State v. Bellamy

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 STATE v. BELLAMY—SECOND CONCURRENCE

PALMER, J., with whom McDONALD, J., joins, con-
curring in the judgment. In State v. Kitchens, 299 Conn.
447, 10 A.3d 942 (2011), a narrow majority of this court
concluded that, when a trial court has afforded defense
counsel a meaningful opportunity to review its pro-
posed jury instructions, and when, in the course of
an on-the-record charging conference, defense counsel
agrees with or simply acquiesces in1 those instructions,
an appellate court will not later review an unpreserved
claim that the instructions violated the constitutional
rights of the defendant. See id., 482–83. The stated ratio-
nale for carving out this unique exception to Golding2
review was that a defense counsel who acquiesces in
the proposed instructions may be deemed to have
implicitly or impliedly waived, on behalf of the defen-
dant, any objections thereto. See id., 483.
Constrained by centuries of precedent, the majority
in Kitchens was forced to acknowledge that a person
executes a waiver only when he intentionally and volun-
tarily chooses to relinquish a known right. Id., 469. This
same standard applies regardless of whether the waiver
is implied (by conduct) or express (verbal), and, indeed,
the state bears an especially high burden of proof when
seeking to establish that a criminal defendant has
waived by implication one of his fundamental constitu-
tional rights. See part I B of this opinion. In seeking to
justify its new rule, then, the Kitchens majority faced
a conundrum: on what basis can we conclude that any
defense counsel who merely acquiesces in an incorrect
jury instruction has knowingly and voluntarily chosen
to waive her client’s right to a properly instructed jury,
when it is at least as likely that, in the ‘‘the hurried and
. . . hectic process of trial’’; People v. Ladas, 12 Ill. 2d
290, 294, 146 N.E.2d 57 (1957); she simply failed to
identify the defect later claimed on appeal?
Kitchens’ initial solution to this conundrum was to
take refuge in what the majority in that case conceded
was a pure ‘‘legal fiction,’’ namely, the presumption that
a defense counsel who reviews and then acquiesces in
the trial court’s proposed instructions has considered
and declined to raise every potential objection to every
part of the instructions. (Internal quotation marks omit-
ted.) State v. Kitchens, supra, 299 Conn. 487 n.25. This
legal fiction justification for the Kitchens rule was illogi-
cal and unfounded from the start, and, to their credit,
both the state and the majority in the present case now
appear to have disavowed it. In its stead, however, they
have set an equally implausible rationale, namely, that
each defense counsel, upon reviewing the trial court’s
proposed jury charge, knowingly and voluntarily waives
her client’s procedural right to later challenge those
instructions on appeal.
 Unfortunately, this new theory fares no better than
Kitchens’ original legal fiction theory. There is a strong
presumption against a finding of waiver, especially with
respect to the constitutional rights of criminal defen-
dants, and waiver—whether substantive or proce-
dural—can be found only when there is unambiguous
evidence that the defendant, with full understanding of
his rights, actually intends to waive them. Each of these
principles is black letter law, and each is deeply and
firmly rooted in the law of this state. The Kitchens rule
violates all of them. To jettison these well established
rules, merely to achieve a desired policy outcome, is
to place at risk not only our Golding jurisprudence,
and the fundamental rights of criminal defendants, but
all of the other branches of the law in which the concept
of waiver plays a significant role.
Rather than adding epicycle upon epicycle in a futile
attempt to salvage the unprecedented and unnecessary
Kitchens rule, we should admit the obvious. Descrip-
tively, mere acquiescence, without something more,
simply does not meet the high standard our law imposes
for establishing a waiver of a defendant’s constitutional
rights. Normatively, the policy arguments that appear
to animate these continued efforts to undercut our well
established Golding jurisprudence are untested and
unpersuasive. I therefore agree with the defendant,
Brandon Montrell Bellamy, that Kitchens should be
overruled as a failed experiment and that we should
return to our pre-Kitchens jurisprudence governing the
reviewability of unpreserved claims. See part I of this
opinion. Specifically, an unpreserved claim that instruc-
tional error of constitutional magnitude has occurred
should be unreviewable under Golding only when (1)
defense counsel induced or invited the error, or (2) it
clearly can be inferred that counsel—or the defen-
dant—actually was aware of the alleged defect in the
instruction but chose for strategic or other reasons not
to object (true waiver).
Although I conclude that the defendant’s unpreserved
claim of instructional error was not waived under the
proper legal standard, I do agree with the state that
the claim is unreviewable under Golding because the
alleged error is not of constitutional magnitude. See
part II of this opinion. For this reason, I concur in
the judgment.
I
KITCHENS SHOULD BE OVERRULED
Although the court in Kitchens was not always clear
or precise in its use of the term ‘‘waiver,’’ I understand
the Kitchens rule—that the defendant implicitly waives
the right to raise unpreserved claims of instructional
error on appeal—to encompass both a descriptive ele-
ment (it purports to describe the defendant’s actual
conduct) and a normative element (it tells us what the
legal consequences of that conduct should be). See 28
Am. Jur. 2d 503–504, Estoppel and Waiver § 37 (2011).
Descriptively, the court in Kitchens posited that acqui-
escence under the conditions outlined in that case sup-
ports an inference that defense counsel did in fact
knowingly and voluntarily relinquish any and all chal-
lenges to the proposed instructions. See State v. Kitch-
ens, supra, 299 Conn. 483–85. Normatively, the court
concluded that, for various reasons of public policy, it
is desirable and appropriate to treat such challenges as
waived and unreviewable on appeal. See id., 486–98.
Both of these conclusions are indefensible.
In this part of the opinion, I explain the three funda-
mental flaws in the Kitchens rule, both as originally
rationalized in Kitchens and as reconstituted by the
state in the present case: (1) it represents a dramatic
departure from our prior Golding jurisprudence; see
part I A of this opinion; (2) descriptively, it is predicated
on an illogical and fictitious account of what actually
happens when defense counsel acquiesces in the trial
court’s jury instructions; see part I B of this opinion;
and (3) normatively, it carves out an unwarranted
exception to Golding review for instructional errors on
the basis of untested and unpersuasive policy argu-
ments. See part I C of this opinion. I also explain how
the Kitchens rule easily can be defeated; see part I D
of this opinion; and why I am not persuaded by the
state’s argument that stare decisis requires that we
retain the Kitchens rule despite these serious defects.
See part I E of this opinion.
A
Kitchens Overturned and Confused
Our Golding Jurisprudence
In Kitchens, the stated goal of the majority was to
clarify Connecticut law on implied waiver, particularly
with respect to jury instruction challenges. State v.
Kitchens, supra, 299 Conn. 474. Unfortunately, by mis-
construing our Golding jurisprudence in order to reach
a desired policy outcome, Kitchens failed to achieve
that goal, and the majority in the present case has simply
made matters worse. In addition, muddled and inconsis-
tent use of key terminology, both in the present case and
in Kitchens, has left reviewing courts without adequate
guidance when addressing such claims.
1
Kitchens Misstated and Departed from
Our Golding Jurisprudence
I recognize that the question of whether a defendant
has waived his constitutional rights hinges to some
degree on the unique facts and circumstances of any
given case. Nevertheless, our cases addressing the
reviewability of unpreserved claims of instructional
error divide fairly readily into three general categories.
 First, at one end of the spectrum, are those cases
in which defense counsel sits silently by as the court
instructs the jury, with counsel giving no indication
whether she objects to or agrees with the court’s
instructions. See, e.g., State v. Kurvin, 186 Conn. 555,
557, 563–64, 442 A.2d 1327 (1982). Although run-of-the-
mill claims of instructional error are forfeited if not
timely raised at trial and, therefore, are not reviewable
on appeal, there is general agreement that such conduct
by counsel does not constitute an implied waiver of
unpreserved claims of constitutional error.3 See State
v. Kitchens, supra, 299 Conn. 483 n.23. Accordingly,
such claims are reviewable on appeal if the Golding
requirements are otherwise satisfied. See id.
Second, at the other end of the spectrum, is a broad
class of cases in which something in the record indi-
cates either that defense counsel has knowingly and
voluntarily waived, on behalf of the defendant, the par-
ticular objection at issue on appeal (true waiver), or
that she has induced or invited the instructional error
that is subsequently challenged on appeal. We have
found true waiver both when defense counsel expressly
waives the objection at issue,4 and in various situations
in which the only reasonable inference is that counsel
actually intends to waive the objection (implied
waiver). This court or the Appellate Court has found
implied waiver, for instance, when it is clear from the
record that defense counsel actually was aware of the
alleged instructional defect but declined to object or
agreed to a curative instruction and thus impliedly
waived any objection,5 and also when the trial court
record strongly suggests that defense counsel declined
to object to a particular instruction for identifiable stra-
tegic reasons.6 Similarly, we have found induced or
invited error under three circumstances: (1) when coun-
sel drafts for the court the instructions later challenged
on appeal;7 (2) requests that the trial court draft or
reiterate the challenged instruction;8 or (3) adopts the
challenged instruction, or the legal principle on which
it is based, as a component of the defense theory.9
Although the majority in Kitchens contended that we
did not rely on the concepts of induced or invited error
in cases of the latter two types; see id., 469–70, 472;
that clearly is not true. Several of the cited cases, while
also using the general term ‘‘waiver,’’ expressly refer
to the alleged error as one that was induced or invited
by the defendant. See, e.g., State v. Fabricatore, 281
Conn. 469, 481–83 and n.18, 915 A.2d 872 (2007); State
v. Cooper, 38 Conn. App. 661, 670, 664 A.2d 773, cert.
denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied,
517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996);
see also State v. Scognamiglio, 202 Conn. 18, 25, 519
A.2d 607 (1987). Moreover, in each cited case, we relied
on the fact that counsel not only declined to object to
the instruction at issue, but also actively requested the
sort of instruction later challenged on appeal or some-
how adopted the principle of law on which it was predi-
cated. See footnotes 8 and 9 of this opinion. Indeed,
legal scholars have long classified under the rubric of
induced error not only cases such as State v. Coward,
292 Conn. 296, 305, 972 A.2d 691 (2009), and State v.
Cruz, 269 Conn. 97, 105, 107, 848 A.2d 445 (2004), in
which the appellant drafts or requests the actual chal-
lenged instruction, but also cases in which the appellant
either requests that the court give an instruction of that
sort; see W. Maltbie, Connecticut Appellate Procedure
in the Supreme Court of Errors of Connecticut (2d Ed.
1957) § 96, p. 117 and n.16; or invokes the contested
rule of law; see id., § 40, pp. 45–46; see also State v.
Akande, 299 Conn. 551, 560, 11 A.3d 140 (2011) (implic-
itly recognizing that State v. Foster, 293 Conn. 327, 977
A.2d 199 [2009], was case of induced error).
As to this second category of cases, I am in complete
agreement with the majority that, if defense counsel
either (1) induces or invites the claimed error, or (2)
truly and unequivocally waives any objection, with the
possible exception of plain error, the claim is not
reviewable on appeal, even if the error is of constitu-
tional magnitude. The rationale for the rule that a party
who induces or invites an error cannot be heard on
appeal to complain about that error is essentially one
of unclean hands: ‘‘[t]o allow [a] defendant to seek
reversal [after] his trial strategy has failed would
amount to allowing him to induce potentially harmful
error, and then ambush the state [and the trial court]
with that claim on appeal.’’ (Internal quotation marks
omitted.) State v. Cruz, supra, 269 Conn. 106; see also
Gaffney v. Board of Trustees of the Orland Fire Protec-
tion District, 969 N.E.2d 359, 368 (Ill. 2012) (‘‘it would
be manifestly unfair to grant a party relief based on
error introduced into the proceedings by that party’’);
Tenbusch v. Linn County, 172 Or. App. 172, 177 n.6,
18 P.3d 419 (induced error doctrine guards against stra-
tegic gaming of judicial system), review denied, 332 Or.
305, 27 P.3d 1045 (2001).
The doctrine of waiver, by contrast, is animated
largely by the principle of respect for autonomy.10 As
one scholar has explained, ‘‘once the defendant has
made a free and informed decision to forgo his constitu-
tional defenses, he may constitutionally be held to the
consequences of his election.’’ P. Westen, ‘‘Away from
Waiver: A Rationale for the Forfeiture of Constitutional
Rights in Criminal Procedure,’’ 75 Mich. L. Rev. 1214,
1254–55 (1977). In addition, the principle of judicial
estoppel11 underlies the doctrines of both waiver and
induced error. See S.H.V.C., Inc. v. Roy, 188 Conn. 503,
510, 450 A.2d 351 (1982). By contrast, the rationales on
which the state relies—the finality of criminal convic-
tions, fairness to the trial court and the state, and incen-
tivizing diligence by defense counsel at a time when
errors can still be corrected—apply equally to types of
claims other than instructional errors. In Golding, we
made a determination that those considerations are
outweighed by the principle that a criminal defendant,
at risk of life and liberty, should not be wrongly deprived
of his fundamental constitutional rights due to the inad-
vertence of defense counsel. See State v. Brunetti, 279
Conn. 39, 55, 901 A.2d 1 (2006), cert. denied, 549 U.S.
1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007); see also
part I C of this opinion.
The only category of cases over which I disagree
with the majority with respect to the reviewability of
unpreserved claims is the third category of cases,
namely, those in which defense counsel vocalizes that
she has no objection to, is satisfied with, or agrees to
the court’s instructions, but does not otherwise waive
her client’s right to object or induce the claimed error
by drafting, requesting, or adopting the challenged
instruction. Prior to Kitchens, we consistently held that
claims of this sort are reviewable on appeal if they
otherwise satisfy the four Golding requirements.12 I am
not aware of any pre-Kitchens case—and the majority
is unable to cite any—in which this court presumed
waiver solely on the basis of defense counsel’s acquies-
cence in the trial court’s draft instructions. Although
the majority in Kitchens maintained that we found
waiver by acquiescence in cases such as State v. Hamp-
ton, 293 Conn. 435, 450, 988 A.2d 167 (2009), State v.
Foster, supra, 293 Conn. 342, State v. Holness, 289 Conn.
535, 542, 958 A.2d 754 (2008), State v. Brewer, 283 Conn.
352, 353, 927 A.2d 825 (2007), and State v. Fabricatore,
supra, 281 Conn. 481; see State v. Kitchens, supra, 299
Conn. 471–72; in reality, each of those cases featured
significant additional indicia of either true waiver or
induced error.13 See State v. Ebron, 292 Conn. 656, 680–
82, 975 A.2d 17 (2009), overruled in part on other
grounds by State v. Kitchens, 299 Conn. 447, 10 A.3d
942 (2011). The Kitchens rule thus represents a novel
and, as I explain more fully hereinafter; see part I C of
this opinion; wholly unwarranted departure from our
well established Golding jurisprudence with respect to
this third category of instructional error cases.14
2
Kitchens Failed To Provide Clear Guidance
One flaw in Kitchens, then, is that the majority in
that case, like the majority in the present case, failed to
properly distinguish between (1) cases in which defense
counsel merely acquiesced in the trial court’s proposed
jury charge, and in which we traditionally found unpre-
served constitutional claims reviewable under Golding,
and (2) cases in which counsel actively induced or
knowingly and voluntarily waived objections to the
charge at issue, and in which we found unpreserved
claims unreviewable under the third prong of Golding.
A second, related flaw is that the majority in Kitchens
further muddled these distinctions and failed to provide
the reviewing court with clear guidance by using key
terminology in a misleading and inconsistent manner.
Perhaps the best (or worst) example of this is the court’s
inconsistent use of the term ‘‘acquiescence.’’
Descriptively, the majority in Kitchens described as
acquiescence everything from defense counsel’s sitting
silently by and failing to object to the court’s jury
charge, to defense counsel’s expression of affirmative
satisfaction or agreement with the charge. Compare,
e.g., State v. Kitchens, supra, 299 Conn. 476 n.20 (equat-
ing acquiescence with mere awareness of and failure
to object to instruction at issue), with id., 478–79 n.21
(referring to counsel’s expressed satisfaction with
instructions as acquiescence); see also id., 466, 480,
482 (referring to conduct in Kitchens as example of
acquiescence). Of greater concern, Kitchens provided
diametrically opposed guidance as to the legal conse-
quences that follow from a finding that defense counsel
acquiesced in the trial court’s proposed jury instruc-
tions. Compare id., 483 n.23 (‘‘[t]he standard that we
describe would not allow waiver to be presumed . . .
from defense counsel’s mere acquiescence in, or failure
to object to, the jury instructions’’), with id., 494–95 n.27
(acquiescence is presumed to be tactical and, therefore,
results in waiver).
Similarly, although the court in Kitchens, and the
majority in the present case, repeatedly reassures us
that defense counsel implicitly waives jury instruction
challenges only by ‘‘affirmatively’’ accepting the trial
court’s proposed instructions; id., 482–83; see id., 496;
see also footnote 9 of the majority opinion; in the same
breath, the majority cautions that counsel’s mere acqui-
escence will result in waiver, even though that acquies-
cence, by definition, entails passive rather than affir-
mative acceptance. See Black’s Law Dictionary (10th
Ed. 2014) p. 27 (defining ‘‘acquiesce’’ as ‘‘[t]o accept
tacitly or passively; to give implied consent’’); Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2003) p. 11
(defining ‘‘acquiesce’’ as ‘‘to accept, comply or submit
tacitly or passively’’); see also Aguilar Gonzalez v.
Mukasey, 534 F.3d 1204, 1209 (9th Cir. 2008) (‘‘[a]cquies-
cence is not an affirmative act’’); State v. Devalda, 306
Conn. 494, 508, 50 A.3d 882 (2012) (‘‘acquiescence . . .
commonly is understood to be a form of consent typi-
fied by passivity or lack of protest, rather than active
agreement’’ [emphasis omitted; footnote omitted]).
If the majority is committed to retaining the Kitchens
rule, then it should use this second opportunity to clar-
ify our waiver jurisprudence to provide clearer guidance
as to what sorts of conduct by defense counsel will and
will not be deemed to constitute an implied waiver.
Moreover, the majority should have the courage of its
convictions with respect to Kitchens. If waiver is to be
found only in cases in which there is an actual affirma-
tive assent, then the majority should clarify that the
numerous post-Kitchens cases in which defense coun-
sel simply passively acquiesced in the trial court’s jury
instructions were wrongly decided and that the appel-
lants in those cases were entitled to have their claims
reviewed. See, e.g., State v. Akande, supra, 299 Conn.
559, 562 (finding waiver when defense counsel, given
opportunity to object to proposed instructions, merely
replied, ‘‘ ‘[n]o, Your Honor’ ’’); State v. Brown, 153
Conn. App. 507, 534, 101 A.3d 375 (2014) (finding waiver
merely because ‘‘[a]t no time during the charging confer-
ence did [defense] counsel challenge the court’s instruc-
tions on the elements of conspiracy’’), cert. granted,
319 Conn. 901, 122 A.3d 636 (2015); State v. Reddick,
153 Conn. App. 69, 82, 100 A.3d 439 (finding waiver
when defense counsel merely ‘‘stated that he had no
further objection to the draft instructions’’), cert. dis-
missed, 314 Conn. 934, 102 A.3d 85 (2014), and cert.
denied, 315 Conn. 904, 104 A.3d 757 (2014); State v. Lee,
138 Conn. App. 420, 450, 451, 52 A.3d 736 (2012) (finding
waiver when defense counsel merely indicated that
there were no disagreements as to charge and ‘‘voiced
no other exceptions or concerns’’), cert. granted, 321
Conn. 911, 136 A.3d 644 (2016).15 On the other hand, if
mere acquiescence is now to be the stuff of waiver,
then the majority should stop repeating the affirmative
assent language, which gives the misleading impression
that waiver will be implied only when counsel expresses
actual agreement with the trial court’s instructions. Call
a fig a fig, and tell both the bar and the public how low
the standard now is for finding that counsel has, without
ever actually agreeing to the court’s instructions, extin-
guished a client’s right to raise constitutional claims
on appeal.16
B
Kitchens Improperly Conflated
Acquiescence and Waiver
In part I A of this opinion, I explained how the court
in Kitchens misread this court’s Golding jurisprudence
and how, prior to Kitchens, we treated unpreserved
claims of instructional error as forfeited but not waived
when defense counsel merely acquiesced in a trial
court’s draft jury charge. In this part of the opinion, I
explain why the majority in Kitchens erred in deviating
from that precedent because mere acquiescence, while
possibly supporting a finding of forfeiture, will never
satisfy the well established standards for an implied
waiver of fundamental constitutional rights. In its pres-
ent attempt to shore up the obvious flaws in Kitchens’
analysis of the issue, the state has succeeded only in
replacing a fiction with a fallacy.
1
Shortcomings of the Original
Kitchens Rationale
In Kitchens, the state argued that a defense counsel
who, following a meaningful opportunity to review the
trial court’s proposed jury charge, fails to object that
the charge is deficient in some particular way, should
be deemed to have done so for strategic reasons and,
therefore, to have impliedly waived that objection. State
v. Kitchens, Conn. Supreme Court Records & Briefs,
March Term, 2010, State’s Brief pp. 21–22. The majority
in Kitchens largely adopted both the state’s proposed
rule and the stated rationale for the rule, holding that,
‘‘when the trial court provides counsel with a copy
of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from
counsel regarding 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
implicitly the constitutional right to challenge the
instructions on direct appeal.’’ (Emphasis added.) State
v. Kitchens, supra, 299 Conn. 482–83. In other words,
as the majority in Kitchens repeatedly emphasized, the
Kitchens rule was predicated on the theory that compe-
tent defense counsel would have been aware of any
and all potentially meritorious constitutional objections
to the court’s proposed charge and, therefore, that coun-
sel’s choice not to object must have been intentional
and strategic. See, e.g., id., 469 (counsel is assumed to
have intended natural consequences of failure to raise
known claim); id., 470 (theory of implied waiver is predi-
cated on assumption that failure to raise claim was
result of trial strategy); id., 482 (Kitchens discussed as
example of case in which court ‘‘could infer counsel’s
knowledge of the alleged impropriety’’); id., 491–92
(competent counsel may be presumed to have been
familiar with governing law and to have exercised pro-
fessional judgment when waiving potential claims); id.,
495 n.27 (‘‘we build on the presumption of competent
counsel by presuming that counsel would have identi-
fied the instructional error if given a proper and mean-
ingful opportunity to review the instructions’’). The
court summarized the rationale underlying the Kitchens
rule as follows: ‘‘[I]f counsel had sufficient notice of
the jury instructions and was aware of their content,
an inference, or assumption of fact . . . can be made
that counsel also was aware of any potential constitu-
tional defect that the instructions may have contained
and, with full understanding of that defect, opted to
refrain from objecting for strategic reasons.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Id., 487 n.25. Notably, although the cited pas-
sage suggests that the Kitchens rule is based on a fac-
tual inference17 that counsel is aware of all potential
objections, the majority in Kitchens ultimately acknow-
ledged that this so-called inference is nothing more than
a ‘‘legal fiction.’’ (Internal quotation marks omitted.) Id.
The obvious structural cracks in Kitchens’ original
foundation—both conceptual and practical—have been
widely recognized.18 The term ‘‘waiver’’ has almost uni-
versally been defined as the ‘‘voluntary surrender or
relinquishment of some known right,’’ or some equiva-
lent expression. 28 Am. Jur. 2d, supra, § 35, p. 501; see
also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 82 L. Ed. 1461 (1938) (‘‘a waiver is ordinarily an
intentional relinquishment of abandonment of a known
right or privilege’’); cf. State v. Kitchens, supra, 299
Conn. 483. Conceptually, the notion that a factual infer-
ence that there has been a knowing and voluntary relin-
quishment of a fundamental constitutional right can be
predicated on a legal fiction is at best an oxymoron
and at worst a dangerous absurdity. It would be ludi-
crous, for example, in the closely related context of
medical informed consent, to suggest that a physician
who performed elective surgery without informing a
patient of the various risks involved could justify the
omission by reference to a legal fiction, such as that
any patient who previously worked in the health-care
sector can be presumed already to have such knowl-
edge. Cf. Logan v. Greenwich Hospital Assn., 191 Conn.
282, 294–95, 465 A.2d 294 (1983). It makes even less
sense to impute to a criminal defendant knowledge of
the myriad challenges that might be brought against a
proposed set of jury instructions, as would be required
to execute a valid waiver, when even his attorney’s
awareness of such claims is admittedly fictitious.19
The practical fallacies in the original justification for
the Kitchens rule are equally apparent. When there is
nothing in the record to indicate either that defense
counsel was aware of the constitutional claim at issue or
that counsel intentionally opted to forgo every possible
objection to the defective instruction, it is unrealistic
to infer, as Kitchens requires, that counsel had knowl-
edge of the claim and intentionally abandoned it. See
State v. Kitchens, supra, 299 Conn. 538–39 (Palmer,
J., concurring). ‘‘[B]ecause waiver is the intentional
relinquishment or abandonment of a known right . . .
Kitchens requires us to presume, first, that counsel
thought of every possible claim, from the most meritori-
ous to the most frivolous, and everything in between,
and, second, that, upon due consideration of each and
every one of those claims, counsel decided to abandon
them all, presumably for strategic reasons. Because it
is obviously impossible for any defense attorney, or any
team of defense attorneys, to conceive of all potential
claims, whether meritorious or not, it is clear that Kitch-
ens is predicated on a palpably unrealistic assumption.’’
(Citation omitted; emphasis omitted.) State v. Davis,
311 Conn. 468, 497, 88 A.3d 445 (2014) (Palmer, J.,
concurring); see also id. (explaining that, in reality,
‘‘competent defense attorneys invariably raise any and
all [potentially meritorious] claims of which they are
aware’’).
The defects in the original justification for Kitchens,
then, are twofold. Kitchens relies on a fiction when the
law calls for truth. And the fiction is a flimsy one at that.
 2
Shortcomings of the New Kitchens Rationale
Apparently recognizing these flaws in Kitchens’ foun-
dation, both the state and the majority have now jetti-
soned the legal fiction rationale. In the present case,
they take pains to disavow Kitchens’ premise that
defense counsel, merely having reviewed and acqui-
esced in a proposed jury charge, may be presumed to
have considered and rejected every potential chal-
lenge thereto.
Instead, to replace the missing cornerstone, the state
now offers—and the majority embraces—a new justifi-
cation for Kitchens’ implied waiver theory. It goes as
follows: ‘‘[W]hen the trial court asks counsel to make
an informed and binding judgment regarding whether
to accept the jury instructions and counsel acquiesces,
counsel waives the procedural right to object to the
instructions on any of the multitude of possible grounds
that counsel might presently be aware of or later per-
ceive.’’ (Emphasis added.) In other words, Kitchens
now rests on the theory that defense counsel, by acqui-
escing in or assenting to the court’s jury charge, know-
ingly and voluntarily relinquishes not a set of specific
challenges or objections thereto but, rather, the proce-
dural right of the defendant to later complain about
any aspect of the charge. In the remainder of this part
of this opinion, I explain why the state’s new rationale
fares no better than the old one, and why it does not
warrant a departure from our pre-Kitchens jurispru-
dence.
The state contends that its new theory does not, in
fact, break any new ground but simply applies the pre-
existing doctrine that the ‘‘waiver of the right to exercise
a right precludes [the] later assertion of any and all
claims bundled within that right.’’ The state argues that
this sort of procedural waiver is well established, both
in the Golding context and with respect to the waiver
of other constitutional rights. The argument fails on
many levels.
I begin by observing that the state’s new theory fails
to draw the proper parallel between other constitutional
rights and the one at issue in Kitchens. When a defen-
dant waives freedoms such as the right to counsel or
the right to trial by jury, he is waiving just that. What
he surrenders, fundamentally, is the assistance of an
attorney, or the presence of a jury to decide his fate.
That he may later be barred from complaining on appeal
that he was deprived of his sixth amendment rights is
a consequence of that waiver, but the ability to appeal
per se is not the right that is waived. In Kitchens cases,
by the same token, what the defendant allegedly waives
is not a general procedural right to object or appeal
but, rather, the due process right to be tried by a jury
that has been properly instructed on the essential ele-
ments of the charged crimes, the state’s burden of proof,
and other constitutionally significant points of law. See,
e.g., State v. Avila, 223 Conn. 595, 603, 613 A.2d 731
(1992) (right to properly instructed jury is guaranteed
by due process clauses of fourteenth amendment to
United States constitution and article first, § 8, of Con-
necticut constitution); see also State v. Golding, 213
Conn. 233, 241, 567 A.2d 823 (1989) (jury that is properly
instructed as to essential elements of charged crimes
is necessary to ensure fair trial). What the state needs
to demonstrate, then, is that, by acquiescing in the trial
court’s instructions, a defendant, through counsel,
knowingly and voluntarily relinquishes the right to a
properly instructed jury, with the understanding that
one consequence of that waiver may be the inability
to challenge on appeal any subsequently discovered
defects in the instructions. As I discuss hereinafter,
the circumstances under which any competent attorney
would knowingly and voluntarily make such a waiver,
or advise a client to do so, are extremely limited.
Whereas defense counsel might waive a particular
instructional challenge for strategic or other reasons,
it is virtually inconceivable that she would freely choose
to relinquish a defendant’s general right to enforce his
right to a properly instructed jury.
Before I discuss the specific flaws in the state’s new
macro waiver theory, I review the well established prin-
ciples that govern the law of waiver. ‘‘The party alleged
to have waived a right must have had both knowledge
of the existing right and the intention of forgoing it.’’
Black’s Law Dictionary, supra, p. 1813 (defining
‘‘waiver’’); see also State v. Kitchens, supra, 299 Conn.
469. With respect to the knowledge element, ‘‘[w]aiver
arises from an affirmative act and is consensual. It
involves the idea of assent, and assent is an act of
understanding.’’ (Footnote omitted.) 28 Am. Jur. 2d,
supra, § 183, p. 648; see also State v. Kitchens, supra,
469. With respect to intent, because ‘‘a waiver is the
intentional abandonment or relinquishment of a known
right . . . an intent to waive must be shown by
unequivocal acts or conduct that [is] inconsistent with
any intention other than to waive . . . .’’ (Footnote
omitted.) 28 Am. Jur. 2d, supra, § 35, pp. 501–502; see
also State v. Johnson, 316 Conn. 45, 55–56, 111 A.3d
436 (2015); Gardner v. New London, 63 Conn. 267, 277,
28 A. 42 (1893); Zenon v. R.E. Yeagher Management
Corp., 57 Conn. App. 316, 327, 748 A.2d 900 (2000).
Courts should find a waiver, then, only in the ‘‘voluntary
abandonment or surrender by a capable person of a
right known to him or her to exist with the intent of
forever depriving him or her of the benefits of the right.’’
28 Am. Jur. 2d, supra, § 183, pp. 647–48. These same
standards apply regardless of whether the alleged
waiver is express or implied. See, e.g., Wadia Enter-
prises, Inc. v. Hirschfeld, 224 Conn. 240, 251–52, 618
A.2d 506 (1992).
 To summarize the governing law, in order to find that
a defendant has waived by implication a constitutional
right, it must be established (1) unequivocally (2) that
the defendant is generally aware of the costs and bene-
fits of waiving the right, and (3) that, with the choice
either to retain or relinquish the right, the defendant
voluntarily opts to abandon it. Accordingly, if it could
be established unequivocally that defense counsel did
in fact knowingly and voluntarily waive her client’s
procedural right to object to a trial court’s proposed
jury charge, then I might agree that the client could be
precluded on appeal from challenging particular
aspects of the jury charge, even defects of which the
defendant and defense counsel were unaware at the
time of trial. The problem is, in the typical Kitchens
scenario, none of these three preconditions for a valid
implied waiver is in fact satisfied. Kitchens improperly
presumes waiver in the absence of clear evidence
thereof; it does so despite the fact that no reasonable
defendant or defense counsel would knowingly execute
such a waiver; and it deprives the defendant of the
ability to choose not to waive his rights, rendering
meaningless both the concept of a right and that of
a waiver.
The first problem with the state’s new theory is that
it, no less than the original Kitchens rationale, violates
the fundamental principle that the waiver of a criminal
defendant’s constitutional rights cannot be presumed
or imputed, but must be demonstrated clearly and
unequivocally. ‘‘[T]o establish a waiver of a legal right,
there must be a clear, unequivocal, and decisive act of
a party showing such a purpose.’’ 28 Am. Jur. 2d, supra,
§ 183, p. 648; see also Gardner v. New London, supra,
63 Conn. 277. Although it is true that a waiver need not
be express but, instead, can be implied by conduct,
waiver nevertheless cannot be imputed or presumed.
See, e.g., State v. Gore, 288 Conn. 770, 775, 783–84, 955
A.2d 1 (2008); see also C. Tams, ‘‘Waiver, Acquiescence,
and Extinctive Prescription,’’ in The Law of Interna-
tional Responsibility (J. Crawford et al. eds., 2010)
pp. 1035–36.
A necessary corollary of this principle is that there
is a strong presumption against a finding of waiver,
especially a waiver of the constitutional rights of a
criminal defendant. See, e.g., North Carolina v. Butler,
441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979)
(‘‘courts must presume that a defendant did not waive
his rights’’); Miranda v. Arizona, 384 U.S. 436, 475, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (‘‘[t]his [c]ourt has
always set high standards of proof for the waiver of
constitutional rights’’). As the United States Supreme
Court explained in Johnson v. Zerbst, supra, 304 U.S.
458, ‘‘courts indulge every reasonable presumption
against waiver of fundamental constitutional rights and
. . . do not presume acquiescence in the loss of funda-
mental rights.’’ (Emphasis added; footnote omitted;
internal quotation marks omitted.) Id., 464; accord State
v. Woods, 297 Conn. 569, 583–84, 4 A.3d 236 (2010).
It is crystal clear, then, that the concept of implied
waiver is not a talisman that courts can raise whenever
they would prefer not to consider an unpreserved claim
on appeal. Rather, an implied waiver must be a true
waiver, knowing and voluntary, and courts must be
equally certain before concluding that a defendant has
waived by implication his fundamental rights. The only
difference between express and implied waiver is that,
in the latter case, it is the defendant’s conduct, rather
than his statements, that leaves no doubt of his intent to
waive his rights. So, with respect to the fifth amendment
right against self-incrimination, for example, waiver
may be inferred when a suspect or a defendant, having
been properly instructed as to his right to remain silent,
proceeds to make a statement to the police or to testify
in his own defense. Under those circumstances, assum-
ing that the suspect or the defendant understands what
is meant by the right to remain silent, his subsequent
choice to make a statement or to testify necessarily
implies a voluntary intent to waive that right. See, e.g.,
State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985)
(‘‘[b]y speaking, the defendant has chosen unambigu-
ously not to assert his right to remain silent’’). Similarly,
a state will be found to have waived by implication its
sovereign and constitutional immunity only when no
other conclusion reasonably can be drawn. As the
United States Supreme Court explained in Edelman v.
Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662
(1974), ‘‘[c]onstructive consent is not a doctrine com-
monly associated with the surrender of constitutional
rights, and we see no place for it here. In deciding
whether a [s]tate has waived its constitutional protec-
tion under the [e]leventh [a]mendment, we will find
waiver only [when] stated by the most express language
or by such overwhelming implications . . . as (will)
leave no room for any other reasonable construction.’’
(Internal quotation marks omitted.) Id., 673; see also
Envirotest Systems Corp. v. Commissioner of Motor
Vehicles, 293 Conn. 382, 389–90, 978 A.2d 49 (2009)
(‘‘[I]n order for a court to conclude that a statute waives
[this state’s] sovereign immunity by force of necessary
implication, it is not sufficient that the claimed waiver
reasonably may be implied from the statutory language.
It must, by logical necessity, be the only possible inter-
pretation of the language. . . . [W]e must interpret any
uncertainty as to the existence of a waiver as preserving
sovereign immunity.’’ [Citation omitted; emphasis omit-
ted.]). Neither the state nor the majority has identified
any other fundamental right the true waiver of which
would be implied merely by presumption, without
unequivocal evidence of an actual intent to waive.20
Nevertheless, the majority, while changing course as to
exactly what right is being waived, retains the improper
presumption that defense counsel who reviews and
acquiesces in the court’s proposed instructions know-
ingly and intentionally waives her client’s right to a
properly instructed jury, even when the instructions
later prove to be defective. Neither the state nor the
majority offers any justification for its departure from
the black letter legal principle that we will not presume
the waiver of fundamental constitutional rights.
The second problem with the state’s new macro
waiver theory is that, unlike with constitutional protec-
tions such as the right to counsel and the right against
self-incrimination, there is no reason either to conclude
or to assume that the defendant in a typical Kitchens
scenario has made a knowing and intelligent decision
that the benefits of waiving the right outweigh the costs.
Although it is true that a defendant need not have an
omniscient understanding of every possible repercus-
sion of such a decision in order to execute a valid
waiver, a reviewing court must at least assure itself that
the defendant is aware of the basic tradeoffs involved.
For example, a defendant who opts to testify in his own
defense must understand that, in order to obtain the
benefits of setting before the jury his version of the
facts and his believability as a witness, he must expose
himself to the risks associated with cross-examination
and impeachment. See, e.g., Brown v. United States,
356 U.S. 148, 154–55, 78 S. Ct. 622, 2 L. Ed. 2d 589
(1958). Similarly, in order to knowingly and intelligently
waive the right to counsel, a defendant must understand
that the benefits of self-representation—autonomy and
control over trial strategy—are purchased at the cost of
an attorney’s legal experience, judgment, and familiarity
with the rules of practice, all of which help to ensure
that the defendant will receive a fair trial. See, e.g.,
Faretta v. California, 422 U.S. 806, 834–35, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975); State v. Townsend, 211
Conn. 215, 218–19, 558 A.2d 669 (1989). In a typical
Kitchens case, by contrast, unless there is evidence
either that the parties discussed the specific defect at
issue, or that defense counsel’s failure to object was
intentional and strategic, there simply is no basis for
concluding that the defendant made an informed and
intelligent decision to waive his right to a properly
instructed jury.
The state’s new theory, namely, that a defendant
knowingly chooses to waive not specific objections but,
rather, the right to object, presents in turn a new diffi-
culty: why would a defendant ever knowingly waive
the right to challenge legally deficient jury instructions
when he receives nothing whatsoever in return? For
each of the other rights to which the state and the
majority analogize the right to a properly instructed jury
that was at issue in Kitchens, a defendant presumably
understands that he will derive some important benefit
in exchange for relinquishing the right and, possibly,
the ability to appeal if unforeseen problems later arise.
For example, a defendant forgoes: the right to counsel
for the ability to control his own representation; the
right against self-incrimination for the opportunity to
testify in his own defense and to tell the jury his side
of the story; the right to a jury trial for the ability to
have a dispassionate and legally knowledgeable judge
determine his guilt; and the right to a trial for the
reduced sentencing risk associated with a guilty plea.21
With Kitchens, by contrast, one is hard pressed to iden-
tify any reason why an informed, intelligent defendant,
or defense counsel, would ever choose to waive the
right to argue that the jury was improperly charged as
to the elements of the charged crimes, the state’s burden
of proof, or other constitutionally significant legal prin-
ciples.22 As Judge Sheldon of the Appellate Court has
recently explained, ‘‘[r]egardless of counsel’s particular
trial strategy on behalf of his client, he simply has no
excuse not to insist that the jury be properly instructed
on each essential element of every charged offense
. . . . [T]here is no conceivable tactical justification
for defense counsel not to preserve his client’s right
not to be convicted without proof beyond a reasonable
doubt of each essential element of each charged offense
by insisting that proper jury instructions be given on
those elements . . . .’’ Holloway v. Commissioner of
Correction, 145 Conn. App. 353, 366–67, 77 A.3d 777
(2013). And if no competent counsel or defendant would
waive such a right, then on what basis does the majority
assume that all such decisions are knowing and intel-
ligent?
The third—and perhaps most significant—flaw in the
state’s new theory of implied waiver is that it improperly
assumes that defense counsel in a Kitchens case volun-
tarily chooses to relinquish the defendant’s right to
challenge the jury instructions on appeal. In order for
a decision ‘‘to be deemed voluntary, it must be the
product of an essentially free and unconstrained
choice.’’ United States v. Garcia, 890 F.2d 355, 360 (11th
Cir. 1989); see also Webster’s Third New International
Dictionary (2002) p. 2564 (defining ‘‘voluntary’’ as ‘‘pro-
ceeding from the will: produced in or by an act of
choice’’). Each of the other rights to which the state
and the majority analogize the right at issue in Kitchens
involves a true choice. The defendant can retain counsel
or represent himself; he can testify or remain silent; he
can opt for trial by jury or a bench trial; he can plead
guilty or take his chances at trial. Under Kitchens, by
contrast, defense counsel who is unaware of any defects
in the court’s proposed instructions but wishes to retain
her client’s right to insist on a properly instructed jury
and to contest any defects that later come to light is
precluded from doing so. The trial court need only
afford counsel a reasonable opportunity to review the
instructions and then ask her whether they look okay.
At that point, counsel cannot articulate objections of
which she is not yet aware; nor can she refuse to answer
the court’s query.23 Her only option is to acquiesce.
An obvious solution to this conundrum would be to
allow counsel under those circumstances to inform the
court that, following a careful review of the proposed
charge, she is not presently aware of any defects but
that her client wishes to retain his due process rights
to a properly instructed jury should he later become
aware of any defects in the charge. See State v. Kitch-
ens, supra, 299 Conn. 541 (Palmer, J., concurring). In
other words, counsel could represent to the court that
the defendant ‘‘has not raised a constitutional challenge
to the charge because he is unaware of any such claim,
and not because he has elected to waive the [right].’’
(Emphasis in original.) Id. In Kitchens, I explained that,
‘‘[i]n view of the fact that the doctrine of implied waiver
is employed for the purpose of ascertaining an actor’s
intent when that intent remains unstated, counsel’s
express statement disavowing waiver—reflecting coun-
sel’s actual intent—necessarily would trump any find-
ing of implied waiver . . . .’’ (Emphasis in original.)
Id. Unfortunately, the majority in Kitchens decided to
foreclose that option, inexplicably pronouncing that
even such a statement by counsel would constitute an
‘‘intentional waive[r].’’24 Id., 487–88 n.25.
At the most fundamental level, a criminal defendant
cannot be said to have a constitutional right to a prop-
erly instructed jury if he can be forced to waive that right
against his will and if the law provides no mechanism
through which he can retain it if he so chooses. If the
majority wishes to decide, for reasons of public policy,
that the right to a properly instructed jury will be for-
feited if not timely exercised,25 and that unpreserved
constitutional challenges to the instructions will not be
subject to Golding review on appeal, that at least I
can understand. But Kitchens, as currently rationalized,
renders incoherent, in one fell swoop, both the concept
of a right and that of a waiver. It is a high price to pay to
avoid having to decide a few more instructional claims.26
To summarize, there is a strong presumption against
finding that a criminal defendant has waived his consti-
tutional rights. Even implied waiver of those rights can
be found only on the basis of unequivocal evidence that
the defendant, with full knowledge and understanding
of his rights, actually intends to waive them. These
principles are black letter law, and each is deeply and
firmly rooted in the law of Connecticut. The majority
fails to explain either how these well established criteria
are satisfied in the Kitchens context, or why they are
not applicable. To jettison them, merely to achieve a
desired policy outcome, is to place at risk not only our
Golding jurisprudence, but all of the other branches of
the law in which the concept of waiver plays a funda-
mental role: constitutional law, collective bargaining,
tort, contract, insurance, even sovereign immunity.
This, I continue to believe, is a serious mistake.
 C
Kitchens Does Not Reflect Sound
Judicial or Public Policy
In part I B of this opinion, I explained why I continue
to believe that, from a descriptive standpoint, defense
counsel who merely acquiesces in a trial court’s pro-
posed jury instructions does not thereby signify her
client’s unequivocal knowing and voluntary intent to
relinquish any and all claims, both known and unknown,
that the instructions are constitutionally deficient.
Because mere acquiescence does not satisfy the well
established requirements for a waiver of a defendant’s
constitutional rights, and because we consistently have
held that unpreserved claims that satisfy the four prongs
of Golding are reviewable on appeal unless waived,
that should be the end of the story. However, because
both the state and the majority also have offered various
policy rationales why such claims should be treated as
if they have been waived, I take this opportunity to
reiterate why, from a normative standpoint, I do not
believe that the Kitchens rule reflects sound judicial or
public policy.
Rules of reviewability, such as Golding, require that
we weigh the constitutional rights of a criminal defen-
dant against the interests of the state in the prompt and
efficient administration of justice. See, e.g., P. Westen,
supra, 75 Mich. L. Rev. 1238. On the defendant’s side
of the ledger are all of the various rationales that under-
lie the long line of cases in which both this court and our
sister courts have concluded that unpreserved claims of
error should not be barred from appellate review when
the record is adequate and the alleged error is of consti-
tutional magnitude. See, e.g., State v. Golding, supra,
213 Conn. 239–40; State v. Evans, 165 Conn. 61, 70, 327
A.2d 576 (1973); see also Wiborg v. United States, 163
U.S. 632, 658, 16 S. Ct. 1127, 41 L. Ed. 289 (1896). Chief
among those rationales is that, in the event that the state
has obtained a criminal conviction solely by violating a
defendant’s constitutional rights, ‘‘it would be a rank
miscarriage of justice to allow [the conviction] to
stand.’’ United States v. La Guardia, 902 F.2d 1010,
1013 (1st Cir. 1990). ‘‘In the fast and fluid nature of a
trial, even the most competent counsel can overlook
an issue that, in hindsight, appears to be a glaring error,
devastating to an accused’s interests.’’ T. Erisman,
‘‘Defining the Obvious: Addressing the Use and Scope
of Plain Error,’’ 61 A.F. L. Rev. 41, 47 (2008). Golding
reflects the fact that our ‘‘[r]ules of practice and proce-
dure are devised to promote the ends of justice, not to
defeat them.’’ Hormel v. Helvering, 312 U.S. 552, 557,
61 S. Ct. 719, 85 L. Ed. 1037 (1941).
By reviewing allegations that criminal convictions
have been obtained on the basis of serious constitu-
tional violations, appellate tribunals not only ensure
that potentially innocent defendants are not made to
suffer imprisonment as a result of counsel’s inadvertent
mistakes, but also help to maintain public confidence
in the administration of justice. See, e.g., People v.
Ramos, 33 App. Div. 2d 344, 348, 308 N.Y.S.2d 195 (1970);
cf. Clyatt v. United States, 197 U.S. 207, 222, 25 S. Ct.
429, 49 L. Ed. 726 (1905); State v. Miller, 202 Conn. 463,
469, 522 A.2d 249 (1987). Moreover, permitting appellate
review under such circumstances ‘‘has a salutary effect
on the prosecution’s conduct of the trial. If the intelli-
gent prosecutor wishes to guard against the possibility
of reversible error, he cannot rely on the incompetence
or inexperience of his adversary but, on the contrary,
must . . . intervene to protect the defendant from the
mistakes of counsel.’’ (Internal quotation marks omit-
ted.) United States v. Frady, 456 U.S. 152, 180, 102 S. Ct.
1584, 71 L. Ed. 2d 816 (1982) (Brennan, J., dissenting).
Reviewability thus helps to ensure that the state and
the trial court, no less than defense counsel, guard
vigilantly against any violations of a defendant’s funda-
mental constitutional rights.
The availability of Golding review is especially
important in the jury instruction context because of
the substantial risk that erroneous instructions, once
entrenched, will taint the results of, and go unchal-
lenged in, numerous criminal prosecutions. Several of
our recent Kitchens cases, including the companion
case to the present case; see State v. Herring, 323 Conn.
526, A.3d (2016); involve claims that certain of
the standard criminal jury instructions available on the
Connecticut Judicial Branch website27 are unconstitu-
tional, either facially or as applied in a particular case.
When standard instructions governing a particular point
of law are available, both defense counsel and the trial
court understandably may be hesitant to second-guess
these instructions, which have been drafted and
approved by the Criminal Jury Instruction Committee.
See State v. Helmedach, 125 Conn. App. 125, 136, 8 A.3d
514 (2010) (presuming that standard jury instructions
are correct in law), aff’d, 306 Conn. 61, 48 A.3d 664
(2012). In State v. Herring, supra, 526, for example, the
trial court informed counsel: ‘‘I took this straight from
the jury instructions that are on the [Judicial Branch]
website that are the standard that we should use. . . .
Unless you have a case that tells me that I should [devi-
ate from those], I’m leery to stray from the standard
instructions that have been tested and used over time.’’
The court later remarked: ‘‘I’m not going to change all
of these charges and go against the standard instruc-
tions. I’m loathe to do that because that’s where courts
get into trouble, when they start making changes.’’ The
deference that both defense counsel and the trial courts
accord to the standard instructions creates a powerful
structural impediment to the raising of constitutional
challenges to those instructions at trial, as even the
most diligent and competent counsel tend to focus their
‘‘political capital’’ on those objections that they deem
reasonably likely to succeed. The availability of Golding
review is, therefore, essential if defects in these widely
used instructions are to be identified and corrected
on appeal.
State v. Johnson, supra, 316 Conn. 45, is an important
case in point. In Johnson, the Appellate Court deter-
mined that, under Kitchens, the defendant, Jennifer
Johnson, had waived her unpreserved instructional
challenge. See State v. Johnson, 137 Conn. App. 733,
760, 49 A.3d 1046 (2012), aff’d, 316 Conn. 45, 111 A.3d
436 (2015). On appeal to this court from the Appellate
Court’s judgment, we disagreed, concluding that, due
to the unique procedural posture of the case, Johnson’s
claim had not been waived. State v. Johnson, supra,
56–57. Reviewing her challenge to the standard jury
instructions on nonexclusive constructive possession
of contraband, we held that the standard instruction,
which the trial court used at Johnson’s trial, was consti-
tutionally deficient. Id., 61. Although we ultimately
found the error to be harmless; id., 64; the case afforded
us an important opportunity to clarify this area of the
law, an opportunity that would have been lost, or at
least postponed indefinitely pending the filing and final
resolution of a habeas petition, if the state had prevailed
on its claim under Kitchens. See id., 61–63. Similarly,
State v. Pond, 315 Conn. 451, 108 A.3d 1083 (2015), in
which the state argued unsuccessfully that the instruc-
tional claims of the defendant, Terrell Williams Pond,
were waived under Kitchens, allowed us to review,
clarify, and develop the law governing the mens rea
element of criminal conspiracy, resolving a split of opin-
ion in the Appellate Court.28 See id., 466–88; see also
State v. Carrion, 313 Conn. 823, 844–45, 847–49, 100
A.3d 361 (2014) (assuming without deciding that claim
was not waived under Kitchens, and exercising supervi-
sory authority to direct trial courts to refrain from
instructing juries that state does not want conviction
of innocent persons).
In total, of the nearly twenty appeals decided in Con-
necticut in the five years following our decision in
Kitchens in which the state argued unsuccessfully that
an unpreserved claim of instructional error had been
waived, or conceded that such a claim had not been
waived, the reviewing court found instructional error—
either harmless or reversible—in approximately 40 per-
cent of the cases.29 Similarly, prior to Kitchens, Golding
review of unpreserved claims afforded us or the Appel-
late Court an important opportunity to clarify and
develop the criminal law in instructional error cases
such as State v. Arroyo, 284 Conn. 597, 610, 935 A.2d
975 (2007) (clarifying standard governing trial court’s
decision to charge jury on third-party culpability evi-
dence), State v. Whelan, 200 Conn. 743, 756–58, 513
A.2d 86 (reconciling inconsistent precedent and holding
that ‘‘ ‘more probable than not’ ’’ instruction on circum-
stantial evidence impermissibly diluted state’s burden
of proving guilt beyond reasonable doubt), cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986),
State v. Nugent, 199 Conn. 537, 545, 508 A.2d 728 (1986)
(clarifying common-law right of bail bondsman to
apprehend principal), State v. Burke, 182 Conn. 330,
333, 438 A.2d 93 (1980) (holding that trial court must
give no unfavorable inference instruction unless defen-
dant requests otherwise), and State v. Sitaras, 106
Conn. App. 493, 507, 942 A.2d 1071 (instructing trial
courts to refrain from using certain language in standard
criminal jury charge), cert. denied, 287 Conn. 906, 950
A.2d 1283 (2008). If the Kitchens rule is retained, such
opportunities will become increasingly scarce as trial
courts adopt the practice of forcing defense counsel to
execute a Kitchens waiver. Indeed, in most of the recent
cases in which the state failed to prevail on its waiver
argument under Kitchens, the defendant’s claim was
deemed not to have been waived only because the
record did not indicate that the trial court had given
defense counsel adequate opportunity to review and
comment on the draft charge or a supplemental charge.
If the trial court had dotted all of its I’s and crossed all
of its T’s, the errors likely would have gone uncorrected
on appeal.30
On the other side of the ledger, the state and the
majority contend that Kitchens claims should be treated
as unreviewable primarily for reasons of expediency
and fairness. Neither rationale is persuasive.
With respect to expediency, finality, and judicial
economy, the argument for retaining Kitchens appears
to be animated by the antithetical fears that, if we were
to return to the state of the law before Kitchens, either
(1) this court and especially the Appellate Court would
be inundated by and forced to dedicate scare judicial
resources to resolving nonmeritorious jury instruction
claims concocted after the fact by overzealous appellate
counsel, or (2) an abundance of meritorious claims
would result in the reversal of otherwise valid convic-
tions and the need for costly retrials. In fact, the avail-
able data suggest that both of these speculative fears
are largely unfounded.
With respect to the former concern, there is little
evidence that, prior to Kitchens, our appellate system
was bogged down trying to resolve a disproportionately
high number of trivial or nonmeritorious claims chal-
lenging the constitutionality of criminal jury instruc-
tions. A thorough review of all of the claims of unpre-
served error raised by criminal defendants in this court
and the Appellate Court during the sixteen years leading
up to our consideration of Golding, for example,
revealed that 10.1 percent of jury instruction claims
resulted in a finding of harmful error, whereas only 8.6
percent of noninstructional claims merited reversal. See
State v. Golding, Conn. Supreme Court Records &
Briefs, May Term, 1989, Appendix to the Defendant’s
Supplemental Brief pp. A1–A103 (surveying cases). By
contrast, almost none of the claims that certain state-
ments or testimony had been improperly admitted
resulted in reversible error; see id.; and, yet, there is
no suggestion that meritless claims of that sort are
clogging our appellate system and should be unreview-
able on appeal.
Moreover, it is now clear that any lightening of our
appellate docket as a result of Kitchens has been more
than offset by what has become a veritable cottage
industry in Kitchens litigation. That is to say, rather
than dedicating our resources to resolving a defendant’s
legal claim on the merits, this court and the Appellate
Court now expend significantly more effort resolving
allegations by the state that a particular jury instruc-
tional claim has been waived and, therefore, is not enti-
tled to appellate review. Because Kitchens calls for ‘‘a
close examination of the record and the particular facts
and circumstances of each case’’; State v. Kitchens,
supra, 299 Conn. 483; our post-Kitchens cases fill many
pages of the reports parsing the trial court records
for a hint of waiver.31 By contrast, once an appellant
survives Kitchens scrutiny, nonmeritorious claims of
instructional error typically can be resolved on the mer-
its in just a few pages or less.32 In some cases, the
juxtaposition is especially pronounced. For example,
in State v. Kirby, 137 Conn. App. 29, 46 A.3d 1056, cert.
denied, 307 Conn. 908, 53 A.3d 222 (2012), the Appellate
Court spent six pages determining whether the defen-
dant’s claim was waived under Kitchens but needed
only one paragraph to dispense with his claim on the
merits. See id., 45–51; see also State v. Ruocco, 151
Conn. App. 732, 739–43, 95 A.3d 573 (2014) (taking
approximately five pages to dispose of waiver issue and
devoting less than one page to merits of instructional
claim), aff’d, 322 Conn. 796, 144 A.3d 354 (2016).
Of course, judicial efforts do not always correlate
perfectly to page counts in the official court reports.
In some cases, however, it is beyond cavil that the
resources we are dedicating to resolving Kitchens quib-
bles could be better spent interpreting the law. Consider
State v. Davis, 131 Conn. App. 50, 26 A.3d 128 (2011),
rev’d, 311 Conn. 468, 88 A.3d 445 (2014), in which the
Appellate Court penned a ten and one-half page analysis
of the Kitchens issue, ultimately concluding that the
defendant’s unpreserved claim of instructional error
was impliedly waived. Id., 55–65. We granted certifica-
tion to appeal; State v. Davis, 302 Conn. 943, 29 A.3d
468 (2011); and, nearly three years later, issued majority
and concurring opinions totaling nearly forty pages, in
which we concluded that Kitchens did not in fact bar
review of the defendant’s claim. State v. Davis, supra,
311 Conn. 483; see id., 495 (Palmer, J., concurring); id.,
505 (McDonald, J., concurring). On remand, it required
only ten and one-half pages of analysis for the Appellate
Court to decide all of the defendant’s claims on the
merits. See State v. Davis, 154 Conn. App. 216, 223–33,
107 A.3d 962 (2014), cert. denied, 315 Conn. 918, 107
A.3d 961 (2015). Significant time and expense could
have been saved if the Appellate Court had simply
reached and resolved the unpreserved claims at the
outset.
This is especially true in light of the fact that the
failure to review a claim on direct appeal often will
result in the need for a more resource intensive habeas
trial on the same issue. As we explained in State v.
Elson, 311 Conn. 726, 91 A.3d 862 (2014), ‘‘[t]his, of
course, serves no judicial economy, as the rapidly writ-
ten appellate opinion of today is nothing more than
kicking the can down the road to be addressed in the
habeas petition of tomorrow—a counterproductive
action that actually increases the net workload of the
judicial system.’’ (Internal quotation marks omitted.)
Id., 752.
Nor is there much support for the concern that over-
ruling Kitchens would disturb settled decisions and
force the state to retry criminal convictions long after
the fact. In reality, and as the majority is forced to
concede, ‘‘the number of cases in which a defendant
obtain[ed] reversal of his conviction on the basis of
Golding review . . . [prior to Kitchens was] negligi-
ble.’’ State v. Kitchens, supra, 299 Conn. 523 (Katz, J.,
concurring); see also State v. Mungroo, 299 Conn. 667,
679 n.4, 11 A.3d 132 (2011) (Katz, J., dissenting) (in
decade preceding Kitchens, Supreme Court and Appel-
late Court together found reversible error on Golding
review of jury instruction challenges approximately
twice per year on average).33 A far more frequent out-
come before Kitchens was that appellate review
revealed harmless errors in the trial court’s jury instruc-
tions. See State v. Golding, supra, 213 Conn. 241.34 Such
decisions play an important role in our jurisprudence:
they provide a forum for clarifying and developing the
law but place no additional burdens on the state or the
judicial system. Indeed, as I discuss more fully herein-
after, they may eliminate the need for a costly habeas
petition and subsequent appeals that would result from
finding a claim unreviewable under Kitchens. Accord-
ingly, I am not swayed by the parade of horribles that
the state invokes in its brief.
The state’s second set of policy arguments relates to
questions of fairness. I understand the state’s position
to be that defense counsel who fails to raise a potentially
meritorious challenge during the charging conference
does so either for tactical reasons or inadvertently. If
the decision is tactical, the state contends, we should
not give the defendant a second bite at the apple and
permit counsel to try out a different tactic on appeal
when the tactic utilized at trial was unsuccessful. By
contrast, if the failure to object is inadvertent, then we
should adopt rules of reviewability that will incentivize
greater diligence or, in the absence of such rules, leave
to the habeas courts any claims that counsel’s perfor-
mance was ineffective. In either case, the state believes
that allowing a defendant to press on appeal objections
that his counsel failed to raise at trial would be unfair
both to the state and to the trial court.
Although the state’s concerns are well taken, I ulti-
mately find its arguments to be unpersuasive. Turning
first to the question of tactical or strategic waiver, I
agree with the defendant that it is almost inconceivable
that defense counsel would intentionally hold back a
potentially meritorious objection and knowingly permit
her client’s constitutional rights to be trampled, solely
so that, if her client is ultimately convicted, appellate
counsel might advance a winning argument on appeal.
As Judge Henry J. Friendly once explained, ‘‘it is exceed-
ingly hard to visualize a case [in which] a defendant or
his lawyer would deliberately lay aside a meritorious
claim so as to raise it after the defendant was jailed.’’
H. Friendly, ‘‘Is Innocence Irrelevant? Collateral Attack
on Criminal Judgments,’’ 38 U. Chi. L. Rev. 142, 158
(1970).
When the state and the majority presume that a deci-
sion to forgo potential objections to the trial court’s
proposed jury charge is strategic, however, I do not
believe that this is the sort of strategy they have in
mind.35 Rather, the concern seems to be that a defen-
dant, having pursued one strategy or theory of the case
at trial and having failed to prevail, might change direc-
tion on appeal and argue that he should have received
the benefit of instructions reflecting a different, perhaps
contradictory, strategy.
As I already discussed; see part I A of this opinion;
when the record clearly suggests that defense counsel’s
failure to raise an instructional challenge at trial was
the result of a tactical decision, I agree with the majority
that the unpreserved claim should be deemed waived
and unreviewable on appeal. This often will be the case,
for instance, when counsel does not seek an instruction
as to lesser included offenses in the hope that the jury
will find the defendant not guilty of the more serious
charge; see, e.g., United States v. Estrada-Fernandez,
150 F.3d 491, 496 (5th Cir. 1998); cf. L. Cunningham,
‘‘Appellate Review of Unpreserved Questions in Crimi-
nal Cases: An Attempt to Define the ‘Interest of Jus-
tice,’ ’’ 11 J. App. Prac. & Process 285, 321 (2010); or
when counsel advances a theory of mistaken identity
and refrains from seeking instructions, such as on self-
defense or sexual consent, that would tend to suggest
to the jury that the defendant was in fact the perpetrator.
See, e.g., State v. Fuller, 158 Conn. App. 378, 384–85,
119 A.3d 589 (2015); see also United States v. Crowley,
318 F.3d 401, 411 (2d Cir.) (concluding that defense
counsel’s failure to seek instruction on renunciation
represented reasonable strategic choice not to suggest
to jury that defendant began with but later abandoned
criminal purpose), cert. denied, 540 U.S. 894, 124 S. Ct.
239, 157 L. Ed. 2d 171 (2003). Under those or similar
circumstances, I have no difficulty concluding that
counsel’s failure to object was strategic and resulted
in an implied waiver of any unpreserved challenges.
What I cannot agree to is Kitchens’ presumption that
counsel’s decision not to raise an objection at trial must
be knowing and strategic, even when the record con-
tains no indication thereof. See State v. Kitchens, supra,
299 Conn. 470, 481–83. As Justice Katz explained in
her concurring opinion in Kitchens, a presumption of
strategic waiver ‘‘undermines this court’s exhortation
that Golding review is intended to break down any
categorical or absolute bars to appellate review by fore-
closing review of an entire class of trial errors. More-
over, by concluding that [a] mere failure to object to
an improper instruction constitutes a waiver of the
defendant’s appellate rights, the [defendant is] essen-
tially single[d] . . . out to bear the consequences of
the error despite the equal obligations [of] the trial court
and the [state] to identify and to correct the error.’’
(Emphasis omitted.) Id., 518–19 (Katz, J., concurring);
see also Moreno v. State, 341 P.3d 1134, 1146 (Alaska
2015) (‘‘[w]hether the defendant made a tactical deci-
sion not to object or intelligently waived an opportunity
to object must be plainly obvious from the face of the
record, not presumed in the face of a silent or ambigu-
ous record’’).36
Lastly, the state contends that, even if counsel’s fail-
ure to object is not strategic but, rather, merely inadver-
tent, we should treat any unpreserved objections as
waived because such a rule will provide defense coun-
sel, the state, and the trial court with an incentive to
identify any instructional errors at trial, when they can
be readily corrected. I must confess that I am at a
loss to understand the majority’s apparent belief that
treating unpreserved challenges as waived, and insulat-
ing them from appellate review, will somehow incentiv-
ize the state and trial courts to exercise greater diligence
in unearthing such errors. It is the state and the trial
court, after all, that stand to lose should a conviction
be overturned as a result of the court’s instructional
error. One would think that, if any extra motivation is
required for them to look after the defendant’s constitu-
tional rights, it would be the possibility of reversal that
would inspire them, rather than the impossibility. In
any event, I will focus my analysis on the state’s argu-
ment that the Kitchens rule is needed to motivate
defense counsel to adequately scrutinize the court’s
instructions at trial. There are at least three problems
with the state’s argument.
First, the majority has provided no support, either
empirical or anecdotal, for its assumption that denying
review under Kitchens will reduce the number of cases
in which defense counsel fails to identify and object to
instructional errors due to mistake or inadvertence. As
both courts and commentators have recognized, such
a rule offers little deterrent value with respect to such
oversights, ‘‘only marginally advances systemic fairness
and does so by exacting a heavy price in individual
fairness.’’ State v. Hargrove, 48 Kan. App. 2d 522, 554,
293 P.3d 787 (2013); see also L. Cunningham, supra, 11
J. App. Prac. & Process 317 (trial attorneys should not
be ‘‘held to the impossible standard of predicting, in
the heat of battle, every conceivable legal issue that
could provide for appellate relief after conviction’’). In
fact, the available evidence suggests that Kitchens has
done little to increase the identification and rectifica-
tion of instructional errors at trial, as this court and
the Appellate Court have entertained dozens of claims
of unpreserved instructional error in the five and one-
half years since that case was decided, with no indica-
tion that the incidence of such claims is on the wane.
Second, even if Kitchens did create an incentive for
defense counsel to exhaustively scrutinize each of the
trial court’s draft instructions for any possible error, it
is far from clear that more efficient administration of
justice would result. As the United States Supreme
Court has cautioned, ‘‘such a rule would result in coun-
sel’s inevitably making a long and virtually useless laun-
dry list of objections to [instructions] that were plainly
supported by existing precedent.’’ Johnson v. United
States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed.
2d 718 (1997). Better instead to trust that competent
counsel will identify and raise any defects apparent to
her at the time of trial, as is her professional obligation;
see State v. Mungroo, supra, 299 Conn. 679–80 (Katz,
J., dissenting); W. Pizzi & M. Hoffman, ‘‘Jury Selection
Errors on Appeal,’’ 38 Am. Crim. L. Rev. 1391, 1404–1405
(2001); and then to rely on the safety net of independent
appellate review to identify those hidden defects or
potentially erroneous standard instructions most wor-
thy of our consideration.
Third, neither the state nor the majority has provided
any compelling rationale for carving out this single
exception to our general rule of Golding review. We
continue to review unpreserved claims of constitutional
error that arises during other phases of the trial—every-
thing from voir dire to the taking of evidence to jury
deliberations—even though a Kitchens-type rule argua-
bly would incentivize defense counsel to more diligently
root out error in those stages of the process as well.
Why then a special rule for jury instructions?
The only answer that the state offers is that the draft-
ing of jury instructions is unique in that, at least in
theory, it is a more collaborative process, during which
the rules of practice encourage the state, defense coun-
sel, and the trial court to pause and jointly reflect on
the proper way to instruct the jury on the law. See
Practice Book §§ 42-16 through 42-19. This argument
proves too much.
The exact same arguments that the state makes with
respect to jury instructions could be made with respect
to other phases of trial, such as the selection and exclu-
sion of jurors during voir dire. See W. Pizzi & M. Hoff-
man, supra, 38 Am. Crim. L. Rev. 1435–36. Voir dire
also is a collaborative process during which the state,
defense counsel, and the trial court work together to
select a fair, impartial, and qualified panel, as dictated
by the rules of practice. See Practice Book § 42-3 (par-
ties may stipulate as to reduced panel size); Practice
Book § 42-4 (giving parties five days to challenge array);
Practice Book §§ 42-5, 42-11 through 42-13 (parties and
trial court are jointly responsible for selection of quali-
fied panel). Jury selection, as with jury instruction, is
a more deliberative process, unlike the trial itself, when
defense counsel must make snap judgments as to
whether to object to particular testimony or evidence.
And yet, we have imposed no Kitchens-type rule to bar
review of unpreserved claims concerning voir dire; nor
do we presume that defendants have waived all such
challenges. See, e.g., State v. Mejia, 233 Conn. 215,
231–32, 658 A.2d 571 (1995); State v. Baldwin, 224 Conn.
347, 369–70, 618 A.2d 513 (1993); but cf. State v. Hodge,
248 Conn. 207, 227, 726 A.2d 531 (unpreserved challenge
under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69 [1986], was unreviewable under Golding
because factual record was inadequate for appellate
review), cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145
L. Ed. 2d 319 (1999).37 We also continue to entertain
unpreserved claims concerning plea agreements; State
v. Das, 291 Conn. 356, 367–68, 968 A.2d 367 (2009); and
sentencing; see State v. Elson, supra, 311 Conn. 740–41;
even though those too are more collaborative and less
frenetic phases of the criminal justice process during
which defense counsel might reasonably be expected
to have identified and challenged any potential viola-
tions of the defendant’s constitutional rights. See Prac-
tice Book §§ 39-1, 39-3 through 39-5, 39-13 through 39-
16 (plea agreements); Practice Book §§ 43-5, 43-7, 43-
13 through 43-16 (sentencing). Accordingly, I see no
reason that challenges to jury instructions should be
distinguished from all other claims of constitutional
error as underserving of Golding review.38
Lastly, I turn to the argument, advanced by the state
and embraced by this court in Kitchens, that the Kitch-
ens rule does not unfairly penalize criminal defendants
for their attorneys’ inadvertent failure to object to defec-
tive jury instructions because many defendants can
obtain relief by filing a habeas action alleging ineffective
assistance of counsel. See State v. Kitchens, supra, 299
Conn. 482, 496–98. I remain unpersuaded. The reasons
why a habeas action is not an adequate substitute for
appellate review in this context have been fully
expounded elsewhere. See, e.g., id., 523–24 (Katz, J.,
concurring); id., 547–48 (Palmer, J., concurring); see
also L. Cunningham, supra, 11 J. App. Prac. & Process
318. Suffice it to say that many meritorious claims of
serious instructional error will not be subject to correc-
tion in habeas actions, and even those petitioners who
do ultimately prevail in such actions ordinarily must
wait years, while they are wrongfully imprisoned,
before they can obtain the benefit of such a ruling. Two
points, however, do warrant further discussion.
First, with five and one-half years now having passed
since we decided Kitchens, time and experience have
borne out my concerns, and those of Justice Katz, that
the majority’s reliance on habeas proceedings as a pana-
cea was seriously misplaced. When Kitchens was
decided, we predicted that the rule would increase
rather than decrease the burden on judicial resources
because any time saved in avoiding appellate review of
instructional error would be more than offset by the
need for a full habeas trial on the issue. In fact, of the
six cases decided in the year following our Kitchens
decision in which the Appellate Court found claims of
instructional error waived under Kitchens,39 four
already have resulted in habeas petitions related to the
alleged instructional error.40
When Kitchens was decided, we also warned that
habeas actions would only push back the inevitable,
as petitioners whose ineffective assistance of counsel
claims were denied on collateral review ultimately
would return to the Appellate Court for review of those
decisions. Sure enough, the first generation of post-
Kitchens habeas appeals is now coming home to roost.
See, e.g., Bharrat v. Commissioner of Correction, 167
Conn. App. 158, 143 A.3d 1106 (2016).
In addition, when Kitchens was decided, we warned
that the vindication of meritorious claims would be
unreasonably and unfairly delayed. This prediction was
realized in State v. Lahai, 128 Conn. App. 448, 18 A.3d
630, cert. denied, 301 Conn. 934, 23 A.3d 727 (2011). In
that case, the Appellate Court declined to review the
unpreserved instructional claim of Juma A. Lahai pursu-
ant to Kitchens; id., 459–60; even though the state itself
conceded that the court’s instruction had improperly
placed on Lahai the burden of proving self-defense. See
id., 451–52. We thereafter denied Lahai’s petition for
certification to appeal. State v. Lahai, 301 Conn. 934,
23 A.3d 727 (2011). In May, 2012, the habeas court
granted Lahai’s habeas petition and vacated his convic-
tion. Lahai v. Warden, Superior Court, judicial district
of Tolland, Docket No. TSR-CV-09-4003028-S (May 7,
2012). Lahai thus remained incarcerated a full year
longer than was necessary to review and vindicate his
claim.41 In the usual case, an incarcerated defendant
will have to wait far longer for his constitutional rights
to be vindicated because, ordinarily, the state will
appeal from any adverse habeas judgment.
Second, I am troubled by the state’s argument that
a defendant who is barred by Kitchens from raising a
claim on appeal, and whose claim is not a candidate
for habeas relief, has not thereby been treated unfairly
because the same incorrect law also may have been
applied to other defendants’ cases. I would remind the
state that the defendant’s claim is not that he was
treated less favorably than others by the criminal justice
system, in violation of his right to equal protection of
the law. His claim, rather, is that he was deprived of his
fundamental right to due process of law and, possibly,
wrongly imprisoned as a result. The fact that other
defendants also may have been denied a fair trial will
be of little consolation, no more than one who is
deprived of the right to practice his religion, or whose
land is taken without just compensation, will be content
to know that his neighbor was treated with equal
injustice.
For all of the foregoing reasons, in the absence of
clear evidence that a criminal defendant or defense
counsel actually intended to waive a claim that a jury
instruction violated the defendant’s constitutional
rights, I fail to see any reason why this court should
insist on treating all such claims as if they had been
waived.42
D
The Kitchens Rule Can Easily Be Circumvented
As previously discussed, in Kitchens, I explained how
the presumption that a criminal defendant intends to
waive his right to challenge the jury instructions can
be overcome if defense counsel ‘‘simply . . . inform[s]
the trial court that he has not raised a constitutional
challenge to the charge because he is unaware of any
such claim, and not because he has elected to waive
the claim.’’ (Emphasis in original.) State v. Kitchens,
supra, 299 Conn. 541 (Palmer, J., concurring). I con-
tinue to believe that such a statement by defense coun-
sel necessarily would defeat any inference that the
defendant has in fact voluntarily waived his right to a
properly instructed jury, and I would encourage the
defense bar to test this theory.
In Kitchens, the majority offered four arguments as
to why, in its view, even an express statement that
the defendant does not wish to waive any unpreserved
instructional claims would be insufficient to overcome
the presumption of implied waiver. See id., 485–88 n.25.
The majority in the present case reaffirms those argu-
ments. For the reasons that follow, I continue to find
the arguments of the majority at best unpersuasive and
at worst deeply troubling.
The majority first argues that, if defense counsel is
sincere in the statement that she is unaware of any
constitutional defects in the court’s charge, but such a
defect does in fact exist, then counsel is necessarily
ineffective and the habeas court provides the appro-
priate forum to address the problem. See id., 487 n.25.
I already have explained why a habeas court is not an
adequate forum for resolving unpreserved jury instruc-
tional claims. More important, the argument that
defense counsel who fails to identify any potential
defect in a jury charge is ineffective is (1) wholly irrele-
vant to the issue of whether the defendant should be
deemed to have knowingly waived a claim of which he
and his counsel are unaware, and (2) contrary to well
established law. See Ledbetter v. Commissioner of Cor-
rection, 275 Conn. 451, 461–62, 880 A.2d 160 (2005)
(‘‘[C]ounsel’s failure to advance novel legal theories or
arguments does not constitute ineffective performance.
. . . Nor is counsel required to change then-existing
law to provide effective representation.’’ [Citations
omitted; internal quotation marks omitted.]), cert.
denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126
S. Ct. 1368, 164 L. Ed. 2d 77 (2006).
The majority in Kitchens also asserted that I ‘‘cite[d]
no legal support [in my concurrence in that case] for
a blanket preservation by trial counsel of all constitu-
tional challenges to jury instructions merely on the basis
of counsel’s in-court statement that he or she is
‘unaware’ of a constitutional violation.’’ State v. Kitch-
ens, supra, 299 Conn. 488 n.25. If there is no authority
that specifically discusses the type of attestation I have
described, it is only because no other jurisdiction has
followed the lead of this court in Kitchens and adopted
a novel rule of implied waiver that so clearly departs
from established precedent and black letter law. In any
event, it is a matter of common sense, as well as a
firmly entrenched principle throughout the law, that
an express reservation of rights precludes a contrary
finding that a party has waived his or her rights by
implication. See, e.g., RBC Nice Bearings, Inc. v. SKF
USA, Inc., 318 Conn. 737, 767, 123 A.3d 417 (2015);
Connor v. Statewide Grievance Committee, 260 Conn.
435, 445, 797 A.2d 1081 (2002); State v. Kelley, 206 Conn.
323, 333–35, 537 A.2d 483 (1988); Olean v. Treglia, 190
Conn. 756, 772, 463 A.2d 242 (1983); Jones v. Civil
Service Commission, 175 Conn. 504, 511–12, 400 A.2d
721 (1978); American Woolen Co. v. Maaget, 86 Conn.
234, 241, 85 A. 583 (1912).
The majority in Kitchens also worried that ‘‘such a
ploy could open up a ‘Pandora’s box,’ flooding Connecti-
cut courts with cases alleging improper jury instruc-
tions on every conceivable issue and making a mockery
of the trial court’s attempt to query and solicit counsel’s
input on the jury instructions.’’ State v. Kitchens, supra,
299 Conn. 488 n.25. There is no need to panic. What I
am advocating is simply that we return to our pre-
Kitchens jurisprudence, pursuant to which the parties
are encouraged to collaborate with the trial court in
the drafting of legally accurate jury instructions and a
criminal defendant is deemed to have waived a claim
when the record suggests that defense counsel was
aware of the claim and failed to raise it for reasons
of strategy or judgment, but claims of constitutional
magnitude are otherwise reviewable under Golding.
There was no deluge of unpreserved jury instructional
claims back then, and there is no reason to fear that
there will be one now if counsel merely circumvents
the new Kitchens rule by honestly attesting that the
fictional assumptions on which Kitchens relies are
untrue in her client’s case.
Lastly, the majority in Kitchens indicated that such
a statement by defense counsel ‘‘would conflict directly
with the mandate in rule 1.1 of the Rules of Professional
Conduct that requires adequate preparation by counsel
in representing a client, which presumably would
include sufficient familiarity with the jury instructions
to identify instructions that are constitutionally
flawed.’’ Id. The majority in the present case doubles
down on this alarming statement, cautioning that ‘‘such
conduct [also] would be inconsistent with our rules of
practice, which seek to encourage good faith participa-
tion by counsel in the formulation of jury instructions.’’
I find the majority’s thinly veiled threats against defense
counsel very concerning. It is preposterous to suggest
that a commissioner of the Superior Court who, having
engaged fully in a charging conference, merely and hon-
estly informs the trial court that (1) she has thoroughly
reviewed and considered its draft jury charge, (2) she
is not aware of any constitutional defects other than
those that she has articulated, but (3) her client does not
wish to waive any challenges that might later become
apparent (if, for instance, a federal court were subse-
quently to deem one of the instructions unconstitu-
tional), thereby violates the rules of practice and
exposes herself to charges of professional misconduct.
The majority may, of course, disagree with me as to
the legal implications of such an attestation with respect
to overcoming the presumption of implied waiver.
Under no circumstances, however, is it appropriate for
this court to bullyrag a legal professional who, in the
course of zealously defending her client, happens to
expose the fact that the Kitchens emperor has no
clothes.
E
Stare Decisis
Lastly, I am not persuaded by the state’s argument
that stare decisis, or respect for judicial precedent,
requires adherence to Kitchens. It is well established
that ‘‘a court should not overrule its earlier decisions
unless the most cogent reasons and inescapable logic
require it.’’ (Internal quotation marks omitted.) State v.
Salamon, 287 Conn. 509, 519, 949 A.2d 1092 (2008).
Setting aside the fact that Kitchens itself represented
a departure from established precedent; see, e.g., State
v. Ebron, supra, 292 Conn. 679–82; and is, therefore, less
entitled to stare decisis deference; see, e.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 234–35, 115 S.
Ct. 2097, 132 L. Ed. 2d 158 (1995); there are at least
three reasons why we are not bound to uphold the
Kitchens rule.
First, the principal concerns that underlie the respect
for judicial precedent—the need for stability and pre-
dictability in the law, and the importance of maintaining
the institutional legitimacy of the judiciary—are at their
nadir in cases such as this one, in which the highest
court of a jurisdiction adopts prudential rules to manage
its own docket and to determine which types of claims
it will review. Although the parties read the history
of our Golding jurisprudence differently, there is no
dispute that the rules we have adopted to govern the
review of unpreserved claims have evolved over the
past several decades as we have sought to balance the
various considerations discussed in part I C of this
opinion. See generally State v. Kitchens, supra, 299
Conn. 447; State v. Ebron, supra, 292 Conn. 656; State
v. Golding, supra, 213 Conn. 233; State v. Evans, supra,
165 Conn. 61. These considerations include (1) securing
the fundamental constitutional rights of criminal defen-
dants, (2) maintaining an orderly trial process in which
potential errors are identified and remedied in a timely
manner, (3) disposing of meritless appellate claims as
efficiently as possible, (4) treating with fairness both
the trial court and the state, and (5) providing an oppor-
tunity for appellate courts to clarify and develop the
law outside the ‘‘the hurried and . . . hectic process
of trial . . . .’’ People v. Ladas, supra, 12 Ill. 2d 294.
The legislative and executive branches of government,
which have their own considerations to balance, rou-
tinely and appropriately tweak their practices and pro-
cedures so as to best manage their affairs and conduct
the business of the people. Kitchens is of the same
ilk, and there is no reason why our commitment to
maintaining stability and predictability in the law should
require that, as an institution of government, we bind
ourselves to unserviceable rules of procedure. Like the
political branches, this court must have the freedom
and flexibility not only to experiment with new proce-
dures, but also to set such experiments aside when time
and experience have proven them to be unworkable
and ill conceived.
The second reason stare decisis does not require that
we retain the Kitchens rule is because there are no
reliance interests that would justify the retention of
that rule in the face of its evident deficiencies. The only
conceivable detrimental reliance on Kitchens would
occur if the state, in other cases presently on appeal,
had opted not to respond to appellants’ unpreserved
claims of instructional error on the merits and instead
argued only that those claims were waived under Kitch-
ens. If there are examples of this sort of reliance, any
unfairness may be remedied simply by affording the
state an additional opportunity to brief the unpreserved
claims on the merits (or to argue that the claims are
unreviewable on a ground unrelated to the Kitchens
rule).
Third, and most important, we are not bound to retain
the Kitchens rule because not only was Kitchens
wrongly decided in a such a way as to work a manifest
injustice on criminal defendants whose constitutional
rights have been violated and who had no intention of
waiving those rights, but the rule also does irreparable
damage to our broader waiver jurisprudence. As I
explained in part I B of this opinion, the concept of
waiver is fundamental not only in the context of crimi-
nal procedure but in virtually every area of the law.
By muddying the concept in Kitchens, and by further
confusing the issue in the present case, the majority
risks infecting broad swaths of the law that rely on a
clear and cogent distinction between waiver and forfei-
ture. Ultimately, in continuing to add epicycles to Kitch-
ens in an attempt to salvage its flawed implied waiver
theory, the majority itself implicitly acknowledges that
the case is devoid of any precedential value.
II
THE DEFENDANT’S CLAIM IS UNREVIEWABLE
Applying the foregoing principles to the present case,
I would conclude, contrary to the majority, that defense
counsel did not implicitly waive the jury instruction
claims that the defendant raises on appeal. There is
absolutely no indication in the record that defense coun-
sel was aware of the alleged errors but declined to
object to them for strategic or other reasons. I agree
with the defendant that there is no conceivable reason
why, in a case that hinged on a contested eyewitness
identification, it would have been beneficial to him not
to seek a jury instruction that fully and accurately stated
the considerations that might have called the reliability
of the eyewitness testimony into doubt. Nor is there any
indication, let alone unequivocal evidence, that defense
counsel intended to waive the defendant’s procedural
right to raise such claims on appeal. Accordingly, the
state has failed to meet its burden of proving that
defense counsel, or the defendant himself, knowingly
and voluntarily waived the claims at issue in this appeal.
Although I do not believe that the defendant’s unpre-
served jury instruction claims were waived or induced,
I nevertheless agree with the state that they are unre-
viewable under Golding. The defendant’s claims are
that the trial court, in drafting its instructions with
respect to eyewitness identification, incorporated cer-
tain of the Judicial Branch’s standard criminal jury
instructions that favored the state but omitted those
standard instructions that would have supported a
defense of misidentification. It is well established, how-
ever, that a trial court’s failure to give appropriate eye-
witness misidentification instructions ‘‘is at most [an
instance] of instructional error rather than of constitu-
tional error.’’ State v. Cerilli, 222 Conn. 556, 567, 610
A.2d 1130 (1992); see also State v. Dixon, 318 Conn.
495, 501 n.3, 122 A.3d 542 (2015) (claim regarding
instructions on eyewitness identification is not of con-
stitutional magnitude). Accordingly, because Golding
review is not available for nonconstitutional claims, I
respectfully concur in the judgment.
1
See part I A of this opinion.
2
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Golding, which
defines the conditions under which a criminal defendant may prevail on an
unpreserved claim of constitutional error, represents an exception to the
general rule that objections not timely raised at trial will be deemed forfeited
and, therefore, unreviewable on appeal. See id., 239–40.
3
‘‘The distinction between a forfeiture of a right . . . and a waiver of
that right . . . is that [w]hereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or abandonment
of a known right.’’ (Internal quotation marks omitted.) Mozell v. Commis-
sioner of Correction, 291 Conn. 62, 70–71, 967 A.2d 41 (2009); accord United
States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).
Forfeiture thus occurs as a matter of course if an objection is not timely
raised, whereas waiver requires an actual informed decision not to press
the right. Although we have not always used these terms with the appropriate
precision, our Golding jurisprudence is premised on the distinction between
them. Specifically, we long have held that, whereas most claims of error
that are not timely raised at trial are deemed to be forfeited and, thus, not
reviewable on appeal, unpreserved claims of constitutional magnitude are
reviewable, assuming all of the Golding requirements are satisfied, unless
the defendant or defense counsel voluntarily chooses to waive them. See,
e.g., Mozell v. Commissioner of Correction, supra, 70–71; see also State v.
Davis, 311 Conn. 468, 503–504, 88 A.3d 445 (2014) (Palmer, J., concurring).
4
See, e.g., State v. Fabricatore, 281 Conn. 469, 471, 915 A.2d 872 (2007);
see also State v. Charles, 134 Conn. App. 242, 244, 39 A.3d 750, cert. denied,
304 Conn. 930, 42 A.3d 392 (2012); State v. Diaz, 109 Conn. App. 519, 535,
952 A.2d 124, cert. denied, 289 Conn. 930, 958 A.2d 161 (2008). Fabricatore
defies easy classification. Although we began that decision by identifying
the case as one of express waiver; State v. Fabricatore, supra, 471; later in
the decision, we suggested that it presented a question of implied waiver;
id., 478; and we also likened the claim to induced error. Id., 482–83.
5
See, e.g., State v. Hampton, 293 Conn. 435, 445–50, 978 A.2d 1089 (2009)
(defense counsel was clearly aware of defect subsequently raised on appeal
when trial court twice raised with counsel question whether unanimity
instruction was required); State v. Whitford, 260 Conn. 610, 631–34, 799
A.2d 1034 (2002) (challenge was waived when defense counsel raised same
objection at trial and accepted trial court’s curative instruction); State v.
Jones, 193 Conn. 70, 85–89, 475 A.2d 1087 (1984) (challenge was waived
when trial counsel excepted to charge later challenged on appeal and also
participated in fashioning supplementary charge to cure error). The con-
tention by the majority that in none of these cases was trial counsel aware
of the defect that subsequently was challenged on appeal is patently false
and borders on disingenuous. See footnote 27 of the majority opinion.
6
See, e.g., State v. Fuller, 158 Conn. App. 378, 394–98, 119 A.3d 589
(2015) (defendant claimed on appeal that trial court should have given
misidentification instruction, even though such instruction would have con-
tradicted and undermined his trial theory that he was present at scene of
crime but was legally in possession of allegedly stolen items); see also
United States v. Crowley, 318 F.3d 401, 411 (2d Cir.) (‘‘[the defendant’s]
failure even to raise the issue suggests a reasonable strategic choice that
the defense was better off arguing that [he] never had a criminal intent,
rather than making the argument—novel in federal law, and perhaps lacking
in jury appeal—that he began with a criminal purpose but abandoned it’’),
cert. denied, 540 U.S. 894, 124 S. Ct. 239, 157 L. Ed. 2d 171 (2003). In arguing
that reverting to the traditional, pre-Kitchens definition of implied waiver
would ‘‘eviscerate’’ the concept of implied waiver; footnote 27 of the majority
opinion; or narrow it to the point of abolition, the majority thus ignores the
existence of cases such as Hampton, Whitford, Jones, and Fuller, each of
which relied on and exemplifies the concept. See footnotes 5 and 6 of this
opinion. Of course, there will be fewer instances of implied waiver under the
traditional definition than under Kitchens’ dramatically expanded definition.
But that is as it should be. In many areas of the law, we require that an
individual expressly declare his intent to waive his fundamental constitu-
tional rights, and, when we relax that strict requirement, we should be in
no great hurry to find waiver by implication.
7
See, e.g., State v. Coward, 292 Conn. 296, 305–306, 972 A.2d 691 (2009);
State v. Cruz, 269 Conn. 97, 102, 105, 848 A.2d 445 (2004).
8
See, e.g., State v. Foster, 293 Conn. 327, 340–42, 977 A.2d 199 (2009);
State v. Holness, 289 Conn. 535, 541–45, 958 A.2d 754 (2008); State v. Brewer,
283 Conn. 352, 355, 357 n.7, 360–61, 927 A.2d 825 (2007); State v. Fabricatore,
281 Conn. 469, 475, 915 A.2d 872 (2007); see also State v. Gibson, 270 Conn.
55, 66–68, 850 A.2d 1040 (2004) (finding induced error when defense counsel
declined limiting instruction offered by court). The majority contends that
Brewer was not a case of induced or invited error but, instead, stands for
a broad implied waiver rule. See footnote 13 of the majority opinion. It is
clear, however, that, in Brewer, we relied not only on the fact that defense
counsel in that case expressed satisfaction with the challenged lesser
included offense instruction, but also that he specifically requested such
an instruction and then verified that the instruction as given—presumably
including the challenged section on unanimity—was what he had sought.
See State v. Brewer, supra, 357 and n.7. For that reason, in State v. Ebron,
292 Conn. 656, 975 A.2d 17 (2009), overruled in part on other grounds by
State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), we held Brewer up as
a case of induced error. See State v. Ebron, supra, 681 (noting that, in
Brewer, ‘‘[the] defendant could not prevail under [the] third prong of Golding
when he affirmatively requested exact lesser included offense instruction
challenged on appeal and expressed satisfaction with that charge’’). The
same can be said of Holness, in which defense counsel requested and then
specifically approved the language of the limiting instruction at issue. See
id., 681.
9
See, e.g., State v. Cooper, 38 Conn. App. 661, 670, 664 A.2d 773, cert.
denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116
S. Ct. 1837, 134 L. Ed. 2d 940 (1996).
10
The majority is, therefore, incorrect when it contends that the rationales
underlying the two rules are the same and that the doctrine of induced
error, no less than Kitchens’ expansive implied waiver rule, is predicated
on a legal fiction. It is true that the induced error doctrine assumes that
the defendant has made a strategic choice and that it holds him to the
consequences of that choice. But there is no fiction therein—requesting a
particular jury instruction is necessarily an exercise of trial strategy, regard-
less of the reason or purpose for the request—and we have made a policy
determination that Golding review should not be available if the defendant
later second-guesses that strategy and seeks to attack his own proposed
instructions. The court in Kitchens likewise could have carved out for
policy reasons a broader exception to Golding review for unpreserved jury
instruction challenges when defense counsel merely acquiesces in the trial
court’s instructions. Its primary misstep was that, rather than being seen
as further scaling back on Golding review, the Kitchens majority tried to
piggyback on the doctrine of waiver by improperly labeling as implied waiver
conduct that (1) often is not at all strategic, and (2) satisfies none of the
criteria for a knowing, voluntary relinquishment of a fundamental right. The
irony—and the fundamental slight-of-hand in Kitchens—is that it is precisely
those elements of a true waiver, which exempt it from Golding review, that
are lacking in a so-called Kitchens waiver.
11
‘‘The doctrine of judicial estoppel . . . advances notions of fair play
by precluding a party from inducing judicial action by taking one legal
position and then taking a contrary position later to achieve further advan-
tage over the same adverse party.’’ State v. Hargrove, 48 Kan. App. 2d 522,
548–49, 293 P.3d 787 (2013).
12
See, e.g., State v. Rodriguez-Roman, 297 Conn. 66, 86, 3 A.3d 783 (2010)
(unpreserved instructional claim was reviewable when ‘‘defense counsel
generally acquiesced in the jury instructions but did not affirmatively request
the instruction’’); State v. Ebron, 292 Conn. 656, 680, 975 A.2d 17 (2009)
(claim was reviewable ‘‘because the defendant, while acquiescing to the
charge as given at trial, did not actively induce the trial court to act on the
challenged portion of the instruction’’), overruled in part by State v. Kitchens,
299 Conn. 447, 10 A.3d 942 (2011); State v. Madigosky, 291 Conn. 28, 35 n.7,
966 A.2d 730 (2009) (‘‘[t]here was no induced instructional error . . .
because the defendant had not submitted a request to charge or suggested
any instructional language’’ [internal quotation marks omitted]); State v.
Griggs, 288 Conn. 116, 126–27 n.13, 951 A.2d 531 (2008) (mere acquiescence
does not bar Golding review); see also State v. Williams, 202 Conn. 349,
363, 521 A.2d 150 (1987) (‘‘[t]his court has consistently held that a claim
that the judge improperly instructed the jury on an element of an offense
is appealable even if not raised at trial’’).
13
For this reason, the majority is simply incorrect when it contends that
overruling Kitchens also would require that we overrule those decisions.
Each of those decisions was properly decided under our long-standing, pre-
Kitchens implied waiver jurisprudence.
14
I recognize that, prior to Kitchens, the Appellate Court in certain
instances found that unpreserved claims of jury instruction error had been
waived solely on the basis of defense counsel’s acquiescence in the trial
court’s draft charge. The Appellate Court reached that result, however, only
because it, like the majority in Kitchens, relied on cases such as State v.
Cooper, supra, 38 Conn. App. 661, without recognizing that those cases
require something beyond mere acquiescence before a court may find that
a defendant has waived his right to a properly instructed jury.
15
Curiously, the majority notes that it is ‘‘not aware of any case in which
a reviewing court has construed ‘affirmative acceptance’ as meaning passive
acquiescence,’’ and yet it declines to address any of these cases, none of
which appears to contain even a whiff of affirmative acceptance.
16
The notion that Kitchens cases are so fact dependent that no guidance
can be provided is a red herring. In many instances, the trial court record
reveals only that, when given the opportunity to object to any of the court’s
instructions, defense counsel merely indicates that she has no objections,
that the instructions are acceptable or okay, or something to that effect.
There is absolutely no reason why this court cannot and should not offer
litigants and reviewing courts general guidance as to which ‘‘magic words’’
will result in waiver in those circumstances, and which will allow the defen-
dant to preserve his appellate rights. See part I D of this opinion.
17
Webster’s Third New International Dictionary defines an ‘‘inference’’ as
‘‘the act of passing from one or more propositions, statements, or judgments
considered as true to another the truth of which is believed to follow from
that of the former . . . .’’ (Emphasis added.) Webster’s Third New Interna-
tional Dictionary (2002) p. 1158.
18
See, e.g., State v. Kitchens, supra, 299 Conn. 500–501 (Katz, J., concur-
ring); id., 530–32 (Palmer, J., concurring); W. Horton & K. Bartschi, ‘‘2011
Appellate Review,’’ 86 Conn. B.J. 1, 1–2 (2012); C. Ray & M. Weiner, ‘‘State
v. Kitchens: The Decision Not To Decide,’’ Connecticut Lawyer, March,
2011, p. 43.
19
Although there are, no doubt, instances in which reliance on a legal
fiction is necessary or appropriate, the court’s unapologetic and inapt reli-
ance on the concept in Kitchens calls to mind one well-known critique of
legal fiction: ‘‘[Lawyers] feed [on] untruth, as [addicts] do [on] opium, at
first from choice and with their eyes open, afterwards by habit, [until] at
length they lose all shame, avow it for what it is, and swallow it with
greediness, not bearing to be without it.’’ (Internal quotation marks omitted.)
L. Harmon, ‘‘Falling Off the Vine: Legal Fictions and the Doctrine of Substi-
tuted Judgment,’’ 100 Yale L.J. 1, 3–4 (1990), quoting J. Bentham, A Comment
on the Commentaries, in A Comment on the Commentaries and a Fragment
on Government (1977) p. 59.
20
I recognize that, following federal law, this court has evaluated implied
waivers of a defendant’s double jeopardy rights according to a different
standard. See United States v. Dinitz, 424 U.S. 600, 609–10 n.11, 96 S. Ct.
1075, 47 L. Ed. 2d 267 (1976) (double jeopardy waiver need not satisfy
‘‘knowing, intelligent, and voluntary standard,’’ by which waivers of other
constitutional rights are evaluated); State v. Chimenti, 115 Conn. App. 207,
230 n.19, 972 A.2d 293 (same), cert. denied, 293 Conn. 909, 978 A.2d 1111
(2009). Several rationales have been suggested for this age-old rule: it may be
assumed that a criminal defendant will have full knowledge of any previous
prosecutions for the same alleged offense; see White v. State, 23 Okla. Crim.
198, 204–205, 214 P. 202 (1923); double jeopardy rights are uniquely subject
to abuse and gamesmanship; see Levin v. United States, 5 F.2d 598, 600–601
(9th Cir.), cert. denied, 269 U.S. 562, 46 S. Ct. 21, 70 L. Ed. 412 (1925); Dalton
v. People, 224 Ill. 333, 337–38, 79 N.E. 669 (1906); State v. White, 71 Kan.
356, 359–60, 80 P. 589 (1905); and the federal rules of criminal procedure,
as well as the corresponding procedural rules of certain states, dictate that
such claims are waived if not timely raised. See United States v. Herzog,
644 F.2d 713, 716 (8th Cir.), cert. denied, 451 U.S. 1018, 101 S. Ct. 3008, 69
L. Ed. 2d 390 (1981); Ex parte Hall, 94 N.J. Eq. 108, 119, 118 A. 347 (1922).
None of those rationales applies to claims of instructional error, which,
the state concedes, can be waived only on the basis of a knowing and
voluntary decision.
21
The majority contends that ‘‘[t]here is no such ‘exchange’ because waiver
of the foregoing rights is within the complete control of the defendant.’’
Footnote 15 of the majority opinion. This makes little sense. Setting aside
the fact that the majority’s conclusion does not flow from its premise—the
blackjack player has complete control over the decision to split a pair or
to double down, but there is no doubt that each involves an exchange—
the majority’s premise is plainly false. It will come as some news to criminal
defendants, for example, that they are in complete control of the plea
bargaining process.
22
I do not foreclose the possibility that, in particular cases, counsel may
waive this right in order to obtain a strategic benefit. As I discuss hereinafter,
I agree that the right should be deemed waived in those cases in which
such a strategic choice can clearly be established.
23
The state concedes that, in a Kitchens situation, the trial court asks
defense counsel to make a ‘‘binding judgment’’ as to whether to accept the
proposed instructions.
24
See part I D of this opinion.
25
See footnote 3 of this opinion. Although the majority in Kitchens pur-
ported to maintain the well established distinction between forfeiture and
waiver; see State v. Kitchens, supra, 299 Conn. 474; as I previously have
explained, the only reasonable reading of the Kitchens rule is that defense
counsel, by failing to object following a review of the trial court’s proposed
jury instructions, forfeits the defendant’s right to raise such challenges on
appeal. See State v. Davis, supra, 311 Conn. 499 (Palmer, J., concurring)
(Kitchens is ‘‘a forfeiture case masquerading as a waiver case’’ [emphasis
omitted]). The majority refuses to admit this obvious fact only because it
will not acknowledge that Kitchens degraded the constitutional protections
long secured by our Golding jurisprudence.
26
The fundamental flaw in the majority’s reasoning is essentially the
inverse of what philosophers have termed the ‘‘ ‘naturalistic fallacy’ ’’; United
States v. Chen, 257 F. Supp. 2d 656, 663 n.26 (S.D.N.Y. 2003); or the mistake
of assuming that because things are a certain way, they therefore should
be that way. The majority makes the opposite mistake, imputing a waiver
(descriptively) so as to obtain the procedural benefits of deeming an issue
waived (normatively). To put it bluntly, the majority concludes that there
is a waiver—a knowing, voluntary decision to relinquish the right to a
properly instructed jury—for no reason other than that it wants there to
be a waiver.
27
See Judge Support Services, Superior Court Operations, Connecticut
Judicial Branch Criminal Jury Instructions, available at http://jud.ct.gov/JI/
Criminal/Criminal.pdf (last visited October 11, 2016).
28
The majority accurately notes that, in Pond, the state, in arguing unsuc-
cessfully that Pond’s claim was unreviewable, cited induced error rather
than implied waiver. The reason that the state did not also contend that
Pond’s claim had been waived apparently was that the trial court in that
case did not hold an on-the-record charging conference or provide counsel
with an advance copy of the charge, and thus did not satisfy the Kitchens
criteria for implied waiver. State v. Pond, 138 Conn. App. 228, 238 n.7, 50
A.3d 950 (2012), aff’d, 315 Conn. 451, 108 A.3d 1083 (2015); see id., 237. The
takeaway is that, if the trial court had dotted all of its I’s and crossed all
of its T’s, Pond’s claim likely would have been held impliedly waived under
Kitchens, resulting in injustice to him and depriving this court of an
important opportunity to clarify and develop the law on criminal conspiracy.
Put differently, it is only by reviewing the results of cases in which the
defendant survived Kitchens that we can understand the important opportu-
nities that are lost when the Kitchens rule is applied to bar appellate claims
of instructional error.
29
See State v. Johnson, supra, 316 Conn. 48; State v. Devalda, supra, 306
Conn. 505 n.15, 506; State v. Baptiste, 302 Conn. 46, 49, 58, 23 A.3d 1233
(2011) (rejecting state’s argument that defendant waived instructional claim
under Kitchens and remanding case to Appellate Court, which subsequently
found instructional error in State v. Baptiste, 133 Conn. App. 614, 628, 36
A.3d 697 [2012], appeal dismissed, 310 Conn. 790, 83 A.3d 591 [2014]); State
v. Brown, 299 Conn. 640, 659–60, 11 A.3d 663 (2011); State v. Opio-Oguta,
153 Conn. App. 107, 112 n.4, 114, 100 A.3d 461, cert. denied, 314 Conn. 945,
102 A.3d 1115 (2014); State v. Ruocco, 151 Conn. App. 732, 742–44, 95 A.3d
573 (2014), aff’d, 322 Conn. 796, 144 A.3d 354 (2016); State v. Antonaras,
137 Conn. App. 703, 725–26 and n.16, 49 A.3d 783, cert. denied, 307 Conn.
936, 56 A.3d 716 (2012); see also State v. Carrion, supra, 313 Conn. 844–45,
848 (declining to address claim that Appellate Court incorrectly concluded
that defendant had waived claim regarding instructional impropriety because
such impropriety was harmless in any event).
30
I am not persuaded by the state’s argument that, if these rationales were
compelling, they also would require the review of unpreserved claims that
a defendant truly waives or induces. The rationales that I have discussed
for reviewing unpreserved challenges to a jury instruction in cases in which
defense counsel merely acquiesces are either muted or trumped by distinct
considerations of fairness and reliance in the context of waiver or induced
error. See footnotes 10 and 11 and accompanying text of this opinion.
31
See, e.g., State v. Terry, 161 Conn. App. 797, 810–14, 128 A.3d 958 (2015)
(five pages of waiver analysis), cert. denied, 320 Conn. 916, 131 A.3d 751
(2016); State v. Young, 161 Conn. App. 552, 556–63, 129 A.3d 127 (2015)
(seven pages); State v. Bialowas, 160 Conn. App. 417, 426–30, 125 A.3d 642
(2015) (five pages); State v. Martone, 160 Conn. App. 315, 323–29, 125 A.3d
590 (six pages), cert. denied, 320 Conn. 904, 127 A.3d 187 (2015); State v.
McClain, 154 Conn. App. 281, 289–93, 105 A.3d 924 (2014) (five pages), cert.
granted, 319 Conn. 902, 122 A.3d 637 (2015); State v. Charles, 134 Conn.
App. 242, 246–52, 39 A.3d 750 (six pages), cert. denied, 304 Conn. 930, 42
A.3d 392 (2012).
32
See, e.g., State v. Danforth, 315 Conn. 518, 537, 108 A.3d 1060 (2015);
State v. Rabindranauth, 140 Conn. App. 122, 129–31, 58 A.3d 361, cert.
denied, 308 Conn. 921, 62 A.3d 1134 (2013); State v. Hines, 136 Conn. App.
412, 419–21, 44 A.3d 886, cert. denied, 307 Conn. 903, 53 A.3d 219 (2012);
State v. White, 127 Conn. App. 846, 856–58, 17 A.3d 72, cert. denied, 302
Conn. 911, 27 A.3d 371 (2011); see also United States v. Hamilton, 499 F.3d
734, 736–37 (7th Cir. 2007) (declining to address waiver issue and proceeding
not only to resolve merits of defendant’s claim but also to clarify conflicting
circuit precedent as to mens rea element of fraud in three paragraphs), cert.
denied, 552 U.S. 1129, 128 S. Ct. 951, 169 L. Ed. 2d 782 (2008); State v.
Bonilla, 317 Conn. 758, 770 n.10, 120 A.3d 481 (2015) (declining to address
‘‘intricacies’’ of Kitchens issue because merits of defendant’s claim could
be readily resolved).
33
Connecticut Criminal Defense Lawyers Association, which filed an ami-
cus brief in State v. Herring, supra, 323 Conn. 526, a companion case,
cites similar statistics suggesting that the number of unpreserved claims of
instructional error resulting in reversal was even lower during the sixteen
years following our decision in State v. Evans, supra, 165 Conn. 61, in 1973.
During that period, our appellate courts found reversible error on the basis
of unpreserved claims in only 3 percent of criminal appeals. State v. Golding,
Conn. Supreme Court Records & Briefs, May Term, 1989, Defendant’s Supple-
mental Brief p. 16.
34
In the five years preceding our decision in Kitchens, for example, this
court and the Appellate Court found harmless unpreserved instructional
error in more than one dozen cases, including State v. Rodriguez-Roman,
297 Conn. 66, 87, 3 A.3d 783 (2010), State v. Hampton, 293 Conn. 435, 462,
988 A.2d 167 (2009), Small v. Commissioner of Correction, 286 Conn. 707,
731, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129
S. Ct. 481, 172 L. Ed. 2d 336 (2008), State v. Thompson, 122 Conn. App. 20,
28, 996 A.2d 1218 (2010), aff’d, 305 Conn. 806, 48 A.3d 640 (2012), State v.
Nance, 119 Conn. App. 392, 411, 413, 987 A.2d 376, cert. denied, 295 Conn.
924, 991 A.2d 569 (2010), State v. Nelson, 118 Conn. App. 831, 856, 986 A.2d
311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010), State v. Fleming,
111 Conn. App. 337, 352–53, 356, 958 A.2d 1271 (2008), cert. denied, 290
Conn. 903, 962 A.2d 794 (2009), State v. Haywood, 109 Conn. App. 460, 471,
952 A.2d 84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008), State v. Tok,
107 Conn. App. 241, 274, 945 A.2d 558, cert. denied, 287 Conn. 919, 951 A.2d
571 (2008), and cert. denied sub nom. State v. Jourdain, 287 Conn. 920, 951
A.2d 570 (2008), State v. Lawson, 99 Conn. App. 233, 245, 913 A.2d 494,
cert. denied, 282 Conn. 901, 918 A.2d 888 (2007), State v. Rivet, 99 Conn.
App. 230, 233, 912 A.2d 1103, cert. denied, 281 Conn. 923, 918 A.2d 274
(2007), State v. Youngs, 97 Conn. App. 348, 362, 904 A.2d 1240, cert. denied,
280 Conn. 930, 909 A.2d 959 (2006), and State v. McArthur, 96 Conn. App.
155, 181–83, 899 A.2d 691, cert. denied, 280 Conn. 908, 907 A.2d 93 (2006).
35
It would be disturbing indeed if the majority, having rejected the ‘‘cyni-
cal’’ view that a state’s attorney might allow an instructional error to go
unnoticed in order to obtain a strategic advantage; footnote 18 of the majority
opinion; were to adopt an equally cynical presumption regarding the conduct
of defense counsel.
36
If the majority is truly concerned that many unpreserved claims of
instructional error are the result of secret strategic plans that are not appar-
ent from the trial court record, then those concerns easily can be addressed
simply by requiring that appeals alleging instructional error be accompanied
by an affidavit by trial counsel stating that she was unaware of the alleged
defects at the time of trial and that the defendant did not intend to waive
any objections thereto. Cf. General Statutes § 52-190a (a) (attorney filing
medical malpractice action must attach certificate stating that reasonable
inquiry gave rise to good faith belief that grounds exist for action against
each defendant). In the event that the state had cause to question the veracity
of such a representation, the matter could be remanded to the trial court
to make the necessary findings. See Practice Book § 60-2 (9); see also Henry
v. Mississippi, 379 U.S. 443, 449–53, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965).
Such a procedure would allow any necessary factual determinations to be
made by the court that tried the case, which is in the best position to assess
whether the decisions of counsel were intentional and strategic, and dispense
with the need for this court to engage in fact-finding functions for which
it is ill-suited, or for a second, costly trial before a habeas court. And it
would ensure that criminal defendants are not unfairly deprived of their
constitutional right to a properly instructed jury solely on the basis of a
presumption with little basis in reality regarding an error for which the
defendant himself is almost certainly blameless. See State v. Hargrove, 48
Kan. App. 2d 522, 551–53, 293 P.3d 787 (2013).
37
It bears noting that, whereas the rules of practice governing jury trials
expressly inform the defendant that he may be deemed to have waived the
right to a jury trial if he fails to make a timely election; Practice Book
§ 42-1; there is no corresponding waiver provision in the rules governing
jury instructions.
38
It bears emphasizing in this respect that Golding itself was an instruc-
tional error case, and the Golding test clearly was intended from the outset
to govern such claims. See State v. Golding, supra, 213 Conn. 235. Moreover,
I am not persuaded by the state’s argument that Golding predated the era
of in-depth charging conferences and, therefore, did not account for the
importance of encouraging full participation in such conferences by both
parties. In fact, our cases from that time period reflect that we recognized
both the existence and the importance of collaborative charging conferences
but that we placed a higher priority on ensuring that unwaived constitutional
violations did not go unaddressed. See, e.g., State v. Sirimanochanh, 224
Conn. 656, 660–64, 620 A.2d 761 (1993); State v. Famiglietti, 219 Conn. 605,
618–19, 595 A.2d 306 (1991).
39
See State v. Beebe, 131 Conn. App. 485, 492–93, 27 A.3d 26 (2011), cert.
denied, 303 Conn. 921, 34 A.3d 397 (2012); State v. Brown, 131 Conn. App.
275, 282, 26 A.3d 674 (2011), aff’d, 309 Conn. 469, 72 A.3d 48 (2013); State
v. Myers, 129 Conn. App. 499, 510, 21 A.3d 499, cert. denied, 302 Conn. 918,
27 A.3d 370 (2011); State v. Bharrat, 129 Conn. App. 1, 18–19, 20 A.3d 9,
cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011); State v. Lahai, 128 Conn.
App. 448, 460, 18 A.3d 630, cert. denied, 301 Conn. 934, 23 A.3d 727 (2011);
State v. Carrion, 128 Conn. App. 46, 60, 16 A.3d 1232 (2011), aff’d, 313 Conn.
823, 100 A.3d 361 (2014).
40
See Carrion v. Warden, Superior Court, judicial district of Tolland,
Docket No. TSR-CV-11-4004163-S (December 15, 2015); Bharrat v. Commis-
sioner of Correction, Superior Court, judicial district of Tolland, Docket
No. TSR-CV-12-4004615-S (August 27, 2014), appeal dismissed, 167 Conn.
App. 158, 143 A.3d 1106 (2016); Lahai v. Warden, Superior Court, judicial
district of Tolland, Docket No. TSR-CV-09-4003028-S (May 7, 2012); Myers
v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-
14-4005938-S (withdrawn August 12, 2016). I focus on cases decided in the
immediate wake of the Kitchens decision because we will not know for some
period of time whether more recently decided Kitchens cases ultimately will
result in habeas challenges.
41
The majority contends that, in Lahai, the Appellate Court ‘‘cited Kitch-
ens only for its passing reference to the doctrine of induced error, and not
for its clarification of the implied waiver rule.’’ This is plainly false. Although
it is true that the Appellate Court concluded that Lahai had induced the
challenged error; see State v. Lahai, supra, 128 Conn. App. 457; that court
also expressly discussed Kitchens’ clarification of the implied waiver rule
and independently found that the instructional challenge at issue was
impliedly waived under Kitchens. Id., 459–60.
42
Although I largely agree with the concurring opinion of Chief Justice
Rogers, I do not share her view that ‘‘specific, on-the-record discussion of
the particular instruction later claimed to be defective on appeal,’’ followed
by defense counsel’s explicit assent to that instruction, is sufficient to estab-
lish waiver by implication of the defendant’s constitutional right to a properly
instructed jury. (Emphasis in original.) Text accompanying footnote 10 of
Chief Justice Rogers’ concurring opinion. As I explained in this opinion, I
would find waiver only when the well established criteria for waiver are
actually satisfied. Although I understand that certain federal courts follow
an approach similar to that advocated by Chief Justice Rogers, I do not
believe that that approach ever has been the law of this state.