State v. Ramon A. G. ( 2021 )

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STATE OF CONNECTICUT v. RAMON A. G.*
(SC 20358)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.**
Syllabus
Convicted of assault in the third degree, the defendant appealed to the
Appellate Court, claiming that the trial court improperly had declined
to instruct the jury on the defense of personal property with respect to
the assault charge. The victim, who had been romantically involved
with the defendant, visited with the defendant during a gathering at his
mother’s apartment. The victim surreptitiously took a set of car keys
belonging to the defendant’s mother from that apartment and began to
walk home. The victim threw the keys into a bush along her route home,
and, shortly thereafter, the defendant emerged from a car, physically
attacked her, rummaged through her backpack for his mother’s keys,
and left the area with the backpack. At trial, the defendant filed a written
request to charge, seeking an instruction on the defense of personal
property pursuant to statute (§ 53a-21). The trial court held a formal
charging conference, and defense counsel did not voice any concern
with respect to the court’s draft instructions, which limited the defense
of personal property instruction to the charge of second degree robbery,
of which the defendant was found not guilty. The Appellate Court
affirmed the judgment of conviction, concluding, inter alia, that the
defendant’s written request to charge was insufficient to preserve his
claim that the trial court improperly failed to instruct the jury on the
defense of personal property with respect to the assault charge and that
the defendant implicitly waived appellate review of that claim under
State v. Kitchens (299 Conn. 447). On the granting of certification, the
defendant appealed to this court. Held:
1. The Appellate Court correctly concluded that the defendant’s claim of
instructional error was unpreserved: the trial court clearly believed that
it had satisfied the defendant’s written request to charge on the defense
of personal property, as that court granted the request without qualifica-
tion, provided multiple drafts of its instructions to the parties, and
expressly reviewed the proposed defense of personal property instruc-
tion with counsel during a formal charging conference, and this court
could not conclude that the trial court and the state were given fair
notice of the fact that the defendant took issue with this particular
aspect of its instructions on assault; moreover, although the applicable
rule of practice (§ 42-16) allows a defendant to preserve a claim of
instructional error by filing a written request to charge or by taking an
exception on the record, the information conveyed in connection with
either of these alternatives must be specific enough to afford the trial
court and the state fair notice of the defect subsequently claimed on
appeal, and the record contained no indication that the defense ever
brought to the trial court’s attention that the charge on the defense of
personal property should have been given with respect to the assault
charge.
2. The Appellate Court correctly concluded that the defendant waived his
unpreserved claim of instructional error: the trial court granted the
defendant’s request to charge without qualification, expressly indicating
that it intended to incorporate that request in its proposed instructions,
the court then drafted its charge, distributed copies to counsel, and
reviewed the language it had proposed on the defense of personal prop-
erty during a formal charging conference, during which the court high-
lighted the location of the relevant instruction and discussed the content
of the instruction with counsel, and, throughout the proceedings, the
defense did not voice any concern regarding the location, scope or
structure of that particular charge; accordingly, the defendant, through
counsel, engaged in conduct demonstrating his assent to the manner
in which the court incorporated his request to charge; moreover, the
defendant possessed a tactical reason not to pursue a defense of personal
property instruction with respect to the charge of assault, as the defen-
dant’s testimony was that the victim was the aggressor and that any
contact between them was merely the result of his attempts to escape,
and, thus, the defendant could reasonably have decided to forgo the
defense of personal property instruction with respect to the assault
charge because his account of the events would have been conceptually
inconsistent with a claim that he had intentionally, but justifiably, used
force against the victim to regain possession of the car keys.
Argued May 6—officially released July 28, 2020**
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of robbery in the
first degree, assault in the second degree, and criminal
violation of a protective order and, in the second part,
with having committed an offense while on release,
brought to the Superior Court in the judicial district of
New Britain, where the first part of the information was
tried to the jury before Keegan, J.; verdict of guilty of
the lesser included offense of assault in the third degree
and criminal violation of a protective order; thereafter,
the defendant was presented to the court on a plea of
guilty to the commission of an offense while on release;
judgment in accordance with the verdict and the plea,
from which the defendant appealed to the Appellate
Court, Keller, Elgo and Moll, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Affirmed.
Jennifer B. Smith, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Elizabeth Moseley, senior assistant state’s
attorney, for the appellee (state).
Opinion
KAHN, J. The defendant, Ramon A. G., appeals from
the judgment of the Appellate Court affirming the judg-
ment of conviction, rendered after a jury trial, of, among
other crimes, assault in the third degree in violation of
General Statutes § 53a-61.1 The defendant claims that
the Appellate Court incorrectly concluded that he had
(1) failed to preserve his claim that the trial court vio-
lated his constitutional rights by omitting a defense of
personal property instruction with respect to the charge
of assault, and (2) waived that unpreserved instruc-
tional claim. See State v. Ramon A. G., 190 Conn. App.
483, 211 A.3d 82 (2019). We disagree with the defendant
and, accordingly, affirm the judgment of the Appel-
late Court.
The following facts and procedural history are rele-
vant to our consideration of the present case. The victim
became romantically involved with the defendant in
August, 2012. That relationship deteriorated over the
months that followed, and, on March 18, 2013, a judge of
the Superior Court issued a protective order prohibiting
the defendant from having any contact with the victim.
Although the defendant had lived with the victim pre-
viously, on that particular date, he was residing in his
mother’s apartment. Notwithstanding the existence of
the protective order, the victim visited with the defen-
dant during a gathering at his mother’s apartment
approximately four days later.2 The victim surrepti-
tiously took a set of car keys belonging to the defen-
dant’s mother from that apartment and began to walk
home around 10:45 p.m.3 At trial, the victim admitted
to deliberately throwing those keys into a bush along
her route home because she ‘‘felt like something was
gonna happen . . . .’’
Testimony from the victim and the defendant pro-
vided different accounts of the events that followed.
The victim testified that she was carrying a backpack
that night containing, among other things, her cell
phone and some cash. The victim stated that, after she
had discarded the keys, the defendant emerged from a
nearby vehicle and proceeded to attack her. Specifi-
cally, the victim told the jury that the defendant was
angry and began swinging her around by her backpack.
The victim testified that she fell to the ground and that
the defendant then kicked her repeatedly while wearing
a set of tan Timberland boots. According to the victim,
the defendant ultimately took the backpack and rum-
maged through it for his mother’s keys, spilling her cell
phone and some other contents on the ground. The
victim testified that the defendant then left with her
backpack. A bystander who witnessed this confronta-
tion called 911.4 The victim was taken to the hospital,
treated, and released the following morning.5 The victim
stated that, after she returned home, the defendant sent
her text messages asking to exchange the backpack for
his mother’s car keys. The victim testified that, although
the backpack was ultimately returned, the cash that
had been inside of it was gone.
The defendant, against the advice of counsel, testified
in his own defense at trial. The defendant told the jury
that he exited a vehicle driven by a friend, approached
the victim while she was on the sidewalk, and said
‘‘please give me my mother’s keys.’’ The defendant
stated that the victim ‘‘began to swing’’ at him, that he
grabbed her hands to stop her, and that he ended up
falling on the ground repeatedly because of ice. The
defendant testified that he tried to get up to leave but
that the victim grabbed his foot to impede him. The
defendant testified that he eventually ‘‘shook [his] foot
loose,’’ crossed the street, got into his friend’s car, and
left. The defendant indicated that he did not take any-
thing from the victim that evening and that he had been
wearing sneakers, not boots. The defendant told the
jury that the victim’s injuries must have been caused by
his attempts to escape and that he ‘‘never intentionally
assaulted her . . . .’’6
The defendant had been arrested and charged with
robbery in the first degree in violation of General Statutes
§ 53a-134 (a) (3), assault in the second degree in viola-
tion of General Statutes § 53a-60 (a) (2), and criminal vio-
lation of a protective order in violation of General Stat-
utes § 53a-223 (a). On the first day of trial, the defendant
filed a one page request to charge, seeking an instruc-
tion on the defense of personal property pursuant to
General Statutes § 53a-21. The defendant did not iden-
tify the evidentiary basis for this request or indicate to
which charges it related. Instead, the defendant merely
stated that ‘‘[t]he evidence supports this request.’’
The following day, the trial court indicated that it
had received the defendant’s request and that it wanted
to discuss its preliminary instructions with counsel in
chambers. After taking a recess, the trial court made
the following statement on the record: ‘‘[W]e’ve had the
opportunity to have a preliminary discussion on the
jury charge. And I have given to each attorney a very
rough draft of what I call my overinclusive jury charge.
I intend to take out the areas that do not apply in this
case and then to also work further on the charges with
respect to the crimes that are alleged in this case. And
I intend to send this out via e-mail tonight to the two
attorneys so that you will have that for review tonight.
I am going to grant the defendant’s request to charge
the jury on defense of personal property. I will put
that in there. And [if the prosecutor has] any objections
to it, [she] can do that formally tomorrow on the
record.’’ (Emphasis added.) A set of draft instructions
subsequently produced by the trial court contained a
defense of personal property instruction only with
respect to the charge of robbery in the first degree. See
footnote 8 of this opinion (quoting in part trial court’s
instruction to jury).
The trial court held a formal charging conference fol-
lowing the close of evidence on May 18, 2016. Defense
counsel indicated that he had received a copy of the
court’s draft instructions and had been able to review it.
The court specifically indicated that it had included a
defense of personal property instruction as requested by
the defendant and then noted the particular page on which
that instruction appeared. The state then asked if the
court, in crafting the instruction for defense of personal
property, had drawn from particular language from the
model criminal jury instructions found on the Judicial
Branch website. See Connecticut Criminal Jury Instruc-
tions § 2.8-5 (B), available at https://www.jud.ct.gov/JI/
Criminal/Criminal.pdf (last visited July 27, 2020). The
trial court responded in the affirmative and then asked
defense counsel whether he had noticed its use of the
model instruction. Defense counsel responded, ‘‘I did.’’
After the court addressed certain other issues related to
its proposed instructions, it asked whether the parties
had ‘‘[a]nything else.’’ Defense counsel replied: ‘‘No, Your
Honor . . . I’m all set, Your Honor. Thank you.’’ The
trial court then asked defense counsel whether he had
been given sufficient time to review the draft instruc-
tions, and defense counsel responded, ‘‘[y]es, Your
Honor.’’
During his closing argument, defense counsel stated
that the defense of personal property ‘‘is a complete
defense to robbery in the first degree’’ and then reviewed
the elements of that defense in detail. Although defense
counsel briefly mentioned the stolen car keys when
discussing assault and criminal violation of a protective
order, he did not explicitly mention the defense of per-
sonal property with respect to those charges.7 Consis-
tent with its draft instructions, the final version of the
court’s charge, electronic copies of which were pro-
vided to counsel in advance, again limited the defense
of personal property instruction to the robbery count.8
After charging the jury, the trial court asked whether
there were any objections, and defense counsel replied:
‘‘No objections, Your Honor, at all.’’
On May 19, 2016, the jury returned a verdict finding
the defendant not guilty of robbery and assault in the
second degree, but guilty of the lesser included offense
of assault in the third degree, and guilty of criminal
violation of a protective order. The trial court rendered
a judgment of conviction in accordance with that ver-
dict and, on August 3, 2016, imposed a concurrent sen-
tence of seven years of imprisonment for criminal viola-
tion of a protective order and one year of imprisonment
for assault in the third degree, with three years of spe-
cial parole.
The defendant thereafter appealed to the Appellate
Court, claiming, inter alia, that ‘‘the trial court improp-
erly declined to furnish a jury instruction on the defense
of personal property with respect to . . . assault
. . . .’’ State v. Ramon A. G., supra, 190 Conn. App.
484. The Appellate Court concluded that the defendant’s
written request to charge was insufficient to preserve
his particular claim of error and that the defendant had
implicitly waived appellate review of that claim under
State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011).
State v. Ramon A. G., supra, 500, 503. After considering
an unrelated claim of error,9 the Appellate Court ulti-
mately affirmed the trial court’s judgment. Id., 510.
We subsequently granted the defendant’s petition for
certification to appeal, limited to the following issues:
(1) ‘‘Did the Appellate Court correctly conclude that
the defendant’s claim of instructional error was not
preserved?’’ And (2) ‘‘[i]f the answer to the first question
is [yes], did the Appellate Court incorrectly conclude
that the defendant had implicitly waived his instruc-
tional claim pursuant to State v. Kitchens, [supra, 299
Conn. 447]?’’10 (Internal quotation marks omitted.) State
v. Ramon A. G., 333 Conn. 909, 215 A.2d 735 (2019).
I
We begin by examining the issue of whether the
Appellate Court correctly concluded that the defen-
dant’s claim of instructional error was unpreserved.
The defendant’s sole contention with respect to this
issue is that his written request to charge adequately
notified the trial court of the particular claim he now
advances on appeal, namely, that a defense of personal
property instruction should have been given with
respect to the charge of assault. Specifically, the defen-
dant claims that he complied with our rules of practice;
see Practice Book § 42-16; and that any ambiguity relat-
ing to the scope of his request to charge should be
resolved in his favor pursuant to State v. Ramos, 271
Conn. 785, 801, 860 A.2d 249 (2004). For the reasons
that follow, we agree with the Appellate Court’s conclu-
sion that the defendant’s claim of instructional error
was unpreserved.
It is axiomatic that the appellate tribunals of this
state are not bound to consider claims of law that are
not distinctly raised at trial. See Practice Book § 60-5;
see also, e.g., State v. Edwards, 334 Conn. 688, 703,
224 A.3d 504 (2020). ‘‘[B]ecause the sine qua non of
preservation is fair notice . . . the determination of
whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated below with
sufficient clarity to place the trial court on reasonable
notice of that very same claim.’’ (Internal quotation
marks omitted.) State v. Dixon, 318 Conn. 495, 500, 122
A.3d 542 (2015). ‘‘These requirements are not simply
formalities. They serve to alert the trial court to poten-
tial error while there is still time for the court to act.
. . . Assigning error to [the trial court’s] rulings on the
basis of objections never raised at trial unfairly subjects
the court and the opposing party to trial by ambush.’’
(Internal quotation marks omitted.) State v. Jorge P.,
308 Conn. 740, 753, 66 A.3d 869 (2013).
In the present case, the trial court was clearly
operating under the belief that it had satisfied the defen-
dant’s written request to charge on the defense of per-
sonal property. The trial court granted that request with-
out qualification, provided multiple drafts of its instruc-
tions to the parties, and then expressly reviewed the
proposed defense of personal property instruction with
counsel during a formal charging conference. On the
basis of the record presently before us, we simply can-
not conclude that the trial court and the state were
given fair notice of the fact that the defendant took
issue with this particular aspect of its instructions on
assault. See State v. Ross, 269 Conn. 213, 335–36, 849
A.2d 648 (2004) (‘‘the essence of the preservation
requirement is that fair notice be given to the trial court
of the party’s view of the governing law and of any
disagreement that the party may have had with the
charge actually given’’ (emphasis in original)); cf. Begley
v. Kohl & Madden Printing Ink Co., 157 Conn. 445,
453–54, 254 A.2d 907 (1969) (‘‘The trial court specifically
corrected this portion of the charge after the plaintiffs
excepted to it, and no further exception was taken
by the plaintiffs. There is therefore no claim of error
properly before us.’’).
The defendant correctly notes that our rules of prac-
tice permit criminal defendants to preserve claims of
instructional error by filing a timely written request to
charge. See Practice Book § 42-16;11 see also, e.g., State
v. Paige, 304 Conn. 426, 433–34, 40 A.3d 279 (2012).
Appellate decisions, however, consistently reject the
suggestion that this provision allows defendants to rely
on general or ambiguous language to preserve more
specific claims of error. See State v. Ramos, 261 Conn.
156, 170–71, 801 A.2d 788 (2002) (‘‘[i]t does not follow,
however, that a request to charge addressed to the
subject matter generally, but which omits an instruction
on a specific component, preserves a claim that the
trial court’s instruction regarding that component was
defective’’ (emphasis omitted)), overruled in part on
other grounds by State v. Elson, 311 Conn. 726, 91 A.3d
862 (2014); State v. Carter, 198 Conn. 386, 395 and n.6,
503 A.2d 576 (1986) (written request to charge applying
statutory definition of insanity was insufficient to pre-
serve defendant’s claim that additional instructions on
common-law definitions was improper); see also State
v. Johnson, 165 Conn. App. 255, 284–85, 138 A.3d 1108(‘‘Under either method, some degree of specificity is
required, as a general request to charge or exception
will not preserve specific claims. . . . Thus, a claim
concerning an improperly delivered jury instruction will
not be preserved for appellate review by a request to
charge that does not address the specific component
at issue . . . or by an exception that fails to articulate
the basis relied upon on appeal with specificity.’’ (Cita-
tions omitted.)), cert. denied, 322 Conn. 904, 138 A.3d
933 (2016); State v. Cook, 8 Conn. App. 153, 156–57,
510 A.2d 1383 (1986) (exception to charge on different
ground was not sufficient to preserve alternative claim
of error with respect to same instruction). Put differ-
ently, although § 42-16 allows a defendant to preserve
a claim of instructional error by filing a written request
to charge or by taking an exception on the record,
the information conveyed by either of these alternative
means must be specific enough to afford the trial court
and the state fair notice of the particular defect subse-
quently claimed on appeal.12
The defendant claims that State v. Ramos, supra, 271
Conn. 785, established a legal presumption that requires
this court to resolve any ambiguity regarding the scope
of his written request to charge in his favor. We disagree.
The defendant in that case, who was charged with
assault in the second degree and having a weapon in
a motor vehicle, requested that the trial court instruct
the jury on the affirmative defense of self-defense. Id.,
787, 800. As in the present case, that request did not
specify the count or counts at issue. Id., 800. The state
then filed a supplemental request to charge asking the
trial court to affirmatively instruct the jury that self-
defense was not a defense to the crime of having a
weapon in a motor vehicle. Id. After considering the
matter, the trial court in that case ultimately ‘‘gave a
self-defense instruction with respect to the assault
charge, but . . . instructed the jury that self-defense
was not a defense to the charge [of having a weapon
in a motor vehicle].’’ Id. On appeal, we held that the
defendant’s challenge to the latter was preserved, con-
cluding that, ‘‘[a]lthough . . . the record leaves some
doubt as to whether the defendant’s general request to
charge was adequate to place the trial court on notice
that he believed that the claim of self-defense applied
to both charges, we read the failure to specify as an
indication that it applied to both charges . . . .’’ Id.,
801.
We agree with the Appellate Court’s assessment that
our decision in State v. Ramos, supra, 271 Conn. 785,
is distinguishable for two distinct reasons. First, the
defendant in the present case affirmatively disclaims
any argument that a defense of personal property
instruction should have been given with respect to the
charge of criminal violation of a protective order. As a
result of that concession, the defendant cannot main-
tain that his submission was a blanket request that
should have been read to apply to all of the charges
against him. See State v. Ramon A. G., supra, 190 Conn.
App. 496 and n.9. Second, the trial court in State v.
Ramos, supra, 801, expressly considered the question
of whether to instruct the jury on self-defense with
respect to the crime of having a weapon in a motor
vehicle and purposely declined to provide such an
instruction. As previously noted in this opinion, ‘‘the
sine qua non of preservation is fair notice . . . .’’ (Inter-
nal quotation marks omitted.) State v. Dixon, supra,
318 Conn. 500. The record before us contains no indica-
tion that the particular instructional error claimed in
the present appeal—that a charge on the defense of
personal property should have been given with respect
to the charge of assault—was ever brought to the trial
court’s attention, and, accordingly, we conclude that
the defendant’s claim was not preserved.13
II
We turn next to the question of whether the Appellate
Court correctly concluded that the defendant waived
this unpreserved claim of instructional error. We note
at the outset that this question raises an issue of law
over which we exercise plenary review. See, e.g., State
v. Davis, 311 Conn. 468, 477, 88 A.3d 445 (2014).
Although we agree with the Appellate Court’s finding
of waiver, we reach that conclusion on the basis of
defense counsel’s conduct with respect to the instruc-
tion at issue, rather than his general review and accep-
tance of the trial court’s proposed instructions as a
whole pursuant to Kitchens.
It is well established that ‘‘[a] constitutional claim
that has been waived does not satisfy the third prong
of [State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015)]14 because, in such cir-
cumstances, 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 . . . .’’ (Footnote added;
internal quotation marks omitted.) State v. McClain,
324 Conn. 802, 809, 155 A.3d 209 (2017). ‘‘[W]aiver is an
intentional relinquishment or abandonment of a known
right or privilege. . . . It involves the idea of assent,
and assent is an act of understanding. . . . The rule is
applicable that no one shall be permitted to deny that
he intended the natural consequences of his acts and
conduct. . . . In order to waive a claim of law . . .
[i]t is enough if he knows of the existence of the claim
and of its reasonably possible efficacy. . . . Connecti-
cut courts have consistently held that when a party
fails to raise in the trial court the constitutional claim
presented on appeal and affirmatively acquiesces to the
trial court’s order, that party waives any such claim
[under Golding].’’ (Citation omitted; internal quotation
marks omitted.) Id. ‘‘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.’’ (Internal quotation marks omitted.)
Id., 810.
We need not rely on the central holding of Kitchens
in order to conclude that the defendant waived his claim
of instructional error.15 The trial court in the present
case granted the defendant’s request to charge without
qualification and expressly indicated that it intended
to incorporate that request in its proposed instructions.
The trial court then drafted its charge, distributed elec-
tronic copies to counsel, and reviewed the language it
had proposed on the defense of personal property dur-
ing a charging conference with counsel, held on the
record. During that conference, the trial court not only
highlighted the precise location of the relevant instruc-
tion, but also engaged in a discussion with counsel
regarding its content. Throughout these proceedings,
the defense did not voice any concern regarding the
location, scope, or structure of that particular charge.
We conclude that the defendant, through counsel,
engaged in conduct clearly demonstrating his assent to
the manner in which the trial court incorporated his
request to charge. See State v. Fabricatore, 281 Conn.
469, 481–82, 915 A.2d 872 (2007) (defendant waived
claim that trial court improperly included duty to retreat
exception by failing to object to state’s original request
to charge, failing to object to instruction as given,
expressing satisfaction with instruction, failing to
object at trial when state referred to duty to retreat in
closing argument, and referring to duty to retreat in his
own closing argument); see also State v. Holness, 289
Conn. 535, 542, 544–45, 958 A.2d 754 (2008) (unpre-
served constitutional claim was waived when defendant
expressed satisfaction with limiting instruction and
took no exception). Although the burden of proof with
respect to the defense of personal property ultimately
falls to the state to disprove that defense, the defendant
retained the responsibility of asserting that defense in
the first instance. See State v. Ebron, 292 Conn. 656,
695, 975 A.2d 17 (2009) (‘‘assertion and proof of the
justification defense . . . remains the defendant’s
responsibility in the first instance’’), overruled in part
on other grounds by State v. Kitchens, 299 Conn. 447,
10 A.3d 942 (2011).
A finding of waiver in the present case is further
supported by the fact that the defendant possessed a
tactical reason not to pursue a defense of personal
property instruction with respect to the charge of
assault. See State v. Kitchens, supra, 299 Conn. 479–80
(noting previous line of cases finding waiver ‘‘when
defense counsel did not object to the challenged instruc-
tion for what clearly appeared . . . to have been tacti-
cal reasons’’). The defendant’s testimony, which was
echoed by defense counsel during closing argument,
was that the victim was the aggressor and that any
contact between them was merely the result of his
attempts to escape. The defendant specifically testified
that the victim’s injuries must have occurred when he
tried to shake his leg loose from the victim’s grasp and
that he had ‘‘never intentionally assaulted’’ the victim.
The defendant could reasonably have decided to forgo
the defense of personal property instruction with
respect to the charge of assault because his own sworn
account of the events on the night in question would
have been conceptually inconsistent with a legal claim
that he had intentionally, but justifiably, used force
against the victim in order to regain possession of his
mother’s car keys. See, e.g., Santiago v. Commissioner
of Correction, 125 Conn. App. 641, 647, 9 A.3d 402 (2010)
(‘‘[t]he petitioner’s counsel determined that, as a matter
of trial strategy, presenting inconsistent, alternative
defenses of intoxication and self-defense risked alie-
nating the jury’’), cert. denied, 300 Conn. 910, 12 A.3d
1006 (2011).
For these reasons, we agree with the Appellate
Court’s ultimate conclusion that the defendant waived
his claim that the trial court improperly omitted an
instruction on the defense of personal property with
respect to the charge of assault. As a result, the defen-
dant’s conviction must stand.16
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
** The listing of justices reflects their seniority status on this court as of
the date of oral argument.
*** July 28, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Although the defendant was also convicted of criminal violation of a
protective order in violation of General Statutes § 53a-223 (a), defense coun-
sel expressly abandoned any challenge to that conviction during oral argu-
ment before this court.
2
The precise series of events preceding the victim’s arrival was disputed
at trial. The victim testified that the defendant had sent her text messages
asking to meet up and that, although she was initially hesitant, she eventually
agreed. The defendant testified that the victim had called him that day and
that, after he declined to speak, she had ‘‘demanded to come to the apartment
. . . .’’ This discrepancy, however, is not relevant to the issues in the pres-
ent appeal.
3
The defendant testified that his mother was suffering from terminal
cancer, that he had been using her vehicle to visit her at the hospital, and
that he did not have another set of keys to that vehicle.
4
A recording of the 911 call placed by the bystander was admitted into
evidence as a full exhibit at trial and was played for the jury. That same
bystander subsequently testified at trial as follows: ‘‘I looked out the window
and . . . I saw some kicking. I saw [the female] on the ground, and I saw
someone—the male, you know, really giving it to her, stomping on her.’’
5
At trial, the state introduced into evidence medical records and photo-
graphs detailing the victim’s various injuries.
6
Officer Marcus Burrus of the New Britain Police Department arrived at
the scene shortly after this confrontation in response to the 911 call. See
footnote 4 of this opinion. Burrus testified at trial that, while he and the
victim were waiting for medical assistance to arrive, the victim’s cell phone
received an incoming call from the defendant. Burrus stated that, during
this call, which he had answered, the defendant admitted to confronting
the victim about his mother’s car keys but denied ever touching the victim.
7
In arguing that the jury should find the defendant not guilty of assault,
defense counsel emphasized the defendant’s testimony that any contact was
unintentional and again posited that the defendant ‘‘was just trying to shake
[his leg] to get away.’’
8
The trial court instructed the jury in relevant part: ‘‘The evidence in this
case raises the issue of the use of force against another to defend personal
property. This defense applies to the charge of robbery in the first degree.
After you have considered all the evidence in this case on the charge of
robbery in the first degree, if you find that the state has proved each element
beyond a reasonable doubt, then you must go on to consider whether or
not the defendant acted justifiably in the defense of personal property. In
this case, you must consider this defense in connection with count one of
the information.’’ The present appeal does not require this court to address
the propriety of such an instruction in connection with a robbery charge.
Cf. State v. Smith, 317 Conn. 338, 354, 118 A.3d 49 (2015) (‘‘a defendant
who used unreasonable force to take his own property (or, indeed, a third
person’s property) from another person in order to prevent an attempted
larceny could not be charged with robbery in the first instance, but could
be charged only with an offense involving the use or threatened use of
physical force, such as assault or unlawful restraint’’).
9
The defendant also claimed that he was deprived of his constitutional
right to a fair trial as a result of alleged prosecutorial impropriety. State v.
Ramon A. G., supra, 190 Conn. App. 484. The Appellate Court’s resolution
of that claim is not at issue in the present appeal.
10
We note that the second certified question, as originally drafted, con-
tained a scrivener’s error. For the sake of clarity, we have reformulated that
question to conform to the issues actually presented in this appeal. See,
e.g., State v. Ouellette, 295 Conn. 173, 183–84, 989 A.2d 1048 (2010).
11
Practice Book § 42-16 provides in relevant part: ‘‘An appellate court
shall not be bound to consider error as to the giving of, or the failure to
give, an instruction unless the matter is covered by a written request to
charge or exception has been taken by the party appealing immediately after
the charge is delivered. Counsel taking the exception shall state distinctly
the matter objected to and the ground of exception. . . .’’
12
Our rules of practice also expressly require written requests to charge
to detail the evidentiary basis for the requested instruction. Practice Book
§ 42-18 (a). We note that the defendant’s written request failed to do so.
13
Having reached this conclusion, we need not consider whether the
defendant would prevail under the heightened standard set forth in State
v. Paige, supra, 304 Conn. 443, and State v. Johnson, 316 Conn. 45, 54–55,
111 A.3d 436 (2015).
14
‘‘Under Golding, it is well settled that 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 fundamental right; (3) the alleged constitutional violation . . .
exists and . . . 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.’’ (Internal
quotation marks omitted.) State v. McClain, 324 Conn. 802, 809 n.5, 155
A.3d 209 (2017).
15
In Kitchens, this court concluded 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.’’ State v. Kitchens, supra,299 Conn. 482–83. In the present case, the Appellate Court concluded that
this standard was satisfied because the trial court solicited input from
defense counsel on multiple occasions and distributed various drafts of its
proposed instructions. State v. Ramon A. G., supra, 190 Conn. App. 503.
Although the record before us contains ample evidence that may have
supported a finding of waiver under Kitchens, we need not look to defense
counsel’s mere review and acceptance of the trial court’s instructions as a
whole to support a finding of a waiver. Because we conclude that the
defendant, through counsel, engaged in conduct that was itself sufficient
to establish waiver under our previously existing jurisprudence; see, e.g.,
State v. Fabricatore, 281 Conn. 469, 481–82, 915 A.2d 872 (2007); the present
appeal simply does not call for an application of the rule pronounced in
Kitchens.
16
The defendant also requests relief under the plain error doctrine. See
Practice Book § 60-5. Although this court has recently stated that an implied
waiver under Kitchens does not necessarily preclude review under the plain
error doctrine; see State v. McClain, supra, 324 Conn. 805; our decision in
that case does not explicitly state whether its holding extends to other forms
of instructional waiver. Cf. Mozell v. Commissioner of Correction, 291 Conn.
62, 70, 967 A.2d 41 (2009) (‘‘a valid waiver . . . thwarts plain error review’’
(internal quotation marks omitted)). Even if we were to assume that plain
error review remains available to the defendant as a procedural matter,
however, we would decline to invoke it under the facts of this particular
case. The plain error doctrine is an ‘‘extraordinary remedy used by appellate
courts 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.
. . . [I]t 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 reversal of the trial court’s judgment,
for reasons of policy.’’ (Internal quotation marks omitted.) State v. Myers,
290 Conn. 278, 289, 963 A.2d 11 (2009). Because the defendant’s own account
of the events on the night in question indicates that he did not use force
against the victim in an attempt to regain his mother’s keys, we can perceive
of no manifest injustice in the trial court’s failure to instruct the jury with
respect to defense of personal property in connection with the assault
charge.