# Opposition — Avcollie v. Connecticut > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1127%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1015 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1127%3A2. Public record. Not legal advice.