Petition — Seravalli v. Connecticut

Pitti ED

82-1650

| Office Supreme Court, US,

|

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|

f

APR y 1983

' ALEXANDER L. STEVAS,

CLERK

NO.

In The

Suprenie Court of the United States

OCTOBER TERM, 1982

JOHN SERAVALLI, JR.

JOSEPH SERAVALLI,

Petitioners,

vs

STATE OF CONNECTICUT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

J. DANIEL SAGARIN, ESQ.

Hurwitz & Sagarin, P.C.

P.O. Box 112

147 North Broad Street

Milford, CT 06460

Tel. (203) 877-6071

Counsel for Petitioners

Of Counsel:

William B. Barnes, Esq.

Hurwitz & Sagarin, P.C.

April 7, 1983

QUESTION PRESENTED

Whether The Fifth And Fourteenth Amendments Bar Refusal

To Hear A Defendant’s Double Jeopardy Claim, Based On

Insufficiency Of Evidence At A Trial Ending In A Mistrial,

Until His Conviction And Appeal Following A Second Trial.

LIST OF PARTIES

This petition is jointly presented by John Seravalli and by

Joseph Seravalli, Jr. The petition concerns State v. John Sera-

valli, Jr. and State v. Joseph Seravalli, cases consolidated at

trial and on appeal to the Connecticut Supreme Court, where

they were Docket Number 10297 and 10298. Since the appeals

presented identical issues, they were treated as one in that

court’s opinion. App. A-2, n.1. For these reasons, John

Seravalli, Jr. and Joseph Seravalli petition jointly under Sup.

Ct. R. 19.4,

TABLE OF CONTENTS

Page

SPE Ee PETRIE? oc cS ce stcceccruadeexs (i)

Ae EE iad ica's Sire Ry eae Saleem sno (ii)

PRE GI CER ETE DS icc es divdaverrekeavicdes (iii)

EE LE PAS ROPES AEE. co ccvadeusdweeescss (v)

IE ENON gs i've vk eeadsn ba vee s pee. e 5 5 2

PE ei a band wakeu rnb ar bedeneresee 2

CONSTITUTIONAL PROVISIONS.............. 2

ARSC E COP WEG 6 eke bec ics bsnc sean 3

RE AS UNS FOR GRANTING THE WRIT:

THE FIFTH AND FOURTEENTH AMEND-

MENTS BAR REFUSAL TO HEAR A DEFEN-

DANT’S DOUBLE JEOPARDY CLAIM,

BASED ON INSUFFICIENCY OF EVIDENCE

AT A TRIAL ENDING IN A MISTRIAL, UN-

TIL HIS CONVICTION AND APPEAL FOL-

LOWING A SECOND TRIAL................ 4

I. The Petitioners’ Claim That Double Jeopardy

Prohibits Their Retrial Due To Insufficiency Of

Evidence At Their First Trial Is a Paradigmatic

Appealable Order Under The Decisions Of This

SRT EAU UA Th GeME aot bce Riwesuwabccecwnis 4

Il. The Connecticut Supreme Court Destroyed The

Petitioners’ Double Jeopardy Rights By Refusing

TOPO PU POO ok uivad cb ved do wecceeces 5

CONCLUSION

APPENDIX

te Ok A Oe A a Ra oe oe ee ee ee ee ee Se

TABLE OF AUTHORITIES

Cases Page

Abney v. United States, 431 U.S. 651 (1977) ........ passim

Armstrong v. Manzo, 380 U.S. 545 (1965) .......... mae

Burks v. United States, 437 U.S. 1(1978)........... 5,7

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

NS Fink cs Si hes kWa nner Kihkaueeteny en 4,6

Douglas v. California, 372 U.S. 353 (1963) ......... 7

Green v. Massey, 437 U.S. 19 (1978) ............05. 5

Green v. Ohio, 455 U.S. 976 (1982) .........00 ee ees 7

Hudson v, Louisiana, 450 U.S. 40 (1981) ........... 5

Mathews v. Eldridge, 424 U.S. 319 (1975) .......... 7

Price v. Georgia, 398 U.S. 323 (1970) .............. 4

_Spradling v. Texas, 455 U.S. 971 (1982) ............ 7

State v. Seravaili, 189 Conn. 201, PD secon

SE th eka beuss tc ancades bsadaendnanekowss passim

Tibbs v. Florida, U.S. _____., 102 S.Ct. 2211

EE cod anvcn eNO heseseveblenadapeeResenawes 5

United States v. Di Francesco, 449 U.S. 117 (1980)... 4,5

United States v. MacDonu!d, 435 U._. 850 (1978)... .. 5

United States v. McQuilkin, 673 F.2d 681 (3d Cir.

DCCC EN awebk oak ctesdnsseethnbenewentes 6

vi

Page

United States v. United States Gypsum Co., 600 F.2d

414 (3d Cir.), cert. denied, 444 U.S. 884 (1979).... 6

Constitutional Provisions

SiC EEE OE DG TA See cows dsativedovecees 4,7

NO.

In The

Supreme Court of the United States

OCTOBER TERM, 1982

JOHN SERAVALLI, JR.

JOSEPH SERAVALLI,

Petitioners,

V.

STATE OF CONNECTICUT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

The petitioners respectfully pray that a writ of certiorari issue to

review the judgment and opinion of the Supreme Court of the

State of Connecticut entered in this proceeding.

OPINIONS BELOW

The opinion of the Connecticut Supreme Court appears in

189 Conn. 201, _. A.2d _____ (1982), and is reprinted as

Appendix A.

JURISDICTION

The decision of the Connecticut Supreme Court was rendered

on Feb. 8, 1983. This petition was filed within 60 days of that

daie. This court’s jurisdiction is invoked under 28 U.S.C.

§1257. See Harris v. Washington, 404 U.S. 55, 56 (1971).

CONSTITUTIONAL PROVISIONS

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of war or public

danger; nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be

deprived of life, liberty or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.

U.S. CONST. amend. 5.

All persons born or naturalized in the United States, and sub-

ject to the jurisdiction thereof, are citizens of the United States

and of the state wherein they reside. No state shall make or

enforce any law which shall abridge the privileges or immunities

of any citizen of the United States; nor shall any state deprive

any person of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal pro-

tection of the laws.

U.S. CONST. amend. 14.

STATEMENT OF THE CASE

This petition arises out of the Connecticut Supreme Court's

dismissal of the appeals of John Seravalli, Jr. and Joseph Sera-

valli. The Seravallis appealed to that court from denial of their

motion for acquittal on conspiracy and related charges after a

hung jury prompted the trial court to grant their motion for a

mistrial. The petitioners argued to the trial court that retrial

would violate their constitutional right against double jeopardy.

See Motion for Judgment of Acquittal, July 8, 1980 (excerpt),

App. B-1; Memorandum of Decision of Superior Court, Dor-

sey, J., Nov. 10, 1980 (excerpt), App. C-1. This argument was

made in the petitioners’ statement of issues on appeal. See App.

A-2 n.4. The Connecticut Supreme Court granted the State's

preliminary motion to dismiss all but the double jeopardy

issues. See App. A-4n.5.

The Seravallis then briefed and argued on appeal their con-

tention that where a mistrial results from a hung jury after the

state has introduced too little evidence to convict, a judgment of

acquittal must be granted since retrial would violate the consti-

tutional protection against double jeopardy. App. A-8-9. The

Connecticut Supreme Court on Feb. 8, 1983 dismissed the

appeal. The majority, Justices Parskey, Shea and Grillo and

Chief Justice Speziale, held that because petitioners’ assertion

of the right not to be tried again could not be decided without

reviewing the evidence at the first trial, the court had no appel-

late jurisdiction until defendants had been convicted and

appealed after the second trial. See App. A-11. Justice Ellen

Peters dissented, pointedly observing that the court, by refusing

to hear the petitioners’ constitutional claim, had destroyed it by

placing them twice in jeopardy. See App. A-12-13.

REASONS FOR GRANTING THE WRIT

THE FIFTH AND FOURTEENTH AMENDMENTS BAR

REFUSAL TO HEAR A DEFENDANT’S DOUBLE JEOP-

ARDY CLAIM, BASED ON INSUFFICIENCY OF EVI-

DENCE AT A TRIAL ENDING IN A MISTRIAL, UNTIL

HIS CONVICTION AND APPEAL FOLLOWING A SEC-

OND TRIAL.

I. The Petitioners’ Claim That Double Jeopardy Prohibits

Their Retrial Due To Insufficiency Of Evidence At Their

First Trial Is A Paradigmatic Appealable Order Under The

Decisions Of This Court.

This Court has repeatedly stated that the Double Jeopardy

Clause protects defendants, ‘‘ ‘not against being twice pun-

ished, but against being twice put in jeopardy...’.... The

‘twice pul in jeopardy’ language of the constitution thus relates

to a potential, i.e., the risk that an accused will be convicted of

the ‘same offense’ for which he was initially tried.’’ Price v.

Georgia, 398 U.S. 323, 326 (1970) (emphasis in original), quoted

in Abney v. United States, 431 U.S. 651, 661 (1977). The guar-

antee is against the anxiety of retrial and the risk of being twice

convicted, by chance or because the prosecution has improved

its case. Abney, 431 U.S. at 661-62; United States v. DiFran-

cesco, 449 U.S. 117, 128-31 (1980).

Abney v. United States relied on this aspect of the Double

Jeopardy Clause in holding that a pretrial order denying a

motion to dismiss on double jeopardy grounds was an immedi-

ately appealable collateral order. 431 U.S. at 657-62. Abney

applied the three part test of Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949). First, because the order was a

complete, formal, and, in the trial court, final rejection of the

defendants’ double jeopardy claims, it fully disposed of the

question at issue. 431 U.S. at 659. Second, because the defen-

dants were not arguing guilt or innocence, but rather the right

of the prosecution to subject them to another trial, the order

was coliateral, not a step towards final disposition on the merits

that would be merged in the judgment and reviewed on appeal.

431 U.S. at 600. The third and most significant test was that

“the rights conferred on a criminal accused by the Double

Jeopardy Clause would be significantly undermined if appellate

review of double jeopardy claims were postpoined until after

conviction and sentence.... It is a guarantee against twice be-

ing put to (¢rial for the same offense.’’ 431 U.S. at 600-01 (em-

phasis added and footnote omitted). Indeed, as this court later

noted in United States v. MacDonald, 435 U.S. 850, 859 (1978),

acquittal on retrial would not eliminate the defendants’ griev-

ance at being put twice in jeopardy.

The petitioners presented a paradigmatic double jeopardy

claim in their interlocutory appeal of the trial court’s refusal to

grant their motion for acquittal, presented after jury deadlock

and mistrial, based on insufficiency of the evidence. In Burks v.

United States, 437 U.S. 1 (1978), this Court held that the Dou-

ble Jeopardy Clause prohibits a second trial when a reviewing

court holds that the prosecution had insufficient evidence to

convict after the first trial. Jd. at 11; accord, Tibbs v. Florida,

__. ; U.S. —__., 102 S.Ct. 2211 (1982); Hudson v. Louisiana,

450 U.S. 40, 43 (1981); Green v. Massey, 437 U.S. 19, 24 (1978).

A finding by either the trial court or the reviewing court that the

prosecution failed after a full trial to present sufficient evidence

to convict is equivalent to a jury verdict of acquittal. Burks, 437

U.S. at 16. Such a finding absolutely prohibits retrial. United

States v. DiFrancesco, 449 U.S. at 129.

The Abney and Burks holdings, taken together, make the

trial court’s failure to grant the petitioners’ motion for acquittal

after mistrial an appealable collateral order. Under Burks the

claimed insufficiency of evidence raises a double jeopardy

claim, and under Abney such claims are appealable.

Il. The Connecticut Supreme Court Destroyed The Petitioners’

Double Jeopardy Rights By Refusing To Hear Their Appeal.

The Connecticut Supreme Court refused to hear the peti-

tioners’ double jeopardy claim on the ground tha: 2"9mination

for any purpose of the evidence at a trial in which a mistrial was

declared at the defendants’ request would be a decision on the

merits reviewable after a final judgment or retria!, not a collat-

eral order within Cohen v. Beneficial Industrial Loan Corp. See

App. A-9. The court concluded that any review of the peti-

tioners’ admittedly colorable claim under Burks, see App.

A-9-10 and n.8; App. A-12 (Peters, J., dissenting), would have

to come after conviction on their second trial. App. A-9-10.

The Connecticut Supreme Court has completely misunder-

stood Abney. A double jeopardy claims is an almost unique

paradigm of the appealable interlocutory order because it

involves a distinct collateral issue — whether the defendant may

be tried again — which must, by its own nature, be decided

before retrial. See MacDonald, 435 U.S. at 853-61. The Con-

necticut Supreme Court did not see that the nature of such a

claim is collateral. It confused the task of the reviewing court

under Burks with normal appellate review of trial error in saying

that the task of reviewing evidence is automatically considera-

tion of the merits. This view ignores the difference in scope and

purpose of the two procedures. See United States v. McQuilkin,

673 F.2d 681, 685 (3d Cir. 1982); United States v. United States

Gypsum Co., 600 F.2d 414, 416 (3d Cir.), 444 U.S. 884 (1970);

contra App. A-11, n. 9 (citing cases). The court’s insistence that

any review would have to be on the merits also led it to believe

that a mistrial, which would delay consideration of the merits

until appeal after retrial, prevented the double jeopardy appeal.

The distinction is immaterial, since the case against the peti-

tioners was the same, whether they were convicted or a mistrial

was declared due to a hung jury.

This general misunderstanding of the nature of a collateral

order led to a much larger error. The Connecticut Supreme

Court, driven by its feeling that all evidentiary claims merged

with the merits, declared that petitioners could appeal their dou-

ble jeopardy claim only after conviction on retrial. The court

ignored the fact, pointed out by Justice Peters in dissent, that it

destroyed the petitioners’ constitutional claims by refusing to

review them. App. A-12.

This result is intolerable. In the first place, it vioiates the peti-

tioners’ Fifth Amendment rights. See Green v. Ohio, 455 U.S.

976, 978 (1982) (White, J., Blackmun, J. and Powell, J., dis-

senting from denial of writ of certiorari) (Abney not limited to

federal cases); Spradling v. Texas, 455 U.S. 971, 973 (1982)

(Brennan, J. and Marshall, J., dissenting from denial of writ of

certiorari) (Abney has constitutional dimension and applies to

the states). Mathews v. Eldridge, 424 U.S. 319 (1975) noted the

‘‘core principle that statutorily created finality requirements

should it, if possible, be construed so as not to cause crucial col-

lateral claims to be lost and potentially irreparable injuries to be

suffered....’’ /d. at 331 n.11.

The decision not only violates the petitioners’ substantive

rights, but is arbitrary and irrational. Why should the peti-

tioners be put in jeopardy twice because one or more jurors rec-

ognized that there was too little evidence and refused to convict,

when if they had been convicted they could have appealed and

under Burks received complete freedom from retrial? The deci-

sion thus violated petitioners’ rights to due process and equal

protection. Arbitrary denial of appellate review violates the

Equal Protection Clause. See Douglas v. California, 372 U.S.

353, 357-58 (1963). The right to be heard at a meaningful time

before suffering a grievous loss is an element of due process. See

Armstrong v. Manzo, 380 U.S. 545, 552 (1965). The decision of

the Connecticut Supreme Court has arbitrarily deprived the

petitioners of their constitutional rights and must be reversed.

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue to

review the judgment and opinion of the Supreme Court of the

State of Connecticut.

Respectfully submitted,

J. DANIEL SAGARIN, ESQ.

Hurwitz & Sagarin, P.C.

P.O. Box 112

i47 N. Broad St.

Milford, CT 06460

Tel. (203) 877-6071

Of Counsel:

William B. Barnes, Esq.

Hurwitz & Sagarin, P.C.

April 7, 1983

NO.

In The

Supreme Court of the United States

OCTOBER TERM, 1982

JOHN SERAVALLI, JR.

JOSEPH SERAVALLI,

Petitioners,

v.

STATE OF CONNECTICUT,

Respondent.

APPENDIX

A-1

APPENDIX A

State of Connecticut v. John Seravalli, Jr.

State of Connecticut v. Joseph Seravalli

(10297)

(10298)

Speziale, C. J., Peters, Parskey, Shea and Grillo, Js.

(One judge dissenting)

Argued November 9, 1982 — decision released February 8, 1983

Information charging the defendants with the crimes of con-

spiracy to commit arson in the second degree, arson in the sec-

ond degree, and larceny in the first degree, brought to the Supe-

rior Court in the judicial district of New Haven and tried to the

jury before Dorsey, J.; following a mistrial, the defendants filed

a motion for judgment of acquittal, which was denied by the

court, and the defendants appealed to this court. Appeals

dismissed.

202 FEBRUARY, 1983 189 Conn 201

State v. Seravalli

J. Daniel Sagarin, with whom, on the brief, were William

Barnes and Nancy Sobocinski, for the appellants (defendants).

Carl Schuman, assistant state’s attorney, with whom, on the

brief, were Arnold Markle, state’s attorney, and Mary Galvin,

assistant state’s attorney, for the appellee (state).

A-2

Speziale, C. J. These appeals were brought following a mis-

trial granted by the trial court at the defendants’! request when

the jury before which they were tried on conspiracy to commit

arson, arson, and larceny charges2 became deadlocked. The

defendants’ appeal raises only two substantial issues3: (1) that

the evidence was insufficient to convict them on any of the

charges; and (2) that the trial court’s denial of their motion for

judgment of acquittal placed the defendants twice in jeopardy

in violation of the state and federal constitutions.4

IThe cases of State v. John Seravalli, Jr. (docket no. 10297), and State

v. Joseph Seravalli (docket no. 10298), were consolidated both for

trial and on appeal to this court. We will refer to them as a single

appeal in this opinion.

2Each defendant was charged by information with violations of (1)

conspiracy to commit arson in the second degree, General Statutes

§§ 53a-48 and 53a-112 (a) (1) (B); (2) arson in the second degree, Gen-

eral Statutes § 53a-112 (a) (1) (B); and (3) larceny in the first degree,

General Statutes § 53a-122 (a) (2).

3The defendants also presented a claim in their brief that the larceny

count should have been dismissed because the larceny statute did not

apply to the facts of this case. This issue is not properly before us, for

the reasons hereinafter set forth.

4Each defendant’s preliminary statement of issues reads as follows:

**Preliminary Statement of the Issues

**1. Did the trial court err in denying the Defendant’s Motion for

Judgment of Acquittal.

**2. Did the trial court err in concluding there was sufficient evi-

dence to find the Defendant guilty beyond a reasonable doubt on

Count One of the Information.

A-3

189 Conn 201 FEBRUARY, 1983 203

State v. Seravalli

On October 7, 1980, this court granted the state’s motion to

dismiss the appeals ‘‘except as to the defendant[s’] double jeop-

r

**3. Did the trial court err in concluding there was sufficient cvi-

dence to find the Defendant guilty beyond a reasonable doubt on

Count Two of the information.

**4. Did the trial court err in concluding that there was sufficient

evidence to find the Defendant guilty beyond a reasonable doubt on

Count Three of the Information.

**5. Does the trial court’s denial of Defendant’s Motion For Judg-

ment of Acquittal place the Defendant in jeopardy twice in violation

of his state and federal constitutional rights.”’

Issues 2, 3, and 4 clearly address only sufficiency of the evidence.

Issue 1 concerns the motion for judgment of acquittal which com-

bined two parts:

**(1) The evidence would not permit a finding of guilty beyond a

reasonable doubt on any of the charges against the Defendant.

**(2) The first trial was so lengthy and expensive that to permit a sec-

ond trial would be fundamentally unfair, unconsiderable, [sic] and

amount to the imposition of a punishment of itself.’’

The first part of the motion also concerns only the sufficiency of the

evidence, while the second part is the original basis for the defendants’

double jeopardy claim. Issue number five specifically raises the double

jeopardy claim concerning the second part of the motion.

A-4

ardy claim.’’5 Of the issues stated, only the double jeopardy

issue was immediately appealable to this court. State v. Poweli,

186 Conn. 547, 552-53, 442 A.2d 939, cert. denied sub nom

Moeller v. Connecticut, U.S.

5**No. 10297

STATE OF CONNECTICUT : SUPREME COURT

VS. : STATE OF CONNECTICUT

JOHN SERAVALLI, JR. : OCTOBER 7, 1980

ORDER

The motion of the State to dismiss the appeal of the defendant hav-

ing been heard by the Court, it is hereby

ORDERED by the Supreme Court, that said motion be and the

same is hereby GRANTED, except as to the defendant’s claim of dou-

ble jeopardy.

By the Court,

/s/ Donald H. Dowling

CHIEF CLERK”

An identical order was made in No. 10298, State of Connecticut v.

Joseph Seravalli.

204 FEBRUARY, 1983 189 Conn 201

State v. Seravalli

, 103 S. Ct. 85, L. Ed. 2d (1982); State v. Moeller, 178 Conn. 67,

420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L.

Ed. 2d 320 (1979).

The double jeopardy aspect of the defendants’ motions for

acquittal before the trial court was chat ‘‘[t}he first trial was so

lengthy and expensive that to permit a second trial would be

fundamentally unfair, unconsiderable [sic], and amount to the

imposition of a punishment of itself.’’ On appeal, following our

dismissal of the appeal on the issues concerning sufficiency of

the evidence, the defendants’ original double jeopardy claim

changed. The argument now presented by the defendants on

appeal is that because there was insufficient evidence to convict,

the double jeopardy clause bars a second trial of the defendants

even though they requested the mistrial.

We recognize that this change in the argument by the defen-

dants is an attempt to resurrect the appeal of the issues concern-

ing sufficiency of the evidence in the guise of a double jeopardy

claim; we will, nevertheless, address the appealability of the

issue now raised by the defendants rather than rely solely on our

previous ruling on the state’s motion to dismiss.

Appeals are permitted only from final judgments. State v.

Powell, supra, 550. ‘‘The finality requirement underlying our

appellate review represents a clear and firm policy against piece-

meal appeals. State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761

(1938).’’ State v. Powell, supra, 551. ‘Adherence to this rule of

finality has been particularly stringent in criminal prosecutions

because ‘the delays and disruptions attendant upon intermedi-

ate appeal,’ which the rule is designed to avoid, ‘are

A-6

189 Conn. 201 FEBRUARY, 1983 205

State v. Seravalli

especially inimical to the effective and fair administration of the

criminal law.’ DiBelli [_v. United States, 369 U.S. 121, 126, 82

S. Ct. 654, 7 L. Ed. 2d 614 (1962)].’’ Abney v. United States,

431 U.S. 651, 657, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977),

quoted in State v. Powell, supra, 551.

The appealable final judgment in a criminal case is ordinarily

the imposition of sentence; State v. Grotton, 180 Conn. 290,

293, 429 A.2d 871 (1980); but we have held that certain presen-

tence orders or actions by a trial court may be considered final

for purposes of appeal ‘‘where the otherwise interlocutory rul-

ing challenged on appeal cannot, if erroneous, later be remedied

by suppression of the evidence or reversal of the conviction after

trial.’’ State v. Grotton, supra, 293; State v. Powell, supra, 553;

see State v. Spendolini, 189 Conn. 92, A.2d (1982), and

cases cited therein.

In Abney v. United States, supra, the United States Supreme

Court permitted an appeal from the denial of a motion to dis-

miss the indictment which was based on a claim of double jeop-

ardy. The court held that denial of the motion was a ‘‘collateral

order’’ as defined in Cohen v. Beneficial Industrial Loan Cor-

poration, 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949),

and was a final decision under 28 U.S.C. § 1291, the federal

appeal statute. In Cohen, a shareholder’s derivative suit, the

district court denied the defendant’s pretrial motion to require

the plaintiffs to post a security bond. The court of appeals

reversed, and the United States Supreme Court ruled that the

appellate court had jurisdiction over the appeal, stating: ‘‘This

decision appears to fall into that small class [of cases] which

finally determine claims of rights separable from, and collateral

to, rights asserted

A-7

206 FEBRUARY, 1983 189 Conn 201

State v. Seravalli

in the action, too important to be denied review and too inde-

pendent of the cause itself to require that appellate considera--

tion be deferred until the whole case is adjudicated.’’ (Emphasis

added.) Cohen v. Beneficial Loan Corporation, supra, 546.

In Abney, the court applied the Cohen test above to the dou-

ble jeopardy claim raised in that case, and found that it was col-

lateral: ‘‘[T}he very nature of a double jeopardy ciaim is such

that it is collateral to, and separable from, the principal issue at

the accused’s impending criminal trial, /.e., whether or not [he]

is guilty of the offense charged. ... [T]he defendant makes no

challenge whatsoever to the merits of the charge against him.

Nor does he seek suppression of evidence... . Rather, he is con-

testing the very authority of the Government to hale him into

court to face trial on the charges against him. [Citations

omitted.] The elements of that claim are completely indepen-

dent of his guilt or innocence.’’ Abney v. United States, supra,

659-60.6

The court in Abney realized that permitting interlocutory

appeals of a claim of double jeopardy might lead to assertion of

many new kinds of ‘‘double jeopardy”’ claims as a means of

obtaining interlocutory review of noncollateral issues. The court

therefore stressed the limited effect of its holding: The appeal-

able issues, however labelled, ‘‘do not extend beyond the claim

of former jeopardy

6This court, following Abney v. United States, 431 U.S. 651, 97 S. Ct.

2045, 52 L. Ed. 2d 651 (1977), has also permitted an interlocutory

appeal based on double jeopardy claims. State v. McKenna, 188

Conn. 671, 672-75, A.2d (1982); State v. Aillon, 182 Conn. 124,

126, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883,

66 L. Ed. 2d 817 (1981); State v. Moeller, 178 Conn. 67, 68-69, 420

A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320

(1979).

A-8

189 Conn 210 FEBRUARY, 1983 207

State v. Seravalli

and encompass other claims presented to, and rejected by the

district court in passing on the accused’s motion to dismiss.

Rather, such claims are appealable if, and only if, they too fall

within Cohen's collateral-order exception to the final-judgment

rule. Any other rule would encourage criminal defendants to

seek review of, or assert, frivolous double jeopardy claims in

order to bring more serious, but otherwise nonappealable ques-

tions to the attention of the courts of appeals prior to conviction

and sentence.’"’ Abney v. United States, supra, 663. The court

therefore held that Abney’s challenge to the sufficiency of the

indictment was not immediately appealable because ‘‘it goes to

the very heart of the issues to be resolved at the upcoming

trial.’’ Id.

In the present case, the double jeopardy aspect of the defen-

dants’ motions for acquittal before the trial court was that

**(t}he first trial was so lengthy and expensive that to permit a

second trial would be fundamentally unfair, unconsiderable

[sic], and amount to the imposition of a punishment of itself.’’

This issue was neither briefed nor argued before us, and is there-

fore considered abandoned. State v. Nims, 180 Conn. 589, 590,

430 A.2d 1306 (1980). This is not, however, the double jeopardy

claim presented on appeal.

As previously noted, on October 7, 1980, this court granted

the state’s motion to dismiss the appeals ‘‘except as to the

defendant[s’] claim of double jeopardy,’’ thereby dismissing the

issues concerning sufficiency of the evidence. See footnote 5,

supra. Following that dismissal, the defendants’ original double

jeopardy claim changed. The only double jeopardy claim now

presented by the

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208 FEBRUARY, 1983 189 Conn 201

State v. Seravalli

defendants on this appeal is that when a mistrial is ordered

because of a deadlocked jury, the double jeopardy clause bars

retrial where there was insufficient evidence at trial to sustain a

guilty verdict even though the defendants requested the mistrial.

This claim clearly ‘‘goes to the very heart of the issues to be

resolved in the upcoming trial.’’ Abney v. United States, supra,

663. It cannot possibly be considered ‘‘collateral’’ to the action

under Cohen and Abney. The Fourth Circuit Court of Appeals

stated the true nature of this type of appeal in dismissing an

interlocutory appeal identical to this one: ‘‘In an effort to bring

this case within the scope of Abney, [the defendant] has

attempted to frame a completely non-collateral issue — the suf-

ficiency of the evidence to convict him (as he has yet to be con-

victed, this goes directly to the merits of his case) — in terms of

double jeopardy.... In essence, he seeks to have an appellate

court decide his guilt or innocence and to perform a function

properly left to the trial judge, that is, determining the suffi-

ciency of the evidence to send the case to the jury. Merely

because he has chosen to characterize the issue as one of double

jeopardy, however, does not require this court to review it... ."’

United States v. Ellis, 646 F.2d 132, 134 (4th Cir. 1981).

We stress here that the only question before us is whether this

appeal is to be permitted at this time. Unquestionably, the

defendants have a right to challenge the sufficiency of the evi-

dence in the first trial, if they are convicted after a second trial.

United States vy. Wilkinson, 601 F.2d 791 (Sth Cir.

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189 Conn 201 FEBRUARY, 1983 209

State v. Seravalli

1979).7 If the evidence is found to be insufficient on appeal, it is

equally clear that they may not be retried thereafter. Burks v.

United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1

(1978).8 For purposes of this appeal, however, we are unwilling

to extend the rule of Cohen to include noncollateral double

jeopardy claims. ‘‘Cohen is a narrow exception, applicable to a

‘small class’ of claims that meet all, not merely some, of its fac-

tors. [Cohen v. Beneficial Industrial Loan Corporation, supra,

546.] The class that we contemplate here is not a small one.

Rather, it comprises all criminal trials

7Although there is dictum in United States v. Wilkinson, 601 F.2d 791

(Sth Cir. 1979), that a denial of a motion to dismiss on double jeop-

ardy grounds is appealable after the first trial, this dictum was rejected

by the same court in United States v. Becton, 632 F.2d 1294, 1296 (Sth

Cir. 1980).

8Before this court, the defendants presented a superficially attractive

argument on the basis of Burks v. United States, 437 U.S. 1, 98S. Ct.

2141, 57 L. Ed. 2d 1 (1978), and Abney v. United States, 431 U.S. 651,

97S. Ct. 2034, 52 L. Ed. 2d 651 (1977). They correctly stated that had

they been convicted at trial, and had that conviction been reversed on

appeal for insufficiency of the evidence, no retrial would be possible.

Burks v. United States, supra, 18. Why, they asked, should they be

more likely to face retrial when they persuaded some jurors of the

insufficiency of the evidence, thereby producing a hung jury, than

they would have if they had convinced the jurors, were convicted, and

then had an appellate court rule the evidence insufficient! The flaw in

this argument is twofold. First, a refusal by a jury to convict does not

necessarily mean that the evidence was insufficient to convict as a mat-

ter of law. If that were the case, no retrial would ever be possible after

a hung jury. Second, in Burks, there was a conviction and a final judg-

ment, followed by an appellate dourt finding that the evidence was

insufficient to convict. In this case there has been no finding that the

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210 FEBRUARY, 1983 189 Conn 201

State v. Seravalli

in which a motion to acquit for insufficiency of the evidence is

made and denied. One of Cohen's factors is not present here.

We therefore lack jurisdiction to consider this appeal which,

though in form asserting former jeopardy, in fact raises only the

denial of the motion to acquit.’’ United States v. Becton, 632

F.2d 1294, 1297 (Sth Cir. 1980).

We hold that the denial of the defendants’ motion for judg-

ment of acquittal based upon the insufficiency of the evidence

following a mistrial because of a deadlocked jury is not appeal-

able as a collateral order raising a claim of double jeopardy

which would be entitled to treatment as a final judgment.9

The appeals are dismissed for lack of jurisdiction.

In this opinion Parskey, Shea and Grillo, Js., concurred.

evidence was insufficient. The only judicial determination of the issue,

by the trial court in denying the motion for judgment of acquittal, was

that the evidence was not insufficient. The defendants argue, in effect,

that even one juror may confer jurisdiction on this court to review an

interlocutory order by simply refusing to convict. Seen in this light,

the proposition is without merit, and we reject it. See United States v.

Becton, 632 F.2d 1294, 1295-96 (Sth Cir. 1980), where the same argu-

ment was made and rejected.

9The defendants have cited no precedent which contradicts our hold-

ing in this case. Every case cited by the defendants concerns an appeal

following a final judgment, i.e.: a conviction and sentence. The state,

however, has cited several cases which considered the precise issue

decided here, and in each of those cases, the court dismissed the

appeals for lack of jurisdiction. United States v. Ellis, 646 F.2d 132

(4th Cir. 1981); United States v. Becton, 632 F.2d 1294 (Sth Cir.

1980); United States v. Carnes, 618 F.2d 68 (9th Cir. 1980); Rafferty

v. Owens, 82 A.D.2d 582, 442 N. Y.S.2d 571 (1981).

Peters, J. (dissenting). The majority opinion states that, upon

conviction after a second trial, the defendants will have an ade-

quate opportunity to challenge the sufficiency of the evidence in

the first trial. If that challenge is successful, ‘‘they may not be

retried thereafter.’’ I infer that this language is intended to indi-

cate that the conviction on the second trial must then be set

aside, no mat-

189 Conn 201 FEBRUARY, 1983 211

State v. Seravalli

ter how much evidence of guilt was there adduced, because

otherwise the double jeopardy claim could never be vindicated

at all.

I have two difficulties with the approach taken by the major-

ity. One is a minor, but practical, problem. It will not be easy,

factually or analytically, on appeal after a second conviction, to

raise the sufficiency of the evidence at the first trial. Arguably

that minor difficulty should give way to the unquestionable

undesirability of allocating scarce judicial resources to a full

appeal after every mistrial. The second difficulty strikes me as

insuperable, however. As we have only recently reiterated in

State v. Spendolini, 189 Conn.92, A.2d (1983), the consti-

tutional protection against double jeopardy affords to a defen-

dant ‘‘a right not to be tried.’’ See United States v. MacDonald,

435 U.S. 850, 860n, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978);

Abney v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 52 L.

Ed. 2d 651 (1977); Price v. Georgia, 398 U.S. 323, 331, 90S. Ct.

1757, 26 L. Ed. 2d 300 (1970). A double jeopardy claim is

entitled to adjudication before rather than after retrial. See

Abney v. United States, supra. Since, as the majority opinion in

this case concedes, the defendants have stated colorable double

jeopardy claims under Burks v. United States, 437 U.S. 1, 98 S.

Ct. 2141, 57 L. Ed. 2d 1 (1978), I do not understand how the

defendants can constitutionally be deprived of their right to be

heard on these claims now. Vindication of their claims after

A-13

another trial can never restore to them their right not to be twice

placed in jeopardy.

I therefore must dissent from the position that we have no

jurisdiction to hear the defendants’

212 FEBRUARY, 1983 189 Conn 212

double jeopardy claims on this appeal. Since the merits of their

claims about the sufficiency of the evidence may reach this court

at another time, I limit this dissent to the jurisdictional question.

APPENDIX B

Transcript: Motion for Judgment of Acquittal

(July 8, 1980) (excerpt)

MR. SAGARIN: If, Your Honor, please, this is the Defen-

dant’s motion for judgment of acquittal following a mistrial,

pursuant to Sections 898 of the practice book, 900 of the prac-

tice book, and the Federal and the State Constitutions, primary

grounds for the motion after this lengthy trial, which took

about six weeks. That the evidence would not permit a finding

of guilty beyond a reasonable doubt on any of the charges

against the Defendant. And that the failure to grant the motion

for judgment of acquittal would be so fundamentally unfair and

amount to such a burden and expense on the Defendant’s part,

given the full and complete chance the State has had to prove its

case. That it will violate the double jeopardy provisions of the

State and the Federal Constitutions.

* * * *

As far as the second part of the argument is concerned, with

respect to this lengthy trial, particularly in the circumstances

where the State has several other cases pending against these

Defendants. If they want to subject them to jeopardy on those

charges, basically claiming insurance fraud, then the State

ought to be required to go to trial on those charges, but on this

charge where they’ve had the full chance to present the evidence

before a jury, and to get a jury either to agree with it, or dis-

agree with it. And where we think there’s been a failure of proof

or certain of proof, in such a conflicting state, that would not

justify proof beyond a reasonable doubt. To subject these

Defendants’ to pay for substantial transcript, to be subject to

another six week trial, to be subject to the publicity problems

that this would raise, together with their other claims where

really they’re relaying on the same witnesses, would in our view

amount to a violation of the double jeopardy provision of the

Federal and State Constitutions, and would be so fundamen-

tally unfair, that amount to a denial of due process itself.

B-2

THE COURT: All right. With regard to 22266, motion for

judgment of acquittal, denied. In the file there’s another motion

for judgment of acquittal.

MR. SAGARIN: That’s the same motion, Your Honor. We

want to make sure it was filed within five days. And so we have

one hand delivered over while the other is in the mail.

THE COURT: All right. I'll deny that one too. And what |

have said with regard to that file is applicable to 22267.

MR. SAGARIN: Thank you, Your Honor, exception.

THE COURT: Exception is noted for the record.

C-1

APPENDIX C

Memorandum of Decision, Dorsey, J.

(Nov. 10, 1980)

MEMORANDUM OF DECISION

Defendant has filed as of June 26, 1980, a written motion for

judgment of acquittal. The motion specifies two grounds which

would permit the court to enter a judgment of acquittal:

1. The evidence would not permit a finding of guilty beyond

a reasonable doubt on any of the charges against the defendant.

2. The first trial was so lengthy and expensive that to permit a

second trial would be fundamentally unfair, unconsiderable and

amount to the imposition of a punishment of itself.

The motion refers to Section 898 of the Practice Book. Sec-

tion 898 refers to Section 886 which is entitled ‘*Mistrial.’’ Sec-

tion 886 of the Practice Book contains no text. Section 887 of

the Practice Book contains text authorizing the judicial author-

ity to declare a mistrial for prejudice to the defendant. Section

888 of the Practice Book authorizes the judicial authority to

declare a mistrial for prejudice to the State. Section 889 of the

Practice Book authorizes the judicial authority to declare a mis-

trial in any case in which the jury is unable to reach a verdict.

The court declared a mistrial pursuant to Practice Book Sec-

tion 889 in each of these cases after satisfying itself that the jury

was unable to reach a verdict on any of the counts before them

and after receiving a mistrial request from defendant.

During the trial, after the jury indicated it was deadlocked,

the court then charged the jury in accordance with ‘‘Chip

Smith.’’ When the jury again indicated its inability to reach a

verdict, the state’s attorney requested that the court administer

a second ‘‘Chip Smith’’ charge. Defense counsel opposed this

request and unambiguously and expressly requested that the

C-2

court declare a mistrial because the jury was unable to reach a

verdict. The state’s attorney opposed defense counsel's request

in an equally unambiguous manner.

The court refused to administer another ‘‘Chip Smith’’

charge and granted defendant’s motion for mistrial because it

believed that another ‘Chip Smith’’ charge would be unduly

coercive. In reaching its decision, the court was satisfied that the

jury was indeed deadlocked and that defense counsel was mak-

ing an intelligent rational waiver of his client’s rights to have

this trial completed by this jury.

At the trial and at the hearing on these motions, defense

counsel made no allegation of prosecutorial or judicial miscon-

duct. Generally speaking, the double jeopardy clause does not

stand in the way of re-prosecution where the defendant has

requested the mistrial. Lee v. United States, 97 S. Ct. 2141

(1977); United States v. Jorn, 400 U.S. 470 (1970). The double

jeopardy clause does protect a defendant against governmental

actions intended to provoke mistrial requests and thereby to

subject defendants to substantial burdens imposed by multiple

prosecutions. It bars retrials where bad faith conduct by judge

or prosecutor threatens harassment of an accused by successive

prosecutions or declarations of a mistrial so as to afford the

prosecution a more favorable opportunity to convict the defen-

dant. Divans v. California, 98 S. Ct. 1 (1977).

At the time of trial, defendant sought a mistrial and the State

opposed it solely within the context of the deadlocked jury and

without reference to governmental or judicial misconduct.

The defendant’s first post-trial written ground for judgment

of acquittal is that the evidence would not permit a finding of

guilt beyond a reasonable doubt on any of the charges against

the defendant. The court rejected this argument on two occa-

sions during the course of the trial when raised pursuant to

Practice Book Sections 884 and 885. The court's recollection of

the evidence compels a denial of the motion on this ground.

The defendant’s second written ground for acquittal is that

the first trial was so lengthy and expensive that to permit a sec-

ond trial would be fundamentally unfair, inconsiderate and

amount to the imposition of punishment of itself. The language

suggests a due process argument.

This reasoning was rejected by the Second Circuit in United

States v. Castellanos, 478 F2d. 749 (2nd Cir.) as not being

encompassed within the principles of United States v. Perez, 22

U.S. (9 Wheat.) 6 L. Ed. 165, which provides the guides for

determining when trials should be discontinued. Our Supreme

Court has recently affirmed these principles in State of Con-

necticut v. Guillermo Aillon, Vol. XLII, No. 7, p. 25, CLJ,

Aug. 12, 1980. These principles compel a denial of defendant’s

motion on the second ground asserted by defendant.

/s/Donald Dorsey, J.

DONALD DORSEY, J.