State v. Avcollie

• Decision Date: 20 December 1977
• Citation: 384 A.2d 315,174 Conn. 100
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bernard AVCOLLIE.

Page 315

384 A.2d 315

174 Conn. 100

STATE of Connecticut v. Bernard AVCOLLIE.

Supreme Court of Connecticut.

Argued Nov. 1, 1977.

Decided Dec. 20, 1977.

Theodore I. Koskoff and John D. Jessup, Bridgeport, in support of the motion.

Francis M. McDonald, Jr., State's Atty., in opposition.

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

PER CURIAM.

This opinion is the result of collaboration on the part of all members of the court to an unusual degree. See State v. Hayes, 127 Conn. 543, 549, 18 A.2d 895. The defendant moves to dismiss the state's appeal challenging the court's action in setting aside the jury's verdict of guilty and rendering a judgment of acquittal. The pertinent facts of the case are as follows.

On July 20, 1977, the foreman of a jury of twelve announced in open court that a verdict had been reached. After calling the roll of the jury, the clerk, following established procedures, asked, "Is Bernard Avcollie guilty of the crime of murder, in violation of § 53a-54a of the Connecticut General Statutes, or not guilty?" to which the foreman responded, "He is guilty."

At this point, the defendant's counsel asked that the jury be requested to retire, prior to acceptance of the verdict. After the court had excused the jury, the defense renewed several pending motions including a motion under Practice Book § 255 that the verdict be set aside, that an order for a judgment of dismissal be entered, and that the defendant be discharged from custody. The court responded, expressing its intention to set aside the verdict, whereupon the state requested permission to appeal to the Supreme Court:

"Mr. McDonald: I am asking for permission to take this matter to the state's Supreme Court.

The Court: I will rule on that at the proper time.

Mr. McDonald: I would like to ask for a ruling now.

The Court: The motion is denied.

Mr. McDonald: Then you are not giving me permission to take an appeal to the state's Supreme Court?

The Court: Bring in the jury, sheriff."

Upon the jury's return to the courtroom, the court announced: "I am setting aside the verdict of guilty and acquitting the defendant, under the rules, under the prerogatives vested in me as a judge of this court." The jury were discharged, and, in response to a request by the defendant's counsel that the accused be discharged from custody and his bond released, the court replied, "He may be discharged." When the state's attorney excepted, the court explained, "There is no fear that he is going to flee the jurisdiction. The bond may be released."

On July 22, 1977, the court heard argument on the state's motion to take an appeal. ¹ Counsel for the defendant appeared with the defendant to argue against the motion, but stated, "We are not here presenting our argument in the case of State of Connecticut v. Bernard Avcollie because that case does not exist any more by virtue of what already happened. We are here as a courtesy to the court." The court stated that it had called the hearing because the transcripts of the July 20 hearing revealed an ambiguity in the discourse between the court and the state's attorney. The court, then, proceeded to deny the state permission to appeal. "I have given a great deal of thought to allowing you to appeal this case and I have no reason to not allow you to do it but you will do it by way of a writ of error, which is your right under the statute."

Finally, again on the trial court's motion, another hearing was held on August 1, 1977, for "a rehearing on the state's request for permission to appeal." On August 3, the court "rescinded" its previous denial of permission to appeal and granted the requested permission.

The state has appealed to this court, and the defendant now seeks to have the appeal dismissed.

The issues to be determined by the motion to dismiss the appeal are:

1. Whether a valid jury verdict of guilty exists in this case.

2. Whether the court's July 20, 1977, "discharge" of the defendant terminated the court's in personam jurisdiction, thereby rendering the subsequent hearings invalid.

3. Whether, by virtue of the trial court's July 22 "denial" of permission to appeal, this court has subject-matter jurisdiction under General Statutes § 54-96.

The defendant claims that, since the jury's verdict of guilty was never formally "accepted" by the court, a valid guilty verdict never existed in this case. On the basis of this premise, it is argued that any action taken by this court unfavorable to the trial court's action claimed by the defendant to constitute a judgment of acquittal would necessitate another trial, in violation of the double jeopardy clause of the United States constitution.

To substantiate its claim that no valid jury verdict exists, the defendant relies heavily upon State v. DiPietro, 120 Conn. 537, 538-39, 181 A. 716, 717, in which the court delineates the "settled practice in this (s)tate" for the establishment of a valid jury verdict: "(T)he course of proceedings upon the return of the jury into court in a criminal case is substantially as follows: The court being in actual session, the clerk calls the roll of the jury and asks if they have agreed upon their verdict. If the foreman answers that they have, the clerk then asks whether they find the accused guilty or not guilty. The foreman answers 'guilty' or 'not guilty' as the case may be. The clerk then says to the jury: 'Gentlemen of the Jury, harken to your verdict as accepted and ordered recorded by the court. You upon your oaths do say that the prisoner at the bar is guilty (or not guilty) so say you, Mr. Foreman, and so, gentleman, say you all.' The foreman and members of the jury: 'We do.' " The apparent purpose of this procedure is to ensure that the court, counsel and the jurors have a common understanding of the verdict, that it is the verdict to which each juror has assented, and that ample opportunity is afforded to cure any misunderstanding. Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 106; State v. DiPietro, supra. While it is true, as the DiPietro court recognizes (120 Conn. p. 539, 181 A. 717), that "(u)ntil a verdict is accepted by the court, it is not a verdict at all," it does not follow that a verdict is deficient if the process leading to acceptance does not precisely conform to the usual, accepted practice. ²

In the present case, the usual practice outlined in DiPietro was begun: the jury returned to the courtroom, in which both counsel and the defendant were present, and the judge asked whether they had reached a verdict; the jury foreman answered, "we have, Your Honor," and the clerk called the name and number of each juror, the juror rising in response; the clerk asked, again, if they had reached a verdict, and, again, the foreman answered, "Yes, we have"; the clerk asked the accused to stand and face the jury and the jury, having been reminded that they were sworn in, were asked, "What say you as to case number 12,468, State of Connecticut v. Bernard Avcollie. Is Bernard Avcollie guilty of the crime of murder, in violation of § 53a-54a of the Connecticut General Statutes, or not guilty?" to which the foreman responded, "He is guilty." At this juncture, the defense counsel intervened, asking that the court excuse the jury "before the verdict is accepted." In the absence of the jury during the following interaction among both counsel and the court, the court in response to the defendant's own motion expressed its intention to "set aside the verdict."

The defendant's motion to have the verdict set aside arose under § 255 of the Practice Book, which provides, in part: "After the acceptance of a verdict . . . a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside." (Emphasis added.) By interrupting the established procedure for acceptance of the verdict, the defendant effectively waived compliance with that procedure. By setting aside the verdict, the court impliedly accepted the jury's verdict of guilty, and this acceptance became final upon his subsequent announcement of his action to the jurors. ³ The procedure followed, while not in compliance with the preferred, established form commonly adhered to, provided adequate safeguards to ensure a common understanding of the verdict: the verdict was rendered in open court by the foreman in the presence of the entire jury, the court, and counsel. Further, the defendant makes no claim that the jury did not assent to the verdict as announced by their foreman, and adequate opportunity was afforded the jury to clarify any misunderstanding. Under these circumstances it cannot be said that a valid jury verdict of guilty, subsequently set aside by the court, does not exist in this case.

Since a valid verdict exists, no double jeopardy bar rises to preclude an appeal in this case. The state's appeal seeks a reversal of the court's action in setting aside the verdict. If error is found, no further fact finding, no additional trial, would be necessary, for the jury verdict would simply be reinstated. In a recent opinion, the United States Supreme Court stated: "When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Wilson, . . . (420 U.S. 332, 344-45, 352-53, 95 S.Ct. 1013, 43 L.Ed.2d 232). When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict. To be sure, the defendant would prefer that the Government not be permitted...