State v. Seravalli

• Decision Date: 08 February 1983
• Citation: 455 A.2d 852,189 Conn. 201
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John SERAVALLI, Jr. STATE of Connecticut v. Joseph SERAVALLI.

Page 852

455 A.2d 852

189 Conn. 201

STATE of Connecticut v. John SERAVALLI, Jr.

STATE of Connecticut v. Joseph SERAVALLI.

Supreme Court of Connecticut.

Argued Nov. 9, 1982.

Decided Feb. 8, 1983.

J. Daniel Sagarin, Milford, with whom, on the brief, were William Barnes and Nancy Sobocinski, Milford, for appellants (defendants).

Carl Schuman, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Mary Galvin, Asst. State's Atty., for appellee (state).

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

SPEZIALE, Chief Justice.

These appeals were brought following a mistrial granted by the trial court at the defendants' ¹ request when the jury before which they were tried on conspiracy to commit arson, arson, and larceny charges ² became deadlocked. The defendants' appeal raises only two substantial issues: ³ (1) that the evidence was insufficient to convict them on any of the charges; and (2) that the trial court's denial of their motion for judgment of acquittal placed the defendants twice in jeopardy in violation of the state and federal constitutions. ⁴

On October 7, 1980, this court granted the state's motion to dismiss the appeals "except as to the defendant[s'] double jeopardy claim." ⁵ Of the issues stated, only the double jeopardy issue was immediately appealable to this court. State v. Powell, 186 Conn. 547, 552-53, 442 A.2d 939, cert. denied sub nom Moeller v. Connecticut, --- U.S. ----", 103 S.Ct. 85, 74 L.Ed.2d 80 (1982); State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S.Ct. 423, 62 L.Ed.2d 320 (1979).

The double jeopardy aspect of the defendants' motions for acquittal before the trial court was that "[t]he first trial was so lengthy and expensive that to permit a second trial would be fundamentally unfair, unconsiderable [sic], and amount to the imposition of a punishment of itself." On appeal, following our dismissal of the appeal on the issues concerning sufficiency of the evidence, the defendants' original double jeopardy claim changed. The argument now presented by the defendants on appeal is that because there was insufficient evidence to convict, the double jeopardy clause bars a second trial of the defendants even though they requested the mistrial.

We recognize that this change in the argument by the defendants is an attempt to resurrect the appeal of the issues concerning sufficiency of the evidence in the guise of a double jeopardy claim; we will, nevertheless, address the appealability of the issue now raised by the defendants rather than rely solely on our previous ruling on the state's motion to dismiss.

Appeals are permitted only from final judgments. State v. Powell, supra, 186 Conn. at 550, 442 A.2d 939. "The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal appeals. State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938)." State v. Powell, supra, 186 Conn. at 551, 442 A.2d 939. "Adherence to this rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the effective and fair administration of the criminal law.' DiBella [v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962) ]." Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977), quoted in State v. Powell, supra, 186 Conn. at 551, 442 A.2d 939.

The appealable final judgment in a criminal case is ordinarily the imposition of sentence; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980); but we have held that certain presentence orders or actions by a trial court may be considered final for purposes of appeal "where the otherwise interlocutory ruling challenged on appeal cannot, if erroneous, later be remedied by suppression of the evidence or reversal of the conviction after trial." State v. Grotton, supra, 293, 429 A.2d 871; State v. Powell, supra, 186 Conn. at 553, 442 A.2d 939; see State v. Spendolini, 189 Conn. 92, 454 A.2d 720 (1983), and cases cited therein.

In Abney v. United States, supra, the United States Supreme Court permitted an appeal from the denial of a motion to dismiss the indictment which was based on a claim of double jeopardy. The court held that denial of the motion was a "collateral order" as defined in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and was a final decision under 28 U.S.C. § 1291, the federal appeal statute. In Cohen, a shareholder's derivative suit, the district court denied the defendant's pretrial motion to require the plaintiffs to post a security bond. The court of appeals reversed, and the United States Supreme Court ruled that the appellate court had jurisdiction over the appeal, stating: "This decision appears to fall into that small class [of cases] which finally determine claims of rights separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." (Emphasis added.) Cohen v. Beneficial Loan Corporation, supra, 337 U.S. at 546, 69 S.Ct. at 1225.

In Abney, the court applied the Cohen test above to the double jeopardy claim raised in that case, and found that it was collateral: "[T]he very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not [he] is guilty of the offense charged.... [T]he defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence.... Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him. [Citations omitted.] The elements of that claim are completely independent of his guilt or innocence." Abney v. United States, supra, 431 U.S. at 659-60, 97 S.Ct. at 2040. ⁶

The court in Abney realized that permitting interlocutory appeals of a claim of double jeopardy might lead to assertion of many new kinds of "double jeopardy" claims as a means of obtaining interlocutory review of noncollateral issues. The court therefore stressed the limited effect of its holding: The appealable issues, however labelled, "do not extend beyond the claim of former jeopardy and encompass other claims presented to, and rejected by, the district court in passing on the accused's motion to dismiss. Rather, such claims are appealable if, and only if, they too fall within Cohen's collateral-order exception to the final-judgment rule. Any other rule would encourage criminal defendants to seek review of, or assert, frivolous double jeopardy claims in order to bring more serious, but otherwise nonappealable questions to the attention of the courts of appeals prior to conviction and sentence." Abney v. United States, supra, 431 U.S. at 663, 97 S.Ct. at 2042. The court therefore held that Abney's challenge to the sufficiency of the indictment was not immediately appealable because "it goes to the very heart of the issues to be resolved at the upcoming trial." Id.

In the present case, the double jeopardy aspect of the defendants' motions for acquittal before the trial court was that "[t]he first trial was so lengthy and expensive that to permit a second trial would be fundamentally unfair, unconsiderable [sic], and amount to the imposition of a punishment of itself." This issue was neither briefed nor argued before us, and is therefore considered abandoned. State v. Nims, 180 Conn. 589, 590, 430 A.2d 1306 (1980). This is not, however, the double jeopardy claim presented on appeal.

As previously noted, on October 7, 1980, this court granted the state's motion to dismiss the appeals "except as to the defendant[s'] claim of double jeopardy," thereby dismissing the issues concerning sufficiency of the evidence. See footnote 5, supra. Following that dismissal, the defendants' original double jeopardy claim changed. The only double jeopardy claim now presented by the defendants on this appeal is that when a mistrial is ordered because of a deadlocked jury, the double jeopardy clause bars retrial where there was insufficient evidence at trial to sustain a guilty verdict even though the defendants requested the mistrial.

This claim clearly "goes to the very heart of the issues to be resolved in the upcoming trial." Abney v. United States, supra, 431 U.S. at 663, 97 S.Ct. at 2042. It cannot possibly be considered "collateral" to the action under Cohen and Abney. The Fourth Circuit Court of Appeals stated the true nature of this type of appeal in dismissing an interlocutory appeal identical to this one: "In an effort to bring his case within the scope of Abney, [the defendant] has attempted to frame a completely non-collateral issue--the sufficiency of the evidence to convict him (as he has yet to be convicted, this goes directly to the merits of his case)--in terms of double jeopardy.... In essence, he seeks to have an appellate court decide his guilt or innocence and to perform a function properly left to the trial judge, that is, determining the sufficiency of the evidence to send the case to the jury. Merely because he has chosen to characterize the issue as one of double jeopardy, however, does not require this court to review it ...." United States v. Ellis, 646 F.2d 132, 134 (4th Cir.1981).

We stress here that the only question before us is whether this appeal is to be permitted at this time. Unquestionably, the defendants have a right to challenge the sufficiency of the evidence in the first trial, if they are convicted after a second trial. United States v. Wilkinson, 601 F.2d 791 (5th Cir.1979). ⁷ 7] If the evidence is found to be insufficient on appeal, it is equally...