Opposition — Avcollie v. Connecticut

Supreme Court of the Gnited States

OCTOBER TERM, 1979

No. 79-649

BERNARD L. AVCOLLIE,

Petitioner,

VS.

STATE OF CONNECTICUT

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF CONNECTICUT

BRIEF FOR RESPONDENT IN OPPOSITION

Francis M. McDonald, State’s Attorney

Paul E. Murray, Asst. State’s Attorney

Richard Shiffrin, Asst. State’s Attorney

300 Grand Street

Waterbury, Connecticut 06702

(203) 756-4431

Counsel for Respondent

INDEX

NINN 8h ice i ccns curl ca dsudanncachcsaruniadiundnienabansanknaxd l

NMI sic chedastaspanetcasssisoriesivans outa veciaiess Vacs binedsesibsaponeu 2

NN NINN as rensnstdnisaniiiivestaaxasaneonieiinaensnkueroditinveasens 2

nN I no coon ost candpenweanbitinpirnaviakinees 3

III cicsiess. .c\suniendsaeroaneciacae anata Si taaantcensiaiteaeneninnes 6

Conclusion ....... xo tA BAA. RENAE op Fone BON OPEN REET RTO 11

PE BE eossnankibinscnsebsstnratvescenttalasctiswiibtinsisaphiasinateoseay 1A

I TE sich duicslacickcensyevkveaieovnenirinennlls Sinaia saabrnceieonetes 3A

I TY sastasvedsadiniunicancsmukieabacinisbeicvl odes bowsillagiateeahagarneweis 3C

Citations

Cases:

Fo BIR SE LI SE eo en en eneen 6

Costavelli v. Massachusetts, 421 U.S. 193 (1975) wc. 6

Humphrys v. Beach, 149 Conn. 14, 175 A. 2d 363 ..........0.. 10

Jackson v. Virginia, U.S. 61 L. Ed. 2d 560 (1979) ........ 2,8,9

Madore v. New Departure Mfg. Co., 104 Conn. 709

I I ahaa occa cisscicanepniciovayenisesactucestins 9

People v. Jennings, 583 P. 2d 908 (1978) w.cceeeeeeeceeeeeeeeeees 8

People v. Leach, 5~ A.D. 2d 332, 394

BCI FO MET D dachsnsisciintasavcrssasaneceeeintccasuaecinasy 8

Sammamein ©. 75. S37 US. F4 CASTS) cccecnscscosesvcccccssvicesssccs 7

State v. Kleinwaks, 68 N.J. 328, 345 A. 2d 793 (1975) .... 8

State v. Lynch, 79 N.J. 327, 399 A. 2d 629 (1979) ........ 8

INDEX IN THE

Page Supreme Court of the Gnited States

OS. v. Aisisot, S35 B.. 20. CBG CIGIG) vvcissnssnevssiistionennencant 8

OCTOBER TERM, 1979

5.9. eee, S08 PACES CISA) vets 8

ds RE, FET FT. a6 Fe CASTS) wviviarccmisrmncienoee 8 No. 79-649

US. v. Cabaleme, 560 F. 28 GO CAST) sccsccccexcacscdésessvceteas 8

U.S. ¥.Camoway, S62 B. ZB GID C1977) ccccsecesiswsentinentas 8 BERNARD L. AVCOLLIE,

US. ¥: Geccolemt, 542 BF. 28 156 C2976) cececcaceovcovstvecacsencess 8 ve ecal

75, y. Caccont, 455 UES. ZEB CSTR Y ivsccssccvecccssecseces 7

U.S. v. Craver0, 530 F. 20.666 (12976) ssvescsssssscsticcieieee 8 so ed

Respondent.

OS 6: Tareas, SiS BB VEG CITI) hacsicenttces S

O35: ¥. Donaione, 539 B. 24- 1131 C1976): © csrssvissersisiorexansons 8 ON PETITION FOR WRIT OF CERTIORARI

U.S. v. Hannah, 584 F.2d 27 (1978) ceccsscssscsssesssessseesseesses 8 TO THE

U.S. v. Hemphill, 544 F. 2d 341 (1976) wu.ccccccccsecsssssesssseees 8 ee ree CUT

U5; ¥. Jems; 420 GS: 398 CIOS). vier cee 7

US. v. Jones, 580 F.2d 219 (1978) sccccsscsssscssssssssscssecsssoes 8 BRIEF FOR RESPONDENT IN OPPOSITION

U.S. v. Mandel, 591 F. 2d 1347 (1979) ..rccccccssccccsssscccceeecs 8

U.S. v. Martin Linen Supply, 430 U.S. 564 (1977) ...eceeeeee 7 | The respondent State of Connecticut respectfully prays that the

US. v. Moore, 586 F. 2d 1029 (1978) scsccccossssecssssccceeseoore 8 Petition for a Writ of Certiorari be denied.

US. 2, Dears, 576 ©. 28650 C1978) iivicnenensmonae 8

OPINIONS BELOW

US. vi Reha, SI4 FD OSe C287 TY. sictivccickecmmeteaeee 8

ie y The petitioner has set forth in his appendices A and B the

w. V. cott, 37 US. 82 (1978) MITTTTITITITITITI TIT 7 opinions of the Connecticut Supreme Court. In addition the res-

OS. v. Wasen,; 420 US. 332 C1975) - vi cicrasscestilcee 7 pondent reproduces as appendices A, B, and C to this brief the

orders of the Connecticut Supreme Court staying the entry of

Statutes judgment and further proceedings in the trial court pending action

on this petition.

28 UNITED STATES CODE, Sec. 1257 ........ccccsscccsee 3 1

JURISDICTION

The decision of the Connecticut Supreme Court was rendered

on July 24, 1979. Entry of the judgment of convictions, sen-

tencing and any other proceedings in the trial court have, however,

been stayed. The petitioner still retains the right to a direct appeal

to the Connecticut Supreme Court following the rendition of that

judgment and sentencing, an appeal which might result in rever-

sal of this conviction on other grounds thus rendering the issues

raised in this petition moot. In light of these facts the finality re-

quired by 28 UNITED STATES CODE, Section 1257 does not

currently exist.

QUESTIONS PRESENTED

1. Does the Double Jeopardy Clause bar a State

appeal trom a judgment of acquittal entered by

the trial judge after the trial jury returned a ver-

dict of guilty where reversal does not require a

retrial?

i)

Does Jackson v. Virginia, —US—, 61 L. Ed.

2d 560 (1979) require reversal of petitioners

conviction?

STATEMENT OF THE CASE

The defendant, an attorney, was on trial before a jury on an

indictment charging him with the murder of his wite.

Evidence had been introduced by the State to establish, if be-

lieved by the jury, that Mrs. Avcollie, whose body was found in

the Avcollie swimming pool, shortly after 2:00 AM on October

30, 1975, was strangled to death and the victim of a homicide.

The State’s medical experts testified clearly and unequivocally

that death was due to strangulation and not drowning. These wit-

nesses testified at length concerning the basis for this conclusion.

The defendant had claimed his wife left his house and walked

towards a neighbor’s house between 12:00 and 12:30 AM that

morning, after an argument and physical struggle between them.

The defendant also claimed his wife was “very obviously” under

the influence at that time and had been drinking and taking pills,

some of which were found scattered about the sink in the defen-

dant’s master bedroom bathroom.

The State introduced medical evidence (stomach contents and

drug blood-liver levels) that Mrs. Avcollie was killed at a time

earlier than 12:00 AM when, by his own admission, the defen-

dant was alone and fighting with Mrs. Avcollie at their home.

The medical evidence also established Mrs. Avcollie had very small

amounts of alcohol and drugs in her body when she died and was

not intoxicated.

The defendant, the evidence showed, was in love with another

woman and only a week before his wife’s death, with that other

woman, had looked at expensive homes large enough to accomo-

date both his children and those of his girlfriend.

It was further shown, in contradiction to the defendant’s earlier

statement, that he drove his automobile into his driveway, a light

went on, and he was seen carrying a large object in both his arms

after leaving the car. This occurred before he called his neighbors

3

and started the search for his wife about 1:30 AM. In his testi-

mony, the defendant did admit driving the vehicle but denied

carrying anything after he left the car.

The defendant's version of his use of the vehicle was that he

used the car to search the street and adjacent streets for his wife.

However, other witnesses disputed this and he had admittedly

omitted this episode in his detailed statements about his activities

that night. He, in fact, denied going out looking for his wife

when asked by a witness that evening.

When the State attempted to introduce evidence of the con-

tents of the trunk of the defendant’s automobile which contained

a small quantity of human blood, human head hairs having 21

out of 22 characteristics of Mrs. Avcollie’s head hairs, and black

and white rayon wheel cover fibers microscopically similar to the

fibers found on Mrs. Avcollie’s jacket, the trial court sustained the

defendant's objection that such evidence was prejudicial, specula-

tive and inflammatory. The jury did hear testimony, however, that

the jacket Mrs. Avcollie was wearing had been in the trunk of the

defendant’s car shortly before and had not been cleaned before

Mrs. Avcollie’s death, that the automobile had a trunk light, and

it was after the automobile was driven into the driveway that the

frenzied barking of dogs near the Avcollie home was heard.

The case was submitted to the jury on the charge of murder,

the trial court refusing, at the defendant’s request, to instruct the

jury on the lesser offense of manslaughter.

The jury thereafter returned a verdict of guilty.

After the foreman announced the verdict in open court, the de-

fendant moved that the jury be excused and then his motions

previously made, including a motion to set aside the verdict, be

granted. The Court then ordered the verdict set aside and ordered

an acquittal. In so doing, the trial judge stated he was acting as

“one who probably could be called the thirteenth juror.”

4

The trial judge told the jury he was setting aside their verdict

“either because you did not understand the charge or you did not

weigh all of the evidence properly.” Previously the court had

stated concerning its intention to set aside the verdict:

“I realize that this is a case of circumstantial

evidence but even cases of circumstantial evidence

must be proven beyond a reasonable doubt.

As I have said before, and I have said it in my

charge on several occasions and I repeat it. The

law never permits inferences to be drawn or as-

sumptions depending upon other inferences or

assumptions.”

Thereafter the state appealed to the Connecticut Supreme Court

which reversed the trial judge and remanded with directions to

render a judgment of guilty and impose sentence. In its opinion

the Connecticut Supreme Court stated the jury could draw an in-

ference from the facts they found as the result of other inferences.

ARGUMENT

I.

THE DECISION OF THE SUPREME COURT

OF CONNECTICUT IS NOT A FINAL JUDGMENT

The petitioners application for this writ has resulted in a stay

of all further proceedings in the trial court. No judgment of con-

viction has been entered in the trial (Superior) court nor has the

petitioner been sentenced. When these actions are taken the

petitioner will have the right to a direct appeal of that conviction

to the Connecticut Supreme Court. Were it successful, such an

appeal would render moot the issues raised in this petition. This

court has adopted a policy against “interference with the state pro-

ceedings when the dispute may be otherwise resolved.” Costavelli

v. Massachusetts, 421 U.S. 193, 197 (1975). This policy would

appear to militate against the granting of this writ at this time.

Because no retrial will result from the remand in this case the

situation is not one where the petitioner will have his rights under

the Double Jeopardy Clause significantly undermined by postpon-

ing consideration until after judgment,sentencing and direct

appeal. Petitioner will not be forced to undergo a forbidden

second trial, the harm which was a significant basis of this courts

holding as to finality in Abney v. U. S., 431 U. S. 651 (1977).

II.

THIS CASE DOES NOT PRESENT AN

ISSUE MERITING REVIEW ON

CERTIORARI

A.

DOUBLE JEOPARDY ISSUE

This court has previously given clear guidance to the Courts

of Appeals and the appellate courts of the States concerning the

double jeopardy issue raised by the petitioner.

6

In United States v. Ceccolini, 435 U.S. 268 (1978) at page

270-271 the following appears:

“That court [The Second Circuit Court of Appeals]

rightly concluded that the government was en-

titled to appeal both the order granting the

motion to suppress and the order setting aside the

verdict of guilty [because the trial judge concluded

that without the suppressed evidence there was in-

sufficient evidence of respondents guilt], since

further proceedings if the government were suc-

cessful on the appeal would not be barred by the

Double Jeopardy Clause. . . . The District Court

had sensibly first made its finding on the factual

question of guilt or innocence, and then ruled on

the motion to suppress; a reversal of these rulings

would require no further proceedings in the Dis-

trict Court, but merely a reinstatement of the

finding of guilt.”

United States v. Wilson, 420 U. S. 332, 352-353 (1975) and

United States v. Jenkins, 420 U. S. 358 (1975) Loverruled on

other grounds, U. S. v. Scott, 437 U. S. 82 (1978)] both give

clear guidance that where no retrial is required a government

appeal does not run afoul of the Double Jeopardy Clause. In

United States v. Scott, supra, both the majority and dissenting

opinions recognized the continuing vitality of the principal that

in the absence of the need for a retrial no double jeopardy bar to

a government appeal exists. United States v. Scott, supra at page

92 n. 7 and at pages 105-106. As pointed out in this Court’s

opinions, a second trial for the same offense, with its attendant

increased anxiety, expense and risk is what the Double Jeopardy

Clause protects against. In the absence of the need for a retrial

it is submitted that the Double Jeopardy Clause does not apply.

United States v. Wilson, supra at page 336; United States v.

Martin Linen Supply, 430 U. S. 564, 568-570 (1977); Sanabria

v. United States, 437 U. S. 54, 63-64 (1978).

5

The Federal Courts of Appeals which have considered the issue

raised by petitioner have unanimously supported the respondent's

view-0f-the-applicability of the Double Jeopardy Clause to govern-

ment appeals under these facts. U. S. v. DeGarces, 518 F. 2d 1156

(2nd. Cir. 1975); U. S. v. Ceccolini, 542 F. 2d 136, 140 (2nd.

Cir. 1976), rev. on other grounds 435 U. S. 268 (1978); U.S.

v. Hannah, 584 F. 2d 27, 28 (3rd. Cir. 1978); U.S. v. Cahalane,

560 F. 2d 601, 602-604 (3rd. Cir. 1977), Cert. Den. 434 U. S.

1045 (1979); U. S. v.Moore, 586 F. 2d 1029, 1032 (4th. Cir.

1978); U. S. v. Mandel, 591 F. 2d 1347, 1374-1375 (4th. Cir.

1979); U.S. v. Burns, 597 F. 2d 939, 940-941 (Sth. Cir. 1979);

U.S. v. Cravero, 530 F. 2d 666, 669 (5th. Cir. 1976); U.S. v.

Jones, 580 F. 2d 219, 221-222 (6th. Cir. 1978); U. S. v. Blasco,

581 F. 2d 681 (7th. Cir. 1978), Cert. Den. —U. S—, 99 S. Ct.

456 (1979); U.S. v. Allison, 555 F. 2d 1386-1387 (7th. Cir.

1977); U.S. v. Donahue, 539 F. 2d 1131, 1133-1134 (Sth. Cir.

1976); U.S. v. Hemphill, 544 F. 2d 341, 343 (8th. Cir. 1976),

Cert. Den. 430 U. S. 467 (1977); U.S. v. Rojas, 554 F. 2d 938,

941-943 (9th. Cir. 1977); U. S. v. Calloway, 562 F. 2d 615,

616-617 (10th. Cir. 1977); U. S. v. Quarry, 576 F. 2d 830,

832-833 (10th. Cir. 1978).

A number of state appellate courts have reached the same con-

clusion as the Connecticut Supreme Court and the Federal Courts

of Appeals. People v. Gennings, 583 P. 2d 908, 910 (Colorado

1978); State v. Kleinwaks, 68 N. J. 328, 345 A. 2d 793 (1975);

State v. Lynch, 79 N. J. 327, 399 A. 2d 629, 635-636 (1979);

People v. Leach, 57 A.D. 2d 332, 394 N.Y.S. 2d 722 (N.Y.

Supreme Court App. Div. 2nd. Dept. 1977), Affirmed on opinion

below 46 N.Y. 2d 821, 414 N.Y.S. 121 (N.Y. Ct. of Appeals

1978).

B.

THE JACKSON v. VIRGINIA CLAIM

Petitioner’s reliance on this court’s holding in Jackson v. Vir-

ginia, — U. S.—, 61 L. 1d. 2d 560 (1979) is not appropriate.

8

A careful reading of that case reveals that it worked no change

in the measure of evidence sustaining a criminal conviction. That

case fully recognized that:

“... [O]nce a defendant has been found guilty

of the crime charged, the fact finder’s role as

weigher of the evidence is preserved through a legal

conclusion that upon judicial review all of the

evidence is to be considered in the light most

favorable to the prosecution.”

and that:

“The relevant question is whether, after viewing

the evidence in the light most favorable to the

prosecution amy rational trier of fact could have

found the essential elements of the crime beyond

a reasonable doubt.”

and further:

“,.. this inquiry does not require a court to ‘ask

itself whether it believes that the evidence at the

trial established guilt beyond a reasonable doubt.’ ”

Jackson v. Virginia, supra at 61 L. Ed. p. 573.

The thrust of the decision in Jackson was to extend the existing

law and make it applicable to Federal habeas review of state con-

victions in place of the former ‘no evidence” rule.

In this case the state’s medical witnesses testified that it was

determined or concluded that Mrs. Avcollie was strangled, not

that she might have been, or was likely to have been.

Petitioner argues his claim under Madore v. New Departure

Mfg. Co., 104 Conn. 709, 134 A. 259 (1926). That case has

been limited by the Connecticut Supreme Court to situations

where the expert testimony was clearly equivocal and was the only

evidence on which the trier of fact could rely. The trier of fact

still remains free, even where the scientific evidence is equivocal,

9

which it is not here, to look to the other evidence for clarification

and illumination. Humphrys v. Beach, 149 Conn. 14, 19-20, 175

A. 2d 363 (1961).

In this case the jury had substantial physical evidence concern-

ing the strangulation of Mrs. Avcollie. The autopsy revealed that

a necklace worn around her neck had been bent and compressed

causing injury to the skin beneath it. Deep internal injuries within

the neck corresponding to those on the outer skin were discovered

about either side of the thyroid cartilage and the spine. Small

hemorrhages from pressure on the cervical blood vessels were ob-

served in the eyes. All of these were photographed and the photo-

graphs were before the jury. The significance of each finding was

explained in detail by the expert witnesses. A defense expert con-

ceded that there was evidence of compression of the neck jewelry

around the entire circumference of the neck. An additional

autopsy finding presented to the jury was that there was no

evidence of water in the lungs despite the fact that the deceased

was found in a swimming pool.

The jury was entitled to evaluate a// of the evidence in reaching

a conclusion as to the manner of Mrs. Avcollie’s death. There

was ample evidence from which they could reasonably conclude,

beyond a reasonable doubt, that she was strangled and the victim

of a murder and not drowned as claimed by the defendant's ex-

perts.

10

For the reasons stated Respondent urges that the Petition be

denied.

CONCLUSION

RESPECTFULLY SUBMITTED,

THE STATE OF CONNECTICUT

Francis M. McDonald

State’s Attorney

Judicial District of Waterbury

Paul E. Murray

Assistant State’s Attorney

Judicial District of Waterbury

Richard Shiffrin

Assistant State’s Attorney

Office of the Chief State’s Attorney

11

APPENDIX

APPENDIX A

SUPREME COURT

STATE OF CONNECTICUT

No. 8747 No. 12468

STATEOF CONNECTICUT | SUPERIOR COURT

vs. JUDICIAL DISTRICT OF

BERNARD AVCOLLIE rt

JULY 26, 1979

ORDER CONCERNING STAY OF EXECUTION

In the above entitled matter, the defendant Bernard Avcollie,

by his attorney, John D. Jessep, having filed a Motion for Stay of

Execution of Sentence and Continuance of his release on his own

recognizance, see State v. Avcollie, 174 Conn. 100, 109, pending

decision on a Petition for Certiorari to the United States Supreme

Court, and it appearing that there is reasonable cause to grant the

motion for a stay, the motion is granted and execution and en-

forcement of the judgment in the case is stayed until October 15,

1979, or the sooner decision by the United States Supreme Court

of the defendant’s petition for a Writ of Certiorari, provided that

if the said Petition for Certiorari is granted then the stay shall con-

tinue until the decision by that court of the issues raised on the

defendant’s appeal.

This stay is conditioned that he shall abide by the order and

decision of the United States Supreme Court and that in the event

that the Writ of Certiorari shall be denied or that his appeal is

decided adversely to him, he will promptly thereupon surrender

to the sheriff for the Judicial District of Waterbury.

Counsel for the defendant, John D. Jessep, is directed to give

prompt notice to the clerk of the Superior Court for the Judicial

District of Waterbury and to the Office of Chief State’s Attorney,

1A

Austin J. McGuigan, and the Office of State’s Attorney, Francis

M. McDonald, Jr., of the receipt of any decision by the Supreme

Court of the United States on the defendant's Petition for Cer-

tiorari.

Chief Justice

CONNECTICUT SUPREME COURT

cc: John D. Jessep, Esq.

Koskoff, Koskoff & Bieder

55 Chapel Street, P. O. Box 1698

Bridgeport, Connecticut 06604

Austin J. McGuigan, Esq.q

Chief State’s Attorney

100 So. Turnpike Rd.

Wallingford, Connecticut 06492

Francis M. McDonald, Jr., Esq.

State’s Attorney

300 Grand Street

Waterbury, Connecticut 06702

Donald H. Dowling, Esq.

Reporter of Judicial Decisions

Supreme Court Building

Drawer N, Station A

Hartford, Connecticut 06106

Thomas H. Abraham, Esq.

Chief Clerk, Supreme Court

Drawer N, Station A

Hartford, Connecticut 06106

Francis J. Butler, Esq.

Clerk, Superior Court

300 Grand Street

Waterbury, Connecticut 06702

2A

APPENDIX B

No. 8747

STATE OF CONNECTICUT SUPREME COURT

VS. STATE OF CONNECTICUT

BERNARD AVCOLLIE OCTOBER 15, 1979

ORDER

The defendant’s motion for modification of stay, dated October

12, 1979, having been presented to the Honorable John P. Cotter,

Chief Justice, it is hereby

ORDERED that the stay entered by the court on July 26, 1979

in the above captioned matter shall continue until further order

of the court.

That on October 24, 1979, the court shall reconsider the instant

motion without entertaining oral argument by counsel:

That further memoranda in support or in opposition to the

instant motion sshall be filed no later than October 22, 1979

with the court.

Chief Justice

CONNECTICUT SUPREME COURT

3A

APPENDIX C

No. 8747

STATE OF CONNECTICUT SUPREME COURT

VS. STATE OF CONNECTICUT

BERNARD AVCOLLIE OCTOBER 24, 1979

ORDER ON MOTION FOR MODIFICATION OF STAY

On July 26, 1979, the Connecticut Supreme Court granted the

defendant a stay of execution until October 15, 1979 to obtain

review by the United States Supreme Court.

This court upon representation by the defendant that a petition

for certiorari has been filed on October 24, 1979, hereby modifies

its earlier order to the extent that an extension of time is granted

to the defendant by the Supreme Court of Connecticut until two

weeks after a decision has been rendered by the United States

Supreme Court on the defendant's petition for a writ of certiorari.

By the Court

Chief Justice |

CONNECTICUT SUPREME COURT

4A