State v. Kitchens

for requirement Because, however, recording rejected majority I advocated was which have abide Lockhart, constrained to I am of this court I Accordingly, concur by our in that case. holding result. KITCHENS v. MARVIN STATE OF CONNECTICUT (SC 18421) Norcott, Palmer, Vertefeuille, J., Katz, Rogers, C. McLachlan, Js.* Zarella * seniority listing justices as of The reflects their status this court argument. the date of oral ** 23, officially

Argued 5, January March released 2011 **January slip the date that this decision was released as a operative opinion, procedural purposes. is the date for all substantive and whom defender, with Greco, special public

MeghanL. public assistant Inkster, M. senior was Elizabeth defender, appellant (defendant). for the state’s deputy assistant Feldman, special N.

Laurie Hardy, P. brief, were Gail whom, on the attorney, supervi- Carlson, former attorney, and Herbert state’s appellee (state). for the sory attorney, state’s assistant Opinion Kitchens, defendant, Marvin ZARELLA, J. The conviction, rendered of appeals1 judgment from the in in degree the second jury trial, kidnapping after a and unlawful (a)2 General Statutes 53a-94 § violation of Stat in violation of General degree in the first restraint claims that appeal, On the defendant (a).3 utes 53a-95 § jury, failed to instruct the improperly (1) the trial court judgment appealed of the trial court The defendant from appeal Court, granted Appellate to transfer the and we the state’s motion pursuant (c) and Practice Book § to General Statutes 51-199 to this court § 65-2. kidnapping provides: person guilty (a) § “A is General Statutes 53a-94 person.” degree in when he abducts another the second “ provides: (2) ‘Abduct’ means to restrain § General Statutes 53a-91 holding prevent (A) secreting person or his liberation either with intent to found, threatening likely (B) using place or he is not to be or him in a where physical use force or intimidation.” provides: person guilty (a) “A of unlawful § Statutes 53a-95 General person degree another under circum in the first when he restrains restraint physical expose person risk of such other to a substantial stances which injury.” “ part: provides (1) in ‘Restrain’means § relevant General Statutes 53a-91 intentionally unlawfully person’s in such a movements to restrict a liberty by moving substantially him from with his manner as to interfere place another, by confining place him either in the where the one moved, place without in a to which he has been restriction commences or . . consent. .” Salamon, accordance with State

in 287 Conn. 509, 949 A.2d 1092 (2008), confinement or movement of the victim had to exceed that which was incidental or necessary to the commission of the underlying offenses, included in its (2) instructions the conduct statutory element of the definition of intent under Gen eral Statutes 53a-3 (11),4 though *even kidnapping § specific unlawful restraint are intent crimes.5 We dis agree and, affirm the accordingly, judgment of the trial court.

The record reveals the following relevant facts and procedural history. night April 19, On the victim, Ward, Jennaha was playing cards with her godfa- ther, Sears, story Ronald at Sears’ apartment second city cards, Hartford. While playing the victim and eat, Sears decided to purchased and Sears went out and shrimp fry. for them to prepared The victim then shrimp while Sears heated cooking oil a cast iron they skillet. While were eating shrimp, the defendant phone called Sears’ cell looking for the victim, with whom the defendant had been a five month extramar- ital relationship that the recently victim had ended. The defendant told the victim that he was around the comer 4 provides part: “(11) person § General Statutes 53a-3 in relevant A acts ‘intentionally’ respect by with to a result or to conduct described a statute defining objective an offense when his conscious is to cause such result or engage in such . . . .” conduct 5 jury’s finding guilt respect The defendant also claims that the with kidnapping charges legally to the and unlawful restraint inconsistent with finding guilty respect burglary because, its degree of not in the second “[b]y [finding guilty] burglary, jury necessarily him not concluded did not intend to commit [the defendant] unlawful restraint or apartment question other crime within the incident in [the] [where took place].” argument court, however, At oral before this the defendant conceded precluded by Arroyo, that this claim is our recent decision 292 558, denied, (2009), Conn. 973 A.2d 1254 cert. 559 U.S. 130 S. Ct. (2010), subsequent filing 175 L. Ed. 2d 1086 which was released principal appeal, his brief in this and which we concluded that “claims legal inconsistency acquittal between a conviction and an are not review Id., able.” 586. she would and asked whether apartment from Sears’ said that and the victim him, and talk to come down speak not intend to victim, however, did would. The she to lоck went downstairs Rather, she to the defendant. inside. not get make sure that he could the door to she landing, the first floor the victim reached When the door to window above up to look out the jumped As soon as yet. had arrived the defendant see whether door, through he burst feet, back on her she landed outside. by pulled and her clothing her her grabbed say that she was heard a woman After the defendant the victim her police, he calling again grabbed upstairs her back inside clothing dragged apartment. Sears’ the defendant asked upstairs apartment, in the

Once relationship and why she had ended their the victim apartment her from physically6 leaving blocked the alter- Following to run out the door. when she tried and the vic- between the defendant cation that ensued dispute take their which Sears asked them to tim, during bums outside, degree she sustained first and second skillet after her head made contact with the to her face then fled the oil.7 The defendant containing frying police for the at which time Sears called apartment, feet, approximately six four testified that the defendant was The victim approximately pounds physically strong. tall, weighed and was inches testimony trial, jury apparently at which the The of Sears and the victim apartment, credit, that, upon arriving the defendant back in the did not splashed table, which time he the victim to sit down at the kitchen at had told table, gin glass that been on the in the face with from a bottle or had her eyes eyes causing her out in the her to bum. After the victim washed hall, she returned to the kitchen where she saw bathroom down the yellow utility opened in his hand. After he defendant with a black and knife ashtray. knife, with a marble the victim hit the defendant the face hair, scarf, grabbed her her head and then her The defendant then stove, dragged approximately toward the where he forced her eleven feet testified, however, that he did not face into the skillet of hot oil. Sears her only oil; actually push into the he heard the defendant the victim’s face see her scream.

and assistance. The victim received treat- emergency ment for her facial Hospital bums at Saint Francis Center, Medical and the Bum Center at Bridgeport Hospital. police

After a the defendant was investigation,8 arrested, charged and the state him in a five count information with assault in the first in violation degree attempt General Statutes 53a-59 (a) (1), § to commit assault in the first in degree violation of General Stat- utes 53a-59 (2) and 53a-49 in the (a) (a) (2), burglary §§ second degree violation of General Statutes (Rev. to 53a-102 2007) (a) (1), kidnapping § in the second degree in violation of 53a-94 and unlawful (a), § restraint the first degree violation of 53a-95 (a). Following § jury trial and the trial court’s denial of defense counsel’s oral motion for judgment acquittal, returned a verdict of not guilty assault, attempted on the assault burglary but charges, guilty on the kidnapping unlawful restraint charges. The trial court then ren- dered judgment conviction in accordance with the jury’s verdict and sentenced the defendant to a total effective years sentence of twelve imprisonment, exe- suspended cution after eight years, years proba- and five appeal tion. This followed.

I The defendant first claims that the trial court failed jury, instruct the in accordance with the line of cases Salamon, starting supra, 287 Conn. 509, that it could not find the defendant guilty of kidnapping if the restraint or movement of the victim was limited presence hospital, Because of the of her husband at the as well as the arrested, being fact that she was concerned about the defendant the victim initially Joseph Mauro, investigating case, told Officer who was that she injured proceeds game. had been in an altercation over the from the card police allegations against She did not inform the of her the defendant until approximately later, signed following one week when she a sworn statement an interview. necessary

to that or incidental to the commission of Relying offense. on footnote 35 underlying Salamon, in majority opinion argues the defendant he was entitled to this instruction because reasonable in jury could have found that the restraint this case was assault, incidental to the offense of notwith- underlying jury the fact that the had found him not standing guilty response, state, on that In on our charge. relying v. Winot, recent in decision n.7, 988 A.2d 188 contends that a new trial is (2010), under Salamon because the defendant had required completed the crime of before in kidnapping engaging the conduct that rise gave attempted to the assault and acquitted, assault of which he was and that the charges force underlying the assault was different from charges accomplish that utilized to The state kidnapping. acquittal also contends that the on the charges assault Salamon instruction rendered failure to give harmless error not reversal requiring acquit- because an tal on those is a charges binding determination that there were no underlying and, further, crimes would create confusion on retrial. We with the state and agree conclude acquittal that the on the underlying assault the lack of a Salamon instruction rendered charges harmless error.

The record reveals the following additional facts and procedural history. The case was tried in February late early March of four prior July months 1, 2008 release of our decision in State v. Salamon, supra, 287 Conn. 509. The trial court’s instruction on kidnapping the second did degree not direct the to consider imposed whether the restraint exceeded necessary or incidental to the underlying assault Further, crimes.9 request defense did not file a part: We note that the trial court instructed relevant “The charged kidnapping defendant is in count four with the crime of in the degree, Code, provides, second in violation of 53a-94 the Penal which [§] pertains case, person guilty kidnapping as it to this as follows: A degree person. the second when he abducts another exception to the instructions or take an jury, effect. as to that given, preserve failure to the defendant’s

Notwithstanding kidnapping of the trial, inteipretation at our this issue in Salamon “may applied present be to the statutes judgments of the rule that general case because application by prospective terms limited to are not their ... retroactively to cases that presumed apply are to Waterbury, 244 Marone 1, .... v. Conn. pending are marks quotation 725 10-11, (1998).” (Internal 707 A.2d Thompson, App. 140, 154, omitted.) State 118 Conn. 294 Conn. 986 denied, A.2d 20 cert. (2009), Hampton, see also A.2d 1057 (2010); Marone A.2d 1089 n.16, (2009) (following that Salamon is applicable pending to concluding nearly years prior its appeal release). in case tried two to “We with the well established standard begin to the trial governing challenge review the defendant’s jury Our review of the defendant’s court’s instruction. requires that we examine the court’s entire claim [trial] you guilty of this “The elements of the crime: For to find the defendant beyond prove charge, the state must a reasonable doubt that the defendant means, pertains case, victim. ‘Abduct’ as it to this to restrain abducted the by person prevent using threatening the a with intent to his liberation physical or intimidation. The term ‘restrain’ means to restrict use of force intentionally unlawfully person’s in a movements such a manner as to liberty by place substantially moving him interfere with his from one place confining him where the restriction com- another or either place or in a to which he has been moved without consent. As used mences here, any but is not limited to means whatsoever. ‘without consent’ means my apply will instructions on intent and them here also. You recall earlier that, April 19, 2007, “Now, four on or about the state contends count Street, Hartford, Connecticut, evening, the defendant in the late at 15Martin hand, defendant, denies all . . . abducted The on the other [the victim]. unanimously you allegations. the state’s If find in count four that the state beyond necessary satisfy you failed to a reasonable doubt as to of the has explained you, you elements, I must find the defendant not which have you beyond guilty. hand, a reasonable On the other if the state has satisfied elements, your doubt of the existence of each of these essential verdict charged guilty of the offenses as on this count.” should be charge reasonably possible determine whether it is that the could have been misled the omission of the . . . requested request instruction. While a that is relevant to the issues in a case and that charge accurately applicable honored, states the law must be precise a court need not tailor its charge [trial] letter of ... request. requested such If a charge in substance court’s failure to given, give [trial] in exact conformance with the words of the request will not constitute a for reversal. . . . ground long law, adapted As as are correct in [the instructions] to the issues and for guidance sufficient ... we will not view . improper. the instructions as . . Additionally, [impropriety] we have noted that [a]n instructions in a criminal case is . . . reversible when it is shown reasonably possible [improprie- that it is for reasonably probable of constitutional dimension or ties] for nonconstitutional [improprieties] that the [was] misled.” (Citations omitted; quotation internal marks Hampton, supra, Statе v. omitted.) 293 Conn. 458.

In State v. Salamon, supra, 287 Conn. we “recon- sidered and jurisprudence reversed our long-standing that holding encompasses crime of kidnapping necessary restraints that are or incidental to the com- underlying crime; see, e.g., State separate mission of a v. Luurtsema, 179, 201-203, 811 A.2d 223 (2002); that concluding legislature, in replacing ‘[o]ur broadly a single, provision worded kidnapping with a scheme gradated distinguishes that from kidnappings by unlawful restraints presence pre- of an intent to vent a victim’s liberation, intended to exclude from the scope of the more serious crime of kidnapping and its penalties severe accompanying those confinements or merely movements of a victim that are incidental necessary for the commission of another crime ” that victim.’ State DeJesus, against Conn. 429, 953 A.2d 45 We (2008). emphasized, however, that complete a refutation represent holding [did]

“[o]ur prior kidnapping our principles established jurisprudence. First, kidnapping, in order to establish any minimum required the state is not to establish When or of movement.10 period degree confinement merely movement is incidental to that confinement or crime, however, the confine- the commission of another ment movement must have exceeded that which or Salamon,

necessary to commit the other crime.” 546. may be con- emphasized We also that “a defendant victed of both and another substantive kidnapping prior time or after the commis- if, to, during crime at crime, sion of that other the victim is moved or confined way independent in a has criminal significance, that an extent is, exceeding the victim was restrained to necessary accomplish complete that which was the other crime. Whether the movement or confinement merely necessary to and for of the victim is incidental depend particular will facts and another crime Consequently, circumstances of each case. when reasonably supports finding evidence merely restraint was not incidental to the commission other, separate crime, of some the ultimate factual jury.” Id., must be made 547-48. determination juries trial to instruct Indeed, making we directed courts “to consider the various relevant that determination the nature and duration of the victim’s factors, including by the whether defendant, movement or confinement during that movement or confinement occurred separate offense, whether commission separate in nature of the restraint was inherent prevented the restraint the victim from offense, whether assistance, whether the restraint reduced summoning involving reiterate[d], however, kidnapping convictions minis “We subject challenge vagueness under the doctrine.” cule restraints remain Salamon, State 287 Conn. 546 n.31. the defendant’s risk of detection and whether restraint a significant danger created or increased the posed by victim’s risk of harm independent of that separate Id., offense.” 548. Salamon, which the

Moreover, emphasized we “ultimately defendant was not tried for assault,” that “a defendant is entitled to an instruction that he cannot be convicted of if imposed the restraint kidnapping merely the victim was assault, incidental to the regard- try less of whether the state elects the defendant for assault, reasonably support because the facts would an assault Id., conviction.” 550 n.35. numerous Citing sister cases, state we noted in opinion footnote 35 of that conclude otherwise would the state give carte “[t]o deprive blanche to the defendant of the benefit of such merely by instruction him declining charge the underlying crime, which . . . generally carry will a far possible less serious maximum penalty than the kidnapping Id., 551 charge.” n.35. Salamon, on this

Relying footnote from the defendant claims that he is trial,11 entitled to a new even though he DeJesus, supra, previous In State v. 288 Conn. we overruled our Sanseverino, (2008) decision in State v. 287 Conn. 949 A.2d 1156 (Sanseverino I), appellate remedy to the extent that it had directed an of judgment acquittal because, kidnapping charges of on the “under the facts [Sanseverino], no guilty reasonable could have found the defendant kidnapping degree in the first on the basis of the evidence that the proffered Sanseverino, supra, 624; state at trial.” State v. see also State v. Sanseverino, 574, 589, (2009) (Sanseverino II) 969 A.2d 710 upon (following I, giving DeJesus reconsideration of Sanseverino state “the opportunity retry to decide whether to the defendant on the kidnapping degree,” concluding in the first that “it is not the function state”). DeJesus, emphasized of this court to make that decision for the In we appropriate remedy impropriety that “the for the instructional identified in kidnapping Salamon is to reverse the defendant’s conviction and to remand the case to the trial court for a new trial. It is well established that instruc impropriety appropriate remedy tional constitutes ‘trial error’ for which the trial, judgment acquittal.” DeJesus, supra, is a new rather than a 434; id., (“[A]ny insufficiency proof see also was caused subsequent change Salamon, government’s in the law under rather than the Accordingly, proper remedy failure to muster sufficient evidence. the is a attempted the assault acquitted underlying

was injuries. arising from the victim’s facial charges assault a Salamon instruc- First, give We the failure to disagree. se; it be harmless per tion is not reversible error is particular case, the of a as demonstrated facts Hampton, supra, in our decision recent we that the defendant’s Conn. in which concluded failure to receive Salamon instruction harmless beyond because, although defen- a reasonable doubt the kidnapping and sexual charged dant been with both had assault, contain evidence that “the record [did] contrary rationally finding by could lead to a the the defendant’s restraint the victim as whether in, merely to, incidental the had been inherent [addi- presented crimes. The state overwhelm- alleged tional] accomplice] the ing evidence that defendant [his kidnapped had the victim and had driven around Hart- Hartford her for well over three ford and East any hours the defendant’s commission of alleged before see Id., 463; id., other crimes commenced.” also period this which (“The passage time, substantial clearly the at trial, was uncontested defendant prevent the defendant’s intent to the victim’s show[ed] period or to longer greater liberation for a of time necessary subsequent than that to commit degree crimes. restraint of victim was not His incidental offenses.”). additional Winot, footnote 7 State

We persuasive also find 762-64, majority in which responded justices’ conclusion that dissenting Salamon required of a instruction absence case to a new trial defendant receive because supported conviction kidnap- evidence that his for ping degree in the second conduct “disclose[d] assault crime, i.e., could constitute another in the third jury properly new trial instructed on the of intent element [at which] Salamon.”). the dictates of accordance with

459 degree, peace, breach of the creating public distur- bance disorderly conduct, or jury reasonably which a could wholly find the restraint was Id., incidental.” 784 (Katz, J., dissenting). Concluding that the rule of Salo- mon to Winot, inapplicable majority empha- sized that “there was presented no evidence at trial suggesting defendant, when he grabbed the arm, victim’s was in process of committing another crime her against to which the restraint potentially was incidental”; id., n.7; and disagreed with the dis- justices’ senting assertion that the evidence “disclosefd] conduct that could constitute another crime . . . there was no evidence that the defendant [because] injured or struck the victim. Accordingly, could not find that the defendant’s restraint of the victim was incidental to the commission of assault the third degree peace breach of the in the second degree.” (Internal quotation marks omitted.) Id. We also noted that “the evidence was that the overwhelming defen- dant, when he accosted the victim, prevent intended to her liberation”; id., 763-64 n.7; which meant that, “even if the defendant’s restraint of the victim also could be found to constitute violent, tumultuous or threaten- ing proscribed by behavior our statutes criminalizing public creation of a disturbance . . . and disor- [the] derly conduct ... no reasonably could conclude that the kidnapping was incidental to his commission of those crimes, rather than the converse.” (Citations omitted; internal quotation marks Id., 764 omitted.) n.7. Finally, we “disagree with the defendant that he [d] entitled incidental instruction in connection [was] with the charge injury of risk of to a child . . . .’’Id. Most tellingly respect to the present case, we Winot that the emphasized in Appellate Court’s reversal in that case of the injury defendant’s risk of conviction for insufficiency of the evidence meant that he would not be retried on that charge, and, therefore, “a remand rule on the incidental an instruction matter for

of [the] illogical injury would to risk of been] in relation [have v. Com See Walker jury. wholly confusing 122-24, 622 S.E.2d App. 114, monwealth, 47 Va. defendant inapplicable rule (incidental (2005) [when] S.E.2d 476 Va. aff'd, 272 robbery), acquitted 429, People Robbins, App. Mich. v. also ; see (2006) inapplicable rule (1984) (incidental N.W.2d 333 433, 346 mоtion for defendant’s granted trial court [when] State v. charge); assault underlying verdict on directed French, (1981) (incidental A.2d 1087 320, 321, 428 139Vt. acquitted of sexual defendants inapplicable rule [when] Winot, omitted.) State v. (Citation . . . .” assault) n.7. supra, 764 case, we conclude the record this reviewed

Having offenses, charged multitude of that, light assault, attempt arising to commit assault and including the defendant events, from the same continuum See State have received Salamon instruction. should We how- Salamon, supra, agree, 287 Conn. 550 n.35. v. of such an instruction that the lack ever, with the state because under the circumstances was harmless kid- other than acquitted charges was of all defendant that the restraint, indicating thus and unlawful napping respect with allegations victim’s only believed forcibly apart- her from moving to the defendant’s outside and to another area building’s ment vestibule apartment, where up inside and to Sears’ then back Put differ- temporarily. her then confined defendant jury’s disbe- verdict, which indicated ently, jury’s assault; see footnote allegations victim’s lief of the that there was finding is a conclusive opinion; 7 of this kidnapping charge. separate underlying crime no Hampton, Conn. 463 See (concluding v. failure to receive Salamon instruction that defendant’s doubt, though even beyond harmless reasonable and sexual kidnapping with both charged had been he accomplice] “the defendant assault, because [his . . . around and had driven the victim kidnapped had defendant’s hours before the well over three with her for commenced”); crimes any other commission alleged App. 433 supra, 131 Mich. People Robbins, see also incidental to instruct on declined properly court (trial verdict on of directed because, after granting rule any suggested “no one charge, assault underlying be found co-equal offense could lesser or underlying no evidence of committed, and there was have been 80 N.Y.2d People Gonzalez, offense”); such (1993) (con N.E.2d 589 N.Y.S.2d 833 148, 153, 603 conviction aris kidnapping degree that second cluding Brooklyn,” streets of odyssey “a on the lengthy from ing should not have been assault, sexual prior alleged assault attempted for sexual acquittal merged discrete crime abduction constituted the because “[t]he already was com which degree kidnapping of second was elements, alleg before the victim pleted, all its restraint edly sexually assaulted,” and because “[t]he necessary and integral minimal intrusion was not a inseparable . . . another crime simultaneous [or] a crime in crime,” but, rather, “was from another 745 App. 22, 26-27, v. Div. 2d People Cruz, itself’); inapplicable when “there N.Y.S.2d 528 doctrine (merger evi restraint but insufficient is sufficient evidence of appeal denied, 99 crime”), charged dence of the other 572, (2002); N.E.2d 752 N.Y.S.2d 594 N.Y.2d inap rule French, supra, (incidental v. 139 Vt. 321 State acquitted of sexual assault plicable when defendant every element, if proven “the kidnapping, because Commonwealth, on its Walker own”); can stand claim App. 122, 124 defendant’s (rejecting 47 Va. of abduction conviction that he was entitled to reversal because it ignored that “detention should be ground robbery” defendant the claimed when was incidental to inci robbery thereby rendering acquitted charge, inapplicable). dental rule

Moreover, we with the state that agree remanding the case for a new trial on this would create ground confusion, risk of as well as at illogical instructions trial, particularly the new given distinction between uncharged crimes and crimes of which a defendant State acquitted. has been Cf. v. Smith, 611-12, 960 A.2d 993 (2008) (noting distinction between prosequi, nolle which preinforma- restores defendant to tion permits status and “the state prosecu- continue [to] only tion of a defendant after a new filing information making a new arrest of the defendant within the limitations,” statute of and dismissal of charges prejudice). Indeed, the defendant cannot be retried for attempted assault or acquittal assault because of his on those counts at Tate, trial; see, the first e.g., 262, 284, Conn. 773 A.2d 308 and the (2001); intro- duction of evidence of the victim’s assault claims, which jury already rejected had on the basis of its verdict case, unduly this could be prejudicial precluded at that new trial. Accordingly, we conclude that the lack of a Salamon instruction was harmless and does require a new trial.

II The defendant next claims that improp- the trial court erly instructed the on the element of intent neces- sary to find the defendant guilty of kidnapping and unlawful restraint. See General Statutes 53a-3 (ll).12 § The specifically defendant claims that the trial court’s instruction that “a person acts intentionally with respect to a result or to conduct when his сonscious objective is to cause such result or engage in such improper conduct” was because and unlaw- kidnapping specific ful restraint are intent crimes to which the portion conduct of the statute apply. does not The defendant exception concedes that no was taken to the opinion. See footnote 4 of this requests our review at trial and instruction challenged 239-40, 567 A.2d Golding, under State the defendant responds The state (1989). claim when jury instruction “forfeited” his waived or afforded multiple opportunities the defense ignored any flag the instructions trial court to examine The to correct them. was still time errors while there cannot sat- that the defendant alternatively argues state jury could because the Golding isfy prong the third guilty as to find him reasonably have been misled so with the state agree intent. We specific finding without Golding. under prevail cannot that the defendant facts and relevant following The record reveals the February 2008, the state filed history. procedural On suggested changes five request charge containing The follow- burglary. instructions on assault to the noted on the record when the trial court ing day, that he did not had stated in chambers defense counsel if that was and asked request charge intend to file a days was. Two replied that it case, still the charge conference later, the court held on-the-record it proposed previously charge in which it referred to After a brief discussion parties.13 given had attorney concerning (prosecutor) assistant state’s defense counsel instruction, the court asked the assault he wanted to discuss. Counsel anything if there was attorney (prosecu outset, addressed the assistant state’s At the the court colloquy counsel, following tor) ensued: and the and defense you you you know, probably have or know ... both still “The Court: As my just things, part general so is there what the first objection request change that? to that or ago, months I didn’t review mine from about sixteen Prosecutor]: “[The time, objection imagine my I can’t I no at that so but recollection is had changed. it’s Okay. Court: “The just it at that. I’ll leave Prosecutor]: “[The just you generally give what I discuss.” I’ll “The Court: prose- previously given appears Accordingly, trial had it that the court proposed copies instructions. written cutor and defense counsel that prosecutor’s

indicated he would like to discuss the request proceeded which the court to con- charge, proposed sider. Defense counsel that the lan- agreed fairly guage stated the law and indicated that he either objection preferred had no or the charge. standard At point, one defense counsel asked that the court use “pejorative” less language its instruction on the defendant’s decision not to testify, and the court agreed to do so. At the conclusion of the conference, court attorneys, asked the “[a]nything else about the charge . . . ?” replied, Defense counsel Your I “[n]o, Honor. don’t think so.” After certain addressing matters, other the court attorneys advised that both should refrain from defining legal terms in their summations and should limit arguments their to the facts that would satisfy the elements of charged par- crimes.14Both ties agreed, with defense counsel responding, “[f]air enough.” days

Several later, the court parties informed the an on-the-record conference that it completed had attorney instructions and that each should obtain a copy for discussion at a prosecutor future The meeting. responded stopped by he had the courthouse the previous day,15 completed had read the instructions and say you law, The court stated as follows: “When I can’t discuss the what you mean, you however, I mean is can’t define terms. That doesn’t can’t refer to facts that constitute the law like the elements of the offense. What dangerous know, facts, you claiming is a instrument? You what are dangerous you you claiming, know, instrument? Things What are intent? you suggest legal like that. I going don’t want to can’t use the terms that I’m use, you explain explain but can’t it. You can the facts that constitute legal terms, explain are, ‘dwelling,’ and then I’ll what the terms like you say, permission you know, if want to ‘he had to be there or he didn’t permission’ principles facts, have .... can refer to the [Y]ou just say, ‘okay, building dwelling,’ you know, things but not is a —don’t say.” going that I’m apparently copies The court had left written instructions judicial Hartford, with the clerk’s office in the district of from which the prosecutor copy. had obtained his of which none suggestions, make some ready counts, unlawful restraint kidnapping or related to the had done if defense counsel not know but that he did had that, prosecutor if the replied The court the same. that time. hear them at it wanted to any suggestions, prosecu- instructions, the copy of the from his Reading suggested error and a typographical tor remarked on instruction on credi- one other minor correction court discussion, of the bility. At the conclusion had asked if he also counsel and turned to defense instructions, to which counsel been able to examine downstairs, my copy is Honor, Your replied, “[a]ctually, then The court any major have revisions.” but I didn’t to get we don’t have “All So then right. concluded: any- said Okay.” party Neither We’re done. together. adjourned. court matter, and the further on thing arguments, made their Thereafter, parties closing court first jury. The and the court instructed under count one— the element of intent instructed on statute, defined our that, degree first “[a]s assault — or intentionally respect to a result person acts objective is to cause when his conscious conduct in such conduct.” For each such result or to engage repeated thereafter, offense the court substantive as follows: instruction on intent or stated preceding I gave on intent that “You will recall the instructions them here explained apply I count one and you, when instructions, prosecu- Upon completion also.” exceptions. Defense counsel tor stated that he had no Neither exceptions. he also had no volunteered that jury delibera- made other comments party tions followed. the state’s that the defen- argument

We first consider claim. his instruction dant waived or “forfeited” decision in State contends that our recent The state A.2d 17 656, 681-82, (2009), Conn. Ebron, 292 claims are instruction which we concluded reviewable unless the error has been induced or invited by the defense, represents departure from our prece- dent that warrants reconsideration because it incor- rectly treats induced only error as the form of waiver, and, even if acquiescence defense counsel’s in the instruction as given does not rise to the level of induced error, invited conduct short of induced error constitute waiver. The specifically state argues that waiver when, should be found present as in the case, defense acquiesces in the instructions follow- ing meaningful opportunity to review them outside the rush trial, participates of in an on-the-record charge conference to allow designed identify counsel to errors they while still can be remedied and exception takes no after the has delivered, been when clarifying instructions can be given. responds The defendant that the state’s claim is untenable in light of our recent decision in Ebron, in which we considered a claim involving similar facts explicitly held the claim had not been waived and was reviewable under Gold- ing. We with the agree state that incorrectly Ebron construed the law and that the claim in present case has been waived.

Under Golding, “a prevail defendant can on a claim preserved constitutional error not only at trial if all of the following conditions are met: (1) record is adequate to review the claim alleged error; (2) claim is of constitutional magnitude alleging the viola- tion of a fundamental right; (3) alleged constitu- clearly tional violation exists and clearly deprived the defendant of a fair trial; subject if (4) to harmless analysis, error the state has failed to demonstrate harm- lessness of the alleged beyond constitutional violation a reasonable doubt.” (Emphasis in State v. original.) Golding, supra, 213 Conn. 239-40. “The first two Gold- ing requirements involve whether the claim is review- able, and the second two involve whether there was

467 (Internal quo trial.” error a new requiring constitutional Fagan, 69, 280 omitted.) State v. Conn. tation marks 1269, denied, U.S. 90, (2006), 905 A.2d 1101 cert. (2007). L. Ed. 2d 236 1491, 127 S. Ct. may waive prosecution

“A in a criminal defendant rights.” (Internal more his or her fundamental one or Fabricatore, State quotation omitted.) marks usual 469, A.2d 872 478, (2007). Conn. “[I]n Golding situation, raises a the defendant claim trial, preserved while not at at least appeal [that], waived ... constitutional claim not at trial. [A] satisfy ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​​‌‌​​​‌‌‌‌​‌​‌​‌‌​‌​‌‌‌​​‌​​‍the third prong has been waived does simply Golding circumstances, in such we because, test injustice done to either cannot conclude that been] [has ... constitutional violation party alleged or that clearly clearly the defendant of deprived exists and omitted; quotation . internal (Citation fair trial . . .” Holness, omitted.) marks 958 A.2d 754 (2008). may by waived right

“The which a be mechanism . . . For . . . varies at stake. according right person- defendant must rights, certain fundamental the . . For ally rights, make an informed waiver. . other however, may by be action of counsel.” waiver effected omittеd; quotation omitted.) internal marks (Citation Correction, Mozell Commissioner of 62, v. among 967 A.2d 41 This court has stated that 71, (2009). by be waived the action of counsel rights a in a is the of defendant to proceeding criminal Fabricatore, State v. proper jury See, e.g., instructions. Supreme Conn. 481-82. The United States York New view, expressed stating Court has similar Hill, S. 145 L. 2d 560 110, 659, 120 Ct. Ed. U.S. basic that the “[although rights there are (2000), that, fully attorney cannot waive without the informed client, lawyer publicly acknowledged consent of authority to the con- manage has —and must have —full duct of the trial. ... many As to decisions pertaining to trial, the conduct of the the defendant is deemed bound the acts of lawyer-agent his and is considered facts, have notice of all notice of which can be charged upon attorney. . . . Thus, decisions counsel are generally given effect as to what arguments pursue . . . evidentiary objections what to raise . . . and what agreements conclude regarding admission of evidence .... Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last.” (Citations omitted; quotation internal marks Id., omitted.) 114-15; see also Babul, United States v. 476 F.3d 498, 500 (7th Cir.) (“[C]hoices prac about trial tice and management a given testi [witness’] —should mony presented? be hearsay objection be [S]hould made? language proposed should be for the [W]hat instructions? —are committed counsel, only they because are numerous [asking the defendant each time would be impractical] but they also because are the sort of choices for which legal experi training ence are most helpful.”), denied, cert. 551 U.S. S. Ct. L. 168 Ed. 2d 283 (2007). present

In the case, the adequate record is for review and the claim of instructional error on an element of the crime is of constitutional magnitude because it implicates the process due rights of the See, defendant. e.g., Fabricatore, supra, 281 Conn. 477. Accord- question ingly, before this court is whether defendant’s claim has been waived under the third prong of Golding.

A It is well established in Connecticut that unpreserved improper jury claims of instructions are reviewable under Golding they unless have been induced or implic- itly waived. “The term error,’ ‘induced or error,’ ‘invited has been defined as party error that a cannot ‘[a]n

469 con party, through because the complain appeal of on trial to make prompted or court encouraged duct, Dictionary Ed. (7th Black’s Law ruling.’ the erroneous Gibson, State v. omitted.) . p. 563 . . .” 1999) (Citation A.2d This court has 55, 66, (2004). 850 1040 270 Conn. appellate review undeserving induced error found claim when the defense of a instruction the context jury instruc affirmatively requested challenged has Coward, 972 State v. 305-306, Conn. 296, 292 tion; e.g., Cruz, State 97, 106-107, v. 269 Conn. A.2d 691 (2009); Walton, State v. 32, 227 67, 445 Conn. (2004); 848 A.2d Hinckley, State v. Conn. A.2d 990 198 (1993); encouraged or has or n.2, (1985); 502 A.2d 388 refrain from an instruction prompted giving the court to Gib See have given. that should been arguably son, supra, 67-68. relin

By comparison, “[wjaiver is intentional privi a known quishment or abandonment of assent, It assent ... involves idea of lege. applicable . The understanding. an act of . . rule is deny permitted no one shall be that he intended . . . consequences the natural of his acts and conduct. necessary . . In to waive a claim of law it is . order of the claim party that a be certain correctness efficacy. It is if he knows of legal enough and its reasonably possible of the claim and of its existence State efficacy.” quotation marks (Internal omitted.) Tyson, App. 607, 612, 862 (2004), 86 Conn. A.2d A.2d “Con denied, cert. 1000 (2005). consistently a party courts have held that when necticut claim fails to raise in the trial court the constitutional affirmatively presented acquiesces on appeal party waives such claim order, trial court’s Golding]." (Internal quotation marks omitted.) [under Id., 613. Appellate this and the Court have found

Both court required waiver broader than those implied grounds 470 finding

for a induced error. These include counsel’s exception object take to instructions failure to or acquiescence in, expressed or satisfac together (1) with, following opportunity tion the instructions an to them, review at trial to (2) underlying references acceptance of issue consistent with the instructions Brewer, State ultimately v. given. See, 283 Conn. e.g., Fabricatore, State 352, 360-61, 927 A.2d v. (2007); 825 State v. Collazo, supra, 281 Conn. 115 Conn. 481-82; 752, 760, App. (2009), denied, 974 A.2d 729 cert. 294 Duncan, State v. 929, Conn. 986 (2010); A.2d 1057 96 533, Conn. App. 558-60, 687, denied, 901 A.2d cert. 280 Wortham, State v. 912, Conn. 908 A.2d 540 (2006); 80 App. 635, Conn. 836 A.2d 647-50, 1231 cert. (2003), State v. denied, 901, 268 Conn. 845 A.2d 406 (2004); 78 Conn. Hersey, App. 141, 157-59, 1183, 826 cert. A.2d 266 Conn. v. Arluk, State denied, 903, 832A.2d 65 (2003); App. 181, 192-93, State 75 Conn. 815 A.2d 694 (2003); v. Cooper, 661, 38 Conn. App. 664-70, 773, 664 A.2d denied, 908, cert. 665 A.2d 903 cert. (1995), denied, U.S. S. Ct. L. 517 116 134 Ed. 2d The (1996). rationale for to review declining instruction claims when the instructional error was or the implicitly precisely induced claim was waived is thе same: allow defendant to seek reversal “[T]o [a] ... his trial has strategy failed would amount [after] him allowing to . . . ambush the state the trial [and appeal.” quotation with that claim (Internal court] Gibson, supra, State marks v. omitted.) Conn. 67 Fabricatore, see also State error (claimed induced); supra, 481-82 error (claimed waived).

Despite this substantial precedent, appeared we end to in Ebron, signal concept implied waiver in which we had concluded that defendant not right Golding Ebron, See waived his review. Ebron, 681-82. lax Conn. defense counsel did request but participated file had and the court prosecutor with the discussions at trial and had made one instructions regarding proposed the to the an instruction unrelated request concerning Prior appeal. Id., closing 677. defendant’s claim on its on the record trial court summarized arguments, the attorneys proposed the regarding discussions with both inquired whether either side and then instructions or any corrections. changes wanted make further responded negative. 678-79. Defense counsel Id., jury, defense Id., 678. After the court instructed he had exception and confirmed that counsel took no We Id., as 679. objection given. no to the instructions in Ebron that, “although concluded nonetheless trial acquiesced in the that the [defense counsel] did not ultimately jury, supply, court he gave . . . for, the . . . at issue language otherwise advocate appeal. differently, is no indication Put there [on] actively induced the trial court to give the defendant challenges appeal, . . . that he . . instruction . on under Golding.” which claim reviewable renders [his] Id., reaching 681-82. In our conclu- (Emphasis added.) Ebron, Madigosky, we relied on State v. 291 sion A.2d which we cited n.7, Conn. 35 966 730 (2009), at proposition “acquiescence for the trial to [a] jury appeal, more, without challenged instruction preclude does not induced error that would constitute Golding Ebron, State supra, . . .” v. review under . 682. Foster, in State v.

Shortly we thereafter, concluded and State 327, 339-42, (2009), 293 Conn. 977 A.2d 199 Hampton, supra, 444-50, that, although v. jury claims in cases were of consti- instruction those they not reviewable under tutional were magnitude, Golding waived implicitly had because defense to and exception expressing them to take failing multiple on the occa- satisfaction with the instructions views. when trial court had solicited counsel’s sions Ebron is thus preceded with the inconsistent cases that directly implied followed it on the issue of waiver. Hampton, v. See, supra, (defendant e.g., Foster, supra, State v. “waived” instruction claim); [jmy “waived his (defendant claim”); instruction] Holness, State v. Conn. 542 supra, (defendant could prevail “squarely because claim fell instruction Brewer, State doctrine”); within the waiver 283 Conn. 353 “waived (defendant at trial claim instruction”); State regard [challenged] Fabricatore, supra, 281 Conn. 481 (defendant “waiv[ed] his on right challenge appeal”). instruction There is no in suggestion foregoing cases that we used improperly the terms “waiver” or “waived” to Consequently, describe induced or invited error. to the Ebron that in extent we concluded the claim of an improper jury instruction is reviewable under Golding only if the instructional error is not or invited, induced if object even counsel fails to or demonstrates other conduct that he or she is satisfied with the as charge given, contemporane- such conclusion at odds is similar facts.16 Ebron ous decisions thus involving repre- distinguish Insofar as Ebron stated that Fabricatore and were Brewer Madigosky, supra, 28, required on and able the facts that State v. 291 Conn. the court to conclude that the in that not defendant case had waived his Golding review, incorrectly right to Ebron three cases. In construed all Ebron, the court indicated that differed from in its facts those Fabricatore actively and Brewer because defendants the two earlier cases had give appeal. challenged court induced the trial the instruction on See Ebron, supra, (“[T]he present distinguish 292 Conn. 681-82 is case because, although able from Fabricatore Brewer the defendant [in acquiesced ultimately charge gave in the the trial that court to the Ebron] jury, supply, for, language . he did not or advocate the .. otherwise at appeal. differently, issue Put is no there indication that defendant [on] actively give the trial the . . induced court to . instruction that he . . . challenges appeal, Golding." on which renders claim under reviewable [his] [Emphasis Brewer, added.]). however, The defendants in Fabricatore and affirmatively supply, request question language in did not or advocate for the object proposed expressed but failed to instructions and satisfaction given, Brewer, with the as like the defendant Ebron. See State Fabricatore, supra, 360; supra, State v. 281 Conn. 481. The court waiver, cases; Brewer, error, in both thus found induced State v. and we now precedent, our departure sents a from in that case. holding overrule our

B that, if we state’s argument We next consider that Ebron inapplicable, the defendant’s determine because, acquiescing in, claim is unreviewable given, as with, satisfaction the instructions expressing right either waived or forfeited the chal- the defense appeal. specifically contends The state lenge them waiver, error, falls short of induced implied which accepts when instructions be found because such response inquiry to the court’s focused acceptance communicates unambiguously defense, therefore, coun- and, are fair to the instructions knowing intelligent sel’s constitutes a relin- conduct challenge quishment or abandonment that, appeal. them on The state further contends even knowing if not constitute such conduct does waiver, take advantage counsel’s failure to intelligent timely specifically for focus opportunities designed 353; Fabricators, supra, 481; improperly v. and Ebron determined State they distinguishable that were because involved Fabricators Brewer induced error. parentheti- holding respect Madigosky, With in a to Ebron summarized its challenged “[Acquiescence cal as trial to instruction [a] follows: at more, appeal, that on without not constitute induced error would does preclude Ebron, Golding (Emphasis added.) . . . .” review under however, explained supra, Madigosky, In we 292 Conn. 682. in which that complain party appeal a is error that cannot of on because the induced error party encouraged prompted give challenged complaining or the court to the merely instruction, disagreed that state’s we stated we with the assertion Golding review in that case that the defendant was not entitled to because “by essentially acquiescing the trial to he had “induced” court’s conduct Madigosky, objecting it.” the instruction to State v. court’s without analyze did the waiver issue 291 Conn. 35 n.7. We the record or reach impro- Madigosky in because we that the claimed instructional determined Id., Thus, priety 38. rise to the of a constitutional violation. did not level reject Ebron, namely, Madigosky required reasoning us to our in that the right Golding argument the in Ebron his to state’s that defendant waived review, was incorrect. prevention represents on the of instructional error precludes Golding that review. thus forfeiture The state that waiver be found when the defense suggests in acquiesces the instructions the court’s following from parties careful solicitation of comments both opportunity object adequate perceived entirely instructional flaws. We do not with the agree however, legal argument.17 conclude, that, state’s We particular the light case, circumstances this implicitly his claim defendant waived of instructional error. provides

The defendant’s claim this with a court timely opportunity and clarify to reexamine Connecti implied cut law on begin by waiver. We comparing noting waiver and forfeiture and that waiver is the relinquishment “intentional of a abandonment known right,” whereas forfeiture is “the failure to make timely . quota the assertion of a . . .”18 (Internal tion marks Mozell omitted.) Commissioner Correc tion, supra, timely 291 Conn. 71. Failure to make the assertion of right, constitutional is not a bar however, appellate unpreserved review Golding of an claim but, rather, precise why reason is per such review reject missible. we Accordingly, state’s contention the defendant’s claim, waiver, absence of 17 declaring that, espite contending adopting In that it is not “[d] state’s [approach waiver], majority nearly rule”; out a sets identical footnote concurring opinion; apparently referring 1 of Katz’ Justice Justice Katz is entirely agree legal to our statement do not state’s “[w]e argument.” Katz, however, that, referring Justice misunderstands to the argument,” forfeiture, “legal argument state’s we include the on with which agree, argument waiver, generally we do not as well as on with which we agree. Moreover, position agree we extent that with the state’s waiver, agree approach we because it is the correct not for and other reason. 18 note, keeping principles, finding in We with these that of a the valid precludes plain finding waiver a that a instruction constitutes error See, e.g., because a valid waiver no means that there is error to correct. Mozell, Correction, supra, v. Commissioner 291 Conn. 70.

475 timely it was not because not be reviewed should that, if this principle affirm the and instead аsserted expressly did not that the defendant determines court error, alleged induce the waive his claim or implicitly under the of that claim permits law review Connecticut first two Golding provided third prong satisfied. have been prongs have deemed in which Connecticut courts

Cases Golding fall into waived under implicitly instructions are category first and largest In the categories.19 three the defense have found that in which courts cases by words or con- and agreed expressly acknowledged appeal.20See, e.g., challenged to the instruction duct precedent concurrung opinion, has Katz declares that our Justice In her affirmatively only by Golding -willwaive review that “a defendant established record”; (emphasis specific jury agreeing on the instruction discussed involving majority, stating original); waiver fall in that cases and that analysis case law categories, of this court’s relies on a flawed into three beyond approach to waiver outlined in “goes the circumscribed well majority specifically mischar that the . . . .’’Justice Katz claims these cases support its Fabricatore and Brewer order acterizes and misconstrues “wholly system categorizing unpreserved trial errors under which novel Golding review of an will deemed to have waived ... a defendant be merely disagree. note that the numerous claim . . . .” We We instructional Appellate instructional Court have reviewed cases in which this court categories, Golding recognizable which tend to fall into three error under explain more detail in the discussion that follows. we law, group under federal of cases is similar to waiver Waiver in this unpreserved in criminal cases are reviewed which instructional claims under plain (b) (“[a] plain error that affects Fed. R. Crim. P. 52 for error. See brought though rights be even it was substantial considered reviewing generally attention”). trial error The federal scheme for court’s waiver, plain applying distinguishes error review forfeiture and between merely party failed to assert forfeited because when the claim object timely manner, precluding the claim when review of in a Virgin intentionally right. party knowingly Islands waived that See 2005); Rosa, (3d United States Cruz- Cir. see also 399 F.3d Thus, party’s (10th 2009). Rodriguez, failure Cir. “[i]f 570 F.3d oversight exception simply oversight, then such . a matter of to take an . . analysis. purposes plain qualifies for the error as a correctable ‘forfeiture’ matter, consciously objecting however, party If, from as a tactical refrains plain ‘waiver,’ negate even which will action constitutes a true then that 1116, 1122(2d 1995). Yu-Leung, Cir. 51 F.3d United States v. error review.” 476 v. Hampton,

State (defense 444-50 waived claim of improper unanimity instruction on because court highlighted principle unanimity of twice and during conferences defense by assented to instruction stating that instruction was order, in suggesting changes, object no to failing after court changes); State twice asked counsel for v. Foster, supra, 293 Conn. 339-42 waived claim (defense improper instruction on alibi defense expressing satisfaction with instruction, initial alibi asking court to remind that it must if determine defendant was present crime, at scene of and failing object to court’s “According applicable test, therefore, to the sole waiver must have been right being made with a full awareness of both the nature abandoned consequences (Emphasis original; and the of the decision to abandon it.” in quotation omitted.) Bogalusa City Board, internal marks Pace v. School 403 272, (5th Cir.) J., (Jones, concurring part dissenting part), F.3d 298 in Elementary cert. denied Secondary sub nom. Louisiana State Board & Pace, 933, 416, Education v. 546 (2005). U.S. 126 S. Ct. 163 L. Ed. 2d 317 “ easily applied. [Although conceptual This test is not distinction between clear, practice a forfeiture and waiver is the distinction is sometimes Virgin Rosa, supra, elusive.” Islands v. 291. resolving waiver, proceed cautiously In claims of federal courts every “indulge presumption against reasonable waiver of fundamental con rights presume acquiescence stitutional and ... do not in the loss of funda rights.” quotation (Internal omitted.) Zerbst, mental marks Johnson v. 304 458, 464, 1019, (1938); also, U.S. e.g., Bayo 58 S. Ct. 82 L. Ed. 1461 see Napolitano, 495, (7th 2010); Watford, 593 F.3d Cir. United States 891, (6th 2006), denied, F.3d Cir. cert. 550 U.S. 127 S. Ct. (2007). Accordingly, 167 L. Ed. generally agree 2d 1155 federal courts acquiescence enough support is not the conclusion that a defendant knowingly relinquished challenge jury or abandoned the instruction appeal. Rather, only the record must show that defense counsel not challenged stipulated affirmatively aware of the instruction but also agreed to the instruction words or other conduct. See United States v. Cruz-Rodriguez, supra, (classic 570 F.3d 1185 waiver situation occurs when party actually issue, deliberately “a it, idеntified the considered and then affirmatively acted a manner that abandoned claim on the issue” quotation omitted]); also, e.g., DiSantis, marks [internal see United States v. 354, 361(7th 2009)(“[t]he requirement 565F.3d Cir. touchstone of the waiver actually approved is whether and what extent the defendant ha[s] assigned appeal” quotation instructions as error on marks [internal omitted]). initial part of alibi supplemental repeating instruction v. Hotness, requested by counsel); instruction claim that waived supra, (defense 289 Conn. 539-45 by violated fail- of was defendant’s confrontation hearsay to on state- ing object to cross-examination instruction on unavailable ments, requesting curative objection, and court later without gave witness that proposed of curative instruction language to agreeing unequiv- clear and conference, indicating at thus charge unavailable ocal to instruction on agreement limiting Collazo, supra, State potential v. defect); witness to cure by claim App. 115 waived (defense Conn. 758-60 at confer- agreement charge with instruction expressing portion ence which during highlighted challenged court and liability accessory principal on as instruction State by object was given); to after instruction failing Duncan, supra, App. 96 Conn. 557-59 waived (defense on of alteration of claim of instructional error element mark or of firearm presumptive number and identifying jury by permitted inference that to draw to failing object voicing and satisfaction with corrected instruc- tion after discussed cor- presumption language on court v. Wortham, supra, State with counsel); rection App. Conn. 647-50 waived claim (defense regarding provocation duty and instructions on initial aggressor, exceptions to retreat to self-defense agreeing, during conference, statutory that instructions based on proper were evidence language highlighting certain persuade closing argument excep- to during apply). tions did not cases,

In the second Connecticut courts category have found waiver when there was no on-the-record the challenged discussion of instruction but the to acquiesced object to, defense or failed instruc- in, tion in other conduct consis- as trial given, engaged See State acceptance tent instruction. Fabricatore, supra, 481-82 and nn.14 281 Conn. improperly waived claim that trial court (defense duty exception included to retreat self-defense object request to failing original instruction to state’s object to charge, to instruction as failing given, satisfaction several times with expressing general self-defense, object on trial failing instruction at duty state argu- when referred to retreat closing duty ments, and to retreat in his own referring closing v. Hersey, App. argument);21 concurring opinion, charges majority her In Justice Katz with a “gross misreading of the facts and maintains that Fabricatore” there self-defense, on an on-the-record discussion the instruction which was challenged appeal. disagree. We later Fabricatore, question Appellate In the certified was whether “the Court properly improper duty trial that the court’s instruction on the conclude[d] (Emphasis added.) to retreat constituted error . . . .” v. harmless State Fabricatore, 902, 903, 882 (2005). 275 Conn. A.2d 678 We stated outset at the opinion appeal Appellate that our sole issue in this is whether the “[t]he properly rejected Court the defendant’s claim that the trial self- court’s pertained duty defense instruction as it to the retreat to constituted harmful (Emphasis supra, added.) Fabricatore, Thus, error.” v. State 281 Conn. 471. appeal question gener instruction, on not the did relate to the self-defense ally, duty portion instruction, but to the to retreat the self-defense which subject the was not of an on-the-record discussion Fabricatore. jury The facts on which as we relied Fabricatore are follows. After the courtroom, prosecutor requested language left the the that certain added be indicating that, to the self-defense instruction “ifthe found the defendant aggressor, longer initial was the the defense of self-defense would no be pursuant (c). available to the § defendant to 53a-19 When [General Statutes] any objections the court asked defense if he counsel had to that addition charge, objected, stating to the defense counsel twice that the self-defense already given requested, instruction had been as he had and he once that (Emphasis Id., added.) was ‘satisfied’ the self-defense instruction.” 475. Consequently, only part the of the self-defense instruction to which [counsel] responded specific prosecutor’s with a on-the-record comment related to the suggestеd aggressor indicating addition of an initial His instruction. remarks conveyed with the self-defense instruction that he was satis- “satisf[action]” self-defense, generally, fied with the instruction and that he did not want aggressor prosecutor the to add court the initial instruction that the had requested. Thereafter, Golding we concluded that the defendant had waived duty propriety of the review to instruction retreat because “defense only object given counsel not failed to as to the instruction or to state’s the request original duty clearly to the with the to retreat . . . but expressed instruction, subsequently his with that and in satisfaction fact to claim court failed 157-59 waived (defense valid protec- existence of prove that state must instruct existence, by referring to order’s stipulating tive order object when state referred to order at trial and to failing Arluk, App. 75 Conn. State supra, trial); to order at to claim that court failed 192-93 waived (defense valid prove protec- state existence of instruct must trial order several times at referring tive order to object state to order); and to when referred failing Cooper, App. 669-71 waived (defense object making to statements failing claim stipulation ele- throughout regarding trial tantamount Thus, from Connecticut instruction). ment omitted waiver when counsel implicit courts have found defense for what object challenged did the instruction proper. Indeed, argued given instruction as that the [self-defense] duty to in his own defense himself addressed the retreat summation object duty references to retreat in its failed to state’s [and accepted duty Thus, summation rebuttal summation]. [defense] acquiesced theory presented by prosecutor, openly at to retreat trial, thereby waiving challenge appeal.” the instruction on [the] Id., Notably (Emphasis added.) 481. absent from list of this reasons duty to an reference whatsoever on-the-record discussion of to retreat Accordingly, it is misreads facts in instruction itself. Justice Katz who Fabricatore and misunderstands that the basis for our conclusion that jury had defendant in that case waived his instruction claim was not an explicit acceptance duty acknowledgment retreat and the to instruction in an with the court. on-the-record discussion “fullyapparent throughout insisting In that it was the on-the-record discus- regarding challenging the the sions the instruction” that defendant was duty instruction; to inclusion of the retreat footnote 6 of Justice Katz’concur- opinion; recognize challeng- ring was Katz to that defendant Justice fails the prosecutor’s request aggressor ing the initial instruction. as for an Insofar expressed on defense Justice Katz also relies the fact that counsel satisfac- instruction, exception prosecutor’s tion with did not take the reference the duty duty to retreat in his summation and the to retreat addressed summation, represented express acquies- in his own actions either counsel’s acceptance given indicating in as cence the instruction or trial conduct clearly Consequently, that, although instruction. the record shows defense engage in with the counsel did not an on-the-record discussion court on duty retreat, challenge waived the on he defendant’s instruction appeal. 480

clearly appeared, conduct, on the basis of counsel’s trial This is in to have been tactical reasons. accord party may pursue “a course stating case law that one appeal at tactical and later of action trial for reasons on path rejected open that the he should now be argue . . Golding give appellant him. . is not intended to apple.” bite at the internal (Citation omitted; second Browne, State Conn. quotation omitted.) marks 84 Conn. App. 351, n.22, 13, denied, 854 A.2d cert. A.2d 931, 859 930 (2004). category

In the third Connecticut cases, courts implicitly have deemed a claim of instructional error to, when take exception waived the defense failed to acquiesced jury in, following instructions one opportunities See, or more to review them. e.g., Brewer, Conn. claim supra, 283 waived (defense portion regarding unanimity of lesser offense instruc- tion failing exception given to take to instruction as expressing general satisfaction with instruction after court asked if offense counsel lesser instruction was instruction that counsel had In these requested).22 concurring opinion, In her Justice Katz her reasserts claim that majority opinion “misapprehension because, suffers from of our case law” Brewer, defense counsel and the trial court on discussed the record jury “specific explicitly challenged,” instruction defense later counsel acquiesced given. disagree. in the as We instruction Brewer, appeal that, In we stated claim defendant’s sole “pursuant Sawyer, (1993), to State v. 630 A.2d 1064 improperly unanimously trial it court instructed the that must [find] guilty] charge properly the defendant of the murder before it could [not manslaughter degree a lesser consider included of first reckless (acquittal Brewer, instruction).” first State v. 283 Conn. 353. Defense requested instruction, in Brewer had the lesser included offense “ ” gave objection; which the court as an ‘exercise in over the caution’ state’s id., 360; given and had conceded the instructions as were correct they complied requirement unanimity because the law with the outlined Sawyer-, id.; unanimity requirement but that the claimed violated the rights process Id., defendant’s constitutional to a trial and due law. subsequently 355. We in Brewer the concluded that defendant had waived expressed “specifically his because claim defense counsel his satisfaction queried Id., disagree with that instruction when the trial court.” 361. We that the court was no evidence in which there cases, the challenged discussion of an on-the-record held object for failed to that defense counsel instruction or deter- court nonetheless reasons, the obvious tactical with a provided had been that, because counsel mined identify flaws to review and opportunity meaningful Katz, however, language we used in Brewer can that the that with Justice unanimity requirement the was discussed on mean that the be construed to unequivocally reading demonstrates a fair of the record record because id., unanimity requirement 357 n.7. After never was mentioned. See the jury instructions, any exceptions sides asking both had to the if counsel time, prosecutor replied negative. Upon asking a second in the Id. responded was entitled to a did believe that the defense that the state expressed then ambiva- instruction. Id. The court lesser included offense very instruction, stating giving often difficult such an “[i]t’s lence about . . . I’m not figure included offense. out whether an offense is lesser offense, charging totally . . but on it . that it’s a lesser included convinced caution, go I’ve decided to . . . as an exercise in makes more sense. [S]o though along request I’m not sure that on this even with the of the defense they requested appropriate give and . . . included that it’s lesser right only you requested . . . this was the . . one that . this was the omitted; concerned, (Citation you internal one as far as were correct?” replied: correct, quotation omitted.) “That is Id. Defense counsel marks quotation omitted.) (Internal Id. Your Honor.” marks First, colloquy, can be drawn. this several conclusions On the basis of give instruction whether the court should the discussion concerned manslaughter, not whether the included offense of reckless on the lesser constitutionally incorrectly law or was defective. Sec- instruction stated the ond, giving the instruction because defense court indicated that it was requested if the lesser included had it and then asked counsel counsel (Internal .” “the one . . . the instruction referred was offense to which Third, responded omitted.) was. quotation that it Id. defense marks unanimity portion of the referred to the Neither counsel nor the court Id. prior Although colloquy defense counsel’s statement this instruction. suggest exceptions that counsel instructions that he had no waived a claim of instructional error instructions and thus satisfied with the unanimity requirement, Katz’ concerning there is no basis for Justice specifically unanimity portion the instruction was conclusion that only record, especially contribution to the when counsel’s discussed on the correct, Honor,” perfunctory, which was is Your discussion was his “[t]hat question response simple of whether it had instructed to the court’s Accordingly, proper Katz’assertion that offense. Justice lesser included unanimity explicit, instruction on-the-record discussion there was an unsupportable. instructions, expressed and had satisfaction with proposed the instructions or given, it could infer coun sel’s of the knowledge alleged impropriety and volun tary relinquishment challenge the appeal. instructions on This contrasts with the federal approach, in which courts generally do not infer that a claim has implicitly been waived unless defense counsel approved has the challenged instruction at trial follow ing on-the-record discussion with the court. See foot note 20 of this opinion; see also United States Polouizzi, 564 F.3d 142, (2d Cir. 2009) (finding waiver because defense counsel indicated challenged instruction was satisfactory); United States v. Sanders, 520 F.3d 699, 702 (7th Cir. 2008) (finding waiver because defense agreed to, counsel argued of, favor chal lenged instruction). present

In the case, which falls within this third cate- gory, the state argues that defense acquies- counsel’s cence in the instructions, as evidenced counsel’s affirmative responses to the trial inquiries court’s at thereafter, conference and was sufficient to convey that the instructions fair to the defense “[were] . .. and should be deemed to constitute a knowing and intelligent waiver.” The state adds that reviewing a new appeal claim of error on runs afoul of counsel's implicitly expressed tactical determination that the instruction was suitable, that, if counsel’s choice is later questioned, proper remedy is to evaluate the matter in a habeas proceeding alleging ineffective assistance of counsel in which there will fully be a developed record. The defendant, rely continuing to Ebron, responds that participation defense counsel’s the charge conference does not foreclose Golding review.

We that, conclude when the provides trial court coun- copy sel with a of the proposed jury instructions, allows com review, solicits their for opportunity meaningful or modifications changes regarding from counsel ments pro affirmatively accepts the instructions to have deemed be the defendant posed given, have and to flaws therein any potential knowledge challenge to right implicitly the constitutional waived Such a determination appeal. direct instructions on on a close exami must be based court reviewing circum facts and particular and the nation of the record Hampton, State v. each case.23 See stances of record); waived on basis 450 (claim 293 Conn. waived Fabricatore, supra, 281 Conn. (claim 481-82

v. Perez, v. also United States see case); under facts evidence 1997) (examining Cir. 840, (9th 116 F.3d 845 but cf. waived); if determine claim in record to Zubia-Torres, 550 F.3d 1202, 1207(10th United States v. that counsel any evidence” “devoid 2008) (record Cir. 1201, 129 S. denied, 556 U.S. cert. claim), abandoned v. United States 1120 (2009); L. Ed. 2d 2034, Ct. 173 evidence Hamilton, 734, 736 2007) (no Cir. (7th 499 F.3d 552 U.S. denied, cert. waived), that claim was in record L. Ed. 2d 782 951, (2008). S. Ct. 169 1129, 128 implied waiver, alleged as established that It is well that the defendant case, arises from an in this inference ques- voluntarily relinquished knowingly Northeast, Bridge- LLC C. R. Klewin See, e.g., tion. port, 282 Conn. 54, 87, (2007) (“Waiver 919 A.2d 1002 presumed waiver to be describe would not allow The standard that we acquiescence in, or counsel’s mere a silent record or from defense from record, by definition, object to, A silent instructions. failure satisfy basis there would be no factual the standard because would not waiver, acquiescence mere or failure could infer a from which the court finding provide object, more, for a an insufficient basis without would from which the court could there would be no evidence of waiver because opportunity given meaningful had been determine whether counsel instructions, express review, satisfaction with comment on and had, fact, expressed before or after such satisfaction whether counsel given. were the instructions does not have . . express may to be . but consist of may acts or conduct implied. from which waiver be words, ... In other waiver be inferred from the circumstances if it is reasonable to do so.” [Internal quotation marks omitted.]); Gore, see also State v. 770, 781-82,

Conn. 955 A.2d 1 (2008) (evidence insuffi- permit cient to inference ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​​‌‌​​​‌‌‌‌​‌​‌​‌‌​‌​‌‌‌​​‌​​‍defendant waived right trial); Flanagan, Martin 259 Conn. 487, 499- 500, 789 A.2d 979 (2002) (evidence permit insufficient to inference that defendant waived privilege against self- It incrimination). also is well established such inference must be based on a course of conduct. See, e.g., State v. Woods, A.3d 236 (2010) (inquiry dependent on conduct of defendant and other factual considerations); see also Johnson v. Zerbst, 458, 464, 304 U.S. 58 S. Ct. 82 L. Ed. 1461 (1938) (question of waiver must be determined on “the particular facts and circumstances surrounding [the] case, including the background, experience, and con- [person duct of the waiving the right]”). we Although agree justices the concurring that evidence of an on-the-record discussion of the challenged instruction supports an waiver, inference of we believe that a simi- lar inference is supported by evidence that counsel had a meaningful opportunity to review and comment on proposed instruction and did, fact, convey his acceptance affirmative thereof. emphasize

We that this is not a less stringent standard than standard, or standards, by advocated the con- justices.24 curring it Although might prac- be the better joined Having opinions, each other’s it is difficult to determine whether justices concurring agree single standard, on a because the standards opinions aрpear quite different, articulated in their individual to be if not incompatible. example, nontactical, implied For Justice Katz states that only specific (1) “waiver challenged results when: instruction that is later brought counsel; (2) to the attention of defense that instruction is dis record; (3) explicitly cussed on the and defense counsel nonetheless and actually approves instruction,” whereas Justice Palmer states that clearly waiver “cannot be ... in the absence of a record demonstra- [found] instructions proposed to read the tice for the trial court whether each instruction by line and ask after line meaningful see a we fail to agrees, defense counsel if he or repeatedly asking between distinction any proposed with the she has issues reads after the court comments from counsel requesting may be cases fact, In there charge. each section of the waiver on to infer practice it is not the better which example, For discussion. the basis of an on-the-record minute instructional to a last agree defense counsel after the further reflection only realize, upon change change fully he or she did not understand trial, that when the flaw incorrect, was and that the instruction object identified in time for counsel have been might opportunity change to review the had there been an before the in less circumstances writing pressing that waiver jury was the notion charged. Accordingly, an on-the-record only be found when there is should because it is discussion of the instruction challenged way of, to ensure that counsel was aware the best understood, problematical.25 the instruction is thus expressly impliedly, knowledge charge, ting, at counsel’s that the either constitutionally counsel, potentially, in the exercise least infirm and that professional forgo [objection] judgment, decided to con- of his her] [or infirmity.” Thus, cerning possible articulated Justice the standard Katz, Palmer, require Justice would not evidence unlike that articulated despite constitutionally agreed to a flawed instruction that counsel knowledge of the flaw. 25 not be We also believe that Justice Palmer’s view that waiver should clearly demonstrating, expressly “in the absence of a record either found impliedly, potentially, knowledge charge, that the at least was or counsel’s constitutionally counsel, infirm in the exercise of his and [or her] possible professional judgment, forgo concerning that decided to claim internally infirmity”; original); (emphasis in inconsistent because there way may clearly knowledge appears that counsel demonstrate such to be no except by expressly informing Accordingly, the court. Justice Palmer’s stan effectively concept implied express waiver in favor of dard eviscerates the waiver, “implied.” despite the word his use of Moreover, implied understanding Palmer’s waiver is not how Justice implied past. reviewing in courts have construed waiver Connecticut’s Hampton, supra, See, e.g., (defense v. 449-50 waived claim State 293 Conn. unanimity unanimity improper highlighted instruction on because

C opinion, In the standard set forth this we adopting rely widely presumption also on (1) recognized by complete copy during charge conferences, given twice court counsel was review, by of revised instructions to and counsel assented to instruction “ ” order,’ failing stating suggesting changes, that instructions were ‘in no object changes, after court twice asked counsel for additions or deletions Foster, instructions); supra, (defense v. State 293 Conn. 340-42 waived by improper expressing claim of instruction on alibi defense satisfaction with instruction, asking initial alibi court to remind that it must determine present object failing if defendant was at crime scene and to court’s supplemental repeating part instruction of initial alibi instruction that coun Collazo, requested); App. (defense v. sel had by expressing agreement waived claim with at instruction conference during highlighted challenged portion liability which court of instruction on accessory principal obj stating as or it that had no ection after instruc given). typically tion was It is also not how federal courts have construed implied past. previously noted; waiver in the As we see footnote 20 of this opinion; proceed theory challenged most federal courts on the that the instruction must be discussed on record and that defense counsel must stipulated affirmatively agreed have to the instruction words or other See, e.g., Polouizzi, supra, (finding conduct. United v. States 564 F.3d 153 challenged waiver because defense counsel indicated to trial сourt that satisfactory); Sanders, (finding instruction was United States v. 520F.3d 702 agreed to, argued of, challenged waiver because defense counsel in favor instruction); DiSantis, 354, (7th see also United States v. 565 F.3d Cir. 2009) (“[t]he requirement touchstone of the waiver is whether and to what actually approved assigned extent the defendant of instructions ha[s] appeal” quotation omitted]). Indeed, as error on marks in her [internal concurring opinion, Justice Katz cites these and several other cases support theory. See, e.g., Conner, of this United States 583 F.3d (7th 2009) (finding expressly 1026-27 Cir. waiver because defense counsel agreed challenged instruction); stated that she United States v. Hamil ton, supra, (finding 499F.3d 736 no waiver because court did not ask defense agreed specific if counsel he to instructions or ask counsel about instruction challenged very appeal). In few federal cases which the court found no waiver because the record contained no evidence of trial counsel’s knowledge challenged flawed, that the instruction was the facts are distin guishable. See, e.g., Virgin Rosa, (3d Islands v. F.3d 290-91 Cir. 2005) (finding despite multiple, no waiver on-the-record discussions of chal lenged clearly instruction with trial counsel because record showed that object, agreement counsel’s “failure to and moreover his on at least three jury instructions, occasions to the erroneous stemmed from circum or, it, stance that he was unaware of the correct rule of law if aware of did Perez, it”); not realize that the intent instruction misstated United States of capable acting of on behalf competent counsel is and 840, 845 though (9th 1997)(finding trial counsel no waiver even 116F.3d Cir. court, by submitting because record error flawed instruction invited recently parties’ attorneys were aware of indicated that neither court nor jury, requiring and record new element to be submitted to decided case “affirmatively relinquish a known evidence that counsel acted to thus lacked of, accepted, right”). notice and It is the idea that counsel had sufficient expressed actually given, that counsel knew and the instruction to be not constitutionally infirm, always was has anawarenessthatthe instruction implied and that lies at the decisions of this court on waiver informed the issue, with different courts heart of most federal case law on this type required jurisdictions disagreeing of evidence as to the amount and sufficiently its was aware of the instruction and conclude that counsel words, implied possible finding a waiver. In other ramifications to make “legal that, if had sufficient notice waiver rests on the fiction” content, inference, jury an instructions and was aware of their Dictionary p. (defining “assumption” fact; (9th 2009) Law Ed. Black’s any potential “legal fiction”); can be made that counsel also was aware of may and, have contained with full constitutional defect that the instructions defect, opted objecting strategic understanding of that to refrain from for actually aware of a consti reasons. Evidence in the record that counsel object jury intentionally chose not to tutional defect instructions by by any has, knowledge, required to our never been this court or federal implicit claim. When court in order to find waiver of a instruction rejecting knowledge counsel in federal courts have relied on actual waiver, appears only finding of it to have been in circumstances in which clearly the record showed that counsel believed that the instructions were they Virgin Rosa, flawed. See Islands v. correct and was unaware that were supra, 287, 290-91; Perez, United States 845. Indeed, be, presump- if law were Palmer would like it to as Justice competent past tion of counsel on which this court has relied in cases survive, involving implied waiver would not because counsel could constitutionally on the record that a instruction was defective concede objection, exposing forgo strategy, of trial without even for reasons filing a claim of ineffective himself or herself to the almost certain of habeas following assistance a conviction. take issue with Justice Palmer’s conclusion that “counsel who We also object reviewing treat his failure to as a does not wish to have a court simply by Golding purposes informing waiver for avoid such treatment challenge to the the trial court that he has not raised a constitutional claim, because he has elected because he is unaware such and not claim”; “express (emphasis original); . . . and that an dis- to waive the trump any implied finding of waiver this of waiver “would avow[al]” Appellate logically Court . . . .” Such a conclusion is flawed court or the because an admission counsel that he is unaware of constitutional competent counsel, only things, namely, can mean one of two claim the defendant in concerning management, matters trial including waiver of the defendant’s to right challenge jury a instruction, pro- our rules of which (2) practice, participation by vide for substantial counsel in formulat- jury and ing reviewing instructions, (3) principles basic of fundamental responsibility fairness that favor placing may recognizes properly presumed, which Justice Palmer be has intention- ally challenge appeal waived the to a raise constitutional on or that recognize counsel is ineffective because he fails to the existence of a constitu- challenge. tional To determine which is the case is best examined in a proceeding, fully developed habeas which record can be and trial may testify acting Furthermore, counsel about his reasons for as he did. legal support preservation Justice Palmer cites no a for blanket trial jury merely challenges counsel of all constitutional to instructions on the basis of counsel’s in-court statement that she he or is “unaware” of a constitu- Finally, ploy open up box,” tional violation. such a could a “Pandora’s flooding improper jury alleging Connecticut courts with cases instructions every mockery making attempt conceivable issue and a of the trial court’s query input jury and solicit counsel’s on the instructions. It also would directly conflict with the mandate in rule 1.1 of the Rules of Professional requires adequate preparation by representing Conduct that counsel client, presumably familiarity jury which would include sufficient with the identify constitutionally instructions to instructions that are flawed. See lawyer provide (“A competent repre- Rules of Professional 1.1 Conduct shall Competent representation requires legal knowledge, sentation ato client. skill, preparation reasonably thoroughness necessary representa- for the tion.”). Accordingly, unequivocally reject legally unsupportable we as may expressly by informing assertion that counsel disavow waiver the trial any jury court that he is “unaware” of constitutional infirmities instructions. finally disagree We with Justice Palmer’s view that far there is less reason appellate principle to bar review of instruction claims under the implied unpreserved prosecutorial impropriety during waiver than claims of closing argument, through argument where defense counsel sits objection. strategy aside, raises no Trial which be reason in either objecting, opportunity circumstance refrain from counsel has much more identify prosecutorial impropriety instructional error than because coun- meaningful opportunity sel has a to review the instructions and to corrections, suggest whereas, prosecutorial impro- revisions or in the case of priety, spontaneous, on-the-spot regarding counsel must make decisions object during closing argument, easily accomplished when to a task not argument passionate, pace very rapid when the its is and counsel is attempting regarding points require to make mental or written notes response. disagree majori- Wethus with Justice Palmer’s conclusion that the ty's squared approach decision “cannot be with the that this court has taken respect unpreserved prosecutorial impropriety during claims of closing argument”; concurring opinion; 11 of footnote Justice Palmer’s acknowledge because it fails to the substantial differences between the two scenarios. to take all parties’ with the trial court and ensure that at the time of trial to necessary measures availability correct, (4) are the instructions whether counsel’s failure review to determine habeas changes, or to exception, suggest to take assistance and constituted ineffective jury instructions We discuss a new trial. prejudice, requiring caused thus in turn.26 these considerations each of 1 consideration, repeatedly we respect With to the first competent counsel presumption on the have relied waiver of a whether a defendant’s detemúning when been statutory privilege has right constitutional Reid, State v. 277 See, e.g., and knowing intelligent. that (concluding 764, 781-84, (2006) Conn. 894 A.2d 963 voluntary plea, knowing guilty entered and defendant waiver of several constitu operated implicit which as self-incrimina including privilege against tional rights, presumption that, “in most cases tion, part in based on routinely explain the nature defense counsel notice in sufficient detail to the accused give offense Lopez, State v. what he is asked to being admit”); 850 A.2d 143 799, 801-802, (2004) (rejecting 269 Conn. any bearing argues of these considerations has Justice Palmer that none particular knowingly intelligently in case and waived on whether counsel this constitutionally adequate instruction, and, in to a the defendant’s any event, unpersuasive policy are and driven. We such considerations disagree. Although finding it is that a of valid waiver we believe self-evident any given case must be based on an examination of the facts and circum Hampton, record; supra, see State v. stances as revealed in the Fabricatore, (claim record); State waived on basis of facts case); apparently (claim waived under facts of Justice Palmer Conn. 481-82 not, that we discuss do in and of misunderstands that the considerations justifica themselves, merely applicable serve as constitute the standard but Finally, we note that these considerations are not tion for that standard. principles firmly policy legal that are embedded in driven but are based practice. jurisdictions, rules of law of this state and other our the case proper Consequently, critique understand Justice Palmer’s is not based on opinion. ing articulated in this of the standard ordinary presump- Appellate Court’s conclusion tion, pleas, in cases of that defense counsel has guilty charged of elements of crimes must informed defendant supported positively be evidence in record that indi- opportunity plea had to discuss cates that defendant attorney instead, concluding, with his agreement Appellate Court misstated law in defendant’s favor express “even without an statement that, appro- of the elements of the crimes it is charged, court priate presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail give being accused notice of what he is Thus, asked to admit. . . . unless a record contains positive attorney some that the defendant’s suggestion had not informed the defendant of the elements of the crimes to which he was pleading guilty, normal presumption applies.” omitted; emphasis in [Citations omitted.]); quotation internal marks original; Ross, 213, 294-95, 849 A.2d 648 (2004) (con- implicitly statutory psy- that defendant waived cluding chiatrist-patient in privilege, part because court “must experienced assume that the defendant’s and highly competent counsel knew that the results of the . . . psychiatric examination could be used in rebuttal [if impaired he raised mental as a mitigating status claim] potential scope and informed the defendant of the the . . . examination . . . and that the defendant’s impairment decision to claim mental was made intelli- consequences” and with full gently knowledge omitted; quotation internal marks omitted]); [citation Steiger, State 218 Conn. 349, 369-70, 590 A.2d 408 (1991) (concluding implicitly that defendant waived sixth amendment to consult with counsel as to right scope psychiatric nature and and examination presence psychiatric examination, part of counsel at in “the defendant filed because his notice of defense of approximately mental disease or defect seven months we psychiatric examination, before the therefore] [and safely experienced can assume that the defendant’s competent counsel knew that the results of the highly psychiatric state’s examination could be used rebut potential tal and informed the defendant of the nature scope examination”). of the state’s We have like concluded, respect wise with to a claim that the defen dant’s of confrontation under the sixth and fourteenth amendments to the United States constitu per tion had been the trial had violated because court hearsay mitted the state to introduce certain statements trial, the defendant’s that the claim had been during waived at trial because agreed defense counsel had a instruction to the statements. See limiting pertaining Holness, State 289 Conn. 542-43. As we Hotness, “when explained in . . . counsel has waived . . . potential claim the confrontation clause [under of the sixth the exercise of his or her amendment] professional . . . judgment presume [it be] [d] defense counsel was familiar with . . . [the law] competently acted that the lim determining [court’s] instruction was iting adequate safeguard the defen rights. dant’s To conclude otherwise [constitutional] require would the trial court to canvass defense counsel respect to counsel's of the relevant understanding principles constitutional before accepting counsel's . . agreement proceed. on how to . is nothing [T]here in our criminal law that supports requirement.” such a 544. Our nation’s Id., highest court has recognized presumption similar apart contexts from ineffective counsel, assistance of that a defendant’s funda stating process mental due to be heard a court of “right [in be, many cases, would of little avail if it did law] comprehend right [competent] to be heard layman counsel. Even the and educated intelligent has small and sometimes no skill in the science of law. If crime, incapable, he is charged generally, [a] is good for himself whether the indictment determining or bad. He is unfamiliar with the rules of evidence. Left put without the aid of counsel he be on trial without upon incompetent evi proper charge, and convicted irrelevant to the issue otherwise dence, or evidence or inadmissible. He lacks both the skill and knowledge adequately prepare defense, his even he though [has] perfect requires one. He hand of counsel guiding every step at in the him. Without proceedings against it, he be not he faces the of convic though guilty, danger tion not know how to establish his because he does innocence. If that be true of men of how intelligence, illiterate, much more true is it of the or ignorant any case, criminal, those of feeble intellect. If in civil or arbitrarily a state federal court were to refuse to party by employed by hear a counsel, appearing reasonably may him, for it not be doubted that such a refusal would be a denial of a hearing, and, therefore, process of due in the constitutional sense.” Powell Alabama, 45, 68-69, 287 U.S. 53 S. Ct. 77 L. 55, Ed. 58 Kentucky, see also Buchanan v. 483 U.S. (1932); 402, 424, 107 S. Ct. 97 L. Ed. 2d 336 (1987) (concluding petitioner’s constitutional to counsel had not petitioner’s been violated because him “[the] requested psychiatric self evaluation . . . [and, thus, it be assumed —and there are no allegations could] contrary defense counsel consulted with —that petitioner about the nature of this examination”); [the] v. Morgan, 637, 647, Henderson 426 U.S. 96 S. Ct.

49 L. Ed. 2d 108 (1976) (“Normally record contains explanation either an the trial judge, representation by or at least a defense counsel that the nature of the has explained offense been to the accused. Moreover, express representa even without such an tion, may appropriate presume it be that in most routinely explain cases defense counsel the nature of the offense sufficient detail to the accused notice give of what he is asked to being admit.”). counsel articulated competent presumption

The and in the case Supreme Court by the United States with rule 1.1 of the also is consistent law of this state applicable which is Conduct, Rules of Professional and directs that attorneys in Connecticut practicing all representation to lawyer provide competent shall “[a] requires legal Competent representation a client. reason- preparation skill, thoroughness knowledge, ably necessary representation.” for the special competent counsel has presumption

The claim of a instruction the context meaning provisions contain seven practice because our rules of attorneys participate formulating that encourage on how by providing guidance instructions detailed 42-16 informs counsel that proceed. Practice Book § request a written to charge it is advisable to file appellate will no consideration provides that there be request is filed or instructional error unless such immediately follow- exception is taken charge 42-17 and 42-18further delivery. its Practice Book ing §§ requests by explaining encourage filing charge they may be they filed, when must be how and when proper their form and content. Practice amended, and if provides court, requested 42-19 that the Book § counsel, shall hold a conference that is on the record, counsel record, informing or summarized on proposed close of evidence of the substance of the at the Practice Book 42-24 discusses modifica- § instructions. or purposes

tion of the instructions for of correction upon the exception clarification after an is taken or provides Practice Book 42-25 § court’s own motion. necessary “to avoid additional instructions be on the instruc- emphasis” correcting clarifying undue shall be given tions and that such additional instructions procedures described in Practice Book pursuant to the exception to the to take allowing 42-16 § Finally, instructions that were Practice given. Book jury requests 42-27 addresses situations in which the § additional instructions after the start of deliberations provides and that counsel shall be notiсe and an given opportunity to make suggestions regarding the addi- tional instructions.

On the basis of these we rules, conclude, first, that expect trial courts significant participation counsel in formulating instructions because there would be no reason for our provide rules to such guidance if participation little or no anticipated. We also conclude that competent counsel, being cognizant of our rules, is aware that there are multiple opportunities to request specific instructions, exceptions or objections to the proposed may instructions or given be taken or times, raised at various and that a charge conference requested be to consider the instruc- tions and changes modifications thereto that necessary counsel deems they to ensure that are cor- rect. Accordingly, reviewing courts Connecticut have good reason to conclude that counsel and knowingly intentionally waived the right challenge jury instruc- tion when the trial court provided parties has opportunity meaningful to review and discuss the instructions, 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.27 concurring opinion, that, contrary In her Justice Katz asserts

presumption competent ethical, majority’s that counsel is both “the approach appellate judges presume, nearly records, allows from silent object that trial counsel’s strategic failure to to an instruction derived from negligence.” agree. contrivance rather than mere We do not It is Justice presumption competent Katz who contravenes the that counsel is because deny bring she would waiver in all cases in which counsel failed to specific attention, implying instructional error to the trial court’s thus any other valid instructional error was overlooked or not identified because incompetent contrast, majority counsel was either or unethical. In deci specifically rejects presumption acquiescence sion that all at trial to incompetence instructions must be due to counsel’s or unethical only strategic conduct. Not concerning do we not believe that all decisions decision also is in our approach set forth The fairness. of fundamental principles with basic accord encouraged will be hand, trial courts On the one on-the-record participatory meaningful hold pro- copies written counsel conferences,28 give with sufficient provide instructions posed only such actions review them because time to that duty its to ensure out carrying assist the court also have the just, fair and but are the instructions and possible avoid a retrial salutary helping effect of proceeding that such a judicial resources the waste presumption competent unethical, but we build on the instructions are by presuming the instructional would have identified that counsel counsel opportunity proper meaningful given to review the instructions if and error object express by upon disallowing failure to or satis- review counsel’s proposed given. Accordingly, Justice Katz faction with the instructions approach misunderstanding of the articulated a fundamental demonstrates opinion. majority in the reasoning again in her our when she declares Justice Katz misconstrues majority depends opinion concurring devised a rule “that that the has [charge] the defendant has conference to determine whether the use of the singled challenge and has out a defective instruction” waived his trial. error that occur at to bear the costs of instructional the defendant provides charge Although an conference we have stated that on-the-record specific regard important opportunity concerns for the defendant to raise error, will not be ing that a defendant we have also stated instructional provided has waived such a claim unless the court deemed to have opportunity meaningful copy proposed and a with a of the instructions only given comment, case which can be determined for review meaningful significance of a of the record. The a close examination Holding opportunity cannot be underestimated. for review and comment conference, providing charge counsel with an and even an on-the-record necessarily instructions, copy in all will not be sufficient advance of the Golding if counsel has not waiver of review defense cases to constitute circumstаnces, adequate time, under the to examine afforded been identify any potential Thus, Katz’assertion flaws. Justice instructions and to important determining factor in is the most that the conference majority has been waived and that the a claim of instructional error whether consequences erroneous singled of an out the defendant to bear has court, obligations of the trial is without foundation because instruction more, significant herein, equally, those of the if not than are as described prosecutor and the defense. entail. See State Griggs, might 116, 124, 288 Conn. 951 A.2d 531 test of a court’s (2008) (“[t]he charge fairly . . . presents whether it the case way injustice such a party is not done to either under the established rules of law” quotation [internal marks omitted]). Correspondingly, counsel will be to take encouraged advantage opportunities pro- vided the rules of practice, is, to submit a request to seek an charge, on-the-record charge conference objections to raise necessary whenever because such protect parties’ actions will interests, create an adequate record for review and avoid the waiver of a legitimate claim when the trial court has given counsel sufficient opportunity to participate in the instruction process. See State v. Cobb, 322, 329, 507 A.2d 457 (1986) (“If defense approve counsel did not of . . . then charge, he should have alerted the court to previous his remarks and suggested whatever curative he language appropriate. deemed most ... excep- An point tion at . this . . would important have served the function of the trial alerting court to what defense coun- sel believed was erroneous while there was time to correct it without a retrial.” ordering omit- [Citation ted.]). judicial system Accordingly, is better served perspectives from all when waiver is inferred from counsel’s affirmative acceptance instructions following a meaningful opportunity to review them.

4 A final consideration is availability of habeas review if a defendant wishes to a bring claim of ineffec- tive assistance of counsel to contest the reviewing court’s conclusion that instruction claim was waived. As we have in stated other a cases, habeas proceeding provides superior forum for the review of a claim of ineffective provides assistance because it the opportunity an evidentiary for hearing in which attorney whose may testify conduct is challenged instruction not contest the the reasons he did regarding 517, 541, Leecan, See State at trial. 2922, Ct. 1184, 476 U.S. 106 S. denied, cert. 480, A.2d thus proceeding A habeas 2d 550 (1986). 91 L. Ed. fail whether counsel’s court to determine enables the in participate exception or otherwise ure to take incompe to mere instructions was due formulating the would not be trial which strategy, or to counsel’s tence possibil there is no appeal in which possible a direct is thus evidentiary party An ity hearing. aggrieved of an event that the court deems recourse not without appeal.29 waived on impropriety a claim of instructional Katz claims in her concurrence the extent Justice To importance majority acknowledge “fails to that the ability to errors to our unpreserved the review of Justice Katz clarify law,” disagree. we declare and many valid claims of instruc- apparently presumes that of our decision light will not be reviewed in tional error but they waived, will be deemed in this case because The more purely speculative. is presumption such a attorneys exception will take likely effect is that they perceived often if are as jury instructions more their clients’ claims incorrect, properly preserving thus the fact that Moreover, ignores review. Justice Katz for Correction, Palmer, citing Ledbetter v. Commissioner Justice 451, 460-62, (2005), denied sub nom. Ledbetter v. Conn. 880 A.2d 160 cert. Lantz, (2006), 126 S. Ct. 164 L. Ed. 2d 77 concludes 546 U.S. remedy predicated assistance of that a habeas on a claim of ineffective in which counsel is deemed to have counsel would not be available cases theory legal a constitutional claim for failure to raise a novel waived argument We find trial because there would be no basis for such claim. at unpersuasive. Ledbetter, that, logic In we stated conclude “[t]o this preserve previously obligated recognize and to undecided claims, viability purely speculative, of which is would be constitutional lawyers clairvoyant] Id., require . . . .” 462. For to criminal defense to [be Ledbetter, implied expressed waiver of a similar to those reasons speculative previously founded constitutional claim cannot be undecided Moreover, identify, exception, or carve out an on a silent record. we do merely respond claims, contends, to his as Justice Palmer but for such Golding they argument under the not be entitled to review would majority opinion. in the standard set forth already

reviewing routinely courts numerous, consider properly preserved constitutional claims of instruc- impropriety tional on direct appeal. Finally, claims of instructional error deemed appeal waived on direct 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 assis- tance of counsel. See, e.g., Crespo v. Commissioner of Correction, 292 804, 812, Conn. 975 A.2d 42 (2009). Consequently, simply support there is no for the view that our decision will have a detrimental effect on the ability of Connecticut courts to articulate clarify the law.

D Turning to the facts of present case, we conclude repeated defense counsel’s statements indicating his acceptance affirmative proposed jury instruc- tions after being given a meaningful opportunity to review them an implicit constituted waiver of the defen- dant’s claim of instructional error. Following the state’s request charge, to the court noted on the record that it had asked defense counsel in chambers previous day if he request intended to file a charge, replied had in the The negative. court then asked coun- sel if he still did not intend to file a request to charge, and counsel affirmed that he had no such intent. The court thus reminded defense counsel on two different occasions of his right to file a request to charge, and counsel declined each time to file request.30 such a request Justice charge Katz states that the failure to file a has no bearing Golding inquiry filing request properly on a because such a would preserve appellate Although the claim of error for agree direct review. we filing request charge preserve properly that the effect of is to a claim error, note, respect present case, instructional we to the that defense counsel, declining request response twice to file a invitation, special court’s direct indicated that regarding he had no concerns the instructions on intent that he wished to discuss with the court. confer- charge also two additional

The court held days after instructions. Two ences to discuss the that he no intention counsel reaffirmed had defense if the court counsel request charge, a to asked filing to Counsel was he wanted discuss. anything there of the portions that he wanted to discuss those replied to to assault counts request relating state’s charge any did issues one other minor matter but not raise kidnap- to pertaining the intent instruction regarding coun- and unlawful When the court asked ping restraint. discuss, was else” he to “[a]nything sel if there wanted I so.”31 replied, Your Honor. don’t think “[n]o, counsel days counsel that later, Several after the court advised would prepared give it had the final instructions and attorney a counsel copy review, written to defense each “downstairs,” refer- copy apparently that his was stated he have office, to the clerk’s but that did not ring record major revisions. The court thus concluded on the complete the instructions were and that there for to the instruc- no need another conference discuss response. Finally, no after tions, to which counsel made both prosecutor the instructions were given, they exceptions had no defense stated those instructions. of the instructions acceptance

Defense counsel’s sharp prosecutor, was in contrast to the conduct repeated attempts made to obtain instruc- who certain request language by filing charge, asking tional questions charge the first regard- several at conference assault, copy ing reviewing instructions on parts jury charge at Defense counsel’s discussion of unrelated of the significant an on-the-record conference was because it demonstrated identify sufficiently those that counsel was familiar with instructions to disagreed. Thus, portions of the which he to the extent instructions with selectively portions of but not that he discussed certain the instructions others, may presume knowledge portions did one that he had that he proper, waiving and found thus the defendant’s not discuss them be challenge appeal. them on direct the completed instructions the night before the second charge conference so that prepared he would be to any discuss remaining Thus, issues. it is clear that defense counsel had several meaningful opportunities to participate jury in fashioning the instructions and to object review any and to language contained therein because his counterpart, prosecutor, repeatedly made his own views known to the court.32We therefore conclude that the implicitly defendant waived his right to challenge the instructions on intent.

The judgment affirmed.

In opinion this ROGERS, J.,C. and VERTEFEUILLE and McLACHLAN,Js., concurred.

KATZ, J., with whom NORCOTT PALMER, Js., and join, concurring. presented The issue in this case— under what circumstances a defendant will be deemed to have appellate waived review of a constitutional chal- to a lenge instruction under State v. Golding, 213 Conn. 233, 567 A.2d (1989) one of the most —is significant decisions with which this recently court has wrestled. This jurisprudence, court’s namely our well established doctrines of waiver and error, induced dic- Golding tate that unpreserved review of instructional errors should be only foreclosed when the record reflects that the defendant, through counsel, defense knowingly intentionally relinquished objection his to the error. Instead, majority conflates and mischar- acterizes this court’s precedents in order to lend cre- dence wholly to a system novel of categorizing unpreserved trial errors which, under essentially, a 32Although prosecutor’s repeated Justice Katz finds the on-the-record wholly analysis, conversations with the court irrelevant to this we believe they that, should have served as a vivid reminder to defense counsel regarding intent, if he had concerns the instruction on he could have brought multiple them to the court’s attention. Counsel’s failure to do so on suggests agreed given. occasions thus that he with the instructions that were Golding waived will be have defendant deemed merely participating claim review of an instructional object failing in a conference charging In court or the state.1 order proposed by the instructions public approach, majority employs justify this purpose under- policy analysis that contravenes forty years jurispru- established over lying principles, unpreserved trial errors. appellate review dence, I relies rule, majority In forth new setting its analysis concerning court’s case law flawed this Golding review of trial errors.2 In to order waiver of 1 that, majority noting although it It the insists that does not is worth adopt approach Golding of of instructional to waiver review the state’s application, errors, difference, description significant either in or there is no by proposed adopted majority. and the the the state’s rule rule between setting majority under which waiver The characterizes the state as out a rule injury acquiesces following meaning occurs defendant instructions when a trial, participates opportunity the rush of in a ful to review them outside exception charge charging and takes no to conference the record Despite contending adopting after delivered. that it is not it has been nearly majority rule, which state’s out a identical rule under waiver sets provides a to occurs when the trial court set written instructions opportunity counsel, meaningful review to defense allows of and instructions, acquiesces and defense comment on those opinion. part concurring II See of this instructions. majority recognized Golding agree 2 I with the that this court that has analysis unpreserved induced, also cannot be used to review claims invited, regardless known error of the constitutional nature error. as Cruz, 97, 104, (2004); Gibson, A.2d 445 v. 270 State v. 269 Conn. 848 State 55, 66, (2004). 1040 found Conn. 850 A.2d I note this court has induced Golding only or claims when a defendant has invited error instructional suggested language challenges. that he later submitted or instructional Coward, 296, 305, 972 (“[w]ith respect (2009) See v. 292 Conn. A.2d 691 State review, Golding to concedes that he induced the claimed defendant very by requesting charge improper”); error that he now claims n.7, 966 Madigosky, (2009) (mere acquies State v. 291 Conn. 35 A.2d 730 Griggs, error); v. cence did constitute induced State 288 to instruction not n.13, (2008) (“[tjhere 951 induced Conn. A.2d 531 was no instruc request tional this case the defendant not submitted a error in because had Gibson, suggested language”); to instructional State respond affirmatively by failing (defendant 67-68 induced error court’s question limiting instruction, failing he as to whether wanted correct provide a for this I analysis, begin context with the purpose Golding principles fundamental review. It that, rule, appellants is well settled as a are general appellate not entitled review that were of errors not Evans, State distinctly raised at trial. See 61, 66, nearly 576 (1973). Nonetheless, forty A.2d Evans, years this court “two ago recognized situa tions may ‘exceptional constitute circumstances’ newly such that raised claims will can and be consid ered this court. The first is . . . a new consti [when] readily tutional right not foreseeable has arisen between appeal. the time of . ‘excep trial . . The second tional circumstance’ arise the record ade [when] quately a claim supports clearly that a has litigant been deprived of a fundamental constitutional right and a fair trial.” 70. (Citation omitted.) Id., Thereafter, State v. Golding, supra, 213 Conn. 239-40, the court State v. Evans, reformulated the standard announced supra, 61, after the state had urged it to revise the Evans standard of review for errors preserved at trial “because the used easily words the standard though said lend application.” themselves to inconsistent v. Golding, 239. The court decided “neither to adopt pure a plain error alleged standard for constitu tional violations, Evans attempt nor to past to reconcile Instead, decisions. guidelines designed [i]t articulate[d] to facilitate a burdensome, applica less more uniform Evans tion of present standard future cases involving alleged constitutional violations that are raised appeal.” for the first time on Id. on Relying Whistnant, v. methodology 427 requested give court’s statement that had court that defendant limiting request instructions, failing to file to written or to object Cruz, supra, charge); (defendant see State 105 n.7 induced error by affirmatively requesting jury instruction). 3 present only exceptional The case concerns the second circumstance identified in Evans.

503 adopted (1980), the now familiar A.2d 414 the court part Golding four test.4 Golding history rationale of

This reflects that the predecessors constitutional and its “fundamental appellate importance rights courts are of such alleged viola- should review claims of constitutional exception an a fails to take tions even when defendant alleged violation at trial court level.” State Wright, App. (2009). A.2d 448,461, 114Conn. 969 827 Evans/Golding capacious to be The rubric was intended rectify any enough errors constitutional trial court “[B]ecause case. that affect the outcome a criminal implicate rights, it constitutional claims fundamental automatically categorically . . . would be unfair raising a meritorious to bar defendant from constitu- solely trial because tional claim that warrants a new identify failed to the violation at trial. the defendant Golding appropriate balance between these strikes competing interests: the raise such defendant appellate appeal, and the tribu- constitutional claim only it, nal will but if the trial court record is review adequate appellate v. Canales, for review.” State (2007). A.2d 572, 581, Conn.

Despite recognition essential function of our of the Golding recognized review, we also have that a defen- narrowly may, through in a few dant, counsel, defense spe- instances, defined waive such review. Within the we have drawn instructions, cific context of from knowing understanding waiver as a the traditional prevail preserved on a claim constitutional error not defendant can “[A] only following (1) at trial if are met: the record is all conditions adequate alleged error; (2) is of claim of the claim constitutional review right; (3) alleged magnitude alleging the violation of a fundamental clearly clearly deprived the constitutional violation exists and defendant of analysis, trial; subject (4) a fair if to error state has failed harmless beyond alleged violation to demonstrate harmlessness constitutional Golding, supra, a reasonable State v. 213 Conn. 239-40. doubt.” 504 relinquishment a right;

and intentional see Johnson Zerbst, 458, 464, 1019, v. 304 U.S. 58 Ct. 82 L. Ed. S. holding 1461 in that a defendant waives (1938); appel- a properly preserved late review of even instructional only error when record that demonstrates the defen- affirmatively accepted dant the instruc- knowingly 632-33, See v. Whitford, 610, tion.5 State 260 Conn. 799 preserved A.2d 1034 chal- (defendant waived (2002) to error lenge instructional because “the defendant’s at trial accepted supple- conduct indicated that he mental as sufficient to charge cure claimed instruc- v. error”); Jones, 70, tional State 193 Conn. 475 87-89, (defendant preserved A.2d 1087 chal- (1984) waived by to lenge participating fashioning erroneous supplemental failing object instruction and to to Recently, explicitly we instruction). extended waiver Golding doctrine to review of instructional errors. See v. Conn. Fabricatore, 469, 478, State A.2d 872 (2007) (“A prosecution defendant a criminal may waive one or more of his or rights. her fundamental In Golding ... the usual situation, the defendant raises appeal which, preserved a claim on while trial, not at at least was waived omitted; at trial.” [Citations quotаtion internal marks Our applying cases omitted.]). waiver to review Golding prior are consistent with appellate review, cases waiver to applying generally, they Golding indicate that defendant will waive only by affirmatively review jury to a agreeing specific instruction See, discussed the record. v. e.g., State Holness, 535, 289 Conn. 543, 958 A.2d 754 (2008) waived (defense counsel challenge instruction agreeing limiting suggested by instruction state); Fabricatore, State 481 (defense challenge object waived instruction failing to instruction, expressing instruction, satisfaction plain Pierce, This includes review for error. See (2004). A.2d 375

505 and lan- proper adopting that instruction was arguing in his summation). guage instruction majority beyond The well the circumscribed goes by improp- cases approach to waiver outlined in these erly waiver into three expanding categories: our cases an express of and with (1) acknowledgment agreement accep- with instruction; trial conduct consistent (2) instruction, when there no on- tance the even was instruction; (3) the-record consideration of the and acquiescence an one more following to instruction I opportunities agree to review the instruction. with in first majority the that waiver occurs the category record a cases —when the demonstrates defendant’s express acceptance of acknowledgment knowing specific The two do remaining categories a instruction. accord, however, our established case law majority holdings approaches the misconstrues the Fabricatore, of State v. and State supra, Brewer, (2007), Conn. 927 A.2d 825 in order support of waiver. to these novel categories Fabricatore proposition

The relies on for the majority that this has found when there was no on- court waiver jury instruction, of the challenged the-record discussion but the in trial conduct consis- engaged defendant other acceptance tent with of the instruction. This represents Fabricatore. As the facts gross misreading matter, it is in that there preliminary that, case, clear had concerning been an on-the-record discussion later instruction on which challenged self-defense, v. Fabricatore, State duty supra, included to retreat.6 my majority disputes reading part of Fabricatore based The on its case, that, in that there never an on-the-record discussion conclusion was so, majority allegedly improper language. doing recognize In fails of the duty challenged of the retreat defendant mere inclusion impropriety fully appar language instruction, the self-defense an throughout regarding the ent on-the-record instruction. See discussions Fabricatore, supra, (providing Conn. text of 474-75 self-defense Brewer, Q‘[i}T\Fabricatore, instruction); see also State v. 283 Conn. 360 duty challenged trial retreat in the defendant court’s inclusion excerpt 281 Conn. 475 n.10 (providing of discussion between Additionally, defense counsel and trial court). requested the state had duty instruction on the thereby retreat, explicitly the defendant putting notice that that limitation on the defense was under Moreover, consideration. specifically we noted: only object counsel not failed to to the “[D]efense instruction as or to the given original request state’s to charge duty retreat, clearly but expressed his satisfaction with that instruction, and subsequently fact argued the instruction as given proper. was Indeed, defense counsel himself addressed duty to retreat in his own summation.” Id., 481. The Fabricatore therefore fit facts squarely within our previously established doctrine of waiver, which required explicit acknowledgment acceptance aof later challenged instruction. See State v. Holness, 543; State Whitford, supra, 260 Conn. 632-33; State v. Jones, supra, 193 Conn. 87-89.

In addition, majority relies on Brewer for the proposition that this yet court has recognized a third category of cases within appellant which an waives review anof instructional error failing object to, and acquiescing in, the instructions following one or opportunities more to review them and contends that present case, which acquiesced defense counsel generally to a set instructions, is analogous to Brewer. Again, these conclusions represent a misappre- hension of our In Brewer, defense counsel case law. and the trial court discussed on the record the later challenged instruction and explicitly defense counsel acquiesced to the instruction State v. Brewer, given. as jury charge on self-defense because the case did not involve the use of deadly force”). Moreover, despite blatancy of whаt he later claimed to error, expressed be an defense counsel charge, his satisfaction with the object prosecutor’s failed duty to the reference in his summation to the duty to retreat and went so far as to address the to retreat in his summation. “Defense counsel took We noted: supra, 283 Conn. 357. trial by the given from the instructions exceptions no objection its state, however, registered court. The offense of a lesser included court’s inclusion the trial for includ- explained its reasons The trial court charge. specifi- and then charge, offense the lesser included ing if the as read cally defense counsel asked responded: requested. Defense counsel what had been ” in original.) Your Honor.’ correct, (Emphasis ‘That is an instance emphasized: “This is not addition, Id. In we exception failure to take defense counsel’s language included the as which given, instruction specifi- a case in which he attacks, he now but rather is with that instruction cally his satisfaction expressed recently con- by the trial court. As we queried when 481- Fabricatore, supra, v. 281 Conn. cluded in [State simply cannot situation, this factual we 82], ‘[u]nder party done to either injustice conclude that [has been] clearly violation ... or that the constitutional alleged of a fair clearly deprived the defendant exists ” that apparent v. 360-61. It is Brewer, supra, trial.’ State record, on the explicit discussion, this case involved by the jury instruction later specific challenged of the by express defendant, followed the defendant’s Brewer Accordingly, to that instruction.7 agreement 7 majority in the trial court The contends that the on-the-record discussion give an instruction on lesser included concerned whether the court should unanimity excerpt offenses, requirement. acknowledge I that the not the Brewer, supra, n.7; by court; State v. colloquy 283 Conn. 357 the cited this Brewer, unanimity requirement. express In discussion of the contains no however, responding that had not were to the defendant’s claim he we unanimity required challenge instruction waived review of his Sawyer, 566, 576, (1993), because State v. 227 Conn. 630 A.2d 1064 that, have been futile. We reiterated “as such claim to the trial court would discussed, previously face of an this is not a case of silence we improper instead, allegedly charge; counsel it is a case in which defense charge. specifically expressed with that Such an affirmative his satisfaction futility.” simply support cannot lend to a claim of action Sawyer specifically ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​​‌‌​​​‌‌‌‌​‌​‌​‌‌​‌​‌‌‌​​‌​​‍unanimity Brewer, v. n.11. Because concerns in Brewer instructions, that the defendant I that the court’s statement believe id.; charge”; added) “expressed (emphasis his satisfaction with had necessarily unanimity charge. refers to majority’s lends no credence to the conclusion we present have the facts in the long recognized case to constitute waiver.

Rather than acknowledge the limited nature of waiver cases, majority unduly reflected these focuses in State purportedly on the unworkable holding Ebron, 292 Conn. 682, 975 A.2d I (2009). recog- response nize that our to the Appellate Court’s treat- ment of the doctrines of induced error and waiver8 in may entirely that case not have been clear. Nonetheless, law, our case consistent with principles purpose of Golding, provides a workable framework for evaluat- when the ing conduct of defense counsel forecloses Golding review of a constitutional challenge, including jury instructions. As Fabricatore, suggested 8Although any finding this court has maintained that of waiver must derive acceptance specific suggestion from a defendant’s clear and affirmative language, panels Appellate suggested instructional some Court have acquiescence jury that a defendant’s mere to a set of instructions preclude Golding Velez, App. 347, 357-59, review. See State 113 Conn. (failure exception response 966 A.2d 743 to take trial court’s question proof Fabricatore), about of intent constituted waiver under cert. denied, Akande, (2009); 291 Conn. 970 A.2d 729 State v. App. 596, 608-609, (2008) (“We 960 A.2d 1045 decline to draw a distinction stating problem between charge defense counsel that he had no with a specifically requested stating that he and defense counsel that he had no problem jury charge specifically requested. with a that he had not There is stating also no difference between counsel that he has no comment about charge stating and counsel that the as read was correct. In both cases, objection waived.”), aff'd, 551, we find the to be 299 Conn. 11 A.3d (2011); Farmer, App. 82, 88, (failure State v. 108 Conn. 946 A.2d 1262 request exception constancy to file to or take to of aсcusation instruc Fabricatore), denied, 914, tion constituted waiver under cert. 288 Conn. (2008). cases, Appellate A.2d 185 In these Court construed the defen acquiescence Golding review, dant’s to constitute a waiver of and in the process, preserve. conflated the distinction between waiver and failure to Partly response approach by Appellate Court, attempted to this we clarify approach Ebron, supra, our to induced error and waiver in v. doing so, suggested only 292 Conn. 682. In we that waiver occurred when actively challenged Id.; the defendant induced the later error. see also State Ovechka, App. 733, 741, (“[w]here 118 Conn. 984 A.2d 796 there is an actively give indication that the defendant induced the trial court to [improper] challenges appeal; Ebron, instruction that he now on State v. [supra, 682];the defendant’s claim is waived and thus not reviewable under Golding” quotation omitted]), denied, 905, marks cert. 295 Conn. [internal (2010). 989 A.2d 120 inquiry which this derives proper to view through lens waiver. “Waiver principle from the well established relinquishment abandonment of is an or intentional the idea of known ... It involves privilege. or right . . The understanding. is an act . assent, and assent deny permitted no be rule is that one shall applicable of his acts consequences that he the natural intended it In order waive a claim of law and conduct. ... . . . be certain of the necessary party is not that a efficacy. It is legal the claim and its correctness of of the claim and enough if he knows existence efficacy. . . . Connecticut reasonably possible of its consistently party when a fails to courts have held that presented claim raise the trial court constitutional appeal acquiesces to the trial affirmatively party any such claim.” order, (Inter court’s waives quotation Velez, nal marks 113 Conn. omitted.) State App. 357-58, denied, 966 A.2d cert.

917, 970 A. 729 (2009). 2d consistent with our case waiver

Accordingly, law, by what has deemed “active effectuated this court of an error or other intentional relin- inducement” quishment privi- or abandonment of a known or from lege. Moreover, implied waiver be defense only conduct counsel’s conduct when that demon- affirmatively strates that counsel for- knowingly any objection went to the later instruction. challenged specific framework, Consistent with this within the con- instructions, actively text of both waiver includes an error the later inducing providing challenged (which instruction to the court we have called induced affirmatively or as well as error) embracing invited court, instruction offered counsel opposing long so as that conduct demonstrates any objection affirmatively knowingly forwent the later instruction.9 challenged courts, purpose clarity that, 9 I in the federal invited reiterate for the as or induced a subset of waiver. The federal courts deem error is instructions 510 approach requires case-by-case

Because this analy- sis to determine when occurs, waiver which has not entirely helpful been Appellate Court, I suggest that we turn to related federal case law to further illumi- nate the distinction between waived error and unpre- served error. Cf. State v. Evans, supra, 165 Conn. 69 in the most (“Only exceptional circumstances can and will this court claim, consider a constitutional or other- wise, that has not been raised and decided in the trial court. The same general adopted by rule has been federal Federal review courts.”). unpreserved trial “plain errors —so called error” review —is governed by rule 52 (b) the Federal Rules of Criminal Procedure.10 expressly provides that the defendant errors, to the court to be invited generally waiver, treat such foreclosing errors as a subset of thus review. Cruz-Rodriguez, 1179, See (10th United States v. 2009) 570 F.3d 1183 Cir. (“the applied waiver doctrine has error”); been in situations of invited United Hertular, 433, (2d 2009) (“a States v. 562 F.3d Cir. defendant who has challenged charge any right appellate invited a has waived review” [inter quotation omitted]); nal Hamilton, 734, marks United States v. 499 F.3d (7th 2007) (“[h]ad challenged Cir. [the been one of the instruction] requested instructions, any objection defendant’s giving it would indeed ” have been waived ... it would have been a case of ‘invited error’ [cita omitted]), denied, 1129, 951, tions cert. 552 U.S. 128 S. Ct. L. 169 Ed. 2d 782 (2008); Wall, (1st 2003) (defendant United States v. 349 F.3d Cir. by requesting specifically waived error approving challenged later charge). circuit, however, One suggested federal has that invited errors differently may waiver, subject should be treated than be to review for “ ” iryustice.’ Rodriguez, ‘manifest United States v. 602 F.3d 350-51 (5th 2010). Cir. (b) Rule 52 provides: of the Federal Rules of Criminal Procedure “A plain may rights error that though affects substantial be considered even it brought was not Although to the court’s attentiоn.” the federal courts refer plain review, practical application this doctrine as error it is treated in Golding like this court’s review. Supreme The United four-pronged States Court has set forth a test to determine whether (b). “First, a trial error be reviewed under rule 52 there must be an error or alegal defect—some sort of from [deviation rule— intentionally relinquished abandoned, i.e., that has not been affirmatively or waived, by appellant. Second, legal . . . error must be clear or obvious, subject dispute. rather Third, than to reasonable . . . the error appellant’s rights must have affected the substantial .... Fourth ... if prongs satisfied, appeals the above three are the court of has the discretion remedy ought only the error —discretion which to be exercised if the seriously fairness, integrity public error reputation judicial affect[s] proceedings.” (Citations omitted; quotation omitted.) internal marks Puckett

511 distinguish courts rule, this federal In applying we merely are “forfeited” (what between errors reviewed, be unpreserved errors), which call be “waived,” cannot reviewed. that are which those Rosa, Islands v. 399 Virgin e.g., Government of See, simply, 283, (“[s]tated Cir. most (3d 2005) F.3d 290-91 analy- plain error forfeiture, apply we where there was quota- we do not” sis; waiver, where there was [internal this exception omitted]). With tion marks approach of the federal terminology, distinction in this court. The United that of courts consistent has “Whereas forfei- Supreme explained: States Court timely assertion of a ture is failure to make the relinquishment intentional or aban- right, waiver is the quotation marks right.” donment of a known (Internal Olano, omitted.) United States 725, 733, 507 U.S. 113 L. 2d In (1993). applying S. Ct. 123 Ed. 508 1770, emphasized that, have doctrine, waiver federal courts waiver, allegedly order to find the defendant who waived must done so inten- knowingly, the error have deliberately. tionally example, For the Tenth Circuit explained: has is accom- Appeals Court “[W]aiver plished intent, through but forfeiture comes about party deliberately when a .... Waiver occurs neglect an intentional decision considers an issue makes v. Cruz- United States forgo omitted.) it.” (Citations Rodriguez, 1179, F.3d Cir. (10th 2009). 570 1183 reveal applying

Federal cases the waiver doctrine defendant, when a principles three guiding regarding counsel, waived through defense will be deemed have appellate to a later error. agreeing challenged review waiver, itself demon- First, to establish the record must an issue and deliber- strate the awareness of his party’s v. United see also Ed. 2d 508 United States, (1993). States 556 U.S. 129, 135, 129 Olano, U.S. S. Ct. 725, 733, 1423, 173 113 S. L. Ed. 2d 266 Ct. (2009); L. conditions forgo ate decision to such are challenge; United States or inferred.11 presumed See, e.g., never v. Zubia-Torres, (10th 550 F.3d Cir. 2008) simply devoid evidence that (“The record is defense knew of the argument considered presume it. We will not a waiver or infer one making United States sparse from a as as v. this.”); record Hamilton, 734, 2007) (“The 499 F.3d 736 Cir. (7th gov pick ernment with a through asks us the record fine- lawyer tooth infer that comb and the defendant’s must have instruction which thought okay, the in event his object failure to would be .... deliberate But we can not find that, indication of and doubts should be resolved . . . against finding pre of waiver for judicial review cluding it invites a that challenge the lawyer’s object failure to constituted ineffective assis tance of omitted.]), counsel.” cert. denied, [Citations 552 U.S. 128 S. Ct. 1129, 951, 169 L. Ed. 2d 782 (2008); Perez, United States v. 116 840, (9th F.3d 845 Cir. 1997) (“[w]hat we are concerned with in is evidence the of, record that the defendant i.e., of, was aware knew relinquished the or abandoned right”).

A second, related, but principle that, holds in the context challenges instructions, waiver results specific only when: that (1) instruction is later chal- lenged is the attention defense brought counsel; that is (2) record; instruction discussed on the and (3) defense counsel explicitly actually nonetheless and 11 suggesting adopted In that Justice Palmer and I have inconsistent stan dards, majority apparently my adoption overlooks of this fundamental principle waiver, general which states in terms the same view articulated opinion concurring application in regarding principle Justice Palmer’s of that specific Golding in the context review —that waiver “cannot be deemed clearly demonstrating, expressly ... the absence of record either impliedly, knowledge potentially, charge, counsel’s at least was constitutionally counsel, infirm and that in the exercise of his [or her] professional judgment, forgo any concerning possible decided to claim infirmity.” (Emphasis original.) Therefore, inconsistency the claimed illusory. States Con- See United approves of the instruction.12 court ner, 2009) (The Cir. (7th 583 F.3d when had been established that waiver concluded “[the object to the court’s merely fail to did not defendant] abetting. During aiding regarding instruction expressly conference, charging [defense] challenged] aiding later preferred that she stated [the At no time over the alternative. instruction abetting objected that she did she indicate this discussion all.”); at aiding abetting instructing Cir. Polouizzi, States (2d F.3d United positions incompatible parties’ with the 2009) (“Faced . . . proposed definition regarding [District with this option. a third Presented proposed [C]ourt the instruction indicated that option, defendant] [the circumstances, agreeing satisfactory. In these satisfactory, the instruction was that defendant] [the the instruction challenge waived the to right Sanders, United States 699, v. 520 F.3d appeal.”); colloquy, when, during waiver (finding Cir. (7th 2008) expressly repeatedly stated defense counsel acceptable him); instruction was to later challenged Perez, supra, United States (“[w]aiver v. 116 F.3d 845 considered the occurred . . . because the defendant spite of law, element, and, or omitted controlling accepted applicable law, proposed or aware of the being Lakich, United States v. 23 F.3d instruction”); a flawed when Cir. waiver (7th 1994) (finding 1207-1208 alerted to issue with trial court and counsel had been by jury, from court jury instruction note original court’s principles approach are consistent with this court’s 12 Ireiterate that these Holness, supra, See, jury e.g., State v. to waiver of instructions. jury agreeing (defense challenge to waived to instruction counsel Fabricators, by state); limiting suggested v. instruction failing challenge (defense to instruction counsel waived Conn. 481 instruction, arguing object challenge, expressing satisfaction with to proper adopting language instruction in his sum instruction was mation). attorneys ways remedy to consider gave overnight problem, agreed precise defense counsel instruc tion defendant later Courts decline to find challenged). waiver when one of these elements is missing. See v. Wisecarver, United States 598 F.3d 988 (8th Cir. 2010) court concluded that no waiver (The had been established when it was “not clear that coun [defense relinquishment sel’s was an ‘intentional statement] abandonment’ of known .... He did not, for example, explicitly say objection that he had no to the challenged] aspect of the instruction or that it [later was a correct statement of the law that he was willing to be bound United by.”); DiSantis, States 565 F.3d 354, 361 Cir. (7th 2009) (defense thanking judge after judge rejected counsel’s proposed instruction not . . . type approval “the of actual of a instruction that would constitute waiver”); United States Hamil ton, supra, 499 F.3d 736 failure (“a object, which for all we know was inadvertent —there were nearly fifty pages instructions, and while the judge objec invited tions he didn’t lawyer ask the defendant’s whether the lawyer agreed instructions to which he did not object, lawyer specifically or ask the about later [the instruction —is challenged] not an ‘intentional relin quishment of a known right,’ the canonical definition [emphasis waiver” in original]); Government Virgin Islands v. Rosa, supra, 399 F.3d 293 (no waiver when is no indication that “[t]here [the defendant’s] attorney knew of and considered the controlling law, despite and being accepted aware of the [flaw], flawed instruction”). may

Third, there indeed be a rare instance of tactical improper waiver of an instruction that a defendant later appeal. challenges While of tactical findings waiver necessarily are fact-bound, and therefore difficult to they reduce to clear rules, do reveal a common thread. Tactical waiver result from a object; failure to see

515 Cir. Yu-Leung, 1116, (2d 1122 v. 51 F.3d United States the tactical only waiver when find but courts 1995); as inaction, counsel’s action value of defense indisputable, record, in the is obvious reflected are met.13See for waiver requirements the other when Quinones, (2d F.3d 321-22 United States v. it was a tactical no doubt that have 2007) (“We Cir. a life ... agree defendants decision for [the] death. . . . The only alternative to was the sentence As a obvious.”). is value of such a concession tactical waiver with tactical dealing of the cases result, most where the evidentiary claim in the context of an do so recognize. is easiest to objecting value in not strategic Cir. Cooper, (7th 243 F.3d See United States v. rather clearly decision strategic was (“[t]his 2001) Yu-Leung, United States v. oversight”); than a mere fail apparent supra, (“[i]t [the defendant’s] testimony was challenged at trial to the object ure to Coonan, United States 938 F.2d choice”); a strategic circumstances, these (“[u]nder Cir. 1553, 1561(2d 1991) difficulty concluding that we have no [the defendant] evidentiary claim”). this appellate waived review of has II well estab- prеcedent and both this court’s Ignoring waiver, concerning jurisprudence lished federal jus- public policy concerns majority attempts to use for tify catego- of both a new framework its fabrication approach approach Again, with our this is consistent I note that [petitioner] recognized strategic allow the waivers. We have that “[t]o allowing strategy has failed would amount to his trial seek reversal [after] potentially error, ambush the state with that harmful and then him to induce Fabricatore, State appeal.” quotation omitted.) (Internal marks claim on always, however, imposed the same 281 Conn. 480-81. We have suspected finding regardless requirements motivation or for waiver actions, namely, that the record reflects that behind a defendant’s intent Id., knowing 480.1 continue to believe that and intentional. the waiver identify preclude capacious enough to waiver doctrine is our traditional waivers, including strategic waivers. all pursuant waivers and a new rule to which a rizing in a Golding participating defendant waives review pursuant practice. conference to our rules of charging majority’s analysis policy The public the relevant concerns, however, First, ignores is unsound. it principles purposes Golding fundamental and review, namely Golding the essential role that review plays protection in the of individual constitutional rights. Second, implicit it contradicts several of the presumptions understandings this court has embraced concerning appellate the value of review of error, appellate and the role of trial and counsel in that process. Finally, it fails recognize to the detrimental effect that likely the new rule will have on the court system positive impact overestimates new rule in provide trial encouraging judges meaning- opportunity ful for the review of instructions.

To practical majority’s understand the effects of the rule, thereby new public evaluate the relevant policy concerns, it is critical to closely examine application present of that rule in the case. Counsel for the defendant, Kitchens, essentially Marvin participated in several on-the-record conferences which he declined to raise concerns related to the instruction at issue in appeal. provided this The trial court then parties with written instructions. At a subsequent conference, prosecution raised several issues unre- lated to the challenged instruction. The trial court asked opportunity defense counsel if he had had an to review the instructions, “my to which counsel replied, copy is downstairs, any major but I didn’t have revisions.” The court then ended the conference without further com- attorneys. ment from the majority emphasizes

The pres- several facts about the ent case, attempt in an seemingly demonstrate that defense opportunity counsel had a “meaningful” object review and First, majority instructions. defense counsel several notes that the trial court asked to request charge whether he was to file a going times note, however, I and defense counsel declined to do so. bearing has no request charge that a failure to file a because, had defense counsel any Golding inquiry properly so, preserved done the error would have been appellate Terwilliger, review. See State for direct party A.2d 721 399, 406, (2009) (“A jury was preserve appeal for a claim that a instruction improper request either a written submitting exception as taking charge given. majority notes Second, Practice Book the 16-20.”). § counsel, prosecution the and the trial court defense parts discussions about unrelated engaged cannot, however, instruction. I understand how a dis- jury cussion of one instruction bears on whether the object jury failure to to a instruction meets different requirement for that it waiver, namely, knowing part opinion. III intelligent. concurring See of this Third, majority emphasizes prosecutor’s repeated attempts preferred to obtain instructional his I fail language. Again, comprehend the connection prosecutor’s between a actions and whether defense object counsel’s failure to to a set of instructions majority’s constitutes waiver. Accordingly, opinion effectively proposition stands for the that a defendant Golding error, waives review of an instructional even if the challenged specifically instruction is never dis- cussed, long provides as as the trial court a set of written jury instructions, adequate allows defense counsel time instructions, to review those and then holds a charging conference in which acquiesces, defense counsel gener- ally, to the In words, instructions. other if the trial court procedures follows the set forth in the Practice Book concerning instructions, a defendant will be denied access to review. Golding practical

Accordingly, majority’s effect of the approach principles contravenes the underlying the hurdle of elimination of

purpose Golding —the claims at the trial preserve” “failure to constitutional appellate review for in order to facilitate court level part See I of this unpreserved constitutional claims.14 depends opinion. devising In a rule concurring to determine conference charging the use of challenge the defendant has waived his whether in estab- instruction, majority, essence, the a defective in participation lishes conference provide of the instructions a sufficient advanced notice that, when the defendant upon presume basis which to object instruction, the he is nevertheless fails to to merely opposed negli- as acting intentionally, being undermines this court’s exhorta- approach This gent. Golding review is intended to break down tion that appellate or absolute bars to review categorical review an entire class of trial errors. foreclosing of object Moreover, by that mere failure to concluding improper to an instruction constitutes a waiver of the essentially appellate majority defendant’s the rights, consequences him bear the of the error singles out to 14 error,” “plain The doctrine of that is error that is so fundamental that ability challenge appeal, the defendant will not lose his it on does not inability Any Golding ameliorate a defendant’s to access review. reliance may plain on the error doctrine as a fallback measure on which defendants rely misplaced “[j]ust question because as a valid waiver calls into the depriving existence of a constitutional violation the defendant of a fair trial review, plain purpose Golding a valid waiver also thwarts error for the of may only [pjlain . . review of a claim. . be invoked [The] [e]rror [r]ule of forfeited-but-reversible error . . . and cannot be used for the instances purpose revoking valid waiver. This is so because if there an otherwise waiver, . . . has been a valid there is no error for us to correct. The distinc [pjlain [ejrror [rjule right (to a forfeiture of a which the tion between right (to [pjlain [ejrror [rjule applied) be and a waiver of that which the applied) [wjhereas forfeiture is the failure to make the cannot be is that timely relinquishment right, or aban assertion of a waiver is intentional quotation right.” (Citation omitted; donment of a known internal marks Correction, 62, 70-71, omitted.) Mozell Commissioner of Therefore, majority’s reframing implied (2009). waiver fore A.2d Golding plain acqui review and error review when a defendant closes both following charging esces to instructions conference. and the on the trial court despite equal obligations the error. prosecutor identify and to correct of sev majority’s approach The also flies the face implicit in our Gold understandings, eral fundamental value of ing jurisprudence, about the nature and expec appellate review of criminal convictions and our appellate tations of advocates at both the trial and level. majority’s approach undervalues the role that First, appellate unpreserved plays in fulfilling review of errors appellate Appellate courts’ essential functions. (1) courts serve “two basic functions: correction error declaration that no correction is (or required) particular declaration of litigation; (2) legal principle, creation, clarification, extension or over . . . ruling. respectively These are the corrective and preventive Appellate J. “The Phillips, functions.” Scope Review,” Review Function: 47 Law & Contemp. approach Probs. In its (Spring 1984).

public policy concerns, majority solely focuses the first function acknowledge impor and fails to unpreserved ability tance of the review of errors to our clarify jury declare and the law. is a Instructing particularly point critical in a trial; indeed, criminal improper instruction has a watershed effect on “[a]n jury’s law.” D. understanding Carter, “A Exceptions Restatement of to the Preservation of Error Requirement Cases,” in Criminal 46 U. Kan. L. Rev. 947, 960 (1997-1998). Beginning Golding itself, with this court has set questions forth or clarified substantial propriety jury instructions in cases in regarding which we unpreserved reviewed instructional errors. See, v. e.g., Cook, 237, 250, Stаte 287 Conn. 947 A.2d (2008) (defendant charged carrying dangerous weapon entitled to instruction that must consider factual circumstances surrounding alleged threat); v. Flowers, 547-48, 278 Conn. 898 A.2d 533, (2006) proper intent instruction for (clarifying burglary forth circumstances under which setting State v. improper charge); rectifies

closing argument Scott, 517, 528-29, (2001) (clari 256 Conn. 779 A.2d 702 fying proper degree instruction for sexual assault first Golding, State v. (con 213 Conn. 238 fellatio); that amount obtained fraud is essential ele cluding crime, therefore, ment of court must instruct Indeed, unpreserved for claims advanc concerning it). novel theories or to overrule established ing seeking jury instructions, law direct review is the regarding only opportunity clarify appellate for the courts to law, correct as habeas relief under ineffective theory be See assistance of counsel would foreclosed. Correction, Ledbetter Commissioner 451, 461-62, (“[Counsel’s 880 A.2d 160 failure (2005) legal arguments to advance novel theories or does not performance. . . . Nor is coun constitute ineffective required change then-existing provide sel law to representation.” omitted; effective internal [Citations cert. denied sub nom. Led quotation marks omitted.]), Lantz, better L. 546 U.S. 126 S. Ct. Ed. 2d 77 (2006). that

Second, presumptions in contravention of our competent, majority’s counsel is both ethical and approach appellate judges presume, allows from nearly records, silent trial counsel’s failure to object to an instruction derived from contriv strategic It is well established negligence. ance rather than mere presume we that all trial advocates act within the forth in our Rules of Professional ethical standards set Chambers, 296 Conn. See, Conduct. e.g., that defense attor 420, 994 (2010) (presuming A.2d 1248 ney ethically professional responsibil invoked rule of Cator, State 785, 794, 781 A.2d 285 ity); contrary, absence of evidence to the (2001) (“[i]n attorney performed has may presume corut that this any potential of to inform his client obligation his ethical presume attorneys we also conflict”). Although competence provide adequate representa- have the clients; tion to their see Rules of Professional Conduct expect any attorney, especially we do trial l.l;15 attorneys pressure intensity of working under the flawlessly. an We must also ongoing trial, perform appellate attorneys, with the benefit of recognize identify time and are often able to errors hindsight, inadvertently Carter, trial D. missed counsel. expertise appel-

46 U. Kan. L. Rev. (“the evolving presentation prejudicial late counsel assures the errors”). Golding jurisprudence Our is founded [trial] scope on these limitation its must principles, take into account that most trial understanding errors derive from rather than con- negligence strategic appellate system trivance. See id. American (“the premised reality ordinary procedural on the that the inadvertence, inexperi- default is bom of the negligence, ence, incompetence quota- of trial counsel” [internal tion marks omitted]). majority’s

Rather than these recognize principles, the approach depends upon assumption that the defen- attorney unethically by dant’s behaved fail- knowingly to correct a ing mistake of law violation of rule 3.3 of the Rules of Professional Conduct.16 I would not presume, except cases, in the most obvious of that the defendant has in a tactical decision to engaged forgo lawyer provides: Rule 1.1 of the Rules of Professional Conduct “A shall provide competent representation Competent representation to a client. requires legal knowledge, skill, thoroughness preparation reasonably necessary representation.” for the (a) provides Rule 3.3 of the Rules of Professional Conduct in relevant part: lawyer knowingly: “A shall not “(1) Make a false statement of fact or law to a or fail tribunal to correct previously a false statement of material fact or law made the tribunal lawyer; [or] “(2) legal authority controlling Fail to disclose to the tribunal in the jurisdiction lawyer directly position known to the to be adverse to the by opposing the client and not disclosed . . . .”

522 faulty. he knew to be that objection to an instruction

an presumption the aforementioned In addition to for express my I reluctance attorneys ethically, behave no sense simply it makes First, reasons. several other has made that the court attorney recognizes who for an trial say nothing in the instructions a mistake hopes challenging in the to correct the error court appeal, convincing later on the instruction error was that a true constitutional reviewing court light In that it was harmful to the defendant. made and rarely courts reviewing showing of the statistics Golding prevail can conclude that the defendant only not improper jury instruction,17 challenge be unethi- attorney in this behavior engaging would an D. Carter, as well. See incompetent but he would be cal, is from (“[njothing gained 46 U. Kan. L. Rev. 951 reputation or an except disparaged sandbagging, H. “Is Innocence attorney Friendly, grievance claim”); Judgments,” A Attack on Criminal Irrelevant? Collateral exceedingly L. Rev. (1970) (“[it] 38 U. Chi. lawyer his a case where a defendant or hard to visualize deliberately lay aside a meritorious claim so as would Second, was jailed”). to raise it after the defendant mind readers. See United appellate judges are not 865, 871 Cir. Frokjer, (8th 2005) States v. 415 F.3d waiver because record not to find tactical (declining state of mind). to determine counsel's enough clear January May 5, 2010, approxi 1, 2000, this court considered From requested Golding review, mately appeals in which a defendant 140 criminal including in which the court determined that the defendant not cases approximately types appellate cases, review. Of those 140 entitled to other errors, Golding in which the claims for review of instructional 70 involved only 6 cases. court found reversible error approximately period, Appellate During the same Court considered appeals requested Golding in which a defendant review or 550 criminal review, including court, sponte, engaged Golding cases in which sua legal governed Of that another framework its review. the court determined Golding cases, approximately involved claims for review of those 550 only error, error in 17 cases. and the court found reversible instructional any finding Therefore, that waiver has resulted from a dependent upon strategic choice should be demon inconsistency, apparent record, strated from the strategy, between defense counsel’s trial as reflected strategy trial, counsel’s course of action at and the challenge e.g., reflected in the later See, to the error. Cooper, supra, (counsel United States 243 F.3d 416 objection tip by referring tip waived to substance of throughout opening closing argument statement and theory case); order to bolster of United States v. Coo (counsel objection nan, 938 F.2d 1561 waived by concerning gang to evidence violent activities wel coming admission of evidence in order to convince enough gain that defendant was not violent or brutal gang). Again, admission into such a case, definition, majority gov will rare, be inwill, cases, be erned our traditional waiver doctrine. See footnote concurring opinion. Accordingly, although 13 of this necessary acknowledge it be the existence of strategic exception I waiver, do not believe that that should drive the rule. majority’s likely

Moreover, the new rule will have a impact functioning detrimental on the effective system. preliminary court As a matter I note that the number of cases which a defendant obtains reversal Golding of his conviction on the basis of review of negligible. instructional errors is See footnote 17of this concurring opinion. attorneys Therefore, well versed in Golding jurisprudence our do not see review under panacea. Collapsing its umbrella as a the distinction negligence between and intentional waiver serves merely delay resolution of the claimed error and to by requiring increase the workload of our trial courts bring petition the defendant to a habeas for ineffective majority appellants assistance of counsel. The vast requesting Golding review of instructional errors also properly preserved Golding seek review of errors or Under errors. unpreserved noninstructional review will enti- appellants be majority’s approach, these of their claims before appeal a direct of some tled to pursue unpre- their court, but will have to appellate separate in a habeas error claims served instructional who seek review appellants those proceeding. Even will have to only Golding error claims instructional preserve in order to appeal those claims on direct raise therefore, this best, review.18 At them for habeas responsi- merely venue, shifts the and thus approach courts, the habeas bility these claims to evaluating for actually increases the net workload of and, worst, at judicial system. majority’s approach I that is Finally, disagree pro- whether trial courts likely impact significantly to instructions, afford copies рroposed vide written of on-the- time to review those instructions and then hold majority’s rule First, the charging record conferences. that trial will premised presumption judges is on the duty to ensure a fair trial without the not fulfill their repre- review. This appellate carrot of limited dangling undeservedly skeptical judges view of the trial sents by any entirely unsupported this state that is data Similarly, majority’s or anecdotal evidence. presumption on the that defense approach predicated request to or requests charge counsel will not submit they potential recognize conferences when charging problematic important relating or issues to previously, instructions. As set forth this contravenes Golding unpreserved review is not available for This court has held that Warden, appeal. of error raised for the first time in a habeas claims Safford Cupe v. 180, 190 12, 612 A.2d (1992); see also Commissioner 223 Conn. n. Correction, App. 262, n.12, (“Golding 791 A.2d 614 does 68 Conn. authority inapplicable grant . . . . . for collateral review and is . to denied, (2002). proceedings”), 795 A.2d 544 habeas cert. position Golding Therefore, having to raise this leaves defendants waived, appeal, knowing that the court will deem them to be claims on preserve to them for habeas review. order acts defense counsel that presumptions our established understanding as the ethically, as well competently defense incentive for provides no Golding review that legal meritorious withhold purposefully encour- majority’s approach even if the Finally, claims. con- request file a attorneys to defense ages important, as they identify instructions cerning as erro- they recognize any instructions to contest counsel, defense impact no when it will have neous, inadvertence, recognize fahs negligence through precise are the Indeed, these instruction. an erroneous rectify.19 See meant review is Golding errors opinion. concurring I this part

Ill and federal precedent this court’s from both Drawing should not be that a defendant it is evident precedent, jury instruction to a challenge have waived a deemed to that the defendant reflects clearly the record unless aspect of particular challenged aware of the expressed satisfaction and the defendant instruction II of this part See part of the instruction.20 with that standard, I cannot this opinion. Applying concurring pres- in the majority that waiver resulted with the agree failed to take the defendant merely because ent case unless the matter bound to consider error this provision has been may properly preserve fails Section 42-16 provides delivered. applicable ^[958] objected despite ^{[20] [19]} A.2d 731 Similarly, The state to consider failure to comply to and taken Counsel (2008) Golding does not claim that the defendant’s encourages majority’s is covered by (engaging taking ground review. See, § as to the appellate in relevant part: 42-16 sets party §with defense counsel the exception reliance on in exception. appealing giving Golding 42-16). a written review of an instruction, e.g., State forth the of, Practice Book review of instructional or the “An immediately shall state distinctly . . .” The request to file a procedure King, appellate failure to actions constituted to 289 Conn. 496, 502-503, request majority suggests charge or § after 42-16 is misplaced. give, court shall and thus is not which counsel to an instruction charge, error claim the matter exception charge induced not be that but or invited error.

exception he now challenges. Although provided the trial court a written copy of the instruc- tions and parties twice asked the for their concerns or exceptions, in nothing the record demonstrates that the specific defendant was aware of the problem with the appeal instruction at issue in this and nonetheless inten- tionally relinquished his challenge it. Accord- I ingly, would conclude that the defendant did not waive

Golding review.

Having determined that the defendant did not waive I Golding review, must examine his claim of instruc-

tional impropriety. See footnote of this concurring opinion (setting forth four-pronged Golding test). Spe- cifically, the defendant claims that the trial court’s improperly instructions provided with a defini- “intentionally” tion of that included language concern- ing general intent, despite the fact that the defendant only charged crimes requiring specific ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​​‌‌​​​‌‌‌‌​‌​‌​‌‌​‌​‌‌‌​​‌​​‍intent. He further claims that this instruction improperly allowed him guilty find kidnapping unlawful restraint without determining he had the specific intent proscribed in the engage conduct. The state concedes that the instruction was improper, but contends that the instructions were nonethelеss consti- tutionally 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 the second degree violation of General Statutes 53a- § (a)21 unlawful restraint in the first degree violation of General Statutes 53a-95 In (a);22 § (a) provides: person guilty § General kidnapping Statutes 53a-94 “A is of degree person.” in the second when he abducts another provides: (a) person General guilty § Statutes 53a-95 “A is of unlawful degree person restraint in the first when he restrains another under circum expose person physical stances which such other to a substantial risk of injury.” of general principles law, on the the instructing of intent: provided following trial court the definition intentionally statute, person “As our a acts defined when con- respect with to a result to conduct his is to cause result or objective engage scious such in the court explained such conduct.” Later charge, that, to the defendant in the guilty kidnapping find prove beyond the state reason- second must degree, Jen- victim, able doubt that the defendant abducted “ explained: naha Ward. The court further Abduct’ means, pertains case, person to this to restrain as it his or threaten- prevent using intent to liberation term ing physical the use of force or intimidation. The a person’s ‘restrain’ means to restrict movements inten- tionally unlawfully in a manner as to interfere such liberty my with his .... You will substantially recall earlier them apply instructions on intent and here also.” The court a similar instruction on the gave unlawful in the first degree, informing restraint first jury that to find the defendant on guilty charge, beyond a prove state must reasonable doubt that the defendant restrained the victim and that such restraint exposed physical the victim to a risk of substantial “ ” injury. defined as “to restrict a The court ‘restrain’ intentionally unlawfully person’s movements substantially such a manner as to with his interfere liberty will my .... You recall earlier instructions on intent here apply them also.” preliminary matter,

As a claim meets the defendant’s therefore, first prongs Golding and, two review- transcript First, able. the record contains a for Sec- instructions, adequate and is therefore review. ond, improper it is established instruction well magni- on an of an offense is of constitutional element DeJesus, tude; 472-73, see (“[a]n improper A.2d 1101 instruction an ele- (2002) ment of ... is of dimension” an offense constitutional quotation marks omitted]); specific and that

[internal intent is an essential element of both kidnapping v. Salamon, restraint. unlawful 287 Conn. 542, 572, 949 A.2d I, turn (2008). therefore, whether the may prevail defendant on the merits of his claim. test of a court’s is not charge whether it is as

“[T]he upon accurate legal principles opinions as the aof court of last resort but whether fairly presents it the case to jury way injustice such a is not done to either party under the established rules of law. ... As long as are in law, adapted correct [the instructions] issues and sufficient for the guidance jury . . . we will not view the instructions as improper. . . . appeals involving constitutional question, [I]n [the standard reasonably whether it is possible that the is] jury misled. ... In whether determining it was [was] . . . reasonably possible jury was misled the trial court’s instructions, jury is not to be critically dissected purpose for the of discovering possible inaccuracies of but statement, it is to be consid- ered rather probable as to its juiy effect [on] guiding to a correct verdict in the case. . . . The [it] test to be applied ... is whether the charge, consid- ered whole, presents as a the case to so that injustice no will (Internal quotation result.” marks omit- ted.) Id., 572-73.

Salamon is instructive. That case also involved a specific crime of intent but the trial court improperly provided only had a general intent instruction. We con- cluded impropriety that this require did not reversal “because the accurately court thereafter explained that, prove restraint, element of required the state was to establish that the defendant had restricted the vic- tim’s movements intentionally unlawfully in such a manner so as to interfere substantially liberty with her by confining her without her . . consent. . Under this possibility no that the explanation, there is reasonable guilty have found the defendant unlawful could had that he had restraint unless it first found restricted with intent to interfere sub- the victim’s movements the stantially liberty. words, other because with her In defined in that include the restraint is itself terms requirement specific intent, and because the trial jury definition, instructed the properly court by prejudiced was not the trial court’s the defendant in compliance failure define intent full with [the (11).”23(Inter- definition under General 53a-3 § Statutes] quotation Id., nal marks 573-74. omitted.) present case, properly As the concedes in the state incorrectly the trial court’s definition of intent encom State See passed specific general intent. both A.2d 696 Francis, 339, 358, (1998) 246 Conn. 717 pro it is for trial court to (although improper generally statutory vide entire definition of intent when particular required intent, no in context of specific error Youngs, jury misled); case when not A.2d cert. 280 App. 348, 361, denied, 1240 (same), as in Salo Therefore, Conn. A.2d 959 (2006). mon, reasonably was question possible the whether it jury general that the relied on the intent instruction to specific convict of a intent crime. Reading the defendant jury as a I conclude that it was whole, instructions reasonably In possible that the misled. present case, provided the trial exact court twice provided same definition of restraint as was the trial Salomon, required court in which explicitly to find the defendant had restricted victim’s substantially movements with intent to interfere with liberty. her I conclude that the trial Therefore, provides ‘intentionally’ (11) person acts § General Statutes 53a-3 that “[a] respect defining a result or to described a statute conduct objective engage offense when his conscious is to cause such result or to in such . . . conduct adequately

court’s instructions presented the elements in charges kidnapping the second degree unlawful jury. restraint the first degree There- fore, the defendant has failed to establish that there was a constitutional violation. I

Accordingly, concur. PALMER, J., with NORCOTT, whom KATZ and Js., join, I concurring. agree with, join, Justice Katz’ thoughtful concurrence. I write separately, however, to why, my underscore view, majority is incorrect that defense finding counsel knowingly and intention ally waived the claim defendant, Kitchens, Marvin the concerning constitutionality of the solely on the basis of counsel’s statement that he had objection no to the court’s instructions after having been afforded a opportunity reasonable to review and comment on those instructions. In its conclu reaching sion, majority the disregards the well princi established ple that, to be effective, the record must demonstrate that object counsel’s failure to to the charge on constitu tional grounds represented the intentional relin quishment of a known right. maj ority’s Under the flawed application of concept the of implied waiver, counsel will be found to have purposefully waived claim that the defendant have had with respect to his process due to a right properjury charge, thereby fore closing appellate review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),1 even though Golding, prevail Under “a defendant can aon claim of constitutional preserved only error not following at trial if all of the conditions are met: (1) adequate alleged error; the record is (2) review the claim of the claim magnitude alleging is of right; constitutional the violation of a fundamental (3) alleged clearly clearly deprived the constitutional violation exists and trial; subject (4) the defendant of a analysis, fair if to harmless error the state has alleged failed to demonstrate harmlessness of the constitutional beyond (Emphasis violation original.) reasonable doubt.” State Gold ing, supra, 213 Conn. 239-40. absolutely in the record to demonstrate nothing there is actually any potential aware of defect that counsel was that, majority concedes under Indeed, the the charge. will be sufficient infer its the record deemed holding, instruc- knowledge alleged that the defense had the voluntarily impropriety relinquished right tional appeal, though the instruction on even challenge impropri- no that the alleged record contains evidence that the had a discus- ety invited, was induced court issue counsel or that sion about the instructional indicating conduct that engaged counsel otherwise object tactical rather than inadvertent. the failure to was both counsel in the establishing a record that Lacking that and elected to present case aware of defendant, majority it on behalf of the never- waive of a appellate the defendant review con- theless denies claim otherwise satisfies review- stitutional fully As more ability requirements Golding. explain I predicated hereinafter, majority’s approach supported by facts, namely, that is inference that, whenever defense counsel has been afforded fair to review and comment on court’s opportunity instructions, and, thereafter, counsel informs the court objection instructions, no it is he has those matter, to as a factual that coun- appropriate conclude, consciously еvery rejected sel aware of and con- challenge the ceivable constitutional to instruc- Moreover, majority’s analysis tions. the weakness of the that, prin- is reflected the fact under well established readily ciples waiver, of defense counsel can avoid the majority’s thereby Golding holding, and ensure review unpreserved of all the any challenging claims con- stitutionality simply by instructions, of court’s advis- failure to ing the trial court that his raise constitutional he no objection is due to the fact that is aware such of of an to waive objection, and because intent potential Finally, claims. the unsound constitutional approach majority that the will adopts make it signifi- cantly more difficult, and in some cases impossible, for a defendant to obtain a new trial even when he can deprivation establish a process his due to a right fair accurate instruction.2 Before my commencing majority’s review of the anal- ysis, I first set forth several unchallenged principles concerning the issue of waiver. “What suffices for depends waiver on the nature of at issue. participate personally defendant must [W]hether waiver; whether certain procedures required are for waiver; whether the defendant’s choice must be particularly informed voluntary, all depend on the right at stake. United v. Olano, States U.S. S. Ct. L. 1770, 123 Ed. 2d For (1993). certain

[113 508] fundamental rights, defendant must personally make an e.g., Johnson v. Zerbst, See, informed waiver. 458, [464-65, U.S. 58 S. Ct. L. 1019, 82 Ed. 1461] (1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7-8 S. Ct. 16 L. Ed. 2d (1966) (right to [86 314] plead not guilty). For other rights, however, waiver be effected action of counsel. Although there are basic rights attorney cannot waive without the fully informed and publicly consent acknowledged agree majority present provides 2 Ido appropriate with the that the case opportunity clarify implied for this court to reexamine and the law on waiver applies impropriety as it Golding, to claims of instructional under in view previous pronouncements subject hardly the fact that our on the have clarity. Although been a model of I believe that our decision State v. Ebron, 656, 681-82, (2009), 975 A.2d 17 comes the closest setting legal principles, my forth the knowledge, correct this court has engaged thorough analysis concept implied never in a waiver pertains unpreserved insofar as it constitutional claims of instructional Indeed, date, implied error. this court has not evaluated a claim of waiver express applicable reference to the standard of a waiver constitu right, is, that, effective, tional to be such a waiver must reflect relinquishment right. intentional Consequently, prior of a known our cases particularly helpful resolving question posed by this area are not present appeal.

533 author has —and must have —full client, lawyer Taylor Illinois, v. ity of the trial. manage to the conduct 2d 646, 108 S. 98 L. Ed. 400, [417-18, Ct. 484 U.S. 798] the conduct many pertaining decisions to As (1988). by is bound the acts trial, the defendant deemed have notice and is considered to of his lawyer-agent upon be facts, charged of which can of all notice Co., R. 634 attorney. Link v. Wabash 626, 370 U.S. [82 Thus, .... deci 1386, 8 L. Ed. 2d (1962) S. Ct. 734] effect as to what by generally given counsel are sions Barnes, see Jones v. U.S. pursue, 745, 463 arguments L. what 3308, (1983), S. Ct. 77 Ed. 2d 751 987] [103 v. Missis Henry evidentiary objections raise, see 564, 13 L. Ed. 2d sippi, 379 443, U.S. 451 S. Ct. [85 408] regarding to conclude agreements what (1965), McGill, see United States v. 11 evidence, admission 223, Cir. Absent a demonstra (1st 1993)]. F.3d [226-27 word on matters ineffectiveness, counsel’s such tion of quotation internal marks (Citation omitted; the last.” Hill, New York 114-15, U.S. 120 110, omitted.) Mozell see 659, S. 145 L. Ed. 2d 560 also (2000); Ct. Correction, Commissioner 62, 71, 967 Conn. A.2d well settled that a criminal defendant (2009) (“It is him under the constitu may rights guaranteed waive may . . . mechanism which be right tion. The at waived, however, right varies stake. according . . the defendant rights, . For certain fundamental . . . personally make an informed waiver. For must however, may be effected action rights, other waiver omitted; quotation internal counsel.” [Citations v. Smith, marks Conn. omitted.]); 960 A.2d 993 (2008) (same). that, no reasons of coun- dispute strategy,

There is for intentionally defendant’s knowingly sel waive a particular to a instruction constitutional of the defendant’s due despite fundamental nature 534 adequate jury to an When

process charge.3 entitlement occurs, precluded a waiver the is from such defendant because, appellate review of defective “[t]o to seek reversal his trial allow defendant [after] strategy has would amount him to allowing failed potentially error, induce harmful and then ambush the appeal.” with that State v. Fabricatore, state claim 480-81, 872 469, 281 Conn. 915 A.2d In such (2007). satisfy circumstances, moreover, the defendant cannot Golding prong; the third see footnote 1 of this concur opinion; it cannot said that ring alleged because be “the clearly clearly constitutional violation exists and deprived the of a trial . . . .” v. defendant fair State Golding, supra, 213 Conn. 240. course, may express may

Of such a waiver be or be implied See, conduct. v. e.g., Smith, supra, State 289 621. Thus, express Conn. does not have to be “[w]aiver may . . . but consist acts or conduct from which may implied waiver be .... In other waiver words, be inferred from circumstances if it reason is do v. Gaskin, able to so.” State 116 Conn. App. 739, 753, 681, denied, 977 A.2d cert. 294 Conn. 914, 983 A.2d 851 Both this court (2009). Appellate Court consistently concluded, however, have that waiver of a constitutionally protected trial right not valid unless represents relinquishment it “the intentional or aban donment of a right.”4 quotation known (Internal marks 3 dispute right constitutionally adequate also is There no that the to a right. Indeed, routinely instruction is a fundamental this court has concluded satisfy Golding, pursuant prong claims such the second which unpreserved only magnitude claim is reviewable if it “is constitutional alleging Golding, supra, the violation . .” of a fundamental . . State v. fact, present majority case, expressly 213 Conn. 239-40. In in the has acknowledged that the defendant’s claim is reviewable under second Golding prong, stating that “the claim of error instructional on an element implicates magnitude of the crime is of constitutional it because due process rights of the defendant.” 4 “voluntary relinquishment court This also has defined waiver as the or express implied legal right (Internal or notice.” abandonment — —of quotation omitted.) Hampton, 435, 449, marks v. State 978 A.2d Correction, supra, Mozell Commissioner v. omitted.) 569, Conn. Woods, accord State v. 71; Conn. Gaskin, State 753; 583, 4 A.3d 236 (2010); W., App. 19, 974 A.2d Thomas Conn. 911, 983 A.2d 276 This (2009). cert. 294 Conn. granted, aas strict aptly which has been characterized standard, Woods, supra, 583; first one; see, e.g., State v. more

adopted by Supreme Court than the United States Zerbst, supra, seventy years ago; see Johnson v. 304 . . “unyielding that . 464; U.S. reflects court’s his trial rights that a defendant’s waiver of insistence it is and intelli knowing be effect unless given cannot 5 Illinois v. quotation marks omitted.) gent.” (Internal 111 Rodriguez, 183, 110 2793, U.S. S. L. Ed. 177, 497 Ct. Thus, necessarily 2d a waiver “involves 148 such (1990). assent, and assent is an act of understandi idea of State v. quotation marks ng.”6 omitted.) (Internal Hampton, 449, Conn. 978 A.2d 1089 435, (2009). 293 “ of parties of the ‘is great Because the conduct ” in we importance’ waiver; id.; look to determining Fabricatore, accord State v. (2009); 482 n.18. There 1089 281 Conn. is no material distinction between these two characterizations of principle. waiver 5 requiring knowing intelligent The waiver in such circum reason for a Supreme explained, stances As the United States Court has this is obvious. applied guaranteed rights “strict of waiver to a standard has been those possible greatest that he will be criminal defendant insure accorded every opportunity utilize model of a fair criminal facet of the constitutional open possibil Any derogation that trial. trial conducted of model leaves ity precisely protections that all the the trial reached unfair result because provided. specified . . . The in the were [constitution [constitution requires every effort to see to it a defendant a criminal be made unknowingly relinquished (drain protections the basic that the case has not indispensable (Citation Schneckloth thought omitted.) v. ers fair trial.” to a Bustamonte, 241-42, (1973). 2d 854 412 U.S. 93 S. Ct. 36 L. Ed. necessary constitutionally course, adequate prereq Of instruction is uisite to a fair trial. majority suggested 6 I that a less note that neither state nor the has proof presented stringent applicable of issue standard waiver possible claim, appeal. absence I address the this In the such do not applicability such a standard. the record to discern whether the was waived right knowledge right. counsel with the existence full words, See In waiver presup- id. other effective “[a]n poses knowledge privilege allegedly full or designedly and some act [being] waived done know- Moreover, it. . . . ingly relinquish waiver must be accomplished sufficient awareness of the rele- likely vant circumstances and consequences.” (Internal quotation omitted.) Perricone, marks Perricone 187, 207, Conn. A.2d 666 accord State v. (2009); Santiago, 301, 310-11, 715 A.2d 1 (1998). Furthermore, whether this determining stringent met, inquire standard has “a been court must into the totality of the circumstances of each case.” (Internal quotation marks omitted.) Woods, supra, Foreman, Conn. also 583; see State 288 Conn. 684, 697, 954 (2008) purported A.2d 135 (validity of waiver question is depends of fact that on circumstances of particular a case). Because fundamental constitutional every is at “we will right stake, pre- indulge reasonable sumption waiver . . . . . . against pre- [will] acquiescence sume the loss a . right]. . . [such In addition, waiver of fundamental constitutional is right presumed not to be from a record.” (Inter- silent nal quotation marks v. Woods, omitted.) 583-84.

Thus, in the present casе, counsel cannot be deemed to have to a waived the defendant’s constitution- ally adequate jury charge the absence of a record clearly demonstrating, expressly either or impliedly, knowledge poten- counsel’s that the at least charge, tially, constitutionally counsel, infirm and that professional the exercise his decided to judgment, forgo any infirmity. claim that concerning possible Of course, majority neither state nor claims that supports the record a finding express waiver. Never- theless, jurisprudence, maybe under our counsel found impliedly a claim that the court’s to have waived constitutionally To estab were deficient. instructions bears implied waiver, however, the state lish such stringent burden of the same standard meeting waiver waivers, namely, that the applicable express relinquishment of a known represents the intentional may is, be it implied waiver Consequently, right. —that if the record conduct may only be reveals inferred — knowledge both that counsel had demonstrating intentionally claim potential constitutional for reasons. presumably strategic not to it, decided raise Hirschfeld, Inc. v. See, Enterprises, Wadia e.g., is the 618 A.2d 506 251-52, (1992) (“Waiver Conn. . . . of a known relinquishment right. intentional but of acts or express, Waiver need not be consist may be ... In implied. from a waiver conduct which words, may be inferred from the circum other waiver . Assuming if it is to do so. . . stances reasonable [the implied applicability of the doctrine threshold of] . present plaintiff . . would waiver case] [to knew have to make a defendants showing still they . right[s] [intentionally] of their . . before could omitted; quotation waive internal [them].” [Citations omitted.]). marks consti- principles apply unpreserved

These waiver Golding The tutional claims for reason. narrow good a will exception general reviewing to the rule that court a is previously not consider claim not raised at trial by the justified importance protecting the overriding rights fundamental of the accused. See constitutional Golding, supra, 213 Conn. 238-39 (explaining “exceptional” presented by unpreserved circumstance if for violation record sufficient claim constitutional Evans, see also State Conn. review); identified Golding A.2d 576 (1973) (predecessor ” “ when “the ‘exceptional circumstance’ arises has adequately a claim that a supports litigant record clearly deprived been of a fundamental constitutional and a fair In trial”). present case, however, majority fails to adhere to principles these respect to a certain category cases, is, class or those cases in which defense counsel, a following charge conference at which has counsel been afforded timely notice of the charge, informs the court that he objection has no to the charge.7 The shortcoming majority opinion is attribut- able to the majority’s implied determination of an waiver conduct on the basis of a clearly record that support does not such inference. to the According majority, when, in present as case, defense counsel, been having given sufficient time to review expresses charge, approval of the it charge, is reason- able to infer that counsel knowingly intentionally any waived objection constitutional to the In charge. other words, such circumstances, defense counsel will be deemed both to have known of potential constitutional claim and to have decided not to raise majority it. The reaches this conclusion even though there is nothing the record to indicate either that counsel was aware of the constitutional issue or that he intentionally opted any to forgo objection to constitutionally defective instruction.

“An inference process of reasoning which [a] a fact or proposition sought to be established is deduced generally 7 Ihereinafter refer to defense counsel’s failure to raise consti challenge any tutional fact, given case, court’s In instructions. may challenges. course, have raised one or more such Of each of represents challenges preserved claim, those and, therefore, constitutional Golding purposes appellate defendant need not invoke obtaining for My review of those claims. references to counsel’s failure to raise a claim impropriety of instructional are to and all such claims that defense raise, irrespective counsel did not of whether counsel raised one or more course, other claims of instructional error. Of the fact that counsel have raised bearing one or mоre such claims has no on the extent to which may may the defendant not be deemed to have waived ail other such claims that defense counsel did not raise. a state of facts, or from other consequence logical

as a quotation (Internal admitted.” already proved facts, Mortham, 158 F.3d 1177, 1183 Walker omitted.) marks v. Ct. 809, 120 U.S. S. denied, cert. 1998), Cir. n.10 (11th Fermaint, v. see also State L. Ed. 2d 36 39, 145 (1999); J., dis (Bishop, A.2d 539 665, 881 App. 650, Conn. a simply is terms, an inference plain senting) (“[i]n cert. proven facts”), based on deduction or conclusion Thus, (2005). 999 A.2d 90 denied, 276 Conn. “[a]n reasoned, It or a is suspicion guess. not a inference is fact exists disputed that a to conclude decision logical known to fact the basis of another exist].” [that Gonzales, Siewe v. omitted.) marks quotation (Internal inference is reason Cir. “An 160, 168 2007). (2d 480 F.3d probabilis logical flows from able if the conclusion omitted.) marks quotation reasoning.” (Internal tic Truong, (2005). 425 F.3d United States reviewing conduct of counsel apparent that the It is objec- has no the court that he advising charge inference that support it is insufficient tion to the defendant’s intentionally abandoned counsel Coun- charge. challenge to raise a constitutional constitutional potential aware of a might have been sel remedy not to seek to and elected infirmity charge in the for con- there is no reasoned basis impropriety, but claim fact, aware of the was, that counsel cluding a discussion it. In the absence of to forgo and decided during constitutional claim potential of the in the record that other indication conference, or some claim, of such was aware of the existence counsel, to infer simply it is unreasonable intentionally abandoned it. claim, knowledge every presump- reasonable Thus, “indulg[ing] far from constitutional waiver of fundamental against tion omitted) marks quotation rights”; (internal adher- 583-84; and otherwise Woods, for this court demands standard” that to the “strict ing purposes the waiver of a constitu- demonstrating quotation id., 583; tional marks right; (internal omitted) majority by any applies that, measure, test falls required support well short of what is finding implied Indeed, majority provides expla- waiver. no why as nation it is reasonable to infer that counsel intentionally claim, has abandoned a constitutional claim, merely full of that knowledge because counsel to the agreed charge having after been afforded a opportunity reasonable fact, to review it. In in terms likely it is far probabilities, more that counsel raised objection no constitutional to the because he objection. aware of no such majority’s The reasoning scrutiny cannot withstand another, for related, albeit reason. Under reasoning, presume we must that defense counsel was aware of and elected every to waive constitutional claim that conceivably could have respect been raised with to the court’s instructions. majority This is so because the treats as waived and all constitutional claims to which the defense had objected after having had an adequate opportunity to review the charge. Thus, may appear, it at although glance, majori- first that the ty’s inference of a knowing per- intentional waiver only specific tains claim at appeal, issue on under majority’s defense counsel reasoning, necessarily is deemed to every have waived single constitutional possibly claim that could respect have been made with to the court’s course, instructions. Of such infer- unreasonable; ence is no attorney defense or team of attorneys, defense no matter how capable prescient, possibly could expected be to recognize every each and constitutional claim —meritorious and unmeritorious, innovative and not so conceivably creative —that might be raised to challenge constitutionality of the court’s jury charge. Nevertheless, that is precisely the inference majority finding which the relies defense impliedly waived the defen- present case dant’s constitutional claim.8

Furthermore, majority’s because the inference and, therefore, bears no reason- unsupported waiver to raise failing relation to counsel’s actual intent able readily the claim, future counsel can avoid cases, a To do majority’s inherent unfairness of the decision. a reviewing who wish have so, counsel does not to Golding object treat his failure to as a waiver for court by simply informing purposes may avoid such treatment trial that has not raised a constitutional the court he any challenge to the because he is unaware of аnd not because he has elected to waive claim, such implied fact that doctrine of the claim. In view the the is an employed purpose ascertaining waiver for the unstated, when intent coun- actor’s intent that remains express reflecting statement disavowing sel’s waiver — necessarily trump would counsel’s actual intent — implied by Appellate waiver this court or the finding approach majority adopts.9 that Court under the the waiver, claims, establishing note that an to that 8 I the state as alternative right deemed to forfeited defendant’s to raise counsel be have the challenging grounds claim the court’s instructions on constitutional opportunity the when the court affords to review counsel reasonable acceptance charge. majority charge and counsel indicates his of the The rejects explaining forfeiture, contention, the is defined state’s that which timely right”; (internal quotation as “the failure to make the assertion of a Golding unpreserved omitted); a bar an claim of marks is not to review of however, majority effectively impropriety. fact, In embraces instructional the because, purporting reject while to This is as the forfeiture doctrine it. so waiver, support explained, does not an I have counsel’s conduct inference appeal and, consequently, barring the sole basis for the defendant’s claim on timely that trial. from failure to have asserted claim at stems counsel’s Indeed, majority’s predicated forfeiture the fact that the conclusion is on by policy majority’s the not on is demonstrated reliance on waiver necessary Inquiry is to the than fact-intensive that considerations rather the implied waiver conduct has occurred. determination of whether asserting that, majority disputes logic analysis, “an admis The of this only mean that he is of a constitutional claim can sion counsel unaware intentionally namely, competent things, . . . of two counsel has one easily that defense can so The fact counsel overcome majority’s predi- on is the inference which the decision major- cated demonstrates the inherent weakness ity’s reasoning completely import defeats the majority’s of the purpose holding.10 appeal challenge to raise a that counsel waived the constitutional recognize because he fails ineffective existence of a constitutional opinion. majority challenge.” Footnote 25 of the This assertion is incorrect majority majority recognize fails the vast claims that because the by competent claim, namely, it deems waived failure to raise the counsel’s infinitely large category merit. of constitutional claims that lack Just majority response competent as has no the fact that counsel no possibly claims, majority response could conceive of all such also no has that, irrebuttably decision, presumed under its the fact counsel is to have raised, including waived all constitutional claims that have not been claims ultimately major- Unfortunately, are determined to be without merit. ity grips problem analysis. fails to come to with this fundamental in its course, actually Of the rare case in counsel waive which intends to one relating instructions, presumably or more claims court’s so, doing discharging would so advise the court. In counsel would be his duty and, time, avoiding to the court same of candor at the an unwarranted waiver, Golding purposes, respect any otherpotential inference for with of to jury pertaining charge. claims constitutional 10 majority rejects analysis, asserting, first, legal The this that there is “no support preservation by a for blanket trial counsel all of constitutional jury merely challenges to instructions on the basis of counsel’s in-court violation,” second, he or she is of a statement that ‘unaware’ constitutional ploy open up box,’ flooding that a could “such a ‘Pandora’s Connecticut alleging improper jury every courts with cases instructions on conceivable issue,” third, mockery attempt that it would make “a of the trial to court’s query input jury instructions,” and, fourth, and solicit counsel’s on the directly it “would conflict with the mandate of 1.1 Rules rule of the of requires adequate preparation by repre Professional Conduct that in counsel client, presumably familiarity senting a which would include sufficient jury identify constitutionally the to instructions instructions that are flawed.” majority objections opinion. lacking merit, of the Footnote 25 These are primarily they nothing inquiry all because have at to do with thefact-based that, majority acknowledges, as the itself is whether a determinative of intentionally by implica knowingly constitutional has been and waived majority part opinion (whether reviewing tion. II B of See the court by implication depends find that defense counsel waived constitutional claim particular on “a close examination of the and the circum record facts and case,” including, importantly, stances of each most counsel’s “course of Indeed, majority’s conduct”). simply highlight the four reasons the funda problem analysis; predicated mental with its each of those reasons is on policy that, majority claims, express concerns the stem from counsel’s dis- whether, bearing on of as a avowal waiver and that have no the issue matter, knowingly infer that has it is reasonable to counsel factual despite repre- intentionally waived a constitutional claim or claims counsel’s contrary. sentation to the expressed by Furthermore, policy, the even as a matter of four concerns point, namely, majority majority’s no basis in law. The first the have fact or support preservation by legal trial is “no for a blanket counsel there merely challenges all on the basis of constitutional to instructions he or she is ‘unaware’ of a constitutional counsel’s in-court statement that opinion; violation”; majority at least two footnote 25 of the fails for reasons. First, precedent controlling no to cite on the issue because the there is majority’s indeed, majority approach unprecedented; noth- is itself cites opposing Second, importantly, ing support argument. and more its by majority point asserting informing that a statement counsel misses any potential is claim the court that he or she unaware constitutional preservation challenges” ... of all constitutes a “blanket constitutional fact, by a defense the court’s instructions. Id. In such statement counsel claims; merely preserve any rather, does the statement not serve claim that, appeal, will not be from serves to ensure the defendant barred bringing unpreserved claim that otherwise would be constitutional Golding merely because reviewable under counsel unaware failed it at trial. claim and therefore to raise completely majority’s forthright The A second concern also is unfounded. why explaining raise a statement his or her failure to constitu- any challenge tional not be as a waiver of should construed standard, cannot, any “ploy challenge as such fair be characterized provide any support fact, majority . . . .” for its Id. In fails to dismissive rather, pejorative statement; majority of such a characterization simply so, statement, asserts, doing although without basis for that the merely accurate, gambit importantly, is or maneuver. More there is abso- lutely proper application principle to believe the waiver no reason that a appeal appellate will lead to a flood of claims on which counsel raises “every [jury Simply put, majori- . issue ...” Id. conceivable instruction] ty’s unsupported unsupportable. majority’s is both The concern concern unsupported majority provides evidence, because the no anecdotal or otherwise, accepting to substantiate bald assertion that defense counsel’s its representations on the of waiver would in a flood of claims on issue result appeal. majority’s unsupportable is The concern is because there no reason majority appel- presume again, to the itself advances no such reason—that — Appellate with late counsel will flood this court and the Court frivolous constitutionally jury claims instructions. of deficient by disavowing majority The also asserts that a statement counsel a know- potential ing and waiver claims make intentional of constitutional would mockery attempt query input “a of the trial court’s to and solicit counsel’s directly jury the with the on instructions” and “would conflict mandate of requires adequate prepara- rule 1.1 Rules of Conduct of the Professional that client, representing presumably in tion counsel a which would include familiarity identify jury sufficient with the instructions to instructions that merit, constitutionally are flawed.” Id. This assertion is devoid of as well. approach that the a majority’s It is clear constitutes departure jurisprudence gener- marked from our waiver Golding jurisprudence ally specifically.11 and from our Contrary majority, presumed it that to the view of the must be defense represent effectively conscientiously and, counsel seek to their clients further, comply professional obligation will their that counsel with attend concerning jury diligence to matters the court’s instructions with and due Moreover, majority’s suggestion care. there is no basis for the that an attor- ney identify constitutionally jury who fails a flawed instruction would violating Conduct; although may be 1.1 of rule the Rules of Professional it that, cases, support oversight be in some such an would a of ineffective claim counsel, support majority’s legal assistance of there is no or factual for the oversight implicates Finally, assertion that the also ethical concerns. the majority misunderstanding presented demonstrates its of the issue when it adequate preparation by “presumably asserts that counsel would include familiarity identify sufficient with the instructions to instructions that constitutionally (Emphasis added.) fact, are Id. In under the flawed." approach majority adopts, that the counsel will deemed defense be to have challenging waived both meritorious and unmeritorious claims the constitu- adequacy possibly tional of the instructions. Since counsel cannot be expected anticipate potential all unmeritorious claims that be raised appeal, prepared absolutely might be, on no matter how well there no reason that to think rule 1.1 of the Rules of Professional Conduct some- explanation disavowing how will be undermined counsel’s waiver. sum, majority disapproves consequences In it is that the clear of the that perceives knowing it flow from will counsel’s disavowal of a and intentional any impropriety. majori- Putting waiver of instructional aside that the the fact ty’s unfounded, concerns are I submit those concerns do not stem from any logical my that, waiver, flaw assertion under the law of fact-driven finding implied by expressly disavowing a counsel can avoid waiver any majority’s Rather, intent to claim of error. waive instructional con- the wholly principles waiver, cerns flow from considerations unrelated to namely, policy majority considerations that the believes militate favor of denying Golding present explained, review in the cases such as one. As I have however; concurring opinion; majority see footnote of this the seeks to give policy through misapplication voice to those considerations doctrine; reality, majority’s waiver decision rests on forfeiture doctrine, pursuant to which defense counsel’s failure to make claim in a timely is, manner, trial, raising at bars defendant from the claim appeal. Simply put, attorney who, it is that a self-evident defense in his capacity court, represents as an officer he is court that aware infirmity jury charge, possibly of no constitutional in cannot be deemed knowingly intentionally to have waived and all claims chal- future lenging constitutionality charge. of that majority’s squared approach 11 Inote that the decision cannot be unpreserved prosecutorial respect that this court has taken with claims impropriety during closing Specifically, argument. stated we have that a truly implicate analysis majority’s does fact, In that counsel to infer all, at for it is unreasonable waiver any and all constitu- intentionally waived knowingly respect have been raised with that might tional claims of the fact that solely on the basis jury charge no in advance and raised the charge counsel reviewed deny majority decides to Rather, it. objection to primarily on present in the case Golding review to do nothing that have policy basis of considerations principles. The considerations with traditional waiver practice, our rules of majority identifies are: that the “[1] by counsel participation substantial provide which for formulating reviewing jury instructions, ^[2] basic placing fairness that favor of fundamental principles parties’ court and the coun- responsibility with the trial trial necessary measures at the time of sel to take all to ensure that the instructions are correct, ^[3] whether review to determine availability of habeas exception, suggest take or to counsel’s failure to ineffective instructions constituted changes, to thus prejudice, requiring assistance and caused trial.” new alleged process appellate of an due violation defendant is entitled to review prosecutorial though stemming improper argument even defense coun- from objection. See, e.g., argument through and raised no sel sat

Stevenson, 563, 575-77, (2004). If there was 849 A.2d 626 ever might presumed waived a counsel be to have a case which defense claim, it; indeed, expressly recognized we have constitutional that is likely played are to have in such a scenаrio. role that tactical considerations object arguments id., (“defense that he elect not to See reasons, namely, marginally objectionable because for tactical or she deems jury’s attention to it or because he or he or she does not want to draw the omitted]). quotation argument” marks she wants to later refute [internal unpreserved appellate having opted review of such This court not to bar appellate claims, as bar review of claims such there is far less reason to case, that, present in stark contrast to claims raised in the claims those inflammatory closing argument, prosecutor’s allegedly concerning fre- lengthy implicate complex quently embedded in a and subtle issues charge.

In fact, policy none of these considerations has the on the issue of whether counsel know- slightest bearing and waived the ingly intelligently defendant’s to constitutionally adequate jury a instruction. The fact practice provide participa- that our rules of for generally tion defense counsel formulating reviewing provides instructions no into insight whether coun- participation sel’s in particular a case warrants the con- object clusion that a failure to a particular charge reflects counsel’s intentional waiver of a known right. course, policy Of purportedly considerations favor responsibility with the trial placing par- court and the ties’ juiy counsel to ensure that the charge is correct absolutely shed no on light whether counsel’s failure object product was the of a tactical decision or negli- gence. Moreover, availability a remedy habeas also has to do with the nothing fact-based waiver inquiry. Indeed, majority’s the real basis for the conclu- appears sion to be its view that policy it is wise Golding deprive a defendant of review in cases such present as the one, and not because an inference of may fairly waiver be drawn from the record.12 12Although majority say so, does not the result it achieves seems to responsive generally expressed by Appellate be to the concerns Court Reynolds, App. 278, n.7, (2009), State v. 118 Conn. 305-306 983 A.2d 874 denied, (2010), respect cert. 294 Conn. 987 A.2d 1029 to our analysis Ebron, 656, 679-82, (2009). waiver 975 A.2d 17 Characterizing “narrowly defining waiver”; Reynolds, Ebron as State v. n.7; policy relying import relating concerns to the efficacy charge conferences, Reynolds encouraged the court in this court holding respect availability Golding reconsider its in Ebron with notwithstanding acquiescence review charge defense counsel’s in a following charge adequate opportunity a conference and an to review and charge. id., (“Mindful purpose consider that See n.7 305-306 aof charge conference, we are concerned that Ebron could have the effect of rendering charge meaningful conference an inconclusive and less than may during exercise which there be decreased incentive for counsel to clearly proposed charge articulate in a difficult area when counsel advantageous ajar determine it is more to leave the door for [that] another day. place arduous, unnecessary Such a tactic could burden on the trial compose fair, legally appropriate jury court in its effort to accurate and unnecessary relitigation and could result in of criminal matters. majority’s holding, under the

Indeed, appears that, it on a corpus predicated remedy of a writ of habeas be would not assistance of counsel claim of ineffective present case, in the when, cases as available in certain have waived a constitutional is deemed to counsel effectively, perform “to that, It is well established claim. every conceivable and raise recognize need not marks omit quotation (Internal claim.” constitutional Correction, Ledbetter v. Commissioner ted.) sub cert. denied 451, 460, (2005), 880 A.2d Conn. 1187, 126 S. Ct. Lantz, Ledbetter v. 546 U.S. nom. “Moreover, numerous state 164 L. Ed. 2d 77 (2006). counsel’s failure to have concluded that federal courts does not theories or legal arguments advance novel 461. “Nor is performance.” Id., constitute ineffective provide law to required change then-existing to marks quotation representation.” (Internal effective attorney a defendant whose Id., Thus, 462. omitted.) who, at trial —and failed raise a new or novel claim have waived majority’s decision, is deemed to under the from purposes and thus is barred Golding that claim for will be appeal on review of claim seeking —also there is no basis unable to obtain habeas relief because must, Although Ebron, review to the defendant’s we follow as we and afford face, express particular our claim under the circumstances we we concerns practical implications holding regarding trial bench with of its for the hope that, perhaps, acquiescence this issue of waiver or concurrence expressly day.” [Emphasis original.]). overruling has not seen its last In majority policy pertaining Ebron, to the relies on similar considerations explained, As I have these considera- use and value of conferences. properly presented to decide the waiver issue this tions cannot be used nothing any event, they if to do with waiver. In even it case because have analysis policy analysis, appropriate in favor of a were to eschew waiver concurrence, that, agree I Katz for the reasons set forth in her with Justice Golding substantially outweigh policy considera- the benefits of review majority Indeed, because the waiver doctrine tions that the has identified. any important part jurisprudence, an of our it is difficult to see how is such trump requirement policy consideration or set of considerations could knowing that, effective, a constitutional must be to be the waiver of intelligent. Consequently, claim. for ineffective assistance predicated on majority’s extent that the decision is availability remedy, of a habeas that reliance mis- placed because, cases, in some the defendant will have opportunity remedy.13 no to obtain such a for case in which counsel’s failure Moreover, object constitutionally to a deficient instruction rise to a claim of ineffective assistance of counsel gives and that meritorious, claim is the defendant will be required await the successful outcome of his habeas claim before the new trial to obtaining which he is Furthermore, entitled. the new trial will be further delayed by any appeal that the commissioner of correc- tion elects to take from the adverse judgment delay unnecessary habeas court. This is both and unfor- tunate, especially for those defendants serving sen- tence of In addition, majority’s incarceration. prevail decision will make it more difficult unpre- served claims of instructional impropriety. Before today’s decision, a defendant who had established that trial by constitutionally his was tainted a jury defective charge would be to a unless, entitled new trial under Golding; fourth of see prong footnote 1 of this concurring opinion; the state established that improper charge beyond was harmless a reasonable Hereafter, doubt. that same defendant bears the burden only establishing attorney’s representa- that his tion fell below the range competence displayed by attorneys ordinary skill and training in the criminal law, but also that “there is a reasonable probability that, but unprofessional for counsel’s errors, the result 13Apparently, majority exception Golding has carved out an for claims alleging entirely course, right. the existence of an new constitutional Of extremely comprise only such cases are rare and a small subset of cases in which defense counsel will not be deemed to have waived a constitutional challenge cases, to the court’s instructions. In all other the defendant runs the risk that this court will deem his claim to have been waived reject and that the habeas court will the defendant’s claim of ineffective assistance of counsel. different.” (Internal

of the would have been proceeding Fernandez Commissioner marks quotation omitted.) Correction, 970 A.2d 721 830, 835, (2009). 291 Conn. previously opinion, reasons set forth this For the counsel’s decision to in the absence of evidence that tactical, objection charge to the defective forgo justification for this burden on placing there is no defendant. by the majority opinion

The fact that the is driven by majority policy various considerations identified by principles maj waiver is reflected in the ori- and not ty’s that, insistence in accordance with well established whether pertaining waiver, rules the determination of to a constitu- counsel has waived the defendant’s tionally adequate jury “must be based on a close particular examination of the record and the facts and course, circumstances of each case.” Of this is the rule applicable see, waiver proving generally; e.g., v. Woods, majority 583; and so the applicable present asserts that it also is in the case. In reality, approach majority adopts, under the that the court’s “close examination of the record” reviewing particular and careful consideration of “the facts and circumstances of the more than require nothing case” counsel, having determination of whether been reasonable, opportunity afforded a advance to review objection and comment on the court’s raised no charge, so, If court is bound to charge. reviewing treat any aspect challenge constitutional instructions as been waived having counsel.14 14 fact, contrary majority’s conclusion, principles In to the of fundamental economy judicial strongly against majority’s fairness and militate the approach. possibilities There are two when a defendant raises a claim of impropriety Golding-, instructional under either the claim will entitle the majority significant defendant to a new trial or it will not. The of cases are likely category, to fall into the second either because the defendant cannot alleged any establish the constitutional violation or because such violation respect justice category cases, was harmless. With of the interests of clearly appellate rejects are served if the tribunal entertains the claim and a majority adopting also insists that it is not

The purposes determining “less standard” for stringent waived knowingly intelligently whether counsel has and constitutionally a defi- right challenge a defendant’s Contrary majority’s assertion, to the jury charge. cient majority exactly doing. Although what the is apply requirement of a and purporting knowing majority that it intelligent waiver, then concludes reasonably may intended such be inferred that in nothing a waiver even there is the record though even to that counsel was aware of the at suggest issue, which, reflect, so far as the record will is buried somewhere in the court’s set of instruc- lengthy reason, majority employs tions. For that a standard required that is much less than the standard demanding jurisprudence.15 under our well established waiver by Golding avoiding treating in accordance with rather than the claim it as by implication; event, having in that been waived both the defendant and possible the state know at the earliest time that the claim does not entitle trial, and, moreover, raising a the defendant to new there will be no basis for petition corpus. the issue in a for a writ of habeas cases, only very minority category The second a which contains small involving Golding alleging impropriety of cases claims an instructional only magnitude, constitutional ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​​‌‌​​​‌‌‌‌​‌​‌​‌‌​‌​‌‌‌​​‌​​‍in includes those cases which the defendant can establish entitlement to a new trial because of a constitutional violation explained, that was not harmless. As I have rare case which the prevail Golding, deprive defendant can on such a claim under it is unfair to pending filing the defendant of a new trial final resolution of a petition. otherwise, majority does, accomphshes habeas To conclude as the nothing opportunity defendant denies the for a retrial in a timely manner. 15 majority that, “[ajlthough might practice The asserts it be the better for proposed the trial court to read the instructions line line and ask after agrees, meaningful each instruction whether defense counsel we fail to see a repeatedly asking distinction between counsel if he or she has issues proposed charge requesting with the comments from counsel after the majority charge.” Again, court reads each section of the misses the point. purposes ascertaining For whether counsel’s conduct constituted waiver, through it makes no difference whether the court takes counsel merely any objection line line or asks counsel if he or she has charge; support neither case does the record an inference of waiver. previously explained, As I waiver cannot be found from a record that does potential demonstrate counsel’s actual awareness of the existence of

I therefore would conclude that the waiver doctrine Golding preclude does not the defendant from review unpreserved of his claim of instructional impropriety. For the reasons set forth Justice Katz her concur- I rence, however, also would conclude that the defen- prevail dant cannot on the merits of that claim. I concur in Accordingly, the result.

STATE OF CONNECTICUT v. JASON SHOLA AKANDE

(SC 18325) Rogers, J., Norcott, Katz, Zarella, C. Palmer and Js. *

Argued April 28, officially January 5, released 2011 When, present case, claim or claims. as in the the record is silent on that issue, impossible it is to tell whether counsel was aware of the claim and intentionally it, simply abandoned or whether counsel did not read the containing as such claim. * January 5,2011, slip opinion, the date that this decision was released as a operative procedural purposes. is the date for all substantive and

Case Details

Case Name: State v. Kitchens

Court Name: Supreme Court of Connecticut

Date Published: Jan 5, 2011

Citation: 10 A.3d 942

Docket Number: SC 18421

Court Abbreviation: Conn.