State v. Herring, 147 A.3d 653

Defendant Terry P. Herring was convicted by a jury of (1) conspiracy to distribute ≥1 kg of a cannabis-type substance and (2) possession of ≥1 kg of a cannabis-type substance with intent to sell as an accessory.
The Appellate Court affirmed Herring’s convictions but held Herring waived a claim that the trial court’s jury instructions misstated the mens rea (knowledge) element under the waiver rule of State v. Kitchens.
Herring sought review in the Connecticut Supreme Court asking that Kitchens be overruled so his unpreserved instructional claim could be reviewed under State v. Golding, arguing the instructions lowered the State’s burden by using an objective “reasonable person” formulation for “knowingly.”
The certified question limited review to whether Kitchens should be overruled to allow Golding review and, if so, whether Herring would prevail under Golding.
The Supreme Court, relying on its recent decision in State v. Bellamy, declined to overrule Kitchens and therefore refused to entertain Herring’s Golding-based challenge; it also declined to reach plain error review as outside the scope of the certified question.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether this court should overrule the Kitchens waiver rule to permit review of an unpreserved claim of instructional impropriety	State: Kitchens remains controlling; defendant waived the claim	Herring: Kitchens should be overruled so Golding review of the unpreserved instructional error claim is allowed	Court: Declines to overrule Kitchens (Kitchens remains viable)
If Kitchens is overruled, whether Herring would prevail under Golding on the instructional error claim	State: Instructional error claim is waived and not reviewable; instructions did not create reversible error	Herring: Jury instructions used objective "reasonable person" language that lowered the State’s burden and thus caused harmful error	Court: Did not reach merits under Golding because Kitchens was not overruled
Whether the court should review the claim for plain error despite Kitchens-based waiver	State: Plain error review is inappropriate given certified question and precedent	Herring: Alternatively seeks plain error review if Golding review denied	Court: Declines plain error review as beyond the scope of the certified question
Whether Appellate Court correctly applied Kitchens to hold the instructional claim waived	State: Appellate Court decision stands	Herring: Asks this court to reexamine Kitchens application	Court: Affirms Appellate Court judgment; Kitchens application remains controlling

State v. Kitchens, 299 Conn. 447 (2011) (announces waiver rule for unpreserved claims of constitutional or instructional impropriety)
State v. Golding, 213 Conn. 233 (1989) (sets standard for review of unpreserved constitutional claims when certain criteria are met)
State v. Bellamy, 323 Conn. 400 (2016) (declines to overrule Kitchens and addresses the rule’s continued viability)
State v. Herring, 151 Conn. App. 154 (2014) (Appellate Court opinion affirming convictions and finding waiver under Kitchens)