State v. Davis ( 2014 )

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STATE v. DAVIS—SECOND CONCURRENCE
McDONALD, J., concurring. I agree with the majority
that the implied waiver rule set forth in State v. Kitch-
ens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011), should
not extend to the facts of the present case, where the
trial court failed to provide the defendant, Raquann
Tyrone Davis, with a written copy of the jury charge
and simply stated that the charge would be ‘‘in essence’’
the one provided on the Judicial Branch website. None-
theless, I write separately to acknowledge the concerns
that Justice Palmer has renewed regarding the under-
pinnings of the per se, irrefutable presumption set forth
in Kitchens and the question of whether an implied
waiver would arise even if defense counsel expressly
disavowed any knowledge of legitimate claims that
counsel could advance. I also note that recent decisions
questioning whether the implied waiver rule in Kitchens
applies to claims of plain error; see State v. Sanchez,
308 Conn. 64, 74–75 n.5, 60 A.3d 271 (2013); State v.
Webster, 308 Conn. 43, 64, 60 A.3d 259 (2013) (Rogers,
C. J., concurring); State v. Darryl W., 303 Conn. 353,
371–72 n.17, 33 A.3d 239 (2012); lend some support to
Justice Palmer’s contention that the rule in Kitchens
is, in effect, a rule of forfeiture, not waiver.1 Irrespective
of the merits of such concerns, I note that the defendant
has not asked us to consider modifying or overruling
Kitchens in the present case. Not having previously
weighed in on the merits of the question presented in
Kitchens, I believe I am obliged to apply that precedent.
Therefore, I reserve judgment on whether, faced with
such a request, we should reconsider that precedent.
I respectfully concur.
1
Relying on federal case law, which deems claims forfeited under certain
circumstances, the Appellate Court has noted: ‘‘[The] Plain Error Rule may
only be invoked in instances of forfeited-but-reversible error, United States
v. Olano, 507 U.S. 725, 731–33, [113 S. Ct. 1770], 123 L. Ed. 2d 508 (1993),
and cannot be used for the purpose of revoking an otherwise valid waiver.
This is so because if there has been a valid waiver, there is no error for us
to correct. See [id., 732–33]. . . . The distinction between a forfeiture of a
right (to which the Plain Error Rule may be applied) and a waiver of that
right (to which the Plain Error Rule cannot be applied) is that [w]hereas
forfeiture is the failure to make the timely assertion of a right, waiver is
the intentional relinquishment or abandonment of a known right. [Id., 733]
. . . . United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994).’’ (Internal
quotation marks omitted.) State v. Wilson, 52 Conn. App. 802, 809–10, 729
A.2d 778 (1999).