State v. Bellamy ( 2016 )

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STATE v. BELLAMY—FIRST CONCURRENCE
ROGERS, C. J., concurring. I agree with the defen-
dant, Brandon Montrell Bellamy, that this court’s
marked expansion of the doctrine of implied waiver of
claims of jury instructional error in State v. Kitchens,
299 Conn. 447, 10 A.3d 942 (2011), was mistaken and,
therefore, I would overrule that decision and return to
the much narrower conception of implied waiver that
previously governed our jurisprudence in this area.
Application of a more restrictive implied waiver rule
leads me to conclude that the defendant’s claim of
instructional error is reviewable on its merits pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989).1 Nevertheless, the defendant’s claim fails
under Golding because it does not raise a claim of
constitutional error.2
It is well established that ‘‘Golding [review] is a nar-
row exception to the general rule that an appellate court
will not entertain a claim that has not been raised in
the trial court. The reason for the rule is obvious: to
permit a party to raise a claim on appeal that has not
been raised at trial—after it is too late for the trial court
or the opposing party to address the claim—would
encourage trial by ambuscade, which is unfair to both
the trial court and the opposing party. . . . Neverthe-
less, because constitutional claims implicate fundamen-
tal rights, it also would be unfair automatically and
categorically to bar a defendant from raising a meritori-
ous constitutional claim that warrants a new trial solely
because the defendant failed to identify the violation
at trial. Golding strikes an appropriate balance between
these competing interests: the defendant may raise such
a constitutional claim on appeal, and the appellate tribu-
nal will review it, but only if the trial court record
is adequate for appellate review.’’ (Internal quotation
marks omitted.) Moye v. Commissioner of Correction,
316 Conn. 779, 784–85, 114 A.3d 925 (2015). Upon reflec-
tion, I believe that Kitchens improperly upset the bal-
ance struck by Golding for a substantial category of
cases, those raising jury instructional error, and did
so for questionable reasons. Returning to a narrower
implied waiver rule would support the goals of Golding
yet prevent the abuse of the leniency it affords.
In Kitchens, this court announced the following gen-
eral rule to determine whether a claim of jury instruc-
tional error will be deemed to have been waived by
trial counsel and, therefore, unreviewable on appeal:
‘‘[W]hen the trial court provides counsel with a copy
of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from
counsel regarding changes or modifications and coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal. Such a determination by the reviewing
court must be based on a close examination of the
record and the particular facts and circumstances of
each case.’’ State v. Kitchens, supra, 299 Conn. 482–83.
The court explained that the foregoing rule rests on an
‘‘inference, or ‘assumption’ of fact’’; (emphasis omitted)
id., 487 n.25; that counsel was aware of the defect later
raised on appeal and decided not to assert it at trial,
and, therefore, that a waiver could be found without
evidence that counsel actually knew of the defect. Id.,
483. In that sense, we acknowledged, the implied waiver
rule depended on a ‘‘legal fiction.’’ Id., 487 n.25.
Upon further consideration, I am convinced that the
inference upon which the Kitchens rule relied was an
unreasonably broad one, and that the circumstances
described in Kitchens more accurately reflect, in the
majority of instances, a forfeiture of the right to claim
a specific error in the instructions rather than a waiver
of that right.3 See State v. Davis, 311 Conn. 468, 495–503,
88 A.3d 445 (2014) (Palmer, J., concurring). As a result,
Kitchens effectively has carved out a particular cate-
gory of unpreserved trial error and deemed it unworthy
of review pursuant to State v. Golding, supra, 213 Conn.
239–40. While Golding permits appellate consideration
of any other type of unpreserved constitutional claim,
Kitchens revokes the right to such review by invoking
the unrealistic assumption that defendants, through
their counsel, knowingly and purposefully have relin-
quished that right in the described circumstances.4 In
my view, the benefits of this approach do not outweigh
the costs, either to defendants with meritorious claims
of harmful instructional error, to the court system or
to society as a whole.
In Kitchens, we relied on a number of additional
factors in support of an expansive implied waiver rule,
among them the remaining availability of habeas
review. See State v. Kitchens, supra, 299 Conn. 496–98.
Upon further reflection, I now realize that, to a defen-
dant with a meritorious constitutional claim, habeas
review is not an effective and equivalent substitute for
direct appellate review. First, because of the delay
attendant to filing a habeas petition, receiving a full
hearing and awaiting a decision thereon, a party who
ultimately prevails in that forum likely will have spent
years of his or her life incarcerated for a conviction
that was constitutionally infirm. It is no answer that
these cases are relatively few. Second, unlike a direct
appeal decided pursuant to Golding, a habeas appeal
presents an inhospitable framework for novel constitu-
tional claims or those that require the overruling of
established authority in order to succeed. Compare In
re Yasiel R., 317 Conn. 773, 780–81, 120 A.3d 1188 (2015)
(party may prevail under third prong of Golding even
in absence of existing, binding precedent supporting
his or her constitutional claim), with Ledbetter v. Com-
missioner of Correction, 275 Conn. 451, 461–62, 880
A.2d 160 (2005) (‘‘numerous state and federal courts
have concluded that counsel’s failure to advance novel
legal theories or arguments does not constitute ineffec-
tive performance’’ and citing cases),5 cert. denied sub
nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368,
164 L. Ed. 2d 77 (2006).6
The unavailability of Golding review for a particular
category of unpreserved constitutional claims does not
just harm individual defendants who might have raised
those claims on direct appeal. It also has costs for
society as a whole, by decreasing and/or delaying the
availability of appellate jurisprudence, primarily con-
cerning the criminal law. In addition to correction of
trial error for the benefit of individual defendants,
appellate review serves the societal function of articu-
lating, developing and refining the common law. R. Cal-
houn, ‘‘Waiver of the Right to Appeal,’’ 23 Hastings
Const. L.Q. 127, 172 (1995). ‘‘Historically, courts of
appeal have been relied upon to announce, clarify and
harmonize the rules of decision employed by the legal
system in which they serve. . . . This is a concern that
extends far beyond an individual defendant’s desire
for access to corrective process.’’ (Footnotes omitted;
internal quotation marks omitted.) Id. As we have recog-
nized in our jurisprudence governing vacatur, judicial
decisions are not merely for the litigants, but are ‘‘valu-
able to the legal community as a whole.’’ (Internal quota-
tion marks omitted.) State v. Boyle, 287 Conn. 478, 489,
949 A.2d 460 (2008). Notably, when this court or the
Appellate Court analyzes a claim under Golding, it con-
tributes to the development of the law regardless of
whether the claim succeeds and results in relief for
the defendant.
Another purpose of appeals is to legitimize state deci-
sion making. ‘‘In other words, appeals are an essential
part of the overall procedural structure which operates
to assure us that the system is a fair one. It is essential
that the system not only be fair but that it be perceived
as fair.’’ R. Calhoun, supra, 23 Hastings Const. L.Q.
178. The right to appeal ‘‘assures the public, rightly or
wrongly, that trial court decisions will be reviewed for
accuracy and fairness and adds an aura of probity to
the criminal justice process.’’ Id. In my view, addressing
a constitutional issue substantively when the record is
adequate to do so, rather than deeming it unreviewable,
adds considerably to this endeavor.
Further, I am not convinced that the benefits of the
Kitchens rule outweigh these costs. In particular, I ques-
tion whether the intended efficiencies truly will be
achieved. Although the rule has reduced the number
of direct appeals addressing claims of jury instructional
error substantively, it has spawned an entirely new area
of jurisprudence addressing whether the requirements
for a waiver have been met.7 Moreover, when claims
are deemed waived under Kitchens, they are not neces-
sarily disposed of with finality. Rather, at least some,
and perhaps many, merely will be deferred, only to
be raised anew in a habeas action.8 Furthermore, the
habeas forum is less efficient than a direct appeal in
that a trial must be held, at which counsel must explain
his or her reasons for failing to object to the instruction
at issue, perhaps with yet another appeal to follow. As
the majority acknowledges, ‘‘a finding of waiver [in a
direct appeal] opens the door to a future habeas pro-
ceeding on which the state and the court will be required
to expend additional limited resources that could have
been devoted to other pending trials.’’ Given these cir-
cumstances, I am inclined to conclude that disposing
of an unpreserved claim of instructional error at the
earliest opportunity, on its merits pursuant to Golding,
is the most efficient approach.
For the foregoing reasons, I believe that this court
should abandon the Kitchens experiment of broadly
denying direct appellate review of unpreserved consti-
tutional claims of jury instructional error and, instead,
return to the much narrower conception of implied
waiver in this area that predated Kitchens. Under pre-
Kitchens implied waiver jurisprudence, a waiver was
not deemed to have occurred by application of any
preconceived general rule, but rather, was determined
more flexibly on a case-by-case basis in view of all the
relevant facts and circumstances. Claims of instruc-
tional error that were not identified at trial were deemed
waived by defense counsel’s approval of the charge9
only when, at the very least, there was specific, on-the-
record discussion of the particular instruction later
claimed to be defective on appeal, and defense counsel,
thereafter, explicitly assented to that instruction.10
Stated otherwise, the record demonstrated that counsel
was focused on the specific instruction later claimed
to be erroneous, thought about it, and then indicated
to the trial court that he or she had no issue with
that instruction.11 Again, an assessment of waiver is
dependent on all of the circumstances surrounding this
on-the-record discussion of the instruction at issue, and
counsel’s agreement thereto, but at a very minimum, a
focused discussion and agreement must have
occurred.12 This approach more closely resembles that
generally taken in the federal courts,13 which also permit
appellate review of forfeited claims but deny it to
waived claims.14 Although even a narrower implied
waiver rule rests on an inference, rather than actual
proof, that counsel consciously decided to abandon a
known claim, it is a much more reasonable inference15
and, I believe, one that appropriately accounts for the
varying interests of defendants, the state, courts and
society at large.16
Applying the narrower, pre-Kitchens analysis to the
facts of this case leads me to conclude that the defen-
dant’s instructional claim was not waived and, there-
fore, should be reviewed pursuant to State v. Golding,
supra, 213 Conn. 239–40. The defendant’s claim is that
the trial court’s instruction on identification was
improper, because it did not include certain factors that
a jury should consider when determining whether a
particular identification is reliable. The record indicates
that, following the trial court’s distribution of written
copies of its proposed charges, the court held an in-
chambers, off-the-record charging conference with
counsel. Thereafter, on the record, the trial court
described certain changes to the instructions that it
would be making. The trial court mentioned in particu-
lar that its proposed charge included an identification
instruction that included some factors to be considered,
without any elaboration as to those factors, then it
stated that it would be adding language to the effect
that it was the state’s burden to show that the defendant
was the person who had committed the crime.17 There
was no on-the-record discussion between the trial court
and counsel concerning the identification instruction.
After describing one other instruction, the trial court
asked counsel whether they had any further exceptions,
and both counsel stated that they did not.
Under these circumstances, I would not find a waiver
of the defendant’s instructional claim. First, there is no
copy of the trial court’s proposed instructions in the
record. Furthermore, although the record suggests that
the trial court and counsel discussed the identification
instruction in chambers, the extent of that discussion
and defense counsel’s participation therein is not appar-
ent. Finally, there is no substantive, on-the-record dis-
cussion of the instruction to evidence defense counsel’s
focus thereon. Rather, the trial court’s description of
the instruction, to which counsel thereafter simply
agreed, is quite general. In my view, this is not enough
to infer waiver.
Although I believe that the defendant’s request for
Golding review of his claim should not be foreclosed
due to waiver, I nevertheless conclude that the claim
necessarily fails for another reason. Specifically,
because the claim is instructional and not constitutional
in nature; see footnote 2 of this concurring opinion;
it cannot prevail under the second prong of Golding.
Accordingly, I would affirm the judgment of the Appel-
late Court based on different reasoning. See Small v.
Commissioner of Correction, 286 Conn. 707, 709, 946
A.2d 1203 (2008).
For the foregoing reasons, I respectfully concur.
1
Under State v. Golding, supra, 213 Conn. 239–40, a criminal defendant
can prevail on an unpreserved claim of constitutional error if all of the
following conditions are met: ‘‘(1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged constitutional violation
. . . exists and . . . deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reasonable doubt.’’ (Footnote
omitted.) See also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)
(modifying third prong of Golding).
2
See, e.g., State v. Cerilli, 222 Conn. 556, 567, 610 A.2d 1130 (1992) (claim
that court should have charged jury on issue of identification is one of
instructional, not constitutional error); see also State v. Inglis, 151 Conn.
App. 283, 289, 94 A.3d 1204 (‘‘[c]laims pertaining to the adequacy of a court’s
instructions on misidentification are not constitutional in nature’’), cert.
denied, 314 Conn. 920, 100 A.3d 851 (2014).
3
The difference between a waiver and a forfeiture is that a ‘‘forfeiture is
the failure to make the timely assertion of a right,’’ whereas a ‘‘waiver is
the intentional relinquishment or abandonment of a known right.’’ (Internal
quotation marks omitted.) United States v. Olano, 507 U.S. 725, 733, 113 S.
Ct. 1770, 123 L. Ed. 2d 508 (1993); see also Mozell v. Commissioner of
Correction, 291 Conn. 62, 70–71, 967 A.2d 41 (2009). Federal courts variously
have characterized forfeitures as ‘‘more inadvertent’’ than waivers; Freytag
v. Commissioner of Internal Revenue, 501 U.S. 868, 894 n.2, 111 S. Ct. 2631,
115 L. Ed. 2d 764 (1991) (Scalia, J, dissenting); as ‘‘accidental blunder[s]’’;
United States v. Hamilton, 499 F.3d 734, 735 (7th Cir. 2007), cert. denied,
552 U.S. 1129, 128 S. Ct. 951, 169 L. Ed. 2d 782 (2008); or as ‘‘matter[s]
of oversight . . . .’’ United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d
Cir. 1995).
4
‘‘When a party consents to or expresses satisfaction with an issue at
trial, claims arising from that issue are deemed waived and may not be
reviewed on appeal.’’ (Internal quotation marks omitted.) Mozell v. Commis-
sioner of Correction, 292 Conn. 62, 71, 967 A.2d 41 (2009). On the other
hand, as we acknowledged in State v. Kitchens, supra, 299 Conn. 474, mere
forfeiture ‘‘is not a bar to appellate review of an unpreserved Golding claim
but, rather, the precise reason why such review is permissible.’’
5
‘‘Under the two-pronged [test of Strickland v. Washington, 466 U.S. 668,
687–94, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], a defendant can only prevail
on an ineffective assistance of counsel claim if he proves that (1) counsel’s
performance was deficient, and (2) the deficient performance resulted in
actual prejudice. . . . To demonstrate deficient performance, a defendant
must show that counsel’s conduct fell below an objective standard of reason-
ableness for competent attorneys. . . . To demonstrate actual prejudice, a
defendant must show a reasonable probability that the outcome of the
proceeding would have been different but for counsel’s errors.’’ (Citations
omitted.) Davis v. Commissioner of Correction, 319 Conn. 548, 555, 126
A.3d 538 (2015).
6
This court has yet to clarify whether a claim that is deemed waived
pursuant to Kitchens nevertheless is subject to review on direct appeal
under the plain error doctrine. See State v. McClain, 319 Conn. 902, 122
A.3d 637 (2015) (This court granted certification to appeal, limited to the
following question: ‘‘Did the Appellate Court properly determine that an
implied waiver of a claim of instructional error that satisfies State v. Kitch-
ens, [supra, 299 Conn. 447], also forecloses plain error review?’’). Even in the
event that we ultimately hold that such review remains available, however, it
seems clear that, under the stringent standard governing claims of plain
error, defendants raising such claims would be less likely to prevail under
that framework than they would have been under the Golding standard.
See State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009) (explaining that
plain error doctrine ‘‘is an extraordinary remedy used by appellate courts
to rectify errors committed at trial that, although unpreserved, are of such
monumental proportion that they threaten to erode our system of justice
and work a serious and manifest injustice on the aggrieved party . . . [and]
is reserved for truly extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integrity of and public
confidence in the judicial proceedings’’ [internal quotation marks omitted]).
Moreover, novel claims or those requiring the overruling of existing jurispru-
dence also are unlikely to succeed under this rule, because ‘‘[i]t is axiomatic
that the trial court’s proper application of the law existing at the time
of trial cannot constitute reversible error under the plain error doctrine.’’
(Internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 374,
33 A.3d 239 (2012).
7
A search of Connecticut appellate jurisprudence postdating Kitchens,
encompassing a period of approximately five years, returns more than forty
cases applying its holding, with varying results.
8
For this reason, applying Kitchens is akin to playing a game of slow-
motion, jurisprudential ‘‘whack-a-mole.’’ The reviewing court considering
the defendant’s direct appeal may slap down an unpreserved instructional
claim as waived, and therefore unreviewable, today, only to have the claim
pop up anew in a habeas court elsewhere in the state in the future.
9
As this court discussed in State v. Kitchens, supra, 299 Conn. 477–80,
some cases have held claims of instructional error to have been waived
impliedly by conduct, even in the absence of an overt agreement to the
instruction at issue.
10
See State v. Hampton, 293 Conn. 435, 449–50, 978 A.2d 1089 (2009)
(defendant waived claim pertaining to unanimity aspect of sexual assault
charge when trial court twice highlighted unanimity issue in charge confer-
ences and defense counsel thereafter expressed approval of charge); State
v. Brewer, 283 Conn. 352, 357 n.7, 361, 927 A.2d 825 (2007) (defendant
waived claim pertaining to unanimous acquittal aspect of lesser included
offense instruction by expressly approving lesser included offense instruc-
tion after discussion regarding its necessity); State v. Fabricatore, 281 Conn.
469, 475, 481, 915 A.2d 872 (2007) (defendant waived claim pertaining to
duty to retreat aspect of self-defense instruction by, inter alia, expressing
satisfaction with self-defense instruction after discussion about it); State v.
Hankerson, 118 Conn. App. 380, 386–87, 389, 983 A.2d 898 (2009) (defendant
waived claim pertaining to causation aspect of felony murder instruction
by expressly approving felony murder instruction after discussion of it),
cert. denied, 298 Conn. 932, 10 A.3d 518 (2010); State v. Collazo, 115 Conn.
App. 752, 760, 974 A.2d 729 (2009) (defendant waived objection to instructing
jury that he could be convicted as either principal or accessory when that
approach was discussed and counsel agreed to it), cert. denied, 294 Conn.
929, 986 A.2d 1057 (2010); State v. Velez, 113 Conn. App. 347, 360–61, 966 A.2d
743 (defendant waived claim pertaining to supplemental intent instruction by
discussing instruction with court then agreeing twice to that instruction),
cert. denied, 291 Conn. 917, 970 A.2d 729 (2009); State v. Khuth, 111 Conn.
App. 184, 192–93, 958 A.2d 218 (defendant waived claim pertaining to defini-
tion of ‘‘aided,’’ when he specifically agreed with definition given by court
and objected to any alteration of it in response to jury query), cert. denied,
289 Conn. 957, 961 A.2d 423 (2008); State v. Diaz, 109 Conn. App. 519,
536–37, 952 A.2d 124 (defendant waived claim pertaining to instruction
addressing missing evidence when, following extended colloquy between
court and counsel, he affirmatively expressed consent to that instruction),
cert. denied, 289 Conn. 930, 958 A.2d 161 (2008); compare State v. Rodriguez-
Roman, 297 Conn. 66, 86–87, 3 A.3d 783 (2010) (defendant did not waive
claim pertaining to racketeering instruction when, following brief discussion,
counsel expressed satisfaction with conspiracy instruction); State v. Rey-
nolds, 118 Conn. App. 278, 307, 983 A.2d 874 (2009) (defendant did not
waive claim pertaining to consent instruction by assenting generally, or
specifically to other parts of charge), cert. denied, 294 Conn. 933, 987 A.2d
1029 (2010).
In light of the weight of this authority, I am not persuaded by the majority’s
contention that, ‘‘[e]ven before our decision in Kitchens, Connecticut law
provided that approval of the jury instructions by trial counsel acts as a
waiver of all potential jury instruction claims and not merely claims arising
from jury instructions that defense counsel specifically discussed on the
record at trial.’’ (Emphasis in original.) Specifically, neither of the two cases
cited as authority for that proposition appear to support it, because in
each case, the particular instruction at issue on appeal was discussed and
accepted by trial counsel on the record. See State v. Holness, 289 Conn.
535, 541–44, 958 A.2d 754 (2008) (defendant waived claim that he was cross-
examined in violation of his right to confrontation, using information from
statement of unavailable witness, by counsel’s requesting, then agreeing to,
cautionary instruction as remedy); see also State v. Brewer, supra, 283 Conn.
357 n.7 (defendant waived claim pertaining to unanimous acquittal aspect
of lesser included offense instruction by expressly approving instruction
after discussion regarding its necessity).
11
The nature and degree of focus may have varied, but, at a minimum,
there was an actual substantive discussion of the instruction at issue that
indicates that counsel truly was thinking about that instruction. In contrast,
a rote call and response exercise, pursuant to which a trial court reads
through a proposed jury charge on the record, pausing after each instruction
to secure counsel’s agreement therewith, would not result in an implied
waiver of claims of error as to each approved instruction, absent additional,
meaningful discussion of the contents of an instruction.
12
This is not to say that, in all cases in which a focused discussion occurs,
an implied waiver inevitably will be found. For example, the specific instruc-
tion at issue may be lengthy or complex, counsel may not have had much
time to review it, and the on-the-record discussion may have been limited
to an isolated aspect of the instruction. Under the totality of those circum-
stances, inferring waiver of a claim pertaining to an entirely different portion
of the instruction would not be reasonable.
13
See, e.g., United States v. Polouizzi, 564 F.3d 142, 148, 153 (2d Cir. 2009)
(defendant waived claim of error pertaining to definition of ‘‘wrongfulness’’
when he agreed to definition proposed by court); United States v. Sanders,
520 F.3d 699, 702 (7th Cir. 2008) (defendant waived claim pertaining to
adequacy of supplemental instruction by explicitly approving that instruc-
tion); compare United States v. Hamilton, 499 F.2d 734, 736 (7th Cir. 2007)
(defendant did not waive claim pertaining to intent instruction where judge
did not query defense counsel specifically about that instruction or ask
whether he agreed to it), cert. denied, 552 U.S. 1129, 128 S. Ct. 951, 169 L.
Ed. 2d 782 (2008).
14
In the federal courts, unpreserved claims of trial error that have not
been waived are reviewable pursuant to rule 52 (b) of the Federal Rules
of Criminal Procedure, which provides that ‘‘[a] plain error that affects
substantial rights may be considered even though it was not brought to
the [District] [C]ourt’s attention.’’ The United States Supreme Court has
articulated a four-pronged rule to determine whether rule 52 (b) review will
be afforded: ‘‘First, there must be an error or defect—some sort of [d]eviation
from a legal rule—that has not been intentionally relinquished or aban-
doned, i.e., affirmatively waived, by the appellant. . . . Second, the legal
error must be clear or obvious, rather than subject to reasonable dispute.
. . . Third, the error must have affected the appellant’s substantial rights
. . . . Fourth . . . if the above three prongs are satisfied, the court of
appeals has the discretion to remedy the error—discretion which ought to
be exercised only if the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) Puckett v. United States, 556
U.S. 129, 135, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009). As the foregoing
test indicates, federal plain error review differs from Connecticut’s highly
restrictive plain error doctrine; see footnote 6 of this concurring opinion;
and is more closely analogous to this state’s Golding review.
I disagree with the majority that it is appropriate to have fewer jury
instructional claims reviewable under our state waiver rule than under
federal waiver doctrine, because relief for a proven violation is more auto-
matic under Golding than under federal plain error review, which provides
for discretionary relief. It is axiomatic that Golding review is limited to
claims of constitutional magnitude, whereas federal plain error review is
available for nonconstitutional claims as well. Accordingly, it stands to
reason that more automatic relief should follow under Golding, because it
necessarily will apply to a smaller universe of more egregious claims.
15
Our case law permits juries to draw reasonable and logical inferences
from the evidence presented at trial, and disallows them from engaging in
speculation and conjecture. State v. Morrill, 193 Conn. 602, 608, 478 A.2d
994 (1984). I believe that appellate courts should operate within the same
parameters. It does not reasonably and logically follow from defense coun-
sel’s global review of a set of jury instructions, and general consent thereto,
that he or she was aware of all potential flaws in the instructions and decided
to disregard them. Conversely, when defense counsel’s attention is drawn
to a specific instruction, and he or she thereafter expresses satisfaction
with that instruction, an inference that counsel agreed to the instruction,
despite knowledge of some irregularity in it, is a much more reasonable
inference.
Relatedly, I disagree with the majority that implying a broad waiver of
claims of instructional error, both known and unknown, pursuant to Kitch-
ens is analogous to a defendant’s abandonment of various claims in connec-
tion with his or her waiver of other constitutional rights, specifically, the
rights to a trial, counsel or a probable cause hearing. In each of the latter
three instances, a criminal defendant overtly and consciously chooses to
relinquish claims, known or unknown, in exchange for something he or
she values—a favorable plea, the right to self-representation or a strategic
advantage, respectively. This is unquestionably true, notwithstanding the
majority’s assessment of the benefit received, in the case of a waiver of
counsel, as negligible, or its focus on what a defendant subject to a Kitchens
waiver retains rather than on that which he or she has forfeited. In contrast,
with an implied waiver pursuant to Kitchens, the defendant is presumed,
by operation of law, to have abandoned a valuable right to appeal, not
in exchange for something, but by merely agreeing to the proposed jury
instructions. In my view, when a waiver is to be implied from circumstances
and is not the result of any conscious quid pro quo, the scope of that waiver
should be restrictive rather than broad.
16
Conceivably, in a particular case, counsel may agree with a specific
jury instruction, after discussion of that instruction with the trial court, yet
still be unaware of a defect therein. In such an instance, a claim relating
to that defect, although deemed waived on appeal, in actuality was only
forfeited. Even under those circumstances, however, I do not believe that
it is fundamentally unfair to deny direct appellate review of the claim pursu-
ant to Golding, particularly in light of the competing consideration of
avoiding an ambuscade of the trial court and opposing counsel. As we
explained in Kitchens, there are features unique to jury instructions that
justify holding counsel to a higher standard of accountability for failing to
preserve claims of error. See State v. Kitchens, supra, 299 Conn. 482–85.
Specifically, jury instructions are carefully formulated outside of the rush
of trial pursuant to the rules of practice that afford counsel a large degree
of participation in a structured process. The purpose of these rules is to
detect error at the earliest possible juncture, and the threat of an implied
waiver of an instructional claim on appeal, at least in narrowly defined
circumstances, provides an appropriate incentive for the opportunity to be
taken seriously. See id., 495–96.
The detection of error at trial, without the necessity of an appeal, is the
most desirable outcome for purposes of both fairness to defendants and
the efficient operation of the court system. ‘‘Waiver is based on the principle
that [c]ontemporaneous objection gives the trial court the opportunity to
correct its own errors and thereby avoids unnecessary delays through
appeals, reversals, and new trials.’’ (Internal quotation marks omitted.) In
re Eternity E., Docket Nos. 01-2009, 01-2010 WL 131822, *3 (Wis. App.
October 25, 2001) (decision without published opinion, 248 Wis. 2d 985, 638
N.W.2d 395 [2001]), review denied, 250 Wis. 2d 559, 643 N.W.2d 96 (2002).
‘‘Moreover, [a] waiver rule encourages attorneys to diligently prepare their
cases for trial . . . and discourages the strategy of building in errors to
ensure a new trial in the event of a guilty verdict.’’ (Citation omitted.) State
v. Lucas, Docket No. 92-0477-CR, 1993 WL 322517, *6 (Wis. App. August 26,
1993) (decision without published opinion, 178 Wis. 2d 875, 506 N.W.2d 426
[1993]). In short, requiring claims of error first to have been presented to
a trial court ‘‘reflects a policy of encouraging the efficient use of judicial
resources.’’ Ericson v. King, Docket No. 60327-2-I, *2 (Wn. App. August 4,
2008) (decision without published opinion, 146 Wash. App. 1023 [2008]).
17
The trial court stated: ‘‘With respect to identification, I did give an
identification section in the charge which outlines on page 14 what the jury
must be satisfied in making the identification including some of the factors
they can consider in this evidence. However, I’m going to expand that
language to include the language to the effect that in every criminal prosecu-
tion, it is the state’s responsibility to show that the defendant is the person
who committed the offense and if they are not satisfied of that evidence
then they cannot find the defendant guilty of any particular offense. I’m
going to highlight that because obviously that is an issue in this case.’’