Petition — Orsini v. Connecticut

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

CHESTER ORSINI,

Petitioner

Vv.

STATE OF CONNECTICUT,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF CONNECTICUT

JOHN R. WILLIAMS

Williams & Wise

265 Church Street

New Haven, Conn.

(203) 562-9931

Counsel for Petitioner

July , 1982

QUESTIONS PRESENTED

1. Was the petitioner denied due pro-

cess of law at his State criminal trial

when the Court instructed the jury simply

to choose between the comparative credibi--

lity of prosecution witnesses and defense

witnesses?

2. Was the Petitioner denied due pro-

cess of law by a persistent felony offender

conviction based solely upon a prior con-

viction for violation of an anti-abortion

statute which was unconstitutional under

the holdings of this Court in Roe v. Wade,

410 U.S. 113 (1973), and Connecticut v.

Menillo, 423 U.S. 9 (1975)?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED.......-se0:

OPINION BELOW... ccc ceeeccceccs

JURISDICTION... ...cceccceveseses

STATUTES INVOLVED........-ee0e8-

STATEMENT OF THE CASE.......++--

REASON FOR GRANTING THE WRIT....

I. The Petitioner Was Denied

Due Process of Law At His

State Criminal Trial When

the Court Instructed the

Jury Simply to Choose

Between the Comparative

Credibility of Prosecu-

tion Witnesses and Defense

| TTT ce eee

II. The Petitioner Was Denied

Due Process of Law By a

Persistent Felony Offender

Conviction Based Solely

Upon a Prior Conviction

for Violation of an Anti-

Abortion Statute Which Was

Unconstitutional Under the

Holdings of This Court in

Roe v. Wade, 410 U.S. 113

, and Connecticut v.

Menillo, 423 U.S. 9

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APPENDIX A (Supreme Court

BOGRGEEN bs 0.0 kbc unoe<

Page

oun NY

10

14

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APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

(ii)

(Motion to

Reargue) ......2s20

(Order Debying Motion

to Reargue) ......+-

(Letter of June 16,

1982 Denying Motion

to Reargue) .......+.

(Appendix to Brief

of the Defendant...

1b

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1d

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(iii)

TABLE OF AUTHORITIES

Cases:

Abele v. Markle,

369 F.Supp. 807

(D.Conn. Bees cwadevtocce

Baldasar v. Illinois,

446 U.S. 222 (1980)......

Burgett v. Texas,

389 U.S. 109 CACO vcobee

Connecticut v. Menillo,

San 0.0. FD CaP eeds cccece

Lady Jane v. Maher,

420 F.Supp. 318

(D.Conn.(, aff'd sub

nom. Maloney v. Lady Jane,

431 U.S. 926 (1976)......

Lewis v. United States,

445 U.8. SS (1980) ...cccce

Roe v. Wade,

410 U.S. 113 (1973)......

State v. Orsini,

155 Conn. 367,

232 A.2d 907 (1967)......

United States v. Alfonzo-Perez,

535 F.2d 1362

(2d Cir. oe) en a

United States v. Brown,

582 F.2d 197, 201-02

(2a Cir.), cert. denied

439 U.S. 915 (1978)......

Page

(iv)

United States v. Guest,

514 F.2d 777

Caee GEls: Sete coccceeves 8

United States v. Oquendo,

490 F.2d 161, 166

CSER CAS. AP7E) vccecsecseve 9

United States v. Pine,

609 F.2d 106, 108

(3d Cir. BUUEE é.ceccececete 8

United States v. Tucker,

404 U.S. 443 (1972)...... 12

United States ex rel. Orsini

v. Reincke,

286 F.Supp. 974

(D.Conn.), aff'd

397 F.2d 977

(a8. Gass: SETS) eccriccdves 10,11

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

CHESTER ORSINI,

Petitioner

Vv.

STATE OF CONNECTICUT,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF CONNECTICUT

The petitioner, Chester Orsini,

respectfully prays that a writ of certio-

rari issue to review the judgment and

opinion of the Supreme Court of the State

of Connecticut entered in this proceeding

on June l, 1982.

OPINION BELOW

The opinion of the Supreme Court of

the State of Connecticut is reported at

187 Conn. 264 (1982), and appears in the

Appendix hereto. A motion to reargue was

filed on June 4, 1982, and was denied on

June 16, 1982. The motion and the order

7 ae

-

2

are printed in the Appendix hereto. On

June 16, 1982, the Connecticut Supreme

Court, suo motu, amended its opinion, and

the notification of such amendment from

the reporter of Judicial Decisions also is

printed in the Appendix hereto.

JURISDICTION

The opnion of the Supreme Court of

the State of Connecticut was entered on

June 1, 1982. A timely motion to reargue

was denied on June 16, 1982, and this

petition for certiorari was filed within

60 days of that date. This Court's juris-

diction is invoked under 28 U.S.C. §1257

(3).

STATUTES INVOLVED

CONSTITUTION OF THE UNITED STATES,

AMENDMENT XIV:

Section 1. .... No State shall

make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the

laws.

3

CONNECTICUT GENERAL STATUTES,

SECTION 53a-48(a):

Sec. 53a-48(a). Conspiracy. Renun-

ciation. (a) A person is guilty of con-

spiracy when, with intent that conduct con-

stituting a crime be performed, he agrees

with one or more persons to engage in or

cause the performance of such conduct, and

any one of them commits an overt act in

pursuance of such conspiracy.

SECTION 53a-122(a) (2):

Sec. 53a-122(a) (2). Larceny in the

first degree: Class B felony. (a) A per-

. gon is guilty of larceny in the first

degree when: (2) the value of the property

or service exceeds two thousand dollars.

SECTION 53a-123(a) (2):

Sec. 53a-123(a)(2). Larceny in the

second degree: Class D felony. (a) A

person is guilty of larceny in the second

degree when: (2) the value of the property

or service exceeds five hundred dollars.

SECTION 53a-40(b):

Sec. 53a-40(b). Persistent offender:

Definitions; defense; authorized sentences.

(b) A persistent felony offender is a

4

person who (1) stands convicted of a

felony; and (2) has been, prior to the

commission of the present felony, convict-

ed of and imprisoned under an imposed term

of more than one year or of death, in this

state or in any»other state or in a federal

correctional institution, for a crime.

This subsection shall not apply where the

present conviction is for a crime enumer-

ated in subdivision (1) of subsection (a)

and the prior conviction was for a crime

other than those enumerated in subsection

(a).

SECTION 53a-40(f):

Sec. 53a-40(f). When any person has

been found to be a persistent felony

offender, and the court is of the opinion

that his history and character and the

nature and circumstances of his criminal

conduct indicate that extended incarcera-

tion will best serve the public interest,

the court in lieu of imposing the sentence

of imprisonment authorized by section

53a-35 for the crime of which such person

presently stands convicted, may impose the

sentence of imprisonment authorized by said

section for the next more serious degree of

felony.

ou

SECTION 53-29:

Sec. 53-29. ATTEMPT TO PROCURE MIS-

CARRIAGE. Any person who gives or admini-

sters to any woman, or advises or causes

her to take or use anything, or uses any

means, with intent to procure upon her a

miscarriage or abortion, unless the same

is necessary to preserve her life or that

of her unborn child, shall be fined not

more than one thousand dollars or impri-

soned in the State Prison not more than

five years or both.

STATEMENT OF THE CASE

Chester Orsini, the Petitioner here-

in, was convicted in the Connecticut

Superior Court at Middletown, on May 19,

1976, of one count of larceny in the first

degree, one count of conspiracy to commit

larceny in the second degree, and persist-

ent felony offender. Upon a direct appeal,

his conviction was affirmed by the

Connecticut Supreme Court on June l, 1982.

Two prosecution witnesses testified

at trial that on three separate occasions

in late 1974 or early 1975 they burglarized

a private residence in the Town of West-

brook, Connecticut, and on all three occa-

6

sions stole quantities of antique fire-

arms. One of the two witnesses testified

that he sold of the weapons to Mr. Orsini,

advising Mr. Orsini of their illegal

source. Defense witnesses testified, on

the contrary, that Mr. Orsini had pur-

chased the firearms in a good-faith busi-

ness transaction without any knowledge that

they had been stolen.

Over a timely objection, the trial

court instructed the jury in relevant part

as follows: "Now, that sort of pretty much

sums up the specific crimes, and in a

moment I will be through. In other words,

you will have to decide, on the basis of

all the evidence presented before you,

whether the State has proved, beyond a

reasonable doubt, all of the elements of

the crimes with which the accused is

charged, as I have explained those ele-

ments to you. You will have to decide

whether you believe the State's witnesses

as to the commission of these crimes, and

the participation of the accused, or

whether you believe the testimony of the

defendant's witnesses as to the defend-

ant's innocence. In essence, it is as

simple as that." (Jury Charge, Tr. p. 626)

7

After Mr. Orsini was convicted on the

larceny and conspiracy counts, he was tried

to the court on a charge of being a per-

sistent felony offender. He was found

guilty upon the basis of a 1965 Connecti-

cut conviction for the crime of aiding

and abetting the commission of an abortion

in violation of §53-29 of the Connecticut

General Statutes.

Affirming Mr. Orsini's conviction in

this case, the Connecticut Supreme Court

disapproved the quoted portion of the jury

charge, but held that in the context of

the entire charge to the jury the improper

portion was not sufficiently prejudicial

to warrant reversal. 187 Conn. at 276-77.

With respect to the persistent felony

offender conviction, the Connecticut

Supreme Court held that the defendant on

appeal had the burden of proving that his

abortion conviction was obtained in viola-

tion of Roe v. Wade, 410 U.S. 113 (1973),

as applied to the Connecticut law in

Connecticut v. Menillo, 423 U.S. 9 (1975).

The Court held that the record was ambi-

guous on the question of whether the person

performing the abortion had been a layman

8

or a physician, and accordingly rules that

the underlying conviction was not uncon-

stitutional. 187 Conn. at 277-80.

REASONS FOR GRANTING THE WRIT

I

The Petitioner Was Denied Due

Process of Law At His State

Criminal Trial When the Court

Instructed the Jury Simply to

Choose Between the Comparative

Credibility of Prosecution Wit-

nesses and Defense Witnesses,

Comparative credibility instructions

vf the type utilized in this case had been

widely condemned as violating the presump-

tion of innocence and thus denying due

process of law. E.g., United States v.

Guest, 514 F.2d 777 (lst Cir. 1975);

United States v. Brown, 582 F.2d 197, 201-

02 (2d Cir.), cert. denied, 439 U.S. 915

(1978); United States v. Pine, 609 F.2d

106, 108 (3d Cir. 1979). As the Connect-

icut Supreme Court pointed out in its

opinion in this case, “the flaw in such a

charge is that it invites the jury to treat

the matter of proof as a ‘fair fight' bet-

ween the prosecution and the defense

9

rather than as one weighted in favor of

the latter by the necessity of proving

guilty beyond a reasonable doubt." 187

Conn at 276. Citing United States v.

Oguendo, 490 F.2d 161, 166 (5th Cir. 1974)

(Gee, J., concurring).

In this particular case, there was a

great likelihood of prejudice from the

instruction given. The petitioner did not

testify on his own behalf. The witnesses

he called testified that he had, indeed,

been in possession of the stolen items but

claimed his possession was honest and in

good faith. He relied on cross-examina-

tion of prosecution witnesses to establish

his claim that he had not been involved in

any way, before or after the fact, in the

burglaries in question. By telling the

jury that guilt or innocence should be

determined upon the basis of the compara-

tive credibility of witnesses, the Court

emphasized the petitioner's failure to

testify on his own behalf, implicitly call-

ing for an adverse inference from his

silence. See, e.g., United States v.

Alfonso-Perez, 535 F.2d 1362 (2d Cir.

1976). On the facts of this particular

10

case, even viewed in the context of the

entire charge, the "comparative credibi-

lity" charge given by the Court denied

due process of law to the petitioner.

Because of the particular prejudice

demonstrated in this case, it presents a

compelling set of facts for review by this

court of the “comparative credibility”

jury instruction which has provoked so

much adverse commentary from the lower

courts.

It

The Petitioner Was Denied Due

Process of Law By a Persistent

Felony Offender Conviction Based

Solely Upon a Prior Conviction

for Violation of an Anti-Abortion

Statute Which Was Unconstitutional

Under the Holdings of This Court

in Roe v. Wade, 410 U.S. 113

(1973), and Connecticut v. Menillo,

423 U.S. 9 (IS75).

In 1965, Mr. Orsini was convicted in

the Connecticut Superior Court at New

Haven of aiding and abetting the comnis-

sion of an abortion. That conviction was

subsequently affirmed on appeal, State v.

Orsini, 155 Conn. 367, 232 A.2d 907 (1967),

and federal habeas corpus relief was

denied, United States ex rel. Orsini v.

1l

Reincke, 286 F.Supp. 974 (D.Conn.), aff'd

397 F.2d 977 (2d Cir. 1968). In the

present case, he was charged and con-

victed as a persistent felony offender

upon the basis only of that 1965 convic-

tion.

In 1973, the Connecticut Abortion

Statute was declared unconstitutional by

the United States Discrict Court. Abele

v. Markle, 369 F.Supp. 807 (D.Conn. 1973).

The ultimate authority for the declaration

of unconstitutionality was, of course, this

Court's ruling in Roe v. Wade, 410 U.S.

113 (1973). See generally Lady Jane v.

Maher, 420 F.Supp. 318 (D.Conn.), aff'd

sub nom. Maloney v. Lady Jane, 431 U.S.

926 (1976). Prior to this Court's affirm-

ance of Lady Jane, it qualified its inter-

. pretation of the Connecticut Abortion

Statute in Connecticut v. Menillo, 423 U.S.

9 (1975), holding that the statute was not

unconstitutional when applied to perform-

ance of an abortion by a non-physician.

In the present case, the Connecticut

Supreme Court relied on Connecticut v.

Menillo to affirm Mr. Orsini's persistent

felony offender conviction. In doing so,

12

the Connecticut Supreme Court ignored the

facts of its own cases and, mcre import-

antly for present purposes, misconstrued

this Court's holdings in Roe, Menillo, and

Lady Jane.

The Connecticut Supreme Court agreed

with the petitioner "that a conviction

which has been procured in violation of

constitutional rights cannot be used to

increase the punishment which would ordi-

narily be permissible." Citing Baldasar

v. Illinois, 446 U.S. 222 (1980); United

States v. Tucker, 404 U.S. 443 (1972);

Burgett v. Texas, 389 U.S. 109 (1967);

Lewis v. United States, 445 U.S. 55 (1980).

The Court consulted its prior opinion in

State v. Orsini, 155 Conn. 367, supra, and

attempted to find a basis for suggesting

that the person aided and abetted by Mr.

Orsini in that case was not a physician.

In its original opinion in this case, the

Connecticut Supreme Court claimed that the

abortion in question "was performed by the

defendant's brother in a motel room...."

That opinion was subsequently amended to

strike the claim that Mr. Orsini's brother

had been involved, when it was pointed out

to the Supreme Court that its own previous

13

decision had expressly stated that the

abortion was performed by an individual

from Trenton, New Jersey, known in the

State of New Jersey as "Dr. Walker". In

fact, as is made clear in the original

Orsini opinion at 155 Conn., there is no

indication one way or the other respecting

the physician status of the individual

Orsini had assisted although there are some

indicetions that the individual was con-

sidered to be a physician.

What the Connecticut Supreme Court

ignored, however, was that Mr. Orsini was

not charged with or convicted of aiding in

the performance of an abortion by a non-

physician. Evidence was not presented at

his trial to show that the individual per-

forming the abortion was not a physician

and there is no such allegation in the

pleadings. Accordingly, he was convicted

of a charge which was invalid on its face

and invalid under the evidence as present-

ed.

As the Connecticut Supreme Court it-

self noted, the silence of the record with

respect to a constitutional question raised

by an underlying conviction in a persistent

14

felony offender prosecution is sufficient

to invalidate a persistent felony offender

conviction. Citing Burgett v. Texas, supra,

at 114-15. State v. Orsini, 187 Conn. at

279. The Connecticut Supreme Court ignored

its own observation respecting the prior

holdings of this Court, and ruled that

since there was no evidence on the record

cf the underlying conviction to indicate

whether it was obtained under constitution-

aliy permissible or constitutionally in-

permissible circumstances, the Court would

presume that the facially invalid statute

was applied in a lawful manner. Such a

presumption is utterly unwarranted and is

not authorized by any applicable case law.

CONCLUSION

For these reasons, a writ of certio-

rari should issue to review the judgment

and opinion of the Supreme Court of the

State of Connecticut.

Respectfully submitted,

JOHN R. WILLIAMS

265 Church Street

New Haven, Ct. 06510

(203) 562-9931

DATED: June , 1982