STATE v. TERRY P. HERRING, SC 19383

Judicial District of New Britain

 

      Criminal; Whether State v. Kitchens, Which Holds that Defendant can Implicitly Waive Right to Appellate Review of Unpreserved Claim of Instructional Error, Should Be Overruled.  The defendant was convicted of conspiracy to distribute marijuana and possession of marijuana with intent to sell.  He appealed, claiming that the trial court improperly instructed the jury concerning the state’s burden of proving that he knew that a package delivered to his house contained 102 pounds of marijuana.  The defendant claimed that the improper instruction unconstitutionally lowered the state’s burden of proof.  The defendant conceded that his claim was unpreserved in that he took no exception to the jury instruction at trial, but he argued that it was nonetheless reviewable under State v. Golding, 213 Conn. 233 (1989).  Golding held that a defendant can prevail on an unpreserved claim of constitutional error if he shows, among other things, that the error clearly deprived him of a fair trial.  The Appellate Court (151 Conn. App. 154) disagreed, holding that Golding review was unavailable to the defendant because he impliedly waived his claim of instructional error as contemplated by State v. Kitchens, 299 Conn. 447 (2011).  In Kitchens, the Supreme Court held that a defendant waives Golding review of a claim of instructional error if “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 counsel affirmatively accepts the instructions proposed or given.”  Here, the Appellate Court found that the defendant had waived the claim under Kitchens because he assented to the challenged jury instruction after having a meaningful opportunity to review it.  The Supreme Court will determine in this appeal whether State v. Kitchens should be overruled, thereby permitting review of the defendant’s claim of instructional impropriety.  If the Supreme Court overrules Kitchens, it will also consider whether the defendant is entitled to prevail on his claim of instructional error under State v. Golding.