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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 attorney, 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 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.,

312.

‘‘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 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 [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. 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 trialrights, 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 defendant into moving for a mistrial may a defendantraise 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 concluded 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. Butler, 262 Conn. 167, 174–75, 810 A.2d 791 (2002).

‘‘Whether the conduct by the prosecutor was intentional is not the relevant inquiry. Rather, the question

to be asked is whether the prosecutor intended to provoke a mistrial. . . . The requirement of intent is critical, and easily misunderstood. The fact that the

government blunders at trial and the blunder precipitates 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 failure to have taken the stand, thus precipitating a mistrial

or a reversal on appeal, is no doubt speaking deliberately, 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 relevant 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 petitioner, 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 Williams’ 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 assistance 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 counsel, 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). Strickland requires that a petitioner satisfy both a performance 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 reasonable probability that, but for counsel’s unprofessional 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 question requires plenary review by this court unfettered

by the clearly erroneous standard.’’ (Citation omitted;

internal quotation marks omitted.) Ham v. Commissioner of Correction, 301 Conn. 697, 706, 23 A.3d 682

(2011).

A

We first consider whether the habeas court improperly 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 proceedings, 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 ourreview 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 petitionerto establish [underthe first prong

of Strickland] that appellate counsel’s representation

fell below an objective standard of reasonableness considering 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 contentions. . . . 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 Williams’ 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 trialthat, 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 strategy. 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 double 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 petitioner 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 credibility 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 necessary to support a double jeopardy violation under Kennedy 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 pursuant 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 counsel for raising a ‘‘torrent of claimed error’’; id.; rejected

the double jeopardy claim out of hand, without a discussion 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 unfavorable disposition of a nearly identical double jeopardy

claim in the direct appeal by the petitioner’s codefendant, we are unconvinced that Williams’ decision to

forgo raising the double jeopardy claim now championed 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. Commissioner of Correction, 68 Conn. App. 617, 621, 793 A.2d

1092 (2002) (addressing prejudice prong after concluding 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 petitioner would have prevailed. . . . To ascertain

whetherthe petitioner can demonstrate such a probability, 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 jeopardy 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 prosecutor committed improprieties with the intent to

induce a mistrial. The petitioner argues that, in the

present case, the prosecutor’s improper intent reasonably can be inferred from the egregious nature of the

improprieties that led to the reversal of his first conviction. 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 counsel 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 double 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 double 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 jeopardy 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 estoppel 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 proceedings 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 tribunal 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 litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact

determined.’’(Citations omitted; emphasis added; internal 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 committed 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 competent jurisdiction. The dispositive issue before the

criminal court, an issue it necessarily determined in

resolving the motion to dismiss, was whether the prosecutor’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 jeopardy claim.

In the criminal action, Judge Glass rendered a judgment 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 without fraud or collusion, by a court of competent jurisdiction’’; (internal quotation marks omitted) Powell v.

Infinity Ins. Co., supra, 282 Conn. 600; upon the petitioner’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, ultimately, 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 counsel throughout the underlying criminal proceedings, beginning with Couture 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 observation of our Supreme Court that the prosecutor’s prepared remarks were

deliberate, facially improper, persistent and pronounced . . . there is nothing in the evidence cited in the Couture or Pelletier opinions orthe 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 Pelletier], and logic, trial strategy and economy of trials under these circumstances, 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; emphasis 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 dismissing 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 ofCorrection, 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.Commissioner of Correction, 284 Conn. 724, 737–38, 937 A.2d 656 (2007).