STATE v. JAMES E. WALKER, SC 19281
Judicial District of New Haven
Criminal; Appellate Forfeiture; Whether Appellate Court Properly Refused to Review Unpreserved Claim under State v. Golding Because Record Inadequate for Review. The defendant was convicted of conspiracy to commit assault in the first degree. He appealed, claiming that the trial court violated his constitutional right to be present at all critical stages of the criminal proceeding when it excluded him from an in-chambers inquiry into the possibility that his trial counsel had a conflict of interest. The defendant had not raised that claim before the trial court, and he sought review under State v. Golding, 213 Conn. 233, 239-40 (1989), which holds that a defendant can prevail on a claim of constitutional error not preserved at trial only if, among other things, the record is adequate to review the claim and the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. The Appellate Court (147 Conn. App. 1) affirmed the judgment, agreeing with the state that the defendant’s claim was not entitled to Golding review because the record was inadequate. The court noted that it could not speculate as to what actually occurred at trial and that, based on the record before it, it could not determine whether a meeting had occurred in chambers or whether there had been off the record discussion in court either in the presence or absence of the defendant. The court stated that it was incumbent upon the defendant to request a hearing before the trial court to establish a factual predicate for appellate review of his claim and that his failure to do so precluded review of the claim. The Supreme Court granted the defendant certification to appeal and will decide whether the Appellate Court properly determined that he could not prevail on his claim that the trial court excluded him from a critical stage of the proceeding when trial counsel’s possible conflict of interest was discussed because his failure to seek articulation resulted in an inadequate record for review. The defendant claims that the Appellate Court’s decision contravenes Practice Book § 61-10 (b), which provides that a party’s failure to seek articulation “shall not be the sole ground upon which the court declines to review any . . . claim on appeal.” He claims that, if the Appellate Court deemed further information from the trial court necessary to review his claim, it should have ordered an articulation under § 61-10 (b). The state counters that the Appellate Court did not fault the defendant for failing to seek an articulation but rather for failing to request a hearing before the trial court to establish a factual predicate for his claim. The state claims that § 61-10 (b) does not apply here because a motion for articulation would have been inapt insofar as there was no ambiguity in the trial court’s decision. Finally, the state asserts that § 61-10 (b) did not overrule Golding and other precedent establishing that unpreserved constitutional claims will not be reviewed unless the record is adequate for review in the sense that there is no need for additional trial court proceedings or factual findings from the trial court.