Supreme Court To Reconsider State v. Kitchens

On October 1, 2014, the Connecticut Supreme Court issued the following order on the defendant’s petition for certification to appeal the Appellate Court’s decision in State v. Herring:

On consideration of the petition by the defendant for certification to appeal from the Appellate Court . . . it is hereby ordered that said petition be, and the same is hereby granted, limited to the following issue: “Should this court overrule State v. Kitchens, thereby permitting review of the defendant’s unpreserved claim of instructional impropriety?  If so, is the defendant entitled to prevail on that claim under Golding?

The Supreme Court’s decision in Kitchens, penned by Justice Zarella, has been controversial since the day it was published. Kitchens held that simply by participating in a charging conference and failing to object to a proposed jury instruction, a defendant waives his or her right to challenge that instruction on appeal on constitutional grounds under Golding review.

In a concurring opinion in Kitchens, Justice Katz, joined by Justices Norcott and Palmer, said the following of the majority opinion:

This court’s jurisprudence, namely our well established doctrines of waiver and induced error, dictate that Golding review of unpreserved instructional errors should be foreclosed only when the record reflect that the defendant, through defense counsel, knowingly and intentionally relinquished his objection to the error. Instead, the majority conflates and mischaracterizes this court’s precedents in order to lend credence to a wholly novel system of categorizing unpreserved trial errors under which, essentially, a defendant will be deemed to have waived Golding review of an instructional claim merely by participating in a charging conference and failing to object to jury instructions proposed by the court or the state.

In order to justify this approach, the majority employs a public policy analysis that contravenes the purpose and underlying principles, established over forty years of jurisprudence, of appellate review of unpreserved trial errors.

Ouch.  Even though she has been off the bench for several years now, Justice Katz’s concurrence in Kitchens still resonates.  Stay tuned.