Opposition Brief — Evans v. Connecticut

No. 871378 \*

In Che

QUARK

Supreme Court Of Che United States

OCTOBER TERM, 1987

WILLIAM EVANS,

Petitioner,

V.

STATE OF CONNECTICUT,

Respondent.

BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE

STATE OF CONNECTICUT

SUSANN E. GILL

Assistant State’s Attorney

Appellate Unit

Office of the Chief State’s Attorney

Connecticut Division of

Criminal Justice

P.O. Box 5000

340 Quinnipiac Street

Wallingford, Connecticut 06492

(203) 265-2373

Counsel of Record for

the Respondent

Printed by

Brescia’s Printing Services, Inc.

66 Connecticut Boulevard

East Hartford, CT 06108

528-4254

QUESTION PRESENTED

DOES THE DOUBLE JEOPARDY CLAUSE PRECLUDE

PROSECUTION FOLLOWING A DISMISSAL BASED

ON THE TRIAL COURT'S ERRONEOUS

CONCLUSION THAT THE STATE'S INABILITY TO

ALLEGE THE SPECIFIC DATE OF THE OFFENSE

DENIED THE DEFENDANT HIS RIGHT TO NOTICE

AND TO PRESENT AN ALIBI?

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

REASONS FOR DENIAL OF THE WRIT

PETITIONER'S CLAIM IS CON-

TROLLED BY ESTABLISHED CASE

LAW AND THUS DOES NOT WARRANT

THIS COURT'S ATTENTION

CONCLUSION

Ee!

18

TABLE OF AUTHORITIES

CASES PAGE

Arizona v. Washington, 434 U.S. 497

(1978)

Serfass v. United States, 420 U-S.

377 (1975) he

State v. Evans, 205 Conn. 528, 534

A.2d 1159 -(1988) ene i oe Fae Oe

United States v. Maker, 751 F.2d

614 (3rd Cir. 1984) — denied,

472 U.S. 1017 (1985

United States v. Martin Linen Supply

Co., 430 U.S. 564 (1977) ;

United States v. Scott, 437 U.S. 82

(1978) er ee er ee se Pe en ey

United States v. Sisson, 399 U.S. 267

(1970)

STATUTES

Connecticut General Statutes § 53-

21

Connecticut General Statutes § 53a-

49(a)(2)

Connecticut General Statutes § 53a-

Se ie

Lt § nn a er tern mer gr ep ee es

STATUTES-CONTINUED

Connecticut General Statutes § 53a-

71(a)

General Statutes § 53a-71(a)(1)

Connecticut General Statutes § 53a-

95(a)

Connecticut General Statutes § 54-

96

RULES OF COURT

Practice Book § 831

Practice Book § 4023

La

PAGE

a

ho

t-

tJ

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

FIFTH AMENDMENT

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 offence 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.

1? S|

CONNECTICUT GENERAL STATUTES

Sec. 53-21. Injury or risk of injury

to, or impairing morals of, children.

Any person who willfully or unlawfully

causes or permits) any child under the

age of sixteen years to be placed in

such a situation that its life or limb

is endangered, or its health is likely

to be impaired, or does any act likely

to impair the health or morals of any

such child, shall be fined not more than

five hundred dollars or imprisoned not

more than ten years or both.

Sec. 53a-49. Criminal Attempt: Suf-

ficiency of conduct; renunciation as

defense. (a) A person is guilty of an

attempt to commit a crime if, acting

with the kind of mental state required

for commission of the crime he: (1)

a¥

Intentionally engages in conduct which

would constitute the crime if attendant

Circumstances were as he believes them

to be; or (2) intentionally does or

omits to do anything which, under the

Circumstances as he believes them to be,

is an act or ommission constituting a

substantial step ina course of conduct

planned to culminate in his commission

of the crime.

(b) Conduct shall not be held to

constitute a substantial step under

subdivision {2) of subsection (a) unless

it is strongly corroborative of the

actor's criminal purpose, shall not be

held insufficient as a matter of law:

(1) Lying in wait, searching for or

foliowing the contemplated victim of the

crime to go to the place contemplated

for its commission; (3) reconnoitering

sanantonio

4 pisinanneneeeeaniaineienea ee

the place contemplated for the commis-

Sion of the crime; (4) unlawful entry of

a structure, vehicle or enclosure in

which it is contemplated that the crime

Will be committed; (5) possession of

materials to be employed in the commis-

sion of the crime, which are specially

designed for such unlawful use or which

can serve no lawful purpose of the actor

under the circumstances; (6) possession,

collection or fabrication of materials

to be employed in the commission of the

crime, at or near the place contemplated

for its commission, where such posses-

sion, collection or fabrication serves

no lawful purpose of the actor under the

circumstances; (7) soliciting an

innocent agent to engage in conduct

constituting an element of the crime.

(c) When the actor's conduct would

Vi

otherwise constitute an attempt under

subsection (a), it shall be a defense

that he abandoned his effort to commit

the crime or otherwise prevented its

commission, under circumstances manifes-

ting a complete and voluntary renuncia-

tion of his criminal purpose.

Sec. 53a-70. Sexual assault in the

first degree: Class B ‘felony: One year

not suspendable. (a) A person is guilty

of sexual assault in the first degree

when such person compels another person

to engage in sexual intercourse by the

use of force against such other person

or a third person, or py the threat of

use of force against such other person

Or against a third person which reason-

ably causes such person to fear physical

injury to such person or a third person.

(b) Sexual assault in the first

Vil

cia aaa a iii ak

degree is a class B felony for which one

year of the sentence imposed may not be

suspended or reduced by the court.

Sec. 53a-71. Sexual assault in the

second degree: Class C felony: Nine

months not suspendable. (a) A person is

guilty of sexual assault in the second

degree when such person engages in

sexual intercourse with another person

and such other person is (1) under

fifteen years of age, or (2) mentally

defective or mentally incapacitated to

the extent that he is unable to consent

to such sexual intercourse, or (3)

physically helpless, or (4) less than

eighteen years old and the actor is such

person's guardian or otherwise respon-

Sible for the welfare, or (5) in custody

of law or detained in a hospital or

other institution and the actor has

Vill

Supervisory or discipiinary authority

over such other person.

(b) Sexual assault in the second

degree is a class C felony for which

nine months of the sentence imposed may

not be suspended or reduced by the

court.

Sec. 53a-95. Unlawful restraint in the

first degree: Class D felony. (a) A

person 1S guilty of unlawful restraint

in the first degree when he restrains

another person under circumstances which

expose the latter to a substantial risk

of physical injurv.

(b) Unlawful restraint in the first

degree is a class D felony.

Sec. 54-96. Appeals by the state from

superior court in criminal cases.

Appealt from the rulings and decisions

of the superior court, upon all ques-

1x

tions of law arising on the trial of

crimnal cases, may be taken by the

state, with the permission of the

presiding judge, to the supreme court or

to the appellate court, in the same

manner and to the same effect as if made

by the accused.

§ 831 Bill of Particulars--Time for

Filing

Pursuant to Sec. 811, the defendant

may make a motion, or the judicial

authority may order at any time, that

the prosecuting authority file a bill of

particulars.

§ 4023. Transfer of Cases by Supreme

Court-In General

The supreme court may transfer to

itself a cause in the appellate court.

Except for any matter brought pursuant

to its original jurisdiction under the

constitution, the supreme court may

transfer a cause or class of causes from

itself, including any cause or class of

causes pending on July 1, 1983, to the

appellate court. The court to which a

cause is transferred has jurisdiction.

There shall be no fee on_- such

transfer, but an appellant other than

the state or a party for whom fees,

costs and security have been waived

pursuant to Sec. 4016 shall within 20

days file in the trial court a sub-

stituted recognizance in the amount of

$500.00. The onset clerk of the supreme

court shall notify all parties and the

clerk of the trial court that the appeal

has been transferred. A case so

transferred shall be entered upon the

docket of the court to which it has been

transferred and the chief clerk shall

X1

require the parties to take such steps

as may be necessary to make the appeal

conform to the rules of the court to

which it has been transferred.

Upon the transfer of an appeal, the

time within which the briefs or other

documents must be filed shall be

governed by the rules of the court to

which the case has_ been transferred,

except that such time limit for the

document next to be filed shall not be

less than thirty days from issuance of

the notice of transfer.

Nii

STATEMENT OF THE CASE

The state charged the defendant in

an undated six count information with

two counts of sexual assault in the

first degree, Connecticut General

Statutes § 53a-70(a)1; two counts of

sexual assault in the second degree,

Connecticut General Statutes § 53a-

71(a); one count of unlawful restraint

in the first degree, Connecticut General

Statutes § 53a-95(a); and one count of

—

risk of injury to a minor, Connecticut

General Statutes § 53-21. R. at 1.2 In

its arrest warrant affidavit and plead-

ings, the state alleged that during July

1984 the defendant sexually assaulted a

i The text of all Constitutional,

statutory, and Connecticut Practice Book

provisions appears supra, pages 111-%X1l.

¢ Citations are to the printed

Record in the Connecticut Supreme Court.

fourteen year old boy enrolled in an

alcohol counseling program run by the

defendant.

On April 24, 1985, the defendant

filed a motion for a Bill of Particulars

requesting, inter alia, that the state

specify the date and time of the offen-

ses charged. See Practice Book § 831.

R. at 2. On February 4, 1986, the state

filed a substitute information deleting

one count of sexual assault in the first

degree and one count of sexual assault

in the second degree and adding a count

each of attempted sexual assault in the

first degree and attempted sexual as-

sault in the second degree, Connecticut

General Statutes §§ 53a-49(a)(2), 53a-

70(a), 53a-71(a)(1). R. at 2-3.

In response to the defendant's

motion, the state filed a Bill of

Particulars dated February 10, 1986,

alleging that the offenses took place

during the late afternoon, early evening

hours, on one of the last two weekends

in July 1984. R. at 3-6. The date of

the assault was thus restricted to one

of four possible dates: July 21, 22, 28,

or 29, 1984.

Despite the fact that the state's

allegations had narrowed the occurrence

to a period of several hours on one of

four days in July, the defendant filed a

motion to dismiss the information,

alleging that "the amended information

as to date and time is not specific

enough for him to assert an alibi

defense, tc confront his accuser, and in

general to adequately present a de-

fense." The trial court denied the

motion on February 10. 1986, the same

2

)

date that it was filed. R. at 7.

On February 13, 1986, after the

jury had been sworn,? the defendant

filed a motion requesting receipt of

further particulars or, alternatively,

dismissal of the charges. R. at 7-10.

At the hearing on the defendant's

motion, counsel for the defendant

Claimed to have alibi witnesses for

three of the four days alleged by the

state. T. at 8. The court again denied

the defendant's motion. R. at 10.

On the following day, counsel for

the defendant provided the court with

affidavits of his claimed alibi wit-

nesses. R. at 14. After receiving the

“affidavits, the trial court reconsidered

the defendant's motion sua _ sponte and

3 The jury was sworn on February

dismissed the information. S... @& -2a3

see Petitioner's Appendix at 16A-42A

(Trial Court's Oral Memorandum of

Decision). The state immediately

excepted to the trial court's ruling and

requested permission to appeal pursuant

to Connecticut General Statutes § 54-96.

The defendant objected to the state's

request claiming that such an appeal

would violate double jeopardy. The

trial court overruled the defendant's

objection and gave the state permission

to appeal. T. at 31-32.

The state's appeal was originally

filed in the Connecticut Appellate

Court. On March 7, 1986, the defendant

moved to dismiss the state's appeal on

the ground that 1t was barred by the

Touble Jeopardy Clause of the United

State's Constitution. The state opposed

c

Y

the defendant's motion; both sides filed

memoranda of law setting forth their po-

Sitions. After hearing argument, the

Appellate Court denied the motion to

dismiss. Thereafter, the Connecticut Su-

preme Court transferred the appeal to

itself, pursuant to Practice Book §

4023.

In his brief on appeal, the defen-

dant claimed that the trial court's

dismissal was the functional equivalent

of an acquittal and that a remand for

trial would violate the double jeopardy

Clause of the Fifth Amendment to the

United State's Constitution and the due

process clause of the Connecticut Con-

stitution. On December 15, 1987, the

Connecticut Supreme Court found that the

trial court erred in granting the defen-

dant's motion to dismiss and that double

jeopardy did not bar a remand for trial.

The court therefore remanded with direc-

tion to deny the motion to dismiss and

for further proceedings according to

law. State v. Evans, 205 Conn. 528, 534

A.2dad 1159 (1988).

The defendant petitions for a writ

of certiorari to review the Connecticut

Supreme Court's resolution of his double

jeopardy claim.

SUMMARY OF THE ARGUMENT

The defendant contends that the

trial court's order dismissing the in-

formation after jeopardy had attached

was a dismissal "on the merits" and, as

such, operated as an acquittal. Petition

at 17-18. He bases this contention on

two premises: first, that the trial

court ruled, albeit erroneously, that

time was an element of each offense

alleged by the state; and second, that

the state conceded it could not prove

the precise date on which the assaults

occurred. Petition at 15-16. Thus he

contends that the trial court dismissed

the charges because it considered the

state's evidence legally insufficient.

The defendant's petition does not

warrant this court's consideration. The

opinion below neither disregards precent

nor poses an issue on which various

jurisdictions are split.

Moreover, the record reveals that

the trial court based its dismissal on

considerations of notice and prejudice

to the defendant's anticipated defense,

not on the sufficiency of the evidence.

On this basis, the Connecticut Supreme

Court correctly held that the trial

court's dismissal was not a determina-

tion of any of the factual elements of

the offense charged. State v. Evans,

205 Conn. at 538.

Nevertheless, even if the defen-

dant's premises are accepted as true,

the Connecticut court's resolution is

sound. A trial court's erroneous

assumption that time is an element of an

offense cannot change the composition of

a statutorily-defined crime. Therefore,

because the dismissal was entered at the

defendant's request and on basis unre-

lated to guilt or innocence, a subse-

quent trial does not violate double

jeopardy.

REASONS FOR DENIAL OF THE WRIT

PETITIONER'S CLAIM IS CONTROLLED BY

ESTABLISHED CASE LAW AND THUS DOES

NOT WARRANT THIS COURT'S ATTENTION

The mere fact that the jury had

been sworn, and thus jeopardy attached;

Serfass v. United States, 4z90 U.S. 377

(1975); prior to dismissal does not mean

that further proceedings against the

defendant are barred. The law is clear

that, where "the defendant elect{s] to

seek termination of the trial on grounds

unrelated to guilt or innocence," a

retrial does not offend double jeopardy.

United States v. Scott, 437 U.S. 82, 96-

97 .{3978)}. The operative question 1s

whether "“the ruling of the judge,

whatever its label, actuaily represent

ay)

a resolution [in the defendant's favor],

correct or not, of some or all of the

factual elements of the offense

charged.'" Id., at 97 quoting United

States v. Martin Linen Supply Co., 430

A review of the proceedings reveals

that the trial court never weighed the

10

evidence in this case. Indeed, at the

time of its ruling no evidence had yet

been presented.‘ Rather, the court

Simply concluded, as a matter of law,

that the state's inability to allege the

precise date of the offense prejudiced

the defendant in the preparation of his

case and the presentation of his alibi.

The court's ruling was thus based on the

defendant's rights to notice of the

charges against him and to present a

defense, not on a finding of insuf-

ficiency.

4 The Connecticut Supreme Court

found that "prior to the dismissal of

the substitute information, the trial

judge had before him for consideration

only the record pleadings (the = sub-

stitute information and the motions) and

the three affidavits submitted by the

defendant for consideration in support

of his motion to dismiss." State v.

Bvane, 205 Conn. at $28, 336, 334-4: 2¢

1153 (1986). None of these documents

constitute evidence. Id.

11

Although the trial court's charac-

terization of the nature of its action

is not determinative; United States yv.

Sisson, 399 U.S. 267, 270 (1970); review

cf the basis of the defendant's trial

motions and the scope of the court's

ruling is illuminating. The defendant's

Original motion to dismiss asserted that

the "amended information as to date and

time is not specific enough for him to

assert an alibi defense, to confront his

accuser, and in general to adequately

present a defense." ee eee His

subsequent motion, in which he requested

further specification in the pleadings

or a dismissal, again asserted that

"(wlithout the specific date of the

alleged offenses the Defendant will be

seriously prejudiced and his constitu-

tional rights to due process, equal

12

protection, confrontation, and effective

assistance of counsel under the State

and Federal Constitutions violated." R.

at 3. Further, when granting the

defendant's motion, the trial court

"specifically disclaimed making a

factual determination of whether the

defendant is guilty or innocent of the

charges." State v. Evans, 205 Conn. at

538. ? Instead, the court made clear

5 The Connecticut Supreme Court

quoted from the trial court's oral

memorandum of decision as follows:

In rendering its decision the trial

court stated: “I want it completely

understood that [this decision] is

in no way related to my opinion as

to whether or not the defendant is

guilty or not guilty of these

charges. That is not my function

.{this decision] is not to be

considered by anyone fas] an

opinion by me that I think that the

defendant is innocent of these

charges. My decision is not to be

given any weight with regards to

innnocence or guilt.

a3

that its ruling was based on a supposi-

tion prejudice to the defendant's alibi

defense. See R. at 17; Petitioner's

Appendix at 34A (oral memorandum)

("Without knowing the specific dates

that this event is alleged to have

occurred, it's impossible for the jury

to be able to weigh an alibi defense

against the testimony of the victim

because there is no way that the jury

will be able to say, well, this event

occured (sic) on Juiy ist, hypotheti-

cally, and the defendant has an alibi

for July ist.")

Thus, neither the court nor the

defendant himself characterized the

issue at trial as one of guilt or

innocence. Rather, it is clear that the

defendant was asserting his right to

State v. Evans, 205 Conn. at 533.

14

sufficient specificity in the charges to

allow him to prepare his defense.

Further, once the date of the offenses

was narrowed down to four days in July

1984, the defendant contended that the

state's inability to pinpoint the

precise day denied him the effectiveness

of his proposed alibi defense.

The defendant's assertion that the

court dismissed on the mistaken belief

that the date cf an offense 1S an

essential element is not supported by

the record. In its oral ruling, the

court noted that " .. . [Connecticut]

law is pretty well established that

unless the date is an element of the--

material element of the crime, the

Specific date and time of the event lis

not essential." R. at 15; Petitioner's

Appendix at 31A. The court went on to

note that some authority indicates that

the date "may be material where not

providing the date may prejudice the

rights of the defendant to assert

defenses." Id. When the court's

remarks are viewed in context, it is

clear that the court did not find that

an alibi transforms the date of an

offense into an element of the crime,

but only that the date may become

"material" to the defendant if he

asserts an alibi defense.

Nevertheless, if the court's re-

marks are interpreted to signify that it

believed the date of the offense is,

under some circumstances, an element of

the crime, the defendant is still not

entitled to the double jeopardy protec-

tion he claims. A trial court's erro-

neous assumption that something is an

16

element of the crime does not make it

so. United States v. Maker, 751 F.2d

614, 624 (3rd Cir. 1984) cert. denied,

472 U.S. 1017 (1985) (holding that

district court's dismissal because the

state could not prove what it erro-

neously assumed to be an element of the

offense did not operate as an acquit-

tal.) Therefore, because the court did

not determine any of the actual elements

of the offense in the defendant's favor,

double jeopardy presents no barrier to

prosecution. The public should not be

deprived of "its valued right to ‘one

complete opportunity to convict those

who have violated its laws.' Arizona v.

Washington, [434 U.S. 497, 509 (1978)]."

United States v. Scott, 437 U.S. at 100.

17

CONCLUSION

Because the issue advanced by

petitioner is not one on which various

courts have split and may be comfortably

decided on the basis of existing case-

law, it does not warrant this Court's

attention. The State of Connecticut

respectfully urges this Court to deny

the defendant's petition for certiorari.

Respectfully submitted,

THE STATE OF CONNECTICUT

By:

Assistant State's Attorney

Appeliate Unit

Office of the Chief State's

Attorney

340 Quinniplac Street

Wallingford, CT 06492

(203) 265-2373

Counsel of Record for the

Respondent

MICHAEL E. O'HARE

Assistant State's Attorney

Judicial District of

Hartford/New Britain

18

FRANK D'ADDABBO

Assistant State's Attorney

Judicial District of

Hartford/New Britain

JOHN M. MASSAMENO

Assistant State's Attorney

Judicial District of

Hartford/New Britain

19