Petition — Avcollie v. Connecticut

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IN THE

Supreme Cot of the United States

Ocroser Term 1982

Brernarp AVCOLLIE,

Petitioner,

Stare or CoNNECTICUT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CONNECTICUT

Joun D, Jessep

Koskorr, Kosxorr & Biever, P.C.

55 Chapel Street

Bridgeport, Connecticut 06604

(203) 336-4421

Counsel for Petitioner

QUESTIONS PRESENTED

When a criminal defendant claims

that his indictment was returned by

a grand jury selectec in an uncon-

stitutional manner, is the criminal

defendant entitled to present testi-

mony from the grand jurors who

indicted him concerning the racial

composition of the indicting grand

jury and of previous grand juries

upon which they served?

Does a jury charge instructing that

every person is presumed to intend

the natural and necessary conse-

guences of his acts relieve the

State of proving the element of

intent or burden the defendant with

disproving the presumed intent if it

also instructs that a_ person's

intention may be inferred from his

conduct?

When the state introduces evidence

of a criminal defendant's insanity

during the state's rebuttal case and

the jury is instructed that sanity

is an element of the offense, can

there be sufficient evidence to sus-

tain a conviction when no evidence

of sanity was ever introduced?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS OF LOWER COURTS

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF THE CASE

PRIOR HEARINGS ON ISSUES

RAISED HEREIN

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX

MOTION TO DISMISS INDICTMENT

MEMORANDUM OF DECISION ON

MOTION TO DISMISS ON

INDICTMENT

MOTION TO SET ASIDE ENTRY

OF VERDICT, MOTION FOR

ACQUITTAL,AND MOTION

IN ARREST OF JUDGMENT

MEMORANDUM OF DECISION OF

DEFENDANT'S MOTION TO

SET ASIDE ENTRY OF

VERDICT, ETC.

16a

24a

TABLE OF CONTENTS

OPINION OF CONNECTICUT SUPREME

COURT IN STATS V. AVCOLLIZ

MOTION FOR REARGUMENT

28a

46a

TABLE OF CASES

AND AUTHORITIES

Cases

Castanada v. Partida,

430 U.S. 482 (1977)

Cobbs v. Robinson, 528

F.2d L33l (ad Cir. 1975)

Coleman v. Alabama, 377

U.S. 129 (1964)

In re Winship, 397 U.S.

358 (1970)

Moye _v. Connecticut,

4 U. . ( 9)

Peters v. Kiff, 407 U.S.

493 (1972)

Rose v. Mitchell,

443 U.S. 545 (1975)

Sandstrom v. Montana,

422 U.S. 510 (1979)

State v. Arroyo, 180 Conn.

171, 429 A.2d 457 (1980)

State v. Avcollie, 188

Conn. 7 4

A.2d 418 (1982)

State v. Avcollie, 178 Conn.

450, 423 A.2d 118 (1979)

State v. Avcollie, 174 Conn.

100, 384 A.od 315 (1977)

22,28

TABLE OF CASES

AND AUTHORITIE 3

Cases Page

State v. Brokaw, 183 Conn.

29, A.2d (1981) 22

State v. Davis, 158 Conn.

341, 260 A.2d 587 (1969) 26

Sta’:e v. Mason, 186 Conn.

574, 442 A.20 1335 (1982) 22

State v. Move, 177 Conn.

487, 418 Ad 870 (1979) 21

State v. Move, 179 Conn. 758

409 A.2d 149 (1979) 22

State v. Perez, 181 Conn.

299, 435 A.2d 334 (1980) 22

Taylor v. Louisiana,

419 U.S. 522 (1975) 15

Other Authorities

18 U.S.C. §243 4,15

28 U.S.C. §1257 (3) 2

OPINIONS OF LOWER COURTS

Following the jury's verdict of

guilty in petitioner's trial, the judge

set aside the verdict and entered a

judgment of acquittal ruling that the

state had not sustained its burden of

proof. The state appealed the trial

judge's ruling to the Connecticut

Supreme Court and the petitioner moved

to dismiss the state's appeal on double

jeopardy grounds. The Connecticut

Supreme Court's opinion denying the

petitioner's motion to dismiss is found

in State v. Avcollie, 174 Conn. 100,

384 A.2d 315 (1977).

The Connecticut Supreme Court

subsequently heard the state's appeal on

the merits and reversed the trial

judge's setting aside of the jury's

guilty verdict and entry of judgment of

acquittal, State v. Avcollie, 178 Conn.

450, 423 A.2d 118 (1979), cert. den. 444

U.S. 1015 (1980).

The case was remanded and peti-

tioner was sentenced to an 18 year to

life term of imprisonment whereupon

petitioner appealed to the Connecticut

Supreme Court. The Connecticut Supreme

Court affirmed his conviction in State

v. Avcollie, 188 Conn. 626, 453 A.2d 418

(1982) and on January 3, 1983 the

Connecticut Supreme Court denied

petitioner's Motion for Reargument.

JURISDICTION

The opinion of the Connecticut

Supreme Court was rendered on December

14, 1982 and it denied reargument on

January 3, 1983.

Jurisdiction to review this case

is conferred on this Court by 28 U.S.C.

§1257 (3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., Amend. XIV

". « « MO state shall...

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.”

Connecticut General Statute 53a-54a.

(a) A person is guilty of murder

when, with intent to cause the

death of an other person, he

causes the death of such person

or of a third person ¢r causes a

suicide by force, duress or

deception; except that in any

prosecution under this subsec-

tion, it shall be an affirmative

defense that the defendant acted

under the influence of extreme

emotional disturbance for which

there was a reasonable

explanation or excuse, the

reasonableness of which is to be

determined from the viewpoint of

a person in the defendant's

situation under the circumstances

as the defendant believed them to

be, provided nothing contained in

this subsection shall constitute

a defense to a prosecution for,

Or preclude a conviction of, man-

Slaughter in the first degree or

any other crime.

(b) Evidence that the defendant

suffered from a mental disease,

mental defect or other mental

abnormality is admissible, in a

prosecution under subsection (a),

on the question of whether the

defendant acted with intent to

cause the death of another

person.

Class A felony unless it is a

capital felony and the death

penalty is imposed as provided by

section 53a-54a.

18 U.S.C. §243

No citizen possessing all other

qualifications which are or may

be prescribed by law shall be

disqualified for service as grand

or petit juror in any court of

the United States, or of any

State on account of race, color,

or previous condition of

servitude; and whoever, being an

officer or other person charged

with any duty in the selection or

summoning of jurors, excludes or

fails to summon any citizen for

such cause, shall be fined not

more than $5,000.

STATEMENT OF THE CASE

Petitioner's wife was found dead

in the family swimming pool on October

30, 1975. On November 20, 1975 the

State requested that a grand jury be

impanelled the next day; that the grand

jury proceedings be held in secret and

that the petitioner be excluded from the

grand jury room thereby precluding him

from questioning the witnesses appearing

before the grand jury, in contravention

of the usual Connecticut practice, Cobbs

Vv. Robinson, 528 F.2d 1331 (2d Cir.

1975). The court granted this request.

A sheriff impanelled a grand jury

by telephoning people who had appeared

on . prior grand juries rather’ than

following the usual Connecticut practice

of serving a summons on persons whose

names had been obtained from a computer.

The resultant grand jury did not have an

attorney as foreperson, also in

contravenzion of usual Connecticut

practice, id. On November 21, 1975

petitioner was indicted by this grand

jury for the intentional murder of his

wife.

On May 12, 1976 petitioner filed

@ Motion to Dismiss the indictment

(Appendix atla ), Claiming inter alia

that the indictment was invalid because

it was returned by a grand jury selected

in an unconstitutional manner thereby

denying petitioner his rights of due

process and equal protection under the

Connecticut and United States

Constitutions. In support thereof peti-

tioner subpoenaed the sheriff who

impanelled the grand jury and the 18

grand jurors as well as the two alter-

nates.

The state moved to guash the

subpoenaes and the court granted the

motion in spite of petitioner's repre-

Sentations that he would not seek to pry

into the Secrecy of the grand jury's

deliberations. At this KE2aring peti-

tioner and the trial court agreed that

there were no "non-caucasions" among

petitioner's grand jurors. The court

eventually denied petitioner's Motion to

Dismiss in an opinion dated July 27,

1976 (Appendix at Sa ); this decision

was affirmed by the Connecticut Supreme

Court on December 14, 1982 (Appendix at

28a ).

At petitioner's trial during the

state's rebuttal evidence, the state

introduced evidence that the alleged

victim, petitioner's wife, thought that

petitioner was insane. Petitioner did

not object to this evidence nor to the

trial judge's instruction that sanity

was an element of the case which the

state was burdened with proving beyon? a

reasonable doubt.

Another part of the trial judge's

jury instructions as part of the charge

on the element of "intent", instructed

the jury that ". .. Every person is

presumed to intend the natural and

necessary consequences of his acts."

Petitioner did not object to this in-

struction when it was given. He did

voice his objection by way of a Motion

to Set Aside Entry of Verdict, Motion

for Acquittal and Motion in Arrest of

Judgment, filed January 28, 1980 (Appen-

dix at l6éa ). The issue was heard and

decided on appeal by the Connecticut

Supreme Court on December 14, 1982.

The jury returned a verdict of

guilty after disclosing a deadlock of

ll-l in favor of conviction and being

given an Allen-type charge.

Subsequently the trial court set

aside the verdict of guilty and entered

a judgment of acquittal.

PRIOR HEARINGS ON

THE ISSUES RAISED HEREIN

The issue of the quashing of the

subpoenaes issued to members of the

indicting grand jury was heard in

the trial court on June 3, 1976 and

heard in the Connecticut Supreme

Court in State _v. Avcollie, 188

Conn. 626, 453 A.2d 418 (1982).

The issue of the trial judge's

instruction that “[e]very person is

presumed to intend the natural and

necessary consequences of his acts"

was first raised via motion filed

January 28, 1980 following’ the

Connecticut Supreme Court's decision

in State v. Avcollie, 178 Conn. 450,

423 A.2d 118 (1979) that there were

sufficient facts to support a guilty

verdict. This issue was decided by

the Connecticut Supreme Court in

State v. Avcollie, 188 Conn. 626,

453 A.2d 418 (1982).

The issue of the proof and jury

instruction on the element of sanity

was first raised by a brief filed

after remand on February 28, 1980 as

part of Petitioner's Motion to Set

Aside Entry of Verdict, Motion for

Acquittal and Motion in Arrest of

Judgment, following the Connecticut

Supreme Court's decision in State v.

Avcollie, 178 Conn. 450, 423 A.2d

118 (1979); it was not raised

earlier in the trial court inasmuch

as the trial court granted the peti-~

tioner's motion to set aside the

guilty verdict based upon insuffi-

cient evidence. The issue of proof

and jury instruction were argued

before the Connecticut Supreme Court

but the Court refused to address the

jury instruction issue because the

petitioner made no objection to it

at trial. The Connecticut Supreme

Court failed to address the suffici-

ency of evidence argument, State v.

Avcollie, 188 Conn. 626, 453 A.24d

418 (1982).

REASON FOR GRANTING THE WRIT

WHEN A CRIMINAL DEFENDANT CLAIMS

THAT HIS INDICTMENT WAS RETURNED BY

A GRAND JURY SELECTED IN AN

UNCONSTITUTIONAL MANNER, THE CRI-

MINAL DEFENDANT IS ENTITLED TO

PRESENT TESTIMONY FROM THE GRAND

JURORS WHO INDICTED HIM CONCERNING

THE RACIAL COMPOSITION OF THE

INDICTING GRAND JURY AND PREVIOUS

GRAND JURIES UPON WHICH THEY SERVED.

Petitioner had moved to dismiss

the indictment returned against him on

the grounds that his indictment was

invalid because it was returned

by a Grand Jury selected in an

unconstitutional manner, thereby

denying to the defendant due

process of law under the Sth and

14th Amendments to the United

States Constitution and Article

1, Sec. 9 of the Connecticut

Constitution, and also denying

the defendant the equal protec-

tion of the laws under the 14th

Amendment to the United States

Constitution.

(Appendix at 2a ).

In support of his motion he had

subpoenaed the 18 grand jurors and the

two alternates who sat on his grand

jury; the State moved successfully to

quash these subpoenaes.

Petitioner argued that quashing

the subpoenaes would preclude petitioner

from satisfying his burden of proving

discrimination and improper selection.

Petitioner assured the court that he

would not inquire into the deliberations

of the grand jurors but did wish to

inguire regarding their previous service

as grand jurors. He stated that from

their presence in court it could be

noted that there were no non-caucasians

among the 18 members and 2 alternates.

The state argued that the peti-

tioner had no possible complaint unless

the petitioner himself was a member of

the class whose systematic exclusion he

complains of.

To demonstrate the systematic

exclusion of a class from membership on

Grand jurors, it was incumbent on Mr.

Avcollie to demonstrate 3 things:

1. That the procedure employed to

select the grand jurors resulted in

a substantial underrepresentation of

a race or class which is singled out

for different treatment under the

laws as applied.

2. That this degree of underrepresenta-

tion, shown by comparing the propor-

tion of the group in the total

population to the proportion called

to serve as grand jurors, has

existed for a significant period of

time; and

3. That the selection procecure is

susceptible to abuse.

Castanada_v. Partida, 430 U.S. 482

(1977).

The fact that all of the grand

jurors were caucasians would indicate

that petitioner would be able to show

that the sheriff's selection procedure

had resulted in a grand jury composed

exclusively of white persons. The

State's argument to quash the subpoenaes

contained the admission that these grand

jurors had served the court without

complaint for many years. This would

make the grand jurors firsthand know-

ledgeable witnesses about the racial

composition of the prior grand juries

that they had served upon. While these

were questions that petitioner might

have asked the sheriff who had summoned

the prior grand juries, that sheriff had

already testified and his testimony had

been inaccurate in several respects

regarding the last minute telephoning of

the indicting grand jurors. Also the

sheriff should not be expected to give

information amounting to an admission of

discrimination of grand juror membership

when to do so might be tantamount to

admission of a crime under 18 U.S.C.

§243. Clearly inquiry of the grand

jurors themselves about their prior

grand jury experience would have brought

more than one memory to bear on past

practices without the biases of the

sheriff.

Peters v. Kiff, 407 U.S. 493

(1972) and Taylor v. Louisiana, 419

U.S. 522 (1975) clearly demonstrate

that, contrary to the state's argument,

one need not be a menser of the class

whose systematic exclusion he complains

of to mount a successful challenge to

the composition of his grand jury.

Furthermore, in Rose v. Mitchell, 443

U.S. 545 (1975) 10 of the ll indicting

grand jurors testified regarding racial

discrimination in grand juror selection.

Finally, Coleman _v. Alabama, 377 U.S.

129 (1964) dictates that a criminal

defendant is entitled to his day in

court on the issue of improper grand

juror selection. Because the petitioner

herein was improperly excluded from

being present before the grand jury,

State v. Avcollie, 182 Conn. 626, 633

453 A.2d 418 (1982) he was unable to see

the grand jurors who indicted him and

make a visual determination of whether

Blacks, Hispanics, Women or any other

classes of persons were excluded

therefrom. Therefore petitioner was

lef with only two categories of evi-

dence from which he could show present

and prior grand jury discrimination:

the sheriff who impanelled the grand

juries and the grand jurors themselves

who had all, as previously noted, served

the court without complaint for many

years.

The Connecticut Supreme Court's

ruling that defendant had not laid a

sufficient "foundation" is belied by the

petitioner's showing that the indicting

grand jurors were all caucasions. That

would indicate that petitioner had sub-

Stantial evidence toward point one of

the Castenada criteria. Showing that

the sheriff had merely telephoned

veteran grand jurors whom he knew

personally from prior service and who

might appear on less than 24 hours,

notice would tend to demonstrate that

this "selection procecure was ‘suscept-

ible to abuse” Castenada, supra. The

issue of prior history of underrepre-

sentation would have been served by

questioning the grand jurors themselves

and from this inquiry the petitioner was

precluded. It would therefore seem that

a proper "“foundation" entitling peti-

tioner to inquire further had been laid

by petitioner's demonstrating that the

grand jury which indicted him was all

white and that the sheriff had selected

people whom he knew from prior grand

jury service who would appear on less

than 24 hours telephone notice.

A writ of certiorari should issue

to the Connecticut Supreme Court because

of the Connecticut Supreme Court's fail-

ure to adhere to the teachings of

Coleman v. Alabama.

II.

A JURY CHARGE INSTROCTING THAT

EVERY PERSON IS PRESUMED TO INTEND

THE NATURAL AND NECESSARY CONSE-

QUENCES OF HIS ACTS RELIEVES THE

STATE OF PROVING THE ELEMENT OF

INTENT AND BURDENS THE DEFENDANT

WITH DISPROVING INTENT EVEN IF IT

ALSO INSTRUCTS THAT A_ PERSON'S

INTENTION MAY BE INFERRED FROM HIS

CONDUCT.

In its instructions to the jury

the element of intent, the trial

court charged that:

The third element which the state

must prove is that the person

causing the death of the person

must have done so with the intent

to cause the death. In other

words, the state must-_ prove

beyond a reasonable doubt that

the accused did strangle Wanda

Avcollie, with intent to cause

her death.

Now, intent is a mental process.

A person's intention may be

inferred from his conduct. Every

person is presumed to intend the

natural and necessary conse-

quences of his acts. It is often

impossible and not necessary to

prove criminal intent by direct

evidence. Ordinarily, intent can

be proved only by circumstantial

evidence, as I have explained

that term to you.

What a person's purpose or inten-

tion has been is necessarily very

largely a matter of inference. A

person may take the stand and

testify directly as to what his

or her purpose or intention was,

and that testimony you may

believe or not, according to

whether or not it warrants

belief. But no witness can be

expected to come here and testify

that he looked into another

person's mind and saw therein a

certain purpose or _ intention.

The only way in which a jury can

determine what a person's purpose

or intention was at a given time,

aside from the person's own

testimony, is by determining what

that person's conduct was and

what the circumstances were sur-

rounding that conduct, and from

those infer what his purpose or

intention was. To draw such an

inference is not only the privi-

lege but it is also the duty to

you, the jury, provided, of

course, the inference drawn is a

reasonable one.

In this case, therefore, it will

be part of your duty to draw all

reasonable inferences from the

conduct of the accused in the

light of the surrounding circum-

Stances as to what purpose or

intention was in his mind at

various times during the evening

when the death of the victim

occurred.

In order for the accused to be

found guilty of the charge of

murder, you must fine beyond a

reasonable doubt that he had an

intent to cause the death of

Wanda Avcollie. If you do not

find beyond a reasonable doubt

that the accused had that intent,

then he is not guilty of the mur-

der of Wanda Avcollie.

(Appendix at 19a ).

The phrase "[e]very person is presumed

to intend the natural and necessary

consequences of his acts" was condemned

by this Court in Sandstrom _yv. Montana,

422 U.S. 510 (1979). Shortly there-

after, a jury charge identical to that

quoted above from petitioner's trial was

before this Court in Moye Vv.

Connecticut, 444 U.S. 983 (1979). In

Moye, this Court vacated the Connecticut

Supreme Court's prior approval of this

jury charge in State v. Moye, 177 Conn.

487, 418 A.2d 870 (1979) and remanded

Moye to the Connecticut Supreme Court

for consideration in light of Sandstrom.

Upon remand, the Connecticut Supreme

Court set aside Moye's murder conviction

and granted Moye a new trial, State v.

Move, 179 Conn. 758, 409 A.2d 149

(1979).

Since setting aside the convic-

tion on Moye, the Connecticut Supreme

Court has reverted to approving the very

jury instruction which prompted this

Court to vacate in Move v. Connecticut;

see generally State vy. Arroyo, 180

Conn. 171, 429 A.2d 457 (1980); State v.

Perez, 181 Conn. 299, 435 A.2d 334

(1980); State v. Brokaw, 183 Conn. 29,

A.22 (1981); State vy.

Mason, 186 Conn. 574, 442 A.2d 1335

(1982); State v. Avcollie, 188 Conn.

626, 453 A.2d 418 (1982). These deci-

sions demonstrate that the Connecticut

Supreme Court has retreated from the

dictates of this Court in Sandstrom and

Moye, requiring that this Court grant a

writ of certiorari.

III. WHERE THE STATE INTRODUCES EVI-

DENCE OF THE DEFENDANT'S “INSANI-

TY" DURING THE STATE'S REBUTTAL

CASE, AND THE TRIAL COURT

INSTRUCTS THE JURY THAT SANITY IS

AN ELEMENT OF THE OFFENSE THAT

MUST BE PROVEN BEYOND A REASON-

ABLE DOUBT, CAN THERE BE SUFFICI-

ENT EVIDENCE TO SUSTAIN DEFEND-

ANT'S CONVICTION WHEN NO EVIDENCE

OF SANITY WAS INTRODUCED?

The defense offered no evidence

of mental disturbance but the State

elicited testimony from Elizabeth Ann

Brown that on October 17, 1975 (two

weeks before her death), Mr. Avcollie's

wife

said that she thought that Bernie

was sick and needed help and what

she was going to try and do is to

get him to go away for a weekend.

And she was going to try and talk

to him about seeing a psychia-

trist again. And I asked her if

ste really thought Bernie was

sick and she said yes, that she

did.

(Transcript at 1654). Later through the

same witness the State elicited that

Mrs. Avcollie ". . . wouldn't mind a

confrontation with a psychiatrist

because she was perfectly sane but she

Gidn't think he was." (Transcript at

1685-86).

After the close of the evidence

the trial court charged that sanity was

an element of the offense.

The second element which the

State must prove is that at the

time of the death of Wanda

Avcollie, the person who is sup-

posed to have caused her death

was of sound mind, that is legal-

ly sane; and a person is of sound

mind and legally sane and respon-

sible for his crime and unlawful

conéuct if at the time of such

conduct he does not as a result

of mental disease or defect lack

substantial capacity either to

appreciate the wrongfulness of

his conduct or to conform his

conduct to the requirements of

the law.

This may sound a little bit

unusual to you but I will explain

it now.

The term “mental disease or

defect" includes an abnormal

condition of mind which substan-

tially affects mental or emo-

tional processes and substan-

tially impairs behavior controls.

"Behavior controls" include the

processes and capacity of a

person to regulate and control

his conduct and actions.

For a person not to be respon-

sible for his criminal action,

there must be a causal relation-

ship between the mental disease

or defect that he has at the time

of that conduct, if any is found

in the criminal conduct, so that

it can be found that were it not

for the mental disease or defect

that conduct would not have taken

place.

Now, although it is true that the

burden of proving an accused is

of sound mind is upon the state,

it is also true that because most

men are of sound mind, the law

presumes that an accused was of

sound mind at the time the inci-

dent on which the charge is based

unless there is some credible

evidence tending to prove the

contrary has been introduced. In

this case, as I recall the evi-

dence, no such evidence of

unsound mind has been introduced.

As I said earlier, your recollec-

tion of the evidence controls.

So that the law presumes every

person accused of a crime is of

sound mind at the time the crime

occurs.

(Transcript of July 18, 1977 at 34-35)

The state's introduction of evidence

that Mr. Avcillie was not sane and the

trial court's subsequent instruction

that sanity must be proven beyond a

reasonable doubt clearly made sanity an

element to be decided by the jury.

The state during its case in

chief in a criminal trial may rely upon

the presumption of sanity, but, as soon

as evidence indicating insanity comes

into the case this presumption of sanity

disappears and the state must thereupon

undertake the burden of proving the

Gefendant sane, State vv. Davis, 158

Conn. 341, 260 A.2d 587 #(1969).

Removal of the presumption of sanity is

not the only function of evidence of

insanity; it also constitutes affirma-

tive evidence for the consideration of

the jury on the element of sanity. The

evidence then undergoes evaluation by

both the trial judge and the jury; the

judge considers to remove the presump-

tion of sanity and the jury must evalu-

ate it on the “element” of sanity. But

if sanity is an element and the only

evidence on that offered by the state

element indicates insanity, how then can

the state be said to have sustained its

burden of proof on sanity when it has

introduced no evidence whatsoever of

sanity?

Inasmuch as defendant's mental

state became an element of the offense

via the state's evidence and the court's

instructions thereon and because there

was no evidence of sanity introduced by

the state to rebut its own evidence of

insanity, there was insufficient evi-

dence on that element of the offense,

and a judgment of acquittal should have

entered. Therefore petitioner's convic-

tion is in violation of this Court's

decision in In re Winshiv, 297 gus. 358

(1970) and a writ of certiorari should

issue to the Connecticu+ Supreme Court.

CONCLUSION

| Petitioner's conviction cannct be

upheld in light of the constitutional

violations which produced it. Coleman

v. Alabama, Sandstrom +. Montana, and

In ce Winshio, demonstrate the constitu-

tional deprivations involved in Mr.

Avcollie's trial. Therefore, a writ of

certiorari should issue to the

Connecticut Supreme Court revising peti-

tioner's conviction.

RESPECTFULLY SUBMITTED

THE PETITIONER

By:

Bieter."9.¢.

Chapel Street

Bridgeport, Connecticut 06604

(203) 336-4421

CERTIFICATION

The undersigned, a member of the

Bar of this Court, hereby certifies that

on the day of March, 1983 he

placed in a United States Post Office

mail box, first class postage prepaid,

three copies of the foregoing Petition

for Writ of Certiorari and Appendix to

Petition for Writ of Certiorari to:

Francis M. McDonald, Jr.

State's Attorney for the Judicial

District of Waterbury, Connecticut

300 Grand St.

Waterbury, Connecticut

et a,

COHN D. JESSER_)

Motion to Dismiss Indictment

The accused in the above-captioned case respectfully

moves that the indictment presently pending against him

be dismissed for the following reasons:

1. The indictment for murder is defective because the

Connecticut General Statutes, Section 53a-54a imposes

upon the accused an affirmative defense contrary to his

privilege against self-incrimination and due process of law,

guaranteed by the 5th and 14th Amendments to the United

States Constitution and Article 1, Sec. 9 of the Connecticut

Constitution.

2. The indictment is invalid because it was procured by

the State’s Attorney for the Judicial District of Waterbury

who holds and performs the duties of his office in a manner

which violates the separation of powers doctrine of Article

2 of the Connecticut Constitution and of the United States

Constitution.

3. The indictment is invalid because the defendant was

denied the opportunity to be present in the Grand Jury

room during the taking of testimony, said denial having

been at the request of the State’s Attorney for the Judicial

District of Waterbury, and said denial being an abuse of

the discretion of the said State’s Attorney in the perform-

ance of the duties of his office.

4. The indictment for murder is invalid because the

defendant was not afforded the opportunity to be present

in the Grand Jury room during the taking of testimony,

said denial of his right to be present violating the defen-

dant’s right to due process of law under the 5th and 14th

Amendments to the United States Constitution and Article

1, Sec. 9 of the Connecticut Constitution.

Motion to Dismiss Indictment

5. The indictment for murder is defective because the

defendant was not afforded the opportunity to be present

in the Grand Jury room during the taking of testimony,

said denial of the opportunity to be present denying to

the defendant equal protection of the laws guaranteed to

him by the 14th Amendment to the United States Consti-

tution.

6. The indictment is invalid because it was returned

by a Grand Jury selected in an unconstitutional manner,

thereby denying to the defendant due process of law under

the 5th and 14th Amendments to the United States Con-

stitution and Article 1, Sec. 9 of the Connecticut Constitu-

tion, and also denying the defendant the equal protection

of the laws under the 14th Amendment to the United States

Constitution.

7. The indictment is invalid because the Grand Jury was

tainted by ex-parte communications, thereby denying to

the defendant due process of law under the 5th and 14th

Amendments to the United States Constitution and Article

1, Sec. 9 of the Connecticut Constitution; and also denying

the defendant the equal protection of the laws under the

14th Amendment to the United States Constitution.

8. The indictment for murder is defective because it was

returned by a Grand Jury which did not have, in accordance

with usual Connecticut practice, a member of the bar as

one of its members, or any other safeguard to prevent con-

sideration by the Grand Jury of improper evidence, there-

by denying to the accused due process of law under the 5th

and 14th Amendments to the United States Constitution

and Article 1, Sec. 9 of the Connecticut Constitution; and

Motion to Dismiss Indictment

also denying the defendant the equal protection of the

laws under the 14th Amendment to the United States Con-

stitution.

9. The indictment for murder is defective because the

charge to the Grand Jury contains an incomplete and in-

accurate statement of the elements of the crime of murder

pursuant to the Connecticut General Statutes, Section

58a-54a. The charge to the Grand Jury at page 10,

et seq. fails to charge that extreme emotional disturbance

for which there was a reasonable explanation or excuse is

a factor to be considered in determining whether a homicide

is a murder. The accused is denied due process of law

under the 5th and 14th Amendments to the United States

Constitution and under Article 1, See. 9 of the Connecticut

Constitution, because the element of extreme emotional

disturbance is made an affirmative defense, and the defen-

dant is dnied the equal protection of the laws in violation

of the 14th Amendment to the United States Constitution,

and is contrary to the presumption of the innocence of the

accused which is fundamental to our system of criminal

justice.

10. The indictment for murder is defective because the

charge to the Grand Jury at page 12 requires that the

Grand Jurors take into consideration “what was allegedly

said, if anything, by the person who is charged”, and does

not also instruct the Grand Jurors to consider what was

said by or what conduct was performed by the decedent

or others at the time of the homicide referred to.

11. The indictment for murder is defective because the

charge to the Grand Jury at pp. 7-8, 16, instrnets the Grand

Jurors not to consider hearsay or other inadmissible evi-

Motion to Dismiss Indictment

dence, but no adequate definitions or standards for iden-

tifying hearsay or other inadmissible evidence was given

in the charge so that this Grand Jury, on which there was

no member of the bar in contravention of the usual Con-

necticut practice, had no means of determining the pro-

priety of the evidence before it, thereby denying to the

defendant due process of law under the 5th and 14th

Amendments to the United States Constitution and Article

1, Sec. 9 of the Connecticut Constitution, and also denying

the defendant the equal protection of the laws under the

14th Amendment to the United States Constitution.

Service of the foregoing certified to: State’s Attorney,

Judicial District of Waterbury, 300 Grand Street, Water-

bury, Connecticut.

DEFENDANT

Bernarp L. AvcoLiie

By Gary I. Cohen,

His Attorney

Filed May 12, 1976

Memorandum on Motion to Dismiss Indictment

The defendant has moved to dismiss the Grand Jury

indictment for the crime of murder on eleven specific

grounds: 1.) Seccion 53a-54a imposes upon the defen-

dant the burden of the affirmative defense in violation of

the 5th and 14th Amendments of the Federal Constitution

and Article 1, §9 of the State Constitution; 2.) the pro-

curement by the State’s Attorney of the indictment vio-

lates the separation of powers doctrine in violation of the

Federal and State Constitutions; 3.) that he was not per-

mitted to attend the Grand Jury proceedings in abuse of

the discretion of the State’s Attorney; 4.) the denial of

the defendant’s presence at the Grand Jury proceedings

violates his right to due process under the 5th and 14th

Amendments to the Federal Constitution and Article 1, §9

of the State Constitution; 5.) the denial of the defendant’s

presence at the Grand Jury proceedings violates his right

to equal protection of the law as guaranteed by the 14th

Amendment of the Federal Constitution; 6.) the Grand

Jury was selected in violation of the 5th and 14th Amend-

ments of the Federal Constitution and Article 1, §9 of the

State Constitution by denying him due process and equal

protection under the 14th Amendment; 7.) the Grand Jury

was “tainted” by ex parte communication in violation of

the 5th and 14th Amendments to the Federal Constitution

and Article 1, §9 of the State Constitution; 8.) the Grand

Jury did not have, in accordance with the usual Connect-

icut practice, an attorney as one of its members, in viola-

tion of the 5th and 14th Amendments of the Federal Con-

stitution and Article 1, §9 of the State Constitution; 9.)

the charge to the Grand Jury was defective for failure to

explain that extreme emotional disturbance for which there

was a reasonable explanation or excuse is a factor in de-

termining whether a homicide is a murder and extreme

Memorandum on Motion to Dismiss Indictment

emotional disturbance is an affirmative defense which vio-

lates the 14th Amendment to the Federal Constitution;

10.) the charge states that the Grand Jurors take into

consideration “what was allegedly said, if anything, by the

person who is charged”, and does not also instruct them

to consider what was said by or what conduct was per-

formed by the decedent or others; 11.) that the charge

contains an instruction against hearsay and other inad-

missible evidence but no standards or definitions of hear-

say were given and without the usual attorney as a mem-

ber, no means of determining the propriety of the evidence

was made available in violation of the defendant’s consti-

tutional rights.

Grounds one and two, after a lengthy hearing at which

arguments and briefs were considered, were denied orally

by the court on the basis of the existing law. The defen-

dant in his brief has considered some of the remaining

nine grounds together and some separately. Grounds 3, 4

and 5 were argued under a single heading in the defen-

dant’s brief and the thrust of his arguments is that there

is a distinction between a constitutional Grand Jury and

an investigative Grand Jury and that in the latter the

presence of the defendant is not required, while in the

former where the function is to accuse one person of a

crime, his presence is required. It is conceded that the

defendant was not given notice of the convening of the

Grand Jury and was not present. The defendant states in

his brief: “Although the court’s charge to the Grand Jury

in Lung’s case establishes the right of the accused to be

present in the Grand Jury room during the taking of testi-

mony subsequent cases appear to retreat from that posi-

tion” and cites as authority for the retreat State v. Wol-

cott, 21 Conn, 271, 279:

Memorandum on Motion to Dismiss Indictment

It is claimed now, that every one accused of crime of

which a grand-jury takes cognizance, has a constitu-

tional right to be present with the grand-jury, during

their investigation. The bill of rights in our constitu-

tion declares, that ‘in all criminal prosecutions, the

accused shall have a right to be heard by himself and

by counsel, to demand the nature and cause of the

accusation, to be confronted by the witnesses against

him, and to have compulsory process to obtain wit-

nesses in his favour,’ &x. Stat. 28 §9. This provision

has never beer. understood to apply to grand-jury en-

quiries; on the contrary, the rule in Connecticut, so

far back at least as the time of Peter Lung’s case, in

1815, has been in conflict with this claim of the prison-

ers. Then the court adopted and published a rule, in

the form of a charge to the grand-jury by which coun-

sel were not permitted to be present before them, nor

any witnesses on the part of the accused; and this has

been followed ever since; shewing conclusively, that

the privilege thus conferred by the constitution, has

been considered as extending only to trials before petit

juries. Nor have we any statute conferring the right

now claimed.

Grand juries have a right to investigate offences, and

present bills of indictment against persons at large,

as well as those in custody or on bail. They have a

right to originate charges against offenders, without

fore-warning them of their proceedings against them.

State v. Hamlin, 47 Conn. 104, 105:

The first question raised by the assignment of errors

is, whether the omission of the grand jury to cause

the defendant Davis to come before them while the

Memorandum on Motion to Dismiss Indictment

witnesses produced by the State against him were

under examination, vitiated the indictment as against

him. It was contended upon the argument in behalf

of that defendant that under the rule adopted by the

judges of the Supreme Court of Errors in Lung’s

Case, 1, Conn., 482, he had the right to be present

before the grand jury while the witnesses produced

by the State were under examination by that body,

and to put to those witnesses any proper questions.

But the rule referred to was intended to confer no

such right, It is directory merely. Its purpose was

to secure uniformity in the proceedings of grand jur-

ies throughout the state so far as it might be done

without imposing limitations or restrictions upon the

discretionary powers of the court.

Before the adoption of the rule it had been the prac-

tice of the court to grant to persons accused of capital

crimes, if in custody of the sheriff of the county in

which the crimes were committed, the privilege of

going before the grand jury while their cases were

under investigation and interrogating the witnesses

produced by the State against them. But it always

rested in the discretion of the court to grant the

privilege or to deny it; and the rule in Lung’s case

was not intended to interfere with the exercise of

that discretion. The grand jury had, therefore, no

authority, unless directed by the court, to cause the

defendant Davis to come before them. The plea in

abatement contains no allegation that such a direc-

tion was given, and in the absence of such an allega-

tion, it must be presumed that no such direction was

given. There was no irregularity therefore in the

proceedings of the grand jury by reason of their omis-

Memorandum on Motion to Dismiss Indictment

sion to call the defendant Davis before them, and

consequently there is no infirmity in the indictment

arising out of that omission.

See State v. Hayes, 6 Conn. Supp. 215, 223; State v. Men-

illo, 159 Conn. 264, 278; State v. Reinosa, 29 Conn. Supp.

117, 119.

The sixth ground is that the members of the Grand

Jury were selected by the High Sheriff of New Haven

County in an unconstitutional manner. The facts are that

the Grand Jury personnel were selected on twenty-four

hours notice over the telephone and all were agreeable

to serving when requested. (The defendant terms them

volunteers.) The High Sheriff used as a list for tele-

phoning the members the lists in his possession of previ-

ous jurors who had served in the past and he called fifty

to sixty prospective jurors from those lists until he had

secured twenty. The law is clear in this State that a

claim of discrimination in the selection of Grand Jurors

must be based on the systematic exclusion of an identifi-

able class. He does not claim that the selection process

failed to obtain or to guarantee an impartial Grand Jury

drawn from a cross-section of the community and that

there was a systematic and intentional exclusion of cer-

tain electors of the county, rather, he claims that the

High Sheriff did not select the names from the computer-

ized list as has been done for the last several years,

There is no constitutional requirement that members

of a grand jury be selected in any particular manner.

The constitutional guarantee merely forbids any in-

tentional discrimination against race or class. Brown

v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469;

Akins vy. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed.

10a

Memorandum on Motion to Dismiss Indictment

1692. In the Brown case the Supreme Court stated

(p. 474): ‘Our duty to protect the federal constitu-

tional rights of all does not mean we must or should

impose on our states our conception of the proper

source of jury lists, so long as the source reasonably

reflects a cross-section of the population suitable in

character and intelligence for that civie duty.” Al-

though there can be no intentional discrimination in

the selection of jurors, this does not mean that there

must be a member of every class or race on the jury.

Note, 82 L. Ed. 1053, 1061. ‘Fairness in selection has

never been held to require proportional representa-

tion.’ State v. Davies, 146 Conn. 137, 143, 148 A.2d

251; Akins v. Texas, supra, 403; 38 Am.Jur, 2d, Grand

Jury, §14.

State v. Cobbs, 164 Conn, at 409.

This court has recently reviewed the standards for

grand jury selection. State v. Cobbs, 164 Conn, 402,

324 A.2d 234. To reiterate, there is no constitutional

requirement that members of a grand jury be chosen

in any particular manner. The common-law selection

method followed by the sheriff was not inherently

unconstitutional. Grand jurors need not be picked at

random in order to comply with constitutional require-

ments forbidding intentional discrimination against

race or class, State v. Cobbs, supra. The constitution

demands only that the system employed by the state

to select grand jurors produce an array from which

a cognizable group or class of citizens has not been

systematically excluded. United States ex rel. Chest-

nut v. Criminal Court, 442 F.2d 611 (2d Cire.) ; United

States v. Butera, 420 F.2d 564 (1st Cir.); State v.

Cobbs, supra 4.

lla

Memorandum on Motion to Dismiss Indictment

State v. Villafane, 164 Conn. 644. The High Sheriff's

method of selection of the Grand Jurors does not violate

the standards set forth in Cobbs, supra and Villafane,

supra. His procedure for selection does not indicate any

systematic and intentional exclusion of certain electors

or a group of certain electors or an identifiable class.

To the claim that “members of the Grand Jury were all

volunteers of similar background, experience, age and pro-

fessional experience” is the answer that even were this

true it does not show any systematic and intentional ex-

clusion of certain electors or a group of certain electors

or an identifiable class.

The defendant next claims that the indictment is in-

valid “because the Grand Jury was tainted by ex parte

communications”. What is meant by ex parte communi-

cations is hard to determine and the court is at a loss

to understand what is meant. The defendant subpoenaed

for a hearing the eighteen members of the Grand Jury.

However, the court quashed the subpoenas on the ground

that requiring them to testify would be an invasion of the

secrecy of the Grand Jury, and undue harassment of citi-

zens performing a duty when called upon by the judicial

system.

The 8th and 11th grounds of the motion are that no

member of the bar was selected to act as a Grand Juror

and as a consequence there is a probability of hearsay

evidence being accepted. Neither the federal nor state in-

stitutions nor the Connecticut Statutes nor the Practice

Book requires that an attorney be a member of each Grand

Jury selected. In fact, there is no reference to the subject

in any of the authorities aforementioned. While the judge

in his charge instructed the Jury not to accept hearsay

evidence, the consideration of, and the acceptance of such

12a

Memorandum on Motion to Dismiss Indictment

evidence will not invalidate the indictment. State v. Men-

illo, 159 Conn. 264, 274. “There are also certain errors

which the defendant claims were made in the charge to

the grand jury. We know of no instance where, in the

absence of some clear violation of a defendant’s consti-

tutional rights, a successful challenge to the validity of a

grand jury charge has been pursued, and the defendant

has cited no authority in support of his present conten-

tion.” State v. Vennard, Conn. 159, 385, 390. The defen-

dant herein has cited no authority directly bearing on this

issue. “It has been the law of this state for many years

that an indictment will not be quashed because inadmis-

sible evidence was presented to the grand jury.” State v.

Wolcott, 21 Conn. 272, 280; State v. Fasset, 16 Conn. 457,

471. “In Costello v. United States, 350 U.S. 359, . . . an in-

dictment based entirely on hearsay was held not to violate”

(the fifth amendment requiring indictment for felonies).

State v. Stallings, 154 Conn. 272, 279.

It is, of course, desirable to elicit evidence which would

be admissible in a trial court. No claim is made, how-

ever, that evidence of that sort was not elicited in this

case. The complaint is only that some undisclosed

quantum of inadmissible evidence was also heard.

The grand jury, here and in England, has, for hun-

dreds of years, convened as a body of laymen, free

from technical rules and acting in secret. Their pro-

ceedings “are both ‘ex parte’ and interlocutory; more-

over, the grand jury only seeks for a ‘probable cause’;

hence, on all principles, the jury-trial rules of Evidence

should not apply. Moreover, in point of policy, no rules

should hamper their inquiries, nor need a presentment

amounting only to probable cause be based on a system

13a

Memorandum on Motion to Dismiss Indictment

of rigid sifting of evidence. 1 Wigmore, Evidence

(3d Ed.) §4, p. 21.

The 9th ground is that the charge failed to include in-

struction on extreme emotional disturbance for which there

was a reasonable explanation or excuse. A Grand Jury

has been described as an ex parte proceeding in which

the state is required to show probable cause that the de-

fendant committed the crime so that a trial may be had.

Proof beyond a reasonable doubt is not required and there-

fore any affirmative defense is not required to be disproved

by the state in such a proceeding, and if such evidence is

not required, an instruction by the court is not required.

Essentially the defendant’s claim on this issue is that

§53a-54a is unconstitutional in that it puts the burden

of proving the affirmative defense of acting under extreme

emotional disturbance on the defendant. It is difficult to

understand how the defendant can complain of a failure

to give a charge on the portion of the murder statute

which he claims makes it unconstitutional. The claim by

the defendant is made on the basis of Mullaney v. Wilbur,

95 S. Ct. 1881 (1975) and In Re Winship, 397 U.S. 358.

The only decision on the point in Connecticut is State v.

Anonymous, 37 C.L.J. No. 50 (6/1/76) p. 8 (Saden, J.)

in which it was held that the word “affirmative” preced-

ing “defense” was nullified and the statute continues with-

out that word in it. This court intends to follow State

vy. Muolo, 119 Conn. 323, 325, holding that: “It is incum-

bent upon any court, in the consideration of an attack

upon the constitutionality of a legislative act, to approach

the question with great caution, examine it with infinite

care, make every presumption and intendment in its favor,

and sustain the act unless its invalidity is clear.” That

l4a

Memorandum on Motion to Dismiss Indictment

case clearly states it is better for the trial court to leave

the decision to the higher court to which the matter may

be brought by appeal or other available procedures. It is

the defendant’s claim that the instruction did not charge

all the elements of the crime of murder in that it failed

to charge affirmative defenses. The court did charge on

the elements of murder and by not charging on affirmative

defenses or other defenses it did not fail to give adequate

instruction. The court charged on what elements consti-

tute the crime for probable cause—it was not necessary

to charge on what the state must prove on a trial of the

ease, beyond a reasonble doubt.

Ground 10 sets forth that the court charged that the

jury could receive evidence of anything said by the per-

son who is charged, but did not instruct that the defen-

dant’s actions or other person’s actions could be consid-

ered, The charge given was correct, admissions or con-

fessions of the person charged are admissible evidence as

an exception to the hearsay rule. It would be unnecessary

to instruct the jurors regarding actions of the person

charged since evidence of his actions or other’s actions

would be admissible so long as they were pertinent mate-

rial and relevant to the elements of the crime of murder

as set forth in the instruction. Such a procedure consti-

tutes the normal proof of any issue.

In his brief the defendant raises the issue that under

the Grand Jury practice the defendant is denied any op-

portunity to have a judicial or magesterial determination

of probable cause as is done in the case of applications

and issuance of bench warrants for crimes punishable by

sentences of less than life imprisonment. The short answer

to this argument is that the Grand Jury procedure is a

part of the judicial system. In the main the cases which

l5da

Memorandum on Motion to Dismiss Indictment

the defendant cites from other jurisdictions are reasoned

on the ground of adversary proceedings. However, the

procedure which he argues for, as it is practiced in Con-

necticut, is not an adversarial proceeding but consists of

a determination of probable cause contained in an eviden-

tiary affidavit presented by the state.

For the reasons stated the Motion to Dismiss the Indict-

ment is denied.

I. Levine, J.

Filed July 27, 1976

16a

Motion to Set Aside Entry of Verdict, Motion for

Acquittal and Motion in Arrest of Judgment

Pursuant to §§ 871, 896 et seq. and 905 of the Connecticut

Practice Book; Article 1, § 8 of the Connecticut Constitu-

tion and the Fifth, Sixth and Fourteenth Amendments to

the United States Constitution, the Defendant, Bernard L.

Avecollie, moves that this Court vacate its entry of a judg-

ment of guilty and enter a judgment of acquittal for the

following reasons:

1, The charge to the jury at the trial of Mr. Aveollie (a

copy of which is attached hereto and made a part hereof

as Defendant’s Exhibit A) instructed the jury in pertinent

part that:

..+ [I]ntent is a mental process. A person’s intention

may be inferred from his conduct. Every person is

presumed to intend the natural and necessary conse-

quences of his acts.

Jury Charge of July 18, 1977 at papge 36 (annexed hereto

as Exhibit A) (Emphasis added),

Instructions of this type were held to be unconstitutional

by the United States Supreme Court on June 18, 1979 in

Sandstrom v. Montana, —— U.S. ——, 61 L.Ed.2d 39

(1979) ; accord State v. Harrison, 41 Conn. Law J. No. 9 at

page 3 (August 28, 1979) ; see also State v. Moye, 40 Conn.

Law J. No. 46 at page 1 (May 15, 1979), vacated by the

United States Supreme Court sub nom Moye v. Connecticut

(No. 79-274) —— U.S. ——, 62 L.Ed.2d 129 and remanded

for reconsideration in light of Sandstrom v. Montana, supra.

In Sandstrom v. Montana, the Supreme Court unan-

imously held that “the law presumes that a person intends

the ordinary consequences of his voluntary acts” violated

17a

Motion to Set Aside Entry of Verdict, Motion for

Acquittal and Motion in Arrest of Judgment

the Fourteenth Amendment’s requirement that the State

prove every element of a criminal offense beyond a reason-

able doubt. The Court held that the instruction could be

interpreted in two different ways both of which it found

to be unconstitutional, A reasonable jury could have found

that the presumption was conclusive; that is, a direction

from the trial court to find the homicide intentional once it

found that the defendant played a part in the victim’s

death. Alternatively, the jury could have interpreted the

instruction as a direction to find intent upon proof of the

defendant’s voluntary actions (and their “ordinary” con-

sequences), unless the defendant proved the contrary, there-

by shifting the burden to the defendant of persuading the

jury on the element of intent.

The Sandstrom Court’s reasoning regarding the conclu-

‘sive presumption interpretation was not without precedent.

In Morissette v. United States, 342 U.S, 246 (1952), the

Court condemned an instruction that intent in the theft of

government property could be presumed by the defendant’s

own act. The Court held that where the “intent of the ac-

cused” is an ingredient of the crime, it is a jury issue.

“Tt follows that the trial court may not withdraw or pre-

judge the issue by instruction that the law raises a

presumption of intent from an act. It often is tempt-

ing to cast in terms of a ‘presumption’ a conclusion

which a court thinks probable from given facts... .

[But] [w]e think presumption intent has no place in

this case. A conclusive presumption which testimony

could not overthrow would effectively eliminate intent

as an ingredient of the offense, A presumption which

would permit but not require the jury to assume intent

from an isolated fact would prejudge a conclusion

18a

Motion to Set Aside Entry of Verdict, Motion for

Acquittal and Motion in Arrest of Judgment

which the jury should reach of its own volition. A

presumption which would permit the jury to make an

assumption which all the evidence considered together

does not logically establish would give to a proven

fact an artificial and fictional effect. In either case,

this presumption would conflict with the overriding

presumption of innocence with which the law endows

the accused and which extends to every element of the

crime.”

342 U.S. at 274, 275.

The Court also noted that the Morissette holding had

been reaffirmed in United States v. United States Gypsum,

438 U.S. 422 (1978) where an anti-trust price-fixing instruc-

tion had been given that stated:

“The law presumes that a person intends the necessary

and natural consequences of his acts. Therefore, if

the effect of the exchanges of pricing information was

to raise, fix, maintain, and stabilize prices, then the

parties to them are presumed, as a matter of law, to

have iutended that result.”

Id. at 430.

The Court determined that intent was an element of the

offense charged and therefore held that:

“fA] defendant’s state of mind or intent is an element

of a criminal antitrust offense which . .. cannot be

taken from the trier of fact through reliance on a legal

presumption of wrongful intent from proof of effect

on prices, Cf. Morisette v. United States... .”

Id, at 435,

19a

Motion to Set Aside "ntry of Verdict, Motion for

Acquittal and Motion in Arrest of Judgment

Based upon Morisette and United States Gypsum, the

Sandstrom Court felt that the “conclusive presumption”

interpretation conflicted with the defendant’s presumption

of innocence which extends to every element of the crime

charged and resulted in a conviction for intentional murder

based merely upon the jury’s finding that the defendant

caused the victim’s death without evidence sufficient to find

intentional causation.

The Aveollie jury charge is similar in language and im-

bued with the same vices. The trial court’s charge on the

element of intent charged as follows:

The third element which the state must prove is that

the person causing the death of the person must have

done so with the intent to cause the death, In other

words, the state must prove beyond a reasonabe doubt

that the accused did strangle Wanda Aveollie, with

intent to cause her death.

Now, intent is a mental process. A person’s intention

may be inferred from his conduct. Every person is

presumed to intend the natural and necessary conse-

quences of his acts. It is often impossible and not

necessary to prove criminal intent by direct evidence.

Ordinarily, intent can be proved only by cireumstan-

tial evidence, as I have explained that term to you.

What a person’s purpose or intention has been is

necessarily very largely a matter of inference, A per-

son may take the stand and testify directly as to what

his or her purpose or intention was, and that testimony

you may believe or not, according to whether or not

it warrants belief, But no witness can be expected to

come here and testify that he looked into another per-

son’s mind and saw therein a certain purpose or in-

20a

Motion to Set Aside Entry of Verdict, Motion for

Acquittal and Motion in Arrest of Judgment

tention, The only way in which a jury can determine

what a person’s purpose or intention was at a given

time, aside from the person’s own testimony, is by

determining what that person’s conduct was ana what

the circumstances were surrounding that conduct, and

from those infer what his purpose of intention was.

To draw such an inference is not only the privilege

but it is also the duty of you, the jury, provided, of

course, the inference drawn is a reasonable one, In

this case, therefore, it will be part of your duty to

draw all reasonable inferences from the conduct of the

accused in the light of the surrounding circumstances

as to what purpose or intention was in his mind at

various times during the evening when the death of

the victim occurred,

In order for the accused to be found guilty of the

charge of murder, you must find beyond a reasonable

doubt that he had an intent to cause the death of

Wanda Aveollie. If you do not find beyond a reason-

able doubt that the accused had that intent, then he is

not guilty of the murder of Wanda Avcollie.

Exhibit A at 35-37.

The trial court’s instruction on intent violated Sand-

strom. The critical passage begins by explaining that “in-

tent is a mental process”, It then goes on to state that “[a]

person’s intention may be inferred from his conduct. Every

person is presumed to intend the natural and necessary

consequences by his acts”, id. at 36. Nowhere was the jury

instructed on the effect of a presumption or for that matter

on the effect of an inference, They were not told that they

had the option of inferring or presuming intent, To com-

2la

Motion to Set Aside Entry of Verdict, Motion for

Acquittal and Motion in Arrest of Judgment

pound the effect of this instruction, they were then in-

structed that “[t]o draw such inference is not only the

privilege but it is also the duty of you the jury, provided,

of course, the inference drawn is a reasonable one”, The

court then emphasized this point by further instructing

that “[i]n this case, therefore, it will be part of your duty

to draw all reasonable inferences from the conduct of the

accused in the light of the surrounding circumstances as

to what purpose or intention was in his mind at various

times during the evening when the death of the victim

occurred”, id. at 37.

It should also be noted that just prior to the charge on

intent, the trial court had charged the jury that “. .. the

law presumes every person accused of a crime is of sound

mind at the time the crime occurs”, id. at 35. The issue of

insanity was never raised by the defense or by the evidence

so that this gratuitous charge served only to compound the

court’s charge on state of mind and intent which began im-

mediately after the charge on sanity.

In addition to leaving the jury with the impression that

they should conclusively find Mr. Aveollie to have inten-

tionally caused his wife’s death, should they find that he

played a part in the cause of her death, the proscribed

instruction also possessed the potential to shift the burden

of proof from the State to the defendant to persuade the

jury hat her death was not intentionally caused, Sandstrom

at 61 L.Ed.2d 51. This would violate Mullaney v. Wilbur,

421 U.S. 684 (1975) which held that the State always bears

the burden of proving all elements of the offense, and may

never shift the burden to a defendant to disprove an ele-

ment. When the trial court charged that “[a] person may

take the stand and testify directly as to what his or her in-

22a

Motion to Set Aside Entry of Verdict, Motion for

Acquittal and Motion in Arrest of Judgment

tention was, and that testimony you may believe or not

according to whether or not it warrants belief,” it placed

that burden of proof on the defendant’s shoulders in viola-

tion of Sandstrom.

The Court’s attention is respectfully directed also to State

v. Moye, 40 Conn, Law J. No. 46 page 1 (May 15, 1979)

wherein the Connecticut Supreme Court found instructions

similar to those in Mr. Avcollie’s trial to be constitutionally

permissible. However, on October 9, 1979, the United

States Supreme Court granted Moye’s petition for a writ

of certiorari and vacated the judgment of the Connecticut

Supreme Court and remanded for further consideration in

light of Sandstrom. It is submitted that Sandstrom, State

v. Harris, supra, and Moye dictate the conclusion that the

charge to the jury in Mr. Aveollie’s case was in violation of

the Fourteenth Amendment to the United States Constitu-

tion and entitles him to a hearing on relief from this Court.

2. The verdict of guilty rendered by the jury on July 20,

1977 and entered by this Court on January 22, 1980, was

not a unanimous verdict. The jury had announced in a

written note to the trial court that they stood eleven jurors

for conviction and one juror for acquittal. The trial court

re-charged the jury with a “modified Chip Smith” charge

to which the State excepted and the defense asked for a

mistrial to be declared. Approximately three hours later

the jury foreman announced that a verdict had been

reached. The jurors were asked to stand as their numbers

were called and then their foreman announced their verdict

of guilty, whereupon the jury was asked to retire again

by the trial court. There was never an opportunity for the

jury to be polled, and following their return from the jury

room, the jury was informed that their guilty verdict had

23a

Motion to Set Aside Entry of Verdict, Motion for

Acquittal and Motion in Arrest of Judgment

been set aside and an acquittal entered; they were dis-

charged (see Transcript of July 20, 1977 annexed hereto as

Exhibit B).

The Defendant therefore respectfully moves that this

Court set aside the verdict of conviction because it was the

product of a “modified Chip Smith” charge which was im-

properly given when the trial court was made aware that

the jury stood eleven to one for conviction. The Defendant

further moves that this Court set aside the verdict of con-

viction because the jury’s verdict was not unanimous. The

last juror to assent to the verdict was compelled to assent

because of that juror’s critical need for medical prescrip-

tive medication, The juror did not have that medication

and was told that the jury would stay until midnight if

necessary to reach a unanimous verdict. Rather than be

deprived of the medication for that period of time, the

juror assented, intending to withdraw that assent at the

first opportunity in Court.

The Defendant respectfully requests a hearing on this

Motion.

Respectfully submitted,

Tue Derenvant,

Bernard AVCOLLIE,

By Joun D. Jessep

Koskorr, Koskxorr & Breper

His Attorney

Filed January 28, 1980

24a

Memorandum of Decision on Defendant’s Motion

to Set Aside Entry of Verdict, etc.

On July 20, 1977, the defendant was convicted on a charge

of murder by a jury of twelve persons. On motion by the

defendant, the court set aside the verdict of guilty and

directed an acquittal. The state took an appeal, having

received permission to do so, and the defendant moved

to dismiss the appeal. On December 20, 1977, the motion

to dismiss the appeal was denied. See State v. Avcollie,

174 Conn. 100. On July 24, 1979, the decision of the trial

court setting aside the verdict of guilty and directing an

acquittal was reversed. The Supreme Court set aside the

judgment of the trial court, reinstated the jury verdict,

and remanded the case with direction to render judgment

that the defendant is guilty and that sentence be imposed.

State v. Avcollie, Conn. (41 Conn. L.J. No. 4, pp. 1, 8).

On January 7, 1980, the United States Supreme Court

denied the defendant’s petition for writ of certiorari.

On January 28, 1980, the defendant filed a motion to

set aside entry of verdict, motion for acquittal, and mo-

tion in arrest of judgment. In this motion the defendant

claims for the first time that the charge to the jury con-

tained an instruction on the element of intent which vio-

lated the Fourteenth Amendment requirement that the

state prove every element of the crime charged beyond

a reasonable doubt. This instruction was in the following

language: “Every person is presumed to intend the nat-

ural and necessary consequences of his acts.” No excep-

tion had been taken to the charge. It is also claimed that

the verdict was the product of a “modified Chip Smith”

charge and that it was not unanimous. As to this, see

Allison v. State, 168 Conn. 541, 550 n.3.

Leaving aside several procedural difficulties, such as the

timeliness of the motion, and whether a second motion to

25a

Memorandum of Decision on Defendant’s Motion

to Set Aside Entry of Verdict, ete.

set aside a verdict on grounds different from those claimed

in the first motion may be considered, the motion is denied,

because to grant it would be to go beyond the scope of

the remand.

It is true that a defendant has a constitutional right to

a fair trial. State v. Yates, 174 Conn. 16, 19. A trial court

may set a verdict aside if it correctly concludes that er-

ror in the charge was harmful and probably brought about

a different result in the verdict. Farlow v. Andrews Cor-

poration, 154 Conn, 220, 223.

Language very similar to that complained of was held

unconstitutional in Sandstrom v. Montana, US. ,61

L. Ed.2d 39, 99 S. Ct. 2450. Under Sandstrom, careful at-

tention must be paid to the words actually spoken to the

jury, for whether a defendant has been accorded his con-

stitutional rights depends upon the way in which a reason-

able juror could have interpreted the instruction.

Language similar to that complained of was condemned

as unconstitutional in State v. Harrison, Conn. (41

Conn. L.J. No. 9, p. 3). However, Harrison clearly states

that in reviewing instructions to the jury the court looks

at the charge as a whole, and will not sever one portion

and analyze it in isolation from the rest. State v. Harrison,

supra, 4.

At least eight times during the charge the court told the

jury that the burden of establishing guilt beyond a reason-

able doubt rested upon the state. (Transcript of charge

pp. 9, 11, 15, 31, 36, 37, 40). At least four times the jury

was told that the state must prove each element of the

crime beyond a reasonable doubt. (Transcript of charge

pp. 11, 15, 31, 40). Both before and after the language

complained of, the court charged the jury that the burden

of proof always remains upon the state and never shifts

26a

Memorandum of Decision on Defendant’s Motion

to Set Aside Entry of Verdict, etc.

to the defendant. (Transcript of charge pp. 11, 40). The

jury was instructed that one of the elements which must

be proved by the state beyond a reasonable doubt is in-

tent. (Transcript of charge pp. 33, 36, 37). The language

complained of appears early in the charge on intent.

(Transcript of charge, p. 36). The court went on to ex-

plain that what a person’s purpose or intention has been

is very largely a matter of inference. (Transcript of

charge p. 36). The court also said that: “The only way

in which a jury can determine what a person’s purpose or

intention was at a given time, aside from the person’s

own testimony, is by determining what that person’s

conduct was and what the circumstances were surround-

ing that conduct, and from those infer what his purpose

or intention was.” (Transcript of charge pp. 36, 37). The

defendant testified in his own behalf in this case.

The charge clearly delineated the state’s burden of proof

on every element, including intent, so that the jury could

not have been confused. It thus cannot be concluded that

a constitutional error brought about the result.

In carrying out the direction of a mandate (of the Su-

preme Court), the Superior Court is limited to the specific

direction of the mandate as interpreted in the light of

the opinion. State Bar Assn. v. Connecticut Bank & Trust

Co., 146 Conn. 556, 561. In carrying out the mandate the

Superior Court may not render a new or different judg-

ment. Mazzotta v. Bornstein, 105 Conn, 242, 244. Com-

pliance means that the direction is not deviated from, The

trial court cannot adjudicate rights and duties not within

the scope of the remand. Nowell v. Nowell, 163 Conn. 116,

121. No judgment other than that directed or permitted

by the reviewing court may be rendered, even though it

27a

Memorandum of Decision on Defendant’s Motion

to Set Aside Entry of Verdict, etc.

may be one that the appellate court might have directed.

Nowell v. Nowell, supra. See 5 Am. Jur. 2d, Appeal and

Error, Sec. 991; Maltbie, Conn. App. Proc. Sec. 345.

Because it goes beyond the scope of the remand, the

motion is denied.

Stoughton, J.

Filed May 14, 1980

28a

Opinion of Connecticut Supreme Court

Strate or Connecticut v. Bernarp AVCOLLIE

(10089)

Speziae, C. J., Perers, Heatey, Parskey and Suea, Js.

Indicted for the crime of murder in connection with the death of

his wife, the defendant was acquitted of that crime by the

trial court which set aside the verdict of guilty returned by

the jury. The state, on the granting of permission by the

trial court, then appealed to this court, which found error

and remanded the matter to the trial court with direction to

render judgment that the defendant was guilty. On the

defendant's appeal to this court from the judgment of guilty

so rendered, held:

1. There was sufficient evidence to permit the jury to find the

defendant guilty beyond a reasonable doubt.

2. The absence of an attorney on the grand jury panel which

indicted the defendant was irrelevant to the validity of the

indictment.

8. Because the defendant failed to show that he was harmed by

the action of the trial court excluding him, on the ground

that he was an attorney, from the proceedings of the grand

jury which indicted him, that exclusion, although it consti-

tuted an abuse of that court’s discretion, did not constitute

reversible error.

4. The trial court correctly granted the state’s motion to quash

subpoenas issued by the defendant to the grand jurors who

had returned the indictment, the defendant having failed

to lay any foundation in support of his claim that the grand

jury was “selected in an unconstitutional manner.”

5. There was no merit to the defendant’s claim—raised for the

first time on appeal, but considered under the bypass rule

of State v. Evans (165 Conn, 61, 327 A.2d 576 [1973])—

that he was denied due process by the trial court’s instrue-

tion to the jurors to consider his interest in the outcome of

the case when they weighed his credibility.

6. The defendant’s challenge to the trial court’s charge on the

issue of sanity, having been made for the first time on ap-

peal, did not warrant consideration by this court.

7. The trial court’s charge on intent was not likely to have mis-

led the jury.

8. The trial court did not err in giving a supplemental “Chip

Smith” charge, the fact that that court knew that the jurors

were deadlocked eleven to one notwithstanding.

29a

Opinion of Connecticut Supreme Court

9. The trial court did not err, following this court’s remand of

the matter to it for reinstatement of the verdict and imposi-

tion of judgment, in refusing, as beyond the scope of that

remand, to hear juror testimony proffered by the defendant

in support of his claim that the original verdict was not

unanimous.

Argued October 7—decision released December 14, 1982

Indictment charging the defendant with the crime of

murder, brought to the Superior Court in the judicial

district of Waterbury and tried to the jury before Cohen,

J.; the trial court set aside the jury’s verdict of guilty

and rendered a judgment of acquittal; this court, on ap-

peal by the state, set aside the judgment, reinstated the

jury’s verdict, and remanded the case to the trial court

with direction to render judgment that the defendant was

guilty and to impose sentence; on denial of certiorari by

the United States Supreme Court, the trial court, Stough-

ton, J., rendered judgment of guilty, from which the de-

fendant appealed to this court. No error,

John D. Jessep, with whom, on the brief, was Theodore

I. Koskoff, for the appellant (defendant).

Francis M. McDonald, Jr., state’s attorney, with whom

were Paul E, Murray and Catherine J. Capuano, assistant

state’s attorneys, for the appellee (state).

Speziate, C. J. The defendant, Bernard Aveollie, was

indicted on November 21, 1975, for the murder of his wife.

After a jury trial, the jury returned a verdict of guilty

which, at the defendant’s request, was immediately set

aside by the trial judge, who rendered a judgment of ac-

quittal. The state, with permission of the trial court pur-

suant to General Statutes § 54-96, appealed the judgment

to this court. After a review of the record, we concluded

30a

Opinion of Connecticut Supreme Court

that it supported the jury’s verdict. We therefore found

error, set aside the judgment of the trial court, reinstated

the jury verdict, and remanded the case with direction to

render judgment that the defendant was guilty and to

impose sentence. State v. Avcollie, 178 Conn, 450, 471, 423

A.2d 118 (1979).' The defendant’s petition for certiorari

addressed to the United States Supreme Court was denied,

444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), and

judgment of guilty and imposition of sentence followed.

The defendant now appeals from that judgment, chal-

lenging (1) the sufficiency of the evidence; (2) the grand

jury procedure and selection; (3) the court’s charge to

the jury on the issues of (a) the defendant’s testimony;

(b) sanity; and (c) intent; (4) the giving of a supple-

mental “Chip Smith” charge; and (5) the court’s refusal

to hear juror testimony regarding the verdict.

SurFIcIeNcYy OF THE EvipENCE

The defendant claims that the evidence was insufficient

as a matter of law to support the jury’s verdict. This

court has already held otherwise. State v. Avcollie, 178

Conn. 450, 423 A.2d 118 (1979). In a belated reargument,’

1A detailed statement of facts is unnecessary to our determina-

tion of this appeal, but may be found in our prior opinions in

this case, State vy. Avcollic, 178 Conn. 450, 423 A.2d 118 (1979),

cert. denied, 444 U.S. 1015, 100 8. Ct. 667, 62 L. Ed. 2d 645 (1980),

and State v. Avcollie, 174 Conn. 100 384 A.2d 315 (1977). Facts

mee 4 to specific claims will be included in our discussion

ereof,

*The proper procedure to correct errors in an opinion of this

court is to file a motion to reargue within ten days of the date

when the decision is announced. Practice Book §3111A. The de-

— did not avail himself of this procedure at the appropriate

3la

Opinion of Connecticut Supreme Court

the defendant claims several factual inaccuracies in our

earlier opinion. We remain convinced that our decision

correctly held that there was sufficient evidence to permit

the jury to find the defendant guilty beyond a reasonable

doubt.

Tue Granp Jury

Wanda Aveollie, the defendant’s wife, was found float-

ing in the family swimming pool at approximately 2 a.m.

on October 30, 1975. At about 2:47 a.m. she was pro-

nounced dead by the medical examiner of Waterbury. On

November 21, 1975, a grand jury returned a true bill ac-

cusing the defendant of murdering Wanda Aveollie, in

violation of General Statutes § 53a-54a.

The Aveollie grand jury was unusual in two ways. First,

no attorney was included on the panel. Second, on motion

of the state’s attorney, the defendant was neither informed

of the proceedings nor allowed to be present during the

taking of evidence. The defendant claims that a grand

jury so conducted violates article I, section 8 of the Con-

necticut constitution,’ and denies an accused due process.

We find no merit in this claim.

When the grand jury in this case was sitting, grand jury

procedure was almost entirely governed by the common

law.‘ “The. state’s attorney lays before the court a bill

§“'Conn. Const. Art. I § 8] (RIGHTS OF ACCUSED IN CRIMINAL

PROSECUTIONS. . . . PRESENTMENT OF GRAND JURY, WHEN NECES-

SARY).

See. 8 . No person shall be held to answer for any crime,

punishable i by ‘death or life si ang unless on a present-

ment or an indictment of a grand jury... .”

‘Grand jury procedure was first on codified in the 1976

amendments to the Practice Book, 1963, as §§ 2012-22. These

32a

Opinion of Connecticut Supreme Court

of indictment for murder... ; the court orders a grand

jury to be summoned to consider it; the state’s attorney

submits a list of witnesses, but neither he nor any coun-

sel for the accused is in the grand jury room.... The

grand jury proceedings ... are conducted in secret. State

v. Coffee, 56 Conn. 399, 410, 16 A. 151 [1888]. While the

accused is not, as a matter of right, entitled to be present

within the grand jury room, in practice ... he is allowed

the privilege of being present in the grand jury room

during the taking of evidence by the grand jury although

not during their deliberations. State v. Fasset, 16 Conn.

457, 469 [1844].” State v. Menillo, 159 Conn. 264, 273-74,

268 A.2d 667 (1970).

Absence of an Attorney from the Panel

Although it is the usual practice in this state to include

an attorney on the grand jury panel; State v. Menillo,

supra, 274 n.1; nothing in our case law or the present

statutes requires it. The defendant does not claim other-

wise, but submits that improper, inadmissible evidence

may have been heard by the grand jury because no at-

torney was present, and that he was prejudiced thereby.

This claim seems to assume that the grand jury func-

tions like a trial before a petit jury, where evidentiary

rules are required. The defendant misconceives the pur-

amendments were adopted June 7, 1976, to take effect October 1,

1976. The current rules are essentially the same and may be

found at Practice Book, 1978, §§ 604-14.

The only provisions of the Practice Book relating to grand

juries in 1975 were §477D (“.. . the proceedings before .. .

[the] grand jury shall be secret and no attorney for the state

or for an accused shall be present... .’’) and §477E (challenge

to the array).

33a

Opinion of Connecticut Supreme Court

pose of the grand jury. “It is, of course, desirable to elicit

evidence which would be admissible in a trial court. No

claim is made, however, that evidence of that sort was not

elicited in this case. The complaint is only that some un-

disclosed quantum of inadmissible evidence was also heard.

The grand jury, here and in England, has, for hundreds of

years, convened as a body of laymen, free from technical

rules and acting in secret. Their proceedings ‘are both

“ex parte” and interlocutory; moreover, the grand jury

only seeks for a “probable cause”; hence, on all principles,

the jury-trial rules of Evidence should not apply. More-

over, in point of policy, no rules should hamper their in-

quiries, nor need a presentment amounting only to prob-

able cause be based on a system of rigid sifting of evidence.

1 Wigmore, Evidence (3d Ed.) § 4, p. 21.” State v. Stallings,

154 Conn. 272, 280, 224 A.2d 718 (1966); see also State

v. Stepney, 181 Conn. 268, 272, 435 A.2d 701 (1980), cert.

denied, 449 U.S. 1077, 101 8S. Ct. 856, 66 L. Ed. 2d 799,

(1981); State v. Fusset, 16 Conn, 457, 472-73 (1844). Be-

cause grand juries are permitted to return a true bill

based on inadmissible evidence, the absence of an attor-

ney on the Avcollie panel is irrelevant to the validity of

the indictment.

Exclusion of the Defendant from the Proceedings

When the grand jury was summoned, the state requested

that the defendant not be allowed to attend the proceed-

ings because he was an experienced criminal defense at-

torney. The court granted the request, and the defendant

was given no notice of the investigation until the indict-

ment was returned. The defendant contends that he had

a right to attend the taking of evidence, and that the

34a

Opinion of Connecticut Supreme Court

denial of this alleged right invalidates the indictment. We

disagree.

There is no doubt that from the earliest times an ac-

cused has generally been allowed to attend the grand jury

proceedings and to cross-examine witnesses. See, e.g., State

v. Menillo, supra, 274-75; State v. Wolcott, 21 Conn. 272,

279 (1851); Lung’s case, 1 Conn. 428 (1815). Although in

State v. Stallings, supra, 282, we mistakenly referred to

this practice as a “right,” the correct rule is stated in

State v. Hamlin, 47 Conn. 95, 104-105 (1879): “It was

contended upon the argument in-behalf of that defendant

that under the rule adopted by the judges of the Supreme

Court of Errors in Lung’s case, 1 Conn. [428], he had the

right to be present before the grand jury while the wit-

nesses produced by the State were under examination by

that body, and to put to those witnesses any proper ques-

tions. But the rule referred to was intended to confer

no such right. It is directory merely. Its purpose was to

secure uniformity in the proceedings of grand juries

throughout the state so far as it might be done without

imposing limitations or restrictions upon the discretionary

powers of the court. Before the adoption of the rule it

had been the practice of the court to grant to persons ac-

cused of capital crimes, if in custody of the sheriff of the

county in which the crimes were committed, the privilege

of going before the grand jury while their cases were

under investigation and interrogating the witnesses pro-

duced by the State against them. But it always rested

in the discretion of the court to grant the privilege or to

deny it; and the rule in Lung’s case was not intended to

interfere with the exercise of that discretion. The grand

jury had, therefore, no authority, unless directed by the

35a

Opinion of Connecticut Supreme Court

court, to cause the defendant Davis to come before them.”

(Emphasis added.)

More recently, in State v. Menillo, supra, we clearly in-

dicated that the practice of allowing the defendant to at-

tend the grand jur’ proceedings was grounded upon sound

judicial discretion which could be exercised to exclude

the defendant for good cause. We there stated “where

[the accused] is in custody within this state or his where-

abouts are either known to the state or readily ascertain-

able, we think that, in the absence of good cause or reason

to the contrary, he should be given the usual opportunity,

although of course he cannot be compelled, to be present

in the grand jury room during the examination of the

state’s witnesses against him.” (Emphasis added.) State

v. Menillo, supra, 278. In Menillo, the defendant was ex-

cluded because of threats made to witnesses who were

expected to testify before the grand jury. “This did not

invalidate the grand jury proceedings, although it was

a departure from the usual Connecticut practice.” Id.°

We find that the trial court abused its discretion in ex-

cluding the defendant from the grand jury proceedings

merely because he is an attorney. The defendant, how-

ever, has failed to show that he was harmed by this abuse

of discretion. Therefore, although the court’s action was

wrong, it does not constitute reversible error.

5 The judges of the Superior Court in effect confirmed that the

practice in Connecticut was to allow the defendant to attend the

taking of evidence subject to the discretion of the judge when

they promulgated § 2017 of the Practice Book, 1963 (adopted June

7, 1976, to take effect Oct. 1, 1976). This section reads in part:

“The following persons may be present while the grand jury is

taking evidence: * * * (4) The defendant, within the diseretion

of the judicial authority.” This section, as amended, is now § 609

of the 1978 Practice Book. See, generally, State v. Canady, 187

Conn. 281, 445 A.2d 895 (1982).

36a

Opinion of Connecticut Supreme Court

Quashing of Subpoenas to the Grand Jurors

On May 12, 1976, the defendant filed a motion to dismiss

the indictment, The defendant claimed, inter alia, that the

grand jury was “selected in an unconstitutional manner,”

denying the defendant due process and equal protection

under the law. The motion stated no factual basis for the

claim. At a hearing on the motion, defense counsel ques-

tioned the sheriff of New Haven County at length about

the method used to select the grand jury panel. The de-

fense also subpoenaed each of the grand jurors from the

panel to testify. The state moved to quash the subpoenas.

In opposition to the motion to quash, defense counsel as-

serted a need to question the grand jurors about their

background, race, and qualifications. He stated that he

hoped to discover thereby whether this grand jury was a

representative cross-section of the community, whether it

was a blue-ribbon grand jury, and whether there had been

intentional discrimination against some class of persons,

possibly professional people or attorneys. The court

granted the motion to quash the subpoenas.

“There is no constitutional requirement that members of

the grand jury be selected in any partciular manner. The

constitutional guarantee merely forbids any intentional

discrimination against race or class. Brown vy. Allen, 344

U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 [1953]; Akins v.

Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692 [1945].”

State v. Cobbs, 164 Conn, 402, 409, 324 A.2d 234, cert. de-

nied, 414 U.S. 861, 94S. Ct. 77, 38 L. Ed, 2d 112 (1973). To

prevail on a claim of grand jury discrimination, the chal-

lenger must demonstrate that there was an intentional and

systematic exclusion of a constitutionally cognizable group.

Rose v. Mitchell, 443 U.S. 545, 565, 99 S. Ct. 2993, 61 L. Ed.

37a

Opinion of Connecticut Supreme Court

2d 739 (1979); Castaneda v. Partida, 430 U.S. 482, 494, 97

S. Ct. 1272, 51 L. Ed. 2d 498 (1977); see, generally, State

v. Villafane, 164 Conn. 637, 644-51, 325 A.2d 251 (1973).

Random selection is not required; State vy. Villafane, supra,

644; State v Cobbs, supra; nor does every identifiable class

or race need to be represented State v. Cobbs, supra, 409.

Counsel for the defendant made no attempt to lay a

foundation for the general allegations in the defendant’s

motion to dismiss, When questioned by the court, he ad-

mitted he could be accused of being on a fishing expedition

and was unable to say what class was being discriminated

against. Defense counsel also indicated that he did not in-

tend to limit his inquiry to discrimination, but rather hoped

to pursue a general investigation into the selection of grand

jurors. Although an investigator was retained by the de-

fense, he was never called to testify. Nor was the sheriff

questioned about systematic exclusion of jurors. The de-

fense presented neither evidence nor affidavits which indi-

cated that the defendant had a viable claim.

A defendant has a right to challenge an improperly selee-

tem used was discriminatory, however, is required to

overcome the presumption that the grand jury was selected

in a proper manner.” State v. Cobbs, supra, 408-409; State

v. Davis, 158 Conn. 341, 345, 260 A.2d 587, remanded for

resentencing, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750

(1969). In addition, before a court will permit a full-scale

interrogation of the jury panel, a defendant must show, by

some independent evidence, that there are reasonable

grounds to suspect that the panel is improperly constituted,

“This does not, of course, require that the challenge

show that the panel is improperly constituted; but what it

does require is that the challenger assert facls that tend to

raise a doubt as to whether the panel may be improperly

38a

Opinion of Connecticut Supreme Court

constituted. Then follows the inquiry to see if such suspi-

cion, duly alleged, is supported by proof.

“To require a full-scale investigation of the grand jury

panel solely upon a mere assertion, not supported by so

much as an affidavit . .. that the panel was improperly

drawn, would be to open every grand jury panel, no matter

how perfectly impartial and representative, to a full-scale

investigation—or perhaps more accurately, to a fishing

expedition of broad range. Such a course would consume

enormous amounts of time and energy of our already over-

burdened trial courts, with concomitant delays in their

calendars, and would be especially injurious to the prompt

disposition of justice.” (Emphasis in original.) Rojas v.

State, 288 So. 2d 234, 237 (Fla. 1973).

The trial court correctly granted the state’s motion to

quash the subpoenas.

Ill

CHARGE TO THE JURY

The defendant’s testimony

The defendant next claims that the trial court erred in

its charge to the jury by instructing them that they should

consider the deefndant’s interest in the outcome of the case

when weighing his credibility as a witness.’ The defen-

®* The charge was as follows: “An accused person is not obliged

to take the witness stand in his own behalf. On the other hand,

he has a perfect right to do so. In weighing the testimony that he

has given you, you should apply the same principles by which the

testimony of other witnesses are tested, and that necessarily in-

volves a consideration of his interest in the case. You will con-

sider the importance to him of the outcome of this trial. An

accused person having taken the witness stand, stands before you

just like any other witness and is entitled to the same considera-

39a

Opinion of Connecticut Supreme Court

dant’s constitutional claim is that the charge denies him due

process of law. Although the defendant failed to take an

exception to this part of the charge, and raises this claim

for the first time on appeal, we have previously considered

a challenge to similar instructions under the bypass rule

of State v. Evans, 165 Conn, 61, 70, 327 A.2d 576 (1973),

and will address the claim here. See State v. Maselli, 182

Conn. 66, 74, 437 A.2d 836 (1980), cert. denied, 449 U.S.

1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981); State v.

Mastropetre, 175 Conn, 512, 524, 400 A.2d 276 (1978).’

This claim is totally without merit. We have without ex-

ception rejected challenges to language substantially the

same as that challenged here in a line of cases starting as

early as 1893. State v. Maselli, supra; State v. Mastropetre,

supra; State v, Bennett, 172 Conn. 324, 374 A.2d 247 (1977) ;

State v. Jonas, 169 Conn, 566, 363 A.2d 1378 (1975), cert.

denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed, 2d 331 (1976) ;

State v. Blyden, 165 Conn. 522, 528, 338 A.2d 484 (1973);

State v. Moynahan, 164 Conn. 560, 574, 325 A.2d 199, cert.

denied, 414 U.S. 976, 94S. Ct. 291, 38 L. Ed. 2d 219 (1973) ;

State v. Guthridge, 164 Conn, 145, 151, 318 A.2d 87 (1972),

cert. denied, 410 U.S. 988, 93 8S. Ct. 1519, 36 L. Ed. 2d 186

(1973) ; State v. Palko, 122 Conn, 529, 534, 191 A. 320, aff'd,

302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937); State v.

tion and must have his testimony measured in the same way as

any other witness, including, of course, his interest in the verdict

which you are to render.”

7 We find inapposite language to the contrary in State v. Kish,

186 Conn. 757, 769-70, 443 A.2d 1274 (1982), State v. Miller, 186

Conn, 654, 668-69, 443 A.2d 906 (1982), and State v. Kurvin, 186

Conn, 555, 570, 442 A.2d 1327 (1982), and reaffirm and adhere

to our holding as previously set forth in State v. Maselli, 182

Conn. 66, 74, 437 A.2d 836 (1980), cert. denied, 449 U.S, 1083,

101 S. Ct. 868, 66 L. Ed, 2d 807 (1981); State v. Mastropetre,

175 Conn, 512, 523-25, 400 A.2d 276 (1978).

40a

Opinion of Connecticut Supreme Court

Schleifer, 102 Conn. 708, 725, 130 A, 184 (1925); State v.

Saxon, 87 Conn. 5, 22, 86 A. 590 (1913); State v. Fiske, 63

Conn, 388, 392, 28 A. 572 (1893).

Sanity charge

The defendant also objects to the charge on the issue

of sanity, claiming that it raised an impermissible pre-

sumption as to an element of the crime. The defendant

concedes that he did not raise the issue of sanity at trial,

and also acknowledged in his motion for acquittal of Jan-

uary 28, 1980, that “[t]he issue of insanity was never

raised by the defense or by the evidence.”

Further, the defendant filed no request to charge on

the issue of sanity and took no exception at trial. We

therefore refuse to consider this claim, raised for the first

time on appeal; State v. Kurvin, 186 Conn. 555, 563-64,

442 A.2d 1327 (1982); State v. Holmquist, 173 Conn. 140,

151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct.

306, 54 L. Ed. 2d 193 (1977); State v. Green, 172 Conn.

22, 28-29, 372 A.2d 133 (1976).

Charge on intent

The defendant’s final objection to the jury charge is

that the charge on intent violates the rule of Sandstrom

v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39

(1979). Although no exception was taken to the charge,

this court has previously considered Sandstrom claims un-

der the bypass rule of State v. Evans, supra, when the

issue of intent was central to the case. See State v. Cos-

grove, 186 Conn. 476, 442 A.2d 1320 (1982); State v.

41a

Opinion of Connecticut Supreme Court

Truppi, 182 Conn. 449, 488 A.2d 712 (1980), cert. denied,

451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981).

The intent instruction used by the court here is essen-

tially the same as that approved in State v. Maselli, supra,

75n, 77n. The total charge is indistinguishable from nu-

merous charges which we have repeatedly approved fol-

lowing the Sandstrom decision; see State v. Miller, 186

Conn, 654, 667-68, 443 A.2d 906 (1982); State v. Mason,

186 Conn, 574, 582-84, 442 A.2d 1335 (1982); State v. Cos-

grove, 186 Conn. 476, 480-84, 442 A.2d 1320 (1982); State

v. Pina, 186 Conn. 261, 264, 440 A.2d 967 (1982); State

v, Stankowski, 184 Conn, (42 CLJ 46, pp. 5, 14-15) 439

A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L.

Ed, 2d 588 (1981); State v. Brokaw, 183 Conn, (42 CLJ

31, pp. 9, 11) 438 A.2d 815 (1981); State v. Truppi, supra,

453; State v. Nemeth, 182 Conn, 403, 411, 488 A.2d 120

(1980); State v. Vasquez, 182 Conn, 242, 253, 438 A.2d

424 (1980); State v. Maselli, supra, 75-76; State v. Perez,

181 Conn, 299, 311-16, 4° A.2d 334 (1980); State v. Ar-

royo, 180 Conn. 171, 173-81, 429 A.2d 457 (1980); State

v. Harrison, 178 Conn. 689, 692-99, 425 A.2d 111 (1979);

and does not include the conclusive presumption language

consistently condemned by this court. Turcio v. Manson,

186 Conn. 1, 6, 439 A.2d 437 (1982); State v. Johnson,

185 Conn. (43 CLJ 5, pp. 5, 9) 440 A.2d 858 (1981), cert.

granted, US. , 102 8, Ct. 1426, 72 L. Ed. 2d 170

(1982). Our review of the charge as a whole convinces

us that the charge here was not likely to mislead the jury.*

* The defendant asserts that the instruction used here is identi-

cal to that given in State v. Moye, 177 Conn. 487, 493, 418 A.2d

870, vacated, 444 U.S. 983, 100 8. Ct. 199, 62 L. Ed. 2d 129, on

remand, 179 Conn, 761, 409 A.2d 149 (1979), where we ultimately

ordered a new trial. He claims, therefore, that we must find error.

This claim is without merit for the reasons stated in State y.

Cosgrove, 186 Conn, 476, 482 n.3, 442 A.2d 1320 (1982),

42a

Opinion of Connecticut Supreme Court

Cure Situ CHARGE

During their deliberations, the jury sent a note to the

court stating that they were deadlocked eleven to one for

conviction and requesting guidance. The court then gave

a modified version of the “Chip Smith” charge.’ See

State v. Smith, 49 Conn. 376 (1881).

The “Chip Smith” charge has been so consistently up-

held by this court that the defendant does not challenge

it directly. See State v. Stankowski, 184 Conn, (42 CLJ

46, pp. 5, 13-14) 439 A.2d 918, cert. denied, 454 U.S, 1052,

102 8. Ct. 596, 70 L. Ed. 2d 588 (1981), and cases cited

®The court charged as follows:

“Previously in my charge I said this to you: To support a ver-

dict it must be a unanimous one. But that did not mean that

each juror should pursue his own deliberations and judgment

with no regard to the arguments and conclusions of his fellows,

Or that having reached a conclusion he should obstinately adhere

to it without a conscious effort to test its validity by other views

entertained by other jurors equally wise and justly resolved to do

their duty.

“To put it another way succinctly: Although the verdict to

which a juror agrees must, of course, be his own conclusion and

not a mere acquiescence in the conclusion of his fellows, yet in

order to bring twelve minds to a unanimous result, the jurors

should examine with candor the questions submitted to them and

with due regard and deference to the opinions of each other. In

conferring together the jury ought to pay proper respect to each

other’s opinions. The jurors ought not to doubt the conclusions

of a judgment which is not concurred in by most of those with

whom you are associated, and distrust the weight or sufficiency

of that evidence which fails to carry conviction to the minds of

your fellows.

“T am going to ask you to go back to the jury room and discuss

this case further.

“Tf you reach an impasse you can so notify the Court with the

— statement that you cannot agree or that you have reached

an ,

passe

“You may now go back,”

43a

Opinion of Connecticut Supreme Court

therein. Rather, the defendant claims that when the court

knows that the jury are deadlocked eleven to one for

conviction, and the jury know that the judge knows the

division, the “Chip Smith” charge is tantamount to a di-

rected verdict of guilty. This overlooks the fact that the

“Chip Smith” charge, while encouraging a continued search

for unanimity, also stresses that each juror’s vote must

be “his [or her] own conclusion and not a mere acquiescence

in the conclusions of his [or her] fellows... .” The lan-

guage of the charge does not direct a verdict, but en-

courages it. We agree with the Second Circuit Court of

Appeals which held, in a situation directly parallel to this

one: “The fact that the judge knew that there was a lone

dissenter does not make the charge coercive inasmuch as

the nature of the deadlock was disclosed to the Court

voluntarily and without solicitation. See Bowen vy. United

States, 153 F.2d 747 (8th Cir. 1946). To hold otherwise

would unnecessarily prohibit the use of the Allen charge[**]

in circumstances where the judge was made aware of the

numerical division of the jurors, for example, by an over-

zealous juror, although he had not made the forbidden

inquiry himself.” United States v. Meyers, 410 F.2d 693,

697 (2d Cir.), cert. denied, 396 U.S. 835, 90 S. Ct. 93, 24

L, Ed. 2d 86 (1969). See also United States v. Robinson,

560 F.2d 507, 517-18 (2d Cir. 1977), upholding the use of

the Allen charge although the judge knew of an eleven

to one deadlock and knew the identity of the dissenter.

The court did not err in giving the supplemental “Chip

Smith” charge in these cireumstances.

The Allen charge (Allen v. United States, 164 U.S, 492, 501,

17 8. Ct. 154, 41 L. Ed. 528 |[1896]) is the federal equivalent of

the “Chip Smith” charge. See State vy. Walters, 145 Conn, 60, 64,

138 A.2d 786, cert. denied, 358 U.S, 46, 79 8. Ct. 70, 3 L. Ed, 2d

45 (1958).

44a

Exciusion or Juror TrestiMony

The jury returned their verdict on July 20, 1977. In

accordance with traditional procedure, each juror was

called by name and asked to remain standing while the

verdict was delivered. The court clerk asked whether a

verdict had been reached, and the foreman replied that

it had. The clerk then stated: “Ladies and gentlemen of

the jury, look upon the accused, you that have been sworn.

What say you as to Case Number 12,468, Connecticut ver-

sus Bernard Avecollie. Is Bernard Avecollie guilty of the

crime of Murder, in violation of Section 53a-54a of the

Connecticut General Statutes, or not guilty” The fore-

man replied “He is guilty,” and no juror took exception

to the verdict. Defense counsel immediately asked that

the jury be excused, and the court excused the jury. The

court then granted the defendant’s motion for acquittal

and the jury were discharged.

As previously noted, this court set aside the judgment of

the trial court, reinstated the verdict, and remanded the

case with direction to render judgment that the defendant

was guilty and to impose sentence. After the remand, the

defendant attempted to bring to the trial court’s attention

for the first time a claim that the original jury verdict was

not unanimous. In support of this claim, the defendant

proposed to call juror Edith Cass to testify that her vote

was the result of ill health and coercion by her fellow

jurors. The trial court refused to hear this testimony, stat-

ing in its memorandum decision that it was “limited to the

specific direction of the [Supreme Court] mandate as inter-

preted in the light of the opinion. State Bar Assn. v. Con-

necticut Bank & Trust Co., 146 Conn. 556, 561 [153 A.2d

453 (1959)]. In earrying out the mandate the Superior

Court may not render a new or different judgment. Maz-

45a

Opinion of Connecticut Supreme Court

zotta v. Bornstein, 105 Conn. 242, 244 [135 A. 38 (1926)].

Compliance means that the direction is not deviated from.

The trial court cannot adjudicate rights and duties not

within the scope of the remand. Nowell v. Nowell, 163 Conn.

116, 121 [302 A.2d 260 (1972)].” The trial court was cor-

rect in not going beyond the scope of the remand.

Furthermore, the defendant’s offer of proof concerns

either the personal reasons for Mrs. Cass’ vote or the de-

liberative process itself. In Aillon v. State, 168 Conn. 541,

550, 363 A.2d 49 (1975), we announced a rule concerning

juror testimony “ ‘which excludes, as immaterial, evidence

as to the expressions and arguments of the jurors in their

deliberations and evidence as to their own motives, beliefs,

mistakes and mental operations generally, in arriving at

their verdict.’ McCormick, Evidence (2d Ed.) § 68, p. 148.”

Testimony concerning a juror’s illness or the persuasive

tactics of fellow jurors is clearly excluded under this rule,

and it would have been highly improper to allow testimony

of the sort proposed by the defendant, Aillon v. State,

supra, 550 n.3.

Finally, we note that the defendant failed to move for

the jury to be polled,’ but rather moved to excuse the jury

immediately after the verdict was announced. The decision

to poll the jury is discretionary with the court; State v.

Tucker, 181 Conn. 406, 420, 435 A.2d 986 (1980) ; however,

we are reluctant to review a claim that a verdict is not

unanimous when trial counsel, who observed the jury when

the verdict was delivered, saw no reason to request a poll

at that time.

There is no error.

In this opinion the other judges concurred,

™ Practice Book, 1963, § 2280, now Practice Book, 1978, § 869.

46a

Order on Motion for Reargument

SUPREME COURT

STATE OF CONNECTICUT

January 3, 1983

No. 10089

Strate or CONNECTICUT

Bernarp AVCOLLIE

ORDER

The defendant’s Motion for Reargument having been

presented to the court, it is hereby ordered denied.

By the Court

/s/ Donatp H. Dow1ine

Chief Clerk

Notice to:

Koskoff, Koskoff & Bieder, P.C.

Francis M. McDonald, S.A.

Clerk, Waterbury J.D.

January 4, 1983

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.