.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) State v. But-
ler, 262 Conn. 167, 174–75, 810 A.2d 791 (2002).
‘‘Whether the conduct by the prosecutor was inten-
tional is not the relevant inquiry. Rather, the question
to be asked is whether the prosecutor intended to pro-
voke a mistrial. . . . The requirement of intent is criti-
cal, and easily misunderstood. The fact that the
government blunders at trial and the blunder precipi-
tates a successful motion for a mistrial does not bar
a retrial. . . . Yet the blunder will almost always be
intentional—the product of a deliberate action, not of
a mere slip of the tongue. A prosecutor who in closing
argument comments improperly on the defendant’s fail-
ure to have taken the stand, thus precipitating a mistrial
or a reversal on appeal, is no doubt speaking deliber-
ately, though his judgment may be fogged by the heat
of combat. But unless he is trying to abort the trial,
his misconduct will not bar a retrial. It doesn’t even
matter that he knows he is acting improperly, provided
that his aim is to get a conviction. . . . The only rele-
vant intent is intent to terminate the trial, not intent
to prevail at this trial by impermissible means.’’
(Emphasis added; internal quotation marks omitted.)
Id., 178. With the preceding principles in mind, we now
turn to the petitioner’s claims on appeal.
I
The petitioner first claims that the habeas court
improperly concluded that he failed to demonstrate that
his appellate counsel, Attorney John R. Williams, had
provided ineffective assistance.2 According to the peti-
tioner, Williams acted deficiently by failing to raise a
double jeopardy claim in Couture III. In particular, the
petitioner, relying on Oregon v. Kennedy, supra, 456
U.S. 667, and its progeny, argues that the prosecutor’s
improper remarks during summation in Couture I were
made with the intent to goad the defense into moving
for a mistrial and, thus, to subvert the double jeopardy
clause. The habeas court disposed of this claim in rather
summary fashion, concluding that the petitioner had
failed to demonstrate either that Williams’ decision not
to raise the double jeopardy claim on direct appeal was
deficient performance or that, had he raised the claim,
it would have been successful. We agree with the habeas
court that the petitioner has failed to show that Wil-
liams’ actions as appellate counsel fell outside the range
of professionally competent assistance guaranteed
under the sixth amendment and, thus, we reject the
petitioner’s claim.
‘‘A criminal defendant’s right to the effective assis-
tance of counsel extends through the first appeal of
right and is guaranteed by the sixth and fourteenth
amendments to the United States constitution and by
article first, § 8, of the Connecticut constitution. . . .
To succeed on a claim of ineffective assistance of coun-
sel, a habeas petitioner must satisfy the two-pronged
test articulated in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strick-
land requires that a petitioner satisfy both a perfor-
mance prong and a prejudice prong. To satisfy the
performance prong, a claimant must demonstrate that
counsel made errors so serious that counsel was not
functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . The claim will succeed only if both
prongs are satisfied. . . . It is well settled that [a]
reviewing court can find against a petitioner on either
ground, whichever is easier.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Small v. Commissioner of Correction, 286 Conn. 707,
712–13, 946 A.2d 1203, cert. denied sub nom. Small
v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d
336 (2008).
‘‘Although a habeas court’s findings of fact are
reviewed under the clearly erroneous standard of
review . . . [w]hether the representation a defendant
received at trial was constitutionally inadequate is a
mixed question of law and fact. . . . As such, that ques-
tion requires plenary review by this court unfettered
by the clearly erroneous standard.’’ (Citation omitted;
internal quotation marks omitted.) Ham v. Commis-
sioner of Correction, 301 Conn. 697, 706, 23 A.3d 682
(2011).
A
We first consider whether the habeas court improp-
erly concluded that Williams’ decision not to raise a
double jeopardy claim on direct appeal in Couture III
did not constitute deficient performance. The habeas
court found that Williams had advocated zealously for
his client throughout the underlying criminal proceed-
ings, and that his decision not to pursue the petitioner’s
double jeopardy claim on appeal in Couture III was
not unreasonable in light of the record and prevailing
law. On the basis of our review of the underlying record,
we agree.
‘‘A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. . . .
[T]he [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy.’’ (Internal quotation
marks omitted.) Llera v. Commissioner of Correction,
156 Conn. App. 421, 429, 114 A.3d 178, cert. denied, 317
Conn. 907, 114 A.3d 1222 (2015). ‘‘Just as with a claim
of ineffective assistance of trial counsel, success on
a claim of ineffective assistance of appellate counsel
requires the petitioner to establish [under the first prong
of Strickland] that appellate counsel’s representation
fell below an objective standard of reasonableness con-
sidering all of the circumstances. . . . [Although] an
appellate advocate must provide effective assistance,
[he or she] is not under an obligation to raise every
conceivable issue. A brief that raises every colorable
issue runs the risk of burying good arguments . . . in
a verbal mound made up of strong and weak conten-
tions. . . . Indeed, [e]xperienced advocates since time
beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focus-
ing on one central issue if possible, or at most on a few
key issues. . . . Moreover, [a] habeas court will not,
with the benefit of hindsight, second-guess the tactical
decisions of appellate counsel.’’ (Internal quotation
marks omitted.) Smith v. Commissioner of Correction,
148 Conn. App. 517, 531, 85 A.3d 1199, cert. denied, 312
Conn. 901, 91 A.3d 908 (2014).
The petitioner has failed to demonstrate that Wil-
liams’ decision not to raise the double jeopardy claim
as an appellate issue in his criminal appeal was anything
short of a tactical decision, one that fell squarely within
an objective standard of reasonableness. The habeas
court, in addressing whether Williams had provided
ineffective assistance by failing to raise the petitioner’s
speedy trial claim on direct appeal, credited Williams’
testimony at the habeas trial that, as a matter of strategy,
he only raised on appeal those issues that he believed
had a likelihood of success, intentionally leaving out
weaker claims. As appellate courts in this state have
often repeated, this is an appropriate and sound strat-
egy. See, e.g., State v. Pelletier, 209 Conn. 564, 567,
552 A.2d 805 (1989) (noting ‘‘effect of adding weak
arguments will be to dilute the force of the stronger
ones’’ [internal quotation marks omitted]); Saucier v.
Commissioner of Correction, 139 Conn. App. 644, 652–
53, 57 A.3d 399 (2012) (‘‘strategy of culling out weaker
claims is sound, not deficient, practice’’), cert. denied,
308 Conn. 907, 61 A.3d 530 (2013).
As suggested by the habeas court, Williams’ decision
that the double jeopardy claim was not among the
strongest appellate issues was informed by the fact
that similar double jeopardy claims already had been
rejected by other courts. Williams argued a related dou-
ble jeopardy claim in a motion to dismiss the indictment
against the petitioner so as to prevent the first retrial
in Couture II.3 The trial court in Couture II, Glass, J.,
denied the motion to dismiss.4 In so ruling, the court
expressly found that the state’s case against the peti-
tioner was a strong one, concluding that there was no
incentive for the prosecutor to try to abort the trial.
Williams himself provided unchallenged testimony
before the habeas court that the state’s case against
the petitioner was very strong, noting the fact that the
items stolen from the armored car shipment were found
in the petitioner’s home and that the petitioner was
unable to provide any alternate explanation for their
presence. More importantly, Judge Glass found that the
prosecutor’s intent in making improper remarks during
summation in the first trial was not to provoke a mistrial
but to ensure a conviction.5
As previously set forth, it is the specific intent behind
the prosecutor’s improper remarks that is dispositive
of a double jeopardy claim under Kennedy, and the
court found in the present case that the prosecutor had
the intent to prevail by impermissible means, not to
cause a mistrial or a reversal on appeal. Those findings
would have been fatal to a double jeopardy claim that
was based on prosecutorial impropriety. See State v.
Butler, supra, 262 Conn. 178. It is axiomatic that an
appellate court cannot retry facts or pass on the credi-
bility of witnesses, and that it will reverse a habeas
court’s factual findings only upon a showing that they
are clearly erroneous. See State v. Collic, 55 Conn. App.
196, 203, 738 A.2d 1133 (1999). Therefore, if Williams
had raised the petitioner’s double jeopardy claim on
appeal in Couture III, he would have faced the daunting
burden of establishing that the requisite intent neces-
sary to support a double jeopardy violation under Ken-
nedy existed in the face of an express factual finding
by Judge Glass that such intent was not present.6
Additionally, following the retrial and subsequent
conviction of the petitioner’s codefendant, Pelletier,
Pelletier’s public defender raised as one of twelve
claims in Pelletier’s direct appeal that Pelletier’s second
trial should have been barred by double jeopardy pursu-
ant to Kennedy. Pelletier’s appellate counsel relied
upon the very same prosecutorial improprieties that
the petitioner now claims should have barred his own
retrial. See State v. Pelletier, supra, 209 Conn. 566. Our
Supreme Court, after first generally admonishing coun-
sel for raising a ‘‘torrent of claimed error’’; id.; rejected
the double jeopardy claim out of hand, without a discus-
sion of the merits of the claim. A fair reading of the
Supreme Court’s opinion is that the double jeopardy
claim was among the weakest of the arguments raised,
warranting no discussion. That decision was published
prior to the petitioner’s retrial in Couture III and would
have been available to Williams in deciding what issues
to raise in the petitioner’s direct appeal in Couture III.7
Given the unfavorable factual findings arising from
the trial court’s adjudication of the motion to dismiss
in Couture II, coupled with the Supreme Court’s unfa-
vorable disposition of a nearly identical double jeopardy
claim in the direct appeal by the petitioner’s codefen-
dant, we are unconvinced that Williams’ decision to
forgo raising the double jeopardy claim now champi-
oned by the petitioner was anything other than a sound
tactical decision, and that Williams’ performance fell
well within the range of reasonable and professional
conduct permitted under the sixth amendment.
B
Having determined that the petitioner failed to satisfy
the performance prong of the Strickland standard,
which determination is dispositive of the petitioner’s
ineffective assistance claim, it is unnecessary for us to
address the prejudice prong. Johnson v. Commissioner
of Correction, 218 Conn. 403, 429, 589 A.2d 1214 (1991).
We choose in the present case to note, however, that
even if we were to assume that Williams’ decision not
to raise the double jeopardy claim on direct appeal was
professionally unreasonable, the petitioner’s claim of
ineffective assistance of counsel would nonetheless fail
because the petitioner has not established that he was
prejudiced by that decision. See Knight v. Commis-
sioner of Correction, 68 Conn. App. 617, 621, 793 A.2d
1092 (2002) (addressing prejudice prong after conclud-
ing counsel’s performance was not deficient).
To determine whether a petitioner raising a claim of
ineffective assistance of appellate counsel can prevail
under the second prong of Strickland, we ‘‘assess
whether there is a reasonable probability that, if the
issue were brought before us on direct appeal, the peti-
tioner would have prevailed. . . . To ascertain
whether the petitioner can demonstrate such a probabil-
ity, we must consider the merits of the underlying
claim.’’ (Citation omitted.) Small v. Commissioner of
Correction, supra, 286 Conn. 728. In our discussion of
the performance prong of Strickland and why it was
objectively reasonable for Williams to have chosen to
omit the double jeopardy claim, we already have
exposed the weakness of the petitioner’s double jeop-
ardy claim and thus its unlikelihood of success on
appeal.
Whether the prosecutor had the necessary intent to
cause a mistrial or a reversal on appeal is a factual
determination. State v. Butler, supra, 262 Conn. 178.
Thus, in order to prevail on his double jeopardy claim,
the petitioner would have had to establish that the pros-
ecutor committed improprieties with the intent to
induce a mistrial. The petitioner argues that, in the
present case, the prosecutor’s improper intent reason-
ably can be inferred from the egregious nature of the
improprieties that led to the reversal of his first convic-
tion. That argument on its face seems to invoke the bad
faith conduct or harassment standard that the Supreme
Court expressly disavowed in Oregon v. Kennedy,
supra, 456 U.S. 675–76. In any event, as we already have
mentioned, the underlying criminal record is not silent
on the issue of the prosecutor’s intent. Rather, Judge
Glass found that the prosecutor’s intent in making the
improper remarks during summation ‘‘was to persuade
the jury to return guilty verdicts against the [petitioner
and Pelletier] and not to provoke a mistrial by prodding,
urging or goading defense counsel to engage in conduct
beyond the conduct normally expected of defense coun-
sel in response to vigorous advocacy.’’ Faced with that
finding, which is reviewable only for clear error, it is
not reasonably probable that, had the double jeopardy
claim been raised, the petitioner would have prevailed.
Because the petitioner failed to satisfy his burden under
Strickland, we conclude that the habeas court properly
rejected the petitioner’s claim of ineffective assistance
of appellate counsel.
II
Finally, the petitioner claims that the court improp-
erly rejected his freestanding claim of double jeopardy.
The habeas court determined that the freestanding dou-
ble jeopardy claim failed primarily for two reasons.
First, it concluded that either the petitioner had waived
his double jeopardy protection by appealing from his
conviction in Couture I, or that the same jeopardy that
attached at his first trial continued through the appeal
and into his subsequent retrials. See State v. Boyd, 221
Conn. 685, 691–92, 607 A.2d 376 (noting that overlapping
theories of waiver and continuing jeopardy underlie
general rule that defendant cannot seek to set aside
conviction and then rely on overturned conviction to
bar new trial), cert. denied, 506 U.S. 923, 113 S. Ct. 344,
121 L. Ed. 2d 259 (1992). Second, the habeas court
concluded that it was barred from adjudicating the dou-
ble jeopardy claim by the doctrine of res judicata.
Because we conclude, for the reasons we will set forth,
that the habeas court properly declined to review the
petitioner’s claim on res judicata grounds, we do not
consider the habeas court’s alternate basis for rejecting
the petitioner’s claim or the sole argument on appeal
by the respondent, the Commissioner of Correction,
that the petitioner’s freestanding claim of double jeop-
ardy was not a cognizable claim because the petitioner
failed to demonstrate cause and prejudice to overcome
his procedural default for not raising the claim on
appeal in Couture III.8
‘‘The applicability of the doctrines of collateral estop-
pel or res judicata presents a question of law that we
review de novo.’’ Powell v. Infinity Ins. Co., 282 Conn.
594, 601, 922 A.2d 1073 (2007). ‘‘The doctrine [of res
judicata] . . . applies to criminal as well as civil pro-
ceedings and to state habeas corpus proceedings. . . .
However, [u]nique policy considerations must be taken
into account in applying the doctrine of res judicata to
a constitutional claim raised by a habeas petitioner.
. . . Specifically, in the habeas context, in the interest
of ensuring that no one is deprived of liberty in violation
of his or her constitutional rights . . . the application
of the doctrine of res judicata . . . [is limited] to claims
that actually have been raised and litigated in an earlier
proceeding.’’ (Internal quotation marks omitted.) Pierce
v. Commissioner of Correction, 158 Conn. App. 288,
307, 118 A.3d 640, cert. denied, 318 Conn. 907, A.3d
(2015).
‘‘The doctrine of res judicata holds that an existing
final judgment rendered upon the merits without fraud
or collusion, by a court of competent jurisdiction, is
conclusive of causes of action and of facts or issues
thereby litigated as to the parties and their privies in
all other actions in the same or any other judicial tribu-
nal of concurrent jurisdiction. . . . If the same cause
of action is again sued on, the judgment is a bar with
respect to any claims relating to the cause of action
which were actually made or which might have been
made. . . . Claim preclusion (res judicata) and issue
preclusion (collateral estoppel) have been described as
related ideas on a continuum. . . . More specifically,
collateral estoppel, or issue preclusion . . . prohibits
the relitigation of an issue when that issue was actually
litigated and necessarily determined in a prior action
between the same parties or those in privity with them
upon a different claim. . . . An issue is actually liti-
gated if it is properly raised in the pleadings or other-
wise, submitted for determination, and in fact
determined.’’ (Citations omitted; emphasis added; inter-
nal quotation marks omitted.) Powell v. Infinity Ins.
Co., supra, 282 Conn. 600–601.
As we have indicated several times previously in this
opinion, the issue of whether the improprieties commit-
ted by the prosecutor during the petitioner’s first trial
implicated the petitioner’s double jeopardy rights and
should have barred a retrial was raised previously and
litigated fully by way of the motion to dismiss that
was filed prior to the petitioner’s second trial. It is
undisputed that the criminal court was a court of com-
petent jurisdiction. The dispositive issue before the
criminal court, an issue it necessarily determined in
resolving the motion to dismiss, was whether the prose-
cutor’s improper remarks were made with the intent
to goad the petitioner into seeking a mistrial in order
to subvert the petitioner’s double jeopardy rights. That
is precisely the same factual and legal issue that the
habeas court would have had to consider to adjudicate
the merits of the petitioner’s freestanding double jeop-
ardy claim.
In the criminal action, Judge Glass rendered a judg-
ment on the merits denying the motion to dismiss and
in doing so expressly found that the prosecutor lacked
the requisite intent to goad the defendant into seeking
and obtaining a mistrial. That decision became ‘‘an
existing final judgment, rendered upon the merits with-
out fraud or collusion, by a court of competent jurisdic-
tion’’; (internal quotation marks omitted) Powell v.
Infinity Ins. Co., supra, 282 Conn. 600; upon the peti-
tioner’s failure to raise the double jeopardy issue in his
appeal following his conviction in the third trial. On
the basis of our review, we conclude that the habeas
court properly determined that it was barred under the
doctrine of res judicata from relitigating Judge Glass’
factual determinations in Couture II and, thus, ulti-
mately, from considering the merits of the petitioner’s
freestanding double jeopardy claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted certification to appeal from the judgment.
2
Attorney Williams acted as both the petitioner’s trial and appellate coun-
sel throughout the underlying criminal proceedings, beginning with Cou-
ture I.
3
The double jeopardy argument advanced by Williams in the motion to
dismiss was not that the prosecutor intended to produce a mistrial, but that
the prosecutor had sought to goad defense counsel into making repeated
objections to the prosecutor’s improper statements, thereby making him
appear to the jury as an obstructionist and creating disfavor as to the
petitioner and his codefendant.
4
The court’s memorandum of decision was offered and accepted as a full
exhibit before the habeas court.
5
In his decision, Judge Glass found that ‘‘[n]otwithstanding the observa-
tion of our Supreme Court that the prosecutor’s prepared remarks were
deliberate, facially improper, persistent and pronounced . . . there is noth-
ing in the evidence cited in the Couture or Pelletier opinions or the transcript
of the prosecutor’s summation to show that the prosecutor believed that
he had anything other than a strong case against the [petitioner and Pel-
letier], and logic, trial strategy and economy of trials under these circum-
stances, would seem to dictate avoiding aborting the trial and not
intentionally engaging in prosecutorial conduct necessitating a mistrial at
the behest of the prosecutor or at the request of the [petitioner and Pelletier].
. . . After reviewing the transcript of the prosecutor’s summation, the court
is persuaded that his intent and objective in making the [improper] remarks
was to persuade the jury to return guilty verdicts against the [petitioner
and Pelletier] and not to provoke a mistrial by prodding, urging or goading
defense counsel to engage in conduct beyond the conduct normally expect
of defense counsel in response to vigorous advocacy. Also, the court is
persuaded that the prosecutor by his summation did not intend to goad
defense counsel into engaging in conduct that would cause the jury to view
the [petitioner and Pelletier] any more unfavorably than the evidence and
reasonable inferences therefrom would justify.’’ (Citations omitted; empha-
sis added.)
6
We note that Williams filed an interlocutory appeal from the denial of
the motion to dismiss and that our Supreme Court dismissed that appeal.
According to the undisputed evidence before the habeas court, the appeal
was dismissed for lack of a final judgment. Although generally the denial
of a motion to dismiss is not an appealable final judgment, our Supreme
Court has long recognized an exception to that general rule if the motion
raised at least a colorable claim of double jeopardy. State v. Moeller, 178
Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed.
2d 320 (1979); see also State v. Crawford, 257 Conn. 769, 775–76, 778 A.2d
947 (2001) (noting that ‘‘[w]e have entertained several interlocutory appeals
from denials of motions to dismiss based on double jeopardy claims,’’ and
‘‘[t]he only real question is whether the double jeopardy claim is colorable’’
[internal quotation marks omitted]), cert. denied, 534 U.S. 1138, 122 S. Ct.
1086, 151 L. Ed. 2d 985 (2002). Although our Supreme Court’s order dismiss-
ing the petitioner’s interlocutory appeal contains no discussion of the merits
of the appeal, it would not have been unreasonable for Williams to have
viewed the dismissal as an additional indication that the petitioner’s double
jeopardy claim was not a particularly strong one.
7
Although there is no specific indication in the record before the habeas
court that Williams specifically relied upon the Pelletier decision in making
his decision not to raise a double jeopardy claim in the petitioner’s appeal,
it is clear from his testimony overall that he was aware of Pelletier’s retrial,
and the petitioner has presented no evidence suggesting that Williams was
unaware of the Supreme Court’s decision.
8
The respondent properly raised the defense of procedural default in his
return responding to the petitioner’s third amended petition for a writ of
habeas corpus. Although procedural default is a threshold issue, the habeas
court did not address it in its memorandum of decision. See Taylor v.
Commissioner of Correction, 284 Conn. 433, 447–48 n.18, 936 A.2d 611 (2007)
(emphasizing that ‘‘habeas court generally should decide the threshold issue
of cause and prejudice when it is raised as a defense because, in the ordinary
case, failing to do so undermines the prudential considerations that the
cause and prejudice rule was designed to promote’’). Because a finding that
the petitioner had procedurally defaulted on his double jeopardy claim
would have precluded any further consideration by the habeas court of the
petitioner’s claim, we presume that the habeas court implicitly decided the
procedural default issue in favor of the petitioner, especially in light of the
respondent’s failure to demonstrate otherwise by seeking an articulation
by the habeas court on the issue of procedural default. See Orcutt v. Commis-
sioner of Correction, 284 Conn. 724, 737–38, 937 A.2d 656 (2007).