State v. Bellamy ( 2016 )

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STATE OF CONNECTICUT v. BRANDON
MONTRELL BELLAMY
(SC 19337)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued December 7, 2015—officially released October 25, 2016
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
James M. Ralls, assistant state’s attorney, and Laurie
N. Feldman, special deputy assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Kevin C. Doyle, former senior
assistant state’s attorney, for the appellee (state).
Opinion
ZARELLA, J. The defendant, Brandon Montrell Bel-
lamy, appeals from the judgment of the Appellate Court
affirming his conviction, rendered after a jury trial, of
two counts of murder in violation of General Statutes
§ 53a-54a (a), and one count each of assault in the first
degree in violation of General Statutes § 53a-59 (a) (5),
criminal possession of a pistol in violation of General
Statutes § 53a-217c (a), and carrying a pistol without
a permit in violation of General Statutes § 29-35. The
defendant claims that the Appellate Court incorrectly
determined that he waived his unpreserved jury instruc-
tion claim under the rule established in State v. Kitch-
ens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011).1 The
defendant further contends that the rule in Kitchens
should be overturned because it is confusing, unwork-
able, interferes with the trial court’s discretion to review
unpreserved claims and does not serve the interests of
justice.2 We conclude, following a careful review of the
record, that the Appellate Court correctly determined
that the defendant waived his unpreserved jury instruc-
tion claim. We also conclude that the rule in Kitchens
should not be overturned. Accordingly, we affirm the
judgment of the Appellate Court.
I
We begin with the defendant’s waiver claim. The
defendant contends that the trial court’s instruction on
identification witnesses was deficient because it did
not inform the jury that the certainty of a witness’ identi-
fication does not mean that the identification is accu-
rate, or that factors such as distance, lighting, a witness’
emotional state and the time between the crime and
the witness identification are also relevant in consider-
ing the accuracy of an identification. The state responds
that defense counsel indicated that he understood and
accepted the trial court’s proposed instruction, and,
therefore, the defendant’s claim is unreviewable under
the waiver rule in Kitchens. We agree with the state
that the defendant’s claim is unreviewable.3
The following facts and procedural history are rele-
vant to our resolution of this claim. On Thursday,
November 4, 2010, two days after commencement of the
evidentiary portion of the trial, the court gave counsel a
draft of the proposed jury instructions. The court also
notified counsel that, if they would like to make any
additional changes to the instructions, they should
inform the court by the following Monday, November
8, although counsel were free to file supplemental
instruction requests after that time in light of additional
evidence. The court added: ‘‘If there’s anything either
in the court’s language or an additional area that I would
call nonstandard that you want included, please let the
court know.’’ The court also stated that it expected jury
deliberations to begin on Tuesday, November 9. The
proposed instructions do not appear to have been
marked for identification or otherwise made part of
the record.
On Monday, November 8, following conclusion of the
evidence, the trial court stated for the record that it
was going to meet with counsel in chambers for ‘‘a legal
charging conference.’’ The court explained: ‘‘[I]t’s the
actual law the court is going to give tomorrow as it
relates to the charges themselves and any kind of law
that would apply to this case based on identification
witnesses, inconsistent testimony, etc., charges that
need to go to the jury in order to complete the record
of the case.’’ The court added that it would try to incor-
porate any specific requests by counsel into the pro-
posed charge. The court also indicated that it had given
counsel copies of the court’s proposed general and spe-
cific instructions. A brief recess followed, during which
the court consulted with counsel in chambers.
After the recess, the court described the proceeding
to follow as ‘‘our legal session for the charging confer-
ence.’’ The court first observed that it had given counsel
for both sides copies of the proposed general instruc-
tions. It then described certain changes unrelated to
the identification issue that it intended to make in
response to requests by counsel, adding that it also
intended to change the instructions to read that it was
the state’s burden to prove beyond a reasonable doubt
that the defendant had committed the charged crimes,
to which defense counsel specifically assented. The
court next discussed the proposed identification
instruction, explaining: ‘‘With respect to identification,
I did give an identification section in the charge which
outlines on page 14 that the jur[ors] must be satisfied in
making the identification, including some of the factors
they can consider in this evidence. However, I’m going
to expand that language to include . . . language to
the effect that, in every criminal prosecution, it is the
state’s responsibility to show that the defendant is the
person who committed the offense, and if they are not
satisfied of that evidence, then they cannot find the
defendant guilty of any particular offense. I’m going to
highlight that because, obviously, that is an issue in this
case.’’ The court also indicated its willingness to change
language in the proposed instructions referring to the
possession of a weapon, as suggested by defense coun-
sel. After the court asked if there were any other excep-
tions, defense counsel responded: ‘‘Not at this time,
Your Honor.’’ The court replied: ‘‘Okay, I appreciate
your coming back up, and, with that, because the charge
is now complete, we can go right to the jury . . . .
Okay?’’ Defense counsel simply responded: ‘‘Thank you,
Your Honor.’’ The court then adjourned for the day.
When the proceeding resumed the next morning, the
court initially noted that it had conducted an on-the-
record charging conference the previous day, during
which it had made certain changes to the jury instruc-
tions suggested by counsel. The court also clarified that
the jury instructions would contain no reference to
lesser included offenses, and both counsel agreed that
this was appropriate. After the court asked if there
was ‘‘[a]nything else’’ of concern the parties wanted to
discuss before the jury was brought into the courtroom,
counsel responded: ‘‘Nothing from [the] defense, Your
Honor.’’ The jury then returned to the courtroom, and
the court delivered its instructions.
The trial court’s jury instructions addressed the issue
of identification two different times. The court first
addressed the identification issue indirectly when it
instructed the jury regarding how to decide whether to
believe a witness’ testimony.4 It later addressed the
issue directly in its charge on identification.5 Defense
counsel took no exception to either instruction.
Defense counsel instead stated that he did not object
to the instructions, agreed with the state regarding a
clarification relating to the elements in the weapons
counts, and asked the court to eliminate the instruction
on proof of the felony conviction. The court agreed to
the suggested changes and asked if there was anything
else defense counsel wanted to discuss, to which coun-
sel replied in the negative.
The defendant was convicted on all counts. On Janu-
ary 7, 2011, the court held a sentencing hearing. At the
hearing, defense counsel initially argued in support of
three postverdict motions the defendant had filed to
arrest judgment, for judgment of acquittal, and for a
new trial. In his argument, counsel stated that all three
motions were based principally on the allegedly rapid
speed with which the jury instructions had been deliv-
ered. Counsel specifically argued: ‘‘[I]t’s not the content
of the jury instructions. The jury instruction says we
went through the charging conference. We conferred.
We agreed on them. I didn’t take any exceptions. The
issue I had, Your Honor, was the speed with [which]
the court went through the instructions to the jury.’’
Counsel indicated that the speed of the instructions
was important because it affected the jurors’ ability
to follow them. The court denied all three motions,
reasoning that ‘‘the jur[ors] did have the benefit of the
actual transcript of the court’s instructions going in
with them in their deliberative process.’’
Thereafter, the defendant appealed from the judg-
ment of conviction.6 The defendant claimed, among
other things, that ‘‘the [jury] instructions on the issue
of [the accuracy of an] identification were prejudicially
erroneous and deprived him of [his constitutional right
to] a fair trial . . . .’’ State v. Bellamy, 149 Conn. App.
665, 669, 89 A.3d 927 (2014). The defendant specifically
contended that the instructions departed from the stan-
dard criminal jury instructions promulgated by the Judi-
cial Branch because they failed to inform the jury that
the certainty of a witness’ identification does not equate
with its accuracy. Id. He also contended that the instruc-
tions had failed to list other relevant factors relating to
the accuracy of a witness identification, such as dis-
tance, lighting, the emotional state of the witness, and
the time between the crime and the identification. Id.
The defendant, who apparently had filed no request to
charge, conceded that this claim was unpreserved and
sought review under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989).7 State v. Bellamy, supra,
671. The Appellate Court noted, however, that a claim
that has been waived at trial fails to satisfy the third
prong of Golding.8 Id., 671–72. The court thus deter-
mined that, in order to decide whether the defendant’s
claim was reviewable under Golding, it was required,
under Kitchens, to first consider whether the claim had
been waived at trial. Id. Applying the waiver rule in
Kitchens, the court ultimately concluded that the claim
had been waived. Id., 673–74. The court summarized:
‘‘[D]efense counsel, having been provided with a draft
copy of the jury instructions and a meaningful opportu-
nity to review them and to alert the court to any poten-
tial issues, declined to object in any way to the portion
concerning identification, and affirmatively expressed
his satisfaction with the content of the instructions.
Under these circumstances, the defendant has waived
his claim of instructional error, and, accordingly, it fails
under the third prong of Golding.’’ Id.; see also footnote
3 of this opinion.
On appeal to this court, the defendant contends that
the Appellate Court incorrectly concluded that he
waived his claim of instructional error. We disagree. In
Kitchens, we stated: ‘‘[W]hen the trial court provides
counsel with a copy of the proposed jury instructions,
allows a meaningful opportunity for their review, solic-
its comments from counsel regarding changes or modi-
fications and counsel affirmatively accepts the instruc-
tions proposed or given, the defendant may be deemed
to have knowledge of any potential flaws therein and
to have waived implicitly the constitutional right to
challenge the instructions on direct appeal. Such a
determination by the reviewing court must be based
on a close examination of the record and the particular
facts and circumstances of each case.’’9 State v. Kitch-
ens, supra, 299 Conn. 482–83.
In the present case, all of the foregoing criteria were
satisfied. The trial court gave both defense counsel and
the state a copy of its proposed jury instructions four
days before the charging conference. Two of the four
days fell on a weekend, thus providing counsel with
even more time to review the instructions. The court
also solicited comments from counsel regarding modifi-
cations to the instructions during the in-chambers
charging conference, during the proceedings in open
court directly after the charging conference and on the
following day immediately before instructing the jury.
In addition, when the court discussed portions of the
identification instruction on the record, defense coun-
sel expressed no dissatisfaction with the instruction,
although he commented on several other instructions.
Counsel thus indicated that he had read and understood
the instructions in their entirety and took no issue with
any part, including the instruction on identification.
Finally, defense counsel explicitly conceded during the
sentencing hearing that he had agreed with the sub-
stance of the jury instructions before they were given
and that his only objection was to the speed with which
they had been delivered by the court. Accordingly, we
conclude that the defendant implicitly waived his jury
instruction claim under the rule articulated in Kitchens.
Notwithstanding these compelling facts, the defen-
dant claims that he did not agree to the trial court’s
identification instruction. He contends that, in the
absence of a marked copy of the jury instructions, there
is no evidence in the record that defense counsel
reviewed and approved of the precise language of the
identification instruction. He also notes that, although
the trial court stated during the on-the-record charging
conference that it intended to broaden and expand on
the language in the proposed instruction, there is no
evidence that defense counsel had an opportunity to
review and approve of the revised instruction before
it was given. He thus argues that defense counsel’s
statement at the sentencing hearing that he agreed with
the content of the jury instructions ‘‘cannot be recon-
ciled’’ with the state’s burden of establishing waiver by
showing that counsel reviewed the precise language
being challenged on appeal, especially in light of coun-
sel’s claim at the hearing regarding the speedy delivery
of the instructions. We disagree.
We first observe that the waiver rule in Kitchens does
not require that a copy of the proposed jury instructions
be marked as an exhibit. It only requires evidence that
the trial court gave the parties a ‘‘copy of the proposed
jury instructions’’ and that the reviewing court’s deter-
mination of implied waiver ‘‘be based on a close exami-
nation of the record and the particular facts and
circumstances of each case.’’ State v. Kitchens, supra,
299 Conn. 482–83. Thus, in most instances, a combina-
tion of facts and circumstances rather than any single
fact will support a finding of waiver. Moreover, a
marked copy would not necessarily have provided the
desired clarity as to what defense counsel waived
because courts often make last minute changes to the
jury instructions in on-the-record consultations with
counsel immediately prior to their delivery, when there
may be no time to memorialize the changes in a written
document. Finally, to the extent the defendant suggests
that the lack of a marked copy in the present case
prevented the reviewing court from knowing that the
trial court’s draft included an instruction on eyewitness
identification, we know that the draft included such an
instruction because the trial court referred to it during
the on-the-record charging conference when it stated
that it ‘‘did give an identification [instruction] in the
charge,’’ and the court even referred to the page con-
taining the part of the instruction it wanted to amend.
Accordingly, although a marked copy of the proposed
jury instructions may be helpful in determining whether
defense counsel assented to an instruction that is chal-
lenged on appeal, it is not a requirement under Kitchens
if the record contains other persuasive evidence that
defense counsel had knowledge of, and assented to,
the instructions that were given.
Second, insofar as the defendant claims that he had
no notice of the content of the final charge on witness
identification because the court stated that it intended
to ‘‘expand’’ that instruction, the defendant takes the
trial court’s language out of context and ignores the
explanation that followed. What the court actually
stated was that it intended to expand the language on
page 14 of the proposed instructions ‘‘to include . . .
language to the effect that, in every criminal prosecu-
tion, it is the state’s responsibility to show that the
defendant is the person who committed the offense,
and if [the jurors] are not satisfied of that evidence, then
they cannot find the defendant guilty of any particular
offense. I’m going to highlight that because, obviously,
that is an issue in this case.’’ Accordingly, the trial court
explained precisely how it intended to expand the lan-
guage in the identification instruction and referred to
the actual page on which the new language would be
added. Furthermore, and as the Appellate Court noted,
the only other change to the instructions even indirectly
relating to witness identification was the court’s addi-
tion of language instructing that the state had the bur-
den to prove identity beyond a reasonable doubt; State
v. Bellamy, supra, 149 Conn. App. 672 n.3; which has
no relevance to the defendant’s claim on appeal.
As for the defendant’s suggestion that defense coun-
sel indicated during the sentencing hearing that he had
trouble following the jury charge because of its speedy
delivery, the record shows that counsel’s reference to
a speedy delivery at the hearing had nothing to do
with his ability to understand, and thus object to, the
instructions that were given. The record instead shows
that counsel was referring to the jurors’ possible inabil-
ity to understand the instructions because of their
speedy delivery. The defendant thus misconstrues
counsel’s argument at the sentencing hearing.
Finally, the cases on which the defendant relies are
inapposite because their facts are distinguishable from
the facts in the present case. See State v. Davis, 311
Conn. 468, 478, 88 A.3d 445 (2014) (finding no waiver
because trial court’s stated intention to deliver charge
proposed by state ‘‘ ‘in essence, maybe not exactly,’ ’’
which defense counsel had not read, failed to provide
adequate notice to defendant, and, therefore, ‘‘the trial
court’s failure to provide the defendant with the precise
content of the proposed jury instructions deprived him
of a meaningful opportunity to review the charge’’);
State v. Devalda, 306 Conn. 494, 505 n.15, 50 A.3d 882
(2012) (finding no waiver because record failed to indi-
cate ‘‘when or whether the defendant received a written
copy of the proposed jury instructions’’); State v.
Brown, 299 Conn. 640, 659, 11 A.3d 663 (2011) (finding
no waiver because record failed to indicate whether
copy of final instructions given to counsel included
correct charge or charge actually delivered to jury);
State v. Collins, 299 Conn. 567, 597, 598, 10 A.3d 1005
(finding no waiver because record contained ‘‘no indica-
tion’’ that trial court gave defendant advance copy of
proposed jury instruction and, therefore, reviewing
court could not ‘‘say with certainty whether the defen-
dant had a meaningful opportunity to review the written
instruction itself and to challenge any objectionable
language therein’’), cert. denied, U.S. , 132 S.
Ct. 314, 181 L. Ed. 2d 193 (2011). Although it is true
that, in one case, State v. Coleman, 304 Conn. 161, 170
n.3, 174, 37 A.3d 713 (2012), this court observed in
dictum10 that discussing the specific language of a chal-
lenged jury instruction, in the absence in the record of
a rough draft or the original completed draft, supported
a finding that the defendant in that case had been given
a meaningful opportunity to review the charge, this
statement was not intended as a general rule that spe-
cific reference to the language at issue is a prerequisite
to a finding of waiver if there is other evidence that the
defendant has been given a meaningful opportunity to
review the instructions. We therefore reject the defen-
dant’s contention that he did not waive his jury instruc-
tion claim in the present case.
II
We next consider whether this court should overturn
the waiver rule in Kitchens. The defendant contends
that unpreserved claims of instructional error that sat-
isfy the first two prongs of Golding should be consid-
ered by reviewing courts unless the error was induced
or the claim was expressly waived by the challenging
party. He specifically contends that Kitchens created an
irrebuttable and incorrect presumption that all defense
counsel who have had a meaningful opportunity to
review draft jury instructions have knowledge of any
and all constitutional errors contained therein, and that,
through inaction or a silent record, all counsel are
deemed under Kitchens to have waived a client’s consti-
tutional right to proper jury instructions for tactical
reasons.11 He further contends that this presumption is
unrealistic because competent counsel who is aware
of constitutional error never would waive a client’s right
to proper jury instructions, and the better explanation
for counsel’s silence is ‘‘[o]versight in the heat of battle,’’
when time constraints do not allow for a lengthy review
of the instructions. Accordingly, the defendant does not
characterize counsel’s silence or inaction with respect
to an alleged instructional error as waiver, but as forfei-
ture, which federal courts define as ‘‘the failure to make
the timely assertion of a right’’; United States v. Olano,
507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508
(1993); accord State v. Kitchens, supra, 299 Conn. 474;
see also State v. Kitchens, supra, 475 n.20; and review
under the plain error doctrine. See State v. Kitchens,
supra, 475 n.20. The defendant adds that the Kitchens
rule improperly circumvents the policy expressed in
Golding that unpreserved constitutional error should
be reviewed and improperly shifts the responsibility for
ensuring that the jury instructions are correct from the
trial court and the state, where it belongs, to the defense.
The state responds that the defendant misunder-
stands the meaning of the Kitchens waiver rule. The
state argues that, when the trial court asks counsel
to make an informed and binding judgment regarding
whether to accept the jury instructions and counsel
acquiesces, counsel waives the procedural right to
object to the instructions on any of the multitude of
possible grounds that counsel might presently be aware
of or later perceive. Thus, ‘‘procedural waiver of the
opportunity to object, by a professional who knew what
was at stake, foreclosed any number of possible chal-
lenges that counsel might or might not have consid-
ered.’’ The state further argues that this understanding
of waiver comports with Connecticut’s uncontroverted
waiver doctrine and that overturning the rule would
invalidate an entire body of waiver jurisprudence in
this jurisdiction. The state maintains that the waiver
rule in Kitchens is good policy because it gives parties
an incentive to participate in the formulation of the jury
instructions in a timely manner when errors can be
corrected, thus promoting fair trials. We agree with
the state.
We begin by noting that this court adopted the waiver
rule in Kitchens in order to clarify the law and to encour-
age the formation of accurate jury instructions consis-
tent with the principles of fundamental fairness and the
finality of judgments. To accomplish these objectives,
the court explained that implied waiver may be found
only after the trial court provides counsel with a written
copy of the proposed instructions, allows counsel a
meaningful opportunity to review them and solicits
counsel’s comments regarding proposed changes or
modifications. State v. Kitchens, supra, 299 Conn. 482–
83. Counsel, in turn, must affirmatively accept by words
or conduct the instructions proposed or given. See id.,
483–84. If the record contains evidence that any of these
steps has been omitted, implied waiver may not be
found. Thus, the rule ‘‘would not allow waiver to be
presumed from a silent record or from defense coun-
sel’s mere acquiescence in, or failure to object to, the
jury instructions. A silent record, by definition, would
not satisfy the [rule] because there would be no factual
basis from which the court could infer a waiver, and
mere acquiescence or failure to object, without more,
would provide an insufficient basis for a finding of
waiver because there would be no evidence from which
the court could determine whether counsel had been
given a meaningful opportunity to review, comment
on and express satisfaction with the instructions, or
whether counsel had, in fact, expressed such satisfac-
tion before or after the instructions were given.’’12 Id.,
483 n.23. We further explained that our rules of practice
provide counsel with many opportunities to participate
in the crafting of jury instructions, including the filing
of a written request to charge and the request for an
on-the-record charging conference. Id., 488, 493–94.
Accordingly, the waiver rule in Kitchens, which repre-
sents a synthesis of our precedent and our rules of
practice, provides counsel with the means necessary
to apprise the court of his views and to ensure the
accuracy of the jury instructions. The rule also serves
as notice to counsel of the responsibility to participate
in formulating the jury instructions and of the poten-
tially adverse consequences that may follow should
counsel fail to act.
In light of these considerations, we emphatically dis-
agree with the notion that the implied waiver rule is
fundamentally unfair because it is based on the pre-
sumption that counsel was aware of, and rejected as a
matter of trial strategy, every conceivable challenge to
the jury instructions. The rule is not unfair because, as
the state correctly observed and we stated in Kitchens,
what is waived is the procedural right to appeal any
defect in the jury instructions. See id., 483, 494. Even
before our decision in Kitchens, Connecticut law pro-
vided that approval of the jury instructions by trial
counsel acts as a waiver of all potential jury instruction
claims and not merely claims arising from jury instruc-
tions that defense counsel specifically discussed on the
record at trial. For example, in State v. Holness, 289
Conn. 535, 543–45, 958 A.2d 754 (2008), we specifically
rejected the defendant’s argument that he did not know-
ingly and intelligently waive his jury instruction claim
and concluded that the defendant had waived every
potential constitutional claim relating to the trial court’s
limiting instruction on hearsay evidence when defense
counsel, in the exercise of his professional judgment,
accepted the limiting instruction as satisfactory, even
though counsel later argued he had been unaware that
he could have raised a claim that the defendant’s rights
were violated under Crawford v. Washington, 541 U.S.
36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We
explained that the state was not required to establish
that defense counsel was aware of a possible constitu-
tional claim in the factual scenario presented, but,
rather, the trial court was entitled to presume that, in
our adversary system, counsel was familiar with the
relevant constitutional principles and had acted compe-
tently in determining that the limiting instruction was
adequate to safeguard the defendant’s sixth amendment
rights. State v. Holness, supra, 544. We similarly con-
cluded in State v. Brewer, 283 Conn. 352, 360–61, 927
A.2d 825 (2007), decided a little more than one year
before Holness, that defense counsel’s expressed satis-
faction with a jury instruction on a lesser included
offense constituted a waiver of the defendant’s right to
claim constitutional error on a ground not specifically
discussed at trial.13 Thus, application of the waiver rule
in Kitchens to a defendant’s subsequent procedural
right to challenge the jury instructions on any substan-
tive ground is consistent with the principle articulated
in prior cases that the waiver of a procedural right
constitutes the waiver of all of the claims within it.
Justice Palmer, writing for the court, explained in
Holness that ‘‘[t]o conclude otherwise would require
the trial court to canvass defense counsel with respect
to counsel’s understanding of the relevant constitu-
tional principles before accepting counsel’s agreement
on how to proceed . . . [and] there is nothing in our
criminal law that supports such a requirement.’’14 State
v. Holness, supra, 289 Conn. 544. That is because a
comprehensive canvass of this nature not only would
be difficult if not impossible to conduct, but would not
promote this court’s interest in judicial economy, given
the time required to determine whether counsel was
aware of every conceivable constitutional principle
under which an instructional flaw might be identified.
Our reasoning in Kitchens is also consistent with
Connecticut and federal law governing a criminal defen-
dant’s waiver of other basic constitutional rights. These
include the right to a jury trial; see, e.g., State v. Rizzo,
303 Conn. 71, 102–103, 31 A.3d 1094 (2011) (waiver of
right to jury trial does not require canvass of various
potential advantages of having jury decide case, and
general knowledge of right being waived is sufficient),
cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d
64 (2012); the right to a probable cause hearing; see,
e.g., State v. Wilkins, 159 Conn. App. 443, 454, 123 A.3d
92 (waiver of right to probable cause hearing is valid
‘‘even when the trial court’s waiver canvass does not
exhaustively detail the procedural rights waived’’), cert.
denied, 319 Conn. 935, 125 A.3d 208 (2015); the right
to enter a guilty plea; see, e.g., United States v. Ruiz,
536 U.S. 622, 630, 122 S. Ct. 2450, 153 L. Ed. 2d 586
(2002) (guilty plea is knowing and final waiver, ‘‘despite
various forms of misapprehension under which a defen-
dant might labor’’); United States v. Broce, 488 U.S. 563,
573, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989) (‘‘[o]ur
decisions have not suggested that conscious waiver is
necessary with respect to each potential defense relin-
quished by a plea of guilty’’); Edwards v. United States,
256 F.2d 707, 709 (D.C. Cir.) (‘‘a layman should expect
a plea of guilty to be treated as . . . a waiver of all
defenses known and unknown’’), cert. denied, 358 U.S.
847, 79 S. Ct. 74, 3 L. Ed. 2d 82 (1958); Mainiero v.
Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990) (‘‘[I]n
order for a plea to be knowingly, voluntarily and intelli-
gently made, a trial court is required to advise a defen-
dant that his plea operates as a waiver of three
fundamental constitutional rights—jury trial, confron-
tation and self-incrimination. . . . There is no require-
ment, however, that the defendant be advised of every
possible consequence of such a plea.’’ [Citation omitted;
internal quotation marks omitted.]); State v. Gilnite,
202 Conn. 369, 374, 383, 521 A.2d 547 (1987) (‘‘an uncon-
ditional nolo contendere plea, when intelligently and
voluntarily made, operates as a waiver of all nonjuris-
dictional defects and bars later challenges to pretrial
proceedings,’’ but ‘‘[t]here is no requirement . . . that
the defendant be advised of every possible consequence
of such a plea’’); the right to competent counsel; see,
e.g., Faretta v. California, 422 U.S. 806, 836, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975) (court was not required
to assess whether pro se defendant knew how well he
had mastered intricacies of law in order to represent
himself because ‘‘his technical legal knowledge . . .
was not relevant to an assessment of his knowing exer-
cise of the right to defend himself’’); State v. D’Antonio,
274 Conn. 658, 711, 877 A.2d 696 (2005) (knowing and
voluntary waiver of right to counsel does not require
that defendant have ‘‘perfect comprehension of each
element of a criminal charge’’); and the right to raise
a double jeopardy claim. See, e.g., United States v.
Cordoba, 71 F.3d 1543, 1546 (10th Cir. 1995) (‘‘[D]ouble
jeopardy rights may be waived by agreement, even
where double jeopardy was not specifically referred to
by name in the plea agreement, when the substance of
the agreement is to allow for double prosecution. . . .
Conscious waiver is not necessary with respect to each
potential defense relinquished by a plea agreement.’’
[Citations omitted.]); State v. Price, 208 Conn. 387, 390,
544 A.2d 184 (1988) (constitutional immunity from dou-
ble jeopardy is not constitutional right whose waiver
must meet knowing, intelligent and voluntary standard
but personal right that will be considered waived if not
affirmatively pleaded at trial). In light of this over-
whelming precedent, it makes sense to apply the same
reasoning to trial counsel, who not only are presumed
to understand the law and to provide competent repre-
sentation, but are invited by our rules of practice to
participate in the formulation of the jury instructions.15
Accordingly, jury instruction waiver under Connecticut
law never has been limited to instructions specifically
discussed on the record at trial but has been understood
as a waiver of the right to appeal all conceivable jury
instruction claims that could have been raised in the
trial court.
In sum, overturning Kitchens on the ground that
waiver should be construed more narrowly would be
inconsistent with Holness, Brewer and other cases in
which we have indicated that counsel’s approval of the
jury instructions waives all potential claims of instruc-
tional error. We have observed, with respect to other
errors during trial proceedings, that ‘‘[w]hat this court
said over [100] years ago still remains true today. A
defendant must avail himself of the opportunity to make
an objection and if he does not avail himself of the
opportunity, he must be [held] to a waiver of the objec-
tion. Otherwise he would be permitted to lie by and
speculate upon the chances of a verdict, and that cannot
be tolerated.’’ (Internal quotation marks omitted.) State
v. Evans, 165 Conn. 61, 66, 327 A.2d 576 (1973), quoting
State v. Tuller, 34 Conn. 280, 295 (1867); see also Wain-
wright v. Sykes, 433 U.S. 72, 89, 97 S. Ct. 2497, 53 L.
Ed. 2d 594 (1977) (waiver rule discourages ‘‘ ‘sand-
bagging’ ’’ by taking chances on acquittal, with intent
to raise claims in habeas proceeding if gamble fails);
State v. Kurvin, 186 Conn. 555, 566, 442 A.2d 1327
(1982) (‘‘[p]ermitting [instructional] claims of error
which could have been raised at trial to be raised for
the first time on appeal encourages trial by ambuscade
and tends to transform criminal trials into games of
chance’’). We thus see no reason in the present case
to depart from our precedent and from our general
waiver doctrine by overturning the rule in Kitchens,
which is based on the same rationale articulated in
Holness and Connecticut’s other prior waiver cases.
The defendant nonetheless takes issue with all four
policy grounds on which the court in Kitchens relied
in concluding that the waiver rule is justified, including
(1) the presumption that counsel is competent, (2) the
rules of practice that provide for counsel’s participation
in the crafting of instructions, (3) the rules of fairness
that place responsibility with the trial court and counsel
to ensure that the instructions are correct, and (4) the
existence of habeas review as a potential safety net.
See State v. Kitchens, supra, 299 Conn. 486–89. We
address each ground in turn.
First, to the extent the defendant contends that the
Kitchens waiver rule presumes counsel is omniscient,
rather than competent, and that the rule does not allow
for consideration of possible distractions, fatigue, dis-
couragement or simple ignorance, the defendant misun-
derstands the rule, the meaning of competent counsel
and the ability of counsel to identify errors before the
instructions are given. As we previously discussed in
greater detail, waiver in the context of jury instruction
claims, jury trials, probable cause hearings, guilty pleas,
and claims of ineffective assistance of counsel and dou-
ble jeopardy does not contemplate knowledge by trial
counsel or the defendant of every conceivable claim
that might be raised on appeal. Trial counsel thus need
not be omniscient under the waiver rule in Kitchens in
order to provide a defendant with adequate represen-
tation.
Insofar as the defendant also suggests that the rule
will unfairly penalize defendants because of inadvertent
mistakes by counsel resulting from fatigue, distractions
or other factors relating to the rapid pace of a trial,
competent counsel do not defer consideration of jury
instructions until the last minute, thereby increasing the
possibility of committing inadvertent mistakes. Counsel
necessarily must consider what the state will be
required to prove and how the jury should be instructed
well before commencement of the trial proceedings in
order to prepare a defense. Thereafter, our rules of
practice provide counsel with multiple opportunities to
participate in the formulation of proper jury instruc-
tions based on counsel’s professional assessment of
what the jury needs to know to decide the case fairly.
Viewed in this light, the rule in Kitchens merely encour-
ages counsel to utilize these opportunities, thus enhanc-
ing the probability that the instructions will be accurate.
We therefore reject the defendant’s claim that the
waiver rule sets an unattainable standard that requires
more than competent counsel. In fact, the opposite is
true. As Justice Katz observed in her concurring opinion
in Kitchens, a review of Connecticut cases decided
between 2000 and 2010 indicates that ‘‘the number of
cases in which a defendant obtains reversal of his con-
viction on the basis of Golding review of instructional
errors is negligible’’; id., 523 (Katz, J., concurring); thus
demonstrating that, prior to Kitchens, counsel rarely
made major mistakes when assenting to jury instruc-
tions at trial and suggesting that this will continue to
be the case. In sum, instead of unfairly burdening coun-
sel or posing a difficult challenge, the waiver rule in
Kitchens provides the court, the state and trial counsel
with an additional procedural tool for ensuring that the
instructions are correct.16
The defendant next claims that, although the rules
of practice provide for counsel’s participation in the
formulation of jury instructions, the degree of participa-
tion necessary for waiver to be found never has been
clearly enunciated, thus creating confusion and no clear
pattern among cases decided after Kitchens for future
guidance. We disagree. The rules of practice, together
with the waiver rule in Kitchens, provide exceptionally
clear guidance as to how counsel may avoid waiver
and successfully preserve a jury instruction claim. For
example, the rules of practice provide that counsel may
file a written request to charge; Practice Book §§ 42-
16, 42-17 and 42-18; request an on-the-record charging
conference; Practice Book § 42-19; obtain a summary
of the substance of the proposed instructions at the
close of evidence; Practice Book § 42-19; discuss modi-
fication of the instructions for purposes of correction
or clarification; Practice Book § 42-24; and be given
notice and the opportunity to make suggestions when
the jury requests additional instructions following the
start of deliberations. Practice Book § 42-27. The speci-
ficity of these rules suggests that counsel who fail to
participate in formulating the jury instructions but have
been given a meaningful opportunity to review them
are on official notice that, unless they have objected
to a particular instruction or a portion thereof, they
have waived all future jury instruction claims. The rules
of practice therefore serve the twin goals of providing
the jury with accurate instructions and protecting the
courts from expending limited resources on the adjudi-
cation of collateral attacks on the verdict that otherwise
might have been avoided.
Finally, even if there may be no clear pattern among
the cases decided following Kitchens, the lack of such
a pattern is not because the rule itself has never been
clearly enunciated; rather, it is because reviewing
courts are required to determine whether the unique
facts and circumstances in any given case support a
finding of waiver. This is no different from the type of
‘‘facts and circumstances’’ analysis we conduct in other
contexts; State v. Davalloo, 320 Conn. 123, 144 n.15, 128
A.3d 492 (2016) (application of marital communications
privilege ‘‘necessarily depends on the facts and circum-
stances of a particular matter’’); see also Trusz v. UBS
Realty Investors, LLC, 319 Conn. 175, 214 n.26, 123
A.3d 1212 (2015) (future resolution of conflict between
employee’s and employer’s free speech rights under
General Statutes § 31-51q will be ‘‘in light of the particu-
lar facts and circumstances then presented’’ [internal
quotation marks omitted]); or from the ‘‘totality of the
circumstances’’ test the court conducts when assessing
the constitutionality of challenged out-of-court eyewit-
ness identifications; (internal quotation marks omitted)
State v. Marquez, 291 Conn. 122, 160, 967 A.2d 56, cert.
denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163
(2009); or the probable cause necessary for a war-
rantless arrest based on an informant’s tip. State v.
Johnson, 286 Conn. 427, 437, 944 A.2d 297, cert. denied,
555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008).
Cases subject to these tests do not fall easily into pre-
dictable patterns because the facts and circumstances
in each case are necessarily unique.17
The defendant also claims that the rule in Kitchens
unfairly places the entire burden on defendants because
the defendant is the only party who suffers a penalty
when a reviewing court finds waiver. He adds that the
rule provides a disincentive for the state to identify
and correct errors when it knows that a review of any
potential error will be waived if it does not object to
the instructions, thus allowing the state to enjoy all of
the benefits and suffer none of the risks of its trial
strategy. The defendant further contends that the rule
improperly and unfairly shifts a portion of the decision
as to which unpreserved claims are adjudicated from
the court to the state. These arguments are unper-
suasive.
First, they ignore the significant fact that only a defen-
dant is entitled to raise on appeal a claim that the jury
instructions were incorrect. This means that, if the
defendant is acquitted on the basis of instructions that
misstate an element of the crime, the state may not
appeal from the judgment on that ground but must
accept the acquittal, even if the evidence may have been
sufficient to establish the defendant’s guilt under the
proper instruction. See State v. Ledbetter, 240 Conn.
317, 323, 692 A.2d 713 (1997) (‘‘under most circum-
stances, the state may not appeal from a judgment of
acquittal, even when that judgment may have been the
result of a misconstruction of the law’’). Moreover, the
state has an ethical obligation to seek justice and to
bring to the court’s attention any inaccuracy or defi-
ciency in the jury instructions. The state thus has a
strong incentive to make sure that the jury instructions
are correct. Second, a finding of waiver opens the door
to a future habeas proceeding on which the state and
the court will be required to expend additional limited
resources that could have been devoted to other pend-
ing trials.18 Third, trial courts have a duty ‘‘to give jury
instructions that are accurate in law, adapted to the
issues and adequate to guide the jury in reaching a
correct verdict’’; State v. Butler, 207 Conn. 619, 636,
543 A.2d 270 (1988); and no judge, as a matter of pride
and reputation, wants a reviewing court to deem the
jury charge legally incorrect or inadequate to guide the
jury. As a consequence, the waiver rule serves as an
incentive for all those involved in the trial proceedings,
including the state and the presiding judge, to make
certain that the jury instructions are accurate,19 a con-
clusion with which the defendant indirectly agrees in
his argument on judicial economy.20
As for the defendant’s argument that the Kitchens
waiver rule allows the state to exercise undue influence
over whether unpreserved constitutional claims are
reviewed under Golding because the state may decide
against making a waiver claim in some cases for tactical
reasons, this argument is highly speculative. The defen-
dant does not suggest what that tactical advantage
might be, and we perceive none. By failing to make a
waiver claim, the state must then defend against the
claim and risk a decision by the reviewing court in favor
of the defendant. Even if the defendant’s argument had
some degree of validity, the defense must bear its share
of responsibility for making certain that the jury instruc-
tions are correct. Thus, when defense counsel fails to
take advantage of the many opportunities available dur-
ing the trial proceedings to obtain accurate instructions,
the defendant cannot blame the state for deciding in
some cases and not in others to assert a claim of waiver.
Regardless of any uncertainty, however, defendants
should expect the state to assert a waiver claim in any
case in which such a claim may be validly raised and
have no reason to complain if the state fails to do so.
With respect to habeas review, the defendant argues
that review typically takes place several years after
the resolution of a direct appeal, prevents the speedy
correction of obvious constitutional errors and puts
further pressure on an already overburdened habeas
docket. We agree that habeas review delays the resolu-
tion of an instructional claim that is deemed waived on
direct appeal. We nonetheless consider habeas review
good policy because only in the habeas court may a
record be developed sufficient to determine whether
counsel waived the claim for constitutionally accept-
able strategic reasons. See State v. Kitchens, supra, 299
Conn. 497. As we explained in Kitchens: ‘‘[A] habeas
proceeding provides a superior forum for the review
of a claim of ineffective assistance because it provides
the opportunity for an evidentiary hearing in which
the attorney whose conduct is challenged may testify
regarding the reasons he did not contest the instruction
at trial. . . . A habeas proceeding thus enables the
court to determine whether counsel’s failure to take
exception or otherwise to participate in formulating
the instructions was due to mere incompetence or to
counsel’s trial strategy, which would not be possible in
a direct appeal in which there is no possibility of an
evidentiary hearing. An aggrieved party is thus not with-
out recourse in the event that the court deems a claim of
instructional impropriety waived on appeal.’’ (Citation
omitted.) Id., 496–97. In other words, the factual record
on direct appeal is insufficient to determine whether
counsel was making a strategic decision or whether his
failure to object to the instruction was an oversight.
Kitchens provides a perfect example of the value of
habeas review. On direct appeal, this court determined
that the defendant had waived his unpreserved claim
of instructional error. Id., 500. The defendant then filed
a habeas petition, in which he argued that his trial
counsel rendered ineffective assistance, in part for fail-
ing to object to the jury instructions on intent that he
challenged on direct appeal. See Kitchens v. Warden,
Superior Court, judicial district of Tolland, Docket No.
TSR-CV-11-4003979-S (September 17, 2014), aff’d sub
nom. Kitchens v. Commissioner of Correction, 167
Conn. App. 851, 143 A.3d 1208 (2016). The habeas court
concluded, however, that the defendant’s trial counsel
did not act improperly when he failed to object because
it was part of his trial strategy. Id. Counsel testified
that his theory of defense was that the defendant had
done nothing wrong, that the victim was injured by
accident and that some of the claimed events on the
night in question did not occur. Id. Counsel therefore
focused at trial on weaknesses in the victim’s testimony
and her lack of credibility instead of on the intent
instructions, which counsel testified had ‘‘ ‘no impact’ ’’
on his theory of defense. Id. He also told the habeas
court that he had no concerns about the instructions,
which the trial court had indicated were pattern instruc-
tions, in view of the law and theory under which he
was litigating the case. See id. Thus, this court’s determi-
nation in Kitchens that the defendant implicitly waived
his claim of instructional error on intent was vindicated
by trial counsel’s testimony during the habeas proceed-
ing that he had no problem with the jury instructions.21
The concurring justices in Kitchens, on the other hand,
would have reviewed the defendant’s claim regarding
the contested jury instruction without the benefit of
the knowledge gained at the habeas proceeding that
counsel had made a strategic choice to accept the
instructions that were given.22 See State v. Kitchens,
supra, 299 Conn. 526 (Katz, J., concurring); id., 551
(Palmer, J., concurring).
We finally disagree with the defendant’s argument
that the court in Kitchens mislabeled forfeiture as
waiver and that this court should follow federal waiver
law, which provides that, in cases that do not involve
invited or induced error, waiver occurs only when the
challenged instruction is discussed on the record and
defense counsel stipulates or specifically approves of
the instruction by words or other conduct. See, e.g.,
United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir.
2009) (claim of instructional error was waived because,
‘‘[f]aced with the parties’ incompatible positions regard-
ing the proposed definition of unlawfulness, the [D]is-
trict [C]ourt proposed a third option,’’ and defendant,
having been ‘‘[p]resented with this option . . . indi-
cated that the instruction was satisfactory’’); United
States v. Sanders, 520 F.3d 699, 702 (7th Cir. 2008)
(claim of instructional error was waived because
defense counsel expressly stated that she preferred
challenged aiding and abetting instruction over alterna-
tive instruction). This is similar to the argument made
by Justice Katz in her concurrence in Kitchens. State
v. Kitchens, supra, 299 Conn. 510–15, 525 (Katz, J.,
concurring). We remain unpersuaded by this argument
for three reasons.
First, waiver under Kitchens, which requires that
counsel affirmatively express satisfaction with the
instructions proposed or given, is consistent with our
precedent on waiver and inconsistent with this court’s
understanding of forfeiture as ‘‘the failure to make the
timely assertion of a right . . . .’’ (Internal quotation
marks omitted.) State v. Davis, supra, 311 Conn. 495;
accord Mozell v. Commissioner of Correction, 291
Conn. 62, 71, 967 A.2d 41 (2009).
Second, the defendant’s claim that Connecticut
should follow federal waiver law overlooks the fact that
federal law is not monolithic and that some federal
courts in recent years have adopted a view of waiver
similar to that of Kitchens. For example, the Eleventh
Circuit Court of Appeals has concluded repeatedly dur-
ing the past fifteen years that defendants have waived
jury instruction claims by indicating to the trial court
that the instructions were acceptable even in the
absence of an on-the-record discussion of the precise
instruction challenged on appeal. See United States v.
Carter, 776 F.3d 1309, 1323 (11th Cir. 2015) (declining
to review claim of instructional error with respect to
certain counts of indictment because counsel made only
one objection regarding jury instructions on those
counts, which was sustained, and, therefore, defendant
waived right to appeal any other previously unchal-
lenged aspect of jury instructions concerning those
counts); United States v. Silvestri, 409 F.3d 1311, 1337
(11th Cir.) (‘‘[w]hen a party responds to a court’s pro-
posed jury instructions with the words ‘the instruction
is acceptable to us,’ such action constitutes invited
error,’’ and, therefore, defendant affirmatively waived
right to challenge instruction when his counsel told
court that jury instructions ‘‘ ‘covered the bases’ ’’), cert.
denied, 546 U.S. 1048, 126 S. Ct. 772, 163 L. Ed. 2d 598
(2005); United States v. Fulford, 267 F.3d 1241, 1247
(11th Cir. 2001) (having stated through counsel that
court’s proposed supplemental instruction in response
to jury question ‘‘ ‘is acceptable to us,’ ’’ defendant
‘‘waived his right to appeal that instruction’’). Courts
in the First and Second Circuits also have found waiver
under similar facts. See United States v. Hansen, 434
F.3d 92, 101 (1st Cir.) (defense counsel not only failed
to object to court’s omission of proposed instruction,
but also affirmatively stated ‘‘ ‘I am content’ ’’ after court
instructed jury, and, therefore, claim of improper jury
instruction was waived on appeal), cert. denied, 549
U.S. 894, 127 S. Ct. 203, 166 L. Ed. 2d 164 (2006); Beastie
Boys v. Monster Energy Co., 66 F. Supp. 3d 424, 451
(S.D.N.Y. 2014) (‘‘At the charge conference, the [c]ourt
invited counsel ‘to comment on each page [of the draft
jury instructions] on which you have an issue.’ . . .
Although [the defendant] raised other issues . . . it did
not object to the proposed instructions . . . . To the
extent [the defendant’s] present argument implicitly
challenges the jury instructions given at trial, it is
waived.’’ [Citations omitted.]). Accordingly, the defen-
dant’s portrayal of the rule in Kitchens as contrary
to federal waiver law fails to acknowledge that some
federal courts have begun to adopt a broader view as
to the facts required to support a finding of an
implied waiver.
Third, and even more significant, the defendant’s
argument overlooks the fact that federal waiver law
is inconsistent with our jurisprudence, thus making a
comparison of federal and Connecticut law extremely
difficult, if not impossible. Although Connecticut and
federal law both distinguish between forfeiture and
waiver on the ground that ‘‘forfeiture is the failure to
make the timely assertion of a right [whereas] waiver
is the intentional relinquishment or abandonment of a
known right’’; (internal quotation marks omitted)
United States v. Olano, supra, 507 U.S. 733; accord
Mozell v. Commissioner of Correction, supra, 291 Conn.
71; the practical consequences of this distinction are
different under Connecticut and federal law.
Federal review of unpreserved trial errors is governed
by rule 52 (b) of the Federal Rules of Criminal Proce-
dure, which provides that ‘‘[a] plain error that affects
substantial rights may be considered even though it
was not brought to the court’s attention.’’23 Rule 52 (b),
however, is permissive rather than mandatory. United
States v. Olano, supra, 507 U.S. 735. ‘‘If the forfeited
error is ‘plain’ and ‘affect[s] substantial rights,’ the
[reviewing] court . . . has authority to order correc-
tion . . . but is not required to do so.’’ Id. Thus, ‘‘[t]he
standard of ‘plain error’ . . . goes only to the issue of
reviewability and not to the issue of whether a reversal
is warranted. . . . [A]n error unobjected to at trial may
be so plain as to warrant review under [r]ule 52 (b);
yet the error may be harmless and, therefore, not justify
a reversal.’’ United States v. Wilson, 690 F.2d 1267, 1274
(9th Cir. 1982), cert. denied, 464 U.S. 867, 104 S. Ct.
205, 78 L. Ed. 2d 178 (1983). The exception to rule 52
(b) is when there has been a waiver of the unpreserved
claim. United States v. Olano, supra, 732–33. A finding
of waiver requires evidence that the defendant know-
ingly and voluntarily approved of the disputed instruc-
tion after an on-the-record discussion of the instruc-
tion during the trial proceedings; see, e.g., United States
v. Conner, 583 F.3d 1011, 1026 (7th Cir. 2009); United
States v. Polouizzi, supra, 564 F.3d 1153; or very clear
evidence that the failure to object was due to tactical
considerations. See, e.g., United States v. Cooper, 243
F.3d 411, 416 (7th Cir.), cert. denied, 534 U.S. 825, 122
S. Ct. 64, 151 L. Ed. 2d 31 (2001).
In contrast, Connecticut waiver law is construed
more broadly than federal waiver law, and plain error
review more strictly. An unpreserved constitutional
claim that has not been waived under Kitchens may
be afforded Golding review but is not automatically
afforded plain error review, as in the federal courts.
That is because the plain error doctrine in Connecticut,
‘‘codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts [only] to rectify errors
committed at trial that, although unpreserved, are of
such monumental proportion that they threaten to
erode our system of justice and work a serious and
manifest injustice on the aggrieved party. [T]he plain
error doctrine . . . is not . . . a rule of reviewability.
It is a rule of reversibility. That is, it is a doctrine that
this court invokes in order to rectify a trial court ruling
that, although either not properly preserved or never
raised at all in the trial court, nonetheless requires rever-
sal of the trial court’s judgment, for reasons of policy.
. . . In addition, the plain error doctrine is reserved
for truly extraordinary situations [in which] the exis-
tence of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial
proceedings. . . . Plain error is a doctrine that should
be invoked sparingly. . . . Implicit in this very
demanding standard is the notion . . . that invocation
of the plain error doctrine is reserved for occasions
requiring the reversal of the judgment under review.
. . . [Thus, an appellant] cannot prevail under [the
plain error doctrine] . . . unless he demonstrates that
the claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Citations omitted; internal quotation marks
omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d
11 (2009).
In sum, federal law generally, but not always, limits
waiver in jury instruction cases to a small number of
cases in which the disputed instruction has been dis-
cussed on the record at trial or in which there is clear
evidence in the record that the instruction was accepted
by defense counsel for tactical reasons. Virtually all
other jury instruction claims are considered forfeited
and are subject only to plain error review. Although
plain error may be found in some cases, a remedy is
not mandated but, rather, is granted at the discretion
of the reviewing court upon a showing that the error was
clear and affected the defendant’s substantial rights. In
Connecticut, however, the system for reviewing unpre-
served constitutional claims is more complicated.
Unpreserved claims that have not been waived are not
automatically reviewed under the plain error doctrine
because the plain error doctrine in Connecticut, unlike
under federal law, is one of reversibility rather than
reviewability. In other words, plain error is reserved
for the very few cases in which the alleged error is so
extraordinary that automatic reversal is required, there
being no need for a discretionary determination by the
court regarding the imposition of a remedy. Conse-
quently, most forfeited claims of constitutional dimen-
sion in Connecticut are reviewed under Golding if they
have not been waived. Given these differences, the
defendant’s comparison of forfeited claims under state
law with forfeited claims under federal law that are
afforded plain error review is inappropriate because it
presumes that plain error review is the same in the
state and federal systems. It is not. We therefore reject
the defendant’s comparison of state and federal law on
waiver and forfeiture as misleading and irrelevant.
We instead agree with the state that the rule in Kitch-
ens improves the process of constructing fair and bal-
anced jury instructions because it provides incentives
to the parties and the court to ensure that the instruc-
tions are accurate. In contrast, allowing appellate
review of any unpreserved jury instruction claim of
constitutional magnitude under Golding gives appellate
counsel unbridled freedom to raise a multiplicity of jury
instruction claims that trial counsel waived for tactical
reasons, as was the case in Kitchens. Finally, the defen-
dant never explains why an express waiver is not sub-
ject to many of the same deficiencies attributed to an
implicit waiver, such as the failure of counsel to per-
ceive a defect in a particular instruction, even though
counsel may have suggested or specifically approved
of the instruction during an on-the-record charging con-
ference. We therefore conclude that the implied waiver
rule this court adopted in Kitchens should not be over-
turned.
The concurring justices disagree with the Kitchens
waiver rule on the ground that it is too expansive and
upsets the balance achieved under Golding. Chief Jus-
tice Rogers, who embraces an approach to waiver simi-
lar to the federal approach, is specifically concerned
that habeas review is not an effective and equivalent
substitute for direct appellate review of novel constitu-
tional claims because it involves substantial delay and
provides an inhospitable framework for resolving such
claims. She also contends that the waiver rule has
spawned an entirely new area of jurisprudence
addressing whether the requirements for waiver have
been met, and fears that a claim of instructional error
deemed waived under Kitchens will be raised anew in
a habeas proceeding. We disagree.
With respect to her first concern, Chief Justice Rogers
overlooks our express determination in this case to
‘‘leave the merits and a full discussion of this argument
for another day, when such a claim is presented to this
court on direct appeal.’’ Footnote 22 of this opinion.
As for her contention that the waiver rule in Kitchens
has created an entirely new area of jurisprudence, there
is no evidence to support this claim. Kitchens is only
one in a long line of cases over the course of several
decades in which Connecticut courts have considered
implied waiver in the context of jury instruction claims.
See State v. Kitchens, supra, 299 Conn. 470–72 (citing
more than fifteen years of precedent addressing implied
waiver of jury instruction claims). Thus, clarification
of Connecticut’s waiver law in Kitchens has not
resulted, nor will it result, in an entirely new area of
jurisprudence. Reviewing courts always have been
required to examine the specific facts and circum-
stances of each case to determine whether waiver
occurred. The only difference between past and future
waiver cases is that the rule is more specific under
Kitchens with respect to jury instructions because it
incorporates the requirements of the rules of practice.
It is therefore unlikely that courts will spend more time
addressing waiver claims in the post-Kitchens era.
Rather, courts are likely to spend less time reviewing
such claims because Kitchens narrowed the concept
of waiver by specifying the conditions under which
waiver may be found and precluding waiver solely on
the ground that counsel generally agreed with the pro-
posed instructions. This will potentially result in more
accurate jury instructions and fewer waiver claims for
reviewing courts to consider. Indeed, Chief Justice Rog-
ers concedes that the rule in Kitchens has resulted in a
reduction in the number of direct appeals substantively
addressing claims of instructional error. Not surpris-
ingly, an examination of habeas cases decided in the
post-Kitchens era also reveals that very few defendants
have filed petitions alleging ineffective assistance of
trial counsel on the ground that counsel implicitly
waived a jury instruction claim under Kitchens. See,
e.g., Kitchens v. Warden, supra, Superior Court, Docket
No. TSR-CV-11-4003979-S; Bharrat v. Commissioner of
Correction, Superior Court, judicial district of Tolland,
Docket No. TSR-CV-12-4004615-S (August 27, 2014),
appeal dismissed, 167 Conn. App. 158, 143 A.3d 1106
(2016). Moreover, the petitions in those cases also con-
tained claims of error unrelated to Kitchens. Chief Jus-
tice Rogers’ concern that Kitchens will result in an
entirely new area of jurisprudence and a greater work-
load for Connecticut courts is thus unwarranted.
Finally, to the extent Chief Justice Rogers prefers
the federal approach to determining whether a jury
instruction claim has been waived, we point to the
imbalance that would result from attempting to com-
bine federal and state waiver law. Although federal
waiver law permits the review of a greater number
of claims than would be permissible under state law
because more federal claims are deemed forfeited, and
thus reviewable, than would be deemed reviewable
under Kitchens, the ultimate remedy under the federal
plain error doctrine is more difficult to obtain than
the remedy available under Golding that Chief Justice
Rogers recommends. That is because the federal rem-
edy for plain error is discretionary, whereas the remedy
under Golding is automatic reversal of the judgment if
the four-pronged test of Golding is satisfied. Accord-
ingly, permitting Connecticut courts to review a greater
number of claims by following federal forfeiture law in
the absence of a state remedy comparable to the strin-
gent federal plain error remedy for determining whether
claims succeed opens the door to the abuses that Gold-
ing review was intended to discourage, such as trial
by ambuscade. See, e.g., Moye v. Commissioner of Cor-
rection, 316 Conn. 779, 784–85, 114 A.3d 925 (2015).
Adoption of the federal standard on forfeiture to deter-
mine whether jury instruction claims may be reviewed,
as Chief Justice Rogers suggests, also would result in
two different waiver standards for determining whether
unpreserved claims may be reviewed, one standard for
reviewing jury instruction claims and another standard
for reviewing other unpreserved claims, which would
lead to confusion and unnecessary inconsistency in our
waiver law.
We turn next to Justice Palmer’s concurring opinion,
in which he also argues that the waiver rule in Kitchens
should be overturned. We reject his lengthy analysis in
all respects because, among other things, it is based in
part on the construction of a false dichotomy between
the reasoning in Kitchens and the present case, and on
an incorrect understanding of how the court in Kitchens
used the term ‘‘acquiescence’’ when discussing the
state’s claims and Connecticut’s prior waiver law. We
also reject Justice Palmer’s approach to waiver, which
is far more extreme than the federal approach and, to
our knowledge, has not been adopted by any other
jurisdiction. Indeed, the approach he suggests would
have the effect of virtually eliminating Connecticut’s
implied waiver doctrine in the context of jury instruc-
tion claims. We address each point in turn.
Justice Palmer initially contends that the implied
waiver rule in Kitchens was predicated on the legal
fiction, or presumption, ‘‘that a defense counsel who
reviews and then acquiesces in the trial court’s pro-
posed instructions has considered and declined to raise
every potential objection to every part of the instruc-
tions’’ but that we have ‘‘disavowed’’ this rationale and
now justify the rule on the ground that ‘‘defense coun-
sel, upon reviewing the trial court’s proposed jury
charge, knowingly and voluntarily waives her client’s
procedural right to later challenge those instructions
on appeal.’’ This is simply untrue. There is no difference
in the reasoning articulated in Kitchens and the pre-
sent case.
Justice Palmer constructs a false dichotomy lacking
any basis in fact. The court in Kitchens repeatedly
explained, as we do in the present case, that waiver
involves the ‘‘intentional relinquishment or abandon-
ment of a known right or privilege’’; (internal quotation
marks omitted) State v. Kitchens, supra, 299 Conn. 469;
accord id., 474; and that, ‘‘among the rights that may
be waived by the action of counsel in a criminal pro-
ceeding is the right of a defendant to proper jury instruc-
tions.’’ Id., 467. The court in Kitchens also described the
state’s argument as whether the defense had ‘‘waived or
forfeited the right to challenge [the jury instructions]
on appeal’’; id., 473; ultimately concluding that, if the
criteria for the Kitchens waiver rule are satisfied, ‘‘the
defendant may be deemed to have knowledge of any
potential flaws [in the jury instructions] and to have
waived implicitly the constitutional right to challenge
the instructions on direct appeal.’’ Id., 483. Thereafter,
the court in Kitchens similarly acknowledged that
‘‘implied waiver, as alleged in [that] case, arises from an
inference that the defendant knowingly and voluntarily
relinquished the right in question’’; (emphasis omitted)
id.; and that competent counsel is presumed, ‘‘when
determining whether a defendant’s waiver of a constitu-
tional right or statutory privilege has been knowing and
intelligent.’’ Id., 489. Insofar as the court in Kitchens
also stated in a footnote that counsel’s acceptance of
the jury instructions following sufficient notice of their
content supports an inference that counsel had knowl-
edge of all potential constitutional defects contained
therein; id., 487 n.25; that statement was intended to
explain in part why waiver constitutes a knowing and
voluntary relinquishment of the right to appeal a jury
instruction claim. Accordingly, there is no basis for
Justice Palmer’s argument that our reasoning in the
present case differs on this essential point from the
reasoning in Kitchens.
Justice Palmer also argues that the court in Kitchens
failed to provide clear guidance as to what constitutes
implied waiver, in part because the court used the term
‘‘acquiescence’’ in a ‘‘misleading and inconsistent man-
ner.’’ He contends that ‘‘Kitchens described as acquies-
cence everything from defense counsel’s sitting silently
by and failing to object to the court’s jury charge to
defense counsel’s expression of affirmative satisfaction
or agreement with the charge,’’ and that the result of
this inconsistency is confusion and a lack of under-
standing as to the type of conduct that may lead to a
finding of waiver. Justice Palmer also claims that the
court in Kitchens and the majority opinion in the pres-
ent case have indicated that ‘‘mere acquiescence’’ con-
stitutes waiver, which entails passive acceptance. This
is not the case.
Justice Palmer continues to misunderstand the rea-
soning in Kitchens and the present case. The court in
Kitchens did not use the term ‘‘acquiescence’’ when
articulating the modified waiver rule but described
implied waiver as requiring, among other things, coun-
sel’s ‘‘affirmative acceptance’’ of the instructions that
were given.24 State v. Kitchens, supra, 299 Conn. 484,
496; see also id., 482–83. The court in Kitchens also
expressly cautioned that ‘‘mere acquiescence’’ is not
sufficient to establish waiver.25 Id., 483 n.23. As we
explain in this opinion and in Kitchens, ‘‘mere acquies-
cence’’ is insufficient to establish waiver because a find-
ing of waiver requires that all of the facts and
circumstances be taken into account, including
‘‘whether counsel had been given a meaningful opportu-
nity to review, comment on and express satisfaction
with the instructions, [and] whether counsel had, in
fact, expressed such satisfaction before or after the
instructions were given.’’ Id. Justice Palmer’s fixation
on the court’s occasional use of the term ‘‘acquies-
cence’’ in Kitchens when describing the state’s argu-
ments and the decisions of other jurisdictions
discussing waiver claims, and his suggestion that Kitch-
ens intended waiver to be found only when there is
mere acquiescence with respect to the court’s proposed
instructions, is thus unjustified. To the extent Justice
Palmer’s concern may stem from the fact that neither
Kitchens nor this opinion precisely defines the meaning
of ‘‘affirmative acceptance,’’ we determined in Kitchens
that whether counsel has satisfied this requirement is
best left to the discretion of the reviewing court after
examining the record before it. Moreover, we are not
aware of any case in which a reviewing court has con-
strued ‘‘affirmative acceptance’’ as meaning passive
acquiescence. See, e.g., State v. Johnson, 316 Conn. 45,
53, 111 A.3d 436 (2015) (affirmative acceptance means
counsel must express satisfaction with instruction, not
merely acquiesce in it); State v. Webster, 308 Conn. 43,
63, 60 A.3d 259 (2013) (finding waiver in part because
court solicited comments from counsel several times
during and following charging conference, and counsel
ultimately affirmatively accepted instructions proposed
and given). In sum, nothing in Kitchens or this opinion
supports Justice Palmer’s suggestion that Kitchens
endorsed a definition of implied waiver that requires no
more than passive acceptance of the jury instructions
without actually agreeing to them, and his preoccupa-
tion with the court’s reference to ‘‘acquiescence’’ in
Kitchens when describing the state’s argument and how
other courts have understood waiver in the past is
irrelevant.
Justice Palmer also argues that Kitchens should be
overruled under the doctrine of stare decisis. We dis-
agree with this argument because we have concluded
that Kitchens was correctly decided. We thus need not
address this issue any further.
In explaining his own view as to when implied waiver
should be found, Justice Palmer resurrects his argu-
ment in Kitchens that ‘‘an unpreserved claim that
instructional error of constitutional magnitude has
occurred should be unreviewable under Golding only
when (1) defense counsel induced or invited the error,
or (2) it clearly can be inferred that counsel—or the
defendant—actually was aware of the alleged defect in
the instruction but chose for strategic or other reasons
not to object (true waiver).’’26 Given his critique of
Kitchens and his apparent willingness to accept the
concept of implied waiver, even though narrowly
drawn, this standard makes no sense for two reasons.
First, the unavailability of Golding review in cases
of induced or invited error is based on exactly the same
presumption, or ‘‘legal fiction,’’ Justice Palmer rejects
as ‘‘illogical,’’ ‘‘unfounded’’ and ‘‘implausible’’ in the con-
text of implied waiver under Kitchens. The presumption
is that the claim is unreviewable because the defendant
had knowledge of any potential flaws in the instructions
that were given but intentionally disregarded them for
strategic reasons. State v. Kitchens, supra, 299 Conn.
470 (‘‘[t]he rationale for declining to review jury instruc-
tion claims when the instructional error was induced
or the claim was implicitly waived is precisely the same:
[t]o allow [a] defendant to seek reversal [after] . . .
his trial strategy has failed would amount to allowing
him to [induce potentially harmful error and then] . . .
ambush the state [and the trial court] with that claim
on appeal’’ [internal quotation marks omitted]); accord
State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872
(2007); State v. Gibson, 270 Conn. 55, 67, 850 A.2d 1040
(2004); State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445
(2004). In neither circumstance is the record required
to show that the defendant was actually aware of the
specific instructional error that is claimed on appeal.
Accordingly, Justice Palmer’s unwillingness to allow
Golding review in cases of induced or invited error is
at odds with his willingness to allow Golding review
of claimed error that has been implicitly waived
under Kitchens.
Second, Justice Palmer’s definition of implied waiver,
which would limit waiver to cases in which ‘‘it clearly
can be inferred that counsel—or the defendant—actu-
ally was aware of the alleged defect in the instruction
but chose for strategic or other reasons not to object
(true waiver),’’ is so narrow that it abolishes, for all
intents and purposes, the implied waiver doctrine in
Connecticut in the context of jury instruction claims.
In Kitchens, the court responded to this same, now
recycled argument by observing that the concept of
implied waiver under Justice Palmer’s definition very
likely would be ‘‘eviscerate[d]’’ because ‘‘there appears
to be no way that counsel may clearly demonstrate such
knowledge except by expressly informing the court.’’27
State v. Kitchens, supra, 299 Conn. 485 n.25. It also
bears repeating that Justice Palmer was the author of
the majority opinion in State v. Holness, supra, 289
Conn. 535, in which the court concluded that the defen-
dant had waived his unpreserved jury instruction claim
when defense counsel expressed satisfaction with the
contested instruction because the state was not
required to establish that counsel was aware of the
potential constitutional flaw. See id., 543–44. Rather,
the court in Holness stated that the trial court was
entitled to presume that counsel was familiar with the
relevant constitutional principles and had acted compe-
tently in agreeing to the jury instruction challenged on
appeal. See id., 544. Justice Palmer’s present views thus
are inconsistent with the position he articulated as the
author of the majority opinion in Holness.
We conclude with the observation that Justice
Palmer, in his enthusiasm to overturn the waiver rule
in Kitchens, makes many other points that are either
unsupported or supported by irrelevant sources to
which he cites. For example, he declares that incarcer-
ated defendants will suffer unnecessarily under Kitch-
ens as a result of having to litigate their jury instruction
claims in habeas proceedings and proclaims that Juma
Lahai, the petitioner in Lahai v. Warden, Superior
Court, judicial district of Tolland, Docket No. TSR-CV-
09-4003028-S (May 7, 2012), ‘‘remained incarcerated for
a full year longer than was necessary to review and
vindicate his [Kitchens] claim.’’ Text accompanying
footnote 41 of Justice Palmer’s concurring opinion. A
quick check of the facts, however, reveals that Justice
Palmer is mistaken. In State v. Lahai, 128 Conn. App.
448, 18 A.3d 630, cert. denied, 301 Conn. 934, 23 A.3d
727 (2011), the Appellate Court rejected Lahai’s jury
instruction claim because the error was induced by
defense counsel, who specifically requested the instruc-
tion that was given. See id., 457. The court cited Kitch-
ens only for its passing reference to the doctrine of
induced error, and not for its clarification of the implied
waiver rule. See id. Thereafter, the habeas court noted
that both parties had conceded that the error was
induced when it concluded that the error was prejudi-
cial under the second prong of Strickland v. Washing-
ton, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). See Lahai v. Warden, supra. Accordingly, the
parties in Lahai did not rely on Kitchens, and Justice
Palmer’s citation to Lahai in describing the purportedly
deleterious effects of Kitchens is unsupported by the
history of that case.28
Justice Palmer makes a similar mistake when claim-
ing that the concept of waiver should be narrowly drawn
so as not to unduly limit Golding review. He cites State
v. Pond, 315 Conn. 451, 108 A.3d 1083 (2015), as a case
in which this court was able to clarify the law and
resolve a split of opinion in the Appellate Court after
‘‘the state argued unsuccessfully that the instructional
claims of the defendant . . . were waived under Kitch-
ens . . . .’’ Text accompanying footnote 28 of Justice
Palmer’s concurring opinion. The state, however, did
not argue in Pond that the claims were waived under
Kitchens. To the extent the Appellate Court in Pond
considered instructional error before the case was
appealed to this court, the issue was whether the defen-
dant had induced the instructional error, not whether
he had waived his claim of instructional error under
Kitchens. See State v. Pond, 138 Conn. App. 228, 238,
50 A.3d 950 (2012), aff’d, 315 Conn. 451, 108 A.3d 1083
(2015). Thus, Kitchens was cited only for its reference
to the doctrine of induced error. See id. In fact, the
Appellate Court specifically observed that ‘‘[t]he state
does not appear to rely on the waiver doctrine of [Kitch-
ens].’’29 Id., 238 n.7.
Justice Palmer further declares that, ‘‘with five years
now having passed since this court decided Kitchens,
time and experience have borne out my concerns, and
those of Justice Katz, that the majority’s reliance on
habeas proceedings as a panacea was seriously mis-
placed. When Kitchens was decided, we predicted that
the rule would increase rather than decrease the burden
on judicial resources because any time saved in
avoiding appellate review of instructional error would
be more than offset by the need for a full habeas trial
on the issue. In fact, of the six cases decided in the
year following this court’s decision in Kitchens in which
the Appellate Court found claims of instructional error
waived under Kitchens, four already have resulted in
habeas petitions related to the alleged instructional
error.30
‘‘When Kitchens was decided, we also warned that
habeas proceedings would only push back the inevita-
ble, as petitioners whose ineffective assistance of coun-
sel claims were denied on collateral review ultimately
would return to the Appellate Court for review of those
decisions. Sure enough, the first generation of post-
Kitchens habeas appeals is now coming home to roost.
See, e.g., Bharrat v. Commissioner of Correction, 167
Conn. App. 158, 143 A.3d 1106 (2016).’’ (Footnotes
altered.) Justice Palmer thus suggests an impending
flood of new habeas litigation based on Kitchens. We
nonetheless ask, what, exactly, is coming home to
roost?
Justice Palmer cites four habeas cases during the past
five years in which a Kitchens claim was purportedly
raised. Four cases in five years, however, can hardly
be regarded as an intolerable consequence of Kitchens.
Moreover, none of the cited cases is relevant because
the rule in Kitchens was either not raised or only one
of several issues raised by the petitioner. In Carrion v.
Warden, Superior Court, judicial district of Tolland,
Docket No. TSR-CV-11-4004163-S (December 15, 2015),
for example, the petitioner, Christopher Carrion,
asserted three claims of error, only one of which was
a claim of ineffective assistance based on instructional
impropriety.31 Furthermore, the habeas court in Car-
rion did not consider trial counsel’s conduct under the
performance prong (first prong) of Strickland. See id.;
see also Strickland v. Washington, supra, 466 U.S. 687.
This court previously had concluded, in a majority opin-
ion authored by Justice Palmer, that, even if it assumed,
without deciding, that Carrion’s claim of instructional
impropriety had not been implicitly waived under
Kitchens, the challenged instruction had not deprived
Carrion of a fair trial. State v. Carrion, 313 Conn. 823,
827, 100 A.3d 361 (2014). The habeas court in Carrion
thus disposed of the Kitchens claim in a single sentence,
noting this court’s conclusion that the instruction was
not harmful and stating that ‘‘the issue as to this jury
instruction is res judicata . . . .’’ (Emphasis omitted.)
Carrion v. Warden, supra. Carrion is now appealing
from the judgment denying his habeas petition to the
Appellate Court but has raised no jury instruction claim.
Carrion v. Commissioner of Correction, Connecticut
Appellate Court, Docket No. AC 38794 (appeal filed
January 15, 2016). Accordingly, there is no basis for
Justice Palmer’s conclusion that Carrion is the first of
many ‘‘post-Kitchens habeas appeals . . . coming
home to roost.’’ To the contrary, instructional error in
Carrion was only a minor part of Carrion’s ineffective
assistance of counsel claim and is not being litigated
in the appeal from the habeas court’s judgment.
As for the other three cases that Justice Palmer cites,
the court determined in Lahai v. Warden, supra, Supe-
rior Court, Docket No. TSR-CV-09-4003028-S, that the
instructional error had been induced; and no Kitchens
claim was raised in Myers v. Warden, Superior Court,
judicial district of Tolland, Docket No. TSR-CV-14-
4005938-S (withdrawn August 12, 2016), or in the habeas
proceeding and appeal that followed in Bharrat. See
generally Bharrat v. Commissioner of Correction,
supra, 167 Conn. App. 158; Bharrat v. Commissioner
of Correction, supra, Superior Court, Docket No. TSR-
CV-12-4004615-S. Consequently, Justice Palmer pro-
vides no reliable support for his claim that a large
amount of habeas litigation will be coming home to
roost in the post-Kitchens era.
Justice Palmer finally suggests, as he did in Kitchens,
that the waiver of a jury instruction claim under Kitch-
ens may be overcome if defense counsel informs the
trial court that he has not raised a constitutional chal-
lenge to the charge because he is unaware of any such
claim. See State v. Kitchens, supra, 299 Conn. 541
(Palmer, J., concurring). He also suggests that the
defense bar should test this theory. We reject these
suggestions not only for the reasons stated in Kitchens;
see id., 485 n.25; but for the additional reason that
such conduct would be inconsistent with our rules of
practice, which seek to encourage good faith participa-
tion by counsel in the formulation of jury instructions.
Qualified approval of the jury instructions, as Justice
Palmer suggests, also would effectively limit waiver in
this context to claims of induced or invited error.
The judgment of the Appellate Court is affirmed.
In this opinion EVELEIGH, ESPINOSA and ROB-
INSON, Js., concurred.
1
The court granted certification on the following issue: ‘‘Did the Appellate
Court properly determine that the defendant’s unpreserved instructional
claim had been waived under [Kitchens]?’’ State v. Bellamy, 312 Conn. 914,
93 A.3d 597 (2014).
2
On November 18, 2015, after oral argument had been scheduled, we
ordered the parties to file supplemental briefs on the following issue: ‘‘Should
this court overrule [Kitchens] and permit review of unpreserved claims
of instructional error that meet the reviewability requirements of State v.
Golding, 213 Conn. 233, 239–40 [567 A.2d 823] (1989), unless the error was
induced or the claim was expressly waived by the party raising the claim
on appeal?’’
3
Although we ordinarily would consider the defendant’s waiver claim
only after a determination that it was of constitutional magnitude under the
second prong of State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989),
the state acknowledged in its brief to this court that the issue of whether
the claim was constitutional was ‘‘briefed . . . but not addressed by the
Appellate Court.’’ The state further acknowledged that the grant of certifica-
tion to appeal to this court did not include consideration of the constitutional
issue. Accordingly, the state’s argument with respect to waiver, our analysis
of the defendant’s waiver claim and our reconsideration of the rule in
Kitchens are all based on a presumption that the defendant’s claim is of
constitutional magnitude, as that issue has not been raised or briefed in
this court.
4
The court initially charged that the jury, in deciding whether to believe
all, some or none of a witness’ testimony, should consider a number of
factors, including: (1) ‘‘Was the witness able to see, hear and know the
things about which the witness testified?’’ (2) ‘‘How well was the witness
able to recall and describe those things?’’ (3) ‘‘What was the witness’ manner
and demeanor while testifying?’’ (4) ‘‘Did the witness have any interest in
the outcome of this case or any bias or prejudice concerning any party or
any matter involved in the case?’’ (5) ‘‘How reasonable was the witness’
testimony considered in light of all of the evidence in the case?’’ (6) ‘‘Was
the witness’ testimony contradicted by what that witness has said or done
at another time or by the testimony of other witnesses or other evidence.’’
5
The court subsequently instructed: ‘‘Identity is an issue in every criminal
case. An element of each offense is the identity of the perpetrator. The state
must prove to you beyond a reasonable doubt that this defendant was the
individual who committed the crimes that the jury considers. Therefore, the
burden in this case is on the prosecution to prove beyond a reasonable
doubt not only that the crimes charge[d] were committed but also that the
defendant was the person who committed the crime[s]. If the state does
not prove the identity of the defendant as the perpetrator beyond a reason-
able doubt [with respect to] any of the offenses charged, you must find him
not guilty of the offense[s]. You must be satisfied beyond a reasonable doubt
of the accuracy of the identification of the defendant before you convict
him. It is your duty to recall and weigh and consider all of the evidence
relating to the identification of the defendant. You should consider the
opportunity the witness had to observe the defendant, the degree of certainty
of the identification made by the witness, whether the witness knew the
defendant before the identification [and] any other circumstances that you
think are relevant to the issue of identification of the defendant.’’
6
The defendant initially appealed to this court, which transferred the
appeal to the Appellate Court.
7
In Golding, we stated a defendant may prevail on an unpreserved claim
when: ‘‘(1) the record is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the violation of a fundamen-
tal right; (3) the alleged constitutional violation clearly exists and clearly
deprived the defendant of a fair trial; and (4) if subject to harmless error
analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’ (Footnote omitted.)
State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding by
eliminating word ‘‘clearly’’ before ‘‘exists’’ and ‘‘deprived’’).
8
‘‘A defendant in a criminal prosecution may waive one or more of his
or her fundamental rights. . . . [I]n the usual Golding situation, the defen-
dant raises a claim on appeal [that], while not preserved at trial, at least
was not waived at trial. . . . [A] constitutional claim that has been waived
does not satisfy the third prong of the Golding test because, in such circum-
stances, we simply cannot conclude that injustice [has been] done to either
party . . . or that the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial . . . .’’ (Citation omitted; internal
quotation marks omitted.) State v. Kitchens, supra, 299 Conn. 467.
9
The defendant repeatedly states that the court in Kitchens deemed a
lack of assertion of a right, or silence, to constitute a waiver. This is incorrect.
The court in Kitchens emphasized that waiver ‘‘involves the idea of assent’’;
(internal quotation marks omitted) State v. Kitchens, supra, 299 Conn. 469;
and that implied waiver occurs when counsel ‘‘affirmatively accepts the
instructions proposed or given . . . .’’ Id., 483. Accordingly, to the extent
the defendant equates the waiver rule articulated in Kitchens with forfeiture,
or ‘‘the failure to make the timely assertion of a right’’; (internal quotation
marks omitted) id., 474; he mischaracterizes the rule, just as Justice Katz
mischaracterized the rule in her concurring opinion in Kitchens. Id., 500–501
(Katz J., concurring) (stating that waiver rule improperly ‘‘lend[s] credence
to a wholly novel system of categorizing unpreserved trial errors under
which, essentially, a defendant will be deemed to have waived Golding
review of an instructional claim merely by participating in a charging
conference and failing to object to jury instructions proposed by the court
or the state’’ [emphasis added]).
10
There was no claim in Coleman that the defendant did not have a
meaningful opportunity to review the trial court’s jury instructions. See
State v. Coleman, supra, 304 Conn. 170 n.3.
11
In their supplemental briefs, both the defendant and the state ask this
court to take judicial notice of the appeal in State v. Herring, 323 Conn.
526, A.3d (2016), and to adopt the arguments made by the parties
and the amicus curiae in that case, in which the issue of whether the waiver
rule in Kitchens should be overturned is also raised.
12
To the extent the defendant argues that the court in Kitchens ‘‘deemed
a lack of assertion of a right, or silence, to be waiver,’’ or that Kitchens
‘‘presum[ed] waiver from inaction,’’ it misreads our holding in Kitchens.
13
In Brewer, the trial court instructed the jury that it must unanimously
find the defendant not guilty of the murder charge before it could consider
the lesser included offense of manslaughter, which the defendant later chal-
lenged on appeal. State v. Brewer, supra, 283 Conn. 353. There was no
evidence in the record, however, that defense counsel in Brewer supplied,
affirmatively requested or advocated for the specific unanimity language
that the defendant challenged on appeal, even though counsel had sought
the lesser included offense instruction. See id., 357 n.7. Thus, the court in
Brewer did not characterize defense counsel’s failure to preserve the claim
pertaining to the unanimity language as induced or invited error. Rather,
the court treated counsel’s failure to object to this language as a waiver
because counsel ‘‘specifically expressed his satisfaction with the [lesser
included offense] instruction when queried by the trial court.’’ Id., 361. We
add that, to the extent the court in State v. Ebron, 292 Conn. 656, 681–82,
975 A.2d 17 (2009), overruled in part by State v. Kitchens, 299 Conn. 447,
10 A.3d 942 (2011), described the claim in Brewer as one of induced error,
its description was incorrect.
14
We also noted that, ‘‘in circumstances in which defense counsel’s waiver
of a constitutional claim cannot be justified, that is, when the waiver consti-
tutes a violation of the defendant’s right to the effective assistance of counsel,
the defendant may seek recourse through habeas corpus proceedings. Such
proceedings are available to safeguard the constitutional rights of any defen-
dant who has been prejudiced by the ineffective assistance of his or her
attorney.’’ State v. Holness, supra, 289 Conn. 544 n.8.
15
Chief Justice Rogers contends that ‘‘a broad waiver of claims of instruc-
tional error’’ is not analogous to the abandonment of claims that might have
been made in connection with a waiver of other constitutional rights, such
as the right to trial, to counsel or to a probable cause hearing, because a
criminal defendant who waives such rights ‘‘consciously chooses to relin-
quish claims, known or unknown, in exchange for something he or she
values—a favorable plea, the right to self-representation or a strategic advan-
tage, respectively.’’ Footnote 15 of Chief Justice Rogers’ concurring opinion.
We disagree. There is no such ‘‘exchange’’ because waiver of the foregoing
rights is within the complete control of the defendant. Even if the waivers
are viewed as involving a so-called ‘‘exchange,’’ however, the gains to which
Chief Justice Rogers refers do not necessarily have any clear practical value.
Waiving the right to trial counsel, for example, does not provide defendants
who have no knowledge of the law or legal experience with any obvious
benefit other than the satisfaction of self-representation, despite the newly
acquired ability to control trial strategy. In contrast, criminal defendants
who waive a claim of instructional error are still able to utilize the wide
array of procedural tools available to ensure that the jury instructions are
correct. As discussed in this opinion, these tools include the rules of practice,
which provide defendants and their counsel with numerous opportunities
to participate in the formulation of the jury instructions throughout the
proceedings. Chief Justice Rogers specifically recognizes this benefit when
she states: ‘‘[T]here are features unique to jury instructions that justify
holding counsel to a higher standard of accountability for failing to preserve
claims of error. . . . Specifically, jury instructions are carefully formulated
outside of the rush of trial pursuant to the rules of practice that afford
counsel a large degree of participation in a structured process. The purpose
of these rules is to detect error at the earliest possible juncture, and the
threat of an implied waiver of an instructional claim on appeal, at least in
narrowly defined circumstances, provides an appropriate incentive for the
opportunity to be taken seriously.’’ Footnote 16 of Chief Justice Rogers’
concurring opinion. She adds, and we agree, that ‘‘[t]he detection of error
at trial, without the necessity of an appeal, is the most desirable outcome
for purposes of both fairness to defendants and the efficient operation of
the court system.’’ Id. We finally note that a criminal defendant who waives
the right to trial, to counsel or to a probable cause hearing, like a defendant
who waives the right to challenge a jury instruction, still waives all of the
potential claims that he might have been entitled to bring if the right had
not been waived. Accordingly, the waiver of a claim of instructional error
is analogous to the waiver of other constitutional rights.
16
In her concurring opinion in Kitchens, Justice Katz noted that, from
January 1, 2000, to May 5, 2010, this court considered approximately seventy
criminal appeals in which a defendant requested Golding review of instruc-
tional error and found reversible error in only six cases. State v. Kitchens,
supra, 299 Conn. 522 n.17 (Katz, J., concurring). During that same period,
the Appellate Court considered approximately 250 criminal appeals in which
a defendant requested Golding review of instructional error and found
reversible error in only seventeen cases. Id.
17
In a separate but related argument, the defendant contends that the
waiver rule in Kitchens should be overturned because it has resulted in
conflicting and confusing decisions by reviewing courts as to what consti-
tutes a ‘‘ ‘meaningful opportunity’ ’’ to review the instructions and what
constitutes an ‘‘ ‘adequate record’ ’’ to support waiver. The defendant also
argues that the waiver rule is inconsistent with the goals of ‘‘efficient appel-
late administration’’ and ‘‘the correction of manifest injustice.’’ We disagree.
As previously discussed, waiver decisions cannot be compared on the
basis of a single factor, as the defendant attempts to do in his argument to
this court. Rather, it is the combination of facts and circumstances in each
individual case that must be considered. For example, the amount of time
deemed sufficient to constitute a meaningful opportunity to review the jury
instructions depends on factors such as the length and complexity of both
the trial and the instructions, which will very likely differ in each case. Thus,
direct comparisons between cases simply cannot be made. Compare State
v. Lavigne, 307 Conn. 592, 598 n.4, 57 A.3d 332 (2012) (concluding that
opportunity to review extremely lengthy instructions ninety minutes before
charging conference and then overnight did not constitute meaningful oppor-
tunity for review because of length and complexity of trial and counsel’s
need to use overnight time to prepare for closing argument), with State v.
Lee, 138 Conn. App. 420, 453–54, 52 A.3d 736 (2012) (concluding that opportu-
nity to review instructions two hours before charging conference and over-
night constituted meaningful opportunity for review because counsel raised
no concerns following day when queried by court), cert. granted, 321 Conn.
911, 136 A.3d 644 (2016). This does not lead to confusion, as the defendant
suggests, but simply means that courts must conduct a holistic evaluation
in every case, and counsel must use common sense in determining how to
respond to the court’s proposed instructions.
The defendant’s corresponding argument that our law provides no guid-
ance as to what constitutes an ‘‘ ‘adequate record’ ’’ to find waiver under
Kitchens is likewise lacking in merit. In arguing that our case law is confusing
on this issue, the defendant cites to three cases in which waiver was found
and two cases in which waiver was not found, even though there was no
marked copy of the trial court’s proposed jury instructions in the record of
any of the cases. In the three cases in which waiver was found, however,
the record contained evidence not present in the other two cases, indicating
that defense counsel had knowledge of the proposed jury instructions and
a meaningful opportunity to review them. Compare State v. Bialowas, 160
Conn. App. 417, 427 n.7, 428, 125 A.3d 642 (2015) (although record contained
no copy of court’s proposed charge but only final amended version of
instructions given to jury, defense counsel waived instructional claim
because record showed that counsel received court’s proposed charge three
days before charge was given, court asked counsel prior to delivery of
closing arguments whether he had ‘‘ ‘[a]nything else’ ’’ to state on record
with regard to off-the-record charging conference, and counsel responded,
‘‘ ‘I don’t think so, Your Honor’ ’’), and State v. Osbourne, 138 Conn. App.
518, 543, 53 A.3d 284 (‘‘[Defense counsel waived objection to the instruction
as given because] [a]lthough the record does not reflect whether the court
provided counsel with a written copy of its charge before it was given to
the jury, the court held a charge conference before instructing the jury, and
it is discernible from the record that the court’s instructions to the jury were
consistent with the instructions as discussed during the charge conference.
[Defense counsel] did not object . . . [or] take exception . . . to the
court’s initial instruction, or to either of the court’s subsequent reiterations
of that instruction; nor did [defense counsel] object to the transcription of
its instruction being provided to the jury. Because the court instructed on
the interfering charge three times and then submitted a written copy of the
instruction to the jury, it is reasonable to infer that defense counsel had
knowledge of any potential flaws in the court’s instruction, yet he failed to
raise any claims regarding those flaws before the trial court.’’), cert. denied,
307 Conn. 937, 56 A.3d 716 (2012), and State v. Bharrat, 129 Conn. App. 1, 17
and n.9, 18–19, 20 A.3d 9 (although record contained no copies of instructions
circulated by court on two different occasions, defendant did not dispute
state’s assertion that jury instructions in circulated copies encompassed
same instructions that court ultimately delivered, and, therefore, claim was
waived because record reflected that court distributed copies of final charge
to parties, summarized on record its recollection of charging conferences
held with parties, informed counsel it would give more time to check instruc-
tions for potential errors, asked thereafter if counsel had ‘‘ ‘any addition,
summation, disagreements, additions, [or] subtractions’ ’’ from court’s sum-
mary of charging conference, and, following jury charge, asked for further
comments, to which defense counsel replied in negative), cert. denied, 302
Conn. 905, 23 A.3d 1243 (2011), with State v. Davis, supra, 311 Conn. 479,
481 (defense counsel did not waive instructional claim because court did
not provide counsel with precise content of proposed instructions, as ‘‘the
only discussion of the jury instructions, prior to the delivery of the charge
to the jury, was limited to the state’s proposed charge, which defense counsel
stated he had not read, and [to] ambiguous references to the [standard
criminal jury] instructions on the Judicial Branch website’’ that court stated
it would deliver ‘‘ ‘in essence, maybe not exactly’ ’’), and State v. Devalda,
supra, 306 Conn. 505 n.15 (instructional claim was not waived because
record surrounding discussion of charging conference failed to indicate
when or whether defense received written copy of proposed jury instruc-
tions).
18
The defendant’s suggestion that a state’s attorney who spots an error
might deliberately ignore it, ‘‘secure in the knowledge that [a] Kitchens
waiver will bar review of that error on appeal,’’ reflects a cynical view that
we reject.
19
Evidence that jury instructions are likely to be more carefully crafted
in light of Kitchens is provided by State v. Herring, 323 Conn. 526, A.3d
(2016), a companion case in which the trial court, nearly ten months
following the release of our decision in Kitchens, held an on-the-record
charging conference during which it examined the proposed instructions
page by page and queried the parties as to whether they had any objection
to the instructions on each page.
20
The defendant contends that ‘‘[a] habeas action costs the system money,
time, and resources. A public defender or assigned counsel is likely needed,
both at trial and on appeal. Judges, state’s attorneys, and judicial staff are
required for trial and appeal. An appellate judge who [finds a] Kitchens
waiver during the direct appeal may, a few years later, be presented with
the same issue in the habeas appeal.’’
21
Trial counsel’s testimony at the habeas proceedings in Kitchens also
refutes the defendant’s suggestion in the present case that counsel would
never implicitly waive jury instruction claims as a matter of trial strategy.
Counsel may have perfectly legitimate reasons, as he did in Kitchens, to
create a theory of defense that not only does not involve the issue raised
in the jury instruction claim on appeal, but would be weakened by a jury
instruction request inconsistent with the chosen theory.
22
To the extent the defendant claims that habeas review does not eliminate
the unfairness of finding implied waiver in cases in which counsel challenges
an aspect of settled law on direct appeal that was not challenged in the
trial proceedings, we note that the defendant is in the same position as all
other defendants to whom the law has applied in the past. Moreover, there
is nothing to prevent trial counsel from challenging settled law in the trial
proceedings, thereby preserving the claim for appellate review. See State
v. Brewer, supra, 283 Conn. 361 n.11 (futility is no excuse for failing to
preserve challenge to jury instructions that comply with precedent). We
nonetheless leave the merits and a full discussion of this argument for
another day, when such a claim is presented to this court on direct appeal.
We also decline to address the parties’ arguments regarding the effect of
Kitchens on plain error review because it is the subject of a pending appeal
before this court. See State v. McClain, 319 Conn. 902, 122 A.3d 637 (2015)
(granting certification to review issue of whether ‘‘the Appellate Court prop-
erly determine[d] that an implied waiver of a claim of instructional error that
satisfies [Kitchens] also forecloses plain error review’’ [citation omitted]).
23
The following test is applied to determine whether a claim of unpre-
served error may be reviewed under rule 52 (b) of the Federal Rules of
Criminal Procedure. ‘‘First, there must be an error or defect—some sort of
[d]eviation from a legal rule—that has not been intentionally relinquished
or abandoned, i.e., affirmatively waived, by the appellant. . . . Second, the
legal error must be clear or obvious, rather than subject to reasonable
dispute. . . . Third, the error must have affected the appellant’s substantial
rights . . . . Fourth . . . if the above three prongs are satisfied, the
[reviewing] court . . . has the discretion to remedy the error—discretion
which ought to be exercised only if the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.) Puckett v. United
States, 556 U.S. 129, 135, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009), quoting
United States v. Olano, supra, 507 U.S. 732–34, 736.
24
The court stated: ‘‘We conclude that, when the trial court provides
counsel with a copy of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively accepts the instructions
proposed or given, the defendant may be deemed to have knowledge of any
potential flaws therein and to have waived implicitly the constitutional right
to challenge the instructions on direct appeal. Such a determination by the
reviewing court must be based on a close examination of the record and
the particular facts and circumstances of each case.’’ State v. Kitchens,
supra, 299 Conn. 482–83.
25
The court stated: ‘‘The standard that we describe would not allow waiver
to be presumed from a silent record or from defense counsel’s mere acquies-
cence in, or failure to object to, the jury instructions. A silent record, by
definition, would not satisfy the standard because there would be no factual
basis from which the court could infer a waiver, and mere acquiescence or
failure to object, without more, would provide an insufficient basis for a
finding of waiver because there would be no evidence from which the court
could determine whether counsel had been given a meaningful opportunity
to review, comment on and express satisfaction with the instructions, or
whether counsel had, in fact, expressed such satisfaction before or after
the instructions were given.’’ State v. Kitchens, supra, 299 Conn. 483 n.23.
26
In his concurrence in Kitchens, Justice Palmer stated that ‘‘waiver may
be implied—that is, it may be inferred—only if the record reveals conduct
by counsel demonstrating both that counsel had knowledge of the potential
constitutional claim and intentionally decided to raise it, presumably for
strategic reasons.’’ (Emphasis in original.) State v. Kitchens, supra, 299
Conn. 537 (Palmer, J., concurring).
27
In response to our conclusion that Justice Palmer’s idiosyncratic defini-
tion very likely would eviscerate the concept of implied waiver, he cites
several ‘‘traditional, pre-Kitchens’’ cases in which the court found waiver
under reasoning he considers consistent with his definition. Footnote 6 of
Justice Palmer’s concurring opinion. In none of those cases, however, did
the court find waiver under reasoning consistent with his definition because
there was no indication in any of those cases that defense counsel was
aware that the instruction was defective when counsel agreed to the instruc-
tion later challenged on appeal, as Justice Palmer’s definition requires. See
State v. Hampton, 293 Conn. 435, 447, 449–50, 978 A.2d 1089 (2009) (defense
counsel waived instructional claim on ground that he had accepted instruc-
tion that was given as ‘‘ ‘in order,’ ’’ and thus correct); State v. Whitford,
260 Conn. 610, 633, 799 A.2d 1034 (2002) (defense counsel waived instruc-
tional claim on ground that counsel, ‘‘[b]y agreeing to the proposed instruc-
tion, and by failing to object to the supplemental charge as given . . .
effectively conceded that it was sufficient to cure any previous impropriety’’);
State v. Jones, 193 Conn. 70, 88–89, 475 A.2d 1087 (1984) (instructional claim
was waived when counsel ‘‘accepted . . . as correct’’ jury instruction later
challenged on appeal); State v. Fuller, 158 Conn. App. 378, 389–90, 119 A.3d
589 (2015) (defense counsel waived instructional claim under Kitchens
because counsel indicated multiple times that there were ‘‘no issues with
the charge’’). In relying on the foregoing cases, Justice Palmer fails to
distinguish between a proposed instruction being raised at trial and defense
counsel agreeing to it, on the one hand, and defense counsel knowing that
the instruction is incorrect and agreeing to it, on the other.
28
We note that, after the court concluded that the doctrine of induced
error precluded Lahai from prevailing under Golding’s third prong; State v.
Lahai, supra, 128 Conn. App. 457; see State v. Golding, supra, 213 Conn.
240; it added that, even if defense counsel had not induced the error, Lahai’s
claim would have been waived under Kitchens. See State v. Lahai, supra,
459–60. This brief reference to Kitchens, however, following the court’s
conclusion that the error had been induced, does not change the fact that
Kitchens was not essential to the habeas court’s holding and had nothing
to do with any delay in reaching a final resolution of Lahai’s jury instruc-
tion claim.
29
Justice Palmer’s attempt to downplay the significance of this fact by
stating that the Appellate Court would have found a waiver under Kitchens
if the trial court had satisfied the Kitchens criteria for implied waiver, thus
preventing review of the defendant’s claim, is wholly speculative.
30
See Carrion v. Warden, Superior Court, judicial district of Tolland,
Docket No. TSR-CV-11-4004163-S (December 15, 2015); Bharrat v. Commis-
sioner of Correction, supra, Superior Court, Docket No. TSR-CV-12-4004615-
S; Lahai v. Warden, supra, Superior Court, Docket No. TSR-CV-09-4003028-
S; see also Myers v. Warden, Superior Court, judicial district of Tolland,
Docket No. TSR-CV-14-4005938-S (withdrawn August 12, 2016).
31
The other two claims were that Carrion’s trial counsel was ineffective
for failing to investigate and failing to call witnesses. Carrion v. Warden,
supra, Superior Court, Docket No. TSR-CV-11-4004163-S.