Lead Opinion
Opinion
The defendant, Marvin Kitchens, appeals
The record reveals the following relevant facts and procedural history. On the night of April 19, 2007, the victim, Jennaha Ward, was playing cards with her godfather, Ronald Sears, at Sears’ second story apartment in the city of Hartford. While playing cards, the victim and Sears decided to eat, and Sears went out and purchased shrimp for them to fry. The victim then prepared the shrimp while Sears heated cooking oil in a cast iron skillet. While they were eating the shrimp, the defendant called Sears’ cell phone looking for the victim, with whom the defendant had been in a five month extramarital relationship that the victim recently had ended. The defendant told the victim that he was around the comer from Sears’ apartment and asked whether she would come down and talk to him, and the victim said that she would. The victim, however, did not intend to speak to the defendant. Rather, she went downstairs to lock the door to make sure that he could not get inside. When the victim reached the first floor landing, she jumped up to look out the window above the door to see whether
Once upstairs in the apartment, the defendant asked the victim why she had ended their relationship and physically
After a police investigation,
I
The defendant first claims that the trial court failed to instruct the jury, in accordance with the line of cases starting with State v. Salamon, supra,
The record reveals the following additional facts and procedural history. The case was tried in late February and early March of 2008, four months prior to the July 1, 2008 release of our decision in State v. Salamon, supra,
Notwithstanding the defendant’s failure to preserve this issue at trial, our inteipretation of the kidnapping statutes in Salamon “may be applied to the present case because of the general rule that judgments that are not by their terms limited to prospective application are presumed to
“We begin with the well established standard of review governing the defendant’s challenge to the trial court’s jury instruction. Our review of the defendant’s claim requires that we examine the [trial] court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. . . . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. ... If a requested charge is in substance given, the [trial] court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible . . . when it is shown that it is reasonably possible for [improprieties] of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled.” (Citations omitted; internal quotation marks omitted.) State v. Hampton, supra,
In State v. Salamon, supra,
We also emphasized that “a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim
Moreover, we emphasized in Salamon, in which the defendant “ultimately was not tried for assault,” that “a defendant is entitled to an instruction that he cannot be convicted of kidnapping if the restraint imposed on the victim was merely incidental to the assault, regardless of whether the state elects to try the defendant for assault, because the facts reasonably would support an assault conviction.” Id., 550 n.35. Citing numerous sister state cases, we noted in footnote 35 of that opinion that “[t]o conclude otherwise would give the state carte blanche to deprive the defendant of the benefit of such an instruction merely by declining to charge him with the underlying crime, which . . . generally will carry a far less serious maximum possible penalty than the kidnapping charge.” Id., 551 n.35.
Relying on this footnote from Salamon, the defendant claims that he is entitled to a new trial,
We also find persuasive footnote 7 in State v. Winot, supra,
Having reviewed the record in this case, we conclude that, in light of the multitude of charged offenses, including assault and attempt to commit assault, arising from the same continuum of events, the defendant should have received a Salamon instruction. See State v. Salamon, supra,
Moreover, we agree with the state that remanding the case for a new trial on this ground would create the risk of confusion, as well as illogical jury instructions at the new trial, particularly given the distinction between uncharged crimes and crimes of which a defendant has been acquitted. Cf. State v. Smith,
II
The defendant next claims that the trial court improperly instructed the jury on the element of intent necessary to find the defendant guilty of kidnapping and unlawful restraint. See General Statutes § 53a-3 (ll).
The record reveals the following relevant facts and procedural history. On February 25, 2008, the state filed a request to charge containing five suggested changes to the instructions on assault and burglary. The following day, when the trial court noted on the record that defense counsel had stated in chambers that he did not intend to file a request to charge and asked if that was still the case, counsel replied that it was. Two days later, the court held an on-the-record charge conference in which it referred to a proposed charge it previously had given to the parties.
Several days later, the court informed the parties in an on-the-record conference that it had completed the jury instructions and that each attorney should obtain a copy for discussion at a future meeting. The prosecutor responded that he had stopped by the courthouse the previous day,
Thereafter, the parties made their closing arguments, and the court instructed the jury. The court first instructed on the element of intent under count one— first degree assault — that, “[a]s defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result
We first consider the state’s argument that the defendant waived or “forfeited” his jury instruction claim. The state contends that our recent decision in State v. Ebron,
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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 clearly exists and clearly 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.” (Emphasis in original.) State v. Golding, supra,
“A defendant in a criminal prosecution may waive one or more of his or her fundamental rights.” (Internal quotation marks omitted.) State v. Fabricatore,
“The mechanism by which a right may be waived . . . varies according to the
In the present case, the record is adequate for review and the claim of instructional error on an element of the crime is of constitutional magnitude because it implicates the due process rights of the defendant. See, e.g., State v. Fabricatore, supra,
A
It is well established in Connecticut that unpreserved claims of improper jury instructions are reviewable under Golding unless they have been induced or implicitly waived. “The term ‘induced error,’ or ‘invited error,’ has been defined as ‘[a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling.’ Black’s Law Dictionary (7th Ed. 1999) p. 563 . . . .” (Citation omitted.) State v. Gibson,
By comparison, “[wjaiver is an intentional relinquishment or abandonment of a known right or privilege. ... It involves
Both this court and the Appellate Court have found implied waiver on grounds broader than those required for a finding of induced error. These include counsel’s failure to take exception or object to the instructions together with (1) acquiescence in, or expressed satisfaction with, the instructions following an opportunity to review them, or (2) references at trial to the underlying issue consistent with acceptance of the instructions ultimately given. See, e.g., State v. Brewer,
Despite this substantial precedent, we appeared to signal an end to the concept of implied waiver in Ebron, in which we concluded that the defendant had not waived his right to Golding review. See State v. Ebron, supra,
Shortly thereafter, we concluded in State v. Foster,
We next consider the state’s argument that, if we determine that Ebron is inapplicable, the defendant’s claim is unreviewable because, by acquiescing in, or expressing satisfaction with, the instructions as given, the defense either waived or forfeited the right to challenge them on appeal. The state specifically contends that implied waiver, which falls short of induced error, may be found when counsel accepts instructions in response to the court’s focused inquiry because such acceptance unambiguously communicates that the instructions are fair to the defense, and, therefore, counsel’s conduct constitutes a knowing and intelligent relinquishment or abandonment of the right to challenge them on appeal. The state further contends that, even if such conduct does not constitute a knowing and intelligent waiver, counsel’s failure to take advantage of opportunities specifically designed for timely focus on the prevention of instructional error represents a forfeiture that precludes Golding review. The state thus suggests that waiver may be found when the defense acquiesces in the jury instructions following the court’s careful solicitation of comments from both parties and an adequate opportunity to object to any perceived instructional flaws. We do not entirely agree with the state’s legal argument.
The defendant’s claim provides this court with a timely opportunity to reexamine and clarify Connecticut law on implied waiver. We begin by comparing waiver and forfeiture and noting that waiver is the “intentional relinquishment or abandonment of a known right,” whereas forfeiture is “the failure to make the timеly assertion of a right . . . .”
Cases in which Connecticut courts have deemed jury instructions implicitly waived under Golding fall into three categories.
In the second category of cases, Connecticut courts have found waiver when there was no on-the-record discussion of the challenged jury instruction but the defense acquiesced in, or failed to object to, the instruction as given, and engaged in other trial conduct consistent with acceptance of the instruction. See State v. Fabricatore, supra,
In the third category of cases, Connecticut courts have deemed a claim of instructional error implicitly waived when the defense failed to take exception to, and acquiesced in, the jury instructions following one or more opportunities to review them. See, e.g., State v. Brewer, supra,
In the present case, which falls within this third category, the state argues that defense counsel’s acquiescence in the jury instructions, as evidenced by counsel’s affirmative responses to the trial court’s inquiries at the charge conference and thereafter, was sufficient to convey that the instructions “[were] fair to the defense . . . and should be deemed to constitute a knowing and intelligent waiver.” The state adds that reviewing a new claim of error on appeal runs afoul of counsel's implicitly expressed tactical determination that the jury instruction was suitable, and that, if counsel’s choice is later questioned, the proper remedy is to evaluate the matter in a habeas proceeding alleging ineffective assistance of counsel in which there will be a fully developed record. The defendant, continuing to rely on Ebron, responds that defense counsel’s participation in the charge conference does not foreclose Golding review.
We conclude 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
It is well established that implied waiver, as alleged in this case, arises from an inference that the defendant knowingly and voluntarily relinquished the right in question. See, e.g., C. R. Klewin Northeast, LLC v. Bridgeport,
We emphasize that this is not a less stringent standard than the standard, or standards, advocated by the concurring justices.
In adopting the standard set forth in this opinion, we also rely on (1) the widely recognized presumption 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, (2) our rules of practice, which provide for substantial participation by counsel in formulating and reviewing jury instructions, (3) basic principles of fundamental fairness that favor placing
With respect to the first consideration, we repeatedly have relied on the presumption of competent counsel when detemúning whether a defendant’s waiver of a constitutional right or statutory privilege has been knowing and intelligent. See, e.g., State v. Reid,
2
The presumption of competent counsel articulated by the United States Supreme Court and in the case law of this state also is consistent with rule 1.1 of the Rules of Professional Conduct, which is applicable to all practicing attorneys in Connecticut and directs that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
On the basis of these rules, we conclude, first, that trial courts expect significant participation by counsel in formulating jury instructions because there would be no reason for our rules to provide such guidance if little or no participation was anticipated. We also conclude that competent counsel, being cognizant of our rules, is aware that there are multiple opportunities to request specific instructions, that exceptions or objections to the instructions proposed or given may be taken or raised at various times, and that a charge conference may be requested to consider the instructions and any changes or modifications thereto that counsel deems necessary to ensure that they are correct. Accordingly, reviewing courts in Connecticut have good reason to conclude that counsel knowingly and intentionally waived the right to challenge a jury instruction when the trial court has provided the parties with a meaningful opportunity to review and discuss the instructions, to request changes or modifications before and after the instructions are given, and to comment on the instructions while there is still time to correct them.
The approach set forth in our decision also is in accord with basic principles of fundamentаl fairness. On the one hand, trial courts will be encouraged to hold meaningful and participatory on-the-record charge conferences,
A final consideration is the availability of habeas review if a defendant wishes to bring a claim of ineffective assistance of counsel to contest the reviewing court’s conclusion that the jury instruction claim was waived. As we have stated in other cases, a habeas proceeding provides a superior forum for the review of a claim of ineffective assistance because it provides the opportunity for an evidentiary hearing in which the attorney whose conduct is challenged may testify regarding the reasons he did not contest the instruction at trial. See State v. Leecan,
To the extent Justice Katz claims in her concurrence that the majority “fails to acknowledge the importance of the review of unpreserved errors to our ability to declare and clarify the law,” we disagree. Justice Katz apparently presumes that many valid claims of instructional error will not be reviewed in light of our decision in this case because they will be deemed waived, but such a presumption is purely speculative. The more likely effect is that attorneys will take exception to jury instructions more often if they are perceived as incorrect, thus properly preserving their clients’ claims for review. Moreover, Justice Katz ignores the fact that reviewing courts already routinely consider numerous, properly preserved constitutional claims of instructional impropriety on direct appeal. Finally, claims of instructional error deemed waived on direct appeal will still be reviewed in habeas proceedings because the habeas court must address the merits of the underlying claim in deciding whether there was ineffective assistance of counsel. See, e.g., Crespo v. Commissioner of Correction,
D
Turning to the facts of the present case, we conclude that defense counsel’s repeated statements indicating his affirmative acceptance of the proposed jury instructions after being given a meaningful opportunity to review them constituted an implicit waiver of the defendant’s claim of
The court also held two additional charge conferences to discuss the instructions. Two days after defense counsel reaffirmed that he had no intention of filing a request to charge, the court asked counsel if there was anything he wanted to discuss. Counsel replied that he wanted to discuss those portions of the state’s request to charge relating to the assault counts and one other minor matter but did not raise any issues regarding the intent instruction pertaining to kidnapping and unlawful restraint. When the court asked counsel if there was “[a]nything else” he wanted to discuss, counsel replied, “[n]o, Your Honor. I don’t think so.”
Defense counsel’s acceptance of the jury instructions was in sharp contrast to the conduct of the prosecutor, who made repeated attempts to obtain certain instructional language by filing a request to charge, asking several questions at the first charge conference regarding the instructions on assault, and reviewing a copy of the completed instructions the night before the second charge conference so that he would be prepared to discuss any remaining issues. Thus, it is clear that defense counsel had several meaningful opportunities to participate in fashioning the jury instructions and to review and object to any language contained therein because his counterpart, the prosecutor, repeatedly made his own views known to the court.
The judgment is affirmed.
In this opinion ROGERS, C. J., and VERTEFEUILLE and McLACHLAN, Js., concurred.
Notes
The defendant appealed from the judgment of the trial court to the Appellate Court, and we granted the state’s motion to transfer the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.
General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.”
General Statutes § 53a-91 (2) provides: “ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.”
General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”
General Statutes § 53a-91 (1) provides in relevant part: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. . . .”
General Statutes § 53a-3 provides in relevant part: “(11) A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .”
The defendant also claims that the jury’s finding of guilt with respect to the kidnapping and unlawful restraint charges is legally inconsistent with its finding of not guilty with respect to burglary in the second degree because, “[b]y [finding him not guilty] of burglary, the jury necessarily concluded that [the defendant] did not intend to commit unlawful restraint or any other crime within [the] apartment [where the incident in question took place].” At oral argument before this court, however, the defendant conceded that this claim is precluded by our recent decision in State v. Arroyo,
The victim testified that the defendant was approximately six feet, four inches tall, weighed approximately 200 pounds and was physically strong.
The testimony of Sears and the victim at trial, which the jury apparently did not credit, was that, upon arriving back in the apartment, the defendant had told the victim to sit down at the kitchen table, at which time he splashed her in the face with gin from a bottle or glass that had been on the table, causing her eyes to bum. After the victim washed her eyes out in the bathroom down the hall, she returned to the kitchen where she saw the defendant with a black and yellow utility knife in his hand. After he opened the knife, the victim hit the defendant in the face with a marble ashtray. The defendant then grabbed her by her head scarf, and then her hair, and dragged her approximately eleven feet toward the stove, where he forced her face into the skillet of hot oil. Sears testified, however, that he did not actually see the defendant push the victim’s face into the oil; he only heard her scream.
Because of the presence of her husband at the hospital, as well as the fact that she was concerned about the defendant being arrested, the victim initially told Officer Joseph Mauro, who was investigating the case, that she had been injured in an altercation over the proceeds from the card game. She did not inform the police of her allegations against the defendant until approximately one week later, when she signed a sworn statement following an interview.
We note that the trial court instructed the jury in relevant part: “The defendant is charged in count four with the crime of kidnapping in the second degree, in violation of [§] 53a-94 of the Penal Code, which provides, as it pertains to this case, as follows: A person is guilty of kidnapping in the second degree when he abducts another person.
“The elements of the crime: For you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt that the defendant abducted the victim. ‘Abduct’ means, as it pertains to this case, to restrain a person with intent to prevent his liberation by using or threatening the use of physical force or intimidation. The term ‘restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another or by confining him either in the place where the restriction commences or in a place to which he has been moved without consent. As used here, ‘without consent’ means but is not limited to any means whatsoever. You will recall my earlier instructions on intent and apply them here also.
“Now, the state contends in count four that, on or about April 19, 2007, in the late evening, at 15 Martin Street, Hartford, Connecticut, the defendant . . . abducted [the victim]. The defendant, on the other hand, denies all of the state’s allegations. If you unanimously find in count four that the state has failed to satisfy you beyond a reasonable doubt as to any of the necessary elements, which I have explained to you, you must find the defendant not guilty. On the other hand, if the state has satisfied you beyond a reasonable doubt of the existence of each of these essential elements, your verdict should be guilty of the offenses as charged on this count.”
“We reiterate[d], however, that kidnapping convictions involving miniscule restraints remain subject to challenge under the vagueness doctrine.” State v. Salamon, supra,
In State v. DeJesus, supra,
See footnote 4 of this opinion.
At the outset, the court addressed the assistant state’s attorney (prosecutor) and defense counsel, and the following colloquy ensued:
“The Court: ... As you know, you probably both still have or you know what the first part of my charge is just general things, so is there any objection to that or request to change that?
“[The Prosecutor]: I didn’t review mine from about sixteen months ago, but my recollection is I had no objection at that time, so I can’t imagine it’s changed.
“The Court: Okay.
“[The Prosecutor]: I’ll just leave it at that.
“The Court: I’ll just give you generally what I discuss.”
Accordingly, it appears that the trial court previously had given the prosecutor and defense counsel written copies of the proposed instructions.
The court stated as follows: “When I say you can’t discuss the law, what I mean is you can’t define terms. That doesn’t mean, however, that you can’t refer to facts that constitute the law like the elements of the offense. What is a dangerous instrument? You know, the facts, what are you claiming the dangerous instrument? What are you claiming, you know, intent? Things like that. I don’t want to suggest you can’t use the legal terms that I’m going to use, but you can’t explain it. You can explain the facts that constitute the legal terms, and then I’ll explain what the terms are, like ‘dwelling,’ or if you want to say, ‘he had permission to be there or you know, he didn’t have permission’ .... [Y]ou can refer to the principles and with the facts, but not just — don’t say, ‘okay, a building is a dwelling,’ you know, things that I’m going to say.”
The court apparently had left written copies of the jury instructions with the clerk’s office in the judicial district of Hartford, from which the prosecutor had obtained his copy.
Insofar as Ebron stated that Fabricatore and Brewer were distinguishable on the facts and that State v. Madigosky, supra,
With respect to Madigosky, Ebron summarized its holding in a parenthetical as follows: “[Acquiescence at trial to [a] jury instruction challenged on appeal, without more, does not constitute induced error that would preclude review under Golding . . . .” (Emphasis added.) State v. Ebron, supra,
In declaring that, “[d] espite contending that it is not adopting the state’s [approach to waiver], the majority sets out a nearly identical rule”; footnote 1 of Justice Katz’ concurring opinion; Justice Katz is apparently referring to our statement that “[w]e do not entirely agree with the state’s legal argument.” Justice Katz, howеver, misunderstands that, in referring to the state’s “legal argument,” we include the argument on forfeiture, with which we do not agree, as well as the argument on waiver, with which we generally agree. Moreover, to the extent that we agree with the state’s position on waiver, we agree because it is the correct approach and not for any other reason.
We note, in keeping with these principles, that 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. See, e.g., Mozell, v. Commissioner of Correction, supra,
In her concurrung opinion, Justice Katz declares that our precedent has established that “a defendant -will waive Golding review only by affirmatively agreeing to a specific jury instruction discussed on the record”; (emphasis in original); and that the majority, in stating that cases involving waiver fall into three categories, relies on a flawed analysis of this court’s case law that “goes well beyond the circumscribed approach to waiver outlined in these cases . . . .’’Justice Katz specifically claims that the majority mischaracterizes and misconstrues Fabricatore and Brewer in order to support its “wholly novel system of categorizing unpreserved trial errors under which ... a defendant will be deemed to have waived Golding review of an instructional claim . . . .” We disagree. We merely note that the numerous cases in which this court and the Appellate Court have reviewed instructional error under Golding tend to fall into three recognizable categories, which we explain in more detail in the discussion that follows.
Waiver in this group of cases is similar to waiver under federal law, under which unpreserved instructional claims in criminal cases are reviewed for plain error. See Fed. R. Crim. P. 52 (b) (“[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention”). The federal scheme for reviewing trial error generally distinguishes between forfeiture and waiver, applying plain error review when the claim was merely forfeited because the party failed to assert the right to object in a timely manner, and precluding review of the claim when the party knowingly and intentionally waived that right. See Virgin Islands v. Rosa,
In resolving claims of waiver, federal courts proceed cautiously and “indulge every reasonable presumption against waiver of fundamental constitutional rights and ... do not presume acquiescence in the loss of fundamental rights.” (Internal quotation marks omitted.) Johnson v. Zerbst,
In her concurring opinion, Justice Katz charges the majority with a “gross misreading of the facts in Fabricatore” and maintains that there was an on-the-record discussion of the instruction on self-defense, which was later challenged on appeal. We disagree.
In Fabricatore, the certified question was whether “the Appellate Court properly conclude[d] that the trial court’s improper instruction on the duty to retreat constituted harmless error . . . .” (Emphasis added.) State v. Fabricatore,
The facts on which we relied in Fabricatore are as follows. After the jury left the courtroom, the prosecutor requested that certain language be added to the self-defense instruction indicating that, “if the jury found the defendant was the initial aggressor, the defense of self-defense would no longer be available to the defendant pursuant to [General Statutes] § 53a-19 (c). When the court asked defense counsel if he had any objections to that addition to the charge, defense counsel objected, stating twice that the self-defense instruction already had been given as he had requested, and once that he was ‘satisfied’ with the self-defense instruction.” (Emphasis added.) Id., 475. Consequently, the only part of the self-defense instruction to which [counsel] responded with a specific on-the-record comment related to the prosecutor’s suggested addition of an initial aggressor instruction. His remarks indicating “satisf[action]” with the self-defense instruction conveyed that he was satisfied with the instruction on self-defense, generally, and that he did not want the court to add the initial aggressor instruction that the prosecutor had requested. Thereafter, we concluded that the defendant had waived Golding review of the propriety of the duty to retreat instruction because “defense counsel not only failed to object to the instruction as given or to the state’s original request to charge the jury with the duty to retreat . . . but clearly expressed his satisfaction with that instruction, and in fact subsequently argued that the [self-defense] instruction as given was proper. Indeed, defense counsel himself addressed the duty to retreat in his own summation [and failed to object to the state’s references to the duty to retreat in its summation and rebuttal summation]. Thus, the [defense] accepted the duty to retreat theory presented by the prosecutor, and openly acquiesced at trial, thereby waiving [the] right to challenge the instruction on appeal.” (Emphasis added.) Id., 481. Notably absent from this list of reasons is any reference whatsoever to an on-the-record discussion of the duty to retreat instruction itself. Accordingly, it is Justice Katz who misreads the facts in Fabricatore and misunderstands that the basis for our conclusion that the defendant in that case had waived his jury instruction claim was not an explicit acknowledgment and acceptance of the duty to retreat instruction in an on-the-record discussion with the court.
In insisting that it was “fully apparent throughout the on-the-record discussions regarding the instruction” that the defendant was challenging the inclusion of the duty to retreat instruction; footnote 6 of Justice Katz’ concurring opinion; Justice Katz fails to recognize that the defendant was challenging the prosecutor’s request for an initial aggressor instruction. Insofar as Justice Katz also relies on the fact that defense counsel expressed satisfaction with the instruction, did not take exception to the prosecutor’s reference to the duty to retreat in his summation and addressed the duty to retreat in his own summation, counsel’s actions represented either express acquiescence in the instruction as given or trial conduct indicating acceptance of the instruction. Consequently, the record clearly shows that, although defense counsel did not engage in an on-the-record discussion with the court on the duty to retreat, he waived the defendant’s right to challenge the instruction on appeal.
In her concurring opinion, Justice Katz reasserts her claim that the majority opinion suffers from a “misapprehension of our case law” because, in Brewer, defense counsel and the trial court discussed on the record the “specific jury instruction later challenged,” and defense counsel explicitly acquiesced in the instruction as given. We disagree.
In Brewer, we stated that the defendant’s sole claim on appeal was that, “pursuant to State v. Sawyer,
On the basis of this colloquy, several conclusions can be drawn. First, the discussion concerned whether the court should give the instruction on the lesser included offense of reckless manslaughter, not whether the instruction incorrectly stated the law or was constitutionally defective. Second, the court indicated that it was giving the instruction because defense counsel had requested it and then asked counsel if the lesser included offense to which the instruction referred was “the right one . . . .” (Internal quotation marks omitted.) Id. Third, defense counsel responded that it was. Id. Neither counsel nor the court referred to the unanimity portion of the instruction. Although this colloquy and defense counsel’s prior statement that he had no exceptions to the jury instructions suggest that counsel was satisfied with the instructions and thus waived a claim of instructional error concerning the unanimity requirement, there is no basis for Justice Katz’ conclusion that the unanimity portion of the instruction was specifically discussed on the record, especially when counsel’s only contribution to the discussion was his perfunctory, “[t]hat is correct, Your Honor,” which was in response to the court’s simple question of whether it had instructed on the proper lesser included offense. Accordingly, Justice Katz’ assertion that there was an explicit, on-the-record discussion of the unanimity instruction is unsupportable.
The standard that we describe would not allow waiver to be presumed from a silent record or from defense counsel’s mere acquiescence in, or failure to object to, the jury instructions. A silent record, by definition, would not satisfy the standard because there would be no factual basis from which the court could infer a waiver, and mere acquiescence or failure to object, without more, would provide an insufficient basis for a finding of waiver because there would be no evidence from which the court could determine whether counsel had been given a meaningful opportunity to review, comment on and express satisfaction with the instructions, or whether counsel had, in fact, expressed such satisfaction before or after the instructions were given.
Having joined each other’s opinions, it is difficult to determine whether the concurring justices agree on a single standard, because the standards articulated in their individual opinions appear to be quite different, if not incompatible. For example, Justice Katz states that nontactical, implied “waiver results only when: (1) the specific instruction that is later challenged is brought to the attention of defense counsel; (2) that instruction is discussed on the record; and (3) defense counsel nonetheless explicitly and actually approves of the instruction,” whereas Justice Palmer states that waiver “cannot be [found] ... in the absence of a record clearly demonstrating, either expressly or impliedly, counsel’s knowledge that the charge, at least potentially, was constitutionally infirm and that counsel, in the exercise of his [or her] professional judgment, decided to forgo any [objection] concerning that possible infirmity.” Thus, the standard articulated by Justice Katz, unlike that articulated by Justice Palmer, would not require evidence that counsel agreed to a constitutionally flawed jury instruction despite knowledge of the flaw.
We also believe that Justice Palmer’s view that waiver should not be found “in the absence of a record clearly demonstrating, either expressly or impliedly, counsel’s knowledge that the charge, at least potentially, was constitutionally infirm and that counsel, in the exercise of his [or her] professional judgment, decided to forgo any claim concerning that possible infirmity”; (emphasis in original); is internally inconsistent because there appears to be no way that counsel may clearly demonstrate such knowledge except by expressly informing the court. Accordingly, Justice Palmer’s standard effectively eviscerates the concept of implied waiver in favor of express waiver, despite his use of the word “implied.”
Moreover, Justice Palmer’s understanding of implied waiver is not how Connecticut’s reviewing courts have construed implied waiver in the past. See, e.g., State v. Hampton, supra,
Indeed, if the law were as Justice Palmer would like it to be, the presumption of competent counsel on which this court has relied in past cases involving implied waiver would not survive, because counsel could not concede on the record that a jury instruction was constitutionally defective and forgo an objection, even for reasons of trial strategy, without exposing himself or herself to the almost certain filing of a habeas claim of ineffective assistance following a conviction.
We also take issue with Justice Palmer’s conclusion that “counsel who does not wish to have a reviewing court treat his failure to object as a waiver for Golding purposes may avoid such treatment simply by informing the trial court that he has not raised a constitutional challenge to the charge because he is unaware of any such claim, and not because he has elected to waive the claim”; (emphasis in original); and that an “express . . . disavow[al]” of waiver “would trump any finding of implied waiver by this court or the Appellate Court . . . .” Such a conclusion is logically flawed because an admission by counsel that he is unaware of a constitutional claim can mean only one of two things, namely, that competent counsel, which Justice Palmer recognizes may be properly presumed, has intentionally waived the right to raise a constitutional challenge on appeal or that counsel is ineffective because he fails to recognize the existence of a constitutional challenge. To determine which is the case is best examined in a habeas proceeding, in which the record can be fully developed and trial counsel may testify about his reasons for acting as he did. Furthermore, Justice Palmer cites no legal support for a blanket preservation by trial counsel of all constitutional challenges to jury instructions merely on the basis of counsel’s in-court statement that he or she is “unaware” of a constitutional violation. Finally, such a ploy could open up a “Pandora’s box,” flooding Connecticut courts with cases alleging improper jury instructions on every conceivable issue and making a mockery of the trial court’s attempt to query and solicit counsel’s input on the jury instructions. It also would conflict directly with the mandate in rule 1.1 of the Rules of Professional Conduct that requires adequate preparation by counsel in representing a client, which presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed. See Rules of Professional Conduct 1.1 (“A lawyer shall provide competent rеpresentation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”). Accordingly, we unequivocally reject as legally unsupportable the assertion that counsel may expressly disavow waiver by informing the trial court that he is “unaware” of any constitutional infirmities in the jury instructions.
We finally disagree with Justice Palmer’s view that there is far less reason to bar appellate review of jury instruction claims under the principle of implied waiver than unpreserved claims of prosecutorial impropriety during closing argument, where defense counsel sits through the argument and raises no objection. Trial strategy aside, which may be reason in either circumstance to refrain from objecting, counsel has much more opportunity to identify instructional error than prosecutorial impropriety because counsel has a meaningful opportunity to review the jury instructions and to suggest revisions or corrections, whereas, in the case of prosecutorial impropriety, counsel must make spontaneous, on-the-spot decisions regarding when to object during closing argument, a task not easily accomplished when the argument is passionate, its pace is very rapid and counsel is attempting to make mental or written notes regarding points that require a response. We thus disagree with Justice Palmer’s conclusion that the majority's decision “cannot be squared with the approach that this court has taken with respect to unpreserved claims of prosecutorial impropriety during closing argument”; footnote 11 of Justice Palmer’s concurring opinion; because it fails to acknowledge the substantial differences between the two scenarios.
Justice Palmer argues that none of these considerations has any bearing on whether counsel in this particular case knowingly and intelligently waived the defendant’s right to a constitutionally adequate jury instruction, and, in any event, such considerations are unpersuasive and policy driven. We disagree. Although we believe it is self-evident that a finding of valid waiver in any given case must be based on an examination of the facts and circumstances as revealed in the record; see State v. Hampton, supra,
In her concurring opinion, Justice Katz asserts that, contrary to the presumption that counsel is both competent and ethical, “the majority’s approach allows appellate judges to presume, from nearly silent records, that trial counsel’s failure to object to an instruction derived from strategic contrivance rather than mere negligence.” We do not agree. It is Justice Katz who contravenes the presumption that counsel is competent because she would deny waiver in all cases in which counsel failed to bring the specific instructional error to the trial court’s attention, thus implying that any other valid instructional error was overlooked or not identified because counsel was either incompetent or unethical. In contrast, the majority decision specifically rejects the presumption that all acquiescence at trial to the jury instructions must be due to counsel’s incompetence or unethical conduct. Not only do we not believe that all strategic decisions concerning jury instructions are unethical, but we build on the presumption of competent counsel by presuming that counsel would have identified the instructional error if given a proper and meaningful opportunity to review the instructions and by disallowing review upon counsel’s failure to object or express satisfaction with the instructions proposed or given. Accordingly, Justice Katz demonstrates a fundamental misunderstanding of the approach articulated in the majority opinion.
Justice Katz again misconstrues our reasoning when she declares in her concurring opinion that the majority has devised a rule “that depends on the use of the [charge] conference to determine whether the defendant has waived his right to challenge a defective instruction” and has singled out the defendant to bear the costs of instructional error that may occur at trial. Although we have stated that an on-the-record charge conference provides an important opportunity for the defendant to raise specific concerns regarding instructional error, we have also stated that a defendant will not be deemed to have waived such a claim unless the court has provided counsel with a copy of the proposed instructions and a meaningful opportunity for review and comment, which can be determined in any given case only by a close examination of the record. The significance of a meaningful opportunity for review and comment cannot be underestimated. Holding an on-the-record charge conference, and even providing counsel with an advance copy of the instructions, will not necessarily be sufficient in all cases to constitute waiver of Golding review if defense counsel has not been afforded adequate time, under the circumstances, to examine the instructions and to identify any potential flaws. Thus, Justice Katz’ assertion that the charge conference is the most important factor in determining whether a claim of instructional error has been waived and that the majority has singled out the defendant to bear the consequences of an erroneous instruction is without foundation because the obligations of the trial court, as described herein, are equally, if not more, significant than those of the prosecutor and the defense.
Justice Palmer, citing Ledbetter v. Commissioner of Correction,
Justice Katz states that the failure to file a request to charge has no bearing on a Golding inquiry because filing such a request would properly preserve the claim of error for direct appellate review. Although we agree that the effect of filing a request to charge is to preserve properly a claim of instructional error, we note, with respect to the present case, that defense counsel, by declining twice to file a request to charge in response to the court’s direct invitation, indicated that he had no special concerns regarding the instructions on intent that he wished to discuss with the court.
Defense counsel’s discussion of unrelated parts of the jury charge at an on-the-record charge conference was significant because it demonstrated that counsel was sufficiently familiar with the instructions to identify those portions of the instructions with which he disagreed. Thus, to the extent that he selectively discussed certain portions of the instructions but not others, one may presume that he had knowledge of the portions that he did not discuss and found them to be proper, thus waiving the defendant’s right to challenge them on direct appeal.
Although Justice Katz finds the prosecutor’s repeated on-the-record conversations with the court wholly irrelevant to this analysis, we believe that they should have served as a vivid reminder to defense counsel that, if he had any concerns regarding the instruction on intent, he could have brought them to the court’s attention. Counsel’s failure to do so on multiple occasions thus suggests that he agreed with the instructions that were given.
Concurrence Opinion
join, concurring. The issue presented in this case— under what circumstances a defendant will be deemed to have waived appellate review of a constitutional challenge to a jury instruction under State v. Golding,
I
In setting forth its new rule, the majority relies on a flawed analysis of this court’s case law concerning waiver of Golding review of trial errors.
This history reflects that the rationale of Golding and its predecessors is that “fundamental constitutional rights are of such importance that appellate courts should review claims of alleged constitutional violations even when a defendant fails to take an exception to the alleged violation at the trial court level.” State v. Wright,
Despite our recognition of the essential function of Golding review, we also have recognized that a defendant, through defense
The majority goes well beyond the circumscribed approach to waiver outlined in these cases by improperly expanding our waiver cases into three categories: (1) express acknowledgment of and agreement with an instruction; (2) trial conduct consistent with acceptance of the instruction, even when there was no on-the-record consideration of the instruction; and (3) acquiescence to an instruction following one or more opportunities to review the instruction. I agree with the majority that waiver occurs in the first category of cases — when the record demonstrates a defendant’s express acknowledgment and knowing acceptance of a specific instruction. The remaining two categories do not accord, however, with our established case law and the majority misconstrues the holdings and approaches of State v. Fabricatore, supra,
The majority relies on Fabricatore for the proposition that this court has found waiver when there was no on-the-record discussion of the challenged jury instruction, but the defendant engaged in other trial conduct consistent with acceptance of the instruction. This represents a gross misreading of the facts in Fabricatore. As a preliminary matter, it is clear that, in
In addition, the majority relies on Brewer for the proposition that this court has recognized yet a third category of cases within which an appellant waives review of an instructional error by failing to object to, and acquiescing in, the instructions following one or more opportunities to review them and contends that the present case, in which defense counsel acquiesced generally to a set of jury instructions, is analogous to Brewer. Again, these conclusions represent a misapprehension of our case law. In Brewer, defense counsel and the trial court discussed on the record the later challenged instruction and defense counsel explicitly acquiesced to the instruction as given. State v. Brewer, supra,
Rather than acknowledge the limited nature of waiver reflected in these cases, the majority unduly focuses on the purportedly unworkable holding in State v. Ebron,
Accordingly, consistent with our case law, waiver is effectuated by what this court has deemed “active inducement” of an error or any other intentional relinquishment or abandonment of a known right or privilege. Moreover, waiver may be implied from defense counsel’s conduct only when that conduct demonstrates that counsel affirmatively and knowingly forwent any objection to the later challenged instruction. Consistent with this framework, within the specific context of jury instructions, waiver includes both actively inducing an error by providing the later challenged instruction to the court (which we have called induced or invited error) as well as affirmatively embracing an instruction offered by opposing counsel or the court, so long as that conduct demonstrates that counsel affirmatively and knowingly forwent any objection to the later challenged instruction.
Because this approach requires a case-by-case analysis to determine when waiver occurs, which has not been entirely helpful to the Appellate Court, I suggest that we turn to related federal case law to further illuminate the distinction between waived error and unpre-served error. Cf. State v. Evans, supra,
Federal cases applying the waiver doctrine reveal three guiding principles regarding when a defendant, through defense counsel, will be deemed to have waived appellate review by agreeing to a later challenged error. First, to establish waiver, the record itself must demonstrate the party’s awareness of an issue and his deliberate decision to forgo a challenge; such conditions are never presumed or inferred.
A second, but related, principle holds that, in the context of challenges to jury instructions, waiver results only when: (1) the specific instruction that is later challenged is brought to the attention of defense counsel; (2) that instruction is discussed on the record; and (3) defense counsel nonetheless explicitly and actually approves of the instruction.
Third, there may indeed be a rare instance of tactical waiver of an improper instruction that a defendant later challenges on appeal. While findings of tactical waiver are necessarily fact-bound, and therefore difficult to reduce to clear rules, they do reveal a common thread. Tactical waiver may result from a failure to object; see United States v. Yu-Leung,
II
Ignoring both this court’s precedent and well established federal jurisprudence concerning waiver, the majority attempts to use public policy concerns to justify its fabrication of both a new framework for categorizing waivers and a new rule pursuant to which a defendant waives Golding review by participating in a charging conference pursuant to our rules of practice. The majority’s analysis of the relevant public policy concerns, however, is unsound.
To understand the practical effects of the majority’s new rule, and thereby to evaluate the relevant public policy concerns, it is critical to examine closely the application of that rule in the present case. Counsel for the defendant, Marvin Kitchens, essentially participated in several on-the-record conferences in which he declined to raise any concerns related to the instruction at issue in this appeal. The trial court then provided the parties with written jury instructions. At a subsequent conference, the prosecution raised several issues unrelated to the challenged instruction. The trial court asked defense counsel if he had had an opportunity to review the instructions, to which counsel replied, “my copy is downstairs, but I didn’t have any major revisions.” The court then ended the conference without further comment from the attorneys.
The majority emphasizes several facts about the present case, seemingly in an attempt to demonstrate that defense counsel had a “meaningful” opportunity to review and object to the instructions. First, the majority notes that the trial court asked defense counsel several times whether he was going to file a request to charge and defense counsel declined to do so. I note, however, that a failure to file a request to charge has no beаring in any Golding inquiry because, had defense counsel done so, the error would have been preserved properly for direct appellate review. See State v. Terwilliger,
Accordingly, the practical effect of the majority’s approach contravenes the underlying principles and purpose of Golding — the elimination of the hurdle of
The majority’s approach also flies in the face of several fundamental understandings, implicit in our Golding jurisprudence, about the nature and value of appellate review of criminal convictions and our expectations of advocates at both the trial and appellate level. First, the majority’s approach undervalues the role that appellate review of unpreserved errors plays in fulfilling the appellate courts’ essential functions. Appellate courts serve “two basic functions: (1) correction of error (or declaration that no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension or overruling. These are . . . respectively the corrective and preventive functions.” J. Phillips, “The Appellate Review Function: Scope of Review,” 47 Law & Contemp. Probs. 1, 2 (Spring 1984). In its approach to public policy concerns, the majority focuses solely on the first function and fails to acknowledge the importance of the review of unpreserved errors to our ability to declare and clarify the law. Instructing the jury is a particularly critical point in a criminal trial; indeed, “[a]n improper instruction has a watershed effect on the jury’s understanding of the law.” D. Carter, “A Restatement of Exceptions to the Preservation of Error Requirement in Criminal Cases,” 46 U. Kan. L. Rev. 947, 960 (1997-1998). Beginning with Golding itself, this court has set forth or clarified
Second, in contravention of our presumptions that counsel is both ethical and competent, the majority’s approach allows appellate judges to presume, from nearly silent records, that trial counsel’s failure to object to an instruction derived from strategic contrivance rather than mere negligence. It is well established that we presume that all trial advocates act within the ethical standards set forth in our Rules of Professional Conduct. See, e.g., State v. Chambers,
Moreover, the majority’s new rule likely will have a detrimental impact on the effective functioning of the court system. As a preliminary matter I note that the number of cases in which a defendant obtains reversal of his conviction on the basis of Golding review of instructional errors is negligible. See footnote 17 of this concurring opinion. Therefore, attorneys well versed in our Golding jurisprudence do not see review under its umbrella as a panacea. Collapsing the distinction between negligence and intentional waiver serves merely to delay resolution of the claimed error and to increase the workload of our trial courts by requiring the defendant to bring a habeas petition for ineffective assistance of counsel. The vast majority of appellants requesting Golding review of instructional errors also seek review of properly preserved errors or Golding review of unpreserved noninstructional errors. Under the majority’s approach, these appellants will be entitled to a direct appeal of some of their claims before an appellate court, but will have to pursue their unpre-served instructional error claims in a separate habeas proceeding. Even those appellants who seek review only of Golding instructional error claims will have to raise those claims on direct appeal in order to preserve them for habeas review.
Finally, I disagree that the majority’s approach is likely to impact significantly whether trial courts provide written copies of proposed instructions, afford time to review those instructions and then hold on-the-record charging conferences. First, the majority’s rule is premised on the presumption that trial judges will not fulfill their duty to ensure a fair trial without the dangling carrot of limited appellate review. This represents an undeservedly skeptical view of the trial judges of this state that is entirely unsupported by any data or anecdotal evidence. Similarly, the majority’s approach is predicated on the presumption that defense counsel will not submit requests to charge or request charging conferences when they recognize potential problematic or important issues relating to the jury instructions. As set forth previously, this contravenes our established presumptions that defense counsel acts competently and ethically, as well as the understanding that Golding review provides no incentive for defense counsel to purposefully withhold meritorious legal claims. Finally, even if the majority’s approach encourages defense attorneys to file a request to charge concerning instructions that they identify as important, and to contest any instructions they recognize as erroneous, it will have no impact when defense counsel, through negligence or inadvertence, fahs to recognize an erroneous instruction. Indeed, these are the precise errors that Golding review is meant to
Ill
Drawing from both this court’s precedent and federal precedent, it is evident that a defendant should not be deemed to have waived a challenge to a jury instruction unless the record clearly reflects that the defendant was aware of the particular challenged aspect of the instruction and the defendant expressed satisfaction with that part of the instruction.
Having determined that the defendant did not waive Golding review, I must examine his claim of instructional impropriety. See footnote 4 of this concurring opinion (setting forth four-pronged Golding test). Specifically, the defendant claims that the trial court’s instructions improperly provided the jury with a definition of “intentionally” that included language concerning general intent, despite the fact that the defendant was charged only with crimes requiring specific intent. He further claims that this instruction improperly allowed the jury to find him guilty of kidnapping and unlawful restraint without determining that he had the specific intent to engage in the proscribed conduct. The state concedes that the instruction was improper, but contends that the instructions were nonetheless constitutionally adequate. I agree with the state.
The record reveals the following undisputed facts, which are relevant to the resolution of this claim. The defendant was charged with, inter alia, kidnapping in the second degree in violation of General Statutes § 53a-94 (a)
As a preliminary matter, the defendant’s claim meets the first two prongs of Golding and, therefore, is reviewable. First, the record contains a transcript of the jury instructions, and is therefore adequate for review. Second, it is well established that an improper instruction on an element of an offense is of constitutional magnitude; see State v. DeJesus,
“[T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of lаw. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect [on] the juiy in guiding [it] to a correct verdict in the case. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id., 572-73.
Salamon is instructive. That case also involved a crime of specific intent but the trial court improperly had provided only a general intent instruction. We concluded that this impropriety did not require reversal “because the court thereafter accurately explained that, to prove the element of restraint, the state was required to establish that the defendant had restricted the victim’s movements intentionally and unlawfully in such a manner so as to interfere substantially with her liberty by confining her without her consent. . . . Under this explanation, there is no reasonable
As the state properly concedes in the present case, the trial court’s definition of intent incorrectly encompassed both specific and general intent. See State v. Francis,
Accordingly, I concur.
It is worth noting that, although the majority insists that it does not adopt the state’s approach to waiver of Golding review of instructional errors, there is no significant difference, either in description or application, between the state’s proposed rule and the rule adopted by the majority. The majority characterizes the state as setting out a rule under which waiver occurs when a defendant acquiesces injury instructions following a meaningful opportunity to review them outside the rush of trial, participates in a charging conference on the record and takes no exception to the charge after it has been delivered. Despite contending that it is not adopting the state’s rule, the majority sets out a nearly identical rule under which waiver occurs when the trial court provides a set of written jury instructions to defense counsel, allows a meaningful review of and the opportunity to comment on those instructions, and defense counsel acquiesces to the instructions. See part II of this concurring opinion.
I agree with the majority that this court has recognized that Golding analysis cannot be used to review unpreserved claims of induced, also known as invited, error regardless of the constitutional nature of the error. State v. Cruz,
The present case concerns only the second exceptional circumstance identified in Evans.
“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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 clearly exists and clearly 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.” State v. Golding, supra,
This includes review for plain error. See State v. Pierce,
The majority disputes my reading of Fabricatore based in part on its conclusion that, in that case, there was never an on-the-record discussion of the allegedly improper language. In doing so, the majority fails to recognize that the defendant challenged the mere inclusion of the duty to retreat language in the self-defense instruction, an impropriety that was fully apparent throughout the on-the-record discussions regarding the instruction. See State v. Fabricatore, supra,
The majority contends that the on-the-record discussion in the trial court concerned whether the court should give an instruction on lesser included offenses, not the unanimity requirement. I acknowledge that the excerpt of the colloquy cited by this court; State v. Brewer, supra,
Although this court has maintained that any finding of waiver must derive from a defendant’s clear and affirmative acceptance or suggestion of specific instructional language, some panels of the Appellate Court have suggested that a defendant’s mere acquiescence to a set of jury instructions may preclude Golding review. See State v. Velez,
I reiterate for the purpose of clarity that, as in the federal courts, invited or induced error is a subset of waiver. The federal courts deem instructions that the defendant expressly provides to the court to be invited errors, and generally treat such errors as a subset of waiver, thus foreclosing review. See United States v. Cruz-Rodriguez,
Rule 52 (b) of the Federal Rules of Criminal Procedure provides: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Although the federal courts refer to this doctrine as plain error review, it is treated in practical application like this court’s Golding review.
The United States Supreme Court has set forth a four-pronged test to determine whether a trial error may be reviewed under rule 52 (b). “First, there must be an error or defect — some sort of [deviation from alegal rule— that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. . . . Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. . . . Third, the error must have affected the appellant’s substantial rights .... Fourth ... if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” (Citations omitted; internal quotation marks omitted.) Puckett v. United States,
In suggesting that Justice Palmer and I have adopted inconsistent standards, the majority apparently overlooks my adoption of this fundamental principle of waiver, which states in general terms the same view articulated in Justice Palmer’s concurring opinion regarding application of that principle in the specific context of Golding review — that waiver “cannot be deemed ... in the absence of a record clearly demonstrating, either expressly or impliedly, counsel’s knowledge that the charge, at least potentially, was constitutionally infirm and that counsel, in the exercise of his [or her] professional judgment, decided to forgo any claim concerning that possible infirmity.” (Emphasis in original.) Therefore, the claimed inconsistency is illusory.
I reiterate that these principles are consistent with this court’s approach to waiver of jury instructions. See, e.g., State v. Holness, supra,
Again, I note that this approach is consistent with our approach to strategic waivers. We have recognized that “[t]o allow the [petitioner] to seek reversal [after] his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal.” (Internal quotation marks omitted.) State v. Fabricatore, supra,
The doctrine of “plain error,” that is error that is so fundamental that the defendant will not lose his ability to challenge it on appeal, does not ameliorate a defendant’s inability to access Golding review. Any reliance on the plain error doctrine as a fallback measure on which defendants may rely is misplaced because “[j]ust as a valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review, a valid waiver also thwarts plain error review of a claim. . . . [The] [pjlain [e]rror [r]ule may only be invoked in instances of forfeited-but-reversible error . . . 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. . . . The distinction between a forfeiture of a right (to which the [pjlain [ejrror [rjule may be applied) and a waiver of that right (to which the [pjlain [ejrror [rjule cannot be applied) is that [wjhereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (Citation omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction,
Rule 1.1 of the Rules of Professional Conduct provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Rule 3.3 (a) of the Rules of Professional Conduct provides in relevant part: “A lawyer shall not knowingly:
“(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; [or]
“(2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel . . . .”
From January 1, 2000, to May 5, 2010, this court considered approximately 140 criminal appeals in which a defendant requested Golding review, not including cases in which the court determined that the defendant was entitled to other types of appellate review. Of those 140 cases, approximately 70 involved claims for Golding review of instructional errors, in which the court found reversible error in only 6 cases.
During the same period, the Appellate Court considered approximately 550 criminal appeals in which a defendant requested Golding review or the court, sua sponte, engaged in Golding review, not including cases in which the court determined that another legal framework governed its review. Of those 550 cases, approximately 250 involved claims for Golding review of instructional error, and the court found reversible error in only 17 cases.
This court has held that Golding review is not available for unpreserved claims of error raised for the first time in a habeas appeal. Safford v. Warden,
Similarly, the majority’s reliance on Practice Book § 42-16 is misplaced. Section 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. . . .” The majority suggests that this provision encourages defense counsel to file a request to charge, but fails to consider that § 42-16 sets forth the procedure by which counsel may properly preserve appellate review of an instruction, and thus is not applicable to Golding review. See, e.g., State v. King,
The state does not claim that the defendant’s actions constituted induced or invited error.
General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.”
General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”
General Statutes § 53a-3 (11) provides that “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . .
Concurrence Opinion
join, concurring. I agree with, and join, Justice Katz’ thoughtful concurrence. I write separately, however, to underscore why, in my view, the majority is incorrect in finding that defense counsel knowingly and intentionally waived the claim of the defendant, Marvin Kitchens, concerning the constitutionality of the jury charge solely on the basis of counsel’s statement that he had no objection to the court’s jury instructions after having been afforded a reasonable opportunity to review and comment on those instructions. In reaching its conclusion, the majority disregards the well established principle that, to be effective, the record must demonstrate that counsel’s failure to object to the charge on constitutional grounds represented the intentional relinquishment of a known right. Under the maj ority’s flawed application of the concept of implied waiver, counsel will be found to have purposefully waived any claim that the defendant may have had with respect to his due process right to a properjury charge, thereby foreclosing appellate review under State v. Golding,
Before commencing my review of the majority’s analysis, I first set forth several unchallenged principles concerning the issue of waiver. “What suffices for waiver depends on the nature of the right at issue. [W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and
There is no dispute that, for reasons of strategy, counsel may knowingly and intentionally waive a defendant’s constitutional right to a particular jury instruction despite the fundamental nature of the defendant’s due process entitlement to an adequate jury charge.
Of course, such a waiver may be express or may be implied by conduct. See, e.g., State v. Smith, supra,
Because the conduct of the parties “ ‘is of great importance’ ” in determining waiver; id.; we look to the record to discern whether the right was waived by counsel with full knowledge of the existence of the right. See id. In other words, “[a]n effective waiver presupposes full knowledge of the right or privilege allegedly [being] waived and some act done designedly or knowingly to relinquish it. . . . Moreover, the waiver must be accomplished with sufficient awareness of the relevant circumstances
Thus, in the present case, counsel cannot be deemed to have waived the defendant’s right to a constitutionally adequate jury charge in the absence of a record clearly demonstrating, either expressly or impliedly, counsel’s knowledge that the charge, at least potentially, was constitutionally infirm and that counsel, in the exercise of his professional judgment, decided to forgo any claim concerning that possible infirmity. Of course, neither the state nor the majority claims that the record supports a finding of express waiver. Nevertheless, under our jurisprudence, counsel maybe found to have impliedly waived a claim that the court’s jury instructions were constitutionally deficient. To establish such an implied waiver, however, the state bears the burden of meeting the same stringent standard that is applicable to express waivers, namely, that the waiver represents the intentional relinquishment of a known right. Consequently, waiver may be implied — that is, it may be inferred — only if the record reveals conduct by counsel demonstrating both that counsel had knowledge of the potential constitutional claim and intentionally decided not to raise it, presumably for strategic reasons. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld,
These waiver principles apply to unpreserved constitutional claims for good reason. The narrow Golding exception to the general rule that a reviewing court will not consider a claim not previously raised at trial is justified by the overriding importance of protecting the fundamental constitutional rights of the accused. See State v. Golding, supra,
The shortcoming of the majority opinion is attributable to the majority’s determination of an implied waiver by conduct on the basis of a record that clearly does not support such an inference. According to the majority, when, as in the present case, defense counsel, having been given sufficient time to review the jury charge, expresses approval of the charge, it is reasonable to infer that counsel knowingly and intentionally waived any constitutional objection to the charge. In other words, in such circumstances, defense counsel will be deemed both to have known of the potential constitutional claim and to have decided not to raise it. The majority reaches this conclusion even though there is nothing in the record to indicate either that counsel was aware of the constitutional issue or that he intentionally opted to forgo any objection to the constitutionally defective instruction.
“An inference is [a] process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.” (Internal quotation marks omitted.) Walker v. Mortham,
It is apparent that the conduct of counsel in reviewing the charge and advising the court that he has no objection to it is insufficient to support the inference that counsel intentionally abandoned the defendant’s right to raise a constitutional challenge to the charge. Counsel might have been aware of a potential constitutional infirmity in the charge and elected not to seek to remedy the impropriety, but there is nо reasoned basis for concluding that counsel was, in fact, aware of the claim and decided to forgo it. In the absence of a discussion of the potential constitutional claim during the charge conference, or some other indication in the record that counsel was aware of the existence of such a claim, it simply is unreasonable to infer that counsel, with knowledge of the claim, intentionally abandoned it. Thus, far from “indulg[ing] every reasonable presumption against waiver of fundamental constitutional rights”; (internal quotation marks omitted) State v. Woods, supra,
The majority’s reasoning cannot withstand scrutiny for another, albeit related, reason. Under that reasoning, we must presume that defense counsel was aware of and elected to waive every constitutional claim that conceivably could have been raised with respect to the court’s instructions. This is so because the majority treats as waived any and all constitutional claims to which the defense had not objected after having had an adequate opportunity to review the charge. Thus, although it may appear, at first glance, that the majority’s inference of a knowing and intentional waiver pertains only to the specific claim at issue on appeal, under the majority’s reasoning, defense counsel necessarily is deemed to have waived every single constitutional claim that possibly could have been made with respect to the court’s jury instructions. Of course, such an inference is unreasonable; no defense attorney or team of defense attorneys, no matter how capable or prescient, could possibly be expected to recognize each and every constitutional claim — meritorious and unmeritorious, innovative and not so creative — that conceivably might be raised to challenge the constitutionality of the court’s jury charge. Nevertheless, that is precisely the inference on which the majority relies in finding that defense counsel in the present case impliedly waived the defendant’s constitutional claim.
Furthermore, because the majority’s inference of waiver is unsupported and, therefore, bears no reasonable relation to counsel’s actual intent in failing to raise a claim, in future cases, counsel can readily avoid the inherent unfairness of the majority’s decision. To do so, counsel who does not wish to have a reviewing court treat his failure to object as a waiver for Golding purposes may avoid such treatment simply by informing the trial court that he has not raised a constitutional challenge to the charge because he is unaware of any such claim, and not because he has elected to waive the claim. In view of the fact
In fact, none of these policy considerations has the slightest bearing on the issue of whether counsel knowingly and intelligently waived the defendant’s right to a constitutionally adequate jury instruction. The fact that our rules of practice provide generally for participation by defense counsel in formulating and reviewing jury instructions provides no insight into whether counsel’s participation in a particular case warrants the conclusion that a failure to object to a particular charge reflects counsel’s intentional waiver of a known right. Of course, policy considerations that purportedly favor placing responsibility with the trial court and the parties’ counsel to ensure that the juiy charge is correct shed absolutely no light on whether counsel’s failure to object was the product of a tactical decision or negligence. Moreover, the availability of a habeas remedy also has nothing to do with
Indeed, it appears that, under the majority’s holding, the remedy of a writ of habeas corpus predicated on a claim of ineffective assistance of counsel would not be available in certain cases when, as in the present case, counsel is deemed to have waived a constitutional claim. It is well established that, “to perform effectively, counsel need not recognize and raise every conceivable constitutional claim.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction,
Moreover, for any case in which counsel’s failure to object to a constitutionally deficient jury instruction gives rise to a claim of ineffective assistance of counsel and that claim is meritorious, the defendant will be required to await the successful outcome of his habeas claim before obtaining the new trial to which he is entitled. Furthermore, the new trial will be further delayed by any appeal that the commissioner of correction elects to take from the adverse judgment of the habeas court. This delay is both unnecessary and unfortunate, especially for those defendants serving a sentence of incarceration. In addition, the majority’s decision will make it more difficult to prevail on unpre-served claims of instructional impropriety. Beforе today’s decision, a defendant who had established that his trial was tainted by a constitutionally defective jury charge would be entitled to a new trial unless, under the fourth prong of Golding; see footnote 1 of this concurring opinion; the state established that the improper charge was harmless beyond a reasonable doubt. Hereafter, that same defendant bears the burden of establishing not only that his attorney’s representation fell below the range of competence displayed by attorneys with ordinary skill and training in the criminal law, but also that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction,
The fact that the majority opinion is driven by the various policy considerations identified by the majority and not by principles of waiver is reflected in the maj ority’s insistence that, in accordance with well established rules pertaining to waiver, the determination of whether counsel has waived the defendant’s right to a constitutionally adequate jury charge “must be based on a close examination of the record and the particular facts and circumstances of each case.” Of course, this is the rule applicable to proving waiver generally; see, e.g., State v. Woods, supra,
I therefore would conclude that the waiver doctrine does not preclude the defendant from Golding review of his unpreserved claim of instructional impropriety. For the reasons set forth by Justice Katz in her concurrence, however, I also would conclude that the defendant cannot prevail on the merits of that claim. Accordingly, I concur in the result.
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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 clearly exists and clearly 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.” (Emphasis in original.) State v. Golding, supra,
I do agree with the majority that the present case provides an appropriate opportunity for this court to reexamine and clarify the law on implied waiver as it applies to claims of instructional impropriety under Golding, in view of the fact that our previous pronouncements on the subject have hardly been a model of clarity. Although I believe that our decision in State v. Ebron,
There also is no dispute that the right to a constitutionally adequate jury instruction is a fundamental right. Indeed, this court routinely has concluded that such claims satisfy the second prong of Golding, pursuant to which an unpreserved claim is reviewable only if it “is of constitutional magnitude alleging the violation of a fundamental right . . . .” State v. Golding, supra,
This court also has defined waiver as the “voluntary relinquishment or abandonment — express or implied — of a legal right or notice.” (Internal quotation marks omitted.) State v. Hampton,
The reason for requiring a knowing and intelligent waiver in such circumstances is obvious. As the United States Supreme Court has explained, this “strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the [constitution were not provided. . . . The [constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the (drainers thought indispensable to a fair trial.” (Citation omitted.) Schneckloth v. Bustamonte,
I note that neither the state nor the majority has suggested that a less stringent standard of proof is applicable to the waiver issue presented by this appeal. In the absence of any such claim, I do not address the possible applicability of such a standard.
I hereinafter refer generally to defense counsel’s failure to raise a constitutional challenge to the court’s jury instructions. In fact, in any given case, counsel may have raised one or more such challenges. Of course, each of those challenges represents a preserved constitutional claim, and, therefore, the defendant need not invoke Golding for purposes of obtaining appellate review of those claims. My references to counsel’s failure to raise a claim of instructional impropriety are to any and all such claims that defense counsel did not raise, irrespective of whether counsel raised one or more other claims of instructional error. Of course, the fact that counsel may have raised one or more such claims has no bearing on the extent to which the defendant may or may not be deemed to have waived ail other such claims that defense counsel did not raise.
I note that the state claims, as an alternative to establishing waiver, that counsel may be deemed to have forfeited the defendant’s right to raise a claim challenging the court’s jury instructions on constitutional grounds when the court affords counsel a reasonable opportunity to review the charge and counsel indicates his acceptance of the charge. The majority rejects the state’s contention, explaining that forfeiture, which is defined as “the failure to make the timely assertion of a right”; (internal quotation marks omitted); is not a bar to Golding review of an unpreserved claim of instructional impropriety. In fact, however, the majority effectively embraces the forfeiture doctrine while purporting to reject it. This is so because, as I have explained, counsel’s conduct does not support an inference of waiver, and, consequently, the sole basis for barring the defendant’s claim on appeal stems from counsel’s failure to have timely asserted that claim at trial. Indeed, the fact that the majority’s conclusion is predicated on forfeiture and not on waiver is demonstrated by the majority’s reliance on policy considerations rather than the fact-intensive Inquiry that is necessary to the determination of whether an implied waiver by conduct has occurred.
The majority disputes the logic of this analysis, asserting that, “an admission by counsel that he is unaware of a constitutional claim can mean only one of two things, namely, that competent counsel . . . has intentionally waived the right to raise a constitutional challenge on appeal or that counsel is ineffective because he fails to recognize the existence of a constitutional challenge.” Footnote 25 of the majority opinion. This assertion is incorrect because the majority fails to recognize the vast majority of the claims that it deems waived by competent counsel’s failure to raise the claim, namely, the infinitely large category of constitutional claims that lack merit. Just as the majority has no response to the fact that no competent counsel possibly could conceive of all such claims, the majority also has no response to the fact that, under its decision, counsel is irrebuttably presumed to have waived all constitutional claims that have not been raised, including claims that ultimately are determined to be without merit. Unfortunately, the majority fails to come to grips with this fundamental problem in its analysis.
Of course, in the rare case in which counsel actually intends to waive one or more claims relating to the court’s jury instructions, counsel presumably would so advise the court. In doing so, counsel would be discharging his duty of candor to the court and, at the same time, avoiding an unwarranted inference of waiver, for Golding purposes, with respect to any otherpotential constitutional claims pertaining to the jury charge.
The majority rejects this analysis, asserting, first, that there is “no legal support for a blanket preservation by trial counsel of all constitutional challenges to jury instructions merely on the basis of counsel’s in-court statement that he or she is ‘unaware’ of a constitutional violation,” second, that “such a ploy could open up a ‘Pandora’s box,’ flooding Connecticut courts with cases alleging improper jury instructions on every conceivable issue,” third, that it would make “a mockery of the trial court’s attempt to query and solicit counsel’s input on the jury instructions,” and, fourth, that it “would conflict directly with the mandate of rule 1.1 of the Rules of Professional Conduct that requires adequate preparation by counsel in representing a client, which presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed.” Footnote 25 of the majority opinion. These objections are lacking in merit, primarily because they have nothing at all to do with the fact-based inquiry that, as the majority itself acknowledges, is determinative of whether a constitutional right has been knowingly and intentionally waived by implication. See part II B of the majority opinion (whether reviewing court may find that defense counsel waived constitutional claim by implication depends on “a close examination of the record and the particular facts and circumstances of each case,” including, most importantly, counsel’s “course of conduct”). Indeed, the majority’s four reasons simply highlight the fundamental problem with its analysis; each of those reasons is predicated on policy concerns that, the majority claims, stem from counsel’s express disavowal of waiver and that have no bearing on the issue of whether, as a factual matter, it is reasonable to infer that counsel has knowingly and intentionally waived a constitutional claim or claims despite counsel’s representation to the contrary.
Furthermore, even as a matter of policy, the four concerns expressed by the majority have no basis in fact or law. The majority’s first point, namely, that there is “no legal support for a blanket preservation by trial counsel of all constitutional challenges to jury instructions merely on the basis of counsel’s in-court statement that he or she is ‘unaware’ of a constitutional violation”; footnote 25 of the majоrity opinion; fails for at least two reasons. First, there is no controlling precedent to cite on the issue because the majority’s approach is itself unprecedented; indeed, the majority cites nothing to support its opposing argument. Second, and more importantly, the majority misses the point in asserting that a statement by counsel informing the court that he or she is unaware of any potential constitutional claim constitutes a “blanket preservation ... of all constitutional challenges” to the court’s jury instructions. Id. In fact, such a statement by defense counsel does not serve to preserve any claim or claims; rather, the statement merely serves to ensure that, on appeal, the defendant will not be barred from bringing an unpreserved constitutional claim that otherwise would be reviewable under Golding merely because counsel was unaware of the claim and therefore failed to raise it at trial.
The majority’s second concern also is completely unfounded. A forthright statement by counsel explaining why his or her failure to raise a constitutional challenge to the charge should not be construed as a waiver of any such challenge cannot, by any fair standard, be characterized as a “ploy . . . .” Id. In fact, the majority fails to provide any support for its dismissive and pejorative characterization of such a statement; rather, the majority simply asserts, without any basis for doing so, that the statement, although accurate, is merely a gambit or maneuver. More importantly, there is absolutely no reason to believe that a proper application of the waiver principle will lead to a flood of claims on appeal in which appellate counsel raises “every conceivable [jury instruction] issue . ...” Id. Simply put, the majority’s concern is both unsupported and unsupportable. The majority’s concern is unsupported because the majority provides no evidence, anecdotal or otherwise, to substantiate its bald assertion that accepting defense counsel’s representations on the issue of waiver would result in a flood of claims on appeal. The majority’s concern is unsupportable because there is no reason to presume — again, the majority itself advances no such reason — that appellate counsel will flood this court and the Appellate Court with frivolous claims of constitutionally deficient jury instructions.
The majority also asserts that a statement by counsel disavowing a knowing and intentional waiver of potential constitutional claims would make “a mockery of the trial court’s attempt to query and solicit counsel’s input on the jury instructions” and “would conflict directly with the mandate of rule 1.1 of the Rules of Professional Conduct that requires adequate preparation by counsel in representing a client, which presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed.” Id. This assertion is devoid of merit, as well. Contrary to the view of the majority, it must be presumed that defense counsel seek to represent their clients conscientiously and effectively and, further, that counsel will comply with their professional obligation to attend to matters concerning the court’s jury instructions with diligence and due care. Moreover, there is no basis for the majority’s suggestion that an attorney who fails to identify a constitutionally flawed jury instruction would be violating rule 1.1 of the Rules of Professional Conduct; although it may be that, in some cases, such an oversight would support a claim of ineffective assistance of counsel, there is no legal or factual support for the majority’s assertion that the oversight also implicates ethical concerns. Finally, the majority demonstrates its misunderstanding of the issue presented when it asserts that adequate preparation by counsel “presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed." (Emphasis added.) Id. In fact, under the approach that the majority adopts, defense counsel will be deemed to have waived both meritorious and unmeritorious claims challenging the constitutional adequacy of the jury instructions. Since counsel cannot possibly be expected to anticipate all potential unmeritorious claims that may be raised on appeal, no matter how well prepared counsel might be, there is absolutely no reason to think that rule 1.1 of the Rules of Professional Conduct somehow will be undermined by counsel’s explanation disavowing waiver.
In sum, it is clear that the majority disapproves of the consequences that it perceives will flow from counsel’s disavowal of a knowing and intentional waiver of any instructional impropriety. Putting aside the fact that the majority’s concerns are unfounded, I submit that those concerns do not stem from any logical flaw in my assertion that, under the fact-driven law of waiver, counsel can avoid a finding of implied waiver by expressly disavowing an intent to waive any claim of instructional error. Rather, the majority’s concerns flow from considerations wholly unrelated to principles of waiver, namely, policy considerations that the majority believes militate in favor of denying Golding review in cases such as the present one. As I have explained, however; see footnote 8 of this concurring opinion; the majority seeks to give voice to those policy considerations through a misapplication of the waiver doctrine; in reality, the majority’s decision 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. Simply put, it is self-evident that a defense attorney who, in his capacity as an officer of the court, represents to the court that he is aware of no constitutional infirmity in the jury charge, cannot possibly be deemed to have knowingly and intentionally waived any and all future claims challenging the constitutionality of that charge.
I note that the majority’s decision cannot be squared with the approach that this court has taken with respect to unpreserved claims of prosecutorial impropriety during closing argument. Specifically, we have stated that a defendant is entitled to appellate review of an alleged due process violation stemming from improper prosecutorial argument even though defense counsel sat through that argument and raised no objection. See, e.g., State v. Stevenson,
Although the majority does not say so, the result it achieves seems to be responsive generally to the concerns expressed by the Appellate Court in State v. Reynolds,
Apparently, the majority has carved out an exception for Golding claims alleging the existence of an entirely new constitutional right. Of course, such cases are extremely rare and comprise only a small subset of cases in which defense counsel will not be deemed to have waived a constitutional challenge to the court’s jury instructions. In all other cases, the defendant runs the risk that this court will deem his claim to have been waived and that the habeas court will reject the defendant’s claim of ineffective assistance of counsel.
In fact, contrary to the majority’s conclusion, principles of fundamental fairness and judicial economy militate strongly against the majority’s approach. There are two possibilities when a defendant raises a claim of instructional impropriety under Golding-, either the claim will entitle the defendant to a new trial or it will not. The significant majority of cases are likely to fall into the second category, either because the defendant cannot establish the alleged constitutional violation or because any such violation was harmless. With respect to that category of cases, the interests of justice clearly are served if the appellate tribunal entertains and rejects the claim in accordance with Golding rather than avoiding the claim by treating it as having been waived by implication; in that event, both the defendant and the state know at the earliest possible time that the claim does not entitle the defendant to a new trial, and, moreover, there will be no basis for raising the issue in a petition for a writ of habeas corpus.
The second category of cases, which contains only a very small minority of cases involving Golding claims alleging an instructional impropriety of constitutional magnitude, includes only those cases in which the defendant can establish entitlement to a new trial because of a constitutional violation that was not harmless. As I have explained, in the rare case in which the defendant can prevail on such a claim under Golding, it is unfair to deprive the defendant of a new trial pending the filing and final resolution of a habeas petition. To conclude otherwise, as the majority does, accomphshes nothing and denies the defendant of the opportunity for a retrial in a timely manner.
The majority asserts that, “[ajlthough it might be the better practice for the trial court to read the proposed instructions line by line and ask after each instruction whether defense counsel agrees, we fail to see a meaningful distinction between repeatedly asking counsel if he or she has any issues with the proposed charge and requesting comments from counsel after the court reads each section of the charge.” Again, the majority misses the point. For purposes of ascertaining whether counsel’s conduct constituted a waiver, it makes no difference whether the court takes counsel through the charge line by line or merely asks counsel if he or she has any objection to the charge; in neither case does the record support an inference of waiver. As I previously explained, waiver cannot be found from a record that does not demonstrate counsel’s actual awareness of the existence of a potential claim or claims. When, as in the present case, the record is silent on that issue, it is impossible to tell whether counsel was aware of the claim and intentionally abandoned it, or whether counsel simply did not read the charge as containing any such claim.