Judicial District of New Haven


      Criminal; Whether, Under State v. Kitchens, Defendant Waived Implicitly Claim of Instructional Error.  The defendant was convicted of murder, first degree assault, and weapons charges.  On appeal to the Appellate Court, he argued for the first time that the trial court’s jury instructions on the issue of identification prejudiced him and deprived him of a fair trial in that they emphasized the importance of the eyewitness’ certainty without any qualification that certainty does not mean accuracy.  The defendant sought review of the claim under State v. Golding, 213 Conn. 233 (1989), which sets forth the circumstances under which a party may prevail on a constitutional claim that was not raised before the trial court.  The Appellate Court (149 Conn. App. 665) held that the defendant could not satisfy Golding’s requirement that a constitutional violation clearly occurred and clearly deprived him of a fair trial because, under State v. Kitchens, 299 Conn. 447 (2011), he had waived the claim at trial.  In Kitchens, the Supreme Court held that a defendant is deemed to have implicitly waived his right to challenge jury instructions on appeal when, after the trial court provides counsel with the proposed jury instructions, allows a meaningful opportunity for their review and solicits comments from counsel regarding changes or modifications, defense counsel affirmatively accepts the instructions proposed or given.  The Appellate Court noted that the record showed that the state and the defense were provided with a copy of a draft version of the jury instructions and that, a few days later, the trial court solicited comments from both sides regarding changes or modifications to the instructions, but that defense counsel did not make any objections.  After instructing the jury, the court again provided defense counsel with an opportunity to object to the instructions and no objections were made as to the instruction on identification.  At sentencing, defense counsel reiterated that the defense had been given an opportunity to view the instructions and voice any objections, and had declined to do so.  In fact, defense counsel explicitly stated that he did not have any issue with the content of the instructions and had "agreed on them" at the charging conference.  The Appellate Court determined that, under these circumstances, the defendant had waived his claim of instructional error and it affirmed his convictions.  The Supreme Court will decide whether the Appellate Court properly determined that the defendant’s unpreserved claim of instructional error had been waived under Kitchens.