State v. Davis, 88 A.3d 445

Background

On July 12, 2008, Davis and others robbed a victim; guns were displayed by participants and property was taken. Davis was tried for first‑degree robbery (alleging he himself represented by words or conduct that he had a firearm).
The State’s long form information alleged robbery in the first degree under Conn. Gen. Stat. § 53a‑134(a)(4) based on the defendant’s own representation of a firearm, not on another participant’s display.
At the charge conference, the trial court said it would give the model robbery instruction (from the Judicial Branch website) "in essence, maybe not exactly," but did not provide the court’s actual proposed written charge to defense counsel.
The court’s final charge included language allowing conviction if "the defendant or another participant" displayed or threatened a firearm — broader than the allegation in the information.
Defense counsel did not object to the jury charge at trial; the Appellate Court concluded counsel implicitly waived the claim under State v. Kitchens and declined review.
The Supreme Court granted certification and reversed the Appellate Court, holding that implicit waiver under Kitchens did not apply because the court never provided the actual proposed charge and counsel therefore lacked a meaningful opportunity to review it.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Davis)	Held
Whether defendant implicitly waived instructional challenge under State v. Kitchens	The trial court’s statement that it would give the model charge "in essence" and the availability of the model on the Judicial Branch website gave defense counsel notice; failure to object amounted to implied waiver	Trial counsel lacked a meaningful opportunity to review the court’s actual proposed charge because no written draft of the court’s charge was provided and the court’s statement was ambiguous	No implied waiver: waiver doctrine in Kitchens requires the court to provide the proposed charge and meaningful review; those conditions were not met
Whether the court’s instruction impermissibly broadened the theory of liability beyond the information	Assent to the instruction and the statute’s inclusion of accessory liability meant no prejudice; model instruction is appropriate	Jury was allowed to convict on an accomplice‑display theory not pleaded in the information, prejudicing Davis’s right to be informed of the charge	Court must conform instructions to the information; because waiver not established, Appellate Court must review the instructional error claim on the merits
Whether the State’s request to charge or the Judicial Branch model sufficed as a substitute for the court’s proposed charge	The State’s written request and public model were the functional equivalent of the court’s draft	Kitchens requires the trial court itself to provide its proposed instructions to defense counsel; the prosecution’s request is not a substitute	The State’s request and the online model are not substitutes for the trial court’s actual proposed charge for Kitchens waiver purposes

Key Cases Cited

State v. Kitchens, 299 Conn. 447 (2011) (implied waiver doctrine: waiver may be inferred when the court provides proposed instructions, allows meaningful review, solicits comments, and counsel accepts them)
State v. Golding, 213 Conn. 233 (1989) (standard for appellate review of unpreserved constitutional claims)
State v. Brown, 299 Conn. 640 (2011) (no waiver where counsel could not reasonably have been aware in advance of an instructional deficiency)
State v. Mungroo, 299 Conn. 667 (2011) (standard of review for waiver claims and role of providing proposed instructions)
State v. Webster, 308 Conn. 43 (2013) (post‑Kitchens decisions finding overnight review of court’s proposed charges sufficed where the actual proposed charges were provided)
State v. Peterson, 13 Conn. App. 76 (1987) (trial court cannot, by instruction, change the nature of the crime charged in the information)
State v. Gradzik, 193 Conn. 35 (1984) (instruction may not alter the charged offense)