STATE of Conecticut v. Raquann Tyrone DAVIS.
This appeal requires us to further define the contours of the implied waiver doctrine announced in State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011). The defendant, Raquann Tyrone Davis, claims that the trial court improperly instructed the jury that it could find him guilty under a theory of liability not set forth in the state's information. Specifically, the defendant argues that although the state alleged, in count one of its long form information charging him with robbery in the first degree, that “during the commission of the crime [the defendant] was armed with what he represented by his words or conduct to be a firearm,” in violation of General Statutes § 53a–134 (a)(4), the court instructed the jury that the defendant could be found guilty if all the other elements of robbery in the first degree had been proven, and any person participating in the commission of the crime possessed a firearm.1 Because the defendant did not preserve his claim for appellate review by objecting to the jury instructions, he sought review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).2 The Appellate Court concluded that the defendant had implicitly waived any objection to the jury instructions, and declined to review the defendant's instructional error claim on appeal. State v. Davis, 131 Conn.App. 50, 64–65, 26 A.3d 128 (2011). We granted the defendant's petition for certification to appeal, limited to the following question: “Did the Appellate Court properly apply the waiver doctrine set forth in State v. Kitchens, [supra, at 447]?” State v. Davis, 302 Conn. 943, 29 A.3d 468 (2011).
We conclude that, under the facts of the present case, the defendant did not implicitly waive his claim under the rule set forth in Kitchens, because he was never provided with the court's actual proposed charge, and consequently did not have a meaningful opportunity to review the instructions. Accordingly, we reverse the judgment of the Appellate Court.
The Appellate Court's opinion sets forth the following facts that the jury reasonably could have found. “Sometime after 10 p.m. on July 12, 2008, the defendant, Thaddeus Lowery and Brian Backman were passengers in an automobile being operated by Gerard Jones. Jones drove to a deli in West Haven, spoke with two other men there and then walked toward the victim, Dayshon Caple, who was standing near a restaurant that was close by. Jones, who was acquainted with the victim, discussed obtaining marijuana from him. Following their conversation, Jones and the victim, who believed that Jones had offered him a ride home in exchange for marijuana, approached Jones' automobile. The defendant and Lowery exited the automobile. The defendant brandished a revolver that he held close to the victim's chest and Lowery brandished a shotgun that he pointed at the victim's head. The victim, perceiving that he was about to be robbed, told the men that he did not ‘have anything.’ The defendant cocked the hammer on his revolver and asked the victim, ‘you think we playin’?' Thereafter, the defendant and Lowery searched the victim's clothing and stole his cellular telephone, a quantity of marijuana in his possession and his wallet that contained approximately $40. Jones stood nearby while these events unfolded. After the defendant, Lowery and Jones got back into their automobile with the victim's possessions and drove away, the victim fled to a nearby gas station where he called family members for assistance. Later, Jones provided information concerning these events to the police.” State v. Davis, supra, 131 Conn.App. at 52–53. The Appellate Court also noted that, “[c]ontrary to the victim's testimony, Jones, who testified on behalf of the state ․ testified that the defendant was the assailant who had pointed a shotgun at the victim's head during the robbery.” Id., at 53 n. 2.3
The following facts and procedural history are also relevant to the defendant's appeal. By means of a long form information, the state alleged that the defendant committed the crime of robbery in the first degree in violation of § 53a–134 (a)(4).4 In count one of its information, the state alleged that “during the commission of the crime [the defendant] was armed with what he represented by his words or conduct to be a firearm․” (Internal quotation marks omitted.) Id., at 53.
Subsequently, “[o]n January 4, 2010, the defendant filed six written requests to charge covering different instructions. Although one of these requests to charge bore the title ‘Defendant's Request to Charge: Robbery First Degree,’ neither this request nor any other submitted by the defendant covered the elements of robbery in the first degree. On January 4, 2010, the state filed a written request to charge that, among other topics, covered the elements of robbery in the first degree. Following the portion of the request to charge that covered the elements of robbery in the first degree, the state cited to ‘[§ ] 6.4–1 [of the] Connecticut Selected Jury Instructions.’
“On January 5, 2010, immediately after the state rested, the court held a charge conference with the attorneys․ The following is an excerpt from the colloquy that took place during the conference:
“ ‘The Court: I have received the robbery charge [filed by the state], which is the standard charge. I intend to give the robbery [charge] in essence, maybe not exactly, but the robbery charge will be given. The usual charges, the function of the court and the jury, proof beyond a reasonable doubt, burden of proof, circumstantial and direct evidence, they will be given. [I have] the request for conspiracy. Counsel ․ that's your charge, conspiracy? Yes?
“ ‘[The Prosecutor]: Use the state's conspiracy charge, Your Honor?” ‘The Court: Yes. “ ‘[The Prosecutor]: Yes.
“ ‘The Court: Counsel, any objection to the conspiracy charge as presented by—
“ ‘[Defense Counsel]: Your Honor, I have not seen a charge submitted by the state. I ․ could have left it in my office, but I haven't had time to review it. Is it the standard charge? It's robbery?
“ ‘[The Prosecutor]: Throughout the computer. I'm not very fair.
“ ‘The Court: Right off the cyberspace.
“ ‘[Defense Counsel]: Based upon [the prosecutor's] representation, Your Honor, there's no objection․
“Thereafter, the defendant's attorney made an oral motion for a judgment of acquittal. After hearing argument concerning the motion, the court denied it. Following its ruling, the court asked counsel, ‘anything else?’ The state replied in the negative and the defendant's counsel did not raise any additional matters for consideration.
“The next day, January 6, 2010, the court addressed counsel, noting that it had received a written motion for a judgment of acquittal from the defendant. After stating that the motion was denied, the court stated, ‘[a]nything else before the jury comes out?’ The defendant's attorney replied, ‘[n]o, Your Honor.’ Following closing arguments, the court delivered its charge to the jury. After it instructed the jury as to the elements of the offenses at issue, the court excused the jury for a recess. The court, addressing counsel, stated: ‘[T]hat completes the substantive charge. Any comments? Anything I need to correct now? Think about it.’ Following the morning recess, the court asked counsel: ‘Anything I need to add or detract?’ The defendant's attorney replied, ‘I have nothing, Your Honor.’ After the court delivered the remainder of its charge, the defendant's attorney did not raise any objection related to the court's robbery instruction.” (Emphasis added; footnotes omitted.) Id., at 56–59.
The jury returned a verdict of guilty on both counts of part one of the information; see footnote 4 of this opinion; and the trial court rendered judgment in accordance with the verdict. The defendant then appealed from the judgment of the trial court to the Appellate Court, claiming, inter alia, that the trial court improperly instructed the jury that it could find the defendant guilty on the basis of a theory of liability that was not set forth in the state's information.5 Because the defendant did not object to the trial court's jury instructions, he sought review under State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823.
The Appellate Court declined to review the claim on the ground that the defendant had waived any objections to the trial court's jury charges. It reasoned that the trial court's statement that it intended to give the state's proposed charge, which was available on the Judicial Branch website, “in essence, maybe not exactly,” effectively provided the defendant with the proposed instructions. The Appellate Court further reasoned that, because the trial court's jury instructions “mirrored the state's instruction in all material respects”; State v. Davis, supra, 131 Conn.App. at 60; and defense counsel had an opportunity to review those instructions on the Judicial Branch website overnight, counsel's failure to object to the jury instructions constituted an implied waiver under Kitchens.
On appeal to this court, the defendant claims that the Appellate Court's conclusion that he implicitly waived his instructional challenges is inconsistent with the implied waiver doctrine in State v. Kitchens, supra, 299 Conn. at 447. Specifically, the defendant asserts that he did not have a meaningful opportunity to review the jury instructions because the trial court did not provide him with an advance written copy of the instructions, and the court's description of the charge it intended to deliver was ambiguous. The state contends that the Appellate Court correctly concluded that defense counsel implicitly waived any challenge to the court's jury instructions. Alternately, the state claims that the Appellate Court's judgment can also be affirmed on the ground that the defendant waived his claims by assenting to the jury instructions.6
Whether a defendant waives the right to challenge jury instructions is a question of law over which we exercise plenary review. State v. Mungroo, 299 Conn. 667, 672–73, 11 A.3d 132 (2011).
In State v. Kitchens, supra, 299 Conn. at 482–83, we concluded 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 counsel 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.” The doctrine of implied waiver is based on the “idea that counsel had sufficient notice of ․ the jury instructions and was aware of their content․” (Emphasis omitted.) Id., at 487 n. 25. Although the court in Kitchens examined the basis for inferring a knowing and voluntary relinquishment of the right to object to jury instructions; id., at 483–85; it did not establish a broad waiver provision unmoored from the express requirements set out in that case. Our examination of the record leads us to conclude that the trial court's failure to provide the defendant with the precise content of the proposed jury instructions deprived him of a meaningful opportunity to review the charge. Accordingly, we hold that the defendant did not implicitly waive his right to challenge the trial court's instructions on appeal under the implied waiver doctrine announced in Kitchens.
The Appellate Court concluded that the trial court's stated intention to deliver the charges proposed by the state “in essence, maybe not exactly,” met its threshold obligation to “[provide] counsel with a copy of the proposed jury instructions” and to “[allow] a meaningful opportunity for their review․” Id., at 482–83. In so concluding, the Appellate Court determined that the trial court's reference to the robbery instruction set forth in the state's request to charge, which was materially similar to the model instruction posted on the Judicial Branch website, but broader than the allegation set forth in the state's information, adequately provided the defendant with the proposed jury instruction and a meaningful opportunity for review. State v. Davis, supra, 131 Conn.App. at 62–63.
We agree with the Appellate Court that “the dispositive factor is whether the court has provided counsel with an opportunity to conduct a meaningful review of its proposed charge so that ‘the defendant may be deemed to have knowledge of any potential flaws therein,’ “ and that “[a]n opportunity for review necessarily entails that the court convey the substance of its charge in such a manner that the parties may review [the] proposed instructional language․” Id., at 62. Under the facts of the present case, however, we disagree that the trial court's statement that it intended to deliver the instructions on the Judicial Branch web-site “in essence, maybe not exactly” met the standard for implied waiver set out in Kitchens.
Our review of the record reveals that the only discussion of the jury instructions, prior to the delivery of the charge to the jury, was limited to the state's proposed charge, which defense counsel stated he had not read, and ambiguous references to the model instructions on the Judicial Branch website. Although the court represented that its jury charge would be derived from the model instructions, it was equivocal as to the extent that the charge would conform to the model. We conclude that the trial court's statement that it intended to deliver the model instructions “in essence, maybe not exactly,” failed to provide the defendant with adequate notice of the actual content of the court's proposed instructions.7 Accordingly, defense counsel was not afforded a meaningful opportunity to review the instructions necessary to infer a wilful and knowing waiver of instructional challenges. See, e.g., State v. Brown, 299 Conn. 640, 659, 11 A.3d 663 (2011) (“[b]ecause we cannot reasonably conclude that counsel was aware in advance of the instructional deficiency, we will not conclude that the defendant has waived his right to challenge the charge on direct appeal”).8
The threshold question for our implied waiver analysis is whether the trial court provided the proposed charges to the defendant prior to delivery of its instructions to the jury. Although the Appellate Court correctly noted that “[t]he defendant does not assert that his trial counsel was not provided with a copy of the state's request to charge”; State v. Davis, supra, 131 Conn.App. at 59; the trial court's proposed instructions, not the prosecution's request to charge, is the touchstone of our implied waiver analysis. State v. Kitchens, supra, 299 Conn. at 482–83. It is the trial court's obligation to provide the defendant with the proposed instructions and a meaningful opportunity for review.9 Accordingly, we reject the state's contention that “[its] request to charge served as the functional equivalent of a copy of the court's draft instructions.”
Given the lack of clarity concerning the proposed instructions, the state's argument that the defendant had an opportunity to review the model instructions on the Judicial Branch website overnight is inapposite. Although we have noted that “in every post-Kitchens case in which defense counsel was given the opportunity to review the proposed jury instructions overnight, we have concluded that defense counsel had received a meaningful opportunity to review the proposed instructions under the Kitchens test”; State v. Webster, 308 Conn. 43, 63, 60 A.3d 259 (2013); in all of these cases, defense counsel was provided with the actual proposed charges. See, e.g., id., at 261–63; State v. Mungroo, supra, 299 Conn. at 673–76; State v. Brown, supra, 299 Conn. at 657–59; State v. Akande, 299 Conn. 551, 561, 11 A.3d 140 (2011). In contrast, in the present case the trial court's ambiguous reference to the model instructions on the Judicial Branch website failed to put defense counsel on notice of the substance of the proposed instructions. Because the trial court did not provide counsel with the actual proposed instructions, the length of time between the charge conference and the delivery of the instructions to the jury does not inform the question of whether defense counsel had a meaningful opportunity for review.10
Our conclusion is consistent with the policies underlying the implied waiver doctrine. First, declining to infer a waiver under the particular circumstances of the present case does not reward the defendant with a second bite at the apple. In Kitchens, we explained that permitting a defendant to challenge instructions on appeal after a meaningful opportunity to review “would amount to allowing [the defendant] to ․ ambush the state [and the trial court] with that claim on appeal” after his trial strategy had failed. (Internal quotation marks omitted.) State v. Kitchens, supra, 299 Conn. at 470. In the present case, however, the defendant gained no advantage by permitting the state to enlarge upon the theory of liability alleged in its long form information. Although a defendant may implicitly waive objections to jury instructions even without “obvious tactical reasons”; id., at 481; the absence of any benefit to the defendant in the present case lends further support to our conclusion that he did not implicitly waive his instructional challenges.
In addition, inferring a waiver under these circumstances is inconsistent with the policy of encouraging meaningful on-the-record charge conferences. State v. Baptiste, 302 Conn. 46, 57–58, 23 A .3d 1233 (2011). In State v. Kitchens, supra, 299 Conn. at 493–94, we presumed that delivery of jury instructions and a meaningful on-the-record charge conference provided a basis for a defendant's reflection on the proposed charge.11 The defendant's failure to object to the proposed charges subsequent to these procedural safeguards gave rise to an inference that the defendant knowingly and voluntarily relinquished the right in question. Id. In announcing this rule in Kitchens, we sought to encourage these procedures to facilitate meaningful review of jury instructions. See State v. Baptiste, supra, at 57–58. In contrast, expanding the implied waiver doctrine to situations in which a trial court failed to put the defendant on notice of its actual proposed jury instructions would undermine this policy.
Finally, the fact that § 53a–134 (a)(4) incorporates accessory liability is of no consequence to our implied waiver analysis. The jury charge must conform to the specific allegations in the information, not every theory of liability included in the statute under which the defendant is charged. See State v. Peterson, 13 Conn.App. 76, 83–86, 534 A.2d 1237 (1987). Accordingly, we disagree with the state's contention that the inclusion of accessory liability in the statute put the defendant on notice that the trial court's instructions would include a theory of liability not alleged in the state's information, such that his failure to take an exception can be interpreted as an implied waiver.
The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the defendant's claim of instructional error.
In this opinion ZARELLA and EVELEIGH, Js., concurred.
In State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), this court held that a defense counsel's failure to object to the trial court's jury instructions after having been afforded a meaningful opportunity to review them gives rise to a conclusive inference that, for strategic reasons, defense counsel knowingly and intentionally waived the defendant's right to challenge the instructions on constitutional grounds.1 See id., at 474, 482–83. As the Appellate Court correctly determined, the present case, which involves a claim by the defendant, Raquann Tyrone Davis, that the trial court improperly had instructed the jury that it could find him guilty of robbery in the first degree on an uncharged theory of liability,2 falls squarely within the Kitchens waiver doctrine. See State v. Davis, 131 Conn.App. 50, 62–65, 26 A.3d 128 (2011). Straining to avoid the obvious unfairness of faithfully applying Kitchens to the present case—because, as the majority aptly notes, “the defendant gained no [strategic] advantage by permitting the state to enlarge upon the theory of liability alleged in its long form information”—the majority relies on demonstrably illogical and unconvincing arguments in refusing to acknowledge that Kitchens plainly precludes the defendant's claim of instructional impropriety. If the majority now has second thoughts about this court's holding in Kitchens—as it should, for the reasons set forth in part II of this opinion—then the majority should say so. If not, the majority should acknowledge that applying our holding in Kitchens to the facts of the present case leads to one, and only one, conclusion: for purposes of Kitchens, defense counsel had adequate written notice of the jury instruction at issue and, therefore, must be presumed to have waived the defendant's right to object to that instruction. Consequently, despite my strong disagreement with Kitchens,3 I ordinarily would feel bound to follow its holding and to affirm the judgment of the Appellate Court in the present case.4 I do not do so, however, because the majority does not consider itself so bound, and because I continue to believe that our decision in Kitchens was manifestly incorrect. Thus, this concurrence consists of two parts: first, I explain why Kitchens clearly controls this case, and, second, I briefly elaborate on why, although Kitchens is controlling, I nevertheless decline to follow it in the present case.
The relevant facts are simple and straightforward. After the state rested its case against the defendant, the trial court informed defense counsel that it had received the state's written request to charge on robbery in the first degree, which, as the court also noted, is the standard form jury instruction that appears on the Judicial Branch website. With respect to that instruction, the court stated: “I intend to give the robbery [charge] in essence, maybe not exactly, but the robbery charge will be given.” Defense counsel responded that he did not have the state's request to charge with him, and that he had not yet read it, but that, because it was the standard charge, he had no objection to it. The next day, the court instructed the jury on the elements of robbery in the exact terms of the standard form jury instruction, as reproduced verbatim in the state's request to charge, that had been the subject of the colloquy between the court and defense counsel the previous day. Following a recess, both counsel once again informed the court that they had no objection to the instruction as given.
In Kitchens, this court held 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 counsel 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.” State v. Kitchens, supra, 299 Conn. at 482–83. In other words, in such circumstances, defense counsel will be found to have waived any and all potential claims of instructional impropriety that he did not raise. The court in Kitchens also stated that the waiver “determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” Id., at 483. Finally, for purposes of this determination, it is presumed that “counsel is competent and capable of acting on behalf of the defendant in matters concerning trial management, including waiver of the defendant's right to challenge a jury instruction․” Id., at 486–88.
In the present case, it is undisputed that (1) defense counsel had a written copy of the charge on robbery in the first degree that the court told counsel it intended to give, “in essence,” to the jury,5 (2) counsel had ample time and opportunity to consider that charge before the court instructed the jury, (3) counsel expressly stated that he did not object to the charge as given, and (4) the charge was identical to the standard charge contained in the state's requested instruction and on the Judicial Branch website. Under these facts, it could hardly be clearer that the Kitchens requirement—a meaningful opportunity to review the court's proposed charge—was met.
In a paradigmatic example of the exaltation of form over substance, the majority reaches a different conclusion, focusing, first, on the fact that the trial court informed counsel that it would charge the jury, “in essence, maybe not exactly,” in accordance with the standard jury charge on first degree robbery contained in the state's requested instruction. On the basis of this language, the majority asserts that the court's statement concerning the charge was so “ambiguous” and “equivocal” that it “failed to provide the [defense] with adequate notice of the actual content of the court's proposed instructions.” Text accompanying footnote 7 of the majority opinion. According to the majority, the purported ambiguity and resulting lack of notice stemmed from the court's failure to inform counsel “of the [precise] substance of the proposed instructions,” which, the majority asserts, deprived counsel of a “meaningful opportunity to review the instructions.”
It is an understatement to say that the majority's reasoning is unpersuasive. There is absolutely nothing “ambiguous” or “equivocal” about the court's statement that it would give the state's proposed charge “in essence, maybe not exactly․” In fact, the statement was perfectly clear: the court intended to give the proposed charge, but it retained the option of making immaterial or inconsequential changes to that charge. I do not see how the court's statement can possibly be interpreted differently, and I also do not see how it is possible to conclude that competent defense counsel did not have adequate notice of the proposed charge merely because the court indicated that it might make immaterial changes to it. Indeed, when a court provides the parties with a copy of its proposed charge, it goes without saying that the court retains the option of deviating from the script in a way that has no material bearing on the meaning or substance of the charge. Of course, if, in the present case, the charge that the court ultimately gave to the jury did deviate materially from the proposed charge, then, under Kitchens, defense counsel would not be deemed to have had adequate notice of that charge. That did not happen in the present case; rather, the language of the charge as given was identical to the language of the proposed charge.
With respect to its assertion that defense counsel in the present case somehow did not have a meaningful opportunity to review the charge, there is only one way for the majority to reach that result, that is, by concluding that competent counsel would not be obliged either to retrieve the state's proposed charge from his file or to obtain the standard form charge on the Judicial Branch website, and then to review the charge. This is so because it is undisputed that, for purposes of Kitchens, defense counsel had sufficient time to review a written copy of the charge, and, thus, ordinarily, Kitchens requires us to presume that counsel did review the charge, that he did recognize every possible constitutional infirmity with it, and that, by not objecting to the charge, he did knowingly and intentionally waive every such infirmity. Thus, only if counsel in the present case was not required to review the charge, despite having been afforded a fair opportunity to do so, can he be deemed not to be on notice of it. In fact, that necessarily is the premise of the majority's argument: because the court's statement that it would give the proposed or standard charge “in essence, maybe not exactly” was so “ambiguous” and “equivocal,” defense counsel was under no obligation to review the charge. Not surprisingly, one scours the majority opinion in vain to find its acknowledgment of this premise, no doubt because it is so completely unfounded. Obviously, no competent attorney in defense counsel's position would—or should—feel free to conduct himself in the cavalier and unprofessional manner envisioned by the majority—that is, to simply ignore the charge that he had in his possession and that he readily could have obtained online—merely because the trial court stated that it would be giving the proposed or standard charge “in essence,” although perhaps not word for word. And yet, that is the majority's specific conclusion: a defense attorney reasonably cannot be expected to review the proposed charge unless the court promises to give it word for word and not to deviate from it, even in the most immaterial or inconsequential way. There simply is no rational justification for this conclusion, and the majority makes no attempt to offer one.6
Rather, as the Appellate Court succinctly explained, “the fact that the [trial] court, in discussing the state's requested robbery instruction, stated that it might not use the state's exact language is of no consequence to our analysis. Plainly, the court stated that it intended to deliver ‘in essence’ the state's requested robbery instruction. Afforded its reasonable interpretation, this statement conveyed that the court intended to deliver an instruction that mirrored the state's instruction in all material respects․ [T]his, in fact, occurred.” State v. Davis, supra, 131 Conn.App. at 60.
Instead of acknowledging the obvious logic of the Appellate Court's reasoning, the majority ignores it altogether and asserts, instead, that, “[i]f anything is indisputable ․ it is that when the trial court stated that the instruction it intended to give on robbery in the first degree would be ‘in essence, maybe not exactly,’ the model instruction available on the Judicial Branch website and reproduced by the state in its proposed charge, the court indicated that it would give a charge that did not mirror the model instruction in every respect. Accordingly, the precise substance of the intended charge could not have been clear to defense counsel when he agreed to it.” (Emphasis omitted.) Footnote 10 of the majority opinion. This argument is specious, first, because it is predicated on an incorrect premise and, second, because it is beside the point. The premise on which this argument is founded, that is, that the court “indicated that it would give a charge that did not mirror the [proposed or] model instruction in every respect”; (emphasis omitted) id.; is simply incorrect because the statement surely was not a representation that the court would give a charge that did not mirror the model charge exactly; rather, it was a representation that the court “maybe” or perhaps would not give the proposed or standard charge “exactly․” In stating that it might not give the charge “exactly,” the court also expressly retained the option of giving it “exactly,” which is precisely what the trial court did do.
Other flaws in the majority's argument are even more glaring and more fundamental. First, even if it is assumed that “the precise substance of the intended charge could not have been clear to defense counsel when he agreed to it,” as the majority asserts; footnote 10 of the majority opinion; the question is not what counsel believed or did not believe when he agreed to the charge but what he would have known about the charge if he had read it before the court instructed the jury the next day. If he had, the charge would have been perfectly clear to him. That is what we stated in Kitchens: counsel must be given an adequate opportunity to review the proposed charge, and, if the court affords counsel that opportunity, a reviewing court will deem counsel to have reviewed it and to have waived any challenge to the charge that counsel did not raise in the trial court.7 See State v. Kitchens, supra, 299 Conn. at 482–83. As I explained, the majority's position necessarily is founded on its threshold or predicate determination that the trial court's statement with respect to its plan to give the state's proposed charge was so vague and so nebulous as to the content of the charge that a competent defense attorney reasonably would feel free to decline to read the proposed charge because the court's statement provided no meaningful guidance. For the reasons set forth previously, this is a wholly unreasonable and illegitimate proposition.
Second, to the extent that it can be said that counsel was unaware of “the precise substance of the intended charge”; (emphasis added) footnote 10 of the majority opinion; the obvious response to the majority's assertion is, so what? Why does the “precise” substance or language of the proposed charge matter if, as the court stated here, it intends to give that charge in all material respects? Of course, it does not matter at all, because an immaterial or inconsequential difference is, by definition, a difference that does not matter. If counsel had reviewed the proposed charge, as he was required to do, he would have known what it said, and he would have known that the charge as given did not deviate at all from the proposed charge. In those circumstances, there simply is no possible justification for concluding that defense counsel had inadequate notice of the intended charge for purposes of Kitchens.8
The majority advances a second reason for finding that Kitchens is inapplicable to the present case, namely, that the trial court itself never provided a copy of its proposed charge to defense counsel. This contention fares no better than the majority's first argument. Although acknowledging that defense counsel had a copy of the state's request to charge on robbery, which mirrored the standard form jury charge from the Judicial Branch website, and that the state's requested charge was identical in all material respects to the charge that the court told counsel it would give to the jury, the majority asserts that only instructions that the court personally provides to counsel will suffice because, under Kitchens, “the trial court's proposed instructions, not the [state's] request to charge, is the touchstone of our implied waiver analysis.” Although the majority's assertion is correct as a general matter, the majority conveniently overlooks the “particular facts and circumstances of [the] case,” which, pursuant to Kitchens, and common sense, we must consider. State v. Kitchens, supra, 299 Conn. at 483. Viewed in the context of those facts and circumstances, it is perfectly obvious that it makes no difference whether the charge proposed by the court is memorialized in a document that the court itself provides to the parties or whether the court tells counsel that its proposed instruction is the very same instruction that is set forth in the state's written request to charge, a copy of which defense counsel had been provided in a timely manner. In other words, there was no need for the court to give counsel a copy of a document that he already had. Thus, in the present case, the distinction that the majority draws between a written copy of the proposed charge that is provided to counsel by the court, on the one hand, and a copy of the charge contained in the state's written request to charge, on the other, is a classic example of a distinction without a difference.9
It is apparent, therefore, that the two arguments proffered by the majority to support its reversal of the judgment of the Appellate Court are mere makeweights and that, as the Appellate Court concluded, Kitchens bars the defendant's claim of instructional impropriety. Nevertheless, like the majority, I would not preclude the defendant from pursuing his claim on appeal. In contrast to the majority, however, I decline to so preclude the defendant because, in my view, Kitchens represents a radical, unwarranted and unjust departure from the Golding doctrine.10
As I previously discussed, Kitchens is founded on the premise, advanced by the state in that case, that defense counsel's failure to object to the trial court's jury charge, after having been afforded a reasonable opportunity to review it, gives rise to an inference that counsel waived all constitutional challenges to the charge.11 See id., at 483 (“[i]t is well established that implied waiver ․ arises from an inference that the defendant knowingly and voluntarily relinquished the right in question” [emphasis in original] ). In other words, if two conditions are met, namely, that counsel had a meaningful opportunity to review the charge and did not object, a blanket waiver will be implied. Of course, waiver is to be distinguished from forfeiture. As the court explained in Kitchens, “waiver is the intentional relinquishment or abandonment of a known right, whereas forfeiture is the failure to make the timely assertion of that right”; (internal quotation marks omitted) id., at 474; and it bears emphasis that this court expressly rejected the state's alternative argument in Kitchens that counsel's acquiescence in or acceptance of the charge “represents a forfeiture that precludes Golding review.” (Emphasis added.) Id., at 474. In declining the state's invitation in Kitchens to subject to forfeiture any potential constitutional claim merely because it was not asserted in a timely manner, the court explained that subjecting a constitutional right to forfeiture for that reason would be inconsistent with Golding. See id., at 474–75. I fully agree with this conclusion because Golding embodies the sound judicial policy that, in the absence of a knowing and intentional waiver, a criminal defendant is entitled to the opportunity to prevail on an unpreserved constitutional claim that meets the four Golding criteria. See footnote 10 of this opinion. Thus, the court in Kitchens correctly explained that, under Golding and its progeny, defense counsel will not be deemed to have abandoned the defendant's right to appellate review of an unpreserved constitutional challenge to the court's jury charge merely because counsel failed to object to the allegedly improper instruction in the trial court; rather, the claim will be treated as waived for purposes of Golding if, and only if, the record reflects that counsel's failure to raise the claim in the trial court was the product of an intentional, strategic decision, made with full knowledge of the claim, to abandon the claim. See State v. Kitchens, supra, 299 Conn. at 474–75. Kitchens is otherwise fundamentally flawed, however, because, as I explain hereinafter, it is predicated on the demonstrably unsupportable presumption that counsel's failure to object to the jury charge after fair notice of the charge signifies a knowing and intentional waiver of any constitutional claim that counsel did not raise in the trial court. Indeed, in relying on this groundless presumption, the court in Kitchens effectively adopted the very same forfeiture model that it purported to reject as incompatible with Golding.
In accordance with Kitchens, defense counsel is deemed to have waived any and all constitutional claims that he did not raise at trial. See id., at 483. This blanket waiver includes the entire universe of meritorious and nonmeritorious claims, because Kitchens treats them all as having been waived. Consequently, because waiver is the intentional relinquishment or abandonment of a known right; id., at 469; Kitchens requires us to presume, first, that counsel thought of every possible claim, from the most meritorious 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 Kitchens is predicated on a palpably unrealistic assumption. For that reason alone, the Kitchens waiver doctrine should be deemed invalid.
Even if the Kitchens test were based on a plausible reality, which it is not, its approach is completely at odds with the manner in which competent criminal defense counsel actually conduct themselves in representing their clients. Far from intentionally abandoning potentially meritorious constitutional claims, competent defense attorneys invariably raise any and all such claims of which they are aware because there simply is no legitimate justification for not doing so.12 In light of Kitchens, however, whenever the trial court provides defense counsel with a reasonable opportunity to review a written copy of the charge prior to its delivery to the jury, reviewing courts now presume, conclusively and without the possibility of rebuttal, that defense counsel has considered and intentionally abandoned a virtually limitless number of possible constitutional challenges, including potentially meritorious ones, merely by failing to raise them. As I stated previously, even if this were humanly possible—and of course it is not—it is a presumption that bears absolutely no relation to the way in which competent defense counsel go about representing their clients. Thus, the court in Kitchens had it backward: instead of presuming that competent defense counsel does not intend to waive his client's constitutional rights unless the record clearly and unequivocally reflects such an intent, Kitchens presumes a knowing and intentional waiver from a record that is silent on the issue. Not surprisingly, this approach cannot be squared with the settled principle that, under the strict waiver standard applicable when, as in the present case, important rights are at stake, courts “indulge every reasonable presumption against waiver of fundamental constitutional rights and ․ [do] not presume acquiescence in the loss of [such] rights.” (Internal quotation marks omitted.) State v. Gore, 288 Conn. 770, 777, 955 A.2d 1 (2008).
The court in Kitchens was obliged to acknowledge that determining whether a knowing and intentional waiver may be implied from the circumstances depends on a fact based, case specific inquiry. See, e.g., State v. Woods, 297 Conn. 569, 583, 4 A.3d 236 (2010) (determination of waiver of constitutional right requires consideration of totality of circumstances). In truth, however, Kitchens adopts a “one size fits all” methodology pursuant to which only two factors merit consideration: whether the proposed charge was in writing and whether defense counsel was afforded a reasonable period of time to review the charge. Nothing else matters, and no other facts or circumstances are relevant to the inquiry. How can this be, if, as the court in Kitchens conceded, a finding of implied waiver can be made only after considering all the facts and circumstances? The explanation is that Kitchens is not a waiver case at all. It is, rather, a forfeiture case masquerading as a waiver case. Under Kitchens, the defendant's right to raise a claim of instructional impropriety on appeal is forfeited if it is not raised in a timely manner after adequate notice of the proposed charge. Although this was abundantly clear when Kitchens was decided; see State v. Kitchens, supra, 299 Conn. at 544 n. 10 (Palmer, J., concurring) (“in reality, the majority's decision [in Kitchens ] rests on the forfeiture doctrine, pursuant to which defense counsel's failure to make a claim in a timely manner, that is, at trial, bars the defendant from raising the claim on appeal”); see also id., at 541 n. 8 (Palmer, J., concurring) (“the majority [in Kitchens] effectively embraces the forfeiture doctrine while purporting to reject it”); it also has been amply demonstrated by our post-Kitchens cases. See, e.g., State v. Webster, 308 Conn. 43, 63, 60 A.3d 259 (2013) (“[w]e note that in every post-Kitchens case in which defense counsel was given the opportunity to review [a written copy of] the [court's] proposed jury instructions overnight, we have concluded that defense counsel had received a meaningful opportunity to review the proposed instructions under the Kitchens test”).
That Kitchens is not truly predicated on a waiver theory also is readily apparent from the refusal of the majority in that case to accept the fact that, as I explained in my concurring opinion in that case, the inference of a knowing and intentional waiver that was invented in Kitchens easily can be avoided by a simple representation by trial counsel, following his review of the court's proposed jury charge, that he does not intend to waive any potential constitutional claims, and that his failure to object indicates only that he is unaware of any such claim or claims. See State v. Kitchens, supra, 299 Conn. at 541 (Palmer, J., concurring) (explaining that counsel can readily circumvent inference of waiver created under Kitchens by express disavowal of any such waiver). Such an express representation by counsel—who, in accordance with Kitchens, is deemed to be acting competently and appropriately on behalf of the defendant—necessarily would trump any possible suggestion of an implied waiver by conduct. After all, under Kitchens, waiver is implied only because the court in that case concluded that counsel's conduct in failing to object to the court's charge after having been afforded a meaningful opportunity to review it gives rise to an inference that counsel intended to waive the defendant's rights. If, however, defense counsel, who is presumed to be competent, expressly states that his failure to object should not be mistaken for waiver, because, in fact, he is not intending to waive any potential constitutional claim, then there is absolutely no reason why the reviewing court should nevertheless insist that counsel had intended to waive the defendant's rights.13 Indeed, although purporting to acknowledge that the waiver determination can be made only upon a careful consideration of all the facts and circumstances, the court in Kitchens nevertheless concluded that defense counsel's express disavowal of waiver has no bearing on the waiver issue. Id., at 488 n. 25 (“we unequivocally reject as legally unsupportable the assertion that counsel may expressly disavow waiver by informing the trial court that he is ‘unaware’ of any constitutional infirmities in the jury instructions”). There simply is no logical justification for this conclusion because it is completely at odds with the concept of a knowing and intentional waiver; the conclusion makes sense only when one appreciates the Kitchens model for what it is, namely, a forfeiture model and not a waiver model.
The illogic of the court's reasoning in Kitchens is highlighted by its explanation that “implied waiver rests on the ‘legal fiction’ that, if 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 constitutional 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 in original.) Id., at 487 n. 25. It is entirely unreasonable to conclude that an inference based on an assumption resting on a legal fiction can somehow take precedence over an express, clarifying statement by competent counsel.
Yet another reason to reject the court's holding in Kitchens stems from the manner in which the court in that case would treat the alleged waiver of a claim of plain error. Under Kitchens, even the most inexplicable failure by counsel to object to a manifestly unconstitutional jury charge will be deemed to represent counsel's strategic waiver of the claim if counsel had been given a meaningful opportunity to review the charge. See, e.g., State v. Webster, supra, 308 Conn. at 60–61 n. 14 (Kitchens waiver doctrine applies to jury instruction that allegedly failed to set forth essential elements of crime charged); cf. State v. Darryl W ., 303 Conn. 353, 367 and n. 15, 33 A.3d 239 (2012). Consistent with this approach, the court in Kitchens observed that, “in keeping with these principles ․ the finding of a valid waiver precludes a finding that a jury instruction constitutes plain error because a valid waiver means that there is no error to correct.” State v. Kitchens, supra, 299 Conn. at 474 n. 18. As this court repeatedly has explained, plain error is error “of such monumental proportion that [it] threaten[s] to erode our system of justice and work a serious and manifest injustice on the aggrieved party”; (internal quotation marks omitted) State v. Sanchez, 308 Conn. 64, 76–77, 60 A.3d 271 (2013); and, consequently, it is reserved “for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id., at 77. Under this court's pronouncement in Kitchens, however, even an impropriety in the jury charge that is so glaring and so harmful as to constitute plain error will be found to have been waived by implication if the Kitchens notice requirement has been met. In my view, it is patently unreasonable for a reviewing court to infer that defense counsel knowingly and intentionally waived the defendant's right to challenge an instruction that is so grossly and obviously deficient as to constitute plain error.14
In sum, Kitchens forecloses claims of instructional impropriety under Golding for reasons that have nothing to do with waiver and everything to do with forfeiture. Indeed, it is perfectly clear that Kitchens is a rule of forfeiture. If the trial court follows certain procedures to the letter—the court provides counsel with an exact copy of the jury charge twenty-four hours in advance—counsel forfeits the defendant's right to object to the court's charge if counsel does not object in a timely manner. As the majority in Kitchens recognized, however, forfeiture is not a proper basis for precluding Golding review of such claims because Golding reflects the policy determination that, as a rule, a defendant's interest in obtaining review of an unpreserved constitutional claim outweighs the interest of the state and the court in enforcing procedural rules designed to ensure that claims are made in a timely manner. See State v. Kitchens, supra, 299 Conn. at 474–75. Consequently, in Kitchens, the court could not achieve the result that it did without either overruling Golding as applied to claims of instructional impropriety or adopting a forfeiture model in violation of Golding and denominating it as a waiver model. The court chose the latter. Although application of that model to the present case leads inexorably to the conclusion that the defendant waived his right to challenge the jury instruction at issue, that conclusion is wrong because Kitchens is wrong.15 Nevertheless, in the ordinary course, I would be constrained to follow Kitchens and to reach a contrary result, even though that result would be contrary to Golding and to the important principles on which Golding is founded. I see no reason to follow Kitchens in the present case, however, because even the majority cannot bring itself to do so.16 I therefore concur in the result that the majority reaches.
I agree with the majority that the implied waiver rule set forth in State v. Kitch ens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011), should not extend to the facts of the present case, where the trial court failed to provide the defendant, Raquann Tyrone Davis, with a written copy of the jury charge and simply stated that the charge would be “in essence” the one provided on the Judicial Branch website. Nonetheless, I write separately to acknowledge the concerns that Justice Palmer has renewed regarding the underpinnings of the per se, irrefutable presumption set forth in Kitchens and the question of whether an implied waiver would arise even if defense counsel expressly disavowed any knowledge of legitimate claims that counsel could advance. I also note that recent decisions questioning whether the implied waiver rule in Kitchens applies to claims of plain error; see State v. Sanchez, 308 Conn. 64, 74–75 n. 5, 60 A.3d 271 (2013); State v. Webster, 308 Conn. 43, 64, 60 A.3d 259 (2013) (Rogers, C. J., concurring); State v. Darryl W., 303 Conn. 353, 371–72 n. 17, 33 A.3d 239 (2012); lend some support to Justice Palmer's contention that the rule in Kitchens is, in effect, a rule of forfeiture, not waiver.1 Irrespective of the merits of such concerns, I note that the defendant has not asked us to consider modifying or overruling Kitchens in the present case. Not having previously weighed in on the merits of the question presented in Kitchens, I believe I am obliged to apply that precedent. Therefore, I reserve judgment on whether, faced with such a request, we should reconsider that precedent.
I respectfully concur.