State v. Avcollie

• Decision Date: 24 July 1979
• Citation: 178 Conn. 450,423 A.2d 118
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bernard AVCOLLIE.

Page 118

423 A.2d 118

178 Conn. 450

STATE of Connecticut v.Bernard AVCOLLIE.

Supreme Court of Connecticut.

Argued Feb. 8, 1979.

Decided July 24, 1979.

Francis M. McDonald, Jr., State's Atty., with whom were Bradford J. Ward and Walter H. Scanlon, Asst. State's Attys., and, on the brief, Joseph A. Hill, Asst. State's Atty., for appellant(state).

Theodore I. Koskoff and John D. Jessup, Bridgeport, for appellee(defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LOISELLE, Associate Justice.

At approximately 2 a. m. on the morning of October 30, 1975, the defendant, Bernard Avcollie, and his neighbor, Carmine DiMaria, found the body of Avollie's wife, Wanda, floating in the family swimming pool.The two men pulled her from the pool.An unsuccessful attempt at mouth-to-mouth resuscitation was made.Mrs. Avcollie was pronounced dead by Dr. Joseph Vincitorio, the medical examiner of Waterbury, at about 2:47 a. m. He referred the matter for an autopsy.On November 21, 1975, a grand jury returned a true bill accusing Bernard Avcollie of intentionally murdering Wanda Avcollie in violation of § 53a-54a of the General Statutes.

The defendant elected a trial by jury.The jury returned a verdict of guilty, which was immediately set aside by the trial court, which stated that the defendant was acquitted.The state requested permission to appeal, which the trial court initially denied.On its own motion, the trial court reconsidered its decision and granted the state permission to appeal pursuant to General Statutes § 54-96.On appeal, the state raises three issues: (1) whether the trial court had the power to set aside the guilty verdict when the defendant had not made a motion for a directed verdict at the close of all the evidence; (2) whether the trial court properly set aside the verdict of guilty in the light of the evidence presented to the jury; and (3) whether the trial court properly excluded certain evidence.The defendant in his brief raises a fourth claim: whether this appeal violates his constitutional guarantee against double jeopardy.

I

Because of its significance, we will address the defendant's double jeopardy claim first.This court previously determined that there was no double jeopardy bar to the state's appeal in this case.State v. Avcollie, 174 Conn. 100, 384 A.2d 315(1977).The defendant, however, strenuously urges that we review our ruling on double jeopardy in that case in light of the five cases on the subject which were subsequently decided by the Supreme Court of the United States on June 14, 1978, and the overruling of a case claimed to have been relied upon as its authority by this court.

An examination of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1(1978);Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15(1978);Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24(1978);Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43(1978);andUnited States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65(1978); reaffirms our determination of the issue of double jeopardy which was reached previously in State v. Avcollie, supra.In that case, this court cited United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250(1975), as authority for its ruling.In United States v. Scott, supra, the principal holding in United States v. Jenkins, supra, was overruled.That holding, however, was not the one relied upon by this court.Actually, the quotation from United States v. Jenkins, supra, cited inState v. Avcollie, supra, was a reiteration of the rule enunciated in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232(1975), which was decided the same day as Jenkins.In Sanabria v. United States, supra, the principle stated in United States v. Wilson and United States v. Jenkins cited by this court as authority for its holding was reaffirmed.It was held in United States v. Wilson, supra, that when a case has been tried to a jury, the principle of double jeopardy does not prohibit an appeal by the prosecution providing that a retrial is not required in the event the prosecution is successful in its appeal.Thus, where a jury returns a verdict of guilty but the trial court thereafter renders a judgment of acquittal, an appeal is permitted and double jeopardy does not attach.None of the cases of the Supreme Court which were handed down since the ruling of this court is inconsistent with State v. Avcollie, supra.

II

The state's first contention is that the trial court was without power to set aside the verdict because the defendant did not make a motion for a directed verdict at the close of all the evidence as was required by Practice Book, 1963, § 255(now Practice Book, 1978, § 321).¹We disagree.The procedural setting was as follows: The defendant made a motion at the close of the state's case for a dismissal, a directed verdict and judgment of acquittal upon which the court reserved decision.After this, both sides offered more evidence.The defendant did not renew his motion for a directed verdict at the close of all the evidence.The case was submitted to the jury on the charge of murder.After deliberating for some time, the jurors sent a note to the trial judge indicating they stood eleven to one for conviction.The court then gave the "Chip Smith" charge to the jury as to their duty to respect the views of each other.At this time, over an objection by the state, the defendant made a motion for a directed verdict.The court again reserved decision on the motion.Shortly thereafter the jury returned a guilty verdict.After the foreman announced the verdict in open court, the defense counsel asked that the jury be excused, prior to the acceptance of the verdict.In the absence of the jury, the defendant renewed his previously made motions and moved under Practice Book, 1963, § 255 to set aside the verdict.The court ordered the verdict set aside and directed an acquittal.

On appeal the state asserts that the trial court had no authority or jurisdiction to hear and grant such a motion because Practice Book, 1963, § 255 which controlled at the time required a motion for a directed verdict at the close of all the evidence.Goldberger v. David Roberts Corporation, 139 Conn. 629, 633-34, 96 A.2d 309(1953).In Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 637, 179 A. 95, 97(1935), it was held that "(t)hetrial court has inherent power to set aside the verdict, even though no motion has been made."See alsoMunson v. Atwood, 108 Conn. 285, 288, 142 A. 737(1928);Brown v. New Haven Taxi Cab Co., 92 Conn. 252, 255-56, 102 A. 573(1917).Furthermore, it was held in Casey v. McFarlane Bros. Co., 83 Conn. 442, 76 A. 515(1910), that the trial court need not have a motion before it as a prerequisite to setting a verdict aside if one is eventually made.See alsoMaltbie, Conn.App.Proc. § 181.

The policy behind the requirement of § 255 was the giving of notice to the trial court.The defendant fulfilled this requirement by twice making a motion for a directed verdict.While we acknowledge that following established procedures is a necessary prerequisite for a just and fair trial, we do not believe that strict adherence to form has talismanic significance.The trial court's power to set aside a verdict is inherent; the Practice Book merely lays out an advisable manner of exercising it.The defendant, moreover, did make the requisite motion, although not in the correct sequence.Therefore, the trial court did have the power to grant it.

III

The central issue raised by the state is whether the trial court erred in setting aside the jury's verdict in light of the evidence adduced at trial.It is the function of the jury to consider evidence, draw logical deductions and make reasonable inferences from facts proven, that is, to decide guilt or innocence.State v. Hicks, 169 Conn. 581, 585, 363 A.2d 1081(1975);State v. Williams, 169 Conn. 322, 336, 363 A.2d 72(1975);State v. Benton, 161 Conn. 404, 410, 288 A.2d 411(1971).This power, however, is not absolute.As noted above, the court has an inherent power to set verdicts aside.Maltbie, Conn.App.Proc. § 181.

The court serves a supervisory function vis-a-vis the jury in this situation: "In passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict.The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly.A juror who did not do this would be remiss in his duty.The trial judge in considering the verdict must do the same, or fail in the discharge of that function which the law has laid upon him; and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict."Howe v. Raymond, 74 Conn. 68, 72, 49 A. 854, 855(1901).In Roma v. Thames River Specialties Co., 90 Conn. 18, 19-20, 96 A. 169(1915), this court enumerated several of the reasons for setting aside a verdict: "It was the court's duty to set aside the verdict if its manifest injustice was so plain and palpable as to justify the suspicion that the jury or some of its members were influenced by prejudice, corruption or partiality.Fell v. Hancock Mutual Life Ins. Co., 76 Conn. 494, 496, 57 A. 175;Burr v. Harty, 75 Conn. 127, 129, 52 A. 724.And this is true even if the evidence was conflicting, and there was direct evidence in favor of the ... (party), who prevailed with...