State v. Davis ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE v. DAVIS—CONCURRENCE
PALMER, J., concurring. In State v. Kitchens, 299
Conn. 447, 10 A.3d 942 (2011), this court held that a
defense counsel’s failure to object to the trial court’s
jury instructions after having been afforded a meaning-
ful opportunity to review them gives rise to a conclusive
inference that, for strategic reasons, defense counsel
knowingly and intentionally waived the defendant’s
right to challenge the instructions on constitutional
grounds.1 See id., 474, 482–83. As the Appellate Court
correctly determined, the present case, which involves
a claim by the defendant, Raquann Tyrone Davis, that
the trial court improperly had instructed the jury that
it could find him guilty of robbery in the first degree
on an uncharged theory of liability,2 falls squarely within
the Kitchens waiver doctrine. See State v. Davis, 131
Conn. App. 50, 62–65, 26 A.3d 128 (2011). Straining
to avoid the obvious unfairness of faithfully applying
Kitchens to the present case—because, as the majority
aptly notes, ‘‘the defendant gained no [strategic] advan-
tage by permitting the state to enlarge upon the theory
of liability alleged in its long form information’’—the
majority relies on demonstrably illogical and uncon-
vincing arguments in refusing to acknowledge that
Kitchens plainly precludes the defendant’s claim of
instructional impropriety. If the majority now has sec-
ond thoughts about this court’s holding in Kitchens—
as it should, for the reasons set forth in part II of this
opinion—then the majority should say so. If not, the
majority should acknowledge that applying our holding
in Kitchens to the facts of the present case leads to
one, and only one, conclusion: for purposes of Kitchens,
defense counsel had adequate written notice of the jury
instruction at issue and, therefore, must be presumed
to have waived the defendant’s right to object to that
instruction. Consequently, despite my strong disagree-
ment with Kitchens,3 I ordinarily would feel bound to
follow its holding and to affirm the judgment of the
Appellate Court in the present case.4 I do not do so,
however, because the majority does not consider itself
so bound, and because I continue to believe that our
decision in Kitchens was manifestly incorrect. Thus,
this concurrence consists of two parts: first, I explain
why Kitchens clearly controls this case, and, second,
I briefly elaborate on why, although Kitchens is control-
ling, I nevertheless decline to follow it in the present
case.
I
The relevant facts are simple and straightforward.
After the state rested its case against the defendant,
the trial court informed defense counsel that it had
received the state’s written request to charge on robbery
in the first degree, which, as the court also noted, is
the standard form jury instruction that appears on the
Judicial Branch website. With respect to that instruc-
tion, the court stated: ‘‘I intend to give the robbery
[charge] in essence, maybe not exactly, but the robbery
charge will be given.’’ Defense counsel responded that
he did not have the state’s request to charge with him,
and that he had not yet read it, but that, because it was
the standard charge, he had no objection to it. The next
day, the court instructed the jury on the elements of
robbery in the exact terms of the standard form jury
instruction, as reproduced verbatim in the state’s
request to charge, that had been the subject of the
colloquy between the court and defense counsel the
previous day. Following a recess, both counsel once
again informed the court that they had no objection to
the instruction as given.
In Kitchens, this court held 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 defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal.’’ State v. Kitchens, supra, 299 Conn. 482–83. In
other words, in such circumstances, defense counsel
will be found to have waived any and all potential claims
of instructional impropriety that he did not raise. The
court in Kitchens also stated that the waiver ‘‘determi-
nation by the reviewing court must be based on a close
examination of the record and the particular facts and
circumstances of each case.’’ Id., 483. Finally, for pur-
poses of this determination, it is presumed that ‘‘counsel
is competent and capable of acting on behalf of the
defendant in matters concerning trial management,
including waiver of the defendant’s right to challenge
a jury instruction . . . .’’ Id., 486–88.
In the present case, it is undisputed that (1) defense
counsel had a written copy of the charge on robbery
in the first degree that the court told counsel it intended
to give, ‘‘in essence,’’ to the jury,5 (2) counsel had ample
time and opportunity to consider that charge before
the court instructed the jury, (3) counsel expressly
stated that he did not object to the charge as given,
and (4) the charge was identical to the standard charge
contained in the state’s requested instruction and on
the Judicial Branch website. Under these facts, it could
hardly be clearer that the Kitchens requirement—a
meaningful opportunity to review the court’s proposed
charge—was met.
In a paradigmatic example of the exaltation of form
over substance, the majority reaches a different conclu-
sion, focusing, first, on the fact that the trial court
informed counsel that it would charge the jury, ‘‘in
essence, maybe not exactly,’’ in accordance with the
standard jury charge on first degree robbery contained
in the state’s requested instruction. On the basis of this
language, the majority asserts that the court’s statement
concerning the charge was so ‘‘ambiguous’’ and ‘‘equivo-
cal’’ that it ‘‘failed to provide the [defense] with adequate
notice of the actual content of the court’s proposed
instructions.’’ Text accompanying footnote 7 of the
majority opinion. According to the majority, the pur-
ported ambiguity and resulting lack of notice stemmed
from the court’s failure to inform counsel ‘‘of the [pre-
cise] substance of the proposed instructions,’’ which,
the majority asserts, deprived counsel of a ‘‘meaningful
opportunity to review the instructions.’’
It is an understatement to say that the majority’s
reasoning is unpersuasive. There is absolutely nothing
‘‘ambiguous’’ or ‘‘equivocal’’ about the court’s statement
that it would give the state’s proposed charge ‘‘in
essence, maybe not exactly . . . .’’ In fact, the state-
ment was perfectly clear: the court intended to give the
proposed charge, but it retained the option of making
immaterial or inconsequential changes to that charge.
I do not see how the court’s statement can possibly be
interpreted differently, and I also do not see how it is
possible to conclude that competent defense counsel
did not have adequate notice of the proposed charge
merely because the court indicated that it might make
immaterial changes to it. Indeed, when a court provides
the parties with a copy of its proposed charge, it goes
without saying that the court retains the option of devi-
ating from the script in a way that has no material
bearing on the meaning or substance of the charge. Of
course, if, in the present case, the charge that the court
ultimately gave to the jury did deviate materially from
the proposed charge, then, under Kitchens, defense
counsel would not be deemed to have had adequate
notice of that charge. That did not happen in the present
case; rather, the language of the charge as given was
identical to the language of the proposed charge.
With respect to its assertion that defense counsel in
the present case somehow did not have a meaningful
opportunity to review the charge, there is only one
way for the majority to reach that result, that is, by
concluding that competent counsel would not be
obliged either to retrieve the state’s proposed charge
from his file or to obtain the standard form charge on
the Judicial Branch website, and then to review the
charge. This is so because it is undisputed that, for
purposes of Kitchens, defense counsel had sufficient
time to review a written copy of the charge, and, thus,
ordinarily, Kitchens requires us to presume that counsel
did review the charge, that he did recognize every possi-
ble constitutional infirmity with it, and that, by not
objecting to the charge, he did knowingly and intention-
ally waive every such infirmity. Thus, only if counsel
in the present case was not required to review the
charge, despite having been afforded a fair opportunity
to do so, can he be deemed not to be on notice of it.
In fact, that necessarily is the premise of the majority’s
argument: because the court’s statement that it would
give the proposed or standard charge ‘‘in essence,
maybe not exactly’’ was so ‘‘ambiguous’’ and ‘‘equivo-
cal,’’ defense counsel was under no obligation to review
the charge. Not surprisingly, one scours the majority
opinion in vain to find its acknowledgment of this prem-
ise, no doubt because it is so completely unfounded.
Obviously, no competent attorney in defense counsel’s
position would—or should—feel free to conduct him-
self in the cavalier and unprofessional manner envi-
sioned by the majority—that is, to simply ignore the
charge that he had in his possession and that he readily
could have obtained online—merely because the trial
court stated that it would be giving the proposed or
standard charge ‘‘in essence,’’ although perhaps not
word for word. And yet, that is the majority’s specific
conclusion: a defense attorney reasonably cannot be
expected to review the proposed charge unless the
court promises to give it word for word and not to
deviate from it, even in the most immaterial or inconse-
quential way. There simply is no rational justification
for this conclusion, and the majority makes no attempt
to offer one.6
Rather, as the Appellate Court succinctly explained,
‘‘the fact that the [trial] court, in discussing the state’s
requested robbery instruction, stated that it might not
use the state’s exact language is of no consequence to
our analysis. Plainly, the court stated that it intended
to deliver ‘in essence’ the state’s requested robbery
instruction. Afforded its reasonable interpretation, this
statement conveyed that the court intended to deliver
an instruction that mirrored the state’s instruction in
all material respects. . . . [T]his, in fact, occurred.’’
State v. Davis, supra, 131 Conn. App. 60.
Instead of acknowledging the obvious logic of the
Appellate Court’s reasoning, the majority ignores it alto-
gether and asserts, instead, that, ‘‘[i]f anything is indis-
putable . . . it is that when the trial court stated that
the instruction it intended to give on robbery in the
first degree would be ‘in essence, maybe not exactly,’
the model instruction available on the Judicial Branch
website and reproduced by the state in its proposed
charge, the court indicated that it would give a charge
that did not mirror the model instruction in every
respect. Accordingly, the precise substance of the
intended charge could not have been clear to defense
counsel when he agreed to it.’’ (Emphasis omitted.)
Footnote 10 of the majority opinion. This argument is
specious, first, because it is predicated on an incorrect
premise and, second, because it is beside the point. The
premise on which this argument is founded, that is, that
the court ‘‘indicated that it would give a charge that
did not mirror the [proposed or] model instruction in
every respect’’; (emphasis omitted) id.; is simply incor-
rect because the statement surely was not a representa-
tion that the court would give a charge that did not
mirror the model charge exactly; rather, it was a repre-
sentation that the court ‘‘maybe’’ or perhaps would not
give the proposed or standard charge ‘‘exactly . . . .’’
In stating that it might not give the charge ‘‘exactly,’’
the court also expressly retained the option of giving it
‘‘exactly,’’ which is precisely what the trial court did do.
Other flaws in the majority’s argument are even more
glaring and more fundamental. First, even if it is
assumed that ‘‘the precise substance of the intended
charge could not have been clear to defense counsel
when he agreed to it,’’ as the majority asserts; footnote
10 of the majority opinion; the question is not what
counsel believed or did not believe when he agreed to
the charge but what he would have known about the
charge if he had read it before the court instructed the
jury the next day. If he had, the charge would have
been perfectly clear to him. That is what we stated in
Kitchens: counsel must be given an adequate opportu-
nity to review the proposed charge, and, if the court
affords counsel that opportunity, a reviewing court will
deem counsel to have reviewed it and to have waived
any challenge to the charge that counsel did not raise
in the trial court.7 See State v. Kitchens, supra, 299
Conn. 482–83. As I explained, the majority’s position
necessarily is founded on its threshold or predicate
determination that the trial court’s statement with
respect to its plan to give the state’s proposed charge
was so vague and so nebulous as to the content of the
charge that a competent defense attorney reasonably
would feel free to decline to read the proposed charge
because the court’s statement provided no meaningful
guidance. For the reasons set forth previously, this is
a wholly unreasonable and illegitimate proposition.
Second, to the extent that it can be said that counsel
was unaware of ‘‘the precise substance of the intended
charge’’; (emphasis added) footnote 10 of the majority
opinion; the obvious response to the majority’s asser-
tion is, so what? Why does the ‘‘precise’’ substance or
language of the proposed charge matter if, as the court
stated here, it intends to give that charge in all material
respects? Of course, it does not matter at all, because
an immaterial or inconsequential difference is, by defi-
nition, a difference that does not matter. If counsel had
reviewed the proposed charge, as he was required to
do, he would have known what it said, and he would
have known that the charge as given did not deviate at
all from the proposed charge. In those circumstances,
there simply is no possible justification for concluding
that defense counsel had inadequate notice of the
intended charge for purposes of Kitchens.8
The majority advances a second reason for finding
that Kitchens is inapplicable to the present case,
namely, that the trial court itself never provided a copy
of its proposed charge to defense counsel. This con-
tention fares no better than the majority’s first argu-
ment. Although acknowledging that defense counsel
had a copy of the state’s request to charge on robbery,
which mirrored the standard form jury charge from the
Judicial Branch website, and that the state’s requested
charge was identical in all material respects to the
charge that the court told counsel it would give to the
jury, the majority asserts that only instructions that
the court personally provides to counsel will suffice
because, under Kitchens, ‘‘the trial court’s proposed
instructions, not the [state’s] request to charge, is the
touchstone of our implied waiver analysis.’’ Although
the majority’s assertion is correct as a general matter,
the majority conveniently overlooks the ‘‘particular
facts and circumstances of [the] case,’’ which, pursuant
to Kitchens, and common sense, we must consider.
State v. Kitchens, supra, 299 Conn. 483. Viewed in the
context of those facts and circumstances, it is perfectly
obvious that it makes no difference whether the charge
proposed by the court is memorialized in a document
that the court itself provides to the parties or whether
the court tells counsel that its proposed instruction is
the very same instruction that is set forth in the state’s
written request to charge, a copy of which defense
counsel had been provided in a timely manner. In other
words, there was no need for the court to give counsel
a copy of a document that he already had. Thus, in the
present case, the distinction that the majority draws
between a written copy of the proposed charge that is
provided to counsel by the court, on the one hand, and
a copy of the charge contained in the state’s written
request to charge, on the other, is a classic example of
a distinction without a difference.9
It is apparent, therefore, that the two arguments prof-
fered by the majority to support its reversal of the
judgment of the Appellate Court are mere makeweights
and that, as the Appellate Court concluded, Kitchens
bars the defendant’s claim of instructional impropriety.
Nevertheless, like the majority, I would not preclude
the defendant from pursuing his claim on appeal. In
contrast to the majority, however, I decline to so pre-
clude the defendant because, in my view, Kitchens rep-
resents a radical, unwarranted and unjust departure
from the Golding doctrine.10
II
As I previously discussed, Kitchens is founded on
the premise, advanced by the state in that case, that
defense counsel’s failure to object to the trial court’s
jury charge, after having been afforded a reasonable
opportunity to review it, gives rise to an inference that
counsel waived all constitutional challenges to the
charge.11 See id., 483 (‘‘[i]t is well established that
implied waiver . . . arises from an inference that the
defendant knowingly and voluntarily relinquished the
right in question’’ [emphasis in original]). In other
words, if two conditions are met, namely, that counsel
had a meaningful opportunity to review the charge and
did not object, a blanket waiver will be implied. Of
course, waiver is to be distinguished from forfeiture.
As the court explained in Kitchens, ‘‘waiver is the inten-
tional relinquishment or abandonment of a known right,
whereas forfeiture is the failure to make the timely
assertion of that right’’; (internal quotation marks omit-
ted) id., 474; and it bears emphasis that this court
expressly rejected the state’s alternative argument in
Kitchens that counsel’s acquiescence in or acceptance
of the charge ‘‘represents a forfeiture that precludes
Golding review.’’ (Emphasis added.) Id., 474. In declin-
ing the state’s invitation in Kitchens to subject to forfei-
ture any potential constitutional claim merely because it
was not asserted in a timely manner, the court explained
that subjecting a constitutional right to forfeiture for
that reason would be inconsistent with Golding. See
id., 474–75. I fully agree with this conclusion because
Golding embodies the sound judicial policy that, in the
absence of a knowing and intentional waiver, a criminal
defendant is entitled to the opportunity to prevail on
an unpreserved constitutional claim that meets the four
Golding criteria. See footnote 10 of this opinion. Thus,
the court in Kitchens correctly explained that, under
Golding and its progeny, defense counsel will not be
deemed to have abandoned the defendant’s right to
appellate review of an unpreserved constitutional chal-
lenge to the court’s jury charge merely because counsel
failed to object to the allegedly improper instruction in
the trial court; rather, the claim will be treated as waived
for purposes of Golding if, and only if, the record
reflects that counsel’s failure to raise the claim in the
trial court was the product of an intentional, strategic
decision, made with full knowledge of the claim, to
abandon the claim. See State v. Kitchens, supra, 299
Conn. 474–75. Kitchens is otherwise fundamentally
flawed, however, because, as I explain hereinafter, it
is predicated on the demonstrably unsupportable pre-
sumption that counsel’s failure to object to the jury
charge after fair notice of the charge signifies a knowing
and intentional waiver of any constitutional claim that
counsel did not raise in the trial court. Indeed, in relying
on this groundless presumption, the court in Kitchens
effectively adopted the very same forfeiture model that
it purported to reject as incompatible with Golding.
In accordance with Kitchens, defense counsel is
deemed to have waived any and all constitutional
claims that he did not raise at trial. See id., 483. This
blanket waiver includes the entire universe of meritori-
ous and nonmeritorious claims, because Kitchens
treats them all as having been waived. Consequently,
because waiver is the intentional relinquishment or
abandonment of a known right; id., 469; Kitchens
requires us to presume, first, that counsel thought of
every possible claim, from the most meritorious to the
most frivolous, and everything in between, and, second,
that, upon due consideration of each and every one of
those claims, counsel decided to abandon them all,
presumably for strategic reasons. Because it is obvi-
ously impossible for any defense attorney, or any team
of defense attorneys, to conceive of all potential claims,
whether meritorious or not, it is clear that Kitchens is
predicated on a palpably unrealistic assumption. For
that reason alone, the Kitchens waiver doctrine should
be deemed invalid.
Even if the Kitchens test were based on a plausible
reality, which it is not, its approach is completely at
odds with the manner in which competent criminal
defense counsel actually conduct themselves in repre-
senting their clients. Far from intentionally abandoning
potentially meritorious constitutional claims, compe-
tent defense attorneys invariably raise any and all such
claims of which they are aware because there simply
is no legitimate justification for not doing so.12 In light
of Kitchens, however, whenever the trial court provides
defense counsel with a reasonable opportunity to
review a written copy of the charge prior to its delivery
to the jury, reviewing courts now presume, conclusively
and without the possibility of rebuttal, that defense
counsel has considered and intentionally abandoned
a virtually limitless number of possible constitutional
challenges, including potentially meritorious ones,
merely by failing to raise them. As I stated previously,
even if this were humanly possible—and of course it
is not—it is a presumption that bears absolutely no
relation to the way in which competent defense counsel
go about representing their clients. Thus, the court in
Kitchens had it backward: instead of presuming that
competent defense counsel does not intend to waive
his client’s constitutional rights unless the record
clearly and unequivocally reflects such an intent, Kitch-
ens presumes a knowing and intentional waiver from
a record that is silent on the issue. Not surprisingly,
this approach cannot be squared with the settled princi-
ple that, under the strict waiver standard applicable
when, as in the present case, important rights are at
stake, courts ‘‘indulge every reasonable presumption
against waiver of fundamental constitutional rights and
. . . [do] not presume acquiescence in the loss of [such]
rights.’’ (Internal quotation marks omitted.) State v.
Gore, 288 Conn. 770, 777, 955 A.2d 1 (2008).
The court in Kitchens was obliged to acknowledge
that determining whether a knowing and intentional
waiver may be implied from the circumstances depends
on a fact based, case specific inquiry. See, e.g., State
v. Woods, 297 Conn. 569, 583, 4 A.3d 236 (2010) (determi-
nation of waiver of constitutional right requires consid-
eration of totality of circumstances). In truth, however,
Kitchens adopts a ‘‘one size fits all’’ methodology pursu-
ant to which only two factors merit consideration:
whether the proposed charge was in writing and
whether defense counsel was afforded a reasonable
period of time to review the charge. Nothing else mat-
ters, and no other facts or circumstances are relevant to
the inquiry. How can this be, if, as the court in Kitchens
conceded, a finding of implied waiver can be made only
after considering all the facts and circumstances? The
explanation is that Kitchens is not a waiver case at all.
It is, rather, a forfeiture case masquerading as a waiver
case. Under Kitchens, the defendant’s right to raise a
claim of instructional impropriety on appeal is forfeited
if it is not raised in a timely manner after adequate
notice of the proposed charge. Although this was abun-
dantly clear when Kitchens was decided; see State v.
Kitchens, supra, 299 Conn. 544 n.10 (Palmer, J., concur-
ring) (‘‘in reality, the majority’s decision [in Kitchens]
rests on the forfeiture doctrine, pursuant to which
defense counsel’s failure to make a claim in a timely
manner, that is, at trial, bars the defendant from raising
the claim on appeal’’); see also id., 541 n.8 (Palmer,
J., concurring) (‘‘the majority [in Kitchens] effectively
embraces the forfeiture doctrine while purporting to
reject it’’); it also has been amply demonstrated by our
post-Kitchens cases. See, e.g., State v. Webster, 308
Conn. 43, 63, 60 A.3d 259 (2013) (‘‘[w]e note that in
every post-Kitchens case in which defense counsel was
given the opportunity to review [a written copy of] the
[court’s] proposed jury instructions overnight, we have
concluded that defense counsel had received a mean-
ingful opportunity to review the proposed instructions
under the Kitchens test’’).
That Kitchens is not truly predicated on a waiver
theory also is readily apparent from the refusal of the
majority in that case to accept the fact that, as I
explained in my concurring opinion in that case, the
inference of a knowing and intentional waiver that was
invented in Kitchens easily can be avoided by a simple
representation by trial counsel, following his review of
the court’s proposed jury charge, that he does not intend
to waive any potential constitutional claims, and that
his failure to object indicates only that he is unaware
of any such claim or claims. See State v. Kitchens, supra,
299 Conn. 541 (Palmer, J., concurring) (explaining that
counsel can readily circumvent inference of waiver cre-
ated under Kitchens by express disavowal of any such
waiver). Such an express representation by counsel—
who, in accordance with Kitchens, is deemed to be
acting competently and appropriately on behalf of the
defendant—necessarily would trump any possible sug-
gestion of an implied waiver by conduct. After all, under
Kitchens, waiver is implied only because the court in
that case concluded that counsel’s conduct in failing to
object to the court’s charge after having been afforded a
meaningful opportunity to review it gives rise to an
inference that counsel intended to waive the defen-
dant’s rights. If, however, defense counsel, who is pre-
sumed to be competent, expressly states that his failure
to object should not be mistaken for waiver, because,
in fact, he is not intending to waive any potential consti-
tutional claim, then there is absolutely no reason why
the reviewing court should nevertheless insist that
counsel had intended to waive the defendant’s rights.13
Indeed, although purporting to acknowledge that the
waiver determination can be made only upon a careful
consideration of all the facts and circumstances, the
court in Kitchens nevertheless concluded that defense
counsel’s express disavowal of waiver has no bearing
on the waiver issue. Id., 488 n.25 (‘‘we unequivocally
reject as legally unsupportable the assertion that coun-
sel may expressly disavow waiver by informing the trial
court that he is ‘unaware’ of any constitutional infirmit-
ies in the jury instructions’’). There simply is no logical
justification for this conclusion because it is completely
at odds with the concept of a knowing and intentional
waiver; the conclusion makes sense only when one
appreciates the Kitchens model for what it is, namely,
a forfeiture model and not a waiver model.
The illogic of the court’s reasoning in Kitchens is
highlighted by its explanation that ‘‘implied waiver rests
on the ‘legal fiction’ that, if counsel had sufficient notice
of the jury instructions and was aware of their content,
an inference, or ‘assumption’ of fact . . . can be made
that counsel also was aware of any potential constitu-
tional defect that the instructions may have contained
and, with full understanding of that defect, opted to
refrain from objecting for strategic reasons.’’ (Citation
omitted; emphasis in original.) Id., 487 n.25. It is entirely
unreasonable to conclude that an inference based on
an assumption resting on a legal fiction can somehow
take precedence over an express, clarifying statement
by competent counsel.
Yet another reason to reject the court’s holding in
Kitchens stems from the manner in which the court in
that case would treat the alleged waiver of a claim of
plain error. Under Kitchens, even the most inexplicable
failure by counsel to object to a manifestly unconstitu-
tional jury charge will be deemed to represent counsel’s
strategic waiver of the claim if counsel had been given
a meaningful opportunity to review the charge. See, e.g.,
State v. Webster, supra, 308 Conn. 60–61 n.14 (Kitchens
waiver doctrine applies to jury instruction that allegedly
failed to set forth essential elements of crime charged);
cf. State v. Darryl W., 303 Conn. 353, 367 and n.15, 33
A.3d 239 (2012). Consistent with this approach, the
court in Kitchens observed that, ‘‘in keeping with these
principles . . . the finding of a valid waiver precludes
a finding that a jury instruction constitutes plain error
because a valid waiver means that there is no error to
correct.’’ State v. Kitchens, supra, 299 Conn. 474 n.18.
As this court repeatedly has explained, plain error is
error ‘‘of such monumental proportion that [it] threat-
en[s] to erode our system of justice and work a serious
and manifest injustice on the aggrieved party’’; (internal
quotation marks omitted) State v. Sanchez, 308 Conn.
64, 76–77, 60 A.3d 271 (2013); and, consequently, it is
reserved ‘‘for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings.’’ (Internal quotation marks
omitted.) Id., 77. Under this court’s pronouncement in
Kitchens, however, even an impropriety in the jury
charge that is so glaring and so harmful as to constitute
plain error will be found to have been waived by implica-
tion if the Kitchens notice requirement has been met.
In my view, it is patently unreasonable for a reviewing
court to infer that defense counsel knowingly and inten-
tionally waived the defendant’s right to challenge an
instruction that is so grossly and obviously deficient as
to constitute plain error.14
III
In sum, Kitchens forecloses claims of instructional
impropriety under Golding for reasons that have noth-
ing to do with waiver and everything to do with forfei-
ture. Indeed, it is perfectly clear that Kitchens is a rule
of forfeiture. If the trial court follows certain proce-
dures to the letter—the court provides counsel with
an exact copy of the jury charge twenty-four hours
in advance—counsel forfeits the defendant’s right to
object to the court’s charge if counsel does not object
in a timely manner. As the majority in Kitchens recog-
nized, however, forfeiture is not a proper basis for pre-
cluding Golding review of such claims because Golding
reflects the policy determination that, as a rule, a defen-
dant’s interest in obtaining review of an unpreserved
constitutional claim outweighs the interest of the state
and the court in enforcing procedural rules designed
to ensure that claims are made in a timely manner. See
State v. Kitchens, supra, 299 Conn. 474–75. Conse-
quently, in Kitchens, the court could not achieve the
result that it did without either overruling Golding as
applied to claims of instructional impropriety or adopt-
ing a forfeiture model in violation of Golding and
denominating it as a waiver model. The court chose
the latter. Although application of that model to the
present case leads inexorably to the conclusion that
the defendant waived his right to challenge the jury
instruction at issue, that conclusion is wrong because
Kitchens is wrong.15 Nevertheless, in the ordinary
course, I would be constrained to follow Kitchens and
to reach a contrary result, even though that result would
be contrary to Golding and to the important principles
on which Golding is founded. I see no reason to follow
Kitchens in the present case, however, because even
the majority cannot bring itself to do so.16 I therefore
concur in the result that the majority reaches.
1
Under Kitchens, when the state establishes that this notice requirement
has been met, a reviewing court must find an implied waiver if defense
counsel raises no objection to the charge at issue. See State v. Kitchens,
supra, 299 Conn. 483–84. In other words, the inference is necessary and
conclusive, rather than permissive.
2
As the majority explains, ‘‘[t]he defendant . . . claims [on appeal] that
the trial court improperly instructed the jury that it could find him guilty
under a theory of liability not set forth in the state’s information. Specifically,
the defendant argues that although the state alleged, in count one of its
long form information . . . that ‘during the commission of the crime [the
defendant] was armed with what he represented by his words or conduct
to be a firearm,’ in violation of General Statutes § 53a-134 (a) (4), the court
instructed the jury that the defendant could be found guilty if all the other
elements of robbery in the first degree had been proven, and any person
participating in the commission of the crime possessed a firearm.’’ (Emphasis
in original.) Text accompanying footnote 1 of the majority opinion.
3
See State v. Kitchens, supra, 299 Conn. 530–32 (Palmer, J., concurring).
4
Previously, I have supported the application of our holding in Kitchens
when its waiver principle governed. E.g., State v. Darryl W., 303 Conn. 353,
368, 33 A.3d 239 (2012); see also State v. Thomas W., 301 Conn. 724, 738–39,
22 A.3d 1242 (2011) (Palmer, J., dissenting) (disagreeing that Kitchens
barred claim of instructional impropriety under facts of case but acknowledg-
ing ‘‘obligat[ion] to abide by this court’s holding in Kitchens’’). I have done
so, however, not because I believe that Kitchens was correctly decided but,
rather, in consideration of the principle of stare decisis.
5
As the majority concedes, the defendant never has claimed that defense
counsel did not have a copy of the state’s requested jury instruction concern-
ing robbery in the first degree.
6
Kitchens aside, it bears noting that the majority, in concluding that
defense counsel had no obligation to review the proposed charge because
the court’s statement was confusing or ambiguous, sets a very bad precedent
with respect to what future courts may expect of counsel in such circum-
stances.
7
For the reasons set forth in part II of this opinion, this presumption in
Kitchens simply has no basis in law or fact. Because, however, the majority
purports to apply the Kitchens waiver doctrine to the present case, the
majority is obliged to apply the doctrine in accordance with Kitchens.
8
The majority makes a final, related argument, stating: ‘‘Given the trial
court’s statement that it would give the model instruction, ‘in essence, maybe
not exactly,’ it would not have been unreasonable for defense counsel to
presume, when he agreed to the proposed charge, that it would not be the
model instruction verbatim, but rather, would be a charge that largely was
based on the model instruction, yet was tailored to the information in the
present case so as to omit any portion that was inconsistent with that
document. Contrary to the information, however, the court failed to omit
the portion of the model instruction that permitted the jury to [find] the
defendant [guilty] on the basis of the display of a firearm by another partici-
pant in the crime. At the very least, the court’s explanation of the instruction
it would deliver was ambiguous, and, therefore, defense counsel’s assent
to it does not warrant a finding of waiver.’’ (Emphasis in original.) Footnote
10 of the majority opinion. This argument also has no merit. First, when
defense counsel agreed to the proposed charge, he indicated that he had
not yet read the charge, and, therefore, he did not know what it contained.
Of course, if he did know the content of the proposed charge, that actual
knowledge would satisfy the Kitchens notice requirement. Because counsel
did not know the substance of the proposed charge, he could not possibly
have harbored any belief as to how, if at all, if might subsequently be
modified. This fact alone defeats the majority’s contention.
The majority’s argument fails for a second reason. When the court stated
that the state’s proposed charge would be given, ‘‘in essence, maybe not
exactly,’’ the court merely was informing counsel that, although it might
not give the proposed charge word for word, the charge as given would
mirror the proposed charge in all material respects. However, under the
contrived scenario advanced by the majority—a scenario in which the major-
ity presumes that counsel might have believed that the proposed charge,
although constitutionally deficient, would somehow be transformed into a
constitutionally proper charge when it is given, albeit without any input
from counsel—the difference between the proposed charge and the actual
charge can hardly be characterized as immaterial or inconsequential. In fact,
the difference could not be more significant: the former is alleged to be
constitutionally deficient, whereas the latter is concededly constitutionally
proper. Thus, there is nothing in the trial court’s statement that its actual
charge would reflect the proposed charge, ‘‘in essence, maybe not exactly,’’
that even remotely supports the majority’s hypothesis that counsel might
have thought that the difference between the proposed charge and the actual
charge—a difference that the trial court stated would be immaterial and
inconsequential—nevertheless would be so material and so consequential as
to render the actual charge constitutionally proper despite the constitutional
deficiency of the proposed charge.
9
The majority also asserts that its refusal to find an implied waiver by
defense counsel in the present case ‘‘is consistent with the policies underly-
ing the [Kitchens] implied waiver doctrine,’’ first, because the defense gained
no apparent strategic benefit by failing to object to the court’s allegedly
improper charge and, second, because ‘‘expanding the implied waiver doc-
trine to situations [like the present one] in which a trial court fail[s] to put
the [defense] on notice of [the court’s] actual proposed jury instructions
would undermine [the] policy’’ articulated in Kitchens of ‘‘encourag[ing]
[the courts’ use of] procedures to facilitate [the] meaningful review of jury
instructions.’’ Neither of these arguments provides any support for the major-
ity’s conclusion; indeed, both beg the very question posed by this appeal.
The majority’s first point requires it to consider the merits of the defendant’s
claim of instructional impropriety, which, under Kitchens, is improper unless
the court first has determined that the claim was not impliedly waived. See
State v. Kitchens, supra, 299 Conn. 482–83. Furthermore, as the majority
concedes, this court observed in Kitchens that ‘‘a defendant may implicitly
waive objections to jury instructions even without ‘obvious tactical reasons’
. . . id., 481 . . . .’’ In other words, under Kitchens, it is irrelevant to the
issue of waiver whether defense counsel’s failure to object appears to have
been predicated on strategic considerations, which, as I explain in part II
of this opinion, is virtually never the case. The majority’s second contention
also is baseless because it presumes that defense counsel in the present
case did not get a meaningful opportunity to review the trial court’s jury
charge on robbery in the first degree, which is precisely the issue that the
majority must decide.
10
Under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), a
defendant is entitled to prevail on an unpreserved constitutional claim if
(1) the record is adequate for consideration of the claim, (2) the claim is of
constitutional magnitude, (3) the defendant can establish the constitutional
violation, and (4) the state is unable to demonstrate that the violation was
harmless beyond a reasonable doubt. Of course, the first prong of this test
is invariably satisfied in a case, like the present one, involving a claim of a
constitutionally deficient jury instruction.
11
As we explained in Kitchens, ‘‘[a] constitutional claim that has been
waived does not satisfy the third prong of the Golding test because, in such
circumstances, 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 . . . .’’ (Internal quotation
marks omitted.) State v. Kitchens, supra, 299 Conn. 467.
12
Judge Sheldon, writing for the Appellate Court in Holloway v. Commis-
sioner of Correction, 145 Conn. App. 353, 77 A.3d 777 (2013), recently
underscored this very point: ‘‘One of the most important responsibilities of
defense counsel in a criminal trial is to protect his client against conviction
of any charged offense without proof beyond a reasonable doubt of each
essential element of that offense. To ensure that the defendant receives such
basic protection from an unconstitutional conviction, counsel is afforded not
only the opportunity to submit requests to charge the jury on the essential
elements of each charged offense, but to object to any of the state’s requests
to charge that misdescribe those elements or misstate the state’s burden of
proof with respect to them. Furthermore, even if counsel submits no requests
to charge, he is afforded a final, fully effective opportunity to protect his
client’s right not to be convicted of any charged offense without proof
beyond a reasonable doubt of each essential element of that offense by
noting his exceptions to the trial court’s charge, immediately after the charge
is delivered to the jury. Regardless of counsel’s particular trial strategy on
behalf of his client, he simply has no excuse not to insist that the jury be
properly instructed on each essential element of every charged offense by
using one or more of the previously described procedural vehicles. Because
there is no conceivable tactical justification for defense counsel not to
preserve his client’s right not to be convicted without proof beyond a reason-
able doubt of each essential element of each charged offense by insisting
that proper jury instructions be given on those elements, counsel’s failure
to take timely steps to ensure that such instructions are given on each
charge to protect his client from an unwarranted conviction on that charge
constitutes deficient performance with respect to that charge . . . .’’ (Cita-
tion omitted.) Id., 366–67.
13
Although the majority in Kitchens rejected my contention that such an
express disavowal of waiver by defense counsel invariably would trump
any possible finding of implied waiver, I confess that I do not comprehend
the majority’s stated reasons for doing so. See generally State v. Kitchens,
supra, 299 Conn. 541–44 nn.9–10 (Palmer, J., concurring). Indeed, it seems
self-evident that an explicit, on-the-record statement by counsel in which
he explains that his failure to object to the court’s proposed charge should
not be construed as a waiver of any claim that has not been raised necessarily
will defeat any possible contrary inference with respect to counsel’s intent.
In any event, I urge defense counsel who wish to make it clear that they
do not intend to waive any such claims to expressly so inform the trial
court and then, if necessary, to test the efficacy of that disavowal on appeal.
In urging this approach, I intend no disrespect to the members of this court
who comprised the majority in Kitchens. Rather, I simply cannot fathom
how this court rationally could disregard such a representation by counsel
in favor of a broad and unyielding rule pursuant to which a knowing and
intentional waiver is irrebuttably presumed merely because counsel failed
to object to the charge following a reasonable opportunity to review it.
14
Indeed, subsequent to this court’s statement in Kitchens concerning
plain error, this court has questioned whether plain error is subject to waiver
under any circumstances. See State v. Darryl W., supra, 303 Conn. 371–72
n.17; see also State v. Webster, supra, 308 Conn. 64 (Rogers, C. J., concurring).
I also note that, in State v. Santiago, 305 Conn. 101, 49 A.3d 566 (2012),
this court recently stated that it left ‘‘for another day the question of whether
the [waiver] rule set forth in Kitchens is applicable [in death penalty] cases.’’
Id., 197 n.88. It is inconceivable to me that counsel in a death penalty case
reasonably could be presumed to waive a limitless number of constitutional
challenges merely because he did not raise them in the trial court. And yet,
under Kitchens, defense counsel’s failure to raise that universe of potential
objections after being afforded an adequate opportunity to review the pro-
posed charge would constitute a knowing and intelligent waiver of all of
those claims, such that the third prong of Golding would not be satisfied.
See footnote 10 of this opinion. If we were correct in Kitchens that such
conduct by counsel constitutes a knowing and intentional waiver in a noncap-
ital case, including those involving class A felonies such as murder and
kidnapping, why would that very same conduct not constitute a knowing
and intentional waiver in a capital case? I can think of no principled reason
to conclude that it would not. As absurd as it is to presume that defense
attorneys routinely engage in a knowing and intentional waiver of all possible
constitutional claims that they have not raised in noncapital cases—even
if they were to state expressly that that is not their intent—it is even more
absurd to presume that counsel in capital cases also do so.
15
Because the defendant has not asked us to reconsider our holding in
Kitchens, I discuss the case merely to explain why I agree with the majority
that this court should reverse the judgment of the Appellate Court, even
though that court properly applied Kitchens. I am hopeful, however, that,
sooner rather than later, this court will recognize that Kitchens was wrongly
decided and, when presented with the opportunity to do so, will overrule
Kitchens and restore Golding review for all cases in which it was intended,
including cases in which the record reflects nothing more than that defense
counsel failed to object to the charge after being afforded a meaningful
opportunity to review it.
16
Under the circumstances, it is both odd and ironic that the majority
takes me to task for declining to apply Kitchens faithfully to the present
case and to urge affirmance of the judgment of the Appellate Court, when
to do so would require me to vote to deprive the defendant of what I believe
is his right, under Golding, to challenge on appeal the constitutionality of
the court’s jury charge on robbery in the first degree. See footnote 10 of
the majority opinion (criticizing me for ‘‘[r]evisiting’’ Kitchens rule because
we have not been asked to overrule Kitchens in present case). Apparently,
the majority thinks that I should follow Kitchens to reach a result that, as
I have explained in this opinion and to a greater degree in my concurrence
in Kitchens, is absolutely wrong, even though, in order to avoid an injustice
in the present case, the majority itself refuses to apply the rule in Kitchens.
In other words, although the majority seeks to reach a fair and just result
by not following the rule in Kitchens, it would have me reach an unfair and
unjust result by following that rule. My response to the majority is simple:
stare decisis has its limits. Furthermore, when a court decides not to follow
precedent—as the majority does in the present case—it is imperative to
acknowledge that decision, and to explain it forthrightly, because the parties
and the public have a right to such principled decision making. It simply is
unacceptable for a court, like the majority in the present case, to assert
that it is following precedent when, in fact, it is not.
I note, finally, that, in striving to avoid the harshness and unreasonableness
of our holding in Kitchens for purposes of the present case, the majority
makes the same mistake that the court made in Kitchens: in both Kitchens
and in this case, the court identifies what it perceives to be the correct
result, and it then achieves that end by use of reasoning that falls of its
own weight. As a consequence, today, Kitchens spawns more bad law; in
an effort to circumvent Kitchens, the majority necessarily relies on argu-
ments that are logically indefensible. Despite the correctness of the result
in the present case, the manner in which the majority achieves it is itself
indefensible because, in the long run, the soundness of this court’s reasoning
is no less important than the results that it reaches.