State v. Avcollie

• Decision Date: 14 December 1982
• Citation: 188 Conn. 626,453 A.2d 418
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bernard AVCOLLIE.

Page 418

453 A.2d 418

188 Conn. 626

STATE of Connecticut v. Bernard AVCOLLIE.

Supreme Court of Connecticut.

Argued Oct. 7, 1982.

Decided Dec. 14, 1982.

[188 Conn. 627] John D. Jessep, Bridgeport, with whom, on the brief, was Theodore I. Koskoff, Bridgeport, for appellant (defendant).

Francis M. McDonald, Jr., State's Atty., with whom were Paul E. Murray and Catherine J. Capuano, Asst. State's Attys., for appellee (state).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

SPEZIALE, Chief Justice.

The defendant, Bernard Avcollie, 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 acquittal. The state, with permission of the trial court pursuant to General Statutes § 54-96, appealed the judgment to this court. After a review of the record, we concluded 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). ¹ 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, challenging (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 supplemental "Chip Smith" charge; and (5) the court's refusal to hear juror testimony regarding the verdict.

I SUFFICIENCY OF THE EVIDENCE

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, ² 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.

II THE GRAND JURY

Wanda Avcollie, the defendant's wife, was found floating in the family swimming pool at approximately 2 a.m. on October 30, 1975. At about 2:47 a.m. she was pronounced dead by the medical examiner of Waterbury. On November 21, 1975, a grand jury returned a true bill accusing the defendant of murdering Wanda Avcollie, in violation of General Statutes § 53a-54a.

The Avcollie 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 Connecticut constitution, ³ 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. ⁴ "The state's attorney lays before the court a bill 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 counsel 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).

A 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, 268 A.2d 667; nothing in our case law or the present statutes requires it. The defendant does not claim otherwise, but submits that improper, inadmissible evidence may have been heard by the grand jury because no attorney was present, and that he was prejudiced thereby.

This claim seems to assume that the grand jury functions like a trial before a petit jury, where evidentiary rules are required. The defendant misconceives the purpose 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 undisclosed 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. 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 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 S.Ct. 856, 66 L.Ed.2d 799 (1981); State v. Fasset, 16 Conn. 457, 472-73 (1844). Because grand juries are permitted to return a true bill based on inadmissible evidence, the absence of an attorney on the Avcollie panel is irrelevant to the validity of the indictment.

B 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 proceedings because he was an experienced criminal defense attorney. The court granted the request, and the defendant was given no notice of the investigation until the indictment was returned. The defendant contends that he had a right to attend the taking of evidence, and that the denial of this alleged right invalidates the indictment. We disagree.

There is no doubt that from the earliest times an accused has generally been allowed to attend the grand jury proceedings and to cross-examine witnesses. See, e.g., State v. Menillo, supra, 159 Conn. 274-75, 268 A.2d 667; State v. Wolcott, 21 Conn. 272, 279 (1851); Lung's case, 1 Conn. 428 (1815). Although in State v. Stallings, supra, 154 Conn. 282, 224 A.2d 718, 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. , 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 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 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." (Emphasis added.)

More recently, in State v. Menillo, supra, we clearly indicated that the practice of allowing the defendant to attend the grand jury 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 whereabouts are either known to the state or readily ascertainable, 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, 159 Conn. 278, 268 A.2d 667. In Menillo the defendant was excluded 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. ⁵

We find that the trial court abused its discretion in excluding the defendant from the grand jury proceedings merely because he is an attorney. The defendant, however, 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.

C 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 questioned the sheriff of New...