Reply Brief — Connecticut v. Colton

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JAN 17 1996

No. 95-726

CLERK

In The

Supreme Court Of The United States

October Term, 1995

>

STATE OF CONNECTICUT,

Petitioner,

v.

MURRAY COLTON,

Respondent.

*

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

+

REPLY TO BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

+

JOHN M. BAILEY

Chief State’s Attorney

JACK W. FISCHER*

Assistant State’s Attorney

Office of the Chief State’s Attorney

300 Corporate Place

Rocky Hill, CT 06067

(860) 258-5807

*Counsel of Record

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TABLE OF CONTENTS

PAGE

TABLE GF ALTitiieee CEE 6 vc ist desiceweesen:

STATUTORY PROVISIONS INVOLVED ......... l

I. THIS COURT HAS JURISDICTION TO

REVIEW THE DECISION BELOW ......... l

II. THE DECISION BELOW WAS EX-

PRESSLY CONFINED TO FEDERAL

CONSTITUTIONAL LAW ..ccvcvccccvecs 6

Ill. THE SPLIT IN THE CIRCUITS IS

WELL RECOGNIZED AND REQUIRES

RESOLUTION BY THIS COURT .......... 7

IV. THE DECISION BELOW IS AN APPROPRI-

ATE VEHICLE FOR ADDRESSING THE

QUESTION PREGEINEED «cc cencccccsess 9

ei 8) re ee Te ae ee eee 10

TABLE OF AUTHORITIES

PAGE

CASES

Beringer v. Sheahan, 934 F.2d 110 (7th Cir.),

cert. denied, 502 U.S. 1006, 112 S.Ct. 641.

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Cox Broadcasting Corporation v. Cohn, 420 U.S. 469,

95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) ..... my »

Fugitt v. Lemacks, 833 F.2d 251 (11th Cir. 1987) .. . 7

Jacob v. Clark, 52 F.3d 178 (8th Cir. 1995) . aes 7

Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083,

72 L.EG.24 416 (1982) ........... peawsoe Mee

Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989,

6 op Sere rerr wy a

ad

State v. Colton, 234 Conn. 683, 663 A.2d 339 (1995) . 6.7

United States v. Kras, 409 U.S. 434, 443. 93 S.Ct. 631.

Eg Re a My

United States v. Wurzbach, 280 U.S. 396.

50 S.Ct. 167, 74 L.Ed. 508 (1930) ........... er

STATUTES

Le es 1, 2

1

STATUTORY PROVISIONS INVOLVED

United State Code §1257 (a) provides:

(a) Final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be reviewed

by the Supreme Court by writ of certiorari where the validity

of a treaty or statute of the United States is drawn into

question or where the validity of a statute of any state is drawn

into question on the ground of it being repugnant to the

Constitution, treaties, or laws of the United States, or where

any title, right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or statutes of, or

any commission held or authority exercised under the United

States.

eoece $ -----

I. THIS COURT HAS JURISDICTION TO

REVIEW THE DECISION BELOW

After being afforded appellate review of his double

jeopardy claim, the respondent now asserts that the ruling by

the Connecticut Supreme Court is an interlocutory order, not

a "final judgment" under 28 U.S.C. § 1257. The respondent

argues that the ruling is not a final judgment because it is

"nothing more" than a remand for an evidentiary hearing.

' The petitioner takes this opportunity to correct an error in its petition.

In footnote 2, on page nine, the first sentence should read "The petitioner

argued on appeal,” not the respondent. The petitioner apologizes for the

error and any inconvenience it may cause.

2

The respondent’s assertion is meritless. This Court has

jurisdiction over this case because the double jeopardy issue

"will not survive for this Court to review, regardless of the

outcome of the proceedings on remand." Pennsylvania vy.

Ritchie, 480 U.S. 39, 48, 107 S.Ct. 989, 996, 94 L.Ed.2d

(1987). Thus, the unreviewed decision of the Connecticut

Supreme Court will remain in effect and leave unquestioned its

expansive and erroneous interpretation of the Double Jeopardy

Clause. See Cox Broadcasting Corporation v. Cohn, 420 U.S.

469, 485-86, 95 S.Ct. 1029, 1041, 43 L.Ed.2d 328 (1975).

"Normally the finality doctrine contained in §1257{] is

not satisfied if the state courts still must conduct further

substantive proceedings before the rights of the parties as to

the federal issues are resolved." Pennsylvania v. Ritchie, 480

U.S. at 47. 107 S.Ct. at 996. However, one of the exceptions

to this general rule states that the Court may consider cases:

"’[W]here the federal claim has been finally

decided, with further proceedings on the merits

in the state courts to come, but in which later

review of the federal issue cannot be had,

whatever the ultimate outcome of the case. . . .

[I]n these cases, if the party seeking interim

review ultimately prevails on the merits, the

federal issue will be mooted; if he were to lose

on the merits, however, the governing state law

would not permit him again to present his

”

federal claims for review.

ee

3

Pennsylvania v. Ritchie, 480 U.S. at 47-48, 107 S.Ct. at 996,

quoting Cox Broadcasting Corporation v. Cohn, 420 U.S. at

481, 95 S.Ct. at 1039.

Here, the case before this Court satisfies this standard

because the Fifth Amendment Double Jeopardy issue "will not

survive for this Court to review, regardless of the outcome of

the proceedings on remand." Pennsylvania v. Ritchie, 480

U.S. at 48, 107 S.Ct. at 996. Procedurally, this case is

virtually identical to Pennsylvania v. Ritchie.

First, if the trial court decides, on the merits, that no

prosecutorial misconduct occurred, then Connecticut will have

prevailed and will have no basis to seek review. /d. In this

situation, the question of whether a hearing on the issue of

prosecutorial misconduct should have been held will be moot.

Id. Should the respondent appeal the trial court’s decision,

Connecticut’s only method for preserving the constitutional

issue would be by cross-claims. /d. "Thus, the only way that

this Court will be able to reach the [double jeopardy] issue is

if [the respondent] eventually files a petition for certiorari on

the trial court’s adverse ruling, and [Connecticut] files a cross-

petition. When a case is in this procedural posture, [this Court

has] considered it sufficiently final to justify review." /d.

(Emphasis in original).

Secondly, if Connecticut succeeds upon remand and the

respondent does not directly appeal and subsequently is

convicted at trial, Connecticut’s ability to gain review of this

issue would again depend upon the respondent’s willingness to

raise the issue on appeal, and, again, Connecticut would have

to cross-appeal. If the respondent were acquitted, Connecticut

4

would be "barred from seeking review by the Double Jeopardy

Clause." Pennsylvania v. Ritchie, 480 U.S. at 48, 107 S.Ct. at

996.

Finally, if the trial court decides, on the merits, that

there was prosecutorial misconduct and that double jeopardy

bars a retrial, although Connecticut could appeal the issue on

the merits, the question of whether a hearing should have been

held could not be successfully appealed because of the law-of-

the-case doctrine. See Pennsylvania v. Ritchie, 480 U.S. at 48

n.7, 107 S.Ct. at 997 n.7. ("if the [state] were to raise the issue

again in a new set of appeals, the courts below would simply

reject the claim under the law-of-the-case doctrine.) While

Connecticut might ultimately be able to raise this claim in this

Court, "[t]he goals of finality would be frustrated, rather than

furthered, by [such] wasteful and time consuming procedures."

Id. '

In sum, if this Court does not consider this double

jeopardy issue now, there may be no opportunity to do so in

the future. /d. In such circumstances, this Court has

jurisdiction to review the decision below. ”

* Indeed, the very case at the heart of this petition came to

this Court in a similar posture. In Oregon v. Kennedy, 456

U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), after

gaining a mistrial, the respondent Kennedy’s motion to dismiss

on double jeopardy grounds was denied by the trial court.

Kennedy, 456 U.S. at 669-70, 102 S.Ct. at 2086. He

successfully appealed to the Oregon Court of Appeals. 456

U.S. at 670, 102 S.Ct. at 2086. This Court granted Oregon’s

petition for certiorari, reversed the judgment of the Oregon

(continued...)

5

The respondent further contends that the double

jeopardy claim has not been "finally decided" because it must

await the factual findings of the remand hearing. This

contention is also without merit.

The question at issue is whether the Double Jeopardy

Clause authorizes such a proceeding at all. The decision below

has decided that issue fully and completely. The results of an

evidentiary hearing are thus completely irrelevant to the

question of whether that hearing should even be held. Most

emphatically, it is the very initiation of such hearings - and the

waste of time and resources that will accompany them - that

the petitioner fears, not the findings.

The question presented to this Court is a question of

federal constitutional law:

Whether a claim under Oregon v. Kennedy, 456

U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416

(1982) can be raised when the defendant never

moved for mistrial during the prior prosecution

and the prior conviction was reversed on appeal

on grounds other evidentiary insufficiency or

prosecutorial misconduct?

This question has been fully decided by the highest court in

Connecticut. This Court thus has jurisdiction to review the

*(...continued)

Court of Appeals and remanded the case for further

proceedings. 456 U.S. at 679, 102 S.Ct. at 2091.

6

question presented. For the reasons set forth in the petition for

writ of certiorari, the question presented should be reviewed.

II. THE DECISION BELOW WAS EXPRESSLY

CONFINED TO FEDERAL CONSTITUTIONAL

LAW

The respondent next contends that the decision below

rests on “independent and adequate state grounds.” This

contention is as inexplicable as it is meritless.

The decision below was expressly confined to federal

constitutional law, with the court stating:

Because the defendant has not presented a

separate analysis of his double jeopardy claim

under the state constitution, we confine our

analysis to the application of the federal

constitution’s double jeopardy bar.

State v. Colton, 234 Conn. 683, 686 n.6, 663 A.2d 339, 341

n.6 (1995).

Indeed, this case could not involve a state issue because the

Connecticut constitution does not have a double jeopardy

provision; id.; and, as noted, the respondent did not raise a

claim under state law. /d.

Equally meritless is the respondent’s contention that the

decision below was a state procedural ruling based upon a

7

"long line of state precedent." The respondent’s elaborate

argument does not require an elaborate response.”

The decision below expressly stated that the issue was

“one of first impression in Connecticut." State v. Colton, 234

Conn. at 696, 663 A.2d at 346. Thus there is no "long line of

state precedent." Moreover, the decision was confined to

federal constitutional grounds and is bereft of procedural

analysis. Clearly it does not involve an issue of established

state procedure.

il. THE SPLIT IN THE CIRCUITS IS WELL

RECOGNIZED AND REQUIRES RESOLUTION

BY THIS COURT

The respondent next contends that there is no split

among the Circuit Courts on the question presented. Contrary

to the respondent’s assertion, however, the Eighth Circuit and

the Connecticut Supreme Court openly acknowledge that a

split on the issue does exist between the Second and Seventh

Circuits. Jacob v. Clark, 52 F.3d 178, 179 (8th Cir. 1995);

State v. Colton, 234 Conn. at 696, 663 A.2d at 346.

The respondent’s argument that there is no need to

resolve this split should also be rejected. A clear call for

guidance emanates from the number of Circuits that have

"struggled with the question" and have left the question

undecided. See Jacob, 52 F.3d at 181; Fugitt v. Lemacks, 833

F.2d 251, 252 n. 1 (11th Cir. 1987).

* See United States v. Wurzbach, 280 US. 396, 399, 50 S.Ct. 167, 169,

74 L.Ed. 508 (1930).

Nor does the respondent’s reference to this Court’s

denial of certiorari in other cases buttress his argument. A

denial of certiorari carries no implication or inference. United

States v. Kras, 409 U.S. 434, 443, 93 S.Ct. 631, 637, 34

L.Ed.2d 626 (1973). If one were to speculate as to why

certiorari were denied, the most likely explanation is that

review by this Court would not have resulted in any relief.

This is because most courts have avoided the issue by ruling

instead that the merits of the case would not meet the

"demanding standard of Kennedy." Beringer v. Sheahan, 934

F.2d 110, 111 n.1 (7th Cir.) cert. denied, 502 U.S. 1006, 112

S.Ct. 641, 116 L.Ed.2d (1991).

Unlike those cases, this Court can grant relief here. The

respondent has prevailed below on a question of constitutional

law, gaining a substantive remedy under the Double Jeopardy

Clause. Thus this case is not about a hypothetical application

of the Double Jeopardy Clause. Accordingly, it is worthy of

review by this Court.

Moreover, this will not be a "rare case," despite the

respondent’s claims to the contrary and the wishful thinking of

the Connecticut Supreme Court. The decision below gives a

criminal defendant every incentive to raise such double

jeopardy claims in the future. If Kennedy claims can be

brought without any foundation, common sense dictates that

such claims will be raised with increasing frequency.

Certiorari should be granted to review the ill-considered

opinion below before it is followed by other courts and

unnecessarily consumes finite legal resources.

ee

9

IV. THE DECISION BELOW IS AN APPROPRIATE

VEHICLE FOR ADDRESSING THE QUESTION

PRESENTED

The respondent’s protestations aside, the petitioner

respectfully submits that the decision below is a model vehicle

for reviewing the question presented: It is confined to federal

constitutional law; it implicates a split among the Circuits; it

follows the more expansive view of the Second Circuit; it

awarded the respondent substantive relief on that basis; and it

is a full and final judgment from Connecticut’s highest court.

Thus it provides this Court with the opportunity to correct the

erroneous decision below and to resolve the conflict among the

Circuit Courts.

10

CONCLUSION

For all the foregoing reasons, as well as those set out

in the petition, the petition for writ of certiorari should be

granted.

Respectfully submitted,

THE STATE OF CONNECTICUT

John M. Bailey

Chief State’s Attorney

Counsel of Record:

Jack W. Fischer

Assistant State’s Attorney

Appellate Bureau

Office of the Chief

State’s Attorney

January, 1996