Judicial District of Ansonia-Milford


      Criminal; Jury Instructions; Whether the Appellate Court Properly Applied State v. Kitchens in Finding that the Defendant Waived his Claim of Instructional Error. The defendant appealed to the Appellate Court (131 Conn. App. 50) from convictions of first degree robbery and conspiracy to commit first degree robbery.  He claimed that the trial court incorrectly instructed the jury that it could find him guilty of robbery on a theory of liability that was not charged in the information, specifically, that he could be liable if "another participant in the crime" had a firearm.  Because the defendant did not preserve that claim for appellate review, he sought review under State v. Golding, 213 Conn. 233, 239-40 (1989).  The state argued that the defendant could not prevail under Golding because he implicitly waived the claim.  Applying the doctrine of implied waiver as clarified in State v. Kitchens, 299 Conn. 447 (2011), the Appellate Court concluded that the defendant acquiesced in the robbery instruction and, thus, implicitly waived his claim.  In Kitchens, the Supreme Court held that a challenge to a jury instruction may be deemed implicitly waived "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 counsel affirmatively accepts the instructions proposed or given." Here, because the defendant received a copy of the state's request to charge, which mirrored the standard robbery instruction posted on the judicial branch website, and had notice that the trial court intended to deliver that instruction, the Appellate Court determined that the trial court had given him a meaningful opportunity to review the charge as contemplated by Kitchens.  The court reasoned that distributing a written copy of the proposed charge is not the only means by which the trial court can provide the charge such that it can be subject to meaningful review.  The court rejected the defendant's argument that the claim was not waived because his attorney did not expressly agree with the instruction, determining that, in affirmatively stating that he had no objection to the charge, defense counsel implicitly waived any objection to it.  Finally, the Appellate Court noted that the trial court had no duty to engage the defendant in a dialogue concerning the content of the charge, but rather properly directed its inquiries concerning the charge to the defendant's attorney.  The Supreme Court will now decide whether the Appellate Court properly applied Kitchens in determining that the defendant had waived his claim of instructional error.